25-11: Trick or Treat
A look back to the weeks of October 13 and 20, with help from ghosts and goblins
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—even if the vibe this week is creepy.
Halloween is just around the corner, and the courts have served up plenty of treats for appellate geeks like me. But the spookiest news comes from the Supreme Court of Texas, which dropped a monster-sized update on Friday. Don’t miss that haunted house below.
And beyond the usual suspects, I recently ventured into the Supreme Court of Oklahoma’s ghostly opinion striking down a law establishing state business courts. Will the decision haunt the future of the Texas Business Court? Be sure to explore that eerie chamber at the end—if you dare. (Yes, I had a little too much fun with this week’s images—my thanks, as ever, to the ChatGPT conjurers.)
Finally, on November 4, will you be in Houston for the Institute of Energy’s Annual Energy Litigation Conference (co-chaired by my fantastic colleague, Persis Dean)? If so, please join my colleagues and me at a post-reception conference across the street at our new haunted offices. We’ll be serving beverages and light bites. (Perhaps Witches’ Brew and Frog Legs?) All are welcome—RSVP here!
And now, to begin our macabre journey . . .
1910
Orders and Opinions
Our trick-or-treating begins, as always, with our local courts here in Houston. Below, I highlight one notable opinion from the First and Fourteenth Courts, followed by brief summaries of others worth noting.
Features
IronOak, Inc. v. Porter, No. 01-23-00924-CV (Adams, C.J.; Morgan, Dokupil, JJ.): Iron Oak sued a company’s principals and lawyers for violations of the Texas Uniform Fraudulent Transfer Act (TUFTA), conversion, and conspiracy—claims based on a settlement agreement that didn’t include Iron Oak and didn’t assign the claims Iron Oak alleged were wrongfully transferred. The principals and lawyers moved to dismiss under Rule 91a and for sanctions against Iron Oak and its attorneys. After Iron Oak nonsuited its claims, the trial court granted the motion for sanctions—awarding some $45,000 in attorneys’ fees (and conditional appellate fees) and $275,000 in sanctions. Iron Oak and its attorneys appealed the order of sanctions.
The First Court affirmed, holding that the record supported the order of sanctions under Rule 13 and Chapter 10:
The pleadings—which, among other things, erroneously identified facts as “undisputed”— had no basis in law or fact.
The evidence showed that the suit was filed for an improper purpose—e.g., filing a TRO to derail a Massachusetts summary-judgment hearing, misrepresenting facts as “undisputed,” and ignoring the unredacted settlement agreement contradicting their allegations. And in considering improper purpose, the trial court properly considered the parties’ misconduct in other cases.
The trial court needed only consider the relevant Low factors, which supported the severe sanctions.
Finally, the First Court rejected IronOak’s post-submission argument that its French bankruptcy filing stayed the appeal. It held that Texas Rule of Appellate Procedure 8.2 applies only to domestic bankruptcies—and IronOak had not shown that a federal court recognized its foreign proceeding.
N.B.: Under Rule 13 and Chapter 10, trial courts may impose steep penalties for filings that are groundless and strategic maneuvers aimed at harassment. And if you’re hoping to stay a judicial proceeding based on a foreign bankruptcy, you must first seek that bankruptcy’s recognition in a federal court.
Kay v. Yosowitz, No. 14-23-00710-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.) (op. on reh’g): Laura Yosowitz brought direct and derivative claims against her ex-husband, Martin Kay, arising from breaches associated to a company they owned as community property. A jury awarded Yosowitz $378,000 on her direct claims and $138 million on her derivative claims, the latter of which the trial court reduced to $53.9 million likely based on her share of the community interest. Kay appealed.
On rehearing, the First Court affirmed in part and reversed in part:
The parties’ memoranda of agreement did not cap Yosowitz’s damages at $4.5 million.
Although sufficient evidence supported Kay’s standing to raise derivative claims—based on a company’s share value—on behalf of the company, her underlying damages model was legally insufficient. There was no evidence the company would have received company shares or equaled its value had Kay complied with his fiduciary duties.
As a result, the derivative award must be reversed, as well as the accompanying awards of investigation fees and attorneys’ fees.
By contrast, legally sufficient evidence supported Yosowitz’s recovery for her direct claims, as well as her underlying attorneys’ fees for that claim.
The First Court granted Yosowitz’s request to remand to the trial court to allow her to elect which remedy she sought to recover under, based on those favorable jury findings not challenged on appeal.
N.B.: Derivative damages must reflect the entity’s actual loss, not speculative valuations of unrelated companies. Courts may not be spooked by big numbers, but they will closely scrutinize the underlying damage models.
In Brief
1COA
Horndeski v. George, No. 01-24-00068-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Affirming the trial court’s order, the First Court held that the plaintiff’s expert report in a healthcare-liability case satisfied the Texas Medical Liability Act. The court rejected Dr. Horndeski’s objections that the expert was unqualified and the report inadequate. The expert—a board-certified plastic surgeon—had extensive experience with breast surgery and provided a detailed report explaining the applicable standards of care, alleged breaches, and causal links to the patient’s injuries. The report accordingly met the statutory “good-faith effort” standard, notwithstanding Dr. Horndeski’s contrary arguments.
