City of Robinson, a Municipal Corporation v. Alton Jay Leuschner and Nina June Leuschner ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00278-CV
CITY OF ROBINSON,
A MUNICIPAL CORPORATION,
Appellant
v.
ALTON JAY LEUSCHNER AND
NINA JUNE LEUSCHNER,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2018-1063-4
DISSENTING OPINION
The residents of Robinson benefit from a municipal sewage system. Alton and Nina
Leuschner contend they are being forced to endure a noxious odor caused by that system on
their property and within their home to the extent that it has permanently damaged the value
thereof for which they are entitled to recover. The question is whether the City of Robinson is
going to be required to pay for the damages the City’s operation of its sewer system has taken
from Alton and Nina. The Texas Constitution says that the City is not immune from suit for
causing damage to Alton and Nina for a government service that benefits the City’s residents.
But this proceeding is not yet about the merits of the claims. It is about whether Alton
and Nina are even going to have an opportunity to prove their claim in a Texas courtroom.
The trial court determined they were entitled to pursue that claim. Established precedent from
this Court also holds that Alton and Nina should have their day in court and not be dismissed
based on governmental immunity. In 1993 this Court stated:
Because fact questions exist about what caused the backup, whether the City
intentionally or negligently failed to correct the cause of the backup, whether the
condition rose to the level of a nuisance, whether the City intended to take acts
which resulted in the taking, damaging, or destruction of any interest in the
property, the City has failed to meet its summary-judgment burden and was not
entitled to summary judgment on this cause of action.
Bible Baptist Church v. Cleburne, 848 S.W.2d 826, 830 (Tex. App.—Waco 1993, writ denied).
So well-established has this line of authority been that in 2004, this Court applied it to
another proceeding in a memorandum opinion in which it was summarily stated:
INVERSE CONDEMNATION AND NUISANCE CLAIMS
What actually caused the backup in the sewage line, whether the City knew of
the problems, whether it intentionally or negligently failed to correct the cause
of the backup, and whether the condition rose to the level of a nuisance or an
unconstitutional taking are not known. Based on the current state of the law in
this district, we hold that the trial court erred in granting the City's plea to the
jurisdiction regarding the inverse condemnation and nuisance claims. See Cozby
v. City of Waco, 110 S.W.3d 32 (Tex. App.—Waco 2002, no pet.); Bible Baptist
Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied).
We recognize that an inverse condemnation case on these issues, which could
modify our analysis, is currently pending review by the Texas Supreme Court,
92 S.W.3d 640 (Tex. App.—Beaumont 2002, pet. granted). But on the precedent
currently binding on this court, Padgett and Dunn's first issue is sustained, in
part.
Padgett v. City of Madisonville, 2004 Tex. App. LEXIS 1442, *2-3 (Tex. App.—Waco Feb. 11, 2004,
no pet.).
Bible Baptist has been cited at least 31 times with no adverse history.
No appellate court has cited Padgett, which is as it should be with a true memorandum
opinion. The petition for review in the Sabine River Authority of Texas v. Hughes opinion cited
City of Robinson v. Leuschner Page 2
in Padgett was ultimately denied. Moreover, the Texas Supreme Court cases of Abilene v.
Downs 1 and Dallas v. Jennings,2 when compared to the procedural posture, facts, and holding
1 The Court’s opinion is particularly instructive on claims related to a nuisance created by the operation of a
sewage plant, including noxious odors. There, the Court stated:
The resolution of the foregoing rests in the fact that the invading agents resulting from the
operations of the sewage disposal plant do not affect the physical condition or cause damage to
the land itself - as was the case of flowing water in Fromme - but are the cause of, and result in,
personal discomfort and annoyance to those who reside on the land. The damages consequent
therefrom are recoverable as a taking or damaging of private property for a public use under
Article I. Section 17, of the Constitution only if, and after, the operations of the sewer farm
constitute a nuisance.
The basic rule was early stated by this Court in Baugh v. Texas & N.O.R. Co., 80 Tex. 56, 15 S.W.
587:
"When a nuisance is created by the construction of works in their nature
permanent, and which, as sometimes occurs in case of works for a public use,
are not subject to be abated, the rule is that all damages resulting therefrom to
property may be recovered in one action, and the proper measure of damages is
the depreciation in the value of the property. Resenthal v. Railway Co., (Tex.) ante,
268 (decided at the present term;) Railway Co. v. Hall, 78 Tex. 169, 14 S.W. Rep.
259."
It was further held by this Court in Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119:
"To justify a recovery of damages for personal inconvenience or reduction in the
value of their property, the plaintiffs must prove such annoyance, discomfort, or
other interruption of the use of their home as would constitute a nuisance. The
standard by which the issue of nuisance must be determined by the jury is that
the conditions caused by the operation of the plant were such as would disturb
and annoy persons of ordinary sensibilities, and of ordinary tastes and habits. In
other words, the acts complained of must constitute a nuisance. W.P.O. Co. v.
Cook, 6 Tex. Civ. App. 573, 26 S.W. 96; League v. Journeay, 25 Tex. 172, Dittman v.
Repp. 50 Md. 516, 33 Am. Rep. 325; 21 Am. & Eng. Ency. 687.
"If there be no nuisance, there can be no recovery of damages for such annoyance
as may exist, nor for diminution in the value of the property."
City of Abilene v. Downs, 367 S.W.2d 153, 158 (Tex. 1963).
2 As the City of Robinson acknowledges in its brief, pg 15,
to satisfy the intentional element of a takings claim, the plaintiff must present evidence that the
governmental entity at the time of the complained of conduct either “(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.” City of Dallas v.
Jennings, 142 S.W.3d 310, 314-15 (Tex. 2004).
City of Robinson v. Leuschner Page 3
of the trial court, support what the trial court did here, which was to allow the suit to proceed
to a determination of the merits of whether the City has taken or damaged private property for
the public’s benefit within the meaning of Article I, Section 17 of the Texas Constitution.
At the very least, it is clear that Alton and Nina could easily amend their petition to
bring themselves within the jurisdiction of the trial court as was held in the precedential cases
in this district. I have not found anything that is inconsistent with the continued vitality of
these cases as binding precedent upon this Court.
If Alvin and Nina are able to establish the noxious odors caused by the intentional
operation 3 of the lift station and related sewage line rise to the level of a nuisance that has
damaged the use and enjoyment of their home, they have been deprived of their property
within the meaning of Art 1 Section 17 of the Texas Constitution. Because the Court holds that
they will be permanently deprived of their property without even the opportunity to establish
their unconstitutional takings claim, I respectfully, but vigorously, dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed October 6, 2021
Publish
In this case, as you would expect from the regular ongoing operation of a sewer system, the City’s
intentional conduct is the daily operation of that system.
3This is not like the situation in Schneider v. Cuero, 749 S.W.2d 614 (Tex. App.—Corpus Christi 1988, writ denied),
wherein the City was negligent in its operation of the landfill. Here, the City is intentionally operating the lift
station and sewage line for the continued use/benefit of its citizens.
City of Robinson v. Leuschner Page 4