Reynaldo Trevino and Maria Trevino v. Monika K. Patel ( 2023 )

Affirmed and Memorandum Opinion filed August 10, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00497-CV
REYNALDO TREVINO AND MARIA TREVINO, Appellants
V.
MONIKA K. PATEL, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 21-CV-1976
MEMORANDUM OPINION
Appellants Reynaldo and Maria Trevino sued Monika K. Patel for damages
and injunctive relief pursuant to Texas Water Code section 11.086, which generally
prohibits a person from diverting or impounding the natural flow of surface water in
a manner causing damage to another’s property. The trial court granted traditional
summary judgment in Patel’s favor. The Trevinos argue that summary judgment
was improper because they raised material fact issues.
Resolving the dispositive issue, we conclude that the Trevinos failed to raise
a material fact issue that water diversion, if any, caused damage to their land.
Therefore, we hold that the trial court did not err by granting summary judgment.
We affirm the trial court’s judgment.
Background
Monika Patel purchased a plot of land directly east of the Trevinos’ Galveston
County plot in 2020. In September 2021, Patel began large-scale sand excavation
on her property. Before long, Reynaldo Trevino noticed an increase in water
retention on the Trevinos’ property, including the presence of standing water. He
notified Patel, but the issue persisted.
In November 2021, the Trevinos filed suit against Patel, seeking monetary
damages and injunctive relief pursuant to Water Code section 11.086. That statute
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.
A person whose property is injured by an overflow 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 § 11.086(a), (b).
The trial court granted a temporary restraining order on November 4 directing
Patel to cease all excavation and pumping operations until November 18. On
November 12, the trial court began an evidentiary hearing on the Trevinos’ request
for injunctive relief. The trial court continued the hearing for two weeks to allow
the parties to collect further evidence, including hiring drainage experts. The trial
court later modified the restraining order to allow operations on Patel’s property
2
other than pumping water and to extend its applicability to November 22. The
Trevinos notified the trial court that their engineering expert was unable to visit the
site until after the rescheduled hearing date. However, they subsequently took no
further action on their request for injunctive relief and failed to appear at a February
2022 status conference.
On March 24, Patel filed a hybrid traditional and no-evidence summary-
judgment motion. In the traditional part of her motion, Patel argued that, as a matter
of law, the Trevinos could not establish the elements of water diversion and
causation. In a timely response, the Trevinos argued that: (1) material fact issues
with respect to Patel’s alleged discharge of water onto their land precluded summary
judgment; (2) Patel failed to comply with local, state, and federal regulations in
operating the sand excavation operations; and (3) they lacked an adequate time to
conduct discovery. In a reply, Patel objected to the Trevinos’ evidence.
The trial court granted Patel’s traditional motion for summary judgment,
without ruling on Patel’s evidentiary objections.1 This appeal timely followed.
Analysis
A. Standard of Review and Applicable Law
Our review of a summary judgment is de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To be entitled to traditional summary
judgment, a movant must establish there is no genuine issue of material fact so that
the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
1
It is clear from the record that the trial court granted the motion only on traditional
grounds because the order states, “On this day came on to be considered Defendant Monika Patel’s
Motion for Summary Judgment under Texas Rule of Civil Procedure 166a(c).”
3
A defendant who conclusively negates at least one essential element of a cause of
action or conclusively establishes an affirmative defense is entitled to summary
judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508-09
(Tex. 2010). Once the movant produces evidence entitling it to summary judgment,
the burden shifts to the nonmovant to present evidence raising a genuine issue of
material fact. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Evidence is
conclusive only if reasonable people could not differ in their conclusions. City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
When, as here, the order granting summary judgment does not specify the
grounds upon which the trial court relied, we must affirm the summary judgment if
any of the independent summary-judgment grounds is meritorious. Cmty. Health
Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017).
As courts have construed the elements of a section 11.086 claim, a plaintiff
must prove that the defendant’s diversion or impoundment of “the natural flow of
surface waters” caused damage to the plaintiff’s property. See Tex. Water Code
§ 11.086; Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978), disapproved of on
other grounds, Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex.
2004); Contreras v. Bennett, 361 S.W.3d 174, 178 (Tex. App.—El Paso 2011, no
pet.); Dietrich v. Goodman, 123 S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.]
