TEXAS SUPREME COURT CASES
SET FOR ORAL ARGUMENT
SET FOR ORAL ARGUMENT
PETITIONS SCHEDULED TO BE ARGUED
THE FOLLOWING PETITIONS FOR REVIEW ARE GRANTED AUGUST 29, 2008:
07-0490
MANN FRANKFORT STEIN & LIPP ADVISORS, INC., MFSL GP, L.L.C., AND MFSL EMPLOYEE
INVESTMENTS, LTD. v. BRENDAN J. FIELDING; from Harris County; 1st district
(01-05-01080-CV, ___ SW3d ___, 05-03-07)
[Note: This case has been set for oral argument at 9:00 a.m., November 13, 2008.]
Time allotted to argue: 20/20 minutes
07-0806
WALTER E. HARRELL v. THE STATE OF TEXAS; from Terry County; 7th district
(07-06-00469-CR & 07-06-00470-CR, ___ SW3d ___, 08-13-07)
[Note: This case has been set for oral argument at 9:00 a.m., November 13, 2008.]
Time allotted to argue: 20/20 minutes
07-0818
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND
RESEARCH CORPORATION AND ROBERT E. TANG; from Dallas County; 5th district
(05-06-01024-CV, 232 SW3d 883, 08-29-07) 2 petitions
[Note: This case has been set for oral argument at 9:00 a.m., December 9, 2008.]
Time allotted to argue: 20/20 minutes
08-0379
IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., AND C.T.M., CHILDREN; from Collingsworth County;
7th district (07-07-00042-CV, ___ SW3d ___, 02-25-08)
[Note: This case has been set for oral argument at 9:00 a.m., October 14, 2008.]
Time allotted to argue: 20/20 minutes
THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS SET FOR ORAL ARGUMENT:
07-0871
IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION; from Bexar County; 4th district (04-07-
00464-CV, ___ SW3d ___, 10-17-07)
[Note: This case has been set for oral argument at 9:00 a.m., December 9, 2008.]
Time allotted to argue: 20/20 minutes
ORDERS ON CASES GRANTED
THE FOLLOWING PETITION FOR WRIT OF HABEAS CORPUS IS SET FOR ORAL
ARGUMENT:
08-0093
IN RE GAYLE E. COPPOCK; from Denton County; 2nd district (02-07-00427-CV, ___ SW3d ___, 01-
04-08)
[Note: This case has been set for oral argument at 9:00 a.m., December 10, 2008.]
Time allotted to argue: 20/20 minutes
THE FOLLOWING CAUSES WERE SET FOR SUBMISSION ON AUGUST 29, 2008
05-0272
ENTERGY GULF STATES, INC. v. JOHN SUMMERS; from Jefferson County; 9th district
(09-04-00152-CV, ___ SW3d ___, 12-30-04)
[Note: Oral argument of this case will be conducted on Thursday, October 16, 2008 at 9:00 a.m. at Southern
Methodist University, Dallas, Texas. See Tex. Const. art. V, § 3(a).]
Time allotted to argue: 20/20 minutes
06-1034
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE
LUECK; from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06)
[Note: This cause has been set for oral argument at 9:00 a.m., November 12, 2008.]
Time allotted to argue: 20/20 minutes
07-0123
DENNIS L. MIGA v. RONALD L. JENSEN; from Tarrant County; 2nd district
(02-05-00277-CV, ___ SW3d ___, 11-30-06)
[Note: This cause has been set for oral argument at 9:00 a.m., October 14, 2008.]
Time allotted to argue: 20/20 minutes
07-0240
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo
County; 13th district (13-06-00053-CV, ___ SW3d ___, 02-08-07)
[Note: This cause has been set for oral argument at 9:00 a.m., October 15, 2008.]
Time allotted to argue: 20/20 minutes
07-0322
IN RE JAMES ALLEN HALL; from Bexar County; 4th district
(04-07-00050-CV, ___ SW3d ___, 02-14-07)
[Note: This cause has been set for oral argument at 9:00 a.m., November 12, 2008.]
Time allotted to argue: 20/20 minutes
07-0520
ED VANEGAS, JIMMY D. HALMAN, SAM ARMSTRONG, ALEX CARBAJAL ROGER
FARRINGTON, CURTIS HUFF AND TITO BETANCUR v. AMERICAN ENERGY SERVICES,
NIEWOEHNER PARTNERSHIP, L.P., RCH/HSJ/CCM/MCPI, L.P., AUTRY STEPHENS, JOHN
CARNETT, BRACK BLACKWOOD AND DENNIE MARTIN; from Midland County; 11th district
(11-06-00118-CV, 224 SW3d 544, 05-10-07)
[Note: This cause has been set for oral argument at 9:00 a.m., October 15, 2008.]
