Opinions by Justice Elsa Alcala (Tex.App.- Houston [1st Dist.] 2006)

Also see ---> Dissents and Concurrences in the First Court of Appeals

Not Feline-Friendly - First Court's Elsa Alcala, Writing for All-female Panel, Opens New Year With
Dismissal of Constitutional Challenge to City Kennel Ordinance Brought By Woman Criminally
Prosecuted for Operating a Cat Shelter

City of La Marque v. Braskey d/b/a as The Momma Cat (Tex.App.-- Houston [1st Dist.] Jan. 3, 2007)(Alcala)(animal
law, city ordinance)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-04-01224-CV The City of La Marque v. Toyya Braskey d/b/a The Momma Cat
Appeal from 212th District Court of Galveston County

Jordan v. Sava, Inc. (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Alcala)
[PI-auto, negligence, negligence per se, failure to control speed, safe distance, jury instruction error, sudden
emergency instruction]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
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
Dissenting Opinion by Justice Keyes

In re CN (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Alcala)
[juvenile law, sexual abuse by siblings, exclusion of evidence, outcry testimony]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00309-CV In the Matter of C.N., a Minor Child
Appeal from 314th District Court of Harris County

Volume Millwork , Inc. v. West Houston Airport Corp. (Tex.App.- Houston [1st Dist.] Dec. 14, 2006, pet. denied
3/30/07)(Alcala)(substitute opinion)
[lease law, commercial lease, eviction, forcible detainer, jurisdiction issues, justice court, county court, appeal,
DWOJ, disputed attorney’s fees]
Millwork v. West Houston Airport Corp. (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Alcala)(substitute opinion)
[lease law, commercial lease, eviction, forcible detainer, jurisdiction issues, justice court, county court, appeal,
DWOJ, disputed attorney’s fees]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-03-01214-CV        Volume Millwork, Inc v. West Houston Airport Corporation
Appeal from Co Civil Ct at Law No 1 of Harris County (Judge Jack Cagle)

N. N. v. Inst. for Rehab and Research II (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Alcala)(substitute opinion on
rehearing)
[negligence, sexual assault at faciltiy, future mental anguish damages, constitutionality,
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Justices Nuchia, Jennings and Alcala
01-02-01101-CV        N.N., Individually & a/n/f/ of A.B. v. The Institute for Rehabilitation and Research--Appeal from
334th District Court of Harris County (Hon. J. Dale Wainwright)
(“We reverse the JNOV and reinstate the jury's verdict for future mental anguish damages in the amount of
$625,000. We further remand this cause to the court below for the limited purpose of rendering judgment awarding
appellant future mental anguish damages in the amount of $625,000, plus post-judgment interest as allowed by
law.”)
Dissenting Opinion by Justice Nuchia
(“Many of the facts stated by the majority are evidence of past mental anguish, for which A.B. has been
compensated. There is no evidence, however, to support a finding of or award for future mental anguish.
Accordingly, I would affirm the judgment of the trial court.”)

Central Bank v. Neglett (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Alcala)
[turnover order, guardianship, DWOJ]
DISMISS APPEAL: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-01075-CV        Central Bank of Houston (Correctly named Central Bank) v. Robert Neblett, Successor
Guardian of K.C.N., Minor, Universal Surety of America
Appeal from Probate Court No 1 of Harris County (Hon. Russell Austin)

In re Central Bank (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Alcala)
DISMISS PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00811-CV        In re Central Bank of Houston
Appeal from Probate Court No 1 of Harris County

Baldree v. West Houston Subaru (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Alcala)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-05-00012-CV Dianne Luttrell Baldree and Joann Douglas v. West Houston Subaru, Inc.
Appeal from 280th District Court of Harris County

Jackson v. Jackson (Tex.App. - Houston [1st Dist.] Nov. 2, 2006)(Alcala)
[family law, divorce, mediated settlement agreement, duress claim, MNT, newly discovered evidence]
AFFIRM TC JUDGMENT: Justice Alcala
(Before Chief Justice Radack, Justices Alcala and Bland)
01-04-01215-CV Deborah Joyce Jackson v. Phil Jackson, Jr.
Appeal from 387th District Court of Fort Bend County

Scott v. Gallagher (Tex.App.- Houston [1st Dist.] Nov. 2, 2006)(Alcala)
[prisoner suit, IFP]
AFFIRM TC JUDGMENT: Justice Alcala
(Before Chief Justice Radack, Justices Alcala and Bland)
01-05-00119-CV Michael Scott v. Russell J. Gallagher
Appeal from 240th District Court of Fort Bend County

Another Discovery-Related Mandamus in Litigation over BP Texas City Refinery Explosion

