Hernandez v. Delphi Litigation Strategies, LLC, affirms the denial of a TCPA motion to dismiss on the ground that the statute’s commercial-speech exemption applies.

Delphi provides litigation consulting services, and engaged Hernandez  as a “partner” and senior consultant. Delphi alleged that Hernandez told an attorney at a key East Texas client firm that he could provide the same consulting through his own company, Blaze Consulting, at a cheaper rate, and that he used Delphi’s confidential pricing information to lure the client away.

The Fifth Court found that each of the four factors that define the commercial-speech exception were satisfied here, as “Hernandez was proposing commercial transactions with potential clients in the litigation industry to sell Hernandez’s litigation consulting services.” No. 05-26-00228-CV (Tex. App.—Dallas Nov. 3, 2026) (mem. op.).

The Fifth District will have three new Justices at the start of 2027:

• Hon. Amanda Reichek, a member of 2018’s “Slate of Eight,” returns to the court for another term after a 2-year absence;
• Hon. Monica Purdy, a longtime Dallas civil trial judge; and
• Hon. Andrea Plumlee, who comes to the Court from the Dallas family-court bench.

Every best wish to these new members of the Fifth Court

Allen v. CBA N Dallas, LLC d/b/a Christian Brothers Automotive, arising from a  challenge to allegedly poor-quality car repairs, affirms a take-nothing summary judgment on a DTPA claim but reverses and remands on a breach-of-contract claim.

A car owner accused a mechanic of damaging her diesel vehicle while it was there to have exhaust fluid drained from the fuel tank. Her DTPA claim failed because her evidence did not show that the shop made “any representations about its competence or the quality of its services.”

However, the owner owner raised fact issues about her contract claim, describing an oral agreement to flush and rinse the tank “for the approximate costs of $600,” made after the shop acknowledged her instruction not to start the car. From there, when the shop told her it could not do the repair and she should take the car to a dealer, that raised a fact issue on repudiation, which excused her from tendering performance. And an email from the shop’s insurer was more than a scintilla of evidence that an employee started the car against the agreement.

The court also held that she did not need expert testimony on causation. The evidence showed “a strong, logically traceable connection between [the shop’s] handling of [the] vehicle and the engine damage it was discovered to have soon after it left [the shop’s] custody”. The court distinguished auto-repair cases that required experts because they involved complex repairs or long gaps in time. No. 05-25-00682-CV, Oct. 22, 2026.

In re Miskin, LLC reminds that, while the grant of a bill of review is an interlocutory order that restarts a case, a majority of Texas intermediate courts allow review of such orders by mandamus. No. 05-26-01149-CV (Oct. 16, 2026) (mem. op.).

In Infotek Consulting v. Dunn, a special-appearance appeal, the plaintiff made the creative argument that a boilerplate “all other relief” clause in a pleading was a jurisdictional waiver (specifically, this language: “… “respectfully prays that the Court sustain this Special Appearance, enter a final order dismissing it from the instant suit for lack of personal jurisdiction, and for such further relief to which this Defendant may show itself to be entitled.”

No authority supported this argument; therefore, the Fifth Court did not accept it, noting that the “further relief” request was made solely in connection with the defendant’s special appearance. No. 05-26-00028-CV (Oct. 5, 2026)

UATP Management LLC v. Geter holds that companies named as “protected parties” in a trampoline park’s release agreement could compel arbitration, even though they did not sign the agreement.

A mother signed the release for her minor daughter. The release said she “releases, agrees not to sue, and shall indemnify” the park and several affiliated entities, and a separate provision sent disputes to binding arbitration.

The court of appeals had denied the non-signatories’ bid to arbitrate, reasoning that the arbitration clause itself did not mention them. The supreme court found that the non-signatories were specifically named third-party beneficiaries of the contract, which showed the contracting parties’ intent to benefit them. The arbitration provision also applied to undefined “parties” and did not exclude the protected parties named elsewhere in the agreement. No. 24-0905, (Tex. Oct. 16, 2026.)

S&M Drilling LLC v. Davis Water Well LLC, a default-judgment case about the three Craddock factors, holds that a trial court cannot find conscious indifference based only on competing affidavits without an evidentiary hearing.

On that issue, the defendants swore that they did not recall being served, could not find the papers, and failed to answer only because the papers were lost. Plaintiff’s counsel swore that the defendants knew of the suit and cited conversations with them about it. The Fifth Court reminded that the movant’s facts “must be accepted as true unless the opponent requests and obtains an evidentiary hearing,” and the facts established by the defendants were sufficient if taken as true.

Similarly, the Court held that the defendants set up a meritorious defense, again citing the facts established by the defendants’ affidavits. No. 05-25-00765-CV (Tex. App.—Dallas Sept. 17, 2026).

Inspired by the recent BAFFC annual conference in New Orleans, I pulled together some short articles that I have written recently about appellate advocacy, and offer them to you in this this e-book. I hope you find it useful in your practice, and encourage you to share it with a friend or colleague if you do enjoy it.

CreateAI Holdings, Inc. v. Bot Auto TX Inc. affirmed the denial of a temporary injunction in a TUTSA case involving two autonomous-trucking companies. The Fifteenth Court held, inter alia:

• As to a sensor array, the court found that “CreateAI publicized the exact locations and varieties of its sensors in an investor presentation in 2022,” so “an external sensor array on a self-driving vehicle may be no more secret than side-view mirrors of a traditional vehicle”
• As to a data-labeling “semantic regime,” “the record contains evidence that CreateAI’s semantics regime and data annotation conventions are of no use to Bot Auto” given that Bot Auto’s “transformer neural network… has no need to engage in large-scale manual data annotation and no use for data conventions developed by CreateAI.” (In other words, it was a later-generation AI model.)
• As to safety technology, “[r]edundancy itself is not a trade secret,” and that “the steering requirements of the two companies are not identical,” so “[e]ven if identical requirements were sufficient to prove the misappropriation of trade secrets, they simply describe the standard to which a product is built, not the means by which a product reaches that standard.”

The Court also questioned whether there was evidence of irreparable injury that could not be compensated with a reasonable-royalty award. No. 15-25-00001-CV /(Sept. 15, 2026).

Personal jurisdiction was rejected over an out-of-state freight broker in Online Transport System, Inc. v. Hanks, which focused on the “operative facts” of the plaintiff’s claim.

The Fifth Court held that “of the purposeful availment allegations …, the only act that has any connection to Hanks’s claims is that Model 2 Transport is a Texas-based entity,” but “that fact has nothing to do with the operative facts of Hanks’s claims, which is whether OLTS was negligent in entering into a brokerage contract with Model 2 Transport to transport product to Colorado.” Likewise, the Court held that OLTS’s broader Texas footprint — brokering with “over 1200 Texas motor carriers” and deriving “7% of its overall revenue” from Texas-related loads — “will not be at issue at trial, nor do Hanks’s claims principally concern any of those facts.” No. 05-26-00215-CV (Sept. 14, 2026).

glendonTodd Capital v. Smith holds that a loan provision requiring the borrower to sell the lender a percentage interest in a related limited partnership was an “option or right to purchase” equity under the Texas Finance Code — and therefore, could not be usurious interest. No. 05-25-00897-CV (Sept. 9, 2026). LPHS represented the unsuccessful appellant in the matter.

Below, a cross-post from 600Camp on its 15th birthday!

600Camp celebrates its 15th birthday with this, the 2810th post. Thanks to everyone who has joined this fascinating journey. To celebrate this anniversary properly, I observe three 600Camp traditions:

• Valuable 600Camp Merchandise. Anyone who catches an error in a post goes on the list to receive valuable 600Camp merchandise. Unfortunately I still do not yet have any merchandise, but I assure you that all such commitments will be duly honored at the earliest possible time.
• Update on the M/V OCEAN SHANGHAI. The 2013 case of Farenco Shipping Co. v. Farenco Shipping PTE, Ltd. produced the best mootness argument of all time — a case about the seizure of a marine vessel became moot once the ship had sailed. The M/V OCEAN SHANGHAI, since renamed as SFERA, has avoided the Fifth Circuit’s waters ever since; as of September 21, 2026, it was anchored in the Gulf of Finland not far from Saint Petersburg (right). .
• Creole Cuisine. The Fifth Circuit is blessed to be headquartered in the culturally rich city of New Orleans; to celebrate 600Camp’s birthday properly, you should make some shrimp remoulade using the legendary recipe from Galatoire’s.

Sunoco v. Trinity Industries addressed this novel issue: whether a railcar lease required the lessee to pay for federally mandated railcar modifications, even though the lessee had taken its railcars out of service before the modifications became mandatory. The Fifth Court reversed a $15.4 million judgment against the lessee.

The contract required the lessee to pay for modifications “required” by a change in “car design, specification, or appurtenances” ordered by a governmental authority. The federal “FAST” Act and related regulations mandated upgrades to certain kinds of tank cars, butthe lessee had already taken its cars out of service after oil-price changes made rail transport uneconomical. It continued paying rent but refused to pay for the modifications, contending the mandate did not apply to parked cars.

The Court held that the federal statute’s phrase “used to transport” is dispositive, and means that “modifications are required only if the railcars are actually being used to transport crude oil.” The court found this reading consistent with the safety purpose behind the mandate, reasoning that “[t]here would be no safety reason to upgrade railcars not in service …” No. 05-24-00468-CV (Tex. App.—Dallas Aug. 31, 2026, no pet. h.) (mem. op.), LPHS represented the successful appellant in this matter.

In Sebastian Construction v. Chand, the Fifth Court of Appeals at Dallas reversed and rendered a take-nothing judgment against a general contractor after it had lost a $1 million judgment to neighboring landowners.

Sebastian Construction did work on property near a dam. The neighbors had a pond on the other side of the dam. The neighbors alleged that Sebastian’s work changed the natural support of the area, damaging their pond.

The Court applied Texas’s “doctrine of lateral support”—traditionally, a duty not to remove the support of adjoining land and thereby cause subsidence—and held that it did not apply to water migrating out of a pond, as opposed to water or debris migrating onto a plaintiff’s land. No. 05-25-00090-CV (Tex. App.—Dallas Aug. 25, 2026).

The http://U.S. Court of Appeals for the Fifth Circuit and the Bar Association of the Fifth Federal Circuit both have stylish new websites!

Here is a copy of my PowerPoint from last week’s Advanced Civil Trial course in Austin, where I gave an update on the work of the Texas Supreme Court in its 2025-26 term.

In Qu Food Express LLC v. Yomie Yogurt LLC, the Fifth Court affirmed a judgment based on a commercial lease, despite a lack of signatures, when legally sufficient evidence nevertheless established that a “meeting of the minds” occured.

Citing precedent that signatures, while often evidence of mutual assent, “are not essential” to form a binding contract, the Court concluded that the parties demonstrated their intent to be bound through other conduct. Specifically, both parties’ representatives initialed all 34 pages of the lease in each other’s presence, the landlord’s agent told the tenant the lease “is already effective,” and both sides performed under the lease for months, with the tenant timely paying the agreed-upon rent amount and the landlord depositing those payments.

The defendant testified that the parties had not reached a final agreement, but because the above amounted to more than a scintilla of evidence to support the trial court’s finding, the Court affirmed No. 05-25-00425-CV (Aug. 28, 2026).

In Abel v. Texas Capital Bancshares, Inc., the Fifth Court affirmed a trial court order rejecting a judgment debtor’s attempt to supersede a $7 million-plus judgment with a $44,892 cash deposit, holding her net worth affidavit failed to establish prima facie proof of net worth under Rule 24.2 of the Texas Rules of Appellate Procedure.

The Court found Abel’s affidavit came up short on the necessary detail, noting:

The affidavit attached no supporting documents, and although it identified as assets “cash and cash equivalents,” “accrued receivables,” a “Ford Truck,” a “Homestead,” a “Horse tail, art, etc.” and a “Trailer,” it did not specify what the “cash equivalents” and “accrued receivables” were nor include the year, make and model of the truck or trailer; the quantity and description of the art; or details about the house, such as its size and location. Further, it did not explain what fell within “accrued liabilities.” Without details or supporting documentation, the values appellant assigned to her assets and liabilities could not be verified, and net worth could not be ascertained. 

The opinion contains the full relevant text of the affidavit, as well as the text of another proposed alternative filed during the course of the appeal. No. 05-25-00932-CV (Tex. App.—Dallas Aug. 26, 2026).

Joining the ranks of purely speculative punctuation such as the interrobang, and the fairly common but obscurely named dinkus, is the “demicolon.” Someday, it may find a spot in some brief, somewhere:

In Donarski v. Eckard Land & Acquisition, LLC. 05-25-01304-CV (Tex. App.—Dallas Aug. 18, 2026, mem. op.), the Fifth Court of Appeals at Dallas reversed the trial court’s denial of special appearances filed by seven nonresidents. The claims involved their investments in Eckard through special purpose entities.

The Court’s opinion catalogued each individual’s actual Texas contacts—mainly, attendance at investor conferences Eckard hosted—and found them insufficient to sustain personal jurisdiction over them. For example, “Harbott attended one [conference] in San Antonio from May 4-7, 2023, for networking, relaxation, and education, not for conducting business,” Ryan Raymond “attended a single conference in San Antonio for networking and denied conducting business or forming business relations during it,” and “Hughes never attended any conference hosted by Eckard in Texas.” No. 05-25-01304-CV (Aug. 18, 2026).

Lest you think the TCPA had faded away — in J.I.G., LLC v. Neugebauer, the Fifth Court reversed the trial court’s denial of a TCPA dismissal motion, concluding that the relevant pleading failed “because it never identifies the allegedly defamatory or disparaging statement. The pleading does not identify who made the statement, when it was made, or to whom it was published. Instead, Neugebauer alleges only that J.I.G., directly or through an unnamed agent, made at least one false statement about him. The TCPA requires more.” No. 05-25-01169-CV (Aug. 17, 2026).

