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Opinion filed May 18, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00031-CV
__________
RICHARD EVATT ET AL, Appellants
V.
TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 7,036-D
M E M O R A N D U M O P I N I O N
This appeal arises from a lawsuit filed by ninety-six homeowners whose homes were damaged by flood waters. The homeowners contend that their homes were flooded as a result of the construction methods implemented by the Texas Department of Transportation (the Department) on a nearby highway construction project. The homeowners assert that the property damages they incurred constituted a Ataking@ without compensation in violation of Tex. Const. art. I, ' 17. The trial court granted the Department=s plea to the jurisdiction and dismissed the homeowners= inverse condemnation claim. We affirm.
Background Facts
The homes that are the subject of this appeal are located in the Brookhollow and River Oaks subdivisions of Abilene. A flood occurred in these areas of Abilene on July 6, 2002.[1] At the time the flood occurred, the Department was performing a construction project on a highway located adjacent to these subdivisions. The Department placed large concrete barriers on the highway to divide traffic lanes during the construction. The homeowners fault the Department for using barriers that did not have an opening at the bottom which would permit water to pass through the barriers. They contend that the barriers constituted a solid wall or dam which impounded water on top of the adjacent highway. The homeowners alleged that their homes flooded when two of the barriers separated, Aallowing a large wall of water to escape from the dam created by the concrete barriers [that slammed] into the damaged area with great velocity.@ In making these allegations, the homeowners asserted that their homes had never flooded before this occasion.
The homeowners filed suit against the Department on January 21, 2003. In addition to their takings claim, they also asserted statutory claims under the Texas Tort Claims Act,[2] the Texas Water Code,[3] and the Texas Transportation Code[4] in their initial pleading. The homeowners subsequently dropped these statutory claims. Accordingly, we only consider the homeowners= takings claim in this appeal.
Issues on Appeal
The homeowners raise two issues on appeal. In their first issue, they assert that the trial court erred in granting the Department=s plea to the jurisdiction. The homeowners assert in their second issue that the trial court erred by failing to permit them to amend their pleadings before dismissing their claims.
Standard of Review
Under the doctrine of sovereign immunity, the state and its agencies cannot be sued in the courts of Texas without the consent of the state in the form of a constitutional or statutory exception. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); Tex. Highway Dep=t v. Weber, 219 S.W.2d 70 (Tex. 1949); Hosner v. De Young, 1 Tex. 764, 769 (1847). Sovereign immunity includes two distinct principles: immunity from suit and immunity from liability. Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d at 638. Sovereign immunity from suit deprives a trial court of subject matter jurisdiction and, thus, is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 224-26; Jones, 8 S.W.3d at 637-38. Whether a court has subject matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226; Tex. Natural Res. Conservation Comm=n v. IT‑Davy, 74 S.W.3d 849, 855 (Tex. 2002).
The Department sought the dismissal of the homeowners= lawsuit on the basis that they did not sufficiently allege a claim for which the state had waived sovereign immunity. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court=s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226; Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Whether a pleader has alleged facts that affirmatively demonstrate a trial court=s subject matter jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders= intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court=s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id.
Analysis
Article I, Section 17, of the Texas Constitution provides that A[n]o person=s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.@
At the heart of the takings clause lies the premise that the government should not force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. A taking under this provision may be physical or regulatory. A physical taking may occur when the government physically appropriates or invades private property, or unreasonably interferes with the landowner=s right to use and enjoy it. When the government takes private property without first paying for it, the owner may recover damages for inverse condemnation.
Tarrant Reg=l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004)(citations and quotations omitted). The Texas Supreme Court recently redefined the standards for establishing a takings claim in Gragg and City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004).[5] The court=s decisions in these cases significantly affect the issues in this appeal.
Gragg and Jennings both involved flooding alleged to have been caused by governmental entities. Gragg involved a claim of inverse condemnation based upon the manner in which a water district released water from the newly constructed Richland-Chambers Reservoir in East Texas. 151 S.W.3d 549-50. The Tarrant Regional Water District built the reservoir in 1987 on the Trinity River approximately eight Ariver miles@ upstream from the Gragg Ranch. Id. The Gragg Ranch included seventeen miles of river frontage along the Trinity River. Id. After a heavy rain occurring in March 1990, the water district released water from the reservoir=s floodgates into the Trinity River for the first time. Id. The Gragg Ranch suffered extensive flood damage for the first time in history as a result of the release of water from the reservoir. Id. The Gragg Ranch suffered additional flood damage in the following years from water releases from the reservoir. Id.
