                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-12-00181-CV


PETER PAYNE, MARY BETH                             APPELLANTS
PAYNE, DAVID HOWARD,
OKSANA HOWARD, MELVIN
HARRIS, DONNA HARRIS AND
CHRISTINA CHILDERS

                                    V.

J. BAKER CORPORATION                                APPELLEES
FORMERLY KNOWN AS LITTLE
ELM/2000, LTD., LANDSTAR
HOMES DALLAS, LTD., GCS
TRAILS OF FRISCO, L.P. D/B/A
THE TRAILS OF FRISCO GOLF
CLUB AND SUN DEN FRISCO
INVESTMENT, L.P. D/B/A THE
TRAILS OF FRISCO GOLF CLUB


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         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                      MEMORANDUM OPINION1

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

      In four issues, Appellants Peter and Mary Beth Payne, David and Oksana

Howard, Melvin and Donna Harris, and Christina Childers (collectively, the

Homeowners) appeal the trial court’s summary judgments for Appellees J. Baker

Corporation formerly known as Little Elm/2000, Ltd.; Landstar Homes Dallas,

Ltd.; GCS Trails of Frisco, L.P. d/b/a The Trails of Frisco Golf Club; and Sun Den

Frisco Investment, L.P. d/b/a The Trails of Frisco Golf Club (collectively, the

Developers).2 We reverse and remand.

                   II. Factual and Procedural Background

      The Homeowners live in the Eldorado Estates subdivision of Little Elm.

Cottonwood Creek, a natural creek, is adjacent to the Homeowners’ properties

and separates their rear property line from the Trails of Frisco Golf Club golf

course, which includes part of the creek. The Homeowners filed suit in June

2011 against the Developers and Highland Homes—their homebuilder—alleging

causes of action for violating water code section 11.086, negligence per se under

section 11.086, and common law negligence against all of the defendants.3

      All of the defendants filed no-evidence motions for summary judgment.

The Homeowners filed a consolidated response with the affidavit of their expert

      2
      The Developers are two subdivision developers (J. Baker and Landstar)
and two golf course owners (GCS and Sun Den).
      3
      The Homeowners also sued Highland Homes for breach of warranty,
breach of contract, violations of the Deceptive Trade Practices Act, and fraud,
among other claims.


                                        2
witness, licensed professional engineer Ralph Mansour,4 and accompanying

exhibits and moved for a continuance of the motions’ submission date. The trial

court denied the continuance as ―untimely‖ and granted each of the Developers’

motions.   After the trial court granted the Developers’ motion to sever the

remaining claims against Highland Homes, this appeal followed.

                                 III. Jurisdiction

      In their first issue, the Homeowners argue that the trial court did not grant

summary judgment as to all of their claims against Landstar and that they still

have a negligence cause of action pending against Landstar in the trial court,

depriving us of jurisdiction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195

(Tex. 2001) (―[T]he general rule, with a few mostly statutory exceptions, is that an

appeal may be taken only from a final judgment.‖).

      Landstar’s motion for summary judgment reflects that it moved for

summary judgment against the Homeowners ―on all claims asserted against

Landstar, specifically relating to violation of Texas Water Code §11.086 and

negligence.‖   In the motion, Landstar argued that the Homeowners had no

evidence that it had diverted or impounded water from the creek or that the

diverted or impounded water had overflowed onto the Homeowners’ property;


      4
       In his affidavit, Mansour, a geotechnical and structural engineering expert,
stated, among other things, that diverted surface water was ―eroding of [sic] the
supporting soils to Plaintiffs’ property, and . . . causing the areas behind the back
yards of the plaintiffs’ homes to subside, which in turn is causing movement
beneath Plaintiffs’ patios, fences, and in some instances[,] Plaintiffs’ homes.‖


