City of Huntsville, Texas v. Lucio Castilleja and Laura Castilleja

ACCEPTED

15-25-00070-CV

FIFTEENTH COURT OF APPEALS

AUSTIN, TEXAS

No. 15-25-00070-CV 6/23/2025 12:00 AM

CHRISTOPHER A. PRINE

CLERK

FILED IN

In the Fifteenth Court of Appeals 15th COURT OF APPEALS

AUSTIN, TEXAS

Austin, Texas 6/23/2025 12:00:00 AM

CHRISTOPHER A. PRINE

Clerk

CITY OF HUNTSVILLE, TEXAS,

Appellant,

v.

LUCIO CASTILLEJA and

LAURA CASTILLEJA,

Appellees.

On Appeal from the 278th District Court of

Walker County, Texas

APPELLANT’S REPLY BRIEF

Ramon G. Viada III

State Bar No. 20559350

Viada & Strayer

17 Swallow Tail Court

The Woodlands, Texas 77381

(281) 419-6338

rayviada@viadastrayer.com

COUNSEL FOR APPELLANT

CITY OF HUNTSVILLE

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. STANDARD OF REVIEW REVISITED . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. UNSUPPORTED FACTUAL ASSERTIONS . . . . . . . . . . . . . . . . . . . . . . . . 3

III. NO FACT ISSUE SHOWING NEGLIGENT USE OF PROPERTY . . . . . . . . . 6

IV. FAILURE TO PLEAD RES IPSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

V. SUFFICIENCY OF MR. KURZY’S EXPERT OPINIONS . . . . . . . . . . . . . . 12

VI. DERIVATIVE PUBLIC OFFICIAL IMMUNITY . . . . . . . . . . . . . . . . . . . . 14

VII. NO INTENTIONAL TAKING FOR PUBLIC USE . . . . . . . . . . . . . . . . . . . 14

VIII. NO COMPENSABLE BODILY INJURY . . . . . . . . . . . . . . . . . . . . . . . . . 15

IX. NO WAIVER FOR ATTORNEY FEES . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii

INDEX OF AUTHORITIES

Cases Page(s)

Banda v. City of Galveston,

No. 01-05-00331, 2006 Tex. App. LEXIS 8175,

2006 WL 2640959 (Tex. App.—Houston [1st Dist.]

Sept. 14, 2026, pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . 7

Bombrdier Aero. Corp. v. SPEP Aircraft Holdings, LLC,

572 S.W.3d 213 (Tex. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Burrow v. Arce,

997 S.W.2d 229 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

City of Austin v. Powell,

704 S.W.3d 437 (Tex. 2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

City of Justin v. Rimrock Enters., Inc.,

466 S.W.3d 269 (Tex. App.—Fort Worth 2015, pet. denied) . . . . . . . 16

City of San Antonio v. Maspero,

640 S.W.3d 523 (Tex. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

City of San Antonio v. Pollock,

284 S.W.3d 809 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Critical Path Res., Inc. v. Cuevas,

561 S.W.3d 523 (Tex. App.—Houston [14th Dist.] 2018,

pet. granted, judgm’t vacated w.r.m) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Farm Servs. Inc. v. Gonzales,

756 S.W.2d 747 (Tex. App.—Corpus Christi 1988,

writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

iii

Mack v. Moore,

669 S.W.2d 415 (Tex. App.—Houston [1st Dist.] 1984,

no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

McConnell v. Southside Indep. Sch. Dist.,

858 S.W.2d 337 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rattray v. City of Brownsville,

662 S.W.3d 860 (Tex. 2023). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sanders v. NAES Central, Inc.,

498 S.W.3d 256 (Tex. App.—Houston [1st Dist.] 2016,

no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12

State Dep’t of Crim. Justice v. Miller,

51 S.W.3d 583 (Tex. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Tex. Pipe Bending Co. v. Gibbs,

580 S.W.2d 41 (Tex. Civ. App.—Houston [1st Dist.]

1979), writ ref’d n.r.e., 584 S.W.2d 702 (Tex. 1979) . . . . . . . . . . . . . 11

