SMU Corporate Governance Initiative · Hilltop Forum on Capital Markets
The Hilltop Docket
Issue No. 21 · Monday, October 5, 2026 · Week in review · Covering opinions signed September 25 – October 2, 2026
Texas reincorporation reaches the courthouse.
In Coinbase's derivative case, the Business Court applied Texas standing law, even assuming Delaware law governed the underlying claims (Guillaume, ¶¶ 10, 17–18).
In this issue
When a Delaware corporation becomes a Texas corporation, which state's law decides who may sue on the company's behalf — the state of incorporation when the alleged wrongdoing happened, or the state of incorporation when the shareholder sues? On Friday the Business Court answered: for a Texas corporation, Texas law governs a shareholder's standing, even assuming Delaware law governs the claims themselves. The answer dismissed, without prejudice, a derivative action against the board of Coinbase Global.
Five opinions: four signed between September 28 and October 2, and 2026 Tex. Bus. 67, signed September 25 and treated here for the first time. One of them is the opinion this publication was built to cover. The other four are the ordinary work of a commercial trial court, and three of them turn on the same unglamorous question: who proves what, and when.
- Texas law governs a shareholder's standing to sue derivatively for a Texas corporation, even when the claims arose under another state's law — 2026 Tex. Bus. 70
- Texas and Delaware, side by side: who may sue for the company
- What the conversion documents actually say
- Proximate cause is a test for consequential damages, and cannot be run against direct damages on the pleadings — 2026 Tex. Bus. 68
- An "as-is" clause that preserves the lease's express warranties preserves the claims built on them — 2026 Tex. Bus. 71
- An output contract buys what the seller made, not what the seller could have made — 2026 Tex. Bus. 69
- Allegations do not outweigh evidence on amount in controversy — 2026 Tex. Bus. 67
- New petitions
- Dockets and calendar
- For the record
2026 Tex. Bus. 70 · Guillaume v. Armstrong
| Citation | 2026 Tex. Bus. 70 |
|---|---|
| Style | Gary Guillaume, derivatively and on behalf of Coinbase Global, Inc., Plaintiff v. Brian Armstrong, et al., Defendants, and Coinbase Global, Inc., a Texas Corporation, Nominal Defendant |
| Cause number | 26-BC01A-0052 |
| Division | First Division |
| Judge | Andrea K. Bouressa |
| Signed | Friday, October 2, 2026 |
| Vehicle | Rule 91 special exceptions to a derivative action petition |
| Disposition | Special exceptions sustained as to the application of Texas law; action dismissed without prejudice (¶ 24) |
| Length | 15 pages, ¶¶ 1–24, three footnotes, plus a court-staff syllabus |
Gary Guillaume sued the directors of Coinbase Global derivatively. He pleaded that the wrongdoing occurred between April 14, 2021 and June 5, 2023 — a period during which Coinbase was a Delaware corporation. He made no pre-suit demand on the board. Instead he pleaded demand futility, which is what Delaware law permits. He filed on April 16, 2026, in the 68th Judicial District Court of Dallas County (¶ 6).
By then Coinbase had been a Texas corporation for four months.
For a public company such as Coinbase, Texas does not have demand futility. Section 21.553(a) of the Business Organizations Code says a shareholder "may not institute a derivative proceeding until the 91st day after the date a written demand is filed with the corporation" (¶ 2). The Supreme Court of Texas has described the change in terms the Business Court quotes at ¶ 22: "Unlike Texas law for a century before, the new provision requires presuit demand in all cases; a shareholder can no longer avoid a demand by proving it would have been futile."
So the case turned on a single question of choice of law, and the court said so plainly.
The importance of choice of law in the circumstances before the Court cannot be overstated: Plaintiff's suit must be dismissed if Texas law governs, but not if Delaware law governs.2026 Tex. Bus. 70, ¶ 9
The move the opinion makes
The plaintiff's argument was intuitive: the claims arose under Delaware law, so Delaware law should govern the right to assert them. The court assumed he was right about the claims — "This Court does not reach a contrary conclusion and assumes—without deciding—that Plaintiff is correct" (¶ 10) — and then separated standing from merits. The special exceptions, it reasoned, raised a choice-of-law question not about the pleaded claims but about "Plaintiff's standing to assert those claims for Coinbase" (¶ 10). Standing, it held, "warrants independent inquiry" (¶ 10), is assessed "at the time suit is filed" (¶ 12), and in Texas is conferred by statute (¶ 13).
