Warwick Towers Council of Co-Owners v. Park Warwick, LP
(Tex.App.- Houston [14th Dist.] Oct. 8, 2009)(Boyce) (water damage, subrogation claim)  
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by
Justice Boyce      
Before Justices Anderson, Guzman and Boyce  
14-05-00254-CV  Warwick Towers Council of Co-Owners, by and through St. Paul Fire & Marine
Insurance Company v. Park Warwick, L.P., Park Warwick Investments, L.L.C., and Park Hotel
Investments, L.L.C.    
Appeal from
113th District Court of Harris County

O P I N I O N   ON   R E M A N D

Warwick Towers Council of Co-Owners (the “Council"), acting by and through St. Paul Fire &
Marine Insurance Company, appeals from a summary judgment granted in favor of Park Warwick L.
P., Park Warwick Investments, L.L.C., and Park Hotel Investments, L.L.C (collectively, the “Hotel
Appellees").  

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Background

The Warwick Hotel and the Warwick Towers condominium are located across Fannin Street from
one another in Houston.  Both buildings were damaged in June 2001 when heavy rains from
Tropical Storm Allison inundated the city.

St. Paul contends the hotel had a flood barrier system in place in June 2001 to prevent water at
street level from pouring down a loading dock ramp into the hotel's basement.  St. Paul alleges the
hotel failed to use this barrier during the storm, which allowed water to enter the hotel's basement;
travel through a connecting tunnel that runs under Fannin Street; reach the condominium's
basement; and cause extensive damage.  See Warwick Towers Council of Co-Owners v. Park
Warwick, L.P., 244 S.W.3d 838 (Tex. 2008) (per curiam).  The Hotel Appellees dispute whether
such a barrier existed in June 2001.

The Council and others sued the Hotel Appellees and asserted claims for negligence, nuisance,
and trespass based on water damage to the condominium from Tropical Storm Allison.  St. Paul
also asserted a subrogation claim against the Hotel Appellees based on payments it made as the
condominium's insurer for water damage in connection with the storm.  See generally Ortiz v.
Great S. Fire and Cas. Ins. Co., 597 S.W.2d 342, 344 (Tex. 1980).  St. Paul's subrogation claim
was predicated on causes of action against the Hotel Appellees for negligence, nuisance, and
trespass.

The Hotel Appellees filed a motion for partial summary judgment.  Among other grounds, they
asserted that St. Paul's claim is foreclosed by a waiver of subrogation contained in a 1980
easement agreement.  The trial court signed an interlocutory order in May 2004 granting partial
summary judgment in favor of the Hotel Appellees on St. Paul's subrogation claim, and on the
Council's nuisance and trespass claims.  The Council's negligence claim remained unresolved.

In February 2005, the trial court signed an order dismissing all causes of action asserted by the
Council and other plaintiffs against the Hotel Appellees with prejudice pursuant to a settlement.  
Dismissal of the Council's causes of action did not extinguish St. Paul's subrogation claim because
an insurer becomes a pro tanto owner of the insured's cause of action when the insurer pays part
of the insured's loss.  See  Prudential Prop. & Cas. Co. v. Dow Chevrolet-Olds, Inc., 10 S.W.3d 97,
102-03 (Tex. App.- Texarkana 1999, pet. dism'd); see also In re Romero, 956 S.W.2d 659, 661
(Tex. App.- San Antonio 1997, orig. proceeding) (from point of payment forward, viability of
insurer's cause of action does not rise and fall with fate of its insured's cause of action) (citing
Thoreson v. Thompson, 431 S.W.2d 341, 347 (Tex. 1968)); Cox v. Realty Dev. Corp., 748 S.W.2d
492, 494 (Tex. App.- Dallas 1988, no writ) (dismissal of insured's cause of action did not
extinguish insurer's action).

The February 2005 order caused the interlocutory summary judgment on St. Paul's subrogation
claim to become final and appealable.  See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508,
510 (Tex. 1995).[1]  St. Paul filed a notice of appeal in its insured's name.  The notice of appeal
did not name St. Paul.

