05-0721 SSP Partners and Metro Novelties Inc. v. Gladstrong Investments (USA) Corp. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg In this indemnity action from a wrongful-death and products-liability case, the principal issues include (1) whether the court of appeals erred by holding the "apparent manufacturer" doctrine applied to a U.S. company held out as the product manufacturer by its closely allied foreign company and (2) whether the U.S. firm is the manufacturer because it and the foreign company are indistinguishable. SSP Partners sued Gladstone USA for indemnity after a judgment in a case alleging a child died as a result of a defective lighter. The trial court granted Gladstrong USA's motion asserting that no evidence showed it manufactured the lighter. The court of appeals reversed, holding in part that the common-law apparent manufacturer doctrine survives statutory indemnity provisions in Texas Civil Practices and Remedies Code chapter 82.

05-0882 Perry Homes, et al. v. Robert E. Cull and S. Jane Cull from Tarrant County and the Second District Court of Appeals, Fort Worth The principal issues are (1) whether a defendant must show prejudice to establish that plaintiffs waived their arbitration rights and (2) whether the defendant is prejudiced by the plaintiffs' pretrial discovery that would not have been available in arbitration. In this case the Culls initially resisted arbitration of their complaints against Perry Homes about construction defects. The Culls argued that arbitration was unconscionable because the chosen arbitration procedure was expensive and biased. After they pursued discovery for close to a year before trial, the Culls then moved for arbitration. Perry opposed their motion, contending the Culls had waived their right to arbitrate. The trial court granted the Culls' motion. Perry challenged the Culls' arbitration award, but the trial court confirmed it and the court of appeals affirmed.

05-1023 Montgomery County v. David Park from Montgomery County and the 10th District Court of Appeals, Waco In this retaliation action, the principal issues are (1) whether elimination of job duties that indirectly may affect pay constitutes an adverse personnel action under the Whistleblower Act and (2) whether alleged sexual harassment by a county commissioner reported to the sheriff's office or the county attorney constitutes a good-faith report to "an appropriate law enforcement authority." Park, a sheriff's lieutenant, sued the county after the commissioner he reported prompted a change in security-staffing responsibility for the county convention center. Because Park was responsible for scheduling convention-center security officers - including himself - he lost extra pay. His base compensation was unchanged. The trial court granted summary judgment for the county, but the court of appeals reversed, holding in part that Park raised material fact issues, including whether his work assignment and pay were adversely affected.

04-0431 PR Investments and Specialty Retailers Inc. v. State of Texas from Harris County and the 14th District Court of Appeals, Houston The principal issue is whether a road-design change deprives the trial court of jurisdiction to review condemnation damages when those damages were based on a different design. In this case PR Investments and Specialty Retailers argued that the trial court lost jurisdiction over the appeal because the Transportation Department eliminated the design to which they agreed for access from a street to their property. The department notified them of the change just before a trial de novo on a condemnation award. Instead of dismissing the proceeding, the trial court initially gave the department three options, including the one the department took that allowed it to proceed on the new design but likely face an inverse-condemnation lawsuit. Later the court granted PR Investments and Specialty Retailers' dismissal motion, based on their jurisdiction argument, and ordered the department to pay sanctions. The court of appeals affirmed. On rehearing before the entire court, it split 5-4, holding that the condemnation statute does not prohibit the department from changing its design plans even if that change prejudices landowners. The court also held that the statute does not require that issues in a condemnation appeal be the same as what special commissioners considered in awarding damages.

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.

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.

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.

05-0748 Southwestern Bell Telephone Co. v. Marketing On Hold Inc. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg In this interlocutory appeal from a class-certification order, the principal issues are (1) whether a corporation advancing claims it got by assignment can serve as class representative in a challenge to Southwestern Bell's billing for passed-along municipal fees and (2) whether the certified class met the requirement that common questions among the class predominate. Marketing On Hold, a firm that scrutinizes its clients' telephone bills for improper billing, took five claims by assignment and sought to certify the suit as a class action. The trial court named it class representative for nearly 7,000 Southwestern Bell customers in three phone-service categories. Of the claims Marketing On Hold held by assignment, none was in one of those categories. The court of appeals affirmed the class-certification order.

06-0074 Pastor Rick Barr and Philemon Homes Inc. v. City of Sinton from San Patricio County and the 13th District Court of Appeals, Corpus Christi/Edinburg In this case, a challenge to a zoning restriction on houses for parolees established as a ministry, the principal issues are (1) whether the Texas Religious Freedom Restoration Act requires the city to accommodate the houses despite zoning prohibiting them and (2) whether the act requires the city to prove the regulation is the least-restrictive means of furthering a compelling governmental interest. Barr sued to declare that the zoning violates state constitutional protection and the Religious Freedom Restoration Act because it prohibits a correctional or rehabilitation facility within 1,000 feet of the church - in this case, the church that sponsors them. The trial court held that the zoning was not a substantial burden Barr's religious beliefs. The court of appeals affirmed.

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.

06-0501 Juan Mario Villafani, M.D. v. Adela Trejo from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: TBA For respondent: Robert E. Brzezinski, San Antonio The principal issue is whether an appellate court has jurisdiction to consider an appeal from the trial court's refusal to dismiss a medical-malpractice lawsuit, based on an allegedly inadequate expert report, when the plaintiff later took a nonsuit dropping the action but retaining the possibility of filing another. In this case, filed under the previous medical-malpractice statute, the trial court granted Trejo a nonsuit without prejudice after it denied the doctor's motion for sanctions and dismissal. The court of appeals, in a split decision, affirmed.

06-0502 Jan N. Ogletree, M.D., and Heart Hospital of Austin v. Nancy Kay Matthews and Luann Matthews from Travis County and the Third District Court of Appeals, Austin For petitioners: TBA For respondents: Charles J. Young, Austin Principal issues in this medical-malpractice action are whether, under House Bill 4 amendments, (1) interlocutory appeal is available to challenge the trial court's decision to deny a dismissal motion based on an expert report's deficiency when the court also granted an extension to cure it; (2) whether those deficiencies can be cured by a report from a new expert; and (3) whether a defendant - the hospital in this case - waives a challenge to an expert report by not objecting to omission of a report addressing the required causation element. In this case the deficient expert report bearing on a physician's alleged negligence noted that another expert was needed to support the malpractice claim. Experts assessing the hospital's nursing care were nurses, who under the malpractice statute cannot offer an opinion that links negligence to the cause of death or injury. The hospital did not object to the expert reports until it moved to dismiss the case. The trial court denied the physician's and the hospital's dismissal motions, granted an extension to the cure the report on the physician's care and held the hospital waived its objection to reports on nursing care by objecting too late. The court of appeals affirmed.

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.

06-0247 Ulico Casualty Co. v. Allied Pilots Association from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Donald Colleluori, Dallas For respondent: B. Daniel Berryman, Fort Worth Principal issues are (1) whether an exception exists to the general rule that an insurer has no liability for defense costs for a claim after a policy's expiration when the insurer told the policyholder it would pay the costs and, if such an exception exists, (2) whether the court of appeals erred by characterizing the claim as one for contract breach for which attorneys fees can be awarded. In this case Ulico sued Allied for a declaration that it did not owe Allied defense costs in a suit Allied won. Allied had filed a claim when it was sued, in a separate suit, but filed it after its policy with Ulico expired. Despite that, Ulico told Allied that it would pay for Allied's defense in a letter that reserved its rights to contest coverage. In a subsequent letter the insurer restated that it would pay defense expenses "pursuant to" the earlier "reservation of rights" letter. The trial court awarded defense costs to Allied, based on waiver and estoppel - that Ulico had given up its right to deny defense costs by assuring Allied that its defense would be paid for. The court of appeals affirmed.

Pleasant Glade Assembly of God, et al. v. Laura Schubert from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioners: David M. Pruessner, Dallas For respondent: William O. Wuester, Fort Worth. The Supreme Court will hear arguments on the issue of whether mental-anguish damages may be awarded for post-traumatic stress. The principal issues in this false-imprisonment and assault case are (1) whether mental-anguish damages may be awarded based on a post-traumatic stress diagnosis and (2) whether the expert testimony on post-traumatic stress syndrome was reliable. In this case, the daughter of an Assembly of God missionary alleged that members and ministers of a Colleyville church unlawfully restrained her when she was 17 for two hours on two occasions by holding her down and praying over her. In the first instance she told church members she saw a "vision," then collapsed. She claims she was carried into a church classroom and, kicking and screaming, held against her will as church members and a youth minister prayed over her. Three days later church members allegedly found her in a fetal position, took her to a room again and held her "spread eagle" against her will. Her parents initially sued on her behalf for battery and false imprisonment, claiming damages for personal injuries, mental anguish and post-traumatic stress. Defendants contend her mental anguish resulted from traumatic experiences in Africa and argue that she should not have been allowed to recover damages for mental anguish and that her expert testimony on post-traumatic stress disorder was not reliable. A jury awarded damages for mental anguish, admitting evidence of post-traumatic stress. The court of appeals affirmed in part, but reversed on damages awarded for future earnings.

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.

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.

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.

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.

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.

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.

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.

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.

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.

06-0243 Solar Applications Engineering Inc. v. T.A. Operating Corp. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Douglas W. Alexander, Austin For respondent: Sharon E. Callaway, San Antonio The Supreme Court will hear arguments on the issue of whether lien-release provision before final payment in construction contract is condition precedent to suit over the contract. The issue is whether a construction-contract provision that required the contractor and subcontractors to release liens before final payment constitutes a condition that must be satisfied before a suing over a contract breach. Solar sued T.A. for breach after T.A. terminated the contract under which Solar was building T.A.'s truck stop in San Antonio in its last stages before final payment. T.A. responded to Solar's suit by arguing that Solar could not sue it for breach before releasing liens. Solar contends that its contract with T.A. required lien releases before final payment, but that provision could not be a condition precedent to a breach-of-contract suit because, in essence, liens were assurance that Solar would be paid. Even if the lien release was a condition precedent, Solar argues, it was not triggered because T.A. terminated the contract. A jury found for Solar. The court of appeals initially affirmed, then reversed and rendered judgment against Solar on rehearing. Note: Justice Green not sitting.

06-0550 New Texas Auto Auction Services, L.P. v. Graciela Gomez de Hernandez, et al. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Scott T. Clark and Roger W. Hughes, Harlingen For respondents: Rebecca E. Hamilton, Dallas The Supreme Court will hear arguments on the issue of whether auctioneers are 'sellers' in products-liability actions. In this case principal issues are (1) whether auto auctioneers can be "sellers" subject to strict liability and (2) whether the auctioneer was negligent for selling a vehicle subject to a defective-tire recall notice. Hernandez sued New Texas Auto Auction after a wreck in Mexico that killed her husband when he was driving an SUV the auction service owned and sold at auction to another auctioneer. The second auctioneer later sold the SUV to a dealer, which then sold it to Hernandez's husband. She alleges the tire defect caused the accident and claims both strict liability, based on the auctioneer as seller, and negligence because New Texas sold the vehicle with defective tires. New Texas Auto Auction argues that Texas should adopt the Third Restatement of Torts, which excludes auctioneers as sellers. The trial court granted summary judgment for the auctioneer on the strict-liability question and for Hernandez on the negligence issue. The court of appeals reversed on the strict-liability claim.

06-0660 Medical Center Dallas Ltd. v. Carlisle Corp. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Robert B. Gilbreath, Dallas For respondent: Michael L. Knapek and William D. Ellerman, Dallas The Supreme Court will hear arguments on the issue of whether attorneys fees can be recovered in breach-of-warranty case. The issue is whether attorneys fees may be recovered in a warranty-breach action. In this case Medical Center sued Carlisle for breaching its written warranty of roofing materials against premature deterioration. Jurors awarded Medical Center $110,500 damages for the defective roof and more than $121,000 for attorneys fees. The court of appeals affirmed the judgment for warranty breach, but reversed on attorneys fees because the hospital's warranty claim was distinct from a breach-of-contract claim that would allow attorneys fees to be awarded. Justice Hecht not sitting.

