Affirmed in Part and Reversed and Remanded in Part and Opinion filed
April 28, 2020.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00436-CV

                        HOWARD PURVIS, Appellant
                                       V.
     STONEY CREEK COMMUNITY ASSOCIATION, INC., Appellee

                   On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2017-33641


                                OPINION
      This appeal arises from a dispute between a homeowner and his
homeowners’ association over alleged damage to the homeowner’s property
caused by the alleged failure of a drainage pipe. The homeowner sued the
association alleging that by failing to maintain the drainage pipe the association
breached its contractual obligations under a declaration of covenants and
restrictions and that the homeowner’s property suffered damage as a result. The
homeowner asserted claims for breach of contract and negligence. The trial court
granted the association’s no-evidence motion for summary judgment. We affirm
as to the negligence claim and reverse and remand as to the contract claim.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant/plaintiff Howard Purvis has owned Lot 18 of the Stoney Creek
subdivision (the “Subdivision”) in Houston, Texas since 1979. Purvis has lived in
a townhome on that lot since that time.         The Subdivision includes 36 lots
surrounding a single street that runs north and south. A “feeder bayou” runs
directly parallel to the west of the Subdivision. The feeder bayou flows south and
eventually flows into Buffalo Bayou. Lot 17 adjoins Lot 18 to the east, and the two
lots are the northernmost lots in the Subdivision. The two townhomes on these two
lots are the only ones in the Subdivision that face south rather than east or west. A
four-foot wide drainage pipe runs through the northern extreme of Lots 17 and 18,
ending at the feeder bayou (the “Drainage Pipe”).          The summary-judgment
evidence reflects that, “[a]ccording to [Purvis], the [Drainage Pipe] had been in
place for approximately 10-15 years before the construction of the [Subdivision].”

      Purvis asserts that no one maintained the Drainage Pipe and that some time
before Houston’s Memorial Day Flood in May 2015, a large soil mass blocked the
flow of water in the Drainage Pipe about 30 to 35 feet from the feeder bayou.
Purvis claims that during the heavy rainfall that led to the Memorial Day Flood, the
Drainage Pipe collapsed, washing away large amounts of soil from Lot 18, and
resulting in structural damage to the back of Purvis’s home as well as damage to
Purvis’s retaining wall, sidewalk, concrete patio, deck, and balcony.

      Appellee/defendant Stoney Creek Community Association, Inc. (the
“Association”) is the homeowners’ association for the Subdivision.            Palmas
Properties, as Declarant, executed a “Declaration of Covenants and Restrictions for
                                         2
Stoney Creek” (the “Declaration”). Purvis alleges that under the Declaration, the
Association had a duty to maintain the Drainage Pipe.

      Purvis filed suit against the Association asserting claims for breach of
contract and negligence. Purvis alleges that under the Declaration the Association
had a duty to maintain the Drainage Pipe and that the Association breached this
duty resulting in damages to Purvis.

      The Association filed a traditional motion for summary judgment asserting
various grounds. The Association also filed a no-evidence summary-judgment
motion asserting that (1) there is no evidence of the breach-of-contract element of
Purvis’s contract claim and (2) there is no evidence of the duty element of Purvis’s
negligence claim. The trial court denied the traditional motion but granted the no-
evidence motion and rendered a final judgment in favor of the Association.

                              II. ISSUES AND ANALYSIS

   A. Is the existence of a duty under the Declaration at issue in this appeal?

      Under his second appellate issue, Purvis asserts that the question of whether
the Declaration imposed a contractual duty on the Association to maintain the
Drainage Pipe is not before this court because the Association challenged only the
breach-of-contract element. Purvis contends that the only issue on appeal as to the
contract claim is whether the summary-judgment evidence raises a genuine fact
issue as to whether the Association failed to maintain the Drainage Pipe.
According to Purvis, this court must presume that the Association had a contractual
duty under the Declaration to maintain the Drainage Pipe.

