Club Vista Development II, Inc. v. Oncor Electric Delivery Company, LLC ( 2014 )

Affirmed and Opinion Filed August 15, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01727-CV
CLUB VISTA DEVELOPMENT II, INC., Appellant
V.
ONCOR ELECTRIC DELIVERY COMPANY, LLC, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-04417
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Francis
Opinion by Justice Bridges
Club Vista Development II, Inc. appeals the trial court’s no-evidence motion for
summary judgment entered in favor of Oncor. In seven issues, Club Vista argues the trial court
erred in granting Oncor’s no-evidence motion for summary judgment and abused its discretion in
excluding certain expert testimony. We affirm the trial court’s judgment.
In April 2010, Club Vista sued Oncor alleging Oncor “negligently maintained and
operated unprotected electrical equipment” that emitted sparks and ignited a fire that damaged
Club Vista’s property on April 9, 2009. The fire damaged approximately 300-400 acres of
property on the west side of Possum Kingdom Lake in Palo Pinto County. Club Vista asserted,
among other things, claims for negligence, res ipsa loquitur, and nuisance. Specifically, Club
Vista claimed Oncor failed to install protected electrical equipment, maintain its transmission
lines, or inspect its electrical equipment. In June 2010, Club Vista filed its first amended petition
alleging the fire started in the immediate vicinity of a telephone pole that had been negligently
maintained and operated with unprotected electrical equipment at the top of the pole mounted
transformer. Club Vista alleged Oncor defectively designed its power lines. In April 2011, Club
Vista filed its second amended petition1 alleging there were high winds in the area on the day of
the fire. Club Vista alleged the high winds caused a power outage on the “1148” line, and “a
worker, Mark Morrison, was dispatched to investigate this outage. Morrison exited his truck
and, “according to his testimony, observed a small fire.” Club Vista alleged “the fire supposedly
observed by Mr. Morrison was caused either by Oncor’s electrical equipment in the area of the
utility pole or by the actions of Mr. Morrison when he went to investigate the source of the
outage.” Club Vista asserted Morrison failed to exercise reasonable care when he failed to
extinguish the fire. Club Vista added to its negligence claims assertions that Oncor failed to
exercise reasonable care when its employees investigated the power outage and the fire was
discovered. The second amended petition added claims under a premises liability theory and
under the theory Morrison assumed a duty of reasonable care to extinguish the fire or report it to
authorities after he saw it.
In August 2011, intervenor Travelers Lloyds of Texas Insurance Company filed its
second amended petition alleging virtually identical facts and causes of action as Club Vista.
Travelers set forth the following version of the facts: on April 9, 2009, the fire originated in the
vicinity of a utility pole owned, operated, and maintained by Oncor. Initially, investigating
authorities, including virtually all the fire departments and the Texas Forestry Service, identified
the cause of this fire as being electrical lines. The only electric lines in the area where the fire
started are Oncor lines that are on the subject utility pole. The fire marshal from Mineral Wells,
1
In December 2010, Club Vista filed a pleading entitled second amended petition that was virtually identical to the first amended petition.
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Berry Gill, had reportedly found a dead vulture near the electric line. The wildlife protection for
the utility pole in question was also found on the ground close to the utility pole. Therefore, a
possible cause of this fire was believed to be related to wildlife coming into contact with
energized lines. Gill later stated he found no vulture.
However, Travelers further alleged Morrison saw a small fire “the size of a baseball or a
softball” as he walked down a dirt road to examine Oncor’s power line. After observing the fire,
Morrison “simply continued down through the gate to inspect the rest of the line, stating that he
would put the fire out when he came back.” By the time Morrison came back, “the fire was a
full-fledged conflagration,” and Morrison could not get to his truck. Morrison had to “circle
around, go to his truck, and he called 911 as he fled the scene.” Travelers alleged Morrison “is a
smoker” and caused the fire he saw based on the following factors: Morrison admitted the fire
started when he was present at the scene; he was the only person there; he admitted he did not
see any ignition sources at the point where the fire started; weather conditions “made it very
susceptible to the fire being caused by a carelessly discarded cigarette;” he stated in his
deposition that he does not smoke at work, but his supervisor testified he does smoke at work, he
is not allowed to smoke in his Oncor truck, and he smokes when he gets out of his truck; the area
where he said he saw the incipient fire is a short distance from where he parked his truck; the
point where he says he saw the fire is also a point where he was likely to have attempted to
dispose of or dropped a cigarette as he attempted to open a gate; his statement that he saw the
fire start and decided to put it out later “strains credulity.”
