Appendix — Janik ex rel. Janik v. City of Dallas

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S

(2) FILED

20 68 4 OCT 2 7 200

OFFICE OF THe Uienn

IN THE

Supreme Court of the United States

ERNEST A. JANIK, JR., individually, on behalf of Grant

Joseph Janik, on behalf of Tyler Newman Janik; LEAH

EILEEN JANIK, individually, on behalf of Grant Joseph

Janik, on behalf of Tyler Newman Janik,

Petitioners,

CITY OF DALLAS, TEXAS,

an incorporated municipality,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

JAMES J. S. JOHNSON, Esa.

Counsel of Record

P.O. Box 2952

Dallas, Texas 75221

817-430-9305 telephone

817-430-9306 FAX

Attorney for Petitioners

TABLE OF CONTENTS FOR APPENDIX

(separate volume, supporting Petition for

Writ of Certiorari)

APPENDIX’S PART “A”:

JUDGMENT AND DECISIONS BELOW (in reverse

chronological order)

Order of 8-3-2000 denying panel rehearing .........

Untitled order of 7-6-2000 denying appeal .........

Order-entered 6-30-1998 [Doc #260] .............

JUDGMENT entered 5-28-1998 [Doc #352] .......

Order entered 5-26-1998 [Doc #350] .............

Memorandum Opinion & Order entered 5-13-1998

DOS ee oe er ak

Memorandum Opinion & Order entered

B-LGFDO-T908 TIC WIGS)... ok ecw cee kc

Order of 11-20-1997 [Doc #301] entered..........

Memorandum Opinion & Order entered 10-15-1997

SEE ge cn on eras ee ek

APPENDIX’S PART “B”:

STATUTES, RULES, & OTHER LAWS INVOLVED

U.S. Constttn., Article III, Section 2 ...............

U.S. Constttn., Article VI, Supremacy Clause........

I i

Resource Conservation & Recovery Act statutes......

40 CFR Pt. 122, Appendix D, Table V, page 568 ....

EPA-issued NPDES Permit for City of Dallas .......

Federal Rules of Civil Procedure, Rule 15...........

Federal Rules of Civil Procedure, Rule 56...........

Texas Constttn., Article I, § 17 (Takings Clause) ....

Texas Tort Claims Act statutes ..........ccccccess

APPENDIX’S PART “C”:

OTHER MATERIALS NEEDED FOR

UNDERSTANDING THE PETITION

Plaintiffs’ Notice of Appeal filed 6-25-1998 (re 5th

Circuit Appeal 98-10781) [from Doc #358] ......

Brandon (M.D.) Declaration filed 3-10-1997 [from

Dee @148) « caccusazaas tte as eo

Brandon (M.D.) Declaration filed 1-5-1998 [from

Doe @818) ook. ccexcuse ei a eh hi ak we

McElyea (P.E.) Declaration filed 1-7-1998 [from

Dee O8894 oo igh See ees aos

Plaintiffs’ Motion for Leave to Supplement filed 5-22-

1906 [from Sive MH iis Litawnvaken oneness

Plaintiffs’ Exhibit “‘Supplement” to Plaintiffs’ Motion

for Leave to Supplement filed 5-22-1998 [from

Doe 0348). cscandci dane is ta a

Janik Declaration filed 2-3-1997 [from Doc #85] ....

Janik Declaration filed 2-24-1997 [from Doc #132] ..

Janik Declaration filed 11-12-1997 [from Doc #328]

Biological Hazards Excerpt from Janik Declaration

filed 2-3-1997 [from Doc #85] ............0.0.5.

City First Amended Original Answer filed 4-25-1997

[from Dec OIGGT oi << <6 Paget babe ei thease canss

Brief of Appellee City Dated 12-9-1998.............

APPENDIX PART A

A-1

U.S. Court of Appeals

Filed |

August 3, 2000

In the United States Court of Appeals

for the Fifth Circuit

No. 98-10781

ERNEST A JANIK, JR, individually, on behalf of Grant Joseph

Janik, on behalf of Tyler Newman Janik; LEAH EILEEN JANIK,

individually, on behalf of Grant Joseph Janik, on behalf of Tyler

Newman Janik, Plaintiffs-Appellants,

CITY OF DALLAS TEXAS, Etc, et al, Defendants,

CITY OF DALLAS TEXAS, an incorporated municipality, Defen-

dant-Appellee.

No. 98-11369

ERNEST A JANIK, JR, Individually, On behalf of Grant Joseph

Janik, On behalf of Tyler Newman Janik; LEAH EILEEN JANIK,

Individually, On behalf of Grant Joseph Janik, On behalf of Tyler

Newman Janik, Plaintiffs-Appellants,

CITY OF DALLAS TEXAS, Etc; et al, Defendants

AMICA MUTUAL INSURANCE CO, A Rhode Island Company;

INSURANCE ADJUSTMENT SERVICES OF TEXAS INC, A Texas

Corporation, Also known as Insurance Adjustment Services, Also

known as Insurance Adjustment Services Inc; NOBEL SERVICE

CORPORATION, A Delaware Corporation, Doing business as In-

surance Adjustment Services Inc, Defendants-Appellees.

Appeals from the United States District Court for the Northern

District of Texas, Dallas

A-2

ON PETITION FOR REHEARING

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

Entered for the Court:

/s/_ WILL GARWOOD

United States Circuit Judge

REHG-2

CLERK’S NOTE:

See FRAP and Local Rules 41 for stay of the mandate.

A-3

U.S. Court of Appeals

Filed

July 6, 2000

In the United States Court of Appeals

for the Fifth Circuit

No. 98-10781

ERNEST A. JANIK, JR., Individually, On Behalf of Grant

Joseph Janik, On Behalf of Tyler Newman Janik; Leah Eileen

Janik, Individually, On Behalf of Grant Joseph Janik, on

Behalf of Tyler Newman Janik, Plaintiffs-Appellants,

CITY OF DALLAS, TEXAS, Etc., et al, Defendants,

CITY OF DALLAS, TEXAS, an Incorporated Municipality,

Defendant-Appellee.

No. 98-11369

ERNEST A. JANIK, JR., Individually, On Behalf of Grant

Joseph Janik, On Behalf of Tyler Newman Janik; Leah Eileen

Janik, Individually, On Behalf of Grant Joseph Janik, on

Behalf of Tyler Newman Janik, Plaintiffs-Appellants,

CITY OF DALLAS, TEXAS, Etc., et al, Defendants,

AMICA MUTUAL INSURANCE CO., a Rhode Island Com-

pany; Insurance Adjustment Services of Texas Inc., a Texas

Corporation, Also Known as Insurance Adjustment Services,

Also Known as Insurance Adjustment Services Inc; Nobel

Service Corporation, a Delaware Corporation, Doing Business

As Insurance Adjustment Services Inc., Defendants-

Appellees.

A-4

Appeals from the United States District Court for the Northern

District of Texas

3:95-CV-2594-D

Before GARWOOD, WIENER and DENNIS, Circuit Judges.’

GARWOOD, Circuit Judge:

Plaintiffs-appellants Ernest A. Janik, Jr., and Leah Eileen

Janik, individually, and as next friends of their minor children,

(collectively, the Janiks) filed suit against defendants-appellees

the City of Dallas (the City), AMICA Mutual Insurance Co.

