Dissents and Concurrences in the Fourteenth Court of Appeals (Tex.App.- Houston 2006)

H. Heller & Co. v. Louisiana Pacific Corp. (Tex.App.- Houston [14th Dist.] Dec. 7, 2006, pet. denied 6/1/2007)
Hedges) (foreign judgment, enforcement, personal jurisdiction, validity of foreign judgment)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-06-00481-CV        H. Heller & Company, Inc. and Gulf Performance Polymers, Inc. v. Louisiana-Pacific
Corporation
Appeal from 270th District Court of Harris County (Hon. Brent Gamble)
Dissenting Opinion by Justice Brock Yates

Armelin v. State of Texas (Tex.App.- Houston [14th Dist.] Oct. 3, 2006)(Anderson)(criminal case)(stalking)
AFFIRMED: Opinion by Justice Anderson
(Before Justices Anderson, Edelman and Frost)
14-05-00680-CR Armelin, Wayne v. The State of Texas
Appeal from 232nd District Court of Harris County
Concurring opinion by Justice Frost in Armelin v. Texas

Slaughter v. State of Texas (Tex.App. - Houston [14th Dist.] Oct. 3, 2006)(Anderson)(criminal case)
AFFIRMED: Opinion by Justice Anderson
(Before Justices Anderson, Edelman and Frost)
14-05-00863-CR Herman Jason Slaughter v. The State of Texas
Appeal from 180th District Court of Harris County
Concurring opinion by Justice Frost in Slaughter v. Texas (online opinion not available)

Also see ---> 2006 Opinions from the Fourteenth Court of Appeals 2007 Opinions
Also see ---> Concurring and Dissenting Opinions from the First Court of Appeals

Justice Kem Frost writes separately in Workforce Commission appeal

Hull v. TWC (Tex.App.- Houston [14th Dist.] Dec. 21, 2006)(Justice John Anderson)
[payday law claim, election of remedies, judicial review of administrative determination by TWC, exhaustion of
remedies, untimely administrative request for rehearing, jurisdiction DWOJ by trial court]
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost
14-05-00785-CV Donald Wayne Hull v. Texas Workforce Commission
Appeal from County Civil Court at Law No 4 of Harris County (Hon. Roberta Anne Lloyd)
Concurring Opinion by Justice Frost

Justice Brock Yates dissents on personal jurisdiction issue in case involving foreign judgment

H. Heller & Co. v. Louisiana Pacific Corp. (Tex.App.- Houston [14th Dist.] Dec. 7, 2006)(Chief Justice Adele
Hedges)[foreign judgment, enforcement, personal jurisdiction, validity of foreign judgment]
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-06-00481-CV        H. Heller & Company, Inc. and Gulf Performance Polymers, Inc. v. Louisiana-Pacific
Corporation
Appeal from 270th District Court of Harris County
Dissenting Opinion by Justice Brock Yates
Because I disagree with the majority's conclusion that the facts of this case show appellants purposefully availed
themselves of the benefits and protections of Alabama law, I respectfully dissent

Justice Eva Guzman concurs in criminal appeal

Zarco v. State (Tex.App.- Houston [14th Dist.] Dec. 21, 2006)(Justice Wanda Fowler)(criminal case)
AFFIRMED: Opinion by Justice Fowler
Before Justices Fowler, Edelman and Guzman
14-04-01125-CR Zarco, Andrew v. The State of Texas
Appeal from 339th District Court of Harris County
Concurring Opinion by Justice Eva Guzman

Justice Frost dissents

Kao Holdings v. Young (Tex.App.- Houston [14th Dist.] Nov. 21, 2006, pet. granted)(Justice Richard Edelman)
[default judgment, capacity, unliquidated damages]
Update: See subsequent Texas Supreme Court Decision (Tex. 2008)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Justice Edelman, Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00398-CV        Kao Holdings, L.P. d/b/a Sebring Apartments and William Kao v. Annie Lee Young
Appeal from 151st District Court of Harris County
Dissenting Opinion by Justice Frost

Justice Frost Dissents on Motion for Rehearing in Pro-Se Appeal, Holding That Unrepresented
Litigants Have Procedural Rights Too

Nabelek v. District Attorney (Tex.App.- Houston [14th Dist.] Nov. 30, 2006)
(Dissenting opinion by Frost)(pro se suits, appeals)
DISSENTING: Justice Frost
Before Justices Anderson, Hudson and Frost
14-03-00965-CV Ivo Nabelek v. District Attorney of Harris County, Texas
Appeal from 125th District Court of Harris County
("This court should grant rehearing, reverse the trial court's order dismissing Nabelek's claims as frivolous under
section 14.003(a)(2) of the Texas Civil Practice and Remedies Code, and remand for further proceedings.")