14COA
In Interest of T.B.P., No. 14-24-00229-CV (Christopher, C.J.; Wise, Jewell, JJ.): The Fourteenth Court affirmed a judgment naming Mother and Father joint managing conservators and granting Mother the right to designate the child’s primary residence within Harris County or contiguous counties. Mother failed to preserve her argument that the trial court erred by failing to properly admonish the jury under Texas Rule of Civil Procedure 226a: She failed to contemporaneously object to the instructions provided, and she failed to request specific instructions. Nor did the trial court err in denying Mother’s motion for new trial based on alleged juror misconduct. Affidavits alleging jurors discussed the case during breaks did not show any likelihood that a juror voted differently on an issue vital to the judgment.
San Jacinto River Authority v. Ross, No. 14-23-00923-CV (Christopher, C.J.; Jewell, McLaughlin, JJ.): Reversing and rendering, the Fourteenth Court dismissed statutory takings claims brought by property owners who alleged that the River Authority’s water releases during Hurricane Harvey caused flooding. The court held that the River Authority conclusively established the “reasonable good faith” exclusion in Government Code § 2007.003(b)(7): The evidence showed that it acted under an objectively reasonable belief that releases were necessary to prevent a grave and immediate threat to life or property, including dam failure. Because Chapter 2007 did not apply, governmental immunity was not waived.
Woodlands Urban Air, LLC v. Guerra, No. 14-25-00685-CV (Christopher, C.J.; Wise, Jewell, JJ.) (per curiam): The Fourteenth Court dismissed an attempted interlocutory appeal for lack of jurisdiction. Appellants sought review of an August 2025 order denying their “renewed motion to compel arbitration” under a recent Texas Supreme Court decision. The court held that the renewed motion was substantively a motion to reconsider the trial court’s March 2024 order vacating arbitration, not a distinct motion to compel. As a result, the order effectively denying reconsideration was not appealable under Civil Practice and Remedies Code § 51.016 .
Chunkwuneke v. Chionuma, No. 14-23-00842-CV (Wilson, Hart, McLaughlin, JJ.): Affirming the denial of a bill of review, the Fourteenth Court held that appellants failed to prove the third Craddock element—lack of fault or negligence—in seeking to set aside a default judgment. Evidence showed that Chukwuneke was served and, on advice of counsel, intentionally chose not to appear. To that end, legal advice doesn’t excuse failure to appear. The court also rejected appellants’ collateral attack on a judgment nunc pro tunc purportedly issued after the expiration of plenary power, finding that they failed to introduce evidence of the original judgment’s contents to show judicial error. Without that proof, the nunc pro tunc judgment stands.
Arguments
The First and Fourteenth Courts continue their steady march of oral arguments. All are welcome to attend, but probably best to leave your costumes at home.
1COA
Tusker Capital Fund LLC v Southside Development Project LLC, No. 14-24-00310-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Whether the trial court properly granted summary judgment in a property dispute by upholding the validity of a lis pendens.
Appellant: Michael Keller (The Keller Firm)
Appellee: Mark Courtois (Funderburk Funderburk Courtois)
Argument: October 29 at 1:30 pm
Rosales v. State, No 01-23-00876-CR, 01-23-877-CR (Gunn, Caughey, Dokupil, JJ.): Among other issues, whether the trial court properly denied a defendant’s motion to suppress evidence based on the private-search doctrine.
Appellant: Jonathan Landers (Attorney at Law)
Appellee: Heather Hudson (Harris County District Attorney’s Office)
Argument: October 30 at 11:30 am
In re Singh, No. 01-25-00147-CV (Guerra, Guiney, Johnson, JJ.): Whether the trial court lacked subject-matter jurisdiction to enter a judgment of contempt and commitment order.
Relator: Ajay Ketkar (Kelly Watkins McPheeters)
Real Party in Interest: Mary Kate Raffetto (Beck Redden)
Argument: November 6 at 1:30 pm
14COA
Pitts-Marshall v. State, No. 14-24-00307-CR (Christopher, C.J.; Wise, Jewell, JJ.): Whether sufficient evidence supports the jury’s verdict, including that a special agent was acting as a public servant under Texas law.
Appellant: Stephen Aslett (The Aslett Law Firm)
Appellee: Bridget Holloway (Harris County District Attorney’s Office)
Argument: October 28 at 2 pm
Armstrong v. State, No. 14-23-00607-CR (Wilson, Hart, McLaughlin, JJ.): Multiple issues arising from the defendant’s conviction for capital murder and life sentence.
Appellant: Patrick McCann (Law Offices of Patrick F. McCann)
Appellee: Alan Curry (Harris County District Attorney’s Office)
Argument: October 29 at 2 pm
Memorial Women’s Care PLLC v The Hanover Casualty Company, No 14-24-00566-CV (Wilson, Hart, McLaughlin, JJ.): Whether the trial court properly denied the parties’ cross-motions for summary judgment regarding the duty to defend under an insurance policy.
