Opinion issued August 7, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-13-00490-CV
                          ———————————
    PATRICK MICHAELSKI AND LYNDA MICHAELSKI, Appellants
                                      V.
  JOHN WRIGHT, PEGGY WRIGHT, GRANT DIETZ, AND REBECCA
                     DIETZ, Appellees


                  On Appeal from the 122nd District Court
                         Galveston County, Texas
                     Trial Court Case No. 09-CV-0786


                        OPINION ON REHEARING

      Appellants, Patrick Michaelski and Lynda Michaelski, filed suit against

appellees, John Wright, Peggy Wright, Grant Dietz, and Rebecca Dietz. The

Michaelskis alleged the Wrights and Dietzes flooded their home on two occasions

by impounding rain water on the Michaelskis’ property and diverting water from
the Wrights’ property onto the Michaelskis’ property. The jury found for the

appellees for both occasions. In three issues on appeal, the Michaelskis argue (1)

the trial court abused its discretion by denying their motion for mistrial, (2) the

evidence established as a matter of law that the Wrights and Dietzes violated the

Texas Water Code, and (3) the evidence is legally and factually insufficient to

support the jury’s finding that no negligence of the Wrights and Dietzes caused

damage to the Michaelskis’ home.

      On June 26, 2014, we issued our original opinion in this case. On July 11,

2014, the Michaelskis filed a motion for rehearing and a motion for en banc

reconsideration. We deny the motion for rehearing, withdraw our prior opinion

and judgment, and issue this opinion and a new judgment in their place. 1 Our

disposition remains the same.

      We affirm.

                                   Background

      Patrick and Lynda Michaelski own a home facing Clear Lake in Clear Lake

Shores, Texas. John and Peggy Wright own a home on the lot to the immediate

south of the Michaelskis. In early 2009, the Wrights hired Carlen Concepts, a


1
      Because we have made changes to the opinion, the motion for en banc
      reconsideration is denied as moot. See Brookshire Bros., Inc. v. Smith, 176
      S.W.3d 30, 33 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding motion
      for en banc reconsideration becomes moot when panel issues new opinion and
      judgment).

                                         2
company owned and run by Grant and Rebecca Dietz, to tear down and rebuild

their home. The plans for rebuilding the home involved adding enough fill to the

property to raise the ground by two feet.

      On April 18, 2009, the Michaelskis’ neighborhood experienced heavy

rainfall. About eight to ten inches fell in a four to five hour span. The first floor of

the Michaelskis’ home flooded during the rainstorm. On April 24, 2009, the

neighborhood experienced about two inches of rainfall. The Michaelskis allege

that their home flooded again on this date. On June 3, 2009, the neighborhood

received about 0.6 inches of rain. Lynda Michaelski took a video showing water

flowing from the Wrights’ property towards the Michaelskis’ property.

      The Michaelskis later filed suit against the Wrights and the Dietzes, alleging,

among other things, negligence and violations of the Texas Water Code. Before

trial, the trial court granted the Michaelski’s motion in limine, requiring the parties

to obtain approval from the court before questioning any witnesses about the

Michaelski’s homeowner’s insurance. There was evidence that Lynda Michaelski

had told her homeowner’s insurance provider that their house was flooded due to

water rising out of the city’s drainage pipes. The trial court acknowledged the

statement had relevance but required the parties to seek permission first before

discussing that statement.




                                            3
      On the third day of trial, the Michaelskis offered the testimony of Arnold

“Blu” Shields, a professional contractor and remodeling specialist.       Shields

authenticated a document, which was admitted into evidence on the Michaelskis’

request. The document was a summary of Shields’s bid proposal for work to be

done to the Michaelskis’ home. One page of the bid proposal contained the

following line: “Insured: Patrick Michaelski.”

      On the fifth day of trial, the Wrights called their expert on water flow and

flooding, Alan Berryhill. A short time into the direct examination, the following

exchange occurred:

      Q.     Did you review Ms. Michaelski’s statement taken within days
             of the storm, both storms?

      A.     It was a statement that was related to a Nationwide Insurance
             claim.

      The Michaelskis moved for mistrial and the jury was excused. The Wrights’

attorney told the trial court that he explained multiple times to Berryhill that

insurance could not be specifically mentioned. The Wrights’ attorney also told the

trial court that Berryhill had stated the reference to insurance was inadvertent.

