Katherine Mika v. Express Jet Airlines Inc ( 2006 )

NO. 07-05-0146-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 4, 2006 ______________________________

KATHERINE MIKA,

Appellant

v.

EXPRESS JET AIRLINES, INC.,

Appellee

_________________________________

FROM THE 280^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 2003-36,486; HON. TONY LINDSAY, PRESIDING _______________________________

Memorandum Opinion ______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Katherine Mika (Mika) appeals from a final judgment denying her recovery against Express Jet Airlines, Inc. (Express). Her sole issue concerns the trial court's decision to grant Express a partial summary judgment on the issue of negligent hiring, training, and supervision. We overrule the issue and affirm the judgment.

Express raised two grounds, via its amended motion for summary judgment, attacking Mika's claim of negligent hiring, training, and supervision. One dealt with the federal preemption doctrine while the other dealt with the absence of any evidence illustrating that Express negligently hired, trained, or supervised the employee in question. ⁽¹⁾ Moreover, in granting the motion, the trial court did not specify upon which ground it relied. Consequently, Mika had the burden on appeal to illustrate why none of the grounds asserted by Express entitled the litigant to summary judgment. Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.-Houston [14^th Dist.] 1998, no pet.). This she failed to do for no issue was raised on appeal encompassing the no-evidence ground.

Mika having failed to attack both grounds asserted in support of summary judgment upon her claim of negligent hiring, training, and supervision, we overrule her issue and affirm the judgment. See id. (holding that the appellate court must affirm the summary judgment when the appellant fails to negate each ground upon which the judgment may have been granted).

Brian Quinn

Chief Justice

1. We note and reject Mika's contention that Express failed to raise a no-evidence ground in its motion for summary judgment. Appearing in that motion is the following passage: "Because of this, the Plaintiff's claims are preempted by Federal Law. In addition, there is no evidence in this case of essential elements of Plaintiff's claims and therefore, your Defendant is entitled to a summary judgment. . . ." (Emphasis added). Elsewhere in the same motion appears the statement that: "Plaintiff's negligent hiring claim is likewise, [sic] governed by Defendant's No Evidence Motion for Summary Judgment." And, after describing the "necessary elements of such a cause," Express stated that evidence satisfying those elements "is not present in this case." From those elements, one cannot but conclude that Express included a no-evidence ground in its motion.

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NO. 07-10-0086-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 13, 2010

TIMOTHY S. BARBIAN,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2010-426,409; HONORABLE CECIL G. PURYEAR, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Timothy S. Barbian challenges his conviction for aggravated assault with a deadly weapon by contending the evidence is not factually sufficient to sustain it.  According to appellant, the victim had insufficient credibility to be believed. Thus, the verdict was improper.  We affirm the judgment.

            Appellant’s notice of appeal and brief were filed before the Court of Criminal Appeals issued its decision in Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. Lexis 1240 (Tex. Crim. App. October 6, 2010). There, it did away with factual sufficency review and instead simply required that we consider the evidence only to determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt.  Id. at *57.  Appellant was afforded the opportunity to rebrief in light of Brooks and, upon doing so, argues that we should refuse to apply Brooks at all, that the decision has no precedential value because it is unpublished, and that we should refuse to apply it retroactively. 

            Initially, we note that the opinion has been designated for publication.  Id. at *59.  Moreover, the Court noted that there is no meaningful distinction between a factual sufficiency and legal sufficiency review, and thus a separate factual sufficiency challenge should not be addressed.  Id. at *57-58.  Because this opinion does serve as precedent and since appellant concedes that he has not raised a legal sufficiency challenge, there is nothing for us to consider. 

            However, we note parenthetically that the credibility issues that appellant raises with respect to the victim were placed before the jury.  We cannot substitute our opinion of her believability for that of the jury; nor could we do so before Brooks.  See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (holding that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may choose to believe all, some, or none of the evidence presented).  Moreover, there was evidence that corroborated portions of the victim’s testimony, including some found in appellant’s bedroom and vehicle.  So, even if Brooks was inapplicable, the evidence supporting his conviction would nonetheless be factually sufficient.

Accordingly, we affirm the judgment.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Do not publish.