A nonfeasance theory was the thrust of Simons’ entire case at trial.
In his RESPONDENT’S BRIEF Simons simply asserted a new and wholly different theory of liability—misfeasance.
If you had fixed it I would not have commented.
I knew what you meant - you are right that the theory at trial was nonfeasance. But I think my point still stands. He put 2 pages in his brief arguing misfeasance. It's just a long-shot, alternative basis to uphold the jury verdict. It's not abandonment of his original theory; that is what lawyers are supposed to do on appeal. Although you may be right that when he started writing the appeal brief, he realized that the body of existing law supporting the trial judge's ruling was rather thin.
No doubt the false assumptions in your first two sentences serves your purpose.I didn't think I made any assumptions; I just described your posts. Isn't it true that you explained why you believe the law doesn't support a verdict for Conti?