Opinion issued March 7, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00014-CV ——————————— HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS, Appellants V. EDWARD A. AND NORMA KERR, PATTIE ACKERMNANN AND LEDA KROLCZYK, DAVID T. ADAMS, CLIFFORD AHLHORN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MARGRETE AHLHORN, THE ESTATE OF MARGRETE AHLHORN, THOMAS E. ALVAREZ, B.J. AND CLAUDENCE ANELLO, PAUL C. ARDOIN, JR., RONALD L. AND WENDY M. BARR, DONALD H. AND CYNTHIA L. BECK, OKIE BECK, STEVE AND LINDA BEVERLIN, DOUGLAS J. AND NANCY K. BLACK, LEROY AND MARY BOLLOM, STANLEY AND CATHY BORDOVSKY, LORI KRAFT BORQUE, WENDELL W. BREAZEALE, MICHAEL R. AND DIANA L. BRINKMEYER, MARK A. AND LEAH BRUMLOW, MICHAEL AND JUDY BRUNER, MICHAEL AND CYNTHIA BUCHANAN, JOSEPH AND FAYE BUFFALO, WILLIAM AND SHIRLEY CANNAVINO, RUSSELL D. AND LYNN CARLSON, JAMES J. AND CONNIE J. CASSENS, JAMES J. CHRISTY, CARL W. CLARK, SUSAN CLARK, MICHAEL AND SUZANNE CLAXTON, RONNIE D. AND JUDY A. COCKMAN, LARRY AND MARY CRAWFORD, ANTONIO AND NILDA CUELLAR, JOLIE DANIEL, WILLIAM P. AND SUE E. DAY, SUSAN JANE DEESLIE, DUANE E. DEGNER, DAVID DICK, JACKIE L. AND LILLIAN L. DILLON, KEVIN AND ELIZABETH DOMAIN, MARVIN J. AND PAMELA A. DRODDY, JOHN AND BETTY ELLIS, KEITH AND HOLLY ENGLE, NICKOLAS AND HUGHLEENE S. ERDELY, PATSY A. EUBANKS, MIKE EVANS, FAIRBANKS ANIMAL CLINIC INC., DOUGLAS L. AND DEBRA G. FARES, DONNA FARRAR-WILSON FORMERLY KNOWN AS DONNA FARRAR, BRANDON FOKKEN, MARLOWE A. AND MARY M. FOKKEN, DAVID M. AND DEBBIE FOYT, RICHARD AND TERRI FRITSCHE, SHIRLEY GALIK, PHYLLIS J. GAMBLE, ARMANDO AND LUCIA GARCIA, ROBERT D. AND JOVITA GARCIA, STEPHEN B. AND BRENDA GARNEY, ARTHUR AND KATHERINE PINTSCH JR. AS EXECUTORS OF THE ESTATE OF NORMAN K. AND LYNDA GARRISON, PAUL D. GERKE, STEPHANIE K. GERKE – YOUNG, TIMOTHY K. AND DEBORAH K. GLAVIN, HORACE DEAN AND JANICE M. GOLDEN, MICHAEL AND JENNIFER L. GONZALEZ, RAY A. AND RITA R. GONZALES, MARK AND JENNIFER GOODRUM, MIKE AND BRENDA GORSKI, JERRY AND LINDA GRAGG, ROGER D. AND DEBORAH GREER, LULENE GREGG, LANCE W. GREMILLION, SHARON GREMILLION, JOE EMENS GUZMAN, LAMAR AND MARY ANN HAAS, LEO H. AND CATHERINE HAAS, JR., DAVID AND LISA HALL, JAMES L. HALL, MICHAEL D. AND KIMBERLY Y. HANEY, LYNN HANSEN FORMERLY KNOWN AS LYNN HANSON, TERRY D. HARGRAVE, LONNIE AND JO A. HARRISON, RALEIGH L. AND CHARLOTTE HARVEY, JANICE L. HAYS, RICHARD LLOYD HAZEL, RICHARD A. AND BETTY J. HEATHCOTT, ALICE K. HEDSTROM, DARLA HENRY, STEVE HENRY, STEVEN J. AND MARIE A. HENRY, CAROL HILMERS, LONNIE E. AND CHERYL A. HOOD, DANIEL AND ALISON HORSTMAN, ROBERT M. HUBBARD, GARY AND BECKY HUDDLESTON, LYNN M. HUMMEL FORMERLY KNOWN AS LYNN MARIE BREAZEALE, CHERYL JACKS FORMERLY KNOWN AS CHERYL SMITH, WANDA L. JACKSON, CATHERINE L. JOHNSON, INDIVIDUALLY AND AS 2 ADMINISTRATRIX OF THE ESTATE OF GEORGE E. JOHNSON, DANIEL AND PAMELLA JONES, MAX AND CONNIE JONES, MICKEY W. AND VIRGINIA KEELING, ALOIS AND KAREN KEILERS, TITUS L. AND DONNA HOFFMAN KELLEY, CHARLOTTE SUSAN KERR, DAVID B. AND DENISE M. KIRBY, RAMANATH AND JAYANTHI KONGOVI, CORINE L. KONVICKA, LILLIAN M. KROLCZYK, PAUL AND JANIS KUBECZKA, BERTHOLD G. AND MICHELE LAKADOSCH, LILLIAN M. AND GEORGE W. LANG II, WALTER D. LATHAM, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LINDA D. LATHAM, JOHN S. AND NANCY L. LEATHERMAN, VERNON R. AND JO ANN LEHDE, BARTLEY A. AND KARLA K. LEWIS, NORMAN J. AND MARTHA A. LOCASCIO, LOWELL R. AND JUDITH A. LOCKE, CAROL HOHL AS ADMINISTRATOR OF THE ESTATE OF HERMINE LUECKE, THE ESTATE OF HERMINE LUECKE C/O CAROL HOHLE, ADMINISTRATRIX, WAYNE D. AND ALLYSON LYNN, ELIZABETH MALEK, DON P. MANIHA, FRANK J. AND MADYLENE MARINO, JASON AND RENE R. MASS, BARBARA J. MATTHEWS, JOE G. MCCOURT, LEE G. AND MARIAN MCDANIEL, PATRICK J. AND SUE MCDERMOTT, THOMAS F. AND DENISE