City of Albany v. Diana Christine Blue and Elva Rae Sanders, 11-18-00051-CV, (Tex. App – Eastland, April 2, 2020)
This is an interlocutory appeal in a nuisance and inverse condemnation case where the Eastland court of appeals reversed the denial of the City’s plea to the jurisdiction. It then remanded to allow the Plaintiffs the ability to replead.
The City began construction of a drainage and improvement project for the city-owned golf course next to property owned by the Plaintiffs. The Plaintiffs assert the construction altered surface water flow and drainage resulting in the flooding of their property. They sued and the City filed a plea to the jurisdiction, which was denied. The City appealed.
The City only challenged the sufficiency of the Plaintiffs’ pleadings and did not submit any evidence contrary to the alleged facts. The City asserts that Appellees failed to allege facts that show an intentional act of the City. However, if the City knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged. The Plaintiffs merely allege that “[Appellant] knew that its actions would cause identifiable harm, or that specific property damage was and is substantially certain to occur.” However, conclusory statements in a pleading are insufficient to establish jurisdiction. As a result, the Plaintiffs did not sufficiently plead an inverse condemnation claim. Likewise, they failed to allege the required intent needed to establish a nuisance claim against the City under the Texas Constitution. Again, they provide mere conclusory statements. However, the Plaintiffs were not put on notice their pleadings were defective. The pleading defects in this case are not the type that can never be cured. As a result, the case is remanded to give the Plaintiffs the opportunity to cure the defects.
If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Senior Justice Wright, and Justice Stretcher. Memorandum Opinion by Justice Stretcher. Docket page with attorney information can be found here.