Enbridge Pipelines (East Texas) L.P. v. Saratoga Timber Co., Ltd., Batson Corridor, L.P., and Timbervest Partners Texas, L.P.

• Court: Court of Appeals of Texas
• Decided: January 15, 2015
• Docket: 13-14-00381-CV
• Status: Published

Opinion

ACCEPTED 13-14-00381-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/15/2015 3:58:21 PM DORIAN RAMIREZ CLERK

No. 13-14-00381-CV __________________________________________________________________ FILED IN 13th COURT OF APPEALS IN THE THIRTEENTH COURT OFCORPUS APPEALSCHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 1/15/2015 3:58:21 PM __________________________________________________________________ DORIAN E. RAMIREZ Clerk ENBRIDGE PIPELINES (EAST TEXAS) L.P. Appellant

v.

SARATOGA TIMBER CO., LTD., BATSON CORRIDOR, L.P., AND TIMBERVEST PARTNERS TEXAS, L.P. Appellees __________________________________________________________________

Appeal from the 88th District Court of Hardin County, Texas __________________________________________________________________

APPELLANT=S REPLY BRIEF _________________________________________________________________

FLOWERS DAVIS, P.L.L.C. 1021 ESE South Loop 323 Suite 200 Tyler, Texas 75701 (903) 534-8063 (903) 534-1650 Facsimile JULIE P. WRIGHT State Bar No. 00794883 jpw@flowersdavis.com THOMAS H. BUCHANAN State Bar No. 03290500 ATTORNEYS FOR APPELLANT

ORAL ARGUMENTS REQUESTED TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Index of Authorities .............................................................................................. iv-v

Reply Points Presented............................................................................................... 2

REPLY POINT NO. 1: Saratoga Timber’s arguments fail to defeat jurisdiction, particularly when those arguments and evidence are properly placed into the underlying chronology of filings and events occurring between the parties.

REPLY POINT NO. 2. Saratoga Timber’s position that Timbervest holds no interest in the purported Batson Corridor easement and never acquired the same, and thus has no interest in this proceeding is contrary to longstanding real property law pertaining to conveyances, and is legally and factually incorrect.

REPLY POINT NO. 3: Saratoga Timber’s claim—that Timbervest’s waiver of defective service was moot as well as untimely because it was filed after the trial court granted the plea to the jurisdiction—is untimely raised for the first time on appeal, and is legally and factually incorrect.

REPLY POINT NO. 4: Upon Enbridge’s joinder of Batson Corridor as an additional interested party, the trial court acquired administrative jurisdiction only over Batson Corridor. The trial court’s consideration and grant of Batson Corridor’s prematurely filed plea to the jurisdiction exceeded the scope of the trial court’s administrative condemnation jurisdiction, and must be reversed.

REPLY POINT NO. 5 Appellees’ claim of collusion or conspiracy between Enbridge and Appellee Timbervest is unfounded, unsupported by the record, and urged solely in an effort to cloud the issues and portray Enbridge in a less than candid light.

Summary of Reply Argument .................................................................................... 3

Argument and Authorities.......................................................................................... 4

ii Prayer ....................................................................................................................... 20

Appendix .................................................................................................................. 23

iii INDEX OF AUTHORITIES

Blake v. Blake, 725 S.W.2d 797 (Tex. App.—Houston [1st Dist.] 1987, no writ)......................................................... 8

Color Tile, Inc. v. Ramsey, 905 S.W.2d 620 (Tex. App.—Houston [14th Dist.] 1995, no writ) ...................................................... 8

Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149 (Tex. App.—Dallas 1986, no writ) ............................................... 15

Faulkner v. Culver, 851 S.W.2d 187 (Tex. 1993) ................................................... 15

Flynt v. Garcia, 587 S.W.2d 109 (Tex. 1979) ........................................................... 8

Guyot v. Guyot, 3 S.W.3d 243 (Tex. App.—Fort Worth 1999, no pet.) ................. 15

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex.2004)........ 18

Klein v. Humble Oil & Refining Co., 67 S.W.2d 911 (Tex. Civ. App.—Beaumont 1934) (reversed on other grounds, 86 S.W.2d 1077 (Tex. 1935)) .................................... 12

Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002) ................... 10

Metropolitan Transit Authority of Harris County, Texas v. Graham, 105 S.W.3d 754 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ................... 18

Patrick Media Group, Inc. v. Dallas Area Rapid Transit, 879 S.W.2d 375 (Tex. App.—Eastland 1994, writ denied)..................................... 18

Pich v. Lankford, 302 S.W.2d 645 (Tex. 1957) ....................................................... 12

Smith v. McCorkle, 895 S.W.2d 692 (Tex. 1995) .................................................... 15

State v. Bristol Hotel Asset Co., 65 S.W.3d 638 (Tex. 2001) .................................... 7

State Farm Ins. Co. v. Pults, 850 S.W.2d 691 (Tex. App.—Corpus Christi 1993, no writ) ............................................................. 15 iv Taack v. McFall, 661 S.W.2d 923 (Tex. 1983) ....................................................... 16

Till v. Thomas, 10 S.W.3d 730 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ......................................................... 9

Wright v. E. P. Operating Ltd. Partnership, 978 S.W.2d 684 (Tex. App.—Eastland 1998, pet. denied) ............................... 12-13

STATUTES AND RULES:

TEX. PROP. CODE ANN. § 21.016 (Vernon 2004) .............................................. 5, 7, 8

TEX. PROP. CODE ANN. § 21.016(d) (Vernon 2004) ................................................... 7

TEX. PROP. CODE ANN. § 21.016(d)(1) (Vernon 2004) .............................................. 7

TEX. R. APP. P. 9.4(i)(1) ........................................................................................... 21

TEX. R. APP. P. 9.4(i)(2)(B) ...................................................................................... 21

TEX. R. APP. P. 33.1.................................................................................................. 11

TEX. R. APP. P. 33.1(a)(2) ........................................................................................ 15

TEX. R. APP. P. 43.2.................................................................................................. 21

TEX. R. APP. P. 43.3.................................................................................................. 21

TEX. R. APP. P. 43.4.................................................................................................. 21

v No. 13-14-00381-CV __________________________________________________________________

IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS __________________________________________________________________

ENBRIDGE PIPELINES (EAST TEXAS) L.P. Appellant

SARATOGA TIMBER CO., LTD., BATSON CORRIDOR, L.P., AND TIMBERVEST PARTNERS TEXAS, L.P. Appellees __________________________________________________________________

Appeal from the 88th District Court of Hardin County, Texas __________________________________________________________________

APPELLANT=S REPLY BRIEF _________________________________________________________________

TO THE HONORABLE THIRTEENTH COURT OF APPEALS AT CORPUS CHRISTI:

COMES NOW ENBRIDGE PIPELINES (EAST TEXAS) L.P., Appellant

herein (hereinafter “Enbridge”), and submits this Appellant=s Reply Brief, and

would respectfully show the Court that, as addressed at length in Appellant’s Brief

and as discussed herein in response to specific issues raised in Appellees’ Brief,

this matter must be remanded to the trial court with instructions to reinstate the

condemnation matter as to all parties, appoint special commissioners, and allow the

1 parties to proceed with the condemnation. Appellees have cited no case authority

in their Brief which would allow this Court to uphold the trial court’s erroneous

ruling in dismissing the condemnation. In support thereof, Enbridge would show

the Court as follows:

II. REPLY POINTS PRESENTED

REPLY POINT NO. 1: Saratoga Timber’s arguments fail to defeat jurisdiction, particularly when those arguments and evidence are properly placed into the underlying chronology of filings and events occurring between the parties.

REPLY POINT NO. 2. Saratoga Timber’s position that Timbervest holds no interest in the purported Batson Corridor easement and never acquired the same, and thus has no interest in this proceeding is contrary to longstanding real property law pertaining to conveyances, and is legally and factually incorrect.

REPLY POINT NO. 3: Saratoga Timber’s claim—that Timbervest’s waiver of defective service was moot as well as untimely because it was filed after the trial court granted the plea to the jurisdiction—is untimely raised for the first time on appeal, and is legally and factually incorrect.

REPLY POINT NO. 4: Upon Enbridge’s joinder of Batson Corridor as an additional interested party, the trial court acquired administrative jurisdiction only over Batson Corridor. The trial court’s consideration and grant of Batson Corridor’s prematurely filed plea to the jurisdiction exceeded the scope of the trial court’s administrative condemnation jurisdiction, and must be reversed.

REPLY POINT NO. 5 Appellees’ claim of collusion or conspiracy between Enbridge and Appellee Timbervest is unfounded, unsupported by the record, and urged solely in an effort to cloud the issues and portray Enbridge in a less than candid light.

