Matthew Rollins and Carl Garner v. Denton County, Texas, Sheriff William B. Travis, and Lisa Uhlich ( 2015 )

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
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MEMORANDUM OPINION1
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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
6