Adequate Appellate Briefing and the “No Minimum Citation Requirement” under Texas Rule 38.1(i): Commentary on Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC

Adequate Appellate Briefing and the “No Minimum Citation Requirement” under Texas Rule 38.1(i):
Commentary on Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC

I. Introduction

The Supreme Court of Texas’s per curiam opinion in Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC, No. 24‑0183 (Tex. June 27, 2025), is formally about indemnity and “battle of the forms” in a commercial contract dispute. But the Court deliberately avoids the substantive contract issue and instead addresses a procedural question of broad systemic importance: When does an appellate brief inadequately “argue” an issue such that the issue is forfeited under Texas Rule of Appellate Procedure 38.1(i)?

The Fourteenth Court of Appeals held that Borusan forfeited its argument that it did not owe contractual indemnity to Hunting because its brief supposedly failed to provide legal authority and adequate legal analysis on whether Hunting’s invoices were “valid and enforceable contracts.” The Texas Supreme Court reversed, holding that Borusan’s five pages of argument and extensive record citations were sufficient to preserve the issue, even though the brief contained no case or statutory citations on that particular point.

In doing so, the Court crystallizes a significant procedural principle: Texas Rule of Appellate Procedure 38.1(i) does not impose any “minimum quotient” of case-law or statutory citations as a prerequisite for preserving an issue on appeal. An issue may be preserved by clear argument and record citation alone, even if authority is sparse, and courts should reserve findings of forfeiture for truly deficient briefing, using supplemental briefing under Rule 38.9(b) when clarification is needed.

This commentary examines the factual setting, the appellate history, the Supreme Court’s reasoning, its reliance on and development of prior precedents, and the implications for Texas appellate practice and commercial litigation.

II. Factual and Procedural Background

A. The Commercial Relationship and the “Battle of the Forms”

The dispute arises in a complex commercial chain in the oilfield pipe industry:

  • Borusan Mannesmann Pipe US, Inc. (“Borusan”) manufactures steel pipes.
  • Hunting Energy Services, LLC (“Hunting”) provides “swaging” (expanding pipes) and “threading” (connecting pipes) services.
  • Sooner Pipe LLC (“Sooner”) is a pipe distributor.
  • Concho Resources, Inc. (“Concho”) is the end user that ultimately experienced pipe failures.

The transactional sequence:

  1. Sooner orders threaded pipe from Borusan.
  2. Borusan issues purchase orders to Hunting for Hunting’s connectors and threading services.
  3. Those purchase orders incorporate Borusan’s terms and conditions, which:
    • Require Hunting to indemnify Borusan for pipe defects; and
    • State that any additional or differing terms in Hunting’s documents are rejected unless expressly accepted in writing by an authorized Borusan representative.
  4. Hunting swages and threads Borusan’s pipes and delivers them to Sooner.
  5. After delivery, Hunting invoices Borusan, and those invoices state that Hunting’s “terms and conditions apply as stated at Hunting‑Intl.com.”
  6. Borusan then invoices Sooner, stating that delivery is:
    • “Subject to Borusan’s standard terms and conditions,” and
    • “Subject also to Hunting’s general terms and conditions of sale,” with all such conditions attached.

Hunting’s terms and conditions include a broad, all‑caps indemnity provision under which the buyer must defend and indemnify the seller from “any and all claims which arise out of the performance of the contract.” This clashes directly with Borusan’s own terms requiring Hunting to indemnify Borusan.

The case thus presents a classic “battle of the forms” scenario: Whose terms and conditions control, and does Borusan owe indemnity to Hunting, or vice versa?

B. The Underlying Defect and Litigation

Sooner sells the threaded pipes to Concho. During drilling, Concho discovers holes in the pipes, leading to abandoned wells and significant damages. Each upstream commercial participant blames the other:

  • Hunting contends it is not responsible and seeks to shift or avoid liability.
  • Borusan alleges that defects are attributable to Hunting’s processing.

Hunting sues Borusan asserting:

  • Breach of contract,
  • Negligence,
  • Fraud,
  • Negligent misrepresentation,
  • Breach of warranty, and
  • A request for declaratory judgment that Borusan must indemnify Hunting.

