Superseding at Half Net Worth Requires “Complete, Detailed Information”

Abel v. Texas Capital Bancshares, Inc.
Dallas Court of Appeals, No. 05-25-00932-CV (August 26, 2026)
Justices Goldstein (Opinion linked here), Garcia, and Lee

Ken Carroll

To supersede a money judgment, one normally must post a bond or cash in an amount equal to the sum of (1) compensatory damages and costs awarded in the judgment and (2) interest for the estimated duration of the appeal. TCPRC § 52.006(a). But if that amount exceeds half the judgment debtor’s net worth as determined by generally accepted accounting principles, he or she may supersede by posting a bond or making a deposit in the amount of half his or her net worth, provided the judgment debtor also files an affidavit that “states complete, detailed information concerning the debtor’s assets and liabilities from which net worth can be ascertained.” Tex. R. App. P. 24.2(c)(1).

Facing a $7 million judgment, Abel tried to avail herself of the half-your-net-worth alternative to supersede. But the trial court and the Dallas Court of Appeals ruled the affidavit she filed in support did not provide sufficiently “complete, detailed information.” Here is what her affidavit stated:

The Court of Appeals explained that, “‘Complete, detailed information,’ for purpose of the rule, is sufficient information, or supporting documentation, from which the assigned values of the assets and liabilities in the affidavit can be verified.” Here, although Abel provided amounts for various categories of assets and liabilities, she attached no supporting documents and provided no information from which those amounts could “be verified.” For example, she didn’t specify what the “cash equivalents” and “accrued receivables” were or include the year, make, and model of the truck or trailer; nor did she break down what was included in “accrued liability.” Because the her affidavit was insufficient under the statute, Abel was not entitled to supersede based on half of her purported net worth.

Ratification Saves Condominium Assessments, But Not the Judgment

La Villita Condominium Community, Inc. v. Lanae
Dallas Court of Appeals, No. 05-24-00820-CV (August 7, 2026)
Justice Miskel, Kennedy, and Rossini (Opinion, linked here)

Robert Fountain

A corporation’s directors may ratify an act they could have authorized in the first instance. In La Villita, a properly elected condominium board ratified two special assessments; that conclusively established that the assessments were valid without requiring the Court to decide whether the directors who originally approved them were properly appointed.

La Villita Condominium Community consists of 141 units governed by a declaration and bylaws. In February 2022, the board amended the bylaws to expand from three directors to five. After two directors resigned, the sole remaining director appointed four unit owners to fill the two vacancies and the two new seats. That board imposed a $3.4 million special assessment in August 2022 and a $2.9 million special assessment in May 2023. The unit owners elected all five directors at the Association’s December 2023 annual meeting, and the elected board unanimously ratified both assessments in April 2024.

Melissa Lanae’s allocated shares of the assessments were $22,668.79 and $19,335.14. The Association sued in November 2022, seeking Lanae’s unpaid shares of both assessments and collection costs and to foreclose its assessment lien. Following a two-day trial, the jury found Lanae had not failed to comply with the declaration. The jury’s answers reflected implied findings that the assessments had not been approved or ratified by the requisite board majority at a meeting with a quorum and that the directors were not properly elected or appointed. The trial court rendered a take-nothing judgment against the Association and awarded Lanae $21,000 in attorney’s fees, plus conditional appellate fees.

The Dallas Court of Appeals reversed. Instead of deciding whether the directors who originally approved the assessments were properly appointed, it relied on the later ratification. The evidence that the unit owners properly elected all five directors in December 2023 was uncontroverted, as was the testimony that those directors unanimously ratified both assessments in April 2024. The Court therefore held the assessments were validly ratified as a matter of law and that no evidence supported the jury’s contrary implied findings.

But, somewhat curiously, that did not entitle the Association to rendition of judgment. Because liability was contested at trial and damages were unliquidated, the appeals court held that Texas Rule of Appellate Procedure 44.1(b) prohibited remand for a separate trial on damages alone. The Court therefore remanded for a new trial on both liability and damages.

$25-Million Supersedeas Cap Applies Per Judgment Debtor, Not Per Judgment, Not Per Bond

In re Greystar Development & Construction, L.P.
Supreme Court of Texas, No. 24-0293 (May 22, 2026)
Opinion by Justice Busby (linked here), Dissent by Justice Huddle (linked here)

Ken Carroll

Texas Civil Practice & Remedies Code § 52.006(b), which deals with bonds and other security posted to supersede a judgment pending appeal, says, “Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of: (1) 50 percent of the judgment debtor’s net worth; or (2) $25 million.” But does the $25-million cap in (b)(2) apply per judgment or per judgment-debtor or per bond? In a 5-4 decision—with both the majority and dissent insisting they were “[h]ewing to the text,” “[a]pplying the statute’s plain language,” “adher[ing] to the words the Legislature chose”—the Supreme Court of Texas held that the $25-million statutory cap applies per judgment-debtor.

Three Greystar affiliates were held jointly and severally liable for $360 million in a lawsuit arising from a construction-crane accident. Relying on § 52.006(b)(2), they posted one joint bond in the amount of $25 million and noticed their appeals. Plaintiffs moved for review of the bond, arguing it was insufficient as a matter of law because the $25-million cap of § 52.006(b)(2) applied to each judgment debtor individually, not collectively. The trial court agreed, and the Dallas Court of Appeals affirmed.

