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Click here for the full text of this decision FACTS:The appellants were present at 2824 South Bartell in Houston 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. In its motion, Hearthwood claimed it was entitled to summary judgment on all of appellants’ claims because the Texas Smoke Detector Statute provides the exclusive remedy for tenants 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 “cannot 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. The trial court granted Hearthwood final summary judgment, ordering that “Plaintiffs take nothing from Defendant.” The trial court did not specify the grounds for its ruling. HOLDING:The appellants presented no argument addressing the trial court’s judgment as it pertains to malice, exemplary damages, physical anguish, mental anguish, or emotional distress. The court affirms 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, the court reverses the summary judgment as to these issues, and remands this case for further proceedings consistent with this opinion. 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. The court reviews 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 presented no evidence to establish the “facts surrounding the occurrence in question,” and cited no authority in support of its argument that “an 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 Texas Rule of Civil Procedure 166a(c). Because Hearthwood’s bare assertion does not conclusively establish the absence of a duty, this argument cannot support the summary judgment. Hearthwood claimed appellants’ breach of contract claim could not be sustained because appellants “have failed to prove a contractual relationship” with Hearthwood. 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. In the absence of evidence, Hearthwood has not conclusively negated any element of the claim. Appellants’ argument regarding the existence of genuine issues of material fact is waived. “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.” OPINION:Guzman, J.; Fowler, Edelman and Guzman, J.J. (Fowler, J. Concurring and Dissenting. Edelman, J. Concurring.) CONCURRENCE AND DISSENT:Fowler, J. “The outcome of this appeal turns on whether Hearthwood II’s motion for summary judgment is strictly a 166a(c) motion for summary judgment or a hybrid motion based on both 166a(c) and 166a(i). In my opinion, the entire motion must be treated as a 166a(c) motion because Hearthwood II failed to state which elements of appellants’ claimslacked evidence. Because the majority opinion treats part of the motion as a 166a(i) motion, I respectfully dissent to that part of the opinion.” CONCURRENCE:Edelman, J. “[W]hat if an appellant fails to assert on appeal a valid ground for reversing the summary judgment? It is . . . well established that a summary judgment may not be reversed on a ground of error not asserted in the appellant’s brief. Yet, taken in the most literal sense, the standards . . . would suggest that an appeals court not only may conduct a de novo review and reverse based on that ground, but is arguably obligated to do so (despite that it would require a court to abandon its position of impartiality); otherwise, what is meant by framing the standard as a de novo review? “This case embodies that apparent conflict in that the concurring and dissenting opinion advocates reversing Hearthwood’s summary judgment based on a lack of specificity in its motion for summary judgment that was not raised in appellants’ brief. Until this uncertainty is resolved, appeals courts will seemingly remain at liberty to treat similarly situated litigants differently, producing a lack of uniformity in the law, and, thus, on this aspect, no real law at all.”

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