Reversed in Part and Remanded and Opinion filed June 12, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-01017-CV

LAKES OF ROSEHILL HOMEOWNERS ASSOCIATION, INC., Appellant 

V.

DAVID BRUCE JONES, GREGORY KASPAR, PATRICIA KASPAR, 

WENDELL BUDISALOVICH, ALICIA R. VYKOUKAL, DAVID W. 

VYKOUKAL, MARK J. WOJCIK, JOHN KELLY DICKSON, CORA 

NADINE DICKSON, RONNIE J. MONTGOMERY AND MARY J. 

MONTGOMERY, Appellees 

On Appeal from the 55th District Court 

Harris County, Texas 

Trial Court Cause No. 2014-16762 

O P I N I O N 

This is a suit by the Lakes of Rosehill Homeowners Association, Inc. against 

multiple defendants to recover for property damage allegedly caused by flooding. 

The Association filed a petition for permission to appeal the trial court’s orders 

granting partial summary judgment for defendants on the Association’s common-
2

law tort claims.1 See Tex. Civ. Prac. & Rem. Code § 51.014(f); Tex. R. App. P. 28.3.

We granted the Association’s petition to address a controlling question of law 

identified by the trial court.

The question before us is whether the rule of joint and several liability in tort 

among defendants whose individual share of responsibility for a plaintiff’s injuries 

cannot be proven survives the State’s adoption of proportionate responsibility, now 

codified in Chapter 33 of the Texas Civil Practice and Remedies Code. We conclude 

that the rule of joint and several liability, as recognized in Landers v. East Texas Salt 

Water Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952), does survive. Accordingly, 

we reverse the trial court’s summary judgment orders in part and remand for further 

proceedings.

BACKGROUND

The Association serves homeowners in the Lakes of Rosehill subdivision (the 

Rosehill Subdivision). The Association owns and maintains reserve tract G, which 

contains a drainage channel constructed exclusively to convey storm-water runoff 

from the Rosehill Subdivision. 

To the east of the Rosehill Subdivision is the Cypress Fields Subdivision (the 

Cypress Subdivision). Surface water from the Cypress Subdivision is drained 

through roadside ditches to two primary drainage ditches along the east and west 

property lines. The drainage ditch along the west property line of the Cypress 

 

1 These orders include: (1) Order on Defendants Gregory Kaspar and Patricia Kaspar’s First 

Amended Motion for Summary Judgment signed on October 13, 2016, (2) Order on Defendants 

Mark J. Wojcik, David Vykoukal, Alicia Vykoukal, Ronnie Montgomery, and Mary 

Montgomery’s No-Evidence Motion for Summary Judgment signed on October 13, 2016, (3) 

Order on Defendants John Kelly Dickson and Cora Dickson’s Motion for Summary Judgment 

signed on November 21, 2016, (4) Order on Defendant David Bruce Jones’ Motion for Summary 

Judgment signed on November 29, 2016, and (5) Order on Defendant Wendell Budisalovich’s 

Motion for Summary Judgment signed on November 29, 2016.
3

Subdivision (the West Ditch), which borders the Association’s reserve tract, is 

located within a 30-foot drainage easement that includes portions of each of the 

defendants’ properties. 

The Association alleges that portions of the West Ditch owned by defendants 

contain blockages and obstructions such as overgrown vegetation, rocks, fences, and 

structures, and that other portions have been intentionally modified by the addition 

of fill, or compromised, modified, or not maintained. As a result, those portions of 

the West Ditch are not as wide or deep as shown on the original construction plans 

for the ditch. The Association alleges that these deviations from the original 

construction plans reduced flow capacity in the West Ditch, which caused surface 

water to overflow from the West Ditch onto the Association’s reserve tract. 

According to the Association, this overflow and seepage from the West Ditch caused 

erosion, sinkholes, washout, and other damage to its reserve tract. 

