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City of Magnolia v. Smedley

Court of Appeals of Texas, Ninth District, Beaumont

May 17, 2018


          Submitted on December 8, 2017

          On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 14-11-12312-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.


          LEANNE JOHNSON Justice

         This matter was remanded to this Court by the Texas Supreme Court. See City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297 (Tex. 2017). The Supreme Court reversed that part of our judgment that dismissed the appeal of City of Magnolia 4A Economic Development Corporation and City of Magnolia 4B Community Development Corporation (the MDCs) for lack of jurisdiction, and the Court remanded the case to this Court for further proceedings. Id. at 302.[1]Accordingly, we address the merits of the MDCs' appeal.

         As we discussed in our earlier opinion, the City of Magnolia (City) and the MDCs, collectively Appellants, were named as defendants along with other parties in a lawsuit filed by David Smedley (Appellee, Smedley, or Plaintiff), wherein Smedley alleged that the defendants caused his property to flood. See City of Magnolia v. Smedley, 533 S.W.3d 1, 4 (Tex. App.-Beaumont 2016). The City and the MDCs filed this interlocutory appeal of two orders entered by the trial court on July 27, 2015, wherein the trial court denied the motion for summary judgment filed by the MDCs. See id. On remand, we confine our discussion to the arguments raised by the MDCs because the substance of this Court's ruling as to the City has not been reversed or remanded.

          Factual Background

         We outlined the underlying facts in our previous opinion. See id. at 4-11. To summarize, David Smedley, a Florida resident, alleges that he owns real property described as Lots 7&8 Block 5, Melton addition, Town of Magnolia, Gamble Dawson Survey A-177, also described in the plat records of Montgomery County, Texas, Vol. 29, pg. 75, with a physical address of 511 Magnolia Blvd., Magnolia, Texas 77354, hereinafter "the Smedley Property." On November 11, 2014, Smedley filed an Original Petition against the City and others, but the MDCs were not named as parties in the Original Petition. In his suit, Smedley alleged that the defendants caused the Smedley Property to flood and retain standing water, causing damages to Smedley and to the building located on the Smedley Property.

         On April 9, 2015, Smedley filed Plaintiff's 1st Amended Petition (Amended Petition) reasserting claims against the City, and adding the MDCs and others as defendants. Smedley alleged in his Amended Petition that

13. 511 Magnolia Blvd. was built in 1901 and was known as the old Dean's Store when the railroad first came to the city of Magnolia. In 2004, Defendant CRJ [sic] Lucky[, ] Inc., constructed a parking lot to the north east of Plaintiff's property. In 2011, the Defendant, City of Magnolia, completed construction on a walk way adjacent to the northern edge of 511 Magnolia Blvd. called the Magnolia Stroll through the direction and instruction of the Defendant 4A Corp. and 4B Corp[.] using the services of the Defendant B&C Constructors, L.P. Prior to this construction, the Plaintiff's property had not been subjected to consistent flooding when it rained.
14. From 1900 to 2004, 511 Magnolia Blvd. drained surface water to the northeast at a slope of 1.2%. In 2004 Defendant CRJ [sic] Lucky, Inc., carried out construction of a parking lot in the area adjacent to where the surface water used to be drained, creating a partial damming effect.
15. In 2011, the City of Magnolia, through the direction and funding by 4A Corp. and 4B Corp. completed the Magnolia Stroll through the use of Defendant B&C Constructors[, ] L.P. The Stroll ran along the northern portion of the Plaintiff's property and its finished construction completed the damming effect initiated by Defendant CJR Lucky[, ] Inc.'s construction of the parking lot in 2004.
16. Subsequent to the completion of the parking lot and the Magnolia Stroll, whenever significant rainfall occurs surface water is impounded in an area between the Plaintiff's property and Defendant CJR Lucky[, ] Inc.'s parking lot. This impoundment of water has caused extensive damage to the Plaintiff's land, to the fixtures and improvements on that land, including a significant degradation of floor elevation in the building, reduction of vertical clearance in the crawlspace below the building, and rot of wood girders, joists and wall studs.
17. Plaintiff discovered the damage done to his property in August of 2013, at which point he sent a certified letter to the Defendant, City of Magnolia, informing them of his claim, which was essentially ignored.
18. The Plaintiff has hired at his own expense professional engineers who have investigated the construction of Defendant CJR Lucky[, ] Inc.'s parking lot and Defendant City of Magnolia's Magnolia Stroll who informed the plaintiff that similar flooding will recur each time there is significant rainfall.

