Harris County Flood Control District v. Kerr, Edward A. and Normal

Opinion issued March 7, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00014-CV

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HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS

COUNTY, TEXAS, Appellants

V.

EDWARD A. AND NORMA KERR, PATTIE ACKERMNANN AND LEDA

KROLCZYK, DAVID T. ADAMS, CLIFFORD AHLHORN,

INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF

MARGRETE AHLHORN, THE ESTATE OF MARGRETE AHLHORN,

THOMAS E. ALVAREZ, B.J. AND CLAUDENCE ANELLO, PAUL C.

ARDOIN, JR., RONALD L. AND WENDY M. BARR, DONALD H. AND

CYNTHIA L. BECK, OKIE BECK, STEVE AND LINDA BEVERLIN,

DOUGLAS J. AND NANCY K. BLACK, LEROY AND MARY BOLLOM,

STANLEY AND CATHY BORDOVSKY, LORI KRAFT BORQUE,

WENDELL W. BREAZEALE, MICHAEL R. AND DIANA L.

BRINKMEYER, MARK A. AND LEAH BRUMLOW, MICHAEL AND

JUDY BRUNER, MICHAEL AND CYNTHIA BUCHANAN, JOSEPH AND

FAYE BUFFALO, WILLIAM AND SHIRLEY CANNAVINO, RUSSELL D.

AND LYNN CARLSON, JAMES J. AND CONNIE J. CASSENS, JAMES J.

CHRISTY, CARL W. CLARK, SUSAN CLARK, MICHAEL AND

SUZANNE CLAXTON, RONNIE D. AND JUDY A. COCKMAN, LARRY

AND MARY CRAWFORD, ANTONIO AND NILDA CUELLAR, JOLIE

DANIEL, WILLIAM P. AND SUE E. DAY, SUSAN JANE DEESLIE,

DUANE E. DEGNER, DAVID DICK, JACKIE L. AND LILLIAN L.

DILLON, KEVIN AND ELIZABETH DOMAIN, MARVIN J. AND

PAMELA A. DRODDY, JOHN AND BETTY ELLIS, KEITH AND HOLLY

ENGLE, NICKOLAS AND HUGHLEENE S. ERDELY, PATSY A.

EUBANKS, MIKE EVANS, FAIRBANKS ANIMAL CLINIC INC.,

DOUGLAS L. AND DEBRA G. FARES, DONNA FARRAR-WILSON

FORMERLY KNOWN AS DONNA FARRAR, BRANDON FOKKEN,

MARLOWE A. AND MARY M. FOKKEN, DAVID M. AND DEBBIE

FOYT, RICHARD AND TERRI FRITSCHE, SHIRLEY GALIK, PHYLLIS

J. GAMBLE, ARMANDO AND LUCIA GARCIA, ROBERT D. AND

JOVITA GARCIA, STEPHEN B. AND BRENDA GARNEY, ARTHUR AND

KATHERINE PINTSCH JR. AS EXECUTORS OF THE ESTATE OF

NORMAN K. AND LYNDA GARRISON, PAUL D. GERKE, STEPHANIE

K. GERKE – YOUNG, TIMOTHY K. AND DEBORAH K. GLAVIN,

HORACE DEAN AND JANICE M. GOLDEN, MICHAEL AND JENNIFER

L. GONZALEZ, RAY A. AND RITA R. GONZALES, MARK AND

JENNIFER GOODRUM, MIKE AND BRENDA GORSKI, JERRY AND

LINDA GRAGG, ROGER D. AND DEBORAH GREER, LULENE GREGG,

LANCE W. GREMILLION, SHARON GREMILLION, JOE EMENS

GUZMAN, LAMAR AND MARY ANN HAAS, LEO H. AND CATHERINE

HAAS, JR., DAVID AND LISA HALL, JAMES L. HALL, MICHAEL D.

AND KIMBERLY Y. HANEY, LYNN HANSEN FORMERLY KNOWN AS

LYNN HANSON, TERRY D. HARGRAVE, LONNIE AND JO A.

HARRISON, RALEIGH L. AND CHARLOTTE HARVEY, JANICE L.

HAYS, RICHARD LLOYD HAZEL, RICHARD A. AND BETTY J.

HEATHCOTT, ALICE K. HEDSTROM, DARLA HENRY, STEVE HENRY,

STEVEN J. AND MARIE A. HENRY, CAROL HILMERS, LONNIE E. AND

CHERYL A. HOOD, DANIEL AND ALISON HORSTMAN, ROBERT M.

HUBBARD, GARY AND BECKY HUDDLESTON, LYNN M. HUMMEL

FORMERLY KNOWN AS LYNN MARIE BREAZEALE, CHERYL JACKS

FORMERLY KNOWN AS CHERYL SMITH, WANDA L. JACKSON,

CATHERINE L. JOHNSON, INDIVIDUALLY AND AS

2

ADMINISTRATRIX OF THE ESTATE OF GEORGE E. JOHNSON,

DANIEL AND PAMELLA JONES, MAX AND CONNIE JONES, MICKEY

W. AND VIRGINIA KEELING, ALOIS AND KAREN KEILERS, TITUS L.

AND DONNA HOFFMAN KELLEY, CHARLOTTE SUSAN KERR, DAVID

B. AND DENISE M. KIRBY, RAMANATH AND JAYANTHI KONGOVI,

CORINE L. KONVICKA, LILLIAN M. KROLCZYK, PAUL AND JANIS

KUBECZKA, BERTHOLD G. AND MICHELE LAKADOSCH, LILLIAN

M. AND GEORGE W. LANG II, WALTER D. LATHAM, INDIVIDUALLY

AND AS ADMINISTRATOR OF THE ESTATE OF LINDA D. LATHAM,

JOHN S. AND NANCY L. LEATHERMAN, VERNON R. AND JO ANN

LEHDE, BARTLEY A. AND KARLA K. LEWIS, NORMAN J. AND

MARTHA A. LOCASCIO, LOWELL R. AND JUDITH A. LOCKE, CAROL

HOHL AS ADMINISTRATOR OF THE ESTATE OF HERMINE LUECKE,

THE ESTATE OF HERMINE LUECKE C/O CAROL HOHLE,

ADMINISTRATRIX, WAYNE D. AND ALLYSON LYNN, ELIZABETH

MALEK, DON P. MANIHA, FRANK J. AND MADYLENE MARINO,

JASON AND RENE R. MASS, BARBARA J. MATTHEWS, JOE G.