In February 2012, intervenor American National Lloyds Insurance Company (ANPAC)
filed its petition in intervention in which it adopted all facts and causes of action pled by Club
Vista and the other intervenors. In July 2012, Club Vista filed its seventh amended petition
setting forth a version of the facts virtually identical to that asserted by Travelers and ANPAC.
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In September 2012, Oncor filed a traditional and no-evidence motion for summary
judgment that first summarized the history of the case as follows: Club Vista’s first three
petitions alleged the fire was caused by Oncor’s negligent maintenance and operation of
electrical equipment on a utility pole. Club Vista was forced to abandon that theory, however,
when they learned that the equipment allegedly causing the fire was de-energized. Next, Club
Vista alleged that the fire was caused in an unidentified manner by Morrison, who was in the
area investigating the outage. Finally, Club Vista alleged the cause of the fire was careless
smoking by Morrison. Oncor argued there was no evidence to support the supposition that
Morrison caused the fire through careless smoking. Oncor argued Morrison testified he did not
smoke on April 9, 2009; nobody saw him smoking; none of his colleagues have ever seen him
smoke in the field; and nobody had ever found evidence of smoking at the scene, a heavily-treed
area between the highway in a row of residences that is accessible by anyone. Noting that Club
Vista also argued Oncor was liable for the fire because Morrison did not put it out or report it
fast enough, Oncor argued Morrison had no duty to take any action with respect to a peril he did
not cause.
Oncor’s motion asserted, among other things, there was no evidence to support Club
Vista’s active negligence theory2 because there was no evidence Morrison breached any duty of
care or that such breach proximately caused the fire. Specifically, Oncor argued that, prior to the
filing of this lawsuit, not one person – not a homeowner, firefighter, fire marshal, governmental
authority, insurance company, or fire investigator – ever suggested the fire was started by a
cigarette, despite multiple attempts to identify the cause. Oncor argued Club Vista based its
entire careless smoking case on evidence that Morrison had smoked before, was the first to
2
Club Vista does not challenge the trial court’s summary judgment on its assumed duty/negligent undertaking, premises-control, or res ipsa
loquitur claims. Accordingly, we do not further address these claims.
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report a fire at the location in question, and said he did not notice anything in the area that could
have caused the fire.
Oncor’s motion was supported by affidavits and deposition testimony including the
following: Karen Ridenour, a wildfire preparation specialist for the Texas Forest Service,
testified within a sixteen hour period on April 9, 2009, there were 205 wildfires in twelve
counties, including Palo Pinto County. Palo Pinto County Fire Marshal Gill testified “[t]hat day
was real low humidity . . . And very high winds. So you know, it was a given that we was going
to have a fire somewhere.” Gill testified he had been investigating the causes and origins of fires
for seven years. From Gill’s investigation, he could not make a determination of the exact area
of the origin of the fire and could only narrow down the area of origin to “within a quarter-mile
area.” As fire marshal for the county, Gill testified it was his “main concern” to determine if the
fire “was a suspicious origin,” but Gill “didn’t see anything suspicious about it.”
Morrison testified he received a call on April 9, 2009, about a power outage at Possum
Kingdom Lake. The dispatcher called Morrison on his cell phone and told him that “we had a
recloser out,” which is a device that can open and close the power line. Another Oncor
employee, Henry Freeze, called Morrison, and they agreed Freeze would stop at the recloser and
Morrison would visually inspect the line. Morrison was driving east on 1148 but turned around
where the line went off the road where Morrison could not see it. Morrison turned down Gentry
Lane and pulled up to a gate where he parked his truck and got out to “walk down to look at the
line.” Morrison saw “just a little small smoldering fire underneath a cedar tree right at – on the
corner of the gate under a pretty good sized cedar tree.” Morrison saw “it smoking and just a
small – little small flame.” Morrison was going to put the fire out when he got back to his truck.
