TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-02-00659-CV Sutton Building, Ltd., Appellant v. Travis County Water District 10, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. GN003152, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Appellant, Sutton Building, Ltd. (Sutton), sued appellee, Travis County Water District 10 (the District), for damage done to Sutton s parking lot by a leaking waterline owned and operated by the District. At trial, the court granted a directed verdict in favor of the District. Sutton presents two issues on appeal: whether Sutton produced legally sufficient evidence to support its inverse condemnation claim; and whether Sutton produced evidence that raised questions of fact on its nuisance claim. Because Sutton failed to produce sufficient evidence on both claims, we answer each question in the negative and will affirm the judgment of the district court.
BACKGROUND Sutton owns a commercial building and property on Bee Cave Road in Austin, Texas. The Sutton property is on Del Rio clay, which is considered highly expansive and reactive to water. Prior to reconstruction of the parking lot, pavement cracking, doors sticking, and structural movement in the Sutton building indicated soil movement. Sutton s experts attributed these anomalies to the shrinking and swelling movement of the clay soil, citing rainfall and landscape irrigation as significant sources of water that contributed to the movement. A waterline owned by the District runs beneath Sutton s property. It has been in use since about 1974 and is recorded in the deed records as a utility easement. In early 1999, Sutton contracted to reconstruct the parking lot located on the premises, directly over the waterline and utility easement. It is undisputed that no one involved in the parking lot reconstruction realized that there was a waterline running directly under the construction site. Construction began on August 6, 1999, and was substantially complete by October 1, 1999. Karen Burke, an employee of Sutton, testified that a tenant at the Sutton building called her on the morning of October 7, 1999, to report a massive leak. Burke went to the property, and while she was there, a City of Austin employee shut off the waterline, even though it was not the City s line. Sutton s experts estimated that the line had been leaking for four to five hours before the City shut it off. Burke left the property but returned later that morning to discover the water running again. Mr. Ortiz, an employee of ECO Resources, an agent of the District, had just turned the water back on. Burke told Ortiz that the running water would damage Sutton s new parking lot, but Ortiz replied that he had been instructed to restore the water to service a local middle 2
school during lunch. Burke left the property while the water was running. Sutton s witnesses did not establish how long the water remained on, but it appears that the time was about forty-five minutes to one hour. 1 The record indicates that a sudden and unexpected break in an air release valve caused the leak, and the District repaired the valve that afternoon. The record indicates that a bad gasket caused another leak on December 9, 1999. The record does not indicate how long the water ran on that occasion. There have been no leaks since. At trial, Sutton s experts testified that the October and December leaks caused immediate and ongoing damage to Sutton s new parking lot. They were, however, unable to quantify how much damage Ortiz caused in October by turning the water back on. Sutton originally filed suit against multiple parties, alleging a variety of claims. By the time of trial, the other defendants had been granted summary judgment, and only ECO Resources and the District remained. Sutton sought to recover against the District on theories of inverse condemnation and nuisance. 2 After a five-day jury trial, at the close of Sutton s case, ECO Resources was non-suited, and the trial court granted a directed verdict in favor of the District. This appeal followed. 1 Sutton did ask an expert to assume that the time was forty-five minutes, but the court sustained an objection to this question because the estimate was too speculative. 2 Because the District is a governmental entity entitled to immunity, Sutton could not recover on a negligence theory of liability. See City of Tyler v. Likes, 962 S.W.2d 489, 504-05 (Tex. 1997). 3
DISCUSSION Standard of Review When reviewing a directed verdict, the appellate court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). The court must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Id.; Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Collora, 574 S.W.2d at 68; Henderson, 544 S.W.2d at 650. Governmental Immunity Generally, units of government have immunity from suit and liability. Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). Municipal utility districts like the District are created under the authority of article XVI, section 59 of the Texas Constitution. Tex. Const. art. XVI, 59; Tex. Water Code Ann. 54.011 (West 2002); see Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 940 n.4 (Tex. 1993). Such districts can only perform governmental functions. Bennett v. Brown County Water Improvement Dist. No. 1, 272 S.W.2d 498, 500 (Tex. 1951). As a general rule, governmental immunity applies to such functions. Bennett v. Tarrant County Water & Improvement Dist. No. 1, 894 S.W.2d 441, 450 n.11 (Tex. App. Fort Worth 1995, writ denied). Accordingly, the District is immune from liability unless the legislature has waived its immunity by clear and unambiguous language. See id. at 451; see also City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). 4
