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Click here for the full text of this decision FACTS:Gerald Boyle’s property in Houston was in an area the city had recently annexed from Harris County. The city maintained the drainage ditches in the area. When Boyle’s property flooded three times, he sued the city for damages. He raised inverse condemnation and non-negligent nuisance claims under the constitution and the Texas Tort Claims Act. The city filed special exceptions to the pleadings and a plea to the jurisdiction. Both were denied. While the city’s appeal of the plea to the jurisdiction was pending, the 14th Court of Appeals decided Taub v. Aquila Southwest Pipeline Corp., 93 S.W.3d 451 (Tex. App. � Houston [14th Dist.] 2002, no pet.), which held that through Government Code 25.1032(c), Harris County Civil Courts at Law had exclusive jurisdiction over constitutionally grounded inverse condemnation and non-negligent nuisance claims. The city filed a second plea to the jurisdiction, citing Taub, claiming that the Harris Court Civil Courts at Law had exclusive subject matter jurisdiction. The trial court denied the plea, but acknowledged that it did not have jurisdiction over the inverse condemnation claim. On a joint motion for clarification, the city against denied the city’s plea and ordered all proceedings abated until Boyle’s non-negligent nuisance claim was not a constitutionally based one. HOLDING:Reversed and rendered. The trial court’s acknowledgement that it lacked jurisdiction over Boyle’s inverse condemnation claim remains unchallenged, as Boyle did not perfect his appeal on this issue. The trial court’s conclusion that the non-negligent nuisance claim was not an inverse condemnation claim was in error. The court rejects Boyle’s argument that the government code’s reference to “eminent domain” does not encompass non-negligent nuisance. The state exercises its power of eminent domain through the condemnation process. 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. When the government creates a non-negligent nuisance that takes the owner’s property, the constitution waives immunity from suit and enables a property owner to recover compensation for his loss. Looking at Boyle’s pleadings, the court finds that they allege a “taking” by both inverse condemnation and nuisance. Furthermore, both sought condemnation damages. Boyle contends that the city’s conduct amounted to both a non-negligent nuisance and an inverse condemnation, for which the city had constitutionally waived immunity, and that both actions amounted to an intentional taking, for which Boyle was entitled to compensation through condemnation proceedings. As Taub recognized, because inverse condemnation proceedings are the means by which the city exercises its power of eminent domain, they are therefore within the exclusive jurisdiction of the Harris County Civil Courts at Law. “Because Boyle’s pleadings seek recovery premised on allegations that the City’s alleged conduct � both nonnegligent nuisance and inverse condemnation � resulted in a taking of his property that entitled him to compensation, the court concludes that exclusive jurisdiction over Boyle’s nonnegligent nuisance claim, as well as his inverse condemnation claim, is in the Harris County Civil Courts at Law pursuant to section 25.1032(c) of the Government Code.” The court then turns to decide whether the city waived immunity under the Tort Claims Act. Under the TCA, for the city to waive immunity for property-damage claims, the damage must have been caused by negligent operation or use of a motor vehicle or motor-driven equipment. Because Boyle’s pleadings do not allege either of these, the general rule of immunity controls. The trial court therefore erred when it did not sustain the city’s first plea to the jurisdiction for the TCA claims. As the defects to Boyle’s pleadings were incurable, nothing remained for the trial court to abate, and it should have dismissed the cause in response to the city’s second plea. OPINION:Alcala, J.; Nuchia, Alcala and Higley, JJ.

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