Sunday, February 23, 2020

Devine Lonestar Legal Ethics: Destruction of evidence not foreign to the duties of an attorney in representing a client in a product-liability case. BETHEL v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., No. 18-0595 (Tex. Feb. 21, 2020)

BETHEL v. QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C.,
 and JAMES H. MOODY, III, No. 18-0595 (Tex. February 21, 2020) (no criminal-conduct exception to attorney immunity defense established by Texas Supreme Court in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) as a common-law doctrine).  

JUDICIAL TORT REFORM ON STEROIDS 

Take it from John P. Devine, member of the Texas Supreme Court, court of last resort and final authority on professional ethics: Attorneys for manufacturer are immune from civil liability for destroying evidence in wrongful-death case. 


BIGLAW OPPORTUNITY: MAKING THE WRONGFUL-DEATH PLAINTIFFS PAY

Defense attorneys now entitled to recover thousands of dollars of attorney's fees -- plus tens of thousands for the appeal -- from the victims who dared to sue; all in the name of a "liberal" construction of rule 91a of the Texas Rules of Civil Procedure - the frivolous-suit dismissal rule brought to a trial court near you thanks to statewide tort reform. 

IN THE SUPREME COURT OF TEXAS
444444444444
NO. 18-0595
444444444444
CHERLYN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE
OF RONALD J. BETHEL, DECEASED, PETITIONER
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H.
MOODY, III, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

JUSTICE DEVINE delivered the opinion of the Court. 

This case presents two issues: first, whether an affirmative defense may be the basis of a Rule 91a motion to dismiss; and second, whether the alleged destruction of evidence is an action “taken in connection with representing a client in litigation,” thus entitling the respondent attorneys to attorney immunity. 

We join the court of appeals in concluding that Rule 91a permits dismissal based on an affirmative defense. See 581 S.W.3d 306, 310 (Tex. App.—Dallas 2018). 

We also agree with the court of appeals that, on the facts of this case, the respondent attorneys are entitled to attorney immunity. See id. at 311-13. Accordingly, we affirm.

   [...]

Petitioner Cherlyn Bethel’s husband, Ronald, tragically died in a car accident while towing a trailer. Bethel sued the trailer’s manufacturer, alleging that the trailer’s faulty brakes caused the accident. Law firm Quilling, Selander, Lownds, Winslett & Moser, as well as attorney James “Hamp” Moody (collectively, Quilling), represented the manufacturer in the lawsuit. Bethel alleges that Quilling intentionally destroyed key evidence in the case by disassembling and testing the trailer’s brakes before Bethel had the opportunity to either examine them or document their original condition.

Bethel sued Quilling for, among other things, fraud, trespass to chattel, and conversion.1 Quilling moved to dismiss the case under Texas Rule of Civil Procedure 91a, arguing that it was entitled to attorney immunity as to all of Bethel’s claims. The trial court granted Quilling’s motion and dismissed the case. Bethel appealed, arguing that (1) affirmative defenses, such as attorney immunity, cannot be the basis of a Rule 91a dismissal, and (2) attorney immunity did not protect Quilling’s conduct.

[...]

Based on the facts alleged in Bethel’s petition, the courts below correctly concluded that attorney immunity shields Quilling from civil suit by a third party, whom Quilling did not represent, for conduct connected to Quilling’s representation of its client in litigation. Accordingly, the judgment of the court of appeals is affirmed.
________________________________________
John P. Devine
Justice
OPINION DELIVERED: February 21, 2020

Daring to seek justice  will cost you dearly.
Appealing injustice will cost you even more. 
Rule 91a Dismissal Attorney Fee Order in BETHEL v. QUILLING (Tex. 2020)
Rule 91a Dismissal Fee Order
https://www.law360.com/texas/articles/1246173/firm-immune-in-destroyed-evidence-case-texas-justices-say
Law360 Immunity News
https://www.law360.com/texas/articles/1246173/firm-immune-in-destroyed-evidence-case-texas-justices-say

Are Texas Attorneys Immune from Civil Liability for Criminal Conduct
Committed to Advance the Interests of a Client? 
shielding attorneys from civil liability for criminal conduct committed for the benefit of a client
Per Supreme Determination, these are Losing Arguments 

CHERLYN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF RONALD J. BETHEL, DECEASED, Petitioner,
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H. MOODY, III, Respondents.

No. 18-0595.
Supreme Court of Texas.
Argued November 7, 2019.
Marcie L. Schout, for James H. Moody, III and Quilling, Selander, Lownds, Winslett & Moser, P.C., Respondents.
Kyle Highful, Jeffrey C. Mateer, Warren Kenneth Paxton, Kyle D. Hawkins, Bill Davis, for State of Texas, Amicus Curiae.
Thad D. Spalding, E. Todd Tracy, Morgan A. McPheeters, Jessica A. Foster, Andrew G. Counts, Frederick Leighton Durham, III, Stewart D. Matthews, for Cherlyn Bethel, Individually and as the Representative of the Estate of Ronald J. Bethel, Deceased, Petitioner.

On Petition for Review from the Court of Appeals for the Fifth District of Texas.

JUSTICE DEVINE delivered the opinion of the Court.
JOHN P. DEVINE, Justice.

This case presents two issues: first, whether an affirmative defense may be the basis of a Rule 91a motion to dismiss; and second, whether the alleged destruction of evidence is an action "taken in connection with representing a client in litigation," thus entitling the respondent attorneys to attorney immunity. We join the court of appeals in concluding that Rule 91a permits dismissal based on an affirmative defense. See 581 S.W.3d 306, 310 (Tex. App.-Dallas 2018). We also agree with the court of appeals that, on the facts of this case, the respondent attorneys are entitled to attorney immunity. See id. at 311-13. Accordingly, we affirm.

