HOUSTON – A homeowners association's lawsuit to recover the cost of flood damage to a reserve tract in a Harris County community is on its way back to a local district court after a Texas appeals court ruled, in part, that the lower court had been wrong to find for defendants in the case.
The appellate court found the Harris County 55th District Court erred when it concluded that a common-law liability of defendants sued by Lakes of Rosehill Homeowners Association did now survive application of state law.
"We do not address whether the association's alleged injuries are indeed indivisible such that responsibility for them cannot be apportioned among defendants with reasonable certainty, as that question is outside the scope of this interlocutory appeal," a 14th Court of Appeals three-judge panel said in its ruling issued June 12. "We reverse the portions of the trial court's orders granting summary judgment on the association's claims of common-law nuisance, negligence, and trespass and remand for further proceedings."
Texas Fourteenth Court of Appeals Justice Brett Busby
Justice Brett Busby wrote the 14-page opinion in which Justice Williams J. Boyce and Justice Ken Wise concurred.
The homeowners association in the Cypress neighborhood filed suit against defendants in the case over property damage allegedly caused by flooding. Defendants in the case are David Bruce Jones, Gregory Kaspar, Patricia Kaspar, Wendell Budisalovich, Alicia R. Vykoukal, David W. Vykoukal, Mark J. Wojcik, John Kelly Dickson, Cora Nadine Dickson, Ronnie J. Montgomery and Mary J. Montgomery.
The homeowners association's case stems from flood damage to a reserve tract within the subdivision, which contains a drainage channel to remove runoff from the Rosehill Subdivision and was damaged by flooding, according to the background portion of the opinion.
In March 2014, the homeowners association sued the defendants over allegations of common-law nuisance, negligence and trespass, in addition to Texas water code violations and statutory public nuisance under the state's health and safety code. The association asked for damages to past repair costs, an injunction to force defendants to maintain the tract and attorney's fees.
"The association alleges that defendants are jointly and severally liable for its injury because they failed to exercise ordinary care to maintain those portions of the West Ditch on their properties, which resulted in an indivisible injury because defendants' individual responsibility for the injury cannot be apportioned with reasonable certainty," the opinion said.
The homeowners association appealed the district court's earlier decision to grant partial summary judgment for the defendants on the homeowners association's common-law tort claims. The appeals court agreed to hear the homeowners association's appeal to address a controlling question of law identified that had been identified by the district court.
That question was "whether the rule of joint and several liability in tort among defendants whose individual share of responsibility for a plaintiff's injuries cannot be proven survives the state's adoption of proportionate responsibility" under state law, according to the opinion.
The court cited the 1952 case Landers v. East Texas Salt Water Disposal Co and concluded that defendants' liability in tort does survive state law about proportionate responsibility.
"Accordingly, we reverse the trial court's summary judgment orders in part and remand for further proceedings," the opinion said.