The State of Texas v. Howard Gafford--Appeal from 79th Judicial District Court of Jim Wells County

MEMORANDUM OPINION
No. 04-03-00168-CV
The STATE of Texas,
Appellant
v.
Howard GAFFORD,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 00-02-38306
Honorable Terry A. Canales, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 27, 2003

REVERSED AND DISMISSED

This is an accelerated appeal from the trial court's denial of the State's plea to the jurisdiction. The State asserts on appeal that it is immune from an alleged inverse condemnation claim arising out of the State's clearing of brush and trees from Howard Gafford's ("Gafford") property. Therefore, according to the State, the trial court erred in denying the State's plea to the jurisdiction. We agree. Accordingly, we reverse the order of the trial court and render judgment dismissing Gafford's claims for want of jurisdiction.

Background

Gafford owns a 2.40 acre tract of land in Jim Wells County that adjoins the right-of-way along U.S. Highway 281. On or about May 19, 1998, employees of the Texas Department of Transportation ("TxDOT"), a state agency, cleared brush and trees on the State's right-of-way. Gafford alleged that TxDOT employees "unlawful[ly]" entered his property without his consent, and destroyed brush and trees from a portion of his property. Gafford also alleged that TxDOT "further trespassed" onto his property by stacking and parking concrete construction equipment on his property.

Gafford sued the State, alleging that the State had trespassed onto his property and sought $250,000 in damages and $1,000,000 in exemplary damages. The State answered and filed a plea to the jurisdiction asserting that Gafford's claims for trespass and exemplary damages were barred by the Texas Tort Claims Act ("TTCA") and that Gafford failed to give notice of his claims as required by the TTCA. Gafford amended his petition, alleging that the State committed an unconstitutional taking of his property without just compensation. The State filed a supplementary plea to the jurisdiction arguing that Gafford failed to allege a legitimate takings claim and, therefore, his claim was barred by sovereign immunity. The State also filed a second supplemental plea to the jurisdiction and attached Gafford's deposition testimony. (1) In his deposition, Gafford stated that he did not believe that the State intended to take his property. After a hearing, the trial court denied the State's plea to the jurisdiction. The State filed a timely accelerated appeal from the trial court's order.

Standard of Review

Sovereign immunity defeats a trial court's subject matter jurisdiction over a lawsuit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (per curiam). The State may assert sovereign immunity from suit in a plea to the jurisdiction. See id. at 638. Because the question of subject matter jurisdiction is a question of law, we review de novo a trial court's order denying a jurisdictional plea based on sovereign immunity. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

As a general rule, when deciding a plea to the jurisdiction, the trial court must look to the allegations in the petition and must accept those allegations as true. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A court, however, is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If the petition fails to allege jurisdictional facts, the plaintiff has the right to amend before the trial court dismisses the cause. TRST Corpus, Inc. v. Fin. Ctr. Inc., 9 S.W.3d 316, 320 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). "Dismissing a cause of action for lack of subject matter jurisdiction is proper only when it is impossible for the plaintiff's petition to confer jurisdiction on the court." Id.; see Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.--Austin 1994, writ denied).

Analysis

Sovereign immunity protects the state and other governmental entities from being sued for damages. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002). Sovereign immunity consists of immunity from suit and immunity from liability. Id. Generally, a party seeking to sue the state must show that the state's immunity has been waived. A party bringing a constitutional takings claim, however, does not have to show waiver of immunity before bringing suit. Gen. Servs. Comm'n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001).

The Texas Constitution provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. . . ." Tex. Const. art. I, 17. If the government appropriates property without paying adequate compensation, the owner may recover the resulting damages in an inverse condemnation suit. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). In an inverse condemnation suit, a plaintiff must establish that the state (1) intentionally acted in a manner that (2) resulted in the taking of property (3) for public use. See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Little-Tex Insulation Co., 39 S.W.3d at 598. When a plaintiff does not allege a valid inverse condemnation claim, sovereign immunity applies and a court should grant the plea to the jurisdiction. Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 (Tex. App.--Houston [14th Dist.] 2002, no pet.).

The initial element of an inverse condemnation or taking claim is that the state engaged in an intentional act. See Firemen's Ins. Co. of Newark, N.J. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 543 (Tex. App.--Austin 1995, writ denied) overruled in part on other grounds by Bland, 34 S.W.3d at 555.; Green Int'1, Inc. v. State, 877 S.W.2d 428, 434 (Tex. App.--Austin 1994, writ dism'd). In order for the state to be liable on an inverse condemnation claim, an intentional action must be an action that is within the state's authority. Firemen's Ins. Co. of Newark, N.J., 909 S.W.2d at 543. "Only where the state has properly exercised its authority may the state be liable under [A]rticle I, section 17 of the Texas Constitution." Id. (citing Nussbaum v. Bell County, 97 Tex. 86, 76 S.W. 430, 432 (1903)).

We first consider Gafford's allegations on the face of the pleadings. In the absence of an allegation by the plaintiff that the state intentionally performed acts which resulted in a "taking" for public use, sovereign immunity lies to bar a suit for inverse condemnation. TRST Corpus, Inc., 9 S.W.3d at 323; Green Int'l, Inc., 877 S.W.2d at 434-35. In his First Amended Original Petition, Gafford alleged that TxDOT entered upon his land without consent, cleared brush and vegetation, and that such entry constituted a taking of his property.

The entry of the Defendant, TxDOT, its agents, servants and employees upon Plaintiff's land was made without Plaintiff's knowledge or consent. The unlawful entry and the destruction of the trees and vegetation on Plaintiff's property, without his consent or just compensation, amounts to a taking of his property.

