Beau McBeth and Erica McBeth v. Servpro Industries, Inc. and S&R Operations, Inc. D/B/A Servpro of the Woodlands/Conroe

• Court: Court of Appeals of Texas
• Decided: December 19, 2024
• Docket: 09-22-00272-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00272-CV ________________

BEAU MCBETH AND ERICA MCBETH, Appellants

V.

SERVPRO INDUSTRIES, INC. AND S&R OPERATIONS, INC. D/B/A SERVPRO OF THE WOODLANDS/CONROE, 1 Appellees ________________________________________________________________________

On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 20-02-02639-CV ________________________________________________________________________

MEMORANDUM OPINION

Beau and Erica McBeth (collectively “the McBeths;” singularly “Beau” and

“Erica”) sued SERVPRO Industries, Inc. (“Servpro”) and its franchisee, S&R

Operations, Inc. d/b/a SERVPRO of the Woodlands/Conroe (“S&R”), claiming that

S&R’s alleged failure to properly identify and remediate mold in their house caused

1Although many documents in the record spell Defendants as “Servepro,” we

have corrected the spelling to “Servpro.” 1 them and their children to sustain personal injuries and property damage. 2, 3, 4 The

McBeths claim Texas Deceptive Trade Practices Act (“DTPA”) violations, in

addition to alleging breach of contract, fraud, negligence, and gross negligence

against these Defendants. See Tex. Bus. & Com. Code Ann. § 17.46.

The jury answered some liability and damage questions in the McBeths’ favor

and the trial court accepted the verdict. More specifically, the jury answered liability

questions in the McBeths’ favor as to negligence and the DTPA, only. However, the

jury found in Servpro’s and S&R’s favor as to fraud and gross negligence. Although

the jury found that Servpro and S&R knowingly violated the DTPA, they did not do

so intentionally.

Servpro and S&R filed a Motion for Judgment Notwithstanding the Verdict,

arguing that the economic loss rule applied to the case and that the McBeths

presented legally insufficient evidence to support their favorable verdict and

specifically mentioned the lack of evidence of causation. The trial court granted the

Motion but did not specify the basis of its ruling.

2In their Second Amended Petition, Plaintiffs also sued the Aggie Inspector

Group, LLC (the mold assessor they initially retained to evaluate the condition of their house) and EMSL Analytical, Inc., (the laboratory that analyzed the samples from that initial assessment) but nonsuited these defendants before trial. 3Plaintiffs abandoned their personal injury claims and proceeded to trial on

their property damage claims. 4For ease of reference, we use Beau and Erica McBeth’s first names.

2 The McBeths now appeal the trial court’s judgment, arguing that the trial court

erred in granting a judgment non obstante veredicto (“JNOV”) after the jury returned

a verdict in their favor. Specifically, they contend that (1) the record contained

“competent uncontroverted evidence” to sustain the jury’s verdict and (2) that the

economic loss rule did not apply to their DTPA claim. Appellees Servpro and S&R

raised cross-points, but our disposition of the McBeths’ arguments renders it

unnecessary to address those cross-points. See Tex. R. App. P. 47.1.

Finding no reversible error, we affirm the trial court’s judgment for Appellees.

I. Background Information and Trial Evidence

Servpro is an international franchisor that contracts with individual franchisee

companies like S&R that are in the business of cleaning or remediating flood

damage, fire damage, mold damage, and the like. S&R, like many of these

individually owned franchises, also offers general cleaning services.

In late June 2017, the McBeths purchased a house in The Woodlands. They

planned to update the flooring, among other things, before moving into the house.

For that reason, their flooring contractor, Daniel Lanni, was removing the old carpet

and carpet padding shortly after the McBeths closed on the property. When Lanni

removed the padding, he discovered a “mud-like substance” on the subfloor, and

notified Beau McBeth that he could not continue to work until the McBeths 3 addressed this problem. Neither the McBeths nor S&R scientifically tested this

substance; consequently, it was never identified with certainty. We therefore refer to

it as a “mud-like substance,” or an “unknown substance,” which is the terminology

used throughout much of the record. Due to this mud-like substance, Beau contacted

Servpro, and his information was transmitted to Servpro’s local franchisee, S&R.

Beau described the problem, and the following day, June 29, 2017, S&R personnel

cleaned the “mud-like substance” from the subfloor. Pursuant to S&R’s standard

procedure, its crew also sprayed the cleaned areas with Sporicidin, a disinfecting,

antimicrobial, and antifungal agent.

Although there is some disagreement about what services Beau sought when

he spoke with S&R on June 28, 2017, he testified that he had not seen mold before,

and he told them based on the pictures, “it was some substance that looked like

mud[.]” The service contract did not indicate any services or charges for mold testing

or remediation. The parties agreed that S&R did not provide either mold assessment

or mold remediation. Sometime after moving into the house, and about sixteen

months after Servpro cleaned the mud-like substance off the subfloors, the McBeths

and their children began experiencing various health problems. In October 2018, the

McBeths questioned whether their health problems might be due to mold exposure;

they consequently retained a mold assessment company to evaluate the mold levels

in their home. That assessment company found low levels of mold but did not 4 indicate that the mold was hazardous to the McBeths’ health. In June 2019, two years

after S&R cleaned the McBeths’ subfloors, a different mold assessment company,

Texas Mold Inspectors (“TMI”), found high mold levels in the house and advised

the McBeths to move out immediately, which they did. Since TMI indicated that the

McBeths’ furniture, clothing, and other belongings would be contaminated with

mold, they left those items behind in the house they vacated. The estimated cost of

mold remediation exceeded the value of the house.

The McBeths therefore sold the property at a loss and eventually bought a

different house. 5 They allege Servpro and S&R are responsible for their loss because

S&R did not look for, identify, or warn them of any mold problem in the house in

June 2017.

We summarize below the testimony relevant to this appeal.

A. Joshua Rachal’s Testimony

Joshua Rachal (“Rachal”), described his construction and sales experience

before becoming a licensed mold assessor, recalling that he was a construction

laborer for two years, and “had a remodeling company” that gained him five years’

experience. He testified that his construction experience made him a more effective

5The McBeths sold the house to a buyer who performed his own mold remediation for a lower cost than was estimated for the McBeths, and who later resold the house at a profit. 5 mold assessor because understanding how a house is constructed and “how a home

is working as a system[,]” enables him to understand whether there are construction

defects that could allow mold to form. At another time, Rachal worked as an outside

sales representative, selling “high-end custom replacement windows, sun rooms,

home exteriors, roofing systems, and replacement front doors.” According to Rachal,

sales, like construction, improved his ability to be a mold assessor because the

training he received in that position enabled him to understand how to properly

install the products he sold. Consequently, Rachal testified, he knew how to identify

incorrect installation issues that might permit water to enter a house.

