The principal issues are (1) whether shareholders and principals controlling a closely held corporation oppressed a minority shareholder by refusing to meet with potential buyers of stock she controlled; (2) whether shareholder oppression should be proved by a "reasonable expectations" standard or by one showing "burdensome, harsh or wrongful conduct"; (3) whether the Texas statute addressing oppression authorizes a court to order other shareholders to buy the minority shareholder's stock; and, if so, (4) whether such a stock-buyout remedy was appropriate in this case. This dispute involves stock in a family company, Rupe Investment Corp. of Dallas. All stock in Rupe Investment is held by descendants of Dallas businessmen Dallas Gordon Rupe Jr. (“Pops”) and Robert Ritchie or by trusts for their descendants. Ann Rupe, in charge of a trust her late husband established to hold his shares ("Buddy's Trust"), sued Ritchie and other Rupe Investment directors because they refused to meet with potential buyers of the stock she controlled. The other directors cited liability problems they might face by meeting with would-be buyers. Rupe hired a broker to sell the stock after she refused the directors' offers to buy her stock for as much as $1.7 million. The broker priced it as high as $3.4 million, but testified no purchaser would buy it without meeting with the directors. Finding oppression, the trial court ordered Rupe Investment to buy the stock for $7.3 million after a jury determined that to be its fair market value. The court of appeals affirmed the trial court's oppression finding, but reversed to revalue the stock. The appeals court held that jurors should have been instructed to account for Ann Rupe's minority-shareholder status and the lack of a ready market for the stock.

A principal issue in this case, pleaded as an inverse-condemnation claim by a developer that deeded property for a community park with a buy-back provision if the park were not developed, is whether the developer retained a property interest sufficient to support inverse condemnation because the city built a library on the land instead. When El Dorado sued, the city asserted the trial court did not have jurisdiction because El Dorado sought contract damages but did not plead a contract claim and lacked standing because it did not have a property interest in the land. The trial court granted the city's jurisdictional plea and the appeals court affirmed, holding that inverse condemnation traditionally requires a property interest and that El Dorado seeks compensation for a right to repurchase property under a contract.

The issues are (1) whether an arbitration clause in a trust is binding on beneficiaries under the Texas Arbitration Act and, if so, (2) whether the trustee, a successor to the inter vivos trust, has standing to enforce the arbitration agreement. In this case Reitz, whose father established the trust that named Reitz as a beneficiary, sued to remove Rachal as the trustee. In response Rachal moved to compel arbitration under a mandatory trust provision requiring beneficiaries to arbitrate their claims. The trial court denied the motion. In a decision for the entire court of appeals, the court affirmed. The court held that a valid arbitration clause binding trust beneficiaries must result from a contract, not a property conveyance by trust.

The issue is whether the statutory affirmative defense in a personal-injury or wrongful-death claim that the plaintiff was committing a felony for which he "has been finally convicted" that was the sole cause of his injuries bars the common law's unlawful-acts doctrine in a wrongful-death suit. Arredondo sued Dugger for delay in calling paramedics when her son collapsed after drinking, smoking marijuana and ingesting black-tar heroin and for failing to tell the paramedics that her son had been consuming heroin. Paramedics treated him for alcohol poisoning, not a reaction to the heroin. Dugger won summary judgment, arguing that the unlawful-acts doctrine barred Arredondo's suit. On appeal, the court reversed, holding that the more specific statutory affirmative defense - requiring proof of conviction - preempted the common-law unlawful-acts rule and that Dugger did not establish all the defense's elements.

In this contract dispute involving wind generated-energy sales, a principal issue is whether a liquidated-damages provision applies to sale of renewable-energy credits and to energy sales under the contract, or just to the credits, raising the question whether the provision is enforceable. In this case TXU sued for contract breach, claiming FPL Energy and two other wind-energy producers that contracted to sell it energy and renewable-energy credits – sales that helped TXU comply with to a new state law requiring renewable energy production in Texas – failed to deliver the energy and energy credits. FPL and the other wind-energy producers counterclaimed that TXU did not provide sufficient transmission lines to carry the wind-energy produced. The trial court found the liquidated damages amounted to an unenforceable penalty, that TXU was required to provide transmission capacity and that TXU should take nothing because it covered its losses by buying renewable energy from other sources. The court of appeals reversed, holding that the liquidated-damages provision is enforceable and that TXU's contract with the wind-energy producers did not require it to provide transmission capacity.

