25-05: A Bird of Bad Moral Character
A look back to the week of June 30, with help from our National Bird
Welcome back to 1910 & Beyond, your weekly briefing on the evolving landscape of appellate law in Houston and beyond. Each post highlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I’ll also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
For those who have already subscribed, thank you—and for those who haven’t yet, I hope you’ll consider joining us!
With both the Supreme Courts of the United States and Texas wrapping up their Terms last week—and a midweek holiday giving many a reason to look elsewhere—this was, mercifully, a slower docket. Still, the courts remained open for business,1 and I’ve got a few highlight’s worth your time. In honor of our Nation’s birthday, we’ll enjoy some flyover support from our National Bird—despite Benjamin Franklin’s famous gripe that the bald eagle is “a bird of bad moral character.”
1910
Orders and Opinions
But first, as always, we start locally in Houston. The First Court issued orders and opinions on June 30 and July 1, 2, and 3; while the Fourteenth Court did so on June 30 and July 1 and 3. Below, I highlight one opinion from each court that stood out, followed by a quick rundown of a few others worth noting.
Features
Liss v. Cushman & Wakefield of Texas Inc., No. 01-23-00481-CV (Rivas-Molloy, Guiney, Morgan, JJ.) (mem. op.): This case stems from a conflicted business deal gone sideways. After Cushman & Wakefield brokers negotiated the sale of a gun store to their own business partner—at a reduced price—and later joined the deal themselves as co-buyers, the individual sellers (the Jameses) and their LLC (Bay Area Shooter Center) sued C&W, the brokers, and their partner. The plaintiffs raised multiple claims, while C&W counterclaimed under the DTPA, alleging the plaintiffs’ claims under that statute were brought in bad faith.
The trial court granted summary judgment for the defendants on all claims. It later issued a take-nothing judgment on C&W’s counterclaim after a bench trial. All sides appealed.
In a lengthy opinion by Justice Guiney, the First Court affirmed in part and reversed in part:
Bay Area’s Capacity to Sue: Under Tax Code § 171.252, a corporate entity that forfeits its charter for nonpayment of taxes lacks capacity to sue. Because Bay Area’s charter had been forfeited at the time it filed suit, all its claims were barred. The Business Organizations Code’s survival statute didn’t apply, as the forfeiture arose under the Tax Code. Although the statute has since been amended to cover such forfeitures, the amendment applies only prospectively.
Jameses’ Claims Under the Listing Agreement: Claims tied to the C&W listing agreement—like breach of fiduciary duty, fraud, breach of contract, negligent misrepresentation, and DTPA violations—belonged solely to Bay Area, the contracting party. The Jameses lacked standing to assert these individually.
Jameses’ Claims Outside Listing Agreement: The Jameses may pursue claims—including for fraud and negligent misrepresentation—that arise independently of the listing agreement. Fact issues on these claims precluded summary judgment.
Unchallenged Claims: The defendants didn’t move for summary judgment on the Jameses’ claims for negligent hiring and supervision or civil conspiracy. The trial court erred by disposing of those claims anyway, contravening the well-settled rule that a court cannot grant summary judgment on grounds not raised in the motion.
C&W’s DTPA Counterclaim: The DTPA’s “large transaction” cap hinges on the consumer’s total consideration—not the overall deal size. The Jameses’ DTPA claim fell below the threshold. Likewise, exceptions to the DTPA’s broker exemption applied. The trial court therefore correctly rejected C&W’s bad-faith counterclaim.
N.B.: Liss draws a sharp line between claims that belong to the business entity and those that may be pursued individually by its stakeholders. A forfeited charter could strip the entity of the capacity to sue—even for claims that might otherwise have merit. And while individual owners may assert their own claims, they can’t piggyback on injuries suffered by the entity. For business-litigation practitioners, Liss is a reminder to scrutinize both standing and capacity from the outset—especially when clients are operating through an LLC or corporation. And on the defense side, it offers a clear roadmap for how to assess DTPA standing and bad faith—especially when the broker exemption and large-transaction cap are in play.
