26-04: Oral Argument Is My Love Language
A look back to the weeks of February 2 and 9, with help from Cupid
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
Happy (belated) Valentine’s Day. While many of you perhaps spent the lead‑up to the holiday planning a romantic evening, I instead moderated a Houston Bar Association Appellate Practice Section panel: Oral Argument Is My Love Language. (Yes, the title was my idea.) I was thrilled to gather three current Justices—each a former appellate advocate—to talk about a topic we universally love: appellate oral argument. Our panel featured Justice Katy Boatman of the Fourteenth Court of Appeals, Justice Scott Field of the Fifteenth Court, and Justice David Gunn of the First Court.
Before we got rolling, I shared five appellate‑themed valentines I created—no ChatGPT!—for the crowd:
You’re appealing under any standard of review.
I’ll never dissent from our love.
Clearly erroneous: life without you.
No argument necessary to affirm my love for you.
I want to be more than amici.
As I told the audience, with valentines like these, it’s no wonder my wife opted to spend Valentine’s Day away from me—she instead traveled to Austin for a half marathon. (Apparently oral argument is not her love language.)
Jokes aside, moderating this panel was a joy. The discussion ranged widely: how the Justices’ experiences as advocates inform their approach on the bench; what oral argument is for—from both the advocate’s and the judge’s perspective; when and how argument moves the needle; and what makes an argument memorable (or forgettable). We even batted around with the audience whether appellate courts should issue pre‑argument letters flagging issues advocates should be prepared to address.
It’s no secret that I love oral argument—hence the theme. So I couldn’t agree more with Justice Gunn’s call for appellate courts to hear more of them. Reprising a point he recently made on Todd Smith and Jody Sanders’s indispensable Texas Appellate Law Podcast, Justice Gunn emphasized two benefits of more arguments: They’re good for clients, who need to see that appellate courts are taking their arguments seriously (especially when the court ultimately rules against them); and it’s good for the public, who need to see—not just read—these courts in action. To that I say: Amen.
That’s not to say every case warrants argument—far from it. But respectfully, many more do than historically received it in the Texas courts of appeals. On that front, bravo to the First and Fourteenth Courts, which since 2025 have significantly increased the number of arguments they’re hearing.
Thanks to Justices Boatman, Field, and Gunn for a lovely discussion, to the HBA Appellate Practice Section for the invitation, and to the audience for indulging my irreverence. Here’s to more arguments.
Feature
This week, I’m trying something new. I usually spotlight the First and Fourteenth Courts, but occasionally the most instructive opinion comes from outside the 1910 Courthouse. That’s true of a recent Fifteenth Court decision that clarifies how Texas’s new Business Court interacts with ordinary pleading amendments—and what happens when a plaintiff tries to exit that forum by shedding the claims that put the case there in the first place.
In re ColossusBets Limited, No. 15-25-00150-CV (Brister, C.J.; Field, Farris, JJ.) (orig. proceeding): Jerry Reed, winner of a $7.5 million Lotto Texas jackpot, alleged that the defendants had “rigged” an earlier drawing by buying nearly every number combination. That earlier drawing paid out $95 million, and Reed claimed the scheme depressed the jackpot he later won. He then sued the defendants in Travis County District Court.
Two defendants removed the case to the Business Court. Reed moved to remand, but the court initially denied the motion, pointing to allegations that fell squarely within the Business Court’s jurisdiction over organizational governance and internal‑affairs disputes.
That’s where things got interesting. Determined to return to Travis County District Court, Reed amended his petition twice—ultimately “expressly disclaiming” any allegation or theory that could invoke Business Court jurisdiction. Within minutes, he renewed his remand request. Over defendants’ objections, the Business Court reconsidered its earlier ruling and remanded the case.
The defendants sought mandamus relief from the Fifteenth Court. They did not argue that jurisdiction independently existed—only that once the Business Court properly exercised jurisdiction, it could not later lose it—even after pleading amendments.
The Fifteenth Court disagreed. In an opinion by Chief Justice Brister, the court held that (1) trial courts retain plenary authority to revisit interlocutory orders; (2) Rule 355(f)’s reference to “improper removal” does not bar remand when jurisdiction evaporates after amended pleadings; and (3) by expressly disavowing jurisdiction‑triggering theories, Reed impliedly and irrevocably waived them. Because the Business Court properly granted reconsideration and ordered remand under these circumstances, the Fifteenth Court denied the petition.
N.B.: Business Courts may rekindle earlier remand rulings. Plaintiffs who genuinely wish to avoid Business Court jurisdiction may do so—but only by clearly and permanently breaking up with any claim or theory that would bring them back into that jurisdictional relationship. In other words: If you want to leave, leave for good.
1910
Speaking of things we love, let’s turn to our local courts here in Houston.
Orders and Opinions
Below are brief summaries of those orders and opinions from the First and Fourteenth Courts that, like a heart-shaped Reese’s candy, caught my eye.
1COA
Lunceford v. Craft, No. 01-23-00921-CV (Rivas-Molloy, Gunn, Morgan, JJ.): Did the trial court abuse its discretion by denying Erin Lunceford’s election contest and declaring Tamika Craft’s 2022 victory for judge of the 189th District Court to be the true outcome?
Majority (Rivas-Molloy, J., joined by Gunn, Morgan, JJ.): No. Lunceford didn’t meet her clear-and-convincing burden to show that voters who left polling places were unable to vote elsewhere and thus “affected” the contested race. It also upheld discounting the “suspense list” category because the roster-based methodology did not reliably establish voters’ status or account for lawful alternatives like provisional voting. And it affirmed because the affected-vote total—even with the undervote calculation—was not enough to put the true outcome in doubt.
