Dora Gulley v. State Farm Lloyds ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00892-CV
Dora GULLEY,
Appellant
v.
TARH E&P Holdings, L.P.,
STATE FARM LLOYDS,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-03371
Honorable Sol Casseb, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: December 23, 2014
AFFIRMED
Homeowner Dora Gulley appeals the trial court’s judgment in favor of State Farm Lloyds
in her lawsuit alleging that the foundation movement at her residence was caused by plumbing
leaks, and therefore the interior damage was covered under the water damage endorsement to her
homeowners policy. We overrule Gulley’s issues on appeal and affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, approximately three years after Dora Gulley’s home was built on a general slope,
she and her husband, who is now deceased, started noticing cracks in the walls and ceilings inside
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the house. Mr. Gulley initiated a claim with State Farm in 2000, but later withdrew it upon being
informed that coverage depended on whether there was a plumbing leak. Having built the house
himself, Mr. Gulley was confident there was no plumbing leak. The Gulleys had the interior
sheetrock cracks repaired in 2000.
The cracks inside the house reappeared and worsened from 2000 to 2006. In March 2007,
Mrs. Gulley called AAA Auger Plumbing because she was having drainage problems in the toilets
inside the home’s two side-by-side bathrooms. The plumber found two breaks in the sewer drain
line below the foundation under the hall bathroom. Mrs. Gulley contacted State Farm and it sent
out another plumber from T.C. Carey Plumbing, who found the same two issues. 1
The State Farm claims adjuster, Jerry Duran, inspected the home and took photographs of
the interior cracks. Based on his investigation and the Carey plumber’s findings, Duran made a
report that stated the bathrooms’ “drain line is severed” and the plumber found “gravel in the drain
line;” there is “cracking damage in both bath areas along the ceiling and wall;” and “the hall bath
has signs of cracking damage on the vinyl floor.” Duran concluded, “[t]here appears to be
correlation between the significant plumbing leak and the cracking damage to the bath and offset
areas.” Duran recommended that State Farm pay the claim under the Dwelling Foundation
Endorsement (“DFE”) of the homeowners policy, which had a 15% cap. Mrs. Gulley accepted the
payment from State Farm of $13,550.
Mrs. Gulley obtained a $17,500 estimate from Mitchco Foundation Company to repair the
home’s foundation. She contacted Duran and asked why the Water Damage Endorsement
1
The first problem was a two-inch vertical separation in the sewer drain line underneath the toilet in the hall bathroom.
The second problem was a blockage about four feet down the same drain line which was caused by roots that invaded
the pipe through some type of opening which the plumbers’ cameras could not reach. Carey found that the drain line
was also filled with gravel. The parties refer to these two line breaks as “leaks” and we will do so as well. Moreover,
both experts assumed the line breaks were leaking some amount of water, although the quantity of water was unknown.
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(“WDE”) to her State Farm policy did not cover the “collateral damage” as well as the plumbing
repairs. Duran replied that, “there was causation from the plumbing leaks to the cracking damage
to your home . . . [but] the collateral damage (cracking damage to the home) was included as part
of the foundation coverage. . . [and] the 15 percent limit applied to this damage as well.” Gulley
repaired the foundation in 2008 through a less expensive method, installing interior and exterior
piers under the foundation at a cost of $14,600. Similarly, instead of hiring a professional plumber
to replace the damaged drain line under the slab for almost $25,000, she had her friends and family
re-route the drain line and another plumber repair the bathroom drain. At the time of trial, the
interior cracks in the walls, floor, and ceiling had not been repaired.
Mrs. Gulley sued State Farm for breach of contract after it rejected her claim for additional
coverage under the WDE. Both parties filed cross motions for summary judgment on the issue of
coverage under the WDE. The trial court did not rule on the agreed question of law regarding
coverage; instead, the parties and court agreed to bring an interlocutory appeal on the stipulated
legal issue. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2014). A panel of
this court held the trial court erred when it denied both summary judgment motions and expressly
declined to make a decision on the substantive question of law; the case was remanded for the trial
court to rule on the legal issue. Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San
Antonio 2011, no pet.). Following remand, the trial court reconsidered the parties’ previously filed
summary judgment motions. The court denied State Farm’s motion and granted Gulley’s motion
in a general order, ruling that the WDE did apply to Gulley’s damage claim. 2 Gulley then decided
she wanted to proceed to a jury trial. State Farm, however, sought to enforce a prior Rule 11
agreement it claimed precluded a trial. State Farm brought another interlocutory appeal on that
2
State Farm has not raised a conditional cross-point on the issue of WDE coverage in this appeal. See TEX. R. APP.
P. 25.1(c).
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issue which we dismissed for lack of jurisdiction. State Farm Lloyds v. Gulley, 399 S.W.3d 242
(Tex. App.—San Antonio 2012, no pet.).
