26-03: Zichronam Livracha
A look back to the weeks of January 19 and 26, in blessed memory
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!
Opening Statement
Many readers know that, before joining my current firm, I spent several years at Arnold & Itkin LLP, where I created and led the firm’s appellate practice. Although I no longer work there, I remain in close contact with many people at the firm—people who were more than colleagues and who remain my friends.
So when I learned last Sunday evening of the horrific crash involving an Arnold & Itkin jet, my heart sank. I didn’t know most aboard. But I did know Tara Arnold—not just as a member of the firm, but also as the wife of a friend whom I worked closely beside for years, and as the mother of two young children. For as awful as I have felt the past week, it is nothing compared to what the victims’ loved ones are enduring.
I have been deeply touched by those who, knowing my connection to the firm, have reached out with kindness and condolences. Thank you. I hope you will continue to keep the victims’ families—and everyone in the Arnold & Itkin family—in your prayers and in your hearts.
This post is dedicated to Tara, and to all who lost their lives in the crash. Zichronam livracha—may their memories be for a blessing.
1910
Orders and Opinions
And now, 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.
Features
Pfeiffer v. Berg, No. 01-24-00242-CV (Rivas-Molloy, Gunn, Caughey, JJ.): This highly publicized breach-of-contract wage dispute between a former associate and his former law firm went to a jury on a single gateway question: whether the parties agreed to an employment contract requiring payment beyond September 2018. The jury answered “No,” leaving the remaining breach-and-damages questions unanswered. The First Court affirmed across the board—including rejecting post-trial challenges to the denial of summary judgment, discovery rulings, evidentiary complaints, charge complaints, and recusal issues—while also affirming the trial court’s denial of the firm’s requested sanctions on cross-appeal.
But the more important writing here is Justice Gunn’s concurrence, which is a charge-conference cautionary tale about conditional submissions. Assuming (for argument’s sake) that the associate was right about contract formation, Justice Gunn explained why affirmance still followed from the structure of the charge: The jury was told to reach breach and damages only if it answered “Yes” to the agreement question; once the jury answered “No,” the follow-up blanks stayed empty, and—absent a proper objection to the conditional submission—those unanswered issues are treated as omitted and become matters the trial judge may supply (or that are deemed found) under Texas Rule of Civil Procedure 279.
Justice Gunn grounded that point in decades of Texas precedent: When a party permits an improper (or risky) conditional submission without objection, the party waives the right to have the jury answer the conditioned issues and likewise waives the benefit of favorable answers; Rule 279’s gap-filling presumptions then operate to support the judgment. His practical message is simple and blunt: conditional submission can streamline trials, but it has real downstream consequences—especially when the “trigger” question involves an undisputed fact or a point that is likely to be attacked as a matter of law after the verdict.
N.B.: If you need jury findings on a particular question, don’t let them be held hostage to a questionable trigger question—object to the conditioning and request a clean submission. Otherwise, Rule 279 may convert your “unanswered” jury issues into judge findings (or deemed findings) that may be impossible to unwind on appeal, even with a gateway error.
In re Dolcefino Communications, LLC, No. 14-25-01040-CV (Christopher, C.J.; Jewell, Bridges, JJ.) (orig. proceeding): This is Dolcefino Media’s second mandamus proceeding seeking access to records that remain sealed in a divorce case. After the Fourteenth Court previously held the trial court had jurisdiction to consider Dolcefino’s intervention and motion to unseal, the trial court conducted a Zoom hearing and then unsealed the signed orders but otherwise refused to unseal docket entries, transcripts of public hearings, hearing notices, and pleadings for relief—without stating reasons.
Conditionally granting mandamus in part, the Fourteenth Court held the trial court abused its discretion by denying access to presumptively public categories of court records without first balancing the relevant competing interests and by failing to clearly articulate its reasons on the record for continued sealing. The court directed the trial court to vacate the prior order to the extent it denied access to the specified categories and to conduct the required balancing—and, if it continues sealing any category, to explain why. But it declined on the current record to issue broader prospective relief about future closures, though noting that compliance under Texas Rule of Civil Procedure 21d is mandatory.
