The issues in this parental rights-termination suit are (1) whether the statutory provision permitting termination on a showing that a parent failed to comply with her service plan is applicable only to a child removed by the state because he was abused and neglected and (2) whether other grounds pleaded for terminating parental rights but not found by the trial court should have been considered on appeal to affirm the termination order. In this case the child subject to the termination proceeding was removed after his mother was accused of abusing his older sister. The trial court ordered the mother’s parental rights terminated on two bases of several the state alleged: That she failed to follow the service plan the state established for the child’s return to her care and that termination was in the child's best interest. On the mother's appeal that insufficient evidence supported the grounds on which the trial court relied, the court of appeals held that termination under the service-plan provision required evidence that the child's removal resulted from abuse or neglect of that child. The appeals court did not consider the state's argument that other pleaded grounds sufficed to terminate the mother's parental rights.

The principal issues in this case brought against a tenant operating a coin-operated laundry in an apartment complex are (1) whether the tenant is entitled to limited possession until evicted and whether it's liable in tort for wrongful possession and, if so, (2) whether the continuing-tort doctrine tolls the statutory limitations for alleged torts. In this case Aspenwood bought an apartment complex in foreclosure and tried to evict Coinmach's laundry facilities, but Coinmach ultimately won on appeal. After several years during which Coinmach paid rent (Aspenwood never cashed the checks) Aspenwood sued in district court for tort damages for trespass and for interfering with a contract Aspenwood had with another laundry-machine company and claimed damages to when Coinmach's lease ended with the foreclosure sale under the continuing-tort doctrine. The trial court ruled Coinmach was a tenant at sufferance and had a right to possession until judicially evicted and granted summary judgment for the laundry operator. The court of appeals agreed that Coinmach was a tenant at sufferance, but held that Coinmach did not have a possessory interest in the leasehold and that Aspenwood could sue for trespass back to when the lease ended and for tortious interference with a contract.

A principal issue is whether dismissal by nonsuit of a health care-liability claim delays the statutory expert-report deadline. In this case the Lidjis, suing on their son's behalf, nonsuited their claim 116 days after its filing (four days before the expert-report deadline). When they refilled the suit more than two years later, the Lidjis served an expert report on the same day. The Lidjis argue that their nonsuit tolls the deadline for the expert report. The hospital moved to dismiss, contending the deadline for the report passed. The trial court denied the hospital's dismissal motion and the court of appeals affirmed.

The issues are (1) whether the trial court has authority to award attorney fees as “necessities” for child support when the nature of the action is modification and not enforcement and, if so, (2) whether awarding 6 percent compound interest on those fees abused the trial court's discretion. Tucker sued his ex-wife, Thomas, to modify final orders to give him exclusive right to designate his children's primary residence. In her counterclaim Thomas sought sole managing conservatorship and increased child support from Tucker. The trial court denied Tucker's relief and Thomas's request to be appointed joint managing conservator, but increased Tucker's child support. The court awarded Thomas attorney fees as child support, finding the fees necessities benefiting the children. The appeals court affirmed in a split decision by the whole court.

This case challenging the city's retirement-pay calculations for firefighters raises two principal issues: (1) whether the Local Government Code (section 142.0017) requires the city to pay overtime for approved absences and (2) whether a state statute preempts the city's ordinance governing retirement pay by explicitly defining “salary” and making that definition mandatory. Bates and other firefighters sued the city for failing to calculate overtime pay in their lump sum “termination pay” that normally included leftover vacation and sick days. The city claims they had been paid overtime by mistake when they were working and deducted it from their termination pay. They also allege the city miscalculated their regular salaries, reducing their termination payments. The trial court found for the firefighters on both claims. The appeals court affirmed.

A principal issue in this dispute over a third-party administrator's payments to hospitals for services to HMO patients is whether the Texas Prompt Pay Statute requires privity between the hospitals and the health-maintenance organization. Several hospital groups sued Aetna for payment delays after Aetna refused to pay claims by two third-party administrators that went insolvent. In this case the court of appeals affirmed the trial court's summary judgment for Aetna, holding that the prompt-pay law required that the hospitals must have contracted directly with Aetna and not with its delegated claims-processors.

The principal issues in this legal-malpractice case are (1) whether the trial court abused its discretion by striking as mere conclusion portions of an attorney's affidavit estimating damages and (2) whether plaintiffs nonetheless presented sufficient evidence to defeat a no-evidence summary-judgment motion. Elizondo and his wife sued lawyers who represented him in negotiations with BP Chemical Co. for his injuries in the Texas City refinery explosion in 2005. Jose Elizondo settled for $50,000, BP's only counter to his $2-million settlement offer. But years later he brought this malpractice claim when he discovered one of the lawyers negotiating for plaintiffs went to work for BP. In his claim Elizondo argued that his lawyers failed to obtain a larger settlement and never discussed a possible loss-of-consortium claim by his wife. The trial court struck the Elizondos' expert's affidavit as conclusion without support and ordered a take-nothing judgment against them. The court of appeals affirmed, with one dissent.

The issues are (1) whether Texas law presumes in a suit filed in Texas involving personal injury or death in another state that the place of injury governs which state's law applies and, if so, (2) whether factors determining the most-significant relationship favor Mississippi's more stringent compensatory-damages caps instead of Texas'. In this interlocutory appeal the defendants argue that the trial court erred by applying Texas law to damages incurred or suffered by mostly Mississippi residents from a rural Mississippi pipeline explosion. The appeals court affirmed the choice of Texas law.

The issue is whether in a health-care liability case the required preliminary expert assessment must address both direct and vicarious liability theories. In this case the patient sued a temporary staffing agency over a male nurse's alleged inappropriate touching and questioning, claiming Certified EMS, the employer, was vicariously liable for the nurse's conduct and negligent itself in its employee's training and supervision. On an adequacy challenge to expert reports, the court of appeals rejected Certified EMS's objections, reasoning that at least one report was adequate for vicarious liability even though it was inadequate for direct liability.

