*1 Texas, California, opposed would sub- Karen, DALLAS, Appellant
stantially increase the burden CITY OF weigh this factor does Karen’s favor. v. arguments Karen also makes various Peary ZETTERLUND, Appellee. A. generally contending appropriate the most No. 05-07-01378-CV. dispute forum for this is the California court stipulated judg- that rendered the Texas, Appeals Court ment of stipulated judg- divorce. It is the Dallas. that, part, ment ordered the creation of partnership the limited Karen issue. Aug.
contends the California court “retained
continuing jurisdiction and exclusive to re- disagreement solve regarding the [sic] partnership terms.” Karen cites no au- And,
thority proposition, for this however. although stipulated judgment states jurisdiction the California court retains enforce all executory provisions judgment carry and to make orders to judgment,
out the terms of the nothing states that the court retains interpret the terms of the partnership agreement. limited Both California and Texas have an inter- adjudicating est in in- dispute this as it volves a partnership California limited do-
ing business in Texas. Because this suit
does not complex involve numerous issues
or a large parties potential number of witnesses, convenience, the factors of ef-
fectiveness, efficiency do not weigh
heavily in Finally, favor of either state. though applica-
even this case involves the law, tion of California conclude we factor alone does not make this one of the juris-
“rare cases” in which the exercise of diction over a minimum party with comport play tacts does not with fair justice. substantial We resolve Karen’s against second issue her. affirm the trial denying We court’s order special appearance Karen’s challenging jurisdiction. trial court’s *3 Domeiri,
Shereen El Assistant At- torney, Perkins, Jr., Thomas P. Dallas Attorney, Rosenberg, City Barbara E. Office, Dallas, Attorney’s TX, Dallas Appellant. Dallas, TX, Badger,
Alvin H. for Appel- lee. WRIGHT, BRIDGES,
Before Justices and MAZZANT.
OPINION
Opinion by Justice MAZZANT. Appellee Peary ap- A. Zetterlund sued Dallas, pellant, for inverse con- demnation. The trial court denied the City’s plea jurisdiction, and the perfected interlocutory ap- this accelerated peal ruling. part from We affirm part. and reverse and render in
Background I.
A. Facts
from
We draw this statement of facts
allegations
pleadings.
in Zetterlund’s
undeveloped
Zetterlund owns an
tract of
Harry
land situated on
Hines Boulevard
Property
the unau-
Dallas,
use of Plaintiff’s
Texas.
In December
that certain
contractors
changing
discovered
thorized
character
using
site
were
Zetterlund did
Property.”
Plaintiff’s
construction
municipal pipeline
pro-
for a
clearly limit his
adjacent
ject on a tract
to his.
period.
time
any
claim to
particular
were
land
using
tractors
filed a
consent,
knowledge
without
invoking
immunity
the defense
had clear cut
of his
some
land
responded
suit. Zetterlund
open
storage
area for the
provide
supplemental petition
and filed a second
*4
equipment
permit
and to
materials
his
tres-
which he nonsuited
theories of
easy access. When Zetterlund confronted
contract, and
me-
pass,
quantum
breach of
site,
at
personnel
project
the
the
as-
more
to his
ruit. He also added
material
property
him that
would be re-
sured
his
alleged
claim.
He
acceptable
to an
condition and that
stored
unauthorized
appropriation
that the
fairly
for all
compensated
he would be
property
physical
of his
included
he
of his
And when
com-
made
property
“project staging
his
as a
area
clearing
property
of his
plained
materials,”
cutting
equipment and
it an
had made
attractive location for ille-
vegetation,
down of trees and other
dumping, an earthen
was con-
gal
berm
grade
proper-
of the
of his
modification
illegal
that discouraged
dumping
structed
ty
project
to facilitate the movement of
prevented
accessing
but also
him from
or
did
equipment and materials. Zetterlund
using
property. Despite protracted
clearly
appro-
limit his “unauthorized
negotiations,
City
Zetterlund and the
any particular
pe-
a
time
priation” theory
failed to reach
settlement
his de-
compensation.
mands for
a
added
pleading,
riod.
also
theory that the
new factual
construction
history
B. Procedural
by denying
a taking
the berm constituted
sued
and two
Zetterlund
him access to his
tractors
December 2005 on three theo-
plea
The
filed an amended
(1) trespass
period
ries:
as to the
before
jurisdiction.
responded,
Zetterlund
property
he discovered
invasion of his
plea
the trial court denied
amended
promise
and allowed the use to continue on
nonevidentiary
hearing.
after a
(2)
implied contract
payment,
breach of
It
interlocutory appeal.
then filed this
(3)
thereafter,
quantum
period
for the
trial
single
a
issue that
contends in
of use
period
meruit for
entire
by denying
plea
court
amended
erred
beginning
to end. After the
an-
jurisdiction.
swered,
supplemental
Zetterlund filed a
adding
theory:
a
petition
fourth
inverse
II.
