A Houston attorney told a Texas appellate panel Thursday that incorrect case citations in his brief were "sloppy" and "embarrassing," taking responsibility for errors that included nonexistent cases and inaccurate quotations.

While weighing a dairy equipment manufacturing company's bid to toss a chief executive's suit seeking bonus pay, Justice Randy Wilson pointed out to E. F. Mano DeAyala of Buck Keenan LLP that opposing counsel had alerted them that his merits brief contained fabricated citations and that his amended brief still contained inaccuracies.

"What do you say about this? Because I haven't heard any explanation or anything from you," Justice Wilson asked DeAyala after he was done with his 15-minute argument.

"Standing here, right here, it ultimately falls on me," DeAyala responded, adding that "aggressive" steps were taken, including holding a firm-wide meeting and staffing changes.

DeAyala explained that he asked the two people who worked on the brief whether they used generative artificial intelligence, but that they couldn't recall.

"I don't know how to reconcile this. I can only tell you what I did. But we got to the bottom of it," DeAyala said, after which he apologized and promised it would be the last time he'd have to do so.

The incorrect citations in Buck Keenan's brief were originally called out in a reply brief by the opposing counsel. An amended brief was subsequently filed by DeAyala's firm, but Yetter Coleman LLP wrote a letter to the court saying that Buck Keenan's amended brief "remarkably" did not fix all the issues. The letter noted fake quotes or holdings attributed to real cases, calling the instances "telltale signs of uncritical use of GenAI."

"It is sloppy, and I'll say embarrassing. But substantively, it makes no difference," DeAyala told the three-justice panel, saying that the errors don't change the merits of his brief or the outcome of the case, in which he represents MA Mills PC, a law firm owned by "Mickey" Mills.

Mills says he was recruited by investor John P. Kotts more than a decade ago to be president of Bou-Matic LLC, a dairy equipment manufacturing company. He was paid $100,000 a month and was promised a disputed 10% annual bonus, which Mills says in a 2019 lawsuit he didn't receive because Kotts was categorizing personal expenses as corporate charges and using that as an excuse to not pay the bonus. Last year, Mills filed an amended petition that added claims of fraud and unjust enrichment.

Kotts' counsel, Lily E. Hann of Yetter Coleman, argued Thursday that Mills' suit violates the Texas Citizens Participation Act, while DeAyala countered that Kotts' motion to dismiss under the TCPA didn't comply with the law's provisions requiring 21-day notice and an oral hearing.

As a result, DeAyala argued, the motion was denied by operation of law.

Hann told the justices that the case was filed before the 2019 amendments codifying those provisions, so they don't apply.

The appeal rests on the distinction between "action" and "legal action" as written in the law and the provisions regarding when the amendments are set to go into effect. Hann argued that the word action, given its ordinary meaning and as established by the state Supreme Court, means lawsuit.

"So why do you think they [legislature] said action instead of legal action?" Justice Katy Boatman asked Hann, to which she responded that she thinks it's for "consistency across the lifespan of an entire case."

DeAyala said the 2019 amendments should apply, since the TCPA defense motion was filed years after the amendments went into effect. He noted that this appellate court had already reversed a prior motion to dismiss under the TCPA that the trial court had granted, although it was based on the law prior to the amendments.

The new motion to dismiss under the TCPA, according to DeAyala's brief, is an effort to avoid the upcoming depositions of Bou-Matic's third-party auditor and financial advisers and trial in the coming months.

Kotts' legal team, meanwhile, says that Mills' suit and claims of fraud are to "embarrass and harass" them by obtaining discovery on their tax returns, which they contend is protected communication under the TCPA.

Justices Randy Wilson, Kevin Jewell and Katy Boatman sat on the panel for the Fourteenth Court of Appeals.

MA Mills PC is represented by E. F. Mano DeAyala, Robert L. Paddock and Helen H. McLaughlin of Buck Keenan LLP.

Kotts and Bou-Matic are represented by Grant B. Martinez, James E. Zucker and Alexander R. Ades of Yetter Coleman LLP, Collin J. Cox of Gibson Dunn & Crutcher LLP and Vidal G. Martinez of Martinez Partners LLP.

The case is John P Kotts and Bou-Matic LLC v. MA Mills PC, case number 14-25-00195-CV, in the Texas Court of Appeals for the Fourteenth District.