Court of Appeals of Texas, Fifth District, Dallas
ST. JOHN MISSIONARY BAPTIST CHURCH, SYMPHUEL ANDERSON, BEVERLY DAVIS AND PATRICIA MAYS, Appellants
MERLE FLAKES, ELOISE SQUARE, MARY JO EVANS, ANNIE KATHERINE WHITE, ELLA MAE ROLLINS, EDDIE ABNEY, GWEDOLYN BROWN, MARK HORTON, DAVID PAILIN, SR., DEE PATTERSON AND PENNY WHITE, Appellees
Appeal from the 160th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-04696
the Court En Banc
EN BANC OPINION
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
to decide the appropriate disposition of a case by an
appellate court when an appealing party does not challenge
all possible grounds that could support the trial court's
judgment. For nearly fifty years, the proper action has been
to affirm a judgment when the appealing party has failed to
show reversible error. See Malooly Bros., Inc. v.
Napier, 461 S.W.2d 119, 121 (Tex. 1970). This is not
affirmance of a judgment based on "briefing
waiver." It is affirmance based on the appellant's
failure to show that reversal of the judgment is required
which is the fundamental purpose of every appeal in our
adversarial system. See Tex. R. App. P. 44.1(a).
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, 201
S.W.3d 739, 743-44 (Tex. Crim. App. 2006) ("While this
provision [rule 38.9(b)] gives the appellate courts some
discretion in remedying 'substantive defects' in
parties' briefs, it does not allow the court of appeals
to reach out and reverse the trial court on an issue that was
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
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.
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
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 grounds it
was granting the motion. Where an order does not specify the
grounds on which it is based, appellants must show that each
independent ground is insufficient to support the order.
McMahon Contracting, L.P. v. City of Carrollton, 277
S.W.3d 458, 468 (Tex. App.-Dallas 2009, pet. denied).
appeal, appellants challenge only the second of these grounds
for dismissal. We must affirm a trial court's
judgment or order unless we are shown reversible error.
See Tex. R. App. P. 44.1(a) ("No judgment may
be reversed on appeal on the ground that the trial court made
an error of law unless the court of appeals concludes that
the error complained of: (1) probably caused the rendition of
an improper judgment; or (2) probably prevented the appellant
from properly presenting the case to the court of
appeals."). If the appellant fails to challenge all
possible grounds, we must accept the validity of the
unchallenged grounds and affirm the adverse ruling. See
Malooly Bros., 461 S.W.2d at 121 ("The judgment
must stand, since it may have been based on a ground not
specifically challenged by the plaintiff and since there was
no general assignment that the trial court erred in granting
summary judgment."); see also RSL Funding, LLC v.
Pippins, 499 S.W.3d 423, 434 (Tex. 2016) (per curiam)
("Although the court of appeals erred by holding RSL
waived its right to arbitrate by litigation conduct, in a
footnote it said it would have affirmed the trial court's
rulings on the alternative basis that RSL did not challenge
one ground on which the [trial court] could have ruled in
denying RSL's motion to stay the litigation-RSL failed to
join its assignees in the arbitration. RSL urges that as to
that part of its decision, the court of appeals was in error.
But after reviewing RSL's briefs in the court of appeals,
we agree with the appeals court and will affirm.");
Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d
77, 83 (Tex. 1977) (concluding appellant's failure to
challenge separate and independent ground of recovery for
negligence required affirmance of judgment); Midway
Nat'l Bank v. W. Tex. Wholesale Supply Co.,
453 S.W.2d 460, 461 (Tex. 1970) (per curiam) (affirming
judgment when appellant failed to attack independent legal
conclusion that "fully supported"
judgment). This result is inescapable because
appellants cannot demonstrate they are harmed by one
erroneous basis for a trial court's ruling if other bases
exist that they failed to challenge. See Oliphant Fin.
LLC v. Angiano, 295 S.W.3d 422, 424 (Tex. App.-Dallas
2009, no pet.) ("If an independent ground fully supports
the complained-of ruling or judgment, but the appellant
assigns no error to that independent ground, we must accept
the validity of that unchallenged independent ground, and
thus any error in the grounds challenged on appeal is
harmless because the unchallenged independent ground fully
supports the complained-of ruling or judgment.");
Britton v. Tex. Dep't of Criminal Justice, 95
S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.)
("any error in the grounds challenged on appeal is
harmless because the unchallenged independent ground fully
supports the complained-of ruling or judgment").
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, 298 S.W.3d
at 313. 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, 915
S.W.2d at 473; 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, 333 S.W.3d 265, 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 at 270, citing Cruikshank v.
Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 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., 915 S.W.2d at 473;
Jarvis, 298 S.W.3d at 313.
Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568,
571-72 (Tex. App.-El Paso 2014, no pet.) (footnote omitted).
Texas Supreme Court has not overruled Malooly or
provided authority that would allow us to sua sponte identify
a potentially reversible issue not briefed by appellants and
then offer appellants the opportunity to further brief that
issue. Contrary to the dissenting opinions' view of rule
38.9(b), the text of this rule does not authorize issue
identification by an appellate court and supplemental
briefing. See Tex. R. App. P. 38.9(b). Moreover,
directing rebriefing on an issue not raised in
appellants' opening 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-which is not permitted. See Tex. R. App. P.
