NO. 04- 15 -00297- CV

IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT

AT SAN ANTONIO, TEXAS
HETUL BHAKTA D/B/A BUDGET INN, Appellant, V. TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.
On Appeal from the 79th Judicial District Court of Brooks County, Texas; Cause No. 11- 04 -15888-CV; Honorable Richard C. Terrell

BRIEF OF APPELLEE THE TEXAS DEPARTMENT OF TRANSPORTATION
KEN PAXTON JOHN SETH JOHNSON ATTORNEY GENERAL OF TEXAS State Bar No. 24083259 Assistant Attorney General CHARLES E. ROY P. O. Box 12548 FIRST ASSISTANT ATTORNEY GENERAL Austin, Texas 78711-2548 ATTORNEY GENERAL Telephone: (512) 463-2004 Facsimile: (512) 472-3855 JAMES E. DAVIS john.johnson@texasattorney DEPUTY ATTORNEY GENERAL general.gov FOR CIVIL LITIGATION
RANDALL K. HILL ASSISTANT ATTORNEY GENERAL CHIEF, TRANSPORTATION DIVISION
ATTORNEYS FOR APPELLEE THE TEXAS DEPARTMENT OF TRANSPORTATION ORAL ARGUMENT REQUESTED ACCEPTED 04-15-00297-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/23/2015 2:50:44 PM KEITH HOTTLE CLERKii IDENTITY OF PARTIES AND COUNSEL Appellant/Plaintiff: Trial and Appellate Counsel for Appellant:

Appellee/Defendant: Trial and Appellate Counsel for Appellee: Hetul Bhakta d/b/a Budget Inn
Aloysius Peter Thaddeus, Jr. State Bar No. 19819500 Vicente Gonzalez State Bar No. 00798215 V. GONZALEZ & ASSOCIATES, P.C. 121 North 1th Street McAllen, Texas 78501
The Texas Department of Transportation

Curren t Appellate Counsel : John Seth Johnson State Bar No: 24083259 Susan Desmarais Bon nen State Bar No: 05776725
Past Trial and Appellate Counsel : Betsy Johnson (Former Assistant Attorney General) State Bar No: 24048253 Michael Ritt er (Former Assistant Attorney General) State Bar No: 24074960
OFFICE OF THE ATTORNEY GENERAL TRANSPORTATION DIVISION P.O. Box. 12548 Austin, Texas 78711iii TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL

......... . ... ........ ...... ... ............... .. ii
INDEX OF AUTHORITIES...............

...... .... ... ......................................v STATEMENT OF THE CASE............

...... ... .... ......... ......... .................. .. ix ISSUE PRESENTED.........

. ........ ................. ...... ..................... ................................ x STATEMENT OF FACTS...................

..... ..... .... ............................................... ....1
I. Factual background...............

... ..................................................1
II . Relev ant procedural history......

......... ............................................3 SUMMARY OF ARGUMENT...................................................

...... .....4 ARGUMENT...............................................................

...... .............6 I. Scope and s tandard of r eview...

........................ ... .......... .................6
A. Sovereign i mmunity..............................

. ............................6
B. TxDOT’s Plea to the Jurisdiction...............

.... .........................6
C. Additional jurisdiction challenges...............

.... .........................8
D. Bhakta’s claims were properly dismissed.........

.... .....................9 II. Bhakta’s inverse condemnation claim was properly dismissed...

.... .........9
A. TxDOT did not have the requisite intent to support a valid takings claim...

.................................................................. ......10
B. The jurisdictional evidence does not contain a fact issue regarding TxDOT’s intent.......................................

......... ........... ...................... ..15iv

C. Any alleged recurrence of flooding is not probative of TxDOT’s intent......

................................................................ ......17
1. Gragg’s r ecurre nce r equirement...

..... ........................ .. ......17
2. Kopplow and Gragg are factually distinguishable.........

..... ......18
3. Bhakta cannot impute intent to TxDOT through recurrence

... ...... 20
D. Bhakta’s allegations against TxDOT ad ditionally fail the public use requirement necessary for a valid t akings claim

......... .............. ... 21
E. TxDOT’s alleged actions did not cause Bhakta’s property damage...

.................................................................... ..22
F. The jurisdictional defects in Bhakta’s claims are incurable by further amendment..................

. .................................................23
III. Bhakta cannot establish a valid waiver of immunity under the Texas Tort Claims A ct.....................

........................... .................. . ........25
A. TxDOT did not operate the alleged motorized equipment...

... .....26
B. Bhakta cannot satisfy Section 101 .021’s causal nexus requirement...

................................................... ......... 30
IV. Bhakta cannot as sert his nuisance claim in the absence of a valid waiver of immunity......

................ .......................... ....................... ..............................33 PRAYER..................

.............................. ........................... ...........3 4 CERTIFICATE OF COMPLIANCE.........

................................. ... .........35 CERTIFICATE OF SERVICE..................

........................... ................35v INDEX OF AUTHORITIES Cases Page Ahart v. Tex. Dep’t of Transp., No. 14

- 05

- 00027

- C V, 2006 WL 2167223 (Tex. App.

— Houston [14th Dist.] Aug. 1, 2006, pet. denied) (mem. op.)

... . .. 15, 16 AN Collision Ctr. of Addison, Inc. v. Town of Addison , 310 S.W.3d 191 (Tex. App.

— Dallas 2010, no p et.)

................................. . ..................21, 24 Bell v. City of Dall. , 146 S.W.3d 819 (Tex. App.

- Dallas 2004, no pet.) .......10, 25 Bhakta v. Tex. Dep’t of Transp ., No. 04

- 14

- 00063

- CV, 2014 WL 1499810 (Tex. App.

— San Antonio Apr. 16, 2014, no pet.) (mem. op.) (per curiam)...

... ..v, 3 Bland Indep. Sch. Dist . v. Blue, 34 S.W.3d 547 (Tex. 2 000)

.................. .. ........8 City of Dall. v. Blanton , 200 S.W.3d 266 (Tex. App.

— Dallas 2006, no pet.)

. ... ...23 Cenizo Corp. v. City of Donna , No. 13

- 12

- 00308

- CV, 2013 WL 1800270 (Tex. App.

— Corpus Christi Apr. 25, 2013, no pet.)

......... ......... ... ... .. ......22, 23 Harris County Flood Control Dist. v. Kerr , 13

- 0303, 2015 WL 3641517 (Tex. June 12, 2015)

..................... ... . ... ... .. ....... ...........14 Church v. City of Alvin , No. 01

- 13

- 00865

- CV, 2015 WL 3916708 (Tex. App.

— Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.)

... .. 3, 14, 29 City of Arlington v. State Farm Lloyds , 145 S.W.3d 165 (Tex. 2004)

............ ... .11 City of Borger v. Garcia , 290 S.W.3d 325 (Tex. App.

— Amarillo 2009, pet . denied)

...... ........................ . ............22, 25 City of Dall. v. Hillis, 308 S.W.3d 526 (Tex. App.

— Dallas 2010, pet. d enied)

... 31 City of Dall. v. Jennings , 142 S.W.3d 310 (Tex. 2004)

......... ................... ....... passim City of El Paso v. Ramirez , 349 S.W.3d 181 (Te x. App.

— El Paso 2011, no pet. )

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 24 City of Hous

. v. Ranjel , 407 S.W.3d 880 (Tex. App.

— Houston [14th Dist.] 2013, no pet.)

...... .. ... .. ... ... ... .........27, 28 , 29 City of Keller v. Hall , 433 S.W.3d 708 (Tex. App.

— Fort Worth 2014 , pet

. denied )

... ... ... ... ... ........................ . ...... 2 5vi

City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005)

.................. .. ..........11, 21 City of Leon Valley v. Wm. Rancher Estates Joint Venture , No. 04

- 14

- 00542

- CV, 2015 WL 2405475 (Tex. Ap p.

— San Antonio May 20, 2015, no p et.)

... ... ... ........8 City of McKinney v. Hank’s Rest. Group, L.P. , 412 S.W.3d 102 (Tex. App.

— Dallas 2013, no pet.)

............ ...... ... ... ... ... ... .. .......................3 City of Midlothian v. Black , 271 S.W.3d 79 1 (Tex. App.

