Maverick County Water and Improvement District No. 1 v. Anita Reyes, et al.--Appeal from 293rd Judicial District Court of Dimmit County

MEMORANDUM OPINION
No. 04-03-00421-CV
MAVERICK COUNTY WATER AND IMPROVEMENT DISTRICT NO. 1,
Appellant
v.

Anita REYES, Ascencion Cisneros, Paulino Garcia, Alcaria Trevino, Gloria Hernandez,

Maria Hernandez, Santos Estrada, Maria R. Estrada, Domingo Crispin, Adela G. Crispin,

Tony Reyes, Jr., Jovita Reyes, Armando Fuentes, Maria Estela Fuentes, Arturo Talamantes, Herminia Talamantes, James Turk, and Delores Turk,

Appellees
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 02-04-18210-MCV
Honorable Rey Perez, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 10, 2003

REVERSED AND RENDERED

Appellee Anita Reyes (1) sued the Maverick County Water Control and Improvement District ("the District") for breach of contract, promissory estoppel, inverse condemnation, and nuisance. In response, the District filed a plea to the jurisdiction, alleging sovereign immunity. The trial court denied the plea. The District brings an interlocutory appeal, arguing that the trial court erred in denying its plea to the jurisdiction. (2)

We reverse the trial court's order denying the District's plea to the jurisdiction and render judgment dismissing the cause for lack of subject-matter jurisdiction.

Background

In April 2000, the District's manager increased water flow through one of its canals to make more water available for irrigation and electricity. On April 8, 2000, the canal broke, releasing water that inundated Reyes's property. Three days after the flooding incident, the District held a board meeting and invited Reyes. At the meeting, the board president allegedly admitted liability and promised to pay for all damages. On May 8, 2000, Reyes received a letter from the District's claim service saying her claim was being denied. Reyes subsequently brought suit against the District for breach of contract, promissory estoppel, inverse condemnation, and nuisance.

The District filed a traditional motion for summary judgment, a no-evidence motion for summary judgment, and a plea to the jurisdiction, alleging sovereign immunity. The trial court denied its no-evidence motion for summary judgment and its plea to the jurisdiction. The District argues that the trial court erred in denying its plea to the jurisdiction because the trial court does not have subject-matter jurisdiction over Reyes's claims.

A plea to the jurisdiction is a dilatory plea intended to defeat a cause of action without regard to the merits of the asserted claims. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review a trial court's ruling on a plea to the jurisdiction de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

Breach of Contract

Reyes argues that when the District's president of the board promised Reyes that the District would pay for all her damages, an oral contract was formed. However, we need not decide whether such promise created a binding contract, because even if an oral contract was formed, Reyes failed to plead and prove a waiver of sovereign immunity.

In Texas, a governmental unit is immune from suit and liability unless the state consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Governmental immunity from suit defeats a court's subject-matter jurisdiction. Id. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Id. To determine whether the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issues, the evidence submitted by the parties. Id.

Whether a governmental unit is immune from liability for a particular claim depends entirely on statute. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Here, Reyes failed to allege a statute providing that the District is not immune from suit. Furthermore, the Texas Water Code provides: "A suit for contract damages may be brought against a district only on a written contract of the district approved by the district's board." Tex. Water Code Ann. 49.066(a) (Vernon 2000). Here, Reyes fails to allege that a written contract existed. Accordingly, the District remains immune from suit.

Promissory Estoppel

Reyes argues that the District is liable under a theory of promissory estoppel because the District's board president promised to pay for all damages and then reneged on his promise. On appeal, the District asserts that 1) as a governmental unit, it is not subject to estoppel; and 2) even if it were, there is no evidence of the facts necessary to support estoppel.

As a general rule, the doctrine of promissory estoppel does not apply against a governmental unit exercising its public or governmental functions. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970). Courts recognize an exception, however, where no governmental function is impaired and an estoppel is necessary to prevent injustice. Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex. 1976); Dallas County Flood Control Dist. No. 1 v. Cross, 815 S.W.2d 271, 284 (Tex. App.--Dallas 1991, writ denied); Clear Lake City Water Auth. v. Winograd, 695 S.W.2d 632, 640 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Here, the District's governmental function includes the control, storage, preservation, and distribution of its water and floodwater and the water of its rivers and streams for irrigation, power, and all other useful purposes. Tex. Water Code Ann. 51.121(b)(1) (Vernon 2000). This lawsuit arises from a dispute over the District's distribution of its water for irrigation and electricity purposes. Accordingly, the application of promissory estoppel against the District would impair the exercise of its governmental function.