Concurrence (Morgan, J.): No. While agreeing with the majority’s analysis, Justice Morgan wrote separately to flag a structural proof problem in large-jurisdiction election contests: Texas law effectively requires showing illegal votes affected the specific down-ballot race, yet voter-by-voter proof at Harris County scale is often impracticable. In his view, courts should be open to generalized statistical reasoning as a practical way to assess impact in big elections where individualized testimony would be unworkable—as the trial court did here.
APC Inc. v. Sahagun, No. 01-24-00531-CV (order) (Guiney, J.): Denying an unopposed motion to dismiss and vacate, the First Court held it could not both dismiss the appeal and vacate the trial court’s final judgment as part of the parties’ settlement request. Citing Texas Rules of Appellate Procedure 42.1 and 43.2, the court explained that the requested forms of relief are mutually exclusive. The court invited the parties to re-file a clarified motion requesting relief within the court’s power to grant.
In re Chaudhary, No. 01-25-00865-CV (orig. proceeding) (Adams, C.J.; Gunn, Johnson, JJ.): Should the Court grant mandamus relief from the trial court’s order granting a verified motion to reinstate?
Majority (per curiam): Summarily denied.
Concurrence (Gunn, J.): While agreeing that mandamus relief should be denied, Justice Gunn wrote separately to highlight a recurring split over what “substantially” compliant jurats must include under Texas Civil Practice & Remedies Code § 132.001—particularly whether omission of a birthdate is fatal. He observed that courts have taken different approaches and suggested a third possibility: a no-birthdate declaration might be procedurally effective to extend deadlines but substantively insufficient as competent evidence. Given the mandamus record and preservation concerns, he concurred in denying relief while inviting Texas Supreme Court clarification in an appropriate case.
Velani v. Dhanji, No. 01-23-00595-CV (Guerra, Guiney, Johnson, JJ.): Modifying the judgment and otherwise affirming, the First Court reaffirmed that civil conspiracy cannot serve as a basis for vicarious liability for breach of contract. The court thus deleted conspiracy‑based awards of contractual damages and trial‑level attorney’s fees against the individual defendants and the estate, instead awarding those contractual damages and fees only against the estate based on the jury’s breach‑of‑contract findings. Invoking the one‑satisfaction rule, the court also deleted fraud damages because the breach‑of‑contract and fraud theories redressed a single injury, leaving the greater contract recovery intact. It otherwise rejected the appellants’ varied challenges.
In re Lauren, No. 01-25-00984-CV (Rivas‑Molloy, Guiney, Morgan, JJ.) (orig. proceeding): Should mandamus issue to vacate a new‑trial order where the trial court relied on a juror’s in‑deliberations comments about big‑firm billing rates as an “outside influence” on an attorney’s‑fees award?
Majority (per curiam): Yes. A juror’s sharing of her personal knowledge during deliberations is not an “outside influence” under Texas law, so Rule 606 precludes using it to impeach the verdict. Because no competent evidence establishes juror misconduct, the new‑trial order must be vacated and the judgment reinstated.
Concurrence (Morgan, J.): Yes. As the Ninth Court has correctly held, a sitting judge’s personal recollection of extra‑judicial information is not evidence supporting a new trial. If such information matters, it must come through proper proof (e.g., juror testimony) or else the judge must be recused to testify.
Phipps v. Largo, No. 01-25-00307-CV (Adams, C.J.; Gunn, Johnson, JJ.): Granting a motion to decrease security and vacating a post‑judgment discovery order, the First Court held that arbitration fees are not “costs awarded in the judgment” that must be included in a supersedeas deposit under Rule 24 and Section 52.006 of the Civil Practice and Remedies Code. Relying on Supreme Court precedent and the Texas Arbitration Act, the court explained that arbitration fees—unlike court costs—are contract‑based and governed by Sections 171.055 and 171.092, and Section 154.054(b) of the ADR Act does not apply to contractual arbitration. The court accordingly reduced the required security and held that, because the judgment was properly superseded, post‑judgment discovery could not proceed.
In re Typhoon Texas Waterpark, No. 01-25-00427-CV (Rivas‑Molloy, Guiney, Morgan, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus, the First Court ordered the trial court to vacate a requirement that independent neuropsychological and neurological examinations in a personal-injury case be audio-recorded. Consistent with Texas and federal cases, the court held recording is disfavored absent “special circumstances” or a particularized need, which the real party failed to show. The relators lacked an adequate appellate remedy because the recording condition would compromise their expert’s ability to develop and present opinions, undermining a fair trial.
14COA
National Union Fire Insurance Co. of Pittsburgh, PA v. Payne & Keller Co., No. 14-23-00899-CV (Wilson, Hart, Boatman, JJ.): Did the Fourteenth Court have appellate jurisdiction to review the Texas domestication of a South Carolina “revocation of dissolution” order under the Foreign Judgments Act?
Majority (Wilson, J., joined by Boatman, J.): No. The majority held the insurers had standing because they were parties to—and were prejudiced by—the South Carolina revocation order filed in Texas, so the receiver could not eliminate their participation by omitting them from the chapter 35 affidavit. But it dismissed the appeal for lack of appellate jurisdiction because the South Carolina “Revocation Order” was facially interlocutory under South Carolina finality standards and therefore created only an interlocutory Texas order, not an enforceable final Texas judgment. With no final judgment and no statute authorizing an interlocutory appeal—and with the insurers’ motions to vacate still pending and not overruled by operation of law—the court held it could not hear the appeal.
