Opinion
NO. 09-15-00334-CV
05-17-2018
CITY OF MAGNOLIA, CITY OF MAGNOLIA 4A ECONOMIC DEVELOPMENT CORPORATION, AND CITY OF MAGNOLIA 4B COMMUNITY DEVELOPMENT CORPORATION, Appellants v. DAVID SMEDLEY, Appellee
On Appeal from the 410th District Court Montgomery County, Texas
Trial Cause No. 14-11-12312-CV
MEMORANDUM OPINION
This matter was remanded to this Court by the Texas Supreme Court. See City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297 (Tex. 2017). The Supreme Court reversed that part of our judgment that dismissed the appeal of City of Magnolia 4A Economic Development Corporation and City of Magnolia 4B Community Development Corporation (the MDCs) for lack of jurisdiction, and the Court remanded the case to this Court for further proceedings. Id. at 302. Accordingly, we address the merits of the MDCs' appeal.
City of Magnolia 4A Economic Development Corporation and City of Magnolia 4B Community Development Corporation are structured as separate entities but refer to themselves collectively in their joint pleadings and briefs as the "Magnolia Dev. Corps." In this opinion, as in our earlier opinion, we refer to the two entities collectively as "the MDCs." The MDCs were the only parties to appeal our decision in City of Magnolia v. Smedley, 533 S.W.3d 1 (Tex. App.—Beaumont 2016). See City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 298 n.2 (Tex. 2017).
As we discussed in our earlier opinion, the City of Magnolia (City) and the MDCs, collectively Appellants, were named as defendants along with other parties in a lawsuit filed by David Smedley (Appellee, Smedley, or Plaintiff), wherein Smedley alleged that the defendants caused his property to flood. See City of Magnolia v. Smedley, 533 S.W.3d 1, 4 (Tex. App.—Beaumont 2016). The City and the MDCs filed this interlocutory appeal of two orders entered by the trial court on July 27, 2015, wherein the trial court denied the motion for summary judgment filed by the MDCs. See id. On remand, we confine our discussion to the arguments raised by the MDCs because the substance of this Court's ruling as to the City has not been reversed or remanded.
Factual Background
We outlined the underlying facts in our previous opinion. See id. at 4-11. To summarize, David Smedley, a Florida resident, alleges that he owns real property described as Lots 7&8 Block 5, Melton addition, Town of Magnolia, Gamble Dawson Survey A-177, also described in the plat records of Montgomery County, Texas, Vol. 29, pg. 75, with a physical address of 511 Magnolia Blvd., Magnolia, Texas 77354, hereinafter "the Smedley Property." On November 11, 2014, Smedley filed an Original Petition against the City and others, but the MDCs were not named as parties in the Original Petition. In his suit, Smedley alleged that the defendants caused the Smedley Property to flood and retain standing water, causing damages to Smedley and to the building located on the Smedley Property.
On April 9, 2015, Smedley filed Plaintiff's 1st Amended Petition (Amended Petition) reasserting claims against the City, and adding the MDCs and others as defendants. Smedley alleged in his Amended Petition that
13. 511 Magnolia Blvd. was built in 1901 and was known as the old Dean's Store when the railroad first came to the city of Magnolia. In 2004, Defendant CRJ [sic] Lucky[,] Inc., constructed a parking lot to the north east of Plaintiff's property. In 2011, the Defendant, City of Magnolia, completed construction on a walk way adjacent to the northern edge of 511 Magnolia Blvd. called the Magnolia Stroll through the direction and instruction of the Defendant 4A Corp. and 4B Corp[.] using the services of the Defendant B&C Constructors, L.P. Prior to this construction, the Plaintiff's property had not been subjected to consistent flooding when it rained.
14. From 1900 to 2004, 511 Magnolia Blvd. drained surface water to the northeast at a slope of 1.2%. In 2004 Defendant CRJ [sic] Lucky, Inc., carried out construction of a parking lot in the area adjacent to where the surface water used to be drained, creating a partial damming effect.In the Amended Petition, Smedley also alleged that
15. In 2011, the City of Magnolia, through the direction and funding by 4A Corp. and 4B Corp. completed the Magnolia Stroll through the use of Defendant B&C Constructors[,] L.P. The Stroll ran along the northern portion of the Plaintiff's property and its finished construction completed the damming effect initiated by Defendant CJR Lucky[,] Inc.'s construction of the parking lot in 2004.
