26-15: Back to School
A look back to the weeks of July 20 and 27 and August 3, with help from the junior judiciary
Welcome back to 1910 & Beyond, your regular briefing on the ever-evolving world of appellate law in Houston and beyond. Each post spotlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
To those who have already subscribed, thank you. If you haven’t yet, I hope you’ll consider joining us!
This week’s theme is inspired by my older boys, who head back to school this week as first- and fourth-graders. One is already unhappy with his classroom assignment and separation from his best friends. On my advice, he and a friend are drafting an “appeal” letter to the school principal.
Feature
MIECO L.L.C. v. Targa Gas Marketing L.L.C., No. 23-20567 (Elrod, C.J.; Higginbotham, Southwick, JJ.) (per curiam): When we last visited MIECO in 25-15: Please Allow Me to Introduce Myself, the Fifth Circuit had reversed summary judgment for Targa and held that a nonproducer’s “gas supply” could include spot-market sources it regularly used to perform its contract. Targa sought en banc rehearing, arguing—with effective amicus assistance—that the panel’s interpretation conflicted with prior Fifth Circuit precedent and could unsettle expectations surrounding the industry-standard NAESB contract.
Though denying en banc rehearing, the petition still changed the result. Treating the petition as one for panel rehearing, the panel withdrew the force-majeure portion of its original opinion and certified two questions to the Supreme Court of Texas: whether a nonproducer seller must enter the spot market during a force-majeure event if it previously used that market for part of its supply—and, if so, what “reasonable efforts” require. In certifying these questions, the panel acknowledged both that its original interpretation may have affected settled industry expectations and that the answer was not clear from existing Texas authority.
As is its customary practice, the Supreme Court has accepted the questions and set argument for December 2, 2026. The answers may determine whether historical purchasing practices define a seller’s contractual gas supply or whether spot-market purchases instead belong in the separate analysis of reasonable efforts. Just as important for appellate lawyers, the case shows that an adverse panel opinion need not be the final bell when the decision rests on an uncertain Erie prediction: A focused rehearing petition, meaningful industry amicus support, and certification can give the court another way to reach the right classroom.
N.B.: When a federal panel makes consequential state law without clear guidance from the State’s highest court, don’t pack up for the summer after the opinion issues. Use rehearing to sharpen the uncertainty, build the case for certification, and enlist amici who can explain why the answer matters beyond the parties.
1910
Orders and Opinions
And now, to our local courts here in Houston. Below are brief summaries of notable opinions from the First and Fourteenth Courts.
1COA
Christie v. Heitmann, No. 01-24-00587-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Affirming a take-nothing judgment after a jury trial, the First Court concluded that factually sufficient evidence supported the jury’s rejection of Christie’s contract and fraud claims arising from a promissory note’s bonus provision. The jury could credit Heitmann’s testimony that prepayment extinguished the bonus obligation, and the finding that Christie wasn’t entitled to a bonus also negated the injury element of fraud. Counsel’s unobjected-to remarks that certain answers would end the jury’s work weren’t harmful because they told the jury little more than the conditional charge itself.
Cooper v. Brident Dental & Orthodontics, No. 01-24-00841-CV (Guerra, Gunn, Morgan, JJ.): Affirming dismissal with prejudice of Cooper’s dental-negligence claims, the First Court held that she failed to timely serve an expert report meeting Chapter 74’s minimum requirements. One document was untimely, and the document labeled “EXPERT REPORT” contained only Cooper’s credentials, without an expert opinion addressing the defendants’ standard of care, breach, or causation. The court also affirmed the award of reasonable attorney’s fees, holding that a trial court couldn’t waive the prevailing party’s statutory entitlement to fees on the basis of indigence.
Lajita Homes, LLC v. La Mancha, Ltd., No. 01-24-00421-CV (Caughey, Guiney, Morgan, JJ.): Reversing summary judgment for the defendants on Lajita’s wrongful-foreclosure claim, the First Court concluded that the evidence raised a fact issue about whether the required foreclosure notice was mailed. Although the foreclosure deed and trustee’s affidavits supplied prima facie evidence of proper service, Lajita countered with an unstamped certified-mail receipt, unavailable postal tracking information, and affidavits denying receipt. That evidence was sufficient to dispute whether notice was sent by prepaid certified mail.
