                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00061-CV


THE CITY OF KELLER                                                 APPELLANT

                                          V.

KIMBERLEE DIANE MEADORS                                            APPELLEES
HALL AND A. THOMAS HALL


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         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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                             DISSENTING OPINION

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      The majority opinion, while thorough and meticulously written, strays from

the appropriate standard of review as mandated by the supreme court. Because

this standard of review dictates a different result, I dissent.
    I. APPLICABLE STANDARD OF REVIEW AND BURDENS OF PROOF

      The standard of review and the resultant burdens of proof routinely

prescribe an appeal’s direction and result. See W. Wendell Hall et al., Hall’s

Standards of Review in Texas, 42 St. Mary’s L.J. 3, 13 (2010). Therefore, it is

imperative to carefully state and follow the applicable standard.

      We have been granted specific appellate jurisdiction over interlocutory

appeals of orders that either grant or deny pleas to the jurisdiction by a

governmental unit. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West

Supp. 2013). A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

There are two types of pleas to the jurisdiction: (1) a pleadings challenge, which

examines whether the plaintiff has alleged facts that affirmatively demonstrate

the trial court’s subject-matter jurisdiction, and (2) a challenge to the existence of

jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004).

      Here, the City proffered evidence in support of its plea and raised the

absence of any evidence to show the City knew or was substantially certain that

damage would occur as a result of the City’s complained-of actions, rendering

the City’s plea a challenge to the existence of jurisdictional facts. Thus, the City’s

jurisdictional challenge is to be decided under a traditional summary-judgment

standard in the trial court and reviewed de novo on appeal. See City of El Paso

v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Miranda, 133 S.W.3d at 227–28.


                                          2
See generally Tex. R. Civ. P. 166a(c) (traditional summary-judgment rule

providing movant entitled to judgment as a matter of law if “there is no genuine

issue as to any material fact” regarding “the issues expressly set out in the

motion or in an answer or any other response”).

      Once the Halls sufficiently pleaded an inverse-condemnation claim

showing the trial court’s subject-matter jurisdiction, the City had the initial burden

to then adduce evidence establishing that the trial court lacked jurisdiction as a

matter of law. Miranda, 133 S.W.3d at 225–26, 228. The burden then shifted to

the Halls to show that a genuine issue as to any material fact existed regarding

the trial court’s jurisdiction. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113,

116 (Tex. 2010); Miranda, 133 S.W.3d at 228. In other words, the Halls had to

raise a genuine issue as to whether the City “knew (not should have known) that

flooding was substantially certain.” City of Keller v. Wilson, 168 S.W.3d 802, 829

(Tex. 2005). 1 This required them to bring forth evidence of “objective indicia of

intent” showing the City knew harm to the property would result from the City’s

actions. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). If


      1
        The majority opinion points out that Wilson was before the supreme court
after a jury verdict and, thus, asserts that Wilson is not instructive regarding what
the Halls had to demonstrate to avoid the City’s jurisdictional plea. Majority Op.
39. Although the majority opinion correctly points out that the Halls were not
required to show that the City knew damage to the Hall’s property would result by
a preponderance of the evidence or as a matter of law, the Halls were required to
raise a genuine issue of material fact showing that the City knew or was
substantially certain that damage to the Halls’ property would result at the time it
took the complained-of actions.


                                          3
a genuine issue concerning jurisdiction is raised by the submitted evidence, the

trial court cannot grant the plea to the jurisdiction before that fact issue is

resolved by the fact-finder. Miranda, 133 S.W.3d at 227–28. If the relevant

evidence is undisputed or does not raise a genuine issue as to any material fact

regarding jurisdiction, the trial court rules on the plea to the jurisdiction as a

matter of law. Id. at 228.

                              II. SCOPE OF REVIEW

                    A. CONSIDERATION OF THE ENTIRE RECORD

      In our de novo review of the trial court’s denial of the City’s plea, we

consider the entire record, as it existed at the time the trial court denied the City’s

plea, in the light most favorable to the Halls and indulge every reasonable

inference and resolve any doubts in favor of the Halls. Wilson, 168 S.W.3d at

824; Hall, supra, at 155. The majority opinion states that it considered evidence

that was excluded by the trial court in its de novo review of the trial court’s denial

of the plea. Majority Op. 44. The City argues on appeal that the trial court

abused its discretion by excluding the evidence.

