Prestonwood Estates West Homeowners Association, Bruce W. Hammond, Catherine D. Hammond, Rachel Aubrey Brown, Lowell T. James, L. Frank Devlin, Marilyn Devlin, Jim Anagnostis, Dawn Anagnostis, Jeffrey Daniel Morris, Angela Odell Morris, Donald Rorschach, Jill Rorschach, Jon. P. Jackson, Chan Kang, Sung Kang, Alberto E. Vazquez, Martha Whelan, Mary Ann Levine, Gary E. Davidson, Martha Davidson, John Michael O'Shea, Robert Blake, Michelle Lindsay, Stephen Dedwylder, Simone Ikonomides v. City of Arlington, Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00362-CV
___________________________
PRESTONWOOD ESTATES WEST HOMEOWNERS ASSOCIATION, BRUCE W.
HAMMOND, CATHERINE D. HAMMOND, RACHEL AUBREY BROWN,
LOWELL T. JAMES, L. FRANK DEVLIN, MARILYN DEVLIN, JIM
ANAGNOSTIS, DAWN ANAGNOSTIS, JEFFREY DANIEL MORRIS, ANGELA
ODELL MORRIS, DONALD RORSCHACH, JILL RORSCHACH, JON. P.
JACKSON, CHAN KANG, SUNG KANG, ALBERTO E. VAZQUEZ, MARTHA
WHELAN, MARY ANN LEVINE, GARY E. DAVIDSON, MARTHA
DAVIDSON, JOHN MICHAEL O’SHEA, ROBERT BLAKE, MICHELLE
LINDSAY, STEPHEN DEDWYLDER, SIMONE IKONOMIDES, JAMES L.
EDDINS, DOLLYE D. EDDINS, ARTHUR HALLFORD, SHEILA HALLFORD,
PAUL D. MORRIS, JR., BRENDA MORRIS, KATHERINE ELLIS, WAYNE KAY
GUESSFORD, DECEASED AND/OR THE ESTATE OF WAYNE KAY
GUESSFIRD, JOHNNY L. STONE, CHRISTY R. STONE, JAMES C. HARRIS,
JENNA B. TYLER, GARY L. UPTON, MARTHA J. UPTON, JAMES D. BRACE,
DAWN BRACE, SANDEEP GUTTIKONDA, COURTNEY J. GUTTIKONDA,
PATRICIA WEST, STEPHEN PETERSON, HEATHER PETERSON, BRETT
WARMUS, AND ERIN WARMUS, Appellants
V.
CITY OF ARLINGTON, TEXAS, Appellee
On Appeal from the 153rd District Court
Tarrant County, Texas
Trial Court No. 153-319238-20
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
2
MEMORANDUM OPINION
This case arises from Appellee City of Arlington’s intentional breach of the
Prestonwood Lake Dam and the alleged resulting damage to residential lots along
Prestonwood Lake, which is upstream from the dam. Appellants Prestonwood
Estates West Homeowners Association and homeowners belonging to the HOA1
(collectively, the Homeowners) sued the City for inverse condemnation and under the
Texas Tort Claims Act (TTCA). They also sought attorney’s fees. The City filed a plea
to the jurisdiction asserting that governmental immunity protected it from the
Homeowners’ claims and that the Homeowners had failed to plead sufficient facts
affirmatively establishing a waiver of that immunity. The trial court agreed and
granted the City’s plea. In a single issue, the Homeowners complain that the trial court
erred by granting the City’s jurisdictional plea because they adequately pleaded their
inverse-condemnation claim. We will reverse and remand.
1
Bruce W. Hammond, Catherine D. Hammond, Rachel Aubrey Brown, Lowell
T. James, L. Frank Devlin, Marilyn Devlin, Jim Anagnostis, Dawn Anagnostis, Jeffrey
Daniel Morris, Angela Odell Morris, Donald Rorschach, Jill Rorschach, Jon. P.
