crystal-lynn-brown-individually-and-as-next-friend-of-mikayla-morrison-a ( 2006 )

Affirmed in Part, Reversed and Remanded in Part, and Plurality, Concurring, and Concurring and Dissenting Opinions filed May 30, 2006

Affirmed in Part, Reversed and Remanded in Part, and Plurality, Concurring, and Concurring and Dissenting Opinions filed May 30, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01104-CV

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CRYSTAL LYNN BROWN, INDIVIDUALLY AND AS NEXT FRIEND OF MIKAYLA MORRISON, A MINOR; LEROY ALLEN; DIEDRA DENSON, INDIVIDUALLY AND ON BEHALF OF ADRIAN THOMPSON, JR., A MINOR; TAMMALA BASZILE; AND TAI BASZILE, Appellants

V.

HEARTHWOOD II OWNERS ASSOCIATION, INC., Appellee

On Appeal from the 270th Judicial District Court

Harris County, Texas

Trial Court Cause No. 03-35550

P L U R A L I T Y    O P I N I O N

This appeal arises from a personal injury lawsuit in which the appellants sought damages from appellee Hearthwood II Owners Association, Inc.  (AHearthwood@) for injuries sustained while evacuating a building during a fire.  The trial court granted Hearthwood=s motion for summary judgment, and in a single issue, appellants challenge the order.  We affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

I.  Factual and Procedural Background

On or about April 18, 2002, appellants resided or were present^[1] at 2824 South Bartell in Houston, Texas when a fire broke out.  Appellants allege they sustained physical, mental, or emotional injuries as a result of the fire or the evacuation.  Appellants claim appellee=s negligence, breach of contract, and malice were responsible for their physical and mental anguish and other damages.

According to appellants, Hearthwood owned, possessed, managed or controlled the relevant portions of the premises; however, none of the parties allege that appellants were tenants, or that Hearthwood was the appellants= landlord.

Hearthwood moved for summary judgment against appellants Crystal Lynn Brown, individually and as next friend of Mikayla Morrison, and against Leroy Allen and Diedre Denson, individually and as next friend of Adrian Thompson.^[2]  In its motion, Hearthwood claimed it was entitled to summary judgment on all of appellants= claims because the Texas Smoke Detector Statute^[3] provides the exclusive remedy for tenants^[4] who receive injuries resulting from a fire. Hearthwood also moved for summary judgment on appellants= negligence and malice claims, arguing that, as an owner=s association, it did not owe appellants a duty of care. In addition, Hearthwood asserted that appellants= breach of contract claim could not be sustained because appellants had not proved a contractual relationship with Hearthwood. Finally, Hearthwood argued that after an adequate time for discovery, appellants Acannot provide any evidence to support their claims@ for physical and mental anguish, malice, and exemplary damages.  Appellants responded that Hearthwood had the burden of proof on its defenses.

On November 4, 2004, the trial court granted Hearthwood final summary judgment, ordering that APlaintiffs take nothing from Defendant.@^[5]  The trial court did not specify the grounds for its ruling.

II. Issue Presented

In a single issue, appellants challenge the trial court=s grant of summary judgment, arguing that their uncontroverted evidence raised genuine issues of material fact.  Such a general statement is sufficient to allow argument as to all the possible grounds upon which summary judgment should have been denied.  Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).  We have previously held that a general Malooly issue statement only preserves a complaint if the ground challenged on appeal is supported by argument.  See, e.g., Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502B03 (Tex. App.CHouston [14th Dist.] 2004, pet. denied); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex. App.CCorpus Christi 1998, no pet.) (Malooly allows the non-movant to argue broadly on appeal under a general point of error, but does not relieve an appellant of the burden to challenge the grounds for the summary judgment and to present argument for his case on appeal); see also Plexchem Int=l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930, 930B31 (Tex. 1996) (holding that appellant preserved error on an issue where, in addition to stating a broad point of error asserting the court erred in granting summary judgment, appellant=s brief presented three pages of argument and authorities on the issue).

