25-15: Please Allow Me to Introduce Myself

A look back to the weeks of December 8 and 15, with help from the Rolling Stones

Dec 23, 2025

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!

This week, I’m pleased to be joined by my talented colleague Fraser Holmes. But before turning to the usual coverage, I’ll begin with a welcome rules proposal from Judge Kevin Newsom and Chief Judge William Pryor of the Eleventh Circuit. Later, I’ll talk about how some members of the Fifth Circuit apparently can’t get no satisfaction from each other’s opinions. Finally, you’ll notice no arguments covered in this edition—all courts are out of time for 2025 and will resume in January.

Now, please allow me to introduce myself . . .

Introduction

Many appellate briefs open with an introduction. Though neither the Federal Rules of Appellate Procedure nor—aside from petitions for review—the Texas Rules require one, a disciplined introduction lets a busy judge, staff attorney, or clerk grasp the appeal’s core at a glance. With rare exceptions, I start every brief with an introduction because it offers a strategic chance to frame the case from the outset—the key legal issue and the dispositive facts that drive its resolution—so the reader begins oriented to what matters before the details take over.

The Rolling Stones – Sympathy For The Devil – Vinyl (7", 45 RPM), 1968 [r2488845] | Discogs — **Sympathy for the Devil,** from *Beggars Banquet* (1968).

Judge Newsom and Chief Judge Pryor want to formalize the Introduction’s role in the Federal Rules. As they explain in a letter to the Advisory Committee on Appellate Rules:

As matters currently stand, Rule 28 says nothing about introductions one way or the other, but savvy lawyers often use them—we think, to great effect. A well-crafted introduction allows a lawyer to orient the court to what Seth Waxman once called “the kernel” of his or her case. It is, in effect, the lawyer’s “elevator pitch”: It briefly introduces the dispute, tees up the key issues, and explains why they should be resolved in a particular way. . . . An introduction can also refresh a busy appellate judge’s recollection of a case—oftentimes right before he or she takes the bench. Good for the lawyer, good for the judge.

They thus propose adding language to Rule 28 permitted—but not requiring—a “short introduction that briefly frames, the case, identifies the key legal issue(s), and recommends a resolution.”

I very much agree with this proposal. Even if experienced appellate lawyers already include introductions in their briefs, those who don’t regularly practice in appellate courts often don’t. If the rules don’t provide for an introduction, these lawyers don’t know that they can—and likely should—include one. As Judge Newsom and Chief Judge Pryor say, “Good for the lawyer, good for the judge.”

But I observed one place where Judge Newsom and Chief Judge Pryor’s proposal seems to diverge from the proposed petition-stage amendments to the Texas Rules, which I covered in a previous post (and which are due to take effect on January 1, 2026). While these judges believe that the introduction should be an “elevator pitch”—not “a slimmed-down summary of the argument”—the proposed Texas Rules seem to think otherwise. They call for an introduction of up to 1,000 words that both explains the jurisprudential importance of the petition and “summariz[es] the reasons the Court should grant relief.”

In a letter to the Clerk of the Supreme Court of Texas commenting on the proposed amendments, I explained how this second function “is essentially a Summary of the Argument.” I noted how this proposal risks duplicative briefing under the proposed rules:

Yet while Rule 52.3 does not require a Summary of the Argument in mandamus petitions, Rule 53.2 does require one in petitions for review. Given the 1,000-word limit for Introductions, this structure risks duplication: Under Rule 53.2(a), the petitioner wilk summarize the legal reasons for prevailing in the Introduction; and under Rule 53.2(i), the petitioner presumably will do so again in the Summary of the Argument.

To eliminate this overlap, I suggested one of two alternatives:

(1) Remove Rule 53.2(i), and clarify in both Rules 52.3(a) and 53.2(a) that the Introduction should include a summary of the legal argument as well as the petition’s jurisprudential significance. Under this change, the Court might also increase the Introduction’s word limit to 1,250 words (roughly five pages).
(2) Retain Rule 53.2(i), but reduce the Introduction’s word limit—perhaps to 500 words (roughly two pages)—so that it focuses more on the petition’s jurisprudential significance, rather than duplicating the Summary of the Argument. For consistency, the Court could then add a Summary of the Argument requirement to Rule 52.3, and clarify the purpose of each individual section accordingly in both Rules 52.3 and 53.2.