Justing Hudson dissents

Auten v. McDonalds (Tex.App.- Houston [14th Dist.] Nov. 2, 2006)(Seymore)

REVERSED AND REMANDED: Justice Seymore
Before Justices Hudson, Fowler and Seymore
14-05-00393-CV Evelyn Auten and Eldon Auten v. McDonalds Corporation Et Al
Appeal from 56th District Court of Galveston County (no judge shown on docket)
D i ssenting Opinion by Justice Hudson (dissents on due diligence issue re: statute of limitations)

Justice Richard Edelman dissents

Harveston Securities v. Narnia Investments (Tex.App. - Houston [14th Dist.] Oct. 31, 2006)(Frost)
[restricted appeal, default judgment, defective service, sufficiency of service of process, strict compliance required
for default judgment, service on Secretary of State]
REVERSED AND REMANDED: Justice Edelman, Justice Frost
Before Justices Anderson, Edelman and Frost)
14-05-00206-CV        Harveston Securities Inc. v. Narnia Investments L.T.D.
Appeal from 270th District Court of Harris County (name of judge not shown on docket)
Dissenting Opinion by Justice Edelman

Justice Edelman Writes Separately in Consumer DTPA Suit Against Car Dealership

Huang v. McGill Toyota (Tex.App.-Houston [14th Dist.] Oct 19, 2006)(Seymore)(substitute opinion on rehearing)
[consumer law, auto purchase, lease, DTPA, damages]
AFFIRMED: Opinion by Justice Seymore
Before Justices Edelman, Seymore and Guzman
14-03-01287-CV Hong Huang, LaTonia Calamease, Isaak Golbraykh, Zhi Yuan Liu, Juan Ramon Mejia, Lie Kai
Pon, Yan Fen Xian, Guoyue Yu, Jing Yan Zhou, Chi-Chih Tsai, Jian-Feng Li, and Chiu K. Lee v. Don McGill
Toyota, Inc.--Appeal from 11th District Court of Harris County (Hon. Mark Davidson)
Concurring Opinion by Justice Richard Edelman

Justice Frost writes Separately in Tax Appeal Case

Hebisen v. Clear Creek I .S .D . (Tex.App.- Houston [14th Dist.] Oct. 10, 2006)(Justice Harvey Hudson)
[tax appeal, master, referring court]
AFFIRMED: Opinion by Justice Hudson
Before Justices Hudson, Frost and Seymore
14-04-00983-CV Ronnie Vee Hebisen and Dan Hennigan v. Clear Creek Independent School District, Harris
County, Harris County Education Department, Port of Houston of Harris County Authority, Harris County Flood
Control District, Harris County Hospital District and City of Nassau Bay
Appeal from 234th District Court of Harris County
Concurring Opinion by Justice Kem Frost

Recusal Fiasco - Judge Wood Strikes Back - Court of Appeals Panel Divided on Whether Judge Acted
Without Authority in Moving to Hold Litigant in Contempt

In Re Michael Easton (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Justice Harvey Hudson)
[writ of habeas corpus sought, contempt of court, ex parte communication with judge per email, multiple recusal
motions, did judge have authority to issue order with recusal motion pending?]
MOTION OR WRIT DENIED: Opinion by Justice Hudson
Before Justices Hudson, Frost and Seymore
14-06-00674-CV In Re: Michael Easton
Appeal from [Judge Wood]
Dissenting Opinion by Justice Charles Seymore
(“I withdraw my dissenting opinion of August 10, 2006 and issue this corrected opinion. Consistent with our original
and supplemental opinions in In re Whatley, 2006 WL 1490161 (Tex. App.-Houston [14th Dist.] 2006, orig.
proceeding), Judge Wood was required to recuse himself or request assignment of another judge in the case prior
to taking any “further action in the case.” See Tex. R. Civ. P. 18a(d). The order which is the subject of Judge
Wood’s show cause proceeding was entered on February 7, 2006, during the pendency of the September 9,
2005, motion to recuse. The majority has drawn a fine line by implicitly concluding that Judge Wood was not
taking “further action in the case” when he signed the February 7, 2006 order. I agree with the majority that
Judge Wood has the power, inherent in his office, to deal with persons who disobey lawful orders. However, upon
issuance of our original and supplemental opinions, the order sought to be enforced was rendered void.
Accordingly, I respectfully dissent.”)

