trinity-river-estates-lp-v-pat-difonzo-zena-development-corporation ( 2009 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-08-393-CV
    TRINITY RIVER ESTATES, L.P.                                     APPELLANT
    V.
    PAT DIFONZO, ZENA DEVELOPMENT                                    APPELLEES
    CORPORATION, ZENA LAND
    DEVELOPMENT, L.P., MARIO
    SINACOLA & SONS EXCAVATING,
    INC., AUSTIN BRIDGE & ROAD, L.P.,
    AUSTIN BRIDGE & ROAD, INC., AND
    TURNER, COLLIE & BRADEN, INC.
    ------------
    FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    I. Introduction
    In two issues, Appellant Trinity River Estates, L.P. (“TRE”) appeals the
    trial court’s orders granting summary judgments in favor of Appellees Pat
    1
    … See Tex. R. App. P. 47.4.
    DiFonzo, Zena Development Corporation, and Zena Land Development, L.P.
    (collectively, “Developer”); Mario Sinacola & Sons Excavating, Inc.(“Mario”);
    Austin Bridge & Road, L.P. and Austin Bridge & Road, Inc. (collectively,
    “Austin”); and Turner, Collie & Braden, Inc. (“Turner”). We affirm.
    II. Factual and Procedural History
    The parties do not dispute the following:2 TRE owns an undeveloped
    portion of land in the Trinity Estates division of the City of Benbrook. In 2000,
    DiFonzo, acting as President of the Zena Corporation, approached TRE and
    requested a drainage easement upon TRE’s property for the development of
    Trinity Gardens—a portion of property adjacent to TRE’s land. Although TRE
    refused DiFonzo’s request, development on the Trinity Gardens project
    commenced. Developer hired Turner to be the engineer for the Trinity Gardens
    project, Mario to excavate the land, and Austin to pave the roads.
    In December 2002, TRE filed suit against Trinity Gardens, L.P.; Choice
    Homes, Inc.; Zena GP1 LLC; Developer; Mario; Utilities, Inc. (d/b/a H & S Utility
    Contractors); and Austin for flooding that occurred on TRE’s property in late
    July or early August 2002 that allegedly resulted from the Trinity Gardens
    development.    During the suit’s pendency, Choice Homes and Developer
    2
    … See Tex. R. App. P. 38.1(g) (declaring, “[i]n a civil case, the court will
    accept as true the facts stated unless another party contradicts them”).
    2
    indicated to TRE that Turner had added a revision to the drainage plans that
    called for a retention pond upon the property of Trinity Gardens; that the pond
    was either constructed or in the process of being constructed; and that the
    installation of the pond should cure TRE’s excess water problems.             TRE
    dismissed the case and elected to “wait and see whether in fact such
    installation did cure such drainage problems.”
    In March 2005, TRE filed another suit against Developer, Mario, Austin,
    and Turner for negligent and intentional diversion of water, nuisance, trespass,
    and violations of the water code. 3 TRE’s fourth amended petition claimed in
    pertinent part that:
    Based on the damage to [TRE’s] property caused by [Appellees’]
    development activities, [TRE] filed suit against [Appellees] in 2002.
    In a spirit of compromise, and to avoid the expense of continued
    litigation, [TRE] agreed to provide [Appellees] with the opportunity
    to rectify the situation causing the flooding of [TRE’s] property.
    [TRE] agreed that it would discontinue pursuing litigation against
    [Appellees] only if and until [Appellees] took the necessary remedial
    steps to prevent the flooding onto [TRE’s] property. The [r]etention
    pond which was constructed as the alternative to the easement
    which [TRE] was unwilling to sell was wholly ineffective.
    [Appellees] intended that the [r]etention pond would solve the
    flooding anticipated by the construction of the development;
    however, during periods of significant rainfall the [r]etention pond
    3
    … In later amended petitions, TRE dropped the water code causes of
    action as to Mario, Austin, and Turner but added causes of action for gross
    negligence and common law diversion of water as to all of the parties.
    3
    stands dry while [TRE’s] property continues to be damaged by
    flooding.
    In response, Developer, Turner, Mario, and Austin each filed no-evidence
    and traditional motions for summary judgment. The trial court granted their
    motions. This appeal followed.
    III. Discussion
    TRE asserts in its first issue that the trial court erred by granting no-
    evidence summary judgments in favor of Developer and Turner as to TRE’s
    negligence, nuisance, trespass, and gross negligence claims, and in favor of
    Mario and Austin as to TRE’s nuisance and trespass claims. In its second issue,
    TRE argues that the trial court erred by granting summary judgments in favor
    of Developer, Turner, Mario, and Austin, as to all of TRE’s claims—each moved
    for traditional summary judgment on the grounds of limitations and no damages.
