Robert Goad, Shirley Goad, and Ashley Goad v. KHBM Partners III, Ltd., KHBM Partners II, Ltd., and Kendall Home Builders, Inc.
09-20-00020-CV
| Tex. App. | Oct 7, 2021Background
- Robert and Shirley Goad own a three‑acre lot; daughter Ashley lives in a second residence on the property. They allege homes built on adjacent Caddo Village lots were graded/elevated and diverted storm runoff onto the Goads’ land, causing erosion, flooding, property damage, and lost market value.
- Goads filed suit in Feb 2017 against KHBM Partners III and the homeowners association asserting negligence, public/private nuisance, and Tex. Water Code § 11.086 claims for diversion of surface water (damages beginning ~Apr–May 2015).
- Discovery later disclosed additional related entities; Plaintiffs amended pleadings in Nov 2019 to add KHBM II and Kendell Home Builders (KHB).
- KHBM III moved for traditional and no‑evidence summary judgment, arguing it did not design, grade, or build the contested homes and thus owed no duty and could not be liable; KHBM II/KHB moved asserting a two‑year statute of limitations bar.
- Trial court granted KHBM III’s no‑evidence summary judgment (no proof of involvement/duty or statutory diversion of "surface water") and granted KHBM II/KHB summary judgment on limitations (claims accrued by May 2015; discovery rule not pleaded).
- The court of appeals affirmed the summary judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether KHBM III has evidence that it owed a duty/caused harm (negligence) | Goads: ownership records and affidavits raise fact issue that KHBM III owned the lots and may have been involved in grading/ construction | KHBM III: no evidence it designed, graded, elevated, or built the homes; therefore no duty, breach, or causation | Affirmed: no more than scintilla; plaintiffs failed to raise evidence KHBM III engaged in alleged wrongful acts, so no‑evidence SJ proper |
| Whether KHBM III can be liable for public/private nuisance | Goads: development created ongoing flooding nuisance interfering with use/enjoyment | KHBM III: no evidence it engaged in conduct creating nuisance or that plaintiffs suffered special injury vs. public | Affirmed: no evidence KHBM III engaged in alleged wrongful conduct; nuisance claims fail |
| Whether KHBM III violated Tex. Water Code § 11.086 (diversion of surface water) | Goads: runoff from the homes is diffused surface water diverted onto their property | KHBM III: plaintiffs produce no evidence of diversion/impoundment of diffused surface water; water may be channel/flood water | Affirmed: plaintiffs produced no evidence KHBM III diverted/impounded "surface water" as defined by statute |
| Whether KHBM II and KHB are barred by limitations and whether the discovery rule saves claims | Goads: discovery rule delays accrual because they did not know responsible entities (KHBM II/KHB) until 2019 disclosures | KHBM II/KHB: causes accrued by May 2015; plaintiffs filed against these entities in Nov 2019 (beyond two years); discovery rule not pleaded so inapplicable | Affirmed: defendants conclusively established accrual and limitations; discovery rule unavailable because it was not pled, so claims barred |
Key Cases Cited
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (de novo review of summary judgment)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (standard for no‑evidence summary judgment; view evidence favorably to nonmovant)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (no‑evidence motion standards and directed‑verdict equivalence)
- Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983) ("scintilla" legal sufficiency standard)
- Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (elements of negligence; duty threshold inquiry)
- Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016) (nuisance liability principles; negligence‑based nuisance requires duty, breach, proximate cause)
- KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (burden on movant to conclusively establish limitations in summary judgment)
- Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) (discovery rule must be pleaded to apply)
- HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (discovery rule postpones accrual until plaintiff knows or should know of injury)