MCCOURT, LEE G. AND MARIAN MCDANIEL, PATRICK J. AND SUE

MCDERMOTT, THOMAS F. AND DENISE C. MCNEILLY, E.L. AND

PEGGY L. MCSHAN, JR., ANTONIO AND GUADALUPE MEDRANO,

JOE AND GLORIA MEJIA, DANIEL AND DORRAINE MELCHER,

BENNIE AND LINDA MELESKI, ROBERT L. MIDKIFF, J.T. MILLS,

ADOLPH AND THERESA MOCK, DAMASO C. AND EDITH MOJICA,

CHARLES A. AND LIH-SHIANG C. MONTEITH, DAVID A. AND

SHIRLEY MONTGOMERY, JOE AND DENISE MONTGOMERY, JOHN

T. AND KITTY MONTGOMERY, DAVID N. MOORE, AGNES A.

MURPHREE, LOI VAN AND NHAN K. NGUYEN, BRAD P. NIXON,

DAVID J. AND DONNIE B. NOLL, DAVID A. AND JENNIFER NOWAK,

FRED A. AND CAROLYN M. GARTMAN O’BANNION, KENNETH E.

AND CECILIA O’BANNION, MICHAEL W. AND DIANE O’CONNOR,

JANICE O’KEEFFE, LOUIS AND JOANNA ORLANDO, PETER B. AND

PATRICIA PEDERSEN, RALPH D. AND PATRICIA A. PEREZ,

CLARENCE AND JONCIA PERRY, JOHN AND RUTH PETTIJOHN,

GERARD PICCOLO, KATHERINE PICCOLO, MICHAEL AND

VIRGINIA PLOCH, LEONARD AND PATTIE L. PYLE, PAUL S. QUIN,

3

AYOUB AND FARIDEH ABDOLHAMID RAZMANDI, MEHDI AND

MARY RUTH RAZMANDI, BARBARA J. READY, WELDON AND

NORMA REED, MARC S. AND CAROL RENDALL, JOHN L. AND

GLORIA A. RILEY, LARRY AND JANIE ROCKETT, JOE E. AND

JULIET RODRIGUEZ, MARIO A. AND CONSUELO RODRIGUEZ,

ROBERT L. AND BARBARA M. ROHDE, RICHARD ROHN, STEPHANIE

RUSH, RANDY AND CINDY M. SARTAIN, JAMES E. AND NANCY C.

SAVOIE, CHRIS SCHILLING, JAMES L. AND VICTORIA R. SHERWIN,

MAY L. SIMPSON, INDIVIDUALLY AND AS ADMINISTRATRIX OF

THE ESTATE OF ERNEST L. SIMPSON, CRAIG D. AND MARY

SLOVAK, CHRISTOPHER A. AND DOROTHY ANNETTE SMALL,

SHARYN M. SMITH, SHELLY D. SMITH, DANNY J. AND CHARLOTTE

J. SRALLA, DANA G. AND MARGARET A. STREBECK, JAMES AND

DONNA TESSMER, KATHLEEN THERIALT, DAVID M. THOMPSON,

DAVID AND MARCIA TIJERINA, ZACHARY W. TOLSON, CARL AND

PATTI TORREGROSSA, BOBBY L. AND JANET UNDERWOOD, BETTY

VARNER, ALBERT AND MARGARET VASQUEZ, CHARLES L. AND

JANET C. VAVRICKA, VICKI VIDES, DAVID R. AND SHIRLEY J.

WAGNER, LYDIA A. WALDEN, JERRY AND SUE WALTON, LARRY J.

AND NORMA M. WASHINGTON, BRENT WESTON AND KAREN

RENEE MCDOWELL, NED E. AND CONNIE WHITTON, BRIAN AND

CAROLYN L. WILLIAMS, THOMAS P. AND DOROTHY W.

WILLIAMSON, DANE WILSON, ETHEL MAY WILSON, LINDA

WILSON RUMFOLO FORMERLY LINDA WILSON, ANDREA R.

WINTER, MARIA T. DE LA FUENTE AND JUDITH A. WOOD, LLOYD C.

AND SHELIA D. WOOD, WENDELL R. AND SHEILA WYBORNY,

GARRY L. AND MYRIAM L. ZALESKY, AND DARRELL D. AND

ANGELA R. ZWINK, Appellees

On Appeal from County Civil Court at Law No. 1

Harris County, Texas

Trial Court Case No. 837329

4

OPINION

This is an inverse condemnation and nuisance case brought by appellees

Edward A. and Norma Kerr, and over 200 other parties (the Kerrs or appellees)

whose properties were damaged by flooding in the White Oak Bayou watershed. 1

In four issues, appellants, Harris County Flood Control District (HCFCD) and

Harris County, Texas (Harris County; collectively, appellants) contend that in its

denial of their combined plea to the jurisdiction and motion for summary judgment

upon its mistaken belief that the law of the case compelled denial of the plea, the

trial court erred. Appellants further contend that the appellees failed to raise a

question of fact with regard to each of the three elements of their takings claim,

thus defeating both their takings and nuisance claims. We affirm the trial court’s

order denying appellants’ plea to the jurisdiction.

