Opinion issued October 9, 2026.
In the
Court of Appeals
for the
First District of Texas
NO. 01-22-00827-CV
JASON ALEXANDER, JOE MCADAMS, ELIAS ABRAHAM, LAWRENCE
ANDERSON, LISA ASTIN, JORGE ATENCIO, DAVID AYRE, DOUGLAS
AUSTIN, JAMES BARCLIFT, MARTIN BENSON, MARIA BLACKWELL,
THOMAS BOEHME, CHRISTOPHER BOYER, SCOTT CALL, ORLANDO
CAMARILLO, STEPHEN CAPPS, CARLOS AREVALO-GARZA,
GEORGE COBB, TERESA CONRAD, JIMMY CRANE, LEE DAVIS,
DUSTIN DE LOS SANTOS, JAMES DIEMER, LAWRENCE DIO, ROBERT
DIXON, TIMOTHY DIXON, DWAYNE DUKE, DARLENE DYMOND,
DAVID EIDSMOE, MARTIN DURAND, DEAN CORBETT, HILARY
ELGART, WILLIAM EVANS, CESAR HERNANDEZ GOMEZ, DEAN
FANGUY, WOLFGANG FAUST, SONYA FLOWERS, GREG FOLKS,
MITCH FUENTES, ROGELIO GAMIZ, ROBERTO GARCIA-HOOKES,
RONALD GILCREASE, RAUL GIORGI, MICHAEL GIOVINAZZO,
ARCHIE GREGORY, SALLY GRIFFIN, DREW GOODBREAD, HECTOR
GUIZAR-BLANCO, KENNETH HAYEK, LARRY HEIGHINGTON, PAUL
HEIMLICH, FERNANDO HESS, DONALD HICKEY, PATRICK HOLUB,
SETH HOVER, MICHAEL HOWARD, ALEXIS HURST, COSME
IGLESIAS, JOHN HARRIS, KERRY HOELLER, SEAN IRBY, TRACY
JACKSON, DAVID KANDT, DEBRA KING, KENNETH LAUDUCCI,
JOSEPH LOCKE, CARLOS LOPEZ, TAMMY FOSTER, DAVID MA,
JACOB MAGIN, HARALD PAULI, MATTHEW MARTIN, LESLIE
MARTINEZ, MCWILLIAM MALAVE, GAIL MANISCALCO, PAUL
MARSTON, DALLIS LINDLEY, JAMES MARTIN, GABOR MARQUEZ,
BLAKE HARRIGAN, KEVIN REINOSO, ANTHONY PADILLA, KONRAD
IZBINSKI, TORSTEN SCHMIDT, ROBERT MCCARTHY, LUCIO
ELIZONDO, CHRISTOPHER MCKEE, CALEB MCLAUGHLIN, GLENN
MCMILLEN, VIVEKANAD SISTA, JEFF MOSS, WENDELL CLEAVER,
RISELEA MCLEROY, JASON MILESKI, ROBERTO OLIVAS, RANDY
MOORMAN, JAMES MUELLER, PATRICIA NOACK, MATTHEW
NOVAK, DAVID ODORIZZI, TRAVIS THOMAS, JERE BRUBAKER,
JEREMY OEHMEN, STAN OKAZAKI, NGIABI GICUHI, BERNARD
OTTEN, RICARDO PALMA, OSCAR MUNOZ PAZ, OLGA PERRY,
GEORGIE PETERSEN, PENNY PRATER, GERARDO RAMIREZ,
TIMOTHY RENNIE, DAGOBERTO MORA, MICHAEL RICHEY,
KATHLEEN RIZZO, RICHARD ROACH, LUIS MARROQUIN
ESPINOSA, KAZEM SALEHIAN, ARTHUR SALERNO, HARDY BAKER,
SUSAN SARAZEN, MARC CRUDGINGTON, CLINTON SCOTT, JAMES
SEAMANS, ESTEBAN SEANEZ, SAUL SELLINGER, TIMOTHY
SERRANO, ROY SLAY, MARIUS DOYLE, TIMOTHY SMITH, MIRZA
BAIG, EDGARDO RAMOS-TENORIO, JAMES SOEDER, JOSEPH
MCGAUGH, EDWARD STOWE, JOSEPH EFFERT, ERIC TABANOU,
RILEY ARCHER, AVINASH TAWARE, CHRISTOPHER BACK, BLYTHE
THOMAS, LAKIA CHAMPAGNE, WILLIAM THOMPSON, ANIL
PALASAMUDRAM, LEO TEPLITSKILY, JEREMY TRAVIS, LUIS HESS,
TIMOTHY LEE, TIBBS FAMILY TRUST, TIMOTHY VAN OOST,
CAROLINA GARCIA, THILO VOSS, DAVID MINOR, JERRY WEBB,
DEBRA WHITLA, THOMAS WOJAHN, TIMOTHY YANAVAGE, YOUNG
LEE, MANUEL ABREU VARGAS, JOSEPH XIE, FERNANDO ZAVALA,
ALEX ZENGO, WALTER FENTON, KENNETH BECK, JASON BRADEN,
RICHARD BUKOVICH, KRISHNANAND ANANDAN, GREGORY
BURKHART, THOMAS BARLOW, LENWOOD BORDELON, TOMMY
DRAKE, TIMARRON LAKES COMMUNITY ASSOCIATION, STEVEN
CALKINS, CALEB VARIO, ROBERT CAPPADONA, DEYSE NORWITZ,
ELIAS CHIRICO, MIRIAM DE DIEGO ANITUA, RANDALL CRIMMINS,
KIMBERLEE DYER, GEORGE GARNER, LUANN INGRAM, MORGAN
2
GARTNER, JOSEPH LONG, FRANKLIN HALTER, JONATHAN HANEY,
KATHLEEN HERR, LUIS CORDOBA, KAREN CLARKE, MICHAEL
JONES, SCOTT FAIRLEY, ALEX IRVINE, RAVINDRA JOSHI,
MICHAEL YNOSENCIO, DEEPESH KAUSHISH, HAYWARD KELLEY,
MARK CRAWFORD, WADE KHOURY, EDWARD WOLF, WILLIAM
WOOD, VICTOR WILLIAMS, WILLIAM LAINHART, STEVEN
RESNICK, MARCO SANCHEZ, CHARLES MART, BRUCE SMITH,
CAROLYN STUBER TRUST, J. JESUS MORENO TROUSSELLE,
KHANG NGUYEN, JOHN WADELLA, TERESA NOLAND, LARRY
WARD, PAUL PEDLAR, SCOTT TOWNSEND, LUIS CORONA, MORRIS
REINISCH, MICHAEL LONG, CHRIS REICHARDT, CORY MOORE,
CHRIS STAVINOHA, MARC BEAUCHAMP, BRUCE HOOK, KEITH
WINTERS, JOSEPH WITCRAFT, MATHEW VALICEVIC, MICHAEL
FISCHER, JACINTO SOLIS, RICARDO RAMIREZ, PATRICK
MCCORMACK, STEVEN IRION, SHAWNA ALEXANDER, MARISA
ANDERSON, BRAD ASTIN, PAOLA MORON FERNANDEZ, LUZ MARIA
AYRE, MARYELLEN AUSTIN, CYNTHIA BARCLIFT, GEORGETTE
BENSON, JETTE BOEHME, KIMBERLY CALL, RUBI CAMARILLO,
FRANCES M. CAPPS, ALEJANDRA SOFIA CARDENAS-MARTINEZ,
SHARON CROSS, DEBRA H. CRANE, ANDREA DE LOS SANTOS,
MAUREEN R. DIEMER, SUSAN W. DIO, DEBRA DIXON, SUSAN R.
DIXON, KIMBERLY DUKE, KELLY EIDSMOE, MARIA CORINA
DURAND, KAREN CORBETT, MARIA FERNANDA ROSIQUE FLOTA,
BRIDGET FANGUY, CHRISTINE JASCHINSKI, BETH FOLKS, DAWN
FUENTES, VANESSA GAMIZ, PAMELA GARCIA-HOOKES, SANDRA
GILCREASE, ANNA GIORGI, TAMI GIOVINAZZO, KATHLEEN E.
GREGORY, DONNA GOODBREAD, CARMEN MUNOZ-DIEGO,
JENNIFER HAYEK, MAUREEN HEIGHINGTON, BONNIE S.
HEIMLICH, ROSA HESS, ELIZABETH HICKEY, KAY HOLUB,
LINDSEY HOVER, LEIGH HOWARD, NATHAN HURST, SHANNON
IRBY, GABRIELA JACKSON, BRENDA KANDT, DEBORAH LAUDUCCI,
LIZZETH MORALES, VI NGUYEN, LORI MAGIN, HELENE PAULI,
AND ALICIA MARTIN, Appellants
v.
THE WOODLANDS LAND DEVELOPMENT COMPANY L.P., THE
3
HOWARD HUGHES CORPORATION, LJA ENGINEERING, INC. F/K/A
LJA ENGINEERING & SURVEYING, INC., AND JAMES R. BOWLES,
Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Case No. 2018-36108
MEMORANDUM OPINION1
Appellants2 challenge the trial court’s grant of summary judgment in favor of
appellees—The Woodlands Land Development Company L.P., the Howard Hughes
1
Appellants filed a motion for rehearing and a motion for rehearing en banc of this
Court’s December 16, 2025 opinion and judgment. We withdraw our December 16,
2025 opinion and judgment and issue this opinion and judgment in their place. Our
disposition remains the same. We deny appellants’ motion for rehearing en banc as
moot. See Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008,
pet. denied) (noting that motion for en banc reconsideration rendered moot by
withdrawal and reissuance of opinion and judgment).
2
We do not list appellants by name in the body of the opinion because of their large
number.
