Opinion filed May 3, 2012




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-11-00137-CV
                                         __________

                              CITY OF ABILENE, Appellant

                                                 V.

                              VICTORIA CARTER, Appellee


                            On Appeal from the County Court at Law

                                       Taylor County, Texas

                                  Trial Court Cause No. 21276


                             MEMORANDUM OPINION
       This is an interlocutory appeal from the trial court’s denial, in part, of the City of
Abilene’s plea to the jurisdiction. Victoria Carter, appellee, brought tort claims as well as consti-
tutional claims against the City to recover for water damage done to her property. She also sued
to recover payments she made for water bills incurred during the time that water was leaking at
her property. The City filed a plea to the jurisdiction. The trial court granted the City’s plea as
to appellee’s tort claims, but denied it as to appellee’s constitutional claims. The City asserts that
the trial court erred when it denied the plea to the jurisdiction because the City was protected
from suit by sovereign immunity. We reverse and render judgment for the City.
                                          Background Facts
       Appellee sustained property damage due to a water leak that she contends was caused by
the City of Abilene’s failure to properly shut off her water. Appellee met with a City employee
to inspect one of her properties for water leaks prior to having the water turned on at that
address. The City employee found that there was one leak inside one of appellee’s properties
and represented to appellee that, if the water was turned off at the meter, then there would be no
leak inside the property. The City did not put a lock on the turnoff at the meter, but it left the
water turned off.
       Appellee continued to receive bills from the City that showed water usage at that address.
She made several calls to the City to complain about the bills and to request that the property be
inspected again. The City claimed that it checked the turnoff, that there was no leak, and that
someone must be using water at the property. Appellee personally inspected the property and
saw that new pipe had been installed at the location of the cutoff valve, indicating that some
work had been done there. The City admitted that it had repaired a leak in its plumbing at that
location. Appellee disputed the water bill at that property and did not pay it. When she did not
pay the bill, the City shut off water service to that property as well as all of her other properties.
                                         Standard of Review
       A plea to the jurisdiction challenges a court’s subject-matter jurisdiction and is a question
of law that is reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
227–28 (Tex. 2004). To invoke the subject-matter jurisdiction of a court, the one bringing the
claim must allege facts that affirmatively demonstrate that the court has jurisdiction to hear it.
Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446
(Tex. 1993). To prevail on a plea to the jurisdiction, a defendant must show an incurable
jurisdictional defect apparent from the face of the pleadings that makes it impossible for the
plaintiff’s petition to confer jurisdiction on the district court. Bybee v. Fireman’s Fund Ins. Co.,
331 S.W.2d 910, 914 (Tex. 1960). Courts must consider evidence when necessary to decide
jurisdictional issues. Miranda, 133 S.W.3d at 221; Tex. Natural Res. Conservation Comm’n v.
White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55
(Tex. 2000). We do not look to the merits of the plaintiff’s case in conducting our review, but
consider only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional inquiry.



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Miranda, 133 S.W.3d at 225–26. We presume all well-pleaded facts to be true and construe the
pleadings liberally in favor of conferring jurisdiction. Id. at 226–28.
                                             Immunity
        Sovereign immunity, unless waived, protects the State and its various divisions from
damage suits. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003); Gen.
Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). As opposed to the
State and its various divisions, the term “governmental immunity” is the appropriate term to
apply to immunity enjoyed by political subdivisions of the State, including counties, cities, and
school districts. Wichita Falls State Hosp., 106 S.W.3d at 694 n.3.
        There are two facets to sovereign immunity and its counterpart, governmental immunity:
immunity from suit and immunity from liability. Id. Under the former, suit is barred unless the
legislature has given consent to sue. Id. Under the latter, protection is afforded from judgments
even though the legislature expressly has given consent to be sued. Id.
                                 Appellee’s Constitutional Claims
        Appellee alleged constitutional claims against the City for exaction, inverse condem-
nation, and nuisance. Those claims under the Texas constitution are not barred by governmental
immunity from suit. See TEX. CONST. art. I, § 17. A party may not, however, establish a prima
facie case for those claims by merely pleading negligent acts and labeling them as one of those
claims. See, e.g., Callaway v. City of Odessa, 602 S.W.2d 330, 333 (Tex. Civ. App.—El Paso
1980, no writ); Steele v. City of El Paso, 417 S.W.2d 923, 924 (Tex. Civ. App.—El Paso 1967,
writ ref’d n.r.e.).
                                             Exaction
        Appellee stated in her pleadings that the City was “harming [her] property and
wrongfully exacting water bill payments from her” (emphasis added). The City takes the use of
the word “exacting” to mean appellee is making a claim for exaction. We agree with the City
that a claim for exaction does not fit these circumstances. Exactions are a “distinct category of
regulatory takings [that occur] when the government conditions the granting of permit approval
. . . on an exaction from the approval-seeking landowner.” Town of Flower Mound v. Stafford
Estates Ltd. P’ship, 71 S.W.3d 18, 30 (Tex. App.—Fort Worth 2002) (citing Dolan v. City of
Tigard, 512 U.S. 374, 377 (1994)), aff’d, 135 S.W.3d 620 (Tex. 2004). In an exaction, “the
landowner is not simply denied or restricted in some desired use of his property. Rather, in an

