ACCEPTED 01-14-00702-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/14/2015 8:58:54 AM CHRISTOPHER PRINE CLERK
01-14-0702-CV
IN THE FIRST COURT OF APPEALS FOR TEXAS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS Lynette Starr, 1/14/2015 8:58:54 AM Appellant, CHRISTOPHER A. PRINE Clerk
V.
A.J. Struss & Co. Appellee.
ON APPEAL FROM 149 TH DISTRICT COURT BRAZORIA COUNTY, TEXAS CAUSE NO. 57875
BRIEF OF APPELLEE
ORAL ARGUMENT REQUESTED
Wade R. Quinn TBA No. 16433600 Lance Olinde, Jr. TBA No. 15254215 Ramey, Chandler, Quinn & Zito, P.C. 750 Bering Drive, Suite 600 Houston, Texas 77057 713-266-0074 Fax: 713-266-1064 wquinn@ramey-chandler.com lolinde tramey-chandler.com Attorneys for Appellee, A. J. Struss Company LLC IDENTITY OF PARTIES AND COUNSEL:
APPELLANT: Lynette Starr
Savannah Robinson 1822 Main Danbury, TX 77534 Trial and Appellate counsel for Appellant
APPELLEE: A. J. Struss Company, LLC
Wade R. Quinn Lance Olinde Ramey Chandler, Quinn & Zito, PC 750 Bering Dr., Suite 600 Houston, TX 77057 Trial and Appellate counsel for Appellee
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... ii
TABLE OF CONTENTS .......................................................................................
INDEX OF AUTHORITIES ...................................................................................
STATEMENT OF THE NATURE OF THE CASE ............................................ viii
STATEMENT REGARDING THE RECORD ...................................................... ix
ISSUES ON APPEAL ............................................................................................
STATEMENT OF FACTS ...................................................................................... 1
I. PROCEDURAL HISTORY ..................................................................... 1
A. PLAINTIFF FILED HER LAWSUIT ................................................ 1
B. THE RAY STARR AFFIDAVIT ....................................................... 2
C. PLAINTIFF FILED LAST PETITION .............................................. 2
II. SUMMARY JUDGMENT PROCEEDINGS .......................................... 3
A. THE MOTION FOR SUMMARY JUDGMENT ON THE STANDING ISSUE ............................................................................ 3
B. THE NO EVIDENCE MOTION FOR SUMMARY JUDGMENT .... 4
C. JUDGE HOLDER GRANTED SUMMARY JUDGMENT ON ALL OF PLAINTIFF'S CLAIMS ............................................................... 4
SUMMARY OF ARGUMENT ............................................................................... 4 ARGUMENT ........................................................................................................... 5
STANDARD OF REVIEW ..................................................................................... 5
A. THE STANDING ISSUE. ................................................................................ 6
ISSUE I: Did Plaintiff lack standing to pursue claims for damage to her parents' home when she did not own it? .......................................................... 6
B. NO EVIDENCE GROUNDS .......................................................................... 10
ISSUE II. Did the trial court properly grant the no-evidence motion for summary judgment as to her claims for personal injury damages? .................. 10
CONCLUSION AND PRAYER ........................................................................... 15
CERTIFICATE OF SERVICE .............................................................................. 16
CERTIFICATION ................................................................................................. 17
iv INDEX OF AUTHORITIES
Cases th Bell v. Moores, 832 S.W.2d 749, 754 (Tex. App.-Houston [14 Dist] 1992, writ denied) ........................................................................................................................... 7
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 559 (Tex. 2000) ............................. 6
Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) ................................... 13
Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 201) ........................................................... 6
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995) ............. 12
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996) .................. 6
City of Houston v. Guthrie, 332 S.W.3d 578, 588 (Tex. App.-Houston [1 Dist.] 2009, pet denied) ........................................................................................................... 8
Exxon Corp. v. Emerald Oil & Gas, Co., L. C., 331 S.W.3d 414, 424 (Tex. 2010) . 7
Exxon Pipeline Co. v. Zwahr, 8 S.W.3d 623, 628 (Tex. 2002) ................................ 12
Exxon v. Fluff, 94 S.W.3d 22, 26-28 (Tex. App.-Tyler 2002, pet. den'd.) ............... 7