This court dismissed St. Paul's appeal, concluding that a notice of appeal filed solely in the
insured's name was ineffective to perfect an appeal as to that portion of the trial court's final
judgment addressing St. Paul's separate subrogation claim.  Warwick Towers Council of Co-
Owners v. Park Warwick, L.P., 218 S.W.3d 149 (Tex. App.- Houston [14th Dist.] 2007), rev'd, 244
S.W.3d 838 (Tex. 2008) (per curiam).  The Texas Supreme Court reversed this court's judgment
and remanded, holding that St. Paul made a bona fide attempt to appeal from the dismissal of its
subrogation claim; should have been allowed to amend the notice of appeal to name itself as the
appellant; and should have its appeal decided on the merits.  Warwick Towers Council of Co-
Owners, 244 S.W.3d at 839-40.[2]

We now address the merits of St. Paul's appeal challenging the trial court's grant of summary
judgment against St. Paul on its subrogation claim arising in connection with water damage to the
Warwick Towers condominium during Tropical Storm Allison.

Analysis

St. Paul raises six issues on appeal challenging the trial court's order granting summary
judgment.  The first five issues assail the grant of summary judgment on all causes of action
asserted by St. Paul as subrogee based on a waiver of subrogation contained in a 1980 easement
agreement.  The sixth issue assails the grant of summary judgment on the merits of the nuisance
and trespass causes of action.

The Hotel Appellees sought summary judgment under the traditional summary judgment standard.  
See Tex. R. Civ. P. 166a(c).  They did not rely upon Rule 166a(i) or file a hybrid motion invoking
both Rules 166a(c) and 166a(i).  They attached the following documents to their summary
judgment motion:  (1) an affidavit signed by Ron Hoyl, the vice president of appellee Park Hotel
Investments, LLC: (2) the 1980 easement agreement; (3) a 1983 amendment to the 1980
easement agreement; and (4) the Warwick Towers Declaration of Condominium.

A defendant who seeks a traditional summary judgment under Rule 166a(c) must demonstrate
that the plaintiff has no cause of action as a matter of law.  E.g., Cullins v. Foster, 171 S.W.3d
521, 530 (Tex. App.- Houston [14th Dist.] 2005, pet. denied).  A traditional summary judgment is
proper when the defendant negates at least one element of each of the plaintiff's theories of
recovery, or pleads and conclusively establishes each element of an affirmative defense.  Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  When the defendant has carried its
summary judgment burden, the burden shifts to the nonmovant to raise a material fact issue
precluding summary judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d
905, 907 (Tex. 1995).  In reviewing a summary judgment, we take as true all evidence favorable to
the nonmovant and indulge every reasonable inference, and resolve any doubts in the
nonmovant's favor.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

I.         Waiver of Subrogation Under the 1980 Easement Agreement

St. Paul argues in its first issue that the 1980 easement agreement does not foreclose a
subrogation claim against the Hotel Appellees.  To address the merits of this argument, it is
necessary to discuss certain real estate transactions undertaken in connection with construction
of the Warwick Towers condominium in the early 1980s.

A.        The 1980 Easement Agreement

The Warwick Hotel was built in 1925; its ownership has changed multiple times over the years.  
The Warwick Towers condominium was built in 1982 on land formerly owned by the John W.
Mecom Company.

In 1980, the condominium site was owned by Warwick Towers, Inc.  At that time, the John W.
Mecom Company owned the land on which the Warwick Hotel and the hotel garage were located.  
The hotel garage C located across Fannin Street from the hotel and next to the condominium site
C had two underground levels and three above ground levels.  Warwick Towers, Inc. planned to
add two more parking levels and a roof deck on top of the existing Warwick Hotel garage for the
condominium's use.

In anticipation of the condominium's construction, an easement agreement was signed on
November 7, 1980 by the John W. Mecom Company as "Grantor" and Warwick Towers, Inc. as
"Grantee."  The 1980 agreement granted certain easements and collateral rights as to both the
Mecom land C upon which the hotel garage was located C and the adjacent property owned by
Warwick Towers, Inc. C upon which the condominium was to be built.  Among other things, the
John W. Mecom Company granted to Warwick Towers, Inc. an exclusive easement for air space
above the Mecom land to accommodate the garage addition; a right of support for construction of
additional garage levels; and a non-exclusive easement and right of way covering access to
portions of the hotel garage and the Mecom land.

