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Peacock v. City of Seagoville

Court of Appeals of Texas, Fifth District, Dallas
Mar 11, 2005
No. 05-04-00559-CV (Tex. App. Mar. 11, 2005)

Opinion

No. 05-04-00559-CV

Opinion Filed March 11, 2005.

On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-00-3482-a.

Affirm.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.


MEMORANDUM OPINION


Appellant Stanley Peacock, pro se in the trial court and on appeal, appeals a judgment granted in favor of appellee, the City of Seagoville. In six points of error, Peacock generally contends the trial court erred in entering a judgment in favor of the City. For the following reasons, we affirm the trial court's judgment.

Peacock sued the City of Seagoville for damages to his real property allegedly caused by an improperly installed and maintained drainage pipe. He alleged takings claims under the Texas and the United States Constitutions. The City removed the case to federal court. The federal district court remanded only Peacock's State takings claims to the trial court. At a trial before a jury, Peacock testified that the City's design of its water and sewer pipes and its failure to maintain those pipes caused damages to his property. After testifying, Peacock rested without calling further witnesses or presenting other evidence. The City moved for a directed verdict asserting Peacock had failed to present any evidence the City acted with the intent necessary to establish a taking or to show that any taking was for public use. The trial court granted the City's motion for directed verdict. In this appeal, Peacock presents six issues in which he generally complains of the trial court's judgment. We will consider the arguments raised in Peacock's brief, as best we understand them, to the extent necessary to dispose of this appeal.

Peacock first asserts the trial court erred in rendering judgment in favor of the City because "there was more to this case on record than just a "Taking." For example, Peacock devotes a substantial portion of his brief arguing a directed verdict was improper under the Tort Claims Act. However, a review of Peacock's petition shows the only claim alleged was a takings claim under the Texas Constitution. Peacock did not plead a claim under the Tort Claims Act. Nor were any such claims tried by consent. Thus, the trial court did not err in failing to enter a judgment for Peacock on such a claim. See Latch v. Gratty, Inc., 107 S.W.3d 543, 546 (Tex. 2003) (judgment must conform to pleadings and proof).

We now turn to whether the trial court erred in granting the City a directed verdict on Peacock's takings claim. A directed verdict for a defendant is proper when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right of recovery. Prudential Ins. Co. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). To establish a takings claim, a plaintiff must prove (1) the State intentionally performed certain acts, (2) that resulted in a "taking" of property, (3) for public use. General Servs Com'n v. Little-Tex Insulation Co, Inc., 39 S.W.3d 591, 598 (Tex. 2001). To show the requisite intent, there must be evidence (1) the State knows that a specific act is causing an identifiable harm, or (2) knows that the specific property damage is substantially certain to result from an authorized government action. City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004).

In this case, Peacock has directed this Court to no evidence to show the City knew a specific act was causing an identifiable harm, or to show the City knew any property damage was substantially certain to result from any complained-of action. Moreover, we have reviewed the entire record, and having done so, conclude Peacock failed to present any evidence from which the trier of fact could have determined the City had the requisite intent. In reaching this decision, we note Peacock attempts to rely on an affidavit attached to his petition and statements in his brief to support his assertion the City "intended" to damage his property. However, this Court cannot consider material that was not admitted into evidence in our review. Le Meridien Hotels Resorts v. LaSalle Hotel Operating Partnership, I, L.P., 141 S.W.3d 870, 876 (Tex.App.-Dallas 2004, no pet.); Vanscot Concrete Co. v. Bailey, 862 S.W.2d 781, 783 (Tex.App.-Fort Worth 1993), aff'd, 894 S.W.2d 757 (Tex. 1995). Because Peacock did not present evidence of an essential element of his takings claim, the trial court properly granted the City's motion for directed verdict. We affirm the trial court's judgment.


Summaries of

Peacock v. City of Seagoville

Court of Appeals of Texas, Fifth District, Dallas
Mar 11, 2005
No. 05-04-00559-CV (Tex. App. Mar. 11, 2005)
Case details for

Peacock v. City of Seagoville

Case Details

Full title:STANLEY PEACOCK, Appellant, v. CITY OF SEAGOVILLE, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 11, 2005

Citations

No. 05-04-00559-CV (Tex. App. Mar. 11, 2005)