Victoria culvert case may head to Texas Supreme Court

Story by Jessica?Priest

Originally published July 31, 2013 at 11:39 P.M., updated July 31, 2013 at 11:45 P.M.

A Victoria man's drain dispute with the city is not over.

Keith Redburn's attorney, Norman Jones, filed a petition with the Texas Supreme Court on July 17.

He wants City Manager Charmelle Garrett and Public Works Director Lynn Short to be re-added as parties to the lawsuit questioning who should be held responsible for the damage left behind by a culvert.

Redburn plugged up the culvert with cement on his property in the 900 block of Stayton Avenue after attempts to get the matter resolved failed. He argued unsuccessfully in a Victoria district court in 2011 that the culvert spewed debris.

The city, meanwhile, contended that when Redburn bought the property "as is" in 2004, he agreed to the conditions its previous owner operated under in the 1940s. The previous owner wanted to fence the culvert in.

In May, justices with the Thirteenth Court of Appeals reversed and remanded the case back to the lower court as well as dismissed claims against Garrett and Short, leaving the city of Victoria as the lone defendant.

Jones said the justices wrongly based the decision to drop Garrett and Short on the Texas Torts Claims Act.

"The Texas Torts Claims Act applies to negligent acts by people," he said. "We're saying the actions were intentional, not negligent."

City workers agreed to not enter Redburn's property and should continue to do so, Jones said.

The Texas Supreme Court will probably decide by next month whether it wants to hear the case. If it does, the case may be heard in the fall, Jones said.

City Attorney Thomas Gwosdz, meanwhile, thought the justices correctly dismissed Garrett and Short from the lawsuit.

"Initially, they ruled that the city manager and the public works director should be included, and that decision was contrary to established case law," he said.

The city's outside counsel is reviewing Redburn's petition and evaluating its options, Gwosdz said.

Cynthia Sheppard assisted Norman Jones on Redburn's appeal.

Source: http://www.victoriaadvocate.com/news/2013/jul/31/redburnsuit_080113_jrp_215981/

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