At the location of the fire, “it was rocks, and it was underneath a cedar tree.” There was “no way
you could put the fire out without either crawling in there or using a fire extinguisher,” and
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Morrison “didn’t think it was going to go nowhere with the rocks and the green tree.” Morrison
“could barely see the flame on” the smoldering underneath the tree, and there was “very little”
smoke. Morrison thought it was “just a few leaves that had blew under that tree” that were
burning. The size of the burning area was “between a baseball and softball.” Morrison testified
he did not try to put out the fire when he first discovered it because he “didn’t think it was going
to go anywhere because it’s just – it was all rocks. The cedar tree – I didn’t – I didn’t think a
green tree would burn. And there was just a – it was just a little bitty fire underneath there, and it
was just covered in rocks. And – there wasn’t nothing there that I thought would burn.”
Morrison “proceeded to walk down to the – the line and do a visual inspection on the
line.” Morrison spent “no more than one or two minutes” checking the line. “And on the way
back up to the – my truck, the cedar tree caught on fire.” Morrison called Freeze and told him
that a small fire had caught a cedar tree on fire and Morrison could not get to his truck because
“the tree was between – right at the edge of the gate.” Freeze told Morrison to leave the truck
and get away from the fire, but Morrison “went down the fence line and crawled over the fence
and got to [his] truck, called 911 as [he] was headed back up to 1148.”
Morrison testified he is a smoker but was not smoking on the day of the fire. Morrison
testified he does not smoke while working and “dip[s] snuff” instead. In an affidavit attached to
Oncor’s motion for summary judgment, Freeze stated he was asked at his deposition whether
smoking is permitted in Oncor’s trucks, and he responded “no.” Freeze “presumed the question
was asking whether smoking was permitted in Oncor trucks when [Freeze] was with Mr.
Morrison.” Freeze clarified that Oncor employees such as Morrison are permitted to smoke in
Oncor trucks when the employees are alone, unless the trucks are designated non-smoking. This
was the rule in 2009, and none of the trucks at the Oncor service center were designated non-
smoking in 2009.
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In October 2012, Club Vista filed a response to Oncor’s motion for summary judgment
supported by the affidavits, among others, of fire reconstruction experts Michael Klassen and
Freeman Reisner and psychologist Antonio Cepeda-Benito.
Klassen is a mechanical engineer. Klassen states in his affidavit that, on the day of the
fire, the winds were very strong from the southwest, and the fire observed by Morrison was in
the Southwest portion of the quadrant. Klassen stated his opinion that Morrison observed the fire
in that area and the fire then spread in a northerly and easterly direction. Based upon the small
size of the fire Morrison observed, Klassen stated his opinion that the fire initiated after Morrison
arrived and got out of his truck. Klassen stated the fire did not ignite spontaneously, and “the
only possible explanations for what Mr. Morrison observed are that an act or omission of Mr.
Morrison started the fire or that an ember from a preexisting fire to the west or southwest
traveled to the point where Mr. Morrison first observed fire.” Klassen stated no one had
identified any fires to the west or southwest prior to Morrison observing this fire. Klassen noted
Morrison did not state that he saw any other fires or that he saw an ember that would be
sufficient to ignite this fire. Given that Morrison was the only person present, Klassen formed
the opinion that “some act or omission of Mr. Morrison started the fire.” Further, because
Morrison is a smoker, he exited his truck shortly before he saw the fire, and the fire happened
near a gate Morrison needed to open, it was Klassen’s opinion that the most likely cause of the
fire was “the careless disposal of a cigarette” by Morrison. Klassen’s affidavit was supported by
a report he generated on the cause of the fire. The report states it was based upon a December
14, 2011 visit to the scene of the fire. The report cited “reports that Mr. Morrison smoked on
breaks during work hours,” and specifically referenced Freeze’s statement that he had previously
seen Morrison exit his work truck to smoke a cigarette. The report cited GPS data showing
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Morrison was present in the area for five to fifteen minutes, “ample time” for Morrison to smoke
a cigarette after he exited his work truck.
