ST. JOHN MISSIONARY BAPTIST CHURCH, Symphuel Anderson, Beverly Davis and Patricia Mays, Appellants v. 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

No. 05-16-00671-CV

Court of Appeals of Texas, Dallas.

Opinion Filed March 29, 2018. Rehearing En Banc Denied May 1, 2018

Nicole Renee Taylor, West & Associates, L.L.P., Dallas TX, for Appellants.

Jonathan Chatmon, Houston TX, for Appellees.

Ben Taylor, pro se Amicus Curiae.

Before the Court En Banc

**EN BANC OPINION**

Opinion by Justice Evans

> " '*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 *313all 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).

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* , 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 not raised.").

**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 *314grounds it was granting the motion.2 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).

On appeal, appellants challenge only the second of these grounds for dismissal.3 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 *315reviewing 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).4 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").

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,*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).

The Texas Supreme Court has not overruled *Malooly* or provided authority that would allow us to sua sponte identify a *316potentially 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 court.").

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,*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, 131 S.Ct. 746 (citation omitted).

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* , 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.

*317The 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.5

"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.* , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (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).

*318Because 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 at 121.

**CONCLUSION**

We affirm the trial court's judgment.

Schenck, J., dissenting joined by Bridges, Fillmore, Myers, and Boatright, JJ.

1

*Nat'l Aeronautics & Space Admin. v. Nelson* , 562 U.S. 134, 148 n.10, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) (quoting *Carducci v. Regan* , 714 F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.) ).

2

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* , 319 S.W.3d 649, 653 (Tex. 2010) ("Express decretal language in a judgment controls over recitals.") citing *Magnolia Petroleum Co. v. Caswell* , 1 S.W.2d 597, 600 (Tex. Comm'n App.1928, judgm't adopted) and *Nelson v. Britt* , 241 S.W.3d 672, 676 (Tex. App.-Dallas 2007, no pet.) ("[W]here there appears to be a discrepancy between the judgment's recital and decretal paragraphs, a trial court's recitals, which precede the decretal portions of the judgment, do not determine the rights and interests of the parties.").

3

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."

4

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, 545 S.W.3d 542, 546 n.5, 2018 WL 1440160, at *2 n.5 (Tex. Mar. 23, 2018) (per curiam); *Plexchem Int'l, Inc. v. Harris Cty. Appraisal Dist.* , 922 S.W.2d 930, 930-31 (Tex. 1996).

5

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.

Boatright, J., dissenting.

DAVID J. SCHENCK, JUSTICE, dissenting.

**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* , 319 S.W.3d 649 (Tex. 2010), binds us to conclude that the trial court's detailed references to the standing issue-without making like reference to the ecclesiastical-abstention doctrine-cannot limit the reach of the judgment, though it likely influenced all parties in their understanding of the trial judge's intent. Where I disagree with the majority is with its adherence to prior panel precedent handed down shortly before and after the 1997 rules amendments, providing for the termination of the appeal rather than a resolution on the merits in the face of what we deem a briefing deficiency.2 I write separately to explain why I believe those cases were incorrectly decided in view of several supreme court decisions and the plain language of rules 43.2 and 44.3, which governs the circumstances by which we might dismiss an appeal or affirm without regard to the merits, and rule 38.9, which governs the filing of a deficient brief in particular.

**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 *319revoked and that their appearance on Church property would be considered a trespass without further notice.

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.3 Appellees relied on this removal provision to argue a lack of standing in their plea to the jurisdiction, along with their related argument that the ecclesiastical-abstention doctrine bars challenges of any kind to the operation of the Church or the management of its property.

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.4

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.

