Affirmed in part; Reversed and Remanded in part; and Opinion filed July 24,
2014.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-13-00890-CV

              FRANK AND SHELLEY THORNTON, Appellants
                                         V.

             NORTHEAST HARRIS COUNTY MUD 1, Appellee

             On Appeal from the County Civil Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 996,704

                                 OPINION


      Appellee Northeast Harris County MUD 1 filed an eminent domain suit
against appellants Frank and Shelley Thornton.            The Thorntons brought
counterclaims for inverse condemnation, nuisance, trespass, and negligent trespass.
MUD filed a plea to the jurisdiction, arguing that there was no legislative waiver of
its governmental immunity and that the Thorntons’ counterclaims did not give rise
to a constitutional taking sufficient to waive immunity because they cannot show
MUD intended to contaminate their property and that alleged contamination of
their property serves a public use.

      MUD also filed traditional and no-evidence motions for summary judgment.
In its traditional motion, MUD argued that there was no legislative waiver of its
governmental immunity and that the Thorntons’ counterclaim for negligent
trespass fails as a matter of law because negligent conduct cannot give rise to a
constitutional taking sufficient to waive immunity. In its no-evidence motion,
MUD asserted that the Thorntons’ counterclaims for inverse condemnation,
nuisance, and trespass are barred by governmental immunity “[i]n the absence of
an intentional act resulting in the taking of private property for public use.”
Specifically, MUD asserted that the Thorntons had not offered any evidence of
MUD’s intent to contaminate or erode their property, and of how contaminating or
eroding their property serves a public use.

      The trial court did not rule on MUD’s plea to the jurisdiction but granted its
motions for summary judgment. The Thorntons noticed their appeal from the trial
court’s order granting MUD summary judgment as to the Thorntons’
counterclaims. MUD filed an emergency motion for involuntary dismissal of
appeal, which we carried with the case. After concluding that we have jurisdiction
over this interlocutory appeal, we deny MUD’s motion to dismiss, and affirm in
part, reverse in part, and remand.

               I.      FACTUAL AND PROCEDURAL BACKGROUND

      The developer of a 380-acre master planned development sought approval
from MUD of its plan to mitigate the impact from its stormwater drainage. MUD
adopted the proposed drainage and retention plan, and the developer began
construction work to tie into an existing ditch on the Thorntons’ property in
February 2011. However, an investigation revealed that MUD did not have a
                                          2
record easement for the existing drainage ditch. In July 2011, MUD filed an
eminent domain suit to acquire a 0.6569-acre drainage easement on the Thorntons’
1.607-acre tract of land. A statutory damages hearing was held, and the court-
appointed special commissioners awarded the Thorntons approximately $2300 in
damages.

      The Thorntons filed an objection to the award. When the Thorntons refused
to allow MUD’s contractors back onto their property to complete MUD’s project,
MUD filed an emergency motion for writ of possession, and the trial court granted
immediate possession of the easement to MUD.

      MUD moved for partial summary judgment with regard to its “right to take,”
which the trial court granted. In the meantime, trial had been set for the remaining
compensation issue.    MUD then moved for no-evidence summary judgment,
asserting that the Thorntons had no evidence as to market value. The Thorntons
responded and attached exhibits, to which MUD filed objections. The trial court
granted in part and denied in part MUD’s objections, but denied MUD’s motion
for no-evidence summary judgment.

      In July 2013, the Thorntons filed a supplemental answer and original
counterclaim asserting a claim for inverse condemnation under article I, section 17,
of the Texas Constitution and for permanent injunction related to alleged lead
contamination of their property based on the use of toxic soil during the drainage
construction project. They later amended to add claims for nuisance, trespass, and
negligent trespass.

      MUD filed a plea to the jurisdiction, arguing that it retained its governmental
immunity from the Thorntons’ counterclaims because they cannot show the
requisite constitutional taking elements of intent and public use. The Thorntons
responded.
                                         3
       Within a single document, MUD also filed traditional and no-evidence
motions for summary judgment, arguing that it enjoyed governmental immunity,
that the Thorntons’ negligent trespass claim failed as a matter of law to give rise to
a constitutional taking sufficient to waive immunity, and that the Thorntons had
presented no evidence of the requisite constitutional taking elements of intent and
public use.1 MUD did not attach any evidence to its motions. The Thorntons
again responded and attached exhibits. Although the Thorntons asserted MUD’s
no-evidence motion was improper because it required them to marshal all of their
evidence, they also argued that they had produced sufficient evidence to raise a
fact issue on intent and public use. MUD did not reply to or file any objections to
the Thorntons’ evidence.

       On September 30, 2013, the trial court held a hearing on MUD’s plea and
summary judgment motions. At the hearing, both sides indicated they would seek
immediate appeal of adverse rulings. On October 6, 2013, the trial court granted
MUD’s traditional and no-evidence motions for summary judgment. Within its
order, the trial court indicated that per “stipulations” it was incorporating two
particular prior evidentiary rulings, granting MUD’s motion to strike, and striking
the portion of the summary judgment record as to which it sustained MUD’s
objections. The trial court did not rule on MUD’s plea to the jurisdiction, and on
October 9, 2013, signed an order denying the Thorntons’ request for expedited oral
hearing on MUD’s plea.

       This interlocutory appeal followed. In this court, MUD filed an emergency
motion for involuntary dismissal of appeal, arguing that the Thorntons are not
entitled to interlocutory appeal of the trial court’s summary judgment order under

       1
          MUD did not address the Thorntons’ request for permanent injunction either in its plea
to the jurisdiction or its summary judgment filing.

