Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
On appeal from the 347th District Court of Nueces County, Texas.
Before Chief Justice Valdez and Justices Benavides and Longoria
NORA L. LONGORIA, Justice.
In this interlocutory appeal, the City of Corpus Christi (the "City") appeals the trial court's denial of its plea to the jurisdiction in a suit filed by Aguirre Properties, Inc. and Gilbert Aguirre, II (the "Plaintiffs") asserting claims against the City for negligence, unconstitutional takings, and nuisance. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2012). The City contends that the trial court's denial of its plea to the jurisdiction was erroneous for three reasons: (1) the Plaintiffs failed to affirmatively demonstrate a waiver of the City's immunity from suit under the Texas Tort Claims Act ("TTCA") and therefore failed to establish the trial court's jurisdiction over their negligence claims; (2) the Plaintiffs failed to plead their takings claims sufficiently to establish jurisdiction; and (3) the Plaintiffs failed to plead their nuisance claims sufficiently to establish jurisdiction. For the reasons set forth below, we affirm the trial court's order in part and reverse it in part. Specifically, we reverse the trial court's order to the extent that it denied the City's plea to the jurisdiction with respect to the Plaintiffs' takings claims based on the three occurrences of flooding alleged in their original petition. We render a judgment dismissing those claims. In all other respects, we affirm the trial court's order. The case is remanded for further proceedings consistent with this opinion.
I. Standard of Review
A. Plea to the Jurisdiction
A plea to the jurisdiction challenges the trial court's subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the record de novo to determine whether the trial court has subject matter jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). "We consider only the evidence pertinent to the jurisdictional inquiry and do not weigh the merits." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Also, we construe the pleadings in favor of the plaintiff, accepting all its allegations as true. Bland Indep. Sch. Dist., 34 S.W.3d at 555. To prevail, the defense must show that, even accepting all of the plaintiffs allegations as true, an incurable jurisdictional defect remains on the face of the pleadings that deprives the trial court of subject matter jurisdiction. Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 56 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
B. Immunity from Suit
In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction over lawsuits in which the State or certain governmental units have been sued unless the State consents to suit. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged in the pleadings unless the defendant presents evidence to negate their existence. Miranda, 133 S.W.3d at 226-27. If a plea to the jurisdiction challenges the jurisdictional facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda, 133 S.W.3d at 227); Bland Indep. Sch. Dist, 34 S.W.3d at 555. If that evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco, 298 S.W.3d at 622; Miranda, 133 S.W.3d at 227-28. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Miranda, 133 S.W.3d at 228.
II. The Plaintiffs' Factual Allegations
In this case, the trial court did not hold an evidentiary hearing, and the City did not offer any evidence in support of its plea to the jurisdiction. Therefore, we determine jurisdiction based on the allegations in the Plaintiffs' original petition, which is their live pleading. See Miranda, 133 S.W.3d at 226-27.
In relevant part, the Plaintiffs allege the following facts in their original petition:
7. Plaintiffs suffered damage to their property located at 2302 N. Port @ [sic] Broadway, Corpus Christi, Texas 78401, Nueces County, Texas (hereinafter "Property") as a result of multiple occurrences caused by the city.
8. On or about July 15, 2010 the City's Water Department responded to a call from Plaintiff Mr. Aguirre regarding a water leak on the Property. Upon inspection by the City, the City uncovered "a damaged sewer line." The City using motor-driven vehicles and or equipment attempted to repair the damaged sewer line. Unfortunately the City's efforts failed.
9. Less than three weeks later, on or about August 9, 2010, the City was working on a water line running parallel no more than ten feet away from the Property. Utilizing motor-driven vehicles and/or equipment, the City negligently caused a raw sewage line to rupture, resulting in the mixing of drinking water with raw sewage as well as causing significant back flow flooding through the sewage line and above ground flooding. There were tire tracks in the mud going right up to the work site, evidencing the City's use of motor-driven vehicles and/or equipment.
