Preston Marshall was a vice president of MarOpCo, Inc., a family business, under a written at-will employment contract signed for the company by its president, his mother Elaine T. Marshall, until she fired him in June 2015. His brother, E. Pierce Marshall, Jr., was also a vice president and the company's general counsel.¹ Preston and Rusk Capital Management, L.L.C., an entity he controls, sued MarOpCo, Pierce Jr., MarOpCo's outside counsel and others, asserting wrongful termination, breach of contract, tortious interference, privacy violations, conversion, trespass to chattel, harmful access by computer, trade secret misappropriation, breach of fiduciary duty, fraud theories, conspiracy, and declaratory relief. MarOpCo counterclaimed for breach of contract, breach of fiduciary duty, and trespass.²

Preston nonsuited his claims against the outside lawyer, his firm and Trof, Inc. The 11th District Court of Harris County (Judge Kristen Brauchle Hawkins) granted summary judgment on all claims against Pierce Jr. and on most claims against MarOpCo, then held a bench trial and rendered a take-nothing judgment on Preston's remaining claims, awarding MarOpCo disgorgement, nominal damages, other equitable relief and attorney's fees and expenses, with extensive findings of fact and conclusions of law. Petitioners say the court awarded only nominal damages but $10 million in attorney's fees and ordered Preston to disgorge a year's salary.¹ The First Court of Appeals (Morgan, J., joined by Adams, C.J., and Guerra, J.) affirmed in full in a 99-page opinion, holding some of petitioners' seventeen appellate issues inadequately briefed and affirming others on the merits, for failure to challenge independent grounds, or for failure to challenge supporting findings. Marshall v. MarOpCo, Inc., 714 S.W.3d 724 (Tex. App.⁠—Houston [1st Dist.] 2025, pet. filed).² Petitioners filed their petition on July 14, 2025, respondents answered October 22, 2025, and the Court requested briefs on the merits. Petitioners filed their brief on May 1, 2026 and respondents filed theirs on July 22, 2026; petitioners' reply brief is not yet on file, with an extension granted.

Petition for review from the First Court of Appeals, which affirmed a take-nothing judgment on the petitioners' claims and a judgment for MarOpCo on its counterclaims after summary judgments and a bench trial. The Court has requested briefs on the merits; the petitioners' reply brief is not yet on file, and the Court has not yet granted the petition.

Petitioners present one issue: whether the court of appeals erred by refusing to reach the merits of nearly all of petitioners' most important appellate complaints.¹ MarOpCo frames the issues as whether the court of appeals properly disposed of three of the seventeen-plus issues, namely trespass, disgorgement and attorney's fees, and whether petitioners abandoned any other challenge by not briefing it in this Court.² Pierce Jr. presents whether the court of appeals correctly held that the fiduciary-duty challenge was inadequately briefed because the relevant sections cited no law or record, and whether his attorney-immunity argument as to other claims was inadequately briefed in a single footnote.³

Petitioners (Preston Marshall and Rusk Capital Management, L.L.C.): Appellate courts must decide cases on the merits whenever possible, and the court of appeals found "insoluble forfeiture" more than a dozen times on issues that were preserved and often extensively briefed, contrary to Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC, 716 S.W.3d 572 (Tex. 2025), and Horton v. Stovall. They argue the court refused to reach the disgorgement challenge by relying on a court-made waiver doctrine that has no foundation in Rules 298 and 299: failing to request additional findings does not bar a sufficiency challenge to express or deemed findings. They contend the fee waiver rested on a factual error now conceded by respondents, that the court wrongly treated their failure-to-segregate and reasonableness arguments as waived, and that the court also avoided the merits on MarOpCo's trespass claim, the fiduciary-duty claim against Pierce Jr. and their other claims against him. They ask the Court to reverse the summary judgments for MarOpCo and Pierce Jr., the trial rulings on contract, fiduciary duty, conversion, computer and data ownership and trespass, and the denial of a jury, and to render a take-nothing judgment on fees and disgorgement or remand.¹

Respondent (MarOpCo, Inc.): The court of appeals did not duck the merits; it worked methodically through a "kitchen-sink" appeal and reached the merits when reasonably possible, including holding that MarOpCo was the prevailing party and that the disgorgement start date was not arbitrary. Preston's four-sentence trespass argument could not support a legal or factual sufficiency challenge, his disgorgement arguments were confused and the First Court reasonably construed them, the court never held that a party waives sufficiency challenges by not requesting additional findings, and he did not adequately brief reasonableness or segregation of fees. MarOpCo also argues petitioners abandoned any challenge to holdings they did not brief in this Court.²

Respondent (E. Pierce Marshall, Jr.): This Court is lenient about briefing waiver, but this case exceeds even those standards: the fiduciary-duty challenge cited no legal or factual authority, and the attorney-immunity argument appeared in one footnote without citations, in a different section of the brief. The court of appeals therefore correctly affirmed summary judgment on the fiduciary-duty claim and on the other claims against him.³

Petitioners say the court of appeals disregarded the Court's repeated directive, restated in Borusan, that waiver is a last resort, and that review is needed to repudiate what they call an atextual doctrine, expanded by appellate courts from Rule 298, under which failing to request additional findings supposedly bars any sufficiency challenge to findings on that claim or defense.¹

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