Frаnk and Shelley THORNTON, Appellants v. NORTHEAST HARRIS COUNTY MUD 1, Appellee.
No. 14-13-00890-CV.
Court of Appeals of Texas, Houston (14th Dist.).
July 24, 2014.
Rehearing En Banc Overruled Sept. 25, 2014.
23
Charles Black McFarland, Houston, for Appellee.
Panel consists of Justices BOYCE, CHRISTOPHER, and BROWN.
OPINION
MARC W. BROWN, Justice.
Appellee Northeast Harris County MUD 1 filed an eminent domain suit against appellants Frank and Shelley Thornton. The Thorntons brought counterclaims for inverse condemnation, nui-
MUD also filed traditional and no-evidence motions for summary judgment. In its traditional motion, MUD argued that there was no legislative waiver of its governmental immunity and that the Thorntons’ counterclaim for negligent trespаss fails as a matter of law because negligent conduct cannot give rise to a constitutional taking sufficient to waive immunity. In its no-evidence motion, MUD asserted that the Thorntons’ counterclaims for inverse condemnation, nuisance, and trespass are barred by governmental immunity “[i]n the absence of an intentional act resulting in the taking of private property for public use.” Specifically, MUD asserted that the Thorntons had not offered any evidence of MUD‘s intent to contaminate or erode their property, and of how contaminating or eroding their property serves a public use.
The trial court did not rule on MUD‘s plea to the jurisdiction but granted its motions for summary judgment. The Thorntons noticed their appeal from the trial court‘s order granting MUD summary judgment as to the Thorntons’ counterclaims. MUD filed an emergency motion for involuntary dismissal of appeal, which wе carried with the case. After concluding that we have jurisdiction over this interlocutory appeal, we deny MUD‘s motion to dismiss, and affirm in part, reverse in part, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
The developer of a 380-acre master planned development sought approval from MUD of its plan to mitigate the impact from its stormwater drainage. MUD adopted the proposed drainage and retention plan, and the developer began construction work to tie into an existing ditch on the Thorntons’ property in February 2011. However, an investigation revealed that MUD did not have a record easement for the existing drainage ditch. In July 2011, MUD filed an eminent domain suit to acquire a 0.6569-acre drainage easement on the Thorntons’ 1.607-acre tract of land. A statutory damages hearing was held, and the court-appointed special commissioners awarded the Thorntons approximately $2300 in damages.
The Thorntons filed an objection to the award. When the Thorntons refused to allow MUD‘s contractors back onto their property to complete MUD‘s project, MUD filed an emergency motion for writ of possession, and the trial court granted immediate possession of the easement to MUD.
MUD moved for partial summary judgment with regard to its “right to take,” which the trial court granted. In the meantime, trial had been set for the remaining compensation issue. MUD then moved for no-evidence summary judgment, asserting that the Thorntons had no evidence as to market value. The Thorntons responded and attached exhibits, to which MUD filed objections. The trial court granted in part and denied in part MUD‘s objections, but denied MUD‘s motion for no-evidence summary judgment.
In July 2013, the Thorntons filed a supplemental answer and original counterclaim asserting a claim for inverse condemnation under
MUD filed a plea to the jurisdiction, arguing that it retained its governmental immunity from the Thorntons’ counterclaims because they cannot show the requisite constitutional taking elements of intent and public use. The Thorntons responded.
Within a single document, MUD also filed traditional and no-evidence motions for summary judgment, arguing that it enjoyed governmental immunity, that the Thorntons’ negligent trespass claim failed as a matter of law to give rise to a constitutional taking sufficient to waive immunity, and that the Thorntons had presented no evidence of the requisite constitutional taking elements of intent and publiс use.1 MUD did not attach any evidence to its motions. The Thorntons again responded and attached exhibits. Although the Thorntons asserted MUD‘s no-evidence motion was improper because it required them to marshal all of their evidence, they also argued that they had produced sufficient evidence to raise a fact issue on intent and public use. MUD did not reply to or file any objections to the Thorntons’ evidence.
