City of Del Rio, Texas v. Dwayne Felton and Gracie Felton--Appeal from 63rd Judicial District Court of Val Verde County

MEMORANDUM OPINION

No. 04-06-00091-CV

THE CITY OF DEL RIO, TEXAS,

Appellant

v.

DWAYNE FELTON AND GRACIE FELTON,

Appellee

From the 63rd Judicial District Court, Val Verde County, Texas

Trial Court No. 25554

Honorable James M. Simmonds, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 31, 2007

REVERSED AND RENDERED

This is an interlocutory appeal of the trial court's denial of the City of Del Rio's ("the City") plea to the jurisdiction filed pursuant to 51.014 (a)(8) of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 51.014 (a) (8) (Vernon Supp. 2006). We reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing the cause for lack of subject-matter jurisdiction.

Factual and Procedural Background

Dwayne and Gracie Felton ("the Feltons") own property in Del Rio, Texas on which stood an adobe structure built in the early 1900's. In October of 2004, a portion of the building collapsed. The Feltons initially sued the City pursuant to the Texas Tort Claims Act ("TTCA"), claiming that the City was liable "for damages to real property and improvements arising from the [City's] governmental functions." In particular, the Feltons claimed that the City improperly and/or negligently watered the adjoining park, allegedly resulting in the super saturating of the earth and thereby, leading to the deterioration of the Feltons' building. In response, the City filed its plea to the jurisdiction, contending that the trial court lacked subject-matter jurisdiction because the Feltons failed to allege, as required by the TTCA, that the damage to their property arose from "the operation or use of a motor-driven vehicle or motor-driven equipment." Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 2005). In response, the Feltons amended their petition, alleging that their suit was brought "under common law and the Texas Constitution." More specifically, the Feltons sued for damages arising from the City's "proprietary functions," an unconstitutional taking of property without compensation by inverse condemnation, and a nuisance created or maintained by the City. (1) The City then filed its amended plea to the jurisdiction which the trial court denied.

The City appeals, raising the following issues: the City's activities in maintaining and irrigating parks is a governmental function rather than a proprietary one; drainage design is a discretionary act entitling the City to immunity; the pleadings do not support a claim for premises defect, unlawful taking or nuisance; and the Feltons are not entitled to recover exemplary damages or damages for mental anguish.

Plea to the Jurisdiction

In order to properly adjudicate the subject matter of a cause of action, a trial court must have subject-matter jurisdiction. Miranda, 133 S.W.3d at 225-28. The burden is on the plaintiff to plead sufficient facts affirmatively establishing subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Whether a plaintiff has alleged sufficient facts to demonstrate subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 225-26. Thus, we review the trial court's granting or denying of the plea to the jurisdiction de novo. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex. 2005); Miranda, 133 S.W.3d at 228.

In determining whether jurisdiction exists, "[w]e construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent." Miranda, 133 S.W.3d at 226. "However, if a pleato the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised . . . ." Id. at 227. "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Id. at 227-28. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Id. at 228. Thus, "[w]hen reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant." Id. "We indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id.

Sovereign Immunity and the Texas Tort Claims Act

The doctrine of sovereign immunity provides that state entities, including cities, cannot be sued absent a waiver of sovereign immunity. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curium); Fed. Sign. v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Sovereign or governmental immunity encompasses immunity from suit, which bars a suit unless the state has consented, and immunity from liability, which protects the state from judgments even if it has consented to the suit. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).Immunity from suit deprives a trial court of subject-matter jurisdiction. Id.