Dissent (Hart, J.): No, but for a different reason: The insurers never became parties to the Texas domestication proceeding and thus lacked standing. Post-judgment intervention does not confer party status absent setting aside the judgment, and the insurers did not fit the narrow “virtual representation” exception. In his view, being third-party coverage defendants in the South Carolina litigation did not make them parties to the Texas judgment, and Texas procedure’s bar on direct-action-style insurer participation reinforced that conclusion.
Shelton v. Flores, No. 14-24-00900-CV (Jewell, McLaughlin, Antú, JJ.): Affirming the trial court’s interlocutory order denying a Rule 91a motion to dismiss, the Fourteenth Court held that Section 101.106(e) of the Texas Tort Claims Act requires dismissal of a governmental employee only upon a motion by the governmental unit—not a motion filed solely by the employee. The City of Houston did not seek Shelton’s dismissal under Section 101.106(e), so Shelton was not entitled to mandatory dismissal on that basis. In so holding, the Fourteenth Court aligned with every other appellate court to address the issue.
Kenneth D. Eichner, P.C. v. Cummings, No. 14-24-00435-CV (Wilson, Hart, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court held the evidence conclusively established the accounting firm’s right to judicial foreclosure of its security interest only as to the Brownwood real property identified in the parties’ security agreement. The court held foreclosure failed as to other property because the trial evidence did not conclusively show the defendants were current owners (or otherwise necessary parties were joined), and as to one parcel the record did not establish that title ever transferred under a contract for deed. But because the security agreement described the Brownwood property, was recorded in the county real-property records, and the record established it was not homestead property, the trial court erred by denying foreclosure relief as to that parcel.
The Bank of New York Mellon Trust Company, National Association v. Emet Municipal Real Estate Strategy II, LP, No. 14-24-00827-CV (Wise, Bridges, Antú, JJ.): The Fourteenth Court affirmed the trial court’s grant of a special appearance. The court agreed that Emet purposefully availed itself of Texas through its investment and oversight of a Texas student-housing project. But it held that BNY Mellon’s claims did not “arise out of or relate to” those forum contacts. The court emphasized that BNY Mellon did not tie Emet’s Texas-based activities (including site visits and project oversight) to any alleged “actionable” tortious conduct occurring in Texas that would form the operative facts of its claims. Because the relatedness nexus for specific jurisdiction was missing, the trial court properly dismissed Emet for lack of Texas personal jurisdiction.1
City of Houston v. Henderson, No. 14-25-00078-CV (Jewell, McLaughlin, Antú, JJ.): Affirming the denial of a hybrid summary‑judgment motion and plea to the jurisdiction, the Fourteenth Court held that the City failed to attack an independent ground supporting the ruling—the plaintiff’s verified Rule 166a(g) request for additional discovery—so the order stood regardless of the City’s merits-based arguments.
Rodriguez v. Eaton, No. 14-25-00379-CV (Christopher, C.J.; Hart, Antú, JJ.): Affirming the denial of a temporary injunction in a business‑divorce dispute over a liquor store purchase, the Fourteenth Court held that the plaintiff failed to show a probable, imminent, and irreparable injury. The court reasoned that the plaintiff’s alleged harms—loss of the store or proceeds—were compensable with money damages on this record. Generalized assertions of “uniqueness,” concealment of proceeds, or fiduciary breach did not establish irreparable harm as required to receive injunctive relief, as opposed to money damages.
In re McTorry, No. 14-26-00122-CV (Jewell, Wilson, Boatman, JJ.) (per curiam) (orig. proceeding): Dismissing a mandamus petition as moot, the Fourteenth Court held that a judicial candidate’s challenge to a temporary injunction declaring her ineligible for a primary ballot came too late to afford effective relief given the passed absentee‑ballot deadline. The court focused on the candidate’s delay in filing the mandamus petition until after the mailing deadline, thus rendering any mandamus relief ineffectual.
Dinari v. Tips, No. 14-24-00964-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Affirming a take‑nothing judgment for the defendant, the Fourteenth Court rejected the claim that defense counsel’s “fault vs. negligence” remarks were incurably prejudicial. As the court explained, the disputed trial issue was causation of injury—not who caused the collision (which was conceded). As a result, counsel’s statements correctly focused the jury on the sole contested issue of causation and did not heighten the plaintiff’s burden of proof.
In re Universal Pressure Pumping, Inc., No. 14-25-00829-CV (Bridges, Boatman, Antú, JJ.) (orig. proceeding): Conditionally granting mandamus, the Fourteenth Court held the trial court abused its discretion by denying leave to designate two companies as responsible third parties under Section 33.004 of the Civil Practice and Remedies Code Act. The motion was timely under the 60‑day rule. Nor did Section 33.004(d) bar designation when plaintiffs sued near the limitations deadline and served the defendant after limitations, making pre‑limitations disclosure impossible. Universal’s motion pleaded sufficient facts to satisfy fair‑notice pleading; in any event, the court was required to allow repleading before denying leave, which independently made the denial an abuse of discretion. Lacking an adequate remedy by appeal, Universal was entitled to mandamus relief.
