                                  Cite as 2013 Ark. App. 457

                   ARKANSAS COURT OF APPEALS
                                       DIVISION II
                                     No. CV-13-113

                                                  Opinion Delivered August 28, 2013

DENISE BROWN, AS                                  APPEAL FROM THE JEFFERSON
ADMINISTRATRIX OF                                 COUNTY CIRCUIT COURT,
THE ESTATE OF                                     SECOND DIVISION
CHARDA THOMAS                                     [CV-3022-588-5-2]
                               APPELLANT
                                                  HONORABLE ROBERT H. WYATT,
V.                                                JR., JUDGE

MARCIE JOHNSON
                                  APPELLEE        AFFIRMED



                            WAYMOND M. BROWN, Judge

          Appellant appeals from the circuit court’s grant of summary judgment to appellee

Marcie Johnson. On appeal, appellant argues that the trial count erred in granting appellee’s

motion for summary judgment despite the presence of genuine issues of material fact. We

affirm.

          On September 26, 2010, appellant’s daughter, Charda Thomas, was a guest in a

residence owned by appellee. A fire ignited in the residence, resulting in the total loss of the

residence and Ms. Thomas’s death. An incident report prepared by first responder and Fire

Chief Harry Hickerson of the Altheimer Volunteer Fire Department (AVFD) indicated that

there were no functioning smoke detectors present in the home.
                                      Cite as 2013 Ark. App. 457

       On September 23, 2011, appellant filed a suit against appellee as administratrix of Ms.

Thomas’s estate, alleging that negligence in maintaining the property in a safe manner led to

Ms. Thomas’s untimely death.

       On July 9, 2012, appellee moved for summary judgment in the case, arguing that

appellant failed to present any evidence sufficient to establish that appellee owed a legal duty

to a guest of her tenant’s invitee and that appellee was not required by statute or contract to

provide smoke detectors in the residence. Appellee asserted in her motion that she had orally

leased the residence in 2003 to Gloria Williams1 shortly after purchasing it and was not

obligated to provide or maintain smoke detectors by that oral lease agreement. Appellee’s

supporting affidavit repeated these statements and added that the residence had functioning

smoke detectors and the AVFD’s incident report was not prepared until the latter part of April

or the early part of May 2011.2

       In her response to appellee’s motion, appellant stated her belief that there were material

issues of fact in dispute with respect to who exercised control of the premises on September

26, 2010, and whether there were smoke detectors. Appellant asserted that Gloria Williams

had moved from the premises earlier in 2010, and that the premises were being occupied at

the time by Myron Johnson, appellee’s son.3 Appellant’s assertions were supported by affidavits


       1
           Gloria Williams is appellee’s mother.
       2
        Nowhere in the record is there an explanation of appellee’s statement that the fire chief’s
incident report was not written until a much later date—only her bare assertion.
       3
         In appellee’s reply to appellant’s response to appellee’s motion for summary judgment,
appellee asserted that Ms. Williams had moved out of the residence before the fire, but she continued
to lease the residence until the fire in September 2010. The record actually reads

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                                      Cite as 2013 Ark. App. 457

from Delton Wright, an acquaintance of appellee and Ms. William, stating that Ms. Williams

no longer lived at the residence and that it was currently occupied by Mr. Johnson, and Fire

Chief Harry Hickerson, stating that he saw no smoke detectors and was told by Mr. Johnson

that there were no functioning smoke detectors at the residence.4

       On October 30, 2012, based on the parties’ pleadings alone, the circuit court granted

appellee’s motion for summary judgment, finding that:

       The record reflects that the tenant occupied the premises pursuant to an oral lease.
       There is no proof in the record, by affidavit or otherwise that the Defendant agreed
       or undertook to maintain the premises. The Court finds that no genuine issue of
       material fact exists regarding the oral lease agreement. The Defendant in this case owed
       no duty to the deceased and cannot be held liable for her injuries and death.5

This timely appeal followed.

       The purpose of summary judgment is not to try the issues, but to determine whether

there are any issues to be tried.6 Summary judgment is to be granted by a trial court if the

pleadings, depositions, answers to interrogatories and admissions on file, together with




“September 2006 in the fire.” It appears to have been a scrivener’s error with appellee meaning
September 2010 because this when the fire occurred.
       4
           Mr. Johnson was present at the time of the fire, but he escaped.
       5
         Appellant filed a motion for reconsideration on November 9, 2012, and an amended motion
for reconsideration on November 15, 2012. The motion was deemed denied due to the circuit
court’s failure to rule on it. Appellant appeals only the October 30, 2012 order granting appellee’s
motion for summary judgment.
       6
         Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, — S.W.3d — (citing Elam v. First Unum Life
Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001); Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11
S.W.3d 531 (2000)).

