MICHELLE HERCZEG v. CITY OF DALLAS, TEXAS
No. 05-19-01023-CV
Court of Appeals Fifth District of Texas at Dallas
March 29, 2021
On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-16429
Opinion by Justice Schenck
The appellant in this case contends that she was the subject of discrimination and retaliation because of her gender by her employer, the City of Dallas. The City filed a plea to the jurisdiction which, according to a helpful chart appended to its brief in this Court, contained a comprehensive matrix of jurisdictional hurdles totaling 34, by my count.1 I, of course, have no opinion as to whether appellant‘s claims of discrimination and retaliation would prove viable if they were ultimately permitted to be heard at trial, though I am obliged at this jurisdictional stage to
My understanding is that we are generally obliged by rule and mandate of a superior court to answer dispositive questions, such as the one presented here, on the merits despite being confronted with a brief we determine to be deficient in either form or substance.
The majority decision, in my view, reverts to a line of authority that is contrary to the rules of appellate procedure and controlling authority of a superior court, by which this Court had treated the submission of a deficient brief as a terminal “waiver” of the appealed issue. Because these authorities mandated termination of the appeal without regard to its merits or Rules 38.9(b) and 44.3, and without acknowledging the Court‘s discretion, much less the reason for its exercise, I respectfully dissent.
I. I Agree That The Brief Is Deficient Under Prior Panel Precedent
My friends in the majority have concluded that this case has not been adequately presented in the briefs so as to permit us to reach a merits disposition. In doing so, the majority suggests that the appellant‘s brief failed to address the City of Dallas‘s assertion appellant failed to satisfy the prerequisites to suit because she failed to exhaust the administrative process set forth in Chapter 21 of the Texas Labor Code. I am willing to assume, at this point, that exhaustion and waiver of immunity are “distinct” grounds upon which the City of Dallas sought dismissal of appellant‘s claims. I also recognize prior panels of this Court have treated jurisdictional appeals as embracing the doctrine of Malooly—by which each appeal of a summary judgment order must separately attack each “ground” on which judgment was sought in the trial court with potentially as many as 34 such “grounds”
II. I Disagree with the Majority‘s Conclusion that Failure to Address a “Ground” Results in Automatic Waiver
Prior precedent, like Oliphant, Douglas, and countless others of their era, maintained, despite earlier, contrary Texas Supreme Court authority, that a deficient brief created a “waiver” foreclosing us from considering supplementation, either by an order from the court or on application for rehearing with attempt to cure. Douglas v. City of Kemp, No. 05-14-00475-CV, 2015 WL 3561621, at *3 (Tex. App.—Dallas June 9, 2015, no pet.) (mem. op.); Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.). I believe the supreme court has recently reaffirmed that those cases failed in two important respects. First, they failed to acknowledge or comport themselves in any substantive way to Texas Rules of Appellate Procedure 38.9(b) and 44.3 and controlling cases applying them. Those rules require liberal construction of briefing and the rules governing same, and direct
In addition, these older decisions also conflicted with the Texas Supreme Court‘s decision in Inpetco, which should have excised the concept of automatic “waiver” from our lexicon entirely, when it instructed that “briefing requirements” had to be read in conjunction with then rule 83 (now 44.3) that “[a] judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities.” Inpetco Inc. v. Tex. Am. Bank 729 S.W.2d 300 (Tex. 1987) (per curiam). While the supreme court would later clarify in Fredonia that we retained “some discretion” to deny an opportunity to cure, it made quite clear that this authority was to be exercised on a case-by-case basis. Fredonia, 881 S.W.2d at 284.
In the two decades that followed Fredonia, our Court declined to acknowledge this discretion in any case and treated the prospect of a cure as foreclosed by Malooly and by the notion that providing notice somehow transcends norms of neutrality. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). In defense of those old decisions, all of them were bound by the first
Moreover, recently the Texas Supreme Court considered whether courts have the discretion to make (and thus are accountable for) the decision to allow or disallow correction of a brief that is substantively deficient by supplementation or rehearing. St. John, 595 S.W.3d 211. Following an en banc decision of this Court that was closely divided on the narrow question of whether that discretion existed, the supreme court granted review and issued its decision in St. John. While the opinion did not provide comprehensive guidance on the problem, it clearly directed us back to Fredonia and confirmed its holding that “the decision to permit amendment or deem a point waived ‘depends on the facts of the case‘” and further held “that the court of appeals had authority under Rule 38.9 to request additional briefing.” Id. at 215–16. In my view, these holding should have been fatal to old cases like Douglas and Oliphant, cases upon which the majority relies. See id. at 215.
I agree that where we have a brief that wholly fails to articulate an issue or cite to law or the record, the filing is inadequate. Nevertheless, under those circumstances we should, and generally do, give the offending party one opportunity
In the case of a more substantive “Malooly” deficiency, the court may also exercise discretion to dismiss a case without reaching the merits and without giving notice and an opportunity to cure, but only if the panel concludes, per Rule 38.9(b), that the submission at that stage is “satisfactory“; that is to say, we must have reason to believe that the case can be disposed of without affording at least one opportunity to supplement. When a panel exercises this discretion to terminate an appeal without affording leave, I believe that it should acknowledge that discretion and articulate a reason for doing so. See Maresca, 362 S.W.2d at 201; Brooks-PHS Heirs, LLC v. Bowerman, No. 05-18-00356-CV, 2019 WL 1219323, at *3 (Tex. App.—Dallas Mar. 15, 2019, pet. denied) (mem. op.) (quoting United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998) (“refusal to exercise discretion accorded [the court] by law . . . constitutes an error of law“)). Our reasons for doing so may be numerous and
In my view, what we cannot do is retreat to the suggestion that a non-merits disposition is automatic when a party fails to address a potential basis for the trial court‘s decision, because it is not. Where, as here, we are exercising discretion, we should acknowledge we are doing so in keeping with the requirement that our opinion explain what was necessary to the final disposition.
191023DF.P05
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE