IN THE

TENTH COURT OF APPEALS

No. 10-09-00318-CV

LADD VIEN,

Appellant

v.

MARK AND MARY DEL BUONO,

Appellees

From the 40th District Court

Ellis County, Texas

Trial Court No. 74,750

MEMORANDUM OPINION

Mark and Mary Del Buono filed suit against Ladd Vien and others alleging that 

their home was flooded because of the defendants’ negligence in constructing and 

maintaining a driveway on Vien’s property which prevented rainwater from draining 

off the Del Buonos’ property. Following a bench trial, the court found in favor of the 

Del Buonos. Vien contends in six issues that: (1) he owed no legal duty to the Del 

Buonos; (2) the evidence is legally and factually insufficient to prove foreseeability; (3) 

the evidence is legally and factually insufficient to support the court’s implied rejection 
Vien v. Del Buono Page 2

of the defensive theory that the flood was an act of God; (4) the evidence is legally 

insufficient to support the court’s implied rejection of the defensive theory that Del 

Buonos failed to mitigate their damages; (5) the court applied the wrong measure of 

damages; and (6) the court erred by denying his cross-claim for contribution. We will 

affirm.

Background

The parties own adjoining lots in a rural area of Ellis County on Greathouse 

Road. The Del Buonos purchased their property from a home builder in 2001. Vien 

purchased the lot next door from the builder that same year because the builder “was 

needing some money fast.”1 Phillip and Sheree Freeman (Vien’s co-defendants2) 

bought the lot from Vien in 2005 to build a house. They asked him to take it back a year 

later after learning that the property was prone to flooding, and he did.

While the Freemans owned the land, Phillip constructed or improved3 a 

driveway on their property. He installed a twenty-four-inch culvert near Greathouse 

Road for drainage during the initial construction. He installed a second culvert for 

better drainage at Vien’s request a few weeks after selling the property back to Vien.

Heavy rains in 2004 inundated the vacant lot, and the water slightly encroached 

on the Del Buonos’ lot. Heavy rains in March 2006 again inundated the vacant lot, but 

 

1 Vien is a real estate agent.

2 Although the court found the Freemans jointly and severally liable, they did not perfect an 

appeal.

3 The parties dispute whether Phillip improved an existing driveway or constructed a new one. In 

Finding of Fact No. 16, the court found that he “constructed” the driveway. In the final analysis, this 

issue is irrelevant.
Vien v. Del Buono Page 3

this time the waters covered most of the Del Buonos’ lot as well. They could not leave 

that morning because their driveway was under water. Photographs admitted in 

evidence show that the waters came very close to the edge of the house. The Del 

Buonos asked that the Freemans do something to alleviate the problem. Mary Del 

Buono testified that Phillip and another man removed the culvert with a backhoe and 

the waters started draining from the property “almost instant[ly].” Phillip testified that 

he and some men scraped a swath across the top of the road just behind the culvert. He 

testified that it stopped raining about when they finished. He did not know if their 

work helped alleviate the water on the Del Buonos’ lot but assumed that it did.

The property was flooded again in March 2007 when as much as eleven inches of 

rain fell within 24-36 hours. This time the Del Buonos’ home flooded. They went to 

Vien’s office the next afternoon and demanded that he “break up” the driveway so the 

floodwaters could drain from their property. He followed them to the property where 

they showed him the damage to their home. He told them he would try to get a 

“tractor man” to come and break up the driveway, but he never did.

The water level got as high as twelve to eighteen inches inside the Del Buonos’ 

home, causing substantial damage. They removed the furniture and flooring. 

However, they did not attempt to repair the sheetrock or other interior damage. They 

have lived in a travel trailer on their driveway ever since.

The Del Buonos filed suit alleging that the negligence of the Freemans and of 

Vien proximately caused their damages. They alleged that the Freemans were negligent 

for constructing “an elevated drive” that “recontoured and reconstructed the elevation 
Vien v. Del Buono Page 4

and flow and/or drainage of water across their property.” They alleged that Vien was 

negligent by failing to take action to rectify this problem even though he was “aware of 

the diversion of water from his property to that of the Plaintiffs.”

Vien answered with a general denial; asserted as affirmative defenses: (1) the acts 

or omissions of the Del Buonos or a third party were the sole or partial cause of the 

damages; (2) the Del Buonos failed to mitigate their damages; and (3) the damages were 

caused in whole or part by an act of God; and further alleged that the Del Buonos were 

contributorily negligent. Vien also filed a cross-claim against the Freemans for 

contribution because they “did not fully disclose the effects of the driveway.”