C. MCNEILLY, E.L. AND PEGGY L. MCSHAN, JR., ANTONIO AND GUADALUPE MEDRANO, JOE AND GLORIA MEJIA, DANIEL AND DORRAINE MELCHER, BENNIE AND LINDA MELESKI, ROBERT L. MIDKIFF, J.T. MILLS, ADOLPH AND THERESA MOCK, DAMASO C. AND EDITH MOJICA, CHARLES A. AND LIH-SHIANG C. MONTEITH, DAVID A. AND SHIRLEY MONTGOMERY, JOE AND DENISE MONTGOMERY, JOHN T. AND KITTY MONTGOMERY, DAVID N. MOORE, AGNES A. MURPHREE, LOI VAN AND NHAN K. NGUYEN, BRAD P. NIXON, DAVID J. AND DONNIE B. NOLL, DAVID A. AND JENNIFER NOWAK, FRED A. AND CAROLYN M. GARTMAN O’BANNION, KENNETH E. AND CECILIA O’BANNION, MICHAEL W. AND DIANE O’CONNOR, JANICE O’KEEFFE, LOUIS AND JOANNA ORLANDO, PETER B. AND PATRICIA PEDERSEN, RALPH D. AND PATRICIA A. PEREZ, CLARENCE AND JONCIA PERRY, JOHN AND RUTH PETTIJOHN, GERARD PICCOLO, KATHERINE PICCOLO, MICHAEL AND VIRGINIA PLOCH, LEONARD AND PATTIE L. PYLE, PAUL S. QUIN, 3 AYOUB AND FARIDEH ABDOLHAMID RAZMANDI, MEHDI AND MARY RUTH RAZMANDI, BARBARA J. READY, WELDON AND NORMA REED, MARC S. AND CAROL RENDALL, JOHN L. AND GLORIA A. RILEY, LARRY AND JANIE ROCKETT, JOE E. AND JULIET RODRIGUEZ, MARIO A. AND CONSUELO RODRIGUEZ, ROBERT L. AND BARBARA M. ROHDE, RICHARD ROHN, STEPHANIE RUSH, RANDY AND CINDY M. SARTAIN, JAMES E. AND NANCY C. SAVOIE, CHRIS SCHILLING, JAMES L. AND VICTORIA R. SHERWIN, MAY L. SIMPSON, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ERNEST L. SIMPSON, CRAIG D. AND MARY SLOVAK, CHRISTOPHER A. AND DOROTHY ANNETTE SMALL, SHARYN M. SMITH, SHELLY D. SMITH, DANNY J. AND CHARLOTTE J. SRALLA, DANA G. AND MARGARET A. STREBECK, JAMES AND DONNA TESSMER, KATHLEEN THERIALT, DAVID M. THOMPSON, DAVID AND MARCIA TIJERINA, ZACHARY W. TOLSON, CARL AND PATTI TORREGROSSA, BOBBY L. AND JANET UNDERWOOD, BETTY VARNER, ALBERT AND MARGARET VASQUEZ, CHARLES L. AND JANET C. VAVRICKA, VICKI VIDES, DAVID R. AND SHIRLEY J. WAGNER, LYDIA A. WALDEN, JERRY AND SUE WALTON, LARRY J. AND NORMA M. WASHINGTON, BRENT WESTON AND KAREN RENEE MCDOWELL, NED E. AND CONNIE WHITTON, BRIAN AND CAROLYN L. WILLIAMS, THOMAS P. AND DOROTHY W. WILLIAMSON, DANE WILSON, ETHEL MAY WILSON, LINDA WILSON RUMFOLO FORMERLY LINDA WILSON, ANDREA R. WINTER, MARIA T. DE LA FUENTE AND JUDITH A. WOOD, LLOYD C. AND SHELIA D. WOOD, WENDELL R. AND SHEILA WYBORNY, GARRY L. AND MYRIAM L. ZALESKY, AND DARRELL D. AND ANGELA R. ZWINK, Appellees
On Appeal from County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 837329
4 OPINION
This is an inverse condemnation and nuisance case brought by appellees
Edward A. and Norma Kerr, and over 200 other parties (the Kerrs or appellees)
whose properties were damaged by flooding in the White Oak Bayou watershed. 1
In four issues, appellants, Harris County Flood Control District (HCFCD) and
Harris County, Texas (Harris County; collectively, appellants) contend that in its
denial of their combined plea to the jurisdiction and motion for summary judgment
upon its mistaken belief that the law of the case compelled denial of the plea, the
trial court erred. Appellants further contend that the appellees failed to raise a
question of fact with regard to each of the three elements of their takings claim,
thus defeating both their takings and nuisance claims. We affirm the trial court’s
order denying appellants’ plea to the jurisdiction.
Background
Appellees own, or formerly owned, real property in several subdivisions
located in the upper White Oak Bayou watershed. Most of these properties are
homes built in the 1970s and early 1980s. Although most had never previously
flooded, appellees’ properties flooded one or more times over a five-year period as
a result of three severe storms: (1) Tropical Storm Frances in 1998, (2) Tropical
1 Originally appealed to the Fourteenth Court of Appeals, this case was transferred to this Court by order of the Texas Supreme Court.