By our memorandum order of September 26, 2023, the appeal was dismissed for
want of jurisdiction on The Woodlands Land Development Company and Howard
Hughes’s “Agreed Motion to Dismiss Non-Appellants from Appeal” as to the
claims brought by the following individuals: Dotty McAdams, Jeff Benton, Randy
Deaton, Hope DuBois, Patricia Harmon, Cheryl Ann Harland, Tim Huber, David
Jupp, John Abright, William Batson, Felix Kleiman, David Lozano, Julio
Mayagoitia, Earl McDonald, Jorge Gonzalez, Richard Morar, Elliot Pederson,
Michael Mize, Jeremy Tinker, Clayton Repka, Jeffrey Shinsato, Robert McRae,
Catherine Dunaway, Ollie Verchow, Benito Tagle, Brian Welp, Matthew Derganc,
Marcos Varona, Trevor Taggart, Robert Bivens, Robert Perez Bobadilla, Elda
Calhoon, Joan Flowers, Frank Gore, Kent Tarou, John Hoffman, Johanna
LaChance, Maureen McMullan, Scott Nylund, Yan Wang Order, Paul Dosescu,
Francisco Cano Onate, David Williams, Jessica Benton, Karen A. Deaton,
4
Corporation (Howard Hughes), LJA Engineering, Inc., formerly known as LJA
Engineering & Surveying, Inc. (LJA Engineering), and James R. Bowles—in their
suit against appellees for negligence, gross negligence, and negligent undertaking.3
In four issues, appellants contend that the trial court erred in granting appellees
summary judgment.
We affirm.
Background
In their seventh amended petition, appellants alleged that they owned homes
in a residential subdivision known as “Timarron” in The Woodlands, Texas.
According to appellants, the subdivision was bordered on its northern and western
sides by Spring Creek, a tributary to the West Fork of the San Jacinto River.
Appellants further alleged that in October 1994, “a catastrophic rainstorm hit”
the Houston, Texas area, “dropp[ing] between 20 and 30 inches of rain
throughout . . . [the] northern portions of Harris County,” Texas and “causing
historic flooding.” “[I]n the vicinity of the Timarron area, the October 1994 flood
Lawrence Harmon, Yadira Gonzalez, Sarah Huber, Amber Michelle Abright, and
Amber M. Batson. See TEX. R. APP. P. 42.1(a)(2).
3
Appellants also brought claims for violations of the Texas Deceptive Trade
Practices Act (DTPA) against The Woodlands Land Development Company and
Howard Hughes, but appellants do not challenge on appeal the trial court’s grant of
summary judgment in favor of The Woodlands Land Development Company and
Howard Hughes on appellants’ DTPA claims. Thus, such claims will not be
addressed in this opinion. See TEX. R. APP. P. 47.1.
5
was estimated to have reached flood levels at or about a 500-year flood event.”
(Emphasis omitted.) According to appellants, The Woodlands Land Development
Company and LJA Engineering knew about the “[p]roblems with flooding” in
Timarron, including the flooding related to the October 1994 storm.
After the October 1994 storm, The Woodlands Land Development Company
and Howard Hughes began to design and develop Timarron. “Timarron was built in
stages or sections,” and “[a]ll sections [were] built outside of or beyond the 100-year
floodplain with some portions needing to be filled with dirt in order to be elevated
so as to be above the 100-year flood levels.” Appellants, however, alleged that
“many of these sections remained within the 500-year floodplain, despite the fact
that th[o]se areas flooded in the October 1994 flood.” And according to appellants,
The Woodlands Land Development Company and Howard Hughes knowingly built
sections of Timarron in the 500-year floodplain; they “did not develop and build
[Timarron] in a manner that put properties outside of, or above, the 500-year
floodplain to reduce the likelihood of flooding.”
Appellants further alleged that in planning Timarron, The Woodlands Land
Development Company and Howard Hughes “set a standard[] policy and criteria for
determining the minimum elevation of a house relative to its geographic location
and that location’s risk of flooding by stating that all house slabs shall be at least 6
inches above the October 1994 flood . . . , which . . . was at or above the 500-year
6
floodplain level in the area.” (Emphasis omitted.) That information was provided to
LJA Engineering and Bowles, who “then prepared plans showing th[at] minimum
elevation for each of the homes to be built near Spring Creek” by home builders. But
appellants alleged that the information given by The Woodlands Land Development
Company and Howard Hughes to home builders in Timarron related to “setting the
minimum slab elevations of the[] homes was about 1-foot lower than both the
October 1994 flood level and the 500-year floodplain level.” Ultimately, “[t]he
lots . . . were not elevated to prevent them from flooding during a 500-year flood
event, nor were the streets elevated to make them . . . passable during such an event.”
According to appellants, in August 2017, Hurricane Harvey “dumped about
25 inches of rain over the Spring Creek watershed upstream of Timarron over a
4-day period.” “This was about the same amount of rain that fell during the October
1994 flood and [it] produced slightly lower flood levels along Spring Creek
than . . . the October 1994 storm [did].”
Appellants also alleged that they owned homes in Timarron that flooded
during Hurricane Harvey, which caused appellants to be “displaced from their homes
and . . . endure[] months and years of costly repairs and rebuilding.” And they
alleged that The Woodlands Land Development Company and Howard Hughes
“made errors by instructing home builders to set their slabs for all or some of the
homes in Timarron at an elevation that was unreasonably low for the elevation of
7
the land it was built on” and was below “the standard [that The Woodlands Land
Development Company and Howard Hughes] had set.” According to appellants, The
Woodlands Land Development Company and Howard Hughes “knew or should
have known to have the houses built at an elevation adequate to prevent the
likelihood of flooding” based on information “from previous flooding in th[e] area,”
such as the flooding from the October 1994 storm.
Appellants brought claims against appellees for negligence, gross negligence,
and negligent undertaking. As to their negligence and gross negligence claims
against The Woodlands Land Development Company and Howard Hughes,
appellants alleged that The Woodlands Land Development Company and Howard
Hughes owed duties of care to appellants and breached their duties by:
• Developing Timarron in a manner that cause[d] lots and homes to
flood during a foreseeable weather event;
• Instructing home builders to set minimum slab elevations much
lower than the standard set by The Woodlands Land Development
Company and Howard Hughes;
• Failing to use ordinary care in setting minimum slab elevations for
homes to be built in [Timarron]; and
• Failing to use ordinary care in monitoring and overseeing that the
home builders built to the minimum slab elevation standards, per the
terms of their contract with the builders.
8
Appellants also alleged that the acts or omissions of The Woodlands Land
Development Company and Howard Hughes proximately caused their injuries and
damages.
Further, appellants asserted that the conduct of The Woodlands Land
Development Company and Howard Hughes, when viewed from the standpoint of
the actors at the time of the occurrence, involved an extreme degree of risk,
considering the probability and magnitude of the potential harm to others. And the
conduct demonstrated an attitude of conscious indifference for the rights, safety, and
welfare of others and showed that The Woodlands Land Development Company and
Howard Hughes had actual and subjective awareness of the dangers of such conduct.
Because The Woodlands Land Development Company and Howard Hughes
“proceeded with a conscious indifference to the rights, safety, and welfare of others,
including [appellants],” appellants asserted that The Woodlands Land Development
Company and Howard Hughes were liable to appellants for exemplary damages.
As to their negligent undertaking claims against The Woodlands Land
Development Company and Howard Hughes, appellants alleged “[a]n additional
duty” to appellants was created when The Woodlands Land Development Company
and Howard Hughes “sought to dictate slab elevations within [Timarron].”
According to appellants, The Woodlands Land Development Company and Howard
Hughes, “undertook to dictate minimum slab elevations for all homes built [in
9
Timarron]” and “the[] slab elevations were dictated for the sole purpose of protecting
the property of [appellants], specifically the homes built in a development located in
an area known to be subject to flood hazards.” Further, The Woodlands Land
Development Company and Howard Hughes “failed to exercise reasonable care in
dictating the[] slab elevations by failing to check the elevations against historical
flood data in [their] possession of which [they] knew or should have known, and by
failing to monitor or oversee that home builders actually built to the specified
elevations.” Appellants alleged that they relied on The Woodlands Land
Development Company and Howard Hughes to develop Timarron in a manner safe
from reasonably foreseeable flooding. According to appellants, “[b]y developing in
an area known to be subject to foreseeable flooding without exercising reasonable
care in dictating minimum slab elevations,” The Woodlands Land Development
Company and Howard Hughes increased appellants’ risk of harm. The “negligent
development” by The Woodlands Land Development Company and Howard
Hughes “was the proximate cause of and/or contributed to the harm suffered by
[appellants] during a foreseeable flooding event.”
As to their negligence and gross negligence claims against LJA Engineering
and Bowles, appellants alleged that LJA Engineering and Bowles owed duties of
care to appellants and LJA Engineering and Bowles breached their duties by:
• Failing to use ordinary care in the analysis, design, and engineering
of [Timarron];
10
• Failing to use ordinary care in setting minimum slab elevations for
homes to be built in [Timarron]; and
• Other acts deemed negligent and grossly negligent.
Appellants also alleged that the acts or omissions of LJA Engineering and Bowles
were a proximate cause of appellants’ injuries and damages.
Further, appellants alleged that the conduct of LJA Engineering and Bowles,
when viewed from the standpoint of the actors at the time of the occurrence, involved
an extreme degree of risk, considering the probability and magnitude of the potential
harm to others. And their conduct demonstrated an attitude of conscious indifference
for the rights, safety, and welfare of others and showed that LJA Engineering and
Bowles had actual and subjective awareness of the dangers of such conduct. Because
LJA Engineering and Bowles “proceeded with a conscious indifference to the rights,
safety, and welfare of others, including [appellants],” appellants asserted that LJA
Engineering and Bowles were liable to appellants for exemplary damages.
