Jason Alexander v. the Woodlands Land Development Company L.P., the Howard Hughes Corporation, LJA Engineering, Inc. F/K/A LJA Engineering & Surveying, Inc., and James R. Bowles

Opinion

Opinion issued December 16, 2025.

In the

Court of Appeals for the

First District of Texas ———————————— NO. 01-22-00827-CV ——————————— JASON ALEXANDER, JOE MCADAMS, ELIAS ABRAHAM, LAWRENCE ANDERSON, LISA ASTIN, JORGE ATENCIO, DAVID AYRE, DOUGLAS AUSTIN, JAMES BARCLIFT, MARTIN BENSON, MARIA BLACKWELL, THOMAS BOEHME, CHRISTOPHER BOYER, SCOTT CALL, ORLANDO CAMARILLO, STEPHEN CAPPS, CARLOS AREVALO-GARZA, GEORGE COBB, TERESA CONRAD, JIMMY CRANE, LEE DAVIS, DUSTIN DE LOS SANTOS, JAMES DIEMER, LAWRENCE DIO, ROBERT DIXON, TIMOTHY DIXON, DWAYNE DUKE, DARLENE DYMOND, DAVID EIDSMOE, MARTIN DURAND, DEAN CORBETT, HILARY ELGART, WILLIAM EVANS, CESAR HERNANDEZ GOMEZ, DEAN FANGUY, WOLFGANG FAUST, SONYA FLOWERS, GREG FOLKS, MITCH FUENTES, ROGELIO GAMIZ, ROBERTO GARCIA-HOOKES, RONALD GILCREASE, RAUL GIORGI, MICHAEL GIOVINAZZO, ARCHIE GREGORY, SALLY GRIFFIN, DREW GOODBREAD, HECTOR GUIZAR-BLANCO, KENNETH HAYEK, LARRY HEIGHINGTON, PAUL HEIMLICH, FERNANDO HESS, DONALD HICKEY, PATRICK HOLUB, SETH HOVER, MICHAEL HOWARD, ALEXIS HURST, COSME IGLESIAS, JOHN HARRIS, KERRY HOELLER, SEAN IRBY, TRACY JACKSON, DAVID KANDT, DEBRA KING, KENNETH LAUDUCCI, JOSEPH LOCKE, CARLOS LOPEZ, TAMMY FOSTER, DAVID MA, JACOB MAGIN, HARALD PAULI, MATTHEW MARTIN, LESLIE MARTINEZ, MCWILLIAM MALAVE, GAIL MANISCALCO, PAUL MARSTON, DALLIS LINDLEY, JAMES MARTIN, GABOR MARQUEZ, BLAKE HARRIGAN, KEVIN REINOSO, ANTHONY PADILLA, KONRAD IZBINSKI, TORSTEN SCHMIDT, ROBERT MCCARTHY, LUCIO ELIZONDO, CHRISTOPHER MCKEE, CALEB MCLAUGHLIN, GLENN MCMILLEN, VIVEKANAD SISTA, JEFF MOSS, WENDELL CLEAVER, RISELEA MCLEROY, JASON MILESKI, ROBERTO OLIVAS, RANDY MOORMAN, JAMES MUELLER, PATRICIA NOACK, MATTHEW NOVAK, DAVID ODORIZZI, TRAVIS THOMAS, JERE BRUBAKER, JEREMY OEHMEN, STAN OKAZAKI, NGIABI GICUHI, BERNARD OTTEN, RICARDO PALMA, OSCAR MUNOZ PAZ, OLGA PERRY, GEORGIE PETERSEN, PENNY PRATER, GERARDO RAMIREZ, TIMOTHY RENNIE, DAGOBERTO MORA, MICHAEL RICHEY, KATHLEEN RIZZO, RICHARD ROACH, LUIS MARROQUIN ESPINOSA, KAZEM SALEHIAN, ARTHUR SALERNO, HARDY BAKER, SUSAN SARAZEN, MARC CRUDGINGTON, CLINTON SCOTT, JAMES SEAMANS, ESTEBAN SEANEZ, SAUL SELLINGER, TIMOTHY SERRANO, ROY SLAY, MARIUS DOYLE, TIMOTHY SMITH, MIRZA BAIG, EDGARDO RAMOS-TENORIO, JAMES SOEDER, JOSEPH MCGAUGH, EDWARD STOWE, JOSEPH EFFERT, ERIC TABANOU, RILEY ARCHER, AVINASH TAWARE, CHRISTOPHER BACK, BLYTHE THOMAS, LAKIA CHAMPAGNE, WILLIAM THOMPSON, ANIL PALASAMUDRAM, LEO TEPLITSKILY, JEREMY TRAVIS, LUIS HESS, TIMOTHY LEE, TIBBS FAMILY TRUST, TIMOTHY VAN OOST, CAROLINA GARCIA, THILO VOSS, DAVID MINOR, JERRY WEBB, DEBRA WHITLA, THOMAS WOJAHN, TIMOTHY YANAVAGE, YOUNG LEE, MANUEL ABREU VARGAS, JOSEPH XIE, FERNANDO ZAVALA, ALEX ZENGO, WALTER FENTON, KENNETH BECK, JASON BRADEN, RICHARD BUKOVICH, KRISHNANAND ANANDAN, GREGORY BURKHART, THOMAS BARLOW, LENWOOD BORDELON, TOMMY DRAKE, TIMARRON LAKES COMMUNITY ASSOCIATION, STEVEN CALKINS, CALEB VARIO, ROBERT CAPPADONA, DEYSE NORWITZ, ELIAS CHIRICO, MIRIAM DE DIEGO ANITUA, RANDALL CRIMMINS, KIMBERLEE DYER, GEORGE GARNER, LUANN INGRAM, MORGAN

2 GARTNER, JOSEPH LONG, FRANKLIN HALTER, JONATHAN HANEY, KATHLEEN HERR, LUIS CORDOBA, KAREN CLARKE, MICHAEL JONES, SCOTT FAIRLEY, ALEX IRVINE, RAVINDRA JOSHI, MICHAEL YNOSENCIO, DEEPESH KAUSHISH, HAYWARD KELLEY, MARK CRAWFORD, WADE KHOURY, EDWARD WOLF, WILLIAM WOOD, VICTOR WILLIAMS, WILLIAM LAINHART, STEVEN RESNICK, MARCO SANCHEZ, CHARLES MART, BRUCE SMITH, CAROLYN STUBER TRUST, J. JESUS MORENO TROUSSELLE, KHANG NGUYEN, JOHN WADELLA, TERESA NOLAND, LARRY WARD, PAUL PEDLAR, SCOTT TOWNSEND, LUIS CORONA, MORRIS REINISCH, MICHAEL LONG, CHRIS REICHARDT, CORY MOORE, CHRIS STAVINOHA, MARC BEAUCHAMP, BRUCE HOOK, KEITH WINTERS, JOSEPH WITCRAFT, MATHEW VALICEVIC, MICHAEL FISCHER, JACINTO SOLIS, RICARDO RAMIREZ, PATRICK MCCORMACK, STEVEN IRION, SHAWNA ALEXANDER, MARISA ANDERSON, BRAD ASTIN, PAOLA MORON FERNANDEZ, LUZ MARIA AYRE, MARYELLEN AUSTIN, CYNTHIA BARCLIFT, GEORGETTE BENSON, JETTE BOEHME, KIMBERLY CALL, RUBI CAMARILLO, FRANCES M. CAPPS, ALEJANDRA SOFIA CARDENAS-MARTINEZ, SHARON CROSS, DEBRA H. CRANE, ANDREA DE LOS SANTOS, MAUREEN R. DIEMER, SUSAN W. DIO, DEBRA DIXON, SUSAN R. DIXON, KIMBERLY DUKE, KELLY EIDSMOE, MARIA CORINA DURAND, KAREN CORBETT, MARIA FERNANDA ROSIQUE FLOTA, BRIDGET FANGUY, CHRISTINE JASCHINSKI, BETH FOLKS, DAWN FUENTES, VANESSA GAMIZ, PAMELA GARCIA-HOOKES, SANDRA GILCREASE, ANNA GIORGI, TAMI GIOVINAZZO, KATHLEEN E. GREGORY, DONNA GOODBREAD, CARMEN MUNOZ-DIEGO, JENNIFER HAYEK, MAUREEN HEIGHINGTON, BONNIE S. HEIMLICH, ROSA HESS, ELIZABETH HICKEY, KAY HOLUB, LINDSEY HOVER, LEIGH HOWARD, NATHAN HURST, SHANNON IRBY, GABRIELA JACKSON, BRENDA KANDT, DEBORAH LAUDUCCI, LIZZETH MORALES, VI NGUYEN, LORI MAGIN, HELENE PAULI, AND ALICIA MARTIN, Appellants v. THE WOODLANDS LAND DEVELOPMENT COMPANY L.P., THE

3 HOWARD HUGHES CORPORATION, LJA ENGINEERING, INC. F/K/A LJA ENGINEERING & SURVEYING, INC., AND JAMES R. BOWLES, Appellees