The Greystar entities sought relief in the Supreme Court by mandamus, pursuant to Tex. R. App. P. 24.4(a). But by the narrowest of margins, the Supreme Court agreed with the lower courts. The majority drew heavily on the singular, per-debtor formulation of the definition of “security” in § 52.001: “‘security’ means a bond or deposit posted … by a judgment debtor to suspend execution of the judgment ….” Substituting that definition for the word “security” in § 52.006(b), the majority argued, demonstrates legislative intent that the cap be applied on a per-debtor basis: “the amount of [a bond or deposit posted … by a judgment debtor to suspend execution of the judgment] must not exceed … $25 million.” Further, the majority said, interpreting the $25-million cap to apply on a per-debtor basis is consistent with the explicitly per-debtor alternative standard of § 52.006(b)(1)—capping the required security at “50 percent of the judgment debtor’s net worth.” And it aligns with other aspects of appellate practice, such as the requirement that each party seeking to avoid a judgment file its own appeal. Finally, the majority noted anomalies that could arise from not applying the cap on a per-debtor basis when a judgment is affirmed with respect to fewer than all defendants.

The dissent wasn’t buying it. The language of the statute, the dissent argued, unambiguously applies the $25-million cap not on a per-debtor or per-judgment basis, but on a per-bond basis. The dissent recounted Texas’s long history of allowing appealing parties to file one joint bond to supersede a judgment pending appeal and the Legislature’s presumed awareness of that practice. The Legislature, the dissent contended, made no distinction in § 52.006(b) between a bond filed by an individual judgment debtor and a joint bond filed by multiple debtors. So where, as here, defendants who are jointly and severally liable under a judgment seek to supersede that judgment on appeal with one joint bond, the plain language of the statute says the “amount of [that] security,” that bond, is capped at $25 million.

Unless the Legislature amends § 52.006(b) to explicitly say otherwise, however, the $25-million cap will be applied on a per-debtor basis, as interpreted by the majority.

Trial Court’s Failure to Hold a Hearing on TCPA Motion ≠ Denial by Operation of Law

Swicegood v. Clemishire
Dallas Court of Appeals, No. 05-26-00159-CV (May 20, 2026)
Chief Justice Koch (Opinion linked here) and Justices Goldstein and Garcia

Ken Carroll

The hearing on a TCPA motion to dismiss ordinarily must be held within 60 days after the motion is served, and the trial court must rule within 30 days after the hearing. Tex. Civ. Prac. & Rem. Code §§ 27.004, 27.005(a). If the trial court doesn’t timely rule, the motion is deemed denied by operation of law and the movant may immediately appeal. Id. §§ 27.005(a), 27.008(a). But failure to timely hold a hearing is not the same as failure to timely rule.

Here, the trial court did not conduct a hearing on Swicegood’s TCPA motion to dismiss within the prescribed 60-day period. Swicegood appealed, equating that failure to hold a timely hearing with a failure to rule, which would result in the motion being denied by operation of law and give rise to a right of appeal. The Dallas Court dismissed the appeal for want of jurisdiction. “Without a hearing,” the Court explained, “the deadline for the trial court to rule on a motion to dismiss is never triggered, and no denial by operation of law can occur.” Therefore, the Court held, “because appellant’s dismissal motion was not heard, it was not denied by operation of law, and no basis for an appeal exists.” In so ruling the Court followed its earlier decision in Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235 (Tex. App.—Dallas Sept. 26, 2017, no pet.), in which it cautioned litigants that it is the TCPA movant’s “responsibility to obtain a timely hearing on the motion to dismiss.”

Accord and Satisfaction by Check Memo

The Bryant Law Firm v. Walker  

Supreme Court of Texas, No. 25-0131 (May 8, 2026) 

Per Curiam Opinion (linked here)

Ken Carroll

Who among us, when embroiled in a dispute with a landlord or merchant, has not been tempted to send our adversary a check in the amount we think is fair, emblazoned with the words, “Cashing this check constitutes a full and final settlement of all claims between us”? Guess what—it can work.

Walker retained Bryant, a lawyer, to get his child-support obligations terminated. After more than a year of continuing to pay child support and with no apparent progress on his case, Walker fired Bryant, demanded a refund of the fees he’d paid, and lamented that, in addition to those fees, he’d had to continue paying support because Bryant hadn’t gotten the obligations lifted. After some back and forth, Bryant responded with a check for the full amount of the fees Walker had paid, but included this on the memo line of that check: “CASH OF THIS CHECK REPRESENTS A FULL & FINAL SETTLEMENT AND RELEASE OF ALL CLAIMS AGAINST [BRYANT] & [THE BRYANT LAW FIRM] AND REFUND OF ALL ATTORNEY’S FEES ON [THIS MATTER].” Bryant also included a release agreement with the check. Walker cashed the check after crossing out the settlement language on its face. He did not sign the release agreement. Then, after another attorney got his child-support obligations terminated, Walker sued Bryant, asserting malpractice and other claims. The trial court rendered judgment for Walker, awarding actual and exemplary damages. The court denied Bryant’s motion for judgment notwithstanding the verdict based on the affirmative defense of accord and satisfaction. A divided panel of the 14th Court of Appeals affirmed.

But the Supreme Court disagreed. The Court held that “[t]he evidence in this case conclusively establishes the negotiable-instrument defense” embodied in Tex. Bus. & Com. Code § 3.311. It explained that “Walker’s intentional strike-through of the notation on the check does not relieve him of the legal consequence of negotiating it and depositing it into his account.” “Under the accord-and-satisfaction doctrine,” the Court held, “a claimant may not alter the conditions under which a party tenders payment, accept the payment, and continue to sue for claims covered by a release.” The Supreme Court therefore reversed and rendered a take-nothing judgment for Bryant.

Tornadoes & Hot Dogs: Parsing the Ordinary Meaning of Contract Terms

Privilege Underwriters Reciprocal Exchange v. Mankoff
Supreme Court of Texas, No. 24-0132 (February 13, 2026)
Opinion by Justice Lehrmann (linked here)

Michael P. O'Brien

“Asking abstractly whether a tornado is a windstorm seems like it may lead us into an unsolvable conundrum like the passionately debated controversy of whether a hotdog is a sandwich.” – Court of Appeals Justice Emily Miskel

The seemingly simple question whether a tornado is a windstorm drove years of litigation in this property-insurance case. The question reached the Supreme Court of Texas, which held that yes, a tornado is indeed a windstorm.

