                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-12-00284-CV

                                          BEXAR COUNTY,
                                             Appellant

                                                   v.

                                      Dominick COLOMBRITO,
                                              Appellee

                      From the 285th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010-CI-19443
                         Honorable Victor Hugo Negron Jr., Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 31, 2012

AFFIRMED

           This is an interlocutory appeal from the trial court’s denial of Bexar County’s plea to the

jurisdiction.     Dominick Colombrito brought an inverse condemnation claim against Bexar

County to recover for damages to his property caused by flooding, which he contends amounted

to a taking.       Colombrito also brought a nuisance claim, complaining that Bexar County

unreasonably diverted the natural course of surface waters, which substantially interfered with

the use and enjoyment of his land and caused extensive damages. He also alleged that Bexar

County failed to meet the statutory requirements under section 254.006 of the Texas
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Transportation Code and thereby waived its immunity from suit and for liability in his

negligence and nuisance claims.

           On appeal, Bexar County argues that the trial court erred in denying its plea to the

jurisdiction because Colombrito failed to allege facts that support a valid takings claim and thus

did not establish a waiver of Bexar County’s governmental immunity. Bexar County further

asserts that Chapter 254 of the Texas Transportation Code is inapplicable here and does not

waive Bexar County’s immunity. For reasons discussed below, we affirm the trial court’s order.

                                                  BACKGROUND

           According to Colombrito, he has resided at his home on Gillette Road in San Antonio

since 1990. He lived at this residence during the historic rains of 1998 and during the significant

flooding in Bexar County in 2002. He asserts that during these incidents his property did not

experience any flooding. Bexar County conducted maintenance work on Gillette road on several

occasions after 2002. Colombrito claims that with each resurfacing of the road, especially since

2007, he noticed water from the roadway encroaching onto his land. He alleges he began

complaining to Bexar County about the encroaching water as early as 2007. He insists that

Bexar County did not address his complaints and continued surfacing and resurfacing the road.

Colombrito alleges that his real property flooded in 2010. He sued Bexar County for inverse

condemnation, negligence, gross negligence, and nuisance. 1 In his second amended petition,

Colombrito added an allegation that Bexar County waived immunity pursuant to sections

254.005 and 254.006 of the Texas Transportation Code for failing to meet statutory requirements

relating to drainage on public roads.




1
    Colombrito is no longer asserting governmental waiver of immunity under the Texas Tort Claims Act.

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                                                                                      04-12-00284-CV


                                      STANDARD OF REVIEW

        “Sovereign immunity and its counterpart, governmental immunity, exist to protect the

State and its political subdivisions from lawsuits and liability for money damages.” Mission

Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); accord Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). “[Governmental] immunity

from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea

to the jurisdiction.” Miranda, 133 S.W.3d at 225–26; accord Mission Consol., 372 S.W.3d at

636.

       “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda,

133 S.W.3d at 226. We review this question of law de novo. Id.

       If the pleader has alleged sufficient jurisdictional facts, the governmental entity defendant

may also challenge the existence of the jurisdictional facts. See id. at 227. We review the

evidence like a traditional motion for summary judgment. See id. at 228; see also Mission

Consol., 372 S.W.3d at 635. We consider the competent summary judgment evidence, such as

deposition transcripts and sworn affidavits. See TEX. R. CIV. P. 166a(d), (f); McConathy v.

McConathy, 869 S.W.2d 341, 342 (Tex. 1994) (per curiam). “[W]e take as true all evidence

favorable to the nonmovant [and] indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.” Miranda, 133 S.W.3d at 228 (citation omitted); accord Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). However, “pleadings are not competent

[summary judgment] evidence, even if sworn or verified.” Laidlaw Waste Sys. (Dall.), Inc. v.

City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); see Reyes v. Saenz, 269 S.W.3d 675, 678

(Tex. App.—San Antonio 2008, no pet.).



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       As the plea to the jurisdiction movant, the governmental entity has the burden to show

that there are no genuine issues of material fact, and it is entitled to judgment as a matter of law.

See Mission Consol., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227–28; see also TEX. R. CIV.

P. 166a(c). The movant is entitled to summary judgment if it conclusively disproves at least one

essential element of each of the plaintiff’s claims. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801,

803 (Tex. 1999); Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).

However, if the evidence does not conclusively disprove the challenged elements, “then the trial

court cannot grant the plea to the jurisdiction, and the fact issue[s] will be resolved by the

fact[-]finder.” Miranda, 133 S.W.3d at 227–28; accord Univ. of Tex. Health Sci. Ctr. at San

Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.—San Antonio 2010, no pet.).

                            INVERSE CONDEMNATION BY FLOODING

A. Establishing a Cause of Action

       Article I, section 17 of the Texas Constitution, the “takings clause,” provides a waiver of

governmental immunity for claims arising from an unconstitutional taking of property without

adequate compensation. See TEX. CONST. art. I, § 17. This clause mandates that “[n]o person’s

property shall be taken, damaged, or destroyed for or applied to public use without adequate

compensation being made, unless by the consent of such person.” Id. When a governmental

entity intentionally takes private property for public use without adequately compensating the

landowner, “the owner may recover damages for inverse condemnation.” Tarrant Reg’l Water

Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).

