Full Opinion

Opinion issued October 9, 2026. In the Court of Appeals for the First District of Texas ———————————— NO. 01-22-00827-CV ——————————— JASON ALEXANDER, JOE MCADAMS, ELIAS ABRAHAM, LAWRENCE ANDERSON, LISA ASTIN, JORGE ATENCIO, DAVID AYRE, DOUGLAS AUSTIN, JAMES BARCLIFT, MARTIN BENSON, MARIA BLACKWELL, THOMAS BOEHME, CHRISTOPHER BOYER, SCOTT CALL, ORLANDO CAMARILLO, STEPHEN CAPPS, CARLOS AREVALO-GARZA, GEORGE COBB, TERESA CONRAD, JIMMY CRANE, LEE DAVIS, DUSTIN DE LOS SANTOS, JAMES DIEMER, LAWRENCE DIO, ROBERT DIXON, TIMOTHY DIXON, DWAYNE DUKE, DARLENE DYMOND, DAVID EIDSMOE, MARTIN DURAND, DEAN CORBETT, HILARY ELGART, WILLIAM EVANS, CESAR HERNANDEZ GOMEZ, DEAN FANGUY, WOLFGANG FAUST, SONYA FLOWERS, GREG FOLKS, MITCH FUENTES, ROGELIO GAMIZ, ROBERTO GARCIA-HOOKES, RONALD GILCREASE, RAUL GIORGI, MICHAEL GIOVINAZZO, ARCHIE GREGORY, SALLY GRIFFIN, DREW GOODBREAD, HECTOR GUIZAR-BLANCO, KENNETH HAYEK, LARRY HEIGHINGTON, PAUL HEIMLICH, FERNANDO HESS, DONALD HICKEY, PATRICK HOLUB, SETH HOVER, MICHAEL HOWARD, ALEXIS HURST, COSME IGLESIAS, JOHN HARRIS, KERRY HOELLER, SEAN IRBY, TRACY JACKSON, DAVID KANDT, DEBRA KING, KENNETH LAUDUCCI, JOSEPH LOCKE, CARLOS LOPEZ, TAMMY FOSTER, DAVID MA, JACOB MAGIN, HARALD PAULI, MATTHEW MARTIN, LESLIE MARTINEZ, MCWILLIAM MALAVE, GAIL MANISCALCO, PAUL MARSTON, DALLIS LINDLEY, JAMES MARTIN, GABOR MARQUEZ, BLAKE HARRIGAN, KEVIN REINOSO, ANTHONY PADILLA, KONRAD IZBINSKI, TORSTEN SCHMIDT, ROBERT MCCARTHY, LUCIO ELIZONDO, CHRISTOPHER MCKEE, CALEB MCLAUGHLIN, GLENN MCMILLEN, VIVEKANAD SISTA, JEFF MOSS, WENDELL CLEAVER, RISELEA MCLEROY, JASON MILESKI, ROBERTO OLIVAS, RANDY MOORMAN, JAMES MUELLER, PATRICIA NOACK, MATTHEW NOVAK, DAVID ODORIZZI, TRAVIS THOMAS, JERE BRUBAKER, JEREMY OEHMEN, STAN OKAZAKI, NGIABI GICUHI, BERNARD OTTEN, RICARDO PALMA, OSCAR MUNOZ PAZ, OLGA PERRY, GEORGIE PETERSEN, PENNY PRATER, GERARDO RAMIREZ, TIMOTHY RENNIE, DAGOBERTO MORA, MICHAEL RICHEY, KATHLEEN RIZZO, RICHARD ROACH, LUIS MARROQUIN ESPINOSA, KAZEM SALEHIAN, ARTHUR SALERNO, HARDY BAKER, SUSAN SARAZEN, MARC CRUDGINGTON, CLINTON SCOTT, JAMES SEAMANS, ESTEBAN SEANEZ, SAUL SELLINGER, TIMOTHY SERRANO, ROY SLAY, MARIUS DOYLE, TIMOTHY SMITH, MIRZA BAIG, EDGARDO RAMOS-TENORIO, JAMES SOEDER, JOSEPH MCGAUGH, EDWARD STOWE, JOSEPH EFFERT, ERIC TABANOU, RILEY ARCHER, AVINASH TAWARE, CHRISTOPHER BACK, BLYTHE THOMAS, LAKIA CHAMPAGNE, WILLIAM THOMPSON, ANIL PALASAMUDRAM, LEO TEPLITSKILY, JEREMY TRAVIS, LUIS HESS, TIMOTHY LEE, TIBBS FAMILY TRUST, TIMOTHY VAN OOST, CAROLINA GARCIA, THILO VOSS, DAVID MINOR, JERRY WEBB, DEBRA WHITLA, THOMAS WOJAHN, TIMOTHY YANAVAGE, YOUNG LEE, MANUEL ABREU VARGAS, JOSEPH XIE, FERNANDO ZAVALA, ALEX ZENGO, WALTER FENTON, KENNETH BECK, JASON BRADEN, RICHARD BUKOVICH, KRISHNANAND ANANDAN, GREGORY BURKHART, THOMAS BARLOW, LENWOOD BORDELON, TOMMY DRAKE, TIMARRON LAKES COMMUNITY ASSOCIATION, STEVEN CALKINS, CALEB VARIO, ROBERT CAPPADONA, DEYSE NORWITZ, ELIAS CHIRICO, MIRIAM DE DIEGO ANITUA, RANDALL CRIMMINS, KIMBERLEE DYER, GEORGE GARNER, LUANN INGRAM, MORGAN 2 GARTNER, JOSEPH LONG, FRANKLIN HALTER, JONATHAN HANEY, KATHLEEN HERR, LUIS CORDOBA, KAREN CLARKE, MICHAEL JONES, SCOTT FAIRLEY, ALEX IRVINE, RAVINDRA JOSHI, MICHAEL YNOSENCIO, DEEPESH KAUSHISH, HAYWARD KELLEY, MARK CRAWFORD, WADE KHOURY, EDWARD WOLF, WILLIAM WOOD, VICTOR WILLIAMS, WILLIAM LAINHART, STEVEN RESNICK, MARCO SANCHEZ, CHARLES MART, BRUCE SMITH, CAROLYN STUBER TRUST, J. JESUS MORENO TROUSSELLE, KHANG NGUYEN, JOHN WADELLA, TERESA NOLAND, LARRY WARD, PAUL PEDLAR, SCOTT TOWNSEND, LUIS CORONA, MORRIS REINISCH, MICHAEL LONG, CHRIS REICHARDT, CORY MOORE, CHRIS STAVINOHA, MARC BEAUCHAMP, BRUCE HOOK, KEITH WINTERS, JOSEPH WITCRAFT, MATHEW VALICEVIC, MICHAEL FISCHER, JACINTO SOLIS, RICARDO RAMIREZ, PATRICK MCCORMACK, STEVEN IRION, SHAWNA ALEXANDER, MARISA ANDERSON, BRAD ASTIN, PAOLA MORON FERNANDEZ, LUZ MARIA AYRE, MARYELLEN AUSTIN, CYNTHIA BARCLIFT, GEORGETTE BENSON, JETTE BOEHME, KIMBERLY CALL, RUBI CAMARILLO, FRANCES M. CAPPS, ALEJANDRA SOFIA CARDENAS-MARTINEZ, SHARON CROSS, DEBRA H. CRANE, ANDREA DE LOS SANTOS, MAUREEN R. DIEMER, SUSAN W. DIO, DEBRA DIXON, SUSAN R. DIXON, KIMBERLY DUKE, KELLY EIDSMOE, MARIA CORINA DURAND, KAREN CORBETT, MARIA FERNANDA ROSIQUE FLOTA, BRIDGET FANGUY, CHRISTINE JASCHINSKI, BETH FOLKS, DAWN FUENTES, VANESSA GAMIZ, PAMELA GARCIA-HOOKES, SANDRA GILCREASE, ANNA GIORGI, TAMI GIOVINAZZO, KATHLEEN E. GREGORY, DONNA GOODBREAD, CARMEN MUNOZ-DIEGO, JENNIFER HAYEK, MAUREEN HEIGHINGTON, BONNIE S. HEIMLICH, ROSA HESS, ELIZABETH HICKEY, KAY HOLUB, LINDSEY HOVER, LEIGH HOWARD, NATHAN HURST, SHANNON IRBY, GABRIELA JACKSON, BRENDA