Background

Appellees own, or formerly owned, real property in several subdivisions

located in the upper White Oak Bayou watershed. Most of these properties are

homes built in the 1970s and early 1980s. Although most had never previously

flooded, appellees’ properties flooded one or more times over a five-year period as

a result of three severe storms: (1) Tropical Storm Frances in 1998, (2) Tropical

1

Originally appealed to the Fourteenth Court of Appeals, this case was transferred

to this Court by order of the Texas Supreme Court.

5

Storm Allison in 2001, and (3) and an unnamed storm in 2002. Appellees contend

that the cause of the flooding was unmitigated upstream development, coupled

with appellants’ flood-control measures in the White Oak Bayou watershed during

the years before these storms. 2

A. Brief Overview of White Oak Bayou Flood-Control Measures

White Oak Bayou is a major tributary in the Buffalo Bayou system that

drains the City of Houston and the majority of Harris County, Texas. In the late

1950s and early 1960s the United States Army Corps of Engineers began planning

and designing a flood-control project for the lower, more heavily populated, 10.7

miles of White Oak Bayou. The project, which entailed enlarging and lining the

bayou with concrete, was not completed until the mid-1970s.

Due of severe urban flooding conditions in the remaining upstream portions

of the watershed, the Corps, beginning in the early 1970s, investigated the

2

Appellees’ summary judgment motion argued that the flooding was also caused by

appellants’ construction of a transition control structure to which they refer as a

“dam.” Appellees, however, do not argue this point on appeal and because the

Court determines that appellees presented sufficient evidence to raise a question of

fact with respect to their other theory of the case (i.e., that the flooding was caused

by unmitigated upstream development, coupled with appellants’ flood-control

measures), it is not necessary for the panel to address this additional theory. We

note, however, that the dissenting opinion reaches this issue and concludes that

appellees failed to raise a question of fact with respect to whether HCFCD acted

with the requisite intent when it constructed the “dam.” The dissent reaches this

conclusion by dismissing the opinions expressed by appellees’ expert, Dr. Mays,

as conclusory (i.e., lacking a factual basis). On the contrary, the facts supporting

Dr. Mays’s opinions on this subject are set forth in detail in his January 2001 and

June 2009 reports.

6

feasibility of extending the project to the upper portion of the watershed. In 1976,

the Corps produced the “Interim Report on Upper White Oak Bayou summarizing

its findings as to the watershed’s recurring flooding problems and proposed a

mitigation plan. This report was coordinated with the Harris County

Commissioners Court (HCCC) and HCFCD.

The 1976 Corps Report confirmed the upper watershed to be prone to

flooding primarily due to “the lack of adequate [bayou] capacity to carry excessive

rainfall runoff away from the area without causing flooding.” Noting that the

appellants had approved new development without on-site mitigation and would

continue to do so, the report acknowledged these problems were further

compounded by inadequate storm sewers and street drainage in the neighborhoods

surrounding the upper bayou and concluded that continued upstream development

would substantially increase flooding in the upper bayou watershed. Appellants

concurred with the Corps’ findings and its recommendation for a major flood-

control project and agreed to act as the local sponsor of such a project. Thereafter,

federal funding for this project was pursued but was slow to materialize, and in

November 1980, Harris County, acting through the HCCC, authorized HCFCD to

implement an interim storm-water management policy that, inter alia, required all

new developments in the upper bayou watershed to provide on-site storm-water

detention basins. By 1983, HCFCD had completed its own “Flood Hazard Study”

7

in which it analyzed the effects of urbanization and defined the limits of the 100-

year floodplain in Harris County, Texas.

In response to the Corps’ delay in implementing its flood-control plan for

upper White Oak Bayou, Harris County commissioned Pate Engineers to develop

its own plan to eliminate the existing 100-year floodplain along the bayou while

also providing sufficient capacity to handle additional water from future

development throughout the watershed. In 1984, Harris County, acting through the

HCCC, formally approved the “White Oak Bayou Regional Flood Control Project”

and authorized HCFCD to implement the plan (the Pate Plan). The Pate Plan was

based in significant part upon HCFCD’s 1983 Flood Hazard Study, as well as

FEMA floodplain maps that were also based on the 1983 study. 3

The purpose of the Pate Plan was to eliminate flooding along the upper

bayou, including in the vicinity of appellees’ properties, for floods up to and

including a 100-year event, by expanding the bayou’s capacity to handle storm

water runoff produced from existing and expected future development in the upper

White Oak Bayou watershed. Because of the uncertainty of future federal funding

and the current unavailability of such funding, the Pate Plan was to be funded

solely through local taxes and “impact fees.” Specifically, small developments

3

Beginning in 1985, FEMA began issuing a series of new floodplain maps based on

the findings of the 1983 Flood Hazard Study covering the upper portion of the

White Oak Bayou watershed. A comparison of the FEMA floodplain maps

reveals that the bayou’s floodplain has significantly expanded since 1976.

8

(i.e., of less than ten acres) that opted not to construct onsite detention basins were

to pay $3,000 per acre “impact fees” to fund the construction of regional detention

basins.

The Pate Plan was multi-phased, with the initial phase providing the

necessary mitigation to prevent flooding of the developed portion of the upper

bayou watershed by construction of channel improvements, including along

appellees’ subdivisions, and the acquisition of regional detention sites. The plan,

once fully implemented, was intended to “maintain 100-year flood protection on

White Oak Bayou as future development occur[ed].”

In 1988, HCFCD informed the Corps that appellants were no longer

interested in the federal flood-control project because they had developed their

own plan that would be implemented quickly with local funds.