Town of Shady Shores v. Swanson,

590 S.W.3d 544 (Tex. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

United Servs. Auto Ass’n v. Croft,

175 S.W.3d 457 (Tex. App.—Dallas 2005, no pet.) . . . . . . . . . . . . . . 13

Univ. of Tex. Health Sci. Ctr. v. Dickerson,

No. 14-13-00232-CV, 2014 Tex. App. LEXIS 1889,

2014 WL 708521 (Tex. App.—Houston [14th Dist.]

Feb. 20, 2014, no pet.) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Univ. of Tex. Med. Branch at Galveston v. Mullins,

57 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2001,

no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Statutes, Rules, and Other Citations

TEX. R. APP. P. 38.1(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. CIV. P. 166a(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

* * * * *

v

APPELLANT’S REPLY BRIEF

Defendant-Appellant, City of Huntsville (the “City”), replies to the

Castillejas’ Appellees’ Brief.

I. STANDARD OF REVIEW REVISITED.

Two assertions in the Castillejas’ brief regarding the parties’

respective burdens are false. Each is addressed below in turn.

First, the Castillejas falsely assert they do not carry the “sole

burden” to establish each of their claims fit within a recognized waiver of

immunity. Appellees’ Br., p. 6. The Texas Supreme Court has

unequivocally stated and held in numerous decisions that “jurisdiction

may be challenged on evidentiary grounds and the burden to establish

jurisdiction, including waiver of a government defendant’s immunity from

suit, is on the plaintiff.” Town of Shady Shores v. Swanson, 590 S.W.3d

544, 551 (Tex. 2019).1 “There is ‘a presumption against any waiver until

the plaintiff establishes otherwise.’” City of Austin v. Powell, 704 S.W.3d

437, 447 (Tex. 2024) (quoting Rattray v. City of Brownsville, 662 S.W.3d

860, 866 (Tex. 2023)).

1

See also City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022)

(“The party suing the governmental unit bears the burden of affirmatively

showing waiver of immunity.”).

Second, the Castillejas falsely assert that the City’s burden below

mirrored the standard of conclusive proof applicable to traditional

summary judgments under TEX. R. CIV. P. 166a(c). Appellees’ Br., pp. 6-7.

While it is true that the standard applicable to an evidence-based plea to

the jurisdiction “generally mirrors” the traditional summary judgment

standard, see Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

228 (Tex. 2004), the City in this case also invoked the no-evidence

summary judgment procedure of Rule 166a(i) on the essential elements of

the Castillejas’ claims. Where a challenge to jurisdiction that implicates

the merits is properly made and supported, as here, by a no-evidence

motion for summary judgment, “the plaintiff will be required to present

sufficient evidence on the merits of her claims to create a genuine issue of

material fact.” Swanson, 590 S.W.3d at 552. “[T]o avoid the movant’s

entitlement to [no-evidence] summary judgment,” the nonmovant must

“expressly” point out fact issues in its written response. McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

The City’s plea/no-evidence MSJ in this case is essentially the hybrid

jurisdictional challenge of the sort reviewed in City of Austin v. Powell,

where the Court wrote:

2

[T]he City’s plea to the jurisdiction most closely

mirrors a no-evidence motion for summary

judgment. It argues that Powell failed to establish

jurisdictional facts after adequate time for

discovery. We therefore review Powell’s allegations

and evidence (considering the City’s undisputed

evidence only for context), and we determine

whether Powell has raised a fact issue regarding

the Tort Claims Act’s immunity waiver.

Id., 704 S.W.3d at 448.

II. UNSUPPORTED FACTUAL ASSERTIONS.

To mask the absence of any evidence of liability on the part of the

City, the Castillejas devote a significant portion of their brief to red

herring arguments about the sufficiency of their pleadings. The Court can

disregard most of those arguments. This appeal only raises one challenge

to the pleadings – the absence of pleadings to place res ipsa loquitur in

issue in this case. See Appellant’s Br., Issue III.A.1, p. 3; see also Argument

VI.D.2, pp. 24-25. The Castillejas essentially concede they did not plead res

ipsa but argue instead a specific pleading of res ipsa or the preconditions

for its application was unnecessary. Appellees’ Br., p. 13. The rest of the

City’s appeal is based on absence of legally sufficient to prove the essential

elements of the Castillejas’ negligence and takings causes of action.

