Maria Gonzalez d/b/a M.D. Longoria Construction, Inc. v. Alberto and Brenda Salinas--Appeal from 49th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-06-00266-CV
Maria GONZALEZ d/b/a M.D. Longoria Construction,
Appellant
v.
Alberto SALINAS and Brenda Salinas,
Appellees
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2002-CVQ-001392-D1
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED

This is an appeal from a judgment rendered in favor of Alberto and Brenda Salinas against Maria Gonzalez d/b/a/ M.D. Longoria Construction. In one issue on appeal, Gonzalez contends the expert report and testimony of the Salinases' expert were speculative and conclusory and, therefore, legally and factually insufficient to support the trial court's judgment. We affirm.

Factual and Procedural Background

The Salinases contracted with Gonzalez to build their home in Laredo, Texas. After they moved into their new home, however, they began noticing cracks in some of the bricks. Thus, the Salinases engaged the services of Thomas P. O'Connor, Jr., a civil engineer with O'Connor Engineering & Science, Inc., to conduct an investigation and evaluate their report of structural failure. O'Connor prepared a written report and testified live at trial. Based upon his observations, evaluation of the foundation design, and testing of soil samples, O'Connor concluded that the foundation was not appropriate for the soil conditions, which in turn caused the structural failure of the home. Gonzalez did not object to O'Connor's testimony at trial.

All matters were submitted to the trial judge who, after hearing the evidence and arguments, entered judgment for the Salinases in the amount of $9,950 in actual damages, $7,200 in attorneys fees, $5,000 in attorneys fees for an appeal to the Fourth Court of Appeals, and $2,500 for an appeal to the Texas Supreme Court, along with pre- and post-judgment interest. Gonzalez argues that because O'Connor's expert report and testimony were speculative and conclusory, the evidence is legally and factually insufficient to support the trial court's judgment.

Standard of Review

In conducting a legal sufficiency review, we review the evidence in the light most favorable to the verdict giving "credit [to] favorable evidence if reasonable jurors could and disregard[ing] contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient when the record reveals one of the following situations: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810.

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence, and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We are not, however, a fact finder and may not pass on the credibility of the witnesses or substitute our judgment for that of the jury. Maritimes Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

Discussion

Because Gonzalez did not object to the admissibility of O'Connor's expert opinion in the trial court, she cannot now, for the first time on appeal, challenge O'Connor's scientific methodology; instead, she is restricted to complaining that the expert testimony is speculative or conclusory on its face. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). The supreme court has reasoned that examination of an expert's underlying methodology is a task for the trial court, as gatekeeper, and is not an analysis that should be undertaken for the first time on appeal. Id. Such a rule allows the trial court to determine whether the expert testimony is sufficiently reliable and ensures a full record will be available to the appellate courts to evaluate the legal and factual sufficiency of the record without looking beyond the record. Id. Thus, where an objection is made at the trial court, an appellate court must look beyond what the expert said to evaluate the reliability of the expert's opinion. Id. Such a review involves an evaluation of the underlying methodology, technique, or foundational data used by the expert. Id. However, when no objection was made at trial and the testimony is challenged the first time on appeal as conclusory and speculative and therefore non-probative on its face, an appellate court does not go beyond the face of the record to test the reliability of the expert's testimony. Id.

An expert opinion is conclusory when it is given with no factual substantiation. United Servs. Auto. Ass'n v. Croft, 175 S.W.3d 457, 463 (Tex. App.--Dallas 2005, no pet.). To avoid being considered conclusory and speculative, the opinion must have a reasoned basis that the expert is qualified to state, based on knowledge, skill, experience, training, or education. Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999). "In other words, the expert must explain how he reached his conclusion." Croft, 175 S.W.3d at 464. Our task, therefore, is to determine whether O'Connor gave a reasoned basis for his opinions and explained how he reached his conclusions.

O'Connor, who has a degree in civil engineering and specializes in geotechnical and structural engineering, testified that he had about fourteen years of experience directly related to the type of work involved in this case. Upon contracting with the Salinases to perform an evaluation of their home, he did a visual inspection of the areas of concern, took photographs, and evaluated the onsite data he collected. He collected two soil samples from the area, put together all the information he had collected, and concluded that there was a problem with the soil conditions. In evaluating the design of the foundation and the soil from the samples he collected, he concluded the foundation design was not appropriate for the soil conditions. The foundation was not appropriate for that particular soil because the soil was of high plasticity clay, which has a tendency to shrink significantly when dry and swell significantly when wet, thus causing substantial movement under a foundation. According to O'Connor, for this type of soil, the foundation must be designed more appropriately, generally with more reinforcement, more concrete. It must be able to withstand the deferential movement caused by the soils, which according to O'Connor is something best done during the design phase and before construction. Thus, to avoid the problem that occurred, deeper grade beams greater than twenty-four inches in depth should have been used; the spacing between the trenches should have been closer; and a thicker rebar, greater than a No. 5, should have been used.

