Literature is filled with nonexistent books, such as the “Necronomicon” in the works of H.P. Lovecraft, the “Treatise on the Binomial Theorem” written by Sherlock Holmes’s menace, Professor James Moriarty, etc.

To that collection, we can now add Varghese v. China South Airlines, Ltd., 925 F.3d 1339 (11th Cir. 2019).

ChatGPT helpfully offered that opinion to a New York lawyer researching a technical limitations issue. Unfortunately for that lawyer, the opinion did not actually exist and neither did any of the cases that it purported to cite. An understandably vexed federal judge is now considering sanctions about the matter.

Language-model AI tools are extraordinarily powerful and making advances every day. But they aren’t designed to do legal research, and anything they say about a specific precedent needs to be verified (and not by asking ChatGPT to verify itself, as happened in the federal case cited above).

In Cato v. Smith-Cato, the Fifth Court reversed a default judgment when: “No one has asserted, and we do not find that the record contains any showing, that a return of service was filed with the trial court as required by [Tex. R. Civ. P.] 107. … Without proof of service, we cannot presume that service was valid.” No. 05-22-00068-CV (May 26, 2023) (mem. op.).

In describing the controlling legal principle, the Court cited authority running back to Roberts v. Stockslager, 4 Tex. 307 (1849). Showing the timelessness of this problem, in that case the legendary Chief Justice Hemphill confronted these facts:

“The return of the sheriff is that he left a copy of the writ and a true copy of the petition. This statement, without some additional facts as to the place or the person with whom the process was left, is unintelligible.”

And reached this conclusion, in language both archaic and modern:

“The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They cannot be mistaken, and the courts should not permit them to be disregarded. …  Every citizen is shielded by the Constitution from being deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by the due course of the law of the land.”

A participant in a parking-lot shootout was a licensee of the relevant business, rather than an invitee, on this record:

Despite Woodrum’s professed intention to purchase items at Walmart, there is no evidence that Woodrum made any purchases or even entered Walmart. Instead, the evidence shows Woodrum and Speights both arrived at the Walmart about the same time, confronted each other in the parking lot, and Speights shot Woodrum after a struggle over a gun. Thus, the record shows that, at the time of Woodrum’s injury, Woodrum had no business relationship with Walmart and was present in Walmart’s parking lot on business with Speights.

Woodrum v. Wal-Mart Stores Texas, LLC, No. 05-22-00561-CV (May 17, 2023) (mem. op.)

An unusual TRO challenge, involving a high-school transcript, and in which no response was filed to the challenger’s mandamus petition, produced several reminders about the requirements of Tex. R. Civ. P. 683 – including the required statement of irreparable injury:

The TRO simply states that the Chens have shown an irreparable injury because Jeffrey may be denied college admission, while also alleging that he had been denied admission to a number of schools. An irreparable injury, however, must be immediate “and not merely an injury that may arise at some point in the future.”  That Jeffrey may be denied admission to unnamed colleges and universities to which he has applied or may apply in the future does not evince immediacy, particularly when the Chens alleged the same imminent harm when they initiated the action in 2022. … There is no identification of pending admission decisions, planned or outstanding applications to any particular institutions, or the deadlines that may apply.

In re St. Mark’s School of Texas, No. 05-23-00369-CV (May 3, 2023) (mem.op.) (citation omitted and emphasis added).

Back during the pandemic, I got a copy of “Dallam’s Decisions.” It’s a one-volume work with the opinions of the short-lived Supreme Court of the  of Texas (1840-45, give or take). It’s fascinating stuff, some of that court’s work is terrible, and some is really insightful.

I wrote down some notes about how that court dealt with slavery, and recently turned those notes into a short article.

It just came out in the “Journal of the Texas Supreme Court Historical Society,” and you can read it starting at page 75 of this link. As you can see, I think those cases offer some good insights about our world, as well as that of the 1840s.