2003, no pet.). Patel asserted in the traditional portion of her summary-judgment
motion that the Trevinos’ claim fails because, as a matter of law, the evidence
conclusively shows that (a) Patel did not divert any water onto the Trevinos’ land,
and (b) Patel did not cause any injury to the Trevinos’ land by an unlawful diversion
of water.2
2
Section 11.086 applies to diversion or impoundment of the “natural flow of surface
water.” This court has explained that the first element of a section 11.086 claim has three critical
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B. Application
Because we conclude it is dispositive, we address only Patel’s second ground:
that any water diversion from her sand mining operations caused no damage to the
Trevinos’ land. In a statutory surface water diversion claim, the plaintiff bears the
burden to prove that an unlawful diversion is the cause in fact of damages to their
property. See Contreras, 361 S.W.3d at 178. The test for determining whether water
diversion is the cause in fact of damages is whether the act or omission is a
substantial factor in causing the damage, without which the harm would not have
occurred. See id. at 179 (citing Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex.
2002)).
Patel attached the affidavit of Professional Engineer Louis Faust, who
evaluated the drainage on the properties. The Trevinos’ property is west of Patel’s
property. Faust observed that Patel pumps water from the sand pit operations
through a six-inch drainage pipe to a sedimentation pond on another property to the
east of Patel’s property. According to Faust, both Patel’s and the Trevinos’ tracts
naturally drain to the northwest; however, natural swales and berms would direct
any runoff or discharge from Patel’s sand excavation operation eastward to the
terms: diversion, impoundment, and surface water. See Dietrich, 123 S.W.3d at 417. The term
“surface water” is undefined in the Water Code, but it is a term of art when used in the context of
riparian rights. Ehler v. LVDVD, L.C., 319 S.W.3d 817, 825 (Tex. App.—El Paso 2010, no pet.);
Dietrich, 123 S.W.3d at 417-18. As it has been construed in connection with a section 11.086
claim, “surface water” is water that “‘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 flow.’” Ehler, 319 S.W.3d at 825 (quoting Tex. Woman’s Univ. v. Methodist Hosp.,
221 S.W.3d 267, 277 (Tex. App.—Houston [1st Dist.] 2006, no pet.)); see also Dietrich, 123
S.W.3d at 419. Further, once water “is under control by a ditch, tank, pond, or pipe, it no longer
qualifies as surface water.” Dietrich, 123 S.W.3d at 419. In her summary-judgment motion, Patel
did not argue that she was entitled to summary judgment because any diverted water was not
“surface water” and thus section 11.086 did not apply. Accordingly, we do not address the issue
as it applies to the facts presented.
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sedimentation pond and not to the Trevinos’ property. He added that “[n]either tract
accepts significant runoff from the other.” Although he explained that ponding
could occur on the Trevinos’ land “[d]uring times of high groundwater or tidal
influences,” because of “the flat nature of the land, and, most importantly, that this
entire area is identified as wetlands, . . . it would be very difficult to attribute . . .
ponding [on the Trevinos’ land] to [Patel’s] discharge operations.” He concluded
that “the likelihood is extremely low that dewatering operations from the pump
negatively affect the Trevino tract.” He based his opinions on research into publicly
available elevation data and field observations he made during a site visit. Further,
Faust did not observe any evidence of previous ponding on the Trevinos’ land. Faust
explained that “[d]ue to low elevations and nearby coastal water, [it] is expected that
the water table is very close, within inches in some areas, to natural ground for the
majority of the area northwest of [Patel’s property].”
Faust’s affidavit was sufficient to establish that any water diversion from
Patel’s operations was extremely unlikely to cause damage to the Trevinos’ land,
that is, that Patel’s operations were not a substantial factor in causing any damage to
the Trevinos’ land and without which the harm would not have occurred. See, e.g.,
Contreras, 361 S.W.3d at 179; see also Doe v. Boys Club of Greater Dallas, Inc.,
907 S.W.2d 472, 477 (Tex. 1995) (“Cause in fact is not shown if the defendant’s
negligence did no more than furnish a condition which made the injury possible.”);
Vasquez v. Lewis Energy Grp., LP, No. 14-18-00921-CV, 2020 WL 5047317, at *3-
4 (Tex. App.—Houston [14th Dist.] Aug. 27, 2020, no pet.) (mem. op.). Thus, Patel
met her initial summary-judgment burden on this ground, and the burden of proof
shifted to the Trevinos.
