Inverse Condemnation Claim – The intentional act element

  
INVERSE CONDEMNATION - WHAT MAKES FOR A VIABLE CLAIM?
  

“Inverse condemnation occurs when (1) a property owner seeks (2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding.”  City of Houston v. Norcini, 317 S.W.3d 287, 292 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (quoting Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.)); see City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. 1971). 

To state a cause of action for inverse condemnation under the Texas constitution, a plaintiff must allege (1) an intentional governmental act; (2) that resulted in his property being taken, damaged, or destroyed; (3) for public use.  Gen. Servs. Comm’n, 39 S.W.3d at 598.
  
SOURCE: EASTLAND COURT OF APPEALS - 11-11-00137-CV – 5/3/2012

 
The City asserts that appellee failed to allege facts that show an intentional act of the City.  If the government knows that specific damage is substantially certain to result from its conduct, then takings liability may arise even when the government did not particularly desire the property to be damaged.  Jennings, 142 S.W.3d at 314.  Thus, when a governmental entity physically damages private property in order to confer a public benefit, that entity may be liable under Article I, section 17 if it (1) knows that a specific act is causing identifiable harm or (2) knows that the specific property damage is substantially certain to result from an authorized government action—that is, that the damage is “necessarily an incident to, or necessarily a consequential result of” the government’s action.  Tex. Highway Dep’t v. Weber, 219 S.W.2d 70, 71 (Tex. 1949); accord Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004).

Appellee alleged that the City inspector knew she had a leak inside her property; her pleadings state that an inspector initially found only one leak, and it was inside appellee’s property at the toilet cutoff.  Appellee also alleged that she told the City that she was still being billed for water usage and that, at some point, the City replaced a pipe in the alley on the outside of her property.  Her pleadings describe a leak, in addition to the one inside her property, that the City admitted was “in their plumbing.”

However, appellee has not alleged that the City took a specific action that it knew was substantially certain to result in specific property damage to her property.  Appellee does not explain, in relation to when her property was damaged, when the repair to the leak in the alley was made or when her calls to the City were made.  Appellee did not live at the property in question and did not discover the damage until after its occurrence, and her pleadings did not state with any specificity when or how the damage was alleged to have occurred.  Her claim that the City’s representatives knowingly misrepresented facts about the existence of a leak or about checking the property is, thus, unsupported by factual allegations.

Taken as true, all that appellee’s pleadings establish is that there was a leak at some point in the City’s plumbing and that, at some point, the City repaired it. Appellee did not allege that the City intentionally caused the leak.  At most, the City’s actions in discovering and repairing the leak were negligent.  See Coyne v. Kaufman Cnty., 144 S.W.3d 129, 135 (Tex. App.—Eastland 2004, no pet.) (“An allegation that a person or entity failed to undertake an act it should have taken constitutes an allegation of negligent conduct.”).  Viewed in the light most favorable to appellee, the pleadings fail to allege an intentional act of the City rising to the level required to maintain a claim for inverse condemnation.  The trial court erred when it denied the City’s plea to the jurisdiction as it pertained to the inverse condemnation claim.  The City’s first issue on appeal is sustained.  If the exaction claim is a takings claim as argued by appellee, then for the same reasons (in addition to the ones earlier stated when we discussed a constitutional exactions case), we sustain the City’s Issue No. 3.   

SOURCE: EASTLAND COURT OF APPEALS - 11-11-00137-CV – 5/3/2012