The waiver argument that cannot die

Fans of newspaper comic strips know The Phantom as “the man who cannot die.” Equally resilient is the Texas Supreme Court’s Malooly opinion that requires an appellant to address all bases for affirmance. In re Pepperstone Group Ltd. (a mandamus proceeding, so not technically a Malooly case) involved a situation in which an issue had been raised but not in the proper way to trigger Malooly:

“Although Das’s trial-court reply brief contained an objection that Pepperstone’s response was late under the local rules, he asked only that the trial court not consider Pepperstone’s response in ruling on the motion to compel. Das did not contend that his timeliness objection was an independent ‘ground’ for granting his motion to compel. Accordingly, we reject Das’s argument.”

No. 05-21-00767-CV (Feb. 28, 2022) (mem. op.).