Affirmed and Memorandum Opinion filed August 31 , 2023

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00013

- CV

TENARIS BAY CITY INC. , Appellant

V.
RICKY ELLISOR ; JOS E L. AV ILA ; WILLIAM JOHNSON ; ELIZABETH JOHNSON ; MATTIE HALBISON, INDIVIDUALLY AND AS RE PRESENTATIVE OF THE ESTATE OF JAMES HALBISON ; DORENE TABARES , INDIVIDUALLY AND AS HEIR AT LAW TO ARMANDO TABARES ; ARMANDO GARCI A, FOR THE ESTATE OF MARIA GARCIA ; RAQUEL SOLIS ; SAMUEL TREVINO ; GLORIA TREVINO ; DONNIE WEST ; GLORIA WEST ; ELLA ALLINIECE ; JOSE PH HUERTA ; RICHARD ALVARADO ; CAROLYN ALVARADO ; SANDRA JOYNER ; CLAYTON JOYNER ; WILLIA M JAHNSEN ; SUE JAHNSEN ; HELEN PADILLA ; RUDY P ADILLA ; GUY SNYDER ; DAVID STORY ; DEBORAH STORY ; S AMUEL FRANKSON ; SUSAN FRANKSON ; JAMES FRANKSON ; LARRY FORD ; AND KIMBERLY DAVI S , Appellee s

On Appeal from the 295th District Court

Harris County , Te xas Trial Court Cause No. 2018

- 719702 MEMORANDUM OPINION Appellant Tenaris Bay City Inc. challenges the jury verdict in favor of appellees

— a group of 30 property owners

— on their neglige n c e claims relating to the flooding of their homes during Hurrican e Harvey

. 1 In five i ssues on appeal, Tenaris argues : (1) there is legally

- and factually

- ins ufficient evidence to support the jury ’s finding on causation ; (2) the trial court erred by allo wi ng a ppellees ’ expert to tes tify r e garding causation; ( 3) there is lega ll y
- and factually

- insufficient evidence to support the jury ’s finding that the water at iss ue was “ surface water , ” as opposed to “flood water ”; (4) the trial court erred by re fusing t o inc lude Tenaris ’s requested proxim a te

- cause and floo d

- water i nstruction s ; and (5) the trial court erred by striking Tenaris ’ s designation of a res ponsible third party. We affirm.

I. B ACKGRO UN D In August 2017, Hurricane Harvey hit Texas and caused significan t da m a ge and flooding to areas all o v er the state , including

— as is releva nt to this appeal

— Matagorda County

. In October 2018 , appellees filed suit against appellant Tenaris , Fluor Enterprises Inc. , and Jones & Carter Inc. , alleging that the drainage system d esi g n ed for and constructed by Tenaris was r esponsible for the flooding damage
to their homes

. Tenaris was the owner and operator of a seamless

- pipe manufacturing

1 Appellees consist of the following individuals: Ricky Ellisor ; Jos e L. Av ila ; William Johnson ; Elizabeth Johnson ; Mattie Halbison, individually and as representative of the estate of James Halbison ; Dorene Tabares , ind ividually and as heir at law to Armand o Tabares ; Armando Garci a, for the estate of Maria Garcia ; Raquel Solis ; Samuel Trevino ; Gloria Trevino ; Donnie West ; Gloria West ; Ella Alliniece ; Jose ph Huerta ; Richard Alvarado ; Carolyn Alvarado ; Sandra Joyner ; Clayt on Joyner ; Willia m Jahnsen ; Sue Jahnse n ; Helen P adilla ; Rudy P adilla ; Guy Snyder ; David Story ; Deborah Story ; S amuel Frankson ; Susan Frankson ; James Frankson ; Larry Ford ; and Kimberly D avi s

.3

facility , which t he ap pelle es allege caused the flooding of their ho me s

. The facility had p re vio usly been a s od farm , but before building its facility on the property , Tenaris h ired Fluor, an international engineering firm, to design the site’s dr ainage plan in accordance with the applicable laws and regulatio ns necessary for the effective displ ac eme nt of water a s runof f to the surrounding homes . Jones & Carter was hired by the Matagorda County D rainage District to detail any concerns of the drainage plan befor e issuing a permit. A gainst Fluor, appe llees brought claims for negligence and gross ne gl i ge nce, in addition to a claim for negligence per se for violations of the Water Code; against Tenaris, appellees brought claims for negligenc e, gr oss negligence, negligence per se, and negligent nuisance. 2 Tenaris designated Mil berger as a responsibl e t hi rd party. 3 Appellees filed a motion to strike the designation, arguing there was no evidence of any n egligence attributable to Mi lberger. The trial court gra nted the motion to strike. The case proceeded t o trial with the remaining partie s . The first p ha s e was to address liability in which the parties agreed to divide the properties at issue into three geographic zones: Zon e A, Zone B, and Zone C. The trial court granted a directed verdict in favor of Tenaris and Fluor on the appellees’ cl aims of gross

ne g li gen ce as to all zones. T he jury , however, returned a verdict in favor of appellees , finding Tenaris liable for negligen ce, negligent nuisance, and negligence per se violations of the Water Code for all three zones; the jury also fo und Fluor liab le for ne gl ige n ce for Zone C

. Fluor settled with appellees on th e Zone

- C claim.