N.B.: If you’re litigating access to court records outside Rule 76a’s procedures, build your record around the balancing requirement and insist that any continued sealing be supported by stated reasons sufficient for appellate review. And if you represent the party seeking to maintain the seal, be prepared to articulate concrete privacy/confidentiality interests tied to specific categories of records. No reasons given is an invitation for a mandamus petition.
In Brief
1COA
Fisher v. Pine Village North Association, No. 01-24-00183-CV (Guerra, Guiney, Johnson, JJ.): Did the Fishers preserve (and properly brief) a challenge to the homeowners’ association’s ability to sue given their unverified pleadings?
Majority (Guerra, J., joined by Guiney, J.): No. The Fishers’ arguments—though framed as “standing”—were actually challenges to the HOA’s capacity to sue. Those challenges are nonjurisdictional and must be raised by a verified denial under Texas Rule of Civil Procedure 93. Because the Fishers’ “verified denials” were not actually verified, and their verified Rule 12 motions to show authority did not substitute for a Rule 93 verified pleading, the court concluded the capacity issue was waived and affirmed.
Concurrence (Johnson, J.): No. Justice Johnson would affirm on a narrower ground: The Fishers did not show reversible error in the trial court’s finding that they failed to present sufficient evidence of the HOA’s lack of capacity, particularly where they did not argue on appeal that the court improperly shifted the burden or explain why their evidence was conclusive. In his view, that failure mooted the need to decide waiver via Rule 93.
George v. Barbers Hill Independent School District, No. 01-24-00789-CV (Rivas-Molloy, Gunn, Caughey, JJ.): Vacating the trial court’s judgment and dismissing for lack of jurisdiction, the First Court held that an appeal concerning the CROWN Act became moot after the student withdrew from the district, graduated from a different district, and therefore could no longer be subject to the challenged grooming policy. The court rejected the collateral-consequences argument because the harms identified (educational and emotional effects, stigma, and potential future record impacts) were not shown to stem from the trial court’s judgment or to persist notwithstanding vacatur, and any asserted future impacts were largely speculative. The court also concluded attorneys’ fees did not keep the controversy alive because the trial court awarded none and neither side appealed any fee ruling.
Smith v. Casey Lending, LLC, No. 01-22-00954-CV (Rivas-Molloy, Gunn, Caughey, JJ.): In a bill-of-review posture arising from a delinquent-tax foreclosure, did the trial court properly dispose of Smith’s case by summary judgment—both by dismissing her added counterclaims/third-party claims and by granting judgment on Casey Lending’s foreclosure theory?
Majority (Rivas-Molloy, J., joined by Gunn and Caughey, JJ.): Yes and no. The court dismissed Smith’s counterclaims against Casey Lending and her third-party claims against Phan for lack of jurisdiction, holding that a bill of review does not revive the trial court’s plenary power to entertain new claims (even though the bill of review itself could proceed despite being misfiled under the original cause number). But the court reversed summary judgment for Casey Lending on the merits: Smith’s deed was legally effective (giving her standing to challenge foreclosure) and that, under Tax Code § 32.06 and controlling authority, a co-tenant cannot unilaterally authorize a tax-lien transfer/foreclosure that reaches another co-tenant’s undivided interest. As a result, Casey Lending was not entitled to judgment as a matter of law on statutory subrogation against Smith’s share.
Concurrence (Gunn, J.): Yes and no. This case highlights a broader doctrinal problem in Texas bill-of-review law. Older Texas Supreme Court precedent required a party to exhaust the six-month writ-of-error/restricted-appeal remedy (or explain why not) before pursuing equitable bill-of-review relief. But a more recent decision—Gold v. Gold—cuts the other way. That conflict may have been fueled by incomplete briefing in that case, which missed earlier controlling authorities. Justice Gunn endorsed the older rule’s policy foundations to finality and exhaustion, but feeling bound by the more recent Supreme Court opinion, he joined the majority’s resolution. He urged better advocacy before the Supreme Court “as it plots the wisest future course for all of us.”
