Patrick Michaelski and Lynda Michaelski v. John Wright, Peggy Wright, Grant Dietz, and Rebecca Dietz ( 2014 )

Opinion issued August 7, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00490-CV
———————————
PATRICK MICHAELSKI AND LYNDA MICHAELSKI, Appellants
V.
JOHN WRIGHT, PEGGY WRIGHT, GRANT DIETZ, AND REBECCA
DIETZ, Appellees
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 09-CV-0786
OPINION ON REHEARING
Appellants, Patrick Michaelski and Lynda Michaelski, filed suit against
appellees, John Wright, Peggy Wright, Grant Dietz, and Rebecca Dietz. The
Michaelskis alleged the Wrights and Dietzes flooded their home on two occasions
by impounding rain water on the Michaelskis’ property and diverting water from
the Wrights’ property onto the Michaelskis’ property. The jury found for the
appellees for both occasions. In three issues on appeal, the Michaelskis argue (1)
the trial court abused its discretion by denying their motion for mistrial, (2) the
evidence established as a matter of law that the Wrights and Dietzes violated the
Texas Water Code, and (3) the evidence is legally and factually insufficient to
support the jury’s finding that no negligence of the Wrights and Dietzes caused
damage to the Michaelskis’ home.
On June 26, 2014, we issued our original opinion in this case. On July 11,
2014, the Michaelskis filed a motion for rehearing and a motion for en banc
reconsideration. We deny the motion for rehearing, withdraw our prior opinion
and judgment, and issue this opinion and a new judgment in their place. 1 Our
disposition remains the same.
We affirm.
Background
Patrick and Lynda Michaelski own a home facing Clear Lake in Clear Lake
Shores, Texas. John and Peggy Wright own a home on the lot to the immediate
south of the Michaelskis. In early 2009, the Wrights hired Carlen Concepts, a
1
Because we have made changes to the opinion, the motion for en banc
reconsideration is denied as moot. See Brookshire Bros., Inc. v. Smith, 176
S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding motion
for en banc reconsideration becomes moot when panel issues new opinion and
judgment).
2
company owned and run by Grant and Rebecca Dietz, to tear down and rebuild
their home. The plans for rebuilding the home involved adding enough fill to the
property to raise the ground by two feet.
On April 18, 2009, the Michaelskis’ neighborhood experienced heavy
rainfall. About eight to ten inches fell in a four to five hour span. The first floor of
the Michaelskis’ home flooded during the rainstorm. On April 24, 2009, the
neighborhood experienced about two inches of rainfall. The Michaelskis allege
that their home flooded again on this date. On June 3, 2009, the neighborhood
received about 0.6 inches of rain. Lynda Michaelski took a video showing water
flowing from the Wrights’ property towards the Michaelskis’ property.
The Michaelskis later filed suit against the Wrights and the Dietzes, alleging,
among other things, negligence and violations of the Texas Water Code. Before
trial, the trial court granted the Michaelski’s motion in limine, requiring the parties
to obtain approval from the court before questioning any witnesses about the
Michaelski’s homeowner’s insurance. There was evidence that Lynda Michaelski
had told her homeowner’s insurance provider that their house was flooded due to
water rising out of the city’s drainage pipes. The trial court acknowledged the
statement had relevance but required the parties to seek permission first before
discussing that statement.
3
On the third day of trial, the Michaelskis offered the testimony of Arnold
“Blu” Shields, a professional contractor and remodeling specialist. Shields
authenticated a document, which was admitted into evidence on the Michaelskis’
request. The document was a summary of Shields’s bid proposal for work to be
done to the Michaelskis’ home. One page of the bid proposal contained the
following line: “Insured: Patrick Michaelski.”
On the fifth day of trial, the Wrights called their expert on water flow and
flooding, Alan Berryhill. A short time into the direct examination, the following
exchange occurred:
Q. Did you review Ms. Michaelski’s statement taken within days
of the storm, both storms?
A. It was a statement that was related to a Nationwide Insurance
claim.
The Michaelskis moved for mistrial and the jury was excused. The Wrights’
attorney told the trial court that he explained multiple times to Berryhill that
insurance could not be specifically mentioned. The Wrights’ attorney also told the
trial court that Berryhill had stated the reference to insurance was inadvertent.
