                  COURT OF APPEALS
                  SECOND DISTRICT OF TEXAS
                       FORT WORTH


                      NO. 02-11-00392-CV

PASQUINELLI PORTRAIT HOMES-                     APPELLANTS
DURANGO RIDGE LP, PORTRAIT
HOMES-TEXAS, L.L.C. AND
PASQUINELLI, GP, AND
BROCKETTE/DAVIS/DRAKE, INC.
                                 V.

SECURLOCK AT BEDFORD, LTD.                        APPELLEE




SECURLOCK AT BEDFORD, LTD.                       APPELLANT

                                 V.

PASQUINELLI PORTRAIT HOMES-                      APPELLEES
DURANGO RIDGE LP, PORTRAIT
HOMES-TEXAS, L.L.C. AND
PASQUINELLI, GP

                              ----------

      FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                              ----------
                           MEMORANDUM OPINION1

                                           ----------

      Pasquinelli Portrait Homes-Durango Ridge LP, Portrait Homes-Texas,

L.L.C.,      and    Pasquinelli,      GP      (collectively,   Portrait   Homes)   and

Brockette/Davis/Drake, Inc. (BDD) appeal the trial court’s judgment against them

in favor of appellee Securlock at Bedford, Ltd. We affirm in part and reverse and

remand in part. Securlock cross-appeals the trial court’s orders granting Portrait

Homes’s motions for directed verdicts. We affirm.

                                   Background Facts

      Securlock owns and operates a storage facility in Bedford, Texas. Portrait

Homes owned property adjacent to the storage facility known as the Durango

Ridge Addition. In 2004, Portrait Homes hired BDD to design a storm water

drainage system for its property. The drainage system diverted surface water

through underground pipes to a detention pond and then to a box culvert in front

of Securlock’s property. Portrait Homes submitted BDD’s plans to the City of

Bedford and to the Texas Department of Transportation for approval in late 2004.

In order to create the system, Portrait Homes and Securlock entered into a

consent agreement in which Securlock allowed Portrait Homes to enter

Securlock’s property to remove existing water pipelines and headwalls and to




      1
          See Tex. R. App. P. 47.4.


                                               2
install larger ones.   In early 2005, Portrait Homes constructed the system

according to BDD’s design.

      On July 5, 2006, Securlock discovered flooding at its property. Securlock

found that Portrait Homes had placed erosion control devices on two gutter inlets

running perpendicular to the storage facility. The devices prevented debris from

entering the underground drainage system, but it also prevented the rainwater

from draining properly.   Portrait Homes removed the devices after Securlock

complained.

      Securlock reported no problems with flooding for approximately six

months. However, on December 30, 2006, Securlock’s property began flooding

again, and it continued to flood during every rainstorm through July 2007.

Securlock hired engineers to investigate the flooding. They reported a number of

problems with Portrait Homes’s drainage system that they believed caused the

flooding. Securlock filed suit against Portrait Homes, BDD, and some of Portrait

Homes’s contractors on September 25, 2008, for violations of the Texas Water

Code, negligence, nuisance, trespass, and breach of contract.

      A jury trial was held in early 2011. The jury found that Portrait Homes was

57% liable for Securlock’s damages, that BDD was 25% liable, and that

Securlock was 3% liable for its own damages.2          The trial court awarded

      2
         The jury also found that the contractors, W.R. Hodgson Co., LP, and
WRH Construction, LLC, (together, Hodgson) and J. Guzman Construction, Inc.,
and J.E. Guzman Construction, Inc. (together, Guzman), were 10% and 5%
liable, respectively.


                                       3
Securlock $1,537,450 in actual damages plus prejudgment interest and costs.

Portrait Homes and BDD timely filed their appeals.3 Securlock also appealed.

                                     Discussion

I. Portrait Homes and BDD’s appeals4

      A. Statute of limitations

      In Portrait Homes’s first issue, it argues that the statute of limitations bars

Securlock’s claims against it. Securlock’s negligence, trespass, nuisance, and

water code claims are governed by limitations periods of two years. See Tex.

Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2012) (“[A] person must

bring suit for trespass for injury to the estate or to the property of another . . . not

later than two years after the day the cause of action accrues.”); Schneider Nat’l

Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004) (applying section

16.003 to a nuisance claim); Graham v. Pirkey, 212 S.W.3d 507, 512 (Tex.

App.—Austin 2006, no pet.) (applying section 16.003 to water code claims); Tex.

Am. Corp. v. Woodbridge Joint Venture, 809 S.W.2d 299, 303 (Tex. App.—Fort

Worth 1991, writ denied) (applying section 16.003 to a negligence claim).


      3
        The trial court found that Securlock’s claims against Guzman were barred
by limitations, that Hodgson was liable to Securlock for the damages caused by
Guzman, and that Hodgson had an indemnity claim against Guzman. Guzman
paid Hodgson, and Hodgson satisfied Securlock’s judgment against it. Neither
Guzman nor Hodgson are parties to this appeal.
      4
       Portrait Homes and BDD appealed separately and filed separate briefs.
BDD later filed a letter brief in which it adopted and joined in Portrait Homes’s
brief.


