Motion for Rehearing Overruled; =
Memorandum Opinion=20
filed August 9, 2007, Withdrawn, Affirmed and Substituted Memorandum Opinion =
filed=20
September 27, 2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00254-CV
____________
SANDRA ADAIR, ET =
AL.,=20
Appellants
V.
VERITAS DGC=20
LAND, INC., =
Appellee
On Appeal from the =
212th District Court
Galveston County, =
Texas
Trial Court Cause =
No. 01-CV-1068D
S U B S T=20
I T U T E D M E M O R A N D U M O P I N I =
O=20
N
We=20
originally issued our opinion affirming the trial =
court=3Ds judgment=20
on August 9, 2007. Appellants filed a motion for rehearing =
on August=20
24, 2007. We overrule appellants=3D =
motion=20
for rehearing, vacate our August 9, 2007, judgment, withdraw our =
previous=20
opinion, and issue this substituted memorandum opinion in its=20
place.
This case=20
involves 232 plaintiffs who sued alleging property damage from =
seismic=20
surveys conducted by appellee, Veritas DGC Land, Inc. =
(Veritas). =20
Veritas moved for summary judgment on both traditional and =
no-evidence=20
grounds. The trial court granted the summary judgment =
without=20
specifying the grounds. Plaintiffs presents three =
overlapping issues=20
on appeal. We affirm the trial court=3Ds grant of=20
summary judgment.
Factual=20
and Procedural Background
In the=20
spring of 2000, Veritas conducted a seismic survey of sixty square =
miles=20
in Galveston County. Two-hundred-sixty-two plaintiffs filed =
suit=20
against Veritas and others, alleging damage to their homes as a =
result of=20
the survey. Plaintiffs=3D =
causes of=20
action included private nuisance, negligence, gross negligence, =
fraud,=20
constructive fraud, tortious act, strict liability, and exemplary=20
damages.
Due to the=20
large number of plaintiffs, the trial court ordered that the =
plaintiffs be=20
divided into trial groups of thirty. The first trial group =
of thirty=20
was set to go to trial in January of 2005. Summary judgment =
was=20
rendered against thirteen plaintiffs of this first group of =
thirty. =20
The remaining seventeen of the first trial group suffered a =
take-nothing=20
judgment following a trial on the merits. The trial court =
then=20
issued an AAmended=20
Joint Discovery and Docket Control Order@ =
for the=20
remainder of the case. Groups of thirty plaintiffs were set =
to go to=20
trial every six months, beginning on January 23,=20
2006.
Veritas=20
filed its motion for summary judgment as to all remaining =
plaintiffs on=20
August 24, 2005, arguing both traditional and no-evidence =
grounds. =20
The traditional grounds for summary judgment included: 1) =
collateral=20
estoppel as to all of plaintiffs=3D =
claims;=20
2) strict liability and nuisance are inapplicable as a matter of =
law; 3)=20
tortious act and exemplary damages are not recognized causes of =
action=20
under Texas law; 4) no evidence exists of essential elements of =
fraud and=20
constructive fraud; 5) negligence and gross negligence must fail =
because=20
uncontradicted evidence establishes that plaintiffs=3D =
damages=20
could not have been caused by the seismic survey, and plaintiffs =
do not=20
have sufficient evidence to establish causation because their =
expert=20
testimony does not satisfy the Daubert/Robinson standards. =
The=20
grounds for the no-evidence motion for summary judgment included: =
1) as to=20
constructive fraud, no evidence of a legal duty owed to the public =
or a=20
fiduciary duty owed to plaintiffs, and no evidence that=20
Veritas=3Ds acts or=20
omissions caused plaintiffs=3D =
damages;=20
2) as to the fraud claim, no evidence of a false material =
representation,=20
that statements were made with knowledge of their falsity or =
recklessly=20
without determining their truth, or intent that plaintiffs acted =
upon the=20
representations, relied upon any representation, or suffered =
damage as a=20
result of any representation by Veritas; and 3) as to the =
negligence and=20
gross negligence claims, no evidence of causation. =
The=20
response by plaintiffs provided objections to Veritas=3Ds motions=20
for summary judgment, and legal arguments. Plaintiffs =
attached no=20
evidence to their response the motion for summary judgment. =
The=20
trial court found the motion for summary judgment to be =
meritorious and=20
granted it without specifying grounds. This appeal =
followed.
