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

The principal issues are (1) whether a common-law action exists for breach of an implied warranty to perform good and workmanlike repairs and (2) whether evidence existed to support a jury finding that the discovery rule or fraudulent-concealment doctrine tolled limitations for a warranty claim under the Deceptive Trade Practices Act. In this case Gonzales sued in part for breach of an implied warranty to repair foundation defects she hired Olshan to fix. The jury found Gonzales should not have discovered that Olshan failed to properly repair the foundation until after she hired her own engineer, more than two years after she complained about cracking appeared after Olshan's work on her house. Before then, Olshan had assured her the cracks she saw were not the result of a faulty foundation or of Olshan's work. The company sent an engineer who supported its contention. The engineer's firm was half-owned by Olshan's chief executive officer. Reviewing a judgment awarding Gonzales damages, the court of appeals reversed, holding in part that an implied common-law warranty for good and workmanlike repairs does not exist in Texas and overturned the jury's decision that the discovery rule delayed the effect of the two-year limitations that allowed her deceptive trade-practices claim.

The principal issues in this inverse-condemnation action are (1) whether legally sufficient evidence supports damages from a flood-control structure on an easement that Kopplow claims would cause flooding on its remainder property during a 100-year flood; (2) whether Kopplow’s inverse-condemnation claim is ripe; and (3) whether Kopplow’s claim is barred by the rule that damages cannot be recovered by a property owner when the government takes adjoining land. Kopplow’s suit alleged that the city’s building a flood-control wall on a utility easement through its property for a nearby flood-diversion project raised the 100-year-flood plain and forced it to elevate its property to meet federal development requirements. The court of appeals reversed the damages award for the remainder property, holding that insufficient evidence supported the claim.

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

10-1028 PNS Stores Inc. v. Anna E. Rivera from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: David A. Oliver Jr., Houston For respondent: Daniel J. T. Sciano, San Antonio, and Kimberly S. Keller, Boerne Three principal issues arise from this petition from a denied bill of review: (1) whether a default tort judgment in 2000 is void or voidable for defects in service of process; (2) whether the four-year bill-of-review limitations applies to an attack on a void default judgment (or whether alleged extrinsic fraud can toll the limitations); and (3) whether an amended summary judgment in a federal suit on the same facts – the amended judgment, with prejudice, barred the case from being refiled – renders the state default judgment void. In seeking to overturn the default judgment, PNS Stores claimed it did not have knowledge of the suit, which was served on the company’s registered agent, and alleged defects in the method of service. PNS argues in part that the service-of-process defects render the default judgment void and subject to direct attack or voidable and subject to indirect or collateral attack. The company also contends that limitations should be delayed because of extrinsic fraud. It argues that notice of the $1.2-million default judgment in the underlying negligence case was served on the registered agent, not the company as party, and execution to collect the judgment – when the company claims it had first notice of the judgment – was delayed by design for almost 10 years. The trial court denied PNS Stores’ effort to overturn the judgment. 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

10-0435 Weeks Marine Inc. v. Maximino Garza from Starr County and the Fourth District Court of Appeals, San Antonio For petitioner: Frank E. Pérez, Brownsville For respondent: Edward John “Jack” O’Neill Jr., Houston For amicus King Fisher Marine Services: Steven J. Knight, Houston Principal issues in this Jones Act action are (1) whether legally sufficient evidence supported the jury’s finding that Weeks’ failure to provide “maintenance and cure” aggravated Garza’s original injury and (2) whether damages for negligence and for failure to provide maintenance and cure were duplicative. Garza filed suit after he was hit in the head by a swinging bar aboard a barge, claiming negligence under the federal Jones Act and aggravation of that injury by Weeks’ failure to get adequate treatment for the injury. Weeks’ preferred physician cleared Garza to return to work. but after Garza continued to complain of symptoms, his own doctor referred him for surgery. The trial court awarded damages for the injury and pain and suffering because of the failure to provide maintenance and cure. On review, the court of appeals affirmed, holding in part that damages did not amount to a double recovery. 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

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

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

10-0096? Lancer Insurance Co. v. Garcia Holiday Tours ?from Jim Wells County and the Fourth District Court of Appeals, San Antonio For petitioner: E. Thomas Bishop, Dallas?For respondents Garcia Holiday Tours, et al.: Stephen J. Chapman, Corpus Christi For respondents passengers: David George, Houston A principal issue is whether a standard commercial-automobile policy covers charter-bus passengers for tuberculosis they allegedly contracted from the bus driver as an accident “resulting from ownership, maintenance or use” of the covered bus. Garcia Holiday Tours sued Lancer after Lancer refused to defend or indemnify Garcia in a suit by students and a chaperone who contracted latent TB on an Alice High School band trip. Garcia lost a $5.25 million judgment. In the declaratory-judgment action the trial court granted summary judgment against Lancer on the duty to defend and indemnify. The appeals court reversed, concluding fact questions existed on whether the TB resulted from the bus’s use, precluding the passengers’ summary judgment. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

