is waived. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex.1991). Accordingly, our question is whether the statute of frauds bars Malone’s breach-of-contract claim. Malone argues that the statute of frauds does not apply because the sale was between merchants. See Tex. Bus. & Com.Code Ann. § 2.201(b) (Vernon 1994). However, Malone did not expressly raise his status as a “merchant” being a material fact issue in his response to DuPont’s motion for summary judgment. We cannot consider this argument as grounds for reversal of the trial court’s summary judgment. See Tex.R. Civ. P. 166a(c); State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986); see, e.g., Holmes v. Dallas Int'l Bank, 718 S.W.2d 59, 60 (Tex.App. — Dallas 1986, writ ref'd n.r.e.) (<HOLDING>). The statute of frauds provides that an
holding that the mere existence of a scintilla of evidence is insufficient to create a dispute of fact that is genuine holding response stating attached evidence demonstrated genuine fact issues insufficient to raise issue holding that where affidavits raise a genuine issue of material fact as to a brady claim an evidentiary hearing should be conducted holding that an eeoc reasonable cause determination letter did not constitute evidence precluding summary judgment when the other evidence was insufficient to create a genuine issue of material fact holding that when there are no genuine issues of material fact summary judgment is appropriate