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

Chief Justice Sherry Radack
Justice Tim Taft (resigned 2009)
Justice Jim Sharp (elected 2008)
Justice Sam Nuchia (former)
Justice Terry Jennings
Justice Evelyn Keyes
Justice Elsa Alcala  
Justice George C. Hanks, Jr.
Justice Laura Carter Higley
Justice Jane N. Bland
Justice Michael Massengale (2009)

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
2009 Opinions by Houston Appeals Court Justice
Evelyn Keyes

2009 Civil Cases With Opinions Authored by Justice Evelyn
Keyes  Also see -- >
 Recent Civil Case Opinions by Justice Keyes

Wilstein v. Dernick Resources, Inc.  (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes)
(
limitations and fraudulent concealment, fiduciary duty)
We conclude that Dernick breached its fiduciary duty to the Wilsteins by failing to disclose its sale of their interest in the
Bradshaw Field and that the Wilsteins were not put on constructive notice of the sale by the filing of the sale in the Kansas
public records. The trial court found that the Wilsteins discovered the sale of their interest in the Bradshaw Field following the
2002 audit of that field. This finding is supported by the evidence. Because the Wilsteins filed their Bradshaw Field claims in
2003, their claims were not barred by the four-year statute of limitations for breach of fiduciary duty and fraud.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes    
Before Justices Keyes, Alcala and Hanks   
01-07-00491-CV   David Wilstein, and Leonard Wilstein, Individually and as Trustee
v. Dernick Resources, Inc.,   
Appeal from 164th District Court of Harris County
Trial Court Judge:
Hon. Martha Hill Jamison

Gordon v. Allen (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Keyes)(errors on appeal)
“[A]n appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment.” Britton v.
Tex. Dep’t of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If an appellant does not assign
any error to an independent ground that, if meritorious, would fully support the complained-of ruling or judgment, we must
accept the validity of that unchallenged independent ground and affirm the ruling or judgment. Id. at 680–81 (“This rule is
based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil
case who does not challenge that error on appeal.”) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). Because
Gordon did not attack other independent grounds that, if meritorious, would fully support the trial court’s rulings, we accept
the validity of the unchallenged independent grounds.
AFFIRM TC JUDGMENT: Opinion by Justice Keyes    
Before Justices Keyes, Alcala and Hanks   
01-08-00435-CV Ronald X. Gordon v. Donald Allen, Marvin & Doris Bennett   
Appeal from 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia

Brown & Brown of Texas, Inc. v. Omni Metals, Inc. (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)
(Substituted opinion by Keyes) (
insurance coverage, certificates of insurance, DTPA)
MODIFY TRIAL COURT JUDGMENT AND AFFIRM TRIAL COURT JUDGMENT AS MODIFIED:
Opinion by Justice Keyes    
Before Justices Nuchia, Keyes and Higley   
01-05-01190-CV   Brown & Brown of Texas, Inc. f/k/a Poe & Brown of Texas, Inc. and Transcontinental
Insurance Company v. Omni Metals, Inc.   
Appeal from 61st District Court of Harris County
Trial Court Judge:
Hon. John Donovan
Dissenting Opinion by Justice Nuchia   

Gundogan v. Woodgrove Condo (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes)
(
appeals from small claims and JP court, failure to Timely Respond to Discovery Requests,
rebuttal of presumption of receipt of documents served pursuant to Rule 21a)
Woodgrove objected to each of the four pieces of evidence on the grounds that Gundogan failed to timely respond to
discovery requests. The trial court sustained each of Woodgrove’s four objections and excluded Gundogan’s four pieces of
evidence. Having held that the trial court erred in indulging the presumption that the request for production and notice of the
motion to compel Woodgrove properly sent were received, we further hold that the trial court erred in excluding Gundogan’s
four pieces of evidence on the ground of failure to timely respond to discovery requests.
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice Keyes    
Before Justices Jennings, Keyes and Higley   
01-07-00876-CV  Peter Kemal Gundogan v. Woodgrove Condominum   
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge:
Hon. R. Jack Cagle

