Clyde Ashworth, Paula Welch, James Alber, Mary Alber, Bret Bieri and Pamela Bieri v. Aspect Resources, LLC. Veritas DGC Land Inc., and Ameridian Technologies, Inc.--Appeal from 10th District Court of Galveston County

Opinion issued September 4, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00815-CV

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CLYDE ASHWORTH, PAULA WELCH, JAMES ALBER, MARY ALBER, BRET BIERI, AND PAMELA BIERI, Appellants

V.

ASPECT RESOURCES LLC, VERITAS DGC LAND, INC., AND AMERIDIAN TECHNOLOGIES, INC., Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 99CV0633

MEMORANDUM OPINION

This is an appeal from a final judgment signed on September 21, 2001. The final judgment consists of a partial, no-evidence summary judgment on the record with respect to certain causes of action and, specifically referenced in the final judgment, a directed verdict on other causes of action and a jury verdict on the one cause of action submitted to the jury.

The issues for this Court are whether the trial court (1) erred in granting a partial no-evidence summary judgment against the plaintiffs/appellants // and in favor of the defendants/appellees, Aspect Resources, LLC ( Aspect ) and Veritas DGC Land, Inc. ( Veritas ), under the appellants legal theories of res ipsa loquitur, strict liability, negligent misrepresentation, geophysical trespass, and trespass; (2) erred in directing a verdict that the appellants take nothing against the defendant/appellee, Ameridian Technologies, Inc. ( Ameridian ); (3) erred in directing a verdict that the appellants take nothing against Aspect and Veritas, under the appellants legal theories of nuisance, fraud, trespass, gross negligence, and for the recovery of mental anguish and/or punitive damages; (4) erred in excluding certain witnesses and in restricting certain testimony at trial; and (5) abused its discretion when it denied the appellants motion for new trial because plaintiffs exhibit 64 was not tendered to the jury. We affirm.

Background

Aspect acquired certain drilling rights in the Gillock Field in Galveston County sometime before February 1998 and wished to conduct geophysical or seismic operations, mapping the geology of the area. The seismic operations in question involved exploding in specific shot holes, approximately 80 feet in the ground, using 2.5 to 5.5 pounds of explosives, and the use of vibroseis trucks.

Veritas was the contractor Aspect hired to conduct the actual seismic operations. Aspect also hired Ameridian to provide seismic monitoring services for the vibroseis operations. Although Ameridian s letterhead characterized the company as a consulting engineering firm, in fact, Ameridian did not employ engineers.

On February 24, 1998, Aspect sent a letter to the fire marshal of the city of Dickinson to apply for a permit to conduct such geophysical or seismic operations. The letter also nominated a company to serve as the third-party engineer for the operations. However, the nominated company was not ultimately hired by Aspect. // The mayor of the city of Dickinson signed the letter agreed and accepted on February 24, 1998. Aspect appears to have sent similar letters to other cities within Galveston County. The record does not contain copies of these letters with the acceptance of the other cities noted thereon.

Apparently, Aspect also sent a letter to Galveston County because, on May 11, 1998, the Commissioners Court for Galveston County issued permit number CR 2220, authorizing Aspect to conduct limited geophysical operations. The permit required Aspect to employ a third-party engineer specializing in seismology, but did not name the third-party engineer. The engineer was obligated to remain on the job during the performance of all operations, and the engineer s duties included making recommendations designed to eliminate any potential damage to property belonging to any third party. The permit also required Aspect to contact each resident or business within 250 feet of its operations before the operations began and to place ads in local newspapers explaining the work to be done.

The seismic testing for the Gillock project began on July 13, 1998 and continued until either July 21, 1998 or August 3, 1998. For purposes of this appeal, the precise end date is not important.

