Case Summaries

ORAL ARGUMENT SUMMARIES FOR NOVEMBER 2009

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.

ORAL ARGUMENT SUMMARIES FOR NOVEMBER 18-19, 2009

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.

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.
Briefs
Court of appeals' opinion
Webcast

Transcript

08-0667
Eberhard Samlowski, M.D. v. Carol Wooten
from Johnson County and the 10th District Court of Appeals, Waco
For petitioner: Kay Ellington, Dallas
For respondent: Barney L. McCoy, Houston

ORAL ARGUMENT SUMMARIES FOR OCTOBER 6-8, 2009

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.

08-0246
Gilbert Texas Construction, L.P. v. Underwriters at Lloyd's London
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Craig T. Enoch, Austin
For respondent: Glenn R. Legge, Houston

The principal issues are (1) whether an excess general commercial liability policy's exclusion for liability assumed by contract applies to an insured's indemnification claim based on a third party-beneficiary's breach-of-contract allegation and, if so, (2) whether the policy exception for damages "the insured would have in the absence of the contract" provides coverage and requires indemnification. In this case Gilbert settled with a property owner who sued over flood damage allegedly caused by Gilbert's construction debris, which allegedly channeled heavy rain runoff to the property owner's buildings. In Gilbert's contract, to build a light-rail line, the company agreed to protect property belonging to third parties and to make repairs for damage it caused. The trial court found coverage under Gilbert's excess-insurance policy, but the court of appeals reversed.
Briefs
Court of appeals' opinion
Webcast

Transcript

08-0421
State of Texas v. Public Utility Commission of Texas
from Travis County and the Third District Court of Appeals, Austin
For petitioners: Jonathan Day, Austin, and Alton J. Hall Jr., Houston
For petitioners CenterPoint and Texas Genco: Thomas R. Phillips, Gregory S. Coleman, Austin
For respondent: Elizabeth Sterling, Austin

ORAL ARGUMENT SUMMARIES FOR SEPTEMBER 8-10, 2009

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.

07-1050
Zachry Construction Corp., et al. v. Texas A&M University
from Brazos County and the 10th District Court of Appeals, Waco
For petitioners: Ben Taylor, Dallas
For respondent: James C. Ho, Austin

In this case arising from the 1999 Texas A&M bonfire collapse principal issues involve third-party claims against the university: (1) whether, if sovereign immunity has been waived on liability, waiver also must be necessary for a derivative contribution claim against the university; (2) whether Texas A&M's immunity is waived by use of university property for the bonfire construction under the Tort Claims Act's tangible personal or real property provision; (3) whether Texas A&M had actual notice of a premises defect; and (4) whether, if immune, the university's proportionate responsibility can be determined if it is not joined in the lawsuit. The trial court denied Texas A&M's jurisdictional plea, but the court of appeals reversed and dismissed the claims against the university. Since the Court granted the petition, A&M has argued it should be dismissed after the university settled with all injured plaintiffs last fall.
Briefs
Court of appeals' opinion
Special note (Gray)
On rehearing
Supplement to special note issued August 16, 2007 (Gray)
Webcast

Transcript

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

ORAL ARGUMENT SUMMARIES FOR MARCH 10-12, 2009

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.

08-0175
Whirlpool Corp. v. Margarita Camacho and Santos Camacho.
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Lynne Liberato, Houston
For respondent: Kevin Dubose, Houston

Among principal issues in this product-liability case are (1) whether the court of appeals erred by failing to analyze expert testimony properly under a legal-sufficiency challenge, (2) whether expert testimony was improper because it was speculative on the safer alternative design and on the causation element; and (3) whether the trial court erred by failing to give a spoliation instruction because Whirlpool did not have notice of possible suit for three months despite plaintiffs’ experts evaluating a home fire scene within two days of a fatal fire. In this case the Camachos sued after fire destroyed their trailer home and killed their son. They claim defective design of a clothes dryer allowed accumulated lint to be drawn to the dryer heater, where it ignited, then started clothes in the dryer afire and spread to the house. Whirlpool’s challenge to the reliability of this theory, based on testing outside a dryer, was in part that the theory failed to explain that two T-shirts in the dryer did not burn. Whirlpool also complains that the Camachos had notice they would sue within days of the fire, but did not notify the company for several months, during which the fire scene was dismantled.
Briefs
Court of appeals' opinion
Webcast

Transcript

08-0262
Roy Kenji Yamada, M.D. v. Laura Friend, et al.
from Tarrant County and the Second District Court of Appeals, Fort Worth
For petitioner: Kevin Carey, Fort Worth
For respondent: Jeff Kobs, Fort Worth 

ORAL ARGUMENT SUMMARIES FOR FEBRUARY 2, 2009

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.

08-0121
City of Waco v. Debra Kirwan
from McLennan County and the 10th District Court of Appeals, Waco
For petitioner: Charles D. Olson, Waco
For respondent: Michael Singley, Austin
For amicus curiae State of Texas: David S. Morales, Austin

The principal issues in this case involving a death in a fall at a city park are (1) whether the Recreational Use Statute allows a premises-defect claim based on a natural condition and (2) whether the plaintiff presented a genuine issue of material fact regarding the city’s gross negligence. Kirwan’s son died when he fell 60 feet as a rock precipice gave way under him. To get to the cliff, Kirwan’s son had to pass a stone wall across a path and a warning sign. Under the Recreational Use Statute, the landowner – in this case, Waco – does not owe a duty of care greater than that owed a trespasser for inherent natural dangers. Kirwan argues the statute’s exception for gross negligence applies to a premises defect for a naturally occurring condition and points to a graduate student’s report offered to the city that warned of falling rock dangers to walkers on paths below limestone cliffs at the park as evidence of the city’s knowledge of the danger and its gross negligence in failing to fix the dangers. Waco, however, argues that gross negligence may only be established by showing a landowner created a condition that a recreational user would not reasonably expect on the property. The trial court granted to city’s jurisdictional plea, but the court of appeals reversed, holding that the statute did not prohibit a premise defect based on natural conditions. The appeals court also held that Kirwan raised a material fact issue to support her gross-negligence claim.
Briefs
Court of appeals' opinion
Webcast

Transcript

08-0272
Dealers Electric Supply Co. v. Scoggins Construction Co. Inc. and Bill R. Scoggins
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Ben L. Aderholt, Houston
For respondents: William F. Kimball, Harlingen
For amici curiae American Subcontractors Association Inc. and Houston Hispanic Chamber of Commerce: J. Brett Busby, Houston

ORAL ARGUMENT SUMMARIES FOR JANUARY 13-14, 2008

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.

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 respondent Susan Conte: Karen L. Watkins, Austin
For petitioner: Michael J. Cenatiempo and Thomas C. Wright, Houston

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.
Briefs
Court of appeals' opinion
Webcast

Transcript

08-0061
State of Texas v. Central Expressway Sign Associates, et al.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Susan Desmarais Bonnen, Austin
For respondents: Joe H. Staley Jr., Dallas, and Sydney Nell Floyd, Houston

ORAL ARGUMENT SUMMARIES FOR DECEMBER 9-11, 2008

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.