The court found in favor of the Del Buonos and awarded $112,215 in damages. 

The court denied Vien’s cross-claim and also denied the Del Buonos claim for 

exemplary damages.

Duty

Vien contends in his first issue that he owed no legal duty to the Del Buonos.4 

Specifically, he argues: (1) the Del Buonos never specified in their pleadings what duty 

he owed them; (2) the trial court failed to enter a conclusion of law regarding what duty 

the court determined he owed them; (3) the Del Buonos’ home was damaged by flood 

waters, rather than surface waters; and (4) the State has a non-delegable duty to control 

flood waters.

 

4 The elements of a negligence claim are a duty, a breach of that duty, and damages proximately 

caused by the breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Vien v. Del Buono Page 5

Vien did not specially except to the Del Buonos’ pleadings. Thus, he has waived 

the right to complain of any failure on their part to plead what legal duty he owed 

them. See TEX. R. CIV. P. 90; Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 398 (Tex. 

App.—Dallas 2000, pet. denied).

Although Vien filed a request for additional findings of fact and conclusions of 

law, he did not request an additional conclusion of law on the issue of duty. If a party 

fails to request an additional finding of fact or conclusion of law on a particular issue, 

the party has waived its right to challenge the absence of an express finding or 

conclusion regarding that issue on appeal. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. 

App.—Houston [14th Dist.] 2000, no pet.); see TEX. R. CIV. P. 298.

Surface Water

Surface water is that “which is diffused over the ground from falling rains or 

melting snows, and [it] continues to be such until it reaches some bed or channel in 

which water is accustomed to flow.” Tex. Women’s Univ. v. Methodist Hosp., 221 S.W.3d 

267, 278 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Dietrich v. Goodman, 123

S.W.3d 413, 419 (Tex. App.—Houston [14th Dist.] 2003, no pet.)); accord Dalon v. City of 

DeSoto, 852 S.W.2d 530, 538 (Tex. App.—Dallas 1992, writ denied). The Supreme Court 

has defined surface water thusly:

Under both the common law and the Mexican civil law, the owners of the 

soil on which rains may fall and surface waters gather are the proprietors 

of the water so long as it remains on their land, and prior to its passage 

into a natural water course to which riparian rights may attach.
Vien v. Del Buono Page 6

Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 228 (1936); see Lewis v. Tex. Utils. 

Elec. Co., 825 S.W.2d 722, 724 (Tex. App.—Dallas 1992, writ denied) (“A private 

landowner has the right to control, retain, and use surface waters.”). “[T]he chief 

characteristic of ‘surface water’ is that it does not follow a defined course or channel 

and does not gather into or form a natural body of water.” Tex. Women’s Univ., 221

S.W.3d at 278 (quoting Dietrich, 123 S.W.3d at 419); see Dalon, 852 S.W.2d at 538.

Conversely, “floodwaters are those which, generally speaking, have overflowed 

a river, stream or natural water course and have formed a continuous body with the 

water flowing in the ordinary channel.” Tex. Women’s Univ., 221 S.W.3d at 278 (quoting 

Valley Forge Ins. Co. v. Hicks Thomas & Lilienstern, L.L.P., 174 S.W.3d 254, 258 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.)); see Raburn v. KJI Bluechip Invs., 50 S.W.3d 699, 

704 (Tex. App.—Fort Worth 2001, no pet.) (“Flood waters are waters above the regular 

flow of a stream.”); Lewis, 825 S.W.2d at 724 (same). “Ownership of flood waters, and 

the duty to control such waters, is vested in the State and its political subdivisions.” 

Lewis, 825 S.W.3d at 724 (citing TEX. CONST. art. XVI, § 59); accord Tex. Woman’s Univ., 221

S.W.3d at 278.

Thus, surface waters are waters from precipitation which migrate across land 

until they evaporate, are absorbed, or reach a water course. Flood waters, by contrast, 

are waters which overflow a water course but flow with the waters in that water course. 

By definition, surface waters are not flood waters. See Lewis, 825 S.W.2d at 724; see also 

Citizens Against Landfill Location v. Tex. Comm’n on Envt’l Quality, 169 S.W.3d 258, 274

(Tex. App.—Austin 2005, pet. denied) (“Diffuse surface water belongs to the owner of 
Vien v. Del Buono Page 7

the land on which it gathers, so long as it remains on that land prior to its passage into a 

natural watercourse”).