Fortuitously, a Justice with a mechanical engineering degree drew the opinion in Rosales v. Allstate Vehicle & Prop. Ins. Co., which involved the application of a (literal) statutory formula in a section of the Insurance Code, to answer the question whether the payment of all possible damages for a prompt-payment claim extinguished a claim for attorneys’ fees under the prompt-payment statute.

Here’s the formula, from section 542A.007(a) of the Insurance Code, edited slightly in the opinion for easier review:

In this case, the insurer paid the amount found by an appraisal on a home-damage claim (minus the deductible), plus an amount to cover any prompt-payment interest for the time period leading up to the payment. Under the statute, then, “the amount to be awarded in a [prompt-payment] judgment for a covered loss is presently zero dollars, and because the amount of attorney’s fees is a multiple of that amount, Chapter 542As formula must result in an award of zero attorney’s fees.”

The opinion also deftly summarizes the surprisingly voluminous federal district-court authority, distinguishing some adverse precedent as not accurately reflecting the Texas Supreme Court’s most recent guidance on similar issues. No. 05-22-00676-CV (May 16, 2023).

A strong receiver has a lot of influence (see, right). But that general principle does not automatically allow an affected party to supersede an order appointing a receiver, as illustrated by Mexico Foods Holdings, LLC v. Nafal:

At the supersedeas hearing, MFH argued that the receiver is “taking over our billion dollar company.” That is incorrect. The receiver is controlling a minority interest in MFH. MFH did not present any evidence that it will not be able to continue to operate its business during the receivership or that it would otherwise be harmed if it is not allowed to suspend enforcement of the order. In the absence of any evidence that refusal to allow MFH to supersede the order would cause it harm, we conclude the trial court did not abuse its discretion in denying MFH’s request to set a supersedeas bond.

No. 05-23-00108-CV (May 9, 2023) (mem. op., on motion to review supersedeas order).

Lisle v. Do-Mo Joint Venture arose from a dispute among neighbors about the care of the land between and around their respective properties. The case went to trial. The key damages question began:

and after some instructions, concluded:

Despite the benefit of the property-owner rule, an owner’s testimony was insufficient to support those figures when, inter alia, “the jury was asked to make separate awards for the damage caused by flooding and by trespassing trucks. However, Crandall made no effort to provide damages calculations resulting from these two categories; instead, Crandall provided a blanket, unsupported figure of $200,000 to fix the parking lot.” No. 05-22-00236-CV (May 10, 2023) (mem. op.).

A shareholder’s record request led to Third Eye, Inc. v. UST Global, Inc., which affirmed a judgment requiring compliance with the request. On the question whether the shareholder had an “improper purpose” for the request, the Fifth Court reminded that the “mere fact that stockholders seeking access to a company’s books and records are on unfriendly terms with the company is not a ground for denying mandamus relief,” and concluded:

“Given (1) UST’s undisputed evidence that Third Eye never provided it with the financial information it was contractually obligated to deliver, (2) UST’s stated concern regarding its investment in Third Eye, and (3) Third Eye’s own evidence that it began losing substantial business beginning in 2017, we conclude the evidence was factually sufficient to support the trial court’s conclusion that UST had a proper purpose in requesting to inspect Third Eye’s books and records.”

No. 05-22-00334-CV (May 3, 2023) (mem. op.).

1. As to the required contents of a mandamus petition, Tex. R. App. P. 52.3(j) says: “The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.”
2. Tex. R. App. P. 52.7 says: “Relator must file with the petition: (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding … .”

The second requirement means an affidavit or a proper unsworn declaration, which ws not supplied in In re Lancaster: “[R]elators’ attorney declares that she has ‘reviewed the documents contained in the mandamus record’ and that they ‘are true and correct copies of the pleadings, orders, and documents they purported to be, which were filed, submitted, or received in the trial court proceedings and/or in the appellate proceedings in this matter.’ The attorney declares that the facts stated ‘in this affidavit are true and correct and are based upon [her] personal knowledge.’ But the attorney’s unsworn
declaration does not invoke the penalty of perjury.” No. 05-23-00381-CV (May 5, 2023) (mem. op.).