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exaction takings case, some action—the exaction—is required of the landowner as a condition to
obtaining governmental approval.” Id.
       Appellee argues that, although she used the verb “exacting” in her pleadings, she was not
making a claim for exaction. The word was used in the “Facts” section of appellee’s pleadings.
In the section where she lists her claims, the damages that she claims to have suffered as a result
of the city-imposed charges for water are found in the paragraph regarding her inverse
condemnation claim. The pleadings refer to the charges claimed in the water bills as an “illegal
taking of property for public use as well.” In her brief, appellee urges that these damages are “a
taking under Jennings”; thus, we will consider them alternatively as part of appellee’s inverse
condemnation claim discussed below. City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex.
2004). Otherwise, if the claim is one for unconstitutional exaction, the trial court erred when it
denied the City’s plea to the jurisdiction upon this ground because this is not an exactions case.
We sustain the City’s third issue insofar as it pertains to a constitutional exactions claim.
                                       Inverse Condemnation
       The City argues that the trial court erred when it denied the City’s plea to the jurisdiction
as it related to the inverse condemnation claim because appellee failed to allege a valid claim for
inverse condemnation. “Inverse condemnation occurs when (1) a property owner seeks (2) com-
pensation 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.
       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

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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.




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                                            Nuisance
       The City contends that the trial court erred when it denied the City’s plea to the
jurisdiction in connection with appellee’s nuisance claim because appellee failed to allege a valid
claim of nuisance that rises to the level of a constitutional taking. Governmental liability for
nuisance arises from Article I, section 17 of the Texas Constitution.         Gotcher v. City of
Farmersville, 139 S.W.2d 361, 362–63 (Tex. Civ. App.—Dallas 1940), aff'd, 151 S.W.2d 565
(Tex. 1941). A city may be held liable for a nuisance that rises to the level of a constitutional
taking. Jennings, 142 S.W.3d at 316 (citing City of Abilene v. Downs, 367 S.W.2d 153, 159
(Tex. 1963)).    A “nuisance” is a condition that substantially interferes with the use and
enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary
sensibilities. Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). For an act of a
governmental entity to qualify as a nuisance without being defeated by the doctrine of
governmental immunity, the condition created by the entity must in some way constitute an
unlawful invasion of property or the rights of others beyond that arising merely from its
negligent or improper use. Shade v. City of Dallas, 819 S.W.2d 578, 581–82 (Tex. App.—Dallas
1991, no writ) (reversing summary judgment for the city on the plaintiff’s nuisance claim
because the city failed to prove that its act was negligent and, therefore, shielded by sovereign
immunity). Nonnegligent or intentional nuisance is actionable, and the City is not immune under
the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (West 2011 & Supp.
2011). See Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993,
writ denied).
       Here, appellee has not shown or otherwise pleaded that the City created or maintained a
nuisance in the course of nonnegligent performance of governmental functions. As discussed
above, appellee did not allege an intentional act and has at most alleged that the City acted
negligently. Furthermore, appellee did not allege that the line itself was inherently subject to
frequent breaks or that the City kept the water system running in bad repair. Rather, appellee
alleged only that the City continued the “intentional running of the water system for the public
use when they knew it was harming Plaintiff’s property.” The water system itself was not a
nuisance. It did not create the condition that caused discomfort and annoyance to appellee. This
was done by the leak in appellee’s toilet cutoff pipe. Viewed in the light most favorable to
appellee, the pleadings fail to establish a claim for nuisance that rises to the level of a

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constitutional taking. The trial court erred when it denied the City’s plea to the jurisdiction as it
related to appellee’s constitutional nuisance claims. We sustain the City’s second issue on
appeal.
          The judgment of the trial court is reversed, and judgment is rendered that appellee take
nothing by her claims.


                                                      PER CURIAM


May 3, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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