Waterstone on Lake Conroe, Inc. and Steve Bowen v. Keith Dewberry and John T. Font

                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             ________________

                             NO. 09-22-00020-CV
                             ________________

                WATERSTONE ON LAKE CONROE, INC.
                   AND STEVE BOWEN, Appellants

                                       V.

          KEITH DEWBERRY AND JOHN T. FONT, Appellees
________________________________________________________________________

                  On Appeal from the 457th District Court
                       Montgomery County, Texas
                     Trial Cause No. 18-03-03990-CV
________________________________________________________________________

                         MEMORANDUM OPINION

      The underlying litigation arises from a dispute over canals in the Waterstone

on Lake Conroe (“WOLC”) development, which had been marketed as a waterfront

community. WOLC property owners, Keith Dewberry and John T. Font

(collectively, “Appellees”), sued Steve Bowen and three entities he owned, WOLC,

Inc., My Green Homes, LLC, and Virgin Homes, Inc. (collectively, “Appellants”)




                                        1
for statutory and common law fraud. 1 Dewberry and Font alleged that when WOLC

canals providing access to Lake Conroe became silted in after rain events in 2016,

Appellants failed to maintain the canals and return them to a navigable state. A jury

returned a verdict for Dewberry and Font. In five issues, Appellants challenge the

trial court’s judgment for Dewberry and Font. For the reasons discussed below, we

affirm the trial court’s judgment.

                 BACKGROUND AND TRIAL EVIDENCE

The Canals

      The evidence at trial demonstrated that the WOLC development was marketed

as having six-foot center depth canal-front lots that provided boat access to Lake

Conroe. In 2008, WOLC was in “predevelopment,” and the digging of the canals

commenced, but the canals were not finished until 2010. Sometime around 2010, the

WOLC canals filled with water, but the lake level dropped up to nine feet during a

2011 drought, which impacted the canals. When the rains resumed, the canals



      1While other Plaintiffs sued, they are not parties to this appeal, as some

arbitrated their claims and others nonsuited their claims. The Plaintiffs also sued
unrelated Defendants, including Phillip LeFevre, LeFevre Development, Inc., and
LeFevre Investments, Inc. The trial court granted the LeFevre Defendants’ Motion
for Summary Judgment as to Dewberry’s and Font’s claims prior to trial, and they
are not parties to this appeal. See Kozak v. LeFevre Dev., Inc., No. 09-18-00369-CV,

, at *1 (Tex. App.—Beaumont May 23, 2019, no pet.) (mem. op.)
(explaining that trial court granted summary judgment for LeFevre Defendants and
severed those claims). The Final Judgment incorporated the arbitration award for the
other Plaintiffs.
                                         2
refilled. The evidence established that through 2015 (except for the 2011 drought),

the canals could be used by boats to access Lake Conroe, although the canals had

some shallow spots. Bowen testified there was a rain event in 2015 that required

work around the development’s peninsula, but the canals remained usable by boats.

       In 2016, there were two significant rain events in close temporal proximity to

each other, one on Tax Day and the other on Memorial Day. The evidence

established that after the Memorial Day flood, the WOLC canals became unusable

by boats and no longer provided access to Lake Conroe and remained so through

trial in February 2020. Video and photographic evidence admitted at trial showed

the canals full of silt.

Steve Bowen’s Testimony

       Bowen is the sole owner, president, and only officer of WOLC, Inc. Bowen

testified that he previously developed several other canal-front communities. Bowen

testified he told residents when they bought their properties that WOLC would

maintain the canals until a certain number of lots were sold, at which time the

maintenance of the canals would be turned over to the Property Owners’ Association

(“POA”) and that was always his intent. Bowen also represented to buyers that the

canals were supposed to be six feet deep in the center.

       Bowen testified, “We didn’t promise that we would maintain them forever.

We said we would maintain the canals. We would dig them. We would create water

                                          3
there. But the . . . events that happened is far beyond what we would normally do.”

According to Bowen, WOLC purchased a barge for $100,000 in 2014 to maintain

the canals. He bought the barge for general canal maintenance and cleanup, but it

was never intended to re-dredge or dig the canals. Bowen testified that he never had

a maintenance program for the canals, nor did he require anyone to regularly check

their condition or depth.

      Bowen offered multiple explanations for why he had not cleaned the canals

and restored their navigability. First, he said that until another developer cleaned up

upstream and the City of Montgomery (“the City”) repaired the Buffalo Springs

Bridge upstream, the silt would just wash back down into the canals. The other

developer, LeFevre, began cleaning in 2018, and the City did not complete the bridge

repairs until 2018. Bowen then testified the Plaintiffs interfered with cleanup by

filing complaints with the Army Corps of Engineers and the Texas Commission on

Environmental Quality. Bowen testified that when they complained, he ceased all

work out of respect for the agencies and because the agencies scared him. He also

testified the lawsuit impeded repairing the canals. Bowen would not provide

information about his plans to remediate the canals but testified the damage was

temporary. He claimed he does not intend to leave them in their current condition,

he wants to fix them, and the plan is to provide “navigable” access to Lake Conroe.

Bowen also testified that the Plaintiffs could fix the canals themselves, but he

                                          4
acknowledged it would be expensive and might cost as much as Dewberry’s and

Font’s properties. However, it should be noted that Bowen owned the canals, not the

adjacent property owners.

Jack Yates’s Testimony

      Jack Yates was the City Administrator for the City from 2014 until 2019,

which included the period after the Tax Day flood and the Memorial Day flood. He

testified that after the storms, Bowen tried to get the City to repair the WOLC canals.

When Bowen asked if the City had a position about repairing the WOLC canals,

Yates told Bowen that the city council had discussed it. Yates explained that Bowen

owned the canals, so the City’s position was that it was not responsible for repairing

them. Yates added that the City never told Bowen he must wait to remediate the

canals until it completed the repairs on Buffalo Springs Bridge. He also testified that

Bowen acknowledged he was responsible for the WOLC canals.

Keith Dewberry’s Testimony

      In July 2008, Dewberry bought a lot in WOLC during the “predevelopment”

phase for $123,900. When he purchased his lot, the canal was dug at the back of his

property but there was no water yet. Before purchasing it, Dewberry met with

Bowen, with whom he had a previous acquaintance, and asked about the canals.

Dewberry grew up with Bowen’s employee, Brock Jeffus, and Dewberry’s family

lived in another of Bowen’s developments.

                                          5
      During those pre-purchase discussions, Dewberry asked Bowen that since the

subdivision was marketed as a waterfront community, whether they would have lake

access, so he could get to his grandparents’ and parents’ home which were in a

different canal subdivision on Lake Conroe. Bowen confirmed that WOLC would

have Lake Conroe boat access and he told Dewberry that WOLC would maintain

the canals until enough lots were sold in the subdivision at which time the

maintenance of the canals would be turned over to the newly created WOLC POA.