As to their negligent undertaking claims against LJA Engineering and Bowles,
appellants alleged that “[a]n additional duty to [appellants] on the part of [LJA
Engineering and Bowles] was created when [they] sought to analyze, design, and
engineer the subdivision, the storm water management systems, and the minimum
slab elevations for homes built” in Timarron. Specifically, LJA Engineering and
Bowles “undertook to analyze, design, and engineer [Timarron], the storm water
11
management systems, and the minimum slab elevations for homes to be built” in
Timarron, and “the[] undertakings were set for the ultimate purpose of protecting
the property of [appellants], specifically the homes built in a development located in
an area known to be subject to flood hazards.” According to appellants, LJA
Engineering and Bowles failed to exercise reasonable care in analyzing, designing,
and engineering Timarron, the storm water management system, and the minimum
slab elevations for the homes to be built in Timarron by failing to properly apply
historical flood data of which they knew or should have known. Appellants relied
on LJA Engineering and Bowles “to analyze, design, and engineer [Timarron], the
storm water management system, and the minimum slab elevations for homes to be
built” in Timarron “in a manner safe from reasonably foreseeable flooding,” and by
failing to exercise reasonable care in performing their services, LJA Engineering and
Bowles increased appellants’ risk of harm. The negligent analysis, design, and
engineering by LJA Engineering and Bowles was the proximate cause of and/or
contributed to the harm suffered by appellants during a foreseeable flooding event.
Appellees answered,4 generally denying the allegations in appellants’ petition
and asserting certain affirmative defenses, including estoppel. Appellees then filed
multiple summary judgment motions related to appellants’ claims against them.
4
The Woodlands Land Development Company and Howard Hughes filed a joint
answer, and LJA Engineering and Bowles filed a joint answer.
12
Howard Hughes moved for summary judgment, arguing that it was entitled to
judgment as a matter of law on appellants’ negligence, gross negligence, and
negligent undertaking claims against it because it was not involved in the
development of Timarron, either directly or indirectly. According to Howard
Hughes, it acquired an ownership interest in The Woodlands Land Development
Company after Timarron was platted and was simply the parent company of The
Woodlands Land Development Company at the time appellants filed suit. Further,
appellants had not alleged a theory of indirect liability against Howard Hughes, such
as alter ego or piercing the corporate veil.
Howard Hughes asserted that it was entitled to summary judgment because no
evidence existed to support the elements of appellants’ negligence, gross negligence,
and negligent undertaking claims against it. For example, according to Howard
Hughes, appellants could not establish the elements of duty or breach against
Howard Hughes or “the additional elements for gross negligence.” Additionally,
even if appellants had evidence of duty and breach related to Howard Hughes, there
was no evidence that Howard Hughes was the proximate cause of appellants’
damages. Thus, Howard Hughes asserted that it was entitled to summary judgment
13
on appellants’ claims against it on matter-of-law grounds as well as no-evidence
grounds.5
In their response to Howard Hughes’s summary judgment motion, appellants
argued that Howard Hughes was not entitled to judgment as a matter of law on their
claims for negligence, gross negligence, and negligent undertaking because Howard
Hughes did not “conclusively establish that [it] was not involved.” Instead, the
deposition testimony of Welbes established that “when the decision was made to
develop Timarron,” Howard Hughes “was an owner” of The Woodlands Land
Development Company, and “by 2016, [The Woodlands Land Development
Company] was 100 percent owned” by Howard Hughes. Further, appellants asserted
that the email which Howard Hughes had attached to its summary judgment motion
conflicted with the deposition testimony of Welbes, and according to appellants, it
did not matter that Howard Hughes “did not have any ownership control of [The
Woodlands Land Development Company] at the time the flooded
properties . . . were platted” because the “platting of a subdivision occurs well before
the design and development of the subdivision and the setting of the slab elevations
5
Howard Hughes attached to its summary judgment motion a copy of the transcript
from the depositions of Tim Welbes, an employee of Howard Hughes and
co-president of The Woodlands Land Development Company, as well as the copy
of an email, stating that Howard Hughes “did not have any ownership control of
[The Woodlands Land Development Company] at the time the flooded
properties . . . were platted.”
14
for homes being built in the subdivision.” Further, appellants argued that the
no-evidence portion of Howard Hughes’s summary judgment motion should be
denied because there was more than a scintilla of evidence that Howard Hughes was
involved in the development of Timarron.6
In its reply to appellants’ response, Howard Hughes reiterated that it did not
develop Timarron, it was not involved in the development of Timarron, and
appellants had not asserted a theory of indirect liability against Howard Hughes.
Further, none of the evidence cited by appellants in their response showed that
Howard Hughes was involved in the actual development activities about which
appellants complained, namely, the allegedly negligent determination of minimum
slab elevations for the homes on appellants’ properties. Thus, because appellants
could not establish that Howard Hughes was involved in the development activities
about which appellants complained, appellants could not establish any element of
their negligence, gross negligence, or negligent undertaking claims. According to
Howard Hughes, appellants were required to “have evidence indicating that
[Howard Hughes] itself engaged in some conduct that subject[ed] it to liability,” and
they “ha[d] none.”
6
Among other things, appellants attached to their response a copy of the transcript
from Welbes’s deposition.
15
The trial court granted Howard Hughes summary judgment on appellants’
negligence, gross negligence, and negligent undertaking claims against it.
Next, The Woodlands Land Development Company, LJA Engineering, and
Bowles7 moved for summary judgment on appellants’ negligence, gross negligence,
and negligent undertaking claims against them, asserting that they were entitled to
judgment as a matter of law. In their motion, The Woodlands Land Development
Company, LJA Engineering, and Bowles explained that appellants were
homeowners in Timarron, a subdivision that flooded during Hurricane Harvey. The
Woodlands Land Development Company “began the process of developing”
Timarron by “taking large tracks of raw land” and “dividing them into smaller (but
still large) areas, called sections; platting and obtaining government approval for
those platted sections, with specific streets and lots laid out; and causing the streets
and major utilities to be constructed.” (Internal footnote omitted.) During
development, The Woodlands Land Development Company contracted with LJA
Engineering “to perform platting and other engineering work in connection with”
Timarron.
7
Before The Woodlands Land Development Company, LJA Engineering, and
Bowles filed this summary judgment motion, the trial court granted Howard
Hughes’s summary judgment motion, dismissing appellants’ claims against Howard
Hughes. But The Woodlands Land Development Company, LJA Engineering, and
Bowles noted in their motion that, if Howard Hughes was “still a party [in the suit],”
the arguments in their summary judgment motion “would apply to it too.”
16
The summary judgment motion further explained that during the development
of Timarron, The Woodlands Land Development Company “met all [of] Harris
County[’s] regulatory standards in place at the time, including a requirement that
structures in the 100-year floodplain be built 18 inches above the 100-year
floodplain.” (Emphasis omitted.) The Woodlands Land Development Company
ultimately decided to recommend that third-party builders build their houses in
Timarron “six inches above the flood of record level” from the October 1994 storm.
To determine the “flood of record level,” The Woodlands Land Development
Company hired a third-party engineering firm, IDS Engineering Group, Inc.,
formerly known as Pate Engineers, Inc. (Pate).8 Pate’s flood of record level
determination was then given to LJA Engineering “to set minimum slab elevations
of 6 inches above the 1994 [October storm] flood of record level as determined by”
Pate. It was The Woodlands Land Development Company’s goal to “recommend
minimum slab elevations six inches above the 1994 [October storm] flood of
record,” as determined by Pate, which is exactly what it did.
Appellants, however, alleged that Pate incorrectly determined the flood of
record level, which resulted in the slabs on appellants’ properties not actually being
8
The summary judgment motion noted that appellants’ expert witness agreed that
Pate was “a well-recognized good reputation engineering firm,” which was
“well-respected” and “d[id] capable quality work.” (Internal quotations omitted.)
17
built six inches above the 1994 October storm flood of record level. And this is what
appellants alleged caused the flooding of their properties.
In their summary judgment motion, The Woodlands Land Development
Company, LJA Engineering, and Bowles also explained that appellants bought their
properties directly from various third-party builders.9 Appellants did not buy their
properties from The Woodlands Land Development Company, The Woodlands
Land Development Company did not have any role in appellants’ transactions with
the builders, appellants had no contracts with The Woodlands Land Development
Company, and appellants admitted that they did not rely on anything that The
Woodlands Land Development Company had said when deciding to purchase their
properties. Further, although The Woodlands Land Development Company
developed Timarron “as a whole, laying out and building streets and major
infrastructure,” The Woodlands Land Development Company “then subdivided and
sold the properties—vacant lots—to the [various third-party] builders.” The
Woodlands Land Development Company did not build any of appellants’ houses.
Instead, the third-party builders “made final decisions on—and had ultimate
authority over—fill, lot grading, design, and construction, including [the]
construction of the slabs and finished floor elevations” for appellants’ properties. In
9
The summary judgment motion identifies the builders and explains that the builders,
and not The Woodlands Land Development Company, LJA Engineering, or Bowles,
contracted with appellants to build appellants’ houses.
18
short, The Woodlands Land Development Company did not construct the slabs for
appellants’ houses and did not determine “the final lot grading or slab heights for
any of [appellants’] propert[ies].”
As to LJA Engineering and Bowles, the summary judgment motion
additionally explained that neither LJA Engineering nor Bowles was involved in
appellants’ purchases of their properties or with the building of appellants’ homes.
And LJA Engineering and Bowles “did not determine the final lot grading or slab
heights for any [of appellants’] propert[ies].”
According to The Woodlands Land Development Company, LJA
Engineering, and Bowles, they were entitled to summary judgment as a matter of
law on appellants’ negligence, gross negligence, and negligent undertaking claims
because appellants could not establish that The Woodlands Land Development
Company, LJA Engineering, and Bowles owed a duty to appellants for purposes of
appellants’ negligence and gross negligence claims; appellants could not meet the
requirements of imposing “a duty where none exist[ed] for purposes of” appellants’
negligent undertaking claims; and even if a duty existed, The Woodlands Land
Development Company, LJA Engineering, and Bowles did not breach that duty as a
matter of law.