After deliberation, the trial court declared,
I had taken under advisement a Motion for Mistrial trial following
witness Alan Berryhill injecting insurance in violation of the Motion
in Limine. I’m going to respond to that motion by denying the
Motion for Mistrial but will do the following. I’m going to read this
instruction to the jury when they return. “Ladies and gentlemen, I’m
ordering you to disregard the question by Mr. Chandler and answer of
4
Alan Berryhill regarding any statement made by Lynda Michaelski.
Do not consider the question or answer for any purpose whatsoever
during your consideration of this case. The question and answer have
been ordered stricken from the record.” And furthermore as a
sanction, I’m striking Alan Berryhill as a witness in this case.
The jury was brought in and the trial court gave the following instruction:
I’m going to give you the following instruction, which I’m asking you
to please listen to carefully and follow. I am ordering you to disregard
the question by Mr. Chandler and answer of Alan Berryhill regarding
any statement made by Lynda Michaelski. Do not consider the
question or answer for any purpose whatsoever during your
consideration of this case. This question and answer have been
ordered stricken from the record. Thank you.
Also during the trial, the parties disputed the source of water that flooded the
Michaelskis’ home. The Michaelskis presented the testimony of James W.
Gartrell, Jr. as an expert on “engineering issues regarding the determination of the
natural flow of surface water and the alteration thereof.” Gartrell testified that,
before the Wrights raised the elevation of their property in 2009, 80% of the
diffuse surface water that collected in the Michaelskis’ back yard would flow onto
the Wrights’ property and then to a drain pipe beyond the Wrights’ property.
Gartrell testified that, after the Wrights elevated their property, the diffuse surface
water in their back yard became impounded and, in addition, water from the
Wrights’ property also flowed into their back yard. He opined that the
impoundment of diffuse surface water in their back yard, along with the flow of
5
diffuse surface water from the Wrights’ property into the Michaelskis’ back yard,
is what caused the flooding in the Michaelskis’ home on April 18 and April 24.
The Wrights had not moved back into their home at the time of the storms in
question. Rebecca Dietz, who also lives in the neighborhood, went to check on the
Wrights’ house after the rain stopped on April 18. When she was at the Wrights’
property, she saw the Michaelskis at their home. Rebecca Dietz saw water in the
Michaleskis’ garage and saw water bubbling out of the drain bordering between
the Michaelskis’ and Wrights’ yards. She also testified that Patrick Michaelski
“had pointed over to the culvert and was talking about the water bubbling up out of
the catch basin and talked about how the City drain couldn’t handle the water and
all that. It was just a really bad storm.”
Carl Dietz, Grant Deitz’s father, lives on the same street as the Michaelskis,
but at a higher elevation. Carl Dietz testified that Patrick Michaelski brought his
motorcycle over to his house to store shortly after the rain ended on April 18. Carl
Dietz testified that Patrick Michaelski said about the flooding, “It’s not the rain.
It’s the tide that’s got the sewers all clogged up with high tide water and the rain
water you got can’t get away.” Carl Deitz then drove a golf cart down to the
Michaelskis’ property. He testified that Lynda Michaelski was there and told him
about the flooding, “It’s coming up out of the drain and running right in our
6
garage.” Carl Dietz drove around the neighborhood taking pictures of flooding in
various areas, but did not take pictures of the Michaelskis’ or Wrights’ property.
Another dispute concerned whether the rainfall breached the bulkhead along
the portion of the lake across from the Michaelskis’ yard. Rebecca Dietz testified
that the water was over the bulkhead when she went to the Wrights’ property.
Lynda Michaelski testified that the bulkhead had not been breached in the area in
front of their yard, but that the lake had “crested the bulkhead a half a block away.”
Patrick Michaelski testified similarly.
Finally, the parties disputed whether there was a swale or common ditch
between the Michaelski’s property and the Wrights’ property. The Michaelskis
and their expert, Gartrell, testified that they did not see one. The Wrights testified
that they paid the Dietzes to create one and the Dietzes testified that they, in fact,
created it. Furthermore, the video of rainfall that Lynda Michaelski took on June 3
shows water flowing from the Wrights’ property towards the Michaelskis’
property, but then turning along the border between the properties and flowing in
the direction of the swale.
The jury returned a verdict determining that the Wrights and Dietzes did not
violate the Texas Water Code on April 18 or April 24. For the negligence claims,
the jury determined that only the Michaelskis were negligent on April 18. The jury
determined that no one was negligent on April 24.
