Opinion
No. 01-02-00158-CV.
Opinion Delivered August 29, 2003.
On Appeal from the 133rd District Court, Harris County, Texas, Trial Court Cause No. 99-45553.
For Appellant: James B. Blackburn, Blackburn Carter, P.C., 2900 Weslayan, Suite 400, Houston, TX 77027.
Russell H. McMains, Law Offices of Russell H. McMains, 800 N. Shoreline, Suite 2600, Corpus Christi, TX 78401.
Richard Roberts Morrison, Blackburn Carter, P.C., 2900 Weslayan Ste 400, Houston, TX 77027.
Larry J. Doherty, Doherty * Long * Wagner, 13810 Champions Forest Dr. #225, Houston, TX 77069.
For Appellee: Britton B. Harris, 1111 Bagby, 47th Floor, Houston, TX 77002.
Michelle Marie Samadany-Farme, Lorance Thompson, P.C., 2900 N. Loop West, Suite 500, Houston, TX 77007.
Cathy J. Sisk, Harris County Attorneys Office, 1019 Congress, 15th Floor, Houston, TX 77002.
William K. Luyties, 2900 N. Loop W. Ste 500, Houston, TX 77092-8826.
J. Mark Breeding, Andrews Kurth, 600 Travis, Suite 4200, Houston, TX 77002.
Arthur V. Perkins, Coats, Rose, Yale, Ryman Lee, P.C., 800 First City Tower, 1001 Fannin, Houston, TX 77002-6707.
OPINION
This is an inverse condemnation case brought pursuant to Article I, section 17 of the Texas Constitution. Plaintiffs, Edward A. and Norma Kerr, along with approximately 360 other plaintiffs ("plaintiffs"), sued Harris County Flood Control District, Harris County, (collectively, "the Harris County entities"), two municipal utility districts ("the MUDs"), and an engineering company, contending that their activities within the White Oak Bayou watershed since 1984 caused flooding of the watershed during Tropical Storm Frances, resulting in damage to the plaintiffs' homes and properties. The trial court granted summary judgment in favor of the Harris County entities, the MUDs, and the engineering company, and this appeal followed.
Article I, § 17 provides in part:
No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made . . .
Tex. Const. art I, § 17.
BACKGROUND
Plaintiffs own homes in several subdivisions located in the White Oak Bayou watershed. The subdivisions were built in the 70's and early 80's. On September 11, 1998, plaintiffs homes flooded when Tropical Storm Frances dropped over nine inches of rain in the watershed. Plaintiffs contend the Harris County entities' flood control measures during the years before the storm actually caused their homes to flood.
In November 1980, Harris County Commissioners Court authorized Harris County Flood Control District ("the District") to implement an interim storm water management policy. In 1984, Harris County adopted a plan entitled "White Oak Bayou Regional Flood Control Project," which had been prepared by Pate Engineers (hereinafter, "the Pate plan"). The purpose of the plan was to control the 100-year flood by constructing flood control improvements in the White Oak Bayou area. The Pate plan took into account that new development in the area would increase runoff into the Bayou, and was divided into several phases. In Phase I, channel improvements were made at the mouth of the White Oak Bayou, which is downstream from plaintiffs. In Phase II, channel improvements were made from Cole Creek, upstream to North Houston-Rosslyn. Again, the Phase II channel improvements were downstream from plaintiffs. Phase III called for the construction of an earthen channel from North Houston-Rosslyn to Gessner, an area adjacent to plaintiffs properties. Phase IV called for construction in and around Jersey Village. Phases I and II of the Pate plan were completed, but Phases III and IV were not.
In May 1989 and June 1989, flooding in the improved lower half of White Oak Bayou caused the District to question the effectiveness of the Pate Plan, specifically whether the downstream channel had the capacity it was believed to have. Consequently, in 1991, the District hired Klotz Associates, Inc. to design an alternate Phase I to address the concerns raised by the 1989 floods in the lower portion of the Bayou.
Klotz prepared an engineering report, recommending that the District widen the channel from Cole Creek to just upstream of North Houston-Rosslyn and to place a transition control structure in the bayou at the upstream end of the widened channel. The purpose of the structure was to control the transition from the improved lower portion of the bayou from the unimproved upper portion of the bayou, without which erosion of the channel and downstream flooding would have occurred. The Klotz report did not indicate that flooding along any portion of the bayou would be increased by the transition control structure. The Harris County entities stated that, had the Klotz report indicated that the structure would aggravate the flooding potential along the bayou, it would not have been approved.
