KERR v. DEPT. OF TRAN

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Docket Number

No. 01-00-01269-CV

Attorney(S)

Russell H. McMains, Corpus Christi, for Appellant. John B. Lay, Austin, for Appellee.

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Smart Summary

Factual and Procedural Background

Edward A. and Norma Kerr, along with approximately 360 other plaintiffs, sued the Texas Department of Transportation (TXDOT), Harris County Flood Control District, Harris County, two municipal utility districts, seven real estate developers, and seven engineering companies. Plaintiffs alleged that activities within the White Oak Bayou watershed since 1984 caused flooding on or about September 10-11, 1998, resulting in damage to their homes and properties. Specifically, plaintiffs claimed that TXDOT's construction of feeder lanes on Beltway 8 and reconstruction of portions of Highway 290 during the 1980s and 1990s increased stormwater runoff, detrimentally impacting plaintiffs downstream. Plaintiffs alternatively alleged that governmental defendants, including TXDOT, caused a non-negligent and unreasonable interference with the use and enjoyment of their property, resulting in nuisance damages.

TXDOT filed a plea to the jurisdiction asserting sovereign immunity, arguing that no statutory waiver or legislative consent permitted suit against it, and thus the trial court lacked jurisdiction. Plaintiffs responded that jurisdiction existed under two causes of action: (1) a constitutional taking or damaging under article I, section 17 of the Texas Constitution, and (2) nuisance. The trial court granted TXDOT's plea to the jurisdiction and dismissed TXDOT from the lawsuit. Plaintiffs appealed this dismissal.

Legal Issues Presented

Whether the trial court has jurisdiction over plaintiffs' lawsuit against TXDOT under article I, section 17 of the Texas Constitution, despite TXDOT's claim of sovereign immunity.
Whether plaintiffs' petition sufficiently pleads the essential elements of a constitutional taking or damaging of property by TXDOT.

Arguments of the Parties

Appellants' Arguments

Statutory waiver of sovereign immunity or legislative consent is not required because article I, section 17 of the Texas Constitution authorizes suits and recoveries against the sovereign for taking or damaging property or interfering with private property interests.
The plaintiffs pleaded facts showing that TXDOT intentionally performed acts in the exercise of lawful authority that caused an increase in stormwater runoff, damaging their property for public use without adequate compensation.
It is only the act causing the damage that must be intentional, not necessarily the damage itself.