(AMICA), IAS Claim Services, Inc., (IAS), and Nobel Service

Corp. (Nobel)*, seeking recovery for personal and property dam-

age resulting from a sewage leak in the basement of a home they

were leasing and from the handling of their insurance claims for

losses caused by the sewage leak. The Janiks brought numerous

claims against the City, against AMICA (the Janiks’ insurer),

and against IAS and Nobel (their insurance adjustors ). In a series

of orders, the district court granted the City summary judgment

on all claims against it. With regard to AMICA, IAS, and Nobel,

the district court granted summary judgment in their favor on

several, but not all, of the Janiks’ causes of action. The Janiks’

remaining claims against AMICA, IAS, and Nobel proceeded to

trial, and the jury returned one liability question favorable to the

Janiks against AMICA and IAS. The district court, however,

entered judgment in favor of AMICA and IAS on this jury finding,

on the basis that there was no causal link between the sole

‘Pursuant to 5th Cir. R. 47.5 the Court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5th Cir. R. 47.5.4.

*The Janiks also named Floyd E. Meyers, Noble Holdings, Inc., and

Insurance Adjustment Services of Texas, Inc., as defendants to this

action. These defendants, however, were later dismissed from the case

and are not parties to this appeal.

A-5

liability finding and the damages finding. The Janiks appeal on

numerous points. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1993, the Janiks lived in a home they were renting at

5509 Melshire Boulevard in Dallas, Texas. On Sunday, Octo-

ber 31, 1993, the Janiks returned home from church to discover a

liquid seeping into their home. The Janiks attempted to clean their

home and furnishings until discovering that the water was in fact

untreated sewage water. The Janiks then stayed with a neighbor

for several days and soon moved to a different residence.

Seeking recovery for the property damage they suffered, the

Janiks filed a claim under their renter’s insurance policy with

AMICA. The day after discovering the sewage in their leased

home, the Janiks orally notified AMICA of their claim. AMICA

then referred the claim to IAS, an independent claims adjuster,

which opened a file on the Janiks’ insurance claims on Novem-

ber 2, 1993. Blackmon Mooring Steamatic (Blackmon Mooring )

was retained to assist in the cleaning and moving of the Janiks’

personal property.

Problems, unfortunately, soon arose. The Janiks considered

AMICA and the claims adjustors to be engaging in deliberate

delay and misrepresentation in processing the Janiks’ claims.

After several attempts by Blackmon Mooring to clean the personal

property to the Janiks’ satisfaction, AMICA decided to treat the

Janiks’ claim as a constructive total loss. IAS recommended that

the Janiks receive $60,000 — their policy limit. However, Black-

mon Mooring was owed $15,900 for its cleaning and moving

services, and a dispute arose over whether AMICA would pay the ©

full $60,000 directly to the Janiks who would then pay Blackmon

Mooring or issue two checks, one to the Janiks and the other to

Blackmon Mooring. Eventually, the Janiks paid Blackmon Moor-_

ing themselves, and AMICA then released the entire $60,000 to

A-6

the Janiks. In addition to the $60,000 payment for unscheduled

personal property, AMICA also provided the Janiks $4,425 in

coverage for additional living expenses. Although the Janiks do

not contend that they received less coverage than they were

entitled to under the policy, they do assert extra-contractual

damages on various theories for alleged problems in the handling

of their claim. The Janiks maintain that AMICA improperly

delayed payment and improperly demanded proof of loss for

payment, when the requirement for such proof was waived by

AMICA.

On October 30, 1995, the Janiks filed suit against the City,

alleging that the City was responsible for the sewerage leak and —

the resulting personal and property damages they suffered. The

Janiks sought recovery under various theories, including trespass,

conversion, nuisance, the Texas Constitution, the Federal Clean

Water Act, 33 U.S.C. §§ 1251-1887 (CWA), the Texas Tort

Claims Act, Tex. Crv. Prac. & REM. CopDE ANN. §§ 101.001-

101.109 (TTCA), the Texas Water Code, the Texas Solid Dispo-

sal Act, the Federal Declaratory Judgment Act, the Texas Declar-

atory Judgment Act, and violations of the Fourteenth Amendment

of the United States Constitution. In their third amended com-

plaint, the Janiks referenced the Resource Conservation and

Recovery Act, 42 U.S.C. § 6972 (RCRA), as an alternative

standard to support their claims under the CWA and state

nuisance law. In a series of orders, the distriet court granted

— summary judgment in favor of the City on each claim asserted by

the Janiks.

In the same complaint, the Janiks also named AMICA, IAS, and

Nobel as defendants. The Janiks alleged inter alia that AMICA,

IAS, and Nobel were liable for negligence, gross negligence, civil

conspiracy, breach of fiduciary duty, breach of contract, quasi-

contract, economic coercion and undue influence, violations of the

Texas Deceptive Trade Practices Act (DTPA), violations of the

Texas Uniform Fraudulent Transfer Act (TUFTA), and Texas

A-7

Insurance Code violations, all in connection with their conduct and |

representations while adjusting the Janiks’ insurance claims.° In a

series of orders, the district court granted summary judgment in

favor of AMICA on the following causes of action asserted by the

Janiks: breach of fiduciary duty, quasi-contract, economic coercion

and undue influence, and DTPA violations. The district court also

granted IAS summary judgment on the Janiks’ claims against it

for civil conspiracy and economic coercion. The remaining claims

were tried before a jury.

In August 1998, The Janiks remaining claims against AMICA,

IAS, and Nobel proceeded to trial. At the close of the Janiks’ case,

the district court granted the defendants judgment on the Janiks’

TUFTA claim. The district court then submitted the charge to the

jury. The charge included the following liability issaes: breach of

contract, breach of the duty of good faith and fair dealing,

negligence, gross negligence, negligent misrepresentation, civil

conspiracy (as to AMICA), and nineteen insurance code viola-

tions. The jury answered “yes” to only one liability question,

finding that AMICA and IAS violated the Texas Insurance Code

by “[f]ailing to acknowledge with reasonable promptness perti-

nent communications with respect to claims arising under the

policy.” The jury made a damages finding of $2,815.7u, repre-

senting the “out of pocket costs to plaintiffs to clean plaintiffs’

consumer goods, other than those requiring special remediation

efforts, as to those items that can be cleaned at a cost less than

“Against AMICA, the Janiks sought recovery for breach of contract,

quasi-contract, DTPA violations, bad faith, negligence, gross negli-

gence, economic coercion and undue influence, breach of fiduciary duty,

the Texas Declaratory Judgment Act, the Federal Declaratory- Judg-

ment Act, civil conspiracy, unconscionability, and Texas Insurance Code

violations. The claims against IAS were based upon negligence, gross

negligence, economic coercion and undue influence, civil conspiracy,

Texas Insurance Code violations, DTPA violations, and TUFTA viola-

tions. The Janiks sought recovery from Nobel for alleged TUFTA

violations.

A-8

the cost of replacement.” The jury apportioned responsibility for

the loss at twenty-five percent to AMICA and seventy-five percent

to IAS.

The district court, however, ruled that the jury’s liability finding

bore no relationship to the damages finding, specifically determin-

ing that there was no evidence of any out-of-pocket expenses

incurred by the Janiks as a result of any delayed or inadequate

communication by IAS and AMICA. Therefore, the district court

entered judgment in favor of AMICA and IAS. The Janiks filed

motions for reconsideration, new trial, and judgment as a matter

of law. The district court denied relief on these motions. The

Janiks then timely appealed.

DISCUSSION

On appeal, the Janiks assert that the district court erred in its

disposition of their claims against the City, AMICA, IAS, and

Noble. We affirm.