In Huffines v. Globe Express Trucking, the Fifteenth Court dismissed as moot the State’s interlocutory appeal from a temporary injunction and jurisdictional ruling—but declined the State’s request to dismiss the underlying suit entirely.

Specifically, a trial court had enjoined a law requiring administration of a “historically underutilized business” program on a “race, ethnicity, and sex neutral basis.” The Comptroller amended its rule, mooting the interlocutory appeal. As to the entire case however, dismissal was not automatic, as the plaintiffs’ pleadings did not affirmatively negate jurisdiction and they can amend on remand to target the Comptroller’s newly adopted final rules. No. 15-26-00091-CV (Tex. App.—15th Dist. Aug. 20, 2026, mem. op.),

TCP Park, a partnership case discussed yesterday, also held that declaratory relief, intended to reinstate a diluted ownership interest, was barred by the one-satisfaction rule – where the plaintiff had already recovered damages for the loss of value of that same interest.  Because each remedy—the declaratory relief and the loss-of-value damages—addressed the single injury of the lost partnership interest, awarding both would constitute an impermissible double recovery. No. 05-24-00473-CV, Aug. 3, 2026,

In TCP Park 10 LP Fund, LP v. Park Ten Commons Partners, LP, the Fifth Court addressed whether a limited partnership is jointly and severally liable for the wrongful acts of its general partner. The Court held that even though a GP serves as the limited partnership’s agent, the partnership’s liability for the GP’s conduct does not rest on a general agency relationship. Rather, under Texas Business Organizations Code § 152.303(a), the partnership is liable only if the GP acted in the ordinary course of the partnership’s business or with the authority of the partnership.

Thus, because the questions whether the GP acted in the ordinary course of the partnership’s business or with its authority were never submitted to the jury, the limited partner’s claim that the partnership was liable for the GP’s breach was waived under Texas Rule of Civil Procedure 279. The Court also distinguished authority standing for the opposite proposition, that a GP is jointly and severally liable with the partnership for partnership debts. N≠o. 05-24-00473-CV, Aug. 3, 2026

TAT Express, Inc. v. BlueGrace, LLC arose after BlueGrace’s eighteen-wheeler caught fire roughly sixty to eighty miles after TAT performed repairs on it. The Fifth Court rendered judgment against BlueGrace’s negligence claim, holding that expert testimony was required to link the fire’s cause to TAT’s repair work and that BlueGrace’s lay evidence could not carry that burden. No. 05-25-00255-CV (Aug. 10, 2026).

Volato, Inc. v. RPM Flying Ventures, Ltd. arose from a failed fractional-ownership deal for a HondaJet HA-420: RPM agreed under a Commitment Letter (which included a broad arbitration clause) to buy a 12.5% interest for $949,000, but when the transaction fell apart, RPM and several affiliated, non-signatory entities sued Volato, and the trial court compelled arbitration only as to the parties who had actually signed the Commitment Letter.

The Dallas Court of Appeals reversed in part, holding: “Because the nonsignatory plaintiffs seek to enforce rights arising from the Commitment Letter, they are bound by its arbitration agreement. The agreement also clearly delegates arbitrability questions to the arbitrator. The trial court was therefore required to compel arbitration and stay litigation of all issues subject to arbitration, leaving the remaining arbitrability questions for the arbitrator to decide.” No. 05-25-01444-CV (Aug. 14, 2026).

Emeanua v. Bu Ike Social Clubholds that a social club could face breach of contract liability when it disciplined members without following the voting procedure required by its constitution and bylaws. The Fifth Court treated the club’s governing documents as a contract between the club and its members, then focused on the bylaw requiring a decision “by simple majority” before ethics-committee recommendations could take effect. Specifically, the Court held that “simple majority” meant “more than fifty percent of those voting,” and the club’s 32 votes in favor out of 66 total votes fell “two votes short of a simple majority.” No. 05-24-00851-CV, Jul. 22, 2026.

In Kinder Morgan Treating LP v. North Park Advantage Walden MRU, LLC, the Dallas Court of Appeals reversed and rendered in part a $5,645,810 negligent-misrepresentation judgment against a natural-gas treater in favor of a pipeline-project investor, holding that the plaintiff’s tort recovery was foreclosed by the economic loss rule.

Drawing on Wal-Mart Stores v. Xerox State & Local Solutions, No. 05-18-01421-CV, 2024 WL 5087116 (Tex. App.—Dallas Dec. 12, 2024, no pet.), the Court reasoned that “where a contract might readily have been used to allocate the risk of a loss,” courts prefer to leave the parties to their contractual remedies rather than add tort duties in tort. Because the parties here had the ability — and, on the record established about their dealings, the opportunity — to allocate that risk by contract, negligent misrepresentation was not an available claim. No. 05-24-01447-CV (July 1, 2026).

Inman v. Loe revived a former LLC member’s suit over his removal from the company he helped found. Specifically, the Fifth Court disagreed with the trial court’s conclusion that the company agreement as unenforceable for lack of consideration, because the plaintiff’s promise to work full-time as a manager and officer was consideration for his membership interest. The alleged failure to perform that work did not mean consideration was absent at formation; instead, “consideration was provided but as the trial court found, not delivered.”

Additionally, as to limitations, certain conduct from 2009 showed exclusion from management and operations, but not divestiture of the plaintiff’s ownership interest, because the company agreement and Texas LLC law required formalities for transfers, withdrawals, or expulsions of membership interests. The plaintiff’s ouster accrued only when the company formally voted on August 23, 2010, to remove him as a member, so his March 2014 suit was timely under the four-year limitations period. No. 05-25-01351-CV, Jul. 23, 2026.

In re Apkudo, Inc. saw the Dallas Court of Appeals conditionally grant mandamus relief, ordering a Dallas trial court to stay a contract suit among Apkudo, FedEx Supply Chain Logistics & Electronics, and T-Mobile USA in deference to an earlier-filed Delaware lawsuit involving the same parties and subject matter. The Court observed:

Here, the two lawsuits concern the same subject matter and involve the same issues. Apkudo’s Delaware lawsuit and FedEx’s Texas lawsuit both seek a determination by the respective trial court as to whether Apkudo has breached the Subcontract and Work Order No. 2 by continuing to provide services to T-Mobile after T-Mobile and FedEx terminated their relationship. Both lawsuits also require the respective trial courts to determine whether Apkudo has violated the nondisclosure provisions of the governing contracts.

The Court also rejected the relevance of the filing date of a related Texas Rule 202 petition, and noted that “dominant jurisdiction” cases were still relevant even though interstate comity was a distinct concept. No. 05-26-00579-CV (July 22, 2026).

In re Jackson holds that attorney immunity protects an in-house corporate attorney from a tortious interference claim brought by a terminated CEO. The former CEO had amended his petition to remove references to Jackson as “general counsel” and recast him as a “business advisor,” but the Fifteenth Court found this recharacterization did not defeat the defense: “[N]o matter how Jackson’s conduct is characterized, for immunity purposes the question is whether rendering advice to a client in these circumstances is ‘the kind of conduct‘ attorneys engage in when discharging their professional duties to a client.” (emphasis added).

The Court clarified that the test for attorney immunity does not ask what actual advice an attorney gave (since that is privileged) but instead examines hwether the challenged conduct is “the kind of conduct” that attorneys undertake while discharging professional duties to a client. Here, when a multi-billion-dollar company considers firing a CEO who may raise a $350 million claim, seeking legal advice is expected, and rendering that advice is precisely the kind of conduct corporate attorneys and general counsel perform.

The Court rejected the argument that allegations of Jackson’s involvement in business operations—such as attending strategy meetings and meeting with employees on technology matters—showed his interference was non-legal, noting that none of those activities related to the actual conduct sued upon: advising on the CEO’s termination. The Court further held that an attorney’s self-interest does not cancel the immunity defense so long as that interest coincides with the client’s interests, because the inquiry “focuses on the function and role the lawyer was performing, not the alleged wrongfulness, or even asserted criminality, of the lawyer’s conduct.”

A dissent argued that the live pleadings—which must be taken as true under Rule 91a—portrayed Jacksonas a business advisor pursuing his own self-interest in obtaining the CEO position for himself. The dissent stressed that attorneys often wear many hats in the corporate world and that not every action by someone with a law license qualifies for immunity; rather, the conduct must be particular to “the office, professional training, skill, and authority of an attorney.” No. 15-25-00235-CV, Jul. 14, 2026. (Of general interest, a 2014 Fifth Circuit case addressed similar issues in the context of privilege.)

In Kinder Morgan Treating LP v. North Park Advantage Walden MRU, LLC, the Fifth Court held that the economic loss rule barred a negligent misrepresentation claim arising from erroneous gas-recovery simulations provided during negotiation of an equipment lease. The lessee sought to recover over $5.6 million in reliance damages after a simulation error caused it to dramatically overestimate the profitability of a gas processing plant.

The Court observered that the parties had used their agreements to allocate the very risk at issue: the lessee had tried during negotiations to make the lessor warrant the simulation results, but the lessor refused, and the lessee chose to proceed anyway under contractual language disclaiming any representation or warranty that the equipment would produce the simulated results. Therefore, held the Court, allowing the tort claim would “disrupt the allocation of risk the parties negotiated and agreed upon.”

It also rejected the argument that the lessor breached an “independent, pre-contractual legal duty,” noting that the factual bases for both the contract and the negligent misrepresentation claims were identical and that the lessee was, in essence, seeking to recover in tort what was expressly excluded by the contract’s limitation of liability provision. No. 05-24-01447-CV (Jul. 1, 2026) (applying, inter alia, the Fifth Court’s 2024 opinion in Wal-Mart v. Xerox that provided a through review of the economic-loss rule).

In Dignity Gold, LLC v. Ilmarin Group, LLC, the Fifth Court reversed the trial court’s denial of a special appearance following default judgments against two out-of-state defendants.

The Court explained that Texas courts may exercise specific jurisdiction only over a defendant whose alleged Texas contacts — not simply the presence of its officer during unrelated communications — give rise to the plaintiff’s claims. Even assuming the plaintiffs’ evidence could be considered and that the officer’s in-Texas communications could be attributed to the defendants, the Court further that communications that “routine transaction-related” communications— project benchmarks, document requests, administrative matters — did not supply the required suit-related contacts to support specific jurisdiction. No. 05-25-00134-CV (June 24, 2026).

City of Dallas v. Disney, an opinion focusing on the law-of-the-case doctrine, offered this practice tip about the new record-assembly rule and the docket sheet:

[T]he Cities in this case filed an appendix in lieu of a clerk’s record under the new Appellate Rule 34.5a, see TEX. R. APP. P. 34.5a, but did not include a copy of the trial court’s docket in the appendix. We therefore do not know whether the trial court entered an order denying the motion for limited stay or whether it was implicitly denied when the trial court entered the order granting the Streaming Providers’ Rule 91a motion to dismiss and the final judgment. For the purposes of this appeal, that is a distinction without a difference, since an implicit denial has the same legal effect as an explicit one. Nevertheless, we include this practice tip for appellate practitioners before this Court of the potential value of the docket sheet.

Unlike Rule 34.5, which sets forth the required contents of the clerk’s record, Rule 34.5a does not require that the party filing an appendix include a docket sheet. Compare TEX. R. APP. P. 34.5a(e)–(f) with TEX. R. APP. P. 34.5(a)(3). Although the trial court’s docket sheet rarely impacts the outcome of an appeal, it is often useful because it provides context to the items that appear in the clerk’s record. From the docket sheet, we can glean the dates of trial court filings, hearings, and orders that were excluded from our record. It is also the docket sheet that often gives us cause to question whether a supplement to the record should be made. See TEX. R. APP. P. 34.5(c) (providing that any party, the trial court, or this court, can request supplementation of the clerk’s record).

No. 05-24-00712-CV (June 22, 2026).

In Your Problem, My Solution, LLC v. Guel Family Builders, Inc., the Dallas Court of Appeals reversed and remanded a summary judgment in a title dispute; in so doing, the court addressed a procedural argument that the panel’s earlier denial of mandamus on a related lis pendens issue had become the law of the case.

The Court explained that under the law-of-the-case doctrine “questions of law decided on appeal to a court of last resort govern the case throughout its subsequent stages,” and that a denial of mandamus “without comment on the merits does not bind an appellate court from considering the matter in a subsequent appeal.” The earlier mandamus opinion had “simply set out the law regarding mandamus relief” and concluded the relator had “failed to demonstrate entitlement to mandamus relief” — not that the underlying lis pendens or title positions were correct. No. 05-24-01467-CV (June 15, 2026).

In Wonderland, Alice was able to resolve a question about hookah use by speaking to the Caterpillar. Unfortunately for the plaintiffs in City of Irving v. The Living Room Irving, the Fifth Court concluded that they could not have an answer to their hookah-related question —  the lounges had pleaded “ultra vires” about a new smoking ordinance against the City of Irving but did not name as a defendant any city officer in an official capacity.

The Court reminded that the Declaratory Judgments Act “does not enlarge a trial court’s jurisdiction” and that even with the ultra vires exception allowing suit against an officer in his or her official capacity, the “governmental entity itself remains immune from suit,” citing City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). Because the lounges’ pleadings did not affirmatively demonstrate jurisdiction, the claims were dismissed. No. 05-25-01240-CV (June 8, 2026).

Yet again, my friend Art Ayala has good insights about supersedeas bonds, in this recent article, “Six Common Misconceptions About Appeal Bonds.”

Regrettably, I did not get a picture from my presentation last week at the University of Texas Appellate Conference (organized by UT Law CLE), but this is pretty close, and here are copies of my PowerPoint and paper from the conference.

In Trojan Tubular Services, LLC v. Legacy Exploration, LLC, the Fifth Court reviewed whether the TCPA applied to several claims about a company’s efforts to resolve a lawsuit, and ruled, inter alia, as follows.