Jackson, Chan Kang, Sung Kang, Alberto E. Vazquez, Martha Whelan, Mary Ann
Levine, Gary E. Davidson, Martha Davidson, John Michael O’Shea, Robert Blake,
Michelle Lindsay, Stephen Dedwylder, Simone Ikonomides, James L. Eddins, Dollye
D. Eddins, Arthur Hallford, Sheila Hallford, Paul D. Morris, Jr., Brenda Morris,
Katherine Ellis, Wayne Kay Guessford, Deceased and/or the Estate of Wayne Kay
Guessford, Johnny L. Stone, Christy R. Stone, James C. Harris, Jenna B. Tyler, Gary
L. Upton, Martha J. Upton, James D. Brace, Dawn Brace, Sandeep Guttikonda,
Courtney J. Guttikonda, Patricia West, Stephen Peterson, Heather Peterson, Brett
Warmus, and Erin Warmus.
3
I. Background
The Homeowners alleged in their first amended petition that the HOA, which
was established in 1977, consists of about 31 homes along Lakehill Court, Stonebrook
Drive, and Lake Country Drive in northwest Arlington. The HOA comprises lots that
abut a creek and Prestonwood Lake, which was created when the Prestonwood Lake
Dam was installed between 1979 and 1982. The HOA is responsible for maintaining
the dam.
The Homeowners further alleged that around the time the City conducted a
nearby public-improvement project in the early 1990s, homeowners along the creek
began noticing significant silt deposits in the waterway. Since that project, the silting
of the lake and creek continued to the point that neither could be used for canoeing
or fishing. By 2018, the unabated silting had caused the lake’s depth to decrease from
its historic maximum of over twenty feet to only three to five feet.
In the fall of 2018, the dam was not in “ideal condition,” and Tarrant County
was experiencing severe weather and flooding. In late October 2018, the City hired an
engineering firm to conduct a breach analysis on the dam to determine the likelihood
of the dam’s failure and to evaluate any downstream impacts in the event of a breach.
The firm’s report2—which was addressed to Audra Valamides, P.E., an engineer with
the City’s Stormwater Management Department, and was provided to her on October
2
The Homeowners attached the report to their petition and incorporated it into
their pleadings. See Tex. R. Civ. P. 59.
4
30, 2018—described the dam’s damaged condition and concluded that “the dam will
likely fail if no remedial actions are taken immediately.”
The report also summarized the firm’s breach-analysis methodology and
results. According to the report, the breach analysis indicated that
[t]he downstream roadway, Green Oaks Boulevard, would not be
overtopped by a breach. Moving downstream, flow would move around
the southwest side of the City of Fort Worth Village Creek Wastewater
Treatment Plant, join Village Creek, and then confluence with the West
Fork of the Trinity River. No habitable structures were identified in the
breach zone. A set of box culverts on the treatment plant site would
likely be able to convey breach flows. Based on these findings, a “low
hazard” classification for the dam according to [Texas Commission on
Environmental Quality] dam safety regulations would be appropriate.
The report went on to summarize additional potential risks of dam failure:
• channel widening that would “likely occur” and “could potentially impact
nearby structures”;
• erosion that would threaten an upstream street (Lamar Boulevard) and culverts;
• a release of sediment that could potentially impact ecological habitats and City
culverts;
• possible additional downstream erosion that could threaten private property,
public infrastructure, and the downstream channel; and
• the Homeowners’ loss of the lake’s “normal pool . . . and associated aesthetic
and recreation benefits.”
Given the dam’s condition and the likely possibility of a dam breach, the report
recommended notifying the Texas Commission on Environmental Quality of the
dam’s condition; alerting City crews to the possible breach and breach flows at Green
Oaks Boulevard; inspecting city culverts at Green Oaks Boulevard to ensure that they
5
were unclogged and able to convey large flows; notifying the Village Creek wastewater
treatment plant’s operators; checking the conveyance capacity of culverts on the
wastewater treatment plant’s property; and notifying emergency responders in “the
general vicinity and downstream area.”