Because the application of promissory estoppel would impair the exercise of its governmental function, the District remains immune from suit.

Inverse Condemnation

Reyes argues that the flooding of her property amounted to a physical taking of her property. Article I, Section 17 of the Texas Constitution provides, in pertinent part, that no "person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made . . . ." Tex. Const. art. I, 17.

The State does not have sovereign immunity from a valid inverse condemnation claim. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (holding governmental immunity did not shield city from claim under article I, section 17 of the Texas Constitution); State v. Biggar, 848 S.W.2d 291, 294-95 (Tex. App.--Austin 1993) (same), aff'd, 873 S.W.2d 11 (Tex. 1994). When, however, a plaintiff does not allege a valid inverse condemnation claim, sovereign immunity does apply, and a court should grant the plea to the jurisdiction. See, e.g., TRST Corpus, Inc. v. Fin. Ctr., Inc., 9 S.W.3d 316, 323 (Tex. App.--Houston [14th Dist.] 1999, pet. denied) (holding sovereign immunity barred "taking" cause of action when plaintiff failed to allege State intentionally performed acts resulting in taking; reversing trial court's order denying plea to jurisdiction); Green Int'l, Inc., v. State, 877 S.W.2d 428, 434-35 (Tex. App.--Austin 1994, writ dism'd) (upholding grant of plea to the jurisdiction when facts alleged by plaintiff showed State had no intent to take property in question for use under its power of eminent domain).

To recover under Article I, Section 17 of the Texas Constitution, a claimant must establish that the governmental entity intentionally performed certain acts that resulted in a taking of the property for public use. State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736; Bennett v. Tarrant County Water Control & Improvement Dist. No. 1, 894 S.W.2d 441, 448 (Tex. App.--Fort Worth 1995, writ denied). Negligence that merely contributes to the damage or destruction of property does not constitute a taking. City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997). However, the State may be liable if the damage is necessarily incident to or necessarily a consequential result of an authorized, intentional act. Kerr v. Tex. Dep't of Transp., 45 S.W.3d 248, 252 (Tex. App.--Houston [1st Dist.] 2001, no pet.); see also City of Houston v. Renault, Inc., 431 S.W.2d 322, 326 (Tex. 1968) (holding that 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").

Here, the flood damage was not necessarily a result of or substantially certain to result from the District's releasing more water into the canal. Accordingly, the facts as pled by Reyes do not constitute a valid inverse condemnation claim. The District, therefore, remains immune from suit.

Nuisance

Reyes argues that the flooding of her property constituted a compensable nuisance.

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. Enter. Prods. Co., 893 S.W.2d 92, 98-99 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Here, the basis of the underlying lawsuit is directed to one single event occurring on one occasion. Wickham v. San Jacinto River Auth., 979 S.W.2d 876, 880 (Tex. App.--Beaumont 1998, pet. denied). We find no Texas cases specifically holding that a single, temporary event can support a claim for nuisance. Id.

Additionally, in order to fall within the waiver of immunity provided by article I, section 17 of the Texas Constitution, a nuisance claim must be based on non-negligent acts. Likes, 962 S.W.2d at 503-04; City of Abilene v. Downs, 367 S.W.2d 153, 160 (Tex. 1963). "[N]on-negligence means beyond negligence, as in gross negligence or an intentional act." Tarrant County v. English, 989 S.W.2d 368, 374 (Tex. App.--Fort Worth 1998, pet. denied) (internal quotations omitted). A nuisance claim cannot be made merely by pleading negligent acts and labeling them a nuisance. Id. at 375. 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. Loyd, 956 S.W.2d at 125; Schneider v. City of Cuero, 749 S.W.2d 614, 617 (Tex. App.--Corpus Christi 1988, writ denied). Here, Reyes does not allege that there is anything inherent in the canal that renders it a nuisance separate and apart from the alleged negligent act of an employee of the District.

Because the facts as pled by Reyes do not constitute a valid nuisance claim, the District is immune from suit.

Conclusion

Because the District is immune from breach of contract, promissory estoppel, inverse condemnation, and nuisance, the trial court erred in denying the District's plea to the jurisdiction. Accordingly, we reverse the trial court's order denying the District's plea to the jurisdiction and render judgment dismissing the cause for lack of subject-matter jurisdiction.

Karen Angelini, Justice

1. As appellees have filed one brief on the merits, we will refer to them collectively as "Reyes."

2. The Civil Practices and Remedies Code provides that we have jurisdiction to hear an interlocutory appeal of an order denying a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(8) (Vernon Supp. 2003).