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Click here for the full text of this decision FACTS:lger and Royaline Kendall purchased a residence and approximately six acres of land from William and Doris White in 1996. After purchasing the property and moving into the home, the Kendalls learned that Karnes City claimed to have a sewer line easement across the property. The sewer line had been in place since 1962 but had never been properly recorded, and the Kendalls maintained it was not disclosed to them by the Whites prior to their purchase of the property. Shortly after moving onto the property, the Kendalls began experiencing problems with the sewer line. They claimed that on several occasions the manhole located on their property overflowed during periods of heavy rain, causing raw sewage to be discharged onto their property. In 1997, the Kendalls contacted the Texas Natural Resources Conservation Committee, the state agency charged with oversight of waste water issues, and voiced complaints about the situation. Mr. Kendall also claims to have notified the city about the overflow problem as early as 1997. The Kendalls initially filed suit against the Whites, alleging fraud and misrepresentation regarding the sale of the property. The Kendalls then filed a separate suit against Karnes City in January 2000, alleging that the city’s placement of the sewer line across their property without a recorded easement constituted an unconstitutional taking of their private property for public use in violation of Article I, 17 of the Texas Constitution. The Kendalls also alleged that the periodic overflows from the sewer line constituted a public nuisance, reducing the value and their enjoyment of the property. Karnes City initially filed only a general denial in response to the Kendalls’ claims. Then, in May 2003, the city filed a traditional and no-evidence summary judgment motion denying the Kendalls’ claims of nuisance and unconstitutional taking, and raising the affirmative defenses of governmental immunity, no waiver of immunity, discretionary powers defense, failure to provide notice of claims, and statute of limitations bar. The trial judge denied the city’s motion for summary judgment. The Kendalls subsequently settled their suit against the Whites. Their suit against Karnes City proceeded to jury trial in October 2003. After three days of trial, the case was submitted to the jury on special issues. With respect to the takings claim, the jury was asked whether Karnes City held an easement by prescription. The jury answered “No,” and found that the Kendalls were entitled to no damages for the presence of the sewer line across their property. The nuisance claim was submitted to the jury on two alternative theories. The jury was asked whether the operation of the sewer line by the city created an “intentional nuisance” on the Kendall’s property (Question No. 2), and, alternatively, whether the operation of the sewer line by the City created a “grossly negligent nuisance” on the Kendall’s property (Question No. 3). The jury answered “No” as to an “intentional nuisance,” but “Yes” as to a “grossly negligent nuisance.” The jury awarded the Kendalls $50,000 in damages for the reduction in the reasonable market value of their property and $25,000 for past and future discomfort and annoyance in the use and enjoyment of their property. Based on these jury findings, the trial court entered judgment against the City and awarded the Kendalls $101,530.05 in total damages and pre-judgment interest. HOLDING:Reversed and rendered. The Kendalls pleaded their claims only under the Texas Constitution. They state repeatedly in the record that they are not claiming any other waiver of immunity, such as through the Texas Tort Claims Act. Accordingly, it was the Kendalls’ burden to establish that the city physically damaged their private property with the intent necessary to establish a constitutional taking under the Jennings’ standard. City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004). The jury found no intentional conduct by Karnes City in response to Question No. 2. The court determines whether the only affirmative jury finding that exists, that of “grossly negligent nuisance,” supplies the requisite intent under Jennings. The jury’s finding of gross negligence does not meet the requirements of Jennings for several reasons: 1. The jury’s affirmative response to the above quoted question on “grossly negligent nuisance” establishes, at most, that the city acted with conscious indifference, which is not equivalent to acting with the intent or desire to cause identifiable harm or with the knowledge that harm is substantially certain to result; 2. based on the language and reasoning of Jennings, the Texas Supreme Court meant to limit governmental liability for a constitutional taking to intentional conduct; 3. both the Restatement and well-respected commentators characterize grossly negligent conduct as something less than intentional conduct; 4. though this court has previously relied on language from other courts of appeals cases involving inverse condemnation claims which state that “non-negligence means beyond negligence, as in gross negligence or an intentional act,” [City of San Antonio v. Pollock, 155 S.W.3d 322 (Tex. App. - San Antonio 2004, pet. filed) (quoting Tarrant County v. English, 989 S.W.2d 368, 374 (Tex. App - Fort Worth 1998, pet. denied))], the present case is distinguishable from Pollock, because here the jury found no intentional conduct by Karnes City; rather, the jury found only grossly negligent conduct, which we consider to be less than the intentional conduct required to establish a constitutional taking. OPINION:Speedlin, J.; L�pez, C.J., Stone and Speedlin, JJ.

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