City of Keller v. Hall, No. 02–12–00061–CV.

CourtCourt of Appeals of Texas
Writing for the CourtLEE ANN DAUPHINOT
Citation433 S.W.3d 708
Decision Date12 June 2014
Docket NumberNo. 02–12–00061–CV.
PartiesThe CITY OF KELLER, Appellant v. Kimberlee Diane Meadors HALL and A. Thomas Hall, Appellees.

433 S.W.3d 708

The CITY OF KELLER, Appellant
Kimberlee Diane Meadors HALL and A. Thomas Hall, Appellees.

No. 02–12–00061–CV.

Court of Appeals of Texas,
Fort Worth.

May 1, 2014.
Rehearing Overruled June 12, 2014.

[433 S.W.3d 711]

Daniel R. Barrett, Fredrick “Fritz” Quast, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, for Appellant.

Michael J. Vernone, Needham Vernone, Dallas, for Appellees.




In this case, we consider whether Appellant the City of Keller established as a matter of law that the trial court had no jurisdiction over the inverse condemnation claim brought by Appellees Kimberlee Diane Meadors Hall and A. Thomas Hall. The Halls sued the City alleging that various actions by the City caused repeated flooding of their property. The City filed a plea to the jurisdiction, which the trial court denied. The City then filed this interlocutory appeal. In two issues, the City argues that the trial court erred by denying the plea to the jurisdiction because the evidence was insufficient to support a taking claim and because the Halls did not give the City notice of its claim before filing suit. Because we hold that the trial court did not err by denying the plea to the jurisdiction, we affirm.


Kimberlee and her former husband bought the property consisting of approximately 5.37 acres (the Property) and constructed improvements on it, including a residence, an outbuilding, and two barns. The Property is located in Keller. When Kimberlee purchased the Property, much of it was within the 100–year floodplain.

Keller Smithfield Road runs along the western boundary of the property. Big Bear Creek runs just to the north of the Property in a generally west-to-east direction and then turns south to run through the eastern part of the Property. Bear Creek Parkway runs along the Property's southern boundary. After the Halls purchased the Property, a golf club was constructed south of the Property (and downstream of Big Bear Creek) by GCP Keller Golf LP d/b/a Sky Creek Ranch Golf Club. The Property is therefore more or less bordered on the west side by Keller Smithfield Road, to the north by Big Bear Creek, and to the south by Bear Creek Parkway and the golf club, with the creek also running through the eastern portion of the Property.

In their petition, the Halls complained about the City's widening the creek bed of Big Bear Creek, raising the road bed of Keller Smithfield Road, and replacing the bridge on that road that passes over the creek. They also complained generally about the City's management and maintenance of the Big Bear Creek waterway

[433 S.W.3d 712]

and of its authorization of development by others.

The Halls also sued GCP for nuisance. They asserted that in connection with development of the golf club, GCP made changes to the elevation of its property and “also constructed buildings and other structures, some of which ... invade the 100 year flood plain of Bear Creek,” causing water in Bear Creek to back up and flood onto the Property.

The City answered and filed a combined plea to the jurisdiction and motion for summary judgment. The City argued that to be liable on an inverse condemnation claim, a governmental entity “must act for the purpose of causing the invasion onto the property or must have known that the invasion was substantially certain to result from its actions.” The City asserted that the trial court lacked jurisdiction because the evidence established as a matter of law (1) that none of the alleged actions of the City proximately caused the flood damages and that (2) the City did not know and was not substantially certain that damage to the Property was going to occur when it took the actions complained of by the Halls. The City also alleged that the trial court lacked jurisdiction because the evidence established as a matter of law that the Halls failed to comply with a provision of the City's charter requiring them to give written notice of their claim to the city.

As a ground for traditional summary judgment, the City asserted the affirmative defense of consent, arguing that by building in a floodplain, the Halls consented to the damaging of the Property. The City also reframed its jurisdiction arguments as no-evidence summary judgment grounds.