After deliberation, the trial court declared,

      I had taken under advisement a Motion for Mistrial trial following
      witness Alan Berryhill injecting insurance in violation of the Motion
      in Limine. I’m going to respond to that motion by denying the
      Motion for Mistrial but will do the following. I’m going to read this
      instruction to the jury when they return. “Ladies and gentlemen, I’m
      ordering you to disregard the question by Mr. Chandler and answer of


                                           4
      Alan Berryhill regarding any statement made by Lynda Michaelski.
      Do not consider the question or answer for any purpose whatsoever
      during your consideration of this case. The question and answer have
      been ordered stricken from the record.” And furthermore as a
      sanction, I’m striking Alan Berryhill as a witness in this case.

The jury was brought in and the trial court gave the following instruction:

      I’m going to give you the following instruction, which I’m asking you
      to please listen to carefully and follow. I am ordering you to disregard
      the question by Mr. Chandler and answer of Alan Berryhill regarding
      any statement made by Lynda Michaelski. Do not consider the
      question or answer for any purpose whatsoever during your
      consideration of this case. This question and answer have been
      ordered stricken from the record. Thank you.

      Also during the trial, the parties disputed the source of water that flooded the

Michaelskis’ home.      The Michaelskis presented the testimony of James W.

Gartrell, Jr. as an expert on “engineering issues regarding the determination of the

natural flow of surface water and the alteration thereof.” Gartrell testified that,

before the Wrights raised the elevation of their property in 2009, 80% of the

diffuse surface water that collected in the Michaelskis’ back yard would flow onto

the Wrights’ property and then to a drain pipe beyond the Wrights’ property.

Gartrell testified that, after the Wrights elevated their property, the diffuse surface

water in their back yard became impounded and, in addition, water from the

Wrights’ property also flowed into their back yard.             He opined that the

impoundment of diffuse surface water in their back yard, along with the flow of




                                          5
diffuse surface water from the Wrights’ property into the Michaelskis’ back yard,

is what caused the flooding in the Michaelskis’ home on April 18 and April 24.

      The Wrights had not moved back into their home at the time of the storms in

question. Rebecca Dietz, who also lives in the neighborhood, went to check on the

Wrights’ house after the rain stopped on April 18. When she was at the Wrights’

property, she saw the Michaelskis at their home. Rebecca Dietz saw water in the

Michaleskis’ garage and saw water bubbling out of the drain bordering between

the Michaelskis’ and Wrights’ yards. She also testified that Patrick Michaelski

“had pointed over to the culvert and was talking about the water bubbling up out of

the catch basin and talked about how the City drain couldn’t handle the water and

all that. It was just a really bad storm.”

      Carl Dietz, Grant Deitz’s father, lives on the same street as the Michaelskis,

but at a higher elevation. Carl Dietz testified that Patrick Michaelski brought his

motorcycle over to his house to store shortly after the rain ended on April 18. Carl

Dietz testified that Patrick Michaelski said about the flooding, “It’s not the rain.

It’s the tide that’s got the sewers all clogged up with high tide water and the rain

water you got can’t get away.” Carl Deitz then drove a golf cart down to the

Michaelskis’ property. He testified that Lynda Michaelski was there and told him

about the flooding, “It’s coming up out of the drain and running right in our




                                             6
garage.” Carl Dietz drove around the neighborhood taking pictures of flooding in

various areas, but did not take pictures of the Michaelskis’ or Wrights’ property.

      Another dispute concerned whether the rainfall breached the bulkhead along

the portion of the lake across from the Michaelskis’ yard. Rebecca Dietz testified

that the water was over the bulkhead when she went to the Wrights’ property.

Lynda Michaelski testified that the bulkhead had not been breached in the area in

front of their yard, but that the lake had “crested the bulkhead a half a block away.”

Patrick Michaelski testified similarly.

      Finally, the parties disputed whether there was a swale or common ditch

between the Michaelski’s property and the Wrights’ property. The Michaelskis

and their expert, Gartrell, testified that they did not see one. The Wrights testified

that they paid the Dietzes to create one and the Dietzes testified that they, in fact,

created it. Furthermore, the video of rainfall that Lynda Michaelski took on June 3

shows water flowing from the Wrights’ property towards the Michaelskis’

property, but then turning along the border between the properties and flowing in

the direction of the swale.

      The jury returned a verdict determining that the Wrights and Dietzes did not

violate the Texas Water Code on April 18 or April 24. For the negligence claims,

the jury determined that only the Michaelskis were negligent on April 18. The jury

determined that no one was negligent on April 24.



