                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 THE CITY OF EL PASO,                             §

                   Appellant,                     §

 v.                                               §               No. 08-10-00174-CV

 GUADALUPE RAMIREZ, NORMA                         §                  Appeal from the
 RAMIREZ, RAMIREZ PECAN FARMS,
 L.L.C, WILLIAM H BOUTWELL,                       §            County Court at Law No. 5
 JACKIE BOUTWELL, RAUL
 ZAMORANO, JR., AMY K.                            §            of El Paso County, Texas
 ZAMORANO, GEORGE WYNN,
 PATRICIA WYNN, LARRY R. WEBB,                   §                  (TC# 2007-2568)
 MARIA L. WEBB, JAMES R. RALEY,
 YARIELA G. RALEY, RUSSELL T.                    §
 STURGEON, KERRY L. STURGEON,
 KENNETH A. JOHNSON, AND JULIE                   §
 R. JOHNSON,
                                                 §
                   Appellees.
                                                 §

                                           OPINION

       This is an interlocutory appeal where the City of El Paso challenges the trial court’s

partial denial of its plea to the jurisdiction, and contends the underlying case should be dismissed

in its entirety under the doctrine of sovereign immunity.

       Appellees are property owners who reside and operate agricultural businesses located

within one mile of the southwestern boundary of the Clint Landfill.1 The City of El Paso (“the

City”) has operated the Clint Landfill as a solid waste disposal site since it purchased the facility

in the early 1980’s. The land between the landfill and the properties at issue consist primarily of


       1
        For ease of reference, we will refer to the Appellees as “Appellees” or as “the property
owners” throughout this opinion.
unimproved, open desert. Running through the open desert to the landfill’s southwestern

boarder, and leading to the Appellees’ properties, are natural drainage ways – arroyos – which

have been designated by FEMA as arroyos Nine, Ten, and Eleven.

       In late July and early August 2006, the City experienced a series of extraordinary

rainstorms, resulting in extensive flooding in the City and surrounding areas. The landfill’s

retention ponds overflowed causing huge amounts of water, silt, trash, and other waste to flow

down through the arroyos and onto Appellees’ properties destroying structures and ruining crops.

Appellees filed suit against the City in June 2007, raising claims for inverse condemnation,

nuisance, trespass, violations of the Texas Water Code, and seeking a permanent injunction.

Each property owner alleged that the flooding caused one million dollars in property damages,

including past and future repair and restoration costs, loss of fair market value, lost profits,

mental anguish, and in some cases, pain and suffering.

       The City filed a plea to the jurisdiction contending that the Appellees’ pleadings failed to

state fact sufficient to support their inverse condemnation and related claims, and that the

property owners failed to identify an applicable waiver of sovereign immunity. The trial court

granted the City’s plea with regard to the Appellees’ claim that the City violated the Texas Water

Code, and denied the plea as to all other causes of action. On interlocutory appeal, the City

raises three issues raising general challenges the trial court’s ruling. See TEX .CIV .PRAC.&

REM .CODE ANN . § 51.014(b)(West 2008). In Issue One, the City addresses the property owners’

claim for inverse condemnation, and presents basis for its argument that the Appellees failed to

plead sufficient facts to support the cause of action. In Issue Two, the City contends that the

property owners failed to plead a valid nuisance claim. In Issue Three, the City argues that the


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property owners’ claims for damages, including their request for injunctive relief, are barred by

sovereign immunity.

       To proceed with a suit against a governmental unit, such as the City of El Paso, a party

must establish that the Legislature has consented to the suit. See TEX .CIV .PRAC.&REM .CODE

ANN . §§ 101.001(3)(A) & (B), 101.025(West 2011); Texas Dep’t of Trans. v. Jones, 8 S.W.3d

636, 638 (Tex. 1999). Absent such consent, sovereign immunity deprives the court of subject-

matter jurisdiction over the case. Jones, 8 S.W.3d at 638. A plea to the jurisdiction is a dilatory

plea which may be used to challenge the court’s subject-matter jurisdiction. Id. Whether a court

has subject-matter jurisdiction is a question of law, subject to de novo review. Texas Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

       The scope of review regarding a plea to the jurisdiction is dependant on the particular

challenge asserted in the plea, and the presence or lack of disputed jurisdictional facts. See

Miranda, 133 S.W.3d at 226-27. When a plea challenges the sufficiency of the pleadings, the

reviewing court must determine whether the pleader alleged facts that affirmatively demonstrate

the court’s jurisdiction over the case. Id. at 226. We will construe the pleadings in favor of the

non-movant, and look to the pleader’s intent. Id. If the pleadings do not allege sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction, but also fall short of demonstrating

incurable defects, the proper remedy is to allow the pleader an opportunity to amend. Miranda,

133 S.W.3d at 226-27.

       In the case of a plea challenging the existence of jurisdictional facts, our review will

include relevant evidence to the extent necessary to resolve the jurisdictional question. Id. at

227. If the relevant evidence raises at least a fact question regarding the jurisdictional issue, then


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the plea must be denied, and the fact issue left for determination by the fact finder. Id. at 227-28.