      The essential elements of a breach-of-contract claim are (1) the existence of
a valid contract; (2) performance or tendered performance by the plaintiff; (3)
breach of the contract by the defendant; and (4) damages sustained by the plaintiff

                                         3
as a result of the breach. Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied). To assert a proper no-evidence summary-
judgment ground the movant must challenge one or more essential elements of a
claim or defense on which the adverse party would have the burden of proof at
trial. See Tex. R. Civ. P. 166a(i); Lamell v. OneWest Bank, FSB, L.P., 485 S.W.3d
53, 58 (Tex. App.–Houston [14th Dist.] 2015, pet. denied). The third essential
element of a breach-of-contract claim encompasses both the contractual duty and
the breach of that duty. See Aguiar, 167 S.W.3d at 450. In this context, the
Association’s no-evidence ground challenging this third element shifted the burden
to Purvis to produce summary-judgment evidence raising a genuine fact issue as to
whether the Association breached the contract.       See B.C. v. Steak N Shake
Operations, Inc., —S..3d—,—, 2020 WL 1482586, at *2 (Tex. 2020); Lamell, 485
S.W.3d at 58; Aguiar, 167 S.W.3d at 450; Udcoff v. Castille, No. 11-04-00274-CV,
2006 WL 2075244, at *6–8 (Tex. App.—Eastland Jul. 27, 2006, no pet.) (affirming
summary judgment based on ground that there was no evidence of breach of
contract because plaintiff did not submit evidence of any contractual duty that the
defendant allegedly breached) (mem. op.). To do so would require summary-
judgment evidence raising at least a genuine fact issue as to whether the
Association had a contractual duty and as to whether the Association breached that
duty. See B.C., —S.W.3d at —, 2020 WL 1482586, at *2; Lamell, 485 S.W.3d at
58; Aguiar, 167 S.W.3d at 450; Udcoff, 2006 WL 2075244, at *6–8.

      Purvis cites Chrismon v. Brown, a case in involving a no-evidence challenge
to negligence claims. See 246 S.W.3d 102, 114, n.12 (Tex. App.—Houston [14th
Dist.] 2007, no pet.).    The essential elements of a negligence claim are (1) a
negligence duty, (2) a breach of that duty, and (3) damages proximately caused by
the breach of the duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d


                                        4
472, 478 (Tex. 1995). Thus, if a defendant asserts that there is no evidence only as
to the second element of a negligence claim, the court should presume that a
negligence duty exists and then determine if the summary-judgment evidence
raises a genuine fact issue as to whether the defendant breached that duty. See
Chrismon, 246 S.W.3d at 114, n.12. Because the third essential element of a
breach-of-contract claim encompasses both the contractual duty and the breach of
that duty, this part of Chrismon is not on point in the context of a no-evidence
challenge to a breach-of-contract claim. See Chrismon, 246 S.W.3d at 114, n.12;
Aguiar, 167 S.W.3d at 450. So, we conclude that the Association’s no-evidence
ground shifted the burden to Purvis to produce summary-judgment evidence
raising a genuine fact issue as to whether the Association had a contractual duty as
well as whether the Association breached that duty. See B.C., —S.W.3d at —,
2020 WL 1482586, at *2; Lamell, 485 S.W.3d at 58; Aguiar, 167 S.W.3d at 450;
Udcoff, 2006 WL 2075244, at *6–8.

   B. Did the summary-judgment evidence raise a genuine fact issue as to
      whether the Association had a duty to maintain the Drainage Pipe?
      Purvis asserts that the summary-judgment evidence at least raises a genuine
fact issue as to whether the Association had a duty under the Declaration to
maintain the Drainage Pipe. In reviewing a no-evidence summary judgment, we
ascertain whether the nonmovant pointed out summary-judgment evidence raising
a genuine issue of fact as to the essential elements attacked in the no-evidence
motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–08 (Tex.
2002). In our de novo review of a trial court’s summary judgment, we consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if

                                         5
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).
      Regardless of whether the parts of the Declaration that we are construing
amount to restrictive covenants, we apply the same contract-interpretation
principles to the Declaration. See Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.
1998). In construing the Declaration, our primary objective is to ascertain and give
effect to the intentions of the parties as expressed in the Declaration’s text. See
Kelley–Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998).
To determine the parties’ true intentions, we examine the entire Declaration in an
effort to harmonize and give effect to all of its provisions so that none will be
rendered meaningless. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995
S.W.2d 647, 652 (Tex. 1999). Whether the Declaration is ambiguous is a question
of law for this court. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121
(Tex. 1996). Ambiguity does not arise simply because the parties offer conflicting
interpretations. See Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157
(Tex. 2003). The Declaration is ambiguous if its meaning is uncertain and doubtful
or is reasonably susceptible to more than one interpretation. See Heritage Res.,
Inc., 939 S.W.2d at 121. But, if the Declaration is worded so that it can be given a
certain or definite legal meaning or interpretation, it is unambiguous, and we
construe it as a matter of law. See Am. Mfrs. Mut. Ins. Co., 124 S.W.3d at 157.

