K & K Inez Properties, LLC, David Kucera, and Valerie Kucera v. Clay Kolle and Lacy Kolle

                            NUMBER 13-21-00460-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG


K & K INEZ PROPERTIES, LLC,
DAVID KUCERA, AND
VALERIE KUCERA,                                                               Appellants,
                                                    v.

CLAY KOLLE AND LACY KOLLE,                                                    Appellees.


                    On appeal from the 135th District Court
                          of Victoria County, Texas.


                           MEMORANDUM OPINION
               Before Justices Benavides, Tijerina, and Peña
                 Memorandum Opinion by Justice Tijerina

      Appellants K & K Inez Properties, LLC, (K&K), David Kucera, and Valerie Kucera1

appeal a jury verdict in favor of appellees, Clay Kolle and Lacy Kolle. By seven issues

that we have renumbered and reorganized, appellants contend that (1) the evidence is


      1 David and Valerie are married, and David is the sole member of K&K.
legally and factually insufficient to support many of the jury’s findings, (2) the trial court

erred by not including appellants’ proposed question in the jury charge regarding

appellees’ negligence, (3) the trial court erred by granting appellees’ motion to strike

Victoria County as a responsible third party (RTP), (4) “the [trial] court erred in awarding

[appellees] not only damages for diminished fair market value, but also damage[s] for

past and future loss of use of their real property”; (5) “the [trial] court erred in awarding

joint and severable liability against K&K and Valerie”; (6) “the [trial] court erred in

computing the recovery of punitive damages,” and (7) “[t]here is no alternative basis for

affirming the trial court’s judgment.” We reverse and render in part and affirm in part.

                             I.     PROCEDURAL BACKGROUND

       Appellees, who are married, own approximately 126 acres of land northwest of

Inez, Texas. They have a home on a portion of the land and use the rest of the land for

grazing cattle. The evidence showed that when appellees purchased the land in 2013,

the surface water drained properly on the property, which was consistent with the natural

northwest to southeast pattern. Appellants owned an adjacent property to the east of

appellees’ property. The water from appellees’ property drained to an unnamed tributary

to Leona Creek, which passes through appellants’ property. Appellants developed this

portion of their property into a residential neighborhood known as Pura Vida. Appellants

own parts of Pura Vida and maintain an easement that runs along the boundary of Pura

Vida next to appellees’ property.

       Appellees sued appellants, in pertinent part, for nuisance and trespass; appellees

also accused Valerie of engaging in a conspiracy. Specifically, appellees complained, as


                                              2
relevant here, that appellants improperly and illegally constructed a berm and dam on

their property that impounded and pushed back surface water onto appellees’ property;

that the dam and berm prevented the natural flow of water through the unnamed tributary;

and that appellants intentionally diverted the flow of water, causing the impoundment and

accumulation of surface water on appellees’ property. A jury trial was held.

       After hearing the evidence, the jury found as discussed in further detail below,

among other things, that appellants had caused a nuisance and Valerie had engaged in

a conspiracy. The jury found that David and K&K were each forty percent responsible,

and Valerie was twenty percent responsible. The jury awarded appellees economic

damages of $175,000 in diminution in market value of their property and $250,000 in past

and future loss-of-use damages. The jury found that David and K&K committed gross

negligence. The jury ordered David to pay Clay $250,000 in exemplary damages and

$500,000 in exemplary damages to Lacy, and it ordered K&K to pay Clay and Lacy each

$250,000 in exemplary damages.

       The trial court entered judgment on the verdict. It ordered, in pertinent part, for

David to pay $170,000, K&K to pay $170,000, and Valerie to pay $85,000 in economic

damages. The trial court held Valerie and K&K jointly and severally liable for the entire

$425,000 of economic damages. The trial court ordered that both David and K&K each

pay exemplary damages of $200,000 to Clay and $200,000 to Lacy. This appeal followed.

                          II.    SUFFICIENCY OF THE EVIDENCE

       By their first issue and by what we construe as several sub-issues, appellants

contend that “[t]he evidence was insufficient to support several key findings by the jury.”


                                            3
Specifically, appellants argue that there is legally and/or factually insufficient evidence to

support: (1) a finding that “Valerie created a nuisance”; (2) a finding that Valerie engaged

in a conspiracy; (3) the apportionment of responsibility; (4) “separate punitive damage

awards against David and K&K”; and (5) the amount of punitive damages awarded.

A.      Standard of Review

       A “no evidence” or legal insufficiency challenge is a question of law challenging

the sufficiency of the evidence to support a particular fact finding. In re Estate of

Livingston, 

, 879 (Tex. App.—El Paso 1999, no pet.). The test for legal

sufficiency is “whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 

(Tex. 2005). We review the evidence in the light most favorable to the verdict, crediting

any favorable evidence if a reasonable factfinder could and disregarding any contrary

evidence unless a reasonable factfinder could not. 

 at 821–22, 827. If the evidence at

trial “would enable reasonable and fair-minded people to differ in their conclusions,” we

will not substitute our judgment for that of the factfinder. 

.

       A no-evidence point will be sustained when (1) there is a complete absence of

evidence 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 mere scintilla, or (4) the evidence conclusively establishes

the opposite of a vital fact. King Ranch, Inc. v. Chapman, 

 (Tex.

2003); see City of Keller, 

. Less than a scintilla of evidence exists when

the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a


                                               4
fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 

 (Tex. 1983).

       In reviewing a factual-sufficiency challenge to a finding on an issue on which the

appellant did not have the burden of proof, we will set aside the verdict “only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.”

Cain v. Bain, 

 (Tex. 1986) (per curiam). We examine the entire

record, considering both the evidence in favor of, and contrary to, the challenged finding

in our factual sufficiency review. Mar. Overseas Corp. v. Ellis, 

, 406–07

(Tex. 1998). We must weigh all the evidence, not just that evidence which supports the

verdict. Dow Chem. Co. v. Francis, 

 (Tex. 2001); Mar. Overseas

Corp., 971 S.W.2d at 406–07. If we determine that the evidence is factually insufficient to

support the jury’s findings, we must “detail the evidence relevant to the issue” and “state

in what regard the contrary evidence greatly outweighs the evidence in support of the

verdict.” Dow Chem. Co., 

.

       Whether reviewing the legal or factual sufficiency of the evidence, the jurors are

the sole judges of the credibility of the witnesses and the weight to be given their

testimony. City of Keller, 

. The amount of evidence necessary to affirm

is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex.

Ltd. P’ship v. Pascouet, 

 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied). We must show deference to the jury’s resolution of conflicts in the evidence, and

we must presume that the jury resolved all conflicts in favor of the verdict. City of Keller,

168 S.W.3d at 820–21. We may not substitute our own judgment for that of the jury, even


                                             5
if we would reach a different answer based on the evidence. GTE Mobilnet of S. Tex. Ltd.

P’ship, 

 (citing Mar. Overseas Corp., 

).

B.     Finding that Valerie Created a Nuisance

       By their first issue, appellants contend that “[t]he evidence was legally and factually

insufficient to support the jury’s finding that Valerie created a nuisance.” Specifically,

appellants argue that the evidence “arguably” supports a finding that David created the

alleged nuisance of flooding appellees’ property by building a berm and a dam; however,

there is “no evidence of any actions taken by Valerie.” Appellants assert that although

Valerie “may have been an owner of K&K by virtue of her marriage, or an officer, or that

she was a loving wife who supported her husband’s actions on the part of K&K,” this

evidence is “woefully insufficient to show, either directly or circumstantially, that [Valerie]

played any part individually in creating a nuisance.” Appellees respond that the evidence

sufficiently supports the jury’s finding that Valerie contributed to creating the nuisance

because when K&K transferred ownership of part of appellants’ property to Valerie that

contained a portion of the berm, “Valerie continued to maintain the berm on her property

and thus created a nuisance when the berm on the property she owned caused water to

be impounded on” appellees’ property.