I. The City

The district court granted the City’s motions for summary

judgment on all of the Janiks’ claims. On appeal, the Janiks

contend that the district court committed error in four respects:

(1) the district court’s finding that the Janiks lacked Article III

standing to assert a CWA claim; (2) the district court’s decision

that the Janiks had not stated a cause of action under the RCRA‘;

‘On appeal, the Janiks contend that even if the district court correctly

determined that they had failed to state a claim under the RCRA, the

district court erred in refusing their motion to amend their pleadings

pursuant to Rule 15 of the Federal Rules of Civil Procedure. Whether a

party should be allowed to amend his pleadings is a decision left to the

sound discretion of the district court. See Moody v. FMC Corp., 995

F.2d 63, 65 (5th Cir. 1993). The Janiks filed their Rule 15 motion to

amend their pleadings to include an RCRA claim on May 22, 1998, more

than two and one-half years after filing this action and after three

A-9

(3) the district court’s conclusion that the City was not liable

under the TTCA; and (4) the district court’s determination that

the City’s actions did not constitute a nuisance and, therefore, did

not result in an unconstitutional takings. With regard to the first

two issues, we agree with the district court for the reasons stated

in its orders, but write further to address the last two points

raised by the Janiks.

We review a grant of summary judgment applying the same

standard as the court below was required to apply. See

King v. Chide, 974 F.2d 653, 655 (5th Cir. 1992). Summary

judgment is proper when no issue of material fact exists and the

moving party is entitled to judgment as a matter of law. See id. at

656. Summary judgment evidence is viewed in the light most

favorable to the nonmovant, in this case, the Janiks, and questions

of law are reviewed de novo. See id. We may affirm a judgment on

any basis raised below and supported by the record. See

Davis v. Scott, 157 F.3d 1008, 1005 (5th Cir. 1998); Davis v.

Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir. 1976); see

also 10A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND

PROCEDURE § 2716, at 290 (3d ed. 1998).

The Janik’s claims under nuisance and the TTCA are governed

by Texas law. When adjudicating claims for which state law

provides the rules of decision, we are bound to apply the law as

interpreted by the state’s highest court. See Transcontinental

Gas v. Transportation Ins. Co., 953 F.2d 985, 988 (5th Cir.

1992). If the state’s highest court has not spoken on a particular

issue, “it is the duty of the federal court to determine as best it

can, what the highest court of the state would decide.” Jd. When

making such a determination, we are bound by an intermediate

state appellate court decision unless ‘convinced by other persua-

sive data that the highest court of the state would decide other-

previous amendments to their pleadings. We cannot conclude that the

district court abused its discretion in refusing the Janiks’ request for a

fourth amendment.

A-10

wise.” First Nat’l Bank of Durant v. Trans Terr Corp., 142 F.3d

802, 809 (5th Cir. 1998) (internal quotations and footnote

omitted). We, however, ‘“‘will not expand state law beyond its

presently existing boundaries.” Rubinstein v. Collins, 20 F.3d

160, 172 (5th Cir. 1994) (footnote omitted).

We will first consider the Janiks’ claim under the TTCA. Before

the Texas legislature enacted the TTCA, liability against a munic-

ipality for the negligence of its representatives depended upon the

classification of the activity at issue as either a governmental

function or a proprietary function. See Dilley v. City of Houston,

222 S.W.2d 992, 993 (Tex. 1949). The former was shielded by

sovereign immunity, while the latter was not. Under this scheme,

if a municipality decided to provide sewer services, such services

were classified as a proprietary function and, therefore, not

afforded immunity. See City of Tyler v. Likes, 962 S.W.2d 489,

502 (Tex. 1997) (“Common law classified operation and mainte-

nance of storm sewers as proprietary functions for which a

municipality could be sued.’’). The TTCA, however, has largely

done away with this classification system. Under the TTCA,

sovereign immunity applies to negligence claims arising from a

municipality’s construction, operation, and maintenance of its

sewer systems, except to the extent such immunity is waived by

the TTCA. See Tex. Civ. Prac. & Rem. Cope ANN. § 101.021

A-11

(1997)° id. § 101.0215.° Accordingly, the TTCA narrowed mu-

nicipal liability for damages caused by sewer systems. City of

Tyler, 962 S.W. 2d at 504.

The Janiks alleged below, and reiterate on appeal, that the

City’s employees utilized motor-driven equipment when repairing

a sewer line in their neighborhood. The Janiks contend that this

equipment caused the sewage to seep into their home, thereby

falling within the purview of section 101.021 of the TTCA (see

note 5, supra). Under the TTCA, the City is immune from liability

for the intentional torts of trespass and conversion asserted by the

*Section 101.021 of the Texas Civil Practice and Remedies Code states

as follows:

“A governmental unit in the state is liable for:

(1) property damage, personal injury, and death 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, personal injury, or death 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; and

(2) personal injury and death so caused by a condition or use of

tangible personal or real property if the governmental unit would,

were it @ private person, be liable to the claimant according to

Texas law.”

*Section 101.0215 reads in pertinent part: Z

“(a) A municipality is liable under this chapter for damages

arising from its governmental functions, which are those functions

that are enjoined on a municipality by law and are given it by the

state as part of the state’s sovereignty, to be exercised by the

municipality in the interest of the general public, including but not

limited to:

(9) sanitary and storm sewers;

(32) water and sewer service; and

A-12

Janiks. See Tex. Civ. Prac. & Rem. Cope ANN. § 101.057." In

response to an interrogatory, the Janiks stated that they “have

not asserted any ‘negligence’ cause of action (or ‘count’) against

the City of Dallas.” As the City is immune for any intentional tort

alleged against it and the Janiks have not sought recovery under a

negligence theory, there is no remaining basis for liability under

the TTCA. Therefore, the district court’s grant of summary

judgment in favor of the City on the Janiks’ claim under the TTCA

is affirmed.

The Janiks also sought recovery under a state-law takings

claim, which they based on the doctrine of nuisance. Texas courts

have split actionable nuisance into three categories: (1) the

negligent invasion of another’s interest; (2) the intentional inva-

sion of another’s interest; and (3) other conduct, culpable because

it is abnormal and out of place in its surroundings, that invades

another’s interests. See City of Tyler, 962 S.W.2d at 503. As

noted previously, the Janiks do not allege that the City acted

negligently; therefore, the first category of nuisance is inapplica-

ble. Although several pre-City of Tyler Texas courts of appeals’

decisions suggest that the Janiks may recover under the abnormal

and unusual condition branch of nuisance, see Bible Baptist

Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.-Waco

1993, writ denied); Shade v. City of Dallas, 818 S.W.2d 578

(Tex. App.-Dallas 1991, no writ)*, the Janiks’ pleadings do not

"Section 101.057 provides as follows:

“This chapter does not apply to a claim:

(1) based on an injury or death connected with any act or

omission arising out of civil disobedience, riot, insurrection, or

rebellion; or

(2) arising out of assault, battery, false imprisonment, or any

other intentional tort, including a tort involving disciplinary action

by school authorities.”

“However, when considering a nuisance claim from excessive flooding

caused by culverts and a drainage channel, the Texas Supreme Court

focused on whether the culvert system was abnormal and out of place in

A-13

contain an allegation that any conduct by the City was “abnormal

and out of place in its surroundings.” Therefore, the Janiks are

reiegated to the second type of nuisance-intentiona! nuisance.

We again look to the Texas Supreme Court’s decision in City of

Tyler for guidance. Likes’s home was damaged after a drainage

channel and culverts owned by the City of Tyler flooded from

heavy rains in the area, and Likes sought recovery from the City

of Tyler under a nuisance theory. See City of Tyler, 962 S.W.2é at

503. The Texas Supreme Court held, as a matter of law, thatthe

City of Tyler “did not intentionally do anything to increase «the

amount of water in the watershed in which Likes’s home was

located.” Id. at 504. The court based this conclusion on the City of

Tyler’s having completed the culvert system before the Likes’s

home was built and not having made any improvements since then

to increase the amount of water in the watershed where Likes’s

home was located. See id. It is undisputed that the City of Tyler

intentionally constructed the culvert system and, therefore, the

court’s attention must have been focused on the intent to cause

the flooding in the vicinity of Likes’s home. In the present case,

there is no allegation, nor any evidence, that the City intended to

cause the sewage flooding in the vicinity of the Janiks’ home.