I

Petitioner Cherlyn Bethel's husband, Ronald, tragically died in a car accident while towing a trailer. Bethel sued the trailer's manufacturer, alleging that the trailer's faulty brakes caused the accident. Law firm Quilling, Selander, Lownds, Winslett & Moser, as well as attorney James "Hamp" Moody (collectively, Quilling), represented the manufacturer in the lawsuit. Bethel alleges that Quilling intentionally destroyed key evidence in the case by disassembling and testing the trailer's brakes before Bethel had the opportunity to either examine them or document their original condition.
Bethel sued Quilling for, among other things, fraud, trespass to chattel, and conversion.[1] Quilling moved to dismiss the case under Texas Rule of Civil Procedure 91a, arguing that it was entitled to attorney immunity as to all of Bethel's claims. The trial court granted Quilling's motion and dismissed the case. Bethel appealed, arguing that (1) affirmative defenses, such as attorney immunity, cannot be the basis of a Rule 91a dismissal, and (2) attorney immunity did not protect Quilling's conduct.
The court of appeals affirmed. 581 S.W.3d 306. First, the court of appeals concluded that attorney immunity could be the basis of a Rule 91a motion because the allegations in Bethel's pleadings established Quilling's entitlement to the defense. Id. at 309-10. Second, the court of appeals reasoned that Quilling's actions, while possibly wrongful, were the "kinds of actions" that are part of an attorney's duties in representing a client in litigation. Id. at 311-13. Thus, the court of appeals held that attorney immunity barred all of Bethel's claims.[2]

II

Texas Rule of Civil Procedure 91a provides that a party "may move to dismiss a cause of action on the grounds that it has no basis in law or fact." TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. In ruling on a Rule 91a motion, a court "may not consider evidence . . . and must decide the motion based solely on the pleading of the cause of action." TEX. R. CIV. P. 91a.6. We review the merits of a Rule 91a motion de novo. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
Attorney immunity is an affirmative defense. Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). Bethel reasons that affirmative defenses are generally waived unless they are raised in the defendant's pleading. TEX. R. CIV. P. 94. Thus, Bethel contends, a court must look to the defendant's pleading to determine whether an affirmative defense is properly before the court. However, Rule 91a.6 expressly limits the court's consideration to "the pleading of the cause of action," together with a narrow class of exhibits. TEX. R. CIV. P. 91a.6. Because only a plaintiff's pleading is a "pleading of a cause of action," Bethel argues that courts may not consider a defendant's pleading in making a Rule 91a determination. Bethel therefore concludes that an affirmative defense can never be the basis of a Rule 91a motion.
We disagree. We interpret rules of procedure according to our usual principles of statutory interpretation. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 579 (Tex. 2012). We therefore begin with the text of the rule and construe it according to its plain meaning. Id. However, Texas Rule of Civil Procedure 1 provides that the rules of procedure "shall be given a liberal construction" to further the rules' objective of "obtain[ing] a just, fair, equitable[,] and impartial adjudication" of parties' rights. TEX. R. CIV. P. 1. We thus apply our general canons of statutory interpretation in light of this specific guiding rule. See, e.g., In re Bridgestone Ams. Tire Operations, LLC, 459 S.W.3d 565, 569 (Tex. 2015).
Bethel urges us to focus on the rule's requirement that the court "must decide the motion based solely on the pleading of the cause of action." TEX. R. CIV. P. 91a.6 (emphasis added). As Bethel sees it, this provision prohibits a court deciding a Rule 91a motion from considering anything other than the plaintiff's pleading. Of course, it is not possible to "decide the motion" without considering the motion itself, in addition to the plaintiff's pleading. Additionally, the rule provides that the court may hold a hearing on the motion. TEX. R. CIV. P. 91a.6. Thus, the rule contemplates that a court may consider at least the substance of the Rule 91a motion and arguments at the hearing, in addition to the plaintiff's pleadings, in deciding the motion. Bethel's proffered interpretation would render these aspects of the rule meaningless, preventing a court from considering even the substance of a Rule 91a motion or a response in deciding whether to dismiss the case. See Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (noting that in interpreting a statute, we avoid "absurd or nonsensical results" (quotations omitted)). Bethel's overly narrow interpretation of one piece of the rule simply does not comport with the text of the rule as a whole. See id. ("The statutory words must be determined considering the context in which they are used, not in isolation.").
Construing the rules of procedure liberally, as Rule 1 requires us to do, we conclude that Rule 91a limits the scope of a court's factual, but not legal, inquiry. We begin with the text of the rule. Ford Motor Co., 363 S.W.3d at 579. Rule 91a provides that "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action." TEX. R. CIV. P. 91a.6 (emphasis added). Thus, the rule contrasts "the pleading of the cause of action" with "evidence," not the defendant's pleading. This dichotomy indicates that the limitation is factual, rather than legal, in nature. Further, the rule provides that a court may dismiss a claim as lacking a basis in law "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." TEX. R. CIV. P. 91a.1. Again, the rule limits the scope of the court's factual inquiry—the court must take the "allegations" as true—but does not limit the scope of the court's legal inquiry in the same way. Rather, the rule provides that a claim lacks a basis in law if the facts alleged "do not entitle the claimant to the relief sought." Id. The rule does not limit the universe of legal theories by which the movant may show that the claimant is not entitled to relief based on the facts as alleged.
This interpretation accounts for the parts of the rule that allow courts to consider the substance of Rule 91a motions and hearings in addition to the plaintiff's pleadings. See TEX. R. CIV. P. 91a.6. Both motions and hearings are avenues by which the movant may present legal theories as to why the claimant is not entitled to relief. Thus, the legal-factual distinction avoids violence to the text of the rule as a whole while preserving the rule's intended limitation on factual inquiries.[3] See Silguero, 579 S.W.3d at 59 ("In interpreting statutes, we must look to the plain language, construing the text in light of the statute as a whole.").
Finally, Rule 1 directs us to consider expedition and cost to the parties and the state in construing rules of procedure. TEX. R. CIV. P. 1 ("To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction."). Our interpretation of Rule 91a serves these objectives by allowing courts to dismiss meritless cases before the parties engage in costly discovery. Forcing parties to conduct discovery when the claimant's allegations conclusively establish the existence of an affirmative defense would be a significant waste of state and private resources.
In sum, Rule 91a limits a court's factual inquiry to the plaintiff's pleadings but does not so limit the court's legal inquiry. In deciding a Rule 91a motion, a court may consider the defendant's pleadings if doing so is necessary to make the legal determination of whether an affirmative defense is properly before the court. We therefore conclude that Rule 91a permits motions to dismiss based on affirmative defenses "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." TEX. R. CIV. P. 91a.1. Of course, some affirmative defenses will not be conclusively established by the facts in a plaintiff's petition. Because Rule 91a does not allow consideration of evidence, such defenses are not a proper basis for a motion to dismiss.
In this case, the allegations in Bethel's petition show that Bethel is not entitled to relief. In its Rule 91a motion, Quilling simply argued that the facts—as Bethel pleaded them—entitled Quilling to attorney immunity and thus dismissal under Rule 91a. The trial court did not need to look outside Bethel's pleadings to determine whether attorney immunity applied to the alleged facts. See Youngkin, 546 S.W.3d at 681-83 (holding that a defendant was "entitled to dismissal" based on attorney immunity, despite the defendant's failure to support his defense with evidence, because "the necessary facts [were] not in dispute"); Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 736-41 (Tex. 2019) (considering a federal preemption affirmative defense in the context of a Rule 91a motion); cf. AC Interests, L.P. v. Tex. Comm'n on Envtl. Quality, 543 S.W.3d 703, 706 (Tex. 2018) (noting that a Rule 91a motion is not the proper vehicle for dismissal based on untimely service of process because the court has to look beyond the pleadings to determine whether process was, in fact, untimely). Taking Bethel's allegations as true, the trial court determined that Bethel was not entitled to the relief sought because attorney immunity barred Bethel's claims.[4] That is enough for dismissal under Rule 91a.