5 Storm Allison in 2001, and (3) and an unnamed storm in 2002. Appellees contend
that the cause of the flooding was unmitigated upstream development, coupled
with appellants’ flood-control measures in the White Oak Bayou watershed during
the years before these storms. 2
A. Brief Overview of White Oak Bayou Flood-Control Measures
White Oak Bayou is a major tributary in the Buffalo Bayou system that
drains the City of Houston and the majority of Harris County, Texas. In the late
1950s and early 1960s the United States Army Corps of Engineers began planning
and designing a flood-control project for the lower, more heavily populated, 10.7
miles of White Oak Bayou. The project, which entailed enlarging and lining the
bayou with concrete, was not completed until the mid-1970s.
Due of severe urban flooding conditions in the remaining upstream portions
of the watershed, the Corps, beginning in the early 1970s, investigated the
2 Appellees’ summary judgment motion argued that the flooding was also caused by appellants’ construction of a transition control structure to which they refer as a “dam.” Appellees, however, do not argue this point on appeal and because the Court determines that appellees presented sufficient evidence to raise a question of fact with respect to their other theory of the case (i.e., that the flooding was caused by unmitigated upstream development, coupled with appellants’ flood-control measures), it is not necessary for the panel to address this additional theory. We note, however, that the dissenting opinion reaches this issue and concludes that appellees failed to raise a question of fact with respect to whether HCFCD acted with the requisite intent when it constructed the “dam.” The dissent reaches this conclusion by dismissing the opinions expressed by appellees’ expert, Dr. Mays, as conclusory (i.e., lacking a factual basis). On the contrary, the facts supporting Dr. Mays’s opinions on this subject are set forth in detail in his January 2001 and June 2009 reports. 6 feasibility of extending the project to the upper portion of the watershed. In 1976,
the Corps produced the “Interim Report on Upper White Oak Bayou summarizing
its findings as to the watershed’s recurring flooding problems and proposed a
mitigation plan. This report was coordinated with the Harris County
Commissioners Court (HCCC) and HCFCD.
The 1976 Corps Report confirmed the upper watershed to be prone to
flooding primarily due to “the lack of adequate [bayou] capacity to carry excessive
rainfall runoff away from the area without causing flooding.” Noting that the
appellants had approved new development without on-site mitigation and would
continue to do so, the report acknowledged these problems were further
compounded by inadequate storm sewers and street drainage in the neighborhoods
surrounding the upper bayou and concluded that continued upstream development
would substantially increase flooding in the upper bayou watershed. Appellants
concurred with the Corps’ findings and its recommendation for a major flood-
control project and agreed to act as the local sponsor of such a project. Thereafter,
federal funding for this project was pursued but was slow to materialize, and in
November 1980, Harris County, acting through the HCCC, authorized HCFCD to
implement an interim storm-water management policy that, inter alia, required all
new developments in the upper bayou watershed to provide on-site storm-water
detention basins. By 1983, HCFCD had completed its own “Flood Hazard Study”
7 in which it analyzed the effects of urbanization and defined the limits of the 100-
year floodplain in Harris County, Texas.
In response to the Corps’ delay in implementing its flood-control plan for
upper White Oak Bayou, Harris County commissioned Pate Engineers to develop
its own plan to eliminate the existing 100-year floodplain along the bayou while
also providing sufficient capacity to handle additional water from future
development throughout the watershed. In 1984, Harris County, acting through the
HCCC, formally approved the “White Oak Bayou Regional Flood Control Project”
and authorized HCFCD to implement the plan (the Pate Plan). The Pate Plan was
based in significant part upon HCFCD’s 1983 Flood Hazard Study, as well as
FEMA floodplain maps that were also based on the 1983 study. 3
The purpose of the Pate Plan was to eliminate flooding along the upper
bayou, including in the vicinity of appellees’ properties, for floods up to and
including a 100-year event, by expanding the bayou’s capacity to handle storm
water runoff produced from existing and expected future development in the upper
White Oak Bayou watershed. Because of the uncertainty of future federal funding
and the current unavailability of such funding, the Pate Plan was to be funded
solely through local taxes and “impact fees.” Specifically, small developments
3 Beginning in 1985, FEMA began issuing a series of new floodplain maps based on the findings of the 1983 Flood Hazard Study covering the upper portion of the White Oak Bayou watershed. A comparison of the FEMA floodplain maps reveals that the bayou’s floodplain has significantly expanded since 1976. 8 (i.e., of less than ten acres) that opted not to construct onsite detention basins were
to pay $3,000 per acre “impact fees” to fund the construction of regional detention
basins.
The Pate Plan was multi-phased, with the initial phase providing the
necessary mitigation to prevent flooding of the developed portion of the upper
bayou watershed by construction of channel improvements, including along
appellees’ subdivisions, and the acquisition of regional detention sites. The plan,
once fully implemented, was intended to “maintain 100-year flood protection on
White Oak Bayou as future development occur[ed].”
In 1988, HCFCD informed the Corps that appellants were no longer
interested in the federal flood-control project because they had developed their
own plan that would be implemented quickly with local funds.
When flooding occurred along upper White Oak Bayou in 1989, however,
homeowners contacted HCFCD concerned that appellants had yet to construct any
of the channel improvements called for under the Pate Plan. In response to one
homeowner’s letter, HCFCD’s then-Director, James Green, acknowledged that
HCFCD was “very aware of the house flooding potential in Creekside Estates
South and many other subdivisions along White Oak Bayou.” Green also
acknowledged that they were in the process of implementing the Pate Plan that
9 would protect the homeowner’s subdivision from 100-year flood events and cited
on-going condemnation proceedings as the reason for the delay in implementation.