                                               4
Texas Rule of Civil Procedure section 51.014(a)(8). We carried this motion with
the case.

       On appeal, the Thorntons argue the following. First, as a threshold matter,
they contend that this court has interlocutory jurisdiction because this is an appeal
of a summary judgment order based on governmental immunity. Second, the
Thorntons argue that the trial court erred in excluding certain portions of their
summary judgment evidence. Third, they contend that the trial court erred in
granting MUD’s motions for traditional and no-evidence summary judgment. The
Thorntons argue that negligent trespass is actionable against the government. With
regard to MUD’s no-evidence motion, the Thorntons assert that a no-evidence
summary judgment is an improper vehicle to challenge jurisdictional facts, and
that, in any event, their evidence raised a genuine fact issue as to whether MUD
acted intentionally with regard to the lead contamination and as to whether MUD’s
conduct served a public use. 2 Fourth, the Thorntons request that they be allowed to
replead any pleading deficiencies.

                                 II.       JURISDICTION

       As a threshold issue, we must determine whether we have appellate
jurisdiction over this interlocutory appeal. We conclude that we do.

       Pursuant to section 51.014(a)(8), a person may appeal and this court may
review an interlocutory order that “grants or denies a plea to the jurisdiction by a
governmental unit.” Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West
2008 & Supp. 2013). Although the Texas Supreme Court recognizes section

       2
         Despite MUD’s reference to erosion within its no-evidence summary judgment motion,
the Thorntons indicate, and their pleadings confirm, that they do not complain about erosion, but
rather about the lead contamination. They allege that MUD created a nuisance “by the
introduction of contaminated soil to” their property and committed trespass by “dumping
contaminated soil onto their property.”

                                               5
51.014(a) is a narrow exception to the general rule that only final judgments are
appealable, it has “construed ‘plea to the jurisdiction’ in [s]ection 51.014(a)(8) to
refer to a substantive claim of immunity rather than to a particular type of
procedural vehicle.” City of Houston v. Estate of Jones, 388 S.W.3d 663, 666
(Tex. 2012) (per curiam). The availability of an interlocutory appeal will not be
decided by the form or caption of a pleading, but rather will be determined by the
substance of the motion to determine the relief sought. Surgitek v. Abel, 997
S.W.2d 598, 601 (Tex. 1999). An interlocutory appeal may be had when a trial
court grants or denies a governmental unit’s challenge to subject matter
jurisdiction, “irrespective of the procedural vehicle used.” See Thomas v. Long,
207 S.W.3d 334, 339 (Tex. 2006).3 Thus, where the record does not contain an
order granting or denying a plea to the jurisdiction, but does include an order
granting or denying a motion for summary judgment in which the movant
challenged the trial court’s jurisdiction, an interlocutory appeal may be taken under
subsection (a)(8). See Lazarides v. Farris, 367 S.W.3d 788, 796–97 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).

       Here, the Thorntons alleged in their petition that MUD’s taking, damaging,
and destroying their property was in the nature of an inverse condemnation
violating article I, section 17, of the Texas Constitution, i.e., a constitutional
taking. They also brought counterclaims for nuisance, trespass, and negligent
trespass, all based on MUD’s alleged taking.
       3
          MUD relies on Long for the proposition that by reaching the merits of the Thorntons’
counterclaims on summary judgment, the trial court implicitly denied MUD’s plea to the
jurisdiction. In Long, where the sheriff’s summary judgment motion challenged jurisdiction and
the trial court went on to address the merits of the plaintiff’s declaratory judgment claim and
ruled in her favor on cross-summary judgment, the Texas Supreme Court construed the trial
court’s summary judgment ruling as an implicit denial of the sheriff’s challenge to the court’s
jurisdiction. 207 S.W.3d at 339–40. In contrast, here, there was no implicit denial. MUD’s
summary judgment motions similarly challenged jurisdiction and the trial court ruled in MUD’s
favor, so functionally the ruling granted MUD’s jurisdictional challenge.

                                              6
      MUD filed a plea to the jurisdiction, arguing that there was no legislative
waiver of its governmental immunity; it only could be sued for claims rising to the
level of a constitutional taking under article I, section 17; and the Thorntons
“cannot show” that MUD intentionally contaminated their property and how the
alleged contamination could serve a public use. MUD thus asserted: “In the
absence of an intentional act resulting in the taking of private property for public
use, [the Thorntons’] claims . . . are barred by governmental immunity.”

      MUD also filed “Traditional and No-Evidence Motions for Summary
Judgment on Defendants’ Counterclaims.”           In the traditional portion of its
combined filing, MUD argued that there was no legislative waiver of its
governmental immunity and that the Thorntons’ claim for negligent trespass failed
as a matter of law because a constitutional taking sufficient to waive immunity
cannot be based on a theory of negligence. Within the no-evidence portion, MUD
again argued that the Thorntons “may sue [MUD] only if the alleged acts rise to
the level of a constitutional taking under Article I, Section 17,” repeating that “[i]n
the absence of an intentional act resulting in the taking of private property for
public use, [the Thorntons’] claims . . . are barred by governmental immunity.”
MUD then asserted that the Thorntons had failed to produce any evidence of
certain essential elements of a constitutional taking—MUD’s intent to contaminate
or erode the Thorntons’ property and how such alleged contamination or erosion
serves a public use.

      Although MUD styled its later pleading as motions for summary judgment,
separated out the negligent trespass claim in the traditional motion, and attacked
the rest of the Thorntons’ counterclaims within the procedural vehicle of a no-
evidence motion, after comparing the substance of MUD’s plea with the substance
of its summary judgment motions, we conclude that MUD presented essentially the

                                          7
same immunity-based arguments with respect to the Thorntons’ counterclaims in
both filings. See City of Houston v. Atser, L.P., 403 S.W.3d 354, 359 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied) (op. on reh’g) (discussing Jones and
concluding city’s later filing styled as summary judgment motion “merely restated
the same grounds” as in its earlier plea to the jurisdiction—therefore, where city
had failed to timely appeal denial of plea, it could not appeal later denial of
summary judgment under section 51.014(a)(8)).

