Alberto R. Garza and Leticia I. Garza, Individually and as Next Friends of Alexandra I. Garza and Kassandra R. Garza v. Melden & Hunt, Inc.

ACCEPTED
13-14-00329-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/12/2015 6:14:57 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00329-CV
*** FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS1/12/2015 6:14:57 PM
THIRTEENTH COURT OF APPEALS DISTRICT
DORIAN E. RAMIREZ
CORPUS CHRISTI, TEXAS Clerk
***
ALBERTO R. GARZA, ET AL.,
Appellants
V.
MELDEN & HUNT, INC.,
Appellee
***
BRIEF OF APPELLEE
***
GONZALEZ, CHISCANO, ANGULO & THE LAW OFFICE OF JACQUELINE M.
KASSON, P.C. STROH, P.C.
Henry B. Gonzalez III Jacqueline M. Stroh
State Bar No. 00794952 State Bar No. 00791747
Taylor Williams 10101 Reunion Place, Suite 600
State Bar No. 24056536 San Antonio, Texas 78216
613 N.W. Loop 410, Suite 800 (210) 477-7416
San Antonio, Texas 78216 (210) 477-7466 (telecopier)
(210) 569-8500 jackie@strohappellate.com
(210) 569-8490 (telecopier)
hbg@gcaklaw.com
twilliams@gcaklaw.com
ATTORNEYS FOR APPELLEE, MELDEN & HUNT, INC.
APPELLEE CONDITIONALLY REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellee
presents the following list of all parties to the judgment and their counsel:
1. Appellants/Plaintiffs Below
Alberto R. Garza
Leticia I. Garza
2. Counsel for Appellants
Alberto T. Garcia, III Trial/Appellate Counsel
Adrian R. Martinez
Garcia & Martinez, L.L.P.
6900 N. 10th Street, Suite 2
McAllen, Texas 78504
albert@garmtzlaw.com
adrian@garmtzlaw.com
3. Appellee/Defendant Below
Melden & Hunt, Inc.
4. Counsel for Appellee
Henry B. Gonzalez III Trial/Appellate Counsel
Taylor Williams
Gonzalez, Chiscano, Angulo & Kasson, P.C.
613 N.W. Loop 410, Suite 800
San Antonio, Texas 78216
hbg@gcaklaw.com
twilliams@gcaklaw.com
Jacqueline M. Stroh Appellate Counsel
The Law Office of Jacqueline M. Stroh, P.C.
10101 Reunion Place, Suite 600
San Antonio, Texas 78216
jackie@strohappellate.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES................................................................................... vii
STATEMENT OF THE CASE .................................................................................xi
STATEMENT REGARDING ORAL ARGUMENT .......................................... xvii
RESPONSIVE ISSUES PRESENTED ............................................................... xviii
Issue No. 1:
Whether the Court should affirm the trial court’s summary judgment
in its entirety.
The Garzas failed to challenge every summary-judgment ground
asserted by Melden & Hunt and, thus, failed to challenge every
ground on which the trial court’s general summary-judgment grant
rests. Included among those grounds is the binding effect of the
Court’s prior opinion on the legal question of accrual pursuant to the
law-of-the-case doctrine and the resultant limitations bar to all of the
Garzas’ claims. Even assuming the Garzas had lodged an appellate
challenge to that ground, they nevertheless waived review by failing
to assert any challenge below in their summary-judgment response.
Instead, they rightly admitted the opinion’s binding and preclusive
effect.
Moreover, the Garzas waived the only appellate point they present on
appeal to challenge the summary judgment on limitations regarding
the characterization of the nuisance as temporary. Below, the Garzas
never complained in their summary-judgment response that the
nuisance in question should be characterized as temporary, never
argued for application of different accrual principles, and never
argued for use of a different accrual date other than the one employed
iii
by Melden & Hunt. They never identified the existence of any fact
issue; rather, they conceded and admitted both the permanent nature
of the nuisance and the propriety of summary-judgment on
limitations. Regardless, even if the Court were to review the Garzas’
otherwise inadequately briefed point, Melden & Hunt established its
entitlement to judgment as a matter of law by arguing limitations as
applicable to their nuisance claim and by proving accrual nearly a
decade before suit was filed. The Garzas’ own testimony admitted
chronic flooding to their property and home on a virtually annual
basis both before and after suit, allegedly from a permanent source –
establishing the permanent nature of the claimed nuisance as a matter
of law. ........................................................................................................ xviii
Issue No. 2:
Whether, at the least, the Court should affirm the trial court’s
summary judgment on the Garzas’ claim for exemplary damages.
In response to Melden & Hunt’s no-evidence motion on the Garzas’
claim for exemplary damages, the Garzas offered only a general
reference to the entirety of their summary-judgment evidence, with no
identification of which portions of that evidence purportedly raised
fact issues and with no delineation of what specific fact issues that
evidence supposedly raised. Additionally, the Garzas failed to plead
any basis for imputing liability for exemplary damages to the
corporate entity, failed to offer any response to Melden & Hunt’s no-
evidence motion on any imputation theory, and failed to make any
appellate challenge on that ground. Finally, the evidence cited in the
Garzas’ opening brief and otherwise offered by the Garzas is
incompetent and/or wholly insufficient to constitute any evidence –
much less clear and convincing evidence – of malice and gross
negligence. ................................................................................................. xviii
RESPONSE TO APPELLANTS’ STATEMENT OF FACTS ................................. 1
SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT AND AUTHORITIES ........................................................................ 8
iv
I. The Trial Court’s Summary Judgment in Favor of Melden & Hunt
Should Be Affirmed in Its Entirety.................................................................. 8
II. The Garzas Have Failed to Demonstrate Error in the Trial Court’s
Summary Judgment Grounded in Limitations .............................................. 11
A. The Garzas Have Failed to Attack All Bases for the Trial
Court’s Summary Judgment – Most Notably, the Preclusive
Effect of This Court’s Prior Opinion on Accrual – and the
Summary Judgment in Melden & Hunt’s Favor Must Therefore
Be Affirmed ......................................................................................... 11
B. Even Assuming the Garzas’ Appeal Encompasses a Challenge
to the Preclusive Effect of This Court’s Prior Opinion on
Accrual, the Trial Court’s Judgment Must Still Be Affirmed ............ 13
C. The Garzas Concede That the Trial Court Properly Granted
Summary Judgment on Virtually All of Their Claims and
Neglected to Raise Below (and Have Thus Waived) the Only
Issue in Avoidance They Now Assert on Appeal ............................... 17
1. The Garzas Failed to Assert Any Argument in Response
to the Summary Judgment That Its Nuisance Claim
Should Be Governed by Different Accrual Principles ............. 17
2. Regardless, Any Existent Nuisance Is Permanent as a
Matter of Law and Accrued with the First Flooding
Event, Which Occurred in 2000 at the Latest – Nearly a
Decade before the Garzas Filed Suit – Even Indulging the
Garzas’ Inadequate Briefing ..................................................... 22
III. The Garzas Have Also Failed to Demonstrate Error in the Trial
Court’s Summary Judgment on Their Claim for Exemplary Damages ........ 33
A. Because the Garzas Have No Claim for Actual Damages, the
Summary Judgment on Their Claim for Exemplary Damages
Must Be Affirmed ............................................................................... 33
B. Even Assuming That the Court Would Reverse the Trial
Court’s Judgment on the Garzas’ Nuisance Claim, Contrary to
v
the Court’s Prior Opinion, the Garzas’ Concessions and
Admissions, Governing Case Law, and the Record Evidence,
the Garzas Nevertheless Cannot Prevail on Their Claim for
Exemplary Damages............................................................................ 35
1. The Garzas Nowhere Pled or Offered Evidence to Impute
Liability for Exemplary Damages to Melden & Hunt .............. 35
2. The Garzas Failed to Explain in Their Response, Beyond
a General Reference to Their Summary-Judgment
Evidence, the Existence of Any Fact Issues on Their
Claim for Exemplary Damages and, Again, Present
Nothing for Review .................................................................. 37
3. The Governing Standard of Review of Melden & Hunt’s
No-Evidence Motion on Malice and Gross Negligence
Should Require Clear and Convincing Evidence ..................... 40
4. The Garzas Failed to Raise a Fact Issue on Malice or
Gross Negligence ...................................................................... 43
PRAYER .................................................................................................................. 48
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION ............................................................................................ 49
CERTIFICATE OF SERVICE ................................................................................ 49
APPENDIX ................................................................................................ A-1 to A-2
Melden & Hunt, Inc. v. Garza, No. 13-11-00594-CV,
2013 WL 3517743 (Tex. App. – Corpus
Christi, Jul. 11, 2013, no pet.) (mem. op.) .......................................... A-1
TEX. R. CIV. P. 166a ........................................................................................ A-2
vi
INDEX OF AUTHORITIES
Page
CASES
Affordable Motor Co., Inc. v. LNA, LLC,
351 S.W.3d 515 (Tex. App. – Dallas 2011, pet. denied)......................................21
AGD, L.P. v. Quest Principal Investments, Inc.,
No. 13-12-00720-CV, 2014 WL 6602314
(Tex. App. – Corpus Christi, Nov. 20, 2014, no pet.) ................................... 21, 22
Baldwin v. Northrop Grumman Information Technology,
No. 03-09-00654-CV, 2011 WL 182880
(Tex. App. – Austin, Jan. 21, 2011, no pet.) (mem. op.) ......................................13
Baxter v. Gardere Wynne Sewell LLP,
182 S.W.3d 460 (Tex. App. – Dallas 2006, pet. denied)............................... 20, 22
Branton v. Wood,
100 S.W.3d 645 (Tex. App. – Corpus Christi 2003, no pet.) ...............................46
Briscoe v. Goodmark Corp.,
102 S.W.3d 714 (Tex. 2003) ................................................................................14
City of Amarillo v. Ware,
120 Tex. 456, 40 S.W.2d 57 (1931) .....................................................................27
City of Houston v. Precast Structures, Inc.,
60 S.W.3d 331 (Tex. App. – Houston [14th Dist.] 2001, pet. denied) .................16
City of Princeton v. Abbott,
792 S.W.2d 161 (Tex. App. – Dallas 1990, writ denied) .....................................29
Clawson v. Wharton County,
941 S.W.2d 267 (Tex. App. – Corpus Christi 1996, writ denied) ........................36
Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238 (Tex. 2008) ......................................................................... 40, 46
vii
Cornerstones Mun. Utility Dist. v. Monsanto Co.,
889 S.W.2d 570 (Tex. App. – Houston [14th Dist.] 1994, writ denied) ..............21
D.R. Horton-Texas, Ltd. v. Markel Int’l Ins. Co.,
300 S.W.3d 740 (Tex. 2009) ................................................................................21
De La Pena v. Elzinga,
980 S.W.2d 920 (Tex. App. – Corpus Christi 1998, no pet.) ...............................24
Desiga v. Scheffey,
874 S.W.2d 244 (Tex. App. – Houston [14th Dist.] 1994, no writ) .....................26
DR Partners v. Floyd,
228 S.W.3d 493 (Tex. App. – Texarkana 2007, pet. denied) ...............................42
Durden v. City of Grand Prairie,
626 S.W.2d 345 (Tex. App. – Fort Worth 1981, writ ref’d n.r.e.) .......................29
Fein v. R.P.H., Inc.,
68 S.W.3d 260 (Tex. App. – Houston [14th Dist.] 2002, pet. denied) .................41
FFE Transp. Servs., Inc. v. Fulgham,
154 S.W.3d 84 (Tex. 2004)...................................................................................45
Forbes, Inc. v. Granada Biosciences, Inc.,
124 S.W.3d 167 (Tex. 2003) ......................................................................... 42, 43
Fort Worth Star-Telegram v. Street,
61 S.W.3d 704 (Tex. App. – Fort Worth 2001, pet. denied) ................................42
Freedom Newspapers of Tex. v. Cantu,
168 S.W.3d 847 (Tex. 2005) ................................................................................43
Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C.,
204 S.W.3d 473 (Tex. App. – Corpus Christi 2006, pet. denied) ........................34
Graham v. Pirkey,
212 S.W.3d 507 (Tex. App. – Austin 2006, no pet.) ............................................19
viii
Gray v. Woodville Health Care Ctr.,
225 S.W.3d 613 (Tex. App. – El Paso 2006, pet. denied) ....................................30
Guevara v. Lackner,
447 S.W.3d 566 (Tex. App. – Corpus Christi 2014, no pet.) ...............................39
Hammerly Oaks, Inc. v. Edwards,
958 S.W.2d 387 (Tex. 1997) ................................................................................35
Hardy v. Bennefield,
368 S.W.3d 643 (Tex. App. – Tyler 2012, no pet.) ..............................................42
HECI Exploration Co. v. Neel,
982 S.W.2d 881 (Tex. 1998) ................................................................................19
HIS Cedars Treatment Ctr. v. Mason,
143 S.W.3d 794 (Tex. 2004) ................................................................................45
Holt v. Hale,
No. 04-14-00113-CV, 2014 WL 5838937
(Tex. App. – San Antonio, Nov. 12, 2014, no pet.) (mem. op.) ...........................36
Huckabee v. Time Warner Entertainment Co.,
19 S.W.3d 413 (Tex. 2000)...................................................................................42
Hyman Farm Serv., Inc. v. Earth Oil & Gas Co., Inc.,
920 S.W.2d 452 (Tex. App. – Amarillo 1996, no writ) .......................................36
In re C.J.F.,
134 S.W.3d 343 (Tex. App. – Amarillo 2003, pet. denied) .................................41
In re Guardianship of Cantu de Villarreal,
330 S.W.3d 11 (Tex. App. – Corpus Christi 2010, no pet.) .................................14
In re J.F.C.,
96 S.W.3d 256 (Tex. 2002)...................................................................... 41, 42, 43