The first option, I noted, seemed better aligned “with the Court’s stated preference for a robust summary at the outset, as reflected in the Petition for Review Procedures Summary.” The second option, by contrast, strikes me more as the “elevator pitch” discussed by Judge Newsom and Chief Judge Pryor.

Either way, the recent focus on introductions is a positive development. Both courts and practitioners will benefit from rules-based clarity at the threshold—the key issue and decisive facts, then on to the details. Or, perhaps in Stones terms, think of the opening move of Sympathy for the Devil: a confident setup that orients the reader before the story unfolds.

1910

The Rolling Stones – “Gimme Shelter | Don't Forget The Songs 365 — **Gimme Shelter**, from *Let It Bleed* (1969).

Orders and Opinions

Now, after this (not-so-brief) introduction, we turn to our local courts here in Houston. Below, I highlight one notable opinion from the First and Fourteenth Courts, each court, followed by brief summaries of others worth noting.

Campbell v. State, No. 01‑23‑00389‑CR (Gunn, J., joined by Adams, C.J. & Caughey, J.) (order): Concurring in the denial of en banc reconsideration in a criminal case, Justice Gunn offered practical guidance on Rule 41.2(c). He emphasizes that en banc review is disfavored and should be reserved for maintaining uniformity or extraordinary circumstances—not mere misapplication of settled law to a particular record. But more importantly, Justice Gunn proposes that future motions begin with a one‑page, stand‑alone “Rule 41 statement” that squarely identifies (1) a conflict within the court’s decisions and (2) any extraordinary circumstances, before developing argument.

Applying these principles, Justice Gunn explained why the motion at hand did not warrant full‑court review: a North Carolina clergy‑communicant privilege issue is unlikely to recur in Texas, and the lesser‑included‑offense charge dispute reads as a contention that the panel misapplied controlling Court of Criminal Appeals precedent to the specific record—fit for panel rehearing or a petition for discretionary review, not en banc correction.

N.B.: Before you start me up on en banc, save error-correction disagreements for motions for panel rehearing (or a petition for review). Motions for en banc reconsideration should be limited for intra-court conflicts or true extraordinary circumstances. And if you decide to file such a motion, identify upfront those conflicts or extraordinary circumstances.

In re ExxonMobil Corp., No. 14‑25‑00446‑CV (Jewell, Wilson, Boatman, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court directed the trial court to grant ExxonMobil’s summary judgment on the plaintiffs’ negligence, gross negligence, premises‑liability, and intentional‑tort claims.

First, ExxonMobil established the Texas Workers’ Compensation Act’s exclusive‑remedy defense as a statutory employer under Labor Code § 406.123 via a Standard Procurement Agreement and OCIP coverage that named the subcontractor (Brown & Root) and listed the Baton Rouge Refinery as a covered site. The policy’s information page applied Texas workers’ compensation law, and the policy covered out‑of‑state injuries. A choice‑of‑law analysis was unnecessary because the plaintiffs failed to demonstrate a material conflict with Louisiana law affecting the outcome.

Second, on the intentional‑tort exception, the court held the plaintiffs offered no more than evidence of dangerous conditions and knowledge of risk. Under Supreme Court precedent, that is insufficient: The exception requires proof that the employer desired the injury or believed a particular injury to a particular employee was substantially certain. A “recipe for eventual disaster” doesn’t cut it; there must be a “direct causal chain” of knowledge is required.