Evans v. MB Harbour, Ltd., No. 14-23-00011-CV (Jewell, Hart, Antú, JJ.) (mem. op.): After buying canal-side property, the Evanses sued to establish the right to build docks over a canal owned by MB Harbour and to invalidate a Canal Use License Agreement (CULA) signed by the prior owners. MB Harbour moved for summary judgment and prevailed. The trial court also awarded over $235,000 in attorneys’ fees.
In a majority opinion by Justice Antú, the Fourteenth Court affirmed:
No Special Exceptions Needed: A defendant generally must file file special exceptions before moving for summary judgment on a failure-to-state-a-claim theory. But MB Harbour didn’t move on that ground—even if it critiqued the Evanses’ pleading as murky—so the requirement didn’t apply.
Easement Claims Waived: In the trial court, a non-movant must challenge every ground supporting a summary judgment. But the Evanses failed to address one of MB Harbour’s grounds for summary judgment—despite MB Harbour flagging that omission in reply—as to their easement claims. That forfeited their appellate challenge to the trial court’s dismissal of those claims.
Binding Nature of CULA: A covenant runs with the land if: (1) it touches and concerns the land; (2) it relates to something in existence or binds successors; (3) it is intended to run with the land; and (4) the burdened party had notice. The court found all elements met, even if certain aspects of the agreement resembled a license:
The CULA imposed a continuing obligation to pay fees for dock use;
The dock was fixed to the canal bed;
The CULA stated it ran with the land;
The Evanses had notice: The CULA was recorded, and they initialed it at closing.
No Riparian-Rights Claim: Although riparian owners may build docks into navigable waters, the Evanses never pled riparian rights or raised them at summary judgment. They couldn’t do so for the first time on appeal.
Attorneys’ Fees Affirmed: The court rejected all of the Evanses’ fee-related challenges, including arguments based on privity, claim classification, segregation, and excluded expert testimony. Many were either waived or not preserved.
Justice Jewell concurred briefly to underscore a separate point: Riparian rights apply only to natural waterways. This canal was man-made, so no such rights could attach.
N.B.: Evans is a strong refresher on covenants that run with the land—and a cautionary tale on procedural missteps. Substantively, it clarifies that covenants retain force across ownership transfers—even when they resemble mere licenses—so long as all elements are met. And procedurally, the opinion reinforces that even potentially viable theories won’t survive without proper pleading and preservation.
In Brief
Five other opinions from the First and Fourteenth Courts caught my eye:
Lutkus v. Garcia, No. 01-24-00115-CV (1COA: Adams, C.J.; Gunn, Guiney, JJ.) (mem. op.): In this car-wreck case, the plaintiff’s expert offered more than conclusory testimony to support the jury’s causation finding. Sufficient evidence also supports the jury’s award for future physical pain. But not so for the award for future physical impairment, as the evidence showed no injury beyond mere pain. Same for future medical expenses, as the plaintiff’s expert’s testimony there was too speculative.
O’Heeron v. Nutty Brown Enterprises, L.P., No. 01-24-00867-CV (1COA: Adams, C.J.; Caughey, Johnson, JJ.) (mem. op.): A trial court may not grant postjudgment relief once its plenary power has expired. Any post-plenary order is a nullity—and so is any attempted appeal from it.
McMurphy v. Moran, No. 14-23-00543-CV (14COA: Christopher, C.J.; Wise, Boatman, JJ.) (mem. op.): A will gave the widow the right to buy the decedent’s personal interest in an LLC—not the interest held by a separate, though related, entity. The probate court also erred by dismissing other claims not challenged in the parties’ motions.
In re Rolyn Companies, Inc., No. 14-25-00262-CV (14COA: Wilson, Hart, Boatman, JJ.) (orig. proceeding) (op.): For mandamus purposes, waiver turns on delay in filing the petition—not delay in the trial court. Because the petition was timely, the relator wasn’t barred from seeking mandamus relief—even if it may have delayed in moving to compel an independent medical examination.