A jury trial finally commenced in July 2013. At trial, in addition to the testimony of Mrs.
Gulley, the plumbers, and the State Farm adjuster Duran, both sides presented their own
professional engineering experts with over 30 years’ experience. Gulley’s expert was James
Bradley; State Farm’s expert was Phil King. Both engineers inspected Gulley’s home in 2008
before the plumbing and foundation repairs and issued reports, and then re-inspected the home
shortly before trial in 2013, after the repairs, and issued supplemental reports. Both obtained land
survey elevations of the interior and exterior before and after the repairs. Both agreed that the soil
surrounding the Gulley home was expansive clay soil with high plasticity. Further, Bradley and
King agreed that the Gulley home had suffered excessive foundation movement, and that due to
the movement there was interior damage throughout the home.
As to the cause of the excessive foundation movement, Bradley concluded that it was due
to the two plumbing leaks. Bradley opined that the two plumbing leaks had, over time, released
water which gravity caused to flow down the dirt and gravel trench underlying the center drain
line that ran the length of the house below the slab. Bradley stated the water was absorbed into
the expansive clay soil, causing a “heaving” movement of the foundation along the drain line under
the center of the house, which in turn caused the wall cracks and separation of the ceiling from the
walls. Bradley based his conclusion on the 2008 elevations and his observations of the interior
damage. King, on the other hand, read the 2008 elevations as showing “distortions” in the form
of bending and flexing all across the home’s foundation, with no evidence of consistent “heaving”
along the center drain line or at the site of the plumbing leaks under the hall bathroom at the south
wall of the house. King agreed with Bradley that if the plumbing leaks under the hall bathroom
had caused the foundation movement there would be obvious “heaving” at the site of the leaks
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where the clay soil had absorbed the water. However, based on the 2008 elevations and the contour
diagrams he obtained from those measurements, King did not see consistent “heaving” of the slab
under the hall bathroom; in fact, he stated the hall bathroom was at a relatively low point on the
foundation according to the elevations and diagrams.
King concluded the excessive foundation movement was caused by naturally occurring
seasonal moisture fluctuations in the clay soil, i.e., soil expansion when wet and soil contraction
when dry, which the lightly-constructed foundation was not rigid enough to withstand. 3 Bradley’s
opinion concerning seasonal moisture fluctuations in the soil was that it would cause foundation
movement, but only within five to eight feet of the perimeter of the house and would not reach the
center of the house. King agreed with the general principle that seasonal moisture changes will
affect the perimeter first, but opined that once the soil became saturated at the perimeter the
moisture front would migrate farther inward toward the center of the slab and then recede as the
soil became drier; this cyclic in-and-out movement is typical with clay soil. Finally, King testified
that the 2013 elevations and contour diagrams, obtained after the plumbing leaks were repaired
and piers were installed under parts of the foundation, showed continued excessive movement in
the foundation, which confirmed his conclusion that the plumbing leaks were not the cause of the
excessive movement and interior damage. Bradley disputed King’s interpretation of the 2013
elevations and contours, stating he did not see evidence of excessive foundation movement after
the repairs.
3
In his reports, King stated that settlement of un-compacted fill material underneath the slab likely contributed to the
foundation movement. At trial, King clarified that the fill settlement would have been a one-time occurrence within
one to two years after construction of the home in 1995. Because the Gulleys repaired the first interior cracks in 2000,
King stated the current interior damage would not be due to fill settlement. King further explained that fill settlement
usually causes a tilt, which was present in the Gulley slab, but does not cause a flexing or bending of the slab which
was also present in the Gulley slab. King stated the interior damage is related to flexing of the slab.
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At the conclusion of trial, the jury was asked to determine the following issue in Question
No. 1 of the charge: “Did the walls, floors or ceilings of Dora Gulley’s home deteriorate as the
result of . . . continuous or repeated plumbing leaks which occurred over a period of time?” The
jury answered “No.” As a result of the jury’s finding of no causation, the trial court entered a take-
nothing judgment against Gulley on her breach of contract claim and awarded State Farm its costs
of court plus interest. Gulley now appeals.
Gulley raises two issues on appeal: (1) whether the trial court abused its discretion by
admitting the expert testimony by King, State Farm’s engineer, because it was not relevant and
reliable; and (2) whether the jury’s finding that the plumbing leaks did not cause the foundation
movement which resulted in the home’s interior damage is against the great weight and
preponderance of the evidence, i.e., not supported by factually sufficient evidence.
