

                                                           COURT OF
APPEALS
                                                   EIGHTH DISTRICT OF
TEXAS
                                                              EL
PASO, TEXAS
 



 
 
THE CITY OF EL PASO, TEXAS,
 
                                   
  Appellant,
 
v.
 
MAZIE’S, L.P. and
WHITNEY PROPERTIES, L.P.,
 
                                   
  Appellees.
 


 
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                  No. 08-11-00233-CV
 
                         Appeal from
 
327th District
  Court
 
of El Paso County,
  Texas
 
(TC # 2008-2582)




 


 


 



                                                                  O
P I N I O N
 
The City of El Paso has
brought this accelerated appeal from an order denying its plea to the
jurisdiction.  For the reasons that
follow, we affirm.
FACTUAL SUMMARY
The
Coronado Country Club, built in the 1950’s, is located on the west side of El
Paso, Texas.  Developers filled large
natural arroyos[1]
passing through and near the country club and constructed an earthen diversion
dam to reroute and drain water into a smaller arroyo (Arroyo 8B) to the south.  As developers created new residential
neighborhoods in this same area, they continued the practice of diverting water
from larger natural arroyos into the man-made drainage system.  The City approved the plans for the diversion
dam and drainage system.  The City owns, operates,
and maintains the diversion dam and the drainage system.  
John
Walton, Ph.D. is a civil engineering professor at the University of Texas at El
Paso.  In 2004, Dr. Walton decided to
review the drainage systems because new development was being planned in Arroyo
4A located behind his home.  He examined
the FEMA maps for Arroyos 4A and 8B and topographic maps for the area.  He also made visual observation of the
diversion dam and became concerned that it might fail in a large storm
event.  After reviewing the FEMA maps,
the published drainage areas in the FEMA documents, the published flow rates,
and the continued development in the watershed, Dr. Walton concluded that the
published FEMA peak flow rates were erroneous. 
It became apparent to him that the drainage system in Arroyo 8B was
under-designed and was unlikely to survive a large storm.  In late December 2004, Dr. Walton sent a
letter to FEMA and the U.S. Army Corps of Engineers expressing his concerns
about these potential drainage problems. 
He hand-delivered a copy of the letter to El Paso’s City Engineer, Rick
Connor.  Dr. Walton’s letter addressed “irregularities
in the drainage system for the Arroyos originating above the Coronado Country
Club in West El Paso, Texas and ending mostly at the Keystone Dam and Oxidation
Pond (FEMA Arroyos 4 and 8).”  Dr. Walton
first expressed his concerns about deficiencies in the diversion dam and
associated structures which could lead to failure of the diversion system.  He stated that if this structure failed, the
flow rates down Arroyo 4 “may greatly exceed the published FEMA design flows
for the arroyo” and he expressed his concern that a failure to address these
issues may lead to an undue risk to safety and property during a large storm
event, a 100-year or greater storm.  
Dr.
Walton’s letter addressed a second area of concern about the drainage system
just to the south (Arroyo 8B).  He stated
that even if the diversion structure were shown to be adequate, or reinforced
until it was adequate, he was still concerned that Arroyo 8B “will be forced to
deal with a greater storm surge than initially anticipated, a storm surge which
appears to exceed current FEMA/FIRM calculations which apparently do not
include flow from the diversion dam.”  This
increased flow runs into the drainage canal just above Mesa Street between the
building holding Western Beverages, Blockbuster, Sun Harvest, and Kentucky
Fried Chicken and the drainage canal did not appear adequate to handle the
increased flow caused by the diversion dam and the new upstream development
which has occurred in the drainage basin during the past twenty years.  Dr. Walton called for a full engineering
study to be done on the diversion dam and associated structures and he
suggested that the FEMA maps and design flows be corrected to reflect the
“lost” water from South Franklin Mountains. 
He also recommended that the drainage systems for Arroyos 4 and 8 be
checked for adequacy.
Walton
subsequently met with Connor and an engineer from the City, Bashar Abugalyon,
at the site of the diversion dam.  Connor
and Abugalyon did not engage in any substantive discussion with Dr. Walton
about the engineering concerns and Connor “expressed his disdain for academics
who in his opinion, do not live in the real world.”  Appellees, Mazie’s L.P. and Whitney
Properties, L.P., owned some of the commercial property, including the Blockbuster
Video store, mentioned in Dr. Walton’s letter as being at risk.  In late July and early August of 2006, El
Paso experienced significant rainfall and the drainage canal above Mesa Street
failed as did other portions of the drainage system above it.  The floodwaters totally destroyed the
Blockbuster store as well as nearby buildings and homes.  Appellees filed suit against the City alleging
a nuisance claim and takings claim under Article I, Section 17 of the Texas
Constitution and a takings claim under the Fifth Amendment to the United States
Constitution.  The City filed a plea to
the jurisdiction based on governmental immunity to suit.  Both sides submitted evidence in support of
their respective positions on the issues raised by the City’s plea.  Following a hearing, the trial court denied
the plea and this appeal followed.
EVIDENTIARY COMPLAINTS
            The City and Appellees each raise
complaints about the trial court’s ruling on objections to evidence.  The City makes a conditional complaint in its
brief about the trial court’s ruling on its objections to Dr. Walton’s
affidavit:
To the extent
[Appellees] may seek to construe the affidavit to make statements about what
the City actually knew or intended,
the affidavit is objectionable for lack of factual predicate, speculation, and
other objections raised by the City.  See CR: 272-74.  In regard to any such construction of the
affidavit, the trial court’s overruling of the City’s objections, see id., was an abuse of discretion made
without reference to guiding principles and which was reasonably calculated to
cause and probably did cause rendition of an improper judgment and was such
that the entire case turned on it.  Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998); McCraw v.
Maris, 828 S.W.2d 756, 758 (Tex. 1992); Benavides
v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex.App.--Houston [1st Dist.] 2006,
no pet.).  
 