Borusan counterclaims for:

  • Breach of contract,
  • Breach of warranty, and
  • A declaratory judgment that Hunting must indemnify Borusan.

C. The Trial Court’s Judgments and Findings

After trial, the district court rules almost entirely in Hunting’s favor. In a partial judgment, it:

  • Concludes Hunting has no obligation to indemnify Borusan, and
  • Declares that Borusan must indemnify Hunting.

Critically, the partial judgment also recites that:

  • The purchase orders from Borusan to Hunting,
  • The invoices from Hunting to Borusan, and
  • The purchase orders and invoices between Borusan and Sooner

are all “valid and enforceable contracts” and are the “commercial documents that govern the relationship between the parties.”

Borusan timely requests separate findings of fact and conclusions of law under Texas Rules of Civil Procedure 296 and 297. The court issues:

  • 65 findings of fact and
  • 24 conclusions of law.

In these separate findings, the court:

  • States that the invoices from Hunting to Borusan and the purchase orders from Borusan to Sooner are the “commercial documents that govern the relationship between the parties,”
    but
  • Does not separately state that the invoices from Hunting to Borusan are “valid and enforceable contracts.”

About six months later, the court signs a final judgment, identical to the partial judgment as to merits, again including the “valid and enforceable contracts” language and adding an award of attorney’s fees to Hunting.

D. The Court of Appeals’ Decision

On appeal to the Fourteenth Court of Appeals, one of Borusan’s principal issues is that the trial court “reversibly erred when it held that Borusan must indemnify Hunting.”

The court of appeals, however, does not reach the merits of the indemnity question. Instead, it holds:

  • The trial court’s determination that the invoices were “valid and enforceable contracts” is a finding of fact embedded in the judgment.
  • Under Texas Rule of Civil Procedure 299a (governing the relationship between findings in a judgment and separate findings), that finding of fact in the judgment is controlling.
  • Borusan purportedly forfeited any challenge to that finding by inadequately briefing the issue.

Specifically, the court of appeals states that Borusan:

  • “cites no authority in support of its argument that it does not owe Hunting contractual indemnity” and
  • “provides no legal analysis as to why the invoices are not valid and enforceable contracts.”

Citing Texas Rule of Appellate Procedure 38.1(i), the court “decline[s] to perform the research and analysis” that Borusan allegedly failed to provide, and thus treats the indemnity issue as forfeited.

Borusan moves for rehearing, unsuccessfully, and then petitions for review to the Texas Supreme Court, challenging only the holding that it had forfeited its indemnity argument.

III. Summary of the Supreme Court’s Opinion

The Supreme Court of Texas reverses and remands, holding that:

  1. Borusan’s appellate briefing was sufficient to preserve its argument that it did not owe indemnity to Hunting, even though its briefing on that issue did not cite any statutes or cases.
  2. Rule 38.1(i) does not impose a “minimum quotient” of legal authorities that must be cited to avoid forfeiture. A party need not manufacture marginally relevant citation lists simply to avoid a waiver/forfeiture finding.
  3. Distinguishing preservation from persuasion: briefing that is “adequate to preserve an issue” may nonetheless fail to be fully persuasive or fully helpful to the court; in such situations, the court may:
    • Request supplemental briefing under Rule 38.9(b), or
    • Decide the case on the merits based on the existing briefing, even if the arguments are unpersuasive.
  4. Appellate courts should decide cases on the merits whenever reasonably possible, and forfeiture based on briefing defects should be a last resort, not a routine disposition.
  5. The court does not reach:
    • Whether the “valid and enforceable contract” language is properly a “finding of fact” or a conclusion of law, or
    • How Rule 299a should apply when a judgment contains findings that differ from findings issued under Rules 297–298, given an apparent split among intermediate courts.
    Those questions are expressly reserved for another day.

The Court remands to the Fourteenth Court of Appeals to decide, on the merits, whether the trial court erred in declaring that Borusan must indemnify Hunting.

IV. Detailed Analysis

A. Central Legal Issue Before the Supreme Court

The Texas Supreme Court emphasizes that its review is narrow:

  • It assumes, for purposes of this case (without deciding), that the “valid and enforceable contract” determination is a finding of fact and that Borusan bore the burden of lodging a sufficient challenge to that finding in the court of appeals.
  • The sole question is thus whether Borusan’s briefing in the court of appeals adequately challenged that finding.

