Opinion

Opinion issued September 4, 2003

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00815-CV

____________

CLYDE ASHWORTH, PAULA WELCH, JAMES ALBER, MARY ALBER,

BRET BIERI, AND PAMELA BIERI, Appellants

V.

ASPECT RESOURCES LLC, VERITAS DGC LAND, INC., AND

AMERIDIAN TECHNOLOGIES, INC., Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 99CV0633

MEMORANDUM OPINION

This is an appeal from a final judgment signed on September 21, 2001. The

final judgment consists of a partial, no-evidence summary judgment on the record

with respect to certain causes of action and, specifically referenced in the final

judgment, a directed verdict on other causes of action and a jury verdict on the one

cause of action submitted to the jury.

The issues for this Court are whether the trial court (1) erred in granting a

partial no-evidence summary judgment against the plaintiffs/appellants

and in favor

of the defendants/appellees, Aspect Resources, LLC (“Aspect”) and Veritas DGC

Land, Inc. (“Veritas”), under the appellants’ legal theories of res ipsa loquitur, strict

liability, negligent misrepresentation, geophysical trespass, and trespass; (2) erred in

directing a verdict that the appellants take nothing against the defendant/appellee,

Ameridian Technologies, Inc. (“Ameridian”); (3) erred in directing a verdict that the

appellants take nothing against Aspect and Veritas, under the appellants’ legal

theories of nuisance, fraud, trespass, gross negligence, and for the recovery of mental

anguish and/or punitive damages; (4) erred in excluding certain witnesses and in

restricting certain testimony at trial; and (5) abused its discretion when it denied the

appellants’ motion for new trial because plaintiffs’ exhibit 64 was not tendered to the

jury. We affirm.

Background

Aspect acquired certain drilling rights in the Gillock Field in Galveston County

sometime before February 1998 and wished to conduct geophysical or seismic

operations, mapping the geology of the area. The seismic operations in question

involved exploding in specific shot holes, approximately 80 feet in the ground, using

2.5 to 5.5 pounds of explosives, and the use of vibroseis trucks.

Veritas was the contractor Aspect hired to conduct the actual seismic

operations. Aspect also hired Ameridian to provide seismic monitoring services for

the vibroseis operations. Although Ameridian’s letterhead characterized the company

as a “consulting engineering” firm, in fact, Ameridian did not employ engineers.

On February 24, 1998, Aspect sent a letter to the fire marshal of the city of

Dickinson to apply for a permit to conduct such geophysical or seismic operations.

The letter also nominated a company to serve as the third-party engineer for the

operations. However, the nominated company was not ultimately hired by Aspect.

The mayor of the city of Dickinson signed the letter “agreed and accepted” on

February 24, 1998. Aspect appears to have sent similar letters to other cities within

Galveston County. The record does not contain copies of these letters with the

acceptance of the other cities noted thereon.

Apparently, Aspect also sent a letter to Galveston County because, on May 11,

1998, the Commissioners’ Court for Galveston County issued permit number CR

2220, authorizing Aspect to conduct limited geophysical operations. The permit

required Aspect to employ a third-party engineer specializing in seismology, but did

not name the third-party engineer. The engineer was obligated to remain on the job

during the performance of all operations, and the engineer’s duties included making

recommendations designed to eliminate any potential damage to property belonging

to any third party. The permit also required Aspect to contact each resident or

business within 250 feet of its operations before the operations began and to place ads

in local newspapers explaining the work to be done.

The seismic testing for the Gillock project began on July 13, 1998 and

continued until either July 21, 1998 or August 3, 1998. For purposes of this appeal,

the precise end date is not important.

Appellants, Paula Welch and Clyde Ashworth, lived in and owned a home

outside any city limits, but within the territory of Galveston County. Their home was

located between 2,500 and 2,750 feet from the area where the seismic operations were

being conducted. Appellants Mary and Jim Alber lived in a home next to the

Welch/Ashworth home in Galveston County. Appellants Bret and Pamela Bieri lived

in and owned a home in the city of Dickinson. All the appellants complained that the

blasting, on or about July 18, 1998, caused their house foundations to crack.

On July 19, 1998, in response to the complaints of Welch, Mickey Bradley of

Bradley Safety Systems in Oklahoma, a subcontractor of Ameridian, was sent to her

house. He came out for about an hour on July 19, and returned on July 20 for the

purpose of setting up seismographs on the property. At some point, Bradley also

went to look at the Alber house.

