City of Watauga v. Taylor

• Decision Date: 08 June 1988
• Docket Number: No. 2-87-160-CV,2-87-160-CV
• Citation: 752 S.W.2d 199
• Parties: CITY OF WATAUGA, Appellant, v. George TAYLOR and Barbara Taylor, Appellees.
• Court: Texas Court of Appeals

Page 199

752 S.W.2d 199

CITY OF WATAUGA, Appellant, v. George TAYLOR and Barbara Taylor, Appellees.

No. 2-87-160-CV

Court of Appeals of Texas,

Fort Worth.

June 8, 1988.

Wynn, Brown, Mack, Renfro & Thompson, Douglas R. Hudman, Fort Worth, for appellant.

Susan M. Horton and Carl J. Shahady, Austin, for amici curiae Texas Municipal League and the Texas City Attorney's Ass'n, submitted in support of appellant.

Hill, Heard, O'Neal, Gilstrap & Goetz, Frank Gilstrap and Michael Rossetti, Arlington, for appellees.

Before FENDER, C.J., and FARRIS and LATTIMORE, JJ.

OPINION

FENDER, Chief Justice.

George and Barbara Taylor, appellees, brought suit against the City of Watauga, Texas, appellant, for damages for injury to real and personal property resulting from the flooding of their home which is bordered by drainage ditches maintained by the City. The jury awarded appellees $3,000 for damages to their home, $6,800 for destruction of fixtures and personal property, and $19,500 for mental anguish. Attorneys' fees were set by the court at $15,000. Appellant appeals from this adverse verdict.

We affirm in part and reverse and render in part.

Appellees purchased their home in 1974. When they moved into the house a small drainage ditch bordered the entire north side of the lot. The ditch began above appellees' home in an undeveloped area to the east and emptied into a larger drainage facility immediately west of the lot. The east-west drainage ditch was located in a fifty-foot dedicated public drainage easement maintained by appellant.

Just to the east of appellees' property line was the Barrow bridge, a solid stone structure which crosses one of the drainage ditches immediately upstream from and adjacent to appellees' lot. The Barrow bridge contained five small culverts to allow water to pass.

In 1974 the Federal Insurance Administration notified appellant that it had designated several areas as "flood hazard areas" which would be theoretically inundated by water during a 100-year storm. ¹ Appellees' home, along with property on both sides of the drainage ditch to the east, was located within one of these areas.

In April 1977 appellant considered a proposed plat for a new residential development, Phase I of the Sunnybrook Addition. As planned, and as ultimately built, Sunnybrook would cover 230 acres on both sides of the drainage ditch immediately upstream from appellees' home. Phase I would begin just above the Barrow bridge and would border appellees' property line. Phases II through V would be built further east. All 230 acres would drain into the drainage ditch just above the Barrow bridge.

In October 1981 an extremely strong rainstorm, approaching a 100-year storm, inundated Tarrant County and surrounding counties with more than 10 inches of rain in three days. Homes, including appellees', throughout Watauga, Texas, suffered extensive damage in that flood. In March 1985 Watauga experienced another heavy rainfall which caused erosion along one of the eastern drainage ditches adjacent to appellees' home. At the same time, cracks appeared in the walls, foundation, and floor of appellees' home where it bordered the drainage ditch.

Appellees filed this suit against appellant on June 8, 1983, alleging, among other things, that the development and construction of Sunnybrook Addition resulted in a substantial increase and diversion in the flow of surface water from the Sunnybrook Addition onto appellees' property. The case was submitted to the jury under the theory that appellant might be liable to appellees for alleged breaches of duty in four separate areas as follows:

A) The City's decision to approve the plats for the Sunnybrook Addition development;

B) The City's duty to construct drainage improvements downstream from the Sunnybrook Addition;

C) The City allowing the Barrow bridge to be constructed or to remain in place; and

D) The City's failure to maintain the drainage easement. ²

Appellees sought to establish liability by seeking a finding that appellant's actions under any of these subsections were either intentional and unreasonable (special issue 1), negligent (special issue 2), or "willful, heedless and reckless disregard of or with conscious indifference to the rights of others" (special issue 6). The jury gave affirmative answers only to special issues 2 and 6.

