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.

The principal issues are (1) whether for a civil-conspiracy claim limitations are established by Texas Civil Practice and Remedies Code section 16.003(a) - two years - or four years under a vicarious-liability theory or as an independent claim, or both, and (2) whether limitations begins with the conspiracy's last act or at the time of the underlying tort.

The principal issue is whether the Court should adopt the "sham-affidavit" doctrine, that an affidavit contradicting previous testimony to raise a fact question to avoid summary judgment must explain the contradiction.

Two principal issues arise from this election ballot-language challenge: (1) whether the city established no material-fact issue exists that a municipal charter amendment's ballot description was legally sufficient and (2) whether the trial court abused its discretion by denying a new-trial motion based on the mayor's public statements after the election. Dacus and others sued to invalidate voters' 2010 approval of a proposition that would create a dedicated fund to pay for drainage-system improvements by charging property owners fees in addition to property taxes. They argue that those fees, a chief feature of the improvements' financing, were omitted from the ballot description and that how the ballot described it - a dedicated "pay as you go" fund - was misleading. They also cite Mayor Parker's statements after the election as new evidence that should have established their right to a new trial after the trial court granted the city summary judgment. The court of appeals affirmed summary judgment for the city, holding in part that the ballot language needed only to refer to the proposition's character and purpose, its chief features.

This case involves contract interpretation and repudiation, lost-profits damages, and the election-of-remedies doctrine.

A principal issue is whether the common-law mirror-image rule applies to civil procedure Rule 167 settlement agreements. Amedisys sued Kingwood in a dispute over Kingwood's hiring an ex-Amedisys employee. Kingwood offered $90,000 to settle "all claims asserted or which could have been asserted" against it. Amedysis wrote back to accept Kingwood's offer by the offer deadline, but the acceptance terms omitted reference to claims that could have been asserted. Kingwood refused to pay. The trial court granted Amedysis summary judgment for breach of the settlement contract. The appeals court reversed.

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

(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

In this employment retaliation case the principal issues are (1) whether the employee alleging age- and gender-discrimination engaged in protected activity when she complained by email and (2) whether legally sufficient evidence established a causal link between the email and her discharge.

The issues in this case involving oral and written severance agreements are (1) whether employees' contract-breach claims are preempted by federal law (ERISA) and, if not, (2) whether the agreements are valid unilateral contracts and (3) whether the company that bought the manufacturing plant at issue is a "successor" covered defined by the severance agreements.

The issue in this laundry-service breach-of-contract case is whether a cancellation clause providing damages at 40 percent of remaining weekly payments based on the last invoice constitutes an unenforceable penalty.

There are three primary issues in this case. The first is whether the executor of an estate owed a fiduciary duty to trust beneficiaries. The second issue is whether a decedent's estate was required to, and did, disclose all material facts in connection with a release executed by beneficiaries to the decedent's marital trust. The third issue is whether the trial court abused its discretion in excluding certain financial documents from the summary judgment evidence.

Principal issues are (1) whether Houston's air-quality ordinance intended to regulate emissions more stringently than state law is preempted by state law and (2) whether the ordinance unconstitutionally delegates law-making authority by incorporating state regulations and allowing changes the Texas Department of Environmental Quality may make. BCCA, a group of industrial owners in the Houston area, sued Houston over its ordinance establishing the city's own comprehensive air-quality program. Before the city passed the ordinance in 2007, it contracted with state air-quality regulators to monitor pollution standards the city imposed on businesses not regulated by the state. But Houston's newer ordinance and regulatory scheme resulted from the city's perception that the state's pollution enforcement was too lax. The trial court granted summary judgment to BCCA and enjoined the Houston ordinance's enforcement. The appeals court reversed.

The issue in this case is whether a contract is ambiguous.

A principal issue is whether the appeals court erred by remanding, in the interest of justice, the question whether the Texas Workers' Compensation Act's intentional-tort exception applies. The court of appeals at first reversed and rendered judgment against Lee, whose leg was crushed and later amputated when a crane fell under maneuvering stress. Then the court remanded, reasoning that its elaboration on the intentional-tort exception (before the Court's June 12 Mo-Vac Service Co. v. Escobedo decision) justified a remand. For the intentional-tort exception to apply in worker-comp cases, the Court held in Mo-Vac, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. The appeals court determined its outline of the substantial-certainty test's requirements required remand to allow Lee to support his argument that he was in a "danger" zone - a localized area - that Berkel's supervisor knew would result in injury.

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.

The issue in this wrongful-death action is whether an engineering firm working for a toll-road authority has derivative immunity involving a triple-fatality accident. Oliveres sued for negligence and premises defects after her son died in a collision with a wrong-way drunken driver who entered a tollway by way of an exit ramp. Oliveres alleged Brown & Gay failed to design proper signs to avoid the accident. Brown & Gay argues that it falls within the scope of the toll-road authority's immunity because the toll-road authority had the right to control its work. The trial court granted Brown & Gay's jurisdictional plea, but the appeals court reversed, holding that Brown & Gay was an independent contractor and not the Fort Bend County Toll Road Authority's employee.

The issues are (1) whether a common-law affirmative defense of an offset based on a theory of breach of contract conflicts with the Uniform Commercial Code's provisions that allow a bank to chargeback provisional funds to a depositor whose check was dishonored and (2) whether Elizondo is entitled to an offset under these facts.

In this condemnation-valuation case a principal issue is whether harmful error resulted from trial court's excluding evidence, based on the project-influence doctrine, that the state interfered with pollution remediation and depressed the property's value. In this case Caffe Ribs challenged a condemnation award of $7.3 million for property it argues was worth $9.9 million when the state condemned it. The trial court excluded Caffe Ribs' evidence that its land was subject to a pollution-cleanup plan and that the state interfered with the remediation plan. Based on the jury's fair-market valuation, the trial court awarded $4.9 million. The court of appeals affirmed. Caffe Ribs argues that the trial court misapplied the project-influence doctrine, which bars enhancing the value of land because of a new higher use based on the plans for it after condemnation.

In this case involving burn injuries from a fire at a church fundraiser, the issues are (1) whether volunteers for a vendor on the church property are invitees under premises-liability law; (2) whether the trial court's failure to instruct jurors to disregard a "nobody's responsible" argument should be reversed when unavoidable accident was not pleaded; (3) whether families of the four injured teenagers the waived any challenge to the evidence by not contesting the jury's zero-damages finding; and (4) whether the appeals court applied the correct factual-sufficiency standard in reviewing the no-liability verdict.

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.

In this dispute over an alleged contract breach to sell oil-and-gas working interests the issues are (1) whether a fact issue exists on the parties' intent to be bound by terms expressed in emails; (2) whether a fact issue exists that those emails showed the sellers waived a "definitive agreement"; and (3) whether the sellers established defenses under the Uniform Electronic Transactions Act.

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 issue in this case is whether an employee's report of sexual harassment by a coworker and comments about the matter to another coworker fall within the employee's scope of employment for purposes of the Texas Tort Claims Act.

The issues are (1) whether the implied covenant of seisen attaches automatically to a special-warranty deed and (2) whether the merger doctrine applies to bar Chicago Title's contract-breach claim.