Review
Standard
I,
under article
section 17 of
condemnation
im
city enjoys governmental
A
In the supple-
the Texas Constitution.
munity
for actions undertaken
from suit
petition,
mental
he asserted
functions.
governmental
the exercise of its
and its contractors had committed
“tak-
Blanton,
v.
Dallas
property by “commandeering”
of his
ing”
A
pet.).
271
no
(Tex.App.-Dallas
him
giving
without
notice or
trial
immunity defense defeats the
valid
pleaded
He further
obtaining
consent.
jurisdiction
subject-matter
court’s
that he was entitled to
for the
plea
asserted
properly
thus
fair
of his
“without
com-
Dep’t
Parks & Wild
jurisdiction. Tex.
to Plaintiff for the unauthorized
pensation
Miranda,
v.
area,
S.W.3d
225-26
terlund’s
life
Blanton,
(Tex.2004);
(2)
claimant’s pleadings, the trial court must A. Law of inverse condemnation
pleadings
construe the
liberally in the
pro
Texas Constitution
claimant’s
deny
favor and
if the
vides that
person’s property
“[n]o
shall be
claimant
alleged
has
facts affirmatively
taken, damaged
destroyed
or
for or ap
demonstrating
to hear
plied
public
adequate
use without
com
If
pleadings
insufficient,
case.
are
made,
pensation being
unless
the con
court should afford an opportunity to re-
person.”
I,
sent of such
Tex. Const. art.
plead if the
potentially
defects are
curable
§
governmental
takes,
If a
entity
may
if
pleadings
dismiss
affirma
damages,
destroys
public
*5
tively negate
jurisdiction.
the existence of
use without process
proper
or
condemna
Id. at 226-27.
tion proceedings, governmental immunity
If
plea
jurisdiction
waived,
is
and an action for inverse con
challenges the
jurisdictional
existence of
Blanton,
demnation will lie.
200 S.W.3d at
facts, the trial court must consider rele
claim,
271. To establish the
the claimant
vant evidence
parties.
submitted
If
(1)
prove:
governmental
must
entity in
question
the evidence creates a fact
re
(2)
tentionally performed certain acts
garding jurisdiction,
then the trial court
taking
resulted in a
damaging
or
of prop
grant
jurisdiction,
cannot
(3)
erty
Dallas,
for public use.
Garland &
and the fact issue will
be resolved
Ne. R.R. v.
Hunt County, 195 S.W.3d
fact-finder. But if the relevant evidence is
821 (Tex.App.-Dallas
no pet.). A
undisputed or fails to raise a fact question
physical taking,
opposed
to a regulatory
jurisdictional issue,
on the
the trial court
taking,
physical
is
unwarranted
appro
rules on the
as a
priation or
invasion of the property.
“[Tjhis
matter of law. Id. at 227-28.