                                           4
Accrual of limitations is a question of law for the court, but “material factual

disputes about frequency, duration, and extent of nuisance conditions” are

questions for the factfinder. Schneider Nat’l Carriers, 147 S.W.3d at 274–75.

      Accrual of Securlock’s claims depends on whether the flooding is properly

characterized as a permanent or temporary nuisance. Id. at 270. A permanent

nuisance is a constant and continuous activity that may be presumed to continue

indefinitely. Id. at 272. A permanent nuisance claim accrues when the first injury

occurs. Id. at 270. A temporary nuisance, however, is of “limited duration,” and

“it is uncertain if any future injury will occur.” Id. at 272. A temporary nuisance

claim “accrues anew upon each injury.” Id. at 270.

      Securlock was first flooded in July 2006. It claims that the first flood was

the result of the sewer inlets being covered with erosion control devices that

Portrait Homes was required to install during construction.5         After Securlock

complained to Portrait Homes, Portrait Homes removed the devices. Securlock

reported no more flooding for approximately six months. Securlock argues that

because the first flood was caused by a different problem than all of the

subsequent flooding, accrual did not begin until the first flood not caused by the

erosion control devices; that is, not until December 30, 2006, when the flooding

was caused by Portrait Homes’s drainage system.6


      5
       Securlock’s petition does not complain of this first flood.
      6
        Andrew Smith, who worked for Securlock’s management company,
testified that Securlock had no way of knowing if Portrait Homes’s drainage

                                          5
      Portrait Homes argues that flooding by rainwater is a permanent injury as a

matter of law. See Yalamanchili v. Mousa, 316 S.W.3d 33, 38 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied); Mitchell v. Timmerman, No. 03-08-

00320-CV, 2008 WL 5423268, at *6 (Tex. App.—Austin Dec. 31, 2008, no pet.)

(mem. op.); Pope v. John Kiella Homes, No. 07-06-0146-CV, 2008 WL 1903332,

at *3–4 (Tex. App.—Amarillo Apr. 30, 2008, no pet.) (mem. op.). In these cases,

however, there was no dispute as to the source of the floods; the floods resulted

from permanent structures and were therefore permanent nuisances.            See

Yalamanchili, 316 S.W.3d at 38 (“[T]he structure creating the runoff, Mousa’s

shopping center, is a permanent structure, and such a permanent source is

presumed to result in a permanent nuisance.”); Mitchell, 2008 WL 5423268, at *6

(holding that the defendant’s permanent drainage system created a permanent

nuisance); Pope, 2008 WL 1903332, at *4 (noting that the source the plaintiffs

“blame[d] for their injuries, the Briarcrest subdivision, is permanent”).

      In the present case, Securlock presented evidence that the first flood was

caused by a temporary problem—that of erosion control devices. It claims that

once the devices were removed, the flooding ceased until Portrait Homes built

new houses, which caused the flooding starting in December 2006. See Mitchell

system functioned properly until the erosion control devices had been removed.
Portrait Homes’s witness, Bruno Pasquinelli, testified that Portrait Homes was
required by the government to put the erosion control devices on the inlets and
admitted that with the devices on, the inlets were “less functional” than they
should have been and that Portrait Homes could not have determined how well-
functioning the drainage system was until the devices were removed.


                                          6
Energy Corp. v. Bartlett, 958 S.W.2d 430, 443 n.8 (Tex. App.—Fort Worth 1997,

pet. denied) (“The ability to terminate tortious conduct is a characteristic of a

temporary injury to land.”). The source of the first flood is therefore a question of

fact and was properly presented to the jury. See Schneider, 147 S.W.3d at 286

(noting that if the nature of a nuisance is in dispute, then categorizing the

nuisance as permanent or temporary is a question for the jury). We overrule

Portrait Homes’s first issue.

       B. The limitations question in the jury charge

       In Portrait Homes’s second issue, and in BDD’s first issue, they argue that

the jury question on limitations was improper. The question asked of the jury

was,

       By what date did Securlock discover—or in the exercise of
       reasonable diligence should Securlock have discovered—that the
       flooding of its storage facility was caused by the acts or omissions of
       any of the defendants that serve as the basis for this lawsuit?

Portrait Homes and BDD objected at the charge conference, and their objections

were overruled. See State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 241 (Tex. 1992) (“There should be but one test for determining if a

party has preserved error in the jury charge, and that is whether the party made

the trial court aware of the complaint, timely and plainly, and obtained a ruling.”).

       The question is improper for two reasons. First, under the discovery rule,

the limitations period begins at the time that the injury is discovered.          See

Mitchell Energy, 958 S.W.2d at 436 (“Because a plaintiff’s cause of action for



                                          7
damage to property accrues when the plaintiff discovers or should have

discovered the fact of the injury, the trial court erred when it asked the jury . . . to

determine when the plaintiffs discovered the cause, if any, of their polluted

water.”).   Second, the phrase “that serve as the basis for this lawsuit” is

problematic. Securlock stated repeatedly that it was not suing for the July 2006

flood. Thus, the question forces the jury to respond with a date after July 2006

because that flood, and the acts or omissions of the defendants that may have

caused that flood, did not serve as the basis for Securlock’s lawsuit.

