Tex. Dep't of Transp. v. Self

690 S.W.3d 12

TEXAS DEPARTMENT OF TRANSPORTATION, Petitioner,

v.Mark SELF and Birgit Self, Respondents

No. 22-0585

Supreme Court of Texas.

Argued November 30, 2023

OPINION DELIVERED: May 17, 2024

On Petition for Review from the Court of Appeals for the Second District of Texas

Nicholas P. Laurent, Andrew York, Blaire A. Knox, for Respondents.

Jennifer Dechamplain Aufricht, Sean Hicks, Dallas, for Other interested party T.F.R. Enterprises, Inc.

Philip A. Lionberger, Susan Desmarais Bonnen, Austin, Brent Webster, Catherine Fuller, Houston, S. Grant Dorfman, Bellaire, Esteban M. Soto, Shawn Cowles, Judd E. Stone II, Atty. Gen. W. Kenneth Paxton Jr., for Petitioner.

Joanna Salinas, Austin, Scott Marcinkus, for Other interested party Lyellco, Inc.

Justice Busby delivered the opinion of the Court.

Mark and Birgit Self sued the Texas Department of Transportation (TxDOT), among other defendants, for negligence and inverse condemnation after employees of a TxDOT subcontractor cut down trees on the Selfs’ property outside the boundaries of the State’s right-of-way easement. The court of appeals held that TxDOT’s evidentiary plea to the jurisdiction failed on the negligence cause of action but should have been granted on the cause of action for inverse condemnation.

We disagree. As to negligence, the Selfs have not shown either that the subcontractor’s employees were in TxDOT’s paid service or that other TxDOT employees operated or used the motor-driven equipment that cut down the trees, as required to waive immunity under the Tort Claims Act. Regarding inverse condemnation, however, the Selfs have alleged and offered evidence that TxDOT intentionally directed the destruction of the trees as part of clearing the right-of-way for public use. We therefore reverse the court of appeals’ judgment, render judgment dismissing the negligence cause of action, and remand the cause of action for inverse condemnation to the trial court for further proceedings.

Background

The Selfs own a tract of rural land that adjoins a portion of Farm-to-Market Road 677 in Montague County and extends to the centerline of that road. The State has a right-of-way easement that reaches fifty feet from the centerline of the road in each direction and thus burdens part of the Selfs’ property. The Selfs’ predecessors constructed a fence along the edge of the easement, but the Selfs hired a contractor to remove this decaying fence and construct a new fence. The Selfs offered evi- dence that they instructed the fence contractor to "set the fence two to three feet on [the Selfs’] side of the [right-of-way] easement" to preserve large trees that had grown along the original fence and allow "the trees and fence [to] be maintained." As a result, a strip of the Selfs’ property two to three feet wide outside the new fence was not burdened by the State’s right-of-way easement.

TxDOT started a highway maintenance project and, as part of that project, contracted with T.F.R. Enterprises, Inc. (TFR) to remove brush and trees from the right-of-way. Their contract provided that "[t]rees to be removed shall be, marked by the State," either on the plans or with an X painted on the trunk, "PRIOR TO WORK BEING PERFORMED." After TxDOT expressed concern about TFR’s ability to complete the project on time, TFR notified TxDOT that it would increase its production by "adding a separate tree removal crew." TFR subcontracted with Lyellco Inc. to remove the trees.

Following TxDOT’s revised instruction to TFR to "clear everything between the fences," Lyellco workers cut all trees up to the Selfs’ fence line. After the Selfs complained, an email between TxDOT employees acknowledged that a TxDOT inspector "did direct the contractor to cut the trees down, but they were on the state highway side of the fence."

The Selfs sent a letter to TxDOT and attached a survey ‘they had obtained, which showed that twenty-eight oaks and elms with trunk diameters ranging from eighteen to thirty-nine inches were removed near their fence line—thirteen of which were wholly outside the State’s right-of-way and seven of which were partly outside it. TxDOT indicated in its interrogatory answers that it conducted "no surveys … in association with this project" and "TxDOT is not aware of any communications with [the Selfs] prior to clearing or maintaining of trees or vegetation on this project."

The Selfs obtained multiple estimates of the cost to replace the twenty felled trees that had been located wholly or partly outside the right-of-way with trees up to twenty inches in diameter (the largest commercially available), and they sought $251,000 from TxDOT to compensate them for this cost. TxDOT rejected their claim by letter, explaining that the Attorney General’s Office investigated the matter and concluded that TxDOT committed no act of negligence.

