25-02: The Heat Is On
A look back to the week of June 9 from my favorite decade
Welcome to this week’s briefing from 1910 & Beyond, where we explore the evolving landscape of appellate law in Houston and beyond. Each post highlights notable developments from Houston’s two courts of appeals—the First and Fourteenth—as well as from other state and federal appellate courts across Texas and nationwide. From time to time, I’ll also share practical tips on oral and written advocacy. I hope you find these posts useful to your practice and your understanding of what’s happening in Texas appellate law.
Since last Wednesday’s launch, nearly 100 (!) readers have already subscribed to 1910 & Beyond. I truly didn’t expect that kind of immediate interest—thank you to everyone who’s subscribed or started following allowing. And if you haven’t yet subscribed, I hope you’ll consider joining the list!
The title of this week’s post says it all: The Heat Is On. With your interest, I’m feeling the heat to deliver regular, high-quality content that’s worth your time. Since this is the first substantive post of 1910 & Beyond, I’m very much in “try-it-out” mode—testing the format, content, length, posting rhythm, and more. Thanks in advance for your patience as I learn what works well (and what doesn’t). On that note, your feedback is incredibly helpful, so please don’t hesitate to email me or leave a comment with any thoughts or suggestions for future posts!
And now, let’s dive into the noteworthy items from the past week—complete with a nod to the 1980s, my favorite decade.1 Thanks to our highest courts, there’s more to cover than usual.
1910
Orders and Opinions
The First Court issued orders and opinions on June 9, 10, and 12, while the Fourteenth Court did so on June 10, 11, and 12. Three caught my attention:
1COA
Testa v. Wilmington Trust, N.A., No. 01-23-00438-CV (Guerra, Caughey, Morgan, JJ.): In this loan dispute, a California resident personally guaranteed a commercial loan to an LLC for the purchase of a Houston property. When the LLC defaulted, the trustee accelerated the loan. Neither the resident nor the LLC paid the outstanding debt, prompting the trustee to sue both in 2017. After the LLC declared bankruptcy, the trustee continued to prosecute its claims against the resident. Following several procedural twists and turns—including the resident’s death—the trial court ultimately granted summary judgment to the trustee, resulting in a $12.7+ million judgment against the resident’s estate.
Rejecting the estate’s appellate issues, the First Court affirmed. As Justice Morgan explained, most issues were waived:
Capacity (Trustee Assignment): The guaranty’s assignment to a non-party was not a question of standing, but of capacity. But because the estate never presented documents evidencing the assignment to the trial court, the issue was waived.
Personal Jurisdiction (Out-of-State Administrator): Although Texas courts generally have no jurisdiction over an estate representative appointed in another state, that rule is subject to exceptions. Under the Texas long-arm statute, a nonresident administrator may be substituted as a party when the original litigant dies mid-litigation. The question then becomes whether Texas had personal jurisdiction over the decedent. The estate also waived this issue: The administrator’s trial-court pleadings were not made subject to the decedent’s previously filed, but never-ruled-upon, special appearance.
Notice of Summary-Judgment Hearing: The “reasonable notice” rule—requiring an additional seven-day notice period when a summary-judgment hearing is reset—applies only when the movant resets the hearing, not the court. In any event, this issue too was waived. The administrator didn’t object to the original hearing date or when the court later reset it. When she eventually filed an objection, it lacked both legal authority and analysis. And on appeal, she offered no substantive briefing, as required by Texas Rule of Appellate Procedure 38.1(i).
Merits of Summary Judgment: The estate’s only merits-based argument against summary judgment relied on the assignment—which, again, was never introduced below.
N.B.: Two aspects from this opinion stand out. First, it underscores the critical importance of preserving arguments—and the supporting evidence—in thet rial court. Failure to do so, as this case illustrates, can result in decisive waiver.
Second, the panel designated this opinion as an “opinion,” rather than the more common “memorandum opinion.”
Some background: Since 2003, all civil opinions from Texas courts of appeals have precedential value. Tex. R. App. P. 47.7(b). But the Texas Rules of Appellate Procedure still distinguish between “memorandum opinions” and “opinions.” Rule 47.4 lays out the criteria for when an opinion should designated as an “opinion” versus a “memorandum opinion,” the latter generally for when “the issues are settled.” (These criteria are similar to the Fifth Circuit rules for designating an opinion as published or unpublished. See 5th Cir. R. 47.5.)