Rachal became a licensed mold assessor in 2016. His family’s experience with

mold motivated him to make this career shift. In 2016 or 2017, Rachal and his wife

formed TMI. Since forming the company, he has performed thousands of mold

assessments.

TMI first assessed the McBeths’ home in June 2019. Rachal described the

testing methods used at the McBeths’ house, explaining that TMI sampled both room

air and wall cavities in multiple areas, including the garage, bedrooms, kitchen,

staircase, and other locations. TMI also sampled exterior air for comparison

purposes. According to Rachal’s interpretation of Plaintiff’s Exhibit 38, a laboratory

report showing the test results of samples taken from the McBeths’ house, TMI

found toxic mold in the house, but none outside it. Specifically, the laboratory report 6 of the samples taken from the McBeths’ house revealed Chaetomium, a “slime

mold,” in a garage ceiling wall cavity, as well as “Penicillium/Aspergillis-like”

mold. In a bedroom wall cavity, the report identified Stachybotrys, Alternaria, and

additional Penicillium/Aspergillis-like spores. Rachal characterized all these molds

as toxigenic and potentially carcinogenic. According to Rachal’s 2021 Mold

Assessment Report, “[t]he sub-flooring and staircase, within this home, has [sic]

been experiencing systemic water intrusion for many years preceding the date of,

TMI’s, assessment.” Although Rachal did not define “many years,” he

acknowledged that not all mold is toxic. Rachal explained “slime mold” as those

molds that grow only in “100 percent wet, saturated” building materials. He testified

that mold requires three ingredients to grow: food, oxygen, and water. Rachal

therefore noted that the mold remediation process must not only eliminate the mold

but must identify and rectify the water intrusion sources to prevent mold regrowth.

Although Rachal is a mold assessor rather than a mold remediation contractor,

he described how these specialists work together to serve their clients. The mold

assessor, such as Rachal, first identifies the mold and its source, and writes a

remediation protocol. The mold remediation contractor then eliminates the mold by

following the protocol. The protocol Rachal drafted for the McBeths called for

removing drywall, insulation, fixtures, air ducts, and other building materials and

components from the affected areas of the house. The protocol further required 7 discarding most porous items, such as clothing and upholstered furniture and either

discarding or remediating non-porous items. Rachal recommended, however, that

even non-porous items be discarded because the remediation cost exceeded those

items’ value. To illustrate his point, Rachal noted that remediating a plate would cost

$75.00 due to the cost of performing a sample on it.

After the contractor completes the remediation process, he notifies the mold

assessor, who verifies through inspection and additional sampling that the

remediator has eliminated the mold.

When asked about the photographs taken in 2017, at the time of S&R’s

services, Rachal testified that had he been present at the time these pictures were

taken, he would have advised the McBeths to have the mud-like substance tested “in

order to know exactly what it is.” It did not look to Rachal like mud. When testifying

about the pictures taken in 2019 as part of TMI’s mold investigation, Rachal

identified several places purporting to show rust, water stains from condensation,

and resulting mold.

Rachal testified that Sporicidin, the product S&R used at the McBeths’ house,

is used to kill viruses, bacteria, and mold. According to Rachal, however, it is

counterproductive to use a chemical to kill mold because the mold reacts to the

chemical by “go[ing] crazy[]” and producing mycotoxins.

8 The Aggie Inspector Group (“Aggies”) assessed the McBeths’ house for mold

on October 16, 2018, eight months before TMI assessed the property. Rachal

reviewed the Aggies’ October 19, 2018 report and concluded that some of the results

should have shown that mold levels were “elevated” as opposed to “slightly

elevated.”

B. Daniel Lanni’s Testimony

Daniel Lanni (“Lanni”) testified that he was the McBeths’ flooring contractor

in 2017. Before removing the old carpet, he performed “quite extensive remodeling

work[,]” including installing new tile and redoing the kitchen. When his crew

removed the carpet, he “noticed the issues.” He therefore notified Beau McBeth that

there was “mold” that “needed a remediation” before Lanni could proceed with his

work. Lanni also took photographs of the substance on the subfloor. Lanni testified

that the substance he called “mold” was neither dirt nor carpet glue. He believed that

the “mold” may have originated from a toilet leak in an adjacent bathroom. The stain

from the apparent plumbing leak was dry when Lanni mentioned it to the McBeths.

When asked about his undated declaration, which references an “unknown

substance” and does not mention “mold,” Lanni explained this inconsistency by

stating that at the time he signed the declaration, he “didn’t know a hundred percent

that it was mold but it -- I’m not an expert in mold.”

9 After Lanni and Beau discussed the problem, Beau told Lanni that he had

retained “Servpro” to take care of the issue. Beau later told Lanni that “Servpro” had

remedied the issue and Lanni therefore could complete the carpet replacement. Beau

did not, however, provide Lanni a mold remediation certificate, and Lanni did not

request one. When Lanni returned to the McBeths’ house after S&R had completed

its work, the floor “looked a lot better[,]” but Lanni noticed some “dark spots[,]” that

“looked like there was mold there” and therefore did not “think it was completely

cleaned.” Recognizing, however, that he is not a mold expert, Lanni permitted his

crew to lay the carpet, despite his opinion that there remained a “clear sign of mold,”

that a “good technician would notice[,]” that there was a toilet on the opposite wall,

and the toilet might leak and contribute to water damage.

Lanni confirmed that his crew worked on the ground floor of the McBeth

house for months before he discovered the unknown substance under the upstairs

carpet. During that time, he did not see any water stains on the ground floor ceiling;

had he noticed any such stains, he would have told the McBeths immediately.

C. Beau McBeth’s Testimony

Beau McBeth testified that he and his wife, Erica, bought the house for

$420,000.00 in June 2017. He believed the house was sixteen years old when they

bought it. He estimated that he spent an additional $125,000.00 on interior

remodeling and about $40,000.00 on the home’s exterior. Although there was no 10 apparent reason to expect problems with the house, the McBeths planned to renovate

certain areas, including the floors and the kitchen, before moving in. Consequently,

the flooring contractor, Daniel Lanni, began work shortly after the closing.

Lanni began the renovation on the ground floor by removing flooring and

removing the kitchen island. When Lanni started working on the second floor, he

removed the carpet. Upon doing so, Lanni discovered “something on the floors” and

advised Beau that the work would be interrupted and he “needed to have someone

come out and take care of it.” Lanni sent Beau photographs of the substance on the

subfloors and advised Beau of a possible recent water leak in a bathroom, but Beau

did not recall Lanni saying anything about the nature of the substance in the pictures.