ADMISSION OF EXPERT TESTIMONY – PHIL KING
In her first issue, Gulley challenges three particular opinions testified to by King:
* that the 2008 pre-repair elevations showed “no heave” at the site of the plumbing
leaks or center drain line, and therefore the leaks were not the cause of the excessive
foundation movement and interior damage;
* that the cause of the excessive foundation movement and interior damage was
seasonal moisture fluctuations and migration within the clay soil which the under-
constructed foundation was not stiff enough to withstand; and
* that the 2013 post-repair elevations show the foundation has continued to move
significantly, which confirms that the damaging foundation movement was due to
seasonal moisture changes, not the plumbing leaks.
Gulley concedes that King was well qualified as an expert, but argues the trial court should
have excluded the above testimony because (1) it was speculative and conclusory, and thus not
relevant, and (2) it was not reliable because it was not based on reliable scientific data and
methodology, and the analytical gaps between the data/methodology and opinions were too great.
To be admissible as expert testimony, a witness must be (1) qualified as an expert, and (2) his
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testimony must be relevant and based on a reliable scientific foundation. TEX. R. EVID. 702
(requiring the proffered expert testimony to be “scientific, technical, or other specialized
knowledge” that will assist the trier of fact in understanding the evidence or determining a fact in
issue); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (holding
that, in addition to qualifications, Rule 702 requires the proponent to show the expert’s testimony
is relevant to the issues in the case and is based on a reliable foundation).
Standard of Review In determining the admissibility of expert testimony, the trial
court has broad discretion and accordingly we review its ruling for an abuse of discretion. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). In its role as gatekeeper, the trial court
is only required to ensure that the expert testimony is based on a reliable foundation and is relevant
to the issues in the case. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex.
1998). The trial court does not determine whether the expert’s opinion is correct, but only whether
the analysis used to reach the expert’s conclusion is reliable. Id.; Exxon Pipeline Co. v. Zwahr, 88
S.W.3d 623, 629 (Tex. 2002).
Preservation of Error The rule on preservation of error regarding the reliability of
expert testimony is that a challenge to the underlying methodology, technique, or foundational
data used by the expert must be preserved by a specific, timely objection to permit the trial court
to evaluate the scientific methodology and data in its role as gatekeeper. Coastal Transp. Co., Inc.
v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (trial objection also ensures a
full record will be developed on the issue). A trial objection is not required, however, to preserve
a challenge to speculative or conclusory expert testimony which is non-probative on its face. Id.
at 232 (conclusory expert testimony is not relevant evidence and cannot support a judgment);
accord City of San Antonio v. Pollock, 284 S.W.3d 809, 817 (Tex. 2009).
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Gulley filed a pretrial motion to exclude the following opinions by King: (i) that the
foundation was under-designed and under-constructed which contributed to the excessive
movement and interior damage on the ground that the opinion had “no factual basis” and was
“based on flawed reasoning,” and was therefore unreliable; and (ii) that the foundation continued
to move excessively after the piering and plumbing repairs, which supports his conclusion that the
plumbing leaks did not cause the initial movement and interior damage, on the ground that the
post-piering movement was “not relevant to show the initial cause of foundation movement before
repairs.” Gulley’s motion also objected to King’s opinion concerning “fill settlement” as
speculative and sought to prohibit the use of his demonstrative 3-D elevation model; however,
neither of these arguments are relevant to this appeal. 4 At the conclusion of the Daubert 5 hearing,
the trial court denied Gulley’s motion to exclude the challenged portions of King’s testimony.
Gulley did not raise any additional objections during King’s testimony at trial. However, after
State Farm closed, Gully moved to strike King’s testimony concerning post-piering foundation
movement, arguing it was “not the same foundation” after installation of the piers and repair of
the plumbing leaks, and that King “could not explain” where he saw 5.4 inches of new movement
on the 2013 elevations. The trial court denied the motion.
Thus, the record shows Gulley presented a trial objection to King’s underlying
methodology and foundational data only with respect to his opinions about (i) the foundation being
under-constructed for the clay soil, and (ii) the foundation’s continued excessive movement after
repairs. As to King’s other opinions challenged on appeal, that there was no “heave” at the site of
the leaks or center drain line and that seasonal moisture fluctuations and migration caused the
4
Gulley’s brief contains some references to King’s “fill settlement” theory, but ultimately both sides agree that fill
settlement was a non-issue with respect to causation of the current interior damage.
5
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
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excessive foundation movement and interior damage, Gulley is limited to showing on the face of
the record that these opinions were conclusory. Coastal Transp., 136 S.W.3d at 232-33; Pollock,
284 S.W.3d at 817.
Analysis We have determined that in these types of cases involving challenges to
expert testimony about the cause of foundation damage, whether from plumbing leaks, seasonal
moisture, or other causes, Gammill provides the applicable analysis. United Servs. Auto. Ass’n v.
