City immune from trespass after all says 13th Court of Appeals on rehearing

Redburn v City of Victoria, 13-12-00215-CV, (Tex. Civ. App. – Corpus Christi, May 16, 2013, on rehearing).

Back in February I reported this case which essentially held that the City and its employees could be held responsible for trespass claims. To read the update with opinion citation click here.  The City filed a motion for rehearing.  In response, the court issued this opinion which withdrew its prior opinion and now properly holds that the City and its employees are immune from trespass claims.

In this case, Redburn owned property which contained a City culvert. He brought, among other claims, a trespass claim asserting the culvert was never dedicated to the City and the City had no right to go onto his property to inspect or maintain it. He then plugged the culvert with several tons of concrete and filed this suit against the City. The City also counter-claimed asserting an implied dedicated easement. The trial court granted the City’s plea to the jurisdiction dismissing Redburn’s claims and he appealed.

After a detailed analysis, the court determined that the City’s counter-claim waived immunity from suit, but only as to the declaratory judgment claim to quiet title.  The court properly ruled that the individual employees retain immunity in their individual capacities pursuant to Tex. Civ. Prac. & Rem. Code §101.106.  The court further held that since the trespass claim is an intentional tort, the City retains governmental immunity.  This is a much better and more reasoned holding that the court’s prior opinion.  It is interesting to note that it is a memorandum opinion, which is typically used for matters involving well settled law.  I have made my opinion clear in my prior update that the court’s original holding was incorrect in some very major ways.  However, I must credit the court for granting the rehearing and ruling more in-line with well settled law.

If you would like to read this opinion click here.