The principal issues are whether (1) a medical-school department chair, by alleging Medicare- and Medicaid-rules violations to his supervisor, reported law violations to an “appropriate law-enforcement authority” under the state Whistleblower Act or (2) had a good-faith belief that his supervisor was such an appropriate law-enforcement authority. Under the whistleblower statute such a law-enforcement authority is defined as part of a government agency that can enforce the law alleged to be violated or regulate under it. Gentilello reported to his supervisor that residents were performing surgeries without supervision, violating federal rules, but sued under the whistleblower law after he was demoted. The court of appeals held that Gentilello’s supervisor was an appropriate authority to report the alleged law violations because federal regulations charged the medical center with self-enforcement, that the supervisor determined federal compliance issues and the hospital’s compliance office encouraged reporting violations with the promise of no retaliation.

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

11-0282 In the Interest of E.R., et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Jeremy C. Martin, Dallas For respondent: Kimberly Duncan, Dallas The principal issue is whether a statutory deadline for attacking a parental rights-termination order based on service by publication bars a mother from such an attack when the state could have served her in person but did not. In this case the state petitioned to terminate the mother’s rights to four children and explained that publication was used for service because she told her caseworker she was moving and did not have a permanent address. Within the next month the mother met with her caseworker for a scheduled appointment, but was not served in person. She did not attend the termination hearing, although her attorney ad litem did. The trial court ordered her parental right terminated. More than six months after the decree was signed, the mother moved for a new trial. The state opposed the new-trial motion, which the trial court denied, but did not raise the six-month deadline for attacking a termination order under Family Code 161.211(b) until it filed an amended brief after the mother’s reply brief to the court of appeals. That court affirmed the termination, holding that the statutory deadline constituted an absolute bar to challenging the decree after six months. 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

10-0781 U-Haul International Inc., et al. v. Talmadge Waldrip, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: David E. Keltner, Fort Worth, and Thomas S. Leatherbury, Dallas For respondents/cross-petitioners: Ted B. Lyon Jr., Mesquite The issues in this personal-injury case involving a rental truck’s parking-brake failure are (1) whether legally sufficient evidence showed gross negligence; (2) whether legally sufficient evidence supported the jury’s negligence findings; and (3) whether a Canadian consumer-safety group’s report was relevant evidence or hearsay. Waldrip and his family sued U-Haul International, the company’s Texas franchise and its contract dealer from which he rented a truck that crushed him as he tried to stop it from rolling away. A jury found all three companies negligent by variously failing to inspect and maintain the truck’s brake system and transmission properly. Jurors also found U-Haul International and the Texas franchise grossly negligent. In its judgment the trial court awarded almost $45.7 million in actual and exemplary damages. The court of appeals reversed the gross-negligence finding against U-Haul International and the $11.7 million exemplary damages award against it and affirmed the remainder. 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

11-0079 Oncor Electric Delivery Co. LLC v. Dallas Area Rapid Transit and Fort Worth Transportation Authority from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: James C. Ho, Houston For respondents: Joycell Hollins, Dallas For amicus curiae Liberty Institute: Kelly J. Shackelford, Plano Three principal issues in this condemnation case involving the Trinity Railway Express commuter-rail line are (1) whether Oncor has authority to condemn an easement for a transmission line above the railway authority’s tracks and, if so, (2) whether Trinity Railway Express has immunity from suit in such a condemnation proceeding; and (3) whether House Bill 971 (Texas Utility Code section 37.053, allowing all approved transmission lines across all public land except that owned by the state) applies. 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

10-0995 Dr. Erwin Cruz v. Andrews Restoration Inc. and Rudy Martinez from Dallas County and the 5th District Court of Appeals, Dallas For petitioner: Jennifer G. Martin, Addison For cross-respondent Chubb Lloyds Insurance Co. of Texas: Russell W. Schell, Addison For respondent/cross-petitioner: Shawn M. McCaskill, Dallas Two principal issues are (1) whether “restore” as used in the deceptive-trade practices statute incorporates equitable rescission (requiring surrendering benefits under a contract) and (2) whether the main-purpose doctrine will allow an oral promise to pay another’s debt to be enforced despite the statute of frauds. In this case Andrews Restoration (doing business as Protech Services) sued Cruz and his insurer, Chubb Lloyds, for more than $700,000 for Protech’s work to control humidity – and mold growth – in Cruz’s house. Cruz initially hired Protech to repair a water leak and, after mold was discovered, worked to reduce the mold growth in a damages-mediation effort Cruz ordered while Chubb Lloyds determined whether to declare the house a loss. Andrews Restoration alleged in part breach of an oral contract by Chubb Lloyds to pay for the mold remediation and also sued Cruz for breach of a written contract and to foreclose on liens against the property. Cruz counterclaimed against Andrews for deceptive-trade practices and for rescission of any contract with Protech. Chubb Lloyds counterclaimed for common-law fraud and insurance fraud. In summary-judgment proceedings the court determined Protech violated the Deceptive Trade Practices Act by omitting contract language as to Cruz and could not collect from Chubb Lloyds on an implied contract for what Protech spent to stop the spreading mold or for alleged fraud. A jury then found that Cruz was not damaged by the omitted contract language that violated the DTPA and decided the insurer breached an oral agreement with Protech to stem the mold growth. It awarded Protech the amount of its unpaid bills, just over $705,000. The court of appeals reversed the award against Chubb Lloyds, holding that the insurer’s promise, if any, to pay for the mold remediation was not supported by consideration that would have satisfied the main-purpose exception to the statute of frauds’ requirement that a contract to pay debts owed by another must be in writing. The appeals court also rejected Cruz’s argument that he should have been awarded the more than $1 million he spent for Protech’s work on his contention that would “restore” him under the deceptive-trade practices statute. 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

