San Jacinto River Authority v. Elizabeth Bolt ( 2019 )

Opinion issued June 13, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00823-CV
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SAN JACINTO RIVER AUTHORITY, Appellant
V.
ELIZABETH BOLT, STEPHEN BOLT, EDWARD AVELLA, MICHELLE
AVELLA, JAMES BEECH, SUSAN BEECH, JAMES P. CLARK, ROBERT
FRYE, MELANIE FRYE, JOHN HAMBRICK, SHARON HAMBRICK,
JAMES HOLEKAMP, TAMMY HOLEKAMP, TRACY JANIK, KRIS
JANIK, SCOTT JENSEN, KAMELA JENSEN, LARRY KEESE, JANET
KEESE, DAVID KELLEY, LEIGH MARCUS-KELLEY, ROBERT C.
NORRIS, CAROLANNE NORRIS, BENNETT J. REAVES, ASHLEY
REAVES, CAROLINE SANTIAGO, JAMES SANTIAGO, ADAM
SHAFFER, YVETTE SHAFFER, LARRY SHRYOCK, JANET SHRYOCK,
NAOMI STAIR, MICHAEL STAMPS, PAMELA STAMPS, RAUL SUAZO,
SHELLEY SUAZO, ROBERT SWIFT, SANDRA SWIFT, JAMES TOWNE,
SUSAN TOWNE, BRADFORD WITMER, SUSAN WITMER, JOHN
WOOD, AMANDA WOOD, BERNIE WUTHRICH, JANET WUTHRICH,
JEFF ARTHUR, AND JENNIFER ARTHUR, Appellees
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1113458
MEMORANDUM OPINION
In this interlocutory appeal, appellant San Jacinto River Authority, the
defendant below, asserts that the trial court erred in denying its Rule 91a motion to
dismiss. The River Authority’s Rule 91a dismissal motion contended that because
the plaintiffs’ inverse-condemnation (takings) claims have no basis in fact or law,
the River Authority’s governmental (sovereign) immunity is not waived and the
plaintiffs’ claims should be dismissed for lack of subject-matter jurisdiction.
In San Jacinto River Authority v. Burney, 570 S.W.3d 820 (Tex. App.—
Houston [1st Dist.] 2018, no pet. h.), an opinion delivered six months ago, this
court addressed three appeals in which the River Authority raised and argued the
same issues that it is raising in this appeal. For the reasons expressed in Burney, we
affirm.
Background
During Hurricane Harvey in late August and early September of 2017, the
San Jacinto River Authority released water from Lake Conroe into the West Fork
of the San Jacinto River. The forty-eight plaintiffs are owners of homes that
flooded in Kingwood, Texas. The homeowners have sued the River Authority in
the civil county court at law of Harris County, seeking compensation for their
inverse-condemnation claims. The homeowners allege that during Hurricane
Harvey, the River Authority released rising water from Lake Conroe into the West
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Fork of the San Jacinto River, and that the released water caused or exacerbated
the downstream flooding of their homes in Kingwood. They allege two causes of
action against the River Authority: inverse condemnation of their real and personal
property; and inverse condemnation by an “inundation, flood, flowage or drainage
easement” over their property.
There are two differences between this case and the three cases in Burney.
The three cases in Burney were filed in Harris County district court, and in each of
those cases the homeowner plaintiffs asserted an additional statutory takings claim
under Government Code section 2007.021. See Burney, 570 S.W.3d at 824–29
(holding that Harris County’s county civil courts at law have exclusive jurisdiction
over inverse-condemnation claims and that a statutory takings claim must be
brought in district court). Except for these two differences, the factual allegations
and the two inverse-condemnation claims in this case and in the three cases in
Burney are practically identical.
Analysis
In this appeal, the River Authority asserts that the trial court erred in denying
its Rule 91a motion to dismiss because the homeowners did not plead sufficient
facts to establish a waiver of the River Authority’s immunity. We review de novo
the trial court’s ruling. See id. at 830.
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The River Authority asserts six reasons why the homeowners’ pleading is
insufficient. The River Authority’s first two reasons assert that the homeowners’
flooding did not constitute a taking because their properties were affected by a
confluence of water and because the peak inflow into Lake Conroe exceeded its
peak outflow. In Burney we rejected these two arguments, and we reject them here
for the same reasons, including because of their attempted reliance on evidence.
See id. at 835–36; see also id. at 830–31 (rejecting River Authority’s request to
consider evidence with Rule 91a dismissal motion, including under the guise of
judicial notice).
The River Authority additionally argues that the homeowners’ flooding did
not constitute a taking because the water was released from Lake Conroe directly
into the West Fork of the San Jacinto River and not directly into their respective
properties. Burney addressed and rejected this argument, noting contrary authority
from the Texas Supreme Court and the United States Supreme Court. See id. at
835–36 & n.67 (citing Tarrant Regional Water Distr. v. Gragg, 151 S.W.3d 546,
550, 554–55 (Tex. 2004) (affirming takings judgment despite evidence that water
district released lake water directly into river during heavy rains and water traveled
about eight miles downstream before causing flood damage); and Ark. Game &
Fish Comm’n v. United States, 568 U.S. 23, 27–28 (2012) (holding that property
owner 115 miles downstream from dam could maintain federal takings claim)).
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The River Authority’s next two arguments are that the homeowners’
pleading does not sufficiently plead intent or that the flooding was for a public
purpose. Again, Burney thoroughly addressed and rejected these identical
arguments, and we do as well based on the reasoning in Burney. See id. at 833–35,
837–38.
Finally, we reject the River Authority’s last argument—that the
homeowners’ inverse-condemnation claim for an “inundation, flood, flowage or
drainage easement” over their property is not sufficiently pleaded factually or
legally—which was addressed in Burney: “The same allegations also sufficiently
support the homeowners’ constitutional takings claims for an ‘inundation, flood,
flowage or drainage easement over their property,’ or a partial taking.” Id. at 838 &
n.79 (citing Hubler v. City of Corpus Christi, 564 S.W.2d 816, 821 (Tex. Civ.
App.—Corpus Christi 1978, writ ref’d n.r.e.)).
Conclusion
For the above reasons, we overrule the River Authority’s issues and affirm
the trial court’s denial of the River Authority’s Rule 91a motion to dismiss.
Richard Hightower
Justice
Panel consists of Justices Higley, Hightower, and Countiss.
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