14COA
Dyer v. Sanchez, No. 14-24-00572-CV (Christopher, C.J.; Wise, McLaughlin, JJ.): Affirming the trial court’s judgment in a property dispute, the Fourteenth Court upheld a traditional summary judgment declaring Sanchez a bona fide purchaser for value and quieting title in his favor after Dyer’s attorney-in-fact sold Dyer’s home through a chain of recorded deeds. The court concluded the durable power of attorney and the affidavit of non-revocation were facially sufficient to support good-faith reliance, and nothing in the transaction (including same-day resale, missing co-agent signature, or page-numbering anomalies) put Sanchez on actual or constructive notice requiring further inquiry. It also rejected Dyer’s below-market-value theory as insufficient to create a fact issue on “value” and held Dyer waived any complaint about the severance order by failing to object in the trial court.
Graybar Electric Company, Inc. v. Buying Power, Inc., No. 14-24-00683-CV (Christopher, C.J.; Boatman, Antú, JJ.): Affirming the judgment on a jury verdict for Buying Power, the Fourteenth Court rejected Graybar’s challenges to lost-profits damages, contract enforceability, and attorney’s fees arising from a failed group-purchasing agreement. The court held the damages expert’s key assumptions were supported by legally sufficient evidence—particularly that Graybar would have accepted member orders submitted through the program and could not unilaterally change pricing to avoid the agreement’s economics—so the jury’s lost-profits award stood. It also rejected Graybar’s “illusory contract” argument (including reliance on member terms that never became operative because Graybar refused to enroll members) and upheld the fee award under Rohrmoos principles, including projected trial-and-judgment fees and contingent appellate fees supported by expert testimony.
In re Quintero, No. 14-25-00757-CV (Christopher, C.J.; Wise, Jewell, JJ.) (orig. proceeding): Conditionally granting mandamus, the Fourteenth Court held that the trial court abused its discretion by compelling depositions of Section 18.001 counteraffiants who were consulting experts—not fact witnesses, not designated testifying experts, and not reviewed by the defense’s testifying expert. The court concluded that merely serving counteraffidavits to controvert medical-billing affidavits does not waive the consulting-expert privilege or otherwise make the counteraffiants discoverable by deposition, particularly where Section 18.001 is procedural and focused on streamlining proof rather than testing expert reliability.
Arguments
The First and Fourteenth Courts continue their steady pace of arguments.1
1COA
DePina v. Gibson, No. 01-24-00316-CV (Guerra, Caughey, Dokupil, JJ.): In a legal-malpractice case, did the trial court properly grant summary judgment based on the statute of limitations?
Appellant: David Kassab (Kassab Law Firm)
Appellee: Parth Gejji (Beck Redden)
Argument: February 5 at 1:30 pm
Franklyn v. State, No. 01-24-00686-CR (Adams, C.J.; Gunn, Johnson, JJ.): Did the trial court abuse its discretion in admitting a defendant’s prior conviction under Texas Rule of Evidence 609(b) while excluding the complainant’s prior conviction for lying to a prior conviction—and, more specifically, should the Court adopt a “contextual credibility factors” test for applying Rule 609(b)?
Appellant: Stephen Aslett (The Aslett Law Firm)
Appellee: Nathan Farmer (Harris County District Attorney’s Office)
Argument: February 10 at 1:30 pm
AEM Construction LLC v. Hill, No. 01-24-00158-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Many issues arising from a $1 million jury verdict in favor of a homeowner in a construction-defect lawsuit—including whether noneconomic damages are allowed under the Residential Construction Liability Act.
Appellants: Jonathan Stoger (Stoger Law Firm)
Appellee: Courtney Hill, Esq.
