COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00061-CV
THE CITY OF KELLER APPELLANT
V.
KIMBERLEE DIANE MEADORS APPELLEES HALL AND A. THOMAS HALL
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
DISSENTING OPINION
The majority opinion, while thorough and meticulously written, strays from
the appropriate standard of review as mandated by the supreme court. Because
this standard of review dictates a different result, I dissent. I. APPLICABLE STANDARD OF REVIEW AND BURDENS OF PROOF
The standard of review and the resultant burdens of proof routinely
prescribe an appeal’s direction and result. See W. Wendell Hall et al., Hall’s
Standards of Review in Texas, 42 St. Mary’s L.J. 3, 13 (2010). Therefore, it is
imperative to carefully state and follow the applicable standard.
We have been granted specific 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. 2013). A plea to the jurisdiction challenges the trial 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) a pleadings challenge, which
examines whether the plaintiff has alleged facts that affirmatively demonstrate
the trial court’s subject-matter jurisdiction, and (2) a challenge to the existence of
jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004).
Here, the City proffered evidence in support of its plea and raised the
absence of any evidence to show the City knew or was substantially certain that
damage would occur as a result of the City’s complained-of actions, rendering
the City’s plea a challenge to the existence of jurisdictional facts. Thus, the City’s
jurisdictional challenge is to be decided under a traditional summary-judgment
standard in the trial court and reviewed de novo on appeal. See City of El Paso
v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); Miranda, 133 S.W.3d at 227–28.
2 See generally Tex. R. Civ. P. 166a(c) (traditional summary-judgment rule
providing movant entitled to judgment as a matter of law if “there is no genuine
issue as to any material fact” regarding “the issues expressly set out in the
motion or in an answer or any other response”).
Once the Halls sufficiently pleaded an inverse-condemnation claim
showing the trial court’s subject-matter jurisdiction, the City had the initial burden
to then adduce evidence establishing that the trial court lacked jurisdiction as a
matter of law. Miranda, 133 S.W.3d at 225–26, 228. The burden then shifted to
the Halls to show that a genuine issue as to any material fact existed regarding
the trial court’s jurisdiction. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113,
116 (Tex. 2010); Miranda, 133 S.W.3d at 228. In other words, the Halls had to
raise a genuine issue as to whether the City “knew (not should have known) that
flooding was substantially certain.” City of Keller v. Wilson, 168 S.W.3d 802, 829
(Tex. 2005). 1 This required them to bring forth evidence of “objective indicia of
intent” showing the City knew harm to the property would result from the City’s
actions. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004). If
1 The majority opinion points out that Wilson was before the supreme court after a jury verdict and, thus, asserts that Wilson is not instructive regarding what the Halls had to demonstrate to avoid the City’s jurisdictional plea. Majority Op. 39. Although the majority opinion correctly points out that the Halls were not required to show that the City knew damage to the Hall’s property would result by a preponderance of the evidence or as a matter of law, the Halls were required to raise a genuine issue of material fact showing that the City knew or was substantially certain that damage to the Halls’ property would result at the time it took the complained-of actions.
3 a genuine issue concerning jurisdiction is raised by the submitted evidence, the
trial court cannot grant the plea to the jurisdiction before that fact issue is
resolved by the fact-finder. Miranda, 133 S.W.3d at 227–28. If the relevant
evidence is undisputed or does not raise a genuine issue as to any material fact
regarding jurisdiction, the trial court rules on the plea to the jurisdiction as a
matter of law. Id. at 228.
II. SCOPE OF REVIEW
A. CONSIDERATION OF THE ENTIRE RECORD
In our de novo review of the trial court’s denial of the City’s plea, we
consider the entire record, as it existed at the time the trial court denied the City’s
plea, in the light most favorable to the Halls and indulge every reasonable
inference and resolve any doubts in favor of the Halls. Wilson, 168 S.W.3d at
824; Hall, supra, at 155. The majority opinion states that it considered evidence
that was excluded by the trial court in its de novo review of the trial court’s denial
of the plea. Majority Op. 44. The City argues on appeal that the trial court
abused its discretion by excluding the evidence.
However, appellate review of a plea to the jurisdiction “generally mirrors
that of a summary judgment under Texas Rule of Civil Procedure 166a(c).”