III

We next turn to the question of attorney immunity. In Cantey Hanger, LLP v. Byrd, we held that, "as a general rule, attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation." 467 S.W.3d 477, 481 (Tex. 2015) (quotations omitted). The immunity inquiry "focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct." Youngkin, 546 S.W.3d at 681 (emphasis in original). Under this analysis, "a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful." Id. In this case, however, Bethel urges us to recognize an exception where a third party alleges that an attorney engaged in criminal conduct during the course of litigation.[5]
We recently declined to recognize fraud as an exception to the attorney-immunity doctrine. In Cantey Hanger, 467 S.W.3d at 484-86, we concluded that a law firm was shielded by attorney immunity for preparing documents ancillary to a divorce decree, even though the firm allegedly acted fraudulently in drafting the documents. "An attorney is given latitude to pursue legal rights that he deems necessary and proper precisely to avoid the inevitable conflict that would arise if he were forced constantly to balance his own potential exposure against his client's best interest." Id. at 483 (citations and quotations omitted). We recognized that a general fraud exception to attorney immunity would "significantly undercut" this purpose. Id. Thus, we concluded that "[m]erely labeling an attorney's conduct `fraudulent' does not and should not remove it from the scope of client representation or render it `foreign to the duties of an attorney.'" Id. Instead, our focus remained on whether the attorney's complained-of conduct fell within "the scope of an attorney's legal representation of his client." Id. at 484.
The same reasoning applies here. Under Bethel's proposed exception, a plaintiff could avoid the attorney-immunity doctrine by merely alleging that an attorney's conduct was "criminal." This would "significantly undercut" the protections of attorney immunity by allowing non-client plaintiffs to sue opposing counsel so long as the plaintiffs alleged that the attorney's actions were criminal in nature. Id. at 483. We therefore conclude that criminal conduct is not categorically excepted from the protections of attorney civil immunity when the conduct alleged is connected with representing a client in litigation. Accord Troice v. Greenberg Traurig, L.L.P., 921 F.3d 501, 507 (5th Cir. 2019) (making an Erie guess that, under Texas law, attorney immunity "can apply even to criminal acts so long as the attorney was acting within the scope of representation").
We have long recognized, however, that attorney immunity is not boundless. See Poole v. Hous. & T.C. Ry. Co., 58 Tex. 134 (1882) (holding that attorney immunity did not protect actions taken "for the purpose and with the intention of consummating [] fraud upon [the] appellant"). An attorney is not immune from suit for participating in criminal or "independently fraudulent activities" that fall outside the scope of the attorney's representation of a client. Cantey Hanger, 467 S.W.3d at 483. For example, immunity does not apply when an attorney participates in a fraudulent business scheme with her client or knowingly facilitates a fraudulent transfer to help her clients avoid paying a judgment. Id. at 482. Immunity also does not apply when an attorney's actions do not involve "the provision of legal services"—for example, when an attorney assaults opposing counsel. Id. Certainly, there is a wide range of criminal conduct that is not within the "scope of client representation" and therefore "foreign to the duties of an attorney." Id. at 483. Thus, while we decline to recognize a per se criminal-conduct exception, an attorney's allegedly criminal conduct may fall outside the scope of attorney immunity. See Troice, 921 F.3d at 507 ("We conclude that criminal conduct does not automatically negate immunity, but in the usual case it will be outside the scope of representation."). We also note that nothing in our attorney-immunity jurisprudence affects an attorney's potential criminal liability if the conduct constitutes a criminal offense. And other remedies—such as sanctions, spoliation instructions, contempt, and disciplinary proceedings—may be available even if immunity shields an attorney's wrongful conduct. See Cantey Hanger, 467 S.W.3d at 482.
With these principles in mind, and taking Bethel's factual allegations as true, we conclude that Quilling's complained-of actions are the kind of actions that are "taken in connection with representing a client in litigation." Cantey Hanger, 467 S.W.3d at 481. Bethel's petition alleges that Quilling destroyed evidence in the underlying suit by: (1) disassembling the trailer's brakes; (2) failing to "establish any testing/inspection protocol at the time of the disassembly"; (3) failing to document the disassembly on video; (4) changing the position of the brakes' adjuster screws to facilitate the disassembly; (5) actuating some of the brakes to test them; and (6) spilling oil on the brakes during disassembly. Thus, at bottom, Bethel takes issue with the manner in which Quilling examined and tested evidence during discovery in civil litigation while representing Bethel's opposing party. These are paradigmatic functions of an attorney representing a client in litigation.
Bethel nevertheless contends that Quilling's conduct—criminal destruction of personal property—is not the type of conduct that is part of client representation. This certainly could be true in some circumstances. For instance, if an attorney destroyed a non-client's property that was unrelated to litigation, then that conduct likely would not involve "the provision of legal services," and the attorney would not be entitled to immunity. See Cantey Hanger, 467 S.W.3d at 482. Immunity also may not protect the intentional destruction of evidence—for instance, if Quilling had simply taken a sledgehammer to the brakes. Such actions do not involve the provision of legal services and therefore cannot fall within the scope of client representation. See id. Here, however, Quilling acted in conjunction with its experts to examine and test key evidence in the underlying suit. It may well be, as Bethel alleges, that Quilling's actions resulted in the destruction of evidence. But again, for civil-immunity purposes, our analysis looks to the type of conduct, not whether that conduct was wrongful. Youngkin, 546 S.W.3d at 681. Because Quilling's allegedly wrongful conduct involved the provision of legal services—specifically, examining and testing relevant evidence—that conduct is protected by attorney immunity.
Based on the facts alleged in Bethel's petition, the courts below correctly concluded that attorney immunity shields Quilling from civil suit by a third party, whom Quilling did not represent, for conduct connected to Quilling's representation of its client in litigation. Accordingly, the judgment of the court of appeals is affirmed.
[1] Bethel also sued the experts who conducted Quilling's examination but later nonsuited them to perfect this appeal. 581 S.W.3d 306, 309.
[2] The court of appeals also concluded that Bethel perhaps waived the Rule 91a argument, but the court addressed the merits of the argument anyway. 581 S.W.3d at 309. In this Court, the parties agree that Bethel did not waive the argument and urge the Court to reach the Rule 91a question on the merits.
[3] Bethel also argues that we should read Rule 91a narrowly because previous versions of the rule included a mandatory fee-shifting provision. However, the fee-shifting provision is no longer mandatory and does not affect our analysis. See TEX. R. CIV. P. 91a.7 (providing that a court "may award" costs and fees to the prevailing party).
[4] Bethel further argues that, even if an affirmative defense is established on the face of a plaintiff's pleading, dismissal is improper because there may be additional facts that negate the affirmative defense. However, Bethel has yet to articulate what kind of additional facts would negate attorney immunity in this case. If a plaintiff believes that there are additional facts that would negate an affirmative defense in a Rule 91a motion, the plaintiff may amend her pleadings accordingly. See TEX. R. CIV. P. 63 (allowing amendment in most circumstances); TEX. R. CIV. P. 91a.5(b) (contemplating amendment after a Rule 91a motion is filed).