Justice Edelman Delivers Separate Opinion in DWI Case

Mount v. State (Tex.App.- Houston [14th Dist.] Aug. 8, 2006)(majority opinion by Frost)(criminal case)
[criminal law, police procedure, probable cause, arrest for DWI in the course of other criminal investigation, stop]
AFFIRMED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00842-CR Mike Seymour Mount v. The State of Texas
Appeal from Co Crim Ct at Law No 11 of Harris County
Appellant Mike Seymour Mount appeals his conviction for the misdemeanor offense of driving while intoxicated
(“DWI”). In four issues, appellant asserts that the trial court erred in failing to strike an allegedly biased venire
member for cause, and in denying his motion to suppress. We affirm.
Concurring opinion by Justice Edelman

Panel Divided Over Whether Plaintiff Should Have Been Granted Reinstatement After Dismissal

Keough v. Cyrus (Tex.App.–Houston [14th Dist.] July 13, 2006)(majority opinion by Eva Guzman)(on motion for
rehearing) [dismissal for failure to appear, dismissed for want of prosecution (DWOP), denial of reinstatement
affirmed]
AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Edelman, Seymore and Guzman
14-04-00660-CV Ann Keough v. Cyrus USA Inc. D/B/A Ace Limousine Services and Hamid Reza Mirabi
Appeal from County Civil Court at Law No 4 of Harris County
Keough v. Cyrus (Tex.App.–Houston [14th Dist.] July 13, 2006)(dissenting opinion by Justice Edelman)(on motion
for rehearing)

Termination of Mother's Parental Rights Reversed - Retired Justice Mirabal
Dissents on Termination of Unknown Biological Father's Rights

In Re JAJ (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Justice Harvey Hudson)(op. on rehr’g)
[does corporal punishment constitute physical abuse supporting termination?]
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Hudson
Before Justices Brock Yates, Hudson and Mirabal
14-04-01031-CV In the Interest of J.A.J
Appeal from 314th District Court of Harris County (Hon. John Phillips)
Concurring/Dissenting Opinion by Justice Mirabal (opinion on rehearing)
[would reverse and remand; parental rights of unknown father, served by substitute service, should not have been
terminated]

Child Abuse Case Draws Dissent from Chief Justice

Smith v. State of Texas (Tex.App.- Houston [14th Dist.] June 29, 2006)(criminal child abuse case)(Chief Justice
Adele Hedges)
[child abuse / neglect resulting in death; trial court error in consideration of extraneous offenses]
AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Anderson)
14-05-00031-CR Calvin Joseph Smith v. The State of Texas
Appeal from 278th District Court of Grimes County
D issenting op inion by Justice Brock Yates
(“I respectfully dissent to the majority’s conclusion that the trial court erroneously considered extraneous offenses
in assessing appellant’s punishment.“)

Justice Harvey Hudson Dissents in Real Estate Case

Chapman v. Olbrich (Tex.App.-Houston [14th Dist.] June 29, 2006)(majority opinion by Frost)
[home sale, specific performance]
AFFIRMED: Opinion by Justice Kem Frost
Before Justices Hudson, Frost and Seymore)
14-05-00056-CV James and Patricia Chapman v. Doug and Eleanor Olbrich
Appeal from 157th District Court of Harris County
Chapman v. Olbrich (Tex.App.-Houston [14th Dist.] June 29, 2006)(dissenting opinion by Justice Hudson)

