WITHDRAWN 12/15/2010 IN THE TENTH COURT OF APPEALS
No. 10-09-00318-CV
LADD VIEN, Appellant v.
MARK AND MARY DEL BUONO, Appellees
From the 40th District Court Ellis County, Texas Trial Court No. 74,750
MEMORANDUM OPINION
Mark 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 rejection of 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, but
1 Vien is a real estate agent.
2 Although the court found the Freemans jointly and severally liable, they did not perfect an appeal.
3 The parties dispute whether Phillip improved an existing driveway or constructed a new one. In Finding of Fact No. 16, the court found that he “constructed” the driveway. In the final analysis, this issue is irrelevant.
Vien v. Del Buono Page 2 this 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 elevation
Vien v. Del Buono Page 3 and 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.
4 The elements of a negligence claim are a duty, a breach of that duty, and damages proximately caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Vien v. Del Buono Page 4 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.
Vien v. Del Buono Page 5 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) (“A private
landowner has the right to control, retain, and use surface waters.”). “[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 (quoting
Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, L.L.P., 174 S.W.3d 254, 258 (Tex.
App.—Houston [1st Dist.] 2004, no pet.)); 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) (“Diffuse surface water belongs to the owner of
Vien v. Del Buono Page 6 the land on which it gathers, so long as it remains on that land prior to its passage into a
natural watercourse”).
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 watercourse. And we hold as a matter of law that it is
not. See Tex. Woman’s Univ., 221 S.W.3d at 279 (“Opinions from our sister courts
suggest that a watershed itself does not constitute a watercourse.”) “Otherwise, as soon
as rain hit ‘any piece of land,’ the rain would automatically lose its classification of
diffused surface water.” Id.; see also Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 787 (1925)
(“in order to constitute a water course, there must be something more than mere surface
drainage over the entire face of a tract of land”).
Vien v. Del Buono Page 7 Duty Owed
Under the common law, adjoining landowners have interrelated rights and
duties with regard to surface water. The landowner whose property lies at a higher
elevation cannot “burden adjacent lands with surface water he accumulate[s] or
discharge[s] except in the same manner in which it would naturally flow; and the lower
estate [i]s obliged to receive the surface waters as they naturally flow[ ].” Bily v. Omni
Equities, Inc., 731 S.W.2d 606, 610 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d
n.r.e.) (citing Kraft v. Langford, 565 S.W.2d 223, 228 (Tex. 1978)). As the Supreme Court
stated in Kraft, “a landowner rule [can]not burden adjacent lands with surface water he
accumulate[s] or discharge[s] except in the same manner in which it would naturally
flow.” Kraft, 565 S.W.2d at 228; see also Bunch v. Thomas, 121 Tex. 225, 49 S.W.2d 421, 423
(1932) (“a landowner cannot collect surface water into an artificial shannel [sic] or
volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor,
to the substantial injury of the latter”).5
Focusing in particular on the lower landowner (here, Vien), Texas courts have
characterized the obligation to receive surface waters as they naturally flow as a legal
duty. See, e.g., Stukes v. Bachmeyer, 249 S.W.3d 461, 466 (Tex. App.—Eastland 2007, no
pet.); Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 469 (Tex. App.—Texarkana
1998, pet. denied); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876
5 Section 11.086 of the Water Code imposes a similar statutory duty on landowners. See TEX. WATER CODE ANN. § 11.086(a) (Vernon 2008); Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978); Boatman v. Lites, 970 S.W.2d 41, 44 (Tex. App.—Tyler 1998, no pet.); Bily v. Omni Equities, Inc., 731 S.W.2d 606, 610 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.). However, the Del Buonos did not plead a statutory cause of action.
Vien v. Del Buono Page 8 S.W.2d 940, 950 (Tex. App.—Beaumont 1994, writ denied); see also Wilson v. Hagins, 50
S.W.2d 797, 799 (Tex. Comm’n App. 1932, judgm’t adopted) (lower landowners “owe a
service” to receive surface waters); Cone v. City of Lubbock, 431 S.W.2d 639, 649 (Tex. Civ.
App.—Amarillo 1968, writ ref’d n.r.e.) (same). Thus, Vien owed a common law duty to
the Del Buonos to allow surface waters to flow across his property without hindrance.
