Lynette Starr v. A. J. Struss & Company

ACCEPTED
01-14-00702-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/14/2015 8:58:54 AM
CHRISTOPHER PRINE
CLERK

01-14-0702-CV

IN THE FIRST COURT OF APPEALS FOR TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
Lynette Starr, 1/14/2015 8:58:54 AM
Appellant, CHRISTOPHER A. PRINE
Clerk

V.

A.J. Struss & Co.
Appellee.

ON APPEAL FROM
149 TH DISTRICT COURT
BRAZORIA COUNTY, TEXAS
CAUSE NO. 57875

BRIEF OF APPELLEE

ORAL ARGUMENT REQUESTED

Wade R. Quinn
TBA No. 16433600
Lance Olinde, Jr.
TBA No. 15254215
Ramey, Chandler, Quinn & Zito, P.C.
750 Bering Drive, Suite 600
Houston, Texas 77057
713-266-0074
Fax: 713-266-1064
wquinn@ramey-chandler.com
lolinde tramey-chandler.com
Attorneys for Appellee,
A. J. Struss Company LLC
 IDENTITY OF PARTIES AND COUNSEL:

APPELLANT:
Lynette Starr

Savannah Robinson
1822 Main
Danbury, TX 77534
Trial and Appellate counsel for Appellant

APPELLEE:
A. J. Struss Company, LLC

Wade R. Quinn
Lance Olinde
Ramey Chandler, Quinn & Zito, PC
750 Bering Dr., Suite 600
Houston, TX 77057
Trial and Appellate counsel for Appellee

ii
 TABLE OF CONTENTS

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

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

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

STATEMENT OF THE NATURE OF THE CASE ............................................ viii

STATEMENT REGARDING THE RECORD ...................................................... ix

ISSUES ON APPEAL ............................................................................................

STATEMENT OF FACTS ...................................................................................... 1

I. PROCEDURAL HISTORY ..................................................................... 1

A. PLAINTIFF FILED HER LAWSUIT ................................................ 1

B. THE RAY STARR AFFIDAVIT ....................................................... 2

C. PLAINTIFF FILED LAST PETITION .............................................. 2

II. SUMMARY JUDGMENT PROCEEDINGS .......................................... 3

A. THE MOTION FOR SUMMARY JUDGMENT ON THE
STANDING ISSUE ............................................................................ 3

B. THE NO EVIDENCE MOTION FOR SUMMARY JUDGMENT .... 4

C. JUDGE HOLDER GRANTED SUMMARY JUDGMENT ON ALL
OF PLAINTIFF'S CLAIMS ............................................................... 4

SUMMARY OF ARGUMENT ............................................................................... 4
ARGUMENT ........................................................................................................... 5

STANDARD OF REVIEW ..................................................................................... 5

A. THE STANDING ISSUE. ................................................................................ 6

ISSUE I: Did Plaintiff lack standing to pursue claims for damage to her parents'
home when she did not own it? .......................................................... 6

B. NO EVIDENCE GROUNDS .......................................................................... 10

ISSUE II. Did the trial court properly grant the no-evidence motion for summary
judgment as to her claims for personal injury damages? .................. 10

CONCLUSION AND PRAYER ........................................................................... 15

CERTIFICATE OF SERVICE .............................................................................. 16

CERTIFICATION ................................................................................................. 17

iv
INDEX OF AUTHORITIES

Cases
th
Bell v. Moores, 832 S.W.2d 749, 754 (Tex. App.-Houston [14 Dist] 1992, writ
denied) ........................................................................................................................... 7

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 559 (Tex. 2000) ............................. 6

Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) ................................... 13

Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 201) ........................................................... 6

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995) ............. 12

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996) .................. 6

City of Houston v. Guthrie, 332 S.W.3d 578, 588 (Tex. App.-Houston [1 Dist.]
2009, pet denied) ........................................................................................................... 8

Exxon Corp. v. Emerald Oil & Gas, Co., L. C., 331 S.W.3d 414, 424 (Tex. 2010) . 7