16. Subsequent to the completion of the parking lot and the Magnolia Stroll, whenever significant rainfall occurs surface water is impounded in an area between the Plaintiff's property and Defendant CJR Lucky[,] Inc.'s parking lot. This impoundment of water has caused extensive damage to the Plaintiff's land, to the fixtures and improvements on that land, including a significant degradation of floor elevation in the building, reduction of vertical clearance in the crawlspace below the building, and rot of wood girders, joists and wall studs.
17. Plaintiff discovered the damage done to his property in August of 2013, at which point he sent a certified letter to the Defendant, City of Magnolia, informing them of his claim, which was essentially ignored.
18. The Plaintiff has hired at his own expense professional engineers who have investigated the construction of Defendant CJR Lucky[,] Inc.'s parking lot and Defendant City of Magnolia's Magnolia Stroll who informed the plaintiff that similar flooding will recur each time there is significant rainfall.
24. The occurrence and damage to the property described in this petition is a direct and proximate result of the negligence of Defendant, City of Magnolia, the Defendant 4A Corp., the Defendant 4B Corp., . . . and their agents, servants, and officers in the following particulars: The
Defendant, City of Magnolia, with direction and funding through the Defendant 4A Corp. and 4B Corp., and the employment of Defendant B&C Constructors[,] L.P., through the use of motor driven equipment and negligently altered the slope of the area of and adjacent to the Plaintiff's property during the construction of the "Magnolia Stroll."Smedley sought a judgment for actual and special damages, and he requested that "[t]he defendants be enjoined permanently from allowing diffuse surface water from gathering on the Plaintiff's property, and ordered to return the drainage of the property to be returned [to] its natural position, all as more particularly set out in Paragraph 28 of [the] petition."
. . . .
28. With the construction of the parking lot and the construction of the Magnolia City Stroll, the Defendants City of Magnolia and CJR Lucky, Inc., diverted the natural flow of diffuse surface water across the land owned by them, allowing and causing the water to stream onto and over the plaintiff's property. Specifically, the parking lot and the stroll respectively create a damming effect of the previously flowing diffuse surface water causing it to pool on the Plaintiff's property during the rain.
On May 8, 2015, the MDCs filed an Original Answer to the Amended Petition and a Motion to Dismiss and Plea to the Jurisdiction. In the Motion to Dismiss and Plea to the Jurisdiction, the MDCs alleged that Smedley asserted claims against the MDCs for flooding, but Smedley had no basis in fact or law for the three theories of recovery he sought in his petition, which included claims for (1) negligence, (2) Section 11.086(a) of the Texas Water Code, and (3) a taking (inverse condemnation). The MDCs sought a dismissal under Rule 91a of the Texas Rules of Civil Procedure, and argued that the petition failed to state a valid claim against the MDCs because
(1) As a matter of law, the design and construction of the Magnolia Stroll is a discretionary function, exempted from the Tort Claims Act waiver of immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.056. Accordingly, the Plaintiff's tort claims are baseless in law.
(2) The Plaintiff has not alleged any facts which, if proved true, would establish a negligence claim for which the Magnolia Dev. Corps.' governmental immunity from suit has been waived by the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). In particular,
(a) no facts are alleged to show that the property damage in question was caused by the negligence of a Magnolia Dev[.] Corp[.] "employee" acting within the scope of his or her employment; and
(b) no facts are alleged to prove that the property damage in question arose from any negligence by either Magnolia Dev[.] Corp[.] in the use or operation of a motor-driven vehicle or motor-driven equipment.
Accordingly, the Plaintiff's negligence claim is baseless in fact.
(3) Section 11.086 of the Water Code does not waive governmental immunity from suit. Therefore, Plaintiff's Water Code claim against the Magnolia Dev. Corps. is baseless in law.
(4) Plaintiff has not alleged any facts which, if proven true, would tend to prove that either of the Magnolia Dev. Corps. owns or controls any of the property in question, or that such entities have any legal authority to restore the drainage to its natural state before the construction of the Stroll. Therefore, Plaintiff has failed to plead jurisdictional facts sufficient to confer standing on him to sue the Dev. Corps. for injunctive relief under any of the theories alleged.
(5) The Magnolia Dev. Corps. are immune from liability for a judgment for money damages. See TEX. LOC. GOV'T CODE §§ 504.007(b),
505.006(b). Therefore, all damage claims against the Dev. Corps. are baseless in law.
(6) Plaintiff has alleged no facts to suggest that the property damage in question was caused intentionally by either Magnolia Dev[.] Corp. Therefore, Plaintiff's takings claim against the Dev. Corps. is baseless in fact.