On March 27, 2014, the Association sued defendants for common-law 

nuisance, negligence, and trespass to land, as well as violations of the Texas Water 

Code and statutory public nuisance under section 343.011(c)(11) of the Texas Health 

and Safety Code. The Association seeks damages for past repair costs, injunctive 

relief to compel the defendants to maintain the West Ditch, and attorney’s fees. The 

Association alleges that defendants are jointly and severally liable for its injury 

because they failed to exercise ordinary care to maintain those portions of the West 

Ditch on their properties, which resulted in an indivisible injury because defendants’ 

individual responsibility for the injury cannot be apportioned with reasonable

certainty.

In September and October 2016, defendants filed identical no-evidence and 

traditional motions for summary judgment. The trial court signed orders granting 

no-evidence summary judgment in part for each defendant. The court first ruled on 
4

the First Amended Motion for Summary Judgment filed by defendants Gregory and 

Patricia Kaspar, granting them partial no-evidence summary judgment against the 

Association’s common-law tort claims for nuisance, negligence, and trespass (the 

Kaspar Order). In its Kaspar Order, the trial court “assumes for the purposes of this 

motion that the ditch in question has not been maintained, and that such failure has 

caused flooding of Plaintiff’s property. There are material and disputed issues of fact 

as to these matters.” The court denied the no-evidence motion for summary 

judgment as to causation. 

Regarding the common-law tort claims, the trial court concluded “[t]here is 

no such thing as joint and several liability for negligence or trespass in light of CPRC 

33.001, et seq. There is no evidence as to the Kaspar[s’] share of the tort liability for 

the damages claimed under any of these theories, so the Plaintiff could never support 

an allocation of liability.”2

 The court therefore granted summary judgment “as to 

common[-]law nuisance, negligence and trespass on no-evidence grounds. The 

Plaintiff[] ha[s] no evidence of the Kaspar[s’] specific proportion of the liability, so 

under no circumstances could tort damages be awarded.” The trial court’s orders 

granting partial summary judgment for the remaining defendants adopted the same 

rulings and reasoning. 

The trial court later granted the Association permission to appeal its orders, 

stating the controlling question of law as “whether the concept of joint and several 

liability for negligence or trespass among defendants whose individual share of 

causation cannot be proven by Plaintiffs survives the State’s move to proportional 

fault as expressed in CPRC 33.001 et seq.” The Association then filed a petition for 

permission to appeal with this Court, which we granted. See Tex. R. App. P. 28.3. 

 

2 The trial court explained that it was treating the Association’s nuisance claim as a type of 

negligence claim.
5

ANALYSIS 

I. We limit our review to the controlling question the trial court identified. 

In addition to the controlling question the trial court identified, the parties’ 

appellate briefs address several other questions, many of which were raised below. 

We therefore begin by considering the scope of this permissive interlocutory appeal. 

We construe section 51.014(d) of the Civil Practice and Remedies Code strictly 

because it provides for an interlocutory appeal, which is an exception to the general 

rule that only final judgments are appealable. Gulf Coast Asphalt Co., L.L.C. v. 

Lloyd, 457 S.W.3d 539, 545 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Our 

scope of review in a permissive interlocutory appeal is limited to controlling legal 

questions on which there are substantial grounds for disagreement and the immediate 

resolution of which may materially advance the ultimate termination of the litigation. 

Id. at 544; see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); Tex. R. App. P. 

28.3(e); Tex. R. Civ. P. 168. The parties may not add to the trial court’s description 

of the controlling legal question. Gulf Coast Asphalt Co., 457 S.W.3d at 544; see 

also White Point Minerals, Inc., v. Swantner, 464 S.W.3d 884, 890–91 (Tex. App.—

Corpus Christi 2015, no pet.) (court of appeals declined to reach additional issue 

raised by plaintiff given court’s limited scope of review in permissive appeals).

We granted the Association’s petition for permission to appeal to address one 

controlling question of law identified by the trial court. We therefore do not address 

other matters argued in the parties’ briefs. 

II. Chapter 33 did not abrogate the rule that defendants are jointly and 

severally liable when their torts cause an indivisible injury.

The trial court granted defendants summary judgment on the Association’s 

common-law tort claims based on its holding that the rule of joint and several 

liability did not survive the enactment of the proportionate (formerly comparative) 
6

responsibility scheme of Chapter 33 of the Texas Civil Practice and Remedies Code. 