On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2018-36108

MEMORANDUM OPINION1

Appellants2 challenge the trial court’s rendition of summary judgment in favor

of appellees—The Woodlands Land Development Company L.P., the Howard

1 Appellants filed a motion for rehearing and a motion for rehearing en banc of this Court’s November 26, 2024 opinion and judgment. On December 9, 2025, we denied the motion for rehearing, withdrew our November 26, 2024 opinion and judgment, and issued this opinion and judgment in their place. Our disposition remained the same. We denied appellants’ motion for rehearing en banc as moot. In re Wagner, 560 S.W.3d 311, 312 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding [mand. denied]) (“Because we issue a new opinion in connection with the denial of rehearing, the motion for en banc reconsideration is rendered moot.”); see also Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (noting that motion for en banc reconsideration rendered moot by withdrawal and reissuance of opinion and judgment). To correct an oversight in our December 9, 2025 opinion and judgment, we now withdraw our December 9, 2025 opinion and judgment and issue this opinion and judgment in their place. Our disposition remains the same. We issue this second substitute opinion and judgment solely to note in addition that appellants’ February 10, 2025 Unopposed Motion to Exceed Word Limit for Motion for Panel Rehearing and Rehearing En Banc is granted. 2 We do not list appellants by name in the body of the order because of their large number. By our memorandum order of September 26, 2023, the appeal was dismissed for want of jurisdiction on The Woodland Land Development Company and Howard Hughes’s “Agreed Motion to Dismiss Non-Appellants from Appeal” as to the claims brought by the following individuals: Dotty McAdams, Jeff Benton, Randy 4 Hughes Corporation (Howard Hughes), LJA Engineering, Inc., formerly known as

LJA Engineering & Surveying, Inc. (LJA Engineering), and James R. Bowles

(collectively, appellees)—in their suit against appellees for negligence, gross

negligence, and negligent undertaking.3 In four issues, appellants contend that the

trial court erred in granting appellees summary judgment.

We affirm.

Background

In their seventh amended petition, appellants alleged that they owned homes

in a residential subdivision known as “Timarron” in The Woodlands, Texas.

According to appellants, the subdivision was bordered on its northern and western

sides by Spring Creek, a tributary to the West Fork of the San Jacinto River.

Deaton, Hope DuBois, Patricia Harmon, Cheryl Ann Harland, Tim Huber, David Jupp, John Abright, William Batson, Felix Kleiman, David Lozano, Julio Mayagoitia, Earl McDonald, Jorge Gonzalez, Richard Morar, Elliot Pederson, Michael Mize, Jeremy Tinker, Clayton Repka, Jeffrey Shinsato, Robert McRae, Catherine Dunaway, Ollie Verchow, Benito Tagle, Brian Welp, Matthew Derganc, Marcos Varona, Trevor Taggart, Robert Bivens, Robert Perez Bobadilla, Elda Calhoon, Joan Flowers, Frank Gore, Kent Tarou, John Hoffman, Johanna LaChance, Maureen McMullan, Scott Nylund, Yan Wang Order, Paul Dosescu, Francisco Cano Onate, David Williams, Jessica Benton, Karen A. Deaton, Lawrence Harmon, Yadira Gonzalez, Sarah Huber, Amber Michelle Abright, and Amber M. Batson. See TEX. R. APP. P. 42.1(a)(2). 3 Appellants also brought claims for violations of the Texas Deceptive Trade Practices Act (DTPA) against The Woodlands Land Development Company and Howard Hughes, but appellants do not challenge on appeal the trial court’s rendition of summary judgment in favor of The Woodlands Land Development Company and Howard Hughes on appellants’ DTPA claims. Thus, such claims will not be addressed in this opinion. See TEX. R. APP. P. 47.1.

5 Appellants further alleged that in October 1994, “a catastrophic rainstorm hit”

the Houston, Texas area, “dropp[ing] between [twenty] and [thirty] inches of rain

throughout . . . [the] northern portions of Harris County,” Texas and “causing

historic flooding.” “[I]n the vicinity of the Timarron area, the [flooding from the]

October 1994 [storm] was estimated to have reached flood levels at or about a

500-year flood event.” (Emphasis omitted.) According to appellants, The

Woodlands Land Development Company and LJA Engineering knew about the

“[p]roblems with flooding” in Timarron, including the flooding related to the

October 1994 storm.

After the October 1994 storm, The Woodlands Land Development Company

and Howard Hughes began to design and develop Timarron. “Timarron was built in

stages or sections,” and “[a]ll sections [were] built outside of or beyond the 100-year

floodplain with some portions needing to be filled with dirt in order to be elevated

so as to be above the 100-year flood levels.” Appellants, however, alleged that

“many of these sections remained within the 500-year floodplain, despite the fact

that th[o]se areas flooded in the October 1994 [storm].” And according to appellants,

The Woodlands Land Development Company and Howard Hughes knowingly built

sections of Timarron in the 500-year floodplain; they “did not develop and build

[Timarron] in a manner that put properties outside of, or above, the 500-year

floodplain to reduce the likelihood of flooding.”

6 Appellants further alleged that in planning Timarron, The Woodlands Land

Development Company and Howard Hughes “set a standard[] policy and criteria for

determining the minimum elevation of a house relative to its geographic location

and that location’s risk of flooding by stating that all house slabs shall be at least

[six] inches above the October 1994 [storm flood level] . . . , which . . . was at or

above the 500-year floodplain level in the area.” (Emphasis omitted.) That

information was provided to LJA Engineering and Bowles, who “then prepared

plans showing th[at] minimum elevation for each of the homes to be built near

Spring Creek” by home builders. But appellants alleged that the information given

by The Woodlands Land Development Company and Howard Hughes to home

builders in Timarron related to “setting the minimum slab elevations of the[] homes

was about [one]-foot lower than both the October 1994 [storm] flood level and the

500-year floodplain level.” Ultimately, “[t]he lots . . . were not elevated to prevent

them from flooding during a 500-year flood event, nor were the streets elevated to

make them . . . passable during such an event.”

According to appellants, in August 2017, Hurricane Harvey “dumped about

[twenty-five] inches of rain over the Spring Creek watershed upstream of Timarron

over a [four]-day period.” “This was about the same amount of rain that fell during

the October 1994 [storm] and [it] produced slightly lower flood levels along Spring

Creek than . . . the October 1994 [storm did].”

7 Appellants also alleged that they owned homes in Timarron that flooded

during Hurricane Harvey, which caused appellants to be “displaced from their homes

and . . . endure[] months and years of costly repairs and rebuilding.” And they

alleged that The Woodlands Land Development Company and Howard Hughes

“made errors by instructing home builders to set their slabs for all or some of the

homes in Timarron at an elevation that was unreasonably low for the elevation of

the land it was built on” and was below “the standard [that The Woodlands Land

Development Company and Howard Hughes] had set.” According to appellants, The

Woodlands Land Development Company and Howard Hughes “knew or should

have known to have the houses built at an elevation adequate to prevent the

likelihood of flooding” based on information “from previous flooding in th[e] area,”

such as the flooding from the October 1994 storm.

Appellants brought claims against appellees for negligence, gross negligence,

and negligent undertaking. As to their negligence and gross negligence claims

against The Woodlands Land Development Company and Howard Hughes,

appellants alleged that The Woodlands Land Development Company and Howard

Hughes owed duties of care to appellants and breached their duties by:

• Developing Timarron in a manner that cause[d] lots and homes to flood during a foreseeable weather event;

• Instructing home builders to set minimum slab elevations much lower than the standard set by The Woodlands Land Development Company and Howard Hughes; 8 • Failing to use ordinary care in setting minimum slab elevations for homes to be built in [Timarron]; and

• Failing to use ordinary care in monitoring and overseeing that the home builders built to the minimum slab elevation standards, per the terms of their contract with the builders.

Appellants also alleged that the acts or omissions of The Woodlands Land

Development Company and Howard Hughes proximately caused their injuries and

damages.

Further, appellants asserted that the conduct of The Woodlands Land

Development Company and Howard Hughes, when viewed from the standpoint of

the actors at the time of the occurrence, involved an extreme degree of risk,

considering the probability and magnitude of the potential harm to others. And the

conduct demonstrated an attitude of conscious indifference for the rights, safety, and

welfare of others and showed that The Woodlands Land Development Company and

Howard Hughes had actual and subjective awareness of the dangers of such conduct.

Because The Woodlands Land Development Company and Howard Hughes

“proceeded with a conscious indifference to the rights, safety, and welfare of others,

including [appellants],” appellants asserted that they were liable to them for

exemplary damages.

As to their negligent undertaking claims against The Woodlands Land

Development Company and Howard Hughes, appellants alleged “[a]n additional

9 duty” to appellants was created when The Woodlands Land Development Company

and Howard Hughes “sought to dictate slab elevations within [Timarron].”

According to appellants, The Woodlands Land Development Company and Howard

Hughes, “undertook to dictate minimum slab elevations for all homes built [in

Timarron]” and “the[] slab elevations were dictated for the sole purpose of protecting

the property of [appellants], specifically the homes built in a development located in

an area known to be subject to flood hazards.” Further, The Woodlands Land

Development Company and Howard Hughes “failed to exercise reasonable care in

dictating the[] slab elevations by failing to check the elevations against historical

flood data in [their] possession of which [they] knew or should have known, and by

failing to monitor or oversee that home builders actually built to the specified

elevations.” Appellants alleged that they relied on The Woodlands Land

Development Company and Howard Hughes to develop Timarron in a manner safe

from reasonably foreseeable flooding. According to appellants, “[b]y developing in

an area known to be subject to foreseeable flooding without exercising reasonable

care in dictating minimum slab elevations,” The Woodlands Land Development

Company and Howard Hughes increased appellants’ risk of harm. The “negligent

development” by The Woodlands Land Development Company and Howard

Hughes was the proximate cause of and/or contributed to the harm suffered by

appellants “during a foreseeable flooding event.”

