Bernard J. Morello v. Enterprise Crude Pipeline, LLC

Affirmed and Memorandum Opinion filed December 5, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00839-CV

BERNARD J. MORELLO, Appellant
V.
ENTERPRISE CRUDE PIPELINE, LLC, Appellee

On Appeal from the County Court at Law #4
Fort Bend County, Texas
Trial Court Cause No. 14-CCV-052822

MEMORANDUM OPINION

The trial court granted appellee Enterprise Crude Pipeline, LLC’s motion for
no-evidence summary judgment, in which Enterprise argued that appellant Bernard
J. Morello had no evidence of damages in this condemnation proceeding. On
appeal, Morello contends that the trial court erred in striking his expert witness and
report. Because we conclude that Morello did not challenge all independent
grounds that could support the trial court’s ruling, we overrule Morello’s issues
and affirm the trial court’s judgment.
Background

Enterprise, a common carrier, filed an eminent domain suit against Morello.
The special commissioners issued an award of $22,820.00 in damages, to which
Morello timely objected in the trial court.1

On September 26, 2022, the trial court issued a docket control order,
requiring the parties to designate all experts and produce all expert reports by
October 26, 2022, and to designate all rebuttal experts and produce all rebuttal
expert reports by November 29, 2022.

On January 24, 2023, Morello filed a supplemental discovery response,
designating James Archibald as an expert. Enterprise moved to strike and exclude
Archibald as an expert witness, arguing that (1) Rule of Civil Procedure 193.6
mandates that a witness must be excluded if not timely designated 2 and
(2) Archibald’s expert opinion on value is unreliable and therefore inadmissible.

1
The procedure for condemning public property is prescribed in sections 21.012 through
21.016 of the Property Code. See Tex. Prop. Code § 21.011. If the entity with eminent domain
authority cannot agree with the property owner regarding the amount of damages, it must file a
petition in the proper court. The judge of the court must then appoint three disinterested real
property owners who reside in the county as special commissioners to assess the damages of the
property owner. Id. § 21.014(a). The special commissioners must conduct a hearing to assess
damages. Id. § 21.015(a). A party to a condemnation proceeding may object to the findings of
the special commissioners by filing a written statement of the objections and their grounds with
the court that has jurisdiction of the proceeding. Id. § 21.018(a).
2
The rule provides:
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or
supplement a discovery response, including a required disclosure, in a timely
manner may not introduce in evidence the material or information that was not
timely disclosed, or offer the testimony of a witness (other than a named party)
who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement
the discovery response; or

2
The trial court granted Enterprise’s motion to strike in its entirety, struck
Morello’s designation of Archibald as an expert witness, and excluded all
testimony from Archibald and/or all opinions and testimony from any witness
based on Archibald’s untimely expert report.

Enterprise then moved for no-evidence summary judgment, contending that
Morello had no evidence of his damages in the eminent domain proceeding.3
Morello did not file a response. The trial court granted Enterprise’s motion for no-
evidence summary judgment.

Morello appeals.

Analysis

In two related issues, Morello challenges the trial court’s ruling striking and
excluding Archibald and his expert report. Morello’s brief is exclusively focused
on the reliability of Archibald’s expert opinion because, in Morello’s opinion, that
is the basis for the trial court’s exclusionary ruling, not the untimeliness of
Morello’s designation:

While the trial court’s ORDER STRIKING AND EXCLUDING
Archibald as Morello’s expert makes reference to Archibald’s
“untimely expert report,” it is clear that trial court “struck and
excluded” Archibald and his Appraisal Report based upon
Plaintiff/Enterprise’s Daubert/Robinson Motion that sought to exclude
Archibald’s opinion and Appraisal Report of Archibald because his
“opinion is unreliable and inadmissible,” that the “valuation
methodology used by Archibald is improper,” and that “Archibald’s
‘per rod’ valuation for a pipeline corridor is improper.”

(2) the failure to timely make, amend, or supplement the discovery response
will not unfairly surprise or unfairly prejudice the other parties.
Tex. R. Civ. P. 193.6(a).
3
See State v. Walker, 441 S.W.2d 168, 170 (Tex. 1969) (in condemnation proceeding, the
burden of proving damages is the landowner’s).

3
We do not agree with Morello’s reading of the order. Enterprise moved to
exclude Archibald’s testimony on two separate and independent bases:
(1) procedurally, because it was untimely designated under Rule 193.6; and
(2) substantively, because it was unreliable. The trial court’s order granting
Enterprise’s motion “in its entirety” does not specify the ground or grounds on
which it ruled.

When a trial court issues an adverse ruling without specifying its grounds for
doing so, the appellant must challenge each independent ground asserted by the
appellee supporting the adverse ruling because it is presumed that the trial court
considered all of the asserted grounds. See Vo v. Iyer, No. 14-18-01051-CV, 2020
WL 3698032, at *2 (Tex. App.—Houston [14th Dist.] July 7, 2020, no pet.) (mem.
op.); Buttler v. Sutcliffe, No. 02-15-00319-CV, 2016 WL 4491224, at *7 (Tex.
App.—Fort Worth Aug. 26, 2016, no pet.) (mem. op.); U.S. Lawns, Inc. v. Castillo,
347 S.W.3d 844, 846-47 (Tex. App.—Corpus Christi–Edinburg 2011, pet. denied).
If the appellant fails to challenge all possible grounds, we must accept the validity
of the unchallenged grounds and affirm the adverse ruling. Vo, 2020 WL 3698032,
at *2; Buttler, 2016 WL 4491224, at *7; U.S. Lawns, 347 S.W.3d at 847; see also
Midway Nat’l Bank v. W. Tex. Wholesale Supply Co., 453 S.W.2d 460, 460-61
(Tex. 1970) (per curiam) (affirming judgment where appellant failed to attack
independent legal conclusion that “fully supported” judgment).

Morello was required to challenge on appeal each ground asserted by
Enterprise in its motion to strike. Because Morello does not challenge both
independent grounds that support the trial court’s ruling, we cannot say that the
trial court abused its discretion by striking and excluding Archibald’s expert report
and testimony. See, e.g., Vo, 2020 WL 3698032, at *2.

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Further, Morello does not challenge in any respect Enterprise’s motion for
no-evidence summary judgment, to which he did not respond. He concedes that,
“[w]ith the trial court’s striking of Defendant/Morello’s expert witness, his
opinions and Appraisal Report, Morello was without any expert evidence to proffer
to carry his required burden to defeat Plaintiff/Enterprise’s No-Evidence Motion
for Summary Judgment.” We conclude that Morello has not shown reversible
error in this appeal. See Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 793 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“Generally, a failure to respond to a
no-evidence motion is fatal to the nonmovant’s ability to assert on appeal that the
trial court erred in granting the motion.”); Tex. R. Civ. P. 166a(i)) (“[T]he court
must grant the motion [for no-evidence summary judgment] unless the respondent
produces summary judgment evidence raising a genuine issue of material fact.”).

We overrule Morello’s two issues.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

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