If the relevant evidence is undisputed, or fails to raise a fact issue, the proper action is to rule on

the plea as a matter of law. Id. at 228. In such a review, all evidence favorable to the non-

movant will be taken as true, and we will indulge every reasonable inference in favor of the non-

movant. Id.

        In the case before us, the City’s plea challenged the sufficiency of the property owner’s

pleadings. First, the City asserted that the property owners failed to plead any claim that

demonstrates a waiver of immunity for tort liability pursuant to the Texas Tort Claims Act.

Second, the City argued that the property owners failed to plead a valid claim for inverse

condemnation, by pleading only allegations of inaction or negligence. Finally, regarding the

property owners’ nuisance and trespass claims, the City also asserted that the pleadings were

incurably defective because the factual allegations raised in the petition are limited to negligence,

and fail to rise to the level of an intentional tort. Because the City’s plea presented a challenge to

the sufficiency of the pleadings, we will focus our review on the property owners’ Third

Amended Petition, the live pleading at the time of the trial court’s ruling. See Miranda, 133

S.W.3d at 226-27.

        Following an extensive recitation facts regarding the 2006 flood, the history of the

landfill and its operation, and the damage done to each individual’s property, the following

allegations are included under the heading, “CAUSES OF ACTION.”

        42.     The allegations in the Statement of Facts are incorporated herein. The
                City of El Paso has taken, damaged, or destroyed the Plaintiff’s properties
                and thereby inversely condemned then in violation of Article I, Section 17
                of the Texas Constitution by its construction of the Clint Landfill or its
                subsequent operation and maintenance. The City of El Paso has, on a re-


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      occurring basis, caused damages to the Plaintiff’s properties in order to
      benefit the public who use and benefit from the landfill. The City of El
      Paso knows that its specific acts were causing identifiable harm to the
      Plaintiffs or the City of El Paso knows that the specific Plaintiffs’ property
      damages are substantially certain to result from authorized City of El Paso
      actions- that is, the Plaintiff’s damages are necessarily an incident to, or
      necessarily a consequential result of the City of El Paso’s actions. The
      landfill is a large, less-permeable structure placed over desert and arroyos,
      uphill from the Plaintiff’s properties. The landfill increases the runoff
      from the lands it is built upon. It increases the silt and trash that comes
      with those waters. The City of El Paso did not even abide by its own
      permit for the landfill. It did not build and maintain protective or
      sufficiently protective berms on top. It did not line its drainage channels.
      The City of El Paso knew there was the potential for substantial runoff and
      erosion from the landfill. In fact the law of Texas does not permit the City
      of El Paso to allow its solid waste from the landfill to escape into
      downstream arroyos and onto Plaintiffs’ properties. The City of El Paso
      knows it is to build drainage channels and detention ponds for this older
      site to handle at least a 24 hour- 25 year storm and to contain and control
      the runoff. Newer regulations call for the landfill to handle a 100 year
      storm. Ignoring newer regulations, the City contends it can do nothing
      because the older site is grand-fathered in. The City of El Paso did not
      properly prevent erosions from the landfill. It did not maintain a run-off
      management system that would collect and control at least the water
      volume from a 24 hour-25 year storm. The erosion and surging rainwater
      runoff has damaged Plaintiffs’ properties on a reoccurring basis. The City
      of El Paso has received several citations of violations and warnings by the
      Texas Commission of Environmental Quality and, in each instance, its
      intentionally limited remedial measures did not prevent a reoccurrence.
      The City of El Paso intentionally did not put in linings to protect against
      erosion or sufficient pumping capacity to drain the detention ponds in a
      timely manner. No overflow protections were taken, leading to failures of
      the detention ponds. The City ignored its own expert report, all TCEQ
      warnings and the lessons revealed by the re-occurrences. It subjected
      Plaintiffs to the risks.

43.   The City has created and is continuing an intentional nuisance that is a
      proximate cause of damages to Plaintiffs. The intentional nuisance allows
      Plaintiffs to also recover from the City under Article I, Section 17 of the
      Constitution. The allegations in the Statement of Facts and paragraph 42
      are incorporated herein.