2 III. SUMMARY OF REPLY ARGUMENT

Appellees, Batson Corridor and Saratoga Timber overly simplify facts,

misrepresent facts, and ignore other pertinent facts, as well as make unfounded

accusations of some sort of conspiracy between Enbridge and Appellee

Timbervest, in an apparent effort to cloud the legal issues pending before this

Court. However, none of the issues raised support the trial court’s erroneous

dismissal of the underlying condemnation as to either Saratoga Timber or Batson

Corridor.

Saratoga Timber’s arguments fail to defeat jurisdiction, particularly when

those arguments and evidence are properly placed into the underlying chronology

of filings and events occurring between the parties. Its’ position that Timbervest

holds no interest in the Batson Corridor easement and never acquired the same, and

thus has no interest in this proceeding is contrary to longstanding real property law

pertaining to conveyances, and is legally and factually incorrect. And, Saratoga

Timber’s claim, that Timbervest’s waiver of defective service was moot as well as

untimely because it was filed after the trial court granted the plea to the

jurisdiction, is untimely raised for the first time on appeal, and is also legally and

factually incorrect.

3 Batson Corridor’s arguments likewise fail to defeat jurisdiction. Upon

Enbridge’s joinder of Batson Corridor as an additional interested party, the trial

court acquired administrative jurisdiction only over Batson Corridor. The trial

court’s consideration and grant of Batson Corridor’s prematurely filed plea to the

jurisdiction exceeded the scope of the trial court’s administrative condemnation

jurisdiction, and must be reversed.

Finally, Appellees’ claim of collusion or conspiracy between Enbridge and

Appellee Timbervest is unfounded, unsupported by the record, and urged solely in

an effort to cloud the issues and portray Enbridge in a less than candid light. The

two parties share a common interest in resolving the underlying condemnation and

the companion declaratory judgment action correctly and efficiently.

In addition to the matters addressed in Appellant’s Brief, Enbridge would

respond specifically to the following issues raised by Batson Corridor and Saratoga

Timber in Appellees’ Brief.

IV. ARGUMENT AND AUTHORITIES

REPLY POINT NO. 1: Saratoga Timber’s arguments fail to defeat jurisdiction, particularly when those arguments and evidence are properly placed into the underlying chronology of filings and events occurring between the parties.

Saratoga Timber makes two arguments in support of its position that

jurisdiction was never acquired over Saratoga Timber. Its’ primary legal argument 4 is that the handwritten language in the return of service, that the notice was served

“at the offices of” Saratoga Timber, establishes on its face a lack of compliance

with Texas Property Code §21.016, and defeats jurisdiction. Saratoga’s second

evidentiary attack is based upon the two affidavits it filed with the trial court in an

effort to raise a fact issue regarding whether Enbridge complied with §21.016.

Neither of Saratoga Timber’s arguments defeat jurisdiction, particularly when

those arguments and evidence are properly placed into the underlying chronology

of filings and events occurring between the parties.

A. Pertinent Factual Chronology

As the record demonstrates (along with the extensive briefing of the issue in

Appellant’s Brief):

Initially, Saratoga Timber did not properly raise the issue in its original Plea

to the Jurisdiction filed on March 12, 2007, in which it only claimed that it was not

the owner of the property and therefore not a proper party. (CR, 52-56).

Saratoga Timber failed to offer any proof sufficient to raise a fact issue as to

proper service of the notice when it filed its First Supplement to Plea to the

Jurisdiction on December 27, 2007, in which it attached the affidavit of Tricia

Chambers. (CR, 489-493).

5 Saratoga Timber conveyed all of its remaining right, title, and interest, in the

subject property to Timbervest effective January 16, 2008, (CR, 928-974), and lost

any justiciable interest in this lawsuit or standing to seek further redress.

All parties acknowledged that Saratoga Timber was not a proper party to this

suit or to the companion declaratory judgment action, on the record on April 9,

2014, and Saratoga Timber was dismissed from that suit. (CR, 975-82).

Saratoga Timber’s dismissal from that suit was brought to the attention of

this trial court by Timbervest on May 8, 2014. (CR, 924-27, 975-82).

On May 8, 2014, Timbervest, as the successor-in-interest to Saratoga Timber

formally waived any defects or irregularities in service of the notice. (CR, 924-

982).

Saratoga Timber untimely and erroneously filed its Second Supplement to

its Plea to the Jurisdiction on May 20, 2014 (over seven years after it filed its

original plea and over six years after it conveyed its interest to Timbervest), and

for the first time argued that the return was defective and offered an affidavit of

Rufus Ducan on behalf of Saratoga Timber in an effort to raise a fact issue

regarding proper service. (CR, 985-1010).

B. Analysis

6 Saratoga’s attempt to defeat jurisdiction is moot/a nullity because Saratoga

Timber lost standing in this matter in January of 2008, and none of the actions

taken by Saratoga Timber prior to that date ever properly challenged jurisdiction or

raised a fact issue as to proper service.

Texas Property Code §21.016(d) provides that notice of the special

commissioners hearing may be served “by delivering a copy of the notice to the

party or to the party’s agent or attorney.” Tex.Prop.Code §21.016(d)(1). This

return of notice recites that it was executed by serving “the Notice of Hearing,

together with a copy of the Petition for Condemnation filed in this case on

Saratoga Timber Co., Ltd, by delivering a true copy of said Notice and Petition to

the office of said Defendant…” (CR, 25). According to our Supreme Court in

State v. Bristol Hotel Asset Company, “a return of service of notice of a

commissioners hearing that strictly complies with section 21.016 of the Property

Code is prima facie evidence that the condemnee has been served with notice in

compliance with the statute. When the [condemnor] introduces such a return, the

condemnee must offer evidence that it was not served to raise a fact issue.” State v.

Bristol Hotel Asset Co., 65 S.W.3d 638, 642 (Tex. 2001).

Here, the return of service was filed of record before the special

commissioners hearing (CR, 22-25), constituting prima facie evidence that 7 Saratoga Timber had been served with notice in compliance with statute. Saratoga

Timber’s original plea to the jurisdiction did not assert any defect in the manner of

service upon Saratoga Timber, but rather claimed that Saratoga Timber was not the

owner of the property and not a proper party. And the first supplemental plea

included the affidavit of Tricia Chambers, which wholly failed to raise a fact issue

regarding service upon Saratoga Timber.

Likewise, none of the actions attempted by Saratoga Timber after it

conveyed its interest in the property to Timbervest were of any consequence.

Specifically, after Timbervest submitted itself to the jurisdiction of the trial court

as the successor-in-interest to Saratoga Timber (CR, 651-652), and after

Timbervest formally waived any defects or irregularities in service (CR, 924-984),

Saratoga Timber could not take any action which would divest the trial court of

jurisdiction. See Flynt v. Garcia, 587 S.W.2d 109, 109-10 (Tex.1979) (“where

jurisdiction is once lawfully and properly acquired, no subsequent fact or event in

the particular case serves to defeat jurisdiction.”); Color Tile, Inc. v. Ramsey, 905

S.W.2d 620, 623 (Tex.App.—Houston [14th Dist.] 1995, no writ); Blake v. Blake,

725 S.W.2d 797, 799 (Tex.App.—Houston [1st Dist.] 1987, no writ).

In sum, Enbridge established prima facie proof of service upon Saratoga

Timber in accordance with Texas Property Code §21.016, by filing the return of 8 service with the court. For the next seven years, that proof stood in the record

unrefuted. During that interim, Saratoga Timber conveyed all of its remaining

interest in the subject property to Timbervest in January of 2008, and Timbervest,

as the successor-in-interest to Saratoga Timber waived any defects or irregularities

in service. The subsequent and untimely filing by Saratoga Timber of the affidavit

of Rufus Duncan in May of 2014 (CR, 985-1010) was of no consequence – as it

was filed by a party who no longer had any standing to participate in the

condemnation and after the only party with standing to urge those alleged

jurisdictional defects had both submitted itself to the court’s jurisdiction and had

formally waived any such defects on the record.

REPLY POINT NO. 2. Saratoga Timber’s position that Timbervest holds no interest in the purported Batson Corridor easement and never acquired the same, and thus has no interest in this proceeding is contrary to longstanding real property law pertaining to conveyances, and is legally and factually incorrect.

Saratoga Timber contends on appeal that Timbervest holds no interest in the

purported Batson Corridor easement1 and never acquired the same, and thus has no

1 The validity of the attempted conveyance from Saratoga Timber to Batson Corridor remains disputed, and is the subject of a pending separate declaratory judgment action. A partial summary judgment has been granted in favor of Batson Corridor, but the matter has not been finally resolved. Additionally, once a final judgment has been rendered in that declaratory judgment action, such judgment will also be subject to appeal. Therefore, it is improper for Appellees’ to attempt to rely upon that trial court’s ruling (which is not of record in this case), or attempt supplement this record on appeal with documents which were not of record before the trial court below. See Till v. Thomas, 10 S.W.3d 730, 733 (Tex.App.—Houston [1st Dist.] 1999, no pet.). 9 interest in this proceeding. (Appellees’ Brief, pp. 20-21) Saratoga Timber claims,

as its legal basis for this position, that its “conveyance to Timbervest dated January

16, 2008, clearly provides that it was made and accepted by Timbervest subject to

the Batson Corridor Easement. The Batson Corridor Easement was an exception to

Timbervest’s title and Cause No. 47,333 (this action) was an exception to

Timbervest’s title.” (Id.)