2 Against Jones & Carter, appellees brought claims for negligence and gross negl igence , but they settle d with pla intiffs before trial began

.

3 Milberger refers collectively to Milberger Turfgrass, LLC ; Bryan M. Milberger Trust 2

- 1

- 1994 ; Fr anci s Wayne Milberger Trust 2

- 1

- 1994 ; and Arthur J . Milberger Trust 2

- 1

- 19 94. Art hur testified at trial that before the Tenari s f acility was built , the land was a “ turf farm ” owned by Milberger. The record reflects some individuals still referred to the area in whic h Tenaris was located as the “ Milberger Farm. ”4

Tenaris and appellees entered into a stipulated agree ment that the dam ages for all three zones was $2,800,000 , removing the need for a trial on damages

. Tenaris filed a motion for ju dg men t n otwithstanding the verdict to disregard the jury’s findings and req u e sted a new trial on the basis that the evidence was i ns ufficient to support the jury ’ s findings

. Tenaris argued that the p laintiffs did not establish sufficie nt evidence to prove the s u bs tantial

- factor elem ent for proximate causation

. In a related argument , Tenaris asserted that the tr ial court erred in permitting appellees ’ expert to testify regarding Zone C when t he expert was previously on record admitting that he h ad not done the pr ope r an al ysis to form opin i ons regarding that geographic zone. Further, Tenaris argu ed that it owed no duty to appellees beca use the water outflowing from Tenaris’ s property was “flood
water , ” as opposed to “surface water,” and onl y the State of Texas has a duty to control flood water. Alternatively , Tenaris argued that if the re was sufficient evidence to h old Tenari s liable, then there must have been sufficient evi dence to support a finding of liability ag ainst Milbe rger , as we ll. Accordin gly, T enaris argu e d that the trial court erred by strik ing t heir desi gnation of a respons ible third party. However, b ecause the trial court never ruled on Tenaris ’ s motion for judgment notwithstanding the verdict , it was d enied a s an operation of law. See T ex . R. C iv . P. 3 29b(c).

II. A N ALYSIS
A. Legal and factual sufficien cy of proximate cau sation

In its firs t issue , Tenaris argues that the evidence was legally and factually insuf ficient to support the j ury ’s p roximate

- caus e finding.
1

. S tandard of r eview and a p plicable l aw5

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilso n , 168 S.W.3d 802, 82 1

– 22, 827 (Tex. 2005); see also Graham Cent. Station, Inc. v. Peña , 4 42 S.W.3d 261, 2 63 (Tex. 2014) (per cur iam). The evidence is legally sufficient if it would enable a reasonable and fair

- minded p erson to reach the ver dict under revi ew. City of Keller , 1 68 S.W.3d at 827 . “If the evidence at trial would enable reasonable a nd fair

- minded p eople to differ in thei r conclusions, then jurors must be allowed to do so.” Id. at 822. “A reviewing court canno t substitute its judgm ent for that of the trier

- of

- fact, s o long as the ev idence falls within this zone of reasonable disagreem ent.” Id. We app ly this standard mindful that this court is not a fact finder

. See Turner v. Ewing , 625 S.W.3d 510, 518 (Tex. App

. — H ouston [14th Dis t.] 2020, no pet.) (citing Maritime Ove rs eas Corp. v. El lis , 971 S.W.2d 402, 4 07 (Tex. 1998)). The fact fin der is the sole judge of the witnesses’ credibility and the weight afforded their testimony. Turner , 625 S.W.3d at 518

. “ Genera lly, lay testimony establishing
a sequence of events which pro vides a strong, l ogically traceable connection between the event and the condition is suff icient proof of causatio n.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). But e xpert testimony related to causation is required w hen an issue involve s matters beyond jurors ’

common un derstanding. See Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 583 (Tex . 2006 ). To prevai l on a negligence clai m, a p laintiff must prov e the existence of : (1 ) a legal duty ; (2) a breach of that duty ; (3) proximate causation; and (4 ) damages

. See Crosstex N. Tex. P ipeline, L.P. v. Gardiner , 505 S.W.3d 580, 607 (Tex. 2016)

. Pr oximate causation inco rporates two sub

- elements : cause

- in

- fact (or6

“ substantial fa c tor ” ) and foreseeability

. See Transc on ti nental In s. Co. v. Crump , 330 S .W.3d 211, 222 (T ex. 2010)

. “ C ause in fact is established when the act or omission was a subs tantia l factor in bringing about the injuries, and wi thout it, the ha rm would not have occurred.” Id. at 222

– 23

. Foreseeability, the o th er element of proximate cause, requi res that a person of ordinary intelligen ce should have anticipated the danger created by a negligent

a ct or omission. See Doe v. Boys Clubs of Greate r Dallas, Inc. , 907 S.W.2d 472, 478 (Tex. 1995).
2. Application
To de ter mine wh ether the jury ’ s finding on proximat e causation was supported by legall y
- sufficient e vidence , we start by consider ing the evidence in the light most favorable to the verdict a nd indulge every re asonable inference that would support fin ding proxim ate caus ation