In re K.M.S.,
91 S.W.3d 331 (Tex. 2002)...................................................................................16
ix
JPMorgan Chase Bank, N.A. v. Professional Pharmacy II,
___ S.W.3d ___, 2014 WL 7473779
(Tex. App. – Fort Worth, Dec. 31, 2014, no pet. h.) ............................................19
King Ranch, Inc. v. Chapman,
118 S.W.3d 742 (Tex. 2003) ................................................................................41
Klentzman v. Brady,
312 S.W.3d 886 (Tex. App. – Houston [1st Dist.] 2009, no pet.) ........................42
Krueger v. Atascosa County,
155 S.W.3d 614 (Tex. App. – San Antonio 2004, no pet.) ..................................20
La Tierra de Simmons Familia, Ltd. v. Main Entertainment, LP,
No. 03-10-00503-CV, 2012 WL 753184
(Tex. App. – Austin, Mar. 9, 2012, pet. denied) (mem. op.) ................................28
Loram Maintenance of Way, Inc. v. Ianni,
210 S.W.3d 593 (Tex. 2006) ................................................................................13
Malooly Bros., Inc. v. Napier,
461 S.W.2d 119 (Tex. 1970) ................................................................................12
McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337 (Tex. 1993) ................................................................................38
Melden & Hunt, Inc. v. Garza,
No. 13-11-00594-CV, 2013 WL 3517743 (Tex. App. –
Corpus Christi, Jul. 11, 2013, no pet.) (mem. op.) ................... vi, 3, 15, 16, 23, 25
Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692 (Tex. 1980) ................................................................................24
Mercier v. Southwestern Bell Yellow Pages, Inc.,
214 S.W.3d 770 (Tex. App. – Corpus Christi 2007, no pet.) ...............................38
Mitchell v. Timmerman,
No. 03-08-00320-CV, 2008 WL 5423268
(Tex. App. – Austin, Dec. 31, 2008, no pet.) (mem. op.) .....................................28
x
Mobil Oil Corp. v. Ellender,
968 S.W.2d 917 (Tex. 1998) ................................................................................35
Moreno v. Sterling Drug, Inc.,
787 S.W.2d 348 (Tex. 1990) ................................................................................13
Murphy v. Reynolds,
No. 02-10-00229-CV, 2011 WL 4502523
(Tex. App. – Fort Worth 2011, no pet.) (mem. op.) .............................................39
New Times, Inc. v. Isaacks,
146 S.W.3d 144 (Tex. 2004) ................................................................................43
Pardo v. Simons,
148 S.W.3d 181 (Tex. App. – Waco 2004, no pet.) .............................................42
Parkway Co. v. Woodruff,
857 S.W.2d 903 (Tex. App. – Houston [1st Dist.] 1993),
aff’d as modified, 901 S.W.2d 434 (Tex. 1995) ...................................................45
Pena v. State Farm Lloyds,
980 S.W.2d 949 (Tex. App. – Corpus Christi 1998, no pet.) ...............................12
Perez v. Perez,
No. 09-05-00024-CV, 2005 WL 2092807
(Tex. App. – Beaumont, Aug. 31, 2005, no pet.) (mem. op.) ..............................41
Pisharodi v. Six,
No. 13-07-00019-CV, 2008 WL 3521330
(Tex. App. – Corpus Christi, Aug. 7, 2008, no pet.) (mem. op.) .........................13
Pitman v. Lightfoot,
937 S.W.2d 496 (Tex. App. – San Antonio 1996, writ denied) ...........................14
Pope v. John Kiella Homes,
No. 07-06-00146-CV, 2008 WL 1903332
(Tex. App. – Amarillo, Apr. 30, 2008, no pet.) (mem. op.) .................................28
xi
Ramirez v. First Liberty Ins. Corp.,
___ S.W.3d ___, 2014 WL 6766688
(Tex. App. – El Paso, Dec. 1, 2014, no pet. h.) ....................................................37
Rea v. Coffer,
879 S.W.2d 224 (Tex. App. – Houston [14th Dist.] 1994, no writ) .....................26
Rogers v. Ricane Enterprises, Inc.,
772 S.W.2d 76 (Tex. 1989)...................................................................................39
Rosenthal v. Taylor, B. & H. Ry. Co.,
79 Tex. 325, 15 S.W. 268 (1891) .........................................................................28
San Jacinto River Auth. v. Duke,
783 S.W.2d 209 (Tex. 1990) ................................................................................36
Sanchez v. Mica Corp.,
107 S.W.3d 13 (Tex. App. – San Antonio, 2002,
pet. granted; judgmn’t vacated in part w.r.m.) .....................................................33
Sandhu v. Pinglia Investments of Tex., L.L.C.,
No. 14-08-00184-CV, 2009 WL 1795032
(Tex. App. – Houston [14th Dist.], Jun. 25, 2009, pet. denied) (mem. op.) ........38
Schneider Nat’l Carriers, Inc. v. Bates,
147 S.W.3d 264 (Tex. 2004) ............................... 10, 19, 23, 24, 25, 29, 30, 31, 32
Smith v. O’Donnell,
288 S.W.3d 417 (Tex. 2009) ................................................................................46
Southwestern Bell Tel. Co. v. Garza,
164 S.W.3d 607 (Tex. 2004) ......................................................................... 40, 41
State Bd. of Ins. v. Westland Film Indus.,
705 S.W.2d 695 (Tex. 1986) ................................................................................20
Sullivan v. Brokers Logistics, Ltd.,
357 S.W.3d 833 (Tex. App. – El Paso 2012, pet. denied) ....................................31
xii
Tennessee Gas Transmission Co. v. Fromme,
153 Tex. 352, 269 S.W.2d 336 (1954) .................................................................25
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) .................46
THI of Tex. at Lubbock I, LLC v. Perea,
329 S.W.2d 548 (Tex. App. – Amarillo 2010, pet. denied) .................................35
Timpte Indus., Inc. v. Gish,
286 S.W.3d 306 (Tex. 2009) ................................................................................xv
Transportation Ins. Co. v. Moriel,
879 S.W.2d 10 (Tex. 1994)...................................................................................47
Trinity River Auth. v. URS Consultants, Inc.-Tex.,
889 S.W.2d 259 (Tex. 1994) ..................................................................................3
Trousdale v. Henry,
261 S.W.3d 221 (Tex. App. – Houston [14th Dist.] 2008, pets. denied) .............24
U-Haul Int’l, Inc. v. Waldrip,
380 S.W.3d 118 (Tex. 2012) ......................................................................... 40, 44
Unifund CCR Partners v. Weaver,
262 S.W.3d 796 (Tex. 2008) ................................................................................12
Vice v. Kasprzak,
318 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2009, pet. denied) .....................38
Western Investments, Inc. v. Urena,
162 S.W.3d 547 (Tex. 2005) ................................................................................37
Yalamanchili v. Mousa,
316 S.W.3d 33 (Tex. App. – Houston [14th Dist.] 2010, pet. denied) .................28
Zacharie v. U.S. Natural Resources, Inc.,
94 S.W.3d 748 (Tex. App. – San Antonio 2002, no pet.) ....................................25
xiii
STATUTES
TEX. CIV. PRAC. & REM. CODE § 16.003(a) (West 2002) ........................................18
TEX. CIV. PRAC. & REM. CODE § 17.565 (West 2011) .............................................19
TEX. CIV. PRAC. & REM. CODE § 41.001(2) (West 2014) ........................................40
TEX. CIV. PRAC. & REM. CODE § 41.001(7) (West 2014) ........................................44
TEX. CIV. PRAC. & REM. CODE § 41.001(11) (West 2014) ......................................44
TEX. CIV. PRAC. & REM. CODE § 41.003(a)(3) (West 2014) ....................................40
TEX. CIV. PRAC. & REM. CODE 150.001 (West 2011) ..............................................15
TEX. CIV. PRAC. & REM. CODE 150.002 (West 2011) ................................... 2, 15, 16
TEX. CIV. PRAC. & REM. CODE 150.002(a) (West 2011) .........................................15
TEX. CIV. PRAC. & REM. CODE 150.002(b) (West 2011) .........................................15
RULES
TEX. R. APP. P. 9.4(i) ................................................................................................48
TEX. R. APP. P. 38.1(a) .............................................................................................. ii
TEX. R. APP. P. 38.1(i) ....................................................................................... 29, 45
TEX. R. CIV. P. 166a ................................................................................................. vi
TEX. R. CIV. P. 166a(c) ................................................................................ 13, 18, 37
TEX. R. CIV. P. 301 ...................................................................................................41
xiv
STATEMENT OF THE CASE
Nature of the Case: Plaintiffs, Alberto R. Garza and Leticia I. Garza, along with
their children, filed suit against Melden & Hunt, Inc. (among
others) on April 22, 2008, seeking monetary relief and
asserting claims for negligence, negligent misrepresentation,
nuisance, and DTPA violations. (CR 47-53)1 The Garzas
later added a claim against Melden & Hunt for an alleged
violation of the Texas Water Code. (CR 99; SCR 18) All of
the Garzas’ claims were based on Melden & Hunt’s
preparation of a survey of their subdivision and arose out of
the flooding of their property, which first occurred in 1999
or 2000. (CR 48, 80, 95-96)
Trial court: The Honorable Jaime Tijerina of the 92nd Judicial District
Court, Hidalgo County, Texas.
Trial Court’s
Disposition: The trial court signed an Order Granting Partial Summary
Judgment in Favor of Melden & Hunt, Inc. and Granting
Motion to Sever on May 16, 2014, rendering a take-nothing
judgment only as to the adults’ claims. (CR 330-33) The
order in question disposed of all claims asserted by Alberto
R. Garza and Leticia I. Garza against Melden & Hunt, and
the severance resulted in a final judgment for appeal. See,
e.g., Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009). (CR 331)
Parties in the
Court of Appeals: The Appellants, Alberto R. Garza and Leticia I. Garza, were
Plaintiffs below. Appellee, Melden & Hunt, Inc., was a
Defendant below.
1
Appellee will refer to the clerk’s record using the notation “CR,” will refer to the supplemental
clerk’s record using the notation “SCR,” and will refer to the reporter’s record from the
summary-judgment hearing as “RR.” The relevant page numbers will appear after each
reference. The second supplemental clerk’s record that Appellee intends to request will be cited
with the notation “2 SCR” following the same format as references to the clerk’s record.
Appellee reserves its right to file an amended brief to include those supplemental record
references, once the second supplemental clerk’s record has been filed with the Court.
xv
Requested
Disposition from
This Court: Appellee Melden & Hunt, Inc. requests that the Court affirm
the trial court’s judgment and that the Court award Appellee
its costs on appeal.
xvi
STATEMENT REGARDING ORAL ARGUMENT
Appellee Melden & Hunt, Inc. believes that this appeal may be decided in its
favor without the need for oral argument. Based on the parties’ briefing, the Court
has sufficient information to affirm the trial court’s judgment based on well-
established principles concerning the law-of-the-case doctrine, summary-judgment
procedure, error preservation, the Garzas’ concessions and admissions, the parties’
respective burdens, the characterization of the nuisance in question as permanent
as a matter of law, as well as the complete lack of any evidence (much less clear
and convincing evidence) of malice or gross negligence. However, to the extent
the Court determines that oral argument would be helpful, Appellee would like to
participate.
xvii
RESPONSIVE ISSUES PRESENTED
Issue No. 1:
Whether the Court should affirm the trial court’s summary judgment in its entirety.
The Garzas failed to challenge every summary-judgment ground asserted by
Melden & Hunt and, thus, failed to challenge every ground on which the trial
court’s general summary-judgment grant rests. Included among those grounds is
the binding effect of the Court’s prior opinion on the legal question of accrual
pursuant to the law-of-the-case doctrine and the resultant limitations bar to all of
the Garzas’ claims. Even assuming the Garzas had lodged an appellate challenge
to that ground, they nevertheless waived review by failing to assert any challenge
below in their summary-judgment response. Instead, they rightly admitted the
opinion’s binding and preclusive effect.
Moreover, the Garzas waived the only appellate point they present on appeal to
challenge the summary judgment on limitations regarding the characterization of
the nuisance as temporary. Below, the Garzas never complained in their summary-
judgment response that the nuisance in question should be characterized as
temporary, never argued for application of different accrual principles, and never
argued for use of a different accrual date other than the one employed by Melden
& Hunt. They never identified the existence of any fact issue; rather, they
conceded and admitted both the permanent nature of the nuisance and the propriety
of summary-judgment on limitations. Regardless, even if the Court were to review
the Garzas’ otherwise inadequately briefed point, Melden & Hunt established its
entitlement to judgment as a matter of law by arguing limitations as applicable to
their nuisance claim and by proving accrual nearly a decade before suit was filed.
The Garzas’ own testimony admitted chronic flooding to their property and home
on a virtually annual basis both before and after suit, allegedly from a permanent
source – establishing the permanent nature of the claimed nuisance as a matter of
law.
Issue No. 2:
Whether, at the least, the Court should affirm the trial court’s summary judgment
on the Garzas’ claim for exemplary damages.
In response to Melden & Hunt’s no-evidence motion on the Garzas’ claim for
exemplary damages, the Garzas offered only a general reference to the entirety of
xviii
their summary-judgment evidence, with no identification of which portions of that
evidence purportedly raised fact issues and with no delineation of what specific
fact issues that evidence supposedly raised. Additionally, the Garzas failed to
plead any basis for imputing liability for exemplary damages to the corporate
entity, failed to offer any response to Melden & Hunt’s no-evidence motion on any
imputation theory, and failed to make any appellate challenge on that ground.
