Silk v. Terrill, 898 S.W.2d 764 (Tex. 1995). · Go Syfert
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Silk v. Terrill, 898 S.W.2d 764 (Tex. 1995). Cases Citing This Book View Copy Cite
“judicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature. in the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected.”
53 citation events (32 in the last 25 years) across 3 distinct courts.
Strongest positive: Gilchrist v. Bandera Electric Cooperative, Inc. (texapp, 1996-05-16)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Gilchrist v. Bandera Electric Cooperative, Inc. (2×) also: Cited as authority (rule)
Tex. App. · 1996 · quote attribution · 1 verbatim quote · confidence high
judicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature. in the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected.
discussed Cited as authority (rule) Daniel Walker and Kristen Walker v. Baptist St. Anthony's Hospital and Rhodesia Castillo, M.D.
Tex. · 2024 · confidence medium
We construe briefs liberally, disdain immaterial briefing waiver, and elevate justice over procedural deficiencies of many stripes. 1 For that 1 E.g., Horton v. Stovall, 591 S.W.3d 567 , 570 (Tex. 2019) (“The interests of justice and fair play demand that cases be decided on the merits when technical deficiencies in appellate briefs ‘can be easily corrected.’” (quoting Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995))); Willis v. Donnelly, 199 S.W.3d reason, when error exists in the reasoning of the court of appeals, a respondent is entitled to resolution of dispositive unaddressed iss…
discussed Cited as authority (rule) David Hornberger, in His Official Capacity, Ryan Anderson, in His Official Capacity, Brian Hamilton, in His Official Capacity, Bonnie Giddens, in Her Official Capacity, Lisa Krenger, in Her Official Capacity, Perry Shankle, in His Official Capacity, Stacy Sharp, in Her Official Capacity, Dr. Dana Bashara, in Her Official Capacity, and Alamo Heights Independent School District v. Selina Jones, Roy Hummel and Leslie Michelle Pruitt
Tex. App. · 2024 · confidence medium
See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (advising appellate courts to “reach the merits of an appeal whenever reasonably possible”); Verburgt v. Dorner, 959 S.W.2d 615 , 616–17 (Tex. 1997) (“This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal.”); Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995) (in the context of supplementing the record, “[j]udicial economy is not served when a case, ripe for decision,…
discussed Cited as authority (rule) David Hornberger, in His Official Capacity, Ryan Anderson, in His Official Capacity, Brian Hamilton, in His Official Capacity, Bonnie Giddens, in Her Official Capacity, Lisa Krenger, in Her Official Capacity, Perry Shankle, in His Official Capacity, Stacy Sharp, in Her Official Capacity, Dr. Dana Bashara, in Her Official Capacity, and Alamo Heights Independent School District v. Selina Jones, Roy Hummel and Leslie Michelle Pruitt
Tex. App. · 2024 · confidence medium
See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (advising appellate courts to “reach the merits of an appeal whenever reasonably possible”); Verburgt v. Dorner, 959 S.W.2d 615 , 616–17 (Tex. 1997) (“This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal.”); Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995) (in the context of supplementing the record, “[j]udicial economy is not served when a case, ripe for decision,…
cited Cited as authority (rule) In the Interest of A.C.T.M., a Child v. the State of Texas
Tex. App. · 2023 · confidence medium
“Judicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature.” Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995).
discussed Cited as authority (rule) Cody Don Bell v. State of Texas for the Protection of S.E.G.
Tex. App. · 2022 · confidence medium
Courts of appeals have discretion to permit supplementation when the record reflects omitted matters but are guided by the principal that “cases should be decided on the merits when deficiencies of this nature can be easily corrected.” Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995)(per curiam).
