Jennings v. City of Dallas
| Decision Date | 17 July 2001 |
| Docket Number | No. 05-98-01831-CV.,05-98-01831-CV. |
| Parties | James and Charlotte JENNINGS, Appellants, v. CITY OF DALLAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 44th Judicial District Court, Dallas County, Candice Tyson, J Eliot D. Shavin, SMUU Legal Clinic, Dallas, for Appellant.
Julie A. Essenburg, City of Dallas, Dallas, for Appellee.
Before WRIGHT, O'NEILL, and MALONEY1, JJ.
In this summary judgment case, Charlotte and James Jennings sued the City of Dallas (the City) alleging nuisance and a constitutional taking because the City's sanitary sewer line backed up and flooded their home with raw sewage. The City moved for summary judgment under Tex.R.Civ.P. 166a(i) () and Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (governmental immunity). The trial court granted the City's motion for summary judgment on the grounds that "[p]laintiff's nuisance and constitutional takings claims are barred by City of Tyler v. Likes, 962 S.W.2d 489 (Tex.1997)." The Jennings appeal, contending the trial court erred in (1) granting the City's motion for summary judgment and (2) denying their motion for partial summary judgment on nuisance per se. We reverse and remand.
On the morning of December 27, 1993, a crew sent by the City's wastewater collection division unstopped a grease-clogged sanitary sewer main. The grease and sewage rushed down the pipe and caused a second blockage. This caused the sewage to back up the sewage main and flood the interior of the Jennings's home. The flooding of the Jennings's home was a one-time event.
1. Standard of Review
The civil rules provide that, after adequate time for discovery, a party may move for summary judgment on all or part of a lawsuit if no evidence of one or more essential elements of a claim or defense exist on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). When a trial court's order specifies the ground relied on for the summary judgment ruling, we only affirm the summary judgment if the theory relied on by the trial court is meritorious, otherwise we must remand the case. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Macias v. Rylander, 995 S.W.2d 829, 833 (Tex.App. — Austin 1999, no writ); Farmer Enters., Inc. v. Gulf States Ins. Co., 940 S.W.2d 103, 106-07 (Tex.App. — Dallas 1996, no writ).
Because the trial court's summary judgment order specifically stated that it granted summary judgment on Likes, we need not address whether the "no evidence" standard for summary judgment applies.2 We limit our review to the ground the trial court relied on in granting summary judgment. See State Farm Fire & Cas. Co., 858 S.W.2d at 380; Macias, 995 S.W.2d at 833 n. 6; Farmer Enters., Inc., 940 S.W.2d at 106-07.
Our standards for reviewing a traditional summary judgment are well settled. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Tex.R.Civ.P. 166a. When plaintiffs move for summary judgment, they must conclusively prove all elements of their cause of action as a matter of law. Nationwide Prop. & Cas. Ins. v. McFarland, 887 S.W.2d 487, 490 (Tex.App. — Dallas 1994, writ denied). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Id. (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982)).
Once a movant establishes its right to summary judgment, the burden shifts to the nonmovant to present the trial court with evidence of any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App. — Dallas 1994, writ denied). Because sovereign immunity is an affirmative defense, a defendant alleging sovereign immunity in a summary judgment has the burden to establish all of the elements of the defense as a matter of law. See Battin v. Samaniego, 23 S.W.3d 183, 185-86 (Tex.App. — El Paso 2000, pet. denied); Shade v. City of Dallas, 819 S.W.2d 578, 581 (Tex.App. — Dallas 1991, no writ).
The Jenningses filed a motion for partial summary judgment contending they established a nuisance per se as a matter of law. The Jenningses relied on the Texas Health and Safety Code, which provides that "sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument of medium in disease transmission to a person or between persons..." is a public health nuisance. Tex.Health & Safety Code Ann. § 341.011 (Vernon 1992).
The Jenningses attached the affidavit of John M. Shaffer, a regional Director of Environmental & Consumer Health for the Texas Department of Health. Shaffer opined as follows:
"Based on my education, experience, and review of the deposition excerpts concerning this case, I have formed the opinion that the sewage, wastewater, and other organic wastes deposited or discharged into the Jennings home at 4250 Robertson Drive in Dallas, Texas on December 27, 1993, was a potential instrument or medium in disease transmission to the residents of that home."