— Waco 2008, no pet. )

... 14 City of San Antonio v. De Miguel , 3 11 S.W.3d 22 (Tex. App.

— San Antonio 2010, no pet)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. . ...6 City of San Antonio v. Pollock , 284 S.W.3d 809 (Tex. 2009)

... ..... 10, 11, 13, 16, 21 City of Tyler v. Likes , 962 S.W.2d 489 (Tex. 1997)

... .............. .......................24 City of Van Alstyne v. Young, 146 S.W.3d 846 ( Tex. App.

— Dallas 2004, no pet.)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 25 Dall

. Area Rapid Transit v. Whitley , 104 S.W.3d 540 (Tex. 2003)

... ............6, 30 Dall

. Cnty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339 (Tex. 1998)

......... ... ... ... ... ... . ............ .. ...... ... ..........3 0, 31 Dall. Cnty. v. Logan, 407 S.W.3d 745 (Tex. 2013)

...... .... . ..............................8 Ector Cnty. v . Breedlove , 168 S.W.3d 864 (Tex. App.

— Eastland 2004, no pet.)

..... .......................................................... .. 31, 32 EPGT Texas Pipeline, L.P. v. Harris Cnty. Flood Control Dist ., 176 S.W.3d 330 (Tex. App.

— Houston [1st Dist.] 2004, pet. dis m’d)

............... .. ... ............28, 29 Evatt v. Texas Dept. of Transp. , No. 11

- 05

- 00031

- CV, 2006 WL 1349352 (Tex. App.

— Eastland May 18, 2006, pet. denied) (mem. op.)

... .. ...............13, 17 Galveston Racquet Club, Inc. v. City of Galveston , 178 S.W.3d 167 ( Tex. App.

— Ho uston [1st Dist.] 2005, no pet.)

............ . ... ........................31 General Serv s. Comm’n v. Little

- Tex Insulation Co., Inc. , 39 S.W.3d 591 (Tex. 2001)

... ... ... ... ... .. ......................................10, 13 , 15 Hearts Bluff Game Ranch, Inc. v. State , 381 S.W.3d 468 (Tex. 2012)

...... ...... ......6 How ard v. City of Kerrville, 75 S.W.3d 112 (Tex. App.

— San Antonio 2002, pet. denied)

... ... ... ... ... ... ... ... ... ... ... ... ... 17, 18vii

Kopplow Dev., Inc. v. City of San Antonio , 399 S.W.3d 532 (Tex. 2013)

. .. .7, 17

– 1 9 Karnes City v. Kendall , 172 S.W.3d 624 (Tex. App

. — S an Antonio 2005, pet. d e nied)

...... ... ... ... ... ... . ......................24 LeLeaux v. Hamshire

– Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) ......27 Rusk State Hosp. v . Black, 392 S.W.3d 88 (Tex. 2012)

...... ... ......................8, 9 Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922 (Tex. 2015)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .........26 San Antonio Water Sys. v. Overby , 429 S.W.3d 716 (Tex. App.

— San Antonio 2014, no pet.)

......... .. ... . ..............2, 12

- 15, 30

– 32 , 34 Slo an Creek II, L.L.C. v. N. Tex. Tollway Auth., No. 05

- 14

- 01456

- CV, 2015 WL 5093318 (Tex. App.

— Dallas Aug. 28, 2015, no. pet. h.)

... . .16, 17, 19, 21 State v. Agnew , No. 13

- 05

- 00143

- CV, 2006 WL 1644678 (Tex. App.

— Corpus Christi June 15, 2006, no pet.) (mem. op.)

............. ...............13 Tarrant Regional Water District v. Gragg, 151 S.W.3d 546 (Tex. 2004)

... .....17

– 19 Teague v. City of Dall

. , 344 S.W.3d 434 (Tex. App.

— Dallas 2011, pet. denied)

. .30 Tex. Ass’n of Bus. v. Tex. Air Control Bd ., 852 S.W.2d 440 (Tex. 1993)

...... ... .....6 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)

... 7, 11, 23 Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162 (Tex. 2013)

... ... .. .. ............................................................. .............6 Tex. Dep’t of Transp. v. City of Sunset Valley , 146 S.W.3d 637 (Tex. 2004)

... ..6, 33 Tex. Highway Dep’t v. Weber, 219 S.W.2d 70 (1949)

...... ... ... . ... .. ............21, 22 Tex. Natural Res. Conservation Comm’n v. White , 46 S.W.3d 864 (Tex. 200 0)

.. ..30 Tex. Parks & Wildlife Dep ’ t v. E.E. Lowrey Realty, Ltd. , 235 S.W.3d 692 (Tex. 2007 )

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 25 Toomey v. Tex. Dep ’ t of Transp. , 01

- 05

- 00749

- CV, 2007 WL 1153035 (Tex. App.

— Houston [1st Dist.] Apr. 19, 2007, no p et

........................ .. ......18viii

Statutes Tex. Const. art. I, § 17

............ .. ..........................................................9 Tex. Civ. Prac. & Rem. Code § 101.021(1)

............ ... .. ... ... ... ... ... ... ... . .. passim Tex. Civ. Prac. & Rem. Code § 101.001(2)

............ ... ........................... ... .. 27ix STATEMENT OF CASE Nature of the Case: This action arises from flood water damage to Appellant Hetul Bhakta’s ( “ Bhatka ” ) property, for which Bhatka filed suit against the Texas Department of Transportation ( “ TxDOT ” ) and a second defendant who is not a party to this appeal, asserting claims for nuisance, inverse co ndemnation, a nd negligent operation of motor

driven equipment. CR 78

– 85. Trial Court: The Honorable Richard C. Terrell, Presiding Judge of the 79th Judicial District Court of Brooks County, Texas. Trial Court Disposition: The trial court granted TxDOT’s First Amended Plea to the Jurisdiction, and dismissed TxDOT as to all of Bhakta ’ s claims. CR 117

. Prior Court of Appeals Proceedings: Following the trial court’s denial of Bhakta ’ s Motion for Reconsideration and Rehearing, Bhakta filed an accelerate d interlocutory appeal of the granting of TxDOT’s First Amended Plea to this Court. TxDOT filed a Motion to Dismiss for Want of Jurisdiction, asserting Bhakta failed to file a timely notice of appeal. Prior Court of Appeals Disposition: Dismissed. Bhakta v. Tex. Dep’t of Transp ., No. 04

- 14

- 00063

- CV, 2014 WL 1499810 (Tex. App.

— San Antonio Apr. 16, 2014, no pet.) (mem. o p.) (per curiam).x ISSUE PRESENTED Whether the trial court properly granted TxDOT’s First Amended Plea to the
J urisdiction

. 1

1 TxDOT notes that it is difficult to match the issues presented by Bhakta with the arguments in the body of Bhakta’s brief, therefore TxDOT presents the sole is sue in this case

– whether the trial court properly granted TxDOT’s First Amended Plea to the Jurisdiction

– and addresses what it deems to be the issues Bhakta has attempted to raise, as well as other pertinent jurisdictional issues.1

TO THE HONORABLE COURT OF APPEALS: Appellee, t he Texas Department of Transportation (“TxDOT”) , requests affirmance of the trial court’s granting of its First Amended Plea to the Jurisdiction.