On July 31, 1998, Bradley submitted a report to Aspect. That report stated that

although the shots were audible on July 20, 1998, the seismographs set up on the

Welch/Ashworth property were not triggered. The report also stated that the

Welch/Ashworth and Alber homes had no interior wall cracks, and that the

foundation cracks claimed by the homeowners to have been caused by the blasting,

in fact, were filled with dirt, grass, or grease and appeared to be “old” cracks. It

appears that based on the Bradley report, Aspect paid no damages to any of the

homeowners.

I n the summer of 1999, appellants brought separate suits against their

homeowners’ insurance carrier. The insurance carrier filed a third party petition

against Aspect, Veritas, and Ameridian, claiming that their seismic activities had

damaged the appellants’ properties. Appellants subsequently amended their petitions

to assert claims directly against Aspect, Veritas, and Ameridian. Welch and

Ashworth (in their third amended petition) asserted causes of action against Aspect,

Veritas, and Ameridian based on nuisance, negligence/gross negligence, tortious

conduct,

and strict liability and sought actual and exemplary damages, as well as

damages for mental anguish and attorney’s fees. They also specifically pleaded the

doctrine of res ipsa loquitur. The second amended petitions of the Albers and the

Bieris contained pleadings essentially the same as those of Welch and Ashworth. The

appellants and their insurance carrier settled their disputes in 2000.

The Summary Judgment

In their first point of error, appellants argue that the trial court erred in granting

a no-evidence summary judgment for Aspect and Veritas on strict liability,

geophysical trespass, res ipsa loquitur, negligent misrepresentation, and trespass.

Aspect and Veritas filed their first joint “no-evidence motion for summary

judgment” on November 3, 2000. They sought summary judgment with respect to the

following claims set forth in the appellants’ first amended petition and intervenors’

petition: negligence, the intentional torts, strict liability, and exemplary damages.

Aspect and Veritas filed their second joint “no-evidence motion for summary

judgment” on January 19, 2001 to address the appellants’ cause of action for nuisance

that was asserted in the third amended petition of Welch and Ashworth and the

se cond amended petitions of the Albers and the Bieris, all filed on January 12, 2001.

On February 12, 2001, before the jury panel came in for voir dire, the trial court

considered and ruled on Aspect and Veritas’s motions for summary judgment. On the

record, the trial court granted the no-evidence motion for summary judgment on the

appellants’ claims under the doctrine of res ipsa loquitur, strict liability, negligent

misrepresentation, geophysical trespass, and trespass. Also on the record, the trial

court denied the no-evidence motion for summary judgment on the appellants’ claims

of nuisance, negligence, and fraud. We follow the usual standards in reviewing the

trial court’s granting of summary judgment. See Flameout Design & Fabrication,

Inc. v. Pennzoil Caspian Corp. , 994 S.W.2d 830, 834 (Tex. App.— Houston [1st

Dist.] 1999, no pet.); Tex. R. Civ. P. 166a(i).

1. Geophysical Trespass and Trespass

The appellants complain that Aspect and Veritas did not include the claim of

geophysical trespass or trespass

in either of their motions for summary judgment.

According to the appellants, it was, therefore, error to grant the summary judgment

on these causes of action and the causes of action should have gone to the jury.

This Court has read the operative pleadings of the appellants at the time of the

summary judgment, which were also the ones in effect when the judgment was

signed.

As Aspect and Veritas point out, these pleadings do not contain a cause of

action for geophysical trespass or trespass. The trial court, in the summary judgment

ruling, commented, “I’m not real convinced that [geophysical trespass] is raised by

the pleadings. . . . The trespass allegations are granted, geophysical or otherwise.”

The appellants state in their brief that the issues of geophysical trespass or

trespass were raised in Welch’s answer and counter-claim, filed in September 1999.

The appellants do not argue that the issues of geophysical trespass or trespass were

contained in their final trial pleadings in effect when the summary judgment was

granted, and, clearly, these earlier-pleaded issues were abandoned in the final trial

pleadings. See, e.g., Wheeler v. Methodist Hosp. , 95 S.W.3d 628 , 634 n.2 (Tex.