After hearing from Lanni, Beau searched online for companies able to perform

“restoration services[]” and chose S&R based on the content of Servpro’s marketing

materials as displayed “around Houston[]” and on its website. Beau agreed that it

was important to him to find a company that could do assessment and remediation.

He remembered noticing the explanations of Servpro’s processes but did not recall

specific details about those services. Later in his testimony, however, Beau stated

that Servpro’s website set forth a multi-step process. According to Beau’s

recollection, the website indicated that the initial step was “a site survey and

assessment to determine what needed to be done,” and the process would be

explained to him. Beau further recalled the website stating that the technicians “were 11 highly skilled and trained to perform the assessment[]” and would recommend “what

we needed to be able to continue to work and move in safely.” He denied having

told either Servpro or S&R that he needed only a cleaning. He did recall

Servpro/S&R’s website saying that mold can begin to grow within twenty-four to

forty-eight hours, so “action should be taken.” In addition, Beau read portions of the

website that “[i]t can take less than 72 hours for mold to spread throughout your

home, which may result in negative health effects to your family, as well as damage

to your property.” He did not recall reading the legal disclaimers on the website.

Beau said that SERVPRO offered “assessments” and that the December 2019

printout of Servpro’s website contained in his Exhibits 1-4 did not appear different

from the website he viewed in June 2017.

When Beau discussed his situation with Servpro or S&R in June 2017, he told

them that the substance “looked like mud[.]” He did not mention mold at that time,

nor did he recall discussing either “testing,” or his concern that it might be mold. He

did remember that when he met S&R at the house the next day, he realized the

damage was more extensive than he had anticipated, and he noticed “obvious water

stains.” Beau also remembered discussing the situation with Jeremy, an S&R

employee, but stated that Jeremy told him that because the stain was dry, “no further

action was necessary.” Beau and Jeremy also discussed the cleaning service and the

product, Sporicidin, that S&R would use on the floors. Beau testified that although 12 he considered the mud-like substance “questionable” and “hadn’t seen mud that

looked like that[,]” he did not recall discussing testing or mold when S&R came to

the house on June 29, 2017. At that time, Beau did not know that S&R had no mold

assessment license and only one licensed mold remediator on its staff; he testified

that had he known that, he would not have hired S&R/Servpro if he “knew it was

mold[.]”

Beau doubted that he would have hired Servpro if he believed that only a

general cleaning were necessary. He testified that he relied on Servpro’s

advertisement that they would send highly trained professionals to do what was

needed. He also relied on S&R’s representation that the Sporicidin would clear the

house of any issues and that the water damage was nothing to worry about.

Beau reviewed the before-and-after photographs attached to S&R’s job report,

Plaintiffs’ Exhibit 27, and confirmed that the floors appeared “definitely much

cleaner than what it was when I got there the first time.”

The McBeths eventually completed their renovations and moved into the

house. In late 2018, approximately sixteen months after Servpro cleaned the

subfloors, all five McBeth family members living in the house began experiencing

health problems. At first, Erica experienced “skin irritations” and “debilitating

migraine headaches[]” and Beau began struggling with breathing difficulties. The

children also exhibited health conditions, including skin sores, dental problems, and 13 behavioral changes. During the two years between June 2017, when S&R cleaned

the subfloors, and 2019, when TMI determined that the house contained unsafe mold

levels, the McBeths detected no mold smell or any other sign that there might be a

mold problem in the house.

When the McBeths suspected that they might have a mold problem, they

retained the Aggie Inspector Group, a licensed mold assessment consultant, to

perform a mold assessment. This assessment company found mold but indicated that

the molds detected in the McBeths’ house were within acceptable levels. Over the

ensuing months, the McBeths’ symptoms worsened. When medical testing revealed

their symptoms “were connected to environmental toxins and mold[,]” they sought

an updated mold assessment from TMI.

After TMI tested the McBeths’ house in June 2019, it reported that the house

contained dangerous levels of different molds and was “uninhabitable.” The

McBeths followed TMI’s recommendation to avoid the house and to dispose of

everything that had been in the house, including their clothes and other property.

Pursuant to TMI’s advice, the McBeths not only obtained a rental car and moved

into a hotel, they bought new clothes for all family members and new car seats for

the children. They also stayed with friends and neighbors for a time during this

period, but eventually found a suitable new house after being displaced for about six

months. Once they moved out of the house, their symptoms improved. They planned 14 to buy a different house but did not want to buy a new one “because of off-gassing

that happens from materials that are naturally part of the home-building process.”

After receiving TMI’s mold assessment, Beau connected S&R’s cleaning in

June 2017 and the subsequent mold discovery. He “immediately recalled what [he]

had seen, and the conversations with Servpro at the point of the assessment and the

concerns for the water and what looked to be mold[.]” He therefore contacted S&R

to obtain additional information and was told that in Texas, a company can be

licensed to either assess mold or remediate it, but not both. S&R also told Beau that

S&R’s license to remediate mold precluded it from testing for mold. Beau then

responded to S&R as follows:

I appreciate the explanation, which aligns with our understanding. We hired Servpro based on your expertise with water and mold being the cornerstone of your business, including defined assessment, remediation and restoration processes explained in your sales materials. With respect for our job, please email me outstanding documentation of Servpro’s Step 2 Inspection of Damage Assessment as defined in your Water Damage Restoration Process, along with the website address, prior to making the recommendations performed in our service. Thanks in advance for your response.

S&R then provided Beau its process documents as well as its job report showing the

photographs of the house both before and after S&R cleaned the subfloors. Beau

shared this information with TMI. Beau testified to his repeated attempts to work

with S&R, but it declined his requests for a meeting. He then contacted several

attorneys and he and Erica ultimately retained his trial counsel. 15 Beau testified that although Servpro/S&R’s website reflects that they perform

an inspection and damage assessment, he did not believe that they did so at his house

because he would have expected them to be able to see what was pictured in the

Servpro job report and recognize that something more needed to be done.

The McBeths investigated the cost of remediating the mold damage and

discovered that the projected cost exceeded the home’s value. In July 2021, they sold

the house to a contractor who performed his own remediation before selling it for a

profit.

Beau acknowledged having previously sued Aggie and EMSL, alleging that

they misrepresented the mold levels in the house, but they were nonsuited before

trial.

D. Erica McBeth’s Testimony

Erica McBeth is Beau McBeth’s wife and is a stay-at-home mother who

teaches the couple’s three home-schooled children. Erica described the symptoms

that led her to suspect mold exposure, specifically recalling that she experienced

“[r]eally debilitating migraine headaches[,]” intermittent arm numbness, skin

lesions, and gastrointestinal difficulties. She testified she did not have these

symptoms before occupying the house, and her symptoms improved after moving

out of the house.