Miranda, 133 S.W.3d at 228; cf. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000) (recognizing standard for granting
summary judgment under Fed. R. Civ. P. 56 mirrors standard for judgment as a
matter of law under Fed. R. Civ. P. 50(a)). Under a summary-judgment review,
4 an appellate court may not consider stricken portions of the record because such
evidence is not a part of the summary-judgment record. See Trudy’s Tex. Star,
Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no pet.);
Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no
pet.). Therefore, if the trial court correctly struck the City’s evidence or if the
aggrieved party failed to properly challenge the trial court’s ruling on appeal, that
evidence cannot be part of our de-novo review of the trial court’s denial of the
plea to the jurisdiction because such evidence was not part of the record when
the trial court ruled on the City’s plea. See Kaufman v. Islamic Soc’y of Arlington,
291 S.W.3d 130, 137 n.15 (Tex. App.—Fort Worth 2009, pet. denied); cf. Hall,
supra, at 155 (“The appellate court ‘can consider the record only as it existed at
the time summary judgment was entered.’” (emphasis added) (citation omitted)).
Accordingly, this court first must determine whether the trial court abused
its discretion in excluding the City’s evidence as urged by the City on appeal.
See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (“The court of
appeals [in reviewing the trial court’s grant of summary judgment] erred in
considering Elwell’s causation testimony from the bill of exceptions without
having first determined, pursuant to properly assigned error, that the trial court
erred in refusing to admit the testimony and reconsider its decision to exclude
Elwell’s causation opinions.”) If the trial court did abuse its discretion, the
excluded evidence may be considered in a de novo review of the plea to the
jurisdiction. If it did not, an appellate court’s de novo review may not consider the
5 appropriately excluded evidence. In short, application of the standard of review
may be had only after a determination of its scope. Thus, I disagree with the
majority opinion’s assertion that we need not determine whether the trial court
abused its discretion in excluding the evidence. Majority Op. 44–45.
B. EXCLUSION OF THE CITY’S EVIDENCE BASED ON NON-DISCLOSURE
During discovery, a deadline was set by which testifying experts were
required to be disclosed to the opposing party. See Tex. R. Civ. P. 194.2(f),
195.2. The City filed a summary-judgment motion and plea to the jurisdiction to
which it attached several exhibits. The Halls objected to several of the City’s
attached exhibits because they constituted “hearsay” and “expert testimony
offered without designation of expert witness.” Regarding the Halls’ non-
designated-expert objection, the City responded that the exhibits were either “on
file and were served on August 11, 2011,” or “government records or reports [that
are] authenticated or are self-authenticating.” The trial court excluded seventeen
of the City’s exhibits—Exhibits A-8 through A-12, A-14 through A-21, and C
through F—on the basis that they constituted expert testimony offered without
timely prior disclosure. 2 The City asserts that (1) the disclosure requirements do
2 Regarding Exhibit A-13, the trial court checked both “Sustained” and “Overruled” regarding the Halls’ objection that the exhibit constituted inadmissible hearsay. However, the trial court specifically noted that it overruled the Halls’ hearsay objections to “exhibits A-8 through A-21” because those exhibits were “not offered to prove [the] truth of matter asserted, and thus [are] not hearsay.” Therefore, the Halls’ hearsay objections were expressly overruled. The trial court checked neither “Sustained” nor “Overruled” regarding the Halls’ objection to Exhibit A-13 on the basis that it was non-designated expert testimony.
6 not apply to the exhibits at issue and (2) the disputed exhibits were timely
produced to the Halls during discovery.
First, it must be noted that two of the City’s exhibits later excluded by the
trial court—Exhibits A-14 and A-21—were attached to the Halls’ response to the
City’s plea to the jurisdiction. Therefore, these exhibits were a part of the record
before the trial court when it denied the City’s plea to the jurisdiction, and this
court may also consider them.
The remaining fifteen exhibits at issue were all excluded on the basis that
the City had failed to timely disclose as experts the author of each exhibit. 3 A
trial court abuses its broad discretion in excluding evidence if it acts without
reference to any guiding rules or principles. Highland Capital Mgmt., L.P. v.
