by Ryan Philip Pitts, an associate in the appellate practice group of Haynes Boone, LLP’s Houston office.

Other than by the Texas courts, little has been written about Footnote Four of Greene v. Farmers Insurance Exchange.[1]446 S.W.3d 761 (Tex. 2014). That footnote should matter to appellate practitioners. It stands out as the Texas Supreme Court’s first express statement that “arguments” differ from “issues” for preservation purposes. Footnote Four states:

We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.[2]Id. at 764 n.4 (emphasis in original).

This brief article examines Greene, its Footnote Four, and the caselaw that has come after.

I. Greene and Footnote Four

Greene was a summary judgment appeal about insurance. It concerned coverage of fire damage to a home, where the insurance policy excluded coverage if the home sat vacant for more than 60 days.[3]Id. at 764. This home had been vacant, and the insurer denied coverage for the damage.[4]Id.

In a lawsuit, the homeowner argued that both a statutory provision—Texas Insurance Code § 862.054—and Texas public policy precluded the insurer from asserting the vacancy exclusion.[5]Id. The trial court and court of appeals disagreed, granting and upholding summary judgment in the insurer’s favor. The Texas Supreme Court granted review.

The insurer raised new arguments before the Texas Supreme Court. In briefing before the trial court and court of appeals, the insurer did not argue that premium charges, form policies, or endorsements warranted enforcing the exclusion.[6]Id. at 764 n.4. Before the Texas Supreme Court, the insurer did argue that premium charges, form policies, and possible endorsements supported the exclusion’s enforcement. The homeowner asserted waiver:

[The insurer] is attempting to raise a new argument, not made to the trial court or to the court of appeals about premium charges, form policies, and an applicable endorsement that Ms. Greene could have purchased. Farmers should be precluded from raising these arguments for the first time before this Court.[7]Petitioner’s Brief in Reply, Greene v. Farmers Ins. Exch., No. 12-087 (filed June 25, 2013).

The Texas Supreme Court responded with Footnote Four: “We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”[8]Greene, 446 S.W.3d at 764 n.4. The Court did not elaborate on the difference between an “issue” and an “argument.”

The Texas Supreme Court’s silence on what differentiates an issue from an argument may leave the practitioner wondering. Black’s Law Dictionary defines these terms as follows:

  • Issue: “A point in dispute between two or more parties.”[9]Issue, Black’s Law Dictionary (11th ed. 2019).
  • Argument: “A statement that attempts to persuade by setting forth reasons why something is true or untrue, right or wrong, better or worse, etc.; esp., the remarks of counsel in analyzing and pointing out or repudiating a desired inference, made for the assistance of a decision-maker.”[10]Argument, Black’s Law Dictionary.

Assuming these definitions reflect the common understanding, an “issue” refers to a problem, while an “argument” persuades why or why not. What the Court agreed to consider in Greene appears to support this understanding. It considered new whys as to existing problems.

Issue 1

II. Where did Footnote Four come from?

The precise jurisprudential origins of Footnote Four remain unclear. The Texas Supreme Court made the issue-argument distinction without citation to past apposite precedent or any reasoning. It cited Nall v. Plunkett, another summary judgment appeal, for the proposition “that we do not decide issues not presented in the trial court.”[11]Greene, 446 S.W.3d at 764 n.4. Nall quotes Texas Rule of Civil Procedure 166a(c) regarding issue preservation; Nall did not address argument preservation.[12]Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (quoting Tex. R. Civ. P. 166a(c) (“‘Issues not expressly presented to the trial court by written motion, answer or other response shall not be … Continue reading

Having invested a not-insubstantial amount of time, this author cannot locate an earlier Texas Supreme Court decision expressly setting forth the issue-argument distinction.[13]Some earlier cases seem to articulate the same general proposition, without expressly distinguishing between issues and arguments. See, e.g., Gonzales v. Sw. Olshan Found. Repair Co., LLC, 400 S.W.3d … Continue reading Nor do subsequent cases citing Footnote Four reference an earlier decision for the same or similar proposition. Greene seems to mark the issue-argument distinction’s beginning as an expressly articulated concept.

So how and why did Footnote Four spring into being? It’s an interesting question. One might point to the general preservation rule, Texas Rule of Appellate Procedure 33.1(a)(1), which requires a “complaint” made “to the trial court” and articulated “grounds” for the ruling sought. However, in light of Greene, Rule 33.1 raises more questions than answers by using different terminology. Courts have held previously that new “grounds” under Rule 33.1 cannot be raised on appeal.[14]See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (“[T]he non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new … Continue reading Does Greene’s “argument” differ from “grounds” in Rule 33.1(a)(1)?

