Sandra Adair, Et Al v. Veritas DGC Land, Inc.--Appeal from 212th District Court of Galveston County

Affirmed and Memorandum Opinion filed August 9, 2007

Affirmed and Memorandum Opinion filed August 9, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00254-CV

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SANDRA ADAIR, ET AL.,[1] Appellants

V.

VERITAS DGC LAND, INC., Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 01-CV-1068D

M E M O R A N D U M O P I N I O N

This case involves 232 plaintiffs who sued alleging property damage from seismic surveys conducted by appellee, Veritas DGC Land, Inc. (Veritas). Veritas moved for summary judgment on both traditional and no-evidence grounds. The trial court granted the summary judgment without specifying the grounds. Plaintiffs presents three overlapping issues on appeal. We affirm the trial court=s grant of summary judgment.

Factual and Procedural Background

In the spring of 2000, Veritas conducted a seismic survey of sixty square miles in Galveston County. Two-hundred-sixty-two plaintiffs filed suit against Veritas and others, alleging damage to their homes as a result of the survey. Plaintiffs= causes of action included private nuisance, negligence, gross negligence, fraud, constructive fraud, tortious act, strict liability, and exemplary damages.

Due to the large number of plaintiffs, the trial court ordered that the plaintiffs be divided into trial groups of thirty. The first trial group of thirty was set to go to trial in January of 2005. Summary judgment was rendered against thirteen plaintiffs of this first group of thirty. The remaining seventeen of the first trial group suffered a take-nothing judgment following a trial on the merits. The trial court then issued an AAmended Joint Discovery and Docket Control Order@ for the remainder of the case. Groups of thirty plaintiffs were set to go to trial every six months, beginning on January 23, 2006.

Veritas filed its motion for summary judgment as to all remaining plaintiffs on August 24, 2005, arguing both traditional and no-evidence grounds. The traditional grounds for summary judgment included: 1) collateral estoppel as to all of plaintiffs= claims; 2) strict liability and nuisance are inapplicable as a matter of law; 3) tortious act and exemplary damages are not recognized causes of action under Texas law; 4) no evidence exists of essential elements of fraud and constructive fraud; 5) negligence and gross negligence must fail because uncontradicted evidence establishes that plaintiffs= damages could not have been caused by the seismic survey, and plaintiffs do not have sufficient evidence to establish causation because their expert testimony does not satisfy the Daubert/Robinson standards.

The grounds for the no-evidence motion for summary judgment included: 1) as to constructive fraud, no evidence of a legal duty owed to the public or a fiduciary duty owed to plaintiffs, and no evidence that Veritas=s acts or omissions caused plaintiffs= damages; 2) as to the fraud claim, no evidence of a false material representation, that statements were made with knowledge of their falsity or recklessly without determining their truth, or intent that plaintiffs acted upon the representations, relied upon any representation, or suffered damage as a result of any representation by Veritas; and 3) as to the negligence and gross negligence claims, no evidence of causation.

The response by plaintiffs provided objections to Veritas=s motions for summary judgment, and legal arguments. Plaintiffs attached no evidence to their response the motion for summary judgment. The trial court found the motion for summary judgment to be meritorious and granted it without specifying grounds. This appeal followed.

Analysis

I. Plaintiffs Waived Several Issues By Briefing Waiver

The Rules of Appellate Procedure require that an appellant=s brief Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h) (emphasis added); see Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (holding that issues not supported by references to the record are waived, as are issues not supported by authority).

Plaintiffs have raised several issues that they do not brief or brief inadequately in the body of their argument. Plaintiffs= issues on appeal are:

1) that it was error generally to grant the summary judgment;

2) that it was error as a matter of law and an abuse of discretion to grant the summary judgment because

a) there was evidence establishing genuine issues of material fact on issues presented, and

b) because the trial court misapplied the summary judgment rules and standards; and

3) The trial court erred and abused its discretion in

a) denying Plaintiffs= motion to continue the summary judgment hearing

b) overruling the objection that the summary judgment effort was premature, and

c) denying the motion to reconsider.

However, Plaintiffs have waived issues 1, 2(b), and 3(c).

Under their first issue presented, plaintiffs included a footnote citing to Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970), and to PlexChem International, Inc. v. Harris County Appraisal District, 922 S.W.2d 930, 930B31 (Tex. 1996), for the proposition that a general issue stating that summary judgment was in error allows argument of all reasons therefor. However, this court has held that a general Malooly issue will only preserve a complaint if the ground challenged on appeal is supported by argument. Wortham v. Dow Chem. Co., 179 S.W.3d 189, 198 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Since no argument was presented under this general issue, it is waived. See id.

