Robbie Lesa Hames Horton v. Kimberly A. Stovall

DISSENT; and Opinion Filed July 10, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00744-CV
ROBBIE LESA HAMES HORTON, Appellant
V.
KIMBERLY A. STOVALL, Appellee
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-14190
DISSENTING OPINION
Opinion by Justice Boatright
The majority affirms summary judgment on Horton’s first five issues because she cited
appendices and referred to evidence that, the majority contends, was not properly before the court.
However, the majority cites no rule or judicial opinion that supports its decision, and I have found
none. Therefore, I respectfully dissent.
Citing Appendices
Texas Rule of Appellate Procedure 38.1(i) requires that briefs contain appropriate citations
to the record, but Horton cited appendices rather than the record. The majority cites two opinions
of our Court for the notion that this alone would allow us to affirm summary judgment, Jackson v.
Citibank (S. D.), N.A., 345 S.W.3d 214 (Tex. App.—Dallas 2011, no pet.), and Willms v. Wilson,
No. 05-08-01718-CV, 2009 WL 4283109, at *1 (Tex. App.—Dallas Dec. 2, 2009, no pet.) (mem.
op.).
In Jackson and Willms, we sent letters to the appellants informing them that their briefs did
not cite the record. This gave them an opportunity to file amended briefs. They did so, but the
amended briefs were defective because they cited only appendices. We affirmed the trial court’s
judgments in both cases, concluding that the appellants’ briefs gave us nothing to review. Our
reasoning depended on the fact that the appellants failed to cure formal briefing defects that we
had invited them to cure.
Jackson and Willms are consistent with Texas Rule of Appellate Procedure 38.9(a), which
provides that, when a party files a brief with flagrant formal defects, we may proceed with the case
as though the party did not file a brief at all, but only if we require the party to file an amended
brief, and the amended brief is defective too. Jackson and Willms are also consistent with Texas
Rule of Appellate Procedure 44.3, which prohibits us from affirming summary judgment based on
formal defects without allowing a reasonable time to correct them.
In this case, however, we never told Horton that her brief was defective, we did not give
her any opportunity to cure the defects, she never filed an amended brief, and we never determined
that an amended brief was defective. Therefore, I think we have violated rules 38.9(a) and 44.3.
Record Evidence that Was Properly Before the Trial Court
The majority also contends that the evidence appellant cites in her appendices was not
properly before the trial court during each summary judgment proceeding. I think it was.
Consider, for example, the August 21, 2012 letter declaring Stovall in breach of the
settlement agreement. This letter is critical to Horton’s theory of the case—that Stovall breached
the agreement first, excusing Horton’s performance. According to the majority, the letter was not
before the trial court in the summary judgment proceedings and cannot raise a fact issue or
otherwise challenge Stovall’s summary judgments in this appeal. However, a simple search of our
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electronic record for the word “cancellation,” which is in the subject line of the letter, locates the
document in all of the following places in the Clerk’s Record:
CR/SCR Page Number Location of August 21, 2012 Letter
CR 597 Horton’s Response to Plaintiff’s [First] Amended Motion for Partial
Summary Judgment
SCR 1088 Horton’s Motion for Reconsideration of Plaintiff’s [First] Amended
Motion for Partial Summary Judgment
SCR 322 Horton’s First Amended Motion for Reconsideration of Plaintiff’s
[First] Amended Motion for Partial Summary Judgment
CR 1139 Horton’s Response to Plaintiff’s [Second] Motion for Summary
Judgment on Defendant’s Counterclaims
SCR 500 Horton’s Response to Plaintiff’s [Third] Amended Motion for
Summary Judgment on Attorney’s Fees
SCR 197 Horton’s Response to Stovall’s Motion to Sever and Abate
Thus, the August 21 letter was attached to Horton’s responses to each summary judgment
motion at issue in this appeal. Like the August 21 letter, the other pieces of evidence the majority
says were not in the record and were not properly before the trial court actually were, and they can
be found through an electronic word search.
Searching an electronic record is neither onerous nor unusual; we do it in drafting most of
our opinions. And we routinely look for things in the record that are not cited in briefs. This does
not excuse flagrant violations of briefing rules, but it does suggest that, when we see citations to
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an appendix rather than the record, we do not have to end our inquiry and declare that there is
nothing for us to review.
Nor should we. Rule 38.9 requires only substantial compliance with briefing rules. And the
Texas Supreme Court has told us to resolve cases on the merits whenever we can. Perry v. Cohen,
272 S.W.3d 585, 587 (Tex. 2008). I think we can reach the merits in this case with the briefing we
have.
But if formal defects in Horton’s brief prevented us from reaching the merits, we would
owe her a chance to file an amended brief under rules 38.9(a) and 44.3 before affirming summary
judgment based on the defects.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE
160744DF.P05
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