Opinion issued August 6, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00965-CV
EDWARD FOUSSADIER, Appellant
V.
TEXAS DEPARTMENT OF TRANSPORTATION and
TRIPLE B SERVICES, LLP, Appellees
On Appeal from the 55th Court of Harris County
Harris County, Texas
Trial Court Case 2016-03307
MEMORANDUM OPINION
Appellant Edward Foussadier sued Triple B Services (“Triple B”) and the
Texas Department of Transportation (“TxDOT”) after he was injured in a bicycle
accident, which he alleged was caused by a road defect. Foussadier brought
claims for negligence and breach of implied warranty against Triple B, alleging the defect was created by Triple B’s work on the road. The trial court granted
take-nothing summary judgment against Foussadier and severed his claims
against Triple B. We affirmed the trial court’s summary judgment, and the
Supreme Court of Texas denied Foussadier’s petition for review. Foussadier v.
Triple B Servs., LLP, No. 01‑18‑00106‑CV, 2019 WL 2127604, at *1 (Tex.
App.—Houston [1st Dist.] May 16, 2019, pet. denied) (mem. op.) (Foussadier I).
Foussadier then re-pled the same claims against Triple B. Triple B moved
for summary judgment on the grounds of res judicata and the statute of
limitations. The trial court granted summary judgment and dismissed
Foussadier’s claims with prejudice. The court later denied Foussadier’s motion
for reconsideration and again severed his claims against Triple B. We affirmed
the trial court’s summary judgment, and the Supreme Court of Texas denied
Foussadier’s petition for review. Foussadier v. Triple B Servs., LLP, No.
01‑21‑00024‑CV, 2022 WL 3589497, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 23, 2022, pet. denied) (Foussadier II).
In this third iteration, Foussadier again re-pled the same claims against
Triple B. Triple B moved for and won on summary judgment, and the trial court
sanctioned Foussadier and his counsel. On appeal, Foussadier contends that the
trial court erred by denying his motion for reconsideration, granting Triple B’s
motion for summary judgment, and assessing sanctions.
2
Foussadier also brought a premises liability claim against TxDOT. After
Foussadier II, the trial court granted TxDOT’s plea to the jurisdiction and noevidence summary judgment motion. The trial court denied Foussadier’s motion
for spoliation instruction. On appeal, Foussadier contends that he produced
sufficient evidence to create a fact issue regarding TxDOT’s alleged gross
negligence to waive sovereign immunity. He also contends that the trial court
erred by denying his motion for spoliation instruction.
We affirm.
Background
This Court has discussed the facts underlying this lawsuit in its two earlier
opinions. Foussadier I, 2019 WL 2127604, at *1; Foussadier II, 2022 WL 3589497,
at *1. In short, between 2012 and 2014, Triple B performed roadwork on FM 2978
near Tomball, Texas, a road owned and maintained by TxDOT. In 2015, Foussadier
was riding his bicycle on the stretch of road where Triple B had worked when his
wheel fell into a hole. Foussadier lost control of his bicycle, fell, and broke his
collarbone. He brought a premises liability claim against TxDOT and negligence
and breach of warranty claims against Triple B.
TxDOT filed a combined plea to the jurisdiction and no-evidence summary
judgment motion, asserting there was no evidence TxDOT was negligent under a
licensee theory of recovery, but the trial court denied TxDOT’s motion. Triple B
3
moved for no-evidence and traditional summary judgment, and the trial court
granted Triple B’s no-evidence motion and denied Foussadier’s motion for
reconsideration.
Foussadier’s claim against TxDOT was stayed for several years while he
pursued multiple appeals involving Triple B. After the Texas Supreme Court denied
review in Foussadier II, Foussadier amended his petition twice, asserting the same
claims based on the same facts underlying the original lawsuit against Triple B but
alleging that there was a material change based on a new expert report and expert
depositions.
As in Foussadier II, Triple B moved for summary judgment based on res
judicata and the statute of limitations. Triple B also asked the trial court to sanction
Foussadier and his counsel, Carl Gordon, for continuing to pursue claims clearly
precluded by res judicata. The trial court granted summary judgment in favor of
Triple B and imposed a $10,000 sanction against Foussadier and Gordon.
