26-08: Hail to the Victors
A look back to the weeks of March 30 and April 6, with help from your new men's college basketball national champions
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, while also often sharing 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.
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Opening Statement
Let’s begin with the most important news, at least in my world:
Suffice it to say, these have been a-maize-ing days in the Gould household, where we celebrated my beloved alma mater’s run to its second men’s basketball national championship—the first since 1989. But perhaps no one at home is happier than my oldest son, whose extraordinary faith in the Wolverines paid off handsomely: He won our family bracket pool and finished second in a legal vendor’s bracket pool (using my entry). As Dick would say, It’s Great . . . to be . . . a Michigan Wolverine.
Speaking of extraordinary—and moving to the real reason why you read this Substack—the First Court issued a new local rule governing motions for en banc reconsideration. The rule is reprinted in full below:
LOCAL RULE 3: Form of Motions for En Banc Reconsideration.
En banc consideration of an appeal is not favored and has heightened requirements. Any motion for en banc reconsideration should address the Rule 41.2(c) standard, as reiterated in Rule 49.5.
(a) Statement of conflict or extraordinary circumstances. The first page of the motion must include a statement that addresses the Rule 41.2(c) standard. The statement is limited to one page in length and should not include argument. Failure to address this standard shall be grounds for denying the motion summarily.
(b) Identify the conflicting cases. If the motion asserts a conflict, it should cite the cases from the First Court of Appeals—not cases from a higher court—that the movant regards as conflicting with the panel decision. A conflict with the decision of a higher court does not qualify as a conflict for purposes of the Rule 41.2(c) standard, but it may provide a ground for panel rehearing or a petition for discretionary review in a higher court (and in rare cases it may play a part in creating extraordinary circumstances for purposes of Rule 41.2(c)).
(c) Identify the extraordinary circumstances. If the motion asserts extraordinary circumstances, it should state them concisely and save elaboration for the argument section of the motion.
(d) Error correction fails the standard. En banc reconsideration is not designed as a means of pursuing mere error correction. The Rule 41.2(c) standard normally is not met by a claim that settled law was misapplied, e.g., such as a claim that the panel erred with respect to the sufficiency of the evidence. Such claims may be more appropriate in a motion for panel rehearing or a petition for discretionary review in a higher court.
Justice Gunn proposed something similar in a previously covered order denying an en banc motion. There, he suggested that future en banc motions begin with a one-page, stand-alone “Rule 41 statement” that squarely identifies a conflict within the court’s decisions and any extraordinary circumstances before turning to the argument.
This local rule codifies that proposal—and sharpens it. And the clearest point, to me, is that the court is telling lawyers exactly what counts. If you’re going to claim a conflict, the conflict has to be with a First Court decision. It isn’t enough to say the panel missed Supreme Court precedent. That may support panel rehearing or a petition for review, but absent extraordinary circumstances, it doesn’t satisfy the en banc standard.
That is a significant clarification, and an easy trap for parties who treat en banc as just a louder motion for rehearing. The rule says plainly that en banc reconsideration is not for ordinary error correction. If your real complaint is that the panel misapplied settled law, the Justices are telling you—before tipoff—that you’re probably in the wrong court.
The other point worth emphasizing is the new one-page statement on the first page. That page is now the referee. If you don’t persuade the court there—immediately—that you have identified either a real intra-court conflict or genuinely extraordinary circumstances, the court may call two technical fouls and toss your petition without reading further.
So this rule should—and indeed, will—change how these motions are drafted. The one-page statement is now the headline—and probably the only page guaranteed to get the court’s full attention. You need to identify the specific First Court cases that conflict, or crisply state the extraordinary circumstances, in a way that can win on that first page. In that sense, the First Court has done the bar a favor: It has made clear that, if you want to survive and advance, you need to play by the right rules. Let’s see if other courts adopt this bracket strategy.
Feature
In the Matter of South Coast Supply Co., No. 25-20176 (Richman, Duncan, Oldham, JJ.): Affirming a defense verdict in a bankruptcy-preference trial, the Fifth Circuit didn’t reach the merits of Briar Capital’s evidentiary sufficiency challenge. Why? Briar Capital never preserved it.
After a jury found that the payments to the debtor’s executive did not allow him to receive more than he would have in a hypothetical Chapter 7 liquidation, Briar Capital argued on appeal that the evidence could not support that verdict. But there was a critical problem: It had filed neither a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), nor a renewed motion under Rule 50(b) motion after the verdict.
The Fifth Circuit held that failing was fatal. The panel leaned on precedent for the proposition that an appellant who skips Rule 50 is “powerless” to obtain appellate review of evidentiary sufficiency. Thus Briar Capital’s attempt to salvage review through a plain-error theory went nowhere. It’s a stark reminder that appellate risk isn’t always about the merits, but sometimes to a straightforward binary question: Was the issue preserved? If error is unpreserved, even a potentially strong merits argument may never get a real hearing on appeal.
Still, for good measure, the panel rejected Briar Capital’s theory even under an assumed-available plain-error theory. The record contained testimony that South Coast’s assets may have been undervalued, that some obligations may have been collectible, and that the company’s financial picture was uncertain—some evidence, in the panel’s view, to support the verdict. The detailed calculations that Briar Capital’s argument emphasized appeared only in closing argument—which isn’t evidence.
N.B.: Just as most championships aren’t won at the buzzer, most appeals aren’t won after the verdict. A good coach makes error preservation part of any trial plan—because South Coast Supply is a sharp reminder that the team that ignores preservation usually isn’t the one singing We Are The Champions at the end of March Madness.