05-1042 JCW Electronics Inc. v. Pearl Iriz Garza from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Thomas F. Nye, Corpus Christi For respondents: Jane Webre, Austin The Supreme Court will hear arguments on the issue of whether implied-warranty damages are subject to comparative liability restrictions. The principal issues in this product-liability case include (1) whether damages for breach of implied warranty are subject to the proportionate-responsibility statute or comparative responsibility under the Uniform Commercial Code chapter 2; (2) whether a contractor who installed a telephone in a jail cell can be liable based on breach of implied warranty for an inmate's suicide when the inmate used a phone cord to strangle himself; and (3) whether JCW was deprived of its statutory suicide defense by the trial court's denial of a jury question on it. Among other claims, Garza, mother of the man who committed suicide, sued for negligence and for breach of an implied warranty of suitability for a particular purpose. Jurors found for Garza on the warranty claim and determined the inmate was 60 percent negligent. The trial court denied the company's motion for a take-nothing judgment, based on proportionate responsibility. The court of appeals affirmed.

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.

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

Missouri Pacific Railroad Co. v. Patricia Limmer, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Mike A. Hatchell, Austin For cross-petitioners/respondents: Deborah G. Hankinson, Dallas, and David Gunn, Houston The Supreme Court will hear arguments on the issue of whether state negligence claim is preempted if federal money improved a railroad crossing. In this case involving a fatal car-train collision, the principal issues are (1) whether federal law preempts a state negligence claim alleging inadequate warning at an "extra-hazardous" railroad crossing if remedial provisions were provided under federal programs and (2) whether a party objecting to a jury instruction allegedly presenting an erroneous negligence theory must also object to the form of an apportionment question including the erroneous theory. Missouri Pacific argues that federal law preempts the negligence claim, but Limmer counters that the railroad did not establish federal money was used for a warning device at the accident crossing. Limmer also contends that Missouri Pacific failed to object properly to the apportionment-of-damages jury question. The trial court set damages based on a jury finding the railroad was 85 percent negligent in part because the warning sign was obscured by rock piles and overgrown vegetation. The court of appeals reversed.

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.

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.

John Leland, D.D.S. v. George C. Brandal and Ruth L. Brandal from Bandera County and the Fourth District Court of Appeals, San Antonio For petitioner: Kathryn A. Stephens, San Antonio For respondents: Beth Squires, San Antonio The Supreme Court will hear arguments on the issue of whether appeals court that held med-mal expert report deficient can remand for extension to cure defect. The principal issues are (1) whether an appeals court that holds a medical-expert report deficient can remand for consideration of a 30-day extension to file an adequate report or must render judgment for the defendant and, if the appellate court can remand, (2) whether the plaintiff waived the extension by filing supplemental expert reports within time limits upon the defendant's objection to the original reports. In this case Leland objected to the adequacy of two expert reports the Brandals served. The Brandals then filed supplemental reports before the 120-day deadline expired. The trial court denied Leland's objection to the supplemented expert reports. When the court of appeals reversed, it remanded the case to consider a 30-day extension to cure the defect. The case also presents a jurisdictional question - whether the interlocutory appeal to the Supreme Court can be heard by the Court, based on whether a concurring opinion in the court of appeals creates a conflict in this case.

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.

Rory Lewis, M.D. v. Dewayne Funderburk from Limestone County and the 10th District Court of Appeals, Waco For petitioner: Andrew F. MacRae, Austin For respondent: Amy Thomas, Mexia The Supreme Court will hear arguments on the issue of whether Jurisdictional issue in appeal brought from denial to dismiss med-mal report. The principal issue is whether the court of appeals has jurisdiction over an interlocutory appeal from a trial court's refusal to strike an allegedly deficient expert report in a health-care liability claim. In this case Lewis objected to a second expert report Funderburk filed after the trial court granted him a 30-day extension to cure a defect in the original report. The trial court denied Lewis's objection to the second report and motion to dismiss. Lewis then appealed the ruling, but the court of appeals dismissed his case for lack of jurisdiction, holding that Texas Civil Practice & Remedies Code section 51.014(a)(10) does not grant an interlocutory appeal to challenge the adequacy of an expert report.

Texas Mutual Insurance Co. v. Paula Ledbetter, et al. from Jones County and the 11th District Court of Appeals, Eastland For petitioner: Mary A. Keeney, Austin For respondents: Lance Hall, Sweetwater The Supreme Court will hear arguments on the issue of whether challenge to nonsuit leaving only an estate in case workers comp insurer claims subrogation rights. Principal issues are (1) whether a challenge to a trial court's granting a nonsuit should be reviewed for abuse of discretion or de novo; (2) whether the trial court erred by allowing the nonsuit to be granted; and (3) whether Texas Mutual's intervention plea was proper. In this case Texas Mutual, which had been paying Ledbetter death benefits under a workers compensation policy, petitioned to intervene in a settlement hearing in a negligence suit Ledbetter filed. The insurance company claimed it had subrogation rights against the settlement proceeds for benefits it had paid. At that hearing, Ledbetter moved to drop all plaintiffs bringing claims over her husband's death, leaving only his estate in the suit. The trial court granted the nonsuit, struck Texas Mutual's intervention, ordered that it was not entitled to reimbursement and that it must continue payments. In this Court, Texas Mutual argues that the decision to grant the nonsuit must be reviewed in its entirety and that the nonsuit was improper because it prejudiced Texas Mutual's claim for affirmative relief by an adverse party. The court of appeals held that the nonsuit did not affect Texas Mutual's subrogation rights but that the trial court erred by striking the intervention.

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.

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.

06-0422 Reliance Steel & Aluminum Co. and Samuel Alvarado v. Michael Sevcik and Cathy Loth from Waller County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Thomas C. Wright, Houston; Russell H. McMains, Corpus Christi For respondents: David W. Holman, Houston The Supreme Court will hear arguments on the issue of whether gross sales evidence admissible in personal-injury case. Among principal issues in this personal-injury case are (1) whether the trial court erred by admitting evidence of the defendant company's gross sales when plaintiffs were not seeking punitive damages and (2) whether the appeals court erred by modifying an award for past medical expenses. Sevcik and Loth sued Reliance and its truck driver, Alvarado, over a collision that left Sevcik with physical injuries and Loth with permanent brain injury. At trial the judge rejected Reliance's attempt to show how much Loth earned before the accident, but allowed Loth to introduce evidence of Reliance's gross sales. On appeal Reliance argues that the gross sales testimony prejudiced the jury's damages awards. The court of appeals reduced an award for Loth's past medical expenses by $6,000, but otherwise affirmed damages Reliance challenged.

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.

Justice Willett is not sitting. 06-0845 Wagner & Brown Ltd., et al. v. Jane Turner Sheppard from Upshur County and the Sixth District Court of Appeals, Texarkana For petitioners: Macey Reasoner Stokes, Houston For respondent: Ben L. Mesches, Dallas The Supreme Court will hear arguments on the issue of whether oil and gas lease termination for failure to pay royalties automatically terminates the pooled unit. A principal issue is whether an oil and gas lease terminated for royalties nonpayment attributed to a clerical error automatically terminates the mineral-rights owner's participation in a pooling agreement. In this case Sheppard leased her one-eighth mineral interests in almost 63 acres to a production company, C.W. Resources, for a quarter of the royalties free of production costs. C.W. Resources and Wagner & Brown had leases on most of the other seven-eighths mineral rights. Under a pooling agreement, Wagner & Brown combined Sheppard's tract with others it leased and drilled two producing wells. Sheppard was not paid royalties within 120 days of production from those wells, which terminated her lease by its terms. She sued to declare her participation in the pooling agreement terminated because her lease had terminated and to declare she was entitled to a one-eighth share in production from the two wells producing on her tract. The trial court held that her interest was not subject to the pooled unit agreement. The court of appeals affirmed.

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.

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.

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

06-0933 Southwestern Bell Telephone L.P. v. Harris County Toll Road Authority and Harris County from Harris County and the First District Court of Appeals, Houston For petitioner: Mike A. Hatchell, Austin For respondents: Bruce S. Powers, Houston The Supreme Court will hear arguments on the issue is whether the Transportation Code (section 251.102) allows for reimbursement of the utility's relocation costs and provides for waiver of governmental immunity to enforce the claim. The issues in this dispute over costs of relocating underground cables are (1) whether the Transportation Code (section 251.102) allows for reimbursement of relocation costs and provides for waiver of governmental immunity to enforce the claim and (2) whether the utility has a sufficient property interest along a right-of-way to bring an inverse-condemnation claim for costs of moving its underground cables. In this case Southwestern Bell sued the county and toll-road authority for refusing to pay the $1.5 million it billed for relocating the cables to accommodate roadway expansion. The trial court awarded costs to the telephone company, but the court of appeals reversed.

06-1071 State Farm Lloyds v. Becky Ann Johnson from Collin County and the Fifth District Court of Appeals, Dallas For petitioner: Michael W. Huddleston, Dallas For respondent: Russell J. Bowman, Dallas The Supreme Court will hear arguments on the principal issue is whether an appraisal clause in a homeowner's policy gives appraisers authority to consider causation, coverage and liability in determining "amount of loss." The principal issue is whether an appraisal clause in a homeowner's policy covers a dispute over just the insurer's amount-of-damage calculation instead of one determining causation, coverage and liability questions in setting the loss amount. In this case Johnson sued State Farm after it refused her request for an appraisal under a clause providing an appraisal mechanism if the insurer and insured "fail to agree on the amount of loss...." State Farm had determined that Johnson's policy covered only $499 for hail-damaged shingles along the top of the roof, but her expert recommended a new roof, finding more extensive hail damage. The trial court granted State Farm's summary-judgment motion, but the court of appeals held in reversing the case that the dispute about the extent of hail damage was a dispute about the loss amount.

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.

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.

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.

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.

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.

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.

07-0091 Trammell Crow Central Texas Ltd. v. Maria Gutierrez, et al. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: W. Wendell Hall, San Antonio For respondents: Joe Stephens, Katy The Supreme Court will hear arguments on the issues are (1) whether past crimes were similar enough to make a crime foreseeable, triggering a duty to protect an invitee and (2) whether legally sufficient evidence supported the conclusion that breach of the duty proximately caused the invitee's injuries. In this case Gutierrez's husband was killed in an attack in shopping center parking lot outside a theater he and his wife had left. Trammel Crow's trial evidence suggested Gutierrez may have been targeted for a "hit" because, after his arrest for burglary, Gutierrez turned information on other suspects and told police he feared a drive-by shooting as retaliation. But Gutierrez's wife presented evidence that he was not afraid of an attack; that his wallet was stolen in the attack and his gold bracelet was broken (indicating a robbery by strangers); and that 10 robberies occurred on the premises among 220 crimes reported there in the previous two years. Her evidence indicated five of those robberies involved deadly weapons. Jurors awarded her a multi-million dollar verdict. The court of appeals affirmed, finding jurors could have determined the attack was a robbery by strangers, not a targeted killing, and was foreseeable.

