NO. 13-14-00329-CV

* * * 

IN THE COURT OF APPEALS 

THIRTEENTH COURT OF APPEALS DISTRICT 

CORPUS CHRISTI, TEXAS 

* * * 

ALBERTO R. GARZA, ET AL., 

 Appellants

V.

MELDEN & HUNT, INC., 

 Appellee 

* * * 

BRIEF OF APPELLEE

* * * 

GONZALEZ, CHISCANO, ANGULO &

KASSON, P.C.

Henry B. Gonzalez III

State Bar No. 00794952

Taylor Williams

State Bar No. 24056536

613 N.W. Loop 410, Suite 800

San Antonio, Texas 78216

(210) 569-8500 

(210) 569-8490 (telecopier)

hbg@gcaklaw.com

twilliams@gcaklaw.com

THE LAW OFFICE OF JACQUELINE M.

STROH, P.C.

Jacqueline M. Stroh

State Bar No. 00791747

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

(210) 477-7416

(210) 477-7466 (telecopier)

jackie@strohappellate.com

ATTORNEYS FOR APPELLEE, MELDEN & HUNT, INC. 

APPELLEE CONDITIONALLY REQUESTS ORAL ARGUMENT

ACCEPTED

13-14-00329-CV

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

1/12/2015 6:14:57 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 1/12/2015 6:14:57 PM DORIAN E. RAMIREZ Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellee 

presents the following list of all parties to the judgment and their counsel: 

1. Appellants/Plaintiffs Below

Alberto R. Garza

Leticia I. Garza

2. Counsel for Appellants

Alberto T. Garcia, III Trial/Appellate Counsel

Adrian R. Martinez

Garcia & Martinez, L.L.P.

6900 N. 10th Street, Suite 2

McAllen, Texas 78504

albert@garmtzlaw.com

adrian@garmtzlaw.com

3. Appellee/Defendant Below

Melden & Hunt, Inc.

4. Counsel for Appellee

Henry B. Gonzalez III Trial/Appellate Counsel

Taylor Williams

Gonzalez, Chiscano, Angulo & Kasson, P.C.

613 N.W. Loop 410, Suite 800

San Antonio, Texas 78216

hbg@gcaklaw.com

twilliams@gcaklaw.com

Jacqueline M. Stroh Appellate Counsel

The Law Office of Jacqueline M. Stroh, P.C.

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

jackie@strohappellate.com
iii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS......................................................................................... iii

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE.................................................................................xi

STATEMENT REGARDING ORAL ARGUMENT .......................................... xvii

RESPONSIVE ISSUES PRESENTED ............................................................... xviii

Issue No. 1:

Whether the Court should affirm the trial court’s summary judgment 

in its entirety. 

The Garzas failed to challenge every summary-judgment ground 

asserted by Melden & Hunt and, thus, failed to challenge every 

ground on which the trial court’s general summary-judgment grant 

rests. Included among those grounds is the binding effect of the 

Court’s prior opinion on the legal question of accrual pursuant to the 

law-of-the-case doctrine and the resultant limitations bar to all of the 

Garzas’ claims. Even assuming the Garzas had lodged an appellate 

challenge to that ground, they nevertheless waived review by failing 

to assert any challenge below in their summary-judgment response. 

Instead, they rightly admitted the opinion’s binding and preclusive 

effect.

Moreover, the Garzas waived the only appellate point they present on 

appeal to challenge the summary judgment on limitations regarding 

the characterization of the nuisance as temporary. Below, the Garzas 

never complained in their summary-judgment response that the 

nuisance in question should be characterized as temporary, never 

argued for application of different accrual principles, and never 

argued for use of a different accrual date other than the one employed 
iv

by Melden & Hunt. They never identified the existence of any fact 

issue; rather, they conceded and admitted both the permanent nature 

of the nuisance and the propriety of summary-judgment on 

limitations. Regardless, even if the Court were to review the Garzas’ 

otherwise inadequately briefed point, Melden & Hunt established its 

entitlement to judgment as a matter of law by arguing limitations as 

applicable to their nuisance claim and by proving accrual nearly a 

decade before suit was filed. The Garzas’ own testimony admitted 

chronic flooding to their property and home on a virtually annual 

basis both before and after suit, allegedly from a permanent source –

establishing the permanent nature of the claimed nuisance as a matter 

of law. ........................................................................................................ xviii

Issue No. 2:

Whether, at the least, the Court should affirm the trial court’s 

summary judgment on the Garzas’ claim for exemplary damages.

In response to Melden & Hunt’s no-evidence motion on the Garzas’ 

claim for exemplary damages, the Garzas offered only a general 

reference to the entirety of their summary-judgment evidence, with no 

identification of which portions of that evidence purportedly raised 

fact issues and with no delineation of what specific fact issues that 

evidence supposedly raised. Additionally, the Garzas failed to plead 

any basis for imputing liability for exemplary damages to the 

corporate entity, failed to offer any response to Melden & Hunt’s noevidence motion on any imputation theory, and failed to make any 

appellate challenge on that ground. Finally, the evidence cited in the 

Garzas’ opening brief and otherwise offered by the Garzas is 

incompetent and/or wholly insufficient to constitute any evidence –

much less clear and convincing evidence – of malice and gross 

negligence. ................................................................................................. xviii

RESPONSE TO APPELLANTS’ STATEMENT OF FACTS .................................1

SUMMARY OF THE ARGUMENT ........................................................................4

ARGUMENT AND AUTHORITIES........................................................................8
v

I. The Trial Court’s Summary Judgment in Favor of Melden & Hunt 

Should Be Affirmed in Its Entirety..................................................................8

II. The Garzas Have Failed to Demonstrate Error in the Trial Court’s 

Summary Judgment Grounded in Limitations ..............................................11

A. The Garzas Have Failed to Attack All Bases for the Trial 

Court’s Summary Judgment – Most Notably, the Preclusive 

Effect of This Court’s Prior Opinion on Accrual – and the 

Summary Judgment in Melden & Hunt’s Favor Must Therefore 

Be Affirmed.........................................................................................11

B. Even Assuming the Garzas’ Appeal Encompasses a Challenge 

to the Preclusive Effect of This Court’s Prior Opinion on 

Accrual, the Trial Court’s Judgment Must Still Be Affirmed ............13

C. The Garzas Concede That the Trial Court Properly Granted 

Summary Judgment on Virtually All of Their Claims and 

Neglected to Raise Below (and Have Thus Waived) the Only 

Issue in Avoidance They Now Assert on Appeal ...............................17

1. The Garzas Failed to Assert Any Argument in Response 

to the Summary Judgment That Its Nuisance Claim 

Should Be Governed by Different Accrual Principles .............17

2. Regardless, Any Existent Nuisance Is Permanent as a 

Matter of Law and Accrued with the First Flooding 

Event, Which Occurred in 2000 at the Latest – Nearly a 

Decade before the Garzas Filed Suit – Even Indulging the 

Garzas’ Inadequate Briefing .....................................................22

III. The Garzas Have Also Failed to Demonstrate Error in the Trial 

Court’s Summary Judgment on Their Claim for Exemplary Damages........33

A. Because the Garzas Have No Claim for Actual Damages, the 

Summary Judgment on Their Claim for Exemplary Damages 

Must Be Affirmed ...............................................................................33

B. Even Assuming That the Court Would Reverse the Trial 

Court’s Judgment on the Garzas’ Nuisance Claim, Contrary to 
vi

the Court’s Prior Opinion, the Garzas’ Concessions and 

Admissions, Governing Case Law, and the Record Evidence, 

the Garzas Nevertheless Cannot Prevail on Their Claim for 

Exemplary Damages............................................................................35

1. The Garzas Nowhere Pled or Offered Evidence to Impute 

Liability for Exemplary Damages to Melden & Hunt..............35

2. The Garzas Failed to Explain in Their Response, Beyond 

a General Reference to Their Summary-Judgment 

Evidence, the Existence of Any Fact Issues on Their 

Claim for Exemplary Damages and, Again, Present 

Nothing for Review ..................................................................37

3. The Governing Standard of Review of Melden & Hunt’s 

No-Evidence Motion on Malice and Gross Negligence 

Should Require Clear and Convincing Evidence .....................40

4. The Garzas Failed to Raise a Fact Issue on Malice or 

Gross Negligence ......................................................................43

PRAYER..................................................................................................................48

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMITATION............................................................................................49

CERTIFICATE OF SERVICE ................................................................................49

APPENDIX................................................................................................A-1 to A-2

Melden & Hunt, Inc. v. Garza, No. 13-11-00594-CV, 

2013 WL 3517743 (Tex. App. – Corpus 

Christi, Jul. 11, 2013, no pet.) (mem. op.).......................................... A-1

TEX. R. CIV. P. 166a........................................................................................ A-2
vii

INDEX OF AUTHORITIES

Page

CASES

Affordable Motor Co., Inc. v. LNA, LLC, 

351 S.W.3d 515 (Tex. App. – Dallas 2011, pet. denied)......................................21

AGD, L.P. v. Quest Principal Investments, Inc., 

No. 13-12-00720-CV, 2014 WL 6602314 

(Tex. App. – Corpus Christi, Nov. 20, 2014, no pet.)................................... 21, 22

Baldwin v. Northrop Grumman Information Technology, 

No. 03-09-00654-CV, 2011 WL 182880 

(Tex. App. – Austin, Jan. 21, 2011, no pet.) (mem. op.)......................................13

Baxter v. Gardere Wynne Sewell LLP, 

182 S.W.3d 460 (Tex. App. – Dallas 2006, pet. denied)............................... 20, 22

Branton v. Wood, 

100 S.W.3d 645 (Tex. App. – Corpus Christi 2003, no pet.)...............................46

Briscoe v. Goodmark Corp., 

102 S.W.3d 714 (Tex. 2003) ................................................................................14

City of Amarillo v. Ware, 

120 Tex. 456, 40 S.W.2d 57 (1931) .....................................................................27

City of Houston v. Precast Structures, Inc., 

60 S.W.3d 331 (Tex. App. – Houston [14th Dist.] 2001, pet. denied).................16

City of Princeton v. Abbott, 

792 S.W.2d 161 (Tex. App. – Dallas 1990, writ denied).....................................29

Clawson v. Wharton County, 

941 S.W.2d 267 (Tex. App. – Corpus Christi 1996, writ denied)........................36

Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue, 

271 S.W.3d 238 (Tex. 2008) ......................................................................... 40, 46
viii

Cornerstones Mun. Utility Dist. v. Monsanto Co., 

889 S.W.2d 570 (Tex. App. – Houston [14th Dist.] 1994, writ denied)..............21

D.R. Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 

300 S.W.3d 740 (Tex. 2009) ................................................................................21

De La Pena v. Elzinga, 

980 S.W.2d 920 (Tex. App. – Corpus Christi 1998, no pet.)...............................24

Desiga v. Scheffey, 

874 S.W.2d 244 (Tex. App. – Houston [14th Dist.] 1994, no writ).....................26

DR Partners v. Floyd, 

228 S.W.3d 493 (Tex. App. – Texarkana 2007, pet. denied)...............................42

Durden v. City of Grand Prairie, 

626 S.W.2d 345 (Tex. App. – Fort Worth 1981, writ ref’d n.r.e.).......................29

Fein v. R.P.H., Inc., 

68 S.W.3d 260 (Tex. App. – Houston [14th Dist.] 2002, pet. denied).................41

FFE Transp. Servs., Inc. v. Fulgham, 

154 S.W.3d 84 (Tex. 2004)...................................................................................45

Forbes, Inc. v. Granada Biosciences, Inc., 

124 S.W.3d 167 (Tex. 2003) ......................................................................... 42, 43

Fort Worth Star-Telegram v. Street, 

61 S.W.3d 704 (Tex. App. – Fort Worth 2001, pet. denied)................................42

Freedom Newspapers of Tex. v. Cantu, 

168 S.W.3d 847 (Tex. 2005) ................................................................................43

Gomez de Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C., 

204 S.W.3d 473 (Tex. App. – Corpus Christi 2006, pet. denied) ........................34

Graham v. Pirkey, 

212 S.W.3d 507 (Tex. App. – Austin 2006, no pet.)............................................19
ix

Gray v. Woodville Health Care Ctr., 

225 S.W.3d 613 (Tex. App. – El Paso 2006, pet. denied)....................................30

Guevara v. Lackner, 

447 S.W.3d 566 (Tex. App. – Corpus Christi 2014, no pet.)...............................39

Hammerly Oaks, Inc. v. Edwards, 

958 S.W.2d 387 (Tex. 1997) ................................................................................35

Hardy v. Bennefield, 

368 S.W.3d 643 (Tex. App. – Tyler 2012, no pet.)..............................................42

HECI Exploration Co. v. Neel, 

982 S.W.2d 881 (Tex. 1998) ................................................................................19

HIS Cedars Treatment Ctr. v. Mason, 

143 S.W.3d 794 (Tex. 2004) ................................................................................45

Holt v. Hale, 

No. 04-14-00113-CV, 2014 WL 5838937 

(Tex. App. – San Antonio, Nov. 12, 2014, no pet.) (mem. op.)...........................36

Huckabee v. Time Warner Entertainment Co., 

19 S.W.3d 413 (Tex. 2000)...................................................................................42

Hyman Farm Serv., Inc. v. Earth Oil & Gas Co., Inc., 

920 S.W.2d 452 (Tex. App. – Amarillo 1996, no writ) .......................................36

In re C.J.F., 

134 S.W.3d 343 (Tex. App. – Amarillo 2003, pet. denied) .................................41

In re Guardianship of Cantu de Villarreal, 

330 S.W.3d 11 (Tex. App. – Corpus Christi 2010, no pet.).................................14

In re J.F.C., 

96 S.W.3d 256 (Tex. 2002)...................................................................... 41, 42, 43

In re K.M.S., 

91 S.W.3d 331 (Tex. 2002)...................................................................................16
x

JPMorgan Chase Bank, N.A. v. Professional Pharmacy II, 

___ S.W.3d ___, 2014 WL 7473779 

(Tex. App. – Fort Worth, Dec. 31, 2014, no pet. h.) ............................................19