*320Rule 42.3, entitled "Involuntary Dismissal in Civil Cases," actually governs both dismissal and affirmance of the appealed judgment on account of "the appellant['s] fail[ure] to comply with a requirement of these rules." TEX. R. APP. P. 42.3. While it authorizes the appellate court to dismiss or affirm on its own initiative, as we have here and in other cases, it requires us to give "ten days' notice to the parties" prior to doing so. Rule 44.3 addresses all defects in procedure, including briefing defects, and provides: "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." *Id.* 44.3. At one time, that rule was read to compel appellate courts to provide notice and opportunity to cure a briefing deficiency such as the one we confront here. *See**Inpetco, Inc. v. Tex. Am. Bank,*729 S.W.2d 300 (Tex. 1987) (per curiam). As discussed below, that ruling was later revised to leave courts "*some discretion* to choose between deeming a point waived and allowing amendment or re-briefing" before the addition of rule 38.9(b). *Fredonia State Bank v. Gen. Am. Life Ins. Co.* , 881 S.W.2d 279, 284 (Tex. 1994) (emphasis added). In 1997, rule 38.9, entitled "Briefing Rules to Be Construed Liberally" was amended to include a provision dealing specifically with briefing defects:

> **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.,*86 Tex. 179, 23 S.W. 1100, 1103 (1893) (on rehearing).5 The rules, now as then, are to be read "reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule." *Republic Underwriters Ins. Co. v. Mex-Tex, Inc.* , 150 S.W.3d 423, 427 (Tex. 2004). We should thus favor any "arguable interpretation" of the rules that would support a merits disposition. *Ryland Enter. v. Weatherspoon* , 355 S.W.3d 664, 665 (Tex. 2011).

**III. A Brief History of Briefing Waiver**6*321**A. Pre-1997 Amendments**

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.7*See* TEX. R. APP. P. 74(d) (former rules) (reprinted at 707 S.W.2d LXXIV (1986) ). Former rule 74(p) provided for re-briefing in cases of "flagrant violation," stressing that briefs were intended to "acquaint the court with the points relied on." *Id.* Paralleling current rule 44.3, the rules also directed that a case should not be decided on the basis of "defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend." *See* TEX. R. APP. P. 83 (former rules).

Beginning in 1987, the supreme court handed down a series of decisions that applied former rule 83 to briefing waivers. *Compare**Inpetco* , 729 S.W.2d at 300 (disapproving court of appeals opinion finding waiver by failure to comply with briefing rules "without first ordering Inpetco to rebrief"), *with**Davis v. City of San Antonio* , 752 S.W.2d 518, 521 (Tex. 1988) (refusing to remand to court of appeals where respondent failed to include argument seeking remand in its brief to the supreme court or to raise the issue until after argument in the supreme court). These decisions culminated in *Fredonia* , 881 S.W.2d 279. In *Fredonia* , the court adhered to "the settled rule" that an appellate court "has *some discretion* to choose between deeming a point waived and allowing amendment or re-briefing," stressing that "*whether that discretion has been properly exercised depends on the facts of the case.* " *Id.* at 284-85 (emphasis added). Intermediate courts were thus allowed "some discretion *322in ordering re-briefing" with an eye toward balancing a just result with the need for a prompt resolution in each case. *Id.* at 285.

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, 1994 WL 728870, at *6 n.8 (Tex. App.-Dallas Dec. 22, 1994, no writ) (not designated for publication).8 The court's opinions throughout this period appear to have treated an issue as waived by inadequate briefing without any apparent indication of consideration of *Fredonia* or the prospect of requesting re-briefing. *See, e.g.* , *Tindle v. Jackson Life Ins. Co.* , 837 S.W.2d 795, 801 (Tex. App.-Dallas 1992, no writ) ; *Almanza v. Transcon. Ins. Co.* , No. 05-95-00960-CV, 1996 WL 429303, at *5 (Tex. App.-Dallas July 23, 1996, no writ) (not designated for publication).

**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* , 16 S.W.3d 829, 843 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). As relevant here, the amended rules abandoned the former "point of error" designation practice9 and, as before, required notice and an opportunity to cure formal briefing deficiencies or affirmance for rules violations. TEX. R. APP. P. 42.3, 44.3. In addition, the rule mandating liberal construction of the briefing rules, captioned "Briefing Rules to Be Construed Liberally," was amended to address substantively deficient briefs, timing, and the options available to courts of appeals to assure "a satisfactory submission." *Id.* 38.9(b).

