Opinion issued July 9, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00702-CV ——————————— LYNETTE STARR, Appellant V. A.J. STRUSS & COMPANY, Appellee
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 70046
MEMORANDUM OPINION
Appellant Lynette Starr appeals the trial court’s rendition of summary
judgment in favor of Appellee A.J. Struss & Company (“A.J. Struss”). Lynette
sued A.J. Struss to recover property and personal injury damages that she alleged
were caused by A.J. Struss’s faulty installation of a new heating, ventilation, and air conditioning (“HVAC”) system. The trial court granted summary judgment on
the property claim on the ground that Lynette did not hold legal title to the home
and therefore lacked standing to sue for damage to it. With regard to Lynette’s
personal injury claim, it granted summary judgment because Lynette adduced no
evidence raising a fact issue as to whether her alleged injuries were caused by A.J.
Struss. We affirm in part, reverse in part, and remand the cause to the trial court
for further proceedings.
Background
Lynette’s father, Ray Starr, built a home in Angleton, Texas in 1964, and he
and his wife, Sharron, lived there until 2011. Lynette lived in the home from 1994
to 2012.
In 2011, Lynette applied to the Galveston County Community Action
Counsel for a grant to replace the home’s HVAC unit. She received the grant, and
on November 9, 2011, A.J. Struss installed a new HVAC unit at no cost to the
Starrs.
Lynette sued A.J. Struss in October 2012, asserting that A.J. Struss
negligently installed the HVAC system, which caused water damage to ceilings,
walls, and floors that resulted in mold infestation. In February 2014, Lynette
amended her petition for a third time and alleged negligence, fraud, and violations
2 of the Deceptive Trade Practices Act (“DTPA”), which resulted in property and
personal injury damages. She sought damages for:
• physical pain and mental anguish;
• loss of home equity;
• loss of use of the home;
• cost of reasonable and necessary medical expenses;
• “cost of repair;” and
• cost of mold remediation.
On June 5, 2014, A.J. Struss filed two motions for summary judgment. On
both traditional and no-evidence grounds,1 A.J. Struss moved for summary
judgment on Lynette’s claims for property damages, arguing that Lynette lacked
standing to assert claims for property damage because she did not own the home.
In its no-evidence motion concerning Lynette’s claims for personal injury
damages, 2 A.J. Struss argued that there was no evidence showing Lynette’s
alleged exposure to mold caused her alleged personal injuries. Specifically, A.J.
Struss argued that it was entitled to summary judgment because Lynette failed to
1 Although A.J. Struss’s motion for summary judgment concerning Lynette’s claims for property damage includes the standard of review for no-evidence motions for summary judgment, the motion itself contains both no-evidence and traditional grounds. Accordingly, we consider this motion as a combined traditional and no- evidence motion for summary judgment. 2 A.J. Struss requested summary judgment on “all claims for personal injury damages, including physical pain and mental anguish, emotional distress, impairment, disfigurement, lost wages, in the past and future . . . .”
3 adduce expert evidence showing the levels of mold exposure and that the mold
exposure caused her alleged health issues.
In response to A.J. Struss’s motion concerning standing, Lynette argued she
had standing to sue for property damage because, although Ray never executed a
deed, she holds equitable title to the property because Ray “gave” it to her in 2005.
She offered Ray’s affidavit,3 in which he averred:
• I “gave” Lynette the house in 2005, “but did not move out, or make a Deed.”
• “By my gift of the house to Lynette, I expressly granted to her the rights and responsibilities of ownership, including finding and authorizing the replacement of the air conditioning system.”
• In 2011, my wife and I moved out of the home “after the incident that is the basis of this lawsuit” and I have “relied upon Lynette to make all claims for damage to the house from this incident, both before and after suit.”
• In 2013, I “specifically authorized Lynette Starr to bring this suit concerning the house, which is still in my name.”