Appellant: David Gauntlett (Whittaker Law Firm)
Appellee: Robert Hogue (Robert G. Hogue, P.C.)
Argument: October 29 at 2 pm
Meaux v. State, No. 14-24-00800-CV (Wilson, Hart, McLaughlin, JJ.): Among other issues, whether alleged judicial bias requires a new trial.
Appellant: Stephen Aslett (The Aslett Law Firm)
Appellee: Bridget Holloway (Harris County District Attorney’s Office)
Argument: November 6 at 1:30 pm
Carlson v. Hutchison, Inc., No. 14-24-00703-CV (Christopher, C.J.; Wise, Jewell, JJ.): Whether the trial court properly denied a motion to dismiss under the Texas Citizens Participation Act, either based on certain exemptions or procedural default.
Appellant: Samuel Haren (Meade Neese & Barr)
Appellee: Joshua Smith (Beck Redden)
Argument: November 3 at 2 pm
State v. Cabeza-Torres, No 14-24-00993-CR (McLaughlin, Bridges, Boatman, JJ.): Whether the trial court erred in granting habeas relief absent proof of prejudice.
Appellee: Joseph Sanchez (Harris County District Attorney’s Office)
Argument: November 5 at 10 am
Graybar Electric Co. v Buying Power, Inc., No 14-24-00683-CV (Christopher, CJ; Boatman, Antú, JJ): Whether sufficient evidence supports the jury’s damages verdict, and whether sufficient evidence supports the award of attorneys’ fees.
Appellant: Michael Jung (Clark Hill)
Appellee: Chris Dove (Beck Redden)
Argument: November 6 at 2 pm
& Beyond
Now, we venture beyond the Haunted 1910 Courthouse into other ghoulish jurisdictions . . .
SCOTUS
Although the Supreme Court of the United States has boarded up its haunted doors to the public amid the long-running shutdown, the ghouls and goblins inside continue to stir—ensuring that the Court’s business creeps forward.
Opinions
Still no merits opinions, but the Court issued several orders-related decisions. Some are from the Court’s emergency docket—or considering the holiday, perhaps the original “shadow docket” is the seasonally appropriate term.
Humphreys v. Emmons, No. 24-826 (Sotomayor, J., joined by Kagan, Jackson, JJ., dissenting from denial of certiorari): The Court denied certiorari in a Georgia capital case involving a procedurally defaulted claim of juror misconduct. Dissenting, Justice Sotomayor described how a juror misled the court during voir dire about her prior assault and then coerced fellow jurors into imposing a death sentence. She argued that this case illustrates when the no-impeachment rule should yield to Sixth Amendment guarantees, noting that the juror’s “extreme” conduct likely changed the verdict. But recognizing the lack of clarity on whether the Eleventh Circuit improperly applied AEDPA deference to the procedural-default inquiry, she urged vacatur and remand for clarification “rather than leav[ing] Humphreys’s juror-misconduct claim caught in a web of procedural barriers.”
Thomas v. Humboldt County, No. 24-1180 (Gorsuch, J., respecting denial of certiorari): The Court denied certiorari in a case asking whether the Seventh Amendment’s civil-jury-trial right applies to the States. Justice Gorsuch agreed with the denial, recognizing the case’s vehicle problems. But he called Bombolis—the 1916 case holding that the Seventh Amendment doesn’t apply to the States—a “relic” that warrants reconsideration. He emphasized that nearly all other Bill of Rights protections have been incorporated and argued that the civil-jury-trial right, deeply rooted in American history, should not be treated differently. Justice Gorsuch urged the Court to revisit Bombolis soon, noting its continued effect creates a “two-tiered system of justice.”
Lee v. Poudre School District R-1, No. 25-89 (Alito, J., joined by Thomas, Gorsuch, JJ., respecting denial of certiorari): The Court denied certiorari in a case challenging school policies on gender-identity disclosure. Justice Alito concurred in the denial because the petitioners didn’t contest the lower court’s dispositive ruling. But he warned of a “great and growing national importance” in determining whether schools violate parents’ fundamental rights by encouraging gender transitions without parental knowledge or consent. To that end, he expressed concern that lower courts are being “tempted” to avoid this “particularly contentious constitutional question.”
Crawford v. Mississippi, No. 25-385 (Sotomayor, J., joined by Kagan, Jackson, JJ., dissenting from denial of stay and certiorari): The Court denied a stay of execution and certiorari in a Mississippi capital case where defense counsel allegedly conceded guilt against the defendant’s explicit instructions. Justice Sotomayor dissented, arguing that this violated the Sixth Amendment under McCoy v. Louisiana (2018), which bars lawyers from overriding a defendant’s decision to maintain innocence. Because Crawford’s conviction became final before McCoy, the case raised an unresolved question that has split lower courts: whether McCoy applies retroactively on collateral review. Finally, Justice Sotomayor rejected the State’s arguments against certiorari in this case—that defense counsel didn’t actually concede guilt, and that Crawford unduly delayed in bringing this claim. She lamented the Court’s failure to grant review, “even though a man’s life is in the balance.”
