Lead Opinion
" 'The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. ' "1
We have to decide the appropriate disposition of a case by an appellate court when an appealing party does not challenge
In en banc conference, we have also considered to what extent Texas Rule of Appellate Procedure 38.9(b) authorizes the Court to sua sponte identify an issue not raised by appellants and request additional briefing on that issue. We conclude that, while rule 38.9(b)does allow the Court some discretion in remedying substantive defects in parties' briefs, it does not allow this Court to sua sponte identify an issue not raised by a party and request additional briefing or reformulate an appellant's argument into one not originally asserted. See TEX. R. APP. P. 38.9(b) ; see also State v. Bailey ,
BACKGROUND
Appellants St. John Missionary Baptist Church, Symphuel Anderson, Beverly Davis, and Patricia Mays assert that the trial court erred by granting the motion to dismiss and plea to the jurisdiction filed by appellees Merle Flakes, Eloise Square, Mary Jo Evans, Annie Katherine White, Ella Mae Rollins, Eddie Abney, Gwendolyn Brown, Mark Horton, David Pailin, Sr., Dee Patterson, and Penny White. However, in their brief they did not challenge one of the two grounds supporting the trial court's judgment.
On September 27, 2014, a church vote was taken in a specially called church conference. A majority of those present at the vote elected to terminate the contract of the pastor, Bertrain Bailey. Bailey and Merle Flakes, the chairman of St. John's trustee board, were given notice of the vote, but Bailey refused to vacate the position. Bailey continued to receive checks from Flakes and other appellees entered into a loan for $979,000 and began selling the real property of St. John.
Appellants, St. John church members who sought to terminate Bailey, filed a petition seeking a temporary restraining order and permanent injunction to prevent appellees, other St. John church members, from selling properties belonging to St. John. Appellees filed a motion to dismiss and plea to the jurisdiction. In an amended motion, appellees asserted two separate grounds: (1) the court lacked subject matter jurisdiction based on the ecclesiastical abstention doctrine and (2) appellants lacked standing to file a lawsuit. The trial court held a hearing regarding appellees' amended motion to dismiss and plea to the jurisdiction during which both grounds were argued. The trial court granted the motion and dismissed the case. Appellants then perfected this appeal and filed an appellate brief that addressed only the standing argument.
ANALYSIS
As stated above, appellees asserted two grounds in their amended motion to dismiss and plea to the jurisdiction, but the trial court's order granting the motion to dismiss and plea to the jurisdiction did not state on which ground or
On appeal, appellants challenge only the second of these grounds for dismissal.
As explained by our sister court of appeals, fully addressing the pertinent issues is done as follows:
This can be accomplished by asserting a separate issue challenging each possible ground. Jarvis [v. Rocanville Corp.] , 298 S.W.3d [305] at 313 [ (Tex.App.-Dallas 2009) ]. Alternatively, a party can raise an issue which broadly asserts that the trial court erred by granting summary judgment and within that issue provide argument negating all possible grounds upon which summary judgment could have been granted. See Star-Telegram, [Inc. v. Doe, ] 915 S.W.2d [471] at 473 [ (Tex. 1995) ] ; Jarvis,298 S.W.3d at 313 . This is sometimes referred to as a Malooly issue. See e.g., Rangel v. Progressive County Mutual Insurance Company,, 269-70 (Tex. App.-El Paso 2010, pet. denied). It is not sufficient to merely raise a general issue as the appellant must also support the issue with argument and authorities challenging each ground. Rangel, 333 S.W.3d 265 , citing Cruikshank v. Consumer Direct Mortgage, Inc., 333 S.W.3d at 270, 502-03 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument). If the appellant fails to challenge each ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. Star-Telegram, Inc., 138 S.W.3d 497 915 S.W.2d at 473 ; Jarvis,298 S.W.3d at 313 .
