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Cenizo Corporation v. City of Donna

April 25, 2013

CENIZO CORPORATION,
APPELLANT,
v.
CITY OF DONNA,
APPELLEE.



On appeal from the County Court at Law No. 7 of Hidalgo County, Texas.

The opinion of the court was delivered by: Dori Contreras Garza, Justice

MEMORANDUM OPINION

Before Justices Rodriguez, Garza and Perkes

Memorandum Opinion by Justice Garza

In this inverse condemnation case, appellant Cenizo Corporation ("Cenizo") appeals the trial court's judgment in favor of appellee, the City of Donna ("the City"). By seventy-seven issues, Cenizo challenges the sufficiency of the evidence supporting the trial court's findings of fact and conclusions of law. We affirm.

I.BACKGROUND

Many of the facts involved in this case are undisputed. Cenizo is a farming operation that grows crops on leased acreage in the Rio Grande Valley. Thomas Jendrusch, a primary owner of Cenizo, testified at the bench trial. The issue in this case is whether the City, by plugging drainage pipes directing water away from Cenizo's soybean crop in July 2008, damaged Cenizo's property such that the City's actions constituted an unconstitutional "taking" under the Texas Constitution.

The property at issue is a fifty-three-acre parcel located on the west side of Hutto Road in Donna, Texas. Cenizo sub-leased the property from Allen W. Cohrs, who, in turn, leased the property from the Ennis family, the owners of the property.

Around July 4, 2008, the area received approximately seven inches of rain. Several weeks later, in late July, the entire Rio Grande Valley was indundated by heavy rains associated with Hurricane Dolly, which caused widespread flooding. The Cenizo soybean field received heavy rain-around twenty-two to thirty inches-which flooded the field.

The property naturally drains from west to east. Two drainage pipes direct water away from the property and to the east, passing underneath Hutto Road. The drainage pipes were installed decades earlier by an unknown party and are neither owned nor maintained by the City. In order to protect residences on the east side of Hutto Road from further flooding, P.R. Avila, the city manager at the time, instructed City crews to block the drainage pipes. Portions of the soybean field were underwater for up to two weeks.

Cenizo sued the City, asserting that, as a result of the City's blocking the drainage pipes on Cenizo's property, rainwater was prevented from draining from its soybean crop, resulting in a reduced crop yield from the field. Cenizo asserted that the City's actions constituted an unconstitutional "taking" of its property. Following a bench trial, the trial court found that no taking had occurred and rendered a take nothing judgment in the City's favor.

The trial court issued forty-four findings of fact and thirteen conclusions of law. On appeal, Cenizo challenges the sufficiency of the evidence supporting the trial court's findings of fact numbered 5, 10, 15, 19 through 21, and 24 through 43.*fn1 Cenizo also challenges three of the trial court's conclusions of law-numbers 10, 11, and 13.

II.STANDARD OF REVIEW AND APPLICABLE LAW

Findings of fact in a bench trial have the same force and effect as findings by the jury. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 147 (Tex. App.-Dallas 2012, no pet.). If there is any evidence of a probative nature to support the trial court's judgment, we will not set it aside, and if there is any evidence in the record to sustain the trial court's findings, we may not substitute our findings of fact for those of the trial court. Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607, 609 (Tex. 1979); Garcia v. Tautenhahn, 314 S.W.3d 541, 544 (Tex. App.-Corpus Christi 2010, no pet.). We review the trial court's findings of fact by the same standards we use in reviewing the sufficiency of the evidence supporting a jury's answers. Garcia, 314 S.W.3d at 544. Unchallenged findings of fact are binding on the appellate court, unless the contrary is established as a matter of law or there is no evidence to support the finding. Sharifi, 370 S.W.3d at 147. When, as here, the appellate record contains a reporter's record, findings of fact on disputed issues are not conclusive and may be challenged for sufficiency of the evidence. Id.

If a party with the burden of proof-here, Cenizo-challenges the legal sufficiency of an adverse finding, we must determine whether the complaining party has demonstrated on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. See Barnes v. Mathis, 353 S.W.3d 760, 762 (Tex. 2011); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Garcia, 314 S.W.3d at 544; see also Perez v. Perez, No. 13-11-00169-CV, 2013 WL 398932, at *4 (Tex. App.-Corpus Christi Jan. 31, 2013, no pet.) (mem. op.). In a "matter of law" challenge, we "first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary." Dow Chem. Co., 46 S.W.3d at 241. If there is no evidence to support the finding, we will examine the entire record in order to determine whether the contrary proposition is established as a matter of law. Id.; Garcia, 314 S.W.3d at 544. We will sustain the issue if the contrary proposition is conclusively established. Dow Chem. Co., 46 S.W.3d at 241; Garcia, 314 S.W.3d at 544. The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); Garcia, 314 S.W.3d at 544.

When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242; Garcia, 314 S.W.3d at 544. The court of appeals must consider and weigh all of the evidence and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242.

The Texas Constitution provides 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. To establish a takings claim, Cenizo must prove that (1) the City intentionally performed certain acts (2) that resulted in a taking of property (3) for public use. City of Anson v. Harper, 216 S.W.3d 384, 391 (Tex. App.-Eastland 2006, no pet.) (citing Gen. Servs. Comm'n v. Little--Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001)); see Strother v. City of Rockwall, 358 S.W.3d 462, 467 (Tex. App.-Dallas 2012, no pet.). The determination of whether a taking has occurred is a question of law. City of Austin v. Travis County Landfill Co., 73 S.W.3d 234, 241 (Tex. 2002). "'Taking,' 'damaging,' and 'destruction' of one's property are three distinct claims arising under [a]rticle 1, [s]section 17 [of the Texas Constitution]." City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004). "[T]he term 'taking' has become used as a shorthand to refer to all three types of claims." Id. "[W]hen a governmental entity physically damages private property in order to confer a public benefit, the entity may be liable under article I, section 17 if it: (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 governmental action." Id. at 314; see also City of Del Rio v. Felton, No. 04-06-00091, 2007 WL 247655, at *6 (Tex. App.-San Antonio Jan. 31, 2007, no pet.) (mem. op.). "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, 821 (Tex. 2009).

"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). "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." Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). "While nonrecurrent flooding may cause damage, a single flood event does not generally rise to the level of a taking." Id.; see Bexar County v. Colombrito, No. 04-12-00284, 2012 WL 6743569, at *4 (Tex. App.-San Antonio Dec. 31, 2012, no pet.) (mem. op.) (same); Ahart v. Tex. Dep't of Transp., No. 14-05-00027-CV, 2006 WL 2167223, at *3 (Tex. ...


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