Boyd v. Hamm, No. 25A457 (Sotomayor, J., joined by Kagan, Jackson, JJ., dissenting from denial of stay and certiorari): The Court denied a stay and certiorari for an Alabama inmate who sought to be executed by firing squad rather than nitrogen hypoxia. Justice Sotomayor dissented, describing the nitrogen-gas method as “torturous suffocation” lasting two to four minutes before unconsciousness, followed by death about 20 minutes later. In her view, nitrogen hypoxia imposes a “superaddition of terror” under Bucklew v. Precythe and Boyd identified a feasible alternative: execution by firing squad. Justice Sotomayor warned that continuing this experimental method violates the Eighth Amendment’s ban on cruel and unusual punishment.
Orders
In other orders, the Court granted certiorari in three cases:
Flower Foods, Inc. v. Brock, No. 24-935 (Tenth Circuit): Whether workers who deliver locally goods that travel in interstate commerce—but who do not transport the goods across borders nor interact with vehicles that cross borders—are “transportation workers” “engaged in foreign or interstate commerce” for purposes of the exemption in Section 1 of the Federal Arbitration Act.
United States v. Hemani, No. 24-1234 (Fifth Circuit):1 Whether 18 U.S.C. § 922(g)(3)—which prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance”—violates the Second Amendment as applied to respondent.
Keathley v. Buddy Ayers Construction, Inc., No. 25-6 (Fifth Circuit):2 Whether the doctrine of judicial estoppel can be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim merely because there is a potential motive for nondisclosure, regardless of whether there is evidence that the plaintiff in fact acted in bad faith.
The Court also called for the views of the Solicitor General in two cases:
Renteria v. New Mexico Office of the Superintendent of Insurance, No. 25-113 (Tenth Circuit): Oversimplified, whether the court of appeals properly applied Employment Division v. Smith to Free Exercise claims brought by faith-based healthcare sharing ministries.
Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No. 25-119 (Fifth Circuit):3 (1) Whether a bankruptcy court can act as a gatekeeper to screen noncolorable lawsuits against nondebtor bankruptcy participants; and (2) whether a bankruptcy court can to a limited degree exculpate nondebtor bankruptcy participants from liability for conduct arising from the bankruptcy process.
The Court also summarily denied two applications for stays of execution, as well as an application for a writ of injunction in a case involving a challenge to the State of California’s school-vaccination requirements.
Arguments
The Court will be back in session for a series of oral arguments during the week of November 3. (Definitely don’t wear costumes to the Court.)
November 3
Rico v. United States, No. 24-1056 (Ninth Circuit): Whether the fugitive-tolling doctrine applies in the context of supervised release.
Hencely v. Fluor Corporation, No. 24-924 (Fourth Circuit): Whether Boyle v. United Technologies Corp. should be extended to allow federal interests emanating from the Federal Tort Claims Act’s combatant-activities exception to preempt state tort claims against a government contractor for conduct that breached its contract and violated military orders.
November 4
Coney Island Auto Parts Unlimited, Inc. v. Burton, No. 24-808 (Sixth Circuit): Whether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.
The Hain Celestial Group, Inc. v. Palmquist, No. 24-724 (Fifth Circuit):4 Whether a district court’s final judgment as to completely diverse parties must be vacated when an appellate court later determines that it erred by dismissing a non-diverse party at the time of removal.
November 5
Learning Resources, Inc. v. Trump, No. 24-1287 (D.C. District Court), consolidated with Trump v. V.O.S. Selections, No. 25-250 (Federal Circuit): (1) Whether the International Emergency Economic Powers Act (IEEPA) authorizes the tariffs imposed by President Trump pursuant to the national emergencies declared by presidential proclamation and executive order. (2) If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the President.
SCOTX
As hinted at the top of this post, Friday brought two major news drops from the Supreme Court of Texas—think of them as surprise king-sized candy bars in your appellate trick-or-treat bag.
A New Justice. First, Governor Greg Abbott announced his appointment of Kyle Hawkins to the Supreme Court, filling the vacancy left by Justice Jeff Boyd’s retirement. A former law clerk to Justice Samuel Alito and Judge Edith Jones, Justice Hawkins is a career appellate litigator—having served as Texas Solicitor General, Counselor to the Solicitor General, and chair of the appellate practice at Lehotsky Keller Cohn.
I’ve known Justice Hawkins since our early days as baby appellate lawyers at the same firm in Washington, D.C. Beyond his impeccable credentials, he is legally brilliant and grounded in integrity and principle. While the Governor surely had no shortage of qualified candidates—and yes, I’m biased—this appointment is a grand slam. Justice Hawkins will be an outstanding addition to the Court.
Congratulations to Justice Hawkins, and to his family, on this well-earned achievement!