Appellants, Paula Welch and Clyde Ashworth, lived in and owned a home outside any city limits, but within the territory of Galveston County. Their home was located between 2,500 and 2,750 feet from the area where the seismic operations were being conducted. Appellants Mary and Jim Alber lived in a home next to the Welch/Ashworth home in Galveston County. Appellants Bret and Pamela Bieri lived in and owned a home in the city of Dickinson. All the appellants complained that the blasting, on or about July 18, 1998, caused their house foundations to crack.

On July 19, 1998, in response to the complaints of Welch, Mickey Bradley of Bradley Safety Systems in Oklahoma, a subcontractor of Ameridian, was sent to her house. He came out for about an hour on July 19, and returned on July 20 for the purpose of setting up seismographs on the property. At some point, Bradley also went to look at the Alber house.

On July 31, 1998, Bradley submitted a report to Aspect. That report stated that although the shots were audible on July 20, 1998, the seismographs set up on the Welch/Ashworth property were not triggered. The report also stated that the Welch/Ashworth and Alber homes had no interior wall cracks, and that the foundation cracks claimed by the homeowners to have been caused by the blasting, in fact, were filled with dirt, grass, or grease and appeared to be old cracks. It appears that based on the Bradley report, Aspect paid no damages to any of the homeowners.

In the summer of 1999, appellants brought separate suits against their homeowners insurance carrier. The insurance carrier filed a third party petition against Aspect, Veritas, and Ameridian, claiming that their seismic activities had damaged the appellants properties. Appellants subsequently amended their petitions to assert claims directly against Aspect, Veritas, and Ameridian. Welch and Ashworth (in their third amended petition) asserted causes of action against Aspect, Veritas, and Ameridian based on nuisance, negligence/gross negligence, tortious conduct, // and strict liability and sought actual and exemplary damages, as well as damages for mental anguish and attorney s fees. They also specifically pleaded the doctrine of res ipsa loquitur. The second amended petitions of the Albers and the Bieris contained pleadings essentially the same as those of Welch and Ashworth. The appellants and their insurance carrier settled their disputes in 2000.

The Summary Judgment

In their first point of error, appellants argue that the trial court erred in granting a no-evidence summary judgment for Aspect and Veritas on strict liability, geophysical trespass, res ipsa loquitur, negligent misrepresentation, and trespass.

Aspect and Veritas filed their first joint no-evidence motion for summary judgment on November 3, 2000. They sought summary judgment with respect to the following claims set forth in the appellants first amended petition and intervenors petition: negligence, the intentional torts, strict liability, and exemplary damages. Aspect and Veritas filed their second joint no-evidence motion for summary judgment on January 19, 2001 to address the appellants cause of action for nuisance that was asserted in the third amended petition of Welch and Ashworth and the second amended petitions of the Albers and the Bieris, all filed on January 12, 2001.

On February 12, 2001, before the jury panel came in for voir dire, the trial court considered and ruled on Aspect and Veritas s motions for summary judgment. On the record, the trial court granted the no-evidence motion for summary judgment on the appellants claims under the doctrine of res ipsa loquitur, strict liability, negligent misrepresentation, geophysical trespass, and trespass. Also on the record, the trial court denied the no-evidence motion for summary judgment on the appellants claims of nuisance, negligence, and fraud. We follow the usual standards in reviewing the trial court s granting of summary judgment. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App. Houston [1st Dist.] 1999, no pet.); Tex. R. Civ. P. 166a(i).

1. Geophysical Trespass and Trespass

The appellants complain that Aspect and Veritas did not include the claim of geophysical trespass or trespass // in either of their motions for summary judgment. According to the appellants, it was, therefore, error to grant the summary judgment on these causes of action and the causes of action should have gone to the jury.

This Court has read the operative pleadings of the appellants at the time of the summary judgment, which were also the ones in effect when the judgment was signed. // As Aspect and Veritas point out, these pleadings do not contain a cause of action for geophysical trespass or trespass. The trial court, in the summary judgment ruling, commented, I m not real convinced that [geophysical trespass] is raised by the pleadings. . . . The trespass allegations are granted, geophysical or otherwise.