In response to A.J. Struss’s motion concerning claims for personal injury
damages, Lynette argued that expert testimony was unnecessary because her health
conditions were within a jury’s common knowledge and experience. In support,
Lynette offered her own affidavit, in which she averred:
• I “began to experience allergy-type symptoms, including coughing, reddened eyes, headaches, sinus infections, nosebleeds, and itchy skin” within a few weeks of the “flooding”; 3 Lynette also offered a Durable Power of Attorney in support of her response. But we do not consider it on appeal because Lynette does not challenge the trial court’s decision to sustain A.J. Struss’s objection to the document.
4 • I sought medical care for wheezing and shortness of breath;
• I developed “small infected areas” on my skin and “abscesses [and] large infections in my gums”;
• I sought medical care for my skin infections and my “doctors [had] not been able to discover any other cause of the infections other than my exposure to the molded environment of the home”;
• I had surgery on my teeth and jaw because of gum abscesses and my dentist “believe[d] that the infections in my gums [were] related to the infections on my skin”;
• “Because I [was] familiar with my own health, and because the only thing that changed in my environment was the flooding of the house, I believe[d] that the flooding allowed the mold to grow, and the mold caused my allergies and symptoms”; and
• “Allergic responses are within the knowledge of a layperson. The determination of causation is based largely on the immediacy of my responses to the presence of the mold in my house, and due to the fact that when I [was] not in the house or exposed to the mold, the symptoms [went] away. When I [had] to go back into the home, the allergic responses start[ed] again.”
Lynette also offered excerpts of her own deposition, in which she testified that
mold exposure caused the following health problems:
• Difficulty in breathing and wheezing;
• Tightness in her chest and coughing;
• Allergies;
• Infections in her sinuses, chest, head, ears, teeth and jaw; and
• Skin disorders.
5 In July 2014, the trial court conducted a hearing on A.J. Struss’s motions for
summary judgment and its objections to Lynette’s summary-judgment evidence.
On August 1, 2014, the trial court entered a final judgment granting both summary-
judgment motions. The trial court’s order stated that “[t]he motion for Summary
Judgment regarding standing is granted as to property damage claims” and “[t]he
No Evidence Motion for Summary Judgment in regard to a lack of expert witness
testimony is granted.”
Discussion
I. The trial court’s judgment was final
In her third issue, Lynette contends that we lack jurisdiction because A.J.
Struss’s summary judgment motions did not address all of her claims and the trial
court’s order granting summary judgment is therefore not a final appealable
judgment. Specifically, Lynette contends that A.J. Struss’s summary-judgment
motions failed to address her claim for damages to personal property inside the
home.
A judgment is final if it disposes of all claims and parties before the court,
regardless of its language, or if it states with unmistakable clarity that it is a final
judgment as to all claims and all parties. In re Vaishangi, Inc., 442 S.W.3d 256,
259 (Tex. 2014) (citations omitted).
6 A.J. Struss’s summary-judgment motion concerning standing covered
“claims for economic damages associated with the home and/or property.” That
motion thus addressed all of Lynette’s claims for property damage, including
claims for damage to the real property and damage to the personal property in the
home. And A.J. Struss’s second motion for summary judgment covered all claims
for personal injuries. The trial court’s summary-judgment order disposed of
Lynette’s property and personal injury claims; it therefore disposed of all of her
claims, and was in fact a final judgment. See id. (judgment is final if it disposes of
all claims).
We overrule Lynette’s third issue and hold that we have jurisdiction to
consider the merits of Lynette’s appeal.
II. Summary Judgment
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
7 of the elements specified in the motion. Hahn, 321 S.W.3d at 524; Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
In a traditional summary judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick
v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A
defendant moving for traditional summary judgment must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We review a trial court’s decision
to grant or to deny a motion for summary judgment de novo. See Tex. Mun. Power
Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2008).
A. Claims for property damage
In her first issue, Lynette contends that the trial court erred in granting
summary judgment on her claims for property damage on the ground that she did
not own the home and therefore lacked standing because she raised a fact issue as
to whether she held equitable title to the home. According to Lynette, she raised a
8 fact issue concerning equitable title because she adduced evidence demonstrating
that her father, Ray, orally gifted the home to her.