Analysis
I. =20
Plaintiffs Waived Several Issues By Briefing Waiver
The Rules=20
of Appellate Procedure require that an appellant=3Ds brief=20
Amust=20
contain a clear and concise argument for the contentions made, =
with=20
appropriate citations to authorities and to the =
record. Tex. R. App. P. 38.1(h) =
(emphasis=20
added); see Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.=20
App.CHouston=20
[14th Dist.] 2002, no pet.) (holding that issues not supported by=20
references to the record are waived, as are issues not supported =
by=20
authority).
Plaintiffs=20
have raised several issues that they do not brief or brief =
inadequately in=20
the body of their argument. Plaintiffs=3D =
issues on=20
appeal are:
1)=20
that it was error generally to =
grant the=20
summary judgment;
2)=20
that it was error as a matter of =
law and an=20
abuse of discretion to grant the summary judgment because=20
a)=20
there was evidence establishing =
genuine=20
issues of material fact on issues presented, and
b) =20
because the trial court misapplied the summary judgment rules and=20
standards; and
3)=20
The trial court erred and abused =
its=20
discretion in
a) =20
denying Plaintiffs=3D motion to continue =
the=20
summary judgment hearing
b) =20
overruling the objection that the summary judgment effort was =
premature,=20
and
c) =20
denying the motion to reconsider.
However,=20
Plaintiffs have waived issues 1, 2(b), and 3(c).
Under=20
their first issue presented, plaintiffs included a footnote citing =
to=20
Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. =
1970),=20
and to PlexChem International, Inc. v. Harris County Appraisal=20
District, 922 S.W.2d 930, 930B31 (Tex.=20
1996), for the proposition that a general issue stating that =
summary=20
judgment was in error allows argument of all reasons =
therefor. =20
However, this court has held that a general Malooly issue =
will only=20
preserve a complaint if the ground challenged on appeal is =
supported by=20
argument. Wortham v. Dow Chem. Co., 179 S.W.3d 189, =
198 (Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.). Since no argument was presented =
under=20
this general issue, it is waived. See id.
Plaintiffs=3D =
brief=20
provided extensive citations to case law regarding the appropriate =
standards to be employed in deciding a summary judgment. =
These=20
citations are not accompanied by any argument, other than a single =
sentence which says, AProper=20
application of these rules and standards establishes trial Court =
error and=20
requires remand for new trial on the merits.@ =20
Plaintiffs have supplied neither references to the record nor any =
analysis=20
to explain how the trial court erred in applying appropriate =
summary=20
judgment standards. Therefore, issue 2(b), complaining of=20
misapplication of summary judgment rules and standards, is also=20
waived. See id.
Finally,=20
issue 3(c) complains of error and abuse of discretion in denying =
the=20
plaintiffs=3D =
motion to=20
reconsider Veritas=3Ds motion=20
for summary judgment. After stating this issue in the issues =
presented, the motion to reconsider is never mentioned =
again. Issue=20
3(c) is, therefore, waived as well. See id. =
II. =20
Trial Court Did Not Err in Overruling Objection to Timing of the =
Summary=20
Judgment Motion
The=20
plaintiffs allege, in issue 3(b), that because the summary =
judgment=20
hearing was conducted four days before the discovery deadline, the =
trial=20
court erred and abused its discretion in overruling =
plaintiffs=3D =
objection=20
to the premature nature of the motion for summary judgment. =
In=20
support of this position, plaintiffs cite to the 1997 comment to =
Rule of=20
Civil Procedure 166a, which is meant to inform the construction =
and=20
application of the no-evidence summary judgment rule. See =
Tex. R. Civ. =
P. cmt.=20
166a. The comment provides, AA=20
discovery period set by pretrial order should be adequate =
opportunity for=20
discovery unless there is a showing to the contrary, and =
ordinarily=20
a motion under paragraph (i) would be permitted after the =
period but=20
not before.@ =
Id.=20
(emphasis added).
To begin,=20
we note that the comment does not inform us that a no-evidence =
motion for=20
summary judgment may never be brought before the discovery =
deadline; it=20
describes that as the ordinary case. See Tex. R. Civ. P. cmt. =
166a. =20
This language contemplates cases in which a court could =
appropriately=20
schedule a no-evidence motion before the discovery deadline. =
In our=20
opinion, this is such a case.
