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Click here for the full text of this decision FACTS:Margaret and Herbert Bell bought a residential lot in Dallas in 1987 and built an in-ground swimming pool. Though the Bells knew the city had an easement on the property for drainage sewers, they did not know that two storm drains were part of the easement. Noting cracks in their pool in 1993, the Bells pointed out the problem to the city as the city progressed on a project to improve the storm drainage system. A hole the Bells pointed out was filled with grout by the city. As part of its improvement project, the city hired Johnson Brothers for construction work in 2000. The work required the storm drain pipes to be exposed. The city found several problems with displaced joints and cavities related to the pipes on the Bells’ property. Though Johnson Brothers were initially going to seal the ends of one pipe and fill it with something like concrete, the city initiated a change order whereby Johnson Brothers injected concrete into the pipe. Despite this fix, the Bells’ pool continued to deteriorate. The Bells said this was because the cavities were not filled and the injected concrete did not get far enough into the pipe. By 2001, the cracks in the pool were so bad that the pool couldn’t hold water. The Bells sued Johnson Brothers and the city. The Bells alleged negligence and gross negligence against Johnson Brothers. Against the city, the Bells raised claims of negligence, gross negligence, promissory estoppel, inverse condemnation and non-negligent nuisance under the Texas Constitution. The trial court granted Johnson Brothers’ no-evidence summary judgment motion, and the trial court also granted the city’s plea to the jurisdiction, which was based on governmental immunity. HOLDING:Affirmed. The court rejects the Bells’ argument that they raised a fact issue regarding Johnson Brothers’ duty to stabilize the Bells’ property or pool. The evidence shows only that filling the cavities could be an incidental and desirable effect of filling the pipe. Furthermore, even if there was a duty, the court finds the Bells did not raise a fact issue related to proximate cause. The Bells provided no summary judgment evidence to show how the failure to fill the cavities resulted in the cracks in their pool. As for the city, the court finds that the Bells are complaining about the way in which the city has performed a governmental function sanitary and storm sewer management and suits over governmental functions are barred by sovereign immunity. Additionally, even though a city worker promised the Bells that certain actions would be taken, that worker did not have authorization to make those kinds of promises. Nor has the city waived its immunity under the Tort Claims Act, the court rules. The city is not liable for Johnson Brothers’ actions because that company was an independent contractor. The city had no legal right to control the details of Johnson Brothers’ work. The Bells did not show that they had a valid claim for non-negligent nuisance under the state constitution, either. Specifically, they have not pointed to any factual allegations in their petition to establish that: 1. the city intentionally performed certain acts, 2. that resulted in a “taking” of property, 3. for public use. OPINION:O’Neill, J.; O’Neill, Lang and Lang-Miers, JJ.

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