Pigott, 154 S.W.3d 625, 630 (Tex. App.—San Antonio 2003, judgm’t withdrawn by agr.) (citing
Gammill, 972 S.W.2d at 727); State Farm Lloyds v. Mireles, 63 S.W.3d 491, 499 (Tex. App.—
San Antonio 2001, no pet.). Thus, as the proponent of the expert testimony, State Farm was
permitted to show the relevance and reliability of King’s testimony through “his experience, skill
and consideration of whether his analysis is grounded in scientific methods and procedure.”
Gammill, 972 S.W.2d at 726-27; Mireles, 63 S.W.3d at 499.
At the Daubert hearing, as well as at trial, King testified that he is a civil engineer with
specialties in geotechnical engineering and construction materials engineering and has
approximately 30 years’ experience. He explained that geotechnical engineering involves
studying and designing for the interaction between structures and the earth. As part of a committee,
King authored guidelines for the proper design and repair of residential foundations to be used by
the Texas State Board of Professional Engineers. King also holds several patents in the field, has
published multiple articles and papers in professional journals, has taught college level engineering
courses, and has been honored for his work. King stated he has inspected thousands of residential
foundations and testified at many trials. Gulley’s attorney conceded that King is more than
qualified to testify as an expert on residential foundation issues.
King testified that he was retained in this case by State Farm to evaluate Gulley’s residence
to determine if the foundation movement was caused by the reported plumbing leaks. At the
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Daubert hearing, King described the generally accepted methodology used by civil engineers in
conducting a forensic evaluation of a slab foundation. King stated that the evaluation involves
visiting the site and physically inspecting the slab itself, “looking at the performance of the slab
and the factors that have influenced the movement of the slab,” along with taking land survey
elevations of the interior and exterior of the home. King testified that he performed two interior
and exterior inspections at Gulley’s house, the first in 2008 before any foundation repairs and the
second in 2013, after the repairs and before trial. He took photos and obtained elevations from
AccuTech Consultants each time he visited the site. AccuTech used a computer program to create
a diagram showing the mathematical elevation points as topographic contour lines; Bradley also
used this contour diagram. King reviewed the AAA Auger and Carey plumbing reports, including
a diagram of the house that depicts the location of the plumbing lines under the slab; he also spoke
to Mr. Carey before trial. King reviewed Bradley’s deposition and two reports, Bradley’s soil
sample showing the clay had “moderately high” plasticity, and the elevations used by Bradley
(taken by Northstar). King also reviewed the elevations by Westbrook Engineering after the
plumbing was repaired and the foundation was piered by Mitchco. In all, King reviewed five sets
of elevations taken between 2008 and 2013 and their related contour diagrams. In addition, King
reviewed Mrs. Gulley’s deposition. Finally, King testified that he relied on engineering principles
contained in various manuals and treatises that are generally accepted in the civil engineering
industry, and on his own experience in performing thousands of residential foundation inspections.
King issued his first report in December 2009 and a supplemental report in April 2013. His opinion
remained the same between both reports—that the excessive foundation movement was caused by
seasonal moisture changes, not the plumbing leaks. King’s 2013 report added an opinion that the
foundation was “under-designed and under-constructed” for the area’s clay soil and a finding that
the foundation had continued to move excessively five years after the piering and plumbing repairs.
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In sum, King’s investigation mirrored Bradley’s investigation with both engineers
inspecting the site twice, obtaining elevations each time, and reviewing the plumbers’ findings and
diagrams, and each other’s expert reports. One difference was that Bradley conducted his own
soil test which showed the clay soil generally adjacent to the house has “high plasticity,” meaning
it is highly reactive to moisture. King did not conduct his own soil test, but stated he reviewed the
test conducted by Bradley and he agreed with the results showing the clay soil around the Gulley
house is highly plastic. Another difference was that King had AccuTech produce contour line
diagrams from the numerical elevation surveys, which Bradley then used as well.
A. Were King’s Opinions Conclusory?
Gulley challenges as conclusory King’s opinions that (1) there was no “heave” at the site
of the leaks or along the center drain line, and (2) that seasonal moisture fluctuations and migration
caused the excessive movement of the foundation and the interior damage. Gulley asserts those
opinions were based on “unfounded or false assumptions” and consist of “bare conclusions and
speculation” which were contradicted by the actual facts and scientific data; therefore, the opinions
did not constitute relevant or competent evidence and cannot support the judgment. See Robinson,
923 S.W.2d at 557 (“Scientific evidence which is not grounded ‘in the methods and procedures of
science’ is no more than ‘subjective belief or unsupported speculation.’”) (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)); see also Coastal Transp., 136 S.W.3d at
232.
