Opinion
No. 05-16-00620-CV
06-27-2017
JENNIFER CHASE, Appellant v. EMMANUEL PACKING AND NEENA MALIK PACKING, AND GHARBIEH & ASSOCIATES LLC, AND SUBHI GHARBIEH, INDIVIDUALLY, Appellees
On Appeal from the 95th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-06915
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright
Appellant Jennifer Chase rented an apartment owned by the Packings. Gharbieh & Associates LLC managed the property; Subhi Gharbieh was one of its brokers. Chase claims that rain leaked through an apartment window, causing a mold infestation that made her ill. She sued the Packings for premises liability, negligence, gross negligence, and failure to repair or remedy property. The Packings filed two no-evidence summary judgment motions. Chase filed two motions for continuance. The trial court granted the Packings' summary judgment motions, but not Chase's motions for continuance. She argues on appeal that this was error. We affirm.
Although Chase lists Gharbieh & Associates LLC and Subhi Gharbieh as appellees in her brief, she does not seek any relief from the trial court's order granting their separate motion for summary judgment. Consequently, we do not include these parties in our judgment.
Chase presents her argument in two issues. She contends that the trial court constructively denied her motions when it granted summary judgment, and that this was error. She also argues that the trial court should have denied the Packings' summary judgment motions.
I. Summary Judgment
We review grants of summary judgment de novo. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). A no-evidence summary judgment motion must allege that there is no evidence for at least one essential element of a claim or defense on which the opponent would have the burden of proof at trial. TEX. R. CIV. PROC. 166a(i). The motion must state the elements for which there is no evidence. Id. It must also allege that adequate time for discovery has passed. Id. The party opposing the motion must present evidence raising a genuine issue of material fact to support the challenged elements. Id. In reviewing a no-evidence summary judgment motion, we consider the evidence presented by the motion and response in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence supporting the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).
A cause of action relating to mold exposure constitutes a toxic tort cause of action. Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 120 (Tex. App.—Dallas 2009, pet. denied). Toxic tort cases require proof of both "general" and "specific" causation. Id. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1997). To preclude the Packings' no-evidence summary judgment on the specific causation element of her claims, Chase was required to present more than a scintilla of probative expert evidence showing that exposure to the mold was a substantial factor in causing her illness. See Cerny v. Marathon Oil Corp., 480 S.W.3d 612, 621-22 (Tex. App.—San Antonio 2015, pet. denied) (applying Havner in summary judgment context). Havner also requires the plaintiff to present some evidence excluding other plausible causes of the injury with reasonable certainty. Id. (citing Havner, 953 S.W.2d at 720).
In her appellate brief, Chase argues that she provided adequate evidence in support of her claims, citing Foster v. Denton Indep. School Dist., 73 S.W.3d 454, 463 (Tex. App.—Fort Worth 2002, no pet.). She contends that the trial court should have denied the Packings' motions for summary judgment because Chase offered more than a mere scintilla of probative evidence. She argues in her brief that two pieces of evidence support her claims, a medical report prepared by a physician, and a mold inspection and testing report prepared by a mold remediation business. Chase contends that the medical report establishes causation and harm, which are essential elements of her premises liability and negligence claims. She argues that the mold report establishes appellees' duty to her, which is a concept related to essential elements of her claims for gross negligence and failure to repair or remedy. We will discuss the two reports and the corresponding causes of action in turn.
A. Medical Report: Premises Liability and Negligence
In the section of the medical report titled "HISTORY OF PRESENT ILLNESS," the physician wrote that Chase "notes in her history that in October she moved into a new residence and since that time, she thinks that she is being exposed to a considerable amount of mold related to that residence." He also noted that she had a history of pneumonia, diabetes, and smoking. The "ASSESSMENT AND PLAN" section provided in relevant part: "Hypersensitivity pneumonitis. I assume this is the underlying etiology given her history of symptom development in November, a few weeks after moving into her home in October with likely exposure to mold within her home. I think she needs a change of her home environment." The physician discussed a possible course of medical treatment for this condition, but concluded, "overwhelmingly I think a little bit of time away from the causative agent, she should have profound reversal of her hypersensitivity pneumonitis if in fact that is the case." The physician acknowledged that "it is possible that she has pneumonia or some other bacterial etiology." He also stated that the symptoms he associated with hypersensitivity pneumonitis might have been caused by severe sepsis. The physician did not conclude that Chase suffered from hypersensitivity pneumonitis, the condition that she alleges she developed from exposure to mold in the Packings' apartment. On the contrary, he acknowledged that she might have a different illness, one caused by something other than mold. And his assessment was conditioned on information appellant provided to him.