      1. Did the Association have a duty to maintain the Drainage Pipe as
         a matter of law because the Drainage Pipe is a “Common
         Property” under article I, section (e) of the Declaration?
      Purvis asserts that under the Declaration’s unambiguous language, the
Association had a duty to maintain the Drainage Pipe as a matter of law because
the Drainage Pipe falls under the definition of “Common Properties” in article I,

                                          6
section (e) of the Declaration. Article IV, section 2 of the Declaration 1 states that
“[t]he purpose of the Association in general shall be to provide for and promote the
health, safety and welfare of the [homeowners who are members of the
Association] [and]. . . to provide for the maintenance, repair, preservation, upkeep,
and protection of the Common Properties and Facilities in Stoney Creek . . . .”
Under article X, section 2, “the Association, as a common expense of all Owners,
shall perpetually care for, maintain and keep in good repair the Common
Properties and Facilities in [the Subdivision] and all parts thereof, including but
not limited to . . . other improvements and the utility facilities owned by the
Association, . . . .”2 Under the Declaration’s plain wording, the Association
shoulders the duty to maintain and keep in good repair the Common Properties and
the Common Facilities. Purvis asserts various arguments as to why the Drainage
Pipe falls within the definition of “Common Properties.”

          Under article I, section (e), “Common Properties” means “all those areas of
land within the Properties as shown on the Subdivision Plat, except the Lots and
the streets not designated as Private Streets or Private Drives, together with such
other property as the Association may, at any time, acquire by purchase or
otherwise . . .”3 Under article I, section (b), “the Properties” means “the properties
described in Article III hereof, which are subject to this Declaration and any
Supplemental Declaration.” Article III says that “the Properties” means all of the
real property in the Subdivision. Under article I, section (d), “Lots” means “the
thirty-six (36) enumerated Lots shown on the Subdivision Plat.

          The summary-judgment evidence shows that the Drainage Pipe lies in part
1
  For ease of reference, unless otherwise specified, all references to an article or a section are to
that part of the Declaration.
2
    (italics added).
3
    (italics added).

                                                 7
of Lot 17 and part of Lot 18. The summary-judgment evidence suggests that the
Drainage Pipe may begin on land to the east of Lot 17. Under the Declaration’s
unambiguous text, Lots 17 and 18 and the land to the east of Lot 17 are not part of
the “Common Properties.” Lots 17 and 18 are two of the 36 Lots expressly
excepted from the definition of “Common Properties.” The summary-judgment
evidence conclusively proves that the land to the east of Lot 17 sits outside of the
Subdivision, is not part of “the Properties,” and so does not fall within the
definition of the “Common Properties.”

       Purvis asserts that the definition of “Common Properties” does not expressly
exclude utilities that cross multiple lots and that the definition does not expressly
exclude utility easements. Though Purvis is correct that the definition does not
contain either of these express exclusions, the absence of such exclusions does not
mean that the Drainage Pipe falls within the plain meaning of the words used in
this definition. The definition covers all real property within the Subdivision
except for the 36 Lots and the streets not designated as Private Streets or Private
Drives, together with such other property as the Association may, at any time,
acquire by purchase or otherwise.4 To the extent the Drainage Pipe has become
part of the real property in which it lies, the Drainage Pipe is part of Lot 17, Lot 18,
and possibly real property to the east that lies outside of the Subdivision. No
summary-judgment evidence shows that the Association “acquire[d]” the Drainage
Pipe “by purchase or otherwise.” Because no summary-judgment evidence raises a
genuine fact issue as to whether the Drainage Pipe falls within the plain text of the
definition of “Common Properties,” the absence of express exclusions covering the
Drainage Pipe does not bring the Drainage Pipe within the scope of this definition.

4
  The Declaration notes that this property is subject to certain limitations, restrictions, and
burdens, but that part of the definition does not add any property to the scope of the definition
and is not relevant to our analysis.