06-0975
Grant Thornton LLP v. Prospect High Income Fund, et al.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Samara L. Kline, Dallas
For respondents: Paul Lackey, Dallas

In this auditor-liability case, the issues are (1) whether investment-fund bondholders presented enough evidence of fraud and misrepresentation to defeat traditional and no-evidence summary-judgment motions under the foreseeability standard in Ernst & Young L.L.P. v. Pacific Mutual Life Insurance Co. and (2) whether their evidence was enough to defeat summary-judgment motions on conspiracy to commit fraud and aiding and abetting fraud. The investment funds sued Grant Thornton, the auditor for the bond-issuing vacation-timeshare company, over financial statements for the bonds that failed to disclose material problems. Grant Thornton argues in part that the investments funds did not show in purchasing the bonds that they relied on the financial statements prepared for the timeshare company’s purposes or that the audit information caused their losses. The trial court granted Grant Thornton summary judgment on all claims, but the appeals court reversed on fraud and misrepresentation, among others.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0818
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
v. National Development and Research Corp. and Robert E. Tang
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner Akin, Gump: Jeffrey S. Levinger, Dallas
For cross-petitioners/respondents National Development: Michael L. Jones, Dallas

ORAL ARGUMENT SUMMARIES FOR NOVEMBER 12-13, 2008

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.

06-1034
State of Texas v. George Lueck
from Travis County and the Third District Court of Appeals, Austin
For petitioners: Ryan Clinton, Dallas
For respondent: Gregory C. Douglass, Austin

The issues in this Whistleblower Act case are (1) whether Lueck, a Texas Transportation Department employee fired for questioning an outside vendor’s contract termination, properly stated a claim under the act to confer jurisdiction on the trial court and (2) whether, if so, he properly reported violation of a state or federal law to an appropriate law-enforcement authority.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0322
In re James Allen Hall
from Bexar County and the Fourth District Court of Appeals, San Antonio
For relator: Tim Patton, San Antonio
For real party in interest: Kevin Patrick Yeary, San Antonio

ORAL ARGUMENT SUMMARIES FOR OCTOBER 14-16, 2008

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.

07-0123
Dennis L. Miga v. Ronald L. Jensen
from Tarrant County and the Second District Court of Appeals, Fort Worth
For petitioner: Jeffrey Levinger, Dallas
For respondent: Warren W. Harris, Houston

The Supreme Court will hear arguments on whether restitution is appropriate when judgment leading to a Rule 11 payment agreement is later reversed. The issue is whether restitution is appropriate when a party tenders payment under a Rule 11 agreement and the judgment leading to the agreement is later reversed on appeal. In this case Miga sued Jensen for breach of a stock-option agreement. He won a jury verdict, which the court of appeals affirmed. At that time Miga and Jensen agreed that Jensen would tender $23.4 million to the trial court to stem post-judgment interest. Under the agreement, Miga could withdraw from the account unconditionally. In an appeal of that judgment to this Court, the Court reversed for calculation of lost stock profits in the damages. Jensen then sued for restitution of the money tendered under the Rule 11 agreement. The trial court granted summary judgment for Jensen and a split court of appeals affirmed.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0760
Greg Tanner and Maribel Tanner v. Nationwide Mutual Fire Insurance Co.
from Caldwell County and the 11th District Court of Appeals, Eastland
For petitioners: Don R. Cotton, Austin
For respondents: Chris Heinemeyer, San Antonio

ORAL ARGUMENT SUMMARIES FOR SEPTEMBER 9-11, 2008

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.

05-0801
S. Murthy Badiga, M.D. v. Maricruz Lopez
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Diana L. Faust, Dallas
For respondent: E. A. Villareal Jr., Edinburg

The Supreme Court will hear arguments on whether in a medical-malpractice case a trial court’s refusal to dismiss for failure to file a timely expert report can be subject to an interlocutory appeal. In this case the expert report was served three and a half months after the 120-day deadline, after the trial court granted two motions to extend time. A principal issue in this medical-malpractice case is whether an interlocutory appeal can be taken from a trial court’s refusal to dismiss the lawsuit because an expert report was not filed on time. In this case the expert report was served three and a half months after the 120-day deadline, after the trial court granted two extensions. To support the second motion, Lopez contended the report was late because of a clerical error, not indifference. The case poses a statutory conflict between a provision that prohibits interlocutory appeals from orders denying dismissal when an extension is granted to cure a deficient expert report and a provision allowing such appeals when a dismissal motion is denied when an expert report is not filed on time. In this case the court of appeals dismissed the interlocutory appeal for want of jurisdiction.
Briefs
Court of appeals' opinion
Webcast

Transcript

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.
Briefs
Court of appeals' opinion
Webcast

Transcript

ORAL ARGUMENT SUMMARIES FOR APRIL 1-2 & 22, 2008

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.

06-0598
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance Co.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Werner A. Powers and Charles C. Keeble Jr., Dallas
For respondent: Joseph J. Borders, Chicago

The Supreme Court will hear arguments of whether prejudice required to deny coverage under ‘claims-made’ policy with prompt-notice provision. A principal issue is whether under a “claims-made” insurance policy covering company directors and officers the insurer must show prejudice to deny coverage because of the insured’s failure to notify the company promptly that a suit had been filed. The policy provision required notice “as soon as practicable” during the policy period, but not later than 90 days after the policy period or discovery period expires. Notice was given 11 months after the suit but before the 90-day period expired.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-1059
Financial Industries Corp. v. XL Specialty Insurance Co.
certified question from the Fifth Circuit U.S. Court of Appeals
For appellant: Bart Wulff, Dallas
For appellee: Gabriela Richeimer, Washington, D.C., and Elizabeth Bloch, Austin

 The Supreme Court will hear arguments of whether, in certified question, prejudice was required in ‘claims-made’ policy when policy stipulated notice as condition precedent to policy payment. Certified question: Must an insurer show prejudice to deny payment on a claims-made policy when the denial is based upon the insurer’s breach of the policy’s prompt-notice provision, but the notice is nevertheless given within the policy’s coverage period? XL Specialty’s policy required Financial Industries to notify it of any claim “as soon as practicable” and labeled the provision as a condition precedent to payment under the policy. Financial Industries gave notice of a lawsuit against it seven months after the suit was filed, but within the coverage period.
Briefs
Certified Question
Webcast

Transcript

ORAL ARGUMENT SUMMARIES FOR FEBRUARY 5-6, 2008

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.

06-0815
Jesse C. Ingram, Ph.D., et al. v. Louis Deere, D.O., et al.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioners: Craig Enoch, Austin
For respondents: Georganna L. Simpson, Dallas

The Supreme Court will hear arguments on whether a partner’s liability based on an oral contract ends when he refuses to sign a written partnership agreement. The principal issues in this breach-of-contract case are (1) whether legally sufficient evidence exists to support the jury’s finding of an oral partnership agreement; (2) and, if such an agreement existed, whether liability for one partner ended when he refused to sign an employment agreement and ceased working for the clinic; and (3) whether that partner owed a fiduciary duty to the partnership as a matter of law. In this case Ingram, a psychologist, and Deere, a medical doctor, agreed to open a pain-management clinic that Ingram would operate but that he needed a medical doctor to call a clinic. They both agree Deere would get one-third of the revenue. But Deere, the medical doctor, contends Ingram agreed to take another third for himself and use the remainder for clinic expenses. Ingram contends the agreement only specified Deere’s share. By mutual agreement, the partners later reduced Deere’s share to one-fifth. But when Ingram tried to get Deere to sign a written employment agreement to that effect, Deere refused, claiming it violated the original contract. Ingram declared the arrangement over and Deere quit working at the clinic. Pressing contract-breach and other claims, Deere sued. A jury found for Deere, but the trial court entered a take-nothing judgment. The court of appeals reinstated $2.5 million in damages on Deere’s breach of contract claim.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0875
Ford Motor Co. v. Ezequiel Castillo, et al.
from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Craig A. Morgan, Austin
For respondents: Roger W. Hughes, Harlingen