Ramirez v. First Liberty Ins. Corp. ,
The Texas Supreme Court has not overruled Malooly or provided authority that would allow us to sua sponte identify a
Until the supreme court clearly and unequivocally directs otherwise, construing rule 38.9(b) to require us to identify and suggest briefing on issues not raised by an appellant would depart from our duty to be neutral and impartial. See Salazar v. Sanders,
There is one issue in civil cases that the supreme court has clearly and unequivocally directed us to consider sua sponte: whether we have subject matter jurisdiction-and we do request additional briefing on that issue. See Rusk State Hosp. v. Black ,
"The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means." ANTONIN SCALIA & BRYAN A. GARNER , READING LAW: THE INTERPRETATION OF LEGAL TEXTS 56 (2012). The adversarial system is the general context of all procedural rules, leading one not to expect a single rule to change the adversarial system in most matters that would come before a court.
The immediate context of rule 38.9(b) is rule 38. The entirety of rule 38 provides how a brief is to properly present each case: the contents of an appellant's brief are set forth in rule 38.1, an appellee's brief in rule 38.2, the reply brief in rule 38.3, the appendix in rule 38.5, filing deadlines in rule 38.6, amendment or supplementation in rule 38.7, and results of an appellant's failure to file a brief in rule 38.8. Every one of these rules pertains to the proper presentation of briefs and none dictates what issues or substantive or procedural law an appellant should include in its brief. As the concluding sub-rule within rule 38, the reference in rule 38.9(b) to whether "the case has not been properly presented in the briefs" is to the content of the rules that preceded it: rules 38.1-.8. There is no basis for the dissents' position that rule 38.9(b) includes rule 44.1's requirement that appellate courts not reverse unless harmful error is demonstrated by the appellant or that rule 38.9(b) implicitly abrogated Malooly . See TEX. R. APP. P. 44.1. The supreme court knows how to adopt clear rules abrogating one of its precedents and to inform the judiciary and bar in comments that it is doing so. The supreme court has not overruled Malooly , and rule 38.9(b) neither expressly nor implicitly calls into question its continued viability. It is the prerogative of the supreme court, not us, to overrule the supreme court's decisions if it determines the reasons have been rejected by another line of decisions. See Rodriguez de Quijas v. Shearson/Am. Express, Inc. ,
CONCLUSION
We affirm the trial court's judgment.
Schenck, J., dissenting joined by Bridges, Fillmore, Myers, and Boatright, JJ.
Notes
Nat'l Aeronautics & Space Admin. v. Nelson ,
In the recital paragraph of the final order, the trial court documented that in addition to filed motions, response, supplemental response, pleadings, and arguments of counsel, the trial court considered "the acknowledgement by both sides in open court during the hearing that the individual Plaintiffs are no longer members of the St. John Missionary Baptist Church, Inc." The quoted statement pertained to appellees' standing argument. The decretal paragraph provided, "Defendants' Amended Motion to Dismiss and Plea to the Jurisdiction is granted and Plaintiffs' case is hereby dismissed." Neither the recital nor decretal paragraphs of the order limited the basis of the relief granted to anything less than the entire motion, but if there were a conflict, the decretal paragraph would control. See State v. Brownlow ,
Appellants' brief frames their issue as, "Did the trial court abuse its discretion when it found that Plaintiffs/Appellants did not have standing to bring suit on behalf of St. John's Missionary Baptist Church, Inc.?" The only argument presented is standing. There is no mention in the brief of "subject matter jurisdiction," the general topic of subject matter jurisdiction, or the ecclesiastical abstention doctrine. In the trial court, the motion to dismiss and plea to the jurisdiction used both terms together, arguing that "The ministerial exception provides that civil courts lack subject-matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position." Another reference in the record is an associate judge's order dissolving a temporary restraining order stated, "Upon further consideration, this Court sua sponte DISSOLVES same, finding that it lacks subject matter jurisdiction based upon the ecclesiastical abstention doctrine."
