IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10737

AUTOBAHN IMPORTS, L.P.,

 Doing Business as Land Rover of Fort Worth,

Plaintiff–Appellee,

versus

JAGUAR LAND ROVER NORTH AMERICA, L.L.C., 

Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This is a dispute between a U.S. car distributor, Jaguar Land Rover 

North America (“Jaguar”), and a franchised dealership, Autobahn Imports

(“Autobahn”), concerning chargebacks of around $300,000 in incentive payments the distributor had made to the dealer. The Board of the Texas Department of Motor Vehicles (the “Board”) declared the chargebacks invalid, and 

United States Court of Appeals

Fifth Circuit

FILED

July 13, 2018

Lyle W. Cayce

Clerk

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Jaguar exercised its statutory right of review in the state appellate court. 

While that appeal was pending, Autobahn sued for damages based on the 

Board’s findings, claiming violations of the Texas Deceptive Trade Practices 

Act (“DTPA”) and breach of contract. Before the state court of appeals had

completed its review, the federal district court granted summary judgment to

Autobahn on its various claims. Because Autobahn’s antecedent failure to 

exhaust divested the district court of power to decide the claim when it did, 

summary judgment is vacated and remanded.

I.

Jaguar offers an incentive known as the “Business Builder Program,” 

which provides dealers a percentage of the retail price of every vehicle sold if 

certain conditions are met. The relevant terms are set out in the Business 

Builder Program Manual (“Manual”) and the Operations Bulletin (“Rules”), 

collectively referred to as the Business Builder Contracts.1 According to 

Jaguar, dealerships are entitled to incentive payments if they (1) deliver each 

new vehicle to the “end-user”; (2) submit the end-user’s name and address to 

Jaguar; and (3) maintain the necessary documentation to support that address. 

The Rules define an “end user” as “a purchaser/lessee purchasing or leasing a 

vehicle from an authorized Dealership for retail, commercial or business use, 

with no intent to resell. An approved leasing company purchasing to lease is 

considered an end user.” The Rules offer no definition of an “approved leasing 

company.” 

In 2010, a dispute arose regarding the procedures and policies governing 

the 2011 Business Builder Program, and Autobahn filed a complaint with the 

 

1 See also Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C., No. 17-10349, 

2018 WL 1612252, at *1 (5th Cir. Apr. 3, 2018) (per curiam) (unpublished).

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Texas Department of Motor Vehicles. Before the Board acted, Jaguar and 

Autobahn entered into the 2011 Settlement Agreement, which outlined certain 

“Handover Policies” that Autobahn would follow. That agreement required

Autobahn to extend to “[e]very retail purchaser . . . an invitation to visit Autobahn’s dealership personally” to receive the vehicle, or to conduct the handover 

“at the residence/office of the purchaser or end-user.” The agreement stated 

that “[a]ll deliveries . . . will be conducted by trained Autobahn personnel.” 

The parties dispute the reach of the agreement. Jaguar asserts that the 

Handover Policies apply to all “end users,” while Autobahn insists that it 

applies only to “individual retail purchasers, not leasing companies.” 

A new dispute regarding the 2013 Business Builder Program forms the

principal basis for the current action. Jaguar conducted an audit of Autobahn’s 

sales from February 2013 through January 2014. The auditor looked at 134 

sales files, “all of which involved sales to leasing companies,” and claimed that 

in 90 cases, Autobahn was not entitled to an incentive payment because 

“[d]elivery was not made to the vehicle’s end-user by an authorized Land Rover 

retailer representative.” Instead, the leasing agency delivered the vehicle to 

the lessee. The auditor initiated 91 chargebacks for incentive payments.2 

Autobahn appealed, and Jaguar affirmed all but 5, resulting in $317,204.80 in 

chargebacks. 

In May 2014, Autobahn filed a complaint with the Board, alleging that 

the chargeback violated Section 2301.467(a)(1) of the Texas Occupations Code, 

which prohibits a manufacturer, distributor, or representative from 

 

2 “A manufacturer or distributor may make charge-backs to a dealer if, after an audit, 

the manufacturer or distributor has reasonable grounds to conclude that the dealer committed fraud with respect to the incentive program.” TEX. OCC. CODE § 2301.475(b).

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“requir[ing] adherence to unreasonable sales or service standards.”3 Autobahn 

sought “a declaration from the Board that [Jaguar’s] interpretation of ‘enduser’ to exclude a leasing company purchasing a vehicle from Autobahn” violated that prohibition. 