The principal issues are (1) whether the law-of-the-case doctrine bars Lennar's complaint that the court of appeals wrongly defined property damage because Lennar, as the successful party in a previous appeal, did not challenge the point in the earlier appeal; (2) whether the costs submitted to the jury were covered costs under the excess-insurance policy--that is, whether Lennar's incurred costs to determine water damage in homes was "because of" property damage and whether Lennar properly segregated covered from uncovered costs; and (3) whether Lennar was legally liable to homeowners for repairs attributed to a faulty stucco simulant to avoid a settlement-without-consent clause in the policy that barred coverage. In this case Lennar sued Markel and other insurers for refusing to pay repair costs Lennar incurred to remedy problems, actual and prospective, to homes it sold with the defective imitation stucco. Markel's policy with Lennar covered damages because of "property damage." In the earlier appeal the appeals court established damages categories that excluded costs to remove the imitation stucco to inspect homes for water damage attributed to the defective product. From a jury verdict on remand for Lennar, the court of appeals reversed in part because it held the defined damages were broader than it allowed in the initial appeal. The appeals court also determined Markel should not pay because Lennar did not prove its liability to homeowners or seek Markel's permission to make the repairs it did.

The principal issues are (1) whether a city zoning ordinance more restrictive on locating a concrete-crushing plant than the Texas Clean Air Act allows is preempted by either the statute or the state constitution and (2) whether the zoning ordinance violates the Local Government Code's uniformity-of-requirements provision by imposing its restriction years after the company’s state-permit process was begun. In this case the company sued to declare the zoning ordinance impermissibly in conflict with the state's permit. The city denied Southern Crushed Concrete's application after the Texas Commission on Environmental Quality issued its permit. The appeals court affirmed the trial court’s ruling for the city.

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

11-0732 In re Stephanie Lee from Harris County and the 14th District Court of Appeals, Houston For relator: Scott Rothenberg, Houston For real party in interest: Clinton F. Lawson, San Antonio The principal issue is whether a mediated settlement must be enforced that provides, in the absence of family violence, a divorced mother periodic possession of her 7-year-old daughter when the mother is married to a registered sex offender. The trial court, considering the father’s testimony that the child slept between her mother and her new husband when he was naked, found the settlement not in the child’s best interest and refused to enforce it. Lee, the mother, argues that the only statutory exception to enforcing a mediated settlement is when family violence can be shown. 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

11-0059 El Paso Marketing L.P. v. Wolf Hollow I L.P from Harris County and the 14th District Court of Appeals, Houston For petitioners: D. Mitchell McFarland and S. Shawn Stephens, Houston For respondent: Solace Kirkland, Houston A principal issue is whether contract remedies preclude a power-plant owner’s negligence claim for damage from gas-delivery interruptions and contaminated gas. The plant owner, Wolf Hollow, contends it had no contract obligations because it assigned its gas-delivery contract to its agent, El Paso Marketing, its gas supplier. El Paso assumed the gas-delivery contract Wolf Hollow had with Enterprise, a pipeline company. Both the assigned contract and Wolf Hollow’s supply contract with El Paso had clauses waiving consequential damages resulting from interruptions and problems with gas quality. El Paso sued Wolf Hollow to declare it had no liability and brought Enterprise into the suit as a third-party defendant. Wolf Hollow then sued Enterprise for negligently causing the gas-supply interruptions that forced Wolf Hollow to buy replacement power and for negligently delivering contaminated gas that damaged its plant. The trial court granted El Paso and Enterprise summary judgment. The court of appeals affirmed in part, but remanded Wolf Hollow’s negligence claim against Enterprise. 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

10-0648 El Paso Field Services L.P. and Gulfterra South Texas L.P. v. MasTec North America Inc., et al. from Harris County and the First District Court of Appeals, Houston For petitioners: Murray Fogler and David M. Gunn, Houston For respondents: Kevin Dubose, Houston The issues in this dispute over alleged unforeseen costs in a pipeline-replacement project are (1) whether the court of appeals correctly ruled that El Paso’s contract with MasTec allocated risk of “foreign crossings” to El Paso and (2) whether the appeals court correctly applied federal common law instead of Texas common law. In this case MasTec sued for additional costs it encountered to work around and through other pipelines and obstructions for the new pipeline it contracted with El Paso to build. In the contract El Paso stated it would use due diligence to disclose such foreign crossings to MasTec, but its alignment sheets identified 250 and MasTec claimed it encountered perhaps 750. The contract specified that MasTec would assume all risks “notwithstanding” El Paso’s representations. A jury awarded additional costs to MasTec, but the trial court rendered judgment for El Paso notwithstanding the jury’s verdict. The court of appeals reversed, holding that under a U.S. Supreme Court decision risks were the owner’s responsibility from defective specifications that the owner was better able to determine. 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

10-0554 American Zurich Insurance Co. v. Daniel Samudio from Harris County and the First District Court of Appeals, Houston For petitioner: Robert D. Stokes, Austin For respondent: Byron C. Keeling, Houston The principal issues in this workers-compensation impairment-rating dispute are (1) whether a trial court has jurisdiction over an impairment-rating dispute when only one rating was before the workers-comp division and (2) whether the trial court or appeals court has jurisdiction to assign a new impairment rating if the one presented to the workers-comp division was invalid. In this case Zurich contested Samudio’s 20-percent impairment rating a doctor calculated for his spinal injury that resulted from a fall at work, arguing that the impairment rating was not properly calculated according to mandated American Medical Association guidelines. The court of appeals determined that the rating methodology the doctor used to establish Samudio’s impairment rating might not have been proper, but the rating was valid in the absence of any other presented in the administrative hearing. 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

10-0603 Texas West Oaks Hospital, LP v. Frederick Williams from Harris County and the 14th District Court of Appeals, Houston For petitioners: Ryan L. Clement, Houston For respondent: Charles M. Hessel, Houston The issue is whether a hospital employee’s negligence claim against his employer based on a fight with a paranoid-schizophrenic patient is a health care-liability claim and, if so, whether the employee is a “claimant” under the statute who must file an expert report. Williams, injured in the fight that resulted in the patient’s death, sued the hospital after the patient’s estate named him as well as the hospital in a health care-liability claim. In his cross claims, Williams alleged the hospital did not train him adequately to handle dangerous patients or adequately warn or supervise him with the patient. The hospital moved to dismiss Williams’ suit because he did not submit a health care-liability expert report. The trial court denied the dismissal motion and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