KANDT, DEBORAH LAUDUCCI, LIZZETH MORALES, VI NGUYEN, LORI MAGIN, HELENE PAULI, AND ALICIA MARTIN, Appellants v. THE WOODLANDS LAND DEVELOPMENT COMPANY L.P., THE 3 HOWARD HUGHES CORPORATION, LJA ENGINEERING, INC. F/K/A LJA ENGINEERING & SURVEYING, INC., AND JAMES R. BOWLES, Appellees On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2018-36108 MEMORANDUM OPINION1 Appellants2 challenge the trial court’s grant of summary judgment in favor of appellees—The Woodlands Land Development Company L.P., the Howard Hughes 1 Appellants filed a motion for rehearing and a motion for rehearing en banc of this Court’s December 16, 2025 opinion and judgment. We withdraw our December 16, 2025 opinion and judgment and issue this opinion and judgment in their place. Our disposition remains the same. We deny appellants’ motion for rehearing en banc as moot. See Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (noting that motion for en banc reconsideration rendered moot by withdrawal and reissuance of opinion and judgment). 2 We do not list appellants by name in the body of the opinion because of their large number. By our memorandum order of September 26, 2023, the appeal was dismissed for want of jurisdiction on The Woodlands Land Development Company and Howard Hughes’s “Agreed Motion to Dismiss Non-Appellants from Appeal” as to the claims brought by the following individuals: Dotty McAdams, Jeff Benton, Randy Deaton, Hope DuBois, Patricia Harmon, Cheryl Ann Harland, Tim Huber, David Jupp, John Abright, William Batson, Felix Kleiman, David Lozano, Julio Mayagoitia, Earl McDonald, Jorge Gonzalez, Richard Morar, Elliot Pederson, Michael Mize, Jeremy Tinker, Clayton Repka, Jeffrey Shinsato, Robert McRae, Catherine Dunaway, Ollie Verchow, Benito Tagle, Brian Welp, Matthew Derganc, Marcos Varona, Trevor Taggart, Robert Bivens, Robert Perez Bobadilla, Elda Calhoon, Joan Flowers, Frank Gore, Kent Tarou, John Hoffman, Johanna LaChance, Maureen McMullan, Scott Nylund, Yan Wang Order, Paul Dosescu, Francisco Cano Onate, David Williams, Jessica Benton, Karen A. Deaton, 4 Corporation (Howard Hughes), LJA Engineering, Inc., formerly known as LJA Engineering & Surveying, Inc. (LJA Engineering), and James R. Bowles—in their suit against appellees for negligence, gross negligence, and negligent undertaking.3 In four issues, appellants contend that the trial court erred in granting appellees summary judgment. We affirm. Background In their seventh amended petition, appellants alleged that they owned homes in a residential subdivision known as “Timarron” in The Woodlands, Texas. According to appellants, the subdivision was bordered on its northern and western sides by Spring Creek, a tributary to the West Fork of the San Jacinto River. Appellants further alleged that in October 1994, “a catastrophic rainstorm hit” the Houston, Texas area, “dropp[ing] between 20 and 30 inches of rain throughout . . . [the] northern portions of Harris County,” Texas and “causing historic flooding.” “[I]n the vicinity of the Timarron area, the October 1994 flood Lawrence Harmon, Yadira Gonzalez, Sarah Huber, Amber Michelle Abright, and Amber M. Batson. See TEX. R. APP. P. 42.1(a)(2). 3 Appellants also brought claims for violations of the Texas Deceptive Trade Practices Act (DTPA) against The Woodlands Land Development Company and Howard Hughes, but appellants do not challenge on appeal the trial court’s grant of summary judgment in favor of The Woodlands Land Development Company and Howard Hughes on appellants’ DTPA claims. Thus, such claims will not be addressed in this opinion. See TEX. R. APP. P. 47.1. 5 was estimated to have reached flood levels at or about a 500-year flood event.” (Emphasis omitted.) According to appellants, The Woodlands Land Development Company and LJA Engineering knew about the “[p]roblems with flooding” in Timarron, including the flooding related to the October 1994 storm. After the October 1994 storm, The Woodlands Land Development Company and Howard Hughes began to design and develop Timarron. “Timarron was built in stages or sections,” and “[a]ll sections [were] built outside of or beyond the 100-year floodplain with some portions needing to be filled with dirt in order to be elevated so as to be above the 100-year flood levels.” Appellants, however, alleged that “many of these sections remained within the 500-year floodplain, despite the fact that th[o]se areas flooded in the October 1994 flood.” And according to appellants, The Woodlands Land Development Company and Howard Hughes knowingly built sections of Timarron in the 500-year