City of Robinson, Texas v. Gabriel Rodriguez and Irene Rodriguez ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00075-CV
CITY OF ROBINSON, TEXAS,
Appellant
v.
GABRIEL RODRIGUEZ AND IRENE RODRIGUEZ,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2021-117-4
MEMORANDUM OPINION
In one issue, appellant, the City of Robinson, Texas (the “City”), argues that the
trial court erred when it denied the City’s plea to the jurisdiction in favor of appellees,
Gabriel and Irene Rodriguez. Specifically, the City contends that the Rodriguezes failed
to plead jurisdictional facts sufficient to bring their asserted cause of action and claim for
injunctive relief within the “takings clause,” article I, section 17 of the Texas Constitution.
See TEX. CONST. art. I, § 17. Because we agree with the City, we reverse and render.
Background
In their live pleading, the Rodriguezes asserted the following facts:
Plaintiffs [the Rodriguezes] are the owners of the property located at 1102
North Peggy Drive in Robinson, Texas, which is furnished sewer to their
home by the Defendant [the City]. On or about February 19, 2019, sewage
backed up into Plaintiffs’ property causing extensive damage to Plaintiffs’
property. Plaintiffs reported said event to the City of Robinson. The City
of Robinson purportedly sent a city worker out to check the manhole
upstream and downstream. The City of Robinson also determined that the
Plaintiffs did not have a clean[]out to check[,] so the problem was on the
Plaintiffs[‘] side and not the City of Robinson’s side. As a result of being
told that they had no clean out, Plaintiffs hired a licensed plumber to install
a clean out on the Plaintiff’s [sic] property. Two clean outs were installed.
After the clean outs were installed, sewage again backed up into Plaintiffs’
property. On or about February 21, 2019, the licensed plumber that
Plaintiffs hired reported to the City of Robinson that he had found a stop
up on the City of Robinson side. The City of Robinson again sent a city
worker out to check but again reported that the stoppage was on the
Plaintiffs[‘] side. Once the City of Robinson failed to address the stoppage,
the licensed plumber hired by Plaintiffs cleaned out the stoppage in the
main line and on the City of Robinson’s side. The Plaintiffs have had
sewage back up into their property on more than these two occasions
outlined above throughout the years. Each time the sewage backed up into
their property[,] the Plaintiffs reported said back up to the City of Robinson.
This occurred from the Defendant failing to construct and maintain its
sewer system so that an above average rainfall causes the sewage to back
into Plaintiffs’ house. This has been known to the City of Robinson prior to
this occurrence, and Defendant has advised that it has been working to fix
the sewer situation but has failed to do so. Plaintiffs have relied upon
Defendant’s representations, and the Plaintiffs have learned that the
representations were untrue due to the occurrence in February of 2019[,]
when the sewage backed into their home.
The Rodriguezes further alleged that:
The action of the Defendant in the construction and maintaining of their
sewer system as set out above constitutes intentional taking of Plaintiffs’
property in violation of Section 17 of Article I of the Constitution of the State
City of Robinson, Tex. v. Rodriguez, et al. Page 2
of Texas in that Defendant had and has actual knowledge that the sewage
overflow in February of 2019[,] would occur and will continue in the future
unless the situation is corrected. Defendant had actual knowledge at all
times during the construction of the sewer system and maintenance thereof
that Plaintiffs’ property would be severely damaged unless the situation
was eliminated by the Defendant.
...
Plaintiffs’ property was taken for public use in violation of Section 17 of
Article I of the Texas Constitution in that the sewer line leading to Plaintiffs’
property was constructed and maintained so as to handle rainwater so that
sewage would not back into Plaintiffs’ house.
The Rodriguezes also pled for injunctive relief and $100,000 in damages.
In response, the City filed an answer generally denying the Rodriguezes’s
allegations, asserted the defense of governmental immunity, and filed a plea to the
jurisdiction. In its plea to the jurisdiction, the City contended that, among other things, a
taking cannot be established by proof of mere negligent conduct by the government; that
the alleged failure to construct and maintain a sewer system cannot support liability
because it is not an affirmative, specific act; and that the Rodriguezes did not allege an
action by the City that caused a known and substantially certain harm to the
Rodriguezes’s property. The Rodriguezes filed a response to the City’s plea to the
jurisdiction.
After a hearing, the trial court denied the City’s plea to the jurisdiction. This
appeal followed.
City of Robinson, Tex. v. Rodriguez, et al. Page 3
Issue One
In its sole issue on appeal, the City contends that the trial court erred when it
denied the City’s plea to the jurisdiction. Specifically, the City argues that the
Rodriguezes failed to plead jurisdictional facts sufficient to establish their takings claim.
