James Johnson, Individually and on behalf of others similarly situated v. MHSB Enterprises, L.L.C. d/b/a America's Service Station and MHSB, Inc. d/b/a America's Service Station--Appeal from 53rd Dist

State: Texas

Court: Texas Northern District Court

Docket No: 03-04-00153-CV

Case Date: 10/07/2004

Plaintiff: JOHN OCIE ROBERTS

Defendant: THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Cameron County

Preview:J.C. Penney Life Ins. Co. v. Tracinda Heinrich and
Christy Byrom--Appeal from 45th Judicial District
Court of Bexar County
99-00356 JC Penney Life Insurance Company v Heinrich concurring opinion.wpd CONCURRING OPINION
Appeal No. 04-99-00356-CV
J.C. PENNEY LIFE INSURANCE COMPANY,
Appellant,
v.
Tracinda HEINRICH,
Appellee.
45th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CI-09563
Honorable Michael Peden, Judge Presiding
Opinion by: Sarah B. Duncan, Justice
Concurring opinion by: Phil Hardberger, Chief Justice
Sitting: Phil Hardberger, Chief Justice
Catherine Stone, Justice
Sarah B. Duncan, Justice
Delivered and Filed: September 6, 2000
I concur with all of the majority's opinion except the modification of the trial court's judgment to condition the award
of appellate attorneys' fees to Heinrich being successful on appeal. The trial court did err in failing to condition the
award of appellate attorney's fees. But this appeal is decided with this opinion. Heinrich was successful; J.C. Penney
was unsuccessful. The error is harmless. See Texas Farmers Ins. Co. v. Cameron, No. 05-99-00222-CV, 2000 WL
225887, at *14 (Tex. App.--Dallas Feb. 29, 2000, no pet. h.); Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 236
(Tex. App.--Houston [14th Dist.] 1996, writ denied). Accordingly, I would find no reversible error in the trial court's
failure to condition the award of appellate attorney's fees on Heinrich's success in this court. See Cameron, 2000 WL
225887, at *14; Humble Nat'l Bank, 933 S.W.2d at 236.
Heinrich ultimately will receive the award of $10,000 in attorney's fees based on the appeal to this court as the
majority's opinion and judgment are written, provided that the majority's opinion and judgment are not reversed on
further appeal. Therefore, I concur in the majority's opinion as it relates to those fees. I join the majority opinion in
modifying the trial court's judgment as it relates to the unconditional award of attorney's fees on appeal to the Texas
Supreme Court.
PHIL HARDBERGER,
CHIEF JUSTICE
PUBLISH
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