Plaintiffs’ taking and negligence claims dismissed in flooding damage case

City of Carrollton, Texas v. Milan Hamrla, Petra Chudejova, Michael and Laura Brewer, Dalia Chavarria, Diane and Gene Hines, and Keith Effert, 02-15-00119-CV (Tex. App. – Fort Worth, January 7, 2016).

This is an interlocutory appeal from the denial of a plea to the jurisdiction where the Fort Worth Court of Appeals reversed the denial and dismissed the Plaintiffs’ taking and negligence claims regarding flooding damage.

Plaintiffs own homes in a subdivision which have a retaining wall built over a City sewer easement in the 1980s. The wall had problems over several decades. The City repaired the wall at different times in the past, but refused to repair the wall due to problems which occurred in 2009. The 2009 problem was a slope failure where Appellees’ properties flooded causing the retaining wall it to crumble in places. Plaintiffs filed suit alleging takings claims, negligence claims, and declaratory judgment claims. The City filed a plea to the jurisdiction which was denied. City appealed.

Under a takings analysis, when property damage is the unintended result of the government’s act, there is no public benefit and it cannot be said that the property was “taken or damaged for public use.” Mere negligence that eventually contributes to the destruction of property is not a taking. While Appellees have made numerous allegations concerning the City’s inactions, they have failed to allege that the City intended the slope failure to occur as a result of a specific action or inaction, or that the City was substantially certain that the slope failure would occur at the time that the City failed to take a specific action. As a result, they did not establish jurisdiction for a takings claim. As to the negligence claims, Plaintiffs allege the City used a backhoe to move dirt at different times in relation to the wall. However, the use of motor-driven equipment is not enough.  There must be a nexus between the use and cause of damage. Plaintiffs failed to establish any activity by the City’s use of the backhoes caused the slope failure. As a result, the negligence claims should have been dismissed. Finally, with regards to the declaratory judgment claims, it is not enough for a litigant to challenge the actions of a governmental entity.  Declaratory judgments are only actionable against a governmental entity if challenging the validity of an action.  Plaintiffs have not brought forth a challenge to the validity of any action. As a result, the declaratory judgment action should be dismissed.

If you would like to read this opinion click here. Panel:  Justice Dauphinot, Justice Walker and Justice Gabriel.  Memorandum Opinion by Justice Walker.  The attorneys listed for the City are Meredith A. Ladd and Fredrick ‘Fritz’ Quast.  The attorney listed for Effert is Bruce E. Turner.

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