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) ...... 12
Gorelick v. State of Texas, 572 F. Supp. 301, 306 (E.D. Tex. 1983) ........................ 7
Hancock v. Variyan, 400 S.W.3d 59, 68 (Tex. 2013) ............................................... 14
Harris County Appraisal Dist. v. Primrose Houston Housing, L.P., 238 S.W.3d 782, 787 (Tex. App.-Houston [1 s ' Dist.] 2007, no pet.) ........................................... 9
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) ...................................... 13
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) ............................... 11 Martin v. Clinical Pathology Labs, Inc., 343 S.W.3d 885, 888 (Tex. App.-Dallas 2011, pet denied) ........................................................................................................... 7
Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex. App.-Beaumont 2006, pet. denied) ......................................................................................................................... 12
Parkway Co. v. Woodruff 901 S.W.2d 434, 444 (Tex. 1995) .................................. 14
Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106 (Tex. App.-Dallas 2009, pet denied) ......................................................................................................................... 10
Plunkett, 285 S.W.3d at 117-118 ................................................................................. 10
Plunkett, 285 S.W.3d at 119 ......................................................................................... 11
Plunkett, 285 S.W.3d at 120 ......................................................................................... 11
Plunkett. 285 S.W.3d at 121 ......................................................................................... 11
Praytor v. Ford Motor Co., 97 S.W.3d 237, 244 (Tex. App.-Houston [14th Dist ] 2002, no pet.) .............................................................................................................. 12
Rayon v. Energy Specialties, Inc., 121S.W.3d 7,20 (Tex. App.-Fort Worth 2002, no pet.) ......................................................................................................................... 11
Rosenboom Machine & Tool, Inc. v. Machala, 995 S.W.2d 817 S.W.2d 817 (Tex. App.-Houston [1 st Dist.] 1999, review denied) ...................................................... 14
Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)...14
Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex. App.-Eastland 2001, pet. den'd)...7
Stuart v. Bayless, 964 S.W2d 920, 921 (Tex. 1998) .................................................. 14
Tex. Ass 'n of Bus. V. Tex. Arr. Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) ...... 6
Thomas v. Barton Lodge II, Ltd., 174 F3d 636 (5 111 Cir. 1999) ................................. 14
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) ........................... 13
vi Vann v. Bow /c Sewerage Co., Inc., 90 S.W.2d 561, 562 (Tex. 1936) ....................... 6
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) ................................. 12
STATUTES
Tex, Prop. Code §.5.021 .................................................................................................. 8
vii STATEMENT OF THE NATURE OF THE CASE
Nature of the Case: Plaintiff contended that her house was damaged and she suffered personal injury damages when an air conditioner was negligently installed on November 16, 2011. The alleged negligent installation caused extensive water damage that destroyed the home with an infestation of mold. Plaintiff asserted claims under negligence, the Texas Deceptive Trade Practices Act and fraud.
Trial Court: 149' District Court of Brazoria County, Hon. Terri Holder Presiding.
Proceedings Below: Defendant filed a series of motions for summary judgment, challenging all of Plaintiffs claims on various grounds, including standing, limitations and no-evidence grounds. CR 150-158; CR 159-166; CR 210-216; CR 235-244; CR 291-293. The trial court disposed of all Plaintiffs claims based on the motions for summary judgment on the grounds that Plaintiff lacked standing and that there was no evidence to support Plaintiffs personal injury damage claims. Based on the summary judgment rulings, the trial court rendered a final, take- nothing judgment against Plaintiff on all claims. Tab A. This appeal followed.
viii STATEMENT REGARDING THE RECORD
Citations to the clerk's records will be to the page of the single volume. CR
Citations to items included in the appendix to the Brief of Appellee will be to tab number: Tab
ix V. ISSUES ON APPEAL
A. The Standing Issue
Issue I. Did Plaintiff lack standing to pursue claims for damage to her parents' home when she did not own it?
