Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

(Justice Johnson not sitting) 10-0434 ½ Price Checks Cashed v. United Automobile Insurance Co. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Mr. Gavin N. Lewis, Aledo For respondent: Mr. Douglas W. Alexander, Austin The issue is whether an action to recover on a dishonored check should be considered essentially a contract suit that allows awarding . In this case ½ Price Checks Cashed sued after United refused to pay on a check its bank would not honor. The trial court awarded attorneys fees, but the court of appeals reversed, citing its decision in Time Out Grocery v. The Vanguard Group. United argues that a contract, for attorneys fees recoverable by statute, must be a bilateral agreement. Half-Price contends Civil Practices and Remedies Code 38.001 extends to statutory obligations, citing Medical City Dallas v. Carlisle Corp. (allowing attorneys fees for warranty-breach action). This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0574 20801 Inc. v. John L. Parker from Harris County and the 14th District Court of Appeals, Houston For petitioner: David P. Andis, The Woodlands For respondent: Barney L. McCoy, Houston The Supreme Court will hear arguments on the issue of whether ‘safe harbor’ element was shown in dram shop action. The principal issue is whether the appeals court erred by holding that a bar and pool hall owner failed to establish a “safe harbor” under Texas’ statutory dram shop law by proving that it did not encourage employees to serve alcohol to an intoxicated customer. Parker sued 20801, the owner of Slick Willie’s, alleging that its employees provided him perhaps 15 free drinks at the bar’s grand opening before he was assaulted in the parking lot by another bar patron. Parker claimed the drinks were a proximate cause of the head injuries he suffered in the fight. The trial court granted summary judgment to 20801 Inc., but the court of appeals reversed on the safe harbor provision.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0580 A.G. Edwards & Sons Inc. v. Maria Alicia Beyer from El Paso County and the Eighth District Court of Appeals, El Paso In this case alleging a financial institution lost documentation creating a survivorship right in a joint account, the principal issues are (1) whether Texas Probate Code section 439(a) bars extrinsic evidence of intent in a contract-breach claim over creation of the joint-tenancy account and (2) whether the “intertwining” exception to the duty to segregate attorney’s fees should include fees recovery in a related federal court proceeding. Beyer sued A.G. Edwards & Sons for conversion and breach of contract, among other claims, after the company allegedly lost an agreement that would have made Beyer joint owner of her father’s investment account and sole owner when he died. Four days before her father lapsed into a coma, A.G. Edwards told her the agreement was missing, then froze the $1.19 million account after he died. When Beyer initially sued for negligence, the company submitted the proceeds to federal court to determine ownership. In this case Beyer sought as damages the money from the account split among her siblings to settle the interpleader action in federal court. The court of appeals affirmed a breach-of-contract verdict, admitting evidence that showed the father’s intent to create the joint account, and affirmed attorneys fees that were not segregated because the court held the fees were inextricably intertwined.

In this health care-liability claim, a principal issue is whether a chiropractor’s expert testimony was improper to establish the duty to inform. Felton sued after he suffered a stroke as Dr. Lovett manipulated Felton’s neck to relieve pain. Doctors determined the stroke resulted from a tear in a spinal artery. A jury found for Lovett on Felton’s negligence claim, but for Felton on his second claim, that Lovett failed to inform him of the risk posed by the neck manipulation. The court of appeals reversed, noting Felton’s expert, a chiropractor, testified that neck manipulations were risky only if a problem exists with the spinal artery or if the adjustment were performed improperly. In this appeal Felton argues that the appeals court relied on the chiropractor’s opinion as it addressed causation, which he was not qualified by statute to give.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0683 and 10-0714 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0683 and 10-0714 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0818 Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corp. and Robert E. Tang from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner Akin, Gump: Jeffrey S. Levinger, Dallas For cross-petitioners/respondents National Development: Michael L. Jones, Dallas Among principal issues in this legal malpractice case are (1) whether the damage award should be reduced by what the plaintiff would have owed for a contingency fee in the underlying suit; (2) whether legally sufficient evidence supported damages based on stock value in the plaintiff’s joint venture; and (3) whether legal fees and expenses for an appeal allegedly taken because of the malpractice were recoverable as economic damages. National Development and Research sued Akin, Gump over the trial court’s determination that lawyers failed to submit proper jury questions. A jury in the malpractice action found for NDR. The trial court refused to reduce damages by the 10 percent contingency fee NDR would have paid Akin, Gump for the underlying litigation. The court of appeals reduced the award by other attorneys fees calculations, but otherwise affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0955 Allen Keller Co. v. Barbara Jean Foreman, et al. from Gillespie County and the Fourth District Court of Appeals, San Antonio granted on rehearing For petitioner: Wade Crosnoe, Austin For respondents: Randy Howry, Austin The issue is whether a contractor working for a county owes a duty to protect the public from a danger created pursuant to a contract requiring absolute compliance. In this case a car in which Foreman’s daughter was a passenger drove through a gap between a guardrail and an embankment Keller widened according to the county’s mandatory specifications. Foreman’s daughter drowned when the car plunged into the river. The trial court granted summary judgment for Keller, but the court of appeals reversed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0110 American General Finance Inc. v. Kyle Allen from Bexar County and the Fourth District Court of Appeals, Corpus Christi/Edinburg For petitioner: Richard C. Danysh, San Antonio For respondent: Thomas H. Crofts Jr., San Antonio A principal issue is whether a borrower qualifies as a consumer under the Deceptive Trade Practices Act when the lender promised escrow services in addition to the loan. In this case Allen sued American General Finance on a counterclaim after foreclosure of a house he owned on which the company made a home-equity loan and promised to pay outstanding taxes. Before this suit, Allen won excess proceeds from the house sale, which American General Finance then tried to get by imposing a constructive trust. Allen counterclaimed in that the company violated the Deceptive Trade Practices Act. On that claim the trial court granted summary judgment against Allen. The court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0554 American Zurich Insurance Co. v. Daniel Samudio from Harris County and the First District Court of Appeals, Houston For petitioner: Robert D. Stokes, Austin For respondent: Byron C. Keeling, Houston The principal issues in this workers-compensation impairment-rating dispute are (1) whether a trial court has jurisdiction over an impairment-rating dispute when only one rating was before the workers-comp division and (2) whether the trial court or appeals court has jurisdiction to assign a new impairment rating if the one presented to the workers-comp division was invalid. In this case Zurich contested Samudio’s 20-percent impairment rating a doctor calculated for his spinal injury that resulted from a fall at work, arguing that the impairment rating was not properly calculated according to mandated American Medical Association guidelines. The court of appeals determined that the rating methodology the doctor used to establish Samudio’s impairment rating might not have been proper, but the rating was valid in the absence of any other presented in the administrative hearing. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Debra Lehrmann

(Justice Guzman not sitting) 08-0833 Anglo-Dutch Petroleum International Inc. v. Greenberg Peden P.C. and Gerard J. Swonke from Harris County and the 14th District Court of Appeals, Houston For petitioners: Gregory S. Coleman, Austin For amicus curiae, Abrams Scott & Bickley: Christopher S. Johns, Austin For respondents: Robert M. (Randy) Roach Jr., Houston In this dispute over an allegedly ambiguous contingency-fee agreement involving work by an attorney acting of counsel, the principal issues are (1) whether potential ambiguity should be construed against the attorney who drafted it for an existing client and (2) whether the trial court should have instructed jurors on the lawyer’s fiduciary duty to the client. In this case Swonke, of counsel to Greenberg Peden, worked for Anglo-Dutch on a lawsuit it eventually won with a $70.5-million verdict. Anglo-Dutch refused to pay Swonke the percentage he claimed he was owed because it contended Greenberg Peden, not Swonke individually, represented the company. The trial court ruled for Swonke. The court of appeals affirmed, holding in part that the ambiguous agreement should not be construed against the attorney who drafted it. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0615 Ashford Partners Ltd. v. ECO Resources Inc. from Fort Bend County and the First District Court of Appeals, Houston For petitioner: Charles Watson, Austin For respondent: Michael P. Cash, Houston Principal issues in this lease dispute over a construction defect are (1) whether Ashford, which took over ECO’s building lease when it bought the building, had a duty to complete the construction “punch list” according to ECO’s plans even though ECO had signed an estoppel agreement with the previous owner “accepting the premises without exception” and (2) whether the damages measure for the construction defect should be diminished lease value instead of repair costs. After the building’s foundation cracked and tilted, Ashford sued the contractor and sued to declare it had not breached the lease with ECO. ECO countersued for breach, arguing that Ashford, as the landlord by assignment, assumed the original landlord’s obligation to complete the building according to plans. The trial court awarded ECO damages for diminished lease value and attorneys fees. On review, the appeals court affirmed, holding in part that Ashford exclusively failed to complete a necessary punch-list item linked to the foundation problem after it assumed the lease but before the deadline for completing the punch list. The court of appeals also held diminution of the lease value was the proper damages measure because ECO leased the building and did not own it. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0572 Gail Ashley v. Doris D. Hawkins from Montgomery County and the Ninth District Court of Appeals, Beaumont For petitioner: R. Brent Cooper, Dallas, and Kimberley M. Spurlock, Humble For respondent: James B. Manley, Cleveland For amicus curiae State of Texas: Rance L. Craft, Austin The issue is whether the statute of limitations is tolled during a person’s absence from the state but amenable to service. In this case Hawkins sued Ashley, claiming injuries from an automobile accident. Hawkins filed a petition 60 days before the limitations period ended. The trial court dismissed the claim for failure to prosecute it, then reinstated it, then dismissed it again, then reinstated it a second time. A year after filing suit Hawkins served Ashley, who moved to California after the accident. Ashley moved to dismiss for summary judgment, based on limitations and failure to diligently pursue the claim, which the trial court granted. The court of appeals reversed, holding that Texas Civil Practices and Remedies Code section 16.063 suspended limitations regardless of Hawkins’ diligence in serving process. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0375 Atmos Energy Corp., et al. v. Cities of Allen, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners/cross-respondents companies: Ann M. Coffin and David Duggins, Austin For petitioners/cross-respondents cities: Jose E. de la Fuente, Austin For respondent Railroad Commission: Priscilla Hubenak, Austin The principal issues are (1) whether the Texas Railroad Commission has appellate jurisdiction over the cities’ denials of a utility’s interim rate-increase filing and, if so, (2) whether the cities get a contested hearing for an interim-rate adjustment. In this case Allen and other cities sued for a declaratory judgment to void an administrative rule permitting interim rates for gas utilities’ infrastructure improvements because the rule did not provide for a contested hearing. Allen and the other cities rejected the rate adjustments, but the Railroad Commission granted them without an evidentiary hearing. The trial court denied the cities’ request that it declare the rule void, finding the cities could conduct a ministerial review of an interim rate increase but not otherwise deny it. The court of appeals affirmed that cities were not entitled to an adjudicatory hearing on an interim rate adjustment and held the Railroad Commission did not have appellate jurisdiction to review the cities’ denial. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0801 S. Murthy Badiga, M.D. v. Maricruz Lopez from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Diana L. Faust, Dallas For respondent: E. A. Villareal Jr., Edinburg The Supreme Court will hear arguments on whether in a medical-malpractice case a trial court’s refusal to dismiss for failure to file a timely expert report can be subject to an interlocutory appeal. In this case the expert report was served three and a half months after the 120-day deadline, after the trial court granted two motions to extend time. A principal issue in this medical-malpractice case is whether an interlocutory appeal can be taken from a trial court’s refusal to dismiss the lawsuit because an expert report was not filed on time. In this case the expert report was served three and a half months after the 120-day deadline, after the trial court granted two extensions. To support the second motion, Lopez contended the report was late because of a clerical error, not indifference. The case poses a statutory conflict between a provision that prohibits interlocutory appeals from orders denying dismissal when an extension is granted to cure a deficient expert report and a provision allowing such appeals when a dismissal motion is denied when an expert report is not filed on time. In this case the court of appeals dismissed the interlocutory appeal for want of jurisdiction. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0244 Basic Capital Management Inc., et al. v. Dynex Commercial Inc. and Dynex Capital Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: William Dorsaneo, Dallas For respondents: Deborah G. Hankinson, Dallas In this breach-of-contract case involving real-estate loans the principal issues question (1) whether Basic Capital Management’s affiliate entities were third-party beneficiaries of a loan commitment under which they may recover; (2) whether, if so, they have capacity to recover for Single Asset Bankruptcy Remote Borrowing Entities authorized as borrowers if acceptable by the lender (or whether Dynex, the lender, waived its challenge by failing to file a verified denial); and (3) whether consequential damages for lost opportunity or, alternatively, damages for increased costs may be recovered. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0074 Thomas O. Bennett Jr. and James B. Bonham Corp. v. Randy Reynolds from San Saba County and the Third District Court of Appeals, Austin For petitioners: Susan S. Vance, Austin For respondent: David Keltner, Fort Worth The principal issues in this dispute over cattle belonging to one rancher allegedly sold by another are (1) whether $1.25 million in punitive damages violates due process when actual damages were $5,300; (2) whether agency principles support punitive damages against a corporation for its president’s acts; and (3) whether punitive damages against the corporation may be based on “reverse veil-piercing.” In this case Reynolds sued Bennett and the Bonham corporation for conversion, alleging Bennett sold Reynolds’ cattle on the corporation’s land. Bennett’s daughters own the corporation. Bennett, the president but not a shareholder, lives on the corporate property and runs his own cattle on it without charge. The court of appeals affirmed the punitive damages. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0522 Benny P. Phillips, M.D. v. Dale Bramlett from Lubbock County and the Seventh District Court of Appeals, Amarillo For petitioner: Jim Hund, Lubbock For respondents: John Smithee, Amarillo The Supreme Court will hear arguments of whether Stowers doctrine applies to avoid statutory damages cap in med-mal award. The principal issue is whether medical-malpractice damages are capped under the Medical Liability Insurance Improvement Act when the doctor’s liability insurer may be liable on a bad-faith claim. In this case the trial court ruled that the insurance company’s refusal to settle the case brought it under an exception to the statutory damages limit. Phillips also contends that the plaintiff’s jury argument – that they should send a message and “buck the liberal treatment” of doctors by previous med-mal juries – was incurable. In his lawsuit Bramlett claimed his wife died after a hysterectomy because her surgeon did not check on her before leaving the hospital and did not check his voice mail to learn early enough that she suffered from internal bleeding after her operation. Phillips argues that the jury’s multi-million verdict should have been capped by the medical-malpractice statute because the exception to those limits for an insurer that imprudently rejects a settlement offer – the basis of the Stowers doctrine – would not apply because the judgment was against the doctor, not the insurance company. Even if it does apply to the insurer, he contends, Bramlett did not prove the insurer refused an offer an “ordinary prudent insurer” should have accepted. The trial court refused to cap the damages and the court of appeals affirmed.

The principal issues in this dispute over calculating health care-liability damages are (1) whether the Supreme Court has exclusive jurisdiction to enforce its mandate on remand; (2) whether post-judgment interest accrues from the first trial-court judgment or from the judgment on remand; and (3) whether the trial court properly vacated its first judgment when the Supreme Court remanded without instructions to vacate. In a first appeal in this case, in which Dr. Phillips contended the trial court erred by not capping, the Supreme Court remanded, holding that damages awarded against Dr. Phillips should have been capped consistent with the Court's opinion. On remand the trial court entered a second judgment, capping damages and awarding post-judgment interest beginning with the second judgment's date. When Bramlett appealed, the appeals court rejected Phillips' dismissal motion – based on his contention that the Supreme Court retained exclusive jurisdiction – and reversed to calculate interest from the first judgment.