Justice Hudson takes DA to task for misrepresenting the record on appeal

Anh v. State of Texas (Tex.App–Houston [14th Dist.] June 8, 2006)(Justice Kem Frost)(criminal case)
REVERSED AND REMANDED: Majority Opinion by Justice Frost
Before Justices Anderson, Hudson and Frost (on remand from higher court; opinion on motion for rehearing).
14-00-00560-CR Dang, Tuan Anh v. The State of Texas
Appeal from 176th District Court of Harris County
(“The Texas Court of Criminal Appeals determined that appellant satisfied the legal standard for establishing error
and remanded the case to this court for a harm analysis. The legal standard for determining whether the trial
court abused its discretion in limiting appellant’s closing argument overlaps with the inquiry as to whether any such
error is harmful. Because the high court’s rejection of our previous analysis tacitly mandates the conclusion that
the error it found is harmful, we reverse the trial court’s judgment and remand to the trial court for a new trial.”)
Concurring Opinion by Justice Hudson
("The Texas Court of Criminal Appeals, in a plurality opinion, held this court erred in concluding that the trial court
did not abuse its discretion’s in limiting the length of closing argument. Dang v. State, 154 S.W.3d 616, 622 (Tex.
Crim. App. 2005). Accordingly, the Court of Criminal Appeals remanded the cause to this court to conduct a harm
analysis. On remand, we held the error presented here is constitutional error. Because we could not conclude
beyond a reasonable doubt that the error did not contribute to appellant’s conviction, we reversed the trial court’s
judgment. Tex. R. App. P. 44.2(a). However, the State of Texas contends on rehearing that appellant has
forfeited any claim of constitutional error by failing to previously characterize it as error of constitutional
magnitude. The State’s assertion is wholly contrary to the record.”)

Justice Frosts Disagrees With Panel's Dismissal of Appeal Upon Notice of a Nonparty

In re S.W.O. (Tex.App–Houston [14th Dist.] June 8, 2006)(majority opinion by John Anderson)
[Appeal dismissed based on hearsay statement by nonparty family member to the effect that appellant does not
wish to pursue appeal; requirement to comply with rule governing voluntary dismissal suspended]
DISMISSED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost
14-03-00059-CV In the Matter of S. W. O.
Appeal from 315th District Court of Harris County
In re S.W.O. (Tex.App–Houston [14th Dist.] June 8, 2006)(dissenting opinion by Justice Kem Frost)

Justice Fowler Dissents in Domestic Relations Case Without Explaining Why

Witte v. Witte (Tex.App–Houston [14th Dist.] June 8, 2006)(majority opinion by Charles Seymore)
DISMISSED: Opinion by Justice Seymore - Justice Fowler dissents without opinion
Before Justices Hudson, Fowler and Seymore
14-05-00768-CV Gerard Alan Witte v. Cynthia Grace Witte
Appeal from 246th District Court of Harris County (James D. Squier sitting for the 246th D istrict Court)

Justice Seymore Would Grant Mandamus Petition, But Majority Will Not

In re Klockner (Tex.App.- Houston [14th Dist.] June 1, 2006)
[mandamus denied, order denying motion to quash request for jury trial]
MOTION OR WRIT DENIED: Per Curiam Justice Seymore would grant the petition and dissents without opinion

Justice Frost Dissents in Asbestos Liability Case on Constitutional Grounds; Criticizes Majority for
Using Improper Analysis

Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4, 2006)(majority opinion by
Fowler)
[asbestos claim, constitutional challenge as retroactive law denied]
AFFIRMED: Plurality Opinion by Justice Fowler
Before Chief Justice Hedges, Justices Fowler and Frost
14-04-00658-CV Barbara Robinson, Individually and as Representative of the Estate of John Robinson,
Deceased v. Crown Cork & Seal Company, Inc.
Appeal from 55th District Court of Harris County (Hon. Jeff Brown)
Robinson v. Crown Cork & Seal Company, Inc. (Tex.App.-Houston [14th Dist.] May 4, 2006)(dissent by Frost)
Before Chief Justice Hedges, Justices Fowler and Frost
14-04-00658-CV Barbara Robinson, Individually and as Representative of the Estate of John Robinson,
Deceased v. Crown Cork & Seal Company, Inc.
Appeal from 55th District Court of Harris County (Judge Jeff Brown)
(“In deciding whether the legislation at issue violates the prohibition against retroactive laws in the Texas Bill of
Rights, the court concludes that if the Texas Legislature reasonably exercises its police power to enact a statute,
then that statute does not violate the Texas Constitution, even though the statute is retroactive and destroys the
vested rights of some individuals. The people of the State of Texas, in emphatic and compelling language set
forth in section 29 of the Texas Bill of Rights, have expressly withheld from the Legislature the authority to enact
retroactive laws in violation of section 16 of the Texas Bill of Rights. Because the Legislature has no police power
to enact retroactive laws in violation of section 16, this court should not use a police-power analysis to determine
whether the statute is unconstitutionally retroactive. Furthermore, the weight of precedent from the Texas
Supreme Court and this court requires the use of the vested-rights analysis. Under this analysis, the statute in
question destroys the vested rights of the appellant in this case and therefore violates section 16 of the Texas Bill
of Rights, as applied. Because the court, using a police-power analysis, reaches the opposite conclusion, I
respectfully dissent.”)