                                               8
         Purvis states in his summary-judgment affidavit that he thinks the Drainage
Pipe falls within the definition of “Common Properties” because it crosses Lots 17
and 18. Purvis’s legal conclusion is incompetent to raise a genuine fact issue
precluding summary judgment. See HighMount Explor. & Prod., LLC v. Harrison
Interests, Ltd., 503 S.W.3d 557, 569 (Tex. App.—Houston [14th Dist.] 2016, no
pet.).

         Purvis asserts that the following language in the definition of “Common
Properties” suggests that the drafters of the Declaration intended to include utility
easements in the definition: “together with such other property as the Association
may, at any time, acquire by purchase or otherwise.” This language does not
specifically refer to utility easements; rather, it refers generally to other property
that the Association acquires. Thus, presuming that this language applies to utility
easements, it would apply only to utility easements acquired by the Association.
Because no summary-judgment evidence shows that the Association “acquire[d]”
the Drainage Pipe, Purvis’s argument does not show that a fact issue exists as to
whether the Drainage Pipe falls within the definition of “Common Properties.”

         Purvis also cites article VIII, section 5, which provides that “[s]torm sewers
in the Common Property for the drainage of surface waters shall be owned,
operated, maintained, and repaired by the Association.” The Declaration contains
no separate definition of the singular “Common Property,” and under the
document’s plain text, this term refers to property that falls within the scope of the
definition of “Common Properties.” Presuming that the Drainage Pipe is a “storm
sewer,” no summary-judgment evidence shows that the duty in article VIII, section
5 applies to the Drainage Pipe because no summary-judgment evidence shows that
the Drainage Pipe is part of the “Common Property” or “Common Properties.”
Purvis agrees that the duty in this section applies only to storm sewers in the

                                            9
Common Property. He appears to cite this provision as further support for the
proposition that the Association would have a duty to maintain the Drainage Pipe if
the pipe fell within the definition of “Common Properties.” Nothing in article
VIII, section 5 reflects an intent that storm sewers not in the “Common Property”
or “Common Properties” should be treated as if they were in the “Common
Property” or “Common Properties.” Thus, this provision does not show that the
Drainage Pipe falls within the definition of “Common Properties.”

      Under the applicable standard of review, the summary-judgment evidence
does not raise a genuine fact issue as to whether the Drainage Pipe falls within the
Declaration’s unambiguous definition of “Common Properties.” See HighMount
Explor. & Prod., LLC, 503 S.W.3d at 565–70.

      2. Did the Association have a duty to maintain the Drainage Pipe
         under sections 1, 3, or 5 of article II?
      Purvis also relies upon sections 1, 3, and 5 of article II to show that
the Association had a duty to maintain the Drainage Pipe. Purvis cites the
part of section 1 providing that “all grants and dedications of easements and
related rights heretofore made by the Declarant and Declarant’s
predecessors in title affecting the Properties are incorporated herein by
reference and made a part of this Declaration for all purposes, . . . .” As
Purvis notes, according to this provision, pre-existing easements remain in
force. But, nothing in section 1 imposes a duty on the Association to
maintain the Drainage Pipe or makes the Drainage Pipe fall within the
definition of “Common Properties” or “Common Facilities.”

      Section 3 provides that “[t]itle to any Lot conveyed by contract, deed
or other conveyance shall not be held or construed in any event to include
the title to any roadways or any drainage, water, gas, sewer, storm sewer,


                                        10
electric light, electric power, telegraph or telephone way or any pipes, lines,
poles or conduits on or in any utility facility or appurtenance thereto
constructed by or under Declarant or its agents through, along or upon any
Lot or any part thereof to serve said Lot, or any other portion of the
Properties.”5 Under this section, the Declarant expressly reserved the “right
to maintain, repair, sell, or lease such appurtenances . . . .” Under the
unambiguous language of this provision, the Declarant reserved title and the
right to maintain and repair only as to various items “constructed by or under
Declarant or its agents.” The summary-judgment evidence does not raise a
fact issue as to whether the Drainage Pipe was “constructed by or under
Declarant or its agents” and thus may fall within the scope of article II,
section 3.