7
Motion for Mistrial
In their first issue, the Michaelskis argue the trial court abused its discretion
by denying their motion for mistrial.
A. Standard of Review
We review a trial court’s denial of a mistrial under an abuse of discretion
standard. Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811, 815 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied) (citing Till v. Thomas, 10 S.W.3d 730, 734
(Tex. App.—Houston [1st Dist.] 1999, no pet.)). A trial court abuses its discretion
if it acts without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
B. Analysis
Before trial, the trial court granted the Michaelski’s motion in limine,
requiring the parties to obtain approval from the court before questioning any
witnesses about the Michaelski’s homeowner’s insurance. There was evidence that
Lynda Michaelski had told her homeowner’s insurance provider that their house
was flooded due to water rising out of the city’s drainage pipes. The trial court
acknowledged the statement had relevance but required the parties to seek
permission first before discussing that statement.
8
On the fifth day of trial, the Wrights called their expert on water flow and
flooding, Alan Berryhill. A short time into the direct examination, the following
exchange occurred:
Q. Did you review Ms. Michaelski’s statement taken within days
of the storm, both storms?
A. It was a statement that was related to a Nationwide Insurance
claim.
The Michaelskis moved for mistrial and the jury was excused. The Wrights’
attorney told the trial court he explained multiple times to Berryhill that insurance
could not be specifically mentioned and that Berryhill stated the reference to
insurance was inadvertent. After deliberation, the trial court declared,
I had taken under advisement a Motion for Mistrial trial following
witness Alan Berryhill injecting insurance in violation of the Motion
in Limine. I’m going to respond to that motion by denying the
Motion for Mistrial but will do the following. I’m going to read this
instruction to the jury when they return. “Ladies and gentlemen, I’m
ordering you to disregard the question by Mr. Chandler and answer of
Alan Berryhill regarding any statement made by Lynda Michaelski.
Do not consider the question or answer for any purpose whatsoever
during your consideration of this case. The question and answer have
been ordered stricken from the record.” And furthermore as a
sanction, I’m striking Alan Berryhill as a witness in this case.
The jury was brought in and the trial court gave the following instruction:
I’m going to give you the following instruction, which I’m asking you
to please listen to carefully and follow. I am ordering you to disregard
the question by Mr. Chandler and answer of Alan Berryhill regarding
any statement made by Lynda Michaelski. Do not consider the
question or answer for any purpose whatsoever during your
9
consideration of this case. This question and answer have been
ordered stricken from the record. Thank you.
On appeal, the Michaelskis argue that the trial court abused its discretion by
denying their motion for mistrial.
The injection of the issue of insurance into a trial does not automatically
create reversible error. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 708 (Tex.
1989). Rather, a complaining party must establish that the injection of the issue of
insurance was reasonably calculated to cause and probably did cause the rendition
of an improper judgment. Dennis v. Hulse, 362 S.W.2d 308, 310 (Tex. 1962). In
carrying its burden on appeal, the appellant must overcome the presumption that
the jury followed the trial court’s instructions. See Taylor v. Am. Fabritech, Inc.,
132 S.W.3d 613, 625 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(holding “[w]e presume, absent evidence to the contrary, that the jury followed
such an instruction” to disregard mention of insurance).
The Michaelskis recognize in their brief that “[u]nder ordinary
circumstances, the injection of insurance into a trial does not automatically create
reversible error.” They argue, however, that there is an exception to this rule and
that they fit within the exception. In support of this argument, the Michaelskis rely
on Socony Mobil Oil Co. v. Taylor, 388 F.2d 586 (5th Cir. 1967) and Atchison,
Topeka & Santa Fe Ry. Co. v. Acosta, 435 S.W.2d 539 (Tex. Civ. App.—Houston
[1st Dist.] 1968, writ ref’d n.r.e.).
10
In Socony, the trial court injected the topic of insurance into the case by
asking the jurors if they had any association to the insurance industry, and striking
all witnesses who did. 388 F.2d at 588. The trial court’s rationale for this was no
one “connected with the insurance casualty business can be a fair and impartial
juror in any kind of tort case.” Id. The defendant’s counsel objected to the court’s
questions and requested a curative instruction, which the trial court denied. Id.
The Fifth Circuit held, “Suggesting insurance coverage to a jury where there is no
coverage surely places an irrelevant fact before the jury; and, we think, a
prejudicial one.” Id.