1910
Orders and Opinions
And now, to our local courts here in Houston. Below are brief summaries of notable orders and opinions from the First and Fourteenth Courts.
1COA
Prasla Property, Inc. v. Spark Wealth Investments, LLC, No. 01-25-00920-CV (Adams, C.J., Gunn, Johnson, JJ.) (order): Should the First Court withdraw its earlier dismissal and reinstate the appeal despite appellants’ untimely rehearing motion?
Order (per curiam): Yes. Reinstating the appeal, the First Court held that it could withdraw its prior dismissal and judgment on the court’s own motion while plenary power still existed. Appellants showed that they had paid for the clerk’s record and that they intended to pay the appellate filing fee once the appeal was reinstated.
Concurrence (Johnson, J.): Yes. The court should exercise its appellate discretion before plenary power expired because appellants verified that they paid for the clerk’s record on the day of dismissal, failed to pay the filing fee because of a communication breakdown with prior counsel, and still intended to pursue the appeal. Those facts justify giving appellants a path to the merits, especially in light of authority favoring merits dispositions when reasonably possible and precedent allowing withdrawal of a dismissal during plenary power.
Dissent (Adams, C.J.): No. While courts have broad discretion and plenary power, those powers stop where the appellate rules stop. Because appellants filed their rehearing motion after both the 15-day rehearing deadline and the additional 15-day extension window had expired, he viewed the court as lacking authority to grant relief tied to that motion. Reinstating the appeal effectively rewrites Rules of Texas 49.1 and 49.9 and warrants guidance from the en banc Court or the Supreme Court of Texas.
Corwin v. Exxon Mobil Corp., No. 01-24-00207-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Affirming, the First Court upheld sanctions against attorney Richard Brualdi and his firm for filing a meritless merger-injunction suit in bad faith to extract a settlement. Even if Chapter 10 and Rule 13 didn’t apply because Brualdi didn’t technically sign the temporary-injunction motion, the trial court could sanction him under its inherent authority for bad-faith abuse of the judicial process. Evidence supporting bad faith included testimony about Brualdi’s repeat-player merger-tax model, a list of more than seventy similar suits, his immediate nonsuit after losing the injunction request, and the trial court’s adverse-credibility findings.
Kassab v. Pohl, No. 01-24-00220-CV (Rivas-Molloy, Guiney, Morgan, JJ.): Affirming in part, reversing in part, and remanding, the First Court held that legally sufficient evidence supported the jury’s finding that Pohl’s client-fee contracts and client lists were trade secrets that Kassab misappropriated under the Texas Uniform Trade Secrets Act. Kassab’s limitations, attorney-immunity, judicial-proceedings-privilege, and similar defenses failed because the jury could find misappropriation based on Kassab’s acquisition of the materials before any attorney-client relationship arose. But the exemplary-damages award couldn’t stand because the verdict did not definitively show a unanimous predicate finding. Nor were Pohl’s attorney’s fees incurred defending barratry suits and grievances recoverable as TUTSA actual damages, Finally, TUTSA preempted conspiracy-based joint-and-several liability.
Bouknight v. Llanelly Enterprises, No. 01-22-00863-CV (Adams, C.J., Gunn, Johnson, JJ.): Affirming, the First Court held that the trial court properly granted judgment notwithstanding the verdict in a dispute over ownership of a property. Bouknight pleaded for a declaration that Wilmot, not Llanelly, owned the property. But the only jury question asked whether the deed was ineffective to convey the property to Llanelly—which didn’t determine ownership as between Wilmot and Llanelly. Because the submitted question did not support the pleaded declaratory relief and Bouknight failed to obtain a jury finding on the essential ownership issue despite Llanelly’s objection, the trial court properly rendered a take-nothing judgment.
Bynon v. Garcia, No. 01-24-00849-CV (Guerra, Gunn, Dokupil, JJ.): Were the surviving relatives who sought only injunctive relief to preserve evidence—but did not yet plead claims for damages—“claimants” under the Texas Medical Liability Act required to serve expert reports once the doctor filed an answer?
Majority (Gunn, J.): Yes and no. Affirming in part and reversing in part, the First Court held that the pleadings asserted health-care-liability claims because they alleged that Dr. Bynon improperly excluded patients from a liver-transplant waiting list and thereby deprived them of lifesaving care, and it further held that his brief opposing the injunction counted as an answer that would trigger Chapter 74’s report deadline. But the Act defines a “claimant” as a person seeking damages, so the intervenors—who expressly pleaded wrongful-death damages—had to serve expert reports and their claims must be dismissed. Meanwhile, the original plaintiffs—who sought only injunctive relief to preserve evidence—were not claimants and could proceed without reports.
Concurrence in Part and Dissent in Part (Dokupil, J.): Yes. The majority correctly holds that the pleadings assert HCLCs, and that the doctor’s brief serves as an answer. But the intervenors aren’t the only “claimants”—so are the plaintiffs. When plaintiffs bring an HCLC based on facts that could support damages for negligent medical care, courts should look to the gravamen of the suit rather than allow artful pleading to avoid Chapter 74 by styling the case as injunctive relief first and damages later. The majority’s rule creates a loophole that lets plaintiffs build a medical-negligence case, including discovery, outside the TMLA’s expert-report structure and then add damages in a later pleading.
