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

Justice Evelyn Keys withdraws her prior separate opinion in precedent-breaking breach of
contract case against TSU, and urges Supreme Court to Adopt Waiver-by-Conduct Exception to
Sovereign Immunity Doctrine, which allows state entities to breach their contracts without
consequences.

TSU v. State Street (Tex.App.--Houston [1st Dist.] Jan. 11, 2007)(substituted separate opinion by Keyes)(pet. denied)
OPINION CONCURRING IN PART WITH, AND DISSENTING IN PART TO, THIS COURT'S JUDGMENT:
Concurring and Dissenting Opinion by Justice Evelyn Keyes
Before Justices Nuchia, Keyes and Hanks
01-06-00497-CV Texas Southern University v. State Street Bank and Trust Company, CMS Viron Corporation
Appeal from 80th District Court of Harris County

Jan 11. 2007 - First Court's Evelyn Keyes joins majority in TSU breach-of-contract case and calls on Supreme Court to recognize
waiver-by-conduct exception to sovereign immunity in breach of contract cases against state entities; issues new opinion.
TSU v. State Street Bank and Trust Company (Tex.App.--Houston [1st Dist.] Jan. 11, 2007)(substituted separate opinion by Keyes)
Majority issues new opinion, again authored by Justice George C. Hanks. Tex. S. Univ. v. State Street Bank and Trust Co. II
(Tex.App.-Houston [1st Dist.] Jan. 11, 2007)(substitute opinion by Justice Hanks). Texas Supreme Court had rejected recognition of
waiver-by-conduct theory of immunity waiver every time it was raised in previous cases.

MOST NOTABLE 2006 OPINION BY JUSTICE KEYES

Roman v. Roman 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)(frozen embryo agreement
between spouses enforceable); petition for review pending in the Texas Supreme Court No. 06-0554 7/5/2006
AUGUSTA ROMAN V. RANDY M. ROMAN

DISSENTING OPINIONS BY JUSTICE KEYES (2006)

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]7
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 DFPS (CPS ) (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Keyes)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-06-00052-CV        In re Department of Family and Protective Services
Appeal from 300th District Court of Brazoria County

CPS TDFPS v. Alternatives in Motion (Tex.App.- Houston [1st Dist.] Dec. 14, 2006, pet. denied 3/30/07)(Keyes)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-06-00092-CV        Department of Family and Protective Services v. Alternatives in Motion
Appeal from 300th District Court of Brazoria County

Burditt v. Whataburger (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Keyes)
[tort law, false imprisonment, shopkeeper’s privilege, DTPA, negligence, NE-MSJ]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Jennings and Hanks
01-05-00531-CV        Steve Burditt v. Whataburger, Inc.
Appeal from Co Civil Ct at Law No 4 of Harris County

Brown v. Traylor (Tex.App.- Houston [1st Dist.] Nov. 2, 2006)(Taft)(on motion for en banc consideration)
[probate law, disputed will]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS: Opinion by Justice Taft
(Before Justices Taft, Higley and Bland)
01-04-01091-CV George Brown v. Lucy Traylor and Leona Simpson
Appeal from Probate Court No 4 of Harris County (Hon. William McCulloch)
The panel denies the motion for rehearing. Furthermore, a majority of the justices of this Court deny the motion for
en banc reconsideration. The panel’’s April 27, 2006 opinion and judgment remain unchanged by this supplemental
opinion, which we issue to address very briefly the opinion dissenting from the denial of en banc reconsideration.
Dissenting Opinion by by Justice Keyes (dissenting from denial of en banc reconsideration)
This is a classic example of the adage that bad cases make bad law. Appellant, George C. Brown (“George”) appeals
from a judgment, rendered upon a jury verdict, admitting to probate what the jury concluded was a true and correct
copy of a valid will executed by his father, Henry Brown (“Henry”) on March 13, 1999 (the 1999 Will Copy). Because I
believe the case was tried under an incorrect charge and the result is an appellate opinion that misconstrues and
gravely weakens the statutory protections against the probate of fraudulent wills, I respectfully dissent from denial of
en banc review.