• The TCPA does not apply to claims based on paying money for a judgment, because paying money is not a “communication” as the TCPA defines that term and thus is not an exercise of the right to petition or free speech.
• The TCPA does not apply to statements disparaging a competitor to its investors (e.g., “do not waste your money on Legacy” or “Legacy is about to go bankrupt”), because the movants did not show those statements involved a matter of public concern or a governmental proceeding—the prerequisites for the rights of association and free speech
• The TCPA does apply, however, to the alleged statement that the movants “were going to prevail” in pending federal litigation. The court held that “a prediction of the outcome of a lawsuit, made by litigants in that very lawsuit, relates directly to, concerns, or has to do with that lawsuit,” making it an exercise of the right to petition. (The Court went on to find that the motion was untimely on this claim).

No. 05-25-00538-CV (June 4, 2026),

In CTR Incident Management Specialists, LLC v. Jet Stream Trucking, Inc., the Fifth Court reversed a lost-profits award in favor of a Dallas-area towing and recovery business.

The dispute arose out of a falling-out between the towing company’s owners and a new entrant whose entities, the court found, drew away the established company’s customer relationships.

On the one hand, Appellants argued that “[Plaintiff] did not calculate lost profits but instead provided the jury with a list of assets and expenses and characterized his calculations as a ‘quick draw; or ‘estimates.'” Accordingly, they contended, “there  nothing in the record that substantiates the amount testified to by Saleh or the amount awarded by the jury, which was different than the amount appellees sought.”

On the other hand: “Appellees respond that the evidence showed Kyle continued to operate the business and retained all of the profits for himself instead of buying out his partners’ interest in the business.” Therefore, argued Appellees, “the jury properly found that the new company—CTR 2—was merely doing business as the old company and, thus, appellees were entitled to their share of profits from the new business. Appellees contend they established CTR 2’s profits through appellants’ business records and established Saleh and Ghazi were entitled to seventy-five percent of those profits.” No. 05-24-01047-CV (June 5, 2026).

In Boss Exotics, LLC v. Chappell, the Dallas Court of Appeals reversed a dismissal for want of prosecution following a restricted appeal, holding:

• There was no failure to appear at a hearing or trial setting under Rule Tex. R. Civ. P. 165a(1);
• The case had not exceeded any applicable time standards under Rule 165a(2); and
• The trial court “did not provide an opportunity to be heard on the dismissal” before signing it.

The panel also held that any reliance on the court’s inherent authority to dismiss could not save the order, because the trial court “provided no notice of an intent to dismiss under its inherent authority” either. No. 05-24-00428-CV (June 1, 2026).

In State of Texas v. City of McAllen, the Texas Supreme Court dismissed a lawsuit in which a group of cities challenged state statutes that reduced the fees cities can charge telecommunications companies for using public rights of way. The cities claimed that charging below-market rates amounted to an unconstitutional gift to the telecom companies under the Texas Constitution’s Gift Clauses. The Court vacated the lower courts’ judgments “without addressing the Gift Clauses at all” because the case “suffers from a basic defect that has deprived the courts of jurisdiction from the beginning: The cities sued the wrong defendant.”

The Court held that naming the “State of Texas” as defendant was insufficient. A plaintiff challenging a statute’s constitutionality must “identify and name the officer or agency with authority to enforce the challenged law” so a court can direct its judgment at the entity whose actions caused the injury. Naming the State is “not a cheat code for bypassing the requirement, incumbent on any plaintiff in any context, to seek a judgment against the party whose actions are the cause of the alleged injury.” The Court noted that no state officer or agency had taken or threatened any adverse action against the cities.

The Court further explained that the real dispute was between the cities and the telecom companies over how much the companies must pay to use public property. But because the cities did not sue the telecom companies, any judgment would not bind them. The companies “would be well within their rights to ignore a sweeping declaration against the ‘State of Texas’ in a lawsuit to which they were not parties and to insist on a judgment binding on them before they assent to the higher rates sought by the cities.” Therefore, because the judgment sought “would not redress the cities’ injury or resolve the real-world dispute animating this litigation,” the case was beyond the courts’ jurisdiction. No. 24-1060 (Tex. Jun. 5, 2026).

In Sana Healthcare Carrollton, LLC v. Baylor Medical Center at Carrollton, the Fifth Court held that a broad mutual release in the parties’ 2021 “Compromise Settlement Agreement” removed the buyer’s obligation, under an earlier Operations Transfer Agreement, to remit approximately $4.5 million in Medicare and Medicaid reimbursements to the sellers.

The Fifth Court noted that the Settlement Agreement’s “Termination of Prior Contractual Relations” section expressly terminated the OTA “except for the obligations provided for in this Agreement,” and the reimbursements were not among them. The agreement also contained a broad reciprocal release and a merger clause stating that the settlement “supersedes any and all other prior agreements of the Parties.” And, the Medicare reimbursements appeared nowhere in the settlement.

Citing Southwestern Electric Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467 (Tex. 1998), the court also rejected the sellers’ fallback theory of unjust enrichment, reasoning that express contract terms terminating a payment obligation foreclose an equitable claim bsaed on the same payments. No. 05-25-00077-CV (May 27, 2026).

The Texas Supreme Court held in Bryant Law Firm v. Walker that a party cannot avoid an accord and satisfaction by crossing out release language on a check and then depositing it anyway.

An attorney refunded fees to a former client, with a check, on which the “memo” line said that cashing it “represents a full & final settlement and release of all claims.” The client crossed out that language before depositing the check and later sued the attorney for additional damages.

The Court found that the elements of the statutory accord and satisfaction defense under Texas Business and Commerce Code Section 3.311 were conclusively established: the attorney tendered the check in good faith as full satisfaction, a bona fide dispute existed as to the amount owed, the check contained a conspicuous statement of release, and the client obtained payment with actual knowledge of the condition.

Striking through the notation on a check “does not relieve [the payee] of the legal consequence of negotiating it and depositing it into his account.” Relying on more than a century of precedent, the Court reaffirmed that mutual assent is satisfied when a party accepts a negotiable instrument with knowledge it is offered as full payment and then proceeds to negotiate it. No. 25-0131 (Tex. May 8, 2026).

In Lopez-Garcia v. Rodriguez deLemos, the Fifth Court affirmed the denial of a writ of garnishment sought by a receiver who had domesticated a Maryland judgment in Texas and sought to seize the debtor’s distributions from a Maryland spendthrift trust.

Maryland trust law applied, which seems to follow generally accepted principles in this area. The appellant argued that the trustee did not have purely discretionary authority, but the Court pointed to a section of the relevant Maryland statutes which said that a “discretionary distribution provision” includes any provision in a trust instrument that contains a spendthrift clause. Because the trust itself barred any distribution from being payable to a creditor “by any kind of legal or equitable process,” the distributions were exempt from garnishment. No. 05-25-00092-CV (May 12, 2026).

In Lone Star Concept Solutions d/b/a True Colors Painting v. Texas Green Realty, LLC, the Fifth Court affirmed a directed verdict for a property owner on a subcontractor’s breach-of-contract, promissory-estoppel, and quantum-meruit claims, all of which involved an alleged oral agreement that the owner would pay the subcontractor if the general contractor failed to pay within five days of the certificate of occupancy:

• Contract. The oral agreement was “subject to the statute of frauds” as a suretyship — a promise to answer for the debt of another — and the Court rejected the subcontractor’s reference to section 26.01(b)(6) of the statute (the one-year performance provision) reasoning that whether the oral contract could have been performed within that timeframe was not relevant once the suretyship subsection applied.
• Promissory estoppel. This doctrine carves out a statute of frauds exception only where the plaintiff shows a promise to sign a written agreement that would itself satisfy the statute. The record contained no such promise.
• Quantum meruit. The subcontractor already had an express contract with the general contractor covering the same services and materials.

05-24-01286-CV (May 15, 2026)

Here is my paper from my “Fifth and Fifth” presentation today at the DBA Appellate Section meeting at the Arts District Mansion.

Come to the Arts District Mansion this coming Thursday, the 21st, for my yearly “Fifth and Fifth” case-law update!

In Badiee v. Mahboubi, the Fifth Court affirmed a take-nothing judgment for the defendants in a suit for unpaid accounting fees, holding that the trial court did not abuse its discretion in excluding “updated invoices” the plaintiff offered under the business-records exception of Texas Rule of Evidence 803(6).

All the invoices were dated December 31, 2022 — after the parties’ fee dispute had arisen — and many described work performed in earlier years, some more than a decade before trial. The plaintiff testified that the invoices were created in QuickBooks as a regular practice when partial payment was received and that the underlying invoices were still available. On that record, the Court concluded that the records “were not made at or near the time of a regularly conducted business activity” within Rule 803(6)’s requirement. (The Court also found no harm, because the jury had already found a flat-fee agreement covering all of the plaintiff’s services, so any hourly-billing detail in the excluded invoices would have been cumulative on the central liability question.) No. 05-25-00334-CV (May 13, 2026)

In African Contract Solutions, Inc. v. Bradley Arant Boult Cummings, LLP, the Fifth Court applied Texas’s anti-fracturing rule to affirm the Rule 91a dismissal of breach-of-fiduciary-duty and fraud claims against a law firm and its individual lawyer. The court held that the gravamen of the suit was legal malpractice and that the claims were therefore subject to — and barred by — the two-year statute of limitations applicable to professional-negligence claims:

[T[he crux of appellants’ complaint is that appellees’ representation of GSGS was deficient because of the conflict of interest in advising Sturm or placing Sturm’s interests over the interests of GSGS, i.e. appellees failed to advise GSGS of Sturm’s adverse actions, which negatively affected GSGS. The allegations involve the question of whether appellees failed to exercise the degree of care, skill, or diligence in performing their duty to inform their client (the company) under professional conduct rules about issues concerning the company’s allegedly rogue president, who hired appellees to represent the company.

. The opinion follows the Texas Supreme Court’s recent guidance in Pitts v. Rivas, 709 S.W.3d 517 (Tex. 2025), and reaffirms that the anti-fracturing rule blocks plaintiffs from recharacterizing a malpractice claim “in order to obtain a litigation benefit like a longer statute of limitations.” No. 05-24-01244-CV (May 11, 2026).

In MV Transp. v. GDS Transp., the Texas Supreme Court (reversing the Fifth Court on the merits) addressed a threshold evidentiary question–whether the apparently inadvertent omission of a contract central to a Rule 91a dismissal motion from the appellate record precluded appellate review.

The contract at issue—a master agreement between a public-transit authority and a private operator—formed the basis of the plaintiff’s claims and was purportedly attached to the live pleading as an exhibit, yet it never made it into the record on appeal. The Court acknowledged that “[p]arties should, of course, ensure that materials they themselves recognize as essential to their dispute are included in the record so that appellate courts can more readily perform their function of reviewing trial-court judgments”. Nevertheless, the Court held that the omission did not bar review, for two reasons.

The Court offered two reasons. First, when a petition invokes a document as a basis for relief, the document is not mere “evidence” but may be regarded as part of the petition itself under Texas Rule of Civil Procedure 59, and nothing in Rule 91a suggests that dismissal would be improper simply because such a document is missing from the record.

Second, the parties fully agreed about the master agreement’s material terms; they disputed only the legal consequences of its text, “and that kind of dispute lies in Rule 91a’s heartland”. Because the plaintiff’s own allegations amply described and quoted the agreement’s relevant provisions, the Court concluded that it could test the legal viability of the claims without the full document in the record. No. 24-0924, May 8, 2026.

Reversing the Fifth Court, in Ortiz v. Nelapatla, the Texas Supreme Court analyzed a medical-expense affidavit that was only partially challenged by a counteraffidavit.

The supreme court held that “the unchallenged portions of the medical costs identified in the initial affidavit remain competent evidence and may be submitted to the factfinder.” The controverted portions must be redacted or otherwise set aside, but the uncontroverted portions — and, where appropriate, the counteraffidavit itself — remain admissible to prove that the unchallenged amounts were reasonable and necessary. No. 23-0953, May 1, 2026.

In Valk v. Copper Creek Distributors, the Texas Supreme Court reversed the Fifth Court, citing the rule that a reviewing court must address issues that would require rendition of judgment before turning to issues that would result only in a remand for a new trial.

In this case, the Fifth Court identified an erroneous spoliation instruction and remanded for a new trial without reaching the appellants’ other points on appeal — including legal sufficiency challenges that, if sustained, would have ended the case outright. The supreme court held that this shortcut was reversible errorr, acknowledging a narrow exception permitting remand in the interest of justice — most often when governing law changes during the life of a case — but found that no such circumstances existed here.

The supreme court also held that the Fifth Court’s harmless-error analysis was inadequate because it did not assess “the entire record of the case as a whole.” The court of appeals reasoned that the spoliation instruction may have caused the prevailing party to present less damages evidence than otherwise, but the supreme court noted that  the prevailing party repeatedly told the jury that no other damages evidence was available and had made strategic litigation choices — such as declining to call a retained damages expert — that were unrelated to the instruction. Because a proper harm analysis must weigh factors both supporting and undermining a finding of harm, addressing only one appellate issue in isolation does not provide the  holistic view of the case that a thorough harm analysis demands. No. 24-0516; Apr. 17, 2026

(This is a cross-post from 600Camp.) While the appellant was unsuccessful in Pete v. Equifax, Inc., he seems to have set a record for an imaginative demand: “Appellant David Pete, proceeding pro se, sued Appellees Equifax and JND Legal for $200,000,000,000 under a variety of legal theories. The district court denied Pete’s in forma pauperis motion and ordered Pete to pay the filing fee because he falsely claimed the United States Attorney General owed him more than $100 quintillion.(emphasis added).

In Collingwood USA, Inc. v. Morgan Stanley & Co., the Fifth Court affirmed the dismissal of a negligent-supervision claim under Rule 91a, concluding that this cause of action requires physical injury to state a cognizable claim. Because the plaintiff alleged only economic damages arising from a contractual relationship with the employee, the economic loss rule barred recovery.

A concurrence/dissent, frustrated with the developing standards about use of Rule91a, expressed hope that  “the lack of clear guidance regarding the use of rule 91a instead of special exceptions and summary judgment will be addressed by the legislature or the Texas Supreme Court.” No. 05-24-00629-CV, Apr. 10, 2026.

