Boatman v. Lites
| Decision Date | 27 February 1998 |
| Docket Number | No. 12-97-00032-CV,12-97-00032-CV |
| Citation | 970 S.W.2d 41 |
| Parties | Bill F. BOATMAN and Lou Boatman, Appellants, v. Charles A. LITES and Joyce B. Lites, Appellees. |
| Court | Texas Court of Appeals |
John Fletcher Walker, Tyler, for appellants.
Kerry L. Russell, Tyler, for appellees.
Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.
Appellants, Bill Boatman and Lou Boatman ("Boatmans") appeal a jury verdict and declaratory judgment for Charles Lites and Joyce Lites ("Lites") in a water law case. The Boatmans complain that the trial court erred when it awarded attorney's fees, when it overruled their motions for directed verdict, and when it overruled their objections to certain jury questions. We will affirm in part, and reverse and render in part.
The Lites and the Boatmans owned adjoining property in Chandler, Texas. In their original petition, the Lites maintained that the Boatmans negligently diverted the natural flow of water from their land onto the Lites' land by the use of "berms." As a consequence of this diversion, the Lites' land eroded where the water flowed into the creek which bordered both parties' property. They requested a declaratory judgment declaring their rights, status and legal remedies pertaining to their property deeds and their property, and their rights under Chapter 11 of the Texas Water Code, including, but not limited to § 11.086. They also sought temporary and permanent injunctions, actual and punitive damages, and attorney's fees. After a trial to the jury, the trial court declared that the Lites owned a certain piece of property in Henderson County, Texas, and that the Boatmans violated § 11.086 of the Texas Water Code by diverting surface water onto that property. The trial court further held that the Lites' property would continue to be damaged unless the Boatmans were enjoined from diverting the natural flow of the surface waters on the Lites' property; therefore, the Boatmans were permanently enjoined from doing so. The court awarded the Lites $2,352 in actual damages, $3,800 in punitive damages, and $12,500 in attorney's fees.
In their first point of error, the Boatmans complain that the trial court erred in rendering judgment awarding attorney's fees because the Texas Declaratory Judgments Act was inapplicable to the Lites' causes of action. We agree. The Declaratory Judgments Act provides that a person interested under a deed or other writing constituting a contract may have the court determine any question of construction or validity arising under the instrument and obtain a declaration of rights, status, or other legal relations under it. 1 In addition, a person whose rights, status, or other legal relations are affected by a statute may have the court determine any question of construction or validity arising under the statute and obtain a declaration thereunder. 2 The Act provides a procedural method for deciding the validity or proper construction of a written instrument or a statute. 3 A declaratory judgment should not be rendered when there is no claim that a statute or a deed is ambiguous or invalid. 4 It is well settled in Texas that a declaratory judgment may not be used solely as a vehicle to obtain attorney's fees, 5 and it is inappropriate if it will serve no useful purpose. 6 The rendition of a declaratory judgment, however, rests within the sound discretion of the trial court. 7
In the instant case, the Lites gave two bases upon which they claimed the right to a declaratory judgment. First, they asserted that there was a need for the court to determine the rights of the parties under the deeds to the property. In reviewing the record, however, the ownership of the property was never at issue. Consequently, we hold that the trial court abused its discretion when it afforded declaratory relief on this basis.
As their second reason for declaratory judgment, the Lites asserted that they required the court to determine the parties' rights under § 11.086 of the Texas Water Code. In our view, this was a request for the court to declare liability under a civil statute. The Lites' declaratory judgment action requested no greater or different relief than did their claim for damages resulting from negligence and the violation of § 11.086. 8 We hold, therefore, that it was an abuse of discretion when the trial court granted declaratory relief on this basis.
The Lites argue that the Boatmans waived error on this point by not filing and having the trial court rule on a special exception to the pleading requesting declaratory judgment relief. 9 We disagree. A party waives error on this issue only if he fails "to properly except ... or otherwise raise the issue until after the judgment was signed." 10 At the trial of this case, the Boatmans informed the court that they objected to the award of attorney's fees by filing a motion in limine, by objecting to evidence of attorney's fees and submitting a trial brief setting out their position that declaratory judgment was not applicable to this case, and by objecting to the submission of the jury question on attorney's fees. We hold that the Boatmans fairly apprised the trial court of their position that declaratory judgment and the award of attorney's fees was inappropriate in this action. We sustain point of error one.
The Lites file a cross-point complaining that the trial court erred in overruling their motion to disregard the jury's answer which denied recovery for attorney's fees for work done on appeal. Because we have reversed the award of attorney's fees, we overrule the Lites' cross-point.
In their second and third points of error, the Boatmans claim that the trial court erred in overruling their motions for directed verdict and objections to the issue of diversion of surface waters because there was no evidence to support jury questions on that issue or, in the alternative, there was insufficient evidence to support the jury's answers on that issue. The complained-of jury questions and answers were as follows:
Do you find that on the occasion in question, Defendants diverted the natural flow of surface waters which proximately caused damage to the property of the Plaintiffs?
Answer: We do.
If you found that the Defendants did divert the natural flow of surface waters in such a manner as to damage the property of Plaintiffs, then state whether or not damage will occur in the future to the Plaintiffs' property from the water so diverted?
Answer: We do.
The jury charge defined "surface waters" as follows:
... those [waters] which are diffused over ground from falling rain or melting snows and continue to be such until it reaches some bed or channel in which water is accustomed to flow and ceases to be such when it enters a water course in which it is accustomed to flow.
The Boatmans did not object to the definition of "surface waters" in the charge of this case.
Section 11.086 of the Texas Water Code states that "[n]o 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." 11 This statute imposes a burden on a property owner to receive, and only prohibits diverting or impounding, the natural flow of surface water. 12 If the water has been altered by the hands of man so that it flows in greater quantities or is directed or accelerated, then the property owner has the right to divert that water to protect his land. 13 The question before us, then, is whether or not there was evidence that the Boatmans diverted the natural flow of surface water rather than or in addition to water diverted or made more burdensome by acts or industry of man.
In addressing a matter-of-law or legal insufficiency question, this court must examine the record for evidence that supports the finding, while disregarding all evidence to the contrary. 14 If there is no evidence to support the finding, the entire record must be examined to determine whether the proposition contrary to the finding has been conclusively established as a matter of law. 15 In reviewing factual insufficiency, this court is required to consider and weigh all of the evidence in the case, and to set aside the judgment and remand the cause for a new trial if the court concludes that the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. 16 Even if the evidence might support a different result, since an appellate court is not a fact finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact. 17 A court is not authorized to interfere with the jury's resolution of conflicts in the evidence or pass on the weight or credibility of the witness' testimony. 18 As long as there is sufficient competent evidence of probative force to support the jury's finding, it must be sustained, and "[wh]ere there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive." 19
The Boatmans contend that there was only evidence that they diverted water from a man-made culvert; consequently, there was no evidence to support a § 11.086 violation. A careful review of the evidence shows, however, that the Boatman's berms also diverted surface water. Mr. Lites testified that when significant rain fall occurred, the surface water flowed across the road onto the Boatman property, which was then diverted by the Boatmans' berm. He also stated that in heavy rains, as much water crossed the road as through the culvert. The Lites' expert testified that the surface water being diverted by the Boatmans was damaging the Lites' property. He reviewed a photograph reflecting debris left by the water flow and testified as follows:
Mr. Adams: ... it indicates the water flowed over the road, which means that the culvert wasn't able to...
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