Affirmed as Modified and Majority and Dissenting Memorandum Opinion s filed August 28 , 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00663

- CV

JEFFERSON COUNTY, TE XAS , Appellant

V.
DONNA DAVIS , Appellee

On Appeal from the 60th District Court Je fferson County, Texas Trial Court Cause No. B

- 182,252

DISSENTING MEMORANDUM OPINION
Assuming, as the majority concludes, that Issue No. 9 of the County’s brief raises a legal

- or factual

- sufficiency point of error regarding future mental anguish damages
, I agree with Davis that we should not reach the issue because of the County’s briefing waiver. 1 Therefore, I would affirm the trial court’s judgment in

1 The County’s first eight issues begin with the statement, “There is no evidence . . . .” Issue No. 9 complains about a “‘run

- away’ jury” and states: “The verdict of the jury as toits entirety. Because the majority reaches Issue No. 9 and reverses on that basis , I respectfully dis sent. Through her a ppellee’s brief, Davis urges that the County’s wholesale failure to cite to the record waives any sufficiency challenge to damages. Davis notes that the only category of damages attacked by the County is future mental anguish damages. By its nature, evidence of future mental anguish is speculative. Therefore, we call upon the jury to evaluate non

- speculative evidence and draw reasonable inferences about the future. Here, the County does not challenge the sufficiency of the evidence su pporting past mental anguish damages. I believe the County, as appellant, has committed textbook briefing waiver by failing to cite to or otherwise analyze why the unchallenged evidence underpinning the past mental anguish element does not in any way supp ort future mental anguish damages or does not support the amount awarded.
When an appellant’s brief fails to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record,” Tex. R. App. P. 38.1( i), then Rule 38.9 affords the appellate court two choices : (1) deem the appellant’s issue waived ; or (2) exercise discretion to allow
amendment or rebriefing. Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 284 (Tex. 1994) (noting the “set tled rule that an appellate court has some discretion to choose between deeming a point waived and allowing amendment or rebriefing”) ; Rendleman v. Clarke
, 909 S.W.2d 56, 59 (Tex. App.

— Houston [14th Dist.] 1995, writ dism’d) (same) . We construe briefs lib erally, expect substantial compliance, and “may” require a brief to be amended, supplemented, or redrawn for formal defects, and we “may” require additional

damages is so outrageous that it indicates that they failed to give the Defendant a fair hearing of the evidence it presented.”

2briefing for substantive defects

. Tex. R. App. 38.9. Th e rule does not afford an appellate court discretion to ignore or forgive briefing deficiencies and address the merits of an appellant’s point of error that does not comply with this rule.
I do not endorse a cavalier application of briefing waiver. For example, an appellant’s bare statement tha t there is “ no evidence ” does not waive a legal sufficiency point when the facts on appeal are undisputed and the gravamen of the sufficiency point is a question of law that the appellant has amply supported with
citations to relevant authorities. See Cit y of Arlington v. State Farm Lloyds , 145 S.W.3d 165, 167

– 68 (Tex. 2004)

. Similarly, an appellant does not waive the point when the appellant cites to all of the material facts in a statement of facts and merely fails to repeat the citations in its analysi s. See id. at 167. I completely agree that the Supreme Court rejects bright

- line briefing waiver under these
circumstances. See id . at 167

– 68. However, the Supreme Court also embraces briefing waiver where an appellant fails to cite to the record to supp ort a no

- evidence argument that the evidence is so weak as to do no more than create a mere surmise or suspicion

— when there is no more than a mere scintilla of evidence. See id. at 167 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” P oints of Error
, 38 Tex. L. Rev. 361, 363 (1960)). Thus, citation to the record is required “when
the vital fact must be inferred from other relevant facts and circumstances which are proved.” See Calvert, supra , at 363. Here, the County suggests that D avis’s evidence would not enable the jury to reach such an “outrageous award” of future mental anguish damages, which is “so excessive that the jury must have been dominated by passion or prejudice and could not have fairly weighed disputed evidence on the liability issue.” But, the amount of a party’s future mental anguish damages is one of those “vital facts” that

3may be inferred from other circumstantial evidence. See Saenz v. Fid. & Guar.
Ins. Underwriters , 925 S.W.2d 607, 614 (Tex. 1996) (direct evid ence not always required). Texas law permits jurors to make a reasonable inference that a party will suffer future mental anguish damages. Adams v. YMCA of San Antonio , 265 S.W.3d 915, 918 (Tex. 2008); see Wichita Cnty. v. Hart , 892 S.W.2d 912, 927 (Tex. App.

— Austin 1994) (jury could infer future mental anguish damages from past and present mental anguish when the terminated employee had not been reinstated; distinguishing case where the employee had been reinstated), rev’d on other grounds , 917 S.W.2d 77 9 (Tex. 1996). The County necessarily contends that the jury could not make a reasonable inference from the unchallenged evidence of past mental anguish that Davis’s past mental anguish would continue in the future. But, the County does no more to support that contention than mention the words “no evidence.”
Therefore, I view the County’s briefing of its ninth issue regarding future mental anguish damages as deficient to an extent that liberal construction cannot repair

. Within its ninth issue, t he County does not provide a single cit ation to any part of the 640

- page transcript of trial testimony , which includes testimony from the plaintiff
, the plaintiff’s co

- workers, and the p laintiff’s damages expert who was
also a close relative

. The County does not p rovide a single citation to any o ne of the 200 pages of exhibits

. And, t he County does not refer to any of the record
citations within the statement of facts
, perhaps because all such citations pertain to
the merits of liability

. The County presents no a nalysis of how the evidence
adduced in this five

- day trial

— including the unchallenged e vidence of past mental anguish

— when viewed under the appropriate standard of review, 2 amounts to

2 The County does not provide the standard of review for legal or factually sufficiency. Nor does the county cite any cases addressing the sufficiency of the evidence for future mental anguish damages.

4insufficient evidence or no evidence of future mental anguish damages.

B ecause Davis urged briefing waiver on this point, the County had ample opportunity to rebrief its ninth issue but did not. B ecause the County failed to rebrief, I would deem the County’s ninth issue waived. See Rendleman , 909
S.W.2d at 59 (deeming the ap pellant’s sufficiency issue waived because the appellant failed to cite to the record; declining to exercise discretion to allow rebriefing because the appellant failed to rebrief during the seven months since the appellee’s brief had been filed).

Accord ingly, I respectfully dissent.

/s/ Sharon McCally Justice
Panel consists of Justices Christopher, Jamison, and McCally. (Christopher, J., Majority).

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