King Ranch, Inc. v. Chapman, 

118 S.W.3d 742 (Tex. 2003) ................................................................................41

Klentzman v. Brady, 

312 S.W.3d 886 (Tex. App. – Houston [1st Dist.] 2009, no pet.)........................42

Krueger v. Atascosa County, 

155 S.W.3d 614 (Tex. App. – San Antonio 2004, no pet.) ..................................20

La Tierra de Simmons Familia, Ltd. v. Main Entertainment, LP, 

No. 03-10-00503-CV, 2012 WL 753184 

(Tex. App. – Austin, Mar. 9, 2012, pet. denied) (mem. op.)................................28

Loram Maintenance of Way, Inc. v. Ianni, 

210 S.W.3d 593 (Tex. 2006) ................................................................................13

Malooly Bros., Inc. v. Napier,

461 S.W.2d 119 (Tex. 1970) ................................................................................12

McConnell v. Southside Indep. Sch. Dist., 

858 S.W.2d 337 (Tex. 1993) ................................................................................38

Melden & Hunt, Inc. v. Garza, 

No. 13-11-00594-CV, 2013 WL 3517743 (Tex. App. –

Corpus Christi, Jul. 11, 2013, no pet.) (mem. op.) ................... vi, 3, 15, 16, 23, 25

Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 

606 S.W.2d 692 (Tex. 1980) ................................................................................24

Mercier v. Southwestern Bell Yellow Pages, Inc., 

214 S.W.3d 770 (Tex. App. – Corpus Christi 2007, no pet.)...............................38

Mitchell v. Timmerman, 

No. 03-08-00320-CV, 2008 WL 5423268 

(Tex. App. – Austin, Dec. 31, 2008, no pet.) (mem. op.).....................................28
xi

Mobil Oil Corp. v. Ellender, 

968 S.W.2d 917 (Tex. 1998) ................................................................................35

Moreno v. Sterling Drug, Inc., 

787 S.W.2d 348 (Tex. 1990) ................................................................................13

Murphy v. Reynolds, 

No. 02-10-00229-CV, 2011 WL 4502523

(Tex. App. – Fort Worth 2011, no pet.) (mem. op.).............................................39

New Times, Inc. v. Isaacks, 

146 S.W.3d 144 (Tex. 2004) ................................................................................43

Pardo v. Simons, 

148 S.W.3d 181 (Tex. App. – Waco 2004, no pet.) .............................................42

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) ...................................................45

Pena v. State Farm Lloyds, 

980 S.W.2d 949 (Tex. App. – Corpus Christi 1998, no pet.)...............................12

Perez v. Perez, 

No. 09-05-00024-CV, 2005 WL 2092807 

(Tex. App. – Beaumont, Aug. 31, 2005, no pet.) (mem. op.) ..............................41

Pisharodi v. Six, 

No. 13-07-00019-CV, 2008 WL 3521330 

(Tex. App. – Corpus Christi, Aug. 7, 2008, no pet.) (mem. op.) .........................13

Pitman v. Lightfoot, 

937 S.W.2d 496 (Tex. App. – San Antonio 1996, writ denied)...........................14

Pope v. John Kiella Homes, 

No. 07-06-00146-CV, 2008 WL 1903332 

(Tex. App. – Amarillo, Apr. 30, 2008, no pet.) (mem. op.) .................................28
xii

Ramirez v. First Liberty Ins. Corp., 

___ S.W.3d ___, 2014 WL 6766688 

(Tex. App. – El Paso, Dec. 1, 2014, no pet. h.)....................................................37

Rea v. Coffer, 

879 S.W.2d 224 (Tex. App. – Houston [14th Dist.] 1994, no writ).....................26

Rogers v. Ricane Enterprises, Inc., 

772 S.W.2d 76 (Tex. 1989)...................................................................................39

Rosenthal v. Taylor, B. & H. Ry. Co., 

79 Tex. 325, 15 S.W. 268 (1891) .........................................................................28

San Jacinto River Auth. v. Duke, 

783 S.W.2d 209 (Tex. 1990) ................................................................................36

Sanchez v. Mica Corp., 

107 S.W.3d 13 (Tex. App. – San Antonio, 2002, 

pet. granted; judgmn’t vacated in part w.r.m.) .....................................................33

Sandhu v. Pinglia Investments of Tex., L.L.C., 

No. 14-08-00184-CV, 2009 WL 1795032 

(Tex. App. – Houston [14th Dist.], Jun. 25, 2009, pet. denied) (mem. op.) ........38

Schneider Nat’l Carriers, Inc. v. Bates, 

147 S.W.3d 264 (Tex. 2004) ............................... 10, 19, 23, 24, 25, 29, 30, 31, 32

Smith v. O’Donnell, 

288 S.W.3d 417 (Tex. 2009) ................................................................................46

Southwestern Bell Tel. Co. v. Garza, 

164 S.W.3d 607 (Tex. 2004) ......................................................................... 40, 41

State Bd. of Ins. v. Westland Film Indus., 

705 S.W.2d 695 (Tex. 1986) ................................................................................20

Sullivan v. Brokers Logistics, Ltd., 

357 S.W.3d 833 (Tex. App. – El Paso 2012, pet. denied)....................................31
xiii

Tennessee Gas Transmission Co. v. Fromme, 

153 Tex. 352, 269 S.W.2d 336 (1954) .................................................................25

Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 

106 S.W.3d 118 (Tex. App. – Houston [1st Dist.] 2002, pet. denied).................46

THI of Tex. at Lubbock I, LLC v. Perea, 

329 S.W.2d 548 (Tex. App. – Amarillo 2010, pet. denied) .................................35

Timpte Indus., Inc. v. Gish, 

286 S.W.3d 306 (Tex. 2009) ................................................................................xv

Transportation Ins. Co. v. Moriel, 

879 S.W.2d 10 (Tex. 1994)...................................................................................47

Trinity River Auth. v. URS Consultants, Inc.-Tex., 

889 S.W.2d 259 (Tex. 1994) ..................................................................................3

Trousdale v. Henry, 

261 S.W.3d 221 (Tex. App. – Houston [14th Dist.] 2008, pets. denied).............24

U-Haul Int’l, Inc. v. Waldrip, 

380 S.W.3d 118 (Tex. 2012) ......................................................................... 40, 44

Unifund CCR Partners v. Weaver, 

262 S.W.3d 796 (Tex. 2008) ................................................................................12

Vice v. Kasprzak, 

318 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2009, pet. denied).....................38

Western Investments, Inc. v. Urena, 

162 S.W.3d 547 (Tex. 2005) ................................................................................37

Yalamanchili v. Mousa, 

316 S.W.3d 33 (Tex. App. – Houston [14th Dist.] 2010, pet. denied).................28

Zacharie v. U.S. Natural Resources, Inc., 

94 S.W.3d 748 (Tex. App. – San Antonio 2002, no pet.) ....................................25
xiv

STATUTES

TEX. CIV. PRAC. & REM. CODE § 16.003(a) (West 2002) ........................................18

TEX. CIV. PRAC. & REM. CODE § 17.565 (West 2011).............................................19

TEX. CIV. PRAC. & REM. CODE § 41.001(2) (West 2014)........................................40

TEX. CIV. PRAC. & REM. CODE § 41.001(7) (West 2014)........................................44

TEX. CIV. PRAC. & REM. CODE § 41.001(11) (West 2014)......................................44

TEX. CIV. PRAC. & REM. CODE § 41.003(a)(3) (West 2014)....................................40

TEX. CIV. PRAC. & REM. CODE 150.001 (West 2011)..............................................15

TEX. CIV. PRAC. & REM. CODE 150.002 (West 2011)................................... 2, 15, 16

TEX. CIV. PRAC. & REM. CODE 150.002(a) (West 2011) .........................................15

TEX. CIV. PRAC. & REM. CODE 150.002(b) (West 2011).........................................15

RULES

TEX. R. APP. P. 9.4(i)................................................................................................48

TEX. R. APP. P. 38.1(a).............................................................................................. ii

TEX. R. APP. P. 38.1(i)....................................................................................... 29, 45

TEX. R. CIV. P. 166a ................................................................................................. vi

TEX. R. CIV. P. 166a(c)................................................................................ 13, 18, 37

TEX. R. CIV. P. 301...................................................................................................41
xv

STATEMENT OF THE CASE

Nature of the Case: Plaintiffs, Alberto R. Garza and Leticia I. Garza, along with 

their children, filed suit against Melden & Hunt, Inc. (among 

others) on April 22, 2008, seeking monetary relief and 

asserting claims for negligence, negligent misrepresentation, 

nuisance, and DTPA violations. (CR 47-53)

1

 The Garzas 

later added a claim against Melden & Hunt for an alleged 

violation of the Texas Water Code. (CR 99; SCR 18) All of 

the Garzas’ claims were based on Melden & Hunt’s 

preparation of a survey of their subdivision and arose out of 

the flooding of their property, which first occurred in 1999 

or 2000. (CR 48, 80, 95-96) 

Trial court: The Honorable Jaime Tijerina of the 92nd Judicial District 

Court, Hidalgo County, Texas.

Trial Court’s 

Disposition: The trial court signed an Order Granting Partial Summary 

Judgment in Favor of Melden & Hunt, Inc. and Granting 

Motion to Sever on May 16, 2014, rendering a take-nothing 

judgment only as to the adults’ claims. (CR 330-33) The 

order in question disposed of all claims asserted by Alberto 

R. Garza and Leticia I. Garza against Melden & Hunt, and 

the severance resulted in a final judgment for appeal. See, 

e.g., Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 

2009). (CR 331)

Parties in the

Court of Appeals: The Appellants, Alberto R. Garza and Leticia I. Garza, were

Plaintiffs below. Appellee, Melden & Hunt, Inc., was a 

Defendant below. 

 

1 Appellee will refer to the clerk’s record using the notation “CR,” will refer to the supplemental 

clerk’s record using the notation “SCR,” and will refer to the reporter’s record from the 

summary-judgment hearing as “RR.” The relevant page numbers will appear after each 

reference. The second supplemental clerk’s record that Appellee intends to request will be cited 

with the notation “2 SCR” following the same format as references to the clerk’s record. 

Appellee reserves its right to file an amended brief to include those supplemental record 

references, once the second supplemental clerk’s record has been filed with the Court.
xvi

Requested 

Disposition from

This Court: Appellee Melden & Hunt, Inc. requests that the Court affirm 

the trial court’s judgment and that the Court award Appellee

its costs on appeal. 
xvii

STATEMENT REGARDING ORAL ARGUMENT

Appellee Melden & Hunt, Inc. believes that this appeal may be decided in its 

favor without the need for oral argument. Based on the parties’ briefing, the Court 

has sufficient information to affirm the trial court’s judgment based on wellestablished principles concerning the law-of-the-case doctrine, summary-judgment 

procedure, error preservation, the Garzas’ concessions and admissions, the parties’ 

respective burdens, the characterization of the nuisance in question as permanent 

as a matter of law, as well as the complete lack of any evidence (much less clear 

and convincing evidence) of malice or gross negligence. However, to the extent 

the Court determines that oral argument would be helpful, Appellee would like to 

participate.
xviii

RESPONSIVE ISSUES PRESENTED

Issue No. 1:

Whether the Court should affirm the trial court’s summary judgment in its entirety. 

The Garzas failed to challenge every summary-judgment ground asserted by 

Melden & Hunt and, thus, failed to challenge every ground on which the trial 

court’s general summary-judgment grant rests. Included among those grounds is 

the binding effect of the Court’s prior opinion on the legal question of accrual 

pursuant to the law-of-the-case doctrine and the resultant limitations bar to all of 

the Garzas’ claims. Even assuming the Garzas had lodged an appellate challenge 

to that ground, they nevertheless waived review by failing to assert any challenge 

below in their summary-judgment response. Instead, they rightly admitted the 

opinion’s binding and preclusive effect. 

Moreover, the Garzas waived the only appellate point they present on appeal to 

challenge the summary judgment on limitations regarding the characterization of 

the nuisance as temporary. Below, the Garzas never complained in their summaryjudgment response that the nuisance in question should be characterized as 

temporary, never argued for application of different accrual principles, and never 

argued for use of a different accrual date other than the one employed by Melden 

& Hunt. They never identified the existence of any fact issue; rather, they 

conceded and admitted both the permanent nature of the nuisance and the propriety 

of summary-judgment on limitations. Regardless, even if the Court were to review 

the Garzas’ otherwise inadequately briefed point, Melden & Hunt established its 

entitlement to judgment as a matter of law by arguing limitations as applicable to 

their nuisance claim and by proving accrual nearly a decade before suit was filed. 

The Garzas’ own testimony admitted chronic flooding to their property and home 

on a virtually annual basis both before and after suit, allegedly from a permanent 

source – establishing the permanent nature of the claimed nuisance as a matter of 

law. 

Issue No. 2:

Whether, at the least, the Court should affirm the trial court’s summary judgment 

on the Garzas’ claim for exemplary damages.

In response to Melden & Hunt’s no-evidence motion on the Garzas’ claim for 

exemplary damages, the Garzas offered only a general reference to the entirety of 
xix

their summary-judgment evidence, with no identification of which portions of that 

evidence purportedly raised fact issues and with no delineation of what specific 

fact issues that evidence supposedly raised. Additionally, the Garzas failed to 

plead any basis for imputing liability for exemplary damages to the corporate 

entity, failed to offer any response to Melden & Hunt’s no-evidence motion on any 

imputation theory, and failed to make any appellate challenge on that ground. 