In Atchison, the plaintiff’s attorney made repeated reference to the defendant
company having insurance during closing argument. The defendant’s attorney
raised objections, seeking a mistrial or an instruction not to consider insurance in
any way. 435 S.W.3d at 549. The trial court refused both. Id. Instead, the trial
court instructed the jury “that when you consider this case, that you go only by the
court’s charge in governing your deliberation on this case and not any statement
that any attorney might make.” Id. On appeal, this Court recognized that it is error
to disclose to the jury that a defendant has liability insurance. Id. “While not
every casual or inadvertent reference to insurance in the course of a trial will
necessitate a mistrial, where the plaintiff by artful questions attempts to convey to
11
the jury the information that the defendant probably is protected by indemnity
insurance, a mistrial should be declared.” Id.
Both of these cases stand for the proposition that when the topic of insurance
is intentionally presented to the jury with no evidentiary purpose and when there is
not a proper curative instruction from the trial court, then the error is reversible.
See Socony, 388 F.2d at 588; Atchison, 435 S.W.3d at 549. This is consistent with
the proposition that the injection of the issue of insurance into a trial does not
automatically create reversible error. See Babcock, 767 S.W.2d at 708. Neither of
these cases expressly or implicitly announce any exception to this rule. See
Dennis, 362 S.W.2d at 309 (“Respondent argues that the mention of insurance
always requires a reversal of the case, because the error is regarded as incurable.
We do not agree.”)
Here, the trial court gave a curative instruction to the jury to disregard the
statement made by Berryhill. Accordingly, the Michaelskis must overcome the
presumption that the jury followed the trial court’s instruction and must show that
the statement probably caused the rendition of an improper judgment. See id. at
310.
The Michaelskis argue they meet their burden “[g]iven the lack or paucity of
evidence to support the jury’s verdict.” Their argument for this is the same as their
argument in their second and third issues. As we explain below, we hold there is
12
legally and factually sufficient evidence in the record to support the jury’s verdict.
Accordingly, this is not a basis for determining that the jury disregarded the trial
court’s instruction or that the statement caused the rendition of an improper
judgment.
The Michaelskis argue that their burden on appeal is only to show that the
alleged error probably caused the rendition of an improper judgment, a lower
burden than review for legal or factual sufficiency. See id. Even so, if the jury’s
determination is legally and factually sufficient, this establishes there was some
rational basis for that determination. As a result, the jury’s verdict alone cannot
establish that an improper judgment was rendered.
The Michaelskis also argue that the record establishes that the Wrights and
Dietzes “sought repeatedly to inject insurance into the case.” The Michaelskis rely
primarily on questions and testimony concerning whether the Michaelskis’ home
was below the base flood elevation level set by the Federal Emergency
Management Agency. As the Wrights and Dietzes point out, however, all parties
made repeated reference to the base flood elevation level and other matters the
Michaelskis allege constitutes injecting insurance into the case. Moreover, the
Michaelskis fail to identify any point in the record where they objected to these
other alleged references to insurance. See TEX. R. APP. P. 33.1(a) (establishing
prerequisites to presenting complaint for appellate review). If the Michaelskis are
13
correct that these other references constituted references to insurance, then failure
to object to the other references waives any harm for the reference to which the
Michaelskis did object. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897,
907 (Tex. 2004) (holding error in admission of testimony is deemed harmless and
waived if objecting party subsequently permits same or similar evidence to be
introduced without objection).
Similarly, the Wrights and Dietzes point out that the Michaelskis were the
first to introduce explicit evidence of insurance. During the testimony of the
Michaelskis’ witness, Shields, the Michaelskis offered and the trial court admitted
into evidence a summary of Shields’s bid proposal for work to be done to the
Michaelskis’ home. One page of the bid proposal contained the following line:
“Insured: Patrick Michaelski.”
As the Wrights’ attorney pointed out to the trial court, Berryhill’s reference
to insurance was ambiguous. The jury would not be able to determine from the
statement who owned the insurance. As a result, to the degree that the information
could prejudice the jury, the jury would not necessarily know against whom the
information would be prejudicial. In contrast, Shields’s bid proposal specifically
identifies the Michaelskis as the insured parties. To the degree this information
would be prejudicial, the evidence that the Michaelskis put in the record would
have been more prejudicial than Berryhill’s statement.