The Supreme Court will hear arguments on whether summary judgment for contract breach was proper to enforce settlement.  In this case involving allegations of a rogue juror, the principal issues are (1) whether the trial court erred by granting summary judgment on a settlement agreement without independent breach-of-contract pleadings and (2) whether the trial court erred by refusing additional discovery on jury misconduct allegations. Castillo and Ford promptly settled Castillo’s personal-injury suit, alleging an accident caused by Ford’s vehicle design defects, after the presiding juror sent a note to the judge asking what the limit on damages was. After the trial court dismissed the jury, Ford contended jurors told its lawyers that the presiding juror sent the note on her own and that the jury as a whole was leaning in Ford’s favor. The trial court denied Ford’s later motion to set aside the settlement agreement, based on jury misconduct or mutual mistake, or both, finding neither mutual mistake nor jury misconduct and ordered payment according to the agreement. When Ford did not pay, Castillo moved for summary judgment for breach of the settlement agreement. The trial court granted the motion. In a split decision, the court of appeals affirmed.
Briefs
Court of appeals' opinion
Dissent (Castillo)
Webcast

Transcript

06-0890
Nabors Drilling, U.S.A. Inc. v. Francisca Escoto, et al.
from Willacy County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Reagan W. Simpson, Houston
For respondents: Alex M. Miller, San Antonio

The Supreme Court will hear arguments on the issue of whether employer has duty to protect against danger of its fatigued employee en route home. The principal issues are (1) whether an employer has a duty to protect third parties from a fatigued employee en route home after a 12-hour shift and (2) whether the employee has a duty to train its employees about the dangers of fatigue. In this case Escoto sued Nabors after four members of her family died in a car accident allegedly caused by Nabor’s employee on his way home after working five 12-hour graveyard shifts. Escoto alleged that Nabors was liable it had a duty to protect other people when its employee drove home after a exhausting shift and because the company failed to train its employees how to handle fatigue. The trial court entered a judgment in Nabor’s favor after a jury verdict for Escoto, reasoning that Nabor did not owe a duty to Escoto. The court of appeals reversed.
Briefs
Court of appeals' opinion
Dissent (Castillo)
Webcast

Transcript

06-1030
Zurich American Insurance Co., et al. v. Nokia Inc.
consolidated with
06-1040
Federal Insurance Co. v. Samsung Electronics America, et al.
and
07-0140
Trinity Universal Insurance Co. v. Cellular One Group
all from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioners: Joseph R. Knight, Austin; Russell McMains, Corpus Christi; and Kirk C. Chamberlin, Los Angeles
For respondents: Eric Mayer, Houston, and Charles L. Perry, Dallas

ORAL ARGUMENT SUMMARIES FOR JANUARY 15-17, 2008

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.

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.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-1071
State Farm Lloyds v. Becky Ann Johnson
from Collin County and the Fifth District Court of Appeals, Dallas
For petitioner: Michael W. Huddleston, Dallas
For respondent: Russell J. Bowman, Dallas

The Supreme Court will hear arguments on the principal issue is whether an appraisal clause in a homeowner’s policy gives appraisers authority to consider causation, coverage and liability in determining “amount of loss.”  The principal issue is whether an appraisal clause in a homeowner’s policy covers a dispute over just the insurer’s amount-of-damage calculation instead of one determining causation, coverage and liability questions in setting the loss amount. In this case Johnson sued State Farm after it refused her request for an appraisal under a clause providing an appraisal mechanism if the insurer and insured “fail to agree on the amount of loss....” State Farm had determined that Johnson’s policy covered only $499 for hail-damaged shingles along the top of the roof, but her expert recommended a new roof, finding more extensive hail damage. The trial court granted State Farm’s summary-judgment motion, but the court of appeals held in reversing the case that the dispute about the extent of hail damage was a dispute about the loss amount.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0010
Galveston Central Appraisal District v. TRQ Captain’s Landing, L.P., and American Housing Foundation
from Galveston County and the First District Court of Appeals, Houston
For petitioner: Michael B. Hughes, Galveston
For respondents: John Ben Blanchard, Amarillo

The Supreme Court will hear arguments on the issue of whether a community housing agency may claim an ad valorem tax exemption for property to which it holds equitable title but legal title is held by its development subsidiaries. The issue is whether a community housing agency may claim an ad valorem tax exemption for property to which it holds equitable title but legal title is held by a wholly owned development subsidiary. Together with TRQ Captain’s Landing, its subsidiary, American Housing Foundation sued the appraisal district over the district’s denial of a property-tax exemption for apartments to which TRQ held legal title. Under state tax law, such an exemption may be granted only to a qualified non-profit community housing-development organization that owns property for sale or lease to low- or moderate-income people. Galveston County Appraisal District argues that it holds equitable title in the apartments and that its intent in forming the subsidiary, to develop low-income housing, complies with the Legislature’s intent for tax exemptions. The trial court granted summary judgment for the appraisal district. The court of appeals reversed.
Briefs
Court of appeals' opinion
Dissent  (Bland)
Webcast

Transcript

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.
Briefs
Court of appeals' opinion
Dissent (Keyes)
Webcast

Transcript

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..
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0135
East Texas Salt Water Disposal Co. Inc. v. Richard Leon Werline
from Gregg County and the Sixth District Court of Appeals, Texarkana
For petitioner: Greg Smith, Tyler
For respondent: Gregory J. Wright, Longview

The Supreme Court will hear arguments on the issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing give the court of appeals interlocutory jurisdiction. The issue is whether a trial court’s order vacating an arbitrator’s award and directing a rehearing gives the court of appeals interlocutory jurisdiction. In this case the company sued to vacate an arbitrator’s award of two years’ salary, attorney’s fees and arbitration costs to an employee in a dispute over his employment agreement. The trial court vacated the arbitration award, ruling that it resulted from evident partiality, willful misconduct and gross mistake. On appeal, the court reversed and rendered judgment confirming the award, holding that the Texas Arbitration Act allows appellate review of a trial court order denying confirmation of an arbitration award.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0372
Columbia Rio Grande Healthcare L.P. v. Alice H. Hawley and James A. Hawley
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Charles Watson, Austin
For respondents: Darrin Mitchell Walker, Kingwood

The Supreme Court will hear arguments on among principal issues in this medical-malpractice and wrongful death case against a hospital are (1) whether the trial court erred by refusing an instruction on new and independent cause when a pathology report diagnosed cancer that the patient did not receive for almost a year; (2) whether the trial court erred by refusing a “lost chance” instruction when conflicting evidence assessed the patient’s survival chances; and (3) whether by failing to instruct the jury to disregard the independent pathologist’s negligence the trial court commingled valid and invalid liability theories. The Hawleys sued the hospital, claiming the hospital was at fault for the pathology report’s delay and that when she learned of the cancer after it became untreatable. She died while the case was on appeal. The trial court refused instructions on new and independent cause – that the doctors’ delay in reading the pathology report caused any delay in the prospect of treatment; on “lost chance” – that the delay did not harm her because her chances of survival might have been less than 50 percent; and on not taking account of the pathologist’s possible negligence as negligence by the hospital, because the pathologist worked for an independent contractor, not the hospital. The court of appeals affirmed.
Briefs
Court of appeals' opinion
Dissent (Castillo)
Webcast

Transcript

07-0055
In re Gulf Exploration LLC, et al.
from Midland County and the 11th District Court of Appeals, Eastland
For relators: James M. Chaney, Oklahoma City
For real party in interest: Brad Miller, Midland

