Strather v. Dolgencorp of Texas, Inc.

OPINION ON REHEARING

Edward Charles Strather has filed a motion for rehearing in which he contends (1) his second issue on appeal constitutes a general, rather than a specific, issue; (2) the trial court could not have reasonably granted summary judgment on the basis of limitations because his amended petition made clear that limitations did not apply; and (3) caselaw establishes that this Court must affirm summary judgment only if the movant’s theories have merit.

In our opinion on original submission, we held Strather raised specific, rather than general, issues on appeal, but failed to attack each of the grounds on which Dolgencorp moved for summary judgment. Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d 420, 422-23 (Tex.App.-Texarkana 2002, no pet. h.). We therefore affirmed the summary judgment. Id. at 423. Though we are sympathetic to Strather’s procedural plight on appeal, we are constrained by precedents and must overrule his motion for rehearing.

Nature of Issue on Appeal

Strather contends his second issue on appeal constitutes a general issue akin to the one the Texas Supreme Court set out in Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). In Malooly, the Texas Supreme Court suggested the following general issue, which would allow our review of even unargued grounds on which summary judgment should have been denied: The trial court erred in granting the motion for summary judgment. Id.

On further reflection, we still believe Strather’s second issue on appeal constitutes a specific issue. In the “Issue Presented” section of his brief, see Tex.R.App. P. 38.1(e), Strather states the issue as, ‘Whether the trial court erred in granting final summary judgment as to all causes of action originally alleged against Appellee?” In two other locations in his brief-in the “Table of Contents” and in his “Argument” section-Strather reformulates the issue to read, “Appellee did not submit any arguments or evidence to negate all of Appellant’s original causes of action and is not entitled to a final summary judgment.” Though this issue in its more general form, like most issues on appeal, begins with general language, we believe it must be read in full and in the context of the posture of this case and of Strather’s brief as a whole. It also should be understood in light of Strather’s restatement.

In his argument supporting his first issue on appeal, Strather contended the trial court erred in granting summary judgment because his affidavit was sufficient to overcome Dolgencorp’s defective party defense. In his argument supporting his second issue on appeal, he contended Dol-geneorp’s summary judgment proof only addressed one of his causes of action (i.e., *425that Dolgencorp was negligent in loading the trailer) and did not address his other four causes of action (i.e., that Dolgencorp failed to properly train its employees in loading trailers, to supervise and inspect the loading of the trailer Strather was to pull and unload, and to warn Strather of danger).

In this context, Strather’s second issue on appeal, in alleging the trial court erred in granting summary judgment “as to all causes of action originally alleged against Appellee,” goes beyond the nature and purpose of the general issue suggested in Malooly.1 His second issue clearly supplements his first issue. That is because, with his second issue, Strather argues essentially that, even if the summary judgment proof demonstrated Dolgencorp was not potentially liable on Strather’s cause of action asserting negligent loading, the proof faded to show Dolgencorp was not potentially hable on Strather’s other causes of action.

An appellant’s brief should “state concisely all issues or points presented for review,” but the statement of an issue is to be read as including other issues that are “fairly included” under the issues as stated by the appellant. Tex.R.App. P. 38.1(e). In general, “substantial compliance with [Rule 38] is sufficient.” Tex.R.App. P. 38.9. Strather’s second issue fairly includes the party defect argument as to the unaddressed causes of action, but not the limitations affirmative defense. It is therefore a specific issue.

The result of that conclusion is that Strather has failed to chahenge on appeal the limitations point, thus waiving it. Malooly Bros., Inc., 461 S.W.2d at 121; Reyes v. Storage & Processors, Inc., 86 S.W.3d 344 (Tex.App.-Texarkana Sept. 2002, no pet. h.); Simmons v. Healthcare Ctrs. of Tex., Inc., 55 S.W.3d 674 (Tex.App.-Texarkana 2001, no pet.).

Limitations as Ground for Summary Judgment

Strather next contends we erred in affirming summary judgment because Dol-gencorp’s limitations defense had no merit in light of his amended petition, citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). In Star-Telegram, the Texas Supreme Court wrote, “The appellate court must affirm the summary judgment if any one of the movant’s theories has merit.” Id. Strather wants to read Star-Telegram as requiring appellate courts to conduct an independent review of each ground for summary judgment, even when a party fails to attack that ground on appeal. Star-Telegram, however, does not stand for that proposition.

The portion of Star-Telegram to which Strather refers is merely a recitation of the general rule that, where the trial court does not give the basis on which it granted summary judgment, the appellate court can affirm the summary judgment if any basis alleged in the motion has merit. Id. But when a pai’ty fails to attack one of the grounds alleged in the motion for summary judgment, he or she waives the error and summary judgment must be affirmed. See Malooly Bros., Inc., 461 S.W.2d at 121.

Strather also contends he is only required to attack grounds on which the trial court properly could have granted summary judgment. He contends the trial court could not have granted summary judgment based on limitations because he *426amended his petition to remove the limitations problem. We addressed this contention in our opinion on original submission when we wrote:

Were we to remove Strather’s burden of attacking each of the possible grounds for granting summary judgment by simply referencing his amended pleadings and assuming the trial court could not have granted summary judgment in light of those amended pleadings, we would effectively be placing ourselves in the role of the trial court in ruling on the motion for summary judgment. We would be assuming the trial court did not rule-either correctly or incorrectly-on the motion it had before it. We decline to set such a precedent, especially because the burden of attacking each possible ground alleged in the summary judgment motion is relatively light.

Strother, 96 S.W.3d 423.

We acknowledge that, at times, the consequences of requiring the appellant to attack on appeal each ground alleged in the motion for summary judgment can seem unfair. The consequences seem even more unfair when (1) the appellant fails to attack on appeal an apparently unmeritorious ground for granting summary judgment, and (2) the record (but not the order) discloses that the trial court appears not to have based its decision to grant summary judgment on the unchallenged, suspect ground.

Both of those conditions exist in the present case, but the perceived unfairness arises more from the latter condition than the former. That is, if the record did not disclose the reason the trial court gave for granting summary judgment, then we could not know whether the trial court granted summary judgment on the basis of limitations despite Strather’s amended petition. Requiring Strather to challenge each of the grounds alleged in the motion for summary judgment would seem less unfair because that error could only be remedied if it were properly challenged on appeal.

We are constrained, however, to look only to the order granting summary judgment to determine the trial court’s reasons for ruling. Simmons, 55 S.W.3d at 680. That rule has a fairly sound policy basis in that it gives litigants and appellate courts a single place to look to determine why the trial court granted summary judgment. We thus are not forced to parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.2

We overrule Strather’s motion for rehearing.

. If Strather’s second issue on appeal had ended with "the trial court erred in granting final summary judgment," it would have been a general issue as defined by Malooly. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.1970). Yet it continued, thus limiting its scope and making it a specific issue.

. A trial court can, and we think should, disclose in its order the reasons it granted summary judgment. We encourage the Texas Supreme Court to adopt rules requiring the trial court to disclose its reasons for granting summary judgment.