stan
Blanton,
Id. at 314 adjacent to being station pump water built pipe- Harry Hines Boulevard. Part of B. Zetterlund’s claims for invasion City proper- was to be constructed on line to his *6 triangular ty bordering north of and on a respect With to Zetterlund’s by land owned Zetterlund. tract of on the claims based invasion of and dam manager City’s project was Tino Contrer- age property, City argues to his that Civil, Inc., the construc- as. Jacobs was the evidence defeats the first and third had manager project for and tion elements of his responsibilities the other oversight for element, claim. As to the first project. Renda contractors on Oscar argues City’s that the evidence shows the (“ORCI”) Inc., Contracting, the con- was acted with than nothing contractors more actually tractor that did the construction modified, they entered, negligence when pipeline. indicates work on the Evidence and used Zetterlund’s property. As in project began June that work on element, similarly argues the City third by damage negli caused mistake en- Although pipeline did not itself gence pub cannot be inflicted “for discov- croach on lic Zetterlund that the evi argues use.” contrac- ered December 2003 genuine dence raises a fact issue on both aas review, using part were of his tors Given our elements. standard Part had site. of his question City proved is whether the cut, and had been grade clear of law that one of the been matter at least area for adjusted provide open both to Dallas challenged elements absent. See Gonzales, 94, and storage of construction materials County v. 99 the denied) 2006, for (gov provide easy (Tex.App.-Dallas equipment and pet. entity summary- equipment involved personnel must meet ernmental by affida- proof Zetterlund testified project. standard of jurisdiction); person- Siegler, also Inc. v. that he confronted construction see Lear vit (de (Tex.1991) Perez, 470, property and was assured nel at the fairly for the use compensated disprove fendant must at least one element he would be of his property and that after Contreras had learned about the con- would be restored to an acceptable condi- troversy land, over the ownership of the tion. Zetterlund also filed as evidence a and that Zetterlund him advised on that letter dated March 2004 in which he occasion that he owned the property and Contreras, averred that project trespassing. contractors were Contr- manager, among was those present at the eras also acknowledged he told Zetterlund initial discussion. Based on this conversa- occasion, on that and wrote him letters tion, Zetterlund authorized the continued thereafter, pay would him project until the was compensation fair for the use of his land. completed. The record shows that Zetter- Rudy Renda also by deposition. testified lund and corresponded through- He was manager the chief project for the out 2004 regarding his claim compensa- for for ORCI. He plans testified that the tion and restoration of the property. The contract documents did not reference Zet- record also contains notes from a Decem- any way, terlund’s land in nor did ber 2004 meeting Zetterlund, by attended provide any ingress directions as to Douglas Zetterlund, Contreras, represen- egress. He plans denied that Jacobs, notes, tatives of and others. The specifications ingress egress called for which by were taken representa- Jacobs across Zetterlund’s land. He testified that tive, following include the passage: “It was he did not recall noticing the land owned agreed that [Dallas DWU Water Utilities] during bidding process used May [Zetterlund’s] project, but after ORCI won the August 2003 until 2004. This duration bid Renda noticed that thought land and of use agreed both DWU and helpful would be to use it ingress the Zetterlund’s Other in- [sic].” evidence egress project believed, site. He dicates that pipeline construction itself plans, based on the owned completed by the end of April 2004. question. the land in thought He it would Contreras deposition testified improve safety to use the ingress area for *7 he did not decide to use Zetterlund’s land egress and because that land was at the as a staging area for project, the that he same Harry elevation as Hines Boulevard. decision, did not know who had made that Under the belief that Zetterlund’s land that and he was not aware of that decision belonged City, sought per- Renda whenever it was made. He further testi- City mission from the to use the land for fied that a representative Jacobs named ingress egress at a meeting on the Jerry Nystrom told him that “operating project site. He remembered that Contr- personnel on the plant” water treatment eras was at that meeting, City as well as a given had him permission part “to use inspector named William Handel. He the land.” any Contreras testified that thought that a written communication change to project required the a written proposed ingress about the route of council, change approved by city order the egress Rezda, was sent to Jim who worked and that there was never a change order for Jacobs. He testified that both Rezda approving of the use of Zetterlund’s land and Contreras authorized the Zet- area. His recollection was land, emphasized terlund’s but he that he that the first time he heard of the contro- belonged believed the land at versy in January early was late or Febru- the time. He testified that someone from ary Nystrom when him advised that every day Jacobs was on-site of the project it was investigating the use of the land. that City inspectors Contreras testified that he were also often met Zetterlund face to face at property present about a week at project. the evi- person- Application b. law to that ORCI acknowledged
Renda
regarding the
intent
dence
down
trees on Zetterlund’s
nel cut
some
land,
anyone
he did not know whether
proper
applying
After
standard
activity.
had
that
directed
evidence,
that
review to the
we conclude
property
was also
on the
There
berm
Zet-
a fact
as to
the evidence raises
issue
ingress
permit
that ORCI removed to
claim
terlund’s inverse-condemnation
He
egress.
further testified
ORCI
to his
use of and
a “stabilized
entrance”
built
construction
intended
The evidence
ac-
on Zetterlund’s
facilitate
going
knew
its contractors were
Harry
cess from
Hines Boulevard to
Zetterlund’s land before
invade and use
utility right of
and the contractors
way,
is weak. But the evidence
December 2003
right
way
then used
fact issue
is more than sufficient
raise a
City’s property
pipeline
where the
was
City’s knowledge
after Zetter-
uncle,
He
that his
being built.
