the City of Houston v. Gerald A. P. Boyle

Opinion issued July 8, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00016-CV

NO. 01-03-00759-CV

CITY OF HOUSTON, Appellant

V.

GERALD A.P. BOYLE, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2002-46152

O P I N I O N

Appellant, the City of Houston (the City), defendant in the trial court, brings

these accelerated, interlocutory appeals to challenge two orders by which the trial

court refused to grant the City’s pleas to the jurisdiction for the claims of appellee,

Gerald A.P. Boyle.

In Cause No. 01-03-00016-CV, the City brings a single issue to

challenge the trial court’s first order on the grounds that Boyle did not, despite

opportunity to amend his pleadings, allege facts sufficient to confer jurisdiction. In

Cause No. 01-03-00759-CV, which the City pursued after the trial court denied the

City’s plea a second time, the City brings two issues. The first issue challenges the

trial court’s holding that Boyle’s property-damage claim for nonnegligent nuisance

is not a claim for inverse condemnation. The second issue addresses the trial court’s

decision to abate the trial-court proceedings to permit Boyle to replead to exclude his

inverse-condemnation claim; the City contends that the trial court erred by not

dismissing that claim for want of jurisdiction. We address these appeals together and

reverse and render.

Underlying Facts and Procedural Background

Boyle owns property in the Forest Cove Country Club Estates (Forest Cove)

subdivision in Kingwood, Harris County. After annexing property in this area in

1996, the City began maintaining the drainage ditches in the area—a function

previously performed by Harris County. In addition, the City approved plans and

issued permits for construction of a shopping center and apartment complex near the

Forest Cove subdivision.

When Boyle’s property flooded during tropical storm Allison and again in fall

2001 and fall 2002, Boyle sued the City and others (not parties to this appeal) for

damage to and loss of his property. Factually, Boyle’s pleadings alleged that the City

did not maintain the drainage ditches properly and that the City should not have

issued building permits for construction near the Forest Cove subdivision because the

new construction placed an excessive burden on the drainage ditches in the

subdivision. Boyle’s pleadings sought damages by imposing liability on the City

under the following legal theories: inverse condemnation and nonnegligent nuisance,

pursuant to Article I, section 17 of the Texas Constitution;

and recovery authorized

by the Tort Claims Act (TCA).

The City filed special exceptions to the pleadings, which the trial court denied,

and then filed a plea to the jurisdiction to challenge the trial court’s subject-matter

jurisdiction to consider Boyle’s claims, which the trial court also denied. The City

perfected an appeal to this Court to challenge that ruling, under Cause No. 01-03-00016-CV. While that cause was pending in this Court, our sister court issued its

opinion in Taub v. Aquila Southwest Pipeline Corp ., 93 S.W.3d 451 (Tex.

App.—Houston [14th Dist.] 2002, no pet.). In its second plea to the jurisdiction, the

City relied on Taub to argue, as Taub held, that the Harris County Civil Courts at Law

had exclusive jurisdiction over Boyle’s article I, section 17 claims for inverse

condemnation and nonnegligent nuisance pursuant to section 25.1032(c) of the

Government Code.

See Taub , 93 S.W.3d at 458-59 .

The trial court’s order denying the City’s plea acknowledged that the trial court

lacked jurisdiction over Boyle’s inverse condemnation claim.

In the same order, the

trial court abated the suit until Boyle amended his pleadings to remove that claim.

Because the order again denied the City’s plea, we may infer that the trial court

concluded that it retained jurisdiction over Boyle’s remaining claims. On the parties’

joint motion for clarification of that order, the trial court signed an amended order.

This order again denied the City’s plea and ordered all proceedings abated until Boyle

amended his pleadings to exclude his claim for inverse condemnation, but held, in

addition, that Boyle’s non-negligent nuisance claim was not an article I, section 17

claim “within the meaning of section 25.1032(c) of the Texas Government Code” and

thus implicitly held that the trial court retained jurisdiction over that claim.

