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City of Keller v. Wilson

Court of Appeals of Texas, Second District, Fort Worth
Jun 22, 2006
No. 02-00-183-CV (Tex. App. Jun. 22, 2006)

Summary

stating that a court will not construe a statute in a way that makes it meaningless

Summary of this case from Opinion No. GA-0484

Opinion

No. 02-00-183-CV

Delivered: June 22, 2006.

Appeal from the 96th District Court of Tarrant County.

Panel A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ. CAYCE, C.J. filed a dissenting opinion.



OPINION ON REMAND


I. INTRODUCTION

The Texas Supreme Court remanded this case to us after rendering judgment that no evidence existed to support the intent element of the inverse condemnation found by the jury. On remand, we address the City's seventh issue asserting that the evidence is legally and factually insufficient to support the jury's finding that the City "diverted the natural flow of surface water in a manner that damaged" the Wilson property.

The jury found for the Wilsons on both of their causes of action — inverse condemnation and water code violations — and the Wilsons elected to recover on their inverse condemnation claim. On original submission, we addressed all of the issues raised by all of the parties, except of course, we did not address the City's seventh issue challenging the jury's surface water finding because we had upheld the jury's inverse condemnation finding. See City of Keller v. Wilson, 86 S.W.3d 693, 709 (Tex.App.-Fort Worth 2002), rev'd, 168 S.W.3d 802 (Tex. 2005). We now address that issue.

II. FACTUAL BACKGROUND

The Wilson property is located southeast of the Oak Run and Rancho Serena subdivisions. A piece of land owned by A.T. Sebastian lies between the Wilson property and the subdivisions. In 1991, before the Oak Run and Rancho Serena subdivisions were built, the City approved a Master Drainage Plan requiring it in part to condemn a 2.8-acre drainage easement on the Wilson property for construction of an earthen channel forty-five feet wide and five feet deep that would funnel water from the adjoining Sebastian property over the Wilson property into the Little Bear Creek Watershed. This Master Drainage Plan was never revised, nor was a new Master Drainage Plan ever approved by the City. Nonetheless, when the Oak Run and Rancho Serena subdivisions were built, the City chose not to build, or to require developers to build, the portion of the City's Master Drainage Plan running across the Wilson property; it required the portion of the Plan upstream from the Wilson property to be built, and it required the portion of the Plan downstream from the Wilson property to be built, but it left the connecting piece of the Plan unbuilt. The portion of the forty-five feet wide, five feet deep earthen drainage channel that was actually built ended at the edge of the Sebastian property and funneled water directly onto the Wilsons' land, destroying eight acres of farmland worth almost $300,000.

III. STANDARDS OF REVIEW

A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence"Points of Error, 38 TEX. L. REV. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998).

IV. TEXAS WATER CODE

Pursuant to Texas Water Code section 11.086, a property owner can recover for damages to her property attributable to the diversion or impoundment of surface waters by another. TEX. WATER CODE ANN. § 11.086(a), (b) (Vernon 2000). The elements of the statutory cause of action are (1) a diversion or impoundment of surface water (2) that causes (3) damage to the property of the plaintiff landowner. Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978), disapproved of in part on other grounds by Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 n. 78 (Tex. 2004). Surface water is that which is diffused over the ground from falling rains or melting snows, and it continues to be such until it reaches some bed or channel in which such water is accustomed to flow. See Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex.App.-Houston [14th] 2003, no pet.); Stoner v. City of Dallas, 392 S.W.2d 910, 912 (Tex.Civ.App.-Dallas 1965, writ ref'd n.r.e.).

In its seventh issue, the City challenges the legal and factual sufficiency of the evidence to support the jury's finding that the City "diverted the natural flow of surface water in a manner that damaged" the Wilson property. In its brief, the City limits its evidentiary attack to the evidence establishing the "natural flow of surface water" portion of the jury's finding; it does not challenge and makes no arguments concerning the "diversion" or "damage" aspects of the jury's finding. 1. The Transformative Effect of the Easement Argument

Following the supreme court's remand of this case to us, we declined to permit the filing of additional briefs by either party. See TEX. R. APP. P. 38.7.