The winner of a substantial judgment in the Mexican courts, sought to domesticate the judgment in Texas under the Uniform Foreign Currency Money Judgments Recognition Act (referred to by the less-than-catchy acronym of  “UFCMJRA.”)

Dynaresource conceded that “the purported judgment debtor has no ties, no presence, and no assets in the forum state.”

The Fifth Court held that as a matter of due process, UFCMJRA could not be applied in such circumstances. The Court also concluded that a special appearance was the proper procedural vehicle to raise this challenge, and distinguished two earlier Houston cases on the general topic as involving a different jurisdictional issue and and a repealed statute. Dynaresource de Mexico S.A. de C.V. v. Goldgroup Resources, Inc., No. 05-21-00362-CV (May 2, 2023).

The issue in this case is not directly related to Mallory v. Norfolk Southern Railway Co. presently before the U.S. Supreme Court about the jurisdictional consequence of registering to do business in a state, but it involves a somewhat-similar interplay of a statute with traditional minimum-contacts principles.

The petitioners in In re Redbird Trails Apts, having been rebuffed once before due to problems with presenting a set of in camera documents to the court of appeals, encountered yet more problems on a second try:

In their re-filed petition, relators inform us that the trial court has destroyed the copy of the records it had inspected, but DFPS has printed out another copy of its records for the trial court. Relators thus advise us that they have a pending request for the trial court to forward that printout under seal.

Based on the particular circumstances here, we conclude that even if the trial court were to forward that printout to us, relators have not met their burden of showing that the documents tendered to this Court in camera are the same documents relators tendered to the trial court.

No. 05-23-00379-CV (April 27, 2023) (mem. op.).

The plaintiff in Engler v. Ritz-Carlton sued a well-known Dallas hotel for, inter alia, premises liability, alleging that it should have done more to prevent an unfortunate burglary that occurred on the eve of a wedding.

The Fifth Court noted that “a premises owner owes a duty of care to protect invitees from third-party criminal acts if the owner knows or has reason to know of an unreasonable and foreseeable risk of harm to invitees,” and that such knowledge can be proven “through evidence of specific crimes on or near the premises.” But the plaintiff’s evidence lacked the necessary information about recency, frequency, and similarity to be probative:

[I]t covers a three-year time period, and it does not specify when during that period the other crimes occurred. It also does not prove the frequency of the other crimes because the paragraph actually describes the number of police calls for “alleged and/or actual” crimes, not the number of actual crimes that occurred. That is, the paragraph leaves us to speculate how many of the police calls involved actual crimes as opposed to false or mistaken reports. Finally, the paragraph does not give any details about the police calls arising from alleged “thefts and/or burglaries” to show that those incidents were similar to the incident made the basis of this suit. The umbrella terms “theft” and “burglary” could involve crimes (such as pickpocketing, vehicle break-ins, and thefts by hotel guests or employees) quite dissimilar from the room burglary involved in this case.”

No. 05-22-00067-CV (April 28, 2023) (mem. op.).

In the classic tort case of Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), a foreseeable type of injury (equipment fell on a passenger waiting for a train) occurred through an unforeseeable chain of events (a dropped package contained fireworks, that exploded and caused a panic, which in turn caused the equipment to fall). The opinions in that case influence tort law to this day, both substantively, and as to the procedural issue of whether a judge or jury should resolve such questions.

In that tradition is the Fifth Court’s opinion in Cernak v. Studley, a suit about “the alleged negligent handling of a puppy.” The Court held that the foreseeability requirement of proximate cause was not established when “there is no evidence that [defendants’] should [have] reasonably anticipated that a third-party would leave the gate open and [defendant’s] father would open the back door to inadvertently facilitate Grayson’s escape out of the home and then the yard as [plaintiff] walked by on uneven terrain.” No. 05-22-00659-CV (April 26, 2023) (mem. op.).