App.— Houston [1st Dist.] 2002, no pet.) (by omitting from his second amended

petition certain claims, plaintiff abandoned them; therefore, appeals court did not

consider whether summary judgment on omitted claims was proper); Akin v. Santa

Clara Land Co., Ltd. , 34 S.W.3d 334, 339 (Tex. App.— San Antonio 2000, pet.

denied) (plaintiff waived any complaint of trial court’s grant of summary judgment

on two causes of action abandoned when plaintiff amended her pleadings). Nor does

the record indicate that the issues of geophysical trespass or trespass were tried by

consent. Therefore, for the reasons set forth in Wheeler and Akin , we do not consider

whether summary judgment was appropriate on the issues of geophysical trespass or

trespass.

2. Negligent Misrepresentation

The elements of a cause of action for negligent misrepresentation are (1) a

defendant makes a representation in the course of business or a transaction in which

the defendant has a pecuniary interest; (2) the defendant supplies false information

for the guidance of others in their business; (3) the defendant did not exercise

reasonable care in obtaining or communicating the information; and (4) the plaintiff

suffers pecuniary loss by justifiably relying on the representation. Federal Land Bank

Ass’n of Tyler v. Sloane , 825 S.W.2d 439, 442 (Tex. 1991). In their brief, the

appellants assert that Aspect and Veritas made several misrepresentations regarding

the seismic exploration that is the subject of this appeal . The appellants complain that

Aspect and Veritas misrepresented to “the City”

that nearby property owners would

be notified of seismic activities and protected from harm and that an engineering firm

would be retained to monitor seismic activities.

However, the appellants make no claim that such misrepresentations were made

to them by Aspect or Veritas. In granting summary judgment for Aspect and Veritas

on the cause of action for negligent misrepresentation, the trial court stated: “I am

convinced under the case law negligent misrepresentation, there’s got to be

misrepresentation made directly to the property owners.” Under the circumstances

of this case, in which the evidence in the record shows that representatives of Aspect

and Veritas did not communicate the purported misrepresentations to the appellants

and that the appellants learned of the purported misrepresentations of Aspect and

Veritas after they sustained the alleged damages, we agree with the trial court. See,

e.g., McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests , 991 S.W.2d 787,

794 (Tex. 1999) (negligent misrepresentation cause of action available only when

information is transferred by attorney to known party for known purpose); Trans-Gulf

Corp. v. Performance Aircraft Servs., Inc. , 82 S.W.3d 691, 696 (Tex. App.—

Eastland 2002, no pet.) (section 552(2) of Restatement of Torts requires actual

knowledge of recipient’s identity and specific intent on part of alleged tortfeasor that

claimant would rely on misrepresentation); Facciolla v. Linbeck Constr. Corp. , 968

S.W.2d 435, 443 (Tex. App.— Texarkana 1998, no pet.) (plaintiff never established

that defendant ever made misrepresentation directly to plaintiff).

Recognizing the absence of evidence that Aspect and Veritas made

misrepresentations to them, the appellants assert that they are third-party beneficiaries

of a “contract” who were harmed by the misrepresentations of Aspect and Veritas

concerning notice, safety, and monitoring to “the Cit y.” It is well-settled law that a

party may sue to enforce a contract as a third-party beneficiary if the contracting

parties clearly intended that the contract benefit the third party. However, the

appellants neither explain nor demonstrate what the contract is that they rely upon or

what the intent of the contracting parties was. In three of the cases on which the

appellants rely, the courts held that there was no clear intention that the contracting

parties intended the third party to benefit.

Two other cases cited by the appellants

do not discuss third-party beneficiaries.

While acknowledging that a “p ermit” may not be a “contract,” the appellants

maintain that the doctrine of promissory estoppel applies when a promise is not

enforceable in contract. In support, t hey cite a case in which a court of appeals

concluded that the city of Houston issued three permits vesting the plaintiff with the

right to drill and that the right was not revocable, except under the terms of the

ordinance or if city officials determined that the plaintiff’s drilling was affecting the

public health and safety. See Maguire Oil Co. v. City of Houston , 69 S.W.3d 350,

370 (Tex. App. — Texarkana 2002, pet. denied). Therefore, the court found a

“promise” to allow the plaintiff to drill under the terms of the governing ordinance

as long as there was no effect on the public health and safety. See id. We fail to see

how the holdings in Maguire support the appellants’ attempt to use promissory

estoppel to remedy the absence of evidence on the elements of the cause of action for

negligent misrepresentation. The trial court did not err in granting the summary

judgment motion on the negligent misrepresentation cause of action.

