2006 Opinions by Justice Sam Nuchia

LINKS TO OPINIONS BY OTHER JUSTICES OF THE FIRST COURT OF APPEALS
(Houston)

Chief Justice Sherry Radack
Justice Elsa Alcala
Justice Jane Nenninger Bland
Justice Laura Carter Higley
Justice Evelyn Keyes
Justice George Hanks, Jr
Justice Terry Jennings
Justice Timothy Taft

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

2006 Opinions by Justice Nuchia (sample)

Justice Sam Nuchia Dissents on Issue of Future Mental Anguish Damages in
Sexual Assault Case

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 facility, 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.”)

Craig Alexander Edwards v. Texas (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Sam Nuchia)
(criminal case with concurrence by Jennings)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Higley
01-05-00855-CR        Craig Alexander Edwards v. The State of Texas
Appeal from 230th District Court of Harris County
Concurring Opinion by Justice Jennings

Comptroller v. Waites (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Sam Nuchia)
[government entity law, sovereign immunity, ILA, UDJA, declaratory judgment claim re:
indemnification of public servant, effort to collect federal court judgment in Section 1983 suit
based on sexual misconduct of police officer]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Judge Davie L. Wilson, Justices Nuchia and Higley
01-06-00536-CV The Comptroller of Public Accounts of Texas, The Attorney General of
Texas, and Prairie View A&M University v. Adrienne Waites
Appeal from 155th District Court of Waller County (Hon. Dan R. Beck)

Rappa v. DFPS f/k/a CPS (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Sam Nuchia)
[family law, termination of parental rights]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Higley
01-06-00253-CV Rick Walker and Jessica Rappa v. Department of Family and Protective
Services
Appeal from 344th District Court of Chambers County
Concurring and Dissenting Opinion by Justice Jennings

Colbert v. DFPS f/k/a CPS (Tex.App.- Houston [1st Dist.] Dec. 21, 2006, pet. granted)
(Justice Sam Nuchia) [termination of parental rights, several children]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Higley
01-04-01232-CV Ericka Shannette Colbert v. Department of Family and Protective Services
Appeal from 314th District Court of Harris County
Concurring and Dissenting Opinion by Justice Jennings

City of Houston v. Southern Electrical (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)
[governmental entity law, sovereign immunity waiver, sue and be sued, plea to the
jurisdiction, Tooke v. City of Mexia, standing]

Justice Nuchia Reverses Trial Court in City Immunity Case and Remands in Light of
Tooke v. City of Mexia

City of Houston v. Southern Electrical (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)
[governmental entity law, sovereign immunity waiver, plea to the jurisdiction,
Tooke v. City of Mexia]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Samuel Nuchia
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00015-CV        City of Houston v. Southern Electrical Services, Inc., As Assignee of
The Morganti Group, Inc.--Appeal from 157th District Court of Harris County

In the its second issue, the City contends that its immunity from suit is not waived by the
"plead and be impleaded" language in section 51.075 of the Local Government Code, or by
the "sue and be sued" language in article II, section 1 of the Houston City Charter. See Tex.
Loc. Gov't Code § 51.075; Houston,Tex., Charter art. II, § 1. After we issued our original
opinion in this case overruling the City's second issue, the supreme court held, in Tooke v.
City of Mexia, that the phrases "sue and be sued" and "plead and be impleaded," by
themselves, do not waive governmental immunity. 197 S.W.3d 325, 342-43 (Tex. 2006)
(overruling Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812 (Tex. 1970).
Therefore, such language in section 51.075 of the Local Government Code and the
Houston City Charter cannot be the basis for ruling that the City's governmental immunity
has been waived.

However, in Tooke, the supreme court noted that the Legislature had recently enacted
sections 271.151-.106 of the Local Government Code, waiving immunity from suit for
contract claims against most local governmental entities and applying to contracts executed
before the effective date of the act, unless immunity had been waived before the act
became effective. Tooke, 197 S.W.3d at 344-45. Although appellees urge this Court to
decide this appeal based on sections 271.151-.160, we conclude that the issue of the
application of this statute should be fully developed in the trial court. See City of Houston v.
Clear Channel Outdoor, Inc., 197 S.W.3d 386 (Tex. 2006).

Haynes v. State (Tex.App.- Houston [1st. Dist.] Nov. 16, 2006)(Sam Nuchia)(criminal case)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Justice Nuchia
Before Justices Nuchia, Jennings and Higley)
01-05-00803-CR Larry Glenn Haynes v. The State of Texas
Appeal from 182nd District Court of Harris County

Eubanks v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)
(substitute opinion on rehearing)[premises liability, slip and fall, parking lot]
AFFIRM TC JUDGMENT: Opinion by Justice Samuel Nuchia
Before Justices Nuchia, Jennings and Keyes
01-05-00833-CV        Leonard Eubanks v. Pappas Restaurants, Inc., and Pappas Partners,
L.P.
Appeal from 151st District Court of Harris County

