Hon. Michael Massengale (Former) joins JAMS after serving as an appellate justice on the First Court of Appeals in Houston. Justice Massengale has participated in the resolution of thousands of appeals and has written more than 600 signed opinions in a wide range of legal disputes. During his time on the bench, he was known for his strong work ethic, well-reasoned opinions and careful textualist approach to interpreting statutes and contracts. His legal opinions have an excellent record of success on review in the Supreme Court of Texas. He handled a range of complex matters involving commercial and contractual disputes in various industries, including construction, employment, financial services, government, health care, oil and gas, and professional liability. Since he left full-time judicial service, appellate practitioners have sought out Justice Massengale’s assistance for appellate moot arguments and consultation on numerous appellate matters in federal courts of appeals, the Supreme Court of Texas and intermediate Texas appellate courts, including mandamus and interlocutory appellate relief.

Before his appointment to the appellate court, Justice Massengale practiced law as a trial partner at Baker Botts. He focused primarily on complex commercial disputes in the areas of commercial, securities, bankruptcy, antitrust, tax and tort litigation, predominantly representing clients in energy-related industries.

Justice Massengale serves by appointment of the Supreme Court of Texas as a commissioner on the Texas Access to Justice Commission, which develops and implements initiatives designed to expand access to, and enhance the quality of, justice in civil legal matters for low-income Texans. He is a fellow of the Texas and Houston Bar Foundations and an elected member of the American Law Institute.

ADR Experience and Qualifications

Justice Massengale has extensive experience in the resolution of complex commercial and contractual disputes across various practices and industries, including:

• Appellate
• Arbitration
• Banking
• Business and Commercial
• Construction
• Employment
• Energy and Utilities
• Health Care
• Governmental Entities
• Insurance
• Oil and Gas
• Personal Injury/Torts
• Professional Liability
• Real Property
  
  

Justice Massengale has extensive experience on both sides of the bench, having represented clients as an advocate in trials and arbitrations during his time in private practice and having authored hundreds of appellate opinions.