Transportes Juan Chavez, S.A. de C.V. v. Deharo, No. 01-24-00611-CV (Guerra, Caughey, Dokupil, JJ.): Reversing and rendering, the First Court held that Texas courts lacked personal jurisdiction over the Mexican bus company in a suit arising from a fatal bus accident in Mexico. General jurisdiction was absent because the evidence did not show that the Mexican company was the alter ego of its Texas affiliate or otherwise “at home” in Texas, despite overlapping ownership, cross-border bus operations, and intercompany leasing arrangements. Specific jurisdiction also was lacking because the operative facts concerned the bus’s operation, maintenance, and driver supervision in Mexico—not the company’s Texas contacts such as ticket sales in Harris County or its agreements with Texas affiliates. Finally, the plaintiffs’ conspiracy theory could not independently support jurisdiction.
14COA
Advantis Certified Staffing Solutions, Inc. v. Gibson, No. 14-24-00360-CV (Wilson, Hart, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court held that summary judgment was improper on the plaintiff’s fiduciary-duty and related claims because the defendants didn’t conclusively establish ratification of the challenged self-dealing transactions under Section 21.418 of the Business Organizations Code. But summary judgment was proper on the plaintiff’s breach-of-contract claim because the plaintiff raised no evidence that the individual directors were parties to, or personally bound by, either the company’s bylaws or the stock-purchase agreement.
Houston Livestock Show and Rodeo, Inc. v. National Fire & Marine Insurance Co., No. 14-24-00724-CV (Wilson, Hart, McLaughlin, JJ.): Affirming, the Fourteenth Court held a insurance policy’s pollution-and-contamination exclusion barred coverage for the Houston Rodeo’s alleged business-interruption losses from the shutdown of the 2020 Rodeo after COVID-19 was detected at NRG Park. Assuming without deciding that the civil-authority and ingress-or-egress provisions could apply without direct physical loss or damage, the court concluded that the exclusion’s definition of contaminants or pollutants unambiguously included a virus, so the claimed loss fell outside coverage. Because there was no coverage and no alleged injury independent of policy benefits, the extracontractual claims equally failed as a matter of law.
Endurance American Insurance Co. v. Cobalt International Energy, Inc., No. 14-25-00964-CV (Christopher, C.J., Wise, Bridges, JJ.) (per curiam): Dismissing, the Fourteenth Court held that it lacked interlocutory jurisdiction under Section 51.014(a)(3) of Civil Practice and Remedies Code over an order denying a motion to relitigate class-certification issues. The challenged order didn’t certify or refuse to certify a class, and the underlying suit wasn’t brought under Rule 42, even if the parties disputed whether appellees were proceeding in some representative capacity based on prior federal rulings.
Norman v. Kahn Scheepvaart BV, No. 14-24-00176-CV (Wilson, Hart, McLaughlin, JJ.): Affirming, the Fourteenth Court upheld a take-nothing judgment on a jury verdict in favor of a vessel owner in a maritime-negligence suit arising from a longshore worker’s injury. Most of Norman’s charge complaints weren’t preserved. Nor did the trial court err by submitting a single broad-form negligence question instead of separate questions on the vessel’s active-control duty and duty to intervene, and any failure to instruct the jury not to consider the stevedore’s negligence was harmless. The court also rejected Norman’s complaints about alleged juror or bailiff misconduct because the motion for new trial was unsupported by specific facts or evidence and the record didn’t show the trial court prevented any post-trial investigation.
Murray Lobb, PLLC v. Liss, No. 14-24-00694-CV (Wise, Hart, Bridges, JJ.): Affirming in part, reversing and rendering in part, and remanding in part, the Fourteenth Court held that the Texas Citizens Protection Act required dismissal of an estate’s breach-of-fiduciary-duty claim against a law firm arising from the firm’s later representation of an allegedly adverse former joint client in related litigation. The claim was based on the firm’s exercise of the right to petition, but the estate failed to make a prima facie showing of damages or fee forfeiture because it produced no evidence that James paid fees to the firm or that the estate suffered recoverable loss from the alleged breach.
Handley v. Spec’s Family Partners Ltd., No. 14-25-00162-CV (Jewell, Wilson, Boatman, JJ.): Affirming in part and reversing and remanding in part, the Fourteenth Court held that a customer’s pleading under was sufficient to state a premises-liability claim against Spec’s under Rule of Civil Procedure 91a, but not a negligent-activity claim. Accepting the petition’s allegations as true, the plaintiff adequately alleged that Spec’s owned or possessed the premises, that a dangerous condition outside the store caused her fall, and that Spec’s failed to warn or make the condition safe, so dismissal of the premises-defect theory—which required consideration of evidence outside the pleadings—was improper. But dismissal of the negligent-activity theory was proper because the pleaded trip-and-fall facts described a premises condition, not injury caused by a contemporaneous negligent activity.
Hendrix v. Power Rental Solutions, LLC, No. 14-24-00489-CV (Wise, Hart, Bridges, JJ.): Reversing and remanding, the Fourteenth Court held that a nearly $2 million default judgment could not stand because the record didn’t include the citation allegedly served through substituted service. Strict compliance with the rules governing issuance, service, and return of citation must affirmatively appear on the face of the record, and without the citation the court could not confirm that service complied with Texas Rule of Civil Procedure 99. Because the record did not show proper service, the trial court lacked personal jurisdiction over the defendants, rendering the default judgment void.