Plaintiffs' homes, which were located upstream of the transition control structure, flooded in the wake of Tropical Storm Frances, which deluged the area in September 1998. The plaintiffs filed suit, asserting both inverse condemnation claims under Article I, section 17 of the Texas Constitution and nuisance claims. The Harris County entities moved for summary judgment, contending that (1) they were entitled to governmental immunity because the plaintiffs had failed, as a matter of law, to show either an inverse condemnation or nuisance and (2) they could not be held liable because Tropical Storm Frances was an act of God. The MUDs moved for summary judgment, contenting that (1) they were entitled to governmental immunity because the plaintiffs failed to show that they committed an intentional act causing damage, and (2) the flooding was caused by an act of God. The engineering company moved for summary judgment, contending that it had proved its statute of repose affirmative defense as a matter of law. The trial court granted the summary judgments, and this appeal followed.
The plaintiffs also sued the Texas Department of Transportation (TxDOT), alleging that TxDOT had caused their damages by way of its activities in constructing Beltway 8 and Highway 290, thereby causing an increase in storm water runoff in the area. The trial court granted TxDOT's plea to the jurisdiction based on sovereign immunity. This Court, after reviewing the pleadings alone and without considering the merits of the case, concluded that the plaintiffs' pleading stated a claim for a constitutional taking by TxDOT. See Kerr v. Tex. Dept. of Transp., 45 S.W.3d 248, 252 (Tex. App.-Houston [1st Dist.] 2001, no pet.). TxDOT then settled its case with the plaintiffs and is not a party to this appeal.
STANDARDS OF REVIEW
We follow the usual standards of review for an order granting summary judgment under rule 166a(a), (b), or (i). See Tex.R.Civ.P. 166a(a), (b), (i); Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) (summary judgment order not specifying grounds); Science Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997) (standard of review and burden under rule 166a(a), (b)); Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp. , 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (standard of review and burden under rule 166a(i)). Traditional summary judgment is proper if a movant negates at least one element of the nonmovant's theory of recovery. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A "no evidence" motion for summary judgment is proper if, after adequate time for discovery, the movant shows that the nonmovant has produced no evidence on at least one essential element of the nonmovant's theory of recovery. See Tex.R.Civ.P. 166a(I).
THE HARRIS COUNTY ENTITIES' SUMMARY JUDGMENTS
I. INVERSE CONDEMNATION
The Texas Constitution provides in pertinent part, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. . . ." Tex.Const. art. I, § 17. "Inverse condemnation" occurs when property is taken, damaged, or destroyed for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation. City of Abilene v. Burk Royalty Co. , 470 S.W.2d 643, 646 (Tex. 1971); Allen v. City of Texas City, 775 S.W.2d 863, 864 (Tex.App.-Houston [1st Dist.] 1989, writ denied). Under section 17, a landowner may recover for damages to his property even though there is no transfer of property rights. State v. Biggar , 848 S.W.2d 291, 297-98 (Tex.App.-Austin 1993) aff'd, 873 S.W.2d 11 (Tex. 1994); Steele v. City of Houston , 603 S.W.2d 786, 790 (Tex. 1980).
A. No Taking Because Flooding Was Isolated Incident
The Harris County entities argue that, because the flood was an isolated incident, and not a recurring problem, they have proved there was no constitutional "taking" as a matter of law. We agree.
In Brazos River Auth. v. City of Graham , 354 S.W.2d 99 (Tex. 1962), the city alleged that the river authority had taken three city-owned properties as a result of flooding associated with the construction of the Possum Kingdom Dam. Id. at 101. Although all three of the properties were damaged by flooding on at least one or two occasions, the evidence established that only one of the three properties, the city's sewage disposal plant, was subject to continuous, repeating flooding due to the dam. Id. at 104. Because the other two city-owned properties were subject to sporadic flooding only, they had not been "taken" in a constitutional sense, and a jury verdict awarding the entire value of the properties was reversed. Id. at 108-09.
Therefore, based on the holding of Graham , we agree that the plaintiffs' properties have not been "taken," and, like the plaintiff in Graham , they are not entitled to recover the entire value of their properties, or any other type of damages or relief that are available for a complete taking.
However, we do not agree that Graham compels the conclusion that plaintiffs cannot recover for the "damage" to their property caused by the one-time flood. The Graham court held a single flood would not support an award for the entire value of the property flooded; it did not say that a plaintiff could never recover any damages associated with a single flood. Id. at 107. To the contrary, the Graham court stated, "Until a plaintiff is in a position so to establish the repetitious nature of the injury, he should be confined in his demand for damages to those flowing directly from the single injury or flooding. Id. at 108 (emphasis added). Therefore, we conclude that, if the plaintiffs are able to prove the other elements of an inverse condemnation, the fact that their suit is based on a single flood will not prevent them from recovering for the damage to their homes, although they cannot recover the entire value of their homes or other relief associated with a "taking," rather than "damaging."
See Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. App.-Corpus Christi 1975, writ ref'd n.r.e.) (holding injunctive relief not available to prevent threatened "damaging").
It is significant that, after finding that the two city properties had not been "taken," and that the jury verdict awarding the entire value of those properties could not stand, the Graham court did not render a take nothing judgment on the city's claims arising from the damage to those two properties. Instead, the court reversed and remanded those claims for further proceedings, thus indicating that an award of some amount of damages would be appropriate. 354 S.W.2d at 111.
B. Intent to Damage
The Harris County entities next contend that they are entitled to judgment as a matter of law because they showed that they did not "intend" to take or damage the plaintiffs' property, and that their actions were, at best, negligent. The elements of a constitutional taking of damaging are (1) the State intentionally performed certain acts in the exercise of its lawful authority, (2) that resulted in a "taking" of property (3) for public use. State v. Hale , 136 Tex. 29, 146 S.W.2d 731, 736 (1941); City of Abilene v. Smithwick , 721 S.W.2d 949, 951 (Tex.App.-Eastland 1986, writ ref'd n.r.e.). However, negligence that merely contributes to the damage to or destruction of property does not constitute a taking. City of Tyler v. Likes , 962 S.W.2d 489, 505 (Tex. 1997).
The Harris County entities argue that the plaintiffs failed to prove "intent," an essential element of constitutional taking. However, the parties disagree about what the intent element must show. Plaintiffs argue that they need only prove intent to do the act that caused the damage, while the Harris County entities argue that there must be proof that they intended the damage that was the result of their act. This Court has already addressed and decided this issue in the previous appeal, wherein we stated:
If, by their argument, plaintiffs mean that the State becomes liable for a constitutional taking whenever it intentionally performs some act that, through negligence, results in some harm to property, they are mistaken. Case law makes it clear that the State is not liable for damages caused by negligence. However, the State may be liable if the damage is necessarily incident to or necessarily a consequential result of an authorized, intentional act.
Kerr , 45 S.W.3d at 252 (citations omitted). Thus, we conclude that the element of "intent" in a constitutional takings case requires more than mere proof that the government performed an intentional act that caused damage; the plaintiffs must also show that the damage caused thereby was necessarily incident to or necessarily a consequential result of the government's intentional act. See also City of Houston v. Renault, 431 S.W.2d 322, 326 (Tex. 1968) (holding city not liable for damage to cars caused by maintenance of nearby culvert because plaintiff did not show that the city knew that "flooding of the leased premises was resulting or was substantially certain to result from the maintenance of the road with the existing culvert.").
Thus, we must determine whether the Harris County entities proved, as a matter of law, that the flooding of plaintiffs homes was not "necessarily incident to or necessarily a result of" their intentional acts in designing and implementing the flood control plan for the White Oak Bayou watershed. Specifically, we are concerned with whether the Harris County entities were aware that flooding of plaintiffs' homes was "substantially certain" to occur if they abandoned the Pate plan before completing Phases III IV, and, instead, implemented the plan set forth in the Klotz report by placing the transition control structure in the bayou.
The Harris County entities produced evidence that, had the Klotz report indicated that the potential for flooding along the bayou would increase, they never would have adopted the plan and erected the transition control structure. In contrast, plaintiffs point to a letter dated August 9, 1989, in which Mr. James B. Green, director of the District, told Mr. Robert Highland, a homeowner in one of the affected subdivisions the following:
The Harris County Flood Control District is very aware of the house flooding potential in Creekside Estates South and many other subdivisions along White Oak Bayou. . . .
The Homeowners also argue that the Pate plan recognized the need for channelization in the plaintiffs' area in the event that development without detention ponds was permitted upstream from the homeowners, and, despite this knowledge, the District did not complete the Phase III channelization, even though Harris County had permitted the upstream development without detention. In essence, plaintiffs argue that the Pate plan itself is proof that the Harris County entities had knowledge that flooding would occur if the entire plan was not implemented.
This evidence presents a clear question of fact regarding whether the actions of the Harris County entities, in not completing the Pate plan, but in choosing to implement the Klotz plan instead, created a condition whereby the flooding of the plaintiffs' homes was substantially certain to occur.