3. Res Ipsa Loquitur

Res ipsa loquitur is a rule of evidence whereby negligence of the alleged

wrongdoer may be inferred from the mere fact that the accident happened, provided

(1) the character of the accident and the circumstances attending it lead reasonably

to the belief that, in the absence of negligence, it would not have occurred, and (2) the

thing which caused the injury is shown to have been under the management and

control of the alleged wrongdoer. Haddock v. Arnspiger , 793 S.W.2d 948, 950 (Tex.

1990); Honea v. Coca Cola Bottling Co. , 183 S.W.2d 968, 969 (Tex. 1944). In Mobil

Chemical Co. v. Bell , 517 S.W.2d 245, 255 (Tex. 1974), the supreme court stated that

in a “res ipsa” case, where several negligent acts may be inferable from the

circumstances of the accident, a single broad issue inquiring generally about

negligence would be proper. See also Burk Royalty Co. v. Walls , 616 S.W.2d 911,

924 (Tex. 1981) (supreme court restated what it said in Bell concerning res ipsa

loquitur).

Because res ipsa loquitur is a rule of evidence, and not a cause of action, it was

error to grant summary judgment thereon. However, we do not find such error to

have been harmful. The effect of successfully invoking the res ipsa doctrine is that

the plaintiff can survive no-evidence procedural challenges. See Bell , 517 S.W.2d at

251 (no presumption of defendant’s negligence arises; jury is merely free to infer

negligence; plaintiff continues to have burden of persuading jury by preponderance

of evidence that defendant was negligent). In the court below, the appellants survived

a no-evidence summary judgment motion on their negligence cause of action. The

issue of negligence, as a broad form question, was submitted to the jury for all the

appellants against Aspect and Veritas. The appellants did not object in the trial court

to the wording of the charge concerning negligence.

4. Strict Liability

The appellants’ brief contains no argument about why the trial court erred in

granting a summary judgment in favor of Aspect and Veritas on the cause of action

of strict liability. Accordingly, this issue is not preserved on appeal. Maranatha

Temple, Inc. v. Enterprise Products Co. , 893 S.W.2d 92, 106 (Tex. App.—Houston

[1st Dist.] 1994, writ denied).

Therefore, the appellants’ first point of error is overruled.

Exclusion of Nonplaintiff Homeowner Witnesses

In their second point of error, the appellants contend that the trial court erred

in excluding their nonplaintiff homeowner witnesses. The appellants do not identify

these witnesses or specify their number in their brief, but it appears they are

complaining about six nonplaintiff homeowner witnesses. Two other nonplaintiff

homeowner witnesses were deposed and testified at trial. The Court has carefully

reviewed the January 8, 2001 motion of Aspect and Veritas to exclude testimony of

nonplaintiff homeowners, the appellants’ motion to quash the depositions of

nonplaintiff homeowner witnesses, Aspect’s response to the motion to quash, the

record of the January 26, 2001 hearing on the motions to exclude and to quash, the

February 12, 2001 motion of Aspect and Veritas to strike plaintiffs’ witnesses’

testimony, and the trial court’s February 12, 2001 ruling on the record.

There is no signed order in the record relative to the motion to exclude

testimony, but the trial court ruled on the record as follows:

The Court is not going to allow people that don’t have a nexus to this

incident to testify because in this Court’s mind the prejudicial effect will

outweigh the probative value. If you’ve got damages from neighboring

homeowners who were within the blast area that affected the homes

involved in this lawsuit, I’m probably going to let them testify. If

they’re outside that area, I’m not going to let them testify and I will

sustain an objection to their testimony. But I’m not going to pre-rule on

what witnesses will say or may say or not say or whatever .

(Emphasis added.) Toward the end of the hearing, the trial court instructed the

appellants’ counsel that it would allow the designation of 10 nonparty homeowner

witnesses.

On February 12, 2001, the day trial proceedings began, Aspect and Veritas

filed a motion to strike plaintiffs’ witnesses’ testimony. According to that motion,

nonplaintiff homeowners Glenn Schaeffer, Tommy Tidwell, Estella & Joe Villareal,

Jim Wines, and Sandra Wilbanks had failed to appear for their noticed deposition on

February 3, 2001, and Aspect and Veritas sought to have their testimony excluded at

trial. Only two nonplaintiff homeowners had been deposed on February 3: Jennifer

Acklen and Eddie Burns.