      However, appellate review of a plea to the jurisdiction “generally mirrors

that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”

Miranda, 133 S.W.3d at 228; cf. Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000) (recognizing standard for granting

summary judgment under Fed. R. Civ. P. 56 mirrors standard for judgment as a

matter of law under Fed. R. Civ. P. 50(a)). Under a summary-judgment review,


                                          4
an appellate court may not consider stricken portions of the record because such

evidence is not a part of the summary-judgment record. See Trudy’s Tex. Star,

Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no pet.);

Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no

pet.). Therefore, if the trial court correctly struck the City’s evidence or if the

aggrieved party failed to properly challenge the trial court’s ruling on appeal, that

evidence cannot be part of our de-novo review of the trial court’s denial of the

plea to the jurisdiction because such evidence was not part of the record when

the trial court ruled on the City’s plea. See Kaufman v. Islamic Soc’y of Arlington,

291 S.W.3d 130, 137 n.15 (Tex. App.—Fort Worth 2009, pet. denied); cf. Hall,

supra, at 155 (“The appellate court ‘can consider the record only as it existed at

the time summary judgment was entered.’” (emphasis added) (citation omitted)).

      Accordingly, this court first must determine whether the trial court abused

its discretion in excluding the City’s evidence as urged by the City on appeal.

See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (“The court of

appeals [in reviewing the trial court’s grant of summary judgment] erred in

considering Elwell’s causation testimony from the bill of exceptions without

having first determined, pursuant to properly assigned error, that the trial court

erred in refusing to admit the testimony and reconsider its decision to exclude

Elwell’s causation opinions.”)    If the trial court did abuse its discretion, the

excluded evidence may be considered in a de novo review of the plea to the

jurisdiction. If it did not, an appellate court’s de novo review may not consider the


                                         5
appropriately excluded evidence. In short, application of the standard of review

may be had only after a determination of its scope. Thus, I disagree with the

majority opinion’s assertion that we need not determine whether the trial court

abused its discretion in excluding the evidence. Majority Op. 44–45.

          B. EXCLUSION OF THE CITY’S EVIDENCE BASED ON NON-DISCLOSURE

      During discovery, a deadline was set by which testifying experts were

required to be disclosed to the opposing party. See Tex. R. Civ. P. 194.2(f),

195.2. The City filed a summary-judgment motion and plea to the jurisdiction to

which it attached several exhibits. The Halls objected to several of the City’s

attached exhibits because they constituted “hearsay” and “expert testimony

offered without designation of expert witness.”       Regarding the Halls’ non-

designated-expert objection, the City responded that the exhibits were either “on

file and were served on August 11, 2011,” or “government records or reports [that

are] authenticated or are self-authenticating.” The trial court excluded seventeen

of the City’s exhibits—Exhibits A-8 through A-12, A-14 through A-21, and C

through F—on the basis that they constituted expert testimony offered without

timely prior disclosure. 2 The City asserts that (1) the disclosure requirements do


      2
        Regarding Exhibit A-13, the trial court checked both “Sustained” and
“Overruled” regarding the Halls’ objection that the exhibit constituted inadmissible
hearsay. However, the trial court specifically noted that it overruled the Halls’
hearsay objections to “exhibits A-8 through A-21” because those exhibits were
“not offered to prove [the] truth of matter asserted, and thus [are] not hearsay.”
Therefore, the Halls’ hearsay objections were expressly overruled. The trial court
checked neither “Sustained” nor “Overruled” regarding the Halls’ objection to
Exhibit A-13 on the basis that it was non-designated expert testimony.

                                         6
not apply to the exhibits at issue and (2) the disputed exhibits were timely

produced to the Halls during discovery.

      First, it must be noted that two of the City’s exhibits later excluded by the

trial court—Exhibits A-14 and A-21—were attached to the Halls’ response to the

City’s plea to the jurisdiction. Therefore, these exhibits were a part of the record

before the trial court when it denied the City’s plea to the jurisdiction, and this

court may also consider them.

      The remaining fifteen exhibits at issue were all excluded on the basis that

the City had failed to timely disclose as experts the author of each exhibit. 3 A

trial court abuses its broad discretion in excluding evidence if it acts without

reference to any guiding rules or principles. Highland Capital Mgmt., L.P. v.

