DIFFERENT VIEWS ON BRIEFING WAIVER FROM THE COURTS OF APPEALS

Transcription

1 Presented: State and Federal Appeals June 5 6, 2014 Austin, Texas DIFFERENT VIEWS ON BRIEFING WAIVER FROM THE COURTS OF APPEALS Thomas S. Leatherbury THOMAS S. LEATHERBURY Vinson & Elkins L.L.P Ross Avenue, Suite 3700 Dallas, Texas tleatherbury@velaw.com (214)

2 TABLE OF CONTENTS I. Introduction... 1 II. Texas Rule of Appellate Procedure 38: Requisites of Briefs... 1 III. Briefing Waiver in the Supreme Court: Arguments Should Be Liberally Construed To Avoid Waiver... 2 IV. Briefing Waiver in the Courts of Appeals... 4 A. Inadequate Citations to Authority Citations to general authority Citations to analogous authority... 6 B. Inadequate Citations to the Record... 7 C. Inadequate Argument or Analysis... 8 V. Epidemic or False Alarm?: A Quantitative Look at Briefing Waiver VI. Tips for Avoiding a Finding of Appellate Briefing Waiver VII. Conclusion i

3 Cases TABLE OF AUTHORITIES Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237 (Tex. App. Houston [1st Dist.] 2006, no pet.)... 7, 10 Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893 (Tex. App. Dallas 2010, no pet.)... 8 Brock v. Sutker, 215 S.W.3d 927 (Tex. App. Dallas 2007, pet. denied)... 9 City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004)... 4 Dolenz v. Dallas Cent. Appraisal Dist., 293 S.W.3d 920 (Tex. App. Dallas 2009, pet. denied)... 4 E.I. Du Pont v. de Nemours & Co. v. Robinson, 923 S.W. 2d 549 (Tex. 1995)... 5 El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (Tex. 1999)... 3 Five Star Int l Holdings, Inc. v. Thomson, Inc., 324 S.W.3d 160 (Tex. App. El Paso 2010, pet. denied)... 9 Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994)... 2 In re B.T., No CV, 2011 WL (Tex. App. Dallas July 20, 2011, no pet.) (mem. op.)... 8, 9 In re Freestone Underground Storage, Inc., --- S.W.3d ---, 2014 WL (Tex. App. Texarkana Mar. 14, 2014, orig. proceeding) Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300 (Tex. 1987)... 2 King v. Graham Holding Co., Inc., 763 S.W.2d 296 (Tex. App. Houston [14 th Dist.] 1988, no writ)... 2 Kupchynsky v. Nardiello, 230 S.W.3d 685 (Tex. App. Dallas 2007, pet. denied)... 7, 9 Morton v. Nguyen, 412 S.W.3d 506 (Tex. 2013)... 3 Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008)... passim Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423 (Tex. 2004)... 3 Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I 331 S.W.3d 500 (Tex. App. El Paso 2010, pet. denied)... 8 Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist., 198 S.W.3d 300 (Tex. App. Texarkana 2006, pet. denied)... 6, 13 Texas Mut. Ins. Co. v. Sara Care Child Care Center, Inc., 324 S.W.3d 305 (Tex. App. El Paso 2010, pet. denied)... 6 Verburgt v. Domer, 959 S.W.2d 615 (Tex. 1997)... 2, 3 ii

4 Weeks Marine, Inc. v. Garza, 371 S.W.3d 157 (Tex. 2012)... 3 Rules TEX. R. APP. P TEX. R. APP. P TEX. R. APP. P Other Authorities Patricia J. Askew, Intermediate Appellate Court Use of Rule 38.1(i): Epidemic or False Alarm, 24 App. Advoc. 403 (Spring 2012)... 7 David M. Gunn, Unsupported Points of Error on Appeal, 32 S. TEX. L. REV. 105 (1990)... 1, 2 Stacy R. Obenhaus, Ten Things The Texas Courts of Appeals Could Do Better (According to the Appellate Bar), University of Texas 22nd Annual Conference on State and Federal Appeals (2012)... 1 iii