Ryder Scott Co., 402 S.W.3d 719, 747 (Tex. App.—Houston [1st Dist.] 2012, no
Accordingly, the record—the trial court’s specific notation overruling the hearsay objection and lack of any ruling on the Halls’ objection based on non- designation—reflects that Exhibit A-13 was not excluded. See Tex. R. App. P. 33.1(a); cf. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied) (holding grant of summary judgment implicitly sustained movant’s objections to nonmovants’ summary-judgment evidence “[b]ecause the affidavits were specifically and extensively objected to in [movant’s] written objections and motion to strike the affidavits”). 3 It is unclear whether the Halls argued to the trial court that the sponsoring affiant was an undesignated expert or if the authors of each exhibit had not been properly designated as experts. In their brief on appeal, they stated that the City attempted to introduce “expert opinions and testimony through certain city records of undesignated experts.” But the Halls did not object to the sponsoring affiant’s affidavit in the trial court. Thus, I conclude that the Halls are not arguing for the first time on appeal that the sponsoring affiant was an undesignated expert witness.
7 pet.) (op. on reh’g). A party is entitled to discover information regarding an
opponent’s (1) testifying experts and (2) consulting experts whose mental
impressions or opinions have been reviewed by a testifying expert. Tex. R. Civ.
P. 192.3(e). A party may not introduce into evidence any information that was
not timely disclosed during discovery unless the trial court finds good cause or
lack of unfair surprise. See Tex. R. Civ. P. 193.6; Carbonara v. Tex. Stadium
Group, 244 S.W.3d 651, 657 (Tex. App.—Dallas 2008, no pet.).
The excluded exhibits were documents prepared by either the City or a
federal governmental agency in preparation for the City’s proposed project,
communications between the Halls and the City regarding the project, or
excerpts from federal agencies’ reports regarding historical atmospheric and
storm data in the area of the project. The exhibits were attachments to an
affidavit by the City’s secretary, the official custodian of the City’s public records,
who stated that the attachments were filed with “the City’s offices” and were part
of the City’s public records, regularly made and preserved by the City. These
exhibits cannot be characterized as expert testimony subject to exclusion for a
lack of timely designation. The exhibits were not testimonial, were part of the
City’s regularly-kept public records, and did not contain any expert testimony;
thus, the authors of those exhibits did not have to be timely designated as
experts. See Tex. R. Evid. 803(8); McRae v. Echols, 8 S.W.3d 797, 799–800
(Tex. App.—Waco 2000, pet. denied); Harvey Brown, Daubert Objections to
Public Records: Who Bears the Burden of Proof?, 39 Hous. L. Rev. 413, 414–15
8 (2002). Additionally and as the City argued in the trial court, the majority of the
exhibits that were excluded on the basis that the authors were not timely
designated as experts were specifically provided to the Halls during discovery
and, therefore, the information could not have surprised them. See Tex. R. Civ.
P. 193.6. Because the challenged exhibits were not subject to the expert-
disclosure rule, the trial court abused its discretion by excluding the exhibits on
that basis. Therefore, they should be considered in this court’s review of the plea
to the jurisdiction as the majority opinion does.
The majority opinion states that an additional reason that the excluded
evidence should not be considered (although the majority opinion ultimately does
consider the evidence in its review) is the City’s failure to discuss the relevance
of the evidence or any harm arising from its exclusion. Majority Op. 41–42, 44. I
disagree. In the City’s discussion of what it knew at the time it approved the
project and in arguing that the trial court erred by concluding it had subject-matter
jurisdiction, the City relies on and specifically cites to the excluded evidence. It is
clear that the City recognized and argued the relevance of the excluded evidence
and the resultant harm from its exclusion.
C. APPLICATION TO FAILURE TO EXCLUDE THE CITY’S EVIDENCE ON THE BASIS OF HEARSAY
The Halls assert in a cross-point that the trial court erred by overruling their
objections to the disputed exhibits on the basis of hearsay. The City asserts that
because the Halls seek to alter the trial court’s “judgment or other appealable
9 order,” they were required to file a separate notice of appeal in order to
appropriately raise this argument. Tex. R. App. P. 25.1(c). But the Halls are not
seeking to alter the appealable order denying the City’s plea to the jurisdiction or
to receive more favorable relief than that granted by the trial court; thus, the Halls
were not required to file a separate notice of appeal in order to argue alternate
theories supporting the trial court’s exclusion of the City’s evidence. See Oak
Park Townhouses v. Brazosport Bank of Tex., N.A., 851 S.W.2d 189, 190 (Tex.
