Knowledge of preventable damage does not equal intent to damage under Takings claim says 4th Court of Appeals



San Antonio Water System v. Robert Overby and Teresa Overby, 04-13-00364-CV (Tex. App. – San Antonio, March 19, 2014)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a flooding case which the San Antonio Court of Appeals reversed and rendered.

The Overbys allege their yard and home were flooded by rainwater and sewage over several years due to a deteriorated condition of an alleyway behind their home. They sued several entities including the San Antonio Water System (“SAWS”). Specific to SAWS, the Overbys  claimed it failed to maintain manhole covers and the sewer system and brought takings, negligence, declaratory judgment and nuisance claims.  SAWS filed a plea which the trial court granted in part and denied in part, dismissing the declaratory judgment action and negligence claims. After further discovery, SAWS filed a second plea which the trial court denied and it appealed.

The 4th Court first determined SAWS was a governmental entity subject to takings claims. Examining the evidence most favorable to Overby, it assumed SAWS knew it should have changed the grade in the alleyway.  However, such is not evidence of the necessary intent to form a takings claim. While SAWS may have known the damage was preventable, that does not equate to an intent to deprive the Overbys of their property. The takings claim should have been dismissed. As to nuisance, the Overbys claim the Texas Tort Claims Act waives immunity for such a claim. However, even if accurate, there is no nexus between the use of motor driven equipment and the alleged injury.  The injury related not to the use of equipment but to the state the alley was left. As a result the nuisance claim should have been dismissed. The order denying the plea was reversed and judgment rendered.

If you would like to read this opinion click here.  Panel: Justices Olvarez, Barnard, and Bryan Marion. Opinion by Justice Olvarez. The attorneys listed for SAWS are Patrick C. Bernal and Clarissa Rodriguez. The attorney listed for Overby is Robert Wilson.

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