Kotts v. M.A. Mills, P.C., No. 14-25-00195-CV (Jewell, Wilson, Boatman, JJ.): Affirming, the Fourteenth Court held that the 2019 TCPA amendments applied to claims added in 2025 to a lawsuit originally filed before the amendments. Reading “action” in the amendments’ effective-date provision to mean a newly added claim rather than the entire lawsuit, the court concluded the amended TCPA governed and required at least 21 days’ written notice of the hearing. Because Kotts and Bou-Matic gave only 10 days’ notice, the trial court properly denied their TCPA motion to dismiss.
Oak Creek Homes, LLC v. Allen, No. 14-24-00857-CV (Wise, Hart, Boatman, JJ.): Affirming as modified, the Fourteenth Court held that the evidence was legally sufficient to support a $20,000 mental-anguish award to Juan Allen but not a matching award to Kellie Allen in a home-defect case involving a water leak and mold damage. Juan’s testimony about counseling, sleep disruption, exacerbated neck pain, fear that an electrical defect would kill the family in a fire, and ongoing effects on his work provided some evidence of the nature, duration, and severity of compensable mental anguish. But Kellie’s evidence of stress, worry, frustration, and trouble sleeping, without more, did not rise to a similar level of compensable mental-anguish damages.
Arguments
The next matchups worth watching are the upcoming oral arguments at the First and Fourteenth Courts.
1COA
Russell v. Sadler, No. 01-24-00843-CV (Gunn, Caughey, Morgan, JJ.): Did the trial court err in granting summary judgment on plaintiff’s breach-of-contract claim based on the existence of fact issues on contractual ambiguity?
Appellant: Thomas Michel (Griffith, Jay & Michel)
Appellees: Chad Arnette (Kelly Hart & Hallman)
Argument: April 16 at 2:30 pm
Amussen v. Trimble, No. 01-24-00496-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Did a divorce decree require Wife to turn over a 401(k) account to Husband?
Appellant: Josh Woods (Wright Close Barger & Guzman)
Appellee: Jerry McKenney, Esq.
Argument: April 22 at 1:30 pm
Harris County v. A.D., No. 01-24-01020-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): In a car-crash case, did the trial court err in denying the County’s plea to the jurisdiction under the Texas Tort Claims Act where school-zone lights failed to activate?
Appellant: Amy VanHoose (Office of Harris County Attorney)
Appellees: Meredith Smith (Law Office of Richard J. Presutti)
Argument: April 22 at 3 pm
14COA
Pan v. Wang, No. 14-25-00240-CV (Christopher, C.J., Hart, Antú, JJ.): Many issues in a case involving a failed romantic relationship, which resulted in a $60,000 jury verdict.
Appellants: Wanchan Ohyan (Ohyan Law Group)
Appellees: Yanpin Yang (Law Offices of Yang & Associates)
Argument: April 14 at 2 pm
Autobyzack, Inc. v. Thomas, No. 14-25-00859-CV (Christopher, C.J., Hart, Antú, JJ.): In a car-deal dispute, did the trial court err in granting summary judgment to an insurance company on a breach-of-contract claim involving a Certificate of Insurance, and did the court err in denying the company’s motion for directed verdict on the plaintiff’s breach-of-contract claim?
Appellant: Michael Kerensky, Esq.
Appellees: William Green, Esq. and George Vie, Esq.
Argument: April 14 at 2 pm
Composite Advanced Technologies, LLC v. National Heat Treat, LLC, No. 14-25-00347-CV (Wise, McLaughlin, Bridges, JJ.): In a commercial dispute, did the trial court err in granting summary judgment based on a disputed issue of contract formation?
Appellant: Ernest Leonard (Friedman & Feiger)
Appellee: Gregory Ave (Walters Balido & Crain)
Argument: April 15 at 2 pm
Columbia/HCA of Houston, Inc. v. Fondren Orthopedic Ltd., No. 14-25-00216-CV (Jewell, Wilson, Boatman, JJ.): Many issues in a commercial dispute arising from a partnership agreement, which resulted in a $26 million judgment.
Appellant: Eileen O’Neill (Ware, Jackson, Lee, O’Neill, Smith & Barrow)
Appellee: Kelsi White (AZA)
Argument: April 16 at 2 pm
Roberts v. State, No. 14-25-00061-CR (Christopher, C.J., Hart, Antú, JJ.): Did the trial court err in denying the defendant’s motion to suppress evidence, and did the court err in admitting suppressed statements?
Appellant: Mark Bennett (Bennett & Bennett)
Appellees: Trey Picard (Brazoria County Criminal District Attorney’s Office)
Argument: April 21 at 2 pm
Hernandez v. State, No. 14-25-00292-CR (Christopher, C.J., Hart, Antú, JJ.): In a murder case, did the trial court err in refusing an accomplice-witness instruction, and was the defendant’s right to confrontation violated under the rule of optional completeness?
Appellant: Corey Fawcett (Harris County Public Defender’s Office)
Appellees: Zachary Gibson (Harris County District Attorney’s Office)
Argument: April 21 at 2 pm
& Beyond
We now move from the South Regional, hosted here in Space City, to the East Regional, hosted in our Nation’s Capital.
SCOTUS
Opinion
Chiles v. Salazar, No. 24-539 (Tenth Circuit): Does a Colorado law prohibiting a mental-health counselor from engaging in so-called “conversion therapy” violate the First Amendment when the counselor’s only treatment regimen is talk therapy?
