Darrell Church v. City of Alvin, Texas

Opinion issued June 25, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00865-CV
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DARRELL CHURCH, Appellant
V.
CITY OF ALVIN, TEXAS, Appellee
On Appeal from County Court at Law No. 2 & Probate Court
Brazoria County, Texas
Trial Court Case No. CI047129
MEMORANDUM OPINION
This inverse condemnation suit arises out of a bridge replacement project in
Brazoria County that affected a driveway entrance. In his suit against the City of
Alvin, Church alleges that the new bridge, which more closely abuts his driveway
entrance and provides less maneuverability for a turn, prevents him from entering
and exiting his property with his 40-foot gooseneck trailer when traveling in the
lane nearest the driveway. He further alleges that the bridge construction impaired
the drainage on his property and killed several trees on his land.
Church sought damages from the City for inverse condemnation and a
violation of the Texas Water Code, among other causes of action. The trial court
granted the City’s plea to the jurisdiction based on governmental immunity.
Church appeals that ruling with respect to the Water Code and inverse
condemnation claims, contending that the evidence raises fact issues on the
jurisdictional question. Because Church (1) cannot establish a waiver of
governmental immunity for a violation of the Water Code and (2) failed to adduce
facts that support either a compensable taking or a substantial impairment of his
existing access to his property, we conclude that the trial court properly granted the
City’s plea.
Background
In 2001, Church purchased a seven acre tract of land located along County
Road (CR) 172. A bridge is part of CR 172 as it approaches Church’s property and
runs partly in front of it. Between the paved surface of CR 172 and Church’s
property is a government-maintained open bar ditch that runs alongside the paved
road. Driveway access to Church’s property is via an entrance across that ditch. It
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consists of a box culvert drain placed within the ditch, with a driveway apron built
on top of it in the right-of-way.
The bridge construction project
The Federal Department of Transportation provides funding to the states to
replace obsolete bridges. See 23 C.F.R. §§ 650.405, 650.413; 43 TEX. ADMIN.
CODE § 16.153(a)(1)(B), (6). In Texas, the Texas Department of Transportation
(TxDOT) administers the expenditure of these federal funds through its Highway
Bridge Program. In 2005, TxDOT identified ten obsolete bridges in and around
Brazoria County for replacement, including the bridge on CR 172 that abuts
Church’s property within the City of Alvin. The City of Alvin City Council
authorized the City to contract with TxDOT to replace the CR 172 bridge and five
other bridges and approved TxDOT’s recommendation that the City take
responsibility for replacing the four remaining bridges.
Under the City/TxDOT agreement, the City was responsible for acquiring all
necessary rights of way for the TxDOT bridge projects. TxDOT bore the
responsibility to perform the bridge replacements. The agreement provides that
TxDOT would administer the contracts for construction, including the bridge
design. The agreement expresses that TxDOT is not the City’s agent for purposes
of the project:
The parties to this Agreement agree that no party is an agent, servant,
or employee of the other party and each party agrees it is responsible
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for its individual acts and deeds as well as the acts and deeds of its
contractors, employees, representatives, and agents.
Pursuant to the agreement, TxDOT hired Klotz Associates, Inc. to design the new
CR 172 bridge and Tom-Mac, Inc. to build it.
James Nance, the City’s project manager, monitored the project’s status and
served as the City liaison to the project. In an affidavit proffered by the City in
support of its plea to the jurisdiction, Nance averred that,
[a]s the City’s Project Representative, I did not have any control over
any aspect of the Project, did not direct the engineers on how to
design the project, and did not direct the construction contractor on
how to build it. In addition, I reviewed the records of the City
regarding the Project. As a TxDOT project, the City did not provide
any employees to perform work on the Project for the general
contractor [Tom-Mac, Inc.] or for the engineering firm [Klotz
Associates, Inc.].