Exxon Pipeline Co. v. Zwahr, 8 S.W.3d 623, 628 (Tex. 2002) ................................ 12

Exxon v. Fluff, 94 S.W.3d 22, 26-28 (Tex. App.-Tyler 2002, pet. den'd.) ............... 7

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998) ...... 12

Gorelick v. State of Texas, 572 F. Supp. 301, 306 (E.D. Tex. 1983) ........................ 7

Hancock v. Variyan, 400 S.W.3d 59, 68 (Tex. 2013) ............................................... 14

Harris County Appraisal Dist. v. Primrose Houston Housing, L.P., 238 S.W.3d
782, 787 (Tex. App.-Houston [1 s ' Dist.] 2007, no pet.) ........................................... 9

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) ...................................... 13

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) ............................... 11
Martin v. Clinical Pathology Labs, Inc., 343 S.W.3d 885, 888 (Tex. App.-Dallas
2011, pet denied) ........................................................................................................... 7

Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex. App.-Beaumont 2006, pet.
denied) ......................................................................................................................... 12

Parkway Co. v. Woodruff 901 S.W.2d 434, 444 (Tex. 1995) .................................. 14

Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106 (Tex. App.-Dallas 2009, pet
denied) ......................................................................................................................... 10

Plunkett, 285 S.W.3d at 117-118 ................................................................................. 10

Plunkett, 285 S.W.3d at 119 ......................................................................................... 11

Plunkett, 285 S.W.3d at 120 ......................................................................................... 11

Plunkett. 285 S.W.3d at 121 ......................................................................................... 11

Praytor v. Ford Motor Co., 97 S.W.3d 237, 244 (Tex. App.-Houston [14th Dist ]
2002, no pet.) .............................................................................................................. 12

Rayon v. Energy Specialties, Inc., 121S.W.3d 7,20 (Tex. App.-Fort Worth 2002,
no pet.) ......................................................................................................................... 11

Rosenboom Machine & Tool, Inc. v. Machala, 995 S.W.2d 817 S.W.2d 817 (Tex.
App.-Houston [1 st Dist.] 1999, review denied) ...................................................... 14

Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)...14

Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex. App.-Eastland 2001, pet. den'd)...7

Stuart v. Bayless, 964 S.W2d 920, 921 (Tex. 1998) .................................................. 14

Tex. Ass 'n of Bus. V. Tex. Arr. Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) ...... 6

Thomas v. Barton Lodge II, Ltd., 174 F3d 636 (5 111 Cir. 1999) ................................. 14

Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) ........................... 13

vi
Vann v. Bow /c Sewerage Co., Inc., 90 S.W.2d 561, 562 (Tex. 1936) ....................... 6

Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) ................................. 12

STATUTES

Tex, Prop. Code §.5.021 .................................................................................................. 8

vii
 STATEMENT OF THE NATURE OF THE CASE

Nature of the Case: Plaintiff contended that her house was damaged and she
suffered personal injury damages when an air conditioner
was negligently installed on November 16, 2011. The
alleged negligent installation caused extensive water
damage that destroyed the home with an infestation of
mold. Plaintiff asserted claims under negligence, the
Texas Deceptive Trade Practices Act and fraud.

Trial Court: 149' District Court of Brazoria County, Hon. Terri
Holder Presiding.

Proceedings Below: Defendant filed a series of motions for summary
judgment, challenging all of Plaintiffs claims on various
grounds, including standing, limitations and no-evidence
grounds. CR 150-158; CR 159-166; CR 210-216; CR
235-244; CR 291-293. The trial court disposed of all
Plaintiffs claims based on the motions for summary
judgment on the grounds that Plaintiff lacked standing
and that there was no evidence to support Plaintiffs
personal injury damage claims. Based on the summary
judgment rulings, the trial court rendered a final, take-
nothing judgment against Plaintiff on all claims. Tab A.
This appeal followed.

viii
 STATEMENT REGARDING THE RECORD

Citations to the clerk's records will be to the page of the single volume. CR

Citations to items included in the appendix to the Brief of Appellee will be to tab
number: Tab

ix
 V.
ISSUES ON APPEAL

A. The Standing Issue

Issue I. Did Plaintiff lack standing to pursue claims for damage to her parents'
home when she did not own it?

