the City of Keller v. Kimberlee Diane Meadors Hall and A. Thomas Hall

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00061-CV

THE CITY OF KELLER APPELLANT

V.

KIMBERLEE DIANE MEADORS APPELLEES
HALL AND A. THOMAS HALL

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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OPINION

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In this case, we consider whether Appellant the City of Keller established

as a matter of law that the trial court had no jurisdiction over the inverse

condemnation claim brought by Appellees Kimberlee Diane Meadors Hall and A.

Thomas Hall. The Halls sued the City alleging that various actions by the City

caused repeated flooding of their property. The City filed a plea to the

jurisdiction, which the trial court denied. The City then filed this interlocutory
appeal. In two issues, the City argues that the trial court erred by denying the

plea to the jurisdiction because the evidence was insufficient to support a taking

claim and because the Halls did not give the City notice of its claim before filing

suit. Because we hold that the trial court did not err by denying the plea to the

jurisdiction, we affirm.

Background

Kimberlee and her former husband bought the property consisting of

approximately 5.37 acres (the Property) and constructed improvements on it,

including a residence, an outbuilding, and two barns. The Property is located in

Keller. When Kimberly purchased the Property, much of it was within the 100-

year floodplain.

Keller Smithfield Road runs along the western boundary of the property.

Big Bear Creek runs just to the north of the Property in a generally west-to-east

direction and then turns south to run through the eastern part of the Property.

Bear Creek Parkway runs along the Property’s southern boundary. After the

Halls purchased the Property, a golf club was constructed south of the Property

(and downstream of Big Bear Creek) by GCP Keller Golf LP d/b/a Sky Creek

Ranch Golf Club. The Property is therefore more or less bordered on the west

side by Keller Smithfield Road, to the north by Big Bear Creek, and to the south

by Bear Creek Parkway and the golf club, with the creek also running through the

eastern portion of the Property.

2
 In their petition, the Halls complained about the City’s widening the creek

bed of Big Bear Creek, raising the road bed of Keller Smithfield Road, and

replacing the bridge on that road that passes over the creek. They also

complained generally about the City’s management and maintenance of the Big

Bear Creek waterway and of its authorization of development by others.

The Halls also sued GCP for nuisance. They asserted that in connection

with development of the golf club, GCP made changes to the elevation of its

property and “also constructed buildings and other structures, some of which . . .

invade the 100 year flood plain of Bear Creek,” causing water in Bear Creek to

back up and flood onto the Property.

The City answered and filed a combined plea to the jurisdiction and motion

for summary judgment. The City argued that to be liable on an inverse

condemnation claim, a governmental entity “must act for the purpose of causing

the invasion onto the property or must have known that the invasion was

substantially certain to result from its actions.” The City asserted that the trial

court lacked jurisdiction because the evidence established as a matter of law (1)

that none of the alleged actions of the City proximately caused the flood

damages and that (2) the City did not know and was not substantially certain that

damage to the Property was going to occur when it took the actions complained

of by the Halls. The City also alleged that the trial court lacked jurisdiction

because the evidence established as a matter of law that the Halls failed to

3
comply with a provision of the City’s charter requiring them to give written notice

of their claim to the city.

As a ground for traditional summary judgment, the City asserted the

affirmative defense of consent, arguing that by building in a floodplain, the Halls

consented to the damaging of the Property. The City also reframed its

jurisdiction arguments as no-evidence summary judgment grounds.

Among its attached evidence, the City included the affidavit of city

secretary Sheila Stephens. Stephens attached twenty-two exhibits from the

City’s records, including the City’s charter and documents from the Federal

Emergency Management Agency (FEMA).

In their response, the Halls asserted that they had pled multiple acts of

invasive flooding “which, according to the Halls’ expert, was substantially certain

to occur based on the information the City knew, both at the time of the [public

works project], and in the years since during in which [sic] these multiple floods

have occurred.” The Halls asserted that from 1982 to the present, the City

underwent significant urbanization “such that the drainage of [the creek] must

carry substantially more water from rain and storm run-off now than it did in

1982,” that construction by the City had “effectively turned the Property into a

detention pond,” and that the Halls had put the City on notice of growing drainage

and flooding problems as far back as 1999. The Halls attached to their response

a report from Frederick Ehler, an engineer hired by the Halls to perform a

4
drainage investigation of the area around the Property. Also with their response,

the Halls filed multiple objections to the City’s summary judgment evidence.

The trial court sustained a number of the Halls’ objections to the City’s

summary judgment evidence but overruled the Halls’ objections to Stephens’

affidavit. The trial court overruled the City’s plea to the jurisdiction, its tradition

summary judgment motion, and its no-evidence summary judgment motion. The

City then filed this appeal of the trial court’s denial of its plea to the jurisdiction.

The Halls, the City, and GCP filed an agreed motion to stay trial proceedings

while this appeal is pending.

Standard of Review

A plaintiff has the burden of alleging facts that affirmatively demonstrate

that the trial court has subject-matter jurisdiction. 1 When a plea to the jurisdiction

challenges the pleadings, a court looks at the allegations in the plaintiff’s

pleadings and accepts them as true. 2 If, however, the plea to the jurisdiction

challenges the existence of jurisdictional facts, a court must also consider the

relevant evidence necessary to resolve the jurisdictional issues raised. 3

1
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993).
2
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004).
3
Id. at 227; see also City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex.
2010) (“[W]e consider the plaintiff's pleadings and factual assertions, as well as
any evidence in the record that is relevant to the jurisdictional issue.”).

5
 When a jurisdictional challenge also implicates the merits of the plaintiff’s

claim, then the trial court considers the evidence submitted by the parties to

determine if a fact question exists. 4 If the evidence creates a fact question about

the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction; instead, the trial court must leave the fact issue for determination by

the factfinder. 5 But if the evidence is undisputed, or if the evidence does not

raise a fact question on the jurisdictional issue, the trial court rules on the plea to

the jurisdiction as a matter of law. 6

We review a trial court’s ruling on a plea to the jurisdiction de novo. 7 When

reviewing the trial court’s determination of a plea to the jurisdiction when the

pleading requirement has been met and evidence has been submitted to support

the plea that implicates the merits of the case, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. 8

4
Miranda, 133 S.W.3d at 227.
5
Id. at 227–28.
6
Id. at 228.
7
City of Elsa, 325 S.W.3d at 625.
8
Miranda, 133 S.W.3d at 228.

6
 Inverse Condemnation

Article 1, section 17 of the Texas Constitution provides, “No 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.” 9 The three distinct claims allowed by this section—taking, damaging,

and destruction of property—are all commonly referred to as a “taking.” 10

A taking may be physical or regulatory. 11 A physical taking may occur

when the government unreasonably interferes with a landowner’s right to use

and enjoy his or her private property. 12 When a government takes property

without compensating the landowner, the owner may recover damages for

inverse condemnation. 13 Whether particular facts rise to the level of a taking is a

question of law. 14 Mere negligence that eventually contributes to property

damage does not constitute a taking. 15 To establish a taking claim, the plaintiff

must show that “(1) a governmental entity intentionally performed certain acts (2)

9
Tex. Const. art. I, § 17(a).
10
See City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004).
11
Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).
12
Id.
13
Id.
14
Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591,
598 (Tex. 2001).
15
Id.

7
that resulted in a taking or damaging of property (3) for public use.” 16 Thus, only

an intentional act will give rise to liability under this constitutional provision. 17

Not every intentional act by a governmental entity will give rise to a taking

claim. A plaintiff’s taking claim may not be based on only an assertion that the

governmental entity intended to do the act that caused the damage; “[w]hen

damage is merely the accidental result of the government’s act, there is no public

benefit and the property cannot be said to be ‘taken or damaged for public

use.’” 18 But neither must a government intend to damage the property; “if the

government knows that specific damage is substantially certain to result from its

conduct, then taking liability may arise even when the government did not

particularly desire the property to be damaged.” 19 Thus, liability for a taking

arises when a governmental entity physically damages private property in order

to confer a public benefit if that 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

16
City of Dallas v. Zetterlund, 261 S.W.3d 824, 828 (Tex. App.—Dallas
2008, no pet.); see also Little-Tex Insulation Co., 39 S.W.3d at 598.
17
See Zetterlund, 261 S.W.3d at 828.
18
See Jennings, 142 S.W.3d at 313–14.
19
Id. at 314.

