Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC

Supreme Court of Texas
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No. 24-0183
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Borusan Mannesmann Pipe US, Inc.,
Petitioner,

v.

Hunting Energy Services, LLC,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM

The parties to this lawsuit—Borusan Mannesmann Pipe US, Inc.
and Hunting Energy Services, LLC—dispute which of them must
indemnify the other for defective pipes sold to a third party. The trial
court rendered a declaratory judgment in favor of Hunting. The court
of appeals held that Borusan inadequately briefed and thus forfeited its
indemnity argument, which the court therefore refused to consider. We
reverse and remand for the court of appeals to reach the merits.
Borusan manufactures steel pipes. Hunting offers a service
whereby it expands pipes (a process called “swaging”) and connects them
(a process called “threading”). Borusan hired Hunting to swage and
thread its pipes. Borusan then sold the threaded pipes to a third-party
pipe distributor, Sooner Pipe LLC.
Central to the case are the competing terms found in the parties’
purchase orders and invoices. After Sooner placed its order with Borusan,
Borusan wrote purchase orders to Hunting for its connectors used to
thread the pipes. These purchase orders included Borusan’s terms and
conditions that, among other things, required Hunting to indemnify
Borusan for any pipe defects. The purchase orders also stated that “[a]ny
additional or differing terms or conditions contained in any documents
issued by [Hunting] . . . shall not become a part of the Purchase Order
and are hereby rejected by [Borusan] unless expressly agreed upon in
writing by an authorized representative of [Borusan].” Borusan delivered
its pipes to Hunting, which swaged and threaded them and then delivered
them to Sooner. Set against Borusan’s purchase orders were Hunting’s
invoices, which it sent to Borusan after making the delivery to Sooner.
Hunting’s invoices to Borusan stated that Hunting’s “terms and
conditions apply as stated at Hunting-Intl.com.”
The battle of the forms did not end there. Borusan sent invoices
to Sooner, stating that delivery was “[s]ubject to Borusan[]’s standard
terms and conditions” and “[s]ubject also to Hunting[’s] general terms
and conditions of sale,” all of which were attached. Hunting’s terms and
conditions contained an indemnification clause, which stated in all caps
that “buyer shall be liable for, and shall defend, indemnify and hold
harmless seller . . . from and against any and all claims which arise out
of the performance of the contract.”
This litigation stems from Sooner’s eventual pipe sales to Concho

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Resources, Inc. Concho discovered holes in the pipes it was using to drill
wells, which caused it to abandon the wells and ultimately resulted in
significant damages. Borusan and Hunting blamed each other for the
defective pipes. Hunting sued Borusan, asserting causes of action for
breach of contract, negligence, fraud, negligent misrepresentation, and
breach of warranty. It also sought a declaratory judgment that Borusan
must indemnify it. Borusan counterclaimed for breach of contract and
breach of warranty and sought a declaratory judgment that Hunting
must indemnify it.
The trial court ultimately ruled for Hunting on all issues except
attorney’s fees and signed a partial judgment to that effect. As relevant
to this appeal, the court concluded that Hunting was entitled to a
declaratory judgment that it had no obligation to indemnify Borusan
and that Borusan was required to indemnify Hunting.
The partial judgment recounts that the court “finds” that “[t]he
Purchase Orders from [Borusan] to Hunting and the Invoices from
Hunting to [Borusan],” along with all corresponding purchase orders
and invoices between Borusan and Sooner, were “valid and enforceable
contracts” that were “the commercial documents that govern[ed] the
relationship between the parties.” Borusan requested separate findings
of fact and conclusions of law pursuant to Rules of Civil Procedure 296
and 297. The trial court then issued sixty-five findings of fact and
twenty-four conclusions of law. These findings included that the
invoices Hunting sent to Borusan and the purchase orders from Borusan
to Sooner were “the commercial documents that govern[ed] the
relationship between the parties,” but the court did not separately

