                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00119-CV


CITY OF CARROLLTON, TEXAS                                            APPELLANT

                                        V.

MILAN HAMRLA, PETRA                                                  APPELLEES
CHUDEJOVA, MICHAEL AND
LAURA BREWER, DALIA
CHAVARRIA, DIANE AND GENE
HINES, AND KEITH EFFERT


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          FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2012-70581-431

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant City of Carrollton appeals from the trial court’s order denying its

plea to the jurisdiction that asserted the trial court lacked jurisdiction over

      1
      See Tex. R. App. P. 47.4.
Appellees Milan Hamrla’s, Petra Chudejova’s, Michael and Laura Brewer’s, Dalia

Chavarria’s, Diane and Gene Hines’s, and Keith Effert’s takings claims,

negligence claims, and declaratory judgment claims brought against the City.

For the reasons set forth below, we hold that the trial court erred by denying the

City’s plea to the jurisdiction. Accordingly, we will reverse the trial court’s order

and render judgment granting the City’s plea to the jurisdiction and dismissing

Appellees’ claims.

                     II. FACTUAL AND PROCEDURAL BACKGROUND

      Appellees own homes located in a subdivision in the City; the City

approved the plat creating the subdivision in 1986.        Appellees’ homes front

Barclay Drive and back up to a drainage channel known as Dudley Branch. The

subdivision developer built a retaining wall along the lots backing up to Dudley

Branch. The retaining wall was constructed on Appellees’ lots, over an existing

City sewer easement.      Problems with the retaining wall occurred in 1987, at

various times in the 1990s, in 2007, and again in 2009. The City repaired early

problems with proceeds from the developer’s bond and paid a portion of some

subsequent repairs, but declined to repair the 2009 problem.

      The 2009 problem was a slope failure that occurred after a night of heavy

rain. As water from Appellees’ properties flowed to the retaining wall, it stopped

at the wall, was absorbed downward, and washed dirt from Appellees’ properties

out under the retaining wall into the Dudley Branch right of way owned by the



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City. This slope failure caused the retaining wall to crumble in places, affecting

the value of Appellees’ properties.

      After the City declined to repair the retaining wall following the 2009 slope

failure, Appellees filed the instant suit alleging takings claims, negligence claims,

and declaratory judgment claims. The City filed a plea to the jurisdiction, arguing

that the trial court lacked subject matter jurisdiction because the City possessed

governmental immunity. The trial court denied the City’s plea to the jurisdiction.

This interlocutory appeal ensued.2

             III. STANDARD OF REVIEW FOR PLEAS TO THE JURISDICTION

      A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for

lack of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004). A plea to the jurisdiction may be utilized to challenge whether the

plaintiff has met its burden of alleging jurisdictional facts or to challenge the

existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 226–27 (Tex. 2004). We review de novo a trial court’s ruling on

a plea to the jurisdiction. Id. at 228.

      When a plea to the jurisdiction challenges the pleadings, we determine

whether the plaintiff has met its burden of alleging facts that affirmatively

demonstrate that the trial court has subject matter jurisdiction. City of Keller v.

Hall, 433 S.W.3d 708, 712–13 (Tex. App.—Fort Worth 2014, pet. denied). We

      2
       See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2015);
Tex. R. App. P. 28.1(a).

                                          3
construe the pleadings liberally in favor of the plaintiff, accept all factual

allegations as true, and look to the plaintiff’s intent. Heckman v. Williamson Cty.,

369 S.W.3d 137, 150 (Tex. 2012).

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, our review mirrors that of a traditional summary judgment motion. Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); see also

Tex. R. Civ. P. 166a(c). We take as true all evidence favorable to the plaintiff,

and we indulge every reasonable inference and resolve any doubts in the

plaintiff’s favor. Miranda, 133 S.W.3d at 228. The defendant carries the initial

burden of establishing that the trial court lacks jurisdiction. Garcia, 372 S.W.3d

at 635. If the defendant meets that burden, the plaintiff must then demonstrate

that a disputed material fact exists regarding the jurisdictional issue. Id. If a fact

issue exists, the trial court should deny the plea. Id. But if the evidence is

undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue,

the plea must be granted as a matter of law. Id.