Homeowners Jeff and Staci Mankoff sued their insurer, Privilege Underwriters Reciprocal Exchange (PURE), seeking additional insurance proceeds after a 2019 tornado damaged their home. PURE paid the claim but applied an $87,156 “Windstorm or Hail Deductible,” maintaining that tornado damage fell within the policy’s undefined term “windstorm.” The Mankoffs disagreed, but the trial court sided with PURE on summary judgment.

A divided Dallas Court of Appeals reversed. The majority concluded that “windstorm” was ambiguous because the term was undefined and susceptible to more than one reasonable meaning. The court pointed to meteorological distinctions, an encyclopedia’s separate classification, and several Insurance Code provisions listing “tornado” and “windstorm” as separate perils. Applying the rule that ambiguous exclusionary provisions must be construed in favor of the insured, the court rendered judgment for the Mankoffs. Justice Miskel dissented, arguing that dictionary definitions consistently describe both windstorms and tornadoes as storms marked by violent winds.

The Texas Supreme Court agreed with Justice Miskel. The Supreme Court examined dictionary definitions, statutory usage, and case law, finding a “common thread”: a windstorm is a storm with violent, strong winds. Tornadoes, defined by their violent rotating winds, fall squarely within that definition. The Court noted that some dictionaries even explicitly define a tornado as a type of windstorm.

The Court rejected the Mankoffs’ argument that statutory provisions listing tornadoes and windstorms separately indicated legislative intent to treat them as mutually exclusive categories. Instead, the Court explained, the Legislature may list narrower terms alongside broader ones for emphasis without excluding the former from the latter. No Texas court had previously held that a tornado is not a windstorm, and the Supreme Court declined to create such a distinction. The Court reversed the appeals court’s judgment and reinstated the judgment of the trial court, holding the common, ordinary meaning of “windstorm” in an insurance policy unambiguously includes a tornado.

The decision follows the principle that undefined words are generally given their ordinary meaning. Ask a person on the street or a jury if a tornado is a windstorm, and they are likely to answer yes. But the jury is still out on whether a hot dog is a sandwich.

Appellate Self-Care: Attorney, Don’t Forget Your Own Notice of Appeal

Townsend v. Air Bon Air Conditioning Co. 

Dallas Court of Appeals, No. 05-24-00884-CV (February 9, 2026)

Justices Garcia (Opinion linked here), Jackson, and Lee

 

Ken Carroll

The Townsends sued three HVAC contractors, alleging they had negligently performed maintenance on the Townsends’ home that caused carbon-monoxide poisoning. One defendant, Hatley Brothers, responded with a combined motion for summary judgment and for sanctions pursuant to Tex. R. Civ. P. 13 and TCPRC Chapter 10. The trial court granted summary judgment to Hatley Brothers and also ordered the Townsends “and [their] counsel” to pay Hatley Brothers $10,000 in attorney’s fees as a monetary sanction.

The Townsends appealed both the summary judgment and the sanctions award, contending, among other things, that the trial judge erred by imposing sanctions without conducting an evidentiary hearing. The Court of Appeals affirmed summary judgment, but reversed and remanded the sanctions order against the Townsends. The Court held, “It is settled law in this Court that a trial judge must hold an evidentiary hearing before imposing sanctions under either Rule 13 or Chapter 10,” and the trial court had not done so in this case.

The Court of Appeals noted, however, that the Townsends’ counsel had not filed his own notice of appeal from the sanctions order or included himself as an appellant in the notice he filed for the Townsends. So, the Court held it “lacked appellate jurisdiction to review the sanctions order as to him” and therefore affirmed that part of the trial court’s order. Yikes!

This holding and result are not novel or unique. The Austin Court of Appeals, for example, has held that, “When an attorney and his client are both sanctioned, and both wish to appeal the sanctions order, this Court and other courts of appeals have held that it is essential that both the client and the attorney be named as appellants in the notice of appeal. This is because a client lacks standing to appeal sanctions imposed on her attorney.” Cortez v. Brown, 2019 WL 961672, at *2 (Tex. App.—Austin Feb. 28, 2019, pet. denied). Moral: where sanctions orders are concerned, attorneys must take care of themselves as well as their clients.

The Mandate: Wait for it ….

 In re Madison

Supreme Court of Texas, No. 24-1073 (October 31, 2025)

Per Curiam Opinion (linked here)

 

Ken Carroll

“When a party appeals the denial of a motion to dismiss under the Texas Citizens Participation Act, all trial court proceedings are stayed by operation of law, and the statutory stay remains in effect until the appeal has been resolved”—more specifically, until the Court of Appeals “signals that the appeal is resolved” by issuing its mandate. Parties must wait until the mandate issues before resuming proceedings in the trial court—a lesson learned the hard way here. 

Madison sued an HOA and a law firm. The law firm filed a motion to dismiss under the TCPA, which the trial court denied. But the law firm appealed that denial pursuant to TCPRC § 51.014(a)(12), and the Court of Appeals reversed, rendered judgment for the firm, and remanded. After the appeals court denied her motion for rehearing and for reconsideration en banc, Madison timely sought review in the Texas Supreme Court. Even before Madison filed her petition for review, however, the law firm moved for an award of attorney fees under the TCPA, relying on the appeals court’s judgment, and the trial court granted that motion.