Put more plainly: Did Borusan’s appellate brief do enough to keep the indemnity argument alive, or did it forfeit the issue by failing to support it adequately as required by Rule 38.1(i)?

B. Precedents and Authorities Cited

1. Bertucci v. Watkins (Tex. 2025)

The opinion relies heavily on the Court’s then‑recent decision in Bertucci v. Watkins, 709 S.W.3d 534 (Tex. 2025), to frame its approach to briefing defects. Based on the description in Borusan, Bertucci stands for several key propositions:

  • Texas courts generally disfavor disposing of appeals based on procedural defects in briefing and instead favor reaching the merits when reasonably possible.
  • An appellate court should view summary dismissal for inadequate briefing as a last resort, not the first response.
  • There is an important distinction between:
    • Briefing that is adequate to preserve an issue, and
    • Briefing that is sufficiently developed to assist the court in deciding that issue persuasively on the merits.
  • When briefing is preserved but weak, the court may:
    • Order additional briefing under Rule 38.9(b) “to assist it in performing its function,” or
    • Resolve the case on the merits and simply explain that the arguments are unpersuasive.

Borrowing from Bertucci, the Court in Borusan reiterates that Rule 38.9’s mechanism for supplemental briefing is a tool for the court’s benefit; it does not create an obligation to grant parties an “additional bite at the briefing apple.” But equally, it shows that courts have means to address deficient but curable briefing short of declaring wholesale forfeiture.

2. Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008)

The Court also cites Perry v. Cohen, where it stated that “appellate courts should reach the merits of an appeal whenever reasonably possible.” Perry is thus reaffirmed as a foundational policy statement: the Texas appellate system favors decisions on the merits over procedural defaults.

3. United States v. Olano, 507 U.S. 725 (1993)

In a footnote, the Court clarifies terminology by invoking United States v. Olano:

  • Forfeiture is the “failure to make the timely assertion of a right.”
  • Waiver is the “intentional relinquishment or abandonment of a known right.”

The opinion observes that the lower court and parties used “waiver,” but the real issue is forfeiture. Although that distinction does not control the outcome here, the Court signals the importance of correctly distinguishing unintentional procedural default (forfeiture) from intentional relinquishment (waiver).

4. Texas Rule of Appellate Procedure 38.1(i)

Rule 38.1(i) provides that a brief must contain:

“a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”

Key interpretive points in Borusan:

  • The rule requires argument supported by citations to both:
    • Authorities (cases, statutes, rules, etc.), and
    • The record.
  • However, the rule’s use of “appropriate” is critical. The Court emphasizes that:
    • There is no “inherent minimum quotient of statutory or case-law citations” that must be met.
    • Parties are not required to “conjure up marginally related statutes or cases just to avoid a finding of forfeiture.”
  • Thus, record‑based argument can satisfy Rule 38.1(i) where applicable legal principles are straightforward or uncontroversial.

5. Texas Rule of Appellate Procedure 38.9(b)

Rule 38.9(b) authorizes appellate courts to request or order additional briefing if they conclude that the existing briefing is less than adequate to assist the court. Borusan underscores that:

  • Supplemental briefing is discretionary; the rule is a tool, not a burden.
  • It may be used when:
    • Issues are preserved but the arguments are insufficiently developed, or
    • The court believes further elaboration will materially aid its decision.
  • The rule does not require courts to rescue a party that has wholly failed to raise an argument at all; but where arguments exist, it counsels against reflexive forfeiture findings.

6. Texas Rule of Civil Procedure 299a and Conflicting Findings

Rule 299a provides that:

“Findings of fact must not be recited in a judgment. … If 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.”

The Court notes, without resolving, an apparent discrepancy between the rule’s wording and the court of appeals’ application:

  • The rule speaks of “latter findings” in the sense of findings made under Rules 297–298, not necessarily those issued later in time.
  • The court of appeals, by contrast, appears to have treated the chronologically later judgment’s findings as controlling.