Argument: February 11 at 1:30 pm
14COA
Pham v. State, No. 14-24-00295-CR (Christopher, C.J.; Hart, Antú, JJ.): Among other things, does the Double Jeopardy Clause prohibit a jury from correcting an erroneous verdict before its discharge?
Appellant: Stephen Aslett (The Aslett Law Firm)
Appellee: Ryan Kent (Harris County District Attorney’s Office)
Argument: February 3 at 2 pm
Rodriguez v. Eaton, No. 14-25-00379-CV (Christopher, C.J.; Hart, Antú, JJ.): Did the trial court abuse its discretion in denying a temporary injunction to prevent the defendants from selling or otherwise disposing of the plaintiff’s sole operating asset?
Appellant: Robert Clements (Robert Clements, Jr. Law Group)
Appellees: Andrew Holland (Wilson, Elser, Moskowitz, Edelman & Dicker)
Argument: February 3 at 2 pm
Handley v. Spec’s Family Partners Ltd., No. 14-25-00162-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court properly grant the defendant’s Rule 91a motion in a premises-liability dispute?
Appellant: Jeremy Romoser (Haney Paschal & Romoser)
Appellee: Keith Jefferson (Meaders & Alfaro)
Argument: February 5 at 2 pm
Centerline Logistics Corp. v. Bouldin, No. 14-25-00219-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court err in denying the defendant’s motion to compel arbitration arising from a seaman’s personal-injury lawsuit?
Appellant: Daryl Moore (AZA)
Appellee: Matthew Kita, Esq.
Argument: February 5 at 2 pm
Jordan v. State, No. 14-24-00860-CR (Wise, Hart, Boatman, JJ.): Twenty-two (!) issues arising from a defendant’s capital-murder conviction.2
Appellant: George Secrest (Bennett & Secrest)
Appellee: Alan Curry (Galveston County Criminal District Attorney’s Office)
Argument: February 11 at 10 am
& Beyond
SCOTUS
In the Nation’s capital, the Supreme Court of the United States has begun to pick up its opinions pace.
Opinions
The Court issued three merits opinions, and one summary reversal:
Coney Island Auto Parts Unlimited, Inc. v. Burton, No. 24-808 (Sixth Circuit): Does Federal Rule of Civil Procedure 60’s requirement that a request for relief from final judgment be made within a reasonable time apply to motions seeking relief from void judgments?
Majority (Alito, J., joined by Roberts, C.J.; Thomas, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson, JJ.): Yes. Rule 60(c)(1) expressly provides that motions brought “under Rule 60(b) must be made within a reasonable time,” and a motion for relief from a void judgment is governed by Rule 60(b)(4). Nothing in the Due Process Clause or a similar “principle of law” permits a party to challenge the voidness of a judgment at any time. And by imposing a reasonable time requirement rather than a strict time requirement, Rule 60 remains flexible enough to account for default-judgment defendants who, through insufficient service, do not learn of an adverse judgment until the plaintiff seeks to execute on the judgment.
Concurrence in Judgment (Sotomayor, J.): Though the majority reaches the correct result, it “unnecessarily opines” on the merits of a constitutional challenge to Rule 60’s “reasonable time limit” under the Due Process Clause. The argument was neither raised nor fully considered below, and Coney Island expressly disclaimed any due-process argument before the Supreme Court.
Ellingburg v. United States, No. 24-482 (Eighth Circuit): Is restitution required under the Mandatory Victims Restitution Act of 1996 a “criminal punishment” for purposes of the Ex Post Facto Clause?
Majority (Kavanaugh, J., for unanimous Court): Yes. Multiple features of the MVRA demonstrate restitution is a criminal punishment: The restitution regime is codified in Title 18 (which governs “Crimes and Criminal Procedure”); restitution is characterized as a “penalty” for a criminal “offense” in the statutory text; restitution is imposed at a sentencing proceeding where the Government is the adverse party to the defendant; and restitution is part of a defendant’s sentence. This conclusion is buttressed by Supreme Court precedent, and MVRA’s intent to compensate crime victims—a nonpunitive goal—exists alongside its intent to impose punishment.