testified
in
lund
the invasion and use
discovered
Renda, was the first to meet Zetter-
Oscar
supports
December 2003.1 Some evidence
lund and learn that ORCI was on Zetter-
pres-
proposition
that Contreras was
passed
Renda
lund’s
Oscar
site in
project
ent at the
December
Renda,
Rudy
information to
and it was when Zetterlund confronted the construc-
then disseminated to the
and Jacobs.
personnel
tion
there
authorized
Renda recalled that there was
investi-
use of his
based
continued
to ascertain
gation
whose
fairly
representations
that he
be
would
being
survey group
used and
visited
accept
the use.
must
compensated for
We
His
site.
recollection was
ORCI was
contrary
disregard
this evidence and
remove
belongings
told to
all of its
from testimony
that he was not
of Contreras
in roughly February
the site
and it
meet
present
meeting
and did not
It also
diligent
did so.
made a
effort to
Zetterlund until some time later.
in
opin-
restore
and Renda’s
correspondence between Zetterlund
it
ion ORCI left
condition
better
than
further establishes actual
in 2004
originally.
replaced
ORCI
of its
notice
contractors’
removed,
that it had
berm
earlier
but Ren-
Fi-
early
da did not
directed
nally,
remember who
ORCI
shows
the use of
the evidence
arose,
controversy
to rebuild it.
Once
until Au-
continued
did not
with
gust
ORCI
have discussions
Zet-
months after the
several
*8
issue;
knowledge
the
its con-
acquired
terlund about
Renda believed
actual
that
using
City
property.
that Jacobs
the
took on that role.
tractors were
Zetterlund’s
argues
example,
property.
Zetterlund
second
1. The dissent
that
asserts
For
in his
inverse-condemnation claim for the con-
supplemental petition
alleged
no
"un-
that the
period
the time
tractors’
his land for
appropriation,
taking,
use” of
authorized
put
after he discovered the invasion
his
included
use of the
City
ownership.
of
On
on notice
his
review of
equipment
for
materi-
area
jurisdiction,
concerning plea
an order
als,
alleged
original petition that
and he
in his
liberally
pleadings
construe the
in favor
"[w]e
gave
City no-
this use
after he
continued
pleader!'s]
plaintiff[]
and look to
ownership
tice of
of
His
Miranda,
We
intent.”
quantum-meru-
nonsuiting
his contract and
of
disagree
interpretation
with the dissent’s
rely
suggests that
to
also
he intended
claims
pleadings,
we
Zetterlund's
construe them
theory
on the
for
allege
that the
for
to
"took”
period
of his
entire
of use
entire
contractors’ use of
duration of its
sum,
In
there
tion
is some evidence that the
the instant
evidence
case
knew,
no later than December
defeats the
of intent.
In Gafford,
element
that
physically
its
were
contractors
invad- Texas
Department
Transportation em-
ing and using
property,
that
ployees
undertook
clear brush and trees
permitted
Id.,
the continuation of
way.
on a State
right
2003 WL
only
the use
he was
because
told that he
State,
at *1. Gafford sued the
would be
and that
compensated,
the con-
alleging
employees
that those
also entered
tractors’
until August
use continued
2004. onto his
cut
down some
prove
did not
ás a matter of law
brush,
trees and
parked
concrete con-
that it did not know about or authorize its
equipment
struction
on his property.
Id.
contractors’
use
continued
of Zetterlund’s The trial court
denied
State’s
land.
jurisdiction,
the San
Antonio Court
Appeals
dismissed Gafford’s
claims
attempts
analogize
this case
jurisdiction.
Dallas,
want of
Id. Like
Gar-
precedents
governmental
which
R.R., however,
land & Ne.
is dis-
successfully negated
entities
the element
Gafford
tinguishable
because
the State
of intent.
distinguishable
Each is
on the
Gafford
adduced
evidence
establish
lack of
facts. For
in a
example,
recent case from
knowledge and intent:
Court,
sued Hunt County
railroad
for inverse condemnation after a county
At the
the State’s
hearing
on
road crew left four inches of
jurisdiction,
road-base
trial
court was informed
material on the railroad’s tracks and
employees
when TxDOT
were told
Dallas,
caused a train derailment.