10-0960 In re XL Specialty Insurance Co. and Cambridge Integrated Services Group Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For relators: David Brenner, Austin For real party in interest: Alan B. Daughtry, Houston The principal issue in this workers-compensation case is whether the attorney-client privilege extends to communications between an insured party, the employer, and the workers-comp insurer’s attorney. In this case XL’s argument centers on the common legal-interest doctrine, which the real party in interest disputes, arguing against the purported privilege because Texas workers-comp law bars an employer other than one insuring itself from making claims-handling or settlement decisions. Wagner, the employee, sued XL Specialty, his employer’s workers-comp insurer, for breaching its duty of good faith and fair dealing. Raising privilege, XL refused the employee’s requested disclosure of communications between its attorney and the Wagner’s employer. The trial court granted Wagner’s motion to compel discovery and the appeals court denied XL’s petition for 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 Debra Lehrmann

09-0340 Insurance Company of the State of Pennsylvania v. Carmen Muro from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Mr. Robert D. Stokes, Austin For respondents: Mr. Chad Ruback, Dallas The issues in this workers compensation case are (1) whether Texas law requires a direct injury to feet and hands in order to support benefits for loss of feet and hands alleged as a result of a back, shoulder and hip injury and (2) whether the trial court should have had the jury decide whether the injuries she suffered produced the lost use of her feet and hand. In this case the insurance carrier challenged a hearing officer’s determination granting Muro lifetime disability income for on-the-job injuries to her back, neck, shoulder and hips that she claimed resulted in permanent loss of a hand and her feet. A jury found Muro had permanent loss of her feet and the hand, awarded her lifetime benefits and attorneys fees. The court of appeals affirmed, holding that a direct injury is unnecessary to support the award and that the trial court did not abuse its discretion by failing to submit a producing-cause jury question. The insurance company argues that the jury should have considered the producing-cause factor because evidence indicated Muro had normal feelings in her feet and hand and use of them after the accident. 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 David Medina, Justice Dale Wainwright, Justice Don R. Willett, Justice Eva Guzman, Justice Debra Lehrmann

(Justice Johnson not sitting) 10-0434 ½ Price Checks Cashed v. United Automobile Insurance Co. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Mr. Gavin N. Lewis, Aledo For respondent: Mr. Douglas W. Alexander, Austin The issue is whether an action to recover on a dishonored check should be considered essentially a contract suit that allows awarding . In this case ½ Price Checks Cashed sued after United refused to pay on a check its bank would not honor. The trial court awarded attorneys fees, but the court of appeals reversed, citing its decision in Time Out Grocery v. The Vanguard Group. United argues that a contract, for attorneys fees recoverable by statute, must be a bilateral agreement. Half-Price contends Civil Practices and Remedies Code 38.001 extends to statutory obligations, citing Medical City Dallas v. Carlisle Corp. (allowing attorneys fees for warranty-breach action). 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

09-0794 LTTS Charter School Inc. v. C2 Construction Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Thomas A. Fuller, Arlington For respondent: Brian W. Erikson, Dallas For amicus curiae State of Texas: Kristofer S. Monson, Austin The issue is whether a charter school is a governmental entity for purposes of bringing an interlocutory appeal. When C2 Construction sued LTTS over an alleged contract debt, LTTS pleaded that the court lacked jurisdiction because the charter school had immunity under Local Government Code section 271.151, the contract being oral. The trial court denied the plea. LTTS then took an interlocutory appeal, arguing the immunity issue. But the court of appeals rejected the argument, holding charter schools are not governmental entities as the Texas Tort Claims Act defines governmental unit. 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

