In this edition of Litigation Roundup, the Fifth Circuit sends a certified question about judges refusing to perform same-sex marriages to the Texas Supreme Court, Tesla hires Jackson Walker to defend against a workplace death lawsuit, and we take a look at three petitions for writ of mandamus the state’s high court recently granted.
The Litigation Roundup is a weekly feature highlighting the work Texas lawyers are doing inside and outside the state. Have a development we should include next week? Please let us know at tlblitigation@texaslawbook.net.
Tarrant County District Court
Winston & Strawn, Charla Aldous Team Up in Child Sex Abuse Suit
Two parents, identified as Jane and John Doe, have filed a lawsuit against Trinity Valley School and its board of trustees over the alleged repeated sexual abuse of at least 16 minor children “by a serial pedophile.”
The parents filed the 32-page lawsuit March 26, alleging the school’s former piano teacher, Trent Muse (who was arrested in June 2024 on five charges of indecency with children), was permitted to sexually abuse the children in part because of the school’s “negligent and utterly inadequate protocols for preventing, detecting, and addressing such behavior and protecting the young children under their care.”
In his position with the school, according to the lawsuit, Muse gave one-on-one piano lessons to children between the ages of 6 and 11. The parents allege that school personnel “intentionally disregarded and ignored red flags and failed to take proper steps to address them.”
“When one family directly reported Muse’s misconduct to Trinity Valley, the school did not take adequate steps to address this misconduct or even communicate to parents of piano students what had happened,” the suit alleges. “Instead, Trinity Valley concealed the misconduct from piano students’ families and lied to them about it repeatedly. For example, the school fired Muse, knowing he had engaged in inappropriate and illegal conduct, but then knowingly concealed that fact from the parents, telling them that Muse had left merely for ‘personal reasons.’”
Trinity did report Muse to the state’s child protective services department, according to the lawsuit, but concealed that from parents. The lawsuit alleges Muse assaulted the children during an eight-month period in the 2022-2023 school year in his “small and secluded classroom.”
Trinity board members are accused of “conspiring to silence anyone who tried to discover the full extent of Muse’s misconduct,” including by telling its teachers they would be fired for discussing Muse with parents. The parents allege the school placed concern for its reputation above the well-being of its students.
The Does are represented by Natalie L. Arbaugh, Thomas M. Melsheimer and Robert Larkin of Winson & Strawn and Charla G. Aldous and Eleanor Aldous of Aldous Law.
The case number is 153-363131-25.
Harris County District Court
Tesla Hires Jackson Walker to Defend Electrician’s Death Suit
Tesla and two other defendants facing a wrongful death lawsuit over the death of an electrician at the company’s Gigafactory in Austin filed paperwork with the court on Monday denying any wrongdoing.
The lawsuit is seeking more than $1 million in damages and was filed by the family of Victor Joe Gomez Sr. in Harris County on March 11. Tesla, Vertiv Corporation and Colorado River Project each filed answers Monday denying wrongdoing and indicated to the court they would also be seeking a change in venue.
Gomez was killed Aug. 1, 2024. In answers filed Monday, Tesla and Colorado River Project told the court Gomez’ death was, at least in part, the result of his own “failure to exercise ordinary care.”
Tesla and Colorado River Project also argued the lawsuit’s factual allegations — which span just two sentences — weren’t specific enough about their alleged actions or inactions to survive an early dismissal bid.
“As written, these allegations fail to provide Tesla with the facts supporting the various claims asserted against Tesla as opposed to the other named defendants,” the company wrote. “This paragraph fails to identify the source of any duty Tesla owed to plaintiffs nor does it provide a plain and concise statement of how Tesla’s conduct, as opposed to the conduct of the other named defendants, allegedly caused plaintiffs injuries.”
Records from the Occupational Safety and Health Administration reflect that, after an investigation into the fatal incident, Tesla was issued three “serious” fines, totaling $49,650 for safety violations that took place at the Austin Gigafactory Aug. 1, 2024. Those violations are for:
- Allowing an employee to perform an inspection on an uninterrupted power supply cabinet without it being de-energized
- Allowing an employee to work in close proximity to energized parts without wearing appropriate personal protective equipment
- Allowing employees to be exposed to electrical hazards while performing tests and inspections on newly-installed electrical equipment without performing a hazard analysis or posting signs or communicating safety procedures.
Tesla and the Colorado River Project are represented by Joshua A. Romero, Sean F. Gallagher, Connor A. Kidd and Chevazz G. Brown of Jackson Walker.
Vertiv Corporation is represented by Christine Kirchner, Michael Feibus, Jared Douthit of Chamberlain, Hrdlicka, White, Williams & Aughtry and Marc J. Kessler and Jonathan Olivito of Taft Stettinius & Hollister.