O'Connor further testified to the damages he observed. He saw significant movement in the garage area on the south side of the home, causing sheering, or cracking, of the bricks. There was also significant cracking in the slab in the garage and fractured tile in the porch area. In order to remedy the situation, O'Connor recommended either a system of driven piles or concrete piers, which support the existing slab. According to O'Connor, the cost would be between $3,500 and $4,500.

O'Connor further stated that whoever was responsible for pouring the foundation is responsible for the damages. O'Connor stated, once again, his opinion that the foundation was an inappropriate design for this particular property. He also stated the foundation work was not performed in a good and workmanlike manner. He made all of his findings beyond a reasonable degree of professional engineering certainty.

During his testimony, O'Connor's written report was entered into evidence. In his report, O'Connor describes in detail the multiple locations of structural fracturing and differential movement that he identified during his investigation. He also states the result of his foundation design and geotechnical evaluation. The foundation design was appropriate for ideal soil conditions, but the conditions at this site were not ideal. Also, the grade beam traversing the garage, where there was the most significant failure, was too long and greater reinforcement and deeper grade beams may have prevented the structural failure. The geotechnical evaluation, or soil sampling, revealed the soils under the foundation are of a high plasticity classification. This type of soil shrinks when dry and swells when wet, which without the appropriate foundation design will cause structural failure. At the end of the report, O'Connor states that "[o]ur conclusions are based upon the observations made as part of the investigation and our professional experience." And, he concludes by stating that the fractures in the structure may be the result of differential movement in connection with expansive soils, and that expansive soils typically will cause structural failure in structures that are not designed to withstand the shrinking and swelling characteristics of high plasticity soils.

We do not find O'Connor's testimony and expert report to be conclusory or speculative. O'Connor's opinion was based on his education and experience, his inspection of the home, his evaluation of the foundation design, and his evaluation and testing of the soil. O'Connor's expert opinion is very similar to the expert testimony given in a foundation case from the Dallas Court of Appeals. See United Servs. Auto. Ass'n v. Croft, 175 S.W.3d 457 (Tex. App.--Dallas 2005, no pet.). In Croft, a structural engineer concluded that a plumbing leak had caused damage to the Crofts' foundation. Id. at 464. He based his opinion on his knowledge, training, and experience, his personal inspection of the home, the data and physical evidence, and a published treatise relied on by the engineering community. Id. at 466. As such, the Dallas Court of Appeals found his testimony was not conclusory.

Also in Croft, a foundation repair expert testified regarding the cost of repairing the Crofts' foundation. Id. The Dallas Court of Appeals found his testimony was not conclusory because he based his opinion on his evaluation of the home using his knowledge, training, and experience in the foundation repair industry. Id.

We note that much of Gonzalez's criticism of O'Connor's expert testimony and report relates to the reliability of the expert opinion and involves an evaluation of the underlying methodology, technique, or foundational data. Gonzalez, however, cannot object on these grounds for the first time on appeal. See Coastal Transp., 136 S.W.2d at 233. For instance, Gonzalez argues that O'Connor's opinion is conclusory because he did not eliminate other causes of the damage. Excluding other possible causes of the damages, however, is related to whether the expert's opinion was based on a reliable foundation. See E.I du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558-59 (Tex. 1995). Further, Gonzalez complains that there is too great of an analytical gap between the facts O'Connor relies on and his conclusions. An "analytical gap" inquiry, however, requires analyzing the underlying data forming the basis for the expert's opinion. See In re D.S., 19 S.W.3d 525, 529 (Tex. App.--Fort Worth 2000, no pet.). An analysis of the expert's foundational data or underlying methodology is a matter left to the trial court in its gatekeeping function and is not to be undertaken for the first time on appeal. Coastal Transp., 136 S.W.2d at 233.

We, therefore, hold that O'Connor's expert opinion was not conclusory or speculative and that the evidence is legally sufficient to support the trial court's judgment. (1)

Conclusion

We affirm the judgment of the trial court.

 

Karen Angelini, Justice

 

1. Gonzalez has not separately briefed the factual insufficiency of the evidence issue. See Tex. R. App. P. 38.1(h) (requiring a brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).