Arthur P. Holdings, LP v. Blackburne & Brown Mortgage Fund I, No. 01-24-00500-CV (Adams, C.J.; Gunn, Johnson, JJ.): Affirming a Rule 91a dismissal, the First Court held that the borrowers’ contract and declaratory-judgment claims impermissibly attacked an agreed final judgment authorizing the lender to collect $400,000 in liquidated damages after foreclosure. Because the borrowers sought to avoid the binding effect of a judgment they didn’t allege was void, they couldn’t challenge the damages provision collaterally or recast the challenge as a breach-of-contract claim. Nor was the trial court required to issue findings of fact and conclusions of law after a dismissal without a trial or evidentiary hearing.
Hensley v. Alexander, No. 01-24-00550-CV (Rivas-Molloy, Johnson, Dokupil, JJ.): Affirming a judgment on a $250,000 promissory note, the First Court concluded that legally and factually sufficient evidence supported the jury’s findings that Hensley signed the note electronically and that the Alexanders owned or held it. The note bore Hensley’s electronic signature, contemporaneous emails referred to its execution and revised maturity date, Bryan Alexander testified that Hensley said he had signed it, and Hensley supplied wiring instructions before the funds were transferred. The Alexanders didn’t have to produce the original note because their testimony and the admitted copy could establish ownership or holder status.
Truong v. Hoang, No. 01-24-00536-CV (Adams, C.J.; Guerra, Guiney, JJ.): Reversing the marital-estate division, the First Court held that the trial court abused its discretion by awarding Hoang over $380,000 as his community-property share of income from Truong’s separately owned nail salon. Although the trial court could decline to deduct business expenses that Truong failed to substantiate, no evidence supported its assumption that the salon retained 60 percent of gross receipts and paid the remaining 40 percent as labor costs, because counsel’s unsworn statement wasn’t evidence. The court remanded for a new property division.
Tomaszewski v. K. Hovnanian of Houston II, LLC, No. 01-24-00320-CV (Guerra, Caughey, Dokupil, JJ.): Reversing discovery-sanctions orders and a related contempt order, the First Court held that the evidence was insufficient to support the $54,000 awarded for costs, expenses, and attorney’s fees. Some amounts lacked any evidentiary support, and the available billing records didn’t establish the reasonableness of the hours and rates, requiring remand for a new hearing on the amount of sanctions. Even so, the trial court didn’t err by imposing monetary sanctions instead of the requested death-penalty sanctions. The court also declined to reinstate the appellants’ nonsuited claims because they hadn’t preserved that request.
170 Rittenhouse LLC v. BOKF National Association, No. 01-25-00487-CV (Guerra, Gunn, Morgan, JJ.): Reversing summary judgment for BOKF in a property-tax dispute, the First Court held that a sales contract assigning the buyer responsibility for “‘rollback’ or similar taxes” was ambiguous as applied to taxes assessed after the property lost its religious-use exemption. The taxes weren’t rollback taxes because they recaptured previously exempt taxes without imposing a penalty, but they were similar to rollback taxes in some respects because they arose from the loss of an exemption and a change in ownership. Because both parties offered reasonable interpretations of “similar taxes,” their intent presented a fact question requiring remand.
14COA
Mastandrea v. Whitestone REIT, No. 14-24-00924-CV (Jewell, McLaughlin, Antú, JJ.): Did Whitestone conclusively establish that it properly terminated Mastandrea for cause under his employment agreement, entitling it to summary judgment?
Majority (McLaughlin, J., for unanimous Court): No. Whitestone’s reasonable belief that cause existed didn’t establish its right to summary judgment because the agreement didn’t give Whitestone sole discretion to determine cause or require deference to its decision. Whitestone also failed to connect the asserted grounds and supporting evidence to every requirement and exception in the agreement’s for-cause provisions, and its alternative argument depended partly on credibility determinations.