The driveway dispute
Work began in January 2010. Church informed the City’s public works
director, David Kocurek, that he was concerned that the bridge expansion was
going to interfere with his existing driveway entrance. Church told Kocurek that
he uses a 40-foot horse trailer for business and recreation and that he housed the
trailer on his property. Church testified that, as a result of these discussions,
Kocurek agreed that the City would construct a new 40-foot asphalt driveway on
Church’s private property and install new fencing across the area where the
original driveway had been located. Kocurek and Church prepared and initialed a
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drawing of Church’s property containing handwritten notes that described the
fencing and the relocation of Church’s driveway. However, Thomas Peebles, the
City’s Clerk, proffered an affidavit in which he averred that the City Council never
authorized this agreement. The hand-drawn map was not a part of the Council’s
resolution approving the bridge construction or any subsequent resolution.
The proposed driveway relocation also did not appear in the TxDOT
engineering firm’s plans for the new bridge. Instead, the new bridge was planned
so that it would stop short of Church’s existing driveway entrance. TxDOT and its
contractors replaced the bridge pursuant to the plans. The contractors built a new,
narrower entrance across the bar ditch in the public right-of-way that connected to
Church’s existing driveway, but they did not move the driveway entrance or
construct a new driveway on Church’s land. As Nance describes it:
The bridge on CR 172 is northeast of Church’s driveway
and is a few feet longer than the old bridge it replaced.
As part of the Project, the apron to the bridge was
reconstructed . . . while TxDOT’s contractors were
working on the Project, Church complained that the
guardrail constructed on the southeast side of the bridge,
as a part of the bridge approach, was nearer to his
existing driveway than the prior bridge. He further
complained that the location of the guardrail made it
impossible for him to turn into his driveway while
traveling south on CR 172 and towing his horse trailer, or
to turn north from his driveway while towing his horse
trailer.
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Stephanie Bradford, the Property and Acquisition Coordinator for the
Engineering Department of Brazoria County, averred that entire right-of-way
where the new CR 172 bridge was constructed was a part of the County Road
System and within a right-of-way easement in favor of Brazoria County, and then
the City of Alvin, since at least 1967.
In his deposition, Church elaborated on the damages he alleged. Church
testified that the new 172 bridge extends approximately 20 feet beyond where the
previous bridge ended, which narrowed the available turning radius when entering
or exiting his property in the near lane. He explained, “[I] can barely turn my truck
off of that driveway and stay on the driveway now, where I had a 45-foot apron
[crossing the roadway bar ditch] the way it was before.” He noted that the
construction crew rebuilt Church’s driveway access to CR 172, but with only a 12-
foot-wide driveway entrance across the bar ditch in the public right-of-way instead
of the 24-foot-wide paved entrance he previously had.
In addition, Church testified that the construction workers had replaced a
large box culvert in the open bar ditch with a smaller, lower-placed, culvert.
Church explained that the change has subjected portions of his property to
increased flooding and slower drainage, resulting in erosion. He also claims that
the construction workers, using motor-driven equipment, cut tree roots while
digging near his property line, which caused several trees on his property to die.
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The trial court proceedings
In his third amended petition, filed in response to the City’s jurisdictional
plea, Church alleged that the City waived immunity because “motor driven
vehicles were used by [the City’s] employees to destroy [Church’s] trees, culvert,
and to expand a roadway bridge.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.021(1)(a) (West 2011) (waiving immunity for claims against governmental
unit based on operation or use of motor-driven vehicle or motor-driven
equipment). Further, Church alleged that the City’s “failure to replace [his] culvert
with an equal or better culvert than [the] original culvert has diverted water and
caused it to overflow on [his] land in violation of Texas Water Code Sec. 11.086.”
The City challenged Church’s third amended petition in a reply filed after
the hearing on the plea. The trial court, “after reviewing the pleadings and
evidence on file,” granted the plea and dismissed Church’s suit.
Plea to the Jurisdiction
I. Standard of Review
If a governmental unit has immunity from a claim pending against it, a trial
court lacks subject-matter jurisdiction as to that claim. Rusk State Hosp. v. Black,
392 S.W.3d 88, 95 (Tex. 2012). The governmental unit may challenge the trial
court’s subject-matter jurisdiction by asserting a plea to the jurisdiction. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). In a
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plea to the jurisdiction, a party may challenge the pleadings, the existence of
jurisdictional facts, or both. Id. at 226–27. We review a trial court’s ruling on a
plea to the jurisdiction de novo. Id. at 228.