3

The Texas Rules of Appellate Procedure require appellate briefs to

support factual assertions with record references – to “contain a clear and

concise argument for the contentions made, with appropriate citations to

authorities and to the record” on appeal. TEX. R. APP. P. 38.1(g). Much of

the Castillejas’ brief is bereft of any record reference to the factual

assertions made therein. The Court should thus disregard all such

unsupported factual assertions. The only evidence cited by the Castillejas

on the liability elements is evidence the City submitted in support of its

plea. The material appellate issues, therefore, nearly all consist of whether

the City’s own evidence raises a fact issue on the material elements of the

Castillejas’ claims.

In their brief, the Castillejas assert, without record citation, that “the

force generated by the jetting process resulted in an explosion of sewage

into the Castilleja residence.” Appellees’ Br., p. 8; see also pp. 11, 17. The

City showed that the only “force” pushing sewage into the low-lying

Castilleja residence was the force of gravity from surcharged sewage

accumulated behind the blockage. See Kurzy Declar.,¶ 9 (CR 127-28). No

evidence is cited to show otherwise.

4

The Castillejas also assert, without citation, that Mr. Kurzy’s

analysis shows “the force and direction of water used by the nozzle . . . was

excessive for the sewer conditions present.” Appellees’ Br., p. 9. To the

contrary, Mr. Kurzy’s Declaration expressly states that the pressures and

methods used by the city jetter crew were acceptable according to

recognized industry standards. See Kurzy Declar., ¶¶ 5, 6 (CR 125-26).

The Castillejas also assert, without citation, that “[i]ndustry

protocols require pre-jetting inspections, downstream monitoring, and

elevated caution in neighborhoods with known grade differentials.” See

Appellees’ Br., p. 17. No evidence exists of these claimed protocols or to

show that the city crew departed from any industry standards.

The Castillejas cite Paragraph 2 of Mr. Bruno’s Declaration for the

proposition that “sewage began entering the Castillejas’ home while the

City’s workers were actively conducting jetting upstream.” Appellees’ Br.,

p. 16 (citing CR 122). Mr. Bruno’s testimony is exactly the opposite:

When the blockage was broken by the jet, it was

discovered that the truck was empty of water, so

the jetter was turned off. Several minutes after the

jetter was turned off, the resident at 923 exited her

home and pointed to sewage that had entered her

home.

5

(CR 122) (emphasis added).

Finally, in two places in their brief, the Castillejas state that Mr.

Kurzy’s inspection of the site should have occurred before the incident, in

2022, rather than post-litigation as it did, on October 11, 2024; and they

then make the illogical leap by imputing these 2024 post hoc

measurements to the jetter crew. Appellees’ Br., pp. 10, 14. No evidence

exists, let alone cited, to show that Mr. Kurzy’s post hoc measurements

were available to, or known by, the City jetter crew before the incident.

Nor was any evidence cited to show that the City jetter crew knew the

Castilleja property was unprotected by any backflow prevention valve that

could have been installed when their plumber or builder connected their

residence to the City sewer main in 2000.

III. NO FACT ISSUE SHOWING NEGLIGENT USE OF PROPERTY.

“[T]he court must grant the plea if the evidence fails to raise a

question as to the existence of a jurisdictional fact.” City of Austin v.

Powell, 704 S.W.3d at 448.

The Castillejas lead off their brief with an express waiver of claims

relating to the “Wastewater Treatment Facility,” whatever that term may

mean. See Appellees’ Br., p. 1. Their focus instead is on claims arising out

6

of the alleged negligent use or operation by the City of sewer jetting

motor-equipment. Id. The only evidence cited to support that claim is that:

(1) the City used a motorized high-pressure jetter device to

clear a reported blockage in the sewer main;

(2) three homes located on the 900 block of Birmingham

Street (including the Castillejas’) experienced toilet

overflows on November 3, 2022;

(3) all three homes that experienced toilet overflows were

connected by private lateral lines lying only a few inches

above the level of the six-inch city sewer main; and

(4) “sewage rolls downhill.”

Appellees’ Br., p. 10.

This is essentially a claim of res ipsa loquitur – it happened; thus,

according to the Castillejas, some evidence of negligence can be inferred.