                          IV. APPELLEES’ TAKINGS CLAIMS

      In its first issue, the City argues that the trial court erred by denying its plea

to the jurisdiction as to Appellees’ takings claims; the City contends that it is

entitled to governmental immunity because Appellees have not pleaded valid

takings claims.3


      3
       The City also contends that even if Appellees pleaded valid takings
claims, the evidence demonstrates that the trial court lacked jurisdiction over
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                                  A. The Law

      Sovereign immunity protects the State from lawsuits for money damages.

Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.

2002). Political subdivisions of the state, including cities, are entitled to such

immunity—referred to as “governmental immunity”—unless it has been waived.

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).

      Governmental immunity is waived for valid takings claims. El Dorado Land

Co. v. City of McKinney, 395 S.W.3d 798, 801 (Tex. 2013); City of Dallas v. VRC

LLC, 260 S.W.3d 60, 64 (Tex. App.—Dallas 2008, no pet.). A takings claim is

rooted in the takings clause of the Texas Constitution—article I, section 17—

which provides, in pertinent part, 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 plaintiff fails to allege a valid takings claim, governmental

immunity continues to apply, and a trial court is without subject matter

jurisdiction. Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004,

no pet.); Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 (Tex. App.—Houston

[14th Dist.] 2002, no pet.).

those claims. Because we hold that Appellees have not alleged valid takings
claims, we need not address the City’s alternative argument that challenges the
existence of jurisdictional facts to support those claims. See Tex. R. App. P.
47.1.

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      To plead a valid takings claim, a plaintiff must plead that the governmental

entity (1) intentionally performed certain acts in the exercise of lawful authority,

(2) that such acts resulted in taking, damaging, or destroying the plaintiff’s

property, and (3) the taking was for public use. Gen. Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The intent element is closely

tied to the public use element. See City of Dallas v. Jennings, 142 S.W.3d 310,

313–14 (Tex. 2004) (discussing link between intent element and public use

element); Harris Cty. Flood Control Dist. v. Kerr, 445 S.W.3d 242, 254 (Tex.

App.—Houston [1st Dist.] 2013) (same), aff’d, No. 13-0303, 2015 WL 3641517

(Tex. June 12, 2015). A governmental entity acts intentionally if it (1) knows that

the specific act is causing identifiable harm or (2) knows that the specific harm 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 actions. Jennings, 142 S.W.3d at 314.

      For purposes of pleading the public use element of a takings claim, the

property damage must have occurred in order to effectuate a public benefit. See

City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 827 (Tex. App.—Austin 2014,

no pet.) (“Unless it was substantially certain to occur, the fact that some property

ultimately suffered harm as a result of the City’s power-transmission activities

undertaken for the benefit of the public does not mean that the property was

damaged in order to effectuate that public benefit.”). When property damage is

the unintended result of the government’s act, there is no public benefit and it

                                         6
cannot be said that the property was “taken or damaged for public use.”

Jennings, 142 S.W.3d at 313; Liberty Mut. Ins., 431 S.W.3d at 827.              Mere

negligence that eventually contributes to the destruction of property is not a

taking. City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); City of El Paso

v. Ramirez, 431 S.W.3d 630, 635 (Tex. App.—El Paso 2014, pet. denied).

                     B. Application of the Law to the Facts

      In its plea to the jurisdiction, the City argued that Appellees did not plead

valid takings claims. Appellees explained in their live pleading that at the back of

their properties are fences, a retaining wall, and below the retaining wall, a slope

down to the creek channel. Appellees claimed that the City took or damaged

their properties by causing a slope failure that moved dirt from the Appellees’

properties down to the creek channel. Appellees alleged that the City caused the

slope failure by (a) failing to enforce ordinances, (b) not building or maintaining

the slope from their properties to the creek bed, (c) not fixing erosion in the

creek, (d) not keeping water in Barclay Drive (the street that runs in front of

Appellees’ properties) off their properties, and (e) failing to keep water from

Barclay Drive from soaking into the ground when it hit the retaining wall.