According to appellants, it was during this time that HCFCD discovered that
the engineering analysis used in developing the Pate Plan was either inadequate or
inaccurate and, in 1990, the engineering firm Klotz Associates (Klotz), was
commissioned for a new multi-phase study of existing White Oak Bayou
watershed conditions. Tasked with compiling the best information, Klotz
evaluated the base models and found the information in many areas to significantly
differ from the FEMA floodplain maps that were based upon the 1983 Flood
Hazard Study. After including new upstream development, Klotz determined that
the flood flows and flood levels along the bayou were much higher than the Pate
Plan showed4.
Based upon updated models and watershed information developed during
the first phase of the study, Klotz prepared an engineering report (Klotz Plan),
which appellants characterize as a revised version of the Pate Plan. Klotz’s stated
goal with respect to their proposed recommendations was “to find that combination
of improvements which provided the most drainage value for the funds expended.”
According to appellants, they accepted the parts of the Klotz Plan that could
be implemented more quickly than the original Pate Plan (i.e., constructing
4 The Pate Plan was also based on the 1983 Flood Hazard Study. 10 detention basins and earthen channel improvements to the portion of the bayou
directly downstream from appellees’ homes). These proposed channel
improvements extended from Cole Creek up to and past North Houston-Rosslyn
Road, where a transition control structure designed to maintain the status quo with
respect to the flood levels upstream of the structure (where appellees’ homes were
located) would be installed.
The Pate Plan, designed to protect against 100-year flood events, called for
construction of concrete-lined channel improvements for a sizable portion of upper
White Oak Bayou, including near appellees’ subdivisions. The Klotz Plan,
designed to provide protection from ten-year flood events, recommended
shallower, earthen channel improvements that stopped just downstream from
appellees’ properties. Thus, the portions of the Klotz Plan adopted by appellants
not only protected fewer property owners but did so from less-severe flooding
events. HCFCD claims that it relied upon the Klotz engineers’ certification that
the revised plan complied with regulations and would not increase downstream
runoff.
B. The Lawsuit
Appellees originally brought takings and nuisance claims in the 133rd
District Court of Harris County against the Texas Department of Transportation
(TxDOT) and several municipal utility districts, engineering firms, and real-estate
11 developers, as well as appellants for damages arising out of the flooding of their
properties during Tropical Storm Frances in 1998. See Kerr v. Tex. Dep’t of
Transp., 45 S.W.3d 248, 249 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (Kerr
I). The trial court granted TxDOT’s plea to the jurisdiction based on sovereign
immunity, 5 appellees took an interlocutory appeal, and this Court reversed and
remanded because appellees’ pleadings sufficiently alleged the elements of a
taking by TxDOT in its road design and construction. Id. at 252.
On remand, appellees settled with all of the defendants except for appellants.
Appellants subsequently filed, and the trial court granted, motions for summary
judgment based on sovereign immunity. The Kerrs appealed, and this Court issued
an opinion reversing the summary judgment. See Kerr v. Harris Cnty., No. 01-02-
00158-CV, 2003 WL 22053653 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(mem. op.) (Kerr II), opinion withdrawn and superseded on rehearing, 177 S.W.3d
5 Sovereign immunity protects the State, as well as its agencies and officials, from lawsuits for damages and from liability. Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d 320, 323–24 (Tex. 2006) (sovereign immune from both liability and suit). A related doctrine—referred to as governmental immunity—similarly protects political subdivisions of the state, including cities. See id. at 324; City of Houston v. Williams, 353 S.W.3d 128, 134 n.5 (Tex. 2011) (noting distinction between sovereign and governmental immunity); see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (noting that courts often use governmental immunity and sovereign immunity interchangeably although doctrines are conceptually different). For ease of reference, we will use the term “sovereign immunity” to reference both sovereign immunity and governmental immunity.
12 290 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In Kerr II, appellants made
some of the same arguments they make here (i.e., that they had conclusively
established that they did not “intend” to take or damage appellees’ property and
appellees had failed to raise a question of fact on this issue). This Court rejected
that argument and held that appellees had presented sufficient evidence to raise “a
clear question of fact regarding whether the actions of [appellants], in not
completing the Pate plan, but in choosing to implement the Klotz plan instead,
created a condition whereby the flooding of the plaintiffs’ homes was substantially
certain to occur.” Kerr II, however, was subsequently withdrawn on rehearing,
and was superseded by a new opinion that reversed on jurisdictional grounds
because the suit had been brought in a district court instead of a county court at
law. See Kerr v. Harris Cnty., 177 S.W.3d 290, 294–95 (Tex. App.—Houston [1st
Dist.] 2005, no pet.) (Kerr III).
After remand from Kerr II, appellees refiled their suit in the County Court at
Law, where it was consolidated with two other pending takings and nuisance cases
against appellants arising from flooding during Tropical Storm Allison in 2001 and
an unnamed storm in 2002. Appellants filed a combined plea to the jurisdiction
and motion for summary judgment arguing that the doctrine of sovereign immunity
deprived the court of subject-matter jurisdiction. The trial court denied appellants’
combined plea in a written order declaring that he was compelled to do so by “Kerr
13 v. Tex. Dep’t. Of Transp., Kerr II,” which the court believed to be “the law of the
case until the Court of appeals either artfully or directly reverses itself, THUS it is
binding upon this trial court.” This appeal followed.
Plea to the Jurisdiction
This Court enjoys a specific grant of appellate jurisdiction over interlocutory
appeals of orders that either grant or deny pleas to the jurisdiction by a
governmental unit. See TEX. CIV. PRAC & REM. CODE ANN. § 51.014(a)(8) (West
Supp. 2012); Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex.