When a plea to the jurisdiction challenges the pleadings, we determine if the
plaintiff has alleged facts affirmatively demonstrating the court’s jurisdiction. Id.
at 226 (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993)). We construe the pleadings liberally in the plaintiff’s favor and look
to the pleader’s intent. Id. The allegations found in the pleadings may either
affirmatively demonstrate or negate the court’s jurisdiction. Id. at 226–27. If they
do neither, it is an issue of pleading sufficiency and the court should give the
plaintiff an opportunity to amend the pleadings. Id. If, however, the pleadings
affirmatively negate the existence of jurisdiction, then the court may grant a plea to
the jurisdiction without giving the plaintiff an opportunity to amend. Id. at 227.
When the governmental unit challenges the existence of jurisdictional facts,
and the parties submit evidence relevant to the jurisdictional challenge, we
consider that evidence when necessary to resolve the jurisdictional issues raised.
Id. The standard of review for a jurisdictional plea based on evidence “generally
mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”
Id. at 228. Under this standard, when reviewing a plea in which the pleading
requirement has been met, we credit as true all evidence favoring the nonmovant
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and draw all reasonable inferences and resolve any doubts in the nonmovant’s
favor. Id. The movant must assert the absence of subject-matter jurisdiction and
present conclusive proof that the trial court lacks subject-matter jurisdiction. Id.
Proof is conclusive only if reasonable people could not differ in their conclusions.
City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant
discharges this burden, the nonmovant must present evidence sufficient to raise a
material issue of fact regarding jurisdiction, or the plea will be sustained.
Miranda, 133 S.W.3d at 228.
Discussion
Church contends that we should reverse the trial court’s ruling because
(1) the trial court failed to afford him an opportunity to amend his pleadings before
dismissing his claims; (2) the Texas Tort Claims Act provides a jurisdictional basis
for allowing his claim of a Water Code violation; and (3) he has adduced some
evidence in support of his inverse condemnation and Texas Tort Claims Act
claims. We address these contentions in turn.
I. Amended Pleadings
As a threshold matter, Church questions whether the trial court’s ruling is
based on Church’s second amended petition—which was the live pleading when
the City filed its plea—or on Church’s third amended petition, which he filed in
response to the plea four days before the trial court held a jurisdictional hearing.
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We conclude that the trial court considered the third amended petition in
connection with its ruling; thus, Church was afforded an opportunity to amend his
pleadings before the trial court granted the jurisdictional plea.
The rules of civil procedure do not prescribe a deadline for filing amended
pleadings before the hearing or submission of a plea to the jurisdiction. See City of
McKinney v. Hank’s Rest. Grp., L.P., 412 S.W.3d 102, 110 (Tex. App.—Dallas
2013, pet. filed) (citing Grand Prairie Hosp. Auth. v. Tarrant Appraisal Dist., 707
S.W.2d 281 (Tex. App.—Fort Worth 1986, writ ref’d n.r.e.), for proposition that
holding that hearing on plea to jurisdiction is not “trial” under Rule 63, and so
amended pleading filed after hearing but before ruling was plaintiff’s live
pleading). In this case, the trial court recited in its ruling that it had “review[ed]
the pleadings of the parties.” Thus, the third amended petition is the operative
pleading for the purpose of our review of the trial court’s ruling. See id. (holding
amended petition filed before trial court ruled on plea to the jurisdiction was live
pleading for purposes of plea). Accordingly, we reject Church’s contention that he
was deprived of an opportunity to amend his pleadings.
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II. Water Code Claim
Church concedes that the Water Code does not waive governmental
immunity from suit, 1 but contends that, because section 101.021(b) of the Tort
Claims Act does, any pleading deficiencies are curable, as demonstrated by his
third amended petition. The City challenged both Church’s pleadings and the
existence of jurisdictional facts with respect to Church’s claimed Water Code
violation. Church’s briefing to this court challenges whether he had an opportunity
to amend his pleadings in light of the City’s jurisdictional challenge. As we have
noted, however, he had that opportunity. Church does not otherwise advance
jurisdictional facts that support a claim under the Texas Water Code. Because he
does not challenge the substantive merit of the trial court’s granting of a plea to the
jurisdiction on this claim, the trial court did not err in dismissing it.