floodplain; they “did not develop and build [Timarron] in a manner that put properties outside of, or above, the 500-year floodplain to reduce the likelihood of flooding.” Appellants further alleged that in planning Timarron, The Woodlands Land Development Company and Howard Hughes “set a standard[] policy and criteria for determining the minimum elevation of a house relative to its geographic location and that location’s risk of flooding by stating that all house slabs shall be at least 6 inches above the October 1994 flood . . . , which . . . was at or above the 500-year 6 floodplain level in the area.” (Emphasis omitted.) That information was provided to LJA Engineering and Bowles, who “then prepared plans showing th[at] minimum elevation for each of the homes to be built near Spring Creek” by home builders. But appellants alleged that the information given by The Woodlands Land Development Company and Howard Hughes to home builders in Timarron related to “setting the minimum slab elevations of the[] homes was about 1-foot lower than both the October 1994 flood level and the 500-year floodplain level.” Ultimately, “[t]he lots . . . were not elevated to prevent them from flooding during a 500-year flood event, nor were the streets elevated to make them . . . passable during such an event.” According to appellants, in August 2017, Hurricane Harvey “dumped about 25 inches of rain over the Spring Creek watershed upstream of Timarron over a 4-day period.” “This was about the same amount of rain that fell during the October 1994 flood and [it] produced slightly lower flood levels along Spring Creek than . . . the October 1994 storm [did].” Appellants also alleged that they owned homes in Timarron that flooded during Hurricane Harvey, which caused appellants to be “displaced from their homes and . . . endure[] months and years of costly repairs and rebuilding.” And they alleged that The Woodlands Land Development Company and Howard Hughes “made errors by instructing home builders to set their slabs for all or some of the homes in Timarron at an elevation that was unreasonably low for the elevation of 7 the land it was built on” and was below “the standard [that The Woodlands Land Development Company and Howard Hughes] had set.” According to appellants, The Woodlands Land Development Company and Howard Hughes “knew or should have known to have the houses built at an elevation adequate to prevent the likelihood of flooding” based on information “from previous flooding in th[e] area,” such as the flooding from the October 1994 storm. Appellants brought claims against appellees for negligence, gross negligence, and negligent undertaking. As to their negligence and gross negligence claims against The Woodlands Land Development Company and Howard Hughes, appellants alleged that The Woodlands Land Development Company and Howard Hughes owed duties of care to appellants and breached their duties by: • Developing Timarron in a manner that cause[d] lots and homes to flood during a foreseeable weather event; • Instructing home builders to set minimum slab elevations much lower than the standard set by The Woodlands Land Development Company and Howard Hughes; • Failing to use ordinary care in setting minimum slab elevations for homes to be built in [Timarron]; and • Failing to use ordinary care in monitoring and overseeing that the home builders built to the minimum slab elevation standards, per the terms of their contract with the builders. 8 Appellants also alleged that the acts or omissions of The Woodlands Land Development Company and Howard Hughes proximately caused their injuries and damages. Further, appellants asserted that the conduct of The Woodlands Land Development Company and Howard Hughes, when viewed from the standpoint of the actors at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. And the conduct demonstrated an attitude of conscious indifference for the rights, safety, and welfare of others and showed that The Woodlands Land Development Company and Howard Hughes had actual and subjective awareness of the dangers of such conduct. Because The Woodlands Land Development Company and Howard Hughes “proceeded with a conscious indifference to the rights, safety, and welfare of others, including [appellants],” appellants asserted that The Woodlands Land Development Company and Howard Hughes were liable to appellants for exemplary damages. As to their negligent undertaking claims against The Woodlands Land Development Company and Howard Hughes, appellants alleged “[a]n additional duty” to appellants was created when The