. City of Keller , 168 S .W.3d at 8 21

– 22

. At trial, appellees called Ga briel Novak

— a civil engine er

— as an expert to testify regard ing Tenaris ’s water drainage syst em and to his opinion regarding

w hat caused appellees ’ homes to flood. According to N ovak , Tenaris’s water drainage syste m was d esigned to temporarily hold storm wa ter until it could be safely released into the surrounding are a ; to accomplish that goal, the drainage
sys tem , as designed by Fluor, was supposed to consist of thr ee general det ention ponds and a 44

- foot

- high berm surrou nding the perimeter of the detention ponds

. 4
Novak and Tenaris ’ s own experts testified that the wa ter

- drainage system, as designed, would be s ufficient to preven t the volume of water generated by a h undred

- year storm from escaping Tenaris ’ s property and f l oo ding appellees ’

4 A “berm” is a “ narrow shelf, path, or led ge typically at the to p or bo ttom of a slope ”; a berm can also be “a mound or wall of earth or sand.” See M erriam

- Webster , https: //www.m erriam

- webster.com/dictionary/b erm (last visited Jun. 23, 2023)

.7

pr op erties. 5

Howev er, Novak claimed that Tenaris ’s water

- drainage system failed to
meet the specif

i c ation s in Fluor ’s design plans

. R elying on his on

- site visit and pictures admitte d at trial, Novak asserted that Tenaris’s berm wal l was l ower than 44 feet in some areas and that the berm had holes in it at an elevation of 43 feet

. Base d on his calculations and the model testing he per formed, Nova k testified that that once the storm wa ter reached the water

- surface elevation of the hol es , the
storm water w ould flow t hrough the holes into the surrounding area , causing flooding. Novak opin e d that the berm , as built, would not and cou ld not operate as desi g ned

. Cha r les Kalkomey, an engine er for Matagorda County, testified that the Matagord a Count y Drainage District received multip le complaints regarding drainage in t he Tenaris facility area be fore the fa cility was even constructed. Kalkomey reached out to Tenaris to address the drainage is su es, bu t to the best of his knowledge, Tenaris neve r addre ssed th ose drainage issues.
Michael Pruett , one of the d irector s of the Drainage District, testified regarding flooding problems with the Te naris facility : “ [ I]t was all on the engineering draw ings, there w [ere] p roblems with that to start with

. . . . I ju st kn ow there ’s problems with people getting flooded out there since that facility

— when a million

- plus square f

eet of building was placed o n that place. ” In addition, s everal of the appellees also testified that over the last seventy years , their h omes had

ne ver flooded

— des pite being hit by other sev ere storms

— before the Tenari s

5 A “hundred

- year storm ” was defined at trial as an exc ess of 13.55 inches of rain f alling in a 24

- hour period. Lee B ranscombe, a hurrican e expert , testified that the Bay Cit y and Van Vleck a rea s , the cit ies where appellee s live, only received approximately 21.6 inches of rain during a fo ur

- day period. Thus, B ranscombe op ined that specifi cally as it affected Matagorda County, Hurricane Harvey would be cla ssified a twenty

- year stor m.8

facility was con structed.
Tenaris , through its own expe rts, provi ded evidenc e and testimony that its faci lity excee ded Flu or ’ s design plans in some respects ; fo r example, Te nari s cl aimed that the ber m was higher t han 44 feet in some areas. Johnathan Johnson, Tenaris ’ s mai ntenance manager, testified that he was on

- site , d riving a lo ng the berm, during the storm ; Johnson t estifi ed that he never saw storm water overflowing from t he facil ity. He f urther cl aimed that i f water had overflowed from the det ention ponds , his office a nd the visitor center would have floo ded, but the y never flo oded.

T enaris ’ s engi neering expert Jill Trevin o t estified tha t according to her reviews of the “ a s

- built ” drawings of the f acilities, the berm was b uilt accordin g to design specifica tio ns and cont ained no holes

. Th us, she opi ned that Te naris di d not

cause the flooding because no storm water wou ld have escaped t he Tenari s facility. However, she perform ed no mo d e ling, mapp ing, or surveying of the area. On appeal, Tenari s ’ s legal sufficiency chall en ge largely hinges on the following conversation t hat oc curred between Tenaris ’ s counsel and Novak : [ Q ]: Okay . But you hav en’t, have you? [A] : Done a detailed a nalysis of any of the specific plaintiff’s

homes? [Q] : Right. [A] : No, I have not. [Q] : In fact, y ou haven’t don[e] a general flooding analysis at

all about w hat happened in Van Vleck, Texas, have you sir ? [A] : No, I have not. [Q]: All you have looked at , sir, i s to grade t he papers of Fluor

and Jones and Carter, right?9

[A] : Yes. [Q]: Okay. And so i f the jury [is] going to be asked: Hey what

caused these poor folks to have their homes flooded durin g Hurri cane Harvey, you actually can ’ t answer that questio n, can y ou? [A]: As far as to the specific homes? [Q] : Yes, sir. [A]: No, I cannot answer that q uestion.
Th us, according to Tenari s, there is insufficient e vidence on causation bec ause appellees ’ expert admitted tha t he could not opine on causation. How ever, du ring

re

- direct, when questioned by appellees ’ counsel, Novak testified as follows: [Q]: M r . Novak, based on your education, work experience,

and your modelling, have you

— do you have an op inion based on a re asonable degree of engineering probabil ity wheth er or not the storm water drainage design plan as written by Fluor, and as implemented by Tenaris was a substan tial factor in bringing about the floo ding to plaintiffs ’ prop erties ? [A]: My opini on is that the failure of the Fluor design and its

im plementat ion was a factor in the flooding of the plain tiffs ’ properties.
I t does not mat ter that N ovak gave allegedly conflicting opinions on causation becaus e i t is the province of the jury to reso lve c onflicts in th e evidence, and when reasonable jurors could res olve conflicting evidence either way, we presume they did so in accordance with the ver di ct