The Supreme Court will hear arguments on the principal issues are whether the court of appeals had jurisdiction to review a trial court order compelling arbitration and, if so, whether the appeals court erred by vacating the order on grounds that claims were outside the scope of the arbitration clause. In this case working interest partners in an oil- and gas-development agreement moved to arbitrate their claim that the operating partner, Great Western, used an acquired lease adjacent to the development tract to drill offset wells that drew from the reservoir subject to their development agreement and that, under the operating agreement, the operating partners should have been given a right to participate. The agreement included an arbitration provision covering claims over areas of “mutual interest.” The trial court granted the arbitration motion, but the court of appeals in a mandamus action ordered the trial court to rescind the arbitration order because the claim was beyond the scope of the arbitration provision.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0091
Trammell Crow Central Texas Ltd. v. Maria Gutierrez, et al.
from Bexar County and the Fourth District Court of Appeals, San Antonio
For petitioner: W. Wendell Hall, San Antonio
For respondents: Joe Stephens, Katy

The Supreme Court will hear arguments on the issues are (1) whether past crimes were similar enough to make a crime foreseeable, triggering a duty to protect an invitee and (2) whether legally sufficient evidence supported the conclusion that breach of the duty proximately caused the invitee’s injuries. In this case Gutierrez’s husband was killed in an attack in shopping center parking lot outside a theater he and his wife had left. Trammel Crow’s trial evidence suggested Gutierrez may have been targeted for a “hit” because, after his arrest for burglary, Gutierrez turned information on other suspects and told police he feared a drive-by shooting as retaliation. But Gutierrez’s wife presented evidence that he was not afraid of an attack; that his wallet was stolen in the attack and his gold bracelet was broken (indicating a robbery by strangers); and that 10 robberies occurred on the premises among 220 crimes reported there in the previous two years. Her evidence indicated five of those robberies involved deadly weapons. Jurors awarded her a multi-million dollar verdict. The court of appeals affirmed, finding jurors could have determined the attack was a robbery by strangers, not a targeted killing, and was foreseeable.
Briefs
Court of appeals' opinion
Dissent (Duncan)
Webcast

Transcript

ORAL ARGUMENT SUMMARIES FOR DECEMBER 4-5, 2007

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.

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.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0422
Reliance Steel & Aluminum Co. and Samuel Alvarado v. Michael Sevcik and Cathy Loth
from Waller County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioners: Thomas C. Wright, Houston; Russell H. McMains, Corpus Christi
For respondents: David W. Holman, Houston

The Supreme Court will hear arguments on the issue of whether gross sales evidence admissible in personal-injury case.  Among principal issues in this personal-injury case are (1) whether the trial court erred by admitting evidence of the defendant company’s gross sales when plaintiffs were not seeking punitive damages and (2) whether the appeals court erred by modifying an award for past medical expenses. Sevcik and Loth sued Reliance and its truck driver, Alvarado, over a collision that left Sevcik with physical injuries and Loth with permanent brain injury. At trial the judge rejected Reliance’s attempt to show how much Loth earned before the accident, but allowed Loth to introduce evidence of Reliance’s gross sales. On appeal Reliance argues that the gross sales testimony prejudiced the jury’s damages awards. The court of appeals reduced an award for Loth’s past medical expenses by $6,000, but otherwise affirmed damages Reliance challenged.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0755
Frymire Engineering Co. Inc. v. Jomar International Ltd. and Mixer S.R.L.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Stewart K. Smith, Irving
For respondents: Hilaree A. Casada, Dallas

The Supreme Court will hear arguments on the issue of whether equitable subrogation establishes standing for subcontractor seeking reimbursement from third party manufacturer for damages paid. In this case involving premises damages attributed to a faulty water valve, the principal issues are (1) whether a subcontractor obligated by agreement to pay any damages to the premises owner has standing to sue the valve manufacturer under the equitable-subrogation doctrine; (2) whether the doctrine’s application contravenes state contribution law on the theory that the contractor and the valve manufacturer are joint tortfeasors; and (3) whether applying the doctrine violates public policy on assigned claims. Through its insurer Frymire, the subcontractor repairing a water line, paid a Dallas hotel owner for flooding damages and got the hotel’s release from all claims. Frymire then sued Jomar, the valve manufacturer, alleging negligence, products liability and warranty breach.  In uncontradicted testimony, Frymire’s expert attributed the flooding to a faulty valve. The trial court granted summary judgment in Jomar’s favor. The court of appeals affirmed, holding that Frymire did not have standing to sue because it paid the hotel to satisfy its own contractual obligation, not Jomar’s tort liability, and voluntarily agreed to indemnify the hotel owner.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0845
Wagner & Brown Ltd., et al. v. Jane Turner Sheppard
from Upshur County and the Sixth District Court of Appeals, Texarkana
For petitioners: Macey Reasoner Stokes, Houston
For respondent: Ben L. Mesches, Dallas

The Supreme Court will hear arguments on the issue of whether oil and gas lease termination for failure to pay royalties automatically terminates the pooled unit. A principal issue is whether an oil and gas lease terminated for royalties nonpayment attributed to a clerical error automatically terminates the mineral-rights owner’s participation in a pooling agreement. In this case Sheppard leased her one-eighth mineral interests in almost 63 acres to a production company, C.W. Resources, for a quarter of the royalties free of production costs. C.W. Resources and Wagner & Brown had leases on most of the other seven-eighths mineral rights. Under a pooling agreement, Wagner & Brown combined Sheppard’s tract with others it leased and drilled two producing wells. Sheppard was not paid royalties within 120 days of production from those wells, which terminated her lease by its terms. She sued to declare her participation in the pooling agreement terminated because her lease had terminated and to declare she was entitled to a one-eighth share in production from the two wells producing on her tract. The trial court held that her interest was not subject to the pooled unit agreement. The court of appeals affirmed.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0904
Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al.
from Hudspeth County and the Eighth District Court of Appeals, El Paso
For petitioner: Joseph L. Hood Jr., El Paso; Russell S. Johnson, Austin
For respondents: Renea Hicks and Lambeth Townsend, Austin

The Supreme Court will hear arguments on the issue of whether conservation district’s restrictions on new water-transfer application violate state law and landowner’s equal-protection rights. The issues in this water-transfer challenge arising from an attempt by El Paso to buy and transfer water from nearby Hudspeth County are (1) whether the conservation district’s transfer rules violate state law prohibiting more restrictive conditions on out-of-district transfer applications and (2) whether the district’s transfer rules violate the landowner’s equal-protection rights. As part of its aquifer-conservation plan, the Hudspeth County district imposed restrictions on transferring water based on historical water use. That means, in this case, Guitar, which had not used as much water in the past as smaller landowners, could not transfer as much water as the smaller landowners. Guitar argues that those restrictions violate provisions of Senate Bill 2, an amendment to the comprehensive groundwater law enacted in 1997. The trial court held the conservation district’s rules valid. The appeals court affirmed.
Briefs
Court of appeals' opinion
Webcast

Transcript

07-0147
In re Calla Davis, et al.
from Dallas County and the Fifth District Court of Appeals, Dallas
For relator: Craig T. Enoch, Austin
For real party in interest: Grant H. Brenna, Dallas

The Supreme Court will hear arguments on the issue of whether county commissioners abused discretion by refusing to call liquor-sales election after election petitions certified. In this dispute over an order for a local-option election to approve beer and wine sales, the principal issues are (1) whether county commissioners abused their discretion by refusing to order the election after election petitions were certified and, if so, (2) whether the election should be called for the current justice-of-the-peace precinct (from which petitions were gathered) or separate elections for areas of two existing precincts that were in the precinct that voted “dry” in the 1870s. Commissioners acted because the Texas Alcoholic Beverage Code (section 251.80) requires a “wet” or “dry” area must remain unchanged until a vote in the same territory that comprised the precinct when its status was established. In this case the boundaries of the original JP precinct changed since it voted “dry” in 1877. The court of appeals denied mandamus relief that would have ordered commissioners to set the election.
Briefs
Court of appeals' opinion
Webcast

Transcript

ORAL ARGUMENT SUMMARIES FOR NOVEMBER 13-15, 2007

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.