A First Amendment to Easement Agreement was executed on February 1, 1983 by Houston
International Hotels, Inc. C as successor to "Grantor" Mecom C and Warwick Towers Venture C as
successor to "Grantee" Warwick Towers, Inc.  The 1983 amendment was made retroactively
effective as of November 7, 1980.  Among other things, the 1983 amendment made certain
changes to the easements and rights granted under the 1980 easement agreement.

The Warwick Hotel's ownership is described in Hoyl's affidavit.  Hoyl states that appellee Park
Warwick, L.P. owned the hotel in 2004.  This limited partnership was owned in 2004 by another
appellee, Park Warwick Investments, LLC, as general partner of the limited partnership.  The
limited partnership's "managing member" in 2004 was appellee Park Hotel Investments, LLC.  
Although Hoyl's affidavit describes the hotel's ownership as of 2004, his affidavit is silent regarding
ownership of the land on which the hotel and garage are located.  Hoyl's affidavit also is silent
regarding changes in the hotel's ownership over time.

B.        Waiver of Subrogation

The Hotel Appellees moved for summary judgment based on a waiver of subrogation clause in an
indemnity paragraph in the 1980 easement agreement.

The indemnity paragraph states as follows:

8.1  Grantee hereby agrees to indemnify and save harmless Grantor from all loss, cost, expense
and liability arising from claims in connection with the construction, use or occupancy of the W/T
Addition, the Air Space Easement, the W/T Equipment Easement, the W/T Utility Easement and all
other rights and easements granted to Grantee hereunder, and Grantor hereby agrees to
indemnify and save harmless Grantee from all loss, cost, expense and liability arising from claims
in connection with the construction, use or occupancy of the Reserved Area and all easements
granted to Grantor hereunder. Grantor and Grantee, in [sic] behalf of their insurors [sic], do
hereby waive all rights of subrogation which such insurors [sic] may become entitled to as against
Grantee, or Grantor, as the case may be.

(emphasis added).  

The Hotel Appellees also rely on the following clauses:

10.5  It is intended and shall be understood that (i) each and every right, easement, benefit or
interest herein granted and conveyed to or vested in Grantee shall be appurtenant to Grantee's
interest in the W/T Land and shall extend to each future owner thereof, and (ii) each and every
right, easement, benefit or interest herein reserved, granted and conveyed to or vested in Grantor
shall be appurtenant to Grantor's interest in the Mecom Land and shall extend to each future
owner thereof.

*     *     *

19.1  The terms and provisions hereof shall be deemed to be covenants running with the Mecom
Land and the W/T Land, and shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, as owners of such properties.

Under these provisions, the right to enforce the waiver of subrogation is tied to ownership of the
grantor's interest in the “Mecom Land" C not to ownership of “The Warwick, a hotel in Houston,
Texas."

St. Paul argued in its summary judgment response that material issues of disputed fact exist
regarding (1) whether St. Paul waived any rights against the Hotel Appellees; (2) whether the
waiver applies to St. Paul; and (3) the waiver's meaning and reach.  On appeal, St. Paul argues
that the Hotel Appellees proffered no evidence to establish that they (1) acquired the grantor's
interest in the “Mecom Land;" or (2) are successors or assigns of the grantor's right to enforce the
waiver of subrogation under the 1980 easement agreement.

The Hotel Appellees contend that St. Paul waived its argument regarding absent proof by failing to
raise this argument in its summary judgment response.  See Tex. R. Civ. P. 166a(c).  In
addressing the Hotel Appellees' waiver argument, we focus on the specific type of summary
judgment motion that was filed.

The Hotel Appellees filed a traditional motion for summary judgment invoking only Rule 166a(c).  A
nonmovant has no burden to respond to a traditional summary judgment motion unless the
movant conclusively establishes its cause of action or defense.  See, e.g.,  M.D. Anderson Hosp.
v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).  Because traditional summary judgments
must stand on their own merits, the nonmovant can argue on appeal that the movant's proof is
insufficient as a matter of law to support summary judgment even if the nonmovant did not
respond in the trial court.  Id. (citing Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.
1999), and City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).  
Therefore, we will consider St. Paul's argument that the Hotel Appellees' summary judgment
evidence is insufficient as a matter of law to establish that they acquired the grantor's interest in
the “Mecom Land" and can enforce the waiver of subrogation.  See id.

