06-0369 In re Jack Jorden, M.D., et al. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Bill Liebbe, Tyler The Supreme Court will hear arguments on the issue of whether pre-suit deposition rule supersedes medical-malpractice limits. The issue in this effort to take depositions before a lawsuit is filed on a medical malpractice claim, a procedure authorized under Texas Rule of Civil Procedure 202, is whether Rule 202 is trumped by statutory medical-malpractice restrictions. In this case a woman's son, a physician, hired a lawyer to investigate the possibility of suing doctors who treated his mother before she died of a heart attack. His counsel petitioned the trial court to depose the mother's primary-care doctor, an emergency-room doctor and representatives of the hospital and clinic where she was treated. The trial court denied the petition for pre-suit depositions. The court of appeals granted mandamus relief, holding that Texas Civil Practices and Remedies Code chapter 74, a provision of House Bill 4's sweeping tort reform, did not preclude Rule 202 depositions to investigate the merits of a suit.

07-0737 In Re Lester Collins, M.D. from Smith County and the 12th District Court of Appeals, Tyler For relator: R. Brent Cooper, Dallas For real party in interest: Peter Kelly, Houston The principal issues in the medical-malpractice case are (1) whether the trial court abused its discretion by prohibiting ex parte communication with non-party physicians and health-care providers who treated the plaintiff and listed by her on the statutory schedule for disclosure and release; (2) whether Civil Practices and Remedies Code section 74.052 prohibits ex parte communications with the med-mal plaintiff's physicians and health-care providers; and (3) whether federal law (HIPAA) prohibits ex parte communications and preempts section 74.052. 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

08-0136 John Kappus v. Sandra L. Kappus from Anderson County and the 12th District Court of Appeals, Tyler For petitioner: Logan Odeneal, Dallas For respondent: Richard E. Swift Jr., Palestine Principal issues are (1) whether an independent executor appointed by the trial court should be removed because the executor co-owns property with the estate the amount of which is subject to dispute and (2) whether the court of appeals erred by removing the executor as trustee of a testamentary trust. Sandra Kappus, the ex-wife of John Kappus's dead brother, sued on behalf of her sons. She claims that John Kappus's intended equal distribution of sale proceeds from a farm John and his brother jointly owned did not account for improvements the brother made to the property when they were married. After the brother's death, his will transferred his interest in the farm to a trust for his sons. The trial court calculated the share of proceeds due the trust at slightly less than 59 percent, instead of 50 percent, but refused to remove John Kappus as trustee because he jointly owned property with the trust. The court of appeals affirmed the trial court's calculation but removed Kappus as trustee because his adverse claim to the property created a conflict of interest. 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

07-0960 In the Interest of B.G., et al. from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Brent L. Watkins, Lufkin For respondent: Trevor A. Woodruff, Austin The issue in this parental-rights termination is whether Family Code section 263.405 is constitutional by imposing a 15-day deadline to file a statement of points to preserve appellate grounds. In this case the father acted as his own attorney in the termination hearing after firing his lawyer just before trial. He filed his statement of appellate points 40 days late after the trial court appointed a second attorney to handle his appeal. The first, appointed just after the hearing, did not file anything. In the statement the father claimed the termination order could not be supported by sufficient evidence and he had been prevented from offering certain evidence. The trial court found him indigent and his appeal not frivolous, but concluded that no meaningful issue had been preserved for appellate review and denied the father his request that he be furnished the hearing transcript without cost. On appeal he argued he was denied due process, but the court of appeals held the issue should have been presented to the trial court but was forfeited because it had not. 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

07-1042 ERI Consulting Engineers Inc. and Larry G. Snodgrass v. Mark Swinnea, et al. from Smith County and the 12th District Court of Appeals, Tyler For petitioners: Sarah B. Duncan, Austin For respondents: Greg Smith, Tyler In this case principal issues are (1) whether disgorgement and forfeiture may remedy a breach of fiduciary duty in a case without fees; (2) whether the court of appeals erred in finding no evidence supported the trial court's actual-damages award; and (3) whether a defendant company incorporated after the alleged fiduciary breach may be jointly and severally liable for damages from that breach. Snodgrass and ERI, an asbestos-removal consulting company, sued Swinnea, a former partner with Snodgrass in ERI. The suit alleged Swinnea helped his wife set up an asbestos-abatement company that competed with ERI's clients. Swinnea agreed not to work for and not compete with ERI when he sold Snodgrass his interest in ERI. After a bench trial, the trial court found Swinnea breached his fiduciary duty and induced the buyout by fraud. The court of appeals reversed, in part holding that disgorgement and forfeiture cannot be a fiduciary-breach remedy in a case without fees involved. 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

