SUPPLEMENTAL OPINION ON REHEARING
After this court issued its majority opinion and judgment deciding the appeal,
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appellant MedStar Funding, LC filed a motion for rehearing. In the motion, MedStar contended the majoritys opinion was wrong for construing MedStars appellate issue as one challenging only the summary-judgment dismissal of its breach-of-contract claim based on appellees’ attorney-immunity affirmative defense. We held that MedStar had not timely pleaded a breach-of-contract claim and thus we had no basis to reverse the summary judgment based on MedStars appellate argument that attorney immunity does not apply to a breach-of-contract claim. See id. at 814-16.
According to MedStars motion for rehearing, however, the appellate issues it raised and briefed were broader: MedStar says it “challenged the dismissal of every claim at issue in this litigation” and “challenged the legal sufficiency of the evidence supporting [the Law Firms] attorney immunity defense.” We deny MedStars motion for rehearing and issue this supplemental opinion to clarify our decision.
On November 30, 2020, MedStar filed its appellants brief. In that brief, MedStar asserted a single issue: “Whether the district court erred in holding that ‘attorney immunity’ absolves attorney-signatories to ‘letters of protection’ from fulfilling their promise to ensure payment of medical bills for treatment received by the attorneys’ personal injury clients?” MedStar characterized the nature of the case as one of “breach of contract.” MedStars prayer similarly posited that “[t]his is a simple case about honoring a promise made to facilitate the provision of medical treatment to [the Law Firms] client in furtherance of her personal injury lawsuit. Texas law demands that [the Law Firm] be held to its agreement; the district courts order permitting [the Law Firm] to shirk [its] obligations should be reversed.” Thus, in its original appellants brief, MedStar presented its cause of action as one for breach of contract and presented its appellate argument for reversal as grounded on the premise that attorney immunity does not apply to a breach-of-contract claim. As we have explained, exhaustively, MedStar did not timely assert a breach-of-contract claim against the Law Firm defendants and did not seek or obtain leave of court to assert such a claim in a post-summary-judgment-hearing amended petition. On appeal, MedStar did not mention its pleaded claims in its brief, other than in the statement of facts as a recitation of the claims asserted.
On October 14, 2021, we submitted the case on oral argument. At argument, MedStars counsel (who had not signed the opening brief) argued that MedStars stance was not just that the Law Firms attorney-immunity defense did not apply to a breach-of-contract claim but also, more generally, that the Law Firm failed to conclusively prove its defense at summary judgment.
On October 18, 2021, MedStar moved to file an amended brief. The motion was titled “Appellants Motion for Leave to Amend Brief to Address Impact of Supreme Court Authority Issued After Traditional Appellate Briefing Was Complete.” MedStars stated reason for amendment was “to address the impact of” two supreme court cases, Haynes & Boone, LLP v. NFTD, LLC f/k/a Bernardo Group, 631 S.W.3d 65 (Tex. 2021), and Landrys, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40 (Tex. 2021), which dealt with attorney immunity. MedStar represented that it made two changes to case citations and added a new Section III.D, which “discusses and analyzes the supreme courts [opinions].”
On October 28, 2021, we granted MedStars motion to amend and MedStars amended brief was deemed filed on the same date.
In MedStars amended brief, the nature of the case, the issue presented, the first three sections of the argument, and the prayer remained identical to the opening brief, all of which focused on the inapplicability of an attorney-immunity defense to a breach-of-contract claim. But in the new Section III.D, MedStar summarized Bernardo Group and Landrys and then asserted, “The record confirms that Willumsen failed to conclusively establish either element in its traditional motion for summary judgment.” The quoted sentence was not included in MedStars original appellants brief.
MedStar contends in its motion for rehearing that it fairly presented the question whether the Law Firm met its summary-judgment burden on MedStars pleaded claims in its issue presented section of the amended brief and in the section discussing the supreme court authority (based on the above-quoted sentence). We are unpersuaded.
The issue presented in the amended brief, quoted above, does not challenge in general terms the sufficiency of the Law Firms evidence and, instead, like the original brief, cabins MedStars complaint to whether attorney immunity “absolves” an attorneys failure to fulfill a “promise to ensure payment of medical bills.” As we stated in the majority opinion, this argument is premised on an unpleaded breach-of-contract claim and thus presents no basis for reversing the trial courts summary judgment.
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Moreover, we did not grant MedStar leave to file an amended brief so that MedStar could assert new issues, nor did MedStar state that it desired to assert new issues as a reason for seeking leave.
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This court previously has stated that we “ ‘rarely, if ever,’ ” address issues raised for the first time in amended or supplemental briefs because allowing new issues to be raised outside the prescribed period for filing briefs “ ‘would, in turn, require allowing additional opposing briefs to respond to the new points of error and thereby potentially extend indefinitely the period in which such briefs could continue to be filed.’ ” ERC Midstream LLC v. Am. Midstream Partners, LP, 497 S.W.3d 99, 108 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (quoting Bowles v. State, No. 14-99-01396-CR, 2001 WL 1047026, at *1 n.2 (Tex. App.—Houston [14th Dist.] Sept. 13, 2001, pet. refd) (mem. op., not designated for publication)). Rather, we granted MedStar leave to amend its brief for the reason it requested: to provide this court with recent supreme court authority.