On September 30, 2013, the trial court held a hearing on MUD‘s plea and summary judgment motions. At the hearing, both sides indicated they would seek immediate appeal of adverse rulings. On October 6, 2013, the trial court granted MUD‘s traditional and no-evidence motions for summary judgment. Within its order, the trial court indicated that per “stipulations” it was incorporating two particular prior evidentiary rulings, granting MUD‘s motion to strike, and striking the portion of the summary judgment record as to which it sustainеd MUD‘s objections. The trial court did not rule on MUD‘s plea to the jurisdiction, and on October 9, 2013, signed an order denying the Thorntons’ request for expedited oral hearing on MUD‘s plea.
This interlocutory appeal followed. In this court, MUD filed an emergency motion for involuntary dismissal of appeal, arguing that the Thorntons are not entitled to interlocutory appeal of the trial court‘s summary judgment order under
On appeal, the Thorntons argue the following. First, as a threshold matter, they contend that this court has interlocutory jurisdiction because this is an appeal of a summary judgment order based on governmental immunity. Second, the Thorntons argue that the trial court erred in excluding certain portions of their summary judgment evidence. Third, they contend that the trial court erred in granting MUD‘s motions for traditional and no-evidence summary judgment. The Thorntons argue that negligent trespass is actiоnable against the government. With regard to MUD‘s no-evidence motion, the Thorntons assert that a no-evidence summary judgment is an improper vehicle to challenge jurisdictional facts, and that, in any event, their evidence raised a genuine fact issue as to whether MUD acted intentionally with regard to the lead contamination and as to whether MUD‘s conduct served a public use.2 Fourth, the Thorntons re-
quest that they be allowed to replead any pleading deficiencies.
II. JURISDICTION
As a threshold issue, we must determine whether we have appellate jurisdiction over this interlocutory appeal. We conclude that we do.
Pursuant to
Here, the Thorntоns alleged in their petition that MUD‘s taking, damaging, and destroying their property was in the nature of an inverse condemnation violating
MUD filed a plea to the jurisdiction, arguing that there was no legislative waiver of its governmental immunity; it only could be sued for claims rising to the level of a constitutional taking under
MUD also filed “Traditional and No-Evidence Motions for Summary Judgment on Defendants’ Counterclaims.” In the traditional portion of its combinеd filing, MUD argued that there was no legislative waiver of its governmental immunity and that the Thorntons’ claim for negligent trespass failed as a matter of law because a constitutional taking sufficient to waive immunity cannot be based on a theory of negligence. Within the no-evidence portion, MUD again argued that the Thorntons “may sue [MUD] only if the alleged acts rise to the level of a constitutional taking under Article I, Section 17,” repeating that “[i]n the absence of an intentional act resulting in the taking of private property for public use, [the Thorntons‘] claims are barred by governmental immunity.” MUD then asserted that the Thorntons had failed to produce any evidence of certain essential elements of a constitutional taking—MUD‘s intent to contaminate or erode the Thorntons’ property and how such alleged contamination or erosion serves a public use.
Althоugh MUD styled its later pleading as motions for summary judgment, separated out the negligent trespass claim in the traditional motion, and attacked the rest of the Thorntons’ counterclaims within the procedural vehicle of a no-evidence motion, after comparing the substance of MUD‘s plea with the substance of its summary judgment motions, we conclude that MUD presented essentially the same immunity-based arguments with respect to the Thorntons’ counterclaims in both filings. See City of Houston v. Atser, L.P., 403 S.W.3d 354, 359 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (op. on reh‘g) (discussing Jones and concluding city‘s later filing styled as summary judgment motion “merely restated the same grounds” as in its earlier plea to the jurisdiction—therefore, where city had failed to timely appeal denial of plea, it could not appeal later denial of summary judgment under
Despite the lack of a ruling on MUD‘s plea, the Thorntons can appeal and this cоurt has interlocutory jurisdiction to review the trial court‘s order granting MUD summary judgment on immunity-based grounds. See
III. ANALYSIS
Although this is an appeal from a summary judgment order, the trial court made its ruling in the context of MUD‘s jurisdictional challenge based on governmental immunity, so we apply the standards of review and the burdens of proof applicable to jurisdictional pleas. See Lazarides, 367 S.W.3d at 797.