When flooding occurred along upper White Oak Bayou in 1989, however,

homeowners contacted HCFCD concerned that appellants had yet to construct any

of the channel improvements called for under the Pate Plan. In response to one

homeowner’s letter, HCFCD’s then-Director, James Green, acknowledged that

HCFCD was “very aware of the house flooding potential in Creekside Estates

South and many other subdivisions along White Oak Bayou.” Green also

acknowledged that they were in the process of implementing the Pate Plan that

9

would protect the homeowner’s subdivision from 100-year flood events and cited

on-going condemnation proceedings as the reason for the delay in implementation.

According to appellants, it was during this time that HCFCD discovered that

the engineering analysis used in developing the Pate Plan was either inadequate or

inaccurate and, in 1990, the engineering firm Klotz Associates (Klotz), was

commissioned for a new multi-phase study of existing White Oak Bayou

watershed conditions. Tasked with compiling the best information, Klotz

evaluated the base models and found the information in many areas to significantly

differ from the FEMA floodplain maps that were based upon the 1983 Flood

Hazard Study. After including new upstream development, Klotz determined that

the flood flows and flood levels along the bayou were much higher than the Pate

Plan showed4.

Based upon updated models and watershed information developed during

the first phase of the study, Klotz prepared an engineering report (Klotz Plan),

which appellants characterize as a revised version of the Pate Plan. Klotz’s stated

goal with respect to their proposed recommendations was “to find that combination

of improvements which provided the most drainage value for the funds expended.”

According to appellants, they accepted the parts of the Klotz Plan that could

be implemented more quickly than the original Pate Plan (i.e., constructing

4

The Pate Plan was also based on the 1983 Flood Hazard Study.

10

detention basins and earthen channel improvements to the portion of the bayou

directly downstream from appellees’ homes). These proposed channel

improvements extended from Cole Creek up to and past North Houston-Rosslyn

Road, where a transition control structure designed to maintain the status quo with

respect to the flood levels upstream of the structure (where appellees’ homes were

located) would be installed.

The Pate Plan, designed to protect against 100-year flood events, called for

construction of concrete-lined channel improvements for a sizable portion of upper

White Oak Bayou, including near appellees’ subdivisions. The Klotz Plan,

designed to provide protection from ten-year flood events, recommended

shallower, earthen channel improvements that stopped just downstream from

appellees’ properties. Thus, the portions of the Klotz Plan adopted by appellants

not only protected fewer property owners but did so from less-severe flooding

events. HCFCD claims that it relied upon the Klotz engineers’ certification that

the revised plan complied with regulations and would not increase downstream

runoff.

B. The Lawsuit

Appellees originally brought takings and nuisance claims in the 133rd

District Court of Harris County against the Texas Department of Transportation

(TxDOT) and several municipal utility districts, engineering firms, and real-estate

11

developers, as well as appellants for damages arising out of the flooding of their

properties during Tropical Storm Frances in 1998. See Kerr v. Tex. Dep’t of

Transp., 45 S.W.3d 248, 249 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (Kerr

I). The trial court granted TxDOT’s plea to the jurisdiction based on sovereign

immunity, 5 appellees took an interlocutory appeal, and this Court reversed and

remanded because appellees’ pleadings sufficiently alleged the elements of a

taking by TxDOT in its road design and construction. Id. at 252.

On remand, appellees settled with all of the defendants except for appellants.

Appellants subsequently filed, and the trial court granted, motions for summary

judgment based on sovereign immunity. The Kerrs appealed, and this Court issued

an opinion reversing the summary judgment. See Kerr v. Harris Cnty., No. 01-02-

00158-CV, 2003 WL 22053653 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(mem. op.) (Kerr II), opinion withdrawn and superseded on rehearing, 177 S.W.3d

5

Sovereign immunity protects the State, as well as its agencies and officials, from

lawsuits for damages and from liability. Ben Bolt–Palito Blanco Consol. Indep.

Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d

320, 323–24 (Tex. 2006) (sovereign immune from both liability and suit). A

related doctrine—referred to as governmental immunity—similarly protects

political subdivisions of the state, including cities. See id. at 324; City of Houston

v. Williams, 353 S.W.3d 128, 134 n.5 (Tex. 2011) (noting distinction between

sovereign and governmental immunity); see also Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (noting that courts often use

governmental immunity and sovereign immunity interchangeably although

doctrines are conceptually different). For ease of reference, we will use the term

“sovereign immunity” to reference both sovereign immunity and governmental

immunity.

12

290 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In Kerr II, appellants made

some of the same arguments they make here (i.e., that they had conclusively

established that they did not “intend” to take or damage appellees’ property and

appellees had failed to raise a question of fact on this issue). This Court rejected

that argument and held that appellees had presented sufficient evidence to raise “a

clear question of fact regarding whether the actions of [appellants], in not

completing the Pate plan, but in choosing to implement the Klotz plan instead,

created a condition whereby the flooding of the plaintiffs’ homes was substantially

certain to occur.” Kerr II, however, was subsequently withdrawn on rehearing,

and was superseded by a new opinion that reversed on jurisdictional grounds

because the suit had been brought in a district court instead of a county court at

law. See Kerr v. Harris Cnty., 177 S.W.3d 290, 294–95 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (Kerr III).

After remand from Kerr II, appellees refiled their suit in the County Court at

Law, where it was consolidated with two other pending takings and nuisance cases

against appellants arising from flooding during Tropical Storm Allison in 2001 and

an unnamed storm in 2002. Appellants filed a combined plea to the jurisdiction

and motion for summary judgment arguing that the doctrine of sovereign immunity

deprived the court of subject-matter jurisdiction. The trial court denied appellants’

combined plea in a written order declaring that he was compelled to do so by “Kerr

13

v. Tex. Dep’t. Of Transp., Kerr II,” which the court believed to be “the law of the

case until the Court of appeals either artfully or directly reverses itself, THUS it is

binding upon this trial court.” This appeal followed.

Plea to the Jurisdiction

This Court enjoys a specific grant of appellate jurisdiction over interlocutory

appeals of orders that either grant or deny pleas to the jurisdiction by a

governmental unit. See TEX. CIV. PRAC & REM. CODE ANN. § 51.014(a)(8) (West

Supp. 2012); Tex. Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex.