The water district asserted that it could not be liable under the takings clause because the flood damage that the Gragg Ranch suffered resulted from negligence. Id. at 551. The supreme court recognized in Gragg that mere negligence that eventually contributes to property damage does not amount to a taking. Id. at 554; see City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997). The court stated as follows in this regard:
Over the years, we have articulated the standard for a compensable physical taking in various ways. The cases reflect our efforts to account for several concerns in drawing the line between mere negligence and an unconstitutional taking. For one, we strive to avoid what would be an anomalous result if the State, an entity otherwise generally entitled to immunity for negligence, were subject to liability for something less than intentional behavior. More importantly, though, we seek to ensure that the public does not bear the burden of paying for property damage for which it received no benefit. As we have noted, our Constitution provides for compensation only if property is damaged or appropriated for or applied to public use. That is the factor which distinguishes a negligence action from one under the constitution for destruction. Accordingly, we have sought objective indicia of intent in particular contexts to determine whether property has been taken or damaged in furtherance of the public interest.
Gragg, 151 S.W.3d at 554-55 (emphasis added)(citations and quotations omitted). Thus, the supreme court recognized that only an intentional act by a governmental entity will give rise to a claim for inverse condemnation under the takings clause.
The supreme court outlined the requisite elements of an intentional taking claim in Jennings. The claimants in Jennings brought suit for damages they sustained when their home was flooded with raw sewage as a result of the city=s sewer system backing up. 142 S.W.3d at 311‑12. The material issue which the court resolved in Jennings centered on the type of intent needed to establish a claim of unconstitutional taking as a result of damage to one=s property. Id. at 313. The claimants argued that a taking occurs if the governmental entity intentionally performs the act which causes the damage. Id. The governmental entity asserted in Jennings that the relevant question is whether the government intended to damage the property, not whether it merely intended to take an action that accidentally resulted in such damage. Id. The supreme court resolved this issue by holding that:
[W]hen 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.
Id. at 314 (citations and quotations omitted); see Coyne v. Kauffman County, 144 S.W.3d 129, 133 (Tex. App.CEastland 2004, no pet.).
The court in Gragg summarized the standard adopted in Jennings as follows: Awe hold 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.@ 151 S.W.3d at 555. As applied to the circumstances in this case, the Department would only have liability under the takings clause if it either knew or was substantially certain that the use of the concrete barriers would cause the homeowners= homes to flood. The homeowners attempted to comply with the Jennings standard by alleging that the Department intentionally placed the concrete barriers on top of the adjacent highway. This allegation of intentional conduct, standing alone, is insufficient to allege a takings cause of action. As noted by the supreme court in Jennings:
We do not agree with the plaintiffs= contention that any intentional act can give rise to liability for an intentional taking. Such a standard would hold the government entity Ato a higher liability than a private person engaging in the same acts.@ Houston v. Renault, Inc., 431 S.W.2d 322, 325 (Tex.1968). Such a requirement would also ignore the predicate of Article I, Section 17: that the damage be Afor or applied to public use.@ When damage is merely the accidental result of the government=s act, there is no public benefit and the property cannot be said to be Ataken or damaged for public use.@ Texas Highway Dep=t v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71 (1949) (emphasis added); Steele v. City of Houston, 603 S.W.2d 786, 791‑92 (Tex.1980).
142 S.W.3d at 313-14. The homeowners have not alleged that the Department either knew or was substantially certain that their homes would flood as a result of the construction methods utilized by the Department on the nearby construction project. As a result of this omission, we conclude that the homeowners have not sufficiently alleged a takings claim.
The Department contends that the homeowners cannot plead a takings claim in good faith under the circumstances present in this appeal. The Department bases this assertion on the fact that only a single flooding event occurred. We agree. The supreme court made the following observation in Gragg with regard to the application of the Jennings standard in the case of damage caused by flood:
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. See Brazos River Auth. v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 107 (1961). While nonrecurrent flooding may cause damage, a single flood event does not generally rise to the level of a taking. See id. at 108. 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. See id.
