25-10: With a Little Help from My Friends
A look back to the weeks of September 29 and October 6, with help from Joe Cocker's iconic cover songs
Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights 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 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.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
![Joe Cocker – With A Little Help From My Friends – Reel-To-Reel (7 ½ ips, ¼" + 3 more), [r6599300] | Discogs](https://substackcdn.com/image/fetch/$s_!skJB!,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2Fb2f76e86-cd10-4c8a-a8ac-d83223aefdcc_600x600.jpeg "Joe Cocker – With A Little Help From My Friends – Reel-To-Reel (7 ½ ips, ¼\" + 3 more), [r6599300] | Discogs")
A couple of posts back, I wrote about how I expected 1910 & Beyond to get even better with the enthusiastic support of my new law firm, Hicks Johnson. To borrow a line from Joe Cocker (or, more accurately, The Beatles), I’m bringing in “a little help from my new friends.” Special thanks to Kate Ring, a senior counsel in our appellate group, for her invaluable—and not-so-little!—assistance on this post. I’m excited to keep collaborating with her and my other talented colleagues to raise the bar on future content.
And now, “lend me your ears and I’ll sing you a song” . . . in the form of an appellate update—seasoned with some of Joe Cocker’s greatest covers for good measure.
1910
Orders and Opinions
As always, we start with our local courts here in Houston. After a relatively quiet September, the First and Fourteenth Courts have picked up the pace of opinions. Below, I highlight one notable opinion from each court, followed by brief summaries of others worth noting.
Features
Houston Distributing Company v. Benson, No. 01-23-00879-CV (Adams, C.J.; Morgan, Dokupil, JJ.): Benson sued HDC for injuries from a collision involving an HDC truck, alleging negligent entrustment of a defective vehicle—specifically, a truck with a worn steer‑tire tread. A non‑unanimous jury found HDC liable and awarded $300,000 in damages. HDC appealed, arguing insufficient evidence that the worn tire proximately caused the accident.
Heavily citing the Texas Supreme Court’s recent opinion in Werner Enterprises, Inc. v. Blake, the First Court reversed and rendered a take‑nothing judgment. While testimony suggested that low tread might affect stopping ability, there was no proof the tire’s condition was a substantial factor in causing the collision. At most, it furnished a condition making the accident possible—insufficient to establish proximate causation under Texas law.
N.B.: In the wake of Werner Enterprises, expect Texas courts to scrutinize proximate causation more closely. A defect that merely creates a condition for harm—without proof it was a substantial factor—cannot support liability. (Or perhaps: “You can leave your hat on” . . . but you can’t leave proximate cause to speculation.)
Atlas Oil Co. v. Donovan, No. 14-25-00633-CV (Christopher, C.J.; Wise, Jewell, JJ.): In an executive‑compensation dispute brought by Atlas Oil, Donovan counterclaimed for fraudulent inducement, fraud by nondisclosure, and negligent misrepresentation after leaving Colonial Pipeline for Atlas Oil—giving up a six‑figure bonus and incurring relocation costs. Atlas moved for summary judgment on Donovan’s counterclaims, arguing his damages were barred by at‑will employment principles. The trial court denied the motion but granted Atlas’s request for a permissive appeal under Civil Practice and Remedies Code § 51.014(d).
The Fourteenth Court denied the petition for permission to appeal. Even if Donovan’s claim for the forfeited bonus failed, his relocation‑expense claim would remain, and Atlas’s own contract claims were still pending. Because an immediate appeal would not materially advance the litigation’s termination, the permissive appeal flunked the second requirement of Section 51.014(d).
N.B.: Appellate courts won’t rubber‑stamp permissive appeals under Section 51.014(d). Even dispositive questions won’t justify interlocutory review if other claims remain.(Or perhaps: “Don’t let me be misunderstood”—Section 51.014(d) means what it says.)
In Brief
1COA
De La Rosa v. Miracle Farm, Inc., No. 01-23-00579-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): The First Court affirmed in part and reversed in part a judgment dismissing fraud-related claims stemming from a wrongful-death settlement. It held that res judicata barred the De La Rosas’ fraud claim against Robert Avery because they could have raised fraudulent-inducement allegations in their original suit, where Avery requested a declaration that the settlement was binding and conclusive. It also upheld dismissal of other claims under Rule 91a under Miracle Farm, holding (among other reasons) that the De La Rosas could not show any harm from Miracle Farm’s filing of their motion past the 60-day deadline. But it reinstated one claim, finding that the De La Rosas’ allegations were not “unbelievable” under Rule 91a.