. See City of Keller , 168 S.W.3d at 8 20. Even th ough Novak stated he could not opine on causation as to each of appel lees ’ specific homes, he later testifie d that T e naris ’ s failure to implement Fluo r ’ s design plan s was a substant ial factor in the flooding of appel le es ’ properties.10

In its supplemental briefing, Tenaris argue s that thi s was a case that requir ed
expe rt testimony on causation because it in volved complex i ssu es beyond the jurors ’ common understanding

. 6 See Mack Trucks , 206 S.W.3d at 583

. Thus, Tenaris asserts the evidence is legally insufficient because appe llees ’ exp ert did not specifically test i fy regardin g su bstantial causation

. In analyzing this argumen t, w e f ind it helpful to imagine cases involving experts on a spectr um

. On one end of the spectrum are cases in which an expert is always required

. See, e .g. , Tex. C iv. Prac. & Rem. Code Ann. § 74.351 (requ iring e xpert report in health

- care

- l iability claim s) . On the other end of the spectrum would be cases in which expert s are almost never required ; for example, a party would not ne ed an exper t to testify regarding causa tion in a simple s lip

- and

- fall t ort case

. I n the middle of the spectrum, are cases that might o r might no t require an e xpert , depending on the complexity of the case. Although not binding, we note that our sister court has concluded that flooding causation tends to fall in the mid dle of the spect rum: “ R egardless of whether an expert is requir ed to t estify specifically about the natural flow of surface water based on measurements of elevation , it is not always necessary to have expert testimony to establish flooding and its c auses. ” Michaelski v. Wright , 444 S.W.3d 83, 95 (Tex. App.

— Houston [1s t Dist. ] 2014, no pet.)

. We must then determine if the pre sent case was complex enough to require an expert , and w e disagree with Tenaris ’ s assertion that the cur rent case involve s co mplex fact s and issues beyond the jur ors ’ common understandin g.
Th is case is unl ike the many others in which expert testimony was held to be

6 We note that i n d etermining the alleged complexity of th e case and its issues , knowing the distance between T enaris and appellees ’ homes might have been help ful

. However, the distance between T enaris and the appellees ’ homes is unclear from the record and the appellate briefs , and Tenaris does not otherwise indi cate precise prox imity

.11

required

. See, e.g.
 ̧ Alexander v. Turtur & Assoc s
. , Inc. , 146 S.W.3d 113, 119 (Tex. 2004) ( con cluding that expe rt testimony o n causation is generally required in legal malpractice cases be cause “ t he wisdom and consequences of t hese kinds of tactical choices made during litigation are generally matters beyond the ken of most jurors ” ) ; Ins. Co. of N. Am. v. Myer s , 41 1 S.W.2d 710, 71 3 (Tex. 1966) (holding that, when coupled with insufficient e xpert t estimony, lay testimony and factual circumstances did not establis h that i n j ury aggravated exist ing cancerous tumor) ; Rayner v. Claxton , 659 S.W.3d 223, 255 (Tex. App

. — E l Paso 2022, no pet.) ( “ The physics involved in determining the distance at whic h it w ould take a truck at that weight to stop, c ombined with the mechanical knowledge about the brakes’ functionality and the effects of the braking violations noted by the offi cers, are not matters within ‘ a layperson ’ s general experience and common unde rstand ing ’ where lay testimony can provide adequa te proof of causation

. ” ) ; Pilgrim ’ s Pride Corp. v. Smoak , 134 S.W.3d 880, 894 (Tex. App.

— Texarkana 2004, pet. denied) ( obser ving that chemica l exposure cases generally require expert testimony on causation b ecause “ medically complex diseases and causal ambiguities compound the need for expert testimony ” ) ; Coastal Tankships, U.S.A., Inc. v. Anderson , 87 S.W.3d 591, 603 (Tex. App

. — Hou ston [1st Di st.] 2002, pet. denied) ( holding expert testimon y required because d ecedent contracted bronchiolitis obliterans organizing pneumonia (BOOP) , which has “ several possible causes and is idiopathic a third of the time ” )

. Just because exper t tes timony might be helpful or available does not mean that it is necessary. While it mi ght be beyond the common understanding of jurors to comprehend the natural flow o f wat er or the engineering behind the
storm

- drainage system, it is within their under standi ng to reason t hat if Tenari s ’ s facility overflow ed , it would cause flooding on nea rb y properties. Stated12

differentl y , the combined lay testimony and evidence in this case was sufficient to establish a sequence of events which provides a strong, logic ally t raceable

con nection between Tenaris ’ s negl igen ce and the flooding of appellees ’ pr operties

. Morgan , 675 S.W.2d at 733

. It is also worth noting that Tenaris does not point us to any part of the record where it notifie d the trial court of its conte ntion that expert testimony was specifically required on causation. Ultimately, t he jury h ea rd conflicting evidence regarding causation , a nd it reasonably could hav e believed Novak ’ s testimony over Tenari s ’ s e xperts

