Samuel Adam Aflalo v. Devin Lamar Harris and Meghan Theresa Harris, 583 S.W.3d 236

Aflalo (buyer/seller?) and the Harrises disputed whether Aflalo was contractually required to provide TAR form 1414 (seller disclosure) under a One to Four Family Residential Contract (Resale).
The Harrises moved for traditional summary judgment, claiming Aflalo breached by not providing TAR-1414 and that they did not breach the contract.
The contract’s paragraph 7.B references the seller’s disclosure notice under Tex. Prop. Code § 5.008; TAR forms 1406 and 1414 are TAR model forms used in practice but are not expressly incorporated in the merger clause.
The contract contains a merger/modification clause stating the contract is the entire agreement and can be changed only by a written agreement; TAR forms 1406/1414 are not mentioned in that clause or elsewhere as incorporated by signed writing.
Justice Schenck concurred in the judgment but wrote separately: he agrees the seller must disclose what § 5.008 requires, not the additional items on TAR forms, and he would reverse the summary judgment based on the contract’s merger clause precluding an obligation to provide TAR-1414 absent a signed written agreement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Aflalo was contractually required to provide TAR form 1414	Harrises: contract obligation required TAR-1414; Aflalo failed to perform	Aflalo: no separate written agreement incorporated TAR-1414; obligation limited to statutory §5.008 disclosures	Court: Aflalo had to disclose what §5.008 requires, not additional TAR form content; Harrises not entitled to summary judgment on contract breach under merger clause reasoning (concurring opinion)
Whether the contract’s merger clause bars imposing obligations not in the written contract	Harrises: form selection/usage implies obligation to provide TAR forms	Aflalo: merger clause precludes extra-contractual obligations absent signed writing	Concurrence: merger clause prevents implying an obligation to provide TAR-1414 beyond §5.008; summary judgment inappropriate
Whether summary judgment for the Harrises was proper	Harrises: their motion established no-material-fact and entitlement to judgment as a matter of law	Aflalo: summary judgment proof legally insufficient because contract precludes obligation to provide TAR-1414 absent signed addendum	Held: Majority enforces §5.008 disclosure requirement; concurring justice would reverse because merger clause defeats Harrises’ summary judgment on breach

James M. Clifton, Inc. v. Premillenium, Ltd., 229 S.W.3d 857 (Tex. App.—Dallas 2007, no pet.) (standard for summary judgment review)
M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (nonmovant need not respond if movant’s summary judgment proof is legally insufficient)
Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459 (5th Cir. 2003) (courts may supplement parties’ arguments when issues are properly before the court)
Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1980) (courts retain power to identify proper legal construction beyond parties’ theories)
Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510 (Tex. 2017) (issues presented below are live even if not raised in intermediate appeals)
Matheson Tri–Gas, Inc. v. Atmel Corp., 347 S.W.3d 339 (Tex. App.—Dallas 2011) (construction of unambiguous contract is a question of law reviewed de novo)
U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) (when an issue is properly before the court, the court is not limited to legal theories advanced by parties)
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991) (same principle regarding court’s independent power to apply governing law)