However, sovereign immunity only applies to a city's governmental functions, which have been defined as functions "in the performance of purely governmental matters solely for the public benefit." Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006) (quoting Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992, 993 (1949)). Thus, if a city is engaged in a proprietary function, the common law defense is inapplicable and the city is liable to the same extent as a private entity or individual. Dilley, 148 Tex. at 193, 222 S.W.2d at 993; see also Tooke, 197 S.W.3d at 343 ("A municipality is not immune from suit for torts committed in the performance of its proprietary functions, as it is for torts committed in the performance of its governmental functions."). Under common law, "generally speaking, a municipality's proprietary functions are those conducted 'in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government.'" Tooke, 197 S.W.3d at 343 (quoting Dilley, 148 Tex. at 193, 222 S.W.2d at 993). Nevertheless, a court need not consider classification of an activity under common law if the activity is defined by statute. As the Texas Supreme Court has recently explained, the "Texas Constitution authorizes the Legislature to 'define for all purposes those functions of a municipality that are to be considered governmental and those that are proprietary, including reclassifying a function's classification assigned under prior statute or common law.'" Id. (quoting Tex. Const. art. XI, 13). Therefore, a municipality engaged in a function defined by the Legislature to be governmental is entitled to sovereign immunity provided, however, that the Texas Legislature has not otherwise authorized a waiver of this immunity. See City of Houston v. Clear Channel Outdoor, Inc., 161 S.W.3d 3, 6 (Tex. App.--Houston [14th Dist.] 2004), rev'd on other grounds, 197 S.W.3d 386 (Tex. 2006). One such legislative waiver of immunity arises pursuant to the TTCA which waives a municipality's sovereign immunity from liability for "damages arising from its governmental functions" in the following three areas: use of motor-driven vehicles or other motor-driven equipment; personal injuries arising out of conditions or uses of property; and premises defects. Tex. Civ. Prac. & Rem. Code Ann. 101.001-.109 (Vernon 2005 & Supp. 2006). Section 101.021 of the Act sets out the requirements necessary to establish this waiver and specifically provides that:

[a] governmental unit in the state is liable for the following:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann 101.021 (Vernon 2005). In the case of a premises liability claim, to establish a waiver of immunity a plaintiff must comply with both 101.021 and 101.022(a), which specifically set out the duty owed in a claim arising from a premises defect. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (2), 101.022 (a); see e.g., State v. Tennison, 509 S.W.2d 560, 561 (Tex. 1974) (holding that legislative intent was to limit the State's immunity in tort claims arising from premises defects by imposing the same duty upon the State as that owed by private persons to a licensee on private property and as such, a plaintiff could not pursue a claim for premises liability solely under Article 6252-19, Section 3, the precursor to what is now known as 101.021); Hawley v. State Dept. of Highway & Pub. Transp., 830 S.W.2d 278, 280-81 (Tex. App.--Amarillo 1992, no writ) (reaffirming that 101.022 is a limitation upon the general liability created by 101.021 rather than an additional cause of action measured by an ordinary standard of care).

Finally, even if immunity from liability has initially been waived, exceptions to the waiver of immunity from liability may exist so as to ultimately preserve sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. 101.051-.066 (Vernon 2005). One such exception is found at 101.056 which states:

This chapter does not apply to a claim based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Id. 101.056. Thus, to establish subject-matter jurisdiction pursuant to the TTCA, a plaintiff must not only allege sufficient facts to establish a waiver of immunity under 101.021, but also avoid alleging facts that would support an exception to the waiver pursuant to 101.051 through 101.066.See e.g., City of San Augustine v. Parrish, 10 S.W.3d 734, 739-40 (Tex. App.--Tyler 1999, pet. dism'd) (providing that the TTCA does not waive immunity on a claim that a governmental entity failed to perform an act that it is not required by law to perform, or for a failure to act if the performance or non-performance is left to the discretion of the governmental entity); Reyes v. City of Houston, 4 S.W.3d 459, 461-62 (Tex. App.--Houston [1st Dist.] 1999, pet. denied) (reaffirming that a city generally has immunity for its discretionary acts).