To authorize substituted service under Tex. R. Civ. P. 106(b), the plaintiff must establish a location where the defendant can “probably be found.” Applying that rule in a restricted appeal, Copa Room LLC v. MM Mercer Boardwalk LLC reminds that when a process server’s affidavit describes failed attempts to locate the defendant, that evidence may well show only where the defendant can probably not be found:

Hale’s declaration does not state or suggest any location where the defendant “[could] probably be found.” Instead, his declaration listed four unsuccessful service attempts suggesting that the addresses where service was attempted were not, in fact, places where Hulme could probably be found. Mercer’s unsworn motion states that service was attempted at “four business addresses associated with Defendant Hulme,” citing Hale’s declaration in support. However, even assuming “business addresses associated with” a defendant is equivalent to a place the defendant “can probably be found,” Hale’s declaration does not state that any of the addresses are currently associated with Hulme. Instead, the declaration indicates that each of the locations were vacant or had businesses unassociated with Hulme.

No. 05-24-01428-CV (April 3, 2026) (citations omitted).

The appellants in Pourmohammadagha v. Poury challenged the denial of their motions to dismiss under the TCPA, but had trouble with two principles about the scope of that statute relative to when a lawsuit is filed.

1. Before. “[A] communication made before a lawsuit is filed does not trigger TCPA protection as an exercise of the right to petition through statements made in or pertaining to a judicial proceeding.”
2. After. “A communication made after a lawsuit is filed also does not establish the applicability of the TCPA’s protection unless the movant demonstrates that the legal action is ‘based on or is in response to’ the other party’s exercise of the right to petition.” And in that context, “when the pleadings, evidence, and parties’ arguments are based on a mix of protected and unprotected activity, and they do not distinguish between the two, a defendant-movant’s motion to dismiss under the TCPA should be denied.”

No. 05-25-00143-CV (April 1, 2026).

Born v. Fielder involved a premises-liability claim, brought by a prospective home buyer, who fell down three stone steps while exiting the backyard through a gate during a property viewing. The buyer argued that the steps were concealed and created an unreasonable risk, but the trial court and Fifth Court disagreed, applying the rule that a premises owner “has no obligation to warn … or make the premises safe, as a matter of law” when a hazard is open and obvious.

The Court reviewed photographs submitted by the buyer (which he cited as evidence that the stairs were hidden), and concluded that they depicted “an ordinary gate in an ordinary wooden privacy fence” with steps in good condition leading down to the driveway. Other, undisputed testimony established that no other injuries had occurred on the stairs or anywhere else on the property. No. 05-25-00239-CV (Mar. 24, 2026).

SL Nabors Commercial/Residential Roofing, Ltd. v. Allen, discussed yesterday, also involved a minor but technically important issue about the treatement of costs in a judgment: “Although the trial court determines whether a party is the ‘successful’ party and entitled to costs, the taxing or tabulation of costs is determined by the clerk, not the court.”  Accordingly, a judgment should tax costs against a side, but not award a specific amount of costs, and the Fifth Court deleted a sentence from the judgment under review that did award a specific cost amount. No. 05-24-00854-CV, Mar. 26, 2026.

In SL Nabors Commercial/Residential Roofing, Ltd. v. Allen, the Fifth Court rejected sufficiency challenges to a jury’s non-economic damage awards (distinct awards totalling $665,000 for past and future physical pain, mental anguish, and physical impairment).

The Defendants argued that under Gregory v. Chohan, a jury may not “simply pick a number and put it in a blank” when awarding non-economic damages,. The Court acknowledged recent appellate opinions that upheld non-economic awards where plaintiff’s counsel had offered the jury a “simple calculation,” such as a specific dollar amount per waking hour or per day — but held:

“[W]e do not interpret Gregory as changing the law to require such evidence to uphold non-economic damage awards. Rather, these cases illustrate one method by which a plaintiff may assist the jury in calculating damages. When, as here, the reasons given for the award are rational and grounded in the evidence and do not partake of prohibited motives, we defer to the factfinder’s verdict.”

No. 05-24-00854-CV, Mar. 26, 2026.

The unfortunate case of Landry v. Landry came to an end before the Texas Supreme Court, after two reviews by the Fifth Court, with the supreme court holding as follows (citations omitted):

        The court of appeals erred when it “substitute[d] its judgment for that of the” trial court. It did not carry out our prior instruction to “perform a new sufficiency analysis” including the four months of account statements that were before the trial court as fact-finder. It instead treated those statements it believed were missing as dispositive, even though they were in fact before the trial court, and even though Rice testified that they would not have altered his expert conclusions. This exemplifies the type of appellate second-guessing our precedents forbid. 
        We now choose to make our Court “the final stop for this litigation.” Reviewing the above evidence in the light most favorable to the trial court’s decision, as we must, we conclude that the trial court could have reasonably formed a firm belief or conviction that the two investment accounts at issue are properly characterized as separate property. Accordingly, there is no basis to disturb its judgment.

No. 24-0910 (Tex. March 20, 2026).

Rehab Squad General Contractors v. Phamily Captai Partners addresses preservation of charge error for a party with the burden of proof.

The Fifth Court held that under Texas Rule of Civil Procedure 278, a party seeking reversal based on an omitted jury question must request and tender that question in writing and in substantially correct form. Mere objection to the omission is insufficient; objection preserves error only when the omitted question is one relied upon by the opposing party.

The court rejected arguments that compliance was impossible or impracticable under the circumstances. Even though the trial court made mid-trial comments suggesting the question would likely be submitted, those statements only “highlighted the necessity” for counsel to be prepared to timely submit a proper question. The trial court explicitly reminded counsel of the need to submit a proposed question and even referenced an available pattern jury charge, yet counsel still did not tender one.

in sum: “Request and tender of a question complying with Rule 278 by the party with the burden of proof on the question is required to preserve the right to complain of a trial court’s failure to submit a question; whereas, an objection is required to preserve a complaint as to a defective question.” No. 05-25-00091-CV, Mar. 17, 2026. Thanks to Ben Taylor for drawing this case to my attention!

Equinor Energy LP v. Lindale Pipeline, LLC provides a textbook illustration of the Texas Supreme Court’s commitment to plain meaning in contract interpretation.The question was whether an energy company breached an exclusivity clause by buying water from third-party suppliers for its fracking operations.

The dispute centered on the phrase “on the Pipeline” in the contract’s exclusivity provision, which made Lindale the “sole and exclusive water provider and pumper on the Pipeline.” The Court held that this phrase refers only to water conveyed through the defined Pipeline infrastructure—not to water supplied to oil wells merely because they are attached to or near the Pipeline.

Finding that the contract’s text was unambiguous, the Court determined as a matter of law that Equinor’s wells fell outside the scope of the exclusivity clause, meaning Equinor was free to purchase water from other suppliers without breaching the agreement. Lindale argued that it would not have agreed to the contract—which required a $1.2 million capital investment and below-market pricing—if it didn’t have exclusive rights to supply water to the wells themselves. The Court was unmoved, emphasizing that it has “no business rescuing parties from contracts that turned out to be bad deals in the name of utilitarianism or equity.” No. 24-0425; Mar. 13, 2026.

In Sanchez v. La Hacienda LLC, the Fifth Court reaffirmed the Texas “natural accumulation rule,” holding that a premises owner has no duty to protect invitees from naturally occurring ice, regardless of whether the owner had advance knowledge of an incoming winter storm.

The appellant argued that the rule should not apply when a landlord knows a dangerous ice condition is “actively forming and worsening” during a prolonged weather event, rather than appearing unexpectedly overnight. The Court rejected this distinction, finding that “nothing in [the supreme court’s leading case] suggests the duration or severity of the storm was legally significant.” Instead, the Court emphasized that ice “results from precipitation beyond a premises owner’s control” and that invitees “are at least as aware as landowners of the existence of [ice] that has accumulated naturally outdoors and will often be in a better position to take immediate precautions against injury.”

No. 05-25-00572-CV, Mar. 10, 2026.

In Crutcher v. City of Fort Worth, the Fifth Court addressd the enforcement of a settlement agreement. As to the issue of consent, the Court held the question is “whether the trial judge possesses information clearly sufficient to put her on notice that a party’s consent is lacking.” Here, the plaintiff filed a response claiming that the settlement failed, the parties never agreed on all material terms, and fraud tainted the agreement. This was enough to signal lack of consent, and the trial court abused its discretion by enforcing the settlement.

The Court also rejected the argument that the plaintiff was barred from appealing because she accepted funds from the court’s registry (the “acceptance of benefit” doctrine). The court considered three factors: whether the plaintiff intended to acquiesce in the judgment, whether the funds were dissipated beyond recovery, and whether the opposing party would be unfairly prejudiced. The record did not show that her acceptance was voluntary—she may have felt pressured to accept funds once opposing counsel moved for a share of them. The appellee also failed to show the funds were irretrievably gone, and any prejudice was lessened because the appellee “shoulders some blame for the situation because it obtained an erroneous judgment based on a mere motion to enforce settlement agreement in contravention of settled precedent.” No. 05-24-01005-CV Mar. 4, 2026

In The Fellowship of the Ring, Gandalf pored through volumes of arcane lore to confirm that Bilbo’s ring was the One Ring of legend. In that spirit, In re Hutchings pores through arcane Texas procedure to remind: “Reducing a decision to final judgment has three phases: (1) rendition, (2) signing, and (3) entry.” Because “entry” is a matter for the clerk, mandamus can only issue for a claimed failure to enter an instrument if the court of appeals’ jurisdiction in another matter is implicated. No. 05-26-00180-CV (March 6, 2026).

For more such arcana – see generally David Coale & Ben Taylor, “Judgment Rendition in Texas,” 75 Baylor L. Rev. 354 (2023); but see Baker v. Bizzle, 687 S.W.3d 285 (Tex. 2024) (Young, J., concurring) (“Our system’s tedious distinction among “rendering” judgments, “signing” them, and “entering” them was necessary in early Texas, when judges would travel by horseback to attend court in far-flung locations. The confusion sown by these distinctions today, however, is needless and intolerable.”).

12 of the 13 district judges in Dallas County have joined this order that implements recent changes to the TRCP about summary-judgment practice:

The Chief Justice’s recent concurrence in the denial of rehearing in Umphress v. Steel (a certified question from the Fifth Circuit about judicial conduct) emphasized the elegance of the word “no”:

There have been two recent opinions about generative AI that you should know about

1. The Southern District of New York recently held that a client’s queries of ChatGPT about a lawsuit WERE NOT PRIVILEGED. My law partner Chris Schwegmann has an excellent analysis of that ruling and its practical implications in this recent Texas Lawbook article. I highly recommend it, Chris is way ahead of the curve in thinking about “what next?” after this important ruling.
2. The Fifth Circuit has had it with the scourge of hallucinated citations (iillustrated, fittingly, by generative AI to the right), and recently sanctioned a lawyer $2,500 for filing a brief with 21 shady citations (and evasive followup when asked about them). The case is Fletcher v. Experian and here is my recent Texas Lawbook article about it, and some practical lessons that it teaches (namely: (a) “don’t eat soup with a fork,” using general-purpose AI products for the wrong purposes; (b) don’t ignore “red flags” about citations and quotes that are too good to be true; and (c) if you make a mistake, for goodness sakes just apologize and move on, rather than trying to stall an obviously upset judge or judges.)

My friend Art Ayala recently visited the Texas Appellate Law Podcast to discuss the complexities of securing supersedeas bonds when a client faces an adverse verdict. Key topics include:

• Timing: Why counsel should consider advising clients to initiate the bonding conversation even before a judgment is entered.
• Process: How process typically flows from the initial call with a client to bond issuance.
• Collateral Options: Pros and cons of various collateral options.

You can listen to the full conversation here: Supersedeas Bonds in the Real World.

In Burnett v. Aguilar Lozano, the Fifth Court of Appeals at Dallas addressed whether various evidentiary objections to summary judgment evidence are defects of form or substance-a distinction that matters because “deficiencies in form cannot be considered when there was no objection in the trial court,” while “substantive deficiencies pertain to the sufficiency of the evidence and can therefore be challenged and considered for the first time on appeal.”

These are objections to form:

• Hearsay within an affidavit
• Lack of authentication of a document
• Absence of personal knowledge
• Testimony of an interested witness

These are substantive defects:

• Affidavits consisting of nothing more than legal or factual conclusions (i.e., lacking underlying facts to support their conclusions)
• Statements of subjective belief unsupported by other evidence

While parts of the nonmovant’s affidavit were conclusory and thus substantively deficient, the unauthenticated accident report was properly before the court due to the absence of objection, and raised a genuine fact issue on breach of duty. No. 05-24-01503-CV (Tex. App.-Dallas Feb. 12, 2026).

In The Pink Panther Strikes Again, Inspector Clouseau famously asks: “Does your dog bite?” So too, the Fifth Court of Appeals, in Latcher v. Edwards, which rejected a negligence claim against a dog owner

Specifically, the Court held that the evidence of foreseeability was legally insufficient where the dog had never escaped from its enclosed backyard before, the owner did not know the side gate had been opened, and the dog had no history of startling, jumping on, or injuring anyone. Rejecting the plaintiff’s argument that the dog had been “roaming the neighborhood for a week” before the incident, the court found the evidence only showed the dog was at a shelter or with a shelter volunteer—not loose on the streets—during the week it took the owner to retrieve him. No. 05-24-01259-CV (Feb. 11, 2026)

In a fraudulent-lien case, the Fifth Court distinguished between different types of intent:

    EarnhartBuilt also makes a brief argument that the nearly three-month delay in removing the lien from the Property after Preferred received the October 13, 2022 email created a genuine issue of material fact as to whether Preferred had knowledge that the lien was fraudulent when filed.