2004) (“[A]n interlocutory appeal may be taken from a refusal to dismiss for want
of jurisdiction whether the jurisdictional argument is presented by plea to the
jurisdiction or some other vehicle, such as a motion for summary judgment.”). A
plea to the jurisdiction challenges the court’s subject-matter jurisdiction. Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). There are two types of
pleas to the jurisdiction: (1) challenges to the pleadings (i.e., whether the pleader
has alleged facts that affirmatively demonstrate the trial court’s subject-matter
jurisdiction) and (2) challenges to the existence of jurisdictional facts. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When a plea to the jurisdiction challenges the pleadings, we determine
whether the alleged facts as plead affirmatively demonstrate the court’s jurisdiction
to hear the case. Id. Our de novo review of such challenges look to the pleaders’
14 intent and construe the pleadings in favor of the plaintiffs. Id. If the pleadings
lack sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, but
do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one
of pleading sufficiency and the plaintiffs should have the opportunity to amend.
Id. at 226–27.
On the other hand, jurisdictional challenges accompanied by evidence are
decided under a traditional summary-judgment standard in the trial court and
reviewed de novo on appeal. See id. at 227–28; see also TEX. R. CIV. P. 166a(c).
Thus, the burden is on the government to adduce evidence establishing that the
trial court lacks jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228;
Porretto v. Patterson, 251 S.W.3d 701, 711 (Tex. App.—Houston [1st. Dist. 2007,
no pet.). Thereafter, the burden shifts to the plaintiff to demonstrate that a disputed
issue of material fact exists regarding the jurisdictional issue. Miranda, 133
S.W.3d at 228; Porretto, 251 S.W.3d at 711. The defendant cannot simply deny
the existence of jurisdictional facts and force the plaintiff to raise a fact issue.
Miranda, 133 S.W.3d at 228; Porretto, 251 S.W.3d at 711.
Under these circumstances, we consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues raised, as the trial court
is required to do. Miranda, 133 S.W.3d at 227. Where the jurisdictional challenge
implicates the merits of the case and the plea to the jurisdiction includes evidence,
15 the trial court reviews the relevant evidence to determine if there is a fact issue. Id.
If a fact question concerning jurisdiction is raised by the evidence, the trial court
cannot grant the plea to the jurisdiction before that fact issue is resolved by the fact
finder. Id. at 227–28. If the relevant evidence is undisputed or does not raise a
fact issue on the jurisdictional question, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. at 228.
In reviewing a plea to the jurisdiction in which the pleading requirement has
been met and evidence has been submitted in support of the plea that implicates the
merits of the case, we take as true all evidence favorable to the nonmovant. Id.
Every reasonable inference is made and any doubts are resolved in favor of the
nonmovant. Id.
Discussion
In their combined plea, appellants challenged the existence of jurisdictional
facts supporting all three elements of appellees’ takings claim—intent, causation,
and public use. Appellees responded that the plea was contrary to this Court’s
prior opinion in Kerr II, and that the plea should be denied because there were
material issues of fact with respect to all three elements. As previously noted,
here, the trial court denied the plea “for any and all reasons the Court of Appeals
may find compelling [including,] the law of the case. . . .”
16 A. “Law of the Case”
In their first issue on appeal, appellants contend that the trial court
erroneously denied their plea to the jurisdiction and motion for summary judgment
based upon the court’s mistaken belief that it was bound to do so by the “law of the
case.”
Under the doctrine of the “law of the case,” a question of law decided on
appeal to a court of last resort governs the case throughout its subsequent stages.
See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The doctrine is based
on public policy and is aimed at putting an end to litigation. Id. The doctrine does
not necessarily apply, however, where the issues or facts presented in the later
appeal are not substantially the same as those addressed in the earlier appeal. Id.
By narrowing the issues in successive stages of the litigation, the doctrine is
intended to achieve uniformity of decision as well as judicial economy and
efficiency. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). The
doctrine applies to trial courts as well as appellate courts, assuming subsequent
appeal of the case. See Briscoe, 102 S.W.3d at 716.
Specifically, here the trial court stated in its order that the numerous motions
pending before it, including appellants’ plea to the jurisdiction and motion for
summary judgment
should be denied for any and all reasons the Court of Appeals may find compelling, and specifically in light of 17 Kerr v. Tex. Dept. of Transp., Kerr II, which though contradictory to Aristotle’s Posterior Analytics in as much as the opinion fiats the presupposition that foreknowledge of possible future flooding is evidence of a forewill to take when a Governmental entity elects to expend its financial resources on other venues rather than proscriptively expending funds on the project at hand (a traditionally exempt exercise of legislative discretion arguably thus the robbery victim may sue for funds spent upon fire prevention and the home fire victim sue for funds spent upon police protection), IT IS, NONETHELESS, the law of the case until the Court of appeals either artfully or directly reverses itself, THUS it is binding upon this trial court.
Contrary to the trial court’s statement, neither Kerr I, which is referred to by the
trial court as Kerr v. Tex. Dep’t of Transp., nor Kerr II is the law of this case. Kerr
I is not binding under the law-of-the-case doctrine because that case involved
different parties and different facts. See Hudson, 711 S.W.2d at 630–31 (stating
that doctrine does not apply if issues or facts are not substantially same or if parties
or pleadings are different). In Kerr I, another defendant who is no longer a party to
this case, TxDOT, filed a plea to the jurisdiction; Harris County was not a party to
that appeal, and none of the factual allegations being raised against Harris County
in this case were asserted in Kerr I.
Likewise, Kerr II is not binding under the law of the case doctrine because
that opinion was withdrawn and superseded by another opinion. See Scanlan v.