06-0815 Jesse C. Ingram, Ph.D., et al. v. Louis Deere, D.O., et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Craig Enoch, Austin For respondents: Georganna L. Simpson, Dallas The Supreme Court will hear arguments on whether a partner's liability based on an oral contract ends when he refuses to sign a written partnership agreement. The principal issues in this breach-of-contract case are (1) whether legally sufficient evidence exists to support the jury's finding of an oral partnership agreement; (2) and, if such an agreement existed, whether liability for one partner ended when he refused to sign an employment agreement and ceased working for the clinic; and (3) whether that partner owed a fiduciary duty to the partnership as a matter of law. In this case Ingram, a psychologist, and Deere, a medical doctor, agreed to open a pain-management clinic that Ingram would operate but that he needed a medical doctor to call a clinic. They both agree Deere would get one-third of the revenue. But Deere, the medical doctor, contends Ingram agreed to take another third for himself and use the remainder for clinic expenses. Ingram contends the agreement only specified Deere's share. By mutual agreement, the partners later reduced Deere's share to one-fifth. But when Ingram tried to get Deere to sign a written employment agreement to that effect, Deere refused, claiming it violated the original contract. Ingram declared the arrangement over and Deere quit working at the clinic. Pressing contract-breach and other claims, Deere sued. A jury found for Deere, but the trial court entered a take-nothing judgment. The court of appeals reinstated $2.5 million in damages on Deere's breach of contract claim.

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.

06-0890 Nabors Drilling, U.S.A. Inc. v. Francisca Escoto, et al. from Willacy County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Reagan W. Simpson, Houston For respondents: Alex M. Miller, San Antonio The Supreme Court will hear arguments on the issue of whether employer has duty to protect against danger of its fatigued employee en route home. The principal issues are (1) whether an employer has a duty to protect third parties from a fatigued employee en route home after a 12-hour shift and (2) whether the employee has a duty to train its employees about the dangers of fatigue. In this case Escoto sued Nabors after four members of her family died in a car accident allegedly caused by Nabor's employee on his way home after working five 12-hour graveyard shifts. Escoto alleged that Nabors was liable it had a duty to protect other people when its employee drove home after a exhausting shift and because the company failed to train its employees how to handle fatigue. The trial court entered a judgment in Nabor's favor after a jury verdict for Escoto, reasoning that Nabor did not owe a duty to Escoto. The court of appeals reversed.

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.

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.

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.

06-0979 Sonat Exploration Co. v. Cudd Pressure Control Inc. From Harrison County and the Sixth District Court of Appeals, Texarkana For petitioner: Joel L. Thollander and Sam Baxter, Austin For respondent: David M. Gunn, Houston For intervenor Lumbermens Mutual Casualty Co.: Christopher Tramonte, Houston, and Arthur W. Landry, New Orleans The Supreme Court will hear arguments on the issue of whether choice of law applies to where an oilfield contract was made or where the primary indemnity obligation was performed. The principal issues are (1) whether choice-of-law analysis for an indemnification agreement is based on the place of performing the indemnity obligation or the place of performing the primary contract obligation and (2) whether, when a litigant uses the virtual-representation doctrine to appeal a trial court decision, the resulting appellate court decision binds an originally named party that did not appeal. Sonat, which agreed to mutual indemnity with Cudd in their oilfield-service contract, sued Cudd after Cudd refused to reimburse any of the $28 million that Sonat paid to settle a personal-injury suit. Cudd employees brought the suit in Texas after a Louisiana accident. Cudd argues that Louisiana law invalidates the mutual indemnity agreement. The trial court held for Sonat, concluding Texas law applied. Before an appeal, Cudd agreed that it would not appeal the choice of Texas law but would appeal the trial court's application of it. The intervenor in this case - Lumbermens, Cudd's insurer - then sought to appeal the trial court's choice-of-law ruling, employing the virtual-representation doctrine to raise the issue that Cudd agreed to abandon. The court of appeals reversed the trial court on its choice-of-law, holding that Louisiana law governed the contract.

06-0714 Barbara Robinson v. Crown Cork & Seal Co. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Deborah G. Hankinson, Dallas For respondents: Thomas R. Phillips, Austin, and Kimberly R. Stuart, Houston The Supreme Court will hear arguments on whether House Bill 4's "innocent successor" limits on asbestos liability violate the constitutional prohibition by retroactive application. The issue is whether the "innocent successor" limits on asbestos-related liability that House Bill 4 imposes (Civil Remedies and Practices Code Chapter 149) are unconstitutional either (1) as applied retroactively to an accrued cause of action or (2) as a special law. In this case Robinson appealed from a partial summary judgment in Crown Cork's favor. Crown Cork moved for the summary judgment based on House Bill 4 provision that became effective after Robinson sued over her husband's death from asbestos-related cancer. That provision, made applicable to pending cases, limited liability for asbestos claims involving companies that had acquired asbestos manufacturers before May 1968. In its summary-judgment motion, Crown Cork argued that it met the statutory limit on liability because it had paid more in asbestos claims than the market value of the asbestos manufacturer it acquired in 1966.

06-0867 Pine Oak Builders Inc. v. Great American Lloyds Insurance Co. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Joseph H. Pedigo, Houston, and Joe S. Yardas, Conroe For respondent: Jennifer Bruch Hogan, Houston The Supreme Court will hear arguments on the principal issue of when duty to defend is triggered and whether evidence extrinsic to pleadings may be admitted to invoke a policy's duty to defend. The principal issues are (1) whether evidence outside the pleadings and policy provisions may be introduced to determine a duty to defend and (2) whether the "exposure rule" or "manifestation rule" should determine when the duty to defend is triggered under an insurance policy. In this case Pine Oak sued two insurers with which it had commercial general liability policies (each insurer for a different policy period) after the insurers refused to defend the homebuilder from lawsuits filed by home buyers. Both insurers argued Pine Oak's policies did not cover the home buyers' claims. Great American contends its policy with Pine Oak did not cover Pine Oak's own work - but would cover subcontractors' work - and one home buyer's suit only cited Pine Oak's work in its allegations. In that case, Pine Oak argues that it should be allowed to prove by evidence beyond the lawsuit pleadings that a subcontractor's work was at issue. Great American argues that its duty to defend Pine Oak also should depend on when the construction defects were manifest rather than when the exposure to harmful conditions began. The trial court granted summary judgment for the insurers. The court of appeals affirmed the trial court's ruling that extrinsic evidence should not be allowed to show coverage, but reversed on when coverage was triggered.

06-0598 Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance Co. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Werner A. Powers and Charles C. Keeble Jr., Dallas For respondent: Joseph J. Borders, Chicago The Supreme Court will hear arguments of whether prejudice required to deny coverage under 'claims-made' policy with prompt-notice provision. A principal issue is whether under a "claims-made" insurance policy covering company directors and officers the insurer must show prejudice to deny coverage because of the insured's failure to notify the company promptly that a suit had been filed. The policy provision required notice "as soon as practicable" during the policy period, but not later than 90 days after the policy period or discovery period expires. Notice was given 11 months after the suit but before the 90-day period expired.

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.

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.

(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.

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.

(05-0653) Gilbert Kerlin, et al. v. Conception Sauceda, et al. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Claudia Wilson Frost and Jeremy Gaston, Houston For respondents: Jules L. Laird Jr., Houston The Supreme Court will hear arguments of limitations issue in heirs' claim to Padre Island land. In this case, a lawsuit by descendants of an original land-grant owner of Padre Island claiming interest in thousands of acres of the island, principal issues include (1) whether the statute of limitations was tolled by Kerlin's absence from the state and (2) whether equity should bar the claim. Descendants of Juan Jose Balli - whose uncle was Padre Island's namesake - sued Kerlin, claiming breach of contract, fraud and breach of fiduciary duty arising originally from Kerlin's purchase from the Balli heirs of any Padre Island interests by quitclaim deed in the 1930s. The Balli claimants also sued two of Kerlin's companies. Kerlin's purchase reserved to the Balli heirs a fraction of gas and oil royalties, if any such royalty interest existed. Kerlin bought the interests by quitclaim deed based on the prospect that the Balli heirs might still have legal title, based on a rescinded sale of the land in 1830. Kerlin and his companies argue that the statute of limitations in this case cannot be halted because, though he was out of state since the quitclaim deeds were bought, his companies were Texas-based. And even if limitations were tolled, they argue, the heirs should be barred by laches from bringing the lawsuit because they waited too long to sue, to the point when almost all witnesses to the half-century-old dealings were dead. A jury awarded damages to the Balli heirs. The court of appeals affirmed.

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

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

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

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

07-0131 John Christopher Franka, M.D., et al. v. Stacey Velasquez and Saragosa Alaniz from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Thomas H. Crofts Jr., San Antonio For respondents: Gene Hagood, Alvin The Supreme Court will hear arguments in this medical-malpractice case against two doctors at the University of Texas Health Science Center in San Antonio, the issue is whether they should be dismissed from the suit because it "could have been brought" against the Health Sciences Center. The issue in this medical-malpractice case against two doctors at the University of Texas Health Science Center in San Antonio is whether they should be dismissed from the suit because it "could have been brought" against the Health Sciences Center. Both doctors, one a professor and the other a resident, moved for summary judgment under Texas Civil Practices & Remedies Code section 101.106(f). That section provides that a suit against a government employee over conduct within the scope of the employee's work shall be dismissed if not amended to name, in this case, the UT Health Sciences Center instead. The trial court denied the summary-judgment 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

07-0697 Paul H. Smith, et al. v. Thomas O'Donnell from Harris County and the Fourth District Court of Appeals, San Antonio For petitioners: Casey L. Dobson, Austin For cross-petitioner/respondent: Vincent L. Marable III, Wharton The Supreme Court will hear arguments on (1) whether privity must exist between an executor and the deceased's attorney for a suit over alleged failure to advise on property mischaracterization when the deceased was executor of his late wife's estate and (2) whether a no-evidence summary judgment favoring the attorney was proper on the executor's gross-negligence claim. Principal issues include (1) whether privity must exist between an executor and the deceased's attorney to support a legal malpractice suit based on the attorney's alleged failure to advise on property mischaracterization when the deceased was executor of his late wife's estate and (2) whether the no-evidence summary judgment favoring the attorney was proper on the executor's gross-negligence claim. This action followed a suit by the deceased's children against their father's estate, claiming stock owned by their mother was mischaracterized as their father's separate property and deprived them of what they should have inherited from their mother. The trial court granted the attorney summary judgment. The court of appeals reversed, in part holding that no privity existed between the attorney and the executor and in part holding no evidence existed to prove gross negligence. 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

07-0599 Retamco Operating Inc. v. Republic Drilling Co. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: James L. Drought, San Antonio For respondent: Douglas W. Alexander, Austin The Supreme Court will hear arguments on whether Texas has personal jurisdiction over Republic, a California company that acquired passive, non-operating mineral interests with a liability assumption for a pro rate share of operating and well-abandonment expenses. The issue arising from this fraud and contract action over royalties is whether Texas has personal jurisdiction over Republic, a California company that acquired passive, non-operating mineral interests with a liability assumption for a pro rate share of operating and well-abandonment expenses. Republic got the mineral interests from Paradigm Oil in transactions in California and Colorado while Retamco's fraud and breach-of-contrast suit was pending. Paradigm later declared bankruptcy. The trial court denied Republic's special appearance to challenge personal jurisdiction, but the appeals court 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

07-0783 Irving W. Marks v. St. Luke's Episcopal Hospital from Harris County and the First District Court of Appeals, Houston For petitioner: James Eloi Doyle and Kimberly Hoesl, Houston For respondent: Jennifer H. Davidow, Houston The Supreme Court will hear arguments on whether an extension-of-time motion to remedy an medical-malpractice expert's report is fatally late if filed after an initial hearing on the defendant's dismissal motion. In this case alleging a hospital patient was injured when part of a bed collapsed, principal issues are (1) whether the claims implicate health-care liability and, if the claim poses medical-malpractice, (2) whether an extension-of-time motion to remedy an expert's report is fatally late if filed after an initial hearing on the defendant's dismissal motion. In the hospital recovering from back surgery, Marks fell after the footboard of his bed gave way when he grabbed it to pull himself out of bed. Among its allegations, his suit complained that the hospital failed to properly train its staff caring for him, failed to provide him necessary assistance, failed to provide a safe environment and failed to assemble the bed properly. St. Luke's moved to dismiss the suit because no expert report was filed on time. The trial court dismissed and a divided court of appeals affirmed the dismissal. 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