. See Gunn v. McCoy , 554 S.W.3d 645, 665 (Tex. 2018) ( agree ing with court of appeals that legally

- sufficient evi dence existed to su pp ort finding of proximat e cause when jury was present ed w ith conflict ing testimony from various experts )

. V iewed in the light most favorable to the appe llees, we hold th ere wa s lega lly sufficient evidence to support the jurors ’ findin g that Tenaris was a su bstantial factor in bringin g about appellees ’ harm. Regarding forese eability, Tenaris argues that Hurrica ne Harvey was an act of Go d, and thus, inheren tly un foresee able. Howe ver, even though Hurricane Harvey itself was not fore seeable, it is perfectly fore seeable that a negligently built
storm

- drainage system will cause flooding issues in nearby properties. This is especially true when flooding was a known issue in the area of the T enaris facility , even before the facility was construct ed. Thus, w e conc lude th ere was legally

- sufficient evidence of foreseeability

. Doe , 907 S.W.2d at 478

. Rega rding factual sufficiency, we cannot conclud e that the jury ’ s finding is

so against the great weight and preponderance of the evidence a s to be manifestly unjust

. Gol den E

agle Archery, Inc. v. Jackson , 116 S.W.3d 75 7, 773 (Tex. 2003)

. As detailed a bove , th e jur y was presented evidence from multiple experts regarding causation . The jury also h eard testimony from multi ple homeowners in13

the a rea, all testifying that th eir hom es had never flooded during prior hu r ricanes; their homes only floode d once the Tenari s facility was cons tr ucted

. Accordingly,

we conclude that the evidence was legally sufficien t to support the jury ’ s f inding and not fac t ually insuffi cie nt as to requi re a new trial

. W e overrule issue 1.

B
. Exclusion of expert testimony

In issue 2, Tenar is argues that the t rial court should hav e excluded Novak ’ s testimony regardi ng Zone C because i n his original dep osition, he ack nowledged that he had no t performed a speci f ic a naly sis for the Zone

- C prop erties. Thus,
T enaris claims that his testimony shou ld have been exclud e d as a n undisclosed

ex p e rt opinion. However, we find the cases that Tenaris relie s on to be
unpersuas ive.

A t rial court ’ s admission or ex clusion of expe r t testi mony is reviewed for an abuse of discretion. Gunn , 554 S.W.3d at 666

. A tria l court abuses its discretion by failing to follow guiding rules and principles. Id. To reverse a trial court ’ s judgment based on the exclusion of evidence, we must c onclud e that the t rial court did in fact commit error and th e error was harmful. Id. (ci ting Gee v . Liberty Mut. Fire Ins. Co. , 76 5 S.W.2d 394, 396 (Tex. 1989) )

. A party ’ s duty to supple ment written discovery regardin g a testifying expert is governed by Texas Ru l e of Civil Procedure 193.5. Tex. R. Civ. P. 193.5. U nder th at rule, the duty to supp le ment or amend arises when a party learns that its previous responses to written discovery wer e incomplete or inaccurate when ma de or are no longer complete or correct. T e x. R. Ci v. P. 193.5(a)

. C ourts have held that “ [a] last minute, material alteration in the expert ’ s tes timony is just as damaging as the complete failure t o list an expert. ” Colli ns v. Collins , 904 S.W.2d14

792, 801 (Tex. App.

— Houston [1st Dist. ] 1995) , wri t denied per curiam , 923 S.W.2d 569 (Tex. 1996) (emphasis added).

T enaris cites to case s such a s Beinar v. Deegan for the proposition t hat expert testimony at trial that materially varies from pre

- tri al disc losures should be excluded. Beinar , 432 S.W.3d 39 8 , 404 (Tex. App.

— Dallas 2014, no pet.)

. And while Beinar is not controlling on our court , it is al so d istinguishabl e from the
pr esent case . In Beinar , the suit i nvolved damages to the plaintiff ’ s home allegedly caused by defendants ’ landscaping renovation s

. Id. T he p laintiff ’ s expert in i tially concluded that “the foundation moveme nt and deflections measure s is not of a large magnitude at this time” and was considered “typical for a home of this age and construction.” Id . at 403. He also origina lly disclose d that “ [n] o found ation repairs or adjustment s are needed.” Id

. But a pproximately one year later, the expert noted new ten sion cracks he a ttributed to the defendants ’ renovations, and he stated such renovations caused, and will cause in the future, damage t o the plaintiff ’ s fou ndation. Id . at 403

– 04. The court of appea ls concluded that the trial court did not err in excluding the expert ’ s o pinion because t he expert m aterial ly altere d his opin ion

. See id. at 404

– 0 5

. By contrast, in the present case, Novak nev er materially alt ered his opinion. Accor d ing to appellees ’ original expert des ignation :
Mr. Nova k will opine on the acceptable standards and pr actice of storm wat er management f lood controls management in the S t ate of Texas. He will testify that the Hurric ane Harvey even t as it occurred in Van V leck a nd surrounding area was not an act of God, because the amount of rainfall that fell in the area w as not unprecedente d or extraordin ary and, in fact, was foreseeable. Mr. Novak will opine that Plaintiff ’ s proper ties were dam age d due to rainfall runoff , from the Tenaris Bay City facil ity. Further, M r. Nova k will testify that the Bay City facility ’ s int ernal drainage and storage system were inadequate, that the hydro