Third—and what I found most notable—the court explained that mandamus was proper despite the general rule that erroneous denials of summary judgment are not reviewable by mandamus. Analogizing to In re Academy, where the Supreme Court granted mandamus to prevent the loss of immunity from suit, the Workers’ Compensation Act’s exclusive‑remedy provision likewise confers statutory immunity from common‑law tort claims that is “effectively lost if a case is erroneously permitted to go to trial.” Forcing ExxonMobil to defend through trial would defeat that immunity and upset the Legislature’s balancing of interests underlying the workers’ compensation system: compensating employees swiftly while shielding subscribing employers from the costs of tort litigation, an equilibrium the Supreme Court has repeatedly called essential to the Act’s success. Against that backdrop, the court held appeal inadequate and granted mandamus to prevent the erosion of the Act’s core protection.

N.B.: While summary-judgment denials generally are not candidates for mandamus review, ExxonMobil could act as a Gimme Shelter for mandamus petitions tied to immunity-based defenses—in particular, those tied to statutory immunity.

The Rolling Stones – Start Me Up – Vinyl (7", Single), 1981 [r5357704] | Discogs — **Start Me Up,** from *Tattoo You* (1981).

In Brief

1COA

Cubas v. Chinchilla, No. 01‑24‑00376‑CV (Guerra, Caughey, Dokupil, JJ.): Affirming in part and reversing in part, the First Court first dismissed the LLC’s appeal for lack of jurisdiction; only the individual filed a notice of appeal from the judgment. It reversed the mental‑anguish award and rendered $0, holding that the testimony did not establish the required nature, duration, and severity for mental‑anguish damages. But it affirmed the remainder of the judgment, finding a challenge to the judgment’s clarity waived for inadequate briefing.

In re Thomas, No. 01‑25‑00743‑CV (Adams, C.J., joined by Gunn, Guiney, Johnson, Dokupil, JJ.) (order): Concurring in the denial of en banc reconsideration, Chief Justice Adams urged the Supreme Court of Texas to close a gap in Texas Rule of Appellate Procedure 52 by expressly permitting en banc reconsideration in original proceedings. Although he noted that his Court—like other large appellate courts in the State—often receive and consider such motions despite the textual silence (unlike Rule 41), the Judiciary would benefit from a rules amendment explicitly allowing the practice.

Alexander v. The Woodlands Land Development Co., No. 01‑22‑00827‑CV (Guerra, Gunn, Morgan, JJ.): In a dispute arising from homes flooded during Hurricane Harvey, the First Court affirmed the grant of summary judgment in a substitute memorandum opinion. As to The Woodlands Land Development, the court declined to recognize a new negligence duty owed by a home developer to downstream purchasers and otherwise held that the plaintiffs failed to raise any fact issue concerning the element of breach under negligent‑undertaking principles. As to LJA Engineering and Bowles, the plaintiffs waived challenges by not adequately responding in their summary-judgment response, as well as their appellate brief. And as to Howard Hughes, the court affirmed on no‑evidence grounds not challenged on appeal.

Burnley v. Losack, No. 01‑24‑00178‑CV (Guerra, Caughey, Dokupil, JJ.): Dismissing for lack of jurisdiction, the First Court held that an unverified Rule 165a motion to reinstate did not extend appellate deadlines. The later verified motion was untimely, thus making the notice of appeal filed over two months after the DWOP to be late. Only a timely, verified reinstatement motion extends plenary power and the 90‑day filing period; otherwise, the 30‑day rule controls.

City of Houston v. De La Cruz, No. 01‑24‑00797‑CV (Rivas‑Molloy, Gunn, Caughey, JJ.): Affirming the trial court’s order, the First Court upheld the denial of a Rule 91a motion based solely on limitations. The court had interlocutory jurisdiction under Section 51.014(a)(8) of the Civil Practice and Remedies Code because limitations/service diligence are jurisdictional in suits against a governmental unit. But the dispute concerning the petition’s file stamp turned on facts outside the pleadings, which Rule 91a does not allow. The plaintiff's diligence likewise presented fact issues unsuitable for Rule 91a.