The immediate remedial actions recommended by the report included lowering
the lake level, buttressing the left downstream spillway, placing sandbags or stacked
ready-mix concrete bags to redirect spillway flows, and removing a tree from the
dam’s left abutment. Breaching the dam was not among the report’s suggested
immediate actions. But the report’s long-term remedial actions included determining
whether the dam should be repaired or be removed, “i.e.[,] decommissioning thru a
controlled breach.” The report went on to list factors to be considered regarding each
long-term remedial action.
On November 1, 2018—two days after the City’s mayor received the report—
the mayor declared a state of disaster for the City 3 and implemented the City’s
Emergency Operational Plan4 because
• the severe weather and flooding that had started on September 10, 2018, had
caused and might continue to cause widespread and severe property damage in
Tarrant County;
3
The Homeowners also attached the mayor’s local disaster declaration to their
petition and incorporated it into their pleadings. See id.
4
The Homeowners did not attach the emergency operational plan itself to its
pleadings nor did they discuss it in their pleadings.
6
• the Texas Governor had declared a state of disaster for Tarrant County;
• due to the rain occurring within the City over several weeks and still occurring
the week of November 1, 2018, the imminent possibility existed that City
residents and the City itself would suffer severe injury and property damage due
to the possibility of a dam breach on Prestonwood Lake; and
• the mayor had “determined that extraordinary measures must be taken to
alleviate the potential suffering of people and to protect or rehabilitate
property.”
That same day, City crews used a piece of motor-driven equipment to breach the dam.
The Homeowners pleaded that the dam breach caused substantial erosion
throughout the waterway’s length and that nearly every lot along Prestonwood Lake
suffered substantial erosion, which caused retaining walls to crumble and fall into the
almost-dry creek bed. They further claimed that some of the Homeowners face the
potential of losing the structural integrity of their homes and that “[o]ne lot is mere
feet away from losing its underground pool due to the erosion.” The Homeowners
estimate that the City’s actions caused about $2,000,000 in damages.
Nearly two years after the dam breach, the Homeowners sued the City for
inverse condemnation under Article I, Section 17 of the Texas Constitution, for
property damage under the TTCA, and for attorney’s fees. See Tex. Const. art. I,
§ 17(a); Tex. Civ. Prac. & Rem. Code Ann. § 101.021.
The City filed a plea to the jurisdiction attacking the Homeowners’ pleadings,
arguing that all the Homeowners’ claims should be dismissed for lack of subject-
matter jurisdiction because the Homeowners had not pleaded and could not establish
7
facts to support (1) a valid inverse-condemnation claim that would result in a waiver
of the City’s governmental immunity, (2) an immunity waiver under the TTCA, and
(3) an immunity waiver for their attorney’s-fees claim. The trial court granted the plea
in its entirety.
The Homeowners have appealed, but they do not challenge the trial court’s
dismissal of their TTCA and attorney’s-fees claims. We thus address only whether the
trial court erred by granting the City’s jurisdictional plea as to the Homeowners’
inverse-condemnation claim.
II. Standard of Review
Unless the state consents to suit, sovereign immunity deprives a trial court of
subject-matter jurisdiction over lawsuits against the state or certain governmental
units. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004) (op.
on reh’g). Cities are political subdivisions of the state and, absent waiver, are similarly
entitled to governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371,
374 (Tex. 2006) (op. on reh’g).
A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack
of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A
jurisdictional plea’s purpose is to defeat a cause of action without regard to the
asserted claims’ merits. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether the
trial court has subject-matter jurisdiction is a legal question that we review de novo.
Miranda, 133 S.W.3d at 226.