Given that most decisions in Texas courts of appeals are issued as memorandum opinions (or, in the Fifth Circuit, as unpublished opinions), I tend to view the “opinion” label as a rough shorthand question: Does the authoring judge—or another panel member—consider the decision sufficiently important to warrant the rarer designation of “opinion”?
In Testa, Justice Morgan—or one of his panel members—thought so. Perhaps it was because of the opinion’s discussion of capacity and personal jurisdiction. Perhaps it also was to reinforce the procedural rules on waiver (which otherwise are “settled”). Whatever the reason, again considering the rarer nature of “opinions” in the appellate courts—especially the high-volume Houston courts of appeals—any opinion designated as an “opinion” deserves closer attention.
Torres v. Giacona, No. 01-23-00546-CV (Adams, C.J.; Caughey, Johnson, JJ.) (mem. op.): In this tragic personal-injury case, a family was visiting someone else’s home when the homeowner’s dog attacked one of the visiting children. The child’s two siblings tried to restrain the dog. The child suffered severe physical injuries requiring surgeries, while the siblings experienced psychological injuries requiring therapy. The homeowner’s insurance company agreed to settle the family’s claim for the $300,000 policy limits—with all proceeds allocated to the children.
Because the settlement involved claims belonging to minors, the parties filed a “friendly lawsuit” to obtain court approval. The suit, however, included not only the children’s claims, but also the parents’ individual claims.
When the parties presented the proposed settlement to the trial court for approval, they requested deductions of around $25,000—a sum that would reimburse the parents for paying for their children’s past medical expenses. The trial court approved the overall settlement but denied the proposed deductions, holding that the parents were not entitled to any amount of the children’s settlement funds.
The First Court affirmed. As Justice Caughey put it in the opinion’s opening lines:
This appeal presents a straightforward question of law: When a child is tortiously injured, do his or her parents have a right to be reimbursed for money they spent on the child’s medical care from settlement proceeds allocated to the child— as opposed to through a claim on the parents’ behalf? This question has an equally straightforward answer: No. [Emphasis added.]
The key issue here was the settlement’s structure, which allocated all funds to resolving the children’s claims. But claims for reimbursement for the children’s past medical expenses belong to the parents—not the children. The parties could have structured the settlement differently—for example, by allocating $275,000 to the children’s claims and $25,000 to the parents’ claims. But because they didn’t—and because parents do not have “a right to reimbursement from their children”—the trial court correctly denied the proposed deductions.
N.B.: Pay close attention to how a settlement is structured—especially when it involves multiple parties with distinct legal claims.2
14COA
Lutz v. RWM Homebuilders, LP, No. 14-24-00174-CV (Wise, McLaughlin, Antú, JJ.) (mem. op.): This arbitration appeal arose from a construction dispute between homeowners and their homebuilder. The homeowners sued the builder, alleging several claims based on faulty construction and repair work. The builder successfully moved to compel arbitration under the parties’ purchase contract. That contract also contained a builder-repurchase option, which the builder exercised—but only after the deadline for asserting new claims in the initial arbitration had passed. The builder then failed to abide by the option’s terms. So the homeowners added a breach-of-contract claim in a second statement of claims with the arbitrator. The builder later declared bankruptcy.
The arbitrator ruled against the homeowners in the first arbitration—concerning the faulty work—mainly on limitations grounds. The trial court thereafter confirmed the award in the builder’s favor.
In the second arbitration—concerning the breach of contract—the builder asserted res judicata (claim preclusion) as an affirmative defense. After the bankruptcy stay was lifted, the arbitrator rejected that defense and ruled in favor of the homeowners.
The homeowners moved to confirm the arbitration award, which the builder again opposed based on res judicata. But the trial court summarily denied the motion.
