Terrie L. Fischer, Kendall Fischer, and Jasmine Fischer v. City Parc @ Keller Apartments
CourtTexas Court of Appeals, 7th District (Amarillo)
Date FiledSeptember 18, 2026
Docket07-26-00133-CV
StatusPublished
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Full Opinion
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00133-CV
TERRIE L. FISCHER, KENDALL FISCHER, AND JASMINE FISCHER, APPELLANTS
V.
CITY PARC @ KELLER APARTMENTS, APPELLEE
On Appeal from County Court at Law Number 3
Tarrant County, Texas
Trial Court No. 2025-002442-3, Honorable Mike Hrabal, Presiding1
September 18, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
Appellants, Terrie L. Fischer, Kendall Fischer, and Jasmine Fischer (the Fischers
unless otherwise designated), proceeding pro se, unsuccessfully sued Appellee, City
Parc @ Keller Apartments, for damages and health issues resulting from mold and water
in their apartment. The trial court granted City Parc’s no-evidence motion for summary
1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court
by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the
event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
judgment and issued a final judgment dismissing all the Fischers’ claims and rendering
they take nothing by their suit. By three issues presented in their original brief, the
Fischers contend the trial court (1) erred in granting City Parc’s no-evidence summary
judgment because they produced more than a scintilla of evidence on each challenged
element, (2) failed to consider competent summary judgment evidence, and (3)
improperly required expert testimony to defeat summary judgment. By their reply brief,2
they belabor their original arguments. We affirm.
BACKGROUND
On February 24, 2023, the Fischers entered into an apartment lease with PBH
PARC, LLC. Several months later, Terrie noticed water damage on her carpet.
The Fischers filed suit on April 1, 2025, asserting damages from mold resulted in
personal injury, property loss, out-of-pocket expenses, mental anguish, and loss of use
of their apartment. On June 6, 2025, the trial court ordered the parties to mediation. The
case was not settled and was set for trial.
After adequate time for discovery had passed and the parties had exchanged
some discovery, City Parc filed a no-evidence motion for summary judgment on January
2, 2026. City Parc alleged the Fischers had failed to designate an expert on causation
and an expert on the presence of mold entitling it to summary judgment as a matter of
law. It also alleged there was no evidence of any of the elements of a breach of contract
claim.
2 The Fischers also address a typographical error in City Parc’s brief regarding the date their notice
of appeal was filed. It is not relevant to disposition of the issues.
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The Fischers responded they had produced competent summary judgment
evidence. Their response included a copy of their apartment lease, a City Code report of
bacterial growth,3 records and expenses of mold remediation, medical records of illnesses
for themselves and Terrie’s grandchildren, photographs, evidence of damages, Terrie’s
affidavit, and unsworn declarations from Kendall and Jasmine. They admitted they were
not offering “expert medical causation opinions” and instead relied on medical records,
photographs, and other evidence. They also alleged expert testimony was not required
to defeat City Parc’s no-evidence motion. And even if expert testimony was required on
some claims, they argue it was not required on all claims and summary judgment was
improper on the remaining claims.
NO-EVIDENCE SUMMARY JUDGMENT
A party may move for a no-evidence summary judgment when, after adequate time
for discovery has passed, there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial. TEX.
R. CIV. P. 166(a)(i).4 The no-evidence motion must state elements of the claim or defense
for which the movant asserts there is no evidence. Id. The trial court must grant the
motion unless the nonmovant produces evidence raising a genuine issue of material fact.
Id.; Helena Chem. Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023). A genuine issue of material
fact is shown by producing “more than a scintilla of evidence establishing the existence
3 The Fort Worth Code Compliance Department inspected the Fischers’ apartment and found it
was in violation of the City’s Code of Ordinance for a water leak and a damaged wall. An inspection
revealed “black bacterial growth in the water closet and in the back bedroom.”
4 Rule 166a was amended and applies to motions for summary judgment filed on or after March 1,
2026. Because this case was decided prior to the amendments, we apply the Rule as it existed before the
changes.