Continental Inv. Co., 142 S.W.2d 432, 435 (Tex. Civ. App.—Galveston 1940, writ
dism’d judgm’t cor.) (stating that previous rulings which were withdrawn are not 18 law of the case); cf. Continental Cas. Co. v. Street, 364 S.W.2d 184, 188 (Tex.
1963) (stating that opinions withdrawn by appellate court are no longer binding);
Frizzell v. Cook, 790 S.W.2d 41, 43 (Tex. App.—San Antonio 1990, pet. denied)
(stating that withdrawn opinions have no precedential value). Courts do not
withdraw their opinions and issue new opinions in their place on a whim. Such
actions are taken with deliberate care and concern for the jurisprudence of the
State. Appellees have not offered—and we cannot conceive—of any reason why
we should be bound to follow an opinion under the law-of-the-case doctrine that
our learned colleagues on this Court have effectively instructed us to disregard by
their decision to withdraw that opinion and substitute another in its place.
Accordingly, we hold that the trial court erred when it denied appellants’ combined
plea to the jurisdiction and motion for summary judgment based upon its mistaken
belief that it was compelled to do so by the law of the case.
We sustain Harris County and HCFCD’s first issue.
B. Appellees’ Takings and Nuisance Claims
In their second, third, and fourth issues, appellants argue that the trial court
erred in denying their combined plea and motion for summary judgment because
they conclusively negated all three elements of appellees’ takings claim and
appellees failed to raise a fact question with respect to any of the elements.
Appellants further contend that because appellees’ nuisance claim is dependent
19 upon their takings claim, the trial court erred in denying their combined plea and
motion for summary judgment on this claim as well.
“No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” TEX. CONST. art. I, §17.
Appellants are immune from any suit unless immunity is waived by statute
or the constitution. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695
(Tex. 2003). Article I, section 17 of the Texas Constitution waives immunity for
takings. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). Thus, if appellees do
not have an actionable takings claim, appellants’ immunity remains intact.
A takings cause of action consists of three elements: (1) an intentional act
by the government under its lawful authority, (2) resulting in a taking of the
plaintiff’s property, and (3) for public use. Holland, 221 S.W.3d at 643. The
premise of Article I, section 17 is that the government should not “‘forc[e] some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.’” Steele v. City of Houston, 603 S.W.2d 786, 789
(Tex. 1980) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563,
1569 (1960)). Whether particular facts give rise to a “taking” of property is a
question of law we review de novo. See City of Austin v. Travis Cnt’y Landfill
Co., 73 S.W.3d 234, 241 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 937 (Tex. 1998).
20 To establish a constitutional taking, a plaintiff must show more than simply
that the governmental entity’s acts themselves were intentional, City of Dallas v.
Jennings, 142 S.W.3d 310, 313 (Tex. 2004), or that the governmental entity was
merely aware of the possibility of damage resulting from its conduct. City of San
Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009). A plaintiff must show that
the governmental entity either knows: (1) that a specific act is causing identifiable
harm; or (2) that the specific property damage is substantially certain to result from
an authorized government action. Jennings, 142 S.W.3d at 314. If the damage is
only an accidental result of the government’s actions, there can be no intent to take
the property, much less for a public use. Id. at 313–14 (discussing close link
between elements of intent and public use and stating that absence of intent
necessarily implies absence of public use).
Because appellees have not invoked any separate statutory or constitutional
waiver of immunity with respect to their nuisance claim, they may sue appellants
only “for a nuisance that rises to the level of a constitutional taking under Article I,
Section 17.” Id. at 312 (holding that city retained immunity from nuisance claim
because plaintiffs did not establish constitutional taking and did not assert waiver
of immunity for nuisance claim). Accordingly, resolution of appellees’ takings
claim is equally dispositive with respect to their nuisance claim.
21 1. Intent and Public Use
Relying primarily upon the affidavit of HCFCD director Michael Talbott,
appellants contend that they disproved the intent element of appellees’ takings
claim. Talbott’s affidavit, which explains the motivation behind and the evolution
of HCFCD’s flood-control policies and decisions, according to appellants, clearly
demonstrates HCFCD’s intent to reduce the risk of flooding in the White Oak
Bayou watershed through the implementation of these policies. Talbott denies that
HCFCD knew that the flooding of appellees’ properties was substantially certain to
result from these policies. Among other things, Talbott testified that HCFCD
relied on the Klotz engineers’ certifications that the Klotz Plan complied with
regulations and would not increase downstream runoff. Citing to City of Keller v.
Wilson, 168 S.W.3d 802, 829 (Tex. 2005), appellants argue that their reliance upon
the Klotz engineers’ certifications negates any suggestion of intent.
Appellees counter that Talbott’s affidavit (1) only applies to HCFCD, not
Harris County, 6 and (2) is insufficient to conclusively establish lack of intent
because the affidavit contains baseless, conclusory opinions that amount to nothing
more than a sworn denial of appellees’ legal claims. See Pollock, 284 S.W.3d at
816; Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). Appellees further contend
that City of Keller is factually distinguishable and appellants’ reliance on this case
6 See discussion infra note 7.
22 is misplaced.
Alternatively, appellees argue that even if appellants met their burden by
adducing evidence negating the element of intent, the trial court’s denial of their
plea was proper because appellees brought forth sufficient evidence to raise a
question of fact with respect to this issue. In particular, appellees argue that there
is a question of fact as to whether appellants knew that their approval of upstream
development without sufficient mitigation, coupled with their adoption of the Klotz
Plan, was substantially certain to lead to the flooding of appellees’ properties.
Appellees cite to the engineering studies that were provided to, or prepared for
appellants (e.g., the 1976 Corps Report, the 1984 Pate study, and the 1990s Klotz
studies), statements by county officials, and the testimony of appellees’ expert as
evidence of appellants’ intent. 7
Appellants argue that, although a required element of a constitutional taking,
public use is merely a tag-along factor closely linked with the element of intent.