      Despite the lack of a ruling on MUD’s plea, the Thorntons can appeal and
this court has interlocutory jurisdiction to review the trial court’s order granting
MUD summary judgment on immunity-based grounds. See Tex. Civ. Prac. &
Rem. Code § 51.014(a)(8); Lazarides, 367 S.W.3d at 796–97 (concluding
interlocutory jurisdiction existed over denial of public official’s summary
judgment motion in which he made jurisdictional challenges despite lack of ruling
on his earlier plea). Therefore, we deny MUD’s emergency motion for involuntary
dismissal and proceed to the merits of the Thorntons’ interlocutory appeal.

                                   III.        ANALYSIS

      Although this is an appeal from a summary judgment order, the trial court
made its ruling in the context of MUD’s jurisdictional challenge based on
governmental immunity, so we apply the standards of review and the burdens of
proof applicable to jurisdictional pleas. See Lazarides, 367 S.W.3d at 797.

A. Standard of review

      Governmental “immunity from suit defeats a trial court’s subject matter
jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).4 The

      4
          MUD is a political subdivision of the State created pursuant to article XVI, section 59,
                                                8
jurisdictional challenges in MUD’s summary judgment motions raise a question of
law reviewed de novo on appeal. See Lazarides, 367 S.W.3d at 797. We have
jurisdiction to review a trial court’s order that granted or denied summary
judgment as to grounds in which the governmental entity challenged the trial
court’s subject matter jurisdiction. See id.

       A summary judgment motion challenging jurisdiction may challenge the
pleadings, the existence of jurisdictional facts, or both. See id. When such a
motion challenges the sufficiency of the pleadings, we determine whether the
plaintiff has met his burden by pleading facts that affirmatively demonstrate the
trial court’s subject matter jurisdiction. Miranda, 133 S.W.3d at 226. In doing so,
we construe the pleadings liberally in favor of the pleader, look to the pleader’s
intent, and accept as true the factual allegations in the pleadings. Id. at 226, 228.
If the pleadings are insufficient to establish jurisdiction but do not affirmatively
establish an incurable defect, the plaintiff should be afforded an opportunity to
replead. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133 S.W.3d
at 226–27. However, if the pleadings affirmatively negate the existence of the trial
court’s jurisdiction, then such a motion may be granted without allowing the
plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.

       If the plaintiff has alleged sufficient jurisdictional facts, the governmental
entity also may challenge the existence of the jurisdictional facts. See id. The
standard of review for a jurisdictional plea or motion based on evidence “mirrors
that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at
228. Under this standard, we credit as true all evidence favoring the nonmovant
of the Texas Constitution, operating under chapters 49 and 54 of the Texas Water Code. The
doctrine of governmental immunity protects political subdivisions such as MUD from lawsuits
seeking damages. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003); MBP Corp. v. Bd. of Trs. of Galveston Wharves, 297 S.W.3d 483, 487 (Tex. App.—
Houston [14th Dist.] 2009, no pet.).

                                            9
and draw all reasonable inferences and resolve any doubts in the nonmovant’s
favor. Id. The movant must assert the absence of subject matter jurisdiction and
present conclusive proof that the trial court lacks subject matter jurisdiction. Id.
Proof is conclusive only if reasonable people could not differ in their conclusions.
City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).           If the movant
discharges this burden, the nonmovant then must present evidence sufficient to
raise a material issue of fact regarding jurisdiction, or the plea will be sustained.
See Miranda, 133 S.W.3d at 228. If the movant does not conclusively disprove the
challenged elements, then the trial court cannot grant such motion and the fact
issues will be resolved by the factfinder. See id. at 227–28.

B. Inverse condemnation

      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 for public use without adequate compensation.
See Tex. Const. art. I, § 17; Kirby Lake Dev. v. Clear Lake City Water, 321 S.W.3d
1, 5 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010)
(“There is a clear and unambiguous waiver of immunity from suit for inverse-
condemnation claims within the ambit of article I, section 17 of the Texas
Constitution”). 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.” Tex. Const. art. I, § 17.

      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 inverse condemnation, a claimant must
plead: (1) the governmental unit intentionally performed an act (2) that resulted in

                                         10
the taking, damaging, or destruction of the claimant’s property (3) for public use.
See Gen. Servs. Comm’n v. Little–Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.
2001); Kirby Lake Dev., 321 S.W.3d at 5.

C. “Negligent trespass” claim

         Within its traditional summary judgment motion, MUD challenged the
Thorntons’ “negligent trespass” claim on the basis that a constitutional taking
cannot be based on negligence. According to MUD, the Thorntons’ “negligent
trespass” claim failed to invoke the trial court’s jurisdiction as a matter of law. We
agree.

         The Texas Supreme Court has explained the intent element of an inverse
condemnation claim is satisfied by proof that the governmental unit (1) knows that
the specific act is causing identifiable harm or (2) knows that the specific property
damage is substantially certain to result from authorized government action—that
is, that the harm is necessarily incident to, or necessarily a consequential result of
the government’s action. City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex.
2004) (“This definition comports with the definition of ‘intent’ in the Restatement
of Torts . . . .”). In order to sufficiently allege the intent element for a takings
claim, it is not enough merely to allege that the act causing the damage was
intentional. See id. at 313–14. However, it is not necessary to show that the
governmental entity intended to cause the damage. Id. at 314. Rather, a party
must allege the governmental entity knew that a specific act was causing
identifiable harm, or at least knew that the damage was substantially certain to
occur. See id. Additionally, the Texas Supreme Court repeatedly has held that acts
of mere negligence will not support a taking. City of San Antonio v. Pollock, 284
S.W.3d 809, 820 (Tex. 2009) (“[T]he government’s ‘mere negligence which
eventually contributes to the destruction of property is not a taking’; rather, the

                                         11
government must act intentionally.” (footnote omitted)); Gragg, 151 S.W.3d at 554
(“[W]e strive to avoid what would be anomalous result if the State, an entity
otherwise generally entitled to immunity for negligence, were subject to liability
for something less than intentional behavior.”); Jennings, 142 S.W.3d at 313; City
of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997).