Arguments
1COA
State v. Peterson, Nos. 01-24-00630-CR, 01-24-00630-CR (Adams, C.J.; Gunn, Johnson, JJ.): Did the trial court’s grant of a mistrial for two counts of indecency of a child bar a future prosecution for continuous sexual abuse of the same child?
Appellant: Bridget Holloway (Harris County District Attorney’s Office)2
Appellee: Mark Hochglaube, Esq.
Argument: February 17 at 1:30 pm
Lee v. Park, No. 01-24-00627-CV (Adams, C.J.; Gunn, Johnson, JJ.): In a lease dispute, did the trial court err in granting injunctive relief in the purported absence of irreparable injury?
Appellant: Timothy Hootman, Esq.
Appellee: Scott Williams, Esq.
Argument: February 17 at 2:30 pm
Empower Clinic Services, LLC v. Pray, No. 01-25-00410-CV (Guerra, Caughey, Dokupil, JJ.): Did the trial court err in denying the plaintiff’s TCPA motion based on the defendant’s antitrust and retaliation counterclaims?
Appellant: Amanda Taylor (Butler Snow)
Appellee: Aaron Wagner (Kabat Chapman & Ozmer)
Argument: February 19 at 1:30 pm
The University of Texas Health Science Center at Houston v. Bustos, No. 01-24-00381-CV (Adams, C.J.; Gunn, Johnson, JJ.): In a medical-malpractice lawsuit, did the trial court err in denying UT Health Houston’s plea to the jurisdiction because, among other things, generalized references to unclean instruments don’t establish the use of tangible personal property as required to waive the State’s sovereign immunity under the Texas Tort Claims Act?
Appellant: Jose Valtzar (Office of Texas Attorney General)
Appellee: Mark Midani (Midani & White)
Argument: February 24 at 1:30 pm
Bouknight v. Llanelly Enterprises, No. 01-22-00863-CV (Adams, C.J.; Gunn, Johnson, JJ.): After a jury returned a verdict finding a deed ineffective, did the trial court err in granting judgment notwithstanding the verdict concluding the opposite?
Appellant: Leonard Meyer (HooverSlovacek)
Appellee: Nathan Smith (Reynolds Frizzell)
Argument: February 24 at 2:30 pm
Vu v. Texas Fair Plan Association, No. 01-23-00733-CV (Guerra, Caughey, Dokupil, JJ.): Among other issues, is Texas Rule of Civil Procedure 292(a)—providing that a verdict may be rendered by five members of an original six-member jury—unconstitutional?
Appellant: Alexander Wathen (Dick Law Firm)
Appellee: Stephen Barrick (Hicks Thomas)
Argument: February 25 at 1 pm
Asset Risk Management, LLC v. Comal Energy Services, LP, No. 01-24-00277-CV (Guerra, Caughey, Dokupil, JJ.): Among other issues, did the trial court err in declining to submit a borrowed-employee jury instruction and in otherwise failing to apply the economic-loss rule to a negligent-misrepresentation claim?
Appellant: Mia Lorick (Troutman Pepper Locke)
Appellee: Robert Dubose (Alexander Dubose Jefferson)
Argument: February 25 at 2 pm
14COA
In re PBP, Inc., No. 14-25-00835-CV (Bridges, Boatman, Antú, JJ.): Is the relator entitled to mandamus relief from the trial court’s expunction of a lis pendens?
Relator: Natasha Breaux (Haynes Boone)
Real Party in Interest: Andrew Scott (Gordon & Rees)
Argument: February 18 at 10 am
Desta v. Wassihun, No. 14-24-00984-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court properly enter a no-answer default judgment in a divorce case?
Appellant: Lily Hann (Yetter Coleman)
Appellee: Albert Kurtyan (Kurtyan PLLC)
Argument: February 19 at 2 pm
Allen v. State, No. 14-25-00079-CR (Christopher, C.J.; Hart, Antú, JJ.): Did the trial court err in refusing to hear the defendant’s additional suppression argument, in admitting prior convictions at trial, and in failing to instruct the jury as to unanimity in identifying what discrete incident constituted the charged offense?
Appellant: Douglas Gladden (Harris County Public Defender’s Office)
Appellee: Andrew Fletcher (Harris County District Attorney’s Office)
Argument: February 24 at 2 pm
Ivy v. State, No. 14-25-00285-CR (Christopher, C.J.; Hart, Antú, JJ.): Among other issues, did the trial court—if it had jurisdiction—properly revoke the defendant’s community supervision based on his pleas of true to the State’s allegations in the motion to adjudicate guilt?
Appellant: Susan Clouthier (Clouthier Law)
Appellee: Philip Harris (Harris County District Attorney’s Office)
Argument: February 24 at 2 pm
Jones v. State, No. 14-25-00476-CR (Christopher, C.J.; Hart, Antú, JJ.): Did the trial court abuse its discretion either by excluding expert testimony regarding the defendant’s psychosis, or by excluding expert testimony regarding the defendant’s perception issues that inform his self-defense defense?
Appellant: Samuel Rossum (Harris County Public Defender’s Office)
Appellee: Melissa Stryker (Harris County District Attorney’s Office)
Argument: February 24 at 2 pm
Gusa v. Shelton, No. 14-25-00320-CV (Wilson, Hart, McLaughlin, JJ.): In this construction dispute, did the trial err in granting the defendants’ motions for summary judgment and in imposing sanctions against plaintiffs?
