The issues are (1) whether the trial court has authority to award attorney fees as “necessities” for child support when the nature of the action is modification and not enforcement and, if so, (2) whether awarding 6 percent compound interest on those fees abused the trial court's discretion. Tucker sued his ex-wife, Thomas, to modify final orders to give him exclusive right to designate his children's primary residence. In her counterclaim Thomas sought sole managing conservatorship and increased child support from Tucker. The trial court denied Tucker's relief and Thomas's request to be appointed joint managing conservator, but increased Tucker's child support. The court awarded Thomas attorney fees as child support, finding the fees necessities benefiting the children. The appeals court affirmed in a split decision by the whole court.

This and the related 12-0199 action involve a royalty-owners class suing for underpayment the issues are (1) whether interlocutory review or relief by mandamus or prohibition are proper to force the trial court to reconsider class certification by res judicata issues the Court arguably ordered be reconsidered on remand in the previous appeal, Bowden v. Phillips Petroleum Co.; (2) whether the Supreme Court has interlocutory jurisdiction to review the trial court’s addition of implied-covenant-to-market claims on remand by the certified class and (3) whether the implied-covenant-to-market claims should be struck as matter of law. As to the first issue, Phillips and ConocoPhillips argue that Bowden required reconsideration of the class certification based on the res judicata issues. Yarbrough counters that Bowden confirmed class certification of the subclass in this appeal and ordered res judicata be considered only if the trial court certified a new class.

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

This case challenging the city's retirement-pay calculations for firefighters raises two principal issues: (1) whether the Local Government Code (section 142.0017) requires the city to pay overtime for approved absences and (2) whether a state statute preempts the city's ordinance governing retirement pay by explicitly defining “salary” and making that definition mandatory. Bates and other firefighters sued the city for failing to calculate overtime pay in their lump sum “termination pay” that normally included leftover vacation and sick days. The city claims they had been paid overtime by mistake when they were working and deducted it from their termination pay. They also allege the city miscalculated their regular salaries, reducing their termination payments. The trial court found for the firefighters on both claims. The appeals court affirmed.

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

The principal issues in this legal-malpractice case are (1) whether the trial court abused its discretion by striking as mere conclusion portions of an attorney's affidavit estimating damages and (2) whether plaintiffs nonetheless presented sufficient evidence to defeat a no-evidence summary-judgment motion. Elizondo and his wife sued lawyers who represented him in negotiations with BP Chemical Co. for his injuries in the Texas City refinery explosion in 2005. Jose Elizondo settled for $50,000, BP's only counter to his $2-million settlement offer. But years later he brought this malpractice claim when he discovered one of the lawyers negotiating for plaintiffs went to work for BP. In his claim Elizondo argued that his lawyers failed to obtain a larger settlement and never discussed a possible loss-of-consortium claim by his wife. The trial court struck the Elizondos' expert's affidavit as conclusion without support and ordered a take-nothing judgment against them. The court of appeals affirmed, with one dissent.

The principal issues are (1) whether the law-of-the-case doctrine bars Lennar's complaint that the court of appeals wrongly defined property damage because Lennar, as the successful party in a previous appeal, did not challenge the point in the earlier appeal; (2) whether the costs submitted to the jury were covered costs under the excess-insurance policy--that is, whether Lennar's incurred costs to determine water damage in homes was "because of" property damage and whether Lennar properly segregated covered from uncovered costs; and (3) whether Lennar was legally liable to homeowners for repairs attributed to a faulty stucco simulant to avoid a settlement-without-consent clause in the policy that barred coverage. In this case Lennar sued Markel and other insurers for refusing to pay repair costs Lennar incurred to remedy problems, actual and prospective, to homes it sold with the defective imitation stucco. Markel's policy with Lennar covered damages because of "property damage." In the earlier appeal the appeals court established damages categories that excluded costs to remove the imitation stucco to inspect homes for water damage attributed to the defective product. From a jury verdict on remand for Lennar, the court of appeals reversed in part because it held the defined damages were broader than it allowed in the initial appeal. The appeals court also determined Markel should not pay because Lennar did not prove its liability to homeowners or seek Markel's permission to make the repairs it did.

The principal issues are (1) whether a city zoning ordinance more restrictive on locating a concrete-crushing plant than the Texas Clean Air Act allows is preempted by either the statute or the state constitution and (2) whether the zoning ordinance violates the Local Government Code's uniformity-of-requirements provision by imposing its restriction years after the company’s state-permit process was begun. In this case the company sued to declare the zoning ordinance impermissibly in conflict with the state's permit. The city denied Southern Crushed Concrete's application after the Texas Commission on Environmental Quality issued its permit. The appeals court affirmed the trial court’s ruling for the city.

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

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

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

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

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

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

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

10-0603 Texas West Oaks Hospital, LP v. Frederick Williams from Harris County and the 14th District Court of Appeals, Houston For petitioners: Ryan L. Clement, Houston For respondent: Charles M. Hessel, Houston The issue is whether a hospital employee’s negligence claim against his employer based on a fight with a paranoid-schizophrenic patient is a health care-liability claim and, if so, whether the employee is a “claimant” under the statute who must file an expert report. Williams, injured in the fight that resulted in the patient’s death, sued the hospital after the patient’s estate named him as well as the hospital in a health care-liability claim. In his cross claims, Williams alleged the hospital did not train him adequately to handle dangerous patients or adequately warn or supervise him with the patient. The hospital moved to dismiss Williams’ suit because he did not submit a health care-liability expert report. The trial court denied the dismissal motion and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

10-0513 ?Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel? from Harris County and the 14th District Court of Appeals, Houston? For petitioner: Holly H. Williamson, Houston ?For respondent: Reginald E. McKamie, Houston? For Amicus Curiae: Christopher Kaiser, Austin The issue is a whether a sexual assault alleged during a medical examination constitutes a health-care liability claim that would require an expert report. Gugel sued Wasserman for inappropriately touching her genitalia during an examination to determine the cause of pain and numbness in her lower back and legs and claimed he sexually harassed her in later calls. Wasserman moved to dismiss Gugel’s complaint because she did not file a health-care expert report. The trial court denied the doctor’s motion and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

(Justice Guzman not sitting) 09-0396 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

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

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

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

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

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

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

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

(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

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

08-1003 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: Ramón 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

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

(Justice Guzman not sitting) 08-0551 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

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

08-0669 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

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

(Justice Guzman not sitting) 08-0658 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

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

08-0148 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

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

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

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

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

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

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

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

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

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

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.

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

06-0714 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.

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

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

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

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

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

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.

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

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

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

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

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

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

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

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.