Discussion

I. The Feltons' Claims Regarding Proprietary Functions and Premises Defect

The Feltons cite to City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985) in support of their position that maintenance activities of parks and drainage systems undertaken at the operational level are proprietary functions subject to liability rather than governmental functions immune from liability. However, we find the Feltons' reliance misplaced in light of the fact that City of Round Rockwas decided in 1985, two years before the TTCA was amended to reclassify the operation and maintenance of sanitary and storm sewers, waterworks, and water and sewer service as governmental functions for which a municipality may be liable. See Act of Sept. 1, 1985, 69th Leg., ch. 959, 1, 1985 Tex. Gen. Laws 3302 (amended 1987) (current version found at Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (9), (11), (32) (Vernon 2005)); City of Round Rock, 687 S.W.2d 300; see also City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997) (affirming that since the 1987 amendment to 101.0215(a)(9), a municipality's activities with respect to the operation and maintenance of storm sewers have been considered governmental functions). Also amended was the common law classification of the establishment and maintenance of public parks, which was formerly held to be a proprietary function at common law, but is now classified as a governmental function. Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (13); see Mitchell v. City of Dallas, 855 S.W.2d 741, 744 (Tex. App.--Dallas 1993)(declining to adopt a restrictive interpretation of 101.0215 and instead, reaffirming that the re-classification of parks as a governmental function involves all actions taken by a city regarding public parks), aff'd, 870 S.W.2d 21 (Tex. 1994).

Thus, in broadly setting forth the functions of storm sewers, waterworks, parks, and water and sewage service within its statutory list of governmental functions for which a municipality could be liable pursuant to the TTCA, the Legislature intended to afford some measure of protection to municipalities in these areas. Compare Tex. Civ. Prac. & Rem. Code Ann. 101.0215(a) (setting forth a noninclusive list of governmental functions for which a municipality is liable pursuant to the Texas Tort Claims Act and thereby protected by the limits of liability set forth in 101.022) withTex. Civ. Prac. & Rem. Code Ann. 101.0215 (b),(c) (providing that while the proprietary functions of a municipality do not fall within the scope of the TTCA, the "proprietary functions of a municipality do not include those governmental activities listed under Subsection (a)") (emphasis added). Notwithstanding the Feltons' claim of improper drainage (2) of excess surface water caused by the City's over watering, without regard to need or rainfall, the City's activities with respect to the operation and maintenance of storm sewers are governmental functions pursuant to 101.0215(a)(9) (sanitary and storm sewers), (11) (waterworks), and (32) (water and sewer service), and fall within the purview of the TTCA. See id. 101.0215(a) (9), (11), (32); see also Likes, 962 S.W.2d at 502 (holding that after the 1987 amendment to the TTCA, the failure to maintain culverts clear of debris that might interfere with the flow of water amounted to a negligent maintenance claim for which the city had immunity since the operation and maintenance of storm sewers is now a governmental function). Similarly, the operation of a park would necessarily include maintaining and irrigating the landscape; therefore, the Feltons' claim that the City over watered the park, causing excess runoff to damage their property, likewise falls within the purview of the TTCA.(3) See 101.0215 (a) (13); see also Mitchell, 855 S.W.2d at 744.

While operating and maintaining a park and drainage system are governmental functions for which a governmental entity would normally be entitled to sovereign immunity, 101.0215 (a) provides that a municipality is liable under the TTCA for damages arising from these functions provided the plaintiff has pled sufficient facts to demonstrate the City has waived immunity. 101.0215 (a). In the present case, since the Feltons' suit is for property damage alone, they were required to allege that the property damage arose from the operation or use of a motor-driven vehicle or motor-driven equipment. See id. 101.0215; see also Likes, 962 S.W.2d at 494 (holding that because flood damage to plaintiff's home did not arise from the operation or use of a motor-driven vehicle or motor-driven equipment, plaintiff could not avail herself of the Act's waiver of immunity for property damage). The Feltons failed to do so and therefore, the City is entitled to immunity from suit on this claim. See City of El Paso v. Gomez-Parra, 198 S.W.3d 364, 368 (Tex. App.--El Paso 2006, no pet.); Galveston Racquet Club, Inc. v. City of Galveston, 178 S.W.3d 167, 170 (Tex. App.--Houston [1st Dist.] 2005, no pet.); City of El Paso v. Chacon, 148 S.W.3d 417, 422 (Tex. App.--El Paso 2004, pet. denied).

The Feltons also allege that the City knew of a dangerous condition of its land and had a legal duty to warn the Feltons or to make the condition reasonably safe but failed to do so. The Feltons further allege that the City "owed a legal duty to [them] to use ordinary care not to injure intentionally, wantonly, or through gross negligence, but did so."