Ryder Scott Co., 402 S.W.3d 719, 747 (Tex. App.—Houston [1st Dist.] 2012, no



Accordingly, the record—the trial court’s specific notation overruling the hearsay
objection and lack of any ruling on the Halls’ objection based on non-
designation—reflects that Exhibit A-13 was not excluded. See Tex. R. App. P.
33.1(a); cf. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999,
pet. denied) (holding grant of summary judgment implicitly sustained movant’s
objections to nonmovants’ summary-judgment evidence “[b]ecause the affidavits
were specifically and extensively objected to in [movant’s] written objections and
motion to strike the affidavits”).
      3
        It is unclear whether the Halls argued to the trial court that the sponsoring
affiant was an undesignated expert or if the authors of each exhibit had not been
properly designated as experts. In their brief on appeal, they stated that the City
attempted to introduce “expert opinions and testimony through certain city
records of undesignated experts.” But the Halls did not object to the sponsoring
affiant’s affidavit in the trial court. Thus, I conclude that the Halls are not arguing
for the first time on appeal that the sponsoring affiant was an undesignated
expert witness.


                                          7
pet.) (op. on reh’g).   A party is entitled to discover information regarding an

opponent’s (1) testifying experts and (2) consulting experts whose mental

impressions or opinions have been reviewed by a testifying expert. Tex. R. Civ.

P. 192.3(e). A party may not introduce into evidence any information that was

not timely disclosed during discovery unless the trial court finds good cause or

lack of unfair surprise. See Tex. R. Civ. P. 193.6; Carbonara v. Tex. Stadium

Group, 244 S.W.3d 651, 657 (Tex. App.—Dallas 2008, no pet.).

      The excluded exhibits were documents prepared by either the City or a

federal governmental agency in preparation for the City’s proposed project,

communications between the Halls and the City regarding the project, or

excerpts from federal agencies’ reports regarding historical atmospheric and

storm data in the area of the project.        The exhibits were attachments to an

affidavit by the City’s secretary, the official custodian of the City’s public records,

who stated that the attachments were filed with “the City’s offices” and were part

of the City’s public records, regularly made and preserved by the City. These

exhibits cannot be characterized as expert testimony subject to exclusion for a

lack of timely designation. The exhibits were not testimonial, were part of the

City’s regularly-kept public records, and did not contain any expert testimony;

thus, the authors of those exhibits did not have to be timely designated as

experts. See Tex. R. Evid. 803(8); McRae v. Echols, 8 S.W.3d 797, 799–800

(Tex. App.—Waco 2000, pet. denied); Harvey Brown, Daubert Objections to

Public Records: Who Bears the Burden of Proof?, 39 Hous. L. Rev. 413, 414–15


                                          8
(2002). Additionally and as the City argued in the trial court, the majority of the

exhibits that were excluded on the basis that the authors were not timely

designated as experts were specifically provided to the Halls during discovery

and, therefore, the information could not have surprised them. See Tex. R. Civ.

P. 193.6.    Because the challenged exhibits were not subject to the expert-

disclosure rule, the trial court abused its discretion by excluding the exhibits on

that basis. Therefore, they should be considered in this court’s review of the plea

to the jurisdiction as the majority opinion does.

      The majority opinion states that an additional reason that the excluded

evidence should not be considered (although the majority opinion ultimately does

consider the evidence in its review) is the City’s failure to discuss the relevance

of the evidence or any harm arising from its exclusion. Majority Op. 41–42, 44. I

disagree. In the City’s discussion of what it knew at the time it approved the

project and in arguing that the trial court erred by concluding it had subject-matter

jurisdiction, the City relies on and specifically cites to the excluded evidence. It is

clear that the City recognized and argued the relevance of the excluded evidence

and the resultant harm from its exclusion.

                   C. APPLICATION TO FAILURE TO EXCLUDE THE
                    CITY’S EVIDENCE ON THE BASIS OF HEARSAY

      The Halls assert in a cross-point that the trial court erred by overruling their

objections to the disputed exhibits on the basis of hearsay. The City asserts that

because the Halls seek to alter the trial court’s “judgment or other appealable



                                          9
order,” they were required to file a separate notice of appeal in order to

appropriately raise this argument. Tex. R. App. P. 25.1(c). But the Halls are not

seeking to alter the appealable order denying the City’s plea to the jurisdiction or

to receive more favorable relief than that granted by the trial court; thus, the Halls

were not required to file a separate notice of appeal in order to argue alternate

theories supporting the trial court’s exclusion of the City’s evidence. See Oak

Park Townhouses v. Brazosport Bank of Tex., N.A., 851 S.W.2d 189, 190 (Tex.