To be relevant, the expert testimony must bear a relationship to the issue in the case so that
the testimony will aid the jury. Gammill, 972 S.W.2d at 720. An expert opinion is conclusory
when it is offered with no factual substantiation. Coastal Transp., 136 S.W.3d at 232; State Farm
Lloyds v. Hamilton, 265 S.W.3d 725, 733 (Tex. App.—Dallas 2008, pet. dism’d). An opinion is
not conclusory if there is “a reasoned basis which the expert, because of his ‘knowledge, skill,
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experience, training, or education,’ is qualified to state.” United Servs. Auto Ass’n v. Croft, 175
S.W.3d 457, 464 (Tex. App.—Dallas 2005, no pet.) (quoting Burrow v. Arce, 997 S.W.2d 229,
236 (Tex. 1999)). An expert must explain how he reached his conclusion. Croft, 175 S.W.3d at
464. In evaluating whether the expert’s testimony is conclusory, we look to the entire record, not
to statements in isolation. Id. Opinion testimony that is conclusory or speculative is not relevant
evidence and cannot support a judgment. Coastal Transp., 136 S.W.3d at 232; Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997); see also Russell Equestrian Ctr., Inc.
v. Miller, 406 S.W.3d 243, 247 (Tex. App.—San Antonio 2013, no pet.).
(1) No “Heave” at Site of Plumbing Leaks or Center Drain Line
The plumbing reports showed the two leaks in the drain line were located underneath the
hall bathroom at the south wall of the house; the second leak was approximately four feet away
from the hall toilet. Both King and Bradley agreed that, under generally accepted scientific
principles, there would be a “heave” or rise in the foundation above the plumbing leaks if they
were the cause of the foundation movement because the clay soil would absorb the water from the
leak and expand, pushing the foundation upward. However, based on King’s review of the 2008
elevations by AccuTech and Mitchco, as well as Bradley’s 2008 elevations by Northstar, King did
not see a “heave” at the site of the plumbing leaks or along the center drain line of the house. King
read the three sets of 2008 elevations and the contour diagrams based on the elevation
measurements as showing up-and-down distortion or flexing all across the slab; he stated there
was no consistent heave at the leak-site or ridge along the center line of the house. 6 King explained
that, to the contrary, the elevations and line contours showed that the high point of the foundation
6
King explained the difference between foundation movement that results in tilting of the foundation as a unit,
comparing it to how a battleship moves on waves, and “differential” foundation movement that results in flexing and
bending of parts of the foundation, comparing it to how a rubber raft moves on waves with one part rising while the
other part falls simultaneously.
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was in the kitchen where there were no plumbing lines, and that the hall bathroom where the leaks
and lines were located was actually in a relatively low spot. The center of the house was not
consistently raised up along the center drain line; rather, the elevation measurements in the center
of the house fluctuated up and down. King stated that in his experience inspecting thousands of
foundations he has seen a lot of plumbing leaks cause foundation damage and that the tell-tale
“heave” is easy to spot; he did not see it at the Gulley residence.
Gulley argues that King’s opinion that there was no “heave” at the site of the plumbing
leaks or along the center drain line was speculative and conclusory because King did not know the
pre-leak elevations at the site of the leaks or along the center drain line. As discussed below, King
based his opinion that there was no “heave” at the leak-site or along the center drain line on a
comparison of different locations within the home’s interior as shown on three sets of 2008
elevations and contour diagrams. Neither King nor Bradley knew the initial elevations of the
interior prior to the plumbing leaks; therefore, neither expert attempted to compare the 2008
elevations to the elevations (unknown) right after construction.
Gulley also asserts that the slab was irregular, not flat, when initially poured, and that
King’s opinion is speculative because it assumes the slab started out flat. First, Gulley cites us to
no evidence proving the slab was poured irregularly when the house was constructed in 1995.
Second, although both experts agreed that during construction slabs are generally poured flat
within about a two-inch variation, neither stated that the scientific principle of heaving occurring
at the site of a plumbing leak was dependent on the slab being flat, or that heaving could not be
seen even with an irregular slab. King in particular explained that it was easy to use forms to level
the slab when first poured, and that it would be “extremely unlikely” for a slab to initially be
poured five to eight inches out of level because that would be very noticeable. Finally, Gulley
argues that King’s opinion discounts the fact that the center of the home showed significant
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damage from foundation movement, and that the hall bathroom had cracking in the walls and floors
and separation of the ceiling from the walls. King did not discount the significance of the damage
to those areas of the home, but emphasized that the same type of significant cracking damage was
present across the entire home, not just in those areas.
We disagree that King’s “no heave” opinion was conclusory. King described the facts
upon which he relied as the three sets of 2008 elevations and the three contour diagrams that
AccuTech prepared based on those elevation values, and explained his reasoning process in
examining those elevations and diagrams within the context of the accepted scientific principle of
heaving to reach his conclusion that no “heave” was present.