Majority (Gorsuch, J., joined by Roberts, C.J., Thomas, Alito, Sotomayor, Kagan, Kavanaugh, Barrett, JJ.): Yes. Colorado’s law is content-based—and thus ordinarily triggers heightened review—because it prohibits the mental-health counselor from discussing topics based on their content (namely, topics that might constitute “conversion therapy”). Nor is this conclusion altered by casting the regulated activity as medical treatment, where rational-basis review would apply. Colorado’s law does not incidentally burden speech in the goal of regulating conduct: Instead, this position is foreclosed by precedent, and adopting the position proposed by Colorado and the dissent would create a risk of eroding free-speech rights when made by medical professionals. And the law is an uneasy fit with licensing laws that have typically been found to be beyond the First Amendment’s scope, because those laws tend to regulate professional entry requirements, not what professionals may speak about once licensed.
Concurrence (Kagan, J., joined by Sotomayor, J.): Yes, but if Colorado had enacted a content-based but viewpoint-neutral law, the question would be much closer. Such laws have called for “complex[] and nuance[d]” analysis by the Supreme Court in determining whether they are constitutionally permissible, and that analysis could be particularly challenging in the context of medical treatment, where regulating speech might be incidental to non-regulated activities and conduct.
Dissent (Jackson, J.): No. Colorado’s law governs the practice of medicine, which has long been considered within the state’s police powers, and the government has the authority to regulate professions even where the profession entails speech. The majority’s analysis fails to appreciate the specific context in which the First Amendment claims arose, does not consider the impetus for the law’s enaction or the law’s intended purpose, and misreads precedent in concluding the law is presumptively unconstitutional.
Orders
In addition to its usual list of denials, the Court GVR’d several others (two of which were based on recent opinions from the Court and one of which involved a famous criminal defendant accused of lying to Congress), and proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, and Evidence.
The Court also granted certiorari in two cases:
Younge v. Fulton Judicial Circuit District Attorney’s Office, No. 25-352 (Eleventh Circuit): May a defendant seek summary judgment relying on an affirmative defense that was not pleaded in its original answer without seeking to amend its answer and where amendment would be barred under Federal Rule of Civil Procedure 16?
Johnson v. U.S. Congress, No. 25-735 (Eleventh Circuit): Does the Veterans’ Judicial Review Act bar district courts from hearing challenges to acts of Congress that affect veterans’ benefits?
One cert. denial drew a dissent from Justice Sotomayor:
Skinner v. Louisiana, No. 25-1 (Supreme Court of Louisiana): Did the Louisiana Supreme Court err when it rejected a criminal defendant’s claims based on Brady v. Maryland when the U.S. Supreme Court had previously determined his co-defendant demonstrated a Brady violation?
Order (per curiam): Cert. denied.
Dissent (Sotomayor, J., joined by Jackson, J.): Yes. The wrongfully withheld evidence found to constitute a Brady violation in the co-defendant’s case was also wrongfully withheld here, so equality of treatment demands a similar finding. In fact, the Brady violation is more acute in this case than for the co-defendant, given both later-discovered evidence and the fact that the conviction was non-unanimous (a result the Court has since declared is unconstitutional). And none of Louisiana’s arguments supporting the result withstand scrutiny: Instead, Louisiana overstates the impact of the defendant’s purported confession, mistakes Brady’s materiality standard, and relies on procedural grounds that, if adopted, would result in perverse incentives.
Finally, the Court invited the Solicitor General to file a brief expressing the views of the United States in an ERISA case:
Aldridge v. Regions Bank, No. 25-590 (Sixth Circuit): May a party seek a surcharge as “appropriate equitable relief” in an ERISA action, and, if not, may a party alternatively pursue state-law contract claims that are separate and apart from an ERISA plan?
Arguments
The second half of April is full of oral arguments, with four set to be heard the week of April 20.
April 20
Striptech v. S.E.C., No. 25-466 (Ninth Circuit): Can the Securities and Exchange Commission seek equitable disgorgement in civil-enforcement suits without a showing that there was pecuniary harm?
T.M. v. University of Maryland Medical System Corporation, No. 25-197 (Fourth Circuit): Does the Rooker-Feldman doctrine—which bars federal district courts from reviewing complained-of judgments from state courts—apply when the underlying state-court decision remains subject to further state-court review?
April 21
Federal Communications Commission v. AT&T, No. 25-406 (Fifth Circuit)1, consolidated with Verizon Communications v. Federal Communications Commission, No. 25-567 (Second Circuit): Are the FCC’s assessment and enforcement procedures for monetary penalties based on violations of the Communications Act of 1934 consistent with the Seventh Amendment and Article III?
April 22
Bondi v. Lau, No. 25-429 (Second Circuit): Must the government prove it had clear and convincing evidence that a lawful permanent resident committed a particular offense at the time of the lawful permanent resident’s last reentry into the United States in order to remove the lawful permanent resident from the United States?
All oral arguments can be livestreamed here.
SCOTX
From One First Street to 14th & Colorado, the Justices in Texas also issued a full-court press of opinions.
Opinions
In re Zaidi, No. 24-0245 (Fourteenth Court)2: In this original proceeding, must a law firm employing a nonlawyer staff member who switches sides in litigation be disqualified where the switch did not occur when the nonlawyer was hired and the nonlawyer did not begin work on the matter until years later? And does a party waive the right to seek disqualification if they receive e-filing notifications listing the nonlawyer as participating?
