Malooly issue in Texas

2023Camelot argued McKeough also 5 An issue asserting merely “the trial court erred in granting summary judgment” is sometimes referred to as a Malooly issue, and, though broad and general, has been held “to allow argument as to all the possible grounds upon which summary judgment should have been denied.” Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 9 could not produce any evidence of the same elements of his claim for breach of the Bylaws. 6, 7 In support of his response to Camelot’s motion, McKeough submitted his own affidavit and correspondence by which he requested repairs

2023As a preliminary matter, we first turn to address Camelot’s evidentiary argument common to proof of both McKeough’s counterclaims; namely, it argues McKeough’s appeal fails because 5 An issue asserting merely “the trial court erred in granting summary judgment” is sometimes referred to as a Malooly issue, and, though broad and general, has been held “to allow argument as to all the possible grounds upon which summary judgment should have been denied.” Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). 6 In its motion, Camelot argued adequate time for discovery had passed, and thou

2024Id. at 270 (citing Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497 , 502–03 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument)).

2018Rangel, 333 S.W.3d at 270 , citing Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497 , 502-03 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument).

2010See Cruikshank v. Consumer Direct MoHgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.-Houston [14th Dist.] 2004, pet. denied)(a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex.App.Corpus Christi 1998, no pet,){Malooly allows the non-movant to argue broadly on appeal under a general point of error, but does not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal); see also Plexchem International,

2010See Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.--Houston [14th Dist.] 2004, pet. denied)(a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex.App.-- Corpus Christi 1998, no pet.)(Malooly allows the non-movant to argue broadly on appeal under a general point of error, but does not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal); see also Plexchem Internatio

2010See Cruikshank v. Consumer Direct MoHgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.-Houston [14th Dist.] 2004, pet. denied)(a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex.App.Corpus Christi 1998, no pet,){Malooly allows the non-movant to argue broadly on appeal under a general point of error, but does not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal); see also Plexchem International,

2010See Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502-03 (Tex.App.--Houston [14th Dist.] 2004, pet. denied)(a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex.App.-- Corpus Christi 1998, no pet.)(Malooly allows the non-movant to argue broadly on appeal under a general point of error, but does not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal); see also Plexchem Internatio

2022Although not as clearly organized as Wal-Mart asserts is necessary, Harkins argues in her argument and authorities that Wal-Mart was aware that 1) it had customers who would drag their feet when they walked in the store; 2) customers who drag their feet while pet. denied) (mem. op.); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.— Dallas 2009, pet. denied).

2022Although not as clearly organized as Wal-Mart asserts is necessary, Harkins argues in her argument and authorities that Wal-Mart was aware that: 1) it had customers who would drag their feet when they walked in the store; 2) customers who drag their feet while pet. denied) (mem. op.); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.— Dallas 2009, pet. denied).

2015Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. -5- 04-14-00085-CV 1989)); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

2014Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.— Dallas 2009, pet. denied); see Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); see also Malooly Bros, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

2024Id. at 270 (citing Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497 , 502–03 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument)).

2018Rangel, 333 S.W.3d at 270 , citing Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497 , 502-03 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument).

2024See Brown v. Hearthwood II Owners Ass’n, Inc., 201 S.W.3d 153, 156 (Tex. App.– Houston [14th Dist.] 2006, pet. denied).

2009See Brown v. Hearthwood II Owners Ass’n, Inc., 201 S.W.3d 153, 156-57 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (holding that general Malooly issue preserves complaint only if ground challenged on appeal is supported by argument); see also Tex.R.App.

2023See Border Demolition & Env’t, Inc. v. Pineda, 535 S.W.3d 140, 150 (Tex. App.—El Paso 2017, no pet).

2023See Border Demolition & Env’t, Inc. v. Pineda, 535 S.W.3d 140, 150 (Tex. App.—El Paso 2017, no pet).

2015See, e.g., Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (“[A] party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post- 4 Even assuming that the Garzas had asserted a general Malooly issue challenging the summary judgment as a whole (they did not), they nevertheless would still be required to brief all aspects of their challenge on appeal, which the Garzas did not do.

2015See, e.g., Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (“[A] party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post- 4 Even assuming that the Garzas had asserted a general Malooly issue challenging the summary judgment as a whole (they did not), they nevertheless would still be required to brief all aspects of their challenge on appeal, which the Garzas did not do.

2007Co., 893 S.W.2d 92, 106 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (applying rule 74(f) of former Rules of Appellate Procedure, governing briefing requirements, to decline to “perform independent review of the record and applicable law” to address alternate grounds advanced for traditional summary judgment not challenged by points of error). 5 Though McCoy specifies two further issues or “questions” in addition to his Malooly issue, his brief includes neither an issue nor an argument that challenges the no-evidence grounds asserted by the Rogerses in moving for summary judgment.

2007Despite McCoy’s broad Malooly challenge, therefore, and in accordance with Walling and Vawter and this Court’s holding in Maranatha Temple, 893 S.W.2d at 106 , we may not address whether the trial court erred by rendering no-evidence summary judgment in favor of the Rogerses on McCoy’s claim that they fraudulently manipulated details of the execution to ensure that McCoy would not receive notice of the *273 execution sale. 6 Accordingly, we affirm the portion of the judgment of the trial court that may have been rendered on McCoy’s fraud claim.

2007See Science Spectrum, Inc. , 941 S.W.2d at 911 .