1993); R.R. Comm’n v. Coppock, 215 S.W.3d 559, 564 (Tex. App.—Austin 2007,

pet. denied); see also Dandridge v. Williams, 397 U.S. 471, 475 n.6, 90 S. Ct.

1153, 1156 n.6 (1970).

      The exhibits were not hearsay evidence, and the Halls made no attack on

their trustworthiness.   See Tex. R. Evid. 803(8).       The Halls assert that the

exhibits, while public records and reports, contain expert opinions subject to

exclusion.   In short, the Halls are merely recasting their expert-designation

argument as a hearsay argument. Neither argument has merit, and the trial court

did not abuse its discretion for failing to exclude the exhibits on the basis of

hearsay. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 164, 167, 109 S. Ct.

439, 447, 448–49 (1988) (interpreting Fed. R. Evid. 803(8) and holding that

public-record hearsay exception includes opinions and other evaluative materials

contained in government reports that set forth “factual findings” unless there are

indications of untrustworthiness).       Because the exhibits were improperly




                                         10
excluded, the scope of review of the trial court’s denial of the City’s plea to the

jurisdiction should include the excluded exhibits.

III. GOVERNMENTAL IMMUNITY AND INVERSE-CONDEMNATION CLAIMS

      A governmental entity is not entitled to governmental immunity for an

inverse-condemnation claim if (1) the entity intentionally performed certain acts

(2) that resulted in a taking of property (3) for public use. State v. Holland, 221

S.W.3d 639, 643 (Tex. 2007); see also Tex. Const. art. I, § 17. The City claims

that it is entitled to governmental immunity, which divested the trial court of

subject-matter jurisdiction, because there is no evidence that it acted intentionally

in taking the complained-of actions. This required culpable mental state has

been clearly defined by the supreme court:

      For purposes of article I, section 17, a governmental entity acts
      intentionally if it knows either “that a specific act [was] causing
      identifiable harm” or “that the specific property damage [was]
      substantially certain to result from” the act. A governmental entity is
      substantially certain that its actions will damage property only when
      the damage is “necessarily an incident to, or necessarily a
      consequential result of the [entity’s] action.” The government’s
      knowledge must be determined as of the time it acted, not with
      benefit of hindsight.

City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009) (quoting City of

Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004)).

      The City’s intent as defined in Pollock must be established under a

“heightened intent standard.” City of Arlington v. State Farm Lloyds, 145 S.W.3d

165, 168 (Tex. 2004). “‘Substantially certain’ does not mean flooding is possible,

at increased risk, or even more likely than not.” Harris Cnty. Flood Control Dist.


                                         11
v. Kerr, No. 01-11-00014-CV, 2013 WL 842652, at *17 (Tex. App.—Houston [1st

Dist.] Mar. 7, 2013, pet. filed) (citing Pollock, 284 S.W.3d at 821). In evaluating

the objective indicia of the City’s intent, a court must evaluate any evidence

regarding what the City was told about the consequences of the actions before

the City took the complained-of action. Wilson, 168 S.W.3d at 829. Further,

mere negligence that eventually contributes to property damage does not amount

to an unconstitutional taking. Gragg, 151 S.W.3d at 554. Pollock also cautions

that the City’s intent is determined at the time it acted and is not looked at

through the distorting effects of later-acquired knowledge. Pollock, 284 S.W.3d

at 821.    With these important review standards in mind, I now turn to the

evidence the trial court was in a position to consider at the time it ruled on the

City’s plea.

                         IV. THE HALLS’ PLEADINGS

      As stated above, the Halls first were required to plead facts affirmatively

showing the trial court’s subject-matter jurisdiction. See Miranda, 133 S.W.3d at

225–26. The Halls alleged that the following actions taken by the City resulted in

flood waters pooling and forming a retaining pond on the Halls’ property:

   1. Replacing the bridge located on Keller Smithfield Road, which passed over
      Big Bear Creek;

   2. Raising the road bed of Keller Smithfield Road;

   3. Widening the creek bed of Big Bear Creek as it passed under the bridge
      on Keller Smithfield Road;




                                        12
   4. Allowing improvements to surrounding properties, which changed the
      elevations and drainage characteristic of the properties; and

   5. Authorizing development of other properties by other persons.

The Halls asserted that, by replacing the bridge, raising the road, and widening

the creek bed, 4 the City “intended to increase the water flow from its property and

the creek bed through the Hall[s’] [p]roperty” and “knew that the resulting effect

would be to cause rainfall and runoff to pool and flood the [p]roperty while

preventing and saving the [Keller Smithfield] road and the adjacent city park from

flooding.”