One might also consider Texas Rule of Appellate Procedure 53.2(f) as possibly relevant to Greene: “If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.” But again, this rule does not draw or suggest any distinction between arguments and issues. Moreover, in Greene, the Court considered new arguments despite that the insurer had not raised them in the court of appeals.[15]But see Apache Corp. v. Davis, 627 S.W.3d 324, 334 (Tex. 2021) (“While Apache made that argument in the trial court, it did not make the argument in the court of appeals and has thus failed to … Continue reading

The precedential precursors of Footnote Four are mysterious. But the policy that underlies it falls right in line with the Texas Supreme Court’s approach to “procedural” issues through the previous two decades—namely, to reach the merits whenever “reasonably possible.”[16]Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). As the Court has made clear: “We generally hesitate to turn away claims based on waiver or failure to preserve the issue.”[17]First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex. 2017) (citing Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014) It seems that the Court will not turn away new arguments on waiver grounds.

III. How has Footnote Four played out?

Since Greene, the Texas Supreme Court has continued to recognize and enforce the argument-issue distinction.

Indeed, this past term the Texas Supreme Court reaffirmed the argument-issue distinction in Li v. Pemburton County Park Community Association.[18]631 S.W.3d 701 (Tex. 2021). There, the plaintiff—initially proceeding pro se—argued in the trial court that a homeowners’ association had selectively enforced restrictive covenants against her in violation of a fair-dealing provision in the covenants themselves.[19]Id. at 702–03. After losing on summary judgment, she retained counsel and raised two issues on appeal: (1) the association enforced the covenants in an arbitrary, capricious, or discriminatory way under the Property Code, and (2) it had abandoned the allegedly violated covenants.[20]Id. at 703–04. The court of appeals held these arguments waived because “Li did not raise these points in response to the Association’s summary-judgment motion.”[21]Li v. Pemberton Park Cmty. Ass’n, Inc., 2020 WL 1467350, at *4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2020, pet. granted).

The Texas Supreme Court reversed and remanded. The Court framed the question as “whether Li sufficiently preserved the issue of arbitrary enforcement under the Property Code for review by arguing the issue’s substance, although she did not specify the statutory subpart on which she now focuses or couch[es] her argument in the subpart’s terminology.”[22]Li, 631 S.W.3d at 704. Li had sufficiently raised the substantive issue to make new arguments about it. The Court also weighed factors such as Li’s initial pro se status and that the association understood “the substance of Li’s argument.”[23]Id. at 705.

Li shows that Footnote Four’s issue-argument distinction has become a fixture of Texas preservation law, including in summary judgment practice. It also represents a growing body of Texas Supreme Court caselaw applying Footnote Four’s principles:

  • Montelongo v. Abrea, 622 S.W.3d 290, 298 (Tex. 2021): An argument relating to whether an amended petition qualified as a “legal action” under the Texas Citizens Participation Act (TCPA) was not waived despite not being raised in the courts below.
  • Chicago Title Ins. Co. v. Cochran Invs., Inc., 602 S.W.3d 895, 907 n.13 (Tex. 2020): An argument regarding a savings clause in a sales contract was not waived despite being raised for the first time in a motion for rehearing en banc.
  • Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018): Arguments relating to whether statements were based on “community or environmental well-being” under the TCPA were not waived despite being raised for the first time in the court of appeals.
  • Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513 n.5 (Tex. 2017): An argument in favor of the sufficiency of an expert report was considered despite not being presented to the trial court.

For their part, the Texas courts of appeal have often cited to Footnote Four, but other times barred new arguments.[24]Compare Dealer Comput. Servs., Inc. v. DCT Hollister RD, LLC, 574 S.W.3d 610, 624 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Because DCT did not raise its new arguments in its … Continue reading A 2018 opinion of the Fourteenth Court is illustrative. In Methodist Hospital v. Addison, the trial court had denied motions to dismiss medical malpractice claims against Methodist Hospital based on expert reports submitted by the patient.[25]Methodist Hospital v. Addison, 574 S.W.3d 490 506–07 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (Christopher, J., concurring in denial of motion for reconsideration en banc). Methodist appealed, arguing that the expert reports were insufficient because they did not implicate conduct by Methodist Hospital employees.[26]Id.  Not until oral argument did the patient identify or rely on allegations that the student nurse at issue was a Methodist employee.[27]Id.    The Court held that the expert reports sufficed to make out a claim against Methodist based on the allegations.[28]Id.   

Methodist moved for en banc reconsideration contending in part that the patient had waived reliance on the allegations by waiting until oral argument.[29]Id.      Justice Christopher concurred in the denial of Methodist’s motion to explain Greene:

In Greene v. Farmers Insurance Exchange, the Supreme Court of Texas wrote, “We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.” . . . The frequency with which the high court has cited this language lends the Greene principle further emphasis. * * * Greene and its progeny illustrate that a party can make a new argument in support of an existing issue even later than was done in this case[, including] * * * for the first time in a response brief on the merits before the state’s court of last resort.[30]Id. at 507–09.