       1.     Nuisance

       “A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment

of land by causing unreasonable discomfort or annoyance to persons of ordinary

sensibilities attempting to use and enjoy it.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner,

 (Tex. 2016) (quoting Holubec v. Brandenberger, 

, 37


                                              6
(Tex. 2003)). A private nuisance includes the following elements:

       (1) the plaintiff had an interest in the land; (2) the defendant interfered with
       or invaded the plaintiff’s interest by conduct that was negligent, intentional,
       or abnormal and out of place in its surroundings; (3) the defendant’s conduct
       resulted in a condition that substantially interfered with the plaintiff’s use and
       enjoyment of his land; and (4) the nuisance caused injury to the plaintiff.

Cerny v. Marathon Oil Corp., 

 (Tex. App.—San Antonio 2015, pet.

denied). The Texas Supreme Court clarified “that the term ‘nuisance’ does not refer to the

‘wrongful act’ or to the ‘resulting damages,’ but only to the legal injury—the interference

with the use and enjoyment of property—that may result from the wrongful act and result

in the compensable damages.” Crosstex N. Tex. Pipeline, L.P., 

.

       A defendant may be held liable for intentionally causing a nuisance. 

. The

intent necessary contemplates that “the actor desires to cause [the] consequences of his

act, or that he believes that the consequences are substantially certain to result from it.”

 “[A] defendant may be held liable for intentionally causing a nuisance based on proof

that he intentionally created or maintained a condition that substantially interferes with the

claimant’s use and enjoyment of land by causing unreasonable discomfort or annoyance

to persons of ordinary sensibilities attempting to sue and enjoy it.” 

 at 604–05.

       A defendant may also be held liable for negligently causing a nuisance. 

.

“In this category, the claim is governed by ordinary negligence principles. The elements

the plaintiff must prove are ‘the existence of a legal duty, a breach of that duty, and

damages proximately caused by the breach.’” 

 (quoting IHS Cedars Treatment Ctr.,

Inc. v. Mason, 

, 798 (Tex. 2004)).




                                               7
      2.     Analysis

      Question 2 in the jury charge asked, “Did any of those named below, [(Valerie,

David, and K&K)] intentionally create a private nuisance.” The instructions to Question 2

were as follows:

      A person creates a “private nuisance” if their conduct substantially interferes
      with [appellees’] use and enjoyment of their land.

      “Substantial interference” means that a person’s conduct must cause
      unreasonable discomfort or annoyance to a person of ordinary sensibilities
      attempting to use and enjoy the person’s land. It is more than a slight
      inconvenience or petty annoyance.

      Appellants focus their argument on their belief that Valerie’s maintenance of the

berm on her own property is not considered a nuisance in itself because she did not

personally create the berm. However, during the trial and in their pleadings, appellees

claimed that appellants created a nuisance by causing flooding and impounding of water

on their property. Appellees’ allegations of a nuisance were not solely based on that fact

that David built a berm or a dam on his property. Instead, appellees claimed that the berm

and the dam, among other things, caused the nuisance of flooding. They did not claim

that the berm and dam themselves constituted a nuisance.

      Appellees continuously focused their complaint of a nuisance to the impoundment

of water or flooding on their property, which they claimed prevented them from using and

enjoying their property. Thus, appellees did not allege that Valerie created a nuisance

merely because she owned property containing the berm that caused their property to

flood. Instead, they alleged, and the jury found, that by not removing the berm after

purchasing the property, she created the nuisance of flooding or impoundment of water


                                            8
on appellees’ property because her conduct substantially interfered with appellees’ use

and enjoyment of their land. Appellants do not specifically challenge this finding.

       Nonetheless, there is evidence in the record that prior to purchasing the property

from K&K, Valerie personally witnessed the flooding on appellees’ property. See Crosstex

N. Tex. Pipeline, L.P., 505 S.W.3d at 604–05. In addition, there was evidence that when

she purchased this property from K&K, Valerie was aware that appellees were alleging

that the berm, among other things, had caused the flooding because appellees had

already sued David and K&K on that basis. See id. The evidence showed that

nonetheless, Valerie did not remove the berm and allowed the berm on her property to

be augmented, which then caused more flooding on appellees’ property. See id. After

reviewing the evidence in the light most favorable to the verdict, crediting any favorable

evidence if a reasonable factfinder could and disregarding any contrary evidence unless

a reasonable factfinder could not, we conclude that there is legally sufficient evidence to

support a finding that Valerie created or maintained a nuisance. See City of Keller, 168

S.W.3d at 821–22, 827; see also Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 604–05.

       Although appellants state that the evidence is factually insufficient, they have not

provided any legal analysis of that issue, and they do not point to any contrary evidence

in the record that makes the jury’s finding on this issue factually insufficient. See TEX. R.

APP. P. 38.1(i); Lowry v. Tarbox, 

 (Tex. App.—San Antonio 2017,

pet. denied) (Appellants purport to challenge the legal and factual sufficiency of the

evidence to support the jury’s finding of fraud damages. However, appellants argue only

that there is no evidence to support the jury’s finding. For this reason, any intended


                                             9
factual-sufficiency challenge is inadequately briefed and will not be addressed.”). “When

appellants fail to discuss the evidence supporting their claim or apply the law to the facts,

they present nothing for review.” Lowry, 

. Moreover, to reverse a verdict

for factual insufficiency, we must “detail the evidence relevant to the issue in consideration

and clearly state why the jury’s finding is factually insufficient or is so against the great

weight and preponderance as to be manifestly unjust, shock the conscience, or clearly

demonstrates bias.” Windrum v. Kareh, 

, 781 (Tex. 2019); Dow Chem.

Co., 

. We are not required to scour this voluminous record to find

evidence which goes against the jury’s finding that Valerie created a nuisance. See Keyes

Helium Co. v. Regency Gas Servs., L.P., 

 (Tex. App.—Dallas 2012,

no pet.) (“This court does not have a duty to review a voluminous record without guidance

from the appellant to determine whether its assertion of reversible error is valid.”); see

also Lloyds v. Vega, No. 13-16-00090-CV, 

, at *13 (Tex. App.—Corpus

Christi–Edinburg Apr. 12, 2018, no pet.) (mem. op.) (“Because we have no duty to scour

the record to support State Farm's factual sufficiency challenges, we are unable to detail

all the evidence relevant to the issue and clearly state why the jury's findings are factually

insufficient or so against the great weight and preponderance of the evidence that is

manifestly unjust.”). Without guidance from the appellants, we are unable to do so. See

 Therefore, in this case, we are unable to conclude that the evidence is factually

insufficient to support the challenged finding. See Keyes Helium Co., 

;

Valadez v. Avitia, 

 (Tex. App.—El Paso 2007, no pet.) (“An appellate

court has no duty-or even right-to perform an independent review of the record and


                                             10
applicable law to determine whether there was error.”); see also N&A Properties, Inc. v.

PH Steel, Inc., 

, 570 (Tex. App.—El Paso 2022, no pet.) (concluding that

the appellant failed to properly brief her factual sufficiency issue by only including “a single

sentence challenge to factual sufficiency.”). Accordingly, viewing the entire record and

weighing all the evidence, we are unable to conclude that the jury’s finding “is so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust.” See Cain,

; see also Mar. Overseas Corp. v. Ellis, 971 S.W.2d at 406–07. We

overrule this issue.

C.     Finding that Valerie Conspired

       By a first sub-issue to their first issue, appellants contend that “the evidence is

insufficient [to support a finding] that Valerie was a conspirator.”

       1.     Applicable Law

       The charge asked the jury to determine whether Valerie conspired to cause

damages to appellees’ property. The charged instructed that “[t]o be part of a conspiracy,

[Valerie] and another person or persons must have had knowledge of, agreed to, and

intended a common objective or course of action that resulted in the damages to

[appellees]. One or more persons involved in the conspiracy must have performed some

act or acts to further the conspiracy.” We must evaluate the sufficiency of the evidence

based on the charge given when neither party objects to it. See Osterberg v. Peca, 

 (Tex. 2000).