Klassen testified this case was the first wildfire case or case involving smoking materials
in which he had been designated as an expert. Klassen previously investigated a fire that started
in the grass outside a house and transitioned from the grass to the house. When asked if it would
affect his opinions if Morrison were not a smoker, Klassen answered, “If he wasn’t a smoker,
then – then you would be able to logically eliminate smoking as a cause.”
Cepeda-Benito’s affidavit states he is a psychologist who specializes in the study of
addictive behaviors, and he prepared a report regarding Morrison’s propensity to smoke after he
exited his vehicle. Cepeda-Benito’s report states it is based on the facts that (1) Morrison is a
smoker; (2) Morrison and Freeze testified Morrison does not smoke inside the cabin of Oncor’s
trucks; (3) Freeze reported that Morrison smokes when he gets out of his truck; and (4) smoking
is habit-forming and largely controlled by contextual cues: that is, through repeated practice,
smokers learn routines that dictate when and where they smoke. The report states it is “more
likely than not” that Morrison has developed the habit of smoking as soon as he leaves his truck.
While working, he is deprived of smoking because he does not smoke inside the cabin of the
truck. Through many practices or repeated occurrences, getting out of the truck has become a
cue or signal that “reminds” him of smoking or that he has associated with smoking. Thus, the
report concluded, it is more likely than not Morrison smoked on April 9 after he parked and got
out of his truck.
Reisner is an electrical engineer. In deposition testimony, Reisner testified he visited the
scene of the fire on May 5, 2009. Reisner was looking at the power line because “the only
source for ignition at that point would have been the power line.” He saw a utility pole that had
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been cut and a bird guard lying on the ground. Reisner “thought maybe since the bird guard was
down that the buzzards had gotten in there and maybe damaged the transformer.”
In Reisner’s affidavit attached to Club Vista’s response, Reisner states he is a fire cause
and origin expert. Reisner visited the scene of the fire “shortly after the fire occurred,” and his
observations led him to conclude that what Morrison saw was the beginning of the wildfire.
Given that the area burned in the fire was to the north and east of where Morrison saw the small
fire, Reisner opined it was not possible the fire started to the north or east of that point and then
an ember blew back against the wind to start the fire. Reisner “conducted an experiment to
determine whether a cigarette could ignite material such as those that would exist at the time.”
Based on those experiments, Reisner formed the opinion that “the fire could have easily been
ignited by a carelessly disposed cigarette.”
Reisner also generated a report describing the following laboratory test: “we collected
juniper leaves and dead grass, dried the collected material, and piled it on a metal plate. We
dropped a lit cigarette on the dried material, dropped some material over the smoldering end of
the cigarette, and provided wind with a small battery-powered fan. After 3 to 4 minutes, the
dried material ignited and flames arose.” The report concluded that a “test with a lit cigarette in
dried grass and juniper leaves”3 showed it would take only about three or four minutes for a fire
to ensue after the cigarette fell into the dried leaves. Reisner opined the probable cause of the
fire was a discarded cigarette.
Oncor filed a motion to strike Club Vista’s summary judgment evidence. Oncor set forth
the “facts” cited in Cepeda-Benito’s affidavit and argued three of his foundational facts were
“undeniably wrong.” Therefore, Oncor argued, the affidavit was inadmissible. Specifically,
3
In its motion to strike Club Vista’s summary judgment evidence, Oncor asserted “Reisner obtained a cookie sheet from his oven, grabbed
some leaves from his backyard, literally bummed a cigarette (the brand of which he does not know) from a guy at a gas station, put two fans from
the back of his computers up to the cookie pan, lit the cigarette, dropped it on the leaves, and then, when it would not light (as evidenced by a
video that Plaintiffs leave out of the record), started dropping leaves on the lit end of the cigarette.”