From there the internal affairs doctrine did the work. The doctrine, the court wrote at ¶ 17, "subjects various acts and omissions to review according to the law of the state of incorporation as of the date they (do or do not) occur." A director's authority to act is judged by the law in force when the director acted. A shareholder's authority to file suit on the corporation's behalf is, on the court's reasoning, "an indistinguishable circumstance" — judged by the law in force when the shareholder files. And the court supplies the symmetry argument in one sentence: "After all, a board majority's decision to institute an identical suit on behalf of the corporation would be governed by the same." (¶ 17)
The rule of law
A shareholder's standing and ability to bring a derivative suit on behalf of a Texas corporation is governed by Texas law, even if the asserted claims arise under — and are subject to — the laws of another state (¶ 18). Standing is measured at the time suit is filed (¶ 12); a shareholder acquires no vested right, at the moment a corporate claim accrues, to assert that claim later in a derivative suit (¶ 16). Where no pre-suit demand was made, the action must be dismissed (¶¶ 13, 23).
The court gave its reason for drawing a bright line, and it is a practical one: "The benefits of this bright-line rule are clarity and certainty, particularly where shareholders may assert claims arising at different points in time (perhaps before and after a reincorporation), putting the laws of more than one state at issue." (¶ 18)
It also declined an invitation to decide more than it had to. Whether pre-suit demand is itself a component of standing is, as the court reads Delaware law, settled there (¶ 14), and less clear in Texas, where the standing provision and the demand provision sit in different sections of the Code. The court noted the question, observed that the internal affairs doctrine "supports only one conclusion regarding governing law as to the pre-suit demand requirement, regardless of whether it is considered a component of standing," and expressly did not resolve it (¶ 14).
In plain English
Think of a derivative suit as a shareholder borrowing the company's car. The car belongs to the company; the board normally decides when it gets driven. A derivative plaintiff is a shareholder who takes the keys anyway, on the argument that the board will not drive it where it needs to go. Every state has its own rules about when you may take the keys. Delaware lets you skip asking the board if you can show that asking would plainly be pointless. Texas makes you ask, in writing, first; you then wait ninety days unless the board turns you down sooner or waiting would cause the company irreparable injury.
The plaintiff's position was that because the alleged damage to the car happened while the company lived in Delaware, Delaware's key rules should apply. The court's answer was that the key rules are about the act of taking the keys, not about the dent. He took them in April 2026, when the company lived in Texas. So Texas rules applied, he had not asked, and the car goes back.
What this does and does not establish
Does: that at the trial level in Texas, once a company is a Texas corporation, Texas law governs who may sue its board derivatively, measured when the shareholder sues and not when the conduct occurred, even if another state's law governs the claims (¶¶ 10, 17–18). It applies that rule to a public company that left Delaware for Texas, and it supplies a reasoned rejection of the contrary approach in In re Skyport Global Communications, which the court declined to follow because that bankruptcy court "engaged in no analysis as to why the law governing the merits of the underlying claim would also apply to standing" (¶ 15).
Does not: decide the claims. The court dismissed this action without prejudice (¶ 24); a later suit would still have to meet the demand, standing and other requirements then in force. Nothing in the opinion decides whether pre-suit demand is a component of standing in Texas (¶ 14), whether the plaintiff's demand-futility pleading would have been adequate under Delaware law, or anything about the merits of the underlying allegations. It is a trial-court opinion, and it cites no Texas appellate decision on this choice-of-law question.
Open question for the reader, and for us
The court held that standing is measured when the shareholder acts. The Legislature appears to have addressed the same conversion scenario directly in a provision the opinion does not cite: Section 21.552(b) of the Business Organizations Code provides that where "the converted entity in a conversion is a corporation," a shareholder may not maintain a derivative proceeding on pre-conversion acts unless the shareholder "was an equity owner of the converting entity at the time of the act or omission" and fairly and adequately represents the corporation's interests. That provision assumes Texas law governs derivative standing after a conversion and sets a continuity-of-ownership condition on it — which is consistent with the court's result and arguably narrower than its reasoning. Does § 21.552(b) supply a statutory route to the same holding, and would an appellate court prefer it to the internal-affairs route the opinion takes? We pose the question; the opinion does not reach it and neither do we.
The structure of the section raises a second question. Subsection (a) opens "Subject to Subsection (b)," and only subsection (a) carries the ownership threshold a listed corporation may adopt, at (a)(3). Subsection (b), the conversion rule, lists two conditions — equity ownership at the time of the act and adequate representation — and no threshold. Every act pleaded in this case predates the conversion (¶ 6). Does a bylaw threshold adopted under (a)(3) reach a derivative suit over pre-conversion acts at all? The statute does not say, and the opinion does not reach it. Tex. Bus. Orgs. Code § 21.552(a)–(b).