8
is ‘necessarily an incident to, or necessarily a consequential result of’ the

government’s action.” 20

Immunity

The State is generally immune from suit in the absence of an express

waiver of its sovereign immunity. 21 Immunity from suit (as opposed to immunity

from liability) deprives a trial court of subject matter jurisdiction in lawsuits in

which the State has been sued without the unit’s consent. 22 Cities are political

subdivisions of the State and are also entitled to sovereign immunity—referred to

as governmental immunity—when performing governmental functions. 23

Section 17 of the Texas Constitution waives immunity for a taking. 24 Thus,

sovereign immunity does not shield the State from a taking claim. 25 But because

the plaintiff in a suit against a governmental entity must allege a valid waiver of

immunity to show jurisdiction, a plaintiff in a taking suit must allege a valid taking

20
Id. (citation omitted).
21
State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007).
22
Miranda, 133 S.W.3d at 224.
23
City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Reata
Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
24
Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Porretto v.
Patterson, 251 S.W.3d 701, 707 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
25
Holland, 221 S.W.3d at 643.

9
claim. 26 That is, when the basis for jurisdiction is the assertion of a taking claim,

the taking claim alleged must be a valid one. 27 A trial court should therefore

grant a plea to the jurisdiction when a government defendant produces evidence

to show as a matter of law that the plaintiff cannot establish a viable taking

claim. 28

Here, the City argues that the evidence shows that the Halls do not have a

valid taking claim, and therefore the trial court did not have jurisdiction. Because

the City’s jurisdictional evidence also implicates the merits of the Halls’ case, the

trial court could not have granted the plea to the jurisdiction if the evidence

created a fact issue regarding jurisdiction. 29

National Flood Insurance Program (NFIP)

Much of the evidence in this case involves various documents produced

for or issued under a federal flood insurance program. We therefore briefly

discuss the program and some regulations issued under it.

26
See Tex. Ass’n of Bus., 852 S.W.2d at 446; see also Tex. Parks &
Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 390 (Tex. 2011) (holding that the
Trust “did not assert a valid takings claim giving the trial court jurisdiction over its
claim”).
27
See Tex. Ass’n of Bus., 852 S.W.2d at 477–78.
28
Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166
(Tex. 2013); Miranda, 133 S.W.3d at 228.
29
Miranda, 133 S.W.3d at 227–28.

10
 Congress enacted the National Flood Insurance Act of 1968 as part of Title

XIII of the Housing and Urban Development Act of 1968, establishing a national

flood insurance program “to provide previously unavailable flood insurance

protection to property owners in flood-prone areas.” 30 For a community to qualify

for the sale of federally-subsidized flood insurance, the community must adopt

floodplain management regulations designed to reduce or avoid future flood

damages. 31 The adopted regulations must satisfy, at a minimum, the criteria set

out in federal regulations issued under the program. 32

The applicable statutes and regulations of the program define various

terms that are used by the parties in this case. The parties’ pleadings and

evidence include references to the terms “flood plain,” “base flood elevations,”

and “100-year flood.” Federal regulations define a “flood plain” 33 as “any land

area susceptible to being inundated by water from any source.” 34 The term “100-

year floodplain” means an area that “is subject to inundation from a flood having

30
44 C.F.R. § 59.2(a) (last amended 2009); see also 42 U.S.C.A. §§ 4001,
4011 (West 2012 & Supp. 2013).
31
44 C.F.R. § 59.2(b).
32
Id. § 59.2(c).
33
The term is sometimes spelled as one word and sometimes as two. See
42 U.S.C.A. § 4004 (West Supp. 2013) (“floodplain”); 44 C.F.R. § 59.1 (last
amended 2009) (“flood plain”).
34
44 C.F.R. § 59.1.

11
a 1-percent chance of being equaled or exceeded in any given year.” 35 A “100-

year flood” is also called a “base flood.” 36 A “base flood elevation” refers to the

“elevation to which floodwater is anticipated to rise during the base flood.” 37 A

flood insurance premium is determined by “[t]he relationship between the [base

flood elevation] and a structure’s elevation.” 38

The parties also refer to a “Flood Insurance Rate Map” (Rate Map) which

is “an official map of a community on which the Federal Insurance Administrator

has delineated both the special hazard areas and the risk premium zones

applicable to the community.” 39 With respect to floods, a “special flood hazard

area” is the land in a community’s 100-year floodplain. 40

35
42 U.S.C.A. § 4004(a)(1).
36
See FEMA, Designing for Flood Levels Above the BFE 1 (2010)
(discussing the terms “100-year flood” and “base flood”), available at
http://www.fema.gov/media-library-data/20130726-1537-20490-8057/fema499_1
_6_rev.pdf; FEMA, Base Flood, http://www.fema.gov/national-flood-insurance-
program/base-flood (same).
37
FEMA, Base Flood Elevation, http://www.fema.gov/national-flood-
insurance-program/base-flood-elevation (last visited April 1, 2014).
38
Id.
39
44 C.F.R. § 59.1.
40
44 C.F.R. § 59.1. (defining “special hazard area”); see also
Floodsmart.gov, What is a Special Flood Hazard Area (SFHA)?,
http://www.floodsmart.gov/floodsmart/pages/faqs/what-is-a-special-flood-hazard-
area.jsp (last visited April 2, 2014) (stating that “[l]and areas that are at high risk
for flooding are called Special Flood Hazard Areas (SFHAs), or floodplains”).

12
 These special hazard areas are designated on a Rate Map or on another

type of map, the Flood Hazard Boundary Map. 41 The Rate Map “is prepared

after the flood hazard study for the community has been completed and the risk

premium rates have been established. The [Rate Map] indicates the risk

premium rate zones applicable in the community and when those rates are

effective.” 42

The parties also refer to a “Flood Insurance Study,” also called a “flood

elevation study,” which is “an examination, evaluation and determination of flood

hazards and, if appropriate, corresponding water surface elevations.” 43 FEMA

alternatively defines the term as “a compilation and presentation of flood risk

data . . . within a community” and states that when a flood study has been

completed for the NFIP, the information and maps are assembled into a report. 44

One purpose of a Flood Insurance Study is to develop floodway data that

communities use “to select and adopt floodways as part of the flood plain

management program” that is required by federal regulations. 45 The term

“floodway” as used in the regulations of the flood insurance program refers to

41
44 C.F.R. § 59.1.
42
44 C.F.R. § 64.3(a)(1) (last amended 2009).
43
44 C.F.R. § 59.1.
44
FEMA, Flood Insurance Study, http://www.fema.gov/floodplain-
management/flood-insurance-study (last visited April 2, 2014).
45
44 C.F.R. § 65.7(a) (last amended 1986).

13
“the channel of a river or other watercourse and the adjacent land areas that

must be reserved in order to discharge the base flood without cumulatively

increasing the water surface elevation more than a designated height.” 46 A Flood

Insurance Study report can be used in conjunction with a Rate Map to determine

whether a site is located in a floodplain or floodway and to determine the base

flood elevation. 47 The Flood Insurance Study report for a community includes

information on the community’s flood problems and flood protection; the

engineering methods used in the study; the hydrologic analysis (“how much

water will flow through the floodplain during peak floods”); and the hydraulic

analysis (“how high the water will get”); where the flood water will go; and the

floodway study and mapping, if the study includes a floodway determination. 48

The Act directs the Administrator of FEMA to “assess the need to revise

and update all floodplain areas and flood risk zones” at least once every five

years, or more often if necessary. 49 Based on this assessment, the Administrator

46
44 C.F.R. § 59.1; see also First Chicago Bank of Ravenswood v. City of
Elmhurst, No. 90 C 6362, 1991 WL 160886, at *1 (N.D. Ill. Aug. 14, 1991) (mem.
op.) (“A flood plain is an area subject to flooding, while a floodway is an area
within a flood plain capable of carrying fast-moving flood discharge.”).
47
FEMA, Using NFIP Studies and Maps, in Managing Floodplain
Development Through the National Flood Insurance Program 4-3 (2007),
available at http://www.fema.gov/library/viewRecord.do?id=2108 (last visited April
2, 2014).
48
Id. at 4-3–4-4.
49
42 U.S.C.A. § 4101(e) (West 2012 & Supp. 2013).