The law does not support this inference. See, e.g., Banda v. City of

Galveston, No. 01-05-00331, 2006 Tex. App. LEXIS 8175, *9-10, 2006 WL

2640959 (Tex. App.—Houston [1st Dist.] Sept. 14, 2026, pet. denied) (mem.

op.) (Hanks, J.) (affirming dismissal in sewer backup case where evidence

failed to show that sewer backup cases caused by negligence of the city

work crew in its operation of a jetter device to clear sewer main of

stoppage).

7

Evidence of a sewer backup which occurred shortly after a sewer line

is cleared is, by itself, legally insufficient to raise any fact issue of

negligence on the part of the City jetter crew in the use or operation of the

jetter device, for reasons the City has explained. See Appellant’s Br., pp.

27-33. No evidence is cited to show that:

• the crew used excessive pressure to remove the blockage

from the line;

• the crew directed the water hose and nozzle improperly;

• the crew failed to stop using the device after the blockage

was cleared;

• the crew deviated from any recognized industry standard in

its operation of the jetter device;

• the device was even in “use” within the meaning of the Tort

Claims Act when the surcharged wastewater moved

downstream and into the lateral connecting line owned by

the Castillejas;

• the force that lifted the accumulated sewage into the

Castilleja residence was anything other than gravity;

• the crew knew, or should have known, that the Castillejas

connected their property to the sewer line at a vulnerably

low level;

• the work crew knew, or should have known, that the

Castilleja residence was unprotected with a standard

backflow prevention device that would have blocked the

8

surge of sewage that flowed downstream after the blockage

was removed; and

• any prior incidents or backups had put the City on notice

that the property was vulnerable to a sewage overflow in the

event a work crew cleared the Birmingham Street sewer

main of a blockage.

Throughout their brief, the Castillejas argue that the City can be

held liable under a failure-to-warn theory. See Appellees’ Br., pp. 11, 15,

17. But no failure to warn theory was pled. Nor was any duty to warn

triggered on these facts, since no evidence exists to show that the crew was

aware or had reason to know of any danger from use of the jetter device

existed that could have been obviated by a warning.

And in any event, a failure to warn in this case does not implicate

negligence in the “use” or “operation” of the motor-driven jetter device. See,

e.g., Univ. of Tex. Health Sci. Ctr. v. Dickerson, No. 14-13-00232-CV, 2014

Tex. App. LEXIS 1889, *17, 2014 WL 708521 (Tex. App.—Houston [14th

Dist.] Feb. 20, 2014, no pet.) (failure to warn or convey information does

not implicate the use of tangible property waiver); Univ. of Tex. Med.

Branch at Galveston v. Mullins, 57 S.W.3d 653, 657 (Tex. App.—Houston

[14th Dist.] 2001, no pet.) (holding complaint that the defendant hospital

failed to communicate the results of a positive reading from an HIV test

9

documented in the plaintiff’s chart was not a claim involving the use or

misuse of tangible personal property).

IV. FAILURE TO PLEAD RES IPSA.

The City will rely on its opening brief to support its contention that

no evidence exists to support the application of res ipsa loquitur; and that

the evidence submitted conclusively defeats any res ipsa inference, even

if arguendo it could apply without proof of predicate facts. Appellant’s Br.,

pp. 25-35. The City will here respond to the Castillejas’ contention on

appeal that “[i]n Texas, it is not necessary to specifically plead the doctrine

of res ipsa loquitur to rely on it later at trial or on appeal.” Appellees’ Br.,

p. 13.

The two cases cited to support this assertion – Sanders v. NAES

Central, Inc., 498 S.W.3d 256 (Tex. App.—Houston [1st Dist.] 2016, no

pet.), and Farm Servs. Inc. v. Gonzales, 756 S.W.2d 747 (Tex.

App.—Corpus Christi 1988, writ denied) – are inapplicable because both

involved pleadings of general negligence, not a specific act of negligence.