III. Inverse Condemnation and Texas Tort Claims Act Claims
Relying on his third amended petition, Church contends that he is entitled to
damages for inverse condemnation because: (1) the new bridge has impaired
Church’s access to his property; (2) the project changed the configuration of the
drainage in the bar ditch, which causes more frequent flooding on his property; and
(3) motor-driven equipment used by the construction workers in the project
1
See City of Midlothian v. Black, 271 S.W.3d 791, 797–98 (Tex. App.—Waco
2008, no pet.) (holding that section 11.086 of Water Code does not waive
immunity from suit).
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severed tree roots, which caused the death of several trees on his property. The
City responds that Church (1) has not raised evidence of any compensable
impairment of access, and (2) does not allege and cannot establish that a taking
resulted from the City’s intentional acts.
A. Applicable law
The Texas Constitution’s takings 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.” TEX.
CONST. art. I, § 17. Article I, section 17 of the Texas Constitution thus expressly
waives governmental immunity for suits based on the taking, damaging or
destruction of property for public use. El Dorado Land Co., L.P. v. City of
McKinney, 395 S.W.3d 798, 801 (Tex. 2013); Steele v. City of Houston, 603
S.W.2d 786, 791 (Tex. 1980); GAR Assocs. III, L.P. v. State, 224 S.W.3d 395, 401
(Tex. App.—Houston [1st Dist.] 2006, no pet.).
Accordingly, a landowner may sue for inverse condemnation when the
government takes or damages the owner’s land for public use without providing
compensation via a formal condemnation proceeding. See City of Carrollton v.
HEB Pkwy. S., Ltd., 317 S.W.3d 787, 792 (Tex. App.—Fort Worth 2010, no pet.)
(citing City of Houston v. Tex. Land & Cattle Co., 138 S.W.3d 382, 387 (Tex.
App.—Houston [14th Dist.] 2004, no pet.)). An inverse condemnation claim
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requires the plaintiff to adduce facts that show a compensable taking of private
property; if a plaintiff cannot establish facts to support an inverse condemnation
claim, then the trial court lacks jurisdiction over the claim and should grant a
jurisdictional plea. Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397
S.W.3d 162, 166 (Tex. 2013).
To show that taking, a property owner must prove that a government actor
intentionally took or damaged the owner’s property for a public use. State v.
Holland, 221 S.W.3d 639, 643 (Tex. 2007). But “[i]t is not enough that the act
causing the harm be intentional—there must also be knowledge to a substantial
certainty that the harm will occur.” Harris Cnty. Flood Control Dist. v. Kerr, No.
13-0303, ___ S.W.3d ___, 2015 WL 3641517, at *2 (Tex. June 12, 2015) (citing
City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex. 2004)).
B. Analysis
1. Impaired access
Church first contends that the City owes him compensation for impairing
access to his driveway. He claims that he cannot enter or exit his property with his
40-foot horse trailer using the lane nearest his driveway because the driveway
entrance in the public right-of-way from CR 172 no longer is wide enough to
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accommodate the trailer when turning into or out of the near lane. 2 Diminished
value resulting from impaired access is compensable only when access is
materially and substantially impaired. State v. Dawmar Partners, Ltd., 267 S.W.3d
875, 878 (Tex. 2008) (per curiam) (citing City of Waco v. Texland Corp., 446
S.W.2d 1, 2 (Tex. 1969)); Smith v. City of League City, 338 S.W.3d 114, 124 (Tex.