          Purvis also relies upon article II, section 5, but that section only creates an
easement of ingress and egress for the Declarant to install, replace, repair, and
maintain “all utilities, including, but not limited to . . . sewer . . .” Presuming for
the sake of argument that the Drainage Pipe is a utility, giving the Declarant a
general easement to access all utilities if the Declarant should choose to install,
replace, repair, or maintain a utility does not impose a duty on the Declarant to
maintain any utility.
          Under the applicable standard of review, we conclude that the summary-
judgment evidence does not raise a genuine fact issue as to whether the
Association had a duty to maintain the Drainage Pipe based on section 1, 3, or 5 of
article II, or as to whether any of these sections cause the Drainage Pipe to fall
within the scope of the definition of “Common Properties” or “Common
Facilities.” See HighMount Explor. & Prod., LLC, 503 S.W.3d at 565–70.

5
    (italics added).

                                             11
      3. Did the Association have a duty to maintain the Drainage Pipe
         because the Drainage Pipe falls within the definition of
         “Common Facilities” under article I, section (f)?
      Purvis asserts various arguments as to why the Drainage Pipe falls within the
definition of “Common Facilities,” found in article I, section (f):

      “Common Facilities” shall mean and refer to “all existing and
      subsequently provided improvements upon or within the Common
      Properties except those as may be expressly excluded herein. In some
      instances, Common Facilities may consist of improvements for the
      use and benefit of the Owners of all of the Lots constructed on
      portions or one or more Lots, such as storage structures, fountains,
      sidewalks, private streets, common driveways, guest parking spaces,
      landscaping, force main, and other similar improvements.
To fall under the first sentence of this definition, the Drainage Pipe would have to
be an improvement upon or within the Common Properties. As discussed above,
the summary-judgment evidence does not raise a genuine fact issue as to whether
the Drainage Pipe falls within the Declaration’s unambiguous definition of
“Common Properties.” Under that definition, the summary-judgment evidence
does not raise a genuine fact issue as to whether the Drainage Pipe is “upon or
within the Common Properties.”
      The second sentence enlarges the definition of Common Facilities to include
“improvements for the use and benefit of the Owners of all of the Lots constructed
on portions or one or more Lots, such as storage structures, fountains, sidewalks,
private streets, common driveways, guest parking spaces, landscaping, force main,
and other similar improvements.” Based on the plain text, we conclude that this
sentence covers (1) improvements, (2) constructed on one or more Lots, (3) for the
use and benefit of the owners of all the Lots in the Subdivision, (4) including
storage structures, fountains, sidewalks, private streets, common driveways, guest
parking spaces, landscaping, force main, and other similar improvements. The
summary-judgment evidence raises a genuine fact issue as to whether the Drainage
                                          12
Pipe is an improvement constructed on one or more Lots.
      In a forensic engineering investigation contained in the summary-judgment
evidence, two engineers state that the Drainage Pipe “provides surface drainage
control” for Lots 17 and 18. The engineers state that the Drainage Pipe outflows
into the feeder bayou that runs along the west side of Lot 18 and joins Buffalo
Bayou to the south. The engineers also state that the Drainage Pipe “serviced the
subject residence [and] the immediate neighbor to the east.” We conclude that the
summary-judgment evidence raises a genuine fact issue as to whether the Drainage
Pipe, if functioning properly, provided for the drainage of water to the feeder
bayou and thus afforded a use and benefit for the owners of Lots 17 and 18. The
summary-judgment evidence also reflects that Lots 17 and 18 are the northernmost
lots in the Subdivision, bordered to the west by a feeder bayou that flows down
into Buffalo Bayou. In this context, we conclude that the summary-judgment
evidence also raises a genuine fact issue as to whether the Drainage Pipe is an
improvement for the use and benefit of the owners of all the Lots in the
Subdivision.
      A “force main” — listed among the examples of improvements in the
“Common Facilities” definition — is a pipeline that conveys wastewater under
pressure from the discharge side of a pump or pneumatic ejector to a discharge
point. City of Palmview v. Agua Specialty Util. Dist., No. 13-18-00416-CV, 2019
WL 1066423, at *1, n.1. (Tex. App.—Corpus Christi Mar. 7, 2019, no pet.) (mem.
op.). The Drainage Pipe is an improvement similar to the exemplars in the second
sentence. Based on the second sentence of the definition of “Common Facilities”
and under the applicable standard of review, we conclude that the summary-
judgment evidence raises a genuine fact issue as to whether the Drainage Pipe falls
within the definition of “Common Facilities,” so that the Association had a duty to
maintain the Drainage Pipe under article X, section 2. See Parkway Dental Assocs.,
                                        13
P.A. v. Ho & Huang Properties, L.P., 391 S.W.3d 596, 602–07 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).
      4. Would the application of the liberal construction mandated
         under Property Code section 202.003 change the analysis in this
         appeal?
      Purvis asserts that Property Code section 202.003(a) applies to our analysis
in this case. See Tex. Prop. Code Ann. § 202.003(a) (West, Westlaw through 2019
R.S.). Under this statute, entitled “Construction of Restrictive Covenants,” the
Legislature provides that “[a] restrictive covenant shall be liberally construed to
give effect to its purposes and intent.” Id. The Supreme Court of Texas has
concluded that “[a] ‘restrictive covenant’ is a negative covenant that limits
permissible uses of land.” Tarr v. Timberwood Park Owners’ Assoc., Inc., 556
S.W.3d 274, 279 (Tex. 2018).           Though the Declaration contains negative
covenants that limit the permissible uses of land, none of those covenants are at
issue in this case. None of the provisions of the Declaration at issue in this case
are negative covenants that limit the permissible uses of land. It would appear that
section 202.003 does not apply because we are not construing any restrictive
covenant.   See Tex. Prop. Code Ann. § 202.003; Tarr, 556 S.W.3d at 279.
Nonetheless, we conclude that we need not reach the issue of whether section
202.003 applies, because the relevant provisions of the Declaration are
unambiguous and a liberal construction cannot be used as a license to contradict
the plain meaning of the Declaration’s provisions. See Tarr, 556 S.W.3d at 284–
85; State v. PR Invs., 180 S.W.3d 654, 665 (Tex. App.—Houston [14th Dist.]
2005) (en banc), aff’d, 251 S.W.3d 472 (Tex. 2008). Thus, the analysis and
construction of the Declaration’s relevant provisions would be the same, whether
or not section 202.003 applies. See Tarr, 556 S.W.3d at 284–85; PR Invs., 180
S.W.3d at 665.      Because we conclude that all relevant provisions of the


