concurring and dissenting.
The outcome of this appeal turns on whether Hearthwood II’s motion for summary judgment is strictly a 166a(e) 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’ claims lacked evidence. Because the majority opinion treats part of the motion as a 166a(i) motion, I respectfully dissent to that part of the opinion.
A Brief Recitation of the Underlying Facts
According to their petition, some, but not all, of Appellants were either leasing or owned condominiums in Hearthwood II Condominiums. Hearthwood II Owners Association is the homeowners association for the complex. Appellants sued Hearth-wood II as a result of injuries they alleged they sustained when a fire erupted in the breaker box of one of the units in the complex. Appellants alleged that faulty wiring inside the breaker box caused the fire. Appellants also alleged that the smoke detectors and fire alarm did not operate to warn them of the fire. Appellants allege that all of them suffered damages because of the fire. In fact, Crystal Brown and her one-year-old daughter, who lived next to the unit in which the fire started, were awakened by a knock on them door by an unidentified woman, by noises from the adjacent unit, and by the screams of other complex dwellers who were trying to warn those residents still in the complex. Arising too late to use the hallway because it was filled with smoke, Crystal ultimately had to drop her one-year-old daughter 30 feet to people below and jump the 30 feet herself. Appellants allege that on the way down, Crystal injured her right leg requiring two surgeries thus far. Because of the damages they allege they suffered in the fire, Appellants sued the homeowners association and the management company for the complex. This appeal involves only the homeowners association.
Hearthwood II’s motion addressed Appellants’ five causes of action plus Hearth-wood II’s affirmative defense. The causes of action alleged and addressed were negligence, breach of contract, malice, “physical and mental anguish,” and exemplary damages. The motion raised as an affirmative defense the Texas Smoke Detector Statute. See Tex. PRop.Code §§ 92.251 — .262. The majority opinion correctly treats the motion as a 166a(c) motion with regard to the affirmative defense and two of the causes of action — negligence and breach of contract. However, the majority incorrectly treats the motion as a no-evidence or 166a(i) motion with regard to malice, “physical and mental anguish,” and exemplary damages.
Requirements for a 166a(i) Motion
For a summary judgment motion to qualify as a 166a(i) motion, the movant must assert three things: (1) the parties have had an adequate opportunity for discovery; (2) a cause of action has no evidence to support it; and (3) there is no evidence of one or more specifically-identified essential elements of the cause of action. Hearthwood II asserted two of the necessary items for a 166a(i) motion, but failed to assert the third. See, e.g., Judge David Hittner and Lynne Liberato, Summary Judgments in Texas, 47 S. Tex. L.Rev. 409, 416 (2006) (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436 *164(Tex.App.-Houston [14th Dist.] 1999, no pet.) for the proposition that a motion merely stating there is no evidence to support the other party’s claim is insufficient). In each instance, Hearthwood II asserted that the parties had an adequate opportunity for discovery (“[a]fter adequate time for discovery”) and that the claims were not supported by any evidence (“[pjlain-tiffs cannot provide any evidence to support their claims for.... ”). In no instance did Hearthwood II specify which elements of the claims lacked any evidence. I will briefly discuss each of these three causes of action.1
The Problems with this Motion
As applicable here, malice may be shown by satisfying the elements of (1) a specific intent (2) to cause substantial injury or harm, see Dietrich v. Goodman, 123 S.W.3d 413, 420 (Tex.App.-Houston [14th Dist.] 2003, no pet.), or malice may be shown by satisfying the elements of (1) an act or omission of the defendant (2) which when viewed objectively from the standpoint of the actor at the time of its occurrence (i) involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.2 Id. Regarding Appellants’ malice allegation, Hearthwood II quoted Appellants’ allegations and then declared that Hearthwood II owed no legal duty to Appellants. Specifically, the motion stated the following: “Without a legal duty, Defendant cannot act with any intention, much less with malice.” This declaration that Hearthwood II owed Appellants no *165legal duty is deficient to qualify as a 166a(i) motion because it failed to identify one or more specific elements that lacked evidence.3
To prove past mental anguish as alleged here, a plaintiff must show: (1) direct evidence of the nature, duration, or severity of the plaintiffs anguish, thus establishing a substantial disruption in the plaintiffs daily routine, or (2) other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995).4 Hearthwood II mentioned none of these elements of mental anguish in its motion for summary judgment.5
Exemplary damages, the last relevant claim of Appellants, has several different elements, depending on the suit. Hearth-wood II quoted the entire sub-section of the statute on exemplary damages then in effect, both relevant and irrelevant portions. Once it set out the entire subsection, Hearthwood II stated the following: “After adequate time for discovery, Defendants [sic — should read “Plaintiffs”] cannot provide any evidence to support their claims for exemplary damages under the statute.” As with the two other claims, Hearthwood II did not specify which element or elements were without evidentiary support.