       “Conspiracy may be established by circumstantial evidence.” Lesikar v.

Rappeport, 

 (Tex. App.—Texarkana, pet. denied). “A conspiracy may


                                              11
be proven as well by the acts of the conspirators, as by anything they may say, touching

what they intended to do.” 

 (quoting Int’l Bankers Life Ins. Co. v. Holloway, 

 (Tex. 1963)).

        2.      Analysis

        Appellants do not challenge the jury’s finding that David caused a nuisance. Thus,

the only question before us is whether there is legally sufficient evidence that Valerie had

knowledge of, agreed to, and intended for David to have created a nuisance that resulted

in the damages. See Triplex Commun’ns, Inc. v. Riley, 

 (Tex. 1995)

(discussing the elements of civil conspiracy).

        At trial, appellees’ theory of the case was that appellants caused a nuisance on

their property by performing several activities that caused water to flood their property

and to stay on their property for long periods. 2 Appellees presented evidence that

appellants also placed items along the fence line including among other things, a sprayer

truck, jet skis, old tires, and other junk. Appellees claimed that David dug ditches, filled

culverts with junk and dirt, and built a dam and berms on his property which interfered

with the natural flow of the water that then caused flooding and impounding of water on

appellees’ property. Appellees presented evidence that Valerie’s failure to remove the

berm from her property improperly altered the drainage of water, which contributed to the

nuisance. According to appellees, appellants’ acts of causing their property to flood and

not drain properly resulted in dead trees on their property and the loss of enjoyment of


        2 “[T]he term ‘nuisance’ refers not to a defendant’s conduct or to a legal claim or cause of action

but to a type of legal injury involving interference with the use and enjoyment of real property. Crosstex N.
Tex. Pipeline, L.P. v. Gardiner, 

 (Tex. 2016).

                                                    12
the property. Appellees alleged that Valerie conspired with David in the common objective

of causing their property to flood and causing drainage issues.

       David’s employee, Matthew Nelson, stated that David told him that David

redirected the path of a creek to prevent the creek from flooding David’s house, which

David had built directly next to a floodplain. Nelson further testified that David told him to

fill some ditches to “show” appellees “what it’s like without them and really flood them

out.” Additionally, Nelson stated that David told him that he had placed junk along the

fence line “to give [appellees] something ugly to stare at.” According to Nelson, David

instructed him to hang green tarps on the fence line because David wanted to prevent

appellees from “see[ing] what [David was] doing.”

       David acknowledged that he had been “building [the berms] up” on his property

since 2016, even though he knew that appellees’ property was flooding. David denied

that his own engineer told him not to build the berms, denied any knowledge of needing

to remove the berms, and denied that appellees’ attorney sent him a letter informing him

that the berms and certain ditches needed to be removed. Nonetheless, appellees

presented evidence contradicting David’s denials.

       David stated that Valerie, who did not testify at trial, had not been a defendant until

K&K sold ninety-nine acres of the property to Valerie. Fifty acres located on the ninety-

nine-acre property contained the berm that caused water to flood appellees’ property.

Thus, the evidence showed that it was after appellees sued David and K&K for causing

the flooding on their property, Valerie purchased a portion of the property that contained

the berm.


                                             13
       When appellees asked David about junk that he placed in a ditch and about other

decisions he made that caused flooding, David continuously used the term, “we.” For

example, he said,

       We were adding in a—more or less a filter because the culvert pipe just
       goes all the way to the fence, so [appellees] had a little bit of debris fall
       against the culvert pipe, it will get stopped up, so I done this [sic] which
       resets the culvert back three feet and creates, more or less, a filter which
       cannot get stopped up to help the water flow, keep flowing off their property.

David denied that appellants had “stuck all this junk on the [appellees’] fence line,” and

claimed appellants’ acts were not related to flooding appellees’ property. The jury was

free to disbelieve this testimony and believe Nelson that appellant placed the junk on his

property to “to give [appellees] something ugly to stare at,” to prevent the natural flow of

water from flooding appellants’ house, and to “show” appellees “what it’s like without them

and really flood them out.” See City of Keller, 

.

       Regarding Exhibit 114, which shows that appellants were “hauling more dirt over

towards the dam and berm on” their property, David said, “Now, where we were hauling

it to, I can’t say for sure,” and “[w]e might be feeding some cows at that time. I don’t know.”

When confronted with evidence that someone on his property was operating his tractor

on dry land and placing more dirt in the ditch, while appellees’ property was flooded, David

replied, “[W]e’re not blocking water anywhere. We’re slowing the water down. We’re not

blocking the water.”

       David denied that appellants were placing dirt in a ditch to keep the water from

appellees’ property from “getting down to [his] house.” David contradicted Nelson’s

testimony that David redirected the path of a creek to prevent the creek from flooding


                                              14
appellants’ house. When discussing why he had brought more dirt on dump trucks onto

his property, David said, “We were just doing repairs, again, from the washout, so we

were doing repair work.” (Emphasis added).

       Evidence was presented that after Valerie purchased her portion of the property,

she also placed junk on the fence line, and the trial court admitted pictures of the junk.

David testified that this junk on Valerie’s property was removed one week prior to the trial.

From this evidence, the jury was free to infer that Valerie like David placed the junk on

the fence line “to give [appellees] something ugly to stare at” and thereafter removed the

junk one week prior to trial. See 

       Additionally, evidence was presented that Valerie sent a text to members of an

adjacent subdivision owned by appellants named, Pura Vida, informing them that David

built the dam in accordance with the specifications as set out by the Texas Commission

on Environmental Quality (TCEQ) and Brice Thomas, a “watermaster” from TCEQ who

had contacted David informing him of a complaint by appellees that there was water on

their property. The evidence shows that Valerie’s statements in the texts were false

because TCEQ does not provide specifications for dams and Thomas had not in fact

stated that the dam was properly built. David acknowledged that Thomas stated that

David had not complied with Thomas’s specifications when he built the dam. Thus, the

jury could have reasonably inferred that Valerie knew that the dam was improperly

constructed and sought to deceive the residents of Pura Vida about the safety of the dam

because she had agreed with David to “flood [appellees] out.” See 

                                             15
       According to David, he and Valerie were “trying to accomplish the same thing.”

Appellants argue this meant that Valerie merely wanted their business to succeed and

that nothing in the record proves that David meant that Valerie intended to cause

damages to appellees. However, based on evidence that, Valerie placed junk on the

fence line after she purchased the property, just like David had previously done to provide

something “ugly” for appellees to see and evidence that Valerie falsely claimed that David

built the dam in compliance with TCEQ specifications, the jury could have reasonably

inferred that Valerie was aware of David’s acts. The jury could have further inferred that

when David said we were “trying to accomplish the same thing,” Valerie had agreed with

his acts and intended to give appellees’ something “ugly” to look at and intended to flood

them out just as David told Nelson he intended to do. Therefore, after reviewing the

evidence in the light most favorable to the verdict, crediting any favorable evidence if a

reasonable factfinder could and disregarding any contrary evidence unless a reasonable

factfinder could not, we conclude that there is legally sufficient evidence that Valerie was

a conspirator. See 

 at 821–22, 827.

       Although appellants state that the evidence is factually insufficient to support the

jury’s finding that she acted as a conspirator, they do not point to any contrary evidence

in the record that makes the jury’s finding on this issue factually insufficient. See TEX. R.

APP. P. 38.1(i); Manning v. Johnson, 

, 884–85 (Tex. App.—Texarkana

2021, no pet.) (“Bare assertions of error, without argument or authority, waive

error . . . . This rule also applies to complaints about the sufficiency of the evidence.”).