14COA

Allison v. Borunda, P.C., No. 14‑24‑00753‑CV (Bridges, Boatman, Antú, JJ.): Affirming the trial court’s confirmation of an arbitration award, the Fourteenth Court held (among other things) that the arbitrator satisfied the FAA’s “reasoned award” requirement. Adopting the First Court’s definition—a reasoned award is one “marked by the detailed listing or mention of expressions or statements offered as a justification of the decision”—the panel pointed to the arbitrator’s 25‑page Reasoned Interim Award: procedural history, credibility determinations, a summary of evidence, and nineteen specific findings followed by disposition. Because the award provided a discernible rationale—not merely a bare conclusion—the trial court properly confirmed the award.

In re Family Dollar Stores, Inc., No. 14‑25‑00668‑CV (Wilson, Hart, McLaughlin, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus, the Fourteenth Court held that portions of a discovery order compelling a company’s statewide/nationwide incident reports was overbroad—not reasonably tailored to time, place, or subject matter—and thus an abuse of discretion. It otherwise rejected the plaintiff’s waiver and unclean‑hands arguments.

Bellaire Kingtown, LLC v. Alegria Dental Care, PLLC, No. 14‑24‑00192‑CV (Wilson, Hart, Boatman, JJ.): Reversing and remanding, the Fourteenth Court set aside a no‑answer default judgment in a restricted appeal for defective service. Serving the registered agent’s spouse failed strict compliance. And counsel’s email “acceptance” was unsworn, so it did not satisfy Rule 119’s waiver requirements. As a result, error was apparent on the face of the record.

Balboa v. Texas Children’s Hospital, No. 14‑24‑00659‑CV (Wilson, Hart, McLaughlin, JJ.): In a case involving a hospital nurse’s refusal to comply with a hospital’s COVID-19 vaccination policies, the Fourteenth Court held that summary judgment on the nurse’s religious‑accommodation claim under Title VII and the Texas Commission on Human Rights Act was improper. As a matter of law, the Hospital did not negate the sincerity or religious nature of Balboa’s beliefs, which presented credibility questions. Nor did the Hospital’s evidence conclusively prove that granting an accommodation would present an undue hardship.

Hirsch v. City of Houston, No. 14‑24‑00536‑CV (Wise, Bridges, Antú, JJ.): Reversing and remanding, the Fourteenth Court held the trial court erred in granting the City’s plea to the jurisdiction. The court held that a police cadet can qualify as a “first responder” under Government Code § 421.095, thus allowing her workers’‑compensation retaliation claim. It next held that her TCHRA retaliation charge was timely as to post‑January 13, 2023 conduct. And finally, the court held that the TCHRA’s anti‑retaliation provision applies to an employer’s decision not to hire a prospective employee.

Cornucopia Oil & Gas, LLC v. Berry, No. 14‑25‑00071‑CV (Wise, Hart, Boatman, JJ.): Affirming the trial court’s denial of a defendant’s special appearance, the Fourteenth Court held the defendant consented to Texas jurisdiction. the Amended Joint Operating Agreement was expressly “subject to” the Assignment, whose Harris County forum‑selection clause controls over the JOA’s Delaware clause when they conflict. And because the plaintiffs’ claims arise under or relate to the Assignment, they were within that clause’s scope.

& Beyond

Time to flip the vinyl: 1910 on Side A, & Beyond on Side B.

SCOTUS

The Rolling Stones 45 RPM Tumbling Dice / Sweet Black Angel - Amazon.com Music — **Tumbling Dice**, from *Exile on Main St.* (1972).

Opinions

The Supreme Court issued another summary reversal, pushing its October Term 2025 count to three. (I talked about the first two in my latest post.)

Doe v. Dynamic Physical Therapy, LLC, No. 25-180 (reversing Court of Appeals of Louisiana): Does a State have power to confer immunity on a plaintiff’s federal causes of actions under state law?

Majority (per curiam): No. While “[d]efining the scope of liability under state law is the State’s prerogative,” a State “has no power to confer immunity from federal causes of action.” On remand, the Louisiana courts may decide whether the plaintiff’s federal claims fail based on federal law.

