the City of San Antonio, (Appellant/Cross-Appellee) v. Kopplow Development, Inc., (Appellee/Cross-Appellant)

Citation: Not availableDocket: 04-09-00403-CV

Court: Court of Appeals of Texas; November 3, 2010; Texas; State Appellate Court

Original Court Document: View Document

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In the case of **City of San Antonio v. Kopplow Development, Inc.**, the Texas Court of Appeals addressed a statutory condemnation dispute where the City of San Antonio appealed a jury verdict that awarded Kopplow Development remainder damages. Kopplow filed a cross-appeal challenging the exclusion of specific evidence during trial. The court affirmed part of the trial court’s judgment but reversed the portion awarding remainder damages to Kopplow, ruling that they take nothing on that claim.

Kopplow Development owns approximately 18.451 acres at the intersection of Culebra Road and NW Loop 410, having acquired utility and construction easements from Southwest Research Institute. The City constructed a Regional Storm Water Detention Facility nearby, which included a drainage easement overlapping with Kopplow's utility easement. The project featured an inflow wall that helps prevent flooding on Kopplow's property during significant storms, though the City acknowledged potential future flooding risks due to a berm located south of Kopplow’s land.

Kopplow initiated an inverse condemnation suit against the City, claiming the Detention Facility would expose its property to flooding risks and sought to block the inflow wall's construction. The City responded with a counterclaim regarding the construction of the inflow wall on the easement. A jury trial in March 2009 featured testimony about the inflow wall's impact, including insights from the City’s chief storm water engineer on the project’s design and objectives aimed at flood mitigation.

Browning testified that the inflow wall does not cause flooding on Kopplow’s property during a 100-year flood, despite the overall project raising the floodplain level by two feet. He clarified that the wall regulates water entry into the basin but does not contribute to flooding on Kopplow’s property, which is primarily affected by a large berm. Rion, a civil engineer, confirmed that the City’s Detention Facility raises the flood level on Kopplow’s property by 2.16 feet during a 100-year flood and that this increase is directly caused by the facility. He noted that the presence or absence of the inflow wall would not significantly alter water levels on Kopplow’s property during such events. Eckmann, a real estate appraiser, assessed the value of the easement taken for the inflow wall at $4,600 and stated that it did not harm the remaining property. She indicated that the stormwater facility raised the floodplain elevation by 2.16 feet, suggesting potential damages of $408,400 if additional fill were required. Bolton, another appraiser, reported an $815,000 reduction in property value post-taking. The jury was tasked with three questions regarding the fair market value of the taken property, the proximate cause of damages to the remainder, and the difference in value before and after the taking. During deliberations, the jury sought clarification on whether to consider just the inflow wall or the entire detention facility when assessing damages. Ultimately, the jury determined the value of the taken part was $4,600, that it caused damages to the remainder, and assessed those damages at $690,000. The court accepted the jury’s verdict, while the City subsequently filed for a new trial and judgment notwithstanding the verdict, both of which were denied. Both parties have appealed the decision.

The City presents four appeal issues: (1) insufficient evidence supports the jury's affirmative finding regarding damages to Kopplow's remainder; (2) the jury's finding on damages should be zero since the City’s use does not cause damage; (3) the Campbell rule prohibits remainder damages in this condemnation case; and (4) claims of inverse condemnation are premature. The legal sufficiency standard requires that evidence allows reasonable jurors to reach the verdict, while factual sufficiency involves assessing all evidence to determine if the verdict is unjust. Under Texas law, property cannot be taken for public use without compensation, which includes severance damages for any remaining property when part is condemned. Severance damages are calculated by comparing the market value of the remaining property before and after the condemnation. However, these damages are not recoverable if the value loss results from the use of neighboring lands for the same project. The Schmidt court established that the Campbell rule applies unless the condemnee proves that the condemned land was essential for the project, constituted a significant portion of the tract, and that the damages to the remaining land were inseparable from those caused by the use of adjoining lands.

In Schmidt, the State acquired a strip of land from property owners as part of a Highway 183 modification project, which involved elevating the highway and reducing access and visibility for the remaining property. The landowners sought additional compensation for the decreased market value of their property, citing impaired visibility and accessibility. The court denied their claim for severance damages, concluding that the loss in value resulted from the highway modifications rather than the strip taken. It noted that while the taken land was essential for the project, it constituted a small portion of the overall property and the damages to the remaining land were not inseparable from those caused by the taking.

In a related case, the City countered Kopplow's claim that the easement taken would increase flooding on his property during a 100-year flood, presenting expert testimonies that asserted the inflow wall would not cause damage during such an event. The City argued that the Campbell rule applied, preventing Kopplow from recovering severance damages, as the easement was a minor part of a much larger project and any flooding issues originated from a berm, not the inflow wall.

Kopplow contended he was entitled to severance damages due to unique damages preventing development of his property, drawing parallels to State v. McCarley, where a small land taking altered drainage and inhibited development. However, the current case was distinguished from McCarley because there was no evidence linking the damages to the specific part taken.

The evidence reviewed indicates that the part taken from Kopplow’s property did not cause damages to the remaining property, leading to a conclusion that the jury's affirmative answer to Question No. 2 is unsupported by legally sufficient evidence. Consequently, the court agrees with the City that Kopplow is not entitled to compensation for potential damages from the berm, as it is not located on land acquired through condemnation. The court sustains the City's position and reverses the damages award to Kopplow. 

Regarding Kopplow's inverse condemnation claim, the City argues it is premature, contending that all foreseeable damages should have been included in the ongoing statutory condemnation proceeding. The law presumes that damages allowed cover all lawful elements that could have been reasonably foreseen at the time of condemnation, precluding subsequent recovery for consequential damages. The City further asserts that a claim for inverse condemnation related to flooding is not ripe unless the flooding occurs repeatedly, as established in precedent cases. Currently, there has been no flooding on Kopplow's property, and any damages would accrue only upon actual damage, governed by a two-year statute of limitations. 

Kopplow claims that its injuries extend beyond anticipated future flooding to include the inability to develop the remaining property without significant reclamation costs, which it argues constitutes an injury accrued before trial. However, the court finds Kopplow's inverse condemnation claim premature, emphasizing that for flooding to qualify as a physical taking, it must be recurrent. Prior case law supports the view that potential flooding does not equate to a taking without substantial recurrence, reinforcing that an inverse claim cannot be validly pursued if the property was subject to a prior statutory condemnation action.

A single flood event typically does not constitute a taking, as established in Gragg, 151 S.W.3d at 555. The recurrence requirement protects the government from liability for temporary or speculative impacts of its projects. Kopplow is not barred from pursuing an inverse condemnation claim since the property in question differs from the one previously condemned by the City. While the City took an easement for an inflow wall, Kopplow seeks compensation for damages to the remainder of his 18-acre property. The court affirms the trial court's judgment granting Kopplow $4,600 for the portion taken but reverses the $690,000 awarded for remainder damages, stating that Kopplow is entitled to nothing on that claim. 

In its cross-appeal, Kopplow argues that the trial court wrongly excluded evidence regarding the property's total value before considering the benefit of his development rights, and that proximate cause regarding remainder damages should be a legal question for the court. However, since the evidence fails to support the jury's remainder damages award, these issues are deemed moot. Ultimately, the court concludes that the City's actions did not cause damages to Kopplow’s remainder property.