10-0513 ?Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel? from Harris County and the 14th District Court of Appeals, Houston? For petitioner: Holly H. Williamson, Houston ?For respondent: Reginald E. McKamie, Houston? For Amicus Curiae: Christopher Kaiser, Austin The issue is a whether a sexual assault alleged during a medical examination constitutes a health-care liability claim that would require an expert report. Gugel sued Wasserman for inappropriately touching her genitalia during an examination to determine the cause of pain and numbness in her lower back and legs and claimed he sexually harassed her in later calls. Wasserman moved to dismiss Gugel’s complaint because she did not file a health-care expert report. The trial court denied the doctor’s motion and the court of appeals affirmed. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

10-0429 Shell Oil Co., et al. v. Ralph Ross from Harris County and the First District Court of Appeals, Houston For petitioners: Marie R. Yeates, Houston For respondent: Mark L. Perlmutter, Austin Among principal issues in this royalty dispute are (1) whether Shell’s alleged fraudulent concealment bars limitations on the suit to recover underpaid royalties; (2) whether the lessee had a due-diligence duty to inquire about the payments based on statements and other public information; and (3) whether Shell’s weighted-average calculation for royalties complied with the lease. In this case the appeals court affirmed the jury’s verdict that Shell and related entities fraudulently concealed the basis for its royalty calculations on leased wells and those in pooled units and that the calculations breached Ross’s lease. Ross sued after the four-year limitations period had ended, but contends limitations are tolled if Shell fraudulently concealed the price structure for paying royalties on gas from the wells. Shell argues that Ross could have discovered the pricing discrepancies from publicly available information and, as with the discovery rule, fraudulent concealment should not allow Ross to avoid limitations. 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

09-0770 City of Houston v. Steve Williams, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Reagan D. Pratt, Houston For cross-petitioners/respondents: Vincent L. Marable III, Wharton The issues in this case by firefighters claiming the city miscalculated vacation and sick-leave benefits upon retirement are (1) whether the Court has jurisdiction over this interlocutory appeal; (2) whether city ordinances are written contracts that would waive governmental immunity; and (3) whether the firefighters have standing to sue, based on or despite “meet-and-confer” or collective-bargaining agreements. A principal factor is whether the city ordinances governing these retirement benefits amount to a contract as defined by Local Government Code section 271.151(a)(2) – “a written contract stating the essential terms of the agreement for providing goods or services” – that would waive governmental immunity. The court of appeals held that the ordinances constituted a unilateral contract accepted by the firefighters when they began work. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

(Justice Guzman not sitting) 09-0396 Reid Road Municipal Utility District No. 2 v. Speedy Stop Food Stores Inc. Ltd. from Harris County and the 14th District Court of Appeals, Houston For petitioner: C. Charles Dippel, Houston For respondent: Bill Russell, Victoria The principal issue is whether a corporate agent under the property-owner rule – allowing a property owner to testify to its value even if unqualified to assess property belonging to someone else – is competent to testify to corporate property’s value. Speedy Stop challenged a $9,300 condemnation award for a water easement, putting on as a valuation expert the general partner’s vice president charged with property acquisitions. He testified to a $62,000 property-value loss. The trial court granted a no-evidence summary judgment for the utility district, ruling that the vice president, who was not a broker or licensed appraiser, could not testify because the property-owner rule did not apply to a corporate entity. 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

08-0890 Offshore Specialty Fabricators Inc., et al. v. Wellington Underwriting Agencies Ltd., et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner Houston Exploration Co., S. Shawn Stephens, Houston For petitioner Offshore Specialty Fabricators, Harry L. Scarborough, Houston For respondents: Glenn R. Legge, Houston A principal issue in this insurance appeal is whether lined-through policy language should be considered as evidence that parties did not intend coverage. Offshore Specialty Fabricators, under contract to build an offshore oil platform, sued the underwriters when they refused to pay under an “all-risks” policy for keeping repair ships on standby during storms in the Gulf of Mexico. In contracting for coverage, the parties crossed through language providing “standby charges.” The trial court granted the offshore-rig builder summary judgment, ruling that the crossed-through language showed intent for a policy that otherwise was not ambiguous. In reversing that, the appeals court held that the stricken language showed unambiguous intent not to cover standby changes. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

(Justice Guzman not sitting) 08-0833 Anglo-Dutch Petroleum International Inc. v. Greenberg Peden P.C. and Gerard J. Swonke from Harris County and the 14th District Court of Appeals, Houston For petitioners: Gregory S. Coleman, Austin For amicus curiae, Abrams Scott & Bickley: Christopher S. Johns, Austin For respondents: Robert M. (Randy) Roach Jr., Houston In this dispute over an allegedly ambiguous contingency-fee agreement involving work by an attorney acting of counsel, the principal issues are (1) whether potential ambiguity should be construed against the attorney who drafted it for an existing client and (2) whether the trial court should have instructed jurors on the lawyer’s fiduciary duty to the client. In this case Swonke, of counsel to Greenberg Peden, worked for Anglo-Dutch on a lawsuit it eventually won with a $70.5-million verdict. Anglo-Dutch refused to pay Swonke the percentage he claimed he was owed because it contended Greenberg Peden, not Swonke individually, represented the company. The trial court ruled for Swonke. The court of appeals affirmed, holding in part that the ambiguous agreement should not be construed against the attorney who drafted it. 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