Concurrence (Jewell, J.): No. The agreement’s unambiguous language didn’t give Whitestone exclusive authority to determine whether cause existed, and Texas hasn’t adopted a default rule insulating an employer’s reasonable, good-faith decision from a jury’s review. Other States, however, apply that approach, and perhaps the Supreme Court of Texas should consider “this national conflict.” Whitestone’s alternative ground also failed because its motion didn’t conclusively negate the agreement’s broad exceptions to the confidentiality restriction.
City of Houston v. Perez, No. 14-24-00751-CV (Christopher, C.J.; Wilson, Bridges, JJ.): Did conflicting evidence about whether a City employee was driving to lunch preclude summary judgment on the City’s governmental-immunity defense, and is negligent entrustment actionable under the Texas Tort Claims Act?
Majority (Wilson, J., for unanimous Court): Yes and no. The Fourteenth Court held that the employee’s equivocal statement that he was “likely” going to lunch didn’t conclusively rebut the course-and-scope presumption arising from his operation of a City-owned vehicle, particularly because his activity sheet recorded lunch about two and a half hours after the collision. But negligent entrustment falls outside the Tort Claims Act’s motor-vehicle waiver because it concerns the employer’s antecedent decision to entrust the vehicle, not an employee’s operation or use of it. So while the trial court properly denied summary judgment on the vicarious-liability claim, it erred in denying summary judgment on the negligent-entrustment claim.
Concurrence (Christopher, C.J.): Beyond the majority’s rationale, the employee couldn’t seek dismissal under Section 101.106 while maintaining that he acted outside the scope of employment. Because only a governmental unit may move under subsection (e), the employee’s motion was substantively a subsection (f) motion that adopted the plaintiff’s course-and-scope allegation as the employee’s own judicial admission. That admission supplied an independent basis for denying the City’s summary-judgment motion because it prevented the employee from offering contrary evidence, though not binding the City itself.
Ali v. Discover Bank, No. 14-25-00912-CV (Jewell, Bridges, Hart, JJ.): Reversing the appointment of a post-judgment receiver, the Fourteenth Court held that Discover failed to produce evidence that its judgment remained unpaid and that Ali owned nonexempt property. Discover relied on deemed admissions premised on Ali’s supposed failure to answer post-judgment discovery, but Ali’s certificate of service created an unrebutted presumption that he timely served responses. Because Discover’s unsworn motion wasn’t evidence and it offered no other proof satisfying the turnover statute, the trial court abused its discretion by appointing the receiver.
In re Smith, No. 14-25-00916-CV (Bridges, Boatman, Antú, JJ.) (per curiam) (orig. proceeding): Conditionally granting mandamus relief, the Fourteenth Court held that a Sysco employee who delivered goods in Houston qualified for the Federal Arbitration Act’s transportation-worker exemption. Under the Supreme Court’s recent decision in Flowers Foods, Inc. v. Brock, a worker may fall within the exemption by transporting goods on an intrastate leg of an interstate journey, and Smith’s declaration established his direct, necessary, and active role in moving products that originated outside Texas and the United States. Because compelling Smith to arbitrate would impair his rights under the FAA, mandamus relief was appropriate.
BICO Drilling Tools, Inc. v. Explora Directional Drilling, LLC, No. 14-25-01033-CV (Christopher, C.J.; McLaughlin, Boatman, JJ.): Reversing a take-nothing judgment for Kniss, the Fourteenth Court held that legally insufficient evidence supported his economic-duress defense to enforcement of a personal guaranty. Duress requires a threat to do something the threatening party has no legal right to do, and BICO acted within its rights by conditioning credit and delivery of drilling motors on execution of the guaranty. The court rendered judgment holding Kniss jointly and severally liable with Explora, reversed Kniss’s attorney’s-fee award, and affirmed the unchallenged judgment against Explora.