The Fourteenth Court reversed and rendered judgment in favor of the homeowners. As Justice Antú explained, the arbitrator—not a court—was the proper decisionmaker for the res judicata defense:
The current consensus among Texas and federal courts that have considered the issue is that in arbitration proceedings, unless the arbitration agreement stipulates otherwise, res judicata is generally an affirmative defense for the arbitrators to decide, not the court. The reasoning behind the rule is that the question of res judicata is a matter of procedural arbitrability, such matters being for the arbitrators, rather than a matter of substantive arbitrability, which are for the court. [citations omitted]
The court acknowledged “a limited exception to the rule when the prior judgment arose from a court proceeding, rather than an arbitration.” But that exception did not apply: The “prior judgment” was not the bankruptcy judgment, but the trial court’s first judgment. Because the builder raised no valid ground for denying confirmation, the trial court erred in refusing to confirm the award.3
N.B.: This case highlights the sometimes-bittersweet nature of arbitration. Unlike traditional litigation—which generally offers multiple layers of review (trial court → court of appeals → Supreme Court)—an arbitral decision is largely final. And courts have very limited grounds for vacating an arbitral award; indeed, as Lutz reaffirms, “even grave error” of law or fact by an arbitrator isn’t enough to overturn an award. So even if the arbitrator here got the res judicata defense wrong (and, to be fair, there’s no indication that it did), it simply doesn’t matter.
Arguments
After several years of mostly declining oral arguments by the First and Fourteenth Courts,4 2025 has brought a noticeable uptick. That shift is no coincidence: Both courts saw significant turnover following the 2024 election, with many newly elected Justices publicly expressing a commitment to holding more arguments. For those of us in the appellate bar who recognize the vital role that oral argument plays in resolving significant legal issues, this is a very welcome development.
1COA
The First Court heard no arguments last week. But it has one argument on the docket for next week:
Bynon v. Garcia, No. 01-24-00849-CV (Guerra, Gunn, Dokupil, JJ.): Does the Texas Medical Liability Act (TMLA) apply? Three wrongful-death beneficiaries sued a physician, alleging that he wrongfully excluded certain persons from a liver-transplant program. They sought injunctive relief to prevent the physician from destroying relevant records, while referencing the possibility of future claims under the TMLA.
The physician moved to dismiss, arguing that the plaintiffs failed to serve an expert report required for “health care liability claims” under the TMLA. The trial court denied the motion.
On appeal, the central question is whether the plaintiffs’ claims are healthcare-liability claims under the Act, thus triggering the expert-report requirement. The physician says yes—and that the plaintiffs cannot avoid the TMLA through artful pleading. The plaintiffs respond that even if they might have potential healthcare-liability claims, their current claims for injunctive relief are not such claims.
Karen Landinger (Germer) represents the physician, and Iain Simpson (Simpson PC) represents the plaintiffs. The panel will hear argument on June 19 at 1:30 pm.
14COA
On June 10, a panel consisting of Chief Justice Christopher, Justice Hart, and Justice Bridges heard argument in two complex civil cases. I haven’t watched the recorded arguments, so I summarize the cases below:
Pilot Travel Centers, LLC v. M Felder Trucking, LLC, No. 14-24-00224-CV: This case stems from a dispute between M Felder Trucking LLC and its owner, Mark Felder, and Pilot Travel Centers LLC over Pilot’s failure to procure Texas Nonsubscriber Insurance—which, according to the Felder parties, would have covered injuries that Felder sustained while working. A jury found in favor of the Felder parties, awarding over $2 million in actual and exemplary damages across several claims.
Seeking reversal and rendition or alternatively a new trial, Pilot’s appeal raises a host of issues: (1) entry of judgment on inconsistent remedies; (2) imposition of exemplary damages absent actual damages; (3) multiple failures in the fraud claim; (4) multiple failures in the breach-of-contract claim; and (5) lack of causation and damages. The Felder parties have cross-appealed, primarily challenging the trial court’s entry of a modified final judgment and conditionally challenging other adverse rulings from trial.
Alan York (Reed Smith) represents Pilot, and Orin Lewis (Law Offices of Orin H. Lewis) represents the Felder parties.