1993); R.R. Comm’n v. Coppock, 215 S.W.3d 559, 564 (Tex. App.—Austin 2007,
pet. denied); see also Dandridge v. Williams, 397 U.S. 471, 475 n.6, 90 S. Ct.
1153, 1156 n.6 (1970).
The exhibits were not hearsay evidence, and the Halls made no attack on
their trustworthiness. See Tex. R. Evid. 803(8). The Halls assert that the
exhibits, while public records and reports, contain expert opinions subject to
exclusion. In short, the Halls are merely recasting their expert-designation
argument as a hearsay argument. Neither argument has merit, and the trial court
did not abuse its discretion for failing to exclude the exhibits on the basis of
hearsay. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 164, 167, 109 S. Ct.
439, 447, 448–49 (1988) (interpreting Fed. R. Evid. 803(8) and holding that
public-record hearsay exception includes opinions and other evaluative materials
contained in government reports that set forth “factual findings” unless there are
indications of untrustworthiness). Because the exhibits were improperly
10 excluded, the scope of review of the trial court’s denial of the City’s plea to the
jurisdiction should include the excluded exhibits.
III. GOVERNMENTAL IMMUNITY AND INVERSE-CONDEMNATION CLAIMS
A governmental entity is not entitled to governmental immunity for an
inverse-condemnation claim if (1) the entity intentionally performed certain acts
(2) that resulted in a taking of property (3) for public use. State v. Holland, 221
S.W.3d 639, 643 (Tex. 2007); see also Tex. Const. art. I, § 17. The City claims
that it is entitled to governmental immunity, which divested the trial court of
subject-matter jurisdiction, because there is no evidence that it acted intentionally
in taking the complained-of actions. This required culpable mental state has
been clearly defined by the supreme court:
For purposes of article I, section 17, a governmental entity acts intentionally if it knows either “that a specific act [was] causing identifiable harm” or “that the specific property damage [was] substantially certain to result from” the act. A governmental entity is substantially certain that its actions will damage property only when the damage is “necessarily an incident to, or necessarily a consequential result of the [entity’s] action.” The government’s knowledge must be determined as of the time it acted, not with benefit of hindsight.
City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009) (quoting City of
Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004)).
The City’s intent as defined in Pollock must be established under a
“heightened intent standard.” City of Arlington v. State Farm Lloyds, 145 S.W.3d
165, 168 (Tex. 2004). “‘Substantially certain’ does not mean flooding is possible,
at increased risk, or even more likely than not.” Harris Cnty. Flood Control Dist.
11 v. Kerr, No. 01-11-00014-CV, 2013 WL 842652, at *17 (Tex. App.—Houston [1st
Dist.] Mar. 7, 2013, pet. filed) (citing Pollock, 284 S.W.3d at 821). In evaluating
the objective indicia of the City’s intent, a court must evaluate any evidence
regarding what the City was told about the consequences of the actions before
the City took the complained-of action. Wilson, 168 S.W.3d at 829. Further,
mere negligence that eventually contributes to property damage does not amount
to an unconstitutional taking. Gragg, 151 S.W.3d at 554. Pollock also cautions
that the City’s intent is determined at the time it acted and is not looked at
through the distorting effects of later-acquired knowledge. Pollock, 284 S.W.3d
at 821. With these important review standards in mind, I now turn to the
evidence the trial court was in a position to consider at the time it ruled on the
City’s plea.
IV. THE HALLS’ PLEADINGS
As stated above, the Halls first were required to plead facts affirmatively
showing the trial court’s subject-matter jurisdiction. See Miranda, 133 S.W.3d at
225–26. The Halls alleged that the following actions taken by the City resulted in
flood waters pooling and forming a retaining pond on the Halls’ property:
1. Replacing the bridge located on Keller Smithfield Road, which passed over Big Bear Creek;
2. Raising the road bed of Keller Smithfield Road;
3. Widening the creek bed of Big Bear Creek as it passed under the bridge on Keller Smithfield Road;
12 4. Allowing improvements to surrounding properties, which changed the elevations and drainage characteristic of the properties; and
5. Authorizing development of other properties by other persons.
The Halls asserted that, by replacing the bridge, raising the road, and widening
the creek bed, 4 the City “intended to increase the water flow from its property and
the creek bed through the Hall[s’] [p]roperty” and “knew that the resulting effect
would be to cause rainfall and runoff to pool and flood the [p]roperty while
preventing and saving the [Keller Smithfield] road and the adjacent city park from
flooding.”