B. No Evidence Grounds

Issue II. Did the trial court properly grant the no-evidence motion for summary
judgment as to her claims for personal injury damages?
 01-14-0702-CV

IN THE FIRST COURT OF APPEALS FOR TEXAS

Lynette Starr,
Appellant,

V.

A.J. Struss & Co.
Appellee.

BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS:

Appellee, A. J. Struss Company, LLC ("AJS"), files its Brief of Appellee in

support of the final summary judgment rendered by the court below:

STATEMENT OF FACTS

I. Procedural History.

A. Plaintiff Filed Her Lawsuit.

On October 10, 2012, Plaintiff Lynette Starr, as the only party, filed her

Original Petition. CR 7. In it, she alleged that she contracted with AJS to install an

HVAC system in "her home." CR 8. Plaintiff alleged the HVAC system was

negligently installed in her attic causing a major ceiling leak. CR 8-9. There was

resulting mold infestation. CR 8.
 Plaintiff sought damages of loss home equity, loss of use of the home, costs

of repair to the house, cost of mold remediation, severe physical pain and mental

anguish, as well as reasonable and necessary medical services. CR 9-10.

B. The Ray Starr Affidavit.

In her response to Defendant's Motion for Summary Judgment based on lack

of standing, Plaintiff attached an affidavit from Ray Stan. CR 170-171. The

affidavit was executed on June 9, 2014, by Mr. Starr, the day before the response

was filed. CR 171. In paragraph 5 of the affidavit, he recited that he gave the house

to Lynette Stan in 2005. CR 170. No deed was made. Id. The affidavit also stated

that he executed a Durable Power of Attorney in favor of Plaintiff in January 2014.

AJS filed an objection to the Durable Power of Attorney (CR 254-255) which was

granted by the trial court. (CR 297-298).

C. Plaintiff Filed Last Petition.

On February 28, 2014, Plaintiff filed her Third Amended Original Petition.

CR 105. Once again, there is no other party and there is no mention that she was

assigned causes of action or that she represented her parents. She alleged

negligence, fraud and DTPA violations. CR 105-110. Her damage claim was for

the following in the past and future: (1) physical pain and mental anguish, (2) lost

home equity, (3) loss of use of the home, (4) reasonable and necessary medical

expenses, (5) cost of repair, and (6) cost of mold remediation. CR 110-111. There

2
was no mention that any personal property of Lynette Stan was damaged and she

did not make a claim for same.

II. Summary Judgment Proceedings.

A. The Motion for Summary Judgment on the Standing Issue.

After conducting discovery, AJS filed a motion for summary judgment that

Plaintiff lacked standing to pursue a claim for alleged damage to a home that she

did not own. Indeed, Plaintiff effectively admitted this point:

Q. Who owns the -- and when I say "the house" can we have an
understanding that I'm referring to 25015 County Road 46? In the
course of this deposition when I refer to "the house" or "the home,"
can we have an agreement that we're talking about 25015 County
Road 46?
A. Yes, sir.
Q. Who owns the house?
A. My parents.
Q. What are their names?
A. Ray Starr, Sharron Starr.
Q. Do they still live at the house?
A. Not in the home.
Q. They staying with someone?
A. Now they have a camper.
Q. That's located on the property?
A. Yes, sir.

CR 160 (Starr Depo.) Ray Stan and Shannon Stan have never been parties to this

suit. There was no evidence that Plaintiff complied with the statute of frauds by

presenting a writing executed at the time she filed suit establishing that Plaintiff

owned the property.

3
 B. The No Evidence Motion for Summary Judgment.

In this case, Plaintiff alleged that she developed infections, allergies, skin

conditions of various sorts, along with occasional respiratory issues due to

exposure to toxic mold. For example, she claimed that she "had non-stop issues

with [her] skin" and had "developed more allergies or [sic] reactions." CR 151.

