City of Brownsville, Texas v. Wesley Rattray, Marco Nunez, Martha Saavedra, Antonio Vindell, Carmen Pashos, Steve Tullos, Cesario Pedraza, Minerva Pedraza, Roger Luly, Nora Gonzalez, and Rosalinda Castillo ( 2020 )

NUMBER 13-19-00556-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CITY OF BROWNSVILLE, TEXAS, Appellant,
v.
WESLEY RATTRAY, MARCO NUNEZ,
MARTHA SAAVEDRA, ANTONIO VINDELL,
CARMEN PASHOS, STEVE TULLOS,
CESARIO PEDRAZA AND MINERVA PEDRAZA,
ROGER LULY, NORA GONZALEZ,
AND ROSALINDA CASTILLO, Appellees.
On appeal from the 107th District Court
of Cameron County, Texas.
DISSENTING MEMORANDUM OPINION
Before Justices Hinojosa, Perkes, and Tijerina
Dissenting Memorandum Opinion by Justice Hinojosa
I believe that the homeowners met their evidentiary burden to create a fact issue
concerning the application of the TTCA’s waiver of immunity. 1 Therefore, I would affirm
the trial court’s denial of the City’s plea to the jurisdiction. Because the majority holds
otherwise, I respectfully dissent.
I. STANDARD OF REVIEW
The majority correctly sets out the standard of review and applicable law. However,
I believe the majority fails to view the homeowners’ pleadings and evidentiary record in
the proper light. When a plea to the jurisdiction challenges the pleadings, we determine if
the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear
the cause, construing the pleadings liberally in favor of the plaintiffs. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In the face of an evidentiary
challenge, the plaintiff has the burden to present sufficient evidence to create a genuine
issue of material fact regarding the jurisdictional issue. See Town of Shady Shores v.
Swanson, 590 S.W.3d 544, 552 (Tex. 2019). Here, in determining whether the
homeowners have met their burden, we must view the evidence in the light most favorable
to the homeowners, indulging every reasonable inference in their favor and resolving any
doubts in their favor. See Miranda, 133 S.W.3d at 228.
II. TTCA WAIVER OF IMMUNITY
A. “Use” of Motor-Driven Equipment
As the majority acknowledges, the applicable waiver of immunity found in the
TTCA requires, in part, that the claimed damages stem from the “operation” or “use” of
motor-driven equipment. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The term
1 I will refer to the parties as they are designated in the majority opinion.
2
“operation,” as it is used in the TTCA, refers to “a doing or performing of a practical work.”
LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). “Use”
means “to put or bring into action or service; to employ for or apply to a given purpose.”
Id. The non-use of property cannot support a claim under the TTCA. Tex. Nat. Res.
Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001).
I agree with the majority that many of the homeowners’ contentions relate to the
non-use of motor-driven equipment, which do not invoke the TTCA’s waiver of immunity.
However, I believe that the homeowners’ complaint regarding the closing of the North
Laredo Gate and their evidence supporting that complaint sufficiently invoke the statutory
waiver. The homeowners alleged the following “use” of the gate in their live pleading:
Plaintiffs allege that the City of Brownsville and its employee, Jose
Figueroa, knew or should have known upon closing the “North Laredo Gate”
that any negative water flow at the “North Laredo Gate” was of a temporary
nature since there was positive water flow downstream at the “South Laredo
Gate”. Closing the “North Laredo Gate” did, in fact, cause excess
stormwater to accumulate in the Resaca de La Guerra and flood the
Plaintiffs homes.
In response to the City’s evidentiary challenge, the homeowners presented evidence that
the sluice gates, including the North Laredo Gate, are equipped with motor-driven
actuators that open and close the gates and that the gate could not have been opened
by its manual override wheel because it was not attached to the gate on the day of the
storm.
The majority acknowledges that the evidentiary record creates a fact issue
concerning the manner in which the gate was opened. However, the majority performs
two instances of sleight of hand to obscure this “use” claim: First, rather than viewing the
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evidence in the light most favorable to the homeowners and limiting its review to the live
pleadings, the majority quotes allegations from earlier pleadings while focusing solely on
evidence unfavorable to the homeowners. This allows the majority to conclude that “the
gravamen of [the homeowners’] complaint is based on the City’s nonuse of the North
Laredo Gate.”
Second, the majority lumps together the homeowners’ “use” allegation with a
laundry list of non-use complaints before ultimately concluding that the pleadings ”merely
identify the use of equipment during the rainstorm when the nature of the claim is based
on the City’s failure to relieve the overflow of water, not opening the gate, and the City’s
nonuse of various pumps or gates.” By conflating the non-use and use complaints, the
majority obscures the true nature of the homeowners’ allegations concerning the North
Laredo Gate.
