                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-16-00183-CV

                                            Trece MEUTH,
                                               Appellant

                                                    v.

                                          CITY OF SEGUIN,
                                              Appellee

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 14-0546-B-CV
                               Honorable William Old, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: February 15, 2017

AFFIRMED

           Trece Meuth appeals the trial court’s order granting a plea to the jurisdiction filed by the

City of Seguin. With regard to her takings claim, Meuth contends the trial court erred in granting

the plea because she pled a viable takings claim. With regard to her declaratory judgment claim,

Meuth contends the trial court erred in granting the plea on the basis that her declaratory judgment

claim was a claim for monetary damages. With regard to her other claims, Meuth contends the

trial court erred in granting the plea because the City was engaged in a proprietary function or, in
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the alternative, if the City was engaged in a governmental function, the City is estopped from

asserting immunity from those claims. We affirm the trial court’s order.

                                            BACKGROUND

        Prior to the City annexing the property located at 628 Gloria Drive, Seguin, Texas

(“Property”), a storm water drainage culvert pipe was constructed underneath the Property which

drained into the Guadalupe River. After the City annexed the Property in 1965, the property

owner(s) constructed a house over the storm water drainage culvert pipe.

        In March of 2014, Meuth sued the City alleging numerous causes of action. In her petition,

Meuth alleged she contacted the City in March of 2012 when she was negotiating to purchase the

Property from her siblings out of an estate that was in litigation. Meuth also alleged she informed

the City the storm water drainage culvert was not located in the drainage easement the City had

across the Property. Meuth further alleged the City stated it was responsible for the storm water

drainage culvert. The City also allegedly stated “it would correct the mistake and repair the

property by filling in the culvert, replacing the lost soil, and building a new drainage culvert in a

location with a legal easement.” Meuth asserted a takings claim, a declaratory judgment claim, a

claim for intentional and negligent misrepresentations, a claim for fraud in a real estate transaction,

a claim for gross negligence, and a claim for injunctive relief.

        The City filed a plea to the jurisdiction. After a hearing, the trial court granted the plea and

subsequently severed Meuth’s claim for injunctive relief into a separate cause. Meuth appeals.

                                             JURISDICTION

        The City contends Meuth did not timely file her notice of appeal. This contention is based

on the City’s belief that the trial court’s order granting the City’s plea to the jurisdiction was a final

order. The record, however, establishes that the trial court’s order did not dispose of Meuth’s



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claim for injunctive relief. 1 Therefore, the trial court’s order was not a final order until the trial

court granted the motion to sever that claim into another cause. See Doe v. Pilgrim Rest Baptist

Church, 218 S.W.3d 81, 82 (Tex. 2007) (noting severance makes interlocutory order final).

Meuth’s notice of appeal was timely filed after the severance order was signed.

                                            STANDARD OF REVIEW

         Immunity from suit implicates a court’s subject-matter jurisdiction and is properly asserted

in a plea to the jurisdiction. Hous. Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 160

(Tex. 2016). “As subject-matter jurisdiction is a question of law, we review a trial court’s ruling

on a plea to the jurisdiction de novo.” Id. If the plea to the jurisdiction challenges pleadings, we

liberally construe the pleadings to determine if the plaintiff has “alleged facts that affirmatively

demonstrate the court’s jurisdiction to hear the cause.” Id. (internal quotations omitted). If the

plea to the jurisdiction challenges the existence of jurisdictional facts which also implicate the