She also complained that the mold infection "ended up getting into [her] teeth and

jaws...." Id. Defendant filed a no evidence motion for summary judgment arguing

that there was no evidence that established a causal connection between alleged

exposure to mold and Plaintiff's injuries and damages. Indeed, Plaintiff was unable

to produce any medical evidence that established alleged exposure to toxic mold

caused any of the alleged health issues.

C. Judge Holder Granted Summary Judgment on All of Plaintiff's
Claims.

On July 7, 2014, there was a hearing before Judge Holder on all pending

motions for summary judgment and objections to summary judgment evidence. CR

297-298. The Court granted Defendant's motion for summary judgment relating to

the standing issue and the no evidence motion for summary judgment concerning

Plaintiffs personal injury claims because of an absence of expert testimony. Id.

The Court concluded that the Court's rulings served as a "Final Judgment because

they disposed of all of Plaintiff's claims." Id.

4
 SUMMARY OF ARGUMENT

Texas law provides that standing is a prerequisite to maintaining a suit.

Under Texas law, a party has standing to bring suit if (1) it has suffered a distinct

injury, and (2) there exists a real controversy that will be determined by judicial

determination sought. Plaintiff did not own the property when the incident

occurred or when she filed suit. To have standing to sue for property damage,

Plaintiff must show that she owned the property at the time of the alleged injury.

Because a trial court determines jurisdiction at the time suit is filed, Plaintiff

cannot establish jurisdiction in June 2014 as a result of an affidavit stating that

Plaintiffs father intended to give her the property.

Plaintiff produced no medical records or testimony that established that she

developed bone infections, respiratory infections, skin infections or any other

malady due to alleged exposure to toxic mold. Texas law clearly requires a

Plaintiff, in an exposure case, to prove the levels of exposure that are dangerous to

humans generally, and must prove the actual level of exposure of Plaintiff to the

toxic mold. Plaintiff has not even come close to meeting the threshold

requirements.

ARGUMENT

A. Standard of Review

5
 An appellate court may review and affirm the standing of summary

judgment on any ground the movant presented to the trial court in its motion for

summary judgment, regardless of whether the trial court identified the ground

relied on to grant the summary judgment. Cincinnati Life Ins. Co. v. Cates, 927

S. W.2d 623, 625-26 (Tex. 1996). Thus, if any ground for summary judgment

presented to the trial court has merit, this Court should affirm the trial Court's final

judgment on that basis.

A. THE STANDING ISSUE

ISSUE I: Did Plaintiff Lack Standing to Pursue Claims for Damage to her
Parents' Home When She Did Not Own It?

Standing is a constitutional prerequisite to maintaining suit. Tex. Ass'n of

Bus. V. Tex. Arr. Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The absence of

standing may be raised by a motion for summary judgment. Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 559 (Tex. 2000). Under Texas law, a party has standing to

bring a suit if (1) it has suffered a distinct injury, and (2) there exists a real

controversy that will be determined by the judicial determination sought. Brown v.

Todd, 53 S.W.3d 297, 305 (Tex. 2001).

In Texas, to have standing to sue for property damage, a Plaintiff must show

that he owned the property at the time of the alleged injury or, if he did not own the

property at that time, that he was expressly assigned the causes of action for

property damage. Vann v. Bowie Sewerage Co., Inc., 90 S.VV.2d 561, 562 (Tex.

6
 1936); Exxon v. Pluff, 94 S.W.3d 22, 26-28 (Tex. App.-Tyler 2002, pet. den'd.)

Texas case law consistently holds that the property owner at the time the damage

occurs has the right of action for all the damages. Exxon Corp. v. Emerald Oil &

Gas, Co., L.C., 331 S.W.3d 414, 424 (Tex. 2010); Senn v. Texaco, Inc., 55 S.W.3d

222, 225 (Tex. App.-Eastland 2001, pet. den'd) (explaining that the right to sue for

both permanent and temporary injures to land belongs to the person owning the

land when the injury commences, and does not "run with the land.")

