Borusan Mannesmann Pipe US, Inc. manufactures steel pipes, and Hunting Energy Services, LLC offers services to expand ("swage") and connect ("thread") pipes; Borusan hired Hunting to swage and thread its pipes and then sold the threaded pipes to a distributor, Sooner Pipe LLC.¹ Borusan's purchase orders to Hunting included its terms, which required Hunting to indemnify Borusan for pipe defects, and rejected any "additional or differing terms" in Hunting's documents unless Borusan agreed in writing.² Hunting's invoices, sent after delivery, stated that its "terms and conditions apply as stated at Hunting-Intl.com," and those terms required the buyer to indemnify the seller.³ Sooner later sold pipe to Concho Resources, which discovered holes in the pipes, abandoned wells, and suffered significant damages, and Borusan and Hunting blamed each other.⁴

Hunting sued Borusan for breach of contract, negligence, fraud, negligent misrepresentation, and breach of warranty, and sought a declaratory judgment that Borusan must indemnify it; Borusan counterclaimed and sought a declaration that Hunting must indemnify it.¹ The trial court ruled for Hunting on all issues except attorney's fees, declared that Hunting had no obligation to indemnify Borusan and that Borusan must indemnify Hunting, and recited in its judgment that the purchase orders and Hunting's invoices were "valid and enforceable contracts" governing the parties' relationship, though its separate findings and conclusions did not include that determination.² A final judgment six months later was identical and awarded Hunting attorney's fees.³ The Fourteenth Court of Appeals held that Borusan forfeited its indemnity argument by inadequately briefing whether the invoices were valid and enforceable contracts, because it cited no authority and gave no legal analysis, and declined to perform the research itself.⁴ Borusan petitioned for review on May 29, 2024, challenging only that holding, and the Court granted review and reversed per curiam on June 27, 2025, without oral argument.⁵

Petition for review from the Fourteenth Court of Appeals after a bench trial in a commercial dispute; decided per curiam without oral argument under Rules of Appellate Procedure 59.1 and 60.2(c).⁶

Borusan presents whether the court of appeals erred in concluding that a legal-sufficiency challenge was inadequately briefed and waived when its opening brief contained extensive argument with citations to authority and the record, Hunting's response rejoined the challenge, and the court of appeals implicitly acknowledged it.¹ Hunting frames the issue as whether the court of appeals correctly held that Borusan waived the right to brief the legal consequences of there being two valid and enforceable contracts.² The Court framed it as whether Borusan adequately briefed why the invoices are not valid and enforceable contracts.³

Rule of Appellate Procedure 38.1(i) requires a brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record".¹ Appellate courts should reach the merits of an appeal whenever reasonably possible, and a finding of forfeiture should be a last resort.²

Whether Borusan forfeited its indemnity argument by inadequate briefing.

Petitioner (Borusan): Its opening brief devoted pages to explaining why the trial court could not find that the terms of Hunting's invoices bound it, including that its purchase orders limited the contract terms to those in the purchase orders and that the invoice terms would materially alter them under Uniform Commercial Code section 2.207, and its reply brief argued that Hunting's invoices could not bind it.¹ It argues that the court of appeals' statement that it cited no authority is contradicted by its briefs.²

Respondent (Hunting): The court of appeals did not hold the whole indemnity issue waived; it engaged with the merits, found a logical gap in Borusan's argument, and held Borusan waived the right to bridge it, because Borusan never addressed the legal consequences of its admission that Hunting's invoices were valid and enforceable contracts and of the possibility that two valid contracts with complementary terms existed.³ It adds that the memorandum opinion merits no review because it affects only these two private parties.⁴

Borusan argued that the court of appeals held a legal-sufficiency challenge forfeited despite extensive briefing with record and legal citations.¹ Hunting responded that the court of appeals properly applied Rule 38.1(i) and its opinion, limited to two private parties and these contracts, warrants no review.² The Court cited its recent decision in Bertucci v. Watkins disapproving summary disposal of issues on procedural defects.³

None. The docket shows no amicus filings.

Holding

Borusan did not forfeit its argument that the trial court erred in requiring it to indemnify Hunting: its roughly five pages of argument with ample record citations adequately challenged the determination that the invoices were valid and enforceable contracts, and there is no minimum quotient of statutory or case-law citations a brief must meet.¹

Reasoning

The Court noted that the lower court and parties called the problem "waiver," but what is at issue is forfeiture, the failure to timely assert a right.² Because the trial court's valid-and-enforceable determination appears in the judgment but not in its separate findings, and neither party disputed the court of appeals' treatment of it as a finding on which Borusan bore the burden, the Court assumed so and asked whether Borusan adequately briefed why the invoices are not valid contracts, reserving the question of how courts of appeals should treat findings recited in a judgment.³

Following Bertucci, the Court disapproved summarily dismissing issues for procedural defects, and found that Borusan's roughly five pages of argument, including that its terms stated they were the only terms between the parties, so Hunting's invoice terms never became part of the agreement, and that it never "expressly agreed to them in writing," preserved the issue.⁴ The court of appeals noted that the briefing contained no case or statutory citations, but Borusan gave ample record citations, and there is "no inherent minimum quotient" of citations; although it will be rare that no authority would be useful, a party need not conjure up marginally related authorities to avoid forfeiture.⁵ Briefing may preserve an issue yet be insufficient to assist the court, in which case the court may order additional briefing under Rule 38.9(b) or decide the merits on the briefing it has.⁶ On remand the court may do either, but it is forbidden from litigating the case on any party's behalf.⁷

Disposition

Without hearing oral argument, the Court granted the petition for review, reversed the court of appeals' judgment, and remanded to that court to consider the indemnity issue on the merits.⁸

Vote Breakdown

Per Curiam Opinion

Joined by Blacklock, C.J., and Bland, Boyd, Busby, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.