Vien argues that the waters which damaged the Del Buonos’ home were “flood 

waters” which the State has a non-delegable duty to control. To support this argument, 

he relies on the testimony of two experts who both referred to the land in that area as a 

watershed. According to Vien, this watershed forms a watercourse, and the waters 

flowing in this watercourse are by definition flood waters. We disagree.

Although they did refer to the area as a watershed, neither of the experts went 

further and opined that it was also a watercourse. For example, Jerry Ince testified that 

the Del Buonos’ property (and Vien’s) “is at the confluence of the bottom of the [240-

acre] watershed.” Waters from that watershed typically drain into a culvert beside 

Greathouse Road. A “pond sits on that 240-acre watershed, and when the driveway 

was built behind to extend it behind the spillway [sic], now it removed that watershed 

from the road to that driveway.” Thus, Ince testified that the construction of the 

driveway altered the natural flow of waters across the watershed. But Ince did not 

characterize the watershed as a watercourse. And we hold as a matter of law that it is 

not. See Tex. Woman’s Univ., 221 S.W.3d at 279 (“Opinions from our sister courts 

suggest that a watershed itself does not constitute a watercourse.”) “Otherwise, as soon 

as rain hit ‘any piece of land,’ the rain would automatically lose its classification of 

diffused surface water.” Id.; see also Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 787 (1925) 

(“in order to constitute a water course, there must be something more than mere surface 

drainage over the entire face of a tract of land”).
Vien v. Del Buono Page 8

Duty Owed

Under the common law, adjoining landowners have interrelated rights and 

duties with regard to surface water. The landowner whose property lies at a higher 

elevation cannot “burden adjacent lands with surface water he accumulate[s] or 

discharge[s] except in the same manner in which it would naturally flow; and the lower 

estate [i]s obliged to receive the surface waters as they naturally flow[ ].” Bily v. Omni 

Equities, Inc., 731 S.W.2d 606, 610 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d 

n.r.e.) (citing Kraft v. Langford, 565 S.W.2d 223, 228 (Tex. 1978)). As the Supreme Court 

stated in Kraft, “a landowner rule [can]not burden adjacent lands with surface water he 

accumulate[s] or discharge[s] except in the same manner in which it would naturally 

flow.” Kraft, 565 S.W.2d at 228; see also Bunch v. Thomas, 121 Tex. 225, 49 S.W.2d 421, 423 

(1932) (“a landowner cannot collect surface water into an artificial shannel [sic] or 

volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, 

to the substantial injury of the latter”).

5

Focusing in particular on the lower landowner (here, Vien), Texas courts have 

characterized the obligation to receive surface waters as they naturally flow as a legal 

duty. See, e.g., Stukes v. Bachmeyer, 249 S.W.3d 461, 466 (Tex. App.—Eastland 2007, no 

pet.); Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 469 (Tex. App.—Texarkana 

1998, pet. denied); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876

 

5

Section 11.086 of the Water Code imposes a similar statutory duty on landowners. See TEX.

WATER CODE ANN. § 11.086(a) (Vernon 2008); Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978); Boatman v. 

Lites, 970 S.W.2d 41, 44 (Tex. App.—Tyler 1998, no pet.); Bily v. Omni Equities, Inc., 731 S.W.2d 606, 610

(Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.). However, the Del Buonos did not plead a 

statutory cause of action.
Vien v. Del Buono Page 9

S.W.2d 940, 950 (Tex. App.—Beaumont 1994, writ denied); see also Wilson v. Hagins, 50

S.W.2d 797, 799 (Tex. Comm’n App. 1932, judgm’t adopted) (lower landowners “owe a 

service” to receive surface waters); Cone v. City of Lubbock, 431 S.W.2d 639, 649 (Tex. Civ. 

App.—Amarillo 1968, writ ref’d n.r.e.) (same). Thus, Vien owed a common law duty to 

the Del Buonos to allow surface waters to flow across his property without hindrance.

The waters which inundated the Del Buonos’ home were surface waters not 

flood waters. Therefore, the State owed no duty to regulate the flow of those waters, 

and Vien owed a duty to the Del Buonos to allow those waters to flow across his 

property without hindrance. Accordingly, we overrule Vien’s first issue.