Saratoga Timber appears to have a fundamental misunderstanding of real

property law regarding conveyances. Contrary to Saratoga Timber’s belief (as

expressly stated to the trial court and implicitly represented to this court) Saratoga

Timber did not convey all of its interest in the subject property to Batson Corridor

when it attempted to grant an easement and surface use agreement to Batson

Corridor. The purported conveyance from Saratoga Timber to Batson Corridor

was not a sale of the property in fee simple; it was for a pipeline corridor easement

and surface use agreement.

An easement is a non-possessory interest in another's property that

authorizes its holder to use that property for a particular purpose. Marcus Cable

Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). Such easement does not

convey title to property, but implies a grant of unlimited reasonable use insofar as

that use is reasonably necessary and convenient; the owner of land subject to an 10 easement otherwise retains title to the land and all that is ordinarily considered part

of that land. See id. Despite its belief to the contrary, Saratoga Timber continued

to own the property, subject to the outstanding corridor easement2, until it sold the

property to Timbervest in 2008.

It is likewise error for Saratoga Timber to state that Timbervest never

acquired any interest in the property for two reasons. First, Saratoga Timber never

challenged Timbervest’s ownership before the trial court and cannot raise the issue

for the first time on appeal. Tex. R. App. P. 33.1. And in fact, such was discussed

among counsel and the parties on the record at a hearing in the companion

declaratory judgment action, the transcript of which is included in the record

before this court – in which counsel for Appellees acknowledged that Saratoga

Timber sold all of its’ interest in the subject property to Timbervest and had no

further interest in the property or in litigation involving the property. Upon the

agreement, and at the request of all counsel, Saratoga Timber was dismissed from

that suit. To claim otherwise before this Court is therefore disingenuous.

Second, Saratoga Timber’s untimely challenge raised before this Court is

both legally and factually incorrect. Saratoga Timber seems to be taking the

position that because the Batson Corridor Easement and the underlying

2 (the validity of which is the subject of a separate pending declaratory judgment action). 11 condemnation lawsuit were noted as exceptions on the “Exceptions to Title”

exhibit to the conveyance, they were somehow excluded from the conveyance and

never conveyed to Timbervest. Saratoga Timber’s position is legally incorrect.

Generally a ‘reservation’ in a deed is a clause whereby the grantor reserves

to himself some new thing, either issuing out of or incident to the thing granted,

while an ‘exception’ in a deed is a clause exempting from the operation of the deed

and retaining in the grantor the title to some part of the thing granted, or else [as

here] excepting from the operation of the deed some part of the thing granted the

title of which is at the time in another. Klein v. Humble Oil, 67 S.W.2d 911, 915

(Tex. Civ. App.—Beaumont 1934)(reversed on other grounds, 86 S.W.2d 1077

(Tex. 1935)), but specifically approving the holdings of the Court of Civil Appeals

on the meaning and effect of the reservations and exceptions; Pich v. Lankford,

302 S.W.2d 645 (Tex. 1957).

Language in the deed stating that the conveyance is made subject to an

easement, lease, prior reservation, etc. does not reserve anything for the Grantor,

but rather simply recognizes that reservations, conveyances, easements, and /or

other burdens upon the land have been made in the past and are in the chain of

title. See Wright v. E.P. Operating Ltd. Partnership, 978 S.W.2d 684, 688

12 (Tex.App.—Eastland 1998, pet. denied). Those are to be excluded from the

warranty of title, not excluded from the conveyance.

By General Warranty Deed (CR 928-974), Saratoga Timber conveyed all of

its right, title and interest into certain property, approximately 2,069 acres in

Hardin County, Texas, to Timbervest. Nothing was reserved by Saratoga Timber

unto itself in the General Warranty Deed. In fact, per the specific language of the

deed, all of its right, title, and interest in and to the acreage (including the subject

property) together with “all standing and fallen timber, timber products and by-

products, all improvements located thereon and all of Grantor’s right, title and

interest in and to all easements, tenements, hereditaments, privileges and

appurtenances in any way belonging thereto, including without limitation, …. all

easements, rights-of-way, rights of ingress and/or egress and reversionary

interests…” were conveyed to Timbervest. (CR, 928). The entire conveyance

was made only subject to the matters listed on Exhibit “C,” where the Batson

Corridor easement and condemnation lawsuit were noted, along with other

easements of record, oil and gas leases, etc. (CR, 967-973). And, Saratoga Timber

bound itself and its successors and assigns to warrant and forever defend all and

singular the property unto Timbervest and its successors and assigns, subject only

to those matters referenced in Exhibit “C”. (CR, 928). 13 It is clear from the above language, that in 2008, when Saratoga Timber sold

all of its right title and interest in and to property (which included the purported

Batson Corridor Easement), the entirety of Saratoga Timber’s interest in the

subject property was conveyed without any reservations to Timbervest, expressly

subject to various easements, rights-of-way, and other encumbrances – including

the Batson Corridor easement and the underlying condemnation lawsuit. Those

subject to “exceptions to title” were not reservations which were excluded from

the conveyance, they were simply notations of all encumbrances and burdens on

the property to which title would not be warranted. Thus they can be found on the

exhibit to the conveyance document entitled “Exceptions to Title.” The language

upon which Saratoga Timber is attempting to rely in an effort to somehow

retroactively defeat Timbervest’s title to the property, is nothing more than the

language utilized routinely in warranty deeds to note exceptions to warranties of

title.

As of January 16, 2008, (the date of the conveyance to Tinbervest), Saratoga

Timber ceased to have any ownership interest in the subject property, and ceased

to be a proper party in this matter or to have any standing to seek court

intervention.

14 REPLY POINT NO. 3: Saratoga Timber’s claim—that Timbervest’s waiver of defective service was moot as well as untimely because it was filed after the trial granted the plea to the jurisdiction—is untimely raised for the first time on appeal, and is legally and factually incorrect.

Appellees also claim that Timbervest’s filing of its waiver on May 8, 2014,

was untimely because the trial court had already indicated that it was granting the

plea to the jurisdiction by notation on its docket sheet from the meeting in

chambers held on April 17, 2014 (at which no court reporter was present).

However, Appellees position finds no support in case authority.

To be effective, a ruling must be made on the record, either in writing or in

open court transcribed by a court reporter. TEX. R. APP. P. 33.1(a)(2); State Farm

Ins. Co. v. Pults, 850 S.W.2d 691, 693 (Tex.App.—Corpus Christi 1993, no writ).

A party cannot rely on a docket entry as a ruling on a motion as docket entries are

inherently unreliable. Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex.App.—Fort Worth

1999, no pet.); Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149,

151 n.2 (Tex.App.—Dallas 1986, no writ). The function of the docket sheet is

limited to correcting clerical mistakes. State Farm, 850 S.W.2d at 693; Energo,

722 S.W.2d at 151 n.2. Further, a docket entry cannot take the place of a written

order or judgment, and it does not preserve error. Smith v. McCorkle, 895 S.W.2d

692, 692 (Tex. 1995); Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993);

15 Taack v. McFall, 661 S.W.2d 923, 924 (Tex. 1983). The case law is clear and well

settled. A docket entry is neither a ruling nor an order.

Timbervest as the successor-in-interest to Saratoga Timber, stood in

Saratoga Timber’s shoes, had the absolute right to waive any defects of service,

and did so at a time when the trial court still retained its plenary power and before

the trial court issued its May 29, 2014 dismissal order.

Interestingly, the only document filed by Saratoga Timber in the entire

record before this Court which could have conceivably raised a fact issue regarding

proper service upon Saratoga Timber, was the affidavit of Rufus Duncan, which

was filed by Saratoga Timber on May 20, 2014. Per the argument made by

Saratoga Timber here, if we were to assume (wrongly) that the docket entry of

April 17, 2014 was the date the plea was granted, then Saratoga’s May 20, 2014

filing (made more than 30 days later) would not only have been filed post-

dismissal, but also filed after the court lost its plenary jurisdiction as well.

Similar to matters addressed to both trial courts below, Saratoga Timber

appears to continue to take inconsistent positions in its arguments before this

Court. Nevertheless, the affidavit of Duncan carries no weight in light of

Timbervest’s unequivocal waiver of any defects of service (and even without the

16 waiver, such affidavit at most would have only raised a fact issue requiring a

remand for a full evidentiary hearing on the record regarding the service issue).

For this reason, and the reasons already urged in Appellant’s Brief, it was

error for the trial court to dismiss this matter upon the request of Saratoga Timber,

based upon its’ plea to the jurisdiction.