The record does not contain any response by the appellants

to the motion to strike, nor does the record contain a written order on that motion.

Before the jury panel came in, the trial court ruled as follows concerning the

motion to strike:

As far as motions to exclude witnesses, I made my ruling in previous --

made my previous ruling. And I will tell you that, that as witnesses are

called and objections are made to exclude them, I’m going, I’m going

to consider them. But we know we have two, we know we have two

nonparty property owners who were deposed. We know we’ve got those

two video depositions. They’ve been video taped, I presume, or at least

that’s what the pleadings indicate. And certainly those are conformative

with my Order. And they’re certainly going to be allowed to be

presented.

(Emphasis added.)

This is the only “exclusion ruling” relative to nonplaintiff homeowner

witnesses referenced by the appellants in their brief. It is clear from what the trial

court said that no witnesses were excluded before trial. The trial court stated it would

rule on the exclusion of witnesses as they were called, but it does not appear from the

record that the appellants called any nonplaintiff homeowner witnesses, other than

Jennifer Acklen and Eddie Burns, who testified through videotaped depositions.

Rule 103 of the Texas Rules of Evidence provides that error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right

of the party is affected and (1) a specific objection is made on the record and (2) the

substance of the evidence was made known to the court. With respect to the subject

matter of this point of error, this Court concludes that the trial court’s ruling

complained of did not exclude evidence or, if it did, the appellants failed to object to

the ruling when it was made. Furthermore, the appellants did not make the substance

of the testimony of the nonplaintiff homeowner witnesses known to the trial court.

While the appellants make the conclusory statement that they were ultimately harmed

by the trial court’s ruling and that the effect of excluding the testimony “more likely

than not caused the rendition of an improper judgment,” the Court is unable to

evaluate this statement in the absence of a bill of exception. See Tex. R. App. P. 33.2;

Wade v. Comm’n for Lawyer Discipline , 961 S.W.2d 366, 374 (Tex. App.—Houston

[1st Dist.] 1997, no pet.) (appellant made no offer of proof to identify excluded

testimony of which he now complains). Therefore, the appellants’ second point of

error is overruled.

Robinson/Daubert Hearing

In their third point of error, the appellants argue that the trial court erred in

restricting Dr. Ebow Coleman’s testimony on the issue of causation without

conducting a Robinson/Daubert

hearing.

We have reviewed the record, which consists of the Robinson/Daubert motion

and supplement thereto filed by Aspect and Veritas (supported by an affidavit and

containing record references to the deposition of Dr. Coleman) and the reporter’s

record of the discussion of the trial court and attorneys for the parties concerning

whether Dr. Coleman’s testimony should be limited. For several reasons, we

conclude the trial court did not abuse its discretion by ruling to limit the testimony of

Dr. Coleman without holding what the appellants characterize as a

Robinson/Daubert- style hearing.

First, in fact, there was a hearing on February 15, 2001, on the

Robinson/Daubert challenge to Dr. Coleman’s testimony. No evidence was

presented, but arguments of counsel were heard. Second, at the hearing, the record

does not show that the appellants, who had the burden of establishing the

qualifications of Dr. Coleman, attempted to present evidence or to call Dr. Coleman

as a witness, even though he was present in the courtroom. Third, even assuming that

the February 15 hearing was not a proper Robinson/Daubert hearing, and we do not,

we have previously held that a Robinson/Daubert hearing may not be necessary. A

trial court may base a Robinson/Daubert ruling on the experts’ deposition and

affidavit testimony, rather than calling the experts to testify at the hearing. See Piro

v. Sarofim , 80 S.W.3d 717, 720 (Tex. App.—Houston [1st Dist.] 2002) (order). That

is what appears to have happened here.

Even if there was error as the appellants assert, and we do not agree that there

was, despite the ruling of the trial court, Dr. Coleman was allowed to testify, in

essence, that the seismic operations caused damage to the homeowners’ foundations.

Any error was harmless. Therefore, the appellants’ third point of error is overruled.

Directed Verdicts for Aspect, Veritas, and Ameridian

In their fourth point of error, the appellants contend the trial court erred in

granting Ameridian’s motion for a directed verdict, dismissing their suit against

Ameridian. In their fifth point of error, the appellants maintain the trial court erred

in granting Aspect’s and Veritas’s motion for directed verdict on the issues of fraud,

gross negligence, punitive damages, nuisance, and mental anguish. The appellants

brief these two points together; therefore, we address them together.

