City of Rollingwood, Texas v. Owen Brainard and Sally Brainard

This case arises from flooding on property belonging to Owen and Sally Brainard

that the City of Rollingwood allegedly caused. The Brainards sued the City for an intentional

constitutional taking. The City filed a plea to the jurisdiction, and the trial court denied the plea.

In its sole appellate issue, the City contends that the trial court erred in denying its plea to the

jurisdiction. We will affirm the trial court’s order denying the City’s plea to the jurisdiction.

BACKGROUND1

In early 2009, John Andrews filed an application with the City to plat his property

into two lots. As a condition for approval of his application, the City required Andrews to dedicate

a drainage easement on his property and install a “flume” to convey storm water from Pickwick

1 Unless otherwise noted, the following facts are undisputed.

Lane, a street bordering the property. Before the City approved the application, Andrews sold part

of his property to the Brainards. The Brainards’ property is situated downhill from what remained

of the Andrews property and from Pickwick Lane. After the Brainards refused to grant the easement,

the City waived the requirement in exchange for an additional payment of $2,500 from Andrews.

The City approved Andrews’s application with respect to the property he had not sold to the Brainards.

Colleen and Todd Preheim later purchased two lots, one of which was the Andrews

lot uphill from the Brainards. The Preheims wanted to build a large house on the lot neighboring

the Brainards’ property, and they filed a subdivision application and an application for a building

permit. The Preheims’ plans would increase the amount of impervious cover on their property, and

the Preheims’ engineers called for the construction of a detention pond to hold the excess runoff

and dissipate it. The City approved the Preheims’ applications, and the Preheims constructed a

drainage system on their property, including a detention pond. The Brainards allege that, after the

construction of the Preheims’ system, their yard now frequently floods and is unfit for the uses the

Brainards had intended for it.

Much of the debate in this case concerns a curb on Pickwick Lane. The City asserts

that a “break” in the curb has existed since a water line broke in 2005 and that runoff from the street

has flowed down onto what is now the Brainards’ property since that time. The Brainards, on the

other hand, allege that no “break” in the curb existed until the Preheims constructed their drainage

system. According to the Brainards, “the City worked together with the [Preheims] to create a

scenario . . . where all of the stormwater from Pickwick could enter the [Preheims’] drainage facility

and flow onto” the Brainards’ yard. The Brainards allege that this collusion between the City and

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the Preheims included “paving over the Pickwick curb” and that “[t]he City performed the work that

created these current roadway-curb conditions.”

The Brainards sued the City,2 bringing causes of action for an unconstitutional

taking (inverse condemnation) and nuisance.3 The City filed a plea to the jurisdiction, which the

trial court denied. This appeal followed.

STANDARD OF REVIEW

“Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and

thus is properly asserted in a plea to the jurisdiction.” Texas Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex. 2004); see Engelman Irrigation Dist. v. Shields Bros., Inc.,

__ S.W.3d __, No. 15-0188, 2017 WL 1042933, at *4 (Tex. Mar. 17, 2017) (“In Houston Belt and

Miranda, we held that sovereign immunity concerns jurisdiction and therefore ‘is properly asserted

in a plea to the jurisdiction.’”). “Where, as here, evidence is presented with a plea to the jurisdiction,

the court reviews the relevant evidence and may rule on the plea as a matter of law if the evidence

does not raise a fact issue on the jurisdictional question, a standard that generally mirrors the

summary-judgment standard.” Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex.

2016) (citing Miranda, 133 S.W.3d at 227–28). “Appellate courts reviewing a challenge to a trial

court’s subject matter jurisdiction review the trial court’s ruling de novo.” Miranda, 133 S.W.3d

2 The Brainards also sued the Preheims, but the Preheims are not parties to this appeal.

3 It is undisputed that the resolution of the Brainards’ takings claim is dispositive of their

nuisance claim. See Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 795 n.1 (Tex. 2016).

We also note that the Brainards originally brought a claim for alleged violations of the Texas Water

Code but later abandoned those claims.

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at 228. “When reviewing a plea to the jurisdiction in which the pleading requirement has been met

and evidence has been submitted to support the plea that implicates the merits of the case, we take

as true all evidence favorable to the nonmovant,” and we “indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.” Id.

DISCUSSION

Under the Texas Constitution, “[n]o 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(a). Governmental immunity does not bar a takings claim “even though the judgment

would require the government to pay money for property previously taken.” City of El Paso v.