Concurrence (Thomas, J., joined by Gorsuch, J.): Under Calder v. Bull (1798), the Ex Post Facto Clause covered laws that applied “punishment” for a “crime,” which at the time “would have been understood to refer to any coercive penalty for a public wrong.” Under this understanding, “[m]any laws that are nominally civil” today would be subject the Ex Post Facto clause. The Court should return to this approach: The current approach relies on multifactor tests, is incongruous with the historical purpose of the Ex Post Facto clause, and is unnecessarily convoluted.
Berk v. Choy, No. 24-440 (Third Circuit): Does a state law requiring plaintiffs to submit, with a complaint, an affidavit from a medical professional attesting to the merits of a medical-malpractice suit apply in federal court?
Majority (Barrett, J., joined by Roberts, C.J.; Thomas, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, JJ.): No. Federal Rule of Civil Procedure 8 merely requires a plaintiff to provide “a short and plain statement of the claim showing that he is entitled to relief.” A state law requiring a party to produce evidence at the pleading stage through a medical affidavit conflicts with this rule. Under the Rules Enabling Act, the federal rule displaces contrary state law.
Concurrence in the Judgment (Jackson, J.): No, but the relevant rules are Rules 3 and 12. Rule 3 provides that a “civil action is commenced by filing a complaint with the court,” precluding any contention that an affidavit is also required. And Rule 12 prohibits courts from considering matters outside of the pleadings in ruling on motions to dismiss, which necessarily includes an attached affidavit.
Klein v. Martin, No. 25-51 (Fourth Circuit): Did the court of appeals err by failing to apply deference under the Antiterrorism and Effective Death Penalty Act when granting habeas relief on a state court’s Brady materiality determination?
Majority (per curiam): Yes. Summarily reversing, the Court held AEDPA required deference to Maryland’s determination that the undisclosed impeachment report was not Brady‑material. It criticized the Fourth Circuit for demanding a more “nuanced” state-court discussion and for recasting the state court’s analysis as sufficiency review. Given the remaining DNA and circumstantial evidence, the Court concluded fairminded jurists could agree the report would not have changed the verdict.
Justice Jackson would deny the petition.
Meanwhile, Justice Jackson issued one opinion dissenting from the dismissal of a prisoner’s in forma pauperis petition:
Howell v. Circuit Court of Indiana, No. 25-557 (Supreme Court of Indiana): Should the petitioner—a pro se prisoner—be permitted to request a writ of certiorari without paying docketing fees or submitting its brief in compliance with Supreme Court rules?
Order (per curiam): No. The Court denied the petitioner leave to proceed in forma pauperis under Rule 39.8, dismissed the petition, and directed the Clerk not to accept further petitions from the petitioner unless he pays the docketing fee and complies with the formatting rule. The Court cited the petitioner’s repeated abuse of the Court’s process, invoking Martin v. D.C. Court of Appeals as authority for the prospective filing restriction.
Dissent (Jackson, J.): Yes. Categorical forward-looking filing bars are especially intolerable for indigent prisoners because they can block future meritorious claims—including habeas challenges based on changes in law or constitutional claims about prison conditions. Howell’s filing history (six petitions over fourteen years) is nothing like the flood of filings in the Court’s early “Martinizing” cases, and the administrative burden of screening prisoner filings is minimal compared to the cost to access and equal justice.
Orders
Among the Court’s routine orders, it granted certiorari in one case:
Salazar v. Paramount Global, No. 25-459 (Sixth Circuit): Does the term “goods or services from a video tape service provider” as used in the Video Privacy Protection Act refer to all services provided by a video tape service provider, or only to its audiovisual goods and services?
The Court also GVR’ed two cases—one as moot, and one under Ellingburg—and denied a stay in a capital case from Texas.