16 Erica described the methodology for estimating the value of the property left

in the house: they tried to remember what was in each room and referred to

photographs and receipts to refresh their memories. When she had no receipts, she

searched the internet for similar items to obtain estimated values. Erica testified that

the total exceeded the $126,420.72 figure reflected in Plaintiffs’ Exhibit 62 through

64. These exhibits also reflect estimates, invoices, and work orders for the materials

and home renovations as well as photographs of the house and the family.

Although Erica did not deal with anyone from Servpro or S&R, she had

several conversations with Rachal and was involved with the decision to retain their

trial counsel; they chose him because they could not afford the other attorneys they

consulted.

E. Susan Meacham’s Testimony

Susan Meacham (“Meacham”) is the owner and president of S&R, d/b/a

SERVPRO The Woodlands/Conroe, a franchise she bought in 2009. She owns seven

additional franchises in Texas, and two in South Carolina. Meacham has owned

other Servpro franchises since buying her first one in 2002. Her husband, Randy

Meacham, handles many of the sales aspects of these businesses; he also holds a

mold remediation contractor’s license. S&R did not employ a mold assessor. She

was unable to recall whether S&R employed other licensed mold remediation

contractors in 2017 when S&R cleaned the McBeths’ house. Meacham described the 17 various levels of training that her employees might have and indicated that training

achievements would differ with their industry tenure or job categories. For example,

Jeremy Pierre, who worked on the McBeths’ house, was trained as a crew chief,

above a technician, and accordingly would have been trained at a crew chief level.

Meacham could not, however, testify to the particulars of his training. Also, Servpro

offers training that its franchisees can offer their employees. She explained that she

has three different departments: production, office, and sales. The production

department includes the technicians in the field and the managers overseeing them.

S&R offers different services, including general cleaning, damage restoration, fire

damage restoration, contents restoration, flood recovery services, and document

restoration. Meacham testified that most of S&R’s work consists of addressing water

and fire damage; when pressed for a guess, Meacham stated that S&R performed

“maybe” fifty mold remediations in 2017.

In response to questions about S&R’s relationship with Servpro, Meacham

stated that S&R is an independently owned franchise and that Servpro does not

dictate the details of either S&R’s business practices or its remediation methods.

Meacham further testified that much of S&R’s advertising is created by the

franchisor and although S&R can add some website content, like employees’

photographs, it has no control over most information included on the site. S&R does

not either assess mold or determine whether such assessment is necessary. When a 18 caller has mold concerns, an industrial hygienist assesses any mold and writes a mold

remediation protocol for the mold remediation company to follow. Meacham

disagreed that Servpro/S&R’s advertising could lead someone to believe that S&R

assessed mold. Meacham testified that S&R has performed mold remediation for

years.

Meacham explained how a call to the national call center is routed to S&R.

The call center takes general information about the caller’s name, the address of the

loss, the type of damage, the caller’s concerns, and any insurance coverage. The call

center locates the correct Servpro franchise based on the zip code of the property

and downloads the client’s information into a software database. S&R then takes

that information, contacts the client to confirm the details, prints a work order, and

dispatches the crew. She noted that they ask about insurance coverage because when

that applies to a loss, S&R uses certain software “with industry-standard pricing.”

In the McBeth’s case, the call center entered the initial information on the form such

as Beau McBeth’s name, address, and the type of damage. The call center also

entered the “type of loss” from a drop-down menu. This menu includes “mold” as

an option, but the call center entered “general cleaning.” As with the client’s contact

information, and loss type, the call center entered the “Loss Notes,” from

information Beau McBeth provided at the time he called. These Loss Notes read:

19 Purchased home this past Monday. The contractor doing renovation found subfloor beneath carpet and padding has mud when carpet was originally laid. He said it looks like the original contractors walked on the subfloor with muddy feet from the rains before the grass had grown. Customer has not seen home since contractor has been removing the carpet and padding, but said it looks like the previous owner also had a dog that left urine stains in the home. 3100-square-foot home. Entire second floor and bedroom and study downstairs need to be cleaned. He is also interested in having post construction cleanup once contractors are finished. Quoted $162.30 plus $2 per square foot. Customer would like this done ASAP. I told his scheduling would contact him today regarding a day and time. Home built in 2001.

The $162.30 was the charge for a service call, and the remaining charges were

for cleaning; the notes contain no reference to mold, water damage, or laboratory

testing. If a mold remediation were contemplated, S&R’s paperwork would reflect

the use of more items than S&R used at the McBeth house, such as an air scrubber,

a HEPA filter, a HEPA vacuum, and personal protective equipment. S&R personnel

likely added the handwritten notes showing the date, appointment time, and the

supplemental charge for the Sporicidin. Like other documentation contemporaneous

to Beau McBeth’s 2017 contact with either Servpro or S&R, this document not does

not mention mold, water damage, or an assessment.

Meacham testified that according to S&R’s records, on June 28, 2017, Beau

called Servpro’s corporate office in Tennessee, where personnel gathered

information about the McBeths’ situation and forwarded it to S&R. S&R then

contacted Beau about the job and provided him a cost estimate. At that time, Beau

20 did not indicate he had a possible mold problem, but instead, advised that mud “had

been tracked in from outside before grass was laid[.]” Meacham testified that if Beau

had voiced concerns about mold in the house, S&R would have referred him to an

industrial hygienist to test the mold and write a mold remediation protocol as

referenced above. She also compared the before-and-after photographs that S&R

personnel took at the McBeth house, noting that the “before” photographs do not

show the mud-like substance generating from or growing up the walls; the “after”

photographs show that the mud-like substance had been cleaned.

The post-cleaning notes in S&R’s records state that Beau showed the two

S&R technicians

the areas of the home he wanted cleaned, as we talked, I took photos. Homeowner states during the removal of carpet and pad, contractors tracked mud on the stairwell subfloor (plywood) and throughout the upstairs portion of the home. We cleaned the sub-flooring in a total of 8 rooms including the staircase. We used 2 mops, 1 broom, 1 scrapper [sic], 2 pump sprayers, and 4 gallons of sporicidin to clean up the mud. Homeowner had me text photos of the process to him, he was so stunned he had to make a trip to the house and see for himself. He is pleased with the work and is considering using our services for post construction cleaning. Homeowner handed me a check for services, it is photoed and placed inside of the work order. No equipment is left onsite, all forms are signed and saved into Drybook [a computer program]. Left home at 2:25 pm.