The City premises its legal and factual sufficiency argument on the definition of surface water, and it urges us to rule that the water contained in the easement cannot be surface water because surface water loses its characterization as such whenever it is touched by the hands of man. See Mitchell v. Blomdahl, 730 S.W.2d 791, 792 (Tex.App.-Austin 1987, writ ref'd n.r.e.). Because the easement itself is a man-made structure, the City argues that any water in it cannot be considered surface water. According to the City, it therefore cannot be found to have damaged the Wilson property with surface water and cannot be held liable under section 11.086 of the Texas Water Code.

Section 11.086 provides in pertinent part:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

TEX. WATER CODE ANN. § 11.086 (emphasis added). The City argues that "water" in subsection (b) refers back to "surface water" and that therefore the damage referenced in subsection (b) must have been be caused by "surface water" for liability to attach. But the statute clearly speaks of diversion and impoundment of "surface water" and of damage and injury caused by "water." Our primary goal in interpreting a statute is to ascertain and to effectuate the legislature's intent. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). In doing so, we begin with the statute's plain language before resorting to rules of construction. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). We begin with the plain language because we assume that the legislature attempted to say what it meant; therefore, the statute's words should be the surest guide to the legislature's intent. Fitzgerald, 996 S.W.2d at 866.

Through its intentional word choice in water code section 11.086, the legislature recognized that the "surface water" diverted or impounded would simply be "water" by the time it caused damage to the property of another. Had the legislature intended to require the diverted or impounded "water" damaging the property of another to still be "surface water," it could have said so. We note, however, that if section 11.086 had been drafted as the City contends we should interpret it — requiring the diverted or impounded "water" damaging the property of another to still be "surface water" — no recovery would ever be possible under section 11.086 because the very actions of impounding and diverting would transform surface water, the chief characteristic of which being its inability to maintain its identity and existence as a body of water, into plain water. See Dalon v. City of DeSoto, 852 S.W.2d 530, 538-39 (Tex.App.-Dallas 1992, writ denied); see also Fairfield Estates v. Griffin, 986 S.W.2d 719, 722 (Tex.App.-Eastland 1999, no pet.). We will not construe a statute in a manner contrary to its plain language, in a way that is meaningless, or in a way that its application is contrary to its purpose. See Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994) (both holding that when an appellate court construes a statute the purpose must be to give effect to the legislature's intent); Raines v. Sugg, 930 S.W.2d 912, 913 (Tex.App.-Fort Worth 1996, no writ) ("[I]f a statute is subject to two interpretations, it should not be given one that would render enforcement impossible.") (citing Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991)). Thus, contrary to the City's interpretation, the fact that the contact with the easement itself may strip surface water of its character as such does not mean that no liability can attach under section 11.086 when downstream properties are damaged as a result of diversion of that water. Because the Wilsons were not statutorily required to prove that the diverted surface water maintained its classification as surface water when it damaged their property, we cannot hold the evidence insufficient to establish this fact.

2. Rooftops Argument

The City also argues that since water travels over rooftops, driveways, roads, and gutters, all man-made structures, before it reaches the easement, the water entering the easement is no longer surface water and section 11.086 is therefore inapplicable. However, the jury was instructed that surface water "is defined as that which is defused [sic] over ground from falling rains and melting snows and continues to be such until it reaches some bed or channel in which water is accustomed to flow." The definition contained in the jury instruction clearly does not conform to the legal standard the City asks us to apply. Under the definition the jury had to work with, rainwater's contact with man-made objects does nothing to alter its character as surface water.

The City filed three separate Requests for Special Issues, none of which addressed how surface water should be defined for the jury; the City did not submit a requested definition of surface water. Nor did the City object to the definition of surface water provided in the court's charge. Any complaint to a jury charge is waived unless specifically included in an objection. TEX. R. CIV. P. 274 (requiring an objection to a definition to avoid waiver); TEX. R. APP. P. 33.1(a)(1). A party must make the trial court aware of the charge complaint, timely and plainly, and obtain a ruling. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003), cert. denied by Dossey v. Tex. Dep't of Protective Regulatory Servs., 541 U.S. 945 (2004); State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Because the City did not bring to the trial court's attention that it was applying an allegedly incomplete definition of surface water, the City cannot now complain of that definition. In the absence of an objection, the sufficiency of the evidence is measured against the statement of law contained in the charge, even if it is defective. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001) (stating that an assessment of the evidence "must be made in light of the jury charge that the district court gave without objection"); see also Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 447 (Tex. 1993); Household Credit Servs., Inc. v. Driscol, 989 S.W.2d 72, 88 (Tex.App.-El Paso 1998, pet. denied).