This rule makes sense for a number of reasons. For example, a purchaser of

"injured" property is presumed to have paid a price that reflects the land's

diminished utility. Gorelick v. State of Texas, 572 F. Supp. 301, 306 (E.D. Tex.

1983). Allowing a subsequent purchaser to recover damages from the injury would

provide it a windfall. Id. Similarly, standing must exist at the time a Plaintiff files

suit and must continue to exist between the parties at every stage of the legal

proceedings, including the appeal; if the Plaintiff lacks standing at the time suit is

filed, the case must be dismissed, even if the Plaintiff later acquires an interest to

support standing. Martin v. Clinical Pathology Labs, Inc., 343 S.W.3d 885, 888

(Tex. App.-Dallas 2011, pet denied); Bell v. Moores, 832 S.W.2d 749, 754 (Tex.

App.-Houston [14' Dist] 1992, writ denied) ("A trial court determined its

jurisdiction at the time a suit is field. At that time, the court either has jurisdiction

or it does not. Jurisdiction cannot be acquired while the suit is pending.")

7
 Based on Ray Starr's June 9, 2014, affidavit, Plaintiff contends that she was

orally given the house and property by her parents in 2005. CR 170. However,

there is no written document reflecting transfer of ownership of the house and

property to Plaintiff The statute of frauds mandates that a conveyance of "an estate

of inheritance, a freehold or an estate for more than one year, in land and

tenements, must be in writing and must be subscribed and delivered by the

conveyor or by the conveyor's agent authorized in writing." Tex. Prop. Code

§5.021.

Plaintiff's apparent claim that she had "equitable title" at the time she filed

the lawsuit confounds the concept of "equitable title." Plaintiff uses the phrase

"equitable title" as if it must apply to her situation. As noted in the case cited by

Plaintiff/Appellant, City of Houston v. Guthrie, 332 S.W.3d 578, 588 (Tex. App.-

Houston [1 Dist.] 2009, pet denied), "equitable title" is an "enforceable right to

have legal title transferred to holder of equity." Guthrie, 332 S.W.3d at 588. Starr

has not demonstrated that she had an "enforceable right" at the time she filed her

lawsuit to have legal title transferred to her. Starr concedes on page 4 of her brief

that "equitable title" is a right "to have legal title to real estate transferred to the

owner of the right upon the performance of specified conditions," citing Guthrie,

332 S.W.3d at 558 (emphasis added).

8
 On the other hand, Starr failed to identify/ the specific condition to be

performed that is the predicate for transference of a legal right to real estate. In

short, under Texas law, "an entity holds equitable title when it possesses the

present right to have legal title." Harris County Appraisal Dist. v. Primrose
[]St
Houston Housing, L.P., 238 S.W.3d 782, 787 (Tex. App.-Houston Dist.] 2007,

no pet.) Simply put, sometime in 2005, Ray Starr told Lynette Starr he would give

her the house and property (according to his June 9, 2014, affidavit). There was no

enforceable right or condition to be performed by Lynette Starr.

Starr incorrectly argued that she had right to bring the claims for her parents,

(acknowledging that she did not own them), because she had the Durable Power of

Attorney signed by her father. Because the trial court sustained AJS' objection to

the Durable Power of Attorney, this argument is baseless. CR 297; TAB A. Starr

did not appeal the portion of the trial court's order sustaining the objection to the

"Durable Power of Attorney." Therefore, she did not have any rights under the

Durable Power of Attorney.

Starr claims that she has standing to sue for damage to her personal property.

However, in her Third Amended Original petition, she did not claim damages to

any personal property allegedly due to mold, Further, even if she had made the

allegation, there was no evidence of damage to personal property presented to the

trial court.

9
 B. NO EVIDENCE GROUNDS

ISSUE II: Did The Trial Court Properly Grant the No Evidence Motion for
Summary Judgment as to Her Claims for Personal Injury
Damages?

In arguing that the trial court erred in granting Defendant's no evidence

motion for summary judgment, the Appellant mystifyingly claimed that "[t]here is

no case law that allergies to common molds is necessarily a "toxic tort" subject to

the enhanced medical expert requirement,' and then cites Plunkett v. Conn. Gen.