09-0313 Terri Loftin v. Janice Lee and Bob Lee from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Robert T. Cain Jr., Lufkin For respondents: Douglas J. McCarver, Nacogdoches Principal issues are (1) whether liability for alleged negligence in a horseback-riding accident is barred under the Texas Equine Activity Act and (2) whether a fact issue exists as to the horse owner's reasonable and prudent effort to determine the rider's ability to safely ride and manage the horse she rode. The Lees sued Loftin for Janice Lee's injuries when the horse she was riding bolted in a muddy bog and threw Lee. Lee alleged the horse panicked when it sank in the mud and Loftin was negligent in conducting the trail ride through the bog. The trial court granted Loftin summary judgment, based on the equine safety statute. But the court of appeals found fact issues existed as to whether inherent risks to horseback riding included riding on a muddy trail and whether Loftin properly assessed Lee's riding ability under the circumstances. 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

09-0377 Aaron Glenn Haywood v. Margarita Garza de Escabedo from Angelina County and the 12th District Court of Appeals, Tyler For petitioner: Mr. Peter M. Kelly., Houston For respondent: Mr. Frank G. Cawley, Addison The issue is whether Civil Practices and Remedies Code section 41.0105 annuls the collateral-source rule, either as an evidentiary rule or a damages rule, when an injured person's initial medical expenses differ from those "actually paid or incurred" by an injured person or on that person's behalf. In this case Escabedo moved to limit damages testimony that would show what Haygood, who was injured in an automobile accident, was billed. That amount differed by as much as $95,000 from what the medical-care providers would have charged him beyond what Medicare paid for his care but for Medicare restrictions. After the trial court allowed testimony on the $110,000 the hospital would have charged, the jury awarded that much as damages. The court of appeals held that section 41.0105 restricts not only recoverable damages but also relevant evidence to prove damages. 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

10-0548 Rusk State Hospital v. Dennis Black and Pam Black from Cherokee County and the 12th District Court of Appeals, Tyler For petitioner: Michael Murphy, Austin For respondents: Dennis Black, Tyler A principal issue is whether sovereign immunity may be raised in an interlocutory appeal from a trial court order that did not address subject-matter jurisdictional challenges that were not presented to the trial court. In this case the Blacks sued Rusk State Hospital over their son's suicide and filed expert reports required to establish a health-care liability claim. The state appealed from the trial court's order denying its challenge to the reports' adequacy and added in that interlocutory appeal its initial argument that the suit should be dismissed on immunity grounds. The court of appeals addressed the state's expert-reports challenge, but held that Civil Practice and Remedies Code section 51.014(a)(8), permitting interlocutory appeal for certain issues, does not authorize such an appeal on claims that have not been considered by the trial court. 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

10-0887 Wendell Reeder v. Wood County Energy, LLC, et al. from Wood County and the 12th District Court of Appeals, Tyler For petitioner: Charles Watson, Austin For respondents: Greg Smith, Tyler The principal issues are (1) whether the exculpatory clause in a model joint-operating agreement, allowing liability only for gross negligence or willful misconduct, extends to a working-interest operator's alleged breach of the operating agreement by neglect and (2) whether the appeals court erred by assessing the legal and factual evidence against a contract-breach standard instead of gross negligence or willful conduct. In this case Reeder sued to claim exclusive right, as operator, to use oil wellbores in a designated production unit. The working-interest holders countersued Reeder, claiming he breached the joint-operating agreement and allowed by his inaction the production unit to expire. On appeal, Reeder argued that the jury's award for the working-interest holders was based on insufficient evidence that he acted with gross negligence or willful misconduct even if the joint-operating agreement applied to him. Wood County and the other working-interest holders contended the gross-negligence and willful-conduct standard did not apply to the breach question and should not have been included in the jury instructions. The court of appeals determined that the gross-negligence and willful-misconduct standards from the exculpatory clause should not have been included in the jury questions, but held that Reeder breached his duties under the joint-operating agreement. 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

The principal issues in this premises-liability case are (1) whether the trial court erred by admitting spoliation evidence based on the grocer's retaining a security-video clip showing the plaintiff's fall and the moments before and after it but not longer, which might have borne on constructive notice of a grease spill; (2) whether the trial court generally erred by instructing the jury on spoliation (and specifically by placing the burden of disproving prejudice on Brookshire); and (3) whether legally sufficient evidence supported the jury's negligence finding. In this case Aldridge, a former professional football player, asked the see the video of his fall a few days after he slipped at the store. The store refused. After he sued, the store produced eight minutes of what store cameras caught on tape, starting a minute before Aldridge entered the store and ending a minute after he fell. The appeals court affirmed the trial court's decision to admit the spoliation evidence and its spoliation instruction.

The issue is whether, on the appeals court's remand to calculate pre-judgment interest, post-judgment interest accrues from the date of the appeals court's judgment or the original trial court's. On remand, Castle waived claim to prejudgment interest. The trial court then issued another judgment, ordering Castle to recover post-judgment interest from the date of the original judgment.

