                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

                                                       §
    ARTURO CONTRERAS,                                                   No. 08-09-00321-CV
                                                       §
                            Appellant,                                       Appeal from
                                                       §
    v.                                                                   168th District Court
                                                       §
    JAMES ROBERT BENNETT and                                          of El Paso County, Texas
    HILDA M. BENNETT,                                  §
                                                                          (TC # 2006-4621)
                            Appellees.                 §


                                                OPINION

          Between July 27 and August 7, 2006, more than fifteen inches of rain engulfed the City of

El Paso, an amount nearly twice the annual average for the desert city.1 The deluge sent mud and

rocks cascading into some parts of the city, destroying as many as 300 homes and causing an

estimated $100 million in damage. Against this back drop, we consider here a claim for damages

to a residence arising from violations of the Texas Water Code. A jury found that Arturo Contreras

wrongfully diverted surface water and awarded James and Hilda Bennett $43,000 in cost of repair

damages and $25,000 in diminution of value damages. The trial court entered judgment for the

Bennetts and ordered Contreras to pay $68,000 in actual damages plus prejudgment interest and

court costs. On appeal, Contreras complains the evidence is legally or factually insufficient and that

the trial court awarded a double recovery. We affirm in part and reverse in part.

                                         FACTUAL SUMMARY




1
    http://www.usatoday.com/weather/stormcenter/2006-08-06-ElPaso-floods_x.htm.
       James and Hilda Bennett bought a home in the Richmar Subdivision in 1972. Their home

is located on a slope. At the foot of the slope, near the edge of the Bennetts’ property, there was a

rock wall which enclosed the backyard. On August 1, 2006, after a severe rainstorm in El Paso, a

significant portion of the rock wall collapsed and caused severe damage to the wall and the backyard.

                                           The Pleadings

       The Bennetts filed suit on October 19, 2006 alleging causes of action against three of their

neighbors--Martha Lozano, Arturo Contreras, and Margaret Aboud--for the damages to their

property. Their claims included negligence, wrongful diversion of surface water in violation of

Section 11.086(a)(3) of the Texas Water Code, and a request for injunctive relief pursuant to

Section 11.0841 of the Texas Water Code to redress the unauthorized diversion. Each of the

defendants owed a portion of the slope behind the Bennetts’ property. According to the pleadings,

man-made changes to the respective properties caused:

       [M]assive quantities of surface water that had been unlawfully, wrongfully, and
       negligently diverted, retained, and/or impounded [to spill] over, onto and into
       Plaintiff’s property causing property damage.

                                          Trial Testimony

       The Bennetts purchased their home in the 1970s. The backyard was enclosed by a rock wall

which contained concrete footings but it was not a retaining wall. Mr. Bennett testified that in 1975,

he improved the wall by raising the height. He also created a ditch to help water flow around his

yard. Experts on both sides testified that although the rock wall may have been sufficient at the time

it was built, a replacement would need to meet more stringent requirements under the updated

building code.

       Behind the Bennetts’ backyard is a slope, at the top of which sit the properties of the three

defendants. A drainage plan for the Richmar subdivision was admitted into evidence. It shows a
storm water area drainage area division line extending along the top of the slope between the

Bennetts’ and Contreras’ properties. John Karlsruher testified as the Bennetts’ engineering expert.

Based on his evaluation of the plans, everything north of the crest line should drain north and

everything south of the crest line should drain south.

       Karlsruher also discussed several alterations that were made to Contreras’ property. A

cement slab was added to his backyard. This was a man-made addition which prevented the ground

from soaking up water, and diverted the flow of water from his backyard downhill toward the

Bennetts’ backyard. A wall constructed on Contreras’ property, as well as a number of stones

aligned on his property, diverted water towards the Bennetts’ property. These man-made changes

altered the natural flow of water such that a washout gully formed where the water flowed downhill

to the Bennetts’ property.

       Mr. Bennett also testified about the alterations to Contreras’ property. Before Contreras

added the concrete slab, knee-deep water would pool in his yard. When the water could no longer

pool, the washout gully was created. The jury was presented with numerous photographs depicting

all the alterations. Finally, Mr. Bennett testified about the destruction of the wall following the

August 1, 2006 rainstorm. He described the pristine condition of his backyard before the occurrence,

as well as the immense effort it took to remove the debris after the wall collapsed. The Bennetts also

introduced testimony as to the cost to replace their wall. Due to newer building codes, they could

not erect a wall under the same configuration. Instead, the new wall must be an engineered retaining

wall. Plans for the new wall were offered into evidence.