The only time he spoke with Bowen was in 2008 before he bought the lot. At the

time of trial, Bowen had not sold enough lots in the subdivision to allow him to turn

over the maintenance responsibility of the canals to the WOLC POA.

John Font’s Testimony

      In 2014, John Font and his wife purchased their home in WOLC as a resale.

John testified that among other things, they wanted a waterfront house, so he would

have Lake Conroe access for his jet skis and boat and a place for his grandkids to

fish. He heard about the home from his friend and had seen advertisements for

WOLC. Font testified that before purchasing their home, he and his wife took their

jet skis up the canal from Lake Conroe. They were concerned that the canals were

shallow in spots with sandbars, and they had to “navigate through it.”

      Font testified prior to purchasing his home, he investigated the canals’

maintenance and navigability by going to WOLC and meeting with Sonya Renteria,

                                         6
who was Bowen’s employee and the sellers’ agent. Renteria then introduced Font to

Bowen. He expressed his concerns about the sandbars and low spots to Bowen.

Bowen told Font that he “purchased a dredger and that he was going to maintain and

dig it to where it would be approximately 6-foot deep in the center.” Font testified

that if the canals did not give him Lake Conroe access, then he did not need the house

and would not have purchased the property. Font described Bowen as “a very good

salesman” and said Bowen’s representations about maintaining the canals impacted

Font’s decision to buy the home. Font testified that Bowen “guaranteed me it would

be navigable to Lake Conroe.”

Sonya Renteria’s Testimony

      Sonya Renteria, a sales manager who worked for Bowen at WOLC and in his

prior developments, testified. She explained that Bowen learned in his earlier canal

development at Grand Harbor, that digging and maintaining the canals was “way

more expensive than I think he thought it might be.” Renteria was the sellers’ agent

for the home the Fonts purchased and worked through Bowen’s real estate brokerage

company, Lake Conroe Waterfront Realty. She testified she earned a commission

when she sold the home to the Fonts, and Bowen and his brokerage company

obtained a benefit.

      In terms of what they told prospective buyers about the depths of the canals,

Renteria explained that “we always told them whether it – when it filled up or not,

                                          7
it was 250 above the bulkhead, 2 feet out, 4 foot, 6 foot, and then 8 foot in the center.

That is how we always cut all of our canals.” Renteria came to believe she was being

asked to tell residents things that were untrue. She said, “We kept telling them that

we were going to take care of things, and we didn’t. Even when . . . we got it to

where it was going to be affordable for us to do so, it still didn’t happen.”

      Although she initially believed Bowen’s representations about the canals, she

later determined they were lying to the residents. Renteria said that sandbars in the

canals had grass growing on them, which made potential buyers question the depth.

Bowen instructed Renteria to tell customers who asked that “[w]e would take care

of any issues. We, meaning, Steve, me, the development.” She testified that Bowen

had workers go out in a canoe and remove visible grass. Renteria explained they did

so because, “People were questioning us about it. We’re telling them it’s navigable

all the way down.” Renteria eventually disbelieved that Bowen had ever intended to

fulfill his promises and learned he was trying to sell their three developments. She

also testified that Bowen purchased the dredger to sell back to the POA just for show.

Renteria agreed that Bowen told prospective purchasers whatever they needed to

hear to make the sale. At times, she heard Bowen try to say that other entities, like

the San Jacinto River Authority or the City owned the canals, but she learned that

was untrue.




                                           8
Matthew Reibenstein’s Testimony

      Matthew Reibenstein, another former WOLC employee who worked for

Bowen between 2010 and 2011, testified. He said they had problems with sandbars

or the canals being shallow, and the canals were not navigable to Lake Conroe.

Reibenstein overheard conversations between Bowen and Bill Martinez, a dirt

contractor. Reibenstein testified he heard Bowen tell Martinez to use his excavator

and long arm bucket to push dirt mounds that built up in WOLC’s canals under the

water level “so it couldn’t be seen[,]” and “it didn’t look like it was so shallow,”

during “a big sales weekend.” Reibenstein said that doing so did not improve the

canals but made the lots look more attractive to buyers.

      Reibenstein also discussed his purchase of WOLC lots from Bowen in 2009

with his friend, Brock Jeffus–another WOLC employee. He explained, “It was

presented to me as a waterfront community on Lake Conroe. And that at the time

that it was undeveloped or partially developed and he would finish bulkheads. That

I would have navigable waterway to Lake Conroe. And it was expressed the whole

time that that is what I was buying was waterfront lots.” Reibenstein testified that he

became dissatisfied with Bowen’s promises regarding the purchase of his two lots.

Reibenstein told Bowen that he felt Bowen’s promises about the canals were untrue.

He complained about the depth of the canals and that you could not get a boat

through. Bowen assured him the issues would be resolved, but they never were.

                                          9
Ultimately, the matter was resolved when Bowen refunded Reibenstein’s money for

the lots. Reibenstein testified that in his last conversation with Bowen about the lots,

Bowen told him he was going through a lot of financial things and that “I’m sorry I

screwed you.”

Brock Jeffus’s Testimony

      Brock Jeffus testified that in 2008, he began working for Bowen as a WOLC

salesperson. Jeffus explained that in 2008, some canals were dug, and that “[t]he

canal system was a part of a total of four neighborhoods including Waterstone. It

would be Grand Harbor, Harborside, Grand View and then Waterstone. Waterstone

was the last on that canal system.” Dewberry was Jeffus’s best friend, and in 2008,

Jeffus sold Dewberry his lot. The selling points of WOLC that Jeffus provided to

Dewberry were canals six to eight feet deep, City water and sewer, no aerobic septic

systems, and concrete streets. Jeffus testified that Bowen closed every sale and

disputed testimony to the contrary. Jeffus said he was present when Dewberry

questioned Bowen about the canals.

      He testified that when people went up the canals, they had questions about

getting to WOLC from Lake Conroe. Jeffus testified Bowen was responsible for

ensuring the canals remained navigable to Lake Conroe until he turned everything

over to the POA. Jeffus explained that prospective purchasers questioned Bowen

about whose responsibility it was to maintain navigability to Lake Conroe, and

                                          10
Bowen responded that “everything would be dug 6 to 8 feet deep.” Bowen also told

purchasers that once he turned the POA over, it would be the POA’s responsibility.

Jeffus testified that his documents said it would be turned over to the POA when all

the lots in the first section were sold or 2018, whichever came first, but he did not

know if the deed restrictions had ever been amended. Jeffus had a dispute with

Bowen over the canals, which they ultimately resolved in 2013, when Bowen

returned his money for the lots.

      Jeffus testified that he believed Bowen when he purchased his lots, but that

changed when Bowen’s “actions didn’t live up to the things that he said.” Jeffus

explained that Bowen’s broken promises involved the lack of water in the canals,

and he kept promising within sixty to ninety days he would have it bulkheaded and

dredged and they would have waterfront lots, but three years later, Jeffus realized it

was never going to happen.