Time allotted to argue: 20/20 minutes
07-0541
TXI TRANSPORTATION COMPANY, ET AL. v. RANDY HUGHES, ET AL.; from Wise County; 2nd
district (02-04-00242-CV, 224 SW3d 870, 05-24-07) as amended
[Note: Oral argument of this case will be conducted on Thursday, October 16, 2008 at 9:00 a.m. at Southern
Methodist University, Dallas, Texas. See Tex. Const. art. V, § 3(a).]
Time allotted to argue: 20/20 minutes
07-0665
IN RE MORGAN STANLEY & CO. INCORPORATED, SUCCESSOR TO MORGAN STANLEY
DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07)
[Note: This cause has been set for oral argument at 9:00 a.m., October 15, 2008.]
Time allotted to argue: 20/20 minutes
07-0737
IN RE LESTER COLLINS, M.D.; from Smith County; 12th district
(12-06-00078-CV, 224 SW3d 798, 05-14-07)
[Note: This cause has been set for oral argument at 9:00 a.m., November 12, 2008.]
Time allotted to argue: 20/20 minutes
07-0760
GREG TANNER AND MARIBEL TANNER, INDIVIDUALLY AND AS NEXT FRIENDS OF K.T.
AND R.T., MINOR CHILDREN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; from
Caldwell County; 11th district (11-05-00371-CV, 232 SW3d 330, 08-09-07)
[Note: This cause has been set for oral argument at 9:00 a.m., October 14, 2008.]
Time allotted to argue: 20/20 minutes
07-0931
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County; 7th
district (07-06-0016-‑CV, ___ SW3d ___, 08-13-07)
[Note: Oral argument of this case will be conducted on Thursday, October 16, 2008 at 9:00 a.m. at Southern
Methodist University, Dallas, Texas. See Tex. Const. art. V, § 3(a).]
Time allotted to argue: 20/20 minutes
(Justice Willett not sitting)
07-0970
LAURI SMITH AND HOWARD SMITH v. PATRICK W.Y. TAM TRUST; from Collin County; 5th
district (05-06-00356-CV, 235 SW3d 819, 07-31-07)
[Note: This cause has been set for oral argument at 9:00 a.m., November 13, 2008.]
Time allotted to argue: 20/20 minutes
05-0801 Set for oral argument on September 9, 2008
S. MURTHY BADIGA, M.D. v. MARICRUZ LOPEZ; from Hidalgo County; 13th district
(13-04-00452-CV, ___ SW3d ___, 07-07-05)
Opinion below by Chief Justice Rogelio Valdez: Badiga v. Lopez (Tex.App.- Corpus Christi, July 7, 2005,
pet. filed)(interlocutory appeal dismissed for want of jurisdiction; expert report in med-mal suit was
untimely, but trial court granted 30-days extension, an order not subject to interlocutory review).
This is an interlocutory appeal by appellant, S. Murthy Badiga, M.D., asserting that the trial court erred by
failing to dismiss a medical malpractice suit after an expert report was untimely filed by appellee, Maricruz
Lopez, in violation of Section 74.351 of the Texas Civil Practice and Remedies Code. We dismiss this
appeal for want of jurisdiction.)
06-0948 Scheduled for oral argument on Sep. 10, 2008
CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district
(01-05-01157-CV, ___ SW3d ___, 09-14-06)
Opinion below: City of Pasadena v. Smith (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jennings)
[governmental entities law, public employment law, city, police, termination, suspension]
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Higley
01-05-01157-CV City of Pasadena, Texas v. Richard A. Smith
Appeal from 113th District Court of Harris County (Judge Patricia Hancock)
(“Section 143.057(j) expressly limits judicial review of a hearing examiner’s award to situations in which
the hearing examiner “was without jurisdiction or exceeded its jurisdiction [or its] order was procured by
fraud, collusion, or other unlawful means.” Tex. Loc. Gov’t Code Ann. § 143.057(j). Here, the City is not
seeking an interpretation of a statute and a determination of its rights under that statute as contemplated
under the DJA. Rather, it is attempting to appeal a hearing examiner’s award based on a misapplication of
law. This it cannot do. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.
2002) (“The DJA does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief
does not confer jurisdiction on a court or change a suit’s underlying nature.”). Accordingly, we hold that
the district court did not have jurisdiction to hear the City’s appeal under the DJA.”)