06-0023
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.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0778
City of El Paso, et al. v. Lilli M. Heinrich
from El Paso County and the Eighth District Court of Appeals, El Paso
For petitioners: Eric G. Calhoun, Dallas, and Hadley A. Huchton, El Paso
Respondent: Stewart W. Forbes, El Paso

The Supreme Court will hear arguments on the issue of whether immunity protects pension board sued over recalculated pension.  The principal issues in this lawsuit to determine a widow’s pension benefits are (1) whether the city and pension-benefits board retain immunity if the suit essentially is for money damages and (2) whether officials sued as individuals had governmental or official immunity. Heinrich sued after the pension board reduced by a third the pension she received after her police officer husband’s death. That reflected the board’s calculation for benefits that, it contended, should have been for her son under bylaws in effect when her husband died. The board initially approved 100 percent of the benefits to Heinrich, then determined in the later recalculation that the full-benefits provision to a spouse became effective after Heinrich’s husband died. At first she sued for an amount she alleged was owed, but later pleaded the suit as one to declare her rights to the pension as originally calculated. The trial court denied the board’s immunity defense. The court of appeals affirmed.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0034
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Jeffrey C. Londa, Houston
For respondent: Hal K. Gillespie, Dallas

The Supreme Court will hear arguments on the issue of whether preemption issue involving suit for pay against Dallas mass transit agency.  The issue is whether federal law preempts the transit authority’s immunity in a suit seeking money damages to enforce a grievance resolution when federal money to the transit agency is conditioned on “fair and equitable arrangements” for transit employees. In this case the union alleges that DART, the transit agency, breached an agreement for a pay increase for DART employees. The trial court denied the transit agency’s jurisdictional plea, based on governmental immunity. The court of appeals held that the fair-and-equitable-arrangements language in the federal Urban Mass Transportation Act preempted state immunity.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-1028
John Leland, D.D.S. v. George C. Brandal and Ruth L. Brandal
from Bandera County and the Fourth District Court of Appeals, San Antonio
For petitioner: Kathryn A. Stephens, San Antonio
For respondents: Beth Squires, San Antonio

The Supreme Court will hear arguments on the issue of whether appeals court that held med-mal expert report deficient can remand for extension to cure defect.  The principal issues are (1) whether an appeals court that holds a medical-expert report deficient can remand for consideration of a 30-day extension to file an adequate report or must render judgment for the defendant and, if the appellate court can remand, (2) whether the plaintiff waived the extension by filing supplemental expert reports within time limits upon the defendant’s objection to the original reports. In this case Leland objected to the adequacy of two expert reports the Brandals served. The Brandals then filed supplemental reports before the 120-day deadline expired. The trial court denied Leland’s objection to the supplemented expert reports. When the court of appeals reversed, it remanded the case to consider a 30-day extension to cure the defect. The case also presents a jurisdictional question – whether the interlocutory appeal to the Supreme Court can be heard by the Court, based on whether a concurring opinion in the court of appeals creates a conflict in this case.
Briefs
Court of Appeals' opinion
Concurrence (Duncan)
Webcast

Transcript

07-0195
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.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0518
Rory Lewis, M.D. v. Dewayne Funderburk
from Limestone County and the 10th District Court of Appeals, Waco
For petitioner: Andrew F. MacRae, Austin
For respondent: Amy Thomas, Mexia

The Supreme Court will hear arguments on the issue of whether Jurisdictional issue in appeal brought from denial to dismiss med-mal report.   The principal issue is whether the court of appeals has jurisdiction over an interlocutory appeal from a trial court’s refusal to strike an allegedly deficient expert report in a health-care liability claim. In this case Lewis objected to a second expert report Funderburk filed after the trial court granted him a 30-day extension to cure a defect in the original report. The trial court denied Lewis’s objection to the second report and motion to dismiss. Lewis then appealed the ruling, but the court of appeals dismissed his case for lack of jurisdiction, holding that Texas Civil Practice & Remedies Code section 51.014(a)(10) does not grant an interlocutory appeal to challenge the adequacy of an expert report.
Briefs
Court of appeals' opinion
Dissent (Gray)
Webcast

Transcript

06-0814
Texas Mutual Insurance Co. v. Paula Ledbetter, et al.
from Jones County and the 11th District Court of Appeals, Eastland
For petitioner: Mary A. Keeney, Austin
For respondents: Lance Hall, Sweetwater

The Supreme Court will hear arguments on the issue of whether challenge to nonsuit leaving only an estate in case workers comp insurer claims subrogation rights.   Principal issues are (1) whether a challenge to a trial court’s granting a nonsuit should be reviewed for abuse of discretion or de novo; (2) whether the trial court erred by allowing the nonsuit to be granted; and (3) whether Texas Mutual’s intervention plea was proper. In this case Texas Mutual, which had been paying Ledbetter death benefits under a workers compensation policy, petitioned to intervene in a settlement hearing in a negligence suit Ledbetter filed. The insurance company claimed it had subrogation rights against the settlement proceeds for benefits it had paid. At that hearing, Ledbetter moved to drop all plaintiffs bringing claims over her husband’s death, leaving only his estate in the suit. The trial court granted the nonsuit, struck Texas Mutual’s intervention, ordered that it was not entitled to reimbursement and that it must continue payments. In this Court, Texas Mutual argues that the decision to grant the nonsuit must be reviewed in its entirety and that the nonsuit was improper because it prejudiced Texas Mutual’s claim for affirmative relief by an adverse party. The court of appeals held that the nonsuit did not affect Texas Mutual’s subrogation rights but that the trial court erred by striking the intervention.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0873
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority
from Guadalupe County and the Fourth District Court of Appeals, San Antonio
For petitioner: Gregory S. Coleman, Austin
For respondent: David P. Blanke, Austin

The Supreme Court will hear arguments on the issue of whether ‘paramount use’ question in water authority’s condemnation in public lake.  The issue is whether the river authority, the owner of a lake, offered sufficient evidence challenging the water authority’s condemnation of part of the lake to require the water authority to show its water need was paramount to the lake’s prior public use. In this case, the Guadalupe-Blanco River Authority sued after negotiations broke down on the water authority’s plan to build a second water intake on Lake Dunlap near New Braunfels. The river authority argues that the intake interferes with the lake’s recreational use. The trial court held that Canyon Regional Water Authority had rights to construct the intake under an existing easement, but the court of appeals reversed, holding that the easement allowed only one intake and that water authority offered no evidence of a paramount public use.
Briefs
Court of appeals' opinion
Webcast

Transcript

ORAL ARGUMENT SUMMARIES FOR OCTOBER 16-18, 2007

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.