07-0787 Spectrum Healthcare Resources Inc. and Michael Sims v. Janice and Patrick McDaniel from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Richard C. Harrist and Robert R. Biechlin, San Antonio For respondents: Jeffrey C. Anderson, San Antonio The Supreme Court will hear arguments in this health-care liability case involving an agreed docket-control order that established a time line for an expert report. The issue is whether that order extends the 120-day statutory deadline for an expert report. The trial court dismissed the complaint for failure to submit the report, but a divided court of appeals reversed en banc. In this health-care liability case involving an agreed docket-control order that established a time line for an expert report, the issue is whether that order extends the 120-day statutory deadline for an expert report. The McDaniels sued after Janice McDaniel fell during physical therapy. Less than two months after the suit was filed, the parties agreed to a schedule for designating expert witnesses and their reports outside the statutory limits and stipulating that the agreed order would take precedence over deadlines set by rule or statute. The trial court dismissed the complaint for failure to submit the report, but a divided court of appeals reversed en banc. 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

07-0123 Dennis L. Miga v. Ronald L. Jensen from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Jeffrey Levinger, Dallas For respondent: Warren W. Harris, Houston The Supreme Court will hear arguments on whether restitution is appropriate when judgment leading to a Rule 11 payment agreement is later reversed. The issue is whether restitution is appropriate when a party tenders payment under a Rule 11 agreement and the judgment leading to the agreement is later reversed on appeal. In this case Miga sued Jensen for breach of a stock-option agreement. He won a jury verdict, which the court of appeals affirmed. At that time Miga and Jensen agreed that Jensen would tender $23.4 million to the trial court to stem post-judgment interest. Under the agreement, Miga could withdraw from the account unconditionally. In an appeal of that judgment to this Court, the Court reversed for calculation of lost stock profits in the damages. Jensen then sued for restitution of the money tendered under the Rule 11 agreement. The trial court granted summary judgment for Jensen and a split 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

07-0760 Greg Tanner and Maribel Tanner v. Nationwide Mutual Fire Insurance Co. from Caldwell County and the 11th District Court of Appeals, Eastland For petitioners: Don R. Cotton, Austin For respondents: Chris Heinemeyer, San Antonio The Supreme Court will hear arguments on whether fleeing driver's hard braking before wreck during police chase voids willful conduct used to avoid insurance coverage. The issue in this insurance-coverage dispute resulting from a high-speed police chase is whether sufficient evidence exists to conclude that the fleeing driver engaged in willful and intentional conduct when he collided with the Tanners' car. When he hit the Tanners' car, the pursued driver was braking hard. The Tanners and their two children were injured and sued the driver, but Nationwide, which insured him, sued to declare the policy did not cover the accident because it resulted from willful and intentional conduct. Jurors found in favor of the Tanners, but the trial court held Nationwide had no duty to defend the driver or to indemnify him. 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

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

07-0240 Miguel Hernandez, M.D. v. Julious Ebrom and Richard Hunnicutt from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: I. Cecilia Garza, McAllen For respondents: Richard W. Hunnicutt, San Antonio The Supreme Court will hear arguments on whether failure to bring interlocutory appeal on dismissal denial waives the challenge. A principal issue in this medical-malpractice case is whether by failing to file an interlocutory appeal the defendant waived his challenge to the trial court's denial of his dismissal motion. The court of appeals held that it had no jurisdiction over Hernandez's appeal because he waited until after the plaintiff dropped the case and provided in the nonsuit that it could not be filed again. As amended, while this suit was pending in the trial court, the medical-malpractice statute stipulates that an interlocutory appeal may be taken from an order denying a dismissal motion. A key question is whether that provision is mandatory or permissive. 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

07-0520 Ed Vanegas, et al. v. American Energy Services, et al. from Midland County and the 11th District Court of Appeals, Eastland For petitioners: Allen R. Stroder, Odessa For respondents: Harper Estes, Midland The Supreme Court will hear arguments on whether promise is illusory to share future merger proceeds for at-will worker's staying with company. The issue is whether an alleged oral promise to share proceeds from a merger, conditioned on employees remaining with a young company, was illusory because the employees worked at-will and were subject to firing at any time. Vanegas and other employees sued AES for breaching a contract under which they claim AES promised them 5 percent of proceeds from selling the company if they would continue working for it until it was sold or merged. The trial court granted AES's summary-judgment motion. The court of appeals affirmed, holding that the contract, being illusory, could not be support the promised bonus because the company could fire the workers at any time. 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

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

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

07-0541 TXI Transportation Co., et al. v. Randy Hughes, et al. from Wise County and the Second District Court of Appeals, Fort Worth For petitioners: Reagan W. Simpson, Houston For respondents: Brian Stagner, Fort Worth The Supreme Court will hear arguments on whether evidence that driver in collision was illegal immigrant was properly admitted. The principal issues are (1) whether evidence that a truck driver involved in a fatal truck-SUV collision was an illegal immigrant was properly admitted for impeachment purposes; (2) whether the trial court improperly overruled a Batson challenge over the only Hispanic venireman struck; (3) whether the trial court improperly excluded defense testimony from a state trooper regarding a tire blowout that might have contributed to cause the accident or cell phone records showing an incoming call to the SUV driver at the time of the accident; and (4) whether the trial court improperly allowed claims for wrongful death of unborn children (the verdict on those claims was not included in the judgment). 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

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

06-1034 State of Texas v. George Lueck from Travis County and the Third District Court of Appeals, Austin For petitioners: Ryan Clinton, Dallas For respondent: Gregory C. Douglass, Austin The issues in this Whistleblower Act case are (1) whether Lueck, a Texas Transportation Department employee fired for questioning an outside vendor's contract termination, properly stated a claim under the act to confer jurisdiction on the trial court and (2) whether, if so, he properly reported violation of a state or federal law to an appropriate law-enforcement authority. 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

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

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

07-0490 Mann Frankfort Stein & Lipp Advisors Inc, et al. v. Brendan J. Fielding from Harris County and the First District Court of Appeals, Houston For petitioners: Warren W. Harris, Houston For respondent: Levon G. Hovnatanian, Houston Principal issues arising from this declaratory-judgment action are (1) whether a provision requiring an accountant to purchase clients if he left the firm was ancillary to his employment agreement and an enforceable covenant not to compete; (2) whether the Covenants Not to Compete Act preempts the plaintiff's attorneys fees claim; and (3) whether the client-purchase provisions are severable. 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

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

07-0970 Lauri Smith and Howard Smith v. Patrick W.Y. Tam Trust from Collin County and the Fifth District Court of Appeals, Dallas For petitioners: Robert D. Ranen, Plano For respondent: Scott Hayes, Dallas The principal issue is whether $47,000 in attorneys fees are reasonable when the judgment obtained was for $65,000, less than a third of what was sought. 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

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

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

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

07-0340 Spir Star AG v. Louis Kimich from Harris County and the First District Court of Appeals, Houston For petitioner: Sarah B. Duncan, Austin For respondent: Scott Rothenberg, Houston The issue is whether Texas has personal jurisdiction over a German manufacturer that allegedly does business in the state only though a Texas limited partnership exclusively selling its products in North and South America. In this case Kimich was injured when a defective high-pressure hose manufactured by Spir Star AG struck him. Kimich first sued his employer for premises liability, then Spir Star Ltd., the Texas partnership, and finally Spir Star AG, the manufacturer. The trial court denied the manufacturer's special appearance to contest personal jurisdiction. Holding in part on representations made on Spir Star Ltd.'s Web site, the court of appeals concluded that the manufacturer established Spir Star Ltd. in Texas and, doing so, brought itself under Texas 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

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

08-0136 John Kappus v. Sandra L. Kappus from Anderson County and the 12th District Court of Appeals, Tyler For petitioner: Logan Odeneal, Dallas For respondent: Richard E. Swift Jr., Palestine Principal issues are (1) whether an independent executor appointed by the trial court should be removed because the executor co-owns property with the estate the amount of which is subject to dispute and (2) whether the court of appeals erred by removing the executor as trustee of a testamentary trust. Sandra Kappus, the ex-wife of John Kappus's dead brother, sued on behalf of her sons. She claims that John Kappus's intended equal distribution of sale proceeds from a farm John and his brother jointly owned did not account for improvements the brother made to the property when they were married. After the brother's death, his will transferred his interest in the farm to a trust for his sons. The trial court calculated the share of proceeds due the trust at slightly less than 59 percent, instead of 50 percent, but refused to remove John Kappus as trustee because he jointly owned property with the trust. The court of appeals affirmed the trial court's calculation but removed Kappus as trustee because his adverse claim to the property created a conflict of interest. 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

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

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

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

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

08-0061 State of Texas v. Central Expressway Sign Associates, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Susan Desmarais Bonnen, Austin For respondents: Joe H. Staley Jr., Dallas, and Sydney Nell Floyd, Houston Among issues in this challenge to a condemnation award is whether expert testimony on billboard-advertising income and not just rental income to the landowner should have been be factored into the award. This action arose from the state's condemnation for a freeway-interchange expansion in North Dallas. Central Expressway Sign Associates leased its easement on the land for a billboard to a second company that erected the billboard and sold advertising on it. After the state acquired the land itself, special commissioners determined the value of the easement at slightly more than $2 million, to be divided among the interest-holders. The state challenged that award, but the trial court excluded its expert, who calculated the fair market value of the remaining interests at $360,000 by accounting for rental income to Sign Associates but not for Viacom's advertising sales. Jurors awarded $1.8 million after the trial court allowed testimony about advertising-sales income. The court of appeals affirmed. In this appeal, the state argues in part that its appraisal expert was improperly excluded, that his method accounted for the value of the easement and billboard lease as a whole and that advertising sales represented business income that should have been excluded. 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

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

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

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

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

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

08-0175 Whirlpool Corp. v. Margarita Camacho and Santos Camacho. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Lynne Liberato, Houston For respondent: Kevin Dubose, Houston Among principal issues in this product-liability case are (1) whether the court of appeals erred by failing to analyze expert testimony properly under a legal-sufficiency challenge, (2) whether expert testimony was improper because it was speculative on the safer alternative design and on the causation element; and (3) whether the trial court erred by failing to give a spoliation instruction because Whirlpool did not have notice of possible suit for three months despite plaintiffs' experts evaluating a home fire scene within two days of a fatal fire. In this case the Camachos sued after fire destroyed their trailer home and killed their son. They claim defective design of a clothes dryer allowed accumulated lint to be drawn to the dryer heater, where it ignited, then started clothes in the dryer afire and spread to the house. Whirlpool's challenge to the reliability of this theory, based on testing outside a dryer, was in part that the theory failed to explain that two T-shirts in the dryer did not burn. Whirlpool also complains that the Camachos had notice they would sue within days of the fire, but did not notify the company for several months, during which the fire scene was dismantled. 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