The Selfs sued TxDOT, contractor TFR, and subcontractor Lyellco for removing trees from the Selfs' land. They alleged two causes of action against TxDOT: negligence and inverse condemnation.

TxDOT filed a plea to the jurisdiction asserting immunity from both causes of action. Regarding negligence, TxDOT argued that the Selfs had not shown a TxDOT employee negligently damaged the trees by operating or using motor-driven equipment. See Tex Civ. Prac. & Rem. Code § 101.021(1). The Selfs responded that sovereign immunity was waived because (1) the Lyellco employees who removed the trees were TxDOT "employees" within the meaning of Section 101.001, and (2) other TxDOT employees exercised such control over the motor-driven equipment used to remove the trees that they "operated or used" that equipment within the meaning of Section 101.021.

Turning to inverse condemnation, as relevant here, TxDOT conceded that it directed TFR to remove the trees up to the fence line but argued that the Selfs failed to offer evidence that TxDOT intended to have trees removed from property outside its right-of-way. TxDOT pointed to undisputed evidence that the trees were on the state highway side of the fence and that the fence was not located at the edge of the right-of-way.¹ The Selfs responded that TxDOT acted with sufficient intent by countermanding the contract and ordering its contractor to remove all trees up to the fence, and they pointed to the TxDOT employee’s email acknowledging that a TxDOT inspector "did direct the contractor to cut the trees down."

The trial court denied TxDOT’s plea to the jurisdiction, and the court of appeals affirmed in part and reversed in part. As to the negligence cause of action, the court of appeals ultimately concluded there was a fact issue on whether the Texas Tort Claims Act waived immunity, holding: (1) the trial court erred in identifying a factual dispute regarding whether TxDOT operated or used motor-driven equipment under Section 101.021; but (2) the trial court correctly identified a fact issue about whether the Lyellco employees who did use the equipment were TxDOT "employees" under Section 101.001 rather than employees of an independent contractor. 683 S.W.3d 62, 73-88 (Tex. App.—Fort Worth 2022). Regarding the cause of action for inverse condemnation, the court of appeals reversed the trial court’s judgment and held there was no evidence that TxDOT intentionally destroyed the Selfs’ property. See id at 88-91. Both TxDOT and the Selfs filed petitions for review, which we granted.

Analysis

[1–4] Sovereign immunity protects the State and its agencies and subdivisions from suit and liability, PHI, Inc. v. Tex. Juv. Just Dep't, 593 S.W.3d 296, 301 (Tex. 2019), thereby depriving trial courts of subject-matter jurisdiction over suits against them unless the State consents. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Immunity is properly asserted in a plea to the jurisdiction, id at 225-26, which "may challenge the pleadings, the existence of jurisdictional facts, or both." Alamo Heights Indep. Sch. Dist v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the grant or denial of a plea to the jurisdiction de novo, "determin[ing] whether the plaintiff's pleadings, construed in favor of the plaintiff, allege sufficient facts affirmatively demonstrating the court’s jurisdiction to hear the case." Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012). "If evidence central to the jurisdictional issue is submitted, it should be considered in ruling on the plea to the jurisdiction" as "[e]vidence submitted with the plea may rebut the pleadings and undermine [the] waiver of immunity." Id

The parties’ petitions present the following issues for our decision. In determining whether the Tort Claims Act waives TxDOT’s immunity from the negligence cause of action, the first issue we must consider is whether the Lyellco employees are TxDOT "employees" as defined by Section 101.001 of the Civil Practice and Remedies Code. The second issue is whether other TxDOT employees "operated" or "used" the motor-driven equipment under Section 101.021 by exercising direct and mandatory control over its use. Regarding the cause of action for inverse condemnation, the issue before us is whether there is some evidence that TxDOT acted with the required intent when it destroyed the Selfs’ trees. We address each issue in turn.

I. The Tort Claims Act does not waive immunity from the Selfs’ negligence claim.

As relevant here, the Tort Claims Act waives a governmental unit’s immunity from suit and makes it liable for "property damage … proximately caused by … the negligence of an employee acting within his scope of employment" if the damage "arises from the operation or use of … motor-driven equipment" and "the employee would be personally liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(1). The Selfs contend that their negligence claim falls within this waiver for two reasons.

A. "Employee" under Section 101.001

First, the Selfs argue that the employees of subcontractor Lyellco who cut down...