Foreseeability

Vien contends in his second issue that the evidence is legally and factually 

insufficient to support the court’s implied finding of foreseeability.

For a legal insufficiency review, we must determine “whether the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under 

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We “must credit 

favorable evidence if reasonable jurors could, and disregard contrary evidence unless 

reasonable jurors could not.” Id.

 For a factual insufficiency review, reversal is required only if the challenged 

finding is “so contrary to the overwhelming weight of the evidence as to be clearly 

wrong and unjust.” Byrd v. Estate of Nelms, 154 S.W.3d 149, 156-57 (Tex. App.—Waco 

2004, pet. denied) (quoting Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).
Vien v. Del Buono Page 10

Foreseeability is one of the two sub-elements of proximate cause. W. Invs., Inc. v. 

Urena, 162 S.W.3d 547, 551 (Tex. 2005). Foreseeability “requires that a person of 

ordinary intelligence should have anticipated the danger created by a negligent act or 

omission.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); 

accord Barton v. Whataburger, Inc., 276 S.W.3d 456, 463 (Tex. App.—Houston [1st Dist.] 

2008, pet. denied). “A danger is foreseeable if its general character might reasonably be 

anticipated, if not its precise manner.” Barton, 276 S.W.3d at 463; accord Doe, 907 S.W.2d 

at 478.

Here, the trial court made the following findings of fact pertinent to the 

foreseeability issue:

12. The Court further finds that Defendants Freeman had actual and 

direct knowledge that the changes made by Defendants Freeman had 

caused flooding on Plaintiff’s [sic] property prior to the damage suffered 

by Plaintiffs.

13. The Court finds that Defendants Freeman informed Defendant 

Vien of the problems caused by Defendants Freeman prior to Defendant 

Vien’s purchase of the property from Defendants Freeman.

Mary Del Buono testified that when the Freemans purchased their lot in 2005 she 

informed them the property had some “drainage issues” and gave them some pictures 

depicting the flooding in 2004. The Freemans personally observed the water on the Del 

Buonos’ lot in 2006 when the rainwaters covered most of their lot and came close to 

their house.

Sheree Freeman testified that she told Vien they wanted him to take the lot back 

because “the place floods. We can’t build a house here.” She told him that the Del 
Vien v. Del Buono Page 11

Buonos had threatened to sue because of the incident in 2006. As part of the 

negotiations for Vien to repurchase the property, he asked them to install a second 

culvert under the driveway.

This evidence is such as “would enable reasonable and fair-minded people“ to 

find that it was foreseeable the driveway on Vien’s lot would cause the Del Buonos’ 

home to be flooded in a heavy rainstorm. See Tex. Woman’s Univ., 221 S.W.3d at 284; see 

also City of Keller, 168 S.W.3d at 827. Thus the evidence is legally sufficient to support 

the court’s implied finding on the issue of foreseeability.

The contrary evidence is that their home had not flooded during the heavy rains 

in 2004 or 2006. In addition, Vien denied that the Freemans warned him of any flooding 

problems. Nevertheless, we conclude that the implied finding of foreseeability is not 

“so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust.” See Byrd, 154 S.W.3d at 156-57. Thus, we overrule Vien’s second issue.

Act of God

Vien complains in his third issue that the evidence is legally and factually 

insufficient to support the court’s implied rejection of his defensive theory that the 

flooding of the Del Buonos’ home was an act of God.

“An occurrence is caused by an act of God if it is caused directly and exclusively 

by the violence of nature, without human intervention or cause, and could not have 

been prevented by reasonable foresight or care.” Dillard v. Tex. Elec. Coop., 157 S.W.3d 

429, 432 n.5 (Tex. 2005) (quoting COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX.,

TEXAS PATTERN JURY CHARGES—GENERAL NEGLIGENCE & INTENTIONAL PERSONAL TORTS
Vien v. Del Buono Page 12

PJC 3.5 (2003)). “[W]hat is meant by allusion to the absence of human intervention is 

not the absence of all human involvement but the absence of human negligence 

proximately causing the injury.” McWilliams v. Masterson, 112 S.W.3d 314, 321 (Tex. 

App.—Amarillo 2003, pet. denied).