STA T EMENT OF THE FACTS
I. Factual b ackground . Appellant Het ul Bhakta (“Bhakta”) operates a Budget Inn located at 1033 N. U.S. Hwy 281 in Falfurrias, Texas. CR 78. Bhakta alleges that his prope rty was damaged by flooding on three separate occasions

— April 16, 2010, May 25, 2010, and an unspecified date in 2012. 2 CR 80. Bhakta contends this flooding was the
result of increased storm

- water runoff that in turn resulted from construction work on Highway 2 81 (the “Project”). CR 80

– 81.
TxDOT was responsible for the design of the Project up to its “letting,” or the point upon which contractors bid for the award of the contract to perform the actual construction work. CR 139

– 40. Ballenger Construction Company (“Ballenger”) was

2 To date, Bhakta ha s not been able to articulate when the alleged third flooding incident purportedly occurred (the Third

- Amended Petition merely states “in 2012,” while Appellant’s brief states “in June of 2012”). CR 80; Appellant ’s Br. at 9. No evidence exists in the reco rd regarding the date of the alleged 2012 flood event. For example, Defendant Ballenger produced evidence of Federal Emergency Management Agency (“FEMA”) “Proof of Loss” forms submitted by Bhakta with regard to the April and May 2010 flood events, and in the final judgment, subsequently agreed to pay for any property damage from the flood events to the Budget Inn not covered by FEMA, without reference to the number of flood events agreed to have occurred. 3rd Supp CR 66, 88

– 185; 1st Supp CR 6. Nonetheless , as discussed in detail below, whether or when the third flooding event occurred is irrelevant to the determination of the issues before this Court, and this brief assumes arguendo that a third flood did occur in June of 2012.2

awarded the Project , and either performed the construction work at issue or subcontracted out certain portions of the work. 3 CR 36, 41

– 47, 172, 178

– 79. Bhakta’s asserted claims all relate to the storm

- water drainage system on the Project. CR 81

– 83. The TxDOT plans and specifications for the Project called for the contractor to maintain a drainage system that conveyed excess rainwater to an outfall or discharge point. CR 153

– 54, 172. Sp ecifically, the TxDOT plans required an unbroken sequencing between the highway’s old drainage system and the Project’s new drainage system, as a continuous series of pipes was needed in order to properly convey the water from the highway to the designated outfall point. CR
162

– 64, 171

– 72. However, despite its contractual responsibility to do so , Ballenger failed to maintain the proper conne ctivity in the drainage system during the Project’s
construction

. CR 156, 165, 161. The missing connections in the d rainage system caused, at least in part, the flooding of Bhakta’s property. CR 161. Other factors may have included a combination of the Budget Inn’s location in a low

- lying area close to the highway
and severe storms that produced an extraordinary amount of rainfall. CR 166

– 67,

3 Ballenger named Leal Cons truction, Inc. (“Leal”) as a third

- party defendant in the underlying suit. CR 35

– 47. While the contract between Ballenger and Leal appears to contemplate the work at issue in this appeal, it is unclear from the record whether it was Leal or Ballenger who actually performed the work, as Leal ceased work on the Project at some point before its completion. CR 213. F or consistency with Bhakta’s allegations, this brief will refer to the construction work performed as Ballenger’s.3

224. After becoming aware of the 2010 flood events, TxDOT instructed Ballenger to reestablish adequate drainage in the area. CR 223.

II. Relevant p roced ural h istory . Bhakta filed suit against both TxDOT and Ballenger asserting claims for inverse condemnation, nuisance, and negligence. CR 7

– 11. Bhakta received four pleading opportunities , culminating in the filing of his Third Amended Petition on October 17, 2013. 4 CR 78. TxDOT filed its First Amended Plea to the Jurisdiction on Sept ember 20, 2013 (the “Plea”) , CR 69, and t he trial court granted TxDOT ’s Plea on October 21, 2013, CR 117. After the trial court denied Bhakta’s Motion for Reconsideration and Rehearing, Bhakta filed an accelerated interlocutory appeal of the granting of
T xDOT’s Plea to this Court. However, Bhakta failed to timely file its notice of interlocutory appeal and the interlocutory appeal was dismissed. See Bhakta v. Tex. Dep ’ t of Transp ., No. 04

- 14

- 00063

- CV, 2014 WL 1499810 (Tex. App.

— San Antonio Apr. 16, 2014, no pet.) (mem. op.). The case then proceeded in the trial

4 While the Third

- Amended Pet ition was filed after TxDOT ’s Plea, it is the live pleading for the purpose of this Court’s review, as it was filed before the trial court’s ruling , and counsel for Bhakta specifically referenced that petition during oral argument at the hearing on TxDOT ’s Plea. 7 RR 10

- 14. See, e.g., Church v. City of Alvin , No. 01

- 13

- 00865

- CV , 2015 WL 3916708, at *4 (Tex. App.

— Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.) (discussing whether live pleading at time of city’s plea or amended pleading filed four d ays before the hearing was operative pleading for review); City of McKinney v. Hank’s Rest. Group, L.P. , 412 S.W.3d 102, 110 (Tex. App.

— Dallas 2013, no pet.) (holding amended petition filed before trial court ruled on plea to the jurisdiction was live plea ding for purposes of plea).4

court against the second defendant, Ballenger, concluding in a settlement between Bhakta and Ballenger. 1st Supp CR 6

– 7. The agreed final judgment, signed on March 9, 2015, incorporated the trial court’s dismissal of Bhakta’s claims against TxDOT. 1st Supp CR 7. On March 30, 2015, Bhakta filed a notice of appeal of the final judgment with respect to TxDOT. CR 362

– 63.

SUMMARY OF THE ARGUM ENT While all of Bhakta’s asserted causes of action against TxDOT fail to allege a valid waiver of sovereign immunity on multiple grounds, one overarching fact is fatal to each of them

— this case involves nothing more than a contractor’s negligence. Bhakta properly pled and purs u ed a valid negligence claim agains t Ballenger in the trial court. N o amount of artful pleading , however, can turn that claim into claims for which TxDOT has waived sovereign immunity. First, Bhakta cannot allege or establish a v alid inverse condemnation claim for three distinct reasons: (1) TxDOT did not have the requisite intent to take his property; (2) Bhakta cannot meet the “public use” requirement for a takings claim; and (3) no intentional act of TxDOT caused Bhakta’s alleged property damage. Notably, u nder the heightened pleading standard set forth in City of Dall as v. Jennings , 142 S.W.3d 310 (Tex. 2004), Bhakta must allege that TxDOT knew the Project would cause the flooding of his property or knew that such flooding was substantially certain to result from the Project . He has not, and cannot, as the5

jurisdiction al evidence shows TxDOT in fact intended the opposite

— that the Project have a working and continuous storm

- water drainage system along Highway 281. Likewise, b ecause Bhakta cannot allege the diversion of water onto hi s property was intentional, he cannot meet the public use requirement, which distinguishes a negligence claim from an inverse condemnation claim . Lastly, Bhakta’s inverse
condemnation claim further fails because Bhakta has not pled, and cannot show, that any specific act by TxDOT caused his alleged property damage

. Next, Bhatka asserts a claim for negligence under Section 10 1 .021 of the Texas Tort Claims Act ( “ TTCA ” ) , which provides a limited waiver of sovereign immunity when property damage arises “from the operat ion or use of a motor

- driven vehicle or motor

- driven equipment.” Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). While Bhakta speculates his property damage must naturally be the result of th e use of motor

- driven equipment, this claim fails two separate requir ements of Section 101, as (1) no governmental employee was operating the alleged equipment at issue, and (2) Bhakta’s allegations fail § 101.021’s causal nexus requirement, since the alleged equipment at most furnished the condition that made Bhakta’s inju ry possible. Finally, Bhakta’s nuisance claim against TxDOT is dependent on a valid waiver o f immunity from another source, as nuisance liability of a governmental entity arises only when immunity is clearly and unambiguously waived by statute or6

when the nuisance rises to the level of a constitutional taking. As Bhakta cannot allege a valid takings claim or waiver of immunity under Section 101 of the TTCA, TxDOT retains immunity from Bhakta’s nuisance claim. ARGUMENT
I. Scope and s tandard of r eview . A. Sovere ign i mmunity . “State agencies like TxDOT are immune from liability in Texas unless the Legislature waives that immunity.” Tex. Dep ’ t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 641 (Tex. 2004). “In a suit against a governmental unit, the plaint iff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dall. Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003). T he burden is on the plaintiff to allege facts affirmatively demonstrating the tria l court’s subject matte r jurisdiction over the case. Tex. Ass’n of Bus. v. Tex. Air Control Bd ., 852 S.W.2 d 440, 443

– 44, 446 (Tex. 1993). Whether a court has subject matter jurisdiction is a question of law that is reviewed de novo

. Tex. Dep’t of Transp. v . A.P.I. Pipe & Supply, LLC , 397 S.W.3d 162, 166 (Tex. 2013); Hearts Bluff Game Ranch, Inc. v. State , 381 S.W.3d 468, 476 (Tex. 2012).

B. TxDOT’s Plea to the Jurisdiction .

“ Sovereign immunity deprives a trial court of subject

- matter jurisdiction for lawsuits in which the governmental entity has been sued unless it consents to suit and, thus, sovereign immunity is properly asserted in a plea to the jurisdiction. ” City7

of San Antonio v. De Miguel , 311 S.W.3d 22, 25 (Tex. App.