Texas and Delaware, side by side: who may sue for the company
The court called the loss of the option to plead demand futility "the chief difference between Delaware and Texas law as relevant to the issues raised in this case" (¶ 21). It is worth stating with both sides' primary sources on the page. The question is not whether a shareholder can ever sue derivatively in Texas — she can. It is what she must do first, and how much she must own.
| Question | Texas | Delaware |
|---|---|---|
| Is pre-suit demand required? | Yes; futility does not excuse it. "A shareholder may not institute a derivative proceeding until the 91st day after the date a written demand is filed with the corporation stating with particularity the act, omission, or other matter that is the subject of the claim or challenge and requesting that the corporation take suitable action." Tex. Bus. Orgs. Code § 21.553(a) (quoted at 2026 Tex. Bus. 70, ¶ 2). Excepted: a closely held corporation's derivative claims against its own present or former directors, officers or shareholders. Id. § 21.563(b). | Yes, unless excused. To sue for the corporation, a stockholder must make a demand on the board or show that demand would be futile. United Food & Commercial Workers Union v. Zuckerberg, 262 A.3d 1034, 1047–48 (Del. 2021) (cited at 2026 Tex. Bus. 70, ¶ 4); Del. Ch. Ct. R. 23.1. |
| Can futility excuse the demand? | No. "Unlike Texas law for a century before, the new provision requires presuit demand in all cases; a shareholder can no longer avoid a demand by proving it would have been futile." Sneed v. Webre, 465 S.W.3d 169, 184 (Tex. 2015) (quoting In re Schmitz, 285 S.W.3d 451, 454–55 (Tex. 2009)) (quoted at 2026 Tex. Bus. 70, ¶ 22). | Yes, on particularized pleading as to each director. The court asks "(i) whether the director received a material personal benefit from the alleged misconduct that is the subject of the litigation demand; (ii) whether the director faces a substantial likelihood of liability on any of the claims that would be the subject of the litigation demand; and (iii) whether the director lacks independence" from such a person. Zuckerberg, slip op. at 41; 262 A.3d at 1059 (cited at 2026 Tex. Bus. 70, ¶ 4). Demand is excused if the answer is yes for at least half the demand board. Id. |
| Is there an ownership threshold? | For a corporation with common shares listed on a national securities exchange, or one that has elected to be governed by § 21.419 and has 500 or more shareholders, yes, if the corporation adopts one. The shareholder must beneficially own, when the proceeding is instituted, shares sufficient to meet a threshold "identified in the corporation's certificate of formation or bylaws, provided that the required ownership threshold does not exceed three percent of the outstanding shares of the corporation." Tex. Bus. Orgs. Code § 21.552(a)(3). Once a corporation adopts one, it is a minimum ownership a derivative plaintiff must hold; the statute imposes none by default. | Section 327 sets no ownership percentage. It requires the complaint to aver "that the plaintiff was a stockholder of the corporation at the time of the transaction of which such stockholder complains or that such stockholder's stock thereafter devolved upon such stockholder by operation of law." Del. Code Ann. tit. 8, § 327. The Delaware Supreme Court has said a plaintiff's "loss of stockholder status" during the suit would warrant reconsideration of derivative standing. Collis, slip op. at 51 n.214. |
| Which state's law governs standing after a reincorporation? | For a Texas corporation, Texas, measured when the shareholder sues, even where the claims arose under another state's law. 2026 Tex. Bus. 70, ¶¶ 12, 17–18 (a trial-court opinion; it cites no Texas appellate decision on the question). | The opinion cites no Delaware authority on which state's law governs after a reincorporation. As the court reads Delaware law, a rejected demand or a pleading of demand futility is substantive and a component of standing (2026 Tex. Bus. 70, ¶ 14). Lebanon Cnty. Emps.' Ret. Fund v. Collis, 311 A.3d 773, 801–02 (Del. 2023) (cited at 2026 Tex. Bus. 70, ¶ 14). |
What this does and does not establish
Does: that the two regimes differ on the pre-suit step that most derivative litigation begins with, and that after a Texas reincorporation the Texas step is the one that applies. Under the statute, a plaintiff who pleaded futility must make a written demand and, ordinarily, wait ninety days; whether a refiled suit can proceed may also turn on the company's own ownership bylaw, discussed below.
Does not: establish that Texas is categorically less hospitable to derivative plaintiffs; the opinion in this issue dismissed without prejudice. An ownership threshold, where a corporation adopts one, is a separate limit set corporation by corporation; the next section reads Coinbase's.
What the conversion documents actually say
Coinbase's shareholders were told, in the information statement that accompanied the reincorporation, that the move would not cost eligible holders (those who owned shares when the conduct occurred and keep them through the suit) the ability to sue derivatively over what had already happened. The plaintiff put that language in front of the court. It is worth reading what the filings say, because the Docket's standing practice is to read the filing rather than a summary of it, and because the documents contain two provisions the opinion did not need to reach.
