United States Court of Appeals

for the Fifth Circuit

___________ 

No. 21-50960

___________ 

In the Matter of Jon Christian Amberson

Jon Christian Amberson; Jon Christian Amberson PC; 

Amberson Natural Resources, LLC,

Appellants,

versus

James Argyle McAllen; El Rucio Land and Cattle 

Company, LLC; San Juanito Land Partnership, Ltd.; 

McAllen Trust Partnership,

Appellees.

______________________________ 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-1193 

______________________________ 

ON PETITION FOR REHEARING

Before Jones, Southwick, and Oldham, Circuit Judges.

*

Per Curiam:

*

Judge Oldham concurs in the denial of rehearing.

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2023

Lyle W. Cayce

Clerk
No. 21-50960

2

Jon Christian Amberson, his law firm, and Amberson Natural 

Resources (“ANR”), whom we will reference collectively as Amberson,

move for rehearing by this panel. Though successful in convincing a majority 

of the panel that we have authority to consider the argument that a claim was 

not arbitrable, Amberson then lost on the merits of that argument. Matter of 

Amberson, 54 F.4th 240, 263, 267 (5th Cir. 2022). 

Amberson alleges we erred in three ways: (1) we should not have 

considered the arbitrator’s fact findings in deciding the validity of the state 

court’s compelling of arbitration; (2) the state court record does not support 

that all the claims were intertwined; and (3) the appellees’ state court 

pleadings do not support our finding of alter ego. A component of all three is 

that when deciding whether the Amberson parties were alter egos of each 

other and whether the Cannon Grove claims were arbitrable, we should have 

considered only the record as it existed at the time the state court ordered 

arbitration in April 2018 or denied reconsideration in October 2018. 

Therefore, not only were the findings by the arbitrator irrelevant, but so is 

any evidence that did not appear in the record until the arbitration. 

One way to understand the argument is that Amberson is insisting that 

even though there was no need to pursue a writ of mandamus prior to the 

arbitration, our review after the arbitration is limited to the record that 

existed at the earlier time. Of no small importance to urging error on 

rehearing, this argument is not one that appeared in the briefs and is therefore 

forfeited. Regardless, it is wrong. 

Amberson cites no Texas caselaw that the evidence to support the 

validity of interlocutory orders reviewed on appeal after a final judgment 

must come only from the part of the record that existed when the orders were 

entered. Regardless of Texas procedure, though, in federal court an 

interlocutory order merges into the final judgment. 15A Charles Alan 
No. 21-50960

3

Wright & Arthur R. Miller, et al., Federal Practice and 

Procedure § 3905.1 (3d. ed.). We agree with the treatise that state court 

rulings made before removal should be treated similarly: “In most 

circumstances at least it is sensible to adhere to the ordinary rule that 

interlocutory rulings [by the state court] merge in the final judgment, 

permitting review by the federal court of appeals.” Id. 

We see an analogy to why, after a trial, it is irrelevant that a party could 

convince us that a pretrial, unappealable order denying summary judgment 

should instead have been granted based on the earlier, limited record. “Once 

the case proceeds to trial, the full record developed in court supersedes the 

record existing at the time of the summary-judgment motion.” Ortiz v. 

Jordan, 562 U.S. 180, 184 (2011). In this appeal, after all the proceedings 

have run their course, the questions are the arbitrability of a particular claim 

and the validity of an award against Amberson, individually. How those 

questions should have been answered early in the case before the record was 

as developed as it is now does not matter.

Finally on this point are the interests of judicial and litigants’ 

economy. “Though waiting until after the arbitration to seek appellate 

review [of the order compelling arbitration] may waste the parties’resources,

‘parties may also waste resources appealing every referral when a quick 

arbitration might settle the matter.’” Amberson, 54 F.4th at 262 (quoting 

Perry Homes v. Cull, 258 S.W.3d 580, 587 (Tex. 2008)). Even more wasteful 

would be to disregard the final-judgment record that demonstrates 

arbitration was properly compelled and reject an arbitration award because 

the earlier record did not yet so demonstrate. If review is unavailable until 

after final judgment, it is senseless not to use the final-judgment record.

We affirmed the federal district court because arbitration was properly 

compelled. The state court’s initial order did not need separate review.
No. 21-50960

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We now examine related complaints. One argument is that it is for the 

court to decide whether parties agreed to submit a particular dispute to 

arbitration. We acknowledged that principle in our discussion of a holding 

by the Supreme Court of Texas that “under the FAA, whether a nonsignatory is bound by an arbitration agreement is an issue for the court, absent 

the agreement’s clearly giving the task to the arbitrator.” Id. at 265 (citing In 

re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex. 2005)). Here, the Hidalgo 

County District Court did decide the issue. Later, this court reviewed 

whether all the Amberson parties were subject to arbitration on the Cannon 

Grove claim. Both the state court and this court decided they were.