Finally, the evidence cited in the Garzas’ opening brief and otherwise offered by 

the Garzas is incompetent and/or wholly insufficient to constitute any evidence –

much less clear and convincing evidence – of malice and gross negligence.
1

RESPONSE TO APPELLANTS’ STATEMENT OF FACTS

Melden & Hunt, Inc. is a Texas corporation that provides professional 

surveying and engineering services. (CR 76) In the context of this case, Melden &

Hunt performed surveying work in connection with the Chateau Estates 

subdivision in Edinburg, Texas. (CR 76) Melden & Hunt completed the survey 

field work on April 24, 1997 and reduced the results of the survey to a written plat 

on April 27, 1997. (CR 76) A final copy of the plat was submitted for final 

approval and recordation on October 3, 1997. (CR 76, 78) Melden & Hunt had no 

duties with respect to the construction of houses on the project. (CR 76) 

On November 18, 1998, Alberto Garza purchased a home in Chateau Estates 

subdivision from Burch Construction, Inc. (CR 80) In 1999 or 2000, Mr. Garza 

testified that he first noticed ponding occurring in his backyard, prompting him to 

contact the builder for a solution. (CR 60, 69, 80) Thereafter, Mr. Garza offered 

proof that his and his wife’s property and home experienced “chronic” flooding 

and “repeated severe flooding of their home on numerous occasions.” (CR 121, 

131, 217) 

Specifically, Mr. Garza testified on March 25, 2010 that he had experienced 

flooding of his property that infiltrated his home – his kitchen, his living room, his 

master bedroom – during the past 11 years on at least an annual basis, the only 

exception being during the first two or three years during a drought. (2 SCR ___) 
2

He produced annotated photographs in 2010 that again represented he had 

experienced flooding of his home for the past 10 years. (2 SCR ___) His former 

neighbor confirmed that Mr. Garza complained to him about water from the 

backyard coming inside the home and flooding the family room at some point prior 

to December 2004 and that Mr. Garza constructed a berm at some point prior to 

March 2005 to help alleviate the flooding. (CR 60, 69; 2 SCR ___) Mr. Garza also 

testified to instances of water intrusion prior to two additional flooding events in 

August 2007 and again in 2008. (CR 80, 131) 

Ultimately, the Garzas, along with their minor daughters, filed suit against 

Melden & Hunt, Inc.; Gary Burch, individually, and Burch Construction, Inc. on 

April 22, 2008. (CR 47-53) Gary Burch was later dropped from the litigation. 

(CR 94-102) By their complaint, the Garzas alleged theories against Melden & 

Hunt for negligence, negligent misrepresentation, nuisance, DTPA violations, and, 

ultimately, violations of the Texas Water Code. (CR 47-53, 94-102; SCR 13-20) 

In their first and subsequent pleadings, the Garzas asserted that their home flooded 

on several occasions, resulting in a total loss of value. (CR 49, 96; SCR 15) Later, 

Mr. Garza testified to post-suit and continuing problems with the flooding of his 

property. (CR 199) 

When the Garzas originally filed suit against Melden & Hunt, they failed to 

include a certificate of merit as required by section 150.002 of the Texas Civil 
3

Practice & Remedies Code. (CR 47-53) Melden & Hunt moved to dismiss the 

Garzas’ claim, which the trial court denied. Melden & Hunt, Inc. v. Garza, No. 13-

11-00594-CV, 2013 WL 3517743, *1 (Tex. App. – Corpus Christi, Jul 11, 2013, 

no pet.) (mem. op.). Melden & Hunt then appealed the denial of their motion to 

dismiss to the Thirteenth Court of Appeals. However, the Court held that, in order

for it to have jurisdiction over the interlocutory appeal under chapter 150, the 

Garzas’ cause of action had to have accrued on or after September 1, 2005. Id. at 

*2. The Court addressed directly when the Garzas’ claim accrued and held that the 

Garzas’ “cause of action accrued before September 1, 2005.” Id. 

Upon issuance of the Court’s mandate, Melden & Hunt moved for summary 

judgment on limitations only as to the adult Garzas’ claims, arguing the preclusive 

effect of the Court’s prior opinion on accrual and establishing the accrual date as a 

matter of law regardless. (CR 62, 65-92) Melden & Hunt also moved for a noevidence summary judgment on the Garzas’ claim for exemplary damages. (SCR 

21-30) The Garzas responded to the limitations grounds by (wrongly) asserting 

that the statute of repose2preempted the applicable limitations provision and 

thereby extended the limitations period from two to ten years. (CR 108-09) In 

answer to Melden & Hunt’s no-evidence motion on exemplary damages, the 

 

2

“Unlike traditional limitations provisions, which begin running upon accrual of a cause of 

action, a statute of repose runs from a specified date without regard to accrual of any cause of 

action” and vests in the defendant a substantive right against the threat of claims. Trinity River 

Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259, 261 (Tex. 1994). 
4

Garzas made a single, blanket reference to the entirety of their summary-judgment 

evidence – never discussing the existence of any specific fact issue or addressing 

any particular portion of the evidence. (CR 109-10) Additionally, the response 

asserted that the Garzas’ home flooded “from even moderately heavy rainfall [and] 

has suffered substantial damage and a total loss in value.” (CR 104)

The trial court held a hearing on April 16, 2014 on both Melden & Hunt’s 

and Co-Defendant Burch Construction, Inc.’s summary-judgment motions. (RR) 

At the hearing, counsel for the Garzas acknowledged both that the Court’s prior 

opinion had “crystallized” the limitations issue (RR 15-16) and that application of a 

two-year limitations period “could be very determinative of a lot of the causes of 

action in this case. If it’s the 10 year [statute of repose] we’ve got a case that’s 

going forward and should be tried.” (RR 61) Thereafter, the trial court signed an 

Order Granting Partial Summary Judgment in Favor of Defendant Melden & Hunt, 

Inc. and Granting Motion to Sever on May 16, 2014. (CR 330-33) This appeal 

followed. (CR 330-33) 

SUMMARY OF THE ARGUMENT

In an argument of less than nine pages, the Garzas seek to convince the 

Court that the trial court erred in granting summary judgment in favor of Melden &

Hunt. The Garzas’ curt discussion, however, neglects to inform the Court that the 

Garzas, through their procedural failings, have presented nothing for review. 
5

Moreover, their facile take on the law of nuisance and on the summary judgment 

evidence fall far short of demonstrating reversible error.

Melden & Hunt moved for summary judgment on limitations based both on 

the Court’s prior opinion determining accrual as a matter of law and on Melden & 

Hunt’s own independent demonstration of accrual more than two years prior to suit 

(two years being the applicable limitations period). The Garzas have attacked only 

the latter ground. Both on appeal and in the trial court, the Garzas never 

mentioned or acknowledged the Court’s prior opinion, except in their concession 

that the Court’s earlier decision had “crystallized” the limitations issues. Given 

their concession and the lack of any challenge, the Court has no choice but to 

affirm. Indeed, absent any new or additional facts, legal analysis, or argument that 

would cast doubt on the Court’s earlier disposition (of which the Garzas offered 

none), the Court’s prior opinion binds as a matter of law pursuant to the law-ofthe-case doctrine. 

In the only appellate challenge lodged as to limitations, the Garzas challenge 

the trial court’s summary-judgment ruling only as to their nuisance claim –

conceding the propriety of the grant on all other claims and the sufficiency of 

Melden & Hunt’s summary-judgment showing. With respect to their nuisance 

claim, the Garzas contend that the nuisance in question is temporary rather than 

permanent, resulting in the application of different accrual principles and a 
6

subsequent accrual date. But the Garzas never made any such argument below. 

Rather, their pleadings affirmatively acknowledged the chronic and repeated 

flooding events they claim to have suffered, both to their property and to their 

home. Indeed, their counsel expressly conceded at the summary-judgment hearing 

that, should the Court apply the applicable two-year limitations period, the Garzas’ 

claims could not survive. 

To avoid their resultant waiver, the Garzas refashion their true complaint 

into one that challenges the sufficiency of Melden & Hunt’s summary-judgment 

showing. Given the Garzas’ judicial admissions regarding the permanent nature of 

the alleged nuisance, Melden & Hunt had no obligation to make any showing in 

that regard. Regardless, the Garzas belatedly raise an issue in avoidance of 

summary judgment by arguing that the nuisance in question was temporary as a 

matter of law or that (unidentified) fact issues exist regarding the proper 

characterization. And those issues in avoidance had to be raised via a written 

response in order to be presented on appeal. Summary-judgment precedent 

requires arguments asserting application of different limitations or accrual 

principles to be preserved in a response at the trial court level.

Nevertheless, Melden & Hunt proved that any such nuisance deserves 

characterization as permanent as a matter of law, having argued an across-theboard limitations bar, having specifically identified the Garzas’ nuisance claim, 
7

having expressly argued for an accrual date applicable to permanent nuisances, and 

having expressly argued against application of accrual principles applicable to 

temporary nuisance – coupled with a summary-judgment record in which the 

Garzas acknowledge multiple, repeated, chronic flooding of their property and 

home on an annual basis since shortly after they purchased their home and from an 

alleged source permanent in nature. To the extent the Court were to indulge the 

Garzas’ inadequate briefing of any alleged insufficiency of the motion below, there 

is no error in the trial court’s summary-judgment grant, which must be affirmed.

As for the only other appellate challenge asserted by the Garzas, they again 

neglect to inform the Court of their terse and determinative response below. In a 

mere sentence, which referenced the entirety of their summary-judgment evidence 

without a concomitant reference to existent fact issues, the Garzas’ trial-court 

response failed to preserve any error for appeal. More than that, the Garzas again 

fail to challenge all grounds on which the trial court’s judgment rests, including 

their failure to plead or produce any evidence to support imputation of liability for 

exemplary damages to the corporate entity. 

But, again, even were the Court to address the Garzas’ second issue, the 

evidence cited by the Garzas falls woefully short of raising a fact issue as to malice 

or gross negligence. The Garzas cite to a few pages of deposition testimony 

regarding the location of their lot, the general flow of water downhill, and one 
8

deponent’s opinion that it would be unreasonable to have to deal with continuous 

flooding. That’s it. The referenced testimony includes no expert opinion on the 

standard of care or any breach thereof by Melden & Hunt and no evidence of the 

requisite mental state for imposition of exemplary damages. In particular, the 

Garzas cite to no evidence of intent on the part of Melden & Hunt to cause 

substantial harm to the Garzas. Nor do they identify evidence of any knowledge 

on the part of Melden & Hunt of an extreme degree of risk of serious harm to the 

Garzas resulting from its conduct, combined with a conscious indifference to the 

consequences of its actions. Given the Garzas’ clear waiver and their failure to 

demonstrate error nonetheless, the summary judgment should be affirmed.

ARGUMENT AND AUTHORITIES

I. The Trial Court’s Summary Judgment in Favor of Melden & Hunt 

Should Be Affirmed in Its Entirety

Before turning to an in-depth analysis of the Garzas’ appellate challenge to 

the trial court’s summary judgment, Melden & Hunt would focus the Court’s 

attention on the nature of the Garzas’ limited summary-judgment response below 

and limited appellate challenge before this Court. Melden & Hunt argued, through 

two summary-judgment filings, that the Garzas’ claims were barred by the 

applicable statute of limitations because: (1) this Court’s prior opinion determined, 

as a matter of law, that the Garzas’ claims accrued prior to September 1, 2005; and 

(2) the summary-judgment evidence demonstrated that the Garzas’ claims accrued 
9

more than two years prior to date the Garzas filed suit. (CR 68-81) Melden & 

Hunt also argued that the Garzas had no evidence of the elements of its claim 

under the Texas Water Code, no evidence of the elements of any claim for 

exemplary damages, and no pleading or evidence to support imputing liability for 

exemplary damages to Melden & Hunt, Inc. as a corporate entity. (CR 71-72; SCR 

21-30) In response to Melden & Hunt’s summary judgment, the Garzas below 

argued only (and wrongly) that the statute of repose preempted the governing 

limitations period to provide the Garzas with ten years (instead of two) to file suit 

following the accrual of their claims. (CR 108-09) In doing so, the Garzas 

acknowledged that, should the two-year limitations period apply, it would be 

determinative of their claims. (RR 61)

The Garzas do not repeat on appeal their response below. Instead, the 

Garzas mount a very limited challenge to the trial court’s summary-judgment 

ruling. In defining the narrow nature of their challenge, the Garzas concede the 

propriety of the trial court’s summary judgment on all of their claims – negligence, 

negligent misrepresentation, permanent nuisance, DTPA, and the Texas Water 

Code – save any claim for temporary nuisance. 

For the first time on appeal, they assert that the trial court erred in granting 

summary judgment because Melden & Hunt – though it specifically argued for an 

across-the-board limitations bar, specifically mentioned nuisance, and established 
10

as a matter of law the permanent nature of the nuisance – failed to meet its 

summary-judgment burden. Though cast in terms of Melden & Hunt’s burden, the 

core of the Garzas’ point is that the nuisance should be characterized as temporary 

in nature and that nuisance claims based on flooding events in 2007 and 2008 – but 

not earlier – should be remanded.3 Nowhere did they assert any such claim to the 

trial court – conceding and admitting instead the permanent nature of the nuisance 

and the propriety of the trial court’s summary-judgment grant on limitations. 

Secondly, the Garzas assert on appeal that some evidence of malice or gross 

negligence exists so as to justify reversal of the trial court’s summary judgment on 

a supposed claim for exemplary damages. However, they failed to assert the 

existence of any fact issue below – except by general reference to the entirety of 

their summary-judgment evidence; failed to plead any basis for imputing any such 

liability to Melden & Hunt, Inc.; failed to argue the existence of any fact issue 

regarding any imputation theory; and failed to challenge that basis for the trial 

court’s summary judgment on appeal.

As the Court can see, the Garzas have failed to present anything to this Court 

for review. They have failed to challenge independent grounds supporting 

summary judgment on all of their claims. Likewise, they failed to raise below the 

 

3

See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex. 2004) (“[A] nuisance 

should be deemed temporary only if it is so irregular or intermittent over the period leading up to 

filing and trial that future injury cannot be estimated with reasonable certainty. Conversely, a 

nuisance should be deemed permanent if it is sufficiently constant or regular (no matter how long 

between occurrences) that future impact can be reasonably evaluated.”).
11

only challenge now made to the summary judgment on limitations ground –

instead, admitting themselves out of court. The Court has no choice but to affirm. 

In the interest of being thorough, Melden & Hunt nevertheless will demonstrate 

below why the summary judgment must be affirmed even assuming that the Court 

were to overlook the Garzas’ multiple, repeated, and dooming waivers. But the 

result of the record, the briefing, and the law are clear. The Garzas have waived 

review, and the summary judgment should be affirmed in its entirety.

