Centerpoint Houston Electric, LLC v. 5433 Westheimer, LP 5433 Westheimer, GP LLC and Songy 5433 Westheimer GP LLC

Opinion issued June 14, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00335-CV

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CENTERPOINT HOUSTON ELECTRIC, LLC, Appellant

V.

5433 WESTHEIMER, LP; 5433 WESTHEIMER, GP LLC AND SONGY

5433 WESTHEIMER GP LLC, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2012-75635

MEMORANDUM OPINION

CenterPoint Houston Electric, LLC supplies electricity to a commercial

building located at 5433 Westheimer. CenterPoint sued the owners and operators

of the building after a connection between the city’s water supply line and the

building’s internal plumbing separated and caused significant flooding that

destroyed CenterPoint’s electrical equipment in the building’s sub-basement.

CenterPoint contended that the 5433 Westheimer defendants were negligent,

relying, in part, on the res ipsa loquitur doctrine. Following a bench trial, the trial

court entered a defense verdict, and CenterPoint recovered nothing on its claims.

CenterPoint raises three issues. First, it raises a factual sufficiency challenge

to the trial court’s judgment. It also argues that the trial court erred by considering

evidence of a presale inspection and applying the wrong legal standard regarding a

property owner’s duty.

We affirm.

Background

CenterPoint asserted a negligence claim against 5433 Westheimer, LP,

AmREIT 5433 Westheimer GP, LLC, and Songy 5433 Westheimer GP, LLC. It

alleged that the defendants’ negligent inspection and maintenance of the

connection between the city’s water supply line and the building’s internal

plumbing system proximately caused the destruction of its equipment. Specifically,

CenterPoint alleged that a proper inspection would have uncovered the need for a

“thrust restraint” at the point where the piping separated and proper maintenance

would have led to the installation of a thrust restraint to prevent pipe separation.

CenterPoint also alleged that the defendants failed to properly monitor the

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basement for water accumulation, which allowed what could have been a much

smaller leak to become an 890,000 gallon flood.

CenterPoint relied on the res ipsa loquitur doctrine, arguing that the

character of the accident was such that it could not have occurred without the

defendants’ negligence and that the plumbing system was under the defendants’

sole management and control.

The flooding that damaged CenterPoint’s equipment occurred on a holiday,

New Year’s Day 2011, while the on-site property manager was not on duty. She

received a call from the answering service around 11:00 a.m. informing her that an

elevator was malfunctioning. She arrived approximately two hours later. As she

arrived, she received a call from the fire department informing her that a fire alarm

had activated. After that, she heard two loud explosions and called the fire

department to investigate. When the fire department arrived, the sub-basement was

completely under water and the upper basement had between four and five feet of

water in it.

The property manager hired Paul Davis Restoration to extract the water. It

took six days to extract more than 890,000 gallons of water from the basement.

CenterPoint’s electrical equipment that powered the building was destroyed by the

water damage and had to be removed and replaced.

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The plumber who responded to the service call that day, Wayne Spivey,

determined that the water breach was caused by a misalignment of a 6-inch

mechanical joint coupling that connected the city’s water supply to the building’s

plumbing. His investigation revealed that the pipes on either side of the coupling

were no longer properly aligned. The connection did not twist open; instead, one

pipe moved away from and out of alignment with the coupling that connected it to

the other pipe. He saw no evidence that the coupling had worn or was otherwise

damaged.

This was not the first significant building flood Spivey had dealt with that

was caused by a mechanical failure; he had seen “multiple” failures over his 43-

year plumbing career. Spivey testified that there was not a thrust restraint at the

pipe connection point that became misaligned. A thrust restraint is a piece of angle

iron, mounted to a wall, floor, or other relatively rigid structure, that holds piping

in place and prevents it from rotating. He testified that he would have

recommended using one at that location to help prevent pipe movement; however,

he did not testify that it was negligent not to have included one. Regarding whether

a thrust restraint would have prevented the pipe separation, i.e., causation, he

testified: “Not necessarily,” but “[i]t could” have.

The director of operations for AmREIT, a real estate investment trust that

operated and managed the building, and the on-site building manager both testified

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that they were unfamiliar with thrust restraints and were unaware that there was not

a thrust restraint holding this plumbing connection in place.