In their brief, the Trevinos point to Reynaldo’s testimony from the November
12, 2021 temporary injunction hearing:
6
In this case, Appellant Reynaldo Trevino testified that he had
owned the land for twenty-five (25) years; that he visited the land
frequently; and that he had observed the tendency of the water to drain
quickly, even in instances of severely heavy rainfall. He provided
pictures of the standing water on his property, and spoke of how ground
that had previously been stable, allowing him to drive his truck over it,
was now saturated to a degree that he was unable to mow the grass with
his tractor. . . .
Mr. Trevino testified that his ground was so saturated, due to
standing water diverted by Appellee’s pumping[,] that it was no longer
possible to drive a vehicle onto the property, or to cut the grass. Mr.
Trevino testified that he obtained the property as grazing land for
animals, currently keeping a horse on the property, and that it was
necessary to cut the grass in order to maintain it in a condition sufficient
for animal feed.
Mr. Trevino also gave testimony to the effect that he was seeking
to sell his property. He testified that one prospective buyer had been
deterred by the standing water on the property.
To survive summary judgment, it is not necessary to conclusively
establish substantial damages, nor does the statute require any
particular measure of damages. Expert testimony is not necessary to
establish an interference with the use and enjoyment of one’s property.
Mr. Trevino’s testimony in this regard was more than sufficient to
defeat summary judgment.
(Emphasis added, record citations omitted).
Reynaldo did not provide an affidavit or unsworn declaration establishing this
information as part of the summary-judgment record. Instead, in their summary-
judgment response, the Trevinos stated, “The Court will also recall testimony from
Mr. Reynaldo Trevino, adduced at hearing on November 12, 2021, stating that he
has owned the subject property for approximately twenty years, and has observed
the inundation of water on this land created by Defendant’s pumping operations.”
But the Trevinos did not include a reporter’s record from this hearing in the
summary-judgment record.
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“If there is no file mark on a statement of facts or any other indication it was
considered by the trial court at the time the motion for summary judgment was
sustained, it may not be considered on appeal.” Munoz v. Gulf Oil Co., 693 S.W.2d
372, 373 (Tex. 1984); see also Gonzalez v. Gonzalez, No. 04-20-00226-CV, 2021
WL 6127931, at *9 (Tex. App.—San Antonio Dec. 29, 2021, no pet.) (mem. op.)
(“Abelardo’s responses to the motion for summary judgment also requested the court
consider Alberto’s testimony at a previous hearing in the case. However, no copy
of the reporter’s record of that hearing was filed in the trial court. Because the
material was not before the trial court when it ruled on the motion for summary
judgment, we do not consider it.”). Although the Trevinos filed a copy of the
reporter’s record from this hearing with this court, this evidence was not before the
trial court when it ruled on Patel’s motion for summary judgment. Accordingly, we
do not consider it on appeal. See Tex. R. Civ. P. 166a(a), (b), (d); Munoz, 693
S.W.2d at 373; Gonzalez, 2021 WL 6127931, at *9; accord also City of Houston v.
Miller, No. 01-19-00450-CV, 2019 WL 7341666, at *3 (Tex. App.—Houston [1st
Dist.] Dec. 31, 2019, no pet.) (mem. op.) (declining to consider exhibit that was not
part of electronic record when there was no indication it was filed with the trial court
clerk or that the trial court considered it when denying the City’s jurisdictional plea);
Republic Servs., Inc. v. Rodriguez, No. 14-12-01054-CV, 2014 WL 2936172, at *3-
4 (Tex. App.—Houston [14th Dist.] June 26, 2014, no pet.) (mem. op.) (explaining
that supplemental record containing evidence that was not before the trial court at
the time it ruled on summary-judgment motion would not be considered on appeal);
Dover v. Polyglycoat Corp., 606 S.W.2d 19, 20 (Tex. App.—Houston [1st Dist.]