Justice Sotomayor also issued an opinion related to an order denying certiorari.

Davenport v. United States, No. 24-7435 (Fourth Circuit): Should the Court accept a late-filed petition for certiorari on whether the trial court erred in failing to provide a requested instruction defining “reasonable doubt” for a charge of murder under North Carolina law?

Majority (per curiam): Certiorari denied.
Concurrence (Sotomayor, J.): No. While the Court properly denies certiorari based on the lack of explanation for the untimely filing, the district court nonetheless erred in stating that “federal courts are ‘specifically prohibited from giving a definition of reasonable doubt.’” To the contrary, district courts are neither required nor prohibited from defining the term. While there may be some circumstances where providing a definition would be imprudent, courts should engage in a “careful consideration” of whether to include a definition for reasonable doubt based on, among others, whether an instruction risks confusing the jury or whether a definition was requested by the defendant.

Orders

In addition to its usual lists of denials, the Court’s tumbling dice resulted in a variety of interesting orders.

First, the Court issued two GVRs—summary grants, vacates, and remands.

Miller v. McDonald, No. 25-133 (reversing Second Circuit): Can states refuse to acknowledge religious exemptions to school vaccine requirements while simultaneously permitting secular exemptions? And should the Court’s holding in Employment Division v. Smith, 494 U.S. 872 (1990), be reconsidered?

Order (per curiam): Certiorari granted, judgment reversed, and case is remanded to the Second Circuit for reconsideration in light of Mahmoud v. Taylor, 606 U.S. 522 (2025) (governments may not burden religious exercise by conditioning public education on accepting certain instruction that may violate religious beliefs).

Holman v. Rollins, No. 24-1142 (reversing Sixth Circuit): Under the Equal Access to Justice Act’s standard for awarding attorney’s fees, may the federal government rely on its own litigation conduct to establish its position was “substantially justified” when its conduct is objectively unreasonable? And should this standard be influenced by the strict scrutiny standard applied to claims of racial discrimination?

Order (per curiam): Certiorari granted, judgment reversed, and the case is remanded to the Sixth Circuit for reconsideration in light of Lackey v. Stinnie, 604 U.S. 192 (2025) (“prevailing party” standard requires a court to conclusively resolve a plaintiff’s claims by granting enduring judicial relief on the merits that materially altered the legal relationship between the parties).

Second, the Court granted certiorari in one case.

Pitchford v. Cain, No. 24-7351 (Fifth Circuit): Under the standards set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), did the Mississippi Supreme Court unreasonably determine that a defendant waived his right to rebut the prosecutor’s asserted race-neutral reasons for exercising peremptory strikes against four black jurors?

Third, the Court next denied several stay applications—mostly in death cases, but also one from the Trump Administration.

Margolin v. National Association of Immigration Judges, No. 25A662 (Fourth Circuit): Should the Court stay the Fourth Circuit’s mandate that would send a dispute over a policy governing speaking engagements by immigration judges back to a federal district court for factfinding?

Order (per curiam): Stay denied, on the basis that the Government had not demonstrated it would suffer irreparable harm without a stay. The Court specifically indicated the order was without prejudice to reapplication for a stay if the district court commenced discovery before disposition of the Government’s forthcoming certiorari petition.

And finally, the Court called for the views of the Solicitor General in two cases.

Doe v. Hochul, No. 24-1015 (Second Circuit): Does an employer suffer an undue hardship to provide reasonable accommodations for religious beliefs under Title VII if providing the accommodations would directly contradict state law? And is a state law requiring employers to deny all employee requests for religious accommodations preempted by Title VII and the Supremacy Clause?

Crowther v. Board of Regents, No. 25-183 (Eleventh Circuit): Does Title IX provide employees of federally funded educational institutions a private right of action to sue for sex-based discrimination?

SCOTX

Brown Sugar': The Story Behind The Rolling Stones' Song — **Brown Sugar,** from *Sticky Fingers* (1971).