(7) Plaintiff has not alleged any facts which, if proven true, would tend to prove that either of the Magnolia Dev. Corps. has taken the Plaintiff's property. Therefore, the Plaintiff's takings and Water Code claims against the Dev. Corps. are baseless in fact.
(8) Plaintiff has not alleged any facts which, if proven true, would tend to prove that either of the Magnolia Dev. Corps. has taken the Plaintiff's property for any public use. Therefore, the Plaintiff's takings claim against the Dev. Corps. is baseless in fact.
(9) Plaintiff has not alleged any facts which, if proven true, would tend to prove that either of the Magnolia Dev. Corps. was delegated the power of eminent domain to take the Plaintiff's property. By law, such delegation cannot be made. TEX. LOC. GOV'T CODE § 501.010. Therefore, the Plaintiff's takings claim against the Dev. Corps. is baseless in fact.
Smedley filed a response to the MDCs' Motion to Dismiss and Plea to the Jurisdiction. In his response, Smedley argued that corporations like the MDCs do not have the "expansive governmental immunity from suit" as alleged by the MDCs, and that by statute the MDCs would only have immunity from liability for damages arising as tort claims, and from damages, and because "the Plaintiff's Amended Petition has the statutory claims of Tex. Water Code § 11.086, the Defendants' Plea to Jurisdiction is therefore improper . . ." and should be denied.
The MDCs filed a Reply to Plaintiff's Response to Motion to Dismiss. In their Reply, the MDCs argued that
1. Regardless of whether the Defendants are immune from suit or simply have no liability from damages, there appears to be no dispute that Plaintiff cannot recover damages against the Magnolia Dev. Corps. See Plaintiff's Response, at p. 4 (admitting that Tex. Loc. Gov't Code §§ 504.107(b), and 505.106(b) "grant immunity from liability from damages only"). The statutory language is quite clear: A municipal development corporation [is] "not liable for damages arising from the performance of a governmental function." Tex. Loc. Gov't Code §§ 504.107, and 505.106.
2. Smedley contends that the bar to liability on damages only applies to torts, and, with[o]ut citation, states that the cause of action provided by Section 11.086 of the Water Code is not a tort cause of action. This argument fails for two reasons. First, Section 11.086 is a statutory tort. See Solomon v. Steitler, 312 S.W.3d 46 (Tex. App.—Texarkana 2010, not pet.). Second, the prohibition on the recovery of damages is not limited to torts. Sections 504.107(b) and 505.106(b) provide that development[] corporations are "not liable for damages arising from the performance of a governmental function," without limitation. Id.
3. The case cited by Smedley, City of Leon Valley Econ. Dev. Corp. v. Little, 422 S.W.3d 37 (Tex. App.—San Antonio 2013, no pet.), is easily distinguishable. There the court plainly recognized that "section 505.106(b) statutorily invokes common-law governmental immunity, including both immunity from liability and immunity from suit, but only for tort claims." [Id.] at 41. The court therefore held that the statutory immunity provided by Section 505.106(b) did not apply to a common law contract claim. The court did not hold that the immunity did not apply to a statutory tort claim such as a claim for damages under Section 11.086 of the Water Code.
4. It will be added here that the Plaintiff lacks standing to sue the Magnolia Development Companies under Section 11.086(a) in any event. In his response, Smedley has allege[d] that the Magnolia Stroll was constructed under the direction of the[] Magnolia Dev. Corps.,
"who had the final approval on design, construction, and change orders." Response, at p. 2. The statutory cause of action lies only against the owner of the Stroll, which is not alleged to be the Dev. Corps. See Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978) ("the statute has no application to persons or entities who are not proprietors of land. . . . Accordingly, a party injured by an excess overflow of surface water caused by the acts of a third party, whether or not acting for or with the knowledge and consent of the other, must, as to the third party, look to the common law for remedy").
5. Smedley appears to concede that his negligence claim is barred by immunity. He also offers no rebuttal to the argument that his claim for a taking cannot be brought against the development corporations (since they lack the power of eminent domain). Nor does he offer any rebuttal to the argument that he lacks standing to seek injunctive relief against the development corporations.
