Sloan Creek II, L.L.C. v. Texas Department of Transportation

Opinion

CONCUR; and Opinion Filed August 28, 2015.

S In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-14-01456-CV

SLOAN CREEK II, L.L.C., Appellant V.

NORTH TEXAS TOLLWAY AUTHORITY AND THE STATE OF TEXAS, Appellees

On Appeal from the County Court at Law No. 6 Collin County, Texas

Trial Court Cause No. 006-3356-2008

CONCURRING OPINION

Before Justices Fillmore, Myers, and Evans Opinion by Justice Fillmore I am in complete agreement with the majority’s discussion of the applicable law and with

its determination the trial court properly sustained the objections of the North Texas Tollway Authority (NTTA) and the Texas Department of Transportation (TxDOT) to certain evidence relating to whether those entities had knowledge that specific damage to Sloan Creek II, L.L.C.’s (Sloan Creek II’s) property was substantially certain to result from their roadway improvement project. I write separately because I disagree with the majority’s analysis, in what I view as dicta, that the evidence excluded by the trial court, if considered, constituted no evidence NTTA and TxDOT knew their conduct was substantially certain to result in increased volume and velocity of rainwater discharge onto Sloan Creek II’s land and to cause erosion of the banks of Sloan Creek. I do not believe this Court has authority to issue such an advisory opinion. See Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998);

see also State v. Naylor, Nos. 11-0114, 11-0222, 2015 WL 3852284, at *8 (Tex. June 19, 2015). However, if Sloan Creek II’s evidence is to be considered by the Court, I would conclude it is sufficient to raise an issue of fact as to whether both NTTA and TxDOT knew the erosion of Sloan Creek was “substantially certain to result” from the roadway improvement project. See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). Accordingly, I join only in Parts (I) through (III)(B)(1) of the majority opinion, and I concur in the Court’s judgment.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE

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