Plaintiffs= brief provided extensive citations to case law regarding the appropriate standards to be employed in deciding a summary judgment. These citations are not accompanied by any argument, other than a single sentence which says, AProper application of these rules and standards establishes trial Court error and requires remand for new trial on the merits.@ Plaintiffs have supplied neither references to the record nor any analysis to explain how the trial court erred in applying appropriate summary judgment standards. Therefore, issue 2(b), complaining of misapplication of summary judgment rules and standards, is also waived. See id.

Finally, issue 3(c) complains of error and abuse of discretion in denying the plaintiffs= motion to reconsider Veritas=s motion for summary judgment. After stating this issue in the issues presented, the motion to reconsider is never mentioned again. Issue 3(c) is, therefore, waived as well. See id.

II. Trial Court Did Not Err in Overruling Objection to Timing of the Summary Judgment Motion

The plaintiffs allege, in issue 3(b), that because the summary judgment hearing was conducted four days before the discovery deadline, the trial court erred and abused its discretion in overruling plaintiffs= objection to the premature nature of the motion for summary judgment. In support of this position, plaintiffs cite to the 1997 comment to Rule of Civil Procedure 166a, which is meant to inform the construction and application of the no-evidence summary judgment rule. See Tex. R. Civ. P. cmt. 166a. The comment provides, AA discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before.@ Id. (emphasis added).

However, the language of Rule 166a(i) does not mirror that of the comment, but rather states that a no-evidence motion may be brought after Aadequate time for discovery.@ Tex. R. Civ. P. 166a(i). In determining whether a time period for discovery has been adequate, we look to the nature of the cause of action, the nature of the evidence necessary to controvert the no-evidence motion, and the length of time the case had been active in the trial court. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Additional factors include the amount of time the motion for summary judgment was on file, whether the movant requested stricter time deadlines for discovery, the amount of discovery that had already taken place, and whether the deadlines in place were specific or vague. Id. We review the court=s determination of the adequacy of the time for discovery under an abuse of discretion standard. Id.

Here, the case had been active in the trial court for approximately three years and nine months when the motion for summary judgment was filed, and the active petition had been on file for approximately two years and eight months. Some of the evidence needed to create a fact issue could have been developed with a simple affidavit, such as evidence of false representations to support the fraud claim. Other evidence would need to be developed by expert testimony, such as the causation evidence necessary to rebut the no-evidence motion as to negligence, gross negligence, fraud and constructive fraud. This evidence takes time to develop, but as mentioned, the case had been active for nearly four years, giving plaintiffs plenty of time to develop such evidence.

The summary judgment motion had been on file for four months before the hearing. The record does not reflect, nor do plaintiffs assert, that Veritas requested stricter discovery deadlines. The deadlines in place were very specific, giving a date certain for discovery to be completed. It appears that virtually all of the required discovery had taken place, given that, according to Veritas, plaintiffs had propounded no discovery for almost a year before the summary judgment hearing. Additionally, one group of thirty plaintiffs had already gone to trial and lost on the merits. Each of the above factors indicates that plaintiffs had an adequate time for discovery. Therefore, we cannot hold that the trial court abused its discretion in overruling the objection that summary judgment motion was premature.

III. No Error in Denying Motion for Continuance

Similarly, plaintiffs argue that the trial court abused its discretion in denying the Plaintiff=s motion to continue the summary judgment hearing. The trial court=s denial of the motion for continuance is subject to a clear abuse of discretion standard of review. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. A nonexclusive list of factors we consider in deciding whether a court has abused its discretion in denying a motion for continuance to conduct further discovery include: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id.

Plaintiffs have shown no additional discovery that they would conduct if they had the time. Rather, they complain that the deposition of a key expert happened too close to the summary judgment hearing, due to delay from the erroneous suggestion of bankruptcy, and that he had not had the opportunity to review and sign his deposition transcript. Additionally, plaintiffs argue that the focus of the trial had been on: 1) the jurisdictional challenge of three governmental entities until mid-2004; 2) disposing of the claims of the thirty plaintiffs in the first trial group; and 3) settlement negotiations resulting in resolution with eight other defendants in July of 2004.