       To assert a cause of action for inverse condemnation, a claimant must plead (1) the

governmental unit intentionally performed an act (2) that resulted in the taking, damaging, or

destruction of the claimant’s property (3) for public use. Gen. Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); accord Kirby Lake Dev., Ltd. v. Clear Lake City

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                                                                                     04-12-00284-CV


Water Auth., 321 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829

(Tex. 2010).

       Colombrito’s pleadings allege sufficient jurisdictional facts to affirmatively demonstrate

jurisdiction. See Miranda, 133 S.W.3d at 226. In its plea to the jurisdiction, Bexar County

challenged the existence of jurisdictional facts. See id. at 227. As the movant, Bexar County has

the burden to show there are no genuine issues of material fact, and that it is entitled to judgment

as a matter of law. See TEX. R. CIV. P. 166a(c); Mission Consol., 372 S.W.3d at 635; Miranda,

133 S.W.3d at 227–28.

B. Intent

       Bexar County challenges the intent element of Colombrito’s inverse condemnation claim

by contending it lacked knowledge that its actions in maintaining the road would cause harm to

Colombrito’s property or were substantially certain to do so.

       The intent element of an inverse condemnation claim is satisfied by proof that the

governmental body “(1) knows that a specific act is causing identifiable harm; or (2) knows that

the specific property damage is substantially certain to result from an authorized government

action—that is, that the damage is ‘necessarily an incident to, or necessarily a consequential

result of’ the government’s action.” See City of Dall. v. Jennings, 142 S.W.3d 310, 314 (Tex.

2004). To give rise to liability for an intentional taking, it is not enough that the act itself was

intentional, but it is not necessarily required that the governmental entity intended to cause the

damage. Id. at 313–14.

       Bexar County points to the single page of the deposition testimony of County public

works employee, Tony Vasquez, it attached to its plea to the jurisdiction as sufficient evidence to

establish it lacked the requisite intent for an inverse condemnation claim. Vasquez testified that

there was no indication the road would flood based on the minor maintenance and, that in his

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                                                                                    04-12-00284-CV


opinion, there was no way to expect the road would cause Colombrito’s property to flood. He

also testified that he had not received complaints about flooding from Colombrito’s neighbors.

The excerpt, however, does not explain who Tony Vasquez is or how he would have knowledge

of the road and its propensity for flooding.

       We conclude that this one page deposition excerpt—the only evidence Bexar County

included in its plea to the jurisdiction—fails to conclusively disprove the element of intent. The

brief dialogue contained therein fails to establish, inter alia, what Vasquez’s position with Bexar

County entailed, whether he had a responsibility to receive complaints of flooding or otherwise

be aware of such flooding, or whether he had some specialized engineering or hydrological

knowledge from which he could accurately predict the presence or absence of flooding. Because

the record before us lacks this critical information, we cannot say that Bexar County has

presented evidence conclusively disproving, as a matter of law, this element of Colombrito’s

inverse condemnation claim. See Elliott-Williams Co., 9 S.W.3d at 803.

C. Taking

       Bexar County argues that Colombrito’s complaint cannot constitute a compensable taking

because a one-time flooding of a property is not a taking.

       “A ‘taking’ by flooding is a specific type of taking.” Howard v. City of Kerrville, 75

S.W.3d 112, 117 (Tex. App.—San Antonio 2002, pet. denied); see Gragg, 151 S.W.3d at 554.

Establishing a taking by flooding generally requires more than a single flood event. Gragg, 151

S.W.3d at 555; Howard, 75 S.W.3d at 117.

       In the case of flood-water impacts, recurrence is a probative factor in determining
       the extent of the taking and whether it is necessarily incident to authorized
       government activity, and therefore substantially certain to occur. . . . The
       recurrence requirement assures that the government is not held liable for taking




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       property when a project’s adverse impacts, and by implication its benefit to the
       public, are too temporal or speculative to warrant compensation.

Gragg, 151 S.W.3d at 555.

       In his second amended petition, Colombrito alleged that Bexar County’s actions in

maintaining the road caused water to encroach on his property numerous times and ultimately

caused the flooding of his home in June 2010. Bexar County points only to the assertion in

Colombrito’s petition that “Mr. Colombrito did not experience flooding at his house until June of

2010,” and overlooks Colombrito’s allegations of recurrent flooding on his property. Colombrito

alleged he began noticing water from the roadway encroaching onto his property “[w]ith each

resurfacing of the road, especially since 2007.” Although Colombrito’s house was not flooded

until June 2010, his pleadings assert that his property experienced encroaching water as early as

2007. Thus, Colombrito has alleged sufficient facts that, if true, establish recurrent flooding of

his property and flood damage to his home. Bexar County presented no evidence to rebut

Colombrito’s assertions of the repeated flooding of his property. Therefore, Bexar County has

failed to conclusively disprove the element of taking. See Elliott-Williams Co., 9 S.W.3d at 803.

