City of Carrollton, Texas v. Milan Hamrla, Petra Chudejova, Michael and Laura Brewer, Dalia Chavarria, Diane and Gene Hines, and Keith Effert, 02-15-00119-CV

Background

Residents of Barclay Drive in Carrollton experienced a continuing global slope failure (landslide) along Dudley Branch Creek after heavy rains in May 2009; earth from plaintiffs’ lots moved onto the city's Dudley Branch right-of-way and under the channel.
Geotechnical reports (Terracon) and plaintiffs’ experts attribute the failure to groundwater/seepage, saturated clay soils, inadequate drainage, an overly steep slope, and an underperforming retaining wall; reported factor of safety was near 1.0–1.2 (unsafe).
Carrollton owned/controlled relevant infrastructure: Dudley Branch channel, a sanitary-sewer easement where a retaining wall was sited, and subdivision drainage; plaintiffs allege the city violated its own stormwater/erosion-control standards (ordinances and design standards) and failed to require or install required French drains.
Plaintiffs contend the city had notice and warnings (internal plans, an Erosion Control Master Plan, prior wall problems, a 2008 “dangerous building” notice) yet failed to investigate or remediate, and that documents relevant to city actions/inspections are missing.
Claims asserted: inverse condemnation (taking/damage of earth and loss of use), negligence under the Texas Tort Claims Act (use/operation of motor-driven equipment in maintaining drainage), and declaratory relief to define the city’s duties for future maintenance and repair.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Subject-matter jurisdiction over takings claim (inverse condemnation)	City knowingly violated its own drainage/retaining-wall standards and thus was substantially certain its actions would cause slope failure and a taking of earth; district court should have jurisdiction	City argues it did not know, could not have known, and was not substantially certain its actions would cause specific damage	Appellees argue the evidence raises fact issues of city knowledge/intent so plea to jurisdiction should be denied and jurisdiction exists (district court has jurisdiction)
Whether earth movement constituted a taking	Earth from plaintiffs’ lots now sits on/under city ROW; removal/loss of lateral support and physical appropriation of soil is a compensable taking	City disputes characterization of movement as a taking and/or causation by city acts	Appellees assert established elements of a physical taking/damage sufficient to proceed (trial fact issues remain)
Waiver of sovereign immunity for negligence (TTCA)	City’s construction/maintenance used motor-driven vehicles/equipment; negligence in drainage maintenance proximately caused property damage so immunity waived	City contends plaintiffs failed to plead or show requisite use of motor-driven equipment by employees sufficient to waive immunity	Appellees point to city maintenance/repairs performed with motor equipment and to standards violated — factual disputes preclude dismissal on jurisdictional grounds
Jurisdiction for declaratory relief	Plaintiffs seek declaration of city duties under ordinances and easement law; claims are ancillary to takings/negligence claims already in court	City would limit jurisdiction if DJA were sole basis	Appellees argue declaratory relief is proper because it concerns rights/obligations under municipal ordinances and falls within court’s jurisdiction given the other claims

Key Cases Cited

City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004) (takings liability can arise when the government knows specific damage is substantially certain to result)
Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546 (Tex. 2004) (definition of physical appropriation and takings principles)
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) (inverse condemnation principles and standards of review)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidence showing municipal knowledge and reliance on professional certifications can be dispositive on intent/knowledge)
State v. Brownlow, 319 S.W.3d 649 (Tex. 2010) (examples of takings where earth was appropriated for public use)
Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012) (takings doctrine applied to natural resources beneath property)