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Oncor argued the evidence unequivocally establishes (1) Morrison can and does smoke in his
Oncor truck; (2) Morrison does not smoke when exiting his truck while working, as he was on
the day of the fire; and (3) Morrison did not have access to necessary smoking materials at the
time in question. Citing Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011), Oncor argued
that, if the foundational data underlying opinion testimony are unreliable, an expert will not be
permitted to base an opinion on that data because any opinion drawn from that data is likewise
unreliable. Oncor cited Morrison’s testimony in which he answered “yes” when asked “are you
a smoker?” and testified he does not smoke while working. Oncor cited its own policy that
would have prevented Morrison from smoking in his truck when Freeze was present but would
permit Morrison or other employees to smoke in Oncor trucks when they were alone. Oncor
argued there was too great an “analytical gap” between the data Cepeda-Benito relied on and his
opinion. Finally, Oncor cited Morrison’s testimony that he does not smoke while working and
dips snuff instead to support its argument that Cepeda-Benito merely “assume[d] the critical fact
that Morrison had necessary smoking materials with him at the time he exited his vehicle.” Such
speculation, Oncor argued, could not support a reliable and relevant opinion.
As to Reisner, Oncor challenged his status as a “fire cause and origin expert,” arguing
that investigating wildfires was not listed as one of his areas of consulting on his resume. Noting
it was Club Vista’s burden to prove Reisner’s qualifications, Oncor argued his affidavit could be
stricken for this reason alone. Oncor argued further that Reisner is an electrical engineer, and
almost all of his training concerns electricity-caused, urban fires. Oncor cited Reisner’s
deposition testimony in which he could recall only five instances in which he had ever
investigated a wildfire, and in every one of those situations the issue was whether power lines or
their related facilities caused the fire.
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Oncor further argued Reisner’s affidavit and report should be stricken because they were
unreliable, conclusory, and incontrovertible. Regarding Reisner’s “experiment,” Oncor argued
Reisner did not identify any of the conditions under which the experiment was performed.
Oncor asserted Reisner did not record any data in connection with the experiment, and even if he
had he could not establish the test was reliable because he did not know the conditions under the
tree where he believed the fire started.
Regarding Klassen’s affidavit and report, Oncor argued nothing in his resume indicated
he had any knowledge about the investigation of wildfires, the ecosystem around Possum
Kingdom Lake, or the atmospheric sciences. All of Klassen’s degrees are in mechanical
engineering, and all of his work experience is related to combustion and machines, primarily
turbines and smoke alarms. Oncor asserted Club Vista presented no evidence Klassen had any
training or experience in fire cause and origin investigations.
Club Vista filed a response in which it characterized Oncor’s motion for summary
judgment as a series of Robinson motions to strike expert testimony. Club Vista moved for a
continuance so that a separate hearing could be set and it could have an opportunity to respond.
Oncor filed a reply in which it argued that, when responding to a no-evidence summary
judgment motion, it is plaintiffs’ burden to establish the qualifications and reliability of their
experts’ opinions in the first instance, i.e., in the response. Oncor argued a Robinson hearing
was unnecessary and asked the trial court to strike Club Vista’s summary judgment evidence and
deny its request for continuance. Club Vista subsequently filed another response in which it
contested Oncor’s overestimation of the technical issues involved in determining the cause of the
fire. Club Vista further defended its experts’ methodologies and qualifications and attempted to
discredit Oncor’s arguments that other causes of the fire had not been reasonably ruled out. Club
Vista, much as it had in its response to Oncor’s motion for summary judgment, argued Reisner,
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Klassen, and Cepeda-Benito were qualified experts who followed the scientific method to reach
a conclusion about the fire’s probable cause.
At the November 16, 2012 hearing on Oncor’s motion for summary judgment, Club Vista
presented, by deposition, evidence of the opinions of Reisner, Klassen, and Cepeda-Benito,
among others.
Following the arguments of counsel, the trial judge stated he was going to grant the
motion to strike as to Cepeda-Benito because he did not “think that the record provide[d]
adequate data for [Cepeda-Benito] to reach the conclusions that he is trying to offer.” As to the
fire cause and origin experts, Reisner and Klassen, the trial judge stated it did not appear they
had “any real experience with wildfires” or “undertook any meaningful effort to educate
themselves.” The trial judge was not satisfied that either Reisner or Klassen demonstrated a
proper foundation for an opinion that either the fire was more probably than not caused by a
cigarette or that Morrison was the smoker. The trial judge stated “there is a serious analytical
gap here” and concluded Reisner’s and Klassen’s testimony was inadmissible. Having granted
the motions to exclude the opinion testimony on causation, the trial judge also granted Oncor’s
motion for summary judgment. On November 30, 2012, the trial judge signed an order
excluding, among other things, the testimony of Reisner, Klassen, and Cepeda-Benito and
granting Oncor’s no-evidence motion for summary judgment. This appeal followed.