    A. Standard of Review
    Our review of a summary judgment is de novo to determine whether a
    party’s right to prevail is established as a matter of law.    Tex. R. Civ. P.
    166a(c); Cathey v. Booth, 
    900 S.W.2d 339
    , 341 (Tex. 1995). When, as here,
    a trial court’s order granting summary judgment does not specify the grounds
    relied upon, the reviewing court must affirm summary judgment if any of the
    summary judgment grounds are meritorious. FM Props. Operating Co. v. City
    4
    of Austin, 
    22 S.W.3d 868
    , 872–73 (Tex. 2000); Star-Telegram, Inc. v. Doe,
    
    915 S.W.2d 471
    , 473 (Tex. 1995).
    When a party moves for summary judgment under both rules 166a(c) and
    166a(i), we will first review the trial court’s judgment under the standards of
    rule 166a(i). Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    , 600 (Tex. 2004).
    When reviewing a no-evidence summary judgment, we examine the entire
    record in the light most favorable to the nonmovant, indulging every reasonable
    inference and resolving any doubts against the motion. Sudan v. Sudan, 
    199 S.W.3d 291
    , 292 (Tex. 2006). If the nonmovant brings forward more than a
    scintilla of probative evidence that raises a genuine issue of material fact, then
    a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 
    981 S.W.2d 266
    , 269 (Tex. App.—San Antonio 1998, pet. denied). We review a
    no-evidence summary judgment for evidence that would enable reasonable and
    fair-minded jurors to differ in their conclusions.     Hamilton v. Wilson, 
    249 S.W.3d 425
    , 426 (Tex. 2008) (citing City of Keller v. Wilson, 
    168 S.W.3d 802
    ,
    822 (Tex. 2005)).
    B. Damages
    In TRE’s first issue, TRE asserts that the trial court erred by granting each
    Appellee’s no-evidence motion for summary judgment. As a sub-issue, TRE
    5
    complains that the trial court erred by granting Turner’s motion to strike TRE’s
    summary judgment evidence.
    1. Background
    TRE alleged various causes of action below—negligent and intentional
    diversion of water, nuisance, trespass, violation of the water code, gross
    negligence, and common law diversion—and sought damages for each of its
    claims. In response, each Appellee filed a no-evidence motion for summary
    judgment, asserting, among other things, that there was no evidence of
    damages for any of TRE’s causes of action.4 Consequently, the burden shifted
    to TRE to raise a genuine issue of material fact on the damages element of each
    of its claims in order to avoid summary judgment. See Tex. R. Civ. P. 166a(I).
    In an attempt to meet its burden on damages, TRE attached to its
    response James Ryffel’s 5 and Ahmad Khammash’s 6 affidavits and argued that
    the affidavits contained evidence of damages to support each of TRE’s claims.7
    4
    … Each Appellee moved for no-evidence summary judgment on each
    element of each of TRE’s causes of action.
    5
    … Ryffel is the sole limited partner of TRE.
    6
    … Khammash is a registered professional engineer in the State of Texas.
    7
    … We note, however, that TRE did not direct the trial court to any
    specific evidence within the affidavits to support its claim of damages but
    rather asked the trial court to “see Ryffel’s and Khammash’s affidavits.” See
    Nawas v. R & S Vending, 
    920 S.W.2d 734
    , 737 (Tex. App.—Houston [1st
    6
    After a thorough review of Ryffel’s affidavit, we encountered the following
    pertinent portion on damages:
    In my opinion, the property of Trinity River Estates, LP has been
    damaged between $1.8 and $2.2 million dollars based upon the
    reduction in value of the overall site that has been caused by the
    inability to develop a number of lots thereon and the necessity,
    when the property is developed, to install a retaining pond.
    However, after a similar review of Khammash’s affidavit, although there was
    evidence that might raise a fact issue as to an injury to TRE, nothing addressed
    TRE’s damages.8
    Dist.] 1996, no writ) (stating that courts of appeals are not required to search
    the record without guidance from appellant to determine whether it has
    produced evidence raising a genuine issue of material fact on the elements
    challenged by appellees); but see Johnson v. Brewer & Pritchard, P.C., 
    73 S.W.3d 193
    , 207 (Tex. 2002) (holding that appellant’s response, which did not
    connect facts to the challenged elements, was adequate for considering
    whether a fact issue had been raised).