In re Lauren, No. 01-24-00742-CV (Guerra, Guiney, Johnson, JJ.) (orig. proceeding): Granting mandamus relief, the First Court directed the trial court to vacate its order granting a new trial without specifying reasons. Under Columbia Medical Center, trial courts must clearly identify and state reasonably specific grounds for setting aside a jury verdict. Broad statements or silence, as in the order here, are insufficient. The First Court instructed the trial court to enter a new order that specified its reasons for a new trial.
JB Smooth Trucking Company v. Manning, No. 01-23-00610-CV (Adams, C.J.; Caughey, Johnson, JJ.): Affirming denial of a bill of review challenging a nearly $1 million default judgment, the First Court held that the appellants waived their complaints about inadequate notice of the evidentiary hearing by participating without objection. It also found that the appellants, by failing to present any evidence, failed to meet their burden to prove non-service of an amended petition seeking increased damages. Procedural defects alone did not establish lack of service.
Greger v. Nobile, No. 01-25-00373-CV (Rivas-Molloy, J.) (order): The First Court denied a receiver’s motion to dismiss an appeal over a fee-award order based on lack of subject-matter jurisdiction. Assuming the appeal was indeed an accelerated one, the appellant provided a reasonable explanation (believing this was an “ordinary” appeal), allowing an extension of time under Texas Rule of Appellate Procedure 26.3. And the appellant—an ex-husband affected by the fee-award order—has standing to challenge the order.
14COA
Parikh v. Fields, No. 14-24-00234 (Jewell, Wilson, McLaughlin, JJ.): In a boundary-dispute and related TCPA fight, the Fourteenth Court reversed the dismissal of Parikh’s fraud and conspiracy claims under the TCPA, holding that those claims fell within the statute’s common-law-fraud exemption. But it affirmed an adverse-possession judgment in favor of Fields, largely based on Parikh’s failure to provide a reporter’s record—thus leading to the presumption that the omitted record supported the judgment.
Chopra v. Mantzoros, No. 14-24-00510-CV (Bridges, Boatman, Antú, JJ.): Affirming judgment in a guaranty dispute, the Fourteenth Court held that the trial court properly granted summary judgment to Mantzoros, who conclusively proved his right to recover under Chopra’s guaranty after paying off a promissory note, stepping into the lender’s shoes. Chopra’s defenses—including lack of demand, extinguishment of liability after payoff, and fraudulent inducement—failed for lack of evidence. The court also affirmed summary judgment on Chopra’s counterclaims for fraud, breach of contract, and breach of fiduciary duty, finding his declarations conclusory. On cross-appeal, the court upheld the trial court’s interpretation limiting Chopra’s total liability to $250,000 under the guaranty’s express terms.
In re Texas Central Railroad & Infrastructure, Inc., No. 14-25-00682-CV (Christopher, C.J.; Bridges, Antú, JJ.) (orig. proceeding): Granting mandamus relief, the Fourteenth Court held void a district court’s TRO that barred Texas Central from evicting occupants of properties purchased for a high-speed rail project. Exclusive jurisdiction over forcible-detainer actions—which the plaintiffs raised here—lies with justice courts, not district courts. As a result, the district court lacked subject-matter jurisdiction to enter the TRO, which must be vacated. The proper jurisdiction for the plaintiffs’ dispute was the justice courts.
In re Williams, No. 14-25-00854-CV (Wilson, Hart, Boatman, JJ.) (orig. proceeding): The Fourteenth Court denied mandamus relief from an order granting the Houston Housing Authority’s application for a temporary injunction. Mandamus is unavailable when an adequate remedy by appeal exists, and Texas law expressly authorizes an interlocutory appeal from a temporary-injunction order under Civil Practice and Remedies Code § 51.014(a)(4). The relator’s failure to pursue that remedy foreclosed mandamus relief.
