Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-15-004220, HONORABLE GISELA D. TRIANA, JUDGE
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice
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.
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.
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.
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."
Brainards sued the City,  bringing causes of action for an
unconstitutional taking (inverse condemnation) and
nuisance. The City filed a plea to the jurisdiction,
which the trial court denied. This appeal followed.
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.
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.
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 ...