The representation the plaintiff relied on
The court quotes it at ¶ 19 from the plaintiff's exhibit. We retrieved the filing itself from EDGAR. Under the heading "Eligible Derivative Actions," the definitive information statement describes the Plan of Conversion as providing that the reincorporation will not
extinguish or adversely affect the standing or ability of any such person or entity to initiate such a derivative action or suit on behalf of the Delaware Corporation regarding acts, omissions or transactions occurring prior to the Effective Time if such person or entity was a stockholder or beneficial owner of the Delaware Corporation at the time of such act, omission or transaction; provided that, in each case, such person or entity shall maintain his or her status as a stockholder or beneficial owner of the Texas Corporation through the pendency of any such derivative action or suit (any such person or entity, a “Plaintiff,” and any such derivative action or suit, a “Derivative Action”). Following the Effective Time, the Texas Corporation will not assert that the Reincorporation, or the application of the laws of the State of Texas to the Texas Corporation, extinguished or adversely affected the standing or ability (as applicable) of any such Plaintiff to initiate or maintain any such Derivative Action.Coinbase Global, Inc., Definitive Information Statement (Schedule 14C), filed November 24, 2025, accession 0001679788-25-000227, "Certain Matters That Will Not Change After Reincorporation—Eligible Derivative Actions"
The court gave three reasons the language did not save the suit (¶¶ 20–22). First, the exhibits nowhere say that Delaware law will continue to govern standing; they say the opposite, that Texas law will govern the corporation's affairs after the conversion, so the plaintiff's reading is "overly broad" (¶ 20). Second, the plaintiff never explained how losing the option to plead futility, rather than make a demand, actually adversely affected him — he did not argue that a demand would be impossible, harmful, or even prejudicial (¶ 21). Third, he offered no argument that Texas law permits a party to contract around the demand requirement, and "[t]here is no such carve-out in the bylaws filed with the Court" (¶ 22).
Two provisions in the same filing
The bylaws adopted at the conversion, filed as an exhibit to the Form 8-K reporting it, contain two articles that bear directly on this litigation and are not discussed in the opinion.
- Article XI fixes the forum. Unless the corporation consents otherwise, "the Business Court in the First Business Court Division" of Texas is the sole and exclusive forum for "any derivative action or proceeding brought on behalf of the Corporation," with the Northern District of Texas – Dallas and then the Dallas County state district court as fallbacks if jurisdiction fails. This suit was filed in a Dallas County district court — the bylaw's last-listed forum — and reached the Business Court (First Division), where the court's docket shows it from June 15, 2026. The opinion does not say by what route it arrived.
- Article XII sets a minimum ownership to sue. "No shareholder or group of shareholders may institute or maintain a derivative proceeding brought on behalf of the Corporation against any director and/or officer of the Corporation in his or her official capacity, unless the shareholder or group of shareholders, at the time the derivative proceeding is instituted, beneficially owns a number of shares of common stock sufficient to meet an ownership threshold of at least 3% of the total outstanding shares of the Corporation."
Source: Bylaws of Coinbase Global, Inc. (a Texas corporation), certified December 2025, filed as Exhibit 3.2 to the Form 8-K of December 16, 2025, accession 0001679788-25-000247. The reincorporation became effective December 15, 2025 at 5:00 p.m. Eastern Time (Item 8.01). It was approved by written consent delivered November 4, 2025 by stockholders holding approximately 78.40% of the voting power — trusts and holdings associated with Brian Armstrong and Fred Ehrsam — on a record date of October 31, 2025, when 228,176,267 Class A and 41,481,347 Class B shares were outstanding and entitled to vote (Definitive Information Statement, accession 0001679788-25-000227).
In plain English
Three percent sounds modest. On the share counts in the company's own October 31, 2025 record-date disclosure it is about 8.09 million shares, a substantial holding for one investor or for a group acting together. The bylaw measures ownership when the suit is instituted, not on that record date, and nothing in the record says what this plaintiff owns.
Open question for the reader, and for us
The dismissal was without prejudice, which leaves room to try again: make the demand, ordinarily wait ninety days, refile, subject to every requirement a new suit must meet. One more sentence in the same disclosure belongs in this frame: the company said that, after the conversion, it "will not assert" that the move or Texas law "extinguished or adversely affected the standing or ability" of an eligible plaintiff (quoted above; Plan of Conversion § 8(d)). The opinion does not mention that sentence. The special exceptions were brought by the individual defendants; Coinbase is captioned separately as nominal defendant, and the opinion does not say whether it joined them. But Article XII bars a shareholder from instituting or maintaining a derivative proceeding without the threshold holding, and nothing in the opinion tells us whether this plaintiff has it. Does a without-prejudice dismissal on demand grounds leave a practical route back into court for a holder below the threshold, or does the bylaw make the distinction between "with" and "without" prejudice academic here? The defendants did not need to raise Article XII to win on demand, and the court did not reach it. We do not know the plaintiff's holdings and do not assert an answer. We note the question because the two provisions interact, and the interaction is the thing a practitioner needs to see.