Temple v. State, No. 14-23-00290-CR (14COA: Jewell, Wise, JJ.) (op.)2: The current version of Code of Criminal Procedure art. 37.07, § 3(c)—which requires a mistrial only as to punishment and a new jury solely for punishment if the original jury deadlocks solely on that issue—doesn’t run afoul of ex post facto, the Texas Constitution’s retroactivity bar, or due process. And the State’s two-and-a-half-year delay in retrying the defendant—convicted of gruesomely murdering his wife—did not violate violate his constitutional right to a speedy trial under the applicable balancing test.
Arguments
1COA
The First Court heard no arguments last week. It currently has no other arguments scheduled.
14COA
The Fourteenth Court also heard no arguments last week. But later this week, one case is set for oral argument before Chief Justice Christopher, Justice Jewell, and Justice McLaughlin:
McCartney v. McCartney, No. 14-24-00310-CV: Whether the trial court’s final divorce decree violates the parties’ prenuptial agreement—and, regardless, whether the appellant’s alleged failure to comply with Texas Rule of Appellate Procedure 34.6(c)(1) (regarding a limited reporter’s record) mandates affirmance.
John Powell (The Powell Law Firm) represents the appellant, and Greg Enos (Enos Family Law) represents the appellee. Argument is scheduled for July 9 at 2 pm.
& Beyond
SCOTUS
The U.S. Supreme Court put a bow in its October 2024 Term through three sets of orders: one on June 30, one on July 1, and one on July 3. They included a few notable opinions, mostly relating to orders.
Opinions
The Justices issued a single per curiam opinion in Goldey v. Fields, No. 24-809. Summarily reversing the Fourth Circuit, the Court unanimously held that an inmate cannot bring a Bivens action for Eighth Amendment excessive-force violations.
A majority of the Court also granted the Government’s “motion for clarification”—as discussed in last week’s post—in Department of Homeland Security v. D.V.D., No. 24A1153:
Majority (per curiam): Because the Court stayed the original injunction, the district court can’t enforce it through a follow-on remedial order. (SCOTUSblog helpfully provides the order’s bottom-line effect: Eight aliens currently in U.S. custody in Djibouti may be deported immediately to South Sudan.)
Concurrence (Kagan, J.): Even though I disagreed with the original stay order, “a district court [can’t] compel compliance with an order that this Court has stayed.”
Dissent (Sotomayor, J., joined by Jackson, J.): This isn’t a “clarification” but a backdoor request for new relief—improperly bypassing lower courts—all to enable the Government to deport individuals who may face torture or death. “Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial.”
Finally, several Justices added thoughts on cases the Court declined to hear:
Black v. Tennessee, No. 24-6586 (Sotomayor, J., respecting denial of certiorari): Tennessee’s manslaughter instructions raise real constitutional concerns, which the Tennessee Supreme Court should address in the first instance.
Wiggins v. United States, No. 24-6410 (Sotomayor, J., joined by Barrett, J., respecting denial of certiorari): Now that the U.S. Sentencing Commission has a quorum, it should resolve the circuit split over the definition of “controlled substance offense” under Section 4B1.2(b) of the Federal Sentencing Guidelines.
GHP Management Corporation v. City of Los Angeles, No. 24-435 (Thomas, J., joined by Gorsuch, J., dissenting from denial of certiorari): The Court should have granted review to consider whether Los Angeles’ COVID-19 eviction moratorium for nonpayment of rent constitutes a physical taking under the Takings Clause.
McRae v. Mattos, No. 24-355 (Thomas, J., respecting denial of certiorari): A future case should confirm that “public employers cannot use Pickering-Garcetti balancing generally or unsupported claims of disruption in particular to target employees who express disfavored political views.”
Montana v. Planned Parenthood of Montana, No. 24-745 (Alito, J., joined by Thomas, J., respecting denial of certiorari): The denial shouldn’t be read as rejecting the idea that parents may have a fundamental right to be involved in their minor child’s medical decisions—including abortion.
Orders
In addition to GVR’ing3 several cases, the Court granted certiorari in a dozen cases touching a variety of topics:
M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209 (D.C. Circuit): Whether 29 U.S.C. § 1391’s instruction to compute withdrawal liability “as of the end of the plan year” requires the plan to base the computation on the actuarial assumptions most recently adopted before the end of the year, or allows the plan to use different actuarial assumptions that were adopted after, but based on information available as of, the end of the year.
Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (Fourth Circuit): (1) Whether a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and (2) whether mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c).
FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., No. 24-345 (Second Circuit): Whether Section 47(b) of the Investment Company Act creates an implied private right of action.
Urias-Orellana v. Bondi, No. 24-777 (First Circuit): Whether federal courts of appeals should apply de novo review—or deferential “substantial evidence” review—to the Board of Immigration Appeals’ judgment that a particular set of facts rise to the level of “persecution” under the Immigration and Nationality Act.
Enbridge Energy, LP v. Nessel, No. 24-783 (Sixth Circuit): Whether district courts have the authority to excuse the thirty-day procedural time limit for removal under 28 U.S.C. § 1446(b)(1).
Rico v. United States, No. 24-621 (Ninth Circuit): Whether the fugitive-tolling doctrine applies in the context of supervised release.
National Republican Senatorial Committee v. Federal Election Commission, No. 24-621 (Sixth Circuit): Whether the federal statute that limits the amount of money that a political party may spend on an election campaign in coordination with a candidate, 52 U.S.C. § 30116(d), violates the First Amendment. (Relatedly, whether the Court should clarify the limited reach of—or outright overrule—FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II).)4
Little v. Hecox, No. 24-38 (Ninth Circuit): Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the Equal Protection Clause.
West Virginia v. B.P.J., No. 24-43 (Fourth Circuit): (1) Whether Whether Title IX prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the Equal Protection Clause prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
Olivier v. Brandon, No. 24-993 (Fifth Circuit)5: (1) Whether Heck v. Humprhey bars claims under 42 U.S.C. § 1983 seeking purely prospective relief where the plaintiff has been punished before under the law challenged as unconstitutional; and (2) whether Heck bars Section 1983 claims by plaintiffs even where they never had access to federal habeas relief.
Galette v. NJ Transit Corp. & NJ Transit Corp. v. Colt, Nos. 24-1021 & 1113 (Pa.): Whether the New Jersey Transit Corporation is an arm of the State of New Jersey for interstate sovereign immunity purposes.
The Justices also called for the views of the Solicitor General in three cases:
Havana Docks Corp. v. Royal Caribbean Cruises, No. 24-983 (Eleventh Circuit): Under Title III of the LIBERTAD Act, whether a plaintiff must prove that the defendant trafficked in property confiscated by the Cuban government as to which the plaintiff owns a claim—or instead that the defendant trafficked in property that the plaintiff would have continued to own at the time of trafficking in a counterfactual world "as if there had been no expropriation."
Parker-Hannifin Corp. v. Johnson, No. 24-1030 (Sixth Circuit): In pleading an imprudent-investment claim under ERISA, whether a plaintiff must provide allegations showing that their chosen performance benchmark is a reliable comparator.
Monsanto Co. v. Durnell, No. 24-1068 (Mo. App.): Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the Environmental Protection Agency says the warning isn’t required—and can’t be added without EPA approval.
SCOTX
A quiet week at the Texas Supreme Court. With the July 4 holiday, there was no Friday orders list. The only action came via a single miscellaneous order on June 30, granting an emergency stay in an original proceeding challenging a turnover order.
In the meantime, check out Daniel Rankin’s latest post at Texas Legal Roundup—a great Substack also covering Texas appellate litigation. His summary of statistics from from the Court’s 2024 Term includes especially helpful numbers on timing and reversal rates. A solid resource when advising clients on the odds—and pace—of Supreme Court review. Well worth a read.
Other
The Fifth Circuit stayed busy this week—with notable opinions across a range of constitutional, statutory, and procedural issues, including a high-profile immigration decision in United States v. Texas.
Opinions
United States v. Kimble, No. 23-50874 (Smith, Duncan, Graves, JJ.):
Majority (Smith, J., joined by Duncan, J.): Title 18 U.S.C. § 922(g)(1)—which bars felons from possessing firearms—does not violate the Second Amendment as applied to felons convicted of drug-trafficking offenses. Although the Government’s historical analogues are not sufficiently similar to today’s drug-trafficking laws, class-wide disarmament of felons convicted of drug trafficking is consistent with the historical tradition of disarming dangerous individuals.