06-0127
William Chu v. Chong Hui Hong
from Tarrant County and the Second District Court of Appeals, Fort Worth
For petitioner: Murry B. Cohen, Houston
For respondent: G. Stanley Cramb, Bedford

The Supreme Court will hear arguments on the issue of whether third party can be liable in tort under Uniform Fraudulent Transfer Act.  A principal issue arising from this divorce proceeding is whether an independent tort claim exists against a third party under the Uniform Fraudulent Transfer Act when the alleged misconduct was fraud on the marital community. This case challenges a husband’s sale of a doughnut store without his wife’s consent as part-owner, allegedly with Chu’s help in his capacity as attorney for the buyers. After the sale, the husband transferred the proceeds to Korean relatives before he then filed for divorce. Hong, the ex-wife, sued her ex-husband for divorce and Chu as a third party for fraud on the community estate. Jurors awarded damages for lost value and lost profits for the shop and $1.5 million in punitive damages against Chu. The court of appeals affirmed.
Briefs
Court of appeals' opinion, including dissent by Justice Gardner
Webcast

Transcript

06-0178
Forest Oil Corp. and Daniel B. Worden v. James Argyle McAllen, et al.
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioners: Geoffrey L. Harrison, Houston
For respondents: Craig T. Enoch and David Morris, Austin

The Supreme Court will hear arguments on the issue of whether arbitration clause in settlement bars.  The principal issues are (1) whether a disclaimer in a settlement contract – that no other representations were made – bars a claim that an arbitration clause in the settlement was fraudulently induced; (2) whether reliance on a representation contrary to the contracts was justified; and (3) whether reliance on a representation during settlement negotiations was justified. In this case McAllen sued for personal injuries and for death of an endangered rhinoceros that allegedly resulted from radioactive pipe that Forest Oil had used on McAllen’s property and that the company donated for McAllen’s use on a reserve for exotic animals. McAllen and Forest Oil’s settlement agreement ended a royalties dispute and included, among other provisions, an arbitration agreement for environmental claims not covered by the settlement. When Forest Oil moved to compel arbitration, McAllen countered that he was fraudulently induced to agree to arbitration on assurances that contamination or environmental problems did not exist on the land. The trial court denied arbitration and the court of appeals affirmed.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0243
Solar Applications Engineering Inc. v. T.A. Operating Corp.
from Bexar County and the Fourth District Court of Appeals, San Antonio
For petitioner: Douglas W. Alexander, Austin
For respondent: Sharon E. Callaway, San Antonio

The Supreme Court will hear arguments on the issue of whether lien-release provision before final payment in construction contract is condition precedent to suit over the contract.  The issue is whether a construction-contract provision that required the contractor and subcontractors to release liens before final payment constitutes a condition that must be satisfied before a suing over a contract breach. Solar sued T.A. for breach after T.A. terminated the contract under which Solar was building T.A.’s truck stop in San Antonio in its last stages before final payment. T.A. responded to Solar’s suit by arguing that Solar could not sue it for breach before releasing liens. Solar contends that its contract with T.A. required lien releases before final payment, but that provision could not be a condition precedent to a breach-of-contract suit because, in essence, liens were assurance that Solar would be paid. Even if the lien release was a condition precedent, Solar argues, it was not triggered because T.A. terminated the contract. A jury found for Solar. The court of appeals initially affirmed, then reversed and rendered judgment against Solar on rehearing.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0550
New Texas Auto Auction Services, L.P. v. Graciela Gomez de Hernandez, et al.
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Scott T. Clark and Roger W. Hughes, Harlingen
For respondents: Rebecca E. Hamilton, Dallas

The Supreme Court will hear arguments on the issue of whether auctioneers are ‘sellers’ in products-liability actions.  In this case principal issues are (1) whether auto auctioneers can be “sellers” subject to strict liability and (2) whether the auctioneer was negligent for selling a vehicle subject to a defective-tire recall notice. Hernandez sued New Texas Auto Auction after a wreck in Mexico that killed her husband when he was driving an SUV the auction service owned and sold at auction to another auctioneer. The second auctioneer later sold the SUV to a dealer, which then sold it to Hernandez’s husband. She alleges the tire defect caused the accident and claims both strict liability, based on the auctioneer as seller, and negligence because New Texas sold the vehicle with defective tires. New Texas Auto Auction argues that Texas should adopt the Third Restatement of Torts, which excludes auctioneers as sellers. The trial court granted summary judgment for the auctioneer on the strict-liability question and for Hernandez on the negligence issue. The court of appeals reversed on the strict-liability claim.
Briefs
Court of appeals' opinion
Webcast

Transcript

06-0660
Medical Center Dallas Ltd. v. Carlisle Corp.
from Dallas County and the Fifth District Court of Appeals, Dallas
For petitioner: Robert B. Gilbreath, Dallas
For respondent: Michael L. Knapek and William D. Ellerman, Dallas

The Supreme Court will hear arguments on the issue of whether attorneys fees can be recovered in breach-of-warranty case.  The issue is whether attorneys fees may be recovered in a warranty-breach action. In this case Medical Center sued Carlisle for breaching its written warranty of roofing materials against premature deterioration. Jurors awarded Medical Center $110,500 damages for the defective roof and more than $121,000 for attorneys fees. The court of appeals affirmed the judgment for warranty breach, but reversed on attorneys fees because the hospital’s warranty claim was distinct from a breach-of-contract claim that would allow attorneys fees to be awarded.
Briefs
Court of appeals' opinion
Webcast

Transcript

05-1042
JCW Electronics Inc. v. Pearl Iriz Garza
from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: Thomas F. Nye, Corpus Christi
For respondents: Jane Webre, Austin

The Supreme Court will hear arguments on the issue of whether implied-warranty damages are subject to comparative liability restrictions.  The principal issues in this product-liability case include (1) whether damages for breach of implied warranty are subject to the proportionate-responsibility statute or comparative responsibility under the Uniform Commercial Code chapter 2; (2) whether a contractor who installed a telephone in a jail cell can be liable based on breach of implied warranty for an inmate’s suicide when the inmate used a phone cord to strangle himself; and (3) whether JCW was deprived of its statutory suicide defense by the trial court’s denial of a jury question on it. Among other claims, Garza, mother of the man who committed suicide, sued for negligence and for breach of an implied warranty of suitability for a particular purpose. Jurors found for Garza on the warranty claim and determined the inmate was 60 percent negligent. The trial court denied the company’s motion for a take-nothing judgment, based on proportionate responsibility. The court of appeals affirmed.
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06-0418
HCBeck Ltd. v. Charles Rice
from Tarrant County and the Second District Court of Appeals, Fort Worth
For petitioner: David Rodriguez Weiner, Dallas
For respondent: Paul Boudloche, Fort Worth

The Supreme Court will hear arguments on the issue of whether contractor is immune because construction-site owner pays workers comp premiums for subcontractor’s employee.  The principal issue is whether a general contractor has “provided” workers compensation insurance when the construction-site owner pays premiums for a subcontractor’s insurance. In this case the site owner paid workers comp premiums for HCBeck employees and for those of a subcontractor, Greer, that HCBeck hired. Its contract with HCBeck, the owner reserved the right to provide workers comp insurance for HCBeck and subcontractors but, if not provided, required that HCBeck buy the insurance from the owner’s designated agent. The contract required subcontractors to comply with its terms. Greer, the subcontractor, was not an additional insured under HCBeck’s policy. When Rice, the subcontractor’s employee, sued HCBeck for negligence over a job injury, HCBeck argued that Rice was a “deemed employee” and that HCBeck was immune because Rice’s exclusive remedy was workers comp. The trial court granted summary judgment for HCBeck, but the court of appeals reversed on the immunity issue.
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07-0119
In re BP Products North America Inc.
from Galveston County and the First District Court of Appeals, Houston
For relator: Katherine Mackillop, Houston
For real party in interest: David W. Holman, Houston

The Supreme Court will hear arguments on the issue of whether apex-deposition doctrine protects retired CEO.  A principal issue in this case involving deposition of a retired chief executive officer is whether the apex-deposition doctrine that protects a company’s highest officers from harassing depositions, absent actual and pertinent knowledge, applies to a retired CEO. BP sought mandamus relief when plaintiffs got an order allowing BP’s then CEO, John Browne, to be deposed in a lawsuit over the Texas City refinery explosion. The court of appeals denied BP’s mandamus petition. When Browne resigned in May after admitting perjury in a British court, the plaintiffs moved to dismiss as moot the company’s mandamus petition. BP resists that motion.
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ORAL ARGUMENT SUMMARIES FOR SEPTEMBER 26-27, 2007

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.