cited Cited as authority (rule) Cody Don Bell v. State of Texas for the Protection of S.E.G.
Tex. App. · 2022 · confidence medium
In Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995), a plaintiff took an appeal from a summary judgment in favor of a doctor defendant in a medical malpractice action.
discussed Cited as authority (rule) Thomas George Craaybeek v. Marilyn Braune Craaybeek
Tex. App. · 2021 · signal: cf. · confidence medium
App. P. 38.9(b) (discussing potential consequences of “[s]ubstantive [d]efects” in briefing); Cf. Horton, 591 S.W.3d at 567, 670 (discouraging appellate courts from “disposing of appeals based on harmless procedural defects” if such defects “can be easily corrected” (quoting Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995) (per curiam))); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) (similar).
discussed Cited as authority (rule) Robbie Lesa Hames Horton v. Kimberly A. Stovall
Tex. · 2019 · confidence medium
The interests of justice and fair play demand that cases be decided on the merits when technical deficiencies in appellate briefs “can be easily corrected.” Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995).
cited Cited as authority (rule) B.C. v. Steak N Shake Operations, Inc.
Tex. App. · 2017 · confidence medium
See In re K.C.B., 251 S.W.3d 614 , 516 (Tex. 2008) (per curiam); Worthy v. Collagen Carp., 967 S.W.2d 360, 366 (Tex. 1998); Silk v. Terrell, 898 S.W.2d 764, 766 (Tex. 1995) (per curiam).
discussed Cited as authority (rule) J.M. Arpad Lamell v. OneWest Bank, FSB, a Foreign Corporation
Tex. App. · 2015 · confidence medium
Motor Vehicle Board of Tex. v. EPIADA, 1 S.W.3d 108, 111 (Tex. 1999); Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995); Crown Life Insurance Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-2 (Tex. 1991). 32.
discussed Cited as authority (rule) In Re Cervantes (2×)
Tex. App. · 2009 · signal: cf. · confidence medium
Leasing Carp., 774 S.W.2d 673, 677-78 (Tex.App.-Texarkana 1989, writ denied) (op. on second motion for reh’g); K & S Interests, 749 S.W.2d at 891 ; cf. Silk v. Terrill, 898 S.W.2d 764, 765 (Tex.1995) (per curiam) (appellate court abused its discretion by denying motion to supplement record filed "with motion for rehearing).
cited Cited as authority (rule) James Lee Tilley v. State
Tex. App. · 2007 · confidence medium
In the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected.” 898 S.W.2d 764, 766 (Tex. 1995).
cited Cited as authority (rule) Castaneda v. Texas Department of Protective & Regulatory Services
Tex. App. · 2004 · confidence medium
Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995).
discussed Cited as authority (rule) Libhart v. Copeland (2×) also: Cited "see"
Tex. App. · 1997 · confidence medium
In the interests of justice and fair play, eases should be decided on the merits when deficiencies of this nature can be easily corrected.” Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995); accord Soto v. El Paso Natural Gas Co., 942 S.W.2d 644, 645 (Tex.App. — El Paso 1996, no writ).
cited Cited as authority (rule) Soto v. El Paso Natural Gas Co.
Tex. App. · 1996 · confidence medium
Supplementation in the Interest of Justice This situation is governed by Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995).
cited Cited "see" Kenneth R. Jacob and Blair Jacob v. Neal Wood, Individually and D/B/A Neal Wood Electric
Tex. App. · 2010 · signal: see · confidence high
See Silk v. Terrill, 35 898 S.W.2d 764, 766 (Tex. 1995) (per curiam) (appellate court has broad discretion to allow supplementation of record).
cited Cited "see" Terry and Phyllis Price, Michaela Watson, and Robert L. Mays, Jr. v. Philip Schroeder, Bill Smith, Jerry Beene, Leroy Harrington, Reagan Hill, Jerry Mitchell, Gary Moore, Tony Silva, Martin Ramsay, Johnnie Terrazas, Ray Wainner, John Watson, David Beene, A. v. Welsh, and First Baptist Church of Bulverde
Tex. App. · 2010 · signal: see · confidence high
See Silk v. Terrill , 898 S.W.2d 764, 766 (Tex. 1995) (per curiam) (appellate court has broad discretion to allow supplementation of record).
