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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