                                          7
                                Motion for Mistrial

      In their first issue, the Michaelskis argue the trial court abused its discretion

by denying their motion for mistrial.

A.    Standard of Review

      We review a trial court’s denial of a mistrial under an abuse of discretion

standard. Lewis v. United Parcel Serv., Inc., 175 S.W.3d 811, 815 (Tex. App.—

Houston [1st Dist.] 2004, pet. denied) (citing Till v. Thomas, 10 S.W.3d 730, 734

(Tex. App.—Houston [1st Dist.] 1999, no pet.)). A trial court abuses its discretion

if it acts without reference to any guiding rules or principles.           Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

B.    Analysis

      Before trial, the trial court granted the Michaelski’s motion in limine,

requiring the parties to obtain approval from the court before questioning any

witnesses about the Michaelski’s homeowner’s insurance. There was evidence that

Lynda Michaelski had told her homeowner’s insurance provider that their house

was flooded due to water rising out of the city’s drainage pipes. The trial court

acknowledged the statement had relevance but required the parties to seek

permission first before discussing that statement.




                                          8
      On the fifth day of trial, the Wrights called their expert on water flow and

flooding, Alan Berryhill. A short time into the direct examination, the following

exchange occurred:

      Q.     Did you review Ms. Michaelski’s statement taken within days
             of the storm, both storms?

      A.     It was a statement that was related to a Nationwide Insurance
             claim.

      The Michaelskis moved for mistrial and the jury was excused. The Wrights’

attorney told the trial court he explained multiple times to Berryhill that insurance

could not be specifically mentioned and that Berryhill stated the reference to

insurance was inadvertent. After deliberation, the trial court declared,

      I had taken under advisement a Motion for Mistrial trial following
      witness Alan Berryhill injecting insurance in violation of the Motion
      in Limine. I’m going to respond to that motion by denying the
      Motion for Mistrial but will do the following. I’m going to read this
      instruction to the jury when they return. “Ladies and gentlemen, I’m
      ordering you to disregard the question by Mr. Chandler and answer of
      Alan Berryhill regarding any statement made by Lynda Michaelski.
      Do not consider the question or answer for any purpose whatsoever
      during your consideration of this case. The question and answer have
      been ordered stricken from the record.” And furthermore as a
      sanction, I’m striking Alan Berryhill as a witness in this case.

The jury was brought in and the trial court gave the following instruction:

      I’m going to give you the following instruction, which I’m asking you
      to please listen to carefully and follow. I am ordering you to disregard
      the question by Mr. Chandler and answer of Alan Berryhill regarding
      any statement made by Lynda Michaelski. Do not consider the
      question or answer for any purpose whatsoever during your



                                          9
       consideration of this case. This question and answer have been
       ordered stricken from the record. Thank you.

On appeal, the Michaelskis argue that the trial court abused its discretion by

denying their motion for mistrial.

       The injection of the issue of insurance into a trial does not automatically

create reversible error. Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 708 (Tex.

1989). Rather, a complaining party must establish that the injection of the issue of

insurance was reasonably calculated to cause and probably did cause the rendition

of an improper judgment. Dennis v. Hulse, 362 S.W.2d 308, 310 (Tex. 1962). In

carrying its burden on appeal, the appellant must overcome the presumption that

the jury followed the trial court’s instructions. See Taylor v. Am. Fabritech, Inc.,

132 S.W.3d 613, 625 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)

(holding “[w]e presume, absent evidence to the contrary, that the jury followed

such an instruction” to disregard mention of insurance).

       The Michaelskis recognize in their brief that “[u]nder ordinary

circumstances, the injection of insurance into a trial does not automatically create

reversible error.” They argue, however, that there is an exception to this rule and

that they fit within the exception. In support of this argument, the Michaelskis rely

on Socony Mobil Oil Co. v. Taylor, 388 F.2d 586 (5th Cir. 1967) and Atchison,

Topeka & Santa Fe Ry. Co. v. Acosta, 435 S.W.2d 539 (Tex. Civ. App.—Houston

[1st Dist.] 1968, writ ref’d n.r.e.).


                                         10
      In Socony, the trial court injected the topic of insurance into the case by

asking the jurors if they had any association to the insurance industry, and striking

all witnesses who did. 388 F.2d at 588. The trial court’s rationale for this was no

one “connected with the insurance casualty business can be a fair and impartial

juror in any kind of tort case.” Id. The defendant’s counsel objected to the court’s

questions and requested a curative instruction, which the trial court denied. Id.