Chase offered no evidence other than the medical report to establish that mold caused her illness. Because there is no evidence that could exclude or rule out potential causes of symptoms and illness other than mold, Havner, 953 S.W.2d at 720, and no evidence that could negate plausible causes other than mold, id., Chase did not provide a scintilla of evidence proving causation. As Chase explained in her original petition, proximate causation is an essential element of a claim for premises liability, CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 1999), and negligence, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). Because she did not provide a scintilla of evidence of an essential element of those claims, the trial court did not err in granting summary judgment on them.
B. Mold Report: Gross Negligence and Failure to Repair or Remedy
Chase notes in her appellate brief that a mold inspection and testing report recommended that a licensed mold contractor conduct a remediation under formal procedures. She writes, "Any reasonable homeowner would find that a report such as this which recommends remediation of a dangerous mold spore by a professional with written protocols must create a duty to occupants living in such a residence [and] put the owner on notice of foreseeable injuries due to the toxicity of the spores." However, in Chase's original and first amended petitions, as well as her responses to the Packings' summary judgment motions, Chase did not allege that she informed appellees about this report. She has alleged that she emailed Subhi Gharbieh to inform him of a "possible mold problem," and that she emailed him a couple of days later to tell him that she would "need to have potential mold situation tested ASAP," but there is no evidence of these emails in the record. Instead, there is evidence only that Chase told appellees there was a water leak. On appeal, she does not try to explain how the water leak imposed a duty on the Packings, or how the water might have harmed her. In any event, Chase makes no attempt to explain how the mold report could have put the Packings on notice of the presence of mold, or imposed a duty on them to remediate it, and we have found no record evidence that could.
An essential element of Chase's gross negligence claim was that appellees proceeded with actual, subjective awareness of the extreme risk created by their conduct. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11) (West Supp. 2016) (definition of "gross negligence"). There is no evidence that the Packings proceeded with awareness of the mold. Consequently, the trial court did not err in granting the Packings' motions for summary judgment on appellant's gross negligence claim.
For a similar reason, the trial court did not err in granting summary judgment on the Packings' claim for failure to repair or remedy. An essential element of this claim is that Chase had to show she gave the Packings notice to repair or remedy a condition that materially affected the health of an ordinary tenant. TEX. PROP. CODE ANN. § 92.056(b)(2) (West 2016). There is no evidence that Chase gave the Packings notice to repair or remedy the mold.
II. Continuance
Chase filed a verified motion for continuance on January 22, 2016. She filed a motion to continue on February 12, 2016, the same day a hearing was held on the Packings' motions for summary judgment. The trial court granted the Packings' motions for summary judgment on April 10, 2016. The court did not rule on Chase's motions.
A. January Motion for Continuance
We review the denial of a motion for continuance for abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). In deciding whether the trial court has abused its discretion, three nonexclusive factors are helpful: 1) the length of the time the case has been on file; 2) the materiality and purpose of the discovery sought; and 3) whether due diligence was exercised in obtaining discovery. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). Chase argues that "the complexity of the case did not allow for discovery to be completed in the short time allotted by the trial court—six months before expert designations."
Texas Rule of Civil Procedure 166a(c) requires that a motion for summary judgment be filed and served at least twenty-one days before the time specified for hearing. We have held that it is generally not an abuse of discretion to deny a motion for continuance if the party has received the twenty-one days' notice required by Rule 166a(c). Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 235-36 (Tex. App.—Dallas 2000, pet. denied). Chase does not allege that appellees failed to give her this notice. Nor does she try to explain why her motion should be an exception to the general rule we articulated in Finlan.
In considering a motion for continuance, a trial court can presume that a plaintiff has investigated the case prior to filing. Id. at 36. Chase filed suit four months after the mold inspection, and over four months after the medical examination. The trial court granted the Packings' summary judgment motions over nine months after she filed suit. Chase cites no legal authority, and we have found none, that would lead us to conclude that her case was on file for so short a time that the court abused its discretion in failing to grant her motion for continuance.
B. February Motion to Continue
Chase contends that the trial court's failure to grant her motion to continue was an abuse of discretion. However, she does not present any argument in support of that contention. She cites Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) for the proposition that a trial court's abuse of discretion is apparent when the court appears to act without reference to any guiding rules and principles, but she does not try to explain how the trial court might have acted in that way. We have found no legal authority that could lead us to conclude that the trial court abused its discretion in failing to grant her motion to continue.
We overrule both of Chase's issues and affirm the trial court's orders granting the Packings' no-evidence motions for summary judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE 160620F.P05
JUDGMENT
On Appeal from the 95th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-15-06915.
Opinion delivered by Justice Boatright; Justices Fillmore and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Emmanuel Packing and Neena Malik Packing recover their costs of this appeal from appellant Jennifer Chase. Judgment entered this 27th day of June, 2017.