Sitting for the court: Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

(Justice Green not sitting) 09-0039 BIC Pen Corp. v. Janace M. Carter from Matagorda County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Reagan W. Simpson, Austin For cross-petitioner/respondent: Lisa Powell, McAllen Principal issues in this case involving injuries resulting from a child playing with a lighter are (1) whether federal law preempts the manufacturing-defect claim and the causation theory based on it; (20 whether legally sufficient evidence supported causation and a manufacturing defect; and (3) whether legally sufficient evidence supported the jury’s malice finding for exemplary damages. The Court earlier held that federal law by implication preempted a lighter design-defect claim in reversing a judgment for Carter. On remand, the court of appeals affirmed the jury’s manufacturing-defect verdict for Carter, but reversed the punitive-damages award. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-1084 Bison Building Materials Ltd. v. Lloyd K. Aldridge from Harris County and the First District Court of Appeals, Houston For petitioner: Tom Van Arsdel, Houston For respondent: Kurt Arbuckle, Houston The Supreme Court will hear arguments on the principal issue of whether an appeal can be taken from a trial court’s order vacating in part an arbitration award without a rehearing. The principal issue is whether an appeal can be taken from a trial court’s order vacating in part an arbitration award without ordering a rehearing. In this case Aldridge, a Bison employee, moved for arbitration of a damages claim for a work injury under an agreement stipulating all work-related injury claims would be arbitrated but providing that an objection to an arbitration decision could be reviewed by a court. Bison moved to dismiss his claim, arguing that he had waived his right to arbitrate his damages because, after his injury, Aldridge signed a subsequent workplace-injury benefits waiver and release forgoing “the right to file a legal action ... for any and all damages sustained by me because of my injury” for benefits he got from Bison’s plan. Aldridge sued to set aside the arbitration decision. Noting “unanswered questions regarding fair notice and ambiguity of the post-injury waiver agreement, the trial court vacated that part of the award precluding arbitration of the damages claim. In a split decision, the court of appeals dismissed what it called an interlocutory appeal because it had no jurisdiction.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Debra Lehrmann

(Justice Guzman not sitting) 09-0399 BP America Production Co., et al. v. Stanley G. Marshall, et al. from Zapata County and the Fourth District Court of Appeals, San Antonio For petitioner BP America: Thomas R. Phillips, Austin For petitioner Wagner Oil: Pamela Stanton Baron, Austin For respondents Stanley G. Marshall Jr., et al.: Tim Patton, San Antonio For respondents Vaquillas Ranch Co., et al.: David M. Gunn, Houston In this case by mineral interest-holders alleging BP fraudulently continued a lease it had ceased working, the issues are (1) whether the discovery rule tolled limitations; (2) whether BP’s communications with a mineral interest-holder amounted to legal opinion or created a false impression that required full disclosure; (3) whether BP, which leased its production interest, can be required to account for future net profits even though it no longer possesses producing wells; (4) whether a successor lessee to BP’s interest, as co-tenant, can claim title to the mineral interests by adverse possession against the other tenant; and (5) whether BP’s successor to its lease interest can be a bona fide purchaser, if it took title without knowledge of the alleged fraud. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The principal issues in this premises-liability case are (1) whether the trial court erred by admitting spoliation evidence based on the grocer’s retaining a security-video clip showing the plaintiff’s fall and the moments before and after it but not longer, which might have borne on constructive notice of a grease spill; (2) whether the trial court generally erred by instructing the jury on spoliation (and specifically by placing the burden of disproving prejudice on Brookshire); and (3) whether legally sufficient evidence supported the jury’s negligence finding. In this case Aldridge, a former professional football player, asked the see the video of his fall a few days after he slipped at the store. The store refused. After he sued, the store produced eight minutes of what store cameras caught on tape, starting a minute before Aldridge entered the store and ending a minute after he fell. The appeals court affirmed the trial court’s decision to admit the spoliation evidence and its spoliation instruction.

A principal issue in this libel case based on a television report that the Texas Medical Board ordered a physician disciplined is whether Texas recognizes the third party-allegation rule that would shield a publisher or broadcaster from defamation liability if the report is substantially true. Dr. Neely, an Austin neurologist, sued Wilson and her then-employer, KEYE-TV in Austin, after a report that included interviews with two malpractice claimants against Neely and a rendition of the medical board’s agreed order with Neely. The order addressed the doctor’s writing his own refill prescriptions for drugs in lieu of returning to the doctors who prescribed them. The order suspended him for three years, but allowed him to practice on probation with conditions and cited his violation of a rule prohibiting inappropriate prescriptions of “dangerous drugs” and his inability to practice medicine “with reasonable skill and safety to patients, due to mental or physical condition.” The trial court granted summary judgment for Wilson and the station. The court of appeals affirmed, holding that McIlvain v. Jacobs created a third party-allegation rule in Texas and that Neely’s allegations that the broadcast reported false defamatory statements were either substantially true or not defamatory.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

Canyon Regional Water Authority v. Guadalupe-Blanco River Authority from Guadalupe County and the Fourth District Court of Appeals, San Antonio For petitioner: Gregory S. Coleman, Austin For respondent: David P. Blanke, Austin The Supreme Court will hear arguments on the issue of whether 'paramount use' question in water authority's condemnation in public lake. The issue is whether the river authority, the owner of a lake, offered sufficient evidence challenging the water authority's condemnation of part of the lake to require the water authority to show its water need was paramount to the lake's prior public use. In this case, the Guadalupe-Blanco River Authority sued after negotiations broke down on the water authority's plan to build a second water intake on Lake Dunlap near New Braunfels. The river authority argues that the intake interferes with the lake's recreational use. The trial court held that Canyon Regional Water Authority had rights to construct the intake under an existing easement, but the court of appeals reversed, holding that the easement allowed only one intake and that water authority offered no evidence of a paramount public use.

The issue in this negligence case seeking sentimental-value damages for a pet dog mistakenly euthanized is whether intrinsic or sentimental value can be recovered.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0940 Central Ready Mix Concrete Co. Inc. v. Luciano Islas from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg A principal issue is whether a contractor owes any duty for the safety of an independent subcontractor’s employees performing dangerous work. In this case Islas sued Central Ready Mix for injuries he suffered as he cleaned the rotating mixer on one of Central’s cement trucks. Islas, employed by a subcontractor hired by Central to clean the trucks’ mixing drums, was caught as he was climbing out of the mixing drum when a co-worker started the truck and the mixer began turning. A jury determined that Central was 20 percent responsible, but the trial court granted the company’s motion to disregard the verdict. The court of appeals reversed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0223 Centocor Inc. v. Patricia Hamilton and Thomas Hamilton, et al. from Nueces County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Robert M. (Randy) Roach Jr., Houston For respondents/cross-petitioners: Craig T. Enoch, Austin For cross-respondent Michael G. Bullen, M.D.: Thomas F. Nye, Corpus Christi For amici curiae Texas Medical Association, et al.: R. Brent Cooper, Dallas Principal issues are (1) whether the court of appeals erred by discounting the learned-intermediary doctrine when fraud allegations were based on a drug-marketing video shown to patients; (2) whether expert testimony should have been required to assist in establishing that the existing warning was unreasonably dangerous; and (3) whether the product’s side-effects warning can prove causation of one of those effects. In his case the Hamiltons sued after Patricia Hamilton developed lupus-like symptoms from a drug she used to treat her Crohn’s disease. They alleged Centocor, the drug manufacturer, used direct-to-patient advertising that did not include side-effects warnings about symptoms she developed. A jury found Centocor committed fraud and awarded damages, including punitive damages. On review, the appeals court rejected Centocor’s argument that the learned-intermediary doctrine shielded it from liability because Mrs. Hamilton’s prescribing doctor was responsible for warning her about adverse effects. It held the doctrine was defeated when the manufacturer was misleading in a promotional video by omitting potential adverse effects. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issue is whether in a health-care liability case the required preliminary expert assessment must address both direct and vicarious liability theories. In this case the patient sued a temporary staffing agency over a male nurse's alleged inappropriate touching and questioning, claiming Certified EMS, the employer, was vicariously liable for the nurse's conduct and negligent itself in its employee's training and supervision. On an adequacy challenge to expert reports, the court of appeals rejected Certified EMS's objections, reasoning that at least one report was adequate for vicarious liability even though it was inadequate for direct liability.

A principal issue is whether dismissal by nonsuit of a health care-liability claim delays the statutory expert-report deadline. In this case the Lidjis, suing on their son's behalf, nonsuited their claim 116 days after its filing (four days before the expert-report deadline). When they refilled the suit more than two years later, the Lidjis served an expert report on the same day. The Lidjis argue that their nonsuit tolls the deadline for the expert report. The hospital moved to dismiss, contending the deadline for the report passed. The trial court denied the hospital's dismissal motion and the court of appeals affirmed.

A principal issue in this dispute over a third-party administrator's payments to hospitals for services to HMO patients is whether the Texas Prompt Pay Statute requires privity between the hospitals and the health-maintenance organization. Several hospital groups sued Aetna for payment delays after Aetna refused to pay claims by two third-party administrators that went insolvent. In this case the court of appeals affirmed the trial court's summary judgment for Aetna, holding that the prompt-pay law required that the hospitals must have contracted directly with Aetna and not with its delegated claims-processors.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0127 William Chu v. Chong Hui Hong from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Murry B. Cohen, Houston For respondent: G. Stanley Cramb, Bedford The Supreme Court will hear arguments on the issue of whether third party can be liable in tort under Uniform Fraudulent Transfer Act. A principal issue arising from this divorce proceeding is whether an independent tort claim exists against a third party under the Uniform Fraudulent Transfer Act when the alleged misconduct was fraud on the marital community. This case challenges a husband’s sale of a doughnut store without his wife’s consent as part-owner, allegedly with Chu’s help in his capacity as attorney for the buyers. After the sale, the husband transferred the proceeds to Korean relatives before he then filed for divorce. Hong, the ex-wife, sued her ex-husband for divorce and Chu as a third party for fraud on the community estate. Jurors awarded damages for lost value and lost profits for the shop and $1.5 million in punitive damages against Chu. The court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0316 This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

07-0284 City of Dallas v. Kenneth E. Albert, et al. from Collin County and the Fifth District Court of Appeals, Dallas consolidated with 07-0288, City of Dallas v. David S. Martin, et al. For petitioner: Deborah G. Hankinson, Dallas For respondents: Charles W. McGarry, Dallas, and E. Lee Parsley, Austin The principal issues are (1) whether governmental immunity protects the city from a declaratory judgment that could impose a billion-dollar liability for back pay, benefits and interest to Dallas police, firefighters and emergency workers; (2) whether a suit like this, seeking to enforce an ordinance passed by referendum, is exempt from governmental immunity; and (3) whether by withdrawing a counterclaim the city may restore its immunity. Employees sued to declare the effect of a 1979 referendum imposing by ordinance, they argue, minimum salary increases across the board and for breach of contract for the city’s alleged failure to provide those raises. The trial court denied the city’s jurisdictional plea. The court of appeals held that a declaratory-judgment action waives governmental immunity for prospective relief, affirming the trial court in part, but the court reversed the trial court on the city’s immunity on the contract-breach claims. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0931 City of Dallas v. Greg Abbott, Attorney General of Texas from Travis County and the Seventh District Court of Appeals, Amarillo For petitioner: James B. Pinson, Dallas For respondent: James C. Ho, Austin The Supreme Court will hear arguments on whether delay for records clarification postpones 10-day deadline for city to seek public-information ruling by attorney general. The issues are (1) whether the Public Information Act’s 10-day deadline for a government entity to seek an attorney general’s opinion on records disclosure is postponed while the city awaits clarification on the records request and (2) whether the city can be compelled to disclose privileged attorney-client information if the request for the attorney general’s opinion was not submitted by the statutory deadline. In this case the city got two requests for records, one that it sought to clarify and the other resulting from that clarification request. Nine days after the second request, the city asked the attorney general for an opinion on whether certain requested information was covered by the attorney-client privilege and not subject to disclosure. When the attorney general answered that the request included privileged information that had to be disclosed because the city missed the deadline, the city sued the attorney general. The trial court ruled for the attorney general and the court of appeals affirmed, reasoning in part that city did not show a compelling reason for withholding the records. The Court will hear three arguments beginning at 9 a.m. in the Hillcrest Classroom in the Underwood Law Library at Southern Methodist University‘s Dedman School of Law in Dallas. Each side in each case will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

07-0284 City of Dallas v. Kenneth E. Albert, et al. from Collin County and the Fifth District Court of Appeals, Dallas consolidated with 07-0288, City of Dallas v. David S. Martin, et al. For petitioner: Deborah G. Hankinson, Dallas For respondents: Charles W. McGarry, Dallas, and E. Lee Parsley, Austin The principal issues are (1) whether governmental immunity protects the city from a declaratory judgment that could impose a billion-dollar liability for back pay, benefits and interest to Dallas police, firefighters and emergency workers; (2) whether a suit like this, seeking to enforce an ordinance passed by referendum, is exempt from governmental immunity; and (3) whether by withdrawing a counterclaim the city may restore its immunity. Employees sued to declare the effect of a 1979 referendum imposing by ordinance, they argue, minimum salary increases across the board and for breach of contract for the city’s alleged failure to provide those raises. The trial court denied the city’s jurisdictional plea. The court of appeals held that a declaratory-judgment action waives governmental immunity for prospective relief, affirming the trial court in part, but the court reversed the trial court on the city’s immunity on the contract-breach claims. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0257 City of Dallas v. Heather Stewart from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Barbara Rosenberg, Dallas For respondent: Julius S. Staev, Dallas The issue in this takings claim over a house the city demolished as a nuisance is whether res judicata or collateral estoppel attaches to a final determination by a legislatively created, quasi-judicial board. In this case the Urban Rehabilitation Standards Board declared Stewart’s house a nuisance after years of standing vacant and in disrepair. As Stewart appealed the standards board’s nuisance determination to the trial court, the city demolished the house under authority granted by Local Government Code chapters 54 and 214. Stewart then pressed an unconstitutional-takings claim, arguing the city took her property without fair compensation. In response the city pleaded that the takings claim depended on relitigating the standards board’s nuisance finding, but Stewart failed to appeal that specifically to the trial court. After a trial, a jury found the city had unconstitutionally taken Stewart’s property and awarded damages. The trial court rejected the city’s res judicata defense. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0265 City of Dallas v. VSC, LLC from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Charles Estee, Dallas For respondent: James C. Mosser and Alexis F. Steinberg, Dallas For amicus curiae: Bill Davis, Austin Principal issues are (1) whether the vehicle-storage company has a vested property interest in stolen cars police seized from the company’s tow lot and (2) whether the cars’ seizure is a compensable taking under the Texas Constitution. VSC, which operates a storage facility for vehicles towed without owners’ consent, sued over as many as 277 vehicles seized by city police with search warrants for vehicles reported stolen, involved in felonies or with altered identification numbers. VSN claims it lost as much as $250,000 in fees it would have charged the owners for storage and towing. The trial court denied the city’s jurisdictional plea, seeking dismissal, and the court of appeals affirmed for the most part. The appeals court held that the city’s exercise of its police power in this case could be an unconstitutional taking.The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-1031 City of DeSoto v. Justin White from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Amber L. Slayton, Dallas For respondent: Randy Doubrava, Austin The principal issue is whether a hearing examiner had jurisdiction over an appeal from a police officer’s indefinite suspension because the city failed to inform the suspended officer, as required by the Civil Service Act, that choosing a hearing examiner to review his disciplinary action limited his appeal of the examiner’s decision. White sued for reinstatement when the city, in its formal suspension notification, failed to follow the requirement that it inform him of restrictions on appellate issues from a hearing examiner’s decision. He had assistance of counsel when he chose the hearing examination route. The trial court granted him summary judgment and ordered his reinstatement, holding that the notification requirement on the hearing examination procedure deprived the examiner of jurisdiction over the case. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

City of El Paso, et al. v. Lilli M. Heinrich from El Paso County and the Eighth District Court of Appeals, El Paso For petitioners: Eric G. Calhoun, Dallas, and Hadley A. Huchton, El Paso Respondent: Stewart W. Forbes, El Paso The Supreme Court will hear arguments on the issue of whether immunity protects pension board sued over recalculated pension. The principal issues in this lawsuit to determine a widow's pension benefits are (1) whether the city and pension-benefits board retain immunity if the suit essentially is for money damages and (2) whether officials sued as individuals had governmental or official immunity. Heinrich sued after the pension board reduced by a third the pension she received after her police officer husband's death. That reflected the board's calculation for benefits that, it contended, should have been for her son under bylaws in effect when her husband died. The board initially approved 100 percent of the benefits to Heinrich, then determined in the later recalculation that the full-benefits provision to a spouse became effective after Heinrich's husband died. At first she sued for an amount she alleged was owed, but later pleaded the suit as one to declare her rights to the pension as originally calculated. The trial court denied the board's immunity defense. The court of appeals affirmed.