Plea to the Jurisdiction

A trial court must have subject-matter jurisdiction to adjudicate the subject

matter of a cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda , No. 01-0619,

47 Tex. Sup. Ct. J. 386, 390-91 (April 2, 2004). The burden is on the plaintiff to

plead facts that affirmatively demonstrate subject-matter jurisdiction. Tex. Ass’n of

Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). Subject-matter

jurisdiction may be challenged by a plea to the jurisdiction authorized by rule 85. See

Miranda , 47 Tex. Sup. Ct. J. at 390 ; Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636,

638-39 (Tex. 1999); Tex. R. Civ. P. 85.

Whether the plaintiff has alleged facts that demonstrate subject-matter

jurisdiction is a question of law. Miranda , 47 Tex. Sup. Ct. J. at 390 . Therefore, we

review the trial court’s granting or denying the plea de novo. Mayhew v. Town of

Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). In asserting a plea to the jurisdiction,

a party contends that an incurable jurisdictional defect precludes the court’s hearing

the case on the merits, even if all allegations in the pleadings are true. Bland Indep.

Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); City of Houston v. Northwood

Mun. Dist. No. 1 , 73 S.W.3d 304, 307 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

We do not look to the merits of the plaintiff’s case in conducting our review, but

consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional

inquiry. Miranda , 47 Tex. Sup. Ct. J. at 390-91 ; County of Cameron v. Brown , 80

S.W.3d 549, 555 (Tex. 2002). We construe the pleadings liberally in favor of

conferring jurisdiction. Miranda , 47 Tex. Sup. Ct. J. at 391 .

Sovereign Immunity

Sovereign immunity protects the State, its agencies and officials, and political

subdivisions of the State from suit, unless immunity from suit has been waived. Gen.

Servs. Comm’n v. Little-Tex Insulation Co. , 39 S.W.3d 591, 594 (Tex. 2001). The

sovereign immunity of the State inures to the benefit of a municipality insofar as the

municipality engages in the exercise of governmental functions, except when that

immunity has been waived.

See Fort Worth Indep. Sch. Dist. v. City of Fort Worth ,

22 S.W.3d 831, 840 (Tex. 2000); City of Tyler v. Likes , 962 S.W.2d 489, 501 (Tex.

1997); see also City of Houston v. Rushing , 39 S.W.3d 685, 686 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied) (stating, “The City of Houston, as a

home-rule municipality, is generally immune from both suit and liability in its

governmental functions.”).

Governmental immunity encompasses the following two principles: (1)

immunity from suit, which precludes a lawsuit against the entity unless the

Legislature has expressly consented to the suit, and (2) immunity from liability, which

precludes a judgment against the entity even if the Legislature has expressly

consented to the suit. Miranda , 47 Tex. Sup. Ct. J. at 389 ; Travis County v. Pelzel

& Assocs., Inc. , 77 S.W.3d 246, 248 (Tex. 2002). The burden is on the plaintiff to

establish subject-matter jurisdiction by showing that the entity has waived immunity

from suit. Jones , 8 S.W.3d at 638 . Subject-matter jurisdiction is a question of law.

Miranda , 47 Tex. Sup. Ct. J. at 390 . Unless the entity has consented to suit, the trial

court lacks subject-matter jurisdiction. Id. Immunity from suit is waived only by

legislative consent or constitutional amendment. Wichita Falls State Hosp. v. Taylor ,

106 S.W.3d 692, 695 (Tex. 2003). The supreme court has repeatedly held that

statutory or constitutional provisions must state the waiver in clear and unambiguous

language. E.g. , Taylor , 106 S.W.3d at 696 ; Pelzel , 77 S.W.3d at 248 ; see also Tex.

Gov’t Code Ann . § 311.034 (Vernon Supp. 2004) (providing, “In order to preserve

the legislature’s interest in managing state fiscal matters through the appropriations

process, a statute shall not be construed as a waiver of sovereign immunity unless the

waiver is effected by clear and unambiguous language.”).