Stewart & Stevenson, L.L.C. v. Galveston Party Boats, Inc. (Tex.App.- Houston [1st Dist.] Nov. 5,2009)
(Keyes) (
consolidated interlocutory appeal and petition for writ of mandamus challenging the trial court’s
order denying a motion to compel arbitration)(court of appeals dismisses the interlocutory appeal for lack of
jurisdiction and denies the petition for writ of mandamus) (no valid underlying agreement to arbitrate
dispute) (
FAA vs. TAA)
DISMISS APPEAL 9/5: Opinion by
Justice Keyes      
Before Justices Keyes, Hanks and Bland    
01-09-00030-CV  Stewart & Stevenson, L.L.C., and MTU Detroit Diesel, Inc. v. Galveston Party Boats, Inc.,
and Boat Service of Galveston    
Appeal from 405th District Court of Galveston County
Trial Court Judge:  Hon. Wayne J. Mallia   

Senko v. BP Products North America, Inc. (Tex.App.- Houston [1st Dist.] Nov. 4, 2009)(Keyes)
(
motion for a new trial, summary judgment on claims for negligence, negligence per se, and intentional
infliction of emotional distress affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Keyes, Alcala and Hanks)
01-08-01022-CV David Senko v. BP Products North America, Inc., and Don Parus  
Appeal from 212th District Court of Galveston County
Trial Court Judge:
Hon. Susan Elizabeth Criss

Requena v. Otis Elevator Company and Fisk Electric Co. (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)
(Keyes) (personal injury - freight elevator,
negligence, no breach of duty, JNOV affirmed)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes   
Before Justices Keyes, Alcala and Hanks    
01-08-00378-CV  Jose Hermilo Requena and Mary Sue Requena v. Otis Elevator Company and Fisk
Electric Company    Appeal from 215th District Court of Harris County
Trial Court Judge:
Hon. Levi J. Benton

O'Conor v. The Frost National Bank (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Keyes)
(
invasion of privacy claim fails, disclosure of social security number)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes   
Before Justices Keyes, Alcala and Hanks
01-08-00229-CV  Robert O'Conor, Jr. v. The Frost National Bank   
Appeal from 234th District Court of Harris County
Trial Court Judge: The
Honorable Reece Rondon

Vice v. Kasprzak (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)(Keyes)
(
interlocutory appeal, defamation suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-08-00168-CV  Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak
and Katherine D. Kasprzak   
Appeal from 125th District Court of Harris County
Trial Court
Judge: Hon. John Coselli

Choy v. Graziano Roofing of Texas, Inc. (Tex.App.- Houston [1st Dist.] Oct. 1, 2009)
(
construction law, Trust Fund Act violations alleged)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-07-00761-CV  Andrew Choy v. Graziano Roofing of Texas, Inc.   
Appeal from 270th District Court of Harris County
Trial Court
Judge: Hon. Brent Gamble

Nguyen v. Yovan (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Keyes)
(
real estate transaction, statute of frauds as it applies to sale of real estate, contract for deed)  
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-07-00660-CV  Anna Marie Nguyen v. Alex Yovan and Philip Yovan   
Appeal from 212th District Court of Galveston County
Trial Court
Judge: Hon. Susan Elizabeth Criss

Gallagher Healthcare Ins. Service, Inc. v. Vogelsang (Tex.App.- Houston [1st Dist.] Aug. 21, 2009)(Keyes)
(
enforceability of covenant-not-to-compete provision in employment agreement; noncompete held
enforceable)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes     
Before Justices Jennings, Keyes and Higley)
01-07-00478-CV   Gallagher Healthcare Insurance Services, Inc. v. Page M. Vogelsang, Michelle Friede,
Patti Philippone, Trisha Birdsong, and Lockton Companies, Inc.   
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle
Dissenting Opinion by Justice Jennings in Gallagher Healthcare Insurance Services, Inc. v. Vogelsang