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* , 3 S.W.3d 77, 87 (Tex. App.-Dallas 1999, no pet.) (citing pre-amendment authority and finding "point of error" waived); *McIntyre v. Wilson* , 50 S.W.3d 674, 680 (Tex. App.-Dallas 2001, pet. denied) (same). To be sure, some of these opinions relied on *Malooly Bros., Inc. v. Napier* , 461 S.W.2d 119 (Tex. 1970), for the proposition that a summary judgment will be upheld if the appellant fails to challenge a ground upon which the motion *323may have been granted, notwithstanding that *Malooly* was grounded in the abandoned "point of error" designation regime and pre-dates the amendments to our rules, thus depriving the appellant of the opportunity to address the issue after having been given notice and the opportunity to cure under rule 38.9.10 Of course rule 38.9(b) makes no distinction between briefs that do not properly present the case on account of a failure to address an argument, as opposed to a failure to cite sufficiently to the law or the record. In all of these circumstances, we have found the brief to foreclose a merits resolution and to preclude supplementation after submission since our early post- *Inpetco* cases. These decisions have been controlling pending intervening supreme court decision or this court ruling en banc, and thus our practice since has been simply to cite these cases and their progeny without discussion of rule 38.9(b). *E.g.,**MobileVision Imaging Servs. v. LifeCare Hosp. of N. Tex.* , 260 S.W.3d 561, 566 (Tex. App.-Dallas 2008, no pet.).

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.11 Considering that the supreme court had already read the rules of more general application, like rule 44.3, to require (or at least permit) correction of briefs found to be deficient at the time of submission, it is not surprising that the supreme court would add the text concerning substantive briefing deficiencies directly into rule 38 governing briefing and *324alongside rule 38.9(a), governing less substantive deficiencies, to promote compliance from inferior courts.

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.12 Rule 38.9(b), though it governs substantive defects in briefs that preclude a satisfactory (i.e., merits) decision at the time of initial submission, is nevertheless a rule of procedure that was promulgated by the supreme court after *Inpetco* and *Fredonia* .13 If a panel finds itself unable to issue a merits decision at submission for any reason, simply noting the problem and permitting opportunity for amendment or supplementation as it deems helpful does not alter the rule to one of substance or overrule *Malooly* . For example, where a panel deems it appropriate to require additional briefing and the requirement is not complied with, dismissal or affirmance is still the result and *Malooly* would still govern. *See, e.g.* , *Albrecht v. Bank of N.Y. Mellon for CWABS, Inc.* , No. 05-17-000272-CV, 2018 WL 992023, at *3, 6 (Tex. App.-Dallas Feb. 21, 2018, no. pet. h.) (mem. op.) (detailing cause for affirmance/dismissal where notice of egregious defects was given but not cured); *In re S.F.* , 2 S.W.3d 389, 391 (Tex. App.-San Antonio 1999, no pet.) (Duncan, J., dissenting) (complying with rule 38.9(b) ).

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* , 732 S.W.2d 407, 414 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (en banc) (Hecht, J., concurring).

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 *325to compel the termination of the appeal.14 While Texas courts no doubt have engaged on this self-directed inquiry for undesignated error for ages, they did so because the parties were once required to make designations below or on appeal before they proved the alleged error in the argument section of their brief. At this point, the general notice of appeal functions to designate every possible rationale as subject to attack and leaves to the brief itself both the description of the issue and the argument in support. The brief either does that, and is sufficient, or it does not, and is deficient. When the brief is deficient, the problem is addressed in the rules themselves without regard to the type of deficiency involved or the label appended to it.

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.* , 106 S.W.3d 821, 824 (Tex. App.-Dallas 2003, pet. denied). Unfortunately, our opinions, in both their language and, more worryingly, their substance, still appear to echo the ancient designation regime.