Similarly, this paperwork contains no mention of mold, water damage, an

assessment, or remediation, nor did any of the multiple documented contacts

between Beau and Servpro/S&R. 21 Meacham described S&R’s file retention procedure, stating that files are

stored by year. Since Beau did not contact S&R for two years after S&R cleaned his

subfloors, S&R had to physically retrieve his file from storage. In response to

Plaintiff’s counsel’s questions, Meacham read from e-mails and file material

pertaining to this matter, including a July 7, 2019 note about Beau’s inquiry about

“the final estimate and drying logs[]” for S&R’s work at the McBeth house.

F. Matt Powell’s Testimony

Powell, the McBeths’ realtor, testified that the McBeths sold the subject house

for $425,000.00, less than market value, because of the mold problem at the

property. He also testified to reasonable rental rates for the house in 2017 and at the

time of trial. According to Powell, from 2017 to 2019, the house would have rented

for $3500.00 per month and for $3800.00 to $4000.00 per month when the case was

tried in 2022. In addition, Powell testified that after remediation, the house sold for

$600,000.00.

G. Documentary Evidence

The documentary evidence includes printouts from both Servpro’s and S&R’s

websites. Some of these documents show the national toll-free telephone number

and reflect that Servpro offers services such as cleaning and restoration of fire and

water damage as well as mold remediation and restoration. Servpro’s and S&R’s

22 websites also advertise “[c]arpet & [u]pholstery cleaning,” in addition to “[d]rapes,

[b]linds, [w]indow [treatments],” and assistance with insurance claims.

These materials also state:

Any home or business can quickly become infested with mold with the introduction of a water source, like a roof or plumbing leak. Mold can spread throughout a property in as little as 48-72 hours, and can produce allergens and irritants that have the potential to cause other health effects.

Servpro further advertises that it offers “[h]ighly [t]rained [w]ater

[r]estoration [s]pecialists” and “[m]old [r]estoration [p]rocess.” It also states,

however,

Microscopic mold spores exist almost everywhere, outdoors and indoors, making it impossible to remove all mold from a home or business. Some restoration businesses advertise “mold removal” and even guarantee to remove all mold, which is a fallacy. Consider the following mold facts:

• Mold is present almost everywhere, indoors and outdoors. • Mold spores are microscopic and float along in the air, and may enter your home through windows, doors, or AC/heating systems or even hitch a ride indoors on your clothing or on a pet. • Mold spores thrive on moisture. Mold spores can quickly grow into colonies when exposed to water. • Before mold remediation can begin, any sources of water or moisture must be addressed. Otherwise, the mold may return. • Mold often produces a strong, musty odor and can lead you to possible mold problem areas. • Even higher-than-normal indoor humidity can support mold growth. Keep indoor humidity below 45 percent.

23 Elsewhere on its site, Servpro states, “[i]f you suspect that your home or

business has a mold problem, SERVPRO Franchise Professionals can inspect and

assess your property. If mold is found, they have the training, equipment, and

expertise to handle the situation.” In addition, the sites use the word “franchise” and

state “LOCATE A LOCAL FRANCHISE” in multiple locations. Servpro’s and

S&R’s sites also show photographs of mold and the mold remediation process, but

these photographs do not depict the McBeths’ property.

Although S&R’s site states that it can “carefully inspect your property for

signs of mold[,]” a precaution, in red font, immediately precedes this statement and

advises that “[l]ocal and state laws may require a specific inspection and

documentation protocol based on the size of the affected area. We can advise you on

this process, providing guidance based on your unique situation.”

The McBeths’ Exhibits 27 through 29 contain the paperwork pertinent to the

McBeths’ house and before and after photographs of the flooring. These documents

show not only the information about S&R’s 2017 job type and location, they show

the condition of the uncarpeted subfloors before S&R cleaned them and afterward.

The “before” pictures show a dark substance on the subfloors; this substance is not

shown in the “after” pictures.

The McBeths’ other exhibits cover multiple topics, including discovery

matters, mold assessments, remediation protocols, laboratory reports, and cost 24 estimates. These exhibits show that there were certain types of mold when Rachal’s

company, TMI, assessed the McBeths’ property in 2019, almost exactly two years

after S&R cleaned the subfloors in 2017. Documentation reflecting the anticipated

schedule and costs of renovating and landscaping the property are also shown. The

McBeths also introduced the franchise agreement between Servpro and S&R and a

market analysis for the house.

In addition to exhibits previously described, Defendants introduced Beau’s

signed consent form to perform services and his signed consent form to use

Sporicidin in the house. Both these forms are dated June 29, 2017. Above Beau’s

signature, the Authorization to Perform Services states, in bold font, “I HAVE

READ THIS AUTHORIZATION TO PERFORM SERVICES AND

DIRECTION OF PAYMENT, INCLUDING THE TERMS AND

CONDITIONS OF SERVICE ON THE NEXT PAGE HEREOF, AND AGREE

TO SAME.” Those terms and conditions of service contain a limitation of liability

and limitation of remedies. These limitations state that “the Provider” [S&R] is an

independent contractor and “the Franchisor [Servpro] is not a party to any agreement

with Client [the McBeths], is not a guarantor of the Provider’s Services, and is not

subject to liability arising out of such services.” They also include the

acknowledgement that “mold is commonly found throughout the environment and

25 that it is impossible to eradicate mold. PROVIDER DOES NOT GUARANTEE

THE REMOVAL OR ERADICATION OF MOLD.”

In this same document, in bold font, S&R disclaimed “ALL OTHER

WARRANTIES AND ALL IMPLIED WARRANTIES” as well as liability for

“INDIRECT, SPECIAL, NOMINAL, INCIDENDTAL, PUNITIVE OR

CONSEQUENTIAL LOSSES OR DAMAGES, OR FOR ANY PENALTIES,

REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ASSERTED,

INCLUDING CONTRACT, NEGLIGENCE, WARRANTY, STRICT

LIABILITY, STATUTE OR OTHERWISE[.]” It further limits any recoverable

damages to the lesser of “THREE TIMES THE AMOUNT PAID BY

CUSTOMER FOR THE SERVICES OR ACTUAL PROVEN DAMAGES,”

requires any claim for “faulty performance, for nonperformance or other breach” to

be made within sixty days after completion of services[,]” or within one year

“AFTER THE CLAIMING PARTY KNEW OR SHOULD HAVE KNOWN OF

THE CAUSE OF ACTION.” Both parties to the contract, the McBeths and S&R,

waived their right to a jury trial, agreeing that “ANY AND ALL CLAIMS OR

CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR

ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS CONTRACT

AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION WILL BE TRIED

BY A COURT TRIAL WITHOUT A JURY. A severability clause provided that if 26 any portion of the contract were determined to be unenforceable, the remainder of

the contract would “remain in full force and effect.”