The issue is whether a city's moratorium on sewer connections should apply to unsold lots in a platted development the city approved before the moratorium. In this case BMTP Holdings, the developer, sued to prevent the city from halting sewer connections to seven lots in two approved subdivisions. BMTP argues that Local Government Code section 212.131, defining property development for a city's moratorium such as this one, applies only when all development plans have not been completed. The trial court denied BMTP's summary-judgment motion. The court of appeals reversed the city's summary judgment, holding that section 212.131 excluded from the moratorium a subdivision that had been platted and approved.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

11-0367 City of North Richland Hills v. Laura Friend and Luther Friend from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Fredrick Wayne “Fritz” Quast, Fort Worth For respondents: Darrell L. Keith, Fort Worth For amicus curiae State of Texas: Rance L. Craft, Austin The principal issues are (1) whether the city waived its immunity when city water-park staff responded to a 12-year-old girl’s heart attack with resuscitation equipment that did not include heart defibrillators available in the park and (2) whether, as in this case, the city and its employees are sued at the same time, the Texas Tort Claims Act bars suit against either or whether the city consented to suit by waiving its immunity under the act. The Friends sued the city after their daughter died. When she collapsed, employees at the city-owned park did not use available defibrillators on her. The Friends argue the city waived its immunity under the theory that the city employees misused tangible personal property because the resuscitation equipment did not contain an integral safety component. The trial court denied the city’s jurisdictional plea. The appeals court affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0948 City of Pasadena v. Richard Smith from Harris County and the First District Court of Appeals, Houston On rehearing For petitioner: Kevin D. Jewell, Houston For respondent: Heidi L. Widell, San Antonio For amicus curiae, State of Texas: James C. Ho, Austin The Supreme Court will hear arguments on whether a city has a right to appeal a hearing officer’s decision dismissing a disciplinary proceeding when the basis for the examiner’s decision was mistaken law. The principal issue is whether a city has a right to appeal a hearing officer’s decision dismissing a disciplinary proceeding when the basis for the decision was mistaken law. In this case Smith, a Pasadena police officer, appealed an indefinite suspension to a hearing examiner. State law provides for an appeal from a civil service commission decision, but not from a hearing examiner’s decision. The trial court dismissed the appeal on Smith’s jurisdictional plea. The court of appeals affirmed. In this Court, the city argues that the hearing examiner’s decision can be appealed under a provision allowing for an appeal when the examiner has exceeded her jurisdiction – and that a mistake of law is exceeding jurisdiction. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0121 City of Waco v. Debra Kirwan from McLennan County and the 10th District Court of Appeals, Waco For petitioner: Charles D. Olson, Waco For respondent: Michael Singley, Austin For amicus curiae State of Texas: David S. Morales, Austin The principal issues in this case involving a death in a fall at a city park are (1) whether the Recreational Use Statute allows a premises-defect claim based on a natural condition and (2) whether the plaintiff presented a genuine issue of material fact regarding the city’s gross negligence. Kirwan’s son died when he fell 60 feet as a rock precipice gave way under him. To get to the cliff, Kirwan’s son had to pass a stone wall across a path and a warning sign. Under the Recreational Use Statute, the landowner – in this case, Waco – does not owe a duty of care greater than that owed a trespasser for inherent natural dangers. Kirwan argues the statute’s exception for gross negligence applies to a premises defect for a naturally occurring condition and points to a graduate student’s report offered to the city that warned of falling rock dangers to walkers on paths below limestone cliffs at the park as evidence of the city’s knowledge of the danger and its gross negligence in failing to fix the dangers. Waco, however, argues that gross negligence may only be established by showing a landowner created a condition that a recreational user would not reasonably expect on the property. The trial court granted to city’s jurisdictional plea, but the court of appeals reversed, holding that the statute did not prohibit a premise defect based on natural conditions. The appeals court also held that Kirwan raised a material fact issue to support her gross-negligence claim. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0089 City of Waco v. Robert Lopez from Limestone County and the 10th District Court of Appeals, Waco For petitioner: Enid Wade, Waco For respondent: R. John Cullar, Waco The Supreme Court will hear arguments on the issue of whether Commission on Human Rights Act is exclusive remedy for retaliation claim. In this employment-discrimination case, the principal issues are (1) whether the Commission on Human Rights Act offers the exclusive remedy for a retaliation claim; (2) whether the city’s equal employment-opportunity policy is a “law” under the state Whistleblower Act; (3) whether the act only applies to reporting law violations detrimental to the public good; and (4) whether an alleged equal-employment policy violation was reported in good faith to an appropriate law-enforcement agency. Lopez was fired after alleged misuse of a city vehicle and claims the firing was in response to his age- and race-discrimination complaint filed months earlier with the city’s equal-employment opportunity officer. The city answered Lopez’s Whistleblower Act suit with a jurisdictional plea and summary-judgment motion, which the trial court denied. The court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0485 City of Waco v. Larry Kelley from McLennan County and the 10th District Court of Appeals, Waco For petitioner: David W. Holman, Houston For respondent: LaNelle L. McNamara, Waco, and Richard W. Carter, Fort Worth The Supreme Court will hear arguments of whether hearing examiner exceeded his authority by ordering a fired police officer to be reinstated at reduced rank. A principal issue is whether state law allows a hearing examiner to order temporary suspension and reduction in rank of an assistant police chief indefinitely suspended after a drunken-driving arrest. In this case Kelley had been indefinitely suspended after his arrest in 2001. Waco argues that the hearing examiner reviewing the assistant police chief’s discipline violated Texas Local Government Code section 143.053(e) because the examiner was limited, after finding the allegation to be true, to upholding Kelley’s firing. Section 143.053(e) gives hearing examiners three options in reviewing a police officer’s suspension: dismissal, temporary suspension or restoring the officer to previous rank. The trial court upheld the examiner’s decision to suspend Kelley temporarily and to reinstate him as a sergeant. In a split decision, the appeals court reinstated Kelley as a commander, a higher rank than the examiner decided, but a rank lower than assistant chief.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0688 CMH Homes Inc., et al. v. Adam Perez from Duval County and the Fourth District Court of Appeals, San Antonio For petitioners: Mr. Scott A. Brister, Austin For respondent: Mr. Brendan McBride, San Antonio The principal issue is whether a trial court order appointing an arbitrator in lieu of the parties’ impasse is subject to interlocutory review under Civil Practices and Remedies Code . If not, counsel for CMH Homes argues that the interlocutory appeal should be considered a mandamus petition, inviting the Court to adopt the concurrence in In re D. Wilson Construction Co. (at 784, suggesting an improper appeal should be treated as a mandamus petition). This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The principal issues in this case brought against a tenant operating a coin-operated laundry in an apartment complex are (1) whether the tenant is entitled to limited possession until evicted and whether it's liable in tort for wrongful possession and, if so, (2) whether the continuing-tort doctrine tolls the statutory limitations for alleged torts. In this case Aspenwood bought an apartment complex in foreclosure and tried to evict Coinmach's laundry facilities, but Coinmach ultimately won on appeal. After several years during which Coinmach paid rent (Aspenwood never cashed the checks) Aspenwood sued in district court for tort damages for trespass and for interfering with a contract Aspenwood had with another laundry-machine company and claimed damages to when Coinmach's lease ended with the foreclosure sale under the continuing-tort doctrine. The trial court ruled Coinmach was a tenant at sufferance and had a right to possession until judicially evicted and granted summary judgment for the laundry operator. The court of appeals agreed that Coinmach was a tenant at sufferance, but held that Coinmach did not have a possessory interest in the leasehold and that Aspenwood could sue for trespass back to when the lease ended and for tortious interference with a contract.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0372 Columbia Rio Grande Healthcare L.P. v. Alice H. Hawley and James A. Hawley from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Charles Watson, Austin For respondents: Darrin Mitchell Walker, Kingwood The Supreme Court will hear arguments on among principal issues in this medical-malpractice and wrongful death case against a hospital are (1) whether the trial court erred by refusing an instruction on new and independent cause when a pathology report diagnosed cancer that the patient did not receive for almost a year; (2) whether the trial court erred by refusing a “lost chance” instruction when conflicting evidence assessed the patient’s survival chances; and (3) whether by failing to instruct the jury to disregard the independent pathologist’s negligence the trial court commingled valid and invalid liability theories. The Hawleys sued the hospital, claiming the hospital was at fault for the pathology report’s delay and that when she learned of the cancer after it became untreatable. She died while the case was on appeal. The trial court refused instructions on new and independent cause – that the doctors’ delay in reading the pathology report caused any delay in the prospect of treatment; on “lost chance” – that the delay did not harm her because her chances of survival might have been less than 50 percent; and on not taking account of the pathologist’s possible negligence as negligence by the hospital, because the pathologist worked for an independent contractor, not the hospital. The court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0481 Susan Combs and Greg Abbott v. Texas Entertainment Association Inc. and Karpod Inc. from Travis County and the Third District Court of Appeals, Austin For petitioner: James C. Ho, Austin For respondent: Craig T. Enoch, Austin The issue is whether the First Amendment free-speech clause prohibits the state from collecting the so-called pole tax on each patron at clubs, restaurants or bars serving alcohol with live nude entertainment. In this lawsuit, the trial court declared the $5 tax unconstitutional and permanently enjoined the state comptroller from collecting it. The court of appeals affirmed in a split decision, holding that the tax was a content-based limitation on protected speech. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

06-1018 D.R. Horton-Texas Ltd. v. Markel International Insurance Co. Ltd. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Robert B. Gilbreath, Dallas For respondent: Les Pickett, Houston A principal issue in this insurance dispute over an alleged construction defect causing mold damage is whether a duty to indemnify can exist when a duty to defend does not, based on pleading allegations. After settling with the complaining homeowners, D.R. Horton sued Markel because Markel refused to defend it in the homeowners' suit or to indemnify it as an "additional insured" under Markel's policy covering a responsible subcontractor. Markel moved for summary judgment, claiming the homeowners did not name the subcontractor in their lawsuit and arguing that D.R. Horton could not show the subcontractor's responsible without extrinsic evidence. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338 from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Jeffrey C. Londa, Houston For respondent: Hal K. Gillespie, Dallas The Supreme Court will hear arguments on the issue of whether preemption issue involving suit for pay against Dallas mass transit agency. The issue is whether federal law preempts the transit authority's immunity in a suit seeking money damages to enforce a grievance resolution when federal money to the transit agency is conditioned on "fair and equitable arrangements" for transit employees. In this case the union alleges that DART, the transit agency, breached an agreement for a pay increase for DART employees. The trial court denied the transit agency's jurisdictional plea, based on governmental immunity. The court of appeals held that the fair-and-equitable-arrangements language in the federal Urban Mass Transportation Act preempted state immunity.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0162 Donald Davis v. Fisk Electric Co., et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Renuka Jain, Houston For respondents: J. Cary Gray, Houston In this wrongful-termination case alleging the firing was racially motivated, the principal issues are (1) whether the trial court erred by overruling so-called Batson challenges to peremptory strikes against five of six potential jurors who were black and (2) whether any difference exists between striking black potential jurors for race, which Batson prohibits, and striking them for acknowledging they had been victims of discrimination or because they reacted in voir dire to a racial epithet likely to be in trial testimony. For four of the five strikes, counsel offered as proof unsworn statements about nonverbal occurrences in the courtroom. The trial court overruled Davis’s objections to the strikes. The court of appeals affirmed, holding in part that the questions about discrimination and the racial epithet were asked of all potential jurors and that Davis did not dispute Fisk’s characterizations of nonverbal occurrences in the courtroom but only noted that no record evidence supported them.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0272 Dealers Electric Supply Co. v. Scoggins Construction Co. Inc. and Bill R. Scoggins from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Ben L. Aderholt, Houston For respondents: William F. Kimball, Harlingen For amici curiae American Subcontractors Association Inc. and Houston Hispanic Chamber of Commerce: J. Brett Busby, Houston The principal issue is whether the McGregor Act, prohibiting liens against a public building and providing for suit against principals and sureties over payment bonds, is an exclusive remedy to recover for credit extended to a subcontractor that abandoned an elementary school construction project. In this case Dealers sued for payment on $78,000 worth of materials an electrical subcontractor got under a joint checking account before abandoning the construction and absconding with the materials. At first Dealers sued the subcontractor, Scoggins and two bond companies from which Scoggins bought bonds to meet its McGregor Act obligations. Then when Dealers dropped the suits against the bond companies because it missed statutory notice deadlines, it continued the suit for payment under the Texas Construction Trust Fund Act and under the joint checking account. The trial court determined that Scoggins owed Dealers almost $136,000 in damages, costs and interest. The court of appeals reversed, holding that the McGregor Act was Dealers’ exclusive remedy, which it lost for failure to give statutory notice to the bond companies. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-1026 Louis M. Ditta v. Susan C. Conte and Joseph P. Conte Jr. from Harris County and the First District Court of Appeals, Houston For petitioner: Michael J. Cenatiempo and Thomas C. Wright, Houston For respondents: Susan Conte: Karen L. Watkins, Austin Principal issues in this action to remove a trustee is whether a guardian’s appointment ends the statutory delay on a lawsuit brought for a disabled trust beneficiary or whether limitations remain tolled under the discovery rule. In this case Ditta, the appointed guardian, sought to remove Susan Conte as trustee of a trust benefiting her mother, who was declared incapacitated in1997. Ditta filed his action after an accounting, ordered after his appointment, that showed Susan Conte and her brother had taken money from the trust for their personal expenses. After a final accounting in 2000, the probate court ordered Susan Conte to repay the trust but only if her mother needed the money. Then in 2004 the guardian sued to remove Susan Conte as trustee, claiming her discord with her brother jeopardized her trustee duties, her use of trust funds had been improper and her debt to the trust created a conflict of interest. The trial court removed her as trustee and modified trust terms to permit a bank to be trustee, finding that she and her brother had spent money from the trust they should not have. On review, the court of appeals reversed, holding that Ditta’s lawsuit to remove Conte as trustee was barred by the statute of limitations. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0995 Dr. Erwin Cruz v. Andrews Restoration Inc. and Rudy Martinez from Dallas County and the 5th District Court of Appeals, Dallas For petitioner: Jennifer G. Martin, Addison For cross-respondent Chubb Lloyds Insurance Co. of Texas: Russell W. Schell, Addison For respondent/cross-petitioner: Shawn M. McCaskill, Dallas Two principal issues are (1) whether “restore” as used in the deceptive-trade practices statute incorporates equitable rescission (requiring surrendering benefits under a contract) and (2) whether the main-purpose doctrine will allow an oral promise to pay another’s debt to be enforced despite the statute of frauds. In this case Andrews Restoration (doing business as Protech Services) sued Cruz and his insurer, Chubb Lloyds, for more than $700,000 for Protech’s work to control humidity – and mold growth – in Cruz’s house. Cruz initially hired Protech to repair a water leak and, after mold was discovered, worked to reduce the mold growth in a damages-mediation effort Cruz ordered while Chubb Lloyds determined whether to declare the house a loss. Andrews Restoration alleged in part breach of an oral contract by Chubb Lloyds to pay for the mold remediation and also sued Cruz for breach of a written contract and to foreclose on liens against the property. Cruz counterclaimed against Andrews for deceptive-trade practices and for rescission of any contract with Protech. Chubb Lloyds counterclaimed for common-law fraud and insurance fraud. In summary-judgment proceedings the court determined Protech violated the Deceptive Trade Practices Act by omitting contract language as to Cruz and could not collect from Chubb Lloyds on an implied contract for what Protech spent to stop the spreading mold or for alleged fraud. A jury then found that Cruz was not damaged by the omitted contract language that violated the DTPA and decided the insurer breached an oral agreement with Protech to stem the mold growth. It awarded Protech the amount of its unpaid bills, just over $705,000. The court of appeals reversed the award against Chubb Lloyds, holding that the insurer’s promise, if any, to pay for the mold remediation was not supported by consideration that would have satisfied the main-purpose exception to the statute of frauds’ requirement that a contract to pay debts owed by another must be in writing. The appeals court also rejected Cruz’s argument that he should have been awarded the more than $1 million he spent for Protech’s work on his contention that would “restore” him under the deceptive-trade practices statute. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0043 Dynegy Midstream Services, Ltd. v. Apache Corp. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Mike A. Hatchell. Austin For cross-petitioner/respondent: Geoffrey L. Harrison, Houston The Supreme Court will hear arguments on (1) whether the court of appeals erred by holding that the gas processor breached its percentage-of-proceeds contract by deducting “unaccounted-for” gas from what Apache was paid and (2) whether expert testimony may prove breach of an unambiguous percentage-of-proceeds contract by establishing custom for processors to pay for unaccounted-for gas even though such gas is not sold and does not generate proceeds. Principal issues are (1) whether the court of appeals erred by holding that the gas processor breached its percentage-of-proceeds contract by deducting “unaccounted-for” gas from what the producer was paid and (2) whether expert testimony may prove breach of an unambiguous percentage-of-proceeds contract by establishing custom for processors to pay for unaccounted-for gas even though such gas is not sold and does not generate proceeds. Apache sued because it claimed audits showed deduction for unaccounted-for gas in what Dynergy paid Apache under contracts that did not mention unaccounted-for gas. Jurors found for Apache, awarding more than $1.5 million, but the trial court rendered judgment notwithstanding the verdict for Dynergy. It also declared judgment for Apache on payments for future “field condensate” and awarded Apache $75,000 in attorneys fees. The court of appeals reversed, for the most part reinstating the jury’s findings for Apache. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0135 East Texas Salt Water Disposal Co. Inc. v. Richard Leon Werline from Gregg County and the Sixth District Court of Appeals, Texarkana For petitioner: Greg Smith, Tyler For respondent: Gregory J. Wright, Longview The Supreme Court will hear arguments on the issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing give the court of appeals interlocutory jurisdiction. The issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing gives the court of appeals interlocutory jurisdiction. In this case the company sued to vacate an arbitrator’s award of two years’ salary, attorney’s fees and arbitration costs to an employee in a dispute over his employment agreement. The trial court vacated the arbitration award, ruling that it resulted from evident partiality, willful misconduct and gross mistake. On appeal, the court reversed and rendered judgment confirming the award, holding that the Texas Arbitration Act allows appellate review of a trial court order denying confirmation of an arbitration award.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0667 Eberhard Samlowski, M.D. v. Carol Wooten from Johnson County and the 10th District Court of Appeals, Waco For petitioner: Kay Ellington, Dallas For respondent: Barney L. McCoy, Houston The principal issue is whether a trial court must grant a 30-day extension to cure a deficient but arguably curable expert report in a medical-malpractice suit. In this case the trial court dismissed the suit with prejudice – barring refiling the suit – because the expert report did not adequately show how the alleged negligence proximately caused Wooten’s injuries. Wooten alleged Samlowski’s initial inaccurate diagnosis led to a second surgery and complications. The court determined the report was not a good-faith effort to comply with the expert-report requirement. The appeals court reversed to allow an extension to cure the report, holding that the expert report was not a good-faith effort but was a good-faith attempt to comply with the report requirement. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0911 Edwards Aquifer Authority, et al. v. Chemical Lime Ltd. from Comal County and the Third District Court of Appeals, Austin For petitioners: Mike Hatchell, Austin For respondent: Robert B. Gilbreath, Dallas The Supreme Court will hear arguments of whether act declared constitutional became effective when opinion was issued or when mandate was. The principal issue is whether the Edwards Aquifer Act became effective when the Court issued its 1996 opinion declaring the act constitutional in Barshop v. Medina County Underground Water Conservation District or when it issued the Barshop mandate. Chemical Lime challenged the authority’s denial of Chemical Lime’s water permit as an existing user after the authority ruled the application had been submitted too late. Alternatively, Chemical Lime argues, if it missed the deadline to file, it substantially complied with the deadline. In this case the Edwards Aquifer Authority rejected the company’s historical water use four years after the company filed it. The company filed its application 18 days after a deadline the authority set after the Court’s Barshop decision. The trial court determined the December 30, 1996, deadline was invalid and corrected it to mid-February 1997. The Austin Court of Appeals in this case held that the Edwards Aquifer Act became effective six months after the mandate issued, not six months after the Barshop opinion. The San Antonio Court of Appeals held in a separate case that the deadline properly was set from when the opinion issued.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0490 El Apple I, Ltd. v. Myriam Olivas from El Paso County and the Eighth District Court of Appeals, El Paso For petitioner: Joseph L. Hood Jr., El Paso For respondent: John P. Mobbs, El Paso A principal issue in this discrimination and retaliation suit is whether state or federal law governs attorneys-fees calculations under a state act enacted to effect a federal discrimination statute. Other issues challenge differing features of applying lodestar methods for calculating fees. In this case Olivas sued for sex discrimination and retaliation. A jury found her employer did not discriminate against her based on her gender, but that her discrimination complaint was a motivating factor in its creating a hostile-work environment. The trial court awarded attorneys fees supported by her lawyers’ affidavits and not billing records, as federal law requires, and did not require the fees to break down how much time was spent separately on the discrimination and retaliation claims. The court of appeals affirmed, holding in part that the affidavits were legally sufficient to support the trial court’s fees award and that work on the claims was too intertwined to separate time spent on one versus time spent on the other. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