Major Upcoming Changes to Supreme Court Practice. Next—but no less important—the Supreme Court has preliminarily approved sweeping amendments to the Texas Rules of Appellate Procedure that would fundamentally reshape how the Court handles petitions for review. If adopted, the revisions—slated to take effect January 1, 2026—would eliminate the longstanding practice of requesting full merits briefs before deciding whether to grant review. Instead, the Court would shift to a model more closely aligned with the U.S. Supreme Court, deciding at the petition stage whether a case warrants full merits consideration.
The proposed changes to Rule 53 (and corresponding updates to Rule 52 for mandamus petitions) reflect a deliberate move toward more robust petition-stage briefing. To support this shift, the word limit for petitions and responses will increase by 2,000 words, and parties must include a 1,000-word introduction that succinctly explains why the case deserves a spot on the Court’s merits docket. As the Court’s summary procedures describe, a well-framed introduction should motivate Justices to read further with care—while also helping them quickly identify petitions that don’t merit review:
The goal of petitioner’s introduction section is to explain enough about the case, its importance, and the merits to illustrate its plausible inclusion within the Court’s merits docket. A well-framed introduction will motivate members of the Court to read beyond that section with care. Conversely, clear introductions help the Court more readily understand when a petition for review should be denied.
Importantly, the amendments also eliminate the practice of “unbriefed” issues—where parties raise an issue in their petition but reserve substantive discussion for merits briefing. That change alone promises to streamline the Court’s review process and reduce the risk of surprise or underdeveloped arguments.
While I’m still weighing some details of the proposed amendments, I strongly support the overall change. According to the Court’s prior internal operating procedures, only about one in three cases for which merits briefs were ordered resulted in a grant of review or a per curiam opinion. That means parties in roughly 67% of cases invested significant time and expense—often preparing 15,000-word briefs—only to receive a summary denial (or, at best, an opinion accompanying denial). That may have been good business for appellate lawyers—myself undoubtedly included—but it was costly for clients and contributed to delays in resolution. By shifting the focus to petition-stage briefing, the new rules promise faster decisions, lower costs, and greater predictability—while signaling a broader cultural shift in how the Court manages its docket.
The Court invites public comments on the proposed rules through December 23, 2025. Barring unforeseen circumstances, practitioners should expect some form of these changes to go into effect on January 1, 2026.
Opinions
Now, to the regular news. Still no merits opinions from the Court—but perhaps revealing their Halloween costumes as the kids from Captain Planet, Justices Young and Sullivan “let their powers combine” in yet another orders-related opinion:
In re Novartis Pharmaceuticals Corp., No. 24-0239 (Young & Sullivan, JJ., statement respecting denial of mandamus): The Court declined to grant mandamus in a case raising two major constitutional challenges to the Texas Health Care Program Fraud Prevention Act. Novartis argued that (1) a private relator lacks standing because alleged violations caused no injury to the relator, and (2) the Act violates Texas’s separation-of-powers provision by allowing private parties—rather than the attorney general—to represent the State in court.
Justices Young and Sullivan acknowledged the gravity of these constitutional questions—echoes of which are currently haunting federal courts in challenges to the federal qui tam statute. They suggested the Court “perhaps should have set [the case] for oral argument,” but noted that the newly created Fifteenth Court of Appeals has asserted jurisdiction over similar disputes and should weigh in first.
Their statement spotlights two ghastly questions lurking in the Texas qui tam statute:
Whether Texas standing doctrine permits a relator to sue absent an “injury in fact,” given the Act’s penalty-based scheme.
Whether deputizing private citizens to enforce state law violates Article II and other constitutional provisions assigning representation of the State to public officials.
The Justices urged lower courts—and eventually this Court—to confront these issues head-on, warning that both constitutional clarity and federal financial incentives are at stake. And in a final twist, they even suggested that Novartis might consider filing a fresh mandamus petition directly in the Fifteenth Court.
Orders
As usual, the Court’s customary Friday orders lists were haunted by the familiar specter of denied petitions for review and writs of mandamus. But one mandamus petition managed to rise from the grave, earning a spot on the oral-argument calendar:
In re State Farm Mutual Automobile Insurance Company, No. 24-0786 (Fifth Court): Whether the trial court clearly abused its discretion in entering a Level 3 discovery-control plan that declared certain discovery deadlines expired, despite default Level 2 discovery deadlines still being months away.
Arguments
Now joined by Justice Hawkins, the Court returns to oral argument during the week of November 3. With a full bench, expect some “spirited” exchanges among the Justices.
November 4
Studio E. Architecture & Interiors, Inc. v. Lehmberg, No. 24-0286 (Fourth Court): Whether a plaintiff may cure a defective petition under Chapter 150 of the Civil Practice and Remedies Code through amendment, or whether the defect may only be cured by filing a new action.
Petitioner: Douglas Alexander (Alexander Dubose & Jefferson)
Respondent: Greta McFarling (Houston Dunn)
Cockrell Investment Partners, L.P. v. Middle Pecos Groundwater Conservation District, Nos. 23-0593, 23-0742 (Eighth Court): Various issues surrounding the statutory requirements for waiving a groundwater district’s immunity under the Texas Water Code, including administrative exhaustion and party standing.
