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Contreras v. Bennett

A jury found that the appellant wrongfully diverted the natural flow of surface water in violation of Texas Water Code §11.086(a). The plaintiffs were awarded damages for both the cost of repairs and the diminution in value of the property. An award of diminution damages requires evidence supporting the value of the home if it were listed for sale in a post-flood, post-repaired state. El Paso Court of Appeals, No. 08-09-00321-CV, 12-22-2011.

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OPINION

Between July 27 and August 7, 2006, more than fifteen inches of rain engulfed the City of El Paso, an amount nearly twice the annual average for the desert city.*fn1 The deluge sent mud and rocks cascading into some parts of the city, destroying as many as 300 homes and causing an estimated $100 million in damage. Against this back drop, we consider here a claim for damages to a residence arising from violations of the Texas Water Code. A jury found that Arturo Contreras wrongfully diverted surface water and awarded James and Hilda Bennett $43,000 in cost of repair damages and $25,000 in diminution of value damages. The trial court entered judgment for the Bennetts and ordered Contreras to pay $68,000 in actual damages plus prejudgment interest and court costs. On appeal, Contreras complains the evidence is legally or factually insufficient and that the trial court awarded a double recovery. We affirm in part and reverse in part.

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