A second, narrower construction question sits inside the bylaw: "3% of the total outstanding shares of the Corporation," in a company with two classes of common stock carrying different voting power, is not self-defining. The statute speaks of "the outstanding shares of the corporation." Nothing turns on it this week.
2026 Tex. Bus. 68 · Southwest Airlines Pilots Association v. The Boeing Company
| Citation | 2026 Tex. Bus. 68 (mem. op.) |
|---|---|
| Cause number | 25-BC01A-0040 |
| Division | First Division |
| Judge | Andrea K. Bouressa |
| Signed | Monday, September 28, 2026 |
| Vehicle | Renewed traditional motion for summary judgment on proximate causation |
| Disposition | Granted as to pleaded consequential damages; direct-damages claims remain pending; interlocutory (¶ 10) |
| Prior opinion | 2026 Tex. Bus. 37, which denied the first motion without prejudice and directed a repleader |
This is the second opinion in the same cause, and the pair together make a clean teaching point about what a causation motion can and cannot reach. Boeing moved for summary judgment on every claim the pilots' union pleaded, on the single ground that the union could not establish proximate cause. The court agreed with the ground and then limited the relief, because proximate cause is not the test for every kind of damage.
The rule of law
Proximate cause is the causation standard for consequential damages, not for direct damages (¶ 3). Consequential damages must be specifically pleaded; direct damages need not be (¶ 4). It follows that "causation of direct damages is not susceptible to being weighed at the pleadings stage," and a motion directed only at proximate cause reaches only the pleaded consequential damages (¶ 4).
On the consequential damages the union did plead, the court held the pleading defeated itself. Having been given leave in 2026 Tex. Bus. 37 to replead damages proximately caused by Boeing's alleged interference in collective bargaining, the union instead "doubled down" on lost wages, lost dues and attorneys' fees (¶ 7) — and its own petition attributed each of those to the grounding of the 737 MAX fleet and the federal investigations that followed, not to anything Boeing did at the bargaining table. The court quotes the petition's own "With the 737 MAX removed from service" and "subsequent to the grounding" language and concludes: "On its face, SWAPA's pleading negates any causal link between Boeing's alleged interference with SWAPA's collective bargaining process and SWAPA's pleaded consequential damages." (¶ 8)
What survives is narrow and real. To the extent the union seeks direct damages for representations or omissions that induced it into a disadvantageous collective bargaining agreement, those claims remain pending (¶ 9) — because Boeing's motion never reached them, and "the Court cannot grant greater relief than Boeing sought in its motion" (¶ 9, citing G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam)).
In plain English
Direct damages are the hole in your pocket. Consequential damages are the further losses that followed because the money fell out. The law asks a harder causation question about the second kind, because the chain is longer and the defendant has to have been able to see it coming. Boeing argued that the chain was too long. The judge agreed about the far end of it — the grounded planes, the lost flying, the investigations — and then pointed out that Boeing had not argued anything at all about the hole in the pocket. So that part of the case is still standing.
A note on naming, for readers who follow the reincorporation cohort: the plaintiff here is the pilots' union, and the defendant is The Boeing Company. Southwest Airlines is named throughout the opinion as the union's bargaining counterparty, not as a party.
2026 Tex. Bus. 71 · Exeter Denton Land, L.P. v. Ariat International, Inc.
| Citation | 2026 Tex. Bus. 71 (mem. op.) |
|---|---|
| Cause number | 25-BC08B-0019 |
| Division | Eighth Division |
| Judge | Brian Stagner |
| Signed | Friday, October 2, 2026 (e-filed 3:06 p.m.; envelope ID 120710826) |
| Vehicle | Landlord's traditional motion for summary judgment on the tenant's counterclaims |
| Disposition | Granted only as to damages excluded by Lease § 24 (one claimed category in full, parts of three others) and otherwise denied; no counterclaim dismissed in its entirety; no liability established and no damages awarded; interlocutory (¶¶ 2, 87–88) |
| Length | 36 pages, ¶¶ 1–88 |
A warehouse floor moved. The tenant left, and counterclaimed for constructive eviction, breach of contract, breach of the implied warranty of suitability, and breach of the warranty of quiet enjoyment. The landlord moved for summary judgment on three independent theories — an "as-is" clause, the economic loss rule, and a contractual damages limitation. It lost the first two and won part of the third.