Majority (Devine, J., for unanimous Court)3: Yes and no. As to the first question, the presumption that nonlawyers share confidential information gained through prior representation of an adverse party is not rebutted unless there is evidence the firm took “prophylactic measures” to ensure such nonlawyers will be screened on matters related to their prior employment. This bright-line rule—that firms must admonish nonlawyers from sharing confidential information gleaned from prior work for the opposing side—is easily administrable and creates only minimal burdens on the firm, and the Court has never required proof of actual prejudice to the opposing side as such a requirement would “defeat the purposes of the presumption framework.” As to the second question, the real parties in interest failed to demonstrate that the disqualification request was waived as a matter of law because the e-filing notices were sent to a party who wouldn’t have been aware of the conflict and uncontroverted affidavits showed the objecting party were diligent in pursuing its rights.
H.E.B, LP v. Peterson, No. 24-0310 (Thirteenth Court): Did the court of appeals err in reversing the grant of a no-evidence motion for summary judgment in a slip-and-fall premises liability case based on constructive notice when there was no evidence showing the duration an unreasonably dangerous condition existed?
Majority (Bland, J., for unanimous Court): Yes. The mere fact that a store suffered previous leaks during rainstorms is insufficient to demonstrate constructive knowledge of a dangerous condition resulting from that leak, particularly where there is no evidence tying the leak to the location where the dangerous condition existed. Instead, a party must demonstrate through evidence that the duration of the existence of the dangerous condition was long enough to put any reasonable premises owner on notice of the possibility of a dangerous condition, which is a “difficult” standard to meet.
Spectrum Gulf Coast, LLC v. City of San Antonio, No. 24-0794 (Thirteenth Court): Did the court of appeals err in concluding the Public Utility Regulatory Act (PURA), Texas Utility Code § 54.204(b) & (c), applied in a breach of contract action when the contract specifically stated it was subject to “laws, ordinances, and regulations” affecting the parties’ rights and obligations?
Majority (Young, J., for unanimous Court)4: Yes. PURA prevents municipally owned utilities from discriminating “for or against a certified telecommunications provider,” and violating this statute necessarily affects a telecommunications provider’s rights in the marketplace. Given the contract’s expansive language requiring adherence to “all laws, ordinances, and regulations” that may affect a parties’ rights, violating this statute results in a breach. And this answer does not depend on whether the contract incorporates subsequent legal changes to the rights and obligations of the parties, because the “all laws” clause evinces the parties’ anticipation of future legal changes, a finding supported by the “intensely regulated nature of utilities.”
In re Lapuerta, No. 24-0879 (First Court)5: Did the district court err in ordering a new trial following an 11-1 defense verdict when, among other things, the motion for new trial included a letter from the lone dissenting juror that revealed the contents of the jury’s deliberation?
Majority (Blacklock, C.J., for unanimous Court): Yes. The Texas Rules of Civil Procedure and Rules of Evidence each prohibit—with rare exceptions—considering evidence disclosing jury deliberations. While the trial court didn’t expressly rely on the dissenting juror’s letter, the motion for new trial advanced a theory of jury confusion that closely tracked the letter’s allegations, and the Court couldn’t “ignore the possibility that the juror’s improper input is what prompted . . . the new trial order.” Furthermore, none of the court’s grounds for granting a new trial, taken individually or collectively, amounted to legally defensible grounds: The “lost chance of survival” doctrine is well-settled Texas law and is not limited to death cases, the evidence of juror confusion was supported only by the improper letter, and there was nothing in the instruction on proximate cause to justify a new trial.6
Texas Department of Public Safety v. Callaway, No. 24-0966 (Thirteenth Court): Did the Department of Public Safety engage in a discriminatory employment action when it fired a former Texas Ranger following an event the Ranger contended was caused by his post-traumatic stress disorder?
Majority (Sullivan, J., for unanimous Court): No. While employers are generally prohibited from discharging individuals because of a disability, that principle does not apply where the disability limits the employee’s ability to perform her job. And this case proves the wisdom of that exception: Dispatching an employee with debilitating PTSD to “handle stressful situations” would unreasonably endanger citizens and officers alike.
Fasken Oil & Ranch, Ltd. v. Puig, No. 24-1033 (Fourth Court): Did the court of appeals err in concluding a deed’s nonparticipating royalty interest was calculated based on downstream sales prices for processed gas rather than the value of the minerals at the well?
Majority (Bland, J., for unanimous Court): Yes. The deed’s plain text reserved a nonparticipating royalty interest on minerals “produced from the above-described acreage.” Based on this text, the deed reserved a royalty in minerals produced at the well that bears postproduction costs. And the phrase “free of costs forever” doesn’t alter this conclusion, because it merely reflects a royalty interest’s holder’s right to a royalty free of exploration and production costs.
Orders
In addition to its typical denials (of which there were many these past two weeks), the Court denied a motion for rehearing in a case involving the Texas Uniform Fraudulent Transfer Act, drawing a statement from Justice Young:
Executive Workspace-ABC-Preston Road, LLC v. Reserve Capital-Preston Grove SPE, LLC, No. 25-0074 (Fifth Court): Does the termination of a contractual right to future payments constitute a fraudulent “transfer” of an “asset” under the Texas Uniform Fraudulent Transfer Act (TUFTA)?
Statement Respecting Denial (Young, J.): Maybe, but we don’t know because there has been comparatively little guidance from the Texas Supreme Court interpreting TUFTA. While this case is not the proper vehicle for elucidating important principles under TUFTA, the Court’s guidance on this statute is long overdue, and the Court will hopefully take an appropriate case in the future to help “develop this area of law, which is unquestionably important to our State’s jurisprudence.”
