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Chase v. Emmanuel Packing

Court of Appeals of Texas, Fifth District, Dallas

June 27, 2017

JENNIFER CHASE, Appellant
v.
EMMANUEL PACKING AND NEENA MALIK PACKING, AND GHARBIEH & ASSOCIATES LLC, AND SUBHI GHARBIEH, INDIVIDUALLY, Appellees

         On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-06915

          Before Justices Fillmore, Whitehill, and Boatright

          MEMORANDUM OPINION

          JASON BOATRIGHT, JUSTICE

         Appellant Jennifer Chase rented an apartment owned by the Packings. Gharbieh & Associates LLC managed the property; Subhi Gharbieh was one of its brokers.[1] Chase claims that rain leaked through an apartment window, causing a mold infestation that made her ill. She sued the Packings for premises liability, negligence, gross negligence, and failure to repair or remedy property. The Packings filed two no-evidence summary judgment motions. Chase filed two motions for continuance. The trial court granted the Packings' summary judgment motions, but not Chase's motions for continuance. She argues on appeal that this was error. We affirm.

         Chase presents her argument in two issues. She contends that the trial court constructively denied her motions when it granted summary judgment, and that this was error. She also argues that the trial court should have denied the Packings' summary judgment motions.

         I. Summary Judgment

         We review grants of summary judgment de novo. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). A no-evidence summary judgment motion must allege that there is no evidence for at least one essential element of a claim or defense on which the opponent would have the burden of proof at trial. Tex. R. Civ. Proc. 166a(i). The motion must state the elements for which there is no evidence. Id. It must also allege that adequate time for discovery has passed. Id. The party opposing the motion must present evidence raising a genuine issue of material fact to support the challenged elements. Id. In reviewing a no-evidence summary judgment motion, we consider the evidence presented by the motion and response in the light most favorable to the nonmovant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence supporting the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).

         A cause of action relating to mold exposure constitutes a toxic tort cause of action. Plunkett v. Conn. Gen. Life Ins. Co., 285 S.W.3d 106, 120 (Tex. App.-Dallas 2009, pet. denied). Toxic tort cases require proof of both "general" and "specific" causation. Id. General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1997). To preclude the Packings' no-evidence summary judgment on the specific causation element of her claims, Chase was required to present more than a scintilla of probative expert evidence showing that exposure to the mold was a substantial factor in causing her illness. See Cerny v. Marathon Oil Corp., 480 S.W.3d 612, 621-22 (Tex. App.-San Antonio 2015, pet. denied) (applying Havner in summary judgment context). Havner also requires the plaintiff to present some evidence excluding other plausible causes of the injury with reasonable certainty. Id. (citing Havner, 953 S.W.2d at 720).

         In her appellate brief, Chase argues that she provided adequate evidence in support of her claims, citing Foster v. Denton Indep. School Dist., 73 S.W.3d 454, 463 (Tex. App.-Fort Worth 2002, no pet.). She contends that the trial court should have denied the Packings' motions for summary judgment because Chase offered more than a mere scintilla of probative evidence. She argues in her brief that two pieces of evidence support her claims, a medical report prepared by a physician, and a mold inspection and testing report prepared by a mold remediation business. Chase contends that the medical report establishes causation and harm, which are essential elements of her premises liability and negligence claims. She argues that the mold report establishes appellees' duty to her, which is a concept related to essential elements of her claims for gross negligence and failure to repair or remedy. We will discuss the two reports and the corresponding causes of action in turn.

         A. Medical Report: Premises Liability and Negligence

         In the section of the medical report titled "HISTORY OF PRESENT ILLNESS, " the physician wrote that Chase "notes in her history that in October she moved into a new residence and since that time, she thinks that she is being exposed to a considerable amount of mold related to that residence." He also noted that she had a history of pneumonia, diabetes, and smoking. The "ASSESSMENT AND PLAN" section provided in relevant part: "Hypersensitivity pneumonitis. I assume this is the underlying etiology given her history of symptom development in November, a few weeks after moving into her home in October with likely exposure to mold within her home. I think she needs a change of her home environment." The physician discussed a possible course of medical treatment for this condition, but concluded, "overwhelmingly I think a little bit of time away from the causative agent, she should have profound reversal of her hypersensitivity pneumonitis if in fact that is the case." The physician acknowledged that "it is possible that she has pneumonia or some other bacterial etiology." He also stated that the symptoms he associated with hypersensitivity pneumonitis might have been caused by severe sepsis. The physician did not conclude that Chase suffered from hypersensitivity pneumonitis, the condition that she alleges she developed from exposure to mold in the Packings' apartment. On the contrary, he acknowledged that she might have a different illness, one caused by something other than mold. And his assessment was conditioned on information appellant provided to him.

         Chase offered no evidence other than the medical report to establish that mold caused her illness. Because there is no evidence that could exclude or rule out potential causes of symptoms and illness other than mold, Havner, 953 S.W.2d at 720, and no evidence that could negate plausible causes other than mold, id., Chase did not provide a scintilla of evidence proving causation. As Chase explained in her original petition, proximate causation is an essential element of a claim for premises liability, CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 1999), and negligence, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). Because she did not provide a scintilla of evidence of an essential element of those claims, the trial court did not err in granting summary judgment on them.

         B. Mold Report: Gross Negligence and Failure to Repair or Remedy

         Chase notes in her appellate brief that a mold inspection and testing report recommended that a licensed mold contractor conduct a remediation under formal procedures. She writes, "Any reasonable homeowner would find that a report such as this which recommends remediation of a dangerous mold spore by a professional with written protocols must create a duty to occupants living in such a residence [and] put the owner on notice of foreseeable injuries due to the toxicity of the spores." However, in Chase's original and first amended petitions, as well as her responses to the Packings' summary judgment motions, Chase did not allege that she informed appellees about this report. She has alleged that she emailed Subhi Gharbieh to inform him of a "possible mold problem, " and that she emailed him a couple of days later to tell him that she would "need to have potential mold situation tested ASAP, " but there is no evidence of these emails in the record. Instead, there is evidence only that Chase told appellees there was a water leak. On appeal, she does not try to explain how the water leak imposed a duty on the ...


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