In Re Bill Heard Chevrolet (Tex.App.- Houston [1st Dist.] Nov. 30, 2006)(Taft)(a rbitration Mandamus denied)
DENY PETITION FOR WRIT OF MANDAMUS: Justice Taft
Before Justices Taft, Keyes and Hanks
01-06-00324-CV In re Bill Heard Chevrolet, LTD
Appeal from 268th District Court of Fort Bend County
Concurring Opinion by Justice Keyes

Justice Keyes Opposes Reversal of Murder Conviction Involving Claim of Self-Defense

Wyborney v. State of Texas (Tex.App.– Houston [1st Dist.] Nov. 22, 2006)(Hanks)(criminal case)
[murder conviction, self-defense defense]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Hanks
Before Justices Nuchia, Keyes and Hanks)
01-05-00158-CR        Paul Edward Wyborney v. The State of Texas
Appeal from 262nd District Court of Harris County
Dissenting Opinion by Justice Keyes (would hold that error was harmless)

Bison Building Materials v. Aldridge (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jane Bland)
[arbitration, employment injury, workplace safety, post-injury waiver]
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Keyes, Alcala and Bland
01-05-00330-CV Bison Building Materials, Ltd. v. Lloyd K. Aldridge
Appeal from 334th District Court of Harris County (Judge Sharon McCally)
(“Bison Building Materials, Ltd. and Lloyd K. Aldridge appeal an interlocutory trial court order confirming in part and
vacating in part an arbitration decision that dismissed Aldridge’s claims against Bison. We conclude that we lack
statutory authority to consider this interlocutory appeal and therefore dismiss it for want of jurisdiction. ... Strictly
construing section 171.098(a), as we must, we hold that the Order at issue here is not an appealable interlocutory
order. Walker Sand, 95 S.W.3d at 516. “It is fundamental error for an appellate court to assume jurisdiction over an
interlocutory order when not expressly authorized to do so by statute.” Gathe v. Cigna Healthplan of Tex., Inc., 879 S.
W.2d 360, 363 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing New York Underwriters Ins. Co. v. Sanchez,
799 S.W.2d 677, 679 (Tex. 1990)). We do not imply a lack of jurisdiction from the TAA provision allowing
interlocutory appeals of certain arbitration orders. Rather, absent a final judgment, or statutory authorization, we do
not have state court appellate jurisdiction in the first instance. We therefore dismiss the appeal for want of
jurisdiction.”)
Opinion Dissenting to this Court's Judgment by Justice Keyes
(“This is a case of first impression for this Court with important jurisdictional implications for Texas arbitration law.
Because I believe the majority has incorrectly decided this appeal, I respectfully dissent.”)

Justice Keyes writes separately in million dollar bail case

Pharris v. State of Texas (Tex.App.-Houston [1st Dist.] June 8, 2006)(Nuchia)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Hanks
01-05-00727-CR Dennis Joe Pharris v. The State of Texas
Appeal from 351st District Court of Harris County
("We reverse the trial court’s order setting bail at $1,000,000 and render judgment that bail be set at $500,000.")
Concurring opinion by Keyes
I concur in the judgment. I write separately to address the State’s mootness argument and to clarify this Court’s
jurisdiction over this appeal. Appellant timely appealed from a habeas corpus hearing held on July 15, 2005, in which
appellant’s bail was set by the trial court at $2,500,000.