      In asserting flooding of their property resulted from the City’s actions, they

pointed to a June 18, 2007 “significant rainfall” and “other periods of rainfall,

some substantial, some relatively insubstantial.”       The Halls asserted that the

“other periods of rainfall,” resulting in flooding of their property, “demonstrate the

continuing ongoing nature of [the City’s] unlawful taking of the [p]roperty for

public use, and that the [p]roperty continues to be, and will in the future continue

to be, effectively a holding or retention pond for flood waters in Bear Creek.” The

Halls assert that the City had knowledge of the flooding occurring after “other

periods of rainfall,” but “failed and refused, and continues to fail and refuse, to

eliminate the problem.”




      4
        I will collectively refer to these actions, which were all part of the so-called
“Keller Town Center,” as “the project.”


                                          13
      It is important to note that, in their petition, they specifically allege the

City’s intent only as it related to the project, i.e., replacing the bridge, raising the

road, and widening the creek bed. In any event, no party asserts that the Halls

did not sufficiently plead an inverse-condemnation claim invoking the trial court’s

subject-matter jurisdiction.

                          V. THE CITY’S INITIAL BURDEN

      Once the Halls sufficiently pleaded an inverse-condemnation claim, the

City bore the burden to adduce evidence through its plea to the jurisdiction

establishing that the trial court lacked jurisdiction as a matter of law.          The

supreme court has stated that this burden requires the City to “assert[] and

support[] with evidence that the trial court lacks subject matter jurisdiction.”

Miranda, 133 S.W.3d at 228. In so asserting, the City focused on the intent

element required for inverse-condemnation claims and argued that the evidence

showed it did not have the requisite intent to cause damage to the Halls’ property

“when it took the actions complained of,” namely improvements to Keller

Smithfield Road, replacement of the bridge on Keller Smithfield Road, and raising

Keller Smithfield Road.

      The majority opinion fully discusses the City’s evidence submitted in

support of its plea to the jurisdiction. Majority Op. 19–28. I disagree with the

majority opinion’s repeated statements that it “assumes” the City’s proffered

evidence relates to the Halls’ property. Majority Op. 23–25, 28. This evidence

was submitted in support of the City’s plea to the jurisdiction, and there is nothing


                                          14
to indicate that the Halls contended that the maps and charts submitted to FEMA

did not relate to their property or that the indicated portions on those maps and

charts were not relevant to the issue at hand. There is no need to “assume” that

the City’s evidence relates to the Halls’ property; all parties apparently agreed

that it did.

       I further disagree with the majority opinion’s implication that because the

City or the “engineering firms retained by the City” submitted the information

upon which FEMA based its flood-elevation conclusions, these conclusions

should not be given the weight they are entitled to. Majority Op. 26–27, 28–29.

Once again, I can find no indication in the record or in the appellate briefs that

the Halls ever asserted that the data submitted to FEMA was anything less than

accurate. 5 Indeed, in the City’s submitted requests for map revisions, it states

that the “effective floodplain information” submitted to FEMA was based on

models prepared by the United States Army Corps of Engineers. Thus, I cannot

agree with the majority opinion’s attempt to discredit the City’s evidence filed in

support of its plea to the jurisdiction.

       In any event, the City’s proffered intent evidence in support of its plea to

the jurisdiction established that, at the time it built the bridge, raised the road, and

widened the creek bed in 2004 and 2005, it knew that the elevation levels and,

thus, the likelihood of flooding were not significantly altered from what it was

       5
      The Halls did argue, however, that the City did not take into account
general city development when it requested flood map revisions from FEMA.


                                           15
before the improvements.        There is no need to repeat that evidence here

because the majority opinion details this evidence. 6 Majority Op. 19–28.

