Justice Jaime Tijerina

Plaintiffs own property within the city, which owns and operates a leaky underground water pipe running through the property that has repeatedly flooded it, despite the city’s efforts to repair the pipe. Plaintiffs sued the city, asserting claims of inverse condemnation, nuisance, trespass, and negligence. Plaintiffs allege that the city knew its repairs would not stop the flooding and that the flooding rendered parts of the property unusable, thus resulting in a taking. The city responded that plaintiffs failed to make a valid takings claim because “[a]wareness of possible damage is not evidence of intent,” and that the city’s “failure to prevent future property damage is not evidence of an intent to cause property damage.” The city filed a plea to the jurisdiction, which the trial court granted. Plaintiffs claimed, and the city did not dispute, that they did not receive notice of this ruling until after the deadline for filing an appeal had passed. They filed a bill of review, and both parties filed motions for summary judgment. The trial court granted plaintiffs’ motion and petition for bill of review. It further denied the city’s motion and vacated its grant of the city’s plea to the jurisdiction. The trial court subsequently granted the city’s second plea to the jurisdiction in the original cause and dismissed plaintiffs’ claims against the city.

These are the facts of Clayton Richter, Dorothy Richter, and Jonathan Richter v. City of Waelder (No. 13-21-00392-CV; delivered August 31, 2023). Both plaintiffs and the city appealed, the plaintiffs on the trial court’s grant of the second plea to the jurisdiction, the city on the trial court’s grant of the bill of review. The court of appeals initially dismissed both appeals for lack of jurisdiction and remanded to the trial court for consideration of the merits. Back at the trial court, plaintiffs filed an unopposed motion for entry of judgment on the merits in the new cause, but the trial court once again granted the city’s third plea to the jurisdiction and dismissed plaintiffs’ claims with prejudice. Plaintiffs appealed again. This time the issue before the court of appeals was whether plaintiffs were entitled to judgment on the merits on the bill of review, “an equitable action brought to set aside a final judgment in a former suit that is otherwise no longer appealable or subject to the trial court’s plenary power” (citations omitted).

In an opinion by Justice Tijerina, the court of appeals reversed the trial court’s order granting the bill of review and rendered judgment denying plaintiffs’ petition for a bill of review. “To be successful,” Justice Tijerina wrote, “a bill of review complainant must allege and present prima facie proof of the following elements: (1) a meritorious claim or defense to the cause of action alleged to support the prior judgment, (2) which the complainant was prevented from making by official mistake or by the opposing party’s fraud, accident, or wrongful act, (3) unmixed with any fault or negligence by the complainant” (citations omitted). A petition “must allege these facts factually and with particularity,” and the petitioner “must present prima facie proof supporting the bill of review allegations” (citations omitted). A trial court must dismiss the case “[i]f the court determines that the bill-of-review complainant has not … presented prima facie evidence of a meritorious defense” to the prior judgment (citation omitted). If it finds that complainant has made such a showing, the trial court must conduct a trial on the bill of review.

The question thus became whether plaintiffs asserted a valid takings claim, enabling them to overcome the city’s assertion of governmental immunity. “To establish the claim,” Justice Tijerina wrote, “the claimant must prove: (1) a governmental entity intentionally performed certain acts (2) that resulted in a taking or damaging of property (3) for public use” (citations omitted). If the damage to the property “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” (citation omitted). So did the city’s failure or inability to repair the pipeline (despite at least four tries) rise to the level of “substantial[] certain[ty] that its actions will damage property” such that “the damage is ‘necessarily an incident to, or necessarily a consequential result of the entity’s action”? In other words, did the city act “intentionally”? The court concluded that it did not. By plaintiffs own allegations and evidence, the city made repeated efforts to fix it, contradicting their allegation of specific intent. Moreover, “[t]he damage [plaintiffs] claim—the flooding of their property—[was] neither necessarily incident to nor a consequential result of the maintenance of a pipeline.” There was thus no evidence of intent to damage the plaintiff’s property and no prima facie evidence of a meritorious defense to the city’s plea to the jurisdiction. Finally, in response to plaintiffs’ argument that they should be allowed to replead their claim, the court held that because their claim did not affirmatively negate jurisdiction, they were not entitled to replead.

This is an interesting and somewhat unusual case for its thorough discussion of the standards for proving up a bill of review, as well as the evidence necessary to show a governmental entity’s “intent” for purposes of making an inverse condemnation claim.

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