Bexar County v. Dominick Colombrito ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00284-CV
BEXAR COUNTY,
Appellant
v.
Dominick COLOMBRITO,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-19443
Honorable Victor Hugo Negron Jr., Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: December 31, 2012
AFFIRMED
This is an interlocutory appeal from the trial court’s denial of Bexar County’s plea to the
jurisdiction. Dominick Colombrito brought an inverse condemnation claim against Bexar
County to recover for damages to his property caused by flooding, which he contends amounted
to a taking. Colombrito also brought a nuisance claim, complaining that Bexar County
unreasonably diverted the natural course of surface waters, which substantially interfered with
the use and enjoyment of his land and caused extensive damages. He also alleged that Bexar
County failed to meet the statutory requirements under section 254.006 of the Texas
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Transportation Code and thereby waived its immunity from suit and for liability in his
negligence and nuisance claims.
On appeal, Bexar County argues that the trial court erred in denying its plea to the
jurisdiction because Colombrito failed to allege facts that support a valid takings claim and thus
did not establish a waiver of Bexar County’s governmental immunity. Bexar County further
asserts that Chapter 254 of the Texas Transportation Code is inapplicable here and does not
waive Bexar County’s immunity. For reasons discussed below, we affirm the trial court’s order.
BACKGROUND
According to Colombrito, he has resided at his home on Gillette Road in San Antonio
since 1990. He lived at this residence during the historic rains of 1998 and during the significant
flooding in Bexar County in 2002. He asserts that during these incidents his property did not
experience any flooding. Bexar County conducted maintenance work on Gillette road on several
occasions after 2002. Colombrito claims that with each resurfacing of the road, especially since
2007, he noticed water from the roadway encroaching onto his land. He alleges he began
complaining to Bexar County about the encroaching water as early as 2007. He insists that
Bexar County did not address his complaints and continued surfacing and resurfacing the road.
Colombrito alleges that his real property flooded in 2010. He sued Bexar County for inverse
condemnation, negligence, gross negligence, and nuisance. 1 In his second amended petition,
Colombrito added an allegation that Bexar County waived immunity pursuant to sections
254.005 and 254.006 of the Texas Transportation Code for failing to meet statutory requirements
relating to drainage on public roads.
1
Colombrito is no longer asserting governmental waiver of immunity under the Texas Tort Claims Act.
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STANDARD OF REVIEW
“Sovereign immunity and its counterpart, governmental immunity, exist to protect the
State and its political subdivisions from lawsuits and liability for money damages.” Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); accord Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). “[Governmental] immunity
from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea
to the jurisdiction.” Miranda, 133 S.W.3d at 225–26; accord Mission Consol., 372 S.W.3d at
636.
“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. We review this question of law de novo. Id.
If the pleader has alleged sufficient jurisdictional facts, the governmental entity defendant
may also challenge the existence of the jurisdictional facts. See id. at 227. We review the
evidence like a traditional motion for summary judgment. See id. at 228; see also Mission
Consol., 372 S.W.3d at 635. We consider the competent summary judgment evidence, such as
deposition transcripts and sworn affidavits. See TEX. R. CIV. P. 166a(d), (f); McConathy v.
McConathy, 869 S.W.2d 341, 342 (Tex. 1994) (per curiam). “[W]e take as true all evidence
favorable to the nonmovant [and] indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor.” Miranda, 133 S.W.3d at 228 (citation omitted); accord Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). However, “pleadings are not competent
[summary judgment] evidence, even if sworn or verified.” Laidlaw Waste Sys. (Dall.), Inc. v.
City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); see Reyes v. Saenz, 269 S.W.3d 675, 678
(Tex. App.—San Antonio 2008, no pet.).
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As the plea to the jurisdiction movant, the governmental entity has the burden to show
that there are no genuine issues of material fact, and it is entitled to judgment as a matter of law.
See Mission Consol., 372 S.W.3d at 635; Miranda, 133 S.W.3d at 227–28; see also TEX. R. CIV.
P. 166a(c). The movant is entitled to summary judgment if it conclusively disproves at least one
essential element of each of the plaintiff’s claims. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801,
803 (Tex. 1999); Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).
However, if the evidence does not conclusively disprove the challenged elements, “then the trial
court cannot grant the plea to the jurisdiction, and the fact issue[s] will be resolved by the
fact[-]finder.” Miranda, 133 S.W.3d at 227–28; accord Univ. of Tex. Health Sci. Ctr. at San
Antonio v. Stevens, 330 S.W.3d 335, 338 (Tex. App.—San Antonio 2010, no pet.).