In asserting flooding of their property resulted from the City’s actions, they
pointed to a June 18, 2007 “significant rainfall” and “other periods of rainfall,
some substantial, some relatively insubstantial.” The Halls asserted that the
“other periods of rainfall,” resulting in flooding of their property, “demonstrate the
continuing ongoing nature of [the City’s] unlawful taking of the [p]roperty for
public use, and that the [p]roperty continues to be, and will in the future continue
to be, effectively a holding or retention pond for flood waters in Bear Creek.” The
Halls assert that the City had knowledge of the flooding occurring after “other
periods of rainfall,” but “failed and refused, and continues to fail and refuse, to
eliminate the problem.”
4 I will collectively refer to these actions, which were all part of the so-called “Keller Town Center,” as “the project.”
13 It is important to note that, in their petition, they specifically allege the
City’s intent only as it related to the project, i.e., replacing the bridge, raising the
road, and widening the creek bed. In any event, no party asserts that the Halls
did not sufficiently plead an inverse-condemnation claim invoking the trial court’s
subject-matter jurisdiction.
V. THE CITY’S INITIAL BURDEN
Once the Halls sufficiently pleaded an inverse-condemnation claim, the
City bore the burden to adduce evidence through its plea to the jurisdiction
establishing that the trial court lacked jurisdiction as a matter of law. The
supreme court has stated that this burden requires the City to “assert[] and
support[] with evidence that the trial court lacks subject matter jurisdiction.”
Miranda, 133 S.W.3d at 228. In so asserting, the City focused on the intent
element required for inverse-condemnation claims and argued that the evidence
showed it did not have the requisite intent to cause damage to the Halls’ property
“when it took the actions complained of,” namely improvements to Keller
Smithfield Road, replacement of the bridge on Keller Smithfield Road, and raising
Keller Smithfield Road.
The majority opinion fully discusses the City’s evidence submitted in
support of its plea to the jurisdiction. Majority Op. 19–28. I disagree with the
majority opinion’s repeated statements that it “assumes” the City’s proffered
evidence relates to the Halls’ property. Majority Op. 23–25, 28. This evidence
was submitted in support of the City’s plea to the jurisdiction, and there is nothing
14 to indicate that the Halls contended that the maps and charts submitted to FEMA
did not relate to their property or that the indicated portions on those maps and
charts were not relevant to the issue at hand. There is no need to “assume” that
the City’s evidence relates to the Halls’ property; all parties apparently agreed
that it did.
I further disagree with the majority opinion’s implication that because the
City or the “engineering firms retained by the City” submitted the information
upon which FEMA based its flood-elevation conclusions, these conclusions
should not be given the weight they are entitled to. Majority Op. 26–27, 28–29.
Once again, I can find no indication in the record or in the appellate briefs that
the Halls ever asserted that the data submitted to FEMA was anything less than
accurate. 5 Indeed, in the City’s submitted requests for map revisions, it states
that the “effective floodplain information” submitted to FEMA was based on
models prepared by the United States Army Corps of Engineers. Thus, I cannot
agree with the majority opinion’s attempt to discredit the City’s evidence filed in
support of its plea to the jurisdiction.
In any event, the City’s proffered intent evidence in support of its plea to
the jurisdiction established that, at the time it built the bridge, raised the road, and
widened the creek bed in 2004 and 2005, it knew that the elevation levels and,
thus, the likelihood of flooding were not significantly altered from what it was
5 The Halls did argue, however, that the City did not take into account general city development when it requested flood map revisions from FEMA.
15 before the improvements. There is no need to repeat that evidence here
because the majority opinion details this evidence. 6 Majority Op. 19–28.
VI. THE SHIFTED BURDEN ON THE HALLS
A. THE HALLS’ PROFFERED EVIDENCE REGARDING INTENT
Because the City met its burden to establish that it did not know or did not
know with substantial certainty that damage would result to the Halls’ property at
the time the City began the project, the burden shifted to the Halls to raise a
genuine issue as to whether the City knew that flooding was substantially certain
by proffering objective indicia of the City’s intent. Wilson, 168 S.W.3d at 830;
Gragg, 151 S.W.3d at 555.