                                            The Verdict

       As to the Bennetts’ negligence claims, the jury found two proximate causes. They attributed

55 percent of the negligence to the Bennetts, 40 percent to Contreras and 5 percent to Margaret
Aboud. These findings barred the Bennetts’ recovery as to their negligence cause of action, but they

did not bar recovery under the Texas Water Code. As to those allegations, the jury found that

Contreras wrongfully diverted the natural flow of surface water in violation of Section 11.086(a).

They awarded $43,000 to restore the Bennetts’ wall and backyard to conditions existing before the

occurrence. The jury also awarded $25,000 for the diminution in market value of the Bennetts’

home.

                                   SUFFICIENCY OF THE EVIDENCE

         In Issues One and Two, Contreras complains that the evidence is legally and factually

insufficient because there is no evidence that the Bennetts’ rock wall would not have failed but for

the alleged diversions of surface water. The jury found Contreras liable based on a violation of the

Texas Water Code:

         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). The statutory elements are: (1) a diversion or

impoundment of surface water which (2) causes (3) damage to the property of the plaintiff

landowner. Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978),2 Bily v. Omni Equities, Inc, 731

S.W.2d 606, 611 (Tex.App.--Houston [14th Dist.] 1987, writ ref’d n.r.e.). The plaintiff carries the

burden to prove the unlawful diversion caused damages to the plaintiff’s property which would not

have resulted but for such unlawful diversion. Benavides v. Gonzalez, 396 S.W.2d 512, 514

(Tex.Civ.App.--San Antonio 1965, no writ), citing Roby v. Hawthorne, 77 S.W.2d 923, 925




2
 Kraft recited the elements referring to an earlier codification of the statute (Texas Water Code Section 5.086(a)), which
contained wording identical to the codification of the statute at the time of trial (Texas Water Code Section 11.086(a)).
See Kraft, 565 S.W.2d at 229; TEX.WATER CODE ANN. § 11.086(a).
(Tex.Civ.App.--Dallas 1934, writ dism’d). The claims for violations of the Water Code are not

dependent upon any finding as to Contreras’ negligence. Bily, 731 S.W.2d at 611.

         John Karlsruher, the Bennetts’ engineering expert, testified in detail about certain alterations

that were made to the defendants’ properties north of the crest line which diverted water toward the

Bennetts’ property. In support of his conclusion that the natural flow of water had been altered,

Karlsruher referred to: (1) a wire mesh fence constructed by an unknown party, located at the

southeast corner of Contreras’ property which the Bennetts’ contend was constructed to catch debris;

(2) a stack of rocks at the southwest corner of the Aboud’s wall;3 (3) a group of stones or cement

which appeared to have been placed on the crest line of Contreras’ property; and (4) a concrete slab

in Contreras’ backyard. Karlsruher summarized his opinion as follows:

         It is my opinion that in addition to the runoff from the face of the slope, what would
         have been below the crest, additional water flowed across from the Aboud property
         onto [Appellant’s], across [Appellant’s] onto Lozano and down the slope, water that
         should have been routed to Rocky Bluff or the other street in front that I forget the
         name of. But in either case, there was water contributed by the three properties that
         should have been going to the street that came down the slope into the Bennetts’
         yard.

Karlsruher stated further that the water was concentrated due to the man-made additions to the

properties which, “altered the natural flow of water and contribute[d] to the collapse of Mr. Bennett’s

back wall.”

         Q.       Let me ask you to look at Section 11.086, subsection [a] of the Texas Water
                  Code. Take just a second to read that, Mr. Karlsruher. All right. Based on
                  your experience, Mr. Karlsruher, based on your 26 years of experience in
                  designing drainage plans and implementing those designs in the City of El
                  Paso, during that course of time, and then based on your examination and
                  viewing of the Defendants’ property in this case, would it be your testimony
                  that the Defendant in this case diverted or impounded the natural flow of



3
  Although these rocks were stacked on the Aboud’s property, there was some suggestion at trial that Contreras may have
either placed the rocks in that location, or re-stacked the rocks there.
                surface waters in this state, or permitted a diversion or impounding by the
                Defendants to continue in a manner that damages the property of another by
                overflow of the water diverted or impounded?

        A.      Yes.

On cross-examination, he testified as follows:

        Q.      So the bottom line is if all of the subdivision above the Plaintiffs’ rock fence
                were in its natural state, but the Plaintiffs had the same rock fence that they
                had on August 1st, 2006, you can’t deny that the flow of water coming down
                that natural slope would have damaged the Plaintiffs’ rock fence and caused
                it to collapse, correct?

