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Houghton v. City of Cisco

Court of Appeals of Texas, Eleventh District

July 11, 2019

LLOYD HOUGHTON, VICKI JOHNSON, AND MARK A. SMITH, Appellants
v.
CITY OF CISCO, TEXAS, Appellee

          On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. CV1644276.

          Panel consists of: Stretcher, J., Wright, S.C.J., [1] and Dauphinot, S.J. [2]

          MEMORANDUM OPINION

          Keith Stretcher Justice.

         This case involves an appeal from the trial court's grant of the City of Cisco's (the City) plea to the jurisdiction. In three issues, Appellants, individuals who leased property on the shores of Lake Cisco, argue that the trial court erred in granting the City's plea to the jurisdiction because (1) Appellants properly pleaded a takings claim against the City, (2) Appellants properly pleaded a waiver of the City's immunity under the Texas Tort Claims Act (the TTCA), and (3) even if the trial court properly sustained the City's plea, the trial court erred in refusing to grant Appellants an opportunity to amend their petition. Because we hold that Appellants properly pleaded a takings claim, we affirm in part and reverse and remand in part.

         Background Facts

         According to Appellants' second amended petition, Appellants-Lloyd Houghton, Vicki Johnson, and Mark A. Smith-leased property from Appellee, the City, on the shores of Lake Cisco (the Lake). The City owns the Lake as well as the Williamson Dam, which the City uses to control the water level of the Lake. In May 2016, Appellants' properties flooded, resulting in substantial real and personal property damage.

         Appellants brought causes of action against the City for the following: (1) constitutional taking/inverse condemnation; (2) failure to repair or remedy; (3) breach of contract; (4) trespass to land; (5) trespass to chattels; (6) private nuisance; and (7) negligence under the TTCA. Appellants claimed that the flooding was the result of the City's intentional pumping of water into the Lake, retention of water within the Lake, maintenance and usage of the Williamson Dam, and operation of the Lake as a public amusement. Appellants alleged that the City pumped water into the Lake despite being on notice of its rising water levels due to rain. Appellants also alleged that the Lake's rising water level prompted the City to issue an evacuation order to Appellants. Nonetheless, the City allegedly continued to pump water into the Lake and did not open the sluice gates on the Williamson Dam. Appellants alleged that the City continued to pump water into the Lake out of a desire to sell excess water to other cities and in order to keep the Lake open for recreation from which the City collected access fees.

         Appellants also contended that the City knew of the likelihood and substantial risk of harm to Appellants' property from pumping and retaining excess water in the Lake because the City had previously faced an injunction obtained by a railroad company whose roadbed was damaged by backwater from the Lake. Appellants also pointed to the evacuation order as proof of knowledge.

         In response, the City filed a plea to the jurisdiction asserting that Appellants' claims were barred by governmental immunity. Specifically, the City argued that (1) Appellants' claims for failure to repair/remedy, breach of contract/lease agreement, trespass to land, trespass to chattels, and private nuisance were barred because Appellants failed to plead a basis for waiver of immunity; (2) Appellants' claim for inverse condemnation was barred because Appellants failed to, and could not, plead facts sufficient to prove a taking; and (3) the limited waiver under the TTCA does not apply because a failure to use motor-driven equipment (the spillway/sluice gates) does not constitute an operation of motor-driven equipment as required under the waiver exception. The City also argued that, at best, Appellants may have demonstrated that the City was negligent in failing to maintain the sluice gates but stressed that inaction or negligent conduct does not give rise to a takings claim as a matter of law. The City argued that Appellants could not show that the City acted intentionally or knew that its specific actions would damage Appellants' specific property.

         Following a hearing on the City's plea to the jurisdiction, the trial court granted the City's plea and dismissed Appellants' causes of action. This appeal followed.

         Analysis

         In three issues on appeal, Appellants argue that the trial court erred in granting the City's plea to the jurisdiction because (1) Appellants properly alleged a takings claim against the City, thereby affirmatively demonstrating the trial court's subject-matter jurisdiction; (2) Appellants sufficiently alleged a waiver of the City's sovereign immunity under the TTCA; and (3) even if the trial court properly sustained the City's plea to the jurisdiction, the trial court should have granted Appellants an opportunity to amend their petition to cure any defects. Conversely, the City argues that the trial court properly granted its plea to the jurisdiction. The City insists that (1) Appellants failed to plead facts which, if accepted as true, would support a takings claim; (2) Appellants failed to plead facts which, if accepted as true, would fall within a waiver of the City's governmental immunity under the TTCA; and (3) Appellants had already been granted an opportunity to replead and, even if afforded an opportunity to replead, could not plead facts sufficient to support a waiver claim. Because we find that Appellants have properly pled a takings claim, we sustain Appellants' first issue and reverse in part. We affirm the trial court's judgment with respect to Appellants' second and third issues.

         I. Plea to the Jurisdiction

         Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction unless the State expressly consents to suit. Tex. Dep't of Transp. v. Jones,8 S.W.3d 636, 638 (Tex. 1999). "Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts." Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Because governmental immunity implicates the trial court's subject-matter jurisdiction, it is ...


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