08-0262 Roy Kenji Yamada, M.D. v. Laura Friend, et al. from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Kevin Carey, Fort Worth For respondent: Jeff Kobs, Fort Worth The principal issues are (1) whether this action, claiming wrongful death because defibrillators were negligently placed and improperly used by employees of a municipal water park, should be considered a health care-liability claim and (2) whether the court of appeals erred by dividing allegations into health-care and ordinary negligence claims. In this case a 12-year-old girl collapsed at a municipal water park of a heart attack attributed to cardiac-muscle disease. Her parents sued the city then added Yamada, who provided consultant medical services to the water park, because park employees improperly used a defibrillator. Yamada moved to dismiss the claim against him, arguing that the girl's parents did not file an expert report as required in a health-care liability claim. He based that on a statutory definition of a health-care liability claim as one "for treatment, lack of treatment, or other claimed departure from accepted standards of medical care ... or safety or professional or administrative services directly related to health care...." The trial court denied the dismissal motion. On interlocutory review, the court of appeals affirmed the denial for claims it considered ordinary negligence and separated those from health-care liability claims that required an expert report. 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

08-0043 Timpte Industries Inc. v. Robert Gish and Pinnacol Assurance from Hale County and the Seventh District Court of Appeals, Amarillo For petitioner: Gary Bellair, Lubbock For respondents: James Hoyt Wood, Amarillo The principal issues in this product-defect case are (1) whether in its summary-judgment motion Timpte waived its no-evidence point by failing to address the requisite unreasonable danger element and, if not, (2) whether Gish presented enough evidence of a design defect that posed an unreasonable danger or of a safer alternative design. 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

08-0363 State Office of Risk Management v, Mary Lawton from Brazos County and the 10th District Court of Appeals, Waco For petitioner: Thomas M. Lipovski, Austin For respondent: Stuart F. Lewis, Bryan For amicus curiae Office of Injured Employee Counsel: Elaine Chaney, Austin The issue is whether the State Office of Risk Management waived its compensability contest arising from a purported work-related knee injury by failing to raise the challenge within the statutory 60-day deadline. In this case the state got a magnetic resonance image (MRI) of the injured knee within a month of the injury but contested compensability only after a medical review determined the knee was subject to a degenerative disease. 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

07-0205 Waffle House Inc. v. Cathie Williams from Tarrant County and the Second District Court of Appeals, Fort Worth For petitioner: Mark Emery, Washington, D.C. For respondent: Susan E. Hutchison, S. Rafe Foreman, Grapevine The issues are (1) whether the court of appeals erred in its definition of the duty owed by Waffle House to an employee in a negligent supervision and retention suit based on sexual harassment allegations and (2) whether legally sufficient evidence supported the jury's 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

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: Renee 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

Justice O'Neil is not sitting. 08-0390 MBM Financial Corp. and Marimom Business Systems Inc. v. The Woodlands Operating Co., L.P. from Montgomery County and the Ninth District Court of Appeals, Beaumont For petitioner: Jennifer Bruch Hogan, Houston For respondent/cross-petitioner: Karen D. Smith, The Woodlands Among principal issues are (1) whether the court of appeals erred by reversing an attorneys-fees award for a breach-of-contract allegation for which nominal damages were awarded; (2) whether the appeals court erred by determining attorneys fees were proper in a declaratory relief action; and (3) whether the court erred by failing to award fees for a fraud claim that arose from the contract 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

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

08-0444 Myrad Properties Inc. v. LaSalle Bank National Association from Bell County and the Third District Court of Appeals, Austin For petitioner: Miguel S. Rodriguez, Austin For respondents: Keith M. Aurzada, Dallas In this action to set aside a property sale following foreclosure the principal issues are (1) whether the foreclosure notice was sufficient, given that two properties were subject to foreclosure but only one was described, and (2) whether a correction deed may be used to add an additional property following a foreclosure sale. Myrad sued to declare its ownership in the larger of two apartment complexes supposedly conveyed by the foreclosure sale, arguing that the larger complex was not described in the foreclosure notice and that its indebtedness was satisfied by the foreclosure-sale proceeds. LaSalle, which held the note and bid at the sale, filed a corrected deed that included both apartment complexes in the sale. The trial court ruled for LaSalle, declaring the sale conveyed both properties and holding the correction deed valid. 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

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

Justice Willett not sitting 07-1050 Zachry Construction Corp., et al. v. Texas A&M University from Brazos County and the 10th District Court of Appeals, Waco For petitioners: Ben Taylor, Dallas For respondent: James C. Ho, Austin In this case arising from the 1999 Texas A&M bonfire collapse principal issues involve third-party claims against the university: (1) whether, if sovereign immunity has been waived on liability, waiver also must be necessary for a derivative contribution claim against the university; (2) whether Texas A&M's immunity is waived by use of university property for the bonfire construction under the Tort Claims Act's tangible personal or real property provision; (3) whether Texas A&M had actual notice of a premises defect; and (4) whether, if immune, the university's proportionate responsibility can be determined if it is not joined in the lawsuit. The trial court denied Texas A&M's jurisdictional plea, but the court of appeals reversed and dismissed the claims against the university. Since the Court granted the petition, A&M has argued it should be dismissed after the university settled with all injured plaintiffs last fall. 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

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

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

08-0148 Regal Finance Co. Ltd. and Regal Finance Co. II Ltd. v. Tex Star Motors Inc. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Russell S. Post, Houston For respondent: Eugene B. Wilshire, Houston A principal issue is whether the Uniform Commercial Code's provision governing a secured creditor's sale of collateral requires compliance with industry practice as proof that the sale is commercially reasonable. In this case Regal sued Tex Star, a used-car dealer, to collect the deficiency between the amount it got from selling repossessed cars and the outstanding amount owed on the car-loan notes Regal bought from Tex Star. Regal's agreement to buy notes from Tex Star obligated Tex Star to pay the unpaid balance on a defaulted note. This lawsuit arose from a dispute over which company was responsible for assuring a reserve account a bank required. The trial court awarded damages to Regal, but the court of appeals reversed, holding that Regal presented insufficient evidence that it sold the repossessed cars in a commercially reasonable way. 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

08-0169 Tangie Walters v. Cleveland Regional Medical Center, et al. from Harris County and the First District Court of Appeals, Houston For petitioner: Christopher Bradshaw-Hull, Houston For respondents: Diana L. Faust, Dallas, and Richard Sheehy, Houston The issue is whether the Texas Constitution's open-courts provision cancels the statute of limitations on a medical-malpractice claim based on a sponge left in a patient's abdomen 10 years before a doctor finally discovered it. Walters sued, seeking in part damages for medical bills she paid over the years because of pain she suffered as doctors misdiagnosed the source. The trial court granted summary judgment for the medical center, surgeon and nurse, based on the two-year limitations on a med-mal claim. The court of appeals affirmed. Walters argues that the constitution requires she knew or should have known of her injury before the limitations period ends to show the statutory limitation is arbitrary or unreasonable. The defendants counter that an open-courts claim requires an impossibility-to-know or exceedingly difficult-to-discover standard before the constitution overrides the limitations period. 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

08-0316 Methodist Healthcare System of San Antonio Ltd., L.L.P. v. Emmalene Rankin from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Carl Robin Teague and Rosemarie Kanusky, San Antonio For respondent: R. Brent Cooper, Dallas The principal issue is whether the 10-year statute of repose on medical-malpractice claims violates the Texas Constitution's open-courts provision when Rankin discovered a sponge had been left i her abdomen almost 11 years after surgery. In the trial court the defendants got summary judgment, based on the statute of repose. But the court of appeals declared the repose unconstitutional, reasoning that the statute deprived Rankin of her right to compensation before she had a reasonable opportunity to discover the injury. 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

(Justice Hecht not sitting) 08-0172 Texas Comptroller of Public Accounts v. Attorney General of Texas and The Dallas Morning News from Travis County and the Third District Court of Appeal, Austin For petitioner: Jack Hohengarten, Austin For cross-petitioner/respondent Dallas News: Paul C. Watler, Dallas For respondent Attorney General of Texas: Brenda K. Loudermilk, Austin The issues in this open-records challenge are (1) whether common-law privacy exempts state employees' birth dates from disclosure under the Texas Public Information Act and (2) whether the newspaper, as intervenor, is entitled to attorneys fees under the act or under the Uniform Declaratory Judgment Act. In this case the comptroller sued the attorney general after it ruled that birth dates must be disclosed under the Public Information Act. The trial court granted the attorney general's summary-judgment motion and the court of appeals affirmed. As petitioner, the comptroller argues that the information should be exempt from the public-records law based on the privacy tort for intrusion upon seclusion. 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

08-0215 University of Texas Southwestern Medical Center at Dallas v. Estate of Irene Esther Arancibia from Dallas County and Fifth District Court of Appeals, Dallas For petitioner: Daniel L. Geyser, Austin For respondents: Lance Caughfield, Dallas A principal issue is whether a claim notice as a jurisdictional prerequisite to an action under the Texas Tort Claims Act, imposed by a 2005 amendment, applies retrospectively to this claim based on a death in 2003. In this case Arancibia's estate sued after she died days after surgery, during which a surgeon perforated her bowel. Southwestern Medical Center moved to dismiss the suit, on a jurisdictional plea based in part on the estate's failure to give notice of the suit within six months of the occurrence. Her estate argues that Southwestern had actual notice because of an investigation after the death. The trial court denied Southwestern's plea, rejecting its sovereign immunity claim and that it did not have notice. The court of appeals affirmed, holding that the 2005 amendment did not apply retrospectively to the 2003 surgery. 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

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

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

08-0421 State of Texas v. Public Utility Commission of Texas from Travis County and the Third District Court of Appeals, Austin For petitioners: Jonathan Day, Austin, and Alton J. Hall Jr., Houston For petitioners CenterPoint and Texas Genco: Thomas R. Phillips, Gregory S. Coleman, Austin For respondent: Elizabeth Sterling, Austin One principal issue in this challenge under the Public Utility Regulation Act is whether state utility commissioners properly rejected the "stranded costs" calculation for a power-generating company spun off from the parent utility. In this case CenterPoint, a Houston-based power company, established stranded costs - the difference between market value of the utilities' assets and their book value - based in part on stock in the new generating company it transferred to its own shareholders. State utility commissioners rejected the companies' partial-stock valuation method because the stock was not sold in a public offering, as the commission contends the electricity-deregulation law required. The utilities argue that market value could be established by share prices on stock that later sold. The state agrees that the partial-stock method failed to meet statutory requirements, but maintains the utility commission modified what the statute required to calculate the utilities' stranded costs. 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

08-0727 Texas Industrial Energy Consumers v. CenterPoint Energy Houston Electric LLC and Public Utility Commission of Texas from Travis County and the Third District Court of Appeals, Austin For petitioner: Lino Mendiola and Jonathan Day, Austin For respondent CenterPoint: Ron Moss, Austin For respondent Public Utility Commission: Brian A. Prestwood, Austin In this electric-deregulation appeal the principal issues are (1) whether state utility commissioners had authority under the Public Utility Regulation Act to award more than 11 percent interest over 14 years on so-called competition transmission charges used to recover stranded costs from consumers and (2) whether the Public Utility Commission exceeded its authority by allowing a utility to pass along to consumers costs to assess its market value after deregulation. Central to the first issue is whether CenterPoint Energy Inc. v. Public Utility Commission (Tex. 2004) invalidated in its entirety the statutory provision allowing interest to be recovered on the uncollected competition transmission charges. As to the second issue, the PUC allowed the pass-through of valuation costs despite statutory language that such costs should be borne by the 'transferee utility." 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

08-0419 University of Texas Health Science Center at San Antonio v. Kia Bailey and Larry Bailey from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Michael P. Murphy, Austin For respondents: Steven E. Aldous, Dallas The issue is whether an amended medical-malpractice petition naming a state medical-school hospital relates back to the original filed against a doctor, a hospital employee, who successfully moved for substitution or dismissal after limitations had run. In this case the Baileys sued the doctor for malpractice in his individual capacity. More than a year after they filed the suit, and several months after the two-year limitation on filing suit, the doctor moved for dismissal under a Texas Tort Claims Act provision. That provision - section 101.106(f) - considers a public employee sued for job-related conduct to be acting in his official capacity and allows him to be dismissed from the suit and the governmental entity substituted instead. Section 101.106(f) does not mention the common-law relation-back doctrine. The trial court dismissed the suit, 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