The Board referred Autobahn’s complaint to an administrative law judge 

(“ALJ”) at the State Office of Administrative Hearings. In August 2015, the

ALJ issued a Proposal for Decision, concluding that the chargebacks violated 

Section 2301.467(a)(1). The ALJ noted that the dispute ultimately turned on 

the question “whether a leasing company is an end-user under the terms of the 

Business Builder documents.” The ALJ thought yes. While noting that neither 

the Manual nor the Rules define “an approved leasing company,” she still found 

that “[s]ales to leasing companies are qualified sales under Business Builder 

according to the Program documents.” She concluded that Jaguar’s “chargebacks to Autobahn for sales to leasing companies . . . [were] invalid under . . . 

§ 2301.467(a)(1) for requiring adherence to unreasonable sales or service 

standards.”4

The Board adopted the ALJ’s findings of fact and conclusions of law and 

issued a final order stating that Jaguar “improperly charged back against 

[Autobahn] certain incentive payments for sales to leasing companies and that 

those chargebacks are invalid and rescinded.” 

In November 2016, Jaguar appealed the Board’s order to the state court 

 

3 TEX. OCC. CODE § 2301.467(a)(1). Autobahn also alleged that the action violated 

Section 2301.468, which prohibits a manufacturer or distributor from “treat[ing] franchised 

dealers of the same line-make differently,” see id. at § 2301.468, but the parties agree that 

Autobahn has since conceded that claim.

4 The ALJ also concluded that Jaguar’s chargebacks violated § 2301.468 “for treating 

Autobahn unfairly or inequitably in its sale of [Jaguar’s] vehicles,” but Autobahn has since 

abandoned that claim. 

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of appeals.5 During the pendency of that appeal, Autobahn sued in state 

court,6 claiming breach of contract and violations of the DTPA, the latter of 

which would entitle it to treble damages.7

Jaguar removed, and Autobahn sought summary judgment. It claimed

(1) Jaguar’s “violation[] of Section 2301, as found by the Board, establish[es] 

Autobahn’s claim under the [DTPA] as a matter of law” and (2) that “the Board 

expressly found that the underlying agreements . . . collectively constitute valid 

and enforceable contracts that [Jaguar] breached by virtue of wrongful chargebacks.” Jaguar replied that (a) the action was premature because Autobahn 

had not yet exhausted its administrative remedies and that (b) even if the 

action were properly before the court, Autobahn was not entitled to treble damages on summary judgment because it had not established that Jaguar acted 

“knowingly” as required by the DTPA. 

The federal district court rejected Jaguar’s exhaustion argument, reasoning that “the Board’s final order is final and enforceable.” The court then 

granted summary judgment on Autobahn’s DTPA and breach-of-contract 

 

5 The Texas Court of Appeals’s review of Board decisions is fairly deferential. The 

court will “reverse or remand a case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or 

decisions are (A) in violation of a constitutional or statutory provision; (B) in excess of the 

agency’s statutory authority; (C) made through unlawful procedure; (D) affected by other 

error of law; (E) not reasonably supported by substantial evidence considering the reliable 

and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized 

by abuse of discretion or clearly unwarranted exercise of discretion.” Jaguar Land Rover 

N. Am. v. Bd. of the Tex. Dep’t of Motor Vehicles, No. 3-16-00770-cv, 2017 WL 6756997, at *5 

(Tex. App.―Austin Dec. 21, 2017, no pet.) (internal quotations omitted). 

6 Separate suit was necessary because the Texas Occupations Code does not grant the 

Board authority to award damages for the relevant claims.

7 While these proceedings were underway, Jaguar credited the $317,204.80 chargeback to Autobahn’s customer account, “subject to a full reservation of rights, without waiver 

of its claims or defenses . . . , and subject to the right to insist upon the return of [the] sum in 

the event Jaguar ultimately prevails in its appeal or otherwise obtains relief.”

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claims but denied “double recovery” as to the latter. Jaguar appealed, and, in 

the interim, the Texas Court of Appeals affirmed the Board’s order.8

II.

A.

The parties dispute the point at which the Board’s order became final for 

purposes of administrative exhaustion. We agree with Jaguar that Autobahn 

filed too soon. 