(Justice Guzman not sitting) 08-0961 Maria del Carmen Guilbot Serros de Gonzalez, et al. v. Miguel Angel Gonzalez Guilbot, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Thomas R. Phillips, Austin For cross-petitioners/respondents: Andy Taylor, Houston Principal issues arising from a family-business fight alleging theft and trademark infringement are (1) whether a third (“tertiary”) recusal motion defined by statute applies only when filed against the same judge; (2) whether a facially defective recusal motion allows the judge to take no action on the defective motion; and (3) whether, for a case remanded to state court after removal, the state court reacquires jurisdiction only if the federal clerk mails the remand order to the state court. In this case two siblings were accused of stealing the family herbal-tea companies’ assets and infringing on company trademarks. They moved to recuse a Harris County probate judge scheduled to hear the suit, then moved to remove the judge assigned to hear the recusal motion and the presiding judge who made the assignment. The presiding judge dismissed the recusal motions against him and the second judge for defects. The court of appeals reversed, holding in part that the state court acquired jurisdiction but the presiding judge could not rule on the recusal motion against him. 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

08-1044 In the Matter of B.W. from Harris County and the First District Court of Appeals, Houston For petitioner: Michael Choyke, Houston For respondent: Dan McCrory, Houston The principal issues are (1) whether a child 13 or younger can be adjudicated for a prostitution offense when a child under 14 cannot legally consent to sexual conduct and (2) whether the state violated the child’s due-process rights by failing to investigate whether she was compelled to prostitute herself. In this case the girl, a foster-care runaway, argues that she could not be adjudicated for an offense that involved an act she was legally incapable of consenting to. That would lead to an absurd result, she argues, taking her offense outside the general scope of juvenile law making juveniles subject to penal code violations as young as 10. And she contends her due-process rights were violated because she could have had an immunity defense to prostitution if juvenile prosecutors had pursued suspicion that she was forced into prostitution by her 32-year-old boyfriend. She essentially pleaded guilty (“true”) to the prostitution allegation, but moved for a new trial on her contention she was too young to be adjudicated for the offense. The trial court denied her 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 Eva Guzman, Justice Harriet O'Neill

08-1003 Kirby Lake Development Ltd., et al. v. Clear Lake Water Authority from Harris County and the 14th District Court of Appeals, Houston For petitioners: Lawrence J. Fossi, Houston For respondent: Ramón J. Viada III, The Woodlands The principal issues are (1) whether governmental immunity bars developers’ contract claims alleging the water authority failed to seek bond approval for reimbursing the developers’ water- and sewer-installation costs and, if not, (2) whether the water authority’s failure to place the reimbursement issue on one bond ballot breached the reimbursement agreement. Kirby Lane and other developers sued the water authority for failing to seek voter approval for a bond proposal to pay developers for the water and sewer work under an agreement. After two bond issues for reimbursing developers failed, the water authority won voter approval for bonds that did not specifically call for purchasing the water and sewer facilities. The trial court granted summary judgment for developers, denying the jurisdictional plea. The appeals court reversed in part and rendered judgment against the developers, holding that the water authority did not have immunity but that the contract was not breached. 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

08-0669 Dan Kelly and Laura Hofstatter v. General Interior Construction Inc. from Harris County and the 14th District Court of Appeals, Houston For petitioners: David C. Holmes, Houston For respondent: Ross A. Sears II, Houston In this jurisdictional challenge the principal issues are (1) whether Texas contacts to establish personal jurisdiction should be limited to pleadings that did not allege a disputed contract was a contact for a fraud claim or for Texas Trust Fund Act violations by the officers individually and (2) whether asserting jurisdiction over the corporate officers complies with federal due process and the Texas long-arm statute. In this case General Interior Construction, a Texas company, sued Kelly and Hofstatter over alleged payments due from Kelly and Hofstatter’s general-contracting business incorporated in Arizona. Their company agreed with another Arizona firm for improvements to a Texas hotel the other firm owned. GIC alleged breach of contract, fraud and misappropriation of trust money Kelly and Hofstatter’s firm held for paying subcontractors. The trial court found specific jurisdiction existed to require Kelly and Hofstatter to defend in Texas against all claims, but the court of appeals reversed on the contract-breach claim, based on Kelly and Hofstatter’s signing the contract as corporate officers. 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

(Justice Guzman not sitting) 08-0658 Carroll Robinson, et al. v. Bill White, City of Houston and Houston City Council, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Andy Taylor, Houston For respondents: Scott J. Atlas, Houston The principal issues are (1) whether proponents who drafted and campaigned for a proposition and voted for it have standing to sue to declare it effective and, if so, (2) whether a “poison pill” provision associated with a competing proposition violates state law. In this case Robinson drafted and promoted Proposition 2, for a city revenue cap, which Houston voters approved in 2004 but by a smaller margin than a proposition for a property-tax revenue cap on the same ballot. The City Council refused to adopt Proposition 2 because of a provision associated with Prop 1, that among inconsistent propositions the proposition approved by most voters would prevail, and because of a similar City Charter provision. The trial court granted summary judgment to Robinson and the other Prop 2 organizers, but the court of appeals reversed and dismissed their claims, holding the organizers did not have standing. 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

08-0453 Geffrey Klein, M.D., and Baylor College of Medicine v. Cynthia Hernandez from Harris County and the First District Court of Appeals, Houston For petitioners: Cameron Pope, Houston For respondent: Robert J. Talaska and Theodore G. Skarbowski, Houston In this medical-malpractice suit the principal issues are (1) whether the appeals court erred by dismissing Klein and Baylor's interlocutory appeals because Klein was not a state officer or employee and Baylor was not a governmental unit and (2) whether the trial court erred by denying Baylor and Klein's summary-judgment motions based on governmental immunity. Hernandez sued Klein and Baylor for injuries her baby suffered during a delivery at Houston's public Ben Taub Hospital by Klein, a Baylor resident acting under Baylor's contract with the Texas Higher Education Coordinating Board for training at Ben Taub. The two Houston courts of appeals have split on the question whether Baylor residents should be considered public employees entitled to take preliminary appeals when a trial court denies dismissal based on an immunity claim. 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