Thomas Kozak’s Testimony

      Dr. Thomas Kozak, another WOLC resident who sued but arbitrated his

claims, also testified. The canals were navigable when they bought their property,

and they were told the canals were eight feet deep in the center. When asked about

maintenance concerns and canal navigability, Kozak responded, “We made the

assumption that lots would continue to be navigable like they were around the rest

of the lake. And we visited those properties, too. We saw later on that there was a

                                         11
dredger there that was purchased for this property, and we just assumed they would

be maintained as navigable.”

      The Kozaks purchased their lot before the Memorial Day flood but had not

yet built their house. Kozak testified that after the Memorial Day flood, their

neighbors’ canal was occluded, but their canal remained navigable “for a little

while.” Before spending $425,000 to build his house, Kozak wanted to know the

canals would remain navigable. After the Memorial Day flood, Kozak asked Bowen

several times about the canals, and Bowen always responded they would take care

of it in two weeks. Kozak testified they would not have built their house if Bowen

had not assured them of canal access. In the Spring of 2017, his canal became

unnavigable. Although Bowen purchased a dredger, it never seemed to work, and

Bowen never fixed it.

      Kozak testified that after Bowen represented to the owners that other entities

like FEMA, the Army Corps of Engineers, and the City would fix the canals, Bowen

finally agreed to fix them in the Spring of 2017. When Kozak asked these other

entities if they would fix the canals, they said they would not. Kozak testified they

are approaching five summers with the canal being occluded. Kozak testified he saw

work performed after the May 2016 storm but “nothing to remediate the problem”

and explained the work was only for property Bowen owned and not the residents.




                                         12
Additional Evidence

      Dewberry and Font also offered testimony regarding their damages, including

their opinions regarding the current market value of their properties. Daniel Lauw,

who rented Dewberry’s home between 2016 and 2018, also testified regarding the

condition of the canals and his reasons for not going through with a contract to

purchase the property. Real estate broker Melissa Seureau testified regarding

comparable properties in WOLC and her attempts to sell the Fonts’ vacant lot. We

detail this testimony in our discussion of damages below. Additional evidence

included, among other things: drone footage of the silted WOLC canals; photographs

of the WOLC canals before and after they became unnavigable; advertising

materials; Dewberry’s contract; documents showing rain events and disaster

declarations; a Lake Conroe Waterfront Realty printout showing Renteria’s earned

commissions including for the Fonts’ property; Font’s Facebook posting

complaining the WOLC property was not waterfront; 2015 invoices and payments

to contractor for dredging in an unspecified canal and bulkheading invoices and

payments; and amended WOLC plat.

Causes of Action, Defenses, and Remaining Parties

      Dewberry sued for common law and statutory fraud. The Fonts sued for

common law fraud. Appellees pleaded the discovery rule applied and that Appellants

fraudulently concealed their deceitful conduct. Appellants raised the affirmative

                                        13
defense of statute of limitations as to Dewberry’s claims. They also asserted the

affirmative defense of “act of God.” When the matter was given to the jury, only

Keith Dewberry’s and John Font’s claims against WOLC, Inc. and Bowen remained.

Appellants’ Motion for Directed Verdict

      Bowen and WOLC, Inc. moved for directed verdict on multiple grounds. The

trial court granted in part and denied in part the motions. The trial court granted the

directed verdict as to the claims against My Green Homes and Virgin Homes. The

trial court also granted Appellants’ Motion for Directed Verdict as to Amy Font’s

claims.

      The trial court denied all other motions for directed verdict, including but not

limited to the Defendants motion for directed verdict on Dewberry’s claims,

asserting that they were barred by the statute of limitations, the Defendants motion

for directed verdict arguing the injuries were temporary rather than permanent, and

no evidence supported the consideration of permanent injuries, and diminution in

market value was not the appropriate measure of damages.

Jury Charge

      During trial, both sides objected to the submission of jury questions on

whether Dewberry’s and Font’s injuries were temporary or permanent and asserted

it was a matter of law for the court to decide rather than a question for the jury. The

Defendants argued that the injury was temporary, whereas the Plaintiffs asserted the

                                          14
injury was permanent. The trial court overruled these objections to the charge and

submitted Questions 12 and 13, which read as follows:

      QUESTION 12

      Is the injury to Keith Dewberry’s property and John Font’s properties,
      if any, capable of being repaired, fixed, or restored?

      Answer “Yes” or “No.”

      Answer: NO

      If you answered the above question “Yes,” then answer the following
      question.
      Otherwise, do not answer the following question.

      QUESTION 13

      Is the injury to Keith Dewberry’s property and John Font’s properties-
      --
      1. of such a character as to recur repeatedly, continually, and regularly,
      such that future injury can be reasonably evaluated?

      or---

      2. of such a character that any anticipated recurrence would be only
      occasional, irregular, intermittent, and not reasonably predictable, such
      that future injury could not be estimated with reasonable certainty?

      Answer “1” or “2.”

      Answer: _____________

Appellants complained that given the temporary nature of the injury, the jury should

not be allowed to consider diminution in fair market value as damages. They

contended that the appropriate measure of damages was loss of use, and asserted the

                                         15
Appellees failed to present any evidence of those damages. The Appellants also

objected to questions that addressed Dewberry’s and Font’s damages and contended

no evidence supported any element of damages submitted, which the trial court

overruled. The questions in the court’s charge addressing the different elements of

damages for Dewberry and Font included loss of use and enjoyment, diminution in

market value, and out-of-pocket expenses.

Verdict

      The jury found that Bowen and WOLC, Inc. committed common law fraud as

to both Plaintiffs and statutory fraud as to Dewberry. The jury also found that

Dewberry should have discovered the fraud with the exercise of reasonable diligence

by November 7, 2016. Although the jury found both Defendants committed fraud,

the jury apportioned 100% of the responsibility to Bowen. The jury awarded

diminution of market value damages for Dewberry of $142,000 and $60,000 for

Font. The jury also awarded Font $30,000 for loss of use and enjoyment and $10,000

for out-of-pocket expenses Font incurred. The Final Judgment awarded damages for

diminution in market value but did not include damages for loss of use or out-of-

pocket expenses.

Post-Verdict

      Bowen and WOLC, Inc. did not complain that the jury’s verdict included

irreconcilable or fatal conflicts before the trial court released the jury. After the trial

                                            16
court discharged the jury, Bowen and WOLC filed a Motion for Judgment

Notwithstanding the Verdict and a Motion for New Trial complaining that the

evidence was legally and factually insufficient. In these post-verdict motions,

Appellants also argued that some of the questions submitted to the jury were

immaterial, and that there were irreconcilable conflicts in the jury’s verdict.