Moreover, we are required to set out the facts that make this finding factually insufficient:


                                             16
however, without assistance from appellants, we are unable to do so. See Windrum, 581

S.W.3d at 781; see also Lloyds, 

, at *13. Accordingly, we overrule this

issue.3

D.        Apportionment of Responsibility

          By a second sub-issue to their first issue, appellants contend that the evidence is

legally insufficient to support the jury’s answer to Question 7 regarding the apportionment

of responsibility as follows: (1) forty percent to David; (2) twenty percent to Valerie; and

(3) forty percent to K&K. Specifically, appellants argue that there is insufficient evidence

to support (1) “any assignment of responsibility to Valerie”; and (2) “separate percentages

for K&K and David” because “determining percentages of liability does not apply to a

defendant whose liability is purely vicarious.”

          The charge instructed the jury to answer Question 7 if it “answered ‘Yes’ to any

part of Questions 1, 2, 3, 4, or 5, for more than one of those named below . . . Assign

percentages of responsibility only to those you found caused or contributed to cause the

harm” to appellees’ property. The jury answered yes to question 1, 2, 3, 4, and 5 finding


          3 Appellants argue that as a matter of law, they were unable to conspire with K&K because of their

status as corporate agents. However, this argument has been waived because appellants did not make this
argument in the trial court or request such a question for the jury, and appellants do not explain how we are
able to reverse the judgment on a ground not argued in the trial court. See First Nat. Collection Bureau,
Inc. v. Walker, 

 (Tex. App.—Dallas 2011, pet. denied) (“To preserve error for a legal
sufficiency issue as to a jury trial, ‘the appellant must raise the issue through one of the following: (1) a
motion for directed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the
submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or
(5) a motion for new trial.’” (citing Martin v. Martin, 

, 746–47 (Tex. App.—Texarkana 2010,
pet. denied)); see also Grisel v. Everest Int’l, LLC, No. 02-19-00401-CV, 

, at *15 (Tex.
App.—Fort Worth Mar. 10, 2022, pet. denied) (“Defendants did not raise this matter-of-law point in the trial
court. As noted, to preserve a matter-of-law issue for our review, the Defendants were required to raise it
in the trial court through one or more of the five methods we listed previously.”)). Moreover, the jury was
not asked to determine whether K&K engaged in a conspiracy, and there is no such conclusion by the trial
court in the judgment.

                                                      17
that appellants violated the Texas Water Code, engaged in a conspiracy to cause

damages, committed a trespass, created a nuisance, and negligently created a private

nuisance.

       1.      K&K

       First, appellants state that the trial court was barred by the rule of law “that

determining percentages of liability does not apply to a defendant whose liability is purely

vicarious.” See Pierre v. Swearingen, 

 (Tex. App.—Dallas 2011, no

pet.) (concluding that the trial court did not err in rendering judgment against the

appellants jointly and severally because one appellant’s liability was “purely derivative

and its level of negligence is considered to be commensurate with that of” the other

appellant). Appellants state, “In order to apportion separate percentages of responsibility,

therefore, there must be sufficient evidence of not only vicarious liability, but direct liability

as well.” Therefore, as we understand it, it appears that appellants argue that because

K&K was merely vicariously liable, the trial court’s question asking the jury to apportion

responsibility should have been supported by evidence of K&K’s direct liability. Thus, it

appears that part of appellants’ complaint goes to the form of the question asked as

opposed to the sufficiency of the evidence.

       To the extent that appellants’ argument attacks the question given, it lacks merit

because in the trial court, appellants requested that the trial court include in the charge a

question regarding the percentage of responsibility of each party including David and

K&K. The trial court included such a question in the jury charge. This is considered invited

error, and appellants are not allowed to complain of error that they invited. See HNMC,


                                               18
Inc. v. Chan, 

, 936–37 (Tex. App.—Houston [14th Dist.] 2021, pet.

granted). (“The invited error doctrine holds that ‘a party cannot complain on appeal that

the trial court took a specific action that the complaining party requested.’ Thus, a party

cannot encourage a trial court to submit a jury question in a particular form and then

contend on appeal that the charge was erroneous.”).

        Additionally, appellants did not argue in the trial court that separate percentages

as to David and K&K were prohibited because liability was purely vicarious, and they did

not request a question regarding vicarious liability. See First Nat. Collection Bureau, Inc.

v. Walker, 

 (Tex. App.—Dallas 2011, pet. denied). Appellants do not

argue on appeal that the evidence did not conclusively establish vicarious liability. See

TEX. R. APP. P. 38.1(i). Therefore, appellants have waived this issue. See 

 (citing Martin

v. Martin, 

, 746–47 (Tex. App.—Texarkana 2010, pet. denied)); see also

Los Compadres Pescadores, L.L.C. v. Valdez, 

, 839 (Tex. App.—Corpus

Christi–Edinburg 2019), aff’d, 

 (Tex. 2021) (“Rule 279 ‘provides that,

unless the issue was conclusively established by the evidence, a party’s failure to submit

a properly worded issue, or to object to its omission, results in waiver.’”); Minnesota Min.

& Mfg. Co. v. Nishika Ltd., 

 (Tex. App.—Beaumont 1994), rev’d on

other grounds, 

 (Tex. 1997); Grisel v. Everest Int’l, LLC, No. 02-19-00401-

CV, 

, at *15 (Tex. App.—Fort Worth Mar. 10, 2022, pet. denied) (mem.

op.).

        Moreover, we must analyze the legally sufficiency of the evidence by the question

provided to the jury. Osterberg, 

 (citations omitted) (“[I]t is the court’s


                                             19
charge, not some other unidentified law, that measures the sufficiency of the evidence

when the opposing party fails to object to the charge.”). And here, instead of asking for a

question regarding vicarious liability, appellants sought a question about K&K’s and

David’s individual liability. Appellees provided evidence that David acted partly in his own

interest and partly in the interest of K&K. There was evidence that David set up the berm

and dam to protect his personal residence from flooding and that David acted on K&K’s

behalf to protect Pura Vida from flooding. Thus, viewing the evidence in the light most

favorable to the verdict, if a reasonable factfinder could and disregarding any contrary

evidence unless a reasonable factfinder could not, we cannot conclude that the evidence

is legally insufficient to support a finding that K&K was individually liable for the flooding.

See City of Keller, 168 S.W.3d at 821–22, 827. We overrule appellants’ second sub-issue

to their first issue.

        2.      Valerie

        Next, by what we construe as a third sub-issue, although appellants state that there

is factually insufficient evidence to support any apportionment of responsibility to Valerie,

they do not provide any legal argument with citation to appropriate authority explaining

why Valerie should not be apportioned any responsibility when the jury found she violated

the Texas Water Code, engaged in a conspiracy to cause damages, committed a

trespass, created a nuisance, and negligently created a private nuisance. See TEX. R.

APP. P. 38.1(i); Interest of A.B., 

, 96 (Tex. App.—Texarkana 2022, pet.

denied) (concluding that the Mother waived her legal and factual sufficiency claim

“because without any explanation of how the evidence fails to meet this evidentiary


                                              20
standard and without any discussion of the evidence whatsoever,” she “fail[ed] to set out

a clear and concise argument for this contention”). It is the appellants’ burden to establish

that the finding is not support by factually sufficient evidence. Zhang v. Capital Plastic &

Bags, Inc., 

, 91 (Tex. App.—Houston [14th Dist.] 2019, pet. denied); see

also Lloyds, 

, at *13. Here, without guidance from appellants, we are

unable to determine which finding is against the great weight and preponderance of the

evidence. See Zhang, 587 S.W.3d at 91. Moreover, as stated above, appellants have not

shown that Question 7 was erroneous. We overrule appellants’ third sub-issue.

E.      Separate Award of Punitive Damages Against David and K&K

        By a fourth sub-issue to their first issue, appellants contend that “[t]he evidence is

factually and legally insufficient to support separate punitive damage awards against

David and K&K and the amounts awarded are excessive, both constitutionally and as a

factual matter.” 4 Appellants base this argument on a belief that the proportionate

responsibility question should not have asked the jury to determine actual damages

caused by David and K&K. However, appellants have not met their appellate burden to

show that Question 7 was improper with citation to proper authority and legal analysis.