Life Ins. Co., 285 S.W.3d 106 (Tex. App.-Dallas 2009, pet denied). The Appellant

then quotes a sentence that references "property damage."' Appellant ignored the

Plunkett opinion's extensive analysis of medical evidence presented by the

plaintiffs in response to a no evidence motion for summary judgment in a toxic tort

mold case.

As a result, contrary to Starr's claim, Plunkett provides a clear road map and

instruction on this issue. In that case, residents of an apartment complex alleged

damages arising from toxic mold contamination. They brought suit against the

complex owner as well as entities involved in the development, construction and

management of the complex. Unlike this case, the residents actually had an

internist/toxicologist who provided opinions purportedly establishing their alleged

personal injuries. Plunkett, 285 S.W.3d at 117-118. Nonetheless, the defendants

I
Appellant's Brief, p. 6.
=

10
moved for summary judgment because of lack of evidence of damage and

causation which the trial court granted. The plaintiffs expert, Dr. Rao, had

reviewed information regarding mold exposure and tests administered to some of

the plaintiffs. Id. However, the expert did not examine any of the plaintiffs

personally.

The Plaintiffs expert in Plunkett, acknowledged that with regard to residents

he had not seen, he was unable to opine with a reasonable degree of medical

probability that their health complaints were in fact caused by mold exposure at the

complex. Plunkett, 285 S.W.3d at 119. However, Dr. Rao also testified that he did

not believe it was medically necessary for him to examine the individual residents.

He provided an affidavit that the court determined did nothing more than "provide

evidence that the type of mold found at the apartment complex is generally capable

of causing health problems, but is no evidence of cause in fact of any specific

residents' health complaints, and is conclusory." Plunkett. 285 S.W.3d at 121.

The Plunkett court stated that "expert" opinions must be supported by facts

in evidence not "conjecture". Plunkett, 285 S.W.3d at 120, quoting Marathon

Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). In deciding summary

judgment motions, a trial court should not consider expert opinion based on

assumptions of unproven facts. Rayon v. Energy Specialties, Inc., 121S.W.3d 7, 20

(Tex. App.-Fort Worth 2002, no pet.). Moreover, conclusory expert opinions are
(Tex. App.-Fort Worth 2002, no pet.). Moreover, conclusory expert opinions are

insufficient to defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d

464, 466 (Tex. 1997). In the instant matter, even if the Plaintiff had an expert

witness providing evidence establishing causation, the witness' testimony must be

relevant and based upon a reliable foundation. Exxon Pipeline Co. v. Zwahr, 8

S. W.3d 623, 628 (Tex. 2002).

In a toxic tort case, the plaintiff bears the burden of proving both "general"

and "specific" causation. Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex.

App.-Beaumont 2006, pet. denied). To that end, with regard to a plaintiffs injury, a

plaintiff must prove that it was caused by exposure to a particular substance which

was capable of causing a particular injury or condition and that the substance in

fact caused the plaintiff's injury. Praytor v. Ford Motor Co., 97 S.W.3d 237, 244

(Tex. App.-Houston [14th Dist.] 2002, no pet.). Further, to demonstrate medical

causation, the plaintiff must exclude or rule out other potential causes of his

alleged symptoms and medical illnesses. Burroughs Wellcome Co. v. Ctye, 907

S. W.2d 497, 499-500 (Tex. 1995). "If there are other plausible causes of the injury

or condition that could be negated, the [claimant] must offer evidence excluding

those causes with a reasonable certainty." Gammill v. Jack Williams Chevrolet,

Inc., 972 S.W.2d 713, 727 (Tex. 1998).

12
 Producing or proximate cause is an element of all of the Plaintiffs claims.

Cause-in-fact is common to both proximate and producing cause, including the

requirement that the Defendant's conduct be a substantial factor in bringing about

the injuries in question. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006);

Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Plaintiffs

medical causation evidence is not only legally insufficient, it is non-existent.