Arguments
The Court has concluded arguments for this Term.
CA5
While Austin advanced, New Orleans was ready for its next round too, with the Fifth Circuit putting its own cases on the board.
Opinions
Parker v. Hooper, No. 23-30825 (en banc): Did the court have appellate jurisdiction to review the district court’s remedial order, and did that order violate the Prison Litigation Reform Act and governing standards under the Eighth Amendment, Americans with Disabilities Act, and Rehabilitation Act?
Majority (Jones, J., joined in full by Elrod, C.J., Smith, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, J.; and in certain parts by Richman, Southwick, JJ.): Yes and yes. Vacating and remanding, the Fifth Circuit held that the remedial order was appealable under either Sections 1291 or 1292(a)(1) because it finally resolved liability and remedy in practical terms and imposed an operative remedial framework. The order also violated the PLRA by granting prospective relief without needs–narrowness–intrusiveness findings, by using three special masters through a nonstatutory selection process, and by shifting their compensation to the State. Ongoing improvements in staffing, recordkeeping, and prison operations also undermined any finding of continuing deliberate indifference, and the ADA and RA did not authorize the district court’s medical-care micromanagement.
Concurrence in Part and Dissent in Part (Richman, J.): Yes and no. Appellate jurisdiction existed, and the PLRA required remand because any prospective relief had to be narrowly drawn and least intrusive. But the record still showed deliberate indifference as to at least two inmates, and there was evidence supporting ADA and RA violations tied to disciplinary accommodations rather than medical treatment. Remand is appropriate for further consideration of any tailored prospective relief.
Dissent (Haynes, J., joined by Stewart, Graves, Higginson, Douglas, Ramirez, JJ.): No. The remedial order wasn’t final under Section 1291 because the district court expressly contemplated substantial additional proceedings before any ultimate remedial decree. Nor was it an appealable injunction under Section 1292(a)(1), because it did not impose substantive medical-care or disability-accommodation obligations and instead only directed the parties to advance the litigation by proposing special masters and cooperating with them. And even if jurisdiction existed, the case should go back for the district court to reassess matters in light of the stay and changed circumstances.
Dissent (Higginson, J., joined by Stewart, Graves, Douglas, Ramirez, JJ.): No. The order remained tentative and incomplete because the district court had not yet adopted any remedial plan, and ordinary appellate review would remain available after a genuine final judgment. The order merely regulated the progress of ongoing litigation and required the parties to meet and confer, rather than granting an injunction.
In re Ryan, Nos. 25-11253, 25-11254 (Southwick, Duncan, Engelhardt, JJ.) (per curiam): Denying mandamus, the Fifth Circuit first held that the victims’ families’ challenge to Boeing’s earlier deferred-prosecution agreement was moot after Boeing breached that agreement and it no longer bound the parties. As to the later non-prosecution agreement, the Department of Justice didn’t violate the families’ rights under the Crime Victims’ Rights Act because the Government met with them about the agreement, compared views, and didn’t mislead them about timing or limitations. Finally, the CVRA doesn’t authorize appellate review of the district court’s underlying dismissal under Federal Rule of Criminal Procedure 48 on public-interest grounds.
In the Matter of South Coast Supply Co., No. 25-20176 (Richman, Duncan, Oldham, JJ.): Affirming, the Fifth Circuit held that Briar Capital waived appellate review of the sufficiency of the evidence supporting the jury’s verdict on its bankruptcy preference claim by failing to move for judgment as a matter of law under Federal Rules of Civil Procedure 50(a) and 50(b). The panel rejected Briar Capital’s argument that plain-error review remained available despite that omission. Yet even under that standard, the record contained some evidence supporting the verdict because the jury heard testimony that South Coast’s assets may have been undervalued and that its financial condition remained uncertain.
In re Google, L.L.C., No. 25-40788 (Haynes, Higginson, Ho, JJ.): Was Google entitled to mandamus relief directing transfer of Branch Metrics’ antitrust suit from the Eastern District of Texas to the Northern District of California under Section 1404(a)?
Majority (Ho, J.): Yes. Granting mandamus, the Fifth Circuit held that the district court clearly abused its discretion by giving undue weight to the court-congestion factor in a complex case where median disposition statistics had little value. The district court also made that speculative factor dispositive even though every other factor either favored transfer or was neutral. The Clayton Act didn’t amplify deference to Branch’s forum choice beyond ordinary Section 1404(a) principles, so transfer to the Northern District of California was required.
Dissent (Higginson, J.): No. Section 1404(a) leaves a fact-intensive decision to the district court, and mandamus review is limited to clear abuses that produce patently erroneous results. Any uncertainty in the congestion factor stemmed from the Fifth Circuit’s own precedent, so it was a poor basis for finding indisputable error.
McNutt v. U.S. Department of Justice, No. 24-10760 (Jones, Graves, JJ., Rodriguez, J. [sitting by designation]): Affirming in part and reversing in part, the Fifth Circuit held that all four individual plaintiffs and the Hobby Distillers Association had standing to challenge a 150-year-old law banning at-home distilling of consumable spirits—and it upheld injunctive relief prohibiting enforcement of that ban. The challenged provisions violate the Taxation Clause because they don’t raise revenue or facilitate tax collection, but instead prohibit and criminalize home distilling in houses, yards, and sheds, thereby preventing the creation of taxable spirits. They also violate the and Necessary and Proper Clause because they were neither plainly adapted nor proper means of carrying Congress’s taxing power into execution.