        A.      That’s correct.

        Mr. Bennett also testified regarding the alterations to Contreras’ property. Three-fourths of

Contreras’ backyard was now covered in cement, and a rock wall which had once been on the

property was buried at some point, raising the level of Contreras’ property. Mr. Bennett had

witnessed knee-deep water pooling in Contreras’ yard, but because of the cement, all of the water

was forced to flow onto the Bennett’s property.

        First, we address the legal sufficiency challenge. The test for determining whether an alleged

causative factor is a “but for” cause is whether the act or omission was a substantial factor in causing

the damage, “without which the harm would not have occurred.” Excel Corp. v. Apodaca, 81

S.W.3d 817, 820 (Tex. 2002), quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,

477 (Tex. 1995). On appeal, a legal sufficiency or “no evidence” challenge will be sustained if the

party suffering the adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the

court is barred by rules of law or evidence from giving weight to the only evidence offered to prove

a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the

evidences establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41
(Tex.App.--El Paso 2006, no pet.). The jurors are the sole judges of the weight and credibility to

give to witness testimony and if the evidence at trial would allow reasonable, fair-minded jurors to

differ in their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.33d at 819,

822; Pabon, 214 S.W.3d at 41.                So long as evidence falls within the zone of reasonable

disagreement, a reviewing court cannot substitute its own judgment for that of the trier of fact. City

of Keller, 168 S.W.3d at 819; Pabon, 214 S.W.3d at 41. However, if the evidence allows for only

one inference, neither the jurors nor the reviewing court may disregard it. Id.

          In viewing the evidence tending to support the verdict, we find some evidence which tends

to support the jury’s verdict. While it is true that some of Karlsruher’s testimony as to causation is

contradictory, it is the province of the jury to resolve the conflicts. In a legal sufficiency review, we

look to the evidence favorable to the jury’s verdict and determine whether a rational juror could have

reached that verdict. Based on the testimony of Karlsruher and Mr. Bennett, a rational juror could

have concluded that Contreras’ wrongful diversion of surface water was a substantial factor in

causing damage to the Bennetts’ property. We overrule Issue One.

          Next, we address factual sufficiency. After considering all evidence, we conclude that the

verdict is not so against the great weight and preponderance of the evidence as to be clearly wrong

or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); America West Airlines, Inc.

v. Tope, 935 S.W.2d 908, 912 (Tex.App.--El Paso 1996, no writ). While there is no testimony that

affirmatively states that Contreras’ diversion of surface water was the only cause of the Bennetts’

damages, there is evidence to support the finding that Contreras’ actions were a proximate cause of

the damages. Under Texas law, there can be more than one proximate cause.4 See Western



4
    The jury found that the Bennetts and Contreras proximately caused the damage through their respective negligence.
Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). We overrule Issue Two.

                                          DAMAGES

       In Issue Three, Contreras complains that the Bennetts were awarded damages for both the

cost of repairs and the diminution in value of the property, because the diminution was calculated

assuming that no repairs had been made. Texas law does not permit double recovery. The Parkway

Company v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995)(holding that homeowners bringing action

in connection with the flooding of their home received improper double recovery when they were

allowed an award of both cost of repairs and diminution of value of their home, because the

diminution in value was calculated assuming that no repairs had been made)(emphasis added). The

pertinent jury questions and answers are as follows:
       JURY QUESTION NUMBER EIGHT:

             What sum of money, if paid now in cash, would fairly and reasonably
       compensate JAMES ROBERT BENNETT and HILDA M. BENNETT for their
       damages, if any, that resulted from the occurrence in question?

               Consider the elements of damages listed below and none other. Consider
       each element of damage separately. Do not include damages for one element in any
       other element. Do not include interest on any amount of damages you find.

       A. Cost to Repair

              Consider the reasonable cost in El Paso County, Texas to restore the wall,
       including the backyard to the condition it was in before the occurrence in question.

               Answer in dollars and cents for damages, if any.

               Answer:        $43,000.00

       B. Difference in Market Value

              Consider the difference in market value in El Paso County, Texas, of JAMES
       ROBERT BENNETT and HILDA M. BENNETT’S property before the occurrence
       in question and immediately after the necessary repairs are made to the property
       (AND ASSUMING NO ACTION REGARDING THE PROPERTY ABOVE).

                ‘Market Value’ means the amount that would be paid in cash by a willing
       buyer who desires to buy, but is not required to buy, to a willing seller who desires
       to sell, but is under no necessity of selling.

               Answer in dollars and cents for damage, if any.