Finally, the evidence cited in the Garzas’ opening brief and otherwise offered by
the Garzas is incompetent and/or wholly insufficient to constitute any evidence –
much less clear and convincing evidence – of malice and gross negligence.
xix
RESPONSE TO APPELLANTS’ STATEMENT OF FACTS
Melden & Hunt, Inc. is a Texas corporation that provides professional
surveying and engineering services. (CR 76) In the context of this case, Melden &
Hunt performed surveying work in connection with the Chateau Estates
subdivision in Edinburg, Texas. (CR 76) Melden & Hunt completed the survey
field work on April 24, 1997 and reduced the results of the survey to a written plat
on April 27, 1997. (CR 76) A final copy of the plat was submitted for final
approval and recordation on October 3, 1997. (CR 76, 78) Melden & Hunt had no
duties with respect to the construction of houses on the project. (CR 76)
On November 18, 1998, Alberto Garza purchased a home in Chateau Estates
subdivision from Burch Construction, Inc. (CR 80) In 1999 or 2000, Mr. Garza
testified that he first noticed ponding occurring in his backyard, prompting him to
contact the builder for a solution. (CR 60, 69, 80) Thereafter, Mr. Garza offered
proof that his and his wife’s property and home experienced “chronic” flooding
and “repeated severe flooding of their home on numerous occasions.” (CR 121,
131, 217)
Specifically, Mr. Garza testified on March 25, 2010 that he had experienced
flooding of his property that infiltrated his home – his kitchen, his living room, his
master bedroom – during the past 11 years on at least an annual basis, the only
exception being during the first two or three years during a drought. (2 SCR ___)
1
He produced annotated photographs in 2010 that again represented he had
experienced flooding of his home for the past 10 years. (2 SCR ___) His former
neighbor confirmed that Mr. Garza complained to him about water from the
backyard coming inside the home and flooding the family room at some point prior
to December 2004 and that Mr. Garza constructed a berm at some point prior to
March 2005 to help alleviate the flooding. (CR 60, 69; 2 SCR ___) Mr. Garza also
testified to instances of water intrusion prior to two additional flooding events in
August 2007 and again in 2008. (CR 80, 131)
Ultimately, the Garzas, along with their minor daughters, filed suit against
Melden & Hunt, Inc.; Gary Burch, individually, and Burch Construction, Inc. on
April 22, 2008. (CR 47-53) Gary Burch was later dropped from the litigation.
(CR 94-102) By their complaint, the Garzas alleged theories against Melden &
Hunt for negligence, negligent misrepresentation, nuisance, DTPA violations, and,
ultimately, violations of the Texas Water Code. (CR 47-53, 94-102; SCR 13-20)
In their first and subsequent pleadings, the Garzas asserted that their home flooded
on several occasions, resulting in a total loss of value. (CR 49, 96; SCR 15) Later,
Mr. Garza testified to post-suit and continuing problems with the flooding of his
property. (CR 199)
When the Garzas originally filed suit against Melden & Hunt, they failed to
include a certificate of merit as required by section 150.002 of the Texas Civil
2
Practice & Remedies Code. (CR 47-53) Melden & Hunt moved to dismiss the
Garzas’ claim, which the trial court denied. Melden & Hunt, Inc. v. Garza, No. 13-
11-00594-CV, 2013 WL 3517743, *1 (Tex. App. – Corpus Christi, Jul 11, 2013,
no pet.) (mem. op.). Melden & Hunt then appealed the denial of their motion to
dismiss to the Thirteenth Court of Appeals. However, the Court held that, in order
for it to have jurisdiction over the interlocutory appeal under chapter 150, the
Garzas’ cause of action had to have accrued on or after September 1, 2005. Id. at
*2. The Court addressed directly when the Garzas’ claim accrued and held that the
Garzas’ “cause of action accrued before September 1, 2005.” Id.
Upon issuance of the Court’s mandate, Melden & Hunt moved for summary
judgment on limitations only as to the adult Garzas’ claims, arguing the preclusive
effect of the Court’s prior opinion on accrual and establishing the accrual date as a
matter of law regardless. (CR 62, 65-92) Melden & Hunt also moved for a no-
evidence summary judgment on the Garzas’ claim for exemplary damages. (SCR
21-30) The Garzas responded to the limitations grounds by (wrongly) asserting
that the statute of repose2 preempted the applicable limitations provision and
thereby extended the limitations period from two to ten years. (CR 108-09) In
answer to Melden & Hunt’s no-evidence motion on exemplary damages, the
2
“Unlike traditional limitations provisions, which begin running upon accrual of a cause of
action, a statute of repose runs from a specified date without regard to accrual of any cause of
action” and vests in the defendant a substantive right against the threat of claims. Trinity River
Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261 (Tex. 1994).
3
Garzas made a single, blanket reference to the entirety of their summary-judgment
evidence – never discussing the existence of any specific fact issue or addressing
any particular portion of the evidence. (CR 109-10) Additionally, the response
asserted that the Garzas’ home flooded “from even moderately heavy rainfall [and]
has suffered substantial damage and a total loss in value.” (CR 104)
The trial court held a hearing on April 16, 2014 on both Melden & Hunt’s
and Co-Defendant Burch Construction, Inc.’s summary-judgment motions. (RR)
At the hearing, counsel for the Garzas acknowledged both that the Court’s prior
opinion had “crystallized” the limitations issue (RR 15-16) and that application of a
two-year limitations period “could be very determinative of a lot of the causes of
action in this case. If it’s the 10 year [statute of repose] we’ve got a case that’s
going forward and should be tried.” (RR 61) Thereafter, the trial court signed an
Order Granting Partial Summary Judgment in Favor of Defendant Melden & Hunt,
Inc. and Granting Motion to Sever on May 16, 2014. (CR 330-33) This appeal
followed. (CR 330-33)
SUMMARY OF THE ARGUMENT
In an argument of less than nine pages, the Garzas seek to convince the
Court that the trial court erred in granting summary judgment in favor of Melden &
Hunt. The Garzas’ curt discussion, however, neglects to inform the Court that the
Garzas, through their procedural failings, have presented nothing for review.
4
Moreover, their facile take on the law of nuisance and on the summary judgment
evidence fall far short of demonstrating reversible error.
Melden & Hunt moved for summary judgment on limitations based both on
the Court’s prior opinion determining accrual as a matter of law and on Melden &
Hunt’s own independent demonstration of accrual more than two years prior to suit
(two years being the applicable limitations period). The Garzas have attacked only
the latter ground. Both on appeal and in the trial court, the Garzas never
mentioned or acknowledged the Court’s prior opinion, except in their concession
that the Court’s earlier decision had “crystallized” the limitations issues. Given
their concession and the lack of any challenge, the Court has no choice but to
affirm. Indeed, absent any new or additional facts, legal analysis, or argument that
would cast doubt on the Court’s earlier disposition (of which the Garzas offered
none), the Court’s prior opinion binds as a matter of law pursuant to the law-of-
the-case doctrine.
In the only appellate challenge lodged as to limitations, the Garzas challenge
the trial court’s summary-judgment ruling only as to their nuisance claim –
conceding the propriety of the grant on all other claims and the sufficiency of
Melden & Hunt’s summary-judgment showing. With respect to their nuisance
claim, the Garzas contend that the nuisance in question is temporary rather than
permanent, resulting in the application of different accrual principles and a
5
subsequent accrual date. But the Garzas never made any such argument below.
Rather, their pleadings affirmatively acknowledged the chronic and repeated
flooding events they claim to have suffered, both to their property and to their
home. Indeed, their counsel expressly conceded at the summary-judgment hearing
that, should the Court apply the applicable two-year limitations period, the Garzas’
claims could not survive.
To avoid their resultant waiver, the Garzas refashion their true complaint
into one that challenges the sufficiency of Melden & Hunt’s summary-judgment
showing. Given the Garzas’ judicial admissions regarding the permanent nature of
the alleged nuisance, Melden & Hunt had no obligation to make any showing in
that regard. Regardless, the Garzas belatedly raise an issue in avoidance of
summary judgment by arguing that the nuisance in question was temporary as a
matter of law or that (unidentified) fact issues exist regarding the proper
characterization. And those issues in avoidance had to be raised via a written
response in order to be presented on appeal. Summary-judgment precedent
requires arguments asserting application of different limitations or accrual
principles to be preserved in a response at the trial court level.
Nevertheless, Melden & Hunt proved that any such nuisance deserves
characterization as permanent as a matter of law, having argued an across-the-
board limitations bar, having specifically identified the Garzas’ nuisance claim,
6
having expressly argued for an accrual date applicable to permanent nuisances, and
having expressly argued against application of accrual principles applicable to
temporary nuisance – coupled with a summary-judgment record in which the
Garzas acknowledge multiple, repeated, chronic flooding of their property and
home on an annual basis since shortly after they purchased their home and from an
alleged source permanent in nature. To the extent the Court were to indulge the
Garzas’ inadequate briefing of any alleged insufficiency of the motion below, there
is no error in the trial court’s summary-judgment grant, which must be affirmed.
As for the only other appellate challenge asserted by the Garzas, they again
neglect to inform the Court of their terse and determinative response below. In a
mere sentence, which referenced the entirety of their summary-judgment evidence
without a concomitant reference to existent fact issues, the Garzas’ trial-court
response failed to preserve any error for appeal. More than that, the Garzas again
fail to challenge all grounds on which the trial court’s judgment rests, including
their failure to plead or produce any evidence to support imputation of liability for
exemplary damages to the corporate entity.
But, again, even were the Court to address the Garzas’ second issue, the
evidence cited by the Garzas falls woefully short of raising a fact issue as to malice
or gross negligence. The Garzas cite to a few pages of deposition testimony
regarding the location of their lot, the general flow of water downhill, and one
7
deponent’s opinion that it would be unreasonable to have to deal with continuous
flooding. That’s it. The referenced testimony includes no expert opinion on the
standard of care or any breach thereof by Melden & Hunt and no evidence of the
requisite mental state for imposition of exemplary damages. In particular, the
Garzas cite to no evidence of intent on the part of Melden & Hunt to cause
substantial harm to the Garzas. Nor do they identify evidence of any knowledge
on the part of Melden & Hunt of an extreme degree of risk of serious harm to the
Garzas resulting from its conduct, combined with a conscious indifference to the
consequences of its actions. Given the Garzas’ clear waiver and their failure to
demonstrate error nonetheless, the summary judgment should be affirmed.
ARGUMENT AND AUTHORITIES
I. The Trial Court’s Summary Judgment in Favor of Melden & Hunt
Should Be Affirmed in Its Entirety
Before turning to an in-depth analysis of the Garzas’ appellate challenge to
the trial court’s summary judgment, Melden & Hunt would focus the Court’s
attention on the nature of the Garzas’ limited summary-judgment response below
and limited appellate challenge before this Court. Melden & Hunt argued, through
two summary-judgment filings, that the Garzas’ claims were barred by the
applicable statute of limitations because: (1) this Court’s prior opinion determined,
as a matter of law, that the Garzas’ claims accrued prior to September 1, 2005; and
(2) the summary-judgment evidence demonstrated that the Garzas’ claims accrued
8
more than two years prior to date the Garzas filed suit. (CR 68-81) Melden &
Hunt also argued that the Garzas had no evidence of the elements of its claim
under the Texas Water Code, no evidence of the elements of any claim for
exemplary damages, and no pleading or evidence to support imputing liability for
exemplary damages to Melden & Hunt, Inc. as a corporate entity. (CR 71-72; SCR
21-30) In response to Melden & Hunt’s summary judgment, the Garzas below
argued only (and wrongly) that the statute of repose preempted the governing
limitations period to provide the Garzas with ten years (instead of two) to file suit
following the accrual of their claims. (CR 108-09) In doing so, the Garzas
acknowledged that, should the two-year limitations period apply, it would be
determinative of their claims. (RR 61)
The Garzas do not repeat on appeal their response below. Instead, the
Garzas mount a very limited challenge to the trial court’s summary-judgment
ruling. In defining the narrow nature of their challenge, the Garzas concede the
propriety of the trial court’s summary judgment on all of their claims – negligence,
negligent misrepresentation, permanent nuisance, DTPA, and the Texas Water
Code – save any claim for temporary nuisance.
For the first time on appeal, they assert that the trial court erred in granting
summary judgment because Melden & Hunt – though it specifically argued for an
across-the-board limitations bar, specifically mentioned nuisance, and established
9
as a matter of law the permanent nature of the nuisance – failed to meet its
summary-judgment burden. Though cast in terms of Melden & Hunt’s burden, the
core of the Garzas’ point is that the nuisance should be characterized as temporary
in nature and that nuisance claims based on flooding events in 2007 and 2008 – but
not earlier – should be remanded.3 Nowhere did they assert any such claim to the
trial court – conceding and admitting instead the permanent nature of the nuisance
and the propriety of the trial court’s summary-judgment grant on limitations.
Secondly, the Garzas assert on appeal that some evidence of malice or gross
negligence exists so as to justify reversal of the trial court’s summary judgment on
a supposed claim for exemplary damages. However, they failed to assert the
existence of any fact issue below – except by general reference to the entirety of
their summary-judgment evidence; failed to plead any basis for imputing any such
liability to Melden & Hunt, Inc.; failed to argue the existence of any fact issue
regarding any imputation theory; and failed to challenge that basis for the trial
court’s summary judgment on appeal.
As the Court can see, the Garzas have failed to present anything to this Court
for review. They have failed to challenge independent grounds supporting
summary judgment on all of their claims. Likewise, they failed to raise below the
3
See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex. 2004) (“[A] nuisance
should be deemed temporary only if it is so irregular or intermittent over the period leading up to
filing and trial that future injury cannot be estimated with reasonable certainty. Conversely, a
nuisance should be deemed permanent if it is sufficiently constant or regular (no matter how long
between occurrences) that future impact can be reasonably evaluated.”).
