City of San Antonio v. Kopplow Development, Inc.
335 S.W.3d 288
Tex. App.2010Background
- Kopplow Development owns about 18.451 acres at the SE corner of Culebra Rd and NW Loop 410; City constructed a Regional Storm Water Detention Facility overlapping Kopplow’s easement.
- A א inflow wall was built across the easement; the facility includes an inflow wall, a spillway, and a berm; berm may flood Kopplow’s property in future, though the wall itself may not.
- City obtained a 207.513-acre drainage easement from Southwest Research Institute; Kopplow’s easement and the City’s drainage easement overlap.
- Kopplow filed inverse condemnation claim (May 27, 2004); City filed statutory condemnation counterclaim (June 25, 2004) regarding the inflow wall on Kopplow’s easement.
- Trial in March 2009; witnesses testified that the inflow wall did not cause additional damages to Kopplow’s remainder; expert valued damages to the easement taken at $4,600 and remainder damages at either $408,400 or $690,000 in the trial record.
- Jury found: part taken value $4,600; remainder damages of $690,000; trial court entered judgment; City appealed and Kopplow cross-appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for remainder damages | Kopplow contends evidence supports remainder damages from the taken easement. | City argues the inflow wall did not damage Kopplow’s remainder; damages are not supported. | Evidence legally insufficient; Campbell rule precludes remainder damages; remainder damages reversed |
| Campbell rule applicability to deny remainder damages | Kopplow can show damages under Campbell exception for indispensable taking and inseparability. | In this project, the taken easement is small, not a substantial part; damages are not inseparable. | Campbell rule applies to preclude remainder damages; Kopplow denied remainder damages |
| Prematurity of inverse condemnation claim | Inverse claim seeks damages arising from flooding and reclamation accrued pre-trial. | Isolated future flooding is not a taking; inverse claim premature. | Inverse condemnation claim premature; not ripe at this time |
| Cross-appeal on evidentiary and proximate-cause questions moot | Evidence exclusion and proximate-cause questions should be resolved in Kopplow’s favor. | If remainder damages are unrecoverable, related issues are moot. | Issues related to damages moot given lack of recoverable remainder damages |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for legal sufficiency on appeal)
- State v. Schmidt, 867 S.W.2d 769 (Tex. 1993) (severance damages and Campbell rule framework)
- Campbell v. United States, 266 U.S. 368 (U.S. 1924) (Campbell rule on severance damages in condemnation)
- State v. McCarley, 247 S.W.3d 323 (Tex.App.-Austin 2007) (distinguishes damages arising from part taken vs. use of adjoining lands)
- Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546 (Tex. 2004) (recurrence of flooding as a factor in takings; not a taking on a single flood)
- Howard v. City of Kerrville, 75 S.W.3d 112 (Tex. App.-San Antonio 2002) (floodplain impacts require recurrence to constitute a taking)
- Dahl ex rel. Dahl v. State, 92 S.W.3d 856 (Tex. App.-Houston [14th Dist.] 2002) (inverse condemnation claims cannot duplicate prior condemnation of the same property)
- City of La Grange v. Pieratt, 175 S.W.2d 243 (Tex. 1943) (presumed damages cover all foreseeably implied elements in condemnation actions)