We therefore review the single argument presented by appellants: that Hearthwood failed to meet its burden to show that no genuine issue of material fact exists and that it was entitled to judgment as a matter of law.   Because a summary judgment movant bears this burden only when moving for traditional summary judgment, not when moving for summary judgment on no-evidence grounds, appellants= argument applies only to the extent that the motion at issue is treated as a traditional motion for summary judgment.

III. Standard of Review

Appellants have consistently treated Hearthwood=s entire motion as one seeking traditional summary judgment pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, while Hearthwood treats the same motion as one seeking a no-evidence summary judgment governed by Rule 166a(i). Each argues the other bore the burden of proof, and each complains the other failed to present competent summary judgment evidence.

In actuality, the motion is a hybrid, seeking traditional summary judgment on some claims and no evidence summary judgment on others.  By limiting their response and appeal to Hearthwood=s failure to satisfy its burden under traditional summary judgment standards, appellants have waived error as to those grounds on which Hearthwood sought a no-evidence summary judgment.  Similarly, by insisting that only appellants were required to produce evidence, Hearthwood has failed to meet its own burden of proof on those claims on which it moved for traditional summary judgment.  Thus, the parties= strict adherence to their respective positions has produced a mixed result.^[6]

 The two forms of summary judgment are distinct and invoke different standards of review.  Lavaca Bay Autoworld, L.L.C. v. Marshall Pontiac Buick Oldsmobile, 103 S.W.3d 650, 653 (Tex. App.CCorpus Christi 2003, no pet.).  Where the nonmovant does not receive notice that a no-evidence summary judgment is sought, we presume that the movant sought traditional summary judgment.  Adams v. Reynolds Tile and Flooring, Inc. 120 S.W.3d 417, 420 (Tex. App.CHouston [14th Dist.] 2003, no pet.). 

Although Hearthwood=s motion did not expressly state whether it sought traditional or no-evidence summary judgment, it cited only to Rule 166a(c) and to cases addressing traditional summary judgment.   Moreover, Hearthwood=s motion did not state there was Ano evidence@ of a specific element of appellant=s negligence or breach of contract causes of action.  Further, because Hearthwood bore the burden of proof on its affirmative defense that appellants= claims were barred by the Texas Smoke Detector Statute, that argument could not have been addressed under Rule 166a(i).^[7]  Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i) (setting forth the different burdens borne by the movant and the nonmovant under each section).  Therefore, we review Hearthwood=s motion for summary judgment regarding the applicability of the Texas Smoke Detector Statute and appellants= breach of contract and negligence claims under the traditional summary judgment standard.

Hearthwood=s motion also alleged that after an adequate time for discovery, appellants could not provide any evidence to support their claims of Aphysical and mental anguish,@ emotional distress,^[8] malice, and for exemplary damages.  The absence of Aany evidence@ is the same as Ano evidence.@  In addition, the assertion that an Aadequate time for discovery@ had passed tracks the language of Rule 166a(i).  By these assertions, Hearthwood unmistakably sought summary judgment on these specific claims pursuant to Rule 166a(i).  Because these arguments do not present a situation in which the nonmovant had no notice that the movant sought summary judgment on no-evidence grounds, the presumption that the entire motion seeks only traditional summary judgment does not apply.

Although Hearthwood=s motion sought traditional summary judgment as to some claims, and no-evidence summary judgment as to others, appellants= sole argument on appeal is that Hearthwood was not entitled to traditional summary judgment.  Appellants do not contend a no-evidence summary judgment on malice, exemplary damages, physical anguish, mental anguish, or emotional distress  was improper or unwarranted.  With nothing presented for our review on these claims, we review the judgment only as it pertains to the Texas Smoke Detector Statute and to appellants= negligence and breach of contract claimsCthe only grounds on which Hearthwood sought traditional summary judgment.^[9]

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Evidence is conclusive only if reasonable people could not differ in their conclusions.  City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant=s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).  We affirm the summary judgment if any of the theories presented to the trial court is sufficient to sustain the judgment.  Id.

A summary judgment must stand or fall on its own merits, and the nonmovant=s failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant=s right.  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).  When a trial court=s order granting summary judgment does not specify the grounds relied upon, we must affirm the summary judgment if any of the summary judgment grounds presented are meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872B73 (Tex. 2000).