On June 15, 2015, the trial court entered an "Order on Motion to Dismiss and Plea to the Jurisdiction of Defendants City of Magnolia 4A Economic Development Corporation and 4B Community Development Corporation[.]" However, despite the title of the order, the body of the order stated that the City of Magnolia's motion and plea were heard and the plea was "[g]ranted as to all claims under the Texas Tort Claims Act and as to all claims for damages; otherwise, they are Denied." An amended order changed that portion of the body of the order to correctly reflect that the court had heard the MDCs' Motion to Dismiss and Plea to the Jurisdiction.
On June 24, 2015, the MDCs filed a no-evidence and traditional Motion for Summary Judgment, arguing as follows:
. . . [T]he remaining claim in this case [after the trial court's ruling on the MDCs' Motion to Dismiss and Plea to the Jurisdiction] is for the injunctive relief[.]
There are two theories of liability on which this claim for injunctive relief has been brought - (1) a claim for a taking under TEX. CONST. art. I, section 17; and (2) a claim for a violation of the Texas Water Code, section 11.086.
. . . .
As a matter of law, neither claim supports the requested injunction because the Magnolia Dev. Corps. do not own or control the Smedley Property or the Magnolia Stroll, and thus, these Defendants lack the power to comply with the requested injunction. Further, the Plaintiffs' claims lack merit (or a jurisdictional basis) for the following additional reasons:
A. Section 11.086 of the Texas Water Code.
(1) The Plaintiff lacks standing to assert a claim against the Magnolia Dev. Corps. under Section 11.086 of the Texas Water Code because the Magnolia Development Corps. are not the proprietors of the Magnolia Stroll or of the [adjacent] tract.
(2) No evidence exists to prove that the Magnolia Dev. Corps. are proprietors of the Magnolia Stroll or of the [adjacent] tract. TEX. R. CIV. P. 166a(i).
(3) Under TEX. WATER CODE § 11.086(a), there is no evidence of any of the three elements for liability - that is, no evidence that:
(a) either of the Magnolia Dev. Corps. has diverted or impounded the natural flow of surface water;
(b) in such manner as to cause;
(c) damage to the property of the Plaintiff Smedley. Tex. R. Civ. P. 166a(i).
(4) As a matter of law, the impoundment and/or diversion of that natural flow of water onto the Smedley property was directly caused - as Smedley has admitted - by the elevation and paving of the adjoining []
lot in 2005, some six years before the construction of the Magnolia Stroll.The MDCs attached exhibits to their motion for summary judgment, including the affidavit of the City Administrator for the City of Magnolia and certain discovery responses by Smedley. The MDCs set their Motion for Summary Judgment on the submission docket and filed a Notice of Submission for the Motion for Summary Judgment for ruling by submission on July 27, 2015.
B. Tex. Const. art. I, section 17.
(1) No evidence exists that the Magnolia Dev. Corps. was delegated the power of eminent domain to take the Plaintiff's property. Thus, the Magnolia Dev. Corps. cannot be liable for a taking. TEX. R. CIV. P. 166a(i).
(2) As a matter of law, the Magnolia Dev. Corps. are not public entities with the power of eminent domain. TEX. LOC. GOV'T CODE § 501.010. Thus, the Magnolia Dev. Corps. cannot be liable for a taking.
(3) Injunctive relief cannot be granted under the Takings Clause in this case, because even if, arguendo, the Plaintiff is able to establish the elements of liability for a taking - which he cannot - he would have an adequate remedy at law (damages) from the City.
(4) No evidence exists to prove that the property damage in question was caused intentionally by either Magnolia Dev[.] Corp. TEX.[] R.[] CIV. P. 166a(i).
(5) As a matter of law, the property damage in question was not caused intentionally by either of the Magnolia Dev. Corps.
(6) No evidence exists to prove that either Magnolia Dev. Corp. has taken or damaged the Plaintiff's property. TEX. R. CIV. P. 166a(i).
(7) As a matter of law, the Magnolia Dev. Corps. have not taken or damaged the Plaintiff's property.
(8) No evidence exists to prove that the property damage in question was done for any public use. TEX. R. CIV. P. 166a(i).
(9) As a matter of law, the property damage in question was not done for any public use.
On July 27, 2015, the trial court entered an Order on the Motion for Summary Judgment filed by the MDCs, wherein the trial court denied the motion for summary judgment filed by the MDCs and ordered that the "Plaintiff may, within 14 days, amend his pleadings to add or clarify claims, if any, for prospective relief (declaratory or injunctive relief to require compliance with statutory or constitutional provisions) against appropriate persons in their official capacity." On August 3, 2015, the City and the MDCs filed a joint notice of appeal, and notice of stay pending interlocutory appeal. The parties submitted briefing on appeal and presented oral arguments before this court.