Texas=20
courts have now had ten years to consider what is an adequate time =
for=20
discovery under 166a(i), and we draw our guidance from them. =
In=20
determining whether a time period for discovery has been adequate, =
we look=20
to the nature of the cause of action, the nature of the evidence =
necessary=20
to controvert the no-evidence motion, and the length of time the =
case had=20
been active in the trial court. Specialty Retailers, Inc. =
v.=20
Fuqua, 29 S.W.3d 140, 145 (Tex. App.CHouston=20
[14th Dist.] 2000, pet. denied). Additional factors include =
the=20
amount of time the motion for summary judgment was on file, =
whether the=20
movant requested stricter time deadlines for discovery, the amount =
of=20
discovery that had already taken place, and whether the deadlines =
in place=20
were specific or vague. Id. We review the=20
court=3Ds=20
determination of the adequacy of the time for discovery under an =
abuse of=20
discretion standard. Id.
Here, the=20
case had been active in the trial court for approximately three =
years and=20
nine months when the motion for summary judgment was filed, and =
the active=20
petition had been on file for approximately two years and eight=20
months. Some of the evidence needed to create a fact issue =
could=20
have been developed with a simple affidavit, such as evidence of =
false=20
representations to support the fraud claim. Other evidence =
would=20
need to be developed by expert testimony, such as the causation =
evidence=20
necessary to rebut the no-evidence motion as to negligence, gross=20
negligence, fraud and constructive fraud. This evidence =
takes time=20
to develop, but as mentioned, the case had been active for nearly =
four=20
years, giving plaintiffs plenty of time to develop such=20
evidence.
The=20
summary judgment motion had been on file for four months before =
the=20
hearing. The record does not reflect, nor do plaintiffs =
assert, that=20
Veritas requested stricter discovery deadlines. The =
deadlines in=20
place were very specific, giving a date certain for discovery to =
be=20
completed. It appears that virtually all of the required =
discovery=20
had taken place, given that, according to Veritas, plaintiffs had=20
propounded no discovery for almost a year before the summary =
judgment=20
hearing. Additionally, one group of thirty plaintiffs had =
already=20
gone to trial and lost on the merits.
Each of=20
the above factors indicates that plaintiffs had an adequate time =
for=20
discovery. Therefore, we cannot hold that the trial court =
abused its=20
discretion in overruling the objection that summary judgment =
motion was=20
premature.
III. =20
No Error in Denying Motion for =
Continuance
Similarly,=20
plaintiffs argue that the trial court abused its discretion in =
denying the=20
Plaintiff=3Ds motion=20
to continue the summary judgment hearing. The trial=20
court=3Ds denial=20
of the motion for continuance is subject to a clear abuse of =
discretion=20
standard of review. Joe v. Two Thirty Nine Joint =
Venture, 145=20
S.W.3d 150, 161 (Tex. 2004). A court abuses its discretion =
if it=20
reaches a decision so arbitrary and unreasonable as to amount to a =
clear=20
and prejudicial error of law. Id. A =
nonexclusive list=20
of factors we consider in deciding whether a court has abused its=20
discretion in denying a motion for continuance to conduct further=20
discovery include: the length of time the case has been on file, =
the=20
materiality and purpose of the discovery sought, and whether the =
party=20
seeking the continuance has exercised due diligence to obtain the=20
discovery sought. Id.
Plaintiffs=20
have shown no additional discovery that they would conduct if they =
had the=20
time. Rather, they complain that the deposition of a key =
expert=20
happened too close to the summary judgment hearing, due to delay =
from the=20
erroneous suggestion of bankruptcy, and that he had not had the=20
opportunity to review and sign his deposition transcript. =20
Additionally, plaintiffs argue that the focus of the trial had =
been on: 1)=20
the jurisdictional challenge of three governmental entities until=20
mid-2004; 2) disposing of the claims of the thirty plaintiffs in =
the first=20
trial group; and 3) settlement negotiations resulting in =
resolution with=20
eight other defendants in July of 2004.