— San Antonio 2010, no pet.) (citing Tex. Dep’ t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224

– 26 (Tex. 2004) )

. In a plea to the jurisdiction, a party may challenge the pleadi ngs, the

ex istence of jurisdictional facts, or both. Miranda, 133 S.W.3d at 226

– 27. If a p lea to the jurisdiction challenges the pleadings, the court must determine whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction. Id. at 227. “If the pleadings affirmatively negate the existence of jurisdiction, th en a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the court must consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. Id. Where the jurisdictional challenge implicates the merits of the plaintiff’s cause of action, the court must review the relevant evidence to see if a fact issue exists. Id. If the relevant eviden ce is undisputed or fails to raise a fact question on the jurisdictional issue, the court must rule on the plea to the jurisdiction as a matter of law. Id. The standard of review in these situations “generally mirrors” the summary judgment standard. Id a t 228.
TxD OT ’s Plea to the Jurisdiction challenged the sufficiency of Bhakta’s pleadings and the trial court reviewed the existence of jurisdictional facts. CR 69

– 77; 4 RR 23

– 5 RR 13; 1st Supp CR 7 (“The Court after considering the motion and8

arguments of counsel, and evidence admitted granted TxDOTs [sic] Plea to the Jurisdiction and by interlocutory Order dismissed the Plaintiff’s claims against TxDOT” ) (emphasis added). 5

C. Additional jurisdictional c hallenges . Along with those identified in its Plea, TxDOT also raises several additional jurisdictional challenges for the first time on appeal. See Appellee’s Br. at Sections
II. D , II. E , III. A. Courts of appeal have been directed to address such additional grounds even when raised for the first time in an appeal. See Dall

. Cnty. v. Logan, 407 S.W.3d 745, 746 (Tex. 2013) ; City of Leon Valley v. Wm. Rancher Estates Joint
Venture , No. 04

- 14

- 00542

- CV , 2015 WL 2405475, at *2 (Tex. App.

— San Antonio May 20, 2015, no pet.) (mem. op

. ) . When doing so, the appellate court applies a modified standard of review. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). If the pleadings and record neither demonstrate jurisdiction nor conclusively negate it, the governmental entity must show either that “the plaintiff failed t o show jurisdiction despite having had full and fair opportunity in the trial court to develop the record and amend the pleadings or, if such opportunity was not given, that the plaintiff would be unable to show the existence of jurisdiction if the cause w ere remanded to the trial court and such opportunity afforded. ” Id

. “ If the governmental

5 See generally Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (A “court deciding a plea to the jurisdiction is not required to look solely to the [plaintiff’s] pleadings but may consider evidence and must do s o when necessary to resolve the jurisdictional issues raised.” ).9

entity meets this burden, then the appellate court should dismiss the plaintiff’ s case.” Id. Otherwise, the appellate court must remand the case to the trial court f or further proceedings. Id.

D. Bhakta’s claims were properly dismissed. Despite four separate pleading attempts, including the filing of his Third Amended Petition after TxDOT’s First Amended Plea to the Jurisdiction, Bhakta failed to allege facts that wou ld support a valid w aiver of immunity against TxDOT. Bhakta was given a full and fair opportunity to develop the rec ord, and introduced jurisdictional evidence that included testimony from both a TxDOT engineer and Danny Bhakta, 6 in addition to other exhi bits. CR 93

- 116, 127

- 361 ; 2nd Supp CR 17

- 58. Moreover , Bhakta’s pleadings and the evidence submitted affirmatively negate the existence of jurisdiction, and reve al the jurisdictional defects in Bhakta’s claims are incurable through further amendment to hi s pleadings

.
II. Bhakta ’s inverse condemnation claim was properly d ismissed. The Texas Constitution waives sovereign immunity when a landowner’s property is “taken, damaged or destroyed for or applied to public use without adequate compensation.” Tex. Const

. art

. I, § 17. 7 However, to invoke that waiver,

6 Danny Bhakta appears to be another member of the Appellant ’ s family involved with the Budget Inn. 2nd Supp CR 51. 7 The three distinct claims allowed by this section

— taking, damaging, and destruction of property

— are all commonly referred to as a “taking.” City of Dall. v. Jennings, 142 S.W.3d 310, 313 n. 2 (Tex. 2004).10

a plaintiff must plead a valid inverse condemnation claim. See Bell v. City of Dall. , 146 S.W.3d 819, 825 (Tex. App.

— Dallas 2004, no pet.) (“When a plaintiff does not allege a valid inverse condemnation claim, however, governmental immunity does apply and the trial court should grant a plea to the jurisdiction.”)

. To state a valid takings claim, Bhakta must allege that (1) TxDOT intentionally performed certain acts, (2) that resulted in a “taking” of its property, (3) for public use. General Ser v s. Comm’n v. Little

- Tex Insulation Co., Inc. , 39 S.W.3d 591, 598 (Tex. 2001). Moreover, even if a valid inverse condemnation claim is alleged, if there is no evidence to support the plaintiff’s allegations or th ose allegations are negated as a matter of law, then the government retains immunity from suit. See City of San Antonio v. Pollock , 284 S.W.3d 809, 821 (Tex. 2009) (“Since there was no evidence of a compensable taking, the City is immune from the Pollocks’ property damage claims.” ). Whether particular facts are enough to constitute a taking is a question of law. Little

- Tex , 39 S.W.3d at 598. Here, Bhakta cannot meet the intent, public use, and causation elements of a valid takings claim.

A. TxDOT did not hav e the requisite intent to support a valid takings claim . “Intent” is an element of an inverse condemnation claim. City of Dall. v. Jennings , 142 S.W.3d 310, 314 (Tex. 2004). The Texas Supreme Court in Jennings11

set forth the requisite standard for evalua ting a governmental entity’s intent , holding

a court may find that a governmental entity acted intentionally if the entity: (1) knows that a specific act is causing identifiable harm; or (2) knows that the specified property damage is substantially certain to result from an authorized government action

— that is, that the damage is necessarily an incident to, or necessarily a consequential result of the government’s action. Jennings , 142 S.W.3d at 314 . T he Jennings standard is a heightened plea ding standard of intent, and mere intent to operate a public work is insufficient to support an inverse condemnation claim. City of Arlington v. State Farm Lloyds , 145 S.W.3d 165, 168 (Tex. 2004) (recognizing that the mere intentional operation of a sewer system is insufficient to support liability for inverse condemnation claims). Further, i t is not enough to claim that the government should have known that damage was substantially certain

— actual knowledge is required. City of Keller v. Wilson , 168 S .W.3d 802, 829 (Tex. 2005). Importantly, a government entity’s knowledge must be determined as of the time it acted, not with benefit of hindsight. Pollock , 284 S.W.2d at 821. Finally , a governmental entity’s awareness of the mere possibility of damage i s no evidence of intent. Id . at 821. Therefore, under Jennings , Bhakta must allege that TxDOT knew the Project would cause the flooding of his property or knew that such flooding was substantially certain to result from the Project

. Bhakta , however, has m erely alleged12

that TxDOT intended to build a road, the building of which damaged his property. The specific factual allegations in Bhakta’s Third Amended Petition regarding TxDOT’s intent are:

 “TxDOT intentionally performed certain acts in the design of the flood control system for the roadway. . . ” CR 80.

 “While TxDOT intended for Ballenger to make the alter ations [to the drainage system] they were done in such a way that the system no long er protect Plaintiff’s proper t y. . . ” CR 80.

 “TxDOT’s intentional pla n for th e storm and waste water control. . . ” CR 80.
These allegations are insufficient to support a valid takings claim, and in fact,

are analogous to the allegations in a litany of cases where courts have granted or affirmed pleas to the jurisdiction. For example, in Jennings , the landowners brought a takings claim against the city after the city unclogged a sewer main , which resulted in raw sewage flood ing their home. 142 S.W.3d at 314. The landowners asserted that “because the city intended to unclog a backup, and because this action resulted in the sewage flood, the City should be liable for the damage caused by the flood.”
Id . at 313. The Court disagreed, holding there was no evidence the City knew that flooding would occur when it unclogged the sewer line, nor was that evidence that the act of unclogging a sewer was substantially certain to lead to flood damage. Id

. at 315.13

T his c ourt also addressed intent allegations comparable to Bhakta’s in San Antonio Water Sys tem v. Overby , 429 S.W.3d 716, 720

– 21 (Tex. App.