A. Standard of review
Governmental “immunity from suit defeats a trial court‘s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).4 The jurisdictional
A summary judgment motion challenging jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. See id. When such a motion challenges the sufficiency of the pleadings, we determine whether the plaintiff has met his burden by pleading facts that affirmatively demonstrate the trial court‘s subject matter jurisdiction. Miranda, 133 S.W.3d at 226. In doing so, we construe the pleadings liberally in favor of the pleader, look to the pleader‘s intent, and accept as true the factual allegations in the pleadings. Id. at 226, 228. If the pleadings are insufficient to establish jurisdiction but do not affirmatively establish an incurable defect, the plaintiff should be afforded an opportunity to replead. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007); Miranda, 133 S.W.3d at 226-27. However, if the pleadings affirmatively negate the existence of the trial court‘s jurisdiction, then such a motion may be granted without allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.
If the plaintiff has alleged sufficient jurisdictional facts, the governmental entity also may challenge the existence of the jurisdictional facts. See id. The standard of review for a jurisdictional plea or motion based on evidence “mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228. Under this standard, we credit as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant‘s favor. Id. The movant must assert the absence of subject matter jurisdiction and present conclusive proof that the trial court lacks subject matter jurisdiction. Id. Proof is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the mоvant discharges this burden, the nonmovant then must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained. See Miranda, 133 S.W.3d at 228. If the movant does not conclusively disprove the challenged elements, then the trial court cannot grant such motion and the fact issues will be resolved by the factfinder. See id. at 227-28.
B. Inverse condemnation
C. “Negligent trespass” claim
Within its traditional summary judgment motion, MUD challenged the Thorntons’ “negligent trespass” claim on the basis that a constitutional taking cannot be based on negligence. According to MUD, the Thorntons’ “negligent trespass” claim failed to invoke the trial court‘s jurisdiction as a matter of law. We agree.
The Texas Supreme Court has explained the intent element of an inverse condemnation claim is satisfied by proof that the governmental unit (1) knows that the specific act is causing identifiable harm or (2) knows that the specific property damage is substantially certain to result from authorized government action—that is, that the harm is necessarily incident to, or necessarily a consequential result of the government‘s action. City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004) (“This definition comports with the definition of ‘intent’ in the Restatement of Torts....“). In order to sufficiently allege the intent element for a takings claim, it is not enough merely to allege that the act causing the damage was intentional. See id. at 313-14. However, it is not necessary to show that the governmental entity intended to cause the damage. Id. at 314. Rather, a party must allege the governmental entity knew that a specific act was causing identifiable harm, or at least knew that the damage was substantially certain to occur. See id. Additionally, the Texas Supreme Court repeatedly has held that acts of mere negligence will not support a taking. City of San Antonio v. Pollock, 284 S.W.3d 809, 820 (Tex. 2009) (“[T]he government‘s ‘mere negligence which eventually contributes to the destruction of property is not a taking‘; rather, the government must act intentionally.” (footnote omitted)); Gragg, 151 S.W.3d at 554 (“[W]e strive to avoid what would be anomalous result if the State, an entity otherwise generally entitled to immunity for negligence, were subject to liability for something less than intentional behavior.“); Jennings, 142 S.W.3d at 313; City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997).