The sentence inside the sentence
The as-is clause reads: "Tenant accepts the Premises, Building and Common Areas ʻAS IS’, without relying on any representation, covenant or warranty by Landlord other than as expressly set forth in this Lease." (¶ 46, emphasis the court's)
The rule of law
Where an as-is clause carves out representations, covenants and warranties "expressly set forth" elsewhere in the lease, the carve-out preserves those express promises, and the clause cannot categorically bar contract counterclaims founded on them. "To hold otherwise would be to read the exception out of the sentence and render Exeter's express obligations meaningless." (¶ 47)
Because the same lease contained express covenants to maintain footings and foundation, to comply with applicable laws at commencement, and of quiet and peaceful possession, the as-is clause left the contract, quiet-enjoyment and constructive-eviction theories intact (¶¶ 47–48). The implied warranty of suitability required a more careful analysis — an implied warranty is by definition not an express promise preserved by the carve-out — but the court found this lease closer to those in which no effective disclaimer was made, and denied summary judgment on that ground too (¶¶ 49–55). The economic-loss argument also failed (¶¶ 56–61): the implied warranty of suitability exists apart from any obligation in the lease (¶ 58), and the landlord's ground — that the claims arise from a lease and seek economic losses — cannot by itself defeat constructive eviction, which always arises from a lease (¶ 59). The quiet-enjoyment counterclaim, pleaded under the lease's express covenant, sounds in contract: no tort or exemplary damages, and no double recovery with constructive eviction (¶ 60). Two limits travel with these rulings. Which party bore responsibility for the slab and the ground beneath it is disputed; the court ruled only that the as-is clause does not resolve it (¶ 53). And the court noted, without resolving, that the Supreme Court of Texas has reserved whether to recognize constructive eviction as an affirmative claim (¶ 59 & n.94).
Where the landlord won: the damages limitation
Section 24 of the lease excluded loss of business or profits and consequential, punitive or special damages. The court worked the tenant's expert's five categories one at a time, and the exercise is a useful map of the direct/consequential line in a Texas commercial lease. "Survives" below means only that the landlord did not get the item excluded on this motion; the court approved no measure or amount of recovery (¶ 71), and the ruling "establishes no liability and awards no damages" (¶ 88).
- $9,881,107 in improvements and installation — survives. Money spent on improvements contemplated by the lease may support direct damages tied to the value of the leasehold promised; the landlord did not conclusively establish the category was excluded (¶¶ 69–72).
- $669,479 in assessment and investigation costs — split. Seven line items totaling $105,619 (floor-flatness surveys, geotechnical investigation, materials testing, foundation inspection, structural engineering) survive; six invoices totaling $563,860 for retaining an idle maintenance crew are consequential and excluded (¶¶ 73–76).
- $4,347,800 in removal, storage and transport — identified charges excluded, the rest open. Texas law treats relocation and moving expenses as special damages (¶ 78, citing Briargrove Shopping Center Joint Venture v. Vilar, Inc., 647 S.W.2d 329, 336 (Tex. App.—Houston [1st Dist.] 1982, no writ)). The court excluded the packing, transport, relocation and storage charges it identified (¶ 79 & n.110) and denied summary judgment as to the balance of the category: it would not exclude those items merely because the expert grouped them, and the landlord had not yet established that they are consequential (¶ 79).
- $22,466,010 in higher costs to fill customer orders — excluded. "At bottom, this is a claim for the operating savings that Ariat expected to achieve from an automated distribution center that never opened." (¶ 81)
- Replacement-lease differential — excluded beyond the bargained term. A displaced tenant's direct damages run to the difference between agreed rent and market rental value for the unexpired term, which ends October 31, 2027. Calculations assuming an unexecuted expansion to 2032 and a renewal to 2037 measure "the benefit of a separate, never-consummated transaction" (¶ 85) and are excluded; the differential on the existing leasehold survives (¶¶ 82–86).
In plain English
A damages-limitation clause is a fence, not a wall. It keeps out the losses that depend on how this particular tenant runs its particular business — what it costs to move its robots, what it costs to ship from a different warehouse — because the landlord never signed up for those. It does not keep out the value of the thing the landlord promised, a usable building for the years remaining on the lease, if the tenant proves the landlord failed to deliver it. The court has not decided that question: the ruling "establishes no liability and awards no damages" (¶ 88). The tenant lost its entire $22.47 million customer-order claim and kept the right to try to prove the losses tied to the existing lease.
2026 Tex. Bus. 69 · FSTI, Inc. v. PVS Minibulk, Inc.
| Citation | 2026 Tex. Bus. 69 |
|---|---|
| Cause number | 26-BC03A-0010 |
| Division | Third Division |
| Judge | Melissa Andrews |
| Signed | Thursday, October 1, 2026 (opinion explaining an order granting the motion entered September 25, 2026 — ¶ 1) |
| Vehicle | Traditional motion for summary judgment on a breach-of-contract claim under a ten-year output contract |
| Disposition | Granted, disposing of Count II of the first amended petition (¶ 37); two related summary-judgment motions addressed in a separate opinion (¶ 1 n.1) |
| Length | 28 pages, ¶¶ 1–37, 101 footnotes |
A ten-year supply agreement obliged the buyer to purchase "100% of Seller's production from its Greenville TX facility," excluding retail and mini-bulk sales. The parties agree it is an output contract under Chapter 2 of the Business & Commerce Code. The buyer bought all the bleach the seller made. The seller nonetheless claimed breach, on the theory that the buyer's pickups constrained how much the plant could make, so the obligation should be measured by capacity rather than by output (¶¶ 9, 14).