B. No Evidence Grounds
Issue II. Did the trial court properly grant the no-evidence motion for summary judgment as to her claims for personal injury damages? 01-14-0702-CV
IN THE FIRST COURT OF APPEALS FOR TEXAS
Lynette Starr, Appellant,
TO THE HONORABLE COURT OF APPEALS:
Appellee, A. J. Struss Company, LLC ("AJS"), files its Brief of Appellee in
support of the final summary judgment rendered by the court below:
STATEMENT OF FACTS
I. Procedural History.
A. Plaintiff Filed Her Lawsuit.
On October 10, 2012, Plaintiff Lynette Starr, as the only party, filed her
Original Petition. CR 7. In it, she alleged that she contracted with AJS to install an
HVAC system in "her home." CR 8. Plaintiff alleged the HVAC system was
negligently installed in her attic causing a major ceiling leak. CR 8-9. There was
resulting mold infestation. CR 8. Plaintiff sought damages of loss home equity, loss of use of the home, costs
of repair to the house, cost of mold remediation, severe physical pain and mental
anguish, as well as reasonable and necessary medical services. CR 9-10.
B. The Ray Starr Affidavit.
In her response to Defendant's Motion for Summary Judgment based on lack
of standing, Plaintiff attached an affidavit from Ray Stan. CR 170-171. The
affidavit was executed on June 9, 2014, by Mr. Starr, the day before the response
was filed. CR 171. In paragraph 5 of the affidavit, he recited that he gave the house
to Lynette Stan in 2005. CR 170. No deed was made. Id. The affidavit also stated
that he executed a Durable Power of Attorney in favor of Plaintiff in January 2014.
AJS filed an objection to the Durable Power of Attorney (CR 254-255) which was
granted by the trial court. (CR 297-298).
C. Plaintiff Filed Last Petition.
On February 28, 2014, Plaintiff filed her Third Amended Original Petition.
CR 105. Once again, there is no other party and there is no mention that she was
assigned causes of action or that she represented her parents. She alleged
negligence, fraud and DTPA violations. CR 105-110. Her damage claim was for
the following in the past and future: (1) physical pain and mental anguish, (2) lost
home equity, (3) loss of use of the home, (4) reasonable and necessary medical
expenses, (5) cost of repair, and (6) cost of mold remediation. CR 110-111. There
2 was no mention that any personal property of Lynette Stan was damaged and she
did not make a claim for same.
II. Summary Judgment Proceedings.
A. The Motion for Summary Judgment on the Standing Issue.
After conducting discovery, AJS filed a motion for summary judgment that
Plaintiff lacked standing to pursue a claim for alleged damage to a home that she
did not own. Indeed, Plaintiff effectively admitted this point:
Q. Who owns the -- and when I say "the house" can we have an understanding that I'm referring to 25015 County Road 46? In the course of this deposition when I refer to "the house" or "the home," can we have an agreement that we're talking about 25015 County Road 46? A. Yes, sir. Q. Who owns the house? A. My parents. Q. What are their names? A. Ray Starr, Sharron Starr. Q. Do they still live at the house? A. Not in the home. Q. They staying with someone? A. Now they have a camper. Q. That's located on the property? A. Yes, sir.
CR 160 (Starr Depo.) Ray Stan and Shannon Stan have never been parties to this
suit. There was no evidence that Plaintiff complied with the statute of frauds by
presenting a writing executed at the time she filed suit establishing that Plaintiff
owned the property.
3 B. The No Evidence Motion for Summary Judgment.
In this case, Plaintiff alleged that she developed infections, allergies, skin
conditions of various sorts, along with occasional respiratory issues due to
exposure to toxic mold. For example, she claimed that she "had non-stop issues
with [her] skin" and had "developed more allergies or [sic] reactions." CR 151.