1. Summary judgment motions challenging jurisdiction
A summary-judgment motion challenging jurisdiction may challenge either
the pleadings or the existence of jurisdictional facts. Montrose Mgmt. Dist. v. 1620
Hawthorne, Ltd., 435 S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226–27 (Tex. 2004)). When such a motion challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties to
resolve the jurisdictional issues raised, as the trial court is required to do. Id.
(citing Miranda, 133 S.W.3d at 227). If a fact question is presented by the
evidence regarding a jurisdictional issue, then the trial court is precluded from
granting summary judgment on the jurisdictional challenge, and fact issues will be
resolved by the fact-finder. Id. (citing Miranda, 133 S.W.3d at 227–28).
However, if the relevant evidence is undisputed or fails to raise a genuine fact issue
regarding the jurisdictional challenge, the trial court grants summary judgment as a
matter of law. Id. (citing Miranda, 133 S.W.3d at 228).
2. Standing
“[S]tanding focuses on the question of who may bring an action . . . .”
Patterson v. Planned Parenthood of Houston and Southeast Tex., Inc., 971 S.W.2d
9 439, 442 (Tex. 1998). The general test for standing is whether there is a real
controversy between the parties that will actually be determined by the judgment
sought. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). “To establish standing, a person must show a personal stake in the
controversy.” In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996).
Standing is a component of subject-matter jurisdiction. Tex. Ass’n of Bus.,
852 S.W.2d at 445–46; see also DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299,
304 (Tex. 2008) (“A court has no jurisdiction over a claim made by a plaintiff
without standing to assert it.”). If a party lacks standing to bring an action, the trial
court lacks subject-matter jurisdiction to hear the case. See Tex. Ass’n of Bus., 852
S.W.2d at 444–45.
Typically, a challenge to standing is raised in a plea to the jurisdiction. See
Brown v. Todd, 53 S.W.3d 297, 305 n.3 (Tex. 2001) (“Because standing is a
component of subject matter jurisdiction, we consider [the plaintiff’s] standing as
we would a plea to the jurisdiction.”). But the Texas Supreme Court has
recognized that the absence of subject-matter jurisdiction may also be raised by a
traditional motion for summary judgment. See, e.g., Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000); NME Hosps., Inc. v. Rennels, 994 S.W.2d
142, 144 (Tex. 1999).
10 We review whether a trial court has subject matter jurisdiction de novo. Tex.
Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002);
see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
3. Parol gift of realty in equity
“A gift is a voluntary transfer of property to another made gratuitously and
without consideration.” Gomer v. Davis, 419 S.W.3d 470, 476 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (citing Lopez v. Lopez, 271 S.W.3d 780, 788
(Tex. App.—Waco 2008, no pet.)). The three elements that constitute a gift are:
(1) donative intent, (2) delivery of the property, and (3) acceptance of the property
by the donee. Id.
Although the statute of frauds generally prohibits enforcement of an oral
conveyance of real property, see TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4)
(West 2015), the rule does not apply if a plaintiff shows a parol gift of real estate
in equity. Flores v. Flores, 225 S.W.3d 651, 655 (Tex. App.—El Paso 2006, pet.
denied); Troxel v. Bishop, 201 S.W.3d 290, 297 (Tex. App.—Dallas 2006, no pet.).
To establish a valid parol gift of real estate in equity, a plaintiff must show three
elements: (1) a gift at the present time (“a gift in praesenti”), (2) possession under
the gift by the donee with the donor’s consent, and (3) permanent and valuable
improvements made on the property by the donee with the donor’s knowledge or
consent or, without improvements, the existence of such facts as would make it a
11 fraud upon the donee not to enforce the gift. Flores, 225 S.W.3d at 655 (citing
Thompson v. Dart, 746 S.W.2d 821, 825 (Tex. App.—San Antonio 1988, no writ);
Dawson v. Tumlinson, 242 S.W.2d 191, 192–93 (Tex. 1951)); Troxel, 201 S.W.3d
at 297 (citing Thompson, 746 S.W.2d at 825 and Hooks v. Bridgewater, 111 Tex.