III. Analysis

A.      Traditional Summary Judgment Grounds

1.       Texas Smoke Detector Statute

According to Hearthwood, all of appellants= claims are barred by the Texas Smoke Detector Statute. This is an affirmative defense for which Hearthwood bore the burden of proof.  Consequently, Hearthwood was required to prove it was entitled to judgment on this basis by establishing each element of the defense as a matter of law. See Tex. R. Civ. P. 166a cmt.

The Statute Aapplies only to the relationship between landlords and tenants of residential property.@  Tex. Prop. Code Ann. ' 92.002 (Vernon 1995); see also Gilstrap v. Park Lane Town Home Ass=n, 885 S.W.2d 589, 591 (Tex. App.CAmarillo 1994, no pet.) (reversing summary judgment in favor of condominium owners= association where the plaintiffs were not shown to be the association=s tenants).  Hearthwood therefore bore the burden to prove that appellants were its tenants.  Having submitted no evidence on this issue, Hearthwood has failed to meet its burden of proof.  Therefore, we cannot sustain the summary judgment on this basis.

2.       Negligence

Hearthwood=s motion for summary judgment addressed appellants= negligence claims only by stating, APlaintiffs fail to prove each element of their negligence cause of action@ and contending that, as an owner=s association, Hearthwood did not owe appellants a duty of care.   Hearthwood provided no evidentiary or legal support for this argument.

In civil cases, A[n]o doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence . . . .@  Sanders v. Harder, 148 Tex. 593, 598, 227 S.W.2d 206, 209 (1950).  In the civil context, Afailure to prove@ therefore means only that a plaintiff has produced something less than a preponderance of evidence.  It is not the equivalent of Ano evidence.@  Hence, Hearthwood=s claim that appellants Afailed to prove@ their negligence claim cannot be read as asserting a no-evidence basis for summary judgment.  Thus, we must review this assertion under the traditional summary judgment standard and determine whether Hearthwood has proved its entitlement to summary judgment on appellants= negligence claims as a matter of law. 

A movant for traditional summary judgment conclusively negating at least one essential element of a cause of action is entitled to summary judgment on that claim. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).  The only element of negligence addressed by Hearthwood in its motion for summary judgment is the element of duty.

The existence of a legal duty is a question of law for the court to decide Afrom the facts surrounding the occurrence in question.@  Centeq Realty, Inc., v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  Hearthwood presented no evidence to establish the Afacts surrounding the occurrence in question,@ and cited no authority in support of its argument that Aan owners= association@ owes no duty to persons such as appellants.  Hearthwood=s global, unsupported, and conclusory statements do not satisfy the requirements for summary judgment under Rule 166a(c). Because Hearthwood=s bare assertion does not conclusively establish the absence of a duty, this argument cannot support the summary judgment.

3.       Breach of Contract

Hearthwood claimed appellants= breach of contract claim could not be sustained because appellants Ahave failed to prove a contractual relationship@ with Hearthwood.  As discussed above, that language does not convert a motion for traditional summary judgment into a motion for no evidence summary judgment; rather, it was Hearthwood=s burden to conclusively negate at least one element of appellants= breach of contract claims.

Although Hearthwood contends there is no contractual relationship between the parties, it has produced no evidence in support of this contention.^[10]  In the absence of evidence, Hearthwood has not conclusively negated any element of the claim.  Because Hearthwood failed to satisfy its burden under Tex. R. Civ. P. 166a(c), the summary judgment cannot be sustained on this basis.

B.      No-Evidence Summary Judgment Grounds

1.       Existence of a Fact Issue

Appellants argue the evidence they submitted in response to the motion for summary judgment is sufficient to create fact issues, while Hearthwood objects to the same evidence on the grounds that it is unauthenticated hearsay. Appellants respond that Hearthwood has waived its objections by failing to obtain a ruling from the trial court.