We review the rendition of a directed verdict in the light most favorable to the

party against whom the verdict was rendered, and we disregard all contrary evidence

and inferences. Qantel Bus. Sys., Inc. v. Custom Controls Co. , 761 S.W.2d 302, 303

(Tex. 1988); Smith v. Aqua-Flo, Inc. , 23 S.W.3d 473, 476 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied). The movant is entitled to a directed verdict when (1) a

defect in the opponent’s pleading makes it insufficient to support a judgment; (2) the

evidence conclusively establishes the truth of the factual propositions that, under the

substantive law, establish the right of movant to judgment; or (3) the evidence is

legally insufficient to raise an issue of fact on a fact proposition that must be

established for movant’s opponent to be entitled to judgment. Neller v. Kirschke , 922

S.W.2d 182, 187 (Tex. App.—Houston [1st Dist.] 1995, writ denied). The appellants

must refer the appellate court to those portions of the record where the evidence is to

be found demonstrating that the directed verdict was error. See Nawas v. R & S

Vending , 920 S.W.2d 734, 737 (Tex. App.—Houston [1st Dist.] 1996, no writ); Tex.

R. App. P. 38.1(h).

1. Directed Verdict for Ameridian

After the appellants rested their case, Ameridian moved for a directed verdict

on the record, stating that the appellants had failed to establish evidence on all the

requisite elements of their claims for negligence, gross negligence, nuisance, and

fraud against Ameridian. The trial court granted the motion.

In their brief, the appellants set forth the elements of common-law fraud,

negligence, and gross negligence. However, relative to fraud, the appellants fail to

refer to those places in the record showing evidence that is legally sufficient to raise

an issue of fact on each element of fraud as it relates to Ameridian.

With respect to negligence, the appellants state in their brief that they

“produced a significant amount of information demonstrating negligence on the part

of the Appellees.” They contend: “Clearly, the Appellees failed to adequately

monitor testing and ensure that residents were not harmed by Appellees’ activities.”

However, the appellants fail to refer to those places in the record showing evidence

that is legally sufficient to raise an issue of fact on each element of negligence as it

relates to Ameridian. Concerning gross negligence, the appellants fail to refer to

those places in the record showing evidence that is legally sufficient to raise an issue

of fact on each element of gross negligence as it relates to Ameridian.

Finally, there is neither argument nor record references concerning Ameridian’s

motion for directed verdict on the issue of nuisance in the appellants’ brief. Because

of the appellants failure to provide this Court with specific record references to

evidence in the record demonstrating that fact issues existed on each element of each

cause of action asserted against Ameridian, the fourth point of error is overruled. See

Tex. R. App. P. 38.1(h); Wade , 961 S.W.2d at 373 .

2. Directed Verdict for Aspect and Veritas

Like Ameridian, after the appellants rested their case, Veritas moved for a

directed verdict on the record, arguing that the appellants had failed to provide

evidence of the causes of action for fraud, nuisance, mental anguish, negligence, and

gross negligence or of punitive damages. Aspect also moved for a directed verdict,

adopting the arguments of Veritas. The trial court granted the motions with respect

to fraud, mental anguish, nuisance, and gross negligence. The trial court denied the

motions with respect to negligence, and the issue of negligence of Aspect and Veritas

was submitted to the jury.

As noted above, in their brief addressing in the same section points of error

four and five, the appellants list the elements of common-law fraud. However, the

appellants fail to refer to those places in the record showing evidence that is legally

sufficient to raise an issue of fact on each element of fraud as it relates to Veritas.

With respect to evidence of fraud by Aspect, the appellants refer to plaintiffs’

exhibits 2, 3, 4, and 5 as containing fraudulent averments by Aspect to the city of

Texas City

and to “the many false assertions listed previously (which will not be

reiterated, for purposes of brevity).” Exhibits 4 and 5 are neutral on their face, and

without other testimony stating that the factual statements therein are fraudulent or

misrepresentations, they themselves provide no evidence of fraud. Even if exhibits

2 and 3 offer some evidence on certain elements constituting fraud, they do not offer

evidence on all elements of fraud relating to Aspect.

Concerning gross negligence, the appellants fail to refer in their brief to those

places in the record showing evidence that is legally sufficient to raise an issue of fact

on each element of gross negligence as it relates to Aspect or to Veritas.

