St. John Missionary Baptist Church v. Flakes
Dallas Court of Appeals, No. 05-16-00671-CV (March 29, 2018)
En Banc (Evans majority opinion available here; Schenck dissent available here; Boatright dissent available here)
A five-person minority disagreed in two lengthy dissents. The minority would treat the failure to address both bases for dismissal as a “briefing deficiency.” TRAP 38.9 provides that an appellant need only comply with the rules substantially, and if an appellant does not substantially comply with the rules, the Court has the discretion to do what is necessary to effect a satisfactory submission. The minority would hold that a failure to address an argument that is deemed to be included in the trial court’s disposition of the case 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, including a request for additional briefing.