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

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

09-0544 Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Eugene W. Brees, Austin For respondents: R. Brent Cooper, Dallas The issue is whether the two-year medical-malpractice limitations on suit (“notwithstanding any other law”) is trumped by the proportionate-responsibility law’s provision to join third parties (“even though such joinder would otherwise be barred by limitations”). Molinet sued a podiatrist for malpractice, then after the podiatrist designated Kimbrell and Horan as responsible third parties, Molinet amended his suit to include them. Kimbrell and Horan moved to dismiss, arguing that the joinder was beyond the limitations in a health-care liability action. The trial court denied their motion. The court of appeals reversed.This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

08-0964 Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel from Atascosa County and the Fourth District Court of Appeals, San Antonio For petitioner Edwards Aquifer Authority: Pamela Stanton Baron, Austin For petitioner State of Texas: Kristofer S. Monson, Austin For cross-petitioners/respondents: Tom Joseph, San Antonio Principal issue are (1) whether landowners within the Edwards Aquifer boundaries own the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwards Aquifer Authority. This appeal arises from Day and McDaniel’s challenge to the aquifer authority’s limited irrigation permit to pump water from a reservoir on their property. In an appeal from the aquifer authority’s permit ruling, the trial court sided with Day and McDaniel, deciding that the reservoir water was aquifer water subject to the authority’s control. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was “state water” subject to state regulation. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

09-0269 Jefferson State Bank v. Christina C. Lenk from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Ellen B. Mitchell, San Antonio For respondent: S. Mark Murray, San Antonio Principal issues in this case involving estate funds paid to an imposter administrator are (1) whether a bank can rely under the Probate Code on fraudulent administration letters to give the imposter administrator access to the decedent’s account without liability and (2) whether the bank’s making bank statements available started time running to bar any action on an unauthorized transaction. In this case an administrator for two estates sued for money a onetime Bexar County probate clerk took from the estates using fraudulent letters of administration. The bank argues that the letters were “facially valid” and protected it from liability and bank statements were given by a receiver to the court-appointed administrator more than a year before she demanded payment from the bank. The bank contends that her payment demand was beyond the Uniform Commercial Code’s one-year repose period. The trial court granted summary judgment for the bank. The court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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 and Justice Guzman not sitting) 09-0073 Merck & Co. Inc. v. Felicia Garza, et al. from Starr County and the Fourth District Court of Appeals, San Antonio For petitioner: Stephen G. Tipps, Houston For respondents: Kevin Dubose, Houston A principal issue is whether clinical-testing evidence showing a less-than-double risk in the general population, combined with other evidence, can legally prove toxic-injury causation under Havner’s more-likely-than-not reliability standard. Garza sued Merck after her husband, who had a history of heart ailments, died of rare simultaneous arterial clots after taking Vioxx prescribed by his cardiologist. Merck challenged as legally insufficient Garza’s expert testimony in a motion to disregard the jury verdict for Garza. The court of appeals initially reversed and rendered judgment for Merck, holding that Garza did not refute with reasonable certainty that her husband’s pre-existing heart condition was a plausible cause of death. On rehearing, the appeals court held that Garza’s expert testimony met Havner’s requirements. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

08-0419 University of Texas Health Science Center at San Antonio v. Kia Bailey and Larry Bailey from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: Michael P. Murphy, Austin For respondents: Steven E. Aldous, Dallas The issue is whether an amended medical-malpractice petition naming a state medical-school hospital relates back to the original filed against a doctor, a hospital employee, who successfully moved for substitution or dismissal after limitations had run. In this case the Baileys sued the doctor for malpractice in his individual capacity. More than a year after they filed the suit, and several months after the two-year limitation on filing suit, the doctor moved for dismissal under a Texas Tort Claims Act provision. That provision - section 101.106(f) - considers a public employee sued for job-related conduct to be acting in his official capacity and allows him to be dismissed from the suit and the governmental entity substituted instead. Section 101.106(f) does not mention the common-law relation-back doctrine. The trial court dismissed the suit, but the court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0316 Methodist Healthcare System of San Antonio Ltd., L.L.P. v. Emmalene Rankin from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Carl Robin Teague and Rosemarie Kanusky, San Antonio For respondent: R. Brent Cooper, Dallas The principal issue is whether the 10-year statute of repose on medical-malpractice claims violates the Texas Constitution’s open-courts provision when Rankin discovered a sponge had been left i her abdomen almost 11 years after surgery. In the trial court the defendants got summary judgment, based on the statute of repose. But the court of appeals declared the repose unconstitutional, reasoning that the statute deprived Rankin of her right to compensation before she had a reasonable opportunity to discover the injury. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