10 As to their negligence and gross negligence claims against LJA Engineering

and Bowles, appellants alleged that LJA Engineering and Bowles owed duties of

care to appellants and LJA Engineering and Bowles breached their duties by:

• Failing to use ordinary care in the analysis, design, and engineering of [Timarron];

• Failing to use ordinary care in setting minimum slab elevations for homes to be built in [Timarron]; and

• Other acts deemed negligent and grossly negligent.

Appellants also alleged that the acts or omissions of LJA Engineering and Bowles

were a proximate cause of appellants’ injuries and damages.

Further, appellants alleged that the conduct of LJA Engineering and Bowles,

when viewed from the standpoint of the actors at the time of the occurrence, involved

an extreme degree of risk, considering the probability and magnitude of the potential

harm to others. And their conduct demonstrated an attitude of conscious indifference

for the rights, safety, and welfare of others and showed that LJA Engineering and

Bowles had actual and subjective awareness of the dangers of such conduct. Because

LJA Engineering and Bowles “proceeded with a conscious indifference to the rights,

safety, and welfare of others, including [appellants],” appellants asserted that LJA

Engineering and Bowles were liable to them for exemplary damages.

As to their negligent undertaking claims against LJA Engineering and Bowles,

appellants alleged that “[a]n additional duty to [appellants] on the part of [LJA

11 Engineering and Bowles] was created when [they] sought to analyze, design, and

engineer the subdivision, the storm water management systems, and the minimum

slab elevations for homes built” in Timarron. Specifically, LJA Engineering and

Bowles “undertook to analyze, design, and engineer [Timarron], the storm water

management systems, and the minimum slab elevations for homes to be built” in

Timarron, and “the[] undertakings were set for the ultimate purpose of protecting

the property of [appellants], specifically the homes built in a development located in

an area known to be subject to flood hazards.” According to appellants, LJA

Engineering and Bowles failed to exercise reasonable care in analyzing, designing,

and engineering Timarron, the storm water management system, and the minimum

slab elevations for the homes to be built in Timarron by failing to properly apply

historical flood data of which they knew or should have known. Appellants relied

on LJA Engineering and Bowles “to analyze, design, and engineer [Timarron], the

storm water management system, and the minimum slab elevations for homes to be

built” in Timarron “in a manner safe from reasonably foreseeable flooding,” and by

failing to exercise reasonable care in performing their services, LJA Engineering and

Bowles increased appellants’ risk of harm. The negligent analysis, design, and

engineering by LJA Engineering and Bowles was the proximate cause of and/or

contributed to the harm suffered by appellants during a foreseeable flooding event.

12 Appellees answered,4 generally denying the allegations in appellants’ petition

and asserting certain affirmative defenses, including estoppel. Appellees then filed

multiple summary judgment motions related to appellants’ claims against them.

Howard Hughes moved for summary judgment, arguing that it was entitled to

judgment as a matter of law on appellants’ negligence, gross negligence, and

negligent undertaking claims against it because it was not involved in the

development of Timarron, either directly or indirectly. According to Howard

Hughes, it acquired an ownership interest in The Woodlands Land Development

Company after Timarron was platted and was simply the parent company of The

Woodlands Land Development Company at the time appellants filed suit. Further,

appellants had not alleged a theory of indirect liability against Howard Hughes, such

as alter ego or piercing the corporate veil.

Howard Hughes asserted that it was entitled to summary judgment because no

evidence existed to support the elements of appellants’ negligence, gross negligence,

and negligent undertaking claims against it. For example, according to Howard

Hughes, appellants could not establish the elements of duty or breach against

Howard Hughes or “the additional elements for gross negligence.” Additionally,

even if appellants had evidence of duty and breach related to Howard Hughes, there

4 The Woodlands Land Development Company and Howard Hughes filed a joint answer, and LJA Engineering and Bowles filed a joint answer.

13 was no evidence that Howard Hughes was the proximate cause of appellants’

damages. Thus, Howard Hughes asserted that it was entitled to summary judgment

on appellants’ claims against it on matter-of-law grounds as well as no-evidence

grounds.5

In their response to Howard Hughes’s summary judgment motion, appellants

argued that Howard Hughes was not entitled to judgment as a matter of law on their

claims for negligence, gross negligence, and negligent undertaking because Howard

Hughes did not “conclusively establish that [it] was not involved.” Instead, the

deposition testimony of Welbes established that “when the decision was made to

develop Timarron,” Howard Hughes “was an owner” of The Woodlands Land

Development Company, and “by 2016, [The Woodlands Land Development

Company] was 100 percent owned” by Howard Hughes. Further, appellants asserted

that the email which Howard Hughes had attached to its summary judgment motion

conflicted with the deposition testimony of Welbes, and according to appellants, it

did not matter that Howard Hughes “did not have any ownership control of [The

Woodlands Land Development Company] at the time the flooded

5 Howard Hughes attached to its summary judgment motion a copy of the transcript from the depositions of Tim Welbes, an employee of Howard Hughes and co-president of The Woodlands Land Development Company, as well as the copy of an email, stating that Howard Hughes “did not have any ownership control of [The Woodlands Land Development Company] at the time the flooded properties . . . were platted.”

14 properties . . . were platted” because the “platting of a subdivision occurs well before

the design and development of the subdivision and the setting of the slab elevations

for homes being built in the subdivision.” Further, appellants argued that the

no-evidence portion of Howard Hughes’s summary judgment motion should be

denied because there was more than a scintilla of evidence that Howard Hughes was

involved in the development of Timarron.6

In its reply to appellants’ response, Howard Hughes reiterated that it did not

develop Timarron, it was not involved in the development of Timarron, and

appellants had not asserted a theory of indirect liability against Howard Hughes.

Further, none of the evidence cited by appellants in their response showed that

Howard Hughes was involved in the actual development activities about which

appellants complained, namely, the allegedly negligent determination of minimum

slab elevations for the homes on appellants’ properties. Thus, because appellants

could not establish that Howard Hughes was involved in the development activities

about which appellants complained, appellants could not establish any element of

their negligence, gross negligence, or negligent undertaking claims. According to

Howard Hughes, Appellants were required to “have evidence indicating that

6 Among other things, appellants attached to their response a copy of the transcript from Welbes’s deposition.

15 [Howard Hughes] itself engaged in some conduct that subject[ed] it to liability,” and

they “ha[d] none.”

The trial court granted Howard Hughes summary judgment on appellants’

negligence, gross negligence, and negligent undertaking claims against it.

Next, The Woodlands Land Development Company, LJA Engineering, and

Bowles7 moved for summary judgment on appellants’ negligence, gross negligence,

and negligent undertaking claims against them, asserting that they were entitled to

judgment as a matter of law. In their motion, The Woodlands Land Development

Company, LJA Engineering, and Bowles explained that appellants were

homeowners in Timarron, a subdivision that flooded during Hurricane Harvey. The

Woodlands Land Development Company “began the process of developing”

Timarron by “taking large tracks of raw land” and “dividing them into smaller (but

still large) areas, called sections; platting and obtaining government approval for

those platted sections, with specific streets and lots laid out; and causing the streets

and major utilities to be constructed.” (Internal footnote omitted.) During

development, The Woodlands Land Development Company contracted with LJA

7 Before The Woodlands Land Development Company, LJA Engineering, and Bowles filed this summary judgment motion, the trial court granted Howard Hughes’s summary judgment motion, dismissing appellants’ claims against Howard Hughes. But The Woodlands Land Development Company, LJA Engineering, and Bowles noted in their motion that, if Howard Hughes was “still a party [in the suit],” the arguments in their summary judgment motion “would apply to it too.”

16 Engineering “to perform platting and other engineering work in connection with”

Timarron.

The summary judgment motion further explained that during the development

of Timarron, The Woodlands Land Development Company “met all [of] Harris

County[’s] regulatory standards in place at the time, including a requirement that

structures in the 100-year floodplain be built [eighteen] inches above the 100-year

floodplain.” (Emphasis omitted.) The Woodlands Land Development Company

ultimately decided to recommend that third-party builders build their houses in

Timarron “six inches above the flood of record level” from the October 1994 storm.

To determine the “flood of record level,” The Woodlands Land Development

Company hired a third-party engineering firm, IDS Engineering Group, Inc.,

formerly known as Pate Engineers, Inc. (Pate).8 Pate’s flood of record level

determination was then given to LJA Engineering “to set minimum slab elevations

of [six] inches above the 1994 [October storm] flood of record level as determined

by” Pate. It was The Woodlands Land Development Company’s goal to

“recommend minimum slab elevations six inches above the 1994 [October storm]

flood of record,” as determined by Pate, which is exactly what it did.

8 The summary judgment motion noted that appellants’ expert witness agreed that Pate was “a well-recognized good reputation engineering firm,” which was “well-respected” and “d[id] capable quality work.” (Internal quotations omitted.)

17 Appellants, however, alleged that Pate incorrectly determined the flood of

record level, which resulted in the slabs on appellants’ properties not actually being

built six inches above the 1994 October storm flood of record level. And this is what

appellants alleged caused the flooding of their properties.