The complaint is
not raised as a separate issue in the brief, but is instead found in a
footnote.  
Rule
38.9 requires the court to construe briefs liberally.  See
Tex.R.App.P. 38.9.  We recognize that the current Rules of
Appellate Procedure provide litigants with some degree of leeway in the
statement of issues raised on appeal, but we do not believe it is appropriate
to raise a complaint about the admission of evidence in a footnote.  See
Tex.R.App.P. 38.1(f)(“The brief
must state concisely all issues or points presented for review.  The statement of an issue or point will be
treated as covering every subsidiary question that is fairly included.”).  The City has not provided any argument or
authority relevant to its objections based on lack of factual predicate and
speculation.  See Tex.R.App.P. 38.1(i)(requiring
an appellant’s brief to contain clear and concise arguments “with appropriate
citations to authorities”); see also Fredonia
State Bank v. General American Life Insurance Company, 881 S.W.2d 279,
284-85 (Tex. 1994)(appellate court has discretion to find error waived due to
inadequate briefing).  Finally, the
City’s reference to “other objections” made in the trial court is wholly
inadequate to raise any additional arguments on appeal and certainly does not
substitute for briefing the issue.  For
these reasons, we find that the City has waived its complaints about Dr.
Walton’s affidavit.
Appellees
attempt to raise an issue regarding the trial court overruling their objections
to the affidavit of City Engineer Alan Shubert. 
Like the City, Appellees state this issue in a footnote in their brief
as follows:
Appellees objected
to Mr. Shubert’s testimony in the trial court to the extent he was testifying
in reliance on statements made to him by other city employees.  The trial court improperly overruled those
objections, and appellees assert that improper ruling as error.  First, Mr. Shubert would lack personal
knowledge.  See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Tex.R.Evid. 602.  Second, statements made by other employees would
constitute hearsay.  See Tex.R.Evid. 801, 802.  Thus, the trial court abused its discretion
in overruling the objections.  In any
event, even if admitted, the affidavit fails to state the facts necessary to
rebut appellees’ allegations.  
 
