Opinions by Other Justices
of the FIrst Court of Appeals,  
sitting in Houston, Texas

Chief Justice Sherry Radack
Justice Tim Taft
Justice Sam Nuchia
Justice Terry Jennings
Justice Evelyn Keyes
Justice Elsa Alcala  
Justice George C. Hanks, Jr.
Justice Laura Carter Higley
Justice Jane N. Bland

Like several of her sister jurists, Justice Evelyn Keyes was appointed by
Governor Rick Perry to fill a vacant seat. In the general election the voters
approved the choice for the remainder of her predecessor’s term on the First
Court of Appeals. Justice Keyes was re-elected in 2004. Her current term ends
in 2010. With six concurrences and six dissents, Justice Keyes delivered the
second-highest number of separate opinions on the court (28.6%) in Fiscal Year
2006. Her most notable 2006 opinion involved the novel question of whether an
agreement by former spouses about what to do with frozen embryos in the event
of divorce was enforceable. Justice Keyes’ decision came down on the side of
the husband, who opposed the former wife’s plans to use the embryos to have a
child over his opposition, but skirted the constitutional reproductive right issues
raised by the husband, resolving the appeal instead  as a matter of contract law.
Roman v. Roman 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006)
(frozen embryo agreement between spouses enforceable).
The Texas Supreme Court declined to weigh in on the matter.
See Tex. Sup. Ct Docket No. 06-0554.
Find more judge and court information at the Houston-Opinions Home Page
2007 Opinions by Houston Appeals Court Justice
Evelyn Keyes

2007 Cases With Opinions Authored by Justice Evelyn Keyes
Also see -> 2008 | 2009 Opinions by Justice Keyes in Civil Appeals

Ex Parte Waller ISD (Tex.App.- Houston [1st Dist] Dec. 21, 2007)(Keyes)
(ISD cases,
tax law, bond validation suit, challenge to school bonds by taxpayer)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Jennings and Keyes
01-07-00900-CV Ex Parte Waller Independent School District
Appeal from 155th District Court of Austin County (Hon. Dan R. Beck)

Amtech Elevator Serv. Co. v. SDFB 1998-P1 Buffalo Speedway Office LP (Tex.App.- Houston [1st Dist.]
Dec. 13, 2007)(Keyes) (
insurance, indemnity)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Jennings and Keyes
01-07-00401-CV Amtech Elevator Services Company v. CSFB 1998-P1 Buffalo Speedway Office Ltd.
Partnership, LNR Partners, Inc. and MRIO, Inc., Moody Rambin Interests Inc.
Appeal from 270th District Court of Harris County (
Hon. Brent Gamble)

Clark v. Lowe's Home Centers, Inc. (Tex.App.- Houston [1st dist.] Nov. 15, 2007)(Keyes)
(PI,
store premises liability)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Jennings and Keyes
01-06-00689-CV Billy Clark v. Lowe's Home Centers, Inc., d/b/a Lowe's of Tomball, TX, Store #1052 and
Union Corrugating Company
Appeal from 234th District Court of Harris County (
Hon. Reece Rondon)

Barrow v. Pickett (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Keyes)(real estate law, easement, rural,
electrical cattle fence,
attorney's fees)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Keyes
Before Justices Nuchia, Jennings and Keyes
01-06-00664-CV Nick Barrow v. Carl N. Pickett
Appeal from 344th District Court of Chambers County (Carroll E. Wilborn, Jr.)

DeClaire v. G&B McIntosh Family LP (Tex.App. - Houston [1st Dist.] Nov. 8, 2007)(Keyes)(biz law, breach of
contract, promissory note, parol evidence rule)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00423-CV Christopher G. DeClaire ("DeClaire") v. G&B McIntosh Family Limited Partnership
Appeal from 269th District Court of Harris County (
Honorable John T. Wooldridge)