II. The Garzas Have Failed to Demonstrate Error in the Trial 

Court’s Summary Judgment Grounded in Limitations

A. The Garzas Have Failed to Attack All Bases for the Trial Court’s 

Summary Judgment – Most Notably, the Preclusive Effect of This 

Court’s Prior Opinion on Accrual – and the Summary Judgment 

in Melden & Hunt’s Favor Must Therefore Be Affirmed

To reiterate, Melden & Hunt sought summary judgment on the grounds that 

all of the Garzas’ claims were barred by the applicable statute of limitations 

because: (1) this Court’s prior opinion determined, as a matter of law, that the 

Garzas’ claims accrued prior to September 1, 2005 (more than two years prior to 

the filing of suit, the applicable limitations period); and (2) that, beyond the 

Court’s prior ruling, the Garzas’ claims accrued more than two years prior to date 

the Garzas’ filed suit as a matter of law. (CR 66, 68-71) Below, the Garzas 

responded only by arguing that the statute of repose preempted the governing 

limitations provisions, purportedly increasing the governing limitations period 
12

from two to ten years. (CR 108-09) They do not repeat this argument on appeal. 

Rather, the Garzas now assert, for the first time, that the nuisance in question was 

temporary, rather than permanent, warranting application of different accrual 

principles and a subsequent accrual date. 

Nowhere have the Garzas attacked, as a basis for the trial court’s summary 

judgment, this Court’s prior determination under the law-of-the-case doctrine. 

They made no argument below regarding the Court’s prior legal ruling, they assert 

no issue on appeal, they nowhere brief a response to the earlier binding opinion, 

and they nowhere ask the Court to reconsider that earlier decision or provide any 

basis for doing so.4 In fact, no reference or citation is made in the Garzas’ brief to 

the Court’s prior opinion; and they did nothing more than attach the Court’s prior 

opinion as an exhibit to their summary-judgment response below. (CR 251-56)

As such, the Garzas have waived any challenge to that ground; and this 

Court must affirm the trial court’s judgment. See, e.g., Unifund CCR Partners v. 

Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (“[A] party who fails to expressly 

present to the trial court any written response in opposition to a motion for 

summary judgment waives the right to raise any arguments or issues post-

 

4

Even assuming that the Garzas had asserted a general Malooly issue challenging the summary 

judgment as a whole (they did not), they nevertheless would still be required to brief all aspects 

of their challenge on appeal, which the Garzas did not do. See, e.g., Pena v. State Farm Lloyds, 

980 S.W.2d 949, 959 (Tex. App. – Corpus Christi 1998, no pet.) (Malooly allows the nonmovant to argue broadly on appeal under a general point of error, but does not relieve an 

appellant of the burden to challenge the grounds for the summary judgment and to present 

argument for his case on appeal).
13

judgment”), citing TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the 

trial court by written motion, answer or other response shall not be considered on 

appeal as grounds for reversal”); Pisharodi v. Six, No. 13-07-00019-CV, 2008 WL 

3521330, *1 (Tex. App. – Corpus Christi, Aug. 7, 2008, no pet.) (mem. op.)

(“Because Pisharodi failed to attack all possible grounds for the order granting 

summary judgment, his two issues are waived. Accordingly, we affirm.”); see also 

Baldwin v. Northrop Grumman Information Technology, No. 03-09-00654-CV, 

2011 WL 182880, **1-2 (Tex. App. – Austin, Jan. 21, 2011, no pet.) (mem. op.)

(affirming trial court’s summary judgment where appellant failed to challenge each 

ground for summary judgment that was advanced in the trial court).

B. Even Assuming the Garzas’ Appeal Encompasses a Challenge to 

the Preclusive Effect of This Court’s Prior Opinion on Accrual, 

the Trial Court’s Judgment Must Still Be Affirmed

Even assuming that the Garzas could and/or did present to this Court any 

attack on the Court’s prior opinion as a basis for the trial court’s summary 

judgment, any such attack would lack merit. Again, Melden & Hunt moved for 

summary judgment based, in part, on the Court’s prior determination that the 

Garzas’ claims accrued well before they filed suit. (CR 66, 68-70) Under the lawof-the-case doctrine, questions of law decided on appeal – such as the accrual of 

limitations – govern the case throughout its subsequent stages. Loram 

Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006); Moreno v. 
14

Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (explaining that accrual for 

limitations purposes is a question of law).

Indeed, by narrowing the legal issues in successive stages of the case’s 

litigation, the doctrine’s purpose is to achieve uniformity of decision, as well as 

judicial economy and efficiency. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 

716 (Tex. 2003). Absent new or additional facts, legal analysis, or argument that 

would change the Court’s earlier disposition, the law-of-the-case doctrine 

precludes the Court from reconsidering previously determined issues. See In re 

Guardianship of Cantu de Villarreal, 330 S.W.3d 11, 21 (Tex. App. – Corpus 

Christi 2010, no pet.). The Court must enforce the doctrine, based on public policy 

aimed at putting an end to litigation. Pitman v. Lightfoot, 937 S.W.2d 496, 513 

(Tex. App. – San Antonio 1996, writ denied).

In its earlier disposition, the Court held as a matter of law that the Garzas’ 

claims accrued prior to September 1, 2005 – more than two years prior to their 

having filed suit on April 22, 2008 (CR 47):

Presuming, for the sake of argument only, that the discovery rule 

applies, then the Garzas’ cause of action accrued when they knew or 

in the exercise of ordinary diligence should have known of Melden & 

Hunt’s alleged negligence and the alleged injury resulting therefrom. . 

. . The undisputed evidence shows that before September 1, 2005, all 

of the following occurred: (1) Melden & Hunt completed its survey, 

supervision, and any grading work for the home; (2) Alberto Garza 

purchased the home from the builder in November 1998; (3) 

according to Alberto Garza’s sworn testimony, in the summer of 1999 

or 2000, the Garzas experienced “ponding” in their backyard that 
15

prompted Alberto to call the builder and to “plead” with the builder 

“for assistance with the ponding;” (4) the Garzas’ former neighbor, 

Rosendo Hinojosa, testified at his deposition that prior to December 

2004, Alberto Garza complained to him about water from the 

backyard coming inside the home and flooding the family room; and 

(5) prior to March 2005, Hinojosa witnessed Alberto building a 

“berm” around the house ‘to prevent another flooding incident.’ 

Melden & Hunt, 2013 WL 3517743, at *2. Again, the Garzas never offered any 

new or additional facts, legal analysis, or argument that would cast doubt on the 

Court’s earlier disposition. As noted above, the Garzas made no reference or 

citation whatsoever to the Court’s prior determination in either their summaryjudgment response or in their appellate brief. (CR 103-11) Rather, at the hearing 

on the motions for summary judgment presented by both Melden & Hunt and CoDefendant Burch Construction, Inc., counsel for the Garzas acknowledged that the 

limitations issue had been “crystallized” by the Court’s prior opinion. (RR 14-16) 

The Court made its accrual determination across the board for all of the 

Garzas’ claims in the context of deciding whether the Court had jurisdiction over 

an interlocutory appeal under section 150.002 of the Texas Civil Practice and 

Remedies Code. That provision applies across the board to “any action . . . for 

damages arising out of the provision of professional services” by a licensed 

architect, professional engineer, professional land surveyor, registered landscape 

architect, or any firm in which such licensed or registered professional practices. 

See TEX. CIV. PRAC. & REM. CODE §§ 150.001, 150.002(a), (b) (West 2011). As a 
16

result, the trial court had no choice but to follow the Court’s earlier ruling and 

grant Melden & Hunt’s summary judgment. See In re K.M.S., 91 S.W.3d 331, 333 

(Tex. 2002) (noting that lower courts cannot “decline to follow” rulings of higher 

courts); see also City of Houston v. Precast Structures, Inc., 60 S.W.3d 331, 338 

(Tex. App. – Houston [14th Dist.] 2001, pet. denied) (“Where a losing party fails 

to avail itself of an appeal in the court of last resort, but allows the case to be 

remanded for further proceedings, the points decided by the court of appeals will 

be regarded as law of the case and will not be re-examined.”).

Moreover, even assuming that the Garzas preserved any such attack on the 

Court’s decision by either raising it below or asserting it in their opening brief, the 

aim of any reconsideration request is puzzling. If any portion of the Garzas’ 

claims accrued on or after September 1, 2005, Melden & Hunt would be entitled to 

mount an interlocutory appellate challenge to the denial of its motion to dismiss 

based on the Garzas’ failure to file a timely certificate of merit as required by 

section 150.002 of the Texas Civil Practice and Remedies Code. Melden & Hunt, 

2013 WL 3517743, *1; TEX. CIV. PRAC. & REM. CODE § 150.002 (West 2011). 

Having succeeded in blocking an appellate challenge to the trial court’s denial of 

Melden & Hunt’s motion to dismiss pursuant to section 150.002 based on an 

accrual of their claims prior to September 1, 2005, it is indeed odd – and barred as 

a matter of law – for the Garzas’ to now argue that any portion of their action 
17

accrued after that date. In any event, the Garzas waived any attack on the Court’s 

prior determination and on its binding nature both in the trial court and on appeal. 

As a result, the trial court’s summary judgment should be affirmed in its entirety.

C. The Garzas Concede That the Trial Court Properly Granted 

Summary Judgment on Virtually All of Their Claims and 

Neglected to Raise Below (and Have Thus Waived) the Only Issue 

in Avoidance They Now Assert on Appeal

1. The Garzas Failed to Assert Any Argument in Response to 

the Summary Judgment That Its Nuisance Claim Should Be 

Governed by Different Accrual Principles

Even if the Court were to ignore its prior opinion as law of the case and 

ignore the Garzas’ failure to raise any challenge to that ground in their summaryjudgment response below or on appeal, the trial court’s summary judgment should 

nevertheless be affirmed. In addition to relying on the Court’s prior opinion, 

Melden & Hunt argued secondarily that the Garzas’ claims accrued as a matter of 

law more than two years prior to the date the Garzas filed suit in 2008. (CR 66, 

68-71) In their only attack on the trial court’s ruling, the Garzas focus solely on 

their nuisance claim and (wrongly) contend that, as a temporary nuisance, it is 

governed by different accrual principles. 

While the Garzas cast their complaint as one that Melden & Hunt failed to 

prove that the alleged nuisance is “permanent,” as opposed to “temporary,” the 

core of the Garzas’ challenge argues for a temporary characterization as a matter of 

law or the alternative existence of unresolved (and unidentified) fact issues. 
18

However, the Garzas misunderstand both the law pertaining to nuisance and the 

burden the Garzas themselves bore to present expressly by written response any 

issue to be considered as grounds for reversal on appeal. See TEX. R. CIV. P.

166a(c). In doing so, they overlook that Melden & Hunt satisfied its summaryjudgment burden by arguing a limitations bar across the board, by pointing to the 

Garzas’ claims of multiple incidents of flooding, by arguing that the Garzas’ claim 

could not be split among alleged harms, and by virtue of the summary-judgment 

evidence – both Melden & Hunt’s and that produced by the Garzas –

demonstrating that any nuisance is permanent as a matter of law. (CR 64-88)

Before turning to a further discussion of these issues, the Court should 

appreciate the critical concessions the Garzas’ make in their opening brief. 

Specifically, the Garzas acknowledge that they asserted several different theories 

of liability against Melden & Hunt – negligence, negligent misrepresentation, 

deceptive trade practices, water code violations, and nuisance – all of which have a 

two-year limitations period. (Appellants’ Brief at 2) However, the Garzas 

expressly refrain from challenging the trial court’s judgment on all claims other 

than nuisance – even though they all have a two-year limitations period and even 

though at least one of the claims involves the same temporary-permanent accrual 

dichotomy as does the Garzas’ nuisance claim. See TEX. CIV. PRAC. & REM. CODE 

§ 16.003(a) (West 2002) (two-year limitations period applies to generally to tort 
19

claims asserting injury to person or property); TEX. CIV. PRAC. & REM. CODE § 

17.565 (West 2011) (two-year limitations period for DTPA); Schneider Nat’l 

Carriers v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (two-year limitations period 

for nuisance); HECI Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998)

(statute of limitations for negligent misrepresentation is two years); JPMorgan 

Chase Bank, N.A. v. Professional Pharmacy II, ___ S.W.3d ___, 2014 WL 

7473779, *10 (Tex. App. – Fort Worth, Dec. 31, 2014, no pet. h.) (two-year 

limitations period for negligence); Graham v. Pirkey, 212 S.W.3d 507, 512-13 

(Tex. App. – Austin 2006, no pet.) (two-year limitations period for Water Code 

violation); see also Graham, 212 S.W.3d at 512 (applying Bates’ analysis of 

accrual of nuisance claims to claims under Texas Water Code). (Appellants’ Brief 

at 3, 6) The Garzas’ limited challenge is telling as a virtual admission that Melden 

& Hunt established its entitlement to summary judgment on limitations as a matter 

of law, regardless of the Court’s earlier disposition.

Not only is the Garzas’ limited point on appeal demonstrative of the 

summary judgment’s strength, but their singular point has been waived because it 

was not raised below. Again, though the Garzas, at times, cast their complaint as 

one attacking the insufficiency of Melden & Hunt’s proof, the Garzas’ real 

complaint is that the nuisance in question should be characterized as temporary and 

as governed by different accrual rules and/or that fact issues exist on frequency, 
20

extent, and duration. See, e.g., First Amended Brief of Appellants at 4 (“Viewing 

the summary judgment evidence in the light most favorable to Appellants, the trial 

court should have determined that the nuisance was temporary, Appellants’ cause 

of action accrued anew with each injury (i.e. on August 2007 and again in July 

2008) and Appellants thus filed their nuisance claim (in April 2008) within the 

two-year limitations period.”).5 

Well-settled summary-judgment law precludes an appellant (absent any 

complaint in the trial court through a timely, written response) from asserting on 

appeal an argument offered to defeat summary judgment – including one urging 

application of different limitations periods or different accrual rules, as well as one 

asserting the existence of fact issues. See Krueger v. Atascosa County, 155 S.W.3d 

614, 618 (Tex. App. – San Antonio 2004, no pet.), citing State Bd. of Ins. v. 

Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986). Particularly with respect 

to limitations principles, the court in Baxter v. Gardere Wynne Sewell LLP, 182 

S.W.3d 460, 465 (Tex. App. – Dallas 2006, pet. denied) made clear that any 

argument for application of different rules must first be preserved in the trial court:

Appellants’ petition did not separate their claim for aiding and 

abetting fraud from their claim for aiding and abetting conspiracy. 