                                   ANALYSIS

                  Issues One and Two: Statute of Limitations

      In issue one, Appellants contend that the statute of limitations on Dewberry’s

claims expired in 2012 since he purchased his property in 2008. Thus, the trial court

erred by submitting jury question regarding whether Bowen and WOLC, Inc.

committed fraud. In support of this, Appellants argue the cause of action accrued

when Bowen made the misrepresentation—in 2008, when Dewberry purchased his

property. In issue two, Appellants argue the discovery rule does not apply to

Dewberry’s claims, since his lot did not have lake access between 2008 and 2010

and in 2011.

      When a cause of action accrues is normally a question of law. Provident Life

& Accident Ins. Co. v. Knott, 

 (Tex. 2003); see also Sw. Energy

Prod. Co. v. Berry-Helfand, 

 (Tex. 2016) (citations omitted)

(discussing accrual in the context of trade secret misappropriation); Exxon Corp. v.

Emerald Oil & Gas Co., 

 (Tex. 2011). Yet “reasonable

                                         17
diligence is an issue of fact.[]” Berry-Helfand, 699 S.W.3d at 722 (citing Est. of

Stonecipher v. Est. of Butts, 

 (Tex. 1979)). The statute of

limitations for common law and statutory fraud is four years. See 

(a)(4); Emerald Oil, 

. “Causes of action

accrue and statutes of limitations begin to run when facts come into existence that

authorize a claimant to seek a judicial remedy.” Emerald Oil, 

(citing Knott, 

) (other citations omitted). Said another way, “a

cause of action accrues when a wrongful act causes a legal injury, even if the fact of

injury is not discovered until later, and even if all resulting damages have not

occurred.” Berry-Helfand, 

 (citing Trinity River Auth. v. URS

Consultants, Inc., 

 (Tex. 1994)); see also Woods v. William M.

Mercer, Inc., 

 (Tex. 1988) (“In an action for fraud, limitations

begins to run when the fraud is perpetrated, or if the fraud is concealed, from the

time it is discovered or could have been discovered by the exercise of reasonable

diligence.”). The Texas Supreme Court has “long held that ‘fraud prevents the

running of the statute of limitations until it is discovered, or by the exercise of

reasonable diligence might have been discovered.’” Hooks v. Samson Lone Star, Ltd.

P’ship, 

 (Tex. 2015) (quoting Ruebeck v. Hunt, 

 (1943)). Causes of action generally accrue and statutes of limitation begin to run

when facts come into existence authorizing a claimant to seek a judicial remedy. 

                                         18
(quoting Emerald Oil, 

). However, one cannot be allowed to avoid

liability for his actions by deceitfully concealing wrongdoing until limitations has

run. 

 (quoting S.V. v. R.V., 

 (Tex.1996)).

      Dewberry pleaded that Bowen concealed his failure to maintain navigable

canals and for application of the discovery rule. On March 28, 2018, Dewberry filed

suit, and the jury found that he, with the exercise of reasonable diligence, should

have discovered the fraud in November 2016. Since limitations is an affirmative

defense, Bowen and WOLC can overcome the jury’s finding only with conclusive

evidence that Dewberry knew or, with reasonable diligence, could have discovered

the fraud before March 28, 2014. See Berry-Helfand, 

 (discussing

overcoming jury’s date of discovery finding pertaining to a statute of limitations

defense in context of misappropriation of trade secrets); see also Tex. R. Civ. P. 94;

Assoc. Indem. Corp. v. CAT Contracting, Inc., 

, 284 n.7 (Tex.

1998) (“To overcome the trial court’s adverse finding on a factual proposition for

which it bears the burden of proof, a party is required to establish on appeal that the

evidence conclusively establishes the proposition.”). In determining whether

conclusive evidence exists, we review all evidence supporting the jury’s verdict as

true and reject all contrary proof if a reasonable jury could. See Berry-Helfand, 

; City of Keller v. Wilson, 

 (Tex. 2005).




                                          19
      The record establishes that Dewberry purchased his lot in 2008 during the

predevelopment phase, and the canals were not filled with water yet. Before buying

the lot, Dewberry asked Bowen about the canals, whether they would have lake

access and whether WOLC would be a waterfront community, and whether he could

reach his parents’ and grandparents’ homes in a neighboring canal-front community.

Bowen represented that WOLC would maintain the canals until turned over to the

POA, at which point the POA would maintain them. At the time of trial, the canals

had not yet been turned over to the POA, which meant that Bowen and WOLC were

still responsible for canal maintenance.

      When Dewberry entered into the lease-purchase agreement with Lauw in

March 2016, the canals were navigable. When the Memorial Day 2016 flood

occurred, the evidence showed that the canal became silted in, was occluded, and

unnavigable. Before that, the evidence showed that the canals were navigable, and

Dewberry had no reason to believe that Bowen was failing to maintain the canals as

he promised. The City Administrator testified that in November 2016, the City sent

a letter advising that it was not responsible for cleaning the WOLC canals and that

Bowen had acknowledged his responsibility for the canals.

      We disagree with Appellants’ contention that the cause of action accrued in

2008 or 2011. A cause of action accrues when a wrongful act causes a legal injury.

See Berry-Helfand, 

. In 2008, WOLC was in predevelopment, and

                                        20
the canals were not finished until 2010, so Dewberry had no knowledge that Bowen

and WOLC would not maintain them. Regarding 2011, the record demonstrates

there was a severe drought, and Lake Conroe dropped significantly. In fact, during

the drought Lake Conroe dropped nine feet. The canals refilled once the rain

resumed, and their unnavigable state had nothing to do with Bowen or WOLC’s

failure to maintain them.

      Rather, it was Bowen’s and WOLC’s failure to maintain them in a navigable

state as promised that constituted the wrongful conduct. The evidence demonstrated

this became discoverable after the canals became occluded in the Memorial Day

2016 flood. The City Administrator’s testimony supports this timeframe. The

misrepresentation became evident when Bowen and WOLC refused to return them

to a navigable state, and he had taken steps prior to this to conceal his failure to

maintain them.

      On March 26, 2018, Plaintiffs filed suit. Dewberry’s awareness that Bowen’s

wrongful conduct caused a legal injury occurred after the Memorial Day flood.

Therefore, Appellants have failed to provide evidence conclusively establishing that

Dewberry could have discovered the fraud with reasonable diligence before March

28, 2014. See 

; see also Tex. R. Civ. P. 94; CAT Contracting, Inc., 

 n.7. Dewberry’s fraud claims are not barred because the evidence




                                        21
shows he filed them within four years of discovery. See 

(a)(4). We overrule issues one and two.

                 Issue Three: Temporary or Permanent Injury

      In their third issue, Appellants argue that whether an injury is temporary or

permanent is a question of law. Thus, they contend the trial court erred by submitting

Questions 12 and 13 in the charge, which they assert asked the jury to decide whether

the injury was temporary or permanent. The judgment awarded Dewberry damages

of $142,000 and Font damages of $60,000 for diminution in market value. The

judgment did not include the additional loss of use and out-of-pocket damages the

jury found for Font.