      “A trespass is usually regarded as an intentional tort in the sense that it
involves an intent to commit an act which violates a property right, or would be
practically certain to have that effect, although the actor may not know that the act
he intends to commit is such a violation.” Harris Cnty. v. Cypress Forest Pub.
Util. Dist., 50 S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Few cases have addressed the viability of an independent claim for “negligent
trespass.” Compare Warwick Towers Council of Co-Owners ex rel. St. Paul Fire
& Marine Ins. Co. v. Park Warwick, L.P., 298 S.W.3d 436, 448 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (concluding trespass claim predicated on
negligent failure to act rather than on commission of “an intentional act that
violates a property right or would be practically certain to have that effect” fails as
matter of law), with Watson v. Brazos Elec. Power Co-op., Inc., 918 S.W.2d 639,
645–46 (Tex. App.—Waco 1996, writ denied) (jury charge error in failing to
submit definition and question where plaintiff pleaded and produced evidence of
“trespass predicated upon a negligent act,” noting that under Restatement (Second)
of Torts § 165 trespass may be committed negligently). The Texas Supreme Court
has not yet directly addressed the issue, but apparently does recognize that
different damage recoveries are available for trespass, “depending on whether the
trespass was committed intentionally, negligently, accidentally, or by an
abnormally dangerous activity.” See Coinmach Corp. v. Aspenwood Apartment
Corp., 417 S.W.3d 909, 920 (Tex. 2013) (discussing Watson, 918 S.W.3d at 645).


                                          12
       The Thorntons primarily argue that MUD’s reliance on Jennings for the
proposition that an intent requirement applies to their “negligent trespass” claim is
misplaced because Jennings “had nothing to do with trespass but instead involved
eminent domain and nuisance.” 5             However, we decline to read Jennings so
narrowly.     Instead, Jennings indicated that the heightened intent requirement
would apply whenever a plaintiff’s theory of recovery is based on the
governmental entity’s physical damage of private property in order to confer a
public benefit, i.e., a constitutional taking.           See 142 S.W.3d at 314; City of
Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (“In [Jennings],
we held that a heightened intent standard is indeed necessary to support a takings
claim . . . .”). To that end, where a plaintiff has alleged trespass in the context of a
constitutional taking, Texas courts also have applied the Jennings standard. See,
e.g., City of El Paso v. Ramirez, 431 S.W.3d 630, 635, 639–40 (Tex. App.—El
Paso 2014, no pet.); City of Midland v. Walton, No. 11-08-00053-CV, 2008 WL
5100942, at *2–3 (Tex. App.—Eastland Dec. 4, 2008, pet. denied) (mem. op.). In
their petition, the Thorntons expressly alleged that MUD’s “trespass constitutes a
taking of their land for public purposes.” The Thorntons then incorporated this
“taking” allegation into their “negligent trespass” claim.

       Within their “negligent trespass” claim, the Thorntons alleged that “[i]n
addition to other counts, [MUD] negligently trespassed on [their] property” and
“entered upon [their] property and began excavating.” (Emphasis added). The
Thorntons did not provide any further details as to how MUD allegedly entered
onto their property or performed its excavation in a negligent manner. Assuming
solely for purposes of our analysis without deciding the viability of a “negligent
trespass” claim, and construing the pleadings liberally in the Thorntons’ favor,
       5
         See 142 S.W.3d at 316 (“[A] city may be held liable for a nuisance that rises to the level
of a constitutional taking.”).

                                                13
looking to their intent, and accepting their factual allegations as true, see Miranda,
133 S.W.3d at 226, 228, we conclude that to the extent they are attempting to bring
a takings claim based on a negligence theory, 6 their “negligent trespass” claim is
barred. See Gragg, 151 S.W.3d at 554; Jennings, 142 S.W.3d at 313.

       The only basis for waiver of governmental immunity the Thorntons alleged
in their petition was article I, section 17, of the Texas Constitution. Because the
Thorntons asserted no other grounds for a waiver of MUD’s governmental
immunity, 7 and a claim for constitutional taking cannot be based on mere
negligence, we conclude that the Thorntons’ pleadings failed to invoke and
affirmatively negated the trial court’s jurisdiction over their “negligent trespass”
claim. See Miranda, 133 S.W.3d at 227.

       On appeal, the Thorntons now contend that “negligent trespass” would be
cognizable under the provision for negligence in the Texas Tort Claims Act. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011). 8                           In both its
jurisdictional plea and summary judgment motions, MUD pointed out that the

       6
        If the Thorntons’ “negligent trespass” claim were not based on a negligence theory, then
arguably it would be duplicative of and subsumed by their trespass claim. For instance, they
incorporated the same allegation of damages flowing from their trespass claim into their
“negligent trespass” claim. See Coinmach, 417 S.W.3d at 920–21.
       7
          It is the plaintiff who must “affirmatively demonstrate the court’s jurisdiction by
alleging a valid waiver of immunity.” Tex. Dep’t of Pub. Safety v. Grisham, 232 S.W.3d 822,
824 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Dall. Area Rapid Transit v. Whitley,
104 S.W.3d 540, 542 (Tex. 2003)).
       8
          Even where a plaintiff has cast a trespass claim in terms of negligence, courts generally
have refused to find waiver of governmental immunity pursuant to the Texas Tort Claims Act.
See, e.g., Hidalgo Cnty. v. Dyer, 358 S.W.3d 698, 704 (Tex. App.—Corpus Christi 2011, no pet.)
(“Although Dyer attempts to characterize his trespass claim as a negligence claim,” immunity
not waived under Texas Tort Claims Act); Cypress Forest, 50 S.W.3d at 553–54 (same for
plaintiff’s “trespass” claim of dumping hazardous materials on land); but see Kilburn v. Fort
Bend Cnty. Drainage Dist., 411 S.W.3d 33, 38–40 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (rejecting county’s argument that plaintiffs were merely trying to disguise trespass claim as
negligence to circumvent immunity under Texas Tort Claims Act).