Nor did their response to the motion for summary judgment separate 

these claims, much less argue that the two claims were governed by 

different limitations periods. . . . Issues a nonmovant contends avoid 

 

5 Of course, the trial court could make no such determination because the Garzas never filed their 

own motion for summary judgment.
21

summary judgment that are not expressly presented to the trial court 

by written answer or other written response to the summary judgment 

motion are waived on appeal. . . . We concluded appellants waived 

any argument that the aiding and abetting fraud claim was governed 

by a different limitations period than their other claims.

Similarly, in AGD, L.P. v. Quest Principal Investments, Inc., No. 13-12-00720-CV, 

2014 WL 6602314, *6 n.16 (Tex. App. – Corpus Christi, Nov. 20, 2014, no pet.)

(mem. op.), this Court recognized these same principles in the context of a 

summary-judgment motion based on limitations, explaining:

On appeal, appellants argue that because the contracts to construct the 

Edinburg and Weslaco properties constituted a “continuing contract,” 

appellees failed to establish that July 4, 2006 and May 26, 2007 were 

the dates of completion for the contracts. However, appellants did not 

make this argument in their response to appellees’ motion for 

summary judgment. . . . Therefore, we are unable to reverse on that 

basis.

Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 522 (Tex. App. – Dallas 

2011, pet. denied) (holding that appellants waived argument that different statute 

of limitations period applied by not raising the contention in opposition to the 

movant’s summary-judgment motion); Cornerstones Mun. Utility Dist. v. 

Monsanto Co., 889 S.W.2d 570, 574 (Tex. App. – Houston [14th Dist.] 1994, writ 

denied) (holding that non-movant waived argument that longer, residual limitations 

provision applied, where it did not raise the point in summary-judgment response); 

see also D.R. Horton-Texas, Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 

(Tex. 2009) (“A [summary judgment] non-movant must present its objections to a 
22

summary-judgment motion expressly by written answer or other written response 

to the motion in the trial court or that objection is waived”); TEX. R. CIV. P. 166a(c) 

(“Issues not expressly presented to the trial court by written motion, answer or 

other response shall not be considered on appeal as grounds for reversal [of 

summary judgment].”). 

Just as in Baxter, AGD, and the other authorities cited above, the Garzas 

failed to single out their nuisance claim and failed to argue that any nuisance was 

temporary and governed by different limitations rules. As a result, the Garzas have 

waived any such argument on appeal. Similarly, they failed to identify any fact 

issues precluding summary judgment in Melden & Hunt’s favor. Rather than 

assert a challenge to Melden & Hunt’s limitations argument, the Garzas 

acknowledged the effect of the Court’s prior opinion at the summary-judgment 

hearing – conceding that, assuming the two-year limitations period applied (rather 

than the ten-year repose period as the limitations deadline), their claims could not 

survive. (RR 14-15, 61) The summary judgment should be affirmed.

2. Regardless, Any Existent Nuisance Is Permanent as a Matter of 

Law and Accrued with the First Flooding Event, Which Occurred 

in 2000 at the Latest – Nearly a Decade before the Garzas Filed 

Suit – Even Indulging the Garzas’ Inadequate Briefing

Melden & Hunt argued and proved a limitations bar across the board as to 

all of the Garzas’ causes of action – including nuisance. (CR 68-71, 73) 

Specifically, Melden & Hunt’s motion expressly referenced the Garzas’ nuisance 
23

claim and expressly argued and proved that the claims accrued after the first 

flooding incident, which is the accrual rule applicable to permanent nuisances. 

Bates, 147 S.W.3d at 270. (CR 68-69) Melden & Hunt identified multiple 

flooding events claimed by the Garzas and argued against separate accrual dates 

for each one individually – thus expressly arguing against application of the 

accrual rule for temporary nuisance. Id. (CR 69, 71, 324-26) Finally, Melden & 

Hunt offered evidence establishing that the alleged nuisance was permanent as a 

matter of law, precluding a renewed accrual period after every flooding event. (CR 

69-70, 76-88) The law requires nothing more. See TEX. R. CIV. P. 166a(c) 

(explaining that movant need only state “specific grounds” for summary judgment 

– in this case, limitations – and support its motion with summary-judgment 

evidence establishing its entitlement to judgment). 

Turning to the evidence and the Garzas’ admissions, Mr. Garza testified that 

the property first experienced flooding in 1999 or 2000 – prompting Mr. Garza to 

contact the home builder – with additional flooding events occurring on at least the 

following occasions: at some point prior to December 2004; in August 2007; in 

July 2008; and thereafter. See Melden & Hunt, Inc., 2013 WL 3517743, at *2. 

(CR 69-79, 79-80, 199) The Garzas admitted in their latest petition that “their 

home flooded on several occasions resulting in a total loss in value” and further 
24

admitted in their summary-judgment response that their home was “prone to flood 

from even moderately heavy rainfall.” (CR 96, 104) 

Later, the Garzas expressly pled in their summary-judgment response that 

they suffered “substantial damage and a total loss in value.” See, e.g., Bates, 147 

S.W.3d at 276 (explaining that permanent nuisance entitles one to recover for loss 

in value); De La Pena v. Elzinga, 980 S.W.2d 920, 922 (Tex. App. – Corpus 

Christi 1998, no pet.) (“A judicial admission is a formal waiver of proof usually 

found in pleadings or the stipulations of the parties which relieves the opposing 

party’s burden of proving the admitted fact, and bars the admitting party from 

disputing it.”), citing Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 

S.W.2d 692, 694 (Tex. 1980). (CR 104) 

Additionally, the Garzas’ own summary-judgment evidence confirmed the 

repeated nature of flooding events to their property. See Trousdale v. Henry, 261 

S.W.3d 221, 236-37 (Tex. App. – Houston [14th Dist.] 2008, pets. denied)

(considering non-movant’s as well as movant’s evidence in concluding no fact 

question existed regarding when legal-malpractice causes of action accrued). For 

example, affiant Gerald Duhon testified that “the house is being chronically 

flooded.” (CR 121) Affiant Raymond Helmer stated that “the Garzas have 

experienced repeated severe flooding of their home on numerous occasions.” (CR 

217, 240) Mr. Garza’s own deposition testimony established that water had 
25

flooded his yard and even invaded his home on multiple occasions and that he had 

engaged in repeated efforts to thwart it. (CR 131) He also testified that his home 

experienced flooding not just during hurricanes, but during “regular rains, regular 

thunderstorms. You have to remember that we’ve had flooding issues before 2007 

where it was a regular rain, not a thunderstorm, a rain, and, yet, we would have 

flooding in the back.” (CR 199)

6

While the foregoing is more than sufficient to affirm the trial court’s 

judgment, Co-Defendant Burch Construction, Inc. had its summary-judgment 

motion on limitations heard on April 16, 2014, along with Melden and Hunt’s 

 

6 As a result of the foregoing, not only does the evidence establish the nuisance as permanent, 

but it conclusively demonstrated accrual well before the Garzas filed suit on April 22, 2008, as 

this Court previously and correctly determined. See, e.g., Tennessee Gas Transmission Co. v. 

Fromme, 153 Tex. 352, 354, 269 S.W.2d 336, 338 (1954) (“[R]espondent’s legal rights were 

invaded the moment water from the petitioner’s plant began to flow upon her land.”). The 

Garzas brought forth no challenge to Melden & Hunt’s accrual demonstration and, on appeal, fail 

to assert the existence of any fact issue on accrual – apart from the belated contention that a 

different accrual determination governs their nuisance claim. Again, the Garzas never 

controverted their admissions that their claims could not withstand a two-year limitations period 

and that the nuisance was permanent in nature and never controverted the defendants’ summaryjudgment proof; nor did the Garzas otherwise identify or argue the existence of any fact issue on 

accrual – either in the trial court or on appeal. (CR 103-11)

Though the Garzas have raised no contention that they could bring their claims seriatim if 

deemed a permanent nuisance, any such argument would be barred by the single-action doctrine. 

See, e.g., Zacharie v. U.S. Natural Resources, Inc., 94 S.W.3d 748, 755 (Tex. App. – San 

Antonio 2002, no pet.) (“In general, a plaintiff must bring ‘one indivisible cause of action for all 

damages arising from a defendant’s single breach of a legal duty.’ . . . Keeping this single action 

rule in mind, a cause of action accrues when a wrongful act causes an injury, regardless of when 

the plaintiff learns of that injury or if all resulting damages have yet to occur.”); see also Bates, 

147 S.W.3d at 279 & n.70 (“[O]nce operations begin and interference occurs, limitations runs 

against a nuisance claim just as against any other”), citing Fromme, 269 S.W.2d at 338 (holding 

nuisance claim accrued when flooding began, and was barred by limitations even though greater 

part of damage occurred within two years of suit); Melden & Hunt, 2013 WL 3517743, at *2 

(claim accrues when facts come into existence authorizing claimant to seek judicial remedy, 

“even if all resulting damages have not yet occurred.”).
26

summary-judgment motion. (CR 89-92; 2 SCR ___; RR) Burch offered additional 

evidence that the Garzas experienced flooding, including flooding to their home, in 

and around 2000. See, e.g., Rea v. Coffer, 879 S.W.2d 224, 228 (Tex. App. –

Houston [14th Dist.] 1994, no writ) (looking to co-defendant’s summary-judgment 

evidence negating discovery rule in affirming summary judgment); Desiga v. 

Scheffey, 874 S.W.2d 244, 253 (Tex. App. – Houston [14th Dist.] 1994, no writ)

(holding that when a trial court sets a single hearing for multiple motions for 

summary judgment and all motions are heard together, court may look to all 

summary-judgment proof on file to determine whether movant entitled to summary 

judgment). (2 SCR ___) 

Burch attached additional excerpts from the deposition of Mr. Garza taken 

on March 25, 2010, during which Mr. Garza acknowledged that water invaded his 

home in 2002 at the latest, prompting multiple and repeated efforts by Mr. Garza to 

stop its recurrence. (2 SCR ___) Specifically, Mr. Garza testified that in the 

previous 11 years, rainwater entered his home every year with the exception of the 

first two to three years he lived there. (2 SCR ___) Furthermore, he confirmed 

that he knew about the intrusion – in the master bedroom, in the kitchen, in the 

formal living room – when it first occurred because he could see the wet carpet, 

even as far as under his bed. (2 SCR ___)
27

Burch also filed as summary-judgment evidence material produced by Mr. 

Garza in 2010, which included notated photographs depicting flooding and 

complaints that he had been experienced these issues with his home for 10 years, 

i.e., since around 2000. (2 SCR ___) Finally, Burch produced testimony from Mr. 

Garza’s former neighbor – the same neighbor whose testimony is referenced in the 

Court’s prior opinion – who testified that Mr. Garza complained of flooding to the 

family room area of his home prior to December 2004 and attempted to build a 

berm to stop future flooding at some point prior to March 2005. (2 SCR ___).

Additionally, the Garzas asserted that the flooding resulted from what is 

properly characterized under the law as a permanent source, completed well before 

the property’s first flooding event. Melden & Hunt completed its survey on 

October 3, 1997; and the Garzas purchased the completed home on November 18, 

1998. (CR 76-78, 80) Moreover, the Garzas’ own expert identified the flooding 

issues as arising from the grading and construction of the Chateau Estates 

subdivision, a permanent structure. (CR 220-21) Given the multiple flooding 

events, as well as the permanent nature of the flooding’s alleged source, the only 

proper characterization of any purported nuisance is permanent as a matter of law. 

In analogous circumstances, Texas courts have characterized the alleged 

nuisance to be permanent as a matter of law. See, e.g., City of Amarillo v. Ware, 

120 Tex. 456, 40 S.W.2d 57, 61 (1931) (flooding caused by storm sewer was 
28

properly pleaded as permanent nuisance); Rosenthal v. Taylor, B. & H. Ry. Co., 79 

Tex. 325, 15 S.W. 268, 269 (1891) (nuisance from rainfall flooding was 

permanent); La Tierra de Simmons Familia, Ltd. v. Main Entertainment, LP, No. 

03-10-00503-CV, 2012 WL 753184, **9-10 (Tex. App. – Austin, Mar. 9, 2012, 

pet. denied) (mem. op.) (nuisance claimed as a result of water diversion was 

permanent as a matter of law, where drainage system had operated in a consistent 

manner since it was constructed, there were no improvements or significant 

alterations since it had been constructed, and record showed that significant rainfall 

events were not so rare or infrequent so as to characterize nuisance as temporary 

rather than permanent); Yalamanchili v. Mousa, 316 S.W.3d 33, 37-38 (Tex. App. 

– Houston [14th Dist.] 2010, pet. denied) (nuisance from flooding was permanent 

as a matter of law, where evidence showed that water infiltrated property with 

every rain of any magnitude for many years and where runoff was created by 

permanent structure); Mitchell v. Timmerman, No. 03-08-00320-CV, 2008 WL 

5423268, at *6 (Tex. App. – Austin, Dec. 31, 2008, no pet.) (mem. op.) (flooding 

from every significant rain is permanent nuisance); Pope v. John Kiella Homes, 

No. 07-06-00146-CV, 2008 WL 1903332, at **3-4 (Tex. App. – Amarillo, Apr. 

30, 2008, no pet.) (mem. op.) (flooding following heavy rains resulting from 

construction of Briarcrest subdivision, a permanent structure, is a permanent 

nuisance); City of Princeton v. Abbott, 792 S.W.2d 161, 165 (Tex. App. – Dallas 
29

1990, writ denied) (even though rain occurred at long intervals, there was no 

suggestion that the nuisance or impoundment was likely to be removed by any 

agency and, thus, was permanent); Durden v. City of Grand Prairie, 626 S.W.2d 

345, 348 (Tex. App. – Fort Worth 1981, writ ref’d n.r.e.) (flooding caused by

storm sewer was permanent as a matter of law).

Indeed, the Supreme Court explained in Schneider Nat’l Carriers, Inc. v. 