A principal issue in this case, pleaded as an inverse-condemnation claim by a developer that deeded property for a community park with a buy-back provision if the park were not developed, is whether the developer retained a property interest sufficient to support inverse condemnation because the city built a library on the land instead. When El Dorado sued, the city asserted the trial court did not have jurisdiction because El Dorado sought contract damages but did not plead a contract claim and lacked standing because it did not have a property interest in the land. The trial court granted the city's jurisdictional plea and the appeals court affirmed, holding that inverse condemnation traditionally requires a property interest and that El Dorado seeks compensation for a right to repurchase property under a contract.

The principal issues are (1) whether the state, enjoined in an earlier appeal from how it calculated Medicaid reimbursements to the hospital district, must refigure reimbursement for the fiscal year before the injunction issued and (2) whether the trial court's injunction covering previous years was additional, retroactive relief beyond the Supreme Court's previous judgment and barred by sovereign immunity. In this case hospital districts challenged what they alleged was an invalid rule that limited the base calculation for Medicaid reimbursement rates. The districts argue in part that the Supreme Court's holding and injunction in an earlier appeal in this case requires the commission to recalculate rates going back several years because they were founded on a void rule. The commission counters that the injunction, in 2008, applied only prospectively. The trial court ordered rate recalculations for fiscal years back to 2002. The appeals court reversed for the years 2002 through 2007. After the trial court's ruling, an administrative law judge granted recalculated reimbursement for the 2010 fiscal year but determined no authority supported recalculation for previous years.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0648 El Paso Field Services L.P. and Gulfterra South Texas L.P. v. MasTec North America Inc., et al. from Harris County and the First District Court of Appeals, Houston For petitioners: Murray Fogler and David M. Gunn, Houston For respondents: Kevin Dubose, Houston The issues in this dispute over alleged unforeseen costs in a pipeline-replacement project are (1) whether the court of appeals correctly ruled that El Paso’s contract with MasTec allocated risk of “foreign crossings” to El Paso and (2) whether the appeals court correctly applied federal common law instead of Texas common law. In this case MasTec sued for additional costs it encountered to work around and through other pipelines and obstructions for the new pipeline it contracted with El Paso to build. In the contract El Paso stated it would use due diligence to disclose such foreign crossings to MasTec, but its alignment sheets identified 250 and MasTec claimed it encountered perhaps 750. The contract specified that MasTec would assume all risks “notwithstanding” El Paso’s representations. A jury awarded additional costs to MasTec, but the trial court rendered judgment for El Paso notwithstanding the jury’s verdict. The court of appeals reversed, holding that under a U.S. Supreme Court decision risks were the owner’s responsibility from defective specifications that the owner was better able to determine. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

11-0059 El Paso Marketing L.P. v. Wolf Hollow I L.P from Harris County and the 14th District Court of Appeals, Houston For petitioners: D. Mitchell McFarland and S. Shawn Stephens, Houston For respondent: Solace Kirkland, Houston A principal issue is whether contract remedies preclude a power-plant owner’s negligence claim for damage from gas-delivery interruptions and contaminated gas. The plant owner, Wolf Hollow, contends it had no contract obligations because it assigned its gas-delivery contract to its agent, El Paso Marketing, its gas supplier. El Paso assumed the gas-delivery contract Wolf Hollow had with Enterprise, a pipeline company. Both the assigned contract and Wolf Hollow’s supply contract with El Paso had clauses waiving consequential damages resulting from interruptions and problems with gas quality. El Paso sued Wolf Hollow to declare it had no liability and brought Enterprise into the suit as a third-party defendant. Wolf Hollow then sued Enterprise for negligently causing the gas-supply interruptions that forced Wolf Hollow to buy replacement power and for negligently delivering contaminated gas that damaged its plant. The trial court granted El Paso and Enterprise summary judgment. The court of appeals affirmed in part, but remanded Wolf Hollow’s negligence claim against Enterprise. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0950 Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC from Marion County and the Sixth District Court of Appeals, Texarkana For petitioner: Stephen G. Tipps, Houston For respondent: Glenn Sodd, Corsicana The principal issues in this condemnation-valuation dispute involving land on which a gas-processing plant exists are (1) whether testimony by the landowner’s valuation expert violates the value-to-the-taker rule, that is, assessing the land value with the existing plant and easements instead of its value as rural residential property without those improvements and (2) whether the expert testimony violated the project-enhancement rule that precludes valuing for condemnation purposes the property as it has been enhanced. In this case Enbridge Pipelines took over an affiliate’s lease of Avinger Timber’s land used for the processing plant. When Avinger and Enbridge failed to agree on renewal terms, Enbridge, as a pipeline company with condemnation power, petitioned to take the land. In the valuation trial, the court denied the pipeline’s challenge to Avinger’s expert, who assessed value based on factors including the existing plant, the pipelines that connected to it and how much Enbridge would pay if the lease terminated and it had to remove the plant and other improvements. The court of appeals affirmed the trial court’s decision to accept the Avinger expert’s testimony and reject Enbridge’s. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0272 Entergy Gulf States Inc. v. John Summers from Jefferson County and the Ninth District Court of Appeals, Beaumont For petitioner: Jacqueline M. Stroh, San Antonio For respondent: Collyn A. Peddie, Houston The Supreme Court will hear arguments on whether a premises owner can be a contractor for workers comp purposes. The issue is whether a premises owner who hires an independent contractor and provides workers-compensation insurance for the contractor’s employees can be a “statutory employer” for workers-comp purposes. Designation as a statutory employer would protect the premises owner from a negligence suit by an injured employee. In this case Summers, hired by a company to work at Entergy’s plant, sued Entergy for negligence for on-the-job injuries. Summers’ employer worked under a contract with Entergy that labeled it an “independent contractor” but provided also that Entergy would not be precluded from raising the standard workers comp defense. The company’s employees would be considered Entergy’s employees, eligible for workers compensation and precluded from suing for negligence. In a later provision Entergy agreed to provide workers comp coverage. The trial court granted summary judgment for Entergy on the coverage issue. But the court of appeals reversed, holding that under the workers comp statute a premises owner could not be a general contractor. The Court decided this case in August 2007, holding that a change in the workers comp law despite its label as a recodification without substantive change allowed a premises owner to be a general contractor. The Court granted rehearing of that decision. The Court will hear three arguments beginning at 9 a.m. in the Hillcrest Classroom in the Underwood Law Library at Southern Methodist University‘s Dedman School of Law in Dallas. Each side in each case will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issues are (1) whether Texas law presumes in a suit filed in Texas involving personal injury or death in another state that the place of injury governs which state's law applies and, if so, (2) whether factors determining the most-significant relationship favor Mississippi's more stringent compensatory-damages caps instead of Texas'. In this interlocutory appeal the defendants argue that the trial court erred by applying Texas law to damages incurred or suffered by mostly Mississippi residents from a rural Mississippi pipeline explosion. The appeals court affirmed the choice of Texas law.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0283 Christopher N. Epps and Laura L. Epps v. Bruce Fowler Jr. and Stephanie L. Fowler from Williamson County and the Third District Court of Appeals, Austin For petitioners: Mr. N. West Short, Georgetown For respondents: Mr. Frank B. Lyon, Austin In this case involving the plaintiffs’ dismissal of deceptive trade-practices claims by non-suiting them, the issues are (1) whether the defendant is entitled to contractual attorneys fees as the prevailing party and (2) whether the appeals court should have remanded instead of rendering judgment to allow the defendants to press a reserved sanctions motion. When the Fowlers sued over an alleged foundation defect in the house the Eppses sold them, the Eppses denied the allegations and claimed their attorneys fees, based on the home-sale contract. The Fowlers non-suited their claims, but the Eppses proceeded to trial on the fees issue and won almost $23,000. The court of appeals rendered judgment that the Eppses take nothing. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

07-1042 ERI Consulting Engineers Inc. and Larry G. Snodgrass v. Mark Swinnea, et al. from Smith County and the 12th District Court of Appeals, Tyler For petitioners: Sarah B. Duncan, Austin For respondents: Greg Smith, Tyler In this case principal issues are (1) whether disgorgement and forfeiture may remedy a breach of fiduciary duty in a case without fees; (2) whether the court of appeals erred in finding no evidence supported the trial court’s actual-damages award; and (3) whether a defendant company incorporated after the alleged fiduciary breach may be jointly and severally liable for damages from that breach. Snodgrass and ERI, an asbestos-removal consulting company, sued Swinnea, a former partner with Snodgrass in ERI. The suit alleged Swinnea helped his wife set up an asbestos-abatement company that competed with ERI’s clients. Swinnea agreed not to work for and not compete with ERI when he sold Snodgrass his interest in ERI. After a bench trial, the trial court found Swinnea breached his fiduciary duty and induced the buyout by fraud. The court of appeals reversed, in part holding that disgorgement and forfeiture cannot be a fiduciary-breach remedy in a case without fees involved. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0420 Esperanza Andrade, Secretary of State v. NAACP of Austin, et al. from Travis County and the Third District Court of Appeals, Austin For petitioner: Kristofer S. Monson, Austin For respondents: Tom Herman, Austin In this challenge to the secretary of state’s electronic-voting-machine certification for Travis County’s use, the principal issues are (1) whether the plaintiffs have standing by showing a concrete injury and, if so, (2) whether their allegations of election law and state constitutional violations waive sovereign immunity either under or for injunctive and declaratory relief against a state official acting without authority. In this case the NAACP, representing the voting rights of its Travis County members; a former attorney general candidate; and Travis County voters allege voting-rights violations because they contend the secretary of state certified electronic-voting machines that could not be audited. The trial court ruled all plaintiffs had standing and the court of appeals affirmed, with one dissent. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-1030 Zurich American Insurance Co., et al. v. Nokia Inc. consolidated with 06-1040 Federal Insurance Co. v. Samsung Electronics America, et al. and 07-0140 Trinity Universal Insurance Co. v. Cellular One Group all from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Joseph R. Knight, Austin; Russell McMains, Corpus Christi; and Kirk C. Chamberlin, Los Angeles For respondents: Eric Mayer, Houston, and Charles L. Perry, Dallas The Supreme Court will hear arguments on the issue of whether bodily injury includes harm to human cells allegedly caused by cell-phone radiation. The principal issue common to all three petitions is whether insurers have a duty to defend or indemnify cellular-telephone manufacturers from class lawsuits that allege human-cell injury from cell phone radio-frequency radiation but do not claim “individual issues of injury.” These three cases arise from six class actions that allege biological cell injury to cellular phone users who talk on their phones without headsets. By declaratory judgment or on summary-judgment motions, the insurers argued that they have no duty to defend in part because the underlying suits for the most part alleged no “bodily” injury as that term is normally used. In two of the cases the trial courts ruled in the insurers’ favor and in the third the trial court issued a judgment for the plaintiffs. The court of appeals held that insurers had a duty to defend against claims alleging cell injuries.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0541 First American Title Insurance Co., et al. v. Comptroller of Public Accounts, et al. from Travis County and the Third District Court of Appeals, Austin For petitioners: Steven Reed, Washington, D.C. For respondents: Christine Monzingo, Austin The principal issue is whether the comptroller’s interpretation of Texas’ “retaliatory” tax statute for premiums paid by out-of-state title-insurance companies violates federal and state equal-protection guaranties. Under the comptroller’s recent interpretation of the law – which allows the state to tax at a rate equal to another state’s higher tax on Texas title-insurance companies doing business there – Texas assesses the retaliatory rate based on how in-state insurers and agents divide the proceeds from title-insurance premiums. In Texas, by state law, insurers get 15 percent of the premiums paid and agents take 85 percent. Texas assumes insurers and agents divide the premium tax burden by the same ratio – 15 percent of the tax paid by the company, 85 percent by the agent, even if agents and insurers decide differently. The two out-of-state title insurers challenging this assessment argue that Texas charged them a retaliatory tax equal to 85 percent of the premium rate because their home states did not deem the division of the tax burden as Texas does. The companies argue in their challenge that the comptroller’s assessment actually leads to Texas charging a retaliatory tax when the basis for one – higher premium tax rates in another state – may not exist and, in any case, would be higher than the home states’. The trial court held for the comptroller and the court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

05-0661 FKM Partnership Ltd. v. University of Houston Board of Regents from Harris County and the 14th District Court of Appeals, Houston In this condemnation case the principal issues are (1) whether remand is proper to allow the university to prove necessity in a condemnation proceeding and (2) whether the university must pay fees, expenses and temporary-possession damages when its amended condemnation petition proposes taking less property. FKM Partnership moved to dismiss the university’s amended condemnation petition, filed after special commissioners awarded damages, because the university’s new plans to take less property altered the subject matter of its original petition that the special commissioners had considered. The trial court dismissed the university’s suit and awarded FKM fees, expenses and temporary damages for the university’s possession of the property. The court of appeals reversed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0875 Ford Motor Co. v. Ezequiel Castillo, et al. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Craig A. Morgan, Austin For respondents: Roger W. Hughes, Harlingen The Supreme Court will hear arguments on whether summary judgment for contract breach was proper to enforce settlement. In this case involving allegations of a rogue juror, the principal issues are (1) whether the trial court erred by granting summary judgment on a settlement agreement without independent breach-of-contract pleadings and (2) whether the trial court erred by refusing additional discovery on jury misconduct allegations. Castillo and Ford promptly settled Castillo’s personal-injury suit, alleging an accident caused by Ford’s vehicle design defects, after the presiding juror sent a note to the judge asking what the limit on damages was. After the trial court dismissed the jury, Ford contended jurors told its lawyers that the presiding juror sent the note on her own and that the jury as a whole was leaning in Ford’s favor. The trial court denied Ford’s later motion to set aside the settlement agreement, based on jury misconduct or mutual mistake, or both, finding neither mutual mistake nor jury misconduct and ordered payment according to the agreement. When Ford did not pay, Castillo moved for summary judgment for breach of the settlement agreement. The trial court granted the motion. In a split decision, the court of appeals affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0953 Ford Motor Co. v. Richard H. Garcia from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Michael Eady, Austin For respondent: Isaac Tawil, McAllen The principal issues are whether the trial court abused its discretion by awarding fees to a guardian ad litem for work allegedly outside the scope of his appointment or relied on insufficient evidence in its award. Ford appealed Garcia’s $28,200 award for his appointment as a guardian ad litem. The trial court appointed him to protect the interests of a man in a settlement by Ford with the man, who suffered traumatic brain injury, and his wife. Ford argues the guardian ad litem billed for review of litigation documents and other work that exceeded his need to assure the injured man’s interests in a proposed settlement. Ford also argued the guardian’s invoice did not specify how much time was spent on his review or how much was spent by his staff. The court of appeals affirmed the trial court’s award of Garcia’s fee. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0178 Forest Oil Corp. and Daniel B. Worden v. James Argyle McAllen, et al. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Geoffrey L. Harrison, Houston For respondents: Craig T. Enoch and David Morris, Austin The Supreme Court will hear arguments on the issue of whether arbitration clause in settlement bars. The principal issues are (1) whether a disclaimer in a settlement contract – that no other representations were made – bars a claim that an arbitration clause in the settlement was fraudulently induced; (2) whether reliance on a representation contrary to the contracts was justified; and (3) whether reliance on a representation during settlement negotiations was justified. In this case McAllen sued for personal injuries and for death of an endangered rhinoceros that allegedly resulted from radioactive pipe that Forest Oil had used on McAllen’s property and that the company donated for McAllen’s use on a reserve for exotic animals. McAllen and Forest Oil’s settlement agreement ended a royalties dispute and included, among other provisions, an arbitration agreement for environmental claims not covered by the settlement. When Forest Oil moved to compel arbitration, McAllen countered that he was fraudulently induced to agree to arbitration on assurances that contamination or environmental problems did not exist on the land. The trial court denied arbitration and the court of appeals affirmed.