1
  The City’s plea to the jurisdiction refers only to the following claims: (1) takings claim; (2) gross negligence and
negligent misrepresentation claim; (3) intentional misrepresentation and fraud in a real estate transaction; and (4)
declaratory judgment action. In addition to alleging each of those claims, Meuth separately alleged a claim for
injunctive relief in her petition as follows:
                                                            XIV.
                                                  INJUNCTIVE RELIEF
         26.        As set out above and throughout, Plaintiff has notified Defendant and Defendant has actual
         notice of the curb, inlet structure, and drainage pipe used by the City of Seguin to drain water from
         the City streets.
         27.        To date, Defendant, City of Seguin, claims the right to keep and maintain the drainage pipe
         on Plaintiff’s land. Defendant has refused to remove the drainage pipe, or any part of it, from
         Plaintiff’s land.
         28.        Plaintiff’s property is of great value. Plaintiff is and will be prevented from occupying her
         land for rents or value because of the encroachment and trespass of the City of Seguin’s drainage
         pipe. Defendant’s encroachment and trespass has greatly diminished the value and potential of
         Plaintiff’s land, has made the land unuseable and unsaleable for the reasons set forth. As a direct
         result of the encroachment and trespass, Plaintiff has suffered great injury, to Plaintiff’s property in
         an account within the jurisdictional limits of this Court. Under these circumstances, damages at law
         for future injury cannot be measured with any degree of accuracy and hence would be an inadequate
         remedy for Plaintiff. Consequently, the issuance of a mandatory injunction is necessary. Issuance
         of a mandatory injunction is also necessary to prevent continuing injury by Defendant to Plaintiff
         which will develop into a more dangerous situation if an injunction does not issue.
         29.        The drainage pipe used by the public and the City of Seguin extends into Plaintiff’s land
         below the surface. To remove the drainage pipe, Plaintiff would have to remove a considerable
         amount of soil from her land, which would entail prohibitive costs and irreparable damage to
         Plaintiff.

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merits of the case, “we consider relevant evidence submitted by the parties to determine if a fact

issue exists.” Suarez v. City of Tex. City, 465 S.W.3d 623, 632-33 (Tex. 2015). “We take as true

all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any

doubts in the nonmovant’s favor.” Id. at 633. “If the evidence creates a fact question regarding

jurisdiction, the plea must be denied pending resolution of the fact issue by the fact finder.” Id.

“If the evidence fails to raise a question of fact, however, the plea to the jurisdiction must be

granted as a matter of law.” Id.

                                               TAKINGS CLAIM

        Sovereign immunity does not shield a governmental entity from a takings claim. Gen.

Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 592, 598 (Tex. 2001); City of Dall. v. VRC

LLC, 260 S.W.3d 60, 64 (Tex. App.—Dallas 2008, no pet.). “Whether particular facts are enough

to constitute a taking is a question of law.” Gen. Servs. Comm’n, 39 S.W.3d at 598.

        To state a valid takings claim, a plaintiff must allege: (1) an intentional governmental act;

(2) that resulted in his property being taken; (3) for public use. Harris Cty. Flood Control Dist. v.

Kerr, 499 S.W.3d 793, 799 (Tex. 2016); Gen. Servs. Comm’n, 39 S.W.3d at 598. “Only

affirmative conduct by the government will support a takings claim.” Harris County Flood

Control Dist., 499 S.W.3d at 799. “A government cannot be liable for a taking if it committed no

intentional acts.” Id. at 800 (internal citations omitted). Accordingly, “the law does not recognize

takings liability for a failure to” act. Id.

        In its plea to the jurisdiction, the City asserted Meuth had failed to allege a viable takings

claim because Meuth had not alleged the City engaged in any intentional act which resulted in a

taking of her property for public use. In her reply brief, Meuth asserts, “The City’s intentional acts

that qualify as a taking include: (1) annexing the Meuth property with a drainage system in place

that diverts neighborhood storm water toward Meuth’s property and into the pipe running across
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Meuth’s property, (2) the City permitting the home to be built atop the drainage pipe in 1974 after

it had annexed the land, and (3) the City affirmatively using and maintaining, post-annexation, the

illegal and leaking drainage system running beneath Meuth’s house to drain the subdivision’s rain

storm waters instead of developing a legal drainage system running south of Meuth’s property

where the City’s drainage easement is located.”

         Although Meuth attempts to phrase her claim as an intentional act, neither the annexation

nor the permitting of the house resulted in her property being taken for public use. With regard to

the allegation that the City continued to use the storm water drainage culvert after annexation,

Meuth relies on cases involving recurrent flooding to assert the City’s diversion of recurrent storm

waters is an intentional act. In Harris Cty. Flood Control Dist., however, the Texas Supreme Court

noted that the governmental entities in those cases knew flooding would result from affirmative

projects being undertaken by the entities. 499 S.W.3d at 806 (discussing Kopplow Dev., Inc. v.