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

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

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

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

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

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

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

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

07-0787 Spectrum Healthcare Resources Inc. and Michael Sims v. Janice and Patrick McDaniel from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Richard C. Harrist and Robert R. Biechlin, San Antonio For respondents: Jeffrey C. Anderson, San Antonio The Supreme Court will hear arguments in this health-care liability case involving an agreed docket-control order that established a time line for an expert report. The issue is whether that order extends the 120-day statutory deadline for an expert report. The trial court dismissed the complaint for failure to submit the report, but a divided court of appeals reversed en banc. In this health-care liability case involving an agreed docket-control order that established a time line for an expert report, the issue is whether that order extends the 120-day statutory deadline for an expert report. The McDaniels sued after Janice McDaniel fell during physical therapy. Less than two months after the suit was filed, the parties agreed to a schedule for designating expert witnesses and their reports outside the statutory limits and stipulating that the agreed order would take precedence over deadlines set by rule or statute. The trial court dismissed the complaint for failure to submit the report, but a divided court of appeals reversed en banc. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0599 Retamco Operating Inc. v. Republic Drilling Co. from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioner: James L. Drought, San Antonio For respondent: Douglas W. Alexander, Austin The Supreme Court will hear arguments on whether Texas has personal jurisdiction over Republic, a California company that acquired passive, non-operating mineral interests with a liability assumption for a pro rate share of operating and well-abandonment expenses. The issue arising from this fraud and contract action over royalties is whether Texas has personal jurisdiction over Republic, a California company that acquired passive, non-operating mineral interests with a liability assumption for a pro rate share of operating and well-abandonment expenses. Republic got the mineral interests from Paradigm Oil in transactions in California and Colorado while Retamco’s fraud and breach-of-contrast suit was pending. Paradigm later declared bankruptcy. The trial court denied Republic’s special appearance to challenge personal jurisdiction, but the appeals court reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0697 Paul H. Smith, et al. v. Thomas O’Donnell from Harris County and the Fourth District Court of Appeals, San Antonio For petitioners: Casey L. Dobson, Austin For cross-petitioner/respondent: Vincent L. Marable III, Wharton The Supreme Court will hear arguments on (1) whether privity must exist between an executor and the deceased’s attorney for a suit over alleged failure to advise on property mischaracterization when the deceased was executor of his late wife’s estate and (2) whether a no-evidence summary judgment favoring the attorney was proper on the executor’s gross-negligence claim. Principal issues include (1) whether privity must exist between an executor and the deceased’s attorney to support a legal malpractice suit based on the attorney’s alleged failure to advise on property mischaracterization when the deceased was executor of his late wife’s estate and (2) whether the no-evidence summary judgment favoring the attorney was proper on the executor’s gross-negligence claim. This action followed a suit by the deceased’s children against their father’s estate, claiming stock owned by their mother was mischaracterized as their father’s separate property and deprived them of what they should have inherited from their mother. The trial court granted the attorney summary judgment. The court of appeals reversed, in part holding that no privity existed between the attorney and the executor and in part holding no evidence existed to prove gross negligence. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0131 John Christopher Franka, M.D., et al. v. Stacey Velasquez and Saragosa Alaniz from Bexar County and the Fourth District Court of Appeals, San Antonio For petitioners: Thomas H. Crofts Jr., San Antonio For respondents: Gene Hagood, Alvin The Supreme Court will hear arguments in this medical-malpractice case against two doctors at the University of Texas Health Science Center in San Antonio, the issue is whether they should be dismissed from the suit because it “could have been brought” against the Health Sciences Center. The issue in this medical-malpractice case against two doctors at the University of Texas Health Science Center in San Antonio is whether they should be dismissed from the suit because it “could have been brought” against the Health Sciences Center. Both doctors, one a professor and the other a resident, moved for summary judgment under Texas Civil Practices & Remedies Code section 101.106(f). That section provides that a suit against a government employee over conduct within the scope of the employee’s work shall be dismissed if not amended to name, in this case, the UT Health Sciences Center instead. The trial court denied the summary-judgment motion and the court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

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

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

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

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

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

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

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

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

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