### IN THE TENTH COURT OF APPEALS

No. 10

- 21

- 00075

- CV
CITY OF ROBINSON, TEXAS , Appellant

v.

GABRIEL RODRIGUEZ AND IRENE RODRIGUEZ , Appellee s

From the 170th District Court McLennan County, Texas Trial Court No. 2021

- 117

- 4

DISSENTING OPINION

The residents of Robinson benefit from a municipal sewage system. Gabriel and Irene
Rodriguez contend that they are being forced to endure periodic inundation of their home by that
system which has not only directly caused them damage by back

- flowing raw sewage into their

home, but has also occurred so often that it has permanently damaged the val ue thereof ; and as
a result, their property has been taken/damaged by the City of Robinson for the benefit of its
residents. The question is whether the City of Robinson is going to be required to pay for the
damages the City’s sewer system has caused Gab riel and Irene . The Texas Constitution says that
the City is not immune from a suit for causing damage to Gabriel and Irene for a governmentCity of Robinson v. Rodriguez Page 2 service that benefits the City’s residents. The Court’s holding takes that right away. I disagree.
Accordingly I would affirm the trial court’s denial of the City’s plea to the jurisdiction.

As indicated, this proceeding is not yet about the merits of the claims. It is about whether

Gabriel and Irene are even going to have an opportunity to prove their claim in a Texas

courtroom

. The trial court determined they were entitled to pursue that claim. Established
precedent from this Court also hold s that Gabriel and Irene should have their day in court and
not be dismissed based on governmental immunity. In 1993 this Court stated:
Because fact questions exist about what caused the backup, whether the City intentionally or negligently failed to correct the cause of the backup, whether the condition rose to the level of a nuisance, whether the City intended to take acts which resulted in the taking, damaging, or destruction of any interest in the property, the City has failed to meet its summary

- judgment burden and was not entitled to summary judgment on this cause of action.
Bible Baptist Church v. Cleburne , 848 S.W.2d 826, 830 (Tex. App.

— Waco 1993, writ denied).

So well

- established has this line of authority been that in 2004, this Court applied it to
another proceeding , with remarkably similar facts, in a memorandum opinion in which it was
summarily stated:

INVERSE CO NDEMNATION AND NUISANCE CLAIMS
What actually caused the backup in the sewage line, whether the City knew of the problems, whether it intentionally or negligently failed to correct the cause of the backup, and whether the condition rose to the level of a nu isance or an unconstitutional taking are not known. Based on the current state of the law in this district, we hold that the trial court erred in granting the City's plea to the jurisdiction regarding the inverse condemnation and nuisance claims. See Coz by v. City of Waco , 110 S.W.3d 32 (Tex. App.

— Waco 2002, no pet.); Bible Baptist Church v. City of Cleburne , 848 S.W.2d 826 (Tex. App.

— Waco 1993, writ denied). We recognize that an inverse condemnation case on these issues, which could modify our analysis , is currently pending review by the Texas Supreme Court, 92 S.W.3d 640 (Tex. App.

— Beaumont 2002, pet. granted). But on the precedent currently binding on this court, Padgett and Dunn's first issue is sustained, in part.City of Robinson v. Rodriguez Page 3 Padgett v. City of Madisonville , 2004 Tex. App. LEXIS 1442, *2

- 3 (Tex. App.

— Waco Feb. 11, 2004, no
pet.).
Bible Baptist has been cited at least 31 times with no adverse history.
No appellate court has cited Padgett , which is as it should be with a true memorandum
opinion. T he petition for review in the Sabine River Authority of Texas v. Hughes opinion cited in
Padgett was ultimately denied. Moreover, the Texas Supreme Court cases of Abilene v. Downs 1

1 The Court’s opinion is particularly instructive on claims related to a nuisance created by the operation of a sewage plant, including noxious odors. There, the Court stated:
The resolution of the foregoing rests in the fact that the invading agents resu lting from the operations of the sewage disposal plant do not affect the physical condition or cause damage to the land itself

- as was the case of flowing water in Fromme

- but are the cause of, and result in, personal discomfort and annoyance to those wh o reside on the land. The damages consequent therefrom are recoverable as a taking or damaging of private property for a public use under Article I. Section 17, of the Constitution only if, and after, the operations of the sewer farm constitute a nuisance.
The basic rule was early stated by this Court in Baugh v. Texas & N.O.R. Co ., 80 Tex. 56, 15 S.W. 587:
"When a nuisance is created by the construction of works in their nature permanent, and which, as sometimes occurs in case of works for a public use, are not subject to be abated, the rule is that all damages resulting therefrom to property may be recovered in one action, and the proper measure of damages is the depreciation in the value of the property. Resenthal v. Railway Co ., (Tex.) ante, 268 (decid ed at the present term;) Railway Co. v. Hall , 78 Tex. 169, 14 S.W. Rep. 259."
It was further held by this Court in Sherman Gas & Electric Co. v. Belden , 103 Tex. 59, 123 S.W. 119:
"To justify a recovery of damages for personal inconvenience or reduction in the value of their property, the plaintiffs must prove such annoyance, discomfort, or other interruption of the use of their home as would constitute a nuisance. The standard by which the issue of nuisance must be determined by the jury is that the cond itions caused by the operation of the plant were such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes and habits. In other words, the acts complained of must constitute a nuisance. W.P.O. Co. v. Cook , 6 Tex. Civ. App. 5 73, 26 S.W. 96; League v. Journeay , 25 Tex. 172, Dittman v. Repp . 50 Md. 516, 33 Am. Rep. 325; 21 Am. & Eng. Ency. 687.
"If there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the p roperty."
City of Abilene v. Downs , 367 S.W.2d 153, 158 (Tex. 1963)

.City of Robinson v. Rodriguez Page 4 and Dallas v. Jennings , 2 when compared to the procedural posture, facts, and holding of the trial
court, support what the trial court did here, which was to allow the suit to proceed to a

determination of the merits of whether the City has taken or damaged private property for the
public’s benefit within the meaning of Article I, Section 17 of the Texas Constitution

. At the very least, it is clear that Gabriel and Irene could easily amend their petition to bring
themselves within the jurisdiction of the trial court as was held in t he precedential cases in this
district. I have not found anything that is inconsistent with the continued vitality of these cases

a s binding precedent upon this Court

.
If Gabriel and Irene are able to establish the back

- flowing raw sewage caused by the

in tentional operation 3 of the sewage treatment system is a nuisance that ha s damaged the use and
enjoyment of their home, they have been deprived of their property within the meaning of Art 1
Section 17 of the Texas Constitution. Because the Court holds that they will be permanently
deprived of their property without even the opp ortunity to establish their unconstitutional
takings claim, I respectfully , but vigorously , dissent.

TOM GRAY Chief Justice
Dissenting opinion delivered and filed October 6 , 2021 Publish

2 City of Dallas v. Jennings , 142 S.W.3d 310, 314

- 15 (Tex. 2004).

3 This is not like the situation in Schneider v. Cuero , 749 S.W.2d 614 (Tex. App.

— Corpus Christi 1988, writ denied), wherein the City was negligent in its operation of the landfill. Here, the City is intentionally operating the sewage treatment system for the continued use/benefit of its citizens.