The court of appeals declined to set aside the attorney-fees order on mandamus, but the Supreme Court disagreed. Under TCPRC § 51.014(b), the appeal of an order denying a motion to dismiss under the TCPA “stays all … proceedings in the trial court pending resolution of that appeal.” The Supreme Court explained that an appellate court’s judgment “takes effect” and the appeal is resolved “when the mandate is issued” (quoting Tex. R. App. P. 18.6)—not upon issuance of the appeals court’s opinion and judgment. “When the appellate mandate issues, the automatic stay [under TCPRC § 15.014(b)] expires,” not before. And under Tex. R. App. P. 18.1, a court of appeals cannot issue its mandate until after the Supreme Court has completed or denied a review that has been timely requested or the time to seek such review has expired.

Here, the law firm moved for its fees under the TCPRC, and the trial court granted that motion before the appeals court issued its mandate—even before it could have issued its mandate, since Madison timely sought Supreme Court review of the appeals court’s decision on the merits, and the Supreme Court had not yet ruled. As a result, “the court of appeals’ judgment was not final and had not yet taken effect, so the automatic stay remained operative, and the trial court had no authority to act.” The Supreme Court held, therefore, that “[e]ntertaining and granting the motion for attorney’s fees before the court of appeals’ mandate had issued—indeed, before the court of appeals was authorized to issue its mandate—was an abuse of discretion,” and so the Court granted Madison’s mandamus petition. 

Before Filing an Appeal, Remember Your Fundamentals

LRH Real Estate, LLC v. Dallas County

Dallas Court of Appeals, No. 05-25-00771-CV (October 17, 2025)

Chief Justice Koch (Order, linked here) 

Ken Carroll

Rashad Haiddar, a non-attorney acting pro se, filed an appeal and an appellants’ brief on behalf of himself, LRH Real Estate, LLC, and Autochoice Garland TX, LLC. But neither Haiddar, individually, nor Autochoice was a party to the judgment from which Haiddar appealed. In an order striking appellants’ brief and threatening dismissal of the appeal, the Dallas Court of Appeals reminded the parties and practitioners of two fundamental rules:

• “Generally, only parties of record who have been personally aggrieved by the trial court’s judgment have standing to appeal the judgment,” citing State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015); and

• “[A]ny aggrieved corporate party must be represented by counsel,” citing Kunstoplast of Am., Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996) (per curiam).

The Court warned that the appeal would be dismissed unless (a) the corporate parties, LRH Real Estate and Autochoice, retained an attorney to represent them in the appeal, and (b) Haiddar and Autochoice demonstrated that, contrary to the general rule, they do somehow have standing to pursue the appeal of a judgment to which they were not parties.

BONDie & Clyde: Superseding a Non-Monetary Judgment

In re Bonnie Elizabeth Parker

Dallas Court of Appeals, No. 05-24-00809-CV (August 27, 2025)

Chief Justice Koch (Opinion, linked here), and Justices Goldstein and Garcia

 

Ken Carroll

In memory and in lore, Bonnie Parker and Clyde Barrow are inseparable. In fact, however, Bonnie was interred at Crown Hill Memorial Park, while Clyde rests in a Western Heights Cemetery plot several miles away. Invoking Texas Health & Safety Code § 711.004, Bonnie’s niece sought to reunite the two by having Bonnie’s remains removed from Crown Heights and reinterred next to Clyde at Western Heights. But § 711.004(a) allows for disinterment only “with the written consent of the cemetery organization operating the cemetery,” and Crown Hill refused. Subsection 711.004(c), however, provides nevertheless that, when the consents required by subsection 711.004(a) cannot be obtained, remains “may be removed by permission of a county court of the county in which the cemetery is located.” So, off to county court went Bonnie’s niece, where she obtained a permanent injunction ordering Crown Hill to enter into arrangements for Bonnie’s disinterment within 10 days after the judgment.

Crown Hill appealed. When the trial court refused to stay its judgment pending appeal, Crown Hill sought emergency relief in the Dallas Court of Appeals, and that Court obliged.

Treating Crown Hill’s filing as a motion for review under TRAP 24.4, the appeals court held that when a judgment is for something other than money or an interest in property, the trial court ordinarily “must set the amount and type of security that the judgment debtor must post” and allow the appellant to supersede, per TRAP 24.2(a)(3). Here, the Court said, the “appeal will become moot if Crown Hill is not permitted to suspend enforcement of the judgment.” By contrast, allowing Bonnie’s remains to remain at Crown Hill where they have been since 1945 “perfectly preserves the status quo and the parties’ rights pending appeal.” So, the Court reversed the trial court’s order denying a stay, set the amount of Crown Hill’s bond at $0, and suspended enforcement of the trial court’s judgment pending disposition of the appeal—leaving Bonnie and Clyde apart, at least for a little while longer. 

Another Permissive Appeal Bites the Dust

FCA US LLC v. Adient US, LLC

Dallas Court of Appeals, No. 05-25-00836-CV (July 28, 2025)

Justices Smith, Clinton (Opinion, linked here), and Barbare

 

Ken Carroll

Petitions to pursue permissive appeals continue to fare poorly, with the Courts of Appeals insisting on strict compliance with TRCP 168 and TCPRC § 51.014(d) and denying petitions that don’t dot every “i” and cross every “t.” 

Adient secured a summary judgment dismissing FCA’s claims against it. The trial court denied FCA’s motion to reconsider, but granted its request for leave to pursue a permissive interlocutory appeal pursuant to TRCP 168 and TCPRC § 51.014(d). The court found (1) that its “rulings involve a controlling question of law on which there is substantial ground for difference of opinion”—specifically, the scope and application of “the component-part-supplier doctrine, announced in Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex. 2004)” and an exception to that doctrine—and also (2) that an interlocutory appeal of the issue “may materially advance the ultimate termination of this litigation”—i.e., it addressed both prongs of Rule 168 and § 51.014(d), or so it thought.