Again, we
believe it is inappropriate to raise an issue in a footnote.  See
Tex.R.App.P. 38.1(f).  Even if Appellees had properly raised this
complaint in an issue or point in their brief rather than a footnote, we would not
address the merits because it is waived. 
First, Appellees did not raise a hearsay objection in the trial
court.  See Tex.R.App.P. 33.1(a)(1).  Second, Appellees directed their lack of
personal knowledge objection at the entire affidavit and did not identify the objectionable
portions.  See General Motors Corporation v. Harper, 61 S.W.3d 118, 126
(Tex.App.--Eastland 2001, pet. denied)(when part of a document contains hearsay
and part of it is admissible, the objection to that evidence should point out
the statements claimed to be hearsay and specifically object to those
statements).
PLEA TO THE JURISDICTION
            In Issue One, the City contends that
the trial court erred by denying its plea to the jurisdiction.  The City offers multiple arguments under this
issue which we have designated as sub-issues one through seven.
Standard of Review
A
plea to the jurisdiction is a dilatory plea by which a party challenges the
court’s authority to determine the subject matter of the action.  Harris
County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). The plaintiff bears the burden to allege facts affirmatively
demonstrating that the trial court has subject matter jurisdiction. Texas Department of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001). 
Whether a party has alleged facts that affirmatively demonstrate a trial
court’s subject matter jurisdiction and whether undisputed evidence of
jurisdictional facts establishes a trial court’s jurisdiction are questions of
law which we review de novo.  Texas
Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Texas Natural Resource
Conservation Commission v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
When
a plea to the jurisdiction challenges the existence of jurisdictional facts,
the trial court must review the relevant evidence to determine whether a fact
issue exists.  Miranda, 133 S.W.3d at 226. 
When reviewing a trial court’s ruling on a challenge to its
jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as
well as any evidence in the record that is relevant to the jurisdictional
issue.  City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); Bland ISD, 34 S.W.3d at 555.  If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea,
and the issue must be resolved by the trier of fact.  Miranda,
133 S.W.3d at 227-28; see City of Elsa,
325 S.W.3d at 626.  On the other hand, if
the evidence is undisputed or fails to raise a fact question, the trial court
must rule on the plea as a matter of law.  Miranda,
133 S.W.3d at 228.


 
State Takings Claim
Article
I, Section 17 of the Texas Constitution provides that:  “No person’s property shall be taken, damaged
or destroyed or applied to public use without adequate compensation being made,
unless by the consent of such person . . . .”  Tex.Const.
art. I, § 17.  “Taking,” “damaging,” and
“destruction” of one’s property are three distinct claims arising under Article
I, Section 17. City of Dallas v. Jennings,
142 S.W.3d 310, 313 n.2 (Tex. 2004); Steele
v. City of Houston, 603 S.W.2d 786, 789-791 (Tex. 1980).  Courts use the term “taking” as a shorthand
to refer to all three types of claims.  Jennings, 142 S.W.3d at 313 n.2.  This case concerns the damage to and
destruction of Appellees’ property.  
Governmental
immunity protects political subdivisions of the State such as counties, cities,
and school districts from lawsuits for damages. 
Harris County Hospital District v.
Tomball Regional Hospital, 283 S.W.3d 838, 842 (Tex. 2009); Reata Construction Corporation v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003).  The City does not have immunity
from a valid takings claim.  See General Services Commission v. Little-Tex
Insulation Company, Inc., 39 S.W.3d 591, 598 (Tex. 2001); see Texas
Parks and Wildlife Department v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.
2011)(stating that when the State or a state agency has taken a person’s
property for public use, the State’s consent to suit is not required; the
Constitution grants the person consent to a suit for compensation).  If the plaintiff fails to allege a valid
takings claim, the City retains its immunity from suit.  See Little-Tex
Insulation, 39 S.W.3d at 598; City of
Dallas v. Blanton, 200 S.W.3d 266, 272 (Tex.App.--Dallas 2006, no pet.).
Allegation of Specific Act Related to
Maintenance or Operation
A
takings claim consists of three elements:  (1) an intentional act by the government under
its lawful authority, (2) resulting in a taking, damaging, or destruction of
the plaintiff’s property, (3) for public use.  Little-Tex
Insulation Company, 39 S.W.3d at 598; City
of El Paso v. Ramirez, 349 S.W.3d 181, 186 (Tex.App.--El Paso 2011, no
pet.).  In its first sub-issue, the City
argues that Appellees have failed to allege that it engaged in a specific act
which resulted in the taking, damaging, or destruction of Appellees’
property.  This portion of the City’s
argument focuses primarily on the sufficiency of Appellees’ pleadings.  The Supreme Court has recognized that a
person’s property may be taken, damaged, or destroyed and therefore require
compensation if an injury results from either the construction of public works
or their subsequent maintenance and operation. 
City of Tyler v. Likes, 962
S.W.2d 489, 504-05 (Tex. 1997), citing Hidalgo
County Water Improvement District No. 2 v. Holderbaum, 11 S.W.2d 506, 507
(Tex.Comm’n App.1928, judgm’t adopted). 
Consistent with these decisions, Appellees have alleged in their third
amended petition that the City’s construction, operation, and maintenance of
the diversion dam and drainage system damaged their property.  
The
City nevertheless maintains that Appellees’ takings claim “is based--not on construction of the drainage system--but
rather on maintenance/operation of
the system, i.e., a purported ‘policy’ of continuing to divert water into the
system after being ‘warned’ there might be a problem.”  The City’s argument is based on the opening
paragraph in Appellees’ third amended petition:
This case arises
from the City of El Paso’s decision to protect affluent residential property
owners from the possibility of flood waters flowing naturally through their
neighborhoods by diverting those waters to a drainage system that inevitably
caused flooding of nearby commercial properties.  A civil engineering professor warned the City
of the likely flooding almost two years before it occurred.  But the City ignored him and continued its
diversion of the floodwaters, choosing to protect certain property owners at
the expense of others.  
 
