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City of Rollingwood v. Brainard

Court of Appeals of Texas, Third District, Austin

May 31, 2017

City of Rollingwood, Texas, Appellant
Owen Brainard and Sally Brainard, Appellees


          Before Chief Justice Rose, Justices Field and Bourland


          Scott K. Field, Justice

         This case arises from flooding on property belonging to Owen and Sally Brainard that the City of Rollingwood allegedly caused. The Brainards sued the City for an intentional constitutional taking. The City filed a plea to the jurisdiction, and the trial court denied the plea. In its sole appellate issue, the City contends that the trial court erred in denying its plea to the jurisdiction. We will affirm the trial court's order denying the City's plea to the jurisdiction.


         In early 2009, John Andrews filed an application with the City to plat his property into two lots. As a condition for approval of his application, the City required Andrews to dedicate a drainage easement on his property and install a "flume" to convey storm water from Pickwick Lane, a street bordering the property. Before the City approved the application, Andrews sold part of his property to the Brainards. The Brainards' property is situated downhill from what remained of the Andrews property and from Pickwick Lane. After the Brainards refused to grant the easement, the City waived the requirement in exchange for an additional payment of $2, 500 from Andrews. The City approved Andrews's application with respect to the property he had not sold to the Brainards.

         Colleen and Todd Preheim later purchased two lots, one of which was the Andrews lot uphill from the Brainards. The Preheims wanted to build a large house on the lot neighboring the Brainards' property, and they filed a subdivision application and an application for a building permit. The Preheims' plans would increase the amount of impervious cover on their property, and the Preheims' engineers called for the construction of a detention pond to hold the excess runoff and dissipate it. The City approved the Preheims' applications, and the Preheims constructed a drainage system on their property, including a detention pond. The Brainards allege that, after the construction of the Preheims' system, their yard now frequently floods and is unfit for the uses the Brainards had intended for it.

         Much of the debate in this case concerns a curb on Pickwick Lane. The City asserts that a "break" in the curb has existed since a water line broke in 2005 and that runoff from the street has flowed down onto what is now the Brainards' property since that time. The Brainards, on the other hand, allege that no "break" in the curb existed until the Preheims constructed their drainage system. According to the Brainards, "the City worked together with the [Preheims] to create a scenario . . . where all of the stormwater from Pickwick could enter the [Preheims'] drainage facility and flow onto" the Brainards' yard. The Brainards allege that this collusion between the City and the Preheims included "paving over the Pickwick curb" and that "[t]he City performed the work that created these current roadway-curb conditions."

         The Brainards sued the City, [2] bringing causes of action for an unconstitutional taking (inverse condemnation) and nuisance.[3] The City filed a plea to the jurisdiction, which the trial court denied. This appeal followed.


         "Sovereign immunity from suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction." Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); see Engelman Irrigation Dist. v. Shields Bros., Inc., __S.W.3d__, No. 15-0188, 2017 WL 1042933, at *4 (Tex. Mar. 17, 2017) ("In Houston Belt and Miranda, we held that sovereign immunity concerns jurisdiction and therefore 'is properly asserted in a plea to the jurisdiction.'"). "Where, as here, evidence is presented with a plea to the jurisdiction, the court reviews the relevant evidence and may rule on the plea as a matter of law if the evidence does not raise a fact issue on the jurisdictional question, a standard that generally mirrors the summary-judgment standard." Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex. 2016) (citing Miranda, 133 S.W.3d at 227-28). "Appellate courts reviewing a challenge to a trial court's subject matter jurisdiction review the trial court's ruling de novo." Miranda, 133 S.W.3d at 228. "When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant, " and we "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id.


         Under the Texas Constitution, "[n]o person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made." Tex. Const. art. I, § 17(a). Governmental immunity does not bar a takings claim "even though the judgment would require the government to pay money for property previously taken." City of El Paso v. Heinrich, 284 S.W.3d 366, 376 (Tex. 2009); see Kerr, 499 S.W.3d at 799 ("Sovereign immunity does not shield the government from liability for compensation under the takings clause."). To state a valid takings claim, a plaintiff must allege: (1) intentional, affirmative government conduct; (2) that results in property being taken; (3) for public use. See Kerr, 499 S.W.3d at 799; Guadalupe Cty. v. Woodlake Partners, Inc., No. 04-16-00253-CV, 2017 WL 1337650, at *3 (Tex. App.-San Antonio Apr. 12, 2017, no pet. h.) (mem. op.). The governmental entity must intend to take the property or must be substantially certain that the taking will occur. See Kerr, 499 S.W.3d at 799. Furthermore, the governmental entity must intend to take specific property-"in order to form the requisite intent, the government ordinarily knows which property it is taking." Id. at 800.

         Here, the City argues that the Brainards have presented no evidence that the City committed an affirmative act that caused the alleged flooding. According to the City, "the only affirmative act taken by the City of Rollingwood was approval of the Preheims' construction, which does not rise to the level of an intentional taking." We disagree. The Brainards presented evidence that the City itself, and ...

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