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

08-0465 State of Texas v. $281,420 in U.S. Currency from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Timothy A. Davis, Edinburg For amicus curiae Solicitor General: Sean D. Jordan, Austin For respondent: Edward A. Mallett, Houston The issues in this forfeiture case are (1) whether money found bundled in plastic and secreted in a truck axle can be determined to be contraband in the absence of more than suspicious circumstances and, if not contraband, (2) whether the last person in control of the truck should get the money if all potential owners lost their interests by default judgments. Huerta, a tow-truck driver who was hired to bring a truck tractor from Houston to the Rio Grande Valley, sued to intervene in this forfeiture action. Huerta said he was promised a 30 percent finder's fee of more than $281,000 he discovered in the truck axle and turned over to state authorities. The state claimed the money as drug-related contraband. A jury found that the money was not contraband, that Huerta was in joint or actual possession of it when it was seized and that he should get a $70,000 reward. The trial court overturned that verdict, giving all the money to the state. The court of appeals reversed and awarded Huerta the money. 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

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

08-0613 Nafta Traders Inc. v. Margaret A. Quinn from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Alan L. Busch, Dallas For respondent: Janette Johnson, Dallas The principal issues are (1) whether the Federal Arbitration Act preempts the Texas arbitration statute on expanded judicial review if the federal act applies to an arbitration clause in this case and, if the Texas Arbitration Act is applicable, (2) whether under the state act parties can agree to limit an arbitrator's scope of authority or expand judicial review of an arbitration award. In this case Nafta challenged a $200,000 arbitration award to Quinn on her age- and sex- discrimination and retaliation claims. An arbitration provision in the company's employee handbook barred arbitration awards that contained reversible legal error or that applied a cause of action or remedy not expressly provided by law. Quinn argues that federal arbitration law controls, which, under Hall Street Associates v. Mattel, does not allow judicial review to be expanded by agreement beyond what the statute provides. The trial court confirmed the arbitration award for Quinn. The court of appeals held that Hall similarly restricted the Texas Arbitration Act. 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

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

(Justice Guzman not sitting) 08-0658 Carroll Robinson, et al. v. Bill White, City of Houston and Houston City Council, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Andy Taylor, Houston For respondents: Scott J. Atlas, Houston The principal issues are (1) whether proponents who drafted and campaigned for a proposition and voted for it have standing to sue to declare it effective and, if so, (2) whether a "poison pill" provision associated with a competing proposition violates state law. In this case Robinson drafted and promoted Proposition 2, for a city revenue cap, which Houston voters approved in 2004 but by a smaller margin than a proposition for a property-tax revenue cap on the same ballot. The City Council refused to adopt Proposition 2 because of a provision associated with Prop 1, that among inconsistent propositions the proposition approved by most voters would prevail, and because of a similar City Charter provision. The trial court granted summary judgment to Robinson and the other Prop 2 organizers, but the court of appeals reversed and dismissed their claims, holding the organizers did not have standing. 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

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

08-0669 Dan Kelly and Laura Hofstatter v. General Interior Construction Inc. from Harris County and the 14th District Court of Appeals, Houston For petitioners: David C. Holmes, Houston For respondent: Ross A. Sears II, Houston In this jurisdictional challenge the principal issues are (1) whether Texas contacts to establish personal jurisdiction should be limited to pleadings that did not allege a disputed contract was a contact for a fraud claim or for Texas Trust Fund Act violations by the officers individually and (2) whether asserting jurisdiction over the corporate officers complies with federal due process and the Texas long-arm statute. In this case General Interior Construction, a Texas company, sued Kelly and Hofstatter over alleged payments due from Kelly and Hofstatter's general-contracting business incorporated in Arizona. Their company agreed with another Arizona firm for improvements to a Texas hotel the other firm owned. GIC alleged breach of contract, fraud and misappropriation of trust money Kelly and Hofstatter's firm held for paying subcontractors. The trial court found specific jurisdiction existed to require Kelly and Hofstatter to defend in Texas against all claims, but the court of appeals reversed on the contract-breach claim, based on Kelly and Hofstatter's signing the contract as corporate officers. 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

07-0945 Texas Parks and Wildlife Department v. The Sawyer Trust from Donley County and the Seventh District Court of Appeals, Amarillo For petitioner: Kristofer S. Monson, Austin For respondent: Jody Sheets, Dallas This dispute over a mining permit to take sand and gravel from what the state contends is a navigational stream bed raises these principal issues: (1) whether the state's jurisdictional immunity plea fails because the trust alleges the state is unconstitutionally "taking" its property and, if not, (2) whether state officials must be sued instead of the state itself. In this case the trust seeks to sell sand and gravel from the bed of the Salt Fork of the Red River traversing its property. By statute the state, through the parks department, owns sand and gravel in a navigable river streambed. The trust sued first to declare the Salt Fork at that point was not navigable, then added the takings claim. The trial court denied the state's jurisdictional plea 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

08-0799 State Farm Lloyds and Erin Strachan v. Wanda M. Page from Johnson County and the 10th District Court of Appeals, Waco For petitioners: Levon G. Hovnatanian, Houston For respondent: John F. Melton, Austin Principal issues in this mold-coverage case are (1) whether the standard Texas homeowners policy provides coverage for mold damage to a dwelling resulting from plumbing leaks; or (2) whether it provides mold-damage coverage for personal property in the dwelling; or (3) whether it provides coverage for both. Page sued State Farm for its refusal to replace her carpet after it repaired mold damage in her house and personal belongings. An underlying question is whether an exclusion-repeal provision in one policy part acts to override a mold exclusion in another part. The trial court granted summary judgment for State Farm, but the appeals court 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

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

(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

(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

(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

08-0970 Scott and White Memorial Hospital, et al. v. Gary and Linda Fair from Bell County and the Third District Court of Appeals, Austin For petitioners: Stuart Smith, Waco For respondents: Rick Bostwick and Rick Brophy, Waco In this slip-and-fall case the principal issue is which rule should be applied to determine premises liability when an invitee falls on naturally occurring ice. Gary Fair sued the hospital for injuries he suffered when he fell in an ice-covered parking lot the morning after a storm. Scott and White argues for the "Massachusetts rule" that would not impose liability. The Fairs argue for the "Connecticut rule" requiring due care to eliminate ice as a hazard. The trial court granted Scott and White summary judgment, but the appeals court reversed, holding that the hospital did not meet its burden to show the ice was in its natural condition. 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

08-0523 Texas Lottery Commission v. First State Bank of DeQueen, et al. from Travis County and the Third District Court of Appeals, Austin For petitioner: James C. Ho, Austin For respondents: Jeffrey S. Boyd, Austin The issue is whether the Uniform Commercial Code (UCC 9.406(f)) makes ineffective the Texas Lottery Act's prohibition on a winner's assigning his final two annual payments. In this case Irvan, who won $9 million in the lottery in 1995, assigned all but the last two payments of his prize after the Legislature changed the lottery law in 1999. That amendment allows assignment of all annual payments but the last two. Then in 2006 he assigned the last two payments to pay a bank debt, for which he and the bank got approval from an Arkansas court. When the lottery commission refused to recognize the Arkansas court order, the bank sued in Texas to declare the UCC, which allows assignments, to render the lottery act restriction ineffective. First State Bank won a partial summary judgment, which the appeals courts 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

(Justice Guzman not sitting) 08-0551 State of Texas v. Charles Lynn Brownlow and Marlene H. Brownlow from Brazoria County and the 14th District Court of Appeals, Houston For petitioner: Lisa Marie McClain, Austin For respondents: Bud Arnot, Houston The issue is whether the Department of Transportation's permanent easement for a water-detention pond adjacent to a widened highway allows the state to excavate soil from the easement for highway work miles away. Claiming inverse condemnation, the Brownlows sued the state for unconstitutionally taking their property, arguing they owned the dirt. Their permanent easement resulted from an earlier challenge to the state's effort to take a fee-simple interest in their land. The trial court dismissed the Brownlows' suit on the state's jurisdictional plea. The court of appeals reversed, holding the state did not have sovereign immunity because the easement did not transfer the soil's ownership from the Brownlows to the state. 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

09-0100 Travis Central Appraisal District v. Diane Lee Norman from Travis County and the Third District Court of Appeals, Austin For petitioner: Jennifer Archimbaud Powell, Austin For respondent: R. Scott Clark, Austin The principal issues are (1) whether the Labor Code provision interpreted to allow a public employee the right to sue on a workers-compensation retaliation claim should be re-examined or limited and (2) whether a public employee alleging retaliatory discharge in a workers-compensation dispute must exhaust administrative remedies before suing. The appraisal district argues that City of LaPorte v. Barfield, 898 S.W.2d 288 (Tex. 1995), holding that Texas Labor Code chapter 451 waives immunity for retaliatory discharge actions against political subdivisions, should be overturned because chapter 451 does not clearly and unambiguously waive sovereign immunity. And Barfield does not apply, the district contends, because Barfield addresses immunity from liability and not from suit, as this case. The trial court denied the appraisal district's jurisdictional plea. 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

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

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

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

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

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

08-0958 Presidio Independent School District v. Robert Scott, Commissioner of Education from Travis County and the Third District Court of Appeals, Austin For petitioner: Ken Slavin, El Paso For respondent: Daniel F. Geyser, Austin The principal issue is whether the education commissioner must consent to the school district's appeal to Travis County district court, under Education Code section 21.307(a), of the commissioner's reinstatement decision in a disciplinary action. In this case a Presidio school district employee fired by the district won reinstatement when he appealed his termination to the commissioner. With the employee's consent, the Presidio district sought review of the commissioner's decision in Travis County district court under section 21.307(a), which provides for review in Travis County if "all parties" consent. In a plea to the jurisdiction, the commissioner argued that his lack of consent robbed the district court of jurisdiction to hear the appeal. The district court denied the commissioner's plea and 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

08-1003 Kirby Lake Development Ltd., et al. v. Clear Lake Water Authority from Harris County and the 14th District Court of Appeals, Houston For petitioners: Lawrence J. Fossi, Houston For respondent: Ramon J. Viada III, The Woodlands The principal issues are (1) whether governmental immunity bars developers' contract claims alleging the water authority failed to seek bond approval for reimbursing the developers' water- and sewer-installation costs and, if not, (2) whether the water authority's failure to place the reimbursement issue on one bond ballot breached the reimbursement agreement. Kirby Lane and other developers sued the water authority for failing to seek voter approval for a bond proposal to pay developers for the water and sewer work under an agreement. After two bond issues for reimbursing developers failed, the water authority won voter approval for bonds that did not specifically call for purchasing the water and sewer facilities. The trial court granted summary judgment for developers, denying the jurisdictional plea. The appeals court reversed in part and rendered judgment against the developers, holding that the water authority did not have immunity but that the contract was not breached. 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

(Justice Willett and Justice Guzman not sitting) 09-0073 Merck & Co. Inc. v. Felicia Garza, et al. from Starr County and the Fourth District Court of Appeals, San Antonio For petitioner: Stephen G. Tipps, Houston For respondents: Kevin Dubose, Houston A principal issue is whether clinical-testing evidence showing a less-than-double risk in the general population, combined with other evidence, can legally prove toxic-injury causation under Havner's more-likely-than-not reliability standard. Garza sued Merck after her husband, who had a history of heart ailments, died of rare simultaneous arterial clots after taking Vioxx prescribed by his cardiologist. Merck challenged as legally insufficient Garza's expert testimony in a motion to disregard the jury verdict for Garza. The court of appeals initially reversed and rendered judgment for Merck, holding that Garza did not refute with reasonable certainty that her husband's pre-existing heart condition was a plausible cause of death. On rehearing, the appeals court held that Garza's expert testimony met Havner's requirements. 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

