The principal issue is whether a 100-foot-wide street dedicated for public use conditioned on a provision for 15-foot curb lines on each side limited the public right-of-way easement to 70 feet. As part of a proposal to widen the street--Arroyo Boulevard, designated by the Transportation Department as Farm-to-Market Road 1847 in Los Fresnos--TxDOT sued NICO to remove a building that encroached on what the state claimed was its easement. In granting summary judgment in the building owner's favor, the trial court ruled that the public right-of-way easement was bordered by the curb lines, or 70 feet wide. The court of appeals affirmed.

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

10-0928 Raul Ernesto Loaisiga, M.D. and Raul Ernesto Loaisiga, M.D., P.A. v. Guadalupe Cerda and Cindy Velez from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Carlos Escobar, McAllen For respondents: Brendan K. McBride, San Antonio The principal issues are (1) whether alleged sexual assaults during medical examinations constitute health care-liability claims and (2) whether an expert report based solely on pleadings was sufficient. In this case Cerda sued Loaisiga, her daughter’s pediatrician, for assault, medical; negligence, gross negligence and intentional infliction of emotional distress after Loaisiga allegedly held her daughter’s breast as he examined her for a sinus ailment. Velez, a nurse at the clinic where Loaisiga practiced, sued him after he allegedly held her breast when checking her flu symptoms. Both Velez and Cerda submitted an expert report by a family practitioner to comply with health care-liability requirements. Loaisiga moved to dismiss the claims, arguing that the expert report was insufficient because the doctor based it entirely on the lawsuit pleadings and not on interviews with Cerda’s daughter or with Velez, and because the family-practice doctor was not qualified. The trial court denied the dismissal motion and the court of appeals affirmed, reasoning in part that sexual assault is not an inseparable part of medical care. 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

10-0523 Port Elevator-Brownsville LLC v. Rogelio Casados and Rafaela Casados from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Mary A. Keeney, Austin For respondents: David Keltner, Fort Worth The issue is whether a temporary employee provided by a staffing company is limited to a workers-compensation recovery against the client company when its policy has classifications not explicitly including the temporary employee and the client employer does not pay premiums specifically for temporary employees. In this case Casados’ parents sued Port Elevator after his work-site death. Casados was an employee of a temporary-staffing company that provided workers for Port Elevator. Port Elevator’s workers-comp insurer initially refused coverage. The trial court denied the elevator company’s summary-judgment motion, based on the “comp bar” provision limiting an injured worker’s remedies to workers-comp insurance. A jury found Port Elevator negligent in Casados’ death. On review, the appeals court held Casados was not covered under Port Elevator’s workers-comp policy and affirmed the trial-court judgment. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

09-0941 Service Corporation International and SCI Texas Funeral Services Inc. v. Juanita G. Guerra, et al. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Mike A. Hatchell, Austin For respondents: Mark L. Kinkaid, Austin Principal issues are (1) whether evidence of other suits against cemeteries owned by the parent company unconstitutionally affected punitive damages awarded in this mental-anguish claim involving mishandling a corpse; (2) whether the parent company is liable for subsidiary employees’ conduct; and (3) whether the recovery standard was satisfied for mental-anguish damages. In this case Guerra along with her children sued Service Corp. International and its wholly owned subsidiary, alleging, among other claims, intentional infliction of emotional distress for mishandling her husband’s corpse. Finding it had sold the Guerras side-by-side funeral plots but one had previously been sold, SCI Texas asked if Mr. Guerra’s body could be moved. When Mrs. Guerra said no, company employees moved his coffin a foot or more into the adjacent plot but did not tell her. During the trial the court allowed evidence of a class-action settlement involving SCI’s Florida subsidiary. Jurors found SCI, the parent, directly liable, assessed its liability at 70 percent and the Texas subsidiary’s at 30 percent and awarded $4 million in punitive damages. The court of appeals modified the punitive damages, then affirmed as modified. 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

08-0995 In re Columbia Valley Healthcare System, L.P. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For relator: Mike A. Hatchell, Austin For real parties in interest: Carlos Escobar and Juan A. Magallanes, Brownsville The issue is whether a legal assistant who worked on the other side of a case disqualifies her new law firm when the extent of her involvement in the case was allegedly administrative. In this medical-malpractice case attorneys for a hospital’s owners moved to disqualify the plaintiffs’ law firm because one of its legal assistants had been employed by the hospital’s lead counsel, responsible for filing privileged documents and handling investigative material and documents pertaining to strategy and settlement. Before she left the hospital’s law firm she signed a confidentiality agreement that obligated her not to work on any matter that she previously worked on for the law firm. The counsel who hired her admonished her not to work on cases she worked on at the previous firm, although she filed correspondence involving the malpractice case and did other work, including rescheduling a docket conference, handling correspondence and calls concerning it and copying the plaintiffs’ son’s birth certificate and Social Security records. The trial court denied the disqualification motion. The appeals court 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