After Foussadier II, TxDOT filed another plea to the jurisdiction and noevidence summary judgment motion, this time asserting that the Recreational Use
Statute1 applied and no evidence showed that TxDOT was grossly negligent under a
trespasser theory of recovery. Foussadier moved for a spoliation instruction against
1
TEX. CIV. PRAC. & REM. CODE §§75.001–75.007.
4
TxDOT. The trial court granted TxDOT’s motion for summary judgment and plea
to the jurisdiction and denied Foussadier’s motion for spoliation instruction.
Triple B
In two issues, Foussadier contends the trial court erred by denying his motion
for reconsideration of Triple B’s no-evidence motion for summary judgment and
granting Triple B’s motion for summary judgment and motion for sanctions.
A. Standard of Review
We review a motion for reconsideration of a no-evidence summary
judgment for an abuse of discretion. See Mullins v. Martinez R.O.W., LLC, 498
S.W.3d 700, 705 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We review de
novo the trial court’s ruling on a motion for summary judgment. Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A
party moving for traditional summary judgment bears the burden of showing that
no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); see Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215–16 (Tex. 2003).
We review a sanctions order for an abuse of discretion. Nath v. Tex.
Children’s Hosp., 446 S.W.3d 355, 361 (Tex. 2014). Although we view
conflicting evidence favorably to the trial court’s decision, we independently
review the entire record to determine whether the trial court abused its discretion.
5
Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020). “[We]
may reverse the trial court’s ruling only if the trial court acted without reference
to any guiding rules and principles, such that its ruling was arbitrary or
unreasonable.” Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
B. We have no jurisdiction to decide Foussadier’s first issue
Foussadier’s first issue, complaining that the trial court erred by denying
Foussadier’s motion for reconsideration of Triple B’s motion for summary
judgment, is a collateral attack on this Court’s May 16, 2019 judgment in Foussadier
I. In Foussadier I, this Court affirmed the trial court’s denial of Foussadier’s motion
for reconsideration. Foussadier I, 2019 WL 2127604, at *1. Here, Foussadier again
contends that the trial court erred by denying his motion for reconsideration. Our
plenary power over the judgment in Foussadier I has long since expired. See TEX.
R. APP. P. 19.1. After our plenary power expires, we cannot vacate or modify our
judgment. TEX. R. APP. P. 19.3. “Further, it is well settled that an intermediate
appellate court in Texas has no power to substantively alter its judgment after our
supreme court denies review.” Steadfast Funding, LLC v. 2017 Yale Dev., LLC, No.
01‑23‑00500‑CV, 2024 WL 4846842, at *2 (Tex. App.—Houston [1st Dist.] Nov.
21, 2024, no pet.). Accordingly, we dismiss Foussadier’s first issue for want of
jurisdiction.
6
C. Res judicata applies to Foussadier’s contention the trial court erred
granting Triple B’s motions for summary judgment
Foussadier’s fifth and sixth amended petitions allege the same claims based
on the same facts as his prior petitions. Triple B moved for summary judgment on
Foussadier’s claims based on res judicata and the statute of limitations, and the trial
court granted summary judgment in favor of Triple B.
“Res judicata, or claims preclusion, prevents the relitigation of a claim or
cause of action that has been finally adjudicated, as well as related matters that,
with the use of diligence, should have been litigated in the prior suit.” Barr v.
Resolution Trust Corp. ex. rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex.
1992). To be entitled to summary judgment based on res judicata, Triple B was
required to prove: “(1) a prior final determination on the merits by a court
of competent jurisdiction; (2) identity of parties or those in privity with them;
and (3) a second action based on the same claims as were or could have been
raised in the first action.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010).
On appeal, Foussadier does not contest that Triple B proved its res judicata
defense as a matter of law. See Foussadier II, 2022 WL 3589497, at *1. But he
argues that because of a change in material facts, res judicata does not apply. The
Texas Supreme Court has recognized that a change in material facts between the
first judgment and the second suit is a limited exception to res judicata. See
7
Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 950 (Tex. 1990).
