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Foussadier v. Triple B Services, LLP

Court of Appeals of Texas, First District

May 16, 2019

EDWARD FOUSSADIER, Appellant
v.
TRIPLE B SERVICES, LLP, Appellee

          On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2016-03307A

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          Peter Kelly Justice

         Appellant Edward Foussadier sued Triple B Services and the Texas Department of Transportation after he was injured in a bicycle accident on a public road. Foussadier alleged that Triple B's improperly performed roadwork caused a defect that, in turn, caused his accident. He alleged claims for negligence and breach of implied warranty against Triple B. The trial court granted a take-nothing no-evidence summary judgment in favor of Triple B, and it denied Foussadier's motion to reconsider the interlocutory summary judgment. The trial court severed the claims against Triple B, making the summary judgment final.

         On appeal, Foussadier raises two issues. He contends that the trial court erred by granting the no-evidence summary judgment because an adequate time for discovery had not passed. He also contends that the trial court erred by denying his motion for reconsideration because he filed additional evidence that created a fact question.

         We affirm.

         Background

         The Texas Department of Transportation maintains FM 2978 between Hufsmith Road and Bogs Road in Hufsmith, which is northeast of Tomball, Texas. Between 2012 and 2014, Triple B Services performed roadwork on FM 2978 between Hufsmith Road and Bogs Road under contract with the Department. About a year after Triple B completed its work, Foussadier, an avid cyclist who was training for a charity cycling event, was riding on the same stretch of road where Triple B had worked when his wheel fell into a "gaping hole." Foussadier lost control and fell from his bicycle, breaking his collarbone.

         In January 2016, Foussadier sued the Department for premises liability and Triple B for negligence, premises liability, and breach of the implied warranty of good and workmanlike performance of repair or modification services. He alleged that the defect that caused his accident "would not have existed but for Triple B's negligent roadwork."

         In November 2017, Triple B moved for summary judgment on no-evidence grounds. It asserted that there was no evidence that it had caused the condition that allegedly caused Foussadier's injuries. Triple B asserted that there was no evidence that: (1) it had acted in a grossly negligent manner, with malice or bad faith; (2) it breached a legal duty owed to Foussadier that proximately caused his accident; and (3) it had created the alleged premises defect that caused Foussadier's injuries. Triple B further asserted that there was no evidence that: (1) its work was not performed in a good and workmanlike manner, (2) it warranted its work to Foussadier, or (3) Foussadier's injuries were caused by a breach of warranty.[1]

         Foussadier responded with transcripts of his deposition taken on June 15, 2016 and October 17, 2017. He also attached the Department's answers to his second and third sets of interrogatories. Some of the interrogatory responses provided the opinions of John Elam, a professional civil engineer. Elam acknowledged that he did not inspect the site of the accident and road defect. He opined that normal use would not have caused the defect one year after repairs. He asserted that the "[d]efect was caused by poor compaction of sub-grade, base and not following plans building a drainage ditch adjacent to the failed area." In other words, he opined that the defect was caused by Triple B's faulty work.

         Triple B objected to Foussadier's summary judgment evidence on the grounds that Elam's expert opinion was speculative because Elam did not provide the factual basis for his conclusion. Triple B also objected to an errata sheet that was made after the motion for summary judgment was filed and that altered Foussadier's testimony about the open and obvious nature of the hole or crack in the road.

         The trial court sustained Triple B's objections to Foussadier's deposition errata sheet and to Elam's opinion as reflected in the interrogatory responses. The court called Elam's opinions "the very definition of ipse dixit testimony" because there was "no support for his opinion."

         Foussadier filed a motion for reconsideration seeking denial of Triple B's motion for summary judgment. The trial court denied the motion for reconsideration and severed the claims against Triple B. Foussadier appealed.

         Analysis

         Foussadier raised two issues on appeal. First, he challenged the granting of the no-evidence motion for summary judgment, arguing that there had not been an adequate time for discovery. Second, he challenged the trial court's denial of his motion for reconsideration, arguing that he had filed additional evidence, the Helmer Engineering expert report, which identified a fact issue. We review a trial court's ruling on a motion for summary judgment de novo. Tex. Workforce Comm'n v. Wichita Cty., 548 S.W.3d 489, 492 (Tex. 2018).

         I.Foussadier waived his first issue by not seeking a continuance ...


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