The Halls offered Kimberlee Hall’s affidavit in which she admitted that the
property lay within the 100-year floodplain of Big Bear Creek when she bought
the property in 1985 and that occasional flooding would occur, which could rise
as high as six inches. In February 1999, Kimberlee began “making inquiries with
the City expressing [her] concern about growing drainage problems on the
[p]roperty.” On February 18, 2001, Kimberlee wrote the City a letter about
“improper drainage/water run-off” resulting in repeated and damaging flooding on
the property. Kimberlee “at other times” also met with “various City officials and
6 I must disagree, however, with the majority opinion’s assertion that the chart included on the 1982 flood map is “illegible.” Majority Op. 20. The City and the Halls ensured that the record included the original exhibits filed in support of the jurisdictional briefing in the trial court. These original exhibits, specifically the chart included on the 1982 flood map, are legible.
16 representatives . . . and the [City’s retained] engineering firm” about “[t]hese
concerns.” As construction began on the project, Kimberlee saw that her
property was “being turned into a ‘bowl’ with the raised roadway of Bear Creek
Parkway East immediately south of the [p]roperty, and the now significantly
raised roadway of Keller-Smithfield Road South immediately west of the
[p]roperty.” On April 14, 2005, Kimberlee emailed the City to “make SURE that
drainage is being handled. It looks like I am going to be a lake.” On May 24,
2005, while construction on the project was still occurring, the City wrote
Kimberlee and stated that it did not consider her concerns to implicate “potential
private property storm water problems” but, instead, believed her issue related to
“potential public storm water capacity or erosion problems.”
Kimberlee’s husband, Thomas Hall, also submitted an affidavit, but he had
not moved into the house until shortly before the construction on the project
began; thus, his affidavit does not relate to what the City knew at the time it
planned the project. The Halls also submitted the affidavit of Frederick G. Ehler,
a professional engineer and certified flood-plain manager, to “investigate the
flooding which has occurred and is likely to continue to occur” to the Halls’
property. The majority opinion recounts Ehler’s report, and it would serve no
purpose for me to restate it other than to emphasize that Ehler pointed out that
FEMA’s flood-insurance study for Tarrant County (which includes the City) did
not consider the effects of three developments and two road-improvement
projects that occurred after Kimberlee bought the property in 1985, which
17 “resulted in much more water being carried as run-off in the [Big Bear Creek]
drainage basin, even in periods of relatively light rain.” Ehler concluded that “in
the vicinity of the Hall residence, due to recent upstream and downstream
improvements and modifications to the watershed[,] it is now more likely that a
storm of lower intensity will produce a flood event of higher magnitude.” Majority
Op. 33–35. The Halls also offered excerpts from the deposition of the director of
the City’s public-works department in which he stated that the purpose of raising
the road as part of the project was to prevent flooding of the road.
B. DE NOVO REVIEW
The crucial question becomes whether the Halls, through their proffered
evidence, established a genuine issue as to whether the City knew that flooding
to the property was substantially certain at the time it constructed the project.
See Wilson, 168 S.W.3d at 829. As stated before, this is a heightened intent
standard, requiring objective indicia of the City’s intent. Gragg, 151 S.W.3d at
555; State Farm, 145 S.W.3d at 168. The trial court concluded that the Halls
raised a genuine issue of material fact, which is reviewed de novo. See Heinrich,
284 S.W.3d at 378.
At the time of the construction of the project, the City was aware that the
flood-elevation levels would not be substantially affected by the project. Ehler
posited, however, that these studies, maps, and charts failed to account for
development in the area, which resulted in more water run-off in the drainage
basin. Before construction began, Kimberlee complained to the City and the
18 City’s retained engineering firm about drainage problems on her property, which
was located in the 100-year floodplain of Big Bear Creek. Kimberlee wrote the
City a letter about “improper drainage/water run-off” resulting in repeated and
damaging flooding on the property. Kimberlee “at other times” also met with
“various City officials and representatives . . . and the [City’s retained]
engineering firm” about “[t]hese concerns.”
I would conclude that this evidence does not provide the objective indicia
that the City knew that the project would be substantially certain to cause
increased flooding on the Halls’ property. The Halls concede that their property
lay in the floodplain and was subject to occasional flooding. Although Kimberlee
complained about the drainage problems, there is nothing to connect these
complaints to the project or to whether the City knew or was substantially certain
that increased flooding would be the result of the project. While the Halls were
diligent in reporting to the City that increased flooding occurred after the project
was begun and completed, there is insufficient objective indicia that the plans for
the approved project were substantially certain to increase flooding on the Halls’
property. See Wilson, 168 S.W.3d at 830; see also Jennings, 142 S.W.3d at 313
(explaining accidental damage insufficient evidence of inverse condemnation).