Arguments
The Court resumes oral arguments on February 23.
SCOTX
In Austin, the past two weeks have been relatively quiet for the Supreme Court of Texas.
Opinions
The Court issued one opinion from its merits docket:
Morrison v. Morrison, No. 24-0053 (Twelfth Court): Did the trial court exceed its jurisdiction by redistributing community property in accordance with a divorce decree after one spouse failed to properly maintain community property?
Majority (Bland, J., for unanimous Court): Yes and no. The trial court generally had jurisdiction to enforce the decree and to award damages from the decree’s breach. But it erred in reallocating the marital estate based on proceeds of a sale of community property without first determining the property’s fair market value, as the divorce decree required, thus exceeding its authority.
And Justice Young continued his prolific streak of separate orders-related writings, concurring in the denial of a petition for review:
Gardens of Connemara, Ltd. v. Longhorn Creek Ltd., No. 24-0271 (Fifth Court): Should the Court grant review from the Fifth Court’s reversal of an order granting motion to dismiss under Texas Rule of Civil Procedure 91a by refusing to consider exhibits appended to the pleading?
Majority (per curiam): Summarily denied.
Concurrence (Young, J.): No. To be sure, the Fifth Court probably erred: Rule 91a requires courts to consider, along with the pleadings, “all other written instruments constituting, in whole or in part, the claim sued on.” The court of appeals thus should have considered notices attached as pleading exhibits when the claims turned, at least in part, on whether the attached notices facially met statutory requirements. But review was nonetheless inappropriate because of other issues presented by the petition; the Court should instead await a cleaner vehicle for addressing this important question.
Orders
Aside from its customary orders lists consisting of the usual denials of petitions for review and writs of mandamus, the Court granted four petitions for review, with oral argument set for March 2026:
MV Transportation, Inc. v. GDS Transport, LLC, No. 24-0924 (Fifth Court): Did the trial court err in granting a motion to dismiss under Rule 91a by looking beyond the pleadings and in finding defendant was entitled to derivative governmental immunity?
River Creek Development Corporation v. Preston Hollow Capital, LLC, No. 24-1070 (Third Court): Was a development company required to obtain Attorney General approval of transaction documents related to the public improvement district under Transportation Code Section 431.071? And were certain instruments contrary to the Public Improvement District Act?
Gopalan v. Marsh, No. 25-0161 (Third Court): Did the trial court’s order imposing conditions on a named conservator’s custodial rights contravene the Texas Constitution, the Texas Family Code, and the underlying jury verdict?
Champion Food Service, Inc. v. ProAlamo Foods, L.L.C., No. 25-0297 (Fourth Court): Did the trial court err in instructing the jury on quantum meruit and subsequently rendering judgment and awarding fees on that theory?
Arguments
The Court’s next slate of arguments begins the week of February 9.
February 10
Paxton v. City of Austin, No. 24-1078 (Fifteenth Court): Did the Fifteenth Court err in concluding that it lacked appellate jurisdiction to consider an interlocutory appeal for a grant or denial of a plea to the jurisdiction pressed by a governmental unit when the trial court expressly declined to rule on the plea to the jurisdiction?
Petitioner: William Cole (Office of Texas Attorney General)
Respondent Austin Transit Partnership Local Government Corporation: Elliot Clark (Winstead)
Respondent City of Austin: Paul Trahan (Norton Rose Fulbright US)
Justice Sullivan is not participating in this case.
In re Ace American Insurance Co., No. 25-0461 (Fifth Court): In this original proceeding, did the trial court abuse its discretion in denying a motion to compel appraisal when appraisal was contended to have been required under an insurance policy?
Relators: Charles Frazier (Alexander Dubose & Jefferson)
Real Parties in Interest: Peter D. Laun (Jones Day)
Staub v. BBVA USA, No. 24-1057 (Third Court): Under Article XVI, Section 50 of the Texas Constitution, may a borrower seek a forfeiture of all principal and interest if a lender breaches any obligation under a home-equity loan agreement, or must the breach be of a constitutionally enumerated obligation?