The waters which inundated the Del Buonos’ home were surface waters not
flood waters. Therefore, the State owed no duty to regulate the flow of those waters,
and Vien owed a duty to the Del Buonos to allow those waters to flow across his
property without hindrance. Accordingly, we overrule Vien’s first issue.
Foreseeability
Vien contends in his second issue that the evidence is legally and factually
insufficient to support the court’s implied finding of foreseeability.
For a legal insufficiency review, we must determine “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 “must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not.” Id.
For a factual insufficiency review, reversal is required only if the challenged
finding is “so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust.” Byrd v. Estate of Nelms, 154 S.W.3d 149, 156-57 (Tex. App.—Waco
2004, pet. denied) (quoting Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).
Vien v. Del Buono Page 9 Foreseeability is one of the two sub-elements of proximate cause. W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 551 (Tex. 2005). Foreseeability “requires that a person of
ordinary intelligence should have anticipated the danger created by a negligent act or
omission.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995);
accord Barton v. Whataburger, Inc., 276 S.W.3d 456, 463 (Tex. App.—Houston [1st Dist.]
2008, pet. denied). “A danger is foreseeable if its general character might reasonably be
anticipated, if not its precise manner.” Barton, 276 S.W.3d at 463; accord Doe, 907 S.W.2d
at 478.
Here, the trial court made the following findings of fact pertinent to the
foreseeability issue:
12. The Court further finds that Defendants Freeman had actual and direct knowledge that the changes made by Defendants Freeman had caused flooding on Plaintiff’s [sic] property prior to the damage suffered by Plaintiffs.
13. The Court finds that Defendants Freeman informed Defendant Vien of the problems caused by Defendants Freeman prior to Defendant Vien’s purchase of the property from Defendants Freeman.
Mary Del Buono testified that when the Freemans purchased their lot in 2005 she
informed them the property had some “drainage issues” and gave them some pictures
depicting the flooding in 2004. The Freemans personally observed the water on the Del
Buonos’ lot in 2006 when the rainwaters covered most of their lot and came close to
their house.
Sheree Freeman testified that she told Vien they wanted him to take the lot back
because “the place floods. We can’t build a house here.” She told him that the Del
Vien v. Del Buono Page 10 Buonos had threatened to sue because of the incident in 2006. As part of the
negotiations for Vien to repurchase the property, he asked them to install a second
culvert under the driveway.
This evidence is such as “would enable reasonable and fair-minded people“ to
find that it was foreseeable the driveway on Vien’s lot would cause the Del Buonos’
home to be flooded in a heavy rainstorm. See Tex. Woman’s Univ., 221 S.W.3d at 284; see
also City of Keller, 168 S.W.3d at 827. Thus the evidence is legally sufficient to support
the court’s implied finding on the issue of foreseeability.
The contrary evidence is that their home had not flooded during the heavy rains
in 2004 or 2006. In addition, Vien denied that the Freemans warned him of any flooding
problems. Nevertheless, we conclude that the implied finding of foreseeability is not
“so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.” See Byrd, 154 S.W.3d at 156-57. Thus, we overrule Vien’s second issue.
Act of God
Vien complains in his third issue that the evidence is legally and factually
insufficient to support the court’s implied rejection of his defensive theory that the
flooding of the Del Buonos’ home was an act of God.
“An occurrence is caused by an act of God if it is caused directly and exclusively
by the violence of nature, without human intervention or cause, and could not have
been prevented by reasonable foresight or care.” Dillard v. Tex. Elec. Coop., 157 S.W.3d
429, 432 n.5 (Tex. 2005) (quoting COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX.,
TEXAS PATTERN JURY CHARGES—GENERAL NEGLIGENCE & INTENTIONAL PERSONAL TORTS
Vien v. Del Buono Page 11 PJC 3.5 (2003)). “[W]hat is meant by allusion to the absence of human intervention is
not the absence of all human involvement but the absence of human negligence
proximately causing the injury.” McWilliams v. Masterson, 112 S.W.3d 314, 321 (Tex.
App.—Amarillo 2003, pet. denied).