D. Public Use

       Bexar County claims Colombrito has not established that Bexar County’s use of the road

was a “public use.” Specifically, Bexar County contends that its actions in resurfacing the road

were negligent, at most, and the damage caused by the surface maintenance activities was merely

the accidental result of the government’s act. Colombrito argues that if the pleadings give rise to

a fact question regarding intent, he has alleged sufficient jurisdictional facts to show public use.

       The public-use requirement distinguishes a negligence claim from an inverse

condemnation claim. See City of San Antonio v. Pollock, 284 S.W.3d 809, 820–21 (Tex. 2009);

Jennings, 142 S.W.3d at 314. “[A] compensable taking occurs ‘only if property is damaged or


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                                                                                 04-12-00284-CV


appropriated for or applied to public use.’” Pollock, 284 S.W.3d at 820 (quoting Gragg, 151

S.W.3d at 554–55). This is because “[a]n accidental destruction of property does not benefit the

public.” Id. “When damage is merely the accidental result of the government’s act, there is no

public benefit and the property cannot be said to be ‘taken or damaged for public use.’”

Jennings, 142 S.W.3d at 313 (quoting Tex. Highway Dep’t v. Weber, 147 Tex. 628, 631, 219

S.W.2d 70, 71 (1949)). “Accidental” is defined as “[n]ot having occurred as a result of anyone’s

purposeful act.” BLACK’S LAW DICTIONARY 16 (8th ed. 2004).

       Colombrito’s pleadings allege the roadway was resurfaced for the benefit of the public.

Moreover, as discussed above, Bexar County failed to conclusively disprove the element of

intent. If Bexar County knew its actions in maintaining the road would cause identifiable harm

or that flooding to Colombrito’s property was substantially certain to result, the damage would

be the result of Bexar County’s purposeful act and would therefore not be accidental. See id.;

Jennings, 142 S.W.3d at 314. Because a fact issue exists with regard to Bexar County’s intent in

acting to maintain the road, there necessarily exists a fact issue as to whether the damage was

merely the accidental result of Bexar County’s act or was damaged for a public use. See

Jennings, 142 S.W.3d at 314; Pollock, 284 S.W.3d at 820–21.

E. Conclusion

       Having reviewed the relevant evidence de novo, we conclude Bexar County failed to

conclusively disprove at least one element of Colombrito’s inverse condemnation claim. See

Elliott-Williams Co., 9 S.W.3d at 803; Doe, 907 S.W.2d at 476–77.

                                          NUISANCE

       Colombrito also asserted a nuisance claim against Bexar County for allegedly

unreasonably diverting the natural course of surface waters, which substantially interfered with

Colombrito’s use and enjoyment of his land and caused extensive damages. Bexar County

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contends its governmental immunity has not been waived, therefore, as a matter of law, it cannot

be liable for 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.”

Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). “A [county] may be

held liable for a nuisance that rises to the level of a constitutional taking.” Jennings, 142 S.W.3d

at 316. Because we have already concluded that fact issues remain as to Colombrito’s inverse

condemnation claim, in this case there necessarily exists a fact issue as to his nuisance claim. Cf.

id. (concluding that the city was immune from nuisance a claim because it lacked the requisite

intent to be held liable for inverse condemnation).

                          TEXAS TRANSPORTATION CODE CHAPTER 254

       In his pleadings, Colombrito alleged that section 254.006 of the Texas Transportation

Code waived Bexar County’s immunity to liability for nuisance. As stated in Colombrito’s brief,

his arguments with regard to Chapter 254 of the Transportation Code “directly relate[] to

Colombrito’s inverse takings claim as well as his nuisance claim.” Because we have heretofore

concluded that the trial court properly denied Bexar County’s plea to the jurisdiction on the

ground that Bexar County failed to conclusively disprove an essential element of Colombrito’s

nuisance and inverse condemnation claims, we need not address the applicability of the

Transportation Code. See TEX. R. APP. P. 47.1; Combs v. Entm’t Publ’ns, Inc., 292 S.W.3d 712,

723 n.7 (Tex. App.—Austin 2009, no pet.).

                                          CONCLUSION

       Bexar County failed to meet its burden to conclusively disprove at least one essential

element of Colombrito’s inverse condemnation and nuisance claims. See Elliott-Williams Co., 9

S.W.3d at 803; Doe, 907 S.W.2d at 476–77. Therefore, although Colombrito asserts that the

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Transportation Code may provide an additional basis for a waiver of immunity, we do not

address its applicability. See TEX. R. APP. P. 47.1. Accordingly, we affirm the trial court’s

denial of Bexar County’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 227–28; Stevens,

330 S.W.3d at 338.



                                               Rebecca Simmons, Justice




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