In determining
whether Appellees have stated a valid takings claim, we do not restrict our
analysis to a single paragraph in the petition. 
Appellees allege that their property damage was caused by a diversion
dam, detention pond, and drainage system constructed, operated, and maintained
by the City of El Paso and they allege facts regarding the initial construction
of the diversion dam and drainage system. 
The petition also alleges that over the years, the City “continued its
practice of diverting water from the natural arroyos to the man-made drainage
system” as new residential neighborhoods were developed in the same area.  Appellees further contend that the City’s
diversion of floodwaters changed the amount and character of those waters by
massively and intentionally increasing their volume, force, and velocity.  We do not construe the pleadings as being
based solely on the City’s “policy” of diverting floodwaters.  To the contrary, Appellees allege that their
property damage was caused by a diversion dam, detention pond, and drainage
system constructed, operated, and maintained by the City.
The
City next contends that a claim based on the maintenance or operation of a
public work must involve a specific act such as releasing water from a control
gate or unclogging a sewer line.  It
argues that “mere responsibility for maintenance or operation of a public
work--even one which inherently causes occasional flood--does not constitute a
taking.”  The City cites City of Arlington v. State Farm Lloyds,
145 S.W.3d 165, 168 (Tex. 2004) in support of its argument.  There, raw sewage backed up into a home on
two occasions causing significant damage. 
City of Arlington, 145 S.W.3d
at 166.  The homeowners’ insurer, State
Farm, paid the homeowners for the damages and brought a subrogation suit
against the City of Arlington to recover the monies paid, alleging that the
City’s operation of the sewer lines constituted a nuisance and an
unconstitutional taking under Article 1, Section 17.  Id.
 State Farm did not allege that the City
operated the sewer improperly; instead, it argued that “backups of raw, noxious
sewage into private residences” are “inherent in the nature” of sewer systems.  Id.  It argued that the City should be liable
for the damage caused by the sewer system because the City intentionally maintained
the system for the benefit of its citizenry, knowing that backups such as the
ones involved in the case are inherent in the operation of sewer systems.  Id.  A jury found that the sewer system created a
nuisance that proximately caused damages to the house, and that the second
sewage flood (but not the first) constituted a taking of property by the City
of Arlington.  Id. at 167.  The Fort Worth
Court of Appeals found that the City of Arlington waived the issues presented
on appeal due to inadequate briefing.  City of Arlington v. State Farm Lloyds,
141 S.W.3d 216, 218 (Tex.App.--Fort Worth 2003).  The Supreme Court first determined that the
City of Arlington’s issues were not waived. 
City of Arlington, 145 S.W.3d
at 167-68.  It then held, citing City of Dallas v. Jennings, 142 S.W.3d
310 (Tex. 2004), that mere intentional operation of a sewer system is
insufficient to support liability for a takings claim under Article I, Section
17.  The court reviewed the evidence and
found there was no evidence that the City of Arlington knew a specific act was
causing identifiable harm or knew that the specific property damage is
substantially certain to result from an authorized government action.  City of
Arlington, 145 S.W.3d at 168.  Thus,
the court held the City of Arlington did not engage in an unconstitutional
taking.  Id.  The instant case is
distinguishable.  First, City of Arlington was in a different
procedural posture because the Supreme Court was reviewing the sufficiency of
the evidence following a jury trial.  This
case is before us on appeal from the trial court’s order denying the City’s plea
to the jurisdiction.  Second, Appellees here
never alleged that occasional flooding is inherent in the nature of the
diversion dam and drainage system, and therefore, the City should bear the
expense.  To the contrary, Appellees
alleged that the City intentionally chose, through the construction and
operation of the diversion dam and drainage system, to divert water from natural
arroyos into a man-made drainage system knowing that the damage to Appellees’
property was substantially certain to result from this authorized government
action.  Accordingly, we conclude that City of Arlington does not support the
City’s argument.
Citing
AN Collision Center of Addison, Inc. v.
Town of Addison, 310 S.W.3d 191 (Tex.App.--Dallas 2010, no pet.), the City
also contends that the flooding of Appellees’ property did not result from its
maintenance or operation of the diversion dam and drainage system because the
water flows down the drainage structures without human intervention.  There is no evidence in the record supporting
the City’s assertion that the diversion dam and drainage system do not require
any routine action on the part of city employees.  For this reason alone, the City’s argument is
without merit.  Further, the Collision Center decision does not
support the City’s argument.
Collision
Center purchased real property near the Addison Airport and began operating a
vehicle paint and body repair shop on that location.  Id.
at 192.  It filed suit against Addison
alleging that its premises had flooded numerous times because Addison diverted
or impounded rainwater from the airport. 
Id.  The petition alleged that because Addison
intentionally diverted the water and with knowledge that the flooding of
Collision Center’s property would occur, the damage to the property constituted
a taking in violation of Article I, Section 17. 
Id.  Collision Center further argued that