      While Appellees have made numerous allegations concerning the City’s

inactions, they have failed to allege that the City intended the slope failure to

occur as a result of a specific action or inaction, or that the City was substantially

certain that the slope failure would occur at the time that the City failed to take a

specific action. See Jennings, 142 S.W.3d at 314. Moreover, Appellees have

                                          7
not alleged that the property damage occurred in order to effectuate a public

benefit. See Liberty Mut. Ins., 431 S.W.3d at 827 (“Unless it was substantially

certain to occur, the fact that some property ultimately suffered harm as a result

of the City’s power-transmission activities undertaken for the benefit of the public

does not mean that the property was damaged in order to effectuate that public

benefit.”).

       In City of Austin v. Liberty Mutual Insurance, a wildfire allegedly started

when the City of Austin’s overhead distribution lines came into contact with each

other; several homes were destroyed by the fire. 431 S.W.3d at 821. The City of

Austin filed a motion to dismiss the homeowner’s takings claims, arguing that the

homeowners did not sufficiently allege the requisite intent and public use

elements. Id. at 822. While the homeowner’s pleading contained a conclusory

allegation that “a wildfire is a substantially certain result” of the City of Austin’s

lack of a maintenance program, the court of appeals held that the homeowners

had not alleged any facts showing that the fire was substantially certain to occur

as a result of any specific decision by the City of Austin. Id. at 826. Similarly, the

court of appeals held that the homeowners did not allege or explain how the

damage to their property advanced any public benefit; rather, the fire was simply

an “unintended result of the government’s act or policy.” Id. at 826–27.

       Like the homeowners in Liberty Mutual, here, Appellees have not alleged

that the City knew or was substantially certain that the slope failure would occur

as a result of a specific action or inaction taken by the City, nor have Appellees

                                          8
alleged that Appellees’ property damage occurred in order to advance a public

benefit. Even construing Appellees’ pleading liberally in their favor, the pleading

fails to allege facts constituting a takings claim because Appellees failed to meet

their burden of alleging facts that affirmatively demonstrate that the trial court

possesses subject matter jurisdiction. See Bell, 146 S.W.3d at 825 (holding that

the trial court properly granted the City of Dallas’s motion to dismiss when the

plaintiffs failed to plead a valid takings claim). Accordingly, we sustain the City’s

first issue.

                        V. APPELLEES’ NEGLIGENCE CLAIMS

       In its second issue, the City argues that the trial court erred by denying its

plea to the jurisdiction as to Appellees’ negligence claims; the City argues that

Appellees failed to raise a fact issue concerning the required causal nexus

between the City’s use of motor-driven vehicles or motor-driven equipment and

their property damage necessary to waive the City’s governmental immunity

under the Texas Tort Claims Act (TTCA).

                                    A. The Law

       Under the TTCA, governmental immunity is waived for two types of claims:

(1) those involving property damage, personal injury, or death arising from an

employee’s operation or use of a motor-driven vehicle or motor-driven equipment

and (2) those involving personal injury or death caused by a condition or use of

tangible personal property or real property. Tex. Civ. Prac. & Rem. Code Ann. §

101.021 (West 2011).

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      The Texas Supreme Court has “consistently required a nexus between the

operation or use of the motor-driven vehicle or equipment and a plaintiff’s

injuries.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003).

This nexus requires more than the mere involvement of property; rather, the

vehicle or equipment’s use must have actually caused the injury. Id.; Texas Nat.

Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001). Thus, the

operation or use of a motor-driven vehicle or motor-driven equipment “does not

cause injury if it does no more than furnish the condition that makes the injury

possible.”   Whitley, 104 S.W.3d at 543 (quoting Dallas Cty. Mental Health &

Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)). When an

alleged cause is “geographically, temporally, or causally attenuated from the

alleged effect, that attenuation will tend to show that the alleged cause did no

more than furnish the condition that made the effect possible.” City of Dallas v.

Hillis, 308 S.W.3d 526, 532 (Tex. App.—Dallas 2010, pet. denied).