14
must revise and update any floodplain areas and flood-risk zones. The

Administrator must also make updates or revisions if requested to do so by a

state or local government if the government unit’s request states that specific

floodplain areas or flood-risk zones in the state or locality need revision or

updating and if sufficient technical data justifying the request is submitted. 50

A local government may request FEMA to comment on a planned project

by requesting a conditional letter of map revision (CLOMR). 51 A CLOMR is

“FEMA’s comment on a proposed project that would, upon construction, affect

the hydrologic or hydraulic characteristics of a flooding source and thus result in

the modification of the existing regulatory floodway, the effective base flood

elevations, or the Special Flood Hazard Area.” 52 After the project’s completion,

the government may request that FEMA issue a letter of map revision (LOMR).

Regulations define a LOMR as “FEMA’s modification to an effective [Rate Map],

or Flood Boundary and Floodway Map (FBFM), or both.” 53 A Flood Boundary

50
Id. § 4101(f).
51
44 C.F.R. § 65.8 (last amended 1997) (“A community . . . may request
FEMA’s comments on whether a proposed project, if built as proposed, would
justify a map revision. FEMA’s comments will be issued in the form of a letter,
termed a Conditional Letter of Map Revision.”).
52
44 C.F.R. § 72.2 (last amended 1997).
53
Id.

15
and Floodway Map is a type of flood map (no longer produced by FEMA) that

shows only the floodway and flood boundaries. 54

Analysis

The City begins its brief by quoting some lines from Creedence Clearwater

Revival’s song “Who’ll Stop the Rain?” The City believes that its actions did not

contribute to the problem on the Property, but we assume that the quoting of the

lyrics is not meant to make light of the Halls’ situation. But the City did not

explain how the lyrics could help us decide this case, and we therefore give no

weight to them.

Whether the Halls Alleged a Valid Taking Claim

In its first issue, the City argues that the trial court did not have subject-

matter jurisdiction over the Halls’ inverse condemnation claim because the

evidence showed that the City did not know and was not substantially certain that

the actions it took to approve development or construct public improvements

would result in specific damages to the Property.

The Halls’ Petition

To address the City’s issue, we must look at the Halls’ claim, the City’s

plea to the jurisdiction and jurisdictional evidence, and the Halls’ response and

evidence. In their petition, the Halls claimed that “[t]he effect of the raising of the

road bed adjacent to the Property was to create a dam which caused any water

54
FEMA, Flood Map, https://www.fema.gov/national-flood-insurance-
program-2/flood-map (last visited April 2, 2014).

16
backing up the creek to be pooled on the Property rather than continuing to back

flow up Bear Creek.” They claimed that this project, the City’s actions in

managing and maintaining Big Bear Creek, and the City’s authorization of the

development of other properties by other persons effectively “turned the Property

into a retention pond 55 which would hold flood waters on the Property rather than

permitting them to back up across Keller Smithfield Road.” The Halls alleged

that “it was [the City]’s intent to create the circumstance whereby, in the event of

localized flooding, Keller Smithfield Road would remain open and the park would

not be flooded” and that “the City knew that the result would be that any such

flood waters would be pooled and retained on the Property, rather than flowing

back upstream across the road and into the city park.” They asserted that in

changing the bridge and raising the roadway, the City “knew that the resulting

effect would be to cause rainfall and runoff to pool and flood the Property while

preventing and saving the road and the adjacent city park from flooding.”

55
The Halls used the term “detention pond” in their response to the plea to
the jurisdiction, and that is the correct term for the effect they describe. See
Laramie County Conservation District, Best Management Practices for
Stormwater Runoff, Ponds, http://www.lccdnet.org/wp-content/uploads/2011/04/
Ponds.pdf (last visited April 2, 2014) (stating that a “retention pond has a
permanent pool of water that fluctuates in response to precipitation and runoff
from the contributing areas,” whereas detention ponds “are usually dry except
during or after rain or snow melt” and “[t]heir purpose is to slow down water flow
and hold it for a short period of time”). In either case, their assertion is that the
Property has become a water storage facility that holds stormwater that, before
construction of the improvements, would have flooded the road and park.

17
The City’s Plea to the Jurisdiction

The City alleged that the trial court did not have jurisdiction because (1) the

evidence established as a matter of law that the City did not know and was not

substantially certain that damage to the Property was going to occur when it took

the actions complained of, (2) the evidence established as a matter of law that

none of the actions of the City proximately caused the flood damages, and (3)

the Halls failed to comply with the notice provision of the City’s charter.

The City’s argument below and on appeal was that “[t]he evidence shows

that, at the time the City approved or built the complained of projects, there was

no information to suggest that those projects would cause flooding on the Hall

property.” If and to the extent that the City argues that it was not explicitly told

that there was cause for concern and therefore the trial court had no jurisdiction

because substantial certainty can never be shown by circumstantial evidence, we

reject this line of thinking. 56 We will consider, however, whether the jurisdictional

evidence in the record, including circumstantial evidence, raised a fact question

about the City’s knowledge, taking as true all evidence favorable to the Halls and

indulging every reasonable inference and resolving any doubts in their favor. 57

56
See, e.g., City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008)
(stating, in the context of knowledge of a dangerous condition, that circumstantial
evidence shows actual knowledge of the condition “when it ‘either directly or by
reasonable inference’ supports that conclusion”) (citation omitted).
57
See City of Elsa, 325 S.W.3d at 625 (stating that in reviewing a plea to
the jurisdiction, we consider “any evidence in the record that is relevant to the
jurisdictional issue”); Miranda, 133 S.W.3d at 227–28.

18
 The City argued that the Property has always had a tendency to flood and

no acts of the City made the flooding problem worse, and therefore the Halls

could not show intent or causation. The City observed that most of the Property,

including where the barns are located, was already in the floodplain before any

construction by the City. In support of this assertion, the City attached

documents related to the City’s participation in the NFIP. The documents

included excerpts from the 1982, 1993, and 1995 Rate Maps covering the City,

the 1982 Flood Insurance Study, the 1995 Flood Insurance Study, and a 1982

Flood Boundary and Floodway Map.

The City’s Evidence

In reviewing the City’s evidence, we are careful not to conflate the

standards and practices relating to a municipality’s participation in the NFIP with

the law on what actions by a government do or do not constitute a taking. Thus,

the City’s compliance with the NFIP does not by itself preclude a taking claim.

But the City’s correspondence with FEMA in relation to the NFIP program has

relevance to this taking suit to the extent that the City states in the

correspondence what effect it expects certain construction projects to have on

floodways.

The City asserted that the 1982 Rate Map indicated that the base flood

elevation near the Property was between approximately 645 feet and 643 feet.

The attached Rate Map has been marked up, encircling a section of the map,

presumably to show the Property’s location. Part of this marked section shows a

19
base flood elevation of 645 feet, but the markings obscure the other base flood

elevation measurement that is printed on the section.

The 1982 Flood Boundary and Floodway Map also has a section of it

circled. The marked section is labeled “RM 5” and shows a cross-section of Big

Bear Creek that is labeled “AF.” The City asserted that this cross-section of the

creek is immediately downstream from Keller Smithfield Road. The map has a

chart of “elevation reference marks” indicating the base flood elevation for the

section labeled RM 5, but the chart is illegible. 58 The 1982 Flood Insurance

Study, excerpts of which the City attached to the plea, indicated that the base

flood elevation at cross-section AF was 644.9 feet. From these documents, then,

we can conclude that in 1982, the federal government concluded that the base

flood elevation near the Property was around 645 feet.