CenterPoint called Richard Tonda, a mechanical engineer with a Ph.D. in

mechanics and materials, to testify as an engineering expert. He was familiar with

the type of coupling used in this pipe configuration. The coupling was designed to

last the life of the pipe. Tonda asked to inspect the coupling but was told that it was

no longer available. Tonda testified that, based on the information he could obtain,

the cause of the pipe misalignment was “probably” water pressure fluctuation in

the water system, which can cause “water hammer,” meaning a repeated thrust of

water hitting the building’s pipes with enough force to move the pipes out of

alignment.

When asked whether a thrust restraint would have prevented the pipe

misalignment, Tonda responded:

Well, such a thrust restraint would have inhibited the kind of motion

that we saw in this failure and certainly could possibly have prevented

that. Now, there’s no perfect answer to anything, as Mr. Spivey

indicated to you just earlier. . . . A properly designed thrust restraint

would have prevented this kind of motion, yes. Would that have

prevented this catastrophe completely, without knowing a few more of

the details, I don’t guess we will ever really know all of those

things. . . . But it’s pretty reasonable to conclude that had this kind of

thrust restraint been provided, it certainly would have inhibited this

motion. There’s no doubt about that.

Tonda agreed that the pipe installer “should have” included a thrust restraint.

Further, it would have been “a good practice,” post-installation, to determine

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whether a thrust restraint had been incorporated into the system and, if not, to add

one. However, like Spivey, he did not testify that the failure to include a thrust

restraint was negligent or breached any professional standards.

CenterPoint also called Timothy Hatch, a consulting engineer who performs

failure analysis, to testify concerning the cause of the pipe-system failure. Hatch

agreed with Tonda that the likely cause of the pipe movement was a fluctuation in

water pressure coming into the building. This could have caused a “water hammer”

effect. Also like Tonda, Hatch testified that his “water hammer” opinion was

supported by reports that the city was working on the water pipes in the area and

was turning the water on and off to do so. In his opinion, “there should have been

some sort of a thrust restraint to keep the pipe from rotating the way it did.” Such a

restraint would have cost, by his estimate, $100 and would have prevented the pipe

separation. While Hatch testified that it would have been prudent for the building

owner to install a thrust restraint, he also agreed that he had no criticisms or

complaints about the building owner as it related to the cause of the water leak.

Factual Sufficiency

CenterPoint pleaded that the 5433 Westheimer defendants negligently

inspected and maintained the plumbing system in the building. At trial, it argued

that, through the defendants’ negligence, the pipe system was left unstable,

susceptible to water hammer from water pressure fluctuation, and ultimately gave

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way to that pressure and ruptured at the coupling. CenterPoint contends that it

provided sufficient evidence of the defendants’ negligence to prevail and the trial

court erred by disregarding the great weight of evidence in its favor when it

awarded a defense verdict.

The 5433 Westheimer defendants respond that no expert criticized the

defendants’ management or maintenance of the property. Further, no expert

testified that a thrust restraint would have prevented the flooding that occurred.

A. Standard of review

In reviewing a factual-sufficiency challenge, we consider and weigh all of

the evidence and set aside a finding only if the evidence is so weak as to make the

finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); McMahon v. Zimmerman, 433 S.W.3d 680, 691 (Tex. App.—Houston

[1st Dist.] 2014, no pet.). When a party attacks the factual sufficiency of an

adverse finding on an issue on which it had the burden of proof at trial, it must

demonstrate that the trial court’s finding is against the great weight and

preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001); Grider v. Mike O’Brien, P.C., 260 S.W.3d 49, 57 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied).

In reviewing a trial court’s conclusions of law, we use a de novo standard

and will uphold the conclusions if the judgment can be sustained on any legal

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theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83

S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). A trial court’s conclusions of law may not be

challenged for factual sufficiency; however, we may review the legal conclusions

drawn from the facts to determine whether the conclusions are correct. BMC

Software, 83 S.W.3d at 794; Holloway–Houston, Inc. v. Gulf Coast Bank & Tr.

