The supreme court again reversed a lower-court finding of briefing waiver in Lion Copolymer Holdings v. Lion Polymers: “A party attacking the factual sufficiency of a finding on appeal must ‘demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.’ This is what Company did, even though it intertwined its analysis with a legal sufficiency complaint. Company identified the damages award, $361,295; evidence that would support that award; and countervailing evidence to argue that ‘the evidence is so weak that it is factually insufficient to support a finding that the Company owed [LP] any money.’ We therefore conclude that the court of appeals erred in holding that Company waived its factual sufficiency complaint by inadequately briefing the issue.” No. 19-0343 (Dec. 18, 2020) (per curiam).

(This is a cross-post from 600Commerce.) Last Friday’s opinion by the Texas Supreme Court in St. John Missionary Baptist Church v. Flakes reversed St. John’s Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.–Dallas 2018) (en banc). The law of appellate briefing waiver now has (at least) these features:

1. Waiver occurs when (a) the defendants move for summary judgment on two grounds that each are an “independent basis” for judgment (limitations and release), (b) the trial court grants the motion without specifying a reason, and (c) “[o]n appeal, the plaintiff challenged the validity of the release in question but did not address the defendants’ statute-of-limitations argument.” In this situation, the trial court’s judgment “must stand, since it may have been based on a ground not specifically challenged by the plaintiff and since there was no general assignment that the trial court erred in granting summary judgment.” Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970).
2. Waiver does not occur when – and a court may thus request supplemental briefing if that would be helpful – when the defendants seek dismissal based on two doctrines (standing and ecclesiastical abstention), the substance of which “significantly overlaps.” The supreme court found such an “overlap” in Flakes when consideration of both doctrines required review of the applicable church bylaws and church membership situation. Two other examples cited in Flakes involve arguments about equitable relief related to points about money damages (First United Pentecostal Church v. Parker, 514 S.W.3d 214 (Tex. 2017)), and an issue about the applicability of a specific case in a broader dispute about the right to terminate a lease (Rohrmoos Venture v. UTSW DVA Healthcare, 578 S.W.3d 469 (Tex. 2019)).
3. Supplemental briefing is discretionary under Flakes; cf. Horton v. Stovall, No.18-0925 (Tex. Dec. 20, 2019) (finding that an appellant should have been given the opportunity to cure the particular record-citation issues identified in that case).

In Horton v. Stovall, the Court reversed and remanded in a summary-judgment case, finding that the court of appeals should have alerted the appellant and given her an opportunity to cure when these record-citation errors occurred:

1. “Horton correctly identified the documents she was relying on to support her appellate issues and those documents were actually offered in opposition to Stovall’s summary judgment motions, but the appendix instead cited to those same documents where they were attached to Horton’s motion for continuance and motion for new trial. Right documents, wrong record citations.”

2. “Horton also admittedly failed to provide pinpoint citations to three emails Stovall had relied on to support her attorney’s fee claim. Horton’s brief argued that the emails were insufficient to meet the presentment requirement, but she cited to the first page of the motion to which they were attached rather than to the specific emails.”