Appellants further contend they have conclusively negated the element of public
use for the same reasons they conclusively negated the element of intent.
Jennings, 142 S.W.3d at 313–14.
7 Although appellees cite to the 1989 letter from HCFCD’s Green as indicia of the County’s intent, the letter merely acknowledges the potential for flooding along the upper White Oak Bayou, which is insufficient to demonstrate intent. City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009) (stating awareness of mere possibility of damage insufficient to demonstrate requisite intent for constitutional taking).
23 We conclude that appellees presented evidence sufficient to raise a question
of fact with respect to the elements of intent and public use.8 Appellees presented
numerous of the Corps’ studies and reports, as well as those by engineers hired by
appellants that, appellees contend, demonstrate that appellants knew that their role
vis a vis the watershed (e.g., approval of upstream development without sufficient
mitigation) was substantially certain to result in the flooding of appellees’
properties. Appellees’ flood expert, Dr. Larry Mays, reached the same conclusions
in his 2009 expert report.
Citing to the 1976 Corps Report, appellees argue that appellants were aware
that their approval of upstream development without sufficient mitigation was
substantially certain to flood appellees’ properties as early as 1976. This Report
informed appellants that the flooding in the upper White Oak Bayou watershed
was due primarily to “the lack of adequate [bayou] capacity to carry excessive
8 Harris County and HCFCD rely primarily upon the affidavit of HCFCD director Michael Talbott to disprove intent. The dissenting opinion concludes that because Talbott did not expressly and unequivocally speak to Harris County’s knowledge and intent (as opposed to HCFCD or the collective knowledge and intent of these inter-related entities), the affidavit is insufficient to disprove Harris County’s intent. This view, however, does not give due regard to the collaborative nature of the relationship between Harris County and its flood control district in designing and implementing a flood control plan for the White Oak Bayou watershed. For example, the Pate Plan was the joint flood-control plan of HCFCD and Harris County, it was formally approved by the HCCC, and thus, reflects the knowledge and intent of both entities. Nevertheless, it is not necessary for the Court to decide this issue, because even if Talbott’s affidavit is sufficient to disprove Harris County’s intent, Harris County is still not entitled to relief on this basis because appellees presented evidence sufficient to raise a question of fact on this issue. 24 rainfall runoff away from the area without causing flooding,” and that this caused
the bayou to overflow its banks and flood adjacent properties. The report further
stated these “flooding problems [were] compounded by continuing [upstream]
urbanization which increases and accelerates the runoff from rainfall . . . and
severe localized flooding caused by inadequate storm sewers and street drainage.”
HCFCD’s 1983 Flood Hazard Study confirmed that the floodplain along
upper White Oak Bayou had increased significantly since the 1976 FEMA map
and the 1976 Corps Report. The study’s findings were consistent with the Corps’
predictions that upstream development would necessarily result in an expanded
floodplain and increased flooding along upper White Oak Bayou.
Appellants adopted the Pate Plan the following year. Appellees argue that
the fact that the appellants adopted the Pate Plan to address these flooding
problems is evidence that they knew that upstream urbanization caused increased
runoff and accelerated flooding downstream, and if they did not take action to
provide mitigation that could accommodate past and future upstream development,
it was substantially certain that downstream properties (including appellees) would
flood.
Dr. Mays opined that despite the fact appellants knew that its approval of
upstream development without sufficient mitigation was substantially certain to
flood appellees’ properties as early as 1976 (a fact which was reinforced in 1983),
25 “numerous developments in the upper White Oak Bayou watershed were approved
after 1976 by the County without detention,” citing to appellants’ expert, Melvin
Spinks. After reviewing the Pate Plan, which also stated that increased runoff from
unmitigated development would exceed the runoff capacity of the bayou, Dr. Mays
concluded that appellants knew in 1984 that approving unmitigated development
and not implementing the mitigation measures of the Pate Plan was substantially
certain to result in the flooding of appellees’ homes.
Nevertheless, appellants subsequently chose to implement a scaled-back
version of the Pate Plan—the Klotz Plan—which undeniably provided less
protection to fewer property owners. Citing to City of Keller, the County argues
that it relied on the certification of the Klotz engineers that implementing this
revised, scaled-back version of the Pate Plan, would not increase downstream
runoff, and thus, could not have manifested the requisite intent for a takings claim.
City of Keller, 168 S.W.3d at 829.
City of Keller, however, is factually distinguishable. In City of Keller, three
sets of engineers certified that the enacted flood-control plans would not increase
downstream flooding. 168 S.W.3d at 829. Although the Klotz engineers also
certified that their plan would not increase downstream flooding, unlike the
plaintiffs’ property in City of Keller, appellees’ properties are located upstream
from the channel improvements recommend by Klotz. Thus, the certifications
26 relied upon by the County in this case are irrelevant with respect to whether they
knew that increased flooding on appellees’ property was substantially certain to
occur if they implemented the Klotz Plan. Moreover, in City of Keller, the
plaintiffs’ expert testified that flooding was inevitable, but offered no testimony
that the city knew that flooding was inevitable. Id. Thus, the plaintiffs merely
proved that the city might know, not that it did know that “the plans it approved
were substantially certain to increase flooding on the [plaintiffs’] properties.” Id.
at 830. Here, appellees’ expert, Dr. Mays, opined that flooding was substantially
certain to occur and that Harris County knew that it was, based, in part, upon the
Pate Plan, the 1976 Corps Report, as well as other studies.