“A trespass is usually regarded as an intentional tort in the sense that it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation.” Harris Cnty. v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Few cases have addressed the viability of an independent claim for “negligent trespass.” Compare Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 298 S.W.3d 436, 448 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding trespass claim predicated on negligent failure to act rather than on commission of “an intentional act that violates a property right or would be practically certain to have that effect” fails as matter of law), with Watson v. Brazos Elec. Power Co-op., Inc., 918 S.W.2d 639, 645-46 (Tex. App.—Waco 1996, writ denied)
The Thorntons primarily argue that MUD‘s reliance on Jennings for the proposition that an intent requirement appliеs to their “negligent trespass” claim is misplaced because Jennings “had nothing to do with trespass but instead involved eminent domain and nuisance.”5 However, we decline to read Jennings so narrowly. Instead, Jennings indicated that the heightened intent requirement would apply whenever a plaintiff‘s theory of recovery is based on the governmental entity‘s physical damage of private property in order to confer a public benefit, i.e., a constitutional taking. See 142 S.W.3d at 314; City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (“In [Jennings], we held that a heightened intent standard is indeed necessary to support a takings claim....“). To that end, where a plaintiff has alleged trespass in the context of a constitutional taking, Texas courts also have applied the Jennings standard. See, e.g., City of El Paso v. Ramirez, 431 S.W.3d 630, 635, 639-40 (Tex. App.—El Paso 2014, no pet.); City of Midland v. Walton, No. 11-08-00053-CV, 2008 WL 5100942, at *2-3 (Tex. App.—Eastland Dec. 4, 2008, pet. denied) (mem. op.). In their petition, the Thorntons expressly alleged that MUD‘s “trespass constitutes a taking of their land for public purposes.” The Thorntons then incorpоrated this “taking” allegation into their “negligent trespass” claim.
Within their “negligent trespass” claim, the Thorntons alleged that “[i]n addition to other counts, [MUD] negligently trespassed on [their] property” and “entered upon [their] property and began excavating.” (Emphasis added). The Thorntons did not provide any further details as to how MUD allegedly entered onto their property or performed its excavation in a negligent manner. Assuming solely for purposes of our analysis without deciding the viability of a “negligent trespass” claim, and construing the pleadings liberally in the Thorntons’ favor, looking to their intent, and accepting their factual allegations as true, see Miranda, 133 S.W.3d at 226, 228, we conclude that to the extent they are attempting to bring a takings claim based on a negligence theory,6 their “negligent trespass” claim is barred. See Gragg, 151 S.W.3d at 554; Jennings, 142 S.W.3d at 313.
The only basis for waiver of governmental immunity the Thorntons alleged in their petition was article I, section 17, of the Texas Constitution. Because the Thorntons asserted no other grounds for a
On appeal, the Thorntons now contend that “negligent trespass” would be cognizable under the provision for negligence in the
We overrule the Thorntons’ third and fourth issues as to their “negligent trespass” claim.
D. Inverse condemnation, nuisance, and trespass claims
With regard to the Thorntons’ claims for inverse condemnation, nuisance, and trespass, MUD asserted that they had to plead and prove the elements of a constitutional taking in order to pierce MUD‘s governmental immunity. Except as to “negligent trespass,” MUD did not focus its jurisdictional attack on the Thorntons’ pleadings—i.e., MUD did not specifically argue in thе trial court that the Thorntons insufficiently had pleaded the intent and public use elements of their takings claims or explain how those claims fail as a matter of law.9 Instead, MUD challenged the com-
1. The Thorntons’ pleadings sufficiently invoke jurisdiction.
a. Intent
In any event, we conclude that the Thorntons’ pleadings allege sufficient jurisdictional facts to affirmatively demonstrate jurisdiction. Not only did the Thorntons allege that in 2011, MUD entered onto their property, began excavating soil, and introduced and dumped lead—“contaminated soil” onto their property, which resulted in contamination of and damages to the property‘s value, but also they alleged that such behavior “is ongoing and has continued day to day.” Contrary to MUD‘s contention, the Thorntons are not required to plead11 and prove that MUD intended to contaminate their soil. See Jennings, 142 S.W.3d at 314; City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex. App.—Eastland 2006, no pet.) (not necessary for takings claim that city knew its surface activities would damage plaintiffs’ copper deposit—“work was dоne intentionally to alter the surface, which because of the copper deposit and plaintiffs’ rights under the mineral reservation, arguably caused damage“). Rather, they must allege that MUD knew that a specific act was causing identifiable harm, or at least knew that the damage was substantially certain to occur. See Jennings, 142 S.W.3d at 314.