In this contract dispute involving wind generated-energy sales, a principal issue is whether a liquidated-damages provision applies to sale of renewable-energy credits and to energy sales under the contract, or just to the credits, raising the question whether the provision is enforceable. In this case TXU sued for contract breach, claiming FPL Energy and two other wind-energy producers that contracted to sell it energy and renewable-energy credits – sales that helped TXU comply with to a new state law requiring renewable energy production in Texas – failed to deliver the energy and energy credits. FPL and the other wind-energy producers counterclaimed that TXU did not provide sufficient transmission lines to carry the wind-energy produced. The trial court found the liquidated damages amounted to an unenforceable penalty, that TXU was required to provide transmission capacity and that TXU should take nothing because it covered its losses by buying renewable energy from other sources. The court of appeals reversed, holding that the liquidated-damages provision is enforceable and that TXU's contract with the wind-energy producers did not require it to provide transmission capacity.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-1010 FPL Farming Ltd. v. Environmental Processing Systems L.C. from Liberty County and the Ninth District Court of Appeals, Beaumont For petitioner: Ms. Claudia Wilson Frost, Houston For respondents: Mr. Richard G. Baker, Liberty In this subsurface-trespass case, the principal issues are (1) whether a permit-holder with authority to inject wastewater underground can be immune because of the state-issued permit from liability when the wastewater intrudes beneath neighboring property and, if so, (2) whether that constitutes an unconstitutional taking. A turning-point issue is whether subsurface water migration can be actionable as a trespass. FPL Farming, owner of two tracts in Liberty County, initially opposed the state’s 1996 wastewater-injection permits to Environmental Processing Systems on land near FPL’s. FPL Farming settled with Environmental Processing, but sued when the state (then the Texas Natural Resource Conservation Commission) granted an amendment in 1999 to increase the allowed injection rate. FPL Farming alleged the wastewater migrated under its land. A jury rejected FPL’s claims and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0592 Fresh Coat Inc. v. K-2 Inc. from Montgomery County and the 9th District Court of Appeals, Beaumont For petitioner: Kevin Jewell, Houston For cross-petitioner/respondent: Thomas C. Wright, Houston A principal issue is whether a subcontractor hired to mix and install an allegedly defective stucco product is entitled to manufacturer’s indemnity for a settlement with the homebuilder, like the subcontractor a “seller,” to satisfy contractual indemnity. The issue raises the question whether the contractual liability is “independent liability” that would exclude it from Texas Civil Practices and Remedies Code section 82.002(a)’s requirement that manufacturers indemnify sellers. In this case the homebuilder settled with the homeowners and sought indemnity from Fresh Coat and K-2, the manufacturer (also known as Finestone). Fresh Coat settled claims by the homebuilder and homeowner and cross-claimed for indemnity from Finestone. A jury awarded Fresh Coat its requested indemnity damages, but the court of appeals deleted the amount Fresh Coat paid the homebuilder in their settlement. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett

(Justice O'Neil and Justice Guzman not sitting) 08-0528 The John G. and Marie Stella Kenedy Memorial Foundation v. Ann M. Fernandez from Nueces County and the 13th District Court of Appeals, Corpus Christi/Edinburg consolidated with 08–0529, Kenedy Memorial Foundation v. Fernandez and 08-0534 Frost National Bank v. Ann M. Fernandez For petitioner Foundation: Macey Reasoner Stokes, Houston For petitioner Frost as trustee: Jacqueline M. Stroh, San Antonio For respondent: Julie Pendery, Dallas This appeal involves bills of review seeking to reopen two cases decided more than 30 years ago and a 60-year-old declaratory judgment on a will construction involving a South Texas ranching fortune. The bills to set aside the judgments were brought on behalf of Ann M. Fernandez, who claims she is a daughter born out of wedlock to famed rancher John G. Kenedy Jr. and a Kenedy housemaid. The principal issues are (1) whether the district court had jurisdiction for its summary judgment favoring the foundation when bills of review in the county probate court seeking the same relief were pending while the probate court determined the heirship claim and (2) whether the discovery rule saves the would-be heir’s claim because the purported paternity was recently discovered. The district court ruled that Fernandez lacked standing to bring her suits, but the court of appeals held that the district court should have abated its cases while the probate court determined heirship, a threshold for the standing question. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0755 Frymire Engineering Co. Inc. v. Jomar International Ltd. and Mixer S.R.L. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Stewart K. Smith, Irving For respondents: Hilaree A. Casada, Dallas The Supreme Court will hear arguments on the issue of whether equitable subrogation establishes standing for subcontractor seeking reimbursement from third party manufacturer for damages paid. In this case involving premises damages attributed to a faulty water valve, the principal issues are (1) whether a subcontractor obligated by agreement to pay any damages to the premises owner has standing to sue the valve manufacturer under the equitable-subrogation doctrine; (2) whether the doctrine’s application contravenes state contribution law on the theory that the contractor and the valve manufacturer are joint tortfeasors; and (3) whether applying the doctrine violates public policy on assigned claims. Through its insurer Frymire, the subcontractor repairing a water line, paid a Dallas hotel owner for flooding damages and got the hotel’s release from all claims. Frymire then sued Jomar, the valve manufacturer, alleging negligence, products liability and warranty breach. In uncontradicted testimony, Frymire’s expert attributed the flooding to a faulty valve. The trial court granted summary judgment in Jomar’s favor. The court of appeals affirmed, holding that Frymire did not have standing to sue because it paid the hotel to satisfy its own contractual obligation, not Jomar’s tort liability, and voluntarily agreed to indemnify the hotel owner.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0010 Galveston Central Appraisal District v. TRQ Captain’s Landing, L.P., and American Housing Foundation from Galveston County and the First District Court of Appeals, Houston For petitioner: Michael B. Hughes, Galveston For respondents: John Ben Blanchard, Amarillo The Supreme Court will hear arguments on the issue of whether a community housing agency may claim an ad valorem tax exemption for property to which it holds equitable title but legal title is held by its development subsidiaries. The issue is whether a community housing agency may claim an ad valorem tax exemption for property to which it holds equitable title but legal title is held by a wholly owned development subsidiary. Together with TRQ Captain’s Landing, its subsidiary, American Housing Foundation sued the appraisal district over the district’s denial of a property-tax exemption for apartments to which TRQ held legal title. Under state tax law, such an exemption may be granted only to a qualified non-profit community housing-development organization that owns property for sale or lease to low- or moderate-income people. Galveston County Appraisal District argues that it holds equitable title in the apartments and that its intent in forming the subsidiary, to develop low-income housing, complies with the Legislature’s intent for tax exemptions. The trial court granted summary judgment for the appraisal district. The court of appeals reversed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0453 Geffrey Klein, M.D., and Baylor College of Medicine v. Cynthia Hernandez from Harris County and the First District Court of Appeals, Houston For petitioners: Cameron Pope, Houston For respondent: Robert J. Talaska and Theodore G. Skarbowski, Houston In this medical-malpractice suit the principal issues are (1) whether the appeals court erred by dismissing Klein and Baylor's interlocutory appeals because Klein was not a state officer or employee and Baylor was not a governmental unit and (2) whether the trial court erred by denying Baylor and Klein's summary-judgment motions based on governmental immunity. Hernandez sued Klein and Baylor for injuries her baby suffered during a delivery at Houston's public Ben Taub Hospital by Klein, a Baylor resident acting under Baylor's contract with the Texas Higher Education Coordinating Board for training at Ben Taub. The two Houston courts of appeals have split on the question whether Baylor residents should be considered public employees entitled to take preliminary appeals when a trial court denies dismissal based on an immunity claim. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0828 Genesis Tax Loan Services Inc., et al. v. Kody and Janet Kothmann from Lubbock County and the Seventh District Court of Appeals, Amarillo For petitioners: G. Roland Love, Dallas For respondents: Mont McClendon, Lubbock The issues in this case between competing liens is (1) whether the appeals court erred by holding that Genesis, which claims a tax-lien transfer on four properties, was required to plead its lien superiority as an affirmative defense and (2) whether the appeals court misconstrued Texas Tax Code section 32.06 by holding that Genesis failed to effect transfer of the tax liens. The Kothmanns sold four properties on an installment plan and filed deeds of trust against the properties. Two years later the buyer borrowed money from Genesis Tax Loan Services to pay taxes on the properties and Genesis secured the loan with tax-lien transfers. When the borrower defaulted, Genesis tried to foreclose. The Kothmanns then sued Genesis, arguing that their liens were superior because they filed theirs first, Genesis did not plead its tax-lien transfers in defense and did not comply with requirements to effect the transfers. The trial court declared Genesis’ liens were superior, but the court of appeals reversed, holding that Genesis had to plead its liens were superior as a defense and that the liens did not comply with statutory requirements. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issue is whether the statutory affirmative defense in a personal-injury or wrongful-death claim that the plaintiff was committing a felony for which he "has been finally convicted" that was the sole cause of his injuries bars the common law's unlawful-acts doctrine in a wrongful-death suit. Arredondo sued Dugger for delay in calling paramedics when her son collapsed after drinking, smoking marijuana and ingesting black-tar heroin and for failing to tell the paramedics that her son had been consuming heroin. Paramedics treated him for alcohol poisoning, not a reaction to the heroin. Dugger won summary judgment, arguing that the unlawful-acts doctrine barred Arredondo's suit. On appeal, the court reversed, holding that the more specific statutory affirmative defense - requiring proof of conviction - preempted the common-law unlawful-acts rule and that Dugger did not establish all the defense's elements.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0246 Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Craig T. Enoch, Austin For respondent: Glenn R. Legge, Houston The principal issues are (1) whether an excess general commercial liability policy's exclusion for liability assumed by contract applies to an insured's indemnification claim based on a third party-beneficiary's breach-of-contract allegation and, if so, (2) whether the policy exception for damages "the insured would have in the absence of the contract" provides coverage and requires indemnification. In this case Gilbert settled with a property owner who sued over flood damage allegedly caused by Gilbert's construction debris, which allegedly channeled heavy rain runoff to the property owner's buildings. In Gilbert's contract, to build a light-rail line, the company agreed to protect property belonging to third parties and to make repairs for damage it caused. The trial court found coverage under Gilbert's excess-insurance policy, but the court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-1051 Galbraith Engineering Consultants Inc. v. Sam Pochucha and Jean Pochucha from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Stephen E. Walraven, San Antonio For respondents: Robert W. Loree, San Antonio The issue is whether a 10-year repose statute barring a lawsuit against an engineer prohibits joining an engineer as a responsible third party under another statute that allows joinder despite expiration of a statute of limitations. The Pochuchas sued the contractor who built the house, then joined him as a defendant after the contractor designated him as a responsible third party. The trial court granted Galbraith summary judgment because he had not been sued within10 years. The court of appeals reversed, holding that joinder was permitted even after limitations expired. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0975 Grant Thornton LLP v. Prospect High Income Fund, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Samara L. Kline, Dallas For respondents: Paul Lackey, Dallas In this auditor-liability case, the issues are (1) whether investment-fund bondholders presented enough evidence of fraud and misrepresentation to defeat traditional and no-evidence summary-judgment motions under the foreseeability standard in Ernst & Young L.L.P. v. Pacific Mutual Life Insurance Co. and (2) whether their evidence was enough to defeat summary-judgment motions on conspiracy to commit fraud and aiding and abetting fraud. The investment funds sued Grant Thornton, the auditor for the bond-issuing vacation-timeshare company, over financial statements for the bonds that failed to disclose material problems. Grant Thornton argues in part that the investments funds did not show in purchasing the bonds that they relied on the financial statements prepared for the timeshare company’s purposes or that the audit information caused their losses. The trial court granted Grant Thornton summary judgment on all claims, but the appeals court reversed on fraud and misrepresentation, among others. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0904 Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al. from Hudspeth County and the Eighth District Court of Appeals, El Paso For petitioner: Joseph L. Hood Jr., El Paso; Russell S. Johnson, Austin For respondents: Renea Hicks and Lambeth Townsend, Austin The Supreme Court will hear arguments on the issue of whether conservation district’s restrictions on new water-transfer application violate state law and landowner’s equal-protection rights. The issues in this water-transfer challenge arising from an attempt by El Paso to buy and transfer water from nearby Hudspeth County are (1) whether the conservation district’s transfer rules violate state law prohibiting more restrictive conditions on out-of-district transfer applications and (2) whether the district’s transfer rules violate the landowner’s equal-protection rights. As part of its aquifer-conservation plan, the Hudspeth County district imposed restrictions on transferring water based on historical water use. That means, in this case, Guitar, which had not used as much water in the past as smaller landowners, could not transfer as much water as the smaller landowners. Guitar argues that those restrictions violate provisions of Senate Bill 2, an amendment to the comprehensive groundwater law enacted in 1997. The trial court held the conservation district’s rules valid. The appeals court affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-1065 Raoul Hagen v. Doris J. Hagen from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Ryan G. Anderson, San Antonio For respondent: Gary A. Beahm, San Antonio The issue is whether an action to determine if a 1976 divorce decree award of “Army Retirement Pay or Military Retirement Pay” includes disability benefits is a collateral attack barred by res judicata. When the Hagens divorced in 1976, Doris Hagen got rights to almost half of Raoul Hagen’s military retirement pay. Then, after the U.S. Department of Veterans Affairs determined in 2003 he was 40 percent disabled, Raoul Hagen elected to draw 40 percent of his retirement pay as disability benefits, which under federal law cannot be divided as property. As a result, Raoul began paying his ex-wife her percentage share of the 60 percent he got in military retirement. When Doris sued, the trial court determined the divorce decree did not require him to split his disability payments. The court of appeals reversed, holding that Raoul’s retroactive advantage of the federal Uniformed Services Former Spouses’ Protection Act’s exclusion of disability pay was barred because it was a matter a court already decided. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issues are (1) whether an arbitration clause in a trust is binding on beneficiaries under the Texas Arbitration Act and, if so, (2) whether the trustee, a successor to the inter vivos trust, has standing to enforce the arbitration agreement. In this case Reitz, whose father established the trust that named Reitz as a beneficiary, sued to remove Rachal as the trustee. In response Rachal moved to compel arbitration under a mandatory trust provision requiring beneficiaries to arbitrate their claims. The trial court denied the motion. In a decision for the entire court of appeals, the court affirmed. The court held that a valid arbitration clause binding trust beneficiaries must result from a contract, not a property conveyance by trust.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0806 Walter E. Harrell v. State of Texas from Terry County and the Seventh District Court of Appeals, Amarillo For petitioner: James Caleb Scott, Dallas For respondent: Jason Bujnosek, Brownfield The principal issues are (1) whether the state is required to follow garnishment procedures to take money from a prisoner’s inmate trust account to pay for his court-appointed attorney and court fees and (2) whether the court of appeals had jurisdiction to hear Harrell’s appeal. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