                     B. Application of the Law to the Facts

      In their live pleading, Appellees alleged that “[a]ll of [the City’s] negligent

acts involved the use of motor vehicles or motor driven equipment.” The City

argued in its plea to the jurisdiction that there was not a causal nexus between its

use of motor-driven vehicles or motor-driven equipment and Appellees’ property

damage.      In response to the City’s plea to the jurisdiction, several of the

individual Appellees provided affidavits that stated that “in the years” that they

lived on Barclay Drive they saw City employees performing work on Barclay

                                        10
Drive and Dudley Branch while using motor-driven vehicles and motor-driven

equipment. The affidavits also stated that on one occasion the homeowners saw

a City truck moving rocks onto Dudley Branch.         One of the affidavits also

described contractors—whom the homeowner believed to be working for the

City—using a bulldozer in 2005 to grade the soil in Dudley Branch and described

other occasions in 2010 where a City public works crew graded part of the creek

bed using motor-driven equipment. Appellees also produced five pages of the

City’s “Drainage Work Order Tracking Logs” that reflect that the City performed

certain backfill, mulching, and excavation on Dudley Branch in 2010.

      While this evidence reflects that the City performed some work on Dudley

Branch and Barclay Drive using motor-driven vehicles and motor-driven

equipment at various times over the last three decades, it is not evidence that the

use of motor-driven vehicles or motor-driven equipment actually caused the

slope failure and the resulting damage to Appellees’ property. See Whitley, 104

S.W.3d at 543; White, 46 S.W.3d at 869. Taking as true all evidence favorable to

Appellees, and indulging every reasonable inference in their favor, no evidence

exists—that is, Appellees failed to demonstrate that a disputed material fact

exists—that the City’s use of motor-driven vehicles and motor-driven equipment

in any way caused the slope failure or Appellees’ resulting property damage.

See Whitley, 104 S.W.3d at 543; San Antonio Water System v. Overby, 429

S.W.3d 716, 722–23 (Tex. App—San Antonio 2014, no pet.) (holding that

“requisite nexus is not present” in case involving public utility company’s use of

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motor-driven equipment to maintain alley behind plaintiff’s property when

condition of alley led to property damage).

      Because Appellees have not demonstrated that a disputed issue of

material fact exists concerning the nexus between their property damage and the

City’s use of motor-driven-vehicles and motor-driven equipment, we sustain the

City’s second issue.

                VI. APPELLEES’ DECLARATORY JUDGMENT CLAIMS

      In its third issue, the City argues that the trial court erred by denying its

plea to the jurisdiction on Appellees’ declaratory judgment claims; the City argues

that because Appellees are not seeking to challenge the validity of any

ordinance, statute, or franchise, no waiver of governmental immunity exists.

                                   A. The Law

      The purpose of the Uniform Declaratory Judgments Act (UDJA) is to

establish existing “rights, status, and other legal relations whether or not further

relief is or could be claimed.” Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a)

(West 2015). Section 37.004(a) specifically provides as follows:

            A person interested under a deed, will, written contract, or
      other writings constituting a contract or whose rights, status, or other
      legal relations are affected by a statute, municipal ordinance,
      contract, or franchise may have determined any question of
      construction or validity arising under the instrument, statute,
      ordinance, contract, or franchise and obtain a declaration of rights,
      status, or other legal relations thereunder.




                                        12
Id. § 37.004(a) (West 2015). The UDJA is not a grant of jurisdiction; it is a

procedural device for deciding cases already within a court’s jurisdiction.

Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Consequently, immunity

will bar an otherwise proper UDJA claim that has the effect of establishing a right

to relief against the State for which the legislature has not waived immunity. Tex.

Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011);

Mustang Special Util. Dist. v. Providence Vill., 392 S.W.3d 311, 315 (Tex. App.—

Fort Worth 2012, no pet.).

       The UDJA thus provides a limited waiver of governmental immunity for

only certain declaratory judgment claims that challenge the validity of a statute,

ordinance, contract, or franchise. Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a);

City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 530 (Tex. App.—

Austin 2014, no pet.). It is not enough for a litigant to challenge the actions of a

governmental entity under a statute, ordinance, contract, or franchise; the validity

of the statute, ordinance, contract, or franchise itself must be challenged for

governmental immunity to be waived. See Tex. Dep’t of Transp. v. Sefzik, 355

S.W.3d 618, 622 (Tex. 2011) (“But Sefzik is not challenging the validity of a

statute; instead, he is challenging TxDOT’s actions under it, and he does not

direct us to any provision of the UDJA that expressly waives immunity for his

claim.”).