The issue in this case is whether modifying an engineering plan without an engineer's statutorily required seal is a discretionary act for which the Texas Department of Transportation retains immunity under the Texas Tort Claims Act.

A principal issue is whether a fraud claim, alleging misrepresentations to get a widow's consent for an autopsy, constitutes a health care-liability case requiring a threshold expert report. Carswell sued St. Catherine, the Katy hospital where her husband died in 2004 after his admission following emergency treatment for severe pain. The hospital treated him with narcotic pain-killers. In her complaint Carswell alleged medical malpractice, claiming in part that St. Catherine's staff did not monitor her husband after different narcotics were given to him the morning he died. He was scheduled for release later that day. A hospital worker found him crossways in his bed, unresponsive. A year and a half after filing her malpractice suit Carswell amended her case to add the fraud claim, alleging she consented to a complete and independent autopsy but the autopsy actually was done by a hospital affiliated with St. Catherine and by a pathologist who was not trained to determine a cause of death. Conflicting evidence addressed whether the Harris County Medical Examiner's Office, which has jurisdiction to conduct autopsies for unexplained or mysterious deaths, was contacted about an autopsy or what the medical examiner was told. In response to the suit, CHRISTUS Health Gulf Coast, St. Catherine's owner at the time, moved to dismiss Carswell's case, arguing that autopsies fall under the state's medical-liability law's definitions of health care-liability claims that include "professional or administrative services directly related to health care." But Carswell never filed an expert report to substantiate her fraud allegations, which the law requires before a health care-liability case can go to trial. The trial court ruled the fraud claim was not one for health-care liability and rendered judgment in her favor. The appeals court affirmed the trial court's ruling on the fraud claim.

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 issues are (1) whether the evidence raises a material fact issue on each element of a regulatory taking claim and (2) whether the evidence raises a material fact issue under the Mayhew/Penn Central balancing test.

In this next stage of dueling between the city and the city's pension system over onetime municipal employees employed by spinoff city corporations - and whether and how much the city owes for their pension contributions - the principal issues are (1) whether under the first stage decision by this Court, Klumb v. Houston Municipal Employees Pension System, the employees are covered by the pension system; (2) whether the pension system's ultra vires suit appropriate to enforce a meet-and-confer agreement with the city; (3) whether the pension system's public-information suit is barred because it was against the city and not a public-information officer; and (4) whether the pension system instead of its board has standing under the pension-requirements statute.

The principal issue is whether a city order forcing homeowners to vacate their condominium units later reversed for violating their due-process rights precludes their inverse-condemnation suit for the time they were barred from their homes. After city investigations that found the building was not covered by an occupancy permit and the condominium units unsafe, Houston city officials ordered the residents to vacate their homes. In ensuing litigation, the vacate order was reversed on due-process grounds. The homeowners then sued for inverse condemnation. On that claim, the trial court granted the city's jurisdictional plea, which argued in part that the homeowners had no right to occupy the property without the required occupancy permit and that the city did not take the property for public use. A divided appeals court reversed.

At issue in this case is whether a police officer acted with reckless disregard such that the Texas Tort Claims Act's emergency exception does not apply, and whether the officer acted in good faith such that he is entitled to official immunity.

The issue in this case is whether the Tort Claims Act waives the City of Houston's immunity in a negligence suit for damages caused by a Houston Police Department officer.

Principal issues in this employment-discrimination appeal are (1) whether a fire captain's reassignment from "fire suppression" work to training duties - allegedly because he avoided firefighting - constituted unlawful discrimination without a medical evaluation and (2) whether the trial court properly gave injunctive relief without a damages award and the city, in response to an arbitration order, had returned him to firefighting duty before he filed his lawsuit. Proler also argues that the city's petition for review was not filed in time, so the Court lacks jurisdiction over this appeal. In this case the city challenges a trial court's decision affirming a hearing officer's order reinstating Proler, the fire captain, to duty in a fire station. Proler complained that his assignment to the training academy for a second time was discrimination based on a perceived but undiagnosed disability. In a split decision the appeals court upheld the trial court's employment-discrimination ruling.

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

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.

This case addresses whether the Texas Citizens Participation Act applies to claims for fraud, civil conspiracy, and breach-of-contract stemming from the sale of a major sports network.

In this appeal challenging summary judgment for the bank's affirmative Uniform Commercial Code defenses, in a case in which an account was emptied by fraud, the issues are (1) which of two deposit agreements govern; (2) whether the bank customer was negligent as a legal matter for failing to monitor the account when the account was depleted; and (3) whether the bank sent or made "available" bank statements to the customer when it mailed them to an imposter.

The principal issues in this case involving a Rule 11 agreement to designate experts are (1) whether the appeals court had interlocutory jurisdiction to review denial of a dismissal motion under Civil Practices and Remedies Code section 150.002(e) and the trial court's extension for plaintiff to file a merit certificate and (2) whether the defendant waived its right to dismissal based on its agreement to delay the date to designate experts. In this lawsuit Crosstex Energy Services sued the engineering firm that built its gas-compressor unit after an explosion and fire, alleging negligence and other claims. Within days of the limitations deadline for several claims, Crosstex and ProPlus agreed to delay the date to designate experts for the litigation. After the statute of limitations deadline passed, ProPlus moved to dismiss because Crosstex had not filed a certificate of merit with its complaint. Section 150.002(a) requires a certificate, based on an expert's affidavit, when a complaint is filed in a negligence case based on professional engineering services. Section 150.002(d) requires dismissal upon failure to file such an expert report and 150.002(e) specifies that a court order denying dismissal can be appealed before the case is tried. The trial court denied the dismissal motion and gave Crosstex an extension to file the certificate. On review, the court of appeals reversed, with one dissent, holding that it had interlocutory jurisdiction because the trial court denied ProPlus's dismissal motion. It held that ProPlus had not waived its right to seek dismissal when it entered the Rule 11 agreement and that Crosstex's failure to file the merit certificate required dismissal under the statute.

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

The issue is whether a claim for an implied-warranty breach for repair work is available exclusively under the Deceptive Trade Practices Act and subject to its two-year limitations.

The principal issues are (1) whether an implied easement by prior use endures after the necessity has ended and (2) whether the bona-fide purchaser affirmative defense applies against an easement claim by implied grant and, if so, what investigation a reasonable buyer must conduct.

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.

The issues in this challenge to a medical-malpractice verdict are (1) whether legally sufficient causation evidence supports the verdict; (2) whether affidavits from subrogation agents to establish medical expenses comply with Texas Civil Practices and Remedies Code section 18.001's requirements for reasonable and necessary expenses; and (3) whether the appeals court erred by holding the trial court properly excluded the defendants' damages expert.

In this wrongful-death case involving a fight at a company store between an employee and an employee's father, based on allegations of failure to supervise, a principal issue is whether ExxonMobil's effort to join an emergency physician as a third-party defendant must be supported by the doctor's ordinary negligence or by willful and wanton negligence (the emergency-physician liability standard under Civil Practice and Remedies Code chapter 74) to show proportionate responsibility under chapter 33.