Appellee's Arguments

Plaintiffs must plead and prove the essential elements of constitutional taking, including intent, lawful authority, and public use, which are missing from plaintiffs' petition.
The element of intent is lacking because it is not directed to the governmental entity’s action but to the damage to the property.
The State is not liable for damages caused by negligence; any taking must involve intentional acts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Texas Dept. of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999)	A plea to the jurisdiction is appropriate when a governmental unit asserts lack of subject-matter jurisdiction.	Established standard that jurisdictional questions are reviewed de novo and courts look solely to petition allegations in plea to jurisdiction.
Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736 (Tex.App.-Austin 1994, writ denied)	Trial court must look only to the petition’s allegations when deciding a plea to the jurisdiction.	Reinforced that pleadings are taken as true and construed in favor of the pleader for jurisdictional questions.
Texas Ass'n of Bus. v. Texas Air Control Bd, 852 S.W.2d 440 (Tex. 1993)	Plaintiff bears burden to allege facts affirmatively showing subject-matter jurisdiction.	Court applied this principle to require plaintiffs to plead elements of constitutional taking to establish jurisdiction.
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998)	Whether a trial court has subject-matter jurisdiction is a question of law reviewed de novo.	Court reviewed the jurisdictional dismissal de novo.
State v. Biggar, 848 S.W.2d 291 (Tex. 1993)	Under article I, section 17, a landowner may recover for damages even without transfer of property rights.	Supported the constitutional waiver of sovereign immunity for property damage claims.
Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980)	Constitution waives immunity for taking, damaging, or destruction of property for public use.	Confirmed that governmental immunity is waived for constitutional takings.
State v. Hale, 146 S.W.2d 731 (Tex. 1941)	Elements of constitutional taking: intentional act by State in lawful authority causing taking for public use.	Defined the elements plaintiffs must plead to establish jurisdiction for constitutional taking claims.
City of Abilene v. Smithwick, 721 S.W.2d 949 (Tex.App.-Eastland 1986, writ ref'd n.r.e.)	Negligence alone does not constitute a taking; intent to take or intent to do the act causing harm is required.	Court distinguished negligence from intentional acts for constitutional taking.
City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997)	Negligence contributing to damage is insufficient to establish constitutional taking.	Emphasized requirement of intent to take or damage property for constitutional claim.
Green Int'l v. State, 877 S.W.2d 428 (Tex.App.-Austin 1994, writ dism'd)	Intent to perform the act causing harm is necessary for constitutional taking.	Supported plaintiffs' argument that intent relates to the act, not necessarily the damage.
Davis v. City of Palestine, 988 S.W.2d 854 (Tex.App.-Tyler 1999, no pet.)	Special exception proper to challenge missing element of intent on pleadings.	Indicated procedural mechanism for contesting intent element in pleadings.
Texas Highway Dept. v. Weber, 219 S.W.2d 70 (Tex. 1949)	The State may be liable if damage is necessarily incident to or consequential of an authorized intentional act.	Court adopted this interpretation in construing plaintiffs' allegations of intentional conduct.
State v. Sledge, 36 S.W.3d 152 (Tex.App.-Houston [1st Dist.] 2000, no pet. hist.)	No allegation of intentional act by State relating to property damage means no constitutional taking.	Distinguished from current case where plaintiffs alleged intentional acts.

Court's Reasoning and Analysis

The court first recognized that a plea to the jurisdiction challenges the trial court’s authority to hear a case and that the court must consider only the petition’s allegations, accepting them as true and construing them favorably to the plaintiff. Sovereign immunity generally bars suits against the State unless waived by statute or constitution.

The plaintiffs asserted jurisdiction under article I, section 17 of the Texas Constitution, which waives immunity for takings or damage of property for public use without just compensation. The court identified the elements of a constitutional taking: (1) intentional acts by the State in lawful authority, (2) resulting in a taking or damaging of property, (3) for public use.

TXDOT argued plaintiffs failed to plead intent and other elements, but the court found plaintiffs’ fifth amended petition sufficiently alleged that TXDOT intentionally performed authorized construction activities that increased stormwater runoff, causing damage to plaintiffs’ property for public use without compensation. The court emphasized that the intent must relate to the act causing harm, not necessarily to the damage itself, and that damage necessarily incident to authorized intentional acts can establish liability.

Considering these allegations as true and construing them in plaintiffs’ favor, the court held that plaintiffs stated a claim for constitutional taking sufficient to establish jurisdiction. The court therefore reversed the trial court’s dismissal and remanded the case.

Holding and Implications

The court REVERSED the trial court’s order granting TXDOT’s plea to the jurisdiction and REMANDED the case for further proceedings.

This decision restores plaintiffs' ability to pursue their constitutional taking claims against TXDOT. The ruling clarifies that pleading intentional acts by a governmental entity in lawful exercise of authority causing property damage can overcome sovereign immunity at the jurisdictional stage. No new precedent was established; the court applied existing constitutional takings principles to the facts alleged.

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EDWARD A. AND NORMA KERR, ET AL., Appellants v. THE TEXAS DEPARTMENT OF TRANSPORTATION, Appellee The full list of appellants appears in the Court's judgment.

OPINION

NUCHIA, Justice

This is an appeal of an order of the trial court granting The Texas Department of Transportation's ("TXDOT") plea to the jurisdiction and dismissing TXDOT from this lawsuit. We reverse and remand.