Addison’s diversion of water was a compensable nuisance under Article I,
Section 17.  Id.  Addison filed a
traditional and no-evidence motion for summary judgment.  Id.  The trial court granted the motion without
specify the basis for the ruling.  Id. at 192-93.  On appeal, Collision Center did not challenge
every ground on which summary judgment could have been granted and only
challenged the summary judgment on its request for abatement of the nuisance.  Id. at
193.  Consequently, the Dallas Court of
Appeals considered whether any of the unchallenged grounds supported summary
judgment on Collision Center’s request for abatement of the nuisance.  Id.
at 193-94.  
The
court addressed whether the trial court properly granted summary judgment under
Rule 166a(i) on the ground that the Collision Center did not have any evidence
that Addison performed any intentional act that damaged Collision Center.  Id.
at 194.  The opinion does not state what
Collision Center alleged in its pleadings, but Collision Center argued that
Addison had knowledge that the development and alteration of the natural
landscape of the airport caused the flood on Collision Center’s property.  Id. at
194.  It also argued that Addison knew
that the flooding was substantially certain to continue unless Addison acted to
alleviate the diversion of rainwater.  Id. 
The evidence showed that private parties built the Addison Airport in
1956 and Addison purchased it in 1976.  Id. at 192.  There was evidence that the flooding occurred
as the result of the original construction of the airport twenty years before
Addison purchased it.  Id. at 194.  The appellate court noted there was no
evidence that an act by Addison caused the flooding on Collision Center’s
property.  Id.  Further, Collision
Center produced no evidence that the maintenance and operation of the airport
caused the flooding of its property.  Id. at 194-95.
The
City focuses on the statement that: 
“Collision Center has not alleged,
nor produced any summary judgment evidence of, an act by Addison that caused
the flooding on Collision Center’s property.” 
[Emphasis added].  Id. 
The statement must be considered in the context of the issue being
addressed by the court of appeals.  The court
was not reviewing a plea to the jurisdiction where the focus is on the
plaintiff’s pleadings and the jurisdictional evidence but instead was reviewing
whether the plaintiff had produced any evidence in response to a no-evidence
summary judgment motion.  In such a case,
the burden was on the plaintiff to produce a scintilla of evidence to avoid
summary judgment under Rule 166a(i).  Here,
Appellees have alleged that the City’s construction, maintenance, and operation
of the diversion dam and drainage system caused the flood which damaged their
property.  They also allege that
increased diversion of new water from new development in the area created a
situation where a large storm event would overwhelm the capacity of the
man-made drainage system to  transport
floodwaters away from all residential and commercial property.  We conclude that Appellees’ pleadings state a
valid takings claim under Article I, Section 17.  The City’s first sub-issue is overruled.
Intentional Act
In
sub-issue two, the City argues that the evidence establishes it did not know
flooding was substantially certain to occur. 
If the City is correct, Appellees have alleged only a negligence claim,
not a taking.  See Tarrant Regional Water District v. Gragg, 151 S.W.3d 546, 555
(Tex. 2004)(stating that intent is the factor which distinguishes a takings
claim from a negligence action); Likes,
962 S.W.2d at 505 (stating that mere negligence which eventually contributes to
the destruction of property is not a taking). 
When a governmental entity physically damages private property in order
to confer a public benefit, that entity may be liable under Article I, Section
17 if it (1) knows that a specific act is causing identifiable harm; or (2)
knows that the specific property damage is substantially certain to result from
an authorized government action -- that is, that the damage is necessarily an
incident to, or necessarily a consequential result of the government’s action.  Jennings,
142 S.W.3d at 314.  
Appellees
alleged in their third amended petition that Dr. Walton wrote a letter in
December 2004, which he delivered to City Engineer Rick Connor, expressing his
concerns about the detention dam and drainage system.  Dr. Walton explained that the drainage system
could not handle the increased water flow from the diversion dam and new
development and he warned that the system could fail during a large storm
event.  Dr. Walton identified Appellees’
property as being at particular risk. 
Appellees specifically alleged that: 
“The City knew flooding of certain property in the area near Mesa Street
was substantially certain to occur because it was necessarily incident to and a
consequential result of the intentional diversion of surface waters.”  The City offered the affidavit of the City
Engineer, Alan Shubert, in support of its plea to the jurisdiction.  At the time he provided the affidavit in
February 2011, Shubert had been the City Engineer for four years.  Shubert’s affidavit states the following with
respect to the City’s knowledge: 
Nor did [the City]
know its acts were substantially certain to result in property damage or that
property damage was necessarily incident to or necessarily a consequential
result of its actions.  Rather, the goal
of the drainage system was to protect all private properties in the relevant
area--including Plaintiffs’ properties--by diverting surface water away from
them.  Due to highly unusual rainfall on
August 1, 2006, and ground saturation from prior extensive heavy rains, the
drainage system unexpectedly failed at certain points.  
 