07-0043 Set for oral argument on September 9, 2008
DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v.
APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06)
2 petitions
Opinion below: Apache Corp. v. Dynegy , 214 S.W.3d 554 (Tex.App.- Houston [14th Dist.] Dec. 7, 2006)
(Anderson) (bizlaw, gas contract, breach of contract, unfair trade practices, UDJA, attorney fees)
AFFIRMED AS MODIFIED: Opinion by Justice Anderson
Before Chief Justice Hedges, Judge Murphy, Justice Anderson
14-05-00010-CV Apache Corporation v. Dynegy Midstream Services Limited Partnership and Versado
Gas Processors, LLC
Appeal from 234th District Court of Harris County (Trial Court Judge: Bruce D. Oakley)
07-0783 Set for oral argument on Sep. 11, 2008
IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-
CV, 229 SW3d 396, 05-03-07) (PI suit broken hostipal bed, HCLC med-mal or premises liability
suit?)
07-0131 Set for oral argument on Sep. 10, 2008
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND
SARAGOSA ALANIZ, BOTH INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD,
SARAGOSA MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-
06)
Opinion below by Chief Justice Alma L. López (with dissent): Franka v. Velasquez (Tex.App.- San
Antonio, Sep. 6, 2006) (med-mal suit against governmental unit or employee, trial court's denial of
employees' motion to dismiss, motion to substitute entity for named employees, affirmed; not clear that
claim could be brought against the entity under the TTCA.)
John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. appeal the trial court's orders denying their
motion for summary judgment of substitution or dismissal. Franka and Reddy contend that the trial court
erred in denying their motion because they were entitled to be dismissed from the underlying cause
pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code. Because we hold that
Franka and Reddy failed to establish that the underlying lawsuit could have been brought against the
University of Texas Health Science Center, we affirm the trial court's orders.
* * *
The statutory provision at issue:
If a suit is filed against an employee of a governmental unit based on conduct within the general scope of
that employee's employment and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in the employee's official capacity
only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files
amended pleadings dismissing the employee and naming the governmental unit as defendant on or
before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
* * *
Franka and Reddy appear to be suggesting that the raising of a fact issue as to whether the suit "could
have been brought under this chapter against the governmental unit" should be sufficient to enable a trial
court to dismiss employees under section 101.106(f). Such a suggestion is untenable in view of its
potential result. If the employees were dismissed and immunity was ultimately held not to have been
waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted,
thereby resulting in the dismissal of a lawsuit, when a fact issue exists, see Tex. Dept. of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), a trial court also is not permitted to dismiss employees
from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental
unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the
suit "could have been under this chapter against the governmental unit." Tex. Civ. Prac. & Rem. Code
Ann. § 101.106(f) (Vernon 2005). The trial court's orders are affirmed.
07-0419 Set for oral argument on Sep. 9, 2008
IN RE LABATT FOOD SERVICE, L.P.; from Bexar County; 4th district
(04-07-00312-CV, ___ SW3d ___, 05-16-07)
PETITION FOR WRIT OF MANDAMUS DENIED
The court has considered relator's petition for a writ of mandamus and is of the opinion that relief should
be denied. See Tex. R. App. P. 52.8(a). Accordingly, relator's petition for a writ of mandamus is denied.
PER CURIAM
1. This proceeding arises out of Cause No. 2006-CI-18007, styled Carlos Dancy and Debra Dancy,
Individually and as Personal Representatives of the Estate of Carlos Dancy, Jr., et al. v. Labatt
Institutional Supply Company d/b/a Labatt Food Service, pending in the 150th Judicial District Court,
Bexar County, Texas, the Honorable Janet Littlejohn presiding. However, the challenged order was signed
by the Honorable Joe Frazier Brown, Jr., presiding judge of the 57th Judicial District Court, Bexar County,
Texas.
07-0697 Set for oral argument on Sep. 10, 2008
PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY;
from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07)
2 petitions
OPINION BELOW: O'Donnell v. Smith, No. 04-04-00108-CV, 234 S.W.3d 135 (Tex.App.- San Antonio,
July 25, 2007)(Opinion on remand by Justice Phylis J. Speedlin)
("Thomas O'Donnell, as executor of the estate of Corwin D. Denney, appeals from a summary judgment
granted in favor of the law firm and attorneys who provided legal advice to Denney during his lifetime in
his capacity as executor of his wife's estate. This is the second time we have been asked to decide this
case. On the first occasion, we affirmed the judgment of the trial court. We held, based on the summary
judgment evidence, that O'Donnell could not recover on behalf of Denney's estate because no cause of
action for legal malpractice accrued during Denney's lifetime; therefore, O'Donnell in his representative
capacity lacked privity of contract with the attorneys and the law firm he was attempting to sue. See
O'Donnell v. Smith, No. 04-04-00108-CV, 2004 WL 2877330 (Tex. App.--San Antonio Dec. 15, 2004),
rev'd, 197 S.W.3d 394 (Tex. 2006) (per curiam). On review, the Supreme Court vacated our judgment
and remanded the case to this court for reconsideration in light of its recent holding in Belt v.
Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006), that a personal representative
of an estate steps into the shoes of the decedent and may sue the decedent's lawyers for estate-
planning legal malpractice. After considering the issues on remand in light of Belt, we affirm the granting
of summary judgment in part, reverse the granting of summary judgment in part, and remand the cause to
the trial court for further proceedings.")
07-0787 Scheduled for oral argument on Sep 11, 2008
SPECTRUM HEALTHCARE RESOURCES, INC., AND MICHAEL SIMS v. JANICE MCDANIEL AND PATRICK
MCDANIEL; from Bexar County; 4th district
(04-06-00185-CV, 238 SW3d 788, 08-22-07)
OPINION BELOW: McDaniel v. Spectrum Healthcare Resources, Inc., No. 04-06-00185-CV, 238 S.W.3d
788 (Tex.App.- San Antonio, August 22, 2007, pet. granted)(Opinion by Justice Phylis J. Speedlin
("The controlling legal issue presented in this appeal is whether an Agreed Special Setting and Docket
Control Order incorporated a written agreement extending the date for serving an expert report under
section 74.351(a) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a) (Vernon Supp. 2006). Because we hold that the docket control order includes within it an
unambiguous agreement that extended the date, we reverse the trial court's order and remand the cause
to the trial court for further proceedings.
* * *
We hold the parties' written agreement, as reflected in the docket control order as a whole, can be given
a definite and certain meaning as a matter of law and includes within it an unambiguous agreement that
extended the date for serving the section 74.351 expert report. Accordingly, we reverse the trial court's
order granting the defendants' motion to dismiss, and remand the cause to the trial court for further
proceedings.")
07-0599 Scheduled for oral argument on Sep. 11, 2008
RETAMCO OPERATING, INC. v. REPUBLIC DRILLING COMPANY; from Bexar County; 4th district
(04-06-00727-CV, ___ SW3d ___, 03-28-07)
Is A Single Tortious Act Sufficient To Confer Specific Jurisdiction?
OPINION BELOW: Republic Drilling Co. v. Retamco Operating, Inc., No. 04-06-00727-CV (Tex. App.- San
Antonio, March 28, 2008, pet. granted)(Opinion by Justice Karen Angelini) (denial of out-of-state
defendant's special appearance reversed)
This is an interlocutory appeal from an order denying the special appearance of Republic Drilling Corp.
("Republic"), a nonresident defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon
Supp. 2005). We reverse the trial court's order."
* * *
"Here, the record reflects that Republic is a nonresident corporation, providing construction and drilling
services outside the State of Texas; it does not have a place of business in Texas; it does not maintain an
agent in Texas; it does not have an office in Texas; it does not advertise in Texas; it does not own
personal property in Texas; it does not provide any services or work in Texas; it does not have a
telephone number in Texas; it does no marketing or selling of any kind in Texas; it has not engaged in
exploration, production, financing, consulting, or marketing of oil and gas properties in Texas; it does not
have any partnerships or joint ventures with anybody in Texas; it has never performed operations in
Texas; and, it has never done business in Texas.
The only "contact" Republic appears to have had with the State of Texas was the single transaction
wherein Republic acquired non-operating oil and gas leases in Fayette County. (3) However, unlike
Trigeant, the present transaction was executed not in Texas but in California and Colorado, in what
appears to be a deliberate attempt to "purposefully direct" contact outside the forum state. Trigeant, 183
S.W.3d at 727. Further, Retamco does not direct this court to any other contacts that would evidence a
showing that Republic's activities were "purposefully directed" to this forum, nor does our review of the
record disclose any such contacts. Guardian Royal Exchange, 815 S.W.2d at 223. And while Retamco
relies on Trigeant in support of its position that the single contact by Republic in receiving a fraudulent
transfer of oil and gas leases is sufficient to confer specific jurisdiction in the present case, we are mindful
that Michiana directs that the purposeful-availment standard is not met when the sole contact takes place
outside the forum state. Michiana, 168 S.W.3d at 787."
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