See TEX. R. APP. P. 38.1(i). Accordingly, we overrule appellants’ fourth sub-issue to their

first issue.

                                   III.    APPELLEES’ NEGLIGENCE

        By their second issue, appellants contend that the trial court should have included

        4 Appellants generally allege in the title to this issue that “the amounts awarded are excessive, both

constitutionally and as a factual matter.” However, appellants have not provided legal analysis with citation
to pertinent authority to support this general allegation. Therefore, we conclude it is inadequately briefed.
See TEX. R. APP. P. 38.1(i).

                                                     21
a question regarding appellees’ negligence in the jury charge.5 An affirmative answer on

a question regarding appellees’ negligence would have allowed the jury to then apportion

appellees’ responsibility, if any, in causing the damages. See TEX. CIV. PRAC. & REM.

CODE ANN. § 33.003 (establishing that the jury “shall determine the percentage of

responsibility . . . [of] each person’s [fault in] causing or contributing to cause in any way

the harm for which recovery of damages is sought, whether by negligent act or omission”).

        At the charge conference and in their written requests for jury questions, appellants

requested the following: “Did negligence by [appellees], if any, proximately cause injury

to [appellees’] property? Answer ‘Yes’ or ‘No.’” Additionally, at the charge conference

appellants stated, “we believe that there’s sufficient evidence in the record to submit a

question for negligence” because appellees instructed “the bulldozer operator to drive a

bulldozer right next to their trees,” “authorized the use of the herbicides near their oak




        5 Appellants use, among other things, the term “contributory negligence” in their brief in describing

appellees’ alleged negligence. The doctrine of contributory negligence is no longer a viable defense in
Texas. See Abalos v. Oil Dev. Co. of Tex., 

 (Tex. 1976) (“The Legislature of Texas
has now abolished contributory negligence as an absolute bar and has substituted the doctrine of
comparative negligence.”); Quintana v. CrossFit Dall., L.L.C., 

 (Tex. App.—Dallas
2011, no pet.) (“With the adoption of [c]omparative negligence, the defense of contributory negligence and
the defense of ‘Assumption of Risk’ were both merged with comparative negligence and those defenses
were abolished in Texas as confirmed in Farley v. MM Cattle Co., 

 (Tex. 1975)” (internal
quotations omitted)); see also Nabors Well Servs., Ltd. v. Romero, 

 (Tex. 2015)
(“Under contributory negligence, if a plaintiff was even one percent at fault, he or she could not recover.”)
(cleaned up). To support this issue, appellants cite only to authority concerning the doctrine of contributory
negligence prior to the Legislature’s abolition of that doctrine. See Abalos, 

; Quintana,

; see also Area Metro. Ambulance Auth. v. Reed, No. 02-22-00406-CV, 

, at *6 (Tex. App.—Fort Worth Apr. 20, 2023, no pet.) (mem. op.) (explaining that in 1973, the
Texas Legislature eliminated the doctrine of contributory negligence “by adopting article 2212a, which was
subsequently replaced with the comparative responsibility framework in Chapter 33 of the Texas Civil
Practice and Remedies Code” and that “[i]n 1995, the Legislature modified Chapter 33 by replacing
comparative responsibility with proportionate responsibility). However, appellants did not request that a
question on contributory negligence be submitted to the jury in the trial court. We construe appellants’ first
issue as complaining of the trial court’s refusal to submit a question regarding appellees’ negligence to the
jury.

                                                     22
trees” and “failed to put in barriers to protect their trees from the bulldozer work.”

(Emphasis added). The trial court refused to include the requested question and based

on that refusal, rejected appellants’ request for a question regarding proportionate

responsibility.6

        In their brief, appellants generally cite evidence they claim supports a finding that

appellees’ were negligent as follows: (1) “‘mechanical damage’ was the primary factor in

damaging or killing the oak trees; (2) the “mechanical damage” was caused by “the

operation of heavy equipment on sandy loam soil, such as a dozer, the effect of which

was to disturb the trees’ root systems”; (3) appellees “hired contractors to clear out

vegetation . . . and apply herbicides”; (4) “some type of machinery” caused damage to a

tree’s root collar; (5) “damage to the trees could also have been the result of ‘feathering’

the dirt during [a] clean-up operation in 2011”; (6) “herbicide damage on [appellees’]

property” occurred; (7) appellees “appreciated the risk of harm” that the use of heavy

equipment and herbicides posed to their oak trees; (8) appellees admitted that “they

cautioned their contractors to not disturb or destroy their trees,” which shows that they

understood the risks; and (9) appellees “could have erected some type of protection

around the trees, like fencing, but did not.”

        To have been entitled to a question on appellees’ negligence, appellants must

have provided evidence that: (1) a legal duty existed; (2) that duty was breached; and

(3) the damages were the proximate result from that breach. See City of Austin v.

        6 Currently in Texas, pursuant to the proportionate responsibility doctrine, a defendant may request

that the jury consider the plaintiff’s fault in causing injuries and that “conduct that may be considered in this
determination, includ[e] negligent acts or omissions as well as any conduct or activity that violates an
applicable legal standard.” Nabors Well Servs., Ltd. v. Romero, 

 (Tex. 2015).

                                                      23
Membreno Lopez as Next Friend of Lopez, 

, 210 (Tex. App.—Austin

2021, pet. denied). Appellants do not address any of the elements of negligence in their

brief. Additionally, they do not provide a legal analysis explaining how the above-listed

evidence supports each element of negligence, including how appellees’ alleged acts

and/or omissions proximately caused the damages. See TEX. R. APP. P. 38.1(i); B.T.

Healthcare, Inc. v. Honeycutt, 

 (Tex. App.—Amarillo 2006, no pet.)

(providing that under the proportionate responsibility doctrine, to apportion a party’s fault,

there must be evidence in the record illustrating that the accused party committed

negligence); see also TEX. R. CIV. P. 278 (“The court shall submit the questions,

instructions and definitions in the form provided by Rule 277, which are raised by the

written pleadings and the evidence.”). Moreover, appellants do not contend that the

exclusion of this question caused them any harm. See Columbia Rio Grande Healthcare,

L.P. v. Hawley, 

 (Tex. 2009) (explaining that a judgment for charge

error will be reversed only if the error was harmful because it probably caused the

rendition of an improper verdict or probably prevented an appellant from properly

presenting the case to the appellate courts). Therefore, to the extent that appellants

complain on appeal that the trial court should have included their requested negligence

question, we cannot conclude that the trial court abused its discretion by refusing to do

so or that appellants were otherwise harmed by such error, if any.7 See 

 (noting that


        7 Appellees point out correctly that appellants are complaining of damages that were allegedly

caused by third-party contractors. Specifically, appellants refer to acts committed by a bulldozer that was
not operated by appellees and the acts of another hired person who sprayed the herbicides on the property.
However, appellants do not allege and do not provide analysis explaining how appellants would be
responsible for the alleged negligence of these third-party actors. Moreover, evidence was presented that
the work performed was based on a conservation plan recommended by the Natural Resources
Conservation Service, which evidence showed “vastly improved the appearance and value of the property.”
                                                   24
we review the trial court’s decisions regarding the jury charge for an abuse of discretion).

We overrule appellant’s second issue.

                                  IV.     RESPONSIBLE THIRD PARTY

        By their third issue, appellants contend that the trial court erred by granting

appellees’ motion to strike the trial court’s designation of Victoria County as an RTP.

Appellees respond that the trial court did not err because appellants failed to present

more than a scintilla of evidence that Victoria County was negligent and thus responsible

for the injuries sustained.

A.      Applicable Law and Standard of Review

        A defendant may designate a person or an entity as an RTP. TEX. CIV. PRAC. &

REM. CODE ANN. § 33.004(a). The trial court may not submit a question to the jury

regarding the RTP’s conduct without sufficient evidence to support the submission. Id.