STANDARD OF REVIEW
A plea to the jurisdiction based on sovereign immunity challenges a trial court’s
subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). “A plea
questioning the trial court’s jurisdiction raises a question of law that we review de novo.”
Id. The plaintiff must allege facts that affirmatively establish the trial court’s subject-
matter jurisdiction. Id. In determining whether the plaintiff has satisfied this burden, we
construe the pleadings liberally in the plaintiff’s favor and deny the plea if facts
affirmatively demonstrating jurisdiction have been alleged. Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).
A plea to the jurisdiction may challenge the existence of jurisdictional facts.
Miranda, 133 S.W.3d at 227. In some cases, the challenged jurisdictional facts are distinct
from the merits of the case, but in other cases, the challenged jurisdictional facts are
inextricably intertwined with the merits of the case. Id. “[I]n a case in which the
jurisdictional challenge implicates the merits of the plaintiffs’ cause of action and the plea
to the jurisdiction includes evidence, the trial court reviews the relevant evidence to
determine if a fact issue exists.” Id. Our standard of review on appeal “generally mirrors
City of Robinson, Tex. v. Rodriguez, et al. Page 4
that of a summary judgment,” meaning we will take as true all evidence favorable to the
non-movant and indulge reasonable inferences and resolve doubts in the non-movant’s
favor. Id. at 228.
If “the pleadings do not contain sufficient facts to affirmatively demonstrate the
trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in
jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded
the opportunity to amend.” Id. at 226-27. A court may grant a plea to the jurisdiction
without affording the plaintiff an opportunity to amend only if “the pleadings
affirmatively negate the existence of jurisdiction.” Id. at 227.
APPLICABLE LAW
Sovereign immunity deprives a trial court of jurisdiction for lawsuits in which the
State or certain governmental units have been sued unless the State consents to suit.
Miranda, 133 S.W.3d at 224. Political subdivisions of the State, including cities, are
entitled to immunity—referred to as “governmental immunity—unless it has been
waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
Governmental immunity is waived for valid takings claims. El Dorado Land Co. v.
City of McKinney, 395 S.W.3d 798, 801 (Tex. 2013); City of Dallas v. VRC LLC, 260 S.W.3d
60, 64 (Tex. App.—Dallas 2008, no pet.). A takings claim is rooted in the takings clause
of the Texas Constitution, which provides that “[n]o person’s property shall be taken,
City of Robinson, Tex. v. Rodriguez, et al. Page 5
damaged or destroyed for or applied to public use without adequate compensation being
made, unless by the consent of such person . . . .” TEX. CONST. I, § 17. If a plaintiff fails to
allege a valid takings claim, governmental immunity applies and a plea to the jurisdiction
should be granted. Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no
pet.). Whether particular facts constitute a taking is a question of law. Little-Tex Insulation
Co., 39 S.W.3d at 598 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998)).
To plead a takings claim, a claimant must show that a governmental actor
intentionally took or damaged property for public use. Holland, 221 S.W.3d at 643; Little-
Tex Insulation Co., 39 S.W.3d at 598. The intent element is closely tied to the public-use
element. See City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004) (discussing the
link between the intent and public-use elements). A governmental entity acts
intentionally if it (1) knows that the specific act is causing identifiable harm or (2) knows
that the specific harm is substantially certain to result from authorized government
action—that is, that the harm is necessarily incident to, or necessarily a consequential
result of the government’s actions. Jennings, 142 S.W.3d at 314. Evidence of a
governmental entity’s failure to avoid preventable damage may be evidence of
negligence, but it is not necessarily evidence of the entity’s intent to damage the plaintiff’s
property. See City of San Antonio v. Pollack, 284 S.W.3d 809, 821 (Tex. 2009); Jennings, 142
S.W.3d at 314; see also Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex.
2016).
City of Robinson, Tex. v. Rodriguez, et al. Page 6
ANALYSIS
In the instant case, the Rodriguezes specifically alleged that the basis of their
takings claim is the City’s construction and maintenance of its sewer system and
referenced two flooding incidents in support of their contention. However, the
Rodriguezes provide no evidence of an intentional act on the part of the City designed to
confer a public benefit that the City knew would cause damage to the Rodriguezes’s
property. See Kerr, 499 S.W.3d at 800 (“A government cannot be liable for a taking if it
committed no intentional acts. We have not recognized a takings claim for
nonfeasance.”); Jennings, 142 S.W.3d at 314-15 (holding that there was no evidence the
City knew its actions would cause flooding or that its actions were substantially certain
to lead to such damage where plaintiffs alleged that when the City dislodged material
blocking a sewer main, their home was flooded with raw sewage); City of Van Alstyne v.