    EarnhartBuilt relies heavily on authority, emphasizing that “intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the
credibility of the witnesses and the weight to be given to their testimony.” Although intent may be inferred from a party’s subsequent acts, any inferences concerning Preferred’s intent from its three-month delay in releasing the lien, at most, relate to element 3 (an intent to cause financial injury) and not to element 1 (what Preferred knew at the time it filed the lien).

Earnhardbuilt LLC v. Preferred Materials, LLC, No. 05-24-00804-CV, Feb. 5, 2026 (citations omitted).

I recently published a short comment on the new Texas Rule of Appellate Procedure requiring a substantive introduction to petitions for review, in which I question the value of introductions in a time when generative AI can review and summarize the most complex of briefs in a few seconds.

The Fifth Court granted mandamus relief in In re Pillar Income Asset Management, holding that a new-trial order based on “incurable” improper argument was an abuse of discretion because the challenged remarks—though often improper—were not so extreme or inflammatory that an instruction could not cure any harm.

On this record, and under the demanding substantive standard, the Court concluded that personal barbs at opposing counsel, aggressive treatment of an expert, references outside the record, statements of personal opinion, and brief appeals to local or religious identity were improper but curable, and therefore could not support a new trial without timely objections and requested curative instructions.

Distinguishing the Fifth Circuit’s recent Clapper decision that reversed because of improper argument, the Court underscored that Texas requires proof that the challenged rhetoric was “so extreme that a juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” The Court summarized: “Incurable argument is rare.” 05-25-00205-CV; Jan. 14, 2026.

A homeowners’ association, sued for over-enforcement of parking rules, argued that the plaintiffs lacked standing because they were tenants and did not own property in the relevant association area. The Fifth Court agreed:

[W]e conclude the Declaration [of the HOA] contemplates affecting the rights, status, or other legal relations of occupants other than property owners. Moreover, the resident appellees’ petitions, original and amended, assert that the Lutzes were charged legal fees by the company that owns the house they lease and that the same company warned the Lutzes that the lease would be voided for future parking violations. Therefore, we conclude the Lutzes asserted and provided evidence that their rights, status, and other legal relations are affected by the Declaration such that they may seek a declaration of their rights, status, and other legal relations under the Declaration.

Shores at Lake Ray Hubbard Owners Association v. Lutz, No. 05-24-00717-CV (Jan. 21, 2026).

The Washington Post offers this lighthearted but substantive quiz to help you identify your perfect font. Give it a try!

In re Cedar Hill Hotel LLC clarifies the applicability of Section 15.0642 of the Texas Civil Practice and Remedies Code, which addresses mandamus petitions to enforce mandatory-venue provisions.

The Court emphasized that Section 15.0642’s deadlines are keyed to “the date the trial starts” or “notice of the trial setting,” but once a transfer order issues, any prior trial setting in the transferring court becomes a nullity and no trial will “start” there. Therefore: “Section 15.0642 of the Texas Civil Practice and Remedies Code does not apply when a party seeks a writ of mandamus to compel a respondent judge to vacate an order granting a motion to transfer venue and transferring an entire action to another county.”

In this action, because the relator sought mandamus after the 30-day plenary period, the proceeding was moot and the appellate court lacked jurisdiction. No. 05-24-01478-CV; Dec. 23, 2025

A recent dispute about various statistical-reporting requirements for prosecutors led to a lively summary of the law in Texas about appellate stays.

1. Fifteenth Court. After an appeal by Texas stayed the trial court’s temporary injunction, the Fifteenth Court granted temporary relief, reinstating the trial court’s injunction for the named parties only, and thus staying enforcement of the reporting rules as to those prosecutors during the appeal. Relying on Tex. R. App. P. 29.3, the court said that it was not deciding the merits on limited briefing but found greater risk of immediate, irreparable harm without a short, party-limited stay. A dissent argued that the majority granted injunctive relief without the required preliminary merits assessment or a likelihood-of-success finding.
2. Supreme Court. In December 2025, the supreme court conditionally granted mandamus relief, concluding that the 15th Court limited the State’s legislatively protected supersedeas without undertaking the preliminary merits assessment required by Rule 29.3, and required a further opinion from that court about the matter by early January. A concurrence elaborated further on several points.
3. Fifteenth Court, Redux. Shortly thereafter, the Fifteenth Court affirmed the temporary injunction for the named prosecutors but narrowed it to exclude non-parties. The court held appellees showed a probable right to relief because the Government Code does not grant the Attorney General authority to promulgate the reporting rules, and such authority cannot be implied absent an express grant. The court also upheld findings about injury, including reporting burdens requiring thousands of staff hours and diversion from prosecutions, and compelled disclosure of privileged and confidential. Notably, the Court deemed the injunction overbroad as to non-parties: temporary relief preserves the parties’ status quo, not statewide interests absent proof of irreparable injury to non-parties. A 15th concurrence again provided further explanation.

Steinhagen v. MC Trilogy Texas LLC makes two key points about the Texas Citizens Participation Act: first,  that commentary alleging municipal corruption in publicly accessible YouTube broadcasts addresses matters of public concern and thus triggers the TCPA framework; second, that the discovery rule does not extend limitations for defamation or business disparagement arising from such public posts.

On the limitations issue, the Court emphasized that reputational injuries from mass‑media publications are not “inherently undiscoverable,” analogizing YouTube dissemination to newspapers or television for accrual purposes.

As for another stream, the Court held the plaintiff failed to make a prima facie showing because the statement that a “public record” had “disappeared” did not specifically refer to the plaintiff, and the remainder—predicting that speaking to authorities would put one’s “life … in jeopardy”—was a nonactionable opinion about future events, not a verifiable fact. No. 05-24-00325-CV; Dec. 29, 2025. Notably, this is a fairly uncommon “opinion” from the Fifth Court, rather than a “memorandum opinion.”

The Fifth Court reversed a judgment about an alleged violation of a restrictive covenant by a “tiny house” when:

The Morrisseys’ original petition was their live pleading at the time the trial court granted their motion for summary judgment. Despite the recitations in the trial court’s judgment, the Morrisseys’ original petition failed to allege the Czegledis violated a restrictive covenant concerning square footage. Finally, the Czegledis timely argued that it would be unjust to grant summary judgment based on an unpled allegation; thus, the parties did not try the Morrisseys’ allegation concerning minimum square footage by consent. Therefore, our de novo review reveals the trial court’s summary judgment is void because it is not supported by the Morrisseys’ live pleading.

Czegledi v. Morrissey, No. 05-24-00739-CV (Dec. 15, 2025) (citations omitted).

Font selection has global consequences, as the State Department returns to Calibri from Times New Roman (imho, the State Department should jettison both fonts and use a tasteful modern serif font, such as Equity or Book Antigua).

The Fifth Court reversed the grant of a Rule 91a motion to dismiss in Skibell v. Fobare, reminding: “When considering pleading sufficiency, the Supreme Court of Texas has repeatedly concluded that a pleading provided fair notice of a claim despite it not including the specific name for that claim,” and citing these two paragraphs from the plaintiffs’ 10-paragraph petition:

No. 05-24-00723 (Dec.8, 2025) (mem. op.).

The Texas Supreme Court recently reminded that, in addition to the 3-factor Craddock test for when a new trial is required after a default judgment, the “ordinary” motion for new trial is also available as an option:

“Even if a defendant does not satisfy the Craddock test, a trial court has broad discretion to determine that another ground identified in the defendant’s motion constitutes ‘good cause’ to order a new trial following a default judgment. See TEX. R. CIV. P. 320. This is so because such judgments are disfavored and “differ from every other kind in a fundamental way.” In re Lakeside Resort JV, LLC, 689 S.W.3d 916, 920 (Tex. 2024).”

Tabakman v. Tabakman, No. 24-0919 (Tex. Dec. 5, 2025).

On the criminal-law side of the docket, a baffling situation about the number of empaneled jurors led to reversal of a conviction in Leal v. State because “The record matters”:

At oral argument, the absurdity of this scenario was discussed with both counsel for the state and counsel for the appellant. It defies logic that neither the trial judge, nor the bailiff, nor the court reporter, nor either party noticed throughout the entire trial that the jury box was missing a twelfth juror. Yet, the record demonstrates exactly that. A reasonable assumption is that there must have been twelve jurors. But the State attempted to supplement the record to show the presence of and identity of a twelfth juror. The supplementation was unsuccessful in providing this proof.

No. 05-24-00446-CR (Nov. 19, 2025).

(This is a cross-post from 600Camp) If you aren’t yet a member of the Bar Association of the Fifth Federal Circuit (or “BAFFC” to those in the know) you should join! Our gifted new executive director, Donna Cuneo, led the charge for this awesome new publication, “Following the Fifth” that has general news and also highlights the great work of Krystil Lawton and Walter Woodruff — here is the first edition!

The Texas Supreme Court addressed the important topic of expert testimony about legal issues in In re Lopez. It held that the trial court improperly admitted a former judge’s expert testimony on whether an informal marriage existed because (1) the issue was within the common knowledge of jurors and (2) the witness offered legal opinions and judicial imprimatur (she was a former judge) rather than helpful expertise.

The Court emphasized that the expert repeatedly told the jury how she would rule “wearing [her] judge’s hat,” opined on a legal presumption, and thereby provided “an official endorsement” of one side’s position—testimony Rule 702 does not permit. The Court concluded the error was harmful and ordered a new trial. No. 24-0315 (Tex. Nov. 7, 2025).

Fofanah v. Rockwall Rental Properties clarifies some basic principles about JP court jursdiction over FED actions. The basic rule, of course, is that the JP court has jurisdiction unless there is a dispute about title. These principles, in turn, help define whether a title dispute has been presented:

• “Under Texas law, a substitute trustee’s deed, the deed of trust, and the notice to vacate are sufficient evidence of the foreclosure purchaser’s superior right to immediate possession in a forcible detainer action. . Any alleged defects in the foreclosure process or with the foreclosure purchaser’s title may not be considered in a forcible detainer action. Those defects may be pursued in suits for wrongful foreclosure or to set aside the substitute trustee’s deed, but they are not relevant in the forcible detainer action.” (citations omitted, emphasis added).
• “When the issues of title and possession are not so intertwined, the related title dispute may be prosecuted concurrently with the forcible-detainer action in district court. This remains true ‘even if the other action adjudicates matters that could result in a different determination of possession from that rendered in the forcible-detainer suit.”
• “One indication that a county court on appeal is called on to exceed its jurisdiction by adjudicating title to real estate in a forcible-detainer action is when a landlord-tenant relationship is lacking.”
• “’Title and possession issues are not inextricably intertwined if “the contract provides for a landlord-tenant relationship upon default, that the buyer becomes a tenant by sufferance in the event of default, or that the buyer is subject to a forcible-detainer suit upon default.”‘ A tenant-at-sufferance clause in a deed of trust separates the issue of possession from the issue of title.”

No. 05-24-01265-CV (Nov. 7, 2025).

The Fifteenth Court’s recent opinion in State of Texas v. Yelp is a good summary of Texas personal-jurisdiction law about online activity.

Texas sued Yelp under the DTPA, alleging that Yelp appended a “Consumer Notice” to the business pages of crisis pregnancy centers, including more than 200 in Texas, that misled Texas consumers. Yelp specially appeared.

The Court found that Texas did not adequately plead general jurisdiction. Raising a theory of “consent by registration” in response to the special appearance did not qualify as raising the issue in a pleading, as required in this procedural context.

While the Court did not reach the issue, it  showed skepticism toward reading Texas’s registration statutes as conferring consent to general jurisdiction.

• After the Supreme Court’s 2023 Mallory opinion, Texas intermediate appellate courts have held that, unlike the Pennsylvania statute in that case, Texas’s business-registration framework does not expressly condition registration on consent to all-purpose jurisdiction (either in the long-arm statute or the registration statutes).
• Section 9.203 of the Business Organizations Code, cited by some plaintiffs in this regard, has been read to equalize “duties, restrictions, penalties, and liabilities” of foreign and domestic entities in matters affecting intrastate business – not to  transform registration into blanket consent to suit.

Texas did establish specific jurisdiction, concluding that:

• Purposeful availment requires conduct that is … purposeful: not random or fortuitous, and designed to secure benefits in the forum. state Yelp’s location-specific curation, ad sales, and Texas market cultivation fit the bill.
• “Relatedness” does not demand a strict causal chain. It is enough that the suit “arises out of or relates to” the Texas-directed conduct. The Texas-focused placement of the Consumer Notice and its alleged effects on Texas consumers satisfied that standard.
• Nationwide conduct does not defeat forum relatedness. A defendant need not uniquely single out Texas if it deliberately includes Texas in its targeted markets.
• Internet presence alone is insufficient, but internet targeting matters. The Court distinguished cases about general news content, accessible in Texas, from conduct aimed at Texans seeking services in Texas.

No. 15-24-00040-CV (Oct. 16, 2025).

Contempt was inappropriate in the following situation:

“[T]he trial judge found ‘that certain terms of the divorce decree are not specific enough to be enforced by contempt and should be clarified.’ He then clarified the order to include the specific date, time, and address for Le to comply with the payment obligation. Despite correctly finding that the provision lacked sufficient clarity to be enforced by contempt, the trial judge nevertheless found Le in contempt of that same provision without providing adequate notice or a reasonable time for him to comply with the clarified order. Because Le did not have notice or a reasonable time to comply with the Clarification Order, the trial court’s finding that he acted with ‘willful disobedience to or disrespect of a court by acting in opposition to its authority’ was arbitrary, unreasonable, and without reference to any guiding rules or principles.”

In re Le, No. 05-25-00019-CV (Oct. 29, 2025).

Credit Suisse AG v. Claymore Holdings, on a second appeal about interest after an earlier appeal on the merits, affirmed the Fifth Court’s commitment to stare decisis:

Horizontal stare decisis addresses the respect that a court owes its own precedents. See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022). A three-judge panel must follow the decisions of earlier panels of the same court unless a higher authority has superseded it. Id. Horizontal stare decisis is nothing more than a manifestation of our commitment to precedent. Id. If this panel overruled the previous panel, there would be nothing that would stop a third panel from overruling this panel. See id. The result would not be order and stability but chaos and unpredictability.