(2) Seasonal Moisture Fluctuations and Migration as Cause of Interior Damage
King testified that, in his experience, foundation movement caused by moisture is the main
cause of the type of cracking damage observed in the Gulley home. The two main sources of water
underneath a foundation are plumbing leaks and seasonal moisture fluctuations in the ground,
which can be affected by vegetation, weather conditions like drought and rainfall, and other
factors. Having ruled out the plumbing leaks as the cause of the foundation damage because there
was no “heave,” King turned to examine seasonal moisture fluctuations as the cause of the damage.
King reviewed Bradley’s soil test and agreed with the finding that the clay soil at the Gulley
home has “high plasticity,” which he stated means that it is highly reactive to moisture. King
explained that, due to its composition, clay soil naturally attracts water molecules; one cubic foot
of clay soil contains between four to five gallons of water. The clay soil is constantly in a state of
flux, expanding as it absorbs water and contracting as the water evaporates—a scientific process
involving the interplay between evapotranspiration and precipitation. King further testified that
once an area of soil becomes saturated, the water is pulled toward drier areas of soil and the
“moisture front” will migrate or spread to the drier areas. King agreed with Bradley that seasonal
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moisture will initially affect the perimeter of a house plus about five to eight feet inside the
perimeter. But, King also opined that seasonal moisture can migrate as far inward as the center of
the house depending on the moisture content of the soil. King explained that the expansion of the
soil underneath the foundation can cause a rise, while the contraction of the soil can cause the
foundation to fall, creating a flexing or bending movement and causing “distortion” across the
slab. King testified that, based on his review of the 2008 elevations and contour lines, he saw
“differential movement” or “distortions” all across the Gulley foundation where the slab had flexed
up or down; the distortions were not limited to any one area of the home but were present
throughout the entire home, as was the cracking damage. King stated this type of differential
movement and damage was consistent with foundation movement caused by seasonal moisture
changes. King further testified that well-designed and constructed foundations are able to
withstand the expanding and contracting forces of clay soil as it reacts to naturally occurring
moisture changes. Based on the wide-spread and severe distortions shown on the elevations, King
reasoned that the Gulley foundation was too shallow and insufficiently rigid to withstand the
natural expansion and contraction of the clay soil over time. Therefore, King concluded that the
excessive foundation movement and resulting interior damage was caused by seasonal moisture
fluctuations in the soil which the under-constructed foundation was not able to withstand.
Gulley argues that King’s causation opinion based on seasonal moisture is not supported
by any facts or reasoning, but is merely speculative and conclusory. Specifically, Gulley argues
that King’s theory that seasonal moisture migrated all the way to the center of the home is contrary
to the established scientific principle that seasonal moisture generally affects only the area within
five to eight feet inside the home’s perimeter. Gulley also asserts that King did not present any
supporting treatise or authority for his migration theory. As noted, King agreed with the idea that
seasonal moisture first affects the perimeter and the five to eight-foot area inside the perimeter.
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He used the principle of how clay soil attracts water and pulls water toward the soil’s dry areas to
explain how a moisture front would move from a saturated area to a drier area, thus moving or
migrating inward once the perimeter soil became saturated. As support for this idea of seasonal
moisture migration beyond the perimeter, King cited a manual published by the Building Research
Advisory Board, a division of the National Engineering Council, which discusses differential
movements across a house due to moisture migration, and provided a page with explanatory
diagrams from the lengthy manual at trial. Gulley argues that the manual was published in 1968
and that King provided only a single page with diagrams and no explanatory text. However, King
stated on the record that he had the entire manual in court and offered to go through it with Gulley’s
counsel in front of the jury, but counsel declined. In addition to that manual, in his first report
King cited a source titled “Expansive Soils – Problems and Practice in Foundation and Pavement
Engineering,” published in 1992, to support the concept of groundwater’s ability to migrate
laterally. In fact, King’s report cites several professional engineering texts in support of the section
on “Moisture Migration Movement.” Finally, Gulley argues that King’s opinion on seasonal
moisture migration conflicts with the fact that the house was protected on two perimeters by the
concrete slabs for the carport and patio. However, the floor plan attached to King’s report reflects
the carport and patio, and King stated at trial that the effect of those concrete slabs was not known.
Bradley too stated that he did not know the protective effect of the carport and patio slabs.
King provided the factual and logical foundation as well as supporting engineering
principles and texts for his testimony about seasonal moisture fluctuations and migration as the
cause of the damaging foundation movement. We thus disagree that King’s opinion on this issue
was conclusory.
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04-13-00892-CV
B. Were King’s Opinions Reliable?
As noted, Gulley preserved the right to challenge the methodology, technique, and
foundational data underlying King’s opinions that (1) the foundation was under-designed and
under-constructed for the clay soil, and (2) there was post-repair excessive movement in the
foundation. Specifically, Gulley argues these opinions were not reliable because they were not
based on scientific data and methodology, and even if they were, the analytical gap between the
data/methodology and opinions was too great.