Cox v. Southern Garrett, LLC (Tex.App.- Houston [1st Dist.] Oct. 11, 2007)(Keyes)
(business organization law, membership, breach of fiduciary duty, corporate veil)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-05-01091-CV George Thomas Cox v. Southern Garrett, L.L.C., Southern Chemical Corp., Excelerate
Trading, L.L.C., Roger Moyers, Stephen Korkmas, Widebrand Spin, Fred Wood, and Jan T. Spin
Appeal from 280th District Court of Harris County (
Hon. Tony Lindsay)

Uche, M.D. v. Allison (Tex.App.- Houston [1st Dist.] Oct. 11, 2007)(Keyes)(HCLC, special appearance)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00546-CV Chris Uche, M.D. v. Melody and Marvin Allison Indiv. a/n/f for Dorothy Mueller, et
al--Appeal from 56th District Court of Galveston County (Judge Lonnie Cox)

Control Solutions, Inc. v. Gharda USA, Inc. (Tex.App.- Houston [1st Dist.] Sep. 13, 2007)
(special appearance,
in personam jurisdiction, grant of special appearance reversed)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00802-CV Control Solutions, Inc. and United Phosphorus, Inc. v. Gharda USA, Inc., Gharda
Chemicals Ltd., Benko Products, Inc., and Choctaw Sales, Inc.

HISD v. Old Farms Owners Ass'n (Tex.App.- Houston [1st Dist.] Jul. 26, 2007)(Higley)
(
tax suit, penalties and interest, ISD law suits)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Higley (Before Chief Justice Radack, Justices Keyes and Higley)
01-04-00538-CV Houston Independent School District, et al., v. Old Farms Owners Association, Inc., et
al.,--Appeal from 270th District Court of Harris County (
Hon. Brent Gamble)
Dissenting Opinion by Justice Keyes in HISD v. Old Farms Owners Association (Tex.App.- Houston [1st Dist.]
Jul. 26, 2007)

Y2K Enterprises, Inc. v. Carriere (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Keyes)(DTPA, fees)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Chief Justice Radack, Justices Keyes and Higley)
01-06-00476-CV Y2K Enterprises, Inc., d/b/a Auto 5, and Muhommed Khalil v. David L. Carriere, II
Appeal from County Court at Law No 3 of Fort Bend Ccounty (Trial Court Judge: Hon. Susan G. Lowery)

Little v. Needham (Tex.App.- Houston [1st Dist] Jun. 28, 2007)(Keyes)
(horse riding risk, accident liability,
animal law)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Chief Justice Radack, Justices Keyes and Higley)
01-06-01108-CV Stuart Little v. Susan Needham, Individually and doing business as Needham Stables, and
Alan Needham, Individually and doing business as Sam Houston Feed a/k/a Sam Houston Feed & Supply II
Appeal from 113th District Court of Harris County (
Trial court judge: Hon. Patricia Hancock)

Scott v. Farrar (Tex.App.- Houston [1st Dist.] May 31, 2007)(Keyes)(venue)
(pro se prisoner IFP suit, venue)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00395-CV
Michael Scott v. Joseph Farrar, Darryl Glenn and S. Whatley
Appeal from 400th District Court of Ft. Bend County (Hon Clifford J. Vacek)

Hitchcock v. Board of Trustees, Cypress I.S.D. (Tex.App.- Houston [1st Dist.] May 24, 2007)(Keyes)
(education law, employment case law, school law, teachers, grievance)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00376-CV        Judy Hitchcock v. Board of Trustees, Cypress-Fairbanks Independent School
District--Appeal from 280th District Court of Harris County (
Judge Hon. Tony Lindsay)

Ajudani v. Walker (Tex.App.- Houston [1st Dist.] May 24, 2007)(Keyes)(ad litem fees)
(probate law, attorney ad litem fee appeal)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00089-CV        Shirin Ajudani and Rosemary Shookoufandeh, Lana Dieringer v. Jimmy Walker
Appeal from Probate Court No 1 of Harris County

He v. Jiang (Tex.App. - Houston [1st Dist.] May 3, 2007)(Keyes)
(breach of contract, statute of frauds)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00255-CV Shaoguang He v. Wen Hong Jiang
Appeal from 190th District Court of Harris County (
Judge Jennifer Elrod)

