Appeal from the 55th District Court Harris County, Texas
Trial Court Case No. 2016-03307A
consists of Justices Lloyd, Kelly, and Hightower.
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.
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.
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.
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."
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.
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
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.
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."
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.
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