Sitting in diversity, we apply Texas substantive law on the exhaustion 

question,9 “look[ing] first [and foremost] to the final decisions of the Texas 

Supreme Court.”10 Where that court has yet to speak directly to the question, 

“we must make our best Erie guess,”11 with the recognition that “non-binding 

language from the [Texas] [S]upreme [C]ourt is the second- or third-best predictive indicium of how [it] might decide.”12

Our analysis begins and ends with Subaru of America v. David McDavid 

Nissan, 84 S.W.3d 212, 221 (Tex. 2002), which offers the court’s most thorough 

explication of exhaustion and the Board’s jurisdiction. A car dealership had 

sued a manufacturer for several Code violations without first having sought

administrative relief. The court began its analysis by explaining that Texas 

 

8 Jaguar, 2017 WL 6756997, at *9 (“We cannot conclude that there is no reasonable 

basis in the record for the determination that the chargebacks violated section 2301.467(a)(1) 

or that the determination was arbitrary, capricious or affected by legal error.”). 

9 Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 166 (5th Cir. 2014) (“Texas 

law must apply in this appeal; which leads us to the question of whether the exhaustion of 

administrative remedies under Texas law is jurisdictional or merely a condition precedent 

that may be forgiven.”).

10 Austin v. Kroger Tex. LP, 746 F.3d 191, 196 (5th Cir. 2014). 

11 Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 628 (5th Cir. 2000). 

12 In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 

753, 774–75 (5th Cir. 2018).

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agencies enjoy two forms of jurisdiction: “primary” and “exclusive.” Id. at 220. 

The former is “prudential,” the latter “jurisdictional.” Id. Hence, where the 

agency possesses exclusive jurisdiction, “a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction over a dispute.” Id. at 222. As for Code-based claims, the Texas Motor Vehicle Commission Code “creates a hybrid claims-resolution process” whereby “the Board has 

exclusive jurisdiction . . . over claims and issues the Code governs, [and] a party 

must exhaust administrative remedies to obtain a Board decision about Code 

violations, if any, to support a DTPA or bad-faith claim based on Code violations.” Id. at 224 (emphasis added). 

After identifying exhaustion as jurisdictional, the court opined on when

it first occurs:

The Board’s decision becomes “final” (and thus a party has exhausted administrative remedies) for purposes of a party’s pursuing damages in a trial court for Code-based claims: (1) after the 

time to seek substantial-evidence review of the Board decision expires, if no affected person seeks such review . . . ; or (2) after an 

affected person who seeks judicial review exhausts the 

substantial-evidence review avenues . . . .

Id. It is undisputed that Autobahn filed for damages, and the district court 

granted summary judgment in its favor, before completion of substantialevidence review. Subaru thus suggests the district court lacked subject-matter 

jurisdiction to enter summary judgment.

The federal district court dismissed the above-cited language as “nothing 

more than dicta” unsupported by the very statutory authorities upon which the

Subaru court purportedly had relied. The court concluded that the Board order 

was clearly a “final board order”—noting that the order itself was titled “Final 

Order”—and pointed to statutory provisions stating that an appeal of a final 

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board order should not affect its enforcement.13 The district court thus concluded Autobahn need not wait for the Texas Court of Appeals. 

We cannot agree. It is “error” for a “federal district court [to] dismiss[] 

[the Texas Supreme Court’s] language as [mere] dictum.” DePuy, 888 F.3d 

at 774. Though the district court’s position finds some support in the relevant 

statutes, its decision pays insufficient homage to the body charged with final 

interpretive authority over the statutes at issue. 

As an initial matter, the dictum from Subaru likely isn’t “mere dicta,” 

but rather binding “judicial dictum.” Texas courts recognize two types of dicta:

obiter dictum, which “is a statement not necessary to the determination of the 

case and that is neither binding nor precedential,” and judicial dictum, which 

“is a statement made deliberately after careful consideration and for future 

guidance in the conduct of litigation.” Lund v. Giauque, 416 S.W.3d 122, 129 

(Tex. App.—Fort Worth 2013, no pet.).14 The latter “should be followed unless 

found to be erroneous.” Id. 