S&R’s website contains similar language. In the Website Terms of Use, is

states, “[b]y using this website, you are agreeing to our Terms of Website Use and

our internet policies which may change from time to time[.]” It continues,

disclaiming all warranties, and stating:

Under no circumstances will SERVPRO, its affiliates, or their employees or agents (all collectively “Servpro Industries, Inc.”) be liable for any improper or incorrect use of, reliance upon, or reference to any of the information contained on this website, . . . or for any damages suffered from the direct or indirect use of, reliance upon, or reference to any of the information or content on this website, . . . Under no circumstances shall SERVPRO be liable under any theory of recovery, at law or at equity, for any types of damages, including, without limitation: direct, indirect, special, incidental, consequential, or punitive damages, or for loss of use, or lost profits, which arise out of or relate in any manner to the use, performance of, reliance upon, or access to any information, services, software, documents, or content originating from or with respect to this website, or any linked Internet address. Any claims that arise out of, relate to or are connected with the website, materials and content contained on this website or any link to an Internet address, shall be governed by, and construed in accordance with, the laws of the State of Tennessee. Any action commenced with respect to this website which concerns this website in any way shall be venued in either a Federal District Court located in Nashville, Tennessee, or a court located in Sumner County, Tennessee, and all such persons making such claims consent to the jurisdiction of such courts for these purposes.

Defendants’ exhibits include the October 19, 2018 mold assessment by Aggie

Inspector Group, showing that although the McBeths’ house contained some mold,

27 the mold was not dangerous. The August 8, 2019 Moisture Assessment Report was

also in evidence. This report noted inadequate caulking at multiple locations in

addition to inadequate window pane flashing. The report further states that the

exterior light fixtures and the transitions between the stone and the siding are not

waterproofed, noting that “[m]oisture intrusion can occur if proper repairs are not

made. Factors, such as wind and rain, can cause new problems on homes.”

Defendants’ Exhibit 12 is a June 29, 2019 plumbing invoice reflecting a

“suspected leak at toilet flange, has water stain in garage ceiling, suspected leak in

attic at copper pipe to upstairs guest bath.” The description of the work performed

shows that the plumber ruled out the suspected leaks involving the copper pipe and

the toilet flange but believed that there was a slow toilet leak beyond the wax seal

and that this leak caused the garage ceiling damage. The plumber reset the toilet and

observed no further leaks.

II. Standard of Review

We review a trial court’s grant of a JNOV under a no-evidence standard. See

Bank of Am., N.A. v. Eisenhauer, 474 S.W.3d 264, 265 (Tex. 2015). There is no

evidence to support a verdict when there is: (1) a complete absence of evidence of a

vital fact; (2) the court is barred by rules of law or evidence from giving weight to

the only evidence offered to prove a vital fact; (3) the evidence offered to prove a

vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes 28 the opposite of a vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.

2005) (citation omitted); see also Flores v. Ochoa, No. 09-21-00384-CV, 2024 WL

3706855, at *8 (Tex. App.—Beaumont Aug. 8, 2024, no pet.) (mem. op.) (citation

omitted).

The McBeths contend that the trial court erred by granting Servpro’s and

S&R’s Motion for Judgment Notwithstanding the Verdict. Generally, a trial court

must render a judgment based on a jury’s verdict in a case; a trial court is authorized

to grant a motion to disregard a jury’s verdict only if a directed verdict on the issues

would have been proper. See Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v.

Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). When a trial court’s decision to

disregard a jury’s verdict is challenged on appeal, we review the challenge using the

same standard that we use to review a challenge to a trial court’s decision to grant a

directed verdict. See Senegal v. Payne, No. 09-13-00508-CV, 2015 WL 4053504, at

*2 (Tex. App.—Beaumont July 2, 2015, no pet.) (mem. op.); Rush v. Barrios, 56

S.W.3d 88, 94 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Under that

standard, to justify the trial court’s decision to disregard the jury’s verdict in this

case, the record must conclusively establish that the jury could reach only one

decision on the liability issues submitted to it, and that no reasonable factfinder

would conclude on this record that the McBeths were entitled to the recovery they

sought. See Prudential Ins. Co. of Am. v. Fin. Review Servs. Inc., 29 S.W.3d 74, 77 29 (Tex. 2000); In re Estate of Longron, 211 S.W.3d 434, 438 (Tex. App.—Beaumont

2006, pet. denied). When the trial court does not state the reason it granted the JNOV,

and the motion for JNOV presents multiple grounds on which it should be granted,

the appellant has the burden to show that the JNOV cannot be sustained on any

grounds stated in the motion. See Sbrusch, 818 S.W.2d at 394; see also Arlington

Home, Inc., v. Peak Env’t. Consultants, Inc., 361 S.W.3d 773, 777-78 (Tex. App.—

Houston [14th Dist.] 2012, pet. denied) (affirming JNOV because nonmovant failed

to refute movant’s alleged superseding cause of mold).

Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827. In

evaluating the evidence’s legal sufficiency, we review the entire record and “credit

evidence that supports the verdict if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.” Kroger Tex. Ltd. P’ship v. Suberu, 216

S.W.3d 788, 793 (Tex. 2006) (citing City of Keller, 168 S.W.3d at 827); see Am.

Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.—Beaumont 2005,

pet. denied) (citation omitted). Under a legal sufficiency review, “[t]he final test for

legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City of Keller,

168 S.W.3d at 827.

30 III. Applicable Law

A toxic tort is a cause of action arising out of exposure to a hazardous

substance, including toxic mold. See Starr v. A.J. Struss & Co., No. 01-14-00702-

CV, 2015 WL 4139028, at *7 (Tex. App.—Houston [1st Dist.] July 9, 2015, no pet.)

(mem. op.). “A cause of action relating to mold exposure constitutes a toxic tort.”

Zhaohong Wu v. Lumber Liquidators, Inc., No. 14-20-00765-CV, 2024 WL

3160554, at *8 (Tex. App.—Houston [14th Dist.] June 25, 2024, no pet.) (mem. op.)

(citations omitted).

We recognize that many cases dealing with liability for mold exposure address

personal injury claims rather than property damage claims. See, e.g., Gaudette v.

Conn Appliances, Inc., No. 09-06-00444-CV, 2007 WL 2493437, at *1 (Tex.

App.—Beaumont Sep. 6, 2007, no pet.) (mem. op). When it comes to proof of

causation, however, there is no difference in what a plaintiff requires to prevail:

scientifically reliable expert evidence linking the alleged cause to the alleged effect.