In the Kaspar Order, the trial court concluded that “[t]here is no such thing as joint 

and several liability for negligence or trespass in light of CPRC 33.001, et seq.” 

We disagree with the trial court’s conclusion, which is contrary to decisions 

of the Supreme Court of Texas. The supreme court recognized the rule of joint and 

several liability in 1952 in Landers, stating that “[w]here the tortious acts of two or 

more wrongdoers join to produce an indivisible injury, that is, an injury which from 

its nature cannot be apportioned with reasonable certainty to the individual 

wrongdoers, all of the wrongdoers will be held jointly and severally liable for the 

entire damages and the injured party may proceed to judgment against any one 

separately or against all in one suit.” 248 S.W.2d at 734. The plaintiff in Landers

alleged that the pipelines of two separate defendants broke and poured salt water and 

oil into the plaintiff’s lake, producing an indivisible injury. Id. at 731–32. The 

supreme court held that these allegations were sufficient to assert joint and several 

liability. Id. at 734.

In 1987, the Legislature made substantial changes to Chapter 33 of the Texas 

Civil Practice and Remedies Code. In negligence and products liability actions to 

which Chapter 33 applied, the statute required the trier of fact to find the percentage 

of responsibility with respect to each claimant, defendant, and settling person.3 The 

statute also established thresholds for joint and several liability: a defendant was 

jointly and severally liable for the claimant’s damages (reduced by the claimant’s 

own percentage of responsibility) only if that defendant’s responsibility exceeded 

certain percentages and the claimant’s responsibility fell below certain percentages.4

 

3

See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 37, 40 (amended) 

(current version at Tex. Civ. Prac. & Rem. Code Ann. § 33.001).

4

See id. §§ 2.04, 2.08–2.09 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 

33.012–.013).
7

These thresholds for joint and several liability, as subsequently amended, appear in 

section 33.013.

Since the 1987 amendments to Chapter 33, the supreme court has twice 

acknowledged the rule of joint and several liability stated in Landers. In Kramer v. 

Lewisville Memorial Hospital, the supreme court explained that “[t]he only 

exception we have recognized to our longstanding causation principles is where the 

inextricable combination of joint tortfeasors combines to cause harm in a manner 

where individual responsibility cannot be fixed.” 858 S.W.2d 397, 405 (Tex. 1993)

(citing Landers, 248 S.W.2d at 734). “In these situations, liability is fastened only 

after a judicial determination that the claimant’s injuries were caused by someone, 

but proof of that responsibility is impossible.” Id. at 406.

Next, in Amstadt v. United States Brass Corp., 919 S.W.2d 644 (Tex. 1996), 

the supreme court applied its decision in Landers that defendants are jointly and 

severally liable when their tortious acts cause an indivisible injury. The plaintiff 

homeowners in Amstadt sued multiple defendants who they alleged were jointly

responsible for the failure of the plumbing systems in their homes. Id. at 647–48. 

The court of appeals, like the trial court in the present case, concluded that the 

plaintiffs’ failure to show each individual defendant’s share of liability defeated their 

ability to recover damages. The supreme court disagreed:

Finally, we turn to the issue of comparative liability when the 

negligence of several defendants causes an indivisible injury. The court 

of appeals held that for certain plaintiffs . . . , “there is no evidence from 

which the jury could have allocated the liability as it did between U.S. 

Brass and Vanguard,” and that accordingly, “there was no evidence of 

causation of damage to the homes and personal property” of those 

plaintiffs. . . .

If, however, there was evidence that U.S. Brass’ negligence was a 

proximate cause of the plaintiffs’ damages, U.S. Brass’ responsibility 
8

for that damage did not evaporate if the jury erred in apportioning 

liability between U.S. Brass and Vanguard. If the injuries arising from 

the plumbing system could not be apportioned with reasonable 

certainty, then the plaintiffs’ injuries were indivisible, and the 

defendants are jointly and severally liable for the whole. See Landers

. . . . We accordingly reverse the court of appeals’ take-nothing 

judgment as to the plaintiffs’ negligence claims, and remand those 

claims to the trial court. At retrial, U.S. Brass will have the burden of 

apportioning its liability for the plaintiffs’ injuries.[

5

] If U.S. Brass 

cannot establish its percentage of liability, and thus remains liable for 

the whole, the trial court should credit U.S. Brass for the amounts the 

plaintiffs received in settlement from other tortfeasors. 