The Dallas Court of Appeals rejected FCA’s petition to pursue its permissive interlocutory appeal. The Court explained that it “strictly construe[s] applications for permissive appeals because statutes allowing for interlocutory appeals are an exception to the general rule that only final judgments are appealable.” Here, the Court said, the trial court’s order did not comply with Rule 168’s requirement that it “state why an immediate appeal may materially advance the ultimate termination of the litigation.” It just broadly asserted that an interlocutory appeal might advance ultimate termination of the litigation, without saying why that was so.  The appeals court held that, “The order’s rote recitation of possible material advancement—without an explanation of ‘why’ immediate appeal may advance ultimate termination of the litigation—fails to satisfy an express requirement of Rule 168.” The appeals court rejected FCA’s argument that the “why” could be inferred from the trial court’s order and its context—i.e., that absent an interlocutory appeal, the purported “summary-judgment error could result in an unnecessary trial without Adient as a party.” Strict compliance with Rule 168 requires that the trial court’s order “state” why an interlocutory appeal may materially advance termination of the litigation. 

BEWARE: An Order that Disposes of All Claims Starts the Appellate Clock Whether the Order Says It’s Final or Not

Parker v. Wisehouse Investment Group, LLC

Dallas Court of Appeals, No. 05-24-00104-CV (June 18, 2025) 

Justices Garcia, Miskel (Opinion, linked here), and Lee

Ken Carroll

A court order meant to be a final judgment will usually say so. The order may be labeled as “Final,” include a “Mother Hubbard Clause,” or expressly state that it’s appealable. But even if an order doesn’t include such explicit indicia of finality, it still can constitute a final judgment—and the deadline to appeal will be triggered—if the order disposes of all claims and all parties. The defendants in a procedurally complicated dispute learned that the hard way when the Dallas Court of Appeals dismissed for want of jurisdiction because it held they filed their notice of appeal too late. 

The trial court granted summary judgment to the plaintiff and awarded them attorneys’ fees under the Declaratory Judgments Act. One of the plaintiffs moved to have the court award costs and post-judgment interest, but waited 44 days after the summary-judgment orders to do so. The trial court nevertheless obliged, issuing judgments that included those additional items and labeling them as “final” and “appealable.” The defendants appealed. 

The Dallas Court of Appeals dismissed for want of jurisdiction. The Court held that the original summary judgment orders constituted final judgments. It explained that “a summary-judgment order” will be deemed “final when (1) it actually disposes of every pending claim and party or (2) it clearly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so.” The summary-judgment orders here did not contain any indicia of finality—they were not labeled as final or appealable, and they did not state that they disposed of all claims and all parties. Nevertheless, the appeals court held, the summary-judgment orders did in fact dispose of all claims, and that started the clock on the defendants’ 30-day deadline to file either their appeal or post-judgment motions that would extend the time to appeal. Unfortunately, the defendants did neither before the deadline ran. Although one of the plaintiffs had moved the court to add costs and interest—arguably a motion to modify judgment—that motion came after the deadline had already passed for post-judgment motions. The motion therefore had no effect and the purported “final judgments” that followed therefore were void and did not re-start the appellate clock. 

The defendants tried to salvage their appeal by arguing that the summary-judgment orders were not final because they did not award costs and because they did not expressly dispose of the defendants’ cursory pleas for costs and fees in the prayers that concluded their answers. But, the Court said, “a request for costs is not a claim for affirmative relief, and ‘a trial court is not required to assess costs for its judgment to be final.’” Further, the defendants did not state a cognizable basis for an award of fees and, in any event, the award of fees to the plaintiffs as prevailing parties constituted an implied rejection of defendants’ reciprocal prayers for fees. 

“There Is No Such Thing as a Public-Interest Exception to Mootness in Texas.”

Texas Dep’t of Family and Protective Services v. Grassroots Leadership, Inc.

Supreme Court of Texas, No. 23-0192  (May 30, 2025) 

Opinion by Justice Young (linked here)

Ken Carroll

Faced with deciding “whether Texas courts are constitutionally authorized to adjudicate moot cases that raise questions of considerable public importance,” the Supreme Court of Texas emphatically said, “No.” 

The Texas Department of Family and Protective Services adopted a rule that authorized state licenses for two residential facilities at which the federal government detained mothers and children after their illegal entry into the United States. Grassroots, a nonprofit civil-rights organization, and several mothers detained in the licensed facilities sued to challenge that rule under the Administrative Procedure Act, seeking to prohibit the detention of children there. The trial court granted summary judgment, declaring the rule invalid, and enjoined the department from granting licenses under it. The State appealed. 

The Texas Department of Family and Protective Services adopted a rule that authorized state licenses for two residential facilities at which the federal government detained mothers and children after their illegal entry into the United States. Grassroots, a nonprofit civil-rights organization, and several mothers detained in the licensed facilities sued to challenge that rule under the Administrative Procedure Act, seeking to prohibit the detention of children there. The trial court granted summary judgment, declaring the rule invalid, and enjoined the department from granting licenses under it. The State appealed. 

By the time that appeal neared resolution, however, the plaintiffs were no longer detained at the facilities. The court of appeals therefore concluded that the entire case was “moot by definition.” But rather than dismissing, the appeals court invoked a “so-called ‘public-interest exception’ to mootness, under which it could reach the merits despite having no live dispute [before it] involving the parties to the litigation.” The public-interest exception, the court explained, “allows appellate review of a question of considerable public importance if that question is capable of repetition between either the same parties or other members of the public but for some reason evades appellate review.” Here, “the evidence establishe[d] that the average length of detention [at the facilities] is eleven days, a period too short to complete litigation.” So, the court ruled, the exception applied. It then agreed with the trial court on the merits, finding the rule invalid. 

