• How Not to Win an Appeal: Texas Midstream Gas Services v. City of Grand Prairie
  • June 11, 2010 | Author: Kendall M. Gray
  • Law Firm: Andrews Kurth LLP - Houston Office
  • An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits.

    In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

        Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.... However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

    The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

        We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

    The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.