*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;15 and (2) failure to *326include an adequate argument of the point in the body of the brief. *Malooly* sought to simplify summary judgment review in the point of error era by allowing a singular, broad statement of the issue and requiring development of the arguments or grounds in the argument portion of the brief. Thus, the majority's resort to *Malooly* underscores what would already appear obvious: that the standing and ecclesiastical exception are "grounds" or arguments related to the "issue" of the trial court's jurisdiction. Indeed, jurisdiction was the singular target of the plea that gave rise to the judgment and is subject to seemingly limitless grounds like the standing and abstention arguments raised below. As we no longer use "assignments" or "points" of error, the problem here is a failure to develop an argument as to one of the rationales offered below.

Having now adopted the federal "issues presented" practice and abandoned the pre-argument designation formalities that gave rise to *Malooly,*16 the first question to be asked is whether we might simply ignore the problem and consider the arguments made below in connection with the broader issue of jurisdiction. The majority borrows from Justice Scalia's framing of prohibition on "issue" spotting, having already embarked on its own *sua sponte* foray into the grounds urged below. I agree with that portion of Justice Scalia's admonishment regarding issue spotting from which the majority quotes *and* the rest of his statement, which it does not. Justice Scalia went on to observe: "[o]f course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing [them] through our own deliberation and research." *Regan* , 714 F.2d at 177 ; *see also**Kamen* , 500 U.S. at 100-01, 111 S.Ct. 1711 ; *Greene v. Farmers Ins. Exch.* , 446 S.W.3d 761, 764 n.4 (Tex. 2014) (distinguishing between "issues" and "arguments" for presentation and preservation purposes).17 Following that rule, the ecclesiastical exception would be a "ground" (or argument) for purposes of *Malooly* , leaving us free to consider it on our own (or to allow supplementation as needed) as part of our examination of the "issue" of the trial court's jurisdiction without fear of the charge of exceeding our role as a neutral. Were it otherwise (*i.e.* , if the ecclesiastical exception was the "issue" here rather than an "argument"), *Malooly* would have no application and the majority's probing of the record for another "issue" would run afoul of the very rule on which it relies. Conversely, if the ecclesiastical exception is properly seen as an "argument" arising under the broader issue of jurisdiction for purposes of our *sua sponte* identification of its presence below, it *327should continue to be so viewed for purposes of our ability to develop and address it under the federal practice to which Justice Scalia spoke.

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.* , 493 U.S. 120, 123, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989) (internal citations omitted); *accord**In re City of Georgetown* , 53 S.W.3d 328, 332 (Tex. 2001). As it seems plain that the case has not been properly presented in the briefs, the remaining question under the plain language of rule 38.9 is whether we have allowed for a satisfactory submission of the case.18

**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.* , 762 S.W.2d 296, 298-99 (Tex. App.-Houston [14th Dist.] 1988, no writ). Thus, read according to its plain language, in relation to other rules,19 and in view of the *328supreme court's directive to favor a plausible construction that supports a merits-driven result, rule 38.9(b) does not call for a material disruption of the court's docket.

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.20 But, where the parties have in fact preserved the issues below, timely appealed, and identified the issues for a decision on appeal, a brief that fails to adequately cite to authority or the record, or that omits an argument that is deemed to be included in the trial court's disposition of the issue, should not be fatal to the appeal. Instead, that deficiency simply amounts to "a failure to properly present the case on the briefs" and affords the court a number of efficient options under the rules.

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* , 12 Tex. 327, 329 (1854) (finding assignment of error insufficient but reaching merits); *Brock v. Sutker* , 215 S.W.3d 927, 929 (Tex. App.-Dallas 2007, no pet.) ; *Most Worshipful Prince* , 732 S.W.2d at 414. Thus, if after giving a brief the generous reading the rules direct, we are able to discern the issue,21 but find ourselves confronted with a deficient argument, a summary affirmance of the issue does not deprive the appellant (or cross appellant) of a merits decision and does not prejudice the party opposite who prevailed below and invariably urges affirmance. In this case, I do not believe that summary affirmance is available as the standing issue presents potentially thorny factual and legal questions, and the ecclesiastical-abstention doctrine is inherently fact bound.