[5] Bethel's briefing frames the issue differently, arguing that "[c]riminal conduct is not `an exception to the attorney-immunity doctrine'—it is simply not the type of civil wrong to which the doctrine applies." However the issue is framed, though, Bethel is asking us to categorically exempt allegedly criminal conduct from attorney immunity.

581 S.W.3d 306 (2018)

Cherlyn BETHEL, Individually and as the representative of the Estate of Ronald J. Bethel, Deceased, Appellant
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., and James H. Moody, III, Appellees

No. 05-17-00850-CV.
Court of Appeals of Texas, Dallas.
Opinion Filed May 30, 2018.  
  
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-17-03487.

Affirmed.

Morgan McPheeters, Frederick Leighton Durham, Jessica Foster, Thad D. Spalding, Kelly, Durham & Pittard, LLP, Andrew Galen Counts, E. Todd Tracy, Stewart Donavan Matthews, The Tracy Law Firm, Dallas, TX, for Cherlyn Bethel, Individually and as the Representative of the Estate of Ronald J. Bethel, Deceased.
Marcie L. Schout, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, TX, for Quilling, Selander, Lownds, Winslett & Moser, P.D.

Before Justices Francis, Fillmore, and Whitehill.

308 MEMORANDUM OPINION

Opinion by Justice Francis.

Cherlyn Bethel, individually and as the representative of the Estate of Ronald J. Bethel, sued opposing counsel for conduct involving an expert inspection of a trailer brake assembly that is the focus of a separate wrongful death action. Appellees Quilling, Selander, Lownds, Winslett & Moser, P.C., and James H. Moody, III, filed a motion to dismiss under Texas Rule of Civil Procedure 91a, asserting the affirmative defense of attorney immunity. The trial court granted the motion, dismissed Bethel's suit, and awarded attorney's fees to appellees. In two issues, Bethel challenges the ruling on appeal. We affirm.
Bethel's petition in this suit alleged the following: Bethel's husband, Ron, died following an accident that Bethel contends was caused by defective brakes in the trailer he was towing. Bethel sued the manufacturer of the trailer, and appellees represent the manufacturer in the wrongful death suit. According to Bethel, during the course of that litigation, appellees or their experts, with appellees' "knowledge and at their direction and supervision," disassembled the brakes and destroyed their condition. Bethel filed this lawsuit against appellees and their experts, alleging fraud, tortious interference with a contract, spoliation of evidence, "conspiracy to deny [Bethel] the pursuit of justice," trespass to chattel, conversion, negligence, and gross negligence. She sought damages for the destruction of the evidence.

Appellees filed a motion to dismiss the lawsuit, arguing there was no basis in law or fact because the claims were barred by attorney immunity. Bethel responded to the motion, arguing appellees' conduct constituted 309*309 criminal destruction of property, and Texas law is unresolved as to whether the attorney immunity doctrine applies to criminal conduct. In addition, Bethel amended her petition to add nine paragraphs addressing whether the attorney immunity doctrine applied.
The trial court granted the motion, dismissed Bethel's claims with prejudice, and awarded appellees $7,480 in attorney's fees as well as contingent appellate attorney's fees. After Bethel nonsuited her claims against the engineers and their firms, she appealed the trial court's order dismissing her claims against appellees.

Under rule 91a, a party may move to dismiss a cause of action on the grounds it has no basis in law or fact. TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id. In ruling on a 91a motion, the trial court may not consider evidence and must decide the motion "solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." TEX. R. CIV. P. 91a.6; Highland Capital Mgmt., LP v. Looper Reed & McGraw, P.C., No. 05-15-00055-CV, 2016 WL 164528, at *4 (Tex. App.-Dallas Jan. 14, 2016, pet. denied) (mem. op.). Whether a cause of action has any basis in law is a legal question we review de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). We base our review on the allegations in the live petition and any attachments, and we accept as true the factual allegations. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th] 2014, pet. denied).

In her first issue, Bethel asserts the plain language of rule 91a limits the scope of a court's review to the plaintiff's pleading. Because an affirmative defense is not part of a plaintiff's pleading, she argues, it cannot serve as a basis for dismissal. Consequently, she concludes, the trial court erred by granting appellees' motion on the basis of the affirmative defense of attorney immunity.

Initially, we note that Bethel did not present this particular issue to the trial court in her response to the motion to dismiss; rather, her response argued only that appellees' conduct constituted a crime for which attorney immunity should not apply. Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014). Affording courts this opportunity conserves judicial resources and promotes fairness by ensuring that a party does not neglect a complaint at trial and raise it for the first time on appeal. Id. Because Bethel did not present this issue to the trial court below, we conclude it is waived.

But even assuming this issue is properly before us,[1] Bethel acknowledges this Court, as well as others, have upheld rule 91a dismissals on the basis of affirmative defenses. See Highland Capital, 2016 WL 164528, at *4-6 (attorney immunity); Galan Family Tr. v. State, No. 03-15-00816-CV, 2017 WL 744250, at *3 (Tex. App.-Austin Feb. 24, 2017, pet. denied) (mem. op.) (statute of limitations); Guzder v. Haynes & Boone, LLP, No. 01-13-00985-CV, 2015 WL 3423731, at *7 (Tex. App.- 310*310 Houston [1st Dist.] May 28, 2015, no pet.) (mem. op.) (attorney immunity); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754-55 (Tex. App.-Beaumont 2014, pet. denied) (immunity from suit under the Communications Decency Act). Nevertheless, she argues these cases apply a "mistaken interpretation" of the rule and urges us to follow Bedford Internet Office Space, LLC v. Texas Insurance Group, Inc., 537 S.W.3d 717 (Tex. App.-Fort Worth 2017, pet. filed). There, the Fort Worth court concluded the plain language of the rule required trial courts to "wear blinders to any pleadings except the pleading of the cause of action'" and determined the court erred by dismissing claims on the basis of the statute of limitations, which would require the court to look beyond the plaintiff's pleadings and review the defendant's pleadings. 537 S.W.3d at 720.

