AN COLLISION CENTER v. Town of Addison, 05-09-00272-CV.

• Court: Texas Court of Appeals
• Writing for the Court: FILLMORE
• Citation: An Collision Ctr. of Addison, Inc. v. Town of Addison, 310 SW 3d 191 (Tex. App. 2010)
• Decision Date: 12 April 2010
• Docket Number: No. 05-09-00272-CV.,05-09-00272-CV.
• Parties: AN COLLISION CENTER OF ADDISON, INC. d/b/a Bankston Collision Center, Appellant, v. The TOWN OF ADDISON, Appellee.

310 SW 3d 191

AN COLLISION CENTER OF ADDISON, INC. d/b/a Bankston Collision Center, Appellant, v. The TOWN OF ADDISON, Appellee.

No. 05-09-00272-CV.

Court of Appeals of Texas, Dallas.

April 12, 2010.

Bryan D. Perkins, Amanda Maxine Inabnett, Gibson, McClure, Wallace & Daniels, LLP, Dallas, TX, for Appellant.

Robert F. Maris, Maris & Lanier, P.C., Dallas, TX, for Appellee.

Before Justices MOSELY, FITZGERALD and FILLMORE.

OPINION

Opinion By Justice FILLMORE.

Appellant AN Collision Center of Addison, Inc. d/b/a Bankston Collision Center appeals the summary judgment granted appellee The Town of Addison. In two issues, Collision Center contends the trial court erred in granting Addison summary judgment on the affirmative defense of limitations to Collision Center's request for abatement of a nuisance and on Collision Center's claim that Addison intentionally diverted rainwater off its property and onto Collision Center's property. We affirm the trial court's judgment.

Background

The Addison Airport was constructed in 1956 and 1957 by a third-party. Addison purchased the Airport in 1976. In 1997, Collision Center purchased real property located on Lindbergh Drive that lies adjacent to the southern end of the Airport on which Collision Center operates a vehicle paint and body repair shop. Since at least 1992, including the period of Collision Center's ownership, the property has flooded every time there is a hard rain lasting more than fifteen minutes.

Collision Center filed suit against Addison¹ alleging that its premises were flooded on eight occasions between January 3, 2005 and March 18, 2008. In its petition, Collision Center alleged Addison diverted or impounded rainwater from the Airport onto Collision Center's property. Collision Center alleged that because Addison's diversion or impounding of water was intentional and with knowledge that the flooding of Collision Center's property would occur, Collision Center's damages are the result of a taking in violation of article I, section 17 of the Texas Constitution. See TEX. CONST. art. I, § 17 ("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."). Collision Center further alleged Addison's diversion of water is a compensable nuisance under article I, section 17 of the Texas Constitution. Collision Center requested the trial court abate the continuing nuisance in the form of injunctive relief under chapter 65 of the civil practice and remedies code. See Gen. Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 834 (Tex.App.-Dallas 2000, no pet.) (party may be entitled to abatement of nuisance or damages if not susceptible to abatement).

Addison filed a traditional and no-evidence motion for summary judgment on Collision Center's claims.² Without stating the ground or grounds, the trial court granted Addison summary judgment as to all of Collision Center's affirmative claims for relief. Collision Center appealed.

Standard of Review

The standard for reviewing a traditional summary judgment is well established. See TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment must show the plaintiff has no cause of action. A defendant may meet this burden by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. See Gen. Mills, 12 S.W.3d at 832. A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. See Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982); Ling v. BDA & K Bus. Servs., Inc., 261 S.W.3d 341, 345 (Tex.App.-Dallas 2008, no pet.). After the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence creating a fact issue. See Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex. App.-Dallas 1999, no pet.)

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See TEX.R. CIV. P. 166a(i); Gen. Mills, 12 S.W.3d at 832-33. Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833. When analyzing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. See Nixon, 690 S.W.2d at 549 (traditional summary judgment); Gen. Mills, 12 S.W.3d at 833 (no-evidence summary judgment).