      Because we hold that the jury questions on limitations was defective, we

sustain Portrait Homes’s second issue and BDD’s first issue. The remedy for a

trial court’s submission of an improper question on a material issue is to remand

the case for a new trial with instructions to submit the issue properly to the jury.

See id. at 437 (citing Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.

1994)). Because we hold that Portrait Homes and BDD are entitled to a new trial

based on their second and first issue respectively, we do not need to reach

Portrait Homes’s fifth issue regarding the sufficiency of the evidence or BDD’s

third issue regarding cumulative error. See Tex. R. App. P. 47.1; Dickinson v.

Dickinson, 324 S.W.3d 653, 659 n.2 (Tex. App.—Fort Worth 2010, no pet.).

However, in the interest of judicial economy, we will address those issues which

are likely to arise on remand. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d

76, 81 (Tex. 1997); Nu-Way Energy Corp. v. Delp, 205 S.W.3d 667, 684 (Tex.

App.—Waco 2006, pet. denied).


                                           8
      C. Texas Water Code

      In Portrait Homes’s third issue, it complains that Securlock has no viable

claim under section 11.086 of the water code as a matter of law. Section 11.086

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

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

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

impounded.” Tex. Water Code Ann. § 11.086(a) (West 2008). Portrait Homes’s

argument is premised on its contention that the water that flooded Securlock’s

facility was not “surface water” under the water code.

      Surface water, as used in the water code, means water “which is diffused

over the ground from falling rains or melting snows, and continues to be such

until it reaches some bed or channel in which water is accustomed to flow.”

Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.]

2003, no pet.). “When rainfall is under control, either by ditches, tanks, ponds, or

pipes, it no longer is considered surface water.” Dalon v. City of DeSoto, 852

S.W.2d 530, 538–39 (Tex. App.—Dallas 1992, writ denied).             That is, once

rainwater is controlled, resulting floods are not actionable under section 11.086.

See City of Whitesboro v. Williams, No. 05-99-01840-CV, 2001 WL 66427 (Tex.

App.—Dallas Jan. 29, 2001, no pet.) (not designated for publication) (holding that

plaintiffs did not have a cause of action under section 11.086 because the water

that flooded their house came from the sewer system and was thus not surface

water).


                                         9
            1. The source of the water that flooded Securlock

      At trial, Securlock’s expert, Mark Pacheco, testified that Securlock flooded

because the Durango Ridge sewer system backed up so that rainwater could not

enter the system. He explained,

             Because the water surface elevation was not correct—it was
      actually much higher than what was shown on the Durango Ridge
      plans—that would cause the water to backup in that new storm
      sewer that had been built as part of Durango Ridge—would backup
      into the detention pond.
             And we also, in our review of the detention pond calculations
      and design, determined that the orifice plate, the outflow of the
      detention pond, had not been designed correctly, and so it also
      caused the water surface in the pond to rise higher than was
      originally planned or designed on the plans. The result of that is, is
      that there are two curb inlets in Durango Ridge—that I mentioned
      earlier—that drained into a pipe that goes into the detention pond.
      And with that detention pond being higher, the water backs up into
      those inlets, and so they are not able to collect the water that’s
      coming down Durango Ridge Drive. So while the water’s coming
      down Durango Ridge Drive, instead of being able to enter those two
      inlets, since the water has backed up and submerged those inlets,
      the water continues across, goes into the intersection of Park
      Avenue and goes into the Securlock facility.
A letter and a report by Pacheco to Securlock also stated that because the curb

inlets were submerged, rainwater in the streets bypassed the sewer system and

flowed into Securlock’s property.

      Luis Salcedo, Portrait Homes’s civil engineering expert, testified that

photographic and video evidence taken in September 2010 “showed that the

inlets in Durango Ridge were capturing all the water, nothing was bypassing the

inlets, and the pond in Durango Ridge was functioning perfectly to pass the flow




                                       10
through.” In his report, Salcedo opined that the “detention pond [was] not the

cause of the” flooding.

            2. Securlock’s water code claim

      Portrait Homes argues that Securlock has no claim under the water code

because “the water affecting Securlock’s storage facility flowed through an

artificial drainage system comprised of pipes and a detention pond.” Because

the water was controlled through the drainage system, the water was no longer

diffused surface water. See Dietrich, 123 S.W.3d at 420 (“When rain water fell

directly on the tennis courts and wooded acreage on the night of the flood at

issue, it undeniably possessed the character of surface water. When the water

entered the channel leading to the storm sewer, its character changed.”).