More specifically, as to any negligence duty, the summary judgment motion
explained that Texas law had not recognized a duty like the one appellants sought to
19
impose in this case. And it explained that whether a defendant owed a duty to a
plaintiff “depends on several factors, including risk, foreseeability, and likelihood of
injury weighed against the social utility of the actor’s conduct, the magnitude of the
burden of guarding against injury, and the consequences of placing the burden on
the defendant.” (Internal quotations omitted.) Further, the nature of the relationship
between the plaintiff and the defendant is a significant consideration in determining
the existence of a duty of care.
According to The Woodlands Land Development Company, LJA
Engineering, and Bowles, none of the factors to be considered in determining
whether to impose a new legal duty warranted imposing a duty on them. First, The
Woodlands Land Development Company, LJA Engineering, and Bowles had no
relationship with appellants, and Hurricane Harvey was an unprecedented storm,
which could not be foreseen. Further, the risk of a Hurricane-Harvey-like event was
low, and the probability of injury was low “when balanced against the social utility
of [The Woodlands Land Development Company, LJA Engineering, and Bowles]
complying with existing [regulatory] standards, which [was] what they did.” And
the “magnitude or burden would be great if [The Woodlands Land Development
Company, LJA Engineering, and Bowles] had to undertake ultimate responsibility
and authority for construction of slab heights that would guard against unforeseeable
floods (usurping this from the [third-party] builder[s] to whom [the properties were
20
already sold]).” Additionally, “placing the burden on [The Woodlands Land
Development Company, LJA Engineering, and Bowles] would result in highly
undesirable consequences—namely, forcing [them] to undertake unrealistic and
cost-prohibitive oversight of builders’ construction of slabs.” Thus, there was “no
basis to impose upon [The Woodlands Land Development Company, LJA
Engineering, and Bowles] a duty owed toward downstream purchasers in
negligence.”
The Woodlands Land Development Company, LJA Engineering, and Bowles
argued that they were also entitled to summary judgment as a matter of law on
appellants’ negligent undertaking claims. They asserted that to establish their claims
for negligent undertaking, appellants had to show that The Woodlands Land
Development Company, LJA Engineering, and Bowles
undertook, gratuitously or for consideration, to render services to
another that they knew or should have known were necessary for the
protection of a third person; [they] failed to exercise reasonable care to
perform the undertaking; and [] (a) the failure to exercise reasonable
care increase[d] the risk of such harm; (b) [they] undert[ook] to perform
a duty owed by the other to the third person; or (c) the harm [was]
suffered because of reliance of the other or the third person upon the
undertaking.
(Emphasis omitted.)
The Woodlands Land Development Company, LJA Engineering, and Bowles
asserted that to the extent appellants were arguing that The Woodlands Land
Development Company, LJA Engineering, and Bowles undertook, gratuitously or
21
for consideration, to render services to another that they knew or should have known
were necessary for the protection of a third person “by commissioning a study
regarding flood of record levels (or even that they gave recommendations of
minimum slab elevations based on flood of record levels),” there was no evidence
that they had “undert[aken] to oversee the construction of slab heights or [had]
precluded the [third-party] builders from exceeding any slab height
recommendations.” Rather, it was the builders who were responsible for the slab
heights on appellants’ properties. They argued that, even if they owed a duty, at most
their duty would have been to develop the subdivision in a manner that complied
with all regulatory standards which they undisputedly did. And, even if they owed a
duty to exercise reasonable care in their undertaking to determine the flood of record
level and recommend that minimum slab heights be built six inches above it, they
fulfilled this duty as well. They were entitled to rely on Pate’s determination of the
flood of record level and, to the extent appellants argued that The Woodlands Land
Development Company, LJA Engineering, and Bowles should have double checked
or independently assessed the accuracy of Pate’s determination, appellants were
arguing for an undertaking that The Woodlands Land Development Company, LJA
Engineering, and Bowles did not undertake.
In their response to the summary judgment motion, appellants argued, as to
their negligence claims, that The Woodlands Land Development Company, as the
22
developer of Timarron, owed appellants a duty because “a developer owes an
implied warranty to develop its property in a good and workmanlike manner.” As to
their negligent undertaking claims, appellants disputed the assertion that the
undertaking they alleged was commissioning a study regarding flood of record levels
(or giving recommendations of minimum slab elevations based on flood of record
levels). Rather, they argued, The Woodlands Land Development Company
“undertook to ‘insure that [its] residents and businesses w[ould] not be threatened
by flood damage,’” and The Woodlands Land Development Company “undertook
[that] by establishing minimum slab elevations of six (6) inches above the [flood of
record], that builders were required to meet, so that residents would not be threatened
by flood damage from another [flood of record].” According to appellants, The
Woodlands Land Development Company breached that undertaking. In their
response, appellants stated that they would not address their negligence claims
against LJA Engineering because, according to appellants, the summary judgment
motion did not address any alleged negligence by LJA Engineering but rather
focused solely on The Woodlands Land Development Company.
Appellants attached numerous exhibits to their summary judgment response.
The Woodlands Land Development Company, LJA Engineering, and Bowles filed
objections to some of those exhibits. The trial court sustained the objections.
23
In their reply to appellants’ response, The Woodlands Land Development
Company, LJA Engineering, and Bowles asserted that appellants had not directed
the trial court to “a single case holding that a developer owe[d] a duty to downstream
purchasers.” Further, as to appellants’ negligent undertaking claim, The Woodlands
Land Development Company, LJA Engineering, and Bowles asserted that the
undertaking in this case was “to hire a third-party engineering firm . . . to determine
the 1994 flood of record level and then set minimum slab elevations based on the
1994 flood of record as determined by [the third-party engineering firm],” which is
exactly what The Woodlands Land Development Company, LJA Engineering, and
Bowles did. They further argued that any attempt by appellants to redefine the
undertaking failed. Finally, noting that appellants stated that they would not be
addressing the negligence of LJA Engineering, LJA Engineering and Bowles
asserted that appellants had waived their arguments as to the propriety of summary
judgment on appellants’ claims against LJA Engineering and Bowles.
The trial court granted The Woodlands Land Development Company, LJA
Engineering, and Bowles’s summary judgment on appellants’ negligence, gross
negligence, and negligent undertaking claims.10
10
The Woodlands Land Development Company, LJA Engineering, and Bowles filed
additional summary judgment motions on appellants’ negligence, gross negligence,
and negligent undertaking claims against them, which raised other arguments as to
why they were entitled to summary judgment on appellants’ claims. The trial court
also granted those motions for summary judgment. Due to our disposition below,
24
Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true
all evidence favorable to the non-movant, and we indulge every reasonable inference
and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d
at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without
specifying the grounds for granting the motion, we must uphold the trial court’s
judgment if any of the asserted grounds is meritorious. Beverick v. Koch Power, Inc.,
186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
A party seeking summary judgment may combine in a single motion a request
for summary judgment under the no-evidence standard with a request for summary
judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004).
To prevail on a no-evidence summary judgment motion, the movant must assert that
there is no evidence to support one or more essential elements of the non-movant’s
claim on which the non-movant would have the burden of proof at trial and must
identify the elements as to which there is no evidence. TEX. R. CIV. P. 166a(i);11 Fort
we need not discuss the specifics of the other summary judgment motions or
appellants’ arguments as to why the trial court erred in granting those other
summary judgment motions. See TEX. R. APP. P. 47.1.
11
We apply the version of rule 166a in effect at the time of the trial court’s orders
granting appellees’ motions for summary judgment.
25
Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Hahn v.
Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
The burden then shifts to the non-movant to present evidence raising a genuine issue
of material fact as to each of the elements challenged in the motion. Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A
no-evidence summary judgment may not be granted if the non-movant brings forth
more than a scintilla of evidence to raise a genuine issue of material fact on the
challenged elements in the motion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). More than a scintilla of evidence exists when the evidence “rises
to a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997) (citation modified). If the movant successfully shifts the burden to the nonmovant and the non-movant fails to raise a genuine issue of material fact as to the
challenged element, the trial court must grant the no-evidence summary judgment
motion. See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67
(Tex. App.—Houston [1st Dist.] 2009, no pet.).
To prevail on a matter-of-law summary judgment motion, the movant must
establish that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995). When a defendant moves for a matter-of-law summary
26
judgment, it must either: (1) disprove at least one essential element of the plaintiff’s
cause of action, or (2) plead and conclusively establish each essential element of an
affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey, 900
S.W.2d at 341; Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Once the movant meets its burden, the burden shifts to the non-movant to raise a
genuine issue of material fact precluding summary judgment. Siegler, 899 S.W.2d
at 197; Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if
reasonable and fair-minded fact finders could differ in their conclusions in light of
all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).
Summary Judgment
In their first issue, appellants argue that the trial court erred in granting The
Woodlands Land Development Company summary judgment on appellants’
negligence, gross negligence, and negligent undertaking claims because The
Woodlands Land Development Company did not conclusively establish that it did
not owe appellants a duty or that it did not breach any duty. In their second issue,
they contend that the trial court erred in granting The Woodlands Land Development
Company, LJA Engineering, Bowles, and Howard Hughes summary judgment on
appellants’ negligence, gross negligence, and negligent undertaking claims because
27
they did not conclusively establish that appellants could not raise a genuine issue of
material fact on causation. In their third issue, appellants argue that the trial court
erred in granting LJA Engineering and Bowles summary judgment on appellants’
negligence, gross negligence, and negligent undertaking claims because LJA
Engineering and Bowles “never offered evidence, argument, or supporting legal
authority to conclusively establish [that] they owed no duty and committed no
breach.” In their fourth issue, appellants argue that the trial court erred in granting
Howard Hughes summary judgment on appellants’ negligence, gross negligence,
and negligent undertaking claims because appellants “offered more than a scintilla
of evidence that Howard Hughes ha[d] some direct responsibility because it stepped
out of its role as a parent and participated in [The Woodlands Land Development
Company’s] activities.”