10
only challenge now made to the summary judgment on limitations ground –
instead, admitting themselves out of court. The Court has no choice but to affirm.
In the interest of being thorough, Melden & Hunt nevertheless will demonstrate
below why the summary judgment must be affirmed even assuming that the Court
were to overlook the Garzas’ multiple, repeated, and dooming waivers. But the
result of the record, the briefing, and the law are clear. The Garzas have waived
review, and the summary judgment should be affirmed in its entirety.
II. The Garzas Have Failed to Demonstrate Error in the Trial
Court’s Summary Judgment Grounded in Limitations
A. The Garzas Have Failed to Attack All Bases for the Trial Court’s
Summary Judgment – Most Notably, the Preclusive Effect of This
Court’s Prior Opinion on Accrual – and the Summary Judgment
in Melden & Hunt’s Favor Must Therefore Be Affirmed
To reiterate, Melden & Hunt sought summary judgment on the grounds that
all of the Garzas’ claims were barred by the applicable statute of limitations
because: (1) this Court’s prior opinion determined, as a matter of law, that the
Garzas’ claims accrued prior to September 1, 2005 (more than two years prior to
the filing of suit, the applicable limitations period); and (2) that, beyond the
Court’s prior ruling, the Garzas’ claims accrued more than two years prior to date
the Garzas’ filed suit as a matter of law. (CR 66, 68-71) Below, the Garzas
responded only by arguing that the statute of repose preempted the governing
limitations provisions, purportedly increasing the governing limitations period
11
from two to ten years. (CR 108-09) They do not repeat this argument on appeal.
Rather, the Garzas now assert, for the first time, that the nuisance in question was
temporary, rather than permanent, warranting application of different accrual
principles and a subsequent accrual date.
Nowhere have the Garzas attacked, as a basis for the trial court’s summary
judgment, this Court’s prior determination under the law-of-the-case doctrine.
They made no argument below regarding the Court’s prior legal ruling, they assert
no issue on appeal, they nowhere brief a response to the earlier binding opinion,
and they nowhere ask the Court to reconsider that earlier decision or provide any
basis for doing so.4 In fact, no reference or citation is made in the Garzas’ brief to
the Court’s prior opinion; and they did nothing more than attach the Court’s prior
opinion as an exhibit to their summary-judgment response below. (CR 251-56)
As such, the Garzas have waived any challenge to that ground; and this
Court must affirm the trial court’s judgment. See, e.g., Unifund CCR Partners v.
Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (“[A] party who fails to expressly
present to the trial court any written response in opposition to a motion for
summary judgment waives the right to raise any arguments or issues post-
4
Even assuming that the Garzas had asserted a general Malooly issue challenging the summary
judgment as a whole (they did not), they nevertheless would still be required to brief all aspects
of their challenge on appeal, which the Garzas did not do. See, e.g., Pena v. State Farm Lloyds,
980 S.W.2d 949, 959 (Tex. App. – Corpus Christi 1998, no pet.) (Malooly allows the non-
movant to argue broadly on appeal under a general point of error, but does not relieve an
appellant of the burden to challenge the grounds for the summary judgment and to present
argument for his case on appeal).
12
judgment”), citing TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the
trial court by written motion, answer or other response shall not be considered on
appeal as grounds for reversal”); Pisharodi v. Six, No. 13-07-00019-CV, 2008 WL
3521330, *1 (Tex. App. – Corpus Christi, Aug. 7, 2008, no pet.) (mem. op.)
(“Because Pisharodi failed to attack all possible grounds for the order granting
summary judgment, his two issues are waived. Accordingly, we affirm.”); see also
Baldwin v. Northrop Grumman Information Technology, No. 03-09-00654-CV,
2011 WL 182880, **1-2 (Tex. App. – Austin, Jan. 21, 2011, no pet.) (mem. op.)
(affirming trial court’s summary judgment where appellant failed to challenge each
ground for summary judgment that was advanced in the trial court).
B. Even Assuming the Garzas’ Appeal Encompasses a Challenge to
the Preclusive Effect of This Court’s Prior Opinion on Accrual,
the Trial Court’s Judgment Must Still Be Affirmed
Even assuming that the Garzas could and/or did present to this Court any
attack on the Court’s prior opinion as a basis for the trial court’s summary
judgment, any such attack would lack merit. Again, Melden & Hunt moved for
summary judgment based, in part, on the Court’s prior determination that the
Garzas’ claims accrued well before they filed suit. (CR 66, 68-70) Under the law-
of-the-case doctrine, questions of law decided on appeal – such as the accrual of
limitations – govern the case throughout its subsequent stages. Loram
Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006); Moreno v.
13
Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (explaining that accrual for
limitations purposes is a question of law).
Indeed, by narrowing the legal issues in successive stages of the case’s
litigation, the doctrine’s purpose is to achieve uniformity of decision, as well as
judicial economy and efficiency. Briscoe v. Goodmark Corp., 102 S.W.3d 714,
716 (Tex. 2003). Absent new or additional facts, legal analysis, or argument that
would change the Court’s earlier disposition, the law-of-the-case doctrine
precludes the Court from reconsidering previously determined issues. See In re
Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 21 (Tex. App. – Corpus
Christi 2010, no pet.). The Court must enforce the doctrine, based on public policy
aimed at putting an end to litigation. Pitman v. Lightfoot, 937 S.W.2d 496, 513
(Tex. App. – San Antonio 1996, writ denied).
In its earlier disposition, the Court held as a matter of law that the Garzas’
claims accrued prior to September 1, 2005 – more than two years prior to their
having filed suit on April 22, 2008 (CR 47):
Presuming, for the sake of argument only, that the discovery rule
applies, then the Garzas’ cause of action accrued when they knew or
in the exercise of ordinary diligence should have known of Melden &
Hunt’s alleged negligence and the alleged injury resulting therefrom. .
. . The undisputed evidence shows that before September 1, 2005, all
of the following occurred: (1) Melden & Hunt completed its survey,
supervision, and any grading work for the home; (2) Alberto Garza
purchased the home from the builder in November 1998; (3)
according to Alberto Garza’s sworn testimony, in the summer of 1999
or 2000, the Garzas experienced “ponding” in their backyard that
14
prompted Alberto to call the builder and to “plead” with the builder
“for assistance with the ponding;” (4) the Garzas’ former neighbor,
Rosendo Hinojosa, testified at his deposition that prior to December
2004, Alberto Garza complained to him about water from the
backyard coming inside the home and flooding the family room; and
(5) prior to March 2005, Hinojosa witnessed Alberto building a
“berm” around the house ‘to prevent another flooding incident.’
Melden & Hunt, 2013 WL 3517743, at *2. Again, the Garzas never offered any
new or additional facts, legal analysis, or argument that would cast doubt on the
Court’s earlier disposition. As noted above, the Garzas made no reference or
citation whatsoever to the Court’s prior determination in either their summary-
judgment response or in their appellate brief. (CR 103-11) Rather, at the hearing
on the motions for summary judgment presented by both Melden & Hunt and Co-
Defendant Burch Construction, Inc., counsel for the Garzas acknowledged that the
limitations issue had been “crystallized” by the Court’s prior opinion. (RR 14-16)
The Court made its accrual determination across the board for all of the
Garzas’ claims in the context of deciding whether the Court had jurisdiction over
an interlocutory appeal under section 150.002 of the Texas Civil Practice and
Remedies Code. That provision applies across the board to “any action . . . for
damages arising out of the provision of professional services” by a licensed
architect, professional engineer, professional land surveyor, registered landscape
architect, or any firm in which such licensed or registered professional practices.
See TEX. CIV. PRAC. & REM. CODE §§ 150.001, 150.002(a), (b) (West 2011). As a
15
result, the trial court had no choice but to follow the Court’s earlier ruling and
grant Melden & Hunt’s summary judgment. See In re K.M.S., 91 S.W.3d 331, 333
(Tex. 2002) (noting that lower courts cannot “decline to follow” rulings of higher
courts); see also City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 338
(Tex. App. – Houston [14th Dist.] 2001, pet. denied) (“Where a losing party fails
to avail itself of an appeal in the court of last resort, but allows the case to be
remanded for further proceedings, the points decided by the court of appeals will
be regarded as law of the case and will not be re-examined.”).
Moreover, even assuming that the Garzas preserved any such attack on the
Court’s decision by either raising it below or asserting it in their opening brief, the
aim of any reconsideration request is puzzling. If any portion of the Garzas’
claims accrued on or after September 1, 2005, Melden & Hunt would be entitled to
mount an interlocutory appellate challenge to the denial of its motion to dismiss
based on the Garzas’ failure to file a timely certificate of merit as required by
section 150.002 of the Texas Civil Practice and Remedies Code. Melden & Hunt,
2013 WL 3517743, *1; TEX. CIV. PRAC. & REM. CODE § 150.002 (West 2011).
Having succeeded in blocking an appellate challenge to the trial court’s denial of
Melden & Hunt’s motion to dismiss pursuant to section 150.002 based on an
accrual of their claims prior to September 1, 2005, it is indeed odd – and barred as
a matter of law – for the Garzas’ to now argue that any portion of their action
16
accrued after that date. In any event, the Garzas waived any attack on the Court’s
prior determination and on its binding nature both in the trial court and on appeal.
As a result, the trial court’s summary judgment should be affirmed in its entirety.
C. The Garzas Concede That the Trial Court Properly Granted
Summary Judgment on Virtually All of Their Claims and
Neglected to Raise Below (and Have Thus Waived) the Only Issue
in Avoidance They Now Assert on Appeal
1. The Garzas Failed to Assert Any Argument in Response to
the Summary Judgment That Its Nuisance Claim Should Be
Governed by Different Accrual Principles
Even if the Court were to ignore its prior opinion as law of the case and
ignore the Garzas’ failure to raise any challenge to that ground in their summary-
judgment response below or on appeal, the trial court’s summary judgment should
nevertheless be affirmed. In addition to relying on the Court’s prior opinion,
Melden & Hunt argued secondarily that the Garzas’ claims accrued as a matter of
law more than two years prior to the date the Garzas filed suit in 2008. (CR 66,
68-71) In their only attack on the trial court’s ruling, the Garzas focus solely on
their nuisance claim and (wrongly) contend that, as a temporary nuisance, it is
governed by different accrual principles.
While the Garzas cast their complaint as one that Melden & Hunt failed to
prove that the alleged nuisance is “permanent,” as opposed to “temporary,” the
core of the Garzas’ challenge argues for a temporary characterization as a matter of
law or the alternative existence of unresolved (and unidentified) fact issues.
17
However, the Garzas misunderstand both the law pertaining to nuisance and the
burden the Garzas themselves bore to present expressly by written response any
issue to be considered as grounds for reversal on appeal. See TEX. R. CIV. P.
166a(c). In doing so, they overlook that Melden & Hunt satisfied its summary-
judgment burden by arguing a limitations bar across the board, by pointing to the
Garzas’ claims of multiple incidents of flooding, by arguing that the Garzas’ claim
could not be split among alleged harms, and by virtue of the summary-judgment
evidence – both Melden & Hunt’s and that produced by the Garzas –
demonstrating that any nuisance is permanent as a matter of law. (CR 64-88)
Before turning to a further discussion of these issues, the Court should
appreciate the critical concessions the Garzas’ make in their opening brief.
Specifically, the Garzas acknowledge that they asserted several different theories
of liability against Melden & Hunt – negligence, negligent misrepresentation,
deceptive trade practices, water code violations, and nuisance – all of which have a
two-year limitations period. (Appellants’ Brief at 2) However, the Garzas
expressly refrain from challenging the trial court’s judgment on all claims other
than nuisance – even though they all have a two-year limitations period and even
though at least one of the claims involves the same temporary-permanent accrual
dichotomy as does the Garzas’ nuisance claim. See TEX. CIV. PRAC. & REM. CODE
§ 16.003(a) (West 2002) (two-year limitations period applies to generally to tort
18
claims asserting injury to person or property); TEX. CIV. PRAC. & REM. CODE §
17.565 (West 2011) (two-year limitations period for DTPA); Schneider Nat’l
Carriers v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (two-year limitations period
for nuisance); HECI Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998)
(statute of limitations for negligent misrepresentation is two years); JPMorgan
Chase Bank, N.A. v. Professional Pharmacy II, ___ S.W.3d ___, 2014 WL
7473779, *10 (Tex. App. – Fort Worth, Dec. 31, 2014, no pet. h.) (two-year
limitations period for negligence); Graham v. Pirkey, 212 S.W.3d 507, 512-13
(Tex. App. – Austin 2006, no pet.) (two-year limitations period for Water Code
violation); see also Graham, 212 S.W.3d at 512 (applying Bates’ analysis of
accrual of nuisance claims to claims under Texas Water Code). (Appellants’ Brief
at 3, 6) The Garzas’ limited challenge is telling as a virtual admission that Melden
& Hunt established its entitlement to summary judgment on limitations as a matter
of law, regardless of the Court’s earlier disposition.