Subaru’s language bears all the hallmarks of judicial dictum. Its introductory sections carefully trace the nature of the Board’s jurisdiction, the contours of exhaustion for Code-based claims, and their combined effect on a

“[t]rial court’s adjudicat[ive]” role in the hybrid-claims process. Subaru,

84 S.W.3d at 223–24. The court was careful to delineate exactly how a party 

exhausts its claims in the hybrid-claims process, emphasizing that “the Board’s 

decision becomes ‘final’ (and thus a party has exhausted administrative remedies) for purposes of a party’s pursuing damages in a trial court . . . after . . . 

substantial-evidence review” is completed. Id. at 224 (emphasis added). And

 

13 See TEX. GOV. CODE §§ 2001.176, 2001.144(a)(2)(A); TEX. OCC. CODE § 2301.755.

14 See also Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 399 (Tex. 2016); Palestine 

Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964). 

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the court ratified its view of finality, stating that “any further reference to final 

board findings means ‘final’ as we define this term here.” Id. at 224 n.2 (emphasis added). Language as to when exhaustion occurs was plainly intended to 

guide future courts and litigants on the appropriate time to file for damages 

based on Code violations. And though the Texas high court is certainly free to 

revisit that binding dictum, we lack the authority to do so.15

Autobahn resists on two accounts. First, the language from Subaru “was 

not necessary to the resolution of the case,” and second, it is “impossible” that 

the statement was made “deliberately after careful consideration,” because 

there was no briefing on the issue. 

Both rebuttals fail badly. The first zeros in on the wrong distinction: 

Even if necessity to the outcome might separate some holdings from dicta,16 it 

certainly cannot discriminate among gradations of the latter. And as for the 

second reply, it assumes too much of counsel and far too little of our state-court 

colleagues. Subaru itself proves as much.

In the alternative, Autobahn avers more forcefully that the language 

from Subaru “lacks even ‘persuasive’ force because it is erroneous.” This assertion requires that we train our attention carefully on the two relevant statutory 

provisions with which Subaru purportedly conflicts: Texas Occupations Code 

 

15 Cf. Terminiello v. City of Chi., 337 U.S. 1, 5 (1949) (explaining, in the First Amendment context, that “the gloss which [a state court] placed on the ordinance gives it a meaning 

and application which are conclusive on” federal courts); accord Gooding v. Wilson, 405 U.S. 

518, 520 (1972) (“Only the [state] courts can supply the requisite construction, since of course 

‘we lack jurisdiction authoritatively to construe state legislation.’” (quoting United States v. 

Thirty-seven (37) Photographs, 402 U.S. 363, 369 (1971))).

16 We state this only provisionally because the language of a decision may carry binding weight even when unnecessary to the particular result. Cf. Saucier v. Katz, 533 U.S. 194, 

207 (2001) (explaining that courts can decide whether an underlying constitutional violation 

took place even if qualified immunity bars the suit and renders the antecedent constitutional 

judgment unnecessary to the result), rev’d on other grounds in Pearson v. Callahan, 555 U.S. 

223, 242 (2009).

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§ 2301.755 and Texas Government Code § 2001.176(b)(3). The first reads as 

follows:

 An appeal under this subchapter does not affect the enforcement

of a final board order unless:

 (1) the enforcement of the order is enjoinable under 

Chapter 65, Civil Practice and Remedies Code, and under 

principles of primary jurisdiction; or 

 (2) the board, in the interest of justice, suspends the 

enforcement of the order pending final determination of the 

appeal.

TEX. OCC. CODE. § 2301.755 (emphasis added). Similarly, Texas Government 

Code § 2001.176 states that “[u]nless otherwise provided by statute,” the filing 

of a petition for review “does not affect the enforcement of an agency decision”—

such as the Board decision at issue here—for which substantial-evidence 

review is authorized. TEX. GOV. CODE § 2001.176(b)(3) (emphasis added).

Autobahn contends that Section 2301.755 “plainly means that if one 

party appeals an adverse final board order, and if neither of the two exceptions 

applies, then the other party may file, prosecute, and obtain judgment in an 

action to enforce the final board order.” Autobahn claims that Section 

2001.176(b)(3) points in the same direction and that both provisions apply to 

anyone—court or administrative agency—with the authority to enforce a 

Board order. 

Jaguar’s counter is plain enough. It reads the statutes’ references to 

“enforcement” to cover only the Board’s own enforcement of its orders and not

the initiation of a damages action in a trial court. As proof, Jaguar cites Section 

2301.805(b), which clarifies that the trial court in a damages action is not technically enforcing the Board’s order but instead “giv[ing] deference to the 

[Board’s] findings of fact and conclusions of law” “in the interest of judicial 

economy and efficiency.” TEX. OCC. CODE § 2301.805(b).