               Answer:        $25,000

[Emphasis added]. Question 8(b) clearly states that the jury is to calculate damages for diminution

in value after the necessary repairs are made. As the court explained in Parkway:

       Damages for diminution in value and damages for cost of repairs are not always
       duplicative. Diminution in value does not duplicate the cost of repairs if the
       diminution is calculated based on a comparison of the original value of the property
       and the value after repairs are made. [Emphasis in original].

Parkway, 901 S.W.2d at 441. Therefore, there is no double recovery to eliminate.
       In his reply brief, Contreras sidesteps the double recovery issue and focuses instead on the

sufficiency of the evidence to support the damage award. The Bennetts bore the burden at trial to

prove two separate values to recover diminution in value damages: (1) the original value of the

property before the damage occurred; and (2) the value of the property after repairs are made.

Parkway, 901 S.W.2d at 441; Ludt v. McCollum, 762 S.W.2d 575, 576 (Tex. 1988). Contreras

challenges only the second element, arguing, “Neither Mr. Harville, nor Mr. Bennett, nor any other

witness provided testimony or evidence regarding the post-incident value of the Bennetts’ home after

repairs are made.”

                          Relevant Testimony from Harville and Bennett

       At trial, Harville testified as the Bennetts’ real estate appraisal expert. After the flood,

Mr. Bennett asked him to prepare a market analysis for the value of his home. The following

testimony was elicited during direct examination:

       A:      [Mr. Harville]: I did a market analysis, but what -- it was very unusual. I had
               to come up with a price on what the property would be worth if it did not
               have the problems it had. And then I tried to subtract out damage costs, and
               what I call a little bit of stigma at this situation, due to the fact that it is now
               a flood-damaged property, and that has to be divulged from here on out.

       Q.      Any time a property that’s been flood damaged is sold in the future, after the
               flood damage, what’s required of the seller before the property can be listed
               as sold?

       A.      Whether it’s listed or whether a seller sells it by themselves, they have to
               provide a property disclosure statement in the State of Texas, and it asks all
               kinds of questions about is there any history of flooding. So it has to be
               divulged to a prospective buyer that the property has a flood damage history.

       Q.      And Mr. Bennett’s property, based on what you learned about the property,
               would it fall into that category of a property where that kind of thing would
               have to be disclosed?

       A.      Yes, it would.
       Q.      Okay. And as a result of him having to disclose that on any attempt in the
               future to sell the property, does that impact the value of the home at all?

       A.      Yes, it does.

       Counsel then asked Harville, based on his experience as a real estate broker, to approximate

the impact on the value of the home if the disclosure had to be made. Before Harville answered,

defense counsel asked to take him on voir dire and questioned him about his 2006 comparative

market analysis.

       Q.      [Counsel for Aboud]: Any of the homes in your analysis that are listed as
               flood damaged?

       A.      No.

       Q.      Any of the homes that you analyzed that you knew to have the same kind of
               damage to them as the Bennetts’ home?

       A.      No.

       Q.      And where did you -- what was the source, then, of your analysis of any
               economic impact on the value of the Bennetts’ home? I’m not asking you
               what that number was. I’m asking you for the source of the information.

       A.      Okay. Well, in my value that I gave to him, I took the fair market value and
               then the cost. Now, there was another factor in there that I used, diminished
               value, because of the flood. Is that the value you’re referring to?

       Q.      Yes, sir. What was the basis of your coming up to a diminished value if you
               did not compare the Bennetts’ home with other homes that had sustained
               flood damage?

       A.      It was my opinion just based on experience.

       The trial court excused the jury for a brief bench conference on the issue of Harville’s

qualifications under Rule 702 and whether he had any experience dealing with flood-damaged

properties. The Bennetts’ attorney asked the trial court to allow him to rehabilitate the witness, and

the trial court responded:
       [The Court]: I certainly think the market value price without the flood damage is
                    coming in. The problem they’ve got, as I understand it, is assigning
                    a number to the diminishing value of that home based on the damage,
                    through this witness. If you can find a way to rehab that, go right
                    ahead. Ask your questions. Let’s do it now.

       Still outside the presence of the jury, the Bennetts’ attorney took Harville on voir dire:

       Q.      Mr. Harville, based on your 31 years of experience as a real estate broker here
               in El Paso, have you had the opportunity to look at, in the past, flood-
               damaged properties to consider whether or not to sell or assist the buyer in
               buying those properties?

       A.      Not directly, no.

       Q.      Not directly?

       A.      No.

       [Bennetts’ counsel]: Your Honor, I’ll just establish the cost of the house and I’ll
       have to call Mr. Bennett then, on rebuttal.

