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Board of Claims Case Dismissed Without Prejudice Told To File As an Inverse Condemnation

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#1
I need some thoughts on this since I do not actively practice Inverse Condemnation. I had a huge shade tree cut down by the state highway department, and it sounded in negligence. The Board of Claims is where you file a claim for negligence by a state agency. It was only one tree, but they negligently trespassed on my property, did not have a plat of the property, lied on a signed and sworn affidavit about the position of the tree. This tree was about four foot around and provided shade in my yard, and I live in a rural area.

I did not receive any notice of this. I was not living on the property, but was there everyday because I had been flooded out of home and the house had to be redone. I also picked up mail everyday. I filed the claim and it was dismissed by the Board on summary judgement. I appealed this dismissal to the Circuit Court, the location to appeal to. They reversed and remanded back to the Board of Claims, so I received a hearing on the matter. I won and received an award. It went before a hearing officer and also before the Board before the Order was approved.

However, the Highway Department, the department that was negligent filed for review of that Order in the Circuit Court. We had to file briefs again and had oral arguments. I over prepared, but the only question that was asked was why did I not file this in circuit ourt as an inverse condemnation case? I stuck behind the filing of the Board of Claims as a negligent action and that was the proper forum to file it under according to statutory law. This was before the original Circuit Judge who had remanded it back to the Board of Claims so that I would receive a hearing.

I received the Order, and my claim was dismissed without prejudice, because the Board of Claims did not have jurisdiction of the claim. Instead of filing it in the Board of Claims, the Opinion states I should have filed the case in Circuit Court as in inverse condemnation case. The opinion goes on to argue why although I had couched the claim as negligence it was really inverse condemnation. I have found errors. The Opinion says that trespass is an intentional tort, however, I have found case law where there is negligent trespass. Also inverse condemnation was never brought up in the Board of Claims area. The only place it was brought was in the state's brief, and the Opinion states it was not fleshed out. The Opinion then goes on to flesh it out.

I'm stunned by all of this. I have worked so hard to get the award, and then it was wiped out by this ruling.
 


#2
You did not mention the state, and that matters because each state's law is different. Also, were you represented by an attorney in this matter? If not, are you a lawyer? You mention that you "do not actively practice inverse condemnation". What do you mean by that if you are not a lawyer?
 
#3
Yes, I am a lawyer, and I represented myself, Pro Se. I have practiced some administrative law, but that was the first time before the Board of Claims. The state is Kentucky. I have never worked in reverse condemnation, so I did not analyze the situation under those terms, and quite frankly I still think it is proper as negligence.
 
#4
I have not fully researched the procedural posture here, i.e. what claims must be instituted in the circuit court and what goes to the BOC. But assuming you're correct that the distinction betweein an inverse condemnation and mere negligence/trespass is key to that, it seems the key then is whether what the state agency did amounted to a taking of the tree for public use:

The question of a legal taking is crucial. A taking is generally defined as the entering upon private property and devoting it to public use so as to deprive the owner of all beneficial enjoyment. Private property shall not be taken without just compensation. See 26 Am.Jur.2d, Eminent Domain, § 157.

This case involves what is referred to in the law as a reverse, or inverse, condemnation. Inverse condemnation is the term applied to a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used.​

Com., Nat. Res. & Envtl. Prot. Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 381 (Ky. 1984).

It seems that your complaint here is that the state didn't have the right to cut down your tree; instead, the state had the right to enter another property to pursue its objectives (I'm guessing clearing land for a road or highway since this was the highway department). The state highway crew apparently thought the tree was that other parcel of land when it cut the tree down. If the cutting of that tree was part of taking that other land for public use, then I think that this likely amounts to a inverse condemnation situation, even though the state happened to be on the wrong property at the time. Whether you style it as negligence, trespass, nuisance, it would still amount to an inverse condemnation:

However, it is well-established that sovereign immunity is no bar to a claim of inverse or reverse condemnation. And, it matters not whether the claim is based on the theories of trespass or nuisance, government action constituting a “taking” of real property creates liability for just compensation.​

Sanitation Dist. No. 1 v. McCord Plaintiffs, No. 2011-CA-000819-MR, 2013 WL 275602, at *3 (Ky. Ct. App. Jan. 25, 2013), opinion not to be published.

I obviously don't know all the facts of the case, haven't seen the evidence presented, nor have I read the opinions and orders in this case. But you are of the view that the circuit court made several errors and got it wrong in concluding that it was an inverse condemnation rather than just negligence. Given that that court dismissed the case without prejudice, it seems to me you have two choices. The first is appealing the circuit court order dismissing your claim to the court of appeals. The other is refiling your claim in circuit court as an inverse condemnation claim. You might want to have a colleague who is familiar with inverse condemnation claims review your case and advise you whether this really would amount to an inverse condemnation so you can decide whether an appeal would likely be successful or not.
 
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