Barnes v. Mathis

• Decision Date: 21 October 2011
• Docket Number: No. 10–0669.,10–0669.
• Citation: 55 Tex. Sup. Ct. J. 63,353 S.W.3d 760
• Parties: H.E. BARNES, Petitioner, v. Lee Roy MATHIS, Respondent.
• Court: Texas Supreme Court

353 S.W.3d 760

55 Tex. Sup. Ct. J. 63

H.E. BARNES, Petitioner,

v.Lee Roy MATHIS, Respondent.

No. 10–0669.

Supreme Court of Texas.

Oct. 21, 2011.

Brent C. Howard, Howard & Davis, Tyler, Tynan Buthod, Elizabeth Eve Baker Lewis, Baker & Botts, L.L.P., Houston, for H.E. Barnes.

James N. Parsons III, Law Offices of Jim Parsons, Palestine, Susan Lea Hays, Godwin Ronquillo PC, Dallas, for Lee Roy Mathis.

PER CURIAM.

At issue in this case is whether the court of appeals erred in rendering judgment for a plaintiff who received an adverse verdict and take-nothing judgment after a jury trial. When a party with the burden of proof loses at trial and asks an appellate court to render judgment in his favor, that party must show that the evidence conclusively established his entitlement to judgment. Because the court of appeals incorrectly applied this standard and Mathis did not conclusively prove his nuisance and trespass claims, we reverse in part its judgment and remand the case to the court of appeals to determine factual sufficiency issues raised below.

Dr. Lee Roy Mathis and H.E. “Buster” Barnes own adjoining property in Anderson County. Lake Creek runs through both tracts, and Mathis's 1,254 acre property is located upstream from Barnes's. Mathis maintained a wetlands complex on much of his land, which attracted beavers, waterfowl, and other wildlife. Barnes's tract was used predominantly as a pasture. In September 2006, Barnes constructed an earthen road across the creek to more easily access his back pasture. To accommodate water flow in the creek, Barnes installed two twenty-eight-inch culverts, or drainage pipes, into the structure. In October 2006, Mathis noticed an elevated water level in the creek, which he suspected was caused by Barnes's road. By November, Mathis noticed that creek water encroached onto his property, and he asked Barnes to modify the road. Barnes later installed an additional culvert into the structure. In December 2006, Mathis returned to his property after a twelve-day absence to discover that Barnes's road was washed away. The flooding—and subsequent drainage—also affected over four hundred acres of Mathis's property, damaging beaver dams, affecting the wildlife population, and draining the wetlands.

Mathis sued Barnes, alleging negligence, gross negligence, nuisance, and trespass. At trial, Mathis argued that Barnes's road acted as a dam, causing a large amount of water to accumulate, which eventually destroyed Barnes's road and damaged much of Mathis's land. Barnes countered that an upstream event caused the flooding and produced evidence that Mathis's property did not lose value and Mathis did not suffer non-economic damages. After a jury answered “No” as to each of Mathis's causes of action, the trial court entered a take-nothing judgment.

On appeal, Mathis argued that, despite the jury's verdict, the evidence conclusively established nuisance, trespass, and negligence.¹ The court of appeals reversed the trial court's judgment in part, holding that “the evidence is legally insufficient to support the jury's ‘No’ answer[s]” to the nuisance and trespass issues. 316 S.W.3d at 802–04. The court nevertheless remanded the case for trial because, when “liability is contested, we cannot order a separate trial solely on damages. See Tex.R.App. P. 44.1(b).” Id. at 809.

The court of appeals concluded that the following material facts were established as a matter of law: (1) Barnes constructed the road across Lake Creek, (2) the road disrupted the creek's flow, and (3) water from the creek crossed the parties' property line, flooding Mathis's land. Id. at 802. Regarding the nuisance claim, the court pointed to evidence that Mathis maintained some of his property as a wetlands area and that after the large flood, the property retained much less water. Id. Thus, the court held that Mathis had conclusively established nuisance. Id. As to the trespass claim, the court observed that Barnes was aware that water encroached on Mathis's property after Barnes built the road. Id. at 803. The court held that because damage is presumed after a trespass, that claim, too, was established conclusively. Id. (citing Johnson v. Phillips Petroleum Co., 93 S.W.2d 556, 558–59 (Tex.Civ.App.-Amarillo 1936, no writ)).

Barnes contends that the court of appeals erred by focusing on evidence that failed to persuade the jury. We agree. Uncontested evidence may establish a fact as a matter of law—as when scientific proof yields only one conclusion—even if a jury disagrees. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005) (citing Murdock v. Murdock, 811 S.W.2d 557, 560 (Tex.1991) (holding that no evidence supported paternity verdict because blood test conclusively proved defendant was not the child's father)). In this case, however, the jury was required to evaluate the cause of an otherwise natural occurrence. Mathis stated the central issue appropriately: “the parties did contest whether the rush of floodwaters was caused by Barnes' structure breaking or, as Barnes argued, some unknown, upstream event. Barnes also posited that the destruction of the beaver dams might have been caused by wild hogs rooting around at their base.”

As the plaintiff, Mathis was required to prove nuisance and trespass. A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.² Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex.2004); see also Burditt v. Swenson, 17 Tex. 489 (1856). The jury refused to find that Barnes created a nuisance that damaged Mathis's land. In order to have judgment rendered for him despite the jury's verdict, Mathis must show that the evidence establishes conclusively that Barnes substantially interfered with his land and caused unreasonable discomfort. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam); see also Robert W. Calvert, “ No Evidence ” and “ Insufficient Evidence ” Points of Error, 38 Tex. L.Rev. 361, 364 (1960) (“Before a party is entitled to have a judgment based on [a jury's failure to find a vital fact] reversed and judgment rendered in his favor it must appear that the evidence establishes conclusively that the act was committed.” (emphasis in original)). We conclude that Mathis did not do so.

The parties agree that Barnes's road caused water to enter Mathis's land in October. However, Barnes disputed that the water substantially interfered with Mathis's property use or that it caused unreasonable discomfort or annoyance. Mathis's property is located in a floodplain. The property is within the watershed of Lake Creek, which is a major creek. At times, significant water comes down Lake Creek, creating river-like conditions on the property. The part of the tract maintained as a wetlands consistently retained water, and the bottomlands experienced fluctuations in water levels. Some of Mathis's land is in a swamp condition. The size of Mathis's marsh could increase by 20 or 25 acres with rain, and the area experienced some flooding even before Barnes built his road. A jury could decide, on this record, that the road-caused flooding—one of many other examples of elevated water level on the land—was insufficient to cause Mathis “unreasonable discomfort.” Because the evidence presented to the jury was conflicting, Mathis did not conclusively prove nuisance liability for damages for the initial flooding.

An unprecedented flooding event (as occurred in December) may qualify as a nuisance, but here the parties debated its cause. Mathis was absent from his property when the flood occurred, and could not say how much water was in the creek when he left his property on December 16. Mathis also testified that he was unsure whether the December flooding was the result of Barnes's road, as opposed to some other upstream occurrence. Further, Mathis admitted that heavy rains can inundate Lake Creek, creating river-like conditions whether or not the road had been built. As the court of appeals noted, there was also evidence that the volume of water that inundated Mathis's land had never occurred prior to Barnes's construction of the road.

The conflicting theories, each supported by evidence, presented a classic case for a jury's resolution. A jury could reasonably have found that Mathis did not prove Barnes's road caused a flooding event unique from natural circumstances. We...