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A cool front actually reached Houston this weekend, and it was a
reminder to look at the calendar.
Summer vacations are over and it is time to buckle down. The
Supreme Court of Texas has cinched up its tack and is saddling up
for a full schedule of arguments.
The court has already set arguments through December 2012. That
is early for the calendar to be so full.
Those arguments begin with two days of argument this week and
one day of argument next week. After the jump some previews
and useful links for what is on the court's plate.
The court has argument in eight cases this week, four each on
Wednesday and Thursday.
Wednesday's arguments are:
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT
DALLAS v. LARRY M. GENTILELLO, M.D.
A whistleblower case involving whether the Whistleblower Act
protects a department chair who reported alleged violations of
federal regulatory standards to his supervisor.
Because no slip and fall is complete without allegations of
spoliation, this case involves (1) whether the trial court erred by
admitting spoliation evidence based on the grocer's retention
of a security video that showed the plaintiff's slip and fall
and moments before and after but not more that might have borne on
constructive notice of a grease spill, (2) whether the trial court
generally erred by instructing the jury on spoliation (and
specifically by placing the burden of disproving prejudice on
Brookshire) and (3) whether legally sufficient evidence supported
the jury's negligence finding.
TEXAS DEPARTMENT OF TRANSPORTATION AND CITY OF EDINBURG
v. A.P.I. PIPE AND SUPPLY, L.L.C. AND PAISANO SERVICE CO.,
INC.
This case for the property and procedure wonks. Is an ostensible
innocent purchaser is charged with knowing that a judgment
conveying an easement to the city that intended to correct a
clerical mistake - a judgment nunc pro tunc - invalidly declared a
previous judgment null and void that gave the city fee simple title
to the disputed property.
IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND
C.G.L.
A case involving termination of parental rights, questioning (1)
whether legally sufficient evidence supported the "best
interest" standard for terminating deported Mexican
citizen's parental rights who continued support for his
children and visited them with help from relatives and (2) whether
legally sufficient evidence supported the endangerment standard
when that evidence was based in part on the father's conviction
for criminal activity with a minor a decade earlier.
FPL ENERGY, LLC, FPL ENERGY PECOS WIND I, L.P., FPL
ENERGY PECOS WIND II, L.P. AND INDIAN MESA WIND FARM, L.P. v. TXU
PORTFOLIO MANAGEMENT COMPANY, L.P. N/K/A LUMINANT ENERGY COMPANY,
LLC
Get your green energy on. The issue in this case is whether a
liquidated damages provision calculating damages based upon a
regulatory penalty and involving renewable energy credits was valid
or an unenforceable penalty.
KOPPLOW DEVELOPMENT, INC. v. THE CITY OF SAN
ANTONIO
An inverse condemnation/statutory condemnation case involving
(1) whether legally sufficient evidence supported the jury's
remainder-damages award - did the city's easement for a
flood-diversion wall cause the property owner's remaining
property to fall under a 100-year flood plain? (2) whether the
inverse-condemnation claim is ripe; and (3) whether damages based
on the city's condemnation for a storm water-control facility
on adjoining property were barred by the Campbell rule (266 U.S. at
372).
BYRON D. NEELY, INDIVIDUALLY AND BYRON D. NEELY, M.D.,
P.A. v. NANCI WILSON, CBS STATIONS GROUP OF TEXAS, L.P., D/B/A
KEYE-TV AND VIACOM, INC.
A libel case based on a television report of a Texas Medical
Board's order disciplining a physician involving whether Texas
recognizes the third party-allegation rule that would shield a
publisher from liability for defamation if its report about the
order is substantially true.
And because one can never have too many expert medical testimony
cases, this case involves whether a chiropractor's expert
testimony was improper to establish duty to inform.
As always, one can watch the arguments online, and this would be a
good week to do so. The court will have some able talent before it,
and I am particularly interested in the whistleblower argument, the
libel/free speech case as well as the liquidated damages issue.
Stay tuned for a preview of next week's arguments.
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A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
Keywords: Amgen v. Conn. Retirement Plans, Basic Inc. v. Levinson, Erica P. John Fund Inc. v. Halliburton Co., Fifth Circuit, fraud on the market, reliance, Supreme Court
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.
Procedural rules that govern lawsuits in federal court permit defendants to make an "offer of judgment," which is a mechanism allowing a defendant to offer to settle a lawsuit.
The Appellate Record Blog: Simply Impress Your Friends 