App.—Houston [14th Dist.] 2011, no pet.); see also State v. Bristol Hotel Asset
Co., 293 S.W.3d 170, 174 (Tex. 2009) (“[D]iminished access to a landowner’s
remaining property is not compensable so long as reasonable access to the property
remains.”). Whether access has been materially and substantially impaired is a
threshold question of law we review de novo. Dawmar Partners, 267 S.W.3d at
878; State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). To make this showing, a
landowner can proffer evidence of a (1) total temporary restriction of access;
(2) partial permanent restriction of access; or (3) partial temporary restriction of
access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775
(Tex. 1993); Burris v. Metro. Transit Auth., 266 S.W.3d 16, 22 (Tex. App.—
Houston [1st Dist.] 2008, no pet.) (no impaired access claim where light rail
permanently closed one entrance to retail property but another remained). In
considering whether impaired access is material and substantial, courts take into
2
Church also testified that a portion of the guardrail for the new bridge crossed
inside his fence line, but he did not proffer any evidence that it crossed the
boundary of his property or was outside the public right-of-way; nor does he argue
any encroachment on appeal.
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account existing uses of the property that required particular access. See Heal, 917
S.W.2d at 10; Wilbert Family Ltd. P’ship v. Dallas Area Rapid Transit, 371
S.W.3d 506, 510 (Tex. App.—Dallas 2012, pet. dism’d). Courts further consider
whether reasonable access remains. Dawmar Partners, 267 S.W.3d at 878–89
(explaining that where reasonable access to property remains, hypothetical or
speculative uses for property do not provide basis for compensable damages in
condemnation suit). A diversion of traffic, diminished exposure to traffic, or
altered accessibility to a roadway does not constitute a material and substantial
impairment of access. See State v. Petropoulos, 346 S.W.3d 525, 532 (Tex. 2011).
In his response to the City’s plea to the jurisdiction, Church does not adduce
proof of a material and substantial impairment of access. First, the City adduced
evidence that TxDOT constructed the bridge wholly within the public right-of-
way: the bridge apron does not enter Church’s property, and the new bridge does
not physically obstruct Church’s existing driveway. See Heal, 917 S.W.2d at 11
(noting that “all of our prior impaired access cases involved physical obstructions
created by the public improvement”).
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Second, Church conceded in his deposition that he retains access to his
property and his existing driveway, but that driveway access across the bar ditch is
12 feet narrower when compared with the right-of-way access that existed before
the bridge construction. Crediting Church’s testimony that the entrance across the
bar ditch is narrower than it was does not raise a fact issue of a taking by
impairment, because Church still has access to the road. Via his existing driveway,
even with his trailer, Church can approach the drive from the far lane. See City of
San Antonio v. TPLP Office Park Props., 218 S.W.3d 60, 66–67 (Tex. 2007)
(“merely causing diversion of traffic or circuity of travel does not result in a
compensable taking.”). Further, Church did not adduce evidence that the project
has prevented him from accessing the roadway along the remaining frontage of his
property.
Because the bridge does not obstruct his driveway, Church’s claimed
impairment is different than the facts in City of Waco v. Texland Corp., the takings
case upon which he relies. As the Court in Heal explained, in Texland, the City of
Waco built a viaduct with piers “almost directly” in front of Texland’s loading
docks and warehouse doors so that the “lack of maneuverability reached such a
level that the warehouse was virtually unusable for its intended purpose because
trucks capable of transport could not access the premises.” Heal, 446 S.W.2d at 10
(citing Texland, 446 S.W.2d at 4).
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A compensable taking does not occur, however, when a property owner
retains reasonable access to the public roadway after a construction project.
Burris, 266 S.W.3d at 22 (no taking when light rail completely obstructed
driveway when other access point remained). Given that the new bridge (1) does
not physically obstruct Church’s private drive and (2) does not preclude other
access points to the roadway from his property, we hold that Church’s testimony
that the TxDOT-constructed entrance within the public right-of-way is narrower
than before does not constitute evidence of a “virtually impassable obstruction” or
a material and substantial impairment of access. See Heal, 917 S.W.2d at 11;
Dawmar Partners, 267 S.W.3d at 779–80 (rejecting takings claim where no
evidence showed that access to available roads was impossible or impracticable).