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

(Justice Guzman not sitting) 09-0005 Transcontinental Insurance Co. v. Joyce Crump from Fort Bend County and the 14th District Court of Appeals, Houston For petitioner: David Brenner, Austin For respondent: Peter M. Kelly, Houston A principal issue is whether "producing cause" in a workers compensation death-benefits determination must meet the definition for producing cause established in Ford Motor Co. v. Ledesma (a 2007 products-liability case) - a cause that, in a natural sequence, produces a result (in this case, death) and without which the result would not have occurred. Another issues is whether a treating physician's expert testimony based on "differential diagnosis" was reliable. In this case Crump won death benefits under workers compensation for her husband's death after Transcontinental contested her claim. Transcontinental argued that the work-related injury, a knee contusion, was not the producing cause of several complications that led to Mr. Crump's death because those complications related to Crump's being prone to infection following a kidney transplant 15 years before. A jury determined the knee injury was the producing cause of death. 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

(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

09-0159 Samuel Garcia Jr., M.D. v. Maria Gomez, et al. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: I. Cecilia Garza, McAllen For respondents: Savannah L. Robinson, Danbury The principal issue is whether an attorney's unchallenged testimony as to what he would have charged in a case, without more, legally supports an attorneys-fee sanction for filing a medical-malpractice claim without an expert report. Gomez first sued Garcia for medical malpractice, based on Dr. Garcia's alleged failure to use a screen during surgery to prevent an embolism. The patient died after an embolism. When an X-ray revealed such a filter had been implanted, Gomez quit pursuing the claim, but did not nonsuit the case and did not file an expert report by the 120-day deadline. Garcia moved for attorneys fees under Texas Civil Practices and Remedies Code section 74.351(b). Garcia's attorney testified without challenge as to reasonable fees in such a case. The trial court denied the motion for sanctions and 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

09-0313 Terri Loftin v. Janice Lee and Bob Lee from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Robert T. Cain Jr., Lufkin For respondents: Douglas J. McCarver, Nacogdoches Principal issues are (1) whether liability for alleged negligence in a horseback-riding accident is barred under the Texas Equine Activity Act and (2) whether a fact issue exists as to the horse owner's reasonable and prudent effort to determine the rider's ability to safely ride and manage the horse she rode. The Lees sued Loftin for Janice Lee's injuries when the horse she was riding bolted in a muddy bog and threw Lee. Lee alleged the horse panicked when it sank in the mud and Loftin was negligent in conducting the trail ride through the bog. The trial court granted Loftin summary judgment, based on the equine safety statute. But the court of appeals found fact issues existed as to whether inherent risks to horseback riding included riding on a muddy trail and whether Loftin properly assessed Lee's riding ability under the circumstances. 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

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

09-0269 Jefferson State Bank v. Christina C. Lenk from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Ellen B. Mitchell, San Antonio For respondent: S. Mark Murray, San Antonio Principal issues in this case involving estate funds paid to an imposter administrator are (1) whether a bank can rely under the Probate Code on fraudulent administration letters to give the imposter administrator access to the decedent's account without liability and (2) whether the bank's making bank statements available started time running to bar any action on an unauthorized transaction. In this case an administrator for two estates sued for money a onetime Bexar County probate clerk took from the estates using fraudulent letters of administration. The bank argues that the letters were "facially valid" and protected it from liability and bank statements were given by a receiver to the court-appointed administrator more than a year before she demanded payment from the bank. The bank contends that her payment demand was beyond the Uniform Commercial Code's one-year repose period. The trial court granted summary judgment for the bank. 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

08-0941 The Travelers Insurance Co. v. Barry Joachim from Lubbock County and the Seventh District Court of Appeals, Amarillo For petitioner: Christopher B. Slayton, Lubbock For respondent: Stace Williams, Lubbock The issue is whether, after a nonsuit, the trial court's order dismissing a case with prejudice for failing to prosecute it is a final-merits determination that bars a later suit. In this case Travelers sought to dismiss Joachim's second suit against it because the trial court in the first suit dismissed that one in an order barring refiling. Travelers argues that dismissal of the first suit with prejudice, though otherwise improper, became a decisions on the merits when Joachim failed to challenge it. Instead of challenging the order in the first suit, Joachim filed an identical claim in a second court. After the trial court initially denied Travelers' summary-judgment motion, based on res judicata, another judge on reconsideration granted the motion. The court of appeals reversed, holding that dismissal of a case for want of prosecution was not a merits determination and could not be ordered with prejudice. 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

08-0964 Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel from Atascosa County and the Fourth District Court of Appeals, San Antonio For petitioner Edwards Aquifer Authority: Pamela Stanton Baron, Austin For petitioner State of Texas: Kristofer S. Monson, Austin For cross-petitioners/respondents: Tom Joseph, San Antonio Principal issue are (1) whether landowners within the Edwards Aquifer boundaries own the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwards Aquifer Authority. This appeal arises from Day and McDaniel's challenge to the aquifer authority's limited irrigation permit to pump water from a reservoir on their property. In an appeal from the aquifer authority's permit ruling, the trial court sided with Day and McDaniel, deciding that the reservoir water was aquifer water subject to the authority's control. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was "state water" subject to state regulation. 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

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

08-1066 Michael T. Jelinek, M.D., and Columbia Rio Grande Healthcare, L.P. v. Francisco Casas and Alfredo DeLeon Jr. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner Jelinek: I. Cecilia Garza, McAllen For petitioner Columbia: Sarah B. Duncan, Austin For respondents: John N. Mastin, San Antonio Principal issues are (1) whether the hospital preserved error in this medical-malpractice case when the claimed error concerns an instruction that is not in the record and (2) whether an expert report assessing the doctor's alleged negligence was inadequate for inferring support for the care standard and for causation. After first suing for wrongful death, Casas amended the petition to claim suffering and mental distress because his wife, after bowel surgery for a perforated colon and with a known infection, did not get antibiotics for four days because the hospital did not automatically renew her prescription. At one point in this lapse odor from the infection was so great fans were used to dissipate it. At trial, the hospital contends, it offered an "unavoidable accident" instruction that the court denied. But the instruction was not in the record. Jelinek, who prescribed the antibiotics but was on vacation when the prescription expired, argues that the expert report did not address how his deviation from the applicable care standard proximately caused Mrs. Casas' suffering and mental distress. The appeals court affirmed a jury award for Casas, holding that the claimed instructional error was not preserved, and affirmed the trial court's ruling that the expert report on Jelinek's alleged negligence was adequate. 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

09-0236 State of Texas v. K.E.W. from Galveston County and the First District Court of Appeals, Houston For petitioner: Donald S. Glywasky, Galveston For respondent: Thomas W. McQuage, Galveston The principal issue in this challenge to an involuntary commitment order was whether the appeals court correctly applied the clear-and-convincing standard to assess likelihood of serious harm to others. K.E.W., suffering schizophrenia and at times agitated, came to a mental-health clinic looking for a specific staff member whom he said he wanted to impregnate. Aliens implanted a computer chip in him, he explained, because he was chosen to populate a new human race. The trial court ordered him committed, but the appeals court held that his talk without more than agitation was not an overt act that was clear and convincing evidence of serious harm to himself or others. The state argues that the court of appeals only needed to find a scintilla of evidence to support the commitment order and not an elevated review standard. 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

(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

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

(Justice Green not sitting) 09-0048 MCI Sales and Service Inc. and Motor Coach Industries Mexico, S.A. de C.V. v. James Hinton from McLennan County and the 10th District Court of Appeals, Waco For petitioners: Thomas C. Wright, Houston For cross-petitioner/respondent: Craig T. Enoch, Austin, and Thomas K. Brown, Houston The principal issues in this suit involving a bus crash near Waco are (1) whether federal law preempts design-defect claims - that seatbelts should have been provided for bus passengers and laminated glass should have been installed on the bus - and (2) whether the trial court abused its discretion by refusing to submit the bus owners as a "settling party." Hinton sued the bus owners and its driver as well as the company that sold the bus, MCI, and the manufacturer, Motor Coach Industries, over a 2003 accident that killed seven people. Two months after the accident, the bus owners filed for bankruptcy, leaving insurance to be distributed by the bankruptcy court. MCI, tried on design-defect claims, tried to join the bus owners as responsible third parties and, when the trial court refused that, attempted to have the jury assess the owners' proportionate liability as either responsible third parties or settling parties. The trial court rejected that. The court of appeals held that federal regulations did not preempt the design-defect claims, but reversed on the trial court's refusal to submit the proportionate-liability question. 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

09-0223 Sharyland Water Supply Corp. v. City of Alton, et al. from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: J.W. Dyer, McAllen For respondents: Stephen L. Tatum, Fort Worth, and Eileen M. Leeds, Brownsville Principal issues in this contract and negligence case, involving Sharyland's complaint that the city's sewer contractors violated state regulations for sewer- and water-line separation, are (1) whether those regulations (Texas Administrative Code section 317.13(1)(B)) apply to these sewer lines connecting lots to sewer mains; (2) whether the economic-loss rule bars Sharyland's negligence claim against the contractors; and (3) whether Sharyland is a third-party beneficiary of Alton's contract with the sewer-line installers. In this case Sharyland sued the city and the city's sewer-line contractors after discovering sewer lines placed above its water lines allegedly violating state regulations. Sharyland argues that it should not have to wait for sewer leakage to contaminate its water before suing for damages that would include remediation costs and loss of value to a once-legal water supply system. Alton and the sewer contractors argue that the administrative regulations do not cover the sewer lines in question because those regulations do not apply to individual connections to the sewer mains. 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

08-1049 University of Texas at El Paso v. Alfredo Herrera from El Paso County and the Eighth District Court of Appeals, El Paso For petitioner: Sean D. Jordan, Austin For respondent: John P. Mobbs, El Paso In this complaint that the university violated the Family and Medical Leave Act, a principal issue is whether Congress abrogated the state's sovereign immunity under a provision that allows leave for an employee's serious health condition ("self-care" leave provision). The argument in part depends on whether Nevada Department of Human Resources v. Hibbs, holding that Congress annulled state immunity in the family-leave act's separate "family-care provision," extends to the statute's self-care provision. UTEP argues in part that Congress acted under the commerce clause in enacting the self-care provision, a basis that cannot authorize abrogation of state sovereign immunity. The trial court denied the university's jurisdictional plea. Relying on Hibbs, the court of appeals affirmed. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