The City asserted that the 1993 and 1995 Rate Maps “depict[ed] near

identical conditions” to those depicted in the 1982 NFIP documents. The copy of

the 1993 Rate Map in the appellate record is difficult to read, but the circled part

of the map (presumably the section where the Property is located), has a base

flood elevation of what looks like 645 feet. The Rate Map included with the 1995

Flood Insurance Study shows a cross-section of the creek just downstream of

Keller Smithfield Road as having a base flood elevation of 645 feet. As the City

58
The dissent disagrees with our characterization of this chart as “illegible.”
The print on the chart (including the original exhibit, which was included in the
record) is so small and blurry that we are unable to read it even with the aid of a
magnifying glass, hence our description of it as illegible.

20
pointed out in its plea, the Flood Insurance Study includes a chart that more

precisely lists the base flood elevation at that cross-section at 644.9 feet.

Accordingly, the 1995 NFIP documents show about the same base flood

elevation near the Property as depicted in the 1982 documents.

After asserting these facts, the City discussed in its plea various

documents filed with FEMA regarding the development about which the Halls

complained. It began with revisions to the Rate Map that were sought because

of the golf club’s construction. This CLOMR request was submitted by an

engineering firm in January 1997 on behalf of the golf club developers. The City

attached a few pages of the request to its plea, including the page on which the

applicant stated that all increases to the base flood elevation resulting from the

construction would be located on the golf club’s property. FEMA issued the

requested CLOMR, stating in the letter that it had reviewed the data submitted

and that if the project were constructed as planned, “a revision to the [Rate Map]

would be warranted.”

The City stated in its plea that the work maps and calculations done “on

the several creek cross-sections located at or near the [Property] indicate that the

changes made by the golf course construction would not significantly alter the

100-year flood plain at the Hall property.” We assume the City refers to the base

flood elevation calculations, as these are the only calculations from the CLOMR

that the City referenced and explained in the plea. The City stated in the plea

that the map included with the CLOMR request indicated that the base flood

21
elevation at cross-sections of the creek near the Property were between 642.87

and 644.58 feet before construction and would be 641.76 and 644.41 feet after

construction. The chart from the part of the CLOMR that was included in the

record lists cross-sections of the creek. One column on the chart, labeled

“NCWSEL,” contains numbers at cross-sections AC and AD that match these

figures cited by the City, except that one of the numbers is 642.78 rather than

642.87. Assuming that this column refers to the base flood elevation, this

CLOMR request shows that the engineering firm represented to FEMA that it

estimated that the construction of the golf club would result in a slightly lower

base flood elevation near the Property.

The City then discussed in its plea the effect of the construction of a

pedestrian bridge over Big Bear Creek. This bridge was constructed

downstream of the Property, 690 feet downstream of Keller Smithfield Road. An

April 2001 study was conducted by an engineering firm to evaluate the effect of

installing the bridge. The City does not state who commissioned the study or

who built the bridge, but the study is titled “Big Bear Creek Trail Connection” and

appears to relate to an extension of the City’s municipal hike and bike trail

system. Two different plans were considered. The study concluded that one

plan would cause “a slight increase in the water surface elevations through the

study reach” that “could further damage properties already in the floodplain in the

event of a flood event.” With the second plan, elevations would remain the same

or be slightly lower.

22
 Two charts included in the study show current elevations at certain creek

cross-sections and projected elevations using the two plans. Several sections

have asterisks drawn next to them, and we assume these asterisks indicate

cross-sections near the Property. The chart for the first plan depicts a rise in the

base flood elevation of between 0.12 and 0.09 feet (about 1.5 inches) at the

marked cross-sections, and the chart for the other plan shows a lower base flood

elevation of about 0.03 feet by the marked cross-sections. The report stated that

“[t]he velocities are slightly higher in the upstream cross sections, but there are

no erosive velocities noted.” The bridge was constructed using the second plan.

Thus, according to this engineering firm’s representations, construction of the

pedestrian bridge should have resulted in a slightly lower base flood elevation at

cross-sections of the creek that we assume are near the Property.

The City then discussed in its plea the construction of Keller Town Center

and the Keller Smithfield Road bridge. The City attached some of the pages

from a request for a CLOMR, submitted to FEMA in June 1999, regarding the

Town Center, the bridge, and the new Bear Creek Parkway. The City asserted

that a study done in connection with the request showed that the projects would

cause no increase or change in the base flood elevation or water velocity at the

Property. The City stated that FEMA issued the CLOMR in January 2000.

The excerpts of the CLOMR request that the City attached to its plea

included a chart and a map. The map showed numbered cross-sections of Big

Bear Creek, and the chart indicates the base flood elevation at those cross-

23
sections. The chart has an asterisk next to two sections. We assume that these

are the sections that are at or near the Property. The base flood elevations at

these two sections are 643.82 feet and 643.95 feet, respectively. The chart

states that the base flood elevation for the first section before construction was

644.89 feet, indicating a slight decrease in the base flood elevation. The chart

does not contain any data for the pre-construction base flood elevation of the

second section. This information shows that in 1999 the City represented to

FEMA that these construction projects would cause a slight decrease in the base

flood elevations.

FEMA issued the requested CLOMR in 2000. The CLOMR stated that,

based on the data submitted, if the project were constructed as shown on the

map submitted with the request and if FEMA received certain data, a revision to

the Rate Map would be warranted. It observed that, based on the submitted

data, as a result of the proposed projects, the base flood elevations would

increase in some places along Big Bear Creek and decrease in others. It also

noted that the width of the floodplain and regulatory floodway for Big Bear Creek

would increase in some areas and decrease in others. 59

The City attached to and discussed in its plea two separate LOMRs issued

by FEMA with respect to the projects included in the 2000 CLOMR. The first

59
The CLOMR also stated that there would be increases along a tributary
that “appear to be in violation” of NFIP regulations, but the CLOMR does not
indicate that the tributary is at or near the Property.

24
LOMR related to the Town Center and the parkway. A request for this LOMR

was submitted to FEMA in November 2002. This LOMR request came after

completion of the Town Center and Bear Creek Parkway but before completion

of the Keller Smithfield Road bridge project. The City asserted in its plea that this

LOMR request showed either no changes or a decrease of both the flood

elevation and water velocity at the cross-sections of the creek at the Property.

The City included some of the pages from this request, including a chart that, like

the 1999 CLOMR request, lists cross-sections of the creek and the base flood

elevations before and after completion of the projects. Five cross-sections are

marked with an asterisk. These cross-sections show no changes to the base

flood elevations and slight increases or decreases in the encroachment water

surface elevation; the term “encroachment water surface elevation” is not defined

in the LOMR or mentioned in the plea, so we assume that the City did not believe

this section of the chart to be relevant to the jurisdictional issue. Thus, this

evidence shows that in 2002, the City represented to FEMA that, as per its

previous estimates, there was no increase in the base flood elevations of the

creek near the Property after construction of the Town Center and parkway.

The second LOMR request related to the construction of the bridge on

Keller Smithfield Road. This LOMR request was submitted to FEMA in

September 2009. The LOMR request was submitted after a revised Rate Map

and Flood Insurance Study, discussed below, became effective in September

2009. The attached portions of the request include charts indicating that the

25
Bear Creek cross-section AK had a base flood elevation before the project of

642.6 and an elevation of 642.4 feet after the project.

