After almost 16 years of service on Texas’s highest court, Justice Paul W. Green will retire Aug. 31 — the end of the current term. Affectionately known at the court as “PWG,” Justice Green will be remembered as a conscientious and fair judge, a caring boss and colleague, and an adventuresome pilot (a passion he looks forward to pursuing more in retirement with his youngest son Ethan, who himself is a burgeoning aviator).
Justice Green says that what he will miss most about the Texas Supreme Court is the “the back and forth” between the justices in conferences. As the second-most senior member of the court, Justice Green has certainly seen his fair share of the “back and forth.” And he has often delivered the final word. Since joining the Court in 2005, Justice Green has authored 99 majority opinions, along with a number of concurrences and dissents, in some of the most important cases in Texas jurisprudence.
Currently, Justice Green’s most cited opinion is Italian Cowboy Partners v. Prudential, which has stood for almost a decade as a critical bulwark to protect victims of fraudulent inducement: If contracting parties intend to disclaim reliance on representations, they must do so clearly and unequivocally. Italian Cowboy held that a generic merger clause in a commercial lease was not a disclaimer of a tenant’s reliance on the property manager’s oral assurances that the building was in perfect condition. The case has been cited in 572 judicial opinions since it was issued in 2011.
Yet one of Justice Green’s more recent opinions may eventually take the “most cited” crown. Rohrmoos Venture v. UTSW DVA Healthcare, a 56-page 2019 opinion, details the evidence required to prove up attorneys’ fees under a fee-shifting agreement. Justice Green said Rohrmoos clarifies that “there is really only one way to do this.”
“General, conclusory testimony devoid of any real substance will not support a fee award,” wrote Justice Green. “[B]illing records are strongly encouraged to prove the reasonableness and necessity of requested fees.” Rohrmoos will be the seminal case on attorneys’ fees in Texas for years to come. Just one year out, it already is.
Justice Green’s opinions have also grappled with some of the most difficult issues facing insurers and policyholders in Texas. Evanston Insurance Co. v. ATOFINA Petrochemicals, for example, held that an insurer that wrongfully refuses to defend its insured is barred from collaterally attacking a judgment or settlement between the insured and the plaintiff. In Barbara Technologies Corp. v. State Farm Lloyds, Justice Green authored the 5-4 majority opinion in favor of policyholders under the Prompt Payment of Claims Act. That opinion, together with Ortiz v. State Farm Lloyds, provide a powerful disincentive to insurers from using the appraisal process to avoid prompt payment of claims.
Texas courts inevitably determine cutting-edge legal issues facing the energy industry, and Justice Green has authored opinions on some big ones. In Denbury Green Pipeline-Texas LLC v. Texas Rice Land Partners Ltd., Justice Green penned an opinion for the court holding that a pipeline company may qualify as a “common carrier” with the right to take private property through eminent domain, but it must show a “reasonable probability that the pipeline will, at some point after construction, serve even one customer unaffiliated with the pipeline owner.” Simply checking the “common carrier” box is not enough. In FPL Energy v. TXU Portfolio Management, Justice Green’s opinion found in favor of wind farms in a dispute over a PPA with TXU, finding that a liquidated damages clause was unenforceable because it bore no rational relationship to actual damages.
Other pivotal decisions authored by Justice Green include ERI v. Swinnea, which clarified that trial courts have broad discretion to “fashion equitable remedies such as profit disgorgement and fee forfeiture to remedy a breach of fiduciary duty.” And it held, for the first time, that courts may even order forfeiture of contractual consideration received by a fiduciary. Another is Entergy Gulf States v. Summers, in which the court decided the scope of the exclusive remedy defense under the Texas Workers’ Compensation Act. In ruling that the defendant was qualified to use the defense, Justice Green’s opinion eschewed legislative history and made clear that statutory text is the surest indicia of intent. Members of the Texas Legislature moved for rehearing but to no avail — although rehearing was granted, the result stayed the same. Entergy is often cited for the principle that legislative history is rarely appropriate for determining what the legislature intended.
And, finally, there are Justice Green opinions that only an appellate lawyer could truly love — and we do. One example is Thota v. Young, which defined the reach of the Casteel presumed-harm analysis in the jury charge and confirmed that Casteel error can be preserved without specifically mentioning Casteel or complaining about broad-form submission. (If you don’t know what Casteel is, call us.)
When asked about his legacy, Justice Green says he hopes it will be that “people will think I was fair, that I did not seem to be leaning one way or another, and that I always decided cases based on their merits.” He also quickly redirects praise to the “very smart, dedicated and conscientious people” he worked with over his years at the Court. He particularly points to the hard work of the Supreme Court Clerk’s Office, which he notes is “well-respected all across the country, mainly due to the leadership of Blake Hawthorne.”
We predict that Justice Green’s legacy will be as he hopes — a judge who considered all sides, treated everyone with respect and dignity, and strove to decide each case correctly, without bias or prejudice. Appellate lawyers will also remember Justice Green as the embodiment of proper judicial temperament. He always treated advocates fairly and was a pleasure to appear before. And we know one thing for certain: His successor will have big shoes to fill.
Anne Johnson is an appellate partner in the Dallas office of Haynes and Boone and serves on the firm’s management committee. Chris Knight is an appellate associate in the firm’s Fort Worth office and clerked on the Texas Supreme Court for Justice Jeff Brown. Chrissy Long is a labor and employment associate in the firm’s Fort Worth office and clerked on the Texas Supreme Court for Justice Paul Green.