Craig Alexander Edwards v. Texas (Tex.App.- Houston [1st Dist.] Dec. 7, 2006)(Nuchia)
(criminal case with concurrence by Jennings)
AFFIRM TC JUDGMENT: Opinion by Justice Sam Nuchia
Before Justices Nuchia, Jennings and Higley
01-05-00855-CR        Craig Alexander Edwards v. The State of Texas
Appeal from 230th District Court of Harris County
Concurring Opinion by Justice Jennings

The Houston Chronicle v. Thomas (Tex.App.-Houston [1st Dist.] June 8, 2006)(Nuchia)
[Open Records Act, Public Information Act, UDJA, ILA, mootness, public interest]
AFFIRM TC JUDGMENT: Opinion by Justice Sam Nuchia
Before Chief Justice Radack, Justices Taft and Nuchia
01-05-00873-CV The Houston Chronicle Publishing Company and Peggy O'Hare v. Hon.
Tommy Thomas, Sheriff of Harris County, Texas
Appeal from 165th District Court of Harris County

Pye’s Auto Sales v. Gulf State Finance Co. (Tex.App.-Houston [1st Dist.] May 25, 2006)
(Sam Nuchia)(consumer law)
[auto financing, alter ego, piercing corporate veil, actual authority, apparent authority,
ratification, Sidney is not liable in his individual capacity]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER
JUDGMENT: Opinion by Justice Nuchia
(Before Chief Justice Radack, Justices Taft and Nuchia)
01-05-00670-CV Pye's Auto Sales, Inc., and Sidney T. Pey, III, a/k/a Sidney Pye v. Gulf
States Finance Company
Appeal from 151st District Court of Harris County (Hon. Caroline E. Baker)

Ex Parte Andrea Yates (Tex.App.--Houston [1st Dist.] March 16, 2006)(Sam Nuchia)
AFFIRM TC JUDGMENT [trial court's denial of habeas corpus relief]:
Opinion by Justice Nuchia
[alleged prosecutorial misconduct based on false testimony by expert at trial; appellant
failed to show DA had reason to question veracity of Dr. Dietz's testimony; no affirmative
duty to independently investigate witness testimony before using it when State had no
reason to doubt its veracity; no prosecutorial misconduct shown]
Before Chief Justice Radack, Justices Taft and Nuchia
01-06-00222-CR   EX PARTE ANDREA PIA YATES
Appeal from 230th District Court of Harris County
Prior murder conviction reversed in Yates v. State, 171 S.W.3d 215, 220 (Tex.App.--
Houston [1st Dist.] 2005, pet, ref'd)

Wyatt v. DFPS (Tex.App.- Houston [1st Dist.] Feb. 16, 2006)(Opinion by Sam Nuchia)
[termination of parental rights, drugs, sex abuse]
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Hanks
01-05-00214-CV        Crystall Lee Wyatt v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County (Hon. Kent Ellis)

Russell v. Russell (Tex.App.- Houston [1st Dist.] Feb.2, 2006)(Sam Nuchia, Justice)
[family law, divorce, property division, separate property, value of estate]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Higley
01-04-00984-CV Roger Russell v. Tamara Russell
Appeal from 311th District Court of Harris County (Hon. Doug Warne)

Justice Nuchia Makes His Mark in
Neck-Breaking Jailhouse Justice

TDCJ v. Thomas (Tex.App.- Houston [1st Dist.] Apr. 19, 2007,
pet. filed)(Nuchia)(Texas Tort Claims Act)

Former Houston Police Chief Sam Nuchia Rules for
Defendants in Suit Brought by Daughter of Prisoner
Who Died of Asphyxiation While Being "Subdued" by
Guards with Pepperspray and a Guard's Knee in His
Neck While a Prison Nurse Stood By and Watched.

Nuchia's opinion holds that suit should be dismissed because
Plaintiff's attorney did not word his letter correctly, and
Defendants were not actually aware of possible wrongdoing
on their part.

In the interlocutory appeal by the Texas Department of
Criminal Justice and a nurse who was present when a prison
inmate died in the course of a "major use of force" incident,
the court of appeals renders judgment for the prison system
on immunity grounds, and for the nurse based on qualified
immunity, finding that her decision not to provide CPR to the
prisoner, whose vital signs had stopped, was not
unreasonable.

Finding that the notice requirement under Texas Tort Claims
Acts (TTCA) is now jurisdictional, Justice Nuchia holds that a
letter from attorney suing on behalf of prisoner's estate and
child was not detailed enough to satisfy the pre-suit notice
requirement, and that TDCJ was thus entitled to jurisdictional
dismissal. Justice Nuchia further holds that TDCJ was not
subjectively aware enough that it may have been at fault
when it killed uncooperative inmate in attempting to move him
to a psychiatric unit, and that the actual awareness exception
to the notice requirement under the statute was thus not
satisfied.

Comment: By this standard, even undisputed evidence that a
prisoner died from asphyxiation when he was down on the
floor with an officer's knee in his neck will not suffice. It seems
that prison officials would have to admit guilt before a suit to
impose liability can even be brought as a matter of jurisdiction.
To her credit, Justice Evelyn Keyes dissented and would have
affirmed the trial court's denial of the prison system's plea to
the jurisdiction, and the denial of the summary judgment
motion filed on behalf of the correctional nurse.