2004) (“[A]n interlocutory appeal may be taken from a refusal to dismiss for want

of jurisdiction whether the jurisdictional argument is presented by plea to the

jurisdiction or some other vehicle, such as a motion for summary judgment.”). A

plea to the jurisdiction challenges the court’s subject-matter jurisdiction. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). There are two types of

pleas to the jurisdiction: (1) challenges to the pleadings (i.e., whether the pleader

has alleged facts that affirmatively demonstrate the trial court’s subject-matter

jurisdiction) and (2) challenges to the existence of jurisdictional facts. Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

When a plea to the jurisdiction challenges the pleadings, we determine

whether the alleged facts as plead affirmatively demonstrate the court’s jurisdiction

to hear the case. Id. Our de novo review of such challenges look to the pleaders’

14

intent and construe the pleadings in favor of the plaintiffs. Id. If the pleadings

lack sufficient facts to affirmatively demonstrate the trial court’s jurisdiction, but

do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one

of pleading sufficiency and the plaintiffs should have the opportunity to amend.

Id. at 226–27.

On the other hand, jurisdictional challenges accompanied by evidence are

decided under a traditional summary-judgment standard in the trial court and

reviewed de novo on appeal. See id. at 227–28; see also TEX. R. CIV. P. 166a(c).

Thus, the burden is on the government to adduce evidence establishing that the

trial court lacks jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228;

Porretto v. Patterson, 251 S.W.3d 701, 711 (Tex. App.—Houston [1st. Dist. 2007,

no pet.). Thereafter, the burden shifts to the plaintiff to demonstrate that a disputed

issue of material fact exists regarding the jurisdictional issue. Miranda, 133

S.W.3d at 228; Porretto, 251 S.W.3d at 711. The defendant cannot simply deny

the existence of jurisdictional facts and force the plaintiff to raise a fact issue.

Miranda, 133 S.W.3d at 228; Porretto, 251 S.W.3d at 711.

Under these circumstances, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised, as the trial court

is required to do. Miranda, 133 S.W.3d at 227. Where the jurisdictional challenge

implicates the merits of the case and the plea to the jurisdiction includes evidence,

15

the trial court reviews the relevant evidence to determine if there is a fact issue. Id.

If a fact question concerning jurisdiction is raised by the evidence, the trial court

cannot grant the plea to the jurisdiction before that fact issue is resolved by the fact

finder. Id. at 227–28. If the relevant evidence is undisputed or does not raise a

fact issue on the jurisdictional question, the trial court rules on the plea to the

jurisdiction as a matter of law. Id. at 228.

In reviewing a plea to the jurisdiction in which the pleading requirement has

been met and evidence has been submitted in support of the plea that implicates the

merits of the case, we take as true all evidence favorable to the nonmovant. Id.

Every reasonable inference is made and any doubts are resolved in favor of the

nonmovant. Id.

Discussion

In their combined plea, appellants challenged the existence of jurisdictional

facts supporting all three elements of appellees’ takings claim—intent, causation,

and public use. Appellees responded that the plea was contrary to this Court’s

prior opinion in Kerr II, and that the plea should be denied because there were

material issues of fact with respect to all three elements. As previously noted,

here, the trial court denied the plea “for any and all reasons the Court of Appeals

may find compelling [including,] the law of the case. . . .”

16

A. “Law of the Case”

In their first issue on appeal, appellants contend that the trial court

erroneously denied their plea to the jurisdiction and motion for summary judgment

based upon the court’s mistaken belief that it was bound to do so by the “law of the

case.”

Under the doctrine of the “law of the case,” a question of law decided on

appeal to a court of last resort governs the case throughout its subsequent stages.

See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The doctrine is based

on public policy and is aimed at putting an end to litigation. Id. The doctrine does

not necessarily apply, however, where the issues or facts presented in the later

appeal are not substantially the same as those addressed in the earlier appeal. Id.

By narrowing the issues in successive stages of the litigation, the doctrine is

intended to achieve uniformity of decision as well as judicial economy and

efficiency. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). The

doctrine applies to trial courts as well as appellate courts, assuming subsequent

appeal of the case. See Briscoe, 102 S.W.3d at 716.

Specifically, here the trial court stated in its order that the numerous motions

pending before it, including appellants’ plea to the jurisdiction and motion for

summary judgment

should be denied for any and all reasons the Court of

Appeals may find compelling, and specifically in light of

17

Kerr v. Tex. Dept. of Transp., Kerr II, which though

contradictory to Aristotle’s Posterior Analytics in as

much as the opinion fiats the presupposition that

foreknowledge of possible future flooding is evidence of

a forewill to take when a Governmental entity elects to

expend its financial resources on other venues rather than

proscriptively expending funds on the project at hand (a

traditionally exempt exercise of legislative discretion

arguably thus the robbery victim may sue for funds spent

upon fire prevention and the home fire victim sue for

funds spent upon police protection), IT IS,

NONETHELESS, the law of the case until the Court of

appeals either artfully or directly reverses itself, THUS it

is binding upon this trial court.

Contrary to the trial court’s statement, neither Kerr I, which is referred to by the

trial court as Kerr v. Tex. Dep’t of Transp., nor Kerr II is the law of this case. Kerr

I is not binding under the law-of-the-case doctrine because that case involved

different parties and different facts. See Hudson, 711 S.W.2d at 630–31 (stating

that doctrine does not apply if issues or facts are not substantially same or if parties

or pleadings are different). In Kerr I, another defendant who is no longer a party to

this case, TxDOT, filed a plea to the jurisdiction; Harris County was not a party to

that appeal, and none of the factual allegations being raised against Harris County

in this case were asserted in Kerr I.