8
A jurisdictional plea may challenge the pleadings, the existence of jurisdictional
facts, or both. Alamo Heights ISD v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When, as
here, the plea challenges the pleadings, we determine if the plaintiffs have alleged facts
affirmatively demonstrating subject-matter jurisdiction. See Miranda, 133 S.W.3d at
226. We look to the plaintiff’s pleadings, construing them liberally in the plaintiffs’
favor and looking to the pleaders’ intent. Id. If the pleadings lack sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
demonstrate incurable jurisdictional defects, the issue is one of pleading sufficiency,
and the plaintiffs should be given the opportunity to amend. Id. at 226–27. But if the
pleadings affirmatively negate the existence of jurisdiction, then a jurisdictional plea
may be granted without allowing the plaintiffs the opportunity to amend. Id. at 227.
III. Inverse Condemnation
Inverse-condemnation claims,5 also referred to as “takings” claims, are rooted
in the takings clause of the Texas Constitution—Article I, Section 17—which
provides, in pertinent part, 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.” Tex. Const. art. I, § 17(a); see Tarrant Reg’l
5
The action is referred to as inverse because the property owner initiates a
action to recover compensation for a taking that has already occurred instead of the
government’s initiating a formal statutory proceeding to determine appropriate
compensation for a prospective taking. See City of Dallas v. Stewart, 361 S.W.3d 562,
567 (Tex. 2012) (op. on reh’g).
9
Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004) (“A physical taking may occur
when the government physically appropriates or invades private property, or
unreasonably interferes with the landowner’s right to use and enjoy it. When the
government takes private property without first paying for it, the owner may recover
damages for inverse condemnation.” (citation omitted)); City of Dallas v. Jennings,
142 S.W.3d 310, 313 n.2 (Tex. 2004) (noting that “taking,” “damaging,” and
“destruction” of one’s property are three distinct claims arising under Article I,
Section 17, but the term “taking” has become used as shorthand to refer to all three
types of claims). This constitutional provision waives governmental immunity for
takings claims. See El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798,
801 (Tex. 2013); see also Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The
Constitution itself is the authorization for compensation for the destruction of
property and is a waiver of governmental immunity for the taking, damaging or
destruction of property for public use.”).
Even so, a city retains its immunity when a plaintiff fails to allege a valid takings
claim. See, e.g., City of Justin v. Wesolak, No. 02-15-00379-CV, 2016 WL 2989568, at
*4 (Tex. App.—Fort Worth May 19, 2016, no pet.) (mem. op.). To plead a valid
takings claim, a plaintiff must plead that (1) the governmental entity intentionally
performed certain acts in the exercise of its lawful authority; (2) that such acts resulted
in taking, damaging, or destroying the plaintiff’s property; and (3) that the taking was
10
for public use. See, e.g., id. (citing Gen. Servs. Comm’n v. Little-Tex Insulation Co.,
39 S.W.3d 591, 598 (Tex. 2001)).
IV. Analysis
Here, the City argued in its jurisdictional plea that the Homeowners had failed
to plead and cannot establish facts to support a viable takings claim because (1) the
City’s breaching the dam was an exercise of its police and emergency powers under
the “doctrine of necessity” and was thus not a taking for public use under the City’s
eminent-domain authority; (2) the City lacked the requisite intent; and (3) the City’s
actions did not proximately cause the Homeowners’ damages. In their sole issue, the
Homeowners argue that the trial court erred by granting the City’s jurisdictional plea
because they alleged sufficient facts to plead a viable takings claim. We address each
of the challenged elements in turn.