10. The City, knowing it had caused the sewage line rupture resulting in flooding and knowing that such flooding would cause substantial damage to the Property, used motor-driven vehicles and/or equipment to construct two dams (mounds of dirt) which resulted in the diversion of the water into the sewage outlet at the Property. As further acknowledgment of the City's knowledge and in addition to the mounds of dirt created by the City, the City had the Wastewater Department attend the site and "jet their main line." This "jetting" of the main line was also negligent in and of itself in the face of a sewage line which, not more than three weeks earlier, was reported damaged. Upon information and belief, jetting the main line further caused rupture to the sewage line exacerbating the increasingly foul situation developing on the Property. The flooding of the sewage system on August 9, 2010 caused by the City's actions resulted in severe drainage to the Property.
11. On or about August 10, 2010, Mr. Gilbert Aguirre, II discovered the damages caused by the City's actions and the resultant [property damage]. He contacted the City's contractor who he was aware had worked on the site previously. The foreman met with Gilbert Aguirre, II and told him that the mounds must have been constructed by City employees. The foreman called the City at that meeting. Unfortunately, the diverted sewage water flooded into the Property, causing significant property damages. The City of Corpus Christi acknowledged this was "waste water back up" in its correspondence attached hereto as Exhibit "A." After the foreman contacted the City, the City sent a vacuum truck and additional motor vehicles and motor equipment to rectify the situation (the City actually sent a vacuum truck two times to unstick the water line). These actions in fact only exacerbated the property damages the Property sustained. . . .
12. Despite having actual knowledge of the sewage line rupture and of the damage that had resulted therefrom and which would continue absent rapid remedial actions by the City, the City failed to address the problem. As a result of the City's actions and/or omissions less than two weeks after the City's meeting with Mr. Aguirre about his claim for damages, a second flood occurred at the same location causing additional damages to the Property. On this occurrence, sewage flooded into the building through a bathroom up to two inches deep. The sewage floated across the 2, 000 square foot building entirely submerging the floor and base boards and seeping into and climbing up the walls of the Property, before exiting the other side through the front of the building. After being notified once again about yet another flooding at the same location, the City again recklessly utilized motor vehicles and/or motor equipment in a second attempt to rectify the situation at the Property, which once more only further exacerbated the damages the Property sustained.
13. About three weeks later, on or about September 13, 2010, a third flood into the Property occurred. It was this third occurrence that caused the most significant damage to the Property. Again, the City recklessly utilized motor vehicles and motor equipment to attempt to rectify the situation, which again only further exacerbated the property damages the Property sustained.
14. The Property was used by . . . Mr. Aguirre to conduct his business, and he had plans to expand it. To this end, ... Mr. Aguirre expended substantial amounts in improvements on the Property in order to further his business efforts. However, since the time of the first occurrence to the present, the Property, as a result of the City's actions has been rendered entirely unusable for any purpose. Thus, Plaintiffs have been forced to unnecessarily suffer loss of income due to their inability to use the Property during this time frame. Moreover, Mr. Aguirre suffered physical injury (i.e., a respiratory infection) due to his exposure to the sewage left on the Property by the City and in which the City has continued to refuse to remedy.
III. The Plaintiffs' Causes of Actions
Based on the foregoing factual allegations, the Plaintiffs assert the following claims against the City for (1) negligence, (2) unconstitutional takings, and (3) nuisance.
15. Plaintiff repeats and incorporates by reference the allegations contained in paragraphs 1-14 herein for all purposes.
16. Defendant City of Corpus Christi may be held to answer in a court of law for the occurrences just described because the Plaintiffs' assert that the employees of Defendant City of Corpus Christi were negligent in the operation of a motor vehicle and/or equipment on numerous occasions, so that sovereign immunity is waived under the Texas Tort Claims Act.
17. At all times material, all of the agents, servants, and employees of Defendant who were in any way connected with the subject occurrences were acting within the course and scope of their employment or official duties and in furtherance of the duties of their office or employment.
18. The occurrences described in this petition are a direct and proximate result of the negligence of the City of Corpus Christi and its agents, servants, ...