                                                14
Thorntons only alleged constitutional taking under article I, section 17, as opposed
to any other constitutional or statutory basis for waiver of governmental immunity.
However, the Thorntons failed to otherwise allege any other basis for jurisdiction
in their responses or in any of their amended petitions. We therefore affirm
summary judgment as to the “negligent trespass” claim without remanding for
another opportunity to replead. See Miranda, 133 S.W.3d at 227; Harris Cnty. v.
Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If a plaintiff has been provided a
reasonable opportunity to amend after a governmental entity files its plea to the
jurisdiction, and the plaintiff’s amended pleading still does not allege facts that
would constitute a waiver of immunity, then the trial court should dismiss the
plaintiff’s action.”); Cypress Forest, 50 S.W.3d at 554 (noting plaintiff’s failure to
take advantage of multiple pleading opportunities).

       We overrule the Thorntons’ third and fourth issues as to their “negligent
trespass” claim.

D. Inverse condemnation, nuisance, and trespass claims

       With regard to the Thorntons’ claims for inverse condemnation, nuisance,
and trespass, MUD asserted that they had to plead and prove the elements of a
constitutional taking in order to pierce MUD’s governmental immunity. Except as
to “negligent trespass,” MUD did not focus its jurisdictional attack on the
Thorntons’ pleadings—i.e., MUD did not specifically argue in the trial court that
the Thorntons insufficiently had pleaded the intent and public use elements of their
takings claims or explain how those claims fail as a matter of law.9 Instead, MUD

       9
         On appeal, however, MUD further argues that the trial court would have been correct in
granting its plea to the jurisdiction because a property owner cannot recover damages resulting
from construction activities in a condemnation case. MUD cites to older case law for this
proposition. See Throckmorton Cnty. v. Howsley, 28 S.W.2d 951, 952 (Tex. Civ. App.—
Eastland 1930, no writ) (no recovery in condemnation for negligent construction of
improvement); see also City of Trinity v. McPhail, 131 S.W.2d 803, 808–09 (Tex. Civ. App.—
                                              15
challenged the complete lack of jurisdictional evidence on those elements.10

       1. The Thorntons’ pleadings sufficiently invoke jurisdiction.

              a. Intent

       In any event, we conclude that the Thorntons’ pleadings allege sufficient
jurisdictional facts to affirmatively demonstrate jurisdiction. Not only did the


Galveston 1939, no writ) (same); Fort Worth & D.S.P. Ry. Co. v. Gilmore, 2 S.W.2d 543, 545
(Tex. Civ. App.—Amarillo 1928, no writ) (same); Jefferson Cnty. Traction Co. v. Wilhelm, 194
S.W. 448, 452–53 (Tex. Civ. App.—Beaumont 1917, no writ) (same). We agree with MUD
insofar as an alleged takings claim in fact only sounds in negligence. MUD further relies on
Loyd v. ECO Resources, Inc., which was not a condemnation case, but where this court
explained: “If the damage is clearly attributable to negligent acts of the agents of the
governmental unit, there is no liability under the rationale that a damaging from unintended and
negligent acts results in no benefit to the public.” 956 S.W.2d 110, 128 (Tex. App.—Houston
[14th Dist.] 1997, no writ). However, Loyd also went on to state that “‘[d]amaging’ of property
on account of ‘public’ use, required to be compensated under article I, section 17 of the Texas
Constitution, includes injury from the construction of public works and their subsequent
maintenance and operation.” Id. We see no reason that Loyd or any other cited authority would
foreclose non-negligence-based constitutional taking claims and recovery of damages related to
the ongoing construction and operation by MUD of the drainage project here. Aside from their
“negligent trespass” claim, nothing in the Thorntons’ pleading of its counterclaims clearly
attributes the lead contamination property damage to MUD’s negligence. Although MUD
adamantly asserts that it did not make any decision or intend to contaminate the Thorntons’
property through its public drainage project, and such alleged contamination does not serve any
public purpose, the Thorntons’ pleadings construed liberally do not affirmatively negate
jurisdiction on this basis. Nor did MUD present any supporting evidence to conclusively
establish such lack of intent or public use.
       To the extent MUD contends that even a properly pleaded non-negligence-based takings
claim must be pursued in a separate proceeding from the condemnation suit, we disagree, as this
court permits them to be tried together. See Martini v. City of Pearland, No. 14-11-00111-CV,
2012 WL 1345744, at *1–2, *7–8 (Tex. App.—Houston [14th Dist.] Apr. 17, 2012, pet. denied)
(mem. op.) (city brought eminent domain suit and property-owner brought inverse condemnation
counterclaim for alleged negative drainage impact from road construction); State v. Clear
Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *4 (Tex. App.—Houston
[14th Dist.] July 31, 2008, no pet.) (mem. op.) (affirming denial of plea where State brought
condemnation suit for highway development project and lessee asserted inverse condemnation
claim for damaging of its property interests).
       10
           MUD did not contest the causation element that the governmental entity’s act must
result in the taking, damaging, or destruction of property. See Gen. Servs. Comm’n, 39 S.W.3d
at 598; Kirby Lake Dev., 321 S.W.3d at 5.