Accordingly, we hold that the trial court properly granted the City’s plea to the
jurisdiction against Church’s claim for impaired access. See TPLP Office Park,
218 S.W.3d at 66; Burris, 266 S.W.3d at 24; see also DuPuy v. City of Waco, 396
S.W.2d 103, 109 (Tex. 1965) (explaining landowner entitled to compensation if
public improvement destroys “all reasonable access” to property, however, no
compensable taking exists where landowner has reasonable access to property after
construction of public improvement); State v. Momin Props., Inc., 409 S.W.3d 1, 9
(Tex. App.—Houston [1st Dist.] 2013, pet. denied) (holding closure of access road
at railroad tracks not compensable because closure merely required traffic to travel
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more circuitous route to reach gas station or cross railroad tracks); State v.
Bhalesha, 273 S.W.3d 694, 698–99 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (“A property owner cannot recover damages when traffic is merely required
to travel a more circuitous route to reach his property.”).
2. Damage to drainage and trees
Church further contends that the trial court erred in dismissing his inverse
condemnation claims that the City’s replacement of a culvert and reconfiguration
of the drainage in connection with the bridge project caused increased flooding on
his property and killed several trees. He observes that the City’s agreement with
TxDOT (1) holds the City responsible for acquiring and providing right-of-way for
the project, (2) allows the City to review and comment on the work as required “to
accomplish the public purposes of Local Government,” and (3) provides that the
City may request changes at its own expense, “so long as it does not ‘unduly delay’
the development of the project.” He further notes that Kocurek, on behalf of the
City, negotiated with Church to address Church’s concerns about his driveway.
These facts, however, are insufficient to show an intentional taking by the
City. Mere negligence is not enough to establish a compensable taking: “the
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.”
Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).
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In this case, Church did not adduce evidence of any communication
concerning his property between TxDOT, which had assumed sole responsibility
for the design and construction of the CR 172 bridge, and the City. Nothing in the
record shows that the City knew that the reconfiguration of the drainage by
TxDOT’s contractor was substantially certain to result in flooding or that the
construction activities undertaken at TxDOT’s behest would kill Church’s trees.
The evidence also fails to raise a fact issue on whether the City knew that, by
agreeing to have TxDOT perform the bridge project, the alleged damages to
Church’s property were substantially certain to result. Absent such evidence, a
landowner cannot prevail on a claim for inverse condemnation. Compare City of
Keller v. Wilson, 168 S.W.3d 802, 829 (Tex. 2005) (holding that, absent “objective
indicia that the City knew flooding would occur,” there was no evidence that
City’s approval of revised drainage plan was intentional taking) with Kerr,
(concluding that homeowners raised fact issue concerning whether government
entities knew that their actions caused flooding where some evidence existed that
(1) entities received engineering advice explaining that additional development
would cause damaging flooding, and (2) entities knew that development would
lead to damaging flooding).
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3. Motor-driven equipment
Finally, Church alleges that the construction workers’ use of a motor driven
vehicle caused the flooding and tree damage, and thus he may sue the City under
the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(1)(A). In the trial court, Church alleged that the City
“[s]ubcontracted jointly with [TxDOT] and jointly hired the subcontractors to build
the bridge.” However, Nance averred that no City employee had participated in
the design or construction work for the project, and Church admitted in his
testimony that he had never seen a City employee working at the construction site.
The agreement between the City and TxDOT charged TxDOT with the actual
design and construction of the bridge, and disavowed any intent that its employees
and subcontractors would be agents of the City. Because the summary-judgment
record contains no evidence that a City employee operated motor-driven
equipment in connection with the bridge project, we hold that the trial court
properly granted the City’s jurisdictional plea on Church’s claim under the Texas
Tort Claims Act.
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Conclusion
We hold that the trial court properly granted the City’s plea to the
jurisdiction and dismissed for lack of subject-matter jurisdiction Church’s cause of
action for inverse condemnation and claims under the Texas Water Code and the
Texas Tort Claims Act. We therefore affirm the dismissal order.
Jane Bland
Justice
Panel consists of Justices Higley and Bland. *
*
Justice Sharp was a member of the original panel, but his term of office expired
after oral argument and before issuance of this opinion. See TEX. R. APP. P. 41.1.
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