Id. at 653–54. Thus, even after the 1987 enactment of Chapter 33’s provisions 

regarding joint and several liability, the supreme court held that if responsibility for 

the plaintiffs’ damages could not be apportioned among the defendants with 

reasonable certainty, the defendants may be held jointly and severally liable.

6

 Defendants argue, however, that the 1995 and 2003 amendments to Chapter 

33 abrogated the supreme court’s holdings in Landers and Amstadt that defendants 

are jointly and severally liable when their tortious acts cause an indivisible injury. 

Among other things, defendants cite an analysis of the 1995 bill amending Chapter 

 

5

 The supreme court did not cite section 433B(2) of the Restatement (Second) of Torts, but this 

statement suggests that the court may have been applying that section, which provides:

Where the tortious conduct of two or more actors has combined to bring about harm 

to the plaintiff, and one or more of the actors seeks to limit his liability on the 

ground that the harm is capable of apportionment among them, the burden of proof 

as to the apportionment is upon each such actor. 

Restatement (Second) of Torts § 433B(2) (1963). A dissenting justice in the court of appeals had 

applied section 433B(2). See Barrett v. U.S. Brass Corp., 864 S.W.2d 606, 642 (Tex. App.—

Houston [1st Dist.] 1993) (Dunn, J., concurring and dissenting), rev’d, 919 S.W.2d 644 (Tex. 

1996) (concluding that because there was evidence defendants caused an indivisible injury, the 

burden shifted to defendants to apportion damages among themselves under section 433B(2)).

6 This Court has also acknowledged the principle of joint and several liability for an indivisible 

injury after 1987, though we held that the plaintiff in that case had not suffered an invisible injury. 

See Stewart & Stevenson Servs., Inc. v. Serv-Tech, Inc., 879 S.W.2d 89, 101 (Tex. App.—Houston 

[14th Dist.] 1994, writ denied) (discussing Landers).
9

33 that (1) as part of the background section, references the legal principle that 

defendants are jointly and severally liable when their tortious acts cause an 

indivisible injury, and (2) notes statements by opponents of the bill that one 

justification for joint and several liability is “to cover those cases in which multiple 

defendants produced only a portion of the harm but where it was impossible for the 

plaintiff to determine what percentage each of those defendant’s caused,” and that 

“joint and several liability should not be altered.”7 

“Of course, statutes can modify common law rules, but before we construe 

one to do so, we must look carefully to be sure that was what the Legislature 

intended.” Entergy Serv. Co. of Bowie, Inc. v. Superior Snubbing Servs., Inc., 236 

S.W.3d 190, 194 (Tex. 2007). We conclude that the Legislature has not done so here 

for two reasons. 

First, nothing in the text of Chapter 33 indicates that the Legislature intended 

to abrogate the Landers rule of joint and several liability. Section 33.002 presently 

provides, in relevant part, that Chapter 33 applies to “any cause of action based on 

tort in which a defendant, settling person, or responsible third party is found 

responsible for a percentage of the harm for which relief is sought.” Tex. Civ. Prac. 

& Rem. Code Ann. § 33.002(a)(1). Similarly, section 33.013 limits joint and several 

liability based on a defendant’s “percentage of responsibility” as “found by the trier 

of fact.” Tex. Civ. Prac. & Rem. Code Ann. § 33.013(a), (b)(1). If responsibility for 

the plaintiff’s injury cannot be apportioned with reasonable certainty among the 

defendants and other responsible parties (as in Landers and Amstadt), then by 

definition the trier of fact cannot find any of them “responsible for a percentage of 

 

7 House Research Organization Bill Analysis, Tex. S.B. 28, 74th Leg., at 2, 8 (May 3, 1995).
10

the harm,” and Chapter 33 does not apply.8 See White v. Zhou Pei, 452 S.W.3d 527, 

543–44 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding Chapter 33 

inapplicable where there was no finding that defendants were responsible for 

percentage of harm); Onyung v. Onyung, No. 01-10-00519-CV, 2013 WL 3875548, 

at *11 (Tex. App.—Houston [1st Dist.] July 25, 2013, pet. denied) (mem. op.)

