Michelle Herczeg v. City of Dallas, Texas, 05-19-01023-CV

Background

Appellant Michelle Herczeg sued the City of Dallas for gender discrimination and retaliation; the City filed a lengthy plea to the jurisdiction asserting multiple grounds for dismissal.
The City’s appellate chart identified numerous (by the dissent’s count, 34) possible jurisdictional defects grounded in Chapter 21 exhaustion, waiver of immunity, and other bases.
The Court of Appeals’ majority concluded the appellant’s brief failed to adequately address one or more of those jurisdictional “grounds” and treated the appeal as not properly presented, resulting in a non-merits disposition.
Justice Schenck dissented, agreeing the brief was deficient under prior panel precedent but contending the court must ordinarily permit supplementation or explain its discretionary refusal to allow curing under Tex. R. App. P. 38.9(b) and 44.3.
The dissent relies on Texas Supreme Court authorities (Inpetco, Fredonia, St. John) to argue that automatic waiver is inconsistent with the rules and that panels retain discretion to request additional briefing and must explain exercises of that discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to address one of multiple trial-court grounds (a "Malooly" deficiency) automatically waives the appellate issue	Herczeg argues the brief should be liberally construed and, if deficient, she should be given an opportunity to cure under Rule 38.9(b) and Rule 44.3	City argues omission of addressing a trial-court ground is fatal under prior panel precedent and supports dismissal/waiver without further briefing	Majority treated the omission as a jurisdictional waiver terminating review; dissent argues automatic waiver is inconsistent with Inpetco/Fredonia/St. John and the court must normally permit cure or expressly exercise discretion to deny it
Whether courts must give notice and allow a reasonable time to correct briefing defects before affirming or dismissing	Herczeg contends rules and supreme-court precedent require notice/opportunity to correct defects or an explained exercise of discretion to refuse cure	City maintains the omission is a substantive failure justifying terminal disposition under local precedent	Dissent: Rules 38.9(b) and 44.3 and Inpetco/Fredonia/St. John require notice/opportunity to cure except where a panel validly and expressly exercises discretion to deem submission satisfactory
Whether a panel must explain its discretionary decision to terminate an appeal without allowing supplementation	Herczeg: panel must acknowledge and state reasons when it declines to allow cure	City: prior panel decisions allowed terminal waivers without such explanation	Dissent: panel must acknowledge/discuss its exercise of discretion and give reasons for denying leave to supplement; failing to do so is an abuse of discretion

Key Cases Cited

St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211 (Tex. 2020) (confirms courts of appeals have authority under Rule 38.9 to request additional briefing and reiterates Fredonia guidance)
Fredonia State Bank v. General American Life Insurance Co., 881 S.W.2d 279 (Tex. 1994) (recognizes courts retain discretion to deny opportunity to amend but must exercise it case-by-case)
Inpetco, Inc. v. Texas American Bank, 729 S.W.2d 300 (Tex. 1987) (per curiam) (judgment shall not be affirmed/reversed or appeal dismissed for procedural defects without allowing reasonable time to correct)
Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970) (creates line of authority treating appeal as waived when brief fails to attack each ground for summary judgment)
Maresca v. Marks, 362 S.W.2d 299 (Tex. 1962) (court abuses discretion by failing to exercise discretion where it is conferred)
Horton v. Stovall, 591 S.W.3d 567 (Tex. 2019) (per curiam) (panel may, but is not required to, examine the record to cure certain briefing defects)