      “[W]hether an injury is temporary or permanent is a question of law for the

court to decide.” Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 

 (Tex. 2014). As the Supreme Court of Texas has explained,

      An injury to real property is considered permanent if (a) it cannot be
      repaired, fixed, or restored, or (b) even though the injury can be
      repaired, fixed, or restored, it is substantially certain that the injury will
      repeatedly, continually, and regularly recur, such that future injury can
      be reasonably evaluated. Conversely, an injury to real property is
      considered temporary if (a) it can be repaired, fixed, or restored, and (b)
      any anticipated recurrence would be only occasional, irregular,
      intermittent, and not reasonably predictable, such that future injury
      could not be estimated with reasonable certainty.

. A “consequence ‘need not be eternal’ or ‘perpetual’ to qualify as

permanent.” 

 (quoting Schneider Nat’l Carriers, Inc. v. Bates, 

,

                                           22
277 (Tex. 2004)). A consequence may be permanent “if it is ongoing, continually

happening, or occurring repeatedly and predictably.” 

 (citations omitted).

Temporary actions are those whose consequences “do not last for long periods of

time, are not ongoing, are not likely to occur again, occur only sporadically, or occur

unpredictably.” 

 (citations omitted). When the facts are disputed and must be

resolved to correctly evaluate the nature of the injury, upon proper request, the court

must present the issue to the jury relying on these definitions. Id. at 481.

      The parties disputed whether the canals were reparable. Bowen and WOLC,

Inc. argued that Dewberry and Font could repair the canals themselves “if they

wanted to.” Dewberry and Font contended that they did not own the canals, could

not repair them, and Bowen and WOLC, Inc., as owners, were the only ones who

could repair the canals. Bowen was the legal owner of the canals, and he had the

responsibility and duty to maintain the canals where they were navigable and

allowed boat access to Lake Conroe. However, since Dewberry and Font were not

the legal owners of the canals, they did not have the legal responsibility, duty, or

ability to maintain the canals where they were navigable and allowed boat access to

Lake Conroe. The evidence demonstrated that the canals had been occluded and

unnavigable for years following the Memorial Day 2016 flood, and Bowen testified

at trial “he didn’t have plans he wanted to share” to return them to their navigable

state. Contrary to Appellants’ argument, the trial court did not ask the jury whether

                                          23
the injury was temporary or permanent. Rather, the trial court submitted questions

to the jury to resolve the underlying disputed facts using the definitions provided in

Gilbert Wheeler, Inc. and asked whether the canals were “capable of being repaired,

fixed, or restored.” See id. at 480–81. This question substantially tracked the

language in the Texas Pattern Jury Charges for damage to property. See, e.g., State

Bar of Tex., Texas Pattern Jury Charges —General Negligence, Intentional Personal

Torts, & Workers’ Compensation PJC 11.5, 12.4 (2022). The jury resolved this

disputed fact issue by answering that the canals could not be repaired, fixed, or

restored, which was true as to Dewberry and Font. See Gilbert Wheeler, 449 S.W.3d

at 480–81.

      In support of this issue, Appellants also assert that temporary and permanent

injuries are “mutually exclusive,” and a party may not obtain damages for both in

the same action, which is generally true. See Hous. Unlimited, Inc. Metal Processing

v. Mel Acres Ranch, 

, 825–26 (Tex. 2014) (quoting Schneider Nat’l

Carriers, Inc., 

); Kraft v. Langford, 

 (Tex.

1978). Here, however, Appellants did not obtain damages for both. Although the

jury found that Font sustained out-of-pocket and loss of use and enjoyment damages,

the trial court did not include these damages in the Final Judgment. Consistent with

the jury’s factual finding that the injury was incapable of repair and the trial court’s




                                          24
conclusion that it was permanent, the Final Judgment only included Font’s

diminution in market value damages.

      The trial court did not submit a question to the jury asking if the injury was

temporary or permanent. Instead, it permissibly had the jury resolve the underlying

factual dispute over whether the canals could be repaired. See Gilbert Wheeler, 449

S.W.3d at 480–81. The trial court then determined, as a matter of law, the injury was

permanent as shown in the Final Judgment when it only awarded damages for

diminution in property value. We overrule issue three.

           Issue Four: Irreconcilable Conflicts in the Jury’s Verdict

      In their fourth issue, Appellants complain that irreconcilable conflicts exist in

the jury’s verdict. Specifically, Appellants contend that two fatal conflicts exist

because: (1) they jury awarded damages because the canals were unnavigable, yet

they determined the canals could not be repaired – in essence arguing the jury

punished Appellants for failing to repair the canals while determining the canals

were not capable of being repaired; and (2) the jury found both WOLC and Bowen

committed common law and statutory fraud but WOLC liable for 0% of the

damages, a requisite element of fraud.

      A fatal conflict in jury answers exists when one answer requires a judgment

in one party’s favor while another answer requires a judgment in the opposing

party’s favor. Los Compadres Pescadores, L.L.C. v. Valdez, 

, 787

                                         25
(Tex. 2021) (citation omitted). “[T]o preserve error based on fatally conflicting jury

answers, parties must raise that objection before the trial court discharges the jury.”

USAA Tex. Lloyds Co. v. Menchaca, 

 (Tex. 2018); see also

Valdez, 622 S.W.3d at 787; Gulf Coast Fiber Servs., LLC v. BMF Drilling, LLC, No.

09-20-00037-CV, 

, at *4 (Tex. App.—Beaumont July 28, 2022,

no pet.) (mem. op.) (noting same). When a jury’s answers to questions conflict, “the

court shall in writing instruct the jury in open court of the nature of the . . . conflict,

provide the jury such additional instructions as may be proper, and retire the jury for

further deliberations.” Tex. R. Civ. P. 295. Since Appellants did not object to the

allegedly conflicting answers before the trial court discharged the jury, they cannot

now complain the conflicting answers undermine the judgment based on the jury’s

verdict. See Valdez, 622 S.W.3d at 787–88; Menchaca, 

. We

overrule issue four.

                     Issue Five: Legal and Factual Sufficiency

       In their fifth issue, Appellants argue the evidence is legally and factually

insufficient to support the jury’s verdict. Specifically, they contend there was

insufficient evidence to support the elements of a common law fraud claim and

Dewberry’s claim for statutory fraud. They also assert the evidence is insufficient to

support the awarded damages.