The Del Buonos’ expert, Ince, testified that in his opinion the elevated driveway 

was a proximate cause of the flooding of their house. Vien’s expert James McDill stated 

in his report, “There is no denying that the installation of a 24” corrugated metal pipe 

culvert, combined with the existing driveway, created an obstruction which allowed 

floodwaters into the DEL BUONO HOUSE in March of 2007.” He further opined that, if 

the elevated driveway did not obstruct the ditch running along Greathouse Road, 

“there is a more than reasonable chance that these floodwaters from this particular 

storm would have also backed up into the DEL BUONO HOUSE.” During crossexamination, McDill agreed that “the driveway is the culprit here, not the culvert.” He 

also testified that the driveway and culvert “were the conditions that created allowance 

of the flood waters into the Del Buono house.”

The experts agreed that the elevated driveway caused the Del Buonos’ home to 

flood. This evidence is such as “would enable reasonable and fair-minded people“ to 

reject the defensive theory that the flooding was caused “directly and exclusively [by]

natural causes, without human intervention.” See Macedonia Baptist Church v. Gibson, 

833 S.W.2d 557, 560 (Tex. App.—Texarkana 1992, writ denied) (emphasis added).

The only contradictory evidence Vien refers to is the unusual severity of flooding 

experienced by Ellis County during this storm. The county was declared a disaster area 
Vien v. Del Buono Page 13

by the governor, and that precinct was purportedly “the hardest hit.”6 While 

acknowledging the unusual severity of the flooding, we cannot say that the court’s

implied rejection of the act of God theory is “so contrary to the overwhelming weight of 

the evidence as to be clearly wrong and unjust.” See Byrd, 154 S.W.3d at 156-57. Thus, 

we overrule Vien’s third issue.

Failure to Mitigate Damages

Vien argues in his fourth issue that the evidence is legally insufficient to support 

the court’s implied rejection of his defensive theory that the Del Buonos failed to 

mitigate their damages.7

A plaintiff must mitigate his damages if he can do so with “trifling expense or 

with reasonable exertions.” Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 857 (Tex. 

1999) (quoting Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426

(Tex. 1995)). The defendant bears the burden of proof on this issue and must show the 

extent to which damages were increased by the failure to mitigate. Young v. Thota, 271

S.W.3d 822, 830 (Tex. App.—Fort Worth 2008, pet. denied); see Alamo Cmty. Coll. Dist. v. 

Miller, 274 S.W.3d 779, 788 (Tex. App.—San Antonio 2008, no pet.).

The court admitted two repair estimates tendered by the Del Buonos. The first 

was prepared by Stanley Restoration in April 2007 and estimated total cost of repair and 

restoration to be $37,200. Mary testified that this estimate was based on replacing the 

 

6 According to a newspaper report offered in evidence, the roads in that precinct were “the most 

affected” by the heavy rains.

7 Vien specifically contends that the evidence conclusively establishes that the Del Buonos failed to mitigate 

their damages. This is a legal-insufficiency claim. See Hunter v. Ford Motor Co., 305 S.W.3d 202, 205 (Tex. 

App.—Waco 2009, no pet.).
Vien v. Del Buono Page 14

lower two feet of sheetrock throughout the house in addition to flooring and other 

necessary repairs. She also testified that they could not afford to pay for this, so they 

instead pulled out the carpet and other flooring. Mark Del Buono testified that Mr. 

Doyle from Stanley Restoration advised them not to remove the water-soaked 

sheetrock. Rather, they were advised to keep air circulating through the house with 

fans and spray the walls with bleach to minimize the chance of mold forming, and they

followed these recommendations. Mark likewise testified that they could not afford to 

have the repairs done that were recommended by Stanly Restoration. Mark and Mary 

both testified that they were concerned about their daughter’s asthma and did not want 

to open up the walls by removing sheetrock because it might exacerbate her condition.

Mold did form in the house, and the second estimate took this into account, 

requiring the removal and replacement of all the sheetrock and other steps to remediate 

the mold growth. The second estimate, prepared by Southland Construction Company 

in January 2009, estimated total costs of restoration and remediation to be $83,700.