Construing the pleadings liberally in favor of jurisdiction, looking to the Thorntons’ intent, and accepting the allegations in the pleadings as true, see Miranda, 133 S.W.3d at 226, these facts indicate at some point MUD had knowledge that its introduction and dumping of such lead—“contaminated soil” would damage or destroy the Thorntons’ private property and such damage was “necessarily an incident to” its conduct, meaning it was “substantially certain” to occur as a result of MUD‘s actions in using or continuing to use lead-contaminated soil in its drainage work on the Thorntons’ рroperty. See Jennings, 142 S.W.3d at 314. We conclude that the Thorntons’ pleadings sufficiently alleged facts to show MUD‘s intent.
b. Public use
While there is no concrete rule for determining whether a particular use is a public use, generally, the meaning is limited to situations in which the damages arise out of or are incident to the construction and operation of public works. See Steele v. City of Houston, 603 S.W.2d 786, 790-91 (Tex. 1980); Loyd, 956 S.W.2d at 128. Thus, MUD‘s contention that the Thorntons must plead12 and prove MUD‘s alleged soil contamination itself serves a public use or that the use of contaminated soil be integral to its public project is incorrect. See Harper, 216 S.W.3d at 393 (“Nor must plaintiffs show that a direct benefit flowed to the public from the damage done to plaintiffs’ copper deposit.“). Instead, the question for the court is whether there results to the public some definite right or use in the project or undertaking to which the property is devoted. See Dyer v. Tex. Elec. Serv. Co., 680 S.W.2d 883, 884-85 (Tex. App.—El Paso 1984, writ ref‘d n.r.e.); Loyd, 956 S.W.2d at 128. The key consideration in assessing whether a particular taking was for a public use is whether the public is bearing a cost for which it received a benefit. See Gragg, 151 S.W.3d at 554-55.
Here, MUD brought an eminent domain suit against the Thorntons to condemn an easement on their property “to facilitate necessary drainage for” MUD and “to accomplish [MUD‘s] public project.” In their pleadings, the Thorntons alleged that MUD took possession of and began an ongoing process of excavating soil and dumping contaminated soil on their property “for a public purpose.” We conclude that members of the public who live, work, or travel through the areas served by MUD‘s drainage project arguably will receive a benefit from improved drainage. See id.; see also Harper, 216 S.W.3d at 393 (“The public benefitted from the City‘s dirt work because it was done to help construct a public landfill.“); Dyer, 680 S.W.2d at 884-85 (condemnation for electric power line was public use despite serving one customer because arguably would benefit public through increased oil production by customer). Based on a liberal construction favoring jurisdiction and taking the facts as true, see Miranda, 133 S.W.3d at 226, the Thorntons pleaded facts that could establish that the damage to their property arose out of or was incident to construction of a public work. See Ramirez, 431 S.W.3d at 639-40. We conclude that the Thorntons’ pleadings sufficiently alleged facts to show public use.
a. A no-evidence motion for summary judgment is not a valid means to attack the existence of jurisdictional facts.
Because the Thorntons have alleged facially valid takings claims, we proceed to the next step under Miranda wherein the governmental entity can challenge the existence of jurisdictional facts. See Miranda, 133 S.W.3d at 227. The Texas Supreme Court has expressly sanctioned the use of a standard that “mirrors” rule 166a(c), or a traditional motion for summary judgment. Id. at 228; see Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). As the movant in this jurisdictional plea process, MUD thus has the initial burden to prove there are no genuine issues of material fact as to at least one of the challenged elements of intent and public use, such that it is entitled to judgment as a matter of law. See Garcia, 372 S.W.3d at 635 (“Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction.“); Miranda, 133 S.W.3d at 227-28; City of Dallas v. Zetterlund, 261 S.W.3d 824, 829 (Tex. App.—Dallas 2008, no pet.) (“Given our standard of review, the question is whether the City proved as a matter of law that at least one of the challenged elements [of intent and public use] is absent.“). This requirement protects a plaintiff from having to put on his case simply to establish jurisdiction. Miranda, 133 S.W.3d at 228. But it also protects the interests of the governmental entity by allowing it in a timely mаnner to extricate itself from litigation if it is truly immune. Id.