The evidence establishes that the purpose of the City's Master Drainage Plan was to provide for removal of run-off water resulting from a 100-year rain event; that is, to remove excess water diffused over the ground from falling rains. The evidence likewise shows that both upstream subdivisions diverted this water diffused over ground from falling rains into the easement. No evidence to the contrary exists. We therefore hold that legally and factually sufficient evidence exists that the waters entering the easement satisfied the charge's definition of surface water.

3. Easement as Bed or Channel Argument

The City's final argument on the legal and factual sufficiency of the water code finding involves the characterization of the easement as a bed or channel in which water is accustomed to flow. The City argues that because water historically flowed on the land occupied by the easement, no water contained in the easement can be considered surface water. Again, the jury was instructed that surface water is "that which is defused [sic] over ground from falling rains and melting snows and continues to be such until it reaches some bed or channel in which water is accustomed to flow."

There is ample evidence in the record that prior to construction of the subdivisions and the easement, surface water from the land on which the subdivisions are situated collected on and flowed across the land on which the easement was constructed. Water had historically entered into this ditch or channel on the Sebastian property and continued through a ditch that cuts through the Wilson property. The easement was constructed to follow the same path as that ditch or channel.

However, there is also evidence that prior to the construction of the subdivisions, the ditch that began on the Sebastian property and ran through the Wilson property was accustomed to carry only about fifty-five cubic feet of water per second after a two-year storm. After the subdivisions and easement were constructed, ninety-three cubic feet of water per second was directed across the Wilson property after a two-year storm. We believe that the jury could have properly concluded, based on this evidence and the jury instruction before it, that the excess water was not accustomed to flow in the particular bed or channel over which the easement was constructed and thus the City should be held responsible for damage caused by the City's taking control of and diverting that excess water by way of the easement. We hold that diversion of surface water into a bed or channel in which that water would not otherwise flow does not strip that surface water of its character as such. See Stoner, 392 S.W.2d at 912 ("Surface water ceases to be such when it enters a water course in which it is accustomed to flow.") (emphasis added); see also Dietrich, 123 S.W.3d at 422-23 (Brister, J., dissenting) (noting that "a lower estate" is not obliged to receive surface waters as they normally flow from an upper estate "if they have been channeled by the hand of man").

The testimony regarding the change in volume of water that was directed across the Wilson property amounts to more than a scintilla of evidence on the question of whether the City diverted surface water into the easement in which it was not accustomed to flow and is therefore legally sufficient. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). An assertion that the evidence is insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza, 395 S.W.2d at 823. We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp., 971 S.W.2d at 406-07. The City presented no evidence to counter the Wilsons' assertion that there was an increase in water speed and volume across their property; in fact, the City's Director of Public Works, Michael Barnes, specifically testified that the removal of trees and vegetation from land causes water on the land to run faster and that trees and vegetation were intentionally removed from the earthen channel built up to the edge of the Wilson property so that the water in the channel would flow more smoothly. Because no contrary evidence exists, and because the evidence that the Wilsons presented was not so weak that the jury's finding that the City is responsible for diverting surface water should not be set aside, we hold that the evidence is factually sufficient to support the jury's finding on the water code violation.