The appellants state in their brief that the issues of geophysical trespass or trespass were raised in Welch s answer and counter-claim, filed in September 1999. The appellants do not argue that the issues of geophysical trespass or trespass were contained in their final trial pleadings in effect when the summary judgment was granted, and, clearly, these earlier-pleaded issues were abandoned in the final trial pleadings. See, e.g., Wheeler v. Methodist Hosp., 95 S.W.3d 628, 634 n.2 (Tex. App. Houston [1st Dist.] 2002, no pet.) (by omitting from his second amended petition certain claims, plaintiff abandoned them; therefore, appeals court did not consider whether summary judgment on omitted claims was proper); Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App. San Antonio 2000, pet. denied) (plaintiff waived any complaint of trial court s grant of summary judgment on two causes of action abandoned when plaintiff amended her pleadings). Nor does the record indicate that the issues of geophysical trespass or trespass were tried by consent. Therefore, for the reasons set forth in Wheeler and Akin, we do not consider whether summary judgment was appropriate on the issues of geophysical trespass or trespass.

2. Negligent Misrepresentation

The elements of a cause of action for negligent misrepresentation are (1) a defendant makes a representation in the course of business or a transaction in which the defendant has a pecuniary interest; (2) the defendant supplies false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation. Federal Land Bank Ass n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991). In their brief, the appellants assert that Aspect and Veritas made several misrepresentations regarding the seismic exploration that is the subject of this appeal. The appellants complain that Aspect and Veritas misrepresented to the City // that nearby property owners would be notified of seismic activities and protected from harm and that an engineering firm would be retained to monitor seismic activities.

However, the appellants make no claim that such misrepresentations were made to them by Aspect or Veritas. In granting summary judgment for Aspect and Veritas on the cause of action for negligent misrepresentation, the trial court stated: I am convinced under the case law negligent misrepresentation, there s got to be misrepresentation made directly to the property owners. Under the circumstances of this case, in which the evidence in the record shows that representatives of Aspect and Veritas did not communicate the purported misrepresentations to the appellants and that the appellants learned of the purported misrepresentations of Aspect and Veritas after they sustained the alleged damages, we agree with the trial court. See, e.g., McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 794 (Tex. 1999) (negligent misrepresentation cause of action available only when information is transferred by attorney to known party for known purpose); Trans-Gulf Corp. v. Performance Aircraft Servs., Inc., 82 S.W.3d 691, 696 (Tex. App. Eastland 2002, no pet.) (section 552(2) of Restatement of Torts requires actual knowledge of recipient s identity and specific intent on part of alleged tortfeasor that claimant would rely on misrepresentation); Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 443 (Tex. App. Texarkana 1998, no pet.) (plaintiff never established that defendant ever made misrepresentation directly to plaintiff).

Recognizing the absence of evidence that Aspect and Veritas made misrepresentations to them, the appellants assert that they are third-party beneficiaries of a contract who were harmed by the misrepresentations of Aspect and Veritas concerning notice, safety, and monitoring to the City. It is well-settled law that a party may sue to enforce a contract as a third-party beneficiary if the contracting parties clearly intended that the contract benefit the third party. However, the appellants neither explain nor demonstrate what the contract is that they rely upon or what the intent of the contracting parties was. In three of the cases on which the appellants rely, the courts held that there was no clear intention that the contracting parties intended the third party to benefit. // Two other cases cited by the appellants do not discuss third-party beneficiaries. //

While acknowledging that a permit may not be a contract, the appellants maintain that the doctrine of promissory estoppel applies when a promise is not enforceable in contract. In support, they cite a case in which a court of appeals concluded that the city of Houston issued three permits vesting the plaintiff with the right to drill and that the right was not revocable, except under the terms of the ordinance or if city officials determined that the plaintiff s drilling was affecting the public health and safety. See Maguire Oil Co. v. City of Houston, 69 S.W.3d 350, 370 (Tex. App. Texarkana 2002, pet. denied). Therefore, the court found a promise to allow the plaintiff to drill under the terms of the governing ordinance as long as there was no effect on the public health and safety. See id. We fail to see how the holdings in Maguire support the appellants attempt to use promissory estoppel to remedy the absence of evidence on the elements of the cause of action for negligent misrepresentation. The trial court did not err in granting the summary judgment motion on the negligent misrepresentation cause of action.

