Justice James Sullivan
Justice Brett Busby
In a concurring opinion to one of four cases in which settling parties asked the Texas Supreme Court to vacate appellate decisions by the Dallas, Corpus Christi, Eastland, and Beaumont Court of Appeals, Justice Sullivan, joined by Justice Busby, called upon litigants who settle their disputes after filing petitions for review and then ask the Court to vacate appellate decisions below to refrain from doing so quite so frequently.
Justice Sullivan showed a marked distaste for “litigants [who] assume they can trade away judicial work product so late in the process . . . . Our colleagues on Texas’s fifteen courts of appeals are busy people, too. I fear we will squander muchof their taxpayer-funded time—and some of our own—if we routinely reward belated haggling of the kind seen here.” He pointed out that in this particular case, Megatel C90-2, Inc., Armin Afzalipour, and Megatel Homes, LLC f/k/a Megatel Homes, Inc. v. Bank of Utah (No. 24-0206; May 16, 2025), Megatel filed a PFR on June 21, 2024. On August 2 the Court requested a response, which was filed in October 14 and followed by a replay on January 2, 2025. Several weeks later the parties filed a joint motion to dismiss pursuant to settlement and requested vacatur. The Court requested supplemental briefing on the vacatur issue, which they took up at two subsequent conferences. “All this for a case,” Justice Sullivan noted, “where the parties privately agreed months ago to stop paying their able counsel for prolonged litigation. The bottom line is that motions like these can impose significant demands on ‘the Court and its dedicated staff’” (citation omitted).
Justice Sullivan cited Justice Scalia’s opinion in U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994), as well as the venerable Wright & Miller treatise on federal courts, for the proposition that, save exceptional circumstances, “mootness by reason of settlement does not justify vacatur of a judgment under review.” Current Texas Rule of Appellate Procedure 56.3 provides a presumption against vacatur, which the Court has discretion to grant “only after ‘carefully scrutiniz[ing] parties’ attempts to manipulate judicial precedent by settlement’” (citation omitted). He further observed that since Rule 56.3 was adopted in 1997, the Court has only granted vacatur twice, and one of those was a remand to the court of appeals to consider the parties’ request to withdraw its opinion. Finally, he warned against “gamesmanship” and the “unseel[iness] [of] letting repeat players ‘buy up’ judgments that they dislike by settling cases pending appeal and seeking vacatur” (quoting Hart and Wechsler’s The Federal Courts and the Federal System).
“Going forward,” Justice Sullivan concluded, “I hope we’ll see fewer motions of this sort.” It seems likely that parties may be more hesitant to take up the Court’s time with such motions or risk receiving a similar nastygram.
