Harris County Flood Control District v. Kerr, Edward A. and Normal
445 S.W.3d 242
Tex. App.2013Background
- Appellees Edward Kerr, Norma Kerr, and 200+ neighbors sought damages from flooding in the White Oak Bayou watershed due to upstream development and local flood-control decisions.
- Flooding occurred during Tropical Storm Frances (1998), Tropical Storm Allison (2001), and an unnamed 2002 storm; appellants point to upstream development and watershed flood-control measures as causes.
- White Oak Bayou flood-control history includes the Corps’ lower-bayou project (concrete-lined channel) and Harris County/HCFD plans for upper-bayou mitigation (Pate Plan) funded locally via taxes and impact fees.
- The Pate Plan aimed to eliminate flooding up to a 100-year event by regional detention facilities and channel improvements; later Klotz Plan proposed a scaled-back approach with different flood-protection levels.
- Klotz’s 1990s study updated models, suggesting higher flows; appellants adopted parts of the Klotz Plan and rejected the full Pate Plan, asserting it would not increase downstream runoff.
- The trial court denied the combined plea to the jurisdiction and motion for summary judgment, based in part on law-of-the-case concerns, which the court of appeals later rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Law-of-the-case binding effect | Kerr II law bound trial court to deny statu s quo. | Kerr II was withdrawn; law-of-the-case does not bind. | Reversed; trial court erred appealing based on law-of-the-case. |
| Intent element of takings | Kerrs raised fact issues showing intent to take via upstream development and Klotz plan choices. | Talbott’s affidavit negates intent; reliance on Klotz certifications undermines claim. | Question of fact on intent exists; not precluded by immunity. |
| Public use element and causation | District acted with intent to take/damage for public use; causation shown by studies and expert Dr. Mays. | Causation not proven; events attributable to weather and other factors; no specific intent to flood. | Causation and public-use elements create issues of fact; takings claim survives summary-judgment scrutiny. |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) (requires knowledge of substantial certainty of harm for intent)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex.2009) (mere awareness of damage is not intent)
- Jennings, 142 S.W.3d 310 (Tex.2004) (heightened intent standard for takings)
- Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546 (Tex.2004) (recurrence as a factor in assessing substantial certainty)
- City of Dallas v. Jennings, 142 S.W.3d 310 (Tex.2004) (takings and nuisance interplay)
- Kerr v. Tex. Dept. of Transp., 45 S.W.3d 248 (Tex.App.-Houston [1st Dist.] 2001) (initial takings against TxDOT; law-of-the-case distinctions)
- Kerr v. Harris Cnty., 177 S.W.3d 290 (Tex.App.-Houston [1st Dist.] 2005) (supersedes Kerr II on rehearing; jurisdictional posture)
- City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex.App.-El Paso 2011) (involving takings and nuisance; evidence required for intent)