She also complained that the mold infection "ended up getting into [her] teeth and
jaws...." Id. Defendant filed a no evidence motion for summary judgment arguing
that there was no evidence that established a causal connection between alleged
exposure to mold and Plaintiff's injuries and damages. Indeed, Plaintiff was unable
to produce any medical evidence that established alleged exposure to toxic mold
caused any of the alleged health issues.
C. Judge Holder Granted Summary Judgment on All of Plaintiff's Claims.
On July 7, 2014, there was a hearing before Judge Holder on all pending
motions for summary judgment and objections to summary judgment evidence. CR
297-298. The Court granted Defendant's motion for summary judgment relating to
the standing issue and the no evidence motion for summary judgment concerning
Plaintiffs personal injury claims because of an absence of expert testimony. Id.
The Court concluded that the Court's rulings served as a "Final Judgment because
they disposed of all of Plaintiff's claims." Id.
4 SUMMARY OF ARGUMENT
Texas law provides that standing is a prerequisite to maintaining a suit.
Under Texas law, a party has standing to bring suit if (1) it has suffered a distinct
injury, and (2) there exists a real controversy that will be determined by judicial
determination sought. Plaintiff did not own the property when the incident
occurred or when she filed suit. To have standing to sue for property damage,
Plaintiff must show that she owned the property at the time of the alleged injury.
Because a trial court determines jurisdiction at the time suit is filed, Plaintiff
cannot establish jurisdiction in June 2014 as a result of an affidavit stating that
Plaintiffs father intended to give her the property.
Plaintiff produced no medical records or testimony that established that she
developed bone infections, respiratory infections, skin infections or any other
malady due to alleged exposure to toxic mold. Texas law clearly requires a
Plaintiff, in an exposure case, to prove the levels of exposure that are dangerous to
humans generally, and must prove the actual level of exposure of Plaintiff to the
toxic mold. Plaintiff has not even come close to meeting the threshold
requirements.
ARGUMENT
A. Standard of Review
5 An appellate court may review and affirm the standing of summary
judgment on any ground the movant presented to the trial court in its motion for
summary judgment, regardless of whether the trial court identified the ground
relied on to grant the summary judgment. Cincinnati Life Ins. Co. v. Cates, 927
S. W.2d 623, 625-26 (Tex. 1996). Thus, if any ground for summary judgment
presented to the trial court has merit, this Court should affirm the trial Court's final
judgment on that basis.
ISSUE I: Did Plaintiff Lack Standing to Pursue Claims for Damage to her Parents' Home When She Did Not Own It?
Standing is a constitutional prerequisite to maintaining suit. Tex. Ass'n of
Bus. V. Tex. Arr. Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The absence of
standing may be raised by a motion for summary judgment. Bland Indep. Sch. Dist.
v. Blue, 34 S.W.3d 547, 559 (Tex. 2000). Under Texas law, a party has standing to
bring a suit if (1) it has suffered a distinct injury, and (2) there exists a real
controversy that will be determined by the judicial determination sought. Brown v.
Todd, 53 S.W.3d 297, 305 (Tex. 2001).
In Texas, to have standing to sue for property damage, a Plaintiff must show
that he owned the property at the time of the alleged injury or, if he did not own the
property at that time, that he was expressly assigned the causes of action for
property damage. Vann v. Bowie Sewerage Co., Inc., 90 S.VV.2d 561, 562 (Tex.
6 1936); Exxon v. Pluff, 94 S.W.3d 22, 26-28 (Tex. App.-Tyler 2002, pet. den'd.)
Texas case law consistently holds that the property owner at the time the damage
occurs has the right of action for all the damages. Exxon Corp. v. Emerald Oil &
Gas, Co., L.C., 331 S.W.3d 414, 424 (Tex. 2010); Senn v. Texaco, Inc., 55 S.W.3d
222, 225 (Tex. App.-Eastland 2001, pet. den'd) (explaining that the right to sue for
both permanent and temporary injures to land belongs to the person owning the
land when the injury commences, and does not "run with the land.")