Jimmy Changas, Inc. v. City of League City, Texas, No. 14-24-00416-CV: This case involves a breach-of-contract dispute between Jimmy Changas, Inc. and the City of League City over a Chapter 380 Economic Development Agreement. Jimmy Changas contended that it fully performed under the Agreement—including investing over $5 million and creating full-time jobs—but that the City wrongfully withheld agreed reimbursements for construction fees and sales tax. The City countered that Jimmy Changas failed to satisfy certain conditions precedent, thus excusing performance. The trial court agreed with the City, granting summary judgment and awarding attorneys’ fees in its favor.
On appeal, Jimmy Changas seeks reversal and remand. It argues that the trial court misinterpreted the Agreement in several respects, including by failing to recognize ambiguities that create fact issues for a jury. It also challenges the attorneys’ fee award as unreasonable.
Steven Knight (Chamberlain Hrdlicka) represents Jimmy Changas, and William Hefland (Lewis Brisbois) represents the City.
& Beyond
Despite all the (digital) ink spilled above, the real action this week came from the Supreme Courts of the United States and Texas. Both are racing to meet their self-imposed summer deadlines to clear all orally argued cases from their respective 2024 Terms. Given the volume of opinions and orders, I’ve distilled each case into brief bulletpoint summaries.
SCOTUS
Opinions
The U.S. Supreme Court issued six merits opinions last week, all on June 12. The Court has 21 outstanding decisions to go before its informal June 30 deadline. (Last Term, it issued its final four opinions on July 1 . . . though, in fairness to the Court’s schedule, June 29 and 30 last year fell on a Saturday and Sunday.)
A.J.T. v. Osseo Area Schools, Independent School District No. 279, No. 24-249 (reversing Eighth Circuit5):
Majority (Roberts, C.J., for unanimous Court): Schoolchildren bringing educational-services claims under Title II of the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973 are not required to make a heightened showing of “bad faith or gross misjudgment” by school officials. They are instead subject to the same standards from other disability-discrimination contexts.6
Concurrence (Thomas, J., joined by Kavanaugh, J.): A future case should resolve the District’s belated merits-stage argument that a Title II or Section 504 violation—and, in turn, any relief under those statutes—requires proof of intent to discriminate.
Concurrence (Sotomayor, J., joined by Jackson, J.): Neither Title II nor Section 504 require proof of animus or improper purpose—i.e., intent to discriminate.
Soto v. United States, No. 24-320 (reversing Federal Circuit):
Majority (Thomas, J., for unanimous Court): The Barring Act’s settlement procedures, including its six-year limitations period, do not apply to veterans’ claims for Combat-Related Special Compensation (CRSC). Rather, the CRSC statute provides its own settlement procedures.7
Parrish v. United States, No. 24-275 (reversing Fourth Circuit):
Majority (Sotomayor, J., joined by Roberts, C.J.; Alito, Kagan, Kavanaugh, Barrett, JJ.): A litigant who who files a notice of appeal after the original deadline—but before the district court reopens the time to appeal—need not file a second notice of appeal after reopening. A notice filed before reopening “relates forward” to the date of the order making the appeal possible.
Concurring in the Judgment (Jackson, J., joined by Thomas, J.): The bottom-line result is correct without the relation-forward doctrine.
Dissent (Gorsuch, J.): Because the Advisory Committee on Appellate Rules is already considering the issue of premature notices of appeal, the petition should be dismissed as improvidently granted.
Martin v. United States, No. 24-362 (reversing Eleventh Circuit):
Majority (Gorsuch, J., for unanimous Court): The Federal Tort Claim Act’s “law enforcement proviso” under 28 U.S.C. § 2680(h) applies only to that subsection’s intentional-tort exception, not to the discretionary-function exception or other exceptions throughout § 2680. And the Constitution’s Supremacy Clause is not a defense to liability in FTCA suits.
Concurrence (Sotomayor, J., joined by Jackson, J.): The FTCA’s discretionary-function exception should be construed narrowly.
Commissioner v. Zuch, No. 24-416 (reversing Third Circuit):
Majority (Barrett, J., joined by Roberts, C.J.; Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Jackson, JJ.): The Internal Revenue Service’s decision to cease pursuing a levy—put another way, to drop the levy—deprives the U.S. Tax Court of jurisdiction to consider preexisting disputes relating to that levy.