The Fifth Circuit held, “Suggesting insurance coverage to a jury where there is no

coverage surely places an irrelevant fact before the jury; and, we think, a

prejudicial one.” Id.

      In Atchison, the plaintiff’s attorney made repeated reference to the defendant

company having insurance during closing argument. The defendant’s attorney

raised objections, seeking a mistrial or an instruction not to consider insurance in

any way. 435 S.W.3d at 549. The trial court refused both. Id. Instead, the trial

court instructed the jury “that when you consider this case, that you go only by the

court’s charge in governing your deliberation on this case and not any statement

that any attorney might make.” Id. On appeal, this Court recognized that it is error

to disclose to the jury that a defendant has liability insurance. Id. “While not

every casual or inadvertent reference to insurance in the course of a trial will

necessitate a mistrial, where the plaintiff by artful questions attempts to convey to




                                         11
the jury the information that the defendant probably is protected by indemnity

insurance, a mistrial should be declared.” Id.

       Both of these cases stand for the proposition that when the topic of insurance

is intentionally presented to the jury with no evidentiary purpose and when there is

not a proper curative instruction from the trial court, then the error is reversible.

See Socony, 388 F.2d at 588; Atchison, 435 S.W.3d at 549. This is consistent with

the proposition that the injection of the issue of insurance into a trial does not

automatically create reversible error. See Babcock, 767 S.W.2d at 708. Neither of

these cases expressly or implicitly announce any exception to this rule.         See

Dennis, 362 S.W.2d at 309 (“Respondent argues that the mention of insurance

always requires a reversal of the case, because the error is regarded as incurable.

We do not agree.”)

       Here, the trial court gave a curative instruction to the jury to disregard the

statement made by Berryhill. Accordingly, the Michaelskis must overcome the

presumption that the jury followed the trial court’s instruction and must show that

the statement probably caused the rendition of an improper judgment. See id. at

310.

       The Michaelskis argue they meet their burden “[g]iven the lack or paucity of

evidence to support the jury’s verdict.” Their argument for this is the same as their

argument in their second and third issues. As we explain below, we hold there is



                                         12
legally and factually sufficient evidence in the record to support the jury’s verdict.

Accordingly, this is not a basis for determining that the jury disregarded the trial

court’s instruction or that the statement caused the rendition of an improper

judgment.

      The Michaelskis argue that their burden on appeal is only to show that the

alleged error probably caused the rendition of an improper judgment, a lower

burden than review for legal or factual sufficiency. See id. Even so, if the jury’s

determination is legally and factually sufficient, this establishes there was some

rational basis for that determination. As a result, the jury’s verdict alone cannot

establish that an improper judgment was rendered.

      The Michaelskis also argue that the record establishes that the Wrights and

Dietzes “sought repeatedly to inject insurance into the case.” The Michaelskis rely

primarily on questions and testimony concerning whether the Michaelskis’ home

was below the base flood elevation level set by the Federal Emergency

Management Agency. As the Wrights and Dietzes point out, however, all parties

made repeated reference to the base flood elevation level and other matters the

Michaelskis allege constitutes injecting insurance into the case. Moreover, the

Michaelskis fail to identify any point in the record where they objected to these

other alleged references to insurance. See TEX. R. APP. P. 33.1(a) (establishing

prerequisites to presenting complaint for appellate review). If the Michaelskis are



                                         13
correct that these other references constituted references to insurance, then failure

to object to the other references waives any harm for the reference to which the

Michaelskis did object. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897,

907 (Tex. 2004) (holding error in admission of testimony is deemed harmless and

waived if objecting party subsequently permits same or similar evidence to be

introduced without objection).

      Similarly, the Wrights and Dietzes point out that the Michaelskis were the

first to introduce explicit evidence of insurance. During the testimony of the

Michaelskis’ witness, Shields, the Michaelskis offered and the trial court admitted

into evidence a summary of Shields’s bid proposal for work to be done to the

Michaelskis’ home. One page of the bid proposal contained the following line:

“Insured: Patrick Michaelski.”

      As the Wrights’ attorney pointed out to the trial court, Berryhill’s reference

to insurance was ambiguous. The jury would not be able to determine from the

statement who owned the insurance. As a result, to the degree that the information

could prejudice the jury, the jury would not necessarily know against whom the

information would be prejudicial. In contrast, Shields’s bid proposal specifically

identifies the Michaelskis as the insured parties. To the degree this information

would be prejudicial, the evidence that the Michaelskis put in the record would

have been more prejudicial than Berryhill’s statement.