Among its attached evidence, the City included the affidavit of city secretary Sheila Stephens. Stephens attached twenty-two exhibits from the City's records, including the City's charter and documents from the Federal Emergency Management Agency (FEMA).

In their response, the Halls asserted that they had pled multiple acts of invasive flooding “which, according to the Halls' expert, was substantially certain to occur based on the information the City knew, both at the time of the [public works project], and in the years since during in which [sic] these multiple floods have occurred.” The Halls asserted that from 1982 to the present, the City underwent significant urbanization “such that the drainage of [the creek] must carry substantially more water from rain and storm run-off now than it did in 1982,” that construction by the City had “effectively turned the Property into a detention pond,” and that the Halls had put the City on notice of growing drainage and flooding problems as far back as 1999. The Halls attached to their response a report from Frederick Ehler, an engineer hired by the Halls to perform a drainage investigation of the area around the Property. Also with their response, the Halls filed multiple objections to the City's summary judgment evidence.

The trial court sustained a number of the Halls' objections to the City's summary judgment evidence but overruled the Halls' objections to Stephens' affidavit. The trial court overruled the City's plea to the jurisdiction, its tradition summary judgment motion, and its no-evidence summary judgment motion. The City then filed this appeal of the trial court's denial of its plea to the jurisdiction. The Halls, the City, and GCP filed an agreed motion to stay trial proceedings while this appeal is pending.

Standard of Review

A plaintiff has the burden of alleging facts that affirmatively demonstrate

[433 S.W.3d 713]

that the trial court has subject-matter jurisdiction. 1 When a plea to the jurisdiction challenges the pleadings, a court looks at the allegations in the plaintiff's pleadings and accepts them as true. 2 If, however, the plea to the jurisdiction challenges the existence of jurisdictional facts, a court must also consider the relevant evidence necessary to resolve the jurisdictional issues raised.3

When a jurisdictional challenge also implicates the merits of the plaintiff's claim, then the trial court considers the evidence submitted by the parties to determine if a fact question exists.4 If the evidence creates a fact question about the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction; instead, the trial court must leave the fact issue for determination by the factfinder.5 But if the evidence is undisputed, or if the evidence does not raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.6

We review a trial court's ruling on a plea to the jurisdiction de novo.7 When reviewing the trial court's determination of a plea to the jurisdiction when the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor.8

Inverse Condemnation

Article 1, section 17 of the Texas Constitution provides, “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.” 9 The three distinct claims allowed by this section—taking, damaging, and destruction of property—are all commonly referred to as a “taking.” 10

A taking may be physical or regulatory.11 A physical taking may occur when the government unreasonably interferes with a landowner's right to use and enjoy his or her private property.12 When a government takes property without compensating the landowner, the owner may recover damages for inverse condemnation.13 Whether particular facts rise to the level of a taking is a question of law.14 Mere negligence that eventually contributes to property damage does not constitute

[433 S.W.3d 714]

a taking.15 To establish a taking claim, the plaintiff must show that “(1) a governmental entity intentionally performed certain acts (2) that resulted in a taking or damaging of property (3) for public use.” 16 Thus, only an intentional act will give rise to liability under this constitutional provision.17

Not every intentional act by a governmental entity will give rise to a taking claim. A plaintiff's taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government's act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’ ” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus, liability for a taking arises when a governmental entity physically damages private property in order to confer a public benefit if that entity “(1) knows that a specific act is causing identifiable harm; or (2) knows that the specific property damage is substantially certain to result from an authorized government action—that is, that the damage is ‘necessarily an incident to, or necessarily a consequential result...

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    ...characteristics of a flooding source and thus result in the modification of the existing regulatory floodway." City of Keller v. Hall , 433 S.W.3d 708, 717 & n.51 (Tex. App.—Fort Worth 2014, pet. denied) (citing 44 C.F.R. § 72.2 (West, Westlaw through Aug. 10, 2018) ).8 Ray sold the Phase 1......
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