As for the continued viability of Malooly , the supreme court continues to cite Malooly when analyzing whether issues are broadly enough framed to encompass arguments raised before the supreme court when the contention is made that the argument was not made before the court of appeals. See Knopf v. Gray , No. 17-0262,
The dissents criticize the majority for not expositing rule 38.9(b). But it is inappropriate for us to do so when, in our view, rule 38.9(b) does not apply, and to do so would constitute an advisory opinion. It is sufficient for our purposes to explain what rule 38.9(b) does not encompass and that is a failure of an appellant to demonstrate error resulted in harm under rule 44.1 due to a Malooly situation.
Dissenting Opinion
Dissenting Opinion
DISSENTING OPINION
I agree with Justice Schenck's dissent and write separately to make an additional point.
The majority says that we have considered in en banc conference whether rule 38.9 allows us to request briefing on issues that the parties do not raise. The majority concludes that rule 38.9 does not allow us to request such briefing, and it cites rule 38.9 as legal authority. However, the majority does not explain why rule 38.9 supports its conclusion. Eventually, the majority says that rule 38.9 does not apply to this case at all and that issuing an opinion expositing the rule would be inappropriate. The majority even says that such an opinion would be advisory, which, as my colleagues know, is another way of saying unconstitutional.
As a certain federal judge once wrote: Pure applesauce. The majority has not attempted to present a reason for concluding that an opinion explaining the meaning of rule 38.9 would be advisory in this en banc proceeding, which was called to answer a question about the meaning of rule 38.9. Nor has the majority tried to show how it might be possible to cite rule 38.9 as legal authority for a conclusion about rule 38.9 without interpreting rule 38.9.
Instead, the majority has tried to show that the requirements of rule 38.9 can be divined from general legal principles, rules other than rule 38.9, and judicial opinions that did not answer the question before us-just about everything except the text of rule 38.9 itself.
But the starting point of construing a legal provision must be the provision itself. In re City of Georgetown ,
Does the majority agree or disagree? It does not say. The only reference the majority makes to liberal construction is in a parenthetical explanation to its citation of an El Paso Court of Appeals case, Salazar, that did not construe rule 38.9. The majority quotes the Salazar court's reference to liberal construction in support of the majority's proposition that " 'construing rule 38.9(b) to require us to identify and suggest briefing on issues not raised by an appellant would depart from our duty to be neutral and impartial.' " But the question is not whether rule 38.9(b) requires us to identify and suggest briefing; it is whether the rule allows us to request briefing on matters the parties did not brief.
Right after the title, the rule's flush language provides,
Because briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case, substantial compliance with this rule is sufficient, subject to [subsections (a) and (b) ].
TEX. R. APP. P. 38.9. This tells us that the parties do not have to fully comply with the requirement in rule 38.1(f) that they present all the issues to us, and the provision
After Rule 38.9's flush language, subsection (a) discusses formal briefing defects. Then subsection (b) addresses substantive briefing defects:
(b) Substantive Defects. If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.
TEX. R. APP. P. 38.9(b). This allows us to make any order necessary for satisfactory submission. The language in subsection (b) is extremely broad, and we are required to read it permissively. Ordering parties to brief issues they did not initially brief is, or could be, an order necessary for the satisfactory submission of the case. How could the broad wording of the rule, particularly under a permissive construction, forbid this interpretation? The majority does not say.
Instead, the en banc opinion quotes the Court of Criminal Appeals in Bailey , which held that rule 38.9 does not allow us to " 'reach out and reverse the trial court on an issue that was not raised.' " But in Bailey , the Court of Criminal Appeals reversed the court of appeals because the parties did not argue the point on which the court of appeals resolved the case. Here, we would ask the parties to argue the point we need them to argue in order to resolve the case. Those are two very different things.
So, the majority's analysis is not about the text of rule 38.9 or a case that addressed the question before us. Instead, it is about policy preferences and general legal principles.
The majority asserts that allowing a party to "brief after submission of a case to a panel is even more disruptive to the appellate process than appellants raising an issue for the first time in a reply brief." Maybe, maybe not. Either way, could a policy preference related to this observation trump the text of rule 38.9(b) ? The majority does not offer a reason to think so; it just asserts that briefing after submission is really disruptive.