Bates, 147 S.W.3d 264, 276 (Tex. 2004) that a permanent nuisance is established 

by showing either the plaintiff’s injuries or the defendant’s operations are 

permanent. The Court continued that a permanent source is presumed to result in a 

permanent nuisance unless rebutted by evidence that nuisance activity causes 

injury under circumstances so rare that, even when activity occurs, it remains 

uncertain whether or to what degree activity may ever occur again. Id. Ultimately, 

the Court summarized its holding as follows: “[W]e hold that a nuisance should be 

deemed temporary only if it is so irregular or intermittent over the period leading 

up to filing and trial that future injury cannot be estimated with reasonable 

certainty. Conversely, a nuisance should be deemed permanent if it is sufficiently 

constant or regular (no matter how long between occurrences) that future impact 

can be reasonably evaluated).” Id. The determination is one of law. Id. at 281.7

 

7 Other than a brief and misguided discussion of Bates, the Garzas offer no case law to support 

their argument on appeal. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and 
30

In their brief, the Garzas never quite explain the deficiency in Melden & 

Hunt’s summary-judgment showing, thus waiving review,8and further demonstrate 

a misunderstanding of the Supreme Court’s exposition in Bates. For instance, they 

contend that the Supreme Court held that anytime rain is involved, the nuisance is 

necessarily temporary. They also contend that the determination of whether a 

nuisance is permanent or temporary necessarily gives rise to a fact issue to be 

determined by a jury. However, the Court in Bates held expressly to the contrary, 

and the Garzas facile and selective take on Bates cannot withstand scrutiny.

Again, the Bates Court held that both the determination of the accrual of a 

claim for nuisance, along with the incorporated determination whether a nuisance 

is permanent, is a determination of law. 147 S.W.2d at 281. While the Court 

recognized that, in some instances, there may exist fact issues that require 

resolution before that determination can be made, the Court further explained that, 

“if a nuisance occurs several times in the years leading up to trial and is likely to 

continue, jurors will generally have enough evidence of frequency and duration to 

reasonably evaluate its impact on . . . property values. In such cases, the nuisance 

should be treated as permanent, even if the exact dates, frequency, or extent of 

 

concise argument for the contentions made, with appropriate citations to authorities and to the 

record.”).

8

See Gray v. Woodville Health Care Ctr., 225 S.W.3d 613, 620 (Tex. App. – El Paso 2006, pet. 

denied) (“Appellants also allege that the motions for summary judgment were legally and 

factually insufficient. This issue has not been properly briefed and has been waived.”).
31

future damages remain unknown.” Id. at 280; see also id. (“Absent evidence that 

current experiences are unrepresentative or about to change, such nuisances should 

be considered ‘permanent’ as a matter of law.”).

In other words, evidence of a nuisance like the one alleged here, with several 

flooding events over more than a decade, combined with an admission by the 

claimants that the flooding occurs with virtually any rain, warrants characterization 

as permanent as a matter of law. Compare Sullivan v. Brokers Logistics, Ltd., 357 

S.W.3d 833, 840 (Tex. App. – El Paso 2012, pet. denied) (nuisance from silt 

buildup was temporary where it occurred in response to 100-year or 500-year 

event). Moreover, Bates expressly clarified that “a recurrent nuisance is a 

permanent one, even if it is difficult to predict what the weather will be on any 

particular day.” 147 S.W.3d at 283; see also id. at 276-77 (“[I[f a nuisance 

subjects land along a river to annual flooding, market values would normally 

reflect that expectation . . . , even though many months may intervene between 

floods and in some years there may be none at all”); id. at 281 (“[A] nuisance 

should be deemed permanent if it is sufficiently constant or regular (no matter how 

long between occurrences) that future impact can be reasonably evaluated.”).

Bates concluded by holding that “a permanent nuisance may be established 

by showing that either the plaintiff’s injuries or the defendant’s operations are 

permanent.” 147 S.W.3d at 281. Here, both exist. Nevertheless, Bates added that 
32

the presumption of a connection between the two could be rebutted only by 

evidence that the injury occurs under circumstances “so rare that, even when they 

occur, it remains uncertain whether or to what degree they may ever occur again.” 

Id. The Garzas never offered any such argument or evidence below or to this 

Court. Rather, they conceded, admitted, and offered evidence of just the opposite.

It is, frankly, disingenuous (and legally prohibited) for the Garzas to now 

argue that the nuisance is anything other than permanent, given their pleadings, 

their summary-judgment response, and the summary-judgment evidence –

including Mr. Garza’s own candid testimony. And, again, the Garzas never 

asserted a contrasting characterization of their nuisance claim, different accrual 

principles, or a different accrual date. Similarly, they never argued the existence of 

any fact issue on accrual below, never pointed to any evidence raising such an 

issue in the trial court, and do nothing more than summarily recite the existence of 

fact issues on frequency, extent, and duration for the first time to this Court – once 

again resulting in nothing for the Court to review. 

More than that, the Garzas conceded the propriety of summary-judgment on 

limitations were the trial court to apply a two-year limitations period. Specifically, 

during the hearing on the Defendants’ motions, counsel for the Garzas stated that 

application of a two-year limitations period “could be very determinative of a lot of 

the causes of action in this case. If it’s the 10 year [statute of repose] we’ve got a 
33

case that’s going forward and should be tried.” (RR 61) “[A] party cannot lead a 

trial court into error and then complain about it later on appeal.” Sanchez v. Mica 

Corp., 107 S.W.3d 13, 26 (Tex. App. – San Antonio, 2002, pet. granted; judgmn’t 

vacated in part w.r.m.) (refusing to consider appellate point regarding damages 

where party had conceded insufficiency of the evidence to support full award).

Taking the Garzas’ concession, their pleadings, their other admissions, the 

summary-judgment evidence, and the undisputed evidence of flooding recited in 

the Court’s prior opinion, the several flooding events identified by the Garzas to 

have occurred in the years between construction and suit (and thereafter) requires 

affirmance. Of course, this discussion is entirely academic given the binding 

nature of the Court’s prior opinion, the failure of the Garzas to challenge all bases 

on which the trial court’s judgment rests, and the waiver of their only appellate 

point. Nevertheless, Melden & Hunt demonstrated that the alleged nuisance is 

permanent as a matter of law, as well as accrual well before the Garzas’ filed suit; 

and the trial court correctly granted summary judgment in its favor.

III. The Garzas Have Also Failed to Demonstrate Error in the Trial Court’s 

Summary Judgment on Their Claim for Exemplary Damages 

A. Because the Garzas Have No Claim for Actual Damages, the 

Summary Judgment on Their Claim for Exemplary Damages 

Must Be Affirmed

As the Garzas concede, they expressly accept the trial court’s adverse 

judgment on all underlying theories of liability other than nuisance. See First 
34

Amended Brief of Appellants at 6 (“Appellants assert that the trial court erred in 

dismissing their nuisance claims on limitations grounds. Appellants do not 

challenge the dismissal of their four other causes of action on limitations 

grounds”). And, as shown above, the trial court’s summary judgment on their 

nuisance claim must be affirmed. As a result, the Garzas have no grounds to 

recover actual damages against Melden & Hunt. 

Absent a recovery of actual damages, there can be no recovery of exemplary 

damages; and, indeed, the Garzas have acknowledged that they do not seek any 

such recovery based on any theory other than nuisance. See First Amended Brief 

of Appellants at 6. Given that the nuisance claim is similarly barred, the Garzas 

cannot recover exemplary damages based on any theory. See, e.g., Gomez de 

Hernandez v. Bridgestone/Firestone N. Am. Tire, L.L.C., 204 S.W.3d 473, 477 

(Tex. App. – Corpus Christi 2006, pet. denied) (“Here, appellants sought recovery 

of exemplary damages, predicated on malice, in relation to their strict products 

liability, negligence, and breach of warranty causes of action. Because the trial 

court granted HAA summary judgment on all of appellants’ causes of action, and 

appellants do not challenge the granting of summary judgment on any of those 

grounds, there is no cause of action in relation to which malice may serve as a 

predicate for exemplary damages. Therefore, appellants’ allegation of malice as a 
35

predicate for exemplary damages is no longer viable”). The trial court’s judgment 

must be affirmed in its entirety. 

B. Even Assuming That the Court Would Reverse the Trial Court’s 

Judgment on the Garzas’ Nuisance Claim, Contrary to the 

Court’s Prior Opinion, the Garzas’ Concessions and Admissions, 

Governing Case Law, and the Record Evidence, the Garzas 

Nevertheless Cannot Prevail on Their Claim for Exemplary 

Damages

1. The Garzas Nowhere Pled or Offered Evidence to Impute 

Liability for Exemplary Damages to Melden & Hunt

“A corporation may be liable in punitive damages for gross negligence only 

if the corporation itself commits gross negligence.” THI of Tex. at Lubbock I, LLC 

v. Perea, 329 S.W.2d 548, 581-82 (Tex. App. – Amarillo 2010, pet. denied), citing 

Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). In order to impute 

liability for malice or gross negligence to a corporate entity for the acts of its 

agents, a plaintiff must show that the corporation authorized the tortious act, that 

the corporation recklessly employed an unfit person who committed the act, that 

the corporation ratified or approved the act, or that the employee was employed in 

a managerial capacity or was a vice-principal of the corporation and was acting in 

the scope of his employment. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 

391 (Tex. 1997).

Melden & Hunt moved for summary judgment based both on the Garzas’ 

failure to plead any basis for determining that the corporation itself committed 
36

malice or gross negligence and furthermore moved for a no-evidence summary 

judgment on the various bases for imputing gross negligence or malice to a 

corporate entity. Though the Garzas repled to assert a claim for exemplary 

damages by specifically referencing the standards of malice and gross negligence 

following, they failed to include any pleading for imputing any such liability to the 

corporation. (CR 94-102) As such, the trial court properly granted summary 

judgment in the absence of any pleading to support imputed liability. See, e.g., 

Hyman Farm Serv., Inc. v. Earth Oil & Gas Co., Inc., 920 S.W.2d 452, 458 (Tex. 

App. – Amarillo 1996, no writ) (plaintiff must plead, prove, and obtain findings on 

an imputation theory in order to recover exemplary damages against a corporation 

for the acts of an agent); see also Holt v. Hale, No. 04-14-00113-CV, 2014 WL 

5838937, *2 (Tex. App. – San Antonio, Nov. 12, 2014, no pet.) (mem. op.) (where 

party failed to replead after having been given opportunity to do so, court did not 

err in dismissing suit); Clawson v. Wharton County, 941 S.W.2d 267, 273 (Tex. 

App. – Corpus Christi 1996, writ denied) (failure to object or request additional 

time to amend pleading, on ground that summary judgment is attempt to 

circumvent special exceptions, waves any such alleged error), citing San Jacinto 

River Auth. v. Duke, 783 S.W.2d 209 (Tex. 1990).

Beyond the pleading defect, the Garzas have waived review for yet another 

reason. Below, the Garzas nowhere argued that fact issues exist on any of the 
37

several methods for imputing gross negligence or malice. See TEX. R. CIV. P.

166a(c). (CR 103-11) Moreover, on appeal, they have failed to assert any 

appellate challenge to that ground on which the summary judgment, in part, rests. 

Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (when 

summary judgment does not specify or state grounds, summary judgment will be 

affirmed on appeal if any of the grounds presented in the motion are meritorious); 

Ramirez v. First Liberty Ins. Corp., ___ S.W.3d ___, 2014 WL 6766688, *1 (Tex. 

App. – El Paso, Dec. 1, 2014, no pet. h.) (“If the appellant fails to challenge each 

ground on which summary judgment could have been granted, we must uphold the 

summary judgment on the unchallenged ground.”). As a result, the summary 

judgment must be affirmed as to the Garzas’ claim for exemplary damages.

2. The Garzas Failed to Explain in Their Response, Beyond a 

General Reference to Their Summary-Judgment Evidence, 

the Existence of Any Fact Issues on Their Claim for 

Exemplary Damages and, Again, Present Nothing for 

Review 

In response to Melden & Hunt’s no-evidence motion for summary judgment, 

the Garzas included a listing of 19 exhibits and a general reference to all 19 of 

those exhibits (with a somewhat more specific reference to 11 of those exhibits) as 

supportive of their claim for exemplary damages. Indeed, the entirety of their 

summary-judgment response to the no-evidence motion on their claim for 

exemplary damages was as follows:
38

6.8 Further, M&H argues that there is no evidence to support 

exemplary damage. The Garzas would point to the Exhibits attached 

hereto but particularly to Nos. 3-5 and 10 – 17.

(CR 110) That response was wholly insufficient to raise any fact issue and 

authorize any review by either the trial court or this Court on appeal.

A non-movant must expressly present issues he contends avoid summary 

judgment by written answer to the motion or by other written response; and such 

issues are not expressly presented by mere reference to the summary-judgment 

evidence. Vice v. Kasprzak, 318 S.W.3d 1, 11 n.5 (Tex. App. – Houston [1st Dist.] 

2009, pet. denied), citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 

337, 340-42 (Tex. 1993). So, for example, where a non-movant fails to make any 

argument why summary judgment should not be granted on a claim, including the 

specification of the elements on which fact issues exist, simply referring instead to 

attached evidence, an appellate court cannot reverse. Sandhu v. Pinglia 

Investments of Tex., L.L.C., No. 14-08-00184-CV, 2009 WL 1795032, *6 (Tex. 

App. – Houston [14th Dist.], Jun. 25, 2009, pet. denied) (mem. op.); Mercier v. 

Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 774 (Tex. App. – Corpus 

Christi 2007, no pet.) (“Because Mercier failed to specifically address the elements 

of each cause of action on which he claimed fact issues existed and because he 

failed to expressly present any issues precluding summary judgment in his written 

response, Mercier did not raise any fact issues precluding summary judgment”).
39

Moreover, a general reference to a voluminous record that does not direct 

the trial court and parties to the evidence on which the non-movant relies with 

sufficient specificity falls short of that burden. Rogers v. Ricane Enterprises, Inc., 

772 S.W.2d 76, 81 (Tex. 1989); see also Guevara v. Lackner, 447 S.W.3d 5669

(Tex. App. – Corpus Christi 2014, no pet.) (“Dr. Guevara filed 355 pages of 

exhibits in support of his response to the Lackners’ no-evidence motion for 

summary judgment. Dr. Guevara cited only generally to some exhibits, and we 

will not review those exhibits.”); Murphy v. Reynolds, No. 02-10-00229-CV, 2011 

WL 4502523, *6 (Tex. App. – Fort Worth 2011, no pet.) (mem. op.) (citing Ricane

and noting party’s failure to refer to specific portions of ninety-page appendix 

attached to summary-judgment response). 