The Supreme Court expressly declines to resolve this interpretive question because neither party challenged the court of appeals’ use of 299a. For purposes of this case, the Court assumes that the “valid and enforceable contract” determination is a finding of fact and that Borusan had to challenge it adequately.

7. Conflicting Lower‑Court Authority on Findings in Judgments

The Court also flags a split among intermediate courts regarding how to handle findings improperly included in a judgment in violation of Rule 299a:

  • Some courts (e.g., R.S. v. B.J.J., 883 S.W.2d 711 (Tex. App.—Dallas 1994, no writ)) appear to:
    • Disregard such findings, and
    • Affirm on any basis supported by the record, without treating those findings as binding.
  • Other courts (e.g., Hill v. Hill, 971 S.W.2d 153 (Tex. App.—Amarillo 1998, no pet.)) treat findings in a judgment as having probative value so long as they do not conflict with separate findings.

Again, the Supreme Court expressly reserves this controversy for a future case that properly presents it. The signal is clear, however: the Court is aware of the divergence and may address it in a later decision.

C. The Court’s Legal Reasoning on Adequate Briefing

1. What Borusan Did in Its Brief

The opinion emphasizes the following aspects of Borusan’s appellate briefing:

  • Borusan devoted approximately five pages of argument to why it did not owe indemnity to Hunting.
  • It argued substantively that:
    • Its own terms and conditions, incorporated in its purchase orders, expressly stated they were the exclusive terms governing its relationship with Hunting.
    • Any additional or different terms (such as those in Hunting’s invoices) were “hereby rejected” unless Borusan expressly agreed to them in writing.
    • No evidence showed that Borusan ever bound itself to Hunting’s terms or “expressly agreed to them in writing.”
  • Borusan’s brief contained multiple record citations:
    • To purchase orders, invoices, and written terms and conditions,
    • To witness testimony, and
    • To the trial court’s findings of fact and conclusions of law.

In short, even without case or statutory citations, Borusan’s brief articulated a coherent legal theory supported by the transactional documents and trial record.

2. Why This Was Enough to Preserve the Issue

Applying Rule 38.1(i) in light of Bertucci and Perry, the Court concludes that:

  • Borusan’s arguments “constitute challenges to the ‘finding’ that Hunting’s invoices were valid and enforceable contracts.”
  • Those arguments “preserve Borusan’s key appellate issue.”

The core logic is:

  1. Rule 38.1(i) requires “clear and concise argument” with “appropriate citations” to authority and the record.
  2. Borusan supplied clear, specific argument and substantial record citations directly tailored to the disputed finding.
  3. Although Borusan did not cite case law or statutes, that omission does not, by itself, render its briefing inadequate for preservation purposes, because:
    • There is no “minimum quotient” of authorities that must be cited; and
    • “Not every issue in a party’s brief will rely on guidance from cases or statutes.”
  4. Therefore, the court of appeals erred in treating the lack of authority citations as dispositive, and in refusing to reach the merits.

3. Preservation Versus Persuasion

The Court is careful to distinguish:

  • Whether an issue is preserved (procedural adequacy of briefing), from
  • Whether the argument is legally persuasive (substantive merits).

As the Court explains, drawing from Bertucci:

  • Briefing may be adequate to preserve an issue but still be “insufficient to properly assist an appellate court.”
  • In such cases, courts have two main options:
    • Order additional briefing under Rule 38.9(b), or
    • Decide the issue on the merits and explain that the argument fails.
  • What the court may not do, consistent with its duty to decide cases “whenever reasonably possible,” is refuse to consider the issue at all based on a perceived insufficiency that is really about persuasiveness rather than preservation.

4. The Court’s Instructions for Remand

On remand, the Supreme Court gives the court of appeals considerable discretion:

  • The court of appeals may:
    • Order supplemental briefing if it identifies specific deficiencies in Borusan’s briefing that, if remedied, would assist its review; or
    • Proceed to decide the indemnity issue on the merits based on the existing briefs.
  • However, the court of appeals:
    • Is “not obligated itself to perform … the task of litigating the case on any party’s behalf,” and
    • May not again treat the issue as forfeited on the theory that Borusan failed to do any meaningful briefing at all.