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include a finding or conclusion that the invoices Hunting sent to
Borusan were valid and enforceable contracts. Six months later, the
trial court signed a final judgment identical to the partial judgment (i.e.,
including the valid-and-enforceable-contract finding), which also
included an award of attorney’s fees to Hunting.
Borusan appealed. Relevant here is Borusan’s argument that “the
trial court reversibly erred when it held that Borusan must indemnify
Hunting.” The court of appeals held that Borusan forfeited this argument
by inadequately briefing whether the invoices Hunting sent to Borusan
were valid and enforceable contracts. ___ S.W.3d ___, ___, 2023 WL
5487433, at *10 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023). 1 The
court stated that Borusan “cite[d] no authority in support of its argument
that it does not owe Hunting contractual indemnity and provide[d] no
legal analysis as to why the invoices are not valid and enforceable
contracts.” Id. The court “decline[d] to perform the research and analysis”
that it believed Borusan failed to provide. Id. (citing TEX. R. APP. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”)).
Borusan moved for rehearing, which the court of appeals denied.
Borusan petitioned this Court for review, challenging only the court of

1 The court of appeals and the parties describe the purported briefing

inadequacy as “waiver.” As we recently noted in Bertucci v. Watkins, what is
at issue here is “forfeiture,” which is the “failure to make the timely assertion
of a right.” 709 S.W.3d 534, 541 n.5 (Tex. 2025) (quoting United States v. Olano,
507 U.S. 725, 733 (1993)). By contrast, “waiver” involves an “intentional
relinquishment or abandonment of a known right.” Id. (emphasis added)
(quoting Olano, 507 U.S. at 733). The distinction is significant in some
circumstances, but the term “waiver” is often used to cover forfeiture as well,
especially when, as here, the analysis does not turn on the distinction.

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appeals’ holding that it had forfeited its indemnity argument.
The trial court’s interlocutory and final judgments each
included—but its separate findings of fact and conclusions of law
omitted—the court’s determination that the contracts were valid and
enforceable. The court of appeals referred to this seemingly legal
determination as a “finding of fact.” See id. 2 In this Court, the parties
appear to accept this characterization, and neither party disputes that
Borusan bore the burden of lodging a sufficient challenge to the “finding
of fact” before the court of appeals. For purposes of today’s decision,
therefore, we likewise assume this to be true. Based on that premise,
Borusan challenges the court of appeals’ conclusion that Borusan has
forfeited its challenge to the finding. The dispute therefore reduces to
whether Borusan adequately briefed why the invoices are not valid and
enforceable contracts. 3

2 Specifically, if the determination constitutes a “finding of fact,” then

Rule 299a applies, which is why the court of appeals discussed and applied
that rule. The rule states that “[f]indings of fact must not be recited in a
judgment.” TEX. R. CIV. P. 299a. The rule then says that “[i]f there is a conflict
between findings of fact recited in a judgment in violation of this rule and
findings of fact made pursuant to Rules 297 and 298, the latter findings will
control for appellate purposes.” Id. The court of appeals interpreted this rule
to mean that the finding made later in time would control. See ___ S.W.3d at
___, 2023 WL 5487433, at *10 (“[T]he trial court’s finding in the judgment
controls because the judgment was issued after its findings of fact and
conclusions of law.” (citing TEX. R. CIV. P. 299a)). The rule’s reference to the
“latter findings” (as opposed to later findings), however, points to “findings of
fact made pursuant to Rule 297 and 298.” In any event, because neither party
has contested the court of appeals’ approach, we need not resolve any
discrepancy between it and Rule 299a.
3 We likewise note but express no view regarding a related issue that