Woodlands Land Development Company and Howard Hughes “sought to dictate slab elevations within [Timarron].” According to appellants, The Woodlands Land Development Company and Howard Hughes, “undertook to dictate minimum slab elevations for all homes built [in 9 Timarron]” and “the[] slab elevations were dictated for the sole purpose of protecting the property of [appellants], specifically the homes built in a development located in an area known to be subject to flood hazards.” Further, The Woodlands Land Development Company and Howard Hughes “failed to exercise reasonable care in dictating the[] slab elevations by failing to check the elevations against historical flood data in [their] possession of which [they] knew or should have known, and by failing to monitor or oversee that home builders actually built to the specified elevations.” Appellants alleged that they relied on The Woodlands Land Development Company and Howard Hughes to develop Timarron in a manner safe from reasonably foreseeable flooding. According to appellants, “[b]y developing in an area known to be subject to foreseeable flooding without exercising reasonable care in dictating minimum slab elevations,” The Woodlands Land Development Company and Howard Hughes increased appellants’ risk of harm. The “negligent development” by The Woodlands Land Development Company and Howard Hughes “was the proximate cause of and/or contributed to the harm suffered by [appellants] during a foreseeable flooding event.” As to their negligence and gross negligence claims against LJA Engineering and Bowles, appellants alleged that LJA Engineering and Bowles owed duties of care to appellants and LJA Engineering and Bowles breached their duties by: • Failing to use ordinary care in the analysis, design, and engineering of [Timarron]; 10 • Failing to use ordinary care in setting minimum slab elevations for homes to be built in [Timarron]; and • Other acts deemed negligent and grossly negligent. Appellants also alleged that the acts or omissions of LJA Engineering and Bowles were a proximate cause of appellants’ injuries and damages. Further, appellants alleged that the conduct of LJA Engineering and Bowles, when viewed from the standpoint of the actors at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. And their conduct demonstrated an attitude of conscious indifference for the rights, safety, and welfare of others and showed that LJA Engineering and Bowles had actual and subjective awareness of the dangers of such conduct. Because LJA Engineering and Bowles “proceeded with a conscious indifference to the rights, safety, and welfare of others, including [appellants],” appellants asserted that LJA Engineering and Bowles were liable to appellants for exemplary damages. As to their negligent undertaking claims against LJA Engineering and Bowles, appellants alleged that “[a]n additional duty to [appellants] on the part of [LJA Engineering and Bowles] was created when [they] sought to analyze, design, and engineer the subdivision, the storm water management systems, and the minimum slab elevations for homes built” in Timarron. Specifically, LJA Engineering and Bowles “undertook to analyze, design, and engineer [Timarron], the storm water 11 management systems, and the minimum slab elevations for homes to be built” in Timarron, and “the[] undertakings were set for the ultimate purpose of protecting the property of [appellants], specifically the homes built in a development located in an area known to be subject to flood hazards.” According to appellants, LJA Engineering and Bowles failed to exercise reasonable care in analyzing, designing, and engineering Timarron, the storm water management system, and the minimum slab elevations for the homes to be built in Timarron by failing to properly apply historical flood data of which they knew or should have known. Appellants relied on LJA Engineering and Bowles “to analyze, design, and engineer [Timarron], the storm water management system, and the minimum slab elevations for homes to be built” in Timarron “in a manner safe from reasonably foreseeable flooding,” and by failing to exercise reasonable care in performing their services, LJA Engineering and Bowles increased appellants’ risk of harm. The negligent analysis, design, and engineering by LJA Engineering and Bowles was the proximate cause of and/or contributed to the harm suffered by appellants during a foreseeable flooding event. Appellees answered,4 generally denying the allegations in appellants’ petition and asserting certain affirmative defenses, including estoppel. Appellees then filed multiple summary judgment motions related to appellants’ claims against them. 4 The Woodlands Land Development Company and Howard Hughes filed a joint answer, and LJA Engineering and Bowles filed a joint answer. 