However, Securlock presented evidence that the water that flooded its property

never entered the drainage system. Instead, because of alleged faults in the

sewer system, the rainwater was diverted down the streets of Durango Ridge

and onto Securlock’s property.      If the flood was the result of this diversion

(instead of, say, water overflowing from the detention pond), then Securlock does

have a claim under section 11.086. Because there is evidence that Securlock

was flooded by surface water, Securlock is not barred as a matter of law from

asserting a claim under the water code.7 We overrule Portrait Homes’s third

issue.8


      7
        We do, however, disagree with Securlock’s contention that “[t]he fact [that]
the rain water may have flowed through all or part of a defective drainage system

                                        11
      D. Definition of “surface water”

      In Portrait Homes’s fourth issue, it complains that the trial court submitted

an incorrect definition of surface water.

      Question No. 1 of the jury charge asked,

            Did Portrait Homes divert or impound the natural flow of
      surface water, or permit a diversion or impounding by it to continue,
      in a manner that damaged Securlock’s property by the overflow of
      the water diverted or impounded?

            “Surface water” means 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 flow.

Portrait Homes objected in the trial court that the definition was incomplete. It

argues that a complete definition would state that surface water “only

encompasses water untouched and undirected by the hands of man, and

excludes water subjected to prior man-made changes in its flow.”




before reaching Securlock’s property does not diminish . . . Portrait Homes’[s]
liability under the Texas Water Code.” Flooding resulting from water under the
control of “ditches, tanks, ponds, or pipes” is not actionable under section 11.086.
Dalon, 852 S.W.2d at 538–39. Securlock’s attempt to distinguish the present
case from Dalon on the ground that Dalon concerned natural waterways whereas
the control measures here are man-made is unconvincing. Dalon specifically
notes that water in “tanks” and “pipes,” neither of which are natural waterways, is
not surface water. Id.
      8
        Portrait Homes makes arguments in the alternative concerning the
sufficiency of the evidence supporting Securlock’s water code claim. Because
our disposition of Portrait Homes’s second issue requires us to remand for a new
trial, we do not need to address the alternative arguments.


                                            12
         The contention that section 11.083 applies only to water that is “untouched

by the hands of man,” appears to be based on two 1932 supreme court cases.

See Miller v. Letzerich, 121 Tex. 248, 254, 49 S.W.2d 404, 408 (1932); Bunch v.

Thomas, 121 Tex. 225, 229, 49 S.W.2d 421, 423 (Tex. 1932); see also Jefferson

Cty. Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 950

(Tex. App.—Beaumont 1994, writ denied) (citing Bunch and Miller for the

proposition that section 11.086 affords no protection to upstream landowners

when the drainage “has been touched by the hands of man”). However, the

postures of the parties in Miller and Bunch are different from the situation here,

and that difference is critical to understanding the holdings of those cases.

         Both Miller and Bunch hold that the lower estate has the burden to receive

surface waters from the upper estate that pass to its land in their natural, diffused

state.    Miller, 121 Tex. at 254, 49 S.W.2d at 408 (“[L]ands lower than the

coterminous estate owe a service to receive the burden of surface waters which

may flow from the higher estate onto the lower, so long as the surface water from

the dominant estate reaches the borders of the servient one untouched and

undirected by the hands of man.”); Bunch, 121 Tex. at 229, 49 S.W.2d at 423.

However, in both cases, the upper estate had channeled water in such a way

that it reached the lower estate in an “unnatural way”—that is, in a condensed or

accelerated state. Miller, 121 Tex. at 267, 49 S.W.2d at 414 (noting that plaintiff

wanted to “cause [water] to pass off onto the lands of the defendants in error in

increased quantities, in a different state[,] and in a manner well calculated to


                                          13
inflict injury”); Bunch, 121 Tex. at 227, 49 S.W.2d at 422 (noting that the plaintiff

“cut ditches . . . which concentrated the water and caused it to reach the Thomas

land in this form”). In Miller, the plaintiff wanted to repair ditches and a levee that

would “divert the natural flow of surfac[e] waters from the [plaintiff’s land] on to

that of the defendants.” 121 Tex. at 250, 49 S.W.2d at 406. In Bunch, the

defendant built an embankment that “thr[ew] . . . water back” water that the

plaintiff had “thrown upon her.” 121 Tex. at 228, 49 S.W.2d at 423.

      The Supreme Court held that the upper estates had no cause of action

against the lower estates under the water code because the law does not burden

the lower estates with the requirement that they must receive these diverted

waters.9 Miller, 121 Tex. at 267, 49 S.W.2d at 414; Bunch, 121 Tex. at 231, 49

S.W.2d at 424 (“[I]n our opinion, appellees’ land is not burdened with any

servitude to receive water not naturally flowing upon the same.”) (quoting Higgins


      9
      Miller and Bunch rely on a prior but substantially similar version of section
11.086, which stated,

             That it shall hereafter be unlawful for any person, firm or
      private corporation to divert the natural flow of the surface waters in
      this State or to permit a diversion thereof caused by him to continue
      after the passage of this Act, or to impound such waters, or to permit
      the impounding thereof caused by him to continue after the passage
      of this Act, in such a manner as to damage the property of another,
      by the overflow of said water so diverted or impounded, and that in
      all such cases the injured party shall have remedies, both at law and
      in equity, including damages occasioned thereby.