None of=20
plaintiffs=3D =
arguments=20
in the motion for continuance show what discovery was sought that =
would=20
necessitate a continuance. Plaintiffs pointed out that Dr.=20
Kiger=3Ds=20
deposition would be taken on December 16, 2005, three days before =
the=20
summary judgment hearing, but did not indicate why his testimony =
was=20
necessary, as compared to one of plaintiffs=3D =
other=20
experts. Nor did plaintiffs indicate why they could not =
obtain the=20
necessary evidence from Dr. Kiger in the form of an affidavit or =
report=20
before the summary judgment hearing. Furthermore, as =
previously=20
mentioned, the case had been active for nearly four years at the =
time of=20
the motion for continuance.
The fact=20
that the Afocus@ =
of the=20
trial until early 2005 had been on jurisdictional issues, =
settlement=20
negotiations, and taking the first group of plaintiffs to trial =
does not=20
mitigate the fact that plaintiffs should have had plenty of time =
to=20
conduct discovery. The central issues of the case did not =
change=20
since it was first filedCthat=20
seismic testing caused damage to plaintiffs=3D =
homes. Furthermore, the last of these events to =
occurCthe trial=20
of the first plaintiff groupCended at=20
the beginning of January 2005. This left almost twelve =
months for=20
plaintiffs to conduct further discovery which could have been used =
to=20
respond to the summary judgment motion. Given the amount of =
time=20
plaintiffs had to conduct discovery, and the failure to show =
exactly what=20
additional discovery was needed or its materiality, we hold that =
the trial=20
court did not abuse its discretion in overruling =
plaintiffs=3D =
motion=20
for continuance.
IV. =20
Grant of Summary Judgment on Negligence and Fraud Causes of Action =
Was=20
Appropriate
A. =20
No-Evidence Summary Judgment
Veritas=20
moved for no-evidence summary judgment on the negligence, =
gross=20
negligence, fraud and constructive fraud causes of action on the =
grounds=20
that plaintiffs had no evidence of causation, among other =
elements. =20
The plaintiffs=3D =
response=20
to summary judgment contained no evidence whatsoever. =
Clearly they=20
failed to create a fact issue in response to the no-evidence=20
motion. See Tex. R. Civ. P. =
166a(i). =20
B. =20
Traditional Motion for Summary Judgment
Veritas=20
also moved for summary judgment on traditional groundsCattaching=20
an affidavit from its own expert establishing that it caused no =
damage to=20
the homes in question, and also attacking the qualifications of=20
plaintiffs=3D =
expert=20
witnesses. In their brief to this court, plaintiffs appears =
to=20
complain that summary judgment was inappropriate because some of =
the=20
evidence used by Veritas in the traditional motion actually =
creates a fact=20
issue as to causation. Plaintiffs state that Veritas never=20
Aconclusively=20
negated one or more elements of Plaintiffs=3D =
claims.@ We=20
disagree.
1) =20
Standard of Review and Applicable Law
The=20
propriety of a summary judgment is a question of law which we =
review de=20
novo. LaGoye v. Victoria Wood Condo. =
Ass=3Dn, 112=20
S.W.3d 777, 785 (Tex. App.CHouston=20
[14th Dist.] 2003, no pet.). In a traditional motion for =
summary=20
judgment, the movant has the burden of showing that there is no =
genuine=20
issue of material fact and that it is entitled to judgment as a =
matter of=20
law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 =
(Tex.=20
2005). We consider the evidence in the light most favorable =
to the=20
non‑movant and resolve any doubt in the non‑movant's =
favor. =20
Id.
A movant's=20
right to summary judgment can be proved solely on the =
uncontroverted=20
testimony of an expert witness if the subject matter is such that =
a trier=20
of fact would be guided solely by the opinion testimony of =
experts, if the=20
evidence is clear, positive and direct, otherwise credible and =
free from=20
contradictions and inconsistencies, and could have been readily=20
controverted. Anderson v. Snider, 808 S.W.2d 54, 55 =
(Tex.=20
1991). The effect of seismic testing on structures is a very =
technical area and necessitates expert testimony as to whether the =
testing=20
caused the damage alleged in this case. See K-Mart Corp. =
v.=20
Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (AExpert=20
testimony assists the trier‑of‑fact when the =
expert=3Ds=20
knowledge and experience on a relevant issue are beyond that of =
the=20
average juror and the testimony helps the =
trier‑of‑fact understand the=20
evidence or determine a fact issue.@). =20
Therefore, Veritas=3Ds expert=20
testimony may establish the right to summary judgment if it is=20
uncontroverted, clear, direct and otherwise free from =
contradictions and=20
inconsistencies.
