NUMBER 13-02-261-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LUCIA BALLEZA, ASENCIO SAENZ,
AND JOAQUIN BALLEZA, JR. Appellants,
v.
THE CITY OF MISSION, Appellee.
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Yañez
In this suit for nuisance, appellants, Lucia Balleza, Asencio Saenz, and Joaquin Balleza, Jr., sued appellee, the City of Mission (“the City”), for damages associated with several sewer overflows into their residence. A jury found in favor of the City. In two issues, appellants challenge: (1) the legal and factual sufficiency of the jury’s finding that the City’s acts did not constitute a public health nuisance; and (2) the factual sufficiency of the jury’s finding that the City’s acts did not constitute a nuisance that proximately caused damages to appellants. We affirm.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it.
I. Standard of Review
A party attacking the legal sufficiency of an adverse finding on which he had the burden of proof must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. "In reviewing a 'matter of law' challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary." "If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary position is established as a matter of law." The issue will be sustained "only if the contrary position is conclusively established."
When a party attacks the factual sufficiency of the evidence supporting an adverse finding on which he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. In reviewing such a challenge, a court of appeals "must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust."
II. Applicable Law
A municipality is liable for the creation or maintenance of a nuisance in the course of the non-negligent performance of a governmental function. “In this context, ‘non-negligence’ means beyond negligence, as in gross negligence or an intentional act. But if a nuisance is caused by the negligent performance of a governmental function, then the governmental entity is protected from liability because of governmental immunity.”
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. To maintain a cause of action for nuisance, a plaintiff must be able to show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from alleged improper or negligent use.
III. Analysis
Here, appellants challenge the sufficiency of the evidence supporting the jury’s answers to questions one and four. Question one asked, “Did the City of Mission’s acts constitute a nuisance that was a proximate cause of damages, if any, to the Plaintiffs?” Question four asked, “Did the City of Mission’s acts made the basis of this lawsuit constitute a public health nuisance?” The jury answered “no” to both questions.
A. Legal Sufficiency
Appellants had the burden of proving that the City performed an act which constituted a nuisance. The jury was instructed that it must find that the City’s acts were “beyond negligence, as in gross negligence or an intentional act.”
Emilio Garcia, Jr., the City’s supervisor of the wastewater plant, testified that a backup of the sewage collection system could not have occurred without a visible elevation of the water level at the wastewater plant, which would have been noted in the plant’s log; no such event was noted in the log. He also testified that the plant is equipped with an alarm, which the plant operator checks weekly to ensure it is working properly. The alarm would have sounded before the water reached a level high enough to cause a backflow. Garcia testified the alarm has never sounded because of an elevated water level. He also stated that if the sewage backup into appellants’ home was caused by a failure at the plant, there would have been overflows from manholes and a business located between appellants’ home and the plant. There were no reports of overflows or problems at the manholes or the business. Garcia testified that the backup into appellants’ house could have been caused by a blockage in their sewer line or by the construction of appellants’ lateral sewer line to the sewer main with an inadequate slope.
We conclude that appellants failed to establish that the City’s acts constituted a nuisance or a public health nuisance. We hold there is more than a scintilla of evidence to support the jury’s finding that the City’s acts did not constitute a nuisance or public health nuisance. Accordingly, we hold the evidence is legally sufficient to support the jury’s answer to question four.
B. Factual Sufficiency
Appellants also challenge the factual sufficiency of the jury’s answers to questions one and four. Appellants direct us to the deposition testimony of Carlos Flores, an employee of the City’s wastewater plant. Flores testified that on one of the occasions at issue, there was a “sewer stop;” he investigated and visited appellants’ residence, but was unable to identify anything appellants had done to cause the problem. Appellants also cite the testimony of Mario Monteforte, a police officer for the City, who was called to investigate one of the sewer overflow incidents. Monteforte testified that when he went to the wastewater plant, Flores told him the sewer backup at appellants’ residence was caused by a power failure at the plant.
Appellants note that Garcia testified that on the date of one of the incidents, the wastewater plant’s milltronics were out. He testified that the milltronics failure “might be the problem.” Appellants also cite the testimony of Francisco Flores, the City’s utilities director, in which he testified that he has no information that anything other than the milltronics caused the backup on appellants’ property. Appellants argue that although “there are disputes as to what was the exact cause [of the sewer backup], there was never any doubt that the City of Mission was the one doing something, or not doing something, that caused the sewer to backup.”
We conclude that the failure to definitively identify any problem on appellants’ property as the cause of the sewer backup does not constitute evidence that the City’s operation of the wastewater plant constituted a nuisance. Considering and weighing all the evidence, the jury’s findings are not so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. Accordingly, we hold the evidence is factually sufficient to support the jury’s answers to questions one and four.
We overrule appellants’ challenges to the sufficiency of the evidence supporting the jury’s answers and AFFIRM the trial court’s judgment.
LINDA REYNA YAÑEZ,
Justice
Memorandum Opinion delivered and
filed this the 16th day of December, 2004.