Likewise, Kerr II is not binding under the law of the case doctrine because

that opinion was withdrawn and superseded by another opinion. See Scanlan v.

Continental Inv. Co., 142 S.W.2d 432, 435 (Tex. Civ. App.—Galveston 1940, writ

dism’d judgm’t cor.) (stating that previous rulings which were withdrawn are not

18

law of the case); cf. Continental Cas. Co. v. Street, 364 S.W.2d 184, 188 (Tex.

1963) (stating that opinions withdrawn by appellate court are no longer binding);

Frizzell v. Cook, 790 S.W.2d 41, 43 (Tex. App.—San Antonio 1990, pet. denied)

(stating that withdrawn opinions have no precedential value). Courts do not

withdraw their opinions and issue new opinions in their place on a whim. Such

actions are taken with deliberate care and concern for the jurisprudence of the

State. Appellees have not offered—and we cannot conceive—of any reason why

we should be bound to follow an opinion under the law-of-the-case doctrine that

our learned colleagues on this Court have effectively instructed us to disregard by

their decision to withdraw that opinion and substitute another in its place.

Accordingly, we hold that the trial court erred when it denied appellants’ combined

plea to the jurisdiction and motion for summary judgment based upon its mistaken

belief that it was compelled to do so by the law of the case.

We sustain Harris County and HCFCD’s first issue.

B. Appellees’ Takings and Nuisance Claims

In their second, third, and fourth issues, appellants argue that the trial court

erred in denying their combined plea and motion for summary judgment because

they conclusively negated all three elements of appellees’ takings claim and

appellees failed to raise a fact question with respect to any of the elements.

Appellants further contend that because appellees’ nuisance claim is dependent

19

upon their takings claim, the trial court erred in denying their combined plea and

motion for summary judgment on this claim as well.

“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.

Appellants are immune from any suit unless immunity is waived by statute

or the constitution. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695

(Tex. 2003). Article I, section 17 of the Texas Constitution waives immunity for

takings. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007). Thus, if appellees do

not have an actionable takings claim, appellants’ immunity remains intact.

A takings cause of action consists of three elements: (1) an intentional act

by the government under its lawful authority, (2) resulting in a taking of the

plaintiff’s property, and (3) for public use. Holland, 221 S.W.3d at 643. The

premise of Article I, section 17 is that the government should not “‘forc[e] some

people alone to bear public burdens which, in all fairness and justice, should be

borne by the public as a whole.’” Steele v. City of Houston, 603 S.W.2d 786, 789

(Tex. 1980) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563,

1569 (1960)). Whether particular facts give rise to a “taking” of property is a

question of law we review de novo. See City of Austin v. Travis Cnt’y Landfill

Co., 73 S.W.3d 234, 241 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 937 (Tex. 1998).

20

To establish a constitutional taking, a plaintiff must show more than simply

that the governmental entity’s acts themselves were intentional, City of Dallas v.

Jennings, 142 S.W.3d 310, 313 (Tex. 2004), or that the governmental entity was

merely aware of the possibility of damage resulting from its conduct. City of San

Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009). A plaintiff must show that

the governmental entity either knows: (1) that a specific act is causing identifiable

harm; or (2) that the specific property damage is substantially certain to result from

an authorized government action. Jennings, 142 S.W.3d at 314. If the damage is

only an accidental result of the government’s actions, there can be no intent to take

the property, much less for a public use. Id. at 313–14 (discussing close link

between elements of intent and public use and stating that absence of intent

necessarily implies absence of public use).

Because appellees have not invoked any separate statutory or constitutional

waiver of immunity with respect to their nuisance claim, they may sue appellants

only “for a nuisance that rises to the level of a constitutional taking under Article I,

Section 17.” Id. at 312 (holding that city retained immunity from nuisance claim

because plaintiffs did not establish constitutional taking and did not assert waiver

of immunity for nuisance claim). Accordingly, resolution of appellees’ takings

claim is equally dispositive with respect to their nuisance claim.

21

1. Intent and Public Use

Relying primarily upon the affidavit of HCFCD director Michael Talbott,

appellants contend that they disproved the intent element of appellees’ takings

claim. Talbott’s affidavit, which explains the motivation behind and the evolution

of HCFCD’s flood-control policies and decisions, according to appellants, clearly

demonstrates HCFCD’s intent to reduce the risk of flooding in the White Oak

Bayou watershed through the implementation of these policies. Talbott denies that

HCFCD knew that the flooding of appellees’ properties was substantially certain to

result from these policies. Among other things, Talbott testified that HCFCD

relied on the Klotz engineers’ certifications that the Klotz Plan complied with

regulations and would not increase downstream runoff. Citing to City of Keller v.

Wilson, 168 S.W.3d 802, 829 (Tex. 2005), appellants argue that their reliance upon

the Klotz engineers’ certifications negates any suggestion of intent.

Appellees counter that Talbott’s affidavit (1) only applies to HCFCD, not

Harris County, 6 and (2) is insufficient to conclusively establish lack of intent

because the affidavit contains baseless, conclusory opinions that amount to nothing

more than a sworn denial of appellees’ legal claims. See Pollock, 284 S.W.3d at

816; Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). Appellees further contend

that City of Keller is factually distinguishable and appellants’ reliance on this case

6

See discussion infra note 7.

22

is misplaced.

Alternatively, appellees argue that even if appellants met their burden by

adducing evidence negating the element of intent, the trial court’s denial of their

plea was proper because appellees brought forth sufficient evidence to raise a

question of fact with respect to this issue. In particular, appellees argue that there

is a question of fact as to whether appellants knew that their approval of upstream

development without sufficient mitigation, coupled with their adoption of the Klotz

Plan, was substantially certain to lead to the flooding of appellees’ properties.