Expert=20
testimony may only be controverted by testimony from another=20
expert. See Anderson, 808 S.W.2d at 55 (ALay=20
testimony is insufficient to refute an expert=3Ds=20
testimony.@). =20
Once the party opposing expert testimony objects, the proponent =
bears the=20
burden of demonstrating its admissibility. E.I. du Pont =
de=20
Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. =
1995). =20
To qualify as an expert witness under Robinson and Rule of =
Evidence=20
702, three requirements must be satisfied: 1) the witness must be=20
qualified; 2) the proposed testimony must be scientific ... =
knowledge; and=20
(3) the testimony must assist the trier of fact to understand the =
evidence=20
or to determine a fact in issue. Id. at 556. =
The trial=20
court=3Ds decision=20
ruling on admissibility of experts is subject to an abuse of =
discretion=20
review. See Gammill v. Jack Williams Chevrolet, Inc., =
972=20
S.W.2d 713, 718B19 (Tex.=20
1998). This is the case within the context of a summary =
judgment=20
motion as well. See United Blood Servs. v. Longoria, =
938=20
S.W.2d 29, 30B31 (Tex.=20
1997).
2) =20
Summary Judgment Appropriate
In this=20
case, the affidavit of Veritas=3Ds expert=20
was competent summary judgment evidence because it was clear, =
direct, and=20
free from contradiction or inconsistency, and could have been =
readily=20
controverted by opposing evidence. =20
See Tex. R. Civ. =
P.=20
166a(c). Therefore, the burden fell to plaintiffs to raise a =
fact=20
issue by controverting expert testimony. In addition, in its =
motion=20
for summary judgment, Veritas had already challenged the =
qualifications of=20
plaintiffs=3D =
expert=20
witnesses, Charles Jenkins, Olan Adams, Gary Boyd, and Ebow =
Coleman. =20
As a result, plaintiffs bore the burden of establishing the =
admissibility=20
of any controverting expert opinions. See Robinson, =
923=20
S.W.2d at 557.
As=20
mentioned above, plaintiffs brought forth no evidence of their =
own, and=20
rely solely on evidence contained within Veritas=3Ds motion=20
for summary judgment to create a genuine issue of material =
fact. =20
Nowhere in the deposition excerpts from plaintiffs=3D =
experts=20
is there mention of the qualifications of Jenkins, Adams or =
Boyd. =20
Some of Ebow Coleman=3Ds=20
qualifications were contained within his excerpt in the motion for =
summary=20
judgment. However, he testified that while he was a =
materials=20
engineer and a Ascientist,@ =
he was=20
not an expert in structural engineering, geophysics, explosions or =
the=20
force required to crack foundations, seismic charges or vibroseis; =
nor was=20
he an expert in interpreting seismic data. Because no =
evidence=20
revealed the qualifications of three experts and the fourth lacked =
expertise in the areas most critical to establishing causation in =
this=20
case, we cannot say that the trial court would have abused its =
discretion=20
had it excluded all four of plaintiffs=3D =
witnesses=20
based on the failure to prove the qualifications of their expert=20
witnesses. See id.
Therefore,=20
because plaintiffs failed to raise a genuine issue of material =
fact in=20
response to either the no-evidence or traditional motions for =
summary=20
judgment, we hold that summary judgment in favor of Veritas was=20
appropriate on the fraud, constructive fraud, negligence, and =
gross=20
negligence causes of action. =20
Conclusion
Having=20
overruled each of appellant=3Ds issues,=20
we affirm the judgment of the trial court.
/s/ =20
Wanda McKee Fowler
Justice
Judgment=20
rendered and Substituted Memorandum Opinion filed September 27,=20
2007.
Panel=20
consists of Chief Justice Hedges and Justices Fowler and=20
Edelman.*
* =20
Senior=20
Justice Richard H. Edelman sitting by =
assignment.