A governmental entity is not liable for the negligent operation of its facilities. See Tarrant County v. English, 989 S.W.2d 368, 374 (Tex. App. Fort Worth 1998, pet. denied). However, claims under the Texas Constitution for inverse condemnation and nuisance are not barred by governmental immunity. See Tex. Const. art. I, 17. A party may not, however, establish a prima facie nuisance or inverse condemnation case by merely pleading negligent acts and labeling them a nuisance. See, e.g., Callaway v. City of Odessa, 602 S.W.2d 330, 333 (Tex. Civ. App. El Paso 1980, no writ); Steele v. City of El Paso, 417 S.W.2d 923, 924 (Tex. Civ. App. El Paso 1967, writ ref d n.r.e.). Therefore, to the extent that Sutton s claims are based on the District s negligent performance of its governmental functions, the District is immune from liability for property damage. See City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997) (city not liable for damage caused as result of its negligence). Inverse Condemnation In its first issue, Sutton claims that the trial court erred in granting the District s directed-verdict motion because Sutton produced legally sufficient evidence that the District s actions constituted a constitutional taking of its property. A constitutional taking occurs whenever property is intentionally taken, damaged, or destroyed. Tex. Const. art. I, 17. Article I, section seventeen of the Texas Constitution states: 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.... Id. Inverse condemnation occurs when property is taken, damaged, or destroyed for public use without process or without proper condemnation proceedings, and the property owner attempts to recover compensation. City of Abilene v. Burk Royalty Co., 470 S.W.2d 5
643, 646 (Tex. 1971). Under the Texas Constitution, a landowner may recover damages for inverse condemnation of his property even though there is no transfer of property rights. Steele v. City of Houston, 603 S.W.2d 786, 790 (Tex. 1980). Not every damaging of property, however, must be compensated. Id. The elements of an inverse condemnation claim are: (1) the governmental entity intentionally performed certain acts; (2) which resulted in a taking, damaging, or destroying of the property; (3) for public use. Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 689 (Tex. App. Tyler 1997, writ denied). Whether a damaging has occurred under inverse condemnation is a question of law. Dupuy v. City of Waco, 396 S.W.2d 103, 110 (Tex. 1965). In its motion for directed verdict, the District argued that Sutton had failed to produce evidence that (1) the District intentionally performed certain acts; (2) which resulted in a taking, damaging, or destroying of the property. Sutton responds that Ortiz intentionally turned the leaking waterline back on and the water from the line resulted in a damaging of Sutton s parking lot. The District rejoins that, while the actions of Ortiz were intentional in the sense that he intended to reactivate the waterline, for purposes of inverse condemnation under the Texas Constitution, more is required. The District argues that Ortiz s actions constitute nothing more than negligence; Sutton s burden in inverse condemnation requires a showing that Ortiz not only intended the act, but also intended a taking, damaging, or destroying of Sutton s property. Intentional vs. Negligent Acts In Texas Highway Department v. Weber, 219 S.W.2d 70, 70-71 (Tex. 1949), the Texas Supreme Court set the standard for intent determinations in inverse condemnation suits. 6
Weber, a landowner, sued the state for taking his property after a fire set by workers maintaining a highway near his property destroyed his hay crop. The court held that when private property is damaged or destroyed merely as the result of governmental employees negligence, it is not taken or damaged for public use. Id.; see also Likes, 962 S.W.2d at 505. Failing to use ordinary care will not make a governmental entity liable for inverse condemnation. Weber, 219 S.W.2d at 71. However, a governmental entity may be liable if the damage is necessarily incident to or necessarily a consequential result of an authorized, intentional act. Id.; see also City of Houston v. Renault, 431 S.W.2d 322, 326 (Tex. 1968) (city not liable for damage to cars caused by maintenance of nearby culvert because plaintiff did not show that city knew that flooding of the leased premises was resulting or was substantially certain to result from the maintenance of the road with the existing culvert ). In this case, there is no evidence that the District intentionally caused the two leaks at issue. The broken air release valve on October 7 and the bad gasket on December 9 were sudden and unexpected events and sound, at most, in negligence. The only possible intentional act occurred when Ortiz restored the water flow to service the local middle school during the lunch hour. Sutton s argument is, in essence, that the District becomes liable for inverse condemnation whenever it intentionally performs some act that, through negligence, results in some harm to property. We reject this argument. While his act of turning the water on might have been intentional, for Ortiz s actions to constitute an intentional taking under the Texas Constitution, Sutton is required to establish by probative evidence that Ortiz intended to damage or destroy Sutton s property. The 7