A court applies basic principles of contract construction and interpretation when considering an
express easement's terms.  Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.
2002).  When the grant's terms are not specifically defined, we must give them their plain,
ordinary, and generally accepted meaning.  Id. at 701.  Pursuant to the plain language of
paragraphs 10.5 and 19.1, the grantor's rights under the waiver of subrogation clause pass to
“future owner[s]" of “Grantor's interest in the Mecom Land."  The Hotel Appellees do not argue
otherwise.  Instead, they contend that two affidavits signed by Ron Hoyl adequately identify them
as owners of “Grantor's interest in the Mecom Land."

Hoyl's first affidavit contains the following: AI have personal knowledge of the ownership of The
Warwick, a hotel in Houston, Texas.  The Warwick is owned by Park Warwick, L.P. which in turn is
owned by Park Warwick Investments, LLC, its general partner and I am an officer of its managing
member, Park Hotel Investments, LLC."  At most, Hoyl's first affidavit establishes that “Park
Warwick, L.P." owns “The Warwick, a hotel in Houston, Texas."   Improvements and land are
separate estates or interests under Texas property law.  See Travis Cent. Appraisal Dist. v.
Signature Flight Support Corp., 140 S.W.3d 833, 837 (Tex. App.- Austin 2004, no pet.); Franz v.
Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.- Houston [1st Dist.] 2000, no pet.).  Hoyl's
affidavit does not address ownership of the grantor's interest in the AMecom Land."  Therefore,
Hoyl's first affidavit does not establish that the entity called “Park Warwick, L.P." or the other two
Hotel Appellees own the “Mecom Land" or succeeded to Mecom's rights to enforce the waiver of
subrogation.

In his second affidavit, Hoyl states that he is the appellees' records custodian and recites the
business records litany under Texas Rule of Evidence 803(6).  The second affidavit says nothing
about ownership of the Mecom land or successor status under the 1980 easement agreement.

On this record, the Hotel Appellees have not established their ownership of the “Mecom Land" and
have not established any basis upon which they can enforce waiver of subrogation rights as the
grantor's successors under the 1980 easement agreement.  See Barnes v. Wendy's Int'l, Inc., 857
S.W.2d 728, 730 (Tex. App.- Houston [14th Dist.] 1993, no writ) (contract confers rights and duties
only on actual parties to the contract and courts should not construe a contract as having been
made for benefit of third parties unless it clearly appears contracting parties intended third-party
to benefit).  The summary judgment proof is insufficient as a matter of law to establish that the
waiver of subrogation clause applies here to foreclose St. Paul's subrogation claim against these
appellees.

We sustain St. Paul's first issue and remand for further proceedings not inconsistent with this
opinion.  We do not address St. Paul's second through fifth issues, which address alternative
arguments for reversing the partial summary judgment on St. Paul's subrogation claim.

II.        Nuisance and Trespass

In its sixth issue, St. Paul contends the trial court erred by granting summary judgment in favor of
the Hotel Appellees on St. Paul's nuisance and trespass causes of action.

Although the Hotel Appellees told the trial court they were submitting their motion “under the
traditional summary judgment standard," they attached no evidence addressing these causes of
action.  Instead, the Hotel Appellees requested summary judgment on the pleadings with respect
to the nuisance and trespass causes of action.

“A summary judgment should not be based on a pleading deficiency that could be cured by
amendment."  In re B.I.V., 870 S.W.2d 12, 13-14 (Tex. 1994) (per curiam); see also Massey v.
Armco Steel Co. 652 S.W.2d 932, 934 (Tex. 1983).  That is the role of special exceptions, which
provide the nonmovant an opportunity to amend before dismissal.  E.g., Centennial Ins. Co. v.
Commerical Union Ins. Cos., 803 S.W.2d 479, 482-83 (Tex. App.- Houston [14th Dist.] 1991, no
writ); see also Tex. R. Civ. P. 90, 91.  A nonmovant waives a complaint that summary judgment
improperly was granted on the pleadings by failing to raise it.  San Jacinto River Auth. v. Duke,
783 S.W.2d 209, 210 (Tex. 1990);  Ross v. Arkwright Mut. Ins. Co., 933 S.W.2d 302, 305 (Tex.
App.- Houston [14th Dist.] 1996, writ denied).