The dissenting opinion dismisses Dr. Mays’s opinions on this issue as
conclusory—based in part upon deposition testimony Dr. Mays gave in this case in
2001. Notably, by the time the plea to the jurisdiction and motion for summary
judgment were decided eight years after his deposition was taken, the Doctor’s
opinion on the matter had evolved to incorporate these pleadings into his analysis.
As the dissent acknowledges, Dr. Mays’s June 2009 report supplemented his
January 2001 report and amended his 2007 supplemental report. Contrary to the
dissent’s suggestion, Dr. Mays did not “assume” that onsite detention facilities in
the watershed were inadequate “merely because flooding subsequently occurred,”
as appellants argue. Dr. Mays opined that the upstream development failed to
27 include adequate detention based upon information included in the report of
Melvin Spinks, one of appellants’ experts.
Appellees also argue, inter alia, that Talbott’s own affidavit creates a
question of fact with respect to HCFCD’s knowledge and reveals why the issue of
intent is generally one of fact that cannot be decided as a matter of law in the
present case. In particular, appellees point to the portion of the affidavit in which
Talbott opines that, “what [HCFCD] ‘knows,’ or whatever anyone ‘knows,’ in the
context of planning and implementing complex flood risk reductions projects is a
very qualified concept.” Talbott acknowledges that HCFCD’s knowledge has
“changed significantly over time,” and that “what [HCFCD] ‘knew’ about this
watershed in 1984 and what [HCFCD] knew in the early 1990s or even today . . . is
a function of expanding information and technical capabilities.” Appellees argue
that construing Talbott’s statements about HCFCD’s ever-changing knowledge in
appellees’ favor—as required by our standard of review—reveals that these
statements raise a fact issue about what HCFCD knew about the potential for
flooding and when HCFCD knew it.
Appellants respond that appellees miss the point of Talbott’s statement,
which is to explain that perfect knowledge does not exist regarding the behavior of
storm-water runoff in a watershed and an engineers’ understanding of any
particular watershed is continually changing based upon new technology and
28 observations of actual events. According to appellants, this highlights the
“difficulty in predicting the effects of any one factor and illustrates the risk of
attributing intent and fault with hindsight.” Be that as it may, Talbott’s statements
clearly highlight the factual complexity surrounding this issue and the difficulty of
pinpointing precisely what appellants knew about flooding in the upper watershed
and when they knew it.
While none of this evidence standing alone may be sufficient to raise a
question of fact, when considered together and taken as true, and after resolving
every reasonable inference in appellees’ favor, appellees’ evidence is sufficient to
raise a question of fact with respect to appellants’ intent to take appellees’ property
for a public use. See Miranda, 133 S.W.3d at 227. This is particularly true in the
present case, where we have conflicting expert testimony as to what appellants
actually knew and when they knew it, and, unlike in City of Keller, there are no
expert certifications for the appellants to reply upon to negate intent. 9
9 Appellants’ post-submission letter brief urges our consideration of the El Paso Court of Appeals’ opinion in City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex. App.—El Paso 2011, no pet.) as instructive with respect to the elements of intent and public use. Ramirez held that the plaintiffs failed to state a claim for inverse condemnation because they only alleged that the property damage resulted from “numerous omissions by the city.” Id. at 187. Unlike the plaintiffs in Ramirez, appellees allege that their properties were damaged as a result of affirmative acts taken by appellants (e.g., approval of unmitigated upstream development, implementation of the Klotz plan). Indeed, the present case has more in common with the El Paso Court of Appeals’ subsequent decision in City of El Paso v. Mazie’s, L.P.,---S.W.3d---, 2012 WL 6608509, *8–9 (Tex. App.—El Paso 2012, no pet.) (rejecting city’s argument that pleadings only alleged failure to act, 29 We hold that appellees raised a question of fact with respect to the intent and
public use elements of their takings claim.
2. Causation
Proximate cause is an essential element of a takings case. “[W]ithout
causation, there is no ‘taking.’” Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d
609, 615 (Tex. App.—Waco 2001), aff’d, 151 S.W.3d 546 (Tex. 2004).
Appellants contend that they disproved the causation element of appellees’
takings claim, relying primarily upon the affidavits of three of their experts—
Talbott, Spinks, and Andrew Yung—all of whom addressed the issue of causation.
According to appellants, this evidence demonstrates that the flooding of appellees’
properties was attributable to the severity of the rainfall associated with the three
storm events at issue in this case, as well as the inadequate storm sewers and other
local drainage problems.
Appellees’ evidence on this issue consists primarily of the reports prepared
by their expert, Dr. Mays, and the materials upon which those reports are based. In
his June 2009 report, which supplemented his January 2001 report, and amended
his 2007 supplemental report, Mays explicitly eliminated other possible causes of
the flooding, including appellants’ experts’ claims that the flooding was possibly
concluding, inter alia, that there was question of fact with respect to elements of intent and public use, and affirming trial court’s order denying plea to the jurisdiction). 30 the result of local drainage systems that were unable to handle the unusually high
amounts of rainfall associated with these storms. Dr. Mays also reaffirmed in his
supplemental report that appellants’ approval of unmitigated land development, as
previously discussed, caused the flooding of appellees’ homes in all three storm
events. Notably, the affidavits of Talbott, Spinks, and Yung neither address
Mays’s 2009 report nor do they opine that the unmitigated development
demonstrated by Mays was not a cause of the flooding.
After resolving every reasonable inference in appellees’ favor, we hold that
appellees presented evidence sufficient to raise a question of fact with respect to
this element as well. Having held that appellees raised a question of fact with
respect to all three elements of their takings claim, we further hold that the trial
court did not err in denying appellants’ plea to the jurisdiction with respect to both
their takings and nuisance claims.
Conclusion
We affirm the trial court’s order denying appellants’ plea to the jurisdiction.
Jim Sharp Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, concurring and dissenting. 31