Representative Matters

• Arbitration
• S.C. Maxwell Family P’ship, Ltd. v. Kent, 472 S.W.3d 341 (Tex. App.—Houston [1st Dist.] 2015, no pet.): Affirming denial of motion to compel arbitration when movant disputed formation of alleged contract containing arbitration clause and therefore could not satisfy statutory burden to prove existence of agreement to arbitrate
• Schlumberger Tech. Corp. v. Baker Hughes Inc., 355 S.W.3d 791 (Tex. App.—Houston [1st Dist.] 2011, no pet.): Exercising jurisdiction over appeal from interlocutory order denying motion to compel arbitration and confirming sitting arbitration tribunal’s jurisdiction to determine arbitrability of particular disputes
• W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., No. 01-12-00313-CV, 2013 WL 978263 (Tex. App.—Houston [1st Dist.] Mar. 12, 2013, pet. denied): Affirming trial court’s confirmation of arbitral award and rejection of arguments under FAA that arbitrator was biased and exceeded authority by making mistakes of law and fact
• Served as arbitrator on two matters related to fraud claims and claims under California consumer protection, unfair competition, and false advertising statutes against a company providing online services
• Served as arbitrator on a matter related to claims of breach of contract and the duty of good faith and fair dealing under California law, which also included an arbitrability dispute, against a company providing online services
• Represented a major oil-and-gas company in a dispute over the interpretation of a tax sharing agreement dispute, in an ad hoc arbitration and in related Delaware Chancery Court litigation
• Represented litigants in several NASD arbitrations involving claims against banks and financial advisors
• Banking
• Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462 S.W.3d 128 (Tex. App.—Houston [1st Dist.] 2015, no pet.): Applying Uniform Commercial Code (UCC) to resolve customer dispute with bank over responsibility for bookkeeper’s unauthorized transactions
• Morlock, L.L.C. v. Bank of New York, 448 S.W.3d 514 (Tex. App.—Houston [1st Dist.] 2014, pet. denied): Affirming declaratory judgment in favor of mortgage lender in residential home foreclosure dispute
• Vazquez v. Deutsche Bank Nat. Tr. Co., N.A., 441 S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2014, no pet.): Reversing dismissal of homeowner’s challenge to home foreclosure for purported lack of standing
• Business & Commercial
• Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 417 S.W.3d 46 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Reversing awards of damages against limited partners, as purported alter egos, for contract liability of limited partnership
• Saden v. Smith, 415 S.W.3d 450 (Tex. App.—Houston [1st Dist.] 2013, pet denied): In dispute between shareholders of closely held corporation, affirming liability finding for breach of fiduciary duty, and partially vacating damages to the extent awarded in violation of one-satisfaction rule
• Sonwalkar v. St. Luke’s Sugar Land P’ship, L.L.P., 394 S.W.3d 186 (Tex. App.—Houston [1st Dist.] 2012, no pet.): Interpretation of voting provisions of partnership agreement in context of attempted termination of individual doctors’ interests in hospital partnership
• Represented board of directors of major oil-and-gas company in jury trial of shareholder class action alleging breach of fiduciary duties in sale of company to major international oil-and-gas company, primarily involving valuation of company
• Represented corporate audit committees in Delaware Chancery Court litigation challenging mergers and acquisitions in the energy industry
• Represented publicly traded companies, primarily in the energy industry, in class-action securities fraud cases
• Construction
• CCC Group, Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191 (Tex. App.—Houston [1st Dist.] 2014, no pet.): Construction dispute over collapsed cement-storage warehouse; held evidence sufficient to support breach of contract and causation findings, but insufficient to support jury’s award of damages for future repair costs
• CBM Engineers, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Cross-appeals over application of certificate-of-merit requirements to various damages claims arising from design and construction of retreat and conference center
• Carter & Burgess, Inc. v. Sardari, 355 S.W.3d 804 (Tex. App.—Houston [1st Dist.] 2011, no pet.): Application of certificate-of-merit requirement to allegations of negligent project management by architectural firm
• Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325 S.W.3d 692 (Tex. App.—Houston [1st Dist.] 2010, pet. denied): Construction insurance dispute; interpretation of waiver-of-subrogation clause
• Employment Law
• Texas Dep’t of Family & Protective Services v. Mitchell, 510 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2016, no pet.): Affirming denial of state agency’s claim of sovereign immunity against claim of retaliatory discharge
• Schlumberger Ltd. v. Rutherford, 472 S.W.3d 881 (Tex. App.—Houston [1st Dist.] 2015, no pet.): Affirming denial of motion to dismiss allegations that in-house counsel misappropriated trade secrets based on evidence establishing prima facie case
• Miles v. Lee Anderson Co., 339 S.W.3d 738 (Tex. App.—Houston [1st Dist.] 2011, no pet.): Race and national-origin discrimination suit
• Energy & Utilities
• Tanya L. McCabe Trust v. Ranger Energy LLC, 531 S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2016, pet. denied): Interpretation of legislative revisions to correction-instrument statutes in the Texas Property Code as applied to oil-and-gas leases
• Rosenthal v. Doherty & Doherty, L.L.P., No. 01-12-01017-CV, 2014 WL 953547 (Tex. App.—Houston [1st Dist.] Mar. 11, 2014, no pet.): Dispute over payment for repairs to oil drilling rig
• In re Valero Ref.-Texas, LP, 415 S.W.3d 567 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding): Granting mandamus relief in dispute over appraisal district’s discovery request for oil refinery’s trade secrets relevant to property valuation
• In re Hardwick, 426 S.W.3d 151 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding): Venue dispute in litigation between oil-and-gas production company and former landman
• Represented various energy utilities, including generation, transmission, distribution and sale of electric power, as well as retail delivery of natural gas
• Governmental Disputes
• ETC Mktg., Ltd. v. Harris County Appraisal Dist., 476 S.W.3d 501 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 528 S.W.3d 70 (Tex. 2017): Affirming appraisal of value of stored natural gas
• In re Valero Ref.-Texas, LP, 415 S.W.3d 567 (Tex. App.—Houston [1st Dist.] 2013, no pet.): Dispute over discovery of trade secrets in ad-valorem tax valuation dispute
• State v. Momin Properties, Inc., 409 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Gas station’s inverse condemnation claim arising from construction of overpass
• Health Care
• Patel v. St. Luke’s Sugar Land P’ship, L.L.P., 445 S.W.3d 413 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Requiring issuance of injunction to preserve status quo pending resolution of management dispute between doctors and hospital
• Sonwalkar v. St. Luke’s Sugar Land P’ship, L.L.P., 394 S.W.3d 186 (Tex. App.—Houston [1st Dist.] 2012, no pet.): Interpretation of voting provisions of partnership agreement in context of attempted termination of individual doctors’ interests in hospital partnership
• Methodist Hosp. v. German, 369 S.W.3d 333 (Tex. App.—Houston [1st Dist.] 2011, pet. denied): Reversing medical malpractice judgment against hospital based on insufficient evidence that patient’s treatment was adversely affected by actions of nurses or by failure to train them
• In re Higby, 325 S.W.3d 740 (Tex. App.—Houston [1st Dist.] 2010, orig. proceeding): Medical peer review communications privilege dispute
• Insurance
• Mid-Continent Cas. Co. v. Krolczyk, 408 S.W.3d 896 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Rendering declaratory judgment that insurer owed duty to defend under commercial general liability (CGL) policy
• In re Texas Windstorm Ins. Ass’n, 417 S.W.3d 119 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding): Trial court abused discretion by disqualifying insurer’s attorney for purported conflict of interest based on attorney’s prior relationship and communications relating to insurance law with claimant’s attorney
• Oleksy v. Farmers Ins. Exch., 410 S.W.3d 378 (Tex. App.—Houston [1st Dist.] 2013, pet. denied): Reversing summary judgment that homeowner’s insurance policy did not cover snowmobile accident and that insurer had no duty to defend or indemnify the insured
• Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325 S.W.3d 692 (Tex. App.—Houston [1st Dist.] 2010, pet. denied): Construction insurance dispute; interpretation of waiver-of-subrogation clause
• Represented litigant in dispute over interpretation of offshore energy package policy as applied to hurricane-damaged offshore platform and well
• International & Cross-Border
• Bautista v. Trinidad Drilling Ltd., 484 S.W.3d 491 (Tex. App.—Houston [1st Dist.] 2016, no pet.): Affirming special appearance granted in favor of drilling company’s Canadian indirect parent company
• Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., 472 S.W.3d 744 (Tex. App.—Houston [1st Dist.] 2015, no pet.): Affirming forum non conveniens dismissal of tortious interference claim against Italian oil company relating to Togolese drilling prospect
• Richardson v. Newman, 439 S.W.3d 538 (Tex. App.—Houston [1st Dist.] 2014, no pet.): Affirming forum non conveniens dismissal of shareholder derivative suit against Swiss offshore-drilling company
• Represented domestic mining company in multi-billion-dollar fraudulent claim against its foreign corporate parent, primarily involving the valuation of a controlling interest in a foreign mining company
• Represented foreign government official against tort claims filed in the United States
• Personal Injury/Torts
• Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165 (Tex. App.—Houston [1st Dist.] 2012, pet. denied): Denial of workers’ compensation claim did not bar subsequent wrongful-death claim based on allegation of employer’s gross negligence
• Airgas-Sw., Inc. v. IWS Gas & Supply of Texas, Ltd., 390 S.W.3d 472 (Tex. App.—Houston [1st Dist.] 2012, pet. denied): Holding evidence legally insufficient to support claim for malicious prosecution due to lack of evidence of special injury
• Richards v. Transocean, Inc., 333 S.W.3d 326 (Tex. App.—Houston [1st Dist.] 2010, no pet.): Reversing summary judgment in suit alleging negligent failure to provide safe workplace on offshore drilling rig
• Represented litigants in energy-industry-related personal-injury claims
• Professional Liability
• Arbitration of dispute between an international legal provider and a departed partner over payment of a bonus, requiring interpretation of the firm’s partnership agreement and analysis of ethical rules applicable to the legal profession
• In re Haynes & Boone, LLP, 376 S.W.3d 839 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding): Confirming state court jurisdiction over claim of attorney malpractice in federal antitrust matter
• Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301 (Tex. App.—Houston [1st Dist.] 2011, no pet.): Referral-fee dispute
• Real Property
• Vance v. Popkowski, 534 S.W.3d 474 (Tex. App.—Houston [1st Dist.] 2017, pet. denied): Enforcement of residential deed restriction and associated nonwaiver provision, prohibiting operation of a business from a single-family residence
• Wheelbarger v. Landing Council of Co–Owners, 471 S.W.3d 875 (Tex. App.—Houston [1st Dist.] 2015, pet. denied): Dispute between condominium owners and association board regarding repairs to hurricane damage
• Internacional Realty, Inc. v. 2005 RP W., Ltd., 449 S.W.3d 512 (Tex. App.—Houston [1st Dist.] 2014, pet. denied): Interpretation of “put” remedy specified by commercial real estate purchase agreement