06-0369
In re Jack Jorden, M.D., et al.
from Smith County and the 12th District Court of Appeals, Tyler
For relator: R. Brent Cooper, Dallas
For real party in interest: Bill Liebbe, Tyler

The Supreme Court will hear arguments on the issue of whether pre-suit deposition rule supersedes medical-malpractice limits.  The issue in this effort to take depositions before a lawsuit is filed on a medical malpractice claim, a procedure authorized under Texas Rule of Civil Procedure 202, is whether Rule 202 is trumped by statutory medical-malpractice restrictions. In this case a woman’s son, a physician, hired a lawyer to investigate the possibility of suing doctors who treated his mother before she died of a heart attack. His counsel petitioned the trial court to depose the mother’s primary-care doctor, an emergency-room doctor and representatives of the hospital and clinic where she was treated. The trial court denied the petition for pre-suit depositions. The court of appeals granted mandamus relief, holding that Texas Civil Practices and Remedies Code chapter 74, a provision of House Bill 4's sweeping tort reform, did not preclude Rule 202 depositions to investigate the merits of a suit.
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06-0574
20801 Inc. v. John L. Parker
from Harris County and the 14th District Court of Appeals, Houston
For petitioner: David P. Andis, The Woodlands
For respondent: Barney L. McCoy, Houston

The Supreme Court will hear arguments on the issue of whether ‘safe harbor’ element was shown in dram shop action.  The principal issue is whether the appeals court erred by holding that a bar and pool hall owner failed to establish a “safe harbor” under Texas’ statutory dram shop law by proving that it did not encourage employees to serve alcohol to an intoxicated customer. Parker sued 20801, the owner of Slick Willie’s, alleging that its employees provided him perhaps 15 free drinks at the bar’s grand opening before he was assaulted in the parking lot by another bar patron. Parker claimed the drinks were a proximate cause of the head injuries he suffered in the fight. The trial court granted summary judgment to 20801 Inc., but the court of appeals reversed on the safe harbor provision.
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06-0952
In re Eduardo “Walo” Gracia Bazan
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For relator: Kelly K. McKinnis, McAllen
For real party in interest: Cheryl Hole, Edinburg

The Supreme Court will hear arguments on the issue of whether ‘forgiveness doctrine’ operates to bar removal of officer convicted of crime alleged before re-election.  The issue is whether is a constable may be removed from office and suspended pending appeal for a conviction that occurred years before his re-election. Bazan, a constable elected from a Hidalgo County precinct, seeks mandamus relief from a court order removing him for a felony conviction and suspending him during his appeal. Bazan was convicted of stealing a car by deception on allegations dating to October 2001, three years before he was re-elected. The trial court cited two provisions of the Texas Local Government Code requiring the removal and suspension, but Bazan argues that Local Government Code section 87.001 bars his removal for crimes that occurred before his re-election. The state argues that the Texas Constitution prohibits anyone convicted of bribery from holding public office, that Bazan’s crime was bribery, so the constitution trumps Local Government Code section 87.001. The court of appeals denied Bazan’s mandamus petition.
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06-0089
City of Waco v. Robert Lopez
from Limestone County and the 10th District Court of Appeals, Waco
For petitioner: Enid Wade, Waco
For respondent: R. John Cullar, Waco

06-0416
In re Columbia Medical Center of Las Colinas, et al.
from Dallas County and the Fifth District Court of Appeals, Dallas
For relator: R. Brent Cooper, Dallas
For real parties in interest: Ben C. Martin, Dallas

06-0491
In re Baylor Medical Center at Garland
from Dallas County and the Fifth District Court of Appeals, Dallas
For relator: R. Brent Cooper, Dallas
For real parties in interest: William M. Hayner Jr., Gil L. Daley II, Dallas

The Supreme Court will hear arguments on the issue of whether trial court abused discretion by ordering new trial ostensibly on juror affidavits.  Among the principal issues in this medical-malpractice case are (1) whether Baylor’s mandamus request in this Court – on the same or similar issues dismissed as moot in an earlier proceeding before the Court – justifies bypassing the appeals court and (2) whether the trial court in one instance and its successor abused their discretion either by (a) vacating an order reinstating a judgment in Baylor’s favor or (b) by ordering a new trial based on post-trial juror affidavits in the absence of other grounds supporting a new trial. In an earlier stage in the underlying proceedings, after a jury verdict for Baylor, Baylor challenged a new trial order in a mandamus petition that the court of appeals denied. Baylor filed for mandamus relief in the Supreme Court, but later moved to dismiss it as moot because a new judge vacated the new trial order and reinstated the verdict. That successor judge then vacated her order, allowing a second trial to proceed. Baylor filed for mandamus relief directly with the Supreme Court.
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ORAL ARGUMENT SUMMARIES FOR APRIL 10-11, 2007

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.

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.
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06-0501
Juan Mario Villafani, M.D. v. Adela Trejo
from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg
For petitioner: TBA
For respondent: Robert E. Brzezinski, San Antonio

The principal issue is whether an appellate court has jurisdiction to consider an appeal from the trial court’s refusal to dismiss a medical-malpractice lawsuit, based on an allegedly inadequate expert report, when the plaintiff later took a nonsuit dropping the action but retaining the possibility of filing another. In this case, filed under the previous medical-malpractice statute, the trial court granted Trejo a nonsuit without prejudice after it denied the doctor’s motion for sanctions and dismissal. The court of appeals, in a split decision, affirmed.
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06-0502
Jan N. Ogletree, M.D., and Heart Hospital of Austin v. Nancy Kay Matthews and Luann Matthews
from Travis County and the Third District Court of Appeals, Austin
For petitioners: TBA
For respondents: Charles J. Young, Austin

Principal issues in this medical-malpractice action are whether, under House Bill 4 amendments, (1) interlocutory appeal is available to challenge the trial court’s decision to deny a dismissal motion based on an expert report’s deficiency when the court also granted an extension to cure it; (2) whether those deficiencies can be cured by a report from a new expert; and (3) whether a defendant – the hospital in this case – waives a challenge to an expert report by not objecting to omission of a report addressing the required causation element. In this case the deficient expert report bearing on a physician’s alleged negligence noted that another expert was needed to support the malpractice claim. Experts assessing the hospital’s nursing care were nurses, who under the malpractice statute cannot offer an opinion that links negligence to the cause of death or injury. The hospital did not object to the expert reports until it moved to dismiss the case. The trial court denied the physician’s and the hospital’s dismissal motions, granted an extension¬¬ to the cure the report on the physician’s care and held the hospital waived its objection to reports on nursing care by objecting too late. The court of appeals affirmed.
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05-0541
First American Title Insurance Co., et al. v. Comptroller of Public Accounts, et al.
from Travis County and the Third District Court of Appeals, Austin
For petitioners: Steven Reed, Washington, D.C.
For respondents: Christine Monzingo, Austin

The principal issue is whether the comptroller’s interpretation of Texas’ “retaliatory” tax statute for premiums paid by out-of-state title-insurance companies violates federal and state equal-protection guaranties. Under the comptroller’s recent interpretation of the law – which allows the state to tax at a rate equal to another state’s higher tax on Texas title-insurance companies doing business there – Texas assesses the retaliatory rate based on how in-state insurers and agents divide the proceeds from title-insurance premiums. In Texas, by state law, insurers get 15 percent of the premiums paid and agents take 85 percent. Texas assumes insurers and agents divide the premium tax burden by the same ratio – 15 percent of the tax paid by the company, 85 percent by the agent, even if agents and insurers decide differently. The two out-of-state title insurers challenging this assessment argue that Texas charged them a retaliatory tax equal to 85 percent of the premium rate because their home states did not deem the division of the tax burden as Texas does. The companies argue in their challenge that the comptroller’s assessment actually leads to Texas charging a retaliatory tax when the basis for one – higher premium tax rates in another state – may not exist and, in any case, would be higher than the home states’. The trial court held for the comptroller and the court of appeals affirmed.
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06-0247
Ulico Casualty Co. v. Allied Pilots Association
from Tarrant County and the Second District Court of Appeals, Fort Worth
For petitioner: Donald Colleluori, Dallas
For respondent: B. Daniel Berryman, Fort Worth