                                         3
that section 11.086 does not apply to omissions and failing to build a retaining

wall ―is a non-action that cannot be the basis for liability under § 11.086‖; that the

occurrence of soil erosion to a creek bank located exclusively on property that is

not owned by the Homeowners or Landstar cannot be the basis of liability under

section 11.086; and that Landstar could not have performed erosion control work

on the creek bank behind the Homeowners’ property without trespassing onto

property owned by the Golf Course.         In its conclusion, Landstar specifically

stated that the Homeowners had ―no evidence to support any of the allegations

and pleadings in Count A, Count B, and Count C,‖ which is how the Homeowners

had identified the negligence per se, section 11.086, and common law

negligence claims in their petition, and it requested summary judgment on all of

the Homeowners’ claims. The trial court’s order granted Landstar’s motion ―in its

entirety.‖

       From this record, it appears that Landstar in fact moved for summary

judgment as to the Homeowners’ negligence claim, even if improperly,5 and that

the trial court granted it. And when the trial court granted the Developers’ motion

to sever, Landstar’s summary judgment became final.            Therefore, we have

jurisdiction over the appeal, and we overrule the Homeowners’ first issue.



       5
      Rule 166a(i) does not authorize general no-evidence challenges or
conclusory motions. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009). The rule requires the moving party to specifically challenge the
opponent’s evidentiary support for an element of a claim or defense. Id.


                                          4
                       IV. Adequate Time for Discovery

      In their fourth issue, the Homeowners argue that the trial court erred by

granting the no-evidence summary judgments because they did not have an

adequate time for discovery.

A. Applicable Law

      As it touches on discovery for a no-evidence summary judgment motion,

there is no requirement that discovery be completed; the requirement is that an

adequate amount of time be allowed for discovery. Specialty Retailers, Inc. v.

Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

Whether a nonmovant has had adequate time for discovery under rule 166a(i) is

case specific. Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339

(Tex. App.—Dallas 2002, no pet.); McClure v. Attebury, 20 S.W.3d 722, 729

(Tex. App.—Amarillo 1999, no pet.). In deciding whether a trial court abused its

discretion by denying a motion for continuance seeking additional time to conduct

discovery, we consider factors such as the length of time the case has been on

file, the materiality and purpose of the discovery sought, and whether the party

seeking the continuance has exercised due diligence to obtain the discovery

sought. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).

Further, the court may consider the nature of the case, the nature of the evidence

necessary to address the no-evidence motion, and whether the movant

requested stricter discovery deadlines, as well as the amount of discovery that




                                        5
has occurred and the nature of the discovery deadlines in place. LaRue v. Chief

Oil & Gas, L.L.C., 167 S.W.3d 866, 872 (Tex. App.—Fort Worth 2005, no pet.).

B. Analysis

      This matter involves three causes of action filed by seven plaintiffs in June

2011 against five defendants, four of whom are involved in this appeal. In their

first amended petition, the Homeowners alleged that the creek ―ha[d] been

subject to significant flooding and erosion‖ and that the Developers and Highland

Homes had failed to properly protect their properties from that erosion.

Specifically, they alleged that ―[t]he unprotected and exposed creek bank walls

have eroded and continue to erode[,] causing damage to [their] properties‖; that

the Developers and Highland Homes’s ―actions and/or inactions have resulted in

damages‖; and that the Developers and Highland Homes’s ―actions and/or

inactions have resulted in an alteration of the natural flow of surface waters in a

manner that damaged‖ their properties.       The Homeowners sought damages

under water code section 11.086 and for negligence per se and common law

negligence.

      Landstar filed its answer on July 18, 2011, and J. Baker Corp. filed its

answer on July 21, 2011.6 The record does not reflect that any of the Developers

filed special exceptions to the Homeowners’ petition. Less than four months after



      6
        The record does not contain GCS and Sun Den’s original answer but
reflects that they filed an amended answer on December 20, 2011.


                                        6
answering, the Developers filed their no-evidence motions, on November 3, 9,

and 18, 2011, respectively, and set them for hearing on January 6, 2012.

      Under water code section 11.086(a), 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.         See Tex. Water Code Ann.