Keyes writes sharply worded dissent on denial of en banc hearing in PI case stemming from
injuries caused by cow running loose, taking panel to task for misapplying the summary judgment
standard and for sanctioning resolution of disputed issues of material fact (ownership of the cow)
by summary judgment
Kennamer v. The Estate of Alwin Noblitt (Tex.App.- Houston [14th Dist.] 2009)(Higley)
(
animal law, liability of injuries caused by cow running loose, ownership of cow disputed, summary judgment,
no ownership, no duty, no liability,
collision with animal)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley  
Before Chief Justice Radack, Justices Nuchia and Higley
01-08-00134-CV John L. Kennamer, Individually and John L. Kennamer and Mora Kennamer d/b/a K-Bar
land and Cattle Company v. The Estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., Individually
and as Administrator of the Estate of John Alwin Noblitt, Deceased, and Jo Ann Jones, Individually and as
Heir of The Estate of John Alwin Noblitt, Deceased
Appeal from County Court at Law No 2 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Mark Holder
CASE WITH DISSENT: Dissenting Opinion by Justice Keyes (criticizing panel for subverting summary
judgment standard and permitting resolution of issues of disputed fact by summary judgment, crediting
evidence submitted by movant).  

In Re Bashaw & Co. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Keyes)
(
arbitration & securities business, direct benefits estoppel, arbitration mandamus granted)  
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by
Justice Keyes   
Before Justices Keyes, Hanks and Bland  
01-08-00803-CV        In re James E. Bashaw & Co.   
Appeal from 133rd District Court of Harris County
Trial Court Judges:
Lamar McCorkle | Jaclanel McFarland   

Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(
trustee removal, temporary injunction appeal fails, UDJA claim)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes    
Before Justices Keyes, Hanks and Bland  
01-08-00904-CV  Nancy D. Twyman v. William Earl Twyman  
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge:  Hon. Russell Austin

M.H. v. State of Texas iio M.H. (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(appeal from order authorizing the administration of psychoactive medications, mental health intervention)  
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes    
Before Justices Keyes, Hanks and Bland  
01-09-00205-CV  The State of Texas for the Best Interest and Protection of M. H.  Appeal from County
Court at Law of Cherokee County
Trial Court: County Court at Law
Trial Court Judge: Judge Craig A. Fletcher

Jimenez v. Dunham (Tex.App.- Houston [1st Dist.] Jul. 9, 2009)  (Keyes)  
(jury trial
breach of contract judgment affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes     
Before Justices Keyes, Hanks and Bland   
01-08-00117-CV Jose Raul Jimenez v. Teresa Dunham   
Appeal from 113th District Court of Harris County
Trial Court
Judge: Hon. Patricia Hancock

East Houston Estate Apartments, LLC v. City of Houston (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)
(Opinion by Keyes)(
city held immune, City of Mexia v. Tooke progeny, statutory waiver for breach of
contract suits against local governments not applicable)(trial court did not err in sustaining the City's plea to
the jurisdiction)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Evelyn Keyes     
Panel members: Justices Keyes, Hanks and Bland   
01-08-00966-CV East Houston Estate Apartments, L.L.C. v. The City of Houston   
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle  

Gundogan v. Woodgrove Condominium Assoc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes)
(
suit for damages against Condo Assoc. re: maintainance, appeal from justice court to county court, no
appeals bond posted, appeal dismissed for lack of jurisdiction in county court DWOJ)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley  
01-07-00876-CV  Peter Kemal Gundogan v. Woodgrove Condominum
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
Hon. R. Jack Cagle

Harris County, Texas v. Luna (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Keyes)
(TTCA: Denial of
plea to the jurisdiction affirmed, notice of claim issue under Texas Tort Claim Act)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes    
Before Justices Keyes, Hanks and Bland  
01-09-00039-CV Harris County, Texas v. Sonia Luna - Prudencio    
Appeal from 189th District Court of Harris County  
Trial Court Judge:
Hon. William R. Burke. Jr.  