Under the heightened intent standard applicable to inverse-condemnation claims,
the Halls must raise a genuine issue that the City knew that the Halls’ property
would be damaged or that damage was substantially certain to result from the
project at the time it approved the project. See Kerr, 2013 WL 842652, at *17; cf.
19 Dallas, Garland & Ne. R.R. v. Hunt Cnty., 195 S.W.3d 818, 821–22 (Tex. App.—
Dallas 2006, no pet.) (holding lack of evidence that municipality intended the
complained-of damage justified summary judgment on inverse-condemnation
claim).
In short, the Halls’ proof must raise a genuine issue that when the City
approved the project it knew or knew with substantial certainty that the project
would cause increased and damaging flooding to the Halls’ property and
continued with the project anyway. See Wilson, 168 S.W.3d at 830 (holding
plaintiffs “had to prove—not that the City might have disbelieved the engineers’
reports, but that it did”); Jennings, 142 S.W.3d at 313 (“When damage is merely
the accidental result of the government’s act, there is no public benefit and the
property cannot be said to be ‘taken or damaged for public use.’” (citation
omitted)). This the evidence does not do. The evidence before the trial court
showed that the City was told that the Halls’ property would not be substantially
affected by the project and that Kimberlee had complained about run-off
problems on her property. The City knew the Halls’ property was in the
floodplain and that Kimberlee had reported flooding, which the City was told
would not increase with the project. The Halls failed to raise a genuine issue that
the City knew more than it was told by FEMA and its retained engineering firm.
See Wilson, 168 S.W.3d at 829. Further, none of the Halls’ responsive evidence
raises a genuine issue that the City knew flooding was inevitable as a result of
20 the project. See id. The Halls failed to raise a genuine issue of material fact as
to the City’s intent.
The Halls’ theory that the City’s failure to fix the recurring flooding problem
after each post-project flooding incident and after the Halls repeatedly
complained to the City does not operate to raise a genuine issue of material fact
as to the trial court’s jurisdiction. The intent element of the City’s governmental
immunity has a “temporal component.” Kerr, 2013 WL 842652, at * 17. The
Halls alleged that the flooding was a result of the project and surrounding
development, which they supported with Ehler’s opinion that the project and all
cumulative upstream and downstream development increased the run-off to the
Halls’ property. However, the Halls’ intent allegations relate solely to the project.
The Halls may not move the target of when the City’s intent is determined by
raising what the City knew before and after each post-project flood. To do so
impermissibly strays into the distorting effects of hindsight that the supreme court
has expressly disavowed. Pollock, 284 S.W.3d at 821.
I recognize that my conclusion indicates that a governmental entity can
benefit from its own willful ignorance. See Eliot Shavin & Chad Baruch,
Sovereign Immunity for Nuisance and Takings Claims in Texas after City of
Dallas v. Jennings, 58 SMU L. Rev. 195, 208 (2005) (“In essence, Jennings
creates a rule by which the government’s intentional ignorance immunizes it from
liability under the Takings Clause.”). However, there is no evidence that the City
intentionally failed to conduct the appropriate studies or consult engineers before
21 embarking on the project. I am sure that in the appropriate case, it could be
found that a property owner raised a genuine issue on an entity’s intent based on
its willful failure to consult experts before beginning a project for the benefit of the
public. Cf. Wilson, 168 S.W.3d at 829 (“None of the evidence . . . showed the
City knew more than it was told by the engineers. The [Plaintiffs’] expert testified
that flooding was (in his opinion) inevitable, but not that the City knew it was
inevitable.”).
VII. CONCLUSION
I believe the Halls failed to meet the heightened standard applicable to the
City’s intent and, therefore, did not raise a genuine issue of material fact
regarding what the City knew at the time of the project sufficient to invoke the trial
court’s jurisdiction. As such, the trial court erred by denying the City’s plea to the
jurisdiction. I would reverse and remand to the trial court for entry of an order
granting the City’s plea.
LEE GABRIEL JUSTICE
DELIVERED: May 1, 2014