The Supreme Court of Texas will hear oral argument in three cases on Tuesday, February 5, 2013 beginning at 9:00 am:
- 11-0494, Merriman v. XTO Energy Inc., involves the elements of the accomodation doctrine, which balances the rights of surface owners and mineral owners. This case is also a rarity because the petition for review was initially denied, but the Court granted the motion for rehearing and then granted review.
- 12-0183, Tucker v. Thomas, involves the propriety of an award of attorney's fees in a suit to modify, rather than enforce, a child-support order.
- 12-0357, CHCA Woman’s Hospital, L.P. v. Lidji, involves whether the voluntary nonsuit of a medical-malpractice suit tolls the plaintiff's deadline for serving an expert report.
See the Court's advisory below.
-- Rich Phillips, Thompson & Knight
For Tuesday, February 5, 2013
THREE ARGUMENTS SET TUESDAY
… Whether the accommodation doctrine requires the surface owner to prove no
alternative uses exist for his how land is used
… Whether attorney fees properly were charged against a spouse seeking modification
as necessities
… Whether a nonsuit tolls the deadline for a health care-liability expert
report
The Court will begin arguments at 9 a.m. in the Supreme Court Courtroom in Austin. Link for live video webcasts courtesy of TexasBarCLE.com.
11-0494
Homer Merriman v. XTO Energy Inc.
from Limestone County and the 10th District Court of Appeals, Waco
For petitioner: Wesley D. Lloyd, Waco
For respondent: Charles “Skip” Watson, Austin
In this dispute between a surface owner and the mineral-rights owner the issue is whether the accommodation doctrine requires the surface owner to prove he has no alternative for conducting his existing use of his property. In this case Merriman, a pharmacist who raised cattle in land he owned and leased, sued XTO for drilling on property he used to sort his cattle once a year and for grazing during the remainder. The trial court granted summary judgment for XTO and the court of appeals affirmed. Merriman argues that the appeals court’s holding that he did not prove he had no other reasonable or practical use for his land improperly adds an element to the accommodation doctrine.
Briefs
Court
of appeals opinion
12-0183
Rosscer Craig Tucker II v. Lizabeth Thomas
from Harris County and the 14th District Court of Appeals, Houston
For petitioner: Janice L. Berg, Houston
For respondent: Walter P. Mahoney Jr., Pasadena
The issues are (1) whether the trial court has authority to award attorney fees as “necessities” for child support when the nature of the action is modification and not enforcement and, if so, (2) whether awarding 6 percent compound interest on those fees abused the trial court’s discretion. Tucker sued his ex-wife, Thomas, to modify final orders to give him exclusive right to designate his children’s primary residence. In her counterclaim Thomas sought sole managing conservatorship and increased child support from Tucker. The trial court denied Tucker’s relief and Thomas’s request to be appointed joint managing conservator, but increased Tucker’s child support. The court awarded Thomas attorney fees as child support, finding the fees necessities benefiting the
children. The appeals court affirmed in a split decision by the whole court.
Briefs
Court
of appeals opinion
12-0357
CHCA Woman’s Hospital, L.P. v. Scott Lidji and Angela Lidji
from Harris County and the First District Court of Appeals, Houston
For petitioners: Kirsten M. Castañeda, Dallas
For respondents: Gaines West and Jennifer D. Jasper, College Station
A principal issue is whether dismissal by nonsuit of a health care-liability claim delays the statutory expert-report deadline. In this case the Lidjis, suing on their son’s behalf, nonsuited their claim 116 days after its filing (four days before the expert-report deadline). When they refilled the suit more than two years later, the Lidjis served an expert report on the same day. The Lidjis argue that their nonsuit tolls the deadline for the expert report. The hospital moved to dismiss, contending the deadline for the report passed. The trial court denied the hospital’s dismissal motion and the court of appeals affirmed.
Briefs
Court
of appeals opinion
NOTE: This advisory is for planning purposes only. 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.
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