                                         14
      Finally, the Michaelskis argue they were harmed by the trial court’s refusal

to grant a new trial because, after the trial court struck Berryhill as a witness, the

jury was not told Berryhill had been struck and “was left to incorrectly believe that

it could consider the expert’s testimony.” We agree with the Wrights and Dietzes

that the jury could consider Berryhill’s testimony other than the statement

referencing insurance.

      The trial court took two actions after Berryhill referenced insurance. First,

the trial court determined that, to cure the statement by Berryhill, it would instruct

the jury to disregard the last question and Berryhill’s answer. Second, it decided to

strike Berryhill as a witness as a sanction. It is clear from the context of the first

action that the trial court meant that, for the second action, Berryhill would not be

permitted to testify any further. Otherwise, there would be no point in instructing

the jury to disregard a specific question and answer as opposed to the whole of his

testimony.

      The trial court explained that its second action—striking Berryhill as a

witness—was done as a sanction, not as a further attempt to cure any error

resulting from the reference to insurance. Accordingly, any problems that the

Michaelskis may have had with the trial court’s chosen sanction is not relevant to

whether any harmful error was cured by the trial court’s instruction to disregard the

statement.



                                         15
      We hold the trial court did not abuse its discretion by denying the

Michaelskis’ motion for mistrial. We overrule their first issue.

     Legal Sufficiency for Section 11.086 of the Texas Water Code Claims

      In their second issue, the Michaelskis argue the evidence is legally

insufficient to support the jury’s verdict on their claims based on section 11.086 of

the Texas Water Code.

A.    Standard of Review

      “The final test for legal sufficiency must always be 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).             In

performing a legal-sufficiency review, we must credit favorable evidence if

reasonable fact finders could credit it and disregard contrary evidence unless

reasonable fact finders could not disregard it. Id. “If the evidence . . . would

enable reasonable and fair-minded people to differ in their conclusions, then [fact

finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls

within this zone of reasonable disagreement.” Id. Although the reviewing court

must consider evidence in the light most favorable to the verdict, and indulge every

reasonable inference that would support the verdict, if the evidence allows only




                                         16
one inference, neither fact finder nor the reviewing court may disregard the

inference. Id.

      Appellants attacking the legal sufficiency of an adverse finding on an issue

on which they had the burden of proof must demonstrate that the evidence

conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellants must show that there is

no evidence to support the fact finder’s finding and that the evidence conclusively

establishes the opposite of the finding. See id.

B.    Analysis

      The Michaelskis alleged the Wrights and Dietzes caused rain water to flood

their house in violation of the Texas Water Code. See TEX. WATER CODE ANN.

§ 11.086(a) (Vernon 2008). Subsection (a) of section 11.086 of the Water Code

provides, “No person may divert or impound the natural flow of surface waters in

this state, or permit a diversion of impounding by him to continue, in a manner that

damages the property of another by the overflow of the water diverted or

impounded.” Id.

      “The term surface water, as used in section 11.086, is not defined in the

Water Code, but has been interpreted by Texas courts to mean water ‘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



                                          17
flow.’” Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 277 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (quoting Dietrich v. Goodman, 123

S.W.3d 413, 417 (Tex. App.—Houston [14th Dist.] 2003, no pet.)).            Diffuse

surface water is distinct from flood waters and from waters entering or following a

defined course or channel.      Id. at 278.    Floodwaters are waters that have

overflowed a natural water course but remain a continuous part of that original part

of the water course.    Id. (citing Valley Forge Ins. Co. v. Hicks Thomas &

Lilienstern, L.L.P., 174 S.W.3d 254, 258 (Tex. App.—Houston [1st Dist.] 2004,

pet. denied)). Waters entering or following a defined course or channel are not

considered diffuse surface water. Id. This includes water in a ditch, a pond, pipes,

or a river. Id. “Thus, a landowner might divert the entire Brazos River across his

neighbor’s property without subjecting himself to liability under Section 11.086 of

the Water Code.” Dietrich, 123 S.W.3d at 419.