This rule makes sense for a number of reasons. For example, a purchaser of
"injured" property is presumed to have paid a price that reflects the land's
diminished utility. Gorelick v. State of Texas, 572 F. Supp. 301, 306 (E.D. Tex.
1983). Allowing a subsequent purchaser to recover damages from the injury would
provide it a windfall. Id. Similarly, standing must exist at the time a Plaintiff files
suit and must continue to exist between the parties at every stage of the legal
proceedings, including the appeal; if the Plaintiff lacks standing at the time suit is
filed, the case must be dismissed, even if the Plaintiff later acquires an interest to
support standing. Martin v. Clinical Pathology Labs, Inc., 343 S.W.3d 885, 888
(Tex. App.-Dallas 2011, pet denied); Bell v. Moores, 832 S.W.2d 749, 754 (Tex.
App.-Houston [14' Dist] 1992, writ denied) ("A trial court determined its
jurisdiction at the time a suit is field. At that time, the court either has jurisdiction
or it does not. Jurisdiction cannot be acquired while the suit is pending.")
7 Based on Ray Starr's June 9, 2014, affidavit, Plaintiff contends that she was
orally given the house and property by her parents in 2005. CR 170. However,
there is no written document reflecting transfer of ownership of the house and
property to Plaintiff The statute of frauds mandates that a conveyance of "an estate
of inheritance, a freehold or an estate for more than one year, in land and
tenements, must be in writing and must be subscribed and delivered by the
conveyor or by the conveyor's agent authorized in writing." Tex. Prop. Code
§5.021.
Plaintiff's apparent claim that she had "equitable title" at the time she filed
the lawsuit confounds the concept of "equitable title." Plaintiff uses the phrase
"equitable title" as if it must apply to her situation. As noted in the case cited by
Plaintiff/Appellant, City of Houston v. Guthrie, 332 S.W.3d 578, 588 (Tex. App.-
Houston [1 Dist.] 2009, pet denied), "equitable title" is an "enforceable right to
have legal title transferred to holder of equity." Guthrie, 332 S.W.3d at 588. Starr
has not demonstrated that she had an "enforceable right" at the time she filed her
lawsuit to have legal title transferred to her. Starr concedes on page 4 of her brief
that "equitable title" is a right "to have legal title to real estate transferred to the
owner of the right upon the performance of specified conditions," citing Guthrie,
332 S.W.3d at 558 (emphasis added).
8 On the other hand, Starr failed to identify/ the specific condition to be
performed that is the predicate for transference of a legal right to real estate. In
short, under Texas law, "an entity holds equitable title when it possesses the
present right to have legal title." Harris County Appraisal Dist. v. Primrose []St Houston Housing, L.P., 238 S.W.3d 782, 787 (Tex. App.-Houston Dist.] 2007,
no pet.) Simply put, sometime in 2005, Ray Starr told Lynette Starr he would give
her the house and property (according to his June 9, 2014, affidavit). There was no
enforceable right or condition to be performed by Lynette Starr.
Starr incorrectly argued that she had right to bring the claims for her parents,
(acknowledging that she did not own them), because she had the Durable Power of
Attorney signed by her father. Because the trial court sustained AJS' objection to
the Durable Power of Attorney, this argument is baseless. CR 297; TAB A. Starr
did not appeal the portion of the trial court's order sustaining the objection to the
"Durable Power of Attorney." Therefore, she did not have any rights under the
Durable Power of Attorney.
Starr claims that she has standing to sue for damage to her personal property.
However, in her Third Amended Original petition, she did not claim damages to
any personal property allegedly due to mold, Further, even if she had made the
allegation, there was no evidence of damage to personal property presented to the
trial court.
9 B. NO EVIDENCE GROUNDS
ISSUE II: Did The Trial Court Properly Grant the No Evidence Motion for Summary Judgment as to Her Claims for Personal Injury Damages?