The Gomez family is represented by Jason A. Itkin, Cory D. Itkin and Alexandra F. Poulson of Arnold & Itkin.
The case number is 2015-16741.
Houston Texans Sued by Season Ticket Holders
A group of 17 season ticket holders have filed suit against the Houston Texans and the Harris County-Houston Sports Authority, seeking more than $1 million in damages for what they allege is an unlawful increase in prices charged to returning season ticket owners.
The plaintiffs, who all hold permanent seat licenses that afford them the “right and obligation” to purchase season tickets, allege the team is allotting them fewer tickets and also charging them “more than what they charge other returning season ticket owners.”
“By monopolizing ticket inventory and eliminating competition, the Texans are greatly inflating ticket prices and setting new and higher price floors, leaving fans with fewer options to purchase tickets and forcing them to pay higher prices for those tickets,” the lawsuit alleges. “This outrageous and unacceptable behavior doesn’t just harm the plaintiffs — it harms hundreds of thousands of Texans’ fans, and every sports fan in Texas who wants to attend an NFL game at NRG Stadium.”
The 18-page lawsuit, filed March 31, brings claims for violations of the Texas Free Enterprise Act of 1983, breach of contract, promissory estoppel, fraud and fraudulent inducement, tortious interference with contract, civil conspiracy and seeks a declaratory judgment that the Texans “are required to charge all tenured [permanent seat licenses] season ticket owners who have similarly situated seats the same amount for season tickets, just as the Texans have been doing for the last 22 seasons.”
The PSL holders bringing this suit resell their tickets on websites like Ticketmaster and StubHub, according to the suit, and allege the Texans are discriminating against them by charging them 10 percent more for season tickets than other PSL holders.
“These discriminatory pricing practices contradict more than two decades of the Texans’ prior representations, conduct, and dealings with the plaintiffs,” the suit alleges. “Since 2002 and continuing through 2023, the Texans actively encouraged plaintiffs to purchase additional PSLs year in and year out for more than two decades. Team representatives routinely contacted plaintiffs to solicit them to purchase more tickets.”
The plaintiffs allege they’ve been targeted for selling “too many tickets on the secondary market.”
The case has been assigned to Harris County District Judge Bruce W. Bain.
The plaintiffs are represented by Josh N. Bowlin and Brittany N. Schuchmann of Callender Bowlin in Houston.
Counsel for the defendants had not filed an appearance as of Monday.
The case number is 2025-21940.
Texas Supreme Court
Three Petitions for Writ of Mandamus Granted
In its list of orders issued Friday, the Texas Supreme Court granted three petitions for writ of mandamus and will be setting the cases for oral argument soon, a rarity for the state’s high court.
Here’s a rundown of each case:
In Re Greystar Development & Construction et al.
In this appeal, stemming from an $860 million jury verdict issued by a Dallas County jury in a fatal crane collapse case, the issue is how much defendants are required to post as a supersedeas bond in order to prevent enforcement of a judgment while that judgment is being appealed.
Greystar Development & Construction, Greystar Development & Construction, LP–Gabriella Tower Contractor Series, and Gabriella Tower are jointly and severally liable for damages of $360 million and prejudgment interest of about $45 million, according to court records.
In February 2024, the Greystar parties filed an emergency motion for temporary relief, asking for a stay that would prevent immediate collection of the judgment while the appellate court reviewed the supersedeas bond order issued in the case.
On April 10, 2024, the Fifth Court of Appeals determined that three Greystar entities that wanted to appeal the judgment must each post a $25 million bond, rejecting the companies’ arguments that their joint posting of a $25 million supersedeas bond was sufficient.
The appellate court ruling — issued by Justices Ken Molberg, Cory Carlyle and Maricela Moore Breedlove — affirmed the ruling of Dallas County Court at Law No. 2 Judge Melissa Jean Bellan.
“At the heart of judgment debtors’ motion is their contention that the $25 million cap in § 52.006 of the Texas Civil Practice and Remedies Code applies per judgment,” the panel wrote. “Because we conclude that the statutory cap applies per judgment debtor, not per judgment, and for the other reasons set forth below, we deny the motion and affirm the trial court’s bond ruling.”
Greystar then filed a petition for writ of mandamus with the Texas Supreme Court on April 15, 2024.
“The trial court’s bond order invalidating a $25 million supersedeas bond as to two of three Greystar entities and requiring them to ‘immediately’ file two additional bonds to prevent instantaneous enforcement of the $406 million judgment contravenes the text, structure, and purpose of Chapter 52 of the Civil Practice and Remedies Code.”