Moreover, the legal insufficiency present in this case is factually insurmountable.

There is no evidence that demonstrates exposure to mold was a cause in fact of her

alleged symptoms and medical problems. See Borg-Warner Corp. v. Flores, 232

S. W.3d 765 (Tex. 2007). At a minimum, the Plaintiff must present reliable

testimony satisfying Tex. R. Evid. 702 establishing that she was exposed to a

particular substance, in sufficient quantity, that was capable of producing her

injuries and conditions. The Texas Supreme Court has held that a person's

exposure to "some" respirable asbestos fibers is not sufficient to show that a

product containing asbestos was a sufficient factor in causing asbestosis. Borg-

Warner Corp. v. Flores, 232 S.W.3d 765, 772-73 (Tex. 2007).

The affidavit of Lynette Stan lacks any evidence of mental anguish. To

recover for mental anguish, Stan must show by direct evidence "the nature, or

severity of ...anguish, thus establishing a substantial disruption in [her] daily

routine" or show by other evidence "a high degree of mental pain and distress that

13
is more than mere worry, anxiety, vexation, embarrassment or anger." Saenz v.

Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Parkway

Co. v. Woodruff 901 S.W.2d 434, 444 (Tex. 1995). In addition, there must be

evidence to justify an award of mental anguish. See Hancock v. Variyan, 400

S. W.3d 59, 68 (Tex. 2013). Starr failed to present evidence of mental anguish, that

is of a "high degree of mental pain and distress." More to the point, there is no

evidence that alleged exposure to toxic mold caused any physical malady and

concomitant mental anguish.

Starr failed to plead recovery for damages to her personal property. A

petition must set out sufficiently specific facts so that an opposing attorney of

reasonable competence can ascertain from the pleadings the remedies and damages

sought by the Plaintiff Rosenboom Machine & Tool, Inc. v. Machala, 995 S.W.2d

817 S.W.2d 817 (Tex. App.-Houston [l s ' Dist.] 1999, review denied). Under Texas

law, damages must be alleged with specificity. See Thomas v. Barton Lodge II,

Ltd., 174 F3d 636 (5' Cir. 1999). Starr did not plead sufficient facts, or any, that

she was seeking damages for personal property damages. Failure to plead such

damages precludes their recovery because AJS did not have notice that the Plaintiff

would suffer such damages. See Stuart v. Bayless, 964 S.W2d 920, 921 (Tex.

1998). Moreover, there was no evidence of damage to personal property nor

complaints of personal property damaged by AJS conduct.

14
 In sum, the trial court correctly determined that there was no evidence to

support Stan's claim for personal injury claims based on exposure to mold.

Appellee AJS respectfully requests the affirmation of the Order of the trial court.

CONCLUSION

Based on the foregoing, AJS requests that this Court of Appeals affirm in all

respects the order of the trial court finding that Appellant Starr take nothing from

AJS.

Respectfully submitted,

/s/ Wade R. Quinn
Wade R. Quinn
TBA No. 16433600
Lance Olinde, Jr.
TBA No. 15254215
Ramey, Chandler, Quinn & Zito, P.C.
750 Bering Drive, Suite 600
Houston, Texas 77057
713-266-0074 — Phone
713-266-1064 — Fax
Wquinngramey-chandler.com
Lolinderamey-chandler.com

15
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was
served upon the parties listed below by facsimile, certified mail, return receipt
requested, first class U.S. mail, electron ail by the clerk of the court, and/or by
h
messenger on the / day of J,yrutow— , 2014.

Wale • Guinn
Lance Olinde, Jr.
Savannah Robinson
Law Office of Savannah Robinson
1822 Main
Danbury, Texas 77534

16
 CERTIFICATION

STATE OF TEXAS §

COUNTY OF HARRIS §

Before me, the undersigned authority, personally appeared LANCE

OLINDE, JR., a credible person known unto me who, after being duly sworn by

me, did swear and state that he is over twenty one (21) years of age, is of sound

mind, has never been convicted of a crime of moral turpitude, that he is one of the

attorneys of record for A.J. Struss Company LLC, Appellee in this matter, that as

such, he has personal knowledge of the underlying litigation, that he has reviewed

the above and foregoing document, and that all the factual statements are within

his personal knowledge and are true and correct. Furthermore, all documents

contained in the Appendix filed by A.J. Struss Company LLC are true and correct

copies of the originals.