We decline Bethel's invitation for two reasons.

First, as stated above, this Court previously applied rule 91a to the affirmative defense of attorney immunity. See Highland Capital, 2016 WL 164528, at *4-6. In Highland Capital, we considered the plaintiff's pleadings and concluded that, meritorious or not, the type of conduct alleged fell squarely within the scope of the law firm's representation of its client. 2016 WL 164528, at *4. We therefore concluded the trial court did not err in granting the law firm's rule 91a motion to dismiss the non-client's claims for theft, breach of the duty of confidentiality, conversion, tortious interference with contract, and civil conspiracy to commit theft, extortion, slander, and disparagement based on attorney immunity. Id.
Second, the rationale underpinning Bethel's argument and the Bedford Internet case is that rule 91a limits a court's consideration to the plaintiff's pleading of the cause of action. Even if we were to assume the correctness of this argument, Bethel's live pleading included nine paragraphs on why attorney immunity does not shield appellees from her suit. In particular, she alleged she owned the trailer and its component parts; appellees knew she owned them and that they were critical to her claim against the manufacturer; appellees did not obtain her consent to conduct destructive testing; she did not consent to such testing; and appellees "intentionally and knowingly directed the destructive disassembly, testing, and examination of the trailer brakes." She alleged appellees were "seasoned veterans" who were familiar with the standards governing forensic engineering and product liability litigation and were aware "with reasonable certainty" that the disassembly, testing, and examination of the trailer brakes would damage or destroy the brakes. Finally, Bethel alleged appellees' acts and omissions constituted criminal tampering with evidence, given they were aware she had filed a civil lawsuit against the trailer's manufacturer and they altered or destroyed the brakes with the intent to impair the "verity, legibility, or availability of the trailer brakes as evidence" in the suit. Because these allegations are contained in Bethel's live pleading, the trial court would not have needed to look beyond Bethel's petition to consider the issue of attorney immunity. We overrule the first issue.

In her second issue, Bethel argues appellees cannot establish attorney immunity solely from the facts alleged on the face of her petition. She contends Texas law does not shield an attorney from the consequence of "illegal conduct." More specifically, she acknowledges that appellees' investigation of the trailer brakes would ordinarily fall within an attorney's role in representing his client, but appellees' actions "went far beyond obtaining, retaining, reviewing, or analyzing evidence." She argues appellees conducted 311*311 destructive testing they knew was reasonably certain to cause this result and proceeded even though they knew they had no consent from her and destroyed property owned by her. She equates appellees' actions with conduct that is clearly "foreign to the duties of an attorney," such as assaulting opposing counsel in trial. We cannot agree.

We begin with the Supreme Court's decision in Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), which controls our analysis of attorney immunity. See Youngkin v. Hines, 546 S.W.3d 675, 681-82 (Tex. 2018). In Cantey Hanger, the Texas Supreme Court explained the attorney immunity defense is intended to ensure "loyal, faithful, and aggressive representation by attorney's employed as advocates." Cantey Hanger, 467 S.W.3d at 481 (quoting Mitchell v. Chapman, 10 S.W.3d 810, 812 (Tex. App.-Dallas 2000, pet. denied)). An attorney is immune from liability to non-clients for conduct within the scope of his representation of his clients. Youngkin, 546 S.W.3d at 681-82Cantey Hanger, 467 S.W.3d at 481. In other words, an attorney may be liable to non-clients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer. Youngkin, 546 S.W.3d at 681-82Cantey Hanger, 467 S.W.3d at 482.

In determining the immunity issue, the inquiry focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. Youngkin, 546 S.W.3d at 681-82Cantey Hanger, 467 S.W.3d at 482. Even conduct that is "wrongful in the context of the underlying suit" is not actionable if it is "part of the discharge of the lawyer's duties in representing his or her client." Cantey Hanger, 467 S.W.3d at 481. Thus, a plaintiff's characterization of a firm's conduct as fraudulent or otherwise wrong is immaterial to our evaluation of the immunity defense. Youngkin, 546 S.W.3d at 681-82; If an attorney proves his conduct is "part of the discharge of the duties to his client," immunity applies. Cantey Hanger, 467 S.W.3d at 484Highland Capital, 2016 WL 164528, at *3.

At the same time, attorneys "are not protected from liability to non-clients for their actions when they do not qualify as `the kind of conduct in which an attorney engages when discharging his duties to his client.'" Cantey Hanger, 467 S.W.3d at 482 (quoting Dixon Fin. Servs. v. Greenberg, Peden, Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *9 (Tex. App.-Houston [1st] Mar. 20, 2008, pet. denied)) (mem. op. on reh'g). Examples of attorney conduct that would not be protected include participating in a fraudulent business scheme with a client, knowingly assisting a client with a fraudulent transfer to avoid paying a judgment, theft of goods or services on a client's behalf, and assaulting opposing counsel during trial. Youngkin, 546 S.W.3d at 682-83Cantey Hanger, 467 S.W.3d at 482-83.
Here, Bethel's third amended petition alleged appellees permitted or conducted the destruction of key components of the trailer's brakes by permitting, directing, or taking the following action or inaction:
a. Disassembly of the brakes, which was destructive in nature and by itself. Essentially everything about the brakes has changed because of the inspection.
b. Failed to establish any testing/inspection protocol at the time of the disassembly.
c. Failed to video document the brake disassembly being done, despite the fact that video cameras were present (videos of the brake operation were done by [engineer] Kelly Adamson).
312*312 d. Manipulation of the adjuster screw for each brake to facilitate drum removal. The original condition and position of the adjuster screws now cannot be known.
Bethel alleged appellees (1) failed to notify her or her counsel of their intent to do a destructive examination and did not have an agreed-upon protocol; (2) intended to cause the disassembly and destruction of the brakes; and (3) altered or destroyed the trailer brakes with the intent to "impair the verity, legibility, or availability" of the trailer brakes as evidence in the pending action against the manufacturer. Bethel asserted that because she was not given notice of the inspection, she did not have an agent present.