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These dueling interpretations turn on a recurring source of uncertainty

in statutory interpretation: To whom is the statute addressed? Subaru tacitly 

embraces Jaguar’s narrowing construction, and Autobahn offers nothing on 

appeal to show that that interpretive choice was an unreasonable one. In the 

absence of error, that judicial dictum should control. 

But even if Subaru’s language were not binding, the district court should

have granted it heavy weight in wagering its Erie guess. See DePuy, 888 F.3d 

at 774. Subaru’s language is at least arguably consistent with the statutory 

scheme, and it provides the clearest signal of the position of Texas’s highest 

civil court. Given that far “weak[er]” dictum is generally “relevant to the [Erie] 

inquiry,” id. at 775, Subaru’s unmistakable clarity ought to have controlled.

In short, Autobahn failed to exhaust before the federal district court 

entered judgment in its favor. Because that failure was jurisdictional, the

district court lacked the power to decide the case when it did. See Subaru,

84 S.W.3d at 218.

B.

Autobahn asserts, by way of a supplemental letter, that even if it failed 

to exhaust before entry of summary judgment, the issue is “moot” because the

state court of appeals has since rejected Jaguar’s challenge to the Board’s 

determinations. But Autobahn offers no support for that conclusional proposition. And when pressed at oral argument to explain how we could affirm a 

jurisdictionally defective judgment, Autobahn’s only answer was to resist the 

premise, insisting that it had successfully exhausted with the Board’s determination. But having just crossed that bridge, we see no permissible way to 

reach Autobahn’s preferred result.

Nothing in the post-judgment developments changes things. In Grupo

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Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004), the Court 

explained, albeit in the context of diversity jurisdiction, that “the jurisdiction 

of the court depends upon the state of things at the time of the action brought.” 

(internal quotation omitted).17 Here, the jurisdictional defect not only was 

present at the time of filing but persisted through summary judgment.18 Given 

that the court lacked the authority to decide the case when it did, we cannot 

now “hypothesize [its] subject-matter jurisdiction for the purpose” of passing 

upon, and potentially affirming, its merits determination. See Ruhrgas AG v. 

Marathon Oil Co., 526 U.S. 574, 577 (1999).

The Texas Supreme Court has described just one potentially relevant

escape hatch from the failure to exhaust in this context: “[I]f the impediment 

to jurisdiction could be removed, then the court may abate proceedings to allow 

a reasonable opportunity for the jurisdictional problem to be cured.”19 But 

nothing in Texas law suggests this “opportunity” persists after judgment; the

caselaw and common sense prove the opposite.20 And though some courts have

 

17 This court and others have cited Grupo Dataflux in the context of exhaustion without second-guessing its applicability. See, e.g., Nat’l Football League Players Ass’n v. Nat’l 

Football League, 874 F.3d 222, 225 (5th Cir. 2017); accord Doctors Nursing & Rehab. Ctr. v. 

Sebelius, 613 F.3d 672, 677 (7th Cir. 2010) (noting that although the time-of-filing rule “is 

primarily encountered when determining the prerequisites of diversity jurisdiction,” it “is not 

so limited”).

18 Although the possibility for abatement would seem to cut against a strict time-offiling rule, see Subaru, 84 S.W.3d at 228, we need not square that circle, as the court lacked 

jurisdiction not merely at the time of filing but also when it entered summary judgment.

19 Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 805 (Tex. 2001); see also Subaru, 

84 S.W.3d at 228.

20 For federal-exhaustion examples, see National Football League, 874 F.3d at 227 n.5 

(holding the failure to exhaust in arbitration before a court filing could not be “cured by the 

subsequent issuance of an arbitral award”); accord Macon v. Youngstown Sheet & Tube Co., 

698 F.2d 858, 861 & n.2 (7th Cir. 1983) (same); Galvan v. SBC Pension Benefit Plan, 204 F. 

App’x 335, 339 (5th Cir. 2006) (rejecting the argument that a plaintiff’s “administrative remedies were exhausted after she filed her original complaint”); accord Whitley v. Dr. Pepper 

Snapple Grp., Inc., 4:17-CV-0047, 2017 WL 4155257, at *4 (E.D. Tex. Sept. 19, 2017) (citing 

Galvan to reject the argument that the “[d]efendants’ exhaustion argument [was] moot since 