08-0169 Tangie Walters v. Cleveland Regional Medical Center, et al. from Harris County and the First District Court of Appeals, Houston For petitioner: Christopher Bradshaw-Hull, Houston For respondents: Diana L. Faust, Dallas, and Richard Sheehy, Houston The issue is whether the Texas Constitution’s open-courts provision cancels the statute of limitations on a medical-malpractice claim based on a sponge left in a patient’s abdomen 10 years before a doctor finally discovered it. Walters sued, seeking in part damages for medical bills she paid over the years because of pain she suffered as doctors misdiagnosed the source. The trial court granted summary judgment for the medical center, surgeon and nurse, based on the two-year limitations on a med-mal claim. The court of appeals affirmed. Walters argues that the constitution requires she knew or should have known of her injury before the limitations period ends to show the statutory limitation is arbitrary or unreasonable. The defendants counter that an open-courts claim requires an impossibility-to-know or exceedingly difficult-to-discover standard before the constitution overrides the limitations period. 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

08-0148 Regal Finance Co. Ltd. and Regal Finance Co. II Ltd. v. Tex Star Motors Inc. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Russell S. Post, Houston For respondent: Eugene B. Wilshire, Houston A principal issue is whether the Uniform Commercial Code’s provision governing a secured creditor’s sale of collateral requires compliance with industry practice as proof that the sale is commercially reasonable. In this case Regal sued Tex Star, a used-car dealer, to collect the deficiency between the amount it got from selling repossessed cars and the outstanding amount owed on the car-loan notes Regal bought from Tex Star. Regal’s agreement to buy notes from Tex Star obligated Tex Star to pay the unpaid balance on a defaulted note. This lawsuit arose from a dispute over which company was responsible for assuring a reserve account a bank required. The trial court awarded damages to Regal, but the court of appeals reversed, holding that Regal presented insufficient evidence that it sold the repossessed cars in a commercially reasonable way. 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

06-1018 D.R. Horton-Texas Ltd. v. Markel International Insurance Co. Ltd. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Robert B. Gilbreath, Dallas For respondent: Les Pickett, Houston A principal issue in this insurance dispute over an alleged construction defect causing mold damage is whether a duty to indemnify can exist when a duty to defend does not, based on pleading allegations. After settling with the complaining homeowners, D.R. Horton sued Markel because Markel refused to defend it in the homeowners' suit or to indemnify it as an "additional insured" under Markel's policy covering a responsible subcontractor. Markel moved for summary judgment, claiming the homeowners did not name the subcontractor in their lawsuit and arguing that D.R. Horton could not show the subcontractor's responsible without extrinsic evidence. 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

07-0784 and 07-0785 Harry Holmes II v. Douglas G. Beatty from Harris County and the 14th District Court of Appeals, Houston For petitioner: Richard P. Hogan, Jr. and Jack W. Lawter, Jr., Houston For respondent: Joseph S. Horrigan, Houston In this case challenging distribution of brokerage-account assets and securities certificates held jointly by deceased spouses, a principal issue is what the Probate Code requires to establish survivorship rights by agreement in otherwise community property. Holmes and Beatty, children from different marriages, were executors of each of their parents’ estates. The parents left about $10 million in joint brokerage accounts and securities acquired as community property and variously designated as “JT TEN” and “JT WROS” on the fronts. Two the accounts were labeled “JT TEN” and a box for “Joint (WROS)” was marked for a third account. Some certificates attempted to define the designations on the back as “JT TEN – as joint tenants with right of survivorship and not as tenants in common,” but others did not. The trial court found survivorship rights in two of six disputed asset categories, but the court of appeals reversed in those two and held a right of survivorship existed in one account in which the trial court had not (the box classifying the account as “Joint (WROS)).” 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

07-0784 and 07-0785 Harry Holmes II v. Douglas G. Beatty from Harris County and the 14th District Court of Appeals, Houston For petitioner: Richard P. Hogan, Jr. and Jack W. Lawter, Jr., Houston For respondent: Joseph S. Horrigan, Houston In this case challenging distribution of brokerage-account assets and securities certificates held jointly by deceased spouses, a principal issue is what the Probate Code requires to establish survivorship rights by agreement in otherwise community property. Holmes and Beatty, children from different marriages, were executors of each of their parents’ estates. The parents left about $10 million in joint brokerage accounts and securities acquired as community property and variously designated as “JT TEN” and “JT WROS” on the fronts. Two the accounts were labeled “JT TEN” and a box for “Joint (WROS)” was marked for a third account. Some certificates attempted to define the designations on the back as “JT TEN – as joint tenants with right of survivorship and not as tenants in common,” but others did not. The trial court found survivorship rights in two of six disputed asset categories, but the court of appeals reversed in those two and held a right of survivorship existed in one account in which the trial court had not (the box classifying the account as “Joint (WROS)).” 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

07-1026 Louis M. Ditta v. Susan C. Conte and Joseph P. Conte Jr. from Harris County and the First District Court of Appeals, Houston For petitioner: Michael J. Cenatiempo and Thomas C. Wright, Houston For respondents: Susan Conte: Karen L. Watkins, Austin Principal issues in this action to remove a trustee is whether a guardian’s appointment ends the statutory delay on a lawsuit brought for a disabled trust beneficiary or whether limitations remain tolled under the discovery rule. In this case Ditta, the appointed guardian, sought to remove Susan Conte as trustee of a trust benefiting her mother, who was declared incapacitated in1997. Ditta filed his action after an accounting, ordered after his appointment, that showed Susan Conte and her brother had taken money from the trust for their personal expenses. After a final accounting in 2000, the probate court ordered Susan Conte to repay the trust but only if her mother needed the money. Then in 2004 the guardian sued to remove Susan Conte as trustee, claiming her discord with her brother jeopardized her trustee duties, her use of trust funds had been improper and her debt to the trust created a conflict of interest. The trial court removed her as trustee and modified trust terms to permit a bank to be trustee, finding that she and her brother had spent money from the trust they should not have. On review, the court of appeals reversed, holding that Ditta’s lawsuit to remove Conte as trustee was barred by the statute of limitations. 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