Appellees cite to the engineering studies that were provided to, or prepared for

appellants (e.g., the 1976 Corps Report, the 1984 Pate study, and the 1990s Klotz

studies), statements by county officials, and the testimony of appellees’ expert as

evidence of appellants’ intent. 7

Appellants argue that, although a required element of a constitutional taking,

public use is merely a tag-along factor closely linked with the element of intent.

Appellants further contend they have conclusively negated the element of public

use for the same reasons they conclusively negated the element of intent.

Jennings, 142 S.W.3d at 313–14.

7

Although appellees cite to the 1989 letter from HCFCD’s Green as indicia of the

County’s intent, the letter merely acknowledges the potential for flooding along

the upper White Oak Bayou, which is insufficient to demonstrate intent. City of

San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009) (stating awareness of

mere possibility of damage insufficient to demonstrate requisite intent for

constitutional taking).

23

We conclude that appellees presented evidence sufficient to raise a question

of fact with respect to the elements of intent and public use.8 Appellees presented

numerous of the Corps’ studies and reports, as well as those by engineers hired by

appellants that, appellees contend, demonstrate that appellants knew that their role

vis a vis the watershed (e.g., approval of upstream development without sufficient

mitigation) was substantially certain to result in the flooding of appellees’

properties. Appellees’ flood expert, Dr. Larry Mays, reached the same conclusions

in his 2009 expert report.

Citing to the 1976 Corps Report, appellees argue that appellants were aware

that their approval of upstream development without sufficient mitigation was

substantially certain to flood appellees’ properties as early as 1976. This Report

informed appellants that the flooding in the upper White Oak Bayou watershed

was due primarily to “the lack of adequate [bayou] capacity to carry excessive

8

Harris County and HCFCD rely primarily upon the affidavit of HCFCD director

Michael Talbott to disprove intent. The dissenting opinion concludes that because

Talbott did not expressly and unequivocally speak to Harris County’s knowledge

and intent (as opposed to HCFCD or the collective knowledge and intent of these

inter-related entities), the affidavit is insufficient to disprove Harris County’s

intent. This view, however, does not give due regard to the collaborative nature of

the relationship between Harris County and its flood control district in designing

and implementing a flood control plan for the White Oak Bayou watershed. For

example, the Pate Plan was the joint flood-control plan of HCFCD and Harris

County, it was formally approved by the HCCC, and thus, reflects the knowledge

and intent of both entities. Nevertheless, it is not necessary for the Court to decide

this issue, because even if Talbott’s affidavit is sufficient to disprove Harris

County’s intent, Harris County is still not entitled to relief on this basis because

appellees presented evidence sufficient to raise a question of fact on this issue.

24

rainfall runoff away from the area without causing flooding,” and that this caused

the bayou to overflow its banks and flood adjacent properties. The report further

stated these “flooding problems [were] compounded by continuing [upstream]

urbanization which increases and accelerates the runoff from rainfall . . . and

severe localized flooding caused by inadequate storm sewers and street drainage.”

HCFCD’s 1983 Flood Hazard Study confirmed that the floodplain along

upper White Oak Bayou had increased significantly since the 1976 FEMA map

and the 1976 Corps Report. The study’s findings were consistent with the Corps’

predictions that upstream development would necessarily result in an expanded

floodplain and increased flooding along upper White Oak Bayou.

Appellants adopted the Pate Plan the following year. Appellees argue that

the fact that the appellants adopted the Pate Plan to address these flooding

problems is evidence that they knew that upstream urbanization caused increased

runoff and accelerated flooding downstream, and if they did not take action to

provide mitigation that could accommodate past and future upstream development,

it was substantially certain that downstream properties (including appellees) would

flood.

Dr. Mays opined that despite the fact appellants knew that its approval of

upstream development without sufficient mitigation was substantially certain to

flood appellees’ properties as early as 1976 (a fact which was reinforced in 1983),

25

“numerous developments in the upper White Oak Bayou watershed were approved

after 1976 by the County without detention,” citing to appellants’ expert, Melvin

Spinks. After reviewing the Pate Plan, which also stated that increased runoff from

unmitigated development would exceed the runoff capacity of the bayou, Dr. Mays

concluded that appellants knew in 1984 that approving unmitigated development

and not implementing the mitigation measures of the Pate Plan was substantially

certain to result in the flooding of appellees’ homes.

Nevertheless, appellants subsequently chose to implement a scaled-back

version of the Pate Plan—the Klotz Plan—which undeniably provided less

protection to fewer property owners. Citing to City of Keller, the County argues

that it relied on the certification of the Klotz engineers that implementing this

revised, scaled-back version of the Pate Plan, would not increase downstream

runoff, and thus, could not have manifested the requisite intent for a takings claim.

City of Keller, 168 S.W.3d at 829.

City of Keller, however, is factually distinguishable. In City of Keller, three

sets of engineers certified that the enacted flood-control plans would not increase

downstream flooding. 168 S.W.3d at 829. Although the Klotz engineers also

certified that their plan would not increase downstream flooding, unlike the

plaintiffs’ property in City of Keller, appellees’ properties are located upstream

from the channel improvements recommend by Klotz. Thus, the certifications

26

relied upon by the County in this case are irrelevant with respect to whether they

knew that increased flooding on appellees’ property was substantially certain to

occur if they implemented the Klotz Plan. Moreover, in City of Keller, the

plaintiffs’ expert testified that flooding was inevitable, but offered no testimony

that the city knew that flooding was inevitable. Id. Thus, the plaintiffs merely

proved that the city might know, not that it did know that “the plans it approved

were substantially certain to increase flooding on the [plaintiffs’] properties.” Id.

at 830. Here, appellees’ expert, Dr. Mays, opined that flooding was substantially

certain to occur and that Harris County knew that it was, based, in part, upon the

Pate Plan, the 1976 Corps Report, as well as other studies.