(same); Barnett v. Home of Tex. & Warranty Underwriters Ins. Co., Nos. 14-09-

01005-CV, 14-10-00197-CV, 2011 WL 665309, at *7 n.11 (Tex. App.—Houston 

[14th Dist.] Feb. 24, 2011, no pet.) (mem. op.) (“[C]hapter 33 generally governs 

cases involving ‘proportionate responsibility’ among liable parties, wherein persons 

are held responsible for percentages of the harm, and is generally not applicable to 

cases such as the present one wherein two defendants were held jointly and severally 

liable for the same damages”); Tex. Capital Sec., Inc. v. Sandefer, 108 S.W.3d 923, 

925–26 (Tex. App.—Texarkana 2003, pet. denied) (“[Defendants] were held jointly 

and severally liable; therefore, by its express terms, Chapter 33 is not applicable”).

This recognition that Chapter 33 does not supersede a common-law rule of 

joint and several liability is not unique to the Landers rule. As this Court and others 

have held, “[c]ommon-law joint-and-several-liability rules for partnership, agency, 

joint venture, and piercing the corporate veil situations survived the enactment of 

§ 33.013 of the Texas Civil Practice and Remedies Code.” Carl J. Battaglia, M.D., 

P.A. v. Alexander, 93 S.W.3d 132, 144 (Tex. App.—Houston [14th Dist.] 2002), 

aff’d in part, rev’d in part on other grounds, 177 S.W.3d 893 (Tex. 2005); see also 

N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 121–22 (Tex. App.—Beaumont 

2001, pet. denied). 

 

8 Kramer suggests that the question whether proof of individual responsibility is impossible is a 

legal question for the court to determine. 858 S.W.2d at 405–06; see also Restatement (Second) 

of Torts § 434(1)(b) (1965).
11

Second, the features of Chapter 33 relevant to this question have remained 

essentially unchanged since 1987, and the supreme court held in 1996 that joint and 

several liability was proper when there was no evidence to support the jury’s 

apportionment findings because responsibility could not be apportioned with 

reasonable certainty. Amstadt, 919 S.W.2d at 654. There is no change in the 1995 or 

2003 amendments to Chapter 33, nor even a clear statement in the legislative history 

cited by defendants, that shows the Legislature has abrogated either Amstadt or 

Landers. 

As explained above, it was the 1987 amendments that established thresholds 

for joint and several liability in cases where a defendant is found responsible for a 

percentage of the harm. As relevant here, the 1995 amendments broadened the scope 

of Chapter 33 from negligence and products liability to include all torts (with some 

exceptions), and raised the threshold for a defendant’s joint and several liability from 

greater than 10% or 20% responsibility to greater than 50% responsibility in many 

cases.9

 The 2003 amendments repealed an exception that had set a 20% 

responsibility threshold for joint and several liability in environmental 

contamination and toxic tort cases.10 

In sum, the 1987, 1995, and 2003 versions of Chapter 33 each required 

percentage findings of responsibility and included thresholds for joint and several 

liability. Defendants have not explained why the 1987 version of Chapter 33 did not 

abrogate the Landers rule of joint and several liability for an indivisible injury, but 

the 1995 or 2003 versions did. Nor have we found any support for such a position. 

Since Chapter 33 was amended in 2003, Texas courts of appeals have continued to 

 

9

See Acts 1995, 74th Leg., R.S., ch. 136, § 1, eff. Sept. 1, 1995 (amended) (current version at Tex. 

Civ. Prac. & Rem. Code §§ 33.002, 33.013).

10 See Acts 2003, 78th Leg., R.S., ch. 204, § 4.07, eff. Sept. 1, 2003 (amended) (current version at 

Tex. Civ. Prac. & Rem. Code Ann. § 33.013).
12

recognize that if responsibility for a plaintiff’s injury by its nature cannot be 

apportioned among wrongdoers with reasonable certainty, each defendant is jointly 

and severally liable under Amstadt or Landers.