A. The Doctrine of Necessity
According to the City, the necessity doctrine insulates the City from takings
liability here. The Homeowners counter that there is no emergency exception to the
takings clause and that the trial court thus erred to the extent that it granted the City’s
jurisdictional plea based on the mayor’s exercising his emergency powers and his
issuing the emergency order. The City disagrees and asserts that the threshold
question here is whether the City’s performing a controlled breach of the dam in
response to the mayor’s emergency declaration was a use of the City’s eminent-
domain power—which is compensable under the Texas Constitution—or “an
11
exercise of a narrow set of governmental powers sometimes referred to as the
‘doctrine of necessity,’ which allows the government to damage or destroy property in
extraordinary circumstances without paying compensation.” The City additionally
argues that the mayor’s ordering the controlled breach was an exercise of his
emergency police powers authorized by the Texas Disaster Act of 1975, not the City’s
use of its eminent-domain power. See generally Tex. Gov’t Code Ann. §§ 418.001, .002,
.101–.1102. Thus, the City contends, its “actions were undertaken under the doctrine
of necessity in order to prevent the damage likely to occur due to the imminent
uncontrolled rupturing of the dam,” and therefore, “the takings clause is simply not
applicable in this situation.”
The City explains that “[t]he ‘doctrine of necessity’ is a defense that can be raised
in response to a takings claim for property damage from events related to natural
disasters like wildfires and floods, and for police tactics that destroy or damage
property to apprehend suspected criminals.” [Emphasis added.] See generally Shelley
Ross Saxer, Paying for Disasters, 68 U. Kan. L. Rev. 413, 451–54 (2020) (discussing the
doctrine of necessity as a defense to a takings claim). The Texas Supreme Court has
also indicated that the necessity doctrine is defensive in nature. In Steele v. City of
Houston, the Houston Police Department—while attempting to apprehend escaped
convicts who had taken refuge in a house—“discharged incendiary material” into the
house and destroyed it and its contents. 603 S.W.2d at 788–89. Steele (the property
12
owner) and the tenants who were living in the home at the time 6 sued the City of
Houston asserting that the destruction of the home and their personal property
entitled them to compensation under the Texas Constitution’s takings clause. See id. at
788–89.
The supreme court held that Steele and the tenants had pleaded sufficient facts
to allege a compensable claim under the takings clause, reasoning that the
claim was made under the authority of the Constitution and was not
grounded upon proof of either a tort or a nuisance. It was a claim for the
destruction of property, and governmental immunity does not shield the
City of Houston. The Constitution itself is the authorization for
compensation for the destruction of property and is a waiver of
governmental immunity for the taking, damaging or destruction of
property for public use.
We accordingly reverse the judgments of the courts below.
Plaintiffs, upon remand, will be entitled to make proof that the City of
Houston, acting through its officers with authority or color of authority,
intentionally set the house on fire or that the City prevented the fire’s
extinguishment after it was set. They must also prove that the
destruction was done “for or applied to public use.” That is the factor
which distinguishes a negligence action from one under the constitution
for destruction. That the destruction was done for the public use is or
can be established by proof that the City ordered the destruction of the
property because of real or supposed public emergency to apprehend
armed and dangerous men who had taken refuge in the house.
Id. at 791–92 (citation omitted).
The court observed that the law had “moved beyond the earlier notion that the
government’s duty to pay for taking property rights is excused by labeling the taking
6
The tenants were not at home when police officers set it ablaze. Steele,
603 S.W.2d at 789.
13
as an exercise of the police powers.” Id. at 789. But, the court noted, the City of
Houston could
defend its actions by proof of a great public necessity. Mere convenience
will not suffice. Uncompensated destruction of property has been
occasionally justified by reason of war, riot, pestilence[,] or other great
public calamity. Destruction has been permitted in instances in which
the building is adjacent to a burning building or in the line of fire and
destined to destruction anyway.
Id. at 792 (emphases added) (citation omitted). The court went on to explain what
Professor William L. Prosser had said “concerning the defense” and stated that “[t]he
scant proof made by the City of Houston in this case does not establish as a matter of
law that it is excused from making compensation for the destruction of plaintiffs’
dwelling and personal property.” Id. (emphasis added) (citing William L. Prosser, The
Law of Torts, § 24 (4th ed. 1971)).
Federal courts have also recognized that the necessity doctrine is a defense to
liability. See, e.g., Milton v. United States, 36 F.4th 1154, 1162 (Fed. Cir. 2022); TrinCo Inv.