Co., 224 S.W.3d 353, 357 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If we

determine that a conclusion of law is erroneous, but the trial court’s judgment was

nevertheless proper, the error does not require reversal. BMC Software, 83 S.W.3d

at 794.

When the trial court acts as factfinder in a bench trial, it is the sole judge of

the credibility of the witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex.

1981); HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111

(Tex. App.—Houston [1st Dist.] 2005, no pet.). It may choose to believe one

witness over another, and a reviewing court may not impose its own opinion to the

contrary. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Because

the factfinder has sole ability to resolve conflicting evidence, we must assume that

it resolved all conflicts in harmony with its verdict. Id. at 820; Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

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B. The trial court’s findings of fact and conclusions of law

The trial court entered findings of fact and conclusions of law. These

included that CenterPoint did not prove the elements of breach or causation. The

trial court included in its conclusions of law a quote from Western Textile Products

Co. of Texas v. Sidran, 262 S.W.2d 942, 943 (Tex. 1953):

When a structure or appliance such as is in general use has uniformly

answered the purposes for which it was designed and used under

every condition supposed to be possible in the business, it cannot in

reason be said that a person has not acted with ordinary prudence and

sagacity in not anticipating an accident which afterwards happens in

the use of the thing notwithstanding it continued substantially in the

same condition all the time.

C. Whether rulings were clearly wrong and manifestly unjust

We must be cognizant of the proper appellate standard for reviewing a

factual-sufficiency challenge. We are not to decide whether we would have ruled

similarly or even if the trial court’s ruling was against the weight of the evidence,

but, instead, whether it was so against the great weight and preponderance of the

evidence that is was “clearly wrong and manifestly unjust.” Cain, 709 S.W.2d at

176; McMahon, 433 S.W.3d at 691.

Several experts testified that they would have recommended a thrust

restraint at this location. While they suggested that it would have been prudent to

include one, none testified that it was negligent or breached a professional standard

not to include the restraint. Nor did any witness testify that owners or property

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managers customarily include thrust restrains or that any directives or guidelines to

owners or property managers recommend thrust restrains. The closest to testifying

in favor of CenterPoint on that issue was Hatch, but he also testified that he had no

criticisms or complaints about the 5433 Westheimer defendants as it related to the

cause of the flooding. Spivey—the plumber who attempted to repair this particular

failure, as opposed to those hired to analyze the case post-failure—testified that he

was not surprised to find that no thrust restraint was being used and that he

commonly sees such configurations without thrust restraints in commercial

buildings. The testimony from Hatch and Spivey indicated that it was not negligent

to fail to install a thrust restraint at this location.

To the extent CenterPoint’s claims were based on the 5433 Westheimer

defendants’ failure to retrofit the piping with a different coupling, Tonda’s

testimony indicated that the coupling used in this particular configuration was

designed to last the life of the pipe. Further, there was no evidence that there had

been any corrosion or leaking at the coupling before the failure occurred. No

witness criticized the building management for failing to replace the coupling, just

as no witness testified that the 5433 Westheimer defendants’ failure to install a

thrust restraint was negligent.

The evidence was even less compelling on the issue of causation. Spivey

stated that use of a thrust restraint may not have restricted the pipe movement that

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occurred. In other words, even if the 5433 Westheimer defendants noticed the

absence of the thrust restraint and installed one, the accident still might have

occurred. His testimony indicated a lack of a causal link between the absence of

the thrust restraint and the coupling separation and flooding. CenterPoint’s

causation argument was also hampered by the testimony of its engineering expert,

Tonda. He said that, while a thrust restraint would have limited the “kind of

motion” that moved these pipes out of alignment, he could state only that it

“possibly” would have prevented the failure.

The trial court, as factfinder, determines the credibility of the witnesses and

the weight to give their testimony. See City of Keller, 168 S.W.3d at 819; Murff,

615 S.W.2d at 700; HTS Servs., Inc., 190 S.W.3d at 111. To the extent the trial

court found these witnesses’ causation testimony credible, we will not second

guess that determination.

We conclude that the trial court’s finding that CenterPoint failed to establish

the necessary elements of breach and causation is not so against the great weight

and preponderance of the evidence as to be clearly wrong or manifestly unjust.