See Helena Chem. Co. v. Cox, 664 S.W.3d 66, 76 (Tex. 2023) (expressly applying

the same standard to property damage and personal injury cases); see also Plunkett

v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 115–16 (Tex. App.—Dallas 2009, pet.

denied) (affirming summary judgment in a suit including a claim for property

damage allegedly due to mold). Accordingly, evidentiary standards of causation

apply equally to mold-related property damage and personal injury claims. See 31 Helena Chem. Co., 664 S.W.3d at 76. Such cases usually require proof of both

general and specific causation linking the stimulus to its alleged result. See Mobil

Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex. App.—Beaumont 2006, pet. denied)

(referencing the alleged causal relationships among asbestos, cigarette smoking, and

lung cancer). A party proves general causation through evidence showing that the

stimulus is capable of causing the alleged result. See Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 714 (Tex. 1997); see also Mobil Oil, 187 S.W.3d at 270

(same). Proof of specific causation, however, requires evidence that the substance

caused a particular injury or damage. See Havner, 953 S.W.2d at 714–15. Specific

causation may be established by evidence showing that exposure to the substance

increased the risk of their particular harm. See id.

Since the effects of mold are matters outside the knowledge of laypersons,

causation must be proven using reliable expert evidence. See Starr, 2015 WL

4139028, at **7–8 (affirming summary judgment in a mold case in the absence of

expert evidence); see also Gaudette, 2007 WL 2493437, at *8 (affirming summary

judgment based on the exclusion of unreliable expert evidence). The expert’s

opinion must be reliable, and the “mere ipse dixit of a credentialed witness[]” will

not support a verdict. Univ. of Tex. Sys. v. Bartek, No. 05-20-00525-CV, 2022 WL

17986015, at **5–6, 9 (Tex. App.—Dallas Dec. 29, 2022, no pet.) (mem. op.)

(reversing a judgment in the plaintiff’s favor in a mold case because her expert was 32 unreliable). The proponent of the evidence bears the burden of establishing

reliability. See Plunkett, 285 S.W.3d at 115–16 (addressing expert testimony in the

context of summary judgment in a mold case). When an expert’s opinion “suffers

from analytical gaps,” it is unreliable. Bartek, 2022 WL 17986015, at *9. When

evaluating the reliability of an expert’s opinion, we also look to the six non-exclusive

factors set forth in E.I. DuPont de Nemours & Co. v. Robinson. 923 S.W.2d 549,

557 (Tex. 1995); see Helena Chem. Co., 664 S.W.3d at 74. Also, the plaintiff must

negate other plausible causes of the harm, provided that such causes are raised by

the evidence. See Helena Chem. Co., 664 S.W.3d at 80–81 (citing Transcon. Ins.

Co. v. Crump, 330 S.W.3d 211, 218 (Tex. 2010)).

IV. Analysis

The McBeths’ first issue, with multiple subparts, argues that “[t]he trial court

erred by granting Defendants’ Motion for Judgement [sic] Notwithstanding the

Verdict because the verdict of the jury was supported by competent uncontroverted

evidence.” One such subpart states that in 2017 and 2019, the house contained “mold

requiring remediation[,]” and Servpro’s and S&R’s acts therefore were a producing

cause of the McBeths’ damages because the McBeths relied on those acts.

In the McBeths’ Third Amended Petition, their live pleading at the time of

trial, they alleged causes of action against Servpro and S&R for negligence and

33 violations of the DTPA. 6 Causation is an essential element of both a negligence and

a DTPA cause of action. See Doe v. Boys Clubs, 907 S.W.2d 472, 477–82 (Tex.

1995) (addressing the causation element in both negligence and DTPA contexts);

see also Tex. Bus. & Com. Code Ann. § 17.50(a) (setting forth the producing cause

standard of economic damages or mental anguish in the context of a DTPA claim).

The essence of the McBeths’ claims is that S&R, and by extension Servpro,

did not “identify or address the source of the mold, and also failed to create a mold

remediation protocol[.]” The McBeths contend that S&R’s failure to test and identify

the unknown substance as mold in 2017 allowed the proliferation of mold, which

caused the McBeths’ medical symptoms, which eventually led to the testing for and

discovery of mold in the house in 2019, two years after S&R provided its services.

They contend that S&R’s failure deprived them of the opportunity to have the

“mold” remediated in 2017, thus allowing mold to spread and cause costly property

damage. They further contend that Servpro was vicariously liable for S&R’s acts.

According to the McBeths’ theories of recovery, the “mold” discovered in

2017 cost them not only the diminished value of their house, but the value of the

mold-contaminated personal property that they had to leave behind when they

6The McBeths’ Third Amended Petition also alleged causes of action for fraud

and breach of contract. Since the McBeths abandoned their breach of contract claim and since the jury answered the fraud questions in Servpro’s and S&R’s favor, we need not consider the contract or fraud aspects of the McBeths’ claim. 34 moved out of the house to avoid the mold. The McBeths contend that if S&R had

correctly identified the unknown substance as mold requiring remediation in 2017,

they would have had it remediated and the “mold” would not have spread to other

areas of their house necessitating extensive remediation, a sale at a loss, and the loss

of the possessions in the house.

Since the causation element of a mold damage claim must be proven through

expert evidence, and since Rachal was the only expert to offer such causation

evidence, we must examine his opinion to see whether it adequately supports the

jury’s findings that Servpro’s/S&R’s acts were a proximate or producing cause of

the McBeths’ damages. See Gaudette, 2007 WL 2493437, at *8. If Rachal’s opinion,

that Servpro/S&R should have tested the mud-like substance, exhibits analytical

gaps, it will not support the jury’s verdict. See Bartek, 2022 WL 17986015, at **5–

6. Under Robinson, we may look to the following non-exclusive factors to determine

whether Rachal’s opinion is scientifically reliable:

1. the extent to which the theory has been or can be tested; 2. the extent to which the technique relies upon the subjective interpretation of the expert; 3. whether the theory has been subjected to peer review or publication; 4. the technique’s potential rate of error; 5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and 6. the non-judicial uses which have been made of the theory or technique.

