CONCUR; and Opinion Filed August 28, 2015.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-01456-CV

                  SLOAN CREEK II, L.L.C., Appellant
                              V.
  NORTH TEXAS TOLLWAY AUTHORITY AND THE STATE OF TEXAS, Appellees

                      On Appeal from the County Court at Law No. 6
                                  Collin County, Texas
                          Trial Court Cause No. 006-3356-2008

                             CONCURRING OPINION
                          Before Justices Fillmore, Myers, and Evans
                                 Opinion by Justice Fillmore
       I am in complete agreement with the majority’s discussion of the applicable law and with

its determination the trial court properly sustained the objections of the North Texas Tollway

Authority (NTTA) and the Texas Department of Transportation (TxDOT) to certain evidence

relating to whether those entities had knowledge that specific damage to Sloan Creek II, L.L.C.’s

(Sloan Creek II’s) property was substantially certain to result from their roadway improvement

project. I write separately because I disagree with the majority’s analysis, in what I view as

dicta, that the evidence excluded by the trial court, if considered, constituted no evidence NTTA

and TxDOT knew their conduct was substantially certain to result in increased volume and

velocity of rainwater discharge onto Sloan Creek II’s land and to cause erosion of the banks of

Sloan Creek. I do not believe this Court has authority to issue such an advisory opinion. See

Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998);
see also State v. Naylor, Nos. 11-0114, 11-0222, 2015 WL 3852284, at *8 (Tex. June 19, 2015).

However, if Sloan Creek II’s evidence is to be considered by the Court, I would conclude it is

sufficient to raise an issue of fact as to whether both NTTA and TxDOT knew the erosion of

Sloan Creek was “substantially certain to result” from the roadway improvement project. See

City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). Accordingly, I join only in Parts

(I) through (III)(B)(1) of the majority opinion, and I concur in the Court’s judgment.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE

141456CF.P05




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