122, 229 S.W. 1114, 1116 (1921)).
4. Analysis
In its motion for summary judgment, A.J. Struss argued that Lynette lacked
standing to assert property damage claims because she did not own the home and
her parents did not expressly assign any causes of action to Lynette. Lynette
contends that the trial court erred in granting summary judgment because she
adduced summary-judgment evidence sufficient to raise a fact issue regarding
whether she held equitable title to the home. We conclude that the trial court erred
in granting A.J. Struss’s motion for summary judgment based on Lynette’s lack of
standing because Lynette adduced evidence raising a fact issue as to whether Ray
made a parol gift of realty in equity, giving her equitable title to assert the claims
for property damage.
Under the first element of a parol gift of realty in equity, we consider
whether Lynette raised a fact issue regarding whether Ray made a gift at the
present time—meaning that he intended an immediate divesture of his rights of
ownership and a consequent immediate vesting of those rights in Lynette at the
12 time he made the gift. See Troxel, 201 S.W.3d at 297. In response to A.J. Struss’s
motion for summary judgment, Lynette offered Ray’s affidavit in which he averred
that he “gave” Lynette the house in 2005 and by his “gift of the house to Lynette,
[he] expressly granted to her the rights and responsibilities of ownership, including
funding and authorizing the replacement of the air conditioning system.” This was
sufficient to raise a fact issue regarding whether Ray had made a present gift of the
home. See id. at 300 (present gift where summary-judgment evidence showed
donor made immediate divesture of rights and investiture of rights to appellant a
year before donor died); cf. Flores, 225 S.W.3d at 657 (no present gift where
evidence showed “at most an intent to make a gift at some future date”);
Thompson, 746 S.W.2d at 826–27 (appellant failed to meet burden of proof to
establish that present gift was made because evidence showed that donor “was
going to give” property and alleged donor “act[ed] generally as though no
divestiture of her property rights had occurred”).
Under the second element of a parol gift of realty in equity, we consider
whether Lynette raised a fact issue regarding her possession of the home with
Ray’s consent. See Troxel, 201 S.W.3d at 297. It is undisputed that Ray permitted
Lynette to live in the home after 2005, and Ray averred that she had lived there
“continuously” since 1994. Lynette thus raised sufficient evidence to raise a fact
issue on the second element of a parol gift in realty. Cf. Thompson, 746 S.W.2d at
13 827 (appellees established appellants had no possession consistent with ownership
rights where alleged donor executed lien on property to secure her debts and
appellants’ son sought buyer for property on behalf of alleged donor).
Under the third element of a parol gift of realty in equity, we consider
evidence of any permanent and valuable improvements to the property by Lynette
with Ray’s knowledge or consent. See Troxel, 201 S.W.3d at 297. It is undisputed
that Lynette arranged for the HVAC system replacement and obtained a grant to
pay for it. In addition, Ray averred that he “expressly granted to [Lynette] the
rights and responsibilities of ownership, including funding and authorizing the
replacement of the air conditioning system.” Because Lynette adduced evidence
that she, at a minimum, made an effort to replace the HVAC system, we conclude
that she adduced evidence sufficient to raise a fact issue on the third element of a
parol gift in realty. See id. (third element of parol gift of realty in equity is met
when “permanent and valuable improvements made on the property by the donee
with the donor’s knowledge or consent or, without improvements, the existence of
such facts as would make it fraud upon the donee not to enforce the gift”).
Because Lynette adduced sufficient evidence to raise a fact issue concerning
whether Ray made a valid parol gift in realty, she raised a genuine issue of material
fact regarding whether she held equitable title and thus had standing to sue for
damage to the home. See id. at 300 (summary-judgment evidence showed
14 equitable title to home where evidence proved intended immediate divesture of
ownership rights and investiture of rights to donee, donee moved into home at that
time, and donee shared some expenses of home, including “hav[ing] the pool
redone” with donor’s knowledge or consent). Accordingly, the trial court erred in
granting summary judgment on Lynette’s claim for property damage.
We sustain Lynette’s first issue.