— San Antonio 2014, no pet.) . There, the plaintiffs alleged the city knew the manner in which it maintained and graded a sewer system in a nearby alley had and would cause flooding to their property. The court held that evidence of the city’s k nowledge the alley’s grade could cause water from the alley to flow onto the plaintiffs’ property during a heavy rain was not evidence of the city’s intent to damage their property.
Id at 721. Instead , the court explained that because the rain water migra tion to the plaintiffs’ property was preventable, it was “not necessarily an incident to, or necessarily a consequential result” of the city’s maintaining the sewer system, and accordingly there was no evidence the City intended to damage the property. Id

. (citing Pollock , 284 S.W.3d at 821 ).
M ultiple other courts have also dismissed intent allegations similar to Bhakta’s. See Evatt v. Tex. Dep ’ t of Transp. , No. 11

- 05

- 00031

- CV , 2006 WL 1349352 (Tex. App.

— Eastland May 18, 2006, pet. denied) (mem. op.) (lan downers ’ allegation that TxDOT intentionally placed concrete barriers on top of adjacent highway during construction project was insufficient to allege that TxDOT either knew or was substantially certain that their homes would flood as a result of the

cons truction methods utilized by the TxDOT); State v. Agnew , No. 13

- 05

- 00143

- CV , 2006 WL 1644678 (Tex. App.

— Corpus Christi June 15, 2006, no pet.) (mem.14

op.) (claim for flood damage arising from construction of state highway failed to allege TxDOT kne w that flooding was substantially certa in to occur from construction); Church v. City of Alvin , No. 01

- 13

- 00865

- CV , 2015 WL 3916708 (Tex. App.

— Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.) (no evidence of intent to support inverse conde mnation claims that the City’s replacement of a culvert and reconfiguration of the drainage in connection with a bridge project caused increased flooding on property); City of Midlothian v. Black , 271 S.W.3d 791 (Tex. App.

—

Waco 2008, no pet.) (landowner fa iled to plead a valid inverse condemnation claim when petition merely alleged that city’s acts “in evaluating, approving, and inspecting” were intentional, without any allegation that city knew that landowner’s damage was necessarily incident to, or nec essarily a consequential result of, the city’s action.)

. 8 Here, Bhatka’s takings claim rests on the same faulty premise as that of the plaintiff s ’ in Jennings and Overby

— that TxDOT intended to build a road, the building of th e road resulted in flooding t o his property, and therefore Tx DOT should be liable for the damage. See , e.g., Appellant ’ s Br

. at 25 (“Appellee has offered nothing to contradict Bhakta’s assertions that his motel property was flooded and the

8 Cf

. Harris C

nty
. Flood Control Dist. v. Kerr , No. 13

- 0303, 2015 WL 3641517 (Tex. June 12, 2015 , M ot. for r eh ’ g filed. ) (concluding that homeowners raised fact issue concerning whether government entities knew that their actions caused flooding where some evidence existed that (1) entit ies received engineering advice explaining that additional development would cause damaging flooding , and (2) entities knew that development would lead to damaging flooding).15

flooding caused damage to his motel.”). Thi s assertion is insufficient to support the intent element of a valid takings claim. Bhakta does not, and cannot, plead any factual allegation supporting that TxDOT knew or was substantially certain that any flooding would result from the implementation of the Project, or that such flooding would damage Bhatka’s property. F looding is not the necessary con sequence of building a highway , and Bhakta cannot show that the flooding of his property was necessarily incident to the Project. In fact, to do so, Bhak ta must claim Ballenger’s negligence was necessarily incident to the Project . Negligence is , by definition , entirely preventable, and Ballenger’s therefore was not necessarily incident to the Project or a necessary consequence of its design and letting. S ee Overby , 429 S.W.3d at 721.

B. The jurisdictional evidence does not contain a fact issue regarding TxDOT’s intent . Morevoer, Bhakta’s argument that the evidence submitted h as at least created
a fact issue necessitating remand is unavailing. Notably, i n Ahart v. Tex as Department of Transportation , No. 14

- 05

- 00027

- CV , 2 006 WL 2167223, at *4 (Tex. App.

— Houston [14th Dist.] Aug. 1, 2006, pet. denied) (mem. op.), the court
addressed jurisdictional evidence similar to that contained in the record in the present

case. Th ere, the landowners asserted a takings claim alleging that a TxDOT highway project blocked storm

- waters from flowing into a nearby drainage ditch in16

the manner they had before the project’s construction, resulting in the flooding of their homes. Id . at *1. The lando wners further asserted that TxDOT intentionally designed and constructed the drainage system for the highway project to handle the capacity of a five

- year storm event, the necessary consequence of which being that storms of a greater degree would inevitabl y flood their subdivision. Id . at *3.
T he landowners presented evidence of TxDOT’s intent based on the deposition testimony of Tx DOT’s engineer, who stated in relevant part that : (1) prior
to t he construction of the project, T xDOT was aware of the nearby d rainage ditch that was subsequently blocked; and (2) TxDOT understood that because t he storm sewers for the project were designed to handle a five

- year storm, an overflow condition could occur during a storm of greater magnitude. Id . at *4. 9
The court in Ahart held the testimony of the TxDOT engineer and landowner’s expert addressed only causation, not intent, and “[s]uch testimony does not raise a fact issue with regard t o whether TxDOT knew flooding . . . would result or that such flooding was substantially certain to result from the design and construction of [the highway] .” 10 Id

. In the same manner , the record here contains testimony from

9 The landowners additionally presented the testimony of their expert who testified the TxDOT storm sewer caused the flooding of their home. Id

. 10 “It is certainly necessary for an owner to establish cause in fact as a prerequisite to a claim for inverse condemnation.” Sloan Creek II, L.L.C. v. N. Tex

. Tollway Auth., No. 05

- 14

- 01456

- CV , 2015 WL 5093318, at *6 (Tex. App.

— Dallas Aug. 28, 2015, no. pet. h.) (citing Pollock , 284 S.W.3d at 821). “But cause in fact without meeting the Jennings standard of knowledge is not enough to prove a governmental entity’s intent as demonstrated by each of the supreme court’s opinions after Jennings where the standard of culpability of a governmental entity’s article I,17

TxDOT’s engineer and Danny Bhakta addressing the cause of Bhakta’s property damage ( the disconnects in the drainage sys tem ), but none supporting that TxDOT knew Bhakta’s property would flood or that such flooding was substantially certain to result from the design and construction of the Project.

C. Any alleged recurrence of flooding is not probative of TxDOT’s intent. Rely ing on Tarrant Regional Water District v. Gragg, 151 S.W.3d 546 (Tex. 2004) and Kopplow Dev elopment , Inc. v. City of San Antonio , 399 S.W.3d 532 (Tex. 2013), Bhakta ’s argument in support of his inverse condemnation claim primarily

as serts that because Bhakta has alleged the recurrence of flooding, he has alleged a valid takings claim

. Kopplow and Gragg , however, demonstrate that Bhakta’s recurrence argument is simply a red herring, and is not probative of the correct inquiry in this case

— whether TxDOT had the requisite intent at the time it designed the Project.

1. Gragg’s Recurrence Requirement “A ‘taking’ by flooding is a specific type of ‘taking.’” Howard v. City of Kerrville, 75 S.W.3d 112, 117 (Tex. App.

— San Antonio 2002, pet. den ied). As explained in Gragg , e stablishing a taking by flooding generally requires more than a single flood event. 151 S.W.3d at 555 ( “While nonrecurrent flooding may cause

section 17, taking or damage involving physical damage to property has been at issue.” Id . (listing cases).18

damage, a single flood event does not generally rise to the level of a taking.” ). 11 The Gragg c ourt more fully elaborated : In the case of flood

- water impacts, recurrence is a probative factor in determining the extent of the taking and whether it is necessarily incident to authorized government activity, and therefore sub stantially cert ain to occur . . . The recurrence requirement assures that the government is not held liable for taking property when a project’ s adverse impacts, and by implication its benefit to the public, are too temporal or speculative to warrant compensation. Id

. ; see also Kopplow , 399 S.W.3d at 537 (“ The focus of Gragg is that the government’ s negligent acts that result in an occasional flood do not benefit the public and cannot qualify as a taking.”)