Sandra=20
Adair, Ruth Aubuchon, Roy Bailey, Steven and Lynette Baker, Carl =
Barnett,=20
Nathan and Laura Barnett, Edward and Martha Bartholmey, John and =
Gerry=20
Bartlett, Janet L. Becich, Donald Benard, Jimmy and Roxie Berry, =
Gladys=20
Bimage, Katrina Bimage, Jimmy Ray Bishop, Sr., Deborah and Daniel =
Bly,=20
Dennis and Maria Boatright, Lois Bradley, Luna Bradley, Brad and =
Celia=20
Brahm, John and Martha Burmester, Don and Millicent Burns, =
Jacqulyn Cage,=20
Ricky A. Cappel, John and O. Lydia Castillo, Pamela Charles, =
Sigrid Clark,=20
James Coker, Odell and Bobbie Cooper, Raymond and Edith Cox, =
Feliciano and=20
Teodora Cruz, Sally and Don Cummings, Verlene Cummings, Robin =
Cunningham,=20
Linda Curl, Agatha Currie, David Dady, Everett and Mary Darden, =
Anitra=20
Davidson, Darrell and Anita Davis, Coy A. Dean, Allen and Lillian =
Denney,=20
Don and Suzanne Denson, Mike and Nita Duffey, Richard and Lillian =
Easley,=20
John and Agnes Eck, Raymond Edward, Dean and Carol Endsley, Louise =
K.=20
Evans, Laresa Evans, Brett Farmer, Charles and Rosalind Farmer, =
Peggy=20
Joyce Farmer, Gloria M. and Thomas T. Fisher, Estate of Joan Fox, =
John=20
Frazier, Ralph Frazier, Ola Freeman, Sherman Gentry, Daniel and =
Mary Goan,=20
Edward Goffney, Gerald Goffney, Armando and Bea Gonzalez, Greater =
New Hope=20
Missionary Baptist Church, James and Susan Green, Hamilton Guyton, =
Jr.,=20
Keith and Janice Guyton, Gladys Hall, Gladys E. Hall, James and =
Wilma=20
Hall, Paula Harris, Ronald and Janie Hartis, Perry Hatch, Raymond =
and=20
Janet Henriksen, Audrey J. Hill, Corliss Hill, Aaron L. and Joyce =
Hobbs,=20
Thelma Hobbs, Frances Hodge, Milton and Fay Hogg, Darlene Holmes, =
Beatrice=20
Hufstetler, Carol Ina, Staffon Isaac, Kirk A. Jackson, Walter E. =
Jackson,=20
James and Francine Jacks, Marie Jamison, John M. Jeffords, =
Katherine=20
Jefferson, James and Brenda Jenkins, Oliver Jenkins, Otis Jenkins, =
Ponce=20
de Leon Jenkins, Ronald C. Jenkins, Thelma Jenkins, Malcolm and =
Lois=20
Jennings, John D. and Lillie D. Johnson, Joyce Johnson, Van =
Johnson, John=20
P. and Susanne R. Johnston, Forestine Jones, Geneva Jones, Joe L. =
Jones,=20
Linda G. Jones, Maxine Jones, Retha Hobbs King, Gary and Linda =
Kirkland,=20
Karen Klock, Russel and Marilyn Knapp, Scott and Lana Koerber, Tom =
and=20
Elizabeth Kwarteng-Amaning, Sophia Lamb, Alcide and Pearl Lee, =
Laney and=20
Johnnie Lee, Mavis N. Lee, James Little, Myrtle Lee Little, Virgil =
Little,=20
Sr., Cheryl Anne Litton, Doris Lovings, Charles and Mildred =
Lymuel, Teri=20
Lymuel, Jack C. Maddox, Dennis and Carla Malone, Stella Martin, =
Morris and=20
Mary Mason, Robert and Linda Mason, Diana Masters, Jacob and =
Danielle=20
Mathews, George and Margaret Mathews, Thomas J. McCormick, Paul =
and Maria=20
McCorry, Raymond and Yolanda Medina, Patricia Ann Mills, Mary =
Mixon, B.=20
Moody, Barbara Mooney, Larry and Michelle Moore, Carlton Morgan, =
Freddie=20
Morgan, Dewey and Shirley Morris, Janet Lee Morris, Mt. Olivet =
Baptist=20
Church, D.R. Murphree Family Trust, Estelle Murphy, James Russell =
Nalepa,=20
Jesse and Irene Navarro, Estelle Murphy O=3DNeal,=20
Margaret Osborn, Richard and Kimberly Olmos, Will Thomas Palmer, =
David and=20
Anna Payne, Jerri Pendleton, Christine Peterson, Doyle Peterson, =
Bill and=20
Rowena Porter, Juan and Wilma Prado, Debra and Johnny Lee Praylor, =
Edna=20
Praylor, Walter and Pamela Presley, Joyce Price, William H. Price, =
