Petition for Review from the Court of Appeals for the Fifth
District of Texas
than disposing of appeals based on harmless procedural
defects, "appellate courts should reach the merits of an
appeal whenever reasonably possible." Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008). In this
breach-of-contract case, a divided court of appeals affirmed
summary judgment, not on the merits, but based on remediable
record-citation errors in the appellant's brief.
___S.W.3d ___(Tex. App.-Dallas 2018). The court's
disposition conflicts with the rules of appellate procedure
and our briefing-waiver precedent. See Tex. R. App.
P. 38.9, 44.3. The appellate issues were preserved in the
trial court, identified in a timely appeal, and supported by
evidence in the record; the record-citation errors should not
have been fatal to the appeal absent a reasonable opportunity
to cure the defects. We reverse and remand.
acrimonious dissolution of Robbie Lesa Hames Horton and
Kimberly Stovall's personal and business relationship
culminated in the filing of several highly contentious
lawsuits, including this one. Through amendment, nonsuit, and
severance, a multitude of claims in the underlying litigation
were ultimately winnowed to a dispute over the performance of
a handwritten contract Horton and Stovall executed to settle
their interests in specific real and personal property. The
parties dispute the agreement's continuing effect but not
its formation. Horton alleges she was entitled to and did in
fact cancel the contract based on Stovall's alleged prior
series of partial summary judgments, the trial court granted
Stovall relief on her breach-of-contract claim, rendered
judgment in her favor on Horton's declaratory-judgment
counterclaim, and awarded attorney's fees to her as the
prevailing party. These interlocutory orders became final and
appealable when the trial court signed an order of nonsuit on
Stovall's declaratory-judgment action and severed
Horton's remaining counterclaim.
appeal challenged the severance order and all three summary
judgments. In six issues, Horton asserted that material fact
issues precluded summary judgment, the award of
attorney's fees was improper because evidence of
presentment and damages was lacking, and the trial court
improperly severed a compulsory counterclaim.
split decision, the court of appeals affirmed. ___S.W.3d at
___. The court held that severance was not improper because
Horton's counterclaim was pending in another lawsuit when
she asserted it in this case. Id. at ___(quoting
Tex.R.Civ.P. 97). The court further held that Horton did not
demonstrate that summary judgment was improper and, in fact,
had "not presented anything for [the court] to
review" because the documents she cited as raising a
fact issue were not part of the summary-judgment record.
Id. at ___, ___. The court primarily faulted Horton
for citing to documents in the appendix of her appellate
brief instead of providing citations to the clerk's
record. Id. But rather than allowing Horton an
opportunity to rectify that briefing defect, the court
treated Horton's citations to her appendix as citations
to the portion of the appellate record indicated on each
appendix document. Id. Unfortunately, the ostensible
leeway the court afforded proved to be Horton's undoing.
happens, Horton correctly identified the documents she was
relying on to support her appellate issues and those
documents were actually offered in opposition to
Stovall's summary-judgment motions, but the appendix
instead cited to those same documents where they were
attached to Horton's motion for continuance and motion
for new trial. Right documents, wrong record citations. These
citation errors led the court to conclude that the evidence
Horton relied on to raise a fact issue was outside the
summary-judgment record-a claim Stovall had (and has) never
also admittedly failed to provide pinpoint citations to three
emails Stovall had relied on to support her attorney's
fee claim. Horton's brief argued that the emails were
insufficient to meet the presentment requirement, but she
cited to the first page of the motion to which they were
attached rather than to the specific emails. Although
Stovall's brief had supplied the specific record
references in refuting Horton's argument, the court said
that "Horton was obligated to cite the appellate record,
not her appendix, and [the court was] not obligated to search
the eight volumes of the clerk's record to locate these
presentment emails." Id. at ___.
panel member dissented, asserting the majority's refusal
to address the merits of Horton's claims was erroneous
because (1) Texas Rules of Appellate Procedure 38.9 and 44.3
require a reasonable opportunity to correct formal defects
even if flagrant and (2) "pieces of evidence the
majority says were not in the record and were not properly
before the trial court actually were." Id. at
___. Employing minimal efforts to verify that the documents
Horton had described-and had attached to her brief-were in
fact part of the summary-judgment record, the dissent found
the briefs sufficient to decide the case on the merits.
Id. at ___("[A] simple search of our electronic
record for the word 'cancellation,' which is in the
subject line of the letter, locates the document in [six]
places in the Clerk's Record."). But the dissent
argued that even if that were not the case, Horton was
entitled to a reasonable opportunity to correct the defects
before the court affirmed summary judgment based on those
errors. Id. Relying on rules 38.9 and 44.3 and our
directive that appellate courts should resolve cases on the
merits whenever reasonably possible, the dissent opined:
"[W]hen we see citations to an appendix rather than the
record, we do not have to end our inquiry and declare that
there is nothing for us to review. Nor should we."
Id. (citing Perry, 272 S.W.3d at 587).
the opinion issued and Horton was alerted to the citation
errors, she filed a motion for rehearing with corrected
citations. The court of appeals overruled the motion.
agree with Horton that, at a minimum, she was entitled to a
reasonable opportunity to correct the defective record
citations in her appendix documents, which the appeals court
knew were actually included in the summary-judgment record.
When relevant evidence has been properly presented to the
trial court and included in the record for appellate review,
but a court is aware that a litigant's brief or appendix
incorrectly indicates the location of that evidence in the
record, rules 38.9 and 44.3 require the court to apprise the
parties and allow an opportunity for correction if the
citation errors thwart a merits-based disposition.
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." Tex.R.App.P. 38.9. Accordingly, briefs
are to be liberally, but reasonably, construed so that the
right to appeal is not lost by waiver. Id.; see
Perry, 272 S.W.3d at 587. "[S]ubstantial
compliance" with the briefing rules "is
sufficient," except that for substantive defects and
"flagrant" formal defects, the rules authorize
appellate courts to require supplemental or corrected
filings. Tex.R.App.P. 38.9.
38.9's discretionary language is tempered by the mandate
in rule 44.3 that "[a] court of appeals must not affirm
or reverse a judgment or dismiss an appeal for formal defects
or irregularities in appellate procedure without allowing a
reasonable time to correct or amend the defects or
irregularities." Tex.R.App.P. 44.3; Inpetco, Inc. v.
Tex. Am. Bank/Houston N.A., 729 S.W.2d 300, 300 (Tex.
1987) (reading rule 38's predecessor in conjunction with
rule 44's predecessor). Nevertheless, it is
"settled" that "an appellate court has some
discretion to choose between deeming a point waived and
allowing amendment or rebriefing" and "whether that
discretion has been properly exercised depends on the facts
of the case." Fredonia State Bank v. Gen. Am. Life
Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); compare
Inpetco, 729 S.W.2d at 300 (appellate court erred in
affirming based on briefing inadequacies without first
ordering rebriefing but affirmance was correct on the
merits), with Davis v. City of San Antonio, 752
S.W.2d 518, 521 (Tex. 1988) (refusing to remand when
respondent failed to include an argument seeking ...