Accordingly, the Janiks’ takings claim premised on nuisance fails.

In conclusion, the district court did not err in granting summary

judgment in favor of the City.

Il. Insurance Defendants

The Janiks raise several claims of error in the district court’s

disposition of their claims against AMICA, IAS, and Nobel. First,

its surroundings, not whether the resulting flood waters were. See City

of Tyler, 962 S.W.2d at 504. Similarly, were we to reach the issue in the

present case, we would need to address whether the sewer system itself,

not the sewage that escaped from that system, was sufficiently abnor-

mal and out of place in its surroundings. There does not appear

adequate evidence that it was.

A-14

the Janiks appeal the district court’s grant of partial summary

judgment in favor of AMICA, IAS, and Nobel on the following

causes of action: economic coercion and undue influence, civil

conspiracy, DTPA violations, breach of fiduciary duty, quasi-

contract, and unconscionability. Second, the Janiks contend that

the district court erred in declining to find manifest error in the

~ jury’s verdict, specifically, that the Janiks had not established

their claims for\ breach of contract and violations of the Texas

Insurance Code and greater damages than those awarded by the

jury. Third, the Janiks assert that the district court erred granting

judgment for IAS and AMICA on the jury’s one liability finding in

the Janiks’ favor.’ We hold that the district court did not err in

any respect and rely on its reasoning in all matters save one. We

briefly address the Janiks’ contention that AMICA breached the

policy by delaying payment of their claims until March 23, 1994,

when the Janiks and AMICA had agreed on or around Febru-

ary 15, 1994 that AMICA would pay the Janiks $60,000 under

the policy.

The Janiks alleged that AMICA breached the policy by failing

to pay the Janiks’ claim within the prescribed five-day period after

giving notice of its intent to pay their claim. On or around

February 15, 1994, AMICA and the Janiks reached an agreement

whereby a total loss would be claimed on the Janiks’ damaged

personal property. Therefore, the Janiks would receive payment

for the policy limit of $60,000. However, Blackmon Mooring had

submitted a bill for approximately $15,900 in expenses associated

*The Janiks raise two additional points of error. First, the Janiks claim

that defense counsel engaged in improper jury argument when referring

to the Janiks’ attorney as stating that the case was about “‘invisible”’

harm when the Janiks’ attorney in fact said “indivisible” harm. The

resulting error, if any, was cured by the district court’s instructions to

the jury. Second, the Janiks complain that the district court’s rulings on

motions for summary judgment, new trial, and post-trial judgement as a

matter of law collectively deprived them of their Seventh Amendment

right to trial by jury. This claim is meritless.

i ee

A-15

with the cleaning and moving of the Janiks’ personal property.

Blackmon Mooring’s bill was to be paid out of the $60,000 fund,

and the Janiks would receive the remaining $44,100. Confusion

arose over weather or not the Janiks wanted AMICA to pay

Blackmon Mooring directly. The Janiks eventually paid’ Blackmon

Mooring independently. Upon being informed of this payment,

AMICA immediately sent the Janiks a check payable to them in

the amount of $60,000. Even assuming arguendo that AMICA

breached the policy by delaying payment to the Janiks,’® the

Janiks have failed to establish any resulting damage from such

breach. The Janiks received payment for the policy limit and, thus,

the benefit of their bargain with AMICA. Under these facts, there

can be no recovery for this alleged breach of the policy.

We find that the district court committed no error in its

disposition of the Janiks’ claims against AMICA, IAS, and Noble.

CONCLUSION

The judgment of the district court is affirmed.

'AMICA argues that the uncertainty surrounding the method of paying

Blackmon Mooring’s bill mitigated its duty to pay within five days of

notifying the Janiks that they would receive $60,000 in benefits under

the policy. In support of its position, AMICA relies on a provision in the

policy that states that, if payment of a claim requires performance of

an act by the insured, payment of the claim must be made within five

business days after the date such act is performed by the insured. As

we conclude that the Janiks suffered no injury from the alleged breach,

we need not address whether AMICA breached the policy.

A-16

[Doc #360] Entered June 30, 1998

In the United States District Court

for the Northern District of Texas _

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiffs,

CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

ORDER

Plaintiffs’ May 22, 1998 motion for leave to supplement and/or

leave to amend their complaint is denied.

Plaintiffs seek leave to amend their claim against the City of

Dallas (the “City’’) under the Resource Conservation and Recov-

ery Act (“ RCRA’’), 42 U.S.C. §§ 6901-6992K. They sought

leave to amend after the court filed its May 12, 1998 memoran-

dum opinion dismissing the remaining claims against the City,

including their RCRA claim. In view of the untimeliness of the

motion, and of the fact that it has been mooted by the filing on

May 27, 1998 of a Fed. R. Civ. P. 54(b) final judgment dismissing

this action against the City, the court denies the motion.

SO ORDERED

June 29, 1998.

n /s/_ SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

A-17

[Doc #352] Entered May 28, 1998

In the United States District Court

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR, et al., Plaintiffs,

CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

JUDGMENT

For the reasons set out in memorandum opinions and orders

filed April 16, 1998 and May 12, 1998, it is ordered and adjudged

plaintiffs’ action against defendant City of Dallas (the “City’’) is

dismissed with prejudice.

The City’s taxable cost of court, as calculated by the clerk of

court, are assessed against plaintiffs.

Pursuant to Fed. R. Civ. P. 54(b), the court expressly deter-

mines that there is no just reason for delay and directs the clerk of

court to enter this as a final judgement.

Done at Dallas, Texas this 27th day of May, 1998.

/s/_ SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

A-18

[Doc #350] Entered May 26, 1998 ~

In the United States District Court

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiff's,

CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

ORDER

Plaintiffs’ May 22, 1998 motion to reconsider or vacate and

motion to partially reinstate are denied.

SO ORDERED

May 22, 1998.

/s/_ SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

A-19

[Doc #343] Entered May 13, 1998

In the United States District Court

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiffs,

Vv.

THE CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

MEMORANDUM OPINION AND ORDER -

Defendant the City of Dallas, Texas (the “City”) moves for

summary judgment on plaintiffs’ putative claim for recovery

pursuant to the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§ 6901-6992K, negligence claims for

personal injury, common law nuisance, nuisance per se, trespass

to land, trespass to chattels and conversion, unavailability of the

Federal Declaratory Judgment Act for RCRA claim, state-law

based negligence claims, and takings claim based on nuisance. For

the reasons that follow, the court grants the motion in part and

denies it in part.

This lawsuit has been the subject of several prior opinions, and-

the court need not repeat at length the relevant background facts

and procedural history. Briefly summarized, plaintiffs Ernest A.

Janik, Jr. and Leah Eileen Janik, individually, and as next friends

of their minor children, sue several defendants, contending they

suffered personal injuries and property damage when sewage

backed up into the house they were renting. They sue the City

under the Fourteenth Amendment (Takings, Equal Protection,

A-20

and Due Process Clauses); the federal Clean Water Act, 33 U.S.C.

§§ 1251-1387; the Texas Constitution (Takings, Open Courts,

and Due Court of Law articles); the Texas Tort Claims Act, Tex.

Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109 (West 1997);

the Texas Water Code, Tex. Water Code Ann. § 26.121 (West

1988); the Texas Solid Waste Disposal Act, Tex. Health & Safety

Code Ann. §§ 361.001-361.613(West 1992 & Supp. 1997); the

Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the

Texas Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code

Ann. §§ 37.001-37.011 (West 1997); and various other state-law

torts. The City assumes that they sue under RCRA.