The Harris County entities also argue that, in the last two years, they have enacted the very remedial measures that the plaintiff's expert, Peter Brown, determined were necessary. The Harris County entities argue that by taking these remedial measures, they have negated any intent to damage the plaintiffs' homes. Citing Tarrant County v. English , 989 S.W.2d 368, 374 (Tex. App.-Fort Worth 1998, pet. denied), the Harris County entities argue that subsequent remedial measures will negate intent as a matter of law. We disagree. In English , a landowner sued the county when diesel that was spilled from two storage tanks on county land migrated to his land and damaged it. Id. at 371-72. The court of appeals, noting that the county had taken measures necessary to remove the tanks, found that no taking or damaging had occurred, but that the landowner's claim sounded in negligence. Id. at 374. However, we do not agree that the presence of subsequent remedial measures was the deciding factor in the English case. More important to the court was the fact that the county, at the time it was contaminating the soil of its own property, did not know that the neighboring property was also being damaged. Id.
Therefore, we believe that, while subsequent remedial measures by the Harris County entities is some evidence that they did not intend to damage the plaintiffs, it does not negate the element of intent as a matter of law.
II. NUISANCE
The Harris County entities also contend that they are entitled to summary judgment on plaintiffs' nuisance claims. To constitute a nuisance, thereby creating potential liability for a governmental agency, the condition must substantially interfere with a person's use and enjoyment of land by causing unreasonable discomfort or annoyance to the user's ordinary sensibilities. Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 689 (Tex.App.-Tyler 1997, writ denied); Shade v. City of Dallas, 819 S.W.2d 578, 581-83 (Tex. App.-Dallas 1991, no writ). For an act of a governmental entity to qualify as a nuisance without being defeated by the doctrine of governmental immunity, the condition created by the entity must in some way constitute an unlawful invasion of property or the rights of others beyond that arising merely from its negligent or improper use. Shade , 819 S.W.2d at 581-82. Non-negligent, or intentional nuisance is actionable, and the City is not immune under the Texas Tort Claims Act. See Bible Baptist Church v. City of Cleburn , 848 S.W.2d 826, 829 (Tex.App.-Waco 1993, writ denied). Just as we have found there is a fact question on the issue of intent relating to inverse condemnation, we also find a fact question on the issue of intent relating to nuisance.
III. ACT OF GOD
There being a fact question regarding the Harris County entities' intent to damage plaintiffs on both the inverse condemnation and nuisance claims, we must reverse the case for further proceedings unless the Harris County entities prevail on the second ground asserted in support of their summary judgment, i.e., that they did not cause the flooding, but that it was the result of unprecedented rainfall, i.e., an act of God.
For a rainfall to constitute an act of God, it must be ". . . such an unusual or extraordinary rainfall as has no example or parallel in the history of rainfall in the general vicinity affected, or as affords no reasonable warrant or expectation that it will likely occur again, and so could not reasonably be expected, even at long intervals." State v. Malone , 168 S.W.2d 292, 300 (Tex.Civ.App.-Austin 1943, writ ref'd w.o.m.). "If . . . extraordinary inundations having occurred within the memory of men then living, the occurrence should be anticipated, and provision made against the danger likely to result from the works should a recurrence of the flood take place." Id. (quoting Gulf, C. S. F. Ry. Co. v. Pomeroy, 3 S.W. 722, 724 (Tex. 1887)).
Plaintiffs' expert, Larry Mays, testified that Tropical Storm Frances was not an unprecedented flood because it was "on the order of a ten-year frequency." Another plaintiffs' expert, Baxter Vieux, calculated that the Tropical Storm Frances produced between a 10- and 25-year flood event in the White Oak Bayou watershed. In contrast, defense expert, Andrew Yung, testified that Tropical Storm Frances "produced the highest rainfall magnitude experienced by residents in the upper Watershed since it has been developed [in the 1970's]." This level of rainfall, the Harris County entities argue, is between a 50- and 100-year rainfall event.
Given the disparity between the testimony of the expert witnesses about the likely frequency of a rainfall such as that produced by Tropical Storm Frances, a clear question of fact is presented. Therefore, the trial court erred by granting summary judgment on the grounds of "act of God."
IV. CONCLUSION REGARDING HARRIS COUNTY ENTITIES
Because the Harris County entities did not negate the element of intent as a matter of law on either the inverse condemnation claim or the nuisance claim, nor did they prove their "act of God" defense as a matter of law, the trial court erred by granting summary judgment in their favor. Accordingly, we reverse the inverse condemnation claims and the nuisance claims and remand for further proceedings.