cited Cited "see" Boggs v. Bottomless Pit Cooking Team
Tex. App. · 2000 · signal: see · confidence high
See Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995).
cited Cited "see" Tenet Healthcare Ltd. v. Cooper
Tex. App. · 1998 · signal: see · confidence high
See Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995).
cited Cited "see" Stokes v. Aberdeen Insurance Co.
Tex. · 1996 · signal: see · confidence high
See Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995); Jamar v. Patterson, 868 S.W.2d at 319 ; McRoberts v. Ryals, 863 S.W.2d 450, 455 (Tex.1993).
discussed Cited "see, e.g." Lagoye, Abiodun Henri v. Victoria Wood Condominium Association, Genesis Property Management, Genesis Community Management Allegedly F/K/A Genesis Property Management, Terry H. Sears, Etan Mirwis, Harlan Stein, and Kit Snyder
Tex. App. · 2003 · signal: see also · confidence medium
See City of San Antonio, 828 S.W.2d at 418 ; Matlock , 948 S.W.2d at 310 ; see also Silk v. Terrill , 898 S.W.2d 764, 766 (Tex. 1995) (per curiam ) (holding judicial economy is not served when a case ripe for decision is decided on a procedural technicality; cases should be decided on the merits when procedural deficiencies can easily be corrected); Blankenship v. Robins , 878 S.W.2d 138, 139 (Tex. 1994) (per curiam ) (finding motion for new trial erroneously filed in severed cause number rather than in original cause number nonetheless extended appellate timetable in original cause number).
discussed Cited "see, e.g." LaGoye v. Victoria Wood Condominium Ass'n
Tex. App. · 2003 · signal: see also · confidence medium
See City of San Antonio, 828 S.W.2d at 418 ; Matlock, 948 S.W.2d at 310 ; see also Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995) (per curiam) (holding judicial economy is not served when a case ripe for decision is decided on a procedural technicality; cases should be decided on the merits when procedural deficiencies can easily be corrected); Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex.1994) (per curiam) (finding motion for new trial erroneously filed in severed cause number rather than in original cause number nonetheless extended appellate timetable in original cause number).
cited Cited "see, e.g." Durham, Anna L. v. Wal-Mart Stores, Inc.
Tex. App. · 2003 · signal: see also · confidence medium
App. P . 38.1(f); 38.1(h); 34.1; see also Silk v. Terrill, 898 S.W.2d. 764, 766 (Tex. 1995); Sewell v. Adams, 854 S.W.2d 257, 259, n.1 (Tex. App .
discussed Cited "see, e.g." Gallagher v. Fire Insurance Exchange
Tex. · 1997 · signal: see also · confidence medium
We concluded that ap *371 pellate courts must construe Rule 55(b) liberally so their decisions “turn on substance rather than procedural technicality.” Crown Life, 820 S.W.2d at 121-22 ; see also Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995) (per curiam) (reversing case in which court of appeals refused supplementation and then affirmed without reaching merits because “[¡judicial economy is not served when a ease, ripe for decision, is decided on a procedural technicality of this nature”).
discussed Cited "see, e.g." Agbor v. St. Luke's Episcopal Hospital (2×)
Tex. App. · 1996 · signal: see also · confidence medium
Moreover, we have been warned by the supreme court that "decision[s] of the courts of appeals should turn on substance rather than procedural technicality." Texas Instruments, 877 S.W.2d at 278 ; Rodriguez, 828 S.W.2d at 418 ; see also Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995) (per curiam) (holding judicial economy is not served when a case ripe for decision is decided on a procedural technicality; cases should be decided on the merits when procedural deficiencies can be easily corrected).
Retrieving the full opinion text from the archive…
Holly SILK, Petitioner,
v.
Robert TERRILL, M.D., Respondent
94-1136.
Texas Supreme Court.
Jun 22, 1995.
898 S.W.2d 764
Paul L. Smith, Kay L. Van Wey, and Matthew C. McKay, Dallas, for petitioner., Richard A. Sayles and Steven E. Aldous, Dallas, for respondent.
Per Curiam.
Cited by 40 opinions  |  Published

