City of Keller v. Wilson

• Citation: 86 S.W.3d 693
• Decision Date: 03 July 2002
• Docket Number: No. 2-00-183-CV.,2-00-183-CV.
• Parties: The CITY OF KELLER, Appellant, v. John W. WILSON, Grace S. Wilson, Johnny L. Wilson, Nancy A. Wilson, Bursey Residential Limited, Texas Rover Realty, Inc., and Tri-West Enterprises, Inc., Appellees and John W. Wilson, Grace S. Wilson, Johnny L. Wilson, and Nancy A. Wilson, Appellants, v. Bursey Residential Limited, Bursey Joint Venture, Texas Rover Realty, Inc., and Tri-West Enterprises, Inc., Appellees.
• Court: Court of Appeals of Texas

86 S.W.3d 693

The CITY OF KELLER, Appellant, v. John W. WILSON, Grace S. Wilson, Johnny L. Wilson, Nancy A. Wilson, Bursey Residential Limited, Texas Rover Realty, Inc., and Tri-West Enterprises, Inc., Appellees and John W. Wilson, Grace S. Wilson, Johnny L. Wilson, and Nancy A. Wilson, Appellants, v. Bursey Residential Limited, Bursey Joint Venture, Texas Rover Realty, Inc., and Tri-West Enterprises, Inc., Appellees.

No. 2-00-183-CV.

Court of Appeals of Texas, Fort Worth.

July 3, 2002.

Publication Ordered October 31, 2002.

Rehearing Overruled September 12, 2002.

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Law, Snakard & Gambill, P.C., and Larry C. Bracken and Dabney D. Bassel, Fort Worth, Boyle & Lowry, L.L.P., and L. Stanton Lowry and Douglas H. Conner, III, Irving, for Keller.

David R. Casey, Hurst, for Wilson.

Barlow & Garsek, P.C., and J. Benjamin Barlow and James B. Barlow, Fort Worth, for Bursey and Texas Rover.

Bush & Morrison, P.C., and Robert L. Russell Bush and Carl J. Wilkerson, Arlington, for Tri-West.

PANEL A: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION.

Several landowners sued the City of Keller ("City") for inverse condemnation and for water code violations. The landowners also sued upstream real estate developers for trespass and for water code violations. The trial court granted summary judgments in favor of the upstream developers. The landowners' claims against the City proceeded to trial, and a jury returned a verdict for the landowners. The trial court entered judgment on the jury verdict. The City appeals the judgment entered against it. The landowners also appeal, challenging the summary judgments granted for the developers. See TEX.R.APP. P. 25.1(c). We will affirm.

II. PARTIES.

John W. Wilson and his wife Grace S. Wilson own contiguous tracts of land in the City. Johnny L. Wilson and his wife Nancy A. Wilson also own contiguous tracts of land, also in the City, adjacent to the tracts owned by John and Grace. These landowners were plaintiffs in the trial court and are collectively referred to herein as the "Wilsons." The tracts of land owned by the Wilsons are jointly referred to as the "Wilson property."

Bursey Residential Limited ("Bursey") planned and developed two residential subdivisions in the City: the Estates of Oak Run, Phases I and II. Texas Rover Realty, Incorporated ("Texas Rover") is the general partner in Bursey.¹ Tri-West Enterprises, Inc. ("Tri-West") planned and developed the residential subdivision Rancho Serena in the City. The Estates of Oak Run and Rancho Serena subdivisions are referred to herein either by name or as the "developments" or the "subdivisions."

III. BACKGROUND FACTS.

The Wilson property is located southeast of the Oak Run and Rancho Serena subdivisions. A piece of land owned by Z.T. Sebastian lies between the Wilson property and the subdivisions. Before the subdivisions were constructed, the land on which they are situated was undeveloped. The predevelopment natural flow of surface water was generally north to south across the undeveloped property, through a creek or branch on the Sebastian property, into a branch, creek or ditch on the Wilson property, and then into the Little Bear Creek Watershed.

In 1991, the City adopted a Master Drainage Plan ("Plan") for the area surrounding the Wilson property. Before the City allows any subdivision to be constructed, it requires the developer to provide for removal of run-off water resulting from a 100-year rain event. A developer's scheme to remove that run-off, though, cannot increase the flow or velocity of the water reaching downhill properties. The City approved Bursey and Texas Rover's development of Oak Run with the requirements that they construct a detention basin on the edge of the Estates of Oak Run and obtain and construct a permanent drainage easement, to be titled in the City's name, on the Sebastian property. Both the detention basin and the permanent drainage easement ("easement" or "Sebastian easement") were required by the City's Master Drainage Plan. The City approved Bursey's designs for the detention basin and the easement as complying with the Plan, and Bursey and Texas Rover built them.