Petitioner: Denise Drake (Gibbs & Bruns)
Respondent: Jose de La Fuente (Lloyd Gosselink Rochelle & Townsend) and Edmond McCarthy (McCarthy & McCarthy)
Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC, No. 24-0543 (Second Court): Whether a real property owner may be granted injunctive relief to abate a nuisance even though the relevant statute of limitations has expired for each of its claims for monetary relief.
Petitioner: Paul Downey (Macdonald Devin Kenefick Harris)
Respondent: Scott Wert (Attorney at Law)
State v. JRJ Pusok Holdings, LLC, No. 24-0447(Fourth Court): Whether the State is immune from a suit to repurchase property acquired through eminent domain.
Petitioner: Beth Klusmann (Office of Attorney General)
Respondent: Matthew Zagrodzky (Warren & Baker)
November 5
Ruth v. Commission for Lawyer Discipline, No. 24-0613 (Fourth Court): Whether an attorney representing himself is subject to the disciplinary rule barring attorneys from communicating directly with parties who are represented by counsel.
Petitioner: Timothy Hootman (Attorney at Law)
Respondent: Michael Graham (Office of Chief Disciplinary Counsel)
Busse v. South Texas Independent School District, No. 24-0782 (Thirteenth Court): Among other issues, whether Lyford Consolidated Independent School District and Willacy County taxpayers have standing to challenge South Texas Independent School District’s changed use of ad valorem tax revenue.
Petitioner: Sara Leon (Leon | Alcala)
Respondent: Parth Gejji (Beck Redden)
City of San Antonio v. Realme, No. 24-0684 (Fourth Court): Whether participating in an organized 5K race constitutes “recreation” under the Recreational Use Statute.
Petitioner: Jacqueline Stroh (Law Office of Jacqueline M. Stroh)
Respondent: Matthew Kita (Attorney at Law)
November 6
Boerschig v. Rio Grande Electric Cooperative, No. 24-0213 (Fourth Court): Whether a jury properly found in favor of a utility company’s easement by estoppel.
Petitioner: Craig Enoch (Butler Snow)
Respondent: Jessica Barer (Wright Close Barger & Guzman)
Bauer v. Braxton Minerals III, LLC, No. 24-0438 (Second Court): Whether Texas courts lack jurisdiction to adjudicate title to property if the “gist” or “gravamen” of a claim involves adjudication to title to out-of-state property.
Petitioner: Jason Boatright (Duane Morris)
Respondent: Dana Levy (Durham, Pittard & Spalding)
In re Brenham Nursing & Rehabilitation Center, No. 24-0494 (First Court): Whether a district court properly struck a nursing home’s defense under the Pandemic Liability Protection Act by failing to provide “specific facts” supporting the defense.
Relator: Joshua Anderson (Horne Rota Moos)
Real Party in Interest: Dawn Smith (Smith Clinesmith)
CA5
We now head east from Austin—not to Transylvania, but to New Orleans.
Opinions
Despite the federal shutdown, the Fifth Circuit—where the ghosts of precedent still whisper through the marble halls of the haunted John Minor Wisdom Courthouse— hasn’t slowed its steady stream of noteworthy opinions.
Harmon v. Collier, No. 23-40342 (Dennis, Southwick, Ho, JJ.): Did the district court err in upholding a jury verdict awarding $1 million in backpay and finding liability under the Rehabilitation Act and ADA for termination and failure to rehire?
Majority (Southwick, J.): Yes and no.
Sovereign immunity barred monetary relief against the defendant on ADA claims, requiring dismissal.
Although sufficient evidence supports the plaintiff’s Rehabilitation Act claims for discriminatory termination and retaliation, the plaintiff’s failure-to-rehire discrimination claim fails as a matter of law because cat’s-paw liability cannot satisfy the Act’s sole-causation standard.
A new trial is not required based on the jury’s purportedly irreconcilable verdict because the verdict was a general one—and, at any rate, the defendants cannot satisfy plain-error review.
Finally, the jury’s $1 million backpay award likely included pension benefits that should have been treated as front pay, requiring remand for recalculation, as well as reconsideration of attorney’s fees.
Concurrence in Part and Dissent in Part (Dennis, J.): Yes and no. Cat’s-paw liability is compatible with the Rehabilitation Act’s causation standard, and so the plaintiff’s failure-to-rehire discrimination claim should stand. But remand is required for recalculation of the plaintiff’s backpay award.
Concurrence in Part and Dissent in Part (Ho, J.): Yes. A new trial is required because the verdict is irreconcilable: Finding both “sole cause” disability discrimination and “but-for” retaliation violates the Rehabilitation Act’s mutually exclusive causation standards. And the verdict is a special verdict, not a general one.
Berryman v. Huffman, No. 23-60627 (Wiener, Douglas, Ramirez, JJ.): When a state court finds a speedy trial violation on one count of a multi-count indictment, must it dismiss the entire indictment?
Majority (Douglas, J., joined by Wiener, J.): Yes. Dismissal of the indictment—not selective dismissal—is the “only possible remedy” for a speedy trial violation under established precedent. The state court’s count-by-count approach was an unreasonable application of clearly established federal law under AEDPA, requiring habeas relief.