§ 33.003(b). The jury determines the percentage of an RTP’s responsibility if the evidence

shows that the RTP either caused or contributed to cause in any way the claimant’s

damages, “whether by negligent act or omission, by any defective or unreasonable

dangerous product, by other conduct or activity that violates an applicable legal standard,

or by any combination of these.” Id. at § 33.003(a).


Appellees further argue that the bulldozer operator and the person who sprayed the herbicides were both
independent contractors, which they argue means appellees were not responsible for their negligence, if
any. See AEP Tex. Cent. Co. v. Arredondo, 

, 295 (Tex. 2020) (explaining that “no duty of
care arose with respect to an independent contractor’s work by virtue of the employer’s general right . . . to
direct when and where the work was done”); Johnston v. Oiltanking Hous., L.P., 

 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (“Generally, a premises owner or general contractor has no duty
to ensure that an independent contractor safely performs his work[;]. . . . [however,] when the [landowner]
retains some control over the independent contractor’s work, [he] must exercise that control with reasonable
care.”). We agree with appellees that appellants have not shown on appeal and did not present evidence
in the trial court sufficient to show that appellees were responsible for the negligent acts or omissions, if
any, committed by their independent contractors.

                                                     25
       “After adequate time for discovery, a party may move to strike the designation of

[the RTP]” on the basis that there is no evidence that the designated party is responsible

for any portion of the plaintiff’s injuries. 

 at § 33.004(l). “Then, the burden shifts to the

designating party to ‘produce[ ] sufficient evidence to raise a genuine issue of fact

regarding the designated person's responsibility for the claimant’s injury or damage.’”

Gregory v. Chohan, 

, 566 (Tex. 2023).

       Our standard of review mirrors that of a no-evidence summary judgment. 

Therefore, to defeat a motion, a party must specifically identify the supporting proof on

file that it seeks to have considered by the trial court. See Arredondo v. Rodriguez, 

 (Tex. App–San Antonio 2006, no pet.); Gregory, 670 S.W.3d at 566.

“Whether the proof establishes as a matter of law that there is no genuine issue of fact’

is to ask a question of law, which means that review of the denial of a [RTP] designation

is de novo.” Id.; Flack v. Hanke, 

 (Tex. App.—San Antonio 2010,

pet. denied) (setting out standard of review of a decision pursuant to § 33.004(l)).

       A defendant produces sufficient evidence to raise a genuine issue of fact when the

evidence “rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions.” King Ranch, Inc., 

 (quoting Merrell Dow Pharms.,

Inc. v. Havner, 

 (Tex. 1997)). There is less than a scintilla of evidence

when the evidence is “so weak as to do no more than create a mere surmise or suspicion”

of a fact. Kindred v. Con/Chem, Inc., 

 (Tex. 1983); see also In re Transit

Mix Concrete & Materials Co., No. 12-13-00364-CV, 

, at *3 (Tex.

App.—Tyler May 14, 2014, no pet.) (mem. op.) (“For instance, under the equal inference


                                              26
rule, evidence of circumstances equally consistent with two facts does not rise above a

scintilla of proof of either fact, and is thus no evidence of either.”) citing City of Keller, 

.

       Therefore, to defeat appellees’ motion to strike the RTP designation of Victoria

County, appellants must have produced sufficient evidence to raise a genuine issue of

fact that Victoria County caused or contributed to cause in any way appellees’ damages

“whether by negligent act or omission, by any defective or unreasonable dangerous

product, by other conduct or activity that violates an applicable legal standard, or by any

combination of these.” See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). Accordingly,

there must be more than a scintilla of evidence of a legal duty owed to appellees by

Victoria County, a breach of that duty, and damages to the appellees proximately caused

by Victoria County’s breach of the duty. See Crosstex N. Tex. Pipeline, L.P., 

 (setting out the elements of negligence); see also Tenaris Bay City Inc. v. Ellisor,

No. 14-22-00013-CV, 

, at *10 (Tex. App.—Houston [14th Dist.] Aug.

31, 2023, no pet. h.) (mem. op.) (explaining that to be entitled to RTP designation, the

defendant had to establish that there is some evidence of each element of negligence).

B.     Analysis

       Appellants discredit and contest much of appellees’ evidence regarding who

caused the flooding to their property. Appellants claim that their burden was merely to

show that Victoria County “caused or contributed to causing in any way” appellees’

damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(a). However, § 33.003(a)

further instructs that the RTP must have “caused or contributed to causing in any way”


                                               27
appellees’ damages “whether by negligent act or omission, by any defective or

unreasonable dangerous product, by other conduct or activity that violates an applicable

legal standard, or by any combination of these. . . .” Id. at § 33.003(a); see also Tenaris

Bay City Inc., 

, at *10. Thus, to be designated an RTP, Victoria County

must have contributed to causing the flooding and pooling of water by a negligent act or

omission. See 

      Appellants do not address the elements of § 33.003(a) in their brief. See TEX. R.

APP. P. 38.1(i). Moreover, appellants do not claim that Victoria County either had a duty

to appellees or that Victoria County breached such a duty. See Crosstex N. Tex. Pipeline,

L.P., 

; see also Tenaris Bay City Inc., 

, at *10.

Therefore, appellants have not met their burden of showing that they raised an issue of

genuine fact regarding Victoria County’s negligence. See TEX. CIV. PRAC. & REM. CODE

ANN. § 33.003(a)

      Nonetheless, appellants claim that Victoria County caused the damages to

appellees’ property by widening and deepening a tributary that ran through the land,

which occurred ten years prior to the flooding on appellants’ property. Appellants claim

that the widening and deepening of the tributary “increased the volume and flow of surface

and drainage water in some parts of the Tributary” and that this then caused flooding and

impounding of water on appellants’ property that then caused flooding and impounding of

water upstream on the appellees’ property. 8 Although appellants claim that Victoria

      8 Specifically, appellants state in their brief without citation to the record the following:


      To date, therefore, the Tributary downstream of Pura Vida had never been deepened,
      widened, or otherwise cleared. As a result, surface and drainage water in the Tributary that
      should have been flowing downstream towards Leona Creek was backing up instead,
                                                     28
County’s acts caused the flooding to their own property and to appellees’ property, they

do not cite the record wherein such evidence was presented to the trial court. We are not

required to scour a voluminous record to find such evidence.9 See Dunn v. Bank-Tec S.,

 (Tex. App.—Amarillo 2003, no pet.) (explaining that “it is not our

duty to scour the trial record for evidence supporting [the appellant’s] contention,

especially in a multi-volume record like that before us”); see also Lloyds, 

, at *13 (refusing to “scour” a voluminous record to address the appellant’s


        flooding the adjacent properties. This was causing flooding and the impounding of water
        on the Kucera Parties’ property, which in turn was causing flooding and the impounding of
        water upstream from the Kucera property, on the Kolle property.

        ....

        The pretrial evidence showed that the increased volume and flow of surface and drainage
        water facilitated by the culverts installed by the County, combined with the backup,
        flooding, and impounding caused by the County’s failure to deepen and widen the Tributary
        downstream of Pura Vida, had directly caused both the properties in question to flood, hold
        water, and/or accommodate unreasonably high volumes of surface and drainage water at
        a more severe degree, nature, and frequency than if the County had acted in a prudent
        manner in respect to the Tributary projects. The pre-trial evidence therefore gave rise to
        genuine issues of material fact about the County’s responsibility for all, or at least a part of,
        the Kolles’ alleged damages. A reasonable jury, relying on this evidence, could have found
        that the County’s actions “caused or contributed to causing in any way” the Kolles’ alleged
        damages. As a result, the trial court should have denied the Kolles’ motion to strike the
        County as an RTP.

