Paul Liles and Bonnie Liles v. Johnny Eisenman ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00185-CV
PAUL LILES AND BONNIE LILES,
Appellant
v.
JOHNNY EISENMAN,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. C09828
MEMORANDUM OPINION
The jury found that Johnny Eisenman, Appellee, did not divert or impound the
natural flow of water on his property in a manner that proximately caused damage to
property owned by Paul Liles and Bonnie Liles, Appellants. Appellants filed a motion
for judgment notwithstanding the verdict. The trial court heard the motion, denied it,
and entered a take-nothing judgment against Appellants.
In their first two issues, Appellants contend that the trial court erred when it
denied their motion for judgment notwithstanding the verdict. Because Appellants have
not met their burden to show that the trial court erred when it denied the motion, we
affirm.
We will first set out the standards for our review. Then, we will detail the evidence
in accordance with those standards and measure that evidence against those standards.
At trial, under the unobjected-to jury charge as given, Appellants bore the burden
to prove that Appellee diverted or impounded the natural flow of water on his property
in a manner that proximately caused damage to their property. As we have noted, when
the jury failed to find for Appellants, they filed their motion for judgment
notwithstanding the verdict and the trial court denied it.
We review the denial of a motion for judgment notwithstanding the verdict under
a legal sufficiency standard. See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828,
830 (Tex. 2009). Under that standard, we will “credit evidence favoring the jury verdict
if reasonable jurors could, and disregard contrary evidence unless reasonable jurors
could not.” Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). We
consider only evidence and inferences that tend to support the findings of the jury;
evidence to the contrary is disregarded. See Mancorp, Inc. v, Culpepper, 802 S.W.2d 226,
227–28 (Tex. 1990). We are obligated to uphold the jury's finding if there is more than a
scintilla of competent evidence to support it. Tanner, 289 S.W.3d at 830. “The final test
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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).
As we apply those standards to the evidence, it is important to note that we are
dealing with two separate ponds that involve two distinct problems and two distinct
damage claims.
Appellee constructed two tanks or ponds on his property. The parties refer to
these as the upper pond and the lower pond.
Appellants claim that the dam for the lower tank constantly leaked onto their
property and caused a condition of persistent mud on a private road on Appellants’
property. Appellants installed a culvert and put rock on the road to alleviate the problem.
But after heavy rains hit the area, water escaped from the lower pond and washed the
rock away. Appellants paid $480 for the rock.
As to the upper pond, Appellants maintain that Appellee constructed a “dam” or
berm above the upper pond and that the “dam” or berm served to divert or redirect the
natural flow of surface water around the pond and onto Appellants’ property.
Appellants contend that eventually, the diverted water resulted in severe erosion along
Appellants’ fence line. Appellants asserted that the erosion resulted in a diminution in
the value of their property in the amount of $25,000.
Liles, et al. v. Eisenman Page 3
Although there are two different ponds with two distinct characteristics and two
different measures of damages, the trial court submitted only one issue to the jury as to
Appellee’s actions and the results of those actions: “Did the Defendant, Johnny Eisenman,
divert or impound the natural flow of water in a manner that proximately caused damage
to the property of the Plaintiffs, Paul Liles and Bonnie Liles?” There were no objections
to the charge. As we have noted, the jury answered the question, “No.”
In their first and second issues on appeal, Appellants argue that the trial court
erred when it denied their motion for judgment notwithstanding the verdict because they
were entitled to strict liability under section 11.086 of the Texas Water Code. Appellants
did not plead that theory and neither did they present that argument to the trial court
either in Appellants’ written motion or during the hearing on that motion. That is
important because it is the trial court’s ruling on that motion that is the focus of this
appeal. Appellants never asked the trial court to rule based upon strict liability under
the Texas Water Code. Instead, Appellants urged the court to find that there was no
evidence beyond a scintilla to support the negative answer of the jury, and, further, that
it had conclusively proved the contrary proposition. Therefore, in our review of the trial
court’s ruling on Appellants’ motion for judgment notwithstanding the verdict, we need
not address strict liability under the Texas Water Code. See Martin v. Cottonwood Creek
Constr., LLC, 560 S.W.3d 759, 763 (Tex. App.—Waco 2018, no pet.).
Liles, et al. v. Eisenman Page 4
We are left, then with a simple negligence cause of action that involves allegations
of improper diversion and impoundment of water. A negligence cause of action has four
elements: (1) a legal duty; (2) breach of that duty; (3) the breach was a proximate cause of
injury; and (4) actual injury. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,
525 (Tex. 1990).
There are two components to proximate cause: (1) but-for causation; and (2)
foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995). Even if we
were to get past the first two elements of a negligence cause of action, there was some
evidence presented to the jury to support a negative finding as to proximate cause.
The jury viewed some 31 exhibits submitted by Appellee. The jury also heard
testimony that damages to Appellants’ property occurred after unusually heavy rainfalls
caused the dam on the lower pond to break. Mr. Liles testified that “he [Mr. Eisenman]
washed it out when his dam busted. I never had no problem with him washing me or
anything else until his dam busted.” There was no redirection of water at the time of
trial.
Further, there is some evidence to show that Appellants’ own actions could have
proximately caused their damages. Appellants performed dirt work that resulted in an
upward slope near Appellants’ property line with Appellee, and they also installed a
culvert that was too small to handle a proper amount of water.
Liles, et al. v. Eisenman Page 5
And to the extent that the evidence conflicts, we emphasize that it was in the
province of the jury to resolve such conflicts. See Wheelbarger v. Landing Council of Co-
Owners, 471 S.W.3d 875, 891 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
Because there was some evidence to support the jury’s negative answer to the
single liability issue submitted to them, the trial court did not err when it denied
Appellants’ motion for judgment notwithstanding the verdict. We overrule Appellants’
first and second issues on appeal.
In their third issue on appeal, Appellants take the position that a new trial is
required on the issue of damages because the jury’s award of no damages is against the
greater weight and preponderance of the evidence as to be clearly wrong and unjust.
However, this issue is conditioned on a finding that the jury’s determination of liability
was wrong. We have concluded otherwise and need not reach the third issue on appeal.
We affirm the judgment of the trial court.
MATT JOHNSON
Justice
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Before Chief Justice Gray,
Justice Johnson,
and Justice Wright1
Affirmed
Opinion delivered and filed August 25, 2021
[CV06]
1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals,
sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§
74.003, 75.002, 75.003.
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