§ 11.086 (West 2008). Therefore, in their no-evidence motions, the Developers

each argued that there was no evidence of an affirmative act to divert or impound

surface water from Cottonwood Creek or that diverted or impounded water from

Cottonwood Creek caused an overflow of water onto the Homeowners’

properties7 and that they had no duty to protect the Homeowners’ property from

the effects of erosion related to the creek.8


      7
        To its no-evidence motion, Landstar attached the affidavit of Steven E.
Langhoff, an executive vice president of Landstar’s general partner, in which he
stated that Landstar had never diverted or impounded water from the creek. J.
Baker Corporation attached an affidavit by John Baker—presumably its owner—
stating that J. Baker Corporation had never diverted or impounded water from the
creek. And GCS and Sun Den attached the affidavit of Stephen Lee—
presumably one of their corporate officers—stating that GCS and Sun Den had
never diverted or impounded water from the creek and that he had never seen
the creek rise to the point where it would overflow onto the Homeowners’
properties. However, while a no-evidence summary judgment movant may file
evidence with the motion, we may not consider that evidence ―unless it creates a
fact question.‖ Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).
      8
       Further, the Developers couched the Homeowners’ claims as seeking to
hold them liable for impounding or diverting water from the creek, which would
not count as ―surface water‖ under the statute. See Raburn v. KJI Bluechip Invs.,
50 S.W.3d 699, 704 (Tex. App.—Fort Worth 2001, no pet.) (stating that ―surface
waters‖ consist of water or natural precipitation diffused over the surface of the

                                          7
      Three days before the summary judgment hearing, the Homeowners filed

a motion for continuance, requesting additional time for discovery.9 As argued by

the Homeowners, supported by the affidavit attached to the motion, and reflected

in the record, the Homeowners had previously agreed to extend the discovery

ground until it evaporates, is absorbed by the land, or reaches a bed or channel
in which water is accustomed to flowing). However, among the other allegations
in their first amended petition, the Homeowners alleged that the Developers’
―actions and/or inactions have resulted in alteration of the natural flow of surface
waters in a manner that damaged‖ their properties. [Emphasis added.] See
Pasquinelli Portrait Homes-Durango Ridge LP v. Securlock at Bedford, Ltd., No.
02-11-00392-CV, 2013 WL 1234852, at *5 (Tex. App.—Fort Worth Mar. 28,
2013, no pet. h.) (mem. op.) (holding that if flooding was a result of diversion of
rainwater ―instead of, say, water overflowing from the detention pond,‖ then
appellee was not barred from asserting a claim under section 11.086).
Therefore, while allegations pertaining to water already in the creek would not
state a claim under section 11.086, an allegation that damages were caused by
alteration of the natural flow of surface waters before they reached the creek
would. See, e.g., Contreras v. Bennett, 361 S.W.3d 174, 177–80 (Tex. App.—El
Paso 2011, no pet.) (holding that evidence was legally and factually sufficient to
support verdict on section 11.086 claim when plaintiffs alleged that massive
quantities of surface water had been unlawfully, wrongfully, and negligently
diverted, retained, or impounded to spill over onto and into the plaintiffs’ property,
causing property damage and plaintiffs’ engineering expert testified in detail
about certain alterations made to the defendants’ properties that diverted water
toward the plaintiffs’ property and caused water that should have been routed
elsewhere to cross plaintiffs’ property).
      9
        While the Developers assert that the Homeowners waived this complaint
by not timely filing their motion for continuance, the rules of civil procedure and
case law do not set forth a period of time prior to submission of a no-evidence
summary judgment motion by which a request for additional time for discovery
must be filed, and the record does not contain any pretrial order setting forth
such a deadline. Compare Tex. R. Civ. P. 251, with City of Houston v. Blackbird,
658 S.W.2d 269, 272–73 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d)
(overruling complaint that the trial court abused its discretion by denying motion
for continuance when motion was unverified and untimely in that it was presented
to the trial court on the day of the hearing for which the continuance was sought
and not filed until three days later).


