Vien v. Mark
| Decision Date | 10 November 2010 |
| Docket Number | No. 10-09-00318-CV,10-09-00318-CV |
| Parties | LADD VIEN, Appellant v. MARK AND MARY DEL BUONO, Appellees |
| Court | Texas Court of Appeals |
From the 40th District Court
Ellis County, Texas
MEMORANDUM OPINIONMark and Mary Del Buono filed suit against Ladd Vien and others alleging that their home was flooded because of the defendants' negligence in constructing and maintaining a driveway on Vien's property which prevented rainwater from draining off the Del Buonos' property. Following a bench trial, the court found in favor of the Del Buonos. Vien contends in six issues that: (1) he owed no legal duty to the Del Buonos; (2) the evidence is legally and factually insufficient to prove foreseeability; (3) the evidence is legally and factually insufficient to support the court's implied rejectionof the defensive theory that the flood was an act of God; (4) the evidence is legally insufficient to support the court's implied rejection of the defensive theory that Del Buonos failed to mitigate their damages; (5) the court applied the wrong measure of damages; and (6) the court erred by denying his cross-claim for contribution. We will affirm.
Background
The parties own adjoining lots in a rural area of Ellis County on Greathouse Road. The Del Buonos purchased their property from a home builder in 2001. Vien purchased the lot next door from the builder that same year because the builder "was needing some money fast."1 Phillip and Sheree Freeman (Vien's co-defendants2) bought the lot from Vien in 2005 to build a house. They asked him to take it back a year later after learning that the property was prone to flooding, and he did.
While the Freemans owned the land, Phillip constructed or improved3 a driveway on their property. He installed a twenty-four-inch culvert near Greathouse Road for drainage during the initial construction. He installed a second culvert for better drainage at Vien's request a few weeks after selling the property back to Vien.
Heavy rains in 2004 inundated the vacant lot, and the water slightly encroached on the Del Buonos' lot. Heavy rains in March 2006 again inundated the vacant lot, butthis time the waters covered most of the Del Buonos' lot as well. They could not leave that morning because their driveway was under water. Photographs admitted in evidence show that the waters came very close to the edge of the house. The Del Buonos asked that the Freemans do something to alleviate the problem. Mary Del Buono testified that Phillip and another man removed the culvert with a backhoe and the waters started draining from the property "almost instant[ly]." Phillip testified that he and some men scraped a swath across the top of the road just behind the culvert. He testified that it stopped raining about when they finished. He did not know if their work helped alleviate the water on the Del Buonos' lot but assumed that it did.
The property was flooded again in March 2007 when as much as eleven inches of rain fell within 24-36 hours. This time the Del Buonos' home flooded. They went to Vien's office the next afternoon and demanded that he "break up" the driveway so the floodwaters could drain from their property. He followed them to the property where they showed him the damage to their home. He told them he would try to get a "tractor man" to come and break up the driveway, but he never did.
The water level got as high as twelve to eighteen inches inside the Del Buonos' home, causing substantial damage. They removed the furniture and flooring. However, they did not attempt to repair the sheetrock or other interior damage. They have lived in a travel trailer on their driveway ever since.
The Del Buonos filed suit alleging that the negligence of the Freemans and of Vien proximately caused their damages. They alleged that the Freemans were negligent for constructing "an elevated drive" that "recontoured and reconstructed the elevationand flow and/or drainage of water across their property." They alleged that Vien was negligent by failing to take action to rectify this problem even though he was "aware of the diversion of water from his property to that of the Plaintiffs."
Vien answered with a general denial; asserted as affirmative defenses: (1) the acts or omissions of the Del Buonos or a third party were the sole or partial cause of the damages; (2) the Del Buonos failed to mitigate their damages; and (3) the damages were caused in whole or part by an act of God; and further alleged that the Del Buonos were contributorily negligent. Vien also filed a cross-claim against the Freemans for contribution because they "did not fully disclose the effects of the driveway."
The court found in favor of the Del Buonos and awarded $112,215 in damages. The court denied Vien's cross-claim and also denied the Del Buonos claim for exemplary damages.
