In Werner Enterprises, Inc. v. Blake, the Texas Supreme Court addressed the role of the “substantial factor” requirement in tort causation. The Court held that, for negligence liability, it is not enough for a defendant’s conduct to be a “but-for” cause of the injury; the conduct must also be a substantial factor in bringing about the harm

The substantial-factor requirement “incorporates ‘the idea of responsibility’ into the question of causation”—that liability should only fall on a party whose actions are so significant in producing the injury that they are “actually responsible for the ultimate harm.” If a defendant’s conduct merely “created the condition which made the injury possible,” but did not itself substantially cause the injury, then proximate cause is not established as a matter of law.

Applying this principle, the Court found that the defendant driver’s alleged negligence—driving at an unsafe speed for icy conditions—was not a substantial factor in causing the plaintiffs’ injuries. Rather, the sole substantial factor was the other driver’s sudden and unexpected loss of control, which caused the vehicle to cross a wide median and collide with the defendant’s truck before the defendant had time to react. The defendant’s presence and speed on the highway were simply “the condition that made the injuries possible”: “[T]he sole proximate cause of this accident and these injuries—the sole substantial factor to which the law permits assignment of liability—was the sudden, unexpected hurtling of the victims’ vehicle into oncoming highway traffic, for which the defendants bore no responsibility.” No. 23-0493 (Tex. June 27, 2025).

Risk Point, LLC v. Santander Bank, N.A., a permissive appeal, addressed the proper interpretation of a complex “reconciliation audit provision” in a contract between a bank and a business that arranged insurance for car dealers who received financing assistance from that bank.

The Fifth Court held that the provision does not allow for reconciliation audits to be initiated at any time, as the bank had argued, but could instead only be initiated “during the three-month period following renewal, expiration, or earlier termination of a dealer’s coverage,” or, alternatively, during the policy term for specific portions of the year.

The court emphasized that reading the provision to allow audits at any time would render meaningless the specific timing language in the contract about timing, stating, “Santander’s interpretation of the second provision renders the first provision meaningless: the specific time period of three months following the end of coverage would add no meaning to the Reconciliation Audit provision under Santander’s interpretation, because the boundless second provision would simply incorporate and swallow the specific provision whole.” No. 05-24-00469-CV, June 25, 2025.

In Professional Service Indus., Inc. v. Ibey, the Fifth Court addressed the term “action” in Tex. Civ. Prac. & Rem Code § 150.002, and when the 2023 amendment to that statute becomes effective.

The Court held that “action” refers to the entire lawsuit, not to discrete claims or causes of action asserted within the suit. The Court explained, “the common meaning of the term ‘action’ refers to an entire lawsuit or cause or proceeding, not to discrete ‘claims’ or ’causes of action’ asserted within a suit, cause, or proceeding.” (Accord Coale & Taylor, Judgment Rendition in Texas, 75 Baylor L. Rev. 355, 360-61 (2023)).

As a result, the Court concluded that the 2023 amendment to section 150.002—which exempts certain cross-claims from a certificate of merit requirement—applies only to actions commenced on or after the amendment’s effective date. It emphasized that the Legislature could have chosen different language if it intended the amendment to apply to claims or pleadings filed after the effective date, but instead specified that it applies only to actions commenced on or after that date. Nos. 05-24-00541-CV & 05-24-00599-CV (Jun. 23, 2025)

In Calitex LLC v. Big Lot Stores, LLC, the Fifth Court reminded that “evidence of the amounts charged and paid, standing alone, is no evidence that such payment was reasonable and necessary.” Here, a tenant submitted invoices and testimony regarding the need for repairs and the amounts paid, but failed to present any additional evidence demonstrating the reasonableness of the charges.

