Property owner can replead to fix flooding case petition defects

THE CITY OF CORPUS CHRISTI v. AGUIRRE PROPERTIES, INC., 13-13-00314-CV (Tex. App. – Corpus Christy, December 19, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a negligence, takings, and nuisance case involving three instances of flooding. The 13th Court of Appeals affirmed in part and reversed in part.

The property owners alleged in the petition that the City uncovered a damaged sewer line and initiated repairs with motor-driven equipment. A few weeks later the City ruptured a parallel line about ten feet away from the property.  As a result, the property was flooded through the lines as well as above ground flooding.  The City then “jetted” the line which the Plaintiff alleges damaged the line further exacerbating the flooding.  The court essentially reposted almost the entire petition language in an attempt to focus on the proper way to plead a cause of action and also several paragraphs out of the plea.

The court first noted that the City failed to provide any evidence to counter the pleading allegations so the court based its determination on the pleadings alone. The pleadings allege the use of motor driven equipment which ruptured the lines and proximately caused the damages for the second flooding event. As a result, the Plaintiffs met the “nexus” requirement between the use of motor driven equipment and the damage. However, for the first and third flooding events, the use of equipment to merely attempt a repair is not a proper nexus. But since a pleading defect such as this could be cured, the Plaintiff should be given the ability to replead and properly allege the nexus.

With respect to the taking’s claims, the court held the accidental occurrences of the three flooding events is not an “intentional” taking.  However, the to the extent the  City blocked access to the property for several months, created dirt banks and damaged the property while repairing the lines by tearing up the blacktop and replacing it with only dirt, such occurrences could be viewed as intentional and for public use so those claims were permitted to go forward. The nuisance claim as it related to the second flooding event was also permitted to go forward and the Plaintiff should be permitted to replead with respect to the other two.

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