INVERSE CONDEMNATION BY FLOODING
A. Establishing a Cause of Action
Article I, section 17 of the Texas Constitution, the “takings clause,” provides a waiver of
governmental immunity for claims arising from an unconstitutional taking of property without
adequate compensation. See TEX. CONST. art. I, § 17. This clause mandates that “[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.” Id. When a governmental
entity intentionally takes private property for public use without adequately compensating the
landowner, “the owner may recover damages for inverse condemnation.” Tarrant Reg’l Water
Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).
To assert a cause of action for inverse condemnation, a claimant must plead (1) the
governmental unit intentionally performed an act (2) that resulted in the taking, damaging, or
destruction of the claimant’s property (3) for public use. Gen. Servs. Comm’n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); accord Kirby Lake Dev., Ltd. v. Clear Lake City
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Water Auth., 321 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829
(Tex. 2010).
Colombrito’s pleadings allege sufficient jurisdictional facts to affirmatively demonstrate
jurisdiction. See Miranda, 133 S.W.3d at 226. In its plea to the jurisdiction, Bexar County
challenged the existence of jurisdictional facts. See id. at 227. As the movant, Bexar County has
the burden to show there are no genuine issues of material fact, and that it is entitled to judgment
as a matter of law. See TEX. R. CIV. P. 166a(c); Mission Consol., 372 S.W.3d at 635; Miranda,
133 S.W.3d at 227–28.
B. Intent
Bexar County challenges the intent element of Colombrito’s inverse condemnation claim
by contending it lacked knowledge that its actions in maintaining the road would cause harm to
Colombrito’s property or were substantially certain to do so.
The intent element of an inverse condemnation claim is satisfied by proof that the
governmental body “(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.” See City of Dall. v. Jennings, 142 S.W.3d 310, 314 (Tex.
2004). To give rise to liability for an intentional taking, it is not enough that the act itself was
intentional, but it is not necessarily required that the governmental entity intended to cause the
damage. Id. at 313–14.
Bexar County points to the single page of the deposition testimony of County public
works employee, Tony Vasquez, it attached to its plea to the jurisdiction as sufficient evidence to
establish it lacked the requisite intent for an inverse condemnation claim. Vasquez testified that
there was no indication the road would flood based on the minor maintenance and, that in his
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opinion, there was no way to expect the road would cause Colombrito’s property to flood. He
also testified that he had not received complaints about flooding from Colombrito’s neighbors.
The excerpt, however, does not explain who Tony Vasquez is or how he would have knowledge
of the road and its propensity for flooding.
We conclude that this one page deposition excerpt—the only evidence Bexar County
included in its plea to the jurisdiction—fails to conclusively disprove the element of intent. The
brief dialogue contained therein fails to establish, inter alia, what Vasquez’s position with Bexar
County entailed, whether he had a responsibility to receive complaints of flooding or otherwise
be aware of such flooding, or whether he had some specialized engineering or hydrological
knowledge from which he could accurately predict the presence or absence of flooding. Because
the record before us lacks this critical information, we cannot say that Bexar County has
presented evidence conclusively disproving, as a matter of law, this element of Colombrito’s
inverse condemnation claim. See Elliott-Williams Co., 9 S.W.3d at 803.
C. Taking
Bexar County argues that Colombrito’s complaint cannot constitute a compensable taking
because a one-time flooding of a property is not a taking.
“A ‘taking’ by flooding is a specific type of taking.” Howard v. City of Kerrville, 75
S.W.3d 112, 117 (Tex. App.—San Antonio 2002, pet. denied); see Gragg, 151 S.W.3d at 554.
Establishing a taking by flooding generally requires more than a single flood event. Gragg, 151
S.W.3d at 555; Howard, 75 S.W.3d at 117.
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. . . . The
recurrence requirement assures that the government is not held liable for taking
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property when a project’s adverse impacts, and by implication its benefit to the
public, are too temporal or speculative to warrant compensation.
Gragg, 151 S.W.3d at 555.
In his second amended petition, Colombrito alleged that Bexar County’s actions in
maintaining the road caused water to encroach on his property numerous times and ultimately
caused the flooding of his home in June 2010. Bexar County points only to the assertion in
Colombrito’s petition that “Mr. Colombrito did not experience flooding at his house until June of
2010,” and overlooks Colombrito’s allegations of recurrent flooding on his property. Colombrito
alleged he began noticing water from the roadway encroaching onto his property “[w]ith each
resurfacing of the road, especially since 2007.” Although Colombrito’s house was not flooded
until June 2010, his pleadings assert that his property experienced encroaching water as early as
2007. Thus, Colombrito has alleged sufficient facts that, if true, establish recurrent flooding of
his property and flood damage to his home. Bexar County presented no evidence to rebut
Colombrito’s assertions of the repeated flooding of his property. Therefore, Bexar County has
failed to conclusively disprove the element of taking. See Elliott-Williams Co., 9 S.W.3d at 803.