St. Paul did not object to the Hotel Appellees' request for summary judgment on the pleadings with
respect to the nuisance and trespass causes of action, and it did not request an opportunity to
amend.  Therefore, we review the propriety of summary judgment based on the nonmovant's
pleadings.  See Sw. Invs. Diversified, Inc. v. Estate of Mieszkuc, 171 S.W.3d 461, 470 (Tex. App.-
Houston [14th Dist.] 2005, no pet.).  To determine whether a cause of action exists under the
circumstances pleaded, we assume that all facts alleged by the nonmovant are true and indulge
all reasonable inferences in the light most favorable to the nonmovant.  Id.  We do not assume
that any legal conclusions stated in the pleadings are true.  Id. at 470-71.

A.        Nuisance

A nuisance is a condition that substantially interferes with the use and enjoyment of land by
causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to
use and enjoy it.  Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004).  
“Nuisance" refers to a kind of damage done, rather than to any particular type of conduct.  City of
Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997) (citing Prosser, Nuisance Without Fault, 20 Tex.
L. Rev. 399, 416-17 (1942)).  An actionable nuisance may arise from an invasion of another's
interests attributable to activity that is intentional, negligent, or abnormal and out of place in its
surroundings.  Hicks v. Humble Oil & Refining Co., 970 S.W.2d 90, 96 (Tex. App.- Houston [14th
Dist.] 1998, pet. denied); Likes, 962 S.W.2d at 503.

The original petition alleged damage to the condominium resulting from a single flooding incident
on June 9, 2001.  St. Paul incorporated its negligence allegations into its nuisance claim, and also
specifically alleged that the Hotel Appellees failed

to maintain, use, operate, install and/or erect and/or safely and properly maintain, use, operate,
install and/or erect its flood gate, barrier and/or device and/or flood logs at the driveway entrance
to the loading dock at The Warwick Hotel to protect Plaintiffs' property, and thus, caused and
allowed water to enter the hotel, to flood the hotel, to cross the hotel/towers tunnel beneath
Fannin Street, and to enter and flood the Warwick Towers.

As they did in their summary judgment motion, the Hotel Appellees argue on appeal that St. Paul
cannot recover under a nuisance theory because the alleged damages resulted from a discrete
flooding incident rather than a continuing or repetitive event.  The Hotel Appellees also argued in
the trial court that a nuisance claim is foreclosed because the damage did not result from a
condition inherent in the Hotel Appellees' property independent of any negligent or improper use
of that property.  The Hotel Appellees do not reassert the inherent condition argument on appeal;
they argue only that “a single, isolated event cannot support a claim for nuisance."  St. Paul
contends that a nuisance action against a private entity in Texas does not require proof of a
continuing or repetitive occurrence.  St. Paul also proffered an affidavit from James Dorn, a
licensed professional civil engineer, as part of its summary judgment response.  Among other
things, Dorn's affidavit states as follows: “The June 9, 2009 incident was the third flood incident at
the Warwick Hotel where water entered the hotel from the loading dock entrance.  Previous water
intrusion incidents occurred at the loading dock entrance to the hotel in 1974 and 1994 according
to the Warwick Hotel's general manager."  The Hotel Appellees did not object to this statement
below.

Asking whether “a single, isolated event" can support “a claim for nuisance" begs the following
question:  What type of “claim for nuisance" is being asserted?  The issue is bound up in a larger
question regarding proper characterization of the asserted nuisance as “temporary" or
“permanent."  The Texas Supreme Court addressed the mutually exclusive distinction between
temporary and permanent nuisances at length in Schneider National Carriers, Inc., 147 S.W.3d at
275B83.  In so doing, the supreme court discussed the concept of “frequency and constancy" as it
relates to the viability of particular nuisance claims under particular circumstances.  Id. at 283.