Co. v. United States, 722 F.3d 1375, 1379–80 (Fed. Cir. 2013) (citing Steele); In re
Upstream Addicks & Barker (Tex.) Flood-Control Reservoirs, 146 Fed. Cl. 219, 263–
64 (2019).
Here, the Homeowners pleaded sufficient facts to establish that the City’s
deliberately breaching the dam was done for public use because the mayor had
determined (1) that because of the fall 2018 rains, the imminent possibility existed that
City residents and the City itself would suffer severe injury and property damage due
to the dam’s possible failure and (2) that “extraordinary measures must be taken to
14
alleviate the potential suffering of people and to protect or rehabilitate property.”7 See
Steele, 603 S.W.2d at 792; see also San Jacinto River Auth. v. Burney, 570 S.W.3d 820,
837 (Tex. App.—Houston [1st Dist.] 2018) (“A taking is for public use if it is
necessary to advance or achieve the intended public use.”), aff’d sub nom. San Jacinto
River Auth. v. Medina, 627 S.W.3d 618 (Tex. 2021). Although the City used the correct
procedural vehicle to attack the sufficiency of the Homeowners’ pleadings, it was
improper for the City to raise the necessity doctrine in its jurisdiction plea because—
based on Steele and the City’s own admission—it is a defense that the City must
prove.8 Cf. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009) (noting that immunity from
liability is an affirmative defense that cannot be raised by a jurisdictional plea); Schmitz
v. Denton Cnty. Cowboy Church, 550 S.W.3d 342, 361 n.22 (Tex. App.—Fort Worth
2018, pet. denied) (mem. op. on reh’g) (noting that “limitations is not an appropriate
subject of a plea to the jurisdiction because it is an affirmative defense, not a
jurisdictional infirmity”). We thus conclude and hold that the trial court erred to the
The Homeowners dispute whether there were emergency conditions at the
7
time of the breach. The Homeowners pleaded that the City “took steps to breach the
dam under the mistaken notion that there was an emergency condition” and pointed
to the engineering report’s breach analysis as evidence that there was no emergency.
The Homeowners thus contended that the “emergency conditions” claimed by the
City cannot “serve to shield the City from the resulting harm of [its] actions.” We
need not determine whether the City correctly assessed the situation.
At this juncture, we need not determine whether the Texas Supreme Court still
8
recognizes the necessity doctrine as a defense to a takings claim (Steele was decided in
1980), the doctrine’s contours, or its application to these facts. We similarly do not
need to address the application of the Texas Disaster Act of 1975.
15
extent that it granted the plea to the jurisdiction on this ground. We thus sustain this
part of the Homeowners’ single issue.
B. Intent and Causation
The Homeowners maintain that the City’s deliberately breaching the dam was
an intentional act that resulted in damage to their property for public use. The City
contends that the Homeowners failed to plead sufficient facts to demonstrate that the
City intended to damage their property or that the City’s actions proximately caused
those damages. We address each element in turn.
Regarding intent in the takings context, the Texas Supreme Court has explained
that
the government’s “mere negligence which eventually contributes to the
destruction of property is not a taking”; rather, the government must act
intentionally. This requirement is rooted in the constitutional provision
that a compensable taking occurs “only if property is damaged or
appropriated for or applied to public use.” An accidental destruction of
property does not benefit the public. The public-use limitation “is the
factor which distinguishes a negligence action from one under the
constitution for destruction.”
For purposes of article I, section 17, a governmental entity acts
intentionally if it knows either “that a specific act [was] causing
identifiable harm” or “that the specific property damage [was]
substantially certain to result from” the act. A governmental entity is
substantially certain that its actions will damage property only when the
damage is “necessarily an incident to, or necessarily a consequential
result of the [entity’s] action.” The government’s knowledge must be
determined as of the time it acted, not with benefit of hindsight.