Gar
stop
clearing
brush and trees on
R.R.,
land & Ne.
evidence the County only showed property until it was so informed.... authorized the road-maintenance crew to circumstances, Under these the removal place the material road-base on the of brush and trees Gafford’s roads, not on the tracks. Uncontrovert- by was not authorized or intended ed evidence also demonstrates that the State. County did not intend or authorize the case, contrast, Id. at *3. In the instant road-maintenance crew to cause some evidence the contractors showed to the Railroad’s track. continued to Zetterlund’s property case,
Id. at 821. instant several months after the learned that trast, there is evidence the use in progress. is not on Gafford learned about claim to owner- point. ship of the land in December 2003 and We conclude that did not ne- permit continued to its contractors to use gate the first element Zetterlund’s in- *9 the land representations under to Zetter- claim for invasion and verse-condemnation compensated. lund that he be would The use of his as a matter of law. City did not refute the element of intent as 2. Public-use element a matter of law in this case. Second, City argues City
The on v. the that Zet- Gafford, also relies State 04-03-00168-CV, the No. 2003 terlund’s claim for invasion and use of WL 22011302 28, 2003, because (Tex.App.-San July Antonio no also fails the invasion pet.) supporting use,” a (mem.op.), proposi- “public the and use were not for which
833
aspect
The
of the
project.
line
second
third
of an inverse-condem
is the
element
I,
requirement
is that “the
public-use
claim under article
section 17.
nation
aspects
public-use
actually
necessary
the
be
to
There are two
must
demnation
First,
the
requirement.
public
condemnor must
achieve the ostensible
advance or
intend a use for the
that consti
at 896.
Whittington,
use.”
174 S.W.3d
“public
a
use”
Texas law.
tutes
under
a
However, merely showing that there was
Austin,
Whittington
v.
prove
does not
plan”
alternative
“feasible
of
2005,
889,
pet.
(Tex.App.-Austin
896
de
not
taking or use
particular
that a
was
nied). Second, the condemnation must ac
Zboyan v. Far Hills Util.
“necessary.”
necessary to
tually be
advance
achieve Dist.,
924,
(Tex.App.-Beau-
930
S.W.3d
public
Id. The
the ostensible
use.
case,
pet.).
no
In this
the
mont
that
of
argues
proper
the use Zetterlund’s
the
shows that ORCI selected
evidence
(1)
“public
served no
use” because
it
ty
on
that
turned out to be
crossing site
negligence
resulted from the contractors’
it
specifically
Zetterlund’s land
because
(2)
by
not intended
it
was
of
was
than at least one
the other
safer
“necessary”
not
for
the construction
options
because it was “a more desir-
pipeline.
points
able location for
use.”
City’s
that
contractors
evidence
prong
City’s
As
first
of the
project
could
have accessed
site
argument,
true that “[w]hen
is
required
routes that would not have
them
merely
accidental
of the gov
is
result
But
land.
the mere
cross Zetterlund’s
act,
public
ernment’s
there is no
benefit
plan
existence of a feasible alternative
and the
said to
property cannot be
be
necessity.
does
the element of
not defeat
damaged
public
taken or
use.” Jen
for
Id.
(internal quota
nings,
at
omitted).
this proposition
tions
But
does
County
relies on Tarrant
also
imply
separate
requirement
not
a
intent
English,
(Tex.App.-Fort
v.
