We All Have Issues: But Can We Make the Argument?

By Justice Evelyn Keyes, First Court of Appeals, Houston  and Angela Spoede, Senior Staff Attorney to Justice Keyes

Lawyers use words like “issue,” “claim,” “argument,” and “question,” freely and usually properly, even if they do not always appreciate the nuanced distinctions between their meanings. Frequently, those nuances are immaterial. But in some circumstances they are crucial. For example, the appellate courts will not review an issue that has been waived, but suppose you failed to make a powerful argument in support of your issue—or worse, you made the wrong argument. Can you make the strong argument on appeal, or is it waived?

So what is the difference between an issue and an argument? For the Supreme Court the distinction, as it relates to questions presented for review in a writ of certiorari, is that between the question presented for review and an argument made to resolve that question. See Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). While the Supreme Court “will not reach questions not fairly included in the petition [for writ of certiorari],” it will review issues—questions or claims—if “passed upon below,” and it will review an argument “fairly embraced within the question set forth in the petition.” As it stated in Lebron, “Our traditional rule is that ‘[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments made below.” Id. at 965.

But note that it is not always true that an argument is preserved just because the broader issue was raised at trial. As the Third Circuit held in United States v. Joseph, 739 F.3d 336 (3d Cir. 2013), lawyers generally must be careful to preserve specific complaints in the trial court by raising not just the issue—such as error in the charge or the erroneous admission of evidence—but the relevant, specific arguments as well. See id. at 341 (holding that to make suppression-of-evidence argument, party must make same argument in district court that he makes on appeal). In Texas state courts too, an appellant must clearly designate alleged error and specifically explain the basis of its complaint in its objection to the charge in the trial court to preserve his complaint of charge error—a general complaint raising the issue of error in the charge is insufficient. See, e.g., TEX. R. CIV. P. 274; Continental Cas. Co. v. Baker, 355 S.W.3d 375, 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Likewise, a party complaining of some other specific action of the trial court, such as the admission of particular evidence, must raise specific arguments or grounds, and the complaint made on appeal must comport with the specific objections raised in the trial court. See, e.g., TEX. R. APP. P. 33.1(a); Houston R.E. Income Props. XV, Ltd. v. Waller Cnty. Appraisal Dist., 123 S.W.3d 859, 862 (Tex. App.—Houston [1st Dist.] 2003, no pet.). On appeal, these are “issues” or “points of error,” but they are more specifically issues raised by something the trial court did, not legal issues or claims presented by the pleadings themselves. Without a proper objection, it is easy to end up waiving an entire issue on appeal by failing to object in the trial court and to present the proper argument.

By contrast, just as the Supreme Court held in Lebron, even a broad request to consider a legal question or claim on appeal is sufficient to allow the courts to address any argument “fairly embraced” within that issue. Texas Rule of Appellate Procedure 38.1(f) provides that the statement of an issue or point presented for review in an appellate brief “will be treated as covering every subsidiary question that is fairly included.”

Note, however, that Rule 38.1(i) still requires “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record,” even as it is silent on whether the argument must comport with those made below. Thus, the resolution of questions raised by the claims made, like the correct construction of a contract or a statute, need not preserve arguments made below, but may make any arguments “fairly embraced” by the issues before the reviewing court. Suppose a lawyer construed a contract improperly below and lost. Neither he nor the reviewing court, which reviews such questions de novo, is bound by the arguments made by the attorney below. See, e.g., Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex. 2006) (holding that “the actual intent of the parties is not what counts [in construing a standard form insurance policy] (as they did not write it), but the ordinary, everyday meaning of the words to the general public”).

Nevertheless, even if an argument advanced to resolve a legal question arising from a party’s claim need not have been made below—as opposed to an argument in support of a party’s objection to a trial court’s action—an appellant seeking to reverse a trial court’s ruling of any sort still must be acutely aware of the issue and all supporting arguments, as courts will generally uphold a trial court’s ruling if it is correct on any legal theory. See, e.g., Guaranty Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (“We must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.”); Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411 (Tex. App.—Dallas 2006, pet. denied) (providing that courts will uphold a trial court’s evidentiary ruling if it is correct under any legal theory).

So, as you consider your next jury charge, motion, or brief, spend some time thinking about the overarching issues that matter most to your client, the nature of those issues, and the various arguments you have at your disposal to obtain the best result possible.