Affirmed and Memorandum Opinion filed October 11 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00400

- CV

SELENA MCDADE , Appellant

V.
FOUNTAINS AT TIDWELL , LTD.; HETTIG MANAG EMENT CORP; AND INVESTORS MANAGE MENT GROUP, LLC , Appellee s

On Appeal f

r om the 165th District Court Harris County, Texas Trial Court Cause No. 2017

- 35361

MEMORANDUM OPINION
Appell ant Selena McDade filed suit against appellees, Fountains at Tidwell, Ltd., Hetti g Management Corp., and Investors Management Group, LLC
, alleg i n g th a t her apartment had dangerous amounts of mold, which was making h er sick

. Appellees event ually filed a Combined Traditional and No

- Evidence Motion for Summary Judgment, which the tr ial court granted. Concluding that the trial court did not err w he n i t granted appellees ’ summary judgment motion, we aff irm.2 B A CKGROUN D

M cDade signed a lease agreement with appellees for an apartment i n the Fountains at Tidwell complex. According to McDade
, she began experiencing respi ratory problems soon after m oving into her ap a rtment. McDade reported her
h ea lth issues to app ellees

. Bel i e v ing appe llees had failed to address her issues,
McDade filed suit alleging appellees were negligen t because they rented her a
mold

- infested apartment. A ppe llees soon fil ed a trad i t ional motion f or summary judgment. While McDade filed a response to appellees ’ motion for summary jud gment, she subsequently non

- suited her claims before the trial court ruled o n appellees ’ motion

. T he tria l c ourt later rei nstated McDade ’ s l awsuit. Th e trial
court also issued a new docket contro l order which set the discovery and dispositive motion deadline as October 21, 2019. The case was set for trial on November 25, 2019, but the case was not reach ed d uring t hat trial setting

. On January 24, 2020, McDade served supplementa l discover y responses. McDade included a copy of her mo ld expert ’ s report in this supplemental discovery response. The report was prepared by Thomas Dyde k, Ph.D., D. A.S.T ., P.E. , of Dydek Toxi cology Co nsul ting. Dydek explained t hat he is a b oard

certified toxic ologist and licensed profess ional engineer “ speciali zing in the areas of environmental toxicology and environmental engineering. ” Dydek ’ s re port

con clu sion provided:
The following is based on my ed ucation, training, and e x perience in the field of toxicology and my review of the documents referenced above. My conclusion next stated is made with a reasonable degre e of scientific cer tainty: It i s my opinion that M s. McDade ’s eosinophilic pneum onia and the health problems tha t followe d were not caused by mold exposure in the Fountains at Tidwell Apartments. This co n clus ion is based on the followi ng facts:3

· Mold levels in Ms. McDade ’s apartment we re no t excessive and in test we re no gr eater than mold levels outside.

· M e d ical t ests showed Ms. McDade did not have a fungal infection nor did her medical tests indicate she was exp osed to Aspergil l us molds. I t is th us unlikel y that her eosi nophilic pne umoni a was caused by any mo ld exposure.

· Ms. McD ade ’s continuing medical problem s are most likely caused by her on

- going pneumonia and by the side effects from th e steroid medications she has been taking to treat th at disease

. Soon th ereafter, McDade ’ s attorney withdrew. McDade continued her lawsuit pro

se.
At this point in tim e , ap p e llees filed a motion asking for leave to file a

mo tion for summary judgment

. The trial court granted the m otion and set a January 15, 2021 dead line for the filing of dispositive motions

. Appellees filed
their Combined Traditi onal and No

- Evidence Motion f or Summary Judgment ( “ Combined Motion ” ) on January 13, 2021

. The tri al cou rt conducted an oral hearing on the Combined Mo t ion and subsequ ent ly granted th e Combined Motion
on all of McDade ’ s claims

. This appeal fo llow ed.