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.*22 Embarking on our own analysis *329and a decision that would reverse, by looking, for example, to the trial court briefing, deprives the appellee of the ability to augment his argument on appeal.23 In all events, we have the discretion, informed by a preference for a merits resolution, to pursue a merits resolution where we deem it proper. The majority denies appellants substantive review of the issue they likely understood the trial court decided because appellants failed to brief an argument (or issue) they did not believe had been ruled upon. Couching the result as one driven by the lack of proof of harm ignores that the result is driven not by any merits consideration of the presence of error or harm, but our own *sua sponte* review of the record and application of prior precedent governing deficient briefs, avoiding the question of that precedent's fidelity to the rules and prior supreme court decisions applying them. This is the sort of injustice I believe this court has the discretion to prevent by requesting supplemental briefing under rule 38.9(b).

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* , 16 S.W.3d at 843. Adhering to *Fredonia* and reading the amended rules for their plain (or at least arguable) meaning would achieve both of those purposes.

*330**CONCLUSION**

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.

1

*Carducci v. Regan* , 714 F.2d 171, 177 (D.C. Cir. 1983) (opinion for the court by Scalia, J.).

2

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.

3

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."

4

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* , 319 S.W.3d at 653 ; *Nelson v. Britt* , 241 S.W.3d 672, 676 (Tex. App.-Dallas 2007, no pet.). However, any discrepancy between the trial court's recitals and the decretal portion of the order in this case is only implicit, and the parties could have reasonably concluded the trial court's order was based on appellees' contention appellants did not have standing. As our precedents broadly regard the recital as "form[ing] no part of the judgment," we are obliged to follow the decretal portion despite how the parties might have understood the order as a whole. *PMS Hospitality v. OM Realty Fin. Co.* , No. 05-09-00923-CV, 2011 WL 258694, at *1 (Tex. App.-Dallas Jan. 28, 2011, no pet.) (mem. op.); *Nelson* , 241 S.W.3d at 676.

5

*Fambrough v. Wagley* , 140 Tex. 577, 169 S.W.2d 478, 482 (1943) ("Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief.").

6

Our precedent at issue here may more properly be described as "briefing forfeiture." *Kontrick v. Ryan* , 540 U.S. 443, 458 n.13, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (quoting *United States v. Olano* , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("Although jurists often use the words interchangeably, forfeiture is the failure to make the timely assertion of a right[;] waiver is the 'intentional relinquishment or abandonment of a known right.' ") ); *United States v. Zubia-Torres* , 550 F.3d 1202, 1205 (10th Cir. 2008) ("[W]aiver is accomplished by intent, [but] forfeiture comes about through neglect."). I will refer to our usual description of waiver to avoid confusion.

7

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, 67 S.W. vii-xiv (1902). That practice, combined with highly formalized procedures in the trial court, like "bills of exception," heavily narrowed the universe of issues to be addressed in the brief on appeal. The error assignment regime was abandoned before World War II, though references to it continue to appear in modern decisions. *See**Brown Cty. Water Imp. Dist. v. McIntosh* , 164 S.W.2d 722, 723 & n.1 (Tex. Civ. App.-Eastland 1942, writ ref'd w.o.m.) (pretermitting consideration of need to direct re-briefing of inadequate appellant's brief and detailing rules amendments to that time). Under the new rules, parties are now permitted to use the federal courts' "issues presented" practice rather than the former "point of error" practice. *Stephenson v. LeBoeuf* , 16 S.W.3d 829, 843 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (quotation omitted). The new "issues presented" practice signals the intention of the supreme court to have all appeals judged on the merits of controversies rather than hyper-technical waiver issues. *Id.* The federal practice we adopted was well developed at the time and distinguished between "issues," which, subject to few exceptions like subject matter jurisdiction, only the parties can raise, and the subsidiary arguments and authorities that resolve them, which a court is free to develop on its own. *Kamen v. Kemper Fin. Servs. Inc.* , 500 U.S. 90, 99-100, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) ; *Regan* , 714 F.2d at 177 (Scalia, J.). Of course, "prudence," if not the plain language of rule 38, would often suggest avoidance of waiver and development through supplemental briefing. *U.S. Nat'l Bank of Oregon v. Indep. Ins. Agents of Am., Inc.* , 508 U.S. 439, 445-47, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993).