See Act of February 19, 1927, 40th Leg., R.S., ch. 56 § 1, 1927 Tex. Gen. Laws
80, 80–81.


                                          14
v. Spear, 283 S.W. 584, 587–88 (Tex. Civ. App.—El Paso 1926), aff’d, 118 Tex.

310, 15 S.W.2d 1010 (1929)). Thus, when Miller and Bunch state that the water

code affords no protection for waters directed by man-made measures, they are

speaking to the upper estate’s cause of action against the lower estate, not the

other way around. See Boatman v. Lites, 970 S.W.2d 41, 44 (Tex. App.—Tyler

1998, no pet.) (“If the water has been altered by the hands of man so that it flows

in greater quantities or is directed or accelerated, then the property owner has

the right to divert that water to protect his land.”); Jefferson Cnty. Drainage Dist.,

876 S.W.2d at 950 (relying on Bunch and Miller for the proposition that section

11.086 affords no protection to upper estates for damage to their property when

they have altered the water’s natural drainage and the lower estate prevents the

water from entering its land); Mitchell v. Blomdahl, 730 S.W.2d 791, 792 (Tex.

App.—Austin 1987, writ ref’d n.r.e.) (holding that upper estate could not sue

lower estate under section 11.086 after lower estate “dump[ed] fill, dirt, and rocks

onto his property” to keep water from entering when construction of streets

“channeled and directed the . . . flow of water . . . , increasing the volume of

water flowing across the [upper estate] and onto [the lower estate]”); Bishop v.

Harris, 669 S.W.2d 859, 861 (Tex. App.—Tyler 1984, writ dism’d w.o.j.) (applying

Miller and Bunch and holding that lower estate did not violate section 11.086 by

building retaining wall because the water it was designed to repel “was

concentrated and accelerated by the construction of the parking lots and

buildings”). In fact, Miller noted that even though the plaintiff’s ditch was an


                                         15
“artificial drainway” created by the plaintiff, the waters that flowed through it

would still be actionable under the statute. 121 Tex. at 252, 267, 49 S.W.2d at

407, 414 (“[I]t is apparent when one wrongfully diverts surface water and causes

it to flow over another’s land, causing damage, his acts are within the prohibitory

terms of the statute, and a cause of action arises.”). Thus, the definition of

surface water argued by Portrait Homes that included the statement that section

11.086 applies only to “water untouched and undirected by the hands of man” is

incorrect. See Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267,

283 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“[N]othing in section 11.086

suggests that accumulated rainfall is no longer diffused surface water once it has

been, in any way, diverted by artificial means or touched by the hands of man.”)

(citing Dalon, 852 S.W.2d at 539 (“[T]he surface water remains surface water

since it is being diverted by artificial means.”)). We overrule Portrait Homes’s

fourth issue.

      E. Evidence of the appraised value

      In Portrait Homes’s sixth issue, it argues that the trial court erred by

excluding evidence of the appraised value of Securlock’s property.        The trial

court had granted Securlock’s motion in limine, which prohibited “[a]ny question,

reference[,] or statement as to the value of Securlock’s property used by the

Tarrant County Appraisal District, as assessment rolls are not competent

evidence of the value of Securlock’s property.”       After Securlock’s damages

expert testified regarding his opinion of the pre-flood value of Securlock’s


                                        16
property, Portrait Homes argued that it be allowed to introduce evidence

regarding the Tarrant County Appraisal District appraisal “to contradict an

affirmative assertion by a plaintiff as to the value of the facility.” The trial court

denied Portrait Homes’s request that it change its ruling.

      Portrait Homes claims that the trial court erred by denying the admission of

the evidence because “rendition for taxes and the values upon which same are

paid are material and admissible by way of impeachment or contradiction . . . .

They amount to admissions against interest.” Warren v. Premier Oil Ref. Co.,

173 S.W.2d 287, 291 (Tex. Civ. App.—Eastland 1943, writ ref’d w.o.m.). Portrait

Homes offered “a page from the appraisal district showing what the five-year

historical value for this property was,” not a rendition statement.       A rendition

statement is rendered by the property owner and must contain “the property

owner’s good faith estimate of the market value of the property or, at the option

of the property owner, the historical cost when new and the year of acquisition of

the property.”   See Tex. Tax Code Ann. § 22.01(a)(5) (West Supp. 2012).

Securlock noted at trial that Portrait Homes’s exhibit was “a printout from a Web

site with numerous handwritten writings that have not been properly

authenticated or proved up.”       Appraisal records are prepared by the chief

appraiser, not the property owner. See id. § 25.01(a) (West 2008). They are

therefore not admissions against interest like rendition statements. See Houston

Lighting & Power Co. v. Fisher, 559 S.W.2d 682, 686–87 (Tex. Civ. App.—

Houston [14th Dist.] 1977, writ ref’d n.r.e.) (“[T]ax assessments rarely reflect the


                                         17
true market value.”); Hous. Auth. of City of Dallas v. Brown, 256 S.W.2d 656, 659

(Tex. Civ. App.—Dallas 1953, no writ) (“It is generally known that values reflected

by the tax rolls do not reflect actual value. Custom usually sets the approximate

percentage of actual value for such assessment.”).          We overrule Portrait

Homes’s sixth issue.