The Feltons' claim fails here too since, as previously mentioned, they are suing solely for property damages, (4) and have not alleged "the use or operation of a motor-driven vehicle or equipment." See Tex. Civ. Prac. & Rem. Code Ann. 101.0215; see also Likes, 962 S.W.2d at 494;De Anda, 581 S.W.2d at 796-97. Further, a plaintiff suing a governmental entity for premises liability must bring his claim pursuant to 101.021 (2) and 101.022(a). See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (2), 101.022 (a); see e.g., Tennison, 509 S.W.2d at 562; State v. Estate of Horton, 4 S.W.3d 53, 54 (Tex. App.--Tyler 1999, no pet.); Hawley, 830 S.W.2d at 280-81. Thus, the Feltons were required to allege sufficient facts, pursuant to 101.021 (2), that the City was responsible for "personal injury [or] death so caused by a condition or use of . . . real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann 101.021. Clearly, the Feltons have not done so.

Because the Feltons solely assert a claim for property damage, and have not otherwise alleged sufficient facts to waive the City's immunity with respect to their claims of negligence and gross negligence, the trial court lacked subject-matter jurisdiction and erred in denying the City's plea to the jurisdiction with respect to these claims. See Miranda, 133 S.W.3d at 226-28; City of Houston v. Boyle, 148 S.W.3d 171, 180 (Tex. App.--Houston [1st Dist.] 2004, no pet.).

Article I, 17

Article I, Section 17 of the Texas Constitution, sometimes referred to as the "takings clause," provides that "[n]o 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. It is well established that sovereign immunity does not shield the City from an action for compensation under the takings clause. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); State v. Biggar, 848 S.W.2d 291, 295 (Tex. App.--Austin 1993), aff'd, 873 S.W.2d 11 (Tex. 1994). Thus, the takings clause prohibits the State from taking a person's property under its sovereign powers without adequate compensation unless by such person's consent. Tex. Const. art. I, 17. However, "a plaintiff suing a governmental entity cannot create jurisdiction by stating a takings claim unless that claim is facially valid." Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.--Dallas 2004, no pet.).

To establish a takings claim, the Plaintiff must show that (1) the City intentionally performed certain acts in the exercise of its lawful authority; (2) the acts were the proximate cause of the taking, damaging, or destroying of property; (3) the plaintiff has an ownership interest in the property; and (4) the taking, damaging, or destroying of the property was for public use. Steele, 603 S.W.2d at 788-92. When "a governmental entity physically damages private property in order to confer a public benefit, that entity may be liable under Article I, Section 17, if it (1) knows that a specific act is causing identifiable harm; or (2) knows that the specific property damage is substantially certain to result from an authorized government action." City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). However, when "damage is merely the accidental result of the government's act, there is no public benefit and the property cannot be said to be 'taken or damaged for public use.'" Id. at 313 (quoting Tex. Highway Dep't v. Weber, 147 Tex. 628, 219 S.W.2d 70, 71 (1949)). Thus, negligence that merely contributes to the damage or destruction of property does not constitute a taking. Id. Whether particular facts are enough to constitute a taking is a question of law. See Mayhaw v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998).

II. The Feltons' Unlawful Takings and Nuisance Claims

The Feltons also assert claims for an unconstitutional taking by inverse condemnation and inverse condemnation by nuisance. They allege that "[t]he use of sprinklers without regard to need or rainfall was intentional or grossly negligent and unreasonable under the circumstances," and was the proximate cause of damages to their property. (5) The Feltons allege that the City had actual notice of the condition of its property and lack of drainage because the building on the opposite side of the park had previously suffered water damage for the same reason and that this notice is sufficient to establish the requisite intent for an unlawful takings claim. We disagree.