Justice Willett is not sitting. 05-0986 Harris County Hospital District v. Tomball Regional Hospital from Harris County and the 14th District Court of Appeals, Houston For petitioner: Sandra Hachem, Houston For respondent: Randal L. Payne, Houston The Supreme Court will hear arguments on the issue of whether the immunity issue for hospital district sued for reimbursement by hospital authority. The issue is whether the Harris County Hospital District is immune from the Tomball hospital’s suit seeking compensation because it allegedly treated indigent patients that Harris County should have under state law. Tomball sued to be reimbursed for care given to Harris County patients that Tomball alleges were turned away from Harris County hospitals or referred by those hospitals to Tomball’s. Harris County claims in part that it is exempt from paying other hospitals for treating patients eligible for free care under the Indigent Health Care and Treatment Act. The trial court dismissed Tomball’s suit on Harris County’s jurisdictional plea. The court of appeals reversed, holding that the statute’s language that a hospital district could “sue and be sued” was an unambiguous immunity waiver.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0377 Aaron Glenn Haywood v. Margarita Garza de Escabedo from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Mr. Peter M. Kelly., Houston For respondent: Mr. Frank G. Cawley, Addison The issue is whether Civil Practices and Remedies Code section 41.0105 annuls the collateral-source rule, either as an evidentiary rule or a damages rule, when an injured person’s initial medical expenses differ from those “actually paid or incurred” by an injured person or on that person’s behalf. In this case Escabedo moved to limit damages testimony that would show what Haygood, who was injured in an automobile accident, was billed. That amount differed by as much as $95,000 from what the medical-care providers would have charged him beyond what Medicare paid for his care but for Medicare restrictions. After the trial court allowed testimony on the $110,000 the hospital would have charged, the jury awarded that much as damages. The court of appeals held that section 41.0105 restricts not only recoverable damages but also relevant evidence to prove damages. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0418 HCBeck Ltd. v. Charles Rice from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: David Rodriguez Weiner, Dallas For respondent: Paul Boudloche, Fort Worth The Supreme Court will hear arguments on the issue of whether contractor is immune because construction-site owner pays workers comp premiums for subcontractor’s employee. The principal issue is whether a general contractor has “provided” workers compensation insurance when the construction-site owner pays premiums for a subcontractor’s insurance. In this case the site owner paid workers comp premiums for HCBeck employees and for those of a subcontractor, Greer, that HCBeck hired. Its contract with HCBeck, the owner reserved the right to provide workers comp insurance for HCBeck and subcontractors but, if not provided, required that HCBeck buy the insurance from the owner’s designated agent. The contract required subcontractors to comply with its terms. Greer, the subcontractor, was not an additional insured under HCBeck’s policy. When Rice, the subcontractor’s employee, sued HCBeck for negligence over a job injury, HCBeck argued that Rice was a “deemed employee” and that HCBeck was immune because Rice’s exclusive remedy was workers comp. The trial court granted summary judgment for HCBeck, but the court of appeals reversed on the immunity issue.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0491 ?Hearts Bluff Game Ranch Inc. v. State of Texas and Texas Water Development Board? from Travis County and Third District Court of Appeals, Austin? For petitioner: Terry Jacobson, Corsicana? For respondents: Arthur C. D’Andrea, Austin ? The issue is whether an inverse-condemnation claim is proper against the state based on allegations the state acted to cause a federal agency to deny a wetlands-preservation permit in a area the state designated for a northeast Texas reservoir. In Hearts Bluff’s lawsuit against the Texas Water Development Board, the company claimed the state lobbied the federal Army Corps of Engineers to deny Hearts Bluff Game Ranch a wetlands mitigation bank for property the company bought with assurance that the mitigation bank would be approved. The proposed mitigation area lay in an area proposed for a reservoir the state Legislature eventually approved. The state pleaded that the court did not have jurisdiction, based on sovereign immunity. The trial court denied the state’s jurisdictional plea, but the appeals court reversed. In addition to the elements for an inverse-condemnation claim, the court held, Hearts Bluff must have established – and did not – that the water development agency effected the taking by a direct restriction resulting from its own regulatory power. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0671 Kerry Heckman, et al. v. Williamson County, et al. from Williamson County and the Third District Court of Appeals, Austin For petitioners: Harry Williams IV, Seattle For respondents: Henry W. Prejean, Georgetown, and C. Robert Heath, Austin In this proposed class action brought under section 1983, misdemeanor defendants allege the county denied their constitutional rights to appointed counsel and to open-court hearings. The issues are (1) whether the plaintiffs have standing to seek class certification even though named plaintiffs no longer suffer alleged injuries and (2) whether the claims should have been remanded to consider the county’s argument that policy changes made the claims moot. Four misdemeanor defendants and the mother of a juvenile facing a marijuana-possession complaint variously complain that they were systematically denied appointed counsel in their first appearances in court (all later were appointed counsel) and that their initial appearances, in a secure section of the county jail, were closed to the public, including defendants’ families. When the trial court denied the county’s jurisdictional plea, the county took an interlocutory appeal. The court of appeals reversed and dismissed, holding that none of the plaintiffs had standing on all claims of the proposed class. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0784 and 07-0785 Harry Holmes II v. Douglas G. Beatty from Harris County and the 14th District Court of Appeals, Houston For petitioner: Richard P. Hogan, Jr. and Jack W. Lawter, Jr., Houston For respondent: Joseph S. Horrigan, Houston In this case challenging distribution of brokerage-account assets and securities certificates held jointly by deceased spouses, a principal issue is what the Probate Code requires to establish survivorship rights by agreement in otherwise community property. Holmes and Beatty, children from different marriages, were executors of each of their parents’ estates. The parents left about $10 million in joint brokerage accounts and securities acquired as community property and variously designated as “JT TEN” and “JT WROS” on the fronts. Two the accounts were labeled “JT TEN” and a box for “Joint (WROS)” was marked for a third account. Some certificates attempted to define the designations on the back as “JT TEN – as joint tenants with right of survivorship and not as tenants in common,” but others did not. The trial court found survivorship rights in two of six disputed asset categories, but the court of appeals reversed in those two and held a right of survivorship existed in one account in which the trial court had not (the box classifying the account as “Joint (WROS)).” The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0784 and 07-0785 Harry Holmes II v. Douglas G. Beatty from Harris County and the 14th District Court of Appeals, Houston For petitioner: Richard P. Hogan, Jr. and Jack W. Lawter, Jr., Houston For respondent: Joseph S. Horrigan, Houston In this case challenging distribution of brokerage-account assets and securities certificates held jointly by deceased spouses, a principal issue is what the Probate Code requires to establish survivorship rights by agreement in otherwise community property. Holmes and Beatty, children from different marriages, were executors of each of their parents’ estates. The parents left about $10 million in joint brokerage accounts and securities acquired as community property and variously designated as “JT TEN” and “JT WROS” on the fronts. Two the accounts were labeled “JT TEN” and a box for “Joint (WROS)” was marked for a third account. Some certificates attempted to define the designations on the back as “JT TEN – as joint tenants with right of survivorship and not as tenants in common,” but others did not. The trial court found survivorship rights in two of six disputed asset categories, but the court of appeals reversed in those two and held a right of survivorship existed in one account in which the trial court had not (the box classifying the account as “Joint (WROS)).” The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

In this dispute between a surface owner and the mineral-rights owner the issue is whether the accommodation doctrine requires the surface owner to prove he has no alternative for conducting his existing use of his property. In this case Merriman, a pharmacist who raised cattle in land he owned and leased, sued XTO for drilling on property he used to sort his cattle once a year and for grazing during the remainder. The trial court granted summary judgment for XTO and the court of appeals affirmed. Merriman argues that the appeals court's holding that he did not prove he had no other reasonable or practical use for his land improperly adds an element to the accommodation doctrine.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0191 Hyde Park Baptist Church v. Tara Turner and Terry Curtis from Travis County and the Third District Court of Appeals, Austin For petitioner: David M. Pruessner, Dallas For respondents: Laurie Higginbotham, Austin In this case involving a teacher’s intentional injury of a child at a church-run school, principal issues are (1) whether mental-anguish damages were proper against the church when (a) a significant injury arguably was not involved and (b) the church waived those damages by failing to object to how damages were submitted to the jury, by broad form; (2) whether mental-anguish damages were proper against the church when the jury found it negligent but not that it acted with malice; and (3) whether the jury improperly apportioned the church’s fault for the teacher’s criminal conduct. In this case parents sued after a teacher intentionally bumped their 1-year-old boy, knocking him to the ground, causing a head bump. The parents later determined this was not the first such abuse, of their child or others. Jurors awarded $100,000 in future mental-anguish damages and found the church was 80 percent responsible. The court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0753 James Derwood Iliff v. Jerilyn True Iliff from Hays County and the Third District Court of Appeals, Austin For petitioner: Jeremy C. Martin, Dallas For respondent: Frank B. Suhr, New Braunfels For amicus curiae State of Texas: David S. Morales, Austin The issue is whether the Family Code provision allowing child support to be calculated on earning potential in “intentional unemployment or underemployment” requires proof that underemployment exists to avoid child support. In this case James Iliff, who after his divorce quit a job earning more than $100,000 a year, appeals a trial-court judgment calculating child support based on earning potential and his intentional underemployment. The court of appeals rejected his argument that his ex-wife must prove his unemployment is intended to avoid child support. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0491 In re Baylor Medical Center at Garland from Dallas County and the Fifth District Court of Appeals, Dallas For relator: R. Brent Cooper, Dallas For real parties in interest: William M. Hayner Jr., Gil L. Daley II, Dallas The Supreme Court will hear arguments on the issue of whether trial court abused discretion by ordering new trial ostensibly on juror affidavits. Among the principal issues in this medical-malpractice case are (1) whether Baylor’s mandamus request in this Court – on the same or similar issues dismissed as moot in an earlier proceeding before the Court – justifies bypassing the appeals court and (2) whether the trial court in one instance and its successor abused their discretion either by (a) vacating an order reinstating a judgment in Baylor’s favor or (b) by ordering a new trial based on post-trial juror affidavits in the absence of other grounds supporting a new trial. In an earlier stage in the underlying proceedings, after a jury verdict for Baylor, Baylor challenged a new trial order in a mandamus petition that the court of appeals denied. Baylor filed for mandamus relief in the Supreme Court, but later moved to dismiss it as moot because a new judge vacated the new trial order and reinstated the verdict. That successor judge then vacated her order, allowing a second trial to proceed. Baylor filed for mandamus relief directly with the Supreme Court.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

In re BP Products North America Inc. from Galveston County and the First District Court of Appeals, Houston For relator: Katherine Mackillop, Houston For real party in interest: David W. Holman, Houston The Supreme Court will hear arguments on the issue of whether apex-deposition doctrine protects retired CEO. A principal issue in this case involving deposition of a retired chief executive officer is whether the apex-deposition doctrine that protects a company’s highest officers from harassing depositions, absent actual and pertinent knowledge, applies to a retired CEO. BP sought mandamus relief when plaintiffs got an order allowing BP’s then CEO, John Browne, to be deposed in a lawsuit over the Texas City refinery explosion. The court of appeals denied BP’s mandamus petition. When Browne resigned in May after admitting perjury in a British court, the plaintiffs moved to dismiss as moot the company’s mandamus petition. BP resists that motion. Justice Gaultney sitting by appointment pursuant to Section 22.005 of the Texas Government Code.07-0119

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0416 In re Columbia Medical Center of Las Colinas, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: R. Brent Cooper, Dallas For real parties in interest: Ben C. Martin, Dallas The Supreme Court will hear arguments on the issue of whether mandamus is proper for new trial ordered for ‘justice and fairness’. The issue is whether the trial court abused its discretion by granting a new trial “in the interest of justice and fairness.” In this case Columbia argues for a higher standard for a new trial ordered after a jury has rendered a verdict. The medical center contends in part that the absence of any right to appeal a new-trial order violates its due-process rights. The real party in interest, the wife of a man claiming he died because of medical malpractice, counters that Columbia is trying to do by a writ of mandamus what the Legislature has disallowed by statute and, to be successful, the Court would have to ignore precedent. Trials have been within the province of trial courts, she argues, because trial courts are best able to judge whether another trial is warranted. The appeals court held that the trial court had sufficient reasons to order the new trial.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0995 In re Columbia Valley Healthcare System, L.P. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For relator: Mike A. Hatchell, Austin For real parties in interest: Carlos Escobar and Juan A. Magallanes, Brownsville The issue is whether a legal assistant who worked on the other side of a case disqualifies her new law firm when the extent of her involvement in the case was allegedly administrative. In this medical-malpractice case attorneys for a hospital’s owners moved to disqualify the plaintiffs’ law firm because one of its legal assistants had been employed by the hospital’s lead counsel, responsible for filing privileged documents and handling investigative material and documents pertaining to strategy and settlement. Before she left the hospital’s law firm she signed a confidentiality agreement that obligated her not to work on any matter that she previously worked on for the law firm. The counsel who hired her admonished her not to work on cases she worked on at the previous firm, although she filed correspondence involving the malpractice case and did other work, including rescheduling a docket conference, handling correspondence and calls concerning it and copying the plaintiffs’ son’s birth certificate and Social Security records. The trial court denied the disqualification motion. The appeals court affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

This and the related 12-0198 action involve a royalty-owners class suing for underpayment the issues are (1) whether interlocutory review or relief by mandamus or prohibition are proper to force the trial court to reconsider class certification by res judicata issues the Court arguably ordered be reconsidered on remand in the previous appeal, Bowden v. Phillips Petroleum Co.; (2) whether the Supreme Court has interlocutory jurisdiction to review the trial court’s addition of implied-covenant-to-market claims on remand by the certified class and (3) whether the implied-covenant-to-market claims should be struck as matter of law. As to the first issue, Phillips and ConocoPhillips argue that Bowden required reconsideration of the class certification based on the res judicata issues. Yarbrough counters that Bowden confirmed class certification of the subclass in this appeal and ordered res judicata be considered only if the trial court certified a new class.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0520 In re Coy Reece from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Robert B. Gilbreath, Dallas For real parties in interest: Edward Jason Dennis and Mr. Jeremy A. Fielding, Dallas The issue is whether the Court has habeas or mandamus jurisdiction to review criminal contempt for perjury during a civil-suit deposition. In this case Reece petitioned the Court of Criminal Appeals for habeas-corpus relief, but that court refused to act, reasoning that it had constitutional authority to do so but the matter, arising from a civil case, was appropriate for the Texas Supreme Court. In this case, Reece restyled his petition as one for mandamus relief. He argues habeas relief is inadequate because this Court only can order someone freed from a contempt order arising from violating an existing “order, judgment or decree” in a civil case, factors not involved in this case of admitted lying in a deposition. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0147 In re Calla Davis, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Craig T. Enoch, Austin For real party in interest: Grant H. Brenna, Dallas The Supreme Court will hear arguments on the issue of whether county commissioners abused discretion by refusing to call liquor-sales election after election petitions certified. In this dispute over an order for a local-option election to approve beer and wine sales, the principal issues are (1) whether county commissioners abused their discretion by refusing to order the election after election petitions were certified and, if so, (2) whether the election should be called for the current justice-of-the-peace precinct (from which petitions were gathered) or separate elections for areas of two existing precincts that were in the precinct that voted “dry” in the 1870s. Commissioners acted because the Texas Alcoholic Beverage Code (section 251.80) requires a “wet” or “dry” area must remain unchanged until a vote in the same territory that comprised the precinct when its status was established. In this case the boundaries of the original JP precinct changed since it voted “dry” in 1877. The court of appeals denied mandamus relief that would have ordered commissioners to set the election.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0524 In re Department of Family & Protective Services from Harris County and the 1st District Court of Appeals, Houston For relator: Sandra Hachem, Houston For real party in interest: Douglas Ray York, Houston The issues in this parental-rights termination case are (1) whether the trial court’s new-trial order after the statutory dismissal deadline vacated a termination order rendered before the deadline passed; (2) whether an objection based on the trial court’s failure to dismiss was waived because it came after the new-trial order; (3) whether mandamus relief is appropriate when the state can pursue an accelerated appeal; and (4) whether Family Code section 263.401(b) restrictions are jurisdictional. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0952 In re Eduardo “Walo” Gracia Bazan from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For relator: Kelly K. McKinnis, McAllen For real party in interest: Cheryl Hole, Edinburg The Supreme Court will hear arguments on the issue of whether ‘forgiveness doctrine’ operates to bar removal of officer convicted of crime alleged before re-election. The issue is whether is a constable may be removed from office and suspended pending appeal for a conviction that occurred years before his re-election. Bazan, a constable elected from a Hidalgo County precinct, seeks mandamus relief from a court order removing him for a felony conviction and suspending him during his appeal. Bazan was convicted of stealing a car by deception on allegations dating to October 2001, three years before he was re-elected. The trial court cited two provisions of the Texas Local Government Code requiring the removal and suspension, but Bazan argues that Local Government Code section 87.001 bars his removal for crimes that occurred before his re-election. The state argues that the Texas Constitution prohibits anyone convicted of bribery from holding public office, that Bazan’s crime was bribery, so the constitution trumps Local Government Code section 87.001. The court of appeals denied Bazan’s mandamus petition.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0687 In re Frank Kent Motor Co. from Tarrant County and the Second District Court of Appeals, Fort Worth For relator: Robert Ruotolo, Dallas For real party in interest: Timothy G. Chovanec, Fort Worth The issue is whether an employee may avoid a signed jury waiver in an employment handbook by claiming the waiver resulted from duress or coercion. Valdez, an ex-employee, sued Frank Kent for wrongful termination, claiming he was fired because of his age, and sought a jury trial. Frank Kent moved to strike the jury demand because Valdez had signed a jury waiver for any employment disputes a year before he was fired. Valdez countered the motion to strike with an affidavit attesting that his supervisor told him he would be fired if he did not sign the waiver. The trial court denied the company’s motion to strike. On the company’s mandamus petition, the appeals court denied relief. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0093 In re Gayle E. Coppock from Denton County and the Second District Court of Appeals, Fort Worth For relator: William E. Trantham, Denton For real party in interest: Amie S. Peace, Dan C. Coffey, Denton The issues in this habeas corpus proceeding involving an ex-spouse found in contempt for “coarse or offensive” communications are (1) whether the divorce decree ordered or commanded no coarse or offensive communication and, if so, (2) whether that would be an unconstitutional prior restraint on the ex-spouse’s free speech or void for vagueness and (3) whether the trial court order substantively changed its decree after it lost jurisdiction to do so. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