       Absent the limited waiver for claims challenging the validity of a statute,

ordinance, contract, or franchise, the UDJA does not extend a trial court’s

                                        13
jurisdiction, and a litigant’s request for declaratory relief does not confer

jurisdiction on a court or change the nature of the underlying suit. IT-Davy, 74

S.W.3d at 855.    And a plaintiff cannot circumvent governmental immunity by

simply characterizing a suit for money damages as a declaratory judgment claim.

Id. at 856; Town of Flower Mound v. Rembert Enters., Inc., 369 S.W.3d 465, 474

(Tex. App.—Fort Worth 2012, pet. denied).

                    B. Application of the Law to the Facts

      Appellees seek declarations that (a) the retaining wall is part of the City’s

infrastructure, (b) the City is responsible for the replacement and repair of the

retaining wall, and (c) the City is obligated to comply with certain ordinances,

rules, regulations, and standards with regard to slope stability, retaining walls,

and drainage.4 None of the declarations sought by Appellees challenges the

validity of a statute, ordinance, contract, or franchise; at most, the declarations


      4
         In their brief, Appellees make a passing reference to also seeking a
declaration that the City’s employees failed to perform certain ministerial acts.
Because Appellees failed to seek that relief in their live pleading, we do not
consider it here. See Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859,
871 (Tex. App.—Dallas 2005, no pet.) (“A claim that was not presented to the
trial court cannot be considered on appeal.”). Moreover, the proper defendant for
that type of ultra vires claim is the governmental official whose acts or omissions
allegedly violated the plaintiff’s rights, not the governmental entity itself. See
Sefzik, 355 S.W.3d at 620 (citing City of El Paso v. Heinrich, 284 S.W.3d 366,
372–73 (Tex. 2009)) (“Heinrich held that the proper defendant in an ultra vires
action is the state official whose acts or omissions allegedly trampled on the
plaintiff’s rights, not the state agency itself.”); Montrose Mgmt. Dist. v. 1620
Hawthorne, Ltd., 435 S.W.3d 393, 413 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied) (“The proper defendants in an ultra vires action are those officials
whose acts or omissions allegedly violated the plaintiff’s rights.”).

                                        14
sought by Appellees challenge the City’s purported actions or inactions under

ordinances, rules, regulations, and standards. See Sefzik, 355 S.W.3d at 622.

Appellees cannot recast the City’s purported actions or inactions forming the

basis of their takings and negligence claims as actions or inactions that are

invalid under ordinances, rules, regulations, or standards and thereby create—by

virtue of the UDJA—a right of recovery for which the legislature has not waived

immunity. See Sawyer Trust, 354 S.W.3d at 388. The UDJA is inapplicable here

to waive the City’s governmental immunity. See Sefzik, 355 S.W.3d at 622.

      Appellees acknowledge in their brief that governmental immunity is not

waived when a party relies solely on the UDJA to establish jurisdiction.

Appellees then argue that they have established jurisdiction independent of their

UDJA claims, presumably referring to having established jurisdiction through

their takings and negligence claims. As noted above, however, the trial court

lacked subject matter jurisdiction over Appellees’ takings and negligence claims

because the City’s governmental immunity is not waived with respect to those

claims.   Thus, because Appellees have not established that the trial court

possessed jurisdiction independent of their UDJA claims and because no waiver

exists here under the UDJA, we sustain the City’s third issue.

                                 VII. CONCLUSION

      Having sustained the City’s three issues, we reverse the trial court’s order

denying the City’s plea to the jurisdiction and render judgment granting the City’s

plea to the jurisdiction and dismissing Appellees’ claims.

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                                          /s/ Sue Walker
                                          SUE WALKER
                                          JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J., concurs without opinion.

DELIVERED: January 7, 2016




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