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In any event, the substance of MedStars amended brief is inadequate to helpfully address the issue it did not ask to address in its motion for leave but now belatedly contends it did address in its amended brief. Not only does “[a]dequate appellate briefing entail[ ] more than mentioning arguments in passing,”
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but MedStars amended brief did not substantively discuss the pleaded claims or explain why attorney immunity could or could not apply to such claims. Rather, even in the new Section III.D, MedStar contended that the Law Firm had not established the two elements of attorney immunity
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because (1) MedStar was to be paid, pursuant to the letters of protection, out of Sheikhs recovery and thus MedStars and Sheikhs interests were aligned in the underlying suit, and (2) the Law Firms challenged conduct—failure to comply with “contractual obligations”—was not conduct constituting the provision of “legal” services. These arguments, just as with the parallel sections of MedStars original brief, are fundamentally premised on MedStars theory that attorney immunity cannot protect an attorney from a breach-of-contract claim.
MedStar did not plead a breach-of-contract claim, and nothing in MedStars appellate briefing changes the outcome set forth in the majority opinion. We deny MedStars motion for rehearing.
CONCURRING SUPPLEMENTAL OPINION ON REHEARING
I join the substance of the supplemental opinion on rehearing. I concur only in the denial of the motion for rehearing when the court has obviously “reheard” the case based on appellants motion.
When the 1997 Texas Rules of Appellate Procedure were promulgated, changes were made to rehearing practice in civil appeals. The most significant was that a motion for rehearing in the court of appeals was no longer a jurisdictional prerequisite in civil appeals for further review by the Supreme Court of Texas. Tex. R. App. P. 131(e), 49 Tex. B.J. 586 (Tex. & Tex. Crim. App. 1986, amended 1997). The 1997 Rules also introduced what was intended to be a protection for the nonmoving party: the court of appeals cannot grant a motion for rehearing unless a response is filed or the court requests a response. Tex. R. App. P. 49.2. The goal of Rule 49.2 was to allow the nonmoving party to be able to not file a response and be assured nothing would happen unless the court requested a response.
But nature (and judges) will find a way. Courts of appeals began denying motions for rehearing while simultaneously issuing supplemental opinions, technically complying with the text of Rule 49.2, but not the spirit. Reasonable individuals who are not learned in Texas civil appellate practice can conclude that a court of appeals “rehears” all or part of such cases if the court feels the need to write more. And those who are learned in Texas civil appellate practice should not slumber on the lack of a request for a response—a prudent nonmovant for rehearing should file a response if the nonmovant foresees any possibility that the court of appeals may continue to write. Further writing may not necessarily benefit the nonmovant.
The 1997 goal of allowing a nonmovant to do nothing unless the court of appeals requests a response was a good one. It would have saved clients money. But obviously it was unsuccessful.
If that goal is to be achieved, then Rule 49.2 should be amended to separate rehearing procedure into (1) denying the motion for rehearing and precluding the court of appeals from writing further or (2) granting the motion for rehearing and separately deciding whether to grant or deny the requested relief, while allowing the court of appeals to write further. I do not attempt to draft a proposed amendment in this separate writing, which would require more detail than necessary to explain my concurrence.
Because what the court does in this case technically complies with Rule 49.2, I do not believe the courts denial is error, and I join the substance of the supplemental opinion. But I would have granted the motion and denied the requested relief. Doing so acknowledges that the movant has convinced the court to write further, something I would describe as a rehearing.
Accordingly, I respectfully concur.
FOOTNOTES
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. See MedStar Funding, LC v. Willumsen, 650 S.W.3d 809 (Tex. App.—Houston [14th Dist.] Apr. 19, 2022, no pet. h.).
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. An appellate court generally may not reverse a trial courts judgment without properly assigned error. See Cent. Educ. Agency v. Burke, 711 S.W.2d 7, 8 (Tex. 1986) (per curiam).
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. In fact, MedStar stated in its motion to amend that its amendment “raise[d] no new issue” because, according to MedStar, it “repeatedly asserted in this appeal that [the Law Firm] failed to establish [it was] entitled to summary judgment.” As previously explained, MedStars position is belied by its prior briefing. See MedStar, 650 S.W.3d at 816-17.
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. See Tex. R. App. P. 38.7 (“A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.”).
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. Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 344 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
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. Attorney immunity protects an attorney against a non-clients claim when:the claim is based on conduct that (1) constitutes the provision of “legal” services involving the unique office, professional skill, training, and authority of an attorney and (2) the attorney engages in to fulfill the attorneys duties in representing the client within an adversarial context in which the client and the non-client do not share the same interests and therefore the non-clients reliance on the attorneys conduct is not justifiable.Bernardo Grp., 631 S.W.3d at 78 (emphasis in original).
Kevin Jewell, Justice
(Spain, J., concurring)