In Jennings, the Texas Supreme Court addressed the specific issue of intent in an unlawful takings case and held that "when a governmental entity physically damages private property in order to confer a public benefit, that entity may be liable under Article I, Section 17, if it (1) knows that a specific act is causing identifiable harm; or (2) knows that the specific property damage is substantially certain to result from an authorized government action." Jennings, 142 S.W.3d at 314. The court further explained that the damage must necessarily be incident to or a consequential result of the government's action. Id. Thus, to establish that the City unlawfully "took" or otherwise damaged their property, the Feltons had to allege that the City (1) knew that its watering the park [specific act] was causing the collapse of their adobe structure [causing identifiable harm]; or (2) knew that the collapse of their property [specific property damage] was substantially certain to result from the City's watering of the park [authorized government action]. Id. Mere negligence cannot be considered the lawful exercise of a government's authority as "there is no public benefit and the property cannot be said to have been 'taken or damaged for public use.'" Id. (quoting Weber, 219 S.W.2d at 71).

The Feltons appear to argue that the City's purported knowledge that a building on the opposite side of the park previously suffered water damage "for the same reason" imposes knowledge upon the City in the present case that its watering the park was causing damage to the Feltons' adobe structure. We disagree and find the facts, as pled by the Feltons, insufficient to support a claim that the City knew its watering the park was causing the collapse of the Feltons' property or that the City knew the collapse of the Feltons' adobe structure was substantially certain to result from its watering the park. Jennings, 142 S.W.3d at 315 (holding that proof that the City's actions sometimes resulted in such damage was insufficient to show City knew its actions would cause flooding or that its actions were substantially certain to lead to such damage); see also City of Van Alstyne v. Young, 146 S.W.3d 846, 850 (Tex. App.--Dallas 2004, no pet.) (holding that the City's knowledge of alleged problems with sewer pumps which had a history of failure and resulting back ups was not the same as knowledge that the City's decision not to replace the pumps would result in a flood of the plaintiff's home).

Moreover, in an affidavit attached to the City's plea to the jurisdiction, Alejandro A. Garcia, Director of Public Works and City Engineer for Del Rio, stated that the sprinkler was designed to spray water onto park property and away from the Feltons' property. He further stated that the sprinkler was not intended to direct water onto the Feltons' property or otherwise inundate the Feltons' property, and if the City had known this was occurring, he would have directed city employees to correct the situation.

The Feltons do not object to this affidavit, nor do they otherwise submit evidence of their own in response to the City's plea. And, while we are cognizant of the fact that "a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction," the Texas Supreme Court has stated on more than one occasion that "because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with the case." Miranda, 133 S.W.3d at 223 (citing Bland Indep. Sch. Dist., 34 S.W.3d 547, 555 (Tex. 2000)); see also County of Cameron v. Brown, 80 S.W.3d 549, 556-57 (Tex. 2002) (considering pleadings and limited jurisdictional evidence in evaluating foreseeability element of premises defect claim under the TTCA); Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (examining pleadings and limited jurisdictional evidence to determine whether plaintiff affirmatively demonstrated waiver of sovereign immunity); Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001)(analyzing the facts alleged by the plaintiff and to the extent relevant, evidence submitted by the parties in considering whether plaintiff stated a claim for injuries caused by motor-driven equipment).

In the present case, the only facts pled by the Feltons to establish that the City acted intentionally, were their statements that "[t]he City had actual notice of the condition of its land and lack of adequate drainage because the building on the opposite side of the land had previously suffered water damage for the same reason," and "[t]he City gave the other landowners permission to build a small retaining wall to keep the water out" but failed to warn the Feltons of the condition. This is insufficient to demonstrate that the City intended to take or otherwise damage the Feltons' property in order to confer a public benefit. Jennings, 142 S.W.3d at 316. The facts, as pled by the Feltons, merely establish that the City was, at most, negligent in watering the park, "without regard to need or rainfall," and that this likely resulted in excess surface water inundating the Feltons' property. See Weber, 219 S.W.2d at 71 (reaffirming that there is no public benefit when damage is the accidental result of the government's act). Further, the City presented evidence that demonstrated it lacked the requisite intent necessary to find a valid takings claim. See Jennings, 142 S.W.3d at 314. Accordingly, we find the Feltons' takings claim is facially invalid; therefore, the trial court lacked subject-matter jurisdiction and erred in denying the City's plea to the jurisdiction with respect to this claim. See Bell, 146 S.W.3d at 825; Dahl, 92 S.W.3d at 862.