Pursuant to Tex. R. App. P. 9.4, this response was generated using Microsoft

Word with Times New Roman 14 point font and contains 4571 words.

1 (.1 , .1:-/(
/+ CE OLINDE, JR.

SIGNED and SWORN BEFORE ME, the undersigned authority, on this the

day of January, 2015.

Notary Public\.

17
EXHIBIT "A"
 ri Heceivea tor Hecoro
jjQ 7/24/2014 8:48:53 AM
Rhon rchak. District Clerk
i q_ 'County,
Ba Texas
70046
Ilyrandice Haseloff, Deputy
AUG 01
CAUSE NO. 70046
97T4fas

Lynette Starr oly AT OF
V. 149 IH Judicial District

AJ Struss & Company BRAZORIA COUNTY, TEXAS

ORDER ON MOTIONS AND OBJECTIONS HEARD ON JULY 7, 2014

On July 7, 2014, the Court considered the following motions and objections:

1. Defendant A. J. Struss Company, LLC's Motion for Partial Summary Judgment;
2. Defendant A. J. Struss Company, LLC's No Evidence Motion for Summary
Judgment Regarding Plaintiffs Personal Injury Allegations;
3. Defendant A. J. Struss Company, LLC's Objection to Summary Judgment Evidence
filed on June 10, 2014 (Ray Starr Affidavit);
4. Defendant A. J. Struss Company, LLC's Objection to Durable Power of Attorney;
5. Defendant A J. Struss Company, LLC's objections and reply to Plaintiffs Response
to Defendant's No Evidence Motion for Summary Judgment Regarding Plaintiffs
Personal Injury Allegations;
6. Defendant A. J. Struss Company, LLC's Objection to the Affidavit of Lynette Starr;
and,
7. Plaintiffs Objection to the records marked as Exhibit "A" purporting to be FEMA
records.

The Court, having considered all Motions, objections, responses, replies, briefs and sur-replies
by all parties, all evidence, the pleadings on file and arguments of counsel, the Court makes the
following rulings. Therefore, it is

ORDERED, ADJUDGED AND DECREED-

1. The Defendant's Objection to Plaintiffs "Undisputed Facts" is sustained;
2. The Defendant's Objection to the affidavit of Lynette Star is overruled;
3. The Plaintiffs Objection to the records marked as "Exhibit A" purporting to be
FEMA records is sustained;
4. The Defendant's Objection to Ray Starr's Affidavit is overruled;
5. The Defendant's Objection to the Durable Power of Attorney is sustained;
6. The Motion for Summary Judgment regarding standing is granted as to property
damage claims; and
7. The No Evidence Motion for Summary Judgment in regard to a lack of expert witness
testimony is granted,

The Court further finds that the rulings in this Order will serve as a Final Judgment because
they dispose of all of Plaintiff's claims. Costs of Court will be taxed against the party incurring
same.
 SIGNED this the I Cr day of Ppctibor , 2014.

JUDGE PRESIDING

APPROVED AS TO FORM:

Quinn
BA No. 16433600
Lance Olinde, Jr.
TBA No. 15254215
Ramey, Chandler, Quinn & Zito, P.C.
One Bering Park
750 Bering Drive, Suite 600
Houston, Texas 77057
713-266-0074 - Phone
713-266-1064 - Fax
Wquinn@ramey-chandlencom
Attorneys for Defendant,
Struss Company LLC

Savannah Robinson
TBA No. 17108150
Law Office of Savannah Robinson
1822 Main
Danbury, Texas 77534
979-922-8825 — Phone
979-922-8857 — Fax
savannahrobinson@aol.com
Attorney for Plaintiff,
Lynette Starr