Williams is represented by Jason A. Itkin, Andrew R. Gould, Cory D. Itkin and Parker J. Cragg of Arnold & Itkin, Jeffrey Levinger of Levinger PC and Michael P. Lyons, Christopher J. Simmons and P. Wes Black of Lyons & Simmons.
Greystar is represented by Wallace B. Jefferson, William J. Boyce and Rachel A. Ekery of Alexander Dubose & Jefferson, Anne M. Johnson of Tillotson Johnson & Patton and Ben L. Mesches and Ryan Paulsen of Haynes Boone.
The case number is 24-0293.
In Re Adeel Zaidi et al.
In a case that’s been litigated since January 2009, a consulting company and its two principals are trying to undo a trial court’s July 2023 order disqualifying their counsel in a breach of contract and misappropriation lawsuit involving the purchase and conversion of a hospital into a long-term acute care facility.
Prestige Consulting, Adeel Zaidi and A.K. Chagla argue Harris County District Judge Fredericka Phillips got it wrong when she granted Apex Katy Physicians’ motion to disqualify its counsel based on an alleged “side-switching non-lawyer,” paralegal Felicia O’Loughlin.
O’Loughlin worked at Munsch Hardt from 2009 to 2011 and then joined Hicks Thomas before that firm represented the defendants, Prestige Consulting, in the underlying case. According to court records, O’Loughlin worked on this case at Hicks Thomas between March 2017 and March 2022.
Apex Katy Physicians’ lawyers notified Hicks Thomas lawyer Robin Harrison in Feb. 2023 that they believed O’Loughlin had also worked on the case when she was at Munsch Hardt and was now working “against her former client.”
Prestige Consulting argues on appeal that Apex Katy Physicians waited more than a year after knowing of O’Loughlin’s involvement to move for disqualification, which should be considered a waiver of its right to seek disqualification.
Apex Katy Physicians said the case clearly mandates Hicks Thomas’ disqualification, because “the law on side-switching paralegals is well-established.”
“Since 1994, the Court has consistently applied a series of per se rules governing side-switching paralegals. As explained below, these rules have only grown stricter over time,” Apex told the court. “This case does not present any reason for the Court to change the law and weaken protections for former clients.”
Prestige Consulting and the individual defendants are represented by Robin Harrison, Stephen Barrick, Katherine Kunz and Stacie Osborn of Hicks Thomas.
Apex is represented by Andrew K. Meade, Holly H. Barnes and Samuel B. Haren of Meade Neese & Barr.
The case number is 24-0245.
In Re UMTH General Services et al.
In this case, the court will have to determine whether a group of shareholders’ claims are direct or derivative in nature, which will determine whether the litigation that pits NexPoint Diversified Real Estate Trust against officers, trustees, managers and advisors of publicly traded Maryland real estate investment trust United Development Funding IV.
NexPoint filed suit in August 2022 against the UDF advisor, UMTH General Services and related entities, alleging that since 2010, the group has “operated a Ponzi scheme under the guise of a multitude of ‘investment fund’ entities called ‘United Development Funding.’”
The entities were supposed to make high-interest loans to developments and pay monthly dividends to investors from the interest, but NexPoint alleges that “in reality,” funds received from new investors were used to pay “fake dividends to older investors.” The suit also accuses UMTH of paying itself “tens of millions of dollars in management and transaction fees.”
After Dallas County District Judge Maria Aceves and the Fifth Court of Appeals rejected UMTH’s arguments as to why the suit should be dismissed, it appealed to the Texas Supreme Court in January 2024.
UMTH told the court in its petition that it’s a “bedrock commercial principle” in Texas law that “individual stockholders have no separate and independent right of action for injuries suffered by the corporation which merely result in the depreciation of the value of their stock.”
“This lawsuit flouts that settled law,” UMTH argued. “[NexPoint] brought this suit for individual recovery of textbook collective shareholder harms, claiming more than $60 million in harm to UDF IV.”
NexPoint argued in response that there is no error to correct and that the lower courts correctly saw its claims for what they are “direct, not derivative.”
“Relators’ petition (as well as the underlying plea in abatement, special exceptions, and plea to the jurisdiction) turn entirely on relators’ incorrect assertion that NexPoint’s claims are derivative because NexPoint is a ‘shareholder’ of non-party UDF IV,” NexPoint told the court. “NexPoint, however, has not asserted claims on UDF IV’s behalf. NexPoint has asserted claims against relators for breaches of fiduciary and contractual duties that relators owed NexPoint individually under the advisory agreement.”
UMTH is represented by Pete Marketos, Joel Reese, Tyler J. Bexley and Kendal C. Simpson of Reese Marketos and Leah F. Bower of Lehotsky Keller Cohn.