City of San Antonio v. Pollock, 284 S.W.3d 809, 820–21 (Tex. 2009) (footnotes omitted).
16
Here, the Homeowners pleaded that on November 1, 2018, the City’s mayor
issued an emergency order—the local-disaster declaration—and City crews used an
excavator to breach the dam that same day. The Homeowners further pleaded that
“the results of the City’s actions have been nothing short of devasting for the
residents along the waterway.” These results include substantial erosion throughout
the length of the waterway and on nearly every lot, crumbling retaining walls that have
fallen into the almost-dry creek bed, and some Homeowners facing the potential of
losing the structural integrity of their homes and in-ground pools. According to the
Homeowners, “estimates for the damage caused by the City conservatively total
around $2,000,000.”
The Homeowners additionally pleaded that two of the Homeowners—Stephen
Dedwylder and Bruce Hammond—met with Valamides and another City
representative in February 2020 to discuss the City’s request to access the lakebed to
inspect the stormwater infrastructure along the waterway. During this meeting, the
City’s breaching the dam and the resulting harm was also discussed. When Dedwylder
asked Valamides about the engineering report and why the City “acted in
contravention of the recommendations,” Valamides responded that she “didn’t make
the decision” but was involved in the discussions. According to the Homeowners,
when Valamides was asked “if the [City] was aware of the harm to upstream
properties that breaching the dam would cause, Valamides replied ‘Yes.’”
17
The City counters that the Homeowners cannot rely on a lower-level city
employee’s statements to establish the City’s intent because the Homeowners alleged
no facts linking the employee’s purported knowledge to the Mayor, city council, or
any final policymaker for the City. But according to the Homeowners’ pleadings,
Valamides—an engineer with the City’s Stormwater Management Department—was
involved in the discussions regarding the dam breach, and she confirmed that the City
was aware that the upstream properties would be damaged. Construing the pleadings
liberally in the Homeowners’ favor and looking to the Homeowners’ intent as we
must, we conclude that based on the pleadings, the Homeowners have pleaded
sufficient facts to allege that when the City intentionally breached the dam, it knew
that the damage to the Homeowners’ property was substantially certain to result from
that act.9 We therefore sustain this part of the Homeowners’ only issue.
Turning to proximate cause, a takings claimant must plead and prove that the
government’s intentional acts were the proximate cause of the taking or damaging of
the property. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 483–84 (Tex.
2012); see also State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941) (noting that “true test” for
9
The City also claims that “an assertion of negligence is at the heart of [the
Homeowners’] complaint” because the Homeowners pleaded that the City
deliberately breached the dam “under the mistaken notion” that there was an
emergency. Thus, the City argues, it was merely negligent. But even if the City was
wrong about the existence of an emergency, the Homeowners pleaded that the City
intentionally breached the dam knowing that damage to the Homeowners’ property
was substantially certain to result.
18
a takings claim is whether a governmental entity “intentionally perform[ed] certain
acts in the exercise of its lawful authority . . . which resulted in the taking or damaging
of plaintiffs’ property, and which acts were the proximate cause of the taking or
damaging of such property”). Proximate cause comprises cause in fact and
foreseeability, and cause in fact “means that the act or omission was a substantial
factor in bringing about the injury, without which the harm would not have occurred.”
Brandywood Hous., Ltd. v. Tex. Dep’t of Transp., 74 S.W.3d 421, 426 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (citing Doe v. Boys Club of Greater Dall., Inc.,
