TBJ January 2022

2021: The Year in Review

Texas Supreme Court

Written by Kirsten M. Castañeda

In 2021, the Texas Supreme Court continued to provide Texas courts the flexibility, guidance, and tools needed to administer justice during the COVID-19 pandemic.¹ As part of that work, the court issued a series of emergency orders² to address court proceedings and legal requirements impacted by pandemic restrictions.

In November 2021, Justice Evan Young was appointed to the court after Justice Eva Guzman’s departure in June 2021. In addition, Osler McCarthy retired in August 2021 as the court’s staff attorney for public information. In place of McCarthy’s (legendary) Friday-orders emails, the court instituted a subscription service³ for communicating Friday orders, opinion summaries, and other news.

Amidst all this activity, the court approved amendments to the Texas Rules of Civil Procedure effective January 1, 2021,⁴ and issued opinions on matters important to Texas jurisprudence.⁵ The following opinions provide a sampling.

E-signatures and Arbitration
In Aerotek, Inc. v. Boyd,⁶ the court confronted the exponential increase in the use of electronic signatures on contracts. The employer provided uncontroverted evidence of procedures used to verify an employee’s e-signature on new-hire documents, including an arbitration agreement. The court held that the employees’ mere denial of e-signing the arbitration agreement was legally insufficient to support denial of the employers’ motion to compel arbitration.

Plain Language and Ambiguity
The court continued to employ a plain-language approach in interpreting various documents. In Sundown Energy LP v. HJSA No. 3 L.P.,⁷ the court held that a mineral lease’s general definition of “drilling operations” applied “whenever” used in the lease, including the continuous-drilling clause that otherwise appeared to create a more specific definition. In In re Janson,⁸ the court held that an agreed order regarding joint managing conservatorship was ambiguous as to whether both parents should jointly select one extracurricular activity, or each parent could select their own activity, for each child. And in Northland Industries, Inc. v. Kouba,⁹ the court held that language in an asset-purchase agreement transferred liability only for a limited scope of warranty claims, demonstrating an intent not to assume liability for the seller’s implied warranties of merchantability.

Attorney-Immunity and Judicial-Proceedings Privileges
In Haynes & Boone, LLP v. NFTD, LLC,¹⁰ the court set forth the standards for attorney-immunity privilege. The privilege applies in all contexts—including business transactions and other non-litigation contexts—in which an attorney has a duty to zealously and loyally represent a client, comas long as the claim is based on the “kind” of conduct the privilege protects. And in Landry’s, Inc. v. Animal Legal Def. Fund,¹¹ the court discussed differences between the attorney-immunity privilege and the judicial-proceedings privilege. Among other things, the court held that statements made for publicity purposes outside of a judicial proceeding are not protected by the judicial-proceedings privilege.

First-Party UIM Benefits Litigation
Finally, the court issued several opinions regarding the proper procedures and mechanisms in lawsuits brought by an insured against an insurer for uninsured/underinsured motorist benefits before obtaining a judicial determination of the third-party driver’s liability and underinsured status. In Allstate Insurance Co. v. Irwin,¹² the court held that the insured may obtain the car-crash determinations through a declaratory-judgment claim, and the Uniform Declaratory Judgment Act’s attorneys’-fees provision applies. In In re USAA General Indemnity Company,¹³ the court held that, although a deposition of the insurer’s corporate representative may be relevant in the initial car-crash phase, any such deposition must be limited to narrow topics and, even then, may not meet proportionality requirements. And in In re State Farm Mutual Automobile Insurance Company,¹⁴ the court held that the initial car-crash trial should be bifurcated if the claims against the insurer were not severed and abated.

KIRSTEN M. CASTAÑEDA is a partner and chief diversity officer at Alexander Dubose & Jefferson. She works with trial lawyers in federal and state courtrooms across Texas, as well as handling mandamus proceedings and appeals in the Texas courts of appeals, Texas Supreme Court, and U.S. Court of Appeals for the 5th Circuit.