The City also
relied on the deposition testimony of Bashar Abugalyon, a hydraulic engineer
employed by the City.  Abugalyon
testified that he had “no concerns” about the box culvert which overflowed onto
Appellees’ property.  According to Abugalyon,
the drainage system had been designed under a 100-year flood standard whereas
the August 1, 2006 rainfall was “almost like a 500-year flood.”[2]  Appellees responded to this evidence by
offering the affidavit of Dr. Walton.  He
stated, in paragraphs 3, 4, and 5 that:
3.  The situation that existed is described in my
attached January 2007 report, Exhibit ‘C’. 
Water from arroyos on the mountainside above the diversion dam were
diverted into the area running down what is now Silver Springs Drive in order
to protect the Coronado Country Club development.  Later developments to the South led to
increased run off from new subdivisions with no controls for the downstream
flood damage risk it would increase.  The
City did not require the developers to take into account the increased water flows
and the limited capacity of the old drainage system below.  The City made choices that benefitted newer
subdivisions and put the commercial buildings and older neighborhoods below at
high risk of flood damage.  The August 1,
2006 flood resulted in damage that was apparent in advance to any civil
engineer.
 
4.  Mr. Connor and Mr. Abulguyon [sic] did not
engage in any substantive discussion with me about the engineering
concerns.  Mr. Connor expressed his
disdain for academics who in his opinion, do not live in the real world.  The choices the City made put the public at
great risk.  Some of those risks were
realized on August 1, 2006.  It is a
wonder no one died.
 
5.  I know it is not up to me to take the place
of a jury in deciding intent, but from an engineering standpoint the risks
taken by the City were obvious and made to favor newer developments up the
mountain by jeopardizing the safety of older commercial and residential
subdivisions.  The old channel behind Sun
Harvest could not handle the water willfully diverted into it from four
mountainside arroyos as well as the increased runoff from newly developed areas
and it did not.  The new Blockbuster
building was lost as a result.  
 