D. Impact and Implications

1. For Texas Appellate Practice

The opinion has several immediate implications for appellate practitioners and courts:

  • No citation quota:
    • Lawyers are encouraged—but not required—to support every issue with relevant authority.
    • The absence of case law on a particular point does not automatically mean an issue is waived or forfeited, especially where counsel explains the argument and anchors it in the record.
  • Strategic use of Rule 38.9(b):
    • Courts are reminded they may request more briefing rather than summarily dismissing issues.
    • This encourages a more cooperative model of appellate adjudication, where the objective is to get to the correct legal answer, not to police briefing to the point of non‑review.
  • Higher bar for forfeiture findings:
    • Forfeiture based on briefing defects is to be a “last resort.”
    • Courts should distinguish:
      • Arguments that are wholly absent or unintelligible (which may justify forfeiture) from
      • Arguments that are merely underdeveloped or unpersuasive (which should still be decided on the merits, perhaps after supplemental briefing).
  • Better-defined role of appellate courts:
    • Courts are “forbidden” from litigating a case on a party’s behalf, but they also must not abdicate their adjudicative role simply because a brief is not ideally supported.
    • The decision reinforces the judiciary’s responsibility to decide appeals on the merits “whenever reasonably possible.”

2. For Commercial and Contract Litigation

Substantively, the underlying dispute involves:

  • Competing indemnity clauses,
  • Battle-of‑the‑forms contract formation issues, and
  • Responsibility for defects in complex supply chains.

While the Supreme Court does not reach the merits of these contract questions, its decision ensures:

  • That parties get a fair merits review of sophisticated contract disputes rather than being turned away on technical briefing rules.
  • That indemnity allocations in multi‑party commercial chains are adjudicated on substance— i.e., whose terms actually govern—rather than on whether appellate counsel assembled a case citation list.

In practice, this case encourages commercial litigants to:

  • Continue to brief thoroughly, with both legal authorities and record citations; but
  • Understand that a serious, document‑and‑record‑based argument—even if light on caselaw— should still be heard on the merits in Texas appellate courts.

3. For the Law of Findings and Rule 299a

Although the Court does not decide how to reconcile Rule 299a with the court of appeals’ treatment of the trial court’s “valid and enforceable contracts” language, it signals that:

  • There is a live doctrinal tension among intermediate courts regarding the legal effect of findings illegally embedded in judgments.
  • A future case may invite the Court to:
    • Clarify whether such findings should be disregarded, treated as probative but not binding, or harmonized with separate findings; and
    • Determine whether a determination that a written agreement is a “valid and enforceable contract” is a fact finding, a legal conclusion, or a mixed question.

For now, the Court’s decision suggests a cautious approach: do not overread findings embedded in judgments as dispositive, especially when separate findings and conclusions have been requested and entered.

4. For the Forfeiture/Waiver Distinction

By relying on Olano and Bertucci, and explicitly labeling the issue as one of forfeiture rather than waiver, the Court:

  • Encourages more precise use of terminology in Texas practice.
  • Reminds practitioners that:
    • Forfeiture can result from lack of diligence or procedural missteps, and
    • Waiver requires an intentional relinquishment of a known right.

That conceptual clarity matters in contexts such as:

  • Standards of review on appeal,
  • Scope of remand or further proceedings, and
  • Whether certain rights (e.g., constitutional claims) can be revived or are lost permanently.

V. Complex Concepts Simplified

A. “Battle of the Forms” and Contract Terms

In commercial practice, different parties often use their own pre‑printed purchase orders, invoices, and “terms and conditions.” These documents rarely match. This is known as a “battle of the forms.”

Key questions include:

  • Which document (purchase order, confirmation, invoice) is treated as the “offer” and which as the “acceptance”?
  • Do additional or different terms in the other side’s form become part of the contract?
  • What happens when one form includes an indemnity clause favoring one party, and another form includes a conflicting indemnity clause favoring the other?

Here, Borusan’s purchase orders:

  • Expressly rejected any additional or differing terms in Hunting’s documents unless expressly accepted in writing.

By contrast, Hunting’s invoices purported to impose Hunting’s website terms—including an indemnity running from buyer to seller. The courts must ultimately decide:

  • Whether Hunting’s invoice terms ever legally became part of the contract between Borusan and Hunting, and
  • Who owes indemnity under the governing documents.