We also note that this result is supported by sound policy considerations. To sustain the City's issues and refuse to make the City liable would be to allow landowners to dump excessive amounts of surface water of which they have taken control into any natural waterway without threat of liability for damage to downstream properties. See Jefferson County Drainage Dist. No. 6 v. Langham, 124 Tex. 167, 76 S.W.2d 484, 488 (1934) (holding that a landowner may divert surface waters into a natural waterway, but only those surface waters that would naturally drain to that waterway and only in ways that do not unreasonably burden lower neighbors); Coleman v. Wright, 155 S.W.2d 382, 383 (Tex.App.-Waco 1941, no writ) ("We recognize the right of an owner of land to collect the surface water and the natural drainage of his land into ditches, drains, or artificial streams, and discharge the same into a natural water course on his land where the same is a natural outlet of the water so collected, provided the discharge is not beyond the natural capacity of the water course.") (emphasis added); Rattan v. Woods, 267 S.W. 312, 313 (Tex.Civ.App.-Texarkana 1924, no writ) (finding that an upper landowner may not, by the use of artificial means, divert into a natural water course surface water that would naturally flow elsewhere in a way that injures a lower landowner). We hold that legally and factually sufficient evidence exists supporting the jury's finding that the City "diverted the natural flow of surface water" in a manner that damaged the Wilson property. We overrule the City's seventh issue.

V. DISSENT'S DISCUSSION OF ARGUMENTS NOT MADE BY THE CITY

On appeal, the City expressly limited its legal sufficiency challenge to only the "natural flow of surface water" element of the water code violation theory of recovery submitted to the jury in special question number one. While we are required to liberally construe the parties' issues and briefs, we are not permitted to fabricate arguments for one party. See Tex.R.App.P. 38.9; Aluminum Chems., Inc. v. Bechtel Corp., 28 S.W.3d 64, 68 (Tex.App.-Texarkana 2000, no pet.) ("It is not the proper function of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised."). When an appellant's legal and factual sufficiency challenge to an affirmative jury finding is limited to one element of the theory of recovery, we are not required to sua sponte generate arguments as to how the evidence might be insufficient on all of the other, unmentioned elements of the theory of recovery. See, e.g., Taylor Elect. Servs., Inc. v. Armstrong Elect. Supply Co., 167 S.W.3d 522, 527-28 (Tex.App.-Fort Worth 2005, no pet.) (limiting sufficiency analysis to evidence supporting two fraud elements challenged by the appellant); Int'l Piping Sys., Ltd. v. M.M. White Assocs., Inc., 831 S.W.2d 444, 448 (Tex.App.-Houston [14th] 1992, writ denied) (recognizing jury's affirmative answer to question number one constituted finding that agreement existed and that defendant breached it but holding that, because appellant challenged only sufficiency of the evidence supporting first element, appellate court need not "review the question of sufficiency as to breach of the agreement"), disapproved of in part on other grounds by Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 950 S.W.2d 371, 373 (Tex. 1997); John Hill Cayce, Jr., Anne Gardner Felicia Harris Kyle, Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 BAYLOR L. REV. 867, 957 (1997) ("There are distinct requirements for arguments challenging the sufficiency of the evidence. . . . A sufficiency of the evidence argument is adequate if it contains a discussion of the applicable standard of review and explains why the evidence does or does not meet the standard in the context of the pertinent legal theory.") (emphasis added). Here, the City does not explain, dispute, or even mention any evidence showing that the City did or did not divert the natural flow of surface water in the context of the water code violation theory. We have liberally construed the City's brief, teasing out what amounts to a few paragraphs into three separate surface water arguments, and we have fully addressed those. We decline, however, to create — as the dissent does — sufficiency arguments for the City concerning elements of the jury's finding that were expressly not challenged by the City; such arguments were never made, briefed, or argued by the City. See Tex.R.App.P. 38.1(h) (requiring that for an issue to be properly before this court, the issue must be supported by argument and authorities). Thus, the issue of whether the City, as opposed to some other entity or person, diverted the natural flow of surface water — the issue discussed by the dissent — is not properly before us.

The City's brief sets forth jury question number one and then states,

This question [special question one] was predicated upon § 11.086, Texas Water Code. As has been discussed in this Brief (P. 23-26), § 11.086 applies only to "the natural flow of surface water." The City has discussed in detail that the Permanent Drainage Easement did not involve a diversion of "the natural flow of surface water." Id. In order to avoid redundancy and to save time and space, the City incorporates its arguments set forth on pages 23-26 of this brief as if set out at length. As a matter of law, as the "natural flow of surface waters" was not involved in this case, Plaintiffs may not recover on their § 11.086, Texas Water Code, claim.