REPLY POINT NO. 4: Upon Enbridge’s joinder of Batson Corridor as an additional interested party, the trial court acquired administrative jurisdiction only over Batson Corridor. The trial court’s consideration and grant of Batson Corridor’s prematurely filed plea to the jurisdiction exceeded the scope of the trial court’s administrative condemnation jurisdiction, and must be reversed.

Appellees’ statement that Enbridge failed to make Batson Corridor a party

to the administrative proceeding is contradicted by the record, and the trial court

separately erred when it dismissed the condemnation matter as to Batson Corridor

based upon a plea to the jurisdiction.

Enbridge filed its First Amended Statement and Petition for Condemnation

on December 18, 2007 against both Saratoga Timber and Batson Corridor, alleging

that Batson Corridor, L.P. was an additional interested party and requesting that the

trial court appoint special commissioners, that notice be served in compliance with

the statute, and that the condemnation matter proceed. (CR, 469-486). The trial

court did not appoint special commissioners or move the condemnation matter

forward; however, Batson Corridor nevertheless filed its own answer and plea to 17 the jurisdiction. (CR, 494-504). In its answer and in a portion of its plea to the

jurisdiction, it urged that Enbridge did not engage in negotiations with Batson

Corridor prior to adding Batson Corridor as a party to the condemnation. (CR,

495, 501). However, our Texas Supreme Court in Hubenak has clearly held that

such prerequisites to suit are mandatory but not jurisdictional, and that the proper

remedy is abatement for such period of time to cure the defect/issue. Hubenak v.

San Jacinto Gas Transmission Co., 141 S.W.3d 172, 180-84 (Tex. 2004).

Batson also erroneously argued that the trial court was without jurisdiction

over Batson Corridor based upon the alleged defects of notice relied upon by

Saratoga Timber. However, such position is without merit. In condemnation

proceedings, the trial court has appellate jurisdiction limited to the parties and

issues involved in the administrative proceeding before the special commissioners.

Patrick Media Group, Inc. v. Dallas Area Rapid Transit, 879 S.W.2d 375, 377

(Tex. App.—Eastland 1994, writ denied). However, condemnors are not required

to join all property owners in one proceeding at one time, but may proceed with

less than all parties so long as the interest of the unserved party is not adjudicated.

Metropolitan Transit Authority of Harris County, Texas v. Graham, 105 S.W.3d

754, 757-61 (Tex.App.—Houston [14th Dist.] 2003, pet. denied).

18 Here, after the special commissioners hearing was held as to Saratoga

Timber, upon learning of Batson Corridor’s potential interest in the property,

Enbridge joined Batson Corridor as an interested party and requested that the trial

court proceed with its administrative condemnation obligations. Batson Corridor

was not a party to the special commissioners hearing or award. The proceeding

was administrative as to Batson Corridor, and would remain administrative until a

special commissioners hearing was held, an award made, and objections filed (or

not filed). Without those events occurring, the trial court could not exercise its

appellate/judicial jurisdiction over Batson Corridor to consider or grant its plea to

the jurisdiction, and it was reversible error for the trial court to do so.

REPLY POINT NO. 5 Appellees’ claim of collusion or conspiracy between Enbridge and Appellee Timbervest is unfounded, unsupported by the record, and urged solely in an effort to cloud the issues and portray Enbridge in a less than candid light.

Finally, the assertion that Enbridge and Timbervest are somehow colluding

or plotting against Saratoga Timber and Batson Corridor is unfounded, is not

supported by any document contained in the record before this Court, and is a

thinly veiled attempt to cast Enbridge (and perhaps Timbervest) in a less than

candid position before this Court. Such is not the case. Enbridge is motivated to

efficiently and correctly resolve this matter (and the accompanying declaratory

19 judgment action) so that Enbridge obtains an easement for its pipeline from the

correct property owner(s).

What has gone unacknowledged by Appellees is that at every turn, after

Saratoga Timber first raised the defective service issue (claiming that it did not

own the subject proper, was not a proper party, and that the property party was

Batson Corridor), and again after Saratoga Timber sold its interest to Timbervest,

Enbridge joined each alleged additional necessary party and requested the trial

court to appoint special commissioners and to proceed with the administrative

portion of the condemnation matter. At every turn, the request was ignored.

The jurisdictional dismissals were erroneous, and ultimately served no

purpose but to prolong litigation, costing all parties’ time and unnecessary expense.

V. PRAYER

WHEREFORE, PREMISES CONSIDERED, Enbridge respectfully

requests that this Court sustain the issues raised in Appellant’s Brief and further

addressed herein above, reverse the trial court’s judgment of dismissal for lack of

jurisdiction, remand this matter to the trial court with instructions to reinstate the

condemnation matter, appoint special commissioners, and allow the parties to

20 proceed with the condemnation, and award Appellant its costs of court and

appellate costs. TEX. R. APP. P. 43.2, 43.3, and 43.4.

Respectfully submitted,

FLOWERS DAVIS, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 (903) 534-8063 (903) 534-1650 Facsimile

/s/ Julie P. Wright JULIE P. WRIGHT State Bar No. 00794883 THOMAS H. BUCHANAN State Bar No. 03290500 ATTORNEYS FOR APPELLANT ENBRIDGE G & P (EAST TEXAS) L.P,

CERTIFICATE OF COMPLIANCE

I certify that this Appellant’s Reply Brief complies with the limitation of

TEX. R. APP. 9.4(i)(2)(B) because it contains 4,082 words, excluding the parts of

the brief exempted by TEX. R. APP. P. 9.4 (i)(1).

/s/ Julie P. Wright JULIE P. WRIGHT 21 CERTIFICATE OF SERVICE

I hereby certify and state that a true and correct copy of this document has

been provided to and served on the following via EFSP, electronic mail, and

certified mail, return receipt requested, on this the 15th day of January, 2015:

Robert Keith Wade Law Offices of Robert Keith Wade 650 North Ninth Street at McFaddin Beaumont, Texas 77702-1614 Email: rwade-law@sbcglobal.net

Brian D. Sutton SUTTON & JACOBS, LLP 850 Park Street Beaumont, Texas 77701 Email: brians@sutton-jacobs.com

R. Kyle Hawes, Esq. Chamblerlain, Hrdlicka, White, Williams & Martin 1200 Smith Street, Suite 1400 Houston, Texas 77002 Email: kyle.hawes@chamberlainlaw.com

/s/ Julie P. Wright JULIE P. WRIGHT

22 APPENDIX

Case Authorities .................................................................................................Tab A

Blake v. Blake Color Tile, Inc. v. Ramsey Energo Intern. Corp. v. Modern Indus. Heating, Inc. Faulkner v. Culver Flynt v. Garcia Guyot v. Guyot Hubenak v. San Jacinto Gas Transmission Co. Klein v. Humble Oil & Refining Co. Marcus Cable Associates, L.P. v. Krohn Metropolitan Transit Authority of Harris County, Texas v. Graham Patrick Media Group, Inc. v. Dallas Area Rapid Transit Pich v. Lankford Smith v. McCorkle State v. Bristol Hotel Asset Co. State Farm Ins. Co. v. Pults Taack v. McFall Till v. Thomas Wright v. E. P. Operating Ltd. Partnership

23 TAB A Page 1 725 S.W.2d 797 (Cite as: 725 S.W.2d 797)

does not prevent court from rendering judgment as long as suit is correctly filed and court is one of Court of Appeals of Texas, proper jurisdiction at time of filing. Houston (1st Dist.). [2] Courts 106 168 Johnnie L. BLAKE, Individually and as Trustee for John William Blake and Jeremy Louis Blake, 106 Courts Minors, Appellant, 106IV Courts of Limited or Inferior Jurisdiction v. 106k167 Limitations as to Amount or Value Rebecca L. BLAKE, Appellee. in Controversy 106k168 k. In general. Most Cited Cases No. 01–85–0934–CV. Trial court was bound by its determination that Feb. 12, 1987. it had jurisdiction based on pleading of an unspe- cified amount in husband's original petition in dis- Suit was instituted by husband in a dispute with pute with wife over personal property following di- wife over personal property following divorce. The vorce and, viewing claims of wife and two children County Court No. 2, Galveston County, Ronald L. individually, was vested with jurisdiction to award Wilson, J., entered order dismissing suit for want of wife $2,568.20 and each child $9,802.29, represent- jurisdiction, and husband appealed. The Court of ing savings account funds and value of destroyed Appeals, Duggan, J., held that trial court was bound property, notwithstanding that limit on amount of by its determination that it had jurisdiction based on trial court's jurisdiction under statute in effect at pleading of an unspecified amount in husband's ori- that time was from $500 to $10,000. Vernon's ginal petition and, viewing claims of husband and Ann.Texas Civ.St. art. 1970–342b. two children individually, was vested with jurisdic- tion to award husband $2,568.20 and each child [3] Courts 106 472.1 $9,802.29, representing savings account funds and value of destroyed property, notwithstanding that 106 Courts limit on amount of trial court's jurisdiction under 106VII Concurrent and Conflicting Jurisdiction statute in effect at that time was from $500 to 106VII(A) Courts of Same State $10,000. 106VII(A)1 In General 106k472 Exclusive or Concurrent Jur- Judgment dismissing suit set aside, order set- isdiction ting aside default judgment affirmed, and cause re- 106k472.1 k. In general. Most Cited manded. Cases Husband, not having benefit of subsequently West Headnotes enacted provision of Family Code governing en- [1] Courts 106 168 forcement of matters pertaining to property in di- vorce decrees, had right to enforce terms of divorce 106 Courts decree with respect to property division in a court 106IV Courts of Limited or Inferior Jurisdiction other than that which granted divorce and was not 106k167 Limitations as to Amount or Value required to resort exclusively to family law court. in Controversy V.T.C.A., Family Code § 3.70. 106k168 k. In general. Most Cited Cases Fact that damages later exceed jurisdiction [4] Judgment 228 140