—

hydrologic study and hydraulic analysis of the f acility15

was inadequate, that the hyd raulic

— and hydraulic modeling approach used in the design and analysis of the internal drainage syst em was inadequate a nd not propert y developed. And that these acts, errors, and omissions previously listed, failed to me et th e ap plicable standards and r esulte d in the flooding of plaint iff ’ s homes and properties.
Nova k was always of the opinion that the f looding of app ellee s ’ propert ies was caused by Tenaris and that opinion never materially changed. We conclude that the
t rial cour t did not err in refusin g to e xclude Novak ’ s testimony. T ex. R. Civ. P. 193.5(a)

. 7

W e overrule issue 2.
C. S urface water

In issue 3 , Tenaris ar gues there was l egally

- and factually

- insufficient evidence that surface water flooded appellees ’ hom es

. 1. Standard of revi ew and ap plicable law

“ No person may divert or impound the natural flow of surface waters in this state, o r permit a diversio n or impounding by h im to continue, in a manner that damages the property of another by the overflow of the wa ter diverted or impo u nded. ” Te x. Water Code Ann. § 11.086 (a).

“ [S] urface water” is simply water or natural precipitation diffus ed over the surface of the ground until it either evaporates, is absorbed by the land, or reaches a bed or channel in which it is accustomed to flow. Consequen tly, a distinguishing feature of “surface water” is that it is never found in a natural watercour se. A “watercourse” has been judicially defined as having (1) a bank and bed, (2) a current of water, and (3) a permanent sour ce of supply.

7 In a related argument, Te naris asser ts that it was entitled to a new tria l because once Novak ’ s testimony is excluded, the re is no evidence regarding causation r egarding Z one C properties. Because we con clu de th at Novak ’ s testimony was properly admitt ed, we do not need to address this argume nt. T ex. R. App. P. 47

. 1.16

Dietrich v . Goodma n , 123 S.W.3d 413, 41 8 (Tex. App.

— Houston [14th D ist.] 2003, no pet.) (internal citations omitt e d)

. Stated differen tly, t he ch ief characteristic of surface water is that it “ does not follow a defined course or channel and do e s not gather into or f orm a na t ural body of water

. ” Id. at 419. Where rain water is under control by a ditch, tank, pond, or pi pe, it no longer
qu alifies as surface water. Id.

“ In c ontrast, f

loodwaters are those which, generally speaking, have overflowed a river, stream or natu ral wat er course and have forme d a continuous body with the water flowing in the ordinary channel. ” Tex a s Woman ’ s Univ. v. Methodist H

osp. , 221 S.W.3d 267, 278 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) (internal citations om itted ). T he State has the owne rship of , and the

non delegable duty to control , floodwaters ; thus, if the water that flooded app ellees ’ property is categ orized as floodwaters, Tenaris had no legal duty

. See i d.
2. Application Tenaris argues that while the e videnc e at trial esta blished that rai n water on Tena ris ’ s property could initially be categorized as surface water, it necessari ly must have passed throu gh a natural watercourse before rea ching appellees ’ properties , and thus the s urface water was converted to fl oodwater

. We d i sagree with Tena ris because the relev ant inquiry is whether it was surface water at the time of diversion

. Tenaris c ompares th e pre sent case to Dietrich , but we find it to be distinguishable

. 123 S.W.3d at 41 8

. In Dietrich, the plainti ff ass erted claims of negligence, tre spass, and violation of Water Code section 11.086 against his neighbor who allegedly landscaped aroun d and over a s torm sewer on his property, occlu ding the storm drain and diverting water into the plaintiff's home on a neigh borin g lot. Id. at 416

– 17. B efo re the water was diverted , it ha d been17

“concentrated and directed toward the drain by a shallow, but readily visibl e, natural gully, that extended s ixty feet or more into the wooded area.” Id. at 419

– 20. We stated that, und er the t hen

- e xisting law , a plain tiff had no cau se of action “stemming from the diversion of water contained in a nat ural watercourse.”

In other wor ds, the crucial fact in Dietrich was that the surfa ce water had already been travelling in a nat ur al watercour se before the defendant diverte d it. Our siste r court summarized Dietrich ’ s conclusion as follows:
the hol ding of D ietrich is actually limited to the fact that, u nder section 11.086, a landowner has no cause of action for damages arising from t he diversion of a water flowing in a waterc ourse (in that case, a natural gully) because such waters are no longer dif fused
sur face waters

. . . . In sum, noth ing in section 1 1.086 suggests that accumulated rainfall is no longer diffused surface water once it h as been, in any way, diverted by artifi cial means or t ouched by the hands of man

. Tex as Woman ’ s Univ. , 221 S.W.3d at 283

. Th e analy sis in Texas Wom an ’ s U n iversity focused on the identity of the water at the time it was diverted

— not the identity of the w ater when i t flooded the plain tiff ’ s proper ty. See i d. at 279

– 83 ; see also Good River Farm, LP v. Martin Marietta Materials, In c. , No. 1:17