The Supreme Court of Texas reversed, holding that a “‘public-interest exception’ violates the Texas Constitution’s justiciability limitations.” “Mootness is a constitutional limitation on judicial authority,” the Court emphasized, and not “a matter of judicial administration or prudence.” The Court provided a lengthy analysis of the concept of constitutional justiciability, of which mootness and “the core requirement of a live dispute” (and the corollary ban on advisory judicial opinions) are one part. “[T]he only proper judgment in a moot case,” the Supreme Court said, “is one of dismissal for lack of jurisdiction”—regardless of whether the case is on appeal or still in the trial court—which the Court ruled is the disposition the court of appeals should have reached in this case. 

The Court explained that the “capable-of-repetition-yet-evading-review exception” also did not allow the court of appeals to proceed to the merits. That exception, the Supreme Court said, “applies only in rare circumstances.” Specifically, “a plaintiff must prove that ‘(1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again.’” The Court rejected application of that doctrine where, as here, the identical question is capable of repetition, even likely to be repeated, but involving other persons. 

Prior Cash Deposit Fulfills the Purpose of a Supersedeas Bond

Harris v. Covey

Dallas Court of Appeals, No. 05-24-01291-CV

Justices Goldstein (opinion available here), Garcia, and Clinton

Kelli Hinson

After a justice court rendered judgment against Harris in a breach-of-contract suit, Harris appealed to the county court and deposited $7,838.93 in lieu of a bond pursuant to TRCP 506.1. Under that rule, “a judgment debtor may appeal by depositing cash in lieu of an appeal bond that is ‘payable to the appellee’ and is ‘conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal.’” Following a trial de novo, the county court also rendered judgment against Harris, awarding Covey $3,919.46 in damages, $14,000 in attorney’s fees, interest, and costs of court. Harris appealed again but did not file a supersedeas bond to suspend enforcement of the judgment.

Attempting to stave off post-judgment discovery, Harris filed a motion to stay in the appellate court. Covey objected, arguing Harris had failed to supersede the judgment. Under TRAP 24, a judgment debtor may supersede a money judgment by depositing with the trial court clerk cash in lieu of bond in an amount equal to the sum of compensatory damages and costs awarded as well as interest for the estimated duration of the appeal. Attorneys’ fee awards do not need to be superseded. 

Harris argued that, even though she had not literally superseded the judgment, “the purpose of a supersedeas bond has been fulfilled” by the cash she deposited to appeal from justice court to county court. The Dallas Court of Appeals agreed, concluding that the cash deposit rule, TRCP 506.1, and the supersedeas rule, TRAP 24, served the same purpose of ensuring the judgment creditor is paid if the appeal is resolved in the judgment creditor’s favor. It therefore granted Harris’s motion to stay. 

Summary Judgment Evidence Need Not Be Attached to Summary Judgment Response

State v. $3,774.28 U.S. Currency

Supreme Court of Texas, Nos. 24-0258 (May 16, 2025)

Opinion by Justice Lehrmann (linked here)

Ken Carroll

The Supreme Court of Texas holds that a party opposing a no-evidence motion for summary judgment need not actually attach to its MSJ response controverting evidence that is already contained in the record, as long as the response specifically points out and discusses that evidence. 

In a civil-forfeiture action growing out of alleged opioid trafficking, the owners of the funds at issue filed a no-evidence summary judgment motion against the State. The State submitted a short response that attached no controverting evidence but that referenced and discussed a 44-page affidavit that had been filed with the Notice of Seizure and Intended Forfeiture that commenced the case. The trial court granted summary judgment, saying it “could not consider the affidavit as summary judgment evidence because it understood the rules to require that the nonmovant attach its evidence to the initial response for the trial court’s consideration.” The court of appeals agreed. 

The Supreme Court did not. The Court noted that TRCP 166a(i) “requires a nonmovant to ‘produce’ evidence, not ‘attach’ it,” in responding to a no-evidence MSJ. Further, the comment to that rule“ explains that the nonmovant ‘need only point out’ the evidence that raises a fact issue.” The Supreme Court therefore held that “a response to a no-evidence motion for summary judgment that discusses and calls the court’s attention to evidence already in the court’s record ‘points out’ and thus ‘produces’ that evidence,” as required by Rule 166a(i), and that a trial court abuses its discretion by not considering such evidence. Because the State’s response sufficiently “pointed out” the controverting affidavit that was already in the trial court’s file, the Court reversed and vacated the summary judgment.

SCOTx: A Motion for Sanctions Is Not a “Legal Action” Subject to the TCPA

Ferchichi v. Whataburger Restaurants LLC

Supreme Court of Texas, Nos. 23-0568 & 23-0993 (May 9, 2025) 

Opinion by Justice Lehrmann (linked here)

Ken Carroll

Resolving a disagreement among the State’s courts of appeals, the Supreme Court of Texas holds that “a motion to compel and for sanctions does not present a substantive underlying claim for relief and therefore is not a ‘legal action’ subject to dismissal under the TCPA.” 

Under the TCPA, a party may move to dismiss a “legal action” that “is based on or is in response to” a TCPA-protected right or that “arises from” certain protected communications or conduct. TCPRC § 27.003(a). “The TCPA defines ‘legal action’ as ‘a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.’” Id. § 27.001(6). 

The Supreme Court acknowledged that the catch-all phrase at the end of § 27.001(6)—“any other judicial pleading or filing that requests legal, declaratory, or equitable relief”—is  “undeniably broad.” “But,” the Court said, “broad is not limitless.”