The majority also quotes Salazar for the proposition that " 'an appellate court should not make the appellant's argument for him because the court would be abandoning its role as a neutral adjudicator and would become an advocate for the appellant.' " But we would not make the appellant's argument for him; we would ask the appellant to make his own argument on points we consider necessary for satisfactory submission. And surely we would not ask only the appellant to brief those points. Both sides would have exactly the same opportunity to make their own arguments. That sounds neutral to me.
But the majority posits that neutrality, here, forbids us to ask the parties to brief an issue they did not brief. In support of this notion, the majority quotes the United States Supreme Court in Nelson , observing that the " 'premise of our adversarial
Nor do I see how the principle of maintaining an adversarial legal system might support the majority's conclusion. The en banc opinion quotes Scalia & Garner for the proposition that the " 'words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.' " The majority says that "the adversarial system is the general context of all procedural rules, leading one not to expect a single rule to change the adversarial system in most matters that would come before the court." But the en banc opinion does not exposit either the text of rule 38.9 or the principle of our adversarial legal system, much less describe how one might affect the other. Leave that fact to one side, though, and notice that the majority uses a quote about the paramount importance of the words of a governing text to justify its failure to try to opine on the meaning of the words of a governing text.
I concede that the language of rule 38.9 is broad enough to permit interpretations that are different from mine. I also acknowledge that the rule is related to other legal authorities. But in order to opine on the relationship between rule 38.9 and other authorities, I think we have to explain what the text of rule 38.9 means. Because the en banc opinion does not try to do that, I dissent.
Dissenting Opinion
DISSENTING OPINION
Justice Scalia continued his discussion of the adversarial system as it relates to the resolution of issues brought forward by the parties: "Of course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research. "1
I agree with my colleagues that the motion below posed two grounds on which the trial court might have dismissed appellants' claims for lack of jurisdiction, and that the supreme court's decision in State v. Brownlow ,
I. Background
The majority summarizes some of the historical facts and the course of proceedings in the district court. I pause to further develop that history as it relates to what I see as the need for re-examination and application of the rules that govern briefing waiver in this case.
Appellants, and others, became members of St. John Missionary Baptist Church, Inc. (the "Church") and provided their time, talent, and treasure in furtherance of its ministry. On September 27, 2014, the Church convened a specially called conference during which a majority of the members present voted to terminate Pastor Bertrain Bailey's contract. Members who participated in the specially called conference were then notified that their membership in the Church had been
Notwithstanding the vote to terminate Pastor Bailey's contract, he refused to vacate the position and continued, with the acquiescence of appellee Church leaders, to conduct Church business. Appellees also participated in the alleged dissipation of Church assets and failed to provide financial accounting to the membership. Former parishioners, including appellants, filed this lawsuit and a separate forcible entry and detainer action against Pastor Bailey seeking to remove him.
The bylaws governing the Church that were in existence at the time appellants filed this lawsuit do not appear to contain a removal of membership provision. Subsequent to the filing of this lawsuit, however, appellees presented a form of bylaw containing the addition of a provision that immediately and automatically excommunicates any member who might seek to challenge the leadership of the Church in any court proceeding.
The trial court granted the plea in a one-sentence order that uses language relative to standing. That reference is contained in the recital portion of the trial court's judgment, however. Prior panel decisions, binding here and outside the call for en banc rehearing to address the broader issue of briefing waiver, control the interpretation of judgments and work to appellants' peril here as the decretal portion simply states the plea is granted without explicit limitation to the standing argument.
Because of the broad decretal portion of the trial court's judgment, the mutual call to en banc hearing in this case addresses only the authority of panels to rule on the merits or to allow supplementation in briefing due to appellants' failure to address the ecclesiastical-abstention doctrine.
II. The Rules
Before addressing the precedents that led us to the present result, it is helpful to address the current rules and precedents governing their construction.
Substantive defects. If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the brief, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.
TEX. R. APP. P. 38.9(b).