In this back-injury disability case, alleging negligence against an oil-rig operator, the issues are (1) whether post-injury surveillance video should have been admitted and (2) whether evidence that Diamond paid Williams as much as 85 percent of his salary for several years to temper the jury's award and not, as the trial court decided, to be taken into accounting as an offset against the awarded damages.

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

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

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

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

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 principal issues in this fraud and contract-interference case are (1) whether Texas courts may exercise specific personal jurisdiction over Parex, a Canadian company; if so, (2) whether Parex's separate Bermuda subsidiary ratified Parex Canada's pre-incorporation jurisdictional conduct as its promoter; and (3) whether legally sufficient evidence supports specific personal jurisdiction over Ramshorn International, a Colombia company, based in part on a subsidiary's employee's conduct as agent.

In this property-tax challenge to assessing stored natural gas, the issues are (1) whether the tax constitutes an unconstitutional violation of the dormant Commerce Clause; (2) whether argument that the ad valorem tax violated state law was waived (and, if not, whether the tax violates state law); and (3) whether the natural gas, stored in a reservoir, was in interstate commerce.

The issue in this case is whether Exxon Mobil is considered an "additional insured" under National Union's umbrella policy or Starr Indemnity & Liability Insurance's bumbershoot policy.

In this subrogation dispute between a contractor and subcontractor's insurance carrier, the issues are (1) whether the standard subrogation endorsement, referencing a written contract required to obtain it, permits a court to consider the contract requiring subrogation; (2) whether the subrogation endorsement directing a court to consider an extrinsic contract permits the court to consider another part of the contract; and (3) whether, when the contract requires the subcontractor's insurer to waive subrogation, the court may look further than the contract's indemnity provisions and, if so, whether the contract's requirement that the subcontractor obtain workers compensation constitutes a liability "assumed."

In this contract-breach case the principal issues are (1) whether the detrimental-activity provisions in Exxon's executive-incentive programs are enforceable under Texas law and (2) whether a choice-of-law clause specifying New York law should be applied in disputes over the incentive programs should govern in this case. In this case Drennen, who retired after 31 years at Exxon when he lost his position, sued after Exxon canceled his incentive bonuses because he went to work for Hess, a company Exxon considered to be a competitor. Exxon alleged Drennen's employment with Hess created a material conflict that breached the incentive-program agreements. As he considered retirement, Drennen contends he was told his incentive awards would be secure as long as he did not work for four other major oil companies, a list that did not include Hess. The trial court decided in Exxon's favor, but the appeals court reversed, holding that the incentive agreements' detrimental-activity provisions are unenforceable under Texas law.

The principal issue is whether extrinsic evidence - evidence of factors beyond an unambiguous contract - may be considered to show a third party was a contract beneficiary.

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.

The issue in this case is whether Texas law recognizes implied-agreement privity for collateral estoppel purposes based on an alleged implied agreement to be bound to a bellwether trial.

The issues in this arbitration-award challenge are (1) whether the Texas Railroad Commission has exclusive or primary jurisdiction over claims in this case; (2) whether the award should be vacated based on alleged evident partiality of a neutral arbitrator; (3) whether the award should be vacated because the arbitration panel refused to stay its proceeding to permit the Railroad Commission to complete an investigation; and (4) whether arbitrators exceeded their powers by awarding declaratory relief and punitive damages.

In this deed-construction dispute involving a purported royalty reservation in a conveyance, a principal issue is whether the Duhig rule acts to prevent the grantors from claiming a fractional royalty interest reserved in a warranty deed that was not disclosed in previous conveyances.

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

Three principal issues in this contract-breach and business interference-tort case over a scuttled Bulgarian gas-field venture are (1) whether evidence supporting lost-market value was speculative and based on lost future profits; (2) whether Nevada law as the incorporation state determines whether a Phillips-owned company's two subsidiaries were its alter egos (and his); and, if Texas law governs, (3) whether legally sufficient evidence established that the two companies were Phillips' alter egos. Carlton sued Phillips, its onetime partner in the Bulgarian field development, after two Phillips-related companies allegedly plotted to supplant Carlton as the principal financing partner with a company holding exclusive exploration rights to the Bulgarian field.

The issues in this dispute over a statute-of-limitations waiver are (1) whether a loan guaranty waiving limitations to recover a deficiency is specific enough to make it valid despite public-policy concerns and (2) whether the affirmative defense that a limitations waiver is void for public policy is itself waived when raised in a response to a summary-judgment motion.

The principal issues in this case involving a fire that burned through a pesticide plant are (1) whether expert causation testimony was reliable if each opinion was founded on other experts' assumptions; (2) whether all experts' opinions taken together constitute sufficient evidence by elimination that a certain chemical caused the fire; and (3) whether expert opinion about the chemical's ignition was adequately tested. In this case Control Solutions sued Gharda, alleging a chemical Gharda sold Control Solutions - chlorpyrifos - ignited because it was contaminated when manufactured. The trial court awarded judgment for Gharda despite the jury's verdict against it. The court of appeals reversed, with one dissent, holding that each expert's testimony was reliable.

The primary issue in this case is whether a trial court must have territorial jurisdiction over an alleged offender's conduct to issue a protective order under the Texas Code of Criminal Procedure.

The issues in this appeal from summary judgment denying coverage under a directors-and-officers liability policy are (1) whether the insured-vs.-insured exclusion applies and (2) whether Primo is collaterally estopped from recovering against Great American.

The issue in this case is whether an interlocutory order that grants partial summary judgment and orders a party to sell real property within thirty days is an appealable temporary injunction.

The issues in this contest over unemployment benefits are (1) whether Harris County Appraisal Review Board members are employees of the county appraisal district and (2) whether they fall under the employment exception for members of the judiciary.

In this case, alleging Harris County in essence took the plaintiffs' property by failing to implement flood-control measures and by approving residential development without flood-mitigation efforts, the issues are whether (1) the county knew with substantial certainty that flooding damage would result; (2) its failure to implement flood controls caused damage to the plaintiffs' homes; and (3) the county's development approvals amounted to a public use. The Kerrs and other property owners contend the county's substantial certainty that the owners' homes would be damaged can be shown by allowing "unmitigated" development that aggravated runoff in heavy rains, as flood-control plans foretold; that flooding was substantially certain from the county's failure to complete a flood-control plan the county undertook; and that recurrent flooding bolstered that certainty. The county counters that the flood-control plan was abandoned because its financing did not work and faulty criteria undermined the plan's design. The trial court denied the county's jurisdictional plea. The appeals court affirmed.

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.

The issues in this case involving a road-rage shooting by an off-duty county deputy constable are (1) whether the county has immunity under the Texas Tort Claims Act's intentional-tort exclusion and (2) whether the deputy's firearm use authorized by the county falls under the tort-claims act's definition of negligent use of tangible personal property and, if so, (3) whether the county proximately caused the shooting injuries.

In this case alleging negligence based on patent representations in a previous sale, the issues are (1) whether a third party's attack on the patents' validity strips the Court of jurisdiction and, if not, (2) whether attorney immunity applies to the business-transactions context.

The issue is whether Gold, the plaintiff injured aboard a ship on which he was working before the ship was seaworthy, may claim maintenance and cure damages under the Jones Act.