                                          8
deadline for GCS and Sun Den, had noticed depositions of the Developers’

representatives concerning factual information on the Homeowners’ claims in late

October, and had set the depositions for December.         The Developers then

moved to quash the depositions, filing their no-evidence motions within ten days

later. Although the hearing on the motions to quash had originally been set for

November 23, 2011, it was later reset to December 16, 2011, upon the

Developers’ request, and then reset again to January 20, 2012, after the date of

the summary judgment hearing.

      In their motion for continuance, the Homeowners asserted that quashing

the depositions greatly prejudiced them because they had to

      secure sworn testimony regarding information that is critical to
      responding to the motion, regarding Defendants[’] actions, the
      hydrology studies or documents they submitted to governmental
      agencies, applications for permits, and other important information is
      needed from said defendants who are unavailable for deposition
      until after the Court rules on the motions to quash on January 20,
      2012. This information is material to the no-evidence summary
      judgments as they focus on defendants’ actions in diverting surface
      waters.

            Further, the issues surrounding these summary judgments
      involve expert testimony regarding soil issues and hydrology studies
      that have been performed by non-parties. Plaintiffs need time to
      depose these individuals and retain experts.

See Palma v. Chribran Co., 327 S.W.3d 866, 870–72 (Tex. App.—Beaumont

2010, no pet.) (concluding that plaintiffs were required to present testimony from

a hydrology expert or other qualified expert with regard to the movement of water

to support their claim under section 11.086).



                                        9
      The Homeowners also noted that they were gathering information to obtain

from FEMA and the City of Frisco, via the Freedom of Information Act,

documents that were material to the Developers’ actions in diverting surface

waters, that there was no scheduling order in the case, and that this was their

first request for a continuance. To their motion, the Homeowners attached an

affidavit explaining the need for the continuance, exhibits showing how long the

case had been on file, the August 25, 2011 rule 11 agreement, and the

November 3, 2011 letter confirming the November 23, 2011 hearing date for the

motions to quash.10

      10
        In their motion for reconsideration, the Homeowners added:

      The changes to the flood plain in question were caused by man-
      made alterations to the flow of surface waters. Liability in this case
      will center on what Defendants knew, when they knew it, what they
      did about it, and whether what they did or did not do was the proper
      thing to do. Expert witness testimony will be a critical part of this
      trial. As [the Homeowners] argued in their affidavit filed in support of
      their motion to continue, it was vital for [the Homeowners] to take the
      depositions of all four defendants prior to having to respond to the
      MS[J], so they could determine several matters: (1) the exact scope
      of work engaged in by each Defendant as to hydrology studies; (2)
      total amount of surface water the defendants represented to the
      government they were diverting into the flood plain; (3) []to identify
      agencies or individuals who performed those studies on behalf of the
      builder and developer, and (4)[] obtain governmental documentation
      regarding permits and requested authority to add fill on various lots
      and to change the flood [plain] requirements to reflect added change
      on the ground.

At the hearing on the motion for reconsideration, the Homeowners argued that
the ―depositions would have been critical to formulating a proper[,] well[-]defined
Freedom of Information Act request‖ because the Developers had made
representations to FEMA about how their developments would affect flooding.


                                        10
      The record is incomplete with regard to the amount of discovery that had

occurred by the time the trial court granted summary judgment.           The record

contains the August 25, 2011 rule 11 agreement between the Homeowners and

GCS and Sun Den in which the Homeowners agreed to give GCS and Sun Den

until September 16 to respond to discovery, but the nature of the discovery is not

discussed. On November 14, 2011, GCS propounded written discovery to each

of the Homeowners—seven sets of interrogatories, seven sets of requests for

production (with several duplicate requests), and four sets of requests for

disclosure. And as previously set out, the Homeowners had noticed depositions

of the Developers’ representatives, but these were met with motions to quash

that were ultimately set to be heard after the summary judgment hearing. And

while the Developers sought to quash their representatives’ depositions,

representatives of each of the Developers signed affidavits that were attached in

support of their respective no-evidence motions.

      Finally, the record reflects that no pretrial order involving discovery or a

discovery control plan was in place and that the Homeowners had requested a

Level 3 discovery control plan in their first amended original petition. See Tex. R.