                   VI. THE SHIFTED BURDEN ON THE HALLS

               A. THE HALLS’ PROFFERED EVIDENCE REGARDING INTENT

      Because the City met its burden to establish that it did not know or did not

know with substantial certainty that damage would result to the Halls’ property at

the time the City began the project, the burden shifted to the Halls to raise a

genuine issue as to whether the City knew that flooding was substantially certain

by proffering objective indicia of the City’s intent. Wilson, 168 S.W.3d at 830;

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

      The Halls offered Kimberlee Hall’s affidavit in which she admitted that the

property lay within the 100-year floodplain of Big Bear Creek when she bought

the property in 1985 and that occasional flooding would occur, which could rise

as high as six inches. In February 1999, Kimberlee began “making inquiries with

the City expressing [her] concern about growing drainage problems on the

[p]roperty.”   On February 18, 2001, Kimberlee wrote the City a letter about

“improper drainage/water run-off” resulting in repeated and damaging flooding on

the property. Kimberlee “at other times” also met with “various City officials and


      6
        I must disagree, however, with the majority opinion’s assertion that the
chart included on the 1982 flood map is “illegible.” Majority Op. 20. The City and
the Halls ensured that the record included the original exhibits filed in support of
the jurisdictional briefing in the trial court. These original exhibits, specifically the
chart included on the 1982 flood map, are legible.


                                           16
representatives . . . and the [City’s retained] engineering firm” about “[t]hese

concerns.”   As construction began on the project, Kimberlee saw that her

property was “being turned into a ‘bowl’ with the raised roadway of Bear Creek

Parkway East immediately south of the [p]roperty, and the now significantly

raised roadway of Keller-Smithfield Road South immediately west of the

[p]roperty.” On April 14, 2005, Kimberlee emailed the City to “make SURE that

drainage is being handled. It looks like I am going to be a lake.” On May 24,

2005, while construction on the project was still occurring, the City wrote

Kimberlee and stated that it did not consider her concerns to implicate “potential

private property storm water problems” but, instead, believed her issue related to

“potential public storm water capacity or erosion problems.”

      Kimberlee’s husband, Thomas Hall, also submitted an affidavit, but he had

not moved into the house until shortly before the construction on the project

began; thus, his affidavit does not relate to what the City knew at the time it

planned the project. The Halls also submitted the affidavit of Frederick G. Ehler,

a professional engineer and certified flood-plain manager, to “investigate the

flooding which has occurred and is likely to continue to occur” to the Halls’

property. The majority opinion recounts Ehler’s report, and it would serve no

purpose for me to restate it other than to emphasize that Ehler pointed out that

FEMA’s flood-insurance study for Tarrant County (which includes the City) did

not consider the effects of three developments and two road-improvement

projects that occurred after Kimberlee bought the property in 1985, which


                                       17
“resulted in much more water being carried as run-off in the [Big Bear Creek]

drainage basin, even in periods of relatively light rain.” Ehler concluded that “in

the vicinity of the Hall residence, due to recent upstream and downstream

improvements and modifications to the watershed[,] it is now more likely that a

storm of lower intensity will produce a flood event of higher magnitude.” Majority

Op. 33–35. The Halls also offered excerpts from the deposition of the director of

the City’s public-works department in which he stated that the purpose of raising

the road as part of the project was to prevent flooding of the road.

                               B. DE NOVO REVIEW

      The crucial question becomes whether the Halls, through their proffered

evidence, established a genuine issue as to whether the City knew that flooding

to the property was substantially certain at the time it constructed the project.

See Wilson, 168 S.W.3d at 829. As stated before, this is a heightened intent

standard, requiring objective indicia of the City’s intent. Gragg, 151 S.W.3d at

555; State Farm, 145 S.W.3d at 168. The trial court concluded that the Halls

raised a genuine issue of material fact, which is reviewed de novo. See Heinrich,

284 S.W.3d at 378.

      At the time of the construction of the project, the City was aware that the

flood-elevation levels would not be substantially affected by the project. Ehler

posited, however, that these studies, maps, and charts failed to account for

development in the area, which resulted in more water run-off in the drainage

basin. Before construction began, Kimberlee complained to the City and the


                                        18
City’s retained engineering firm about drainage problems on her property, which

was located in the 100-year floodplain of Big Bear Creek. Kimberlee wrote the

City a letter about “improper drainage/water run-off” resulting in repeated and

damaging flooding on the property. Kimberlee “at other times” also met with

“various City officials and representatives . . . and the [City’s retained]

engineering firm” about “[t]hese concerns.”