The issues in this electrocution-injury case are (1) whether an injured contractor established a fact issue that the premises owner - the company that employed the electrician as a contractor - had actual knowledge of the danger or condition that led to the injury; (2) whether the injured contractor established a fact issue that the company exercised or retained control over how the electrician worked; and (3) whether the company owed the contracting electrician a duty.

The central question in this case is whether an employer is liable to an employee when that employee is injured while crossing a public roadway that divided the employer's property.

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

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

This case concerns a pair of ballot propositions, Propositions 1 and 2, that were submitted to Houston voters in 2004. Both were designed to provide tax relief to city residents. The ordinance submitting them to an election included a "poison pill" provision after the text of Proposition 1. The provision stated that "[i]f another proposition for a Charter amendment relating to limitations in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective."

Both cases concern the 2003 voter-approved Fire and Police Employee Relations Act, which created a judicial alternative to strikes and other labor techniques to protect the public from the dangers of a striking fire or police force.

In this case two principal issues are (1) whether the city's public-works director acted without authority in calculating impervious cover for imposing a drainage utility-district fee to pay for the effects of runoff and (2) whether the director acted without authority in determining which properties "benefitted" from the city's drainage system. Houston Belt & Terminal Railway and other railroads sued over drainage-utility assessments based on the public-works director's determination of how much impervious cover existed on their properties. They argue the basis for those assessments were aerial maps showing green and brown areas - brown assumed to be impervious cover - instead of digital-map data, as they contend the city ordinance requires, from tax plats, assessments and "other similar reliable data." By using the aerial maps, the director determined almost all the railroads' property was impervious. The trial court granted the city's jurisdictional plea to dismiss the challenge. The appeals court reversed in part.

Both cases concern the 2003 voter-approved Fire and Police Employee Relations Act, which created a judicial alternative to strikes and other labor techniques to protect the public from the dangers of a striking fire or police force.

Aside from the utility commission's exclusive-jurisdiction question, two other issues in this case are (1) whether the plaintiffs, suing for a fatal electrocution of a man who stopped to assist after a car wreck downed a power pole, have standing to have their claims heard by the Public Utility Commission and (2) whether the probate court, where the suit began, has exclusive jurisdiction

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

In this case involving allegations, among them in three lawsuits failure to warn and products liability, by sex-trafficking victims, the issue is whether the trial courts committed clear error by denying Facebook’s motions to dismiss on the basis of immunity under the federal Communications Decency Act.

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.

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.

The issues in this case are whether an insured's nonrecourse settlement with a third party may inform contract liability and damages against insurers after the insurers allegedly breached their duties to their insured and whether the no-direct-action rule precludes the third party from intervening in the insured's suit against its insurers.

The issue is whether the juvenile court erred in transferring a case to criminal district court where the defendant was a minor at the time of the murder but was charged after his 18th birthday.

The issues in this effort to prevent discovery of an anonymous blogger's identify are (1) whether Texas court rules governing discovery before a lawsuit is filed means that the trial court must have "personal jurisdiction" over the "John Doe" defendant--that is, the authority to hear a case against a person only after he has been served with papers notifying him of a suit--before his identity may be discovered; (2) whether the trial court abused its discretion by determining that the anticipated defamation and business-disparagement suit can be tried in Harris County courts when the court doesn't have jurisdiction over the anonymous blogger; and (3) whether the court abused its discretion by ordering the blogger's identify disclosed from Google, considering a First Amendment right to anonymous speech. The John Doe relator -- the blogger's pseudonym is Trooper -- claims the Harris County court must have personal jurisdiction over him for this Rule 202 proceeding, although the Ohio company bringing the discovery action argues that personal jurisdiction is not required at this pre-suit stage as it would be after a suit is filed. It contends that personal jurisdiction would be impossible when the potential defendant to a suit is anonymous. The company chairman, Robert T. Brockman, is from the Houston area. The trial court granted the discovery petition. The court of appeals denied the blogger's mandamus petition to prevent disclosure of his identity.

Beyond a question of mandamus jurisdiction, the principal issues are (1) whether the trial court abused its discretion by refusing to exclude the opposing corporate representative from a hearing at which trade-secret testimony was presented and (2) whether the trial court abused its discretion by ordering disclosure of an affidavit submitted in camera to the appeals court that contained trade-secret information. In this case M-I Swaco, M-I L.L.C.'s business-operation name, challenges the trial court's decision to allow an opposing party's corporate representative into a hearing on trade secrets. Jeff Russo, M-I Swaco's former business-development manager, sued to declare his non-competition agreement with the company unenforceable after the company demanded he stop working for a competitor. In a temporary-injunction hearing, M-I Swaco sought to exclude a representative from Russo's new company, also a party M-I Swaco sought to enjoin, during testimony about trade secrets Russo might have taken from his former employer. When the trial court refused the motion, M-I Swaco petitioned the appeals court for mandamus relief. The court of appeals denied the petition, but also denied Russo's motion to get an affidavit M-I Swaco filed for the appeals court's in camera consideration on testimony it planned to introduce. In the trial court again, the court granted Russo's motion to get the affidavit as a witness statement. M-I Swaco filed for mandamus relief in this Court.

The principal issues in this inconvenient-forum dispute are (1) whether a wrongful-death action in Texas arising from a nonresident's death in an out-of-state accident should be dismissed; (2) whether the Texas-residency exception to the forum non conveniens statute applies (a) if a plaintiff, a resident of Texas, sues as a wrongful-death beneficiary individually as well as administrator of an out-of-state estate and as next friend of another wrongful-death beneficiary and (b) a second wrongful-death beneficiary, also a Texas resident, sues only in an individual capacity; and (3) whether claims in the suit that may not be dismissed bears on the nonresident-claims analysis.

In this mandamus proceeding concerning a discovery order the issues are (1) whether the statutory medical-committee privilege protects documents potentially discoverable under the anticompetitive exception to the statutory medical peer review-committee privilege and (2) whether "anticompetitive action" requires that an anti-trust claim be pleaded. Memorial Hermann sought mandamus relief from a trial court's discovery order in a former cardiothoracic surgeon's defamation lawsuit against the hospital and several physicians. The surgeon, Dr. Miguel Gomez, alleges in part that his criticism of hospital-management changes and operations led to physicians manipulating death rates of patients he treated, submitting that data to the hospital's peer-review committees and distributing it by an Internet list service. Gomez resigned from the staff at Memorial Hermann Memorial City Medical Center and became surgery department chair at another west Houston hospital, then sued, moving to compel discovery from the statutory medical peer-review committee and the hospital's medical committee. Memorial Hermann contends that documents held by the medical committee are privileged and that privilege overcomes the anticompetitive exception to the privilege attached to documents held by the medical peer-review committee. The trial court granted Gomez's discovery motion. The court of appeals denied the hospital's mandamus petition.

The issue in this dispute over a hospital lien, by an uninsured patient contesting the hospital's bill as unreasonable, is whether the hospital's payment agreements for insurers and federal Medicare and Medicaid providers may be disclosed as relevant.

The issue in this case is whether the trial court erred by denying the defendants' motion to dismiss for forum non conveniens.