The Court explained that simply showing the character of the services, the need for the services, and the amounts charged is insufficient. There must be “some other evidence showing that the charges are reasonable and necessary.” No. 05-24-00054-CV, Jun. 17, 2025

Within the last month, area courts have reached the following holdings:

• in Ethridge v. Samsung, a Fifth Circuit panel majority found that a manufacturer of batteries was subject to jurisdiction in Texas (over a dissent that shares common ground with the supreme court opinion cited below); No. 23-40094 (5th Cir. May 14, 2025).
• in BRP-Rotax v. Shaik, the Texas Supreme Court found that a manufacturer of aircraft engines was not subject to jurisdiction in Texas, because it lacked “an intent or purpose to serve the Texas market.” No. 23-0756 (Tex. June 20, 2025); and
• in Western Trails Charters and Tours, LLC v. Provance, the Dallas Court of Appeals held that an out-of-state bus company purposely availed itself of Texas by entering an “Interline Agreement” with Greyhound, but the “operative facts” of the claims did not arise from those contacts. No. 05-24-01089-CV (Tex. App.–Dallas May 29, 2025) (mem. op.).

All of these opinions are thoughtful and carefully reasoned. But Justice Busby’s concurrence in the Rotax case makes a powerful, big-picture point about this area of law – especially in “stream of commerce” cases, the International Shoe framework is complex, confusing, and remains substantially unsettled after decades of efforts to clarify it. He recommends an “originalist” approach, which may or may not be an improvement in terms of the results reached, but has much to commend it as a long-needed source of certainty in this significant area of commercial law.

Novo Point LLC v. Katz illustrates a situation when a series of orders can create judgment finality – as well as the importance of the specific language used in orders to refer to the claims that they address: “In arguing the appeal should be dismissed as untimely, Katz asserts that the trial court’s order on Schepps’s motion dismissed all of Baron’s intervention claims, not just the claims against Schepps, because it dismissed “each of the stated claims enumerated above[,]” which were all of the live claims in Baron’s amended plea. And because following that order, the only claims remaining were appellants’ claims, Katz argues the order granting Sandler Siegel’s motion dismissing all of appellants’ claims constituted a final judgment from which the trial court’s plenary power and appellate deadlines ran. We agree.”  No. 05-23-00677-CV (June 16, 2025).

My thoughtful friend Arturo Ayala recently wrote this informative short article as to when partial supersedeas bonds may be allowed.

An unfortunate event involving citation to “hallucinated” case authority ended with this sanctions order. Three lessons can be learned:

1. Avoid using Gen AI to do serious case research. There’s nothing wrong with asking it research questions to get ideas, and that can be quite helpful as part of an overall use of Gen AI to help write — so long as you remember that every citation it returns has to be checked for accuracy. Gen AI programs can look like databases, and they can act like databases, but Gen AI programs are not databases.
2. If it’s too good to be true, it is. The problem in this case arose from a hallucinated Texas Supreme Court case from the late 19th Century that involved materially similar facts. If that was a Westlaw search result, it would require double-checking because it’s just so unlikely. The best “tell” that Gen AI is hallucinating is that it’s giving you exactly what you want to hear.
3. Don’t lie behind the log. I don’t know all the facts of this case, but the order says that the appellant’s counsel did not take prompt action when the problem with the hallucinated citations was first brought to light. If something has been cited in error, get out in front of the error before your opponent and the court has to spend needless time and energy helping rectify it.

Today I did my yearly “Fifth and Fifth” update, on cases of interest to commercial litigators from the Fifth Circuit and Fifth District. This is a printout of my PowerPoint. In particulary, it was interesting to see how those two court are dealing with the Supreme Court’s recalibration of personal jurisdiction in the 2021 Ford Motor case.

Justice David Gunn recently wrote this interesting article in the South Texas Law Review about the evolution over time of an important part of the harmless erorr rule.

An out-of-state bus company purposely availed itself of Texas by entering an “Interline Agreement” with Greyhound, but the “operative facts” of the claims did not arise from those contacts. The Fifth Court held that the claims against the bus company were “principally concerned with the driver’s operation of the bus in Utah and [the company’s] conduct in employing the driver and otherwise providing the bus transportation in question,” rather than any activities or agreements that took place in Texas. Western Trails Charters and Tours, LLC v. Provance, No. 05-24-01089-CV (May 29, 2025) (mem. op.). (The graphic was an attempt to show, using AI, the “long arm” statute reaching out to a bus, which did not entirely succeed.)