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228 Judgment James Sean Healey, Galveston, for defendant. 228IV By Default 228IV(B) Opening or Setting Aside Default Before EVANS, C.J., and WARREN and DUG- 228k140 k. Judgments which may be GAN, JJ. opened or set aside. Most Cited Cases

Judgment 228 143(2) OPINION DUGGAN, Justice. 228 Judgment This is an appeal from an order dismissing ap- 228IV By Default pellant's suit in County Court No. 2 of Galveston 228IV(B) Opening or Setting Aside Default County for want of jurisdiction on the grounds that 228k143 Excuses for Default plaintiffs' aggregate damages exceeded the court's 228k143(2) k. Necessity for excuse. jurisdiction, and that the family district court would Most Cited Cases have exclusive jurisdiction over the suit. Judgment 228 146 Appellant's suit involved a dispute over person- 228 Judgment al property following divorce. The divorce decree 228IV By Default awarded custody of the parties' two children to the 228IV(B) Opening or Setting Aside Default appellant father and ordered the appellee mother to 228k146 k. Prejudice from judgment. deliver to appellant individually, and as trustee for Most Cited Cases the children's benefit, appellant's coin collection, A defendant is entitled to have a postanswer other personal property (including a dining room default judgment against it vacated and a new trial set, bunk beds, and a television set), and money ordered if defendant establishes that failure to at- from savings accounts. Appellant alleged that ap- tend trial was not due to conscious indifference on pellee rendered the property largely unusable and its part, but accident or mistake, proves a meritori- sold appellant's coin collection. ous defense, and demonstrates that granting of a Appellant filed the present suit in County Court new trial would occasion no delay or otherwise in- No. 2 of Galveston County, a legislatively created jure plaintiff. court of special jurisdiction. In his original petition, [5] Judgment 228 151 the appellant did not allege a specific amount of damages, but stated that the damages were within 228 Judgment the court's jurisdiction. The parties' divorce had 228IV By Default been granted less than a month before in the 306th 228IV(B) Opening or Setting Aside Default Family District Court in Galveston. Under enforce- 228k151 k. Form and requisites of applic- ment provisions of the Texas Family Code, Sec- ation in general. Most Cited Cases tions 3.70–3.76 (Vernon 1987), such suits are now Response of defendant to postanswer default brought in the same court that decreed the divorce; judgment, allegedly insufficient for failure to satis- however, these provisions did not become effective fy Craddock factors for filing an unverified motion until September 1, 1983, four months after this suit for new trial, did not preclude trial court from va- was filed in the county court. Acts 1983, 68th Leg., cating postanswer default judgment and ordering a p. 2350, ch. 424, sec. 2, eff. Sept. 1, 1983. In a new trial. post-answer default judgment, the trial court awar- ded appellant $2,568.20 individually, and awarded *798 Kenneth C. Kaye, League City, for plaintiff. judgment for each child in the amount of $9,802.29,

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representing *799 savings account funds and the ularly. Plaintiff's amended petition was filed value of destroyed property. September 11, 1984, 16 months after the trial court ruled that it had jurisdiction, and set out total dam- Thereafter, the appellee filed her unverified ages of $21,935.53. motion for new trial. The trial court granted the mo- tion for new trial and entered its order dismissing The amended pleading set out each of the items appellant's suit for want of jurisdiction. referred to in plaintiff's original petition, but placed a value on each item. Under “L. All certificates of In its order of dismissal for want of jurisdic- deposit and United States Savings Bonds belonging tion, the trial court ruled that: (1) the amount in to, in the name of, or owned by the children,” controversy exceeded the maximum jurisdiction of plaintiff designated a value of $18,145.90. But for the trial court, and (2) the exclusive jurisdiction be- the fact that the sum stated was for a dual claim, the longed to the 306th Family District Court of Galve- amount sought was on its face over the $10,000 jur- ston County. isdiction of the court at the times of filing both the suit and the amended petition. Appellant's first point of error contends that the Tex.Rev.Civ.Stat.Ann. art. 1970 –3426 (Vernon trial court erred in dismissing his suit for want of 1979). There was no further contest to jurisdiction jurisdiction on the ground that it did not have mon- until this appeal. etary jurisdiction in the case. He urges that jurisdic- tion attaches when a case is filed, and that once at- In the judgment entered June 3, 1985, damages tached, jurisdiction is not destroyed when damages were awarded to appellant in the sum of $2,568.20, exceed the jurisdictional authority of the court, ab- and to each of the two children in an amount of sent bad faith on the part of plaintiff in the original $9,802.29. pleadings. Appellant relies on the holdings in Standard [1] When a suit is correctly filed in a court of Fire Insurance Co. and Flynt v. Garcia, 587 proper jurisdiction at the time of filing, the fact that S.W.2d 109 (Tex.1979), to protect the earlier judg- damages later exceed the jurisdiction does not pre- ment entered in his favor. In Standard Fire Insur- vent the court from rendering judgment. Standard ance Co. v. Stigger, the carrier filed in the county Fire Insurance Co. v. Stigger, 635 S.W.2d 667 court to appeal an Industrial Accident Board award, (Tex.App.—Dallas 1982, no writ). an amount within the court's jurisdictional limits. Stigger filed a counterclaim and ultimately re- In his original petition, appellant alleged un- covered a sum greater than the court's jurisdiction. specified damages within the jurisdiction of the The court held that the amount of the unspecified court. The court's jurisdiction at the time was from counterclaim did not destroy the court's jurisdiction $500 to $10,000 under Tex.Rev.Civ.Stat.Ann. art. since the amount in controversy in a worker's com- 1970–342b (Vernon 1979). The maximum jurisdic- pensation suit is the amount of the board's award, tion of the court is now $50,000 ( unless a different amount of the worker's claim can Tex.Rev.Civ.Stat.Ann. art. 1970–342b; amended be determined in dollars and cents. Since Stigger's acts 1985, 69th Leg., p. 2133, ch. 247, section 3, ef- counterclaim was not ascertainable, but was an un- fective August 26, 1985). Appellee filed special ex- specified amount within the jurisdictional limits of ceptions to the jurisdiction at the time suit was the court, jurisdiction was not defeated. filed, and a hearing was held. One month after hear- ing appellee's special exception, the trial court ruled In Flynt, the Supreme Court considered sub- that it had jurisdiction over the matter and ordered sequent trial amendments following an original that appellant amend to plead damages more partic- stated amount in controversy which was within the