Principal issues are (1) whether an exception exists to the general rule that an insurer has no liability for defense costs for a claim after a policy’s expiration when the insurer told the policyholder it would pay the costs and, if such an exception exists, (2) whether the court of appeals erred by characterizing the claim as one for contract breach for which attorneys fees can be awarded. In this case Ulico sued Allied for a declaration that it did not owe Allied defense costs in a suit Allied won. Allied had filed a claim when it was sued, in a separate suit, but filed it after its policy with Ulico expired. Despite that, Ulico told Allied that it would pay for Allied’s defense in a letter that reserved its rights to contest coverage. In a subsequent letter the insurer restated that it would pay defense expenses “pursuant to” the earlier “reservation of rights” letter. The trial court awarded defense costs to Allied, based on waiver and estoppel – that Ulico had given up its right to deny defense costs by assuring Allied that its defense would be paid for. The court of appeals affirmed.
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ORAL ARGUMENT SUMMARIES FOR MARCH 20-22, 2007

The first argument begins each day at 9 a.m. in the courtroom in Austin. Both sides will have 20 minutes apiece for argument in each case.

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.

05-0721
SSP Partners and Metro Novelties Inc. v. Gladstrong Investments (USA) Corp.
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg

In this indemnity action from a wrongful-death and products-liability case, the principal issues include (1) whether the court of appeals erred by holding the “apparent manufacturer” doctrine applied to a U.S. company held out as the product manufacturer by its closely allied foreign company and (2) whether the U.S. firm is the manufacturer because it and the foreign company are indistinguishable. SSP Partners sued Gladstone USA for indemnity after a judgment in a case alleging a child died as a result of a defective lighter. The trial court granted Gladstrong USA’s motion asserting that no evidence showed it manufactured the lighter. The court of appeals reversed, holding in part that the common-law apparent manufacturer doctrine survives statutory indemnity provisions in Texas Civil Practices and Remedies Code chapter 82.
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05-0882
Perry Homes, et al. v. Robert E. Cull and S. Jane Cull
from Tarrant County and the Second District Court of Appeals, Fort Worth

The principal issues are (1) whether a defendant must show prejudice to establish that plaintiffs waived their arbitration rights and (2) whether the defendant is prejudiced by the plaintiffs’ pretrial discovery that would not have been available in arbitration. In this case the Culls initially resisted arbitration of their complaints against Perry Homes about construction defects. The Culls argued that arbitration was unconscionable because the chosen arbitration procedure was expensive and biased. After they pursued discovery for close to a year before trial, the Culls then moved for arbitration. Perry opposed their motion, contending the Culls had waived their right to arbitrate. The trial court granted the Culls’ motion. Perry challenged the Culls’ arbitration award, but the trial court confirmed it and the court of appeals affirmed.
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05-1023
Montgomery County v. David Park
from Montgomery County and the 10th District Court of Appeals, Waco

In this retaliation action, the principal issues are (1) whether elimination of job duties that indirectly may affect pay constitutes an adverse personnel action under the Whistleblower Act and (2) whether alleged sexual harassment by a county commissioner reported to the sheriff’s office or the county attorney constitutes a good-faith report to “an appropriate law enforcement authority.” Park, a sheriff’s lieutenant, sued the county after the commissioner he reported prompted a change in security-staffing responsibility for the county convention center. Because Park was responsible for scheduling convention-center security officers – including himself – he lost extra pay. His base compensation was unchanged. The trial court granted summary judgment for the county, but the court of appeals reversed, holding in part that Park raised material fact issues, including whether his work assignment and pay were adversely affected.
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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.  
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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.
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05-0940
Central Ready Mix Concrete Co. Inc. v. Luciano Islas
from Hidalgo County and the 13th District Court of Appeals, Corpus Christi/Edinburg

A principal issue is whether a contractor owes any duty for the safety of an independent subcontractor’s employees performing dangerous work. In this case Islas sued Central Ready Mix for injuries he suffered as he cleaned the rotating mixer on one of Central’s cement trucks. Islas, employed by a subcontractor hired by Central to clean the trucks’ mixing drums, was caught as he was climbing out of the mixing drum when a co-worker started the truck and the mixer began turning. A jury determined that Central was 20 percent responsible, but the trial court granted the company’s motion to disregard the verdict. The court of appeals reversed.
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05-0580
A.G. Edwards & Sons Inc. v. Maria Alicia Beyer
from El Paso County and the Eighth District Court of Appeals, El Paso

In this case alleging a financial institution lost documentation creating a survivorship right in a joint account, the principal issues are (1) whether Texas Probate Code section 439(a) bars extrinsic evidence of intent in a contract-breach claim over creation of the joint-tenancy account and (2) whether the “intertwining” exception to the duty to segregate attorney’s fees should include fees recovery in a related federal court proceeding. Beyer sued A.G. Edwards & Sons for conversion and breach of contract, among other claims, after the company allegedly lost an agreement that would have made Beyer joint owner of her father’s investment account and sole owner when he died. Four days before her father lapsed into a coma, A.G. Edwards told her the agreement was missing, then froze the $1.19 million account after he died. When Beyer initially sued for negligence, the company submitted the proceeds to federal court to determine ownership. In this case Beyer sought as damages the money from the account split among her siblings to settle the interpleader action in federal court. The court of appeals affirmed a breach-of-contract verdict, admitting evidence that showed the father’s intent to create the joint account, and affirmed attorneys fees that were not segregated because the court held the fees were inextricably intertwined.
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05-0748
Southwestern Bell Telephone Co. v. Marketing On Hold Inc.
from Cameron County and the 13th District Court of Appeals, Corpus Christi/Edinburg

In this interlocutory appeal from a class-certification order, the principal issues are (1) whether a corporation advancing claims it got by assignment can serve as class representative in a challenge to Southwestern Bell’s billing for passed-along municipal fees and (2) whether the certified class met the requirement that common questions among the class predominate. Marketing On Hold, a firm that scrutinizes its clients’ telephone bills for improper billing, took five claims by assignment and sought to certify the suit as a class action. The trial court named it class representative for nearly 7,000 Southwestern Bell customers in three phone-service categories. Of the claims Marketing On Hold held by assignment, none was in one of those categories. The court of appeals affirmed the class-certification order.
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06-0074
Pastor Rick Barr and Philemon Homes Inc. v. City of Sinton
from San Patricio County and the 13th District Court of Appeals, Corpus Christi/Edinburg

In this case, a challenge to a zoning restriction on houses for parolees established as a ministry, the principal issues are (1) whether the Texas Religious Freedom Restoration Act requires the city to accommodate the houses despite zoning prohibiting them and (2) whether the act requires the city to prove the regulation is the least-restrictive means of furthering a compelling governmental interest. Barr sued to declare that the zoning violates state constitutional protection and the Religious Freedom Restoration Act because it prohibits a correctional or rehabilitation facility within 1,000 feet of the church – in this case, the church that sponsors them. The trial court held that the zoning was not a substantial burden Barr’s religious beliefs. The court of appeals affirmed.
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