12 Howard Hughes moved for summary judgment, arguing that it was entitled to judgment as a matter of law on appellants’ negligence, gross negligence, and negligent undertaking claims against it because it was not involved in the development of Timarron, either directly or indirectly. According to Howard Hughes, it acquired an ownership interest in The Woodlands Land Development Company after Timarron was platted and was simply the parent company of The Woodlands Land Development Company at the time appellants filed suit. Further, appellants had not alleged a theory of indirect liability against Howard Hughes, such as alter ego or piercing the corporate veil. Howard Hughes asserted that it was entitled to summary judgment because no evidence existed to support the elements of appellants’ negligence, gross negligence, and negligent undertaking claims against it. For example, according to Howard Hughes, appellants could not establish the elements of duty or breach against Howard Hughes or “the additional elements for gross negligence.” Additionally, even if appellants had evidence of duty and breach related to Howard Hughes, there was no evidence that Howard Hughes was the proximate cause of appellants’ damages. Thus, Howard Hughes asserted that it was entitled to summary judgment 13 on appellants’ claims against it on matter-of-law grounds as well as no-evidence grounds.5 In their response to Howard Hughes’s summary judgment motion, appellants argued that Howard Hughes was not entitled to judgment as a matter of law on their claims for negligence, gross negligence, and negligent undertaking because Howard Hughes did not “conclusively establish that [it] was not involved.” Instead, the deposition testimony of Welbes established that “when the decision was made to develop Timarron,” Howard Hughes “was an owner” of The Woodlands Land Development Company, and “by 2016, [The Woodlands Land Development Company] was 100 percent owned” by Howard Hughes. Further, appellants asserted that the email which Howard Hughes had attached to its summary judgment motion conflicted with the deposition testimony of Welbes, and according to appellants, it did not matter that Howard Hughes “did not have any ownership control of [The Woodlands Land Development Company] at the time the flooded properties . . . were platted” because the “platting of a subdivision occurs well before the design and development of the subdivision and the setting of the slab elevations 5 Howard Hughes attached to its summary judgment motion a copy of the transcript from the depositions of Tim Welbes, an employee of Howard Hughes and co-president of The Woodlands Land Development Company, as well as the copy of an email, stating that Howard Hughes “did not have any ownership control of [The Woodlands Land Development Company] at the time the flooded properties . . . were platted.” 14 for homes being built in the subdivision.” Further, appellants argued that the no-evidence portion of Howard Hughes’s summary judgment motion should be denied because there was more than a scintilla of evidence that Howard Hughes was involved in the development of Timarron.6 In its reply to appellants’ response, Howard Hughes reiterated that it did not develop Timarron, it was not involved in the development of Timarron, and appellants had not asserted a theory of indirect liability against Howard Hughes. Further, none of the evidence cited by appellants in their response showed that Howard Hughes was involved in the actual development activities about which appellants complained, namely, the allegedly negligent determination of minimum slab elevations for the homes on appellants’ properties. Thus, because appellants could not establish that Howard Hughes was involved in the development activities about which appellants complained, appellants could not establish any element of their negligence, gross negligence, or negligent undertaking claims. According to Howard Hughes, appellants were required to “have evidence indicating that [Howard Hughes] itself engaged in some conduct that subject[ed] it to liability,” and they “ha[d] none.” 6 Among other things, appellants attached to their response a copy of the transcript from Welbes’s deposition. 