3. Res Ipsa Loquitur

Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Honea v. Coca Cola Bottling Co., 183 S.W.2d 968, 969 (Tex. 1944). In Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 255 (Tex. 1974), the supreme court stated that in a res ipsa case, where several negligent acts may be inferable from the circumstances of the accident, a single broad issue inquiring generally about negligence would be proper. See also Burk Royalty Co. v. Walls, 616 S.W.2d 911, 924 (Tex. 1981) (supreme court restated what it said in Bell concerning res ipsa loquitur).

Because res ipsa loquitur is a rule of evidence, and not a cause of action, it was error to grant summary judgment thereon. However, we do not find such error to have been harmful. The effect of successfully invoking the res ipsa doctrine is that the plaintiff can survive no-evidence procedural challenges. See Bell, 517 S.W.2d at 251 (no presumption of defendant s negligence arises; jury is merely free to infer negligence; plaintiff continues to have burden of persuading jury by preponderance of evidence that defendant was negligent). In the court below, the appellants survived a no-evidence summary judgment motion on their negligence cause of action. The issue of negligence, as a broad form question, was submitted to the jury for all the appellants against Aspect and Veritas. The appellants did not object in the trial court to the wording of the charge concerning negligence.

4. Strict Liability

The appellants brief contains no argument about why the trial court erred in granting a summary judgment in favor of Aspect and Veritas on the cause of action of strict liability. Accordingly, this issue is not preserved on appeal. Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92, 106 (Tex. App. Houston [1st Dist.] 1994, writ denied).

Therefore, the appellants first point of error is overruled.

Exclusion of Nonplaintiff Homeowner Witnesses

In their second point of error, the appellants contend that the trial court erred in excluding their nonplaintiff homeowner witnesses. The appellants do not identify these witnesses or specify their number in their brief, but it appears they are complaining about six nonplaintiff homeowner witnesses. Two other nonplaintiff homeowner witnesses were deposed and testified at trial. The Court has carefully reviewed the January 8, 2001 motion of Aspect and Veritas to exclude testimony of nonplaintiff homeowners, the appellants motion to quash the depositions of nonplaintiff homeowner witnesses, Aspect s response to the motion to quash, the record of the January 26, 2001 hearing on the motions to exclude and to quash, the February 12, 2001 motion of Aspect and Veritas to strike plaintiffs witnesses testimony, and the trial court s February 12, 2001 ruling on the record.

There is no signed order in the record relative to the motion to exclude testimony, but the trial court ruled on the record as follows:

The Court is not going to allow people that don t have a nexus to this incident to testify because in this Court s mind the prejudicial effect will outweigh the probative value. If you ve got damages from neighboring homeowners who were within the blast area that affected the homes involved in this lawsuit, I m probably going to let them testify. If they re outside that area, I m not going to let them testify and I will sustain an objection to their testimony. But I m not going to pre-rule on what witnesses will say or may say or not say or whatever.

(Emphasis added.) Toward the end of the hearing, the trial court instructed the appellants counsel that it would allow the designation of 10 nonparty homeowner witnesses.

On February 12, 2001, the day trial proceedings began, Aspect and Veritas filed a motion to strike plaintiffs witnesses testimony. According to that motion, nonplaintiff homeowners Glenn Schaeffer, Tommy Tidwell, Estella & Joe Villareal, Jim Wines, and Sandra Wilbanks had failed to appear for their noticed deposition on February 3, 2001, and Aspect and Veritas sought to have their testimony excluded at trial. Only two nonplaintiff homeowners had been deposed on February 3: Jennifer Acklen and Eddie Burns. // The record does not contain any response by the appellants to the motion to strike, nor does the record contain a written order on that motion.