In Sanders, a pleadings challenge was not raised on appeal. Rather,

the Court affirmed a no-evidence summary judgment for the defendant on

grounds that no evidence supported the necessary predicate for res ipsa to

10

apply – grounds similar to those raised by the City. Discussion of the

pleadings requirements only surfaces in a footnote of the dissenting

opinion, where Justice Higley wrote, almost as an aside, that “[i]f a

plaintiff’s petition ‘gives fair notice that he is not relying solely on specific

acts but instead intends to also rely on any other negligent acts reasonably

inferable from the circumstances of the accident, his pleading is sufficient

to invoke the res ipsa doctrine.’” Sanders, 498 S.W.3d at 263 n.1 (quoting

Tex. Pipe Bending Co. v. Gibbs, 580 S.W.2d 41, 45 (Tex. Civ.

App.—Houston [1st Dist.] 1979), writ ref’d n.r.e., 584 S.W.2d 702 (Tex.

1979)).

Farm Services is similar to Sanders, holding only that a “general

allegation of negligence” in that case was sufficient to place res ipsa in

issue. See Farm Services, 756 S.W.2d at 751.

In this case, by contrast, no general allegation of negligence was

made; nor under the Tort Claims Act can such an allegation support a

cause of action for which the waiver will apply. See, e.g., State Dep’t of

Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (“the Tort Claims

Act does not waive sovereign immunity for all negligence claims against

governmental units.”). To state a claim for which immunity is waived, the

11

negligent use of motor-driven equipment itself must actually cause the

injury. See id.2 No case holds that a city is presumed negligent if a house

experiences a sewer backup during or shortly after a line-clearing

operation.

V. SUFFICIENCY OF MR. KURZY’S EXPERT OPINIONS.

The Castillejas purport to rely on (mis)characterizations of Mr.

Kurzy’s testimony in their failed attempt to dispute Mr. Kurzy’s opinions

negating negligence, but elsewhere they have argued his opinions are

incompetent. No reliability objections were made in the Court below; and

therefore, any such objections made for the first time on appeal are

waived. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816-17 (Tex.

2009).

To the extent the Castillejas challenge Mr. Kurzy’s opinions as

conclusory, that challenge is invalid. “An expert’s testimony is conclusory

when the expert asserts a conclusion with no basis.” Bombrdier Aero. Corp.

2

In Sanders, the dissenting justice further pointed out that “[plaintiff]

Sanders did not plead any specific acts of negligence,” and moreover, “defendant

Amtech did not file any special exceptions to Sanders’s petition or challenge

Sanders’s reliance on the doctrine in its reply to its motion.” Id. (emphasis

added). The City’s reply to the Castillejas’ response did challenge the unpled

reliance on res ipsa. (CR 193) (“Res ipsa loquitur must be pled.”); see also RR, p.

7 (oral argument, pointing out no pleading to support res ipsa).

12

v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 223 (Tex. 2019). An

opinion is not conclusory if there is “a reasoned basis which the expert,

because of his ‘knowledge, skill, experience, training, or education,’ is

qualified to state.” United Servs. Auto Ass’n v. Croft, 175 S.W.3d 457, 464

(Tex. App.—Dallas 2005, no pet.) (quoting Burrow v. Arce, 997 S.W.2d 229,

236 (Tex. 1999)).

Mr. Kurzy qualified himself as an expert, a municipal water and

sewer systems engineer fully competent to give the opinion that the jetter

crew in this case complied with the applicable industry standards for

jetting a clogged sewer line. See Kurzy Declar. (CR 124-42). Mr. Kurzy

analyzed the underlying facts – the relative elevations of the city sewer

main and the Castillejas’ connecting lateral line; the condition and

capacity of the sewer line; the history of sewer backups in the area; the

water pressures used by the crew to locate and dislodge the blockage; and

the method used by the crew to approach the blockage and remove it – all

analyzed according to published industry standards specified in his

Declaration. Id. Because Mr. Kurzy described the facts upon which he

relied and explained his reasoning process in examining those facts, his

13

opinions were not conclusory. See Gulley v. State Farm Lloyds, 461 S.W.3d

563, 571-72 (Tex. App.—San Antonio 2014, pet. denied).

As the Castillejas offered no controverting evidence, Mr. Kurzy’s

opinions on whether the City breached any duty of care in operating the

jetter device are considered conclusively established. See Mack v. Moore,

669 S.W.2d 415, 419 (Tex. App.—Houston [1st Dist.] 1984, no writ) (if

expert testimony is required on an issue, and that expert testimony is

uncontroverted, the testimony is considered conclusively established). But

in any case, even if Mr. Kurzy’s opinions were disregarded or accorded less

than conclusive weight, the burden to show a breach of the duty of

reasonable care rested with the Castillejas, and no such evidence exists.