BACKGROUND

Edward A. and Norma Kerr, along with approximately 360 other plaintiffs ("plaintiffs"), sued TXDOT, Harris County Flood Control District, Harris County, two municipal utility districts, seven real estate developers, and seven engineering companies, contending that their activities within the White Oak Bayou watershed since 1984 caused flooding of the watershed on or about September 10-11, 1998 and resulted in damages to their homes and properties. Plaintiffs specifically pleaded that TXDOT's construction of feeder lanes on Beltway 8 and reconstruction of portions of Highway 290 in the 1980s and 1990s increased stormwater runoff that "detrimentally impacted" plaintiffs, who were downstream of these activities. Plaintiffs pleaded, in the alternative, that the governmental defendants, including TXDOT, caused a non-negligent and unreasonable interference with the use and enjoyment of their property that resulted in nuisance damages.

TXDOT filed a plea to the jurisdiction, original answer, and special exceptions to plaintiffs' third amended petition. In its plea to the jurisdiction, TXDOT asserted sovereign immunity from suit and liability and contended that its immunity had not been waived. TXDOT argued that, because plaintiffs did not allege a statutory waiver of sovereign immunity or legislative consent to file suit, the trial court did not have jurisdiction to grant relief against TXDOT and the suit against TXDOT should be dismissed.

Plaintiffs responded that they were suing TXDOT under two causes of action over which the trial court had jurisdiction: (1) a constitutional damaging or destroying under article I, section 17 of the Texas Constitution and (2) nuisance. The trial court granted TXDOT's plea to the jurisdiction, and plaintiffs appealed.

DISCUSSION

Standard of Review

A plea to the jurisdiction is appropriate whenever a governmental unit believes that the trial court lacks subject-matter jurisdiction. See Texas Dept. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736,739 (Tex.App.-Austin 1994, writ denied). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject-matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). The court of appeals must take the allegations in the petition as true and construe them in favor of the pleader. Id. Whether a trial court has subject-matter jurisdiction is a question of law and is reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

We recognize that, when both a plea to the jurisdiction and a motion for summary judgment with attached summary judgment evidence have been filed, courts have held that a reviewing court may consider the pleadings and the evidence in determining jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 551-53 (Tex. 2000); State v. Sledge, 36 S.W.3d 152, 155 (Tex.App.-Houston [1st Dist.] 2000, no pet. hist.). However, this exception to the general rule does not apply in the present case.

Plea to the Jurisdiction

In their sole issue on appeal, plaintiffs contend the trial court has jurisdiction of this lawsuit against TXDOT under article I, section 17 of the Texas Constitution. Plaintiffs argue, in effect, that statutory waiver of sovereign immunity or legislative consent to file suit is not required because the Texas Constitution authorizes suits and recoveries against the sovereign for taking or damaging property or for interfering with private property interests.

Section 17 provides in pertinent part, "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. Under section 17, a landowner may recover for damages to his property even though there is no transfer of property rights. State v. Biggar, 848 S.W.2d 291, 295 (Tex. 1993); Steele v. City of Houston, 603 S.W.2d 786, 790 (Tex. 1980). The constitution waives governmental immunity "for the taking, damaging or destruction of property for public use." Steele, 603 S.W.2d at 791.

The elements of a constitutional taking are (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a "taking" of property (3) for public use. State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941); City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.-Eastland 1986, writ ref'd n.r.e.). Negligence that merely contributes to the damage to or destruction of property does not constitute a taking. City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997). The plaintiff "must show intent to take, or at least the intent to do the act that caused the harm." Green Int'l v. State, 877 S.W.2d 428, 434 (Tex.App.-Austin 1994, writ dism'd).

In its brief, TXDOT argues that plaintiffs must plead and prove the essential elements of constitutional taking and that the elements of "intent," "authority," and "public use" are missing from plaintiffs' petition.

For purposes of establishing the trial court's jurisdiction, it is necessary only to plead facts showing the elements of the cause of action. Proof of those elements is required to recover under a plaintiff's cause of action. See City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.-Eastland 1986, writ ref'd n.r.e.).