                                            26
Standard of Review

      In a legal sufficiency review, we must consider all the evidence “‘in the light

most favorable to the party in whose favor the verdict has been rendered,’” and

“‘every reasonable inference deducible from the evidence is to be indulged in that

party’s favor[.]’” Bustamante v. Ponte, 

 (Tex. 2017) (quoting

Merrell Dow Pharms., Inc. v. Havner, 

 (Tex. 1997)). Evidence

is legally insufficient to support a jury finding when: (1) the record discloses a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law

or of 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 establishes the opposite of a vital fact. Crosstex N. Tex. Pipeline, L.P.

v. Gardiner, 

 (Tex. 2016) (citation omitted). As the sole judges

of the witnesses’ credibility and the weight to give their testimony, the jurors may

choose to believe one witness and disbelieve another. City of Keller, 

. We “credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” 

. “The final test for

legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” 

 “We will

uphold the jury’s finding if more than a scintilla of competent evidence supports it.”

Tanner v. Nationwide Mut. Fire Ins. Co., 

 (Tex. 2009); Herrera

                                          27
v. Wendell Legacy Homes, LLC, 

, 451 (Tex. App.—Beaumont 2021,

no pet.). We presume jurors made all inferences for the verdict, but only if reasonable

minds could do so. Serv. Corp. Int’l v. Guerra, 

 (Tex. 2011).

“Jurors may not simply speculate that a particular inference arises from the

evidence.” 

 (citing City of Keller, 

).

      When challenging the factual sufficiency of the evidence supporting an

adverse finding on which the appellant did not have the burden of proof at trial, the

appellant must demonstrate that there is insufficient evidence to support the adverse

finding. Croucher v. Croucher, 

 (Tex. 1983); Am. Interstate Ins.

Co. v. Hinson, 

 (Tex. App.—Beaumont 2005, pet. denied).

When reviewing a factual sufficiency challenge, we consider and weigh all the

evidence in support of and contrary to the jury’s finding. Mar. Overseas Corp. v.

Ellis, 

, 406–07 (Tex. 1998). We set aside a finding only if it “is so

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

unjust.” Dyson v. Olin Corp., 

 (Tex. 1985).

Common Law Fraud

      To prevail on a common law fraud claim, a plaintiff must prove that: (1) the

defendant made a material misrepresentation; (2) the defendant knew the

representation was false or made the representation recklessly without any

knowledge of its truth; (3) the defendant made the representation with the intent the

                                          28
other party would act on it or intended to induce the party’s reliance on the

representation; and (4) the plaintiff suffered an injury by actively and justifiably

relying on defendant’s representation. See Emerald Oil, 

.

Dewberry and Font alleged that Bowen and WOLC, Inc. committed fraud by

misrepresenting that WOLC was a waterfront community and that residents would

have boat access to Lake Conroe via a canal system, which he would maintain until

enough lots were sold to turn the canal maintenance over to the POA. They alleged

that they relied on the misrepresentations and were induced to buy properties in

WOLC. Further, with respect to Dewberry, he alleged that the misrepresentations

constituted fraud in a real estate transaction. Finally, they alleged that Bowen

individually or on behalf of WOLC continually promised and represented that the

canals would be desilted and restored to navigability so they could enjoy the

amenities promised when they purchased their properties, and the false promises

amount to a continuing fraud.

      Dewberry also alleged statutory fraud in a real estate transaction.

      The elements of statutory fraud in a real estate transaction are a: “(1)
      false representation of a past or existing material fact, when the false
      representation is (A) made to a person for the purpose of inducing that
      person to enter into a contract; and (B) relied on by that person in
      entering into that contract; or (2) false promise to do an act, when the
      false promise is (A) material; (B) made with the intention of not
      fulfilling it; (C) made to a person for the purpose of inducing that person
      to enter into a contract; and (D) relied on by that person in entering into
      that contract.”


                                          29
Grove v. Franke, No. 09-18-00119-CV, 

, at *3 (Tex. App.—

Beaumont Oct. 17, 2019, pet. denied) (mem. op.) (quoting Flynn v. Keller Williams

Inc., No. 04-12-00307-CV, 

, at *2 (Tex. App.—San Antonio Mar.

13, 2013, no pet.) (mem. op.)); see also 

(a). A

person who makes the false representation described by the statute commits fraud

and is liable to the person defrauded for actual damages. See 

(b).

      In Spoljaric v. Percival Tours, Inc., the Court explained:

      A promise to do an act in the future is actionable fraud when made with
      the intention, design and purpose of deceiving, and with no intention of
      performing the act. While a party’s intent is determined at the time the
      party made the representation, it may be inferred from the party’s
      subsequent acts after the representation is made. Intent is a fact question
      uniquely within the realm of the trier of fact because it so depends upon
      the credibility of the witnesses and the weight to be given to their
      testimony.

 (Tex.1986) (citations omitted). Failure to perform, standing

alone, is no evidence of the intent not to perform when the promise was made, as

that fact is a circumstance to be considered with other facts to establish intent. 

; Texienne Oncology Ctrs., PLLC v. Chon, No. 09-19-00356-CV, 

, at *5 (Tex. App.—Beaumont Oct. 28, 2021, pet. denied) (mem. op.);

Morgan Bldgs. & Spas, Inc. v. Humane Soc’y of Se. Tex., 

 (Tex.

App.—Beaumont 2008, no pet.). “‘Material means a reasonable person would attach

importance to and would be induced to act on the information in determining his
                                           30
choice of actions in the transaction in question.’” Italian Cowboy Partners, Ltd. v.

Prudential Ins. Co. of Am., 

 (Tex. 2011) (quoting Smith v. KNC

Optical, Inc., 

 (Tex. App.—Dallas 2009, no pet.)).

Sufficiency of Evidence as to Fraud

      Appellants contend the evidence is legally and factually insufficient to support

the jury’s findings that Bowen made a material misrepresentation, as a positive

assertion knowing it was false, and that he did so with the intent that Dewberry and

Font would act on it. The evidence established that WOLC was marketed as a

waterfront canal community and that having navigable canals allowed residents to

access Lake Conroe. Dewberry and Font asked about the canals and who would

maintain them before purchasing their property. Bowen represented that WOLC

would maintain the canals to a depth of six feet until enough lots sold that the POA

would take over and guaranteed access to Lake Conroe. Both Dewberry and Font

explained why they desired waterfront property and navigable canals: for Dewberry,

it was having lake access and reaching family members who had homes in

neighboring communities on the lake; for Font, it was accessing the lake to use their

boat and jet skis. Font testified that he would not need the house if he could not get

his boat through the canals with access to the lake. Font said Bowen’s statements

impacted his decision, he was a “very good salesman,” and Font bought the house.




                                         31
      The evidence at trial demonstrated that Bowen had a practice of telling people

what he needed to make a sale, knew how expensive maintaining the canals could

be, and had problems with the canals in at least one prior development. His

employees testified that he purchased a dredger for show, and he never had a

maintenance program or had anyone regularly checking depth of the WOLC canals.