Appellant: Vincent Marable (Paul Webb)
Appellee: Misty Hataway-Cone (Cone PLLC)
Argument: February 25 at 2 pm
Kotts v. M.A. MILLS, P.C., No. 14-25-00195-CV (Jewell, Wilson, Boatman, JJ.): In a compensation dispute between a company and its former general counsel, did the trial court err in denying the company’s TCPA motion?3
Appellant: Lily Hann (Yetter Coleman)
Appellee: Mano DeAyala (Buck Keenan)
Argument: February 26 at 2 pm
Southwest Sunrise, LLC v. John Gannon, Inc., No. 14-25-00237-CV (Jewell, Wilson, Boatman, JJ.): Did the trial court err in its award of attorneys’ fees at the trial and appellate levels?
Appellant: Anna Frederickson (Keeling & Frederickson)
Appellee: Michael Falick (Rothfelder & Falick)
Argument: February 26 at 2 pm
& Beyond
With flower delivery to the 1910 Courthouse now complete, let’s move onto our next stop: Washington, D.C.
SCOTUS
Cupid’s arrows flew more than opinions this week, leaving the Supreme Court of the United States to enjoy a peaceful Valentine’s lull.
Orders
Aside from two denials of stay applications from capital cases, the only notable order was the Court’s denial of an application for writ of injunction pending appeal in another redistricting case:
Tangipa v. Newsom, No. 25A839 (C.D. Cal.): Should the Supreme Court should pause a three-judge district court ruling allowing California to use its new congressional map in the 2026 elections?
Majority (per curiam): No—application summarily denied.
Arguments
The Court will hear oral argument in four cases the week of February 23.
February 23
Havana Docks Corporation v. Royal Caribbean Cruises, Ltd., No. 24-983 (Eleventh Circuit): Must a Title III LIBERTAD Act plaintiff prove the defendant trafficked in property confiscated by the Cuban government that the plaintiff owns a claim to—or prove the defendant trafficked in property the plaintiff would have continued to own “as if there had been no expropriation”?
Exxon Mobil Corp. v. Corporacion Cimex, No. 24-699 (D.C. Circuit): Does the Helms‑Burton Act abrogate foreign sovereign immunity in suits against Cuban instrumentalities, or must parties also satisfy an exception under the Foreign Sovereign Immunities Act?
February 24
Enbridge Energy, LP v. Nessel, No. 24-783 (Sixth Circuit): May district courts excuse the thirty-day procedural time limit for removal under 28 U.S.C. § 1446(b)(1)?
February 25
Pung v. Isabella County, No. 25-95 (Sixth Circuit): Does taking and selling a home to satisfy a government debt—and keeping the surplus value—violate the Takings Clause when compensation is based on a depressed auction price rather than fair market value? And does forfeiture of property worth far more than the debt constitute an excessive fine under the Eighth Amendment?
All oral arguments can be livestreamed here.
SCOTX
With D.C. in the rearview, Cupid touches down in Austin, where the Supreme Court of Texas offers a two‑opinion duet.
Opinions
Privilege Underwriters Reciprocal Exchange v. Mankoff, No. 24-0132 (Fifth Court): Does an insurance-policy deductible applicable to covered losses caused by “Windstorm or Hail”—an undefined term—unambiguously apply to damage caused by a tornado?
Majority (Lehrmann, J., for unanimous Court): Yes. Courts will give undefined policy terms their plain, ordinary meaning, unless something in the policy suggests an intent to apply a more technical meaning. The common thread running through dictionary definitions of “windstorm” is a storm with violent, strong winds but little or no precipitation. A tornado falls within these definitional boundaries, even if it is a subset of a broader storm involving precipitation. Considering the use of the term “windstorm” in statutes and other cases does not change this fact. And because the insureds did not agree to a technical meteorological meaning of “windstorm”, their expert’s opinion provides little guidance. Since the damage at issue was caused by a tornado—a type of windstorm—the insureds’ claim was subject to the policy deductible.
In Estate of Wheatfall, No. 24-0778 (First Court) (no oral argument):4 Is a trial court’s order admitting a will to probate and denying objections filed through a particular date a final, appealable judgment, when that order did not address objections to probate filed after that date, and a subsequent objection was filed?
Majority (per curiam): No. the trial court’s order did not unequivocally dispose of all pending issues when it was signed. The order expressly applied to objections asserted “through September 4, 2019.” This language left open objections filed after that date—including the decedent’s son’s September 5, 2019 will contest. Because the order didn’t clearly and unequivocally dispose of all issues related to the will’s validity, the order wasn’t final.
Orders
As usual, the Court’s customary Friday orders lists were dominated by denials of petitions for review and for writs of mandamus. But the Court did set one original proceeding for oral argument:
In re Home Depot U.S.A., Inc., No. 25-0317 (Fourteenth Court):5 Among other issues, does a shipper who hires a carrier owe a duty to a third-party motorist injured by the carrier’s driver?
And among other miscellaneous orders, the Court granted stays in two original proceedings—one involving the denial of a motion to stay proceedings pending an appeal from a denial of a motion to compel arbitration, and one involving the denial of a Rule 91a motion in a lawsuit against a vehicle manufacturer arising from a dealership’s repair of an out-of-warranty car.
Arguments
Arguments resume in Austin on March 3.
CA5
It’s been hearts‑aflutter at the Fifth Circuit, where a quiver of fresh opinions have kept appellate romantics well supplied.
Opinions
Harvard Maintenance, Inc. v. NLRB, No. 24-60523 (Smith, Dennis, Richman, JJ.): Did substantial evidence support the National Labor Relations Board’s findings that Harvard unlawfully threatened and discharged Cruz, and could the Board award “direct or foreseeable pecuniary harms” as part of its make-whole remedy under Thryv?