07-0340 Spir Star AG v. Louis Kimich from Harris County and the First District Court of Appeals, Houston For petitioner: Sarah B. Duncan, Austin For respondent: Scott Rothenberg, Houston The issue is whether Texas has personal jurisdiction over a German manufacturer that allegedly does business in the state only though a Texas limited partnership exclusively selling its products in North and South America. In this case Kimich was injured when a defective high-pressure hose manufactured by Spir Star AG struck him. Kimich first sued his employer for premises liability, then Spir Star Ltd., the Texas partnership, and finally Spir Star AG, the manufacturer. The trial court denied the manufacturer’s special appearance to contest personal jurisdiction. Holding in part on representations made on Spir Star Ltd.’s Web site, the court of appeals concluded that the manufacturer established Spir Star Ltd. in Texas and, doing so, brought itself under Texas jurisdiction. 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

07-0490 Mann Frankfort Stein & Lipp Advisors Inc, et al. v. Brendan J. Fielding from Harris County and the First District Court of Appeals, Houston For petitioners: Warren W. Harris, Houston For respondent: Levon G. Hovnatanian, Houston Principal issues arising from this declaratory-judgment action are (1) whether a provision requiring an accountant to purchase clients if he left the firm was ancillary to his employment agreement and an enforceable covenant not to compete; (2) whether the Covenants Not to Compete Act preempts the plaintiff’s attorneys fees claim; and (3) whether the client-purchase provisions are severable. 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

08-0524 In re Department of Family & Protective Services from Harris County and the 1st District Court of Appeals, Houston For relator: Sandra Hachem, Houston For real party in interest: Douglas Ray York, Houston The issues in this parental-rights termination case are (1) whether the trial court’s new-trial order after the statutory dismissal deadline vacated a termination order rendered before the deadline passed; (2) whether an objection based on the trial court’s failure to dismiss was waived because it came after the new-trial order; (3) whether mandamus relief is appropriate when the state can pursue an accelerated appeal; and (4) whether Family Code section 263.401(b) restrictions are jurisdictional. 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

07-0783 Irving W. Marks v. St. Luke’s Episcopal Hospital from Harris County and the First District Court of Appeals, Houston For petitioner: James Eloi Doyle and Kimberly Hoesl, Houston For respondent: Jennifer H. Davidow, Houston The Supreme Court will hear arguments on whether an extension-of-time motion to remedy an medical-malpractice expert’s report is fatally late if filed after an initial hearing on the defendant’s dismissal motion. In this case alleging a hospital patient was injured when part of a bed collapsed, principal issues are (1) whether the claims implicate health-care liability and, if the claim poses medical-malpractice, (2) whether an extension-of-time motion to remedy an expert’s report is fatally late if filed after an initial hearing on the defendant’s dismissal motion. In the hospital recovering from back surgery, Marks fell after the footboard of his bed gave way when he grabbed it to pull himself out of bed. Among its allegations, his suit complained that the hospital failed to properly train its staff caring for him, failed to provide him necessary assistance, failed to provide a safe environment and failed to assemble the bed properly. St. Luke’s moved to dismiss the suit because no expert report was filed on time. The trial court dismissed and a divided court of appeals affirmed the dismissal. The first argument begins at 9 a.m. in the courtroom in Austin. Each side will have 20 minutes for argument. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court’s staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us

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

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

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

06-0948 City of Pasadena v. Richard Smith from Harris County and the First District Court of Appeals, Houston On rehearing For petitioner: Kevin D. Jewell, Houston For respondent: Heidi L. Widell, San Antonio For amicus curiae, State of Texas: James C. Ho, Austin The Supreme Court will hear arguments on whether a city has a right to appeal a hearing officer’s decision dismissing a disciplinary proceeding when the basis for the examiner’s decision was mistaken law. The principal issue is whether a city has a right to appeal a hearing officer’s decision dismissing a disciplinary proceeding when the basis for the decision was mistaken law. In this case Smith, a Pasadena police officer, appealed an indefinite suspension to a hearing examiner. State law provides for an appeal from a civil service commission decision, but not from a hearing examiner’s decision. The trial court dismissed the appeal on Smith’s jurisdictional plea. The court of appeals affirmed. In this Court, the city argues that the hearing examiner’s decision can be appealed under a provision allowing for an appeal when the examiner has exceeded her jurisdiction – and that a mistake of law is exceeding jurisdiction. 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

07-0043 Dynegy Midstream Services, Ltd. v. Apache Corp. from Harris County and the 14th District Court of Appeals, Houston For petitioners: Mike A. Hatchell. Austin For cross-petitioner/respondent: Geoffrey L. Harrison, Houston The Supreme Court will hear arguments on (1) whether the court of appeals erred by holding that the gas processor breached its percentage-of-proceeds contract by deducting “unaccounted-for” gas from what Apache was paid and (2) whether expert testimony may prove breach of an unambiguous percentage-of-proceeds contract by establishing custom for processors to pay for unaccounted-for gas even though such gas is not sold and does not generate proceeds. Principal issues are (1) whether the court of appeals erred by holding that the gas processor breached its percentage-of-proceeds contract by deducting “unaccounted-for” gas from what the producer was paid and (2) whether expert testimony may prove breach of an unambiguous percentage-of-proceeds contract by establishing custom for processors to pay for unaccounted-for gas even though such gas is not sold and does not generate proceeds. Apache sued because it claimed audits showed deduction for unaccounted-for gas in what Dynergy paid Apache under contracts that did not mention unaccounted-for gas. Jurors found for Apache, awarding more than $1.5 million, but the trial court rendered judgment notwithstanding the verdict for Dynergy. It also declared judgment for Apache on payments for future “field condensate” and awarded Apache $75,000 in attorneys fees. The court of appeals reversed, for the most part reinstating the jury’s findings for Apache. 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

06-0867 Pine Oak Builders Inc. v. Great American Lloyds Insurance Co. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Joseph H. Pedigo, Houston, and Joe S. Yardas, Conroe For respondent: Jennifer Bruch Hogan, Houston The Supreme Court will hear arguments on the principal issue of when duty to defend is triggered and whether evidence extrinsic to pleadings may be admitted to invoke a policy’s duty to defend. The principal issues are (1) whether evidence outside the pleadings and policy provisions may be introduced to determine a duty to defend and (2) whether the “exposure rule” or “manifestation rule” should determine when the duty to defend is triggered under an insurance policy. In this case Pine Oak sued two insurers with which it had commercial general liability policies (each insurer for a different policy period) after the insurers refused to defend the homebuilder from lawsuits filed by home buyers. Both insurers argued Pine Oak’s policies did not cover the home buyers’ claims. Great American contends its policy with Pine Oak did not cover Pine Oak’s own work – but would cover subcontractors’ work – and one home buyer’s suit only cited Pine Oak’s work in its allegations. In that case, Pine Oak argues that it should be allowed to prove by evidence beyond the lawsuit pleadings that a subcontractor’s work was at issue. Great American argues that its duty to defend Pine Oak also should depend on when the construction defects were manifest rather than when the exposure to harmful conditions began. The trial court granted summary judgment for the insurers. The court of appeals affirmed the trial court’s ruling that extrinsic evidence should not be allowed to show coverage, but reversed on when coverage was triggered.