1980, no writ) (citing cases for proposition that “where statements of facts were not
on file in the trial court at the time the summary judgments were rendered, neither
the trial court nor the reviewing court would consider the statement of facts on
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appeal”). For these reasons, Reynaldo’s statements made at the injunction hearing
cannot support a material fact question in response to Patel’s motion.
The Trevinos also asserted in their summary-judgment response that their
expert report established that “pumping of water from the sand and gravel mining
operation on the Defendant’s property does, in fact, cause discharge or water onto
Plaintiffs’ land.” The Trevinos’ expert report likewise fails to create a genuine issue
of material fact for several reasons. First, the report is unverified, and courts have
held that unverified expert reports are not competent summary-judgment evidence.
E.g., Kolb v. Scarbrough, No. 01-14-00671-CV, 2015 WL 1408780, at *4-5 (Tex.
App.—Houston [1st Dist.] Mar. 26, 2015, no pet.) (mem. op.) (explaining that
unverified expert report is not competent summary-judgment evidence and could not
defeat no-evidence summary-judgment motion on section 11.086 claim, even though
objection to report was not lodged in trial court).
Second, although the report in fact states that overflow from the sedimentation
pond “flows in part across Mr. Trevino’s property,” nothing in the report establishes
that any such overflow causes damage to the Trevinos’ land. See Tex. Water Code
§ 11.086 (water diversion must damage claimant’s land); Kraft, 565 S.W.2d at 229.
Further, as shown by Patel’s evidence, the Trevinos’ land is designated as wetlands;
thus, some level of water on the Trevinos’ land is to be expected.3
Finally, while the Trevinos’ expert stated that discharge from the Patel’s
dewatering pipe “could have caused standing water to accumulate on Mr. Trevino’s
land” (emphasis added), such speculative opinion testimony is insufficient to create
a fact issue. See, e.g., Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 786 (Tex.
3
See “What is a Wetland?,” https://www.epa.gov/wetlands/what-wetland (defining a
wetland as an area “where water covers the soil, or is present either at or near the surface of the
soil all year or for varying periods of time during the year, including during the growing season”).
9
2020); Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,
232-33 (Tex. 2004).
In sum, we conclude that Patel established conclusively that any water
discharge from her sand mining operations was not a substantial factor in damaging
the Trevinos’ land without which the harm would not have occurred. Thus, Patel
established her entitlement to summary judgment. The only evidence the Trevinos
rely upon in support of their argument that they raised a genuine issue of material
fact on causation either was not before the trial court at the time it ruled on Patel’s
summary-judgment motion or is incompetent expert proof. Cf. Kolb, 2015 WL
1408780, at *5 (holding that, because only evidence offered that defendant’s water
diversion caused damage to plaintiffs’ property was incompetent, there was no fact
issue and no-evidence summary judgment was proper on section 11.086 claim).
Therefore, the Trevinos failed to raise a material fact issue on whether Patel’s sand
mining operations caused damages to their land.4
Under these circumstances, we overrule the Trevinos’ issue.
4
In their summary-judgment response, the Trevinos contended that they did not have an
adequate time for discovery. On appeal, they assert in a conclusory fashion in the “Summary of
the Argument” section of their brief that “there had been an inadequate time to conduct discovery.”
However, they offer no argument or authority in support of this contention. See Tex. R. App. P.
38.1(i). At any rate, discovery need not be completed to satisfy this requirement; there need only
be adequate time to conduct it. McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston
[14th Dist.] 2008, no pet.). A party contending inadequate time to conduct discovery must file
either an affidavit explaining the need for further discovery or a verified motion for continuance.
Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d 640, 647 (Tex. 1996); accord Lindsey Constr.,
Inc. v. AutoNation Fin. Servs., LLC, 541 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2017,
no pet.). The Trevinos filed neither an affidavit nor a verified motion for continuance. Thus, to
the extent that their brief can be construed as raising this issue, they failed to preserve any
complaint about any inadequacy of time to conduct discovery. See Kaldis v. Aurora Loan Servs.,
424 S.W.3d 729, 736 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
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Conclusion
Having overruled the Trevinos’ sole issue, we affirm the trial court’s
judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Hassan, and Wilson.
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