5 I. Introduction 1 Brief writing is an exercise in resource allocation. Appellate attorneys must select the best issues for appeal and carefully balance efficiency against effectiveness in deciding how to brief each issue. Inevitably some issues will receive prime attention, others will receive relatively short shrift, and still others will be jettisoned altogether. Like brief writing, opinion writing is also an exercise in resource allocation. The intermediate appellate courts are given few resources to manage increasingly crowded dockets. And, unlike the Texas Supreme Court, the intermediate appellate courts must decide every appeal they receive regardless of the number and complexity of the issues presented. In this environment, a court of appeals ability to avoid deciding an issue by concluding that the issue has been inadequately briefed i.e., by finding briefing waiver can be a blunt (but effective) tool for docket control. As one appellate practitioner has commented, the power of a court to find briefing waiver constitutes an important weapon of self-defense for any court under time pressure. See David M. Gunn, Unsupported Points of Error on Appeal, 32 S. TEX. L. REV. 105, 106 (1990). While finding briefing waiver may be an effective way for a busy appellate court to cut through issues in a burgeoning docket, use of briefing waiver as a tool for docket control can produce undesirable consequences. One appellate attorney has noted that a finding of waiver by a court almost guarantees that the malpractice carrier be notified, the client is lost, and the lawyer humiliated. Stacy R. Obenhaus, Ten Things The Texas Courts of Appeals Could Do Better (According to the Appellate Bar), University of Texas 22nd Annual Conference on State and Federal Appeals (2012) at 4 (quoting survey respondent). An appellate ruling that an attorney has not adequately briefed an issue can have a significant, negative impact on the attorney client relationship. Use of the briefing waiver rules for docket control harms the judicial system as well by frustrating the development of the law This paper will explore the briefing requirements set forth in the Texas Rules of Appellate Procedure and explain how those requirements have been construed by the Supreme Court of Texas. Then, using the briefing requirements as a guide, the paper will evaluate court opinions finding that arguments have been waived through inadequate briefing. This anecdotal survey of specific instances in which courts have found briefing waiver demonstrates that courts may sometimes be reaching to find waiver in briefs that appear to satisfy both the letter and the spirit of the appellate briefing rules. The paper then backs up the results of the anecdotal survey by presenting a more rigorous quantitative analysis of briefing waiver statewide. This paper concludes with a call for appellate courts to apply the briefing rules more uniformly and predictably. II. Texas Rule of Appellate Procedure 38: Requisites of Briefs The authority of an appellate court to find briefing waiver originates in Texas Rule of Appellate Procedure Rule 38.1 guides the practitioner regarding what an appellant s brief must contain. The mandate for what the argument must contain is deceptively simple: The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Id. 38.1(i) (emphasis added). On its face, Rule 38.1(i) appears to provide bright-line clarity about what differentiates an adequately briefed issue from an inadequately briefed one. For an issue to be adequately briefed, three things must be present: (1) a clear and concise argument, (2) citations to authorities, and (3) citations to the record. Of course, the appellant s argument and citations may not carry the day on the merits, but the presence of argumentative reasoning and citations to the law and the record should be enough to ensure that the merits are addressed. As explained below, however, the courts have added judicial gloss to Rule The speaker thanks associates Michael A. Heidler and Travis R. Wimberly of Vinson & Elkins LLP for their work on this updated paper. 1

6 III. Briefing Waiver in the Supreme Court: Arguments Should Be Liberally Construed To Avoid Waiver A review of the Supreme Court s modern briefing waiver jurisprudence begins with Inpetco, Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300 (Tex. 1987). Inpetco, a one-page per curiam opinion interpreting the briefing requirements of Rule 74 (the precursor to Rule 38) in light of the waiver provisions of Rule 83 (now Rule 44.3), appeared to fire a shot across the bow of those courts of appeals too quick to find waiver. In relevant part, the opinion held, benefit of proper study, and then to be required to send the cause back to the beginning of the process for rebriefing and perhaps reargument. Although the wheels of justice turn slowly, they need not roll over the same ground twice. 762 S.W.2d 296, 299 (Tex. App. Houston [14th Dist.] 1988, no writ). In the wake of the decision, courts variously (1) distinguished Inpetco and overruled unsupported points of error, (2) followed Inpetco and ordered rebriefing, or (3) ignored Inpetco altogether. Gunn, supra, at 122. [T]he court disapproves that portion of the court of appeals opinion which states Inpetco waived its point of error by failing to comply with the briefing requirements of Tex. R. App. P. 74. Rule 74 should be read in conjunction with Tex. R. App. P. 83 which provides, 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.... The court of appeals erred in affirming the trial court on the basis of Inpetco s briefing inadequacies without first ordering Inpetco to rebrief. Id. at 300. The decision seemed to suggest and intermediate courts feared that it dictated that appellate courts could not find issues to be waived through inadequate briefing without first giving the appellant a chance to submit a corrected brief. Although the Texas courts of appeals may have not known what to do with Inpetco, Gunn, supra, at 121, they were swift to criticize what they feared would be the consequences of the decision. As the Fourteenth court of appeals wrote in King v. Graham Holding Co., Inc., It would be intolerable for an appellate court to be forced to spend an inordinate amount of time preparing for submission of a case, to hear oral arguments without the 2 In 1994, the Supreme Court addressed the confusion spawned by the Inpetco decision and clarified the settled rule that an appellate court has some discretion to choose between deeming a point waived and allowing amendment or rebriefing. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). The Court reassured the intermediate appellate courts that, Despite its broad language, Inpetco should not be read as overruling or modifying prior cases holding that error may be waived by inadequate briefing. Id. Rather than articulating a standard for briefing waiver, however, the Court stated that whether a court s discretion to find waiver has been properly exercised depends on the facts of the case. Id. Although the Court has had occasion to address particular instances of briefing waiver in subsequent cases, Fredonia remains the primary case that the Texas courts of appeals cite as the source of their briefing waiver power. Although the Supreme Court has not directly addressed the briefing waiver standard under Rule 38.1(i), the Court has touched on the waiver issue in several recent cases and has spoken more generally on the issue of appellate brief procedural defects. The leading post-fredonia case on how appellate courts should construe the Texas Rules of Appellate Procedure is Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997). There, the Court stated, This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal. We have