.

2. Kopplow and Gragg are factually distinguishable

. While both Kopp low and Gragg allowed inverse condemnation claims under their respective facts , neither case h e ld that the recurrence of flooding by itself constitutes evidence of a governmental entity’ s intent , and in each case, the Court relied on other indicia of inten t in reaching its decision.
I n Gragg , the landowner operated a cattle ranch, which was historically subject to frequent flooding from a nearby river ( the gentle nature of which actually contributed to the property’s suitability for cattle

- ranching by inc reasing the land’ s

11 See also Evatt , 2006 WL 1349352 at *4 (“The Department contends that the homeowners cannot plead a takings claim in good fai th . . . [based] on the fact that only a single flooding event occurred. We agree

. ”); Toomey v. Tex

. Dep ’ t of Transp. , No. 01

- 05

- 00749

- CV , 2007 WL 1153035, at *4 (Tex. App.

— Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem. op.) (landowners could not demonstrate TxDOT had requisite intent when only one flooding event was alleged).19

fertility). Id . at 551. However, after the regional water district constructed a reservoir with minimal overflow capacity, the landowner presented evidence that the reservoir ’ s construction changed the nature of the flooding to the land , making i t more forceful and destructive, damaging the ranch. Id at 555. Therefore, r ather than basing its decision on merely the recurrent nature of the flooding

— which notably was present both before and after the reservoir’s construction

— the c ourt in Gragg upheld the trial court’s finding of a taking based on the fact that “the extensive damage the Gragg Ranch experienced was the inevitable result of the reservoir’s
construction and of its operation as intended .” Id . (emphasis added). 12 Kopplow is likewise factually distinguishable and does not support Bhakta’s contention that recurrence is a probative factor of TxDOT’s intent in the present

case , as t he issue before the Kopplow c ourt was whether the landowner’s inverse condemnation claim was premat ure because the property had not yet flooded . 399 S.W.3d at 533. There, the city planned a regional storm water detention facility, and knew the project would inundate portions of the landowner’s property, as well as
one other tract. Id . at 534. The city obtained a drainage easement for the other

12 Further, i n considering specific evidence of the government’s intent under the Jennings standard , the Gragg court relied on modeling by the government’s engineer during the project’s design tha t predicted flooding , the governmental entity’s own documentation of hundreds of releases of water in amounts that exceeded the flood capacity of the river, the recurrent flooding of the ranch following the releases of water , and an internal government mem orandum stating there was a need to release water in di fferent ways to avoid flooding. Sloan Creek II, 2015 WL 50933 18 at *6.20

affected tract, but was refused when it requested one on the property at issue. Id . at 537

– 538. The effect of the storm water detention facility was to prevent the landowner from developing his property as pl an ned unless it was filled to a n ew flood level, and the landowner brought an inverse condemnation claim seeking damages for the fill. Id . at 540. The Court held the landowner ’ s claim was not premature even though the property had yet to flood , stating “the claim is based on the thwarting of approved development, not flooding.” Id

. Accordingly, t he Court did not assess recurrence as an indicia of intent, stating: Here, we need not look to evidence of the frequency of flooding to deduce the government’s inte nt: the City knew the project would inundate part of Kopplow’s property before it ever began construction, prompting the City to seek a drainage easement from Kopplow. Id . at 537.

3. Bhakta cannot impute intent to TxDOT through recurrence. Bhatka’s argum ent in support of his inverse condemnation claim appears to rely exclusively on the faulty conclusion that because his property flooded three times, there was a taking. This ignores the Jennings intent requirement. As Bhakta admits, “TxDOT’s intent must be examined at the time it made its decision to construct the U.S. Highway 281 upgrade

. ” Appellant’s Br. at 23.21

The three alleged flooding events all occurred after TxDOT’s design of the Project, and were the result of Ballenger’s negligent construction w ork , as opposed to the Project’s design or intended operation. Bhakta therefore cannot show how the alleged fact his property flooded three times during Ballenger’s construction work has any probative bearing on whether TxDOT had the requisite intent to t ake his property at the time it originally designed the Project. See, e.g ., AN Collision Ctr. of Addison, Inc. v. Town of Addison , 310 S.W.3d 191, 196 (Tex. App.

— Dallas 2010, no pet.) (holding no evidence of intentional act by city despite its knowledge that “[s]ince at least 1992 . . . [the subject property] flooded every time there is a hard rain lasting more than 15 minutes.”). 13

D. Bhakta’s allegations against TxDOT additionally fail the public use requirement necessary for a valid takings claim . Because Bha kta cannot allege the diversion of water onto his property by TxDOT was intentional, he cannot meet the public use requirement necessary to state a valid takings claim. The public

- use requirement distinguishes a negligence claim from an inverse condemnati on claim. See Pollock, 284 S.W.3d at 820

– 21;

13 See also City of Keller v. Wilson , 168 S.W.3d 802, 830 (Tex. 2005) (“The missing piece in the evidence here is proof that the C ity knew the plans it approved were substantially certain to increase flooding on the Wilsons’ properties. While the City certainly knew that fact after the flooding started, the Wilsons never pleaded or submitted to the jury any takings theory other than the City’s initial approval.”); Sloan Creek II , 2015 WL 5093318 at *6 (denying taking claim relating to design and construction of drainage system and rejecting landowners reliance on Gragg to support assertion that “erosion subsequent to the design and co nstruction of the Tollway improvements is probative of NTTA’s and TxDOT’s knowledge at the time of design”).22

Jennings, 142 S.W.3d at 314. “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. ’” Jennings, 142 S.W.3d at 313 (quoting Tex. Highway Dep’ t v. Weber, 219 S.W.2d 70, 71 (1949)). The court in City of Borger
v. Garcia , 29 0 S.W.3d 325, 331

– 32 (Tex. App.

— Amarillo 2009, pet. denied) addressed an analogous situ ation, stating: If the City intended to divert surface waters onto appellees’ property to protect other homeowners, then appellees have a claim for a taking. On the other hand, if surface waters were not intentionally diverted to appellees’ property, then it cannot be said that appellees’ property was taken for a public use. Stated another way, assuming that there was, in fact, a diversion of surface waters onto appellees’ property, if such a diversion was not intended by the City, appellees would possess a claim for negligence, but would not be able to establish that the unintended diversion of surface waters onto their property was for a public use. (internal citations omitted). Because Bhakta at best has a negligence claim for the unintended diversion of water to his property, he cannot show his property was taken for a public use.

E. TxDOT’s alleged actions did not cause Bhakta’s property damage. Bhakta has not alleged any specific act taken by TxDOT other than its design of the Project. CR 80

– 83. Bha kta’s property damage, however, was not caus ed by the Project’s design or intended operation, but by Ballenger’s negligent construction. Jennings contemplates “a specific act . . . causing identifiable harm” as the necessary intentional act to form the basis o f a valid inverse condemnation claim.23

142 S.W. 3d at 314; see also Cenizo Corp. v. City of Donna , No. 13

- 12

- 00308

- CV , 2013 WL 1800270, at *3 (Tex. App.

— Corpus Christi Apr. 25, 2013, no pet.) (mem. op.) (discussing application of Jennings standard to an identifiable specific act). Bhakta seeks to gloss over the lack of any specific act by TxDOT that caused his property damage by simply lumping TxDOT and Ballenger together. See, e.g., CR
82 (“Defendant TxDOT and Ballenger Construction’s interference with the flow of surface waters . . . ”); CR 83 (“The Defendants have acted in tentionally and/or unreasonably . . . ”). However, i t is insufficient to allege that both TxDOT and
Ba llenger were involved with the P roject without identifying a specific intentional
act by TxDOT causing t he property damage at issue

. 14
A ccordingly, as TxDOT’s alleged (and only) act of designing the Project did not cause Bhakta’s property damage, it cannot form the basis of a valid inverse
condemnati on claim capable of waiving its immunity

.
F. The jurisdictional defects in Bhakta’s claims are incurable by further amendment . The jurisdictional evidence further show s that Bhakta cannot subsequently amend his pleadings to state a valid takings claim against TxDOT. For example,

14 “Merely designing the pleadings to track language in Jennings does not satisfy the standards established by Miranda because we review the pleadin gs as well as the evidence submitted below on the plea to the jurisdiction.” City of Dall

. v. Blanton , 200 S.W.3d 266, 273 (Tex. App.