15 The trial court granted Howard Hughes summary judgment on appellants’ negligence, gross negligence, and negligent undertaking claims against it. Next, The Woodlands Land Development Company, LJA Engineering, and Bowles7 moved for summary judgment on appellants’ negligence, gross negligence, and negligent undertaking claims against them, asserting that they were entitled to judgment as a matter of law. In their motion, The Woodlands Land Development Company, LJA Engineering, and Bowles explained that appellants were homeowners in Timarron, a subdivision that flooded during Hurricane Harvey. The Woodlands Land Development Company “began the process of developing” Timarron by “taking large tracks of raw land” and “dividing them into smaller (but still large) areas, called sections; platting and obtaining government approval for those platted sections, with specific streets and lots laid out; and causing the streets and major utilities to be constructed.” (Internal footnote omitted.) During development, The Woodlands Land Development Company contracted with LJA Engineering “to perform platting and other engineering work in connection with” Timarron. 7 Before The Woodlands Land Development Company, LJA Engineering, and Bowles filed this summary judgment motion, the trial court granted Howard Hughes’s summary judgment motion, dismissing appellants’ claims against Howard Hughes. But The Woodlands Land Development Company, LJA Engineering, and Bowles noted in their motion that, if Howard Hughes was “still a party [in the suit],” the arguments in their summary judgment motion “would apply to it too.” 16 The summary judgment motion further explained that during the development of Timarron, The Woodlands Land Development Company “met all [of] Harris County[’s] regulatory standards in place at the time, including a requirement that structures in the 100-year floodplain be built 18 inches above the 100-year floodplain.” (Emphasis omitted.) The Woodlands Land Development Company ultimately decided to recommend that third-party builders build their houses in Timarron “six inches above the flood of record level” from the October 1994 storm. To determine the “flood of record level,” The Woodlands Land Development Company hired a third-party engineering firm, IDS Engineering Group, Inc., formerly known as Pate Engineers, Inc. (Pate).8 Pate’s flood of record level determination was then given to LJA Engineering “to set minimum slab elevations of 6 inches above the 1994 [October storm] flood of record level as determined by” Pate. It was The Woodlands Land Development Company’s goal to “recommend minimum slab elevations six inches above the 1994 [October storm] flood of record,” as determined by Pate, which is exactly what it did. Appellants, however, alleged that Pate incorrectly determined the flood of record level, which resulted in the slabs on appellants’ properties not actually being 8 The summary judgment motion noted that appellants’ expert witness agreed that Pate was “a well-recognized good reputation engineering firm,” which was “well-respected” and “d[id] capable quality work.” (Internal quotations omitted.) 17 built six inches above the 1994 October storm flood of record level. And this is what appellants alleged caused the flooding of their properties. In their summary judgment motion, The Woodlands Land Development Company, LJA Engineering, and Bowles also explained that appellants bought their properties directly from various third-party builders.9 Appellants did not buy their properties from The Woodlands Land Development Company, The Woodlands Land Development Company did not have any role in appellants’ transactions with the builders, appellants had no contracts with The Woodlands Land Development Company, and appellants admitted that they did not rely on anything that The Woodlands Land Development Company had said when deciding to purchase their properties. Further, although The Woodlands Land Development Company developed Timarron “as a whole, laying out and building streets and major infrastructure,” The Woodlands Land Development Company “then subdivided and sold the properties—vacant lots—to the [various third-party] builders.” The Woodlands Land Development Company did not build any of appellants’ houses. Instead, the third-party builders “made final decisions on—and had ultimate authority over—fill, lot grading, design, and construction, including [the] construction of the slabs and finished floor elevations” for appellants’ properties. In 9 The summary judgment motion identifies the builders and explains that the builders, and not The Woodlands Land Development Company, LJA Engineering, or Bowles, contracted with appellants to build appellants’ houses. 