Amberson insists we did not give de novo review to whether arbitration

should have been compelled and instead deferred to the arbitrator. The 

Texas precedent Amberson cites for the de novo standard is one we discussed 

in our opinion. See id. at 261–62 (discussing Perry Homes, 258 S.W.3d 580). 

The Perry Homes opinion held that courts are to give “ordinary review” to an 

order compelling arbitration and deferential review to the award itself. Perry 

Homes, 258 S.W.3d at 587. For the meaning of “ordinary review,” Perry 

Homes cited a United States Supreme Court opinion. Id. at 587 n.15 (citing 

First Options of Chicago, Inc. v. Kaplan., 514 U.S. 938, 947–48 (1995)). There, 

an arbitration occurred without any court compelling it; the Supreme Court 

stated no deference was to be given on appeal to the arbitrators’ conclusions 

about arbitrability. First Options, 514 U.S. at 941, 947–49. The Court held 

that under the Federal Arbitration Act, review “should proceed like review 

of any other district court decision finding an agreement between parties, e.g., 

accepting findings of fact that are not ‘clearly erroneous’ but deciding 

questions of law de novo.” Id. at 947–49.

Of course, de novo review is only for legal conclusions, and all of ours 

were the result of de novo consideration. The real complaint is we were 

deferential to the arbitrator as to facts. One of the opinion’s alleged 
No. 21-50960

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misstatements of the review standard was that “the arbitrator’s fact-findings 

relevant to whether the Cannon Grove claim was subject to the arbitration 

agreement, a claim he did not resolve, are still entitled to substantial 

deference.” Amberson, 54 F.4th at 264. Another is in the analysis of alter 

ego: “Fact findings by an arbitrator are nearly unassailable.” Id. at 263. The 

third also was part of our analysis of alter ego. A threshold question was 

whether Amberson’s arguments about alter ego had been forfeited. Id. at 

265. We did not answer that question because, regardless of the answer, the 

arbitrator’s decision that Amberson individually had to arbitrate the Cannon 

Grove matter “must stand.” Id.

We now examine how these statements affected our analysis. On the 

agreement’s scope, Amberson argues we relied on the arbitrator’s findings 

on the merits of the claim, such as the finding Amberson had misappropriated 

funds, in holding that the Cannon Grove claim was intertwined with other

arbitrable matters. Amberson’s briefing, though, did not meaningfully 

dispute the accuracy of the arbitrator’s fact-findings. The arbitrator’s 

opinion contained the best summary of the facts. Absent any argument that 

the findings were erroneous, acceptance of the summary was proper. Our 

discussion identified the evidence, then gave de novo review by identifying the 

applicable legal standard and applying it. Id. at 266–67. 

As to alter ego, this court’s opinion explained Texas law on alter ego. 

We held that whether a non-signatory is bound by an arbitration agreement 

is to be decided by the court, absent agreement to the contrary. Id. at 264–65 

(citing Weekley Homes, 180 S.W.3d at 130). We also stated that in Texas, the 

“trial court’s findings on whether an arbitration agreement exists among 

specific parties are entitled to deference.” Id. at 265 (citing Aerotek, Inc. v. 

Boyd, 624 S.W.3d 199, 204 (Tex. 2021)). Our opinion quoted several findings

by the arbitrator, pointed out that the bankruptcy court had incorporated the 

quoted findings into its own judgment (making those findings the court’s 
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findings), and stated the district court had affirmed. Id. at 264–65. We found 

no basis to disturb the findings or the resulting legal conclusions. Id. at 265. 

As to this court’s statement that the arbitrator’s decision to arbitrate the 

Cannon Grove matters “must stand,” we meant no reason was shown in the 

appeal to reverse. Id. In sum, all three federal courts that reviewed the award 

referenced the evidence on alter ego and found it compelling. Undue 

deference was not given to the arbitrator as to fact-findings. 

Amberson goes a step further as to alter ego and argues that the 

McAllen parties’ final amended answer in Hidalgo County District Court did 

not sufficiently make the claim. Amberson insists that in this answer, the 

allegation was only that the law firm and ANR were the alter egos of 

Amberson the individual but did not include that the first two were alter egos 

of each other. The heading for the relevant part of the answer is phrased as 

Amberson asserts. The text, though, says this: “There exists such unity 

between JON CHRISTIAN AMBERSON, P.C., ANR and AMBERSON 

that the separateness of individual corporations and AMBERSON has 

ceased.” That same section of the answer closes by stating “AMBERSON, 

JON CHRISTIAN AMBERSON, P.C. and ANR are all responsible for the 

actions of each other.” We do not address whether the answer is even 

relevant at this stage, but the rehearing petition’s description of the answer 

approaches being disingenuous. 

IT IS ORDERED that the petition for rehearing is DENIED.