        Without citation to the record, we are unable to determine that these claims were in fact presented
with evidence to the trial court. Stults v. Conoco, Inc., 

 (5th Cir. 1996) (“the nonmovants
must “identify specific evidence in the record” and articulate the “precise manner” in which that evidence
supports its claims).
        9 Appellants cite evidence in the record that they claim support a finding that (1) Victoria County’s

acts of widening and deepening the tributary was imprudent; (2) Victoria County failed to obtain consent
from downstream property owners to widen their portion of the tributary; (3) such failure to obtain consent
was improper; (4) the volume of water was increased by Victoria County’s acts; (5) Victoria County’s acts
could possibly cause “water backup”; (6) Wayne Dierlam, a Victoria County commissioner testified that he
was against widening and deepening the tributary because he could not obtain the required consents from
all the property owners’ (7) Dierlam believed doing so would be imprudent; (8) in 2011, “the County added
four 24-inch culverts under Nickel Road to increase drainage from the large field north of Nickel Road
southward into the Tributary”; and (9) “the culverts directly caused an increase in the volume of surface and
drainage water flowing from the property north of Nickel Road into the Tributary.” None of this evidence
supports a finding that Victoria County caused or contributed to appellees’ damages.

                                                      29
factual sufficiency contention).

       Moreover, the evidence shows that appellees’ property started flooding after

appellants’ activities, which included, among other things, building the berm and the dam.

There is no evidence that appellees’ property flooded prior to the construction of the dam

and berm. Therefore, appellants failed to raise an issue of genuine fact supporting a

finding that Victoria County’s acts or omissions caused or contributed to the flooding.

Accordingly, we cannot conclude that the trial court erred in granting appellees’ motion to

strike Victoria County as a RTP. We overrule appellants’ third issue.

                            V.     THE AMOUNT OF THE JUDGMENT

       By their fourth, fifth, and sixth issues, appellants contend that “[t]he trial court erred

in calculating the amount of the judgment and applying the rule of joint and several

liability.” Specifically, appellants argue that the trial court erred in calculating damages in

“three different ways,” which we renumber as follows: (1) “the [trial] court erred in

awarding [appellees] not only damages for diminished fair market value, but also damage

for past and future loss of use of their real property”; (2) “the [trial] court erred in awarding

joint and severable liability against K&K and Valerie”; and (3) “the [trial] court erred in

computing the recovery of punitive damages.” Appellants seek modification of the jury’s

award of actual and punitive damages.

A.     Future Loss of Use of Real Property

       By their fourth issue, appellants contend that appellees sought damages for

permanent damage to real property; therefore, they were not entitled to loss of use and

enjoyment damages pursuant to the economic feasibility exception. Appellees respond


                                               30
that appellants “misunderstand and misapply the Texas Supreme Court’s decisions in

Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 

 (Tex. 2014)

and” Crosstex N. Tex. Pipeline LP, 

. Appellees do not dispute that the

trial court awarded damages for permanent injury to their property but as we understand

it, appellees maintain that although the injury was “‘deemed permanent for the purposes

of calculating repair damages,” nonetheless, “landowners can recover ‘loss of use’

damages” in these circumstances.

       Generally, when damage to real property is temporary, “the proper measure of

damages is the cost to restore or replace, plus loss of use.” Enbridge, 

.

However, when damage to real property is permanent, the plaintiff is entitled to the loss

in fair market value. See 

 Thus, “‘the true measure of damages in case of permanent

injury to the soil is the difference between the value of the land immediately before the

injury and its value immediately after.’” 

 at 478–79 (quoting Fort Worth & D.C. Ry. Co.

v. Hogsett, 

 (1887)). A permanent injury entitles a landowner to the loss

in the fair market value of the property but not to the loss of use. 

.

       However, “Texas courts have recognized the so-called economic feasibility

exception to the general rule” regarding a temporary injury to the property. 

 The

economic feasibility exception “applies when the cost of required repairs or restoration

exceeds the diminution in the property’s market value to such a disproportionately high

degree that the repairs are no longer economically feasible.” 

. Accordingly, “[i]n

those circumstances a temporary injury is deemed permanent, and damages are

awarded for loss in fair market value.” 

 Once a temporary injury is deemed permanent,


                                             31
the parties do not recover for loss of use damages, and we find no cases stating

otherwise. See Enbridge, 

; cf. J&D Towing, LLC v. Am. Alt. Ins. Corp.,

 (Tex. 2016) (permitting recovery of a diminution in market value of a

truck and loss of use damages, but not dealing with real property).

         Here, in their motion for entry of judgment, appellees requested for the trial court

to render judgment based on, in pertinent part, the following:

         Although the jury found that, assuming “the dams, berms, roads or other
         obstructions” were removed, the Plaintiffs’ property was capable of being
         repaired, fixed, or restored and the injury to the land was “of such a
         character that any anticipated recurrence would be only occasional,
         irregular, intermittent, and not reasonably predictable,” the Court finds that
         cost to repair, fix, or restore the Kolles’ property are limited to the difference
         in the market value of the Kolles’ property under the “economic feasibility”
         exception.

Thus, appellees conceded in the trial court that the economic feasibility exception applies,

and the trial court awarded the loss of the fair market value of the property to appellees.

Consequently, appellees admitted and the trial court agreed that as a matter of law their

damages were deemed permanent. See Enbridge, 449 S.W.3d at 478–79. As such,

appellees were not entitled to loss of use damages. See 

 We sustain appellants fourth

issue.

B.       Joint and Several Liability

         By their fifth issue, appellants contend that the trial court erred by holding Valerie

and K&K jointly and severally liable. First, appellants argue that “K&K cannot be jointly

and severally liable for the entire amount of actual damages awarded” because K&K is

only forty percent responsible for the alleged harm. Second, appellants argue that Valerie

cannot be held jointly and severally liable because appellees “elected to recover based

                                                32
on the jury’s findings that [appellants] intentionally and negligently created a private

nuisance, even though the claims for intentional nuisance and negligent nuisance were

mutually exclusive of one another.”

       1.     K&K

       Appellants complain on appeal that K&K cannot be held jointly and severally liable

for the economic damages because its percentage of responsibility is not greater than

fifty percent. See TEX. CIV. PRAC. REM. CODE ANN. § 33.013(b). Pursuant to § 33.013(b),

if the defendant’s percentage of responsibility is greater than fifty percent, that defendant

is jointly and severally liable for the damages. Id. However, the defendant “is liable to a

claimant only for the percentage of the damages found by the trier of fact equal to that

defendant’s percentage of responsibility” if the percentage of liability is less than fifty

percent. Here, the jury found K&K only forty percent liable. Id. 33.013(a).

       Nonetheless, appellants acknowledge that the trial court held K&K jointly and

severally liable under the theory of respondeat superior. “Generally in Texas, the doctrine

of vicarious liability, or respondeat superior, makes a principal liable for the conduct of his

employee or agent.” F.F.P. Operating Partners, L.P. v. Duenez, 

(Tex. 2007) (citing Baptist Mem. Hosp. Sys. v. Sampson, 

 (Tex.

1998)). “This liability is based on the principal’s control or right to control the agent’s

actions undertaken to further the principal’s objectives.” See 

 Appellants do not argue

that it was error for the trial court to find K&K vicariously liable for David’s acts, in fact it

appears that has been their theory of case in the trial court and on appeal. Furthermore,

appellants do not provide a clear and concise argument explaining how it was error for


                                               33
the trial court to hold K&K jointly and severally liable under the respondeat superior theory,

one that they argued to the trial court. See TEX. R. APP. P. 38.1(i). Instead, appellants

again complain that the evidence is insufficient to hold K&K forty percent liable. We have

already determined that appellants requested the question asking the jury to determine

K&K’s percentage of responsibility and that the evidence is sufficient to show that David

acted in part for his individual interest and on behalf of K&K’s interest when he built the

berm and dam. Additionally, appellants have waived an argument that the evidence is

insufficient to support that K&K is vicariously liable for David’s acts because that is what

they argued to the trial court. Accordingly, we overrule this issue.

       2.     Valerie

       Appellants argue that for Valerie to be held jointly and severally liable for the actual

damages suffered, appellees must have relied “on the jury’s finding that the nuisance was

intentionally created.” However, according to appellants, “to also recover punitive

damages from David and K&K, appellees are relying on inconsistent and mutually

exclusive torts” because to get punitive damages, appellees relied on David and K&K’s

gross negligence. Thus, appellants maintain that “[t]he trial court erred in not requiring

[appellees] to elect upon which theory of recovery they wish[ed] to rely.”