Pages twenty-three through twenty-six of the City's brief challenge only the "natural flow of surface water" aspect of the Wilsons' water code theory submitted to the jury. The City frames its argument on these pages as "the applicable legal principles hinge on whether the water allegedly flowing onto another's property constituted surface water as defined by § 11.086."

Nor does the City anywhere in its brief conduct a review of the evidence on this element of the Wilsons' water code theory of recovery.

City of Arlington v. State Farm Lloyds, cited by the dissent, involved an appellant's failure to include record references to support a sufficiency challenge. 145 S.W.3d 165, 167 (Tex. 2004). We agree with the dissent that we must review the entire record to determine a sufficiency challenge that is made by the parties — which we have done — but we disagree that City of Arlington requires us to create sufficiency arguments concerning unchallenged aspects of a jury's finding. In fact, in City of Arlington, the City expressly challenged only two aspects of the jury's inverse condemnation finding: (1) that State Farm had put forward no evidence that the City acted with the requisite intent to support a takings claim; and (2) that State Farm had put forward no evidence that "the property [was] taken for, or applied to, a public use." Id. The supreme court nowhere held that we were required to address the other unchallenged aspects of the jury's takings finding.

Although, as discussed above, the City expressly limited its challenge to the "natural flow of surface water" element of the Wilsons' water code violation theory, in the interests of justice, in light of the dissenting opinion, and to expedite any further appeals or remands in this case, we point out that the jury's unchallenged finding that the City diverted the surface water is an element of the Wilsons' water code theory that was not contested at trial. Mr. Barnes, the City's Director of Public Works, testified that the City has water drainage requirements for developments inside the City and that the requirements include that the developers comply with the Master Drainage Plan. The City would not have approved the developments unless the developers purchased the Sebastian easement for the City. Once the easement was purchased for the City, the City supervised, controlled, and approved the excavation on its easement. The City likewise maintained the easement, including the earthen channel, after its construction. The evidence thus conclusively established the City's ownership of, and control over, the easement and the construction of the earthen channel on the easement, including control over the diversion of the natural flow of surface water through the earthen channel that occurred as a result. No evidence exists that any entity other than the City ever owned or controlled the work on the earthen channel at any time, from the date the first shovel of dirt was removed to construct it through trial. Thus, applying the legal and factual sufficiency standards of review set forth above, were this issue before us, we would conclude that the evidence supports the jury's finding that the City — the owner of the earthen channel and the entity that controlled every aspect of the channel's construction — diverted the natural flow of surface water.

Indeed, the City never raised this argument at trial; it was raised for the first time in a motion for new trial.

The facts of this case are set forth extensively in our prior opinion, City of Keller, 86 S.W.3d at 712.

VI. CONCLUSION

Because legally and factually sufficient evidence exists to support the jury's water code violation finding, we affirm the trial court's judgment based on this theory of liability.


DISSENTING OPINION

I respectfully dissent. In its seventh issue, the City of Keller challenges the legal and factual sufficiency of the evidence to support the jury's finding that the City "diverted the natural flow of surface water in a manner that damaged the property of the plaintiffs." The majority concludes that the evidence is sufficient to support the finding that the natural flow of surface water was diverted by the City. In reaching this conclusion, however, the majority considers only the testimony of the City's Director of Public Works, Michael Barnes, about the ownership of the Sebastian easement, the City's approval of the developers' drainage plans, and the City inspectors' approval of the developers' excavation work. The majority does not consider any of the uncontroverted evidence establishing that the surface water was, in fact, diverted by the developers and not the City.

Issue No. 7 is worded as follows:

Whether the affirmative response to Jury Question No. 1 that the City of Keller diverted the natural flow of surface water in a manner to damage the property of Plaintiffs is supported by legally or factually sufficient evidence.

The Supreme Court of Texas has held that when reviewing a verdict for legal sufficiency we must consider all the evidence, "crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore." When this scope of review is properly applied here, it is clear that there is no evidence in the record establishing a diversion of surface water by the City. Instead, the record conclusively establishes that the natural flow of the surface water was diverted by the developers.

City of Keller v. Wilson, 168 S.W.3d 802, 807, 827, 830 (Tex. 2005).