None of plaintiffs= arguments in the motion for continuance show what discovery was sought that would necessitate a continuance. Plaintiffs pointed out that Dr. Kiger=s deposition would be taken on December 16, 2005, three days before the summary judgment hearing, but did not indicate why his testimony was necessary, as compared to one of plaintiffs= other experts. Nor did plaintiffs indicate why they could not obtain the necessary evidence from Dr. Kiger in the form of an affidavit or report before the summary judgment hearing. Furthermore, as previously mentioned, the case had been active for nearly four years at the time of the motion for continuance.

The fact that the Afocus@ of the trial until early 2005 had been on jurisdictional issues, settlement negotiations, and taking the first group of plaintiffs to trial does not mitigate the fact that plaintiffs should have had plenty of time to conduct discovery. The central issues of the case did not change since it was first filedCthat seismic testing caused damage to plaintiffs= homes. Furthermore, the last of these events to occurCthe trial of the first plaintiff groupCended at the beginning of January 2005. This left almost twelve months for plaintiffs to conduct further discovery which could have been used to respond to the summary judgment motion. Given the amount of time plaintiffs had to conduct discovery, and the failure to show exactly what additional discovery was needed or its materiality, we hold that the trial court did not abuse its discretion in overruling plaintiffs= motion for continuance.

IV. Grant of Summary Judgment on Negligence and Fraud Causes of Action Was Appropriate

A. No-Evidence Summary Judgment

Veritas moved for no-evidence summary judgment on the negligence, gross negligence, fraud and constructive fraud causes of action on the grounds that plaintiffs had no evidence of causation, among other elements. The plaintiffs= response to summary judgment contained no evidence whatsoever. Clearly they failed to create a fact issue in response to the no-evidence motion. See Tex. R. Civ. P. 166a(i).

B. Traditional Motion for Summary Judgment

Veritas also moved for summary judgment on traditional groundsCattaching an affidavit from its own expert establishing that it caused no damage to the homes in question, and also attacking the qualifications of plaintiffs= expert witnesses. In their brief to this court, plaintiffs appears to complain that summary judgment was inappropriate because some of the evidence used by Veritas in the traditional motion actually creates a fact issue as to causation. Plaintiffs state that Veritas never Aconclusively negated one or more elements of Plaintiffs= claims.@ We disagree.

1) Standard of Review and Applicable Law

The propriety of a summary judgment is a question of law which we review de novo. LaGoye v. Victoria Wood Condo. Ass=n, 112 S.W.3d 777, 785 (Tex. App.CHouston [14th Dist.] 2003, no pet.). In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). We consider the evidence in the light most favorable to the non movant and resolve any doubt in the non movant's favor. Id.

A movant's right to summary judgment can be proved solely on the uncontroverted testimony of an expert witness if the subject matter is such that a trier of fact would 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. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). The effect of seismic testing on structures is a very technical area and necessitates expert testimony as to whether the testing caused the damage alleged in this case. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (AExpert testimony assists the trier of fact when the expert=s knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier of fact understand the evidence or determine a fact issue.@). Therefore, Veritas=s expert testimony may establish the right to summary judgment if it is uncontroverted, clear, direct and otherwise free from contradictions and inconsistencies.

Expert testimony may only be controverted by testimony from another expert. See Anderson, 808 S.W.2d at 55 (ALay testimony is insufficient to refute an expert=s testimony.@). Once the party opposing expert testimony objects, the proponent bears the burden of demonstrating its admissibility. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). To qualify as an expert witness under Robinson and Rule of Evidence 702, three requirements must be satisfied: 1) the witness must be qualified; 2) the proposed testimony must be scientific ... knowledge; and (3) the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Id. at 556. The trial court=s decision ruling on admissibility of experts is subject to an abuse of discretion review. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718B19 (Tex. 1998). This is the case within the context of a summary judgment motion as well. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30B31 (Tex. 1997).

2) Summary Judgment Appropriate

In this case, the affidavit of Veritas=s expert was competent summary judgment evidence because it was clear, direct, and free from contradiction or inconsistency, and could have been readily controverted by opposing evidence.[2] See Tex. R. Civ. P. 166a(c). Therefore, the burden fell to plaintiffs to raise a fact issue by controverting expert testimony. In addition, in its motion for summary judgment, Veritas had already challenged the qualifications of plaintiffs= expert witnesses, Charles Jenkins, Olan Adams, Gary Boyd, and Ebow Coleman. As a result, plaintiffs bore the burden of establishing the admissibility of any controverting expert opinions. See Robinson, 923 S.W.2d at 557.