A principal issue in this suit alleging an insurer's mishandling of a Hurricane Ike-damage claim is whether, in reviewing a new-trial order after In re Toyota Motor Sales, an appeals court can determine if factually sufficient evidence supports the verdict or if the trial court is entitled to more deference. In this case the Bents successfully moved for a new trial after a jury split its verdict on the Bents' claims that the insurer breached their policy (no) and violated the Deceptive Trade Practices Act (yes). United States Automobile Association, the insurer, petitioned for mandamus relief, which the court of appeals granted after conducting a factual review to determine whether evidence supported the jury's verdict. The Bents argue that such a review amounts to double stacking factual-sufficiency reviews, allowing the appeals court to substitute its judgment for a trial court's after that court heard evidence and observed witnesses and ruled evidence did not support the verdict. But USAA contends that such a factual review is an appropriate guard against the trial court's substituting its judgment for the jury's.

In its mandamus petition the state presents this issue: Whether county election officials, the respondents in this proceeding, must reject applications for mail-in ballots that claim "disability" under Texas Election Code section 82.002(a) based solely on the "generalized risk of contracting a virus." In related litigation Travis County initially sued to declare the novel-coronavirus-contagion fear satisfied the Election Code's disability prong for qualifying to vote by mail. In answering this mandamus petition Travis County and four others argue in part that the state's contention that county elections officials are subject to mandamus - to be ordered to comply with a "ministerial duty" to follow state election law - instead imposes on county elections officials a duty to accept and process applications for mail-in ballots without inquiring about a voter's claimed disability. Under the Texas Election Code a voter may seek to vote by mail if they claim a "disability" that would prevent them from voting in person. The attorney general contends the county elections officials who are respondents in this case have indicated that contagion fears meet the Election Code's disability definition despite the election law's confinement of it to a "sickness or physical condition" on election day. The counties' broad interpretation, the state argues, has created confusion about the law and is leading to increasing vote-by-mail applications based on what the state contends is an erroneous legal interpretation. In response, the counties contend the trial court properly determined in part that lack of coronavirus immunity is a physical condition that satisfies the disability definition.

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

In addition to the exclusive-jurisdiction question, an issue in this case alleging a utility power-pole contractor negligently contributed to Hurricane Harvey flooding is whether the so-called filed-rate doctrine controls. The negligence, nuisance and water code-violation claims are based on flood damage Houston homeowners blame on roadway “mats” the power company's contractor used for a power substation's construction. Those mats allegedly clogged drainage in a nearby bayou when Harvey's rains washed them away. Texas-New Mexico Power argues the company's tariff has a force-majeure clause that bears on the homeowners' claims. The company contends the filed-rate doctrine bars a customer from suing over issues that a publicly filed tariff's terms govern.

(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

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.

In this parental-rights termination case the issues are (1) whether for Texas Family Code section 263.401 dismissal purposes the appeals court wrongly concluded a hearing to establish parentage does not count as commencing a trial on the merits; (2) whether a trial court's docket entry granting an extension constitutes an extension under Texas Family Code section 263.401; and (3) whether section 263.401 is unconstitutional.

The issue in this case is whether evidence of a causal connection between a parent's drug use and any alleged endangerment of the child is required to terminate a parent's rights under Section 161.001(b)(1)(D) or (E) of the Texas Family Code.

A principal issue is whether the appeals court erred by not considering alternative grounds to terminate parental rights that were properly pleaded and supported by evidence.

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

The issues in this challenge to Houston's policy providing spousal benefits to same-sex couples married outside Texas before state bans on same-sex marriages were declared unconstitutional are (1) whether the Court has jurisdiction over this interlocutory appeal; (2) whether the plaintiffs have standing as taxpayers to bring the challenge; and (3) whether the court of appeals erred by reversing the temporary injunction without addressing questions of retroactive effect of the same sex-marriage decision on state law.

In this contract-breach suit, among principal issues are (1) whether substantial-compliance doctrine applies to contract-notice provisions outside of the insurance context; (2) whether the language "no claim shall be made" by either party against the other for consequential damages creates a covenant not to sue; (3) whether the appeals court erred by relying on the jury's agency finding in reviewing sufficiency of the evidence and (4) whether Texas Civil Practice and Remedies Code section 38.001 bars a limited-liability company from responsibility for attorney fees.

This declaratory judgment suit addressed whether a property's deed

The issue is whether the university, by using a copyrighted photograph without permission or attribution on a website, constitutionally "took" the photo, entitling the photographer to compensation.

The issues in this medical-malpractice case are (1) whether the appeals court erred by finding the broad-form negligence jury charge improper when the trial suggested failure to obtain informed consent but without evidentiary or legal support and (2) whether plaintiff's sole expert should have been barred from testifying by statute.

In this challenge to pension-board actions involving Houston city employees the city transferred to a non-profit corporation - doing the same work, but outside the city's pension plan - the principal issue is whether the pension board acted without authority by defining the transferred workers as municipal employees subject to the pension system. Employees who were transferred from the city's convention service sued the pension system, one group arguing that they should be allowed to draw pensions because their city employment ended and another contending that they should be able to stop their pension contributions as they deferred their retirements. In its dispute with Houston, the pension system countered two moves to remove the employees from the pension plan. When the city first transferred the employees to a city-controlled government corporation, the pension system changed its definition of municipal employee to include workers hired by a local-government corporation. Then the city moved the employees to a non-profit company that would lease their services to the city-controlled corporation. The pension-system board continued to consider the employees to fall under the pension plan. The trial court granted the pension system's jurisdictional plea and the appeals court affirmed, holding in part that the pension system's employee definition was within its authority under state law.

This is a suit challenging the CA's ruling that two municipal taxpayers lacked taxpayer standing to challenge Houston City Officials alleged illegal misallocation of their property tax proceeds.

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 issue is whether Houston's historic-preservation ordinance is a zoning law subject to Texas Zoning Enabling Act and the city charter's zoning limits.

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

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: Ramon 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

The issues in these cases surround class certification: whether the trial courts performed the required "rigorous analysis" to determine whether the certification prerequisites were met and whether the certification orders listed all the elements of the 175 defenses, as the Rules of Civil Procedure require. In addition, one petition asks whether a court of appeals' opinion declining an application for a permissive interlocutory appeal must state a basic analysis for doing so and whether the requirements for certifying an interlocutory appeal were met.

In this case in which Gaytan alleges an acne treatment at a spa discolored her the issues are (1) whether her claim is for health-care liability claim; (2) whether a court may view an amended petition filed after the 120-day expert report deadline to determine whether a claim is subject to the medical-liability act; and (3) whether, if dismissed, defendants are entitled to legal fees.

In this defamation case based on litigation publicity the principal issues are (1) whether the judicial-proceedings privilege or attorney-immunity doctrine protected out-of-court press releases and social media posts and, if not, (2) whether the appeals court erred by affirming more than a nominal sanctions award under the Texas Citizens Participation Act.

The main issue in this appeal is whether the plaintiffs' negligence suit against Leibman to recover damages for injuries sustained in a dog attack triggered the Texas Medical Liability Act's expert-report requirement.