Young, 146 S.W.3d 846, 850 (Tex. App.—Dallas 2004, no pet.) (holding that a City’s
knowledge of alleged problems with sewer pumps near the plaintiffs’ home is not the
same as knowledge that their decision not to replace the pumps would result in a flood
of the plaintiffs’ home).
And despite allegations of notice to the City, the Rodriguezes’s claims about the
construction and maintenance of the City’s sewer system sound in negligence and do not
City of Robinson, Tex. v. Rodriguez, et al. Page 7
identify a specific, intentional, governmental act.1 See Kerr, 499 S.W.3d at 799 (“We have
made clear that a taking cannot be established by proof of mere negligent conduct by the
government.”); Pollack, 284 S.W.3d at 821 (“The governmental entity’s awareness of the
mere possibility of damage is no evidence of intent.”); see also City of Arlington v. State
Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (“[T]he mere intentional operation of a sewer
system is insufficient to support liability [for a takings claim].”); Jennings, 142 S.W.3d at
315 (rejecting an argument where homeowners attempted to show the City’s intent to
damage their property by sewage backup from the fact that the City knew that
unclogging a sewer can sometimes cause it to back up); Young, 146 S.W.3d at 850.
Furthermore, in their live pleading, the Rodriguezes specifically referenced two
sewer backups into their home. As alleged by the Rodriguezes, the City of Robinson
determined that the first sewer backup was caused by sewer-line blockages on the
Rodriguezes’s side and required the Rodriguezes to install two clean outs on their
property. Thus, based on the Rodriguezes’s live pleading, the first sewer backup was not
due to an intentional act by the City. The second sewer backup alleged by the
Rodriguezes involved a stoppage where the parties disputed responsibility. Even taking
as true the Rodriguezes’s allegation that the second sewer backup was the City’s fault,
the Rodriguezes failed to allege any affirmative, specific conduct that occurred
1Moreover, the Texas Supreme Court has noted that when damage is the accidental result of an
alleged governmental act, there is no public benefit, and thus, the property cannot be said to be “taken or
damaged for public use.” City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex. 2004).
City of Robinson, Tex. v. Rodriguez, et al. Page 8
subsequent to the second sewer backup, other than general allegations that: “The
Plaintiffs have had sewage back up into their property on more than these two occasions
outlined above throughout the years.” See Young, 146 S.W.3d at 850 (citing Tarrant Reg’l
Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004)) (noting that a single occurrence of
sewer backup does not generally give rise to a taking). This is not enough to show the
requisite intent for a takings claim. See Kerr, 499 S.W.3d at 799 (“[T]he requisite intent is
present when a governmental entity knows that a specific act is causing identifiable harm
or knows that the harm is substantially certain to result.” (quoting Gragg, 151 S.W.3d at
555)). This is because governments “cannot be expected to insure against every
misfortune occurring within their geographical boundaries, on the theory that they could
have done more. No government could afford such obligations.” Id. at 804.
Therefore, even construing the Rodriguezes’s pleading liberally in their favor,
their petition not only fails to plead facts establishing jurisdiction but also affirmatively
demonstrates that their takings claim is barred by governmental immunity. See Miranda,
133 S.W.3d at 227 (holding if pleadings affirmatively negate the existence of jurisdiction,
a plea may be granted without allowing plaintiff the opportunity to amend); Bell, 146
S.W.3d at 825 (holding that the trial court properly granted the City of Dallas’s motion to
dismiss when the plaintiffs failed to plead a valid takings claim). And because the
Rodriguezes’s live pleading affirmatively demonstrates incurable defects in jurisdiction,
City of Robinson, Tex. v. Rodriguez, et al. Page 9
we cannot say that they are entitled to an opportunity to amend. See Miranda, 133 S.W.3d
at 227; see also County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
Next, we consider the Rodriguezes’s request for injunctive relief “in the form of a
permanent injunction based on the continuing nature of the nuisance.” “[N]uisance
liability arises only when governmental immunity is clearly and unambiguously
waived.” Jennings, 142 S.W.3d at 316. The Rodriguezes’s request for injunctive relief to
remedy the alleged sewer overflow is premised on a takings claim, which we have
already rejected.
Therefore, based on the foregoing, we conclude that the trial court erred when it
denied the City’s plea to the jurisdiction. We sustain the City’s sole issue on appeal.
Conclusion
We reverse the trial court’s judgment and render judgment granting the City’s plea
to the jurisdiction and dismissing the Rodriguezes’s claims.
MATT JOHNSON
Justice
City of Robinson, Tex. v. Rodriguez, et al. Page 10
Before Chief Justice Gray,
Justice Johnson,
and Justice Rose2
(Chief Justice Gray dissenting)
Reversed and rendered
Opinion delivered and filed October 6, 2021
[CV06]
2The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment
of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
City of Robinson, Tex. v. Rodriguez, et al. Page 11