On the basis of the jury's findings, the trial court rendered a judgment in favor of appellees awarding $3,000 for damages to appellees' home, $6,800 for destruction to appellees' personal property and fixtures, $19,500 for mental anguish, and $15,000 for attorneys' fees.

On appeal, appellant challenges the basis for each of the above awards with the exception of the $3,000 for property damages. Appellant agreed that the $3,000 for damages arising out of appellant's negligent maintenance of the drainage ditches, which in turn caused hairline cracks to walls and the garage floors of appellees' home in 1985, was supported by the evidence.

Appellant asserts in points of error one and two that the trial court erred in awarding mental anguish and personal property damages because appellant is immune from liability under the doctrine of governmental immunity, and appellees failed to prove any cause of action to support mental anguish damages.

The Texas Supreme Court has held that the approval of a plat is a governmental function and the subject of governmental immunity; thereby, a city cannot be held liable for negligently approving a plat. City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985). Therefore, we are left only to determine whether the two remaining disputed actions of appellant which form the basis of its liability, i.e., failing to cause drainage improvements downstream and allowing construction of the Barrow bridge or allowing it to remain in place, also fall within the purview of governmental immunity.

The basic rule is that the construction of sewers and drains is within the discretion of the governing body of the city so long as the city's action does not increase the flow of surface water across the land in question. City of Dallas v. Winans, 262 S.W.2d 256, 259 (Tex.Civ.App.--Dallas 1953, no writ); City of Houston v. Bryan, 2 Tex.Civ.App. 553, 22 S.W. 231 (1893, no writ); compare City of Houston v. Hutcheson, 39 Tex.Civ.App. 337, 81 S.W. 86 (1904, writ ref'd) (city liable for flooding where water diverted by paving street). Governmental immunity applies when a city exercises discretionary powers of a public nature embracing judicial or legislative functions. Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396, 398-99 (1943). Judicial power refers to the power conferred upon a public officer to adjudicate the rights of individual citizens by construing and applying the law. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942). The governing body of a city has the power to establish, erect, construct, regulate, and keep in repair, bridges, culverts, and sewers, and to regulate the construction and use of the same. TEX.REV.CIV.STAT.ANN. art. 1015(9) (Vernon Supp.1988). Thus, the planning and construction of drainage improvements is a quasi-judicial exercise of police power and a governmental function within the province of governmental immunity. Accordingly, appellees have no cause of action against appellant for failure to provide drainage improvements, subsection B of special issues 1, 2, 3, 4, and 6. However, had appellant itself negligently maintained or negligently constructed a storm sewer, appellant would be liable because the acts of constructing and maintaining a storm sewer would be ministerial acts which could be performed by a private subcontractor. See City of Round Rock, 687 S.W.2d at 303. See also City of Houston v. Renault, Inc., 431 S.W.2d 322, 325 (Tex.1968).

Insofar as appellant's point of error twelve challenges the legal and factual sufficiency of the evidence to support the jury finding that appellant negligently caused an invasion of water onto appellees' property by allowing the bridge to be constructed or to remain, subsection C of special issues 1, 2, 3, 4, and 6, we will address this point as it relates to point of error one.

In determining appellant's "no evidence" points, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In contrast, we are required to consider all of the evidence in the case in determining appellant's "insufficient evidence" points. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The Barrow bridge was in place at the time appellees purchased their property. After appellees moved in, they actually helped build a retaining wall as an addition to the bridge. The Barrow bridge could hold a flow of 380 cubic feet per second (CFS) of water. Prior to the Sunnybrook Addition development, the 230 acres of property where Sunnybrook is located would generate a flow of 250 CFS of water through the drainage ditch under a 100-year storm. Thus, the capacity of the bridge was adequate. There was no evidence introduced of a defective construction of the bridge. We find no evidence to support a finding of negligence in appellant initially constructing the bridge, subsection C of special issues 2 and 6.

The development of Sunnybrook did increase the flow of water through the drainage ditch under 100-year storm condition to 748 CFS. With Sunnybrook developed, the capacity of the Barrow bridge was inadequate. However, special issues 2 and 6 asked the jury to find whether appellant was negligent in allowing the bridge to remain. This is not the same as to seek a finding of appellant negligently maintaining a storm drainage ditch. The word maintaining is defined as "to keep in a state of repair." WEBSTER'S...