This court has previously dismissed plaintiffs’ claims based on

the Clean Water Act, claims brought directly under the United

States Constitution (Equal Protection, Due Process, and Takings

Clauses); state-law takings claim; ‘claims’ under the Texas

Water Code and Texas Solid Waste Disposal Act; ‘‘claims” under

the Due Course of Law article and the Open Courts provision of

the Texas Constitution; property damage from the City’s negli-

gence, and prayer for declaratory relief under both the Texas

Declaratory Judgment Act and the Federal Declaratory Judgment

Act for plaintiffs’ negligence claim and claims under the Clean

Water Act, Texas Water Code, and Waste Disposal Act.

The City moves for summary judgment on plaintiffs’ RCRA

claim. The court denies the motion, but holds that plaintiffs’ have

not alleged a separate RCRA cause of action.

As the City points out, plaintiffs’ third amended complaint does

not plead RCRA as a separate cause of action. Rather, plaintiffs

intend to utilize RCRA “to aid in proving up plaintiffs’ Clean

Water Act-related and nuisance-related causes of action (inter

alia), by showing one or more statutory standard violations — so

that the Clean Water Act and/or RCRA statutory violations

iM io AA EAD NN Sa i aA a I a Ds ~—

A-21

‘convert’ the plaintiffs’ common law nuisance claims into nui-

sance per se claims.” Ps. 3d Am. Compl. at 81. This court will not

grant summary judgment dismissing a claim that plaintiffs have

not pleaded. Accordingly, while acknowledging that no RCRA

cause of action has been asserted, the court denies this part of the

City’s motion.

The City also moves for summary judgment on the basis of its

defense of sovereign immunity on plaintiffs’ negligence claim for

personai injury.

“The operation and maintenance of a sanitary sewer is a

governmental function” Parr Golf Inc. v. City of Cedar Aull,

718 SW.2d 46, 47 (Tex. App. 1986, no writ). Accordingly, the

City is immune except to the extent that the Tort Claims Act

waives immunity. Under § 101.021, the City is liable for “per- _

sonal injury and death so caused by a condition or use of tangible

personal or real property if the governmental unit would, were it a

private person, be liable to the claimant according to Texas law.”

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1997).

Assuming arguendo that § 101.021 waives sovereign immunity in

the present case, the court must still determine whether the City’s

actions in maintaining the sewer system come within an exception

to the waiver of immunity. The City relies on § 101.056 of the

Tort Claims Act, which provides that immunity is not waived

when the claim is based upon the government’s failure to perform

an act that the law does not require it to perform, or where the

performance or nonperformance of an act is within the City’s

discretion.’ Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West

1997).

‘Section 101.056:

This chapter does not apply to a claim based on:

(1) the failure of a governmental unit to perform an act that the

unit is not required by law to perform; or

A-22

The City moves for summary judgment on the basis inter alia

that immunity is not waived because there is no law that requires

that it maintain the sewer system in a particular manner. It has

met its burden, as the summary judgment movant, of demonstrat-

ing its entitlement to summary judgment based on § 101.056.

Plaintiffs must therefore raise a legal or genuine and material

factual issue that would preclude summary judgment. Plaintiffs

have not responded to the City’s assertions under § 101.056 and

have therefore failed to present such an issue. The court therefore

grants summary judgment for the City on its defense of sovereign

immunity on plaintiffs’ negligence claims for personal injury.”

The City moves for summary judgment as to plaintiffs’ claims

for the intentional torts of trespass to land, trespass to chattels,

and conversion.

The City asserts immunity under § 101.057 of the Tort Claims

‘Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 1997),

which provides, in relevant part, that immunity is not waived for

intentional torts.® Plaintiffs have not responded to the applicability

(2) a governmental unit’s decision not to perform an act or on

its failure to make a decision on the performance or nonperform-

ance of an act if the law leaves the performance or nonperformance

of the act to the discretion of the governmental unit.

Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 1997).

*Plaintiffs contend that the Clean Water Act, 33 U.S.C. §§ 1251-1387,

and RCRA preempt Texas sovereign immunity law. Plaintiffs do not

have claims, however, under either of these statutes.

‘Section 101.057 (2):

This chapter does not apply to a claim:

(2) arising out of assault, battery, false imprisonment, or any

other intentional tort, including a tort involving disciplinary action

by school authorities.

Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 1997).

eee

A-23

of this section and have therefore failed to raise a legal or factual

issue that precludes summary judgment. Consequently, the court

grants summary judgment for the City on plaintiffs’ intentional

tort claims of trespass to land, trespass to chattels, and

conversion. *

The City moves for summary judgment on plaintiffs’ request for

declaratory relief under the Federal Declaratory Judgment Act for

their RCRA and state-law negligence cisims. Because the court

has noted that plaintiffs do not allege a RCRA claim, and has

granted summary judgment for the City on the state-law negli-

gence claims, the court denies this part of the motion as moot.

SO ORDERED.

May 12, 1998

/s/_ SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

“Because the court has already dismissed plaintiffs’ claims for nuisance,

nuisance per se, and takings based on nuisance, the court denies as

moot the City’s motions for summary judgment on these claims.

A-24

[Doc #342] Entered April 17 or 20, 1998

In the United States District Court

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiffs,

Vv.

CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

MEMORANDUM OPINION AND ORDER

Because plaintiffs have clarified in their October 24, 1997

motion to reconsider that their Texas takings claim is based on

nuisance, not on taking by flooding, the court grants their motion

- to reconsider to the extent that the court vacates its October 14,

1997 memorandum opinion and order and substitutes the follow—

ing memorandum opinion and order (which changes only § IV of

the October 14, 1997 memorandum opinion and order).

Plaintiffs Ernest A. Janik, Jr., and Leah Eileen Janik, individu-

\ ally, and as next friends of their minor children, move for partial

summary judgment. Defendant City of Dallas (“City”) also

moves for partial summary judgment. For the reasons that follow,

the court denies plaintiffs’ motion and grants in part and denies in

part the City’s motion.

Plaintiffs suffered personal injuries and property damage when

sewage backed up into the house they were renting. They sue the

City under the Fourteenth Amendinent (Takings, Equal Protec-

tion, and Due Process Clauses); the federal Clean Water Act,

33 U.S.C. §§ 1251-1387; the Texas Constitution (Takings, Open

A-25

Courts and Due Course of Law articles); the Texas Tort Claims

Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109

(West 1997); the Texas Water Code, Tex. Water Code Ann.

§ 26.121 (West 1988); the Texas Solid Waste Disposal Act, Tex.

Health & Safety Code Ann. §§ 361.001-361 613 (West 1992 &

Supp. 1997); the federal Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202; the Texas Declaratory Judgment Act, Tex. Civ.

Prac. & Rem. Code Ann. §§ 37.001-.37.011 (West 1997); the

Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§§ 6901-6992K; and various other state-law torts. The City

moves fo: summary judgment as to all of plaintiffs’ claims except

their RCRA claim. Plaintiffs move for partial summary judgment

on their Clean Water Act, nuisance per se, takings, and Texas

Tort Claims Act claims and their prayer for declaratory relief.

The court first turns to the City’s motion for partial summary

judgment, and its contention that plaintiffs lack statutory and

constitutional standing to sue under the citizen suits provision of

the Clean Water Act, 33 U.S.C. § 1365.

Assuming arguendo that plaintiffs have statutory standing

under the Clean Water Act through a combination of a discharge

violation and other permit violations, the court turns to the City’s

assertion that the plaintiffs have failed to produce any evidence of

constitutional standing. To establish constitutional standing,

plaintiffs must show (1) actual or threatened injury, (2) fairly

traceable to the City’s action, and (3) that the injury will likely be

redressed if they prevail in the lawsuit. Friends of the

Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 360

(5th Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992). Plaintiffs have the burden of persuasion in

A-26

establishing standing. Jd. at 361-62 (“Standing is an issue upon

which the party invoking federal jurisdiction, the plaintiff, bears

the burden of persuasion”). As the summary judgment movant

who will not have the burden of proof on this issue at trial, the

City need only point the court to the absence of evidence of

standing. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986);

Slaughter v. Allstate Ins. Co., 803 F.2d 857, 860 (5th Cir. 1986)

(stating that movant must point out to district court absence of

evidence showing genuine dispute).