Duty
Vien contends in his first issue that he owed no legal duty to the Del Buonos.4 Specifically, he argues: (1) the Del Buonos never specified in their pleadings what duty he owed them; (2) the trial court failed to enter a conclusion of law regarding what duty the court determined he owed them; (3) the Del Buonos' home was damaged by flood waters, rather than surface waters; and (4) the State has a non-delegable duty to control flood waters.
Vien did not specially except to the Del Buonos' pleadings. Thus, he has waived the right to complain of any failure on their part to plead what legal duty he owed them. See Tex. R. Civ. P. 90; Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 398 (Tex. App.—Dallas 2000, pet. denied).
Although Vien filed a request for additional findings of fact and conclusions of law, he did not request an additional conclusion of law on the issue of duty. If a party fails to request an additional finding of fact or conclusion of law on a particular issue, the party has waived its right to challenge the absence of an express finding or conclusion regarding that issue on appeal. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Tex. R. Civ. P. 298.
Surface Water
Surface water is that "which 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." Tex. Women's Univ. v. Methodist Hosp., 221 S.W.3d 267, 278 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2003, no pet.)); accord Dalon v. City of DeSoto, 852 S.W.2d 530, 538 (Tex. App.—Dallas 1992, writ denied). The Supreme Court has defined surface water thusly:
Under both the common law and the Mexican civil law, the owners of the soil on which rains may fall and surface waters gather are the proprietors of the water so long as it remains on their land, and prior to its passage into a natural water course to which riparian rights may attach.
Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 228 (1936); see Lewis v. Tex. Utils. Elec. Co., 825 S.W.2d 722, 724 (Tex. App.—Dallas 1992, writ denied) (). "[T]he chief characteristic of 'surface water' is that it does not follow a defined course or channel and does not gather into or form a natural body of water." Tex. Women's Univ., 221 S.W.3d at 278 (quoting Dietrich, 123 S.W.3d at 419); see Dalon, 852 S.W.2d at 538.
Conversely, "floodwaters are those which, generally speaking, have overflowed a river, stream or natural water course and have formed a continuous body with the water flowing in the ordinary channel." Tex. Women's Univ., 221 S.W.3d at 278 (); see Raburn v. KJI Bluechip Invs, 50 S.W.3d 699, 704 (Tex. App.—Fort Worth 2001, no pet.) ("Flood waters are waters above the regular flow of a stream."); Lewis, 825 S.W.2d at 724 (same). "Ownership of flood waters, and the duty to control such waters, is vested in the State and its political subdivisions." Lewis, 825 S.W.3d at 724 (citing TEX. CONST. art. XVI, § 59); accord Tex. Woman's Univ., 221 S.W.3d at 278.
Thus, surface waters are waters from precipitation which migrate across land until they evaporate, are absorbed, or reach a water course. Flood waters, by contrast, are waters which overflow a water course but flow with the waters in that water course. By definition, surface waters are not flood waters. See Lewis, 825 S.W.2d at 724; see also Citizens Against Landfill Location v. Tex. Comm'n on Envt'l Quality, 169 S.W.3d 258, 274 (Tex. App.—Austin 2005, pet. denied) ().
Vien argues that the waters which damaged the Del Buonos' home were "flood waters" which the State has a non-delegable duty to control. To support this argument, he relies on the testimony of two experts who both referred to the land in that area as a watershed. According to Vien, this watershed forms a watercourse, and the waters flowing in this watercourse are by definition flood waters. We disagree.
Although they did refer to the area as a watershed, neither of the experts went further and opined that it was also a watercourse. For example, Jerry Ince testified that the Del Buonos' property (and Vien's) "is at the confluence of the bottom of the [240-acre] watershed." Waters from that watershed typically drain into a culvert beside Greathouse Road. A "pond sits on that 240-acre watershed, and when the driveway was built behind to extend it behind the spillway [sic], now it removed that watershed from the road to that driveway." Thus, Ince testified that the construction of the driveway altered the natural flow of waters across the watershed. But Ince did not characterize the watershed as a...
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