— Dallas 2006, no pet.)24

even though Ballenger was an independ ent contractor, Bhakta’s Third Amended Petition seems to imply an allegation that TxDOT should be liable for Ballenger’s negligent construction work under some type of agency theory. See, e.g., CR 80 (“Ballenger Construction Company, the agent or the emplo yee or contractor of the
Te xas Department of Transportation . . . ”). Whether characterized as a cause of
action against TxDOT for the construction work itself, or an alleged failure to supervise Ballenger, further development of this allegation can only result in a negligence claim against TxDOT

— a claim for which Bhakta cannot show sovereign immunity has been waived. See City of Tyler v. Likes , 962 S.W.2d 489, 505 (Tex. 1997) (stating that mere negligence that contributes to property dama g e does not constitut e a taking). 15 Nor can Bhakta prevail on allegations that TxDOT failed to correct the Project’s drainage system between the first flood in May of 2010 and the alleged
third flood in 2012. “ A governmen tal entity’ s failure to act, even in the face of evidenc e that curative measures are necessary to prevent future damage, rise only to the level of a negligence claim, and acts of mere negligence will not support a taking claim.” City of El Paso v. Ramirez , 349 S.W.3d 181, 187 (Tex. App.

— El Paso 2011,

15 See also AN Collision , 310 S.W.3d at 196 (“The Texas Supreme Court has repeatedly held that acts of mere negligence will not support a taking claim.”); Karnes City v. Kendall , 172 S.W.3d 624, 629 (Tex. App.

— San Antonio 2005, pet. denied) (holding that even “gross negligence does not supply the requisite intent to sustain liability of a governmental entity for a constitutional takings claim”).25

no pet.) ( holding allegations city was aware of potential for overflow and subsequently failed to take measures to prevent the overflow did not to rise to the level of a claim for inverse condemnation

. ) 16 Finally, any allegation by Bhakta that TxDOT did not pr operly plan the Project similarly fails as a matter of law. See Garcia , 290 S.W.3d at 331 (“evidence that raises a fact issue in regard to the adequacy of the planning of the drainage system, at best, raises a fact issue as to whether the City was negligen t in its de sign of the drainage system”). Accordingly, the trial court properly dismissed all of Bhakta’s claims against TxDOT.

III. Bhakta cannot establish a valid waiver of immunity under the Texas Tort Claims Act. Bhakta next asserts a cause of action for ne gligence relating to the “operation of motorized driven equipment.” CR 81

– 82. He contends the Texas Tort Claims Act ( “ TTCA ”), S ection 101.021(1), waives sovereign immunity for this claim. See, e.g.,

16 See also City of Keller v. Hall , 433 S.W.3d 708, 727 (Tex. App.

— Fort Worth 2014 , pet. denied ) (city’s failure to comply with its master drainage plan in app roving a developer’s drainage plans did not show intent to cause flooding damage); AN Collision , 310 S.W.3d at 196 (“The evidence of Addison’s failure to implement a flood control plan shows, at best, a failure to correct a problem that Addison knew existe d. The alleged failure to act cannot be construed to be an intentional act or acts resulting in damage to or taking of Collision Center’s property.”); 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); Bell v. City of Dall

. , 146 S.W.3d 819, 825 (Tex. App.

— Dallas 2004, no pet.) (pleadings containing only allegations that damage was caused by negligent omissions and no allegations that city intentionally performed acts affirmatively negated takings claim).26

Tex

. Parks & Wildlife Dep ’ t v. E.E. Lowrey Realty, Ltd. , 235 S.W.3d 692, 694 (Tex. 2007) (“The Texas Tort Claims Act provides a limited waiver of sovereign immunity when property damage arose from the operation or use of a motor

- driven vehicle or
motor

- driven equipment.”) (internal quotations omitted). Specif ically, Texas Civil Practices and Remedies Code § 101.021 states: A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scop e 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;
The vehicle

- use requirement of this section is strictly construed. Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W. 3d 922, 927 (Tex. 2015). Here, Bhakta fails to establish a valid wa i v er of immunity under Section 101.021(1) for two separate reasons ; as (1) TxDOT did not operate the alleged
motor

- driven equipment, and (2) even if it had, an insufficient causal nexus exists between the operation of the alleged motor

- driven equipment and Bhakta’s property damage.27

A. TxDOT did not operate the alleged moto rized equipment. First, Bhakta must show that a government employee actually operated the
motor

- driven equipment that caused his injury. LeLeaux v. Hamshire

– Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992)

. The TTCA defines an “employee”

as:
a pe rson, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control

. Tex. Civ. Prac. & Rem. Code § 101.001(2) (emphasis added). This statutory definition “requires both control and paid employment to invoke the TTCA waiver of immunity.” City of Hous

. v. Ranjel , 407 S.W.3d 880, 890 (Tex. App.

— Houston [14th Dist.] 2013, no pet.). “The type of control necessary to establish employee
status for waiver

- of

- immunity purposes is control over the details of the operation

or use of the motor

- driven equipment or tangible personal property.” Id . (emphasis added). In the present case, the record does not establish who exactly operated the equipment at issue. 17 What it does establish

— and what Bhakta admits

— is that no TxDOT (i.e. government) employee ever operat ed the alleged motor

- driven

17 As previously noted, it is unclear from the record whether the motor

- driven equipment was operated by Ballenger or i t s subcontractor Leal

. CR 36, 41

– 47, 172, 178

– 79, 213.28

equipment that performed work on the drainage system. CR 81 (“The Plaintiff’s injury arose from the operation or use of a motor

- driven vehicle or motor

- driven equipment by Ballenger used to disconnect the . . . ” ) (emphasis added). Bhakta attempts to circumvent the fact that TxDOT did not perform the construction work in question by simply lumping TxDOT and Ballenger together, implying that Ballenger was the agent of TxDOT or performed the construction work on the drainage system at the direction of TxDOT. Bhakta’s unfounded allegations , however, cannot transform Ballenger or Leal’s construction workers into government employees under Texas law. 18 Here, the jurisdictional evidence shows that TxDOT at most merely retained control ov er the end results of the Project, and not t he daily operation of the motor

driven equipment. This is insufficient to support a waiver of immunity. See EPGT
Tex. Pipeline, L.P. v. Harris Cnty. Flood Control Dist ., 176 S.W.3d 330, 337 (Tex. App.

— Hous ton [ 1st Dist.] 2004, pet. d ism’ d) (“These contract provisions . . . indicate control over the general requirements of the projects, and its proper completion, but do not show control over the details of Ramex’s work with regard to Ramex employees use of motor

- dr iven vehicles

— the standard for determining whether a party is an employee or independent contractor within the scope of section

18 “When the material underlying facts are not in dispute and can give rise to only one reasonable conclusi on, the question whether a worker is an employee or an independent contractor is a question of law.” Ranjel , 407 S.W.3d at 890.29

101.021.”); Ranjel , 407 S.W.3d at 891

– 92 (trial court erred in denying plea when jurisdictional evidence established City of Hou ston contracted with company to operate and maintain airport train system that city owned, and city merely controlled end result of system’s operation and maintenance). Additionally, the fact that TxDOT designed the overall Project is insufficient
to con vert the workers of a construction contractor into its governmental employee s . See EPGT Tex. Pipeline, L.P., 176 S.W.3d at 337 (“evidence that HCFCD participated in the construction plans and specifications, and made inspections as to the completion of the work according to the plans . . . does not create a fact issue that HCFCD had a right to control, or did control, the details of Ramex’s work with respect to the operation of a motor

- driven vehicle, the only type of activity for which HCFCD waives its immunit y in tort.”). Accordingly, Bhakta has not alleged, and the evidence does not show, facts establishing Section 101.021’s requirement that a government employee operate the
motor

- driven equipment in question. See City of Alvin , 2015 WL 3916708, at *8 (“Bec ause the summary

-

judgment record contains no evidence that a City employee operated motor

- driven equipment in connection with the bridge project, we hold that the trial court properly granted the City’ s jurisdictional plea on Church’s claim under
the Texas Tort Claims Act.”).30

B. Bhakta can not satisfy Secton 101.021’s caus al nexus requirement, as the alleged motorized equipment at most furnished a condition that made Bhakta’s injury possible. Even assuming arguendo that a TxDOT employee had operated the alleged
motor

- driven equipment, Bhakta still would not be able to establish a valid waiver of immunity under the TTCA. To demonstrate a waiver under Section 101.021(1), a plaintiff must show a nexus between the employee’s use of the vehicle and the injuries sust ained. Dall

. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542

– 43 (Tex. 2003)

. A causal nexus means that “the [vehicle]’s use must have actually caused the injury.” Id. at 543 (quoting Tex. Natural Res. Conservation Comm’ n v. White, 46 S.W.3d 864, 869 (Tex. 2001) ). The operation or use of a motor vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.” Whitley, 104 S.W.3d at 543 (citing Dall

. Cnty. Mental Health & Mental Retardation v. Bossley , 968 S.W.2d 339, 343 (Tex. 1998) ); see also Teague v. City of Dall. , 344 S.W.3d 434, 439 (Tex. App.