A. The Woodlands Land Development Company
1. Negligence and Gross Negligence Claims
Appellants argue that the trial court erred in granting The Woodlands Land
Development Company summary judgment on their negligence and gross
negligence claims because The Woodlands Land Development Company did not
establish that it did not owe appellants a duty. In their response to appellees’
summary judgment motion on these claims, appellees argued that appellees had not
established their right to summary judgment and that The Woodlands Land
28
Development Company had a “duty to exercise reasonable care in developing
Timarron, particularly with regard to the flood-mitigation efforts it undertook.”
A negligence cause of action has three elements: (1) a legal duty, (2) breach
of that duty, and (3) damages proximately resulting from the breach. Elephant Ins.
Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); Watanabe v. Summit Path
Partners, LLC, 650 S.W.3d 112, 125 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
The threshold inquiry in a negligence case is whether a duty exists, which is a
question of law for the court to decide from the facts surrounding the occurrence in
question. Elephant Ins. Co., 644 S.W.3d at 145. We review de novo a determination
regarding whether a legal duty is owed. See Black ± Vernooy Architects v. Smith,
346 S.W.3d 877, 882-83 (Tex. App.—Austin 2011, pet. denied).
The existence of a legal duty by the defendant to the plaintiffs is an essential
element of the plaintiffs’ negligence claims. United Rentals N. Am., Inc. v. Evans,
668 S.W.3d 627, 638 (Tex. 2023). If the defendant has no duty, then it cannot be
held liable for negligence. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet,
Inc., 302 S.W.3d 515, 529 (Tex. App.—Austin 2009, no pet.). To determine whether
a particular defendant owed a negligence duty to a particular plaintiff, courts first
look at whether they have previously held that a duty does or does not exist under
the same or similar circumstances. Hou. Area Safety Council, Inc. v. Mendez, 671
S.W.3d 580, 582-83 (Tex. 2023). Generally, Texas law imposes no duty to take
29
action to prevent harm to others absent certain special relationships or
circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Garcia
v. Kellogg Brown & Root Servs., Inc., No. 01-19-00319-CV, 2020 WL 3820426, at
*6 (Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.). Special
relationships include those existing between an employer and an employee, a parent
and a child, and an independent contractor and a contractee. Greater Hou. Transp.
Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
In their response to The Woodlands Land Development Company’s summary
judgment motion, appellants asserted that Texas case law had already implicitly
recognized a negligence duty owed by developers in cases like this one, relying on
the Texas Supreme Court’s opinion in Parkway Co. v. Woodruff, 901 S.W.2d 434
(Tex. 1995).12 However, in Parkway, issues of negligence and duty were not before
the supreme court. Instead, the supreme court was asked to decide whether “a real
estate development company [had] violated the [DTPA],” after the development
company built a wall that diverted water onto the plaintiffs’ property, which resulted
in flood damage to the plaintiffs’ home, and the plaintiffs had informed the
development company of the flooding issues before the wall was built. Parkway,
12
In their summary judgment response, appellants primarily focused on the court of
appeals’s opinion, rather than the Texas Supreme Court’s ultimate opinion in the
case. See generally Parkway Co. v. Woodruff, 857 S.W.2d 903 (Tex. App.—
Houston [1st Dist.] 1993), aff’d as modified, 901 S.W.2d 434 (Tex. 1995).
30
901 S.W.2d at 436-37. Although the plaintiffs in Parkway did sue the development
company for negligence in addition to violations of the DTPA, the development
company did not challenge on appeal the jury’s finding of negligence, or the
negligence damages awarded to the plaintiffs. See id. at 436. In short, the Texas
Supreme Court was not asked to determine whether the development company owed
a negligence duty to the plaintiffs in that case,13 and we will not conclude that any
of the language used by the supreme court in Parkway implicitly created a new
negligence duty owed by developers.14 See Elephant Ins. Co., 644 S.W.3d at 145
(“Texas law requires the court . . . to balance the relevant factors in determining the
existence, scope, and elements of legal duties.” (internal quotations omitted)); In re
Luminant Generation Co., 711 S.W.3d 13, 24 (Tex. App.—Houston [1st Dist.] Dec.
14, 2023, orig. proceeding) (in determining “whether to impose a duty,” courts must
“be specific in determining the existence, scope, and elements of any new legal
duties”).
When a duty has not already been recognized in particular circumstances, the
next question is whether one should be. Elephant Ins. Co., 644 S.W.3d at 145.
13
Likewise, this Court in Parkway was also not asked to determine whether the
development company owed a negligence duty to the plaintiffs. See Parkway, 857
S.W.2d at 917 (noting development company did not challenge jury’s negligence
finding on appeal).
14
Appellants, in their briefing, have not cited any other opinion recognizing the
purported negligence duty they now ask this Court to recognize.
31
Generally, intermediate appellate courts should be reluctant to recognize a new
common-law duty that has no existence in established law. J.P. Morgan Chase Bank,
302 S.W.3d at 535; see, e.g., In re Luminant Generation, 2023 WL 8630982, at *10
& n.16 (declining invitation to impose new duty); see also See Black ± Vernooy
Architects, 346 S.W.3d at 881 (“The creation of a new common-law duty is a task
better suited for the supreme court, not intermediate appellate courts[.]”).
To determine whether a duty should be recognized, courts weigh the risk
involved, the foreseeability of the risk, and the likelihood of injury against the social
utility of the actor’s conduct, the magnitude of the burden of guarding against the
injury, and the consequences of placing the burden on the defendant (the Phillips
factors). Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503-04 (Tex. 2017);
Phillips, 801 S.W.2d at 525. We may also consider whether one party had superior
knowledge of the risk or the right to control the actor who caused the harm. See
Elephant Ins. Co., 644 S.W.3d at 145. Foreseeability of the risk is essential and the
most important factor to consider, but foreseeability alone does not create a
negligence duty. City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009); see Tex.
Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002) (“Before imposing a duty
of care, . . . the risk of harm must be foreseeable.”). In their response to appellees’
summary judgment motion, appellants did not address directly the question of
whether the trial court should recognize a new common-law duty, but did argue that
32
appellees had not established their right to summary judgment as a matter of law.
We disagree. In their motion, appellees established that there is no recognized duty
that a developer owes under the circumstances at issue. That showing alone supports
the trial court’s summary judgment, and we decline appellants’ invitation to
recognize such a duty. Although appellants claim that such a duty has already been
recognized, their contention rests entirely on the Parkway decision but, as discussed
above, the recognition of such a duty was not before the supreme court or this Court
in Parkway. See Thapar v. Zezulka, 994 S.W.2d 635, 638-40 (Tex. 1999) (affirming
summary judgment against plaintiff on negligence claim because “we have never
recognized the only underlying duty upon which such a cause of action could be
based”); Obialo v. N. Healthcare Land Ventures, Ltd., No. 01-17-00317-CV, 2018
WL 3233575, at *7 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem.
op.) (affirming traditional and no-evidence summary judgment against plaintiff on
his negligence claim based on nonexistence of alleged duty, noting that “[t]he
nonexistence of a duty ends the inquiry into whether negligence liability may be
imposed” (quoting Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998))).
Appellees argued further that the trial court should not recognize a new
common-law duty owed by a developer to downstream purchasers for reasons
including: (1) there is no contractual or other relationship between appellants and
33
appellees, (2) other jurisdictions have rejected such a duty,15 (3) the probability of
injury is low given appellees’ compliance with existing regulatory standards,
(4) recognizing such a duty would place a heavy burden on appellees, and
(5) recognizing such a duty would have negative consequences.
Appellants argue in this Court that they attached to their response to appellees’
summary judgment motion, or incorporated by reference, evidence that the flooding
of their homes was foreseeable, including because it was foreseeable that home
builders would build in accordance with the minimum slab criteria set by appellees.
They argue that such evidence, “at a minimum, created a fact issue on foreseeability
that precluded summary judgment on the element of duty.” However, even if a fact
issue did exist as to whether the risk was foreseeable, foreseeability alone does not
create a negligence duty. Kirwan, 298 S.W.3d at 624. In other words, foreseeability
is a necessary but not sufficient basis on which to recognize a new common-law
duty. Thus, even if we were inclined to recognize at the intermediate appellate stage
a new common-law duty that has no existence in established law,16 we could not do
so based solely on evidence that the flooding of appellants’ homes was foreseeable.
15
Appellees cited Marnatti v. Horne Eng’g Inc., No. 2011-CA-001910-MR, 2014 WL
1356629, at *3 (Ky. App. Apr. 4, 2014), and Jones v. Whitt, 676 So. 2d 313, 314-16
(Ala. Civ. App. 1995).
16
See J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515,
535 (Tex. App.—Austin 2009, no pet.) (noting that intermediate appellate courts
should generally be reluctant to recognize new common-law duty); Black ± Vernooy
Architects v. Smith, 346 S.W.3d 877, 881 (Tex. App.—Austin 2011, pet. denied)
34
2. Negligent Undertaking Claims
Appellants argue that the trial court erred in granting The Woodlands Land
Development Company summary judgment on their negligent undertaking claim
because appellants “established a genuine dispute of material fact concerning duty
and breach.”
One who voluntarily undertakes an affirmative course of action for the benefit
of another has a duty to exercise reasonable care that the other’s person or property
will not be injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d
116, 119-20 (Tex. 1976). To establish a “negligent undertaking,” the plaintiffs must
show that: (1) the defendant undertook to perform services that it knew or should
have known were necessary for the plaintiffs’ protection, (2) the defendant failed to
exercise reasonable care in performing those services, and (3) either (a) the plaintiffs
suffered harm because of their reliance on the defendant’s performance or (b) the
defendant’s performance increased the plaintiffs’ risk of harm. Nall v. Plunkett, 404
S.W.3d 552, 555-56 (Tex. 2013).
(noting that creation of new common-law duty is task better suited for supreme
court).