We first address Club Vista’s third, fourth, fifth, sixth, and seventh issues in which it
argues the trial court abused its discretion in excluding its fire cause and origin testimony;
finding an “analytical gap” in the experts’ reasoning; insisting on a “smoking gun” piece of
physical evidence, eyewitness testimony, or an admission by Morrison in order for the experts’
opinions to be reliable; excluding Reisner’s and Klassen’s testimony in its entirety; and
excluding the testimony of Cepeda-Benito.
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We review a trial court’s ruling on the reliability of expert testimony for an abuse of
discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). Under this standard,
the trial court has broad discretion in deciding whether to admit or exclude expert’s testimony.
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). We will uphold a
trial court’s evidentiary ruling excluding expert testimony if a legitimate basis for the ruling
exists. Weingarten Realty Investors v. Harris Cnty. Appraisal Dist., 93 S.W.3d 280. 283 (Tex.
App.–Houston [14th Dist.] 2002, no pet). We reverse only if the trial court acted arbitrarily,
unreasonably, or without reference to any guiding rules or principles. Harris Cnty. Appraisal
Dist. v. Hartman Reit Operating P’ship, 186 S.W.3d 155, 157 (Tex. App.–Houston [1st Dist.]
2006, no pet). An abuse of discretion is not demonstrated by a mere error in judgment. Id. Nor
will an appellate court reverse the trial court’s conclusion even if it would have held differently.
Lincoln v. Clark Freight Lines, Inc., 285 S.W.3d 79, 84 (Tex. App.–Houston [1st Dist.] 2009, no
pet). In an abuse of discretion review, “[c]lose calls must go to the trial court.” Larson v.
Downing, 197 S.W.3d 303, 304 (Tex. 2006) (per curiam). Thus, trial courts are given wide
latitude in their rulings on the reliability of expert testimony. Hartman Reit Operating, 186
S.W.3d at 157, 162.
To be admissible, an expert must be qualified and the testimony must be relevant and
reliable. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010). The challenge to the
experts in this case concerned the reliability of their opinions. A court cannot simply accept
expert testimony at face value because unreliable expert testimony constitutes no evidence.
Exxon Corp. v. Makofski, 116 S.W.3d 176, 180 (Tex. App.–Houston [14th Dist.] 2003, pet.
denied). The trial court should “undertake a rigorous examination” of the three components of
the reliability inquiry - namely, the expert’s methodology, foundational data, and whether too
great an analytical gap exists as the expert connects the foundational data or methodology with
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the opinion. See TXI, 306 S.W.3d at 239; Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637,
642 (Tex. 2009) (courts are to examine reliability of underlying data, methodology or principles,
and application to reach conclusions, and expert must connect data relied on to opinion and show
how data is valid support for opinion); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 39 (Tex.
2007) (expert testimony is unreliable if “it is based on unreliable data or the expert draws
conclusions from his underlying data ‘based on flawed methodology’ or there is simply too great
an analytical gap between the data and the opinion offered”). Each material part of an expert’s
theory must be reliable. Whirlpool, 298 S.W.3d at 637. Stated differently, the expert’s
testimony must be reliable at each and every step or else it is inadmissible. Wilson v. Shanti, 333
S.W.3d 909, 913 (Tex. App.–Houston [1st Dist.] 2011, pet. denied). An expert’s affidavit that is
based on assumed facts that vary from the actual undisputed facts has no probative force.
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
There are limits to the trial court’s rigorous examination. Wilson, 333 S.W.3d at 913.
Courts may not second-guess the correctness of the expert’s conclusions; they are only to
examine whether the analysis used to reach those conclusions is reliable. TXI, 306 S.W.3d at
239. A court’s gate-keeping analysis is also not a substitute for cross-examination. See
Gammill, 972 S.W.2d at 239. A court is not permitted to determine reliability based on the
weight of the evidence or the credibility of the witnesses. Wilson, 333 S.W.3d at 913.