The principal issues in this defamation case by an ex-husband against his ex-wife are (1) whether Hogan complied with the Defamation Mitigation Act by sending a sufficient correction, clarification or retraction request and, if not, (2) whether the consequence for an insufficient request is dismissal.

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 issue is whether a hospital visitor's lawsuit for injuries from a fall on a wet lobby floor constitutes a health care-liability claim requiring a threshold expert report to proceed. After her fall, Ross sued the hospital for premises liability but did not file an expert report. As her claim was pending, the Court decided Texas West Oaks Hospital LP v. Williams, holding that a suit by a hospital employee injured by a patient constituted a health care-liability claim. The trial court dismissed Ross's claim, determining that hers also was a health-care claim that required an expert evaluation. The appeals court affirmed.

The issue is whether a default is imputed to a probate applicant presenting a will that had been filed before but outside the requisite time restriction.

In this interlocutory appeal from a denial of a special appearance, the issues are (1) whether specific personal jurisdiction exists over defendants who were in Texas twice to discuss asbestos liability, executed agreements in Texas to divest themselves of liability and transferred an affiliate company to a trust to a Texas management company to do so; (2) whether the trial court's implied special-appearance findings should be reviewed de novo in the absence of live testimony; and (3) whether pleading defendant companies' jurisdictional contacts as a group satisfies the initial burden to plead contacts for each.

The issue is whether a purchaser who bought a yacht "as is" from a seller, the yacht's second owner, may claim breach of an implied merchantability warranty that allegedly occurred when the boat's engines were shipped by the manufacturer. In this case the appeals court reversed the trial court's judgment for Man Engines, relying on Nobility Homes of Texas v. Shivers. That case, in 1977, held that a buyer who purchases used goods may sue a manufacturer for breaching an implied warranty that the product will work as intended based on the initial sale, without the need for contract privity between the later buyer and the manufacturer.

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

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

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

The principal issues in this defamation and business disparagement case are: (1) whether one of the statements the jury found to be defamatory had been published to a third party; (2) whether there was legally sufficient that another defamatory statement caused the plaintiff to suffer economic damages; (3) whether the statements were protected by qualified privilege; and (4) whether the plaintiff's expert testimony regarding causation and lost profits was conclusory.

The issue in this case is whether companies that collect and test employment-related drug-screen samples owe a duty of care to the third-party employees being screened.

The principal issue is whether a medicated settlement agreement partitioning 2010 income to each spouse for filing individual tax returns and dividing future earnings as of June 2010 included a $4.5 million performance bonus Miguel Loya got in March 2011 as undisclosed property under the agreement. Subsidiary issues are (1) whether that discretionary bonus is community property after the divorce and (2) whether Leticia Loya's claim is precluded by the medicated agreement.

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.

The issues in these cases surround class certification: whether the trial courts performed the required "rigorous analysis" to determine whether the certification prerequisites were met and whether the certification orders listed all the elements of the 175 defenses, as the Rules of Civil Procedure require. In addition, one petition asks whether a court of appeals' opinion declining an application for a permissive interlocutory appeal must state a basic analysis for doing so and whether the requirements for certifying an interlocutory appeal were met.

The issues in these cases surround class certification: whether the trial courts performed the required "rigorous analysis" to determine whether the certification prerequisites were met and whether the certification orders listed all the elements of the 175 defenses, as the Rules of Civil Procedure require. In addition, one petition asks whether a court of appeals' opinion declining an application for a permissive interlocutory appeal must state a basic analysis for doing so and whether the requirements for certifying an interlocutory appeal were met.

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.

The issue in this retaliation suit is whether the Whistleblower Act's immunity waiver applies to a charter school as a "local government entity."

In this appeal from summary judgment on indemnity under an exchange agreement, the issues are (1) whether a pre-bankruptcy exchange agreement was executory under the Bankruptcy Code and (2) whether the appeals court misconstrued the asset-purchase agreement and bankruptcy plan under Texas contract law.

The issues are (1) whether a jury finding that a former plant owner's licensed engineers supervised equipment design blamed for a worker's injury satisfies a 10-year repose statute barring a lawsuit against licensed engineers who design, plan or supervise real-property improvements; (2) whether evidence conclusively established the former plant owner constructed the equipment to invoke a 10-year repose statute that would protect it from suit; and (3) whether recovery should be barred because the plaintiff failed to get jury findings supporting premise-liability or products-liability claims. Jenkins, injured when acid-adjustment machinery allegedly malfunctioned, sued Occidental for negligence in 2007, claiming Occidental negligently designed the acid-adjustment system 15 years earlier An Occidental engineer supervised the design team, which included licensed engineers and others who were not. An Occidental employee who oversaw the machinery's fabrication was not a licensed engineer. Based on the repose statutes, the trial court granted Occidental judgment despite the jury's verdict for Jenkins. The court of appeals reversed.

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

This case concerns the interpretation of an excess insurance policy that follows an underlying policy, except where the terms, conditions, definitions, and exclusions of the policies conflict.

This is a suit challenging a City of Houston drainage fee ordinance.

The issue in this case is whether a sales executive who negotiated a long-term contract but was terminated before any sales were made is entitled to a million-dollar commission. Baylor Miraca Genetics Laboratories hired Brandon Perthuis to help develop genetic tests and serve as the company’s head of sales. Perthuis's employment agreement stated "Your commission will be 3.5% of your net sales" but did not define "net sales" or explain the parameters of the commission structure.

The primary issues in this case are whether (1) a release in the parties' settlement agreement bars claims that arose during the negotiation of the agreement; (2) a disclaimer of reliance in the same agreement is enforceable and bars omission-based fraud claims; and (3) the settlement agreement revoked a previous agreement's arbitration provision, despite the previous agreement's delegation of questions of arbitrability to an arbitration tribunal.

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.

The issues are (1) whether minority shareholders' claims fall within the scope of the forum-selection clause in the shareholders' agreement; (2) whether a forum-selection clause in an amended shareholders' agreement can be enforced against a minority shareholder who did not sign the amended version; and (3) whether defendant officers who did not sign the shareholders' agreement can enforce the forum-selection clause.

The issues in this dispute over reimbursed bonuses from rescinded federal offshore-mineral leases are (1) whether disposing assets that a contract expressly excludes should be decided by contract law or by equity (the appeals court decided the case by equity) and (2) whether Torch Energy, which conveyed its lease interests by two contracts to Plains Exploration, excluded claims to the repaid bonuses under either contract. After the federal claims court ordered the federal government to reimburse the mineral-right holders what they had paid (Plains' share was $83 million) Torch sued Plains for half of that. The trial court rejected Torch's contract-breach claims and its equitable claim for money "had and received." The appeals court affirmed the trial court's ruling that Plains had not breached its contract with Torch, but found the contract ambiguous on the bonus reimbursement and remanded Torch's claim that Plains owed Torch for money had and received.

This case raises questions about the extraterritorial reach of Texas's civil barratry statute and whether barratry claims are subject to a two or four-year statute of limitations.

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.

