K & K Inez Props. v. Kolle
| Docket Number | 13-21-00460-CV |
| Decision Date | 28 December 2023 |
| Parties | K & K INEZ PROPERTIES, LLC, DAVID KUCERA, AND VALERIE KUCERA, Appellants, v. CLAY KOLLE AND LACY KOLLE, Appellees. |
| Court | Texas Court of Appeals |
On appeal from the 135th District Court of Victoria County Texas.
Before Justices Benavides, Tijerina, and Peña
Appellants K & K Inez Properties, LLC, (K&K), David Kucera, and Valerie Kucera[1] appeal a jury verdict in favor of appellees, Clay Kolle and Lacy Kolle. By seven issues that we have renumbered and reorganized, appellants contend that (1) the evidence is legally and factually insufficient to support many of the jury's findings, (2) the trial court erred by not including appellants' proposed question in the jury charge regarding appellees' negligence, (3) the trial court erred by granting appellees' motion to strike Victoria County as a responsible third party (RTP), (4) "the [trial] court erred in awarding [appellees] not only damages for diminished fair market value, but also damage[s] for past and future loss of use of their real property"; (5) "the [trial] court erred in awarding joint and severable liability against K&K and Valerie"; (6) "the [trial] court erred in computing the recovery of punitive damages," and (7) "[t]here is no alternative basis for affirming the trial court's judgment." We reverse and render in part and affirm in part.
Appellees, who are married, own approximately 126 acres of land northwest of Inez, Texas. They have a home on a portion of the land and use the rest of the land for grazing cattle. The evidence showed that when appellees purchased the land in 2013, the surface water drained properly on the property, which was consistent with the natural northwest to southeast pattern. Appellants owned an adjacent property to the east of appellees' property. The water from appellees' property drained to an unnamed tributary to Leona Creek, which passes through appellants' property. Appellants developed this portion of their property into a residential neighborhood known as Pura Vida. Appellants own parts of Pura Vida and maintain an easement that runs along the boundary of Pura Vida next to appellees' property.
Appellees sued appellants, in pertinent part, for nuisance and trespass; appellees also accused Valerie of engaging in a conspiracy. Specifically, appellees complained, as relevant here, that appellants improperly and illegally constructed a berm and dam on their property that impounded and pushed back surface water onto appellees' property; that the dam and berm prevented the natural flow of water through the unnamed tributary; and that appellants intentionally diverted the flow of water, causing the impoundment and accumulation of surface water on appellees' property. A jury trial was held.
After hearing the evidence, the jury found as discussed in further detail below, among other things, that appellants had caused a nuisance and Valerie had engaged in a conspiracy. The jury found that David and K&K were each forty percent responsible, and Valerie was twenty percent responsible. The jury awarded appellees economic damages of $175,000 in diminution in market value of their property and $250,000 in past and future loss-of-use damages. The jury found that David and K&K committed gross negligence. The jury ordered David to pay Clay $250,000 in exemplary damages and $500,000 in exemplary damages to Lacy, and it ordered K&K to pay Clay and Lacy each $250,000 in exemplary damages.
The trial court entered judgment on the verdict. It ordered, in pertinent part, for David to pay $170,000, K&K to pay $170,000, and Valerie to pay $85,000 in economic damages. The trial court held Valerie and K&K jointly and severally liable for the entire $425,000 of economic damages. The trial court ordered that both David and K&K each pay exemplary damages of $200,000 to Clay and $200,000 to Lacy. This appeal followed.
By their first issue and by what we construe as several sub-issues, appellants contend that "[t]he evidence was insufficient to support several key findings by the jury."
Specifically, appellants argue that there is legally and/or factually insufficient evidence to support: (1) a finding that "Valerie created a nuisance"; (2) a finding that Valerie engaged in a conspiracy; (3) the apportionment of responsibility; (4) "separate punitive damage awards against David and K&K"; and (5) the amount of punitive damages awarded.
A "no evidence" or legal insufficiency challenge is a question of law challenging the sufficiency of the evidence to support a particular fact finding. In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex. App.-El Paso 1999, no pet.). The test for legal sufficiency is "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). We review the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable factfinder could and disregarding any contrary evidence unless a reasonable factfinder could not. Id. at 821-22, 827. If the evidence at trial "would enable reasonable and fair-minded people to differ in their conclusions," we will not substitute our judgment for that of the factfinder. Id. at 822.
A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see City of Keller, 168 S.W.3d at 810. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
In reviewing a factual-sufficiency challenge to a finding on an issue on which the appellant did not have the burden of proof, we will set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding in our factual sufficiency review. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). We must weigh all the evidence, not just that evidence which supports the verdict. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Mar. Overseas Corp., 971 S.W.2d at 406-07. If we determine that the evidence is factually insufficient to support the jury's findings, we must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Dow Chem. Co., 46 S.W.3d at 242.
Whether reviewing the legal or factual sufficiency of the evidence, the jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819. The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). We must show deference to the jury's resolution of conflicts in the evidence, and we must presume that the jury resolved all conflicts in favor of the verdict. City of Keller, 168 S.W.3d at 820-21. We may not substitute our own judgment for that of the jury, even if we would reach a different answer based on the evidence. GTE Mobilnet of S. Tex. Ltd. P'ship, 61 S.W.3d at 616 (citing Mar. Overseas Corp., 971 S.W.2d at 407).
By their first issue, appellants contend that "[t]he evidence was legally and factually insufficient to support the jury's finding that Valerie created a nuisance." Specifically, appellants argue that the evidence "arguably" supports a finding that David created the alleged nuisance of flooding appellees' property by building a berm and a dam; however, there is "no evidence of any actions taken by Valerie." Appellants assert that although Valerie "may have been an owner of K&K by virtue of her marriage, or an officer, or that she was a loving wife who supported her husband's actions on the part of K&K," this evidence is "woefully insufficient to show, either directly or circumstantially, that [Valerie] played any part individually in creating a nuisance." Appellees respond that the evidence sufficiently supports the jury's finding that Valerie contributed to creating the nuisance because when K&K transferred ownership of part of appellants' property to Valerie that contained a portion of the berm, "Valerie continued to maintain the berm on her property and thus created a nuisance when the berm on the property she owned caused water to be impounded on" appellees' property.
"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 attempting to use and enjoy it." Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 593 (Tex. 2016) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).
A private nuisance includes the following elements:
(1) the plaintiff had an interest in the land; (2) the defendant interfered...
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