The res ipsa loquitur doctrine does not alter our conclusion. This doctrine

permits a jury to infer negligence under certain, specific circumstances.

Birmingham v. Gulf Oil Corp., 516 S.W.2d 914, 917 (Tex. 1974). The doctrine is

applicable only when (1) the character of the accident is such that it would not

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ordinarily occur in the absence of negligence and (2) the instrumentality causing

the injury is shown to have been under the defendant’s management and control.

Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989); City of Houston v.

Church, 554 S.W.2d 242, 243 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ

ref’d n.r.e.).

The party relying on the doctrine must “‘so reduce’ the likelihood of other

causes that the [factfinder] can reasonably find by a preponderance of the evidence

that the negligence, if any, lies at the defendant’s door.” Turbines, Inc. v. Dardis,

1 S.W.3d 726, 741 (Tex. App.—Amarillo 1999, pet. denied). “Where the evidence

shows that an accident may have happened as a result of two or more causes, and it

is not more reasonably probable that it was due to the negligence of the defendant

than to any other cause, the rule of res ipsa loquitur does not apply.” City of

Houston, 554 S.W.2d at 243–44.

There was evidence that the pipes became misaligned due to fluctuations in

the water pressure entering the building. All of the experts agreed with the premise

that the fluctuation was caused by the city manipulating the flow of water in the

area. Spivey testified that he has seen similar flooding many times during his

career and that a thrust restraint would “not necessarily” have prevented the pipe

movement or flooding that occurred. Based on this evidence, the trial court ruled

that CenterPoint failed to establish that its damages were proximately caused by

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the negligence of the 5433 Westheimer defendants. Implicit in that conclusion is

that the pipe separation and flooding equally could have been the result of a non–

negligent cause. Because CenterPoint’s damages could have equally been caused

by a non-negligent cause, the res ipsa loquitur doctrine does not apply. See id.

(concluding that res ipsa loquitur doctrine did not apply in context of broken water

pipe because break equally could have been caused by natural, unpredictable

ground shifts as by party’s negligence).

We overrule CenterPoint’s first issue challenging the factual sufficiency of

the evidence.

Evidence of Inspection Report

In its second issue, CenterPoint argues that the trial court should have

“excluded any mention of a presale inspection” of the building that allegedly

occurred when the 5433 Westheimer defendants purchased the property in 2006.

CenterPoint does not cite to any legal authority for its contention that the trial court

committed error or that any such error, in a bench trial, would be harmful. See TEX.

R. APP. P. 38.1(i) (requiring brief to contain argument with appropriate citations to

authorities and record). Nor does it provide record citations to establish that it

made an objection and obtained a ruling on that objection. See TEX. R. APP. P.

33.1(a)(1) (requiring complaining party to establish that it made its complaint

known to trial court by timely request, objection, or motion and that trial court

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either ruled on complaint or refused to rule). We overrule CenterPoint’s second

issue.

Legal Standard Applied by Trial Court

In its final issue, CenterPoint argues that the trial court’s citation to Western

Textile in its findings of fact and conclusions of law indicates that the court used an

incorrect legal standard. According to CenterPoint, the trial court erroneously

relied on Western Textile to conclude that the 5433 Westheimer defendants did not

have a duty to inspect the piping, which inspection, presumably, would have

revealed the lack of a thrust restraint in the location that ruptured.

We have already overruled CenterPoint’s factual-sufficiency challenge. It

was within the court’s province, as factfinder, to determine whether the evidence

established a causal link between any negligent act of the 5433 Westheimer

defendants and CenterPoint’s damages. The trial court concluded that CenterPoint

failed to establish this causal link. And the great weight and preponderance of the

evidence was not so against the trial court’s conclusion as to make that finding

clearly wrong or manifestly unjust. Without adequate evidence to establish a causal

link between the absence of a thrust restraint and CenterPoint’s damages, the

characterization of the 5433 Westheimer defendants’ duty with regard to the

absence of a thrust restraint is immaterial. Accordingly, we conclude that this issue

is not necessary for the resolution of this appeal and do not reach it.

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Conclusion

We affirm.

Harvey Brown

Justice

Panel consists of Justices Bland, Brown, and Lloyd.

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