    8
    … Khammash’s affidavit stated in pertinent part:
    The Trinity Gardens site prior to development was composed of
    approximately 23 acres covered with vegetation, mostly grass with
    light tree cover and two large ponds of combined volume of
    650,504 cubic feet. . . . These retention ponds were completely
    eliminated as part of the Trinity Gardens Addition development. A
    much smaller (approximately 50,000 cubic feet) retention pond
    from which the upper half of the development area flows, was
    constructed. . . .
    Prior to the development of the Trinity Gardens property the original
    rainstorm runoff coefficient of the area was approximately .3.
    After development the runoff coefficient of the area is .55.
    Therefore, the amount of runoff from any rainstorm will increase
    7
    Turner filed objections and a motion to strike the portion of Ryffel’s
    affidavit pertaining to damages on the grounds that it was conclusory and that
    Ryffel was not an expert; it also filed a motion to strike Khammash’s entire
    affidavit on the grounds that it was unreliable and irrelevant. The trial court
    sustained Turner’s objections.
    In support of its argument that it raised a fact issue regarding damages
    as to its claims against each Appellee, TRE directs our attention to Ryffel’s and
    dramatically over the entire Trinity Gardens developed area at times
    when there does not exist a non-saturated soil condition.
    It is my opinion based upon the foregoing that the Trinity Gardens
    development severely reduced upstream pervious areas and
    eliminated the previously existing retention ponds. . . . It is my
    opinion that the development of the Trinity Gardens Addition has
    increased the cumulative volume and frequency of storm water
    runoff onto the property of Trinity River Estates, LP. It is my
    further opinion that [Turner] failed to adequately provide for this
    increased runoff in its engineering plans it prepared. . . .
    Additionally, it is my professional opinion that [Turner] knew or
    should have known that increased water runoff from the Trinity
    Garden development would adversely affect the property of Trinity
    River Estates, LP. Additionally, it is my professional opinion that
    the retention pond constructed as part of the upstream
    development has had no [e]ffect in mitigating the increased water
    runoff onto the property of Trinity River Estates, LP. Based on all
    of the foregoing, it is my professional opinion that [Turner] was
    negligent in failing to provide adequate storm water drainage plans
    for the development and that this negligence has resulted in
    substantial increased flooding to the property of Trinity River
    Estates, LP.
    8
    Khammash’s affidavits 9 and argues that the trial court erred by granting
    Turner’s motion to strike them from TRE’s summary judgment evidence. 1 0
    Specifically, TRE argues that Ryffel, as the sole limited partner of TRE, falls
    under the “Property Owner Rule” and therefore Ryffel’s opinion as to the value
    of his property raises a fact issue as to damages. The Appellees, however,
    argue that Ryffel’s affidavit is conclusory and therefore does not constitute
    competent summary judgment evidence.
    9
    … TRE also refers us to a portion of Ryffel’s deposition attached to
    Turner’s motion. TRE argues that even if the portion of Ryffel’s affidavit
    pertaining to damages was struck by the trial court, the same evidence is
    contained within the summary judgment evidence proffered by Turner in its
    motion for summary judgment. However, in a no-evidence motion for summary
    judgment, the non-movant bears the burden of producing competent summary
    judgment evidence; therefore, in this case, TRE bore the burden of producing
    proper summary judgment evidence, not Turner. See Tex. R. Civ. P. 166a(i).
    Accordingly, pursuant to this rule, we have not considered the evidence
    attached by Turner in conjunction with its motion. See Southtex 66 Pipeline
    Co., Ltd. v. Spoor, 
    238 S.W.3d 538
    , 542 n.1 (Tex. App.—Houston [14th Dist.]
    2007, pet. denied) (stating even though the movant in a no-evidence summary
    judgment attached evidence, the appellate court did not consider the evidence).
    Furthermore, even if we were to consider Ryffel’s deposition testimony, it, like
    Ryffel’s affidavit, is conclusory and therefore does not qualify as competent
    summary judgment evidence.
    10
    … Having determined that Khammash’s affidavit did not include
    evidence of damages, we need not include it in the remaining discussion
    pertaining to damages.
    9
    2. Applicable Law
    Affidavits supporting and opposing a motion for summary judgment must
    set forth facts, not legal conclusions. See Mercer v. Daoran Corp., 
    676 S.W.2d 580
    , 583 (Tex. 1984); AMS Constr. Co. v. Warm Springs Rehab. Found., Inc.,
    
    94 S.W.3d 152
    , 157 (Tex. App.—Corpus Christi 2002, no pet.). A conclusory
    statement is one that does not provide the underlying facts to support the
    conclusion, and it is insufficient to create a question of material fact to defeat
    summary judgment. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason,
    
    143 S.W.3d 794
    , 803 (Tex. 2004); McIntyre v. Ramirez, 
    109 S.W.3d 741
    ,
    749–50 (Tex. 2003). To constitute competent summary judgment evidence,
    the testimony must provide an explanation linking the basis of the conclusion
    to the facts. Windsor v. Maxwell, 
    121 S.W.3d 42
    , 49 (Tex. App.—Fort Worth
    2003, pet. denied).