35
a. Evidentiary Rulings
As a preliminary matter, we address appellants’ sub-issue asserting that the
trial court abused its discretion in excluding Exhibits 11, 12 and 21, which they
contend are relevant to their negligent undertaking claim.
We review a trial court’s exclusion of evidence for an abuse of discretion. JLG
Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner or without reference to
guiding rules and principles. State v. Gleannloch Com. Dev., LP, 585 S.W.3d 509,
524 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing Bowie Mem’l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)). We will affirm an evidentiary ruling that
is supported by any legitimate ground, even if the ground was not raised in the trial
court. Id. We will not reverse a trial court for an erroneous evidentiary ruling unless
the error “probably caused the rendition of an improper judgment or prevented a
proper presentation of the appeal.” TEX. R. APP. P. 44.1(a); Sw. Elec. Power Co. v.
Burlington N. R.R. Co., 966 S.W.2d 467, 474 (Tex. 1998).
Exhibits 11 and 12 are the sales contract between The Woodlands Land
Development Company and the builders (Exhibit 12) and an attachment to the
contract, “Development Criteria” (Exhibit 11). The Woodlands Land Development
Company objected to both exhibits, which span more than a thousand pages
collectively, on the grounds that appellants provided no specific guidance as to
36
where the evidence could be found. It also objected to Exhibit 11 on the grounds that
it constituted inadmissible hearsay and misrepresented testimony/evidence. The trial
court sustained the objections without specifying the basis for its ruling and excluded
the exhibits.
We conclude that any error in excluding Exibits 11 and 12 was harmless. In
their summary judgment response, appellants cited Exhibits 11 and 12 as evidence
showing that The Woodlands Land Development Company “prescribed much of
how its builders would construct these homes,” including “absolute minimum slab
elevations,” that “Defendants established these minimum heights, which were
inadequate and failed to meet Defendants’ standard, policy, and criteria,” and that
the slab heights “were not merely recommended to the Builders, they were imposed
upon them as Development Criteria.” As discussed below, in his expert report and
deposition, Philip Bedient, an expert hired by appellants, stated that The Woodlands
Land Development Company submitted the development criteria to the builders,
which included minimum slab elevations, and that those elevations were lower than
the standard set by The Woodlands Land Development Company for such slabs.
Exhibits 11 and 12 were merely cumulative of that evidence. See Bartosh v. Gulf
Health Care Ctr.-Galveston, 178 S.W.3d 434, 439 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (“To establish harm (i.e., that the error was reasonably calculated to
cause and probably did cause rendition of an improper judgment), the appellant must
37
demonstrate that the excluded evidence was both controlling on a material issue and
not cumulative of other evidence.” (citing Williams Distrib. Co. v. Franklin, 898
S.W.2d 816, 817 (Tex. 1995))).
The Woodlands Land Development Company also objected to the admission
of Exhibit 21 as summary judgment evidence on the grounds that appellants failed
to file the exhibit or attach the document to their summary judgment response
“within seven days of the hearing.”17 Exhibit 21 is a February 14, 2013 email18 from
Fred LeBlanc of The Woodlands Development Company to Calleen McFerren, a
manager with The Woodlands Homefinder Center, explaining what is meant by
“flood of record.” The email states that “as a result of this flood, [The Woodlands
Land Development Company] developed a policy to designate the minimum slab
elevations to be 0.5 feet above” it and that LeBlanc would consult with others about
“how this information should be conveyed to customers.” The trial court sustained
the objections to the exhibit.
Appellants assert that The Woodlands Land Development Company’s
objection to Exhibit 21 as “untimely” is unfounded. Appellants argue that they filed
and served a letter, i.e., notice, which specifically identified Exhibit 21 (and all
17
The objection misstates Rule 166a(c), which provides, in part, that “[e]xcept on
leave of court, the adverse party, not later than seven days prior to the day of hearing
may file and serve opposing affidavits or other written response.” TEX. R. CIV. P
166a(c) (emphasis added).
18
The evidence is an exhibit to Welbes’s deposition.
38
exhibits) and included a copy of those documents at the embedded link in the letter
thereby complying with Texas Rule of Civil Procedure 166a(d). 19 Appellants also
contend that The Woodlands Land Development Company improperly based their
objections to Exhibit 21 on Rule 166a(c), which requires “any supporting affidavits”
to be filed “within seven days of the summary-judgment hearing.”20 They argue that
Exhibit 21 is not a “supporting affidavit” but, rather, a “discovery product,” which
is governed by Rule 166a(d), not Rule 166a(c).21
19
Texas Rule of Civil Procedure 166a(d) provides:
(d) Appendices, References and Other Use of Discovery Not Otherwise
on File. Discovery products not on file with the clerk may be used as
summary judgment evidence if copies of the material, appendices containing
the evidence, or a notice containing specific references to the discovery or
specific references to other instruments, are filed and served on all parties
together with a statement of intent to use the specified discovery as summary
judgment proofs: (i) at least twenty-one days before the hearing if such
proofs are to be used to support the summary judgment; or (ii) at least seven
days before the hearing if such proofs are to be used to oppose the summary
judgment.
TEX. R. CIV. P. 166a(d) (emphasis added).
20
As previously noted, Texas Rule of Civil Procedure 166a(c) states that “[e]xcept on
leave of court, the adverse party, not later than seven days prior to the day of hearing
may file and serve opposing affidavits or other written response.” TEX. R. CIV. P
166a(c). (Emphasis added).
21
Rule 166a(c) provides, in part, that “[e]xcept on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be filed and served
at least twenty-one days before the time specified for hearing. Except on leave of
court, the adverse party, not later than seven days prior to the day of hearing may
file and serve opposing affidavits or other written response.” TEX. R. CIV. P
166a(c).
39
The record shows that The Woodlands Land Development Company objected
to Exhibit 21 as “not on file” and “untimely.” It asserted that appellants failed to file
the exhibit or attach it to their summary judgment response at least seven days before
the hearing as required by Rule 166a(c). They also argued that appellants failed to
include Exhibit 21 on the flash drive delivered to The Woodlands Land Development
Company and the trial court on the date their response was due, and they did not
obtain leave of court to “forward another flash drive with this exhibit and others to
the trial court and defense counsel the day after the deadline.” Citing Rule 166a(d),
The Woodlands Land Development Company asserted that this evidence could not
be used to oppose summary judgment.
Assuming without deciding that Exhibit 21 was improperly excluded, the trial
court’s evidentiary ruling was not harmful and does not warrant reversal for the
reasons discussed below. See JLG Trucking, 466 S.W.3d at 161 (stating plaintiff
must establish that trial court abused its discretion in sustaining objections to
evidence and that its exclusion probably caused rendition of improper judgment).
b. Breach
We need not resolve the parties’ dispute regarding whether appellants raised
a genuine issue of material fact as to whether The Woodlands Land Development
Company owed appellants a duty under an undertaking theory because appellants
failed to raise a genuine issue of material fact as to whether The Woodlands Land
40
Development Company breached any such duty. To succeed on a negligent
undertaking claim, a plaintiff must show that the defendant failed to exercise
reasonable care in performing the services it undertook. See Nall, 404 S.W.3d at
555-56. That is, one who voluntarily undertakes an affirmative course of action for
the benefit of another has a duty to exercise reasonable care that the other’s person
or property will not be injured by the undertaking. Fort Bend Cnty. Drainage Dist.
v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991) (quoting Taylor, 544 S.W.2d at
119-20).
Appellants alleged in their seventh amended petition that “Defendants failed
to exercise reasonable care in dictating these slab elevations by failing to check the
elevations against historical flood data in its possession of which it knew or should
have known [] and by failing to monitor or oversee that home builders actually built
to the specified locations.”
In its summary judgment motion, The Woodlands Land Development
Company asserted that, even if it owed a duty to appellants, it would have been to
develop the subdivision in a manner that met all regulatory standards. The
Woodlands Land Development Company argued that it not only complied with all
applicable regulatory standards but, in fact, exceeded all of the requirements and did
not breach any duty of care. Further, in the event it owed a duty to use reasonable
41
care in its undertaking to determine the flood of record level and recommend that
minimum slab heights be built six inches above it, it fulfilled that duty.
In their summary judgment response, appellants argued that The Woodlands
Land Development Company’s assertion that it fulfilled its duty to exercise
reasonable care in its undertaking because it complied with applicable regulatory
standards is determinative only if the standard of care is simple compliance with
those standards, and not the undertaking alleged by appellants. Appellants point to
the declaration of one of their experts, Randy Birdwell, stating that regulatory
standards are frequently exceeded and must be exceeded when it is clear that those
standards are inadequate.
In its summary judgment reply, The Woodlands Land Development Company
asserted that its undertaking involved commissioning a reputable third-party
engineering firm to determine the flood of record level and, at most, following the
determination, and that they did not breach any standard of care in doing so.
Appellants contend on appeal that they have established a genuine dispute of
material fact regarding breach. They assert that The Woodlands Land Development
Company’s argument that it did not undertake to determine the flood of record in
any way other than hiring Pate is disputed by the evidence. Specifically, after the
flood of record, The Woodlands Land Development Company collected its own
high-water marks along Spring Creek in the Woodlands. It used those high-water
42
marks—which showed that the flood of record was above the 500-year flood level—
to create its own map of the flood of record levels. However, according to appellants,
Pate’s modeled estimates conflicted with The Woodlands Land Development
Company’s own data and demonstrated an error in Pate’s work.22 Appellants argue
that The Woodlands Land Development Company “had actual knowledge that the
modeled flood estimate Pate provided was incorrect [but] then did nothing to prevent
Pate’s flawed estimates from being used in the Timarron development.”