       The examination of Harville continued as he was questioned about his report. Based on the

comparative market analysis he conducted, he was able to establish an approximate, “preflood,

predamaged value for Mr. Bennett’s home” of $160,000. Based on his experience and the decline

in the housing market, the value would be “a bit lower” than the $160,000 figure stated in his report.

He also testified that based on his experience in buying and selling homes in El Paso, he would not

list the Bennetts’ home because:

       [I]t’s just part of a good sound management risk program. And when you take on a
       piece of property, you have to decide whether or not it’s going to be worth it. With
       the disclosures and everything, it would be a very long and difficult sale, and there’s
       always a possibility of it coming back to you in court later on.

       On cross-examination, Harville admitted that in his comparative market analysis he suggested

a listing price of $155,516. At the time he made the report, and as of the last time he visited the

property (approximately two months prior to trial), the rock wall had not been replaced. But he
testified that he still would not list the property, even if he was told a properly-engineered retaining

wall had been built and that the engineer who designed the wall stated that the newly designed wall

would withstand “any further damage from flooding, from water, soil, debris coming down that slope

back there, and that there would be no further damage.”

           Finally, Harville was asked whether he had taken into consideration that the only physical

damage to the Bennetts’ property was to the rock wall itself, and that there was no damage to the

front yard, the exterior of the house, or its interior. Harville responded, “Yes, I did.”

           The following is Mr. Bennett’s rebuttal testimony in its entirety:

           Q.       [Counsel for the Bennetts]: Mr. Bennett, you were in the courthouse when
                    Mr. Harville testified. Is that correct?

           A.       Yes, sir.

           Q.       And you heard Mr. Harville’s testimony regarding the market value of your
                    house in 2006 when he first looked at this issue. Is that correct?

           A.       That’s correct.

           Q.       And it was $160,000?

           A.       That’s correct.

           Q.       And he said that by this day and time he would estimate that the market
                    value, based on the market itself, of your home in its undamaged state would
                    be approximately $140,000.5 Is that correct?

           A.       That’s correct.

           Q.       All right. Mr. Bennett, as the owner of the property there on Murchison
                    Drive, what do you believe that the market value of your home is in its
                    damaged state?

[Objections and side bar omitted]




5
    Despite a review of the entire record, it is unclear where this number originated.
       A.      $81,500.

       Q.      Okay. And that’s -- that’s your belief of the market value, what somebody
               might pay for your home if they were to come and look at your home -- and
               when I say your home I mean your home and your property. Do you
               understand that?

       A.      Yes, sir.

       Q.      Okay. What they might pay for your home today?

       A.      That’s correct. $81,500.

       Q.      Okay. If we were to -- if we were [sic] to the difference between Mr.
               Harville’s testimony regarding what the market value of your home would be
               today in its undamaged state and your testimony regarding the value of your
               home in its damaged state, what would be the diminution in value in your
               home?

       A.      Approximately fifty some odd thousand dollars.

       Q.      All right.

       As a threshold matter, the evidence must be legally and factually sufficient to support an

award of diminution in value damages. Here, Harville testified regarding the stigma associated with

flood damaged properties, and specifically stated that even though there was no damage to the house

or the front yard and even if a new properly-engineered retaining wall were erected, he would not

list the house for sale. If we assume, without deciding, that Harville’s testimony regarding the

negative impact on a home’s value after flood damage is sufficient to sustain an award for

diminution in value damages, the Bennetts’ still had to prove the value of those damages. See Royce

Homes, L.P. v. Humphrey, 244 S.W.3d 570, 575-77 (Tex.App.--Beaumont 2008, pet. denied)(finding

that diminution in value, or “stigma” damages may be allowed under Section 11.086(a), where a real

estate appraiser, who was familiar with flooded properties testified that flooded homes, even when

the flood occurs only once, generally suffer a diminished market value and opined that the flood in
that case would diminish the value of the plaintiff’s home, but that the evidence proving the amount

of damages must still withstand a sufficiency challenge).6

        Although the Bennetts proved the fair market value of the home before any damage occurred,

there is no evidence to support the value of the home if it were listed for sale in a post-flood, post-

repaired state. Mr. Bennett’s testimony merely established a value of the home as is. Accordingly,

we sustain Issue Three.

                                               CONCLUSION

        We reverse and render that the Bennetts take nothing in diminution damages. We modify

the judgment to delete that recovery and affirm the judgment as modified.


December 22, 2011
                                                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Chew, C.J. (Senior), Bramblett, Judge
Chew, C.J. (Senior), sitting by assignment
Bramblett, Judge, sitting by assignment




6
  We note that neither party has directed us to any case law which allows for diminution of value damages where the
home itself was not flooded and the backyard sustained all of the damage.