Upon objection, the proponent of the expert opinion must prove the reliability of each
opinion by a preponderance of the evidence. Mack Trucks, 206 S.W.3d at 578. The proponent
bears this burden “regardless of the quality or quantity of the opposing party’s evidence on the
issue and regardless of whether the opposing party attempts to conclusively prove the expert
testimony is wrong.” Whirlpool, 298 S.W.3d at 639. Part of the burden of proof is ensuring that
the expert’s testimony contains no internal inconsistencies. See Gen. Motors Corp. v. Iracheta,
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161 S.W.3d 462, 470-72 (Tex. 2005). The trial court is not required to conduct a Robinson
hearing separate and apart from the summary judgment hearing to determine the admissibility of
summary judgment evidence from an expert witness. Rayon v. Energy Specialties, Inc., 121
S.W.3d 7, 19-20 (Tex. App.–Fort Worth 2002, no pet.). There is no difference between the
standards for evidence that would be admissible in a summary judgment proceeding and those
applicable at a regular trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).
Here, neither Reisner nor Klassen had experience with wildfires like the one at issue.
Klassen’s opinion was that the most likely cause of the fire was “the careless disposal of a
cigarette” by Morrison. Similarly, Reisner formed the opinion that “the fire could have easily
been ignited by a carelessly disposed cigarette.” Klassen based his opinion on “reports” that
Morrison smoked on breaks during work hours. Reisner based his opinion on a “laboratory test”
in which he dropped a lit cigarette on leaves on a “metal plate” with wind provided by “a small
battery-powered fan.” However, there is no evidence Morrison had a cigarette in his possession
on the day of the fire or that he disposed of a cigarette at the scene of the fire. Reisner’s and
Klassen’s opinions are based on assumed facts that vary from the actual undisputed facts. See
Crye, 907 S.W.3d at 499. Under these circumstances, too great an analytical gap exists between
the foundational data and methodology employed by Reisner and Klassen and their opinions.
See TXI, 306 S.W.3d at 239. Accordingly, the court did not abuse its discretion in excluding
their opinions. See Mack Trucks, 206 S.W.3d at 578.
In reaching this conclusion, we reject Club Vista’s argument that the trial court insisted
on a “smoking gun” piece of physical evidence, eyewitness testimony, or an admission by
Morrison in order for Reisner and Klassen’s testimony to be reliable. On the contrary, there was
no physical evidence to establish the reliability of their testimony, which amounted to
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conjectural, conclusory opinions based on the fact that Morrison was a smoker. Further,
exclusion of their testimony in its entirety was warranted under these circumstances.
As to the testimony of Cepeda-Benito, Club Vista argues his testimony was admissible as
evidence of habit. However, his testimony was based on the assumptions that Morrison does not
smoke in his work truck and smokes when he gets out of his work truck. Therefore, Cepeda-
Benito determined, Morrison has formed a habit of smoking as soon as he leaves his truck.
However, this opinion is based on assumed facts that vary from the actual undisputed facts. See
Crye, 907 S.W.3d at 499. The undisputed facts show Morrison is a smoker who does not smoke
while working and dips snuff instead. In addition, Morrison is not prohibited from smoking
when he is alone in his work truck, as he was on the day of the fire. There is no evidence
Morrison was in possession of any smoking materials or cigarettes on the day of the fire. Under
these circumstances, the trial court did not abuse its discretion in excluding Cepeda-Benito’s
expert testimony. See Mack Trucks, 206 S.W.3d at 578. We overrule Club Vista’s third, fourth,
fifth, sixth, and seventh issues.
In its first issue, Club Vista argues the trial court erred in granting Oncor’s no-evidence
motion for summary judgment. Specifically, Club Vista argues there is evidence Morrison was
the only person present when the fire started, the circumstances indicate that it was likely
Morrison smoked at the location of the fire, the fire started at a point where it would be expected
that Morrison would dispose of a cigarette, the conditions were ripe for a cigarette fire, all other
causes have been reasonably ruled out, and Morrison has provided inconsistent and implausible
testimony regarding what he saw and what he did. In its second issue, Club Vista argues the
summary judgment was improper in light of the interested witness rule.