In their fifth amended petition, plaintiffs pleaded the following facts relating to TXDOT:

• TXDOT, by and through construction activities related to Beltway 8 and Highway 290, undertook actions that caused an increase in stormwater runoff.

• TXDOT, in the exercise of its lawful authority, constructed the feeder lanes associated with Beltway 8 from Highway 290 north to the Sam Houston Race Park.

• TXDOT reconstructed portions of Highway 290 between Beltway 8 and Telge Road.

• These construction activities occurred in the 1980s and 1990s.

• TXDOT, by its intentional conduct and in the exercise of its lawful authority, caused an invasion and/or interference with plaintiffs' property, and these acts constitute a damaging and/or destroying of plaintiffs' property for application to public use without adequate compensation in violation of section 17 of article I of the Texas Constitution.

It is clear that these allegations include the elements of "intent," "authority," and "public use."

TXDOT also contends that the element of intent is missing because that element is not directed to the action of the governmental entity, but to the damage to the property, citing Likes, 962 S.W.2d at 505 (city produced summary judgment proof of no intentional acts that created a taking), Steele, 603 S.W.2d at 792 (constitutional taking when police set fire to plaintiff's home to capture escaped convicts hiding in home), City of Houston v. Renault, Inc., 431 S.W.2d 322, 325-26 (Tex. 1968) (unintentional flooding of auto storage lot caused by city maintenance of road was not a constitutional taking), State v. Sledge, 36 S.W.3d 152, 155 (Tex.App.-Houston [1st Dist.] 2000, no pet. hist.) (no allegation that State intentionally committed act relating to property damage).

On the other hand, plaintiffs contend it is only the act causing the damage that must be intentional, citing Likes, 962 S.W.2d at 504-05 ("A person's property may be `taken, damaged or destroyed' . . . if an injury results from either the construction of public works or their subsequent maintenance and operation."), State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941) (liability under section 17 of article I is not based on whether the taking or damaging of property was done negligently or intentionally, but whether "the State intentionally perform[ed] certain acts in the exercise of its lawful authority" that resulted in the taking or damaging of plaintiffs' property), and Davis v. City of Palestine, 988 S.W.2d 854, 858-59 (Tex.App.-Tyler 1999, no pet.) (reversing summary judgment in City's favor, although plaintiff pleaded negligence rather than intent, because special exception was proper vehicle to challenge missing element of cause of action).

If, by their argument, plaintiffs mean that the State becomes liable for a constitutional taking whenever it intentionally performs some act that, through negligence, results in some harm to property, they are mistaken. Case law makes it clear that the State is not liable for damages caused by negligence. See, e.g., Likes, 962 S.W.2d at 504-05; Steele, 603 S.W.2d at 790; Texas Highway Dept. v. Weber, 219 S.W.2d 70, 71-72 (Tex. 1949); Hale, 146 S.W.2d at 737; Green Int'l, 877 S.W.2d at 434; Smithwick, 721 S.W.2d at 951-52. However, the State may be liable if the damage is necessarily incident to or necessarily a consequential result of an authorized, intentional act. See Weber, 219 S.W.2d at 71. We construe plaintiffs' pleading of intentional conduct to include damage necessarily incident to or necessarily a consequential result of TXDOT's acts.

TXDOT specially excepted to plaintiffs' failure to allege, in their third amended petition, that TXDOT's acts constituted an intentional taking or damaging of plaintiffs' property. The record on appeal does not contain a ruling on TXDOT's special exceptions or any special exceptions to plaintiffs' fifth amended petition, which was their live pleading at the time of the dismissal.

Looking solely at the allegations in plaintiffs' petition, taking them as true, and construing them in the light most favorable to the pleader, we hold that plaintiffs' petition states a claim for a constitutional taking. We sustain plaintiffs' issue on appeal. Accordingly, we reverse the order of the trial court and remand.