If the movant carries its burden, the nonmovant then has the burden to show a disputed material fact issue exists regarding the jurisdictional issue. Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228. “[W]e must grant the plea if the defendant presents undisputed evidence that negates the existence of the court‘s jurisdiction.” Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). However, as with a traditional motion for summary judgment, if MUD fails to present conclusive proof of facts negating subject matter jurisdiction, the burden does not shift to the Thorntons to establish the existence of an issue of material fact. See Garcia, 372 S.W.3d at 635; Miranda, 133 S.W.3d at 228; Tex. State Office of Admin. Hearings v. Birch, No. 04-12-00681-CV, 2013 WL 3874473, at *3 (Tex. App.—San Antonio July 24, 2013, pet. denied) (mem. op.) (“If the defendant carries its burden, the plaintiff then has the burden to show a disputed material fact issue exists regarding the jurisdictional issue.“); Tex. Dep‘t of Transp. v. Olivares, 316 S.W.3d 89, 103 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[I]n a plea to the jurisdiction, a defendant must produce evidence that the trial court lacks jurisdiction before the plaintiff has the burdеn to present evidence establishing a fact question regarding jurisdiction.“); Dall. Cnty. v. Wadley, 168 S.W.3d 373, 379 (Tex. App.—Dallas 2005, no pet.) (denial of plea affirmed in premises defect case; plaintiff “had no burden to present evidence of the County‘s knowledge until the County had established its lack of knowledge“).
The Thorntons rely on Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2012, no pet.), to argue that the trial court should not have granted summary judgment to
- Allowing a challenge to subject matter jurisdiction in a nо-evidence motion has the effect of depriving a trial court of jurisdiction over a case in circumstances in which jurisdiction has not been affirmatively disproved. Id. at 792.
- Permitting a movant to obtain no-evidence summary judgment when the nonmovant‘s evidence is incomplete effectively deprives the trial court of jurisdiction not when jurisdiction has been disproved, but rather when it is uncertain. Id.
- In the absence of evidence disproving jurisdiction, a jurisdictional plea can only be granted when the pleadings affirmatively negate jurisdiction, with an emphasis on the rule that a plaintiff‘s good faith allegations are to be used and, if there is a gap in jurisdictional facts, the plaintiff should be allowed to replead. Id.
- With a no-evidence motion, jurisdiction could be deprived without any consideration of the plaintiff‘s pleadings. Id.
- Even when a plea is granted, the case is dismissed without рrejudice unless the plaintiff cannot remedy the defect, but a no-evidence summary judgment requires dismissal with prejudice. Id.
- Finally, in both a plea to the jurisdiction and a traditional motion for summary judgment, the defendant bears the burden of proving the trial court‘s lack of jurisdiction. Id.
The Green Tree court thus concluded that allowing subject matter jurisdiction challenges in no-evidence motions conflicts with the safeguards and presumptions that protect the trial court‘s jurisdiction, would deprive the trial of jurisdiction without a showing that the court actually lacks jurisdiction, and would prevent a party from removing any impediments to jurisdiction and then returning to court. Id. at 794.
