October 25, 2021
To begin catching up, let’s start with a Texas Supreme Court decision which confirms that on appeal you might be able to rely on a statute and buzz words you didn’t mention below.
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SCOTX recognized that courts could take a party’s pro se status into account when “construction of a party’s filings in part ‘turns on [a litigant’s] state of mind.’” However, SCOTX provided some comforting words for those who, on appeal, rely on a previously uncited statute, or invoke previously unmentioned buzz words.
SCOTX recognized that courts could take a party’s pro se status into account when “construction of a party’s filings in part ‘turns on [a litigant’s] state of mind.’” However, SCOTX provided some comforting words for those who, on appeal, rely on a previously uncited statute, or invoke previously unmentioned buzz words:
Summary Judgment: “ This Court has ‘often held that a party sufficiently preserves an issue for review by arguing the issue’s substance, even if the party does not call the issue by name.’ St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020). In the same vein, parties on appeal need not always ‘rely on precisely the same case law or statutory subpart’ on which they relied below. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). And while appellate courts ‘do not consider issues that were not raised . . . below,’ parties may ‘construct new arguments in support of issues’ that were raised. Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014). These principles have been applied in reviewing grants of summary judgment. See Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019); Nath, 446 S.W.3d at 365.
“The question is whether Li sufficiently preserved the issue of arbitrary enforcement under section 202.004(a) of the Property Code for review by arguing the issue’s substance, even though she did not [*7] specify the statutory subpart on which she now focuses or couch her argument in the subpart’s terminology. We hold that she did. Both Li’s response to the Association’s summary-judgment motion and her cross-motion for summary judgment argued that the Association ‘selectively enforced’ its restrictive covenants and failed to engage in ‘fair dealing’ or apply the covenants in an ‘equal and same manner [sic].’ Although she did not use the words ‘arbitrary, capricious, or discriminatory’ or cite section 202.004(a), she argued the issue’s substance despite not calling it by name. Flakes, 595 S.W.3d at 214. She did so by arguing that she was singled out for discriminatory and arbitrary treatment because the deed restrictions were ‘selectively enforced’ against her.
“Li’s pleadings further elaborated on the selective-enforcement argument contained in her summary-judgment papers by explaining that ‘[m]any other property owners . . . have lived with much worse violations . . . for many years without being enforced, sued, [or] fined by the [Association].’….
“The Association contends that even if Li’s allegation of selective enforcement would otherwise have been enough to preserve a complaint under section 202.004(a), she disclaimed reliance on section 202.004 by instead citing section 4.02.3 of the Covenants. We have held, however, that mistakenly citing the wrong legal authority does not necessarily waive an argument whose substance is otherwise made known to the court. See Nath, 446 S.W.3d at 364-65 (party adequately preserved for appeal issue of whether sanctions were excessive in violation of due process clause even though he mistakenly cited Eighth Amendment). Li’s inapposite reference to section 4.02.3 was a mistake by a pro se litigant, not an invocation of alternative authority that altered the substance of Li’s argument.
“Indeed, the record indicates that the Association was under no misimpression as to the substance of Li’s argument [as shown by the Association’s response to Ms. Li’s arguments]. …Finally, it bears noting that Li represented herself during the relevant stages of the district court proceedings. This Court [*10] has said that ‘[t]here cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves.’ Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Likewise, ‘[l]itigants who represent themselves must comply with the applicable procedural rules.’ Id. at 185. Our more recent cases, however, have explained that application of a procedural rule—particularly one that ‘turns on an actor’s state of mind’—‘may require a different result when the actor is not a lawyer. [This] does not create a separate rule, but recognizes the differences the rule itself contains.’ Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). This principle is applicable here, because courts’ construction of a party’s filings in part ‘turns on [a litigant’s] state of mind.’” Li v. Pemberton Park Cmty. Ass’n, No. 20-0571, 65 Tex. Sup. Ct. J. 9, 2021 Tex. LEXIS 931, at *6-7 (Oct. 1, 2021) (footnotes omitted)
I hope this helps.
Yours, Steve Hayes