      F. Standard of care for BDD

      In its second issue, BDD argues that the trial court incorrectly denied its

proposed negligence question and submitted one that did not recite the proper

standard of care for BDD. The negligence question that was submitted to the

jury for all the defendants read,

      Did the negligence, if any, of those named below proximately cause
      damage to Securlock’s storage facility in Bedford, Tarrant County,
      Texas?

      “Negligence” means failure to use ordinary care, that is, failing to do
      that which a similarly situated party of ordinary prudence would have
      done under the same or similar circumstances or doing that which a
      party of ordinary prudence would not have done under the same or
      similar circumstances.

      “Ordinary care” means that degree of care that would be used by a
      similarly situated party of ordinary prudence under the same or
      similar circumstances.

      “Proximate cause” means that cause which, in a natural and
      continuous sequence, produces an event, and without which cause
      such event would not have occurred. In order to be a proximate
      cause, the act or omission complained of must be such that a
      similarly situated party using ordinary care would have foreseen that
      the event, or some similar event, might reasonably result therefrom.
      There may be more than one proximate cause of an event.




                                        18
BDD objected at the charge conference and requested the inclusion of the

negligence, ordinary care, and proximate cause definitions in the pattern jury

charge for professional malpractice as to BDD. See State Bar of Tex., Texas

Pattern Jury Charges: Malpractice PJC 60.1 (2012).

      Certain professions are held to a higher standard of care because they

“hold themselves out as having superior knowledge, training, and skill.” See id.

at 107; see also Atkins v. Crosland, 406 S.W.2d 263, 264 (Tex. Civ. App.—Fort

Worth 1966) (holding accountants to the higher standard of care for professionals

because they are “a skilled professional class” and “are subject generally to the

same rules of liability for negligence in the practice of their profession as are

members of other skilled professions”), rev’d on other grounds, 417 S.W.2d 150

(Tex. 1967). For such professions, expert testimony is needed to establish the

proper standard of care.    See Palmer v. Espey Huston & Assocs., Inc., 84

S.W.3d 345, 354 (Tex. App.—Corpus Christi 2002, pet. denied) (holding that

absence of expert testimony on the elements of a professional negligence claim

against engineers “necessitated entry of directed verdicts” in favor of the

engineers); Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.—Houston

[1st Dist.] 1993) aff’d as modified, 901 S.W.2d 434 (Tex. 1995) (holding that a

directed verdict was proper when there was no expert testimony on “the

applicable engineering standard of care”); see also Tex. Civ. Prac. & Rem. Code

Ann. § 150.002 (West 2011) (requiring a certificate of merit in a suit against a

licensed architect, licensed professional engineer, registered professional land


                                       19
surveyor, or registered landscape architect by a professional who can set forth

the negligence for which the plaintiff is suing).

      The standard of care for a licensed engineer is “that which an engineer of

ordinary prudence in the exercise of ordinary care would not have done under

the same or similar circumstances or failing to do that which an engineer of

ordinary prudence in the exercise of ordinary care would have done under the

same or similar circumstances.”       Parkway Co., 857 S.W.2d at 919; see also

Westchester Enters., L.P. v. Grand Homes, Inc., No. 05-98-01829-CV, 2001 WL

953237, at *5 (Tex. App.—Dallas Aug. 23, 2001, pet. denied) (not designated for

publication) (applying the same standard of care for engineers). This standard

maps the language of the pattern jury charge for nonmedical professionals and

the language requested by BDD.           The standard of care for licensed civil

engineers is different than the standard of care for other parties, and the jury was

not given an instruction indicating that. On remand, the jury should be instructed

with the proper standard. We sustain BDD’s second issue.

II. Securlock’s appeal

      A. Breach of contract

      In Securlock’s first issue in its cross-appeal, it argues that the trial court

erred by granting Portrait Homes’s motion for directed verdict on Securlock’s

claim for breach of contract.     A directed verdict is proper only under limited

circumstances:    (1) when the evidence is insufficient to raise a material fact

issue, or (2) when the evidence conclusively establishes the right of the movant


                                          20
to judgment or negates the right of the opponent. See Prudential Ins. Co. of Am.

v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris

Methodist Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex. App.—Fort Worth 2009,

pet. denied).   In reviewing a directed verdict, we follow the standards for

assessing legal sufficiency of the evidence. See City of Keller v. Wilson, 168

S.W.3d 802, 823 (Tex. 2005). We review the evidence in the light most favorable

to the person suffering the adverse judgment, and we must credit favorable

evidence if reasonable jurors could and disregard contrary evidence unless

reasonable jurors could not. Id. at 827; Exxon Corp. v. Emerald Oil & Gas Co.,

348 S.W.3d 194, 215 (Tex. 2011).

      In 2004, Portrait Homes and Securlock entered into a “Temporary

Construction Consent Agreement.” The contract stated that its purpose was

       [f]or the (i) removal of the existing 24” storm water pipeline and
      headwalls, including the cutting of a path across an existing concrete
      driveway on the Consent Property,[10] (ii) installation and
      construction, including excavation, of a 30” storm water pipeline and
      headwalls[,] (iii) and any other related work across the Consent
      Property and repair of the existing concrete driveway and adjacent
      property, all in accordance with the plans attached as Exhibit A and
      as stated in this Agreement (collectively, the “Facilities”).