14
Finally, the Michaelskis argue they were harmed by the trial court’s refusal
to grant a new trial because, after the trial court struck Berryhill as a witness, the
jury was not told Berryhill had been struck and “was left to incorrectly believe that
it could consider the expert’s testimony.” We agree with the Wrights and Dietzes
that the jury could consider Berryhill’s testimony other than the statement
referencing insurance.
The trial court took two actions after Berryhill referenced insurance. First,
the trial court determined that, to cure the statement by Berryhill, it would instruct
the jury to disregard the last question and Berryhill’s answer. Second, it decided to
strike Berryhill as a witness as a sanction. It is clear from the context of the first
action that the trial court meant that, for the second action, Berryhill would not be
permitted to testify any further. Otherwise, there would be no point in instructing
the jury to disregard a specific question and answer as opposed to the whole of his
testimony.
The trial court explained that its second action—striking Berryhill as a
witness—was done as a sanction, not as a further attempt to cure any error
resulting from the reference to insurance. Accordingly, any problems that the
Michaelskis may have had with the trial court’s chosen sanction is not relevant to
whether any harmful error was cured by the trial court’s instruction to disregard the
statement.
15
We hold the trial court did not abuse its discretion by denying the
Michaelskis’ motion for mistrial. We overrule their first issue.
Legal Sufficiency for Section 11.086 of the Texas Water Code Claims
In their second issue, the Michaelskis argue the evidence is legally
insufficient to support the jury’s verdict on their claims based on section 11.086 of
the Texas Water Code.
A. Standard of Review
“The final test for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
performing a legal-sufficiency review, we must credit favorable evidence if
reasonable fact finders could credit it and disregard contrary evidence unless
reasonable fact finders could not disregard it. Id. “If the evidence . . . would
enable reasonable and fair-minded people to differ in their conclusions, then [fact
finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot
substitute its judgment for that of the trier-of-fact, so long as the evidence falls
within this zone of reasonable disagreement.” Id. Although the reviewing court
must consider evidence in the light most favorable to the verdict, and indulge every
reasonable inference that would support the verdict, if the evidence allows only
16
one inference, neither fact finder nor the reviewing court may disregard the
inference. Id.
Appellants attacking the legal sufficiency of an adverse finding on an issue
on which they had the burden of proof must demonstrate that the evidence
conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellants must show that there is
no evidence to support the fact finder’s finding and that the evidence conclusively
establishes the opposite of the finding. See id.
B. Analysis
The Michaelskis alleged the Wrights and Dietzes caused rain water to flood
their house in violation of the Texas Water Code. See TEX. WATER CODE ANN.
§ 11.086(a) (Vernon 2008). Subsection (a) of section 11.086 of the Water Code
provides, “No person may divert or impound the natural flow of surface waters in
this state, or permit a diversion of impounding by him to continue, in a manner that
damages the property of another by the overflow of the water diverted or
impounded.” Id.
“The term surface water, as used in section 11.086, is not defined in the
Water Code, but has been interpreted by Texas courts to mean water ‘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 water is accustomed to
17
flow.’” Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 277 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (quoting Dietrich v. Goodman, 123
S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2003, no pet.)). Diffuse
surface water is distinct from flood waters and from waters entering or following a
defined course or channel. Id. at 278. Floodwaters are waters that have
overflowed a natural water course but remain a continuous part of that original part
of the water course. Id. (citing Valley Forge Ins. Co. v. Hicks Thomas &
Lilienstern, L.L.P., 174 S.W.3d 254, 258 (Tex. App.—Houston [1st Dist.] 2004,
pet. denied)). Waters entering or following a defined course or channel are not
considered diffuse surface water. Id. This includes water in a ditch, a pond, pipes,
or a river. Id. “Thus, a landowner might divert the entire Brazos River across his
neighbor’s property without subjecting himself to liability under Section 11.086 of
the Water Code.” Dietrich, 123 S.W.3d at 419.
In order to recover, then, the Michaelskis were required to prove that the
damage they sustained was the result of diffuse surface water and not flood water
or water from a defined course or channel. See Tex. Woman’s Univ., 221 S.W.3d
at 277. The Michaelskis’ argument to the jury was that, before the Wrights raised
the elevation of their property in 2009, 80% of the diffuse surface water that
collected in their back yard would flow onto the Wrights’ property and then to a
drain pipe beyond the Wrights’ property. The Michaelskis alleged that, after the
18
Wrights elevated their property, the diffuse surface water in their back yard
became impounded and, in addition, water from the Wrights’ property also flowed
into their back yard. The Michaelskis argued that the impoundment of diffuse
surface water in their back yard along with the flow of diffuse surface water from
the Wrights’ property into the Michaelskis’ back yard is what caused the flooding
in their home on April 18 and April 24.
