Reversed and Remanded in Part, Vacated and Dismissed in Part, and
Majority and Concurring Opinions filed September 17, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00184-CV

                       GEORGE E. HILBURN, Appellant
                                         V.
               STORAGE TRUST PROPERTIES, LP, Appellee

                    On Appeal from the 189th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-36631


                      CONCURRING OPINION

      The summary-judgment evidence does not prove as a matter of law that
appellee/defendant Storage Trust Properties, L.P. is entitled to judgment on any of
the traditional grounds in its summary-judgment motion. No justiciable
controversy exists between the parties as to appellant/plaintiff George E. Hilburn’s
request for declaratory relief.    Therefore, I join this court’s judgment, but I
respectfully decline to join the majority opinion.
         Storage Trust obtained a traditional summary judgment based on a ground
under paragraph 10 of each of the lease agreements, which provides in pertinent
part:

         RIGHT TO ENTER, INSPECT AND REPAIR PREMISES.
         Occupant shall grant Owner, Owner’s Agents or the representatives of
         any governmental authority, including police and fire officials, access
         to the Premises upon three (3) days prior written notice to Occupant.
         In the event Occupant shall not grant access to the Premises as
         required, or in the event of an emergency or upon default of any of
         Occupant’s obligations under this Lease/Rental Agreement, Owner,
         Owner’s Agents or the representative of any governmental authority
         shall have the right, but not the obligation, to remove Occupant’s
         locks and enter the Premises for the purpose of examining the
         Premises or the contents thereof or for the purpose of making repairs
         or alterations to the Premises and taking such other action as may
         be necessary or appropriate to preserve the Premises or to comply
         with applicable law including any applicable local, state or federal
         law or regulation governing hazardous or toxic substance, [sic]
         material, or waste, or to enforce any of Owner’s rights. 1
         According to Storage Trust, the flooding event constituted an emergency
under the lease agreements, which allowed Storage Trust to enter the storage units
and dispose of Hilburn’s “hazardous property due to mold.” Presuming for the
sake of argument that the flooding event constituted an emergency under paragraph
10 of the lease agreements, the summary-judgment evidence does not prove as a
matter of law that disposing of Hilburn’s property was necessary or appropriate to
preserve the Premises or to comply with applicable law. Thus, the trial court erred
in granting summary judgment on the ground based on paragraph 10.

         Storage Trust’s grounds based on the alleged damages cap and Hilburn’s
alleged inability to recover attorney’s fees would not support summary judgment
as to any claim, even if these grounds had merit.

1
    Emphasis added.

                                           2
          As to the economic-loss-rule ground Hilburn has not identified any
provision of the lease agreements that Storage Trust allegedly breached. Storage
Trust’s alleged duty not to convert Hilburn’s property is independent of Storage
Trust’s obligations under the lease agreements.2 Presuming, without deciding, that
Hilburn’s “claims” for waiver, estoppel, promissory estoppel, and violations of the
Texas Deceptive Trade Practices Act are independent “claims” and that they have
merit, Storage Trust’s alleged duty under each of these “claims” is independent of
Storage Trust’s obligations under the lease agreements.3 Therefore, the trial court
erred in granting summary judgment based on the economic-loss-rule ground.

          The record reflects that no justiciable controversy exists between the parties
as to Hilburn’s request for declaratory relief. So, the trial court lacked jurisdiction
over this request. Because of this lack of jurisdiction, I concur in this court’s
judgment vacating the part of the trial court’s judgment dealing with the request for
declaratory relief and dismissing this appeal to the extent the appeal deals with this
request. For the reasons stated above, I concur in the court’s judgment reversing
and remanding the remainder of the case.




                                          /s/       Kem Thompson Frost
                                                    Chief Justice


Panel consists of Chief Justice Frost and Justices Bourliot and Poissant. (Bourliot,
majority).

2
 See Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718–19 (Tex.
2014).
3
    See id.



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