A party may move for summary judgment on the ground that there is no evidence of one
or more essential elements of a claim or defense on which an adverse party would have the
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burden of proof at trial. TEX. R. CIV. P. 166a(i). Assuming such a motion otherwise complies
with the rule, it must be granted unless the non-movant produces summary judgment evidence
raising a genuine issue of material fact as to the contested element or elements. Id.; see W. Invs.
v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
We review de novo a summary judgment granted on either no-evidence or traditional
grounds, examining the entire record in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006) (per curiam). We cannot affirm a summary judgment on grounds
other than those specified in the motion. TEX. R. CIV. P. 166a(c); 166a(i). However, if the trial
court’s order does not specify the grounds on which it granted summary judgment, we affirm if
any of the grounds specified in the motion are meritorious. See Provident Life & Acc. Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003).
We affirm a no-evidence summary judgment if, as to an essential element of the claim or
defense identified in the motion: (a) there is a complete absence of evidence; (b) the court is
barred by rules of law or of evidence from giving weight to the only evidence offered; (c) the
evidence offered is no more than a mere scintilla; or (d) the evidence conclusively establishes the
opposite. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Thus, to avoid a
no-evidence summary judgment, the non-moving party must bring forth more than a scintilla of
probative evidence to raise a genuine issue of material fact as to the element or elements
attacked. Id. More than a scintilla of evidence exists when the evidence rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions. Id. On the other
hand, the evidence amounts to no more than a scintilla if it is so weak as to do no more than
create a mere surmise or suspicion of a fact. Id.
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Here, Club Vista presented summary judgment evidence that established Morrison is a
smoker who saw a small fire under a cedar tree on the day of the fire. However, as we have
discussed, there is no evidence Morrison was in possession of any smoking materials or
cigarettes on the day of the fire. Club Vista produced no evidence Morrison was the cause of the
fire at issue, whether by discarding a cigarette or some other act. See Chubb Lloyds Ins. Co. v.
H.C.B. Mech., 190 S.W.3d 89, 94-95 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (no evidence
cigarette discarded carelessly or accidentally by employee proximately caused fire at residence
even though employee testified he was a smoker and smoked at residence on day of fire); Systech
Fin. Corp. v. Vaughn, 558 S.W.3d 105, 106 (Tex. Civ. App.–Tyler 1977, no writ) (instructed
verdict for tenant proper on landlord’s negligent use of smoking materials claim in connection
with apartment fire even though evidence showed tenant was a smoker and “spent very little time
during the morning in question near the sofa where the fire originated;” evidence it was possible
tenant caused fire could not be accepted as evidence he did so). We have reviewed the record
and conclude the trial court did not err in entering a no-evidence summary judgment in favor of
Oncor. See id.
Club Vista argues summary judgment was improper because of the interested witness
rule, which states “the testimony of an interested witness is sufficient to raise a fact issue.”
Tabor v. Med. Ctr. Bank, 534 S.W.2d 199, 201 (Tex. App.–Houston [14th Dist.] 1976, no writ).
However, this was a no-evidence summary judgment, and Oncor did not rely on Morrison’s
testimony. Instead, the issue was whether Club Vista brought forward more than a scintilla of
evidence as to the elements of its claims Oncor attacked. Chapman, 118 S.W.3d at 751. We
have concluded Club Vista did not meet this burden. Morrison’s testimony was not relevant to
the determination of whether Club Vista met its burden. We overrule Club Vista’s first and
second issues.
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We affirm the trial court’s judgment.
/David L. Bridges/
121727F.P05 DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CLUB VISTA DEVELOPMENT II, INC., On Appeal from the 101st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. 10-04417.
No. 05-12-01727-CV V. Opinion delivered by Justice Bridges.
Justices Moseley and Francis participating.
ONCOR ELECTRIC DELIVERY
COMPANY, LLC, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee ONCOR ELECTRIC DELIVERY COMPANY, LLC
recover its costs of this appeal from appellant CLUB VISTA DEVELOPMENT II, INC..
Judgment entered this 15th day of August, 2014.
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