44.   The City has created and is continuing a trespass against Plaintiffs that is


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               [an] approximate cause of damages to them. The trespass allows Plaintiffs
               to recover from the City under Article I, Section 17 of the Texas
               Constitution. The allegations in the Statement of Facts and paragraph 42
               are incorporated herein.

                                        .          .         .

       47.     The Plaintiffs seek a permanent injunction requiring the City to abate the
               nuisance and trespass, to permanently fix the Clint Landfill so that it does
               not have ponds that fail, so that it does not divert and concentrate surging
               surface waters onto or near Plaintiffs’ properties, and so that it does not
               erode and release trash and mud and toxic materials on or near Plaintiffs’
               properties.

       In Issue One, the City addresses the trial court’s ruling regarding the Appellees’ inverse

condemnation claim and the related claims for nuisance and trespass. The City argues primarily,

that the Appellees failed to state a claim for inverse condemnation because the allegations are

insufficient to support the intent element of the cause of action as a matter of law.

       The Texas Constitution prohibits the State from taking, damaging, or destroying an

individual’s property, for public use, without adequate compensation. See TEX .CONST . art. I,

§ 17. Condemnation of property by the State, occurs when the government exercises its right to

take private property for public use, but implies that the State has properly compensated the

property owner for the taking. See City of Houson v. Boyle, 148 S.W.3d 171, 178 (Tex.App.--

Houston [1st Dist.] 2004, no pet.). Inverse condemnation, on the other hand, occurs when the

government takes property without compensation, and the property owner seeks to recover the

resulting damages. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). To establish a

claim for inverse condemnation, the property owner must prove: (1) the State acted intentionally

in the exercise of its lawful authority; (2) the act resulted in the taking, damaging, or destroying

of property; (3) for public use. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d


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591, 598 (Tex. 2001).

        In this instance, the City’s plea was focused in large part in the sufficiency of the property

owners’ pleadings regarding the intent element. In City of Dallas v. Jennings, the Texas

Supreme Court held that a governmental entity’s liability for a taking through physical damage to

property if the entity:

        (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. [Internal quotations omitted].

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

        Intent, even in these terms, however is not sufficient as it fails to account for the State’s

general immunity from liability for negligence, and risks public payment for damage for which

the public received no benefit. See Tarrant Reg. Water Dist. v. Gragg, 151 S.W.3d 546, 554-55

(Tex. 2004). As the Court has explained, “[public use] is the factor which distinguishes a

negligence action from one under the constitution for destruction.” Gragg, 151 S.W.3d at 555.

It follows that a governmental entity’s alleged failure to act cannot rise to the level of a taking.

AN Collision Cent. of Addison, Inc. v. Town of Addison, 310 S.W.3d 191, 196 (Tex.App.--Dallas

2010, no pet). A governmental entity’s failure to act, even in the face of evidence that curative

measures are necessary to prevent future damage, rise only to the level of a negligence claim, and

acts of mere negligence will not support a taking claim. See AN Collision Cent. of Addison, Inc.,

310 S.W.3d at 196, citing Gragg, 151 S.W.3d at 554, Jennings, 142 S.W.3d at 313, City of Tyler

v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); see also City of Anson v. Harper, 216 S.W.3d 384,



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393 (Tex.App.--Eastland 2006, no pet)(holding pleadings were sufficient to support a takings

claim for city’s actual development of property as landfill, but limiting such a claim to “actions

physically taken on the property . . . .”).

        The pleadings in the case before us allege property damage due to numerous omissions by

the City. Even construed liberally and in the Appellees’ favor, allegations that the City was

aware of the potential for overflow from the landfill’s retention ponds, and its subsequent failure

to take measures to prevent such overflow, fail to rise to the level of a claim for inverse

condemnation. See Gragg, 151 S.W.3d at 554, Jennings, 142 S.W.3d at 313. Issue One is

sustained.

        As the remainder of Appellees’ surviving claims were also asserted pursuant to Article I,

Section 17, they are similarly barred by sovereign immunity. Accordingly, we sustain Issues

Two and Three.

        The only question remaining is whether the Appellees’ pleadings demonstrate an

incurable defect, or whether they should be given the opportunity to amend their pleadings. See

Miranda, 133 S.W.3d at 226-27. Based on the arguments presented, there is no indication that

the defects discussed above are incurable. See id. As such, we will remand the case to the trial

court so the Appellees’ may have the opportunity to amend their pleadings. See id.

        Having sustained Appellant’s issues, we reverse the trial court’s order denying the plea to

the jurisdiction. The case will be remanded for proceedings consistent with this opinion.



August 24, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice



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Before Chew, C.J., McClure, and Rivera, JJ.




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