Thus, this LOMR request shows that the City represented to FEMA that

the construction of the Keller Smithfield Road bridge would result in a slight

decrease of the base flood elevation at this cross-section of the creek. FEMA

issued the requested LOMR in April 2010. The LOMR revised the base flood

elevation for cross-section AK in accordance with the City’s request. 60

The City also discussed in the plea various revisions to the Rate Map and

the Flood Insurance Study covering Tarrant County. The City stated that in

2007, FEMA had a new Flood Insurance Study conducted and made revisions to

the Tarrant County Rate Maps in light of the new Flood Insurance Study. These

maps became effective on September 25, 2009. Preliminary copies were given

to the City on May 31, 2007, a few weeks before one of the floods that the Halls

complained about in their suit. The City asserted that, under the 2007

preliminary Flood Insurance Study and Rate Map, the Property “continues to be

almost completely inundated by the 100-year flood plain” as it had been under

the 1982, 1993, and 1995 Rate Maps. The City stated that the new Flood

Insurance Study showed a lower base flood elevation at cross section AK

60
The LOMR again showed an increase in base flood elevation for several
cross-sections of the same tributary mentioned above, which appears to be
somewhere upstream of Keller Smithfield Road.

26
immediately downstream of the Keller Smithfield Road bridge. However, we are

unable to read the copy of the Rate Map that was included in the record.

The excerpt of the Flood Insurance Study pointed out by the City is a chart

listing base flood elevations for cross-sections of the creek. For cross-section

AK, which the City contends is the cross-section immediately downstream of

Keller Smithfield Road bridge (which would presumably be indicated on the map

if we were able to read it), the base flood elevation is 642.6 feet. The City also

pointed to a chart showing “flood profiles” for the creek, and from our reading of

it, this chart does indicate that the cross-section AK is near Keller Smithfield

Road. The City also included a 2009 letter from FEMA stating that the

preliminary base flood elevations were considered final and that the Rate Map

would become effective on September 25, 2009.

The City concluded this section of its plea by arguing that “[t]he evidence

shows that, at the time the City approved or built the complained of projects,

there was no information to suggest that those projects would cause flooding on

the Hall property.” It stated that “[t]he evidence shows that, from the earliest

studies, the Hall property was always susceptible to flooding and nothing the City

has done since then has exacerbated or worsened that condition. Thus, the

evidence establishes the Halls cannot satisfy the intent element of their inverse

condemnation claim.” The City argued that this same evidence showed there is

no proximate cause.

27
 To summarize, the City’s evidence indicated that in 1982, cross-sections of

the creek at or near the Property had a base flood elevation of between 643 feet

and 645 feet; that by 2009, a cross-section of the creek near the Property had a

base flood elevation of 642.6 feet; and that within that time frame, the City’s

estimates, accepted by FEMA, showed no significant variance in the base flood

elevation of the creek near the Property. That is, the estimates of engineering

firms retained by the City were that after all the construction, flood water would

not rise to a higher level than it would have risen before the construction. FEMA

accepted these estimates, and the Flood Insurance Study done on FEMA’s

behalf in 2007 did not contradict the estimates. The City argued below and

argues here that this evidence demonstrated as a matter of law that it did not

know that the Property was substantially certain to become a de facto detention

pond as a result of the improvements complained of.

The Halls’ Response: The Facts Alleged

In the Halls’ response, they asserted that before the public works projects

undertaken by the City, Keller Smithfield Road and its bridge were at

substantially the same elevation as the Property and within the creek’s floodplain.

The City raised the road nine feet above the elevation of the Property, the bridge

was substantially raised, and its opening was substantially widened.

The response further asserted that from 1982 to the present, the City

underwent “significant growth in urbanization such that the drainage of [the

creek] must carry substantially more water from rain and storm run-off than it did

28
in 1982.” They claimed that the “detention pond” problem developed because

“[a]n increased volume of water now floods through a significantly larger opening

under the bridge [over the creek] into the same size creek which transects the

Property and flows out through the same sized outlet at its south boundary onto

property owned by [the golf club].” And “[a]s storm water run-off exceeds the

capacity of [the creek’s] channel to carry it south through the Property, [the creek]

floods up over the Hall Property, well beyond the drainage easement . . . and in

and from areas not subject to the easement.” Then, “[a]s such flood waters rise,

they cross the entirety of the Property, ultimately reaching the raised roadway

approaches of [Keller Smithfield Road], which act as a dam,” resulting in the

Property “storing the storm water run-off until such time as the constricted outlet

through [the golf course] can allow the run-off to dissipate.”

The Halls alleged that before all the development, the Property had been

subject to occasional, relatively minor flooding of not more than six inches, but

that since the completion of the Keller Smithfield Road project and the bridge, the

Property has suffered at least six severe floods that inundated the Property to a

depth of between three and five-and-a-half feet. They asserted that each of the

floods was caused by a rain event that, under the standards of the City’s

development code, did not exceed a two-year, one hour rain event or a 100-year

twenty-four hour rain event.

The Halls further asserted that the City knew of the increasing storm and

rainfall run-off being carried by the creek due to increasing development, that

29
City records showed that increased run-off due to development was and is

substantially certain to cause flooding of the Property, and that the City has not

undertaken any remedial action nor paid any compensation for the invasion of

the Property by flooding or storm-water runoff.

The Halls’ Response: The Attached Evidence

The evidence attached to the Halls’ response included Kim’s affidavit,

Thomas’s affidavit, and an affidavit and report from an engineer. In Kim’s

affidavit, she stated that from when she first acquired the Property up until

completion of the bridge and road project, there would be flooding at the Property

from time to time. This would occur during times of significant rainfall, when

water from upstream would flood the park, spill over Keller Smithfield Road, and

run into the Property. She stated that

Beginning in February 1999, I began making inquiries with the City
expressing my concern about [the] growing drainage problems on
the Property. Among other occasions, such concerns were
expressed in a letter I wrote to Lyle Dresher, who was then City
Manager of [the City] on February 18, 2001. . . . These concerns
were also expressed at other times in meetings with various City
officials and representatives, including Ed Ilschner [the director of
public works for the City], and the engineering firm [retained by the
City to prepare various NFIP documents]. These concerns grew as
development around the Property continued, and especially once
construction of the road and bridge project was underway, when I
was able to see and understand the extent to which the Property
was being turned into a “bowl” with the raised roadway of Bear
Creek Parkway East immediately south of the Property, and now
significantly raised roadway of Keller-Smithfield Road South
immediately west of the Property. These concerns resulted in me
writing an email to [Ilschner] on April 14, 2005, in which I complained
that it appeared the Property was being turned into “a lake.”

30
 ...

8. In May of 2005, I received a letter from [Ilshner], which spoke
about a two-year plan to improve drainage, and which listed my
complaints as being categorized as related to “potential public storm
water capacity or erosion problems.”

...

9. Since completion of the road and bridge project, the Property
has suffered six significant flood events [in 2007, 2009, and 2010].
In each of these instances, the Property flooded to a depth of three
feet or more.

The Halls also included Thomas’s affidavit, which made similar allegations.

He further stated that

With the old road and bridge configuration, the opening under the
existing bridge and the [Big Bear Creek] creek channel were
substantially the same width and depth as where [Big Bear Creek]
crossed the south line of the Property flowing out of the Property and
into the [golf club]. With the new configuration, the outflow opening
remained the same, but the creek channel and bridge opening at
[Keller Smithfield Road] and [the creek] were substantially larger—
on a scale of 3 to 4 times larger. The creek channel was widened,
there were concrete abutments and rip rap in place where
vegetation had previously lined the banks of the creek, and the
height of the bridge raised the top of that opening by almost 10 feet
above the previous bridge/roadway level, such that in times of flood
it was clear that much more water would flow through the opening
and downstream before reaching the much smaller outflow opening
on our south property line. With nowhere for that increased flow to
exit, it was clear that it would inundate the Property in an
unprecedented manner.

5. Since the completion of the road and bridge project . . . the
flooding we have experienced at the Property in fact far exceeds that
which previously occurred at the Property.

The Halls included excerpts from the deposition of Gregory Dickens, the

City’s current public works director, who is a licensed professional engineer and

31
certified floodplain manager, in which he acknowledged that the only reason for a

roadway to be raised out of a floodplain is to prevent flooding of the roadway:

“there wouldn’t be another reason. That would be why you would raise the road.”