In his expert report, Bedient stated that The Woodlands Land Development
Company “requested one of its engineers (Pate Engineers) to provide the 1994 Flood
of Record elevations along Spring Creek in the vicinity of the Timarron
development, west of Kuykendahl Road.” Pate submitted its proposal “to provide
such information by using the HCFCD [Harris County Flood Control District]
hydraulic model of Spring Creek developed as part of its TSARP [Tropical Storm
Allison Recovery Project] effort,” and The Woodlands Land Development Company
approved the proposal. Pate prepared a “1994 Flood of Record Delineation” map
which it submitted to The Woodlands Land Development Company in March 2006.
22
Citing Bedient’s expert report, appellants point to an example showing where the
high-water marks that The Woodlands Land Development Company obtained north
of the Kuykendahl Road bridge were 142.5 feet after the flood of record. Those
high-water marks showed the flood of record was above the 500-year flood level.
But when Pate completed its modeled estimate of the flood of record, the estimate
at this specific location was only 141 feet, which was below both the flood of record
high-water mark and the 500-year flood level.
43
The Woodlands Land Development Company then provided the map to LJA
Engineering and “instructed them to set minimum slab elevations at least 6 inches
above the 1994 Flood of Record in preparing the design plans for various sections
of Timarron.” This evidence shows that The Woodlands Land Development
Company undertook to establish minimum slab elevations six inches above the flood
of record based on Pate’s determination, and it fulfilled the undertaking. Appellants
presented no evidence showing that The Woodlands Land Development Company’s
undertaking included an independent assessment of Pate’s determination. Indeed,
had it done so, it would ostensibly have had no reason to hire Pate to provide the
flood of record elevations. And, contrary to appellants’ assertion, there is no
evidence showing that The Woodlands Land Development Company hired Pate to
“supplement the observed data” it had. Rather, the evidence shows that The
Woodlands Land Development Company hired Pate to provide the flood of record
levels based on the approved modeling and not to supplement any data.
Bedient testified that Pate is a “a well-recognized good reputation engineering
firm” that does “capable, quality work,” and that Pate’s reliance on the TSARP
model in determining the flood of record was reasonable. He testified that The
Woodlands Land Development Company exceeded all of the regulatory
requirements established by the HCFCD by several feet in every instance, and that
he had never seen a master-planned community with higher standards than The
44
Woodlands Land Development Company. Appellants did not present any evidence
raising a genuine issue of material fact as to whether The Woodlands Land
Development Company exercised reasonable care in performing what it undertook
to accomplish. See Nall, 404 S.W.3d at 555-56. As such, the trial court did not err in
granting summary judgment to The Woodlands Land Development Company on
appellants’ negligent undertaking claim.23 We overrule appellants’ first issue.
Having done so, we also overrule the portion of appellants’ second issue regarding
causation as it pertains to The Woodlands Land Development Company.
B. LJA Engineering and Bowles
In their third issue, appellants argue that the trial court erred in granting LJA
Engineering and Bowles summary judgment on appellants’ negligence claims
23
Appellants assert that Exhibit 21 is critical for two reasons: (1) it is a written
acknowledgement that The Woodlands Land Development Company undertook to
create and adopt a policy to increase minimum slab elevations, and (2) it reflects
The Woodlands Land Development Company’s intent to communicate that policy
to customers. As noted above, even if the trial court erred in excluding the exhibit,
the trial court’s ruling was not harmful. First, in light of our conclusion that there
was evidence, namely Bedient’s testimony, showing that The Woodlands Land
Development Company undertook to establish minimum slab elevations six inches
above the flood of record, Exhibit 21 is merely cumulative of that evidence. Bartosh
v. Gulf Health Care Ctr.-Galveston, 178 S.W.3d 434, 439 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (“To establish harm (i.e., that the error was reasonably
calculated to cause and probably did cause rendition of an improper judgment), the
appellant must demonstrate that the excluded evidence was both controlling on a
material issue and not cumulative of other evidence.”) (citing Williams Distrib. Co.
v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995)). Second, because we conclude that
appellants did not present evidence raising a material fact issue on breach, we do
not reach the issue of reliance (i.e., whether appellants knew of The Woodlands
Land Development Company’s policy and relied on it to their detriment).
45
because LJA Engineering and Bowles “did not meet their traditional summary
judgment burden on duty or breach.”
In their traditional summary judgment motion, LJA Engineering and Bowles
were required to establish that no genuine issue of material fact existed and the trial
court should have granted judgment as a matter of law. See TEX. R. CIV. P. 166a(c);
Cathey, 900 S.W.2d at 341. To shift to appellants the burden to raise a genuine issue
of material fact precluding summary judgment, LJA Engineering and Bowles were
required to either disprove at least one essential element of appellants’ negligence
claims or plead and conclusively establish each essential element of an affirmative
defense. See Siegler, 899 S.W.2d at 197. In their summary judgment motion, LJA
Engineering and Bowles did not argue that appellants’ negligence claims were
barred by any affirmative defense. Thus, to shift to appellants the burden to raise a
genuine issue of material fact precluding summary judgment, LJA Engineering and
Bowles were required to disprove at least one essential element of appellants’
negligence claims.
1. Negligence and Gross Negligence Claims
In their motion for summary judgment, LJA Engineering and Bowles asserted
that they were entitled to summary judgment as a matter of law on appellants’
negligence and gross negligence claims because there was no duty or breach. LJA
Engineering and Bowles explained that appellants were homeowners in Timarron, a
46
subdivision that flooded during Hurricane Harvey. The Woodlands Land
Development Company “began the process of developing” Timarron by “taking
large tracks of raw land” and “dividing them into smaller (but still large) areas, called
sections; platting and obtaining government approval for those platted sections, with
specific streets and lots laid out; and causing the streets and major utilities to be
constructed.” (Internal footnote omitted.) During development, The Woodlands
Land Development Company contracted with LJA Engineering “to perform platting
and other engineering work in connection with” Timarron.
LJA Engineering and Bowles further explained that, after the development of
Timarron, appellants bought their properties directly from various third-party
builders. Neither LJA Engineering nor Bowles was involved in appellants’
purchases of their properties or with the building of appellants’ homes. And LJA
Engineering and Bowles “did not determine the final lot grading or slab heights for
any [of appellants’] propert[ies].”
According to LJA Engineering and Bowles, they were entitled to summary
judgment as a matter of law on appellants’ negligence and gross negligence claims
against them because appellants could not establish that LJA Engineering and
Bowles owed a duty to appellants, and even if a duty existed, LJA Engineering and
Bowles did not breach that duty.
47
More specifically, as to any negligence duty, the summary judgment motion
explained that whether a defendant owes a duty to a plaintiff “depends on several
factors, including risk, foreseeability, and likelihood of injury weighed against the
social utility of the actor’s conduct, the magnitude of the burden of guarding against
injury, and the consequences of placing the burden on the defendant.” (Internal
quotations omitted.) Further, the nature of the relationship between the plaintiff and
the defendant is a significant consideration in determining the existence of a duty of
care. LJA Engineering and Bowles cited Hartman v. Urban, 946 S.W.2d 546 (Tex.
App.—Corpus Christi–Edinburg 1997, no writ), for the proposition that “an engineer
who prepared [an] erroneous plat for [a] developer did not owe a duty to [the]
subsequent purchaser given [the] lack of [a] relationship with [the] subsequent
purchaser, even though it was foreseeable that [the] purchaser would rely on [the]
plat.” See id. at 550.
Additionally, in their summary judgment motion, LJA Engineering and
Bowles argued that none of the aforementioned Phillips factors, which were to be
considered in determining whether to impose a new legal duty on LJA Engineering
and Bowles, warranted imposing a duty on them. They reasoned that they had no
relationship with appellants and that Hurricane Harvey was an unprecedented storm,
which could not have been foreseen. Further, they argued, the risk of a
Hurricane-Harvey-like event was low, and the probability of injury was low “when
48
balanced against the social utility of [LJA Engineering and Bowles] complying with
existing [regulatory] standards, which [was] what they did.” The “magnitude or
burden would be great if [LJA Engineering and Bowles] had to undertake ultimate
responsibility and authority for construction of slab heights that would guard against
unforeseeable floods (usurping this from the [third-party] builder[s] to whom [the
properties were already sold]).” Additionally, they submitted, “placing the burden on
[LJA Engineering and Bowles] would result in highly undesirable consequences—
namely, forcing [them] to undertake unrealistic and cost-prohibitive oversight of
builders’ construction of slabs.” Thus, there was “no basis to impose upon [LJA
Engineering and Bowles] a duty owed toward downstream purchasers in negligence.”
In their response to the summary judgment motion, appellants argued that the
motion “d[id] not address any negligence by” LJA Engineering and Bowles.24 We
disagree. Appellees could have done more in their motion to differentiate between
arguments applicable to claims against all defendants and arguments only or more
specifically pertinent to claims against LJA Engineering and Bowles. But, as shown
above, it is not true that the motion did not address appellants’ negligence claims
against LJA Engineering and Bowles.
24
Instead, appellants, in their response, addressed only their negligence and gross
negligence claims against The Woodlands Land Development Company, arguing
that The Woodlands Land Development Company was not entitled to summary
judgment as a matter of law on those claims.
49
Moreover, the case law cited by LJA Engineering and Bowles was sufficient
to establish that LJA Engineering and Bowles, who had no contractual privity or
other relationship with appellants, owed appellants no duty. “Generally, one who
has sustained damages because of professional negligence may not proceed against
the professional unless there is privity of contract.” Ruch v. Ted W. Allen & Assocs.,
No. 01-15-01081-CV, 2017 WL 4682031, at *5 (Tex. App.—Houston [1st Dist.]
Oct. 19, 2017, pet. denied) (mem. op.) (quoting W. Hou. Airport, Inc. v. Millennium
Ins. Agency, 349 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (citing cases)). In their summary judgment motion, in support of their
argument that the nature of the relationship between a plaintiff and defendant is a
significant consideration in determining whether the defendant owes a duty to the
plaintiff, LJA Engineering and Bowles cited at least three cases holding that a
professional owed no duty to a non-client, two of which involved an engineering
firm. See Hartman, 946 S.W.2d at 550 (engineering firm); W. Hou. Airport, Inc.,
349 S.W.3d at 754 (insurance agency); Dagley v. Haag Eng’g Co., 18 S.W.3d 787,
791 (Tex. App.—Houston 2000, no pet.) (engineering firm).