Applying the doctrine of ejusdem generis—i.e., that “when ‘more specific items are followed by a catchall “other,” ... the latter must be limited to things like the former’”—the Court concluded that “the catch-all phrase … should be limited to filings that are ‘like’” the specific items listed in the statute—“a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.” It  explained that the specifically enumerated filings “are connected by their function of commencing (or materially amending) a proceeding on a substantive legal claim—e.g., negligence, fraud, or deceptive trade practices—against another party.” By contrast, the Court said, motions to compel and for sanctions “are not remotely ‘like’ a ‘lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim.’ Rather, they are ‘based on conduct ancillary to the substantive claims in the case’ and cannot stand on their own.” The fact that motions for sanctions seek monetary relief does not alter that analysis. Consequently, the Supreme Court held, a “motion to compel and for sanctions … is not a ‘legal action’ subject to dismissal under the TCPA.”  

SCOTx: Trial Court Can Reconsider and Grant TCPA Motion to Dismiss after that Motion Has Been Denied by Operation of Law

First Sabrepoint Capital Management, L.P. v. Farmland Partners Inc. 

Supreme Court of Texas, No. 23-0634 (April 24, 2025) 

Opinion by Justice Huddle (linked here)

Ken Carroll

Applying and extending its ruling in In re Panchakarla, 602 S.W.3d 536 (Tex. 2020), the Supreme Court of Texas holds that a trial court retains jurisdiction to grant a motion to dismiss under the TCPA even after that motion has been denied by operation of law, per statute.

Sabrepoint moved to dismiss Farmland’s claims under the TCPA, which requires the trial court to rule not later than 30 days after the hearing on such a motion. TCPRC § 27.005(a). The trial court didn’t rule before the 30-day deadline expired, and so the motion was deemed to have been denied by operation of law pursuant to TCPRC § 27.008(a). Five days after that deadline, however, the trial court issued an order granting the TCPA motion to dismiss. Farmland appealed, and the court of appeals held the trial court’s order granting the TCPA motion was void because it was issued after the statutory deadline and after the motion was deemed to have been denied by operation of law. TCPRC §§ 27.005(a) & .008(a). 

The Supreme Court disagreed, however. Referencing its decision in Panchakarla, the Court explained that “the expiration of the deadline for a trial court to rule on a TCPA motion does not extinguish the court’s plenary power to later reconsider that ruling.” And the text of TCPRC § 27.008(a), providing that motions not ruled on within 30 days after hearing are denied by operation of law, does not change that. The Court noted that when the trial court issued its order granting Sabrepoint’s TCPA motion, five days after the deadline, no appeal had been taken and there was no final judgment. “Under those circumstances,” the Court said, “nothing in the TCPA extinguished the trial court’s plenary power to reconsider the TCPA motion’s merits”—which, in practical effect, is what happened here. The Supreme Court therefore reversed and remanded for the court of appeals to reconsider the TCPA dismissal on the merits.  

Can a Defendant Appeal When the Trial Court Orally Denies a TCPA Motion to Dismiss, But Doesn’t Sign an Order?

Eichner v. Ocwen Financial Corp.

Dallas Court of Appeals, No. 05-23-00623-CV (February 27, 2025)

Justices Goldstein, Kennedy (Opinion, linked here), and Clinton

Ken Carroll

Adding to an existing split among Texas Courts of Appeals, the Dallas Court holds that when a trial court orally denies a TCPA motion to dismiss but never signs an order to that effect, the movant can appeal, treating the motion as having been overruled by operation of law. 

Ocwen and others sued Eichner, alleging he had breached an employment separation agreement and release. Eichner moved to dismiss under the TCPA. The trial court held a timely hearing, as required by TCPA § 27.004, at which it orally denied Eichner’s motion to dismiss. But the trial court never signed an order denying the motion to dismiss. 

Eichner appealed. Ocwen moved to dismiss, arguing TCPRC § 51.014(a)(12) authorizes an interlocutory appeal only from an “order … that … denies a motion to dismiss filed under [the TCPA],” and that Eichner could not appeal because the trial court had issued no such “order” in this case. 

Despite the wording of § 51.014(a)(12), the Dallas Court of Appeals denied Ocwen’s motion to dismiss and held that Eichner could appeal. The Court noted that, while a party ordinarily may bring an interlocutory appeal only from a written order, TCPA § 27.008(a) provides an exception to that rule: “If a court does not rule on a [TCPA] motion to dismiss … in the time prescribed by [TCPA § 27.005], the motion is considered to have been denied by operation of law and the moving party may appeal.” The Dallas Court went on to hold that “by not signing a written order the trial judge did not ‘rule’ on Eichner’s motion to dismiss within the meaning of [TCPA §] 27.008(a), which means that the motion was overruled by operation of law, and that [there is] appellate jurisdiction under [TCPA §] 27.008(a).” 

In so ruling, Dallas followed the Fourteenth Court, which had explained that, “The purpose of the TCPA is to encourage and safeguard constitutional rights [and t]hat purpose would be thwarted if a trial court could insulate its decision from appellate review by refusing to sign a written order and choosing instead to orally deny a motion that should have been granted.” Simmons v. Taylor, 651 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2022, no pet.). The Dallas Court rejected decisions by the Houston 1st District and Beaumont Courts of Appeals, which had held to the contrary. Casillas v. M & S Concrete, No. 01-19-00145-CV, 2020 WL 2026367, at *3-4 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.); Clark v. Paddington British Priv. Sch., Inc., No. 09-19-00056-CV, 2016 WL 4247963, at *2-3 (Tex. App.—Beaumont Aug. 11, 2016, no pet.).

Res Judicata Bars Dec Action Asserting Limitations to Prevent Foreclosure

Castaneda v. Abacus Funding Group, LLC

Dallas Court of Appeals, No. 05-23-00623-CV (February 4, 2025)

Justices Smith, Miskel (Opinion, linked here), and Breedlove

Ken Carroll

A cautionary tale about the scope of res judicata: Final judgment on the merits bars not just claims actually litigated, but also other claims arising from the same transaction or subject matter that were not asserted but could have been. And that’s true even with respect to a claim for declaratory relief that anticipates an affirmative defense.