The court need only address the second element because plain-

tiffs have failed to meet the requirement that the injury be ‘“‘fairly

traceable” to any City discharge violation. To establish that their

injury is ‘fairly traceable’’ to the City’s discharge, plaintiffs must

establish that the City “has (1) discharged some pollutant in

concentrations greater than allowed by its permit (2) into a

waterway in which the plaintiffs have an interest that is or may be

adversely affected by the pollutant and that (3) the pollutant

causes or contributes to the kinds of injuries alleged by the

plaintiffs.” Friends of the Earth, 95 F.3d at 360-61 (internal

quotations omitted). Plaintiffs have failed to adduce any evidence

that they have an interest in the Trinity River, which is the

relevant waterway in this case.

In general, Rule 56 obligates a party to designate the specific

facts in the record that create genuine issues precluding summary

judgment. ‘‘Rule 56 does not impose a duty on the district court to

sift through the record in search of evidence to support a party’s

opposition to summary judgment.”’ Doddy v. Oxy USA, Inc.,

101 F.3d.448, 463 (5th Cir. 1996) (citing Jones v. Sheehan,

Young, & Culp, P.C., 82 F.8d 1384, 1838 (5th Cir. 1996) );

accord Stults v. Conoco, Inc., 76 F.8d 651, 657 (5th Cir. 1996).

The court has no obligation to consider evidence that the nonmov-

‘ ant does not bring forth in opposition to the summary judgment

ais cas he

A-27

motion. Deddy, 101 F.3d at 468 (citing Copsey v. Swearingen,

86 F.8d 1886, 1847 n. 9 (5th Cir. 1994)).' To satisfy their

burden, nonmovants are required to identify specific evidence in

the record, and to articulate the precise manner in which that

evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527,

1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994) (citing

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.) cert.

denied, 506 U.S. 825 (1992)). When a party fails to refer to

items in the record, the evidence is not properly before the court in

deciding whether to grant the motion. Skotak v. Tenneco Resins,

Inc., 953 F.2d 909, 915 (5th Cir.), cert. denied, 506 U.S. 832

(1992); Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307

(5th Cir. 1988) (on rehearing) (denying rehearing after plaintiff

asserted that deposition was of record when district court granted

partial summary judgment, and holding that because plaintiff

failed to designate, or in any way refer to, deposition as source of

factual support for response to motion, deposition was never made

part of competent summary judgment record before district

court).

Plaintiffs have haphazardly listed points both in their motion

and in their response to the City’s motion. They have cited

numerous declarations, pleadings, and other-materials that they

contend support their motion and opposition to the City’s motion.

They have failed not only to refer to specific pages of these

documents in the context of each issue, but even to specify the

documents that support their position with respect to each issue.

Nowhere in their motion or response do plaintiffs identify their

specific interest in the Trinity River. Plaintiffs have therefore

'In Waheed v. H & R Block, Inc., 1998 WL 18319, at *8 (N.D. Tex.

Jan. 9, 1993) (Fitzwater, J.), for example, this court criticized a

summary judgment nonmovant who “‘‘invite[d]’ the court to review the

entirety of her two-volume deposition — some 356 pages and accompa-

nying exhibits — ‘at its leisure,’ to ascertain ‘that there are genuine

issues of material fact involved in this case.’”

A-28

failed to raise a genuine issue of material fact on this issue and to

prove this element. The court holds that plaintiffs lack standing to

assert a discharge violation under the Clean Water Act.

Plaintiffs also allege other violations of the City’s National

Pollutant Discharge Elimination System permit, such as a failure

to report and mitigate the damage from the flooding. They do not,

however, have standing to sue for these violations absent standing

to bring suit for the discharge violation. Friends of the Earth, 95

F.3d at 362 (‘an individuai without standing to sue for discharge

violations, a fortiori, lacks standing to sue for reporting viola-

tions’) (citing and discussing Sierra Club v. Srmkins Indus.,

Inc., 847 F.2d 1109, 1113 (4th Cir. 1988) ).

Accordingly, the court grants the City’s motion to dismiss

plaintiffs’ Clean Water Act claim.

Ill

The City moves for summary judgment on the Fourteenth

Amendment claim for violations of the Equal Protection, Due

Process, and Takings Clauses.

In their complaint, plaintiffs ask the court to recognize a cause

of action directly under these provisions of the United States

Constitution. It is settled, however, that plaintiffs cannot bring a

civil action against the City except through the_remedial device of

42 U.S.C. § 1983. Hearth, Inc. v. Department of Pub. Welfare,

617 F.2d 381, 382-83 (5th Cir. 1980) (“Congress has provided a

means of seeking relief against state officials who violate the

Constitution”); Azul-Pacifico, Inc. V. City of Los Angeles, 973

F.2d 704, 705 (9th Cir. 1992) (‘Plaintiff has no cause of action

directly under the United States Constitution”); Quality Refrig-

erated Servs., Inc. v. City of Spencer, 908 F. Supp. 1471, 1487

n.9 (N.D. Iowa 1995) (concluding that court had no jurisdictional

basis to entertain a Takings Clause claim where plaintiff had not

invoked § 1983, and stating that “‘[t]here simply is no direct

A-29

cause of action arising under the Constitution itself against

municipal officials for alleged constitutional violations.”)}. The

court grants the City’s motion and dismisses plaintiffs’ claims

brought directly under the United States Constitution.

The City moves for a summary judgment on plaintiffs’ state-law

takings claim, which they base or non-negligent nuisance.” Such a

claim can be asserted under the state takings provision. Bible

Baptist Church v. City of Cleburne, 848 S.W.2d 826, 830 (Tex.

App. 1993, writ denied); see also Golden Harvest Co., N.H.T. v.

City of Dallas, 942 S.W.2d 682, 689 (Tex. App. 1997, writ

denied) (‘‘[nJonnegligent, or intentional nuisance is actionable,

and the City is not immune under the Texas Torts Claim Act.’’).

The court agrees.

The City contends that plaintiffs cannot show nuisance. To

establish actionable nuisance, plaintiffs must demonstrate(1) in-

tentional invasion of another’s interests,’ (2) negligent invasion

of another’s interest, or (3) other conduct, culpable because

abnormal or out-of-place in its surroundings, that invades an-

other’s interests. Golden Harvest, 942 S.W.2d at 689. The second

type is not at issue in this case. Plaintiffs have failed to adduce

competent summary judgment evidence that would permit a

reasonable trier of fact to find in their favor. Accordingly, the

court grants the City’s motion on this ground. Plaintiffs’ nuisance,

nuisance per se, and state-law takings are dismissed. 4

“Based upon the briefing, the City is not seeking to show immunity;

instead, plaintiffs are attempting to prove non-negligent nuisance.

*The intent at issue is the intent to cause harm. City of Tyler v. Likes,

—S.W.2d_ , 41 Tex. Sup. Ct. J. 174, 184 (Tex. Dec. 11, 1997).

‘The court denies plaintiffs’ motion to strike the Stalnaker affidavit, and

motion for leave to file controverting affidavit, because the court did not

rely on the affidavit.

Plaintiffs allude to violations of the Texas Water Code, Tex.

Water Code Ann. § 26.121 (West 1988), and the Texas Solid

Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001-

361.613 (West 1992 & Supp. 1997). To the extent plaintiffs

assert separate causes of action for violations of these acts, the

court dismisses the claims because plaintiffs do not have a private

right of action under either statute. See Tex. Water Code Ann.