Petitioner: Don Colleluori (Figari + Davenport)
Respondent: Anne Johnson (Tillotson Johnson & Patton)
February 11
Spectrum Gulf Coast LLC v. City of San Antonio, No. 24-0794 (Thirteenth Court): Did the court of appeals err in holding that the municipal utility’s illegal conduct in charging discriminatory rates was not in breach of an agreement between the parties?
Petitioner: Douglas Alexander (Alexander Dubose & Jefferson).
Respondent: David Brown (Ewell Brown Blanke & Knight)
Aldaco v. Wood, No. 24-1069 (Second Court): Did the court of appeals err in granting 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?
Petitioner: John Ramer (Cooper & Kirk)
Respondent: William Newman (Chamblee Ryan)
In re Searcy, No. 25-0098 (Fifth Court): Did the trial court err in compelling the disclosure of communications purportedly protected by the attorney-client privilege?
Relator: Alan Daughtry (Alan Daughtry Law)
Real Party in Interest: Chad Baruch (Johnston Tobey Baruch)
There is a pending motion to cancel oral argument.
February 12
Laboratory Corporation of America Holdings v. State, No. 25-0127 (First Court): Does Subsection (2) of the Texas Medicare Fraud Prevention Act require proof of materiality, and can the State survive summary judgment on materiality grounds when it allegedly paid a defendant’s claims for years with knowledge of the alleged fraud and offered no proof of materiality?3
Petitioner: Rajeev Muttreja (Jones Day)
Respondent: Philip A. Lionberger (Office of Texas Attorney General)
In re Reed, No. 25-0149 (First Court): Under Loper Bright v. Raimondo, should the Supreme Court abrogate—or substantially narrow—the primary-jurisdiction doctrine?4
Relator: Russell Post (Beck Redden)
Real Party in Interest: Jim Wetwiska (Dechert)
Wang v. Whittenburg, No. 25-0350 (Seventh Court): Are attorneys’ fees incurred related to the breach of a settlement agreement recoverable as actual damages in subsequent litigation?
Petitioners: Robert Dubose (Alexander Dubose & Jefferson)
Respondents: David Mullin, lead counsel (Mullin Hoard & Brown)
CA5
Following En Banc-A-Palooza, the past few weeks have been relatively quiet in the Fifth Circuit.
Opinions
Trinseo Europe GmbH v. Kellogg Brown & Root, L.L.C., No. 24-20460 (Smith, Stewart, Ramirez, JJ.): Affirming across the board, the Fifth Circuit upheld the district court’s judgment as a matter of law vacating the jury’s more-than-$75 million trade-secret damages award because Trinseo presented an all-or-nothing damages model tied to ten alleged trade secrets, while the jury found misappropriation of only four. Borrowing apportionment principles from the patent-law analogue long used in trade-secret damages, the court held that when multiple trade secrets are alleged, the plaintiff must give the jury a reasonable basis to award damages attributable only to the trade secrets actually found and misappropriated—either by valuing secrets individually or in groups, or by providing a workable methodology for doing so. The panel also rejected Trinseo’s request for a new trial on damages, emphasizing that both existing precedent and the district court’s pretrial warnings put Trinseo on notice that its “all-or-nothing” strategy was a “gamble.” Even so, the court concluded the evidence was sufficient to sustain the jury’s liability findings and affirmed a permanent injunction based on the threat of continued use and disclosure. Finally, it affirmed summary judgment that TUTSA preempted Trinseo’s alternative “confidential information” misappropriation claims because, as pleaded, they duplicated the trade-secret theory.
