Appeals justices say Stayton Avenue culvert case can go back to court
By BY JESSICA PRIEST - JPRIEST@VICAD.COM
Feb. 28, 2013 at 10:05 p.m.
Updated Feb. 28, 2013 at 9:01 p.m.
A Victoria man, who once plugged a culvert with five tons of concrete after he said it was flooding his land, will get another chance to resolve a seven-year-long property dispute.
Appeals justices ruled Thursday that the city of Victoria is not immune to the legal claims of its resident Keith Redburn.
Redburn and his attorney, Norman Jones, argued in district court in 2011 that the city was responsible for cleaning the mess in the 900 block of Stayton Avenue.
The city, meanwhile, said it was Redburn's duty to maintain the area.
The lower court judge ordered Redburn remove the culvert's obstruction as well as go to mediation, but the two parties could not reach an agreement.
After mediation, the city claimed it could not be sued because it is a governmental entity, and the lower court judge agreed.
Appeals Justice Nora L. Longoria now ruled otherwise, writing in the 18-page opinion that the city of Victoria cannot say it is immune if it voluntarily came into the lawsuit.
Charmelle Garrett, the city manager, and Lynn Short, the director of public works, can also continue to be listed as defendants in the case, Jones said.
He said he hopes this decision will encourage the city of Victoria to fix the problem, rather than spend more of the taxpayers' dollars on attorneys.
"This means that you can be successful. You can fight city hall," he said.
Jones said Redburn offered to front the city of Victoria $145,000 to install an underground pipe that would alleviate any potential flooding in the area if the culvert were to go.
"The city would've paid him back over a three-to four-year period, but they've refused to do it," Jones said. "That's just crazy."
Jones said his client would probably settle for a similar proposition this time around.
City Attorney Thomas Gwosdz said he was disappointed in the outcome at the 13th Court of Appeals in Corpus Christi.
"I have not had the opportunity to fully evaluate all the implications of the opinion," Gwosdz said.
He said the city is looking at all its options before deciding what to do next.
State law prohibits the city of Victoria from constructing a public work affecting the health, welfare and safety of others without hiring an engineer, city representatives said in the past.
The representatives said the previous owner of Redburn's property, Daniel Braman, agreed during a 1941 city council meeting to assume any damage from the culvert because he wanted to fence it in.
They said when Redburn purchased the property in 2004 "as is" and he was bound by Braman's agreement.