This testimony indicated that the City raised Keller Smithfield Road to keep water

from flooding it.

The Halls also attached an affidavit and report from licensed professional

engineer Frederick Ehler. In his affidavit, he stated that since Kim’s acquisition of

the property in 1985, “there have been [three] developments and [two] road

improvement projects constructed within a 600 foot radius to the Property.” He

opined that “[t]hese projects, combined with substantial development upstream

(and downstream) from the Property, have resulted in much more water being

carried as run-off in the BBC drainage basin, even in periods of relatively light

rain.” He stated that government regulations and city ordinances required each

of the projects to submit impact studies of how the development would affect

drainage in the area, but “[d]espite the fact that in each case such submissions

were done, and that each such submission was a part of the City’s records, each

succeeding project was considered and approved based on a flood and drainage

model which did not account for the prior development and increased run-off

along [the creek] or the cumulative effect of the changes in drainage which

resulted from such prior development.” [Emphasis added.] He concluded that

“[t]he cumulative effect of these approved development plans was and is

substantially certain to cause flooding at the Property.”

32
 Ehler further stated that per his investigation, before the City’s

improvements, the Keller Smithfield roadway and bridge were narrow, and the

creek channel was quite narrow. After the project, the road and bridge are now

approximately nine feet above their prior elevation, the Property, and a park

immediately west of Keller Smithfield Road. The bridge opening was increased

and the shape of the opening was changed. He stated that before construction,

water that “would have backed upstream due to the constriction of the narrow

bridge opening prior to overtopping the approach embankments and sheet flow[]

slowly over [Keller Smithfield Road] from the park onto the Property, is now

diverted through the widened opening under the bridge and roadway.”

Ehler attached his report to his affidavit. In the report, he stated that

“[i]ncreased development in the Big Bear Creek watershed since the 1982 Flood

Insurance Study . . . was completed resulted in an increase in stormwater

discharge into Big Bear Creek and increased water surface elevation in the

creek.” He acknowledged that the Property is located within the 100-year

floodplain. He also stated that none of the storm events that the Halls

complained of exceeded the two-year, one-hour storm event as defined in the

City’s development code. They also did not exceed a 100-year, 24-hour storm

event.

Ehler noted that the CLOMR and LOMR applications from 1997 through

2002 used hydrologic data developed by the 1982 FEMA Flood Insurance Study

for Tarrant County, but that significant changes due to development occurred in

33
the watershed between the time of the 1982 Flood Insurance Study and the 1999

CLOMR application. The August 23, 2000 revision to the Flood Insurance Study,

however, did not include all development that occurred in the City between 1981

and 2000.

Ehler noted that the Halls had expressed concern to the City about

drainage problems on the Property, including a letter sent by the Halls in

February 1999 during the construction of the golf club and Bear Creek Parkway,

and an April 2005 email relating to construction on Keller Smithfield Road. He

noted that in May 2005, an engineering firm hired by the City sent a letter to the

Halls stating that “there is no indication of any change to the base flood elevation

across the subject (Hall) property.”

Ehler also noted that the 1997 CLOMR request included a note from the

City that stated, “This is to advise [FEMA] that the [City] does not want a

regulatory floodway along a portion of Big Bear Creek . . . . Specifically, we want

the [Rate Map] revised to show no floodway between cross-sections 133650 and

148320.” Ehler noted that the Property is located approximately at station

148120.

Ehler concluded that there were significant changes in the watershed due

to development between the 1982 Flood Insurance Study and the 1999 CLOMR

application. He stated that “[s]tormwater runoff is generated when precipitation

from rain and snowmelt events flows over land or impervious surfaces and does

not percolate into the ground.” He noted that “[g]reater population density

34
increases the amount of impervious area,” and “[i]ncreased impervious area

reduces the amount of natural ground available to absorb rainfall runoff, resulting

in increased surface water runoff.” He opined that “it is our determination that in

the vicinity of the Hall residence, due to recent upstream and downstream

improvements and modifications to the watershed it is now more likely that a

storm of lower intensity will produce a flood event of higher magnitude.”

He stated that a 2000 Flood Insurance Study (which was not included by

the City with its plea to the jurisdiction) contained a table of 60 LOMRs from

between 1995 and 2000, but they did not contain floodplain revisions to Big Bear

Creek and did not list any projects in the City. He concluded that “the August 23,

2000 revisions to the [Flood Insurance Study] did not include development that

occurred in the City of Keller between 1981 and 2000.”

The Halls also included evidence relating to their notifying City staff about

their concerns. In a 2001 letter from Kim to then-city manager Lyle Dresher, she

stated that

“[w]hen I spoke to you last by phone (February 15, 2001) I had just
watched the west area of my property fill with water from the run-off
of the roadways Keller-Smithfield and Bear Creek Parkway. The
water then cascaded across the horse arena, cut a torrent across my
driveway[,] and created several very large pools of water over my
property. Five hours after the flooding began . . . there were still
bodies of water that were three to four inches in depth.”

She mentioned in the letter that they had had several conversations about the

issue and that Dresher had visited her property.

35
 The Halls also included an email from Kim to then-public works director

Ilschner from April 2005 in which she stated, “I know you are going to hate me

after all this is over but, I want to make SURE that drainage is being handled. It

looks like I am going to be a lake. Please follow up.” Also included was the May

2005 letter Ilshner sent to Kim, which mentioned a two-year study phase for

improving drainage and classifying her concerns as related to “potential public

storm water capacity or erosion problems.” Specifically, the letter stated, “We

received and appreciated your input into our City’s storm water master planning

process. As part of the data collection phase for the [City’s] Comprehensive

Storm Water Master Plan, [engineering firms] have helped us categorize over

150 citizen comments citywide into four categories.” The category into which

Kim’s comment was classified was “potential public storm water capacity or

erosion problems.” There was also a category for “potential private property

storm water problems,” but her comment was not included in that category. The

letter went on to say that the study phase of the project would be conducted over

the next two years and that “[a] project may be developed to address your

comment for possible inclusion in a future capital improvement program.”

In summary, the jurisdictional evidence was that the City knew that

development has an effect on flood risk; that it knew that much of the Property

was in the floodplain; that Kim believed that the Property was experiencing

increased flooding as the area became more developed and that she

communicated this concern to the City before all of the improvements were

36
made; that the City raised Keller Smithfield Road to get it out of the floodplain;

and that the water that formerly collected on that road would now go someplace

else instead (which was in fact the reason for raising the road).

The City argued and produced evidence to show that the base flood

elevation near the Property did not rise due to development, but the Halls’ expert

raised questions about the validity of some of this evidence with his assertions

about the omission of City projects. The City’s evidence only relates to how high

the water could get during a base flood event at or near the Property. It does not

show as a matter of law that the City did not know that water would collect on the

Property more frequently and in storms of less magnitude. It did not, for

example, show that it consulted experts about whether the water that once

collected on Keller Smithfield Road would collect on the Property after the road

was raised, since it would no longer collect on the roadway, or whether the

raising of the roadway would effectively create a dam, trapping water on the

Property. 61

In other words, nothing in the City’s evidence showed that the City did not

know or believe that the reason that the water would not rise to about a certain

level in the floodway generally was because the Property could serve as a

61
See Bennett v. Tarrant Cnty. Water Control & Imp. Dist. No. One, 894
S.W.2d 441, 448–49 (Tex. App.—Fort Worth 1995, writ denied) (stating that
taking claims “must be decided on the particular facts of each case . . . and must
be resolved through reason in light of common sense and experience”)
(emphasis added).

37
detention pond. The Halls’ evidence at least raised a fact question about

whether the Halls made the City aware that this was a concern. And in addition,

Ehler’s affidavit and report raised a fact question about whether the data that the

City claimed supported its actions accurately reflected the real state of

development in the area. Whether or not this evidence would be enough to

sustain a jury verdict in the Halls’ favor, it is enough to raise a question of fact

about what the City knew such that the trial court did not err by denying the plea

to the jurisdiction.