Arguments
On top of these opinions, the First and Fourteenth Courts have kept a steady rhythm of oral arguments.
1COA
Austin v. Extruded Aluminum Corp., No. 01-24-00435-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Did the trial court properly grant the special appearance of a foreign company who sold parts for use in Texas?
Appellant: Lauren Harbour (Durham, Pittard & Spalding)
Appellee: Neal Hoffman (Taylor Twining)
Sharma v. Lin, No. 01-24-00730-CV (Guerra, Guiney, Johnson, JJ.): In a manuscript dispute between two physicians, did the trial court properly deny the defendant’s motion to dismiss under Section 101.106(f) of the Texas Tort Claims Act?
Appellant: Michael Patterson-Delgadillo (Office of Attorney General)
Appellee: Jacob Hadjis (Holland & Knight)
Argument: October 16 at 1:30 pm
Li v. TGS-NOPEC Geophysical Co., No. 01-24-00087-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Did the trial court properly refuse a jury instruction on pretext, and does sufficient evidence supports the jury’s findings in an employment-discrimination lawsuit?
Appellant: R. Scott Poerschke, Jr. (The Poerschke Law Firm)
Appellee: Jessica Mason (Foley & Lardner)
Argument: October 21 at 1:30 pm
City of Houston v. De La Cruz, No. 01-24-00797-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Did the trial court properly deny the City of Houston’s motion to dismiss based on limitations—and is there appellate jurisdiction over the appeal in the first instance?
Appellant: Robert Higgason (City of Houston)
Appellee: Jeremy Masten (Masten Law Firm)
Argument: October 21 at 1:30 pm
14COA
Houston Classical, Inc. v. Richards, No. 14-24-00696-CV (Bridges, Boatman, Antú, JJ.): Did the trial court properly deny an open-enrollment charter school’s plea to the jurisdiction under Section 261.110 of the Texas Family Code?
Appellant: Christopher Schulz (Schulman, Lopez, Hoffer & Adelstein)
Appellee: Charles Sturm (Sturm Law)
Argument: October 16 at 2 pm
Rosenberger v. Walden Pond Owners Association, No. 14-24-00783-CV (Jewell, Bridges, Antú, JJ.): Among other issues arising from a trial, does sufficient evidence support the jury’s findings in favor of a homeowner’s association—including its rejection of the homeowner’s contractual-estoppel defense?
Appellant: David McDougald (The Kim Law Firm)
Appellee: Sean Reagan (The Porter Law Firm)
Argument: October 16 at 2 pm
Patriot Contracting, LLC v. HERC Solutions USA, LLC, No. 14-24-00395-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.): Among other issues arising from a complex trial involving a construction dispute, whether sufficient evidence supports the jury’s findings and whether a new trial is required based on incurable jury arguments.
Appellants: Razvan Ungureanu & Larry Veselka (Steptoe); Dale Wainwright & Justin Bernstein (Greenberg Traurig); David Keltner (Kelly Hart & Hallman)
Appellees: Emily Adler (AZA); Richard Edelman (Office of Richard Edelman )
Argument: October 21 at 2 pm
Dyer v. Sanchez, No. 14-24-00572-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.): Among other issues, did the trial court properly grant summary judgment in a property dispute based on the bona-fide-purchaser defense?
Appellant: Holly Crampton (Law Office of Holly Crampton)
Appellee: Jonathan Cunningham (Fidelity National Law Group)
Argument: October 21 at 2 pm
Hall v. State, 14-24-00632-CR (Wilson, Hart, McLaughlin, JJ.): Among other issues in a murder trial, did the trial court abuse its discretion in excluding evidence related to a self-defense claim, and did the court erred in refusing certain jury instructions?
Appellant: Stanley Schneider (Schneider & McKinney)
Appellee: Heather Hudson (Harris County District Attorney’s Office)
Argument: October 23 at 2 pm
Hatteras Evergreen Private Equity Fund, LLC v. Longboat Capital LLC, No. 14-24-00398-CV (Wilson, Hart, McLaughlin, JJ.): Did the trial court properly deny a motion to dismiss under the Texas Citizen’s Protection Act, finding that the TCPA did not apply to the petition?
