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Kozak v. Lefevre Development, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

May 23, 2019


          Submitted on March 26, 2019

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 18-09-11786-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.



         Appellants 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 appeal from a summary judgment in favor of LeFevre Development, Inc. and Phillip LeFevre, individually and d/b/a LeFevre Investments (collectively "the LeFevre defendants"). The appellants also appeal the trial court's order granting the LeFevre defendants' motion to sever. We affirm the trial court's summary judgment in favor of the LeFevre defendants and the trial court's severance order.


         In March 2018, the appellants filed suit against Steve Bowen ("Bowen"), Waterstone on Lake Conroe, Inc. ("WOLC"), My Green Homes, Inc., and Virgin Homes, Inc. (collectively the "Bowen defendants") and the LeFevre defendants, alleging causes of action for negligence, nuisance, trespass, and gross negligence against the LeFevre defendants. The appellants own property in WOLC, which is a community that was developed by Bowen, who owns and controls WOLC as well as other entities that participated in its development. According to the appellants' petition, WOLC was built on farmland, and Town Creek ran downstream through the farmland and fed into Lake Conroe. In their petition, the appellants state that the Bowen defendants developed WOLC into a residential and recreation area that included waterfront lots, and canals were dredged along the path of Town Creek to open boat access to Lake Conroe. The appellants stated that the Bowen defendants advertised WOLC as a waterfront community and included the price of constructing a boat slip and boathouse in the sales price of the canal lots.

         According to appellants, during Memorial Day Weekend of 2016, a heavy rain "resulted in a major compromise to the WOLC canals[, ]" resulting in dirt, silt, and debris washing down the canal from upstream where portions of the slopes of the canal had collapsed. 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. According to 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.

         Appellants maintained that during the summer of 2016, they tried unsuccessfully to get Bowen to repair the canals, but Bowen blamed the City of Montgomery, the upstream property owner, Phillip LeFevre, and workers whom Bowen had contracted to clear the canal. Appellants' petition states that it had been almost two years since the original rain event and that residents of WOLC were still unable to use waterfront navigable access to Lake Conroe.

         Concerning appellants' negligence causes of action, the petition alleged that the LeFevre defendants owed appellants a duty to develop the property upstream in the manner of a reasonable and prudent person, to not damage appellants' property or to impede appellants' ability to access the water in the canals, and to navigate to Lake Conroe. Appellants alleged that the LeFevre defendants had breached that duty by manipulating the grade or otherwise changing the slope and nature of upstream property, including property along the banks or within the channel of Town Creek or other waterways that flow into WOLC. Appellants also alleged that the LeFevre defendants had breached that duty by failing to adequately design changes to the LeFevre defendants' property, including the design of detention or retention features and the bridge over Town Creek, and that such inadequate design or construction resulted in the collapse of parts of the banks of Town Creek and substantial erosion upstream from appellants' properties. Appellants further alleged that the LeFevre defendants were grossly negligent because their actions involved an extreme degree of risk and that they had and continue to have actual, subjective awareness that their conduct created an extreme degree of risk of harm to appellants, and the LeFevre defendants were consciously indifferent to appellants' rights, safety, and welfare.

         Appellants further alleged that the LeFevre defendants' actions in developing and improving upstream property constituted a nuisance, because the actions were intentional or negligent conduct that resulted in abnormal erosion and the collapse of dirt into Town Creek and the waterways that flow into WOLC, which would not have resulted from natural rainfall or the natural flow of water.

         According to appellants, the LeFevre defendants' actions resulted in major siltation of the waterways within the WOLC community, depositing silt, dirt, and mud across appellants' property and rendering the canals unfit for navigation. Appellants alleged that the LeFevre defendants' actions resulted in substantial erosion, and that the flooding, excess water, and erosion have substantially interfered with appellants' use and enjoyment of their property. The petition also alleged that the LeFevre defendants' actions constitute a trespass.

         The LeFevre defendants filed a traditional motion for summary judgment, in which they asserted that 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, and because the statutory duty under section 11.086 of the Texas Water Code does not apply in this case. The LeFevre defendants maintained that LeFevre Development, Inc. ("LDI") had not made any improvements to its upstream property, and Phillip LeFevre and LeFevre Investments, which had been defunct since 2000, do not own any upstream property. Attached to the LeFevre defendants' motion for summary judgment is the affidavit of Phillip LeFevre, in which Phillip averred that neither he nor LDI were involved in the development of WOLC. The affidavit does aver that LDI paid for half of WOLC's costs in dredging the canals along the path of Town Creek.

         According to Phillip, three heavy rain events within a span of approximately sixteen months caused upstream dirt, silt, and debris to wash downstream and resulted in a major compromise to the WOLC canals and the surrounding land. Phillip asserted that these storms created floods that caused a dramatic change to Town Creek by collapsing its slope, washing away all the vegetation, and leaving only dirt on the banks. Phillip explained that because of the storms, Town Creek went from being roughly twenty feet wide to one hundred feet wide within a short span of time, and photographs of Town Creek were included as an exhibit. Phillip averred that in 2008, he and his wife conveyed upstream property to LDI, and that he has a security interest on the purchase note, but he does not currently own any upstream property. According to Phillip, LDI has not developed its upstream property, and he attached photographs of LDI's property and copies of three property deeds to show that the upstream property that LDI owns is unimproved. Phillip ...

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