The City argues that the Halls asserted that it had the requisite knowledge

“because the City knew that increased storm/rainfall runoff would result from all

upstream and downstream development.” It counters that the Wilson 62 case

disposed of “the argument . . . that with each development, the City knew that

runoff would increase and raise the levels in Big Bear Creek.”

We first note again that the Halls’ evidence raised a question about

whether the CLOMR and LOMR requests used data that were not based on

current conditions. We further note that the fact situations and procedural

posture of Wilson make it distinguishable from this case. There is a difference

between an argument that nothing presented to the City raised flags and so it

proceeded with its plans, and an argument that the City foresaw that this

particular problem could arise, causing it to consult with experts, who told the

62
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

38
City that this particular problem would not result from its actions. The former is

what the City argues in this case, and the latter situation is what occurred in

Wilson. 63 Here, the City did not argue and points to no evidence demonstrating

as a matter of law that it had become concerned that the proposed improvements

would effectively turn the Property into a detention pond and that it sought out

expert opinion about whether that might happen.

Also, the appeal in Wilson came after a jury trial. 64 Here, the appeal is

before this court after a ruling on a plea to the jurisdiction, not a judgment after a

jury trial. We are considering only (1) whether the Halls pled a valid taking claim

and (2) whether the jurisdictional evidence at least raises a fact issue on inverse

condemnation. At this point in the proceedings, the Halls did not have to

establish by a preponderance of the evidence, much less as a matter of law,

what the City knew. Thus, Wilson does not dictate the holding in this case.

The City also argues that development that occurs upstream is beyond the

City’s jurisdiction and therefore beyond its control. The Halls have never argued

that the City can or should control development beyond its borders. And this

argument does not address the fact that in planning its own improvements,

nothing prevents the City from considering the effect of all development that

would affect the floodway. The City does not explain how its own conclusions

63
See id. at 828–29.
64
Id. at 808.

39
about how development will affect the floodway can be accurate if it does not

take actual conditions and factors affecting the floodway into consideration.

The City also argues that the City’s regulations require development to be

designed such that post-development runoff remains the same as pre-

development runoff. As stated above, the Halls’ expert addressed these

regulations, stating that the projects submitted impact studies, but “each

succeeding project was considered and approved based on a flood and drainage

model which did not account for the prior development and increased run-off

along [the creek] or the cumulative effect of the changes in drainage which

resulted from such prior development.” Thus, the fact that development plans

included impact studies does not address the question of whether those studies

adequately addressed potential flooding problems created by the development

and whether the City should have relied upon them.

Toward the end of its brief, the City argues that “there is no suggestion

about what the City should do to remedy the flooding. There is no switch to flip

or valve to turn to keep the rain from falling from the sky.” We are sure that this

statement was intended to be humorous rather than merely gratuitous snideness

and that the City does not seriously suggest that there is no possible remedy to

stop a property from flooding when it rains. And of course, whether there is a

remedy is irrelevant to the Halls’ claim for compensation. All that matters on the

question of compensation is whether the City took acts for a public benefit that it

knew were substantially certain to cause damage to the Halls’ property. We hold

40
that the City failed to establish as a matter of law that it did not have the requisite

knowledge to sustain a taking claim or that nothing it did made flooding on the

Property worse.

The Trial Court’s Exclusion of Evidence

Also under this issue, the City complains about the trial court’s exclusion of

some of its jurisdictional evidence. The Halls objected to a number of the City’s

exhibits attached to its plea, some on the ground that it was expert testimony

offered without designation and others on the ground that they were hearsay.

The trial court sustained some but not all of the Halls’ objections. After the trial

court’s ruling, the only evidence provided by the City that the trial court

considered in making its ruling was the City’s charter, aerial photographs of Big

Bear Creek, excerpts from the City’s Unified Development Code, the 1982 Rate

Map that applied to the City, the 1982 Flood Insurance Study, the 1993 Rate

Map, the 1995 Rate Map and Flood Insurance Study, a notice of claim letter from

the Halls’ attorney, the plat for the Property, the City’s request for admissions to

the Halls, and the Halls’ response to the request.

For some of the evidence that the trial court excluded, the City does not

explain its relevance in its brief. Generally, we do not have any duty to search

the record and determine if evidence within it is relevant. 65 That being the case,

65
See Hall v. Stephenson, 919 S.W.2d 454, 466–67 (Tex. App.—Fort
Worth 1996, writ denied); see also Harper v. Harper, 8 S.W.3d 782, 784 (Tex.
App.—Fort Worth 1999, pet. denied).

41
if we determined that this evidence was admissible, should we then consider it in

our analysis, even if the City did not discuss it in its brief?

Some case law suggests that when reviewing a plea to the jurisdiction, we

should review all admitted evidence, even if the appellant in the case does not

direct us to consider it or discuss the evidence as part of its analysis. In Texas

Air Control Board, the Supreme Court of Texas discussed the role of an appellate

court when it questions standing (a component of subject-matter jurisdiction) on

its own. 66 It stated that “when a Texas appellate court reviews the standing of a

party sua sponte, it must construe the petition in favor of the party, and if

necessary, review the entire record to determine if any evidence supports

standing.” 67

This language does not directly address whether an appellate court must

review the entire record when the court is considering jurisdiction in an appeal

from the denial of a plea to the jurisdiction, including evidence that is not

discussed in the appellant’s brief. Both sides know that jurisdiction is at issue,

the plaintiff has the opportunity to amend its pleadings to cure defects and to

produce evidence as necessary to show jurisdiction, and the defendant has the

opportunity to show the lack of jurisdiction. An appellate court in such a case is

66
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex.
1993).
67
Id. at 446 (emphasis added).

42
facing a different procedural circumstance entirely than one in which the court

raises the issue for the first time on appeal.

Some courts have applied the language in Texas Air Control Board to hold

that courts of appeals also consider the entire record in the appeal from a trial

court’s ruling on a plea to the jurisdiction, not just when considering jurisdiction

for the first time on appeal. 68 The Supreme Court has provided support for this

approach, stating in Miranda, a case involving a plea to the jurisdiction, that it

had considered “the relevant evidence submitted” to decide whether the trial

court had jurisdiction and that it had searched the record for evidence relevant to

the question. 69 And this court has stated in reviewing a plea to the jurisdiction,

we must consider any jurisdictional evidence in the record. 70 Thus, for the

excluded evidence not discussed by the City in its brief, if we concluded that the

68
See, e.g., Nelson v. Vernco Const., Inc., 406 S.W.3d 374, 377 (Tex.
App.—El Paso, 2013 pet. filed).
69
Miranda, 133 S.W.3d at 231, 232; see also Perry v. Del Rio, 66 S.W.3d
239, 260 (Tex. 2001) (stating that the court may review the entire record to
ascertain if any evidence supports the trial court’s subject-matter jurisdiction);
see also Long v. Castle Texas Prod. Ltd. P’ship, No. 11-0161, 2014 WL
1258167, at *6 n.20 (Tex. Mar. 28, 2014) (noting that parties may have excluded
evidence included in the record).
70
Serv. Emp’t Redevelopment v. Fort Worth Indep. Sch. Dist., 163 S.W.3d
142, 147 (Tex. App.—Fort Worth 2005), rev’d on other grounds by 243 S.W.3d
609 (Tex. 2007); Osburn v. Denton Cnty., 124 S.W.3d 289, 292 (Tex. App.—Fort
Worth 2003, pet. denied). But see Lipan Indep. Sch. Dist. v. Bigler, 187 S.W.3d
747, 753 (Tex. App.—Fort Worth 2006, pet. denied) (holding that the appellant
did not show reversible error by the trial court’s admission of evidence in ruling
on a plea to the jurisdiction because it did not explain how the evidence caused
the rendition of an improper denial of its plea to the jurisdiction).