District is liable only if Ortiz intentionally damaged Sutton s parking lot or acted with the knowledge that the leak was substantially certain to damage the parking lot. See Renault, 431 S.W.2d at 326. The only evidence Sutton adduced on this issue was Burke s testimony that Ortiz would not turn the water off after she told him that it would damage the new parking lot. 3 Crossexamination revealed that Burke did not explain the soil s shrink/swell tendency or its effects on the parking lot and building. Without that knowledge, Ortiz could not be substantially certain that the leak would actually damage Sutton s property. Additionally, the record does not indicate that the parking lot was flooded at the time Ortiz acted, nor does it indicate that the prior four to five hours of water leakage had already visibly damaged the property. A total lack of apparent damage at the time Ortiz acted reinforces the fact that Ortiz could not possibly have been aware that his act was substantially certain to damage Sutton s lot. At most, Ortiz acted negligently by leaving the water on for a brief period of time, but any failure to use ordinary care does not make the District liable for inverse condemnation. Furthermore, Sutton failed to show how long the water ran after Ortiz turned it back on. Burke could not quantify the amount of time, and we find no other testimony regarding the matter. Therefore, Sutton could not quantify the amount of damage, if any, that Ortiz allegedly caused. 3 Burke testified: I told him that he could not turn the water back on, that he explicitly did not have our permission, that the water would damage our road, that literally just the week before we had completed road improvements of over $175,000, and it was paramount that the water be turned off. I was very agitated. 8
Viewed in the light most favorable to Sutton, Burke s testimony fails to create more than a mere scintilla of evidence that Ortiz intentionally damaged Sutton s property by turning the waterline back on. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). Moreover, Sutton produced no evidence to quantify the damage allegedly resulting from this act. Because Sutton failed to produce sufficient evidence, the trial court properly granted the directed verdict on the inverse condemnation claim. Nuisance A claim for nuisance is an alternative ground of recovery under article I, section seventeen of the Texas Constitution and is also an exception to governmental immunity. Tex. Const. art. I, 17; English, 989 S.W.2d at 374 (citing City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex. 1963)). A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Loyd v. ECO Res., Inc., 956 S.W.2d 110, 125 (Tex. App. Houston [14th Dist.] 1997, no pet.); Maranatha Temple, Inc. v. Enterprise Prods. Co., 893 S.W.2d 92, 98-99 (Tex. App. Houston [1st Dist.] 1994, writ denied). Governmental entities may be liable for nuisances created or maintained in the course of non-negligent performance of governmental functions. See English, 989 S.W.2d at 374. To maintain a cause of action for nuisance, a plaintiff must be able to show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from alleged improper or negligent use. See Loyd, 956 S.W.2d at 125. 9
In the instant case, Sutton appears to allege (a) that the District, in a non-negligent act, created a nuisance on October 7 when Ortiz turned the water back on; and (b) that the water running on October 7 set off a chain reaction of events that make the line itself an inherent nuisance. First, Sutton has failed to show that the District created or maintained a nuisance in the course of non-negligent performance of governmental functions. As explained above, Sutton did not produce evidence of an intentional act and has, at most, alleged that the District acted negligently. Sutton does not allege that the line itself is inherently subject to frequent breaks, nor does Sutton allege that the District has intentionally kept the line in bad repair. 4 Rather, Sutton argues that, by turning the water on, Ortiz intentionally performed an act that created a nuisance. Sutton s nuisance argument rests on a single event Ortiz turning the water on for a brief period of time on October 7. Texas case law requires more than one flooding incident of short duration to establish a nuisance. See Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex. App. Beaumont 1998, pet. denied) (holding summary judgment proper because damage arising from single flood does not constitute nuisance). Accordingly, we hold that Sutton has failed to produce sufficient evidence of a non-negligent creation of a nuisance. Because Sutton failed to produce sufficient evidence that the District, by a nonnegligent act, created an inherent nuisance, we overrule Sutton s argument that the district court erred by granting a directed verdict on its nuisance cause of action. 4 In contrast, the evidence shows that the District promptly repaired the leaks. 10
verdict for the District. CONCLUSION Having overruled Sutton s two issues on appeal, we affirm the district court s directed Mack Kidd, Justice Before Justices Kidd, B. A. Smith and Puryear Affirmed Filed: June 24, 2004 11