Not only is the Garzas’ limited point on appeal demonstrative of the
summary judgment’s strength, but their singular point has been waived because it
was not raised below. Again, though the Garzas, at times, cast their complaint as
one attacking the insufficiency of Melden & Hunt’s proof, the Garzas’ real
complaint is that the nuisance in question should be characterized as temporary and
as governed by different accrual rules and/or that fact issues exist on frequency,
19
extent, and duration. See, e.g., First Amended Brief of Appellants at 4 (“Viewing
the summary judgment evidence in the light most favorable to Appellants, the trial
court should have determined that the nuisance was temporary, Appellants’ cause
of action accrued anew with each injury (i.e. on August 2007 and again in July
2008) and Appellants thus filed their nuisance claim (in April 2008) within the
two-year limitations period.”).5
Well-settled summary-judgment law precludes an appellant (absent any
complaint in the trial court through a timely, written response) from asserting on
appeal an argument offered to defeat summary judgment – including one urging
application of different limitations periods or different accrual rules, as well as one
asserting the existence of fact issues. See Krueger v. Atascosa County, 155 S.W.3d
614, 618 (Tex. App. – San Antonio 2004, no pet.), citing State Bd. of Ins. v.
Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986). Particularly with respect
to limitations principles, the court in Baxter v. Gardere Wynne Sewell LLP, 182
S.W.3d 460, 465 (Tex. App. – Dallas 2006, pet. denied) made clear that any
argument for application of different rules must first be preserved in the trial court:
Appellants’ petition did not separate their claim for aiding and
abetting fraud from their claim for aiding and abetting conspiracy.
Nor did their response to the motion for summary judgment separate
these claims, much less argue that the two claims were governed by
different limitations periods. . . . Issues a nonmovant contends avoid
5
Of course, the trial court could make no such determination because the Garzas never filed their
own motion for summary judgment.
20
summary judgment that are not expressly presented to the trial court
by written answer or other written response to the summary judgment
motion are waived on appeal. . . . We concluded appellants waived
any argument that the aiding and abetting fraud claim was governed
by a different limitations period than their other claims.
Similarly, in AGD, L.P. v. Quest Principal Investments, Inc., No. 13-12-00720-CV,
2014 WL 6602314, *6 n.16 (Tex. App. – Corpus Christi, Nov. 20, 2014, no pet.)
(mem. op.), this Court recognized these same principles in the context of a
summary-judgment motion based on limitations, explaining:
On appeal, appellants argue that because the contracts to construct the
Edinburg and Weslaco properties constituted a “continuing contract,”
appellees failed to establish that July 4, 2006 and May 26, 2007 were
the dates of completion for the contracts. However, appellants did not
make this argument in their response to appellees’ motion for
summary judgment. . . . Therefore, we are unable to reverse on that
basis.
Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 522 (Tex. App. – Dallas
2011, pet. denied) (holding that appellants waived argument that different statute
of limitations period applied by not raising the contention in opposition to the
movant’s summary-judgment motion); Cornerstones Mun. Utility Dist. v.
Monsanto Co., 889 S.W.2d 570, 574 (Tex. App. – Houston [14th Dist.] 1994, writ
denied) (holding that non-movant waived argument that longer, residual limitations
provision applied, where it did not raise the point in summary-judgment response);
see also D.R. Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743
(Tex. 2009) (“A [summary judgment] non-movant must present its objections to a
21
summary-judgment motion expressly by written answer or other written response
to the motion in the trial court or that objection is waived”); TEX. R. CIV. P. 166a(c)
(“Issues not expressly presented to the trial court by written motion, answer or
other response shall not be considered on appeal as grounds for reversal [of
summary judgment].”).
Just as in Baxter, AGD, and the other authorities cited above, the Garzas
failed to single out their nuisance claim and failed to argue that any nuisance was
temporary and governed by different limitations rules. As a result, the Garzas have
waived any such argument on appeal. Similarly, they failed to identify any fact
issues precluding summary judgment in Melden & Hunt’s favor. Rather than
assert a challenge to Melden & Hunt’s limitations argument, the Garzas
acknowledged the effect of the Court’s prior opinion at the summary-judgment
hearing – conceding that, assuming the two-year limitations period applied (rather
than the ten-year repose period as the limitations deadline), their claims could not
survive. (RR 14-15, 61) The summary judgment should be affirmed.
2. Regardless, Any Existent Nuisance Is Permanent as a Matter of
Law and Accrued with the First Flooding Event, Which Occurred
in 2000 at the Latest – Nearly a Decade before the Garzas Filed
Suit – Even Indulging the Garzas’ Inadequate Briefing
Melden & Hunt argued and proved a limitations bar across the board as to
all of the Garzas’ causes of action – including nuisance. (CR 68-71, 73)
Specifically, Melden & Hunt’s motion expressly referenced the Garzas’ nuisance
22
claim and expressly argued and proved that the claims accrued after the first
flooding incident, which is the accrual rule applicable to permanent nuisances.
Bates, 147 S.W.3d at 270. (CR 68-69) Melden & Hunt identified multiple
flooding events claimed by the Garzas and argued against separate accrual dates
for each one individually – thus expressly arguing against application of the
accrual rule for temporary nuisance. Id. (CR 69, 71, 324-26) Finally, Melden &
Hunt offered evidence establishing that the alleged nuisance was permanent as a
matter of law, precluding a renewed accrual period after every flooding event. (CR
69-70, 76-88) The law requires nothing more. See TEX. R. CIV. P. 166a(c)
(explaining that movant need only state “specific grounds” for summary judgment
– in this case, limitations – and support its motion with summary-judgment
evidence establishing its entitlement to judgment).
Turning to the evidence and the Garzas’ admissions, Mr. Garza testified that
the property first experienced flooding in 1999 or 2000 – prompting Mr. Garza to
contact the home builder – with additional flooding events occurring on at least the
following occasions: at some point prior to December 2004; in August 2007; in
July 2008; and thereafter. See Melden & Hunt, Inc., 2013 WL 3517743, at *2.
(CR 69-79, 79-80, 199) The Garzas admitted in their latest petition that “their
home flooded on several occasions resulting in a total loss in value” and further
23
admitted in their summary-judgment response that their home was “prone to flood
from even moderately heavy rainfall.” (CR 96, 104)
Later, the Garzas expressly pled in their summary-judgment response that
they suffered “substantial damage and a total loss in value.” See, e.g., Bates, 147
S.W.3d at 276 (explaining that permanent nuisance entitles one to recover for loss
in value); De La Pena v. Elzinga, 980 S.W.2d 920, 922 (Tex. App. – Corpus
Christi 1998, no pet.) (“A judicial admission is a formal waiver of proof usually
found in pleadings or the stipulations of the parties which relieves the opposing
party’s burden of proving the admitted fact, and bars the admitting party from
disputing it.”), citing Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606
S.W.2d 692, 694 (Tex. 1980). (CR 104)
Additionally, the Garzas’ own summary-judgment evidence confirmed the
repeated nature of flooding events to their property. See Trousdale v. Henry, 261
S.W.3d 221, 236-37 (Tex. App. – Houston [14th Dist.] 2008, pets. denied)
(considering non-movant’s as well as movant’s evidence in concluding no fact
question existed regarding when legal-malpractice causes of action accrued). For
example, affiant Gerald Duhon testified that “the house is being chronically
flooded.” (CR 121) Affiant Raymond Helmer stated that “the Garzas have
experienced repeated severe flooding of their home on numerous occasions.” (CR
217, 240) Mr. Garza’s own deposition testimony established that water had
24
flooded his yard and even invaded his home on multiple occasions and that he had
engaged in repeated efforts to thwart it. (CR 131) He also testified that his home
experienced flooding not just during hurricanes, but during “regular rains, regular
thunderstorms. You have to remember that we’ve had flooding issues before 2007
where it was a regular rain, not a thunderstorm, a rain, and, yet, we would have
flooding in the back.” (CR 199)6
While the foregoing is more than sufficient to affirm the trial court’s
judgment, Co-Defendant Burch Construction, Inc. had its summary-judgment
motion on limitations heard on April 16, 2014, along with Melden and Hunt’s
6
As a result of the foregoing, not only does the evidence establish the nuisance as permanent,
but it conclusively demonstrated accrual well before the Garzas filed suit on April 22, 2008, as
this Court previously and correctly determined. See, e.g., Tennessee Gas Transmission Co. v.
Fromme, 153 Tex. 352, 354, 269 S.W.2d 336, 338 (1954) (“[R]espondent’s legal rights were
invaded the moment water from the petitioner’s plant began to flow upon her land.”). The
Garzas brought forth no challenge to Melden & Hunt’s accrual demonstration and, on appeal, fail
to assert the existence of any fact issue on accrual – apart from the belated contention that a
different accrual determination governs their nuisance claim. Again, the Garzas never
controverted their admissions that their claims could not withstand a two-year limitations period
and that the nuisance was permanent in nature and never controverted the defendants’ summary-
judgment proof; nor did the Garzas otherwise identify or argue the existence of any fact issue on
accrual – either in the trial court or on appeal. (CR 103-11)
Though the Garzas have raised no contention that they could bring their claims seriatim if
deemed a permanent nuisance, any such argument would be barred by the single-action doctrine.
See, e.g., Zacharie v. U.S. Natural Resources, Inc., 94 S.W.3d 748, 755 (Tex. App. – San
Antonio 2002, no pet.) (“In general, a plaintiff must bring ‘one indivisible cause of action for all
damages arising from a defendant’s single breach of a legal duty.’ . . . Keeping this single action
rule in mind, a cause of action accrues when a wrongful act causes an injury, regardless of when
the plaintiff learns of that injury or if all resulting damages have yet to occur.”); see also Bates,
147 S.W.3d at 279 & n.70 (“[O]nce operations begin and interference occurs, limitations runs
against a nuisance claim just as against any other”), citing Fromme, 269 S.W.2d at 338 (holding
nuisance claim accrued when flooding began, and was barred by limitations even though greater
part of damage occurred within two years of suit); Melden & Hunt, 2013 WL 3517743, at *2
(claim accrues when facts come into existence authorizing claimant to seek judicial remedy,
“even if all resulting damages have not yet occurred.”).
25
summary-judgment motion. (CR 89-92; 2 SCR ___; RR) Burch offered additional
evidence that the Garzas experienced flooding, including flooding to their home, in
and around 2000. See, e.g., Rea v. Coffer, 879 S.W.2d 224, 228 (Tex. App. –
Houston [14th Dist.] 1994, no writ) (looking to co-defendant’s summary-judgment
evidence negating discovery rule in affirming summary judgment); Desiga v.
Scheffey, 874 S.W.2d 244, 253 (Tex. App. – Houston [14th Dist.] 1994, no writ)
(holding that when a trial court sets a single hearing for multiple motions for
summary judgment and all motions are heard together, court may look to all
summary-judgment proof on file to determine whether movant entitled to summary
judgment). (2 SCR ___)
Burch attached additional excerpts from the deposition of Mr. Garza taken
on March 25, 2010, during which Mr. Garza acknowledged that water invaded his
home in 2002 at the latest, prompting multiple and repeated efforts by Mr. Garza to
stop its recurrence. (2 SCR ___) Specifically, Mr. Garza testified that in the
previous 11 years, rainwater entered his home every year with the exception of the
first two to three years he lived there. (2 SCR ___) Furthermore, he confirmed
that he knew about the intrusion – in the master bedroom, in the kitchen, in the
formal living room – when it first occurred because he could see the wet carpet,
even as far as under his bed. (2 SCR ___)
26
Burch also filed as summary-judgment evidence material produced by Mr.
Garza in 2010, which included notated photographs depicting flooding and
complaints that he had been experienced these issues with his home for 10 years,
i.e., since around 2000. (2 SCR ___) Finally, Burch produced testimony from Mr.
Garza’s former neighbor – the same neighbor whose testimony is referenced in the
Court’s prior opinion – who testified that Mr. Garza complained of flooding to the
family room area of his home prior to December 2004 and attempted to build a
berm to stop future flooding at some point prior to March 2005. (2 SCR ___).
Additionally, the Garzas asserted that the flooding resulted from what is
properly characterized under the law as a permanent source, completed well before
the property’s first flooding event. Melden & Hunt completed its survey on
October 3, 1997; and the Garzas purchased the completed home on November 18,
1998. (CR 76-78, 80) Moreover, the Garzas’ own expert identified the flooding
issues as arising from the grading and construction of the Chateau Estates
subdivision, a permanent structure. (CR 220-21) Given the multiple flooding
events, as well as the permanent nature of the flooding’s alleged source, the only
proper characterization of any purported nuisance is permanent as a matter of law.
In analogous circumstances, Texas courts have characterized the alleged
nuisance to be permanent as a matter of law. See, e.g., City of Amarillo v. Ware,
120 Tex. 456, 40 S.W.2d 57, 61 (1931) (flooding caused by storm sewer was
27
properly pleaded as permanent nuisance); Rosenthal v. Taylor, B. & H. Ry. Co., 79
Tex. 325, 15 S.W. 268, 269 (1891) (nuisance from rainfall flooding was
permanent); La Tierra de Simmons Familia, Ltd. v. Main Entertainment, LP, No.
03-10-00503-CV, 2012 WL 753184, **9-10 (Tex. App. – Austin, Mar. 9, 2012,
pet. denied) (mem. op.) (nuisance claimed as a result of water diversion was
permanent as a matter of law, where drainage system had operated in a consistent
manner since it was constructed, there were no improvements or significant
alterations since it had been constructed, and record showed that significant rainfall
events were not so rare or infrequent so as to characterize nuisance as temporary
rather than permanent); Yalamanchili v. Mousa, 316 S.W.3d 33, 37-38 (Tex. App.
– Houston [14th Dist.] 2010, pet. denied) (nuisance from flooding was permanent
as a matter of law, where evidence showed that water infiltrated property with
every rain of any magnitude for many years and where runoff was created by
permanent structure); Mitchell v. Timmerman, No. 03-08-00320-CV, 2008 WL
5423268, at *6 (Tex. App. – Austin, Dec. 31, 2008, no pet.) (mem. op.) (flooding
from every significant rain is permanent nuisance); Pope v. John Kiella Homes,
No. 07-06-00146-CV, 2008 WL 1903332, at **3-4 (Tex. App. – Amarillo, Apr.