Dissent (Gorsuch, J.): Nothing in the Internal Revenue Code allows the IRS to deprive the Tax Court of jurisdiction over an ongoing dispute merely by dropping the levy.
Rivers v. Guerrero, No. 23-1345 (affirming Fifth Circuit8):
Majority (Jackson, J., for unanimous Court): A second-in-time habeas petition—filed after the district court has entered judgment on the first petition, but while that judgment is pending on appeal—qualifies as a “second or successive” petition, triggering the strict procedural requirements of 28 U.S.C. § 2244(b).
Orders
As if those six opinions were not enough, the Court also issued several orders throughout the week of June 9. All but one involved applications to stay executions in death cases—all of which the Court denied.
The exception—Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No. 24A1154—concerned a request to stay the Fifth Circuit’s mandate in a bankruptcy dispute pending certiorari. Acting as Circuit Justice, Justice Alito initially granted a brief administrative stay to allow time for full briefing before the mandate issued. Once briefing concluded, he denied the application and lifted the stay.
SCOTX
Opinions
The Texas Supreme Court issued six opinions on its customary Friday orders list. It has eight outstanding decisions from its docket of orally argued cases9 before its own informal June 30 deadline.
University of Texas Rio Grande Valley v. Oteka, No. 23-0167 (affirming Thirteenth Court):
Majority (Devine, J., for unanimous Court): The Division of Workers Compensation does not have exclusive jurisdiction to determine whether an employee’s injury was work-related for purposes of workers’ compensation when (1) the employer raises the issue outside the compensability context, and (2) the employee’s requested relief does not depend on entitlement to benefits.
EIS Development II, LLC v. Buena Vista Area Association, No. 23-0365 (reversing Eighth Court):
Majority (Busby, J., joined in full by Boyd, Devine, Bland, Sullivan, JJ.; as to part I by Blacklock, C.J.; and as to Parts II–IV by Lehrmann, Huddle, Young, JJ.): A restrictive covenant stating that “no more than two residences may be built on any five acre tract” regulates density, not minimum-tract size. As a result, one residence may be built on a tract of any size, even one less than five acres.
Dissent in Part (Lehrmann, J., joined by Huddle and Young, JJ.): Properly construed, the restriction should be construed as limiting density to two residences per five acres across the entire-100-acre property as acquired. That construction allows for a total of 40 main residences; it does not allow more residences by subdividing the lots.
White Knight Development, LLC v. Simmons, No. 23-0868 (reversing Tenth Court):
Majority (Huddle, J., for unanimous Court): When a court grants specific performance for breach of a real-estate contract, it may also award a limited equitable monetary award caused by the delay in performance for those expenses that are (1) directly traceable to the defendant’s delay in performance, (2) foreseeable at the time of contracting, and (3) commercially reasonable.
In Interest of N.L.S. & E.J.C., No. 23-0965 (reversing First Court) (no oral argument):
Majority (per curiam): A parent’s pattern of behavior that presents a substantial risk of harm to the child—even if that conduct does not directly harm the child—qualifies as “endangerment” under Family Code § 161.001(b)(1)(E). Here, the father’s pattern of escalating criminal convictions and minimal efforts to be involved with the child (including while incarcerated) supported the trial court’s endangerment finding.
Dissent (Blacklock, C.J.; joined by Devine, Sullivan, JJ.): The majority’s broad interpretation of “endangerment”—perhaps especially in cases involving incarcerated parents—strays from precedent holding that involuntary-termination statutes are to be strictly construed.
In re Kay, No. 24-0149 (orig. proceeding) (reversing Fourteenth Court) (no oral argument):
Majority (per curiam): Despite Texas Rule of Appellate Procedure 24.2(e), Rule 24.1(a)(4) independently grants trial courts discretion to allow alternative security for a judgment debtor with net worth of $10 million or more. In other words, the option of alternative security is not limited to judgment debtors under $10 million.
