Henry S. Miller Management Corp. v. Houston State Associates

MOTION FOR REHEARING

Appellant complains that we overruled 13 of its 23 points of error for failure to comply with Tex.R.App.P. 50(d), 52(a), and 74(d), (f). Appellant particularly complains of our overruling point six because it did not state where in the appellate record the trial court overruled its objections to the damages issue. Appellant concedes that it did not point out in point of error six that it obtained an adverse ruling on the damages issue.

Point of error six appeared at pages 24 to 26 of appellant’s appellate brief. Appellant now points out, for the first time on rehearing, that it cited the trial court’s adverse ruling one time elsewhere in its 47-page brief, specifically, at page 17 within its grouped discussion of points one through three. Those points, which we overruled on the merits, attacked appellee’s pleadings. They did not attack, or even mention, the measure of damages. They did not mention or cite to question 17, the damages question. Points one through three were not grouped with point six for argument, and neither argument referred to the other.

Appellant contends that we are “playing a fictitious game” because

*134not only did the court of appeals have to fall over the trial court’s adverse ruling to get to point of error number six, the court of appeals need only have looked to page one of the table of contents of the transcript to find the court’s order overruling the written objections to the charge.

We disagree that we “need only have looked to page one of the table of contents of the transcript.” We do not represent the appellant; therefore, it is inappropriate that we “look” for error. This appellate record contains five pages of table of contents spread over three volumes of transcript. The transcripts total 651 pages, the statement of facts totals 823 pages, and there are approximately 600 pages of exhibits.

Appellant contends Inpetco Inc. v. Texas Am. Bank/Houston, 729 S.W.2d 300 (Tex.1987), prohibits us from holding that a point of error is waived, due to briefing defects, unless we first allow the party to correct them. We take this opportunity to discuss Inpetco because of the number of defective briefs we are receiving in complex civil cases, like this one, involving large appellate records.

In Inpetco, the trial court granted a summary judgment, and Inpetco brought only one point of error to the court of appeals. See Inpetco, Inc. v. Texas Am. Bank, 722 S.W.2d 721 (Tex.App.-Houston [14th Dist.] 1986), writ ref'd n.r.e., 729 S.W.2d 300 (Tex.1987). The court of appeals held that Inpetco’s brief did not comply with the requirements of what is now Tex.R.App.P. 74, and therefore, the sole point of error was waived and the judgment was affirmed.

The supreme court disapproved the holding that the point of error was waived by failure to comply with the briefing requirements of Tex.R.App.P. 74. It held that rule 74 should be read together with Tex.R. App.P. 83, which provides:

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities ....

(Emphasis added.) The supreme court concluded that the court of appeals erred in affirming the judgment because of Inpet-co’s briefing defects without first allowing it to rebrief. We note that rule 74 speaks of affirming judgments, which requires that all points of error be overruled, as happened in Inpetco. It does not speak of overruling some points of error due to procedural defects, while reaching others on the merits and affirming, reversing, or dismissing, as those other points require.

This case differs from Inpetco. There, the summary judgment was affirmed due to briefing defects because every point of error (albeit a single one) was deemed waived. Here, we have reviewed 10 points of error on the merits. Thus, we have not affirmed the judgment because of briefing defects, but because appellant has not shown reversible error in any point of error, including the 10 points of error that we reviewed on the merits. Overruling some, but not all, points of error because of procedural defects is not the same as affirming a judgment due to procedural defects. The difference is that the appellant may still get complete or partial relief on other points not waived by procedural defects. For a prominent example, see Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 810, 815, 866 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (holding several points of error waived for not complying with rule 74, while sustaining a properly presented point of error worth $2 billion).

We hold that rule 83 does not require a court to grant time to amend defective points of error, unless, as in Inpetco, all the points are defective and overruling them on that basis would constitute an affirmance for defects in appellate procedure. We think this interpretation is consistent with the following authorities: Davis v. City of San Antonio, 752 S.W.2d 518, 521-22 (Tex.1988); Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983); King v. Graham Holding Co., 762 S.W.2d 296, 298-99 (Tex.App.—Houston [14th Dist.] 1988, no writ); Arrechea v. Arrechea, 609 *135S.W.2d 852, 855 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.) (cited with approval in Trenholm). We agree with the court’s statement in King:

It would be intolerable for an appellate court to be forced to spend an inordinate amount of time preparing for submission of a case, to hear oral argument without the benefit of proper study, and then be required to send the cause back to the beginning of the process for rebriefing— and perhaps reargument. Although the wheels of justice turn slowly, they need not roll over the same ground twice.
At bottom, the rules recognize a degree of discretion in reviewing courts. We construe points of error liberally ... and we will entertain a motion to amend a brief ... But an appellate court must have the discretion to deny such a motion.

762 S.W.2d at 299.

The motion for rehearing is denied.