Majority (Smith, J., joined by Richman, J.): Yes and no. The record reasonably supports the Board’s conclusions that supervisors’ statements were coercive and that the employee’s discharge was motivated by protected activity. But it vacated the “direct and foreseeable pecuniary harms” component of the Thryv remedy, holding that the Board exceeded its remedial authority because the consequential-damages-style relief is legal in nature—not equitable—thus exceeding the Board’s statutory authority.
Concurrence in Part and Dissent in Part (Dennis, J.): The record supports the Board’s liability findings. But the Court lacks jurisdiction to reach the Thryv issue, which was not raised before the Board. The majority’s reliance on the “futility exception” to reach this issue lacks record support and is otherwise unpersuasive.
Airlines for America v. U.S. Department of Transportation, Nos. 24-60231 & 24-60373 (en banc) (per curiam): In the first opinion from En Banc-A-Palooza, is vacatur from DOT’s “Enhancing Transparency of Airline Ancillary Service Fees” rule required because it was promulgated without the APA’s required notice and comment?
Majority (per curiam): Yes. In its brief and at oral argument, DOT conceded that it failed to provide notice and an opportunity to comment on a study “critical to the Rule’s issuance”—a procedural defect that may have affected the rule’s content and scope. As a result, the default remedy of vacatur was appropriate.
Concurrence (Haynes, J., joined by Southwick, Douglas, JJ.): Yes. The original panel wrote briefly to note the case’s “evolved” posture under the new administration, which had taken a different position on the rule from the prior administration.
Buenrostro-Mendez v. Bondi, Nos. 25-20496 & 25-40701 (Jones, Duncan, Douglas, JJ.): Are long-present, unlawfully entered noncitizens who are “applicants for admission” subject to mandatory detention without bond under 8 U.S.C. § 1225(b)(2)(A), or instead eligible for bond under Section 1226(a)?
Majority (Jones, J., joined by Duncan, J.): Section 1225(b)(2)(A) applies. Because petitioners concede they are “applicants for admission” under Section 1225(a)(1), they are necessarily “seeking admission” for purposes of Section 1225(b)(2)(A)—making detention mandatory pending removal proceedings. Because the statute’s text and neighboring provisions confirms that “applicant for admission” is a subset of those “seeking admission,” the term “seeking admission” is not limited to arriving aliens. Neither redundancy nor contrary longstanding practice permits rewriting clear statutory text.
Dissent (Douglas, J.): Section 1226(a) applies. “Seeking admission” in Section 1225(b)(2)(A) has independent meaning tied to active efforts to enter lawfully after inspection. The Government’s contrary interpretation improperly collapses distinct terms and creates major surplusage—including undermining much of Section 1226(c) and the recent Laken Riley Act. The broader statutory context, history, and the Supreme Court’s description of the scheme distinguish border/inspection detention under Section 1225 from interior apprehension detention under Section 1226, as supported by nearly three decades of practice.
Gonzalez v. El Centro Del Barrio, No. 25-50092 (Haynes, Duncan, Ramirez, JJ.): Affirming remand to state court in a data-breach class action, the Fifth Circuit held removal was improper under both 42 U.S.C. § 233 and the federal-officer removal statute, 28 U.S.C. § 1442. The court concluded CentroMed could not remove under Section 233(l)(2) because the Attorney General timely appeared in state court within 15 days and advised that CentroMed was not deemed a Public Health Service employee “with respect to” the acts or omissions at issue—thus satisfying Secton 233(l)(1) and foreclosing defendant-initiated removal. And it held that Section 1442 removal was untimely because the petition itself revealed the asserted basis for federal-officer removal, triggering the 30-day clock on service—yet CentroMed removed too late.
One Lakeside Plaza, L.L.C. v. Indian Harbor Ins. Co., No. 24-30758 (Haynes, Ho, Oldham, JJ.) (per curiam): Should the en banc Court grant rehearing in an insurance-coverage case?
Majority (per curiam): Petition denied without poll.
Concurrence (Ho, J.): The panel faithfully applied Fifth Circuit precedent. And counsel is wrong to assert that filing an en banc petition is necessary to “exhaust remedies,” which runs directly contrary to the Fifth Circuit’s Internal Operating Procedures.
In Matter of Complaint of Aries Marines Corporation, No. 25-30010 (Dennis, Graves, Duncan, JJ.): Affirming summary judgment to invalidate indemnity provisions under Louisiana law in a personal-injury case, the Fifth Circuit held the parties’ master services contract was nonmaritime under Doiron because both parties did not share an expectation that a vessel would play a substantial role in United Fire’s fire‑watch work.
AbbVie, Inc. v. Murrill, Nos. 24‑30645, 24‑30651, 24‑30673 (Higginson, Willett, Engelhardt, JJ.): Affirming summary judgment for the State of Louisiana, the Fifth Circuit held that Louisiana’s Act 358—protecting covered entities’ use of contract pharmacies for 340B drugs—is not preempted, does not effect a taking (physical or regulatory), does not substantially impair contracts under the Contracts Clause, and is not unconstitutionally vague. Following its prior precedent in a case involving a similar Mississippi law, the court emphasized that Section 340B is silent on delivery logistics and pharmacies, leaving room for traditional state regulation of drug distribution and consumer protection; manufacturers still receive the statutory ceiling price and cannot interfere with a covered entity’s chosen delivery through contract pharmacies. But the panel reversed the order permitting the Louisiana Primary Care Association to intervene, finding that its interests were adequately represented by the State.