Exhibit A was not submitted into evidence. The agreement also stated, “[Portrait

Homes] shall construct the Facilities in a good and workmanlike manner in


      10
        “Consent Property” was defined in the agreement as “[t]he portion of the
driveway extending from Securlock’s Property to the southbound service road of
State Highway 121, Bedford, Tarrant County, Texas, as more particularly shown
on the attached Exhibit A.”


                                       21
accordance with the plans and specifications stated in this Agreement and in

compliance with all applicable laws, statutes, ordinances[,] and codes.”

Securlock argues that Portrait Homes breached the agreement because (1) the

jury’s finding that Portrait Homes violated section 11.086 of the water code

establishes that Portrait Homes did not perform its work “in compliance with all

applicable laws, statutes, ordinances, and codes”; (2) Portrait Homes decided not

to install a thirty inch pipe as contemplated in the agreement, but instead

installed a thirty-three inch pipe, which was “too small to accommodate the

increased amount of water”; and (3) the thirty-three inch pipe was installed too

low and caused the back up of water in the drainage system.

      The consent agreement clearly defines its scope to extend only to the

removal and replacement of the pipes running under Securlock’s driveway. It

does not extend to any other part of Portrait Homes’s sewer system, nor to the

system’s design.     “Good and workmanlike” work is “that quality of work

performed by one who has the knowledge, training, or experience necessary for

the successful practice of a trade or occupation and performed in a manner

generally considered proficient by those capable of judging such work.” Melody

Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). A guarantee to

perform repairs in a good and workmanlike manner is not a guarantee of the

results of the work. Id. Thus, any complaint that the sewer system did not

function properly must be a complaint about the construction of the pipeline

under Securlock’s driveway if it is to be covered by this agreement.


                                        22
      Securlock argues that the placement of the thirty-three inch pipe was lower

than the original twenty-four inch pipe’s placement.        However, there is no

evidence that the lower placement was a deviation from the plans attached to the

agreement. As noted above, Securlock did not submit the plans into evidence.

BDD’s senior project manager’s testimony indicated that BDD design’s called for

the pipe to be lower so that it would fit under Securlock’s driveway. Securlock

points to the testimony of its expert, Walter Nelson, who testified that the lower

position of the thirty-three inch pipe caused water in the pipe to back up. Nelson

did not testify to any defect in the construction of the pipe itself. There was no

evidence that the pipe’s lower placement violated the terms of the consent

agreement.

      As to any water code violation by Portrait Homes, we already stated that

Portrait Homes is not liable under the water code for damages caused by water

already in its sewer system. Water flowing in the pipes is not surface water, and

any defect in the construction of the pipes cannot lead to a violation of the water

code. As this is the only law, statute, ordinance, or code that Securlock points to,

there is no evidence that Portrait Homes’s pipe construction was noncompliant.

      As to the size of the pipe, Securlock acknowledges in its reply brief, “It was

not the change in size of the pipe in isolation that caused the problem. It was the

change in size of the pipe in conjunction with the installation of the pipe further

down into the box culvert that caused the problem.”         Securlock goes on to

explain that the problems occurred “when the pipe was lowered further down into


                                        23
the box culvert such that the flow from it was hit head on by the water flowing

from the [other] pipe” and that “[t]hese problems could not be overcome by

increasing the size of the new pipe to 33 inches.” Securlock’s argument is solely

based on the location of the pipe. It points to no evidence that the larger pipe,

assuming that the installation of the larger pipe was a breach of the agreement,

damaged Securlock in any way. Because Securlock produced no evidence that

it was damaged by the change in size of the pipe, its breach of contract claim

cannot be sustained on that ground.      See Wood Care Ctrs., Inc. v. Evangel

Temple Assembly of God of Wichita Falls, Tex., 307 S.W.3d 816, 824 (Tex.

App.—Fort Worth 2010, pet. denied) (stating that a plaintiff must prove resulting

damages to prevail on a breach of contract claim).

      Securlock presented no evidence that Portrait Homes breached the

consent agreement by failing to construct the pipeline in a good and workmanlike

manner or by failing to comply with applicable laws, statutes, ordinances, and

codes.   Securlock also presented no evidence that it was damaged by the

change in pipe size. Because Securlock did not present evidence to sustain its

breach of contract claim, the trial court did not err in granting Portrait Homes’s

motion for directed verdict on the claim. We overrule Securlock’s first issue.