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appeared to excuse post-filing jurisdictional defects when cured before judgment,21 here the defect remained through the early stages of this appeal. Autobahn cites no authority to suggest a jurisdictional defect like this can be 

“mooted” through exhaustion after the fact.22

Accordingly, the summary judgment is VACATED and REMANDED.23 

 

administrative remedies [were] exhausted” after filing but before the court ruled). For a 

Texas-exhaustion example, see Gorman, 753 F.3d at 169 (where a plaintiff filed suit, and 

only afterward received her right-to-sue letter from the Texas Commission on Human Rights, 

we deemed the defect cured, but emphasized the issue turned on whether the requirement of 

a right-to-sue-letter was a “jurisdictional defect, which cannot be excused, or a condition 

precedent, which may” (emphasis added)). 

21 See, e.g., Mathews v. Diaz, 426 U.S. 67, 75 (1976); see also Positive Black Talk Inc.

v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004) (excusing failure to register a 

copyright—which the court believed was a “jurisdictional prerequisite” to an infringement 

suit—where the requirement was “satisf[ied] . . . before final judgment” (emphasis added)), 

abrogated on other grounds by Reed Elsevier, Inc. v. Munchnick, 559 U.S. 154, 160 n.2 (2010); 

H & D Tire & Auto.-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 

2000) (“Even if a court lacks jurisdiction at the time of removal and regardless of whether 

there was an objection to the removal, the judgment will stand if the court had jurisdiction 

at the time it entered judgment.”); Ellison Steel, Inc. v. Greystar Constr. LP, 199 F. App’x 

324, 327 (5th Cir. 2006) (“[I]n some cases this Court will not disturb a judgment even though 

a jurisdictional defect existed at some point prior to entry of judgment if jurisdiction existed 

at the time judgment was entered.”). But see Bowles v. Russell, 551 U.S. 205, 214 (2007) 

(“Court[s] ha[ve] no authority to create equitable exceptions to jurisdictional requirements

. . . .”).

22 An exception concerns a federal court’s ability to cure imperfect diversity by dismissing a “dispensable nondiverse party . . . even after judgment has been rendered.” Grupo

Dataflux, 541 U.S. at 573 (emphasis added) (citing Newman–Green, Inc. v. Alfonzo–Larrain, 

490 U.S. 826, 832 (1989)); id. (explaining that even “courts of appeals . . . have the authority 

to cure a jurisdictional defect by dismissing a dispensable nondiverse party” even after judgment has been entered). But in reversing this circuit, the Court made clear this was the

exception, not the rule. See id. at 574 (cautioning against “manufactur[ing] brand-new exception[s]” to the time-of-filing rule).

23 Under ordinary circumstances, our analysis would end here, without comment on 

the merits of the summary judgment decision. But in light of the Texas court’s post-judgment 

ratification of the Board’s findings and the possibility that the district court may retain

jurisdiction on remand, we write briefly to note that summary judgment on the DTPA claim 

was likely unwarranted. 

Autobahn is entitled to treble damages if Jaguar’s conduct was “committed 

knowingly,” TEX. BUS. & COMM. CODE § 17.50(b)(1), that is, with “actual awareness, at the 

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We place no limitation on the matters that the district court can address on 

remand.

 

time of the act or practice complained of, of the falsity, deception, or unfairness of the act or 

practice giving rise to the [dealer’s] claim,” id. § 17.45(9). Actual awareness requires that “a 

person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to 

him, but I’m going to do it anyway.’” St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 

974 S.W.2d 51, 53−54 (Tex. 1998). That is a high bar indeed, and the summary judgment 

record appears insufficient to surmount it. 

The mere fact that the Board adopted Autobahn’s interpretation of the contract terms 

does not show that Jaguar acted knowingly. At a minimum, there appears to be a genuine 

dispute of material fact as to whether Jaguar acted based on a good-faith interpretation of 

the relevant contract provision when it initiated the chargebacks and when it continued to 

withhold the funds during the appeal, particularly because the contract does not define the 

term “approved leasing company.” “[A] party’s state of mind is inherently a question of fact 

which turns on credibility,” and “[c]redibility determinations . . . are within the province of 

the fact-finder.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991). 

Though “[t]his is not to say that the court can never enter summary judgment when intent 

or state of mind is at issue . . . , the court must be vigilant to draw every reasonable inference 

from the record in a light most flattering to the nonmoving party.” Id. at 1266. That posture

suggests summary judgment on the DTPA claim was premature.

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