The rule of law
In an output contract, "production" means what the seller actually made, not what the seller had the capacity to make: the buyer "was obligated to buy what FSTI actually made, not what FSTI hypothetically could have made" (¶ 18). The good-faith obligation of Tex. Bus. & Com. Code § 2.306(a) does not convert a production obligation into a capacity obligation (¶¶ 19–20). Nor will a court imply a "reasonable time" for performance equal to whatever timing would let the seller run at capacity, absent a basis for concluding the parties expected that at the time of contracting (¶¶ 33–34). The seller had not pleaded that timing theory; the court reached it because the buyer did not object (¶ 30 n.82).
Two facts carried the second holding. At contracting, both parties knew the facility's historical average production — "around 7 million gallons" a year, an average of 19,178 gallons a day — and during performance the plant consistently produced more than that historical average, producing more in the first full year under the contract than in any prior year (¶ 34). On that record the court declined to read into the agreement a timing obligation calibrated to the 30,000-gallon-per-day capacity the seller's expert asserted, or even the 22,500 figure the seller briefed.
In plain English
An output contract is a standing order: whatever you make, I will buy. It is not a production quota in reverse. The seller here wanted the standing order read as a promise to keep the plant running flat out — buy fast enough, often enough, that my tanks never back up. The court's answer was that the contract said "production," production means what came out of the plant, and in its first full year under the contract the plant produced more than in any prior year.
2026 Tex. Bus. 67 · Runner Runner LLC v. BLPP Holdings, LLC
| Citation | 2026 Tex. Bus. 67 (mem. op.) |
|---|---|
| Cause number | 26-BC01A-0062 |
| Division | First Division |
| Judge | Andrea K. Bouressa |
| Signed | Friday, September 25, 2026 |
| Vehicle | Motion to remand challenging the amount in controversy after removal |
| Disposition | Remand granted; returned to the 134th Judicial District Court, Dallas County (¶ 8); no merits ruling, and no separate ruling on the defendant's motion to strike (¶ 1) |
| Length | 6 pages, ¶¶ 1–8 |
This is the shortest opinion of the week. It applies the three-step burden-shifting framework from C Ten 31 v. Tarbox, 2025 Tex. Bus. 1, ¶¶ 49–51 (3d Div.), and shows what each step costs.
The rule of law
Where a removing party pleads the amount in controversy from the non-movant's own petition, the non-movant puts on evidence that the threshold is not met, and the removing party answers with nothing but the pleadings, the case is remanded. "Mere allegations cannot outweigh Runner Runner's evidentiary record." (¶ 7)
The removing defendant leaned on the petition's own statement that the company's ranch had "an estimated fair market value of approximately $5,000,000." The plaintiff's member swore, with a loan agreement and deed of trust attached, that the property was encumbered by roughly $1.74 million of indebtedness as of the removal date, and that the five-million figure "was an estimate of the Ranch's possible gross market value" that "did not account for the indebtedness" and "was not a valuation of FM 900 as an entity" (¶ 5). The court walked the remaining alleged irregularities — about $82,000 to one entity, about $23,900 in checks, a $360,000-plus funding shortfall, a disputed $28,040.42 default notice, with roughly $80,000 already returned — and found the total short of the statutory threshold (¶ 6; Tex. Gov't Code § 25A.004(b)(2)). The removing party offered no competing proof, and so lost at step three (¶ 7).
In plain English
An estimate of what a property might be worth is not what the company that owns it is worth, any more than the estimated value of a mortgaged house is the owner's equity. The party trying to keep the case in Business Court quoted the estimate. The other side produced the mortgage. Nobody produced anything to answer the mortgage, so the estimate lost.
New petitions
Twelve new Business Court petitions appear in the docket-alert feed with filing dates from September 28 through October 2, 2026, across four divisions. Copies of two notices of appeal were filed in the Fifteenth Court of Appeals in the same window. Entries are court metadata only; no petition was read.