       We find no merit in this argument because the jury found that appellants were liable

for creating an intentional nuisance and that David and K&K caused harm to the appellees

by their gross negligence, which the trial court included in its judgment. The trial court

further stated that appellees elected to pursue remedies for nuisance. The trial court did

not state or indicate that appellees sought damages only for negligently causing a


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nuisance as appellants appear to argue. Therefore, we overrule appellants fifth issue.

C.     Punitive Damages

       By their sixth issue, appellants claim that the award of punitive damages exceeded

the statutory cap because the trial court improperly awarded loss of use damages. See

In re Columbia Med. Ctr. of Las Colinas, 

 (Tex. 2010) (“Punitive

damages awards that are statutorily capped are required to be recalculated when the

actual damages against which they are measured are reduced on appeal.”). Thus,

punitive damages must be recalculated based on the actual damages that should have

been awarded. Furthermore, appellants assert that the amounts awarded were erroneous

because David and K&K were each found to be forty percent liable to appellees, and the

trial court did not take that into consideration when assessing the cap. Appellees respond

that the statutory cap in this situation allows for the award of $350,000 for David’s liability

and K&K’s liability ($175,000 x 2), which is greater than the amount actually awarded of

$200,000 each.

       Thus, we must decide whether the damage cap applies to the appellees’ award or

appellants’ liability. See Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 

 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (addressing similar issue under

the previous punitive damages cap of four times the actual damages). In Seminole, the

court of appeals concluded that the prior statutory cap to punitive damages applied “on a

‘per defendant’ basis.” Id.; see also Horizon Health Corp. v. Acadia Healthcare Co., Inc.,

 (Tex. 2017) (pointing out that the Texas Supreme Court has

determined that “when considering the statutory cap on wrongful-death damages . . . the


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cap should be calculated on a per-defendant basis” and stating, “In short, our past

decisions make clear that damages caps should be calculated on a ‘per defendant’

basis.). The legislator who authored the prior statute said, “[A] claimant cannot recover

exemplary damages from any one defendant in excess of four times the amount of the

claimant’s actual damages, but can recover up to that amount from each defendant

against whom the trier of fact awards exemplary damages.” 

 (citing the house review

of the prior statute). The Seminole court set out an example as follows: The actual

damages are $100,000, Defendant A is thirty percent responsible, Defendant B is fifty

percent responsible, and the jury orders Defendant A to pay $250,000 and Defendant B

to pay $1,000,000 in punitive damages. The trial court must order Defendant A to pay

exactly what the jury determined that the punitive damages were ($250,000) and the trial

court must cap the award of punitive damages that Defendant B must pay to $400,000 (4

x $100,000), and it may not award the jury’s amount of $1,000,000. 

 at 751 n.21. The

prior statute interpreted by the Seminole court stated “that ‘exemplary damages awarded

against a defendant may not exceed four times the amount of actual damages.’” 

 The

court reasoned, “Like the civil liability cap found in the Medical Liability and Insurance

Improvement Act, ‘the damages cap amounts should be calculated on a ‘per defendant’

basis because the [the statute] clearly applies to the recovery against the individual

defendant, not the award to the individual plaintiff.’” 

 at 751–52. Therefore, the court in

Seminole did not determine that punitive damages were linked to the percentage of

responsibility as found by the jury. See 

       The current statute reads as follows: “Exemplary damages awarded against a


                                               36
defendant may not exceed an amount equal to the greater of . . . two times the amount

of economic damages . . . or $200,000. TEX. CIV. PRAC. & REM. CODE ANN. § 41.008.10 In

Centocor, Inc. v. Hamilton, we analyzed the current statute and applied the reasoning in

Seminole, and we likewise held that “[e]xemplary damages are calculated on a per

defendant basis.” 

 (Tex. App.—Corpus Christi—Edinburg 2010),

rev’d in part on other grounds, 

 (Tex. 2012). In Centocor, the appellant

“argue[d] that the trial court misapplied the punitive damages cap when calculating the

final damages.” Id. at 521. The appellant “complaine[d] that the trial court applied the cap

to the total damages awarded to the [plaintiffs] without taking into account that [the

appellant] was only found 85% liable for the damages.” Id. We stated that “[t]he current

version keeps the same language [as the previous one analyzed by the Seminole court]

except changes the amount of the cap.” Id. at 522 (citing TEX. CIV. PRAC. & REM. CODE

ANN. § 41.008). In Centocor, “[t]he economic damages were $65,908, which was doubled

to $131,816. Then the trial court added $750,000 [for noneconomic damages], for a total

award of $881,816.00 in punitive damages.” Id. at 521–22. We held that the trial court did

not miscalculate the cap even though the jury found that the appellant had only been

eighty-five percent liable, a fact that bore no influence on our analysis. Id.; see also

Wackenhut Corr. Corp. v. de la Rosa, 

 (Tex. App.—Corpus Christi–

Edinburg 2009, no pet.), abrogated on other grounds by Zorrilla v. Aypco Constr. II, LLC,

 (Tex. 2015) (disagreeing with Wackenhut that the statutory cap on


       10  The cap allows an additional $750,000 of noneconomic damages to be added to the actual
damages multiplied by two. TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b)(1)(B). However, the trial court
here did not award appellees any noneconomic damages.

                                                  37
exemplary damages is waived if not pleaded as an affirmative defense).

      Here, appellants argue that the trial court should have taken the proportionate

responsibility of each defendant into account when it calculated the amount of punitive

damages. However, we agree with and adopt the reasoning in Seminole and Centocor.

See Seminole, 

; see also Centocor, 

; Wackenhut

Corr. Corp., 

 (calculating that the statutory cap for the award of twelve

million in actual and noneconomic damages would be $751,103 “against each defendant”

by adding actual damages of $551.50 x 2 with $750,000 for noneconomic damages)

(emphasis added). Accordingly, we conclude that the trial court properly calculated the

amount of punitive damages on a per defendant basis, and the amount that each

appellant, David and K&K, must pay does not exceed twice the actual damages awarded

($175,000 x 2 = $350,000). See Seminole, 

; see also Centocor, 

. We overrule appellants’ fifth issue to the extent they make this argument.

See Seminole, 

 (disallowing and criticizing the cap formula as

interpreted as actual damages times four equals the total amount of punitive damages

that all defendants must divide and pay and determining that the proper formula is actual

damages times four for each defendant); Centocor, 

.

      Additionally, appellants claim that the trial court failed to properly apply the cap

because it ordered David and K&K to each pay $200,000 to Clay and Lacy for a total of

$800,000. Appellants state that Seminole “addressed how to apply the punitive damages

cap against multiple defendants, not in favor of multiple plaintiffs.” Appellants cite no

authority, and we find none, concluding that the cap prohibited the trial court from


                                           38
awarding both Clay and Lacy punitive damages. See TEX. R. APP. P. 38.1(i); see also

Seminole, 

 (approving the trial court’s award of punitive damages

limited to the cap to each plaintiff). We overrule appellants’ sixth issue.

               VI.    NO ALTERNATIVE BASIS FOR AFFIRMING THE JUDGMENT

       By their seventh issue, appellants contend that there is no alternative basis to

uphold the judgment. By this issue, it appears that appellants argue that because they

have prevailed on all of their issues, we must reverse the entire judgment. However, we

have not sustained all of their issues, and therefore, this issue is not dispositive. See TEX.

R. APP. P. 47.1.

                                    VII.    CONCLUSION

       We reverse the judgment in part as to its award of loss of use damages in the

amount of $250,000, and we render a judgment awarding appellees’ zero damages for

loss of use. We affirm the judgment in all other respects.


                                                                        JAIME TIJERINA
                                                                        Justice

Delivered and filed on the
28th day of December, 2023.




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