11

Finally, defendants argue that their position is supported by sections 17 and 

D18 of the Restatement (Third) of Torts: Apportionment of Liability (2000). They 

point to commentary accompanying section 17 as indicating that when the 

independent tortious conduct of multiple persons causes an indivisible injury, each 

tortfeasor is only jointly and severally liable under Chapter 33 if his or her individual 

responsibility is greater than 50%. See id. § 17 cmt. a & reporter’s note.12

 

But the text of section 17 provides that “the law of the applicable jurisdiction 

determines whether those persons are jointly and severally liable,” id. § 17, and 

section D18 addresses the joint and several liability of “each defendant who is 

assigned a percentage of comparative responsibility” above or below the legal 

threshold. Id. § D18. As explained above, Chapter 33’s percentage thresholds for 

joint and several liability in Texas are inapplicable by their own terms to a situation 

where responsibility cannot be apportioned among defendants with reasonable 

 

11 E.g., Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 112 (Tex. App.—Houston [1st Dist.] 

2012, pet. denied) (quoting Landers, 248 S.W.2d at 734); Gilcrease v. Garlock, Inc., 211 S.W.3d 

448, 457 (Tex. App.—El Paso 2006, no pet.) (“Joint tortfeasors are defined as parties whose 

tortious conduct combines as a legal cause of a single and indivisible harm to the injured party”) 

(citing Landers); see also PHI, Inc. v. LeBlanc, No. 13-14-00097-CV, 2016 WL 747930, at *6 

(Tex. App.—Corpus Christi Feb. 25, 2016, pet. denied) (mem. op.) (citing Amstadt as 

“acknowledging that Texas courts usually apply comparative fault analysis unless the defendant 

who has the burden of apportioning its liability for the plaintiff’s injuries cannot establish its 

percentage of liability, and thus remains liable for the whole”); Onyung, 2013 WL 3875548, at *11 

(discussing Amstadt and Landers and holding that because “Mrs. Onyung’s injuries are indivisible 

and cannot be apportioned with reasonable certainty between Yuen and his law firms,” Yuen and 

the firms are jointly and severally liable).

12 Defendants also argue that the Restatement (Third) rejects the burden-shifting approach of 

section 433B(2) of the Restatement (Second). To the contrary, the Restatement (Third) preserves 

that approach with some modifications. See Restatement (Third) of Torts: Apportionment of 

Liability § 26 cmt. h (2000). 
13

certainty. Defendants’ position is that “evolving law” on apportionment of liability 

as reflected in the Restatement does not permit joint and several liability for 

indivisible injuries unless a defendant is assigned a percentage of responsibility 

above the threshold.13 That position does not represent current Texas law. We agree 

with the Restatement, however, insofar as it indicates that joint and several liability 

in this situation is determined by applicable Texas law, which—as the supreme court 

confirmed in Amstadt—includes the Landers rule. 

CONCLUSION

Both before and after provisions regarding joint and several liability were 

included in Chapter 33, the Supreme Court of Texas held that where the tortious acts 

of two or more wrongdoers join to produce an injury that by its nature cannot be 

apportioned with reasonable certainty among them, all defendants will be held 

jointly and severally liable for the entire injury. The trial court therefore erred in 

concluding that this common-law rule of joint and several liability for an indivisible 

injury did not survive the enactment of Chapter 33, and in granting summary 

judgment against the Association’s common-law tort claims on that basis. We do not 

address whether the Association’s alleged injuries are indeed indivisible such that 

responsibility for them cannot be apportioned among defendants with reasonable 

certainty, as that question is outside the scope of this interlocutory appeal. 

 

13 We note that the Restatement (Third) distinguishes between divisibility of damages by causation 

and apportionment of liability for indivisible damages by responsibility. See Restatement (Third) 

of Torts: Apportionment of Liability § 26 & cmt. a. The Restatement (Third) does not appear to 

contemplate a situation in which responsibility for indivisible damages cannot be apportioned with 

reasonable certainty.
14

We reverse the portions of the trial court’s orders granting summary judgment 

on the Association’s claims of common-law nuisance, negligence, and trespass and 

remand for further proceedings. 

/s/ J. Brett Busby

 Justice 

Panel consists of Justices Boyce, Busby, and Wise