Bethel's allegations focus on how the inspection was conducted and contend appellees' actions were criminal. She asserts that "intentionally destroying property belonging to another and willfully concealing from Texas courts evidence crucial to resolving claims" fall outside the immunity doctrine. But merely labeling an attorney's conduct wrongful does not and should not remove it from the scope of representation or render it `foreign to the duties of a lawyer. Id. As the court said in Cantey Hanger, other mechanisms are in place to discourage and remedy such conduct, such as sanctions, contempt, and attorney disciplinary proceedings. Id. at 482.

Focusing on the type of conduct alleged here — and not the nature of the conduct — we conclude these alleged acts do not constitute conduct "foreign to the duties of an attorney" in representing a client. The complained-of actions involve the investigation of the trailer brakes, and more specifically the scheduling of the inspection, the planning of and participation in the expert inspection, and the testing and examination of those brakes, in a wrongful death action. These are the types of action taken to facilitate the rendition of legal services to a client in such a case. This case simply does not rise to the level of those examples of misconduct cited in Cantey Hanger that fall outside the immunity doctrine. See Cantey Hanger, 467 S.W.3d at 482.

We find support for our conclusion in this Court's previous opinion in Highland Capital. There, the plaintiff also argued the law firm's actions were criminal. Highland sued opposing counsel alleging the client-employee stole documents containing confidential and privileged information and the law firm then tried to "extort Highland" through a "series of criminal acts" with respect to the documents. Highland Capital, 2016 WL 164528, at *1. Highland alleged the law firm reviewed, copied, and analyzed information it knew to be stolen and proprietary in furtherance of its scheme to extort, slander, and disparage Highland; threatened to disclose the information and disparage Highland if a monetary sum was not paid; refused to return or stop using the information after receiving written notice of the nature of the stolen materials; lied to Highland's counsel about the scope of the theft and stolen material in the firm's possession; and knowingly and actively facilitated the employee's wrongful disclosure of the information and then lied to Highland and the court regarding the extent to counsel's involvement. Id. Highland characterized the law firm's actions as "criminal, tortious, and malicious." Id. at *6.

This Court, however, looked at the actions taken by the law firm — acquiring documents from a client that were the subject of litigation against the client; reviewing, copying, retaining and analyzing the documents; making demands on the client's behalf; advising a client on a course of action; and threatening to disclose the documents if demands were not met — and 313*313 concluded they were the "kinds of actions" that were part of an attorney's duties in representing a client in "hard-fought litigation." Id.

As in Highland Capital, we conclude the type of conduct alleged by Bethel falls within the scope of appellees' representation of the manufacturer of the trailer. Accepting Bethel's factual allegations as true, appellees' conduct "involves acts or omissions undertaken as part of the discharge of the attorney's duties as counsel to an opposing party." See id. We therefore conclude the trial court did not err by granting appellees' rule 91a motion to dismiss Bethel's claims. We overrule the second issue.
 
We affirm the trial court's order.

[1] Courts may not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the court. Miller v. JSC Lake Highlands Ops., LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017). Thus, to the extent Bethel's assertion is an argument as opposed to an issue, we address it.  


RELATED LEGAL ETHICS ARTICLE: 

The Litigation Privilege as a Shelter for Miscreant Legal Counsel

50 Pages Posted: 18 Jun 2018 Last revised: 26 Jan 2019

Marc I. Steinberg

Southern Methodist University - Dedman School of Law

Logan J. Weissler

Southern Methodist University (SMU), Dedman School of Law, Alumnus
Date Written: 2018

Abstract

This article focuses on a pressing issue of national importance related to attorney conduct (or misconduct). The Litigation Privilege is a long-recognized immunity fashioned for attorneys to enable them to perform their functions as zealous advocates and litigators, without having to consider prospective non-client lawsuits aimed at their conduct in the course of representation. However, recent case law purports to expand the Litigation Privilege outside of its traditional contexts, posing a nationwide threat to attorney ethical standards. Broad readings of what sorts of legal assistance constitute “litigation” for the purposes of the application of the Litigation Privilege have recently been handed down by key courts, and the battle over whether fraudulent conduct on the part of attorneys may be covered under the Litigation Privilege continues to rage. This article analyzes these issues critically, asserting that these broad readings of the Litigation Privilege must be curtailed. Such attorney misconduct should not be shielded from aggrieved non-client redress. This article is a timely, nationally relevant contribution on the importance of “ethical lawyering” and how a fundamental legal doctrine should best effectuate its objectives.

Keywords: litigation privilege, attorney conduct, attorney-client privilege, attorneys – ethical standards, attorneys – liabilities, legal profession - reputation 

Steinberg, Marc I. and Weissler, Logan, The Litigation Privilege as a Shelter for Miscreant Legal Counsel (2018). Oregon Law Review, Vol. 97, No. 1, 2018; SMU Dedman School of Law Legal Studies Research Paper No. 390. Available at SSRN: https://ssrn.com/abstract=3194765 



Friday, February 7, 2020

Texas Supreme Court reverses Dallas Court of Appeals on briefing waiver issue in church dispute


Texas Supreme Court (SCOTX) holds once more that appeals should be decided on the merits. The intermediate Court of Appeals in Dallas had affirmed on a ground trial court could have dismissed the case (the order was not specific) because that ground was not explicitly briefed as a point of error on appeal: the ecclesiastical abstention doctrine.  



If only the courts of appeals would follow that prescription. As it is, they like to resort to waiver findings to ease their caseload and make short shrift of appeals, or to pick winners irrespective of merits. Needless to say, it upsets appellate attorneys because briefing-waiver findings in appellate decisions make them look bad, if not incompetent, in addition to the case being lost. 


IN THE SUPREME COURT OF TEXAS

444444444444
NO. 18-0513
444444444444

ST. JOHN MISSIONARY BAPTIST CHURCH, SYMPHUEL ANDERSON, BEVERLY
DAVIS, AND PATRICIA MAYS, PETITIONERS,
v.
MERLE FLAKES, ELOISE SQUARE, MARY JO EVANS, ANNE KATHERINE WHITE,
AND ELLA MAE ROLLINS, RESPONDENTS

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
444444444444444444444444444444444444444444444444

PER CURIAM


The issue before us is whether courts of appeals have the authority to order supplemental
briefing when (1) the trial court grants a motion to dismiss without specifying the ground for its
decision and (2) the appealing party fails to brief all possible grounds for the trial court’s decision.
The court of appeals held that it did not have authority to order supplemental briefing but was
instead required to affirm because of the appellant’s omission. 547 S.W.3d 311, 313 (Tex.
App.—Dallas 2018) (citing our decision in Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.
1970)). A dissent argued that the rules of appellate procedure authorized the court to seek additional
briefing under the circumstances presented, notwithstanding this Court’s decision in Malooly. Id.
at 318 (Schenck, J., dissenting). We need not reach the issue, however, because we conclude that
the court of appeals in this case had the authority to order supplemental briefing for a different
reason. We therefore reverse the judgment of the court of appeals and remand the case for further
proceedings.

