The principal issues are (1) whether a health care-liability defendant who has not been served with process can be served as a party with an expert report to meet the statutory requirement for medical-malpractice claim; (2) if so, whether the expert report was properly served by certified mail; and (3) whether the plaintiff may be entitled to a due-diligence exception to the 120-day deadline if the report was not properly served. In this case Lane sent his expert report to Dr. Zanchi by certified mail to the hospital where the alleged negligence occurred and several other addresses. A receipt for only the one sent to the hospital was returned. Three previous attempts to serve process on Zanchi failed, but Lane's attorney did not determine that Zanchi was never served process until he readied service of the expert report and chose to serve it by certified mail. Zanchi was personally served with process 28 days past the statutory deadline for the expert report after the trial ordered substituted service. After a hearing, the trial court denied Zanchi's dismissal motion. The court of appeals affirmed the trial court in a split decision, with one dissent.

The principal issues are (1) whether legally sufficient evidence supported the "best interest" standard for terminating a deported Mexican citizen’s parental rights despite his continuing support for his children and visits with them with help from relatives since his deportation and (2) whether legally sufficient evidence supported the endangerment standard when that evidence was based in part on the father’s conviction for criminal activity with a minor a decade earlier. This case involves a father who left Wisconsin before his probation ended, then was arrested for probation violation in Texas when he sought to renew an immigrant-work permit and eventually deported. The court of appeals affirmed the trial court’s termination order.

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

10-0950 Enbridge Pipelines (East Texas) L.P. v. Avinger Timber, LLC from Marion County and the Sixth District Court of Appeals, Texarkana For petitioner: Stephen G. Tipps, Houston For respondent: Glenn Sodd, Corsicana The principal issues in this condemnation-valuation dispute involving land on which a gas-processing plant exists are (1) whether testimony by the landowner’s valuation expert violates the value-to-the-taker rule, that is, assessing the land value with the existing plant and easements instead of its value as rural residential property without those improvements and (2) whether the expert testimony violated the project-enhancement rule that precludes valuing for condemnation purposes the property as it has been enhanced. In this case Enbridge Pipelines took over an affiliate’s lease of Avinger Timber’s land used for the processing plant. When Avinger and Enbridge failed to agree on renewal terms, Enbridge, as a pipeline company with condemnation power, petitioned to take the land. In the valuation trial, the court denied the pipeline’s challenge to Avinger’s expert, who assessed value based on factors including the existing plant, the pipelines that connected to it and how much Enbridge would pay if the lease terminated and it had to remove the plant and other improvements. The court of appeals affirmed the trial court’s decision to accept the Avinger expert’s testimony and reject Enbridge’s. 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

10-0451? Natural Gas Pipeline Company of America v. William Justiss, et al.? from Lamar County and the Sixth District Court of Appeals, Texarkana? For petitioner: Brett Busby, Houston? For respondents: James R. Rodgers, Paris? The issues are (1) whether sufficient evidence supported permanent nuisance claims that accrued within the two-year statutory limitations; (2) whether property owners’ testimony was sufficient to support diminution-in-value damage to their property; and (3) whether prejudgment interest was proper if plaintiffs did not segregate past and future damages. In this case Justiss and other property owners sued over what they claim was “unbearable” noise and odor from a natural gas-compressor station built in 1992. Noise and odor complaints began shortly after the station began oprating. Justiss filed suit two months after the state cited the compressor station in 1998 for exceeding permitted emissions levels. After a jury trial, the trial court awarded more than $2.2 million for declining property values and almost $650,000 in interest. The court of appeals affirmed, holding sufficient evidence supported 1998 as the date the cause of action accrued. 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

06-0979 Sonat Exploration Co. v. Cudd Pressure Control Inc. From Harrison County and the Sixth District Court of Appeals, Texarkana For petitioner: Joel L. Thollander and Sam Baxter, Austin For respondent: David M. Gunn, Houston For intervenor Lumbermens Mutual Casualty Co.: Christopher Tramonte, Houston, and Arthur W. Landry, New Orleans The Supreme Court will hear arguments on the issue of whether choice of law applies to where an oilfield contract was made or where the primary indemnity obligation was performed. The principal issues are (1) whether choice-of-law analysis for an indemnification agreement is based on the place of performing the indemnity obligation or the place of performing the primary contract obligation and (2) whether, when a litigant uses the virtual-representation doctrine to appeal a trial court decision, the resulting appellate court decision binds an originally named party that did not appeal. Sonat, which agreed to mutual indemnity with Cudd in their oilfield-service contract, sued Cudd after Cudd refused to reimburse any of the $28 million that Sonat paid to settle a personal-injury suit. Cudd employees brought the suit in Texas after a Louisiana accident. Cudd argues that Louisiana law invalidates the mutual indemnity agreement. The trial court held for Sonat, concluding Texas law applied. Before an appeal, Cudd agreed that it would not appeal the choice of Texas law but would appeal the trial court’s application of it. The intervenor in this case – Lumbermens, Cudd’s insurer – then sought to appeal the trial court’s choice-of-law ruling, employing the virtual-representation doctrine to raise the issue that Cudd agreed to abandon. The court of appeals reversed the trial court on its choice-of-law, holding that Louisiana law governed the contract.

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

07-0135 East Texas Salt Water Disposal Co. Inc. v. Richard Leon Werline from Gregg County and the Sixth District Court of Appeals, Texarkana For petitioner: Greg Smith, Tyler For respondent: Gregory J. Wright, Longview The Supreme Court will hear arguments on the issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing give the court of appeals interlocutory jurisdiction. The issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing gives the court of appeals interlocutory jurisdiction. In this case the company sued to vacate an arbitrator’s award of two years’ salary, attorney’s fees and arbitration costs to an employee in a dispute over his employment agreement. The trial court vacated the arbitration award, ruling that it resulted from evident partiality, willful misconduct and gross mistake. On appeal, the court reversed and rendered judgment confirming the award, holding that the Texas Arbitration Act allows appellate review of a trial court order denying confirmation of an arbitration award.

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

Justice Willett is not sitting. 06-0845 Wagner & Brown Ltd., et al. v. Jane Turner Sheppard from Upshur County and the Sixth District Court of Appeals, Texarkana For petitioners: Macey Reasoner Stokes, Houston For respondent: Ben L. Mesches, Dallas The Supreme Court will hear arguments on the issue of whether oil and gas lease termination for failure to pay royalties automatically terminates the pooled unit. A principal issue is whether an oil and gas lease terminated for royalties nonpayment attributed to a clerical error automatically terminates the mineral-rights owner’s participation in a pooling agreement. In this case Sheppard leased her one-eighth mineral interests in almost 63 acres to a production company, C.W. Resources, for a quarter of the royalties free of production costs. C.W. Resources and Wagner & Brown had leases on most of the other seven-eighths mineral rights. Under a pooling agreement, Wagner & Brown combined Sheppard’s tract with others it leased and drilled two producing wells. Sheppard was not paid royalties within 120 days of production from those wells, which terminated her lease by its terms. She sued to declare her participation in the pooling agreement terminated because her lease had terminated and to declare she was entitled to a one-eighth share in production from the two wells producing on her tract. The trial court held that her interest was not subject to the pooled unit agreement. The court of appeals affirmed.