Before the jury panel came in, the trial court ruled as follows concerning the motion to strike:

As far as motions to exclude witnesses, I made my ruling in previous -- made my previous ruling. And I will tell you that, that as witnesses are called and objections are made to exclude them, I m going, I m going to consider them. But we know we have two, we know we have two nonparty property owners who were deposed. We know we ve got those two video depositions. They ve been video taped, I presume, or at least that s what the pleadings indicate. And certainly those are conformative with my Order. And they re certainly going to be allowed to be presented.

(Emphasis added.)

This is the only exclusion ruling relative to nonplaintiff homeowner witnesses referenced by the appellants in their brief. It is clear from what the trial court said that no witnesses were excluded before trial. The trial court stated it would rule on the exclusion of witnesses as they were called, but it does not appear from the record that the appellants called any nonplaintiff homeowner witnesses, other than Jennifer Acklen and Eddie Burns, who testified through videotaped depositions.

Rule 103 of the Texas Rules of Evidence provides that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and (1) a specific objection is made on the record and (2) the substance of the evidence was made known to the court. With respect to the subject matter of this point of error, this Court concludes that the trial court s ruling complained of did not exclude evidence or, if it did, the appellants failed to object to the ruling when it was made. Furthermore, the appellants did not make the substance of the testimony of the nonplaintiff homeowner witnesses known to the trial court. While the appellants make the conclusory statement that they were ultimately harmed by the trial court s ruling and that the effect of excluding the testimony more likely than not caused the rendition of an improper judgment, the Court is unable to evaluate this statement in the absence of a bill of exception. See Tex. R. App. P.33.2; Wade v. Comm n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App. Houston [1st Dist.] 1997, no pet.) (appellant made no offer of proof to identify excluded testimony of which he now complains). Therefore, the appellants second point of error is overruled.

Robinson/Daubert Hearing

In their third point of error, the appellants argue that the trial court erred in restricting Dr. Ebow Coleman s testimony on the issue of causation without conducting a Robinson/Daubert // hearing.

We have reviewed the record, which consists of the Robinson/Daubert motion and supplement thereto filed by Aspect and Veritas (supported by an affidavit and containing record references to the deposition of Dr. Coleman) and the reporter s record of the discussion of the trial court and attorneys for the parties concerning whether Dr. Coleman s testimony should be limited. For several reasons, we conclude the trial court did not abuse its discretion by ruling to limit the testimony of Dr. Coleman without holding what the appellants characterize as a Robinson/Daubert-style hearing.

First, in fact, there was a hearing on February 15, 2001, on the Robinson/Daubert challenge to Dr. Coleman s testimony. No evidence was presented, but arguments of counsel were heard. Second, at the hearing, the record does not show that the appellants, who had the burden of establishing the qualifications of Dr. Coleman, attempted to present evidence or to call Dr. Coleman as a witness, even though he was present in the courtroom. Third, even assuming that the February 15 hearing was not a proper Robinson/Daubert hearing, and we do not, we have previously held that a Robinson/Daubert hearing may not be necessary. A trial court may base a Robinson/Daubert ruling on the experts deposition and affidavit testimony, rather than calling the experts to testify at the hearing. See Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex. App. Houston [1st Dist.] 2002) (order). That is what appears to have happened here.

Even if there was error as the appellants assert, and we do not agree that there was, despite the ruling of the trial court, Dr. Coleman was allowed to testify, in essence, that the seismic operations caused damage to the homeowners foundations. // Any error was harmless. Therefore, the appellants third point of error is overruled.

Directed Verdicts for Aspect, Veritas, and Ameridian

In their fourth point of error, the appellants contend the trial court erred in granting Ameridian s motion for a directed verdict, dismissing their suit against Ameridian. In their fifth point of error, the appellants maintain the trial court erred in granting Aspect s and Veritas s motion for directed verdict on the issues of fraud, gross negligence, punitive damages, nuisance, and mental anguish. The appellants brief these two points together; therefore, we address them together.

