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

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

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 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

07-0131 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

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.