The supreme court grounded its analysis on “the substantial consequences that flow from
designating a nuisance as temporary or permanent . . . ."  Id. at 276.  The supreme court has
recognized three consequences that Aresult from categorizing a nuisance as permanent or
temporary: (1) whether damages are available for future or only past injuries; (2) whether one or a
series of suits is required; and (3) whether claims accrue (and thus limitations begins) with the first
or each subsequent injury."  Id. at 275.

Addressing the first consequence, the supreme court noted that a landowner asserting a claim for
temporary nuisance may recover only damages that already have accrued.  Id. at 276.  
“Conversely, if a nuisance is permanent, the owner may recover lost market value . . . ."  Id.  “An
isolated occurrence may result in temporary loss of use and enjoyment, but is unlikely to result in
permanent loss of market value unless the damage cannot be remedied or is likely to occur
again."  Id. (emphasis added).  A[I]f a nuisance is likely to create flooding only during a hurricane,
the infrequency and unpredictability of such a disaster may make future losses difficult to
evaluate, thus requiring a landowner to await actual damage before filing suit."  Id. at 277.

Turning to the second consequence, the supreme court stated: “[I]f future harm is anyone's
guess, the nuisance is a temporary one and a claimant must bring a series of suits involving the
same parties, pleadings, and issues as each injury occurs."  Id. at 278.  “Requiring separate suits
for separate injuries is feasible if injury occurs once a decade."  Id.

As for the third consequence, the supreme court noted that the “general rules for limitations place
the relative terms used to describe temporary and permanent nuisances in context."  Id. at 280.  “If
noisome conditions occur only once, the nuisance will normally be temporary because it creates
substantial interference with property on that occasion, but not on any other."  Id. (original
emphasis).

Schneider National Carriers, Inc. teaches that a temporary nuisance claim can arise in appropriate
circumstances from “the first . . . injury," or from “an isolated occurrence," or from “noisome
conditions [that] occur only once."  Id. at 277, 280.  A nuisance claim also can arise in other
circumstances.  The consequence of attempting to predicate a particular nuisance claim upon “the
first . . . injury" or an “isolated occurrence" or a “noisome condition[]" that “occur[s] only once" is
not necessarily automatic dismissal.  Rather, the consequence is felt in the direction of
subsequent litigation shaped by rules governing the measure of damages, the number of required
suits, and accrual.  See id. at 275-83.

Determining whether the appropriate circumstances exist here to allow a nuisance claim requires
speculation at this stage of the proceedings.  We are presented with a document styled as a
“traditional motion for summary judgment" seeking dismissal on the pleadings of a broadly pleaded
claim for “nuisance" to which no special exceptions were filed.  The circumstances present in this
case may accommodate a nuisance claim, or they may not.  The answer to that question will
depend in part on whether the claim is characterized as a temporary or permanent nuisance; how
the claim is developed; and how it is presented on the facts.  At this stage we cannot say that such
a claim is foreclosed as a matter of law under the governing standard of review.

The Hotel Appellees cite a handful of cases predating Schneider National Carriers, Inc. for the
proposition that a single, temporary flooding incident cannot support a nuisance claim of any kind.  
See Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex. App.- Beaumont 1998, pet.
denied); Sutton Bldg. Ltd. v. Travis County Water Dist. 10, No. 03-02-00659-CV, 2004 WL
1404045, at *5 (Tex. App.- Austin June 24, 2004, no pet.) (mem. op.); Maverick County Water and
Improvement Dist. No. 1 v. Reyes, No. 04-03-00421-CV, 2003 WL 22900914, at *3 (Tex. App.-
San Antonio Dec. 10, 2003, no pet.) (mem. op.).

We ground our analysis on Schneider National Carriers, Inc. rather than these cases  We do so
not only because Schneider National Carriers, Inc is a subsequent pronouncement from the Texas
Supreme Court, but also because the discussion in Wickham, Sutton, and Reyes arose in the
context of sovereign immunity analysis that does not apply here.         