Honors, Memberships, and Professional Activities

Completed Virtual ADR training conducted by the JAMS Institute, the training arm of JAMS.

Memberships and Affiliations

Selected Awards and Honors

• Recipient, Jim D. Bowmer Professionalism Award, Texas Bar College, 2023
• Big Suits, The American Lawyer
  • Recognition for trial victory on a fraudulent transfer claim in ASARCO v. Americas Mining Corporation, resulting in a judgment valued between $7 and $10 billion (June 2009)
  • Recognition for jury trial victory defending a shareholder class action suit against the former directors of Pennzoil arising from the sale of company to Shell (January 2006)
• President’s Award for Outstanding Service, Houston Bar Association, 2012
• Texas Rising Star, Law & Politics, 2004–2010
• Outstanding Editor Award, Texas Law Review, 1997

Selected Publications

• “Engaging the Law: A Profile of Justice Michael Massengale,” Houston Bar Association Appellate Lawyer (Sept. 15, 2016)
• “Introduction to Researching Texas Constitutional History Online,” Journal of the Texas Supreme Court Historical Society (Spring 2015)
• “Riotous Uncertainty: A Quarrel With the ‘Commentators’ Rule’ Against Section 1441(c) Removal for Counterclaim, Cross-Claim, and Third-Party Defendants,” 75 Texas L. Rev. 659 (1997)

Background and Education

• Massengale PLLC, Houston, 2019–present
• Founder
• First Court of Appeals, Houston, 2009–2018
• Justice, 2009-2018
• Baker Botts, Houston, 1999–2009
• Partner, 2007–2009
• Associate, 1999–2006
• Law Clerk to Judge Harold R. DeMoss, Jr., U.S. Court of Appeals for the Fifth Circuit, 1997–1999
• J.D., with honors, University of Texas School of Law, 1997
• Book Review Editor, Texas Law Review (Vol. 75)
• Order of the Coif
• A.B., Dartmouth College, 1994