Lastly, I feel compelled to respond to the claim that Appellant has not asserted a valid ground for reversing the summary judgment and that reversing the case would require us to act on error not asserted in the brief. I agree that Appellants’ brief is not good; in fact, considering what could have been done, it is pretty pathetic.6 But, in spite of that, it sufficiently presents Appellants’ complaint that the summary judgment must be reversed because Hearthwood II failed to attach any evidence to its motion for summary judgment. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970) (outlining that one possible method for briefing points of error — though not required — would be to utilize separate points of error contending the movant failed to carry his burden of proof as to each of the several grounds appellants allege). If one views the motion as a traditional 166a(c) motion, as I do, this complaint sufficiently raises the problem with the motion and judgment. And, Appellants cited appropriate summary judgment case law — with pinpoint citations — discussing the movant’s burden to disprove at least one element of each of Appellants’ causes of action as a matter of law. See Tex.R.App. P. 38.1(e), (h); Malooly, 461 S.W.2d at 121; Wort-*166ham v. Dow Chem. Co., 179 S.W.3d 189, 198 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (explaining that this court will address issues relating to summary judgment so long as appellants provide argument on those particular grounds); see also Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004) (stating that Rule 38.1(h) requires “appropriate citations to authorities” and that we are to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule); cf. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex.1990) (per curiam) (holding that court of appeals erred in raising issue sua sponte when reviewing summary judgment motion because ground for reversal had to be raised either by a point of error or argument). Thus, I disagree that Appellants have not asserted a valid ground for reversal.
Conclusion
In short, Hearthwood II’s motion for summary judgment is not a hybrid motion for summary judgment; it is wholly a traditional 166a(c) motion. Consequently, Hearthwood II was required to present evidence to obtain a summary judgment on malice or “physical and mental anguish” or exemplary damages. See, e.g., Hittner and Liberato, 47 S. Tex. L.Rev. at 477 (stating the well-settled rule that a summary judgment is proper for a defendant as movant only if he proves — as is his burden — that there is no genuine issue of material fact). Because Hearthwood II failed to present evidence, it is not entitled to a summary judgment. More importantly, Appellants’ claim in their appellate brief that Hearth-wood II failed to meet its burden is accurate and is sufficient to preserve error on appeal. In addition, because Hearthwood II failed to meet its burden, Appellants had no responsive burden, making any responsive evidence unnecessary and irrelevant to the outcome of the summary judgment motion.
For these reasons, I concur in that part of the majority opinion reversing the summary judgment as to Hearthwood II’s affirmative defense and the negligence and breach of contract claims, and I dissent to that part of the opinion affirming the summary judgment as to malice, “physical and mental anguish,” and exemplary damages.
. The motion arguably had another defect because it was very misleading. It referred only to the summary judgment standard applied to a traditional summary judgment motion under 166a(c). It recited the standard under a section entitled “Argument and Authorities," discussing only its burden under a traditional summary judgment and never mentioning 166a(i) or Appellants’ burden under a no-evidence motion. The following three sections discussed Hearthwood II’s affirmative defense and the negligence and breach of contract claims without using any language from 166a(i). No new heading appeared before the remaining three sections to announce that a different standard should be used. When filing a hybrid motion, litigants desiring to avoid issues on appeal should provide both opposing counsel and the court with a bright-line demarcation between the traditional summary judgment part of the motion and the no-evidence part of the motion. Hittner and Liberato, 47 S. Tex. L.Rev. at 417 (although the supreme court does not require headings, it is good advocacy to use sub-headings to clearly set forth summary judgment grounds to ensure fair notice).
. The majority correctly points out that malice, mental and physical anguish, and exemplary damages are not causes of action or claims. They are elements of other causes of action and are used to increase damages. True as it may be, this fact is beside the point, which is this. Hearthwood II moved for summary judgment on these elements, the trial court granted the motion as to these elements, and this court affirmed the summary judgment as to these elements, meaning that Appellants would no longer be able to prove them in the trial court. So, even though they technically are not claims, Hearthwood II treated them as claims by moving for summary judgment on them, the trial court treated them as claims by granting a summary judgment on them, and this court treated them as claims by affirming what it interpreted to be a no evidence motion as to them. Each of them has certain components that must be proved before a plaintiff can recover any damages for them. Thus, as I point out in my dissent in connection with each of them, it is not a difficult matter for Hearth-wood II — or any other defendant — to list what components of malice or mental and physical anguish or exemplary damages are unsupported by evidence, and it is not illogical to require a defendant moving for summary judgment to list the components that are unsupported by evidence.
. Although legal duty is an element of negligence, it is not an element of malice.
. Additionally, to prove future mental anguish as alleged here, the plaintiff must prove there is a reasonable probability that mental anguish will be suffered in the future. Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex.App.Houston [1st Dist.] 1992, no writ).
. The entire allegation under this heading was the following:
Plaintiffs allege that Defendant’s actions were "wilful and wanton and resulted proximately in the emotion[al] distress to the mind and emotions” of Plaintiffs.... However, after adequate time for discovery, Plaintiffs cannot provide any evidence to support their claims for physical and mental anguish. Therefore, summary judgment for Defendant would be proper on Plaintiffs’ claims for physical and mental anguish.
.Neither party can be accused of spending too much time on their briefs. In fact, both are written without much acknowledgment or response to the other’s brief, as if they were two ships passing in the night unaware of the other.