Issues on Appeal
On appeal, the Appellants contend that "[a]s to the [MDCs], the [trial] court refused to dismiss the taking claim for injunctive relief." Smedley argues that the MDCs "do not share the same level of expansive governmental immunity that the City of Magnolia itself purports to have[,]" that the MDCs have demonstrated that they are "possessors of the Stroll[,]" and that by statute the MDCs would only have immunity from liability for damages arising from tort claims, and from damages. According to Smedley, "Appellee's Amended Petition has not only tort claims but the statutory claim of Tex. Water Code §11.086" and even though sections 504.107(a) and 505.106(a) of the Local Government Code grant the MDCs immunity from liability from damages arising from the performance of governmental functions, immunity from liability "does not affect a court's jurisdiction to hear a case and cannot be raised in a plea to the jurisdiction."
In Appellant's Post-Submission Brief, the MDCs argue that
The second jurisdictional challenge [by the MDCs], a traditional and no-evidence motion for summary judgment, asserted not only the plaintiff's lack of constitutional standing, but also the lack of statutory standing under Section 11.086 of the Water Code[]. Significantly, the motion for summary judgment is not a pleadings challenge. It is founded on conclusive summary judgment proof that negates standing,[] and, as a no-evidence motion, it challenges Smedley's inability to produce legal sufficient evidence of standing.
Appellee argues that on June 15, 2015, the trial court granted the MDCs' Motion and Plea to Jurisdiction as to all claims under the Texas Tort Claims Act and as to all claims for damages, but otherwise denied the rest of the plea and motion. By virtue of that order, the Appellee argues that Smedley retained injunctive claims against the MDCs through "the Takings Clause and Section 11.086 of the Water Code[,]" and he states the trial court later also denied in all respects the motion for summary judgment filed by the MDCs.
Appellants state that they filed this interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). The Appellants do not provide specific briefing that corresponds directly to the stated issues. Nevertheless, we construe the Appellants' briefs to include arguments that the trial court erred in refusing to grant the summary judgment filed by the MDCs because: the interlocutory appeal of the MDCs is based on standing - in particular, non-redressability, and the claims asserted by Smedley are not "redressable" against the MDCs; the MDCs are not proper defendants for claims under either Section 11.086 of the Water Code or Article I, Section 17 of the Texas Constitution; the MDCs do not own the "Magnolia Stroll," they are in no position to carry out an injunction directing them to restore the land to the status quo ante, and the district court lacks subject-matter jurisdiction over Smedley's claims against the MDCs for the injunctive relief Smedley seeks against them.
We cite to the current version of statutes herein because the subsequent amendments do not affect our disposition.
Jurisdiction
A trial court must have subject-matter jurisdiction before it can exercise authority to decide a case. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject-matter jurisdiction is never presumed and cannot be waived. Id. at 443-44. It may be raised for the first time on appeal by a party or sua sponte by a reviewing court. See id. at 445-46; see also Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (holding that appellate court could consider sovereign immunity issue raised for first time in interlocutory appeal); Jack Jones Hearing Ctrs., Inc. v. State Comm. of Exam'rs in the Fitting & Dispensing of Hearing Instruments, 363 S.W.3d 911, 914 (Tex. App.—Austin 2012, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Generally, this Court does not have jurisdiction over appeals from interlocutory orders unless a statute provides for an interlocutory appeal from such orders. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). A denial of a motion for summary judgment is not a final judgment and is therefore generally not appealable. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). An exception to this rule, however, is provided in section 51.014(a)(8) of the Texas Civil Practices and Remedies Code, to which the Appellants cite as the basis for this interlocutory appeal. This subsection allows an appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001[.]" Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). An interlocutory appeal may be had when a trial court denies a governmental unit's challenge to subject-matter jurisdiction, "irrespective of the procedural vehicle used." Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). The availability of an interlocutory appeal will not be decided by the form or caption of a pleading but will be determined by the substance of the motion to determine the relief sought. Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); see also Tex. Dept. of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) ("an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment"). In order for a party to be entitled to an interlocutory appeal, section 51.014(a)(8) requires a grant or denial of a jurisdictional challenge. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8). Even in the absence of an explicit denial of a jurisdictional challenge, however, if a trial court rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack, it has implicitly denied the jurisdictional challenge. Thomas, 207 S.W.3d at 339-40. This implicit denial satisfies section 51.014(a)(8) and gives the court of appeals jurisdiction to consider an otherwise impermissible interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex. R. App. P. 33.1(a)(2)(A); Thomas, 207 S.W.3d at 340.