VI. DERIVATIVE PUBLIC OFFICIAL IMMUNITY.

As the Castillejas have never responded to this ground of immunity,

the City will rely on its opening brief to support it. Appellant’s Br., p 46-49.

VII. NO INTENTIONAL TAKING FOR PUBLIC USE.

The City will rely on its opening brief in support of its argument that

the Castillejas failed to raise a fact issue on the intent and public use

elements of their taking claim. Appellant’s Br., p. 36-39. In their brief, the

Castillejas contend that they “supported a takings claim based on the

14

City’s repeated intrusion on their private property in connection with

sewer maintenance operations.” Appellees’ Br., p. 18. But as with so many

of the other assertions in their brief, the Castillejas fail to support this one

with citations to the record – not surprisingly, since no such evidence exits

to support it.

VIII. NO COMPENSABLE BODILY INJURY.

The City will rely on its opening brief in showing that Texas law does

not allow emotional distress injuries caused by property damage and also

showing that no evidence exists to prove any personal injury apart from

distress due to property loss. In this connection, the City will here point

out that the only authority cited on this issue by the Castillejas – Critical

Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 570 (Tex. App.—Houston [14th

Dist.] 2018, pet. granted, judgm’t vacated w.r.m) – is inapposite for the

simple reason that the emotional injuries in that case were incident to

physical burn injuries, not incident to property loss. Emotional suffering

caused by bodily or physical injury is not at issue here.

IX. NO WAIVER FOR ATTORNEY FEES.

The Castillejas cite the Takings Provision of the Texas Constitution

to support their request for attorneys’ fees under that provision. That

15

provision contains no express waiver of immunity for an award of

attorneys’ fees. See also City of Justin v. Rimrock Enters., Inc., 466 S.W.3d

269, 288 (Tex. App.—Fort Worth 2015, pet. denied) (“Article I, section 17

of the Texas constitution does not authorize attorneys’ fees in a takings

case.”).

Respectfully submitted,

VIADA & STRAYER

By: /s/ RAMÓN G. VIADA III

Ramón G. Viada III

State Bar No. 20559350

rayviada@viadastrayer.com

17 Swallow Tail Court

The Woodlands, Texas 77381

281-419-6338

COUNSEL FOR APPELLANT

CITY OF HUNTSVILLE

CERTIFICATE OF COMPLIANCE

Pursuant Tex. R. App. P. 9.4 (i)(3), the undersigned certifies that this

Brief complies with the typeface and volume limitations of T.R.A.P. 9.4 (e)

and (i)(B). This Brief is printed in 14-point typeface, except for footnotes,

which are in 12-point typeface. Exclusive of the exempted portions of

T.R.A.P. 9.4(i)(1), this Brief contains 3,147 words as indicated by the word

count function of application used to create it.

RAMÓN G. VIADA III

Ramón G. Viada III

16

CERTIFICATE OF SERVICE

I certify that all counsel of record have been served a true and correct

copy of this Brief by electronic submission for filing and service through

the Texas Online EFiling for Courts on June 22, 2025.

/s/ RAMÓN G. VIADA III

Ramón G. Viada III

17

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The filer served this document via email generated by the efiling system

on the date and to the persons listed below. The rules governing

certificates of service have not changed. Filers must still provide a

certificate of service that complies with all applicable rules.

Jennifer Holloway on behalf of Ramon Viada

Bar No. 20559350

jholloway@viadastrayer.com

Envelope ID: 102275841

Filing Code Description: Brief Requesting Oral Argument

Filing Description: Appellant's Reply Brief

Status as of 6/23/2025 7:04 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jennifer Holloway jholloway@viadastrayer.com 6/22/2025 4:52:11 PM SENT

Ramon G.Viada rayviada@viadastrayer.com 6/22/2025 4:52:11 PM SENT

Aaron Pavlock 24107045 pavlockfirm@outlook.com 6/22/2025 4:52:11 PM SENT

Robert Thomson robert@thomsonfirm.com 6/22/2025 4:52:11 PM SENT