Opinions

Meanwhile, in Austin, the Supreme Court of Texas served up a mini Beggars Banquet: one opinion from its argument docket and one summary, per curiam reversal.

Third Coast Services, LLC v. Castaneda, No. 23-0848 (reversing Fourteenth Court): Is contractual privity with the Texas Department of Transportation required for a contractor to properly invoke a defense from liability for damages under Section 97.002 of the Texas Civil Practice and Remedies Act?

Majority (Huddle, J., for unanimous Court)1: No. Section 97.002 precludes liability against contractors who construct or repair a thoroughfare “for the Texas Department of Transportation.” Unlike other parts of the Code, Section 97.002’s text nowhere limits its application to contractors hired directly by the Department of Transportation (unlike in other parts of the Code). Nor does the text require the contracted work to be done solely for the Department of Transportation to the exclusion of all other employers. And while the Court declined to set a brightline rule in cases where the work was done for multiple entities (including the Department of Transportation), it held that the contracted work in the case was done for the Department of Transportation because it was the entity that would ultimately assume responsibility for and control over the road.

Burke v. Houston PT BAC Office Limited Partnership (Bank of America), No. 24-0135 (reversing First Court) (no oral argument): In a challenge to a real-estate appraisal, if a party communicates with a potential neutral appraiser and considers hiring him, must those communications be disclosed to the other party before selecting a neutral appraiser?

Majority (per curiam)2: Yes. Applying impartiality principles from arbitration law, the Court concluded that communications between a party and a potential appraiser involving the pending matter and the potential appointment of the appraiser as a neutral arbitrator was a material statement of potential bias. Because the First Court improperly found such communications did not need to be disclosed because they were non-substantive, the Court reversed the trial court’s order confirming the appraisal valuation while leaving the remainder of the court of appeals’ judgment intact.

Orders

Aside from its customary orders denying of petitions and motions, the Court granted two petitions for review, with oral argument set for February 2026:

Spectrum Gulf Coast, LLC v. City of San Antonio, No. 24-0794 (Thirteenth Court)3: Did the court of appeals err in holding that the municipal utility’s illegal conduct in charging discriminatory rates nevertheless did not breach the parties’ 1984 agreement?

Aldaco v. Wood, No. 24-1069 (Second Court): Did the court of appeals err in affirming summary judgment based on its conclusion that the limitations provision of the Texas Medical Leave Act displaces the default legal-injury rule for purposes of determining when a claim accrues?

The Court also dismissed one original proceeding on the oral-argument docket—In re State Farm Mutual Mobile Insurance Company, No. 24-0786—based on the parties’ settlement.

CA5

Street Fighting Man / Everybody Needs Somebody to Love by The Rolling Stones (Single; Decca; DL 25 470): Reviews, Ratings, Credits, Song list - Rate Your Music — **Street Fighting Man**, from *Beggars Banquet* (1968).

Orders

Before turning to the opinions, two orders stood out—not just because both involved denials of en banc rehearing, but because they drew unusually vigorous separate writings.

The first, ExxonMobil Research & Engineering Company v. National Labor Relations Board, No. 23-60495, followed a panel opinion upholding the NLRB’s reopening and vacatur of a prior Board order; the full court denied rehearing en banc by a 4–13 vote. The second, Hershey v. Bossier City, No. 21-30754, arose from a fractured panel opinion addressing qualified immunity and Monell municipal liability over restrictions on leaflet distribution; rehearing en banc was denied by a 7–10 vote.

What made both orders notable was the dueling opinions from Judges Ho and Oldham—jurists widely mentioned in national conversations about future Supreme Court nominees under a Republican administration. In each case, Judge Ho concurred in the denial of rehearing en banc, while Judge Oldham dissented from the denial.