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court's jurisdictional limits. The court noted the forcement sections relating to property were en- general rule that “where jurisdiction is once law- acted; he was, therefore, free to select the forum. fully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jur- Appellant's second point of error is sustained. isdiction,” 587 S.W.2d at 109–110. Subsequent In response to the “post-answer default judg- amendments, therefore, do not destroy jurisdiction. ment,” Stoner v. Thompson, 578 S.W.2d 679, 682 The court *800 noted: “This is especially so where (Tex.1979), the appellee filed an unverified motion there is no allegation of bad faith or fraud in invok- for new trial. Appellant contends in his third point ing the jurisdiction of the court.” 587 S.W.2d at of error that this response was inadequate and that 109–110. the court erred in granting a new trial. Plaintiff's claims, like Stigger's, “sought bene- [4][5] Post-answer defaults and non-ap- fits in an unspecified amount within the jurisdic- pearance default judgments are treated similarly. tional limits of the court.” Standard Fire Insurance Farley v. Clark Equipment Co., 484 S.W.2d 142, Co., 635 S.W.2d at 669. (Tex.Civ.App.—Amarillo 1972, writ ref'd n.r.e.). It [2] We hold that the trial court was bound by is well settled that it is an abuse of discretion to its determination that it had jurisdiction based on deny a new trial where the guidelines of Craddock the pleading of an unspecified amount in plaintiffs' v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d original petition. There were three parties and, 124 (Tex.1939) have been met. A defendant is en- viewing their claims as individual claims, even un- titled to have a post-answer default judgment der the judgment rendered, each came within the against it vacated and a new trial ordered if the de- jurisdiction of the court. fendant: (1) establishes that failure to attend trial was not due to conscious indifference on its part, Appellant's first point of error is sustained. but accident or mistake; (2) proves a meritorious defense; and (3) demonstrates that the granting of a Appellant's second point of error urges that new trial would occasion no delay or otherwise in- Texas law does not require exclusive jurisdiction in jure plaintiff. Stone Resources, Inc. v. Barnett, 661 the family law court to enforce the terms of a di- S.W.2d 148 (Tex.App.—Houston [1st Dist.] 1983, vorce decree except for contempt, child custody, no writ). However, the appellant has not cited any and visitation. cases, nor have we found any cases, which hold that a trial court may not grant a new trial unless these The trial court relied upon Tex.Fam.Code Ann. factors are satisfied. The complete absence of au- sec. 3.70 (Vernon 1987), which was adopted after thority for the proposition that it is error for a court the suit was filed. The divorce was alleged to have to set aside a default judgment when the Craddock been granted one month before this suit was filed in factors have not been met is partially explained by June 1983, and those sections of the Family Code the fact that orders setting aside default judgments concerning enforcement of matters pertaining to are generally not subject to review. Warren v. Wal- property in divorce decrees did not become effect- ter, 409 S.W.2d 887 (Tex.Civ.App.—Tyler 1966, ive until September 1, 1983. writ ref'd n.r.e.) per curiam, 414 S.W.2d 423 [3] Appellant, not yet having the benefit of (Tex.1967). We decline to find error in the trial Family Code section 3.70 to enforce property pro- court's action setting aside the post-answer default visions, had the right to enforce his judgment in a judgment. court other than that which granted the divorce. The third point of error is overruled. Appellant's lawsuit was filed before the en-

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The judgment dismissing appellant's suit is set aside. The order setting aside the default judgment is affirmed and the cause is remanded to County Court No. 2 of Galveston County for a new trial. We note as well that the trial court, should it choose to do so, may transfer the suit to the Family District Court with the consent of the judge of the latter court. Tex.Rev.Civ.Stat.Ann. art. 1970–342, sec. 3a , and art. 1970–342b, sec. 2(c) (Vernon 1987).

Tex.App.–Hous. [1 Dist.],1987. Blake v. Blake 725 S.W.2d 797

END OF DOCUMENT

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thority of court to decide case.

Court of Appeals of Texas, [2] Appeal and Error 30 185(1) Houston (14th Dist.). 30 Appeal and Error COLOR TILE, INC., Appellant, 30V Presentation and Reservation in Lower v. Court of Grounds of Review Ron RAMSEY, Appellee. 30V(B) Objections and Motions, and Rulings Thereon No. 14–94–00285–CV. 30k185 Organization and Jurisdiction of June 15, 1995. Lower Court Rehearing Overruled Aug. 24, 1995. 30k185(1) k. In general. Most Cited Cases Store brought breach of contract action against customer for failure to pay. The Justice Court Courts 106 37(1) entered judgment for store. Customer appealed judgment to County Court and amended his plead- 106 Courts ings to assert counterclaims for breach of contract, 106I Nature, Extent, and Exercise of Jurisdiction Deceptive Trade Practice Act (DTPA) violations, in General fraud and breach of warranty. The County Civil 106I(A) In General Court at Law No. 2, Harris County, Kenneth 106k37 Waiver of Objections Pacetti, J., entered judgment awarding customer 106k37(1) k. In general. Most Cited damages for breach of warranty, attorney fees plus Cases attorney fees for appeal but did not award store Subject matter jurisdiction may not be waived damages on breach of contract claim. Store ap- by parties, and may be raised for first time on ap- pealed. The Court of Appeals, Fowler, J., held that: peal. (1) county court lacked subject matter jurisdiction over counterclaim alleging breach of contract, and [3] Appeal and Error 30 782 (2) appellate sanctions for delay were inappropri- 30 Appeal and Error ate. 30XIII Dismissal, Withdrawal, or Abandonment Affirmed in part, reversed in part and counter- 30k779 Grounds for Dismissal claims dismissed. 30k782 k. Want of jurisdiction. Most Cited Cases West Headnotes If trial court lacks subject matter jurisdiction, appellate court must reverse judgment of trial court, [1] Courts 106 4 and dismiss cause of action entirely.

106 Courts [4] Justices of the Peace 231 141(2) 106I Nature, Extent, and Exercise of Jurisdiction in General 231 Justices of the Peace 106I(A) In General 231V Review of Proceedings 106k3 Jurisdiction of Cause of Action 231V(A) Appeal and Error 106k4 k. In general. Most Cited Cases 231k141 Appellate Jurisdiction Subject matter jurisdiction is essential to au- 231k141(2) k. Jurisdiction dependent

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on jurisdiction of lower court in general. Most and must independently comport with court's juris- Cited Cases diction. Vernon's Ann.Texas Rules Civ.Proc., Rule Appellate jurisdiction of county court is con- 97. fined to jurisdictional limits of justice court, and county court has no jurisdiction over appeal unless [8] Courts 106 121(7) justice court originally had jurisdiction. Vernon's 106 Courts Ann.Texas Rules Civ.Proc., Rule 574b. 106III Courts of General Original Jurisdiction [5] Courts 106 30 106III(A) Grounds of Jurisdiction in General 106k119 Amount or Value in Controversy 106 Courts 106k121 Matter in Dispute, or Amount 106I Nature, Extent, and Exercise of Jurisdiction or Value Claimed or Involved in General 106k121(7) k. Amount as affected 106I(A) In General by set-off or counterclaim. Most Cited Cases 106k30 k. Loss or divestiture of jurisdic- Although customer's original breach of contract tion. Most Cited Cases counterclaim was within jurisdictional limits of Once jurisdiction is lawfully and properly ac- justice court, customer pleaded himself out of court quired, no subsequent fact or event in particular when he filed counterclaim on appeal in county case serves to defeat jurisdiction. court demanding relief of $5,000 which was clearly in excess of $2,500 jurisdictional limit of justice [6] Courts 106 26(1) court; therefore, county court lacked subject matter jurisdiction over counterclaim. V.T.C.A., Govern- 106 Courts ment Code § 27.031, Vernon's Ann.Texas Rules 106I Nature, Extent, and Exercise of Jurisdiction Civ.Proc., Rule 97. in General 106I(A) In General [9] Costs 102 260(4) 106k26 Scope and Extent of Jurisdiction in General 102 Costs 106k26(1) k. In general. Most Cited 102X On Appeal or Error Cases 102k259 Damages and Penalties for Frivol- (Formerly 106k26) ous Appeal and Delay Trial court has no jurisdiction to hear claim 102k260 Right and Grounds brought by either plaintiff or defendant that is not 102k260(4) k. What constitutes frivol- within its subject matter jurisdiction. ous appeal or delay. Most Cited Cases Appellate courts only assess sanctions when an [7] Courts 106 121(7) appeal could have been taken only for purposes of delay and where no reasonable hope of reversal ex- 106 Courts ists. Rules App.Proc., Rule 84. 106III Courts of General Original Jurisdiction 106III(A) Grounds of Jurisdiction in General [10] Costs 102 260(1) 106k119 Amount or Value in Controversy 106k121 Matter in Dispute, or Amount 102 Costs or Value Claimed or Involved 102X On Appeal or Error 106k121(7) k. Amount as affected 102k259 Damages and Penalties for Frivol- by set-off or counterclaim. Most Cited Cases ous Appeal and Delay Counterclaims are judged on their own merits 102k260 Right and Grounds

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102k260(1) k. In general. Most Cited tion. Cases In determining whether sanctions for delay are PRIOR POSTURE AND BRIEF FACTS appropriate, Court of Appeals views record from Ron Ramsey contracted with Color Tile to in- point of view of advocate at time appeal was taken stall a tile floor in his home. Ramsey was unhappy to determine whether reasonable grounds existed to with Color Tile's work, and refused to pay the bal- believe case should be reversed. Rules App.Proc., ance owed on his contract. Color Tile filed suit Rule 84. against him in justice court for the balance owed—about $2000. Ramsey answered, asserting [11] Costs 102 260(4) the defenses of failure of consideration and fraud. Ramsey also counterclaimed for breach of warranty 102 Costs and misrepresentation. Color Tile obtained a 102X On Appeal or Error $1179.50 judgment in the justice court. 102k259 Damages and Penalties for Frivol- ous Appeal and Delay Ramsey appealed the judgment to county court 102k260 Right and Grounds and amended his pleadings to assert counterclaims 102k260(4) k. What constitutes frivol- for: (1) breach of contract, (2) DTPA, (3) fraud, and ous appeal or delay. Most Cited Cases (4) breach of warranty. In his answer and counter- Sanctions for delay because no reasonable hope claim, Ramsey pled for damages of $5000 for the of reversal existed were inappropriate where court breach of contract,*622 or alternatively for DTPA sustained point of error and reversed trial court's damages including triple damages, or alternatively judgment. Rules App.Proc., Rule 84. for fraud damages. In county court, the parties were realigned so that Ramsey was styled the plaintiff, *621 Quentin D. Brogdon, Houston, for appellant. and Color Tile the defendant. The jury awarded Ramsey $7756.94 in damages for breach of war- Stephen Schechter, Houston, for appellee. ranty, of which the first $1000 was trebled under the DTPA. The jury also found Color Tile breached FN* Before YATES, FOWLER and DRAUGHN, the warranty “knowingly,” and that Ramsey was JJ. entitled to $1000 in additional damages. Further, the jury awarded Ramsey $20,000 in attorney's fees, plus attorney's fees for appeals. The jury FN* The Honorable Joe L. Draughn sitting awarded Color Tile no damages on its breach of by assignment. contract action.

