Dalon v. City of DeSoto

• Decision Date: 15 September 1992
• Docket Number: No. 05-91-01548-CV,05-91-01548-CV
• Citation: 852 S.W.2d 530
• Court: Texas Court of Appeals
• Parties: Steven DALON and Judith Dalon, Appellants, v. CITY OF DeSOTO, Texas, Appellee.

Page 530

852 S.W.2d 530

Steven DALON and Judith Dalon, Appellants, v. CITY OF DeSOTO, Texas, Appellee.

No. 05-91-01548-CV.

Court of Appeals of Texas Dallas.

Sept. 15, 1992.

Rehearing Denied Dec. 18, 1992.

Susan Barilich, Dallas, for appellants.

R. Wayne Gordon, Robert G. Hogue, Carlos A. Balido, Dallas, for appellee.

Before ENOCH, C.J., and BISSETT ¹ and CARVER ², JJ.

OPINION

BISSETT, Justice (Retired).

Steven Dalon and Judith Dalon, plaintiffs in the trial court (hereinafter "appellants"), appeal from an order granting summary judgment against them and in favor of the City of DeSoto, Texas (hereinafter "appellee"). We affirm.

PLEADINGS

This suit arises from alleged water erosion of appellants' property located at 724 Arbor Creek Drive, DeSoto, Texas. Appellants filed suit against appellee on December 13, 1990, alleging negligence, inverse condemnation, and violations of the Texas Water Code resulting in damage to and loss of their real property. Appellee filed a general denial and further asserted that the damages were caused by appellants' acts and omissions, which constituted negligence, proximately causing the alleged damages. Appellee also pleaded that it was entitled to governmental immunity and subject only to limited liability under the Texas Tort Claims Act, that appellants' cause of action was barred by limitations, and that appellants failed to give timely and actual written notice of their claims within the time required by its charter and the Texas Tort Claims Act.

Appellee filed a motion for summary judgment on July 16, 1991, alleging that appellants as a matter law of were not entitled to a recovery of damages due to its asserted defenses. Appellants filed a response to the motion on August 2, 1991. Both parties rely on summary judgment evidence consisting of affidavits, depositions, exhibits, admissions, and certified copies of public records. Summary judgment was rendered in favor of appellee on September 18, 1991.

FACTS

Appellee owns a drainage easement that crosses the rear of appellants' residential property. The easement is unimproved and covers a steep vertical drop of about thirty feet from the back of appellants' yard to the bed of Heath Creek, which bounds their property. Heath Creek is a natural creek classified by appellee as a storm sewer. Natural rainfall and water flowing along Heath Creek caused erosion of which appellants first became aware in 1986.

On July 18, 1989, appellants appeared before appellee's city council verbally expressing concern about the flooding along Heath Creek and claiming that they lost half their yard from erosion. On September 26, 1990, appellants' attorney notified the mayor in writing of the property damage to appellants' property caused by erosion.

Deposition testimony of Steven Dalon was attached to appellee's motion for summary judgment and to appellants' response. Dalon testified that he first noticed minimal erosion in 1986, that erosion caused by rains had continued since then, and that substantial erosion occurred in May 1989 after heavy rains. He further testified that appellee channelled water into the creeks by routing storm sewers into Heath Creek when it should have built other storm sewers "to channel the water off instead of dumping it into creeks." He also said that the rising waters of Heath Creek never overflowed its natural banks at any place but noted that the erosion had "widened" the creek.

Appellee's director of public works, Gordon Mayer, Jr., provided deposition testimony that was attached to appellee's motion for summary judgment. Mayer testified that the area experienced major flooding because of the unusually heavy rains in 1989 and 1990, that such flooding was considered "a fifty year event," and that the additional water in the creek "would imply additional erosion" of the banks. He further testified that erosion is a natural occurrence, "the magnitude of it will depend on rainfall and flow," and that the erosion of appellants' property "is just the result of certain unusual rainfall activity."

By affidavit attached to appellants' response, Gary Pettit, a registered professional engineer, stated that by observation, he estimated that about ten feet of appellants' backyard had been lost to erosion caused by "flood waters." Pettit explained that the "easement area has not been properly maintained or repaired with slope protection, a retaining wall or other erosion protection measures to hold the land in place." Pettit further stated: "It is not normal erosion however, which has caused the loss of 10 feet of the Dalon's backyard, but rather, the extreme, rapid erosion which was first observed in May, 1989."