In their summary judgment motion, The Woodlands Land Development

Company, LJA Engineering, and Bowles also explained that appellants bought their

properties directly from various third-party builders.9 Appellants did not buy their

properties from The Woodlands Land Development Company, The Woodlands

Land Development Company did not have any role in appellants’ transactions with

the builders, appellants had no contracts with The Woodlands Land Development

Company, and appellants admitted that they did not rely on anything that The

Woodlands Land Development Company had said when deciding to purchase their

properties. Further, although The Woodlands Land Development Company

developed Timarron “as a whole, laying out and building streets and major

infrastructure,” The Woodlands Land Development Company “then subdivided and

sold the properties—vacant lots—to the [various third-party] builders.” The

Woodlands Land Development Company did not build any of appellants’ houses.

Instead, the third-party builders “made final decisions on—and had ultimate

9 The summary judgment motion identifies the builders and explains that the builders, and not The Woodlands Land Development Company, LJA Engineering, or Bowles, contracted with appellants to build appellants’ houses.

18 authority over—fill, lot grading, design, and construction, including [the]

construction of the slabs and finished floor elevations” for appellants’ properties. In

short, The Woodlands Land Development Company did not construct the slabs for

appellants’ houses and did not determine “the final lot grading or slab heights for

any of [appellants’] propert[ies].”

As to LJA Engineering and Bowles, the summary judgment motion

additionally explained that neither LJA Engineering nor Bowles was involved in

appellants’ purchases of their properties or with the building of appellants’ homes.

And LJA Engineering and Bowles “did not determine the final lot grading or slab

heights for any [of appellants’] propert[ies].”

According to The Woodlands Land Development Company, LJA

Engineering, and Bowles, they were entitled to summary judgment as a matter of

law on appellants’ negligence, gross negligence, and negligent undertaking claims

because appellants could not establish that The Woodlands Land Development

Company, LJA Engineering, and Bowles owed a duty to appellants for purposes of

appellants’ negligence and gross negligence claims; appellants could not meet the

requirements of imposing “a duty where none exist[ed] for purposes of” appellants’

negligent undertaking claims; and even if a duty existed, The Woodlands Land

Development Company, LJA Engineering, and Bowles did not breach that duty as a

matter of law.

19 More specifically, as to any negligence duty, the summary judgment motion

explained that Texas law had not recognized a duty like the one appellants sought to

impose in this case. And it explained that whether a defendant owed a duty to a

plaintiff “depends on several factors, including risk, foreseeability, and likelihood of

injury weighed against the social utility of the actor’s conduct, the magnitude of the

burden of guarding against injury, and the consequences of placing the burden on

the defendant.” (Internal quotations omitted.) Further, the nature of the relationship

between the plaintiff and the defendant is a significant consideration in determining

the existence of a duty of care.

According to The Woodlands Land Development Company, LJA

Engineering, and Bowles, none of the factors to be considered in determining

whether to impose a new legal duty warranted imposing a duty on them. First, The

Woodlands Land Development Company, LJA Engineering, and Bowles had no

relationship with appellants, and Hurricane Harvey was an unprecedented storm,

which could not be foreseen. Further, the risk of a Hurricane-Harvey-like event was

low, and the probability of injury was low “when balanced against the social utility

of [The Woodlands Land Development Company, LJA Engineering, and Bowles]

complying with existing [regulatory] standards, which [was] what they did.” And

the “magnitude or burden would be great if [The Woodlands Land Development

Company, LJA Engineering, and Bowles] had to undertake ultimate responsibility

20 and authority for construction of slab heights that would guard against unforeseeable

floods (usurping this from the [third-party] builder[s] to whom [the properties were

already sold]).” Additionally, “placing the burden on [The Woodlands Land

Development Company, LJA Engineering, and Bowles] would result in highly

undesirable consequences—namely, forcing [them] to undertake unrealistic and

cost-prohibitive oversight of builders’ construction of slabs.” Thus, there was “no

basis to impose upon [The Woodlands Land Development Company, LJA

Engineering, and Bowles] a duty owed toward downstream purchasers in

negligence.”

The Woodlands Land Development Company, LJA Engineering, and Bowles

argued that they were also entitled to summary judgment as a matter of law on

appellants’ negligent undertaking claims. They asserted that to establish their claims

for negligent undertaking, appellants had to show that The Woodlands Land

Development Company, LJA Engineering, and Bowles

undertook, gratuitously or for consideration, to render services to another that they knew or should have known were necessary for the protection of a third person; [they] failed to exercise reasonable care to perform the undertaking; and [] (a) the failure to exercise reasonable care increase[d] the risk of such harm; (b) [they] undert[ook] to perform a duty owed by the other [sic] to the third person; or (c) the harm [was] suffered because of reliance of the other or the third person upon the undertaking.

(Emphasis omitted.)

21 The Woodlands Land Development Company, LJA Engineering, and Bowles

asserted that to the extent appellants were arguing that The Woodlands Land

Development Company, LJA Engineering, and Bowles undertook, gratuitously or

for consideration, to render services to another that they knew or should have known

were necessary for the protection of a third person “by commissioning a study

regarding flood of record levels (or even that they gave recommendations of

minimum slab elevations based on flood of record levels),” there was no evidence

that they had “undert[aken] to oversee the construction of slab heights or [had]

precluded the [third-party] builders from exceeding any slab height

recommendations.” Rather, it was the builders who were responsible for the slab

heights on appellants’ properties. They argued that even if they owed a duty, at most

their duty would have been to develop the subdivision in a manner that complied

with all regulatory standards which they undisputedly did. And, even if they owed a

duty to exercise reasonable care in their undertaking to determine the flood of record

level and recommend that minimum slab heights be built six inches above it, they

fulfilled this duty as well. They were entitled to rely on Pate’s determination of the

flood of record level, and to the extent appellants argued that The Woodlands Land

Development Company, LJA Engineering, and Bowles should have double checked

or independently assessed the accuracy of Pate’s determination, appellants were

22 arguing for an undertaking that The Woodlands Land Development Company, LJA

Engineering, and Bowles did not undertake.

In their response to the summary judgment motion, appellants argued, as to

their negligence claims, that The Woodlands Land Development Company, as the

developer of Timarron, owed appellants a duty because “a developer owes an

implied warranty to develop its property in a good and workmanlike manner.” As to

their negligent undertaking claims, appellants disputed the assertion that the

undertaking they alleged was commissioning a study regarding flood of record levels

(or giving recommendations of minimum slab elevations based on flood of record

levels). Rather, they argued, The Woodlands Land Development Company

“undertook to ‘insure that [its] residents and businesses w[ould] not be threatened

by flood damage,’” and The Woodlands Land Development Company “undertook

[that] by establishing minimum slab elevations of six (6) inches above the [flood of

record], that builders were required to meet, so that residents would not be threatened

by flood damage from another [flood of record].” According to appellants, The

Woodlands Land Development Company breached that undertaking. In their

response, appellants stated that they would not address their negligence claims

against LJA Engineering because, according to appellants, the summary judgment

motion did not address any alleged negligence by LJA Engineering but rather

focused solely on The Woodlands Land Development Company.

23 Appellants attached numerous exhibits to their summary judgment response.

The Woodlands Land Development Company, LJA Engineering, and Bowles filed

objections to some of those exhibits. The trial court sustained the objections.

In their reply to appellants’ response, The Woodlands Land Development

Company, LJA Engineering, and Bowles asserted that appellants had not directed

the trial court to “a single case holding that a developer owe[d] a duty to downstream

purchasers.” Further, as to appellants’ negligent undertaking claim, The Woodlands

Land Development Company, LJA Engineering, and Bowles asserted that the

undertaking in this case was “to hire a third-party engineering firm . . . to determine

the 1994 flood of record level and then set minimum slab elevations based on the

1994 flood of record as determined by [the third-party engineering firm],” which is

exactly what The Woodlands Land Development Company, LJA Engineering, and

Bowles did. They further argued that any attempt by appellants to redefine what the

undertaking was failed. Finally, noting that appellants stated that they would not be

addressing the negligence of LJA Engineering, LJA Engineering and Bowles

asserted that appellants had waived their arguments as to the propriety of summary

judgment on appellants’ claims against LJA Engineering and Bowles.

24 The trial court granted The Woodlands Land Development Company, LJA

Engineering, and Bowles’s summary judgment on appellants’ negligence, gross

negligence, and negligent undertaking claims.10

Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true

all evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d

at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without

specifying the grounds for granting the motion, we must uphold the trial court’s

judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power,

Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

A party seeking summary judgment may combine in a single motion a request

for summary judgment under the no-evidence standard with a request for summary

10 The Woodlands Land Development Company, LJA Engineering, and Bowles filed additional summary judgment motions on appellants’ negligence, gross negligence, and negligent undertaking claims against them, which raised other arguments as to why they were entitled to summary judgment on appellants’ claims. The trial court also granted those motions for summary judgment. Due to our disposition below, we need not discuss the specifics of the other summary judgment motions or appellants’ arguments as to why the trial court erred in granting those other summary judgment motions. See TEX. R. APP. P. 47.1.

25 judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004).

To prevail on a no-evidence summary judgment motion, the movant must establish

that there is no evidence to support an essential element of the non-movant’s claim

on which the non-movant would have the burden of proof at trial. See TEX. R. CIV.

P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.