In re BP Products North America (Tex.App.-- Houston [1st. Dist.] Oct. 13, 2006)(by Alcala)
[discovery, claim of privilege]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Taft, Alcala and Higley
01-06-00679-CV In re BP Products North America, Inc.--Appeal from 212th District Court of Galveston County
("We hold that the trial court abused its discretion by concluding that Noble’s affidavit was conclusory and by
striking the affidavit as insufficient to invoke BP’s asserted privileges. As acknowledged in oral argument, BP has
requested that we hold that the documents are privileged without an in camera review or, in the alternative, that we
order that an in camera review be conducted. We do not reach these questions. Our holding today is limited to the
conclusion that the affidavit is not conclusory, and we remand to the trial court for further proceedings consistent
with this opinion.
Accordingly, we conditionally grant BP’s petition for writ of mandamus and direct the trial court to vacate its July 19,
2006 order compelling production of the documents responsive to “Request for Production No. 20” of “Plaintiffs’
Third Set of Written Discovery.” We lift our stay of proceedings ordered July 27, 2006. We are confident that the
trial court will promptly comply, and our writ will issue only if it does not.")

Law Firms Prevails in Fee Dispute With Client Stemming From Fifth Circuit Appeal

Haden v. Sacks, P.C. (Tex.App.-Houston - [1st Dist.] Sep. 7, 2006)(by Alcala)(breach of contract case)
[attorney fee dispute; judgement favorable to law firm affirmed, breach of contract, sworn account, counterclaims,
DTPA, MSJ, NE-MSJ]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Keyes and Alcala
01-01-00200-CV Haden, Charles M., Jr., Individually and Charles McIntyre Haden, Jr. & Co. d/b/a Haden &
Company v. David J. Sacks, P.C. d/b/a Sacks & Associates
Appeal from Co Civil Ct at Law No 2 of Harris County (Judge Gary Michael Block)

Haden v. Sacks, P.C. (Tex.App.-Houston - [1st Dist.] Sep. 7, 2006)(by Alcala)(enforcement case)
[attorneys fees, enforcement of judgment, turnover relief, bankruptcy]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Keyes and Alcala
01-03-00025-CV Charles Haden, Jr., Individually, and Charles McIntyre Hayden, Jr. & Company d/b/a Haden &
Company v. David J. Sacks, P.C. d/b/a Sacks & Associates
Appeal from Co Civil Ct at Law No 2 of Harris County (Hon. Gary Michael Block)
("Under the record presented, we conclude there is no basis on which to conclude that the trial court abused its
discretion by impliedly finding that $90,000 was a necessary and reasonable award of attorney’s fees and costs.
We overrule Haden’s and the company’s first, second, and third sub-issues concerning the trial court’s exercise of
its discretion in awarding costs and attorney’s fees to the law firm pursuant to section 31.002(e) of the turnover
statute. ")

September 1, 2006 - Justice Alcala Sides With BP in Discovery Dispute Over Documents on
2006 Explosion at Refinery - Trial Court's Order Overturned

In Re BP Products (Tex.App.-Houston - [1st Dist.] Sep. 7, 2006)(by Alcala)
[discovery dispute, production of documents, 2005 explosion at Texas City chemical plant]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-06-00140-CV In re BP Products North America, Inc.
Appeal from 212th District Court of Galveston County (Hon. Susan E. Criss)
Texas City explosion and fire on March 23, 2005.

Houston Pipeline Co. v. Bank of America (Tex.App.- Houston [1st Dist.] Aug. 24, 2006)(Alcala)
VACATE TC JUDGMENT AND DISMISS CASE: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Hanks
01-03-01263-CV Houston Pipeline Company, LP v. Bank of America, N.A., As Administrative Agent, and as
Representative of the Wilmington Trust Company, Trustee of the Bammel Gas Trust
Appeal from 280th District Court of Harris County (Judge Tony Lindsay)

Lewis v. Pearland Plaza (Tex.App. - Houston [1st Dist.] Aug. 17, 2006)(Alcala)
[real estate law, landlord tenant, breach of lease case, summary judgment reversed]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-04-00419-CV Carolyn Bowen Lewis and Carolyn Bowen Lewis Inc. v. Pearland Plaza Partners
Appeal from Co Ct at Law No 1 & Probate Ct of Brazoria County (Hon. Jerri Lee Mills)
("Having held that a fact issue regarding Lewis and the Corporations’s affirmative defense of breach of the implied
warranty of suitability precludes summary judgment, we need not address their other issues. We reverse the
judgment of the trial court and remand this cause for proceedings not inconsistent with this opinion.")