Justice Christopher stated: “I . . . read Greene and its progeny as authorization to consider a belatedly raised argument” during oral argument.”[31]Id. at 509. Going forward, it will be interesting to see if this view takes hold, and, if it does, whether review of a new argument raised for the first time during oral argument will be discretionary or mandatory.

While the Fourteenth Court has clearly recognized and applied Footnote Four, other courts of appeal have continued to make broad statements that new arguments cannot be raised for the first time on appeal. For instance:

On appeal we may not consider new arguments or legal theories not presented to the trial court because summary judgments may only be granted upon grounds expressly asserted in the trial court by motion or response.[32]Wininger v. U.S. Bank Nat’l Ass’n as Tr. for Holders of Citigroup Mortg. Loan Tr. Inc. Asset-Backed Pass-Through Certificates Series 2005-HE3, No. 05-20-00455-CV, 2021 WL 5121173, at *5 (Tex. … Continue reading

Such statements show that courts are continuing to adapt to Greene’s issue-argument distinction.

IV. Footnote Four diverges from the Fifth Circuit’s approach.

Before closing, it seems important to briefly note that Footnote Four takes a position contrary to that of the Fifth Circuit:

Under this Circuit’s general rule, arguments not raised before the district court are waived and will not be considered on appeal unless the party can demonstrate extraordinary circumstances.[33]French v. Allstate Indem. Co., 637 F.3d 571, 582 (5th Cir. 2011) (quoting AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009); accord LeMaire v. Louisiana Dep’t of Transp. & Dev., … Continue reading

In the Fifth Circuit, a party has forfeited any “argument,”[34]Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021); Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010); LeMaire, 480 F.3d at 387. “issue,”[35]Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022); Webster v. Kijakazi, 19 F.4th 715, 720 (5th Cir. 2021) (quoting Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004) or “theory”[36]Buehler v. Dear, 27 F.4th 969, 991 (5th Cir. 2022) (quoting U.S. Bank Nat’l Ass’n v. Verizon Comm’cns, Inc., 761 F.3d 409, 425 (5th Cir. 2014); Capps v. Humble Oil & Refining Co., 536 F.2d … Continue reading that the party did not raise in the trial court. A cursory mention does not suffice; “to preserve an argument for appeal, the argument (or issue) not only must have been presented to a district court, a litigant also must press and not merely intimate the argument during proceedings before the district court.”[37]Templeton, 28 F.4th at 622; accord United States v. Rodriguez-Leos, 953 F.3d 320, 324 (5th Cir. 2020). Parties may, however, cite new authority[38]E.g., Thomas v. Ameritas Life Ins. Corp., 34 F.4th 395, 402 (5th Cir. 2022). and refine[39]E.g., United States v. Massey, 858 F.3d 380, 382 n.2 (5th Cir. 2017). already raised arguments.

The Fifth Circuit’s rule and Footnote Four embrace different views of what an appeal looks like. The Fifth Circuit’s rule closes the universe of arguments, theories, and issues to those “pressed” before the trial court. Under Footnote Four—by contrast—the parties may more freely urge arguments for why an “issue” should come down in their favor. The Fifth Circuit’s rule prizes efficiency and development of arguments in the trial court; the Texas Supreme Court’s rule favors the full presentation of arguments.

V. Thoughts

In closing, Greene creates interesting preservation questions. “Issues” must be preserved; new “arguments” about them may be made on appeal. Given the seeming difficulty of differentiating “arguments” and “issues” in the heat of trial court practice, the practical suggestion should come as no great surprise. That is, preserve issues and arguments about them in the trial court whenever possible.

