A three-judge panel of the Fifth Circuit seemed hesitant during oral arguments Wednesday to overturn a jury’s verdict awarding a pecan farm more than $650,000 in a flood damage suit brought against the operators of a sand and gravel mine.
Just east of Austin, Martin Marietta Materials and TXI Operations operate a sand and gravel mine on the banks of the Colorado River. Their neighbor across the river, on the northern bank, is Good River Farms, a 377-acre pecan farm containing about 8,000 trees that has been owned and operated by the Wimberly family since 1959. This lawsuit was spawned from a major rain event — described as a 120-year flood — that hit the area on Oct. 30, 2015.
A jury agreed with Good River, finding at the end of a three-day trial that MMM and TXI had diverted or impounded the natural flow of surface waters in a manner that caused Good River’s damages — including the destruction of a storage building holding harvested pecans.
But based on the law and physics, the case should have never gotten to a jury, Ken Carroll of Carrington, Coleman, Sloman & Blumenthal, who represents the mining companies, told the panel during oral arguments. Carroll said the water from MMM and TXI’s property would have to “magically crossed over the raging Colorado River to land on other side to flood the pecan farm.”
Judge Dana M. Douglas was the first judge on the panel to speak.
“It’s a jury decision,” she said. “There’s a lot for us to overcome to give you the relief you’re looking for.”
Carroll agreed but said this case presents one of the rare instances where overturning a jury verdict is appropriate.
“There are problems with this judgment, but one fundamental threshold issue really stands out,” he said. “And if you pull that thread, the entire fabric of plaintiff’s case unravels.”
He argued Good River failed to prove that water allegedly impounded on MMM and TXI property “made it across the river, during flood stage,” and failed to disprove that water from the Colorado River itself flooded the pecan farm.
Judge Douglas asked about evidence in the record that a significant amount of sand and gravel was left on the pecan farm’s acreage after floodwaters receded. Carroll said while there was testimony about that, “there is no way to differentiate the water.”
“It’s not like the water on our side was red and the other side was blue,” he said.
In rebuttal time, Carroll again addressed the testimony about the sand and gravel on the pecan farm, saying “the gravel didn’t have Martin Marietta logos on it” and that there was no testimony differentiating that debris from debris that may have come from the river bed.
Judge Douglas also asked Travis J. Phillips of Austin, arguing for Good River Farms, about the testimony about the sand and gravel on his client’s property.
“Mr. Turner Wimberly testified about that,” Phillips said. “He said you could trace where the flood had been based on the debris field of gravel.”
That debris field showed the water flowing onto Good River’s property was coming northward and not from the normal eastward flow of the Colorado River.
Phillips explained that jurors had also heard testimony from Wimberly that MMM “had piled dirt really high” to the point that none of the property behind that embankment could be seen. But the day after the flood, more of MMM’s property was visible, he testified.
Good River alleged the water impounded behind that embankment is what flooded its property.
Good River filed suit in state court in November 2017, and TXI and MMM soon removed it to federal court, where it was assigned to U.S. District Judge Robert Pitman.
The jury trial started Aug. 22, 2022, and ended two days later, according to court records. The panel determined MMM and TXI had not intentionally or negligently created a private nuisance but did find those entities had diverted or impounded the natural flow of surface waters in a manner that caused Good River’s damages.
The jury found MMM and TXI 100 percent liable for the damages caused to the pecan farm and awarded the farm $659,882 in damages.
MMM and TXI moved for judgment in their favor as a matter of law, which Judge Pitman denied in April 2023.
MMM and TXI filed notice of appeal with the Fifth Circuit in May.
“The presence of the Colorado [River] between the parties’ properties is as much a legal barrier to Good River’s claims as it is a physical barrier between the parties’ properties,” MMM told the court in briefing.
Judges Jerry E. Smith and Catharina Haynes also sat on the panel.
Martin Marietta and TXI are also represented by D. Lance Currie and Debrán O’Neil of Carrington, Coleman, Sloman & Blumenthal.
The case number is 23-50330.