City of Houston v. Vera, No. 14-25-00719-CV (Wise, McLaughlin, Bridges, JJ.): Affirming in part and rendering judgment in part, the Fourteenth Court held that the City failed to rebut the presumption that its employee acted within the scope of employment because he was driving a City-owned vehicle when the collision occurred. As to notice, Vera offered no evidence that the City actually received his formal notice letter; receipt of notice, not when the plaintiff sends such notice, controls under the TTCA. But proof of an accident report gave the City actual notice of Vera’s property-damage claim, though not his personal-injury claims. The report identified the collision, the parties, the property damage, and the City employee’s alleged fault, but it didn’t indicate that anyone was injured.
American Historical Association v. Bryan, No. 14-24-00965-CV (Christopher, C.J.; Wilson, Boatman, JJ.): Reversing the denial of a TCPA motion to dismiss, the Fourteenth Court concluded that Bryan—an undisputed public figure—failed to present clear and specific evidence of actual malice supporting his defamation claim against a professional association and a historian. Several challenged statements about Bryan’s lawsuit and its significance were nonverifiable opinions, while other descriptions were substantially true or supported by witness accounts and contemporaneous reporting. Even assuming some statements were false or imprecise, the record contained no evidence that the defendants knew they were false or seriously doubted them when publishing the editorial.
EQT Corp. v. Baker Botts, LLP, No. 14-25-00677-CV (Wise, McLaughlin, Bridges, JJ.): Affirming a judgment confirming an arbitration award, the Fourteenth Court held that Baker Botts’s engagement letter bound EQT Corporation’s nonsignatory subsidiaries because it expressly defined the client to include the corporation and its subsidiaries. The trial court also acted within its discretion by joining the parent corporation as an indispensable party because the related entities’ claims exposed Baker Botts to a substantial risk of multiple or inconsistent obligations. The agreement’s incorporation of the AAA Commercial Arbitration Rules delegated questions about its temporal scope to the arbitrators, so EQT’s argument that the agreement didn’t apply retroactively to earlier alleged malpractice didn’t support vacatur.
Hayden v. Federal Home Loan Mortgage Corp., No. 14-25-00883-CV (Christopher, C.J.; McLaughlin, Boatman, JJ.): May borrowers pursue declaratory-judgment, breach-of-contract, and quiet-title claims based on an alleged violation of the Texas Constitution’s home-equity-loan closing-location requirement when no foreclosure is pending?
Majority (Boatman, J., for unanimous Court): Yes, but only in part. The Fourteenth Court held that the declaratory-judgment claim wasn’t ripe because the constitutional protections operate as a defense to foreclosure, not an affirmative means of obtaining loan forfeiture. The breach-of-contract claim survived the jurisdictional plea only to permit the borrowers to plead actual damages because neither the $1,000 payment nor refinancing would correct the allegedly improper closing location four years later; here as well, forfeiture is unavailable. The quiet-title claim was ripe because an allegedly invalid homestead lien creates a present controversy even without foreclosure.
Concurrence (Christopher, C.J., joined by Boatman, J.): Maybe. While existing Fourteenth Court precedent required this outcome, the Supreme Court of Texas’s recent decision in Staub v. BBVA USA may have effectively overruled that precedent by identifying a new closing as a possible cure for another pre-origination violation. But at the same time, it’s unclear how a new closing—under worse terms—“would provide any meaningful cure[.]”
Arguments
Classes are back in session, but oral argument isn’t: the First and Fourteenth Courts have no arguments scheduled in the next few weeks.
& Beyond
That covers the Houston syllabus. Now for the extracurricular reading.
SCOTUS
In our Nation’s capital, the Justices finished June’s heavy coursework and took most of July off—issuing a single cert. grant and no other orders or opinions.
Opinions
The Court issued no opinions as they remain on their summer recess. The assigned reading will begin sometime this fall.
Orders
The Justices didn’t add much homework for next Term. In addition to the usual list of denials, the Court granted certiorari in one case:
Jouppi v. Alaska, No. 25-246 (Supreme Court of Alaska): When considering whether a fine violates the Excessive Fines Clause under the Eighth Amendment, should courts approach the underlying offense based on the elements of the offense, or should there be an individualized assessment based on the defendant’s conduct?
Arguments
The courtroom bell will ring again when the Court returns from summer break.
SCOTX
Our state’s Supreme Court was also quiet these past few weeks, with the notable exception of MIECO.