No. 05-24-01124-CV (Oct. 21, 2025) (mem. op.).

My friend Arturo Ayala recently forwarded me yet another interesting article by his agency about the market for supersedeas bonds, “Appeal Bonds in a World of Nuclear Verdicts and Higher Interest Rates.” Worth a look!

Megatel Homes v, Martin, in the context of a dispute about arbitration of a contract to build a home, provides a succinct explanation of contract formation and its legal significance:

The parties’ conduct objectively manifested an agreement on the subject matter and the essential terms of the contract—Megatel would build a house at a specific address for the Martins in exchange for the Sales Price. Thus, we conclude that the parties entered into a contract that defined their respective rights. Both the June Document and July Document include the same arbitration clause that Megatel seeks to enforce, and to which the parties agreed. …  Although the Martins maintain that they would not have entered into the contract if they had known about the alleged misrepresentations made by Megatel, those complaints go to the merits of the lawsuit rather than whether a contract was formed. The terms of that contract, based on the undisputed conduct of the parties, necessarily include the arbitration provision even though it may not include the list of Special Features—a matter we do not reach today.

No. 05-25-00030-CV (Oct. 24, 2025) (emphasis added).

Stein v. Beneficient, again, confirmed an arbitration award under the deferential standard in Texas law. The Fifth Court reminded that an award must be confirmed unless a statutory ground for vacatur or modification is established, and that even a legal or factual mistake by the arbitrator does not justify overturning the result so long as the arbitrator was at least arguably construing the contract.

In particular, the Court held that the arbitrator’s damages methodology, which relied on the respondent’s SEC filings and internal valuations to assess the value of the equity interests at the time of breach, reflected contract-based reasoning rather than impermissible equitable relief. The court rejected challenges about interest calculation,  general methodology, and evidentiary rulings for similar reasons. No. 05-24-00914-CV; Oct. 10, 2025.

MUSA Auto Holdings, LLC v. Frunzi illustrates Texas’s narrow judicial review of arbitration awards when a party claims the arbitrator exceeded his powers.

The Fifth Court emphasized that the question is whether the arbitrator was empowered by the parties’ agreement to decide the issue, and whether the award is rationally connected to that agreement. Under that standard, “even a mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground for vacating an award.”

Applying that standard, the Court held the arbitrator acted within his authority by interpreting and applying the employment agreement’s specific “for Cause” definition—including its “willful” component—to the evidence, rather than imposing an extra-contractual standard.

The appellant’s main argument—that the arbitrator “rewrote” the agreement by requiring proof of scienter and by questioning whether the stated grounds were the “true reason” for the termination—failed because the arbitrator’s analysis was rooted in the contract’s text and was thus “rationally inferable from the parties’ agreement.” No. 05-24-00184-CV; Oct. 1, 2025.

In re Hefflefinger Partnership holds that a trial court, presiding over a post-judgment turnover proceeding, cannot adjudicate the substantive rights of a non-party by declaring a deed of trust void and reallocating sale proceeds. Specifically, the Fifth Court held that the turnover statute is a procedural collection device and does not authorize courts to resolve competing claims to property, or proceeds within the turnover action itself.

Because the statute “has no provision conferring authority on trial courts to decide the substantive rights of the parties properly before it in a turnover proceeding, let alone the rights of strangers to the underlying judgment,” the court held the trial court abused its discretion by voiding the lien and denying the lienholder any share of sale proceeds.

Mandamus relief was appropriate because the affected lienholder—who was not a party to the underlying judgment—lacked an adequate remedy by appeal. No 05-23-01091-CV, Oct. 2, 2025.

In Guillaume v. EKRE of Texas, an FE&D appeal, the appellant argued that the appeal became moot after the appellee conveyed the relevant property. The Fifth Court disagreed, accepting the appellee’s two counterarguments:

“First, EKRE relies on the “well-settled rule” that if the interest of either party is purchased by a third party after the suit has commenced, the purchaser stands in the shoes of the seller, the sale does not moot the case, and “[t]he lawsuit may be continued in the name of the seller, or the court may exercise its discretion to allow the purchaser to be substituted in as a party in place of the seller.”” (citation omitted).

“Second, EKRE contends that, regardless of this well-settled rule, the third-party purchaser leased the property back to EKRE and it therefore retains “its rights in the property as landlord.” No. 05-24-00316-CV (Sept. 17, 2025).

In Ovation Services v. Buckner Foods, the Fifth Court addressed basic issues in the business of tax loans, as follows:

1. Valid agreement. The Court held that the parties’ tax lien transfer and consolidation agreement was valid. It rejected arguments that the contract unlawfully created new liens for non-delinquent taxes or exceeded statutory limits on such contracts, explaining that the agreement “does not attempt to create a lien,” but instead relies on the transfer and subrogation to existing tax liens. Consolidating and refinancing multiple tax loans does not violate the Texas Tax Code so long as the underlying liens were originally created for delinquent taxes.
2. Equitable subordination. The Court confirmed the lender’s right to equitable subrogation for the prior tax liens it paid off. The opinion emphasized that “equitable-subrogation rights to prior liens become fixed at the time the proceeds from the refinancing loan are used to discharge the earlier lien,” meaning that the lender stepped into the shoes of the prior lienholder even if the prior liens were later released. The court also made clear that the lender was not a “mere volunteer” but acted at the property owner’s request and with the expectation of repayment and security
3. BFP. The Court held that the subsequent purchaser of the property was not a bona fide purchaser as to the lender’s liens. Because the relevant instruments were properly recorded in the real property records and specifically referenced the lender’s subrogation rights, the purchaser was on inquiry notice and could not claim to have acquired the property free of those liens.

Finally, the court declared the tax liens superior to any other interest in the property and enforceable by the lender, confirming the lender’s right to recover all amounts due under the property tax loan agreement and to pursue judicial foreclosure. No. 05-24-00496-CV, Sep. 11, 2025

In Dartex Holdings Corp. v. Royalty Lending II, Ltd., the Dallas Court of Appeals held that an affidavit filed to domesticate a foreign judgment under the UEFJA was facially deficient because it did not show the affiant’s personal knowledge. The attorney who signed the affidavit merely identified her role, recited addresses, and summarized the judgment without stating any basis for knowing those facts. The Court thus reversed and rendered, denying domestication, while allowing a compliant refiling. No. 05-24-00984-CV, Sept. 15, 2025

In Melton v. Randall Management, the Fifth Court reversed a summary judgment on a conversion claim, concluding that a property manager’s post-eviction conduct could constitute an unlawful exercise of dominion over the tenant’s belongings.

The Court emphasized that the relevant writ of possession only authorized officers to place the tenant’s property “outside the rental unit at a nearby location” or, at the officer’s discretion, to engage a warehouseman to store it. As the Court summarized, the manager “has not shown, and we have not found, that affirmatively removing and disposing of the evicted tenant’s personal property is one of [those] authorized” options.

Because the manager admitted it ultimately “removed the remaining debris … and disposed of it,” the appellate court held that fact issues existed on whether the disposal was wrongful, making summary judgment improper.The panel also rejected the manager’s effort to rely on the eviction writ as a blanket defense, distinguishing the lawful execution of the writ from the later, independent decision to discard the tenant’s property.No. 05-23-01315-CV, Sept. 8, 2025

The defendant in Western Securities, Ltd. v. Jaffer filed a special appearance, supported by a declaration. The trial court denied the special appearance.

The plaintiff did not object to the procedural adequacy of the special appearance, in the trial court or on appeal.

Although there was no party presentation of the issue, the Fifth Court reversed, citing its precedent that this special appearance was “unsworn” because the declaration and special appearance were not identical in substance, and thus did not comply with Tex. R. Civ. P. 120a:

Brescia’s declaration did not attest to all the facts alleged in the special appearance—only those stated in his declaration. His declaration did not say he had read the special appearance. It never even mentioned the special appearance. In fact, it was dated about one month before the special appearance was filed. Moreover, based on our review of the special appearance and the declaration, it is apparent that the special appearance set out several jurisdictional allegations that Brescia did not attest to in his declaration.

No. 05-24-01492-CV (Sept. 5, 2025).

In Polaris Elec. Co. v. Raspberry 353 LLC, the Fifth Court  held that a Taiwanese electronics manufacturer lacked sufficient jurisdictional contacts with Texas.

The company did not maintain offices, employees, or advertising in the state, and its only Texas-bound products reached the forum solely because a third-party customer directed shipment “FOB Taiwan.” Allegations that the defendant conspired to hinder collection of a Texas judgment and engaged in fraudulent transfers were not enough; the court concluded those acts occurred abroad and therefore could not supply the necessary “Texas activities.”

Rejecting stream-of-commerce arguments, the court emphasized that mere awareness a product may end up in Texas does not equate to purposeful availment when title and control pass overseas. As a result, a $30+ million default judgment was vacated and the substantive claims dismissed. No. 05-23-00382-CV; Aug. 29, 2025

A recent concurrence from the denial of a mandamus petition provided a reminder about the precedential value of a denial: “[T]his Court’s failure to grant a petition for writ of mandamus is not an adjudication of, nor even a comment on, the merits of a case in any respect, including whether mandamus relief was available.” (quoting In re AIU Ins. Co., 148 S.W.3d 109, 119 (Tex. 2004)).

The legend of “Bonnie and Clyde” continues with In re Matter of Parker. A distant relative of Bonnie Parker obtained an order requiring the disinterment of her remains and their reburial by Clyde Barrow’s resting place. (I did not have this dispute on my “bingo card” for 2025.)

The cemetery association appealed and sought to supersede the disinterment order, with the persuasive argument that “[l]eaving the obligations of the parties where they are and the remains of Mrs. Parker where they have been since 1945 perfectly preserves the status quo ….”

As to the law governing this unusual dispute, the Fifth Court held that an appellant subjected to a mandatory injunction is “entitled to supersede a non-monetary judgment” under Tex. R. App. P. 24.1(a). Because the disinterment of human remains is, definitionally, a one-time act that would moot any appellate review, the Court reversed the trial court’s refusal to set security,. TheCourt then fixed the amount of security at zero, noting the appellee’s failure to articulate any compensable harm from a stay, and Mrs. Parker’s lengthy and uninterrupted presence in the cemetery. No. 05-24-00809-CV (Aug. 27, 2025).

The Fischer case discussed last week also addressed fiduciary duties in the context of closely held corporations and post-divorce disputes.

The Court held that, under Texas law, officers and directors of a corporation owe fiduciary duties to the company itself, not to individual shareholders—even when those shareholders are former spouses.

The Court also rejected the argument that a marital relationship or the existence of a divorce decree could create or extend fiduciary duties between former spouses in their capacity as business co-owners.  Once divorce proceedings are initiated, any fiduciary duty arising from the marriage itself is extinguished.

Accordingly, there was no evidence to support the existence of a fiduciary relationship between the parties beyond the formal duties owed to the company. No. 05-23-00679-CV, Aug. 14 2025.

The Fifth Court received these facts in Yancey v. SLJ Co.:

• In July 2019, SLJ Company, LLC, obtained a $210,096.70 default judgment
  against Yancey, among others.
• After a January 2021 hearing on SLJ’s motion to appoint a receiver, the trial court appointed a receiver by a single-page order dated April 30, 2021.
• That receiver took no material actions, and then died in 2013.
• On December 11, 2023, SLJ filed an application for the turnover of non-exempt property and the appointment of a substitute receiver because the original receiver died.
• “Two days later, on December 13, 2023, the trial court signed a twenty-five-page order appointing receiver without conducting a hearing or providing notice to Yancey. Attached to the order was an eleven-page exhibit listing documents Yancey was ordered to deliver to the receiver within ten days of receipt of the order.”

The parties received the Court’s conclusion that this order was an abuse of discretion:

The record reveals no “great emergency or imperative necessity” requiring the appointment of a new receiver to replace the deceased receiver without notice or a hearing. n the contrary, the record suggests that no actions were taken with respect to the receivership between April 2021 and December 2023. The transcript of the January 2021 hearing on the first motion to appoint a receiver is in the record, but none of the squabbling over Yancey’s assets contained therein sheds light on her financial affairs nearly three years later in December 2023. Yet the trial court’s order, without notice or a hearing, provided the new receiver with comprehensive powers to assume Yancey’s property was not exempt; enter any real property or other premises where non-exempt property or Yancey’s records might be situated; and “employ reasonable destructive means to bypass or gain access to” non-exempt assets within any real property. 

No. 05-23-01285-CV (Aug. 21, 2025) (mem. op.) (citations omitted).

My capable friend Arturo Ayala of Court Surety Bond Agency recently wrote this helpful short article, “Texas Rule Changes Securing Supersedeas Bonds on Appeal.”

Hon David Gunn of Houston’s First Court of Appeals has given new life to the word “freshening” as an adjective for a frustrating series of court filings (thanks to Ben Taylor for drawing my attention to it):

In Fischer v. Fischer, the FifthCourt applied judicial estoppel to bar an ex-spouse’s post-divorce tort and fiduciary-duty claims.

During the divorce, she argued—and the family court accepted—that a post-marital “Agreement to Convert” stock into community property was “valid and legally enforceable.” After obtaining half of the company shares on that basis, she sued her former husband alleging misconduct tied to those same shares.

The Court noted that judicial estoppel turns on three factors: the party’s prior inconsistent position, success with that position, and the deliberate, unequivocal nature of the original stance. All three were satisfied: by embracing the Agreement to Convert, she “benefited from the divorce court’s acceptance of her position,” namely, a community-property award worth half the company. The Court concluded that her subsequent lawsuit was foreclosed because “all of [her] claims…are claims against converted property,” a position at odds with the estoppel she promised in the Agreement itself. No.05-23-00679-CV, Aug. 14, 2025.