Where, as here, the trial court's order granting summary judgment does not state the ground or grounds relied on for its ruling, the summary judgment will be affirmed on appeal if any of the theories advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Discussion

On appeal, Collision Center has challenged only the summary judgment granted on its request for abatement of the alleged nuisance. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex.App.-Dallas 2009, pet. denied) (if appellant does not challenge each possible ground on which summary judgment could have been granted, summary judgment upheld on unchallenged ground or grounds). Therefore, we consider whether any ground asserted by Addison supports the summary judgment on Collision Center's request for abatement of the alleged nuisance.

We begin our analysis with Collision Center's second issue, in which it contends the trial court improperly granted Addison's no-evidence summary judgment because there was evidence in the record to create a genuine issue of material fact that Addison intentionally diverted rainwater off its property and onto Collision Center's property with knowledge that flooding would result, was resulting, or was substantially certain to result.

Addison is a governmental subdivision. A nuisance claim can only be brought against a governmental entity if that nuisance rises to the level of a constitutional taking or unless governmental immunity is specifically waived by the Texas Tort Claims Act. See City of Dallas v. Jennings, 142 S.W.3d 310, 315-16 (Tex. 2004); see also Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001) (to establish takings claim, claimant must prove governmental entity intentionally performed certain acts that resulted in "taking" of property for public use). Negligence contributing to damage to property does not constitute a taking. City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997). Collision Center cannot maintain a suit against Addison for any negligent nuisance, or for an abatement thereof, and Collision Center acknowledges it is not suing Addison for negligence.

On appeal, Addison contends the trial court properly granted summary judgment as to Collision Center's request to abate a continuing nuisance because Collision Center did not produce a scintilla of evidence showing that Addison performed any intentional act that damaged Collision Center. Collision Center acknowledges that in order to refute the motion for summary judgment on its claim that Addison created a nuisance in violation of article I, section 17 of the Texas Constitution, the burden is on Collision Center to produce sufficient evidence that Addison performed an intentional act that resulted in the flooding. See Jennings, 142 S.W.3d at 314.

Collision Center argues it produced more than scintilla of evidence of intentional, unlawful acts by Addison. Collision Center asserts the summary judgment record contains evidence that Addison has caused flood waters to flow onto Collision Center's property; Addison has knowledge that the development and alteration of the natural landscape of the Airport has caused the flooding on Collision Center's property³; and Addison has knowledge that the flooding of Collision Center's property is substantially certain to continue unless Addison acts to alleviate its diversion of rainwater. Collision Center asserts this satisfies its obligation to produce evidence of intentional conduct for purposes of Collision Center's nuisance claim under the Texas Constitution.

Collision Center has not alleged, nor produced any summary judgment evidence of, an act by Addison that caused the flooding on Collision Center's property. Collision Center's summary judgment evidence with regard to an intentional act that caused flooding of its property is the original construction of the Airport, which occurred in 1956 and 1957, before Addison purchased the Airport in 1976. Collision Center's expert, Jim Koch, was asked by Collision Center to perform an analysis of flooding conditions occurring on Collision Center's property. Koch did not offer any test results that indicate flooding on Collision Center's property occurred for any reason other than the construction of the Airport or that show any action of Addison increased the flooding of Collision Center's property.

Collision Center contends there is summary judgment evidence that Addison maintained and operated the airport with knowledge that flooding of Collision Center's property was an inevitable result. It is uncontested that Addison has maintained and operated the Airport since it purchased the Airport in 1976. However, Collision Center has produced no evidence that the maintenance and operation of the airport caused or causes the flooding of Collision Center's property.

We disagree with Collision Center's assertion that language of City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex.1968) "strongly suggests" that Addison's continued maintenance of its property, with knowledge of the flooding to Collision Center's property, was sufficient to satisfy the intentional act requirement. In Renault, the plaintiffs complained of the city's maintenance of a roadway and existing culvert, which caused flooding of the...