Under a Gammill analysis, the following factors are used to determine whether an expert
opinion is unreliable and should be excluded:
(a) If the foundational data underlying the opinion is unreliable;
(b) If the methodology used to interpret the underlying data is flawed;
(c) Notwithstanding the validity of the underlying data and methodology, if there
is an analytical gap between those and the expert opinion; or
(d) If the expert fails to rule out other plausible causes.
Gammill, 972 S.W.2d at 727; see Pigott, 154 S.W.3d at 630; Mireles, 63 S.W.3d at 494-95; see
also Hamilton, 265 S.W.3d at 730. Gulley does not challenge the reliability of King’s opinions
on the basis that he failed to rule out other plausible causes of the damaging foundation
movement. 7
(1) Foundation was Under-Designed and Under-Constructed
Gulley argues that King’s opinion that the foundation was under-designed and under-
constructed is unreliable because he had no knowledge of the design or construction process used
in 1995 when the home was built; thus, there is an analytical gap between the facts and King’s
opinion. King conceded that he did not have the blueprints and did not analyze the slab beyond
making a visual inspection on his two site visits and studying the 2008 and 2013 elevations and
7
The record shows that King did rule out other plausible causes for the foundation damage.
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contour diagrams. However, other trial evidence showed, and King was aware, that Mr. Gulley
had designed and constructed the home without a professional engineer and without any code
inspections. As discussed above, King testified that he made a logical deduction that the Gulley
foundation was not properly designed or constructed to withstand the expansive effects of the clay
soil based on the 2008 elevation measurements and contour lines showing differential movement
(distortion) across the entire slab. King further testified that the elevations taken in 2013, five
years after the piers were installed below the foundation and the leaks were repaired, showed the
foundation had continued to move excessively. King explained that this mathematical evidence
of continued differential movement supported his opinion that the foundation was not sufficiently
strong or rigid to withstand the natural soil movement, even after piering. We disagree that King’s
testimony on this issue was unreliable due to analytical gaps or insufficient foundational data or
methodology.
(2) Post-Repair Movement of the Foundation
Finally, Gulley challenges King’s opinion that the foundation continued to move
excessively after the repairs as lacking a credible factual foundation and methodology and
suffering from analytical gaps. King testified that the 2013 elevations showed the foundation had
continued to move excessively, more than five inches, after the piering and plumbing repairs. King
stated that such post-repair movement confirmed his opinion that the leaks did not cause the
foundation movement and interior damage, and that it was due to seasonal moisture changes in the
soil.
Gulley’s expert, Bradley, disagreed that the 2013 elevations showed substantial post-repair
slab movement. Gulley argues that King’s opinion was full of analytical gaps because he was not
able to explain at trial how the elevations and diagrams showed five inches of slab movement
during the period after the repairs. King testified that he took the elevation measurements obtained
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by Westbrook Engineering a few days after the piering was completed in 2008 and compared them
to the new elevations that AccuTech took for him in 2013. AccuTech then used a computer
program to translate the elevation data points into a contour line diagram which depicts foundation
movement by how close together the lines are as well as the number values listed for the elevation
points. King explained that the elevation data points are “quantitative measurements” and
“detailed mathematical calculations” that are then plotted as the contour lines on the diagrams.
King also had AccuTech prepare a comparison contour diagram titled “Relative Difference
Elevations” by subtracting the 2008 Westbrook elevations from the 2013 AccuTech elevations;
the positive numbers reflect upward movement of the foundation, while the negative numbers
reflect downward movement. All of these elevations and contour diagrams are attached to King’s
reports. When asked on cross-examination whether he could re-calculate the numbers showing
movement, King stated that he could do so but that it would take “some time,” about an hour;
Gulley’s counsel declined to ask him to do the calculation in court. Gulley characterizes this as
King’s inability to “show his work” and explain his analysis. To the contrary, when asked on
cross-examination to explain where he found five inches of movement on the diagram, King spent
several pages of record explaining how the comparison of the 2008 and 2013 elevations was done
and explaining that a “0.0” value meant there was no movement, while the “4.0” value noted in a
corner of the house meant there was upward movement. King explained that the presence of a
contour line in a space on the diagram meant there was movement, either upward or downward.
King testified that the elevation measurements and contour diagram showed there was substantial
continued movement across the foundation, on both the piered parts and the unpiered parts.
