FinServ Casualty Corp , Capstone Associated Services, Ltd., Liquidating Marketing, Ltd., RSL-3B-IL, Ltd., and RSL-5B-IL, Ltd.,, RSL Funding and RSL Special-IV v. Transamerica Occidental Life Insurance Company, Transamerica Life Insurance Company, and Transamerica Annuity Service Corporation
14-14-00838-CV
| Tex. App. | Nov 4, 2015Background
- Appellants filed an opening brief that omitted record citations; appellees (Transamerica Parties) moved to dismiss the appeal for that deficiency and urged waiver of all issues.
- Appellants thereafter sought leave to file an amended brief supplying the missing record citations before submission.
- The court granted leave to amend; appellees moved to reconsider that order and opposed resetting the submission date.
- Appellants contend appellees suffered no prejudice because appellees reviewed the record, restated facts in their brief, and could have sought extensions or moved to amend their own brief.
- Appellants argue Inpetco and Tex. R. App. P. 44.3 govern where an appellee seeks dismissal of an appeal for briefing defects, which authorizes rebriefing when affirmance would otherwise be based solely on procedural defects.
Issues
| Issue | Plaintiff's Argument (Appellants) | Defendant's Argument (Transamerica) | Held |
|---|---|---|---|
| Whether court properly granted leave to amend opening brief to add record citations | Leave appropriate because appellees sought dismissal of entire appeal, triggering Inpetco/Rule 44.3 and permitting rebriefing rather than outright affirmance | Granting leave was improper; appellees prejudiced by having prepared brief without citations and reconsideration is warranted | Court applied Inpetco/Rule 44.3 standards and granted leave to amend; appellees failed to show prejudice and took no steps (extension or motion to amend) after amended brief filed |
| Whether appellees demonstrated actionable prejudice from delayed/added citations | No prejudice: appellees had access to and cited the record, could have requested extension or submitted their own statement/contradictions under the rules | Claimed inability to check accuracy of appellant’s citations and disruption of briefing schedule | Appellants’ actions (timely notice, filing amended brief before submission) and appellees’ available remedies (Rule 38.1(g), 38.2, 10.5(b), 38.7) defeated the prejudice claim |
| Proper legal standard for waiver vs. cure of briefing defects | Inpetco controls when an appellee seeks dismissal of the entire appeal; court must consider rebriefing before affirming on procedural grounds | Other cases cited to limit or distinguish Inpetco; appellees argued waiver should apply | Court followed its precedent (Elder, Henry S. Miller) interpreting Inpetco: if affirmance would be based solely on procedural defects as urged by appellee, rebriefing should be allowed |
| Whether appellant’s original omission constituted a "flagrant" violation barring amendment | Not flagrant here; appellant disclosed omission, corrected once clerk’s record complete, and Rule 38.9 permits curing defects | Argued omission was a flagrant violation justifying denial of leave | Court (per appellants’ pleading) noted the omission fell short of extreme examples where entire briefs lack basic components; amendment was permitted |
Key Cases Cited
- Inpetco, Inc. v. Tex. Am. Bank, 729 S.W.2d 300 (Tex. 1987) (affirmance based solely on briefing defects requires caution; rebriefing may be required)
- Saldana v. Garcia, 285 S.W.2d 197 (Tex. 1955) (amendment to supply record citations must be timely; court’s role as fact-checker relies on record cites)
- Elder v. Bro, 809 S.W.2d 799 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (distinguishing partial overruling of points from affirmance based on procedural defects; rebriefing appropriate when entire appeal is challenged)
- Henry S. Miller Mgmt. Corp. v. Houston State, 792 S.W.2d 128 (Tex. App.—Houston [1st Dist.] 1990) (interpreting Rule 44.3 and Inpetco: rebriefing required where all points are defective and affirmance would rest on procedural waiver)
- Harkins v. Dever Nursing Home, 999 S.W.2d 571 (Tex. App.—Houston [14th Dist.] 1999) (example of "flagrant" briefing violations where amendment did not cure pervasive defects)
- Texaco, Inc. v. Pennzoil, 729 S.W.2d 768 (Tex. App.—Houston [1st Dist.] 1987) (discussed in context of partial overruling of points versus affirmance for procedural defects)