Vien argued at trial and contends on appeal that the Del Buonos should have 

mitigated their damages by removing the water-soaked sheetrock.8

From the evidence, “reasonable and fair-minded people“ could have found that: 

(1) the Del Buonos could not afford to have the sheetrock removed as Vien contends 

they should have; (2) they reasonably followed Mr. Doyle’s advice in this regard; (3) 

they were not equipped to remove the sheetrock themselves; and (4) removal of the 

 

8 Vien also suggests that the Del Buonos’ failure to inform him of their intentions regarding the 

repair of their home and their failure to purchase flood insurance are relevant to this issue. However, he 

does not direct us to any legal authorities to support this contention, and our research has disclosed none.
Vien v. Del Buono Page 15

sheetrock would have required more than mere “trifling expense” or “reasonable 

exertions.” See Gunn Infiniti, 996 S.W.2d at 857; Mondragon v. Austin, 945 S.W.2d 191, 

195 (Tex. App.—Austin 1997, no pet.). Thus, the evidence is legally sufficient to support 

the court’s implied rejection of the defensive theory that the Del Buonos failed to 

mitigate their damages.

Vien argues in his brief that he is entitled to rendition of judgment on this issue, 

because the evidence (as he views it) conclusively establishes that the Del Buonos failed 

to mitigate their damages. We have rejected this contention. He argues in the 

alternative that the case should be reversed and remanded “for a proper determination 

of damages taking into account the Del Buonos’ failure to mitigate.” This alternative 

request depends on an affirmative finding that the Del Buonos failed to mitigate their 

damages. We have determined, however, that the evidence supports the court’s 

implied rejection of Vien’s contention that they failed to mitigate. Thus, Vien is not 

entitled to reversal and remand for a new damages hearing.

Accordingly, we overrule his fourth issue.

Proper Measure of Damages

Vien contends in his fifth issue that the court failed to use the proper measure of 

damages with regard to the court’s award of $12,500 for the contents of the home.

Although Vien contends that the court used the wrong measure of damages, his 

contention really is that the Del Buonos “did not submit evidence at trial of the loss in 

market value of their furniture.”
Vien v. Del Buono Page 16

Vien suggests that the proper measure of damages is the diminution in market 

value. However, a different measure applies for household furniture and other 

contents which have no recognized market value.

The law of damages distinguishes between marketable chattels possessed 

for purposes of sale and chattels possessed for the comfort and well-being 

of their owner. In the instance of the former it judges their value by the 

market price. In the instance of the latter it measures their loss, not by 

their value in a secondhand market, but by the value of their use to the 

owner who suffers from their deprivation. The latter measure is 

employed in the case of household furniture, family records, wearing 

apparel, personal effects, and family portraits.

Allstate Ins. Co. v. Chance, 590 S.W.2d 703, 703 (Tex. 1979) (per curiam) (quoting Crisp v. 

Sec. Nat’l Ins. Co., 369 S.W.2d 326, 329 (Tex. 1963)); see Gulf State Utils. Co. v. Low, 79

S.W.3d 561, 566 (Tex. 2002); Burns v. Rochon, 190 S.W.3d 263, 270 (Tex. App.—Houston 

[1st Dist.] 2006, no pet.). More succinctly, “[t]he measure of damages for the destruction 

of such items is the ‘actual worth or value of the articles to the owner for use in the 

condition in which they were at the time of [the injury] excluding any fanciful or 

sentimental considerations.’” Gulf State Utils., 79 S.W.3d at 566 (quoting Crisp, 369

S.W.2d at 328).

“It is well settled that a property owner may opine about the property’s value.” 

Id.; Burns, 190 S.W.3d at 270-71. “[T]he trier of fact may consider, in determining the 

actual value to the owner at time of loss, the original cost, cost of replacement, opinions 

of qualified witnesses, including the owner, the use to which the property was put, as 

well as any other reasonably relevant facts.” Gulf State Utils., 79 S.W.3d at 566 (quoting 

Allstate Ins. Co., 590 S.W.2d at 704). “[T]he jury has discretion to award damages within 
Vien v. Del Buono Page 17

the range of evidence presented at trial.” Id. (citing Price Pfister, Inc. v. Moore & Kimmey, 

Inc., 48 S.W.3d 341, 352 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)).

The Del Buonos testified and presented documentary evidence that the value of 

the household contents that were permanently damaged by the floodwaters was 

approximately $26,000.9 Vien is correct that they referred to these valuations 

inconsistently as either market value or replacement cost. Vien cross-examined them 

about the basis for their valuations, but he presented no evidence suggesting a different 

value.

The court’s award of $12,500 in damages for household contents was “within the 

range of evidence presented at trial.” Id.; see Burns, 190 S.W.3d at 270-71; Hironymous v. 