Constitutional Waiver of Immunity—Article I, Section 17

A landowner whose property has been taken, damaged, destroyed for, or

applied to public use without adequate compensation may bring an inverse

condemnation claim pursuant to article I, section 17 of the Texas Constitution, which

provides in part, “No person’s property shall be taken, damaged or destroyed for or

applied to public use without adequate compensation being made, unless by the

consent of such person . . . .” Tex. Const. art. I, § 17; Tex. Parks & Wildlife Dep’t

v. Callaway , 971 S.W.2d 145, 148 (Tex. App.—Austin 1998, no pet.) (explaining

meaning of “inverse” condemnation). The constitution thus waives governmental

immunity from suit and liability “for the taking, damaging or destruction of property

for public use.” Steele v. City of Houston , 603 S.W.2d 786, 788-92 (Tex. 1980); see

Likes , 962 S.W.2d at 504-05 ; Northwood Mun. Dist. No. 1 , 73 S.W.3d at 308 . A

landowner may recover for damages to his property under article I, section 17 even

when there is no transfer of property rights. Steele , 603 S.W.2d at 790 . To

demonstrate that a constitutional inverse condemnation has occurred, the landowner

must show that (1) the State intentionally performed certain acts in the exercise of its

lawful authority (2) that resulted in a “taking” of property (3) for public use. Steele ,

146 S.W.2d 731, 736 (1941); Northwood Mun. Dist. No. 1 , 73 S.W.3d at 308 .

A. Whether Government Code Section 25.1032(c) Applies to Boyle’s

Nonnegligent (Intentional) Nuisance Claim

In response to the City’s second plea to the jurisdiction, the trial court agreed

that under the Taub decision, the Harris County Civil Courts at Law had exclusive

jurisdiction over Boyle’s inverse condemnation claims. That conclusion remains

unchallenged because, as explained above, Boyle did not perfect his own appeal to

challenge that ruling.

It is undisputed that Boyle’s pleadings invoked article I, section 17’s waiver

of immunity for both his inverse condemnation and his nonnegligent (intentional)

nuisance claims. The trial court nevertheless concluded that Boyle’s nuisance claim

was “not an inverse condemnation claim within the meaning of section 25.1032(c)”

of the Government Code and was therefore not within the exclusive jurisdiction of

the Harris County Civil Courts at Law.

In its first issue in Cause No. 01-03-00759-CV, the City challenges that

conclusion and the trial court’s implied conclusion that it retained jurisdiction over

Boyle’s nonnegligent (intentional) nuisance claim. As Taub recognized, Harris

County Civil Courts at Law have exclusive jurisdiction over article I, section 17

claims pursuant to section 25.1032(c) of the Government Code.

See Taub , 93

S.W.3d at 458-59 . Section 25.1032(c) of the Government Codes provides in part as

follows:(c) A county civil court at law has exclusive jurisdiction in Harris

County of eminent domain proceedings, both statutory and

inverse, regardless of the amount in controversy.

T ex. Gov’t Code Ann . § 25.1032(c) (Vernon 2004). Boyle disputes that the Harris

County Civil Courts at Law have jurisdiction over his nonnegligent nuisance claim

because section 25.1032(c) refers only to “eminent domain proceedings” and does not

refer to either article I, section 17 or nonnegligent nuisance. Boyle’s contentions

ignore his own pleadings.

1. Eminent Domain and Condemnation Consist of Taking

A municipality exercises its power of eminent domain through the process

generally referred to as “condemnation.” Taub , 93 S.W.3d at 456 (quoting Black's

Law Dictionary 523 (6th ed.1990)). Condemnation is the procedure by which the

sovereign exercises its right to take property of a private owner for public use,

without consent, but upon the payment of just compensation. A.C. Aukerman Co. v.

State , 902 S.W.2d 576, 577 (Tex. App.—Houston [1st Dist.] 1995, writ denied).