Regardless of how we arrive at the conclusion that "the case has not been properly presented in the briefs"-that is, whether the brief fails to address an argument necessary to permit a merits resolution of the issue presented or fails to cite properly to the record or legal authority elsewhere- rule 38.9(b) directs us to a "satisfactory" submission, which is presumably one on the merits. Thus, nothing in the text of rule 38.9 exempts the deficiency at issue here from its broad application to briefs that fail to "properly present the case."
As detailed below, the supreme court has advised us, for more than a century, to give appellate rules "a reasonable and practical construction ... not one calculated to embarrass suitors in the appellate tribunal by unnecessary restrictions." Clarendon Land Inv. Agency v. McClelland Bros.,
III. A Brief History of Briefing Waiver
Under the first dedicated rules of appellate procedure, an appellant was required to identify and separately number "points of error" with parenthetical citation to the corresponding pages of the record where the issue had been addressed below.
Beginning in 1987, the supreme court handed down a series of decisions that applied former rule 83 to briefing waivers. Compare Inpetco ,
Our precedents following the 1987 Inpetco decision, severely limited its mandate to permit "re-briefing," or effectively ignored its rule. See, e.g. , Design Trends Imports v. Print Source, Inc. , No. 05-93-01643-CV,
B. Briefing Waiver after the 1997 Amendments
On September 1, 1997, substantial amendments to the rules of appellate procedure took effect. These revisions were intended, among other things, to eliminate traps created by appellate court decisions and to effectuate the supreme court's desire to see cases decided on the merits instead of on procedural grounds. Stephenson v. LeBoeuf ,
Notwithstanding the changes to the appellate rules, the court has not addressed in its opinions how rule 38.9(b) operates, either on its own or in conjunction with rules 42.3 and 44.3. In fact, our first panel decisions handed down following the amendment simply cited to the pre-amendment decisions without acknowledging the existence of the new rules or consideration of whether those prior cases had paid fidelity to Fredonia's case-by-case balancing and discretion requirements. See, e.g. , Smith v. Tilton ,
To the extent the majority addresses rule 38.9(b), it does so by observing its presence amongst the rest of the rules governing minutiae of briefing. The majority does not explain what deficiencies rule 38.9(b) would apply to or why its plain text would not apply here. It implies that it was designed to address formalistic errors and that a contrary reading that would allow a ruling on the merits or a cure to the briefs to facilitate one would be improper. This rationale seems out of place in view of the presence of the later, broader rules like 42.3 and 44.3. In any case, the majority's effort at an in pari materia reading of rule 38.9(b) to encompass only technical or formalistic omissions in an opening brief, ignores that rule 38 already incorporates a separate provision permitting correction of such errors in 38.9(a), which is predictably entitled "formal" defects. Rule 38.9(b) meanwhile addresses "substantive defects" without limitation as to type, cause, or description that results in a case not being presented in a manner that permits a merits decision at the time of submission. There is nothing remarkable about the placement of that language in the rule governing briefing.
In any case, reading rule 38.9(b) to exclude substantive defects on grounds of in pari materia or to the exclusion of later rules places the interpretive cart before the textual horse to create an ambiguity that does not exist. We ought to read rule 38.9(b) together with the rest of the rules and not to nullify one or the other. In any event, even if one is to focus solely on rule 38, it addresses both formal and substantive defects and imposes obligations on lawyers and courts alike to follow it. There is no ambiguity within the rule to be reconciled by the in pari materia canon or any other constructive aid.
Finally, the majority suggests that reading rule 38.9(b) for its plain language, in harmony with itself and the rest of the rules, and in light of decisions from the supreme court itself governing briefing waiver and the drive for merits resolutions that informed the amendments would somehow result in our reversing the supreme court. That is not so. Malooly is a rule of substance.