Parrott v. International Bancshares Corp., No. 25-50367 (Elrod, C.J.; Smith, Wilson, JJ.): Reversing in part and affirming in part, the Fifth Circuit compelled arbitration of a plan participant’s ERISA plan-wide claim under Section 1132(a)(2) because the Plan’s consent via unilateral amendment sufficed; participant consent to arbitration for these plan-wide claims was not required. But the court held that the district court properly refused to compel arbitration of the participant’s individual claims, which weren’t covered by an arbitration provision. Finally, the court held that the plan’s representative‑action waiver and “individual‑relief‑only” limitation violate the effective‑vindication doctrine for Section 1132(a)(2) claims, voided the standard‑of‑review clause to the extent it lowers the review for fiduciary‑duty claims, and remanded for the district court to decide severability.
In re Canada, No. 25-10548 (Southwick, Ho, Willett, JJ.): Certifying a Texas-law question to the Supreme Court of Texas, the Fifth Circuit asked whether a debtor’s LLC membership interest is exempt property in federal bankruptcy based on Section 101.112 of the Texas Business Organizations Code. The panel noted conflicting signals—intermediate Texas courts have treated LLC interests as non‑exempt, yet Section 101.112’s “exclusive remedy”/charging‑order language and text referencing “creditor” could be read to impose stronger protections. The reasonably close nature of the question, coupled with its significant, recurring consequences for Texas debtors and trustees, warranted certification rather than an Erie guess.
United States v. Leonard, No. 23-40652 (Elrod, C.J.; Oldham; Wilson, JJ.): Did the district court properly suppress evidence under the exclusionary rule after officers briefly entered a home before obtaining a warrant, notwithstanding the good‑faith “close enough” doctrine?
Majority (per curiam): No. The exclusionary rule is a “last resort,” and the Fifth Circuit’s Massi good‑faith variant is satisfied here because officers reasonably believed exigent circumstances justified a quick safety sweep: a severely impaired, injured man was found nearby; an exterior door stood open; and visible disarray suggested a struggle.
Concurrence (Oldham, J., joined by Wilson, J.): No. Instead of following the amorphous Massi “close enough” test, the Fifth Circuit should align the good‑faith inquiry with qualified‑immunity’s “clearly established” standard so suppression deters only objectively unreasonable, patently unconstitutional police conduct. In other words, for the exclusionary rule to apply, criminal defendants “must show that the officer who illegally discovered the information used to obtain a warrant violated clearly established law.”
Vapor Technology Association v. Graham, Nos. 25‑60694 & 26‑60013 (Stewart, Willett, Wilson, JJ.): Denying a motion for an injunction pending appeal, the Fifth Circuit held that the plaintiffs—a group of retailers, distributors, and trade associations int he electronic nicotine industry—failed to establish Article III standing to challenge Mississippi H.B. 916 (a statute essentially requiring FDA approval for e‑nicotine devices). On the record presented, plaintiffs advanced only a generalized constitutional grievance with Mississippi’s law, as opposed to an individualized concrete, particularized injury. As a result of their lack of standing, they could not show any likelihood of success on the merits.
Cooper v. State Farm Fire & Casualty Co., No. 24-60466 (Jones, Southwick, Oldham, JJ.): Did the homeowners create a triable fact issue or reasonably rely on the adjuster’s statements to obtain coverage benefits despite the policy’s off‑premises sewage exclusion and a capped sewer‑backup endorsement?
Majority (Southwick, J., joined by Jones, J.): No. Under Mississippi law, the unambiguous policy excludes coverage for sewage originating outside the residence premises. The insureds are charged with knowledge of that text, so their reliance on contrary adjuster remarks is unreasonable as a matter of law. The record also fails to raise a genuine dispute that the sewage source was off‑premises. As a result, summary judgment for the insurer was proper.
Dissent (Oldham, J.): Yes. The adjuster didn’t know the source of the sewage when he made his coverage decisions. And indicating coverage under the policy, the adjuster directed the homeowners to undertake specific, costly repairs and indicated coverage—thus creating at least a jury question on equitable estoppel. These factual disputes require a jury trial.
La Unión del Pueblo Entero v. Abbott, No. 24‑50783 (Jones, Engelhardt, JJ.; Summerhays, J., by designation): The district court erred in entering a pre-enforcement injunction of Section 276.015 of the Texas Election Code, a statute criminalizing illegal vote harvesting, as facially unconstitutional. Emphasizing the disfavored nature of facial, pre‑enforcement attacks, the Fifth Circuit first held that the law’s challenged provisions (“compensation or other benefit” and “physical presence”) weren’t unconstitutionally vague. Nor does the law violate the First Amendment, even on strict-scrutiny analysis: the statute is narrowly tailored to the State’s compelling interests in election integrity. Finally, the court held that the proper Ex parte Young defendants were county district attorneys—not the Attorney General or the Secretary of State, who must be dismissed based on sovereign immunity.
Arguments
The Fifth Circuit has one virtual panel argument on February 25. Its regular March argument session begins the week of March 2—including with arguments at the University of Houston and the Houston federal courthouse.
Speaking of which, the Southern District of Texas Chapter of the Federal Bar Association and the Garland R. Walker Inn of Court—two wonderful bar organizations that I’ve been fortunate to help lead—are hosting a CLE program around the March 4 sitting at the Houston federal courthouse. Following the arguments, Judge Christina Bryan will moderate a discussion on appellate advocacy with Nelson Ebaugh . . . and yours truly. Tickets are limited, so register today!