The Green Tree court highlighted with particular concern situations where the determination of subject matter jurisdiction implicates the merits of the parties’ cause of action, and indicated that the Texas Supreme Court in Miranda, 133 S.W.3d at 228, has only “specifically approved treating evidentiary challenges to subject-matter jurisdiction like a traditional motion for summary judgment” under rule 166a(c). Green Tree, 388 S.W.3d at 793. Allowing defendants to challenge subject matter jurisdiction by way of no-evidence motion in such circumstances would force plaintiffs to “put on their case simply to establish jurisdiction” and would eliminate any burden on the defendant other than to identify the specific ground he believes to be lacking evidentiary support. Id. at 793-94 (quoting Miranda, 133 S.W.3d at 228); see also City of Austin v. Rangel, 184 S.W.3d 377, 382 (Tex. App.—Austin 2006, no pet.) (“The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.“).
We find Green Tree to be well reasoned and persuasive. Here, a determination of the trial court‘s subject matter jurisdiction clearly implicates the merits of the Thorntons’ takings claims. See Walton, 2008 WL 5100942, at *3 (Jennings intent issue involves jurisdictional facts that implicate merits); see also Univ. of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.—Austin 2009, no pet.) (explaining that where “many if not most of the challenged jurisdictional facts will also determine whether the plaintiff is entitled to relief on the merits of her case,” jurisdictional issue implicates merits). MUD brought a no-evidence summary judgment motion to challenge the Thorntons’ jurisdictional facts, specifically the constitutional taking elements of intent and public use. MUD, however, presented no evidence of its own to establish that there was no intent on its part and that the alleged damages to the Thorntons’ property did not arise out of or were not incident to a public use. The Thorntons filed a response and accompanying evidence. Although the Thorntons did not cite Green Tree in their response to MUD‘s no-evidence summary judgment, they expressly argued that MUD‘s motion must be denied because it “improperly requires [them] to marshal all of [their] evidence to prove each element of every cause of action.” To the extеnt they even were required to, we conclude that the Thorntons preserved this issue for our review. See Green Tree, 388 S.W.3d at 794-95 (not requiring objection for preservation).
Permitting MUD to challenge subject matter jurisdiction in a no-evidence motion improperly shifts the jurisdictional evidentiary burdens—effectively requiring the Thorntons to fully marshal their evidence simply to establish jurisdiction and eliminating any burden on MUD as a governmental entity to disprove jurisdiction through summary judgment evidence.13 We conclude that a trial court‘s subject matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment, see id. at 794, and the trial court thus erred in granting MUD summary judgment as to the Thorntons’ counterclaims for inverse condemnation, nuisance, and trespass.
b. Harm
The Green Tree court proceeded to a harm analysis: “If the trial court could have treated [the defendants‘] motion as a plea to the jurisdiction and granted it, we must affirm. Stated another way, if the record еstablishes that the trial court lacks jurisdiction, there is no harm.” Id. at 795. However, if the pleadings and the available record do not otherwise conclusively negate the existence of the trial court‘s jurisdiction, the plaintiff is harmed by the trial court‘s no-evidence jurisdictional plea ruling. See id.
We already have determined that the Thorntons’ pleadings are sufficient to facially invoke the trial court‘s jurisdiction over their inverse condemnation, nuisance, and trespass claims. Nor does any of the evidence—all of which was presented by the Thorntons14—affirmatively establish
that the trial court lacks jurisdiction over their taking claims.15 In other words, it does not conclusively establish MUD‘s lack of intent or that the alleged damage to the Thorntons’ property did not arise out of or incident to a public use. The Thorntons’ submitted evidence certainly does not foreclose the possibility that MUD cоuld have known that its actions were causing identifiable harm to the Thorntons’ property or that such harm was substantially certain to result from its actions, and that MUD could have damaged their property for a public use.16 The record does not affirmatively show that the trial court lacked subject matter jurisdiction over the Thorntons’ counterclaims for inverse condemnation, nuisance, and trespass.
Accordingly, we conclude that the error in granting MUD‘s no-evidence summary judgment is harmful. See
IV. CONCLUSION
We affirm the trial court‘s order insofar as it granted summary judgment in favor of MUD on the Thorntons’ “negligent trespass” counterclaim. We reverse in part the summary judgment on the Thorntons’ counterclaims for inverse condemnation,