2. Negligent Undertaking Claim
In the portion of their brief challenging the trial court’s summary judgment
ruling in favor of LJA Engineering and Bowles, appellants argue that appellees’
summary judgment motion on their negligence claims “was solely focused on the
50
Developer’s theory that its sole undertaking was to hire Pate, which again has
nothing to do with what the Engineers did once they had Pate’s incorrect estimates.”
That is incorrect. While much of that summary judgment motion’s language
concerns either all defendants or just The Woodlands Land Development Company
and Howard Hughes, LJA Engineering and Bowles are among the defendants
referenced in the broader language.
Between that language and the motion’s language specifically referencing
LJA Engineering and Bowles, LJA Engineering and Bowles’s argument regarding
appellants’ negligent undertaking claim was very similar to the argument made by
The Woodlands Land Development Company and Howard Hughes. LJA
Engineering and Bowles stated in their summary judgment motion on appellants’
negligence claims that Bowles is an employee of LJA Engineering, a fact that
appears to be undisputed. LJA Engineering and Bowles offered evidence that The
Woodlands Land Development Company hired LJA Engineering to perform
engineering work in connection with the development of Timarron and gave Pate’s
flood of record level determination to LJA Engineering to set minimum slab
elevations of six inches above the 1994 flood of record level as determined by Pate.
LJA Engineering and Bowles argued that appellants “cannot establish the elements
of negligent undertaking here because they cannot establish that Defendants
undertook, gratuitously or for consideration, to render services to another that they
51
knew or should have known were necessary for the protection of a third person.”
Further, LJA Engineering and Bowles argued that, if any duty was owed, LJA
Engineering and Bowles “did not breach it.”
More specifically, LJA Engineering and Bowles argued that, even assuming
they had a duty to exercise reasonable care in setting minimum slab elevations six
inches above the 1994 flood of record level, they fulfilled it. LJA Engineering and
Bowles argued that, “[t]o the extent that Plaintiffs argue that [LJA Engineering and
Bowles] should have double checked or independently assessed the IDS/Pate study,
they are arguing for an undertaking that [LJA Engineering and Bowles] simply
did not undertake.” LJA Engineering and Bowles argued, with support, that “the
duty is defined by the task that [LJA Engineering and Bowles] actually undertook,
and the question becomes whether [LJA Engineering and Bowles] exercised
reasonable care in performing that undertaking.” While the argument specific to LJA
Engineering and Bowles rather than the other defendants could be clearer in places,
LJA Engineering and Bowles argued further that it is undisputed that Pate’s “study
was used by [LJA Engineering and Bowles] to set minimum slab elevations six
inches above the level found by” Pate and that LJA Engineering and Bowles
“fulfilled what they undertook to do, set minimum slab elevations based on the 1994
flood of record as determined by” Pate.
52
Even assuming that LJA Engineering and Bowles owed a duty to appellants
to exercise reasonable care in setting minimum slab elevations six inches above
Pate’s 1994 flood of record level, appellants did not present any evidence raising a
genuine issue of material fact as to whether LJA Engineering and Bowles failed to
exercise reasonable care.25 See Nall, 404 S.W.3d at 555-56. Indeed, on appeal,
appellants argue only that “Defendants’ argument concerning the negligent
undertaking claim was solely focused on the Developer’s theory that its sole
undertaking was to hire Pate, which again has nothing to do with what the Engineers
did once they had Pate’s incorrect estimates.”26 We reject both appellants’ narrow
reading of the summary judgment motion and their position that LJA Engineering
and Bowles undertook to do something with Pate’s 1994 flood of record level other
than setting minimum slab elevations six inches above it. As such, we conclude that
the trial court did not err in granting summary judgment to LJA Engineering and
Bowles on appellants’ negligent undertaking claim.
25
Appellants state on appeal that: “After receiving Pate’s estimate of the 1994 Flood
levels, the Developer provided Pate’s estimate to its Engineers (LJA and Bowles)
and had them set a minimum slab elevation that was six inches above the 1994 Flood
level, as represented by Pate.”
26
Appellants cite as support for this statement pages 19 and 20 of the summary
judgment motion, in which LJA Engineering and Bowles argue that they had no
duty to appellants. That section of the summary judgment motion does not concern
only the The Woodlands Land Development Company and Howard Hughes. Nor
does the next section, encompassing pages 21 through 25 of the motion, in which
LJA Engineering and Bowles argue in part that they undertook to set minimum slab
elevations at six inches above Pate’s 1994 flood of record level and did so.
53
We overrule appellants’ third issue. Having done so, we also overrule the
portion of appellants’ second issue regarding causation as it pertains to LJA
Engineering and Bowles.
C. Howard Hughes
In their fourth issue, appellants argue that the trial court erred in granting
Howard Hughes summary judgment as a matter of law on appellants’ negligence,
gross negligence, and negligent undertaking claims because appellants “established
a genuine issue of fact on the [direct] liability” of Howard Hughes. Appellants assert
that Howard Hughes “was not a mere silent owner of [The Woodlands Land
Development Company],” but rather a direct participant in The Woodlands Land
Development Company’s activities.
In the trial court, Howard Hughes filed a combined no-evidence and
matter-of-law motion for summary judgment. In the no-evidence portion of Howard
Hughes’s summary judgment motion, it asserted that appellants could not establish
the elements of their negligence, gross negligence, and negligent undertaking claims,
including duty, breach, and causation, against Howard Hughes. And Howard Hughes
requested that the trial court grant its no-evidence summary judgment motion, in
addition to its matter-of-law summary judgment motion.
The trial court then signed an order granting Howard Hughes’s “Traditional
and No-Evidence Motion for Summary Judgment,” finding not only that Howard
54
Hughes was entitled to summary judgment “under traditional summary judgment
standards,” but also that “an adequate time for discovery ha[d] passed and there
[was] no evidence to support [appellants’ negligence, gross negligence, and
negligent undertaking claims] against [Howard Hughes].” Thus, the trial court also
found that Howard Hughes was “entitled to summary judgment under no-evidence
summary judgment standards.”
On appeal, appellants do not address the merits of Howard Hughes’s
no-evidence summary judgment motion.27 Instead, appellants focus solely on the
argument that Howard Hughes made in the matter-of-law summary judgment
motion, namely that it was entitled to judgment as a matter of law on appellants’
negligence, gross negligence, and negligent undertaking claims against it because it
was not involved in the development of Timarron, either directly or indirectly;
instead, it acquired an ownership interest in The Woodlands Land Development
27
We note that, in the “Issues Presented” section of appellants’ opening brief,
appellants mention Howard Hughes’s no-evidence motion for summary judgment,
listing their fourth issue as follows: “[W]as Howard Hughes entitled to traditional
and no-evidence summary judgment on [appellants’] direct-liability theory when
[appellants] offered evidence of Howard Hughes’s participation in the [Woodlands
Land Development Company’s] activities and that Howard Hughes knew of the
[Woodlands Land Development Company’s] negligently implemented policy?”
(Emphasis added.) But in the argument portion of appellants’ brief, appellants do
not address Howard Hughes’s summary judgment argument that no evidence
established the elements of appellants’ negligence, gross negligence, and negligent
undertaking claims. See TEX. R. APP. P. 38.1(i); see also Buggelli v. Feltis, No.
14-07-00027-CV, 2008 WL 4308333, at *2 (Tex. App.—Houston [14th Dist.] Aug.
28, 2008, no pet.) (mem. op.).
55
Company after Timarron was platted and was simply the parent company of The
Woodlands Land Development Company at the time appellants filed suit. Because
appellants have not challenged the merits of Howard Hughes’s no-evidence
summary judgment motion—that no evidence exists to support the elements of duty,
breach, and causation—we must affirm the trial court’s grant of summary judgment
on appellants’ negligence, gross negligence, and negligent undertaking claims in
favor of Howard Hughes. See, e.g., Hudson v. Mem’l Hosp. Sys., No.
01-19-00300-CV, 2021 WL 1414283, at *9 (Tex. App.—Houston [1st Dist.] Apr.
15, 2021, no pet.) (mem. op.) (affirming summary judgment where defendant filed
combined no-evidence and matter-of-law summary judgment motion, but plaintiff,
on appeal, did not challenge trial court’s granting of no-evidence summary
judgment); Little v. Delta Steel, Inc., 409 S.W.3d 704, 722-23 (Tex. App.—Fort
Worth 2013, no pet.) (affirming no-evidence summary judgment as to gross
negligence claim when appellant did not challenge merits of motion on that claim
on appeal); Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-00906-CV, 2007 WL
3293719, at *5 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.)
(affirming no-evidence summary judgment on premises-liability claim because, in
trial court, movant asserted no evidence was produced by non-movant on each
element of claim, but, on appeal, non-movant did not address two grounds); see also
56
Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of
summary judgment without properly assigned error).
We overrule appellants’ fourth issue. Having done so, we also overrule the
portion of appellants’ second issue regarding causation as it pertains to Howard
Hughes.28
Conclusion
We affirm the judgment of the trial court. Appellants’ February 10, 2025
Unopposed Motion to Exceed Word Limit for Motion for Panel Rehearing and
Rehearing En Banc is granted. Any other pending motions are denied as moot.
Amparo “Amy” Guerra
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.29
28
To the extent that appellants made additional arguments in their briefing, due to our
disposition, we do not address them. See TEX. R. APP. P. 47.1.
29
The Honorable Sarah Beth Landau and the Honorable Julie Countiss, former
Justices of this Court, were members of the Panel when the case was submitted and
participated in this Court’s decision in its superseded November 26, 2024 opinion
and judgment. Their terms of office expired on December 31, 2024, and they did
not participate in this decision.
57