Allison, 893 S.W.2d 578, 582-83 (Tex. App.—Corpus Christi 1994, writ denied). 

Accordingly, we overrule Vien’s fifth issue.

Contribution

Vien claims in his sixth issue that the court erred by concluding that he is not 

entitled to “contribution and/or indemnity from the Freemans.”10

 

9

Plaintiffs’ Exhibit No. 8 is an itemized list of the household contents divided by room with 

subtotals included for the damaged items in each room (and a barn on the property). According to our 

calculations, the total loss indicated (including the contents of the barn) is $25,917.54. Mary testified that 

the total loss was $25,931.65.

10 The terms contribution and indemnity are often used interchangeably, but they do not mean the 

same thing. See George C. Hanks, Jr., Contribution and Indemnity after HB 4, 67 TEX. B.J. 288, 289 (2004). 

Contribution refers to the payment by each tortfeasor of his proportionate share of the plaintiff’s 

damages. See Gus M. Hodges, Contribution and Indemnity Among Tortfeasors, 26 TEX. L. REV. 150, 150 

(1947). Conversely, indemnity refers to the “shifting [of] the entire burden of loss from one tortfeasor to 

another.” B & B Auto Supply, Sand Pit & Trucking Co. v. Cent. Freight Lines, Inc., 603 S.W.2d 814, 816 (Tex. 

1980). Because of Texas’s proportionate responsibility statutes, “the common law right of indemnity is no 

longer available between joint tortfeasors in negligence cases.” Id. at 817.
Vien v. Del Buono Page 18

The judgment decrees that Vien and the Freemans are jointly and severally liable 

for the Del Buonos’ damages.11 The judgment denied Vien’s cross-claim against the 

Freemans for contribution. In Finding of Fact No. 1, the court similarly found them 

jointly and severally liable and that Vien is not entitled to contribution. In Finding of 

Fact No. 16, the court found that Vien is not entitled to contribution because he “was 

aware of the flooding problem caused by the road constructed by Defendant Freeman 

prior to the purchase from Defendants Freeman.”

 Vien cites section 33.016 of the Civil Practice and Remedies Code as the basis 

for relief. Section 33.016 applies to claims against a “contribution defendant,” which is a 

defendant “from whom the claimant seeks no relief at the time of submission.” See TEX.

CIV. PRAC. & REM. CODE ANN. § 33.016 (Vernon 2008). Here, however, the Del Buonos 

sought relief against both the Freemans and Vien, and the court found them both liable. 

Thus, section 33.016 does not apply.

Instead, section 33.015 governs contribution as between defendants who are 

parties to the judgment. Id. § 33.015 (Vernon 2008). A defendant’s right of contribution 

is based on the respective percentage of responsibility assigned to each party. Id. 

However, Vien did not seek a finding on the respective percentages of responsibility for 

each party. Vien’s failure to seek such a finding results in a waiver of any error in the 

 

11 Other than an intentional tortfeasor whose conduct violates one of fourteen penal statutes listed 

in section 33.013(b)(2), a defendant may be found jointly and severally liable only if his percentage of 

responsibility is found to be greater than fifty percent. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(b)

(Vernon 2008). Under this general principle of joint and several liability, it is mathematically possible for 

only one defendant to be jointly and severally liable. See Bay Rock Operating Co. v. St. Paul Surplus Lines 

Ins. Co., 298 S.W.3d 216, 233 (Tex. App.—San Antonio 2009, pet. denied). Thus, it was improper for the 

court to find both Vien and the Freemans jointly and severally liable. However, the Freemans have not 

perfected their own appeal.
Vien v. Del Buono Page 19

denial of his cross-claim for contribution. See Estate of Clifton v. S. Pac. Transp. Co., 709

S.W.2d 636, 638-39 (Tex. 1986) (defendant not entitled to remand where it failed to 

request additional deliberation for finding on co-defendant’s percentage of 

responsibility); Kansas City S. Ry. v. Mo. Pac. R.R., No. 09-06-00255-CV, 2008 Tex. App. 

LEXIS 5330, at *11-13 (Tex. App.—Beaumont July 17, 2008, pet. denied) (mem. op.) 

(defendant failed to preserve its factual sufficiency complaints by failing to request 

additional findings of fact). Accordingly, we overrule Vien’s sixth issue.

Having overruled the issues presented, we affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed December 15, 2010

[CV06]