Because Hearthwood failed to show it was entitled to traditional summary judgment on appellants= claims of negligence and breach of contract, appellants were not required to produce evidence in support of those claims.^[11]  In contrast, the no-evidence portions of Hearthwood=s motion shifted the burden of proof to appellants to produce evidence supporting their claims of malice, physical anguish, mental anguish, emotional distress, and exemplary damages.^[12]  Despite this shift, appellants have continued to focus their arguments on the inadequacy of Hearthwood=s summary judgment evidence.   

Appellants= entire argument regarding the existence of fact issues is as follows:

Insofar as Appellants excepted and objected to Appellee=s Motion for Final Summary Judgment and the dearth of evidence proffered by it in support thereof, it was incumbent upon Appellee to correct the deficiencies before going forward with same in a hearing thereon.  Since Appellee failed to do so and since Appellants preserved their exceptions and objections by timely filing same, the Trial Court erred in granting Appellee=s Motion for Final Summary Judgment in view of the deficiencies and/or defects contained in said Motion for Final Summary Judgment and in view of Appellants= responses thereto which created genuine issues of material fact.

Appellate briefs must Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  Failure to either cite authority or advance substantive analysis waives the issue on appeal.  Sunnyside Feedyard, L.C. v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.CAmarillo 2003, no pet.).

Appellants have not simply failed to provide substantive analysis; they have failed to identify any fact issue allegedly raised, the claim to which the fact issue applies, or the evidence that raised the fact issue.  As a result, we are unable to evaluate whether the unidentified fact issues are genuine or material.  Appellants= argument regarding the existence of genuine issues of material fact is therefore waived.   

As the nonmovants, appellants were required to produce more than a scintilla of evidence in response to Hearthwood=s 166a(i) motion.  See Ford Motor Co., 135 S.W.3d at 600.  Appellants do not argue on appeal that they have produced more than a scintilla on evidence on each element of their claims of malice, physical anguish, mental anguish, emotional distress, and exemplary damages. For the reasons stated, we affirm the judgment of the trial court only with respect to Hearthwood=s no-evidence summary judgment claims.

IV. Conclusion

Appellants have presented no argument addressing the trial court=s judgment as it pertains to malice, exemplary damages, physical anguish, mental anguish, or emotional distress; therefore, we affirm the judgment as to those claims.  Because appellee Hearthwood has presented no evidence establishing its entitlement to summary judgment on its affirmative defense or on appellants= claims for breach of contract or negligence, we reverse

the summary judgment as to these issues, and remand this case for further proceedings consistent with this opinion.

/s/      Eva M. Guzman

Justice

Judgment rendered and Plurality, Concurring, and Concurring and Dissenting Opinions filed May 30, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman. (Fowler, J. Concurring and Dissenting.  Edelman, J. Concurring.)

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^[1]  Crystal Lynn Brown, Mikayla Morrison, Tammala Baszile, and Tai Baszile are allegedly Aresidents@ of the building, while Leroy Allen, Diedra Denson, and Adrian Thompson, Jr., are alleged only to have been Apresent.@

^[2]  The motion for summary judgment states that Hearthwood Amoves for final summary judgment against Plaintiffs . . . .@  The Aintroduction@ section of the motion states APlaintiffs are Crystal Lynn Brown, individually and as next friend of Mikayla Morrison, a minor; Leroy Allen and Deirdre Denson, individually and as next friend of Adrian Thomas.@  This section omits the names of Tammala and Tai Baszile.  ACrystal Lynn Brown, et al@ responded to the motion.  Appellants have consistently used this designation to refer to all appellants, including Tammala and Tai Baszile.

^[3]  Tex. Prop. Code Ann. ' 92.252(a) (Vernon Supp. 2005).

^[4]  See supra note 1.

^[5]  The order explicitly grants final summary judgment, and does not exclude Tammala and Tai Baszile from the judgment, although Hearthwood had not moved for judgment on their claims.  The trial court clearly intended the order to be treated as final, and it was so treated by all parties.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).  Because the inclusion of Tammala and Tai Baszile in the judgment has not been identified as an issue or briefed by any party on appeal, this opinion treats all appellants as properly included in the motion for summary judgment, just as the parties have done. 

^[6]  Although a party can move for both traditional and no-evidence summary judgment in a single document, it is advisable to use headings to separate the different claims.  See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (noting that such separation is not required, but is Ahelpful to the bench and bar . . . .@).