I believe the homeowners’ allegation that the North Laredo Gate was closed by
use of its motor-driven actuator in response to the torrential rains on the day in question—
as opposed to being in the closed position at the inception of the storm—is a complaint
regarding the “use” of motor-driven equipment. This allegation is not an artful attempt to
recast a claim for which there is no waiver of immunity, as the majority concludes. See
City of North Richland Hills v. Friend, 370 S.W.3d 369, 373 (Tex. 2012). Rather, the
complaint clearly and directly identifies a “use” of motor-driven equipment. In reaching a
contrary conclusion, the majority fails to liberally construe the pleadings, while improperly
viewing the evidence in the light most favorable to the City. See Miranda, 133 S.W.3d at
226, 228.
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B. “Arises From”
The “arises from” standard requires a “nexus between the operation or use of the
motor-driven . . . equipment and a plaintiff’s injuries.” Ryder Integrated Logistics, Inc. v.
Fayette County, 453 S.W.3d 922, 927 (Tex. 2015). The operation or use of motor-driven
equipment “does not cause injury if it does no more than furnish the condition that makes
the injury possible.” Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968
S.W.2d 339, 343 (Tex. 1998). In determining whether such a nexus exists, we look to
several attenuation factors: “When an alleged cause is geographically, temporally, or
causally attenuated from the alleged effect, that attenuation will tend to show that the
alleged cause did no more than furnish the condition that made the effect possible.”
Ryder, 453 S.W.3d at 929–30 (quoting City of Dallas v. Hillis, 308 S.W.3d 526, 532 (Tex.
App.—Dallas 2010, pet. denied)). The required nexus is something more than actual
cause but less than proximate cause. Id. at 928–29.
With respect to the “arises from” element, the homeowners presented the following
evidence to establish that the flooding of their homes would not have occurred but for the
closing of the North Laredo Gate: (1) the presence of positive water flow downstream
from the gate during the relevant time period indicating that negative water flow near the
subdivision was temporary in nature; (2) the fact that water in the Resaca near the
subdivision drains downstream through the opened gate; (3) the statement of the City’s
Public Works Director that stormwater accumulating near the subdivision would have no
place to go while the gate was closed; and (4) expert opinion testimony that closing the
gate “caused the accumulation of water” near the subdivision. Viewing this evidence in
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the light most favorable to the homeowners, I would conclude that there exists a fact issue
as to whether the flooding of the homeowners’ property arose from the closing of the
North Laredo Gate. See id. at 929.
In reaching a contrary conclusion, the majority creates a new causation standard
from whole cloth: “Simply put, the mere act of closing a gate does not cause flooding—if
no rainstorm had occurred on August 31, 2015, and the City closed the North Laredo
Gate, the homeowners would not have suffered property damage.” This statement
elevates the homeowners’ causation burden from “something more than actual cause but
less than proximate cause” to sole factor causation. See id. However, “[i]t has long been
the law in this state that a defendant’s act or omission need not be the sole cause of an
injury, as long as it is a substantial factor in bringing about the injury.” Bustamante v.
Ponte, 529 S.W.3d 447, 457 (Tex. 2017). Further, “there may be more than one proximate
cause of an injury.” Id. The causation requirement in § 101.021(2) is less than proximate
cause—"not a heightened standard such as sole cause.” Wise Reg’l Health Sys. v.
Brittain, 268 S.W.3d 799, 808 (Tex. App.—Fort Worth 2008, no pet.).
With this improper causation standard in hand, the majority asserts: “it is
undisputed that the gate itself did not cause the injury as plaintiffs allege that the gate
caused the accumulation of water.” Under this calculus, it is difficult to envision any
circumstance under which water diverted by the use of motor-driven equipment would
invoke a waiver of immunity under the TTCA—if not for the presence of water, no property
would ever suffer water damage. However, I am unaware of any Texas authority
supporting such a narrow construction of the nexus requirement. The majority states that
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it must reach this result based on a strict construction of § 101.021’s “arises from”
requirement. However, the Texas Supreme Court has already construed this provision
for us, providing clear guidance as to the meaning of the nexus requirement. It is our role
as an intermediate court to apply the statute as construed by the supreme court—not to
rewrite the causation standard as we see fit.