“Governmental entities may be liable for nuisances created or maintained in the course of non-
negligent performance of governmental functions."  Wickham, 979 S.W.2d at 880 (citing Likes,
962 S.W.2d at 503-04).  “As such, sovereign immunity is not a defense to a claim on non-
negligent nuisance."  Id. (citing Shade v. City of Dallas, 819 S.W.2d 578, 581 (Tex. App.- Dallas
1991, no writ)).  These cases are inapposite because they discussed frequency of occurrence in
the course of determining whether there was anything inherent in the nuisance-causing object
beyond the object's alleged improper or negligent use.  See Wickham, 979 S.W.2d at 880; Sutton,
2004 WL 1404045, at *5; Reyes, 2003 WL 22900914, at *3.  That inquiry differs from the one we
address today.

Accordingly, we sustain St. Paul's sixth issue with respect to the nuisance claim.

B.      Trespass

Trespass to real property requires a showing of an unauthorized physical entry onto the plaintiff's
property by some person or thing.  Tex. Woman's Univ. v. Methodist Hosp., 221 S.W.3d 267, 286
(Tex. App.- Houston[1st Dist.] 2006, no pet.); Ronald Holland's A-Plus Transmissions v. E-Z Mart
Stores, Inc., 184 S.W.3d 749, 758 (Tex. App.- San Antonio 2005, no pet.).  The entry need not be
in person but may be made by causing or permitting a thing to cross the boundary of a property.  
Id.  Trespass usually is regarded as an intentional tort in the sense that it involves an intent to
commit an act that violates a property right, or would be practically certain to have that effect,
although the actor may not know the act he intends to commit is such a violation.  Harris County v.
Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex. App.- Houston [14th Dist.] 2001, no pet.).

St. Paul incorporated its negligence and nuisance allegations into its trespass claim and also
asserted as follows:

Defendant PARK WARWICK's actions, inactions and/or omissions interfered with and invaded
Plaintiffs' property and proximately caused Plaintiffs' damages, as described . . . above.  Without
Plaintiffs' authorization or permission, PARK WARWICK invaded and/or caused to be invaded
Plaintiffs' respective properties by failing and/or refusing to maintain, use, operate, install and/or
erect and/or safely and properly maintain, use, operate, install and/or erect its flood gate, barrier
and/or device and/or flood logs at the driveway entrance to the loading dock at The Warwick
Hotel, and thus, caused and allowed water to enter the hotel, to flood the hotel, to cross the
hotel/towers tunnel beneath Fannin Street, and to enter and flood the Warwick Towers.  PARK
WARWICK knew or should have known that its actions, inactions and/or omissions would cause
water to flood and invade Plaintiffs' property.  PARK WARWICK [sic] acts and/or omissions
proximately caused damage to Plaintiffs as described . . . above.

St. Paul's allegations against the Hotel Appellees track those at issue in Texas Woman's
University, another case arising in connection with Tropical Storm Allison.  See Tex. Woman's
Univ., 221 S.W.3d at 285-86.  The strong similarity between these two cases warrants further
discussion.

Like the Warwick Towers, Texas Woman's University suffered damage during Tropical Storm
Allison when water entered its facilities in the Texas Medical Center through a tunnel.  Id.  at 270-
76.  The university sued Methodist Hospital and asserted a claim for trespass, among other
causes of action, in connection with the storm.  Id.  The university predicated its suit in part on
allegations that (1) Methodist “owned 'flood logs . . . to block the entry of water into [Methodist] in
the event that rain run-off water levels rose in front of the driveways and other entrances to
[Methodist];'" (2) Methodist failed to install the flood logs during the storm; and (3) as a result,
A>surface run-off rain water entered [Methodist] . . . , was allowed to exit Methodist, traveled and
overflowed the [t]unnel, and overflowed and flooded the TWU Campus.'"  Id. at 270-71.

The trial court granted summary judgment in favor of Methodist Hospital on all causes of action
asserted by the university.  The First Court of Appeals affirmed in part and reversed in part.  As
relevant here, the appellate court affirmed summary judgment in favor of Methodist Hospital on the
university's trespass claim because the circumstances did not involve an intent “to commit a
trespass that violated TWU's property rights or would be practically certain to violate TWU's
property rights."  Id. at 286.  “TWU's allegations concerning Methodist's failure to act are
necessarily based on Methodist's negligence in failing to take proper flood prevention procedures,
not on an intentional act."  Id.

