This week at the Texas Supreme Court - 10/16/15

Posted by Rich PhillipsThis week, the Supreme Court of Texas heard argument in a total of nine cases over three days. You can watch the recorded arguments here.On Monday, October 12, the Court heard the following cases:No. 13-0977 Fischer v. CTMI LLC – The primary issue is whether a provision in an asset purchase agreement is an unenforceable agreement to agree. Petitioner contends that the provision cannot be carved out of the otherwise enforceable agreement and that partial performance of the agreement precludes a finding that the provision is unenforceable. No. 14-0186 TV Azteca S.A.B. de C.V. v. Trevino – This appeal arises from the denial of special appearances filed by a television producer, an anchor, and a broadcaster from Mexico. Petitioners argue that minimum contacts in Texas cannot be established by the fact that an over-the-air broadcast originating in Mexico on a Mexican television station could also be received in Texas. Respondents argue that the station intended to reach an audience in South Texas.No. 14-0593 Hebner v. Reddy – This healthcare-liability case addresses the expert-report requirement. The plaintiffs served an expert report with their presuit notice required by Chapter 74. When they filed suit and served expert report again, they claim that they inadvertently attached the wrong expert report. The trial court denied the defendants’ motion to dismiss and the court of appeals reversed. The issue is whether the presuit delivery of the correct report can excuse the failure to serve the correct report after suit was filed.On Tuesday, October 13, the Court heard the following cases:No. 13-0986 Southwestern Energy Production Co. v. Berry-Helfand – In this oil and gas case, the plaintiff asserts that the defendants conspired to steal her trade secrets. The primary issues on appeal are (1) whether the evidence supports the award of actual damages; (2) whether the plaintiff’s claim is barred by the statute of limitations; (3) whether the court of appeals correctly reversed the breach-of-contract damages; and (4) whether disgorgement is a proper remedy for misappropriation of trade secrets.No. 14-0086 Philadelphia Indem. Ins. Co. v. White – This is a landlord/tenant dispute arising from damages to the apartment complex allegedly caused by a clothes dryer owned by the tenant. The primary issue is whether the agreement between the tenant and the landlord that makes the tenant responsible for damage caused by a personal appliance is void under the Texas Property Code or Texas public policy. The respondent also asserts other grounds for finding the agreement unenforceable (such as lack of consideration, ambiguity, unconscionability, etc.).No. 14-0459 Houston Belt & Terminal Ry. Co. v. City of Houston – This case arises from a dispute about the City’s drainage utility ordinance. The issue is whether the petitioners have pleaded a viable ultra-vires claim such that the claims are not subject to governmental immunity. In the interest of full disclosure, I represent the petitioners in this case.On Wednesday, October 14, the Court heard the following cases:No. 14-0546 Apache Deepwater LLC v. McDaniel Partners Ltd. – This case arises from a dispute about production payments allegedly owed under an assignment of multiple oil and gas leases. The issue is what effect the expiration of some of the assigned leases has on the production payment. The petitioner asserts that the portion of the production payment attributable to the expired leases is no longer payable. The respondent argues that the payment is a fixed amount without a proportionate reduction clause (or other similar provision) and is therefore payable in full even if some leases have expired.No. 14-0572 Coyote Lake Ranch LLC v. City of Lubbock –  In this appeal arising from a dispute over groundwater, the issue is whether the accommodation doctrine (which requires the owner of the mineral estate to accommodate existing surface uses when possible) applies to a severed groundwater estate.No. 14-0591 The Staley Family Partnership Ltd. v. Stiles – Petitioner filed suit seeking a declaration that it has an implied right-of-way easement by necessity over the respondents’ property. The dispute centers on what the petitioner must prove to establish the implied easement by necessity. The parties dispute whether the petitioner must show that the easement would give access to a roadway.In its weekly order list this morning, the Court did not issue any opinions or grant review in any new cases.