Opinions
No opinions from the Court over the past three weeks: Class remains out for summer.
Orders
As usual, denials received nearly all the marks on the Court’s customary Fridays orders lists. The Court did assign itself some homework by accepting the certified questions in MIECO, as discussed above:
MIECO L.L.C. v. Targa Gas Marketing, L.L.C., No. 26-0802 (Fifth Circuit): (1) Under Texas contract interpretation principles, do the force majeure provisions of the North American Energy Standards Board form contract require the seller of natural gas who is not a gas producer to enter the spot market during a force majeure event if that seller had already been using the daily spot or market for part of its gas supply? (2) If there is an obligation under those facts, how should “reasonable efforts” to provide gas from the spot market be defined?
Arguments
Oral arguments will return when class resumes this fall.
CA5
The Supreme Courts may have recessed for the summer, but class remained in session in New Orleans at the Fifth Circuit.
Opinions
United States v. Palomares, No. 25-40026 (Higginbotham, Smith, Oldham, JJ.): Reversing the dismissal of a felon-in-possession charge, the Fifth Circuit held that the Second Amendment permits the government to disarm Palomares based on his prior conviction for transporting illegal aliens. Alien smuggling is an inherently dangerous felony—thus justifying lifetime disarmament—because it is connected to cartel violence and exposes migrants and government agents to death, injury, exploitation, and dangerous transportation conditions.
Exxon Mobil Corp. v. Occupational Safety & Health Review Commission, No. 25-60108 (Elrod, C.J.; Smith, Wilson, JJ.): Granting Exxon’s petition for review, the Fifth Circuit vacated OSHA’s rule requiring employers to record work-related mental illnesses, along with the citation and penalty imposed on Exxon for failing to record an employee’s PTSD diagnosis. The best reading of 29 U.S.C. § 657(c)(2) limits “illnesses” to physical ailments because the statute’s surrounding text, recordkeeping framework, and contemporaneous dictionary definitions focus on physical workplace harms. OSHA thus exceeded its delegated authority by extending the recording requirement to mental illnesses.
Computer & Communications Industry Association v. Paxton, Nos. 24-50721, 25-50096 (Higginbotham, Ho, Douglas, JJ.): Does Section 230 preempt Texas’s requirement that social-media platforms monitor and filter content available to known minors?
Majority (Douglas, J., joined by Higginbotham, J.): Yes. Section 230 preempts the monitoring-and-filtering requirement because enforcing it would treat platforms as publishers by imposing liability for decisions to monitor, screen, alter, or remove third-party content. While CCIA and NetChoice’s preliminary injunction thus can stand, the SEAT plaintiffs’ preliminary injunction cannot. Those plaintiffs lacked standing to challenge the monitoring-and-filtering requirement because they had not sufficiently shown that platforms were likely to respond to the law by restricting their speech, and Supreme Court precedent foreclosed their challenge to the law’s age-verification requirement.
Concurring in Part and Dissenting in Part (Ho, J.): No. Section 230 protects platforms from liability for publishing third-party content, but the Texas law regulates their own speech—the algorithms and other choices through which they curate that content. Because the law imposes a duty to use reasonable curation measures rather than liability for harm caused by third-party content, it isn’t preempted. The remaining state-law questions should be certified to the Supreme Court of Texas.
Bay Area Unitarian Universalist Church v. Ogg, No. 23-20165 (en banc): Do property owners have Article III standing to challenge Texas statutes requiring prescribed signs before criminal-trespass protections apply against licensed handgun carriers?
Majority (Jones, J., joined in full by Smith, Stewart, Duncan, Engelhardt, Oldham, Wilson, JJ.; joined in part by Elrod, C.J. and Willett, J., and in separate part by Ramirez, J.; joined in the judgment only by Richman, Haynes, Southwick JJ.): No. The owners’ asserted injuries weren’t traceable to the defendant law-enforcement officials because the statutes don’t coerce the owners’ conduct, and otherwise rests on “speculation about the defendants’ conduct or that of third parties.” Their requested relief also wasn’t redressable because courts could neither compel the defendants to do anything in relation to the plaintiffs nor rewrite the statutes. Finally, all of the claimed theories of First Amendment injury “are at least doubtful.”