    The Supreme Court of Texas has held that property owners who are
    familiar with the market value of their property, including real property, may
    testify as to their opinions regarding this value, even though they do not qualify
    as expert witnesses and even though they would not be allowed to testify
    regarding the market value of property they do not own. See Redman Homes,
    Inc. v. Ivy, 
    920 S.W.2d 664
    , 669 (Tex. 1996); Porras v. Craig, 
    675 S.W.2d 503
    , 504–05 (Tex. 1984). The Property Owner Rule is based on the premise
    10
    that property owners ordinarily know the market value of their property and
    therefore have a sound basis for testifying as to its value. See 
    Porras, 675 S.W.2d at 504
    ; State v. Berger, 
    430 S.W.2d 557
    , 559 (Tex. Civ. App.—Waco
    1968, writ ref’d n.r.e.).   For a property owner to qualify as a witness, his
    testimony “must show that it refers to market, rather than intrinsic or some
    other value of the property.” 
    Porras, 675 S.W.2d at 504
    –05. This requirement
    is usually met if the owner testifies that he is familiar with the market value of
    his property. “Market value” is the price property would bring if offered for sale
    by one who desires, but is not obligated to sell, and is bought by one who is
    under no obligation to buy. Exxon Corp. v. Middleton, 
    613 S.W.2d 240
    , 246
    (Tex. 1981).
    3. Analysis
    Assuming without deciding that the Property Owner Rule applies to
    Ryffel, Ryffel’s affidavit is conclusory and therefore not competent summary
    judgment evidence that raises a fact issue as to damages. 11 See Ryland Group,
    Inc. v. Hood, 
    924 S.W.2d 120
    , 122 (Tex. 1996) (stating “[c]onclusory
    affidavits are not enough to raise fact issues”); Residential Dynamics, LLC v.
    Loveless, 
    186 S.W.3d 192
    , 198 (Tex. App.—Fort Worth 2006, no pet.) (stating
    11
    … Furthermore, even if we were to consider Ryffel’s deposition
    testimony, Ryffel admits that he has had no appraisal done on the property.
    11
    “[a] conclusory statement is one that does not provide the underlying facts to
    support the conclusion”).
    The only testimony in Ryffel’s affidavit pertaining to damages was that
    “Trinity River Estates, LP has been damaged between $1.8 and $2.2 million
    dollars based upon the reduction in value of the overall site.” However, in order
    for an owner’s testimony to qualify under the Property Owner Rule, the owner
    must testify as to the market value. See 
    Porras, 675 S.W.2d at 504
    (holding
    that in a suit for permanent damage to land, the measure of damages is the
    difference in the market value of the land immediately before and immediately
    after the injury). The evidence here contains no basis for Ryffel’s opinion. We
    cannot determine from the affidavit whether the reduction in value is based on
    market, intrinsic, or some other value. See 
    id. at 505
    (stating that in order for
    a property owner to qualify as a witness to the damages to his property, his
    testimony must show that it refers to market, rather than intrinsic or some
    other value of the property).    Therefore, because Ryffel’s testimony as to
    damages is conclusory, and because TRE did not offer any other evidence of
    damages, we hold that the trial court did not err by granting Developer’s,
    Turner’s, Mario’s, and Austin’s no-evidence motions for summary judgment on
    the ground that TRE did not raise a genuine issue of material fact as to
    damages on each of its claims.      Furthermore, because Ryffel’s affidavit is
    12
    conclusory, we hold the trial court did not abuse its discretion by granting
    Turner’s motion to strike. Accordingly, we overrule TRE’s first issue.
    Because Appellees conclusively established entitlement to judgment based
    on no-evidence of damages as to each of TRE’s claims, we need not address
    TRE’s remaining issue.    See Tex. R. App. P. 47.1 (stating opinions should
    address only issues necessary to final disposition of appeal).
    IV. Conclusion
    Having overruled TRE’s dispositive issue, we affirm the trial court’s
    judgments.
    BOB MCCOY
    JUSTICE
    PANEL:       CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
    DELIVERED: May 28, 2009
    13