* * *

Defendant's [sic], its servants, agents, and employees further trespassed on Plaintiff's land (adjoining his 2.4 acre tract) using the property to stack and park concrete construction equipment. Defendant's [sic], its servants, agents, and employees pushed debris, trash, and construction supplies on Plaintiff's property to Plaintiff's further damage and inconvenience.

Gafford has failed to allege that the State acted with specific intent to take his property for public use. See id.

Additionally, where a plaintiff makes claims that the government took property unlawfully or without lawful authority, such claims sound in tort and do not constitute a taking. Firemen's Ins. Co. of Newark, N.J., 909 S.W.2d at 544. In such circumstances, a plaintiff affirmatively negates his or her constitutional taking claim. See id. In his First Amended Petition, Gafford alleged that TxDOT employees committed "an unlawful entry" and "further trespassed" onto his property by stacking construction equipment. Gafford pled the tort of trespass, not a taking. Therefore, Gafford affirmatively negated his taking claim. See id.

We also consider that evidence relevant to jurisdiction reflects it would be impossible for Gafford's pleadings, if amended, to confer subject matter jurisdiction because such evidence negates his claim. The essential element that must exist for a taking to be compensable is that the private property was taken for, or applied to, public use. See Tex. Highway Dep't v. Weber, 219 S.W.2d 70, 72 (Tex. 1949); Tarrant County v. English, 989 S.W.2d 368, 373 (Tex. App.--Fort Worth 1998, pet. denied). When private property is damaged or destroyed merely as the result of government employees' negligence, it is not taken or damaged for public use. Weber, 219 S.W.2d at 71; English, 989 S.W.2d at 373. There is no taking unless the damage was authorized by the state in the exercise of its lawful authority or was necessarily incidental to the governmental action. English, 989 S.W.2d at 373 (citing Weber, 219 S.W.2d at 71 and Dallas County Flood Control Dist. v. Benson, 306 S.W.2d 350, 351 (Tex. 1957)).

It is undisputed that TxDOT was engaged in the construction of U.S. Highway 281. At the hearing on the State's plea to the jurisdiction, the trial court was informed that when TxDOT employees were told to stop clearing the brush and trees on Gafford's property, they stopped. (2) In his deposition, Gafford testified that based upon what TxDOT told him, he did not think "they intended to take [his] property." The evidence reflects that the State did not intend, authorize, or even know that it was removing trees from Gafford's property until it was so informed. See id. Under these circumstances, the removal of brush and trees on Gafford's property was not authorized or intended by the State. See Benson, 306 S.W.2d at 352 (holding there was no authorization or necessity for state employees to cause damage to cotton crops while spraying weeds with herbicide);Weber, 219 S.W.2d at 71 (holding there was no authorization or necessity for state employees to damage private property burned as a result of employees burning grass along state highway); English, 989 S.W.2d at 374 (holding migration of diesel fuel from county property to private property was not authorized or intended by county). At most, the evidence suggests that TxDOT employees acted negligently. See Weber, 219 S.W.2d at 71; English, 989 S.W.2d at 374. Mere negligence is not the lawful exercise of governmental authority, and therefore, does not constitute a compensable taking. English, 989 S.W.2d at 373; Firemen's Ins. Co. of Newark, N.J., 909 S.W.2d at 543. Gafford cannot allege an inverse condemnation claim.

We conclude Gafford's pleadings assert a claim for trespass. Sovereign immunity, however, also bars Gafford's trespass claim. Trespass is an intentional tort. See Harris County v. Cypress Forest Public Util. Dist. of Harris County, 50 S.W.3d 551, 554 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Under the TTCA, the limited waiver of sovereign immunity does not extend to intentional torts. See Tex. Civ. Prac. & Rem. Code Ann. 101.057(2) (Vernon 1997); Harris County, 50 S.W.3d at 553.

Additionally, to the extent Gafford's pleadings assert a claim for negligence, such a claim would also be barred because Gafford did not give the State notice of his claim. As required by the TTCA, the state is entitled to receive notice of a claim against it no later than six months after the date the incident giving rise to the claim occurred. Tex. Civ. Prac & Rem. Code Ann. 101.101(a) (Vernon 1997). To avoid dismissal for lack of subject matter jurisdiction, a plaintiff must fully comply with the TTCA. State v. Kreider, 44 S.W.3d 258, 262 (Tex. App.--Fort Worth 2001, pet. denied). Compliance with the notice provision under the TTCA is a jurisdictional prerequisite to a waiver of sovereign immunity. Id. at 263; Crane County v. Saults, 101 S.W.3d 764, 768 (Tex. App.--El Paso 2003, no pet.). Here, Gafford failed to plead or establish that he gave the State notice of his claim. Therefore, any claim arising out of the State's alleged negligence should be dismissed for lack of subject matter jurisdiction.

Conclusion

We sustain the State's sole issue on appeal. Accordingly, we reverse the trial court's order denying the State's plea to the jurisdiction and dismiss Gafford's claims.

Phylis J. Speedlin, Justice

1. The State styled this second supplement as "State's Second Supplement to its Plea to the Jurisdiction, and, Alternatively, Motion for Summary Judgment in Response to Plaintiff's First Amended Original Petition."

2. The unsworn, unobjected to factual statements and representations by attorneys can constitute evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). Accordingly, we can consider the State attorney's factual statement that TxDOT employees stopped when told to do so.