                                              16
Thorntons allege that in 2011, MUD entered onto their property, began excavating
soil, and introduced and dumped lead-“contaminated soil” onto their property,
which resulted in contamination of and damages to the property’s value, but also
they alleged that such behavior “is ongoing and has continued day to day.”
Contrary to MUD’s contention, the Thorntons are not required to plead 11 and prove
that MUD intended to contaminate their soil. See Jennings, 142 S.W.3d at 314;
City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex. App.—Eastland 2006, no
pet.) (not necessary for takings claim that city knew its surface activities would
damage plaintiffs’ copper deposit—“work was done intentionally to alter the
surface, which because of the copper deposit and plaintiffs’ rights under the
mineral reservation, arguably caused damage”). Rather, they must allege that
MUD knew that a specific act was causing identifiable harm, or at least knew that
the damage was substantially certain to occur. See Jennings, 142 S.W.3d at 314.

       Construing the pleadings liberally in favor of jurisdiction, looking to the
Thorntons’ intent, and accepting the allegations in the pleadings as true, see
Miranda, 133 S.W.3d at 226, these facts indicate at some point MUD had
knowledge that its introduction and dumping of such lead-“contaminated soil”
would damage or destroy the Thorntons’ private property and such damage was
“necessarily an incident to” its conduct, meaning it was “substantially certain” to
occur as a result of MUD’s actions in using or continuing to use lead-contaminated
soil in its drainage work on the Thorntons’ property. See Jennings, 142 S.W.3d at
314. We conclude that the Thorntons’ pleadings sufficiently alleged facts to show
MUD’s intent.



       11
            Again, MUD’s attack focused on the lack of evidence of intent, rather than insufficient
pleading.

                                                 17
             b. Public use

      While there is no concrete rule for determining whether a particular use is a
public use, generally, the meaning is limited to situations in which the damages
arise out of or are incident to the construction and operation of public works. See
Steele v. City of Houston, 603 S.W.2d 786, 790–91 (Tex. 1980); Loyd v. ECO Res.,
Inc., 956 S.W.2d 110, 128 (Tex. App.—Houston [14th Dist.] 1997, no writ). Thus,
MUD’s contention that the Thorntons must plead 12 and prove MUD’s alleged soil
contamination itself serves a public use or that the use of contaminated soil be
integral to its public project is incorrect. See Harper, 216 S.W.3d at 393 (“Nor
must plaintiffs show that a direct benefit flowed to the public from the damage
done to plaintiffs’ copper deposit.”). Instead, the question for the court is whether
there results to the public some definite right or use in the project or undertaking to
which the property is devoted. See Dyer v. Tex. Elec. Serv. Co., 680 S.W.2d 883,
884–85 (Tex. App.—El Paso 1984, writ ref’d n.r.e.); Loyd, 956 S.W.2d at 128.
The key consideration in assessing whether a particular taking was for a public use
is whether the public is bearing a cost for which it received a benefit. See Gragg,
151 S.W.3d at 554–55.

      Here, MUD brought an eminent domain suit against the Thorntons to
condemn an easement on their property “to facilitate necessary drainage for” MUD
and “to accomplish [MUD’s] public project.” In their pleadings, the Thorntons
alleged that MUD took possession of and began an ongoing process of excavating
soil and dumping contaminated soil on their property “for a public purpose.” We
conclude that members of the public who live, work, or travel through the areas
served by MUD’s drainage project arguably will receive a benefit from improved

      12
           Again, MUD’s attack focused on the lack of evidence of public use, rather than
insufficient pleading.

                                           18
drainage. See id.; see also Harper, 216 S.W.3d at 393 (“The public benefitted
from the City’s dirt work because it was done to help construct a public landfill.”);
Dyer, 680 S.W.2d at 884–85 (condemnation for electric power line was public use
despite serving one customer because arguably would benefit public through
increased oil production by customer). Based on a liberal construction favoring
jurisdiction and taking the facts as true, see Miranda, 133 S.W.3d at 226, the
Thorntons pleaded facts that could establish that the damage to their property arose
out of or was incident to construction of a public work. See Ramirez, 431 S.W.3d
at 639–40. We conclude that the Thorntons’ pleadings sufficiently alleged facts to
show public use.

      2. The trial court committed harmful error when it granted MUD’s no-
         evidence summary judgment.

             a. A no-evidence motion for summary judgment is not a valid means
                to attack the existence of jurisdictional facts.

      Because the Thorntons have alleged facially valid takings claims, we
proceed to the next step under Miranda wherein the governmental entity can
challenge the existence of jurisdictional facts. See Miranda, 133 S.W.3d at 227.
The Texas Supreme Court has expressly sanctioned the use of a standard that
“mirrors” rule 166a(c), or a traditional motion for summary judgment. Id. at 228;
see Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012).
As the movant in this jurisdictional plea process, MUD thus has the initial burden
to prove there are no genuine issues of material fact as to at least one of the
challenged elements of intent and public use, such that it is entitled to judgment as
a matter of law. See Garcia, 372 S.W.3d at 635 (“Initially, the defendant carries
the burden to meet the summary judgment proof standard for its assertion that the
trial court lacks jurisdiction.”); Miranda, 133 S.W.3d at 227–28; City of Dallas v.

                                         19
Zetterlund, 261 S.W.3d 824, 829 (Tex. App.—Dallas 2008, no pet.) (“Given our
standard of review, the question is whether the City proved as a matter of law that
at least one of the challenged elements [of intent and public use] is absent.”). This
requirement protects a plaintiff from having to put on his case simply to establish
jurisdiction. Miranda, 133 S.W.3d at 228. But it also protects the interests of the
governmental entity by allowing it in a timely manner to extricate itself from
litigation if it is truly immune. Id.

