Briefing, Briefly

Two statements in Cooper v. TCH Altera AHCC, LLC capture key concepts in appellate waiver for Texas practice today:

1. Briefing waiver. “Because briefing waiver is disfavored, we will construe appellants’ brief to also challenge the declaratory relief to the extent reasonably possible. See Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (per curiam) (“An appellate court should consider the parties’ arguments supporting each point of error and not merely the wording of the points.”).
2. Malooly waiver. “Altera raised multiple grounds attacking appellants’ breach of contract counterclaims, including a ground that appellants could not show that a condition precedent—approval of appellants’ fee by the City of Allen—had been satisfied. Appellants do not address this condition precedent argument in their appellate brief, so we must affirm the judgment on their breach-of-contract counterclaims. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226–27 ‘(Tex. 2022); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).”