      In order to recover, then, the Michaelskis were required to prove that the

damage they sustained was the result of diffuse surface water and not flood water

or water from a defined course or channel. See Tex. Woman’s Univ., 221 S.W.3d

at 277. The Michaelskis’ argument to the jury was that, before the Wrights raised

the elevation of their property in 2009, 80% of the diffuse surface water that

collected in their back yard would flow onto the Wrights’ property and then to a

drain pipe beyond the Wrights’ property. The Michaelskis alleged that, after the



                                        18
Wrights elevated their property, the diffuse surface water in their back yard

became impounded and, in addition, water from the Wrights’ property also flowed

into their back yard. The Michaelskis argued that the impoundment of diffuse

surface water in their back yard along with the flow of diffuse surface water from

the Wrights’ property into the Michaelskis’ back yard is what caused the flooding

in their home on April 18 and April 24.

      In contrast, the Wrights and Dietzes argued that much of the neighborhood

was flooded on April 18 and that the Michaelskis admitted that it was the

floodwaters that damaged their property on April 18, not impounded or diverted

diffuse surface water. For April 24, they argued the Michaelskis failed to establish

sufficient evidence of flooding or damages from the flooding.

      First, we address whether the Michaelskis can recover under their theory that

water entered their back yard from the Wrights’ yard. There was conflicting

evidence about whether there was a swale or “communal ditch” between the

Michaelskis’ property and the Wrights’ property.          The Michaelskis and their

expert, Gartrell, testified that they did not see one. The Wrights testified that they

paid the Dietzes to create one, and the Dietzes testified that they, in fact, created it.

Furthermore, video evidence of rainfall on June 3—a little more than one month

after the two dates in question—show water flowing from the Wrights’ property




                                           19
towards the Michaelskis’ property, but then turning along the border between the

properties and flowing along the path of the swale.

      Based on this conflicting evidence, the jury could have reasonably

determined that there was a swale or communal ditch between the two properties.

As a result, any water that flowed into this ditch between the two properties

stopped being diffuse ground water. 2 See Tex. Woman’s Univ., 221 S.W.3d at 277.

Accordingly, even if the Michaelskis were damaged by this water, they cannot

recover against the Wrights for this damage under section 11.038 of the Texas

Water Code. See id.

      The same is true for any flood waters extending from the communal ditch.

Flood waters extending from a defined watercourse are not recoverable under

section 11.038. See id. The Michaelskis’ only remaining basis for recovery, then,

is if the record establishes as a matter of law that the change to the Wrights’

property impounded water on the Michaelskis’ property that previously had flowed

onto the Wrights’ property and that the impounded water was not a part of the

floodwaters.   The Michaelskis argue they established this as a matter of law

because their expert testified that the Michaelskis’ home was flooded by the


2
      In their motion for rehearing, the Michaelskis argue that our opinion is in conflict
      with Texas Woman’s University v. The Methodist Hospital, 221 S.W.3d 267 (Tex.
      App.—Houston [1st Dist.] 2006, no pet.). They request that, if we disagree that
      the two opinions are in conflict, we provide further guidance on the distinction
      between the two. We provide that guidance below.

                                           20
impounded water and not by any flood waters and because their expert’s testimony

was established as a matter of law.

      “The general rule is that opinion testimony, even when uncontroverted, does

not bind the jury unless the subject matter is one for experts alone.” Uniroyal

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex. 1998). A subject

matter is considered one for experts or skilled witnesses alone when “the jury or

court cannot properly be assumed to have or be able to form correct opinions of

their own based upon evidence as a whole and aided by their own experience and

knowledge of the subject of inquiry.” McGalliard v. Kuhlmann, 722 S.W.2d 694,

697 (Tex. 1986).

      The Michaelskis argue that Gartrell’s testimony—“engineering issues

regarding the determination of the natural flow of surface water and the alteration

thereof”—is the province of expert testimony alone and that, accordingly,

Gartrell’s testimony was established as a matter of law. Regardless of whether an

expert is required to testify specifically about the natural flow of surface water

based on measurements of elevation, it is not always necessary to have expert

testimony to establish flooding and its causes.

      “Generally, lay testimony establishing a sequence of events which provides

a strong, logically traceable connection between the event and the condition is

sufficient proof of causation.” Morgan v. Compugraphic Corp., 675 S.W.2d 729,



                                         21
733 (Tex. 1984). In contrast to what Gartrell testified should have happened with

the diffuse surface water and flood water, there was testimony from multiple

witnesses about what actually did happen with the diffuse surface water and

floodwater. A witness does not need to be an expert to testify about what he or she

observed. See TEX. R. EVID. 701 (permitting lay witness to express opinions and

inferences “rationally based on the perception of the witness”); Morgan, 675

S.W.2d at 733 (“Lay testimony is adequate to prove causation in those cases in

which general experience and common sense will enable a layman to determine,

with reasonable probability, the causal relationship between the event and the

condition.”). Rebecca Dietz testified that she saw the Michaelskis immediately

after the storm on April 18. She saw water in the Michaleskis’ garage and saw

water bubbling out of the drain bordering between the Michaelskis’ and Wrights’

yards. She testified that Patrick Michaelski “had pointed over to the culvert and

was talking about the water bubbling up out of the catch basin and talked about

how the City drain couldn’t handle the water and all that. It was just a really bad

storm.”