Police Jury of Calcasieu Parish v. Indian Harbor Insurance Company, et al., No. 24-30696 (Southwick, Higginson, Wilson, JJ.): Remanding in an insurance dispute, the Fifth Circuit held it lacked subject-matter jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards after the Parish dismissed the foreign insurers with prejudice, leaving only domestic insurers in the case. Relying on its recent decision in Town of Vinton and the policy’s Contract Allocation Endorsement—providing the policy is to be construed as separate contracts between the insured and each underwriter—the court concluded there was no foreign party to any arbitration agreement and thus no Convention-based jurisdiction. The panel therefore remanded to the district court to address pending motions consistent with Vinton.
United States v. Hembree, No. 24-60436 (Higginson, Willett, Engelhardt, JJ.): Is 18 U.S.C. § 922(g)(1) unconstitutional as applied to a defendant whose sole predicate felony is simple possession of methamphetamine?
Majority (Higginson, J., joined by Willett, Englehardt, JJ.): Yes. Applying Bruen through the Fifth Circuit’s “felony-by-felony” framework, the court held that the Government failed to carry its burden to identify a historical analogue supporting lifetime disarmament for a predicate of simple possession of methamphetamine (as distinct from trafficking or distribution). The panel rejected analogies to Founding-era punishments for possession of contraband, and it declined to treat “possession” as categorically equivalent to participation in the drug trade to show the requisite “dangerousness”.
Concurrence (Willett, J.): Yes. While joining the as-applied Second Amendment conclusion, Judge Willett emphasized broader structural concerns—particularly the tension between Section 922(g)(1) and Congress’s enumerated powers. Though acknowledging that circuit precedent forecloses the argument in this case, he signaled his willingness to revisiting the Section 922(g)(1)’s broader constitutionality in an appropriate future case.
Arguments
The Court resumes arguments in February, with multiple panels sittings the week of February 2.
15COA
Finally, a short update from our statewide court of appeals.
Opinion
Tawakkol v. Vasquez, No. 15-25-00009-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in a substitute opinion, the Fifteenth Court upheld dismissal of Tawakkol’s state-court challenge to DPS officials’ determination that he must register in Texas as an extrajurisdictional sex offender based on a military conviction requiring federal registration. The court declined to affirm based on res judicata and collateral estoppel, which are defenses that act as a plea in bar—not a plea to the jurisdiction. But it upheld the dismissal because Tawakkol failed to plead a cognizable ultra vires claim: Article 62.003 applies to “substantial similarity” determinations, while his registration obligation arose under Article 62.052, which leaves DPS no discretion once federal law imposes a duty to register. In short, whatever dispute Tawakkol had about the federal designation did not translate into state-official ultra vires conduct under Texas’s statutory scheme.
Arguments
The Fifteenth Court’s next oral-argument sitting is on February 19.
Red Light
As we draw to a close, thank you to Fraser Holmes for his assistance with this week’s post. And if you’re in Houston, come join me at a pre-Valentine’s Day CLE sponsored by the Houston Bar Association’s Appellate Practice Section on oral advocacy: Oral Argument Is My Love Language. I’m looking forward to moderating a fun panel that includes three former appellate advocates now on the bench: Justices Katy Boatman, Scott Field, and David Gunn.
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, hug your loved ones—and here’s to brighter days ahead.
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In this post, for those cases in which an attorney has not confirmed presentation of oral argument, the listed attorney is the one who signed the briefs.
Having litigated criminal appeals involving life sentences as a former federal prosecutor, I understand why defense counsel—especially in a case with the highest possible stakes—may feel compelled to press a wide range of appellate issues. Even so, seeing twenty-two issues in the opening brief immediately brought to mind a line from the judge I clerked for: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortgage Co. v. Chicago Title Insurance Co., 692 F.3d 507, 509 (6th Cir. 2012) (Kethledge, J.).
Justice Kelly authored the First Court’s panel opinion, joined by Chief Justice Adams and Justice Rivas-Molloy.
Disclaimer: I previously represented the relator in these proceedings.
Chief Justice Adams authored the First Court’s panel opinion, joined.by Justice Goodman. Justice Kelly dissented.
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