NexPoint is represented by Jeff Tillotson, Anne M. Johnson, Jonathan R. Patton and Stephani A. Michel of Tillotson Johnson & Patton.
The case number is 24-0024.
U.S. Court of Appeals for the Fifth Circuit
Certified Question on Judges Refusing to Perform Same-Sex Marriages
On Friday, a three-judge panel of the Fifth Circuit sent a certified question to the Texas Supreme Court asking whether the state’s judicial code of conduct prohibits judges from refusing to perform same-sex marriages.
In the underlying case, Jack County Judge Brian Keith Umphress has filed a federal lawsuit against the State Commission on Judicial Conduct, alleging it has unconstitutionally applied Canon 4A(1) of the Texas Code of Judicial Conduct. That canon requires judges “to conduct their extra-judicial activities in a manner that does not call into question their impartiality.”
Umphress alleges the commission’s application of that rule to a judge who refuses to perform same-sex marriages, as he does, is unconstitutional. The Fifth Circuit explained in a 21-page per curiam opinion that Umphress’ lawsuit “raises a threshold issue of state law for which there is no controlling precedent,” meaning guidance from the Texas Supreme Court is needed.
The question is:
Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?
Umphress filed his notice of appeal to the Fifth Circuit in December 2020 after U.S. District Judge Mark Pittman dismissed his suit for lack of standing.
The court heard oral argument in July 2021 and the docket reflects the case sat stagnant until Umphress filed supplemental briefing almost two years later, in June 2023.
In October 2024, the court requested supplemental briefing on four issues, including whether the Texas Supreme Court’s 2024 decision in Hensley v. State Commission on Judicial Conduct or the State Commission on Judicial Conduct’s withdrawal of the public warning against Hensley had an impact on the court’s ability to hear this appeal.
In Hensley, the Texas Supreme Court determined 8-1 that Dianne Hensley, a justice of the peace in Waco who was sanctioned by the State Commission on Judicial Conduct for her refusal to perform same-sex marriages, could proceed with her lawsuit against the commission, rejecting arguments that either her failure to appeal the Commission’s public warning, or sovereign immunity, barred the action.
The ruling spurred two concurring opinions and one dissenting opinion. Justice Debra Lehrmann wrote she would have upheld the trial court’s decision dismissing Hensley’s suit based on her failure to exhaust her administrative remedies by appealing the public warning to the Special Court of Review.
Hensley’s case is currently pending in state court.
Judges Jerry E. Smith, Priscilla Richman, and James E. Graves Jr. sat on the panel.
Umphress is represented by the former solicitor general of Texas, Jonathan F. Mitchell, and by Charles Fillmore and Hartson Fillmore III of Fillmore Law Firm.
Hall is represented by Douglas Lang of Thompson Coburn, Roland K. Johnson of Harris, Finley & Bogle, Ross Reyes of Littler Mendelson and David R. Schleicher of Schleicher Law Firm.
The case number is 20-11216.
Speeding Houston Cop Denied Immunity in Fatal Crash Case
A Houston cop that the Fifth Circuit determined was traveling at a “reckless speed” in December 2021 when he fatally struck another motorist is not entitled to immunity from the subsequent lawsuit.
In an 18-page opinion issued April 3, Judges James E. Graves Jr., Stephen A. Higginson and Cory T. Wilson explained that Officer Christopher Cabrera wasn’t responding to an emergency when he reached speeds of 70 MPH in a 35 MPH zone just before he crashed into the vehicle driven by Charles Payne Sr. Instead, he was “hurrying back” to the station to complete paperwork and file charges on a drunken driving suspect the officer had booked into a processing center in downtown.
The opinion notes Cabrera didn’t have on lights and sirens and that if he “had been going the speed limit, the collision would not have occurred.” The city had argued that because Cabrera was “reacting” or “responding” to an emergency situation, immunity should bar the lawsuit. The family argued that the city’s stance is “a perverse construction of the emergency exception.”
“We agree,” the Fifth Circuit panel wrote.
“When Officer Cabrera was assisting in arresting the suspect, he was responding to the emergency DWI call,” the opinion reads. “He was still acting in response to the underlying reason for being there. However, by the time he left the booking center to finish his report and file charges, his response to the emergency call had ended.”
The Fifth Circuit ruling affirms U.S. District Judge David Hittner’s ruling that allowed the case to proceed. Houston had filed notice it was appealing Judge Hittner’s decision in April 2024.
The Payne family is represented by James Sherry of McCathern and Paul Grinke of Ben Crump Law.
Houston is represented by Christy Lynn Martin of the city’s legal department.
The case number is 24-20150.