Perez v. City of San Antonio, No. 24-0714 (answering certified question from Fifth Circuit):
Majority (Boyd, J., joined by Blacklock, C.J.; Lehrman, Devine, Busby, Bland, Huddle, Young, JJ.): The Texas Constitution’s “Religious Services Protection” Clause imposes a categorical bar on any limitation of any religious service, regardless of governmental interest, whenever it applies. But the Clause’s scope is not unlimited: Although it generally prohibits restrictions on or regulations of religious services, it does not reach (among other things) governmental actions taken to preserve and maintain public property for public safety and enjoyment.
Dissent (Sullivan, J.): The plaintiffs forfeited the issue in the Fifth Circuit through inadequate briefing, so the certification essentially asked the Court to give an advisory opinion. Given the plaintiffs’ forfeiture, the Court should have declined to answer the question.
Orders
Here as well, although these opinions offer plenty of fodder, the orders list also includes several noteworthy orders. These orders can be grouped into four categories; for the first three, I’ve tried my best to accurately—but succinctly—distill the issues presented.
First, the Court granted petitions for review in seven cases:
NuStar Energy, L.P. v. Hegar, No. 24-0037 (Third Court): Whether Texas Tax Code § 171.103(a) bases the franchise tax on the buyer’s location (“place of market”)—applying only when the buyer is in Texas—or instead on the delivery location (“place of transfer”), regardless of the buyer’s location.
Gonzalez v. Texas Medical Board, No. 24-0430 (Third Court): Whether the district court properly dismissed a physician’s challenge to a Texas Medical Board cease-and-desist order as untimely under the Administrative Procedure Act’s 30-day deadline.
Braxton Minerals III, LLC v. Bauer, No. 24-0438 (Second Court): Whether Texas courts lack jurisdiction to adjudicate title to property if the “gist” or “gravamen” of a claim involves adjudication to title to out-of-state property.
Valk v. Copper Creek Distributors, Inc., No. 24-0516 (Fifth Court): Among other spoliation issues, whether an erroneous spoliation instruction constitutes harm per se, or is instead subject to harmless-error review.
S&B Engineers & Constructors, Ltd. v. Scallon Controls, Inc., No. 24-0525 (Ninth Court): Among other issues, whether a contractor and its insurer can recover proportionate contractual indemnity from a supplier after settling negligence claims brought solely against the contractor.
Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC, No. 24-0543 (Second Court): Whether a party may obtain relief from a nuisance in the absence of a cause of action, and whether limitations bars untimely claims for relief from a nuisance.
City of San Antonio v. Realme, No. 24-0864 (Fourth Court): Whether participating in a local race qualifies as “recreation” under the Recreational Use Statute.
Second, the Court set oral argument in one original proceeding:
In re Brenham Nursing & Rehabilitation Center, No. 24-0494 (First Court): Whether a district court properly struck a nursing home’s defense under the Pandemic Liability Protection Act by failing to provide “specific facts” supporting the defense.
Third, the Court granted rehearing of a denial of a petition for review, reinstated the petition, and ordered merits briefing:
Carden v. Minton, No. 24-0834 (Third Court): Whether civil claims brought by a criminal defendant against his former attorneys are improperly “fractured” professional negligence claims, which are barred by the Peeler doctrine.
Kudos to Gaines West (West, Webb, Allbritton & Gentry) for successfully convincing the Court to take a second, closer look at the issues raised in his clients’ petition—a relatively rare feat.
Fourth, four members of the Court issued a concurrence in the denial of a petition for review:
City of Houston v. Zuniga, No. 24-0916 (Young, J., joined by Lehrmann, Boyd, Sullivan, JJ.) (First Court): A future case should reconsider Cathey v. Booth, 900 S.W.3d 339 (Tex. 1995), a per curiam opinion construing the notice requirement under Section 101.101 of the Texas Tort Claims Act.
Other
Though this post has already covered enough content to fill multiple posts, the Fifth Court of Appeals (Dallas) issued a significant order that all Texas lawyers—and, for that matter, any lawyers using artificial intelligence—should read.10
Rochon-Eidsvig v. JGB Collateral, LLC, No. 05-24-00123-CV (Miskel, Kennedy, Rossini, JJ.) (order): As far as I’m aware, this is the first Texas appellate case to tackle the growing issue of lawyers (and even experts) misusing generative AI in legal filings.