      Another resident of the neighborhood, Carl Dietz, testified that Patrick

Michaelski brought his motorcycle over to his house to store shortly after the rain

ended on April 18. Carl Dietz testified that Patrick Michaelski said about the

flooding, “It’s not the rain. It’s the tide that’s got the sewers all clogged up with



                                         22
high tide water and the rain water you got can’t get away.” Carl Dietz testified that

Lynda Michaelski told him about the flooding, “It’s coming up out of the drain and

running right in our garage.”

      All of this testimony contradicts what Gartrell said should have happened

based on his determinations of rainfall, high tide, and wind effects on April 18.

Accordingly, Gartrell’s testimony is contradicted. Because it was contradicted, the

Michaelskis cannot claim that it was established as a matter of law. See Dow

Chem., 46 S.W.3d at 241 (holding party that bore burden of proof at trial must

establish on appeal that no evidence supports fact finder’s finding and that

evidence conclusively establishes opposite of finding). As a result, what caused

the flooding to the Michaelskis’ home on both dates was a question of fact for the

jury to determine. We hold the Michaelskis did not establish as a matter of law

that any impounding of diffuse surface water created as a result of the Wrights’

changes to their property caused the harm the Michaelskis suffered.

      In their motion for rehearing, the Michaelskis argue that we have relied on

“Texas Woman’s University for the exact opposite of its holding: surface water is

no longer diffused surface water and becomes flood water once it is partially

diverted by an artificial ‘swale’ so shallow that it is difficult to even perceive.”




                                         23
They ask that, if we disagree with this argument, we provide further guidance on

the distinction between this case and Texas Woman’s University. 3

      The source of the Michaelskis’ confusion is their conflation of two distinct

legal theories discussed in Texas Woman’s University concerning when rainwater

loses it designation as diffuse surface water. A claim under section 11.086 of the

Texas Water Code is only actionable if the damages are caused by diffuse surface

water. Tex. Woman’s Univ., 221 S.W.3d at 277. Accordingly, when water ceases

being diffuse surface water is a critical inquiry.

      We held in Texas Woman’s University that, “‘[w]hen rainfall is under

control, either by ditches, tanks, ponds, or pipes, it is no longer considered

[diffuse] surface water.’” 4 Id. at 278 (quoting Dalon v. City of DeSoto, 852

S.W.2d 530, 538–39 (Tex. App.—Dallas 1992, writ denied)).             We observed that

the record in that case established that the water in question “was never under the

control of a river, stream, ditch, tank, pond, bank, pipe, bed, or channel. Rather . . .


3
      The Michaelskis also challenge our holding that their expert’s testimony did not
      establish as a matter of law that any diffuse surface water impounded in their back
      yard caused them damage. We have sufficiently addressed this matter and do not
      address it further.
4
      Water joining floodwater is another way for water to lose its designation as diffuse
      surface water. Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 279
      (Tex. App.—Houston [1st Dist.] 2006, no pet.). “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.”
      Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, L.L.P., 174 S.W.3d 254, 258
      (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

                                           24
the water was simply rain water running off and moving by gravity.” Id. at 279

(internal quotations omitted). Accordingly, because it did not come under control

of a defined waterway, the water did not lose its designation as diffuse surface

water. See id.

       A separate argument that we considered in Texas Woman’s University was

whether the water lost the designation as diffuse surface water because it was

“touched by the hands of man.” Id. at 281. The Methodist Hospital argued that

“once diffuse[] surface water becomes concentrated or channeled by manmade

changes to the natural formation of the land, the water . . . is no longer diffuse[]

surface water and is instead floodwater.” Id. We rejected this argument. Id. We

held that the “untouched by the hands of man” exception was not supported in the

case law and that such an exception would render section 11.06 meaningless. Id.

       The Michaelskis are attempting to create a new exception from our rejection

of that exception. In essence, they argue that, because the ditch between their

properties was manmade, water entering into it must remain diffuse surface water.