Justice O'Neill is not sitting. In re General Electric Co., et al. from Harris County and the First District Court of Appeals, Houston For relator: Kurt H. Kuhn, Austin For real parties in interest: Charles S. Siegel, Dallas The Supreme Court will hear arguments on the issue of whether statutory forum non conveniens factors, if met, compel dismissal. In this case, in which a multi-district litigation court refused to dismiss an asbestos claim for forum non conveniens, principal issues are (1) whether the dismissal motion must be granted if statutory factors are satisfied and (2) whether the supremacy clause is violated by trial court's stipulation that defendants waive their right to remove the case to federal court after dismissal for improper forum. In this case a Maine resident sued companies in Texas over asbestos disease he contracted while working in Maine. General Electric and the other companies moved to dismiss, arguing that Maine was a more appropriate forum than Texas. The multi-district litigation court refused to dismiss, reasoning that Texas was more appropriate to try the case even though neither the plaintiff nor his injury had any connection with Texas. The court noted that the defendants refused to agree not to remove the case to federal court once it was filed in Maine because the plaintiff, who was dying, would be subject to slower-acting federal MDL courts than Texas'. The court of appeals refused to grant mandamus relief.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0040 In re GlobalSantaFe Corp. from Harris County and the 14th District Court of Appeals, Houston For relator: Christopher Dove, Houston For real party in interest: John M. Black, Houston In this mandamus seeking the pretrial court to retain jurisdiction, the Supreme Court will hear arguments on the principal issue is whether and by how much the Jones Act preempts Texas Civil Practice and Remedies Code chapter 90. In this petition seeking to compel the pretrial multidistrict litigation court to retain jurisdiction over a silica case, the principal issue is whether and by how much the federal Jones Act preempts the state’s multidistrict litigation procedures. Under the Jones Act, a ship’s hand or sailor claiming a work injury aboard ship may file a state lawsuit free of any minimum-injury requirement imposed on personal-injury suits by state law. Lopez, who claims injury from silica, argues that restrictions imposed on his case by Texas Civil Practice and Remedies Code Chapter 90, the MDL procedures, are substantive limitations forbidden by the federal law: The MDL procedures for silica cases exist to bar people with minimum injury from filing suit and a medical report that failed to meet a threshold standard to forgo the MDL pretrial process was a report the Jones Act barred. The MDL pretrial court remanded Lopez’s case to the trial court and the court of appeals denied GlobalSantaFe the mandamus relief it sought.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0055 In re Gulf Exploration LLC, et al. from Midland County and the 11th District Court of Appeals, Eastland For relators: James M. Chaney, Oklahoma City For real party in interest: Brad Miller, Midland The Supreme Court will hear arguments on the principal issues are whether the court of appeals had jurisdiction to review a trial court order compelling arbitration and, if so, whether the appeals court erred by vacating the order on grounds that claims were outside the scope of the arbitration clause. In this case working interest partners in an oil- and gas-development agreement moved to arbitrate their claim that the operating partner, Great Western, used an acquired lease adjacent to the development tract to drill offset wells that drew from the reservoir subject to their development agreement and that, under the operating agreement, the operating partners should have been given a right to participate. The agreement included an arbitration provision covering claims over areas of “mutual interest.” The trial court granted the arbitration motion, but the court of appeals in a mandamus action ordered the trial court to rescind the arbitration order because the claim was beyond the scope of the arbitration provision.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

(Chief Justice Jefferson not sitting) 07-0581 In re Harold R. Schmitz, et al. from Bexar County and the Fourth District Court of Appeals, San Antonio For relators: Debra J. McComas, Dallas For real party in interest: Kevin K. Green, San Diego The Supreme Court will hear arguments of whether a lawyer’s letter challenging a proposed merger was sufficient as a pre-suit demand before a derivative-shareholder lawsuit. Principal issues are (1) whether a letter objecting to a merger agreement constituted a proper demand letter required to file a shareholder-derivative suit under Texas law; (2) whether irreparable injury was established that justified waiver of the 90-day waiting period before suit; and (3) whether an adequate remedy by appeal existed. In this case a shareholder sued Lancer Corp. board members after the board accepted a merger offer valued at $1 a share less than another offer, citing what the board considered to be more favorable sales conditions. Two months after the proposed merger’s announcement, an attorney faxed the company a letter attacking the merger. Three days later a shareholder sued to stop the merger and to declare board members breached their fiduciary duties by selling at an alleged inadequate and unfair price. Lancer shareholders later approved the merger. Board members then moved to dismiss the suit, arguing that Dillingham, the shareholder who challenged the merger, had not satisfied a statutory requirement under the Texas Business and Corporation Act article 5.14 to present her demands before filing her suit. The trial court denied the dismissal motion. On a petition for mandamus relief, to order the trial court to dismiss, the court of appeals rejected the petition.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0322 In re James Allen Hall from Bexar County and the Fourth District Court of Appeals, San Antonio For relator: Tim Patton, San Antonio For real party in interest: Kevin Patrick Yeary, San Antonio The principal issue is whether an adult held over from juvenile-delinquency confinement on a 40-year determinate sentence has a right to an attorney for a habeas corpus action. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issue is whether in a deceptive trade-practices action by the Attorney General's Office the DTPA's permissive-venue provision should take priority over the mandatory venue provided by the Civil Practices and Remedies Code. In this case, alleging gasoline marketers diluted octane ratings of gas they sold, the attorney general sued for an injunction in Travis County under a DTPA provision providing suits may be filed against defendants in a county in which they have “done business.” Cook and the other retailers contend Travis County is an improper venue because the Civil Practices and Remedies Code mandates venue where defendants have their principal homes, or domiciles. The court of appeals denied Cook's petition for mandamus relief after the trial court ruled the suit was proper in Travis County.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

06-0369 In re Jack Jorden, M.D., et al. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Bill Liebbe, Tyler The Supreme Court will hear arguments on the issue of whether pre-suit deposition rule supersedes medical-malpractice limits. The issue in this effort to take depositions before a lawsuit is filed on a medical malpractice claim, a procedure authorized under Texas Rule of Civil Procedure 202, is whether Rule 202 is trumped by statutory medical-malpractice restrictions. In this case a woman’s son, a physician, hired a lawyer to investigate the possibility of suing doctors who treated his mother before she died of a heart attack. His counsel petitioned the trial court to depose the mother’s primary-care doctor, an emergency-room doctor and representatives of the hospital and clinic where she was treated. The trial court denied the petition for pre-suit depositions. The court of appeals granted mandamus relief, holding that Texas Civil Practices and Remedies Code chapter 74, a provision of House Bill 4's sweeping tort reform, did not preclude Rule 202 depositions to investigate the merits of a suit.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0309 In re Joseph Charles Rubiola, et al. from Bexar County and the Fourth District Court of Appeals, San Antonio For relator: Ms. Elizabeth Conry Davidson, San Antonio For real parties in interest: Mr. Bryan A. Woods, San Antonio The issue is whether arbitration can be compelled for misrepresentation claims involving a home sale when (a) the home-sale agreement did not contain an arbitration provision but the mortgage contract did and (b) the principals selling the house and financing it were the same. The mortgage-agreement arbitration clause covered “each and all persons and entities signing this agreement or any other agreements between or among any of the parties as part of this transaction.” The trial court refused to compel arbitration. The court of appeals denied the sellers mandamus relief. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0419 In re Labatt Food Service L.P. from Bexar County and the Fourth District Court of Appeals, San Antonio For relator: Nissa Dunn, San Antonio For real party in interest: Leo D. Figueroa, San Antonio The Supreme Court will hear arguments on (1) whether a pre-death arbitration agreement binds a person’s wrongful-death beneficiaries and (2) whether the prohibition of pre-injury waivers of personal-injury or death claims under Texas Labor Code section 406.033(e) defeats the decedent’s arbitration agreement. Principal issues are (1) whether an agreement to arbitrate occupational injury or death claims binds a person’s wrongful-death beneficiaries and (2) whether the arbitration agreement is barred by the statutory prohibition of personal-injury or death-claim waivers under Texas Labor Code section 406.033(e). In this case the trial court refused to compel arbitration of wrongful death and survivors’ claims after a Labatt employee died in a work accident. The court of appeals denied the company’s mandamus petition. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0737 In Re Lester Collins, M.D. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Peter Kelly, Houston The principal issues in the medical-malpractice case are (1) whether the trial court abused its discretion by prohibiting ex parte communication with non-party physicians and health-care providers who treated the plaintiff and listed by her on the statutory schedule for disclosure and release; (2) whether Civil Practices and Remedies Code section 74.052 prohibits ex parte communications with the med-mal plaintiff’s physicians and health-care providers; and (3) whether federal law (HIPAA) prohibits ex parte communications and preempts section 74.052. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0665 In re Morgan Stanley & Co. Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For relators: Thomas R. Phillips, Austin For real parties in interest: Charles T. Frazier, Dallas The Supreme Court will hear arguments on whether arbitrator should decide incapacity issue of underlying contract. In this breach-of-fiduciary-duties case a principal issues is whether an arbitrator should decide if a contract is enforceable because one party allegedly lacked the mental capacity to agree to it. A guardian appointed for a Dallas woman’s estate sued investors, among others, alleging that the woman had been diagnosed with dementia about the time she transferred several securities accounts to the investment firm under agreements containing arbitration clauses. Morgan Stanley’s predecessor moved to compel arbitration of the dispute, but the probate court denied the motion and determined the woman did not have the capacity to conclude the agreements. The appeals court denied mandamus relief. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issue is whether statutory attorney fees constitute compensatory damages or costs awarded in the judgment for a deposit to supersede the judgment on appeal. In this mandamus action Nalle Plastics seeks relief from a Corpus Christi law firm's successful effort to increase Nalle's supersedeas deposit to reflect its attorney-fees award. The court of appeals denied the mandamus petition seeking to overturn the trial court’s order increasing the deposit.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

09-0432 In re Olshan Foundation Repair Co., LLC, and Olshan Foundation Repair Co. of Dallas, Ltd. from Wise County and the Second District Court of Appeals, Fort Worth consolidated for oral argument with 09-0433, 09-0474 and 09-0703 For relators: Stephan B. Rogers, Boerne For real parties in interest: Todd Lipscomb, San Antonio The principal issues are (1) whether in a dispute over home repairs the Federal Arbitration Act applies in an arbitration agreement specifying application of Texas law but that does not exclude federal law and (2) whether claims of Texas Home Solicitation Act violations should be arbitrated or decided by a court. In these cases homeowners sued Olshan based on engineering reports, written by the same engineer, concluding Olshan had not properly repaired their foundations. In three of the cases choice-of-law provisions in the contracts stipulated binding arbitration “pursuant to the arbitration laws in your state.” Homeowners in those case argue that the federal arbitration statute does not apply, rendering the arbitration provisions unenforceable under Texas law (Texas Civil Practice and Remedies Code section 171.002) because the contracts were not signed by the parties and their attorneys. The trial courts denied Olshan’s plea to abate and compel arbitration in each case and the courts of appeals denied mandamus relief in each. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0660 In re Satterfield & Pontikes Construction Inc. from Duval County and the Fourth District Court of Appeals, San Antonio For relator: Nicholas A. Parma, San Antonio For real party in interest: Craig T. Enoch, Austin The principal issue is whether the trial court erred (a) when it severed all subcontractors from a school district's lawsuit against Satterfield, the prime contractor, even though the court previously permitted Satterfield to amend the suit to add the subcontractors, or (b) when the court refused to consolidate Satterfield's suits against the subcontractors, or (c) both. In this case Satterfield claimed its subcontractors did all construction on a high school and moved to add them to the suit alleging construction defects. The trial court granted the motion without notice to either party. Then Satterfield sued the subcontractors in a separate action and tried to consolidate those suits with the district's. The trial court denied the motion. When Satterfield learned the court granted its earlier motion to file a third-party petition against the subcontractors, Satterfield amended and served them. The trial court denied the district's motion to strike the subcontractors from the suit, but severed them on its own motion. The court of appeals denied mandamus relief. As in the Scoggins case, an important issue is whether Satterfield has an adequate remedy by appeal if the trial court clearly abused its discretion. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

08-0544 In re Scoggins Construction Co. Inc. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For relator: Craig A. Morgan, Austin For real party in interest: Lee H. Shidlofsky, Austin The principal issues are (1) whether the trial court clearly abused its discretion when it denied Scoggins, a general contractor for a school-construction project, permission to join subcontractors in the school district's breach-of-contract suit against Scoggins or to designate them as responsible third parties for allocating damages and (2) whether Scoggins has an adequate remedy by appeal if the trial court did abuse its discretion. After the Mercedes school district sued Scoggins, the trial court refused Scoggins' motion for leave to add the subcontractors pursuant to civil procedure Rule 38 or to designate them as responsible third parties under Civil Practices and Remedies Code chapter 33. The appeals court denied mandamus relief. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0235 In re State of Texas from Travis County and the Third District Court of Appeals, Austin For relator State of Texas: Ms. Susan Desmarais Bonnen, Austin For real parties in interest: Mr. Stephen I. Adler, Austin The issue is whether the trial court acted within its discretion by splitting a condemnation action into separate actions when the property owners subdivided the original tract after the original condemnation was filed. In this case the state challenged the trial court’s decision to divide compensation claims into eight separate suits. The property owners who held the original parcel subdivided it in part, they claimed, to demonstrate its higher value. Special commissioners assigned to sort from competing valuations split the difference in appraised values, the new owners moved to split the claims from the commissioners’ award, arguing that none was commonly owned and none of the eight tracts bordered another. The trial court granted the motions. The appeals court denied the state’s petition to prevent the split claims. The state contends in part that dividing the claims was improper because subdivision occurred after the condemnation notice involving one tract and one set of owners. But the owners argue that the subdivision occurred before the state actually took the land - the date the state pays for the land - so assessing the value of eight tracts was proper. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

11-0732 In re Stephanie Lee from Harris County and the 14th District Court of Appeals, Houston For relator: Scott Rothenberg, Houston For real party in interest: Clinton F. Lawson, San Antonio The principal issue is whether a mediated settlement must be enforced that provides, in the absence of family violence, a divorced mother periodic possession of her 7-year-old daughter when the mother is married to a registered sex offender. The trial court, considering the father’s testimony that the child slept between her mother and her new husband when he was naked, found the settlement not in the child’s best interest and refused to enforce it. Lee, the mother, argues that the only statutory exception to enforcing a mediated settlement is when family violence can be shown. The court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0605 In re Commitment of Michael Bohannan from Montgomery County and the Ninth District Court of Appeals, Beaumont For petitioner: Catherine Palmore, Huntsville For respondent: Kenneth Nash, Huntsville The issue in this sexual predator-commitment case is whether Bohannon’s expert, a therapist without forensic training, was properly disqualified from testifying whether he suffered a behavioral abnormality, a necessary factor to assessing a sexually violent predator. On the state’s challenge of the expert’s qualifications, the trial court after a Daubert hearing barred her testimony on whether Bohannon was likely to reoffend because the court determined she is not a psychiatrist or psychologist and lacks forensic training. The appeals court reversed, holding that the expert, experienced in treating sexual offenders, was qualified to assess his recidivism risk ad her testimony would assist the jury. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