15COA
Hearts in tow, we circle back to the Fifteenth Court.
Opinions
Port Arthur Independent School District v. Wagner, No. 15-25-00087-CV (Brister, C.J., Field, Farris, JJ.): Affirming in part and reversing and rendering in part, the Fifteenth Court held that Education Code § 21.307 does not make joinder of the Commissioner of Education within 30 days a jurisdictional prerequisite to judicial review of a nonrenewal decision. Although Section 21.307(c) requires the Commissioner be made a party, the statute does not specify when joinder must occur. The court construed “perfected” under Section 21.307(b) to mean timely filing the petition for review—not timely joinder. But the court dismissed Wagner’s declaratory-judgment claim under the redundant-remedies doctrine because it sought no relief beyond what could be obtained through the statutory appeal from the Commissioner’s decision.
Hancock v. ChampionX, LLC, No. 15-24-00111-CV (Brister, C.J.; Field, Farris, JJ.): Affirming, the Fifteenth Court held that ChampionX’s reusable chemical containers and related services qualify for sales‑ and use‑tax exemptions under the Tax Code’s manufacturing exemption and the services‑on‑exempt‑property provision. The court reconciled the Code’s container exemption with the manufacturing exemption; it concluded that the two provisions are not irreconcilable, and that the manufacturing exemption applied to containers used during production and required for compliance and pollution‑control functions. The State otherwise waived its challenge to the manufacturing exemption’s application by failing to attack the specific subsections that ChampionX invoked, and the exclusions for transportation/storage did not apply on this record. Finally, the manufacturing exemption doesn’t turn on whether the container “is being used or consumed in manufacturing at a particular moment.”
PLS Check Cashers of Texas, Inc. v. Texas Department of Housing & Community Affairs, No. 15-24-00088-CV (Brister, C.J.; Field, Farris, JJ.): Affirming in part and reversing and rendering in part, the Fifteenth Court held there was no viable takings claim because the Department did not “take” a check-cashing company’s cash—the ineligible recipients did—and a refusal to honor checks is nonfeasance, not an affirmative taking. The court further held the ultra vires claim fails because federal law required Texas Rent Relief funds be paid only to eligible households, leaving no discretion to pay a holder in due course contrary to federal restrictions. Thus, while the trial court properly granted the plea to the jurisdiction on the takings claim, it should also have granted the plea as to the ultra-vires claim.
Board of Regents of the Texas A&M University System v. BE&K Building Group, LLC, No. 15-25-00058-CV (Brister, C.J.; Field, Farris, JJ.): Affirming the denial of the Board of Regents’ plea to the jurisdiction, the Fifteenth Court held that Chapter 114 clearly waives immunity for a claim alleging breach of express provisions in a construction contract with a state agency. The court rejected the Board’s arguments that the construction company had to prove the merits (e.g., entitlement to payment, time extensions, and retainage release) at the plea stage. Finally, the company’s claimed failures to comply with the contract’s ADR/notice prerequisites—though enforceable—did not preclude subject-matter jurisdiction under Chapter 114.
Argument
The Fifteenth Court has four arguments scheduled for February 19 at 9:30 am:
State v. Xerox Corporation Settlement Proceeds, No. 15-25-00034-CV:6 Among other issues, does sovereign immunity—or the public-disclosure bar—bar the appellees’ entitlement to a relator’s share of the settlement?
Appellant: Brian VanderZanden (Office of Texas Attorney General)
Appellee: Caitlyn Silhan (Waters & Kraus)
City of Aledo v. State, No. 15-25-00086-CV: Among other issues, is SB 2038—which limits the statutory authority of extraterritorial jurisdictions—unconstitutional?
Appellant: Andrew Messer (Messer Fort) & David Overcash (Wolfe, Tidwell & McCoy)
Appellee: Nathaniel Plemons (Office of Texas Attorney General)
Rojas v. State, No. 15-25-00100-CV: Did the trial court err in entering a temporary injunction enjoining a midwife and medical clinics from practicing medicine or performing abortions in violation of State law?
Appellant: Marc Hearron (Center for Reproductive Rights)
Appellee: Jeffrey Stephens (Office of Texas Attorney General)
Texas Education Agency v. Excellence 2000 INC., No. 15-25-00148-CV: Did the trial court err in denying the Agency’s plea to the jurisdiction in a dispute over the revocation of a charter school’s charter?
Appellant: Joe Nwaokoro (Office of Texas Attorney General)
Appellee: Melvin Houston (Houston Law Group)
Red Light
And having delivered all these valentines—yes, there were a lot—it’s finally time for Cupid to adjourn court.
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.
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Until next time, have a great week—and may your next appellate brief be love at first cite.
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Disclaimer: My law firm represented the appellee. (And congratulations to my partners Marc Tabolsky and Penny Nicholson on the appellate victory!)
For those parties who have not yet confirmed presentation of oral argument, listed counsel is who signed the party’s brief.
This argument also could feature discussion of “fake quotes” and “fake holdings” in one party’s brief.
Justice Countiss authored the majority panel opinion for the First Court, joined by Justice Goodman. Justice Farris dissented.
Justices Wise, Jewell, and Hart comprised the Fourteenth Court panel that summarily denied the petition.
Chief Justice Adams of the First Court is sitting by assignment, replacing Justice Field on the panel.
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