But this is not what we held in Texas Woman’s University. We held that whether

water has been “touched by human hands” is irrelevant to our analysis. See id. In

contrast, whether diffuse surface water comes under control of a defined waterway

is a critical inquiry. See id. at 277.




                                         25
      The critical factor in this case to our determination that water coming from

the Wrights’ property to the Michaelskis’ property ceased being diffuse surface

water was that the jury could have reasonably determined that a ditch existed

between the two properties. As a result, water that flowed into this ditch stopped

being diffuse ground water. Id. This is true regardless of whether the ditch was

manmade or naturally existing.

      We overrule the Michaelskis’ second issue.

              Legal and Factual Sufficiency for Negligence Claims

      In their third issue, the Michaelskis argue the evidence is legally and

factually insufficient to support the jury’s finding that no negligence of the Wrights

and Dietzes caused damage to the Michaelskis’ home.

A.    Standard of Review

      The standard of review for legal sufficiency has been stated above. “When a

party attacks the factual sufficiency of an adverse finding on an issue on which she

has the burden of proof, she must demonstrate on appeal that the adverse finding is

against the great weight and preponderance of the evidence.” Dow Chem., 46

S.W.3d at 242.     To determine whether the evidence is factually sufficient to

support a finding, we must consider and weigh all evidence that was before the

trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We can set aside a

verdict only if the evidence is so weak or if the finding is so against the great



                                         26
weight and preponderance of the evidence that it is clearly wrong and unjust. Dow

Chem., 46 S.W.3d at 242.

      “However, we remain mindful that the jury is the sole judge of the

credibility of the witnesses and the weight to be given their testimony.” Urista v.

Bed, Bath, & Beyond, Inc., 245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)).

It is the province of the jury to resolve any inconsistencies in the evidence. Id.

B.    Analysis

      The jury charge asked the jury to determine whose negligence proximately

caused the damage to the Michaelskis’ home. The jury determined that, for the

flooding on April 18, the Michaelskis were the only negligent parties and that each

of them were 50% responsible for the damage to their home. The Michaelskis

argue the evidence is legally and factually insufficient to show that they bore the

responsibility for the flooding in their home on this date.

      Even if we accepted this argument, however, the Michaelskis still cannot

prevail. The jury was instructed on acts of God as it pertains to negligence,

describing it as an occurrence “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.” See Dillard v. Tex. Elec. Co-op., 157 S.W.3d 429,

432 n.5 (Tex. 2005) (same) (citing COMM. ON PATTERN JURY CHARGES, STATE BAR



                                          27
OF   TEX., TEXAS PATTERN JURY CHARGES: GENERAL NEGLIGENCE & INTENTIONAL

PERSONAL TORTS PJC 3.5 (2012)). The jury found that neither the Wrights nor the

Dietzes committed any negligent act that proximately caused the Michaelskis’

harm.

        Even if we agreed with the Michaelskis, then, that there was no evidence

that the Michaelskis were negligently responsible for the harm suffered by their

home, this does not refute the evidence that the flooding to their home was an act

of God and not the result of any negligent act committed by the Wrights or the

Dietzes. Accordingly, it does not establish that the jury’s verdict was incorrect as

to the Wrights and Dietzes. See Dow Chem., 46 S.W.3d at 241 (holding party that

bore burden of proof at trial must establish on appeal that no evidence supports fact

finder’s finding and that evidence conclusively establishes opposite of finding);

Smith v. Moody Gardens, Inc., 336 S.W.3d 816, 820 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (holding unless great weight and preponderance of evidence

shows that plaintiff’s injury was caused in fact by defendant’s breach of duty, we

must uphold the jury’s verdict).

        There was testimony in the record that the Michaelskis’ neighborhood

received eight to ten inches of rain in four to five hours on April 18.          The

Michaelskis’ property is across the street from Clear Lake, with no houses on the

other side of the street. Rebecca Dietz testified that she saw the waters of Clear



                                         28
Lake breach the bulkhead along the beach across the street from the Michaelskis’

home. Witnesses testified that both Patrick and Lynda Michaelski identified the

source of the flooding in their home as flood waters rising out of the drain pipe.

Photographic evidence of the Michaelskis’ neighborhood showed extensive

flooding in the neighborhood.

      We hold that, regardless of whether the jury was correct to determine that

any negligence on the part of the Michaelskis harmed their home on April 18, there

is legally and factually sufficient evidence to support the jury’s finding that no

negligence of the Wrights and Dietzes caused damage to the Michaelskis’ home.

We overrule the Michaelskis’ third issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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