Additional evidence was presented that residential upstream development caused added rainfall water to drain into Heath Creek, contributing to appellants' problems.

CONTENTIONS OF THE PARTIES

Appellants present eight points of error. In summary, they contend that the trial court erred in granting summary judgment against them on their claim of negligence since appellee failed to prove any defense that bars their claims as a matter of law and that material issues of fact exist that preclude the granting of summary judgment.

Appellee responds that it is not liable for the claims asserted by appellants because: (1) appellants' negligence claim is barred by the two-year statute of limitations; (2) appellants failed to give timely and adequate notice of their claim as provided by its charter and the Texas Tort Claims Act; (3) appellants' claim of negligence is barred as a matter of law by the doctrine of governmental immunity under the Texas Tort Claims Act; (4) appellants' inverse condemnation claim under article I, section 17 of the Texas Constitution is barred as a matter of law since there is not a taking of, or damage to, their real property for public use; and (5) appellants' claim under the Texas Water Code is barred as a matter of law. Appellee further contends that there are no genuine issues as to any material facts and that it is entitled to summary judgment as a matter of law.

THE LIMITATIONS QUESTION

The water erosion to appellants' property constitutes a permanent injury to land as defined by Texas courts. Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984); Gulf Coast Sailboats, Inc. v. McGuire, 616 S.W.2d 385, 387 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.). The determination of whether injury to land is permanent depends on whether the injury is constant and continuous. Bayouth, 671 S.W.2d at 867.

Appellants argue that their negligence claim is not barred by the statute of limitations since their cause of action did not accrue until May 1989. Appellants admit that the erosion to their property began in 1986 and is continuous. This erosion is due to natural rainfall and the water flow along Heath Creek abutting appellants' property.

Appellants' property damage claim is governed by the two-year statute of limitations. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986). It is undisputed that appellants first experienced and discovered water erosion to the rear of their property in 1986 and that they did not file suit until December 13, 1990, well outside of the limitations period. In his argument, appellant cites to a case that holds that the statute of limitations begins to run upon discovery of the first actionable injury and not on the date when the extent of the damages to the land are ascertainable. Bayouth, 671 S.W.2d at 868. However, appellants attempt to distinguish between minimal injury to their property and substantial injury to their property. None of the cases cited by appellants make such a distinction; instead, these cases refer only to an "injury."

The injuries suffered by appellants in 1986 caused a loss to their property. Appellants were aware of this loss and could have sought relief. Therefore, the erosion which began in 1986 and was discovered by appellants in 1986, was an actionable injury for permanent damages, which suit should have been filed within two years of its discovery. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986); Bayouth, 671 S.W.2d at 868. Suit was not filed within that time period. Therefore, appellants' negligence claim is barred by the statute of limitations.

THE TIMELINESS AND ADEQUACY OF NOTICE

Assuming for the sake of argument that suit was not barred by the two-year statute of limitations, there are other reasons why suit was barred. It is undisputed that appellants gave verbal notice of their claims to appellee's city council on July 18, 1989, when they appeared in person before the council. It also is undisputed that appellants gave formal notice of their claims to the mayor by letter dated September 26, 1990, signed by their attorney. The letter describes the injury as follows:

Their home and the lot on which it is built have been affected by very serious erosion problems due to the failure of the City of DeSoto to properly channel the water drainage in the area and the concommitant [sic] failure of the City to properly maintain and repair the floodway easement which traverses the back of the Dalon's property.

What is happening is that an excessive volume of water has apparently been channeled by the City into Heath Creek such that every time the creek rises or flooding occurs a portion of the Dalon's back year [sic] is literally washed away. At this point in time, there are only several feet between the back of the Dalon's house and the creek bank. Not only have they lost the use of their back yard as a result of this problem, but the remaining soil in the bank has become unstable and extremely expensive corrective measures need to be taken to stabilize it, some of which would require repair work to adjacent properties as well. Needless to say, this has also had a direct impact on the value of their home and has greatly impeded their efforts to sell it.

Appellee argues that appellants have failed to...