Dissent (Ramirez, J.): Not necessarily. Supreme Court precedent does not clearly establish that dismissal of the entire indictment is required when only one count is affected. As a result, AEDPA’s high bar, and so the district court properly denied habeas relief.
In re Rose, No. 21-40718 (Elrod, C.J.; Richman, Oldham, JJ.): Did the district court properly reverse a bankruptcy court’s award of damages and attorneys’ fees in a dispute over a horse-sale and ranch lease agreement?
Majority (Richman, J., joined by Elrod, C.J.): Yes and no.
The district court rightly reversed the $1.1 million breach-of-contract damages award because the award did not reflect any legally recognized measure of damages under Texas law. A remand for clarification or further factfinding is unnecessary.
But the district court wrongly reversed the bankruptcy court’s conclusion that Rose violated the Texas Theft Liability Act: She appropriated the Aarons’ property by threatening to retain their horses after she no longer had a right to do so. A remand is necessary for additional factfinding on intent and causation.
Finally, the district court rightly reversed the bankruptcy court’s judgment for diminution in value of two fillies, finding insufficient evidence to quantify damages.
On remand, the bankruptcy court also should reconsider whether the Aarons are entitled to attorneys’ fees.
Concurrence in Part and Dissen in Part (Oldham, J.): The majority rightly concludes that Rose violated the TTLA. But the bankruptcy court’s findings on other claims should have been upheld or clarified on remand, rather than outright vacated.
United States v. Haim, No. 25-20336 (Elrod, C.J.; Jones, Higginson, JJ.) (order): Did the district court err in summarily denying a joint unopposed motion to modify a protective order governing criminal discovery materials?
Majority (per curiam): Yes. There is no indication that the requested modification would disclose grand-jury deliberations or votes, and the parties that confirmed none of the materials implicated Rule 6(e) secrecy. Deference to the district court is unwarranted because the court provided no reasoning for its denial.
Dissent (Higginson, J.): No. “The parties made no effort to address grand jury secrecy in their joint motion to modify the protective order[.]” The defendant’s claim that this material is necessary for his new civil counsel to explore wrongful-prosecution claims does not satisfy Rule 6(e). At minimum, the parties should fully brief the issue, or the matter could be remanded to the district court for further factfinding.
Arguments
Meanwhile, the Fifth Circuit has a full slate of arguments, with multiple panels convening during the week of November 3. Among the cases being argued are CCIA v. Paxton, No. 24-50721—the First Amendment challenge to Texas HB18, the Securing Children Online Through Parental Empowerment (SCOPE) Act, which among other things imposes restrictions on minors’ access to social-media websites.
15COA
Back in Texas, where the Fifteenth Court of Appeals remains busy.
Opinions
The Court handed down two notable decisions this week, one of which stood out for the State of Texas’s argument on general jurisdiction and consent-by-registration—a topic that may yet return from the dead.
In re Nonparty Patient Nos. 1–11, No. 15-25-00031-CV & No. 15-25-00032-CV (Brister, C.J.; Field, Farris, JJ.): In a lawsuit against a physician for violating the State’s ban on providing certain gender-affirming medical treatment, the Collin County District Court abused its discretion by ordering hospitals to begin producing medical records under subpoenas while motions for protection were pending in Dallas County. Under Texas Rule of Civil Procedure 176.6(e), a motion for protective order stays compliance until ruled upon. The State’s arguments based on sovereign immunity and dominant jurisdiction fail because a motion for protection is not a “suit” to which immunity applies, and dominant jurisdiction does not extend to collateral protection proceedings. Although the State raised standing for the first time on appeal, the record does not conclusively negate standing, and the patients are entitled to an opportunity to amend. Because erroneous disclosure of privileged medical records leaves no adequate appellate remedy—and nonparties cannot appeal—mandamus relief is appropriate.
State v. Yelp, Inc., No. 15-24-00040-CV (Brister, C.J.; Field, Farris, JJ.): The trial court wrongly granted Yelp’s special appearance in a Deceptive Trade Practices Act suit brought by the State, which arose from Yelp’s Consumer Notice placed on Crisis Pregnancy Centers. The State did not plead facts establishing general jurisdiction, as its petition lacked allegations that Yelp consented to jurisdiction by registering to do business in Texas. But the State sufficiently pleaded and proved specific jurisdiction. Yelp purposefully availed itself of Texas by operating a platform that targets Texas consumers with location-based advertising and by appending the disputed notice to the business pages of over 200 Texas crisis pregnancy centers. These contacts are substantially related to the operative facts of the litigation, and exercising jurisdiction comports with traditional notions of fair play and substantial justice.
But to me, what’s most intriguing in Yelp is the question the Court didn’t answer:
Is Section 9.203 of the Texas Business Organizations Code a “consent-by-registration” statute, conferring general jurisdiction under Mallory v. Norfolk Southern Railway Co. (2023)?