907 S.W.2d 472, 477 (Tex. 1995)).
Here, even construing the pleadings liberally in the Homeowners’ favor and
looking to the Homeowners’ intent, we cannot conclude that they have pleaded
sufficient facts to allege that the City’s deliberately breaching the dam was the cause in
fact of their damages. The Homeowners conceded that the dam was not in “ideal
condition” at the time of the breach and admitted that the engineering firm had
concluded that the dam would likely fail if no remedial actions were immediately
taken. So while the Homeowners have pleaded sufficient facts to allege that the City’s
actions were a substantial factor in bringing about the damage to their property, they
have not pleaded that the damage would not have occurred had the City not breached
the dam. See Burney, 570 S.W.3d at 836 (concluding that pleadings sufficed to allege a
takings claim where plaintiffs alleged that “their property was damaged when the
flooding reached their property, and it would not have flooded but for the water
19
released by the River Authority,” that “their property would not have flooded under
natural conditions,” and that “the flooding they experienced was far worse than it
would have been under natural conditions”); see also Gragg, 151 S.W.3d at
554 (explaining that “[i]t was not enough” for a takings claimant “to trace the
damaging flooding back to releases from the dam,” and that he “was required to
prove that the same damaging floods would not have occurred under the same heavy
rainfall conditions had the dam not been constructed,” which was a fact issue). We
thus overrule this part of the Homeowners’ single issue.
C. Opportunity to replead
In their brief, the Homeowners request—as they did at the conclusion of their
response to the City’s jurisdictional plea in the trial court—the opportunity to amend
their pleadings if we conclude that they are deficient. If the pleadings lack sufficient
facts to affirmatively demonstrate the trial court’s jurisdiction (as here) but do not
affirmatively demonstrate incurable jurisdictional defects, the issue is one of pleading
sufficiency, and the Homeowners should be afforded the opportunity to amend. See
Miranda, 133 S.W.3d at 226–27. But if a pleading defect cannot be cured, remand for
amendment would serve no legitimate purpose and, thus, should not be allowed. See
Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007).
Here, although the Homeowners pleadings are defective because they have
failed to plead sufficient facts to show that the City’s deliberately breaching the dam
was the cause in fact of the Homeowners’ damages, their pleadings do not
20
affirmatively negate this element. See Miranda, 133 S.W.3d at 226–27. The issue here is
one of pleading sufficiency, not of jurisdictional impossibility. See id. Accordingly, the
Homeowners should be allowed the opportunity to amend their pleadings to cure this
jurisdictional defect.10 See id.; see also Koseoglu, 233 S.W.3d at 839 (stating that a plaintiff
deserves “a reasonable opportunity to amend” unless the pleadings affirmatively
negate the existence of jurisdiction (quoting Sykes, 136 S.W.3d at 639)).
V. Conclusion
With the exception of cause in fact, we conclude that the Homeowners have
pleaded sufficient facts to support an inverse-condemnation claim under the Texas
Constitution. We thus reverse the trial court’s order granting the City’s plea to the
jurisdiction on the Homeowners’ inverse-condemnation claim and remand the case to
the trial court to allow the Homeowners the opportunity to replead and for further
10
The City asserts that the Homeowners should not be allowed to replead
because they already had an opportunity to do so in the trial court. The jurisdictional
plea giving rise to this appeal was the City’s second jurisdictional plea. The City’s first
plea, which the trial court never considered or ruled on, generally challenged the
sufficiency of the pleadings supporting the Homeowners’ inverse-condemnation
claim—“Plaintiffs have not pleaded and cannot establish facts to support a valid
inverse[-]condemnation claim which would result in a waiver of immunity”—but
lacked the specificity of the City’s second plea. After the City filed its first plea, the
Homeowners amended their pleadings, and in response, the City filed its second,
more detailed jurisdictional plea along with a brief in support containing the
jurisdictional challenges discussed above. Under these facts and because the pleadings
do not affirmatively negate jurisdiction, we conclude that the Homeowners should be
afforded the opportunity to replead. See Koseoglu, 233 S.W.3d at 839–40 (suggesting
that a plaintiff should be given a reasonable opportunity to replead after a trial court
finds merit in a plea to the jurisdiction if the defects can be cured).
21
proceedings consistent with this opinion. We affirm the rest of the trial court’s order
granting the City’s jurisdictional plea.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: August 4, 2022
22