(a) Form of Brief.
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(1) An appellee’s brief must conform to the requirements of Rule 38.1, except that:
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- (A) the list of parties and counsel is not required unless necessary to supplement or correct the appellant’s list;
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- (B) the appellee’s brief need not include a statement of the case, a statement of the issues presented, or a statement of facts, unless the appellee is dissatisfied with that portion of the appellant’s brief; and
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- (C) the appendix to the appellee’s brief need not contain any item already contained in an appendix filed by the appellant.
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(2) When practicable, the appellee’s brief should respond to the appellant’s issues or points in the order the appellant presented those issues or points.
(b) Cross-Points.
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(1) Judgment Notwithstanding the Verdict. When the trial court renders judgment notwithstanding the verdict on one or more questions, the appellee must bring forward by cross-point any issue or point that would have vitiated the verdict or that would have prevented an affirmance of the judgment if the trial court had rendered judgment on the verdict. Failure to bring forward by cross-point an issue or point that would vitiate the verdict or prevent an affirmance of the judgment waives that complaint. Included in this requirement is a point that:
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- (A) the verdict or one or more jury findings have insufficient evidentiary support or are against the overwhelming preponderance of the evidence as a matter of fact; or
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- (B) the verdict should be set aside because of improper argument of counsel.
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(2) When Evidentiary Hearing Needed. The appellate court must remand a case to the trial court to take evidence if:
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- (A) the appellate court has sustained a point raised by the appellant; and
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- (B) the appellee raised a cross-point that requires the taking of additional evidence.