§§ 26.121-26.124 (West 1988 & Supp. 1997) (providing for

enforcement by state commission and “enforcement by others,”

but defining ‘‘others”’ as local governments, the Parks and Wildlife

Department, or the Attorney General); Garland Grain Co. v. D-C

Home Owners Improve. Ass'n, 393 S.W.2d 635, 640 (Tex. Civ.

App. 1965, writ ref’d n.r.e.) (holding that “the duty of prohibit-

ing pollution of public waters is vested exclusively in the state.” );

Tex. Health & Safety Code Ann. §§ 361.001-361.613 (West

1992 & Supp. 1997); North Alamo Water Supply Corp. v. Texas

Dep't of Health, 839 S.W.2d 455, 459 (Tex. App. 1992, writ

denied) (“North Alamo has not indicated how the Solid Waste

Disposal Act authorizes a private citizen to bring an enforcement

action against a party who appears to have violated a permit

provision.” ).

The City contends that the Open Courts provision of the Texas

Constitution, Tex. Const. art. 1, § 18, and the Due Course of Law

article, Tex. Const. art. 1, § 19, do not apply to this case. The

court agrees.

Plaintiffs have cited no authority for bringing a claim directly

under the Open Courts provision. In addition, this articie prohibits

the Legislature, not the courts, from abrogating or restricting a

person’s common law cause of action. See Capellen v. Capellen,

888 S.W.2d 539, 545 (Tex. App. 1994, writ denied) (holding that

A-31

‘open courts’ provision is directed at prohibiting the legislature

from abrogating or unreasonably restricting a litigant’s right to

seek redress by way of a well-established common law cause of

action.”) Plaintiffs do not have a private right of action directly

under the Due Course of Law article. Mitchell v. Amarillo kosp.

Dist., 855 S.W.2d 857 (Tex. App. 1993, writ denied) (holding

that plaintiffs could not bring a claim directly under § 19 of the

Texas Constitution).

Vil

The City also moves for summary judgment on the plaintiffs’

negligence claim, for which plaintiffs seek to avoid sovereign

immunity under the Tort Claims Act.

During construction, operation, and maintenance of its sewer

system, the City has sovereign immunity for its negligence, except

to the extent waived by the Tort Claims Act. Shade v. City of

Dallas, 819 S.W.2d 578, 582 (Tex. App. 1991, no writ). In

Texas, the Tort Claims Act waives immunity as provided in

Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1997)*° Under

the statute, property damage is only recoverable against a govern-

mental unit if the damage arises from the operation of a mo-

*Section 101.021 provides:

A government unit in the state is liable for:

(1) property damage, personal injury, and death 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, personal injury, or-death arises

from the operation or use of a motor-driven vehicle or mo-

tor-driven equipment; and

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

according to Texas law; and

(2) personal injury and death so caused by a condition or use of

tangible personal or real property if the governmental unit would,

were it a private person, be liable to the claimant according to

Texas law.

A-32

tor-driven vehicle or motor-driven equipment. The operation of the

motor-driven vehicle or equipment must cause the property dam-

age. City of San Antonio v. Winkenhower, 875 S.W.2d 388, 390

(Tex. App. 1994, no writ).

The City contends that plaintiffs cannot recover for property

damage because they have not shown that motor-driven vehicles

or equipment caused their loss. The court holds that plaintiffs have

failed to raise a genuine issue of material fact concerning the use

of motor-driven vehicles or equipment and how it caused their

loss. Although plaintiffs have provided a long list referencing all

summary judgment evidence filed in the case, they have failed to

point the court to a specific item of evidence that creates a fact

issue.° As the court has explained supra at § II(B), Rule 56 does

not obligate the court a duty to sift through the record in search of

evidence to support a party’s opposition to summary judgment.

Plaintiffs must identify specific evidence in the record, and articu-

late the precise manner in which that evidence supports their

claims. Therefore, the court dismisses plaintiffs’ claim for property

damage arising from the City’s negligence.

The City also contends that by nature of its discretionary

powers in maintaining a sewer system, it is immune from personal

injury and property damage under Tex. Civ. Prac. & Rem. Code

§ 101.056 (West 1997). As the summary judgment movants, the

City is initially responsible for informing the district court of the

basis of its motion. Celotex, 477 U.S. at 323. The court holds that

the City has not met its summary judgment burden on this issue

because it has not adequately informed the court of the basis for

this part of its motion.

‘Plaintiffs ask the court to consider their “Notice of Supplemental

Declaration Identifying Newly Discovered Evidence,” filed Septem-

ber 24, 1997. Even were the court to consider this submission in the

context of the City’s summary judgment motion, the information does

not raise a fact issue concerning how the motor-driven vehicles and

equipment caused plaintiffs’ injuries.

A-33

Vil

The City moves for summary judgment dismissing plaintiffs’

prayer for relief under both the Texas Declaratory Judgment Act

and the Federal Declaratory Judgment Act for plaintiffs’ Clean

Water Act claim, negligence claim under the Tort Claims Act,

Texas Water Code claim, and Waste Disposal Act claim. The court

has granted summary judgment for the City as to all of these

claims except for the claim for personal injury from negligence

pursuant to the Tort Claims Act. In order to entertain a prayer for

declaratory relief, there must exist a justiciable case or contro-

versy. Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977) (“[f]or

a declaratory judgment to issue, there must be a dispute which

calls, not for an advisory opinion upon a hypothetical basis, but for

an adjudication of present right upon established facts”) (quoting

Aetna Life Ins. Co. v. Haworth, 300 U.S. 277, 242 (1937);

Barcroft v. State, 900° S.W.2d 370, 372 (Tex. App. 1995, no

writ) (discussing, in context of declaratory judgment action,

necessity for justiciable controversy). Consequently, plaintiffs’

prayer for declaratory relief based on those causes of action is

dismissed as moot.

For other reasons, plaintiffs’ prayer for declaratory relief under

the Texas Declaratory Judgment Act for the remaining claim of

personal injury from the City’s negligence is also dismissed. Texas

courts have held that declaratory judgment is not appropriate

when plaintiff's cause of action for damages on the same claim is

justiciable and provides an appropriate remedy. See Tucker v.

Graham, 878 S.W.2d 681, 683 (Tex. App. 1994, no writ)

(“declaratory judgment action is not appropriate where plaintiff’s

cause of action is mature and enforceable in a pending suit that ~

involves the same parties and the same issues as alleged in the

declaratory judgment action”); Southern Traffic Bureau v.

Thompson, 232 S.W.2d 742, 750-51 (Tex. Civ. App 1950, writ

ref'd n.r.e.) (“If adequate relief, and an appropriate remedy, are

\ presently available to the complaining party through the means of

A-34

other existing forms of action or proceeding, jurisdiction for a

declaratory judgment will not ordinarily be entertained.”’) (cita-

tion omitted). Plaintiffs have a justiciable claim for negligence

under the Tort Claims Act. Therefore, declaratory judgment is not

appropriate for this claim.

As for declaratory judgment under the Federal Declaratory

Judgment Act for plaintiffs’ claim for personal injuries from the

City’s negligence, the City has not met its burden of showing that

it is entitled to summary judgment on this issue.

Finally, the City moves for dismissal of plaintiffs’ claims for

nuisance, nuisance per se, trespass, and conversion.’ The court

may not dismiss plaintiffs’ complaint for failure to state a claim

pursuant to Rule 12(b)(6) unless it appears beyond a doubt that

plaintiffs can prove no set of facts in support of their claims that

would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46

(1957). The court must accept as true the complaint’s allegations

and view them in the light most favorable to plaintiffs for

purposes of deciding the motion to dismiss. Royal Bank of Can. v.

FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.).

The court is unable to say that plaintiffs can prove no set of facts

entitling them to relief on the basis of their nuisance, nuisance

per se, trespass, and conversion claims. Therefore, the court

denies this portion of the City’s motion.