The issue is whether child-support payments should be credited when made directly to a day care facility and private school instead of, as the divorce decree specifies, to the court registry. Victoria Ochsner sued for child support owed because for years he paid tuition and daycare expenses directly to providers. The original decree provided that he pay $563 a month for their daughter to attend a certain day care center, in addition to $250 a month to Victoria Ochsner as child support. Once their child quit going to the specific day-care center, the decree stipulated that he was to pay $800 a month child support through the Harris County Child Support Center and, if he did not pay into the court registry, he might not get credit for payments. When their daughter quit going to the day care center, Preston Ochsner continued to pay for day care to another place and private-school tuition - by agreement with his ex-wife, he argues - rather than pay the $800 a month in child support. The Ochsners stipulated that he paid $22,000 more than he would have if he had paid $800 a month into the court registry. The trial court ruled that he was not in arrears on child support, but the court of appeals in a split decision held the parents' oral agreement was unenforceable and was not an approved modification of the decree. The appeals court determined he owed $55,000 in unpaid child support.

In this appraisal contest the issue is whether the appeals court erred by ordering PRSI, as an entity claiming property-tax exemption under a foreign-trade zone designated for a predecessor, to pay Harris County taxes on PRSI's inventory.

The principal issues in this appeal from client sanctions for alleged litigation abuse are (1) whether Dr. Nath waived his challenge to the sanctions in the Supreme Court; (2) whether the sanctions - more than $1.3 million for attorney fees for two defendants - were unbridled; and (3) whether the sanctions violate constitutional protections established in TransAmerican Natural Gas Corp. v. Powell. The trial court imposed sanctions against Dr. Nath after finding his suit, amended as many as six times, lacked legal or factual bases. The appeals court affirmed.

The principal issues in this fraud and contract-interference case are (1) whether Texas courts may exercise specific personal jurisdiction over Parex, a Canadian company; if so, (2) whether Parex's separate Bermuda subsidiary ratified Parex Canada's pre-incorporation jurisdictional conduct as its promoter; and (3) whether legally sufficient evidence supports specific personal jurisdiction over Ramshorn International, a Colombia company, based in part on a subsidiary's employee's conduct as agent.

In this case, alleging two movie-theater chains conspired against a third in violation of the Texas Free Enterprise and Antitrust Act, the issues are (1) whether a factual dispute exists that AMC and Regal acted in a conspiracy and (2) whether a genuine factual dispute exists that AMC and Regal caused damages to iPic, a boutique movie chain.

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

(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

The issue, based on denial of a dismissal motion under the Texas Tort Claims Act, is whether an off-duty police officer using deadly force outside his jurisdiction during an arrest is acting outside the scope of his employment.

The principal issues in this shareholder-derivative suit are (1) whether the business-judgment rule protects against challenges to board decisions involving a closely held corporation; (2) whether the shareholder bringing the challenge must plead and prove fraud by directors or self-dealing to have standing to file the derivative suit; and (3) whether a derivative action must be brought by a shareholder in the subsidiary and wholly owned operating company. In this case Webre, who owns almost a quarter of Texas United, a holding company, sued on Texas United's behalf and for United Salt, the wholly owned operating subsidiary, over an acquisition he contends was pushed on the company's board by United Salt's officers. Webre's claims include fiduciary-duty breaches by the officers and fraud. The officers and both companies challenge Webre's standing. The trial court dismissed the derivative claims for lack of standing and the appeals court reversed.

(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

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.

The principal issues are (1) whether the bankruptcy trustee has standing to bring claims in this case and (2) whether expunction of a lis pendens notice qualifies two entities that took title to the subject properties as bona fide purchasers.

The principal issues are (1) whether the bankruptcy trustee has standing to bring claims in this case and (2) whether expunction of a lis pendens notice qualifies two entities that took title to the subject properties as bona fide purchasers.

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.

The principal issues in this challenge to an award for deceptive-trade practices, arising from a teenaged babysitter's sexual assault of two boys in his care, are (1) whether legally sufficient evidence supports the producing-cause element for liability based on flyers soliciting babysitting work for the teen and (2) whether the deceptive trade-practices act's general exclusion of bodily injury and mental-anguish claims bars all damages for personal injury. The boys' parents sued Bryant, a preschool teacher at a church school the boys attended, and the church and school, alleging Bryant's flyer promoting her son for child-care services deceived them because it did not mention his attention-deficit disorder, depression and low self-esteem or that Bryant discovered him several times viewing adult heterosexual pornography. The boys' parents had used Bryant's daughter for babysitting in the past without incident. A jury found the flyer deceptive, but the court of appeals reversed, holding that legally sufficient evidence did not support Bryant's acts as the cause that produced the boys' injuries.

The issues in these consolidated reverse-condemnation claims, based on flooding resulting from Hurricane Harvey, are (1) whether Texas Government Code chapter 2007 applies to both physical and regulatory takings and (2) whether chapter 2007's emergency-related exclusions apply to the river authority's water release from Lake Conroe to relieve the swelling lake from the hurricane's heavy rainfall.

This case examines whether a trial court can sever unresolved claims following a grant of partial summary judgment, thereby creating an appealable final judgment.

In this defamation action by a former contractor Shell fired in the wake of a federal bribery investigation, the issues are (1) whether Shell's internal-investigation report to the Justice Department alleging the contractor's possible complicity is absolutely privileged and (2) whether the Justice Department's investigation of Shell under the Foreign Corrupt Practices Act constitutes a quasi-judicial proceeding. The underlying case arose from a Shell subcontractor's federal conviction for bribing Nigerian customs workers. Under threat of federal prosecution itself, Shell launched its own investigation of the company's dealings with the convicted subcontractor and reported the results to the Justice Department. Shell alleged that either Writt, who supervised payments to the convicted subcontractor, or his contract engineer approved, allowed or failed to stop the bribery scheme. After Shell fired Writt, he sued Shell for defamation and wrongful termination, contending he objected to Shell's suspect payments to certain contractors. The trial court granted summary judgment for Shell, ruling the company's report to the Justice Department was absolutely privileged. The court of appeals reversed, holding the report was not made in a judicial or quasi-judicial proceeding and was subject only to a qualified privilege.

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

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

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.

The issue is whether the Harris County Flood Control District's plan to demolish a bridge to widen a bayou triggered the district's statutory obligation to pay for relocating the telephone company's equipment across the bridge (by making the relocation necessary). The district contends the bridge demolition was not necessary, but Houston ordered it as part of a city public-works project that, by ordinance, obligated AT&T Texas (Southwestern Bell's business moniker) to pay its own relocation costs. AT&T argues that the district's flood-control plan had been in the works since 1998, calling for bridge demolition, and that Houston belatedly claimed the project as its own. The trial court granted the district's jurisdictional plea. Interpreting the Water Code's provision that would shift relocation costs to the flood-control district, the court of appeals affirmed, holding Houston, not the district, made AT&T's equipment relocation necessary.

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

This case concerns the proper burden of proof to support a permanent protective order that prohibits contact between a parent and minor child.