The rationale underlying the Marino exception is that a judgment cannot affect
subsequently arising rights and duties. Id. Here, though, there are no subsequently
arising rights or duties. See Foussadier II, 2022 WL 3589497, at *1.
Foussadier contends that expert reports and deposition testimony obtained in
discovery change the material facts because they included new evidence that raises
a genuine issue of material fact on causation. Triple B responds that while these
alleged facts may have been discovered after the final judgment in Foussadier II,
they were not new facts warranting the application of the narrow Marino exception.
We agree. There is a clear distinction between facts that occur after a final judgment
which alter the parties’ rights and new discovery of old facts after a final judgment
is entered. Any fact which supports Foussadier’s claim that Triple B’s actions caused
Foussadier’s injury necessarily existed at the time he was injured. Foussadier could
have discovered these facts prior to final judgment, and a lack of diligence in
obtaining the evidence on which he now relies does not give rise to a new right to
reassert claims that have already been adjudicated. See Barr, 837 S.W.2d at 631 (“A
subsequent suit will be barred if it arises out of the same subject matter of a previous
suit and which through the exercise of diligence, could have been litigated in a prior
suit.”). Otherwise, litigation would never conclude, reducing the res judicata
doctrine to a mere misnomer.
8
We conclude that the trial court correctly granted Triple B’s motion for
summary judgment based on res judicata.
D. The trial court did not err in imposing sanctions against Foussadier and
his counsel
Foussadier next contends that the trial court erred in imposing sanctions
against him and his counsel. To preserve a complaint for appellate review, the record
must show the appellant made the complaint to the trial court in a timely request,
objection, or motion that states the grounds for the complaint with such specificity
to make the trial court aware of the complaint. TEX. R. APP. 33.1(a). “If a sanctioned
party does not complain of the sanctions against him in the trial court or ask the trial
court to reconsider, he waives any complaint about the trial court’s actions.” In the
Estate of Kristy Marie Turnbow, Deceased, No. 01‑24‑00837‑CV, 2026 WL
1870825, at *6 (Tex. App.—Houston [1st Dist.] June 30, 2026, no pet. h.) (mem.
op.). Foussadier did not present this complaint to the trial court and thus failed to
preserve it for appellate review. See TEX. R. APP. 33.1(a); Valdez v. Valdez, 930
S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 1996, no writ).
We overrule Foussadier’s second issue.
9
TxDOT
In two additional issues, Foussadier contends that the trial court erred in
granting TxDOT’s motion for summary judgment and plea to the jurisdiction and
denying Foussadier’s motion for a spoliation instruction.
Plea to the Jurisdiction
A. Standard of Review
A plea to the jurisdiction is a procedural vehicle used to challenge a court’s
subject-matter jurisdiction over a claim. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225–26 (Tex. 2004). We review whether a court has subject-matter
jurisdiction under a de novo standard of review. Suarez v. City of Tex. City, 465
S.W.3d 623, 632 (Tex. 2015). “In doing so, we exercise our own judgment and
redetermine each legal issue, without giving deference to the lower court’s
decision.” City of Houston v. Houston Firefighters’ Relief & Ret. Fund, 667 S.W.3d
383, 395 (Tex. App.—Houston [1st Dist.] 2022, pet. denied).
“[I]f a plea to the jurisdiction challenges the existence of jurisdictional facts,
we consider relevant evidence submitted by the parties when necessary to resolve
the jurisdictional issues raised, as the trial court is required to do.” Miranda, 133
S.W.3d at 227. When reviewing a plea to the jurisdiction in which disputed evidence
implicates both the court’s subject-matter jurisdiction and the merits of the case, we
consider relevant evidence submitted by the parties to determine whether a fact issue
10
exists. Suarez, 465 S.W.3d at 632–33. “We take as true all evidence favorable to the
nonmovant, indulge every reasonable inference, and resolve any doubts in the
nonmovant’s favor.” Id. at 633. If the evidence creates a fact question regarding
jurisdiction, then the plea must be denied, but if the evidence fails to raise a question
of fact regarding jurisdiction, the plea must be granted as a matter of law. Id.