Sr.,=20
Kathy and Michael Prothro, Jacquelin Pruden, Sergio and Giselle =
Quintero,=20
Ted E. and Norma J. Ramirez, Tashonda Randle, Jesse and Denice =
Rendon,=20
John Reistino, Karen Remmert, Janeth Rhodes, James and Camille =
Rhone, Cruz=20
Rivera, James N. Roach, Wilbert and Rosie Robinson, Gary Dwayne =
Rodgers,=20
Manuel and Esther Rodriguez, Gertrude Rollins, Alan and Sharon =
Rowsey,=20
Francisco R. Ruiz and Rosa E., David Sack, Barton C. Schindler as =
Legal=20
Representative for Maurice S. Schindler, Patricia A. Schwalenberg, =
Jack=20
and Diane Schwartz, Lisa Segovia, Prem K. and Nitina Sehgal, =
Elnita=20
Simmons, Charles and Gwendolyn Simmons, Sr., Lura Skeel, Margaret =
Slater,=20
Darren W. Smith, Shirley and Carl Smith, Jeff Smyers, Sharon =
Spates, Kathy=20
D. Spells, St. James A.M.E. Church, Jody Starr, Harold and =
Virginia=20
Stephenson, Antoinette and Oliver Stewart, Johnny and Sharon =
Stout, Wayne=20
and Patricia Strelsky, Elliot W. and Brenda Sturman, Marla =
Surface, Jane=20
Surman Grace Talas, Gerald E. Taylor III, Michael and Susan =
Taylor, Robert=20
D. and Diana A. Taylor, Janet Thompson, Arthur and Virginia =
Tijerina, Tony=20
Trainer, Gil and Carroll Valdez, Edward and Glinda Van Malden, =
Donald and=20
Julie Vaughan, Terry and Cindy Vaughn, Barbara Walker, Etta =
Warner,=20
Juanita Warren, Leon and Nelva Washington, Alicia and Milton Wade =
White,=20
Christina Whitlock, Alsace L. Williams, Bennie Williams, Daisy =
Williams,=20
David and Miriam Williams, Lillie Williams, Lucinda Williams, =
Willie and=20
Charlotte Williams, Winston and Ernestine Williams, Sharyn Willis, =
Gisele=20
Wilson, Patricia Wilson, Margaret Witherspoon, Elnora Woods, =
Rosemary=20
Young, Willie Mae Young.
A complete list of appellants is =
attached=20
to this opinion as Appendix A.
Neither below nor on appeal did =
plaintiffs=20
object to the expert=3Ds affidavit on the basis of =
qualifications,=20
reliability or relevance, or otherwise claim it was deficient, so =
we need=20
not consider whether it satisfied all admissibility requirements. =
See=20
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. =
1998).=20
As mentioned above, plaintiffs =
also=20
asserted causes of action on private nuisance, tortious act, =
strict=20
liability, and exemplary damages. It is not clear at all =
from=20
plaintiffs=3D brief whether they are appealing =
summary judgment=20
on these issues. To the extent these causes of action were =
not=20
waived, we note briefly that we cannot find a single Texas case=20
recognizing a cause of action for Atortious act.@ Since this cause of action does =
not exist=20
in Texas, summary judgment was appropriate. Similarly, the =
type of=20
seismic testing done in this case will not support a cause of =
action for=20
strict liability or negligence in Texas. See Klostermann =
v.=20
Houston Geophysical Co., 315 S.W.2d 664, 665B68 (Tex. Civ. App.CSan Antonio 1958, writ ref=3Dd). Traditional summary judgment =
was=20
appropriate on those grounds as well. Since summary judgment =
was=20
appropriate on all other causes of action, it was appropriate on =
the=20
purported cause of action for exemplary damages as well, since =
exemplary=20
damages are unavailable unless there is entitlement to actual =
damages.=20
Nabours v. Longview Sav. & Loan Ass=3Dn, 700=20
S.W.2d 901, 904 (Tex. 1985). =20
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