      If the movant carries its burden, the nonmovant then has the burden to show
a disputed material fact issue exists regarding the jurisdictional issue. Garcia, 372
S.W.3d at 635; Miranda, 133 S.W.3d at 228. “[W]e must grant the plea if the
defendant presents undisputed evidence that negates the existence of the court’s
jurisdiction.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012).
However, as with a traditional motion for summary judgment, if MUD fails to
present conclusive proof of facts negating subject matter jurisdiction, the burden
does not shift to the Thorntons to establish the existence of an issue of material
fact. See Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228; Tex. State
Office of Admin. Hearings v. Birch, No. 04-12-00681-CV, 2013 WL 3874473, at
*3 (Tex. App.—San Antonio July 24, 2013, pet. denied) (mem. op.) (“If the
defendant carries its burden, the plaintiff then has the burden to show a disputed
material fact issue exists regarding the jurisdictional issue.”); Tex. Dep’t of Transp.
v. Olivares, 316 S.W.3d 89, 103 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(“[I]n a plea to the jurisdiction, a defendant must produce evidence that the trial
court lacks jurisdiction before the plaintiff has the burden to present evidence
establishing a fact question regarding jurisdiction.”); Dall. Cnty. v. Wadley, 168
S.W.3d 373, 379 (Tex. App.—Dallas 2005, no pet.) (denial of plea affirmed in
premises defect case; plaintiff “had no burden to present evidence of the County’s


                                          20
knowledge until the County had established its lack of knowledge”).

      The Thorntons rely on Green Tree Servicing, LLC v. Woods, 388 S.W.3d
785 (Tex. App.—Houston [1st Dist.] 2012, no pet.), to argue that the trial court
should not have granted summary judgment to MUD because a no-evidence
motion for summary judgment is an improper vehicle for a jurisdictional plea. In
Green Tree, our sister court was presented with and addressed the question of
“whether standing can be challenged in a no-evidence motion for summary
judgment.” 388 S.W.3d at 790. The court ultimately held that a trial court’s
subject matter jurisdiction cannot be challenged in a no-evidence motion for
summary judgment. Id. at 794. The court provided the following legal principles
as the bases for its decision:

          • Allowing a challenge to subject matter jurisdiction in a no-
            evidence motion has the effect of depriving a trial court of
            jurisdiction over a case in circumstances in which jurisdiction
            has not been affirmatively disproved. Id. at 792.
          • Permitting a movant to obtain no-evidence summary judgment
            when the nonmovant’s evidence is incomplete effectively
            deprives the trial court of jurisdiction not when jurisdiction has
            been disproved, but rather when it is uncertain. Id.
          • In the absence of evidence disproving jurisdiction, a
            jurisdictional plea can only be granted when the pleadings
            affirmatively negate jurisdiction, with an emphasis on the rule
            that a plaintiff’s good faith allegations are to be used and, if
            there is a gap in jurisdictional facts, the plaintiff should be
            allowed to replead. Id.
          • With a no-evidence motion, jurisdiction could be deprived
            without any consideration of the plaintiff’s pleadings. Id.
          • Even when a plea is granted, the case is dismissed without
            prejudice unless the plaintiff cannot remedy the defect, but a
            no-evidence summary judgment requires dismissal with
            prejudice. Id.

                                         21
          • Finally, in both a plea to the jurisdiction and a traditional
            motion for summary judgment, the defendant bears the burden
            of proving the trial court’s lack of jurisdiction. Id.

The Green Tree court thus concluded that allowing subject matter jurisdiction
challenges in no-evidence motions conflicts with the safeguards and presumptions
that protect the trial court’s jurisdiction, would deprive the trial of jurisdiction
without a showing that the court actually lacks jurisdiction, and would prevent a
party from removing any impediments to jurisdiction and then returning to court.
Id. at 794.

      The Green Tree court highlighted with particular concern situations where
the determination of subject matter jurisdiction implicates the merits of the parties’
cause of action, and indicated that the Texas Supreme Court in Miranda, 133
S.W.3d at 228, has only “specifically approved treating evidentiary challenges to
subject-matter jurisdiction like a traditional motion for summary judgment” under
rule 166a(c). Green Tree, 388 S.W.3d at 793. Allowing defendants to challenge
subject matter jurisdiction by way of no-evidence motion in such circumstances
would force plaintiffs to “put on their case simply to establish jurisdiction” and
would eliminate any burden on the defendant other than to identify the specific
ground he believes to be lacking evidentiary support. Id. at 793–94 (quoting
Miranda, 133 S.W.3d at 228); see also City of Austin v. Rangel, 184 S.W.3d 377,
382 (Tex. App.—Austin 2006, no pet.) (“The defendant cannot simply deny the
existence of jurisdictional facts and force the plaintiff to raise a fact issue.”).

      We find Green Tree to be well reasoned and persuasive.                     Here, a
determination of the trial court’s subject matter jurisdiction clearly implicates the
merits of the Thorntons’ takings claims. See Walton, 2008 WL 5100942, at *3
(Jennings intent issue involves jurisdictional facts that implicate merits); see also


                                            22
Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.—Austin 2009, no
pet.) (explaining that where “many if not most of the challenged jurisdictional facts
will also determine whether the plaintiff is entitled to relief on the merits of her
case,” jurisdictional issue implicates merits).             MUD brought a no-evidence
summary judgment motion to challenge the Thorntons’ jurisdictional facts,
specifically the constitutional taking elements of intent and public use. MUD,
however, presented no evidence of its own to establish that there was no intent on
its part and that the alleged damages to the Thorntons’ property did not arise out of
or were not incident to a public use.               The Thorntons filed a response and
accompanying evidence. Although the Thorntons did not cite Green Tree in their
response to MUD’s no-evidence summary judgment, they expressly argued that
MUD’s motion must be denied because it “improperly requires [them] to marshal
all of [their] evidence to prove each element of every cause of action.” To the
extent they even were required to, we conclude that the Thorntons preserved this
issue for our review. See Green Tree, 388 S.W.3d at 794–95 (not requiring
objection for preservation).

