concurring.
I concur in the result the majority reach and with much of their reasoning. However, I disagree that Hartsough has failed to complain that summary judgment was erroneously rendered on a ground not raised by Steinberg’s motion.
The majority admit that Hartsough’s brief explicitly states the contention that Steinberg asserted the wrong statute of limitations in his motion for summary judgment, and that the judgment should be reversed for that reason. The majority even quote a sentence from the brief which clearly raises the issue. The majority nevertheless conclude that the issue can be ignored, apparently for two reasons.
First, the majority seem to think one sentence is not enough to raise the issue. “Other than this one sentence,” the majority write, Hartsough does not argue the issue. How many sentences does it take to raise an issue on appeal? Two? Ten? Would one paragraph, or even one page, in a 50-page brief be enough? The majority fail to explain why one sentence is not enough, or what would be.
Second, the majority appear to justify ignoring the issue because it is not what they perceive to be “the thrust of Hart-sough’s argument”. The majority offer no guidance for distinguishing between “thrust” arguments and “non-thrust” arguments, nor do they explain why the latter are not entitled to consideration.
Over a decade ago the Supreme Court wrote:
This Court has ... adopted a liberal rule with reference to the construction of points contained in appellants’ briefs and applications for writ of error and will pass on the merits of a point of error in the light of the statement and argument thereunder.
O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976). We should do the same. For now, wary practitioners should take note that for arguments to receive consideration here, they must not only be made, they must also be sufficiently emphasized in the briefs.
On the merits, I see no difficulty in diS' posing of Hartsough’s contention. This is not a case to consider whether a summary judgment can be affirmed on grounds not expressly presented to the trial court. Steinberg’s motion does not limit itself to section 16.003 of the Texas Civil Practice and Remedies Code Annotated but relies on “the appropriate two-year statute of limitations.” The ambiguity in Steinberg’s motion is clarified by Hartsough’s response and the argument before the trial court, both explicitly addressing the issue whether Hartsough’s claims are barred by section 17.56A of the Texas Business and Commerce Code Annotated. This is sufficient to meet the requirement that summary judgment issues be expressly presented to the trial court. See Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 517 (Tex.1980); City of Asherton v. Trigo, 714 S.W.2d 90, 92 (TexApp.—San Antonio 1986, no writ).
I agree with the majority that the judgment of the district court must be affirmed. In my view, however, Hartsough is entitled to have all his arguments, even his one-sentence arguments, addressed. Texas Rule of Appellate Procedure 90(a).