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of the challenged element.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551
(Tex. 2019) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). More
than a scintilla of evidence exists if the evidence “rises to a level that would enable
reasonable and fair-minded people to differ in the conclusions.” Merrell Dow Pharm., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists
when the evidence is so weak as to do no more than create a mere surmise or suspicion
of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
We review summary judgments de novo. Cox, 664 S.W.3d at 72–73 (citing
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In doing so, we
examine the evidence in the light most favorable to the nonmovant, indulging reasonable
inferences and resolving doubts against the movant. Cox, 664 S.W.3d at 73 (citing City
of Keller v. Wilson, 168 S.W.3d 802, 804 (Tex. 2005)).
APPLICABLE LAW
A negligence claim relating to mold exposure is in the nature of a toxic tort claim
which falls outside a lay person’s general knowledge and experience. Cerny v. Marathon
Oil Corp., 480 S.W.3d 612, 620 (Tex. App.—San Antonio 2015, pet. denied). Toxic tort
claims require proof of both “general” and “specific” causation. Havner, 953 S.W.2d at
714; Plunkett v. Connecticut Gen. Life Ins. Co., 285 S.W.3d 106, 120–21 (Tex. App.—
Dallas 2009, pet. denied). General causation addresses whether a substance is “capable
of causing a particular injury or condition in the general population,” while specific
causation addresses whether a substance “caused a particular individual’s injury.” Id. In
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a toxic tort case, the ultimate issue is always specific causation. Bostic v. Georgia-Pacific
Corp., 439 S.W.3d 332, 351 (Tex. 2014).
The general rule has long been that expert testimony is required to establish
causation of medical conditions outside the common knowledge and experience of jurors.
Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). The effects of mold are matters
outside the knowledge of laypersons in toxic tort cases, so causation must be proven
using reliable expert evidence. McNitt v. Lakeline Crossing Phase 2 LP, No. 03-23-
00308-CV, 2025 Tex. App. LEXIS 2927, at *5 (Tex. App.—Austin April 30, 2025, no pet.)
(mem. op.). A medical expert must personally examine a plaintiff to determine with a
reasonable degree of medical probability that mold exposure caused a plaintiff’s health
complaints. Plunkett, 285 S.W.3d at 119. A non-expert’s testimony and affidavit that
mold exposure caused conditions such as nosebleeds is not evidence of causation.
McNitt, 2025 Tex. App. LEXIS 2927, at *6.
ANALYSIS
As the Fischers issues overlap, we will address them simultaneously. They
contend the trial court erred in granting City Parc’s no-evidence motion for summary
judgment because they produced more than a scintilla of evidence to raise a fact issue in
the form of photographs, code enforcement records, remediation records, affidavits,
unsworn declarations, and other evidence, and the trial court misapplied the law by
requiring expert testimony on all their claims. We disagree.
While it may be within general experience that water can cause mold, it is not within
the general experience and common sense of a lay person that exposure to mold causes
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the type of injuries allegedly suffered by the Fischers. Starr v. A.J. Struss & Co., No. 01-
14-00702-CV, 2015 Tex. App. LEXIS 7084, at *19 (Tex. App.—Houston [1st Dist.] July 9,
2015, no pet.) (mem. op.). The Fischers argue that even if expert testimony was required,
dismissal of all claims unrelated to health or medical issues was erroneous. But the same
evidentiary standard applying to personal injury claims applies to property claims. Cox,
664 S.W.3d at 76 (applying the same standard to property damage and personal injury
cases). Thus, expert evidence was required on all their claims.
The Fischers’ failure to present expert testimony was fatal to their case. They
failed to raise a genuine issue of material fact on the element of specific causation.
Sweeney v. Geon Co., No. 01-00-00315-CV, 2002 Tex. App. LEXIS 319, at *12–13 (Tex.
App.—Houston [1st Dist.] Jan. 17, 2002, no pet.) (mem. op.). Without such evidence, the
trial court properly granted City Parc’s no-evidence motion for summary judgment. Issues
one, two, and three are overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough
Justice
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