                                         14
Declaration are unambiguous, we overrule Purvis’s fourth issue in which he asserts
in the alternative that the Declaration is ambiguous.
      In sum, under the applicable standard of review, the summary-judgment
evidence raises a genuine fact issue as to whether the Association had a duty to
maintain the Drainage Pipe under article X, section 2 because the Drainage Pipe
falls within the Declaration’s definition of “Common Facilities.” See Parkway
Dental Assocs., P.A., 391 S.W.3d at 602–07.
   C. Did the summary-judgment evidence raise a genuine fact issue as to
      whether the Association failed to maintain the Drainage Pipe?
      In a forensic engineering investigation contained in the summary-judgment
evidence, two engineers state that approximately 30 to 35 feet into the Drainage
Pipe from the feeder bayou, a large soil mass was completely blocking the
Drainage Pipe, and their report contained a picture of this soil mass. They also
reported that the Drainage Pipe “had become backwards sloped into the hillside,
either from settlement at the point of the soil plug, uplift of the mouth of the pipe,
or a combination of both.”        Based on various observations, the engineers
concluded that the Drainage Pipe “had been in a state of failure for some time,
perhaps years.” The Association does not claim to have maintained the Drainage
Pipe. Under the applicable standard of review, we conclude that the summary-
judgment evidence raises a genuine fact issue as to whether the Association failed
to maintain the Drainage Pipe, thus breaching any contractual duty the Association
had to maintain the Drainage Pipe. See id.

      The summary-judgment evidence raises genuine fact issues as to (1) whether
the Association had a duty to maintain the Drainage Pipe under article X, section 2
because the Drainage Pipe falls within the Declaration’s definition of “Common
Facilities” and (2) whether the Association failed to maintain the Drainage Pipe.
Therefore, the trial court erred in granting summary judgment as to the contract

                                         15
claim on the sole ground of no evidence of breach of contract. To this extent, we
sustain Purvis’s second and third issues, and we reverse and remand as to the
breach-of-contract claim. See id. 602–10. Otherwise, we overrule the second and
third issues.