Relative to nuisance, in their brief, the appellants state only that “[B]y and

through the testimony of the Appellants Paula Welch, Clyde Ashworth, Pamela and

Bret Bieri, James and Mary Alber and other independent witnesses, it was established

that Appellees’ seismic explorations resulted in excessive noise, strong vibrations,

and substantial damage to Appellants’ property.” The appellants do not provide this

Court with specific record references where the evidence supporting a nuisance cause

of action appears against Aspect and Veritas.

Although the appellants assert in their brief that the evidence in the record is

overwhelming on mental anguish, they neither list the elements of mental anguish,

provide record references to the evidence, or give any argument about their claims of

mental anguish. The appellants, having failed to provide this Court with specific

record references to evidence in the record demonstrating that fact issues existed on

each element of common-law fraud, gross negligence, nuisance, and mental

anguish—the causes of action asserted against Aspect and Veritas that were the

subject of the directed verdict motion—the fifth point of error is overruled. See Tex.

R. App. P. 38.1(h); Wade , 961 S.W.2d at 373 .

Plaintiffs’ Exhibit 64

In their sixth point of error, the appellants assert that the trial court erred in

denying their motion to vacate the modified judgment, motion to set aside jury

verdict, and motion for new trial because plaintiffs’ exhibit 64 may not have been

presented to the jury at the time of its deliberations.

We have reviewed the reporter’s record of the June 6, 2001 hearing on the

motion for new trial, and the reporter’s record of the trial, including the indexes. The

record shows as follows:

(1)The lists of exhibits “offered” and “admitted,” contained in the 13-volume reporter’s record of the trial, make no mention of plaintiffs’ exhibit 64.

The master index contained in the first volume of the trial exhibits states “P-64

Air-Jac Driller’s Logs (Not admitted).” In summary, according to the record,

plaintiffs’ exhibit 64 was not admitted into evidence.

(2)In October 2002, after the appellants filed their main brief in this Court,

but before the appellees filed their briefs or the appellants filed their reply

brief, the court reporter filed a plaintiffs’ exhibit 64. The exhibit does not contain a reporter’s certificate. No one complains that the exhibit is not the plaintiffs’ exhibit 64 in question.

(3)During the June 6 hearing, counsel for the appellants agreed with the

trial court that at the conclusion of the evidence at trial, representatives from

each side approached the court reporter, compiled with her all of the evidence

that had been introduced, and indicated to the trial court that they were

satisfied that all of the evidence had been compiled and was to be delivered to

the jury.

(4) Three witnesses were called at the June 6 hearing. One of them, a juror in the case, testified that she had not seen plaintiffs’ exhibit 64 among the exhibits in the jury room during its deliberations.

(5)A second witness, a legal assistant to the appellants’ counsel, testified

that plaintiffs’ exhibit 64 was among the exhibits compiled for delivery to the

jury room, and that, to the best of her recollection, plaintiffs’ exhibit 64 was

sent from the courtroom back to the jury room.

(6) The third witness, an attorney for Aspect, testified that she recalled a black notebook containing driller’s logs being compiled with other exhibits and

being taken to the jury room. Her description of the exhibit matched that of plaintiffs’ exhibit 64.

A trial court’s denial of a motion for new trial may be overturned only upon a

showing of a clear abuse of discretion. See Champion Int’l Corp. v. Twelfth Court

of Appeals , 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding); Rabie v. Sonitrol

of Houston, Inc. , 982 S.W.2d 194, 196 (Tex. App.—Houston [1st Dist.] 1998, no

pet.). A trial court abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. See Johnson v.

Fourth Court of Appeals , 700 S.W.2d 916, 918 (Tex. 1985) (orig. proceeding); Rabie ,

982 S.W.2d at 196 . Because there is no evidence in the record that plaintiffs’ exhibit

64 was offered or admitted into evidence, because the appellants’ counsel agreed at

the June 6 hearing that all the evidence had been compiled to be taken to the jury

room, and because the testimony of two of the witnesses at the June 6 hearing would

have allowed the trial court to conclude that, whether admitted or not, plaintiffs’

exhibit 64 had, in fact, been taken to the jury room, this Court concludes that the trial

court did not abuse its discretion when it refused to grant a new trial to the appellants.

Therefore, the appellants’ point of error six is overruled.

The judgment is affirmed.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.