We review the rendition of a directed verdict in the light most favorable to the party against whom the verdict was rendered, and we disregard all contrary evidence and inferences. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex. 1988); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 476 (Tex. App. Houston [1st Dist.] 2000, pet. denied). The movant is entitled to a directed verdict when (1) a defect in the opponent s pleading makes it insufficient to support a judgment; (2) the evidence conclusively establishes the truth of the factual propositions that, under the substantive law, establish the right of movant to judgment; or (3) the evidence is legally insufficient to raise an issue of fact on a fact proposition that must be established for movant s opponent to be entitled to judgment. Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex. App. Houston [1st Dist.] 1995, writ denied). The appellants must refer the appellate court to those portions of the record where the evidence is to be found demonstrating that the directed verdict was error. See Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex. App. Houston [1st Dist.] 1996, no writ); Tex. R. App. P. 38.1(h).

1. Directed Verdict for Ameridian

After the appellants rested their case, Ameridian moved for a directed verdict on the record, stating that the appellants had failed to establish evidence on all the requisite elements of their claims for negligence, gross negligence, nuisance, and fraud against Ameridian. The trial court granted the motion.

In their brief, the appellants set forth the elements of common-law fraud, negligence, and gross negligence. However, relative to fraud, the appellants fail to refer to those places in the record showing evidence that is legally sufficient to raise an issue of fact on each element of fraud as it relates to Ameridian.

With respect to negligence, the appellants state in their brief that they produced a significant amount of information demonstrating negligence on the part of the Appellees. They contend: Clearly, the Appellees failed to adequately monitor testing and ensure that residents were not harmed by Appellees activities. However, the appellants fail to refer to those places in the record showing evidence that is legally sufficient to raise an issue of fact on each element of negligence as it relates to Ameridian. Concerning gross negligence, the appellants fail to refer to those places in the record showing evidence that is legally sufficient to raise an issue of fact on each element of gross negligence as it relates to Ameridian.

Finally, there is neither argument nor record references concerning Ameridian s motion for directed verdict on the issue of nuisance in the appellants brief. Because of the appellants failure to provide this Court with specific record references to evidence in the record demonstrating that fact issues existed on each element of each cause of action asserted against Ameridian, the fourth point of error is overruled. See Tex. R. App. P. 38.1(h); Wade, 961 S.W.2d at 373.

2. Directed Verdict for Aspect and Veritas

Like Ameridian, after the appellants rested their case, Veritas moved for a directed verdict on the record, arguing that the appellants had failed to provide evidence of the causes of action for fraud, nuisance, mental anguish, negligence, and gross negligence or of punitive damages. Aspect also moved for a directed verdict, adopting the arguments of Veritas. The trial court granted the motions with respect to fraud, mental anguish, nuisance, and gross negligence. The trial court denied the motions with respect to negligence, and the issue of negligence of Aspect and Veritas was submitted to the jury.

As noted above, in their brief addressing in the same section points of error four and five, the appellants list the elements of common-law fraud. However, the appellants fail to refer to those places in the record showing evidence that is legally sufficient to raise an issue of fact on each element of fraud as it relates to Veritas.

With respect to evidence of fraud by Aspect, the appellants refer to plaintiffs exhibits 2, 3, 4, and 5 as containing fraudulent averments by Aspect to the city of Texas City // and to the many false assertions listed previously (which will not be reiterated, for purposes of brevity). Exhibits 4 and 5 are neutral on their face, and without other testimony stating that the factual statements therein are fraudulent or misrepresentations, they themselves provide no evidence of fraud. Even if exhibits 2 and 3 offer some evidence on certain elements constituting fraud, they do not offer evidence on all elements of fraud relating to Aspect.