2004); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). The burden then shifts to the non-movant to present evidence

raising a genuine issue of material fact as to each of the elements challenged in the

motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321

S.W.3d at 524. A no-evidence summary judgment may not be granted if the

non-movant brings forth more than a scintilla of evidence to raise a genuine issue of

material fact on the challenged elements in the motion. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists

when the evidence “rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997) (internal quotations omitted). The trial court must grant

a no-evidence summary judgment motion if the movant asserts that there is no

evidence of one or more specified elements of the non-movant’s claim on which the

non-movant would have the burden of proof at trial and the non-movant fails to file

a timely response or fails to produce summary judgment evidence raising a genuine

26 issue of material fact on each challenged element. See TEX. R. CIV. P. 166a(i);

Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex. App.—Houston [1st Dist.] 2009,

no pet.).

To prevail on a matter-of-law summary judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900

S.W.2d 339, 341 (Tex. 1995). When a defendant moves for a matter-of-law

summary judgment, it must either: (1) disprove at least one essential element of the

plaintiff’s cause of action, or (2) plead and conclusively establish each essential

element of an affirmative defense, thereby defeating the plaintiff’s cause of action.

See Cathey, 900 S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197

(Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant

to raise a genuine issue of material fact precluding summary judgment. See Siegler,

899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691

(Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue

of fact if reasonable and fair-minded fact finders could differ in their conclusions in

light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

27 Summary Judgment

In their first issue, appellants argue that the trial court erred in granting The

Woodlands Land Development Company summary judgment on appellants’

negligence, gross negligence, and negligent undertaking claims because The

Woodlands Land Development Company did not conclusively establish that it did

not owe appellants a duty or that it did not breach any duty. In their second issue,

they contend that the trial court erred in granting The Woodlands Land Development

Company, LJA Engineering, Bowles, and Howard Hughes summary judgment on

appellants’ negligence, gross negligence, and negligent undertaking claims because

they did not conclusively establish that appellants could not raise a genuine issue of

material fact on causation. In their third issue, appellants argue that the trial court

erred in granting LJA Engineering and Bowles summary judgment on appellants’

negligence, gross negligence, and negligent undertaking claims because LJA

Engineering and Bowles “never offered evidence, argument, or supporting legal

authority to conclusively establish [that] they owed no duty and committed no

breach.” In their fourth issue, appellants argue that the trial court erred in granting

Howard Hughes summary judgment on appellants’ negligence, gross negligence,

and negligent undertaking claims because appellants “offered more than a scintilla

of evidence that Howard Hughes ha[d] some direct responsibility because it stepped

28 out of its role as a parent and participated in [The Woodlands Land Development

Company’s] activities.”

A. The Woodlands Land Development Company

1. Negligence and Gross Negligence Claims

Appellants argue that the trial court erred in granting The Woodlands Land

Development Company summary judgment on their negligence and gross

negligence claims because The Woodlands Land Development Company did not

establish that it did not owe appellants a duty. In their response to appellees’

summary judgment motion on these claims, appellees argued that appellees had not

established their right to summary judgment and that The Woodlands Land

Development Company had a “duty to exercise reasonable care in developing

Timarron, particularly with regard to the flood-mitigation efforts it undertook.”

A negligence cause of action has three elements: (1) a legal duty, (2) breach

of that duty, and (3) damages proximately resulting from the breach. Elephant Ins.

Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); Watanabe v. Summit Path

Partners, LLC, 650 S.W.3d 112, 125 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

The threshold inquiry in a negligence case is whether a duty exists, which “is a

question of law for the court to decide from the facts surrounding the occurrence in

question.” Elephant Ins. Co., 644 S.W.3d at 145 (internal quotations omitted). We

review de novo a determination regarding whether a legal duty is owed. See Black ±

29 Vernooy Architects v. Smith, 346 S.W.3d 877, 882–83 (Tex. App.—Austin 2011,

pet. denied).

The existence of a legal duty by the defendant to the plaintiffs is an essential

element of the plaintiffs’ negligence claims. See United Rentals N. Am., Inc. v.

Evans, 668 S.W.3d 627, 638 (Tex. 2023). If the defendant has no duty, then it cannot

be held liable for negligence. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet,

Inc., 302 S.W.3d 515, 529 (Tex. App.—Austin 2009, no pet.). To determine whether

a particular defendant owed a negligence duty to a particular plaintiff, courts first

look at whether they have previously held that a duty does or does not exist under

the same or similar circumstances. Houston Area Safety Council, Inc. v. Mendez,

671 S.W.3d 580, 582–83 (Tex. 2023). Generally, Texas law imposes no duty to take

action to prevent harm to others absent certain special relationships or

circumstances. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000);

Garcia v. Kellogg Brown & Root Servs., Inc., No. 01-19-00319-CV, 2020 WL

3820426, at *6 (Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.).

Special relationships include those existing between an employer and an employee,

a parent and a child, and an independent contractor and a contractee. Greater Hous.

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

In their response to The Woodlands Land Development Company’s summary

judgment motion, appellants asserted that Texas case law had already implicitly

30 recognized a negligence duty owed by developers in cases like this one, relying on

the Texas Supreme Court’s opinion in Parkway Co. v. Woodruff, 901 S.W.2d 434

(Tex. 1995).11 However, in Parkway, issues of negligence and duty were not before

the court. Instead, the supreme court was asked to decide whether “a real estate

development company [had] violated the [DTPA],” after the development company

built a wall that diverted water onto the plaintiffs’ property, which resulted in flood

damage to the plaintiffs’ home, and the plaintiffs had informed the development

company of the flooding issues before the wall was built. Parkway, 901 S.W.2d at

436–37. Although the plaintiffs in Parkway did sue the development company for

negligence in addition to violations of the DTPA, the development company did not

challenge on appeal the jury’s finding of negligence, or the negligence damages

awarded to the plaintiffs. See id. at 436. In short, the Texas Supreme Court was not

asked to determine whether the development company owed a negligence duty to

the plaintiffs in that case,12 and we will not conclude that any of the language used

by the supreme court in Parkway implicitly created a new negligence duty owed by

11 In their summary judgment response, appellants primarily focused on the court of appeals’s opinion, rather than the Texas Supreme Court’s ultimate opinion in the case. See generally 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). 12 Likewise, this Court, at the intermediate appellate level, was also not asked to determine in Parkway whether the development company owed a negligence duty to the plaintiffs; issues of negligence and duty were not before this Court either. See Parkway, 857 S.W.2d at 917 (noting development company did not challenge jury’s negligence finding on appeal).

31 developers.13 See Elephant Ins. Co., 644 S.W.3d at 145 (“Texas law requires the

court . . . to balance the relevant factors in determining the existence, scope, and

elements of legal duties.” (internal quotations omitted)); In re Luminant Generation

Co., 711 S.W.3d 13, 24 (Tex. App.—Houston [1st Dist.] Dec. 14, 2023, orig.

proceeding) (in determining “whether to impose a duty,” courts must “be specific in

determining the existence, scope, and elements of any new legal duties”).

“When a duty has not [already] been recognized in particular circumstances,

the [next] question is whether one should be.” Elephant Ins. Co., 644 S.W.3d at 145

(alteration in original) (internal quotations omitted). Generally, intermediate

appellate courts should be reluctant to recognize a new common-law duty that has

no existence in established law. See J.P. Morgan Chase Bank, 302 S.W.3d at 535;

see, e.g., In re Luminant Generation, 2023 WL 8630982, at *10 & n.16 (declining

invitation to impose new duty); see also See Black ± Vernooy Architects, 346 S.W.3d

at 881 (“The creation of a new common-law duty is a task better suited for the

supreme court, not intermediate appellate courts[.]”).

To determine whether a duty should be recognized, courts weigh the risk

involved, the foreseeability of the risk, and the likelihood of injury against the social

utility of the actor’s conduct, the magnitude of the burden of guarding against the

13 Appellants, in their briefing, have not cited any other opinion recognizing the purported negligence duty they now ask this Court to recognize.

32 injury, and the consequences of placing the burden on the defendant (the “Phillips

factors”). See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503–04 (Tex. 2017);

Phillips, 801 S.W.2d at 525. We may also consider whether one party had superior

knowledge of the risk or the right to control the actor who caused the harm. See

Elephant Ins. Co., 644 S.W.3d at 145. Foreseeability of the risk is essential and the

most important factor to consider, but foreseeability alone does not create a

negligence duty. See City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009)

(stating that foreseeability of risk is foremost and dominant factor, but alone is not

sufficient to justify imposition of duty); Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d

30, 36 (Tex. 2002) (“Before imposing a duty of care, . . . the risk of harm must be

foreseeable.”). In their response to appellees’ summary judgment motion, appellants

did not address directly the question of whether the trial court should recognize a

new common-law duty, but did argue that appellees had not established their right

to summary judgment as a matter of law. We disagree. In their motion, appellees

established, to the extent reasonably possible, that there is no recognized duty that a

developer owes under the circumstances at issue. That showing alone supports the

trial court’s summary judgment—particularly given appellants’ claim that such a

duty has already been recognized rests entirely on the Parkway decision, in which

the issue was not addressed. See Thapar v. Zezulka, 994 S.W.2d 635, 638-40 (Tex.

1999) (affirming summary judgment against plaintiff on negligence claim because

33 “we have never recognized the only underlying duty upon which such a cause of

action could be based”); Obialo v. N. Healthcare Land Ventures, Ltd., No. 01-17-

00317-CV, 2018 WL 3233575, at *7 (Tex. App.—Houston [1st Dist.] July 3, 2018,

no pet.) (mem. op.) (affirming traditional and no-evidence summary judgment

against plaintiff on his negligence claim based on nonexistence of alleged duty,

noting that “[t]he nonexistence of a duty ends the inquiry into whether negligence

liability may be imposed” (quoting Van Horn v. Chambers, 970 S.W.2d 542, 544

(Tex. 1998))).

