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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