In arguing that the trial court erred in granting Defendant's no evidence
motion for summary judgment, the Appellant mystifyingly claimed that "[t]here is
no case law that allergies to common molds is necessarily a "toxic tort" subject to
the enhanced medical expert requirement,' and then cites Plunkett v. Conn. Gen.
Life Ins. Co., 285 S.W.3d 106 (Tex. App.-Dallas 2009, pet denied). The Appellant
then quotes a sentence that references "property damage."' Appellant ignored the
Plunkett opinion's extensive analysis of medical evidence presented by the
plaintiffs in response to a no evidence motion for summary judgment in a toxic tort
mold case.
As a result, contrary to Starr's claim, Plunkett provides a clear road map and
instruction on this issue. In that case, residents of an apartment complex alleged
damages arising from toxic mold contamination. They brought suit against the
complex owner as well as entities involved in the development, construction and
management of the complex. Unlike this case, the residents actually had an
internist/toxicologist who provided opinions purportedly establishing their alleged
personal injuries. Plunkett, 285 S.W.3d at 117-118. Nonetheless, the defendants
I Appellant's Brief, p. 6. =
10 moved for summary judgment because of lack of evidence of damage and
causation which the trial court granted. The plaintiffs expert, Dr. Rao, had
reviewed information regarding mold exposure and tests administered to some of
the plaintiffs. Id. However, the expert did not examine any of the plaintiffs
personally.
The Plaintiffs expert in Plunkett, acknowledged that with regard to residents
he had not seen, he was unable to opine with a reasonable degree of medical
probability that their health complaints were in fact caused by mold exposure at the
complex. Plunkett, 285 S.W.3d at 119. However, Dr. Rao also testified that he did
not believe it was medically necessary for him to examine the individual residents.
He provided an affidavit that the court determined did nothing more than "provide
evidence that the type of mold found at the apartment complex is generally capable
of causing health problems, but is no evidence of cause in fact of any specific
residents' health complaints, and is conclusory." Plunkett. 285 S.W.3d at 121.
The Plunkett court stated that "expert" opinions must be supported by facts
in evidence not "conjecture". Plunkett, 285 S.W.3d at 120, quoting Marathon
Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). In deciding summary
judgment motions, a trial court should not consider expert opinion based on
assumptions of unproven facts. Rayon v. Energy Specialties, Inc., 121S.W.3d 7, 20
(Tex. App.-Fort Worth 2002, no pet.). Moreover, conclusory expert opinions are (Tex. App.-Fort Worth 2002, no pet.). Moreover, conclusory expert opinions are
insufficient to defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d
464, 466 (Tex. 1997). In the instant matter, even if the Plaintiff had an expert
witness providing evidence establishing causation, the witness' testimony must be
relevant and based upon a reliable foundation. Exxon Pipeline Co. v. Zwahr, 8
S. W.3d 623, 628 (Tex. 2002).
In a toxic tort case, the plaintiff bears the burden of proving both "general"
and "specific" causation. Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex.
App.-Beaumont 2006, pet. denied). To that end, with regard to a plaintiffs injury, a
plaintiff must prove that it was caused by exposure to a particular substance which
was capable of causing a particular injury or condition and that the substance in
fact caused the plaintiff's injury. Praytor v. Ford Motor Co., 97 S.W.3d 237, 244
(Tex. App.-Houston [14th Dist.] 2002, no pet.). Further, to demonstrate medical
causation, the plaintiff must exclude or rule out other potential causes of his
alleged symptoms and medical illnesses. Burroughs Wellcome Co. v. Ctye, 907
S. W.2d 497, 499-500 (Tex. 1995). "If there are other plausible causes of the injury
or condition that could be negated, the [claimant] must offer evidence excluding
those causes with a reasonable certainty." Gammill v. Jack Williams Chevrolet,
Inc., 972 S.W.2d 713, 727 (Tex. 1998).
12 Producing or proximate cause is an element of all of the Plaintiffs claims.
Cause-in-fact is common to both proximate and producing cause, including the
requirement that the Defendant's conduct be a substantial factor in bringing about
the injuries in question. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006);
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Plaintiffs
medical causation evidence is not only legally insufficient, it is non-existent.