In contrast, the Wrights and Dietzes argued that much of the neighborhood
was flooded on April 18 and that the Michaelskis admitted that it was the
floodwaters that damaged their property on April 18, not impounded or diverted
diffuse surface water. For April 24, they argued the Michaelskis failed to establish
sufficient evidence of flooding or damages from the flooding.
First, we address whether the Michaelskis can recover under their theory that
water entered their back yard from the Wrights’ yard. There was conflicting
evidence about whether there was a swale or “communal ditch” between the
Michaelskis’ property and the Wrights’ property. The Michaelskis and their
expert, Gartrell, testified that they did not see one. The Wrights testified that they
paid the Dietzes to create one, and the Dietzes testified that they, in fact, created it.
Furthermore, video evidence of rainfall on June 3—a little more than one month
after the two dates in question—show water flowing from the Wrights’ property
19
towards the Michaelskis’ property, but then turning along the border between the
properties and flowing along the path of the swale.
Based on this conflicting evidence, the jury could have reasonably
determined that there was a swale or communal ditch between the two properties.
As a result, any water that flowed into this ditch between the two properties
stopped being diffuse ground water. 2 See Tex. Woman’s Univ., 221 S.W.3d at 277.
Accordingly, even if the Michaelskis were damaged by this water, they cannot
recover against the Wrights for this damage under section 11.038 of the Texas
Water Code. See id.
The same is true for any flood waters extending from the communal ditch.
Flood waters extending from a defined watercourse are not recoverable under
section 11.038. See id. The Michaelskis’ only remaining basis for recovery, then,
is if the record establishes as a matter of law that the change to the Wrights’
property impounded water on the Michaelskis’ property that previously had flowed
onto the Wrights’ property and that the impounded water was not a part of the
floodwaters. The Michaelskis argue they established this as a matter of law
because their expert testified that the Michaelskis’ home was flooded by the
2
In their motion for rehearing, the Michaelskis argue that our opinion is in conflict
with Texas Woman’s University v. The Methodist Hospital, 221 S.W.3d 267 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). They request that, if we disagree that
the two opinions are in conflict, we provide further guidance on the distinction
between the two. We provide that guidance below.
20
impounded water and not by any flood waters and because their expert’s testimony
was established as a matter of law.
“The general rule is that opinion testimony, even when uncontroverted, does
not bind the jury unless the subject matter is one for experts alone.” Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex. 1998). A subject
matter is considered one for experts or skilled witnesses alone when “the jury or
court cannot properly be assumed to have or be able to form correct opinions of
their own based upon evidence as a whole and aided by their own experience and
knowledge of the subject of inquiry.” McGalliard v. Kuhlmann, 722 S.W.2d 694,
697 (Tex. 1986).
The Michaelskis argue that Gartrell’s testimony—“engineering issues
regarding the determination of the natural flow of surface water and the alteration
thereof”—is the province of expert testimony alone and that, accordingly,
Gartrell’s testimony was established as a matter of law. Regardless of whether an
expert is required to testify specifically about the natural flow of surface water
based on measurements of elevation, it is not always necessary to have expert
testimony to establish flooding and its causes.
“Generally, lay testimony establishing a sequence of events which provides
a strong, logically traceable connection between the event and the condition is
sufficient proof of causation.” Morgan v. Compugraphic Corp., 675 S.W.2d 729,
21
733 (Tex. 1984). In contrast to what Gartrell testified should have happened with
the diffuse surface water and flood water, there was testimony from multiple
witnesses about what actually did happen with the diffuse surface water and
floodwater. A witness does not need to be an expert to testify about what he or she
observed. See TEX. R. EVID. 701 (permitting lay witness to express opinions and
inferences “rationally based on the perception of the witness”); Morgan, 675
S.W.2d at 733 (“Lay testimony is adequate to prove causation in those cases in
which general experience and common sense will enable a layman to determine,
with reasonable probability, the causal relationship between the event and the
condition.”). Rebecca Dietz testified that she saw the Michaelskis immediately
after the storm on April 18. She saw water in the Michaleskis’ garage and saw
water bubbling out of the drain bordering between the Michaelskis’ and Wrights’
yards. She testified that Patrick Michaelski “had pointed over to the culvert and
was talking about the water bubbling up out of the catch basin and talked about
how the City drain couldn’t handle the water and all that. It was just a really bad
storm.”