Jordan v. Sava (Tex.App.- Houston [1st Dist] Apr. 12, 2007)(Keyes)(substituted opinion)
[
PI, traffic accident, wreck, jury selection, disqualification, challenge for cause, peremptory strike, jury
instruction, sudden, unexpected emergency, negligence, proximate cause, sufficiency of the evidence]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Chief Justice Radack, Justices Keyes and Alcala)
01-03-00554-CV        Maethenia Jordan v. Sava, Inc. & John D. Moore
Appeal from 152nd District Court of Harris County
Chief Justice
Radack delivered a concurring opinion in Jordan v. Sava  (Tex.App.- Houston [1st Dist] Apr.
12, 2007

Finding Indemnity provision in subcontractor agreement ambiguous and unenforceable, Justice
Keyes reverses summary judgment, and remands
Cabo Construction v. R.S. Construction  (Tex.App. - Houston [1st Dist.] Apr. 12, 2007)(Keyes)
[
slip and fall, premises liability, negligence, indemnity, construction law, general contractor-subcontractor
agreement, indemnification, ambiguity in indemnity provision, conspicuousness requirement]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Keyes (Before Justices Nuchia, Keyes and Higley)
01-05-00487-CV Cabo Construction, Inc. v. R S Construction
Appeal from 157th District Court of Harris County

Domingo Navarro v. The State of Texas (Tex.App.- Houston [1st. Dist.] Mar. 22, 2007)(Justice Keyes)

Bob Lewis Smith v. The State of Texas (Tex.App.- Houston [1st. Dist.] Mar. 22, 2007)(Justice Keyes)

Andre Alexander Price v. The State of Texas (Tex.App.- Houston [1st. Dist.] Mar. 22, 2007)(Keyes)

Spir-Star AG v. Kimich (Tex.App.- Houston [1st Dist.] Feb. 8, 2007)(Justice Evelyn Keyes)(pet. filed and
briefing on the merits requested -Tex. No.
07-0340)

Metro Casualty Ins. Co. v. Foster (Tex.App.- Houston [1st Dist.] Feb. 1, 2007)(Justice Keyes)

Metro Casualty Ins. Co. v. Foster (Tex.App.- Houston [1st Dist.] Feb. 1, 2007)(Keyes)
(
probate law, finality of order, minor settlement)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Higley)
01-05-01076-CV        Metropolitan Casualty Insurance Company v. Horace Foster, Permanent Guardian of
the Estate--Appeal from Probate Court No 1 of Harris County
Trial Court Judge:  Hon. Russell Austin
2007 Separate Opinions Written by Justice Keyes

Justice Keys writes separately in property tax case
Excel Auto and Truck Leasing LLP v. Alief ISD (Tex. Aug. 31, 2007)(Hanks)(tax appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Keyes and Hanks
01-04-01185-CV Excel Auto and Truck Leasing, L.L.P. v. Alief Independent School District et al.
Appeal from 11th District Court of Harris County (The Honorable Mark Davidson)
Separate opinion by Keyes
OPINION CONCURRING IN PART WITH, AND DISSENTING IN PART TO, THIS COURT'S JUDGMENT:
Concurring Opinion by Justice Keyes
Before Justice Hanks
01-04-01185-CV Excel Auto and Truck Leasing, L.L.P. v. Alief Independent School District et al.
Appeal from 11th District Court of Harris County (
Judge Mark Davidson)

Justice Keys dissents on disposition of motion for en banc rehearing
S.E.A. Leasing, Inc. v. Jeff Steele and Melissa Steele (Tex.App.- Houston [1st Dist.] Aug 17,2007)(Dissent by Keyes)
OPINION DISSENTING TO THIS COURT'S JUDGMENT: Dissenting Opinion by Justice Keyes
Before Justices Taft, Alcala and Hanks
01-05-00189-CV S.E.A. Leasing, Inc. v. Jeff Steele and Melissa Steele
Appeal from 189th District Court of Harris County (Hon. William R. Burke, Jr.)
I respectfully dissent from denial of en banc reconsideration. The panel opinion in this case adds new and unprecedented
hurdles to appellants' preservation of legal sufficiency points of error. In so doing, it contravenes the objective of Texas Rule
of Civil Procedure 1, namely "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under
established principles of substantive law," to which end the rules "shall be given a liberal construction." Tex. R. Civ. P. 1. En
banc reconsideration is, in my view, justified to maintain the uniformity of this Court's interpretation of the rules of civil and
appellate procedure with established precedent on the important issue of preservation of legal error and its conformity with
the mandate of Rule 1. See Tex. R. App. P. 41.2(c).

