BEAUMONT (SE Texas Record) – A state appeals court has upheld a Montgomery County lower court’s decision to award a summary judgment in a lawsuit over a “major compromise” of canals in a waterfront community near Lake Conroe nearly three years ago.
A three-judge panel on the Texas Ninth District Court of Appeals affirmed May 23 in a 25-page opinion the Montgomery County District Court’s summary judgment in favor of LeFevre Development Inc. and Phillip LeFevre, individually and doing business as LeFevre Investments.
The opinion, which also supported the trial court’s order to grant the LeFevre defendants’ motion to sever, delivered a defeat to the appeal made by Waterstone on Lake Conroe residents Thomas M. Kozak, Elizabeth Kozak, Benjamin Buchanan, Shana Buchanan, Kim Cunningham, Keith Dewberry, John T. Font, Amy R. Font, Terri B. Smalley and Eddie E. Rasco.
The appellants’ original March 2018 suit blamed the LeFevre respondents, Waterstone on Lake Conroe Inc., My Green Homes Inc. and Virgin Homes Inc. for the “dirt, silt, and debris washing down the canal from upstream where portions of the slopes of the canal had collapsed.”
“The appellants’ petition alleged that improvements to upstream property owned or controlled by WOLC and the LeFevre defendants were insufficiently engineered because the heavy rain event collapsed the upstream shoreline, sending additional silt, dirt, trees, bushes, branches and other debris downstream into the WOLC community,” said the procedural background portion of the opinion. “According to the appellants, the debris and erosion clogged boat docks, the shoreline and the canals, rendering the canals unusable and causing structural damage to boats and boathouses.”
The LeFevre defendants sought a summary for motion judgment on grounds “they are entitled to judgment as a matter of law because they owe appellants no common law duty relating to erosion control or to water in streams and canals.” The appellants, in turn, alleged “the motion was premature because they had not had an opportunity to conduct discovery, and the appellants maintained they needed to obtain responses from the outstanding requests for disclosure to respond to the motion for summary judgment.”
“Because appellants have cited no authority that imposes a duty on a nonadjoining, upstream landowner to prevent its land from eroding or silting into a canal, we conclude that the trial court did not err in granting summary judgment in the LeFevre defendants’ favor on appellants’ negligence and gross negligence claims,” wrote Chief Justice Steve McKeithen.
Justices Charles Kreger and Leanne Johnson concurred on the opinion.