Moreover, the legal insufficiency present in this case is factually insurmountable.
There is no evidence that demonstrates exposure to mold was a cause in fact of her
alleged symptoms and medical problems. See Borg-Warner Corp. v. Flores, 232
S. W.3d 765 (Tex. 2007). At a minimum, the Plaintiff must present reliable
testimony satisfying Tex. R. Evid. 702 establishing that she was exposed to a
particular substance, in sufficient quantity, that was capable of producing her
injuries and conditions. The Texas Supreme Court has held that a person's
exposure to "some" respirable asbestos fibers is not sufficient to show that a
product containing asbestos was a sufficient factor in causing asbestosis. Borg-
Warner Corp. v. Flores, 232 S.W.3d 765, 772-73 (Tex. 2007).
The affidavit of Lynette Stan lacks any evidence of mental anguish. To
recover for mental anguish, Stan must show by direct evidence "the nature, or
severity of ...anguish, thus establishing a substantial disruption in [her] daily
routine" or show by other evidence "a high degree of mental pain and distress that
13 is more than mere worry, anxiety, vexation, embarrassment or anger." Saenz v.
Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Parkway
Co. v. Woodruff 901 S.W.2d 434, 444 (Tex. 1995). In addition, there must be
evidence to justify an award of mental anguish. See Hancock v. Variyan, 400
S. W.3d 59, 68 (Tex. 2013). Starr failed to present evidence of mental anguish, that
is of a "high degree of mental pain and distress." More to the point, there is no
evidence that alleged exposure to toxic mold caused any physical malady and
concomitant mental anguish.
Starr failed to plead recovery for damages to her personal property. A
petition must set out sufficiently specific facts so that an opposing attorney of
reasonable competence can ascertain from the pleadings the remedies and damages
sought by the Plaintiff Rosenboom Machine & Tool, Inc. v. Machala, 995 S.W.2d
817 S.W.2d 817 (Tex. App.-Houston [l s ' Dist.] 1999, review denied). Under Texas
law, damages must be alleged with specificity. See Thomas v. Barton Lodge II,
Ltd., 174 F3d 636 (5' Cir. 1999). Starr did not plead sufficient facts, or any, that
she was seeking damages for personal property damages. Failure to plead such
damages precludes their recovery because AJS did not have notice that the Plaintiff
would suffer such damages. See Stuart v. Bayless, 964 S.W2d 920, 921 (Tex.
1998). Moreover, there was no evidence of damage to personal property nor
complaints of personal property damaged by AJS conduct.
14 In sum, the trial court correctly determined that there was no evidence to
support Stan's claim for personal injury claims based on exposure to mold.
Appellee AJS respectfully requests the affirmation of the Order of the trial court.
CONCLUSION
Based on the foregoing, AJS requests that this Court of Appeals affirm in all
respects the order of the trial court finding that Appellant Starr take nothing from
AJS.
Respectfully submitted,
/s/ Wade R. Quinn Wade R. Quinn TBA No. 16433600 Lance Olinde, Jr. TBA No. 15254215 Ramey, Chandler, Quinn & Zito, P.C. 750 Bering Drive, Suite 600 Houston, Texas 77057 713-266-0074 — Phone 713-266-1064 — Fax Wquinngramey-chandler.com Lolinderamey-chandler.com
15 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was served upon the parties listed below by facsimile, certified mail, return receipt requested, first class U.S. mail, electron ail by the clerk of the court, and/or by h messenger on the / day of J,yrutow— , 2014.
