Texas Supreme Court holds 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.

St. John Missionary Baptist  Church, et al, v Merle Flakes, et al, 18-0228, (Tex. Feb. 7, 2020).

The Texas Supreme Court held in this case, which will be of interest to litigators and appellate practitioners, that the courts of appeals have authority to order additional briefing on issues that were not raised in the principal briefs.

This is a dispute over church assets. St. John Missionary Baptist Church held a conference and terminated pastor Bertrain Bailey’s contract. Both Bailey and the chairman of St. John’s trustee board, Merle Flakes, were notified of the vote, but Bailey refused to step down and Flakes continued to pay him. The Church began selling off assets to keep payments. St. John members sued Flake and Bailey. Flakes filed a plea to the jurisdiction based on lack of 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 ecclesiastical abstention 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 holding the court of appeals was bound to affirm the trial court’s judgment because St. John failed to challenge all possible bases for the decision.

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. The Texas Supreme Court held, generally, Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” However, 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. Here, 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.” At the trial court level, Flake’s motion listed both. During a hearing on Flakes’s motion, the overlap between the standing and ecclesiastical abstention issues became even more apparent. On this record, then, the standing issue “fairly included” the ecclesiastical-abstention issue, and St. John’s purported omission did not require the court of appeals to affirm based on a lack of inclusive identification. 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. The opinion is reversed and remanded.

If you would like to read this opinion click here. Per Curiam opinion. Docket page found here.