Appellant: Craig Dillard (Nelson Mullins Riley Scarborough)
Appellee: Ronald Oran (Foley & Lardner)
Argument: October 23 at 2 pm
& Beyond
Beyond Houston’s courthouses, the appellate stage gets bigger—and louder. From Washington to Austin to New Orleans (and now the Fifteenth Court), the past two weeks have delivered a mix of headline rulings, emergency orders, and en banc encores.
SCOTUS
October Term 2025 at the Supreme Court of the United States is officially underway.
Emergency Docket
Although it’s far too early for merits opinions, the Court’s emergency (or interim?) docket remains active. One stay application—again from the Trump Administration—drew a written opinion from Justice Jackson.
Noem v. National TPS Alliance, No. 25A326: Should the Court stay the district court’s order barring DHS from terminating part of the Temporary Protected Status (TPS) designations for Venezuelan nationals?
Majority (per curiam): Stay granted pending Ninth Circuit appeal and any cert. petition. The Court noted that “[a]lthough the posture of the case has changed, the parties’ legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.”
Dissent (Jackson, J.): The issue in this stay application is “whether the Government’s interest in terminating TPS right now is so urgent that this Court,
rather than the able judges currently exercising jurisdiction over the matter, should be the one to decide those individuals’ interim fate. . . . Only if the Government demonstrates such a time-sensitive need should we even consider vetoing the lower courts’ unanimous judgment about the most equitable interim status.” Because the Government can’t make that showing, a stay is inappropriate. This decision is “yet another grave misuse of our emergency docket.”
Though not joining Justice Jackson’s opinion, Justices Sotomayor and Kagan also would deny the application.
The Court also issued several other orders from applications on its emergency docket:
Jones v. Florida, No. 25A356 (per curiam): Denying stay of execution and cert. petition.
Castro v. Guevara, No. 25A376 (Alito, J.): Staying Fifth Circuit mandate requiring a seven-year-old girl in Dallas to return to Venezuela, and ordering response.
Google LLC v. Epic Games, Inc., No. 25A354 (per curiam): Denying Google’s request for a partial stay of a permanent injunction requiring Play Store policy changes to allow alternative payment systems.
Hamm v. Sockwell, No. 24-1068 (per curiam): Denying stay of Eleventh Circuit’s mandate directing habeas relief in a capital case, without prejudice to reapply if a trial is imminent.
But the most notable order came in Trump v. Cook, No. 25A312. There, the Trump Administration sought a stay of the district court’s order preventing President Trump from immediately removing a Federal Reserve Board member for cause. In a per curiam order, the Court deferred ruling and instead instructed the Clerk to set a briefing schedule for amici curiae and oral argument in January 2026.
Orders
With the Court back in session, the “regular” orders have returned. The Justices held their “Long Conference” on September 29, producing the customary massive orders list the following week—mostly denials of certioari. petitions.
But not all orders were denials. The Court granted certiorari in several cases:
Exxon Mobil Corp. v. Corporacion Cimex, No. 24-699: Does the Helms‑Burton Act abrogate foreign sovereign immunity in suits against Cuban instrumentalities, or must parties also satisfy an exception under the Foreign Sovereign Immunities Act?
Havana Docks Corporation v. Royal Caribbean Cruises, Ltd., No. 24-983: Must a Title III LIBERTAD Act plaintiff prove the defendant trafficked in property confiscated by the Cuban government that the plaintiff owns a claim to—or prove the defendant trafficked in property the plaintiff would have continued to own “as if there had been no expropriation”?
Montgomery v. Caribe Transport II, LLC, No. 24-1238: Does 49 U.S.C. § 14501 preempt state‑law negligent‑selection claims against freight brokers?
Wolford v. Lopez, No. 24-1046: Did the Ninth Circuit err in upholding Hawaii’s presumptive ban on concealed carry of handguns on private property open to the public unless the property owner affirmatively gives permission?
Hunter v. United States, No. 24-1063: Are the only permissible exceptions to a general appeal waiver claims for ineffective assistance of counsel or sentences exceeding the statutory maximum? And does an appeal waiver apply when the sentencing judge advises the defendant of a right to appeal and the Government does not object?