8

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* , 32 S. Tex. L. Rev. 105, 126 (1990) (describing our jurisprudence at the time). In fairness, as Justice Cornelius noted, "this case produced a wave of confusion. ... Some courts of appeals simply ignored *Inpetco* , some distinguished it, and others seemingly refused to follow it." William J. Cornelius & David F. Johnson, *Tricks, Traps and Snares in Appealing a Summary Judgment in Texas* , 50 Baylor L. Rev. 813, 863 (1998).

9

"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* , 16 S.W.3d at 843.

10

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.

11

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.

12

*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* , 499 S.W.3d 423 (Tex. 2016) (per curiam).

13

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.

14

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.* , 762 S.W.2d 296, 299 (Tex. App.-Houston [14th Dist.] 1988, no writ).

15

This designation requirement predictably led to breakdowns and a series of decisions mandating generous construction to facilitate merits resolution. *E.g.,**Fambrough* , 169 S.W.2d at 482 ("Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. ...Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in the light of the statement and argument thereunder."); *Aetna v. Chapel Hill I.S.D.* , 860 S.W.2d 667, 669 (Tex. App.-Tyler 1993, no writ) ("Aetna prays this Court grant it all the relief sought in the trial court. The points of error do not follow the usual form seen in appeals in this state, but we will liberally construe them in light of the argument and prayer."). Even in this era, courts looked past the parties' description of the "issue" to include a review of the body of the argument regardless of how it was captioned or framed in a potentially deficient brief.

16

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).

17

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,*714 F.2d at 177. An issue identified *sua sponte* by the court is more problematic.

18

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.

19

Rule 38.7, governing amendments and supplements to briefs generally, permits revision on "reasonable terms" and directs revisions where "justice requires."

20

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* , 536 S.W.3d 510, 513 n.5 (Tex. 2017) ; *Dallas Metrocare Servs. v. Juarez* , 420 S.W.3d 39 (Tex. 2013). If standing was the "issue" in this case, rather than an argument or ground in relation to subject matter jurisdiction, one would assume that the alternate jurisdictional "ground" would not be swept into this appeal under *Malooly* so as to create the potential for waiver in the first place. Stated conversely, it is hard to fathom how standing is so related to the ecclesiastical exception to create the potential for *sua sponte* recognition of briefing waiver, but not to leave open the potential for cure under these rules. In all events, rule 38.9(b) does not draw the distinction between issues and arguments that underlie the general prohibition on parties raising new issues late in a case's life. It poses only the question of whether the case is properly presented in the briefs.

21

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).

22

David M. Gunn, *Unsupported Points of Error,*32 S. Tex. L. Rev. 105, 108-09 (1990-1991).

23

Of course, an appellee has the right to seek rehearing.

JASON BOATRIGHT, JUSTICE, dissenting.

**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* , 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.

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 *331in 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 light of the requirement that we read them permissively. The majority does not attempt to present a point or authority that would invite a different reading.

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 *332system 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.' " This language, however, had nothing to do with whether the court could ask for briefing on additional questions; it was about whether the court should-not *could* , incidentally, but *should* -answer a question that had not been briefed. Again, we are not talking about whether we can decide a case on an unbriefed question. We are talking about whether we can ask for briefing on a question that needs to be briefed for satisfactory submission. The majority does not offer a reason to conclude that the principle of neutrality would prohibit us from requesting such briefing, and I cannot think of one.

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.