OPINION Color Tile brings five points of error, alleging FOWLER, Justice. that (1) the county court lacked subject matter juris- This breach of contract suit comes to us on ap- diction over the appeal; (2) the trial court erred in peal from county court, which heard an appeal from allowing Ramsey to call a surprise fact witness; (3) justice court. We find the county court lacked sub- the trial court erred in submitting DTPA questions ject matter jurisdiction over appellee's counter- to the jury because Ramsey did not follow the claims and reverse the trial court's judgment in his DTPA's notice provisions; and (4) the evidence is favor and dismiss his causes of action. However, insufficient to support the amount of attorney's fees FN1 we affirm the take-nothing judgment against appel- awarded. Ramsey brings two cross points, al- lant, because appellant did not bring a point of error leging that the trial court erred in allowing certain challenging the verdict on its breach of contract ac- photographs into evidence, and that this Court should sanction Color Tile under TEX.R.APP.P. 84

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for bringing a frivolous appeal. diction. At the time this suit was filed, justice courts had jurisdiction in cases where the amount in FN1. Under the fifth point of error, Color controversy was not more than $2500, excluding in- Tile requests a remittitur of the attorney's terest. TEX.GOV'T CODE ANN. § 27.031 (Vernon fees. FN2 1988).

SUBJECT MATTER JURISDICTION FN2. Amended by Acts 1991, 72nd Leg., Color Tile contends in its first point of error ch. 776, § 2, effective September 1, 1991 that the county court lacked subject matter jurisdic- (current version at TEX.GOV'T CODE tion over Ramsey's claims, because the amount in ANN. § 27.031 (Vernon Supp.1995), controversy exceeded the jurisdictional limits of the providing justice court has jurisdiction justice court, where the suit was originally filed. over matters where amount in controversy Ramsey counters that the jurisdiction of the justice is not more than $5000). court is determined by the plaintiff's petition at the time the suit is filed, and later events cannot serve [5][6][7] Ramsey claims that the county court to divest the court of jurisdiction. had jurisdiction over the entire suit between Color Tile and Ramsey, including Ramsey's counter- [1][2][3] Subject matter jurisdiction is essential claims, because Color Tile's original petition was to the authority of a court to decide a case. Texas within the jurisdictional limits of the justice court. Ass'n of Business v. Texas Air Control Bd., 852 We agree with the general proposition Ramsey as- S.W.2d 440, 443 (Tex.1993). Subject matter juris- serts—that the plaintiff's original petition determ- diction may not be waived by the parties, and may ines the jurisdiction of the court over the claims be- be raised for the first time on appeal. Id. at 445; fore it. “Where jurisdiction is once lawfully and Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, properly acquired, no subsequent fact or event in 547 (Tex.), cert. denied 502 U.S. 824, 112 S.Ct. 88, the particular case serves to defeat jurisdiction.” 116 L.Ed.2d 60 (1991). If a trial court lacks subject Flynt v. Garcia, 587 S.W.2d 109, 109–110 matter jurisdiction, the appellate court must reverse (Tex.1979); *623 Blake v. Blake, 725 S.W.2d 797, the judgment of the trial court, and dismiss the 799 (Tex.App.—Houston [1st Dist.] 1987, no writ). cause of action entirely. City of Garland v. Louton, In spite of this general rule, however, a trial court 691 S.W.2d 603, 605 (Tex.1985). See also Mont- has no jurisdiction to hear a claim brought by either gomery Elevator Co. v. Tarrant County, 604 a plaintiff or a defendant that is not within its sub- S.W.2d 363, 365 (Tex.Civ.App.—Fort Worth 1980, ject matter jurisdiction. As stated in Rule 97(c) of no writ) (dismissing cause of action when counter- the Texas Rules of Civil Procedure, a counterclaim claim exceeded jurisdictional limits of county may exceed the amount of relief sought by the op- court). posing party, so long as the subject matter is within the jurisdiction of the court. TEX.R.CIV.P. 97 [4] An appeal from a justice court judgment is (emphasis added). Clearly, then, counterclaims are tried de novo in the county or district court. judged on their own merits and must independently TEX.R.CIV.P. 574b. However, the appellate juris- comport with a court's jurisdiction. Clary Corp. v. diction of the county court is confined to the juris- Smith, 886 S.W.2d 570, 572–73 (Tex.App.—Fort dictional limits of the justice court, and the county Worth 1994, writ filed). court has no jurisdiction over the appeal unless the justice court had jurisdiction. Goggins v. Leo, 849 [8] Here, while Color Tile's original breach of S.W.2d 373, 375 (Tex.App.—Houston [14th Dist.] contract suit was within the jurisdictional limits of 1993, no writ). As creatures of statute, justice the justice court, Ramsey “pleaded himself out of courts are governed by a legislative grant of juris- court” when he filed a counterclaim on appeal in

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the county court demanding relief clearly in excess place his entire tile floor, not because of the pas- of the jurisdictional limits of the justice court. See sage of time. Furthermore, unlike the plaintiff in Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 Flynt, who originally pled for damages within the (Tex.1989) (citing Richardson v. First Nat'l Life county court's jurisdiction, Ramsey never filed a Ins. Co., 419 S.W.2d 836, 839 (Tex.1967)). As suc- pleading requesting damages within the justice cinctly stated by the Galveston Court of Appeals: court's jurisdiction. The first pleading he filed re- quested damages in excess of the justice court's jur- It thus clearly appears that the amount sought by isdiction. appellee in his cross-action ... is in excess of the maximum jurisdictional limits of the justice Finally, we find no merit in Ramsey's argument court, and, as the jurisdiction of said county court that he initially did not expect his claim to exceed at law to which this suit was carried by appeal $2500, but because of the unavailability of match- was appellate and not original, the court acquired ing tile, he had to sue to replace the entire floor at no jurisdiction to render the judgment from an increased cost. Ramsey's focus on his own ex- which this appeal was prosecuted. pectations is misplaced. As noted earlier, the pur- pose of the pleadings is to invoke the jurisdiction of United Finance Corp. v. Quinn, 149 S.W.2d the court. The invocation of jurisdiction occurs not 148, 149 (Tex.Civ.App.—Galveston 1941, writ as a result of the intent of the parties, but because dism'd). See also Kitchen Designs, Inc. v. Wood, of what is contained on the face of the pleadings. 584 S.W.2d 305, 307 (Tex.Civ.App.—Texarkana Ramsey's original written pleading in this case, by 1979, writ ref'd n.r.e.), a case factually identical to requesting $5000 in damages, showed on its face the case before us, except that the original suit in that it was not within the subject matter jurisdiction that appeal was filed in county court. of the justice court.

Ramsey contends that the only reason his claim We therefore sustain appellant's first point of exceeded the jurisdictional limits of the justice error and reverse the judgment of the county court court was due to the passage of time, because the as to Ramsey and dismiss Ramsey's causes of ac- ceramic tile die lot that matched Ramsey's tile was tion, because the county court lacked the power to no longer available and it therefore became neces- adjudicate his claims. City of Garland, 691 S.W.2d sary to sue for the replacement cost of the entire at 605; Kitchen Designs, 584 S.W.2d at 307. floor, rather than just the damaged individual tiles. Citing Flynt v. Garcia, 587 S.W.2d 109, 110 *624 Color Tile did not specifically appeal the (Tex.1979), he points out that when the original suit take-nothing judgment rendered against it by the is within the jurisdictional limits of the court, sub- county court on its breach of contract action. We sequent amendments that seek additional damages therefore affirm the take-nothing judgment against accruing because of the passage of time will not de- Color Tile. Id. feat the jurisdiction of the court. This case does not fall within the Flynt exception. When the suit in Because of our disposition of Color Tile's first Flynt was brought originally, the damages reques- point of error, it is unnecessary to address Color ted were within the court's jurisdiction. While the Tile's remaining points and Ramsey's first cross suit was still pending, however, additional note point, which alleged error by the trial court in ad- payments became due and interest accrued, together mitting photographs during the trial. We shall, pushing the damages over the county court's juris- however, briefly discuss Ramsey's second cross dictional limit. Ramsey's damages, on the other point. hand, were over the county court's jurisdictional RAMSEY'S CROSS POINT FOR SANCTIONS limit from the outset because he was having to re-