Appellees argued further that the trial court should not recognize a new

common-law duty owed by a developer to downstream purchasers for reasons

including: (1) there is no contractual or other relationship between appellants and

appellees, (2) other jurisdictions have rejected such a duty,14 (3) the probability of

injury is low given appellees’ compliance with existing regulatory standards,

(4) recognizing such a duty would place a heavy burden on appellees, and

(5) recognizing such a duty would have negative consequences.

Appellants argue in this Court that they attached to their response to appellees’

summary judgment motion, or incorporated by reference, evidence that the flooding

of their homes was foreseeable, including because it was foreseeable that home

14 Appellees cited Marnatti v. Horne Eng’g Inc., No. 2011-CA-001910-MR, 2014 WL 1356629, at *3 (Ky. App. Apr. 4, 2014), and Jones v. Whitt, 676 So. 2d 313, 314- 16 (Ala. Civ. App. 1995).

34 builders would build in accordance with the minimum slab criteria set by appellees.

They argue that such evidence, “at a minimum, created a fact issue on foreseeability

that precluded summary judgment on the element of duty.” However, even if a fact

issue did exist as to whether the risk was foreseeable, foreseeability alone does not

create a negligence duty. Kirwan, 298 S.W.3d at 624. In other words, foreseeability

is a necessary but not sufficient basis on which to recognize a new common-law

duty. Thus, even if we were inclined to recognize at the intermediate appellate stage

a new common-law duty that has no existence in established law,15 we could not do

so based solely on evidence that the flooding of appellants’ homes was foreseeable.

2. Negligent Undertaking Claims

Appellants argue that the trial court erred in granting The Woodlands Land

Development Company summary judgment on their negligent undertaking claim

because appellants “established a genuine dispute of material fact concerning duty

and breach.”

One who voluntarily undertakes an affirmative course of action for the benefit

of another has a duty to exercise reasonable care that the other’s person or property

15 See J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 535 (Tex. App.—Austin 2009, no pet.) (noting that intermediate appellate courts should generally be reluctant to recognize new common-law duty); Black ± Vernooy Architects v. Smith, 346 S.W.3d 877, 881 (Tex. App.—Austin 2011, pet. denied) (noting that creation of new common-law duty is task better suited for supreme court).

35 will not be injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d

116, 119–20 (Tex. 1976). To establish a “negligent undertaking,” the plaintiffs must

show that: (1) the defendant undertook to perform services that it knew or should

have known were necessary for the plaintiffs’ protection, (2) the defendant failed to

exercise reasonable care in performing those services, and (3) either (a) the plaintiffs

suffered harm because of their reliance on the defendant’s performance or (b) the

defendant’s performance increased the plaintiffs’ risk of harm. Nall v. Plunkett, 404

S.W.3d 552, 555–56 (Tex. 2013).

a. Evidentiary Rulings

As a preliminary matter, we address appellants’ sub-issue asserting that the

trial court abused its discretion in excluding Exhibits 11, 12 and 21, which they

contend are relevant to their negligent undertaking claim.

We review a trial court’s exclusion of evidence for an abuse of discretion. JLG

Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner or without reference to

guiding rules and principles. State v. Gleannloch Comm. Dev., LP, 585 S.W.3d 509,

524 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing Bowie Mem’l Hosp.

v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)). We will affirm an evidentiary ruling that

is supported by any legitimate ground, even if the ground was not raised in the trial

court. Id. We will not reverse a trial court for an erroneous evidentiary ruling unless

36 the error “probably caused the rendition of an improper judgment or prevented a

proper presentation of the appeal.” TEX. R. APP. P. 44.1(a); Sw. Elec. Power Co. v.

Burlington N. R.R. Co., 966 S.W.2d 467, 474 (Tex. 1998).

Exhibits 11 and 12 are the sales contract between The Woodlands Land

Development Company and the builders (Exhibit 12) and an attachment to the

contract, “Development Criteria” (Exhibit 11). The Woodlands Land Development

Company objected to both exhibits, which span more than a thousand pages

collectively, on the grounds that appellants provided no specific guidance as to

where the evidence could be found. It also objected to Exhibit 11 on the grounds that

it constituted inadmissible hearsay and misrepresented testimony/evidence. The trial

court sustained the objections without specifying the basis for its ruling and excluded

the exhibits.

We conclude that any error in excluding Exibits 11 and 12 was harmless. In

their summary judgment response, appellants cited Exhibits 11 and 12 as evidence

showing that The Woodlands Land and Development Company “prescribed much

of how its builders would construct these homes,” including “absolute minimum slab

elevations,” that “Defendants established these minimum heights, which were

inadequate and failed to meet Defendants’ standard, policy, and criteria,” and that

the slab heights “were not merely recommended to the Builders, they were imposed

upon them as Development Criteria.” As discussed below, in his expert report and

37 deposition, Bedient stated that The Woodlands Land Development Company

submitted the development criteria to the builders, which included minimum slab

elevations, and that those elevations were lower than the standard set by The

Woodlands Land Development Company for such slabs. Exhibits 11 and 12 were

merely cumulative of that evidence. See Bartosh v. Gulf Health Care Center-

Galveston, 178 S.W.3d 434, 439 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(“To establish harm (i.e., that the error was reasonably calculated to cause and

probably did cause rendition of an improper judgment), the appellant must

demonstrate that the excluded evidence was both controlling on a material issue and

not cumulative of other evidence.” (citing Williams Distrib. Co. v. Franklin, 898

S.W.2d 816, 817 (Tex. 1995))).

The Woodlands Land Development Company also objected to the admission

of Exhibit 21 as summary judgment evidence on the grounds that appellants failed

to file the exhibit or attach the document to their summary judgment response

“within seven days of the hearing.”16 Exhibit 21 is a February 14, 2013 email17 from

Fred LeBlanc of The Woodlands Development Company to Calleen McFerren, a

manager with The Woodlands Homefinder Center, explaining what is meant by

16 The objection misstates Rule 166a(c), which provides, in part, that “[e]xcept 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.” TEX. R. CIV. P 166a(c). (Emphasis added). 17 The evidence is an exhibit to Welbes’s deposition.

38 “flood of record.” The email states that “as a result of this flood, [The Woodlands

Land Development Company] developed a policy to designate the minimum slab

elevations to be 0.5 feet above” it and that LeBlanc would consult with others about

“how this information should be conveyed to customers.” The trial court sustained

the objections to the exhibit.

Appellants assert that The Woodlands Land Development Company’s

objection to Exhibit 21 as “untimely” is unfounded. Appellants argue that they filed

and served a letter, i.e., notice, which specifically identified Exhibit 21 (and all

exhibits) and included a copy of those documents at the embedded link in the letter

thereby complying with Texas Rule of Civil Procedure 166a(d). 18 Appellants also

contend that The Woodlands Land Development Company improperly based their

objections to Exhibit 21 on Rule 166a(c), which requires “any supporting affidavits”

to be filed “within seven days of the summary-judgment hearing.”19 They argue that

18 Texas Rule of Civil Procedure 166a(d) provides: (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. TEX. R. CIV. P. 166a(d). (Emphasis added). 19 As previously noted, Texas Rule of Civil Procedure 166a(c) states that “[e]xcept on leave of court, the adverse party, not later than seven days prior to the day of hearing 39 Exhibit 21 is not a “supporting affidavit” but, rather, a “discovery product” which is

governed by Rule 166a(d) not Rule 166a(c).20

The record shows that The Woodlands Land Development Company objected

to Exhibit 21 as “not on file” and “untimely.” It asserted that appellants failed to file

the exhibit or attach it to their summary judgment response at least seven days before

the hearing as required by Rule 166a(c). They also argued that appellants failed to

include Exhibit 21 on the flash drive delivered to The Woodlands Land Development

Company and the trial court on the date their response was due, and they did not

obtain leave of court to “forward another flash drive with this exhibit and others to

the trial court and defense counsel the day after the deadline.” Citing Rule 166a(d),

The Woodlands Land Development Company asserted that this evidence could not

be used to oppose summary judgment.

Assuming without deciding that Exhibit 21 was improperly excluded, the trial

court’s evidentiary ruling was not harmful and does not warrant reversal for the

reasons discussed below. See JLG Trucking, 466 S.W.3d at 161 (stating plaintiff

may file and serve opposing affidavits or other written response.” TEX. R. CIV. P 166a(c). (Emphasis added). 20 Rule 166a(c) provides, in part, that “[e]xcept 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.” TEX. R. CIV. P 166a(c).

40 must establish that trial court abused its discretion in sustaining objections to

evidence and that evidence would have made difference).

b. Breach

We need not resolve the parties’ dispute regarding whether appellants raised

a genuine issue of material fact as to whether The Woodlands Land Development

Company owed appellants a duty under an undertaking theory because appellants

failed to raise a genuine issue of material fact as to whether The Wooldands Land

Development Company breached any such duty. To succeed on a negligent

undertaking claim, a plaintiff must show that the defendant failed to exercise

reasonable care in performing the services it undertook. See Nall, 404 S.W.3d at

555–56. That is, one who voluntarily undertakes an affirmative course of action for

the benefit of another has a duty to exercise reasonable care that the other’s person

or property will not be injured by the undertaking. Fort Bend Cty. Drainage Dist. v.

Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991) (quoting Taylor, 544 S.W.2d at 119–20).

Appellants alleged in their seventh amended petition that “Defendants failed

to exercise reasonable care in dictating these slab elevations by failing to check the

elevations against historical flood data in its possession of which it knew or should

have known [] and by failing to monitor or oversee that home builders actually built

to the specified locations.”

41 In its summary judgment motion, The Woodlands Land Development

Company asserted that even if it owed a duty to appellants, it would have been to

develop the subdivision in a manner that met all regulatory standards. The

Woodlands Land Development Company argued that it not only complied with all

applicable regulatory standards but, in fact, exceeded all of the requirements, and

did not breach any duty of care. Further, in the event it owed a duty to use reasonable

care in its undertaking to determine the flood of record level and recommend that

minimum slab heights be built six inches above it, it fulfilled that duty.

In their summary judgment response, appellants argued that The Woodlands

Land Development Company’s assertion that it fulfilled its duty to exercise

reasonable care in its undertaking because it complied with applicable regulatory

standards is determinative only if the standard of care is simple compliance with

those standards, and not the undertaking alleged by appellants. Appellants point to

the declaration of Randy Birdwell stating that regulatory standards are frequently

exceeded and must be exceeded when it is clear that those standards are inadequate.

In its summary judgment reply, The Woodlands Land Development Company

asserted that its undertaking involved commissioning a reputable third-party

engineering firm to determine the flood of record level and, at most, following the

determination, and that they did not breach any standard of care in doing so.

42 Appellants contend on appeal that they have established a genuine dispute of

material fact regarding breach. They assert that The Woodlands Land Development

Company’s argument that it did not undertake to determine the flood of record in

any way other than hiring Pate is disputed by the evidence. Specifically, after the

flood of record, The Woodlands Land Development Company collected its own

high-water marks along Spring Creek in the Woodlands. It used those high-water

marks—which showed that the flood of record was above the 500-year flood level—

to create its own map of the flood of record levels. However, according to appellants,

Pate’s modeled estimates conflicted with The Woodlands Land Development

Company’s own data and demonstrated an error in Pate’s work.21 Appellants argue

that The Woodlands Land Development Company “had actual knowledge that the

modeled flood estimate Pate provided was incorrect [but] then did nothing to prevent

Pate’s flawed estimates from being used in the Timarron development.”

In his expert report, Bedient stated that The Woodlands Land Development

Company “requested one of its engineers (Pate Engineers) to provide the 1994 Flood

of Record elevations along Spring Creek in the vicinity of the Timarron

21 Citing Bedient’s expert report, appellants point to an example showing where the high-water marks that The Woodlands Land Development Company obtained north of the Kuykendahl Road bridge were 142.5 feet after the flood of record. Those high-water marks showed the flood of record was above the 500-year flood level. But when Pate completed its modeled estimate of the flood of record, the estimate at this specific location was only 141 feet, which was below both the flood of record high-water mark and the 500-year flood level.

43 development, west of Kuykendahl Road.” Pate submitted its proposal “to provide

such information by using the HCFCD [Harris County Flood Control District]

hydraulic model of Spring Creek developed as part of its TSARP [Tropical Storm

Allison Recovery Project] effort,” and The Woodlands Land Development Company

approved the proposal. Pate prepared a “1994 Flood of Record Delineation” map

which it submitted to The Woodlands Land Development Company in March 2006.

The Woodlands Land Development Company then provided the map to LJA

Engineering and “instructed them to set minimum slab elevations at least 6 inches

above the 1994 Flood of Record in preparing the design plans for various sections

of Timarron.” This evidence shows that The Woodlands Land Development

Company undertook to establish minimum slab elevations six inches above the flood

of record based on Pate’s determination, and it fulfilled the undertaking. Appellants

presented no evidence showing that The Woodlands Land Development Company’s

undertaking included an independent assessment of Pate’s determination. Indeed,

had it done so, it would ostensibly have had no reason to hire Pate to provide the

flood of record elevations. And, contrary to appellants’ assertion, there is no

evidence showing that The Woodlands Land Development Company hired Pate to

“supplement the observed data” it had. Rather, the evidence shows that The

Woodlands Land Development Company hired Pate to provide the flood of record

levels based on the approved modeling and not to supplement any data.

44 Bedient testified that Pate is a “a well-recognized good reputation engineering

firm” that does “capable, quality work,” and that Pate’s reliance on the TSARP

model in determining the flood of record was reasonable. He testified that The

Woodlands Land Development Company “exceeded all of the regulatory

requirements” established by the [HCFCD] . . . [b]y several feet in every instance,”

and that he had never seen a master-planned community with higher standards than

The Woodlands Land Development Company. Appellants did not present any

evidence raising a genuine issue of material fact as to whether The Woodlands Land

Development Company exercised reasonable care in performing what it undertook

to accomplish. See Nall, 404 S.W.3d at 555–56. As such, the trial court did not err

in granting summary judgment to The Woodlands Land Development Company on

appellants’ negligent undertaking claim.22 We overrule appellants’ first issue.

22 Appellants assert that Exhibit 21 is critical for two reasons: (1) it is a written acknowledgement that The Woodlands Land Development Company undertook to create and adopt a policy to increase minimum slab elevations, and (2) it reflects The Woodlands Land Development Company’s intent to communicate that policy to customers. As noted above, even if the trial court erred in excluding the exhibit, the trial court’s ruling was not harmful. First, in light of our conclusion that there was evidence, namely Bedient’s testimony, showing that The Woodlands Land Development Company undertook to establish minimum slab elevations six inches above the flood of record, Exhibit 21 is merely cumulative of that evidence. Bartosh v. Gulf Health Care Center-Galveston, 178 S.W.3d 434, 439 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“To establish harm (i.e., that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment), the appellant must demonstrate that the excluded evidence was both controlling on a material issue and not cumulative of other evidence.”) (citing Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995)). Second, because we conclude that appellants did not present evidence raising a material fact issue on breach, we do 45 Having done so, we also overrule the portion of appellants’ second issue regarding

causation as it pertains to The Woodlands Land Development Company.

B. LJA Engineering and Bowles

In their third issue, appellants argue that the trial court erred in granting LJA

Engineering and Bowles summary judgment on appellants’ negligence and gross

negligence claims because LJA Engineering and Bowles “did not meet their

traditional summary judgment burden on duty or breach.”23

In their motion for summary judgment, LJA Engineering and Bowles asserted

that they were entitled to summary judgment as a matter of law on appellants’

negligence-based claims because there was no duty or breach. In the motion, LJA

Engineering and Bowles explained that appellants were homeowners in Timarron, a

subdivision that flooded during Hurricane Harvey. The Woodlands Land

not reach the issue of reliance (i.e., whether appellants knew of The Woodlands Land Development Company’s policy and relied on it to their detriment). 23 Although appellants’ briefing argues that the trial court erred in granting The Woodlands Land Development Company’s summary judgment motion on appellants’ negligent undertaking claims against it, appellants’ briefing does not argue that the trial court erred in granting LJA Engineering and Bowles summary judgment on appellants’ negligent undertaking claims against them. Instead, the argument portion of appellant’s opening brief related to their third issue solely focuses on whether the trial court erred in granting summary judgment on appellants’ negligence and gross negligence claims against LJA Engineering and Bowles, asserting that LJA Engineering and Bowles did not establish as a matter of law that they had no negligence duty to appellants or that they did not breach any duty owed to appellants. Thus, we hold that appellants have waived any challenge to the trial court’s summary judgment ruling as to appellants’ negligent undertaking claims against LJA Engineering and Bowles. See TEX. R. APP. P. 38.1(i).

46 Development Company “began the process of developing” Timarron by “taking

large tracks of raw land” and “dividing them into smaller (but still large) areas, called

sections; platting and obtaining government approval for those platted sections, with

specific streets and lots laid out; and causing the streets and major utilities to be

constructed.” (Internal footnote omitted.) During development, The Woodlands

Land Development Company contracted with LJA Engineering “to perform platting

and other engineering work in connection with” Timarron.

LJA Engineering and Bowles further explained that after the development of

Timarron, appellants bought their properties directly from various third-party

builders. Neither LJA Engineering nor Bowles was involved in appellants’

purchases of their properties or with the building of appellants’ homes. And LJA

Engineering and Bowles “did not determine the final lot grading or slab heights for

any [of appellants’] propert[ies].”

According to LJA Engineering and Bowles, they were entitled to summary

judgment as a matter of law on appellants’ negligence and gross negligence claims

against them because appellants could not establish that LJA Engineering and

Bowles owed a duty to appellants, and even if a duty existed, LJA Engineering and

Bowles did not breach that duty.

More specifically, as to any negligence duty, the summary judgment motion

explained that whether a defendant owes a duty to a plaintiff “depends on several

47 factors, including risk, foreseeability, and likelihood of injury weighed against the

social utility of the actor’s conduct, the magnitude of the burden of guarding against

injury, and the consequences of placing the burden on the defendant.” (Internal

quotations omitted.) Further, the nature of the relationship between the plaintiff and

the defendant is a significant consideration in determining the existence of a duty of

care. In making such a statement, LJA Engineering and Bowles cited to Hartman v.