On remand, the trial judge, not the jury, should decide whether there was a constitutional damaging. Only if the court answers the question in the affirmative should the case be presented to a jury to determine damages. See Harris Co. v. Felts, 881 S.W.2d 866, 870 (Tex.App.-Houston [14th Dist.] 1994, aff'd, 915 S.W.2d 482 (Tex. 1996).
THE MUDS' MOTIONS FOR SUMMARY JUDGMENT
Again, we note that to prove a constitutional taking or damaging by the MUDs, the plaintiffs must show that (1) the MUDS intentionally performed certain acts in the exercise of their lawful authority, (2) that resulted in a "taking"or damaging of property (3) for public use. State v. Hale , 146 S.W.2d at 736; City of Abilene v. Smithwick , 721 S.W.2d at 951. The MUDs moved for summary judgment, alleging, among other things, that they were entitled to summary judgment because the plaintiffs did not prove any intentional act. Indeed, the sole reference to the MUDs in appellants' brief provides that the Harris County entities , "with the assistance and knowledge of the MUDs," intentionally performed certain acts that allegedly caused the plaintiffs' damages. There is no allegation in the briefs that the MUDs themselves performed any intentional acts, nor is there any legal analysis or authority to show how or why the MUDs should be held accountable for the actions of the Harris County entities. As such, the briefing is inadequate to show that the trial court erred by granting summary judgment in favor of the MUDs. See Tex.R.App.P. 38.1(h); Franz v. Katy Indep. Sch. Dist. , 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Accordingly, we affirm the summary judgments granted in their favor.
ENGINEERING COMPANY'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs also sued Jones Carter, Inc., an engineering company involved in the development of Brookhollow subdivision. The engineering company moved for summary judgment based on the statute of repose, which the trial court granted.
The statute of repose applicable to engineers provides as follows:
A person must bring suit for damages for a claim listed in subsection (b) against a registered or licensed architect, engineer, interior designer, or landscape architect in this state, who designs, plans, or inspects the construction of an improvement to real property or equipment attached to real property, not later than ten (10) years after the substantial completion of the improvement or the beginning of operation of the equipment in an action arising out of a defective or unsafe condition of the real property, the improvement, or the equipment.
Tex. Civ. Prac. Rem. Code Ann. § 16.008(a) (Vernon 2002) (emphasis added). The purpose of the statute of repose is to protect those who design, install, or construct an improvement from facing never-ending potential liability based on that work. Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 761 (Tex. App.-Dallas 1997, writ denied). The statute of repose differs from traditional statutes of limitations in that the time period begins running when the improvement is substantially completed, rather then when the damage or injury occurs or is discovered. Id.; see also Gordon v. Western Steel Co., 950 S.W.2d 743, 745-46 (Tex. App.-Corpus Christi 1997, pet. denied).
As summary judgment proof, Jones Carter introduced the affidavit of J. R. Jones, an engineer for Jones Carter, who testified that the company was hired in 1982 by Brookhollow corporation to assist in developing section 5 of the business park. In connection with the job, Jones Carter prepared engineering drawings that led to the eventual construction of streets, waterlines, utility lines, sanitary sewer lines, drainage and detention facilities in Brookhollow West section 5. Jones Carter also designed and constructed a single street in Brookhollow West section 9. In connection with these projects, Jones Carter introduced Certificates of Substantial Completion, which indicated that the last of the projects was competed January 10, 1985, well over 10 years before suit was filed in this case.
Despite this evidence, plaintiffs contend there is a question of fact as to whether Jones Carter's work was substantially complete. Specifically, plaintiffs introduced evidence that in 1998, Jones Carter produced an estimate to Brookhollow Corporation about the cost of proposed improvements to a different section of Brookhollow West. Essentially, plaintiffs argue that, as long as there are sections of Brookhollow West yet to be developed, Jones Carter's work is not substantially complete.
We disagree. There is nothing in the record to indicate that Jones Carter was under a continuing obligation to perform work for Brookhollow Corporation, or that Brookhollow Corporation would choose to use Jones Carter if further improvements or development was performed. Jones Carter conclusively established that they substantially completed work in the affected sections of Brookhollow West in 1985, and have not participated in the design or construction of any improvements in the area since that time. Accordingly, the trial court properly granted summary judgment on Jones Carters' motion for summary judgment.
CONCLUSION
We affirm the summary judgments in favor of the MUDs and Jones Carter. However, we reverse the summary judgments in favor of the Harris County entities and remand the claims against the Harris County entities for further proceedings.