43
evidence was admissible, case law suggests that we would still need to consider

it, even without discussion by the City about its relevance. Other precedent from

this court, however, suggests the opposite. 71

Of course, even for the evidence that the City did reference somewhere in

its brief, we have one more hurdle to jump over before we could hold the

evidence was admissible, include it in our analysis, and then use that evidence

as a basis for reversing the trial court’s judgment: rule of appellate procedure

44.1. 72 The difficulty in this case is that for the evidence that the City says should

have been admitted, the City fails to explain how its exclusion was harmful. 73

Even for excluded evidence that the City does mention somewhere in its brief, it

does not make a specific argument about why its exclusion was harmful. Thus,

in order to decide that we must reverse the trial court’s judgment due to the

exclusion of the evidence, we must make our own argument about why the

exclusion was harmful. 74

71
See Bigler, 187 S.W.3d at 753.
72
Tex. R. App. P. 44.1.
73
See id.; see also Interstate Northborough P’ship v. State, 66 S.W.3d 213,
217 (Tex. 2001) (applying harm analysis after “[a]ssuming without deciding, for
the purposes of this case, that the trial court abused its discretion in excluding
the State’s evidence”); James v. Kloos, 75 S.W.3d 153, 159 (Tex. App.—Fort
Worth 2002, no pet.) (assuming without deciding that the trial court’s allowing
certain testimony was improper and overruling the appellant’s issue about the
admission of the testimony because the appellant failed to make the requisite
showing of harm).
74
See Tex. R. App. P. 44.1.

44
 We can deduce an implied harm argument from the fact that the City

mentions some of the excluded evidence in the fact section of its brief or in its

argument about jurisdiction, giving rise to an inference that the City believes the

evidence is important to its jurisdictional argument (at least important enough to

mention or discuss) and that therefore it was harmed by the evidence’s

exclusion. The dissent implicitly concludes that the exclusion was harmful

because the dissent would hold that the excluded evidence, in combination with

the admitted evidence, shows that the trial court lacked jurisdiction.

We disagree with the dissent about what the evidence shows. We have

held that the evidence, even the evidence that the dissent believes was

admissible and the exclusion of which was harmful, does not negate jurisdiction.

Accordingly, even were we to conduct the admissibility analysis and hold that the

evidence was admissible, we do not agree that the City was harmed by its

exclusion. The City makes no separate argument for why it was harmed by the

exclusion of its evidence other than the implied argument that the evidence

negated jurisdiction, and we decline to craft any such an argument for the City.

Accordingly, because the exclusion of the evidence was not harmful to the City,

the determination of whether the trial court should have admitted it is not

necessary to our holding, and we therefore need not address the City’s challenge

to the exclusion. 75

75
See Tex. R. App. P. 44.1, 47.1; James, 75 S.W.3d at 159.

45
Whether the Halls Consented to the Flooding

Finally under this issue, the City argued that the Halls consented to the

flooding. The City stated that Kim purchased the Property “when it was

abundantly clear that it was almost completely located in the 100-year flood plain

according to the 1982 [Rate Map]” and that she built barns on the Property

without raising them out of the floodplain. The City argued that because she built

improvements on the Property and stored personal property in a flood-prone

area, knowing that it was susceptible to flooding, she consented to the damaging

of her property. It also asserted that the Halls partially consented to flooding or

drainage on the Property by dedicating a portion of the Property—the eastern

side separated from the rest of the parcel by the creek—for a drainage easement

when Kim submitted a plat for the Property in 1986. The City argued that to the

extent that the Halls sought compensation for this area of the Property, it had

already been dedicated to the public’s use for drainage purposes.

The City’s argument is unpersuasive. The Halls are not suing for a taking

of the part of the Property on which the City holds an easement. As for building

in a floodplain, Kim took the Property as it was when she bought it, knowing that

it was susceptible to occasional flooding. But the City points us to no authority

holding that if you accept property with a certain condition, you consent to any

action by another party that exacerbates or worsens that condition. Kim’s

position is not that the natural condition of the Property has resulted in more

46
flooding than she expected. Her position is that she took the Property in one

condition, but the City altered its condition. We reject the City’s argument.

We hold that the trial court did not err by denying the plea to the jurisdiction

on the ground that the Halls did not plead a valid taking claim. We overrule the

City’s first issue.

Whether the Halls Gave Notice

In its second issue, the City argues that the trial court did not have subject-

matter jurisdiction over the Halls’ inverse condemnation claim when the evidence

showed that the Halls did not comply with the notice of claims provision in the

City’s charter. The City argued below and on appeal that the Halls were required

to give formal notice of their claim and that the only claim notice from the Halls

was dated October 7, 2010.

The City attached its charter, which states that “[b]efore the [C]ity shall be

liable to damage claim or suit for . . . damage to property, the person . . . whose

property is damaged . . . shall give the city secretary notice in writing within thirty

(30) days after the occurring of the alleged . . . damage.” Section 311.034 of the

government code states that “[s]tatutory prerequisites to a suit, including the

provision of notice, are jurisdictional requirements in all suits against a

governmental entity.” 76 Based on these two provisions, the City requested

76
Tex. Gov’t Code Ann. § 311.034 (West 2013).

47
dismissal of the Halls’ claim to the extent they sought compensation for property

damage occurring more than thirty days before October 7, 2010.

Compliance with notice provisions in a city’s charter is generally a statutory

prerequisite to a suit against the city and therefore a prerequisite to a trial court’s

jurisdiction over such a suit. 77 Kim undisputedly informed various city officials

over the years of her concerns about the flooding on the Property, including a

2001 letter to the city manager written within thirty days of a flood event, in which

she stated that she wanted to “formally go on record” about her concerns. We

need not consider whether Kim substantially complied with the notice provision or

whether substantial compliance is sufficient to confer jurisdiction because notice

provisions in city charters are not applicable to constitutional takings claims. 78

Accordingly, Kim did not have to give notice of her inverse condemnation claim to

the City in order for the trial court to have jurisdiction over the claim. 79 We

overrule the City’s second issue.

77
Id.; Tex. Loc. Gov’t Code Ann. § 51.077 (West 2008) (providing that a
home-rule municipality “may adopt rules, as it considers advisable, governing the
municipality’s liability for damages caused to a person or property”).
78
City of Waco v. Roberts, 121 Tex. 217, 222, 48 S.W.2d 577, 578–79
(1932), disapproved of on other grounds by City of Houston v. Renault, Inc., 431
S.W.2d 322 (Tex. 1968); see also Mayhew v. Town of Sunnyvale, 774 S.W.2d
284, 297 (Tex. App.—Dallas 1989, writ denied); San Antonio River Auth. v.
Garrett Bros., 528 S.W.2d 266, 274 (Tex. Civ. App.—San Antonio 1975, writ ref’d
n.r.e.); Bates v. City of Houston, 189 S.W.2d 17, 20 (Tex. Civ. App.—Galveston
1945, writ ref’d w.o.m.).
79
We distinguish the facts in this case from a situation in which a claimant
sued for compensation but failed to first use statutory administrative proceedings

48
 The Halls’ Appeal

The Halls assert one issue in their brief, arguing that the trial court erred by

overruling their hearsay objections to some of the City’s evidence. Having

overruled the City’s two issues, however, the Halls’ issue is moot. We overrule

the Halls’ issue.

Conclusion

Having overruled the City’s issues, and having overruled the Halls’ sole

issue, we affirm the trial court’s order.

/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

WALKER, J., concurs without opinion.

GABRIEL, J., filed a dissenting opinion.

DELIVERED: May 1, 2014

by which the claimant could seek just compensation, the use of which “might
have obviated the need for a takings suit.” City of Dallas v. VSC, LLC, 347
S.W.3d 231, 237 (Tex. 2011). When such procedures are available, “then the
property simply ha[s] not, prior to the procedure’s use, been taken without just
compensation.” Id. The City does not argue, and the record does not show, that
the notice provision in the City’s charter sets up a procedure that the Halls could
have used to seek just compensation.

49