Concurrence in Part (Willett, J., joined by Elrod, C.J.): No. All three standing requirements were absent, but the majority’s redressability reasoning improperly asked whether relief should issue—not whether the requested relief, if granted, would remedy the injury. Redressability failed because the plaintiffs hadn’t identified what an injunction would require the defendants to do and because a declaratory judgment would have no preclusive effect in hypothetical prosecutions involving nonparties.
Dissent (Higginson, J.): Yes. The statutory signage requirements burdened the owners’ fundamental right to exclude by requiring three large, specifically worded signs before criminal-trespass protections applied against handgun carriers. That concrete injury was traceable to officials’ enforcement of the statutory scheme and redressable through a declaration and injunction against enforcing the heightened notice requirements, which is what the plaintiffs sought.
Dissent (Douglas, J., joined by Graves and Higginson, JJ.): Yes. The statutes imposed an asymmetric-speech burden by requiring owners who wished to exclude licensed handgun carriers to use the State’s words and format, unlike owners excluding other entrants. That injury arose directly from the statutory regime and its enforcement, without depending on a third party’s decision to trespass. And “[t]he remedy Plaintiffs seek would not require a judicial rewriting of the statute but merely a declaration of unenforceability of the unconstitutional notice requirements.”
Estate of Fields v. Commissioner of Internal Revenue, No. 25-60403 (King, Higginson, Duncan, JJ.): Affirming an estate-tax deficiency and accuracy-related penalty, the Fifth Circuit held that the transfer of nearly $17 million into a family limited partnership shortly before Fields’s death didn’t qualify for the bona fide-sale exception to Section 2036(a) of the Internal Revenue Code. The Tax Court reasonably found that the asserted purposes involving management succession, asset consolidation, and protection from elder abuse were post hoc justifications rather than substantial non-tax motivations. The Estate also failed to establish reasonable cause or good-faith reliance on professional advice for reporting a roughly $6 million valuation reduction that should have appeared too good to be true, and so the Tax Court properly assessed a 20% accuracy-related penalty on the tax deficiency,
Holloway v. Procter & Gamble Manufacturing Co., No. 25-30556 (Elrod, C.J.; Ho, Ramirez, JJ.) (per curiam): Did Holloway raise a fact issue that P&G terminated him because of racial discrimination or retaliation, or that P&G violated Louisiana law as required for his whistleblower claim?
Majority (per curiam): No. P&G documented legitimate, nondiscriminatory, and nonretaliatory reasons for terminating Holloway, including repeated procurement-policy violations and personal use of a corporate credit card, while Holloway offered no significant evidence of pretext beyond his own impressions and temporal proximity. Bound by the rule of orderliness, the panel declined Holloway’s invitation to abandon the McDonnell Douglas framework. Finally, his whistleblower claim failed because he didn’t show that allowing another employee to sign waste-transportation documents violated any cited law.
Concurrence (Ho, J., joined by Elrod, C.J.): No. The McDonnell Douglas framework lacks a basis in Title VII’s text and improperly requires plaintiffs to prove too much at summary judgment. Because Rule 56 requires only a genuine dispute of material fact—and Title VII doesn’t require a plaintiff to prove that the employer’s stated reason was wholly pretextual—the Court should revisit circuit precedent in an appropriate case.
Saravia Martinez v. Blanche, No. 25-60400 (Haynes, Higginson, Ho, JJ.): Should equitable tolling excuse an untimely petition for review of a reinstated removal order?
Majority (per curiam): No—without explanation.
Concurrence (Ho, J.): No. Though nonjurisdictional, Section 1252(b)(1)’s 30-day deadline is a mandatory claims-processing rule that is never subject to equitable tolling. Rule 26(b), as well as the statute’s text, structure, and context, all foreclose equitable tolling.
Dissent (Higginson, J.): Yes. Equitable tolling is available under Section 1252(b)(1), and here the alien diligently filed her petition and stay motion after Riley v. Bondi changed circuit law that had previously required her to await completion of humanitarian proceedings to appeal.