11-0255 In re the Office of the Attorney General from Tarrant County and the Second District Court of Appeals, Fort Worth For relators: Kristofer S. Monson, Austin, and Jessica Hall Janicek, Dallas For real party in interest: Thomas M. Michel, Fort Worth The issue is whether a parent in arrears on child support subject to an enforcement motion may be found in contempt if he paid the due child support covered by the motion but not support he owed in the interim before the motion hearing. In this case the Tarrant County Domestic Relations Office sought as much as $23,000 an ex-husband owed in support for his six children, including payments the office believed he would likely fail to pay. After he was served with the enforcement motion, he paid what he owned in full as of September 2008 and moved for reduction in the $5,400-a-month child-support order. By the hearing in February 2009 he was several months and more than $28,000 behind on his payments. The trial court denied his motion to modify the child-support order and found him in contempt for payments he made in September 2008 that he failed to make before the enforcement motion was filed. The court of appeals held that the trial court could not hold the father in contempt if he was current on all overdue support payments covered by the enforcement motion. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The principal issues are (1) whether an appellate court may evaluate a new-trial order on the merits in a mandamus proceeding and (2) whether the trial court abused its discretion by granting a new trial in the interest of justice and as a sanction for alleged violation of an order barring disclosure of an investigating officer’s conclusion about seatbelt use in a rollover accident. In the underlying suit a driver's family claimed he died when he was ejected from the vehicle because its restraint system failed. After the jury found for Toyota, the family moved for a new trial, contending Toyota's counsel violated the motion in limine in closing argument by referring to the officer's conclusion that the driver was not wearing a seatbelt. The trial court granted the new-trial motion, ruling that Toyota willfully disregarded its ruling on the in-limine motion and that an instruction to jurors could not eliminate the harm. The appeals court affirmed.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0526 In re United Scaffolding Inc. from Jefferson County and Ninth District Court of Appeals, Beaumont For relator: Kathleen M. Kennedy, Beaumont For real party in interest: Chris M. Portner, Beaumont The issue is whether, after remand to specify reasons for a new trial ordered “in the interest of justice and fairness,” the trial court’s amended new-trial order abused its discretion for failing again to specify reasons. After a hearing on remand, the trial court issued another new-trial order, concluding without more on three points that the jury verdict was “against the great weight and preponderance of the evidence” and – in addition to those reasons or in the alternative – was in “the interest of justice and fairness.” In a split decision the court of appeals denied United Scaffolding’s second mandamus petition challenging the order. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0871 In re United Services Automobile Association from Bexar County and the Fourth District Court of Appeals, San Antonio For relator: Pamela Stanton Baron, Austin For real party in interest: Jeff Small, San Antonio In this age-discrimination suit, the principal issue after a question of proper mandamus jurisdiction is whether the plaintiff filed his action in district court too late. The mandamus proceeding questions whether the limitations period under Texas Labor Code chapter 21 remains mandatory and jurisdictional after Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000). Also at issue is whether the time periods in Chapter 21 are subject to tolling under Texas Civil Practices & Remedies Code section 16.064. This suit was the second by the complainant. His first, filed in county court at law, was reversed on appeal because the county court did not have jurisdiction. Five years after the initial complaint, he filed in district court. The trial court in the second suit denied USAA’s jurisdictional plea. The court of appeals denied the company’s mandamus petition, concluding USAA had an adequate remedy by appeal. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman

(Justice Lehrmann not sitting) 10-0238 In re Universal Underwriters of Texas Insurance Co. from Tarrant County and the Second District Court of Appeals, Fort Worth For relator: Don Martinson, Dallas For real party in interest: Scott M. Keller, Dallas For amicus curiae Texas Trial Lawyers Association: Peter M. Kelly, Houston The issue in this insurance dispute is whether Universal waived its right to appraisal either by not invoking it at the time the parties were disputing a claim valuation or when it sent a letter to the claimant advising him of limitations on a lawsuit if he chose to sue. Grubbs Infiniti sued Universal for breaching the insurance contract after Universal paid for hail damage Grubbs claimed for its roof. Universal initially paid the hail-damage claim but not on the roof until Grubbs requested the roof’s additional inspection. When Grubbs sued, Universal moved to abate and to compel appraisal under the policy’s appraisal provision. The trial court denied the motions and the court of appeals denied the insurer’s mandamus petition. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0836 In re Weekley Homes L.P. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Craig T. Enoch, Austin For real party in interest: Christopher H. Rentzel, Dallas The issue is whether the trial court abused its discretion by ordering computer hard drives produced for a forensic expert’s copying and searching. In this mandamus action, Weekley Homes argues that the trial court granted the motion to compel under Texas Rule of Civil Procedure 192 (outlining permissible discovery) and not Rule 196.4 (production of electronic or magnetic data). A company sued Weekley Homes in the underlying action over defective lots it bought from Weekley and that Weekley had certified. The company, HFG Enclave Lane Interests Ltd., asked for emails sent to and from four Weekley employees and, based on alleged inconsistencies in what Weekley produced, asked for an order to copy the hard drivers to try to retrieve deleted documents. The court ordered production of the drives and production of any relevant emails under certain restrictions, which included first review by Weekley’s lawyers. The court of appeals denied Weekley’s mandamus petition. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0960 In re XL Specialty Insurance Co. and Cambridge Integrated Services Group Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For relators: David Brenner, Austin For real party in interest: Alan B. Daughtry, Houston The principal issue in this workers-compensation case is whether the attorney-client privilege extends to communications between an insured party, the employer, and the workers-comp insurer’s attorney. In this case XL’s argument centers on the common legal-interest doctrine, which the real party in interest disputes, arguing against the purported privilege because Texas workers-comp law bars an employer other than one insuring itself from making claims-handling or settlement decisions. Wagner, the employee, sued XL Specialty, his employer’s workers-comp insurer, for breaching its duty of good faith and fair dealing. Raising privilege, XL refused the employee’s requested disclosure of communications between its attorney and the Wagner’s employer. The trial court granted Wagner’s motion to compel discovery and the appeals court denied XL’s petition for mandamus relief. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

(Justice Guzman not sitting) 08-0961 Maria del Carmen Guilbot Serros de Gonzalez, et al. v. Miguel Angel Gonzalez Guilbot, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Thomas R. Phillips, Austin For cross-petitioners/respondents: Andy Taylor, Houston Principal issues arising from a family-business fight alleging theft and trademark infringement are (1) whether a third (“tertiary”) recusal motion defined by statute applies only when filed against the same judge; (2) whether a facially defective recusal motion allows the judge to take no action on the defective motion; and (3) whether, for a case remanded to state court after removal, the state court reacquires jurisdiction only if the federal clerk mails the remand order to the state court. In this case two siblings were accused of stealing the family herbal-tea companies’ assets and infringing on company trademarks. They moved to recuse a Harris County probate judge scheduled to hear the suit, then moved to remove the judge assigned to hear the recusal motion and the presiding judge who made the assignment. The presiding judge dismissed the recusal motions against him and the second judge for defects. The court of appeals reversed, holding in part that the state court acquired jurisdiction but the presiding judge could not rule on the recusal motion against him. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Harriet O'Neill

07-0960 In the Interest of B.G., et al. from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Brent L. Watkins, Lufkin For respondent: Trevor A. Woodruff, Austin The issue in this parental-rights termination is whether Family Code section 263.405 is constitutional by imposing a 15-day deadline to file a statement of points to preserve appellate grounds. In this case the father acted as his own attorney in the termination hearing after firing his lawyer just before trial. He filed his statement of appellate points 40 days late after the trial court appointed a second attorney to handle his appeal. The first, appointed just after the hearing, did not file anything. In the statement the father claimed the termination order could not be supported by sufficient evidence and he had been prevented from offering certain evidence. The trial court found him indigent and his appeal not frivolous, but concluded that no meaningful issue had been preserved for appellate review and denied the father his request that he be furnished the hearing transcript without cost. On appeal he argued he was denied due process, but the court of appeals held the issue should have been presented to the trial court but was forfeited because it had not. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

The issues in this parental rights-termination suit are (1) whether the statutory provision permitting termination on a showing that a parent failed to comply with her service plan is applicable only to a child removed by the state because he was abused and neglected and (2) whether other grounds pleaded for terminating parental rights but not found by the trial court should have been considered on appeal to affirm the termination order. In this case the child subject to the termination proceeding was removed after his mother was accused of abusing his older sister. The trial court ordered the mother’s parental rights terminated on two bases of several the state alleged: That she failed to follow the service plan the state established for the child’s return to her care and that termination was in the child's best interest. On the mother's appeal that insufficient evidence supported the grounds on which the trial court relied, the court of appeals held that termination under the service-plan provision required evidence that the child's removal resulted from abuse or neglect of that child. The appeals court did not consider the state's argument that other pleaded grounds sufficed to terminate the mother's parental rights.

The principal issues are (1) whether legally sufficient evidence supported the "best interest" standard for terminating a deported Mexican citizen’s parental rights despite his continuing support for his children and visits with them with help from relatives since his deportation and (2) whether legally sufficient evidence supported the endangerment standard when that evidence was based in part on the father’s conviction for criminal activity with a minor a decade earlier. This case involves a father who left Wisconsin before his probation ended, then was arrested for probation violation in Texas when he sought to renew an immigrant-work permit and eventually deported. The court of appeals affirmed the trial court’s termination order.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

11-0282 In the Interest of E.R., et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Jeremy C. Martin, Dallas For respondent: Kimberly Duncan, Dallas The principal issue is whether a statutory deadline for attacking a parental rights-termination order based on service by publication bars a mother from such an attack when the state could have served her in person but did not. In this case the state petitioned to terminate the mother’s rights to four children and explained that publication was used for service because she told her caseworker she was moving and did not have a permanent address. Within the next month the mother met with her caseworker for a scheduled appointment, but was not served in person. She did not attend the termination hearing, although her attorney ad litem did. The trial court ordered her parental right terminated. More than six months after the decree was signed, the mother moved for a new trial. The state opposed the new-trial motion, which the trial court denied, but did not raise the six-month deadline for attacking a termination order under Family Code 161.211(b) until it filed an amended brief after the mother’s reply brief to the court of appeals. That court affirmed the termination, holding that the statutory deadline constituted an absolute bar to challenging the decree after six months. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

08-0379 In the Interest of J.O.A., T.J.A.M., T.J.M. and C.T.M. from Collingsworth County and the Seventh District Court of Appeals, Amarillo For petitioners: Trevor A. Woodruff, Austin For respondents: John Franklin McDonough III, Pampa The Supreme Court will hear arguments on whether time limit on filing appellate points in parental-rights termination bars ineffective-assistance of counsel claim for attorney’s failure to file appellate points. The principal issue is whether the Family Code unconstitutionally bars a parental-rights termination appeal raising ineffective assistance of counsel based on the trial counsel’s failure to meet the threshold requirement to preserve such an appeal. In this case a father’s attorney failed to file a statement of appellate points – a requirement to proceed with an appeal – within 15 days of the termination order. Appointed counsel for the appeal raised ineffective assistance of counsel, a constitutional challenge, after the deadline for filing appellate points. The court of appeals found the statute violated the father’s due-process rights. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-1044 In the Matter of B.W. from Harris County and the First District Court of Appeals, Houston For petitioner: Michael Choyke, Houston For respondent: Dan McCrory, Houston The principal issues are (1) whether a child 13 or younger can be adjudicated for a prostitution offense when a child under 14 cannot legally consent to sexual conduct and (2) whether the state violated the child’s due-process rights by failing to investigate whether she was compelled to prostitute herself. In this case the girl, a foster-care runaway, argues that she could not be adjudicated for an offense that involved an act she was legally incapable of consenting to. That would lead to an absurd result, she argues, taking her offense outside the general scope of juvenile law making juveniles subject to penal code violations as young as 10. And she contends her due-process rights were violated because she could have had an immunity defense to prostitution if juvenile prosecutors had pursued suspicion that she was forced into prostitution by her 32-year-old boyfriend. She essentially pleaded guilty (“true”) to the prostitution allegation, but moved for a new trial on her contention she was too young to be adjudicated for the offense. The trial court denied her motion and the court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

In the Matter of H.V. from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner Tarrant County District Attorney: David M. Curl, Fort Worth For respondent: Michael Shawn Matlock, Fort Worth. The Supreme Court will hear arguments on the issue of whether juvenile’s request to call his mother was unequivocal request for lawyer and, if so, whether weapon discovered from statement was admissible. The issues in this murder case against a juvenile are (1) whether the boy’s request to call his mother to seek an attorney was an unambiguous invocation of his right to counsel and (2) whether a gun found based on information in a suppressed statement was properly excluded as the “fruit of the poisonous tree.” In this case H.V., a 16-year-old Bosnian immigrant who had been in the United States four years, was arrested as he tried to carry a bloody carpet from his house while police had the home sealed as they waited for a search warrant. In custody, a magistrate read H.V. his rights for a second time that day (this time he refused to sign a written warning). When he asked to call his mother so she could call an attorney, the magistrate told him that his only options were to ask for an attorney, make a statement to police or not make one. H.V. told the magistrate he was “only 16.” The magistrate assured him that he could ask for an attorney if he wanted an attorney. H.V. then consented to talk with investigators. The trial court ruled that his request to call his mother was an unequivocal request for counsel and ordered his statement suppressed and the gun inadmissible as evidence. The court of appeals affirmed, holding that the gun was inadmissible because it was obtained as a result of police failure to honor his request for an attorney, not a mere failure to warn him of his rights.

The principal issues in this juvenile-delinquency case are (1) whether the jury verdict was unanimous when the instruction was to find one or another act charged as deadly conduct but jurors did not specify which and (2) whether civil law or criminal law applies to determine if the ostensible jury-charge error was fundamental and requires reversal.

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

10-0859 In the Matter of M.P.A. from Bell County and the Third District Court of Appeals, Austin For petitioner: Dustin Howell, Austin, and Clint Broden, Dallas For respondent: James (Jim) V. Murphy and John Gauntt Jr., Belton In this juvenile-delinquency habeas-corpus review two principal issues are (1) whether the trial court erred by denying habeas relief on post-conviction evidence that a psychologist falsely testified about testing reliability by which he concluded the juvenile sex offender had pedophile propensities (and would likely offend again) and (2) whether habeas relief should have been granted on actual-innocence grounds because the complainant later recanted. Central to both issues are the differing appellate-review standards in each. In this case M.P.A. sought habeas relief because a cousin recanted her testimony that he sexually abused her when she was 7 and he was 15. He also claimed the psychologist called during his sentencing falsely testified that a test by which he concluded M.P.A. had pedophile tendencies was more reliable that it was. On review, the appeals court rejected both claims, noting for the recanted-evidence claim that conflicting evidence about reasons the cousin recanted her testimony failed the required clear-and-convincing-evidence standard for habeas relief. But on the testing-reliability claim, the court of appeals determined that M.P.A. had to show by a preponderance of evidence that the psychologist’s testimony influenced the jury’s decision on a 20-year sentence and that the expert testimony would have been excluded without the psychologist’s false statements. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

09-0340 Insurance Company of the State of Pennsylvania v. Carmen Muro from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Mr. Robert D. Stokes, Austin For respondents: Mr. Chad Ruback, Dallas The issues in this workers compensation case are (1) whether Texas law requires a direct injury to feet and hands in order to support benefits for loss of feet and hands alleged as a result of a back, shoulder and hip injury and (2) whether the trial court should have had the jury decide whether the injuries she suffered produced the lost use of her feet and hand. In this case the insurance carrier challenged a hearing officer’s determination granting Muro lifetime disability income for on-the-job injuries to her back, neck, shoulder and hips that she claimed resulted in permanent loss of a hand and her feet. A jury found Muro had permanent loss of her feet and the hand, awarded her lifetime benefits and attorneys fees. The court of appeals affirmed, holding that a direct injury is unnecessary to support the award and that the trial court did not abuse its discretion by failing to submit a producing-cause jury question. The insurance company argues that the jury should have considered the producing-cause factor because evidence indicated Muro had normal feelings in her feet and hand and use of them after the accident. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Scott A. Brister, Justice Harriet O'Neill

07-0815 Intercontinental Group Partnership v. KB Home Lone Star L.P. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Jesse R. Castillo, San Antonio For respondent: Renée F. McElhaney, San Antonio The issue is whether in a contract-breach action the plaintiff can be the prevailing party, for attorney fees purposes, when the jury found the defendant breached the contract but did not award damages. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

Sitting for the court: Justice Paul W. Green, Justice Nathan L. Hecht, Chief Justice Wallace B. Jefferson, Justice Phil Johnson, Justice David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Harriet O'Neill

08-0989 Italian Cowboy Partners Ltd., et al. v. The Prudential Insurance Co. of America, et al. from Dallas County and the 11th District Court of Appeals, Eastland For petitioners: Thomas F. Allen Jr., Dallas For respondents: G. Luke Ashley, Dallas Among issues in this restaurant lease dispute over recurring sewer odors are (1) whether a lease provision disclaiming any representations not set out in the lease negates reliance to sustain fraud and negligent-misrepresentation claims and (2) whether the implied warranty that leased premises will be suitable for the intended occupation was not implicated because the lease obligated the restaurant owners to make certain repairs. In its suit, Italian Cowboy Partnership claimed the property manager knew of the building’s odor problems when another restaurant occupied it, but said the previous tenant did not have problems and continued to maintain the sewer odors had not existed before when the partnership encountered them. Prudential, the building owner, argues that the lease clearly establishes no other representations were made about the property except those written in the lease and that the lease by its terms represented the entire agreement. The trial court rescinded the lease and awarded the partnership damages. On review, the court of appeals reversed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us