This is a dispute over church assets. In 2014, St. John Missionary Baptist Church held a
specially called church conference. A majority of those present voted to terminate pastor Bertrain
Bailey’s contract. Both Bailey and the chairman of St. John’s trustee board, Merle Flakes, were
notified of the vote. Flakes continued to pay Bailey, however, and Bailey refused to step down.
Other St. John members who were loyal to Bailey entered into a loan on St. John’s behalf and began
selling off St. John’s assets. The St. John members who attempted to terminate Bailey (collectively,
St. John) sued Flakes and other St. John members who supported Bailey (collectively, Flakes),
seeking injunctive relief to prevent Flakes from selling St. John’s properties.
In the trial court, Flakes filed a motion to dismiss and a plea to the jurisdiction based on two
arguments: standing and the ecclesiastical-abstention doctrine. The trial court granted Flakes’s
motion but did not specify whether its decision rested on the standing issue, the ecclesiasticalabstention
issue, or both. St. John appealed, but its appellate brief only expressly addressed the
standing issue.

The court of appeals, sitting en banc, affirmed in a divided decision. 547 S.W.3d 311. The
court held that it was bound to affirm the trial court’s judgment because St. John failed to challenge
all possible bases for the decision. Id. at 318. The court reasoned that the Texas Rules of Appellate
Procedure allowed “some discretion in remedying substantive defects in parties’ briefs.” Id. at 313.
However, the court held that the Rules did not allow the 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
2
originally asserted.” Id. Thus, because St. John had not addressed the ecclesiastical-abstention issue
in its briefing, the court of appeals concluded that it was bound to affirm the trial court on that
ground. Id. at 318.

In this Court, St. John argues that the court of appeals erred in holding that it lacked the
authority to order supplemental briefing on the ecclesiastical-abstention issue. St. John contends
that Texas Rule of Appellate Procedure 38.9 authorizes courts of appeals to order additional briefing
when an appellant fails to brief all possible grounds for the trial court’s decision. Flakes responds
that although Rule 38.9 gives courts of appeals discretion to order additional briefing, the court
properly exercised that discretion here by declining to order supplemental briefing on a new issue
concerning an independent, unchallenged ground for judgment. We do not reach that question,
however, because St. John effectively raised the ecclesiastical-abstention issue in its briefing to the
court of appeals. We thus conclude that the court of appeals had the authority to order additional
briefing under Rule 38.9.
“We construe the Rules of Appellate Procedure liberally, so that decisions turn on substance
rather than procedural technicality.” Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004). Indeed, the
formal title of Rule 38.9 is “Briefing Rules to Be Construed Liberally.” In substance, Rule 38.9
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 the following.
* * *
(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
3
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.
Further, we “generally hesitate to turn away claims based on waiver or failure to preserve
the issue.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex.
2017). To that end, Rule 38.1 provides that an issue statement “will be treated as covering every
subsidiary question that is fairly included.” TEX. R. APP. P. 38.1(f); see also First United, 514
S.W.3d at 221. This is because “appellate courts should reach the merits of an appeal whenever
reasonably possible.” Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (quoting
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)); see also Ryland Enter., Inc. v. Weatherspoon,
355 S.W.3d 664, 665 (Tex. 2011). We have often held that a party sufficiently preserves an issue
for review by arguing the issue’s substance, even if the party does not call the issue by name. See,
e.g., First United, 514 S.W.3d at 222 (holding that a church preserved its claim for equitable
remedies, even though the church only expressly briefed actual-damages issues); Anderson v.
Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (“An appellate court should consider the parties’
arguments supporting each point of error and not merely the wording of the points.”); Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (holding that the plaintiff’s cause of action for money
damages was sufficiently related to the plaintiff’s later request for injunctive relief).
Nevertheless, in this case the court of appeals concluded that our decision in Malooly Bros.,
Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970), prevented it from requesting additional briefing on the
issue of whether the ecclesiastical-abstention doctrine deprived the trial court of jurisdiction. In
4
Malooly, the defendants argued that they were entitled to summary judgment because (1) the
applicable statute of limitations barred the plaintiff’s claims and (2) the plaintiff had executed a
release of the claims. Id. at 121. The trial court granted the defendants’ motion but did not specify
its reason for doing so. Id. On appeal, the plaintiff challenged the validity of the release in question
but did not address the defendants’ statute-of-limitations argument. Id. This Court affirmed. Id.
at 120. We reasoned that the trial court’s 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.” Id. at 121.
However, Malooly does not control the outcome here. In Malooly, the unaddressed ground
(the statute-of-limitations issue) provided a standalone basis on which the trial court could have
dismissed the plaintiff’s case. Here, however, the ecclesiastical-abstention doctrine was not an
independent basis for affirming the trial court’s judgment apart from the standing issue. Rather,
based on the record before us, it appears that the standing and ecclesiastical-abstention issues are
“so inextricably entwined that one cannot be mentioned without automatically directing attention
to the other.” Consol. Eng’g Co. v. S. Steel Co., 699 S.W.2d 188, 192 (Tex. 1985).
In the trial court, Flakes’s motion presented standing and ecclesiastical abstention as
independent grounds for dismissal. On standing, Flakes argued that the individual St. John plaintiffs
could not bring suit on behalf of the church because the plaintiffs were no longer church members.
On the ecclesiastical-abstention doctrine, Flakes also argued more generally that the case would
require the court to impermissibly wade into questions of church governance. However, the
substance of Flakes’s arguments on the two issues significantly overlapped.
5
During a hearing on Flakes’s motion, the overlap between the standing and ecclesiasticalabstention
issues became even more apparent. First, the parties disputed whether the church’s
bylaws governed church membership and whether those bylaws were ecclesiastical or secular in
nature. Flakes expressly argued that questions surrounding the plaintiffs’ memberships, and
therefore the plaintiffs’ standing, were ecclesiastical: “When you talk about who is a member, not
a member, what’s secular about that? That’s religious. There [are] no neutral principles [on which]
this Court can [] decide.”
Second, Bailey purported to remove the individual plaintiffs’ church memberships months
after the congregation allegedly removed Bailey as St. John’s pastor.* At the hearing, Flakes
repeatedly argued that the court lacked jurisdiction to decide whether Bailey was St. John’s
legitimate pastor and leader: “When Plaintiff argued that these issues are secular in nature, what’s
secular about who becomes the pastor, and that the Board of Trustees breached their fiduciary duty
because it didn’t hold a vote of who could be a pastor now [?] That’s not secular, that’s religious.”
Again, Flakes argued that the court could not entertain questions about the plaintiffs’ memberships
because they rested on Bailey’s status as pastor: “Church discipline, is that not what this case is
about? I’m no longer a member, so-called the pastor sent me a letter. That’s church discipline.”
On this record, then, the standing issue “fairly included” the ecclesiastical-abstention issue,
and St. John’s purported omission did not require affirmance under Malooly. TEX. R. APP. P.
38.1(f). St. John’s briefing in the court of appeals illustrates this point: while St. John never