| Filed | Cause | Style | Type |
|---|---|---|---|
| Mon, Sep 28 | 26-BC11B-0112 | BWC Terminals LLC v. Sunrise Foods International Inc. | Debt / contract |
| Mon, Sep 28 | 26-BC08B-0031 | Fairchild Baker Hotel OZ Investment, LLC, et al. v. Thomas Randall Nix; The Baker Hotel Development Partners, LLC | Securities / stock |
| Tue, Sep 29 | 26-BC01B-0083 | Frontline InvestCo, LLC; G4 Site Holdings, LLC v. Mike Golpa; G4 Dental Enterprises, LLC, et al. | Other civil |
| Tue, Sep 29 | 26-BC11B-0114 | Venodhar Julapalli v. Jason Knight; The Methodist Hospital; Methodist Health Centers, et al. | Other civil |
| Tue, Sep 29 | 26-BC11B-0115 | KDC, LLC v. iHeartMedia, Inc.; Premiere Networks, Inc.; Thomas Miles, et al. | Debt / contract |
| Wed, Sep 30 | 26-BC03B-0036 | BYD Motors LLC v. Einride US Inc.; Einride Inc. | Other civil |
| Wed, Sep 30 | 26-BC01A-0084 | Global Spectrum, L.P. d/b/a OVG360 v. City of Dallas; Fair Park First; John D. Jenkins, et al. | Debt / contract |
| Thu, Oct 1 | 26-BC01A-0086 | Samit Patel, et al. v. Hiren "Chico" Patel, et al. | Other civil |
| Thu, Oct 1 | 26-BC01B-0085 | UEP, Inc. v. Penthouse Property Group LLC; Prologis-McDaniel, LLC; Regulus Industries, LLC, et al. | Other civil |
| Thu, Oct 1 | 26-BC11B-0116 | Keith D. Chapman; Kyomera Ventures, LLC v. Nicholas Flores; Kyomera Management, LLC | Tortious interference |
| Thu, Oct 1 | 26-BC11B-0117 | Exo Group Parent, LLC; Exo Group Holdings, LLC; Exo Group, LLC v. Justin Evans; Chase Bonning, et al. | Intellectual property |
| Fri, Oct 2 | 26-BC03B-0037 | American Bank of Commerce v. Jesse Brick Sudderth; Emory Powell Thompson; Cameron Russell Sykes; Citizens State Bank | Other civil |
Fifteenth Court of Appeals, copies of notices of appeal filed September 28: 15-26-00179-CV (Berry v. Powers; Allied Ports LLC) and 15-26-00174-CV (RivenRock, LLC v. Camino Real Developers, LLC).
Dockets and calendar
Settings below are drawn from the live docket-alert feed as generated 2026-10-03T19:31Z. Every row is court metadata only — no motion or notice was read — and a setting should be confirmed with the coordinator before anyone travels for it.
| Date | Setting | Case | Div. |
|---|---|---|---|
| Mon, Oct 5 | Bench trial | Energy Founders Fund, LP v. Phillip Daskevich; Cris Curnutt Daskevich 26-BC11A-0004 · opinion at 2026 Tex. Bus. 34 | 11a |
| Mon, Oct 5 | Jury trial | Synergy Thermogen, Inc.; Synergy Automation, LLC v. BlackBrush Oil & Gas 25-BC01B-0011 · opinion at 2026 Tex. Bus. 47 | 1b |
| Mon, Oct 5 | Jury trial | Roger Muniz, individually and derivatively on behalf of 21MM Solutions 25-BC11B-0004 | 11b |
| Mon, Oct 5 | Motion | Bison Energy Opportunity Fund, L.P.; Rhonda McConnell v. Paden McKinney 26-BC11B-0028 | 11b |
| Mon, Oct 5 through Oct 16 | Jury trial (continuing setting) | Silverstar Properties REIT, Inc.; Silver Star CRE, LLC, et al. 25-BC08B-0016 | 8b |
| Tue, Oct 6 | Conference | Joseph Beard v. Henry Ross Perot, Jr.; Anurag Jain; Perot Jain, L.P. 26-BC01B-0018 · opinion at 2026 Tex. Bus. 65, covered in Issue No. 20 | 1b |
| Tue, Oct 6 | Motion | Toby Neugebauer; Vicksburg Investments Management, LLC v. Fermi, Inc. 26-BC01B-0034 · Fermi went public as a Texas corporation (Texas at IPO) | 1b |
| Wed, Oct 7 | Pre-trial conference | Jerry B. Reed v. Rook TX LP; Rook GP LLC; Colossusbets Limited, et al. 25-BC03A-0007 | 3a |
| Fri, Oct 9 | Pre-trial conference | BNSF Railway Company v. CF&I Steel LP d/b/a Rocky Mountain Steel Mills 25-BC08A-0023 | 8a |
| Mon, Oct 12 | Conference | Air Products and Chemicals, Inc. v. Wolfspeed, Inc. 25-BC01B-0051 | 1b |
| Mon, Oct 12 | Pre-trial conference | Amadeus North America, Inc.; Amadeus IT Group SA v. Optym, Inc. 26-BC01B-0004 | 1b |
| Mon, Oct 12 | Trial on the merits | Framic Investments, LLC v. Donald E. Vaughn, II; Cuatro Cinco Manufacturing 25-BC11B-0016 | 11b |
This is a selection from the court's calendar, not the court's calendar. The feed carries 90 alert records for the two weeks beginning October 5 across all divisions; they resolve to 43 distinct settings in 33 cases.