On AppliCation FoR WRIT Of Error To The Court Of Appeals For The Fifth District Of Texas

PER CURIAM.

The issue in this case is whether the court of appeals abused its discretion in denying post-submission supplementation of the appellate record. Based on the facts in this record, we hold that it did. Accordingly, pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of this Court reverses the judgment of the court of appeals and remands this case for consideration of the merits of the appeal.

This is a medical malpractice case brought by Holly Silk against Dr. Robert C. Terrill. Terrill filed a motion for summary judgment supported by his own affidavit. Silk’s response included a controverting affidavit from a physician. The trial court granted Terrill’s motion for summary judgment.

Silk perfected her appeal and specifically requested that the district clerk include Terrill’s motion for summary judgment, which purported to have his supporting affidavit attached to it, as part of the record to be transmitted to the court of appeals. However, Terrill’s affidavit was not in fact attached to his motion, but had been filed separately in the trial court. As a result, his affidavit did not become part of the appellate record.

Prior to filing her appellate brief, Silk discovered that Terrill’s affidavit was missing from the record but decided to attach a copy of it to her brief rather than file a motion to supplement the record. Silk contacted Ter-rill’s counsel to apprise him of these facts as a courtesy in the event Terrill wished to cite the affidavit in his response. Terrill’s reply brief in the court of appeals did not raise a reply point regarding the omission of Ter-rill’s affidavit from the record, nor did it challenge the sufficiency of the record for appellate review. Two minutes before oral argument, Terrill’s counsel advised Silk’s counsel for the first time that he would argue that the absence of Terrill’s affidavit rendered the record insufficient for appellate review.

The court of appeals affirmed the summary judgment without reaching the merits because Silk failed to bring forward a sufficient record. The court concluded that it must presume the omitted affidavit supported the trial court’s judgment. Silk then filed motions to supplement the record and for rehearing. The court of appeals denied both of these motions.

Silk contends in this Court that the court of appeals abused its discretion in failing to permit post-submission supplementation of the record to include the omitted affidavit. Terrill counters that this case should be governed by K & S Interests v. Texas American Bank/Dallas, 749 S.W.2d 887 (Tex.App.— Dallas 1988, writ denied), and that the judg[*766] ment of the court of appeals should be affirmed.

While we agree that the court of appeals has broad discretion under Rule 55 of the Texas Rules of Appellate Procedure to allow supplementation of the record so as to include omitted matters, it was an abuse of discretion in this case to refuse to supplement the record. This case is distinguishable from K & S Interests, Inc. v. Texas Am. Bank/Dallas, supra. In K & S, briefs had been submitted, oral arguments on the merits had been heard, and the court of appeals had written a decision on the merits, specifically holding that the order at issue was not a final judgment and that the appeal should be dismissed for want of jurisdiction. On motion for rehearing, K & S sought to supplement the record with affidavits which had not been presented to the trial court and with an additional order of the trial court, in an effort to establish that there was a final, appealable judgment. The court of appeals refused to allow the supplementation.

In the case before us, the omitted affidavit of Dr. Terrill was never at issue. Silk conceded that Terrill’s affidavit sufficiently negated every element of negligence and thus shifted the burden of proof to her to establish the existence of material issue of fact. Further, the court of appeals had Terrill’s affidavit before it. While attaching an affidavit or pleading to an appellate brief will not suffice to make it part of the record, there can be no contention that the court of appeals was in any way misled or that the omitted part of the record was material to a decision on the merits.

Judicial economy is not served when a case, ripe for decision, is decided on a procedural technicality of this nature. In the interests of justice and fair play, cases should be decided on the merits when deficiencies of this nature can be easily corrected. See, e.g., Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 538, 535 (Tex.App. — Dallas 1987, no writ) (op. on reh’g).

Pursuant to Rule 122 of the Texas Rules of Appellate Procedure, without hearing oral argument, a majority of this Court remands the case to the court of appeals for proceedings in accordance with this opinion.