30, 2008, no pet.) (mem. op.) (flooding following heavy rains resulting from
construction of Briarcrest subdivision, a permanent structure, is a permanent
nuisance); City of Princeton v. Abbott, 792 S.W.2d 161, 165 (Tex. App. – Dallas
28
1990, writ denied) (even though rain occurred at long intervals, there was no
suggestion that the nuisance or impoundment was likely to be removed by any
agency and, thus, was permanent); Durden v. City of Grand Prairie, 626 S.W.2d
345, 348 (Tex. App. – Fort Worth 1981, writ ref’d n.r.e.) (flooding caused by
storm sewer was permanent as a matter of law).
Indeed, the Supreme Court explained in Schneider Nat’l Carriers, Inc. v.
Bates, 147 S.W.3d 264, 276 (Tex. 2004) that a permanent nuisance is established
by showing either the plaintiff’s injuries or the defendant’s operations are
permanent. The Court continued that a permanent source is presumed to result in a
permanent nuisance unless rebutted by evidence that nuisance activity causes
injury under circumstances so rare that, even when activity occurs, it remains
uncertain whether or to what degree activity may ever occur again. Id. Ultimately,
the Court summarized its holding as follows: “[W]e hold that a nuisance should be
deemed temporary only if it is so irregular or intermittent over the period leading
up to filing and trial that future injury cannot be estimated with reasonable
certainty. Conversely, a nuisance should be deemed permanent if it is sufficiently
constant or regular (no matter how long between occurrences) that future impact
can be reasonably evaluated).” Id. The determination is one of law. Id. at 281.7
7
Other than a brief and misguided discussion of Bates, the Garzas offer no case law to support
their argument on appeal. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and
29
In their brief, the Garzas never quite explain the deficiency in Melden &
Hunt’s summary-judgment showing, thus waiving review,8 and further demonstrate
a misunderstanding of the Supreme Court’s exposition in Bates. For instance, they
contend that the Supreme Court held that anytime rain is involved, the nuisance is
necessarily temporary. They also contend that the determination of whether a
nuisance is permanent or temporary necessarily gives rise to a fact issue to be
determined by a jury. However, the Court in Bates held expressly to the contrary,
and the Garzas facile and selective take on Bates cannot withstand scrutiny.
Again, the Bates Court held that both the determination of the accrual of a
claim for nuisance, along with the incorporated determination whether a nuisance
is permanent, is a determination of law. 147 S.W.2d at 281. While the Court
recognized that, in some instances, there may exist fact issues that require
resolution before that determination can be made, the Court further explained that,
“if a nuisance occurs several times in the years leading up to trial and is likely to
continue, jurors will generally have enough evidence of frequency and duration to
reasonably evaluate its impact on . . . property values. In such cases, the nuisance
should be treated as permanent, even if the exact dates, frequency, or extent of
concise argument for the contentions made, with appropriate citations to authorities and to the
record.”).
8
See Gray v. Woodville Health Care Ctr., 225 S.W.3d 613, 620 (Tex. App. – El Paso 2006, pet.
denied) (“Appellants also allege that the motions for summary judgment were legally and
factually insufficient. This issue has not been properly briefed and has been waived.”).
30
future damages remain unknown.” Id. at 280; see also id. (“Absent evidence that
current experiences are unrepresentative or about to change, such nuisances should
be considered ‘permanent’ as a matter of law.”).
In other words, evidence of a nuisance like the one alleged here, with several
flooding events over more than a decade, combined with an admission by the
claimants that the flooding occurs with virtually any rain, warrants characterization
as permanent as a matter of law. Compare Sullivan v. Brokers Logistics, Ltd., 357
S.W.3d 833, 840 (Tex. App. – El Paso 2012, pet. denied) (nuisance from silt
buildup was temporary where it occurred in response to 100-year or 500-year
event). Moreover, Bates expressly clarified that “a recurrent nuisance is a
permanent one, even if it is difficult to predict what the weather will be on any
particular day.” 147 S.W.3d at 283; see also id. at 276-77 (“[I[f a nuisance
subjects land along a river to annual flooding, market values would normally
reflect that expectation . . . , even though many months may intervene between
floods and in some years there may be none at all”); id. at 281 (“[A] nuisance
should be deemed permanent if it is sufficiently constant or regular (no matter how
long between occurrences) that future impact can be reasonably evaluated.”).
Bates concluded by holding that “a permanent nuisance may be established
by showing that either the plaintiff’s injuries or the defendant’s operations are
permanent.” 147 S.W.3d at 281. Here, both exist. Nevertheless, Bates added that
31
the presumption of a connection between the two could be rebutted only by
evidence that the injury occurs under circumstances “so rare that, even when they
occur, it remains uncertain whether or to what degree they may ever occur again.”
Id. The Garzas never offered any such argument or evidence below or to this
Court. Rather, they conceded, admitted, and offered evidence of just the opposite.
It is, frankly, disingenuous (and legally prohibited) for the Garzas to now
argue that the nuisance is anything other than permanent, given their pleadings,
their summary-judgment response, and the summary-judgment evidence –
including Mr. Garza’s own candid testimony. And, again, the Garzas never
asserted a contrasting characterization of their nuisance claim, different accrual
principles, or a different accrual date. Similarly, they never argued the existence of
any fact issue on accrual below, never pointed to any evidence raising such an
issue in the trial court, and do nothing more than summarily recite the existence of
fact issues on frequency, extent, and duration for the first time to this Court – once
again resulting in nothing for the Court to review.
More than that, the Garzas conceded the propriety of summary-judgment on
limitations were the trial court to apply a two-year limitations period. Specifically,
during the hearing on the Defendants’ motions, counsel for the Garzas stated that
application of a two-year limitations period “could be very determinative of a lot of
the causes of action in this case. If it’s the 10 year [statute of repose] we’ve got a
32
case that’s going forward and should be tried.” (RR 61) “[A] party cannot lead a
trial court into error and then complain about it later on appeal.” Sanchez v. Mica
Corp., 107 S.W.3d 13, 26 (Tex. App. – San Antonio, 2002, pet. granted; judgmn’t
vacated in part w.r.m.) (refusing to consider appellate point regarding damages
where party had conceded insufficiency of the evidence to support full award).
Taking the Garzas’ concession, their pleadings, their other admissions, the
summary-judgment evidence, and the undisputed evidence of flooding recited in
the Court’s prior opinion, the several flooding events identified by the Garzas to
have occurred in the years between construction and suit (and thereafter) requires
affirmance. Of course, this discussion is entirely academic given the binding
nature of the Court’s prior opinion, the failure of the Garzas to challenge all bases
on which the trial court’s judgment rests, and the waiver of their only appellate
point. Nevertheless, Melden & Hunt demonstrated that the alleged nuisance is
permanent as a matter of law, as well as accrual well before the Garzas’ filed suit;
and the trial court correctly granted summary judgment in its favor.
III. The Garzas Have Also Failed to Demonstrate Error in the Trial Court’s
Summary Judgment on Their Claim for Exemplary Damages
A. Because the Garzas Have No Claim for Actual Damages, the
Summary Judgment on Their Claim for Exemplary Damages
Must Be Affirmed
As the Garzas concede, they expressly accept the trial court’s adverse
judgment on all underlying theories of liability other than nuisance. See First
33
Amended Brief of Appellants at 6 (“Appellants assert that the trial court erred in
dismissing their nuisance claims on limitations grounds. Appellants do not
challenge the dismissal of their four other causes of action on limitations
grounds”). And, as shown above, the trial court’s summary judgment on their
nuisance claim must be affirmed. As a result, the Garzas have no grounds to
recover actual damages against Melden & Hunt.
Absent a recovery of actual damages, there can be no recovery of exemplary
damages; and, indeed, the Garzas have acknowledged that they do not seek any
such recovery based on any theory other than nuisance. See First Amended Brief
of Appellants at 6. Given that the nuisance claim is similarly barred, the Garzas
cannot recover exemplary damages based on any theory. See, e.g., Gomez de
Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C., 204 S.W.3d 473, 477
(Tex. App. – Corpus Christi 2006, pet. denied) (“Here, appellants sought recovery
of exemplary damages, predicated on malice, in relation to their strict products
liability, negligence, and breach of warranty causes of action. Because the trial
court granted HAA summary judgment on all of appellants’ causes of action, and
appellants do not challenge the granting of summary judgment on any of those
grounds, there is no cause of action in relation to which malice may serve as a
predicate for exemplary damages. Therefore, appellants’ allegation of malice as a
34
predicate for exemplary damages is no longer viable”). The trial court’s judgment
must be affirmed in its entirety.
B. Even Assuming That the Court Would Reverse the Trial Court’s
Judgment on the Garzas’ Nuisance Claim, Contrary to the
Court’s Prior Opinion, the Garzas’ Concessions and Admissions,
Governing Case Law, and the Record Evidence, the Garzas
Nevertheless Cannot Prevail on Their Claim for Exemplary
Damages
1. The Garzas Nowhere Pled or Offered Evidence to Impute
Liability for Exemplary Damages to Melden & Hunt
“A corporation may be liable in punitive damages for gross negligence only
if the corporation itself commits gross negligence.” THI of Tex. at Lubbock I, LLC
v. Perea, 329 S.W.2d 548, 581-82 (Tex. App. – Amarillo 2010, pet. denied), citing
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). In order to impute
liability for malice or gross negligence to a corporate entity for the acts of its
agents, a plaintiff must show that the corporation authorized the tortious act, that
the corporation recklessly employed an unfit person who committed the act, that
the corporation ratified or approved the act, or that the employee was employed in
a managerial capacity or was a vice-principal of the corporation and was acting in
the scope of his employment. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,
391 (Tex. 1997).
Melden & Hunt moved for summary judgment based both on the Garzas’
failure to plead any basis for determining that the corporation itself committed
35
malice or gross negligence and furthermore moved for a no-evidence summary
judgment on the various bases for imputing gross negligence or malice to a
corporate entity. Though the Garzas repled to assert a claim for exemplary
damages by specifically referencing the standards of malice and gross negligence
following, they failed to include any pleading for imputing any such liability to the
corporation. (CR 94-102) As such, the trial court properly granted summary
judgment in the absence of any pleading to support imputed liability. See, e.g.,
Hyman Farm Serv., Inc. v. Earth Oil & Gas Co., Inc., 920 S.W.2d 452, 458 (Tex.
App. – Amarillo 1996, no writ) (plaintiff must plead, prove, and obtain findings on
an imputation theory in order to recover exemplary damages against a corporation
for the acts of an agent); see also Holt v. Hale, No. 04-14-00113-CV, 2014 WL
5838937, *2 (Tex. App. – San Antonio, Nov. 12, 2014, no pet.) (mem. op.) (where
party failed to replead after having been given opportunity to do so, court did not
err in dismissing suit); Clawson v. Wharton County, 941 S.W.2d 267, 273 (Tex.
App. – Corpus Christi 1996, writ denied) (failure to object or request additional
time to amend pleading, on ground that summary judgment is attempt to
circumvent special exceptions, waves any such alleged error), citing San Jacinto
River Auth. v. Duke, 783 S.W.2d 209 (Tex. 1990).
Beyond the pleading defect, the Garzas have waived review for yet another
reason. Below, the Garzas nowhere argued that fact issues exist on any of the
36
several methods for imputing gross negligence or malice. See TEX. R. CIV. P.
166a(c). (CR 103-11) Moreover, on appeal, they have failed to assert any
appellate challenge to that ground on which the summary judgment, in part, rests.
Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (when
summary judgment does not specify or state grounds, summary judgment will be
affirmed on appeal if any of the grounds presented in the motion are meritorious);
Ramirez v. First Liberty Ins. Corp., ___ S.W.3d ___, 2014 WL 6766688, *1 (Tex.
App. – El Paso, Dec. 1, 2014, no pet. h.) (“If the appellant fails to challenge each
ground on which summary judgment could have been granted, we must uphold the
summary judgment on the unchallenged ground.”). As a result, the summary
judgment must be affirmed as to the Garzas’ claim for exemplary damages.
2. The Garzas Failed to Explain in Their Response, Beyond a
General Reference to Their Summary-Judgment Evidence,
the Existence of Any Fact Issues on Their Claim for
Exemplary Damages and, Again, Present Nothing for
Review
In response to Melden & Hunt’s no-evidence motion for summary judgment,
the Garzas included a listing of 19 exhibits and a general reference to all 19 of
those exhibits (with a somewhat more specific reference to 11 of those exhibits) as
supportive of their claim for exemplary damages. Indeed, the entirety of their
summary-judgment response to the no-evidence motion on their claim for
exemplary damages was as follows:
37
6.8 Further, M&H argues that there is no evidence to support
exemplary damage. The Garzas would point to the Exhibits attached
hereto but particularly to Nos. 3-5 and 10 – 17.
(CR 110) That response was wholly insufficient to raise any fact issue and
authorize any review by either the trial court or this Court on appeal.
A non-movant must expressly present issues he contends avoid summary
judgment by written answer to the motion or by other written response; and such
issues are not expressly presented by mere reference to the summary-judgment
evidence. Vice v. Kasprzak, 318 S.W.3d 1, 11 n.5 (Tex. App. – Houston [1st Dist.]
2009, pet. denied), citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 340-42 (Tex. 1993). So, for example, where a non-movant fails to make any
argument why summary judgment should not be granted on a claim, including the
specification of the elements on which fact issues exist, simply referring instead to
attached evidence, an appellate court cannot reverse. Sandhu v. Pinglia
Investments of Tex., L.L.C., No. 14-08-00184-CV, 2009 WL 1795032, *6 (Tex.
App. – Houston [14th Dist.], Jun. 25, 2009, pet. denied) (mem. op.); Mercier v.
Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 774 (Tex. App. – Corpus
Christi 2007, no pet.) (“Because Mercier failed to specifically address the elements
of each cause of action on which he claimed fact issues existed and because he
failed to expressly present any issues precluding summary judgment in his written
response, Mercier did not raise any fact issues precluding summary judgment”).
38
Moreover, a general reference to a voluminous record that does not direct
the trial court and parties to the evidence on which the non-movant relies with
sufficient specificity falls short of that burden. Rogers v. Ricane Enterprises, Inc.,
772 S.W.2d 76, 81 (Tex. 1989); see also Guevara v. Lackner, 447 S.W.3d 5669
(Tex. App. – Corpus Christi 2014, no pet.) (“Dr. Guevara filed 355 pages of
exhibits in support of his response to the Lackners’ no-evidence motion for
summary judgment. Dr. Guevara cited only generally to some exhibits, and we
will not review those exhibits.”); Murphy v. Reynolds, No. 02-10-00229-CV, 2011
WL 4502523, *6 (Tex. App. – Fort Worth 2011, no pet.) (mem. op.) (citing Ricane
and noting party’s failure to refer to specific portions of ninety-page appendix
attached to summary-judgment response).
Below, the Garzas never set forth how their evidence – or which specific
portions of it – raised fact issues as to their claim for exemplary damages based on
either malice or gross negligence. In fact, they don’t even reference whether the
evidence in question relates to malice, gross negligence, and/or both and never
identified any specific elements of either on which fact issues purportedly existed.
As a result, the Garzas have waived this point and, again, present nothing for this
Court to review. The summary judgment should be affirmed.
9
The pinpoint citation to this principle within the Guevara decision is not yet available on
Westlaw.
39
3. The Governing Standard of Review of Melden & Hunt’s
No-Evidence Motion on Malice and Gross Negligence
Should Require Clear and Convincing Evidence
Because malice and gross negligence must be proven by clear and
convincing evidence, courts generally apply a heightened standard of review on
appeal. See Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004)
(noting that “whenever the standard of proof at trial is elevated, the standard of
appellate review must likewise be elevated); TEX. CIV. PRAC. & REM. CODE §
41.003(a)(3) (West 2014) (gross negligence must be proven by clear and
convincing evidence). As such, appellate courts should review the summary-
judgment evidence in this case to determine whether a fact finder could have
formed a firm belief or conviction that Melden & Hunt intended to cause harm or
that its conduct deviated so far from the standard of care so as to create an extreme
risk and that Melden & Hunt was subjectively aware of, but consciously indifferent
to, this risk. Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d
238, 248-49 (Tex. 2008); see also U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,
137 (Tex. 2012) (“In reviewing an award for exemplary damages, we conduct a
legal sufficiency review under the ‘clear and convincing standard.’ . . . ‘“Clear and
convincing’ means the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.”), quoting TEX. CIV. PRAC. & REM. CODE § 41.001(2) (West
40
2014). This has been the governing standard for more than a decade. See Garza,
164 S.W.3d at 632, quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
“A no-evidence summary judgment is essentially a pretrial directed verdict,
and [courts] apply the same legal sufficiency standard in reviewing a no-evidence
summary judgment as [they] apply in reviewing a directed verdict.” King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). And, the same standard
used in determining whether a directed verdict would have been proper is the
standard employed to determine whether a jury finding on a question of fact has
any support in the evidence. See, e.g., Perez v. Perez, No. 09-05-00024-CV, 2005
WL 2092807, *1 (Tex. App. – Beaumont, Aug. 31, 2005, no pet.) (mem. op.),
citing TEX. R. CIV. P. 301; see also In re C.J.F., 134 S.W.3d 343, 350-51 (Tex.
App. – Amarillo 2003, pet. denied) (“Initially we note that an appeal from the
denial of a motion for instructed or directed verdict is essentially a challenge to the
legal sufficiency of the evidence”; court applied clear and convincing standard to
appeal from denial of motion for directed verdict), citing Fein v. R.P.H., Inc., 68
S.W.3d 260, 265 (Tex. App. – Houston [14th Dist.] 2002, pet. denied). Given that
the clear and convincing burden at the trial court level translates to a heightened
standard of review for questions of legal sufficiency on appeal and given that a no-
evidence motion for summary judgment is essentially a pretrial complaint of legal
41
insufficiency, the same heightened standard should apply to the review of Melden
& Hunt’s no-evidence motion regarding exemplary damages.
Melden & Hunt candidly acknowledges that some appellate courts have
relied on the decision in Huckabee v. Time Warner Entertainment Co., 19 S.W.3d
413, 421 (Tex. 2000) to reject the need for clear and convincing evidence of malice
or gross negligence at the summary-judgment stage. See, e.g., Hardy v.
Bennefield, 368 S.W.3d 643, 648-49 (Tex. App. – Tyler 2012, no pet.); Klentzman
v. Brady, 312 S.W.3d 886, 904 n.18 (Tex. App. – Houston [1st Dist.] 2009, no
pet.); DR Partners v. Floyd, 228 S.W.3d 493, 497 (Tex. App. – Texarkana 2007,
pet. denied); Pardo v. Simons, 148 S.W.3d 181, 185-86 (Tex. App. – Waco 2004,
no pet.); Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App. –
Fort Worth 2001, pet. denied). However, these opinions all rely on Huckabee,
which was decided in the context of a traditional summary judgment and not the
subsequent no-evidence standard set forth above – a standard that expressly
permits review on appeal against an elevated standard. 19 S.W.3d at 421-22.
Huckabee also predates the Supreme Court’s decision in In re J.F.C., 96 S.W.2d
256, 264-66 (Tex. 2002), in which the Supreme Court applied a clear-and-
convincing standard of review to a sufficiency determination for the first time.
While the Supreme Court subsequently applied the ordinary standard of
review in the context of a no-evidence summary judgment in Forbes, Inc. v.
42
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003), it failed to recognize
its holding in In re J.F.C. Similarly, the Forbes Court failed to acknowledge the
identity between a no-evidence summary-judgment and a motion for directed
verdict, to which a heightened standard of review on appeal does apply. Id. Since
then, the Supreme Court has been requested at least twice to reconsider this stance;
though other rulings obviated the need for the Court to address the issue. Freedom
Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 859 n.49 (Tex. 2005); New Times,
Inc. v. Isaacks, 146 S.W.3d 144, 168 (Tex. 2004).
Melden & Hunt recognizes that this Court cannot avoid Supreme Court
authority; and, thus, it simply preserves its ability to make this argument to the
Supreme Court in the event necessary. Regardless, as will be demonstrated below,
whether the evidence is viewed under a heightened appellate standard or under the
ordinary standard of review, the result is the same. The Garzas failed to produce
any evidence, much less clear and convincing evidence, to support a claim for
exemplary damages under either a malice or gross negligence theory.
4. The Garzas Failed to Raise a Fact Issue on Malice or Gross
Negligence
Assuming the Court were to overlook the Garzas’ clear waiver of any
challenge to the summary judgment on their claim for exemplary damages as
outlined above, the evidence they produced was wholly insufficient to establish a
fact issue as to either malice or gross negligence. As the Garzas acknowledge on
43
appeal, malice requires proof of a “specific intent by the defendant to cause
substantial injury or harm to the claimant.” TEX. CIV. PRAC. & REM. CODE §
41.001(7) (West 2014). Gross negligence requires proof of an “act or omission (A)
which when viewed objectively from the standpoint of the actor at the time of its
occurrence involves an extreme degree of risk considering the probability and
magnitude of the potential harm to others; and (B) of which the actor has actual,
subjective awareness of the risk involved, but nevertheless proceeds with
conscious indifference to the rights, safety, or welfare of others.” TEX. CIV. PRAC.
& REM. CODE § 41.001(11) (West 2014). “‘[E]xtreme risk’ is not a remote
possibility or even a high probability of minor harm, but rather the likelihood of
the plaintiff’s serious injury.” U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137
(Tex. 2012). The defendant must not only know of that risk, but its acts or
omissions must demonstrate indifference to the consequences. Id.
As proof of malice and gross negligence, the Garzas refer to four deposition
excerpts, during which the deponents testified that Melden & Hunt designed the
drainage system, that Melden & Hunt knew the Garzas’ lot sat lower than any
other house in the subdivision, that Melden & Hunt knew that water would run
from west to east (the same slope as the Garzas’ property), and that it would be
unreasonable for a homeowner to have to deal with continuous flooding. (CR 180,
182-85, 187-90, 207-08) These excerpts – either individually or taken together –
44
constitute no evidence of malice or gross negligence. Nothing in any of these
depositions excerpts points to a specific intent on the part of Melden & Hunt to
cause the Garzas substantial harm. Nothing in any of these deposition excerpts
points to any likelihood of serious injury, to knowledge on the part of Melden &
Hunt of any extreme risk of substantial injury, or to any conscious indifference on
the part of Melden & Hunt to an extreme degree of risk of substantial injury.10
The Garzas were obligated to establish breach of the governing standard of
care through expert testimony. See, e.g., FFE Transp. Servs., Inc. v. Fulgham, 154
S.W.3d 84, 91 (Tex. 2004) (expert testimony required where industry standards are
not within layperson’s knowledge). There is absolutely no discussion in any of
these deposition excerpts regarding the applicable standard of care or its breach.
See, e.g., Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App. – Houston
[1st Dist.] 1993) (plaintiff failed to offer expert testimony that the engineering
design did not meet professional standards), aff’d as modified, 901 S.W.2d 434
(Tex. 1995). Three of the deposition excerpts are from Fred Kurth, a Melden &
Hunt engineer who, while certainly qualified in his field, never testified regarding
the applicable standard of care nor to its breach.11
10
Here, too, the Garzas have failed to support their contentions with any discussion of relevant
authority, contrary to the mandate of Texas Rule of Appellate Procedure 38.1(i).
11
Curiously, the Garzas do not cite to the testimony of their own experts to raise a fact issue on
malice or gross negligence – perhaps because those exhibits (5, 18, and 19) were inadmissible as
wholly conclusory and incompetent summary-judgment evidence. See HIS Cedars Treatment
45
The Garzas offered no evidence that the slope of the land and the flow of
surface water was virtually certain to result in substantial injury or of any flooding
of the Garzas’ lot or home once built or that Melden & Hunt knew of the
likelihood or intended that result. Instead, the Garzas’ summary-judgment
evidence demonstrates that the volume of water directed towards the Garzas’ lot
resulted from factors that occurred after Melden & Hunt completed its work and
depended upon how the other lots in the subdivision were graded in connection
with the construction of homes – precluding satisfaction of any intent element or of
either the objective or subject prongs of gross negligence. (CR 220-21)
Specifically, the cited “evidence” fails to make any reference to the expected
nature of any harm from a prospective point of view – and certainly not to any
“extreme” risk of “substantial” injury. Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 248 (Tex. 2008) (“[T]he risk must be examined
prospectively from the perspective of the actor, not in hindsight”); Smith v.
Ctr. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004); Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 126 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) (“A
conclusory statement is one that does not provide the underlying facts to support the
conclusion”); see also Branton v. Wood, 100 S.W.3d 645, 648 (Tex. App. – Corpus Christi 2003,
no pet.) (“[A]n objection to the conclusory nature of summary-judgment evidence is an objection
to the substance of the evidence that may be raised for the first time on appeal.”). For example,
affiant Gerard Duhon references only his vague and unidentified “observations, measurements,
and experience” that the Garzas’ home was being flooded due to deficiencies in the development
drainage. (CR 121) Moreover, he nowhere identified the applicable standard of care or how
Melden & Hunt breached it. (CR 120-21) Similarly, Raymond Helmer opined that the lots were
improperly graded, though he admitted that he did nothing to determine whether they were
properly graded or not and offered no facts in support of that opinion. (CR 212, 218, 220-21)
Regardless, neither witness offered any evidence of the necessary culpability and mental state
required for a showing of malice or gross negligence, particularly given their use of hindsight.
46
O’Donnell, 288 S.W.3d 417, 423 (Tex. 2009) (“‘Extreme risk’ is not a remote
possibility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff”). Indeed, only if the defendant’s act or
omission is “unjustifiable” and likely to cause serious harm can it be grossly
negligent, much less malicious. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10,
22 (Tex. 1994). The Garzas failed to point to any such evidence of a known or
intended extreme risk of substantial injury and never identified just what act or
omission on the part of Melden & Hunt is at issue, other than generally referring to
the work Melden & Hunt was hired to do in connection with the subdivision.12
At its core, the Garzas’ evidence offers nothing more than the truism that
water flows downhill, combined with the location of the Garzas’ lot downhill.
That uninformative contention cannot be the basis for an award of exemplary
damages without further proof of culpability and the requisite mental state.
Without specific evidence demonstrating what, if anything, Melden & Hunt
supposedly did or did not do to cause the Garzas injury and without evidence that
such act or omission was intended to cause substantial injury to the Garzas or that
Melden & Hunt knew such substantial injury was virtually certain to occur but
12
Though the Garzas assert in their brief that this evidence demonstrates that Melden & Hunt
designed the drainage plan for the subdivision such that water flowed toward the Garzas’ lot
rather than to the street and into the municipal draining system, the cited excerpts say nothing of
the kind. There is no evidence that Melden & Hunt intentionally designed the drainage plan to
cause substantial flooding to the Garzas’ property nor that Melden & Hunt was aware of an
extreme degree of risk that substantial injury would occur and yet acted with conscious
indifference.
47
acted with conscious indifference nevertheless, the Garzas simply cannot prevail
on a claim for exemplary damages. The summary judgment must be affirmed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee Melden & Hunt, Inc.
respectfully requests that this Court affirm the trial court’s judgment and that the
Court grant Appellee such other and further relief to which it is entitled.