         In the Amended Petition, Smedley also alleged that

24. The occurrence and damage to the property described in this petition is a direct and proximate result of the negligence of Defendant, City of Magnolia, the Defendant 4A Corp., the Defendant 4B Corp., . . . and their agents, servants, and officers in the following particulars: The Defendant, City of Magnolia, with direction and funding through the Defendant 4A Corp. and 4B Corp., and the employment of Defendant B&C Constructors[, ] L.P., through the use of motor driven equipment and negligently altered the slope of the area of and adjacent to the Plaintiff's property during the construction of the "Magnolia Stroll."
28. With the construction of the parking lot and the construction of the Magnolia City Stroll, the Defendants City of Magnolia and CJR Lucky, Inc., diverted the natural flow of diffuse surface water across the land owned by them, allowing and causing the water to stream onto and over the plaintiff's property. Specifically, the parking lot and the stroll respectively create a damming effect of the previously flowing diffuse surface water causing it to pool on the Plaintiff's property during the rain.

         Smedley sought a judgment for actual and special damages, and he requested that "[t]he defendants be enjoined permanently from allowing diffuse surface water from gathering on the Plaintiff's property, and ordered to return the drainage of the property to be returned [to] its natural position, all as more particularly set out in Paragraph 28 of [the] petition."

         On May 8, 2015, the MDCs filed an Original Answer to the Amended Petition and a Motion to Dismiss and Plea to the Jurisdiction. In the Motion to Dismiss and Plea to the Jurisdiction, the MDCs alleged that Smedley asserted claims against the MDCs for flooding, but Smedley had no basis in fact or law for the three theories of recovery he sought in his petition, which included claims for (1) negligence, (2) Section 11.086(a) of the Texas Water Code, and (3) a taking (inverse condemnation). The MDCs sought a dismissal under Rule 91a of the Texas Rules of Civil Procedure, and argued that the petition failed to state a valid claim against the MDCs because

(1) As a matter of law, the design and construction of the Magnolia Stroll is a discretionary function, exempted from the Tort Claims Act waiver of immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056. Accordingly, the Plaintiff's tort claims are baseless in law.
(2) The Plaintiff has not alleged any facts which, if proved true, would establish a negligence claim for which the Magnolia Dev. Corps.' governmental immunity from suit has been waived by the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). In particular,
(a) no facts are alleged to show that the property damage in question was caused by the negligence of a Magnolia Dev[.] Corp[.] "employee" acting within the scope of his or her employment; and
(b) no facts are alleged to prove that the property damage in question arose from any negligence by either Magnolia Dev[.] Corp[.] in the use or operation of a motor-driven vehicle or motor-driven equipment.

         Accordingly, the Plaintiff's negligence claim is baseless in fact.

(3) Section 11.086 of the Water Code does not waive governmental immunity from suit. Therefore, Plaintiff's Water Code claim against the Magnolia Dev. Corps. is baseless in law.
(4) Plaintiff has not alleged any facts which, if proven true, would tend to prove that either of the Magnolia Dev. Corps. owns or controls any of the property in question, or that such entities have any legal authority to restore the drainage to its natural state before the construction of the Stroll. Therefore, Plaintiff has failed to plead jurisdictional facts sufficient to confer standing on him to sue the Dev. Corps. for injunctive relief under any of the theories alleged.
(5) The Magnolia Dev. Corps. are immune from liability for a judgment for money damages. See TEX. LOC. GOV'T CODE ยงยง 504.007(b), 505.006(b). Therefore, all damage ...

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