18 short, The Woodlands Land Development Company did not construct the slabs for appellants’ houses and did not determine “the final lot grading or slab heights for any of [appellants’] propert[ies].” As to LJA Engineering and Bowles, the summary judgment motion additionally explained that neither LJA Engineering nor Bowles was involved in appellants’ purchases of their properties or with the building of appellants’ homes. And LJA Engineering and Bowles “did not determine the final lot grading or slab heights for any [of appellants’] propert[ies].” According to The Woodlands Land Development Company, LJA Engineering, and Bowles, they were entitled to summary judgment as a matter of law on appellants’ negligence, gross negligence, and negligent undertaking claims because appellants could not establish that The Woodlands Land Development Company, LJA Engineering, and Bowles owed a duty to appellants for purposes of appellants’ negligence and gross negligence claims; appellants could not meet the requirements of imposing “a duty where none exist[ed] for purposes of” appellants’ negligent undertaking claims; and even if a duty existed, The Woodlands Land Development Company, LJA Engineering, and Bowles did not breach that duty as a matter of law. More specifically, as to any negligence duty, the summary judgment motion explained that Texas law had not recognized a duty like the one appellants sought to 19 impose in this case. And it explained that whether a defendant owed a duty to a plaintiff “depends on several factors, including risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on the defendant.” (Internal quotations omitted.) Further, the nature of the relationship between the plaintiff and the defendant is a significant consideration in determining the existence of a duty of care. According to The Woodlands Land Development Company, LJA Engineering, and Bowles, none of the factors to be considered in determining whether to impose a new legal duty warranted imposing a duty on them. First, The Woodlands Land Development Company, LJA Engineering, and Bowles had no relationship with appellants, and Hurricane Harvey was an unprecedented storm, which could not be foreseen. Further, the risk of a Hurricane-Harvey-like event was low, and the probability of injury was low “when balanced against the social utility of [The Woodlands Land Development Company, LJA Engineering, and Bowles] complying with existing [regulatory] standards, which [was] what they did.” And the “magnitude or burden would be great if [The Woodlands Land Development Company, LJA Engineering, and Bowles] had to undertake ultimate responsibility and authority for construction of slab heights that would guard against unforeseeable floods (usurping this from the [third-party] builder[s] to whom [the properties were 20 already sold]).” Additionally, “placing the burden on [The Woodlands Land Development Company, LJA Engineering, and Bowles] would result in highly undesirable consequences—namely, forcing [them] to undertake unrealistic and cost-prohibitive oversight of builders’ construction of slabs.” Thus, there was “no basis to impose upon [The Woodlands Land Development Company, LJA Engineering, and Bowles] a duty owed toward downstream purchasers in negligence.” The Woodlands Land Development Company, LJA Engineering, and Bowles argued that they were also entitled to summary judgment as a matter of law on appellants’ negligent undertaking claims. They asserted that to establish their claims for negligent undertaking, appellants had to show that The Woodlands Land Development Company, LJA Engineering, and Bowles undertook, gratuitously or for consideration, to render services to another that they knew or should have known were necessary for the protection of a third person; [they] failed to exercise reasonable care to perform the undertaking; and [] (a) the failure to exercise reasonable care increase[d] the risk of such harm; (b) [they] undert[ook] to perform a duty owed by the other to the third person; or (c) the harm [was] suffered because of reliance of the other or the third person upon the undertaking. (Emphasis omitted.) The Woodlands Land Development Company, LJA Engineering, and Bowles asserted that to the extent appellants were arguing that The Woodlands Land Development Company, LJA Engineering, and Bowles undertook, gratuitously or 21 for consideration, to render services to another that they knew or should have known were necessary for the protection of a third person “by commissioning a study regarding flood of