The
foregoing evidence establishes that a fact issue exists with respect to whether
the City knew flooding of certain property in the area near Mesa Street was
substantially certain to occur as a result of the intentional diversion of
surface waters.  The City’s second
sub-issue is overruled.
Failure to Act
In
its third sub-issue, the City contends that Appellees’ takings claim is based
on an alleged failure to act.  In making
this argument, the City asserts, as it did in the first sub-issue, that
Appellees’ takings claim is not based on construction, but is instead based on
the City’s policy of continuing to divert water into the system after being
warned there might be a problem.  We
disagree with that contention for reasons already stated in the opinion.  
The
City is correct, however, that a failure to act cannot be construed to be an
intentional act resulting in damage to Appellees’ property.  Collision
Center, 310 S.W.3d at 196.  In the
absence of an intentional act resulting in the taking of private property for
public use, a claim for inverse condemnation under Article I, Section 17 is
barred by governmental immunity.  Id. 
A failure to act, including a failure to take corrective measures, is
not enough to rise to the level of taking; it is merely an allegation of
negligent conduct.  Id.  Appellees’ takings
claim, as expressed in their third amended petition, is based on the City’s
construction, operation, and maintenance of the diversion dam and drainage
system, not on the City’s failure to act, e.g., its failure to obtain a full
engineering study as recommended by Dr. Walton or its failure to alter the
diversion and drainage system.  The
City’s third sub-issue is overruled.
A Taking for Public Use
In
its fourth sub-issue, the City challenges the third element of a takings
claim.  Article I, Section 17 provides
for compensation only if property is damaged or appropriated for or applied to
public use.  Tarrant Regional Water District v. Gragg, 151 S.W.3d 546, 554-55
(Tex. 2004); City of El Paso v. Ramirez,
349 S.W.3d 181, 186 (Tex.App.--El Paso 2011, no pet.).  Appellees alleged in their third amended
petition that the City constructed a diversion dam and drainage system for the
purpose of diverting floodwaters from affluent residential neighborhoods into a
drainage system that inevitably caused flooding of downstream properties,
including the commercial property of Appellees. 
The City concedes that it constructed the diversion dam and drainage
system for public use, but it vigorously denies that it constructed the system
as part of a plan to protect only certain property owners at the expense of
others.  The City contends that it
negated this allegation of public use through the following portion of Alan
Shubert’s affidavit:
Plaintiffs allege
that, in regard to diversion of surface water by certain drainage structures
(diversion dam, detention pond, and drainage system near the Coronado County
Club), the City chose to protect certain property owners at the expense of
others.  However, the City never decided
to protect certain property owners at the expense of others.  Nor did the City accept the flooding of some
properties as a necessary consequence of efforts to protect others.  
 
Appellees, in
turn, submitted the affidavit of Dr. Walton who offered his assessment of the
purpose of the diversion dam and drainage system.  Dr. Walton stated that the City made choices
that benefitted newer subdivisions and put the commercial buildings and older
neighborhoods below at high risk of flooding. 
We conclude that a fact issue exists with regard to this element.  The City’s fourth sub-issue is overruled.
No Recurrent Flooding
            In its fifth sub-issue, the City complains
that Appellees’ takings claim is not valid because they do not allege, and
there is no evidence of, recurrent flooding. 
It cites Gragg in support of its
argument that recurrence is a requirement of a valid takings claim based on
floodwater impact.  In Gragg, 151 S.W.3d at 555, the Supreme
Court stated the following:
In City of Dallas v. Jennings, 142 S.W.3d
310, 314 (Tex. 2004), which we also decide today, we hold that the requisite
intent is present when a governmental entity knows that a specific act is
causing identifiable harm or knows that the harm is substantially certain to
result. 
In the case of flood-water impacts, recurrence is a probative factor
in determining the extent of the taking and whether it is necessarily incident
to authorized government activity, and therefore substantially certain to
occur.  [citation omitted].  While nonrecurrent flooding may cause damage,
a single flood event does not generally rise to the level of a taking.  [citation omitted].  The recurrence requirement assures that the
government is not held liable for taking property when a project’s adverse
impacts, and by implication its benefit to the public, are too temporal or
speculative to warrant compensation. 
[citation omitted].  This is
similar to the standard the federal courts have applied in determining whether
the government’s actions have taken property affected by flooding, [citations
omitted] and it is the standard we apply in the present case.
 