— Dallas 2011, pet. denied) (“Thus, the causal nexus requires more than mere involvement of the property; the vehicle’s use must have actually caused the injury. ”)

. Additionally 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 the31

condition that made the effect possible.” City of Dall. v. Hillis, 308 S.W.3d 526, 532 (Tex. App.

— Dallas 2010, pet. denied) (citing Bossley, 968 S.W.2d at 343). Claims such as Bhakta’s involving negligent construction work that later

cause s flood damage do not fall within Section 101.021(1)’s waiver of i mmunity. For example, in San Antonio Water Sys. v. Overby , 429 S.W.3d 716, 722 (Tex. App.

— San Antonio 2014, no pet.), the landowners introduced evidence showing that the governmental entity used motor

- driven equipment to maintain an alley that sometimes f

looded their yard with rainwater and sewage. Th is court held: The evidence conclusively proves that it was not SAWS’s use of motor

- driven equipment to excavate, repair, and refill the alley that damaged the Overbys’ property. Rather, it was the condition of the alley that led to their damage, and a use of motor

- driven equipment that results in a condition that causes an injury is not a sufficient nexus. Id

. Similarly, in Ector County v. Breedlove , the plaintiffs sued Ector County after their home was da maged by flooding following heavy rains, alleging that the “[county] employees’ negligent operation and use of motor

- driven vehicles or
motor

- driven equipment proximately caused” the flood damage because the county’s nearby “road and ditch work” and culver t installations w ere negligent. 168 S.W.3d 864, 865

– 66 (Tex. App.

— Eastland 2004, no pet.). The court held that the use of the motor

- driven equipment did not cause the plaintiff’s injury within the meaning of the waiver language in S ection 101.021(1)(A), sta ting “ although the32

[plaintiffs] attempted to bring their claim within the waiver of Section 101.021(1)(A) by phrasing their claim in terms of [the county’s] ‘use’ of motor

- driven equipment, [the county’s] use of motor

- driven equipment only furnished the co ndition

— the increased grade and misplacement of culverts

— that caused the flooding of their home.” Id . at 867. See also Galveston Racquet Club, Inc. v. City of Galveston , 178 S.W.3d 167, 171 (Tex. App.

— Houston [1st Dist.] 2005, no pet.) (holding immuni ty was not waive d because City’ s use of water pump created condition that made injury possible, but did not directly cause water leak )

. Here, Bhakta argues that motor

- driven equipment by Ballenger was used to improperly disconnect the existing storm water control system, which led to the flooding of his property after heavy rains. Appellant’s Br. at 25. As in Ector County and Overby , the drainage system at issue here only furnished the condition that caused the flooding of Bhakta’s property after heavy sto rms. Bhakta does not allege that his property was damaged by contact with any motor

- driven equipment or that the water was deposited onto his property by motor

- driven equipment. Nor can
Bhakta attribute his property damage to any particular piece of moto r - driven equipment or a specific time this equipment caused his damages. As Bhakta cannot allege facts that show the required causal nexus between the use of any motor

- driven equipment and his property damage, TxDOT’s33

government al immunity has not been w aived, and the trial court correctly granted the plea to the jurisdiction on Bhakta’s negligence claim.

IV. Bhakta cannot assert his nuisance claim in the absence of a valid waiver of immunity . Bhakta also alleges a nuisance claim arising from the flooding of his property.
CR 82

– 83. T his cause of action , however, is dependent on his inverse condemnation claim, as Bhakta does not plead a separate waiver of sovereign immunity for his nuisance claim, and therefore can only sue for a nuisance that rises to the lev el of a constitutional taking.
N uisance liability of a governmental entity arises only when immunity is clearly and unambiguously waived by statute, or when the nuisance rises to the level of a constitutional taking. Jennings, 142 S.W.3d at 316 ; Tex. Dep’t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 644 (Tex. 2004) (holding TxDOT cannot be liable for damage resulting from its expansion of highway without a clear waiver of immunity and retained immunity from a nuisance claim w hen only basis that could potentially be asserted wa s for unconstitutional taking). Bhakta do es not allege any waiver of immunity other than the takings clause

. CR at 82

– 83 , Appellant’s Br. at 2 2

– 25, 24 (“Plaintiff would show that he has properly pleaded a takings claim as part of his allegations that the Defendant’s34

created nuisance which damaged his property”). 19 F or the reasons discussed above, Bhakta has not pled and cannot establish a valid takings claim

. Consequently,
TxDOT retains immunity fr om Bhakta ’ s nuisance cause of action , and the trial court properly granted the plea to the jurisdiction as to this claim.
PRAYER For all the reasons stated herein, the Texas Department of Transportation asks this Court to affirm the trial court’s grant ing of its First Amended Plea to the Jurisdiction. The Texas Department of Transportation also requests this Court dismiss Bhakta ’ s claims with prejudice, as well as any such further relief, general or special, to which it may be justly entitled

. Respectfully submitted,
KEN PAXTON Att orney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation

19 Bhakta does not appear to plead or argue that the alleged waiver of immunity for his nuisance claim against TxDOT is alternati vely premised on his TTCA § 101.021 cause of action entitled “negligence in the operation of a motor driven equipment.” CR at 81

– 83, Appellant’s Br. at 22

– 25. However, as the pleadings are unclear, to the extent Bhakta may have also invoked a waiver under Section 101.021 with regard to his nuisance claim, the TTCA similarly f ails to provide a valid waiver for reasons discussed in the preceding section of this brief. Therefore, Bhakta’s nuisance claim fails regardless of whether Bhakta asserted a waiver un der § 101.021 or the takings clause. See, e.g., Overby , 429 S.W.3d at 721.35 RANDALL K. HILL Assistant Attorney General Chief, Transportation Division /S/ John Seth Johnson JOHN SETH JOHNSON State Bar No. 24083259 john.johnson@texasattorneygeneral.gov Assistant Attorney General P. O. Box 12548 Austin, Texas 78711

- 2548 512/ 463

- 2004; FAX 512/ 472

- 3855
A TTORNEYS FOR APPELLEE, THE TEXAS DEPARTMENT OF TRANSPORTATION

CERTIFICATE OF COMPLIANCE The undersigned certifies that the above computer

- generated document contains a total of 8,7 83 words, not counting the caption, identity of parties and counsel, table o f contents, index of authorities, statement of the case, statement of issue presented, signature, certificate of compliance, certificate of service, and appendix, as counted by the program creating said document. /S/ John Seth Johnson JOHN SETH JOHNSON Assistant Attorney General36 CERTIFICATE OF SERVICE This is to certify that on this day, September 23 , 2015, a true an d correct copy of the foregoing Brief of Appellee The Texas Department of Transportation has been s ent to the Court via electronic mail and has been sent as follows : Via E
- Service and E
- mail Aloysius Peter Thaddeus, Jr. The Law Offices of V. Gonzalez & Associates, PC. 121 N. 10 th Street McAllen, Texas 78501 Attorney for Appellant Hetul Bhakta d/b/a Budg et Inn /S/ John Seth Johnson JOHN SETH JOHNSON Assistant Attorney General