record levels (or even that they gave recommendations of minimum slab elevations based on flood of record levels),” there was no evidence that they had “undert[aken] to oversee the construction of slab heights or [had] precluded the [third-party] builders from exceeding any slab height recommendations.” Rather, it was the builders who were responsible for the slab heights on appellants’ properties. They argued that, even if they owed a duty, at most their duty would have been to develop the subdivision in a manner that complied with all regulatory standards which they undisputedly did. And, even if they owed a duty to exercise reasonable care in their undertaking to determine the flood of record level and recommend that minimum slab heights be built six inches above it, they fulfilled this duty as well. They were entitled to rely on Pate’s determination of the flood of record level and, to the extent appellants argued that The Woodlands Land Development Company, LJA Engineering, and Bowles should have double checked or independently assessed the accuracy of Pate’s determination, appellants were arguing for an undertaking that The Woodlands Land Development Company, LJA Engineering, and Bowles did not undertake. In their response to the summary judgment motion, appellants argued, as to their negligence claims, that The Woodlands Land Development Company, as the 22 developer of Timarron, owed appellants a duty because “a developer owes an implied warranty to develop its property in a good and workmanlike manner.” As to their negligent undertaking claims, appellants disputed the assertion that the undertaking they alleged was commissioning a study regarding flood of record levels (or giving recommendations of minimum slab elevations based on flood of record levels). Rather, they argued, The Woodlands Land Development Company “undertook to ‘insure that [its] residents and businesses w[ould] not be threatened by flood damage,’” and The Woodlands Land Development Company “undertook [that] by establishing minimum slab elevations of six (6) inches above the [flood of record], that builders were required to meet, so that residents would not be threatened by flood damage from another [flood of record].” According to appellants, The Woodlands Land Development Company breached that undertaking. In their response, appellants stated that they would not address their negligence claims against LJA Engineering because, according to appellants, the summary judgment motion did not address any alleged negligence by LJA Engineering but rather focused solely on The Woodlands Land Development Company. Appellants attached numerous exhibits to their summary judgment response. The Woodlands Land Development Company, LJA Engineering, and Bowles filed objections to some of those exhibits. The trial court sustained the objections. 23 In their reply to appellants’ response, The Woodlands Land Development Company, LJA Engineering, and Bowles asserted that appellants had not directed the trial court to “a single case holding that a developer owe[d] a duty to downstream purchasers.” Further, as to appellants’ negligent undertaking claim, The Woodlands Land Development Company, LJA Engineering, and Bowles asserted that the undertaking in this case was “to hire a third-party engineering firm . . . to determine the 1994 flood of record level and then set minimum slab elevations based on the 1994 flood of record as determined by [the third-party engineering firm],” which is exactly what The Woodlands Land Development Company, LJA Engineering, and Bowles did. They further argued that any attempt by appellants to redefine the undertaking failed. Finally, noting that appellants stated that they would not be addressing the negligence of LJA Engineering, LJA Engineering and Bowles asserted that appellants had waived their arguments as to the propriety of summary judgment on appellants’ claims against LJA Engineering and Bowles. The trial court granted The Woodlands Land Development Company, LJA Engineering, and Bowles’s summary judgment on appellants’ negligence, gross negligence, and negligent undertaking claims.10 10 The Woodlands Land Development Company, LJA Engineering, and Bowles filed additional summary judgment motions on appellants’ negligence, gross negligence, and negligent undertaking claims against them, which raised other arguments as to why they were entitled to summary judgment on appellants’ claims. The trial court also granted those motions for summary judgment. Due to our disposition below, 24 Standard of Review We review a trial court’s sum