References

References
1 446 S.W.3d 761 (Tex. 2014).
2 Id. at 764 n.4 (emphasis in original).
3 Id. at 764.
4 Id.
5 Id.
6 Id. at 764 n.4.
7 Petitioner’s Brief in Reply, Greene v. Farmers Ins. Exch., No. 12-087 (filed June 25, 2013).
8 Greene, 446 S.W.3d at 764 n.4.
9 Issue, Black’s Law Dictionary (11th ed. 2019).
10 Argument, Black’s Law Dictionary.
11 Greene, 446 S.W.3d at 764 n.4.
12 Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (quoting Tex. R. Civ. P. 166a(c) (“‘Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.’”). In Nall, the petitioners had not raised the existence of an issue of material fact that precluded summary judgment; they urged a “procedural issue” only. Id. at 556.
13 Some earlier cases seem to articulate the same general proposition, without expressly distinguishing between issues and arguments. See, e.g., Gonzales v. Sw. Olshan Found. Repair Co., LLC, 400 S.W.3d 52, 55 (Tex. 2013) (permitting an argument that an express warranty superseded an implied warranty because the party had objected at the charge conference that no evidence supported implied warranty).
14 See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979) (“[T]he non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new ground that he can think of, nor can he resurrect grounds that he abandoned at the hearing.”); Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 453 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“We do not consider on appeal grounds not raised in the trial court in opposition to a summary judgment motion.”); Hayes v. Patrick, 45 S.W.3d 110, 115 n. 3 (Tex. App.—Fort Worth 2000, pet. denied) (“[G]rounds not expressly presented to the trial court are not preserved for appeal”); Taylor v. Chubb Lloyd’s Ins. Co. of Tex., No. 05-94-01367-CV, 1995 WL 512820, at *4 (Tex. App.—Dallas Aug. 28, 1995, no pet.) (similar).
15 But see Apache Corp. v. Davis, 627 S.W.3d 324, 334 (Tex. 2021) (“While Apache made that argument in the trial court, it did not make the argument in the court of appeals and has thus failed to preserve it here.”).
16 Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam).
17 First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex. 2017) (citing Nath v. Tex. Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014)
18 631 S.W.3d 701 (Tex. 2021).
19 Id. at 702–03.
20 Id. at 703–04.
21 Li v. Pemberton Park Cmty. Ass’n, Inc., 2020 WL 1467350, at *4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2020, pet. granted).
22 Li, 631 S.W.3d at 704.
23 Id. at 705.
24 Compare Dealer Comput. Servs., Inc. v. DCT Hollister RD, LLC, 574 S.W.3d 610, 624 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Because DCT did not raise its new arguments in its summary-judgment motion, we do not consider them on appeal.”), with Gilbreath v. Horan, — S.W.3d —, 2022 WL 2720680, at *38 n.38 (Tex. App.—Houston [1st Dist.] July 14, 2022, no pet. h.) (“[P]arties may construct new arguments on appeal in support of issues properly before the court.”). Before Greene, the Texas courts of appeals had generally declined to consider new arguments for the first time on appeal. E.g., Bates v. MTH Homes-Texas, L.P., 177 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Abascal v. State Bar of Tex., 1996 WL 729815, at *3 (Tex. App.—San Antonio 1996, no writ).
25 Methodist Hospital v. Addison, 574 S.W.3d 490 506–07 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (Christopher, J., concurring in denial of motion for reconsideration en banc).
26 Id. 
27 Id.   
28 Id.   
29 Id.     
30 Id. at 507–09.
31 Id. at 509.
32 Wininger v. U.S. Bank Nat’l Ass’n as Tr. for Holders of Citigroup Mortg. Loan Tr. Inc. Asset-Backed Pass-Through Certificates Series 2005-HE3, No. 05-20-00455-CV, 2021 WL 5121173, at *5 (Tex. App.—Dallas Nov. 4, 2021, pet. denied) (mem. op.); see also Suniverse, LLC v. Universal Am. Mortg. Co., LLC, No. 09-19-00090-CV, 2021 WL 632603, at *12 (Tex. App.—Beaumont Feb. 18, 2021, pet. denied) (mem. op.)
33 French v. Allstate Indem. Co., 637 F.3d 571, 582 (5th Cir. 2011) (quoting AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th Cir. 2009); accord LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments not raised before the district court are waived and cannot be raised for the first time on appeal.”). A few interesting Fifth Circuit decisions suggest clear error review of arguments raised for the first time on appeal, but these decisions appear to represent a path not taken. See Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996) (“This Court will not address an argument raised by a party for the first time on appeal, even if it concerns the same issue . . . unless it meets the plain error standard.”); U.S. for use of Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir. 1998) (“[A] new argument raised for the first time on appeal, even if it concerns an issue considered by the trial court, will not be addressed unless it meets the plain error standard.”).
34 Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021); Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010); LeMaire, 480 F.3d at 387.
35 Templeton v. Jarmillo, 28 F.4th 618, 622 (5th Cir. 2022); Webster v. Kijakazi, 19 F.4th 715, 720 (5th Cir. 2021) (quoting Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004)
36 Buehler v. Dear, 27 F.4th 969, 991 (5th Cir. 2022) (quoting U.S. Bank Nat’l Ass’n v. Verizon Comm’cns, Inc., 761 F.3d 409, 425 (5th Cir. 2014); Capps v. Humble Oil & Refining Co., 536 F.2d 80, 81 (5th Cir.1976) (“A party cannot raise a new theory on appeal that was not presented to the court below.”)
37 Templeton, 28 F.4th at 622; accord United States v. Rodriguez-Leos, 953 F.3d 320, 324 (5th Cir. 2020).
38 E.g., Thomas v. Ameritas Life Ins. Corp., 34 F.4th 395, 402 (5th Cir. 2022).
39 E.g., United States v. Massey, 858 F.3d 380, 382 n.2 (5th Cir. 2017).