Both subdivisions diverted water into the easement. Although the Plan showed the drainage easement extending across the Wilson property, the easement required by the City and built by the developers ended at the edge of the Wilson property, allowing the water to run freely out of the easement channel across the Wilson property. The construction of the easement resulted in increases in the volume and velocity of water flowing across the Wilson property, damaging the property.

IV. PROCEDURAL HISTORY.

The jury returned findings favorable to the Wilsons on both their inverse condemnation special questions and their water code violation special questions. The Wilsons elected to recover on their inverse condemnation claim, and the trial court entered judgment for the Wilsons and against the City on that theory.

The trial court granted two summary judgments for Bursey and Texas Rover, disposing of both of the Wilsons' claims against them. The trial court granted summary judgment for Tri-West on the Wilsons' claims the day before trial.

V. THE CITY'S APPEAL.

In seven issues on appeal, the City complains: that the Wilsons' failure to plead, and the judgment's failure to contain, a legal description of the property inversely condemned is fundamental error and renders the judgment void; that legally and factually insufficient evidence exists that the City acted "intentionally"; that the City should not be liable for damage caused by drainage facilities installed by a private developer; that the trial court erred by admitting a particular exhibit; and that the evidence is legally and factually insufficient to support the jury's finding that the City diverted the natural flow of surface water.

A. The City's Appellate Issues Regarding Inverse Condemnation.

1. Property Description.

In issues one and two, the City claims that the Wilsons' failure to include in the pleadings and judgment a legal description of the property inversely condemned deprived the trial court of jurisdiction over the suit and renders the judgment void. The Wilsons argue that no legal description of inversely condemned property is necessary and that, in any event, the City waived this contention by failing to specially except to the Wilsons' pleadings.

The City cites several cases in support of its contention that the Wilsons failure to plead a legal description of the condemned property deprived the trial court of jurisdiction. See Miers v. Hous. Auth., 153 Tex. 236, 239, 266 S.W.2d 842, 844 (Tex. 1954); Wooten v. State, 142 Tex. 238, 240-41, 177 S.W.2d 56, 57 (Tex.1944); Parker v. Fort Worth & D.C. Ry., 84 Tex. 333, 19 S.W. 518, 519 (1892); Lin v. Houston Cmty. Coll. Sys., 948 S.W.2d 328, 332 (Tex. App.-Amarillo 1997, writ denied). These cases, however, involve condemnation actions brought by the State, not inverse condemnation claims. A governmental entity is clearly required to plead in its condemnation petition a description of the land it seeks to condemn. TEX. PROP.CODE ANN. § 21.012 (Vernon 1984); see also Duncan v. Calhoun, 28 S.W.3d 707, 709 (Tex.App.-Corpus Christi 2000, pet. denied) (outlining procedure for condemnation action by condemning authority). Such a pleading is required so that the condemnee is on notice of what land the governmental entity is seeking. State v. Nelson, 160 Tex. 515, 518, 334 S.W.2d 788, 790 (1960); Lin, 948 S.W.2d at 332.

In an inverse condemnation proceeding, however, the alleged taking or damaging of property has already occurred. Our research has not revealed any support for the proposition that a landowner bringing suit for an inverse condemnation that has already occurred is required to plead a property description to vest the trial court with jurisdiction. We overrule the City's first issue.

The City argues that if it took the Wilson property for public use and must pay damages for that taking, then it is entitled to a transfer of title to the property. It is well-settled in Texas that the "government's duty to compensate for damaging property for public use ... [is] not dependent upon the transfer of property rights." State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994) (holding compensable inverse condemnation occurred despite lack of transfer of property rights); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (same). The Wilsons are entitled to compensation for the damaging of their property for public use, notwithstanding their failure to transfer property rights to the City.

Next, the City contends that the judgment is void because it does not contain a description of the property inversely condemned. The City argues that "the failure of the Judgment ... to describe the properties taken is a fundamental error which directly and adversely affects the interest of the public generally." The City did not, however, seek title to the property in the trial court either directly or alternatively in its pleadings, in its motion for judgment notwithstanding the verdict, or in its objections to the Wilsons' proposed judgment. Accord Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979) (holding trial court cannot grant relief not supported by pleadings); Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex.App.-Austin 2000, no pet.) (same); City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221, 222 (1937) (holding default judgment awarding City "right and title" to two lots was "fundamentally erroneous" because "the [C]ity's answer did not contain a cross-action ... to try the title to the lots."); see also Tex. W.R. Co. v. Cave, 80 Tex. 137, 15 S.W. 786, 786 (1891) (vesting title in railroad because it filed a cross-action for condemnation in plaintiffs inverse condemnation claim).

Nor was the issue of...