Matthew Rollins and Carl Garner v. Denton County, Texas, Sheriff William B. Travis, and Lisa Uhlich

• Court: Court of Appeals of Texas
• Decided: December 3, 2015
• Docket: 02-14-00312-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00312-CV

MATTHEW ROLLINS AND CARL APPELLANTS GARNER

V.

DENTON COUNTY, TEXAS; APPELLEES SHERIFF WILLIAM B. TRAVIS; AND LISA UHLICH

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 2013-20131-158

MEMORANDUM OPINION1

Appellant Matthew Rollins appeals the trial court’s summary judgment for

Appellees Denton County, Texas; Sheriff William B. Travis; and Denton County

1 See Tex. R. App. P. 47.4. Civil Service Coordinator Lisa Uhlich.2 Rollins filed suit against Appellees

alleging violations of Texas Local Government Code chapters 85 and 158 and

seeking declaratory, mandamus, and injunctive relief. See Tex. Loc. Gov’t Code

Ann. § 85.003(f) (West 2008), §§ 158.031–.040 (West 2008). Appellees

answered, generally denying all of Rollins’s allegations, and pleaded affirmative

defenses, including governmental immunity. In due course, Rollins and

Appellees filed competing motions for summary judgment.3 One of the grounds

on which Appellees moved for summary judgment was their affirmative defense

of immunity. The trial court granted Appellees’ motion for summary judgment

and denied Rollins’s motion for summary judgment without specifying the basis

for its decision and ordered Rollins to pay Denton County $10,000 in attorney’s

fees and costs under the Texas Declaratory Judgment Act (DJA).4 This appeal

followed.

2 Because Appellant Carl Garner did not file a brief or join in Rollins’s brief, we affirm the judgment as to Garner. See Tex. R. App. P. 38.8(a)(3); PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 715 (Tex. App.—Dallas 2011, pet. denied). 3 Rollins filed a traditional motion for summary judgment; Appellees filed a combined no-evidence and traditional motion for summary judgment. 4 We examined and considered whether the trial court’s award of attorneys’ fees and costs to Appellees specifically under the DJA constituted an implicit ruling granting summary judgment for Appellees on that ground, but case law is to the contrary. See, e.g., Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.––Houston [1st Dist.] 2014, no pet.) (holding attorneys’ fees awarded to defendant under DJA proper even when case was dismissed for want of jurisdiction).

2 On appeal, Rollins does not challenge the summary judgment granted on

his claims for mandamus and injunctive relief; he challenges only the summary

judgment granted on his claim for declaratory relief. Rollins phrases his sole

issue as follows: “Whether a sheriff’s department civil service system is created

by statute following the declaration of the results by the county judge following a

petition and election held pursuant to Chapter 158, subchapter B, of the Texas

Local Government Code.” Appellees argue in their brief that we must affirm the

trial court’s summary judgment because Rollins did not specifically challenge,

either by issue or with argument, a ground on which the summary judgment for

Appellees could be based––their affirmative defense of immunity. We have

closely examined Rollins’s brief and the arguments set forth in it. No specific

challenge exists to Appellees’ immunity ground for summary judgment, and

Rollins’s brief contains no argument concerning immunity.5

The law is well-settled that either (1) a specific assignment of error must be

attributed to each ground on which a summary judgment could be based or (2) a

general assignment that the trial court erred by granting summary judgment must

be made, which permits the appellant to assert arguments against all grounds on

which summary judgment could be based. See Malooly Bros., Inc. v. Napier,

461 S.W.2d 119, 121 (Tex. 1970) (articulating this rule); see also, e.g., Star-

Telegram v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (recognizing broad issue was

5 A search of the electronic brief filed by Rollins reveals that the words “immunity” and “immune” do not appear in it.

3 raised and arguments thereunder attacked each ground on which summary

judgment could have been based). Error is not preserved as to every ground on

which summary judgment could be based simply by raising a general issue; the

appellant must also support the issue with argument and authorities challenging

each ground. See, e.g., Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 572

(Tex. App.—El Paso 2014, no pet.) (holding plaintiff waived right to challenge

summary judgment on breach of contract and promissory estoppel causes of

action by failing to assert arguments challenging them in appellate brief); Rangel

v. Progressive Cnty. Mut. Ins. Co., 333 S.W.3d 265, 269–70 (Tex. App.––El Paso

2010, pet. denied) (same). A general Malooly issue preserves a complaint only if

the ground challenged on appeal is supported by argument. Cruikshank v.

Consumer Direct Mortg., Inc., 138 S.W.3d 497, 502–03 (Tex. App.––Houston

[14th Dist.] 2004, pet. denied). When an argument is not made challenging every

ground on which the summary judgment could be based, we are required to

affirm the summary judgment, regardless of the merits of the unchallenged

ground. See, e.g., Malooly, 461 S.W.2d at 120–21 (affirming summary judgment

based on unchallenged ground of affirmative defense of limitations but

expressing “no opinion as to whether a grant of summary judgment would be

proper or erroneous” on that ground); Ramirez, 458 S.W.3d at 572 (affirming

summary judgment based on grounds not challenged in brief on appeal without

referencing merits of ground); Strather v. Dolgencorp of Tex., Inc., 96 S.W.3d

4 420, 422–23 (Tex. App.––Texarkana 2002, no pet.) (affirming summary judgment

based on unchallenged ground although that ground appeared unmeritorious).

Because Rollins’s sole issue challenges only the denial of his motion for

summary judgment on his declaratory-judgment action without addressing the

immunity ground asserted in Appellees’ cross-motion for summary judgment, we

are procedurally constrained to affirm the trial court’s summary judgment without

regard to the merits of Appellees’ immunity claim.6 See, e.g., Malooly, 461

S.W.2d at 120–21; Strather, 96 S.W.3d at 422–23.

We overrule Rollins’s sole issue and affirm the trial court’s judgment and

award of attorneys’ fees and costs for Appellees.

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

6 Although Rollins does challenge the immunity grounds for summary judgment in his reply brief, a reply brief may not be utilized to raise issues not asserted in a party’s brief on the merits. See Tex. R. App. 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 declining to recognize such attack asserted in reply brief); see also, e.g., Hutchison v. Pharris, 158 S.W.3d 554, 564 & n.11 (Tex. App.—Fort Worth 2005, no pet.) (noting the well-established principle and listing supporting cases).

5 DELIVERED: December 3, 2015