The Court sidestepped the issue because the State didn’t plead it. But the argument—advanced not by a private litigant but by the State of Texas—raises the stakes. At his 14th & Colorado Substack, Adam Shniderman offers characteristically sharp analysis, noting that the Fifth and Fourteenth Courts have rejected the theory—and rightly so, as he seems to suggest. Still, the fact that the State is floating this argument is what makes the opinion a bit spooky. If the issue returns to the Fifteenth Court—or even the Supreme Court—will the State stick to its position from Yelp? That would be a real “treat” for Texas plaintiffs’ attorneys.
Arguments
Like its counterparts, the Fifteenth Court has an upcoming argument session on October 30 at 1:30 pm—just in time for a little courtroom trick-or-treating.
Hancock v. American Airlines, Inc., No. 15-24-00113-CV: Whether the trial court correctly concluded that the Anti-Head Texas Act preempts the Texas franchise tax as applied to certain airline fees and ticket sales.
Appellant: Kyle Counce (Office of Attorney General)
Appellee: Richard Phillips (Holland & Knight)
CreateAI Holdings, Inc. v. Bot Auto TX Inc., No. 15-25-00001-CV: Whether the trial court properly denied a temporary injunction in a trade-secrets dispute.
Appellant: Christopher Kratovil (Dykema Gossett)
Appellee: Joseph Fischer (Jackson Walker)
Kreines v. ES3 Minerals, LLC, No. 15-25-00027-CV: Whether a temporary injunction in a trade-secrets dispute complies with Texas Rules of Civil Procedure 683 and 684.
Appellant: Gabrielle Smith (Lloyd Gosselink Rochelle & Townsend)
Appellee: Ryan Clinton (Hunton Andrews Kurth)
Other
Having visited the usual courts, we now take a final detour to Oklahoma—where the state Supreme Court recently issued a decision that could send chills through business litigation circles.
White & Waddell v. Stitt, No. 123222 (Okla.): Does Senate Bill 632, which creates Business Court Divisions with judges appointed by the Governor, violate the Oklahoma Constitution?
Majority (Gurich, J., joined by Winchester, Edmonson, Combs, Gurich, Darby, JJ.): Yes. Business Courts are divisions of the District Courts. And under Article VII, Section 9 of the Constitution, District Judges—which would include the judges of the Business Court Divisions—must be elected, not appointed.
Concurrence in Part and Dissent in Part (Rowe, C.J.): The majority’s conclusion is correct, but the problem could be easily solved by amending the enacting legislation so that Business Court judges are elected, not appointed.
Dissent (Kuehn, V.C.J.): The Court shouldn’t exercise original jurisdiction but await ordinary review. And on the current record, the petitioners lack standing.
Dissent (Jett, J.): The Court shouldn’t exercise original jurisdiction but await ordinary review.
What struck me about White & Waddell was SB 932’s similarities to HB 19, the Texas legislation creating the Texas Business Court. Could Texas see a similar constitutional challenge to the Texas Business Court, whose judges also are appointed by the Governor—not elected?
My colleague Kate Ring and I explored this in more depth. Here’s what we wrote:
In Texas, businesses may wonder whether White & Waddell could inspire similar constitutional challenges to the Texas Business Court. While possible, differences in the Texas Constitution likely provide stronger protection for the system.
Like SB 632, HB 19 provides that Business Court judges are appointed by the Governor for renewable two-year terms rather than elected. And, like Oklahoma’s Constitution, Article V, Section 7(b) of the Texas Constitution states that district judges “shall be elected by the qualified voters at a General Election.” A challenger could argue that the analysis should mirror White & Waddell.
But unlike the Oklahoma Constitution, the Texas Constitution explicitly empowers the Legislature to “establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof.” To that end, HB 19 explicitly designated the Business Court as “a statutory court created under Section 1, Article V” of the Texas Constitution. Proponents will argue this grants broad legislative authority over the court’s structure, including judicial selection. Opponents may contend that, despite this language, the Business Court functions as a constitutional district court subject to election requirements.
Unlike the recent unsuccessful challenge to the new statewide Fifteenth Court of Appeals, the Supreme Court of Texas has not yet addressed this question. Businesses should monitor developments closely in the wake of White & Waddell.
As the kids say, read the whole thing.
Red Light
We’ve now reached the end of our ghoulish journey through the appellate landscape—past haunted courthouses, spectral jurisdictional theories, and constitutional creatures that go bump in the night.
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, have a happy Halloween! If your kids are trick-or-treating, let me know if you plan to wake them up Saturday morning in the way I plan to wake mine.
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.5
The Fifth Circuit panel consisted of Judges Haynes, Higginson, and Douglas, who authored a per curiam opinion.
The Fifth Circuit panel consisted of Judges Higginbotham, Stewart, and Haynes, who authored a per curiam opinion.
Chief Judge Elrod authored the opinion for the Fifth Circuit panel, joined by Judges Willett and Duncan.
Judge Stewart authored the opinion for the Fifth Circuit panel, joined by Judges Clement and Ho.
Spooky 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.
Good write-ups. Thanks for putting this together.