09-0520 In re Coy Reece from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Robert B. Gilbreath, Dallas For real parties in interest: Edward Jason Dennis and Mr. Jeremy A. Fielding, Dallas The issue is whether the Court has habeas or mandamus jurisdiction to review criminal contempt for perjury during a civil-suit deposition. In this case Reece petitioned the Court of Criminal Appeals for habeas-corpus relief, but that court refused to act, reasoning that it had constitutional authority to do so but the matter, arising from a civil case, was appropriate for the Texas Supreme Court. In this case, Reece restyled his petition as one for mandamus relief. He argues habeas relief is inadequate because this Court only can order someone freed from a contempt order arising from violating an existing “order, judgment or decree” in a civil case, factors not involved in this case of admitted lying in a deposition. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

09-0558 Marsh USA Inc. and Marsh and McLennan Cos Inc. v. Rex Cook from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Ms. Beverly A. Whitley, Dallas For respondent: Ms. Monica W. Latin, Dallas The issue is whether a non-competition agreement in exchange for stock options is unenforceable. Marsh sued Cook, a former employee, after Cook went to work in 2007 for a competitor. Two years earlier Cook exercised his stock option under an agreement that stipulated he would not work in the same type of business as Marsh’s for two years if he left the company. Cook argues the non-compete agreement is unenforceable because, under Texas law, the stock-option deal must have given rise to the company’s interest in restraining him from competing, such as promising him access to proprietary information, but the stock option did not. Both the trial court and the appeals court held the agreement to be unenforceable. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