No consideration existed when a purported settlement agremeent “simply stated that Al Jundi owed Plaintiff $224,500 and provided a payment schedule. The agreement contained no mutuality of obligation or bargained for exchange of promises. Plaintiff made no promises under the settlement agreement. It imposed no obligations on him. There was no detriment to him. He stood only to benefit from an additional recourse for recovery of his money. Al Jundi, in promising to pay a debt he did not personally owe, received no benefit.” Al Jundi v. Eljindi, No. 05-23-01121-CV (Aug. 11, 2025).

In Lindberg v. Roskind, the Fifth Court considered – and rejected – the plainitff’s argument that the defendant orchestrated a complex corporate scheme involving Texas-based entities. The Court found no evidence that the defendant himself had any direct contacts with Texas, such as conducting business, maintaining offices, or exercising control over the relevant entities from within the state. The defendant’s uncontroverted declaration established that he was a Florida resident, had not visited Texas in over four years, and had no managerial relationship with the Texas entities during the relevant period.

The Court also distinguished the Texas Supreme Court’s Volkswagen precedent, which found specific jurisdiction based on intentional conduct and a direct distribution system targeting Texas. In that case, there was clear evidence of purposeful conduct directed at Texas, including the use of an established distribution system and direct actions affecting Texas consumers. This record contained no such “nexus” between the plaintiff’s claims and alleged jurisdictional contacts. 05-25-00014-CV, Aug. 11, 2025

Conosir, LLC v. Santos confirms that reliance on an oral misrepresentation is not justified when it is “directly contradicted by the express, unambiguous terms of a written agreement between the parties.”

Here, the parties’ contract at issue unambiguously set forth the terms of a sale, and its merger clause explicitly foreclosed any alternative oral agreements. As a result, the court concluded that the element of reliance necessary for statutory fraud was negated as a matter of law. No. 05-23-01181-CV, July 30, 2025.

The Civil Practice and Remedies Code has provisions that can streamline proof of the reasonableness and necessity of various professional fees. The Fifth Court recently rejected the “argument that an opposing party’s ability to challenge reasonableness or necessity at trial turns on whether it attempted to serve a proper counteraffidavit.”

Acknowleding that in earlier cases, “the defendants … had attempted a counteraffidavit, we conclude that these opinions did not hinge on that fact. Rather, these opinions announced principles that apply even when no counteraffidavit is filed.” And in the leading supreme court case of Allstate, the supreme court “explained that section 18.001 is a ‘purely procedural’ statute that must not be turned into ‘a death penalty on the issue of past medical expenses.'” In re State Farm, No. 05-25-00498-CV (July 30, 2025).

The flight of the Democratic delegation from the Texas House has drawn a great deal of attention. The resulting legal filings in the Texas Supreme Court (Ken Paxton’s here, and these are the petition, response, and reply from the action filed by the Governor) display quality legal writing and excellent font choice. The Governor has chosen a classic look with a Century font, while the Texas Solicitor General uses Equity–generally speaking, a superior font, but perhaps not with the identical margins and spacing that one would use with Century (click here for a side-by-side comparison, which for some reason appears on 600Camp but comes out blurry on this site.)

The designation of a responsible third party after limitations ran was permissible – and its denial, an abuse of discretion, when:

“[Plaintiffs] waited to file suit until two days before the statute of limitations expired and Stonegate was not served with the suit until after the statute of limitations had run. Additionally, according to the record, the discovery period was open until May 23, 2025, and thus, Stonegate filed its February13, 2025 amended disclosures within the discovery period. Stonegate was also required to designate its experts and produce written reports by February 12, 2025, which it did. Furthermore, under [Tex. Civ. Prac. & Rem. Code] section 33.004, the disclosure and motion to designate were filed well before the sixtieth day prior to trial.”

In re Stonegate Contractors LLC, No. 05-25-00693-CV (Aug. 5, 2025).

A contractor conclusively established its claim — and was entitled to reversal and rendition in its favor — in West Tarrant Associates, Inc. v. Lloyd.

As to the contractor’s mechanic’s and materialman’s lien (“M&M” lien), the Court held that, because the contractor had complied with all statutory requirements for perfecting the lien—including timely filing the required affidavit and providing notice to the owner—the trial court had no discretion to deny foreclosure. Once a claimant proves it performed labor for the owner, the debt is valid, and the statutory requirements are met, “the court must order foreclosure under the Section 53.154 of the Property Code.”

On the contract claim, the court found that the owner’s failure to answer the lawsuit constituted an admission of the breach, and the contractor’s invoices provided sufficient evidence of the amount owed to require judgment in its favor. No. 05-24-00314-CV, Aug. 7, 2025

In Alarcon v. Santoyo, the Fifth Court reversed a judgment against a corporate officer, individually, for tortious interference with a contract. Under Holloway v. Skinner, a plaintiff must show that “the defendant officer acted in a fashion so contrary to the entity’s best interests that his actions could only have been motivated by personal interests.” Mixed motives—where an officer’s actions benefit both themselves and the corporation—are insufficient to establish individual liability for tortious interference.

Here, “the fact that Alacorn paid himself a salary as CEO and management fees during this … time period is not sufficient evidence of a personal benefit” from his decisions to pay certain other corporate debts instead of the one involving the plaintiff.  As a result, the Court held that there was no basis for holding the officer individually liable for tortious interference with the contract. 05-24-00297-CV, Aug. 4, 2025.

My colleague Mary Nix and I recently wrote an article for Headnotes, the Dallas Bar Association’s monthly publication, about the Dallas Court of Appeals’ most recent analysis of Tex. R. Civ. P. 683.

The Fifth Court addressed a recurring issue in departing-employee litigation in Layla’s Day Spa, Inc. v. HD Salon Group, LLC, in which it reversed the trial court’s judgment on the plaintiff’s claims for tortious interference with contract and prospective business relations.

To establish tortious interference with an existing contract, there must be proof of a willful and intentional act of interference, and for interference with prospective business relations, the conduct must be independently tortious or unlawful. Here, the court found no evidence that the defendants “solicited or encouraged” the technicians to leave their employment, nor that they “knowingly induced” any breach of contract. In fact, the technicians themselves testified that they left for their own reasons, and the plaintiff failed to present any specific facts showing improper conduct by the defendants.

The Court also reminded: “A tortious interference claim cannot be premised merely on the hiring of an at-will employee.” No.  05-24-00065-CV, May 21, 2025

The picayune, yet longstanding, distinction in Texas jury-charge practice between “objecting” and “requesting” jury questions/instructions reared its head again in Shawnee Inc. v. Kaz Meyers Properties, LLC. There, a request for an instruction about mitigation of damages was held insufficient to preserve error, even though the text of the requested instruction was dictated into the record. No. 05-23-00507-CV (July 10, 2025) (mem. op.).

In Feed Energy Co. v. Rodriguez, the Fifth Court addressed whether Texas courts could exercise personal jurisdiction over an out-of-state feed manufacturer whose product ultimately ended up in Texas and allegedly caused injury.

The Court emphasized that, under the “stream-of-commerce-plus” test, it is not enough for a defendant to foresee that its products might end up in Texas; rather, there must be evidence that the defendant specifically intended to serve the Texas market.

The Court found that the feed manufacturer’s actions—such as obtaining a Texas feed license, paying inspection fees, and knowing that some products might end up in Texas—did not amount to purposeful availment of the Texas market. The decision to ship the product to Texas was made unilaterally by a third party after the sale was completed in Iowa, and the manufacturer had no control over the product’s final destination. No. 05-24-01121-CV, July 11, 2025 (mem. op.)

In re Brooks summarizes authority on the practical, and not always remembered, requirement that matters in a mandamus petition have been presented to the trial-court judge; i.e.: “[A] relator may not raise challenges for the first time in a mandamus petition.” The opinion also acknowledges that “[o]n rare occasions we have relaxed this predicate when the circumstances confirmed that the request would have been futile and the refusal little more than a formality.” No. 05-25-00321-CV (July 3, 2025) (mem. op.).

Class-action litigation has drawn considerable attention after Trump v. CASA limited the use of nationwide injunctions. Another tool for expanding the impact of a given case is collateral estoppel, and that’s the subject of this article that I recently published in Salon.

In Werner Enterprises, Inc. v. Blake, the Texas Supreme Court addressed the role of the “substantial factor” requirement in tort causation. The Court held that, for negligence liability, it is not enough for a defendant’s conduct to be a “but-for” cause of the injury; the conduct must also be a substantial factor in bringing about the harm

The substantial-factor requirement “incorporates ‘the idea of responsibility’ into the question of causation”—that liability should only fall on a party whose actions are so significant in producing the injury that they are “actually responsible for the ultimate harm.” If a defendant’s conduct merely “created the condition which made the injury possible,” but did not itself substantially cause the injury, then proximate cause is not established as a matter of law.

Applying this principle, the Court found that the defendant driver’s alleged negligence—driving at an unsafe speed for icy conditions—was not a substantial factor in causing the plaintiffs’ injuries. Rather, the sole substantial factor was the other driver’s sudden and unexpected loss of control, which caused the vehicle to cross a wide median and collide with the defendant’s truck before the defendant had time to react. The defendant’s presence and speed on the highway were simply “the condition that made the injuries possible”: “[T]he sole proximate cause of this accident and these injuries—the sole substantial factor to which the law permits assignment of liability—was the sudden, unexpected hurtling of the victims’ vehicle into oncoming highway traffic, for which the defendants bore no responsibility.” No. 23-0493 (Tex. June 27, 2025).

Risk Point, LLC v. Santander Bank, N.A., a permissive appeal, addressed the proper interpretation of a complex “reconciliation audit provision” in a contract between a bank and a business that arranged insurance for car dealers who received financing assistance from that bank.

The Fifth Court held that the provision does not allow for reconciliation audits to be initiated at any time, as the bank had argued, but could instead only be initiated “during the three-month period following renewal, expiration, or earlier termination of a dealer’s coverage,” or, alternatively, during the policy term for specific portions of the year.

The court emphasized that reading the provision to allow audits at any time would render meaningless the specific timing language in the contract about timing, stating, “Santander’s interpretation of the second provision renders the first provision meaningless: the specific time period of three months following the end of coverage would add no meaning to the Reconciliation Audit provision under Santander’s interpretation, because the boundless second provision would simply incorporate and swallow the specific provision whole.” No. 05-24-00469-CV, June 25, 2025.

In Professional Service Indus., Inc. v. Ibey, the Fifth Court addressed the term “action” in Tex. Civ. Prac. & Rem Code § 150.002, and when the 2023 amendment to that statute becomes effective.

The Court held that “action” refers to the entire lawsuit, not to discrete claims or causes of action asserted within the suit. The Court explained, “the common meaning of the term ‘action’ refers to an entire lawsuit or cause or proceeding, not to discrete ‘claims’ or ’causes of action’ asserted within a suit, cause, or proceeding.” (Accord Coale & Taylor, Judgment Rendition in Texas, 75 Baylor L. Rev. 355, 360-61 (2023)).

As a result, the Court concluded that the 2023 amendment to section 150.002—which exempts certain cross-claims from a certificate of merit requirement—applies only to actions commenced on or after the amendment’s effective date. It emphasized that the Legislature could have chosen different language if it intended the amendment to apply to claims or pleadings filed after the effective date, but instead specified that it applies only to actions commenced on or after that date. Nos. 05-24-00541-CV & 05-24-00599-CV (Jun. 23, 2025)

In Calitex LLC v. Big Lot Stores, LLC, the Fifth Court reminded that “evidence of the amounts charged and paid, standing alone, is no evidence that such payment was reasonable and necessary.” Here, a tenant submitted invoices and testimony regarding the need for repairs and the amounts paid, but failed to present any additional evidence demonstrating the reasonableness of the charges.

The Court explained that simply showing the character of the services, the need for the services, and the amounts charged is insufficient. There must be “some other evidence showing that the charges are reasonable and necessary.” No. 05-24-00054-CV, Jun. 17, 2025

Within the last month, area courts have reached the following holdings:

• in Ethridge v. Samsung, a Fifth Circuit panel majority found that a manufacturer of batteries was subject to jurisdiction in Texas (over a dissent that shares common ground with the supreme court opinion cited below); No. 23-40094 (5th Cir. May 14, 2025).
• in BRP-Rotax v. Shaik, the Texas Supreme Court found that a manufacturer of aircraft engines was not subject to jurisdiction in Texas, because it lacked “an intent or purpose to serve the Texas market.” No. 23-0756 (Tex. June 20, 2025); and
• in Western Trails Charters and Tours, LLC v. Provance, the Dallas Court of Appeals held that an out-of-state bus company purposely availed itself of Texas by entering an “Interline Agreement” with Greyhound, but the “operative facts” of the claims did not arise from those contacts. No. 05-24-01089-CV (Tex. App.–Dallas May 29, 2025) (mem. op.).

All of these opinions are thoughtful and carefully reasoned. But Justice Busby’s concurrence in the Rotax case makes a powerful, big-picture point about this area of law – especially in “stream of commerce” cases, the International Shoe framework is complex, confusing, and remains substantially unsettled after decades of efforts to clarify it. He recommends an “originalist” approach, which may or may not be an improvement in terms of the results reached, but has much to commend it as a long-needed source of certainty in this significant area of commercial law.

Novo Point LLC v. Katz illustrates a situation when a series of orders can create judgment finality – as well as the importance of the specific language used in orders to refer to the claims that they address: “In arguing the appeal should be dismissed as untimely, Katz asserts that the trial court’s order on Schepps’s motion dismissed all of Baron’s intervention claims, not just the claims against Schepps, because it dismissed “each of the stated claims enumerated above[,]” which were all of the live claims in Baron’s amended plea. And because following that order, the only claims remaining were appellants’ claims, Katz argues the order granting Sandler Siegel’s motion dismissing all of appellants’ claims constituted a final judgment from which the trial court’s plenary power and appellate deadlines ran. We agree.”  No. 05-23-00677-CV (June 16, 2025).

My thoughtful friend Arturo Ayala recently wrote this informative short article as to when partial supersedeas bonds may be allowed.