In applying the nexus requirement as articulated by the higher court, Texas
intermediate appellate courts have acknowledged that water damage resulting from the
use of motor driven equipment can invoke the TTCA’s waiver of immunity. For instance,
in Galveston Racquet Club, Inc. v. City of Galveston, the court reviewed whether the
plaintiff’s pleadings demonstrated a nexus between the operation or use of a water pump
and the alleged damage to the plaintiff’s property caused by water leaking through broken
pipes. 178 S.W.3d 167, 171 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The court did
not reject outright that the use of water pumps could provide the required nexus. Rather,
the court observed that the water damage was allegedly caused by the condition created
by the water pump—the pressurized, substantial water flow into “deteriorated,”
“unmaintained,” and “worn out” water lines—rather than the actual use or operation of the
water pump. Id. As it pertains to this case, it is notable that the Galveston court did not
employ the majority’s reasoning—that if there was no water in the pipes, the plaintiff would
not have suffered water damage. See id.; see also Running v. City of Athens, No. 12-18-
00047-CV, 2019 WL 625972, at *4 (Tex. App.—Tyler Feb. 14, 2019, no pet.) (mem. op.)
(concluding there was no nexus in water damage case because “[t]he defective non-
motorized mechanical valve was the actual cause of any overflow, not the motor-driven
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high service pumps, which is insufficient to establish a waiver under the TTCA”).
San Antonio Water System v. Overby provides further illustration of when the use
of motor-driven equipment merely furnishes the condition that made the effect possible.
429 S.W.3d 716, 722 (Tex. App.—San Antonio 2014, no pet.). In that case, the plaintiffs
produced evidence that the governmental entity used motor-driven equipment to maintain
an alley and that the alley collected rainwater which sometimes flooded the plaintiffs’ yard
with rainwater and sewage. Id. The court concluded that this evidence conclusively
proved that it was not the governmental entity’s use of the equipment that damaged the
plaintiffs’ property. Id. Rather, it was the condition of the alley that led to the damage, and
a use of motor-driven equipment that results in a condition that causes an injury is not a
sufficient nexus to invoke the statutory waiver of immunity. Id.
In contrast to Galveston Racquet Club and Overby, the evidentiary record in this
case does not establish that the closing of the North Laredo Gate created a separate
condition that led to the flooding of the homeowners’ property. Rather, viewing the
evidentiary record in the proper light, it was the very act of closing the North Laredo Gate
that caused such flooding. There exists no geographic, temporal, or causal attenuation
between the closing of the gate and the flooding of the subdivision that would support a
contrary conclusion. See Ryder, 453 S.W.3d at 929–30; cf. Dorbandt v. Cameron Cty.,
No. 13-11-00337-CV, 2012 WL 1390576, at *4 (Tex. App.—Corpus Christi–Edinburg Apr.
19, 2012, no pet.) (mem. op.) (holding that the plaintiffs failed to show a causal nexus
between the County’s alleged act of negligently using motor-driven equipment and their
purported injuries, where the County’s motor-driven equipment was removed from the
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area two years before any flooding occurred, and the equipment was not present during
any of the heavy rainfall events in 2007 and 2008).
Finally, I take issue with the majority’s conclusion that the homeowners’ bare
allegations relating to the causal nexus are insufficient to survive a plea to the jurisdiction.
This conclusion ignores the uncontroverted and unchallenged expert opinion testimony
presented by the homeowners. An allegation supported by evidence is not a bare
allegation, and the City has not provided any argument to this Court to justify ignoring this
evidence. 2
III. CONCLUSION
The homeowners allege that their properties suffered water damage due to the
City’s decision to close the North Laredo Gate by use of its motor-driven actuator in
response to torrential rains. When met with an evidentiary challenge, the homeowners
presented evidence creating a fact issue regarding this claim. “At this stage of the
proceedings, no more is required” to survive a jurisdictional challenge. PHI, Inc. v. Tex.
Juvenile Justice Dep’t, 593 S.W.3d 296, 303 (Tex. 2019). In reversing the trial court’s
denial of the City’s plea to the jurisdiction, the majority fails to liberally construe the
homeowners’ allegations and ignores evidence favorable to those allegations. In so
doing, the majority deprives the homeowners of their right to have disputed facts resolved
by a jury. For the foregoing reasons, I respectfully dissent.
2 For instance, the City does not argue on appeal that the expert’s opinion testimony constitutes
no-evidence because it is bare or baseless. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.
2009) (“Bare, baseless opinions will not support a judgment even if there is no objection to their admission
in evidence.”).
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LETICIA HINOJOSA
Justice
Delivered and filed the
15th day of October, 2020.
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