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                                      Cite as 2013 Ark. App. 457

affidavits, if any, show that there is no genuine issue of material fact and that the moving party

is entitled to judgment as a matter of law.7

       When the movant makes a prima facie showing of entitlement, the respondent must

meet proof with proof by showing a genuine issue as to a material fact.8 On appeal, we need

only decide if summary judgment was appropriate based on whether the evidentiary items

presented by the moving party in support of the motion left a material question of fact

unanswered.9 In making this decision, we view the evidence in a light most favorable to the

party against whom the motion was filed, resolving all doubts and inferences against the

moving party.10 Summary judgment should be denied if reasonable minds might reach

different conclusions from the undisputed facts.11

       Appellant argues that the circuit court erred in granting summary judgment to appellee

because genuine issues of material fact are in issue. We do not reach this argument, as

explained below.

       The essential elements of a cause of action for negligence are that the plaintiff show a

duty owed and a duty breached, and that the defendant’s negligence was a proximate cause




       7
        Id. (citing Ark. R. Civ. P. 56; Pfeifer v. City of Little Rock, 346 Ark. 449, 57 S.W.3d 714
(2001); Mashburn v. Meeker Sharkey Fin. Grp., Inc., 339 Ark. 411, 5 S.W.3d 469 (1999)).
       8
        Grayson & Grayson, P.A. v. Couch, 2012 Ark. App. 20, 12, 388 S.W.3d 96, 104 (citing
Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006)).
       9
           Id.
       10
            Id.
       11
            Id. (citing Worley v. City of Jonesboro, 2011 Ark. App. 594, 385 S.W.3d 908).

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of the plaintiff’s damages.12 The issue of whether a duty exists is always a question of law, not

to be decided by a trier of fact.13 Duty is a concept that arises out of the recognition that

relations between individuals may impose upon one a legal obligation for the other.14 If no

duty of care is owed, summary judgment is appropriate.15 Proximate cause is defined, for

negligence purposes, as that which, in a natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and without which the result would not have

occurred.16 Proximate cause is generally a question of fact, unless the evidence is such that

reasonable minds cannot differ.17

       While arguing that appellee failed to maintain the premises, appellant made no

argument that appellee had a duty to maintain the premises and cited no legal authority on

the same. Furthermore, appellant made no arguments detailing how appellee allegedly

breached her alleged duty to Ms. Thomas or how appellee’s alleged negligence was the cause

of Ms. Thomas’s death.



       12
          Watkins v. Ark. Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, at 13, ___ S.W.3d
___ (citing Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark. App. 424, 278 S.W.3d 587 (2008)).
       13
          Nash v. Landmark Storage, LLC, 102 Ark. App. 182, 186, 283 S.W.3d 605, 608 (2008)
(citing Lacy v. Flake & Kelley Mgmt., Inc., 366 Ark. 365, 235 S.W.3d 894 (2006)).
       14
          Wochos v. Woolverton, 2010 Ark. App. 802, at 16, 378 S.W.3d 280, 289–90 (citing Marlar
v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007)).
       15
            Nash, supra (citing Lacy v. Flake & Kelley Mgmt., Inc., 366 Ark. 365, 235 S.W.3d 894
(2006)).
       16
        Watkins, supra, 2012 Ark. App. at 14 (citing Scott v. Cent. Ark. Nursing Ctrs., Inc., 101 Ark.
App. 424, 278 S.W.3d 587 (2008)).
       17
            Id. (citing Phillippy v. ANB Fin. Servs., LLC, 2011 Ark. App. 639, 386 S.W.3d 553).

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       Appellant stated that the residence had no functional smoke detectors and referenced

the fire chief’s incident report and affidavit to support that statement, but she ignored that the

same report noted the cause of the fire was unknown. Furthermore, appellant proffered no

other act or omission, beyond appellee’s alleged duty to install smoke detectors, by which

appellee’s alleged negligence may have been the cause of the fire that led to Ms. Thomas’s

death. Therefore, even if we were to find that appellee had a duty to appellant, and we do

not, appellant’s claim would fail to meet the threshold necessary to prevent summary

judgment because the record before us alleges, and shows, no breach and no proximate cause.

       Affirmed.

       GLOVER AND WOOD, JJ., agree.

       Marion A. Humphrey, for appellant.

       The Barber Law Firm, by: William H. Edwards and Rick Behring, Jr., for appellee.




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