09-0257 City of Dallas v. Heather Stewart from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Barbara Rosenberg, Dallas For respondent: Julius S. Staev, Dallas The issue in this takings claim over a house the city demolished as a nuisance is whether res judicata or collateral estoppel attaches to a final determination by a legislatively created, quasi-judicial board. In this case the Urban Rehabilitation Standards Board declared Stewart’s house a nuisance after years of standing vacant and in disrepair. As Stewart appealed the standards board’s nuisance determination to the trial court, the city demolished the house under authority granted by Local Government Code chapters 54 and 214. Stewart then pressed an unconstitutional-takings claim, arguing the city took her property without fair compensation. In response the city pleaded that the takings claim depended on relitigating the standards board’s nuisance finding, but Stewart failed to appeal that specifically to the trial court. After a trial, a jury found the city had unconstitutionally taken Stewart’s property and awarded damages. The trial court rejected the city’s res judicata defense. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0265 City of Dallas v. VSC, LLC from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Charles Estee, Dallas For respondent: James C. Mosser and Alexis F. Steinberg, Dallas For amicus curiae: Bill Davis, Austin Principal issues are (1) whether the vehicle-storage company has a vested property interest in stolen cars police seized from the company’s tow lot and (2) whether the cars’ seizure is a compensable taking under the Texas Constitution. VSC, which operates a storage facility for vehicles towed without owners’ consent, sued over as many as 277 vehicles seized by city police with search warrants for vehicles reported stolen, involved in felonies or with altered identification numbers. VSN claims it lost as much as $250,000 in fees it would have charged the owners for storage and towing. The trial court denied the city’s jurisdictional plea, seeking dismissal, and the court of appeals affirmed for the most part. The appeals court held that the city’s exercise of its police power in this case could be an unconstitutional taking.The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0284 City of Dallas v. Kenneth E. Albert, et al. from Collin County and the Fifth District Court of Appeals, Dallas consolidated with 07-0288, City of Dallas v. David S. Martin, et al. For petitioner: Deborah G. Hankinson, Dallas For respondents: Charles W. McGarry, Dallas, and E. Lee Parsley, Austin The principal issues are (1) whether governmental immunity protects the city from a declaratory judgment that could impose a billion-dollar liability for back pay, benefits and interest to Dallas police, firefighters and emergency workers; (2) whether a suit like this, seeking to enforce an ordinance passed by referendum, is exempt from governmental immunity; and (3) whether by withdrawing a counterclaim the city may restore its immunity. Employees sued to declare the effect of a 1979 referendum imposing by ordinance, they argue, minimum salary increases across the board and for breach of contract for the city’s alleged failure to provide those raises. The trial court denied the city’s jurisdictional plea. The court of appeals held that a declaratory-judgment action waives governmental immunity for prospective relief, affirming the trial court in part, but the court reversed the trial court on the city’s immunity on the contract-breach claims. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0284 City of Dallas v. Kenneth E. Albert, et al. from Collin County and the Fifth District Court of Appeals, Dallas consolidated with 07-0288, City of Dallas v. David S. Martin, et al. For petitioner: Deborah G. Hankinson, Dallas For respondents: Charles W. McGarry, Dallas, and E. Lee Parsley, Austin The principal issues are (1) whether governmental immunity protects the city from a declaratory judgment that could impose a billion-dollar liability for back pay, benefits and interest to Dallas police, firefighters and emergency workers; (2) whether a suit like this, seeking to enforce an ordinance passed by referendum, is exempt from governmental immunity; and (3) whether by withdrawing a counterclaim the city may restore its immunity. Employees sued to declare the effect of a 1979 referendum imposing by ordinance, they argue, minimum salary increases across the board and for breach of contract for the city’s alleged failure to provide those raises. The trial court denied the city’s jurisdictional plea. The court of appeals held that a declaratory-judgment action waives governmental immunity for prospective relief, affirming the trial court in part, but the court reversed the trial court on the city’s immunity on the contract-breach claims. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0613 Nafta Traders Inc. v. Margaret A. Quinn from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Alan L. Busch, Dallas For respondent: Janette Johnson, Dallas The principal issues are (1) whether the Federal Arbitration Act preempts the Texas arbitration statute on expanded judicial review if the federal act applies to an arbitration clause in this case and, if the Texas Arbitration Act is applicable, (2) whether under the state act parties can agree to limit an arbitrator's scope of authority or expand judicial review of an arbitration award. In this case Nafta challenged a $200,000 arbitration award to Quinn on her age- and sex- discrimination and retaliation claims. An arbitration provision in the company's employee handbook barred arbitration awards that contained reversible legal error or that applied a cause of action or remedy not expressly provided by law. Quinn argues that federal arbitration law controls, which, under Hall Street Associates v. Mattel, does not allow judicial review to be expanded by agreement beyond what the statute provides. The trial court confirmed the arbitration award for Quinn. The court of appeals held that Hall similarly restricted the Texas Arbitration Act. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0246 Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Craig T. Enoch, Austin For respondent: Glenn R. Legge, Houston The principal issues are (1) whether an excess general commercial liability policy's exclusion for liability assumed by contract applies to an insured's indemnification claim based on a third party-beneficiary's breach-of-contract allegation and, if so, (2) whether the policy exception for damages "the insured would have in the absence of the contract" provides coverage and requires indemnification. In this case Gilbert settled with a property owner who sued over flood damage allegedly caused by Gilbert's construction debris, which allegedly channeled heavy rain runoff to the property owner's buildings. In Gilbert's contract, to build a light-rail line, the company agreed to protect property belonging to third parties and to make repairs for damage it caused. The trial court found coverage under Gilbert's excess-insurance policy, but the court of appeals reversed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0244 Basic Capital Management Inc., et al. v. Dynex Commercial Inc. and Dynex Capital Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: William Dorsaneo, Dallas For respondents: Deborah G. Hankinson, Dallas In this breach-of-contract case involving real-estate loans the principal issues question (1) whether Basic Capital Management’s affiliate entities were third-party beneficiaries of a loan commitment under which they may recover; (2) whether, if so, they have capacity to recover for Single Asset Bankruptcy Remote Borrowing Entities authorized as borrowers if acceptable by the lender (or whether Dynex, the lender, waived its challenge by failing to file a verified denial); and (3) whether consequential damages for lost opportunity or, alternatively, damages for increased costs may be recovered. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0215 University of Texas Southwestern Medical Center at Dallas v. Estate of Irene Esther Arancibia from Dallas County and Fifth District Court of Appeals, Dallas For petitioner: Daniel L. Geyser, Austin For respondents: Lance Caughfield, Dallas A principal issue is whether a claim notice as a jurisdictional prerequisite to an action under the Texas Tort Claims Act, imposed by a 2005 amendment, applies retrospectively to this claim based on a death in 2003. In this case Arancibia’s estate sued after she died days after surgery, during which a surgeon perforated her bowel. Southwestern Medical Center moved to dismiss the suit, on a jurisdictional plea based in part on the estate’s failure to give notice of the suit within six months of the occurrence. Her estate argues that Southwestern had actual notice because of an investigation after the death. The trial court denied Southwestern’s plea, rejecting its sovereign immunity claim and that it did not have notice. The court of appeals affirmed, holding that the 2005 amendment did not apply retrospectively to the 2003 surgery. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0836 In re Weekley Homes L.P. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Craig T. Enoch, Austin For real party in interest: Christopher H. Rentzel, Dallas The issue is whether the trial court abused its discretion by ordering computer hard drives produced for a forensic expert’s copying and searching. In this mandamus action, Weekley Homes argues that the trial court granted the motion to compel under Texas Rule of Civil Procedure 192 (outlining permissible discovery) and not Rule 196.4 (production of electronic or magnetic data). A company sued Weekley Homes in the underlying action over defective lots it bought from Weekley and that Weekley had certified. The company, HFG Enclave Lane Interests Ltd., asked for emails sent to and from four Weekley employees and, based on alleged inconsistencies in what Weekley produced, asked for an order to copy the hard drivers to try to retrieve deleted documents. The court ordered production of the drives and production of any relevant emails under certain restrictions, which included first review by Weekley’s lawyers. The court of appeals denied Weekley’s mandamus petition. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