Pung v. Isabella County, No. 25-95: Does taking and selling a home to satisfy a government debt—and keeping the surplus value—violate the Takings Clause when compensation is based on a depressed auction price rather than fair market value? And does forfeiture of property worth far more than the debt constitute an excessive fine under the Eighth Amendment?
Finally, the Court called for the views of the Solicitor General in Kingdom of Spain v. Blasket Renewable Investments LLC, No. 24-1130. The questions presented in the Spain petition are: (1) Whether 28 U.S.C. § 1605(a)(6) allows U.S. courts to assert jurisdiction over a foreign sovereign without determining whether that sovereign consented to arbitrate; and (2) Whether, in suits to confirm foreign arbitral awards, forum non conveniens dismissal is categorically unavailable, unavailable in some suits, or fact‑dependent.
Arguments
The Court also completed another set of arguments this week:
October 14
Bowe v. United States, No. 24-5438: Does 28 U.S.C. § 2244(b)(1) apply to claims in a second or successive motion to vacate under Section 2255? And does Section 2244(b)(3)(E) deprive the Court of certiorari jurisdiction over a court of appeals’ authorization to file such a motion?
Ellingburg v. United States, No. 24-482: Is criminal restitution under the Mandatory Victim Restitution Act penal under the Ex Post Facto Clause?1
October 15
Case v. Montana, No. 24-624: May law enforcement enter a home without a warrant based on less than probable cause that an emergency is occurring, or does the emergency‑aid exception require probable cause?
Louisiana v. Callais, No. 24-109 (reargument): Does Louisiana’s intentional creation of a second majority‑minority congressional district violate the Fourteenth or Fifteenth Amendments?
SCOTX
Back in Austin, the Supreme Court of Texas is striking its own chord.
Opinions
The Court opened the 2025–26 Term with its first merits opinion—a per curiam summary reversal:
Kuo v. Regions Bank, No. 24-1039 (reversing Fifth Court) (no oral argument): The court of appeals erred by refusing to reach the merits of three evidentiary challenges, instead ruling sua sponte that they were unpreserved because certain summary-judgment exhibits were not physically attached to the Bank’s motion. Rule 166a requires only that evidence be “on file” at the time of the hearing—not attached to the motion. Both sides agreed the documents were in the record and considered by the trial court. Rather than declaring forfeiture, the court of appeals should have sought clarification or reviewed the on-file evidence. The Court reversed and remanded for the Fifth Court to address the merits of the issues.
Meanwhile, Justice Young—this time joined by Justice Sullivan—continued his prolific streak of separate orders-related opinions:
In re Marshall, No. 24-1010 & In re Hunter, No. 25-0057 (Young & Sullivan, JJ., dissenting from denial of mandamus petitions): The Court missed a critical opportunity to clarify a critical unresolved question: “Does attorney immunity provide immunity from suit or only from liability?” The Justices emphasized why the issue warranted review:
We do not regularly see so many simultaneous hallmarks of what merits the Court’s attention: a fight about the loss of a substantive right; the precedents of this Court that support each competing faction; the inconsistency among the courts of appeals; and (to top it all off) an Erie guess from the Fifth Circuit, which all factions both defend and attack and which reflects a now-settled legal practice in the federal courts applying Texas law despite disarray in the lower Texas courts about the same legal practice.
If the Fifth Circuit’s guess is correct—attorney immunity is a true immunity from suit—then erroneous denial of immunity cannot await appeal because it destroys the right to avoid litigation, making mandamus the proper vehicle. Regardless, the Court likely won’t get a better opportunity than this case, one in which all parties are “ably represented by high-quality counsel,” to resolve the issue.
Orders
As usual, the Court’s Friday orders lists were dominated by denials of petitions for review and writs of mandamus. But one miscellaneous order stood out:
Apollo Companies, Inc. v. Memorial Village Emergency Room LLC, No. 25-0627: The Court struck the petitioner’s petition for review, which exceeded the 4,500-word limit, and simultaneously denied its motion to exceed the word limit. (Translation: Follow our word limits, no matter how important you think your case is.)
Arguments
The Court’s next scheduled slate of arguments begins the week of November 3.
CA5
The Fifth Circuit, meanwhile, continues its productive pace.
