Jonathan Beryl Harris and his law firms entered into a joint prosecution arrangement with attorney Phillip T. Howard and Howard & Associates that governed handling and division of attorney's fees in a group of related matters. During that relationship the parties signed a Confidential Settlement Agreement (CSA) that addressed the resolution of disputes and the treatment of fees on specified cases, including the scope of the "Released Cases," the relationship between the CSA and the earlier fee-sharing agreement, and the duration and survival of Harris's asserted fee interest. Harris claims the earlier fee-sharing agreement survived; Howard and intervenors Virage Capital Management, LP and Virage SPV I LLC say the CSA superseded it and that Virage satisfied its obligations.¹

Harris sued for a declaratory judgment, and Virage intervened. After the 127th District Court of Harris County (Judge Ravi Sandill) began a bench trial, it construed the CSA as a matter of law and ended proceedings before testimony was complete; on November 14, 2022 it signed a final declaratory judgment for Howard and Virage and awarded them attorney's fees and costs.¹ The First Court of Appeals (Landau, J., joined by Hightower, J.; Goodman, J., dissenting) reversed and remanded, holding the CSA ambiguous as a matter of law and not conclusively construable on the existing record, even though, petitioners say, no party argued ambiguity or sought remand. Harris v. Howard, No. 01-22-00882-CV, 2024 WL 4885848 (Tex. App.⁠—Houston [1st Dist.] Nov. 26, 2024).² The court granted Virage's motion for en banc reconsideration to resolve a conflict within the First Court, then held that remand is precluded only if the party seeking relief disclaims it, but declined to address whether the panel opinion conflicts with precedent requiring unambiguous contracts to be enforced as written; Justice Gunn dissented from that refusal (Order of June 5, 2025).³ Virage and its co-petitioners petitioned for review on September 3, 2025, Harris responded February 5, 2026 and filed a sur-reply March 20, 2026, and the Court requested merits briefs, filed May 27 and June 16, 2026. The case was abated on June 30, 2026 after a notice of bankruptcy and reinstated on September 18, 2026; petitioners' reply brief is not yet on file.

Petition for review from the First Court of Appeals, which reversed a declaratory judgment after a bench trial and remanded for further proceedings, and then denied en banc reconsideration. The Court has requested and received merits briefing, the case was abated June 30, 2026 and reinstated September 18, 2026, and the Court has not yet granted the petition.

1. Whether a court of appeals can decide a case on grounds neither party raised and reverse and remand for a new trial when the appellant sought only rendition. 2. Whether the court of appeals erred in holding the contract ambiguous based on its view of the equities, relying on Frost National Bank v. L&F Distributors, Ltd., a reading petitioners say this Court rejected in Equinor Energy LP v. Lindale Pipeline, LLC, 731 S.W.3d 324 (Tex. 2026). 3. If a court of appeals grants en banc review, whether it must decide all issues necessary to resolve the case.¹ Harris reframes the issues as whether the CSA is ambiguous because of competing provisions on the continued effect of the fee-sharing agreement, the scope of the Released Cases and the duration of his fee interest, whether remand was proper under Rule 43.3 after the court found ambiguity and unresolved fact issues, and whether Stevens v. National Education Centers, Inc. precludes remand when no party disclaimed it.²

Petitioners (Virage Capital Management, LP, et al.): Parties are not entitled to relief they did not request, courts of appeals cannot reverse and remand when an appellant sought only rendition, and the First Court's decision to resolve the case on arguments no one raised violates the party-presentation principle. They cite courts that agree, including the Beaumont, El Paso and Amarillo courts, and courts that hold otherwise, including the Austin and Fourteenth courts, and say the en banc order joined the second group. They argue the CSA unambiguously sets out the parties' obligations, that it states it "supersedes all prior or contemporaneous agreements" on its subject matter, that Harris's focus on parentheticals is misguided, and that the panel's reliance on "inequitable" and "unreasonable" results conflicts with Equinor, which held unambiguous contracts must be enforced as written. They also contend the en banc court erred by refusing to address all issues necessary to decide the motion it granted.¹

Respondent (Jonathan Beryl Harris, et al.): The court of appeals correctly held the CSA ambiguous as a matter of law because it contains conflicting provisions about whether the fee-sharing agreement survived, uses both amendment and supersession language, and creates uncertainty about the duration of the parties' rights. Once it found ambiguity, Rule 43.3 required remand because the trial record was incomplete after a bench trial ended early and rendition would have required impermissible appellate factfinding. Stevens v. National Education Centers does not bar remand because there the party expressly rejected remand, whereas Harris never disclaimed it, and issue preservation is distinct from an appellate court's remedial authority under Pike v. Texas EMC Management LLC. Harris also argues the court of appeals resolved the issues the parties presented and did not reverse on an unassigned error.²

Petitioners assert a split among the courts of appeals on whether remand is available when only rendition was requested, a conflict with this Court's decisions requiring that unambiguous contracts be enforced as written, and the need for uniform and consistent Texas law.¹ Harris responded that the case turns on a fact-bound, record-specific application of settled law, including discretion Rule 43.3(b) authorizes after a prematurely terminated bench trial.²

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