Another resident of the neighborhood, Carl Dietz, testified that Patrick
Michaelski brought his motorcycle over to his house to store shortly after the rain
ended on April 18. Carl Dietz testified that Patrick Michaelski said about the
flooding, “It’s not the rain. It’s the tide that’s got the sewers all clogged up with
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high tide water and the rain water you got can’t get away.” Carl Dietz testified that
Lynda Michaelski told him about the flooding, “It’s coming up out of the drain and
running right in our garage.”
All of this testimony contradicts what Gartrell said should have happened
based on his determinations of rainfall, high tide, and wind effects on April 18.
Accordingly, Gartrell’s testimony is contradicted. Because it was contradicted, the
Michaelskis cannot claim that it was established as a matter of law. See Dow
Chem., 46 S.W.3d at 241 (holding party that bore burden of proof at trial must
establish on appeal that no evidence supports fact finder’s finding and that
evidence conclusively establishes opposite of finding). As a result, what caused
the flooding to the Michaelskis’ home on both dates was a question of fact for the
jury to determine. We hold the Michaelskis did not establish as a matter of law
that any impounding of diffuse surface water created as a result of the Wrights’
changes to their property caused the harm the Michaelskis suffered.
In their motion for rehearing, the Michaelskis argue that we have relied on
“Texas Woman’s University for the exact opposite of its holding: surface water is
no longer diffused surface water and becomes flood water once it is partially
diverted by an artificial ‘swale’ so shallow that it is difficult to even perceive.”
23
They ask that, if we disagree with this argument, we provide further guidance on
the distinction between this case and Texas Woman’s University. 3
The source of the Michaelskis’ confusion is their conflation of two distinct
legal theories discussed in Texas Woman’s University concerning when rainwater
loses it designation as diffuse surface water. A claim under section 11.086 of the
Texas Water Code is only actionable if the damages are caused by diffuse surface
water. Tex. Woman’s Univ., 221 S.W.3d at 277. Accordingly, when water ceases
being diffuse surface water is a critical inquiry.
We held in Texas Woman’s University that, “‘[w]hen rainfall is under
control, either by ditches, tanks, ponds, or pipes, it is no longer considered
[diffuse] surface water.’” 4 Id. at 278 (quoting Dalon v. City of DeSoto, 852
S.W.2d 530, 538–39 (Tex. App.—Dallas 1992, writ denied)). We observed that
the record in that case established that the water in question “was never under the
control of a river, stream, ditch, tank, pond, bank, pipe, bed, or channel. Rather . . .
3
The Michaelskis also challenge our holding that their expert’s testimony did not
establish as a matter of law that any diffuse surface water impounded in their back
yard caused them damage. We have sufficiently addressed this matter and do not
address it further.
4
Water joining floodwater is another way for water to lose its designation as diffuse
surface water. Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 279
(Tex. App.—Houston [1st Dist.] 2006, no pet.). “Floodwaters are those which,
generally speaking, have overflowed a river, stream or natural water course and
have formed a continuous body with the water flowing in the ordinary channel.”
Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, L.L.P., 174 S.W.3d 254, 258
(Tex. App.—Houston [1st Dist.] 2004, pet. denied).
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the water was simply rain water running off and moving by gravity.” Id. at 279
(internal quotations omitted). Accordingly, because it did not come under control
of a defined waterway, the water did not lose its designation as diffuse surface
water. See id.
A separate argument that we considered in Texas Woman’s University was
whether the water lost the designation as diffuse surface water because it was
“touched by the hands of man.” Id. at 281. The Methodist Hospital argued that
“once diffuse[] surface water becomes concentrated or channeled by manmade
changes to the natural formation of the land, the water . . . is no longer diffuse[]
surface water and is instead floodwater.” Id. We rejected this argument. Id. We
held that the “untouched by the hands of man” exception was not supported in the
case law and that such an exception would render section 11.06 meaningless. Id.
The Michaelskis are attempting to create a new exception from our rejection
of that exception. In essence, they argue that, because the ditch between their
properties was manmade, water entering into it must remain diffuse surface water.
But this is not what we held in Texas Woman’s University. We held that whether
water has been “touched by human hands” is irrelevant to our analysis. See id. In
contrast, whether diffuse surface water comes under control of a defined waterway
is a critical inquiry. See id. at 277.