![Joe Cocker – She Came In Through The Bathroom Window / That's Your Business – Vinyl (7", Single, 45 RPM), 1969 [r1063084] | Discogs](https://substackcdn.com/image/fetch/$s_!XIYz!,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2Fd15f039a-9f55-40e1-ad16-7dfed17dc290_600x600.jpeg "Joe Cocker – She Came In Through The Bathroom Window / That's Your Business – Vinyl (7\", Single, 45 RPM), 1969 [r1063084] | Discogs")
Orders
Before diving into opinions, the Fifth Circuit’s en banc docket is heating up.Over the past two weeks, the Court granted three en banc petitions:
W.M.M. v. Trump, No. 25-10534: Does the Alien Enemies Act authorize President Trump’s proclamation ordering removal of Venezuelan nationals tied to Tren de Aragua, and does the Government’s revised notice procedures satisfy due process?2
Airlines for America v. Department of Transportation, No. 24-60231: Does the Department of Transportation have the authority to promulgate a rule requiring airlines to clearly disclose service fees alongside airfare—and, if not, should the remedy be outright vacatur?
Roake v. Brumley, No. 24-30706: Under Stone v. Graham, 448 U.S. 30 (1980) (per curiam), does a law requiring Louisiana public schools to display a poster-sized copy of the Ten Commandments, as accompanied by a “context statement,” violate the First Amendment?3
With these three en banc grants, the Court will hear six (!) en banc cases during its January 2026 session.
Opinions
Even with en banc drama looming, the Fifth Circuit issued several notable opinions:
United States v. Constantinescu, No. 24-20143 (Higginson, Willett, Engelhardt, JJ.): A superseding indictment alleging a social‑media “pump and dump” scheme sufficiently alleges a scheme and intent to defraud under 18 U.S.C. §§ 1348 & 1349. Unlike the right‑to‑control theory rejected in Ciminelli, this indictment alleges fraudulent inducement—misrepresentations used to induce followers to buy securities, depriving them of money or property. Even absent net economic harm, intent to profit satisfies the “intent to defraud” element. The district court erred in dismissing the indictment.
Hershey v. City of Bossier City, No. 21-30754 (Dennis, Richman, Ho, JJ.): Did the district court err in dismissing First Amendment claims by a leafleteer removed from a public sidewalk outside a city-owned arena?
Majority (per curiam): Yes and no. In this “splintered panel decision,” the per curiam opinion merely provides the outcome. Judges Dennis and Ho agree that the district court erred in dismissing the Monell claim against Bossier City for failure to train. But Judges Richman and Ho agree that the court properly granted qualified immunity for the police officers and dismissed the security guards.
Concurrence (Ho, J.): The First Amendment protects evangelism on public sidewalks. Hershey plausibly alleged viewpoint discrimination and a complete failure to train, and so the district court’s dismissal of the Monell claim against the City was erroneous. But circuit precedent compels affirmance of qualified immunity for the officers and guards. That precedent is incorrect, but I’m bound by it.
Concurrence in Part and Dissent in Part (Dennis, J.): Would reverse across the board. Not only should Hershey’s Monell claim go forward, but so should his claims against the officers and guards. Qualified immunity doesn’t apply to the officers: “[V] iewpoint discrimination, regardless of forum, violates the First Amendment, and the right to be free from viewpoint discrimination is clearly established.” And the security guards were acting under color of state law when they removed Hershey, thus subjecting them to liability.
Concurrence in Part and Dissent in Part (Richman, J.): Would affirm across the board. The majority’s approach “radically expands” Monell liability, allowing a claim to move forward so long as there is a complete failure to train regarding the First Amendment—essentially, strict liability. Qualified immunity to the officers is proper, however, because neither the forum status nor viewpoint discrimination were clearly established. And the security guards are not state actors.
Hignell-Stark v. City of New Orleans, No. 24-30160 (Elrod, C.J.; Jones, Stewart, JJ.): While most of New Orleans’s short-term rental (STR) regulations are lawful, certain provisions are unconstitutional. The ban on business entities obtaining owner-or-operator permits violates the Equal Protection Clause because no evidence supports its relationship to the City’s stated goals and is thus irrational. Although the disclosure requirements for STR ads are permissible, the advertising rule requiring each listing to include only one dwelling unit fails First Amendment scrutiny. The operator “residency” rule survives dormant Commerce Clause review because the City’s narrowing interpretation requires only presence during guest stays, not permanent residence.