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

06-0714 Barbara Robinson v. Crown Cork & Seal Co. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Deborah G. Hankinson, Dallas For respondents: Thomas R. Phillips, Austin, and Kimberly R. Stuart, Houston The Supreme Court will hear arguments on whether House Bill 4's “innocent successor” limits on asbestos liability violate the constitutional prohibition by retroactive application. The issue is whether the “innocent successor” limits on asbestos-related liability that House Bill 4 imposes (Civil Remedies and Practices Code Chapter 149) are unconstitutional either (1) as applied retroactively to an accrued cause of action or (2) as a special law. In this case Robinson appealed from a partial summary judgment in Crown Cork’s favor. Crown Cork moved for the summary judgment based on House Bill 4 provision that became effective after Robinson sued over her husband’s death from asbestos-related cancer. That provision, made applicable to pending cases, limited liability for asbestos claims involving companies that had acquired asbestos manufacturers before May 1968. In its summary-judgment motion, Crown Cork argued that it met the statutory limit on liability because it had paid more in asbestos claims than the market value of the asbestos manufacturer it acquired in 1966.

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

07-0040 In re GlobalSantaFe Corp. from Harris County and the 14th District Court of Appeals, Houston For relator: Christopher Dove, Houston For real party in interest: John M. Black, Houston In this mandamus seeking the pretrial court to retain jurisdiction, the Supreme Court will hear arguments on the principal issue is whether and by how much the Jones Act preempts Texas Civil Practice and Remedies Code chapter 90. In this petition seeking to compel the pretrial multidistrict litigation court to retain jurisdiction over a silica case, the principal issue is whether and by how much the federal Jones Act preempts the state’s multidistrict litigation procedures. Under the Jones Act, a ship’s hand or sailor claiming a work injury aboard ship may file a state lawsuit free of any minimum-injury requirement imposed on personal-injury suits by state law. Lopez, who claims injury from silica, argues that restrictions imposed on his case by Texas Civil Practice and Remedies Code Chapter 90, the MDL procedures, are substantive limitations forbidden by the federal law: The MDL procedures for silica cases exist to bar people with minimum injury from filing suit and a medical report that failed to meet a threshold standard to forgo the MDL pretrial process was a report the Jones Act barred. The MDL pretrial court remanded Lopez’s case to the trial court and the court of appeals denied GlobalSantaFe the mandamus relief it sought.

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

06-1084 Bison Building Materials Ltd. v. Lloyd K. Aldridge from Harris County and the First District Court of Appeals, Houston For petitioner: Tom Van Arsdel, Houston For respondent: Kurt Arbuckle, Houston The Supreme Court will hear arguments on the principal issue of whether an appeal can be taken from a trial court’s order vacating in part an arbitration award without a rehearing. The principal issue is whether an appeal can be taken from a trial court’s order vacating in part an arbitration award without ordering a rehearing. In this case Aldridge, a Bison employee, moved for arbitration of a damages claim for a work injury under an agreement stipulating all work-related injury claims would be arbitrated but providing that an objection to an arbitration decision could be reviewed by a court. Bison moved to dismiss his claim, arguing that he had waived his right to arbitrate his damages because, after his injury, Aldridge signed a subsequent workplace-injury benefits waiver and release forgoing “the right to file a legal action ... for any and all damages sustained by me because of my injury” for benefits he got from Bison’s plan. Aldridge sued to set aside the arbitration decision. Noting “unanswered questions regarding fair notice and ambiguity of the post-injury waiver agreement, the trial court vacated that part of the award precluding arbitration of the damages claim. In a split decision, the court of appeals dismissed what it called an interlocutory appeal because it had no jurisdiction.

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

06-0933 Southwestern Bell Telephone L.P. v. Harris County Toll Road Authority and Harris County from Harris County and the First District Court of Appeals, Houston For petitioner: Mike A. Hatchell, Austin For respondents: Bruce S. Powers, Houston The Supreme Court will hear arguments on the issue is whether the Transportation Code (section 251.102) allows for reimbursement of the utility’s relocation costs and provides for waiver of governmental immunity to enforce the claim. The issues in this dispute over costs of relocating underground cables are (1) whether the Transportation Code (section 251.102) allows for reimbursement of relocation costs and provides for waiver of governmental immunity to enforce the claim and (2) whether the utility has a sufficient property interest along a right-of-way to bring an inverse-condemnation claim for costs of moving its underground cables. In this case Southwestern Bell sued the county and toll-road authority for refusing to pay the $1.5 million it billed for relocating the cables to accommodate roadway expansion. The trial court awarded costs to the telephone company, but the court of appeals reversed.

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. 05-0986 Harris County Hospital District v. Tomball Regional Hospital from Harris County and the 14th District Court of Appeals, Houston For petitioner: Sandra Hachem, Houston For respondent: Randal L. Payne, Houston The Supreme Court will hear arguments on the issue of whether the immunity issue for hospital district sued for reimbursement by hospital authority. The issue is whether the Harris County Hospital District is immune from the Tomball hospital’s suit seeking compensation because it allegedly treated indigent patients that Harris County should have under state law. Tomball sued to be reimbursed for care given to Harris County patients that Tomball alleges were turned away from Harris County hospitals or referred by those hospitals to Tomball’s. Harris County claims in part that it is exempt from paying other hospitals for treating patients eligible for free care under the Indigent Health Care and Treatment Act. The trial court dismissed Tomball’s suit on Harris County’s jurisdictional plea. The court of appeals reversed, holding that the statute’s language that a hospital district could “sue and be sued” was an unambiguous immunity waiver.