Visiting Justice Parts Ways with Justice Frost and Delivers Dissenting Opinion

Dardas v. Fleming (Tex.App.-Houston [14th Dist.] April 27, 2006)(majority opinion by Justice Kem Frost)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Kem Frost
Before Judge Draughn, Justices Frost and Guzman
14-03-00538-CV Thomas A. Dardas, Individually and d/b/a Dardas & Associates and Bill Ogletree, P.C., a/k/a
Ogletree Law Firm v. Fleming, Hovenkamp & Grayson, P.C., Fleming Law Firm, PLLC, and Fleming & Associates,
L.L.P--Appeal from 61st District Court of Harris County
Dardas v. Fleming (Tex.App.-Houston [14th Dist.] April 27, 2006)(dissenting opinion by Draughn)
Appeal from 61st District Court of Harris County
Dissenting Opinion by Judge Draughn
Before Judge Draughn, Justices Frost and Guzman

Justice Edelman Writes Separately in Insurance Coverage Dispute

Lennar Corp v. Great American Ins. Co. (Tex.App.-Houston April 11, 2006)(dissent by Justice Richard Edelman)
Concurring/Dissenting: Opinion by Justice Richard Edelman
[insurance coverage dispute, exclusion, construction of accident, occurrence, construction defect]
Before Justices Fowler, Edelman and Seymore
14-02-00860-CV Lennar Corporation, Lennar Homes of Texas Land and Construction, Limited, and Lennar
Homes of Texas Sales and Marketing, Limited, D/B/A Village Builders v. Great American Insurance Company,
American Dynasty Surplus Lines Insurance Company, Markel American Insurance Company Gerling America
Insurance Company, RLI Insurance Company, Insurance Company of The State of Pennsylvania and Westchester
Fire Ins Company
Appeal from 270th District Court of Harris County

Lennar Corp. v. Great American Ins. Co. (Tex.App.-Houston [14th Dist] March 30, 2006)
(sep. op. by Edelman)(Concurrence / dissent by Justice Richard Edelman on motion for rehearing)
CONCURRING / DISSENTING: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Seymore
14-02-00860-CV Lennar Corporation, Lennar Homes of Texas Land and Construction, Limited, and Lennar
Homes of Texas Sales and Marketing, Limited, D/B/A Village Builders v. Great American Insurance Company,
American Dynasty Surplus Lines Insurance Company, Markel American Insurance Company Gerling America
Insurance Company, RLI Insurance Company, Insurance Company of The State of Pennsylvania and Westchester
Fire Ins Company
Appeal from 270th District Court of Harris County

Justice Leslie Brock Yates Dissents in perntal rights termination suit

In the Interest of HRM (Tex.App.- Houston [14th Dist.] Feb. 2006)(Seymore)
(termination of parental rights reversed)
REVERSED AND REMANDED: Opinion by Justice Seymore
(Before Justices Brock Yates, Hudson and Seymore)
14-05-00281-CV In the Interest of H.R.M.
Appeal from 300th District Court of Brazoria County
Dissenting opinion by Justice Brock Yates in In the Interest of H.R.M.

Rare Occurrence on Appeal: Panel Splits Three Ways in Ballot Access Mandamus Case

In Re Glory Hopkins (Tex.App.- Houston [14th Dist.] Jan. 18, 2007)(Edelman)
MOTION OR WRIT DENIED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Guzman
14-06-00035-CV        In Re Glory Hopkins--Appeal from of County
Concurring Opinion by Justice Guzman
Dissenting Opinion by Justice Fowler