The Del Buonos’ expert, Ince, testified that in his opinion the elevated driveway
was a proximate cause of the flooding of their house. Vien’s expert James McDill stated
in his report, “There is no denying that the installation of a 24” corrugated metal pipe
culvert, combined with the existing driveway, created an obstruction which allowed
floodwaters into the DEL BUONO HOUSE in March of 2007.” He further opined that, if
the elevated driveway did not obstruct the ditch running along Greathouse Road,
“there is a more than reasonable chance that these floodwaters from this particular
storm would have also backed up into the DEL BUONO HOUSE.” During cross-
examination, McDill agreed that “the driveway is the culprit here, not the culvert.” He
also testified that the driveway and culvert “were the conditions that created allowance
of the flood waters into the Del Buono house.”
The experts agreed that the elevated driveway caused the Del Buonos’ home to
flood. This evidence is such as “would enable reasonable and fair-minded people“ to
reject the defensive theory that the flooding was caused “directly and exclusively [by]
natural causes, without human intervention.” See Macedonia Baptist Church v. Gibson,
833 S.W.2d 557, 560 (Tex. App.—Texarkana 1992, writ denied) (emphasis added).
The only contradictory evidence Vien refers to is the unusual severity of flooding
experienced by Ellis County during this storm. The county was declared a disaster area
Vien v. Del Buono Page 12 by the governor, and that precinct was purportedly “the hardest hit.”6 While
acknowledging the unusual severity of the flooding, we cannot say that the court’s
implied rejection of the act of God theory is “so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust.” See Byrd, 154 S.W.3d at 156-57. Thus,
we overrule Vien’s third issue.
Failure to Mitigate Damages
Vien argues in his fourth issue that the evidence is legally insufficient to support
the court’s implied rejection of his defensive theory that the Del Buonos failed to
mitigate their damages.7
A plaintiff must mitigate his damages if he can do so with “trifling expense or
with reasonable exertions.” Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 857 (Tex.
1999) (quoting Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426
(Tex. 1995)). The defendant bears the burden of proof on this issue and must show the
extent to which damages were increased by the failure to mitigate. Young v. Thota, 271
S.W.3d 822, 830 (Tex. App.—Fort Worth 2008, pet. denied); see Alamo Cmty. Coll. Dist. v.
Miller, 274 S.W.3d 779, 788 (Tex. App.—San Antonio 2008, no pet.).
The court admitted two repair estimates tendered by the Del Buonos. The first
was prepared by Stanley Restoration in April 2007 and estimated total cost of repair and
restoration to be $37,200. Mary testified that this estimate was based on replacing the
6 According to a newspaper report offered in evidence, the roads in that precinct were “the most affected” by the heavy rains. 7 Vien specifically contends that the evidence conclusively establishes that the Del Buonos failed to mitigate their damages. This is a legal-insufficiency claim. See Hunter v. Ford Motor Co., 305 S.W.3d 202, 205 (Tex. App.—Waco 2009, no pet.).
Vien v. Del Buono Page 13 lower two feet of sheetrock throughout the house in addition to flooring and other
necessary repairs. She also testified that they could not afford to pay for this, so they
instead pulled out the carpet and other flooring. Mark Del Buono testified that Mr.
Doyle from Stanley Restoration advised them not to remove the water-soaked
sheetrock. Rather, they were advised to keep air circulating through the house with
fans and spray the walls with bleach to minimize the chance of mold forming, and they
followed these recommendations. Mark likewise testified that they could not afford to
have the repairs done that were recommended by Stanly Restoration. Mark and Mary
both testified that they were concerned about their daughter’s asthma and did not want
to open up the walls by removing sheetrock because it might exacerbate her condition.
Mold did form in the house, and the second estimate took this into account,
requiring the removal and replacement of all the sheetrock and other steps to remediate
the mold growth. The second estimate, prepared by Southland Construction Company
in January 2009, estimated total costs of restoration and remediation to be $83,700.
Vien argued at trial and contends on appeal that the Del Buonos should have
mitigated their damages by removing the water-soaked sheetrock.8
From the evidence, “reasonable and fair-minded people“ could have found that:
(1) the Del Buonos could not afford to have the sheetrock removed as Vien contends
they should have; (2) they reasonably followed Mr. Doyle’s advice in this regard; (3)
they were not equipped to remove the sheetrock themselves; and (4) removal of the
8 Vien also suggests that the Del Buonos’ failure to inform him of their intentions regarding the repair of their home and their failure to purchase flood insurance are relevant to this issue. However, he does not direct us to any legal authorities to support this contention, and our research has disclosed none.
