BOM Watch
Summaries of recent BOM requests.
The U.S. Supreme Court’s certiorari process is largely shrouded in mystery, and whether the Court will grant cert on any given petition is mostly a guessing game. But “relists” are one way to make those guesses a bit more informed. If the Court relists a case for conference, the thinking goes, then the Court is paying close attention to that case and the likelihood of granting cert increases. Students of the U.S. Supreme Court have therefore become familiar with John Elwood’s relist watch on SCOTUSBlog.
Our goal is to do something similar for the Supreme Court of Texas. Granted, SCOTX does not publicly indicate which cases are on its monthly conference agendas, so we have no way of knowing whether a case has been “relisted,” so to speak. But there are other ways to tell whether the Court is interested in a particular case. One way is to see if the Court has requested a response to a petition. If so, then we know that at least one justice thinks there may be something worth investigating further about the case.
But an even surer way, in our view, is to see which cases have requests for briefs on the merits—the step that follows a request for a response. That is because, unlike the U.S. Supreme Court, the Texas Supreme Court will typically order briefing on the merits even before it decides to grant the petition for review.
Ordering briefs on the merits (which requires 3 votes) does not just result in three additional (and longer) briefs—it also triggers an internal court procedure. After the merits briefs have been submitted, the full record of the case is then forwarded to the Court and a law clerk working for one of the justices will prepare a “study memo” addressing the merits of the issues, the petition’s grant-worthiness, and its vehicle issues (if any).
Once the Court requests briefs on the merits, the likelihood of the petition being granted is relatively high—statistically, about 33%. And this simple piece of information—whether the Court has requested briefs on the merits—could be useful for SCOTX practitioners, much like relist watch is for SCOTUS practitioners.
So we have decided to start reviewing the cases where the Court has requested briefs on the merits (or “BOMs”) and summarize the issues presented in each in a paragraph or so. At least to start, we are calling this “BOM Watch.” And we will aim to write these articles on a regular basis.
Without further ado, we summarize the BOMs that have so far been requested since December 1st of last year.
BOM Watch December 2024 – January 2025
24-0040, Rush Truck Centers v. Sayre
A school bus struck and killed a child in Parker County, Texas. The parents of the child sued the seller of the bus, Rush Truck, in Dallas County under a products-liability theory. Rush Truck moved to transfer venue to Parker County (where the accident happened) or, alternatively, Comal County (where Rush Truck is headquartered). The question presented is whether, in a products-liability suit, venue is proper in the county in which the seller supplied, inspected, and paid for the product, such that a “substantial part of the events or omissions” occurred there under the general venue statute.
24-0350, In re Ellard
A woman died in a plane crash. The Bank of Texas, as the succeeding independent executor of the woman’s estate, hired a personal-injury firm to assert survival claims against the airplane’s operators. The bank hired the law firm on a contingency-fee basis, entitling the law firm to 40% of the recovery. A sister of the decedent sued the Bank in probate court, arguing that the bank improperly conveyed a contingent interest in the property recovered in excess of one-third of the property, in violation of section 351.152 of the Texas Estates Code, which requires court approval of any contingency-fee contract that conveys more than one-third interest. The question presented is whether the probate court properly ratified the contingency-fee contract between the bank and the law firm.
24-0353, South Plains Sno v. Eskimo Hut Worldwide, Ltd.
South Plains Sno operates three Eskimo Hut franchises in Lubbock, Texas, under a franchise agreement with Eskimo Hut Worldwide. South Plains has a TABC permit to sell alcoholic drinks, but Eskimo Hut Worldwide does not. The dispute between the two arose when Eskimo Hut Worldwide asserted a right under the franchise agreement to control which alcoholic drinks South Plains Sno could sell and what ingredients it had to use for its drinks. The question presented is whether the Alcoholic Beverage Code permits a non-permittee franchisor to control the sale of alcoholic drinks of a permitted franchisee.
24-0418, City of Dallas v. Ahrens
In 2016, a gunman opened fire during a large demonstration in Dallas, Texas, killing five police officers. Following their deaths, many public supporters mailed cards, gifts, and donations to the police department. A wife of one of the fallen officers sued the city, alleging that it negligently handled the mail and failed to deliver the donations to the families for which they were intended. The city filed a plea to the jurisdiction, asserting governmental immunity. The question presented is whether the city’s handling of the mail is a “governmental function” and therefore an action entitled to immunity.
24-0447, Texas v. JRJ Pusok Holdings, LLC
Chapter 21 of the Texas Property Code allows former owners of land acquired through eminent domain to reacquire their land if, within ten years of acquisition, it is no longer needed for public use. The State condemned Respondents’ land back in 2013. The parties eventually settled the lawsuit, and the State’s petition was dismissed. Years later, Respondents sought to reacquire some of their land through Chapter 21. The case presents two questions. First, whether land (like Respondent’s) acquired through a settlement agreement qualifies as acquired through eminent domain. Second, whether Chapter 21 waives sovereign immunity.
24-0494, In re Brenham Nursing and Rehabilitation Center
Harold Edward Herrin, a resident of Brenham Nursing and Rehabilitation Center, contracted COVID-19 and later died. His family sued the facility, alleging negligent care caused his exposure and death. The nursing home invoked the defense provided under Texas’s Pandemic Liability Protection Act (PLPA), which shields health care providers from liability for ordinary negligence if they meet specific procedural requirements. The plaintiffs moved to strike the defense, arguing the facility failed to provide the required “specific facts” within the statutory deadline. The trial court sided with the plaintiffs and struck the defense, prompting the facility to file a petition for writ of mandamus. The case presents two principal legal questions. First, whether Petitioners have an adequate remedy by way of direct appeal, which would preclude mandamus relief. Second, whether the deadline for presenting a PLPA defense is mandatory or merely directory.
24-0516, Platinum Construction v. Copper Creek Distributors
Petitioner Platinum Construction alleges that three of its managers caused Platinum employees to work for a different company while on the clock for Platinum. Platinum sued for theft of services, tortious interference, and unjust enrichment. The trial court found that Respondents had engaged in spoilation, culpably failing to preserve key emails and accounting records. At trial Respondents relied on the lack of accounting records to show the quantum of harm. But the trial court issued a spoilation instruction, telling the jury that it should presume that missing evidence would have been unfavorable to Respondents. The Court of Appeals reversed, holding that the spoliation instruction was unfairly prejudicial, and the trial should have considered less serious sanctions first. Petitioners present multiple issues that generally invite the Court to weigh in on when spoilation instructions are warranted—a topic they say the Court has not discussed in over a decade.
24-0684, Nguyen v. The Quoc Trinh
Petitioners allege that Respondent solicited donations from them to fund the “Cao Dai Temple of Houston.” But Petitioners allege that Respondent never intended to use the funds to build a Cao Dai temple, but rather used the funds for personal purposes and to fund a “Holy Mother Temple”—in other words to promote a different religion. The trial court dismissed their claims for lack of jurisdiction and the Fourteenth Court affirmed in part. Invoking on its own precedent, the Fourteenth Court reasoned that the gifts had no express conditions, and that parties generally have no standing to sue to allege that religious or charitable organizations have misused funds. However, the Court held that one of the Petitioners adequately pled a breach of contract claim. This case offers the Court a chance to clarify whether and under what circumstances donors can sue for fraud if they are allegedly misled about how the funds will be used.