HOW FAR BACKWARD SHOULD AN APPEALS COURT BEND TO CONSTRUE GARBLED BRIEFING?

Coleman v. Prospere
Dallas Court of Appeals, No. 05-13-0068-CV (September 22, 2014)
Justices FitzGerald, Fillmore, and Evans (Opinion)
A divided panel of the Dallas Court of Appeals reversed a summary judgment that dismissed a client’s lawsuit against his criminal lawyer. The Court of Appeals held that “[a] no-evidence motion for summary judgment must challenge specifically identified elements of a cause of action or defense on which the non-movant bears the burden of proof at trial,” and that the appellee’s motion had failed to do so. But it was the gross lack of clarity in the appellant’s briefing, and the lengths to which the Court went to decipher it, that became the focal point of disagreement between the majority and dissent.

Coleman alleged that Prospere agreed to represent him in a criminal matter for a flat fee of $25,000. The parties agreed, Coleman said, that Prospere would pursue a specific defense. After receiving the fee, Prospere urged Coleman to accept a plea agreement instead of pursuing the agreed-upon defense. Coleman refused and demanded reimbursement of the $25,000 fee. When Prospere declined, Coleman filed suit, asserting claims for breach of contract, deceptive trade practices, and intentional infliction of emotional distress. Prospere denied the substance of the claims and also moved for a traditional and no-evidence summary judgment. The trial court granted Prospere’s motion for summary judgment, without specifying the grounds or theory on which it based that decision.

The Court of Appeals reversed. Drawing upon its prior en banc opinion in Jose Fuentes Co. v. Alfaro, the Court said, “A no-evidence motion that only generally challenges the sufficiency of the non-movant’s case and fails to state the specific elements that the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law.” Because it found Prospere’s motion had failed to “challenge or even mention a single element” of the three causes of action that lacked evidence, the Court found the no-evidence grounds in the summary judgment motion legally insufficient. And the Court went on to hold summary judgment to have been improper based on traditional grounds, as well.


Getting to that point, however, required the appeals court to afford appellant’s brief substantial latitude. The majority observed that, “Rambling in argument and jumbling citations, case summaries, and discussion in a chaotic way,” appellant’s brief was “far from a model of clarity,” such that it was “quite difficult to ascertain the complaints presented.” Nevertheless, because it felt duty bound to “construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost,” the majority labored to discern the complaints the appellant apparently was trying to assert, and ultimately ruled in his favor.


Justice FitzGerald dissented, saying the majority’s “description [of appellant’s brief] does not do full justice to the incoherence of appellant’s argument,” and characterizing portions of the brief as “barely comprehensible.” While finding that appellee’s no-evidence motion for summary judgment did adequately specify an element on which proof was lacking, Justice FitzGerald would have affirmed even before getting to that issue. “[Coleman’s] brief is so deficient under the rules of appellate procedure,” he said, “that we should affirm the judgment without discussion of the merits.” Therefore, the dissent concluded, the majority’s indulgent approach to this appellant’s briefing sets “bad precedent,” and the take-nothing judgment should be affirmed irrespective of the merits.

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