The issues are (1) whether an outdoor-advertising company should be compensated for leased billboards lost when the state condemned the land on which they stood and (2) whether the trial court erred by permitting the company's expert to value the billboards based on advertising income. Clear Channel challenged the state's determination that its two billboards were personal property apart from the condemned land and subject only to the state paying for their relocation. Trial courts ruled that the billboards were not personal property and should be valued as part of the condemned real property. After hearing Clear Channel's expert testify that the billboards should be valued based on lost advertising income, a jury awarded the company $268,000. The court of appeals affirmed, holding in part that the billboards were real-estate improvements. The appeals court also held that Clear Channel's expert testimony on valuation was admissible.

The issue is whether the Harris County clerk's plans to send mail-in ballot applications to all county voters should be halted as illegal, beyond the clerk's specified powers under the Texas Election Code, that will cause irreparable harm if not stopped. In this case the trial court denied the state's request for a temporary injunction because it determined the Harris County clerk had authority to send unsolicited mail-in ballot applications because no statute forbids him. The appeals court denied the state's interlocutory appeal, holding the state could not demonstrate irreparable harm.

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.

The question presented in this case is whether attorney immunity applies to an alleged violation of both the Texas Wiretap Act, Texas Penal Code § 16.02(b), and the Federal Wiretap Act, 18 U.S.C. § 2511(1).

The issues in this case involving an state-jail inmate's injury are (1) whether sovereign-immunity is waived under the tort-claims act because jailers used an outdoor-use-only gas gun inside the jail to quell resistant prisoners and loaded it with mislabeled shells, allegedly negligent use or condition of tangible personal property, and, if so, (2) whether waiver is defeated because the shooting was an intentional tort or in response to an emergency or riot.

The principal issue in this Whistleblower Act case is whether a government employee's internal complaint about alleged fraud to his supervisors constitutes a good-faith report to an "appropriate law enforcement authority" when the agency has a division to prosecute such fraud but the supervisors do not have authority to do so. In this case Okoli told his supervisor at the Department of Human Services that employees illegally manipulated filing dates on assistance applications, allegedly at her instruction to show better efficiency in processing the applications. After she disciplined him, he reported the allegation to higher supervisors but not the department's inspector general, the unit charged with prosecuting law violations within the department. Three months after his initial report, the supervisor fired Okoli. Okoli sued the department, alleging retaliation under the whistleblower statute. The trial court denied the department's jurisdictional plea to dismiss the suit and the appeals court affirmed.

The issue is whether a court lacks jurisdiction to review an administrative death-benefits denial if a workers-compensation claimant files in the wrong court - in this case, in probate court where a wrongful-death suit was pending - within the appeal deadline to district court.

In this challenge by a law student contesting his dismissal after a controversy implicating grading in a first-year course, the issues are (1) whether the dismissal is properly characterized as academic and raises due-course-of-law protections; if so, (2) whether the appeals court properly concluded the law student alleged a viable procedural due-course-of-law claim; and (3) whether the appeals court properly concluded the law student alleged a viable substantive due-course-of-law claim.

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

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

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.

This case concerns the application of the futility doctrine to inverse-condemnation and takings claims.

In this challenge to evidence supporting a wrongful-death and medical-malpractice verdict, the issues are whether sufficient evidence showed a standard-of-care breach and, if so, whether proximate cause of the death resulted from that breach.

The issues are (1) whether under Timberwalk and elaborating cases a court must conduct an independent analysis of a crime risk's unreasonableness and (2) whether the crime was foreseeable in this case under Timberwalk and its progeny.

The issues are (1) whether physician reports on asbestos disease meet the requirements of the statutory safety-value provision for an impairment diagnosis for someone who did not or could not be diagnosed by a lung-function test and, if not, (2) whether dismissal violates the state constitutional prohibition on retroactive laws. In this case the asbestos pretrial court rejected Union Carbide's dismissal motion based on the plaintiff's failure to provide pulmonary-impairment evidence caused by asbestos. A 2005 statute requires lung-function testing before an asbestos-injury claim may proceed to trial, but the safety-valve provision provides an exception in unique and extraordinary circumstances. Based in part on a pulmonologist's evaluation, the court found that Emmite, a 35-year Union Carbide employee allegedly exposed to asbestos at work, could not physically or mentally take the lung-function test before he died but other exams confirmed asbestosis and significant impairment. A majority of the court of appeals, hearing the appeal en banc, affirmed the pretrial court's order denying dismissal. But the court split without a majority on whether the pulmonary-testing requirement was unconstitutional.

In this dispute over a medical resident's termination, in which he alleged contract, defamation and tortious-interference claims, a principal issue is whether his amended petition was proper to keep individual UT employees in the suit after the medical school moved to dismiss them under the Tort Claims Act's election-of-remedies provision.

The issues are (1) whether M.D. Anderson used tangible personal property during surgery, defeating Anderson's immunity defense, and, if so, (2) whether that use proximately caused the surgery patient's death.

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

The issues are (1) whether the implied revocation doctrine applies outside the real-estate context; (2) whether a debtor's notice of a creditor's future effective contract to assign debt impliedly revokes an offer to settle the debt with the creditor; and, if the offer was not revoked, (3) whether emails between Tauch and the bank that was originally the creditor form a valid contract.

Among principal issues in this oil-platform-injury case, involving for liability purposes the contention that the injured worker was a "borrowed" employee, are (1) whether such an employee's status is always a legal determination for the court; (2) whether disputed facts preclude the trial court from rendering judgment despite the evidence; and, if the borrowed-servant question is not one of law and if fact questions prohibited judgment notwithstanding the verdict, (3) whether enough evidence supports the jury's finding that the worker was not a borrowed employee.

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

In this personal-injury case involving a temporary garbage-truck worker, the issue is whether a contract specifying temporary workers as independent contractors defeats summary judgment when evidence shows Waste Management's actual control over the worker when he was injured.

The principal issues are (1) whether Texas' constitutional home equity-lending provisions preclude as personal liability attorney fees awarded against the homeowners in a declaratory action on a home-loan default and (2) whether the appeals court erred by reframing declaratory-judgment pleadings to be pleadings instead for injunctive relief (by the homeowners) and contract breach (by the bank). In this case the Murphys sued Wells Fargo, seeking a declaration that the bank was not entitled to foreclose on the home-equity debt. Wells Fargo counterclaimed that the Murphys were obligated to make payments on the loan, failed to do so and were in default. The trial court ruled for the bank and awarded attorney fees. The court of appeals affirmed all but the fees award, holding that neither the Murphys nor the bank sought declaratory relief and, because of that, Wells Fargo could recover attorney fees against the property but not against the Murphys personally.

This car-crash case involves arguments about the sufficiency of the evidence, charge error, and damages.

In this case alleging breach of a construction contract, the principal issues are (1) whether Texas law recognizes common-law exceptions to contractual no-damages-for-delay clauses for actions constituting arbitrary and capricious conduct, active interference, bad faith or fraud and (2) whether Zachry's partial lien release unambiguously released its claims that the Port of Houston Authority improperly withheld payments as liquidated damages. Zachry sued over its contract to build the port authority a wharf on the Baytown Ship Channel, alleging the port authority penalized Zachry for missing deadlines that Zachry contended resulted from changes the port authority ordered in how Zachry was building the wharf. In its judgment, the trial court awarded Zachry almost $20 million in damages. The appeals court reversed, ordering Zachry to take nothing on its claims.