By properly applying this scope of review, the court would not be fabricating or creating sufficiency arguments for the City as the majority claims. When a complete absence of evidence to support a jury finding is alleged, as here, the Supreme Court of Texas has held that we "must include the entire record within [our] scope of review." City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 167-68 (Tex. 2004) ; see City of Keller, 168 S.W.3d at 827, 830. We do not make arguments for the parties by performing this duty.

It is undisputed that the channel was designed and constructed by engineers and contractors hired by the developers. The City did no more than review the developers' plans to make sure that they satisfied the City's "master drainage plan" and inspect the developers' excavation work to make sure the channel was built in accordance with the developers' plans. In Barnes's own words,

Barnes testified that the drainage channel was constructed by a "contractor" engaged by "the developer" after the City approved the plans submitted by the developers and gave the developers permission to perform the work.

The master drainage plan was prepared by Knowlton, English Flowers Consulting Engineers, a private engineering firm. The same engineering firm also reviewed and recommended approval of the developers' plans. Barnes described the master plan as follows:

The master plan is a general overall guide for how drainage is going to be treated. It can be altered — or an alignment can be altered so long as it meets the guidelines and carries the water to a specific point.

The developer submitted plans, and we approved the plans, and then [the City] had inspectors on the job to make sure that [the excavation work] was done according to the plans.

According to City Manager Lyle Dresher, once the City approved the developers' plans, the construction of the channel became "the hundred percent responsibility of the developers." Only after the channel was built did the City take over responsibility for its maintenance.

The evidence on which the majority contends the jury supposedly relied in answering Question No. 1 — the City's ownership of the easement where the channel was constructed, the City's approval of the developers' plans, and the fact that the City had inspectors on site to insure that the developers' contractor built the channel in accordance with those plans — does not establish that the City "diverted the natural flow of surface water" or that it controlled the diversion of the water by the developers. At most, all this evidence proves is that the City permitted the diversion and allowed it to continue. Although the Wilsons could have sought recovery under the water code against any person for permitting the diversion to continue, they did not pursue this theory of recovery against the City.

Section 11.086 of the water code provides, in pertinent part,

No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

TEX. WATER CODE ANN. § 11.086(a) (Vernon 2000) (emphasis supplied).

Question No. 1 only asked the jury the following:

Do you find that the City of Keller diverted the natural flow of surface water in a manner that damaged the property of the Plaintiff?

The Wilsons did not request the submission of an issue on the question of whether the City violated the water code by permitting the diversion by the developers.

Because there is no evidence that a reasonable juror could believe to support the finding that the City diverted the natural flow of surface water, and because there is contrary evidence that could not be ignored by the jury conclusively establishing that it was the developers who diverted the water that damaged the Wilsons' property, I would reverse the judgment of the trial court and remand the case for a new trial on the Wilsons' water code claim against the City. I, therefore, dissent.

We would be required to remand for a new trial rather than render judgment for the City because the City raised its no evidence point only in its motion for new trial. See Werner v. Colwell, 909 S.W.2d 866, 870 n. 1 (Tex. 1995); Horrocks v. Tex. Dep't of Transp., 852 S.W.2d 498, 498-99 (Tex. 1993) (both holding that an appellate court cannot reverse and render on a legal sufficiency point raised only in a motion for new trial because a new trial is all the relief the appellant requested in the trial court); see also TEX. R. APP. P. 43.2(c) (providing that court of appeals must render the judgment that the trial court should have rendered).


Summaries of

City of Keller v. Wilson

Court of Appeals of Texas, Second District, Fort Worth
Jun 22, 2006
No. 02-00-183-CV (Tex. App. Jun. 22, 2006)

stating that a court will not construe a statute in a way that makes it meaningless

Summary of this case from Opinion No. GA-0484
Case details for

City of Keller v. Wilson

Case Details

Full title:THE CITY OF KELLER, Appellant, v. JOHN W. WILSON, GRACE S. WILSON, JOHNNY…

Court:Court of Appeals of Texas, Second District, Fort Worth

Date published: Jun 22, 2006

Citations

No. 02-00-183-CV (Tex. App. Jun. 22, 2006)

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