The Castanedas purchased a house in 1997 using seller-financing. In 2018, a dispute arose about the mortgage; the Castanedas believed it was paid off, but the sellers contended a significant balance remained unpaid. With that dispute unresolved, the sellers sold the mortgage to Abacus. Abacus then sent the Castanedas a notice of non-judicial foreclosure. The Castanedas responded by suing the sellers and Abacus, arguing generally that the loan was paid in full and asserting that Abacus had committed statutory real estate fraud by sending them a proposed “Modification and Extension Agreement” even though it knew, or should have known, that they had already paid the note in full. Abacus secured a summary judgment denying the Castanedas’ statutory fraud claim against it, as well as an order severing Abacus from the remainder of the case, resulting in a final take-nothing judgment for Abacus. 

Abacus then served the Castanedas with another notice of non-judicial foreclosure. Again, the Castanedas filed a declaratory judgment action to prevent the foreclosure, arguing both that the note was paid in full—as they had in the first lawsuit—and, for the first time, that limitations barred Abacus from enforcing the mortgage lien. Abacus responded with another summary judgment motion, arguing that the Castanedas’ declaratory claims were barred by res judicata, based on the first judgment. The trial court granted that motion, and the Dallas Court of Appeals affirmed. 

The Castanedas argued that res judicata could not bar their claim for declaratory relief based on limitations, which they had not asserted in the first lawsuit. The Court of Appeals disagreed, explaining that “Texas follows the transactional approach to res judicata, under which ‘a subsequent suit is barred if it arises out of the same subject matter as the prior suit, and that subject matter could have been litigated in the prior suit,’” quoting Citizens Ins. Co. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). “[A] final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose,” regardless of the specific claims asserted in either case. The appeals court concluded that the “First and Second Lawsuits arise out of the same facts and are based on the same subject matter,” and that “the Castanedas could have asserted their limitations claim in the First Lawsuit.” It rejected the Castanedas’ argument that they should not be expected to have “preemptively file[d] an affirmative defense of limitations” to a claim that Abacus had not yet asserted. But, of course, they did just that in the second lawsuit—filing suit and asserting their claim for declaratory relief based on limitations before Abacus filed any counterclaim of its own. 

SCOTx: Separation of Powers Bars Disciplinary Commission’s “Collateral” Review of Attorney Conduct by AG’s Office

Webster v. Commission for Lawyer Discipline

Supreme Court of Texas, No. 23-0694 (December 31, 2024) 

Opinion by Justice Young (linked here); Dissent by Justice Boyd (linked here)

Ken Carroll

Unwilling to abide the results of the 2020 presidential election, the State of Texas tried to invoke the original jurisdiction of the United States Supreme Court to challenge the election processes and results in Pennsylvania, Georgia, Michigan, and Wisconsin. The bill of complaint and other filings were signed by Ken Paxton as Texas Attorney General and also listed Brent Webster, his First Assistant, as counsel of record.

Four days after Texas filed, the Supreme Court dismissed for lack of standing. Soon thereafter, various individuals filed grievances against Paxton and Webster with the Commission for Lawyer Discipline, alleging they had violated Disciplinary Rule 8.04(a)(3)—which prohibits Texas lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation”—by making false statements in the Supreme Court filings. The Commission then filed a disciplinary petition against Webster in state district court in Williamson County. Webster responded with a plea to the jurisdiction, arguing the Commission’s petition was barred by the separation-of-powers doctrine and by sovereign immunity. The district court ruled that separation of powers deprived it of subject-matter jurisdiction, but the El Paso Court of Appeals (to which the case had been transferred for docket-equalization purposes) reversed. 

The Supreme Court, however, agreed with the trial court and ordered the case dismissed for lack of jurisdiction. “The separation-of-powers problem in this case involves two specific powers, both of which are valid,” the Court said: “[1] the judiciary’s authority to regulate the practice of law and [2] the attorney general’s exclusive authority to determine the arguments and assess the evidence that warrant bringing suit on behalf of the State.” Seeking to reconcile these competing powers, the Court drew a distinction between review and sanctions by a court in which alleged misrepresentations are made—what the Court characterized as “direct scrutiny”—and a challenge by the Commission in a separate proceeding and a different court—which the Court labeled “purely collateral review.” The Court held that in “the narrow circumstances before [it],” attacks on allegations in initial pleadings, “direct scrutiny by a court to whom representations are made wholly accommodates the legitimate interests of all branches of government,” while “collateral attacks like the Commission’s lawsuit … would improperly invade the executive branch’s prerogatives and risk the politicization and thus the independence of the judiciary.” 

Justice Boyd, joined by Justice Lehrmann, dissented. While the “disciplinary proceeding against … Webster could easily fail for many reasons,” Justice Boyd said, “separation of powers is not one of them.” He argued the majority’s “freshly minted direct/collateral distinction is unheard of in separation-of-powers jurisprudence” and “lacks both legal support and logical sense.” “If the United States Supreme Court had decided to sanction Webster for filing the pleading at issue here (as the [majority] concedes it could have done without violating the separation of powers),” Justice Boyd explained, “its actions would have interfered with Webster’s attempt to discharge his duties at least as significantly as this ‘collateral’ disciplinary proceeding.”

On a related note, a parallel disciplinary proceeding against Paxton is pending review before the Texas Supreme Court on similar issues. Paxton v. Commission for Lawyer Discipline, No. 24-0452 (Tex.). It’s a fair bet that matter will soon be summarily disposed of in the same manner as the Webster case.