No-evidence summary judgment is improper vehicle to make jurisdictional challenge says 14th Court of Appeals

Frank and Shelley Thornton v. Northeast Harris County MUD 1, 14-13-00890-CV (Tex. App. – Houston [14^th dist.], July 24, 2014).

This is an interlocutory appeal in a condemnation case where the property owner filed counter-claims. The Houston Court of Appeals for 14^th District reversed in part the summary judgment motions granted for the MUD and affirmed in part with a remand.

After discovering during a project that the MUD did not have a recorded easement on certain land, the MUD filed an eminent domain suit to acquire part of a drainage easement on the Thorntons’ land. The special commissioners awarded Thorntons $2300 in damages. Thorntons objected to the award and refused to allow the MUDs contractors onto his property to complete the project already underway. The trial court granted the MUDs partial summary judgment motion regarding its “right to take.” Thorntons filed counterclaims for inverse condemnation, trespass, negligent trespass and nuisance. The MUD filed a plea to the jurisdiction and summary judgment as to the counterclaims. The trial court granted the MUD’s summary judgments and did not rule on the plea. The Thorntons filed an interlocutory appeal but the MUD argued that since the plea was not ruled upon, there was no right to interlocutory appeal.

The court first determined that the MUD’s traditional and no-evidence summary judgments made sovereign immunity arguments essentially the same as their plea and therefore the Thorntons had the right of interlocutory appeal from the ruling on sovereign immunity. The court next spent some time discussing the “negligent trespass” claim. After a detailed analysis the court determined the MUD maintained immunity for such a claim. Essentially, the only basis for waiver of governmental immunity the Thorntons alleged in their petition was article I, section 17, of the Texas Constitution. Because the Thorntons asserted no other grounds for a waiver of MUD’s governmental immunity, and a claim for constitutional taking cannot be based on mere negligence, the Thorntons’ pleadings failed to invoke and affirmatively negated the trial court’s jurisdiction. However, as to the inverse condemnation, trespass and nuisance, the Thorntons established jurisdiction through their pleadings. The MUD entered onto their property (presumably because it incorrectly believed it had a recorded easement) and began excavations and project development. The MUD had knowledge that its excavation process could lead to lead-contaminated soil which could destroy the property for purposes other than a drainage easement. As a result, the inverse condemnation element of intent was satisfied. Since the project was for a necessary drainage easement, the Thornton’s satisfied the “public use” requirement.

However, the most significant holding was when the court determined that it was improper to make a jurisdictional ruling based on a no-evidence motion for summary judgment. Adopting the reasoning of the 1^st District’s holding in Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2012, no pet.) it held allowing defendants to challenge subject matter jurisdiction by way of no-evidence motion would force plaintiffs to “put on their case simply to establish jurisdiction” and would eliminate any burden on the defendant other than to identify the specific ground he believes to be lacking evidentiary support.  The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.  Without analyzing whether the evidence submitted was sufficient, the court summarily determined the no-evidence summary judgment motion is simply improper to use.  As a result, the “negligent trespass” claims are dismissed and the remaining claims are remanded for trial.

If you would like to read this opinion click here.  Panel: Justice Boyce, Justice Christopher and Justice Brown.  Memorandum Opinion by Justice Brown. The attorneys listed for Thornton are Jonathan Scott Stoger and J. Marcus Hill.  The attorney listed for the MUD is Charles Black McFarland