- CV

- 1117

- RP, 2023 WL 2904577, at *4 (W.D. Tex. Apr. 11, 2023) ( “ Because [§ 11.086] contains no requirement t hat the w ater be ent irely surface water when it

reac hes the plainti ff ’ s property, the Court will not read in such a requirement where no ne exists. ” ).
While there was some evidence pre sented at trial that the water that flooded appellees ’ properties may hav e been at least part ially categorized as floodwater by passing through a channel a fter being diverted by Tenaris but before flooding the ir properties , t he re was no e vidence showing that the water was anything but surface
water at the time Tenaris divert ed it

. Tex as Woman ’ s Un iv. , 221 S.W.3d at 283

.18

T herefore , w e conclude that the evidence was legally and factually suffi ci ent to support the jury ’s finding that T enaris diverted surface water

. City of Keller , 168 S.W.3d at 827

. We over rule issue 3.

D
. Jury char ge instru ctions
In issue 4 , Tenaris asserts the tria l court erred by re fusing to include Tenaris ’s requested proximate

- cause and floo d

- w ater i nstructions

. 1

. St anda rd of r eview and a pplicable l aw Generally, the trial court has consi derable discretion in de termining the
prope r jury instructions, and we will only reverse if the trial court abused i ts discretion. See Columbi a Rio Grande Heal thcare, L.P. v. Hawley , 284 S .W.3d 851, 856 (Tex. 2009)

. The trial court abuses its discretion i f it acts arbitrarily or fails to follow gui ding rules and principles. See id

. According to Rule 277, the trial court should give “such instru ctions and defini tions as shall be proper to e nable the jury to render a verdict.” Tex. R. Civ. P

. 277. An inst ruction is proper if it “(1) assis ts the jury, (2) accurately states the law,

an d (3) finds support in the pleadings and evidence.” Hawley , 28 4 S.W.3d at 856

. But if a particular instru ction would exaggerate, minimize, or withdraw from the jury ’ s consideration some pertinent evidence, then su ch instruc tion is i mproper. See Moody v. EM C Serv s, Inc. , 828 S.W.2d 237, 244 (Tex. App.

— Houston [14th Dist.] 1992, writ denied)

. Thus, “ a trial court may refuse to give the jury a requested instruction when the instruction is not necessary to enable th e ju ry to

ren der a proper verdict, even if the instruction represents a correct statement of law. ” Haynes v. Unio n Pac. R.R. , 598 S.W.3d 3 35, 34 8 (Tex. App.

— Houston [1st Dist.] 2020, pet. dism’d)

. For this reason, the supreme court has generally advised that a jury cha rge19

for a statutory cause o f action should track the statutory language as closely as
pos sible. See Regal Fin. Co. v. T ex Sta r Motors, Inc

. , 355 S.W.3d 595, 601 (Tex. 2010) (“ The language may be slightly altered to conform the issue to the eviden ce pre sent ed in the case, but a court should not burden a jury with surplus instructions .” (intern al citation omitted)); Spencer v. Eag le Star Ins. Co. of Am. , 876 S.W.2d 154, 157 (Tex. 1994) (“[A] jury charge should track the language of the provision as closel y as possible.”)

. “ The omission of an instruction is reversible error only if the omission p robably c aused the rendition of an im proper judgme nt

. ” Shupe v. Lingafelter , 192 S.W.3d 577, 579 (Tex. 2006)

. Error in the omission of an issue is harmless “when th e fi ndings of the jury in answe r to other issues are sufficient to support the judgment

. ” Id

. at 579

- 80 (quoting Boatland of Houston,
Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980) ). 2. Application

a . Proximate

- cause instruction As relevant to this appeal, a ppell ees sue d Tenaris for com mon - law negligence , negligent nuisance, and negligence per se for violating the Water Code. For the neglig en ce and negligen t

- nuisance claims, t he jury was instructed as follows concerning pr oximate c aus ation : With respect to t he conduct of Tenaris Bay City, Inc. and Jones & Carter “proximate cause” means a cause, unbroken by any new and independent cause, that wa s a substantial factor in bringing about an injury, and without which cause such injury would not have occurred. In o rde r to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have fo reseen t hat the injury, or some similar injury, might reasonably result therefrom. There may be more than one proximate cause o f an inj ury, but if an act or omission of any person not a party to the suit was the “sole proximate c ause” of an injury, then no act or omissio n of any party could have been a proximate cause

. Tenaris requested that the proxi mate

- cause instruction also be g ive n t o the jury for20

the negligence

- per - se c laim for violating Water Code sect ion 11.086 , but the trial

cou rt denied Tenaris ’ s r equest ; Tenari s objected to its omission

. In question 5 of the jury charge, concerning section 11.086 , the j ury was asked, “ D id T enaris divert or impound surface water in a manner that dama ged Plaintiffs ’ properties? ” T he trial court included the follo wi ng instructio n s : “Surface Water” means water which is diffused over the ground from falling rains or melting s nows, and it cont inue s to be such until it reaches some bed or channel in which water is accustomed to flow. When rainfall is under control, eithe r by ditches, tan ks, ponds or pipes, it is no longer considered surface water. The diversion or impounding of surface water, if any , must have caused damages to Plaintiffs’ properties and without which cause such injury would not have occurred. The jury a n swere d , “ Yes. ” Tenaris claims that the trial court ’ s refusal to include an additional instruction in question 5 r egarding proximat e cause create d a negative inference, such th at the jury may have concluded that proximate cause was not par t of the causation el ement of th at theory of re covery. We note that the trial court ’ s language closely tracked the language of the statute and the l a nguage used in prior case law. See Tex as W

oman ’ s Univ. , 221 S.W.3d at 283 ; Dietrich , 123 S.W.3d at 41 8

. W e also observe that T enaris h a s no t cited any case where the omission of such an instruction was found to b e err oneous. The trial court did not err in refusing Tenaris ’ s additional requested in struction on proximate cause.