38.3; City of San Antonio v. Schautteet, 706 S.W.2d
103, 104 (Tex. 1986) (per curiam) ("[T]he court of
appeals should not have addressed the constitutional
challenge. Schautteet raised the issue of violation of the
open courts provision for the first time in a reply brief
filed on appeal."); Powell v. Knipp, 479 S.W.3d
394, 408 (Tex. App.- Dallas 2015, pet. denied) ("Issues
raised for the first time in a reply brief are ordinarily
waived and may not be considered by an appellate
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, 440 S.W.3d 863, 872 (Tex.
App-El Paso 2013, pet. denied) ("Appellate courts are
required to construe briefs reasonably, yet liberally, so
that the right to appellate review is not lost by waiver, and
in so doing, we should reach the merits of an appeal whenever
reasonably possible. At the same time, 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.") (internal citation omitted); Valadez v.
Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no
pet.) ("An appellate court has no duty-or even right-to
perform an independent review of the record and applicable
law to determine whether there was error. Were we to do so,
even on behalf of a pro se appellant, we would be
abandoning our role as neutral adjudicators and become an
advocate for that party."). "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." Nelson, 562
U.S. at 148 n.10 (citation omitted).
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, 392 S.W.3d 88, 103 (Tex. 2012) ("Subject
matter jurisdiction cannot be waived or conferred by
agreement, can be raised at any time, and must be considered
by a court sua sponte."). We are not the first court of
appeals to observe this is an exception to Malooly.
See Britton, 95 S.W.3d at 681 n.6. But in this case
neither we nor the parties question our appellate
jurisdiction, and we did not question subject matter
jurisdiction for the first time on appeal. Rather, appellees
challenged subject matter jurisdiction in the trial court on
the two grounds in their amended motion to dismiss and plea
to the jurisdiction. The supreme court's express
direction regarding subject matter jurisdiction supports our
conclusion that only if the supreme court clearly and
unequivocally construed rule 38.9(b) to require us to
identify and suggest briefing on some other issue not raised
by an appellant would we consider ourselves authorized to do
so. The text of rule 38.9(b) does not compel that conclusion.
dissents' view of rule 38.9(b) is that every notice of
appeal necessarily brings forward all issues pertaining to
the dispositive rulings of the trial court such that when a
party fails in its brief to challenge one of those issues,
arguments, reasons, bases, or grounds, "the case has not
been properly presented in the briefs." Tex.R.App.P.
38.9(b). According to the dissents, every deficiency can be
viewed as briefing waiver falling within the ambit of rule
38.9(b). But we do not consider rule 38.9(b) an overarching
edict on appellate practice. Its provisions neither subsume
nor supplant our adversarial system and all substantive and
procedural law on appellate briefing.
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
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., 490 U.S. 477, 484 (1989) ("If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the [court] should follow the case which directly
controls, leaving to this Court the prerogative of overruling
its own decisions."); Owens Corning v. Carter,
997 S.W.2d 560, 571 (Tex. 1999) (same); In re Smith
Barney, Inc., 975 S.W.2d 593, 598 & n.27 (Tex. 1998)
(same); Va. Indon. Co. v. Harris Cty. Appraisal
Dist., 910 S.W.2d 905, 912 (Tex. 1995) (same); In re
Fort Apache Energy, Inc., 482 S.W.3d 667, 669 (Tex.
App.-Dallas 2015) (orig. proceeding) (same).
appellants fail to challenge all grounds upon which the trial
court could have granted appellees' amended motion to
dismiss and plea to the jurisdiction, we have no discretion
to do anything other than to accept the validity of the
unchallenged ground. See Malooly Bros., 461 S.W.2d
affirm the trial court's judgment.
Schenck, J., dissenting joined by Bridges, Fillmore, Myers,
and Boatright, JJ.
Boatright, J., dissenting.
with Justice Schenck's dissent and write separately to
make an additional point.
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.
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.
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.
starting point of construing a legal provision must be the
provision itself. In re City of Georgetown, 53
S.W.3d 328, 331 (Tex. 2001) (orig. proceeding). The Texas
Supreme Court has told us to read rules of procedure the same
way we read statutes. Id. at 332. We presume that
the entire enactment is intended to be effective. Tex.
Gov't Code Ann. § 311.021(2) (West 2017). The title
of rule 38.9 is, "Briefing Rules to Be Construed
Liberally." Tex.R.App.P. 38.9. Therefore, we have to
read the briefing rules liberally.
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.
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 in
rule 38.1(i) that they present an adequate argument. Because
the parties do not have to fully comply with the requirement
that they present and argue all the issues, and because the
point of briefing is to acquaint us with the issues of the
case, it sure seems like the text of rule 38.9 would permit
the inference that we can ask the parties to brief us on
issues they initially failed to brief. I think that is the
natural reading of the rules, particularly in ...