The Texas Supreme Court will be hearing oral arguments in two cases on Wednesday and three cases on Thursday. Among the Wednesday arguments is the Edwards Aquifer water-rights dispute that could have significant implications for the ability of state government to regulate water use. The Thursday arguments will be held at UT Law School.

The quoted excerpts below are from the materials sent out by the Court’s public-information officer.

Wednesday arguments — in the Texas Supreme Court chamber

The Travelers Insurance Co. v. Barry Joachim, No. 08-0941 (docket and briefs)

Is an order of dismissal with prejudice for failure to prosecute the kind of final decision on the merits that can bar future lawsuits?

Travelers argues that dismissal of the first suit with prejudice, though otherwise improper, became a decision on the merits when Joachim failed to challenge it. Instead of challenging the order in the first suit, Joachim filed an identical claim in a second court. After the trial court initially denied Travelers’ summary-judgment motion, based on res judicata, another judge on reconsideration granted the motion. The court of appeals reversed, holding that dismissal of a case for want of prosecution was not a merits determination and could not be ordered with prejudice.

Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel, No. 08-0964 (docket and briefs)

What rights do landowners in a protected aquifer have to use the water beneath their property lines, when that is in tension with broader water-conservation policy?

Principal issues are (1) whether landowners within the Edwards Aquifer boundaries own the groundwater under their property and (2) whether water from an artesian well that flowed into a reservoir constituted water controlled by state regulations or by the Edwards Aquifer Authority. . . . The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was “state water” subject to state regulation.

Friday Arguments — at the courtroom of UT Law School

In re Columbia Valley Healthcare System, L.P., No. 08-0995 (docket and briefs)

When a legal assistant moves from one law firm to another, what cases does she disqualify her new firm from handling?

. . . attorneys for a hospital’s owners moved to disqualify the plaintiffs’ law firm because one of its legal assistants had been employed by the hospital’s lead counsel, responsible for filing privileged documents and handling investigative material and documents pertaining to strategy and settlement. . . . [at her new firm] she filed correspondence involving the malpractice case and did other work, including rescheduling a docket conference, handling correspondence and calls concerning it and copying the plaintiffs’ son’s birth certificate and Social Security records. The trial court denied the disqualification motion. The appeals court affirmed.

Michael T. Jelinek, M.D., and Columbia Rio Grande Healthcare, L.P. v. Francisco Casas and Alfredo DeLeon Jr., No. 08-1066 (docket and briefs)

Preserving error in a medical-malpractice case; the sufficiency of medical-expert reports at trial to show failure of due care and cauastion:

Casas amended the petition to claim suffering and mental distress because his wife, after bowel surgery for a perforated colon and with a known infection, did not get antibiotics for four days because the hospital did not automatically renew her prescription. . . . At trial, the hospital contends, it offered an “unavoidable accident” instruction that the court denied. But the instruction was not in the record. Jelinek, who prescribed the antibiotics but was on vacation when the prescription expired, argues that the expert report did not address how his deviation from the applicable care standard proximately caused Mrs. Casas’ suffering and mental distress. The appeals court affirmed a jury award for Casas . . .

State of Texas v. K.E.W., No. 09-0236 (docket and briefs)

How much proof of “likelihood of serious harm to others” is needed to support a finding of involuntary commitment?

The principal issue in this challenge to an involuntary commitment order was whether the appeals court correctly applied the clear-and-convincing standard to assess likelihood of serious harm to others. K.E.W., suffering schizophrenia and at times agitated, came to a mental-health clinic looking for a specific staff member whom he said he wanted to impregnate. Aliens implanted a computer chip in him, he explained, because he was chosen to populate a new human race. The trial court ordered him committed, but the appeals court held that his talk without more than agitation was not an overt act that was clear and convincing evidence of serious harm to himself or others. The state argues that the court of appeals only needed to find a scintilla of evidence to support the commitment order and not an elevated review standard.