Concerning gross negligence, the appellants fail to refer in their brief to those places in the record showing evidence that is legally sufficient to raise an issue of fact on each element of gross negligence as it relates to Aspect or to Veritas.

Relative to nuisance, in their brief, the appellants state only that [B]y and through the testimony of the Appellants Paula Welch, Clyde Ashworth, Pamela and Bret Bieri, James and Mary Alber and other independent witnesses, it was established that Appellees seismic explorations resulted in excessive noise, strong vibrations, and substantial damage to Appellants property. The appellants do not provide this Court with specific record references where the evidence supporting a nuisance cause of action appears against Aspect and Veritas.

Although the appellants assert in their brief that the evidence in the record is overwhelming on mental anguish, they neither list the elements of mental anguish, provide record references to the evidence, or give any argument about their claims of mental anguish. The appellants, having failed to provide this Court with specific record references to evidence in the record demonstrating that fact issues existed on each element of common-law fraud, gross negligence, nuisance, and mental anguish the causes of action asserted against Aspect and Veritas that were the subject of the directed verdict motion the fifth point of error is overruled. See Tex. R. App. P. 38.1(h); Wade, 961 S.W.2d at 373.

Plaintiffs Exhibit 64

In their sixth point of error, the appellants assert that the trial court erred in denying their motion to vacate the modified judgment, motion to set aside jury verdict, and motion for new trial because plaintiffs exhibit 64 may not have been presented to the jury at the time of its deliberations.

We have reviewed the reporter s record of the June 6, 2001 hearing on the motion for new trial, and the reporter s record of the trial, including the indexes. The record shows as follows:

(1)The lists of exhibits offered and admitted, contained in the 13-volume reporter s record of the trial, make no mention of plaintiffs exhibit 64. The master index contained in the first volume of the trial exhibits states P-64 Air-Jac Driller s Logs (Not admitted). In summary, according to the record, plaintiffs exhibit 64 was not admitted into evidence.

(2)In October 2002, after the appellants filed their main brief in this Court, but before the appellees filed their briefs or the appellants filed their reply brief, the court reporter filed a plaintiffs exhibit 64. The exhibit does not contain a reporter s certificate. No one complains that the exhibit is not the plaintiffs exhibit 64 in question.

(3)During the June 6 hearing, counsel for the appellants agreed with the trial court that at the conclusion of the evidence at trial, representatives from each side approached the court reporter, compiled with her all of the evidence that had been introduced, and indicated to the trial court that they were satisfied that all of the evidence had been compiled and was to be delivered to the jury.

(4) Three witnesses were called at the June 6 hearing. One of them, a juror in the case, testified that she had not seen plaintiffs exhibit 64 among the exhibits in the jury room during its deliberations.

(5)A second witness, a legal assistant to the appellants counsel, testified that plaintiffs exhibit 64 was among the exhibits compiled for delivery to the jury room, and that, to the best of her recollection, plaintiffs exhibit 64 was sent from the courtroom back to the jury room.

(6) The third witness, an attorney for Aspect, testified that she recalled a black notebook containing driller s logs being compiled with other exhibits and being taken to the jury room. Her description of the exhibit matched that of plaintiffs exhibit 64.

A trial court s denial of a motion for new trial may be overturned only upon a showing of a clear abuse of discretion. See Champion Int l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding); Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 196 (Tex. App. Houston [1st Dist.] 1998, no pet.). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding); Rabie, 982 S.W.2d at 196. Because there is no evidence in the record that plaintiffs exhibit 64 was offered or admitted into evidence, because the appellants counsel agreed at the June 6 hearing that all the evidence had been compiled to be taken to the jury room, and because the testimony of two of the witnesses at the June 6 hearing would have allowed the trial court to conclude that, whether admitted or not, plaintiffs exhibit 64 had, in fact, been taken to the jury room, this Court concludes that the trial court did not abuse its discretion when it refused to grant a new trial to the appellants. Therefore, the appellants point of error six is overruled.

The judgment is affirmed.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.