Moreover, echoing another en banc debate within our court shortly after Inpetco was handed down, the majority declares the rule to be inapplicable, as its decision here is not based on "briefing waiver" but on appellants' failure to show reversal of the judgment is required. But, as Justice Hecht observed in his concurrence of that en banc decision, the failure to address an argument, like the ecclesiastical exception in this case, is precisely the kind of procedural irregularity upon which a case should not be disposed. See Most Worshipful Prince Hall Grand Lodge v. Jackson ,
In reaching its conclusion, the majority begins with Justice Scalia's observation that we do not sit as self-appointed boards of inquiry, and then embarks sua sponte into the potential grounds or arguments below in search of unchallenged rationales
The majority's contrary conclusion appears to rely on one of two notions. First, that the "issue" here is the ecclesiastical exception and that the appellants have not identified that issue in their statement of the issues-that is to say, echoing the language of Oliphant and the long abandoned assignment of error regime-that appellants have failed to assign error properly to the judgment on appeal. Alternatively, invoking Malooly's rule from the summary judgment context, the "issue" here is subject matter jurisdiction in the trial court and the brief fails to address an argument (i.e., a "ground" in Malooly parlance), and this failing compels affirmance without regard to the merits. Viewed as the former, the problem should be obvious. The assignment of error rules were abandoned decades ago to avoid exactly these kinds of tortured debates. We transitioned first to the point of error designation regime under which Malooly was decided and, then, to the current rules. As noted, a general notice of appeal from a final judgment now functions as a designation of every order and rationale that might have produced it . Gunnerman v. Basic Capital Mgmt., Inc. ,
Malooly itself arose from the point of error system that still required a form of assignment, albeit in the brief itself as a separate statement of the points of error, giving rise to two distinct forms of briefing waiver: (1) failure to designate an order being appealed or a "ground" (i.e., an argument in support of an order) in the listed points of error;
Having now adopted the federal "issues presented" practice and abandoned the pre-argument designation formalities that gave rise to Malooly,
Of course, the problem here is far more fundamental than the label applied to it or what Justice Scalia would have done with it under the federal rules. In fact, the rules currently in force in Texas were designed to pretermit these semantic debates. Our rule 38.9(b) does not use the terms "briefing waiver," "issue," or "argument" at all. It simply poses the question as whether the "case has been properly presented in the briefs." Nothing more. Nothing less. Rules 42.3 and 44.3 likewise go on and unambiguously constrain us from affirming judgments for failure to comply with the rules or for defects in procedure, regardless of how one describes the failing. Insofar as these rules admit of any debate in their construction, I once again find myself in agreement with the good late Justice Scalia: "We give the ... [r]ules of [c]ivil [p]rocedure their plain meaning, and generally with them as with a statute, when we find the terms ... unambiguous, judicial inquiry is complete." Pavelic & LeFlore v. Marvel Entm't Grp. ,
IV. A Satisfactory Submission is Usually One that Allows for a Merits Decision or Waives Only Where the Parties Have Received Notice of the Deficiency that Prevents it.
The text of rule 38.9 provides that an appellant need only comply with the rules substantially. TEX. R. APP. P. 38.9. If an appellant does not substantially comply with the rules, we have the discretion to do what is necessary to effect a satisfactory submission. Accordingly, we are to read the rule by its plain meaning and construe the rule liberally, and an appellant is not required to strictly comply with the rules. The majority opinion does not interpret the text of rule 38.9 according to its plain meaning, does not address the rule's requirement that we read briefing rules liberally and are allowed to make any order we deem necessary for satisfactory submission, and fails to acknowledge that an appellant does not have to do all the things the majority asserts the appellants had to have done here.
A plain, and certainly arguable, construction of rule 38.9(b) would recognize a panel's discretion to request additional briefing to allow for a satisfactory submission when an issue is identified but not properly presented in the brief. Notably, the rule itself contemplates "supplemental" briefs, as opposed to the earlier "re-briefing" mandate of Inpetco that some courts of appeal equated with the "intolerable" notion of essentially starting the appeal over. See, e.g. , King v. Graham Holding Co. ,
We of course have no obligation to search the record for issues not raised by the parties or ignore their failure to preserve the issues in the court below.