While the
Supreme Court observed that a single flood event does not generally rise to the level of a taking, it stopped short of
holding that recurrence is an absolute requirement in these types of
cases.  In Doss v. City of Victoria, No. 13-07-306-CV, 2007 WL 4442616
(Tex.App.--Corpus Christi-Edinburg 2007, no pet.), the Thirteenth Court of
Appeals addressed an argument that the plaintiff’s allegation of a single
incident of flooding was insufficient to confer subject matter
jurisdiction.  In that case, fifty-three
homeowners sued the City of Victoria for damages to their homes resulting from
high flood waters.  Id. at *1.  The City of
Victoria installed storm and drainage sewers in the 1950’s.  Id.  In 2004, it hired a contractor for a
construction project that included improving the water lines, sanitary sewers,
and storm sewers.  Id.  The contractor warned
the City of Victoria that the sewer pipes were so occluded they presented a
substantial risk of high flood waters and if the City proceeded with the
project as planned without clearing the pipes, a flood risk could not be
eliminated.  Id.  The City of Victoria
ordered the contractor to complete the project as originally specified.  Id.  In November 2004, an unusually heavy rain
flooded the plaintiffs’ neighborhood and damaged their homes.  Id.   The causes of action included a takings
claim under Article I, Section 17.  The
trial court granted the City’s plea to the jurisdiction.  Id.  
            The court of appeals acknowledged
the discussion in Gragg about the
recurrence requirement, but noted that Gragg
was not an appeal from a plea to the jurisdiction.  Doss,
2007 WL 4442616 at *3-4.  The court
rejected the City’s argument that a single flood event does not suffice to state
a takings claim, finding that recurrence goes to the merits of the plaintiffs’
claims and is not a pleading requirement to invoke the trial court’s
jurisdiction.  Id. at 5.  We agree with this
analysis and will follow it here.  The
City’s fifth sub-issue is overruled.
Nuisance Claim under Article I, Section 17
In
its sixth sub-issue, the City argues that with regard to Appellees’ claim for
nuisance under Article I, Section 17, it is immune from liability for this
claim unless it rises to the level of a constitutional taking.  This issue is based on the other arguments
already decided adverse to the City. 
Accordingly, we overrule sub-issue six.
Takings Claim under the Fifth Amendment
            In its final sub-issue, the City
contends that the takings claim based on the Fifth Amendment is invalid for the
same reasons that the state takings claim is invalid.  The City did not address Appellees’ Fifth
Amendment takings claim in its plea to the jurisdiction or in its supplement to
the plea to the jurisdiction, but the Supreme Court has held that
jurisdictional issues can be raised for the first time on appeal.  See Waco
Independent School District v. Gibson, 22 S.W.3d 849, 849-51 (Tex. 2000)(holding
that jurisdictional grounds not raised in plea to the jurisdiction can be
raised for first time on interlocutory appeal). 
Consequently, we will address the City’s arguments.  We have already determined that the City’s
arguments raised in sub-issues one through four are without merit.  The City argues that flood recurrence is a
requirement in pleading a valid takings claim under the Fifth Amendment.
Federal
courts have held that a plaintiff asserting a takings claim under the Fifth
Amendment must prove that the land is subject to permanent or inevitably
recurring floods.  See Turner v. U.S., 901 F.2d 1093, 1095 (Fed.Cir. 1990)(In order to
show a servitude has been imposed through a taking by flooding, a plaintiff
must prove that the land is subject to permanent or inevitably recurring floods.);
Hendricks v. United States, 14 Cl.Ct.
143, 148 (Cl.Ct. 1987)( in an inverse condemnation through flooding case, the
plaintiff must prove that flooding has been intermittent, frequent, and
inevitably recurring because of authorized actions of the defendant); Anchor Estates, Inc. v. United States, 9
Cl.Ct. 618, 620-21 (Cl.Ct. 1986)(in a situation where works constructed by the
Government on land owned or controlled by it cause the land of another to be
subject to intermittent, frequent, and inevitably recurring flooding, it is
held that the Government thereby takes a flowage easement over the affected
land and must pay just compensation under the Constitution for the easement); Singleton v. United States, 6 Cl.Ct.
156, 162-63 (Cl.Ct. 1984)( “It is well established that the critical element of
an inverse condemnation taking in a flooding case is that of inevitable
recurring floods.”).  These cases
establish that the requirement is one of proof but they do not state that it is
a pleading requirement.  We overrule
sub-issue seven.  Having overruled each
sub-issue, we overrule Issue One and affirm the trial court’s order denying the
City’s plea to the jurisdiction.
 
 
December 19, 2012                             _______________________________________________
ANN CRAWFORD
McCLURE, Chief Justice
 
Before McClure, C.J., Rivera, J., and Medrano, Judge
Medrano, Judge, sitting by
assignment




[1]  An arroyo is a natural watercourse or gulch
in an arid region and is usually dry except after rains.  Ehler
v. LVDVD, L.C., 319 S.W.3d 817, 825 (Tex.App.--El Paso 2010, no pet.).


[2]  Abugalyon had no data or calculations to
support his statement that the storm event was a 500-year flood and he said
that he based his belief on what “we heard from the news and media, and
everybody . . . .”  Dr. Walton testified
that the storm was within the 100-year event that the drainage system is
designed to handle.  