Neither party disputes that sanitary sewage from the City's sewer main flooded the Jenningses' home. The Jenningses provided summary judgment evidence that the sewage was a public health nuisance because it was deposited, discharged, or exposed in such a way as to be a potential instrument of medium in disease transmission to a person or between persons. Accordingly, the burden shifted to the City to present evidence of issues precluding summary judgment. This, it did not do.
The City responded that the "sewage blockage" did not constitute a nuisance per se because it is not a nuisance at all times and under any and all circumstances, regardless of location. In its response, the City attached only the affidavit of Beverly J. Weaver, Director of Environmental & Health Services for Dallas. Her affidavit recited the following:
A sewer line blockage due to grease is not in and of itself a public health nuisance as that phrase is defined in § 341.011 of the Texas Health & Safety Code. Furthermore, a sewer line blockage due to grease is not in and of itself a potential instrument or medium in disease transmission to a person or between persons.
Whether the sewer line was blocked was never contested nor an issue in this case. The issue was whether the discharged sewage — not the blocked line — was a nuisance. Because the City produced no controverting evidence, the trial court should have granted the Jenningses' motion for partial summary judgment. City of Houston, 589 S.W.2d at 678; Muckelroy, 884 S.W.2d at 828.
We sustain the Jenningses' point of error number two.
Here, because the trial court's judgment specifically stated it relied on Likes in granting summary judgment, we need only decide if governmental immunity protected the City from liability.3 A municipality's operating and maintaining of a sanitary sewerage system is a governmental function. Tex.Civ.Prac. & Rem.Code Ann. § 101.0215 (Vernon 2001); Shade, 819 S.W.2d at 581. Municipalities are immune from tort liability in performing governmental functions unless the Texas Tort Claims Act waives their immunity. See Likes, 962 S.W.2d 489, 493. However, the Texas Constitution protects property owners from their property being damaged or destroyed without adequate compensation. Tex. Const. art I, § 17.
1. Nuisance
If the negligent performance of a governmental function causes a nuisance, governmental immunity protects that municipality. Shade, 819 S.W.2d at 581 (citing City of Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex.App. — Texarkana 1972, writ ref'd n.r.e.)). But, a municipality is liable for the creation or maintenance of a nuisance in the course of the non-negligent performance of a governmental function. Shade, 819 S.W.2d at 581 (citing Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565, 566 (1941)).
To be classified as a nuisance within the exception to governmental immunity, the condition must, in some way, constitute an unlawful invasion of property or the rights of others, beyond that arising merely from its negligent or improper use. Shade, 819 S.W.2d at 581 (citing Gotcher, 151 S.W.2d at 566, City of Uvalde v. Crow, 713 S.W.2d 154, 156 (Tex.App. — Texarkana 1986, writ ref'd n.r.e.)). The invasion of rights contemplated by the nuisance "must be inherent in the thing or condition itself, beyond that arising merely from its negligent or improper use." Shade, 819 S.W.2d at 581 (quoting Stein v. Highland Park Indep. Sch. Dist., 540 S.W.2d 551, 553 (Tex.Civ.App. — Texarkana 1976, writ ref'd n.r.e.)).
The Jennings's live pleading does not include a claim for negligence or nuisance caused by negligence. Specifically, The Jenningses alleged in their Third Amended Petition and Jury Demand that this nuisance created an unlawful invasion of their property that was inherent in the operation of the pipeline, without "respect to any negligence in its creation, operation, or maintenance." The City, however, contends the Jenningses have merely recast negligence claims under other theories to avoid governmental immunity. We disagree.
The City in moving for summary judgment was required to meet the plaintiffs' causes of action as pleaded and to demonstrate that the plaintiffs cannot prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976); Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 795 (Tex.App. — Beaumont 1988, writ denied). Accordingly, the City can only prevail on its motion for summary judgment if it meets the Jenningses'...
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