Inverse condemnation occurs when (1) a property owner seeks (2) compensation for

(3) property taken for public use (4) without process or a proper condemnation

proceeding. See id. , 902 S.W.2d at 577 ; see also Westgate, Ltd. v. State , 843 S.W.2d

448, 452 (Tex. 1992) (“An inverse condemnation or ‘taking’ action is thus available

to compensate a property owner for a loss resulting when his property has been taken

or damaged for public use without compensation or a condemnation proceeding.”).

2. Nonnegligent (Intentional) Nuisance as Governmental “Taking”

When a governmental entity creates a nonnegligent nuisance that damages and

thus “takes” the owner’s property, settled law recognizes that article I, section 17 of

the constitution waives immunity and enables a property owner to recover

compensation for the loss of his property.

See Likes , 962 S.W.2d at 504 ; Steele , 603

S.W.2d 791 ; City of Abilene v. Downs , 367 S.W.2d 153, 159 (Tex. 1963); Brewster

v. City of Forney , 22 S.W. 175, 176 (Tex. Comm’n App.1920, judgm’t adopted); see

also Kerr v. Tex. Dep’t of Transp ., 45 S.W.3d 248, 250, 252 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (holding that trial court erroneously sustained plea to

jurisdiction because pleadings sufficiently alleged both nuisance and constitutional

taking); Tarrant County v. English , 989 S.W.2d 368, 374 (Tex. App.—Fort Worth

1998, pet. denied) (noting that nonnegligent nuisance claims are alternative grounds

of recovery under article I, section 17 of the constitution); Bible Baptist Church v.

City of Cleburne , 848 S.W.2d 826, 830 (Tex. App.—Waco 1993, writ denied)

(recognizing that proof of nonnegligent nuisance authorizes recovery for

unconstitutional taking ).

3. Boyle’s Pleadings Alleged “Taking” by Inverse Condemnation and

Nuisance

Boyle’s amended pleadings alleged that the City’s intentional conduct, both in

maintaining the drainage ditches and in issuing the permit for adjacent construction,

“resulted in a taking and a non-negligent [sic] nuisance under Article I, section 17 of

the Texas Constitution[,]” which denied Boyle his constitutional right “to receive the

benefit of the proper condemnation proceedings.” Boyle further alleged that the City

“intentionally took [Boyle’s] land for a public use without proper compensation[,]”

that he had a right to “recover just compensation for the taking, damaging and

destroying of his property[,]” and that his inverse condemnation and nonnegligent

nuisance were causes of action granted under the constitution, for which the City “has

no immunity.”

4. Boyle’s Claims—Both Inverse Condemnation and Nonnegligent

(Intentional) Nuisance—Sought Condemnation Damages

Taking the allegations in Boyle’s pleadings as true and construing them

liberally and in favor of conferring jurisdiction, Miranda , 47 Tex. Sup. Ct. J. at 391 ,

we conclude that Boyle contends that the City’s conduct amounted to both a

nonnegligent (intentional) nuisance and an inverse condemnation, for which the City

had constitutionally waived immunity, and that both actions by the City amounted to

an intentional taking, for which Boyle was entitled to compensation through the

“proper condemnation proceedings.” (Emphasis added.) As Taub recognized,

because inverse condemnation proceedings are the means by which the City exercises

its power of eminent domain, they are therefore within the exclusive jurisdiction of

the Harris County Civil Courts at Law. See Taub , 93 S.W.3d at 456 . Because

Boyle’s pleadings seek recovery premised on allegations that the City’s alleged

conduct—both nonnegligent nuisance and inverse condemnation—resulted in a

taking of his property that entitled him to compensation, we conclude that exclusive

jurisdiction over Boyle’s nonnegligent nuisance claim, as well as his inverse

condemnation claim, is in the Harris County Civil Courts at Law pursuant to section

25.1032(c) of the Government Code. Tex. Gov’t Code Ann. § 25.1032(c); see

Taub , 93 S.W.3d at 458-59 . Accordingly, the trial court should have sustained the

City’s second plea to the jurisdiction and erred by concluding that Boyle’s nuisance

claim was not an inverse condemnation claim within the meaning of section

25.1032(c).