Leax v. Leax (Tex.App.- Houston [1st Dist.] Jun. 11, 2009) (Keyes)
(
suit for annulment, marriage and divorce fraud, serial wife divorcee, pattern of domestic violence
allegations, concealment of numerous prior marriages,
fraud in the inducement)
AFFIRM TC JUDGMENT:   
Before Justices Keyes, Hanks and Bland. Opinion by
Justice Evelyn Keyes
01-08-00149-CV Elaine Leax v. Robert W. Leax
Appeal from 246th District Court of Harris County
Trial Court
Judge: Hon. Jim York  

Yazdchi v. Walker (Tex.App.- Houston [1st Dist.] May 7, 2009)(Keyes)
(
motion for continuance, incomplete clerk's record on appeal)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley  
01-05-00177-CV
Abbas Yazdchi, Habibollah Yazdchi, and Ahmad Yazdchi v. Ted L. Walker, Tammy Tran, and Pete Mai  
Appeal from
County Civil Court at Law No 4 of Harris County
Trial Court Judge:  Hon. Lloyd

B&W Supply, Inc. v. Beckman (Tex.App.- Houston [1st Dist.] Apr. 9, 2009)(Keyes)
(
JNOV, breach of contract, excuse defense, lost profit damages, DTPA counterclaim)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Keyes  
Before Justices Jennings, Keyes and Higley
01-07-00574-CV B & W Supply, Inc. and Weston Wyatt v. Lawrence and Diane Beckman
Appeal from 215th District Court of Harris County
Trial Court
Judge: Hon. Levi J. Benton  

Hernandez v. Hernandez (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Higley)
(
OAG suit, child support, nunc pro tunc judgment vacated)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Higley   
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00901-CV George Hernandez v. Maria Guadalupe Hernandez   
Appeal from 311th District Court of Harris County
Trial Court Judge: Hon.
Doug Warne  
Dissenting Opinion by Justice Keyes    

Hahn v. Love (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Keyes)
(
UFTA fraudulent transfer claim, bona fide purchaser defense, constructive trust)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes   
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00096-CV Allon R. Hahn, Individually and d/b/a Hahn's Gulf Service v. Bertrand Love   
Appeal from
157th District Court of Harris County

City of Richmond v. Rodriguez (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Keyes)
(
official immunity, city governmental entities, plea to the jurisdiction)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley
01-08-00471-CV City of Richmond v. Delia Garcia Rodriguez  
Appeal from 268th District Court of Fort Bend County

Okorafor v. Jeffreys (Tex.App.- Houston [1st Dist.] Mar. 26, 2009)(Keyes)
(
post-answer default judgment, legal malpractice suit)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes   
Before Justices Jennings, Keyes and Higley
01-07-00618-CV James O. Okorafor v. Frank Will Jeffreys   
Appeal from 190th District Court of Harris County
Trial Court Judge:
Jennifer Elrod

Hanley v. DNW of Houston, Inc. (Tex.App.- Houston [1st Dist.] Mar. 19, 2009 (Keyes) (contract claim)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Jennings, Keyes and Higley
01-07-00909-CV Ron Hanley v. DNW of Houston Inc.
Appeal from Co Civil Ct at Law No 2 of Harris County
Trial Court
Judge: Hon. Jacqueline Lucci Smith  


Also see --> 2010 Cases With Opinions Authored by Justice Evelyn Keyes
Also see --> 2008 Cases With Opinions Authored by Justice Evelyn Keyes
Also see --> 2007 Cases With Opinions Written by Justice Evelyn Keyes
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HOUSTON JUSTICES
1st and 14th Court of Appeals
Links to 2009 Opinions

Justice Alcala, Elsa
Justice Anderson, John
Justice Bland, Jane
Justice Brown, Jeff
Justice Boyce, William (Bill)  
Justice Christopher, Tracy (2010)
Justice Edelman, Richard (2008)
Justice Fowler, Wanda (2008)
Justice Frost, Kem Thompson
Justice Guzman, Eva
Justice Hanks, George C., Jr.
Chief Justice Hedges, Adele
Justice Higley, Laura Carter
Justice Hudson, Harvey J.
Justice Jennings, Terry
Justice Keyes, Evelyn
Justice Massengale, Michael
Justice Nuchia, Sam
Chief Justice Radack, Sherry
Justice Seymore, Charles
Justice Sharp, Jim
Justice Sullivan, Kent
Justice Taft,Timothy (Tim)
Justice Yates, Leslie Brock

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