English v. Crochet, No. 25-30074 (Elrod, C.J.; Clement, Haynes, JJ.): The district court erred in dismissing a defamation claim under the Rooker-Feldman doctrine, which does not apply to a claim against opposing counsel for statements made during state-court sanctions proceedings. The injury stems from defendants’ conduct, not the judgment itself. As a result, the dismissal of the conspiracy claim must also be vacated. But the district court properly dismissed claims for infliction of emotional distress claims, as the alleged conduct—insults, accusations of fabrication, and a judgment debtor exam—is not “extreme and outrageous” under Louisiana law.
Arguments
In my last post, I flagged a curious order in Doe v. HHS, No. 24-40778 (Haynes, Ho, Oldham, JJ.). The panel offered a supplemental Zoom argument after lead counsel suffered a medical emergency on argument day—leaving second chair to argue. Counsel accepted, and the Court held argument on October 10.
15COA
Finally, a brief update from our statewide court of appeals, which issued two interesting opinions.
Paxton v. FIEL Houston, Inc., No. 15-24-00110-CV (Brister, C.J.; Field, Farris, JJ.): The Attorney General may institute quo warranto proceedings against a nonprofit corporation based on allegations of ultra vires acts. FIEL’s certificate of formation incorporated Section 501(c)(3) restrictions, and the State’s allegations that FIEL violated those limitations through alleged political activity—such as urging voters to oppose then‑candidate Donald Trump and lobbying against proposed immigration legislation—state a cause of action under Article IV, § 22 of the Texas Constitution and Chapter 66 of the Civil Practice and Remedies Code. The trial court thus erred in denying the Attorney General leave to file the petition. On remand, the trial court should address all remaining issues, including the request for temporary injunction.
Young v. Cook Children’s Health Plan, No. 15-24-00114-CV (Brister, C.J.; Field, Farris, JJ.): An intervention under Texas Rule of Civil Procedure 60 is “ineffective” when filed after a stay has been issued—including an automatic stay triggered by an interlocutory appeal under Section 51.014(b) of the Civil Practice and Remedies Code. The intervention becomes effective only once the stay is lifted. As a result, two intervenors— Molina Healthcare of Texas and Aetna Better Health of Texas—who intervened in the trial court after the filing of an appeal from a jurisdictional plea were not proper parties to the appeal. Nor does the “virtual representation” doctrine apply, as both entities were adequately represented by the appellant sharing their position. Molina and Aetna thus must be dismissed as parties, but their briefs will be treated as amicus briefs.
Red Light
If you’ve made it this far, you might be thinking: “Ain’t it high time we went?” (The answer is yes.) Thank you for sticking with me—I truly appreciate your readership and continued support.
As always, I welcome your feedback and suggestions for 1910 & Beyond. Please don’t hesitate to leave a comment or email me with thoughts, topic ideas, or tips on interesting cases.
To the growing number of readers who have subscribed—thank you. If you haven’t yet, I hope you’ll consider joining—especially at the unbeatable cost of free. And if you know someone who might enjoy this content, I’d be delighted if you passed it along.
Until next time, here’s hoping you have a rocking week—and also, like me, with a little help from your friends.
Thank you to my law firm, Hicks Johnson PLLC, for their support of 1910 & Beyond. Hicks Johnson is a premier trial and appellate boutique with offices in Houston and Chicago, known for delivering successful outcomes in high-stakes, complex litigation. We provide superior results for clients by combining elite legal talent and real courtroom experience with cutting-edge technology and strategic client collaboration.4
Congratulations to my friend John Bash (Quinn Emanuel), who was appointed as amicus curiae in support of the judgment below. As the Chief Justice noted, John “ably discharged that responsibility, for which we are grateful.”
A previous post covered the splintered panel opinion.
Another previous post covered the panel opinion, where I predicted the strong likelihood of en banc review.
Obligatory Lawyerly Disclaimer: This Substack is intended for informational purposes only and should not be construed as legal advice. The content provided does not constitute the formation of an attorney-client relationship. For advice specific to your situation, we recommend consulting with licensed legal counsel.
Thanks as always. Good summaries.