This week, the Texas Supreme Court heard oral arguments in four cases. On Tuesday, the Court sat in Austin; on Wednesday, the Court had a special sitting in Amarillo. (( I don’t know whether audio or video recordings were made of the Amarillo sitting or when they will be available online. ))

On Tuesday, the Court heard arguments about the oil & gas question certified from the Fifth Circuit. The Court also heard arguments (yet again) about when an extension can be granted to cure a deficient medical-malpractice expert report. (A third case, which was a dispute between two insurers about additional insureds under a CGL policy, was dismissed before argument pursuant to the parties’ settlement.)

On Wednesday, the Court heard arguments about whether a prisoner who was wrongfully convicted of a second crime and had his parole for a previous crime revoked could be compensated for the time served for that parole revocation. The Court also heard a case about how to plead tax liens as a defense.

For added details (and because I’m making this post a few days later than I’d like), I’m passing along the argument previews prepared by Osler McCarthy, the Court’s staff attorney for public information. Each case name is followed by a “DB” link to the docket page, collecting the underlying opinions, briefs, and other information.

Tuesday November 9, 2010

  1. Tyler Scoresby, M.D. v. Catarino Santillan, No. 09-0497 (DB)

    In this appeal from a trial court’s failure to dismiss a health-care liability suit, a principal issue is whether an expert report can be so deficient in addressing the elements of a claim that it constitutes no report at all, requiring dismissal instead of an extension to cure the defects. Santillan sued over alleged mistakes during surgery on a minor son’s nasal tumors that led to bleeding and his partial paralysis. Dr. Scoresby, an ear-nose-throat surgeon, moved to dismiss the claim because Santillan’s expert report, by a neurologist, did not establish a care standard, show how the standard was breached or how the breach caused the son’s injuries. The report also did not include the expert’s credentials. Instead of dismissing the suit, the trial granted a 30-day statutory extension to cure a deficient report. Scoresby appealed that ruling, arguing to the court of appeals, as he does in this Court, that the expert report amounted to no report at all, requiring dismissal. The appeals court dismissed the doctor’s interlocutory appeal, holding that an extension to cure a deficient report could not be reviewed.

  2. O. Lee Tawes III v. Doris Barnes, No. 10-0581 (DB) (certified question)

    In this suit over royalty payments, the ultimate issue is whether Tawes, one of several interest-holders in oil and gas production under Barnes’ land, owes Barnes any or all unpaid royalties she claims. Tawes was an investor in two wells on property adjacent to Barnes’ that tapped deposits under Barnes’ land under a pooling arrangement. Barnes’ lessee opted out of developing the wells, but a provision in the joint-operating and pooling agreements specified that interest-holders consenting to drilling the wells would be “responsible for … all royalty.” The first certified question asks whether Barnes can collect royalties under that provision in a contract signed by her lessee. Her theory is that she either is a third-party beneficiary of those agreements or has privity of estate because the company in which Tawes invested took over as operator from her lessee. The second certified question asks whether the working interest-unit agreement would prevent Barnes from recovering from Tawes because, under that agreement, the company in which Tawes invested was liable for Tawes’ obligations. The third certified question notes conflicting provisions within the joint-operating agreement and asks whether Tawes is responsible for all royalties owed Barnes or just royalties to the extent of his interest in the two wells.

  3. American Home Assurance Co. and Illinois National Insurance Co. v. Maryland Casualty Co., No. 09-0226 (DB) was set for argument on Tuesday but was dismissed pursuant to a settlement.

Wednesday November 10, 2010 (sitting in Amarillo)

  1. Genesis Tax Loan Services Inc., et al. v. Kody and Janet Kothmann, No. 09-0828 (DB)

    The issues in this case between competing liens is (1) whether the appeals court erred by holding that Genesis, which claims a tax-lien transfer on four properties, was required to plead its lien superiority as an affirmative defense and (2) whether the appeals court misconstrued Texas Tax Code section 32.06 by holding that Genesis failed to effect transfer of the tax liens. The Kothmanns sold four properties on an installment plan and filed deeds of trust against the properties. Two years later the buyer borrowed money from Genesis Tax Loan Services to pay taxes on the properties and Genesis secured the loan with tax-lien transfers. When the borrower defaulted, Genesis tried to foreclose. The Kothmanns then sued Genesis, arguing that their liens were superior because they filed theirs first, Genesis did not plead its tax-lien transfers in defense and did not comply with requirements to effect the transfers. The trial court declared Genesis’ liens were superior, but the court of appeals reversed, holding that Genesis had to plead its liens were superior as a defense and that the liens did not comply with statutory requirements.

  2. In re Billy James Smith, No. 10-0048 (DB)

    The issue is whether the state should compensate a prisoner for the prison time he served after his parole was revoked based on a wrongful conviction in addition to the time he served for the wrongful conviction. In this case the comptroller, which decides requests under the Wrongful Imprisonment Act, refused to pay Smith for time he spent in prison time finishing a sentence after his parole was revoked. The comptroller argues in part that the act provides plainly that a person “is not entitled to compensation … for any part of a sentence in prison during which the person was also serving a concurrent sentence” for a valid conviction. Smith argues that “in prison” modifies sentence and would not include parole and the Legislature passed the law to provide a remedy for wrongful convictions, not to penalize someone who would have been on parole and not in prison but for the wrongful conviction. The law should be interpreted broadly, Smith contends, to assure its remedial purpose.