Vien v. Del Buono Page 14 sheetrock would have required more than mere “trifling expense” or “reasonable
exertions.” See Gunn Infiniti, 996 S.W.2d at 857; Mondragon v. Austin, 945 S.W.2d 191,
195 (Tex. App.—Austin 1997, no pet.). Thus, the evidence is legally sufficient to support
the court’s implied rejection of the defensive theory that the Del Buonos failed to
mitigate their damages.
Vien argues in his brief that he is entitled to rendition of judgment on this issue,
because the evidence (as he views it) conclusively establishes that the Del Buonos failed
to mitigate their damages. We have rejected this contention. He argues in the
alternative that the case should be reversed and remanded “for a proper determination
of damages taking into account the Del Buonos’ failure to mitigate.” We construe this
as a request to remand for a fact finder to determine how much of the Del Buonos’
damages could have been avoided if they had removed the sheetrock as he contends
they should have.
Vien bore the burden of proving the extent to which the Del Buonos’ damages
were increased by the failure to mitigate. See Young, 271 S.W.3d at 830. Even if we were
to conclude that the evidence supports Vien’s assertion that they should have removed
the water-soaked sheetrock, Vien did not conclusively establish that the additional costs
identified in the subsequent repair estimate were due solely to their failure to remove
the sheetrock. Nor did he request a finding on this issue. See Estate of Clifton v. S. Pac.
Transp. Co., 709 S.W.2d 636, 638-39 (Tex. 1986) (defendant not entitled to remand where
it failed to request additional deliberation for finding on co-defendant’s percentage of
responsibility); Kansas City S. Ry. v. Mo. Pac. R.R., No. 09-06-00255-CV, 2008 Tex. App.
Vien v. Del Buono Page 15 LEXIS 5330, at *11-13 (Tex. App.—Beaumont July 17, 2008, pet. denied) (mem. op.)
(defendant failed to preserve its factual sufficiency complaints by failing to request
additional findings of fact).
Accordingly, we overrule Vien’s fourth issue.
Proper Measure of Damages
Vien contends in his fifth issue that the court failed to use the proper measure of
damages with regard to the court’s award of $12,500 for the contents of the home.
Although Vien contends that the court used the wrong measure of damages, his
contention really is that the Del Buonos “did not submit evidence at trial of the loss in
market value of their furniture.”
Vien suggests that the proper measure of damages is the diminution in market
value. However, a different measure applies for household furniture and other
contents which have no recognized market value.
The law of damages distinguishes between marketable chattels possessed for purposes of sale and chattels possessed for the comfort and well-being of their owner. In the instance of the former it judges their value by the market price. In the instance of the latter it measures their loss, not by their value in a secondhand market, but by the value of their use to the owner who suffers from their deprivation. The latter measure is employed in the case of household furniture, family records, wearing apparel, personal effects, and family portraits.
Allstate Ins. Co. v. Chance, 590 S.W.2d 703, 703 (Tex. 1979) (per curiam) (quoting Crisp v.
Sec. Nat’l Ins. Co., 369 S.W.2d 326, 329 (Tex. 1963)); see Gulf State Utils. Co. v. Low, 79
S.W.3d 561, 566 (Tex. 2002); Burns v. Rochon, 190 S.W.3d 263, 270 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). More succinctly, “[t]he measure of damages for the destruction
Vien v. Del Buono Page 16 of such items is the ‘actual worth or value of the articles to the owner for use in the
condition in which they were at the time of [the injury] excluding any fanciful or
sentimental considerations.’” Gulf State Utils., 79 S.W.3d at 566 (quoting Crisp, 369
S.W.2d at 328).
“It is well settled that a property owner may opine about the property’s value.”
Id.; Burns, 190 S.W.3d at 270-71. “[T]he trier of fact may consider, in determining the
actual value to the owner at time of loss, the original cost, cost of replacement, opinions
of qualified witnesses, including the owner, the use to which the property was put, as
well as any other reasonably relevant facts.” Gulf State Utils., 79 S.W.3d at 566 (quoting
Allstate Ins. Co., 590 S.W.2d at 704). “[T]he jury has discretion to award damages within
the range of evidence presented at trial.” Id. (citing Price Pfister, Inc. v. Moore & Kimmey,
Inc., 48 S.W.3d 341, 352 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)).