City of San Antonio, 399 S.W.3d 532 (Tex. 2013) and Tarrant Reg’l Water Dist. v. Gragg, 151

S.W.3d 546 (Tex. 2004)). 2

         Unlike the cited cases, in this case, Meuth did not allege in her petition that the City

constructed the storm water drainage culvert which was in place prior to the City’s annexation of

the Property. In fact, in her brief, Meuth quotes statements made by her attorney at the hearing to

assert the origin of the pipe is unknown. 3 Instead, the allegations in Meuth’s petition are focused




2
  In Kopplow Dev., Inc., the takings claim arose from the city’s construction of a regional storm water detention
facility. 399 S.W.3d at 534. In Gragg, the takings claim arose from the governmental entity’s construction and
operation of a reservoir. 151 S.W.3d at 549. Similarly, in Kerr v. Tex. Dep’t of Transp., 45 S.W.3d 248, 251 (Tex.
App.—Houston [1st Dist.] 2001, no pet.), which is cited by Meuth, the plaintiffs alleged a takings claim based on the
construction of a highway and feeder lanes which allegedly caused flooding that damaged their homes.
3
  In the quoted language, Meuth’s attorney stated no one present in the courtroom was there when the pipe was laid,
and he believed the pipe was laid in the wrong place. In response to the trial court’s statement that the city engineer
was not involved in the initial laying of the pipe, Meuth’s attorney stated, “We agree with that.”

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on the City’s failure to take action to repair the storm water drainage culvert. In the factual

background of her petition, Meuth asserted:

       The City’s drainage culvert is a corrugated steel culvert which has corroded and is
       in disrepair. The encroaching and trespassing corroded pipe allows water to
       penetrate the soil around the pipe causing unstable soil creating a nuisance
       increasingly whenever it rains. Moreover, the joints in the pipe have separated and
       further caused instability of the soil underneath the Plaintiff’s house.

Specifically, in regard to her takings claim, Meuth alleged:

       a.      Defendant had a duty to maintain its water drainage systems, including the
       subject curb, inlet, and culvert, which is for public use.

       b.      Defendant annexed an as built drainage culvert in a location with no legal
       easement. This was an intentional act to place Plaintiff’s property under the
       authority of the City of Seguin.

       c.      Defendant was notified of the damage occurring to the property as a result
       of the corrosion of the drainage culvert and erosion of soils.

       d.      Defendant fails to repair its drainage culvert underneath Plaintiff’s structure
       and fails to protect the health and welfare of its citizens knowingly and
       intentionally.

       e.      Defendant knew the disrepair was/is substantially certain to be causing
       erosion of the property is encroaching and trespassing on Plaintiff’s property and
       creating a nuisance.

       f.      The City of Seguin’s action and inactions have resulted in a taking of
       Plaintiff’s property.

       The allegations in the instant case are similar to those in AN Collision Ctr. of Addison, Inc.

v. Town of Addison, 310 S.W.3d 191 (Tex. App.—Dallas 2010, no pet.). In AN Collision Ctr. of

Addison, Inc., the Town of Addison purchased an airport that had previously been constructed and

operated by a third party. Id. at 192. AN Collision, which owned property adjacent to the airport,

sued Addison alleging it intentionally diverted rainwater from the airport onto AN Collision’s

property with knowledge that flooding of its property would result, was resulting, or was

substantially certain to result. Id. at 193. In response to Addison’s contention that AN Collision


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could produce no evidence that Addison had engaged in an intentional act, AN Collision asserted

Addison knew the flooding was substantially certain unless Addison acted to alleviate the

diversion of the rainwater. Id. at 194.

       The Dallas court noted the flooding was not caused by the continued operation of the

airport but by the manner in which the airport was constructed; however, Addison did not construct

the airport or take any action that increased the diversion of the rainwater. Id. at 194-95. The

Dallas court concluded Addison’s failure to correct the problem was not an intentional act,

asserting, “A failure to act, including a failure to take corrective measures, is not enough to rise to

the level of a taking.” Id. at 196.

       Similarly, in Bell v. City of Dall., 146 S.W.3d 819, 821 (Tex. App.—Dallas 2004, no pet.),

the City had an easement for drainage sewers on property purchased by Herbert and Margaret Bell.

“In the mid 1990’s, the City began the ‘Carissa Project’ to improve the storm drainage system.”

Id. at 822. During the project, the pipes on the Bells’ property were exposed, and the City

discovered one of the pipes had displaced joints and was surrounded by cavities. Id. The City

decided to seal the ends of the pipe and fill it with a concrete-like substance. Id. The Bells argued

the concrete did not fill the cavities around the pipe or even fill the entire length of the pipe on

their property, and subsequently sued the City. Id. The City filed a plea to the jurisdiction asserting

governmental immunity which the trial court granted. Id.