Urban, 946 S.W.2d 546 (Tex. App.—Corpus Christi–Edinburg 1997, no writ), for

the proposition that “an engineer who prepared [an] erroneous plat for [a] developer

did not owe a duty to [the] subsequent purchaser given [the] lack of [a] relationship

with [the] subsequent purchaser, even though it was foreseeable that [the] purchaser

would rely on [the] plat.”

Additionally, in their summary judgment motion, LJA Engineering and

Bowles argued that none of the aforementioned Phillips factors, which were to be

considered in determining whether to impose a new legal duty on LJA Engineering

and Bowles, warranted imposing a duty on them. First, LJA Engineering, and

Bowles had no relationship with appellants, and Hurricane Harvey was an

unprecedented storm, which could not have been foreseen. Further, the risk of a

Hurricane-Harvey-like event was low, and the probability of injury was low “when

balanced against the social utility of [LJA Engineering and Bowles] complying with

existing [regulatory] standards, which [was] what they did.” And the “magnitude or

48 burden would be great if [LJA Engineering and Bowles] had to undertake ultimate

responsibility and authority for construction of slab heights that would guard against

unforeseeable floods (usurping this from the [third-party] builder[s] to whom [the

properties were already sold]).” Additionally, “placing the burden on [LJA

Engineering and Bowles] would result in highly undesirable consequences—

namely, forcing [them] to undertake unrealistic and cost-prohibitive oversight of

builders’ construction of slabs.” Thus, there was “no basis to impose upon [LJA

Engineering and Bowles] a duty owed toward downstream purchasers in

negligence.”

In their response to the summary judgment motion, appellants stated that they

would not address any arguments by LJA Engineering and Bowles as to why they

were entitled to summary judgment on appellants’ negligence and gross negligence

claims because, in appellants’ opinion, the motion for summary judgment “d[id] not

address any negligence by” LJA Engineering and Bowles.24

“To preserve an argument against the granting of a motion for summary

judgment for appellate review, the non-movant must expressly present that argument

to the trial court within its written response to the motion.” Herron v. D & S Cmty.

24 Instead, appellants, in their response, addressed only their negligence and gross negligence claims against The Woodlands Land Development Company, arguing that The Woodlands Land Development Company was not entitled to summary judgment as a matter of law on those claims.

49 Servs., No. 06-17-00015-CV, 2017 WL 3430904, at *2 (Tex. App.—Texarkana

Aug. 10, 2017, no pet.) (mem. op.); see also TEX. R. CIV. P. 166a(c); Robin Singh

Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 98 (Tex. App.—

Houston [14th Dist.] 2011, no pet.). Here, appellants did not respond to any

arguments made by LJA Engineering and Bowles in their motion for summary

judgment. When the non-movants fail to respond to a matter-of-law summary

judgment motion, they may only challenge whether the movants met their initial

burden of proof. See Polecat Hill, LLC v. City of Longview, 648 S.W.3d 315, 333

(Tex. App.—Texarkana 2021, no pet.).

In their briefing, appellants summarily state that LJA Engineering and

Bowles, in their summary judgment motion, did not “articulate arguments about how

[they] lacked a duty as a matter of law” and that LJA Engineering and Bowles’s

“discussion of case law supporting [their] ‘no duty’ argument solely focused on

whether a developer owes a duty; there was no discussion of case law addressing

engineers.” (Emphasis omitted.) To the extent that appellants’ statements in their

briefing can be construed as an argument that LJA Engineering and Bowles did not

meet their initial burden of establishing their entitlement to summary judgment

because they failed to establish that they owed no duty to appellants as a matter of

50 law, we conclude that the argument is waived due to inadequate briefing.25 See TEX.

R. APP. P. 38.1(i); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893,

895 (Tex. App.—Dallas 2010, no pet.) (“Only when we are provided with proper

briefing may we discharge our responsibility to review the appeal and make a

decision that disposes of the appeal one way or the other.”).

We overrule appellants’ third issue. Having done so, we also overrule the

portion of appellants’ second issue regarding causation as it pertains to LJA

Engineering and Bowles.

C. Howard Hughes

In their fourth issue, appellants argue that the trial court erred in granting

Howard Hughes summary judgment as a matter of law on appellants’ negligence,

gross negligence, and negligent undertaking claims because appellants “established

25 “An appellate brief is meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.” Schied v. Merritt, No. 01-15-00466-CV, 2016 WL 3751619, at *2 (Tex. App.—Houston [1st Dist.] July 12, 2016, no pet.) (mem. op.) (internal quotations omitted). And Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (appellant bears burden of discussing his assertions of error). The failure to provide substantive analysis of an issue or cite appropriate authority waives a complaint on appeal. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).

51 a genuine issue of fact on the [direct] liability” of Howard Hughes. Appellants assert

that Howard Hughes “was not a mere silent owner of [The Woodlands Land

Development Company],” but rather a direct participant in The Woodlands Land

Development Company’s activities.

In the trial court, Howard Hughes filed a combined no-evidence and

matter-of-law motion for summary judgment. In the no-evidence portion of Howard

Hughes’s summary judgment motion, it asserted that appellants could not establish

the elements of their negligence, gross negligence, and negligent undertaking claims,

including duty, breach, and causation, against Howard Hughes. And Howard Hughes

requested that the trial court grant its no-evidence summary judgment motion, in

addition to its matter-of-law summary judgment motion.

The trial court then signed an order granting Howard Hughes’s “Traditional

and No-Evidence Motion for Summary Judgment,” finding not only that Howard

Hughes was entitled to summary judgment “under traditional summary judgment

standards,” but also that “an adequate time for discovery ha[d] passed and there

[was] no evidence to support [appellants’ negligence, gross negligence, and

negligent undertaking claims] against [Howard Hughes].” Thus, the trial court also

found that Howard Hughes was “entitled to summary judgment under no-evidence

summary judgment standards.”

52 On appeal, appellants do not address the merits of Howard Hughes’s

no-evidence summary judgment motion.26 Instead, appellants focus solely on the

argument that Howard Hughes made in the matter-of-law summary judgment

motion, namely that it was entitled to judgment as a matter of law on appellants’

negligence, gross negligence, and negligent undertaking claims against it because it

was not involved in the development of Timarron, either directly or indirectly;

instead, it acquired an ownership interest in The Woodlands Land Development

Company after Timarron was platted and was simply the parent company of The

Woodlands Land Development Company at the time appellants filed suit. Because

appellants have not challenged the merits of Howard Hughes’s no-evidence

summary judgment motion—that no evidence exists to support the elements of duty,

breach, and causation—we must affirm the trial court’s grant of summary judgment

on appellants’ negligence, gross negligence, and negligent undertaking claims in

26 We note that, in the “Issues Presented” section of appellants’ opening brief, appellants mention Howard Hughes’s no-evidence motion for summary judgment, listing their fourth issue as follows: “[W]as Howard Hughes entitled to traditional and no-evidence summary judgment on [appellants’] direct-liability theory when [appellants] offered evidence of Howard Hughes’s participation in the [Woodlands Land Development Company’s] activities and that Howard Hughes knew of the [Woodlands Land Development Company’s] negligently implemented policy?” (Emphasis added.) But in the argument portion of appellants’ brief, appellants do not address Howard Hughes’s summary judgment argument that no evidence established the elements of appellants’ negligence, gross negligence, and negligent undertaking claims. See TEX. R. APP. P. 38.1(i); see also Buggelli v. Feltis, No. 14-07-00027-CV, 2008 WL 4308333, at *2 (Tex. App.—Houston [14th Dist.] Aug. 28, 2008, no pet.) (mem. op.) (issues presented are waived when they are not supported by arguments in brief).

53 favor of Howard Hughes. See, e.g., Hudson v. Mem’l Hosp. Sys., No.

01-19-00300-CV, 2021 WL 1414283, at *9 (Tex. App.—Houston [1st Dist.] Apr.

15, 2021, no pet.) (mem. op.) (affirming summary judgment where defendant filed

combined no-evidence and matter-of-law summary judgment motion, but plaintiff,

on appeal, did not challenge trial court’s granting of no-evidence summary judgment

on her claim); Little v. Delta Steel, Inc., 409 S.W.3d 704, 722 (Tex. App.—Fort

Worth 2013, no pet.) (affirming no-evidence summary judgment as to gross

negligence claim when appellant did not challenge merits of motion on that claim

on appeal); Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-00906-CV, 2007 WL

3293719, at *5 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.)

(affirming no-evidence summary judgment on premises-liability claim because, in

trial court, movant asserted no evidence was produced by non-movant on each

element of claim, but, on appeal, non-movant did not address two grounds); see also

Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of

summary judgment without properly assigned error).

We overrule appellants’ fourth issue. Having done so, we also overrule the

portion of appellants’ second issue regarding causation as it pertains to Howard

Hughes.27

27 To the extent that appellants made additional arguments in their briefing, due to our disposition, we do not address them. See TEX. R. APP. P. 47.1.

54 Conclusion

We affirm the judgment of the trial court. Appellants’ February 10, 2025

Unopposed Motion to Exceed Word Limit for Motion for Panel Rehearing and Rehearing

En Banc is granted. Any other pending motions are denied as moot.

Amparo “Amy” Guerra Justice

Panel consists of Justices Guerra, Gunn, and Morgan.28

28 The Honorable Sarah Beth Landau and the Honorable Julie Countiss, former Justices of this Court, were members of the Panel when the case was submitted and participated in this Court’s decision in its superseded November 26, 2024 opinion and judgment. Their terms of office expired on December 31, 2024, and they did not participate in this decision. 55