Concurrence in Part and in the Judgment (Graves, J.): The statute is constitutional as applied to this defendant, but the majority errs in applying a categorical rule to all drug-trafficking felons. The Second Amendment analysis must be individualized.
TitleMax of Texas, Inc. v. City of Dallas, No. 21-11170 (Wiener, Richman, Willett, JJ.):
Majority (Richman, J., joined by Wiener, J.): The district court erred in applying the wrong standard for injunctive relief. But even under the correct one, the district court properly denied a preliminary injunction. The City’s ordinance regulating short-term lenders isn’t preempted by state law, as it does not prohibit short-term lenders from operating at all; it merely regulates their business model. Nor does the ordinance violate the Texas Constitution’s Due Course of Law Clause.
Dissent (Willett, J.): Although there’s no due-course violation, the plaintiff made a sufficient prima facie showing of preemption. Contrary to the majority’s holding, the ordinance effectively prohibits short-term lenders from operating.
Reed v. Marshall, No. 24-20198 (Smith, Graves, Duncan, JJ.):
Majority (Graves, J., for unanimous Court): The Lanham Act doesn’t authorize claims between co-owners of a trademark.
Frias v. Hernandez, No. 24-10369 (Jones, Oldham, JJ.; Hendrix, D.J.):
Majority (Jones, J., for unanimous Court): A detective is entitled to state-law immunity for torts committed within the scope of his employment—investigating crimes—even if he violated department policy and acted to benefit his private employer. The “scope” test is objective; the individual’s subjective motives are irrelevant.
Concurrence (Oldham, J.): The Court should revisit its precedent holding that the collateral-order doctrine doesn’t apply to denials of state-law immunities.
United States v. Texas, No. 24-50149 (Richman, Oldham, Ramirez, JJ.):
Majority (Richman, J., joined by Ramirez, J.): The district court properly enjoined Texas’s S.B. 4, which creates new state crimes for unlawful entry into Texas from a foreign country and authorizes state judges to issue removal orders.
Standing: A nonprofit organization had standing. It showed that S.B. 4 would divert resources, impede its operations, and impair its ability to represent clients.
Justiciability: The case doesn’t present a nonjusticiable political question. Evaluating preemption and the Texas State War Clause are familiar judicial questions of constitutional interpretation.
Equitable Cause of Action: A plaintiff may rely on Ex parte Young to overcome state sovereign immunity, even when the challenged law will not be enforced directly against the plaintiff. And a plaintiff may sue in equity to enjoin state laws that are preempted under the Supremacy Clause.
Preemption: S.B. 4 is field preempted under Arizona v. United States, which held that the federal government has exclusive authority over immigration enforcement. And for similar reasons, certain provisions also are conflict preempted.
Remaining Preliminary-Injunction Factors: The nonprofit has shown irreparable harm, and the equities favor an injunction.
Dissent (Oldham, J.): Every conclusion by the majority is wrong.
Standing: The Supreme Court’s recent decision in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), forecloses the nonprofit’s theory for standing. The majority’s contrary holding effectively creates universal standing to challenge unconstitutional laws. (And, by the way, El Paso County’s theory for standing fares no better.)
Justiciability: Courts can’t second-guess a Governor’s declaration of an invasion, which might create a nonjusticiability problem. But since the plaintiffs clearly lack standing, I don’t need to address this additional jurisdictional problem.
Equitable Cause of Action: A plaintiff can’t obtain injunctive relief under Ex parte Young merely by asserting indirect economic injuries from government action.
Preemption: S.B. 4 is not field preempted when other federal statutes authorize States’ participation in immigration enforcement, and the majority’s contrary opinion wildly extends Arizona. Nor is S.B. 4 conflict preempted, considering that it “shares [the] exact same purpose” as the Immigration and Nationality Act: “to prohibit illegal immigration.” And, in any event, the global injunction is overbroad, considering that there are constitutional applications of the law.