Below, the Garzas never set forth how their evidence – or which specific 

portions of it – raised fact issues as to their claim for exemplary damages based on 

either malice or gross negligence. In fact, they don’t even reference whether the 

evidence in question relates to malice, gross negligence, and/or both and never 

identified any specific elements of either on which fact issues purportedly existed. 

As a result, the Garzas have waived this point and, again, present nothing for this 

Court to review. The summary judgment should be affirmed.

 

9

The pinpoint citation to this principle within the Guevara decision is not yet available on 

Westlaw.
40

3. The Governing Standard of Review of Melden & Hunt’s 

No-Evidence Motion on Malice and Gross Negligence

Should Require Clear and Convincing Evidence

Because malice and gross negligence must be proven by clear and 

convincing evidence, courts generally apply a heightened standard of review on 

appeal. See Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004)

(noting that “whenever the standard of proof at trial is elevated, the standard of 

appellate review must likewise be elevated); TEX. CIV. PRAC. & REM. CODE § 

41.003(a)(3) (West 2014) (gross negligence must be proven by clear and 

convincing evidence). As such, appellate courts should review the summaryjudgment evidence in this case to determine whether a fact finder could have 

formed a firm belief or conviction that Melden & Hunt intended to cause harm or 

that its conduct deviated so far from the standard of care so as to create an extreme 

risk and that Melden & Hunt was subjectively aware of, but consciously indifferent 

to, this risk. Columbia Medical Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 

238, 248-49 (Tex. 2008); see also U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 

137 (Tex. 2012) (“In reviewing an award for exemplary damages, we conduct a 

legal sufficiency review under the ‘clear and convincing standard.’ . . . ‘“Clear and 

convincing’ means the measure or degree of proof that will produce in the mind of 

the trier of fact a firm belief or conviction as to the truth of the allegations sought 

to be established.”), quoting TEX. CIV. PRAC. & REM. CODE § 41.001(2) (West 
41

2014). This has been the governing standard for more than a decade. See Garza, 

164 S.W.3d at 632, quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

“A no-evidence summary judgment is essentially a pretrial directed verdict, 

and [courts] apply the same legal sufficiency standard in reviewing a no-evidence 

summary judgment as [they] apply in reviewing a directed verdict.” King Ranch, 

Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). And, the same standard 

used in determining whether a directed verdict would have been proper is the 

standard employed to determine whether a jury finding on a question of fact has 

any support in the evidence. See, e.g., Perez v. Perez, No. 09-05-00024-CV, 2005 

WL 2092807, *1 (Tex. App. – Beaumont, Aug. 31, 2005, no pet.) (mem. op.), 

citing TEX. R. CIV. P. 301; see also In re C.J.F., 134 S.W.3d 343, 350-51 (Tex. 

App. – Amarillo 2003, pet. denied) (“Initially we note that an appeal from the 

denial of a motion for instructed or directed verdict is essentially a challenge to the 

legal sufficiency of the evidence”; court applied clear and convincing standard to 

appeal from denial of motion for directed verdict), citing Fein v. R.P.H., Inc., 68 

S.W.3d 260, 265 (Tex. App. – Houston [14th Dist.] 2002, pet. denied). Given that 

the clear and convincing burden at the trial court level translates to a heightened 

standard of review for questions of legal sufficiency on appeal and given that a noevidence motion for summary judgment is essentially a pretrial complaint of legal 
42

insufficiency, the same heightened standard should apply to the review of Melden 

& Hunt’s no-evidence motion regarding exemplary damages. 

Melden & Hunt candidly acknowledges that some appellate courts have 

relied on the decision in Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 

413, 421 (Tex. 2000) to reject the need for clear and convincing evidence of malice 

or gross negligence at the summary-judgment stage. See, e.g., Hardy v. 

Bennefield, 368 S.W.3d 643, 648-49 (Tex. App. – Tyler 2012, no pet.); Klentzman 

v. Brady, 312 S.W.3d 886, 904 n.18 (Tex. App. – Houston [1st Dist.] 2009, no 

pet.); DR Partners v. Floyd, 228 S.W.3d 493, 497 (Tex. App. – Texarkana 2007, 

pet. denied); Pardo v. Simons, 148 S.W.3d 181, 185-86 (Tex. App. – Waco 2004, 

no pet.); Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App. –

Fort Worth 2001, pet. denied). However, these opinions all rely on Huckabee, 

which was decided in the context of a traditional summary judgment and not the 

subsequent no-evidence standard set forth above – a standard that expressly 

permits review on appeal against an elevated standard. 19 S.W.3d at 421-22. 

Huckabee also predates the Supreme Court’s decision in In re J.F.C., 96 S.W.2d 

256, 264-66 (Tex. 2002), in which the Supreme Court applied a clear-andconvincing standard of review to a sufficiency determination for the first time. 

While the Supreme Court subsequently applied the ordinary standard of 

review in the context of a no-evidence summary judgment in Forbes, Inc. v. 
43

Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003), it failed to recognize 

its holding in In re J.F.C. Similarly, the Forbes Court failed to acknowledge the 

identity between a no-evidence summary-judgment and a motion for directed 

verdict, to which a heightened standard of review on appeal does apply. Id. Since 

then, the Supreme Court has been requested at least twice to reconsider this stance; 

though other rulings obviated the need for the Court to address the issue. Freedom 

Newspapers of Tex. v. Cantu, 168 S.W.3d 847, 859 n.49 (Tex. 2005); New Times, 

Inc. v. Isaacks, 146 S.W.3d 144, 168 (Tex. 2004).

Melden & Hunt recognizes that this Court cannot avoid Supreme Court 

authority; and, thus, it simply preserves its ability to make this argument to the 

Supreme Court in the event necessary. Regardless, as will be demonstrated below, 

whether the evidence is viewed under a heightened appellate standard or under the 

ordinary standard of review, the result is the same. The Garzas failed to produce 

any evidence, much less clear and convincing evidence, to support a claim for 

exemplary damages under either a malice or gross negligence theory.

4. The Garzas Failed to Raise a Fact Issue on Malice or Gross 

Negligence

Assuming the Court were to overlook the Garzas’ clear waiver of any 

challenge to the summary judgment on their claim for exemplary damages as 

outlined above, the evidence they produced was wholly insufficient to establish a 

fact issue as to either malice or gross negligence. As the Garzas acknowledge on 
44

appeal, malice requires proof of a “specific intent by the defendant to cause 

substantial injury or harm to the claimant.” TEX. CIV. PRAC. & REM. CODE § 

41.001(7) (West 2014). Gross negligence requires proof of an “act or omission (A) 

which when viewed objectively from the standpoint of the actor at the time of its 

occurrence involves an extreme degree of risk considering the probability and 

magnitude of the potential harm to others; and (B) of which the actor has actual, 

subjective awareness of the risk involved, but nevertheless proceeds with 

conscious indifference to the rights, safety, or welfare of others.” TEX. CIV. PRAC.

& REM. CODE § 41.001(11) (West 2014). “‘[E]xtreme risk’ is not a remote 

possibility or even a high probability of minor harm, but rather the likelihood of 

the plaintiff’s serious injury.” U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 

(Tex. 2012). The defendant must not only know of that risk, but its acts or 

omissions must demonstrate indifference to the consequences. Id.

As proof of malice and gross negligence, the Garzas refer to four deposition 

excerpts, during which the deponents testified that Melden & Hunt designed the 

drainage system, that Melden & Hunt knew the Garzas’ lot sat lower than any 

other house in the subdivision, that Melden & Hunt knew that water would run 

from west to east (the same slope as the Garzas’ property), and that it would be 

unreasonable for a homeowner to have to deal with continuous flooding. (CR 180, 

182-85, 187-90, 207-08) These excerpts – either individually or taken together –
45

constitute no evidence of malice or gross negligence. Nothing in any of these 

depositions excerpts points to a specific intent on the part of Melden & Hunt to 

cause the Garzas substantial harm. Nothing in any of these deposition excerpts 

points to any likelihood of serious injury, to knowledge on the part of Melden & 

Hunt of any extreme risk of substantial injury, or to any conscious indifference on 

the part of Melden & Hunt to an extreme degree of risk of substantial injury.10

The Garzas were obligated to establish breach of the governing standard of 

care through expert testimony. See, e.g., FFE Transp. Servs., Inc. v. Fulgham, 154 

S.W.3d 84, 91 (Tex. 2004) (expert testimony required where industry standards are 

not within layperson’s knowledge). There is absolutely no discussion in any of 

these deposition excerpts regarding the applicable standard of care or its breach. 

See, e.g., Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App. – Houston 

[1st Dist.] 1993) (plaintiff failed to offer expert testimony that the engineering 

design did not meet professional standards), aff’d as modified, 901 S.W.2d 434 

(Tex. 1995). Three of the deposition excerpts are from Fred Kurth, a Melden & 

Hunt engineer who, while certainly qualified in his field, never testified regarding 

the applicable standard of care nor to its breach.11 

 

10 Here, too, the Garzas have failed to support their contentions with any discussion of relevant 

authority, contrary to the mandate of Texas Rule of Appellate Procedure 38.1(i).

11 Curiously, the Garzas do not cite to the testimony of their own experts to raise a fact issue on 

malice or gross negligence – perhaps because those exhibits (5, 18, and 19) were inadmissible as 

wholly conclusory and incompetent summary-judgment evidence. See HIS Cedars Treatment 
46

The Garzas offered no evidence that the slope of the land and the flow of 

surface water was virtually certain to result in substantial injury or of any flooding 

of the Garzas’ lot or home once built or that Melden & Hunt knew of the 

likelihood or intended that result. Instead, the Garzas’ summary-judgment 

evidence demonstrates that the volume of water directed towards the Garzas’ lot 

resulted from factors that occurred after Melden & Hunt completed its work and 

depended upon how the other lots in the subdivision were graded in connection 

with the construction of homes – precluding satisfaction of any intent element or of 

either the objective or subject prongs of gross negligence. (CR 220-21) 

Specifically, the cited “evidence” fails to make any reference to the expected 

nature of any harm from a prospective point of view – and certainly not to any 

“extreme” risk of “substantial” injury. Columbia Med. Ctr. of Las Colinas, Inc. v. 

Hogue, 271 S.W.3d 238, 248 (Tex. 2008) (“[T]he risk must be examined 

prospectively from the perspective of the actor, not in hindsight”); Smith v. 

 

Ctr. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004); Tesoro Petroleum Corp. v. Nabors Drilling 

USA, Inc., 106 S.W.3d 118, 126 (Tex. App. – Houston [1st Dist.] 2002, pet. denied) (“A 

conclusory statement is one that does not provide the underlying facts to support the 

conclusion”); see also Branton v. Wood, 100 S.W.3d 645, 648 (Tex. App. – Corpus Christi 2003, 

no pet.) (“[A]n objection to the conclusory nature of summary-judgment evidence is an objection 

to the substance of the evidence that may be raised for the first time on appeal.”). For example, 

affiant Gerard Duhon references only his vague and unidentified “observations, measurements, 

and experience” that the Garzas’ home was being flooded due to deficiencies in the development 

drainage. (CR 121) Moreover, he nowhere identified the applicable standard of care or how 

Melden & Hunt breached it. (CR 120-21) Similarly, Raymond Helmer opined that the lots were 

improperly graded, though he admitted that he did nothing to determine whether they were 

properly graded or not and offered no facts in support of that opinion. (CR 212, 218, 220-21) 

Regardless, neither witness offered any evidence of the necessary culpability and mental state 

required for a showing of malice or gross negligence, particularly given their use of hindsight.
47

O’Donnell, 288 S.W.3d 417, 423 (Tex. 2009) (“‘Extreme risk’ is not a remote 

possibility of injury or even a high probability of minor harm, but rather the 

likelihood of serious injury to the plaintiff”). Indeed, only if the defendant’s act or 

omission is “unjustifiable” and likely to cause serious harm can it be grossly 

negligent, much less malicious. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 

22 (Tex. 1994). The Garzas failed to point to any such evidence of a known or 

intended extreme risk of substantial injury and never identified just what act or 

omission on the part of Melden & Hunt is at issue, other than generally referring to 

the work Melden & Hunt was hired to do in connection with the subdivision.

12

At its core, the Garzas’ evidence offers nothing more than the truism that 

water flows downhill, combined with the location of the Garzas’ lot downhill. 

That uninformative contention cannot be the basis for an award of exemplary 

damages without further proof of culpability and the requisite mental state. 

Without specific evidence demonstrating what, if anything, Melden & Hunt 

supposedly did or did not do to cause the Garzas injury and without evidence that 

such act or omission was intended to cause substantial injury to the Garzas or that 

Melden & Hunt knew such substantial injury was virtually certain to occur but 

 

12 Though the Garzas assert in their brief that this evidence demonstrates that Melden & Hunt 

designed the drainage plan for the subdivision such that water flowed toward the Garzas’ lot 

rather than to the street and into the municipal draining system, the cited excerpts say nothing of 

the kind. There is no evidence that Melden & Hunt intentionally designed the drainage plan to 

cause substantial flooding to the Garzas’ property nor that Melden & Hunt was aware of an 

extreme degree of risk that substantial injury would occur and yet acted with conscious 

indifference.
48

acted with conscious indifference nevertheless, the Garzas simply cannot prevail 

on a claim for exemplary damages. The summary judgment must be affirmed.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee Melden & Hunt, Inc. 

respectfully requests that this Court affirm the trial court’s judgment and that the 

Court grant Appellee such other and further relief to which it is entitled.

Respectfully submitted,

GONZALEZ, CHISCANO, ANGULO &

KASSON, P.C.

Henry B. Gonzalez III

State Bar No. 00794952

Taylor Williams

State Bar No. 24056536

613 N.W. Loop 410, Suite 800

San Antonio, Texas 78216

(210) 569-8500 

(210) 569-8490 (telecopier)

hbg@gcaklaw.com

twilliams@gcaklaw.com

THE LAW OFFICE OF JACQUELINE M.