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The critical factor in this case to our determination that water coming from
the Wrights’ property to the Michaelskis’ property ceased being diffuse surface
water was that the jury could have reasonably determined that a ditch existed
between the two properties. As a result, water that flowed into this ditch stopped
being diffuse ground water. Id. This is true regardless of whether the ditch was
manmade or naturally existing.
We overrule the Michaelskis’ second issue.
Legal and Factual Sufficiency for Negligence Claims
In their third issue, the Michaelskis argue the evidence is legally and
factually insufficient to support the jury’s finding that no negligence of the Wrights
and Dietzes caused damage to the Michaelskis’ home.
A. Standard of Review
The standard of review for legal sufficiency has been stated above. “When a
party attacks the factual sufficiency of an adverse finding on an issue on which she
has the burden of proof, she must demonstrate on appeal that the adverse finding is
against the great weight and preponderance of the evidence.” Dow Chem., 46
S.W.3d at 242. To determine whether the evidence is factually sufficient to
support a finding, we must consider and weigh all evidence that was before the
trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We can set aside a
verdict only if the evidence is so weak or if the finding is so against the great
26
weight and preponderance of the evidence that it is clearly wrong and unjust. Dow
Chem., 46 S.W.3d at 242.
“However, we remain mindful that the jury is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.” Urista v.
Bed, Bath, & Beyond, Inc., 245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)).
It is the province of the jury to resolve any inconsistencies in the evidence. Id.
B. Analysis
The jury charge asked the jury to determine whose negligence proximately
caused the damage to the Michaelskis’ home. The jury determined that, for the
flooding on April 18, the Michaelskis were the only negligent parties and that each
of them were 50% responsible for the damage to their home. The Michaelskis
argue the evidence is legally and factually insufficient to show that they bore the
responsibility for the flooding in their home on this date.
Even if we accepted this argument, however, the Michaelskis still cannot
prevail. The jury was instructed on acts of God as it pertains to negligence,
describing it as an occurrence “caused directly and exclusively by the violence of
nature, without human intervention or cause, and could not have been prevented by
reasonable foresight or care.” See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429,
432 n.5 (Tex. 2005) (same) (citing COMM. ON PATTERN JURY CHARGES, STATE BAR
27
OF TEX., TEXAS PATTERN JURY CHARGES: GENERAL NEGLIGENCE & INTENTIONAL
PERSONAL TORTS PJC 3.5 (2012)). The jury found that neither the Wrights nor the
Dietzes committed any negligent act that proximately caused the Michaelskis’
harm.
Even if we agreed with the Michaelskis, then, that there was no evidence
that the Michaelskis were negligently responsible for the harm suffered by their
home, this does not refute the evidence that the flooding to their home was an act
of God and not the result of any negligent act committed by the Wrights or the
Dietzes. Accordingly, it does not establish that the jury’s verdict was incorrect as
to the Wrights and Dietzes. See Dow Chem., 46 S.W.3d at 241 (holding party that
bore burden of proof at trial must establish on appeal that no evidence supports fact
finder’s finding and that evidence conclusively establishes opposite of finding);
Smith v. Moody Gardens, Inc., 336 S.W.3d 816, 820 (Tex. App.—Houston [1st
Dist.] 2011, no pet.) (holding unless great weight and preponderance of evidence
shows that plaintiff’s injury was caused in fact by defendant’s breach of duty, we
must uphold the jury’s verdict).
There was testimony in the record that the Michaelskis’ neighborhood
received eight to ten inches of rain in four to five hours on April 18. The
Michaelskis’ property is across the street from Clear Lake, with no houses on the
other side of the street. Rebecca Dietz testified that she saw the waters of Clear
28
Lake breach the bulkhead along the beach across the street from the Michaelskis’
home. Witnesses testified that both Patrick and Lynda Michaelski identified the
source of the flooding in their home as flood waters rising out of the drain pipe.
Photographic evidence of the Michaelskis’ neighborhood showed extensive
flooding in the neighborhood.
We hold that, regardless of whether the jury was correct to determine that
any negligence on the part of the Michaelskis harmed their home on April 18, there
is legally and factually sufficient evidence to support the jury’s finding that no
negligence of the Wrights and Dietzes caused damage to the Michaelskis’ home.
We overrule the Michaelskis’ third issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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