A principal issue in this trespass and contract-breach claim is whether damages should be the cost to restore the land or the loss in the property's fair-market value after the pipeline company bulldozed the pipeline route despite an easement agreement. The agreement specified that the company would bore a tunnel for the line. The Wheelers sued for trespass and breach of their easement contract. In the easement negotiations, Enbridge Pipelines' agent agreed that the pipeline company would thread the pipeline beneath the property. Enbridge argues that damages should be measured by the property's lost value because the damage was permanent. The Wheelers contend that the loss in property value, perhaps negligible, deprived them of their bargain and requires restoration damages. Jurors determined Enbridge both trespassed and breached the contract and assessed $288,000 in damages for the trespass and $300,000 for the contract breach. The trial court then awarded the Wheelers $300,000 on the breach-of-contract theory. The appeals court reversed and rendered judgment in Enbridge's favor, holding that the Wheelers waived a jury question necessary to calculate damages: whether the property damage was temporary (allowing restoration damages) or permanent (requiring damages for property-value loss).

A principal issue in this trade-secrets appropriation case is whether legally sufficient evidence supports damages based on a 3-percent reasonable-royalty calculation apparently applied to profits. In this case Helfand sued Southwestern Energy for breaching a confidentiality agreement by drilling in "sweet spots" Helfand identified by studying gas formations in five East Texas counties. Helfand offered Southwestern Energy a stake in leases she had in her study area and gave the company access to her data, subject to a one-year non-disclosure agreement and promise not to drill in the area on its own. A jury found for Helfand and awarded $11.4 million in damages, based on a 3 percent royalty Helfand argued was reasonable, based in part on negotiations with another exploration company. The appeals court affirmed those damages, but reversed others the trial court awarded for disgorgement and for contract breach.

The principal issues are (1) whether governmental immunity protects a municipality sued for contract breach over an alleged proprietary function and, if so, (2) whether the city's leasing lakefront property outside city limits was a proprietary function. This case presents the umbrella question: Does the "proprietary-government dichotomy" to waive immunity in tort cases against government apply to those arising in contract? Wasson sued the city for terminating its lease without just cause on city-owned Lake Jacksonville property. The city claimed Wasson violated its restrictions on commercial use of the property, but agreed to reinstate the lease as long as Wasson only rented to small groups or families and only for terms no shorter than a month. Jacksonville later evicted Wasson, claiming Wasson's new online advertisement violated the reinstatement agreement. The city answered Wasson by a plea to the court's jurisdiction, contending it had governmental immunity from the suit. The trial court granted the plea. The court of appeals affirmed, holding in part that the city's lease did not involve goods and services, the statutory basis to waive immunity on contract claims against a government.

The issue in this mandamus action, arising from one government's jurisdictional plea to block another's condemnation proceeding, is whether the trial court may decide the jurisdictional challenge before special commissioners value the property. The Lazy W district argues that special commissioners cannot be appointed until the trial court decides its plea to the jurisdiction, asserting government immunity in a water pipeline-condemnation proceeding. The trial court refused to appoint commissioners. The court of appeals reversed, holding the Property Code required commissioners to value the condemned land and the trial court's order otherwise was void.

The issue is whether an Title IV-D child-support enforcement judge has authority to modify conservatorship.

The issues challenging the trial court's order to withhold wages and split retirement benefits to enforce contractual alimony are (1) whether wages may be withheld under the Texas Family Code chapter 8 to satisfy the alimony agreement and (2) whether Texas Property Code section 42.0021 exempts retirement money from seizure in this case nor whether federal retirement law (ERISA) preempts Texas law.

In this dispute ultimately challenging the city's contention it is immune from a breach-of-contract claim (eviction based on alleged residential lease violation) the issues are (1) whether governmental immunity should bar the claim when the city's lease arguably results from both proprietary and governmental functions and (2) whether the city acted in a proprietary function by leasing lakefront residential lots outside the city then purportedly terminated the lease according to its governmental function.

In this challenge to the appeals court's take-nothing reversal from a contract-breach and fraud verdict, the issues are (1) whether the court erred by considering a deleted provision from negotiations to interpret the contract and (2) whether the court erred by rejecting a fraud claim on reliance grounds based on an oral promise to act when the written contract omitted that.

In this appeal from a jury finding for Lufkin on its claims for fraud and fraudulent inducement, the issues are (1) whether reliance was clearly disclaimed despite contract language that exchanges between IBM and Lufkin staffs about project goals and objectives "is the basis of our understanding"; (2) whether fraudulent-inducement damages preclude recovery for fraud; and, assuming liability for fraud and fraudulent inducement, (3) whether Lufkin proved its damages by legally sufficient evidence; (4) whether Lufkin suffered damages for contract breach; and (5) whether Lufkin is bound by incorporation of a clause limiting damages the trial court excluded because of a verification issue.

The issue is whether an insured has standing to sue his insurer, Farmers, for failing to pay him the personal-injury-protection policy limit when the insurer paid the medical-treatment charges in full at a discount and the insured has no other liability.

The primary issue in this case is whether incorporation of American Arbitration Association (AAA) rules constitutes clear and unmistakable evidence of an intent to arbitrate the question of arbitrability.

At issue in this case is whether the Texas Citizens Participation Act applies to legal malpractice claims.

The issue in this case is whether a jury finding that the operation of chicken farms was a temporary nuisance precluded the trial court from issuing a permanent injunction.