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 O'Neill is not sitting. In re General Electric Co., et al. from Harris County and the First District Court of Appeals, Houston For relator: Kurt H. Kuhn, Austin For real parties in interest: Charles S. Siegel, Dallas The Supreme Court will hear arguments on the issue of whether statutory forum non conveniens factors, if met, compel dismissal. In this case, in which a multi-district litigation court refused to dismiss an asbestos claim for forum non conveniens, principal issues are (1) whether the dismissal motion must be granted if statutory factors are satisfied and (2) whether the supremacy clause is violated by trial court's stipulation that defendants waive their right to remove the case to federal court after dismissal for improper forum. In this case a Maine resident sued companies in Texas over asbestos disease he contracted while working in Maine. General Electric and the other companies moved to dismiss, arguing that Maine was a more appropriate forum than Texas. The multi-district litigation court refused to dismiss, reasoning that Texas was more appropriate to try the case even though neither the plaintiff nor his injury had any connection with Texas. The court noted that the defendants refused to agree not to remove the case to federal court once it was filed in Maine because the plaintiff, who was dying, would be subject to slower-acting federal MDL courts than Texas'. The court of appeals refused to grant mandamus relief.

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

Missouri Pacific Railroad Co. v. Patricia Limmer, et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Mike A. Hatchell, Austin For cross-petitioners/respondents: Deborah G. Hankinson, Dallas, and David Gunn, Houston The Supreme Court will hear arguments on the issue of whether state negligence claim is preempted if federal money improved a railroad crossing. In this case involving a fatal car-train collision, the principal issues are (1) whether federal law preempts a state negligence claim alleging inadequate warning at an “extra-hazardous” railroad crossing if remedial provisions were provided under federal programs and (2) whether a party objecting to a jury instruction allegedly presenting an erroneous negligence theory must also object to the form of an apportionment question including the erroneous theory. Missouri Pacific argues that federal law preempts the negligence claim, but Limmer counters that the railroad did not establish federal money was used for a warning device at the accident crossing. Limmer also contends that Missouri Pacific failed to object properly to the apportionment-of-damages jury question. The trial court set damages based on a jury finding the railroad was 85 percent negligent in part because the warning sign was obscured by rock piles and overgrown vegetation. The court of appeals reversed.

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

06-0574 20801 Inc. v. John L. Parker from Harris County and the 14th District Court of Appeals, Houston For petitioner: David P. Andis, The Woodlands For respondent: Barney L. McCoy, Houston The Supreme Court will hear arguments on the issue of whether ‘safe harbor’ element was shown in dram shop action. The principal issue is whether the appeals court erred by holding that a bar and pool hall owner failed to establish a “safe harbor” under Texas’ statutory dram shop law by proving that it did not encourage employees to serve alcohol to an intoxicated customer. Parker sued 20801, the owner of Slick Willie’s, alleging that its employees provided him perhaps 15 free drinks at the bar’s grand opening before he was assaulted in the parking lot by another bar patron. Parker claimed the drinks were a proximate cause of the head injuries he suffered in the fight. The trial court granted summary judgment to 20801 Inc., but the court of appeals reversed on the safe harbor provision.

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

06-0162 Donald Davis v. Fisk Electric Co., et al. from Harris County and the 14th District Court of Appeals, Houston For petitioner: Renuka Jain, Houston For respondents: J. Cary Gray, Houston In this wrongful-termination case alleging the firing was racially motivated, the principal issues are (1) whether the trial court erred by overruling so-called Batson challenges to peremptory strikes against five of six potential jurors who were black and (2) whether any difference exists between striking black potential jurors for race, which Batson prohibits, and striking them for acknowledging they had been victims of discrimination or because they reacted in voir dire to a racial epithet likely to be in trial testimony. For four of the five strikes, counsel offered as proof unsworn statements about nonverbal occurrences in the courtroom. The trial court overruled Davis’s objections to the strikes. The court of appeals affirmed, holding in part that the questions about discrimination and the racial epithet were asked of all potential jurors and that Davis did not dispute Fisk’s characterizations of nonverbal occurrences in the courtroom but only noted that no record evidence supported them.

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

05-0661 FKM Partnership Ltd. v. University of Houston Board of Regents from Harris County and the 14th District Court of Appeals, Houston In this condemnation case the principal issues are (1) whether remand is proper to allow the university to prove necessity in a condemnation proceeding and (2) whether the university must pay fees, expenses and temporary-possession damages when its amended condemnation petition proposes taking less property. FKM Partnership moved to dismiss the university’s amended condemnation petition, filed after special commissioners awarded damages, because the university’s new plans to take less property altered the subject matter of its original petition that the special commissioners had considered. The trial court dismissed the university’s suit and awarded FKM fees, expenses and temporary damages for the university’s possession of the property. The court of appeals reversed.

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

04-0431 PR Investments and Specialty Retailers Inc. v. State of Texas from Harris County and the 14th District Court of Appeals, Houston The principal issue is whether a road-design change deprives the trial court of jurisdiction to review condemnation damages when those damages were based on a different design. In this case PR Investments and Specialty Retailers argued that the trial court lost jurisdiction over the appeal because the Transportation Department eliminated the design to which they agreed for access from a street to their property. The department notified them of the change just before a trial de novo on a condemnation award. Instead of dismissing the proceeding, the trial court initially gave the department three options, including the one the department took that allowed it to proceed on the new design but likely face an inverse-condemnation lawsuit. Later the court granted PR Investments and Specialty Retailers’ dismissal motion, based on their jurisdiction argument, and ordered the department to pay sanctions. The court of appeals affirmed. On rehearing before the entire court, it split 5-4, holding that the condemnation statute does not prohibit the department from changing its design plans even if that change prejudices landowners. The court also held that the statute does not require that issues in a condemnation appeal be the same as what special commissioners considered in awarding damages.