08-0061 State of Texas v. Central Expressway Sign Associates, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Susan Desmarais Bonnen, Austin For respondents: Joe H. Staley Jr., Dallas, and Sydney Nell Floyd, Houston Among issues in this challenge to a condemnation award is whether expert testimony on billboard-advertising income and not just rental income to the landowner should have been be factored into the award. This action arose from the state’s condemnation for a freeway-interchange expansion in North Dallas. Central Expressway Sign Associates leased its easement on the land for a billboard to a second company that erected the billboard and sold advertising on it. After the state acquired the land itself, special commissioners determined the value of the easement at slightly more than $2 million, to be divided among the interest-holders. The state challenged that award, but the trial court excluded its expert, who calculated the fair market value of the remaining interests at $360,000 by accounting for rental income to Sign Associates but not for Viacom’s advertising sales. Jurors awarded $1.8 million after the trial court allowed testimony about advertising-sales income. The court of appeals affirmed. In this appeal, the state argues in part that its appraisal expert was improperly excluded, that his method accounted for the value of the easement and billboard lease as a whole and that advertising sales represented business income that should have been excluded. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-1031 City of DeSoto v. Justin White from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Amber L. Slayton, Dallas For respondent: Randy Doubrava, Austin The principal issue is whether a hearing examiner had jurisdiction over an appeal from a police officer’s indefinite suspension because the city failed to inform the suspended officer, as required by the Civil Service Act, that choosing a hearing examiner to review his disciplinary action limited his appeal of the examiner’s decision. White sued for reinstatement when the city, in its formal suspension notification, failed to follow the requirement that it inform him of restrictions on appellate issues from a hearing examiner’s decision. He had assistance of counsel when he chose the hearing examination route. The trial court granted him summary judgment and ordered his reinstatement, holding that the notification requirement on the hearing examination procedure deprived the examiner of jurisdiction over the case. The court of appeals affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0818 Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development and Research Corp. and Robert E. Tang from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner Akin, Gump: Jeffrey S. Levinger, Dallas For cross-petitioners/respondents National Development: Michael L. Jones, Dallas Among principal issues in this legal malpractice case are (1) whether the damage award should be reduced by what the plaintiff would have owed for a contingency fee in the underlying suit; (2) whether legally sufficient evidence supported damages based on stock value in the plaintiff’s joint venture; and (3) whether legal fees and expenses for an appeal allegedly taken because of the malpractice were recoverable as economic damages. National Development and Research sued Akin, Gump over the trial court’s determination that lawyers failed to submit proper jury questions. A jury in the malpractice action found for NDR. The trial court refused to reduce damages by the 10 percent contingency fee NDR would have paid Akin, Gump for the underlying litigation. The court of appeals reduced the award by other attorneys fees calculations, but otherwise affirmed. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

06-0975 Grant Thornton LLP v. Prospect High Income Fund, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Samara L. Kline, Dallas For respondents: Paul Lackey, Dallas In this auditor-liability case, the issues are (1) whether investment-fund bondholders presented enough evidence of fraud and misrepresentation to defeat traditional and no-evidence summary-judgment motions under the foreseeability standard in Ernst & Young L.L.P. v. Pacific Mutual Life Insurance Co. and (2) whether their evidence was enough to defeat summary-judgment motions on conspiracy to commit fraud and aiding and abetting fraud. The investment funds sued Grant Thornton, the auditor for the bond-issuing vacation-timeshare company, over financial statements for the bonds that failed to disclose material problems. Grant Thornton argues in part that the investments funds did not show in purchasing the bonds that they relied on the financial statements prepared for the timeshare company’s purposes or that the audit information caused their losses. The trial court granted Grant Thornton summary judgment on all claims, but the appeals court reversed on fraud and misrepresentation, among others. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0970 Lauri Smith and Howard Smith v. Patrick W.Y. Tam Trust from Collin County and the Fifth District Court of Appeals, Dallas For petitioners: Robert D. Ranen, Plano For respondent: Scott Hayes, Dallas The principal issue is whether $47,000 in attorneys fees are reasonable when the judgment obtained was for $65,000, less than a third of what was sought. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

07-0665 In re Morgan Stanley & Co. Inc. from Dallas County and the Fifth District Court of Appeals, Dallas For relators: Thomas R. Phillips, Austin For real parties in interest: Charles T. Frazier, Dallas The Supreme Court will hear arguments on whether arbitrator should decide incapacity issue of underlying contract. In this breach-of-fiduciary-duties case a principal issues is whether an arbitrator should decide if a contract is enforceable because one party allegedly lacked the mental capacity to agree to it. A guardian appointed for a Dallas woman’s estate sued investors, among others, alleging that the woman had been diagnosed with dementia about the time she transferred several securities accounts to the investment firm under agreements containing arbitration clauses. Morgan Stanley’s predecessor moved to compel arbitration of the dispute, but the probate court denied the motion and determined the woman did not have the capacity to conclude the agreements. The appeals court denied mandamus relief. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