If the ExxonMobil writings read as a familiar—if forceful—concurral-versus-dissental exchange, the tone in Hershey felt sharper. A few representative lines from Judge Ho’s concurral (emphases added):

My two responses to their question/offer: It’s deeply disingenuous. But I happily accept.
So they can theorize all they want that I somehow secretly like what happened in Villarreal. But personally, I don’t think it passes the laugh test. . . . I regret the increasing lack of candor that has come to pervade our court’s en banc proceedings of late.
Judicial opinions should be read charitably. But I struggle to see how our dissenting colleagues haven’t reversed themselves on qualified immunity under Villarreal and Morgan—or on whether Monell applies when there’s been no training whatsoever—or on what government actions threaten religious liberty. If I was one of the religious liberty groups who devotes their God-given talents, time, and treasure to advocating for folks like Spring Siders, Gabriel Olivier, Richard Hershey, and Priscilla Villarreal, I’d wonder why they’re being accused of misrepresenting this court’s precedents and fabricating religious liberty threats out of thin air. I’d also wonder about the unexplained changes of position that they’ve seen from this court.

And now, from Judge Oldham’s dissental (emphases added):

This quixotic effort [the concurral] does nothing to justify the panel’s badly splintered, three-judge-four- opinion approach to this case. And while it tilts at windmills that appear nowhere in this case, it does nothing to justify our court’s refusal to reconsider the matter en banc.
Finally, a word about the religious-liberty implications of this case. Judge Ho says the court was correct to deny rehearing in this case because doing so protects “the right to spread the gospel in public spaces.” . . . Again, this assertion is bizarre.
At the end of the day, my concurring colleague presents an imaginary case that implicates persecuted Christians in Rome, “religious liberty,” and the “ancient tradition” of street preaching, . . . rather than the facts of this case. He reads our precedent to create catastrophic consequences for religious liberty—and then says we should retain that horrible precedent and embrace the horrible consequences. And then he turns Monell upside down and celebrates a new failure-to-train theory that will benefit hardened criminals and saddle political subdivisions in every § 1983 case. You have to wonder what’s driving all of these gymnastics. I would have granted en banc rehearing to figure it out.

As the Stones might say, “Summer’s here and the time is right for fighting in the street.” But apparently in the Fifth Circuit, the holidays are the right time for verbal brawls in separate opinions.

Opinions

Now, onto the Cool, Calm, and Collected opinions from the Circuit.

Town of Vinton v. Indian Harbor Ins. Co., No. 24‑30035 (Haynes, Ho, Oldham, JJ.): Affirming the district court’s refusal to compel arbitration, the Fifth Circuit held that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not apply after the foreign insurers were dismissed from the case. A “separate contract” endorsement created separate agreements with each insurer, leaving no foreign party to the arbitration clause. Equitable estoppel cannot override Louisiana statutory law. And the agreement’s delegation clause cannot be invoked absent a valid agreement under state law.

Baylor All Saints Med. Ctr. v. Kennedy, No. 24‑10934 (Jones, Stewart, Ramirez, JJ.): Reversing and remanding, the Fifth Circuit held that the hospitals’ challenge to the Department of Health and Human Services’ August 2023 rule on Disproportionate Share Hospital payments must be channeled through the Medicare presentment/exhaustion scheme. Absent compliance with this scheme, the district court lacked jurisdiction to act on the hospitals’ challenge to the rule.

MIECO L.L.C. v. Targa Gas Marketing L.L.C., No. 23‑20567 (Elrod, C.J.; Higginbotham; Southwick, JJ.): In this Winter Storm Uri contract dispute, the Fifth Circuit reversed the district court’s partial summary judgment excusing Targa’s non‑delivery of natural gas under a force majeure clause, holding that “Seller’s gas supply” under the NAESB form can include the seller’s usual sources—potentially spot‑market purchases if routinely used—and that Targa must show the extent of any actual loss of supply and whether it made reasonable efforts to avoid adverse impacts. Economic hardship alone won’t excuse performance. The court also affirmed the jury’s verdict in favor of MIECO that, for partial deliveries to the same customer under both a fixed First‑of‑Month and a variable Gas Daily contract, industry usage of trade requires allocating volumes to the FOM first before any Gas Daily billing. Section 2.615’s “fair and reasonable” allocation among customers did not displace that practice, and the jury instructions otherwise were proper.