B. Claims for personal injury damages
In her second issue, Lynette contends that the trial court erred in granting
summary judgment on her claims for personal injury damages allegedly caused by
mold exposure because this is not a toxic-tort case and, therefore, expert testimony
was not necessary to raise a fact issue as to causation.
Lynette alleged negligence, fraud, and DTPA violations. In its no-evidence
motion for summary judgment, A.J. Struss challenged the causation element of
each of these causes of action as they related to Lynette’s personal injury claims.
See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004) (stating
that producing cause under DTPA requires proof of causation in fact); IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)
(causation element of a negligence claim comprises two components: cause in fact,
or “substantial factor,” component and foreseeability component); Hartford Fire
Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 781 (Tex. App.—Houston [1st
15 Dist.] 2009, pet. denied) (causation is necessary element of fraud) (citing Ernst &
Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)). A.J.
Struss argued that there was no evidence of causation because Lynette failed to
offer expert testimony showing that mold exposure caused her personal injuries.
1. Standard of Review and Applicable Law
(a) Expert testimony
“To establish causation in a personal injury case, a plaintiff must prove that
the conduct of the defendant caused an event and that this event caused the
plaintiff to suffer compensable injuries.” Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995) (citation omitted); see Coastal Tankships, U.S.A.,
Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). Lay witness testimony may establish causation when “a sequence of
events which provides a strong, logically traceable connection between the event
and the condition is sufficient proof of causation.” Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 733 (Tex. 1984) (citations omitted); see Guevara v.
Ferrer, 247 S.W.3d 662, 668 (Tex. 2007) (“[N]on-expert evidence alone is
sufficient to support a finding of causation in limited circumstances where both the
occurrence and conditions complained of are such that the general experience and
common sense of laypersons are sufficient to evaluate the conditions and whether
they were probably caused by the occurrence.”). However, when a lay person’s
16 general experience and common sense will not enable that person to determine
causation, expert testimony is required. See Mack Trucks, 206 S.W.3d at 583;
Coastal Tankships, 87 S.W.3d at 603.
Expert testimony is particularly necessary in toxic-tort and chemical-
exposure cases, in which medically complex diseases and causal ambiguities
compound the need for expert testimony. See Coastal Tankships, 87 S.W.3d at
602–04; see also Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36–38 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (holding expert testimony required to
show causation of reactive airway dysfunction syndrome); Sweeney v. Geon Co.,
No. 01-00-00315-CV, 2002 WL 58223, at *5 (Tex. App.—Houston [1st Dist.]
2002, pet. denied) (not designated for publication) (noting that “causation of
injuries from exposure to toxic chemicals is not readily ascertainable from general
experience and common sense” and holding lay testimony not sufficient to
establish that exposure to chemicals caused tooth loss, skin lesions, tumors,
growths, dizziness, swollen joints, or breathing problems).
Whether expert testimony is necessary to prove causation is a question of
law that we review de novo. See Mack Trucks, 206 S.W.3d at 583.
(b) Toxic torts
A toxic tort means a cause of action in tort arising out of exposure to
hazardous chemicals, hazardous wastes, hazardous hydrocarbons, similarly
17 harmful organic or mineral substances, or other similarly harmful substances.
McNair v. Owens-Corning Fiberglas Corp., 890 F.2d 753, 756 n.4 (5th Cir. 1989);
see BLACK’S LAW DICTIONARY 1627 (9th ed. 2009) (toxic tort defined as a “civil
wrong arising from exposure to a toxic substance, such as asbestos, radiation, or
hazardous waste”). A cause of action relating to mold exposure constitutes a toxic-
tort cause of action. See, e.g., Plunkett v. Connecticut Gen. Life. Ins. Co., 285
S.W.3d 106, 120 (Tex. App.—Dallas 2009, pet. denied) (analyzing appellants’
allegations that mold exposure at apartment complex caused health complaints as
toxic-tort case); Allison v. Fire Ins. Exch., 98 S.W.3d 227, 239 (Tex. App.—Austin
2002, pet. granted, judgm’t vacated w.r.m.) (noting that insured homeowner’s
allegation that mold in home caused husband’s brain damage was toxic-tort claim).