These words apply with equal force to St. Paul's trespass claim against the Hotel Appellees
predicated on similar allegations involving an asserted failure to use a flood barrier.  The trespass
claim incorporates negligence and nuisance allegations regarding the Hotel Appellees' asserted
failure to act; it is not predicated on a contention that the Hotel Appellees committed an intentional
act that violates a property right or would be practically certain to have that effect.  See id.  
Therefore, St. Paul's trespass claim fails as a matter of law.  See Mountain States Tel. & Tel. Co.
v. Vowell Constr. Co., 161 Tex. 432, 435-36, 341 S.W.2d 148, 150 (1960) (viable trespass claim
predicated on road scraper being “deliberately and intentionally used in making a cut to the
designated subgrade," thereby severing a cable); see also Cypress Forest Pub. Util. Dist., 50 S.W.
3d at 554; Jamison v. Nat'l Loan Investors, L.P., 4 S.W.3d 465, 469 n.2 (Tex. App.- Houston [1st
Dist.] 1999, pet. denied); Malouf v. Dallas Athletic Country Club, 837 S.W.2d 674, 676 (Tex. App.-
Dallas 1992, writ dism'd w.o.j.); Gen. Tel. Co. v. Bi-Co Pavers, Inc., 514 S.W.2d 168, 170 (Tex.
Civ. App.- Dallas 1974, no writ);  First City Nat'l Bank v. Japhet, 390 S.W.2d 70, 74-5 (Tex. Civ.
App.- Houston 1965, writ dism'd).  The cases upon which St. Paul relies likewise address
distinguishable circumstances involving the intentional commission of an affirmative act.  See  
Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 565-66 (Tex. App.- Texarkana 2000, pet. denied)
(dumping of noxious chemicals and chicken waste, which rainwater then carried onto plaintiffs'
land); Schronk v. Gilliam, 380 S.W.2d 743, 744 (Tex. Civ. App.- Waco 1964, no writ) (aerial
spraying of substances on plaintiffs' crops and pasture when substances were intended for use on
other land); McDaniel Bros. v. Wilson, 70 S.W.2d 618, 620 (Tex. Civ. App.- 1934, writ ref'd)
(excavating land on own lot, which resulted in retaining wall failure after heavy rain and damage to
plaintiffs' building on adjoining lot).

The trial court correctly granted partial summary judgment in favor of the Hotel Appellees on St.
Paul's trespass claim.  We overrule St. Paul's sixth issue with respect to the trespass claim.

Conclusion

We affirm that portion of the judgment dismissing the trespass cause of action.  We reverse that
portion of the judgment dismissing the nuisance claim and St. Paul's subrogation claim, and
remand the cause for further proceedings consistent with this opinion.

/s/        
William J. Boyce

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.    

[1]  The Hotel Appellees did not seek summary judgment on the merits of the negligence cause of action, or on an
alleged Water Code violation included in an amended petition filed by the Council in October 2004.  The summary
judgment nonetheless became final as to St. Paul when  the Council and the other plaintiffs dismissed their
claims in February 2005 because the trial court's May 2004 order encompassed summary judgment on grounds
that the 1980 easement agreement's waiver of subrogation forecloses all causes of action St. Paul might pursue
as subrogee.  We do not address the merits of any issues other than subrogation, nuisance, and trespass in this
opinion.

[2]  St. Paul filed a motion in this court after the panel opinion was issued seeking to substitute St. Paul for the
Council pursuant to Texas Rule of Appellate Procedure 7.1(b).  This court denied the motion.  The Texas Supreme
Court held that this court erred by not allowing St. Paul to amend its notice of appeal and remanded for further
consideration.  Warwick Towers Council of Co-Owners, 244 S.W.3d at 840.  Accordingly, we construe St. Paul's
substitution motion as a request to amend the notice of appeal under Texas Rule of Appellate Procedure 25.1(f) to
name St. Paul Fire & Marine Insurance Company as the appellant.  We grant the motion as construed and direct
St. Paul to file an amended notice of appeal in this court within 10 days of the date on which this court's judgment
issues.