Plaintiff could not establish City was substantially certain any actions were likely to cause flooding

City of Magnolia, City of Magnolia 4A Economic Development Corporation and City of Magnolia 4B Community Development Corporation v. David Smedley, 09-15-00334-CV  (Tex. App—Beaumont. July 28,2016)

This is a flooding case where the Beaumont Court of Appeals dismissed the Plaintiff’s claims against the City under a plea to the jurisdiction.

Smedley sued the City and the economic development corporations and contracted entities alleging that the defendants caused the Smedley Property to flood and retain standing water, causing damages.  Smedley alleged that until 2004, water drained off of his properties easily. In 2004 Chicken Express constructed a parking lot on the northeast side of the Smedley Property, and thereafter, in 2011, the City completed construction of the “Magnolia Stroll,” which included a walkway adjacent to the northern edge of the Smedley Property. He alleged the City violated §11.086 of the Texas Water Code, and that “the Defendants City of Magnolia and Chicken Express, Inc., diverted the natural flow of diffuse surface water across the land owned by them, allowing and causing the water to stream onto and over the plaintiff’s property.” Smedley alleged the City’s actions constituted a taking without just compensation.  Smedley also alleged a claim against the City under the Texas Tort Claims Act stating that the City and its employees were negligent in “the operation of motor driven equipment during the construction of the Magnolia Stroll resulting in property damage” and that the City is liable under the Texas Tort Claims Act because “[t]he City was performing a proprietary function by a municipality, i.e., the construction and design of a street…” The City filed a plea to the jurisdiction which was granted-in-part and denied-in-part.

First, with regards to the development corporations, the court noted that while a jurisdictional issue can be raised for the first time on appeal, the court of appeals interlocutory jurisdiction must still be properly triggered. Since the development corporations filed their own pleas to the jurisdiction, got them partially denied, then filed summary judgments which were denied on the same grounds, they did not timely appeal the issues.  The City did properly trigger interlocutory jurisdiction. To defeat the City’s plea to the jurisdiction, Smedley must raise a fact issue as to intent, causation, and public use. In a takings case, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” It is not enough that the act causing the harm be intentional—there must also be knowledge to a substantial certainty that the harm will occur. A taking cannot rest on the mere negligence of the government. Smedley’s evidence did not allege or portray the grade level of the easement prior to or at the time of the construction of the Stroll, nor do they provide legally sufficient evidence that the City was substantially certain that the construction of the Stroll would cause flooding to the Smedley Property.  As a result, he failed to raise a factual dispute so the plea should have been granted as to the takings claim. Further, the court affirmed the granting of the plea as to the TTCA and Water Code negligence claims as no waiver of immunity was properly alleged.

If you would like to read this opinion click here. The panel includes Chief Justice McKeithen, Justice Horton, and Justice Johnson. Justice Johnson delivered the opinion of the court. If you would like to see the Representatives for the Appellant’s and Appellee click here.