(05-0653) Gilbert Kerlin, et al. v. Conception Sauceda, et al. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioners: Claudia Wilson Frost and Jeremy Gaston, Houston For respondents: Jules L. Laird Jr., Houston The Supreme Court will hear arguments of limitations issue in heirs’ claim to Padre Island land. In this case, a lawsuit by descendants of an original land-grant owner of Padre Island claiming interest in thousands of acres of the island, principal issues include (1) whether the statute of limitations was tolled by Kerlin’s absence from the state and (2) whether equity should bar the claim. Descendants of Juan Jose Balli — whose uncle was Padre Island’s namesake — sued Kerlin, claiming breach of contract, fraud and breach of fiduciary duty arising originally from Kerlin’s purchase from the Balli heirs of any Padre Island interests by quitclaim deed in the 1930s. The Balli claimants also sued two of Kerlin’s companies. Kerlin’s purchase reserved to the Balli heirs a fraction of gas and oil royalties, if any such royalty interest existed. Kerlin bought the interests by quitclaim deed based on the prospect that the Balli heirs might still have legal title, based on a rescinded sale of the land in 1830. Kerlin and his companies argue that the statute of limitations in this case cannot be halted because, though he was out of state since the quitclaim deeds were bought, his companies were Texas-based. And even if limitations were tolled, they argue, the heirs should be barred by laches from bringing the lawsuit because they waited too long to sue, to the point when almost all witnesses to the half-century-old dealings were dead. A jury awarded damages to the Balli heirs. The court of appeals affirmed.

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

06-0875 Ford Motor Co. v. Ezequiel Castillo, et al. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Craig A. Morgan, Austin For respondents: Roger W. Hughes, Harlingen The Supreme Court will hear arguments on whether summary judgment for contract breach was proper to enforce settlement. In this case involving allegations of a rogue juror, the principal issues are (1) whether the trial court erred by granting summary judgment on a settlement agreement without independent breach-of-contract pleadings and (2) whether the trial court erred by refusing additional discovery on jury misconduct allegations. Castillo and Ford promptly settled Castillo’s personal-injury suit, alleging an accident caused by Ford’s vehicle design defects, after the presiding juror sent a note to the judge asking what the limit on damages was. After the trial court dismissed the jury, Ford contended jurors told its lawyers that the presiding juror sent the note on her own and that the jury as a whole was leaning in Ford’s favor. The trial court denied Ford’s later motion to set aside the settlement agreement, based on jury misconduct or mutual mistake, or both, finding neither mutual mistake nor jury misconduct and ordered payment according to the agreement. When Ford did not pay, Castillo moved for summary judgment for breach of the settlement agreement. The trial court granted the motion. In a split decision, the court of appeals affirmed.

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

05-1042 JCW Electronics Inc. v. Pearl Iriz Garza from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: Thomas F. Nye, Corpus Christi For respondents: Jane Webre, Austin The Supreme Court will hear arguments on the issue of whether implied-warranty damages are subject to comparative liability restrictions. The principal issues in this product-liability case include (1) whether damages for breach of implied warranty are subject to the proportionate-responsibility statute or comparative responsibility under the Uniform Commercial Code chapter 2; (2) whether a contractor who installed a telephone in a jail cell can be liable based on breach of implied warranty for an inmate’s suicide when the inmate used a phone cord to strangle himself; and (3) whether JCW was deprived of its statutory suicide defense by the trial court’s denial of a jury question on it. Among other claims, Garza, mother of the man who committed suicide, sued for negligence and for breach of an implied warranty of suitability for a particular purpose. Jurors found for Garza on the warranty claim and determined the inmate was 60 percent negligent. The trial court denied the company’s motion for a take-nothing judgment, based on proportionate responsibility. The court of appeals affirmed.

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

06-0501 Juan Mario Villafani, M.D. v. Adela Trejo from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg For petitioner: TBA For respondent: Robert E. Brzezinski, San Antonio The principal issue is whether an appellate court has jurisdiction to consider an appeal from the trial court’s refusal to dismiss a medical-malpractice lawsuit, based on an allegedly inadequate expert report, when the plaintiff later took a nonsuit dropping the action but retaining the possibility of filing another. In this case, filed under the previous medical-malpractice statute, the trial court granted Trejo a nonsuit without prejudice after it denied the doctor’s motion for sanctions and dismissal. The court of appeals, in a split decision, affirmed.

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

05-0748 Southwestern Bell Telephone Co. v. Marketing On Hold Inc. from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg In this interlocutory appeal from a class-certification order, the principal issues are (1) whether a corporation advancing claims it got by assignment can serve as class representative in a challenge to Southwestern Bell’s billing for passed-along municipal fees and (2) whether the certified class met the requirement that common questions among the class predominate. Marketing On Hold, a firm that scrutinizes its clients’ telephone bills for improper billing, took five claims by assignment and sought to certify the suit as a class action. The trial court named it class representative for nearly 7,000 Southwestern Bell customers in three phone-service categories. Of the claims Marketing On Hold held by assignment, none was in one of those categories. The court of appeals affirmed the class-certification order.