Recent Majority Opinions Authored by Justice Evelyn Keyes

Burditt v. Whataburger (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Keyes)
[tort law, false imprisonment, shopkeeper’s privilege, DTPA, negligence, NE-MSJ]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Jennings and Hanks
01-05-00531-CV        Steve Burditt v. Whataburger, Inc.
Appeal from Co Civil Ct at Law No 4 of Harris County

In Re CPS (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Keyes)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-06-00052-CV        In re Department of Family and Protective Services
Appeal from 300th District Court of Brazoria County

CPS v. Alternatives (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Keyes)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-06-00092-CV        Department of Family and Protective Services v. Alternatives in Motion
Appeal from 300th District Court of Brazoria County

Whitworth v. Whitworth (Tex.App.– Houston [1st Dist.] Nov. 22, 2006)(Keyes)
[family law, divorce, SAPCR, intervenor, standing of nonparent]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Keyes
Before Justices Nuchia, Keyes and Hanks)
01-04-01026-CV        Tammy Renee Whitworth v. Douglas Wayne Whitworth and Carol Whitworth--Appeal from
257th District Court of Harris County
("We hold that Carol failed to establish standing to seek managing conservatorship of K.C. and that the trial court
abused its discretion in awarding her temporary managing conservatorship of K.C. and bootstrapping its award of
permanent managing conservatorship on its improper award of temporary managing conservatorship to a non-parent
pursuant to a suit for custody over which it lacked subject matter jurisdiction.")

In Re General Metal Fab. Corp (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Keyes)
GRANT PETITION FOR WRIT OF MANDAMUS: Justice Keyes
Before Justices Taft, Keyes and Hanks
01-06-00879-CV In re General Metal Fabrication Corp., GMF Leasing, Inc., and Arnold Curry
Appeal from 133rd District Court of Harris County

Laneisha Davis v. Autonation USA Corp. (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Keyes)
AFFIRM TC JUDGMENT: Justice Keyes
Before Justices Taft, Keyes and Hanks
01-05-00791-CV Laneisha Davis v. Autonation USA Corporation, Autonation USA, Autonation, Inc., Autonation USA
Corporation d/b/a Mike Hall Chevrolet, Inc., Mike Hall Chevrolet d/b/a Champion Chevrolet Hwy, 6, Mike Hall
Chevrolet, Inc., d/b/a Champion Chevrolet--Appeal from 270th District Court of Harris County (Hon. Brent Gamble)

TRQ Captain's Landing, L.P. v. Galvestion Central Appraisal District (Tex.App.- Houston Oct. 5, 2006)(Keyes)
[tax appeal, exemption, equitable owner]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes
(Before Justices Keyes, Alcala and Bland)
01-05-00496-CV TRQ Captain's Landing, L.P. and American Housing Foundation v. Galveston Central Appraisal
District--Appeal from 10th District Court of Galveston County
Dissenting Opinion by Bland

Carruth v. Sci Texas Funeral Services, Inc. (Tex.App.–Houston [1st Dist.] July 20, 2006)(by Keyes)(consumer law
case)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks)
01-04-00993-CV Hunter Carruth v. Sci Texas Funeral Services, Inc.
Appeal from Co Civil Ct at Law No 4 of Harris County

New Process Steel v. Sharp Freight (Tex.App.–Houston [1st Dist.] April 13, 2006)(Keyes)
[Breach of contract BoC, fraudulent misrepresentation, future conduct, parol evidence rule]
AFFIRM TC JUDGMENT: Opinion by Justice Evelyn Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-00764-CV New Process Steel, L.P. v. Sharp Freight Systems, Inc.
Appeal from 215th District Court of Harris County (Hon. Levi J. Benton)

Naik v. Wu (Tex.App.- Houston [1st Dist.] Feb. 16, 2006)(Keyes)
[DWOP, multiple continuances, motion to reinstate denied]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-01127-CV        Bharatkumar D. Naik and Janki B. Naik v. Jo-Chin Wu
Appeal from Co Civil Ct at Law No 4 of Harris County (Hon. Cynthia Crowe)

Gray v. Pasadena Bayshore Hospital, Inc. (Tex.App.- Houston [1st Dist.] Jan. 26, 2006)(Keyes)
[HCLC, medical malpractice, expert report]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Hanks
01-04-00918-CV        Sylvia Gray v. Pasadena Bayshore Hospital, Inc., d/b/a Bayshore Medical Center and Ira H.
Rapp, M.D.--Appeal from 281st District Court of Harris County (Hon. David J. Bernal)