A NALYSIS

I. Sta ndard of review and appl icable law We review the trial court’s grant of summary judgment de novo. Se e , e.g. , Valence Operating C o . v. Dorsett , 164 S.W. 3d 656, 661 (Tex. 2005). W e consider
all of the summary judgment evidence in the light most favorable to the

nonm ovant , crediting evidence favorable to the nonmovant if a reasonable
factfinder could and d i sregard ing contrary evidenc e unless a reasona ble f actfinde r could not. Se e Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex

. 20 06). When a party move s for summary j udgment on both traditional and no

- evidence grounds, we ordinarily address the no

- evi d ence grounds first. See Fo r d Motor Co.4

v. Ri dgway , 135 S. W.3d 598, 600 (T ex. 2004). If the trial court grants summary judgment wit hout specifying the gro unds, we affir m the judgment if any of the grounds presented are meritorious. Dow Chem. Co. v. Fran c is , 46 S.W.3d 237, 242 (Tex

. 2001) (p er cu riam). And, if an appellant doe s not challenge every possible ground for summary judg ment , we will uphold the su mmary judgment on the unchallenged ground. Durham v. Accardi , 587 S.W.3d 179, 183 (Tex. App.

— Houston [14th Dist.] 2019, no pet. )

. In a no

- ev idence motion for summary judgment, the movant represents that
there is no evidence of o ne o r more essential elements of the clai m s for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The b urden
th en shifts t o t he nonmova nt to present evidence raising a genuine issue of material fact as to the elements speci fied in the motion. Tamez , 206 S.W.3d at 582. Evidence raises a genuine issue of material f act if reasonable and fair

- minded jur ors c ould dif

fer in thei r c onclusions in light of all of the summary judgment
evidence. See Goodyear Tire & Rubber Co. v. Mayes , 23 6 S.W.3d 754, 755 (Tex. 2007) (per curiam). A no

- evidence summary judgment will be sustained when: (a) there is a complete ab s ence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evide nce offered to prove a vital fact; (c) the evidence offered to prove a vital fa ct is no more than a mere scintilla; or (d) the e vi d ence establishes conc l usively the opposite of a vital
fact. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 7 51 (Tex. 2003) (ci ting
Merrell Dow Pharms. v. Havner , 95 3 S.W.2d 706, 711 (Tex. 1997)). To prevail
on a traditiona l m otion for summary judgment, a movant must prove enti t lement to judgment as a matter of law on the issues pled and set out in the motion for summary judgment

. T ex. R. Civ. P. 166a(c); Masterson v . Dioce se of Nw. Texas , 422 S.W.3d 594, 607 (Tex. 2013)

.5

II. Appellees ’ Combined Motion was not premature.
McDad e argues in her f

irst is sue on appeal that appellees ’ Combi ned Motion was premature because, in her view , it was filed before the end of the d i scovery period found in a docket control order issued by the trial court. She further ar gues that the Combined M o tion was premature , unlawful, and unfair, because

“ discovery stops when a motion for summary j udgment is filed, ” so she “ was unable to depose [her] two treating doctors. ” W e disagree with both contentions

.
D iscovery does not stop when a party fil e s a motion for su mmary judgment. Indeed, the summary judgment rule provides a mechanism to de lay the heari ng on
a summary judgment motion when a pa r ty needs additional time for dis covery. See Tex. R. Civ. P. 1 66a(g), Tenneco Inc. v. Enter. Prods. Co. , 9 2 5 S .W.2d 6 40, 647 (Tex. 1996) ( “ When a p arty contends that it has not had adequate opportunity
for di scovery before a summary judgment hearing, it m u st file either an affidavit explaining the need for further discovery or a verified m ot ion for continuance. ” ) ; Mul ler v. Stewart Title Guaranty Co., 525 S.W.3d 859, 867, n.7 (Tex. App.

— Houston [14th Dist.] 2017, no pet.) ( stating in a s ummary judgment cas e , that showing a motion for continuance was filed with the court clerk does not constitute

pro of that the moti o n was brought to the trial cou r t ’ s attention or presented to the trial court with a request fo r a ruling)

. McDade did not file an affidavit or v erified
motion fo r continuance, thus she failed to preser ve any argument she might have
had that she needed ti m e for a dditional discovery

. A ppellees ’ Combined Motion was also not premature because it was

s upposedly filed before the end of the trial court ’ s discovery deadline. The tim i ng for a defendant to file a traditional summary judgment motion is not tied to a disc overy period. Instead, the R ules of Civil Procedure , unless mo di fied by the

t rial court, allo w a defendant to seek a traditio nal summary j u dgment at any time.6

See Tex. R. Civ. P. 1 66a( b ) ; Lindley v. Johnson , 936 S.W.2d 53, 55 (Tex. App.