appears to have generated division in the lower courts. Specifically, when a

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In Bertucci v. Watkins, we recently reaffirmed our general
disapproval of summarily dismissing issues based on procedural defects
and encouraged resolving cases on the merits instead. 709 S.W.3d 534,
542-43 (Tex. 2025); see also, e.g., Perry v. Cohen, 272 S.W.3d 585, 587
(Tex. 2008) (“[A]ppellate courts should reach the merits of an appeal
whenever reasonably possible.”). Of course, an issue can be forfeited or
waived, but a finding of insoluble forfeiture or waiver should be a last
resort. We think that, as in Bertucci, Borusan’s brief preserved the issue
by adequately challenging the trial court’s determination that there is
no valid and enforceable contractual basis to require it to indemnify
Hunting.
As Borusan points out, its brief presented roughly five pages of
argument on the issue of why it did not agree to indemnify Hunting. It
argued, for example, that its terms and conditions stated that they were
the only terms between the parties, meaning that the terms in Hunting’s
invoices never formed part of the agreement in the first place.
Specifically, it argued that no evidence “reflect[ed] that Borusan ever
bound itself to the Hunting” terms and conditions because, among other
things, it never “expressly agreed to them in writing.” These arguments,
along with others in Borusan’s brief in the court of appeals, constitute

trial court violates Rule 299a by adding findings in a final judgment, some courts
of appeals appear to disregard the findings altogether, which leads to affirmance
on any basis supported by the record. See, e.g., R.S. v. B.J.J., 883 S.W.2d 711,
715 & n.5 (Tex. App.—Dallas 1994, no writ). Other courts hold that “findings
in a judgment have probative value as long as they do not conflict with those
in a separate document.” See, e.g., Hill v. Hill, 971 S.W.2d 153, 157 (Tex.
App.—Amarillo 1998, no pet.). We reserve any resolution of the apparent
division in the lower courts for a future case that properly implicates it.

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challenges to the “finding” that Hunting’s invoices were valid and
enforceable contracts. They preserve Borusan’s key appellate issue.
The court of appeals noted that Borusan’s briefing did not contain
case law or statutory citations. But Borusan provided ample record
citations, including of documents, testimony, and the trial court’s findings
of fact and conclusions of law. Not every issue in a party’s brief will rely
on guidance from cases or statutes. Although we agree that it will be
rare that no case or statute would be useful to cite, there is no inherent
minimum quotient of statutory or case-law citations that must be met
before a brief can be found to adequately preserve an issue. A party
need not conjure up marginally related statutes or cases just to avoid a
finding of forfeiture. See TEX. R. APP. P. 38.1(i) (requiring “appropriate
citations to authorities and to the record” (emphasis added)).
On the other hand, the difference between preserving an issue
and pressing that issue persuasively can be significant. As we noted in
Bertucci, sometimes “briefing may be adequate to preserve an issue but
insufficient to properly assist an appellate court.” 709 S.W.3d at 542.
In such cases, a court may order additional briefing under Rule of
Appellate Procedure 38.9(b) to “assist it in performing its function,” id.,
or it may resolve the case on the merits in light of the briefing it already
has, see id. at 542 n.9 (“[I]f the briefing does not make arguments the
court finds persuasive, its decision on an issue may reflect that
failure.”). Rule 38.9’s authorization of supplemental briefing “provides
a tool to assist the court in performing its appellate function; it does not
burden the court with an obligation to allow a party an additional bite
at the briefing apple.” Id.

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On remand, therefore, the court of appeals may order
supplemental briefing if it identifies specific deficiencies in Borusan’s
briefing that, if remedied, would assist the court. Or it may simply
resolve the case on the merits with the briefing before it. The court
certainly is not obligated itself to perform, and is indeed forbidden from
performing, the task of litigating the case on any party’s behalf. But it
was error to deem Borusan’s appellate issue forfeited and thus incapable
of a merits resolution.
We therefore hold that Borusan did not forfeit its argument that
the trial court erred when it rendered a declaratory judgment requiring
Borusan to indemnify Hunting. Accordingly, without hearing oral
argument, we grant the petition for review, reverse the court of appeals’
judgment, and remand the case to the court of appeals to consider the
issue on the merits. See TEX. R. APP. P. 59.1, 60.2(c).

OPINION DELIVERED: June 27, 2025

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