D.    Did the trial court err in granting summary judgment as to the
negligence claim because the Association’s no-evidence-of-negligence-duty
ground was improper?
      In his first issue, Purvis asserts that the Association’s no-evidence ground
challenging the existence of a negligence duty involved a purely legal issue — the
interpretation of the Declaration — and so was not a proper basis for a no-evidence
summary judgment. Under Supreme Court of Texas precedent and Fourteenth
Court of Appeals precedent, the Association’s no-evidence-of-duty ground was a
proper no-evidence ground challenging an essential element of Purvis’s negligence
claim. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310–11 (Tex. 2014) (affirming
trial court’s grant of a no-evidence summary judgment based on a no-evidence-of-
negligence-duty ground even though high court noted that “[d]uty presents a legal
question” and holding that the movants owed the plaintiffs no negligence duty as a
matter of law because the plaintiffs were trespassers); Chrismon v. Brown, 246
S.W.3d 102, 112, 114, n.12 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(disagreeing with dissenting justice’s conclusion that the court could not adopt the
inherent-risk doctrine because no party specifically asserted this doctrine in the
trial court and because no summary-judgment ground before the court of appeals
raised the issue given that the movant “asserted a no-evidence ground in which it
attacked the essential element of duty”).

      In Chrismon, the dissenting justice concluded that the majority could not
adopt the inherent-risk doctrine because no party specifically asserted this doctrine
in the trial court and because no summary-judgment ground before the court of

                                            16
appeals raised the issue. Chrismon, 246 S.W.3d at 112, 114, n.12. The Chrismon
court disagreed with the dissenting justice because (1) the movant in Chrismon
“asserted a no-evidence ground in which it attacked the essential element of duty”;
(2) “[w]hether a duty exists is a question of law for the court to decide from the
facts surrounding the occurrence in question”; and (3) “[i]n its motion, [the
movant] asserted that there is no evidence of this essential element of [one
plaintiff’s] claims” and therefore “the burden shifted to [that plaintiff] to point to
and present evidence that raised a genuine issue as to whether there is a legal
duty.” Id. at 114, n.12. The Chrismon court held that the no-evidence summary
judgment movant “was not required to outline in its motion the legal analysis under
which it claims no duty arises under the facts and circumstances surrounding this
occurrence.” Id.

      Purvis relies on the fact that the trial court denied the Association’s motion
for a traditional summary judgment and that the Association asserted in that
motion that it owed Purvis no negligence duty as a matter of law. That the trial
court denied a traditional summary-judgment motion that attacked the same
element of a claim does not preclude this court from affirming the trial court’s
granting of a no-evidence motion on the same element if the appellant has not
shown any error in the no-evidence summary judgment.

      Purvis cites several cases from sister courts of appeals. The cited portions of
some of these cases amount to obiter dicta and thus lack precedential value. In any
event, these cases, unlike Boerjan and Chrismon, do not bind this court. See
Boerjan, 436 S.W.3d at 310–11; Chrismon, 246 S.W.3d at 112, 114, n.12. In
today’s case, Purvis alleged in his petition that the Association had a negligence
duty to maintain the Drainage Pipe. In this context, the Association’s no-evidence
ground challenging the existence of a negligence duty shifted the burden to Purvis

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to produce summary-judgment evidence raising a genuine fact issue as to whether
the Association had a negligence duty to maintain the Drainage Pipe. See B.C., —
S..3d at —, 2020 WL 1482586, at *2; Koonce v. First Victoria Nat’l Bank, No.
143-10-00282-CV, 2011 WL 3854453, at *6 (Tex. App.—Corpus Christi Aug. 31,
2011, no pet.) (mem. op.). Purvis does not argue on appeal that he satisfied this
burden, so we do not address this issue. Because the law allows the Association’s
no-evidence ground challenging the essential element of duty as to the negligence
claim, we overrule Purvis’s first issue, which is his only challenge to the summary
judgment on that claim.

                                III.   CONCLUSION

      The summary-judgment evidence raises genuine fact issues as to (1) whether
the Association had a duty to maintain the Drainage Pipe under article X, section 2
because the Drainage Pipe falls within the Declaration’s definition of “Common
Facilities” and (2) whether the Association failed to maintain the Drainage Pipe.
Thus, the trial court erred in granting summary judgment as to the contract claim
on the ground of no evidence of breach of contract.           The law permits the
Association’s no-evidence ground challenging the essential element of duty as to
the negligence claim, and Purvis has not shown that the trial court erred in granting
summary judgment as to this claim.           Therefore, we affirm the trial court’s
judgment as to the negligence claim, reverse the judgment as to the contract claim,
and remand to the trial court for further proceedings consistent with this opinion.




                                       /s/     Kem Thompson Frost
                                               Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

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