First, courts have always had the authority, though not the obligation, of summarily affirming the judgment on the merits based on their own review of the record or governing law where affirmance is obvious. Thompson v. Thompson ,
On the other hand, where the deficient submission of the issue does not readily lend itself to affirmance, waiver-without some notice and a brief opportunity to submit supplemental briefs-deprives the party raising the issue of a determination on the merits on account of a procedural failure. This, perforce, is not "a satisfactory submission." Texas courts have previously gone forward, despite an inadequate appellant's brief, and nevertheless reversed.
Unfortunately, our current precedent leads to the absurd result that an appellant who actually goes to the effort of preparing and submitting a brief but misses one of the grounds we later identify as possibly supporting the judgment (or fails to cite sufficient authority) loses without a decision on the merits, while the appellant who completely fails to file a competent brief is assured to receive notice of his failure and the right to later file an untimely brief. TEX. R. APP. P. 38.9(a), 44.3. Likewise, the appellant who files a deficient brief that is identified as such by the appellee is at least afforded the opportunity of seeking leave to submit supplemental briefing under rule 38.7's generous standard. In contrast, where, as here, neither party notices the deficiency, the first communication from the court now comes in the form of a terminal adverse judgment. But see TEX. R. APP. P. 43.2. While the majority states we cannot sua sponte identify issues, that is exactly what the court did here in identifying the ecclesiastical-abstention doctrine as a ground asserted below but not briefed here.
In this case, like in many others, the court, rather than the parties, has identified an argument made below and communicated it to the parties, although we do so in the form of a final judgment. That is not advocacy, it is adherence to our understanding of the rule laid down in Malooly. Likewise, if rule 38.9(b) can be read to afford notice of the deficiency prior to issuance of a final decision, simply giving that notice is not advocacy either. Providing an opportunity to cure the deficiency (or ruling despite the insufficiency where possible) simply facilitates a decision on the merits.
The outcome in this case is something that no member of the court prefers. It is driven by a series of technical, court-made doctrines beginning with the interpretation of the final order, continuing with Malooly and its application to foreclose consideration of the one ground identified to the parties in that final order, and concluding with the court's briefing waiver rules after Fredonia and the 1997 amendments. The supreme court's decision in Fredonia and the rules amendments of 1997 were intended to eliminate traps created by appellate court decisions such as these and to effectuate the supreme court's desire to see cases decided on the merits instead of on procedural grounds. Stephenson ,
In this case, I would exercise the court's discretion under rule 38.9(b) to request additional briefing on the ecclesiastical-abstention doctrine as a potential ground for the trial court's decision.
Carducci v. Regan ,
The argument section of the appellants' brief addresses only one of the two arguments (grounds) that were presented below in appellees' motion to dismiss and plea to the jurisdiction. The appellees likewise address only the question of standing and do not assert appellants' lack of briefing on the ecclesiastical-abstention doctrine as a basis for affirming the trial court's judgment.
Section 2.3 2. of the Church's bylaws provides, "The right hand of fellowship will be automatically withdrawn from any member who takes legal action against the church or church leadership without the approval of the Pastor, Board of Trustees and the membership of the church."
In the recital portion of its order granting appellees' amended motion to dismiss and plea to the jurisdiction, the trial court specifically relied on the pleadings, the arguments of counsel, and "the acknowledgement by both sides in open court during the hearing that the individual Plaintiffs are no longer members of the St. John Missionary Baptist Church, Inc." But, in the decretal portion of the order, the trial court granted appellees' amended motion without stating its basis for doing so. We recognize that when there is an explicit conflict between a trial court's recitals and the decretal portion of the judgment, we must focus on the decretal portion of the judgment. See Brownlow ,
Fambrough v. Wagley ,
Our precedent at issue here may more properly be described as "briefing forfeiture." Kontrick v. Ryan ,
Under the original rules for the courts of civil appeals, the appellant (plaintiff in error) was required to give adequate notice of the judgment appealed in his notice and to assign "points of error." See Court Rules,
We first read Inpetco to apply only where all issues (and thus the whole appeal) were waived and later ignored it altogether. David Gunn, Unsupported Points of Error on Appeal ,
"The new 'issues presented' practice allowed the statement of an issue to include subsidiary matters and signal[ed] the intention of the Texas Supreme Court to have all appeals judged on the merits of controversies rather than hypertechnical waiver issues." Stephenson ,
Ironically, the purpose underlying Malooly was to achieve the merits-driven preference expressed directly in the later amendments by requiring consideration of "grounds" on appeal notwithstanding that the appellate brief had not parsed them in a fashion reminiscent of the former assignment of error practice. That problem persists today with respect to summary judgment and several other trial court proceedings where the rules of civil procedure effectively retain the pre-appeal assignment requirements in the form of detailing the "grounds" on which the trial court might render a judgment. The question then remains in summary judgment cases and others like this one, of what should be done where an appeal by implication reaches to such a "ground" or "issue," but the brief omits it in such a way as would foreclose a merits decision. I believe that question is separately addressed in the rules that carried forward Malooly's preference for resolution on the merits as explained above.