The Del Buonos testified and presented documentary evidence that the value of
the household contents that were permanently damaged by the floodwaters was
approximately $26,000.9 Vien is correct that they referred to these valuations
inconsistently as either market value or replacement cost. Vien cross-examined them
about the basis for their valuations, but he presented no evidence suggesting a different
value.
The court’s award of $12,500 in damages for household contents was “within the
range of evidence presented at trial.” Id. ; see Burns, 190 S.W.3d at 270-71; Hironymous v.
9 Plaintiffs’ Exhibit No. 8 is an itemized list of the household contents divided by room with subtotals included for the damaged items in each room (and a barn on the property). According to our calculations, the total loss indicated (including the contents of the barn) is $25,917.54. Mary testified that the total loss was $25,931.65.
Vien v. Del Buono Page 17 Allison, 893 S.W.2d 578, 582-83 (Tex. App.—Corpus Christi 1994, writ denied).
Accordingly, we overrule Vien’s fifth issue.
Contribution
Vien claims in his sixth issue that the court erred by concluding that he is not
entitled to “contribution and/or indemnity from the Freemans.”10
The judgment decrees that Vien and the Freemans are jointly and severally liable
for the Del Buonos’ damages.11 The judgment denied Vien’s cross-claim against the
Freemans for contribution. In Finding of Fact No. 1, the court similarly found them
jointly and severally liable and that Vien is not entitled to contribution. In Finding of
Fact No. 16, the court found that Vien is not entitled to contribution because he “was
aware of the flooding problem caused by the road constructed by Defendant Freeman
prior to the purchase from Defendants Freeman.”
Vien cites section 33.016 of the Civil Practice and Remedies Code as the basis
for relief. Section 33.016 applies to claims against a “contribution defendant,” which is a
10 The terms contribution and indemnity are often used interchangeably, but they do not mean the same thing. See George C. Hanks, Jr., Contribution and Indemnity after HB 4, 67 TEX. B.J. 288, 289 (2004). Contribution refers to the payment by each tortfeasor of his proportionate share of the plaintiff’s damages. See Gus M. Hodges, Contribution and Indemnity Among Tortfeasors, 26 TEX. L. REV. 150, 150 (1947). Conversely, indemnity refers to the “shifting [of] the entire burden of loss from one tortfeasor to another.” B & B Auto Supply, Sand Pit & Trucking Co. v. Cent. Freight Lines, Inc., 603 S.W.2d 814, 816 (Tex. 1980). Because of Texas’s proportionate responsibility statutes, “the common law right of indemnity is no longer available between joint tortfeasors in negligence cases.” Id. at 817.
11 Other than an intentional tortfeasor whose conduct violates one of fourteen penal statutes listed in section 33.013(b)(2), a defendant may be found jointly and severally liable only if his percentage of responsibility is found to be greater than fifty percent. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(b) (Vernon 2008). Under this general principle of joint and several liability, it is mathematically possible for only one defendant to be jointly and severally liable. See Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 233 (Tex. App.—San Antonio 2009, pet. denied). Thus, it was improper for the court to find both Vien and the Freemans jointly and severally liable. However, the Freemans have not perfected their own appeal.
Vien v. Del Buono Page 18 defendant “from whom the claimant seeks no relief at the time of submission.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 33.016 (Vernon 2008). Here, however, the Del Buonos
sought relief against both the Freemans and Vien, and the court found them both liable.
Thus, section 33.016 does not apply.
Instead, section 33.015 governs contribution as between defendants who are
parties to the judgment. Id. § 33.015 (Vernon 2008). A defendant’s right of contribution
is based on the respective percentage of responsibility assigned to each party. Id.
However, Vien did not seek a finding on the respective percentages of responsibility for
each party. Vien’s failure to seek such a finding results in a waiver of any error in the
denial of his cross-claim for contribution. See Estate of Clifton, 709 S.W.2d at 638-39;
Kansas City S. Ry., 2008 Tex. App. LEXIS 5330, at *11-13. Accordingly, we overrule
Vien’s sixth issue.
Having overruled the issues presented, we affirm the judgment.
FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed November 10, 2010 [CV06]
Vien v. Del Buono Page 19