TBJ January 2022

2021: The Year in Review


Written by Warren W. Harris and Stephani A. Michel

The Texas Supreme Court addressed several important appellate issues in the past year, including waiver, appellate jurisdiction, and appellate procedure.

The court addressed waiver in two cases. First, in Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, Lion Copolymer argued that evidence was legally and factually insufficient to support the jury verdict in Lion Polymers’ favor.1 After holding that the evidence was legally sufficient, the court of appeals declined to address the factual-sufficiency argument based on inadequate briefing.2 The Supreme Court reversed and remanded, holding that although Lion Copolymer had “intertwined” its sufficiency analyses, it had performed the “comparative analysis” that was “quintessential” to a factual-insufficiency challenge by weighing the evidence supporting the verdict against countervailing evidence.3 That preserved the factual-sufficiency challenge.4

Second, in In re G.X.H., the trial court granted the Texas Department of Family and Protective Services’ request to terminate the parents’ parental rights.5 The court of appeals reversed because the trial court had not timely commenced the trial on the merits.6 The department filed a motion for rehearing en banc, arguing for the first time that the trial court had granted an extension of the trial date.7 The court of appeals denied its motion, and the department raised the extension issue in the Supreme Court.8 The Supreme Court rejected the parents’ argument that the department waived the extension issue by raising it for the first time in its motion for rehearing and petition for review.9 Because the department had “prevailed in the trial court, [it] did not need to raise every argument supporting the trial court’s judgment in its appellee’s brief in the court of appeals.”10

The court also addressed appellate jurisdiction this year. In Kenneth D. Eichner, P.C. v. Dominguez, an accounting firm intervened in a suit for wrongful foreclosure.11 The trial court struck the firm’s intervention petition and subsequently rendered final judgment.12 The firm timely filed a motion for new trial and filed a notice of appeal within 90 days of the final judgment.13 The court of appeals held that the firm’s notice of appeal was untimely because its new-trial motion did not extend the appellate deadline under Texas Rule of Appellate Procedure 26.1(a).14 The Supreme Court reversed and held that the firm was a “party” whose new-trial motion extended the deadline.15 Because the trial court struck the firm’s petition before signing the final judgment, the order striking the petition merged into the final judgment and made the firm a “party” to that judgment.16

Finally, in Data Foundry, Inc. v. City of Austin, the court addressed appellate procedure. There, the trial court granted the city’s Texas Rule of Civil Procedure 91a motion to dismiss Data Foundry’s claims on standing grounds.17 The court of appeals held that Data Foundry had standing but affirmed the dismissal of some claims on other grounds.18 The Supreme Court reversed, holding that because the appeal involved a Rule 91a motion, the court of appeals “should have considered only the standing issue on which the trial court ruled and not reached an issue neither ruled on by the trial court nor adequately developed in the trial court or in the court of appeals.”19

1. 614 S.W.3d 729, 732 (Tex. 2020) (per curiam).
2. Id.
3. Id. at 733, 735-36.
4. Id. at 733.
5. 627 S.W.3d 288, 292-93 (Tex. 2021).
6. Id. at 294.
7. Id.
8. Id.
9. Id. at 294-95 (citing Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 125 (Tex. 2010)).
10. Id. at 295.
11. 623 S.W.3d 358, 360 (Tex. 2021) (per curiam).
12. Id.
13. Id.
14. Id. (citing Tex. R. App. P. 26.1(a)).
15. Id. at 360-63. 16. Id. at 362-63.
17. 620 S.W.3d 692, 693-94 (Tex. 2021).
18. Id. at 695-96.
19. Id. at 699-702.

WARREN W. HARRIS is a partner in Bracewell in Houston, where he heads the firm’s Appellate Practice Group. He is president-elect of the American Academy of Appellate Lawyers.

STEPHANI A. MICHEL is an appellate associate in Bracewell’s Houston office. Previously, she clerked for Judge Gregg Costa of the U.S. Court of Appeals for the 5th Circuit.

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