— Tyler 1996, writ denied) (op. on reh ’ g) ( “ [A] trial court is empowered to establish pretrial schedules to govern the course of litigation. ” )

. A defendant m u st wa it until
af ter “ an adequate time for discovery ” has passed before fi ling a no

- evidence
motion. Tex. R. Civ. P. 16 6 a (i). In the pr esent appe al
, the case had been pending for years, t he trial court ’ s discovery and dispositive motions deadline had pas s ed
, and th e ca se had not been r eached du ring its initial trial setting

. At this point,
McDad e served supplemental resp o nses to discovery, which included the report prepared by her expert witness, Thomas Dydek. Believing the Dydek report
contained adm iss i ons which defeated McDade ’ s claims, appellees asked the trial

cou rt fo r permission to file th eir C ombined M otion, which the trial court granted.
Because the trial cou rt gran ted appellees pe rmissio n to f ile their C ombined M otion
, we conclude it was not fi l ed prematurely
, nor in an unlawful or unfair manner. We
overrule McDade ’ s firs t issue

. III. McDade did n ot preserve her second issue for appel late review.

McDade argues in her second issue that the tri al court abused its discretion
when it cons idered he r own expert ’ s repo rt when it gr anted app ellees ’ Combined
Motion

. I n McDade ’ s v iew , the use of the report w as unlawful because it was an
unsworn tox icological report. Appell ees respond that McDade failed to preserve this issue for appellate review becaus e she failed to object in the tria l court and obtain a ruling

. The Supreme Cour t o f Texas has addressed t hi s very issue. In Mansions in the Forest, L.P. v. Montgomery County
, the court determined that an objection asserting that a purported affidavit lac k ed a jurat and was thus unsworn, was a defect of form and required an objection an d a ruling in the trial c ourt to
prese rve error for appellate review. 365 S.W.3d 314, 317

– 1 8 (Tex. 2012).
Because Mc Dade did not lodge any objecti on to the Dydek re port i n the trial court,7

we conclude she did not preserve this argument for appellate rev iew. Tex. R. App.
P. 3 3. 1(a).

II I

. The trial court did not err whe n it granted appellees ’ n o - evidence motion for summary judgment because McDade ’ s own summary judgment evid e nce conclusively establishe d that appellee s did not breach a duty owed to McDad e.
McDade asserted a neg l ig ence c laim against appelle es. Specifically, she alleged appellee s breached a duty they owed to her by leasing her a “ mo ld infested apartment

. ” The ele ments of a negligence claim are (1) the existence of a duty, (2)
br each of that duty, and (3) d amages proximately caused by the breach. Western
Inv s ., Inc. v. Urena , 162 S.W.3d 547, 550 ( Tex. 200 5). A pp ellees argued i n the

no

- evidence part of their C o mbined Motion that McDade had no evidence they breached a duty owed to her

. McDade f

il ed a response to appellees ’ Combined M otion which included
several exhibits

. Exhibit A was a 2017 email from Joe Ecrette and Amanda
Ecrette , licensed mold as sessment c onsultants/ technicians. In this email the
Ecr ettes notified McDade th at “ the lab results indicate tha t the air in your home was at overall acceptable lev els , however, there were still slightly elevated levels of several speci es detected. ” McDade a lso at t ached Exhibit B

- 2, an excerpt fro m th e Dydek report quoted at len gth above , which notified McDade that the mold levels in her apartment “ were not excessive and in one test were no greater than
mold levels outside

. ” We conclude that McDade ’ s own summary j u dgme nt evidence conclusi vely proved the opposite o f a vital fact, i.e. that appellees breached a duty owed to her by leasing her a mold

- infested apartment. See King Ranch, Inc. , 118 S.W.3d at 7 51 . We therefore ho ld that the trial court did not err
when i t granted appellees ’ Com bine d Motion. We overrule M cDade ’ s third issue.8 C ONCLUSION

Hav ing overruled McDade ’ s issues on appeal, we aff irm the trial court’s final summary judgment.

/s/ Jerry Zimmerer Jus ti ce

Panel consists o f Ju stices Jewell, Bourliot
, and Zimmerer

.