Remaining Preliminary-Injunction Factors: The plaintiffs can’t show an irreparable injury. And the balance of equities and public interest favors Texas.
Arguments
As previewed last week, Judges Southwick, Oldham, and Ramirez heard argument on June 30 in W.M.M. v. Trump, No. 25-10534—a high-profile challenge to President Trump’s invocation of the Alien Enemies Act to deport members of the Venezuelan criminal gang Tren de Aragua (TdA). The Supreme Court remanded the case with instructions for the Fifth Circuit to address two questions: (1) whether the AEA authorizes the individuals’ removal; and (2) what notice (if any) is due to those plaintiffs before removal.
Unsurprisingly, the hour-long argument focused almost entirely on the first question. Judge Oldham’s sharp questioning—directed at both sides—seemed to signal his view that the case was nonjusticiable. Judge Southwick appeared more open to resolving the case on the merits, while still acknowledging the deference owed to the President’s determination. Judge Ramirez, meanwhile, asked relatively few questions. Although one never wants to read too much into oral argument, the panel’s questioning hinted at a potential split—if not in result, then at least in reasoning.
The same panel will hear arguments in several additional cases this week: one virtual argument on July 8, and four in-person arguments on July 9 and 10.
Separately, Judges Dennis, Oldham, and Douglas will hear argument in a single civil case on July 10.
Red Light
That wraps this week’s edition of 1910 & Beyond. I’ll be taking a short break from posting to focus on another writing project: an article for the upcoming Civil Appellate Practice 101 course on comparing and contrasting federal and state appeals. (If you’re new to Texas appellate practice or looking for a refresher, the 101 course is a fantastic entry point. I took the course shortly after moving from the U.S. Attorney’s Office to private practice, and it remains one of the most useful CLEs I’ve ever attended.)
In the meantime, I’d love your feedback on 1910 & Beyond. Whether in the comments or by email, please let me know what’s working—and what’s not. I welcome suggestions, topic ideas and tips on interesting cases from all readers.
Thank you to the growing number of readers who have subscribed—I genuinelyappreciate your support. And if you haven’t yet subscribed, I hope you’ll consider joining—especially at the unbeatable price of free. If there’s someone in your orbit who might enjoy this kind of content, I hope you’ll pass it along.
Until next time, have a great week—and spare a kind thought for our national bird “of bad moral character.”
Compare Trump v. CASA, Inc., 606 U.S. ___ (2025) (Kavanaugh, J., concurring) (“By law, federal courts are open and can receive and review applications for relief 24/7/365.”); with A.A.R.P. v. Trump, 137 F.4th 391, 394 (5th Cir. 2025) (Ho, J., concurring) (“We seem to have forgotten that this is a district court—not a Denny’s.”).
Justice Hassan participated in oral argument, but her term of office ended on December 31, 2024. Under Texas Rule of Appellate Procedure 41.1(b), the two remaining Justices may decide the case so long as they agree.
“GVR” stands for “grant, vacate, remand.” It refers to the Supreme Court’s practice of summarily granting certiorari, vacating the lower court’s judgment, and remanding the case for reconsideration in light of a related decision issued by the Court. This often happens when the petition was held pending resolution of another case addressing similar issues.
In addition to appointing Roman Martinez (Latham & Watkins) to defend the judgment below, the Court also granted Democratic National Committee’s motion to intervene.
Judge Douglas authored the Fifth Circuit’s unpublished panel decision, joined by Judges Wiener and Graves. The en banc Court denied a sua sponte call for en banc rehearing by a closely divided vote of 9 to 8. (Deny: Stewart, Southwick, Haynes, Graves, Higginson, Englehardt, Wilson, Douglas, Ramirez, JJ. Grant: Elrod, C.J.; Jones, Smith, Richman, Willett, Ho, Duncan, Oldham, JJ.) Three judges authored dissentals: Judge Richman, Judge Ho (joined by Chief Judge Elrod and Judges Smith, Willett, Duncan, and Oldham), and Judge Oldham (joined by Chief Judge Elrod and Judges Jones, Smith, Richman, Willett, Ho, and Duncan).