Heinrich, 284 S.W.3d 366, 376 (Tex. 2009); see Kerr, 499 S.W.3d at 799 (“Sovereign immunity

does not shield the government from liability for compensation under the takings clause.”). To state

a valid takings claim, a plaintiff must allege: (1) intentional, affirmative government conduct;

(2) that results in property being taken; (3) for public use. See Kerr, 499 S.W.3d at 799; Guadalupe

Cty. v. Woodlake Partners, Inc., No. 04-16-00253-CV, 2017 WL 1337650, at *3 (Tex. App.—San

Antonio Apr. 12, 2017, no pet. h.) (mem. op.). The governmental entity must intend to take the

property or must be substantially certain that the taking will occur. See Kerr, 499 S.W.3d at 799.

Furthermore, the governmental entity must intend to take specific property—“in order to form the

requisite intent, the government ordinarily knows which property it is taking.” Id. at 800.

Here, the City argues that the Brainards have presented no evidence that the City

committed an affirmative act that caused the alleged flooding. According to the City, “the only

affirmative act taken by the City of Rollingwood was approval of the Preheims’ construction, which

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does not rise to the level of an intentional taking.” We disagree. The Brainards presented evidence

that the City itself, and not the Preheims, altered the curb on Pickwick Lane. In his affidavit, Owen

Brainard avers the following:

I understand that the City of Rollingwood is claiming in this case that, when my wife

and I bought Lot 1, there was a “break” in the curb on the north side of Pickwick

Lane that caused stormwater runoff from Pickwick Lane to enter Lot 2, cross over

Lot 2, and ultimately travel onto and across our property, Lot 1. This contention is

absolutely false.

***

[I]n the spring of 2015, after the City worked together with the neighbors to create

a scenario (including paving over the Pickwick curb) where all of the stormwater

from Pickwick could enter the neighbors’ drainage facility and flow onto our yard,

I have personally observed rainfall events that have cause[d] extensive flooding of

our yard, such that it has been rendered unusable for its intended and anticipated

purposes.

***

The City performed the work that created these current roadway-curb conditions.

Because this affidavit is evidence that the City altered the curb in a way that increased the amount

of water that flowed onto the Brainards’ property, we conclude that the Brainards have raised a fact

question as to whether the City committed an affirmative act that caused the Brainards’ flooding.

The City also argues that the Brainards presented no evidence that the City intended

to cause the Brainards’ flooding. According to the City, the record demonstrates that it relied on

engineers’ reports when it granted the Preheims’ permit applications. The City contends that these

reports show that the construction of the Preheims’ drainage system, with its detention pond, would

prevent flooding, not cause it.

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Again, we must disagree. The Brainards presented the affidavit of Chris Randazzo,

a professional engineer, who avers the following:

I have reviewed the February 2011 engineering report submitted to the City of

Rollingwood . . . . Under [the conditions described in that report], it appears that

storm water runoff from the surrounding western area was collected in Pickwick

Lane and conveyed along Pickwick Lane and around the subject subdivision via

Hubbard Circle.

I have visited the site and observed that the current conditions are such that the

Pickwick roadway is now flush with a flattened length of curb at the western border

of the site, such that, today, an offsite drainage area of an additional approximate

2.50 acres contributes off-site storm water runoff that is collected in Pickwick Lane

conveyed across the subject tracts.

***

I have also reviewed the attached photo . . . . This photo supports the findings in the

February 2011 report that storm water runoff from the Pickwick roadway was being

conveyed in the roadways around the subject tracts at that time.

Randazzo’s affidavit then discusses a report from an engineering firm that the

Preheims submitted to the City in October 2012. This report states that there was “a failure in the

roadway pavement (a sag)” and a “cracking of the curb” on Pickwick Lane. The report predicts that

if this “failure” were repaired, the drainage to the Preheims’ property would decrease because more

water would continue flowing down Pickwick Lane. The report includes two charts showing

different scenarios. One scenario, called “S2,” is based on the conditions that existed at the time of

the report as described by the engineering firm, which included the “failure.” Given these conditions,

the chart shows the existing and proposed discharge during major rain events:

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2-Year Discharge 100-Year Discharge

Existing Proposed Existing Proposed

To Exist Drainage Feature 5.4 4.5 21.8 21.5

To Lot to Northwest 0.1 0.1 0.5 0.2

To Lot to East (west P.L.) 0.3 0.2 1.1 0.8

To Pickwick 0.7 0.5 2.4 1.6

Another scenario, “S1,” is based on the conditions that would allegedly exist if the “roadway were

fixed and the run-off in Pickwick were routed around the tract.” Again, the chart gives the existing

and proposed discharge levels:

2-Year Discharge 100-Year Discharge

Existing Proposed Existing Proposed

To Exist Drainage Feature 1.4 1.4 5.7 5.7

To Lot to Northwest 0.1 0.1 0.5 0.2

To Lot to East (west P.L.) 0.3 0.2 1.1 0.8

To Pickwick 0.7 0.5 2.4 1.6

The charts show that less water would flow into the Preheims’ “drainage feature” in the S1 scenario

(with the street repaired) than in the S2 scenario (without the repair).