The Feltons additionally complained that the City created a nuisance by over watering, lack of proper drainage, and diversion of excess waters onto the Feltons' property. To maintain a cause of action for nuisance, the Feltons must show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from alleged improper or negligent use. See Loyd v. ECO Res., Inc., 956 S.W.2d 110, 133 (Tex. App.--Houston [14th Dist.] 1997, no pet.); Schneider v. City of Cuero, 749 S.W.2d 614, 617 (Tex. App.--Corpus Christi 1988, writ denied). Here the Feltons do not allege there is anything inherent in the sprinkler or drainage systems that renders the over watering or inadequate drainage a nuisance separate and apart from the alleged negligent act of the City employee(s) responsible for over watering. See Loyd, 956 S.W.2d at 133; Schneider, 749 S.W.2d at 617.

Moreover, to recover on a nuisance claim against the City pursuant to Art. I, 17 of the Texas Constitution, the Feltons must establish either that governmental immunity has been waived or that the nuisance rises to the level of a constitutional taking. Tex. Const. art. I, 17; Jennings, 142 S.W.3d at 316; Kendall, 172 S.W.3d at 627. Having previously concluded that the City lacked the requisite intent and had not otherwise waived immunity, and because the facts as pled by the Feltons do not constitute a valid nuisance claim, we hold that the City is immune from suit; therefore, the trial court erred in denying the City's amended plea to the jurisdiction. See Bell, 146 S.W.3d at 825; Dahl,92 S.W.3d at 862.

Given our decision that the trial court lacked subject-matter jurisdiction, we need not address the City's final issue regarding damages.

Conclusion

Accordingly, the trial court's order denying the City's plea to the jurisdiction is reversed and judgment is rendered dismissing the claims against the City of Del Rio, Texas for want of subject-matter jurisdiction.

Karen Angelini, Justice

1. Although the Feltons' First Amended Petition specifically sets out the three causes of action mentioned, they also appear to reference language and a duty arising for a premises defect claim, as well as a claim that the City did not properly implement a drainage system to counter the watering issue. Accordingly, we address these claims as well. See Tex. Dep't of Park & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (holding that in reviewing a plea to the jurisdiction, the plaintiff's pleading should be construed liberally in favor of the plaintiff). Further, and in what was likely an abundance of caution, the City also addresses an allegation that it issued an improper demolition order in this case. However, we interpret the Feltons' allegations in this regard as asserting an Art. I, Sec. 17 claim which we address later in this opinion.

2. While the Feltons allege that the City's "omission [in] properly drain[ing] the land" was a proximate cause of damage to their property, we do not interpret this as a claim alleging a failure to properly implement a drainage system as the Feltons have not alleged facts to support such a claim. In any event, we agree with the City that the design and level of improvement of the drainage system in this case would be left to the discretion of the City. SeeTex. Civ. Prac. & Rem. Code Ann. 101.056 (Vernon 2005) (providing that City retains sovereign immunity for its decisions not to perform certain acts).

3. The Feltons argue that because they have not pled the TTCA, its terms are not applicable. We disagree. See Snelling v. Mims, 97 S.W.3d 646, 648 (Tex. App.--Waco 2002, no pet.) (finding that plaintiffs' claims fell under the TTCA notwithstanding the fact that plaintiffs did not file suit pursuant to this statute). To hold otherwise, would defeat the purpose of the Act.

4. To the extent the Feltons' claim for mental anguish may be compensable as a personal injury, the Texas Supreme Court has held that "damages measured by diminution in value are an adequate and appropriate remedy for the negligent harm to real or personal property, and that mental anguish based solely on negligent property damage is not compensable as a matter of law." Likes, 962 S.W.2d at 497.

5. Although the Feltons have alleged that the City acted with gross negligence in over watering the park adjacent to their property, this court has previously held that "gross negligence does not supply the requisite intent to sustain liability of a governmental entity for a constitutional takings claim." Karnes City v. Kendall, 172 S.W.3d 624, 629 (Tex. App.--San Antonio 2005, pet. denied).