B. Indemnity Clauses

An indemnity clause is a contractual provision requiring one party to compensate (indemnify) another party for specific types of loss or liability. Common features:

  • They can shift responsibility for third‑party claims (e.g., end users like Concho suing over defective pipes).
  • They may apply regardless of who was negligent, depending on wording and applicable law.

In this case:

  • Borusan’s terms appear to require Hunting to indemnify Borusan for pipe defects.
  • Hunting’s terms require the buyer to indemnify the seller (i.e., Borusan indemnifying Hunting).

The trial court’s declaratory judgment adopted Hunting’s position. The appellate question is whether that allocation of risk is supported by the actual operative contracts.

C. Findings of Fact vs. Conclusions of Law

After a bench trial, Texas trial courts often issue:

  • Findings of fact – resolving factual disputes (e.g., who said what, what documents were sent, whether a party signed something).
  • Conclusions of law – stating the legal rules applied to those facts (e.g., “these documents constitute a valid contract,” or “Party A breached its duty”).

This case sits in a gray area: is a determination that certain documents are “valid and enforceable contracts” a fact finding or a legal conclusion (or a mixed question)? The court of appeals treated it as a finding of fact. The Supreme Court assumes that classification without deciding it.

Rule 299a adds another layer: findings of fact should not be placed in the judgment itself, and where they are, conflicts between those “judgment findings” and the separately issued findings are to be resolved in favor of the latter.

D. Forfeiture vs. Waiver

The opinion clarifies two often‑confused concepts:

  • Waiver – the intentional giving up of a known right. For example, stating on the record, “We no longer wish to pursue that claim,” can be a waiver.
  • Forfeiture – failing to assert a right in a timely or proper way, even if one did not intend to give it up. For example, failing to brief an issue adequately on appeal can cause forfeiture of that issue.

Here, the Court explains that Borusan’s situation involves forfeiture, not waiver: Borusan did not intentionally relinquish its indemnity argument; the question was whether it procedurally failed to present it properly in its brief.

E. Appellate Briefing Requirements

Texas Rule of Appellate Procedure 38.1(i) demands that appellate briefs:

  • State the contentions (issues) the party is raising,
  • Provide a “clear and concise” argument supporting each contention, and
  • Include “appropriate citations” to:
    • Authorities (cases, statutes, rules), and
    • The record (transcripts, exhibits, findings).

Borusan clarifies that:

  • The rule is not a mechanical checklist—courts assess whether the briefing, taken as a whole, fairly presents the issue and supporting grounds.
  • There is no hard numeric threshold (e.g., “at least one case per issue”).
  • The focus is on whether the court can understand:
    • What is being challenged, and
    • Why the party contends the trial court erred.

VI. Conclusion

Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC is a procedural yet highly consequential decision for Texas appellate practice. The Supreme Court of Texas holds that:

  • A party does not forfeit an appellate issue merely because it fails to cite case law or statutes, so long as the brief provides a reasoned argument with appropriate record citations.
  • Rule 38.1(i) does not impose a “minimum citation requirement”; what matters is the clarity and substance of the argument, not the length of the string cite.
  • Appellate courts should reach the merits whenever reasonably possible and reserve findings of forfeiture for truly inadequate briefing.
  • Where briefing is preserved but underdeveloped, courts may seek supplemental briefing under Rule 38.9(b) or decide the issue on the merits, rather than dismissing the contention as forfeited.

Although the underlying commercial dispute—whose terms govern, and who must indemnify whom—remains to be resolved on remand, the Supreme Court’s opinion sets an important procedural precedent: Texas appeals are to be decided on substance, not on hypertechnical enforcement of briefing formalities.

By clarifying the scope of Rule 38.1(i) and reinforcing prior holdings in Perry and Bertucci, the Court reaffirms a merits‑focused approach to appellate justice. Practitioners are reminded to brief diligently, but they can take some comfort that serious, record‑based arguments will not be discarded solely for lack of case citations, preserving the integrity and accessibility of appellate review in Texas.

Case Details

Year: 2025
Court: Supreme Court of Texas

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