The dissenting opinion dismisses Dr. Mays’s opinions on this issue as

conclusory—based in part upon deposition testimony Dr. Mays gave in this case in

2001. Notably, by the time the plea to the jurisdiction and motion for summary

judgment were decided eight years after his deposition was taken, the Doctor’s

opinion on the matter had evolved to incorporate these pleadings into his analysis.

As the dissent acknowledges, Dr. Mays’s June 2009 report supplemented his

January 2001 report and amended his 2007 supplemental report. Contrary to the

dissent’s suggestion, Dr. Mays did not “assume” that onsite detention facilities in

the watershed were inadequate “merely because flooding subsequently occurred,”

as appellants argue. Dr. Mays opined that the upstream development failed to

27

include adequate detention based upon information included in the report of

Melvin Spinks, one of appellants’ experts.

Appellees also argue, inter alia, that Talbott’s own affidavit creates a

question of fact with respect to HCFCD’s knowledge and reveals why the issue of

intent is generally one of fact that cannot be decided as a matter of law in the

present case. In particular, appellees point to the portion of the affidavit in which

Talbott opines that, “what [HCFCD] ‘knows,’ or whatever anyone ‘knows,’ in the

context of planning and implementing complex flood risk reductions projects is a

very qualified concept.” Talbott acknowledges that HCFCD’s knowledge has

“changed significantly over time,” and that “what [HCFCD] ‘knew’ about this

watershed in 1984 and what [HCFCD] knew in the early 1990s or even today . . . is

a function of expanding information and technical capabilities.” Appellees argue

that construing Talbott’s statements about HCFCD’s ever-changing knowledge in

appellees’ favor—as required by our standard of review—reveals that these

statements raise a fact issue about what HCFCD knew about the potential for

flooding and when HCFCD knew it.

Appellants respond that appellees miss the point of Talbott’s statement,

which is to explain that perfect knowledge does not exist regarding the behavior of

storm-water runoff in a watershed and an engineers’ understanding of any

particular watershed is continually changing based upon new technology and

28

observations of actual events. According to appellants, this highlights the

“difficulty in predicting the effects of any one factor and illustrates the risk of

attributing intent and fault with hindsight.” Be that as it may, Talbott’s statements

clearly highlight the factual complexity surrounding this issue and the difficulty of

pinpointing precisely what appellants knew about flooding in the upper watershed

and when they knew it.

While none of this evidence standing alone may be sufficient to raise a

question of fact, when considered together and taken as true, and after resolving

every reasonable inference in appellees’ favor, appellees’ evidence is sufficient to

raise a question of fact with respect to appellants’ intent to take appellees’ property

for a public use. See Miranda, 133 S.W.3d at 227. This is particularly true in the

present case, where we have conflicting expert testimony as to what appellants

actually knew and when they knew it, and, unlike in City of Keller, there are no

expert certifications for the appellants to reply upon to negate intent. 9

9

Appellants’ post-submission letter brief urges our consideration of the El Paso

Court of Appeals’ opinion in City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex.

App.—El Paso 2011, no pet.) as instructive with respect to the elements of intent

and public use. Ramirez held that the plaintiffs failed to state a claim for inverse

condemnation because they only alleged that the property damage resulted from

“numerous omissions by the city.” Id. at 187. Unlike the plaintiffs in Ramirez,

appellees allege that their properties were damaged as a result of affirmative

acts taken by appellants (e.g., approval of unmitigated upstream development,

implementation of the Klotz plan). Indeed, the present case has more in common

with the El Paso Court of Appeals’ subsequent decision in City of El Paso v.

Mazie’s, L.P.,---S.W.3d---, 2012 WL 6608509, *8–9 (Tex. App.—El Paso 2012,

no pet.) (rejecting city’s argument that pleadings only alleged failure to act,

29

We hold that appellees raised a question of fact with respect to the intent and

public use elements of their takings claim.

2. Causation

Proximate cause is an essential element of a takings case. “[W]ithout

causation, there is no ‘taking.’” Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d

609, 615 (Tex. App.—Waco 2001), aff’d, 151 S.W.3d 546 (Tex. 2004).

Appellants contend that they disproved the causation element of appellees’

takings claim, relying primarily upon the affidavits of three of their experts—

Talbott, Spinks, and Andrew Yung—all of whom addressed the issue of causation.

According to appellants, this evidence demonstrates that the flooding of appellees’

properties was attributable to the severity of the rainfall associated with the three

storm events at issue in this case, as well as the inadequate storm sewers and other

local drainage problems.

Appellees’ evidence on this issue consists primarily of the reports prepared

by their expert, Dr. Mays, and the materials upon which those reports are based. In

his June 2009 report, which supplemented his January 2001 report, and amended

his 2007 supplemental report, Mays explicitly eliminated other possible causes of

the flooding, including appellants’ experts’ claims that the flooding was possibly

concluding, inter alia, that there was question of fact with respect to elements of

intent and public use, and affirming trial court’s order denying plea to the

jurisdiction).

30

the result of local drainage systems that were unable to handle the unusually high

amounts of rainfall associated with these storms. Dr. Mays also reaffirmed in his

supplemental report that appellants’ approval of unmitigated land development, as

previously discussed, caused the flooding of appellees’ homes in all three storm

events. Notably, the affidavits of Talbott, Spinks, and Yung neither address

Mays’s 2009 report nor do they opine that the unmitigated development

demonstrated by Mays was not a cause of the flooding.

After resolving every reasonable inference in appellees’ favor, we hold that

appellees presented evidence sufficient to raise a question of fact with respect to

this element as well. Having held that appellees raised a question of fact with

respect to all three elements of their takings claim, we further hold that the trial

court did not err in denying appellants’ plea to the jurisdiction with respect to both

their takings and nuisance claims.

Conclusion

We affirm the trial court’s order denying appellants’ plea to the jurisdiction.

Jim Sharp

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, concurring and dissenting.

31