Indeed, given the comprehensiveness of the rules, which govern both the mundane and the fundamental, the only thing surprising about them is the absence of any language permitting a sua sponte non-merits disposition without notice to the parties. If this were the supreme court's intention after Malooly , Inpetco , and Fredonia , one would have expected language to that effect to be included. Contra Tex. R. App. P. 38.9(b), 42.3 and 44.3.
Malooly and other supreme court decisions that reach like results do not address the question of what an intermediate court might do to permit a merits disposition and provide little guidance in the context presented here. See, e.g. RSL Funding, LLC v. Pippins ,
As the supreme court itself decided Fredonia after Malooly and promulgated rule 38.9(b) after both, there seems little cause for parsing it to avoid its plain meaning or seeking further permission to apply it.
The majority thus appears to treat Malooly as governing and to preclude decision or correction under the rules. While Malooly does not address the issue of its own application to the rules at issue here, it is notable that the same intermediate court that found the waiver giving rise to the requirement of compulsory correction in Inpetco later observed that Inpetco was itself a Malooly error, and confirmed the discretion to decide or permit a cure of the defect. See King v. Graham Holding Co. ,
This designation requirement predictably led to breakdowns and a series of decisions mandating generous construction to facilitate merits resolution. E.g., Fambrough ,
To be sure, both parties are directed to include a statement of the issues in their briefs, together with a variety of tables, statements, and summaries, and omission of an issue from the statement (or failure to include a statement altogether) has never been cited as a basis for dismissal or affirmance where the body of the brief adequately develops the argument. See Tex. R. App. P. 42.3, 38.9(a).
Of course, the line between an "issue" and an "argument" or even an "authority" will not always be as clear as it seems here. The task of drawing it is compelled on us by the rules we create and informed by common sense and experience. The distinction between an "issue" and an "argument" is not what divides us here, as rule 38.9(b) would permit a merits resolution in either case. That distinction might become important to a panel choosing whether to press forward and decide the case on the merits without supplemental briefing. As Justice Scalia observed, where missing material amounts to an argument, the court need not solicit further briefing to effect a merits resolution. E.g., Regan,
Affording the rule its plain meaning and applying it in this and like cases would also discourage incessant and creative arguments in this court over waiver from parties hoping to avoid review at all. It would also discourage gamesmanship below where parties would otherwise be motivated to parse and add "grounds" and "issues." No matter how ill-conceived such grounds might be, if they appear below and are not separately challenged on appeal, the majority would have us powerless to reject them.
Rule 38.7, governing amendments and supplements to briefs generally, permits revision on "reasonable terms" and directs revisions where "justice requires."
The majority correctly notes that we generally will not permit a party to raise a "new issue" for the first time in a reply brief or raise such a "new issue" ourselves without briefing from the parties. As noted above, there is a material difference between an "issue" and related or subsidiary arguments for purposes of that rule. Miller v. JSC Lake Highlands Operations ,
Of course, where the brief flagrantly violates rule 38.1 by failing even to identify the issue, we are compelled to provide notice of the violation and correction under rule 38.9(a).
David M. Gunn, Unsupported Points of Error,
Of course, an appellee has the right to seek rehearing.