Respectfully submitted,
GONZALEZ, CHISCANO, ANGULO & THE LAW OFFICE OF JACQUELINE M.
KASSON, P.C. STROH, P.C.
Henry B. Gonzalez III Jacqueline M. Stroh
State Bar No. 00794952 State Bar No. 00791747
Taylor Williams 10101 Reunion Place, Suite 600
State Bar No. 24056536 San Antonio, Texas 78216
613 N.W. Loop 410, Suite 800 (210) 477-7416
San Antonio, Texas 78216 (210) 477-7466 (telecopier)
(210) 569-8500 jackie@strohappellate.com
(210) 569-8490 (telecopier)
hbg@gcaklaw.com
twilliams@gcaklaw.com
By: /s/ Jacqueline M. Stroh
Jacqueline M. Stroh
ATTORNEYS FOR APPELLEE, MELDEN & HUNT, INC.
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION
Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned
certifies that this brief complies with the type-volume limitations and that,
exclusive of the exempted portions, the brief contains 12,458 words (counting all
48
appropriate footnotes) and that the brief has been prepared in proportionally-
spaced typeface using Times New Roman Font 14 in body text and Font 12 in
footnotes.
/s/ Jacqueline M. Stroh
Jacqueline M. Stroh
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing Brief of Appellee was on this 12th
day of January, 2015, served by in accordance with the Texas Rules of Appellate
Procedure on the following counsel of record:
Alberto T. Garcia, III
Adrian R. Martinez
Garcia & Martinez, L.L.P.
6900 N. 10th Street, Suite 2
McAllen, Texas 78504
albert@garmtzlaw.com
adrian@garmtzlaw.com
Counsel for Appellants
/s/ Jacqueline M. Stroh
Jacqueline M. Stroh
49
Page 2 of 4
Westlaw"
Page I
Not Reported in S.V/.3d, 2013 WL 3517743 (Tex.App,-Corpus Christi)
(Cite as: 2013 WL 3517743 (Tex.App.-Corpus Christi))
Only the Vy'estlaw citation is currently available. timely flrled; (2) statements made in Melden &
Hunt's summary judgment motion on statutes of re-
SEE TX R RAP RULE 47.zFOPt DESIGNATION pose and limitations were not judicial admissions
AND SIGNING OF OPINIONS. with respect to the date the Garzas' causes of action
accrued; and (3) the Garzas were not entitled to a
MEMORANDUM OPINION good-cause extension under $ 150.002 of the Texas
Civil Practice and Remedies Code. ÌWe dismiss this
Court of Appeals of Texas, interlocutory appeal for lack ofjurisdiction.
Corpus Christi-Edinburg.
MELDEN & HUNT, INC., Appellant, I. BACKGROUND
Alberto and Leticia Garza, individually and as
Alberto R. GARZA and Leticia l. Garza, individu- next friends of Alexandra l. Garza and Kassandra
ally and as next friends of Alexandra L Garza and R. Garza ("the Garzas"), filed suit against Melden
Kassandra R. Garza, Appellees. & Hunt and Gary Burch dlbla/ Burch Construction,
Inc. on April 22,2008, urging that Melden & Hunt
No. l3-11-O0594{V had negligently prepared the survey of their home
July I1,2013. in the Chateau Estates subdivision and negligently
fumished and finished the floor elevation of their
On appeal from the 92nd District Court of Hidalgo home, causing the home to flood several times in
County, Texas. Ricardo P. Rodriguez, Jr., District 2007, The Garzas claimed a total loss in value to
Judge. their home, mold issues, and associated health
Henry B.
Gonzalez, III, Gonzales, Chiscano, An- problems. On December 4,2008, the Garzas filed a
gulo &
Kasson, P.C., Sharon E. Callaway, Crofts & certificate of merit that had been prepared by Ger-
Callaway, San Antonio, TX, for Appellant. ard H. Duhon, who stated that he practiced in the
same engineering field as Melden & Hunt. Duhon
Alberto T. Garcia, III, Adrian Rafael Martinez, opined that Melden & Hunt failed to direct surface
Garcia &li4afünez, Edinburg, TX, for Appellees. drainage from surrounding properties away from
the Garzas' home and failed to provide for drainage
of water from the home.
Before Chief Justice VALDEZ, and Justices
BENAVIDES, and PERKES. On June 1,2010, Melden & Hunt filed a mo-
tion to dismiss, stating that the certificate of merit
did not comply with section 150.002 of the Texas
MEMORANDUM OPINION Civil Practice and Remedies Code. See id. $
Memorandum Opinion by Justice PERKES, 150.002. Melden & Hunt later supplemented its
*l Melden & Hunt, Inc., a surveying and en- motion to dismiss, urging that the certificate of
gineering firm, appeals from a trial court order merit was also untimely filed.
denying its motion to dismiss pursuant to section
150.002 of the Texas Civil Practice and Remedies Melden & Hunt had previously filed a tradi-
Code. See TEX. CIV. PRAC. & REM.CODE ANN, tional and no-evidence motion for summary judg-
$ 150.002 (West 2003). By three issues, Melden & ment on grounds that the claims were barred by
Hunt argues: (l) the trial court abused its discretion statutes of repose and limitations because at least
in denying the motion to dismiss because the affiant ten years had elapsed since the completion of the
did not practice in the same area of practice as survey work on Chateau Estates. The trial court
Melden & Hunt and the certificate of merit was un-
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Page 3 of4
Page2
Not Reported in S.W.3d,2013 WL 3517743 (Tex.App.-Corpus Christi)
(Cite as: 2013 WL 3517743 (Tex.App.-Corpus Christi))
denied the motion for summary judgment, which is peal apply "only to a cause of action that accrues on
not before us in this appeal. The trial court also or after the effective date of this Act [September l,
held a hearing on the motion to dismiss and denied 20051." 4ct of May 18, 2005,79th Leg., R.S., $$ 4,
it. This appeal ensued. 5 ch. 208, 2005 Tex. Gen. Laws 369,370; see also
Hughes, 2010 WL 862861, at *1. Therefore, we
II. APPELLATE JURISDICTION have appellate jurisdiction in this case only if the
Melden & Hunt seeks to appeal from an inter- Garzas' cause of action accrued on or after Septem-
locutory order; however, interlocutory orders are ber 1,2005.
not appealable unless explicitly made so by stat-
ute. Stary v. DeBord, 967 S.W.2d 352, 352-53 III. ACCRUAL OF CAUSE OF ACTION
(Tex.l998); see qlso Hughes v. Bay Areq The determination of when a cause of action
Montessori House, Inc., No. 14-{9-{041O-CV, accnres is a legal question. See Moreno v. Sterling
2010 V/L 862861, at *l (Tex.App.-Houston [4th Drug, \nc.,787 S.W.2d 348, 351 (Tex.1990). Gen-
Dist.l March 11, 2010, no pet.) (mem.op.). Appel- erally, a cause of action accrues and the statute of
late courts are obligated to review sua sponte issues limitations begins to run when facts come into ex-
affecting their own jurisdiction. See M.O. Dentql istence that authorize a claimant to seek a judicial
Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004); see remedy. Provident Life & Accident Ins. Co. v.
also Garcia v. State Farm Lloyds, 287 S.W.3d 809, Knott, 128 S.W.3d 211, 221 (Tex.2003); see also
812 (Tex.App.-Corpus Christi 2009, pet. denied). Hughes,2010 WL 862861, at *2 (citing Apex Tow-
When construing a statute that establishes appellate ing Co. v. Tolin,4l S.W.3d 118, 120 (Tex.200l)).
jurisdiction, this court cannot expand its jurisdic- This principle applies even if all resulting damages
tion beyond that conferred by the legislature. have not yet occurred. S.V. v. R.V.,933 S.W.2d 1, 4
Jani-King of Memphis, Inc. v. Yqtes, 965 S.W,2d (Tex.1996); see also Hughes,2010 VYL 862861, aÍ
665, 668 (Tex.App.-Houston [4th Dist.] 1998, no *2. In cases involving allegedly faulty professional
pet.); see also Hughes,2010 WL 862861,at*1. advice, the claimant suffers legal injury when the
advice is taken. Murphy v. Campbell, 964 S.W.2d
*2 Chapter 150 of the Texas Civil Practice and 265,270 (Tex.l997).
Remedies Code is the only statute that might
provide Melden & Hunt with an interlocutory ap- Presuming, for the sake of argument only, that
peal in this case. However, the original version of the discovery rule applies, then the Garzas'cause of
this statute did not provide for an interlocutory ap- action accrued when they knew or in the exercise of
peal from a trial court's denial of a motion to dis- ordinary diligenÕe should have known of Melden &
miss for failure to comply with Chapter 150, See Hunt's alleged negligence and the alleged injury
Act of lune 2, 2003, 78th Leg., R.S., ch. 204, $ resulting therefrom. See id. at 271. The undisputed
20.01,2003 Tex. Gen. Laws 847, 896-97 (amended evidence shows that before September l, 2005, all
2005,2009); see also Hughes,2010 V/L 862861, at of the following occurred: (l) Melden & Hunt com-
*1. The 2009 amendments to Chapter 150 apply pleted its survey, supervision, and any grading
"only to an action or arbìtration f,rled or com- work for the home; (2) Albefio Garza purchased the
menced on or after the effective date of this Act home from the builder in November 1998; (3) ac-
[September l, 20091." Act of ll4ay 29, 2009, 8lst cording to Alberto Garza's sworn testimony, in the
Leg., R.S., ch. 789, $$ 3, 4, 2009 Tex. Sess. Law summer of 1999 or 2000, the Garzas experienced
Serv., ch. 789 (S.8.1207); see also Hughes, 2010 "ponding" in their backyard that prompted Alberto
WL 862861, at *1. The action in this case was filed to call the builder and to "plead" with the builder
before September 1, 2009. The 2005 amendments "for assistance with the ponding;" (4) the Garzas'
to Chapter 150 that provide for an interlocutory ap- former neighbor, Rosendo Hinojosa, testified at his
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Page 4 of 4
Page 3
Not Reported in S.W.3d, 2013 WL 3517743 (Tex.App.-Corpus Christi)
(Cite as:2013 WL 3517743 (Tex.App.-Corpus Christi))
deposition that prior to December 2004, Alberto
Garza complained to him about water from the
backyard coming inside the home and flooding the
family room; and (5) prior to March 2005, Hinojosa
witnessed Alberto building a "berm" around his
house 'to prevent another flooding incident.' There-
fore, we conclude that the Garzas cause of action
accrued before September l, 2005. See Hughes,
2010 WL 862867, at*2.
IV. CONCLUSION
*3 Even if the discovery rule applies, the Gar-
zas' cause of action accrued before September l,
2005. Because the cause of action accrued before
September 1,2005, the version of Chapter 150 ef-
fective before this date applies to this case. See Act
of May 18, 2005, 79th Leg., R.S., $$ 4, 5, ch. 208,
2005 Tex. Gen. Laws 369,370. That version does
not provide for an interlocutory appeal from the
denial of a motion to dismiss under Chapter 150.
See Act of 2003, 78th Leg. R.S., ch, 204, S 20.01,
2003 Tex. Gen. Laws 896, 897 (amended 2005,
2009); see qlso Hughes, 2010 WL 862861, at *2.
Accordingly, we lack appellate jurisdiction, and we
dismiss this appeal.
Tex.App.-Corpus Christi,2O 13.
Melden & Hunt, lnc. v. Garza
Not Reported in S.W.3d, 2013 WL 3517743
(Tex.App.-Corpus Christi)
END OF DOCUMENT
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TEXAS RULE OF CIVIL PROCEDURE 166a
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory judgment may, at any time after the adverse
party has appeared or answered, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part thereof. A summary
judgment, interlocutory in character, may be rendered on the issue of liability alone
although there is a genuine issue as to amount of damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-
claim is asserted or a declaratory judgment is sought may, at any time, move with
or without supporting affidavits for a summary judgment in his favor as to all or
any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall
state the specific grounds therefor. Except on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for hearing. Except on
leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response. No oral
testimony shall be received at the hearing. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the
pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter
and before judgment with permission of the court, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly
presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal. A summary judgment may be based
on uncontroverted testimonial evidence of an interested witness, or of an expert
witness as to subject matter concerning which the trier of fact must be guided
solely by the opinion testimony of experts, if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on
File. Discovery products not on file with the clerk may be used as summary
judgment evidence if copies of the material, appendices containing the evidence, or
a notice containing specific references to the discovery or specific references to
other instruments, are filed and served on all parties together with a statement of
intent to use the specified discovery as summary judgment proofs: (i) at least
twenty-one days before the hearing if such proofs are to be used to support the
summary judgment; or (ii) at least seven days before the hearing if such proofs are
to be used to oppose the summary judgment.
(e) Case not Fully Adjudicated on Motion. If summary judgment is not
rendered upon the whole case or for all the relief asked and a trial is necessary, the
judge may at the hearing examine the pleadings and the evidence on file,
interrogate counsel, ascertain what material fact issues exist and make an order
specifying the facts that are established as a matter of law, and directing such
further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. Defects in the form of affidavits or
attachments will not be grounds for reversal unless specifically pointed out by
objection by an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a
party opposing the motion that he cannot for reasons stated present by affidavit
facts essential to justify his opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the
court at any time that any of the affidavits presented pursuant to this rule are
presented in bad faith or solely for the purpose of delay, the court shall forthwith
order the party employing them to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur,
including reasonable attorney’s fees, and any offending party or attorney may be
adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without
presenting summary judgment evidence 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 burden of proof at trial. The
motion must state the elements as to which there is no evidence. The court must
grant the motion unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.