Polk v. Crawford, No. 25-20524 (Willett, Engelhardt, Douglas, JJ.): Reversing the denial of a preliminary injunction, the Fifth Circuit held that Polk was likely to succeed in showing that Texas’s escrow-officer residency requirement violates Article IV’s Privileges and Immunities Clause. Escrow work is a protected common calling, and Texas offered no evidence that limiting licenses to residents of Texas and adjacent states advances a substantial state interest, particularly because geographic adjacency doesn’t reliably track proximity or regulatory accountability. Polk’s exclusion caused economic and reputational losses unavailable as damages against the Commissioner, constituting irreparable harm. And the equities and public interest support interim relief. The court thus remanded with instructions to enter a preliminary injunction barring enforcement of the residency requirement against Polk.
Crane v. Penske Transportation Management, L.L.C., No. 25-40012 (Wiener, Engelhardt, Oldham, JJ.): Reversing summary judgment in a fatal trucking-collision case, the Fifth Circuit held that Penske could be treated as the driver’s statutory employer even though Penske subcontracted the shipment to a carrier that then arranged for another carrier to supply the truck and driver. Because Penske’s arrangement with the intermediate carrier required Penske to assume regulatory control and responsibility for equipment leased by that carrier, the plaintiffs could pursue vicarious liability for the driver’s negligence. The court also reinstated the negligent-hiring claim against Penske’s affiliated broker based on the Supreme Court’s recent decision in Montgomery v. Caribe Transportation, which held that the FAAAA’s safety exception saves such claims from preemption.
In re Sourcewater, Inc., No. 25-20475 (Smith, Willett, Ramirez, JJ.): Did the bankruptcy court’s prior orders bar Adler’s claim that the note he acquired had priority?
Majority (Smith, J., for unanimous Court): Yes. The Cash Collateral Order barred any untimely adversary proceeding challenging the priority of Energy Debt Holdings’ loan, and the Confirmation Order preserved only challenges consistent with that earlier order. Because Adler filed after the deadline and sought priority over the EDH loan, those orders foreclosed his claim.
Concurrence (Willett, J.): Yes, but the bankruptcy court’s reliance on judicial estoppel was questionable. It is doubtful that the doctrine has any lawful source in traditional equity, inherent judicial power, or common law.
MAPP, L.L.C. v. Floor & Decor Outlets of America, Inc., No. 25-30536 (Southwick, Graves, Wilson, JJ.): Did the district court properly deny Floor & Decor’s motion to compel arbitration?
Majority (Southwick, J., joined by Graves, J.): Yes. The arbitration provision was an unenforceable contract of adhesion under Louisiana law because Floor & Decor alone could elect arbitration and recover fees incurred compelling it, while MAPP lacked comparable rights and occupied an inferior bargaining position. Although the clause was legible and wasn’t hidden, the one-sided terms and bargaining disparity showed that MAPP had little choice but to accept the provision to obtain the construction contract.
Concurrence in the Judgment (Wilson, J.): Yes, but instead because Floor & Decor didn’t follow the agreement’s required dispute-resolution process before seeking arbitration: its project manager never issued a written decision, and the parties never completed confidential negotiation and mediation. Because compliance plainly didn’t occur and Floor & Decor failed to preserve its procedural-arbitrability argument, there is no need to decide the less-settled question whether the clause was adhesionary under Louisiana law.
Orders
United States v. Squire, No. 25-30324 (en banc): Should the en banc court rehear Squire’s challenge to the constitutionality of the federal felon-in-possession statute under the Commerce Clause?
Order (per curiam): En banc rehearing granted.
Dissental (Higginson, J.): No. Section 922(g)(1) is constitutional under settled Fifth Circuit and nationwide precedent. Rehearing an as-applied Second Amendment case to consider a facial Commerce Clause challenge risks unsettling numerous federal statutes.
Sosnava Rodriguez v. Ortega, Nos. 26-50183, 26-50219, 26-50221 (en banc): Should the Court stay the district-court judgments pending rehearing en banc?