Majority issues new opinion is sexually-oriented businesses case; and so does Justice Keyes,
separately
Webworld Marketing Group, L.L.C. v. Tommie Thomas, No. 01-04-00749-CV (Tex.App.- Houston [1st Dist.] Aug. 2,
2007)(Opinion by Justice Hanks)(SOB regulation)
Before Justices Nuchia, Keyes and Hanks
Appeal from 215th District Court of Harris County
Trial court judge: Hon. Levy Benton
01-04-00749-CV        Webworld Marketing Group, L.L.C. v. Tommie Thomas
Appeal from 215th District Court of Harris County
Keyes' separate opinion in Webworld Marketing Group, LLC v. Thomas (Tex.App.- Houston [1st Dist.] Aug. 2, 2007)(sep. op.
by Keyes)
OPINION CONCURRING IN PART WITH, AND DISSENTING IN PART TO, THIS COURT'S JUDGMENT: Concurring and
Dissenting Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-00749-CV        Webworld Marketing Group, L.L.C. v. Tommie Thomas
Appeal from 215th District Court of Harris County (
Judge Levy Benton)

Justice Keyes writes separately in appeal from jury verdict in defamation case
El-Khoury v. Kheir (Tex.App.- Houston [1st Dist.] Jun 14, 2007)(Radack)(defamation)(Radack)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00088-CV        John El-Khoury v. Benjamine Kheir
Appeal from 334th District Court of Harris County (
Hon Sharon McCally)
Concurring and Dissenting Opinion by Justice Keyes

Justice Keys Dissents on Enforcement of 17-year Old Judgment, Majority Vacates Turnover Orde
Holt v. Decyco Corp. (Tex.App.- Houston [1st Dist.] Apr. 27, 2007)(Taft)
[enforcement of old judgment, dormant judgment, capacity, turnover relief]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Taft
Before Justices Taft, Keyes and Hanks
01-05-01194-CV        William Gregory Holt v. Cedyco Corporation
Appeal from Co Civil Ct at Law No 1 of Harris County (
Judge Jack Cagle)
Justice
Keys dissented in Holt v. Cedyco Corp.    

Justice Keys Dissents in Case Against Department of Criminal Justice
TDCJ v. Thomas (Tex.App.- Houston [1st Dist.] Apr. 19, 2007, pet. filed, briefing requested)(Nuchia)
(plea to the jurisdiction, suit against government entity)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Hanks
01-04-01084-CV Texas Department of Criminal Justice and Glenda Pierson v. Linda Thomas as Personal Representative for
the Estate of Damon Hollimon, Deceased, and Ashley Dominique Hollimon
Appeal from 278th District Court of Walker County
Justice
Keyes dissented in TDCJ v. Thomas

Justice Keyes Writes Dissenting Opinion in Health Care Liability Case
Justice Keyes dissented in Intracare Hospital North v. Campbell (Tex.App.- Houston [1st Dist.] Mar. 29,
2007)(Dissent by Keyes)
Intracare Hospital North v. Campbell (Tex.App.- Houston [1st Dist.] Mar. 29, 2007)(Taft)
[
health care liability claim, HCLC, expert report filing requirement, tolling, ANF suit, suit by guardian]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Taft
(Before Justices Taft, Keyes and Hanks)
01-06-00356-CV Intracare Hospital North and Terry Bauske v. Cindy Campbell, Individually and a/n/f of
Frank Brown--Appeal from 334th District Court of Harris County (
Hon Sharon McCally)