      I would conclude that this evidence does not provide the objective indicia

that the City knew that the project would be substantially certain to cause

increased flooding on the Halls’ property. The Halls concede that their property

lay in the floodplain and was subject to occasional flooding. Although Kimberlee

complained about the drainage problems, there is nothing to connect these

complaints to the project or to whether the City knew or was substantially certain

that increased flooding would be the result of the project. While the Halls were

diligent in reporting to the City that increased flooding occurred after the project

was begun and completed, there is insufficient objective indicia that the plans for

the approved project were substantially certain to increase flooding on the Halls’

property. See Wilson, 168 S.W.3d at 830; see also Jennings, 142 S.W.3d at 313

(explaining accidental damage insufficient evidence of inverse condemnation).

Under the heightened intent standard applicable to inverse-condemnation claims,

the Halls must raise a genuine issue that the City knew that the Halls’ property

would be damaged or that damage was substantially certain to result from the

project at the time it approved the project. See Kerr, 2013 WL 842652, at *17; cf.


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Dallas, Garland & Ne. R.R. v. Hunt Cnty., 195 S.W.3d 818, 821–22 (Tex. App.—

Dallas 2006, no pet.) (holding lack of evidence that municipality intended the

complained-of damage justified summary judgment on inverse-condemnation

claim).

      In short, the Halls’ proof must raise a genuine issue that when the City

approved the project it knew or knew with substantial certainty that the project

would cause increased and damaging flooding to the Halls’ property and

continued with the project anyway. See Wilson, 168 S.W.3d at 830 (holding

plaintiffs “had to prove—not that the City might have disbelieved the engineers’

reports, but that it did”); Jennings, 142 S.W.3d at 313 (“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.’” (citation

omitted)). This the evidence does not do. The evidence before the trial court

showed that the City was told that the Halls’ property would not be substantially

affected by the project and that Kimberlee had complained about run-off

problems on her property.      The City knew the Halls’ property was in the

floodplain and that Kimberlee had reported flooding, which the City was told

would not increase with the project. The Halls failed to raise a genuine issue that

the City knew more than it was told by FEMA and its retained engineering firm.

See Wilson, 168 S.W.3d at 829. Further, none of the Halls’ responsive evidence

raises a genuine issue that the City knew flooding was inevitable as a result of




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the project. See id. The Halls failed to raise a genuine issue of material fact as

to the City’s intent.

       The Halls’ theory that the City’s failure to fix the recurring flooding problem

after each post-project flooding incident and after the Halls repeatedly

complained to the City does not operate to raise a genuine issue of material fact

as to the trial court’s jurisdiction. The intent element of the City’s governmental

immunity has a “temporal component.” Kerr, 2013 WL 842652, at * 17. The

Halls alleged that the flooding was a result of the project and surrounding

development, which they supported with Ehler’s opinion that the project and all

cumulative upstream and downstream development increased the run-off to the

Halls’ property. However, the Halls’ intent allegations relate solely to the project.

The Halls may not move the target of when the City’s intent is determined by

raising what the City knew before and after each post-project flood. To do so

impermissibly strays into the distorting effects of hindsight that the supreme court

has expressly disavowed. Pollock, 284 S.W.3d at 821.

       I recognize that my conclusion indicates that a governmental entity can

benefit from its own willful ignorance.       See Eliot Shavin & Chad Baruch,

Sovereign Immunity for Nuisance and Takings Claims in Texas after City of

Dallas v. Jennings, 58 SMU L. Rev. 195, 208 (2005) (“In essence, Jennings

creates a rule by which the government’s intentional ignorance immunizes it from

liability under the Takings Clause.”). However, there is no evidence that the City

intentionally failed to conduct the appropriate studies or consult engineers before


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embarking on the project. I am sure that in the appropriate case, it could be

found that a property owner raised a genuine issue on an entity’s intent based on

its willful failure to consult experts before beginning a project for the benefit of the

public. Cf. Wilson, 168 S.W.3d at 829 (“None of the evidence . . . showed the

City knew more than it was told by the engineers. The [Plaintiffs’] expert testified

that flooding was (in his opinion) inevitable, but not that the City knew it was

inevitable.”).

                                 VII. CONCLUSION

       I believe the Halls failed to meet the heightened standard applicable to the

City’s intent and, therefore, did not raise a genuine issue of material fact

regarding what the City knew at the time of the project sufficient to invoke the trial

court’s jurisdiction. As such, the trial court erred by denying the City’s plea to the

jurisdiction. I would reverse and remand to the trial court for entry of an order

granting the City’s plea.




                                                      LEE GABRIEL
                                                      JUSTICE

DELIVERED: May 1, 2014




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