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

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

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

(Justice Green not sitting) 09-0048 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

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

08-0799 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

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

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

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

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

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

08-0363 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

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

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

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

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

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

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.

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

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

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

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.