09-0446 Debbie Stockton v. Howard A. Offenbach, M.D. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Robert J. Talaska, Houston For respondent: Michael Alan Yanof, Dallas For amicus curiae Texas Trial Lawyers Association: Peter M. Kelly, Houston A principal issue is whether a due-diligence exception should be applied to toll the 120-day deadline for serving a medical-malpractice expert report when the defendant could not be located before the deadline. In this case Stockton filed suit against Offenbach, alleging his failure to recommend and perform a cesarean section caused her son's permanent arm injury when he was born in 1989. Despite numerous attempts to locate Offenbach to serve process, and an effort to effect service by publication, Stockton got court permission to use substitute service only after the statutory deadline for serving her expert report. Offenbach appeared a week after publication service and moved to dismiss. The trial court denied his motion. The appeals court reversed with instructions to render judgment for Offenbach. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0497 Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water and James G. Popp from Travis County and the Third District Court of Appeals, Austin For petitioner Railroad Commission: Daniel L. Geyser, Austin. For petitioner Pioneer Exploration: David B. Gross, Austin For respondents: Marisa Perales, Austin The issue is whether the Railroad Commission abused its discretion by failing to consider factors other than conservation and water pollution when determining whether an injection-well permit would be in the "public interest" under Texas Water Code section 27.051(b)(1). Popp and the Safe Future and Clean Water group sued the Railroad Commission over an injection-well permit it approved for oil- and gas-well waste without considering plaintiffs' uncontested public-interest evidence. That evidence purported to show large trucks hauling drilling waste and salt water to the injection well would be hazardous to other vehicles on narrow, winding gravel roads and endanger children and adults who walked on them. Injection wells are regulated by the Texas Environmental Quality Commission, if the waste to be injected does not come from an oil or gas well, and the Railroad Commission, if it does. On appeal from the commission, the trial court affirmed the commission's permit approval. The court of appeals reversed, holding that the public-interest factor's scope must be broader than the effect on oil and gas production. 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

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

08-0751 Texas Mutual Insurance Co. v. Timothy J. Ruttiger from Galveston County and the First District Court of Appeals, Houston For petitioner: Pete Schenkkan, Austin For respondent: Byron C. Keeling, Houston Among principal issues in this workers-compensation case alleging bad faith under the Insurance Code and common law are (1) whether an injury became an independent injury under Aranda v. Insurance Company of North America when it was aggravated because the insurer initially refused to cover it; (2) whether the worker exhausted his administrative remedies when the parties entered a "benefit dispute agreement" that the injury was covered; (3) whether lawsuits allowed under the Insurance Code apply to workers-compensation claims; and (4) whether common-law duties of good faith and fair dealing were abolished by post-Aranda Labor Code amendments. In this case Ruttiger sued after he was denied workers-comp benefits for a hernia he claimed he suffered when lifting heavy objects at work. Texas Mutual decided to investigate the claim after Ruttiger's boss, who initially signed his workers-comp claim, later told the insurer she heard Ruttiger suffered the injury playing softball. Without investigating more, the insurance company adjustor denied Ruttiger's claim. In the first-stage administrative review of the denied claim, Ruttiger and Texas Mutual agreed on a "benefit dispute agreement" that paid him benefits. The trial court awarded damages on Insurance Code violations and gave alternative remedies on common law and Deceptive Trade Practices Act claims if the Insurance Code remedies failed on appeal. 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

(Justice Hecht not sitting) 08-1056 TGS-NOPEC Geophysical Co. v. Susan Combs and Greg Abbott from Travis County and the Third District Court of Appeals, Austin For petitioner: James T. McBride, Houston For amicus curiae WesternGeco LLC: Thomas R. Phillips, Austin, and Renn G. Neilson, Dallas For respondents: Kevin D. Van Oort, Austin The principal issues in this franchise tax dispute are (1) whether the company's income from selling its geophysical and seismic data constitutes receipts from a use of a "license" under Tax Code section 171.103 and (2) whether the comptroller abused its discretion by determining the licenses' place of "use" by the customers' mailing or billing addresses. TGS, which collects subsurface geophysical and seismic data worldwide, sued the state comptroller for assessing higher franchise taxes on its gross receipts and charging penalties and interest for underreported and underpaid taxes from its data sales. TGS argues that its gross receipts from the data sales result from selling intangible assets, subject to allocation by a customer's state of incorporation. But under Section 171.103, as amended in 1998, the comptroller counters, allocated income from a license is to Texas if the license were used in Texas. The comptroller used TGS customers' mailing or billing addresses to establish where the licenses were used. The trial court ruled for the comptroller, but reversed the penalties and interest. 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

09-0330 Liana Leordeanu v. American Protection Insurance Co. from Travis County and the Third District Court of Appeals, Austin For petitioner: Bradley Dean McClellan, Austin For respondent: Jack W. Latson, Austin The issue in this workers-compensation case is whether a traveling sales representative's car accident injury was in the course and within the scope of her employment. Leordeanu sued American Protection after it denied her benefits claim and after an administrative review upheld the denial. Her injury resulted from a one-car accident as she returned from dinner with a client, intending to stop at a company-provided storage unit before going to her home office nearby. She was driving a car provided and maintained by her company. The trial court ruled her injury was employment-related, but the appeals court reversed, holding that her trip had dual business and personal purposes and rejecting her argument that her injury was covered because she fell under the "continuous coverage" principle of workers-comp law. Leordeanu argues that the appeals court's holding would preclude coverage for any traveling sales representative headed home on a business trip. 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

(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

08-0890 Offshore Specialty Fabricators Inc., et al. v. Wellington Underwriting Agencies Ltd., et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner Houston Exploration Co., S. Shawn Stephens, Houston For petitioner Offshore Specialty Fabricators, Harry L. Scarborough, Houston For respondents: Glenn R. Legge, Houston A principal issue in this insurance appeal is whether lined-through policy language should be considered as evidence that parties did not intend coverage. Offshore Specialty Fabricators, under contract to build an offshore oil platform, sued the underwriters when they refused to pay under an "all-risks" policy for keeping repair ships on standby during storms in the Gulf of Mexico. In contracting for coverage, the parties crossed through language providing "standby charges." The trial court granted the offshore-rig builder summary judgment, ruling that the crossed-through language showed intent for a policy that otherwise was not ambiguous. In reversing that, the appeals court held that the stricken language showed unambiguous intent not to cover standby changes. 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

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

(Chief Justice Jefferson not sitting) 09-0306 Betty Yvon Lesley, et al. v. Texas Veterans Land Board, et al. from Erath County and the 11th District Court of Appeals, Eastland For petitioners: Chris Aycock and Charles Tighe, Midland For respondent: Bluegreen Southwest One, Laura H. Burney, San Antonio For respondents lot owners: Stephen E. Haynes, Brownwood The issue is whether a residential developer holding executive mineral rights breached its duty to other mineral interest-holders by failing to lease oil and gas rights or by using restrictive covenants to prevent the mineral interests' development. In this action, arising after the Barnett Shale exploration and development west of Fort Worth, lesser mineral interest-holders sued the developer and lot owners (including the Veterans Land Board) to declare as unenforceable covenants prohibiting oil-and-gas drilling in a ranchette community. Non-executive interest-holders also contend the developer's refusal to lease the mineral rights breached a duty to lease owed to lesser mineral interest-holders. The trial court found for the non-executive interest-holders. But the appeals court held the executive mineral interest-holder only owed lesser interest-holders a duty against self-dealing if it decided to lease mineral rights. The court of appeals also reversed the trial court's ruling that the Veterans Land Board did not have sovereign immunity because the interest-holders sought 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

(Justice Medina and Justice Willett not sitting) 09-0530 Texas Department of Public Safety v. Cox Texas Newspapers L.P. and Hearst Newspapers L.L.C. from Travis County and the Third District Court of Appeals, Austin For petitioner: David S. Morales, Austin For respondents: William Christian, Austin The principal issues in this dispute over state troopers' travel vouchers submitted for the governor's out-of-state trips are (1) whether a common-law exception to the Texas public information law excludes the vouchers' release, or should, when disclosure allegedly could cause physical harm; (2) whether DPS waived reliance on the Texas Homeland Security Act as an "other law" that would be an exception from the public information law's disclosure requirement; and, if not, (3) whether the vouchers are collected for preventing, detecting or investigating terrorism or related criminal activity. At least two Texas newspapers sued after DPS, with the attorney general's backing, refused to disclose individual troopers' travel vouchers for the governor's past out-of-state trips. DPS cited safety concerns for the governor and troopers and the attorney general, in an opinion DPS requested, determined the Texas Public Information Act did not require the vouchers' release. The trial court ruled the vouchers were not confidential and that disclosing them would not pose any imminent physical threat. The court of appeals affirmed, holding that evidence did not demonstrate substantial risk of harm even if a common-law privacy right could be grounded on such risk. 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

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

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

09-0558 Marsh USA Inc. and Marsh and McLennan Cos Inc. v. Rex Cook from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Ms. Beverly A. Whitley, Dallas For respondent: Ms. Monica W. Latin, Dallas The issue is whether a non-competition agreement in exchange for stock options is unenforceable. Marsh sued Cook, a former employee, after Cook went to work in 2007 for a competitor. Two years earlier Cook exercised his stock option under an agreement that stipulated he would not work in the same type of business as Marsh's for two years if he left the company. Cook argues the non-compete agreement is unenforceable because, under Texas law, the stock-option deal must have given rise to the company's interest in restraining him from competing, such as promising him access to proprietary information, but the stock option did not. Both the trial court and the appeals court held the agreement to be unenforceable. 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

(Justice Guzman not sitting) 09-0396 Reid Road Municipal Utility District No. 2 v. Speedy Stop Food Stores Inc. Ltd. from Harris County and the 14th District Court of Appeals, Houston For petitioner: C. Charles Dippel, Houston For respondent: Bill Russell, Victoria The principal issue is whether a corporate agent under the property-owner rule - allowing a property owner to testify to its value even if unqualified to assess property belonging to someone else - is competent to testify to corporate property's value. Speedy Stop challenged a $9,300 condemnation award for a water easement, putting on as a valuation expert the general partner's vice president charged with property acquisitions. He testified to a $62,000 property-value loss. The trial court granted a no-evidence summary judgment for the utility district, ruling that the vice president, who was not a broker or licensed appraiser, could not testify because the property-owner rule did not apply to a corporate entity. 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

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

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

09-0544 Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Eugene W. Brees, Austin For respondents: R. Brent Cooper, Dallas The issue is whether the two-year medical-malpractice limitations on suit ("notwithstanding any other law") is trumped by the proportionate-responsibility law's provision to join third parties ("even though such joinder would otherwise be barred by limitations"). Molinet sued a podiatrist for malpractice, then after the podiatrist designated Kimbrell and Horan as responsible third parties, Molinet amended his suit to include them. Kimbrell and Horan moved to dismiss, arguing that the joinder was beyond the limitations in a health-care liability action. The trial court denied their motion. 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

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

09-0770 City of Houston v. Steve Williams, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Reagan D. Pratt, Houston For cross-petitioners/respondents: Vincent L. Marable III, Wharton The issues in this case by firefighters claiming the city miscalculated vacation and sick-leave benefits upon retirement are (1) whether the Court has jurisdiction over this interlocutory appeal; (2) whether city ordinances are written contracts that would waive governmental immunity; and (3) whether the firefighters have standing to sue, based on or despite "meet-and-confer" or collective-bargaining agreements. A principal factor is whether the city ordinances governing these retirement benefits amount to a contract as defined by Local Government Code section 271.151(a)(2) - "a written contract stating the essential terms of the agreement for providing goods or services" - that would waive governmental immunity. The court of appeals held that the ordinances constituted a unilateral contract accepted by the firefighters when they began work. 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

09-0326 Larry Roccaforte v. Jefferson County from Jefferson County and the Ninth District Court of Appeals, Beaumont For petitioner: Laurence Watts, Missouri City For respondent: Steven L. Wiggins, Beaumont In this suit by a deputy constable alleging wrongful termination the principal issues are (1) whether Texas Local Government Code section 89.0041's is jurisdictional (whether Texas Government Code section applies to make it so) and (2) whether section 89.0041 is preempted by Section 1983 for a civil-rights violation. Roccaforte claims he was fired after filing a grievance against the county constable. He did not send notice to the county as required by 89.0041, but served the county judge. The district attorney answered within 30 days. Jefferson County challenged the trial court's jurisdiction. The court of appeals reversed the trial court, holding that compliance with section 89.0041 is not a jurisdictional requirement. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us