fuel county was neither authorized to a property [to landowner’s material be] necessary nor for the maintenance of the ly substantially impaired.” City of truck at 374. beds. Id. We conclude that San Antonio v. TPLP Park Props., Office English inapposite. is In English, (Tex.2007) curiam); (per 218 S.W.3d 66 governmental entity stopped damaging Delany, accord State v. 197 S.W.3d conduct after of promptly learning the ad curiam). (Tex.2006) (per “[Diminish jacent in complaint, landowner’s but ed if compensable access is not suitable instant case there is evidence access remains.” TPLP Park Props., Office City’s contractors continued to use Zetter- at example, 66. For closure of property long lund’s after the had point one access to does not ma knowledge actual of invasion terially substantially if impair access Moreover, land. in English there is no point public another access on a street indication that diesel fuel more unaffected, remains if even the closure the biodegradable efficacious than material causes diversion of circuity of traffic in beds, truck preparing the in the but Moreover, travel. Id. at impair 66-67. instant is case there evidence that Zetter- difficult prove ment access is when provided lund’s land a superior access businesses, question has no point compared to the other available homes, driveways, improvements or other options. is English not instructive on the Santikos, any County kind. Bexar v. facts of this case. (Tex.2004). In Santi Some evidence showed that the use of kos, the court matter of held as a law that land was advantageous Zetterlund’s there was no impairment access to an pipeline-construction project. The unimproved county’s tract when con did not establish matter of law that easy left to a frontage duct access road the use of Zetterlund’s land was not neces- ninety along percent of the tract and the sary project. carry for the It did not only that a developer owner’s claim was summary-judgment burden on proof might someday build a at driveway want to this issue. single expensive most difficult lo 3. Conclusion on the cation entire Id. 460- properly The trial court denied the plea to the extent pertaining The evidence to this is issue compen- attacked Zetterlund’s claim for sketchy. affidavit he Zetterlund’s made sation for the invasion and his prop- conelusory only following assertion: erty. Property was left a condi- C. claim for denial of ac- satisfactory tion to me that an earth-
cess to his en berm built discourage dump- ing Property parties, third aspect A separate the berm has had the effect of claim also denying My my Property. caused an earthen berm built on to be effectively him denies berm demands to have the removed and access to his ar own gate install a fence with have been gues that the evidence established as a ignored.
matter of that no law denial of access However, Contreras testified that Zetter- of a rising taking to the level occurred. has orally agreed meeting lund at a in the field berm prevent can the installation of the compensable A oc governmental cur if illegal dumping, action causes “access and that Zetterlund’s let- *11 we affirm trial respects, In all other agreement an had denying ters such incorrect. It is not been reached were court’s order. built, corre-
clear when the berm was WRIGHT, J., concurring dissenting. and the spondence between Zetterlund and City place it took between indicates that Wright. Dissenting Opinion Justice City The May 27 and October appeals the denial City of Dallas has never put on evidence that Zetterlund jurisdiction. The plea to the permit to con- its amended applied to for driveway connecting property trial court’s order majority struct a his affirms the And the Harry to Hines Boulevard. to Zetterlund’s claim com- respect with photographs filed two aerial area use of his pensation for the invasion and property with Zetterlund’s marked on the trial court’s or- reverses 2000 and photographs, them. The respect Zetterlund’s claim for der to with undeveloped is show that the land majority’s access. I concur in the denial of has to driveways connecting no it Har- of Zetterlund’s denial of access resolution ry Hines Boulevard. however, disagree, I ma- claim. with We conclude that the conclu- evidence jority’s holding that the evidence raises sively shows the construction fact on Zetterlund’s inverse condem- issue materially substantially berm does nation claim for use and to his Here, impair access to Zetterlund’s land. property. respectfully I dissent no impairment there has been of access at portion majority’s opinion. driveways all. are no providing There ve- original In al- petition, his Zetterlund land, hicular Zetterlund’s so the leged compen- that the has failed berm cannot affect vehicular access his promised sate him as the use of his From it photographs, is land on an unauthorized basis ini- “both apparent tially and on an authorized ba- thereafter on foot accessible after construction of sis” continues to have his the berm as it was before. He has almost property encumbered with the earthen frontage Harry 500 feet of on Hines Boule- precluding berm access to his vard on conceivably which could build a supplemental petition, In first Zetter- driveway provide reasonable access. As lund asserted his inverse condemnation law, a matter of the berm does not sub- follows: claim as stantially materially