B. Gross negligence

      In Securlock’s second issue, it argues that the trial court erred by granting

Portrait Homes’s motion for directed verdict on Securlock’s claim for gross

negligence. Gross negligence means an act or omission


                                        24
      (A) which when viewed objectively from the standpoint of the actor
      at the time of its occurrence involves an extreme degree of risk,
      considering the probability and magnitude of the potential harm to
      others; and

      (B) of which the actor has actual, subjective awareness of the risk
      involved, but nevertheless proceeds with conscious indifference to
      the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (West 2008). Gross negligence

is not the result of “momentary thoughtlessness, inadvertence, or error of

judgment.”   Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.

1993). Evidence of simple negligence is not enough to prove either the objective

or subjective elements of gross negligence. Universal Servs. Co. v. Ung, 904

S.W.2d 638, 641 (Tex. 1995).

      As evidence of gross negligence, Securlock points to testimony that when

the property began flooding, Portrait Homes suggested that Securlock implement

improvements on its own property, that Portrait Homes delayed in installing the

missing restrictor plate, and that Portrait Homes had promised to build a trench

drain but never built it. Securlock claims that Portrait Homes’s delays in fixing

the sewer system showed a conscious indifference to Securlock’s problems.

      Securlock cites to Bily v. Omni Equities, Inc., 731 S.W.2d 606, 614 (Tex.

App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.), for the proposition that

evidence of intentionally continuing to impound water in violation of the water

code can support a finding of conscious indifference. In Bily, the plaintiff Bily

sought and obtained a temporary injunction ordering the defendant to build a



                                       25
ditch to drain the water flooding his property. Id. at 609. The court noted that the

defendant “admitted that he made no effort to correct the problem other than to

file criminal complaints against Bily after the temporary injunction had been

granted,” evidencing his conscious indifference to Bily’s rights. Id. at 614.

      In this case, however, there is evidence that Portrait Homes made

investigations into the problem.     Bruno Pasquinelli, the division manager for

Portrait Homes, testified that when Securlock brought the flooding to Portrait

Homes’s attention, he set up meetings to evaluate the flooding.           Pasquinelli

testified that he visited Securlock’s facility “probably . . . 20 times or more” after

Securlock first complained of flooding. He said that he tried to visit Securlock’s

property when it had rained to see the flooding. He claimed he told Securlock,

      We don’t know where the water’s coming from, but what we see right
      here is you should take these trees out, redo this swale, expose
      some foundation. And if what you’re saying is true, water’s coming
      from Park Avenue, you know, you might be able to build a small
      berm.

Pasquinelli also testified that Portrait Homes contacted BDD and asked it to

review the design plans to make sure the flooding was not coming from Durango

Ridge and that Portrait Homes “worked closely with the city” to determine the

source of the flooding.

      Pasquinelli did testify that Portrait Homes considered building the trench

drain. He said that plans for the trench were drawn up and sent to the city for

approval but that the city concluded that no excess water was coming from the

Durango Ridge development. Portrait Homes provided evidence in the form of


                                         26
emails showing that it conducted an investigation into possible defects in its

drainage system that could be flooding Securlock and that it was communicating

with the city regarding the results. Pasquinelli testified that the city wrote letters

stating that Portrait Homes was not at fault. He also testified that Portrait Homes

did not originally offer to pay for improvements to Securlock’s property because it

had not conducted an investigation to see if it was the cause of the flooding.

      The evidence shows that Portrait Homes investigated Securlock’s

complaints of flooding but determined that it was not at fault. With the benefit of

hindsight, we can see that this conclusion may be erroneous, but that is not how

gross negligence is determined. See Reeder v. Wood Cnty. Energy, LLC, No.

10-0887, 2012 WL 3800231, at *7, (Tex. Aug. 31, 2012) (“Determining whether

an act or omission involves peril requires ‘an examination of the events and

circumstances from the viewpoint of the defendant at the time the events

occurred, without viewing the matter in hindsight.’”) (quoting Transp. Ins. Co. v.

Moriel, 879 S.W.2d 10, 23 (Tex. 1994)); Wal-Mart Stores, Inc., 868 S.W.2d at

326 (stating that gross negligence cannot be based on an error in judgment).

That Portrait Homes refused to pay for damages for which it did not think it was

responsible or implement improvements that it had been told were unnecessary

is not evidence of conscious indifference to Securlock’s rights. See LaRue v.

Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 879 (Tex. App.—Fort Worth 2005, no

pet.) (holding that there was no evidence of gross negligence when the

defendant’s efforts to clean up a dangerous construction site were not effective


                                         27
but had been undertaken without indifference as to whether the job had been

done properly). The trial court therefore did not err by granting Portrait Homes’s

motion for directed verdict on Securlock’s gross negligence claim. We overrule

Securlock’s second issue.

                                  Conclusion

      Having overruled Securlock’s two issues, we affirm the trial court’s orders

granting directed verdicts on Securlock’s claims for breach of contract and gross

negligence. Having sustained Portrait Homes’s second issue and BDD’s first

and second issues, we reverse and remand the case for a new trial on

Securlock’s remaining claims in a manner consistent with this opinion.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DELIVERED: March 28, 2013




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