"The City alternates between asking for summary judgment on these

claims and contending that plaintiffs cannot state a claim on which

relief can be granted. The court refers to the issues of law presented in

the City’s motion, which frame the issue under Fed R. Civ. P.

12(b)(6), and decides the motion under the standards for a motion to

dismiss.

A-35

The court next addresses plaintiffs’ motion for partial summary

judgment.

Plaintiffs move for summary judgment on their Clean Water

Act claim, nuisance per se claim, Takings claim, Texas Tort

Claims Act, and prayer for declaratory relief. Some of these

claims have been eliminated by the court’s granting summary

judgment in favor of the City. As to those claims that remain

viable, the court denies plaintiffs’ motion.

Plaintiffs have failed to make cogent and comprehensible legal

arguments that are supported by summary judgment evidence

specifically designated in the record. Plaintiffs have instead listed

allegations, declarations, and other evidence filed with the court at

various times. When the party who will have the burden of proof

at trial as to a particular claim or defense moves for summary

judgment as to that claim or defense, it bears the burden of

establishing “‘beyond peradventure all of the essential elements of

the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190,

1194 (5th Cir. 1986). The summary judgment nonmovant is not

obligated to adduce any summary judgment evidence until the

movant has properly supported its motion. Afco Steel, Inc. v. Tobi

Eng’g, Inc., 893 F.2d 92, 94 (5th Cir. 1990). The nonmovant may

appropriately respond to the motion simply by pointing out that

the movant has failed to carry his burden. Isquith v. Middle South

Utils., Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488

U.S. 926 (1988). Accordingly, the court denies plaintiffs’ motion.®

‘The City has also filed motions to strike portions of plaintiffs’ summary

judgment evidence. The court has not relied on the contested parts of

plaintiffs’ evidence in deciding the City’s motion because plaintiffs have

failed to refer to it is context. These motions are also moot in light of

the court’s denial of plaintiffs’ motion.

Plaintiffs object to the City’s late filing of its summary judgment

motion. The court granted the City leave to file its summary judgment

motion on February 6, 1997. The court overrules the objection.

A-36

The court denies plaintiffs’ motion and grants in part and denies

in part the City’s motion.

SO ORDERED

April 16, 1998.

By: /s/__SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

_ =

A-37

[Doc #301] Entered November 20, 1997

In the United States District Court

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiffs,

CITY OF DALLAS, et al., Defendants.

Civil Action No. 3:95-CV-2594-D

ORDER

Plaintiffs move for reconsideration of the court’s October 14,

1997 memorandum opinion and order granting in part and deny-

ing in part defendant City of Dallas’ (“the City’s”) motion for

partial summary judgment. Except to direct additional briefing on

one issue, the court denies the motion.*

Plaintiffs have clarified in their motion for reconsideration that

their Texas Takings claim is based on nuisance and not on taking

by flooding. The court directs the City to respond to this aspect of

plaintiffs’ motion within 20 days of the date this order is filed.

Although the City has responded to plaintiff's motion for reconsid-

eration, the court has determined that the response does not

adequately address this issue. Plaintiffs shall have 15 days after

the response is filed in which to file a reply brief in support of this

part of their motion for reconsideration.

The court otherwise declines to reconsider its October 14, 1997

opinion. Plaintiffs have cited in their motion for reconsideration

evidence that they contend supports their allegation that their

damages were caused by motor-driven vehicles or equipment. It is

* Plaintiffs’ request for oral argument is denied. See Local Civil Rule

LR 7.1(g).

A-38

within the court’s discretion to consider evidence that plaintiffs

failed to point out to the court in their summary judgment

briefing. See Copsey v. Swearingen, 35 F. 3d 1336, 1348 (5th Cir.

1994) (holding that district court had discretion to reconsider

grant of summary judgment when party submitted evidence after

court had ruled on motion) (citing Lavespere v. Niagara Mach. &

Tool Works, Inc., 910 F.2d 167, 173-75 (5th Cir. 1990)). The

court declines to consider this evidence after the court has already

decided the City’s motion. Plaintiffs have failed to demonstrate a

satisfactory reason for failing to specify that this evidence sup-

ports their claim that motor-driven vehicles or equipment caused

their damages.

Accordingly, except to the extent the court directs the City to

respond to a portion of plaintiffs’ motion for reconsideration, the

motion is denied.

SO ORDERED.

November 19, 1997.

/s/_ SIDNEY A. FITZWATER

Sidney A. Fitzwater

United States District Judge

A-39

[Doc #238] Entered October 15, 1997

In the United States District Court 7

for the Northern District of Texas

Dallas Division

ERNEST A. JANIK, JR., et al., Plaintiffs,

Vv.

CITY OF DALLAS, et al., Defendants

Civil Action No. 3.95-CV-2594-D

MEMORANDUM OPINION AND ORDER

Plaintiffs Ernest A. Janik, Jr., and Leah Eileen Janik, individu-

ally, and as next friends of their minor children, move for partial

summary judgment. Defendant City of Dallas (‘City’) also

moves for partial summary judgment. For the reasons that follow,

the court denies plaintiffs’ motion and grants in part and denies in

part the City’s motion.

Plaintiffs suffered personal injuries and property damage when

sewage backed up into the house they were renting. They sue the

City under the Fourteenth Amendment (Takings, Equal Protec-

tion, and Due Process Clauses); the federal Clean Water Act,

33 U.S.C. §§ 1251-1387, the Texas Constitution (Takings, Open

Courts and Due Course of Law articles), the Texas Tort Claims

Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-101.109

(West 1997), the Texas Water Code, Tex. Water Code Ann.

§ 26.121 (West 1988); The Texas Solid Waste Disposal Act, Tex.

Health & Safety Code Ann. §§ 361.001-361.613 (West 1992 &

Supp. 1997); the federal Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202; the Texas Declaratory Judgment Act, Tex. Civ.

A-40

Prac. & Rem. Code Ann. §§ 37.001-37.011 (West 1997); the

Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.

§§ 6901-6992K; and various other state-law torts. The City

moves for summary judgment as to all of plaintiffs’ claims except

their RCRA claim. Plaintiffs move for partial summary judgment

on their Clean Water Act, nuisance per se, takings, and Texas

Tort Claims Act claims and their prayer for declaratory relief.

The court first turns to the City’s motion for partial summary

judgment, and its contention that plaintiffs lack statutory and.

constitutional standing to sue under the citizen suits provision of

the Clean Water Act, 33 U.S.C. § 1365.

Assuming arguendo that plaintiffs have statutory standing

under the Clean Water Act through a combination of a discharge

violation and other permit violations, the court turns to the City’s

assertion that the plaintiffs have failed to produce any evidence of

constitutional standing. To establish constitutional standing,

plaintiffs must show (1) actual or threatened injury, (2) fairly

traceable to the City’s action, and (3) that the injury will likely be

redressed if they prevail in the lawsuit. Friends of the Earth, Inc.

v. Crown Cent. Petroleum Corp., 95 F.3d 358, 360 (5th Cir.

1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992). Plaintiffs have the burden of persuasion in establish-

ing standing. Jd. at 361-62 (‘‘Standing is an issue upon which the

party invoking federal jurisdiction, the plaintiff, bears the burden

of persuasion’”’). As the summary judgment movant who will not

have the burden of proof on this issue at trial, the City need only

point the court to the absence of evidence of standing. Celotexr

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Slaughter v.

Allstate Ins. Co.,-803 F.2d 857, 860 (5th Cir. 1986) (stating that

A-41

movant must point out to district court absence of evidence

showing genuine dispute).

The court need only address the second element because plain-

tiffs have failed to meet the requirement that the injury be “fairly

traceable” to any City discharge violation. To establish that their

injury is “fairly traceable” to the City’s discharge, plaintiffs must