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

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

10-0887 Wendell Reeder v. Wood County Energy, LLC, et al. from Wood County and the 12th District Court of Appeals, Tyler For petitioner: Charles Watson, Austin For respondents: Greg Smith, Tyler The principal issues are (1) whether the exculpatory clause in a model joint-operating agreement, allowing liability only for gross negligence or willful misconduct, extends to a working-interest operator’s alleged breach of the operating agreement by neglect and (2) whether the appeals court erred by assessing the legal and factual evidence against a contract-breach standard instead of gross negligence or willful conduct. In this case Reeder sued to claim exclusive right, as operator, to use oil wellbores in a designated production unit. The working-interest holders countersued Reeder, claiming he breached the joint-operating agreement and allowed by his inaction the production unit to expire. On appeal, Reeder argued that the jury’s award for the working-interest holders was based on insufficient evidence that he acted with gross negligence or willful misconduct even if the joint-operating agreement applied to him. Wood County and the other working-interest holders contended the gross-negligence and willful-conduct standard did not apply to the breach question and should not have been included in the jury instructions. The court of appeals determined that the gross-negligence and willful-misconduct standards from the exculpatory clause should not have been included in the jury questions, but held that Reeder breached his duties under the joint-operating agreement. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

10-0548 Rusk State Hospital v. Dennis Black and Pam Black from Cherokee County and the 12th District Court of Appeals, Tyler For petitioner: Michael Murphy, Austin For respondents: Dennis Black, Tyler A principal issue is whether sovereign immunity may be raised in an interlocutory appeal from a trial court order that did not address subject-matter jurisdictional challenges that were not presented to the trial court. In this case the Blacks sued Rusk State Hospital over their son’s suicide and filed expert reports required to establish a health-care liability claim. The state appealed from the trial court’s order denying its challenge to the reports’ adequacy and added in that interlocutory appeal its initial argument that the suit should be dismissed on immunity grounds. The court of appeals addressed the state’s expert-reports challenge, but held that Civil Practice and Remedies Code section 51.014(a)(8), permitting interlocutory appeal for certain issues, does not authorize such an appeal on claims that have not been considered by the trial court. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

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

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

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

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

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

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

08-0136 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

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

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

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

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.