An unfortunate event involving citation to “hallucinated” case authority ended with this sanctions order. Three lessons can be learned:

1. Avoid using Gen AI to do serious case research. There’s nothing wrong with asking it research questions to get ideas, and that can be quite helpful as part of an overall use of Gen AI to help write — so long as you remember that every citation it returns has to be checked for accuracy. Gen AI programs can look like databases, and they can act like databases, but Gen AI programs are not databases.
2. If it’s too good to be true, it is. The problem in this case arose from a hallucinated Texas Supreme Court case from the late 19th Century that involved materially similar facts. If that was a Westlaw search result, it would require double-checking because it’s just so unlikely. The best “tell” that Gen AI is hallucinating is that it’s giving you exactly what you want to hear.
3. Don’t lie behind the log. I don’t know all the facts of this case, but the order says that the appellant’s counsel did not take prompt action when the problem with the hallucinated citations was first brought to light. If something has been cited in error, get out in front of the error before your opponent and the court has to spend needless time and energy helping rectify it.

Today I did my yearly “Fifth and Fifth” update, on cases of interest to commercial litigators from the Fifth Circuit and Fifth District. This is a printout of my PowerPoint. In particulary, it was interesting to see how those two court are dealing with the Supreme Court’s recalibration of personal jurisdiction in the 2021 Ford Motor case.

Justice David Gunn recently wrote this interesting article in the South Texas Law Review about the evolution over time of an important part of the harmless erorr rule.

An out-of-state bus company purposely availed itself of Texas by entering an “Interline Agreement” with Greyhound, but the “operative facts” of the claims did not arise from those contacts. The Fifth Court held that the claims against the bus company were “principally concerned with the driver’s operation of the bus in Utah and [the company’s] conduct in employing the driver and otherwise providing the bus transportation in question,” rather than any activities or agreements that took place in Texas. Western Trails Charters and Tours, LLC v. Provance, No. 05-24-01089-CV (May 29, 2025) (mem. op.). (The graphic was an attempt to show, using AI, the “long arm” statute reaching out to a bus, which did not entirely succeed.)

Following up on the Orca opinion’s memorable warning about “red flags” and justifiable reliance, in American Midstream v. Rainbow Energy Marketing Corp. the Texas Supreme Court held that “[t]he e courts below impermissibly blue-penciled extra words into … the contract that gave rise to this dispute …” (specifically, reading the contract as if the words “scheduled” and “physical” appeared in a key contract term about deliveries). No. 23-0384 (Tex. May 23, 2024).

In Layla’s Day Spa, Inc. v. HD Salon Group, LLC, the Fifth Court addressed the measure of damages in a business-purchase dispute involving the loss of key employees.

The trial court awarded damages based on gross revenue, using two models: one comparing average annual revenues before and after the loss of technicians, and another dividing average revenue by the number of technicians and multiplying by the number lost.

The Fifth Court reversed, emphasizing that “the calculation of lost-profit damages must be based on net profits, not on gross revenue or gross profits.” No. 05-24-00065-CV, May 21, 2025.

“As to the October 6 answer being filed by Liang, a non-attorney, this Court has explained ‘a non-attorney’s answer on behalf of a corporation is a “curable defect” and does not make the answer ineffective. Although the answer is defective, it is sufficient to prevent the trial court from granting a no-answer default judgment against the corporate defendant.” Deal Finder LLC v. Cruz, 05-24-00311-CV (May 9, 2025).

“The issue in this case is whether a trial court, in ruling on a no-evidence motion for summary judgment, should consider previously filed evidence that is referenced in, but not attached to, a response to the motion. We hold that Texas Rule of Civil Procedure 166a(i) does not require attachment of previously filed summary judgment evidence and that the response at issue here sufficiently pointed out and discussed the evidence in compliance with the procedural rules.” State v. $3,774, No. 24-0258 (Tex. May 17, 2025).

In Roxo Energy, LLC v. Baxsto, LLC, LLC, the Texas Supreme Court addressed (again) the element of justifiable reliance, in the context of alleged oral promises that contradicted written agreements.

Specifically, the Court held that claims based on oral representations about the lessee’s intent to develop the mineral lease, rather than “flip” it, failed ecause the written lease expressly let the lessee transfer its interest with no obligation to drill or develop the land. The Court emphasized that “an unqualified contractual right to transfer a lease contradicts a prior oral promise not to do so,” making reliance on such oral promises unjustifiable.

The Court also rejected claims based on alleged misrepresentations about bonus payments. The only written commitment about bonus payments was a “most favored nations” clause, which was not breached. The Court explained that the absence of any language in the written agreements confirming the alleged oral representations about bonus amounts was itself a “red flag negating justifiable reliance””–“[T]he prudent response is to demand that the parties’ discussions be reflected in the writing—not to sign an agreement that makes no mention of the promises and then try to hold your counterparty to them anyway.”

No. 23-0564, Tex. May 9, 2025.

In Luxottica of Am., Inc. v. Gray, the Court of Appeals addressed the element of justifiable reliance in the context of fraud and related claims arising from the sale of franchise stores.

The Court held that the existence of clear contractual disclaimers and “as-is” provisions in the relevant agreements conclusively negated the element of justifiable reliance, which is required to prove claims for common-law fraud, civil conspiracy, and statutory

fraud. Specifically, the court pointed to language in the franchise and purchase agreements stating that the buyer “did not rely on any incidental statements about success made by [Luxottica], its affiliates or employees” and that the business was being conveyed “AS IS WHERE IS, WITHOUT WARRANTY EXPRESSED OR IMPLIED.” No. 05-23-00020-CV (May 5, 2025) (mem. op.). (LPHS represented the successful appellant in this case.)

I recently moderated a panel at the Fifth Circuit Judicial Conference about AI and the law, and was honored to meet two energetic thinkers in that important and rapidly developing area. You can learn more about them here:

• Judge Scott Schlegel, a Louisiana appellate, who publishes a lively and thoughtful blog about AI issues. I highly recommend keeping an eye on it.
• Professor Yonathan Arbel, of the University of Alabama Law School, who recently published a thought-provoking article in the NYU Law Review about how judges can productively use large language models when interpreting contracts.

I hope you enjoy their work and follow their thought leadership on the world-changing force of generative AI technology.

In the young days of the Republic, it was generally held that “estoppel could not be asserted against a sovereign.” Block v. North Dakota ex rel. Bd. of University and School Lands, 461 U.S. 273, 297 n.3 (1983) (O’Connor, J., dissenting).

Modern times have brought a more relaxed perspective on that principle, as summarized by the Texas Supreme Court in PDT Holdings, Inc. v. City of Dallas, No. 23-0842 (Tex. May 2, 2025):

Mistaken actions by city officials generally will not equitably estop the city from performing its governmental functions. But we have long recognized that estoppel may be necessary to prevent manifest injustice in exceptional cases where a citizen relies on affirmatively misleading government statements and suffers substantial loss as a result. …

 We agree that a mere mistake in issuing a permit is not sufficient for estoppel, but that is not what happened here. Instead, city officials affirmatively told the builder that 36 feet was the applicable height limit, issued an amended permit for that height after inspecting the construction, and stated that the duplex was “OK TO FINISH” even after they identified the ordinance violation. Accordingly, we hold that legally sufficient evidence supports the disputed elements of estoppel, and the trial court did not abuse its discretion in concluding estoppel is necessary to prevent manifest injustice.

No. 23-0842 (Tex. May 2, 2025).

In Exporttek, Inc. v. Vista Bank, the appellant offered these reasons for continuance of a summary-judgment hearing:

• The discovery has not expired.
• The discovery date expires on April 7, 2024.
• The motion for summary judgment addresses complex fact issues about what Defendant[] knew and when[,] which can only be resolved through further discovery.
• Plaintiff[s] intend to serve Defendant with written discovery prior to end of discovery deadline.
• Plaintiffs seek an amendment to the scheduling order to extend the time of the discovery to allow Plaintiffs to take the deposition of Defendant’s officer, Landon Willes[s].
• Specifically, the actions of the bank in the fast changing COVID regulatory climate while fast tracking loans for a “windfall” to clients requires serious investigation as to what Vista Bank was doing and whether they punished []Plaintiff[s] for Vista Bank’s hasty decisions.

The Fifth Court did not accept those reasons:

“These general and conclusory assertions do not satisfy the requirements of Rule 252. At best, Borrowers provided a vague description of the discovery they sought. Further, Borrowers failed to establish the materiality of any proposed discovery. Borrowers’ claims are for breach of contract and the contract at issue contained entire-agreement and no-waiver provisions. Motivations are not germane to the resolution of Borrowers’ breach of contract claims. Moreover, Borrowers did not provide any information regarding the diligence on their part in obtaining discovery prior to the hearing.”

The Court went on to review some unfavorable facts in the record about diligence. No. 05-24-00915-CV (Apr. 24, 2025) (mem. op.).

While the supreme court takes the entire case when it grants review, as a court of discretionary review it has discretion about what specific issues to address in its opinion. An example appears in First Sabrepoint Capital Mgmnt., LP v Farmland Partners Inc., which reversed on an issue about the timeliness of the trial court’s TCPA order, and then addressed a point about collateral estoppel:

While the court of appeals erred by declaring void the trial court’s order granting Sabrepoint’s TCPA motion, it correctly reversed the trial court’s order granting Sabrepoint’s motion for summary judgment based on collateral estoppel. Because collateral estoppel is the basis for the summary judgment motion and a basis for the TCPA motion, the doctrine’s application to this case will be at issue on remand. Accordingly, in the interest of judicial efficiency, we will address its application here.

No. 23-0634 (Tex. Apr. 25, 2025).

Addressing the unfortunate complexity that can arise from the interaction of judgment-finality principles and sanctions motions, the Fifth Court held in Bandas Law Firm, P.C. v. Modjarrad & Assocs., P.C.

“Based on the text of [Tex. R. Civ. P.] 329b(g), the supreme court’s opinion in [Lane Bank Equip. v. Smith Southern Equip., Inc.], and this Court’s applicable precedents construing them, we conclude that a postjudgment motion for sanctions may qualify as a plenary-power-extending rule 329b(g) motion to modify the judgment, but only if the motion for sanctions specifically requests a substantive change in the existing judgment.”

No. 05-23-01115-CV (Apr. 25, 2025) (mem. op.).

Willowgate Homeowners Ass’n v. Young rejected a HOA’s argument that the “crosshatched area” on a map was sufficient under the Statute of Frauds to describe an alleged common area. Specifically:

• Unlike the area in the map around a lake (with a description saying that “[a]ll areas except those crosshatched is common ground”), the designations for the private lots—including the lot at issue—did not use this clarifying language.
• Adding to the uncertainty, nothing in the record explained what the marks around that lot on the map were intended to mean—including crosshatched and non-crosshatched areas, as well as lines or arrows pointing to certain sections.
• Moreover, the map lacked a measurement scale, fixed markers, or other such data about the dimensions or boundaries of the crosshatched, non-crosshatched, lined, or arrowed areas.

No. 05-24-00173-CV, Apr. 21, 2025 (mem. op.).

“The difference between aming Carlos Whitfield and Donna M. Williams as WWW’s registered agent cannot be characterized as ‘minor.’ The critical distinction, however, is that an incorrectly named agent was not served pursuant to Tex. R. Civ. P. 106(a). Instead, process was served in accordance with the court’s [substituted-service] order under Tex. R. Civ. P. 106(b).” Allied World Nat’l Assurance Co. v. Nisus Corp., No. 05-24-00208-CV (April 16, 2025) (mem. op.).

A “one-satisfaction” rule required reversal in Dorvil v. Mason, when all roads led to the same $2 million in damages:

It is apparent from record before us, including the pleadings, the evidence admitted at trial and the closing argument of the Masons’ attorney, that the Masons sought to recover as actual damages on each of the causes of action asserted the $2 million dollars they loaned to Agile. The jury awarded the Masons $2 million dollars in actual damages on each of their direct claims against Dorvil, except their negligent misrepresentation claim, for which actual damages were not awarded. In keeping with the trial court’s order granting partial default judgment against Agile, the final judgment awarded the Masons breach of contract damages of $2 million against Agile and, additionally, held Dorvil jointly and severally liable for same. In addition, the judgment awarded the Masons damages of $2 million dollars on their direct claims against Dorvil. As a result, the final judgment in effect awarded the Masons actual damages against Dorvil in the amount of $4 million, resulting in an improper double recovery.

No. 05-23-01020-CV (April 10, 2025) (mem. op.) (emphasis added).

A recent order from the Fifth Court that a party provide copies of several un-findable opinions suggests that, yet again, someone misused generative AI technology and relied on “hallucinated” case law.

Two concepts frame the legal-sufficiency issue in Raoger Corp. v. Myers.

First, the Dram Shop Act imposes liability on providers of alcoholic beverages if they serve a customer who is “obviously intoxicated to the extent that he presented a clear danger to himself and others.” The Act requires that the intoxication be “apparent to the provider” when the alcohol was served—a higher tandard than the common-law requirement that the provider “knew or should have known” of the customer’s intoxication.

Second, the rule against “inferences on inferences” prohibits the stacking of conclusions to establish a fact. As Raorger summarized: “Findings must be supported by facts in evidence, not conjecture, and we cannot pile speculation on speculation and inference on inference.”

In Raorger, the plaintiff relied on test results showing that a driver had BAC of .139 approximately 3-4 hours after leaving a restaurant. The supreme court held that while the BAC test results supported an inference that the driver drank a large amount of alcohol, no direct evidence linked that inference to the driver’s appearance and behavior at the restaurant.

More specifically, the Court highlighted that all relevant witnesses testified that the driver did not show signs of obvious intoxication at the restaurant. Speculation about how he “might have” appeared based on his BAC results was insufficient: “Speculative and conclusory testimony, by experts and lay witnesses alike, is incompetent and cannot support or defeat summary judgment.”

Footnote ten of the opinion analyzes the application of this holding to expert analysis more generally. No. 23-0662, April 11, 2025.