See Robinson, 923 S.W.2d at 557. 35 Rachal testified that he does not necessarily assess mold with an eye to future

litigation, thus arguably describing a non-judicial use of his expertise. Rachal did

not, however, testify that his opinion about testing the mud-like substance had been

peer reviewed or was generally accepted in the relevant scientific community, or

what the rate of error might be if all suspected mold were tested. His theory cannot

be tested because the mud-like substance was not sampled or tested in 2017, and it

therefore cannot be determined whether the same or a similar substance was or was

not present two years later. Further, although Rachal opined that he would have

tested it, he did not offer evidence of industry standards or that such standards would

have required S&R to sample the substance they cleaned in 2017. Absent this

testimony, there is no evidence that a breach of any duty proximately caused the

McBeths’ alleged damages. See Gaudette, 2007 WL 2493437, at *7 (“we are

required to look to what is generally accepted in the scientific community”) (citing

Havner, 953 S.W. at 720-21). By evaluating Rachal’s opinion against the Robinson

factors, we conclude that his opinion was not shown to be sufficiently reliable to

support the conclusion that the McBeths’ house contained mold in 2017.

Assuming without deciding that Servpro/S&R improperly advertised mold

assessment or remediation, thus violating the DTPA or other relevant standards, if

the unknown substance found in 2017 was not mold, it did not require remediation

and could not have led to the mold “contamination” Rachal diagnosed two years 36 later in 2019. Even if this mud-like substance was mold, if it was not toxic mold, the

same logic applies: it could not have caused the McBeths’ damages. Therefore, the

threshold inquiry is whether the evidence shows that the McBeths’ home contained

toxic mold, or any mold, on June 29, 2017, the date that S&R allegedly should have

recognized the “mold” and proceeded accordingly.

The McBeths’ theory of recovery assumes, without reliable supporting expert

evidence, that the unknown substance found on the subfloors in 2017 was, indeed,

mold. Their theory further assumes, again without reliable supporting expert

evidence, that this “mold” was toxic. Accordingly, the McBeths posit that S&R’s

failure to discover this “toxic mold” in 2017 was a producing cause of their damages.

This approach to causation, however, overlooks the need for expert evidence to

connect the mud-like substance found in 2017 with the mold found in 2019 that

allegedly contaminated the house to the point that it became uninhabitable. See

Helena Chem. Co. 664 S.W.3d at 71–80, 82 (affirming summary judgment absent

reliable expert scientific evidence linking aerial spraying drift to reduced crop yield);

Starr, 2015 WL 4139028, at *7 (requiring expert testimony to show causation in a

mold case). Absent evidence of the standard of care in such a case, or that S&R had

a duty to test the unknown substance in 2017, we cannot say that a S&R’s acts or

omissions caused or contributed to the McBeths’ damages. See Helena Chem. Co.,

664 S.W.3d at 75, n. 5 (requiring the standard of care for aerial spraying to be shown 37 by expert testimony); see also Houston Area Safety Council, Inc. v. Mendez, 671

S.W.3d 580, 582–85 (Tex. 2023) (discussing duty in the context of a negligence

case).

In Helena Chemical, the plaintiffs alleged that aerial spraying of an herbicide

up to twenty-five miles from their cotton fields damaged their crops and caused a

reduced crop yield. 664 S.W.3d at 69–70. The court determined that the plaintiffs

had presented insufficient causation evidence because they did not offer evidence to

“fill the gap in the testing data.” Id. at 77–80. Likewise, the McBeths have not

accounted for the analytical gap between a mud-like substance reported in 2017 and

mold discovered in 2019.

The McBeths assume that there was mold in their house in 2017, as have their

witnesses. The McBeths rely on this assumption to support their contention that S&R

wrongfully failed to properly address this “mold,” leading to the McBeths’ damages.

If, however, an opinion is based on an erroneous assumption, it is no evidence. See

Bartek, 2022 WL 17986015, at *8. Since the mud-like substance found in 2017 was

not sampled or tested, and since the McBeths adduced no evidence that S&R had a

duty to test it, the opinions based on the unverified assumption that it was mold

cannot support the jury’s verdict. See id.

The McBeths also assume that the unknown substance found in 2017 was not

only mold, but toxic mold. They base this assumption in part on the alleged temporal 38 relationship between the appearance and severity of their symptoms and the duration

of their residence in the house. The McBeths’ argument that they were not ill before

moving into the house and improved after moving out is not evidence of S&R’s

alleged error, but instead relies on the fallacy of post hoc ergo propter hoc. See

Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (“[c]are must be taken to avoid

the post hoc ergo propter hoc fallacy, that is, finding an earlier event caused a later

event merely because it occurred first.”); Leafguard of Tex. v. Guidry, No. 09-21-

00034-CV, 2023 WL 3369176, at *7 (Tex. App.—Beaumont May 11, 2023, no pet.)

(mem. op.). Chronology will not support a finding of causation. See Leafguard, 2023

WL 3369176, at *7. Although the Jelinek court recognized that a close temporal

proximity raises the suspicion that the event caused the conditions, “suspicion has

not been and is not legally sufficient to support a finding of legal causation.” Jelinek,

328 S.W.3d at 533 (quoting Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007)).

While we do not dispute that Rachal found mold in the McBeths’ house in

2019, this mold discovery cannot support the belief that there was mold in the house

two years earlier, or that Servpro/S&R should have tested and discovered it. See

Arlington Home, 361 S.W.3d at 780–81 (affirming JNOV despite expert testimony

that the mold identified “a few months” after an inspection “that mold was present

in such density and over such a wide surface that it had to have been present when

Live Oak performed its inspection in September 2005”). 39 We further observe that although the McBeths’ symptoms are what eventually

led them to have their house tested for mold, they have not met their burden to negate

plausible alternate causes of their symptoms raised by the evidence. See Helena

Chem. Co., 664 S.W.3d at 80. When the McBeths renovated the house in 2017, they

not only replaced the flooring, they replaced the HVAC system, replaced lighting

fixtures, and remodeled the kitchen. It is plausible that, as the Aggies determined

when they assessed the mold levels, the mold levels in the house were not dangerous,

and the McBeths’ symptoms were instead a reaction to the materials used to renovate

the house. Beau implicitly acknowledged this plausible alternate scenario when he

testified that they sought a house that was not new construction “because of off-

gassing that happens from materials that are naturally part of the home-building

process.” Since the McBeths failed to negate a relationship between their symptoms

and off-gassing from the materials used to renovate the house, they have not shown

that their symptoms were due to mold exposure.

Since the McBeths did not prove that any act or omission by Servpro or S&R

caused their damages, we overrule their first appellate issue. We need not consider

their second appellate issue, the alleged applicability of the economic loss rule,

because doing so would not alter the outcome of their appeal. See Tex. R. App. P.

47.1.

40 V. Conclusion

Having overruled the McBeths’ first issue on appeal and declining to consider

their second issue, we affirm the trial court’s Judgment Notwithstanding the Verdict.

AFFIRMED.

W. SCOTT GOLEMON Chief Justice

Submitted on November 21, 2023 Opinion Delivered December 19, 2024

Before Golemon, C.J., Wright and Chambers, JJ.