We note that we review de novo a trial court's disposition of a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Standards of Review
The standard for reviewing a traditional summary judgment is well established: (1) the movant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; and (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, the Court must take all evidence favorable to the non-movant as true and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).
A no-evidence summary judgment motion is essentially a pretrial directed verdict motion. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). In a no-evidence summary judgment motion, the movant contends that there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the non-movant produces summary judgment evidence raising a genuine issue of material fact. Id. As in a directed verdict context, the trial court must review the evidence in the light most favorable to the non-movant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Analysis
From our reading of the prior order on the MDCs' motion to dismiss and plea to the jurisdiction, the only claims that remain against the MDCs would be for prospective relief, whether declaratory or injunctive, as might be required for compliance with any viable statutory or constitutional provisions, and a takings claim, if any.
In their motion for summary judgment, the MDCs argued that Smedley lacked standing to bring a claim under section 11.086 of the Water Code against the MDCs because they did not own or control the Magnolia Stroll, the Smedley Property, or the adjacent tract. Section 11.086 provides in relevant part that
(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.Tex. Water Code Ann. § 11.086(a), (b) (West 2008). The Supreme Court has explained to whom the predecessor statute to Section 11.086 applies:
The statute is a rule of property that defines and limits the rights of property owners. As a rule of property which creates easements and limits their use, the statute has no application to persons or entities who are not proprietors of land.See Kraft v. Langford, 565 S.W.2d 223, 229 (Tex. 1978), disapproved on other grounds by Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281 (Tex. 2004). The MDCs attached as an exhibit to their motion for summary judgment the affidavit of Paul Mendes, the City Administrator for the City of Magnolia, who averred the following:
[] The City has not conveyed any interest in the Magnolia Stroll to the [MDCs]. The City has not delegated any power to the [MDCs] to physically maintain the Stroll, or to condemn property or take any action to alter the drainage of any tract in the City. The only involvement of either corporation in the operation of the Stroll is that the 4B Corporation provides some amount of funding to the maintenance of the Stroll. The [MDCs] do not own or control the Stroll, the Plaintiff's tract, or the [adjacent] tract.The MDCs also attached a surveying report and a city ordinance that reserved the easement as a City right-of-way. The appellate record does not include a response to the MDCs' motion for summary judgment filed by Smedley. We conclude that the MDCs are improper defendants for a claim under section 11.086.
As for any takings claim, we also conclude that the trial court erred in failing to grant the MDCs' motion for summary judgment with respect to that claim. Article I, Section 17 of our State Constitution provides:
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 . . . .Tex. Const. art. I, § 17(a). In their motion for summary judgment, the MDCs cited section 501.010 of the Local Government Code in arguing that, as a matter of law, they are not public entities with the power of eminent domain. Section 501.010 provides, in relevant part, that "[a] unit may not delegate to a corporation any of the unit's attributes of sovereignty, including . . . the power of eminent domain[.]" Tex. Local Gov't Code Ann. § 501.010 (West 2015). Because the MDCs lack the power of eminent domain, as a matter of law, the MDCs cannot be subject to a suit under Article I, section 17(a) of the Texas Constitution. See id. Accordingly, we reverse the trial court's judgment denying the MDCs' motion for summary judgment as to Smedley's takings claim.
But for the additional language in the trial court's July 27, 2105 Order, we would reverse and render judgment in favor of the MDCs as to all remaining claims. Nevertheless, the trial court also included language in the order that granted Smedley fourteen days to amend his Petition to add such claims, if any, "for prospective relief (declaratory or injunctive relief to require compliance with statutory or constitutional provisions) against appropriate persons in their official capacity." On appeal, neither the City nor the MDCs complained about the trial court's language allowing Smedley to amend and add claims, if any, for prospective relief against appropriate persons in their individual capacity. We expressly do not rule on such claims, if any. Accordingly, we reverse the trial court's order of July 27, 2015, wherein the trial court denied the MDCs' motion for summary judgment regarding claims under the Water Code and the Takings Clause, and we remand to the trial court solely with respect to the additional language in the trial court's order giving Smedley fourteen days to amend his petition in accordance with the trial court's order.
REVERSED AND REMANDED.
/s/_________
LEANNE JOHNSON
Justice Submitted on December 8, 2017
Opinion Delivered May 17, 2018 Before McKeithen, C.J., Horton and Johnson, JJ.