       With regard to the Bells’ takings claim, the Dallas court noted the Bells’ petition did not

contain any factual allegations to establish the City intentionally performed an affirmative act. Id.

at 825. Instead, the Dallas court asserted, “it is apparent that the property damage was alleged to

be caused by negligent omissions; specifically, the City’s failure to maintain and repair damage

caused by faulty pipes. Consequently, the pleadings affirmatively negate a valid . . . takings

claim.” Id.
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         Finally, in Harris Cty. Flood Control Dist., four hundred homeowners sued Harris County

and the Harris County Flood Control District (collectively the “County”) asserting a takings claim.

499 S.W.3d at 795. The homeowners alleged the flooding of their homes was caused by the

County’s approval of upstream development and the failure to fully implement a flood-control

plan known as the Pate Plan which the County approved and authorized the District to implement

over fifteen years before the lawsuit was filed. Id. at 796-97. With regard to the County’s failure

to implement the Pate Plan, the Texas Supreme Court asserted, “the law does not recognize takings

liability for a failure to complete the Pate Plan, despite the homeowners’ attempt to somehow

bundle that inaction with the affirmative conduct of approving development.” Id. at 800. The

court further stated, “Because inaction cannot give rise to a taking, we cannot consider any alleged

failure to take further steps to control flooding, such as the failure to complete the Pate Plan.” Id.

at 805. Although the court recognized the tension between the compensation obligation of the

Takings Clause and sovereign immunity, the court reasoned:

                 While compensation to those whose property is taken for public use is an
         important and constitutionally imposed obligation of democratic government,
         governments must also be allowed to survive financially and carry out their public
         functions. They cannot be expected to insure against every misfortune occurring
         within their geographical boundaries, on the theory that they could have done more.
         No government could afford such obligations.

Id. at 804.

         Because Meuth’s takings claim is based on the City’s failure to take action with regard to

the storm water culvert drainage pipe, the trial court properly granted the City’s plea to the

jurisdiction with regard to this claim. 4


4
  In her brief, Meuth cites Davis v. City of Palestine, 988 S.W.2d 854 (Tex. App.—Tyler 1999, no pet.). In that case,
the Davises alleged the city installed culverts in an arm of its storm drainage system in 1970. Id. at 856. That same
year, a building was built on top of the drainage system. Id. The Davises purchased the building and asserted that in
1991, the defective condition of the culverts caused the building’s foundation to crack and crumble, rendering the
building unfit for the operation of their business. Id. “They argued that the City was negligent in failing to inspect

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                                      DECLARATORY JUDGMENT CLAIM

         Meuth next asserts the trial court erred in granting the City’s plea to the jurisdiction on her

declaratory judgment claim. The City responds Meuth’s declaratory judgment claim is an

impermissible disguised claim for monetary damages.

         In her petition, Meuth alleged the following under the paragraph entitled “Declaratory

Judgment”: 5

                  Pursuant to C.P.R.C. § 37.001, et seq., Declaratory Judgments, Plaintiff
         seeks a declaratory judgment as to the encroachment of the City of Seguin
         maintained drain curb, inlet, and culvert and; further, that the City’s drainage is not
         in its proper easement and that the City of Seguin is responsible and liable for the
         drainage off its public streets. Further, the City of Seguin is adjudged to have a
         taking without compensation both under TEX. CONST. ART. 1 § 17 and TEX. GOV’T
         CODE, Chapter 2007. Further, that the jury and Court find and decree that the City
         of Seguin be liable to Plaintiff for the cost of the removal of the subject drainage
         culvert and the cost of the restoration of the property and any consequential and
         necessary and/or reasonable reconstruction of improvements situated on the
         property.

         “‘[P]rivate parties cannot circumvent the State’s sovereign immunity from suit by

characterizing a suit for money damages, such as a contract dispute, as a declaratory-judgment

claim.’” City of Hous. v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (quoting Tex. Nat. Res.

Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 856 (Tex. 2002)). If the declaratory judgment

claim “attempts to subject the [governmental entity] to liability, the sovereign immunity doctrine



the storm drainage system, in failing to repair the dangerous condition in the storm drainage system, and in failing to
maintain the support to their premises.” Id. The trial court granted summary judgment in favor of the city on the
Davises’ takings claim. Id. The Tyler court reversed, noting although the Davises’ pleading was “inartful” in alleging
the actions were negligent, rather than intentional, the pleading defect could have been cured in response to a special
exception. Id. at 859. The Tyler court also held the city did not conclusively prove the absence of intent. Id.
          The Davis case is distinguishable from the instant case because the city in Davis installed the culverts which
the Davises alleged were “defective” not simply unmaintained. In addition, we question whether the alleged failures
to act in Davis would be considered intentional acts after the Texas Supreme Court’s statement in Harris Cty. Flood
Control Dist. that “inaction cannot give rise to a taking.” 499 S.W.3d at 805.
5
 Meuth also makes reference to her supplemental petition; however, the supplemental petition only requests the trial
court to take judicial notice of the City’s ordinances. The supplemental petition does not request any further
declaratory relief.

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is implicated.” City of Dall. v. Blanton, 200 S.W.3d 266, 280 (Tex. App.—Dallas 2006, no pet.)

(citing IT-Davy, 74 S.W.3d at 856); see also City of San Benito v. Ebarb, 88 S.W.3d 711, 721

(Tex. App.—Corpus Christi 2002, pet. denied) (noting “a suit which is brought ostensibly for the

purpose of declaring rights, but actually seeks to impose liability on the State for damages, is a suit

against the State barred by sovereign immunity”).          A dichotomy exists, however, between

declaratory judgment claims regarding past violations where the only plausible remedy is money

damages and those seeking to compel the city to follow the law in the future which do not implicate

immunity to the extent an award of money damages is not sought. See City of Round Rock v.

Whiteaker, 241 S.W.3d 609, 633 (Tex. App.—Austin 2007, pet. denied); Bell v. City of Grand

Prairie, 221 S.W.3d 317, 325 (Tex. App.—Dallas 2007, no pet.).

       In this case, we construe Meuth’s reference to the City’s “liability” for the drainage from

its streets and her request to hold the City “liable” for the costs associated with removing the

drainage culvert and restoring the property as requesting monetary damages. See Blanton, 200

S.W.3d at 280 (holding declaratory judgment claim seeking to require City to pay the expense of

transferring appellees’ plumbing and reconnecting it to new sewer main barred by sovereign

immunity). Accordingly, the trial court did not err in granting the City’s plea as to Meuth’s

declaratory judgment claim.

                                        REMAINING CLAIMS

       With regard to all of her remaining claims, including intentional and negligent

misrepresentation, gross negligence, and fraud in a real estate transaction, Meuth contends the trial

court erred in granting the City’s plea to the jurisdiction because the City was engaged in a

proprietary function for which its immunity was waived. Specifically, Meuth focuses on the

alleged promises the City made in reassuring her the City would repair the storm water drainage

culvert which she relied on in purchasing the Property. The City counters that it is immune from
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intentional tort claims and its actions with regard to sanitary and storm sewers are governmental

functions for which immunity is not waived.

       A.      Intentional Misrepresentation and Fraud in a Real Estate Transaction

       Meuth does not separately address the City’s immunity from intentional tort claims. Under

section 101.057(2) of the Texas Tort Claims Act, the City is immune from any intentional tort

claim. TEX. CIV. PRAC. & REM. CODE ANN. § 101.057(2) (West 2011).

       B.      Governmental Function

       The Texas Supreme Court has explained the proprietary-governmental dichotomy as
follows:

       The proprietary-governmental dichotomy has been used to determine a
       municipality’s immunity from suit for tortious conduct. The distinction has not
       been a clear one, but generally speaking, a municipality’s proprietary functions are
       those conducted “in its private capacity, for the benefit only of those within its
       corporate limits, and not as an arm of the government,” while its governmental
       functions are “in the performance of purely governmental matters solely for the
       public benefit.” A municipality is not immune from suit for torts committed in the
       performance of its proprietary functions, as it is for torts committed in the
       performance of its governmental functions.

Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006) (quoting Dilley v. City of Hous., 148

Tex. 191, 222 S.W.2d 992, 993 (1949)). The Texas Legislature defined governmental functions

to include “sanitary and storm sewers.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(9)

(West Supp. 2016).