impair access to conduct of the of Dallas and Zetterlund’s tract of land. undeveloped ..., commandeering plain- agents, by denying The trial court erred plaintiff, without notice to tiffs jurisdiction respect with plaintiff, and with- without consent from to Zetterlund’s inverse-condemnation claim statutory guide- with the complying out theory extent is based by Texas domain required eminent lines impaired access. “taking” by laws constitute unlawful agents. and its Dallas IV. Conclusion added). Thus, Zetterlund con- (Emphasis reasons, For reverse in foregoing we period takings fined claim to the time denying trial order part court’s without his used City’s amended peti- same supplemental consent. judgment dismissing render tion, sought damages “for the claim the extent it plaintiffs unauthorized use of theory impaired is based on a access. *12 changing and the legedly permission unauthorized of the char- gave to the contractors plaintiffs acter of property.” Zetterlund to use the land. supplemental petition then filed second supports testimony Renda’s other in which he broadened inverse his condem- position that Contreras was not aware that nation claim to include the construction of Zetterlund owned the land at the time he berm alleged earthen which he denied allegedly gave permission for its use. He him There is no testified that it could be inferred from the dispute that the of construction the earth- plans owned the land. Ren- en berm occurred after Zetterlund author- permission da testified that he asked for ized the use his Zetter- use the land at a at meeting the site distinct, separate lund’s claims are and him, Rezda, Atkins, by Tony attended Jim in damages. both time and I will ad- Handel, Mr. and At Contreras. this meet- dress two by these uses as defined Zetter- ing, operating Renda was still under the lund. understanding mistaken that the land was 1. Unauthorized Use by City. owned He testified that no one property, To constitute a of at meeting suggested otherwise. Ren- government must authorize the damage in stated, da “It was a reasonable error on authority. exercise its lawful Tar everybody’s part.” deposition, In his County 368, English, rant v. Contreras denied that he had authorized 1998, (Tex.App.-Fort pet. Worth de the use of the land and he that testified no nied). Damage caused by negligent acts one contacted about employees government or agents of a do his land because no he one knew owned not amount to a taking. Highway Texas Moreover, the property. when Zetterlund Dep’t v. 147 Tex. Weber 219 S.W.2d brought attention, matter this to them (1949). 70, 71 survey conducted find out who actual- Zetterlund seeks compensation for the ly land. owned the property, initial intrusion onto his clearing Other evidence likewise that shows using it as a staging authorization of use of land was pipeline area project. for the He claims knowledge without was pri- the land City employees permitted its contrac- vately owned. On March Zetter- tors to his property. use lund, Contreras, Levitt, John and Cliff by
tends that such use
mistake
was
meeting.
Gaither
minutes
held
required
not intentional as
for an inverse
that meeting state:
condemnation claim.
by
It was
all
that in
agreed
parties
fact
support
position,
To
Zetterlund re-
Mr.
Renda,
the use of
testimony
Rudy
lies on the
permission
without his
or authorization
project.
construction contractor
for the
Contreras,
Renda
had occurred.
It was stated Messers
pro-
testified
Toni
Contreras, Levitt,
ject manager
City employee,
permit-
Gaither
this
ted the contractors to
the land.
was not
as the Bach-
my
intentionally
done
opinion,
testimony
personnel
be
man
truly thought
would
relevant
Plant
(Dallas
Utilites)
only if Contreras knew at the time that
prop-
was DWU
Water
gave
allegedly
permission
erty
“permission”
the land
to use
access,
staging,
storing
owned
Zetterlund. There is no
knowledge
evidence that Contreras had
for the
needed
installation
the time
ownership
pipeline
given
he al-
to the contractor.
*13
majority’s holding
I
with the
agree
berm.
July
2004 memo to
Council-
A
of ac-
Rasansky
denial
respect
Mitchell
from Assistant
Zetterlund’s
member
with
Manager
Miguez
Ramon
reiterates
claim.
cess
property
Zetterlund’s
point
that use of
however,
he assert-
assuming,
Even
knowledge that the
“due to the lack of
was
damages
gave
for
after
ed other claims
utilizing private property.”
was
contractor
property,
his
to use
his consent to
in this case are similar to
facts
claims cannot consti-
any
I
such
contend
upon by
City.
in case relied
See
facts
a
a matter of law. See State
tute a
04-03-00168-CV,
Gafford, No.
v.
State
(Tex.2007).
Holland, 221
v.
S.W.3d
Antonio
(Tex.App.-San
ees authorized site, given it was City- under the mistaken belief that was under owned Authorization Christopher LYTLE & Trailwood an such circumstances does not constitute Investments, L.L.C., Weber, taking. intentional See Appellants view, my only the record at 71. shows land, use of Zetterlund’s mistaken v. Therefore, intentional use. Zetterlund CUNNINGHAM, Appellee. Thomas cannot the essential element establish I has Accordingly, intent. believe No. 05-07-00250-CV. immunity. sovereign not waived Texas, Appeals Court of 2. Authorized Use Dallas. claim only asserted Aug. 19, 2008. own authorization of the following his of access is the denial of the earthen caused the construction