After a lawyer submitted a brief with citations to nonexistent cases, the Fifth Court ordered her to provide copies of those cases. She responded that she could not locate them—later admitting they were hallucinated by generative AI. Following a rare oral hearing on the issue, the panel imposed sanctions: eight hours of CLE and $2,500 in attorney’s fees. As the panel explained in its thoughtful conclusion:
Regardless of whatever resources are used to prepare a party’s brief, every attorney has an ongoing responsibility to review and ensure the accuracy of filings with this and other courts. This includes checking that all case law cited in a brief actually exists and supports the points being made. It is never acceptable to rely on software or technology—no matter how advanced—without reviewing and verifying the information. The use of AI or other technology does not excuse carelessness or failure to follow professional standards.
Technology can be helpful, but it cannot replace a lawyer’s judgment, research, or ethical responsibilities. The practice of law changes with the use of new technology, but the core duties of competence and candor remain the same. Lawyers must adapt to new tools without lowering their standards.
Well said. As many of this post’s images show, AI is an amazing new tool—one that, when used carefully and properly, can enhance the practice of law. But AI is just that: a new tool. It is very much in development, and far from perfect. Lawyers shouldn’t shun AI in their practice; they should commit to using it ethically and properly, like all other tools in the lawyer’s toolbox.
Red Light
Considering last week’s action, I feel like Lloyd Bridges from Airplane!:
As I mentioned at the top, 1910 & Beyond is definitely a work in progress. I appreciate your patience as I figure out what works—and what doesn’t—for future posts. But the best way to improve this publication is by hearing from you, the readers! So again, please don’t hesitate to leave a comment or email me with any feedback, topic ideas, and tips on interesting cases.
I’m truly grateful to everyone who has already subscribed. If you haven’t yet, I hope you’ll consider joining—especially at the bargain cost of “free.” And please consider sharing this post with someone who might be interested in reading along.
Until next time, have a tubular week!
Case in point: My wife and I hired a fantastic ‘80s cover band to play our wedding.
Perhaps interesting only to me: The homeowner declined to file a brief—but only after being prompted by the Clerk of Court. One can understand the decision; if the homeowner took no position on how the policy limits should be allocated, why incur additional legal expenses? Still, the better course would have been to notify the court of the intent not to file, rather than simply allowing the filing deadline to expire and requiring the court to follow up—ultimately delaying the case’s submission.
Coincidentally like the Torres appeal, this appeal also involved an appellee who failed to file a brief by the deadline—prompting the Clerk of Court to send a similar order to that in Torres. But unlike in Torres, the appellee here didn’t file anything—not even a letter confirming the intent not to file a brief. Once again, that approach delayed the appeal’s submission.
My friend Nick Bruno recently published an extremely thoughtful article in the Houston Bar Association’s Appellate Lawyer, Oral Argument Statistics in the Houston Courts of Appeals, cataloguing this trend for Fiscal Years 2015–2022 . . . and using statistics that even the Texas Office of Court Administration does not collect.
Technically, the Court vacated the Eighth Circuit’s judgment. But here and below, I use the shorthand “reversed” for readers to more easily track the court-by-court outcome.
For those of us who closely follow the Court, A.J.T. also featured a now-infamous exchange at oral argument where a top Supreme Court lawyer accused another experienced Supreme Court advocate of “lying” at oral argument. (You can listen to the audio of the exchange here.) As David Lat reported in Original Jurisdiction (paid subscription required—but it’s worth it!), the lawyer promptly apologized to opposing counsel for the accusation.
Soto has Texas ties, originating in the Brownsville Division of the Southern District of Texas. Though reversed by the Federal Circuit, Judge Rolando Olvera’s opinion reached the same holding as the Supreme Court.
Judge Carl Stewart authored the Fifth Circuit panel opinion, joined by Chief Judge Priscilla Richman and Judge James Dennis.
As this list of opinions shows, the Texas Supreme Court regularly issues opinions in appeals and original proceedings without hearing argument. See Tex. R. App. P. 52.8(c), 59.1.
H/T to my friend David Coale, who featured this order in his informative 600 Commerce blog. (David, if you’re reading this, I didn’t realize you were a talented tarot-card reader. I expect a free reading next time we see other.)