06-1030 Zurich American Insurance Co., et al. v. Nokia Inc. consolidated with 06-1040 Federal Insurance Co. v. Samsung Electronics America, et al. and 07-0140 Trinity Universal Insurance Co. v. Cellular One Group all from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Joseph R. Knight, Austin; Russell McMains, Corpus Christi; and Kirk C. Chamberlin, Los Angeles For respondents: Eric Mayer, Houston, and Charles L. Perry, Dallas The Supreme Court will hear arguments on the issue of whether bodily injury includes harm to human cells allegedly caused by cell-phone radiation. The principal issue common to all three petitions is whether insurers have a duty to defend or indemnify cellular-telephone manufacturers from class lawsuits that allege human-cell injury from cell phone radio-frequency radiation but do not claim “individual issues of injury.” These three cases arise from six class actions that allege biological cell injury to cellular phone users who talk on their phones without headsets. By declaratory judgment or on summary-judgment motions, the insurers argued that they have no duty to defend in part because the underlying suits for the most part alleged no “bodily” injury as that term is normally used. In two of the cases the trial courts ruled in the insurers’ favor and in the third the trial court issued a judgment for the plaintiffs. The court of appeals held that insurers had a duty to defend against claims alleging cell injuries.

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

06-1030 Zurich American Insurance Co., et al. v. Nokia Inc. consolidated with 06-1040 Federal Insurance Co. v. Samsung Electronics America, et al. and 07-0140 Trinity Universal Insurance Co. v. Cellular One Group all from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Joseph R. Knight, Austin; Russell McMains, Corpus Christi; and Kirk C. Chamberlin, Los Angeles For respondents: Eric Mayer, Houston, and Charles L. Perry, Dallas The Supreme Court will hear arguments on the issue of whether bodily injury includes harm to human cells allegedly caused by cell-phone radiation. The principal issue common to all three petitions is whether insurers have a duty to defend or indemnify cellular-telephone manufacturers from class lawsuits that allege human-cell injury from cell phone radio-frequency radiation but do not claim “individual issues of injury.” These three cases arise from six class actions that allege biological cell injury to cellular phone users who talk on their phones without headsets. By declaratory judgment or on summary-judgment motions, the insurers argued that they have no duty to defend in part because the underlying suits for the most part alleged no “bodily” injury as that term is normally used. In two of the cases the trial courts ruled in the insurers’ favor and in the third the trial court issued a judgment for the plaintiffs. The court of appeals held that insurers had a duty to defend against claims alleging cell injuries.

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

06-1030 Zurich American Insurance Co., et al. v. Nokia Inc. consolidated with 06-1040 Federal Insurance Co. v. Samsung Electronics America, et al. and 07-0140 Trinity Universal Insurance Co. v. Cellular One Group all from Dallas County and the Fifth District Court of Appeals, Dallas For petitioners: Joseph R. Knight, Austin; Russell McMains, Corpus Christi; and Kirk C. Chamberlin, Los Angeles For respondents: Eric Mayer, Houston, and Charles L. Perry, Dallas The Supreme Court will hear arguments on the issue of whether bodily injury includes harm to human cells allegedly caused by cell-phone radiation. The principal issue common to all three petitions is whether insurers have a duty to defend or indemnify cellular-telephone manufacturers from class lawsuits that allege human-cell injury from cell phone radio-frequency radiation but do not claim “individual issues of injury.” These three cases arise from six class actions that allege biological cell injury to cellular phone users who talk on their phones without headsets. By declaratory judgment or on summary-judgment motions, the insurers argued that they have no duty to defend in part because the underlying suits for the most part alleged no “bodily” injury as that term is normally used. In two of the cases the trial courts ruled in the insurers’ favor and in the third the trial court issued a judgment for the plaintiffs. The court of appeals held that insurers had a duty to defend against claims alleging cell injuries.

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

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

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

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

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

07-0147 In re Calla Davis, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: Craig T. Enoch, Austin For real party in interest: Grant H. Brenna, Dallas The Supreme Court will hear arguments on the issue of whether county commissioners abused discretion by refusing to call liquor-sales election after election petitions certified. In this dispute over an order for a local-option election to approve beer and wine sales, the principal issues are (1) whether county commissioners abused their discretion by refusing to order the election after election petitions were certified and, if so, (2) whether the election should be called for the current justice-of-the-peace precinct (from which petitions were gathered) or separate elections for areas of two existing precincts that were in the precinct that voted “dry” in the 1870s. Commissioners acted because the Texas Alcoholic Beverage Code (section 251.80) requires a “wet” or “dry” area must remain unchanged until a vote in the same territory that comprised the precinct when its status was established. In this case the boundaries of the original JP precinct changed since it voted “dry” in 1877. The court of appeals denied mandamus relief that would have ordered commissioners to set the election.