August 4, 2006 - Mandamus Granted to Protect Executive From Apex Deposition

In Re BP Products (Tex.App.– Houston [1st Dist.] August 4, 2006)(Alcala)
[discovery, apex deposition, objection, motion to strike, sufficiency of affidavit]
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-06-00613-CV In re BP Products North America, Inc.
Appeal from 212th District Court of Galveston County (Hon. Susan Elizabeth Criss)

In ordering or preventing an apex deposition, a trial court must apply the guidelines set out in Crown Central
Petroleum Corporation v. Garcia, 904 S.W.2d 125 (Tex. 1995). In re Daisy Mfg. Co., 17 S.W.3d 654, 656 (Tex.
2000). Under Crown Central, a corporation may shield a high-level corporate official from a deposition by filing a
motion for a protective order with an affidavit by the official “denying any knowledge of relevant facts.” Crown
Central, 904 S.W.2d at 128. Pursuant to the Texas Rules of Civil Procedure, “[a] person has knowledge of relevant
facts when that person has or may have knowledge of any discoverable matter. The person need not have
admissible information or personal knowledge of the facts.” Tex. R. Civ. P. 192.3(c).
(“We conclude that Manzoni sufficiently denied any knowledge of relevant facts and that BP provided the trial court
with a sufficient affidavit under Crown Central. See id. at 175; Burlington, 99 S.W.3d at 326.Conclusion
We hold that the trial court abused its discretion in striking BP’s affidavit. We therefore conditionally grant BP’s
petition for writ of mandamus, direct the trial court to vacate its June 21, 2006 order striking BP’s affidavit, and
direct the trial court to reinstate BP’s motion for protection.“)

August 3, 2006 - Attorney Fee Award in Eviction Case Appeal Affirmed

Millwork v. West Houston Airport Corp. (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Alcala)(substitute opinion)
Millwork, Inc. v. West Houston Airport Corp. (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Alcala)(opinion withdrawn)
[eviction, forcible entry and detainer FE&D, commercial lease, assigned, no appellate jurisdiction, DWOJ;
jurisdiction of JP court, appeal to county court, amount of recoverable damages and attorney’s fees in excess of
$5,000; award of $28,623.10 as reasonably necessary fees affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-03-01214-CV Volume Millwork, Inc v. West Houston Airport Corporation
Appeal from Co unty Civil C ourt at Law No 1 of Harris County (Hon. Jack Cagle)
(“We have no jurisdiction to review either the county court’s determination on the issue of landlord’s possession of
the [commercial premises] or any finding by the trial court that is essential to the issue of possession of the hangar.
Tex. Prop. Code Ann. § 24.007; fee award affirmed")

Summary Judgment Reversed in Suit Challenging Jail Rules as Interfering with Free Exercise of
Religion

Balawajder v. TDCJ-ID (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Alcala)
[exercise of religion in prison, administrative policy challenged, sj reversed b/c fact questions remain]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Bland
01-04-00820-CV Jeffrey Balawajder v. Texas Department of Criminal Justice Institutional Division
Appeal from 12th District Court of Grimes County (Hon. William McAdams)

Tally Constr. Co. v. Rodgrigues, Inc. (Tex.App.-Houston [1st Dist.] April 6, 2006)(Alcala)
[construction dispute, subcontractor s, Boc]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Alcala and Higley
01-03-01147-CV Talley Construction Company v. Alfonso Rodriguez, Inc., and Gene Robertson, Ind.
Appeal from 133rd District Court of Harris County

In re Sheppard, M.D. (Tex.App.- Houston [1st Dist.] Mar. 30, 2006)(Alcala)(unserved defendant, finality of judgment)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Jennings and Alcala
01-05-00375-CV        In re Robert D. Sheppard, M.D. & Emcard, Inc.
Appeal from 151st District Court of Harris County
Concurring Opinion by Chief Justice Radack

Devon SFS Operating, Inc. v. First Seismic Corp. (Tex.App.-Houston [1st Dist.] Feb. 16, 2006)(Alcala)
[indemnity agreement, attorney's fees]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00077-CV        Devon SFS Operating , Inc., and IMC Global, Inc. v. First Seismic Corporation, a Delaware
Corporation
Appeal from 80th District Court of Harris County (Hon. Kent C. Sullivan)

N.P. v. Methodist Hosp., 190 S.W.3d 217 (Tex.App.- Houston [1st Dist.] Jan. 5, 2006, pet. denied)(Alcala)
[HCLC, liability for sexual exploitation of mental health patient, respondeat superior]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
(Before Chief Justice Radack, Justices Taft and Alcala)
01-04-00213-CV N. P. v. The Methodist Hospital, The Methodist Health Care System, and Mark D. Kennerson
Appeal from 165th District Court of Harris County (Hon. Elizabeth Ray)

Criminal Causes

Christensen v. State (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Justice Elsa Alcala)(criminal case)
[theft by deception, fundraising]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Alcala
Before Justices Taft, Jennings and Alcala)
01-04-00713-CR Edward Christensen v. The State of Texas
Appeal from 337th District Court of Harris County
Dissenting Opinion by Justice Terry Jennings

Wiley v. State    (Tex.App.-Houston [1st Dist.] May 25, 2006)(Alcala)(criminal case)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Bland
01-05-00033-CR Frank James Wiley v. The State of Texas
Appeal from 184th District Court of Harris County