We sustain the City’s first issue in Cause No. 01-03-00759-CV.

B. Whether the City Waived Immunity Under the Tort Claims Act

Having held that the trial court should have sustained the City’s plea to the

jurisdiction for Boyle’s nonnegligent nuisance claims in addition to his inverse

condemnation claims and yielded those claims to the exclusive jurisdiction of the

Harris County Civil Courts at Law, we note that the only claims that remain are those

that Boyle contends he was entitled to assert under the TCA. In its sole issue in

Cause No. 01-03-00016-CV, the City contends that the trial court erred by denying

the City’s plea to the jurisdiction for those claims.

The TCA does not create a cause of action, but merely establishes waiver of

governmental immunity. Likes , 962 S.W.2d at 494 . The entity remains immune

unless waived by the TCA. Miranda , 47 Tex. Sup. Ct. J. at 389 . The TCA waives

immunity from suit for liability created under the TCA. Tex. Civ. Prac. & Rem.

Code Ann. § 101.025(a) (Vernon Supp. 2004); see Miranda , 47 Tex. Sup. Ct. J. at

389 . Broadly construed, Boyle’s pleadings allege that the City improperly maintained

its storm sewers and improperly issued a building permit for the apartment-complex

construction, and Boyle seeks actual and punitive damages for claimed damage to and

loss of his property. The acts and omissions that Boyle alleges are all governmental

functions. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.0215(a)(9), (28), (29),

(30) (Vernon Supp. 2004) (operation and maintenance of storm sewers; building

codes and inspection, plat approval; and engineering functions, respectively).

A governmental entity may be liable under the TCA for property damage that

occurs as a result of its governmental functions in the following instances:

(1) property damage . . . proximately caused by the wrongful act or omission

or the negligence of an employee acting within his scope of employment if:

(A) the property damage . . . arises from the operation or use of a

motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant

according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 1997).

Under the TCA, therefore, for the City to waive immunity for property-damage

claims, the damage must have been caused by negligent operation or use of a motor

vehicle or motor-driven equipment. Because Boyle’s pleadings do not allege either

of these, the general rule of immunity controls. See Miranda , 47 Tex. Sup. Ct. J. at

391 . Accordingly, the trial court erred by not sustaining the City’s first plea to the

jurisdiction for the claims for which Boyle claimed the TCA waived the City’s

immunity.

We sustain the City’s sole issue in Cause No. 01-03-00016-CV.

C. Whether the Trial Court Properly Ordered Abatement to Permit Boyle to

Amend His Pleadings to Remove His Inverse Condemnation Claim

The City’s second issue in Cause No. 01-03-00759-CV challenges the trial

court’s decision to abate the trial-court cause to permit Boyle to amend his pleadings

to remove his inverse condemnation claim. The supreme court recently clarified that

a trial court properly abates a cause in response to a plea to the jurisdiction when the

facts alleged in the pleadings do not demonstrate incurable defects and are merely

insufficient to assert jurisdiction. Miranda , 47 Tex. Sup. Ct. J. at 391 . When, as we

have held above, the pleadings “affirmatively negate” jurisdiction, the trial court

properly grants the plea to the jurisdiction without allowing an opportunity to amend.

Id.

The trial court’s abatement here assumes that the trial court retained

jurisdiction to address Boyle’s tort claims, pursuant to the TCA, and his nonnegligent

(intentional) nuisance claims. We have held that, under the facts alleged and the legal

theories pursued, the trial court had no jurisdiction to address either and should have

sustained the City’s pleas. Accordingly, Boyle’s defects were incurable; nothing

remained to abate; and the trial court should have dismissed the cause in response to

the City’s second plea.

We sustain the City’s second issue in Cause No. 01-03-00759-CV.

Conclusion

We reverse the judgment of the trial court and render judgment sustaining the

City’s pleas to the jurisdiction. We deny all pending motions as moot.

Elsa Alcala

Justice

Panel consists of Justices Nuchia, Alcala, and Higley.