Finally, Gulley argues that King’s comparison is faulty because after piering the foundation
was not the same foundation on which the 2008 elevations were based. In other words, Gulley
argues it was an unfair and unreliable comparison. However, the trial evidence showed that not
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all areas of the foundation were piered. Sheet 1 attached to King’s 2013 report is a diagram
prepared by AccuTech that shows the locations of the exterior and interior piers. It is apparent
that the southern half of the home containing the two bathrooms and bedrooms had no interior
piers installed. King testified that, therefore, that un-piered portion of the slab would still be resting
on the ground, or “on grade,” and would be the same concrete slab with the same stiffness, or lack
thereof, as before any repairs. King testified that he disagreed with the use of piers to repair the
foundation, citing as support the evidence that the foundation was continuing to move
substantially. We conclude that King’s opinion on this issue was not unreliable due to analytical
gaps or lack of foundational data or scientific methodology.
Conclusion In its role as gatekeeper, the trial court was only required to ensure that
King’s expert testimony was based on a reliable foundation and was relevant to the causation issue
in the case. Gammill, 972 S.W.2d at 728. The trial court’s role is not to determine whether the
expert’s opinion is correct, but only whether the analysis used to reach the expert’s conclusion is
reliable. Id.; Zwahr, 88 S.W.3d at 629. For the reasons detailed above, we hold that King’s
analysis was sufficiently reliable and his opinions were not speculative or conclusory.
FACTUAL SUFFICIENCY - CAUSATION
As discussed, supra, Gulley initially argues that King’s testimony should have been
excluded and, even if admissible, was merely conclusory and cannot support the jury’s verdict.
See Coastal Transp., 136 S.W.3d at 232. We have rejected that argument. In her second issue,
Gulley argues that, even if King’s testimony was properly admitted and not conclusory, the other
evidence and her expert Bradley’s testimony and conclusion on causation was more credible and
reliable than King’s testimony and conclusion; therefore, the jury’s finding that the leaks were not
the cause of the interior damage is against the great weight and preponderance of the evidence.
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Standard of Review In evaluating factual sufficiency, we consider all the evidence and
determine if the evidence supporting the jury finding is so weak, or so against the overwhelming
weight of the evidence, that the finding is clearly wrong and manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). Here, because Gulley had the burden of proof on the adverse finding
she must show it is against the great weight and preponderance of the evidence to prevail on her
factual sufficiency challenge. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In
conducting this review, we may not pass on the credibility of the witnesses or substitute our
judgment for that of the trier of fact, even if a different answer could be reached upon review of
the evidence. Id.
Analysis Gulley argues that the great weight and preponderance of the evidence
supports a finding that the leaks caused the foundation movement and interior damage based on
Bradley’s expert testimony, along with Duran’s testimony and report finding a causal link between
the plumbing leaks and the foundation movement at the time State Farm paid Gulley’s first claim.
Gulley asserts that Bradley’s expert testimony was more credible and reliable than King’s
testimony which was the only evidence that supports the jury’s finding.
We agree that King’s expert testimony, reports, and attached diagrams constitute the
evidence in support of the jury’s finding that the plumbing leaks did not cause the cracking of the
walls, floor, and ceiling inside the house. We have overruled all of Gulley’s challenges to King’s
opinions and determined that it was all properly admitted and not conclusory. As detailed above,
Bradley’s and King’s opinions differed on several points. Bradley testified that the 2008 elevations
and contour line diagrams showed a rise or “heave” in the middle of the house along the center
drain line; King disagreed that the 2008 elevations showed a “heave” along the center line or at
the site of the leaks, as would be expected if the leaks had caused the foundation damage. Bradley
did not believe there was any flaw in the design of the slab or that the foundation was not well
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04-13-00892-CV
constructed. The two experts also differed as to the effect of seasonal moisture changes, with King
testifying that natural moisture could migrate underneath the slab to the center of the home and
Bradley testifying that natural moisture can only penetrate about five feet inside the perimeter of
the slab. Finally, while King read the 2013 elevations as showing significant foundation
movement was still occurring five years after the repairs, Bradley stated the 2013 elevations
showed no such movement.
We must defer to the jury’s credibility assessments and resolution of conflicts in the
evidence when weighing factual sufficiency. City of Keller v. Wilson, 168 S.W.3d 802, 819, 821
(Tex. 2005) (in factual sufficiency review, appellate court does not substitute its judgment for that
of the jury, as the jury is the sole judge of the credibility of the witnesses and the weight to be
given their testimony). Resolution of the conflicts in the trial evidence, including the testimony of
the two engineers, was solely within the jury’s role as the fact finder. Allstate Tex. Lloyds v.
Mason, 123 S.W.3d 690, 702 (Tex. App.—Fort Worth 2003, no pet.) (when the parties present
competing expert witnesses, the burden falls on the jury to determine which expert opinion is more
credible). We hold King’s expert testimony and ultimate opinion that the leaks did not cause the
cracking damage inside the home, which the jury believed, provided factually sufficient evidence
to support the jury’s finding.
CONCLUSION
Based on the above reasons, we overrule Gulley’s appellate issues and affirm the trial
court’s judgment.
Rebeca C. Martinez, Justice
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