Toxic-tort cases require proof of both “general” and “specific” causation.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997); accord
Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex. App.—Beaumont 2006, pet.
denied); Frias v. Atlantic Richfield Co., 104 S.W.3d 925, 928 (Tex. App.—
Houston [14th Dist.] 2003, no pet.); see generally Coastal Tankships, 87 S.W.3d at
601–02, n.19 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). General
causation addresses whether a substance is “capable of causing a particular injury
or condition in the general population,” while specific causation addresses whether
a substance “caused a particular individual’s injury.” Havner, 953 S.W.2d at 714;
18 see Praytor v. Ford Motor Co., 97 S.W.3d 237, 244 (Tex. App.—Houston [14th
Dist.] 2002, no pet.); Neal v. Dow Agrosciences LLC, 74 S.W.3d 468, 472 (Tex.
App.—Dallas 2002, no pet.). “Specific causation cannot be based on inferred
general causation.” Allison, 98 S.W.3d at 239.
2. Analysis
Lynette contends that lay testimony was adequate to prove that mold
exposure caused her personal injuries and, therefore, expert testimony was not
required to defeat summary judgment. We disagree.
In an effort to raise a fact issue on causation, Lynette offered excerpts of her
own deposition in which she testified that mold exposure caused her health issues,
as well as her own affidavit in which she averred that mold exposure caused her
allergies, sinus infections, nosebleeds, skin infections, and abscesses and infections
to her gums. Lay testimony will suffice when general experience and common
sense will enable a lay person fairly to determine the causal nexus. Morgan, 675
S.W.2d at 733; Weidner v. Sanchez, 14 S.W.3d 353, 370 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). Although it may be within general experience that
water can cause mold, we conclude that it is not within the general experience and
common sense of a lay person that exposure to mold causes the injuries Lynette
allegedly suffered. See Mack Trucks, 206 S.W.3d at 583 (“Expert testimony is
required when an issue involves matters beyond jurors’ common understanding.”);
19 FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 91 (Tex. 2004) (“While the
ordinary person may be able to detect whether a visible bolt is loose or rusty,
determining when that looseness or rust is sufficient to create a danger requires
specialized knowledge.”).
A medical expert must personally examine a plaintiff to determine with a
reasonable degree of medical probability that mold exposure caused a plaintiff’s
health complaints. See Plunkett, 285 S.W.3d at 119. But, here, Lynette offered no
medical evidence. She offered no affidavits or reports by doctors that specified
mold exposure as the cause of her personal injuries. Cf. Caldwell v. Curioni, 125
S.W.3d 784, 787, 793 (Tex. App.—Dallas 2004, pet. denied) (reversing summary
judgment in suit for “damages for personal injuries” because plaintiffs raised fact
issue on causation by offering affidavits of several doctors consulted for treatment
and reports specified that doctors observed “a multitude of physical problems in
[the plaintiffs] which were caused by exposure to mold infestation”).
Because this is a toxic-tort case and Lynette failed to offer expert testimony
demonstrating that mold caused her health problems, we conclude that she failed to
raise a fact issue on causation. See Plunkett, 285 S.W.3d at 119, 122 (affirming
summary judgment on “personal injury claims” caused by exposure to toxic mold
where there was no medical expert evidence from doctor who personally examined
plaintiffs and determined mold caused health problems); Coastal Tankships, 87
20 S.W.3d at 607 (expert testimony required to prove causation in toxic-tort case); see
also TEX. R. CIV. P. 166a(i) (trial court must grant no-evidence motion unless
respondent produces summary-judgment evidence raising genuine issue of material
fact of element of claim). Accordingly, we hold that the trial court did not err in
granting summary judgment as to Lynette’s claims for personal injury damages.
We overrule Lynette’s second issue.
Conclusion
We reverse the portion of the trial court’s judgment granting summary
judgment on Lynette’s claims for property damage. We affirm the remainder of
the judgment and remand the cause to the trial court for further proceedings
consistent with this opinion.
Rebeca Huddle Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.