* It is unclear whether the parties believe that the plaintiffs’ memberships were terminated by Bailey (in which
case some of the plaintiffs’ memberships were terminated in November 2014) or by the bylaws (in which case the
memberships were terminated in April 2015, when the plaintiffs filed suit). Regardless, the trial court had to consider ecclesiastical-abstention issues before deciding whether the individual plaintiffs had standing.
6
expressly used the terms “ecclesiastical” or “abstention”, St. John acknowledged that courts do not
typically review church actions but argued that judicial oversight of church proceedings was
necessary in this case. See First United, 514 S.W.3d at 222 (“Parker is correct that the church failed
to use the words equitable, forfeiture, or disgorgement in its briefing to the court of appeals. Yet,
our review of the briefs leads us to conclude that the equitable remedies were subsidiary questions
fairly included in the briefing there.”). St. John’s briefing was “sufficient to put the court of appeals
on notice” of the ecclesiastical-abstention issues in the case and “invite[d] the court of appeals to
correct any error of law” as to that issue. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578
S.W.3d 469, 481 (Tex. 2019).

Thus, to the extent the court of appeals held that St. John failed to assign error by omitting
the ecclesiastical-abstention issue, that holding was in error, and the court of appeals had authority
to request additional briefing under Rule 38.9.

Finally, we note that courts of appeals retain their authority to deem an unbriefed point
waived in lieu of requesting additional briefing. See Fredonia State Bank v. Gen. Am. Life Ins. Co.,
881 S.W.2d 279, 284 (Tex. 1994) (stating that the decision to permit amendment or deem a point
waived “depends on the facts of the case”); see also Standard Fruit & Vegetable Co. v. Johnson, 985
S.W.2d 62, 65 (Tex. 1998) (“Generally, a party must seek leave of court to file an amended or
supplemental brief, and the appellate court has some discretion in deciding whether to allow the
filing.”). The issue here, however, is not whether the court of appeals was required to request
additional briefing, but rather whether the court had the authority to do so. We hold that the court
of appeals had authority under Rule 38.9 to request additional briefing in this case because the
7
“unbriefed issue” was “fairly included” in or “inextricably entwined” with a briefed issue. TEX. R.
APP. P. 38.1(f); Consol. Eng’g Co., 699 S.W.2d at 192.

Without hearing oral argument, under Texas Rule of Appellate Procedure 59.1, we reverse
the judgment of the court of appeals and remand the case to that court for further proceedings
consistent with this opinion.

OPINION DELIVERED: February 7, 2020

St. John’s Missionary v. Flakes, No. 18-0513 (Tex. February 7, 2020) (per curiam) (holding that court of appeals has discretion to order additional briefing on issue not expressly urged as grounds for reversal in appellant's brief, but intertwined with briefed issue.)

SCOTX Case Number: 18-0513
Full Case Style in Texas Supreme Court: ST. JOHN MISSIONARY BAPTIST CHURCH, SYMPHUEL ANDERSON, BEVERLY DAVIS, AND PATRICIA MAYS vs MERLE FLAKES, ELOISE SQUARE, MARY JO EVANS, ANNE KATHERINE WHITE, AND ELLA MAE ROLLINS.
URL of docket in the Supreme Court: http://search.txcourts.gov/Case.aspx?cn=18-0513

BELOW: COURT OF APPEALS OPINION (REVERSED)

547 S.W.3d 311 (2018)

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.
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-04696.
Affirmed.
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.

312

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 313*313 all possible grounds that could support the trial court's judgment. For nearly fifty years, the proper action has been to affirm a judgment when the appealing party has failed to show reversible error. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). This is not affirmance of a judgment based on "briefing waiver." It is affirmance based on the appellant's failure to show that reversal of the judgment is required which is the fundamental purpose of every appeal in our adversarial system. See TEX. R. APP. P. 44.1(a).
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 314*314 grounds 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 315*315 reviewing RSL's briefs in the court of appeals, we agree with the appeals court and will affirm."); Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977) (concluding appellant's failure to challenge separate and independent ground of recovery for negligence required affirmance of judgment); Midway Nat'l Bank v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460, 461 (Tex. 1970) (per curiam) (affirming judgment when appellant failed to attack independent legal conclusion that "fully supported" judgment).[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.
The Texas Supreme Court has not overruled Malooly or provided authority that would allow us to sua sponte identify a 316*316 potentially reversible issue not briefed by appellants and then offer appellants the opportunity to further brief that issue. Contrary to the dissenting opinions' view of rule 38.9(b), the text of this rule does not authorize issue identification by an appellate court and supplemental briefing. See TEX. R. APP. P. 38.9(b). Moreover, directing rebriefing on an issue not raised in appellants' opening brief after submission of a case to a panel is even more disruptive to the appellate process than appellants raising an issue for the first time in a reply brief — which is not permitted. See TEX. R. APP. P. 38.3; City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam) ("[T]he court of appeals should not have addressed the constitutional challenge. Schautteet raised the issue of violation of the open courts provision for the first time in a reply brief filed on appeal."); Powell v. Knipp, 479 S.W.3d 394, 408 (Tex. App.-Dallas 2015, pet. denied) ("Issues raised for the first time in a reply brief are ordinarily waived and may not be considered by an appellate 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 perfor 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.
317*317 The 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).
318*318 Because 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.
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 319*319 revoked 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.
320*320 Rule 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*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 322*322 in 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 practice[9] 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 323*323 may 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 324*324 alongside 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 325*325 to 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 326*326 include 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 177see also Kamen, 500 U.S. at 100-01, 111 S.Ct. 1711Greene 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 327*327 should 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." Pavekic & 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 328*328 supreme 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 329*329 and 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*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.
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 331*331 in rule 38.1(i) that they present an adequate argument. Because the parties do not have to fully comply with the requirement that they present and argue all the issues, and because the point of briefing is to acquaint us with the issues of the case, it sure seems like the text of rule 38.9 would permit the inference that we can ask the parties to brief us on issues they initially failed to brief. I think that is the natural reading of the rules, particularly in 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 332*332 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.'" 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.
[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.
[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 653Nelson 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.