B. Analysis
“[S]overeign immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have been sued unless the
state consents to suit.” Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act
(TTCA) is a limited waiver of sovereign immunity. Id.; see generally TEX. CIV.
PRAC. & REM. CODE §§ 101.001–101.109. Under the TTCA, a governmental unit
may be liable for a premises defect only “if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. &
REM. CODE § 101.021(2).
Under the Recreational Use Statute, if a person engages in recreation on
premises owned, operated, or maintained by a governmental unit, the governmental
unit owes that person only a duty owed to a trespasser on the premises. See TEX.
CIV. PRAC. & REM. CODE § 75.002(f). “The statute effectively requires for liability
either gross negligence or an intent to injure.” Stephen F. Austin State Univ. v. Flynn,
228 S.W.3d 653, 659 (Tex. 2007). The statute’s list of activities that constitute
11
“recreation” include “bicycling and mountain biking.” TEX. CIV. PRAC. & REM.
CODE § 75.001(3)(M).
Here, Foussadier was bicycling on a TxDOT controlled road when his injury
occurred. As a person engaged in recreation, TxDOT owed him only the duty of care
owed to a trespasser. See TEX. CIV. PRAC. & REM. CODE §§ 75.001(3)(M), 75.002(f);
Univ. of Tex. v. Garner, 595 S.W.3d 645, 650 (Tex. 2019) (per curiam). Thus, for
sovereign immunity to be waived, Foussadier must prove that TxDOT acted with
“gross negligence, malicious intent, or bad faith.” Suarez, 465 S.W.3d at 627; see
TEX. CIV. PRAC. & REM. CODE § 75.002(d).
In his live pleading, Foussadier alleges that TxDOT was grossly negligent.
Gross negligence requires a showing of two elements:
(1) viewed objectively from the actor’s standpoint, the act or omission
complained of must involve an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and
(2) the actor must have actual, subjective awareness of the risk
involved, but nevertheless proceeds in conscious indifference to the
rights, safety, or welfare of others.
Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014); TEX. CIV. PRAC & REM.
CODE § 41.001(11).
As to the objective element, Foussadier contends that TxDOT’s failure to
repair or warn Foussadier of the road defect posed an extreme degree of risk. But
Foussadier does not cite any authorities in support of this contention, so it is open to
12
question whether he has complied with Texas Rule of Appellate Procedure 38.1. See
TEX. R. APP. P. 38.1.
But we need not pass on that question, because even if we were to conclude
that Foussadier briefed this point sufficiently, Foussadier did not raise a fact issue
that TxDOT’s failure to warn or repair the road defect involved an “extreme degree
of risk.” An extreme degree of risk is “a threshold significantly higher than the
objective ‘reasonable person’ test for negligence.” Palais Royal, Inc. v. Gunnels, 976
S.W.2d 837, 851 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d by agr.).
“Extreme risk is a function of both the magnitude and the probability of the
anticipated injury to the plaintiff.” Id. The extreme degree of risk element is not
satisfied by the remote possibility of injury or even a high probability of minor harm
but requires the likelihood of serious injury to the plaintiff. U-Haul Int’l, Inc. v.
Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Texas courts have consistently held that
such omissions as the ones here amount to ordinary negligence at most, not the
heightened standard of gross negligence. See Wal-Mart Stores, Inc. v. Alexander,
868 S.W.2d 322, 327 (Tex. 1993); Tex. Dep’t of Transp. v. Bagg, No.
08‑23‑00148‑CV, 2024 WL 4533568, at *7 (Tex. App.—El Paso Oct. 21, 2024, pet.
denied) (mem. op.). Because Foussadier failed to raise a fact issue on the objective
element of gross negligence, we need not reach the subjective element.
13
We hold that the trial court did not err in concluding that TxDOT was immune
from suit. And because there is no subject-matter jurisdiction over Foussadier’s
claims against TxDOT, we do not reach his spoliation complaint.
Conclusion
We affirm the trial court’s judgment.
Clint Morgan
Justice
Panel consists of Justices Gunn, Caughey, and Morgan.
14