Arguments
The Fifth Circuit’s next argument session begins the week of April 27.
15COA
From the regional rounds to the statewide stage, the Fifteenth Court delivered one particularly interesting jurisdiction opinion, while preparing to hear a set of scoreboard-worthy arguments—including the court’s first oral arguments on a Business Court case to have reached final judgment.
Opinions
In re Shelton, No. 15-25-00152-CV (Brister, C.J.; Field, Farris, JJ.) (orig. proceeding): Should a transferred mandamus petition be dismissed as moot after the Fifteenth Court denied the related interlocutory appeal?
Majority (Brister, C.J.): Yes. The mandamus petition raised the same issues as the relator’s interlocutory appeal from the receiver-appointment order, and the court rejected those arguments in the underlying appeal. When a party pursues both an interlocutory appeal and a mandamus petition seeking the same relief on the same grounds, disposition of one makes the other moot.
Concurrence (Farris, J.): Yes, but for a different reason—the Fifteenth Court lacks jurisdiction over the mandamus petition. The court’s writ power extends only to matters within its exclusive intermediate appellate jurisdiction, and this transferred appeal did not fall within that category. While a docket-equalization transfer gives the court jurisdiction over the regular appeal, it doesn’t enlarge the court’s separate and more limited mandamus authority. Thus the petition should have been dismissed for lack of writ jurisdiction rather than mootness.
State v. Alvarez, No. 15-25-00034-CV (Brister, C.J.; Farris, J.; Adams, C.J. [sitting by assignment]): Reversing and rendering, the Fifteenth Court held that the relators could not recover a share of the State’s Medicaid-fraud settlement with Xerox because their qui tam claims were barred by the Texas Medicaid Fraud Prevention Act’s public-disclosure provision. A news station’s reporting had already publicly disclosed the core alleged fraud—that Xerox approved Medicaid claims without meaningful review—and that the relators’ allegations against Xerox were based on that same scheme. Nor did any of the relators qualify as an original source, because their knowledge of Xerox’s alleged fraud was speculative rather than direct and independent.
Hancock v. American Airlines, Inc., No. 15-24-00113-CV (Brister, C.J.; Field, Farris, JJ.): Affirming, the Fifteenth Court held that the federal Anti-Head Tax Act preempted the Texas franchise tax as applied to American’s baggage-fee, ticket-sale, and freight revenues in its franchise-tax report. Although the franchise tax is generally framed as a tax on taxable margin, here it was imposed on or measured by gross receipts from air transportation because those revenue streams flowed through the calculation without any deduction or exclusion and were taxed through the 70% percent margin adjustment. And legally and factually sufficient evidence supported the trial court’s finding that no deductions or exclusions applied to those transportation revenues.
Arguments
Last, the Fifteenth Court has four arguments scheduled for April 23 at 1:30 pm.
Young v. Cook Children’s Health Plan, No. 15-24-00114-CV: Did the trial court lack subject-matter jurisdiction to consider healthcare organizations’ claims arising from their unsuccessful bids to administer the State’s and Medicaid and Children’s Health Insurance Programs, and did the court err in temporarily enjoining the Commissioner from completing the procurement process?
Appellants: Cory Scanlon (Office of Attorney General)
Appellees: Amy Warr (Alexander Dubose & Jefferson)
Amicus Curiae: Jason LaFond (Scott Douglass & McConnico)
Blackstone Holdings III LP v. Primexx Energy Opportunity Fund, LP, No. 15-25-00014-CV: Did the Business Court properly deny the defendants’ special appearances because filing an answer in an earlier iteration of the dispute in one court consents to personal jurisdiction to litigate the same dispute in a later-filed suit in a different court in the same state?
Appellants: David Coale (Lynn Pinker Hurst & Schwegmann)
Appellees: Stephen Shackelford (Susman Godfrey)
Primexx Energy Opportunity Fund, LP v. Primexx Energy Corp., No. 15-25-00120-CV: Did the Business Court properly grant summary judgment to the defendants by finding that they did not breach their duties of good faith and loyalty, and dismiss claims against other defendants based on conclusory control and alter-ego allegations?
Appellants: Stephen Shackelford (Susman Godfrey)
Appellee: Jeremy Fielding (Kirkland & Ellis) and Roger Cowie (Troutman Peppper Locke)
Shannon Medical Center v. Sickels, No. 15-25-00167-CV: Did the trial court err in denying the defendant’s motion to dismiss under Chapter 74 of the Civil Practice and Remedies Code because plaintiffs’ claims were not healthcare-liability claims?
Appellant: David Walsh (Kershaw Anderson King)
Appellees: Kyle Dreyer (Burress Personal Injury Law)
Red Light
The road ends here. Time to cut down the nets!
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Judge Duncan authored the opinion below, joined by Judge Wilson. Judge Haynes concurred only in the judgment.
Chief Justice Christopher and Justices Bourliot and Hassan issued a per curiam opinion denying the mandamus petition.
Justice Bland did not participate in the decision.
Justices Bland and Sullivan did not participate in the decision.
Justices Landau, Countiss, and Guerra issued a per curiam opinion denying the mandamus petition.
Relatedly, this duo’s smarter half discussed the history and contours of the federal rule governing the admissibility of evidence reflecting jury deliberations, written shortly after the U.S. Supreme Court’s opinion in Pena-Rodriguez v. Colorado, 580 U.S. 206 (2016).
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