Zhaohong Wu and Yanjing Zhou, Individually and as Next Friends of K. W. and E. W., Their Minor Children v. Lumber Liquidators, Inc., Wood Floor Artisans, a General Partnership Composed of Victor Martinez-Medina, Individually, and Amber Lee Martinez, Individually ( 2023 )

Affirmed in Part, Reversed and Remanded in Part, and Majority and
Dissenting Memorandum Opinions filed March 30, 2023.
In The
Fourteenth Court of Appeals
NO. 14-20-00765-CV
ZHAOHONG WU AND YANJING ZHOU, INDIVIDUALLY AND AS NEXT
FRIENDS OF K. W. AND E. W., THEIR MINOR CHILDREN, Appellants
V.
LUMBER LIQUIDATORS, INC. AND WOOD FLOOR ARTISANS, A
GENERAL PARTNERSHIP COMPOSED OF VICTOR MARTINEZ-
MEDINA, INDIVIDUALLY, AND AMBER LEE MARTINEZ,
INDIVIDUALLY, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2016-08354
DISSENTING MEMORANDUM OPINION
I respectfully dissent from the majority’s affirmation of summary judgment
in Appellees’ favor based on (1) Appellees’ failures to comport with Texas Rule of
Civil Procedure 166(a) and (2) disclaimer.
I. Rule 166(a)
First, I agree with Appellants’ contention that Appellees’ motions for
summary judgment failed to comport with Texas Rule of Civil Procedure 166a.
While Appellees moved for summary judgment on numerous grounds, they
expressly attacked Appellants’ expert reports from Paula Vance and Scott
McMahon based on explanations and arguments in their motions to exclude their
testimony.1 After a de novo review, I conclude Appellees’ request for summary
judgment failed to comply with Texas Rule of Civil Procedure 166a(c). See Tex.
R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific
grounds therefor.”); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 340-41 (Tex. 1993) (“If this court intended Rule 166a(c) to permit a summary
judgment movant to place, or possibly hide, grounds for summary judgment in a
brief filed in support of the motion or in accompanying summary judgment
evidence, the Rule could have easily provided: ‘The motion for summary
judgment or the brief in support thereof or the summary judgment evidence shall
state the specific grounds therefor.’ Rule 166a(c), however, does not so provide
. . . . Although Rule 166a(c) is an admittedly rigorous rule, it must be applied as
written.”) (emphasis in original) (quoting Alvarado v. Farah Mfg. Co., Inc., 830
S.W.2d 911, 915 (Tex. 1992) (“We are not free to disregard . . . [the rule’s] plain
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Specifically, Appellees argued:
• “Vance is the sole expert regarding this causation theory. Yet as explained in
LLI’s Motion to Exclude the Opinions, Testimony, and Report of Paula
Vance, Vance’s opinions regarding the source of moisture that caused the
mold are speculative, unreliable, outside Vance’s expertise, and thus
inadmissible.”; and
• “Plaintiffs rely solely on the opinions of Dr. Scott McMahon to claim that
exposure to mold caused the alleged personal injuries for which plaintiffs seek
damages in this action . . . . But as explained in LLI’s Motion to Exclude the
Testimony Opinions, and Report of Scott McMahon, McMahon’s opinions
regarding causation are speculative and unreliable, and thus inadmissible.”
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language. Nor should we revise the rule by opinion.”)).
Appellees’ failure to comply with Texas Rule of Civil Procedure 166a
means that no relevant burden ever shifted to Appellants. Amedisys, Inc. v.
Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511-12 (Tex. 2014) (“[I]f the
movant does not satisfy its initial burden, the burden does not shift and the non-
movant need not respond or present any evidence.”) (citing City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); State v. Ninety
Thousand Two Hundred Thirty-Five Dollars and No Cents in U.S. Currency
($90,235), 390 S.W.3d 289, 292 (Tex. 2013)); Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217, 222-23 (Tex. 1999) (“The nonmovant has no burden to respond to a
summary judgment motion unless the movant conclusively establishes its cause of
action or defense.”) (citing Oram v. Gen. Am. Oil Co. of Tex., 513 S.W.2d 533, 534
(Tex. 1974) (per curiam); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972)); see
also Amedisys, Inc., 437 S.W.3d at 511-12 (“This is because ‘summary judgments
must stand or fall on their own merits, and the non-movant’s failure to answer or
respond cannot supply by default the summary judgment proof necessary to
establish the movant’s right’ to judgment.”) (citing McConnell, 858 S.W.2d at 343
(citing Clear Creek Basin Auth., 589 S.W.2d at 678)). Therefore, the trial court
erred when it granted summary judgment in Appellees’ favor.
II. Property damage
After a de novo review, I perceive the controlling questions concerning
Appellants’ property damage claim to be whether (1) there is more than a scintilla
of evidence tending to prove that Appellees’ acts or omissions were a substantial
factor in bringing about the injuries and (2) the harm would have occurred without
those acts or omissions. See Windrum v. Kareh, 581 S.W.3d 761, 777 (Tex. 2019).
On appeal, Appellants argue the trial court erroneously resolved both of these
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questions in Appellees’ favor; I agree.
Appellants introduced evidence from Rick Jones, a flooring expert. Jones
concluded that (1) “the bamboo flooring cupped and buckled consistent with
excessive moisture from the concrete subfloors”; (2) Appellees’ negligence caused
excessive moisture; (3) Appellees failed to “perform the required ASTM moisture
testing”; (4) “the adhesive was not applied as required”; and (5) excessive water
was mixed into the float. Appellants also relied upon an expert report from Inspect
Solutions (retained by Appellees) opining that failure “to properly test concrete
slabs prior to installation of Bamboo flooring will result in flooring being installed
into a wet environment which produces moisture related issues as in this case.”
Appellants further produced a report from another of Appellees’ experts, MAPEI;
that report acknowledged possible causes of the mold included “failure to test
concrete slabs”, “lack of expansion space”, and “failure to properly . . . acclimate”.
The majority’s opinion even concedes Inspect Solution’s report concludes “[a]ll of
the issues above are either directly responsible or a contributing factor in the
issues” of which Appellants complain and the issues are “installation related.”
When I take these propositions as true and resolve any doubts in Appellants’
favor (see Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680
(Tex. 2017)), this evidence constitutes at least a scintilla of evidence because it
creates more than a mere surmise of suspicion tending to prove cause in fact and
foreseeability concerning Appellants’ property damage claims. See id. at 680-81;
Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 621 (Tex. 2004) (“The scintilla rule,
although having its origin at a much earlier date, was firmed up in Texas in Joske
v. Irvine [44 S.W. 1059 (Tex. 1898)]. The rule may be stated in these words:
when the evidence offered to prove a vital fact is so weak as to do no more than
create a mere surmise or suspicion of its existence, the evidence is, in legal effect,
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no evidence, and will not support a verdict or judgment.”) (quoting Robert W.
Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.
Rev. 361, 363 (1960)).
III. Disclaimer
Finally, the majority opinion (1) concedes “there is no evidence in the record
to show that appellants were provided with the Home Improvement Agreement
before the performance or payment for services”; (2) cites Womco, Inc. v. Navistar
International Corp., 84 S.W.3d 272, 279 (Tex. App.—Tyler 2002, no pet.), for the
proposition that fact issues preclude summary judgment where there is no evidence
that the disclaimer in the contract was disclosed or communicated prior to the
completion of the contract for sale; and (3) concludes the disclaimer at issue is
nonetheless “effective for the implied warranty of fitness for particular purpose.” I
believe the majority’s analysis is facially erroneous and contrary to the authority it
has elected to cite. See id.; see also Tex. Bus. & Com. Code Ann. § 2.316 cmt. 1
(one of the underlying purposes of the statutory scheme concerning the exclusion
and modification of warranties was to protect buyers from surprise by permitting
the exclusion of implied warranties); Klo-Zik Co. v. Gen. Motors Corp., 677 F.
Supp. 499, 508 (E.D. Tex. 1987) (“In order for the disclaimer to be effective, the
plaintiffs must have had an opportunity to examine it prior to consummation of the
contract for sale.”) (citing Mercedes-Benz of N. Am., Inc. v. Dickenson, 720
S.W.2d 844, 852 (Tex. App.—Fort Worth 1986, no writ); Willoughby v. Ciba-
Geigy Corp., 601 S.W.2d 385, 388 (Tex. App.—Beaumont 1979, writ ref’d
n.r.e.)); Russell J. Weintraub, Disclaimer of Warranties and Limitation of
Damages for Breach of Warranty Under the UCC, 53 Tex. L. Rev. 60, 69 (1974)
(citing Dessert Seed Co. v. Drew Farmers Supp., Inc., 454 S.W.2d 307 (Ark.
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1970); Dougall v. Brown Bay Boat Works & Sales, Inc., 178 N.W.2d 217 (Minn.
1970)).
IV. Conclusion
Based on the foregoing, I respectfully dissent.
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Spain, and Hassan (Wise, J., majority).
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