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

06-0755 Frymire Engineering Co. Inc. v. Jomar International Ltd. and Mixer S.R.L. from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Stewart K. Smith, Irving For respondents: Hilaree A. Casada, Dallas The Supreme Court will hear arguments on the issue of whether equitable subrogation establishes standing for subcontractor seeking reimbursement from third party manufacturer for damages paid. In this case involving premises damages attributed to a faulty water valve, the principal issues are (1) whether a subcontractor obligated by agreement to pay any damages to the premises owner has standing to sue the valve manufacturer under the equitable-subrogation doctrine; (2) whether the doctrine’s application contravenes state contribution law on the theory that the contractor and the valve manufacturer are joint tortfeasors; and (3) whether applying the doctrine violates public policy on assigned claims. Through its insurer Frymire, the subcontractor repairing a water line, paid a Dallas hotel owner for flooding damages and got the hotel’s release from all claims. Frymire then sued Jomar, the valve manufacturer, alleging negligence, products liability and warranty breach. In uncontradicted testimony, Frymire’s expert attributed the flooding to a faulty valve. The trial court granted summary judgment in Jomar’s favor. The court of appeals affirmed, holding that Frymire did not have standing to sue because it paid the hotel to satisfy its own contractual obligation, not Jomar’s tort liability, and voluntarily agreed to indemnify the hotel owner.

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

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338 from Dallas County and the Fifth District Court of Appeals, Dallas For petitioner: Jeffrey C. Londa, Houston For respondent: Hal K. Gillespie, Dallas The Supreme Court will hear arguments on the issue of whether preemption issue involving suit for pay against Dallas mass transit agency. The issue is whether federal law preempts the transit authority's immunity in a suit seeking money damages to enforce a grievance resolution when federal money to the transit agency is conditioned on "fair and equitable arrangements" for transit employees. In this case the union alleges that DART, the transit agency, breached an agreement for a pay increase for DART employees. The trial court denied the transit agency's jurisdictional plea, based on governmental immunity. The court of appeals held that the fair-and-equitable-arrangements language in the federal Urban Mass Transportation Act preempted state immunity.

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

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

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

06-0491 In re Baylor Medical Center at Garland from Dallas County and the Fifth District Court of Appeals, Dallas For relator: R. Brent Cooper, Dallas For real parties in interest: William M. Hayner Jr., Gil L. Daley II, Dallas The Supreme Court will hear arguments on the issue of whether trial court abused discretion by ordering new trial ostensibly on juror affidavits. Among the principal issues in this medical-malpractice case are (1) whether Baylor’s mandamus request in this Court – on the same or similar issues dismissed as moot in an earlier proceeding before the Court – justifies bypassing the appeals court and (2) whether the trial court in one instance and its successor abused their discretion either by (a) vacating an order reinstating a judgment in Baylor’s favor or (b) by ordering a new trial based on post-trial juror affidavits in the absence of other grounds supporting a new trial. In an earlier stage in the underlying proceedings, after a jury verdict for Baylor, Baylor challenged a new trial order in a mandamus petition that the court of appeals denied. Baylor filed for mandamus relief in the Supreme Court, but later moved to dismiss it as moot because a new judge vacated the new trial order and reinstated the verdict. That successor judge then vacated her order, allowing a second trial to proceed. Baylor filed for mandamus relief directly with the Supreme Court.

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

06-0416 In re Columbia Medical Center of Las Colinas, et al. from Dallas County and the Fifth District Court of Appeals, Dallas For relator: R. Brent Cooper, Dallas For real parties in interest: Ben C. Martin, Dallas The Supreme Court will hear arguments on the issue of whether mandamus is proper for new trial ordered for ‘justice and fairness’. The issue is whether the trial court abused its discretion by granting a new trial “in the interest of justice and fairness.” In this case Columbia argues for a higher standard for a new trial ordered after a jury has rendered a verdict. The medical center contends in part that the absence of any right to appeal a new-trial order violates its due-process rights. The real party in interest, the wife of a man claiming he died because of medical malpractice, counters that Columbia is trying to do by a writ of mandamus what the Legislature has disallowed by statute and, to be successful, the Court would have to ignore precedent. Trials have been within the province of trial courts, she argues, because trial courts are best able to judge whether another trial is warranted. The appeals court held that the trial court had sufficient reasons to order the new trial.