STROH, P.C.

Jacqueline M. Stroh

State Bar No. 00791747

10101 Reunion Place, Suite 600

San Antonio, Texas 78216

(210) 477-7416

(210) 477-7466 (telecopier)

jackie@strohappellate.com

By: /s/ Jacqueline M. Stroh

Jacqueline M. Stroh

ATTORNEYS FOR APPELLEE, MELDEN & HUNT, INC.

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned 

certifies that this brief complies with the type-volume limitations and that, 

exclusive of the exempted portions, the brief contains 12,458 words (counting all 
49

appropriate footnotes) and that the brief has been prepared in proportionallyspaced typeface using Times New Roman Font 14 in body text and Font 12 in 

footnotes.

/s/ Jacqueline M. Stroh

Jacqueline M. Stroh 

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Brief of Appellee was on this 12th

day of January, 2015, served by in accordance with the Texas Rules of Appellate 

Procedure on the following counsel of record:

Alberto T. Garcia, III

Adrian R. Martinez

Garcia & Martinez, L.L.P.

6900 N. 10th Street, Suite 2

McAllen, Texas 78504

albert@garmtzlaw.com

adrian@garmtzlaw.com

Counsel for Appellants

/s/ Jacqueline M. Stroh

Jacqueline M. Stroh
Page 2 of 4

Page I

Westlaw"

Not Reported in S.V/.3d, 2013 WL 3517743 (Tex.App,-Corpus Christi)

(Cite as: 2013 WL 3517743 (Tex.App.-Corpus Christi))

Only the Vy'estlaw citation is currently available.

SEE TX R RAP RULE 47.zFOPt DESIGNATION

AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Corpus Christi-Edinburg.

MELDEN & HUNT, INC., Appellant,

Alberto R. GARZA and Leticia l. Garza, individually and as next friends of Alexandra L Garza and

Kassandra R. Garza, Appellees.

No. l3-11-O0594{V

July I1,2013.

On appeal from the 92nd District Court of Hidalgo

County, Texas. Ricardo P. Rodriguez, Jr., District

Judge.

Henry B. Gonzalez, III, Gonzales, Chiscano, Angulo & Kasson, P.C., Sharon E. Callaway, Crofts &

Callaway, San Antonio, TX, for Appellant.

Alberto T. Garcia, III, Adrian Rafael Martinez,

Garcia &li4afünez, Edinburg, TX, for Appellees.

Before Chief Justice VALDEZ, and Justices

BENAVIDES, and PERKES.

MEMORANDUM OPINION

Memorandum Opinion by Justice PERKES, *l Melden & Hunt, Inc., a surveying and engineering firm, appeals from a trial court order

denying its motion to dismiss pursuant to section

150.002 of the Texas Civil Practice and Remedies

Code. See TEX. CIV. PRAC. & REM.CODE ANN,

$ 150.002 (West 2003). By three issues, Melden &

Hunt argues: (l) the trial court abused its discretion

in denying the motion to dismiss because the affiant

did not practice in the same area of practice as

Melden & Hunt and the certificate of merit was untimely flrled; (2) statements made in Melden &

Hunt's summary judgment motion on statutes of repose and limitations were not judicial admissions

with respect to the date the Garzas' causes of action

accrued; and (3) the Garzas were not entitled to a

good-cause extension under $ 150.002 of the Texas

Civil Practice and Remedies Code. ÌWe dismiss this

interlocutory appeal for lack ofjurisdiction.

I. BACKGROUND

Alberto and Leticia Garza, individually and as

next friends of Alexandra l. Garza and Kassandra

R. Garza ("the Garzas"), filed suit against Melden

& Hunt and Gary Burch dlbla/ Burch Construction,

Inc. on April 22,2008, urging that Melden & Hunt

had negligently prepared the survey of their home

in the Chateau Estates subdivision and negligently

fumished and finished the floor elevation of their

home, causing the home to flood several times in

2007, The Garzas claimed a total loss in value to

their home, mold issues, and associated health

problems. On December 4,2008, the Garzas filed a

certificate of merit that had been prepared by Gerard H. Duhon, who stated that he practiced in the

same engineering field as Melden & Hunt. Duhon

opined that Melden & Hunt failed to direct surface

drainage from surrounding properties away from

the Garzas' home and failed to provide for drainage

of water from the home.

On June 1,2010, Melden & Hunt filed a motion to dismiss, stating that the certificate of merit

did not comply with section 150.002 of the Texas

Civil Practice and Remedies Code. See id. $

150.002. Melden & Hunt later supplemented its

motion to dismiss, urging that the certificate of

merit was also untimely filed.

Melden & Hunt had previously filed a traditional and no-evidence motion for summary judgment on grounds that the claims were barred by

statutes of repose and limitations because at least

ten years had elapsed since the completion of the

survey work on Chateau Estates. The trial court

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Not Reported in S.W.3d,2013 WL 3517743 (Tex.App.-Corpus Christi)

(Cite as: 2013 WL 3517743 (Tex.App.-Corpus Christi))

Page 3 of4

Page2

peal apply "only to a cause of action that accrues on

or after the effective date of this Act [September l,

20051." 4ct of May 18, 2005,79th Leg., R.S., $$ 4,

5 ch. 208, 2005 Tex. Gen. Laws 369,370; see also

Hughes, 2010 WL 862861, at *1. Therefore, we

have appellate jurisdiction in this case only if the

Garzas' cause of action accrued on or after September 1,2005.

III. ACCRUAL OF CAUSE OF ACTION

The determination of when a cause of action

accnres is a legal question. See Moreno v. Sterling

Drug, \nc.,787 S.W.2d 348, 351 (Tex.1990). Generally, a cause of action accrues and the statute of

limitations begins to run when facts come into existence that authorize a claimant to seek a judicial

remedy. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 221 (Tex.2003); see also

Hughes,2010 WL 862861, at *2 (citing Apex Towing Co. v. Tolin,4l S.W.3d 118, 120 (Tex.200l)).

This principle applies even if all resulting damages

have not yet occurred. S.V. v. R.V.,933 S.W.2d 1, 4

(Tex.1996); see also Hughes,2010 VYL 862861, aÍ

*2. In cases involving allegedly faulty professional

advice, the claimant suffers legal injury when the

advice is taken. Murphy v. Campbell, 964 S.W.2d

265,270 (Tex.l997).

Presuming, for the sake of argument only, that

the discovery rule applies, then the Garzas'cause of

action accrued when they knew or in the exercise of

ordinary diligenÕe should have known of Melden &

Hunt's alleged negligence and the alleged injury

resulting therefrom. See id. at 271. The undisputed

evidence shows that before September l, 2005, all

of the following occurred: (l) Melden & Hunt completed its survey, supervision, and any grading

work for the home; (2) Albefio Garza purchased the

home from the builder in November 1998; (3) according to Alberto Garza's sworn testimony, in the

summer of 1999 or 2000, the Garzas experienced

"ponding" in their backyard that prompted Alberto

to call the builder and to "plead" with the builder

"for assistance with the ponding;" (4) the Garzas'

former neighbor, Rosendo Hinojosa, testified at his

denied the motion for summary judgment, which is

not before us in this appeal. The trial court also

held a hearing on the motion to dismiss and denied

it. This appeal ensued.

II. APPELLATE JURISDICTION

Melden & Hunt seeks to appeal from an interlocutory order; however, interlocutory orders are

not appealable unless explicitly made so by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53

(Tex.l998); see qlso Hughes v. Bay Areq

Montessori House, Inc., No. 14-{9-{041O-CV,

2010 V/L 862861, at *l (Tex.App.-Houston [4th

Dist.l March 11, 2010, no pet.) (mem.op.). Appellate courts are obligated to review sua sponte issues

affecting their own jurisdiction. See M.O. Dentql

Lab v. Rape, 139 S.W.3d 671, 673 (Tex.2004); see

also Garcia v. State Farm Lloyds, 287 S.W.3d 809,

812 (Tex.App.-Corpus Christi 2009, pet. denied).

When construing a statute that establishes appellate

jurisdiction, this court cannot expand its jurisdiction beyond that conferred by the legislature.

Jani-King of Memphis, Inc. v. Yqtes, 965 S.W,2d

665, 668 (Tex.App.-Houston [4th Dist.] 1998, no

pet.); see also Hughes,2010 WL 862861,at*1.

*2 Chapter 150 of the Texas Civil Practice and

Remedies Code is the only statute that might

provide Melden & Hunt with an interlocutory appeal in this case. However, the original version of

this statute did not provide for an interlocutory appeal from a trial court's denial of a motion to dismiss for failure to comply with Chapter 150, See

Act of lune 2, 2003, 78th Leg., R.S., ch. 204, $

20.01,2003 Tex. Gen. Laws 847, 896-97 (amended

2005,2009); see also Hughes,2010 V/L 862861, at

*1. The 2009 amendments to Chapter 150 apply

"only to an action or arbìtration f,rled or commenced on or after the effective date of this Act

[September l, 20091." Act of ll4ay 29, 2009, 8lst

Leg., R.S., ch. 789, $$ 3, 4, 2009 Tex. Sess. Law

Serv., ch. 789 (S.8.1207); see also Hughes, 2010

WL 862861, at *1. The action in this case was filed

before September 1, 2009. The 2005 amendments

to Chapter 150 that provide for an interlocutory ap-

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Not Reported in S.W.3d, 2013 WL 3517743 (Tex.App.-Corpus Christi)

(Cite as:2013 WL 3517743 (Tex.App.-Corpus Christi))

deposition that prior to December 2004, Alberto

Garza complained to him about water from the

backyard coming inside the home and flooding the

family room; and (5) prior to March 2005, Hinojosa

witnessed Alberto building a "berm" around his

house 'to prevent another flooding incident.' Therefore, we conclude that the Garzas cause of action

accrued before September l, 2005. See Hughes,

2010 WL 862867, at*2.

IV. CONCLUSION

*3 Even if the discovery rule applies, the Garzas' cause of action accrued before September l,

2005. Because the cause of action accrued before

September 1,2005, the version of Chapter 150 effective before this date applies to this case. See Act

of May 18, 2005, 79th Leg., R.S., $$ 4, 5, ch. 208,

2005 Tex. Gen. Laws 369,370. That version does

not provide for an interlocutory appeal from the

denial of a motion to dismiss under Chapter 150.

See Act of 2003, 78th Leg. R.S., ch, 204, S 20.01,

2003 Tex. Gen. Laws 896, 897 (amended 2005,

2009); see qlso Hughes, 2010 WL 862861, at *2.

Accordingly, we lack appellate jurisdiction, and we

dismiss this appeal.

Tex.App.-Corpus Christi,2O 13.

Melden & Hunt, lnc. v. Garza

Not Reported in S.W.3d, 2013 WL 3517743

(Tex.App.-Corpus Christi)

END OF DOCUMENT

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TEXAS RULE OF CIVIL PROCEDURE 166a

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or 

cross-claim or to obtain a declaratory judgment may, at any time after the adverse 

party has appeared or answered, move with or without supporting affidavits for a 

summary judgment in his favor upon all or any part thereof. A summary 

judgment, interlocutory in character, may be rendered on the issue of liability alone 

although there is a genuine issue as to amount of damages.

(b) For Defending Party. A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought may, at any time, move with 

or without supporting affidavits for a summary judgment in his favor as to all or 

any part thereof.

(c) Motion and Proceedings Thereon. The motion for summary judgment shall 

state the specific grounds therefor. Except 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. No oral 

testimony shall be received at the hearing. The judgment sought shall be rendered 

forthwith if (i) the deposition transcripts, interrogatory answers, and other 

discovery responses referenced or set forth in the motion or response, and (ii) the 

pleadings, admissions, affidavits, stipulations of the parties, and authenticated or 

certified public records, if any, on file at the time of the hearing, or filed thereafter 

and before judgment with permission of the court, show that, except as to the 

amount of damages, there is no genuine issue as to any material fact and the 

moving party is entitled to judgment as a matter of law on the issues expressly set 

out in the motion or in an answer or any other response. Issues not expressly 

presented to the trial court by written motion, answer or other response shall not be 

considered on appeal as grounds for reversal. A summary judgment may be based 

on uncontroverted testimonial evidence of an interested witness, or of an expert 

witness as to subject matter concerning which the trier of fact must be guided 

solely by the opinion testimony of experts, if the evidence is clear, positive and 

direct, otherwise credible and free from contradictions and inconsistencies, and 

could have been readily controverted.

(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.

(e) Case not Fully Adjudicated on Motion. If summary judgment is not 

rendered upon the whole case or for all the relief asked and a trial is necessary, the 

judge may at the hearing examine the pleadings and the evidence on file, 

interrogate counsel, ascertain what material fact issues exist and make an order 

specifying the facts that are established as a matter of law, and directing such 

further proceedings in the action as are just.

(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits 

shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent 

to testify to the matters stated therein. Sworn or certified copies of all papers or 

parts thereof referred to in an affidavit shall be attached thereto or served 

therewith. The court may permit affidavits to be supplemented or opposed by 

depositions or by further affidavits. Defects in the form of affidavits or 

attachments will not be grounds for reversal unless specifically pointed out by 

objection by an opposing party with opportunity, but refusal, to amend.

(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a 

party opposing the motion that he cannot for reasons stated present by affidavit 

facts essential to justify his opposition, the court may refuse the application for 

judgment or may order a continuance to permit affidavits to be obtained or 

depositions to be taken or discovery to be had or may make such other order as is 

just.

(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the 

court at any time that any of the affidavits presented pursuant to this rule are 

presented in bad faith or solely for the purpose of delay, the court shall forthwith 

order the party employing them to pay to the other party the amount of the 

reasonable expenses which the filing of the affidavits caused him to incur, 

including reasonable attorney’s fees, and any offending party or attorney may be 

adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without 

presenting summary judgment evidence may move for summary judgment on the 

ground that there is no evidence of one or more essential elements of a claim or 

defense on which an adverse party would have the burden of proof at trial. The 

motion must state the elements as to which there is no evidence. The court must 

grant the motion unless the respondent produces summary judgment evidence 

raising a genuine issue of material fact.