Ethridge v. Samsung SDI Co., No. 23‑40094 (King, Jones, Oldham, JJ.): Granting a petition for panel rehearing, the Fifth Circuit reversed its prior opinion and affirmed the district court’s dismissal for lack of personal jurisdiction. Relying on a recent Seventh Circuit case (Myers), the Court held that that Samsung’s structured, limited forum contacts—vetting customers, rejecting purchasers tied to the e‑cigarette industry, and warning against consumer use—defeated the plaintiff’s attempt to establish personal jurisdiction in Texas. Notably, the Court did so by “hunting through the record before us” to find those facts. Its justification: “It hardly seems economical to invest en banc or certiorari resources to address a circuit split where our panel majority opinion turned on counsel’s failure to alert us to facts lying dormant in the record.”

Mertens v. Benelux Corp., No. 24‑50954 (Dennis, Graves, Duncan, JJ.): Affirming the district court’s refusal to compel arbitration, the Fifth Circuit held that an arbitration agreement’s “by signing” clause and dual signature blocks made both parties’ signatures a condition precedent to execution under Texas law. Because the employer did not sign the agreement here, it was unenforceable.

Cloud v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, No. 25‑10337 (Clement, Graves, Ho, JJ.): Reversing the district court’s award of attorneys’ fees, the Fifth Circuit held that attorney’s fees under 29 U.S.C. § 1132(g)(1) require some degree of success on the merits. A purely procedural victory—one where the litigant merely obtained favorable factual findings, but not a substantive win—cannot support a fee award.

Aramark Services Inc. Group Health Plan v. Aetna Life Ins. Co., No. 24‑40323 (Higginbotham, Jones, Southwick, JJ.): Did the district court correctly (1) retain the threshold decision on arbitrability under a clause with an equitable‑relief carve‑out and (2) treat a plaintiff’s ERISA fiduciary‑breach claims as seeking equitable relief, thus outside the scope mandatory arbitration?

Majority (Higginbotham, J., joined by Southwick, J.): Yes and yes. First, the equitable‑relief carve‑out defeats a “clear and unmistakable” delegation of arbitrability to the arbitrator, notwithstanding the agreement’s incorporation of AAA rules. As a result, the court—not an arbitrator—decides arbitrability. Second, the plaintiff’s claims are equitable in nature: They seek equitable surcharge/make‑whole relief against a fiduciary, not legal damages from non‑fiduciaries.
Concurrence in Part and Dissent in Part (Jones, J.): Yes and no. While the district court properly retained the threshold decision on arbitrability, the plaintiff’s claims—which ultimately seek monetary damages—are not “typical equitable relief.” Other circuits’ contrary precedent is incorrect.

15COA

Finally, a quick update from our statewide court of appeals—one cut to spin before we Paint It Black.

Paint It Black - song and lyrics by The Rolling Stones | Spotify

Opinion

Carson v. Blue Cross Blue Shield of Texas, Inc., No. 15‑24‑00108‑CV (Brister, C.J.; Field, Farris, JJ.): In a substitute memorandum opinion, the Fifteenth Court affirmed the trial court’s grant of various defendants’ pleas to the jurisdiction in a healthcare-insurance dispute. First, the plaintiff failed to preserve her motion to compel discovery by not obtaining a ruling. Second, the Uniform Declaratory Judgments Act not waive TRS’s sovereign immunity, and the plaintiff did not plead an alternative pathway through the Administrative Procedures Act. Third, BCBSTX and its employees were protected by derivative sovereign immunity as third‑party administrators of the state‑funded plan. As a result, dismissal with prejudice was proper.

Red Light

And now, it’s finally time to let it bleed into the holidays . . .

John Pasche’s original design of the Tongue and Lips logo (1971).

As always, I welcome your feedback and suggestions for 1910 & Beyond. I’m always grateful for your comments and emails—keep them coming.

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