Affirmed in part, Reversed and Remanded in part, and Majority, 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. 2003-35550
C O N C U R R I N G O P I N I O N
It is well established that: (1) we review a summary judgment de novo; and (2) (although not applicable to this case) when both parties move for summary judgment on the same issues, and the trial court grants one motion and denies the other, the reviewing court considers the summary judgment evidence presented by both sides, determines all
questions presented, and if the reviewing court determines that the trial court erred, renders the judgment the trial court should have rendered. See, e.g., Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
However, what if an appellant fails to assert on appeal a valid ground for reversing the summary judgment? It is also well established that a summary judgment may not be reversed on a ground of error not asserted in the appellant=s brief.[1] Yet, taken in the most literal sense, the standards recited in the preceding paragraph 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.[2] 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.
/s/ Richard H. Edelman
Justice
Judgment rendered and Plurality, Concurring, and Concurring and Dissenting Opinions filed May 30, 2006.
Panel consists of Justices Fowler, Edelman, and Guzman. (Guzman, J. Plurality. Fowler J. Concurring and Dissenting.)
[1] See, e.g., Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001); Bonham State Bank v. Beadle, 907 S.W.2d 465, 470 (Tex. 1995); Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209 (Tex. 1990); Central Educ. Agency v. Burke, 711 S.W.2d 7, 9 (Tex. 1986).
[2] To elude the unassigned error constraint with regard to a no-evidence motion for summary judgment, an appeals court might take the position that the motion=s failure to fulfill the specificity requirements for such a motion transforms it into a traditional motion and then reverse it for its failure to sustain the higher standard of proof applicable thereto.