b. W ater instruction Tenaris also re quested the followi ng ins truction r egarding surface water and flood water : Surface water is distinct from both (i) flood waters and (ii) waters ent er ing or following a defined course or cha nnel. Flood waters are waters that have overflowed a natural water course but remain a21

co nti nuous part of that original part of the water course. Flood waters are not surface water. While this repres ents an accurat e statement of law, Tenaris has not demons trated that such an instruction was necessary to enable the ju ry to render a proper verdi ct

. See Haynes , 598 S.W.3d at 34 8

. T he trial court p roperly instructed the jury regarding surface water and i ts definition ; t h e trial court ’ s instructions were
accurat e and tracked the statute and case law

. Giv en the trial co urt ’ s discretion on this matter , i t m ay have concluded that an additional instruction on flood water may have burdened the jury with surplus ins truction s

. S ee Regal Fin. , 355 S.W.3d
at 601

. Fu rthermor e, the trial court may have deemed the requested i nstruction as

unnecessar y beca use eve n though there was evidence that the water may have been categorized as flood water by the time i t reached appelle es ’ propert ies, there was no evidence that the water Tenaris diverted had over flowed a natural water cour se

. Therefore, we conclu de the trial court did not err in refusing T enaris ’ s requested instruction on sur face water and floo d water. W e overrule issue 4

. E
. Resp o n sible third party In issue 5 , Tenar is asserts that the trial court erred by striking its desi gnation of a responsible third party

— Milberger Grass F a rm

. 1. Standard of r e view and a pplicable l aw To obtain a jury submission on pr oportionate respo nsibility , Tenaris needed
to establish the foll owing: (1) a duty requiring Milberger to conform to a cert ain standard of care; (2 ) the applica ble standard of care and its breach by Milberger ; (3) resulting injury; and (4) a reasonably clos e causal connecti on between

a ppellees’ injuries and Milberger ’ s negligence or breach of the standard of care. See Gunn v. McCo y , 489 S.W.3d 75, 95 (Tex. App.

— Ho uston [14th Dist.] 2016), aff ’ d , 554 S.W.3d 645 (Tex. 2018) ; see also T ex . C iv . P rac . & R em . C ode A nn

.22

§ 33.003(b) (stating that proportionate

- respo nsibility statut e “does not allow a submission to the jury of a q uestion regarding conduct by any pe rson without sufficient evidence to support the submission.”) ; T ex . C iv . P rac . & R em . C ode A nn

. § 33. 004( l ) ( “ After ad equate time fo r discovery, a party may move to strike the designation of a responsible third party on t he ground that there is no evidence tha t the designated person is responsible for any portion of the claimant ’ s alleged injury or damag e. The court shall grant the mot ion to strike unless a defendant produce s sufficient evidence to raise a genuine issue of fact regarding the design ated pers on ’ s responsibility for the claimant ’ s injury or damage.” ).
2. Application Tenaris argues the trial court erred in str iking its desi gnation of Milberger as a responsible th ird party based solely on evide nce from appellee Elliso r

. In a video taken during Hur

ric ane Harvey, Elliso r exclaimed that s torm water coming out of Milberger had always been a proble m , and Ellisor addi tionally descr ibed the water reaching his house as “ ru nning over the top of the road coming out of Milb erger ’ s Grass Farm. ”

T here is no evidence in the record reg arding Milberger ’ s duty or standard of

care, or whether Milberger ’ s alleged breach of the app licable s tandar d caused appelle es ’ injuries. Ellisor ’ s video on ly vaguely asserts that Milberger had been a prob lem in the past and th at s ome water came fr om the directio n of Milberger

. Th is lone piece of evidence from a single appellee constitutes no more than a s cinti l la of

ev idence

. See T ex . C iv . P rac . & R em . C ode A nn . § 33.003(b) ; s ee also In re Coppola , 535 S.W .3d 506, 508 (Tex. 2017) ( concluding trial court may strike responsible third

- party desi gnat ion if there are insuf fic ient facts concerning third
p arty ’s respon sibility )

. Therefore, w e conclude that the trial court did not err in striking Tenaris ’ s motion to designate a respo nsibl e third part y

. Gunn , 489 S.W.3d23

at 99 (co ncluding in medical malpractice case that defendants were not entitled to
comp arative responsi bility instruction on nurse s ’ alleged negligenc e even though expert testimony suggeste d nurses ’ conduct was problem atic )

. We overrule issue 5.
III. C ONCLUSION
We affi rm the judgment of the trial court as challenged on appeal

.

/s/ Cha rles A. Spain Jus tice

P anel consis ts of J u stices Wise , Bo urliot, and Spain

.