510 S.W.3d 121
Tex. App.2016Background
- In 2006 heavy rains revealed flood risks in Socorro, Texas; developers built Valley Ridge Subdivision in the Sparks Arroyo flow path and it flooded in 2006.
- Patti Jo Neighborhood residents (Appellees) had lived decades without prior flooding and were denied flood insurance as not flood-prone.
- In 2009 the City of Socorro built a diversion channel to redirect Sparks Arroyo flows around Valley Ridge toward land east of Thunder Road.
- In September 2013, after extreme rain, Socorro closed Thunder Road and erected two ~4-foot sand embankments to protect Valley Ridge, allegedly funneling water, mud, and debris into the Patti Jo Neighborhood, damaging homes.
- Appellees sued under the Texas Constitution takings clause (art. I, §17) and for nuisance, alleging the City intentionally diverted water and was "substantially certain" its actions would damage their properties; the City filed a plea to the jurisdiction arguing pleadings lacked required intent and causation.
- The trial court denied the plea; on appeal the court reviewed only the face of the Second Amended Petition (no jurisdictional evidence) and held the pleadings sufficiently alleged a takings claim and related nuisance claim to waive governmental immunity and proceed to discovery/trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Valid takings claim from 2009 diversion ditch | 2009 ditch (together with later acts) intentionally diverted arroyo toward Plaintiffs; City was substantially certain damage would result | 2009 ditch only created a possibility of future flooding; no actual invasion or required intent alleged | Pleading sufficient when read as whole (2009 diversion + 2013 actions); Appellees alleged an invasion as of Sept. 2013 and alleged intent adequately for pleading stage |
| 2. Valid takings claim from 2013 temporary embankments | 2013 embankments funneled waters onto Plaintiffs’ homes; intent and public-use allegations pleaded | Single flood event insufficient; temporary measures cannot support a taking without recurrent floods or permanence | Multiple floods not a pleading-stage requirement; single event can support a pleaded takings claim if intent and causation sufficiently alleged |
| 3. Nuisance claim tied to takings claim | Nuisance arises from same intentional diversion and funneling conduct | If takings claim fails, nuisance fails | Because takings pleading is sufficient, nuisance claim survives plea to jurisdiction |
Key Cases Cited
- Ehler v. LVDVD, L.C., 319 S.W.3d 817 (Tex. App.—El Paso 2010) (defines arroyo and discusses flood context)
- City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004) (governmental immunity does not bar takings claims)
- Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591 (Tex. 2001) (takings claim elements and immunity waiver)
- Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546 (Tex. 2004) (intent standard: government must know harm is substantially certain; discussion of recurring floods as probative)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (intent requirement for constitutional takings)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (awareness of mere possibility is insufficient for intent)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012) (pleading must invoke immunity waiver)
- City of El Paso v. Mazie’s, L.P., 408 S.W.3d 13 (Tex. App.—El Paso 2012) (takings pleadings: consider petition as whole; recurrence is a merits issue)
- Miranda v. Tex. Dep’t of Parks & Wildlife, 133 S.W.3d 217 (Tex. 2004) (pleading sufficiency and plurality discussion on pleading intent/gross negligence)
- Brazos River Authority v. City of Graham, 354 S.W.2d 99 (Tex. 1962) (single flood may limit damages to that event; recurrence relevant to proof)