As mentioned above, plaintiffs brought forth no evidence of their own, and rely solely on evidence contained within Veritas=s motion for summary judgment to create a genuine issue of material fact. Nowhere in the deposition excerpts from plaintiffs= experts is there mention of the qualifications of Jenkins, Adams or Boyd. Some of Ebow Coleman=s qualifications were contained within his excerpt in the motion for summary judgment. However, he testified that while he was a materials engineer and a Ascientist,@ he was not an expert in structural engineering, geophysics, explosions or the force required to crack foundations, seismic charges or vibroseis; nor was he an expert in interpreting seismic data. Because no evidence revealed the qualifications of three experts and the fourth lacked expertise in the areas most critical to establishing causation in this case, we cannot say that the trial court would have abused its discretion had it excluded all four of plaintiffs= witnesses based on the failure to prove the qualifications of their expert witnesses. See id.

Therefore, because plaintiffs failed to raise a genuine issue of material fact in response to either the no-evidence or traditional motions for summary judgment, we hold that summary judgment in favor of Veritas was appropriate on the fraud, constructive fraud, negligence, and gross negligence causes of action.[3]

Conclusion

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 9, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Appendix A

Sandra Adair, Ruth Aubuchon, Roy Bailey, Steven and Lynette Baker, Carl Barnett, Nathan and Laura Barnett, Edward and Martha Bartholmey, John and Gerry Bartlett, Janet L. Becich, Donald Benard, Jimmy and Roxie Berry, Gladys Bimage, Katrina Bimage, Jimmy Ray Bishop, Sr., Deborah and Daniel Bly, Dennis and Maria Boatright, Lois Bradley, Luna Bradley, Brad and Celia Brahm, John and Martha Burmester, Don and Millicent Burns, Jacqulyn Cage, Ricky A. Cappel, John and O. Lydia Castillo, Pamela Charles, Sigrid Clark, James Coker, Odell and Bobbie Cooper, Raymond and Edith Cox, Feliciano and Teodora Cruz, Sally and Don Cummings, Verlene Cummings, Robin Cunningham, Linda Curl, Agatha Currie, David Dady, Everett and Mary Darden, Anitra Davidson, Darrell and Anita Davis, Coy A. Dean, Allen and Lillian Denney, Don and Suzanne Denson, Mike and Nita Duffey, Richard and Lillian Easley, John and Agnes Eck, Raymond Edward, Dean and Carol Endsley, Louise K. Evans, Laresa Evans, Brett Farmer, Charles and Rosalind Farmer, Peggy Joyce Farmer, Gloria M. and Thomas T. Fisher, Estate of Joan Fox, John Frazier, Ralph Frazier, Ola Freeman, Sherman Gentry, Daniel and Mary Goan, Edward Goffney, Gerald Goffney, Armando and Bea Gonzalez, Greater New Hope Missionary Baptist Church, James and Susan Green, Hamilton Guyton, Jr., Keith and Janice Guyton, Gladys Hall, Gladys E. Hall, James and Wilma Hall, Paula Harris, Ronald and Janie Hartis, Perry Hatch, Raymond and Janet Henriksen, Audrey J. Hill, Corliss Hill, Aaron L. and Joyce Hobbs, Thelma Hobbs, Frances Hodge, Milton and Fay Hogg, Darlene Holmes, Beatrice Hufstetler, Carol Ina, Staffon Isaac, Kirk A. Jackson, Walter E. Jackson, James and Francine Jacks, Marie Jamison, John M. Jeffords, Katherine Jefferson, James and Brenda Jenkins, Oliver Jenkins, Otis Jenkins, Ponce de Leon Jenkins, Ronald C. Jenkins, Thelma Jenkins, Malcolm and Lois Jennings, John D. and Lillie D. Johnson, Joyce Johnson, Van Johnson, John P. and Susanne R. Johnston, Forestine Jones, Geneva Jones, Joe L. Jones, Linda G. Jones, Maxine Jones, Retha Hobbs King, Gary and Linda Kirkland, Karen Klock, Russel and Marilyn Knapp, Scott and Lana Koerber, Tom and Elizabeth Kwarteng-Amaning, Sophia Lamb, Alcide and Pearl Lee, Laney and Johnnie Lee, Mavis N. Lee, James Little, Myrtle Lee Little, Virgil Little, Sr., Cheryl Anne Litton, Doris Lovings, Charles and Mildred Lymuel, Teri Lymuel, Jack C. Maddox, Dennis and Carla Malone, Stella Martin, Morris and Mary Mason, Robert and Linda Mason, Diana Masters, Jacob and Danielle Mathews, George and Margaret Mathews, Thomas J. McCormick, Paul and Maria McCorry, Raymond and Yolanda Medina, Patricia Ann Mills, Mary Mixon, B. Moody, Barbara Mooney, Larry and Michelle Moore, Carlton Morgan, Freddie Morgan, Dewey and Shirley Morris, Janet Lee Morris, Mt. Olivet Baptist Church, D.R. Murphree Family Trust, Estelle Murphy, James Russell Nalepa, Jesse and Irene Navarro, Estelle Murphy O=Neal, Margaret Osborn, Richard and Kimberly Olmos, Will Thomas Palmer, David and Anna Payne, Jerri Pendleton, Christine Peterson, Doyle Peterson, Bill and Rowena Porter, Juan and Wilma Prado, Debra and Johnny Lee Praylor, Edna Praylor, Walter and Pamela Presley, Joyce Price, William H. Price, Sr., Kathy and Michael Prothro, Jacquelin Pruden, Sergio and Giselle Quintero, Ted E. and Norma J. Ramirez, Tashonda Randle, Jesse and Denice Rendon, John Reistino, Karen Remmert, Janeth Rhodes, James and Camille Rhone, Cruz Rivera, James N. Roach, Wilbert and Rosie Robinson, Gary Dwayne Rodgers, Manuel and Esther Rodriguez, Gertrude Rollins, Alan and Sharon Rowsey, Francisco R. Ruiz and Rosa E., David Sack, Barton C. Schindler as Legal Representative for Maurice S. Schindler, Patricia A. Schwalenberg, Jack and Diane Schwartz, Lisa Segovia, Prem K. and Nitina Sehgal, Elnita Simmons, Charles and Gwendolyn Simmons, Sr., Lura Skeel, Margaret Slater, Darren W. Smith, Shirley and Carl Smith, Jeff Smyers, Sharon Spates, Kathy D. Spells, St. James A.M.E. Church, Jody Starr, Harold and Virginia Stephenson, Antoinette and Oliver Stewart, Johnny and Sharon Stout, Wayne and Patricia Strelsky, Elliot W. and Brenda Sturman, Marla Surface, Jane Surman Grace Talas, Gerald E. Taylor III, Michael and Susan Taylor, Robert D. and Diana A. Taylor, Janet Thompson, Arthur and Virginia Tijerina, Tony Trainer, Gil and Carroll Valdez, Edward and Glinda Van Malden, Donald and Julie Vaughan, Terry and Cindy Vaughn, Barbara Walker, Etta Warner, Juanita Warren, Leon and Nelva Washington, Alicia and Milton Wade White, Christina Whitlock, Alsace L. Williams, Bennie Williams, Daisy Williams, David and Miriam Williams, Lillie Williams, Lucinda Williams, Willie and Charlotte Williams, Winston and Ernestine Williams, Sharyn Willis, Gisele Wilson, Patricia Wilson, Margaret Witherspoon, Elnora Woods, Rosemary Young, Willie Mae Young.