Wale • Guinn Lance Olinde, Jr. Savannah Robinson Law Office of Savannah Robinson 1822 Main Danbury, Texas 77534
16 CERTIFICATION
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned authority, personally appeared LANCE
OLINDE, JR., a credible person known unto me who, after being duly sworn by
me, did swear and state that he is over twenty one (21) years of age, is of sound
mind, has never been convicted of a crime of moral turpitude, that he is one of the
attorneys of record for A.J. Struss Company LLC, Appellee in this matter, that as
such, he has personal knowledge of the underlying litigation, that he has reviewed
the above and foregoing document, and that all the factual statements are within
his personal knowledge and are true and correct. Furthermore, all documents
contained in the Appendix filed by A.J. Struss Company LLC are true and correct
copies of the originals.
Pursuant to Tex. R. App. P. 9.4, this response was generated using Microsoft
Word with Times New Roman 14 point font and contains 4571 words.
1 (.1 , .1:-/( /+ CE OLINDE, JR.
SIGNED and SWORN BEFORE ME, the undersigned authority, on this the
day of January, 2015.
Notary Public\.
17 EXHIBIT "A" ri Heceivea tor Hecoro jjQ 7/24/2014 8:48:53 AM Rhon rchak. District Clerk i q_ 'County, Ba Texas 70046 Ilyrandice Haseloff, Deputy AUG 01 CAUSE NO. 70046 97T4fas
Lynette Starr oly AT OF V. 149 IH Judicial District
AJ Struss & Company BRAZORIA COUNTY, TEXAS
ORDER ON MOTIONS AND OBJECTIONS HEARD ON JULY 7, 2014
On July 7, 2014, the Court considered the following motions and objections:
1. Defendant A. J. Struss Company, LLC's Motion for Partial Summary Judgment; 2. Defendant A. J. Struss Company, LLC's No Evidence Motion for Summary Judgment Regarding Plaintiffs Personal Injury Allegations; 3. Defendant A. J. Struss Company, LLC's Objection to Summary Judgment Evidence filed on June 10, 2014 (Ray Starr Affidavit); 4. Defendant A. J. Struss Company, LLC's Objection to Durable Power of Attorney; 5. Defendant A J. Struss Company, LLC's objections and reply to Plaintiffs Response to Defendant's No Evidence Motion for Summary Judgment Regarding Plaintiffs Personal Injury Allegations; 6. Defendant A. J. Struss Company, LLC's Objection to the Affidavit of Lynette Starr; and, 7. Plaintiffs Objection to the records marked as Exhibit "A" purporting to be FEMA records.
The Court, having considered all Motions, objections, responses, replies, briefs and sur-replies by all parties, all evidence, the pleadings on file and arguments of counsel, the Court makes the following rulings. Therefore, it is
ORDERED, ADJUDGED AND DECREED-
1. The Defendant's Objection to Plaintiffs "Undisputed Facts" is sustained; 2. The Defendant's Objection to the affidavit of Lynette Star is overruled; 3. The Plaintiffs Objection to the records marked as "Exhibit A" purporting to be FEMA records is sustained; 4. The Defendant's Objection to Ray Starr's Affidavit is overruled; 5. The Defendant's Objection to the Durable Power of Attorney is sustained; 6. The Motion for Summary Judgment regarding standing is granted as to property damage claims; and 7. The No Evidence Motion for Summary Judgment in regard to a lack of expert witness testimony is granted,
The Court further finds that the rulings in this Order will serve as a Final Judgment because they dispose of all of Plaintiff's claims. Costs of Court will be taxed against the party incurring same. SIGNED this the I Cr day of Ppctibor , 2014.
JUDGE PRESIDING
APPROVED AS TO FORM:
Quinn BA No. 16433600 Lance Olinde, Jr. TBA No. 15254215 Ramey, Chandler, Quinn & Zito, P.C. One Bering Park 750 Bering Drive, Suite 600 Houston, Texas 77057 713-266-0074 - Phone 713-266-1064 - Fax Wquinn@ramey-chandlencom Attorneys for Defendant, Struss Company LLC
Savannah Robinson TBA No. 17108150 Law Office of Savannah Robinson 1822 Main Danbury, Texas 77534 979-922-8825 — Phone 979-922-8857 — Fax savannahrobinson@aol.com Attorney for Plaintiff, Lynette Starr