Employees also testified that Bowen did things to make the canals look appealing to

buyers without improving their condition, like removing grass from sandbars and

knocking dirt under the water before a big sales weekend, so it was not visible. There

was evidence presented to the jury that Bowen had not returned the canals to a

navigable state in the years between the Memorial Day flood and trial, despite

acknowledging he was responsible for the canals. Following the flood, Bowen told

people contradictory things like he was responsible for the canals and would fix them

but told others he did not own the canals.

      The evidence of Bowen’s representations and promises made to Dewberry

and Font about the canals, as well as to other buyers, his failure to keep his promises,

including his failure to maintain the depth and condition of the canals after promising

he would do so, coupled with his other conduct to cover up the shallowness of the

canals as outlined above, provided evidence from which a reasonable jury could

conclude that he never intended to maintain the navigability of the canals when

Bowen made promises to induce Dewberry and Font to buy property within WOLC.

                                          32
See Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 

 (Tex. 1998) (“A promise of future performance constitutes an

actionable misrepresentation if the promise was made with no intention of

performing at the time it was made.”). “Proving that a party had no intention of

performing at the time a contract was made is not easy, as intent to defraud is not

usually susceptible to direct proof.” Tony Gullo Motors I, L.P. v. Chapa, 

 (Tex. 2006) (citation omitted); see also Aquaplex, Inc. v. Rancho La

Valencia, Inc., 

, 774–75 (Tex. 2009) (citations omitted). While

breach alone is not evidence of intent, “breach combined with ‘slight circumstantial

evidence’ of fraud” is enough evidence of fraudulent intent to support a

verdict. Aquaplex, 

 (quoting Chapa, 

). Such

circumstantial evidence includes the parties’ conduct after the representation is made

and is present in this record. See 

 (citation omitted).

      Viewing the evidence in the light most favorable to the jury’s findings, we

conclude there is more than a scintilla of evidence to support the jury’s finding that

Bowen made a material misrepresentation, that he knew was false, and he did so

with the intent that Dewberry and Font act on it by purchasing property in WOLC.

See Emerald Oil, 

 (setting forth elements of fraud); Grove, 

, at *3 (outlining elements of statutory fraud in a real estate transaction);

see also Bustamante, 

 (discussing standard of review); Tanner,

                                          33


 (directing courts to uphold a jury’s finding if supported by more

than a scintilla of evidence). Thus, the evidence was legally sufficient to support the

jury’s findings on the first three elements of fraud and statutory fraud. See Emerald

Oil, 

; Grove, 

, at *3; see also Bustamante, 

; Tanner, 

.

      As to factual sufficiency and contradictory evidence, Bowen testified that he

intended to maintain the canals and purchased the barge to do so. He testified that

he could not have foreseen the storms. He also testified the canals were navigable

for a time after Dewberry and Font purchased their properties. Bowen also testified

the lawsuit interfered with his ability to fix the canals, and he was waiting on the

City to repair the bridge and another developer to clean his property upstream. He

explained that he still owned about ninety lots in WOLC, and he would benefit if the

canals were restored so he could sell the lots as waterfront. Bowen proffered

evidence showing that he paid a contractor hundreds of thousands of dollars for work

on the canals. Bowen’s intentions and whether he genuinely attempted to make

repairs to the canals was a disputed fact issue. The jury was free to weigh all the

evidence and could have believed some, all, or none of Bowen’s testimony. See City

of Keller, 

. In considering all the evidence in support of and

contrary to the jury’s fraud findings, we cannot conclude they are “so contrary to the




                                          34
overwhelming weight of the evidence as to be clearly wrong and unjust.” See Ellis,

971 S.W.2d at 406–07; Dyson, 

.

Evidentiary Sufficiency to Support Damages

      We next turn to the last element for fraud claims, which is harm caused by the

misrepresentation. See Emerald Oil, 

; Grove, 

,

at *3. Appellants assert the evidence is insufficient to support that Dewberry and

Font were harmed and to support the damages awarded and specifically, that “[t]here

was no evidence of any damages caused by Appellants’ purported fraud.”

      Appellants acknowledge that consequential damages are recoverable in

certain fraud cases, but argue they are not recoverable here because the harm “caused

as a result of the storms” was unforeseeable and not directly traceable to Appellants.

“When properly pleaded and proved, consequential damages that are foreseeable and

directly traceable to the fraud and result from it might be recoverable.” Formosa

Plastics, 

 n.1. The evidence showed that it was not damages caused

by the storms that Dewberry and Font claimed, rather it was Bowen and WOLC’s

failure to maintain the canals in a navigable state and give them access to Lake

Conroe, which included returning them to that condition after the storm. The

evidence showed that the lots they purchased were no longer characterized as

“waterfront” by the Montgomery Central Appraisal District (MCAD) due to the




                                         35
canals’ condition. Unnavigable canals and the resulting damage to property values

if proven, would be directly traceable and foreseeable to the fraud. See 

      Appellants next complain of the jury’s award of out-of-pocket and loss of use

damages, but we address only diminution in market value as that is the only measure

of damages the trial court’s judgment included. In support of this argument,

Appellants argue that Appellees failed to properly disclose their opinions under the

Property Owner Rule. Appellants also argue Appellees’ damages testimony was

conclusory and speculative.

      “The Property Owner Rule falls under Texas Rule of Evidence 701, which

allows a lay witness to provide opinion testimony if it is (a) rationally based on the

witness’s perception and (b) helpful to a clear understanding of the witness’s

testimony or the determination of a fact in issue.” Nat. Gas Pipeline Co. of Am. v.

Justiss, 

 (Tex. 2012) (citing Tex. R. Evid. 701; Reid Rd. Mun.

Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 

 (Tex. 2011)).

The Property Owner Rule presumes an owner is familiar with his property and its

value and is an exception to the requirement that a witness must otherwise establish

his qualifications to express an opinion on land values. 

 Being subject to Rule

701, a property owner need not be disclosed or designated as an expert to testify

about the value of his property. See 

 (noting Property Owner Rule falls under Rule

of Evidence 701, governing lay testimony); Teal Trading & Dev., LP v. Champee

                                         36
Springs Ranches Prop. Owners Ass’n, 

 (Tex. App.—San

Antonio 2017) (agreeing that a property owner “need not necessarily be designated

or disclosed as an expert in order to testify about the value of his property”), aff’d,

 (Tex. 2020).

      Bowen and WOLC’s argument that they failed to properly designate

Dewberry and Font as experts lacks merit. The record reflects that in August 2019,

about six months before trial, the Plaintiffs filed their Supplemental Responses to

Requests for Disclosure. The Supplemental Responses listed both Plaintiffs as

persons with knowledge of relevant facts and claimed diminution in property values

as a measure of damages. See Tex. R. Evid. 701; see also Justiss, 

;

Teal Trading, 

.

      We now turn to Appellants’ contention that Appellees’ testimony was too

conclusory and speculative, thus insufficient to support the damages awarded.