151 S.W.3d at 555. Thus, the general rule is that a single flood event does not rise to the level of a taking. The underlying facts in this appeal necessitate the application of this general rule. There is no dispute that the rain which caused the flooding of the homeowners= homes was of record proportions. Given the anomalous amount of rainfall which produced the flooding that is at issue in this case, it would be impossible for the homeowners to allege in good faith that the Department knew or was substantially certain that their homes would flood as a result of the adjacent highway construction. Accordingly, the trial court did not err in granting the Department=s plea to the jurisdiction. The homeowners= first issue is overruled.
The homeowners allege in their second issue that the trial court erred in dismissing their lawsuit without giving them an opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226-27. As noted previously, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. We determined in the preceding paragraph that the homeowners= pleadings affirmatively negate the existence of subject matter jurisdiction. Thus, the trial court was not required to provide the homeowners with an opportunity to amend their pleadings prior to dismissing their lawsuit.
Moreover, we disagree with the homeowners= contention that they were not provided with an opportunity to amend their pleading prior to dismissal. The trial court conducted a hearing on the Department=s plea to the jurisdiction on September 24, 2004. At the time that the hearing occurred, the homeowners= live pleading consisted of their second amended petition which they filed on the day before the hearing (September 23, 2004). The homeowners filed a third amended petition on October 26, 2004, prior to the trial court=s entry of its order granting the plea to the jurisdiction on October 28, 2004.[6] Accordingly, the homeowners amended their pleadings in response to the Department=s plea to the jurisdiction on at least two occasions. The supreme court noted in Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) that A[i]f a plaintiff has been provided a reasonable opportunity to amend after a governmental entity files its plea to the jurisdiction, and the plaintiff=s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff=s action.@ Since the homeowners had a reasonable opportunity to amend their pleadings in response to the Department=s plea to the jurisdiction, the trial court did not have to provide them with another opportunity to amend their pleadings. We believe it is significant to note in this regard that the homeowners have not identified any additional matters which they would have alleged in an additional pleading. The homeowners= second issue is overruled.
This Court=s Ruling
The order of the trial court is affirmed.
TERRY McCALL
JUSTICE
May 18, 2006
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]The event records of the National Climate Data Center describe the flood as follows:
The tropical wave that had plagued south central Texas over the past several days moved to the north on the morning of the 6th. Thunderstorms moved into Taylor County around 3 AM. Rainfall rates of 2 to 3 inches per hour produced rainfall amounts of up to 12 inches in the southern portions of the county. A fire station on the south side of Abilene reported 5.2 inches of rain in less than 2 hours. The automated weather station at the Abilene airport reported 4 inches in 2 hours. This rainfall produced flooding of low water crossings and some creek flooding during the morning in Abilene. Worse flooding was yet to come however, as the heaviest rains occurred to the south of Abilene, in the Buffalo Gap, Tuscola, Ovalo and Lake Abilene areas. Water from these areas flowed in the Elm Creek, Cat Claw Creek, and Ceader [sic] Creek, then into the city of Abilene. Cat Claw Creek, and Elm Creek crested at record levels on the evening of the 6th. The flood waters did not recede significantly until the evening of the 7th. Around 1000 residents had to evacuate to higher ground. The flooding throughout the county resulted in significant property damage with 31 homes destroyed, 339 receiving major damage, and 322 received minor damage.
[2]See Tex. Civ. Prac. & Rem. Code Ann. '' 101.001-.109 (Vernon 2005 & Supp. 2005).
[3]See Tex. Water Code Ann. ' 11.086 (Vernon 2000).
[4]See Tex. Transp. Code Ann. ' 201.611 (Vernon 1999).
[5]The supreme court issued its opinions in Gragg and Jennings on the same day: June 25, 2004. The trial court conducted a hearing on the Department=s plea to the jurisdiction on September 24, 2004. The parties addressed the holdings in Gragg and Jennings in documents filed with the trial court prior to the hearing.
[6]The homeowners contend that their second amended petition constitutes their live pleading for the purposes of this appeal. However, the homeowners reference the allegations contained in their third amended pleading in their appellate briefs. We have reviewed the allegations contained in both of these pleadings in deciding the issues.