Order (per curiam): Expedited stay granted.
Ford v. Mckesson, No. 24-30494 (en banc): Should the en banc court rehear Mckesson’s challenge to the constitutionality under the First Amendment of imposing negligence liability for an unidentified protester’s violence?
Order (per curiam): En banc rehearing denied by 6–10 vote.1
Concurral (Ho, J.): No. Viewpoint neutrality doesn’t bar Ford’s negligence claim because the First Amendment protects protest, not trespass, and the record contains enough evidence for a jury to decide whether Mckesson’s conduct crossed that line.
Dissental (Willett, J., joined in full by Stewart, Higginson, Douglas, and Ramirez, JJ.; and joined in part by Graves, J.): Yes. This case “squarely present[s]” this question: “[M]ay a political speaker be held liable under a negligence theory for an unidentified stranger’s violence without proof that the speaker authorized, directed, ratified, or intentionally incited that violence?” The Supreme Court should grant certiorari and, consistent with precedent, answer no."
Arguments
The Fifth Circuit won’t call advocates back to the classroom until September.
15COA
Finally, let’s check in with the newest school in the appellate district.
Opinions
Vanderwerff v. Texas Department of Insurance, Division of Workers’ Compensation, No. 15-25-00026-CV (Brister, C.J.; Field, Farris, JJ.): Affirming a $12,000 administrative penalty, the Fifteenth Court held that the Division of Workers’ Compensation could sanction a chiropractor for treating and billing workers’-compensation patients while his license was expired. Although the Chiropractic Board alone determines licensure status, the Division must enforce the workers’-compensation system’s licensure requirement and could act once the Board determined that Vanderwerff’s license had expired; paying the renewal fee within one year didn’t retroactively eliminate the lapse. His declaratory claims didn’t waive sovereign immunity and, to the extent they alleged ultra vires conduct, sought relief duplicating the available administrative review.
Rojas v. State, No. 15-25-00100-CV (Brister, C.J.; Field, Farris, JJ.): Reversing a temporary injunction, the Fifteenth Court held that the State failed to present competent evidence supporting a probable right to relief on allegations that a midwife and associated clinics performed illegal abortions and practiced medicine without a license. Absent the parties’ agreement, affidavits can’t establish entitlement to a temporary injunction, so the trial court improperly admitted probable-cause affidavits from a related criminal case. The remaining evidence—including Rojas’s invocation of the Fifth Amendment—didn’t reasonably support the State’s allegations.
In re State of Texas, No. 15-26-00125-CV (Brister, C.J.; Field, Farris, JJ.) (orig. proceeding): Conditionally granting mandamus relief, the Fifteenth Court directed the trial court to comply with its earlier mandate requiring a temporary injunction against all three sections of Austin’s marijuana-enforcement ordinance. The trial court had a ministerial duty to enforce the mandate but enjoined only the ordinance’s arrest-and-citation provisions, leaving its THC-testing restriction in effect. The State didn’t have an adequate appellate remedy because it wasn’t required to pursue a second interlocutory appeal to obtain relief the court had already granted.
State v. City of Dallas, No. 15-25-00122-CV (Brister, C.J.; Field, Farris, JJ.): Affirming summary judgment for the City and the State Fair of Texas, the Fifteenth Court held that Government Code Section 411.209 didn’t prohibit the State Fair’s policy barring handguns from fairgrounds leased from the City. The statute regulates actions by state agencies and political subdivisions, not private entities, and the evidence didn’t show that the City created, directed, endorsed, or ratified the State Fair’s independently adopted policy. Because the City took no prohibited action, governmental immunity barred the claim against it, and the statute supplied no claim against the State Fair.
Arguments
Like its Houston classmates, the Fifteenth Court has no oral arguments on the syllabus for the next few weeks.
Red Light
With the red light on, class is dismissed.
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Judges Stewart, Graves, Higginson, Willett, Douglas, and Ramirez voted in favor of rehearing. Chief Judge Elrod and Judges Jones, Smith, Richman, Southwick, Haynes, Ho, Duncan, Oldham, and Wilson voted against.
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