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

• Court: Court of Appeals of Texas
• Decided: January 12, 2015
• Docket: 13-14-00329-CV
• Status: Published

Opinion

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

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.

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

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

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-

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works,

http:llweb2.westlaw.com/print/printstream.aspx?utid:1&prft:HTMLE&vr:2.0&destinatio... llI2l20l5 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

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks.

http:llweb2.westlaw.com/print/printstream.aspx?utid:1&prft:HTMLE&vr:2.O&destinatio... lll2l20l5 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

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

http.llweb2.westlaw.comlprint/printstream.aspx?utid:1&prft:HTMLE&vr:2.0&destinatio... Ill2l20l5 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.