D. Public Use
Bexar County claims Colombrito has not established that Bexar County’s use of the road
was a “public use.” Specifically, Bexar County contends that its actions in resurfacing the road
were negligent, at most, and the damage caused by the surface maintenance activities was merely
the accidental result of the government’s act. Colombrito argues that if the pleadings give rise to
a fact question regarding intent, he has alleged sufficient jurisdictional facts to show public use.
The public-use requirement distinguishes a negligence claim from an inverse
condemnation claim. See City of San Antonio v. Pollock, 284 S.W.3d 809, 820–21 (Tex. 2009);
Jennings, 142 S.W.3d at 314. “[A] compensable taking occurs ‘only if property is damaged or
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appropriated for or applied to public use.’” Pollock, 284 S.W.3d at 820 (quoting Gragg, 151
S.W.3d at 554–55). This is because “[a]n accidental destruction of property does not benefit the
public.” Id. “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 ‘taken or damaged for public use.’”
Jennings, 142 S.W.3d at 313 (quoting Tex. Highway Dep’t v. Weber, 147 Tex. 628, 631, 219
S.W.2d 70, 71 (1949)). “Accidental” is defined as “[n]ot having occurred as a result of anyone’s
purposeful act.” BLACK’S LAW DICTIONARY 16 (8th ed. 2004).
Colombrito’s pleadings allege the roadway was resurfaced for the benefit of the public.
Moreover, as discussed above, Bexar County failed to conclusively disprove the element of
intent. If Bexar County knew its actions in maintaining the road would cause identifiable harm
or that flooding to Colombrito’s property was substantially certain to result, the damage would
be the result of Bexar County’s purposeful act and would therefore not be accidental. See id.;
Jennings, 142 S.W.3d at 314. Because a fact issue exists with regard to Bexar County’s intent in
acting to maintain the road, there necessarily exists a fact issue as to whether the damage was
merely the accidental result of Bexar County’s act or was damaged for a public use. See
Jennings, 142 S.W.3d at 314; Pollock, 284 S.W.3d at 820–21.
E. Conclusion
Having reviewed the relevant evidence de novo, we conclude Bexar County failed to
conclusively disprove at least one element of Colombrito’s inverse condemnation claim. See
Elliott-Williams Co., 9 S.W.3d at 803; Doe, 907 S.W.2d at 476–77.
NUISANCE
Colombrito also asserted a nuisance claim against Bexar County for allegedly
unreasonably diverting the natural course of surface waters, which substantially interfered with
Colombrito’s use and enjoyment of his land and caused extensive damages. Bexar County
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contends its governmental immunity has not been waived, therefore, as a matter of law, it cannot
be liable for nuisance.
“A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of
land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.”
Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). “A [county] may be
held liable for a nuisance that rises to the level of a constitutional taking.” Jennings, 142 S.W.3d
at 316. Because we have already concluded that fact issues remain as to Colombrito’s inverse
condemnation claim, in this case there necessarily exists a fact issue as to his nuisance claim. Cf.
id. (concluding that the city was immune from nuisance a claim because it lacked the requisite
intent to be held liable for inverse condemnation).
TEXAS TRANSPORTATION CODE CHAPTER 254
In his pleadings, Colombrito alleged that section 254.006 of the Texas Transportation
Code waived Bexar County’s immunity to liability for nuisance. As stated in Colombrito’s brief,
his arguments with regard to Chapter 254 of the Transportation Code “directly relate[] to
Colombrito’s inverse takings claim as well as his nuisance claim.” Because we have heretofore
concluded that the trial court properly denied Bexar County’s plea to the jurisdiction on the
ground that Bexar County failed to conclusively disprove an essential element of Colombrito’s
nuisance and inverse condemnation claims, we need not address the applicability of the
Transportation Code. See TEX. R. APP. P. 47.1; Combs v. Entm’t Publ’ns, Inc., 292 S.W.3d 712,
723 n.7 (Tex. App.—Austin 2009, no pet.).
CONCLUSION
Bexar County failed to meet its burden to conclusively disprove at least one essential
element of Colombrito’s inverse condemnation and nuisance claims. See Elliott-Williams Co., 9
S.W.3d at 803; Doe, 907 S.W.2d at 476–77. Therefore, although Colombrito asserts that the
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Transportation Code may provide an additional basis for a waiver of immunity, we do not
address its applicability. See TEX. R. APP. P. 47.1. Accordingly, we affirm the trial court’s
denial of Bexar County’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 227–28; Stevens,
330 S.W.3d at 338.
Rebecca Simmons, Justice
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