       Although Meuth acknowledges the Texas Legislature’s inclusion of “storm sewers” in its

definition of governmental functions, Meuth contends the City’s promises and representations

regarding the storm water drainage culvert are proprietary. A similar contention was made in Bell

v. City of Dall. In that case, the Bells asserted “that even if the maintenance and operation of the

storm drains in this case were governmental functions, the City’s alleged promise to fill the cavities

around those drains was not.” 146 S.W.3d at 823. The Dallas court disagreed reasoning:


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               Any damage to the Bells’s property was caused by the City’s failure to
       maintain the storm drainage pipes on the Bells’s property. Specifically, according
       to the Bells themselves, the cavities around the pipes were allegedly created
       because of leaks in the pipes and too much water running through the pipes. The
       Bells cannot avoid the effect of governmental immunity by creative pleading.

Id. at 824. Similarly, any damage to Meuth’s property was caused by the City’s refusal to repair

the storm water drainage culvert which is a governmental function. See id.; see also City of Dall.

v. Jones, 331 S.W.3d 781, 786 (Tex. App.—Dallas 2010, pet. dism’d) (holding City’s failure to

relocate storm drainage pipe is discretionary decision that is governmental in nature). Meuth

“cannot avoid the effect of governmental immunity by creative pleading.” Bell, 146 S.W.3d at

824.

       C.      Estoppel

       In the alternative, Meuth argues if the City’s actions are governmental functions, the City

should be estopped from asserting immunity based on the promises and representations it made to

Meuth before she purchased the property.

       “The general rule has been in this state that when a unit of government is exercising its

governmental powers, it is not subject to estoppel.” City of Hutchins v. Prasifka, 450 S.W.2d 829,

835 (Tex. 1970). “There is authority for the proposition that a municipality may be estopped in

those cases where justice requires its application, and there is no interference with the exercise of

its governmental functions.” Id. at 836. This exception, however, “is applied with caution and

only in exceptional cases where the circumstances clearly demand its application to prevent

manifest injustice.” Id.

       In Prasifka, a tract of property was initially classified as residential but was changed to

heavy manufacturing based on a resolution passed by the city council. Id. at 834. The appellee

purchased the property in reliance on a city zoning map which classified the property as heavy

manufacturing. Id. After the property was purchased, the zoning map was revised to classify the
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property as residential because the city attorney opined the proper zoning procedures had not been

followed to change the classification. Id. The appellee asserted the city should be estopped from

denying the validity of the resolution changing the property’s classification. Id. at 833. The trial

court concluded the city was not estopped, and the Texas Supreme Court affirmed, asserting it

found no exceptional case warranting an exception from the general rule. Id. at 836.

         In City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 773 (Tex. 2006), the

Texas Supreme Court explained the general rule “derives from our structure of government, in

which the interest of the individual must at times yield to the public interest and in which the

responsibility for public policy must rest on decisions officially authorized by the government’s

representatives, rather than on mistakes committed by its agents.” The court noted, “the interests

of an individual seeking to estop a governmental entity must at times yield to the general public’s

interest in a government that is not encumbered by the threat of unlimited liability” and barring

estoppel “protects the public fisc.” Id. at 774 (citing Office of Personnel Mgmt. v. Richmond, 496

U.S. 414, 433 (1990) (“[O]pen[ing] the door to estoppel claims would only invite endless litigation

over both real and imagined claims of misinformation by disgruntled citizens, imposing an

unpredictable drain on the public fisc.”)). The court stated the case presented “an occasion to

clarify the exception and reiterate its limited applicability.” Id.

         In clarifying the exception, the court first noted it had only applied the exception in two

cases in which it held a city was estopped from enforcing a notice of claim provision. 6 Id. at 774-


6
  In Roberts v. Haltom City, Roberts sued the city for injuries she sustained as a result of a fall on a street maintained
by the city. 543 S.W.2d 75, 76 (Tex. 1976). The city asserted Roberts’s claim was barred because she failed to give
city officials written notice of her claim within thirty days of the occurrence as required by the city charter. Id. The
Texas Supreme Court held a fact issue was raised regarding whether city officials led Roberts to believe the notice of
claim requirement was waived which would estop the city from asserting the notice requirement as a bar to her suit.
Id. at 78. As a result, summary judgment was improperly granted in favor of the city. Similarly, in City of San Antonio
v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986), the Schautteets sued the city alleging the city negligently destroyed
their house by fire. The insurance company paid the policy limit for the loss, signed a subrogation agreement with
the Schautteets, and intervened in the lawsuit. Id. The insurance company’s attorney met with the city attorney who