2007See Science Spectrum, Inc., 941 S.W.2d at 911 .

2009Because appellant, though raising a general Malooly issue, has presented no argument related to any of these causes of action on appeal, we will affirm the trial court’s grant of summary judgment on such claims, and we will proceed to determine whether the trial court correctly granted summary judgment to appellee on appellant’s sole remaining claim—false imprisonment—which he properly raised in his third issue. (footnote: 15) See Henriqu ez, 177 S.W.3d at 255 ; see also City of The Colony v. N. Tex. Mun.

2009P. 38.1(i); Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241, 255 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (a general Malooly issue is sufficient to preserve a complaint only if the specific ground challenged on appeal is supported by argument); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex. App.—Corpus Christi 1998, no pet.); Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433-34 (Tex. App.—Fort Worth 1997, pet. denied).

2018See King v. Graham Holding Co. , 762 S.W.2d 296 , 299 (Tex. App.-Houston [14th Dist.] 1988, no writ).

2018See King v. Graham Holding Co. , 762 S.W.2d 296 , 299 (Tex. App.-Houston [14th Dist.] 1988, no writ).

2015Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. -5- 04-14-00085-CV 1989)); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

2015App. P. 38.3; Hailey v. Paduh, No. 04-12-00823-CV, 2014 WL 1871334 , at *12 (Tex. App.—San Antonio May 7, 2014, no pet.) (mem. op.) (holding Malooly issue in opening brief did not preserve challenge to ground for summary judgment argued for first time in reply brief); HB Turbo, L.P. v. Turbonetics Eng’g & Servs., No. 13-06-00083-CV, 2007 WL 1629949 , at *3 (Tex. App.—Corpus Christi June 7, 2007, pet. denied) (mem. op.) (acknowledging that “[a]t times, the consequences of requiring the appellant to attack on appeal each ground alleged in the motion for summary judgment can seem unfair” and decl

2015Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. -5- 04-14-00085-CV 1989)); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied); see Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex. App.—San Antonio 2003, no pet.); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

2011Ellis v. Precision Engine Rebuilders, Inc. , 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed.”); Am.

2011Ellis v. Precision Engine Rebuilders, Inc. , 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed.”); Am.

2011An appellant may raise a single issue that complains, ―The trial court erred in granting the motion for summary judgment‖; such an issue allows the appellant to brief all possible grounds upon which summary judgment should have been denied.17 This issue is commonly known as a ―Malooly issue.‖ Alternatively, an 14 Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). 15 Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). 16 Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapma

2011An appellant may raise a single issue that complains, ―The trial court erred in granting the motion for summary judgment‖; such an issue allows the appellant to brief all possible grounds upon which summary judgment should have been denied.17 This issue is commonly known as a ―Malooly issue.‖ Alternatively, an 14 Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). 15 Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). 16 Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapma

2011An appellant may raise a single issue that complains, ―The trial court erred in granting the motion for summary judgment‖; such an issue allows the appellant to brief all possible grounds upon which summary judgment should have been denied.17 This issue is commonly known as a ―Malooly issue.‖ Alternatively, an 14 Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). 15 Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). 16 Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapma

2011An appellant may raise a single issue that complains, ―The trial court erred in granting the motion for summary judgment‖; such an issue allows the appellant to brief all possible grounds upon which summary judgment should have been denied.17 This issue is commonly known as a ―Malooly issue.‖ Alternatively, an 14 Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). 15 Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). 16 Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapma

2009Water Dist. , 272 S.W.3d 699, 739 (Tex. App.—Fort Worth 2008, pet. filed) (affirming the trial court’s summary judgment on a promissory estoppel claim because the appellant set forth “zero argument or evidence in its brief challenging the trial court’s grant”).

2009P. 38.1(i); Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241, 255 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (a general Malooly issue is sufficient to preserve a complaint only if the specific ground challenged on appeal is supported by argument); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex. App.—Corpus Christi 1998, no pet.); Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433-34 (Tex. App.—Fort Worth 1997, pet. denied).

2009See Gray v. Nash, 259 S.W.3d 286, 289 (Tex. App.—Fort Worth 2008, pet. denied). 15 … In his third issue, appellant also contends that appellee violated his federal and state constitutional rights.

2004Criukshank = s fourth point of error specifically states: A The trial court erred in granting CDM = s motion for summary judgment because numerous fact issues existed. @ Under the Malooly rule, a point of error stating generally the trial court erred in granting summary judgment A is sufficient to preserve error and to allow argument as to all possible grounds upon which summary judgment should have been denied. @ Spera v. Fleming, Hovenkamp & Grayson, P.C. , 25 S.W.3d 863, 874 (Tex. App. C Houston [14th Dist.] 2000, no pet.) (quoting Plexchem Int = l, Inc. v. Harris County Appraisal Dist. , 9

2004Criukshank = s fourth point of error specifically states: A The trial court erred in granting CDM = s motion for summary judgment because numerous fact issues existed. @ Under the Malooly rule, a point of error stating generally the trial court erred in granting summary judgment A is sufficient to preserve error and to allow argument as to all possible grounds upon which summary judgment should have been denied. @ Spera v. Fleming, Hovenkamp & Grayson, P.C. , 25 S.W.3d 863, 874 (Tex. App. C Houston [14th Dist.] 2000, no pet.) (quoting Plexchem Int = l, Inc. v. Harris County Appraisal Dist. , 9