       Permitting MUD to challenge subject matter jurisdiction in a no-evidence
motion for summary judgment improperly shifts the jurisdictional evidentiary
burdens—effectively requiring the Thorntons to fully marshal their evidence
simply to establish jurisdiction and eliminating any burden on MUD as a
governmental entity to disprove jurisdiction through summary judgment
evidence.13 We conclude that a trial courts subject matter jurisdiction cannot be

       13
          In their brief, MUD argues that even if the Thorntons’ allegations are taken as true,
they failed to produce any evidence supporting essential elements of their claims. MUD noted
how the Thorntons would have the burden of proof at trial on their constitutional taking claims
and that MUD had moved for no-evidence summary judgment under rule 166a(i) after an
adequate time for discovery had passed. MUD, however, provided no response to Green Tree
and did not present, nor has this court found, any binding or otherwise persuasive authority that
would convince us to depart from the dictates of Miranda to sanction use of a no-evidence
                                               23
challenged in a no-evidence motion for summary judgment, see id. at 794, and the
trial court thus erred in granting MUD summary judgment as to the Thorntons’
counterclaims for inverse condemnation, nuisance, and trespass.

               b. Harm

       The Green Tree court proceeded to a harm analysis: “If the trial court could
have treated [the defendants’] motion as a plea to the jurisdiction and granted it, we
must affirm. Stated another way, if the record establishes that the trial court lacks
jurisdiction, there is no harm.” Id. at 795. However, if the pleadings and the
available record do not otherwise conclusively negate the existence of the trial
court’s jurisdiction, the plaintiff is harmed by the trial court’s no-evidence
jurisdictional plea ruling. See id.

       We already have determined that the Thorntons’ pleadings are sufficient to
facially invoke the trial court’s jurisdiction over their inverse condemnation,
nuisance, and trespass claims. Nor does any of the evidence—all of which was
presented by the Thorntons 14—affirmatively establish that the trial court lacks
jurisdiction over their taking claims. 15 In other words, it does not conclusively


summary judgment to attack subject matter jurisdiction.
       14
            The Thorntons’ summary judgment exhibits included October 25, 2012
correspondence from Shelley addressed to U.S. representative Gene Green and copied to the
Texas Commission on Environmental Quality, Harris County Attorney Vince Ryan, and Harris
County Pollution Control, regarding the county drainage project and the resulting lead
contamination to their property; a September 2011 lab report regarding lead readings on their
property; photographs of their property; excerpts from a July 2013 appraisal report; a July 2013
expert report regarding soil contamination; April 15, 2011 correspondence from Frank’s attorney
at the time to the contractor and developer regarding the alleged trespass onto and digging of the
Thorntons’ property; and an April 2011 professional engineer report regarding possible drainage
effects from the proposed subdivision containing a bid for installation of a bulkhead.
       15
           We remain aware that the jurisdictional facts significantly intertwine with the merits in
this case and thus only review the available evidence to the extent necessary to assess harm. In
Clear Channel Outdoor, where the State challenged the plaintiff’s pleadings in its jurisdictional
plea, this court indicated that “any inquiry into the evidentiary support for” the State’s assertions,
                                                 24
establish MUD’s lack of intent or that the alleged damage to the Thorntons’
property did not arise out of or incident to a public use. The Thorntons’ submitted
evidence certainly does not foreclose the possibility that MUD could have known
that its actions were causing identifiable harm to the Thorntons’ property or that
such harm was substantially certain to result from its actions, and that MUD could
have damaged their property for a public use. 16 The record does not affirmatively
show that the trial court lacked subject matter jurisdiction over the Thorntons’
counterclaims for inverse condemnation, nuisance, and trespass.

         Accordingly, we conclude that the error in granting MUD’s no-evidence
summary judgment is harmful. See Tex. R. App. P. 44.1(a); Green Tree, 388
S.W.3d at 796. We sustain the Thorntons’ third issue and do not reach their fourth
issue, as to their counterclaims for inverse condemnation, nuisance, and trespass.
See Tex. R. App. P. 47.1.




including that the State never intended to take or destroy the billboard at issue, where the State
did not present evidence to the trial court in an attempt to conclusively negate the existence of
jurisdiction, would be an “impermissible inquiry into the merits of Clear Channel’s claims.”
2008 WL 2986392, at *4 & n.4.
       16
            Although we need not reach the Thorntons’ second issue to finally dispose of this
appeal, see Tex. R. App. P. 47.1, because whether we consider any abuse of discretion by the
trial court in apparently “striking” certain portions of the Thorntons’ jurisdictional evidence, the
court’s ruling as to the Thorntons’ “negligent trespass” claim would still be correct and the court
still would have committed reversible error as to the Thorntons’ other counterclaims, it deserves
brief mention simply because it is baffling. The complained-of summary judgment order
appeared to incorporate “by the parties[’] stipulations” two previous evidentiary rulings related
to MUD’s objections to the Thorntons’ exhibits filed in response to MUD’s earlier “right to
take” summary judgment. However, our review of the record fails to reveal, and MUD concedes
that it did not file, any written objections with regard to the Thorntons’ jurisdictional summary
judgment exhibits. Nor does the record reveal any requisite rule 11 stipulation to carry forward
any such evidentiary rulings to the later proceeding. Finally, because the two sets of summary
judgment exhibits filed by the Thorntons were not identical (certain exhibits were either
changed, new, or not presented), even if MUD had made objections or the parties had entered a
stipulation, the prior evidentiary rulings do not cogently carry forward.

                                                25
                           IV.         CONCLUSION

      We affirm the trial court’s order insofar as it granted summary judgment in
favor of MUD on the Thorntons’ “negligent trespass” counterclaim. We reverse in
part the summary judgment on the Thorntons’ counterclaims for inverse
condemnation, nuisance, and trespass, and remand for further proceedings.




                                 /s/         Marc W. Brown
                                             Justice

Panel consists of Justices Boyce, Christopher, and Brown.




                                        26