[1] A complete list of appellants is attached to this opinion as Appendix A.

[2] Neither below nor on appeal did plaintiffs object to the expert=s affidavit on the basis of qualifications, reliability or relevance, or otherwise claim it was deficient, so we need not consider whether it satisfied all admissibility requirements. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998).

[3] As mentioned above, plaintiffs also asserted causes of action on private nuisance, tortious act, strict liability, and exemplary damages. It is not clear at all from plaintiffs= brief whether they are appealing summary judgment on these issues. To the extent these causes of action were not waived, we note briefly that we cannot find a single Texas case recognizing a cause of action for Atortious act.@ Since this cause of action does not exist in Texas, summary judgment was appropriate. Similarly, the type of seismic testing done in this case will not support a cause of action for strict liability or negligence in Texas. See Klostermann v. Houston Geophysical Co., 315 S.W.2d 664, 665B68 (Tex. Civ. App.CSan Antonio 1958, writ ref=d). Traditional summary judgment was appropriate on those grounds as well. Since summary judgment was appropriate on all other causes of action, it was appropriate on the purported cause of action for exemplary damages as well, since exemplary damages are unavailable unless there is entitlement to actual damages. Nabours v. Longview Sav. & Loan Ass=n, 700 S.W.2d 901, 904 (Tex. 1985).