Civ. P. 190.4(b) (stating that ―the discovery limitations of Rule 190.2 [Level 1], if

applicable, or otherwise of Rule 190.3 [Level 2] apply unless specifically changed

in the discovery control plan ordered by the court‖). Because the Homeowners

did not affirmatively plead for the amount of monetary relief set out in rule 190.2,

and the trial court had not ordered a discovery control plan, Level 2 discovery


                                         11
applied.11   See Tex. Sup. Ct. R. 190.2(a)(1) (West 1998, superseded 2013),

available    at   http://www.supreme.courts.state.tx.us/MiscDocket/98/98-9196.pdf

(stating that Level 1 discovery applies to any suit in which all plaintiffs

affirmatively plead that they seek only monetary relief aggregating $50,000 or

less, excluding costs, pre-judgment interest, and attorneys’ fees).

      A Level 2 discovery period ends thirty days before the date set for trial, or

―nine months after the earlier of the date of the first oral deposition or the due

date of the first response to written discovery.‖ Tex. R. Civ. P. 190.3(b)(1)(B)(i)–

(ii). The record does not reflect that a trial date had been set. The due date for

written discovery propounded by the Homeowners prior to agreeing to an

extension with GCS was September 2, 2011, and if the depositions sought by the

Homeowners had not been quashed, the earliest deposition date would have

been December 2, 2011. Therefore, under rule 190.3, the discovery period in

this case would have ended—at the earliest—nine months after September 2,

2011. See id.

      Because both the case and the no-evidence motion had only been on file

for a short time, the discovery sought was material to defeating the Developers’

      11
         We note that on February 12, 2013, the supreme court issued an order
rewriting rule 190.2(a)(1) to reflect that Level 1 discovery applied to answer any
suit governed by the expedited actions process in rule of civil procedure 169.
See Misc. Docket No. 13-9022 (Tex. Feb. 12, 2013, order), available at
http://www.supreme.courts.state.tx.us/miscdocket/13/13902200.pdf.         However,
the order provides that rule of civil procedure 169 and the amendments to rule
190 apply to cases filed on or after March 1, 2013, except for those filed in justice
court. Id. Because the Homeowners filed suit in the district court in June 2011,
we apply the earlier rule.

                                         12
summary judgment grounds, the motions to quash the depositions of the

Developers’ representatives had not yet been heard, and the discovery deadline

under Level 2 had not yet passed, we conclude that the trial court abused its

discretion by denying additional time to the Homeowners to conduct discovery to

address the no-evidence motions, and we sustain their fourth issue.12 See Joe,

145 S.W.3d at 161; LaRue, 167 S.W.3d at 872; cf. Palma, 327 S.W.3d at 868,

872 (affirming summary judgment on section 11.086 claims when developer filed

no-evidence motion approximately twenty-one months after plaintiffs filed suit

when plaintiffs failed to present expert evidence regarding causation). Based on

our resolution here, we need not reach the Homeowners’ remaining issues. See

Tex. R. App. P. 47.1.




      12
        The Developers cite Restaurant Teams and McClure to support their
argument that the amount of time here was adequate, but these cases are
inapplicable. In Restaurant Teams, while the court held that the seven months
that the case had been on file at the time the motion was filed constituted an
adequate time, the claims at issue—breach of contract, fraud, and unjust
enrichment—required no more ―than minimal discovery, if any discovery at all,‖ to
defeat the no-evidence motion. 95 S.W.3d at 339–40. In McClure, another case
holding that the seven months the case was on file at the time the motion was
filed was adequate, the nonmovant offered no affidavit to explain why he needed
more time and the threshold question was one of deed construction, for which
―discovery requirements would be minimal.‖ 20 S.W.3d at 729–30.


                                       13
                               V. Conclusion

      Having overruled the Homeowners’ first issue and sustained the

Homeowners’ fourth issue, we reverse the trial court’s judgment and remand the

case to the trial court.


                                                BOB MCCOY
                                                JUSTICE

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

DELIVERED: May 16, 2013




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