Randazzo describes these charts and their implications as follows:

This report reflects [two] “scenarios” based on two possible “existing conditions.”

One scenario (S1) assumes that no offsite storm water runoff enters the site from the

Pickwick roadway. The other scenario (S2) assumes that an additional 2.23 acres of

storm water runoff enters the site from the Pickwick roadway. According to the

calculations in this report, if the true “existing condition” is represented by scenario

S1, and the post-development condition is represented by S2, then the project

significantly increases peak flows onto the [Brainards’] tract, and does not comply

with state law or City of Rollingwood regulations.

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In other words, according to Randazzo, the Preheims’ engineering report shows that more water

will flow onto the Preheims’ property (and thence to the Brainards’ property) if water flows from

Pickwick Lane onto the Preheims’ property. While the Preheims’ engineering report states that

water was already flowing from Pickwick Lane through a “failure” in the curb before the

construction occurred, the affidavit of Owen Brainard, as discussed above, avers that, in fact, there

was no failure in Pickwick Lane until the City altered the curb to allow additional water to flow

onto the Preheims’ property. Thus, according to Owen Brainard, the S1 scenario existed before

construction, and the S2 scenario exists after the construction. And Randazzo avers that significantly

more water will flow onto the Brainards’ property in the S2 scenario than in the S1 scenario.4

Considering this evidence as a whole and indulging every reasonable inference in the

Brainards’ favor, we conclude that the Brainards have raised a fact question as to whether the City

was substantially certain that its alleged alteration of the Pickwick curb would cause flooding on

the Brainards’ property. We further conclude that the Brainards have raised a fact question as to

whether the City’s intention was specific—that is, it knew with substantial certainty that the

Brainards’ property, in particular, would be subject to flooding. Therefore, the trial court did not err

in refusing to grant the City’s plea on the ground that the Brainards failed to present evidence to

support their allegations of an intentional taking.

We also note that the City 4 had sought an easement on what later became the Brainards’

property while it still belonged to Andrews. The Brainards argue that this shows that the City “had

designs” on their property, distinguishing this case from Kerr. Cf. Kerr, 499 S.W.3d at 803 (“[T]here

was no evidence that the County ever had designs on the homeowners’ particular properties, and

intended to use those properties to accomplish specific flood-control measures.”).

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Finally, the City argues that it did not damage the Brainards’ property for “public use”

because the only affirmative conduct it engaged in was approving “the Preheims’ private use of their

land.” However, as discussed above, we have concluded that the Brainards presented evidence that

the City went beyond merely approving the Preheims’ applications; there is evidence that the City

actually altered the curb to allow more water to flow out of Pickwick Lane to the subject properties.

In other words, the Brainards have presented evidence that, at a minimum, raises a fact question

with regard to whether the City decided to use the Brainards’ property to alleviate street flooding.

Assuming the Brainards’ allegations are true, as we must when reviewing the trial

court’s ruling on this plea to the jurisdiction, we conclude that alleviating street flooding is a

“benefit” the public received from diverting water out of the street and onto the Brainards’ property.

See Kerr, 499 S.W.3d at 801 (“We have recognized that a taking may occur if an injury results

from either the construction of public works or their subsequent maintenance and operation . . . .”)

(internal quotation marks omitted); Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 478

(Tex. 2012) (“Hearts Bluff rightfully acknowledges that water management and conservation is a

legitimate public use.”); Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004) (“At

the heart of the takings clause lies the premise that the government should not ‘forc[e] some people

alone to bear public burdens which, in all fairness and justice, should be borne by the public as a

whole.’”) (quoting Steele v. City of Hous., 603 S.W.2d 786, 789 (Tex. 1980)); City of Amarillo v.

Burch, 369 S.W.3d 684, 686 (Tex. App.—Amarillo 2012, no pet.) (“A governmental entity’s

intentional building of streets, drainage systems, and other infrastructure that divert sufficient

water on or into property of another with the destructive force averred here raises a question of fact

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regarding whether a taking has occurred.”); City of Borger v. Garcia, 290 S.W.3d 325, 330 (Tex.

App.—Amarillo 2009, pet. denied) (“The key consideration in assessing whether a particular taking

was for a public use is whether the public is bearing a cost for which it received a benefit.”).

In summary, we have concluded that the Brainards presented evidence raising a fact

question as to whether the City intentionally engaged in affirmative conduct that resulted in the

Brainards’ specific property being taken for public use. Accordingly, we conclude that the trial court

did not err in denying the City’s plea to the jurisdiction, and we overrule the City’s sole appellate issue.

We affirm the trial court’s order denying the City’s plea to the jurisdiction.