Frank and Shelley Thornton v. Northeast Harris County MUD 1, 447 S.W.3d 23

MUD condemned a 0.6569-acre drainage easement on the Thorntons’ 1.607-acre tract to facilitate a public drainage project; initial damages awarded were approximately $2,300.
Thorntons counterclaimed inverse condemnation, nuisance, trespass, and negligent trespass based on alleged lead-contaminated soil from the drainage project.
MUD asserted governmental immunity and moved for traditional and no-evidence summary judgment, arguing no waiver and lack of intent/public-use elements; Thorntons argued there was a constitutional taking and a viable takings theory.
Trial court granted MUD’s traditional and no-evidence motions for summary judgment; the court did not rule on the plea to the jurisdiction.
Thorntons appealed the trial court’s immunity-based summary judgment rulings and the court determined it had interlocutory jurisdiction to review those rulings; the appeal proceeded on the merits.
The court ultimately held that the negligent-trespass claim is barred, but the pleadings and record sufficiently supported inverse condemnation, nuisance, and trespass claims to warrant reversal of the summary judgment as to those counterclaims and remand for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether MUD’s immunity defense bars inverse condemnation, nuisance, and trespass claims	Thorntons allege constitutional taking via art. I, §17 and related counterclaims	MUD contends no waiver of immunity absent intentional taking and public use	Pleadings sufficient to invoke jurisdiction; no-evidence MSJ improper; reversal/remand for those claims
Whether the negligent trespass claim can support waiver of immunity	Thorntons plead negligent trespass as a takings theory	MUD argues takings cannot be based on negligence	Negligent trespass barred; summary judgment affirmed on this claim
Whether no-evidence summary judgment can challenge jurisdictional facts	Green Tree reasoning supports no-evidence challenge to jurisdiction	No-evidence MSJ proper to attack jurisdictional elements	No-evidence cannot challenge jurisdictional facts; trial court erred granting no-evidence MSJ as to inverse condemnation, nuisance, trespass; harm analysis favored Thorntons
Whether Thorntons’ pleadings sufficiently alleged the elements of an inverse condemnation taking (intent and public use)	Thorntons alleged MUD’s acts caused identifiable harm and public use	Immunity requires proof of intentional taking with public use; Thorntons failed to prove intent/public use	Pleas and evidence sufficient to allege intent and public use; takings claims viable on appeal

City of Houston v. Estate of Jones, 388 S.W.3d 663 (Tex. 2012) (immunity/plea to the jurisdiction focuses on substance, not caption)
Lazarides v. Farris, 367 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012) (interlocutory appeal in immunity context)
Jennings v. City of Dallas, 142 S.W.3d 310 (Tex. 2004) (heightened intent standard in takings claims)
Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2012) (no-evidence jurisdiction challenges improper where merits implicate jurisdiction)
General Services Commission v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) (definition of inverse condemnation elements and public use)
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (taking must be intentional; mere negligence not sufficient)
Loyd v. ECO Resources, Inc., 956 S.W.2d 110 (Tex. App.—Houston [14th Dist.] 1997) (damage from public works can be within public-use taking; not purely negligent)
Harper v. City of Houston, 216 S.W.3d 393 (Tex. 2009) (public use inquiry and benefits to public)
Gragg v. Tarrant Regional Water Dist., 151 S.W.3d 546 (Tex. 2004) (definition of public use and intent in takings)
Dyer v. Texas Elec. Serv. Co., 680 S.W.2d 884 (Tex. App.—El Paso 1984) (negligence generally not a taking; construction/operational activities may be)