Testimony provided under the Property Owner Rule serves the functional equivalent

of expert testimony and must be judged by the same standards. Justiss, 

. An owner’s property valuations may not be based solely on their ipse

dixit. See 

 An owner must provide the factual basis for his opinion and not simply

use the phrase “market value” with a number to substantiate a diminished value

claim. See id.; Royce Homes, L.P. v. Humphrey, 

, 579–80 (Tex.

App.—Beaumont 2008, pet. denied) (concluding that property owner’s testimony he

                                          37
arrived at post-flood value of his home by “pulling [it] out of the air[,]” was too

speculative to support estimated damages). Considering the resources available

today, “[t]his burden is not onerous.” Justiss, 

. “Evidence of price

paid, nearby sales, tax valuations, appraisals, online resources, and any other

relevant factors may be offered to support the claim.” 

      The jury determined that the diminution in market value of Dewberry’s

property was $142,000. Dewberry testified that he purchased his lot in 2008 for

$123,900 and later spent $390,000 to build the home. He also paid $40,000 for an

outdoor patio and $7,000 for a wrought iron fence.

      Dewberry and Daniel Lauw both testified that in March 2016, shortly before

the flood, Dewberry entered into a lease purchase agreement with Lauw, who agreed

to pay $430,000 for the home, and he paid a lump sum of $30,000 to rent the home

for a year before buying it. At that time, the canals were navigable to Lake Conroe.

The evidence showed that Lauw had a boat and was interested in access to Lake

Conroe, and he testified that navigability of the canals was “[e]xtremely” important

to him. Dewberry also testified that after the canals silted in, Lauw backed out of the

purchase but leased the home for another year at a reduced price. After the canals

were silted, Lauw renewed the lease and “tried to wait it out” with the intention that

if the property was “fixed,” he would buy it. Lauw testified that he ultimately

decided not to purchase Dewberry’s home since the issue with the canals was

                                          38
unresolved, and it was not worth what it was before. In 2013 when the canals were

navigable, Dewberry listed the home for $479,000, but he testified that the price

reflected his need to sell due to his divorce, and he did not receive any offers at that

time, so he removed it from the market.

      Dewberry testified that since the canals occluded, MCAD reduced the value

of his property to $300,000. Dewberry also explained that he consulted a realtor on

comparable sales in WOLC and was advised that after the flood, homes were being

sold for $106 per square foot, and his home was 3,000 square feet, which is how he

arrived at $318,000. Dewberry considered the devaluation of unimproved lots in

WOLC after the flood, which have been reduced from the mid $130,000’s to

$69,000. Dewberry ultimately opined that the current market value of his home was

$318,000. In arriving at that value, he explained that he considered the MCAD

valuation of $300,000, the realtor’s input that comparable homes were selling for

$106 per square foot, the fact that Lauw backed out of a contract to buy the home

for $430,000 before the canals became unnavigable, and the fact that WOLC lot

values have been cut in half. To support his damages, Dewberry testified about what

he paid, sales in WOLC, a realtor’s information, MCAD valuations, and the fact that

a prospective buyer backed out of a contract due in part to unnavigable canals. See

Justiss, 

 (discussing types of evidence that may support a property

owner’s valuation).

                                          39
      The jury awarded Font $60,000 for diminution in market value. Font testified

that as the property owner, he is familiar with the value. He testified that if he sold

his lot currently, the fair market value would be below $65,000, but if the canals

were in working order, it would probably be $130,000. Font described the

information he used to arrive at that opinion, including a comparable analysis on

surrounding lots that real estate broker Melissa Seureau performed. Font testified

that information included two lots in the neighborhood listed for $139,000 but were

on the market for $75,000 but still had not sold. Additionally, Font testified that the

tax appraisal value for his lot had been reduced from $130,000 to $75,000.

      Font testified that the fair market value of his house was probably $315,000,

but he invested $560,000 in the house with the outdoor kitchen and upgrades to the

boat lifts. He said that houses in the neighborhood the same size as his with

swimming pools are listed currently with the unnavigable canals at $330,000 and

$360,000. He explained that the information he used to arrive at his opinion included

data Seureau provided “on the comps and I compared them,” and he considered the

current MCAD value of $300,000. Font said that the comparable properties had

swimming pools and were on the same canal as his, and one was 3,500 square feet

and the other was 3,600 square feet; his home is 3,475 square feet. The information

Seureau provided in June 2019 indicated the homes in WOLC were not selling but

listed at $116 per square foot. He also testified his home “was worth 512,000 when

                                          40
I purchased it.” Font testified that Dewberry lives next door to him, and his lot is

similar in size and dimensions. Likewise, Font’s evidence to support his opinions of

market value included tax values, comparable sales listings, a real estate broker’s

analysis, and the amount he paid for his property and upgrades. See 

      Real estate broker Seureau also testified about her analysis of Font’s

properties. When Seureau showed the Fonts the house in WOLC, there was “lots of

water in the canal,” but since the canals silted up, the MLS listings for homes in

WOLC had the “waterfront portion” removed. Seureau testified that she would not

be comfortable currently listing the Fonts’ home as waterfront, because it would

“create a liability” for her “because there is no waterfront.” Seureau said the Fonts

paid $512,000 for their home plus upgrades.

      Seureau also listed the vacant lot the Fonts’ owned next to their home, but it

never sold. She described her efforts to market the lot, which included removing the

waterfront information in the MLS. She thought the Fonts listed the lot in 2015 and

removed it in 2016, after the canals silted up. Seureau testified that nobody paid her

for her testimony, and she is not currently listing anything for the Fonts.

      We conclude the testimony as outlined above provided a factual basis to

support Appellees’ diminution of fair market value opinions. See 

 Having

presented more than a scintilla of evidence to support their damages, we conclude

the jury’s findings on diminution in value as to both Font and Dewberry were

                                         41
supported by legally sufficient evidence. See Tanner, 

; Herrera,

631 S.W.3d at 451; see also Gicor, Inc. v. Brewer, No. 09-21-00222-CV, 

, at *14 (Tex. App.—Beaumont July 27, 2023, no pet.) (mem. op.)

(discussing expert testimony in property valuation case and concluding testimony

constituted “more than a scintilla of evidence to support the damages”).

Additionally, after considering all the evidence supporting and contradicting the

jury’s damages findings, we cannot conclude they are “so contrary to the

overwhelming weight of the evidence that the verdict is clearly wrong and unjust.”

See Ellis, 971 S.W.2d at 406–07; Dyson, 

. Therefore, the evidence

as to damages is factually sufficient.

      We overrule Appellants’ fifth issue.

                                CONCLUSION

      Having overruled each of Appellants’ issues, we affirm the trial court’s

judgment.

      AFFIRMED.

                                                  W. SCOTT GOLEMON
                                                       Chief Justice

Submitted on October 26, 2023
Opinion Delivered December 14, 2023

Before Golemon, C.J., Johnson and Wright, JJ.



                                         42