| Recent Dissents and Concurrences In the Houston Courts of Appeals |
| FREQUENCY OF DISSENTING AND CONCURRING OPINIONS. Over the course of the lat fiscal year ending August 31, 2009, the justices of the First Court of Appeals delivered 24 separate opinions, 15 of which where dissents and 9 of which were concurrences. Justice Evelyn Keyes led the court in the number of dissenting opinions with 8 such opinions, followed by Justice Terry Jennings with three. Several members of the court did not issue dissenting opinions at all. Justices Terry Jennings and Jane Bland wrote 3 concurring opinions each. Justice Tim Taft wrote 2, and Chief Justice Sherry Radack one. Dissents and Concurrences are rare on the First Court of Appeals. They represent only approximately 2% of all opinions issued by the court, and 3.5% of the signed opinions. On the Fourteenth Court of Appeals, which also has a membership of nine and a comparable annual case load, dissenting and concurring opinions are more common. In FY 2008-2009 there were 25 concurrences and 22 dissents, for a total of 47, which is 4.4% of all opinions for that time period, or 8.2% of signed opinions on the merits. Justice Kem Frost turned in the largest number of concurring opinions (9) and, with Justice Edelman, led the court in dissents (5 each). Justices Frost and Edelman were responsible for more than half of the separate opinions on the Fourteenth Court of Appeals in FY 2008, although Edelman had already retired and had a much reduced caseload. Justice Charles Seymore wrote four dissents; Justice John Anderson three. 2010 HOUSTON COURT OF APPEALS CASES WITH CONCURRING OR DISSENTING OPINIONS Justice Seymore Expresses Public Policy Concerns over Enforcement of Arbitration Agreement in Attorney-Client Disputes Pham v. Letney (Tex.App.- Houston [1st Dist.] March 4, 2010)(Hedges) (arbitration agreement in legal services contract between lawyer and client enforced by mandamus, interlocutory appeal of order denying motion to compel arbitration dismissed, FAA applied, TAA would be preempted) INTERLOCUTORY APPEAL DISMISSED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Justice Sullivan 14-08-01153-CV Steven Tuan Pham v. Shelly Letney Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton Dissenting Opinion by Justice Seymore in Pham v. Letney (In consideration of the unique relationship between attorney and client, Justice Seymore writes dissent to articulate his concern about mandatory arbitration provisions in attorney-client agreements) MANDAMUS CASE SEPARATELY DOCKETED: In re Tuam Pham (pdf) (Tex.App.- Houston [1st Dist.] March 4, 2010)(Hedges)(arbitration mandamus granted in lawyer-client dispute) MOTION OR WRIT GRANTED: Opinion by Chief Justice Adele Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00387-CV In Re Steven Tuam Pham Appeal from 215th District Court of Harris County Dissenting Opinion by Justice Seymore In re Tuam Pham (pdf) Harris County Flood Control District v. Great American Ins. Co. (Tex.App. - Houston [14th Dist.] Feb. 25, 2010)(Hedges) (plea to the jurisdiction governmental immunity, prompt payment act, quantum meruit) Appellant, Harris County Flood Control District, appeals from the denial of its plea to the jurisdiction on the claims of appellee, Great American Insurance Company, for quantum meruit and attorney’s fees. Because we conclude that appellant has not waived its immunity relative to those claims, we reverse and dismiss in part, affirm in part, and remand. AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Senior Justice Margaret Mirabal 14-09-00571-CV Harris County Flood Control District v. Great American Insurance Company Appeal from 157th District Court of Harris County Trial Court Judge: Randy Wilson Dissenting Opinion by Justice Mirabal in Harris County Flood Control Dist. v. Great American Ins. Co. (re governmental immunity & attorneys fees; such fees are not a cause of action, but a remedy) Teel v. Shifflett (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost) (protective order against ex-girlfriend, same household finding affirmed, constitutional challenge not properly presented, intimate partner finding not supported by the pleadings or tried by consent) This is an appeal from a protective order entered against a man’s former girlfriend after the trial court determined that the former girlfriend committed family violence against him and was likely to commit family violence in the future. In four issues, the former girlfriend challenges (1) the constitutionality of the statute under which the protective order was issued, (2) a recitation in the judgment that the parties were “intimate partners” pursuant to 18 U.S.C. §§ 922(g)(8) & 921(a)(32), (3) the legal and factual sufficiency of the evidence to support a finding that the former girlfriend was a household member, and (4) the legal and factual sufficiency of the evidence to support a finding that family violence is likely to occur in the future. We modify the judgment to delete the intimate-partners finding and we affirm the trial court’s judgment as modified. AFFIRMED AS MODIFIED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00836-CV Ashleigh Elise Teel v. Kenneth Richard Shifflett Appeal from 309th District Court of Harris County Trial Court Judge: David D. Farr Concurring Opinion by Justice Brock Yates in Teel v. Shifflett (no right to jury trial in suit for protective order under family code) Dixon Financial Services, Ltd. v. Chang (pdf) (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(Higley) (no evidence summary judgment standard, attorney's fees as damages) AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Higley Before Justices Jennings, Keyes and Higley 01-07-00233-CV Dixon Financial Services, Ltd. and Hyperdynamics Corporation v. James Chang, Nick H. Johnson, Riley L. Burnett, Jr., and Johnson, Burnett & Chang, L.L.P. Appeal from 215th District Court of Harris County Trial Court Judge: Hon. Levi J. Benton Dissenting Opinion by Justice Jennings in Dixon Financial v. Chang (pdf) Physio, Ltd v. Naifeh (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Yates) (employment law - wrongful termination; liability on Sabine-Pilot wrongful termination claim) Appellants appeal the trial court’s judgment holding them individually liable for firing appellee for the sole reason that she refused to perform an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Because we hold that the Sabine Pilot doctrine should not be extended to impose liability on individual employees rather than the plaintiff’s employer, we reverse and render. DISMISSED IN PART AND REVERSED AND RENDERED IN PART: Opinion by Justice Brock Yates Before Justices Brock Yates, Hudson and Sullivan 14-08-00017-CV Physio GP, Inc., Physio, Ltd, Tanja Saadat and Shawn Saadat v. Natalie Naifeh Appeal from 295th District Court of Harris County Trial Court Judge: Tracy Kee Christopher Dissenting Opinion by Senior Justice Hudson in Physio GP, Inc.v. Natalie Naifeh (Sabine Pilot claim against bosses individually should be viable) EARLIER CASES WITH CONCURRING OR DISSENTING OPINIONS, OR BOTH See --> 2009 CASES WITH DISSENTING / CONCURRING OPINIONS See --> 2008 CASES WITH DISSENTING / CONCURRING OPINIONS See --> 2007 CASES WITH DISSENTING / CONCURRING OPINIONS |
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