^[7]  Hearthwood also filed ADefendant=s Rebuttal to Plaintiff=s Response to Defendant=s Motion for Final Summary Judgment,@ in which it argued that appellants produced Ano evidence@ in support of their claims.   The rebuttal did not purport to assert new grounds for summary judgment.  It instead argued that Hearthwood was entitled to summary judgment because appellants failed to respond to the previously filed motion with competent summary judgment evidence.  This argument was based on Hearthwood=s explicit and erroneous assumption that the motion for summary judgment had shifted the burden to appellants Ato produce any and all evidence supporting their causes of action.@  While appellants were required to produce Amore than a scintilla of evidence@ to overcome Hearthwood=s no-evidence grounds for summary judgment, they were not required to respond to any of Hearthwood=s  grounds for traditional summary judgment unless Hearthwood first established its entitlement to summary judgment on those issues as a matter of law.  Compare Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004) (nonmovant must produce more than a scintilla of evidence in response to a 166a(i) motion) with  Tex. R. Civ. P. 166a cmt. (AParagraph (i) does not apply to ordinary motions for summary judgment under paragraphs (a) or (b), in which the movant must prove it is entitled to judgment by establishing each element of its own claim or defense as a matter of law@) and City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (AThe trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non‑movant when the movant=s summary judgment proof is legally insufficient.@).

^[8]  All parties have included Aemotional distress to the minds and emotions@ of appellants within the category of Aphysical and mental anguish.@

^[9]  The concurring and dissenting opinion would treat the entire motion as a traditional motion for summary judgment on the grounds that the Ano-evidence@ portions of the motion were defective for failure to specify the elements or evidentiary components of appellants= physical anguish, mental anguish, malice, and exemplary damages causes of action.  This issue, if raised by appellants, would require the court to determine whether physical anguish, mental anguish, malice, and exemplary damages are Aclaims@ consisting of elements, or are instead types of damages used to prove or enhance the damage Aelement@ of other causes of action.  See, e.g.,  Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294, 298 (Tex. App.CEastland 1999, no pet.) (malice and injury are not elements of a cause of action for the purposes of Tex. R. Civ. P. 166a(i), but are instead Aevidentiary components@ that may prove an element of a cause of action); Kawecki v. Int=l Bank of Commerce, No. 14-01-01025, 2003 WL 21782345, *6 (Tex. App.CHouston [14th Dist.] July 31, 2003, no pet.) (mem. op.) (not designated for publication) (motion alleging there is no evidence of mental anguish shifts burden to non-movant to produce evidence); Boyles v. Kerr, 855 S.W.2d 593, 594 (A[a] claimant may recover mental anguish damages only in connection with defendant=s breach of some other legal duty@) (Tex. 1993); Everett v. TK‑Taito, L.L.C., 178 S.W.3d 844, 860 (Tex. App.CFort Worth 2005, no pet.) (AAn exemplary damages claim will not stand alone; it depends on some pleaded liability claim.@); Tex. Civ. Prac. & Rem. Code Ann. ' 41.003 (Vernon 2003) (malice is defined by statute as an element of exemplary damages). However, this issue was not presented to the trial court or briefed on appeal, and is therefore waived.  See Tex. R. App. P. 33.1, 38.1(h); Williamson v. State Farm Lloyds, 76 S.W.3d 64, 67 (Tex. App.CHouston [14th Dist.] 2002, no pet.).

^[10]  In order to meet its burden of proof, Hearthwood was required to prove a negativeCthe absence of a contractCby evidence such as affidavit testimony.  See U.S. Bank, N.A. v. Prestige Ford Garland Ltd. P=ship, 170 S.W.3d 272, 277 (Tex. App.CDallas 2005, no pet.) (considering summary judgment evidence, including an affidavit testifying to the absence of a contract).

^[11]  See supra note 7.

^[12]  Appellants do not argue that Hearthwood=s no-evidence arguments lacked the required specificity.  See Tex. R. Civ. P. 166a(i) (a no-evidence summary judgment must identify one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial and for which there is no evidence).