Justice Keys Dissents in Case Involving SOB Permit Application
Webworld Marketing Group, L.L.C. v. Tommie Thomas (Tex.App.- Houston [1st. Dist.] Mar. 22,
2007)(Hanks) [SOB application, permit, denial]
Dissent by Keyes in Webworld Marketing v. Thomas

Justice Keys Dissents in Yellow Cab Trade Dress Infringement Case; Criticizes Majority for
Creating a Conflict with Federal Courts in Interpreting the federal Lanham Act
Hassan v. Greater Houston Transporation Co. d/b/a Yellow Cab (Tex.App.- Houston [1st Dist.] Feb. 16,
2007)(Dissent by Keyes)
("I withdraw my previous dissenting opinion dated February 15, 2007 and issue the following dissenting opinion in its stead. I
respectfully dissent. This is an important trade dress infringement case of first impression. It was brought by appellee,
Greater Houston Transportation Company d/b/a Yellow Cab ("Yellow Cab") against appellants, Yahya Hassan, individually
and d/b/a Safe Cab Co. a/k/a Safe Cab Company, and Kemal Mohammed, individually and d/b/a Safe Cab Co. a/k/a Safe Cab
Company ("Safe Cab"), under 15 U.S.C. § 1125(a) (2000), commonly known as the Lanham Act (the "Act"), and Texas
common law. Appellant assigns points of error under both. The majority incorrectly concludes that appellant failed to
preserve its challenge to the legal sufficiency of the evidence, proceeds directly to analyze the jury charge, summarily rejects
a legally correct jury charge as erroneous without analyzing trade dress law, conducts a cursory and impressionistic harm
analysis, concludes that the error was harmful, and remands the case for a new trial under an incorrect charge. The opinion
invites the waste of judicial resources, confusion in the jury, and error in the next judgment and in future cases. It also creates
a conflict between interpretations of the Lanham Act by Texas state courts and federal courts with concurrent jurisdiction over
the same federal claims. I would affirm.")
Hassan v. Greater Houston Transportation Co. (Tex.App.- Houston [1st Dist.] Feb. 15, 2007)(Nuchia)(majority opinion)

Flottec, Inc. v. Gulf Industrial Products, Inc. (Tex.App.- Houston [1st Dist.] Feb. 8, 2007)(Keyes)
(denial of special appearance, interlocutory appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Taft, Keyes and Hanks)
01-05-00967-CV        Frank Cappuccitti, Flottec, Inc. v. Gulf Industrial Products, Inc.
Appeal from 344th District Court
Trial Court Judge: Hon. Carroll E. Wilborn, Jr.

Spir-Star AG v. Kimich (Tex.App.- Houston [1st Dist.] Feb. 8, 2007)(Keyes) (special appearance)
(pet. filed and briefing on the merits requested -Tex. No.
07-0340)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Higley)
01-06-00129-CV        Spir-Star AG v. Louis Kimich
Appeal from 125th District Court of Harris County
Trial Court
Judge:  Hon. John Coselli

Metro Casualty Ins. Co. v. Foster (Tex.App.- Houston [1st Dist.] Feb. 1, 2007)(Keyes)
(
probate law, finality of order, minor settlement)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
(Before Justices Nuchia, Keyes and Higley)
01-05-01076-CV        Metropolitan Casualty Insurance Company v. Horace Foster, Permanent Guardian of
the Estate--Appeal from Probate Court No 1 of Harris County
Trial Court Judge:  Hon. Russell Austin

Justice Keyes Writes Separately in Important Sovereign Immunity Case  
Justice
Evelyn Keys writes separate opinion in TSU v. State Street Bank and Trust, No. 01-05-00758-CV
(Tex.App.- Houston [1st Dist.] Jan. 11, 2007)(separate opinion by Keyes)(substitute opinion)
TSU v. State Street Bank and Trust and CMS Viron Corp. (Tex.App.- Houston [1st Dist.] Jan. 11,
2007)(majority opinion by Hanks)(substitute opinion) (government immunity waived by egregious conduct)