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75. The court asserted those decisions “illustrate the types of cases that may fall under the ‘justice

requires’ exception” because evidence was presented “that city officials may have affirmatively

misled the parties seeking to estop the city and that the misleading statements resulted in the

permanent loss of their claims against the cities.” Id. at 775. “Evidence that city officials acted

deliberately to induce a party to act in a way that benefitted the city but prejudiced the party weighs

in favor of applying the exception articulated in Prasifka.” Id. With regard to its application of

estoppel in the two decisions, the court noted the complaining parties in those cases “would have

been completely denied relief had the cities not been estopped, because only an equitable remedy

could revive their otherwise extinguished claims.” Id.

         In Super Wash, Inc., a car wash business sought to estop a city from enforcing an ordinance

requiring it to maintain a continuous fence on the side of its property on Longfield Drive. Id. at

771. The ordinance was adopted in connection with the rezoning of the property from residential

to commercial use based on area residents’ concerns regarding vehicular traffic in their

neighborhood. Id. When the car wash purchased the property, it was unaware of the ordinance

and submitted a site plan for a curb cut and exit onto Longfield Drive. Id. The city approved the

permit but, within a week, informed the car wash it was required to construct a fence along

Longfield Drive after residents complained.                Id.   After construction was forty-five percent

complete, the city informed the car wash it had to remove the planned exit onto Longfield Drive.

Id.




informed him the city would investigate the incident. Id. The city’s charter contained a ninety-day notice of claim
provision. Id. More than ninety days after the fire, a city representative called the insurance company’s attorney and
denied any liability. Id. The Texas Supreme Court held a fact issue was raised regarding whether the city led the
claimant to believe no further steps needed to be taken until the city completed its investigation; therefore, summary
judgment was improper because the city might be estopped from relying on the notice of claim provision. Id. at 105.

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       After clarifying the exception to the general rule against estoppel, the Texas Supreme Court

held the case did not present an exceptional case for the application of the exception. Id. at 775.

First, unlike its two prior decisions in which the parties would have been completely denied relief

absent estoppel, the court noted the business had been operating for years and the record did not

indicate a second entrance/exit was necessary for its continued operation. Id. In addition, the court

noted the car wash had other remedies by seeking a variance or a repeal of the ordinance. Id.

Furthermore, the court noted the ordinance was a matter of public record, and the city notified the

car wash of the ordinance within days of erroneously issuing the permit. Id. Finally, the court

held any benefit to the city from adding a commercial business to its tax base was too attenuated

to establish grounds for equitable relief, noting there was “no evidence that the city received any

direct benefit from [the car wash] in exchange for the erroneously issued permit.” Id.

       Even if justice requires the application of estoppel, estoppel cannot be applied if it would

interfere with the exercise of governmental functions. Super Wash, Inc., 198 S.W.3d at 776;

Prasifka, 450 S.W.2d at 836. The court noted “precluding a city from performing a specific

governmental function in a single instance is not per se interference with its governmental

functions.” Super Wash, Inc., 198 S.W.3d at 776. “Rather, in determining whether a case presents

an appropriate instance in which to apply the exception, the relevant inquiry is whether estopping

the city in a single instance will bar the future performance of that governmental function or

impede the city’s ability to perform its other governmental functions.” Id. Specifically, “[a] court

should consider whether estoppel will affect public safety, bar future enforcement of [an]

ordinance, or otherwise impede the city’s ability to serve the general public.” Id. at 777.

       We hold the facts of this case do not present an exceptional case for estopping the City. In

this case, the property owners chose to build a house over a storm water drainage culvert, which

Meuth does not allege the City constructed. With regard to Meuth’s reliance on the City’s alleged
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promises, in Prasifka, the Texas Supreme Court held the city was not estopped from asserting its

immunity even though the plaintiff purchased property in reliance on the representations made by

the city’s zoning map. 450 S.W.2d at 836. Moreover, the City did not receive any benefit from

its promises, and subsequent investigation showed the cost to repair the culvert would be too great

implicating the “public fisc.” Super Wash, Inc., 198 S.W.3d at 774. Finally, unlike the only two

decisions in which the Texas Supreme Court has applied estoppel, the City’s alleged

misrepresentations did not “extinguish[]” Meuth’s right to pursue a claim. Id. at 775.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                    Sandee Bryan Marion, Chief Justice




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