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UNDER TEXAS RULE OF APPELLATE PRO- CEDURE 84 [9][10] In his second cross point, Ramsey asks this Court to award him sanctions pursuant to TEX.R.APP.P. 84. Rule 84 provides that the appel- late court may award damages when the appellant takes an appeal for delay and without sufficient cause. However, appellate courts only assess sanc- tions where an appeal could have been taken only for purposes of delay and where no reasonable hope of reversal exists. Valenzuela v. St. Paul Ins. Co., 878 S.W.2d 667, 671 (Tex.App.—San Antonio 1994, no writ). In determining whether sanctions for delay are appropriate, we view the record from the point of view of the advocate at the time the ap- peal was taken to determine whether reasonable grounds existed to believe the case should be re- versed. Olmos v. Pecan Grove Mun. Util. Dist., 857 S.W.2d 734, 742 (Tex.App.—Houston [14th Dist.] 1993, no writ) (quoting Ambrose v. Mack, 800 S.W.2d 380, 383 (Tex.App.—Corpus Christi 1990, writ denied)). We apply Rule 84 only with prudence, caution, and after careful deliberation. Francis v. Marshall, 841 S.W.2d 51, 54 (Tex.App.—Houston [14th Dist.] 1992, no writ).

[11] Appellate courts are reluctant to sanction parties except in truly egregious circumstances. Clearly, sanctions are inappropriate in this case, as we are sustaining Color Tile's point of error and re- versing the trial court's judgment. We therefore deny sanctions under Rule 84 and overrule Ram- sey's second cross point.

The judgment of the trial court in favor of ap- pellee is REVERSED and his causes of action are ordered DISMISSED. The judgment of the trial court that appellant take nothing is AFFIRMED.

Tex.App.–Houston [14 Dist.,1995. Color Tile, Inc. v. Ramsey 905 S.W.2d 620

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Summary judgment hearing, in seller's action to collect amount due under contract for sale of Court of Appeals of Texas, goods, was “trial,” for purposes of rule which re- Dallas. quired that no amended pleadings be filed within seven days of “trial,” except on leave of court. Ver- ENERGO INTERNATIONAL CORPORATION, non's Ann.Texas Rules Civ.Proc., Rule 63. Appellant, v. [2] Judgment 228 186 MODERN INDUSTRIAL HEATING, INC., Ap- pellee. 228 Judgment 228V On Motion or Summary Proceeding No. 05–85–01289–CV. 228k182 Motion or Other Application Oct. 30, 1986. 228k186 k. Hearing and Determination. Most Cited Cases Seller brought action against buyer to collect Amended answer, which was filed on day of amount due in connection with sale of goods. The summary judgment hearing without leave of court, 296th District Court, Collin County, Verla Sue Hol- was not properly on file at time of summary judg- land, J., granted seller's motion for summary judg- ment hearing, in seller's action to collect amount ment. Buyer appealed. The Court of Appeals, due under contract for sale of goods; therefore, trial Scales, J., held that: (1) buyer's amended answer court was not required to consider amended answer was not properly before the trial court; (2) it was in summary judgment hearing. Vernon's Ann.Texas not abuse of discretion for trial court to fail to con- Rules Civ.Proc., Rules 63, 166–A. sider buyer's amended answer; (3) affirmative de- fense of offset, which was contained in amended [3] Sales 343 354(11) answer, was not properly before trial court; and (4) whether third party owed buyer reimbursement for 343 Sales sales tax paid was irrelevant to buyer's liability un- 343VII Remedies of Seller der contract with seller. 343VII(E) Actions for Price or Value 343k352 Pleading Affirmed. 343k354 Plea or Answer, and Sub- sequent Pleadings Akin, J., dissented and filed opinion. 343k354(11) k. Amendment. Most West Headnotes Cited Cases Docket entry could not be used to supply fact [1] Sales 343 354(11) that trial court gave buyer permission to file amended answer after summary judgment hearing, 343 Sales in seller's action to collect amount due under con- 343VII Remedies of Seller tract for sale of goods. Vernon's Ann.Texas Rules 343VII(E) Actions for Price or Value Civ.Proc., Rule 166–A. 343k352 Pleading 343k354 Plea or Answer, and Sub- [4] Sales 343 354(11) sequent Pleadings 343k354(11) k. Amendment. Most 343 Sales Cited Cases 343VII Remedies of Seller 343VII(E) Actions for Price or Value

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343k352 Pleading properly pled and thus not properly before court in 343k354 Plea or Answer, and Sub- summary judgment hearing, in seller's action to col- sequent Pleadings lect amount due under contract for sale of goods, 343k354(11) k. Amendment. Most where defense was contained in amended answer, Cited Cases which was filed on day of summary judgment hear- Even if docket entry could be used to supply ing without leave of the court. Vernon's Ann.Texas fact that trial court gave buyer permission to file Rules Civ.Proc., Rule 166–A. amended answer after summary judgment hearing, in seller's action to collect amount due under con- [7] Taxation 371 3707 tract for sale of goods, docket entry did not indicate 371 Taxation that trial court accepted and considered amended 371IX Sales, Use, Service, and Gross Receipts answer, for purposes of placing amended answer Taxes properly before court. Vernon's Ann.Texas Rules 371IX(I) Collection and Enforcement Civ.Proc., Rule 166–A. 371k3706 Collection by Sellers or Others [5] Sales 343 354(11) 371k3707 k. In General. Most Cited Cases 343 Sales (Formerly 371k1338.1, 371k1338) 343VII Remedies of Seller Even if third party owed buyer reimbursement 343VII(E) Actions for Price or Value for sales tax due on goods sold to buyer, that fact 343k352 Pleading would not affect buyer's liability to seller for sales 343k354 Plea or Answer, and Sub- tax, where record indicated that buyer had agreed to sequent Pleadings assume liability for payment of any tax due on sale 343k354(11) k. Amendment. Most of goods, if such sales were not exempt from sales Cited Cases tax under buyer's exemption permit, where the It was not abuse of discretion for trial court to comptroller of public accounts determined that such fail to consider buyer's amended answer, which was sales were not exempt, and where seller paid taxes filed, without leave of court, on day of summary due on sale of such goods to comptroller. judgment hearing, in seller's action to collect amount due under contract for sale of goods, where *150 Richard Parker, Michael C. Prior, Houston, there was no indication that trial court gave permis- for appellant. sion to file amended pleading after summary judg- J. Michael Weston, Leonard J. McDonald, Jr., Dal- ment hearing. Vernon's Ann.Texas Rules Civ.Proc., las, for appellee. Rule 166–A.

[6] Sales 343 354(11) FN1 Before AKIN, SCALES and CARVER , JJ. 343 Sales 343VII Remedies of Seller FN1. The Honorable Spencer Carver, 343VII(E) Actions for Price or Value Justice, retired, Court of Appeals, Fifth 343k352 Pleading District of Texas at Dallas, sitting by as- 343k354 Plea or Answer, and Sub- signment. sequent Pleadings 343k354(11) k. Amendment. Most SCALES, Justice. Cited Cases Energo International Corporation (Energo) ap- Buyer's affirmative defense of offset was not

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peals from a summary judgment rendered in favor The judgment sought shall be rendered forthwith of Modern Industrial Heating, Inc. (Modern). En- if the pleadings, depositions, answers to interrog- ergo contends that the trial court erred in granting atories, admissions, affidavits, stipulations of the Modern's motion for summary judgment because parties, and authenticated or certified public re- Energo's amended answer with supporting affi- cords, if any, on file at the time of the hearing, or davits raised a material fact issue on Energo's claim filed thereafter and before judgment with permis- of offset, and because a material fact issue was sion of the court, *151 show that, except as to the raised regarding Energo's liability to Modern on amount of damages, there is no genuine issue as sales taxes due to the State of Texas on goods En- to any material fact and the moving party is en- ergo purchased from Modern. We affirm. titled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or Modern brought suit against Energo seeking to any other response. recover $3,801.99 due on an account and for $12,300 in sales taxes due on goods sold to Energo. TEX.R.CIV.P. 166–A (emphasis added). Thus, After Energo answered generally denying Modern's we first determine if Energo's amended answer was claim, Modern filed a motion for summary judg- “on file at the time of the hearing.” Rule 63 ment. Energo answered and filed supporting affi- provides that no amended pleadings shall be filed davits. In its answer to Modern's motion, Energo within seven days of trial, except on leave of court. denied that it owed Modern $3,801.99, alleged that See TEX.R.CIV.P. 63. A summary judgment hear- Modern owed Energo $63,750.00, and alleged that ing is a “trial” under Rule 63. See Claude Regis any account which showed that Energo owed Mod- Vargo Enterprises, Inc. v. Bacarisse, 578 S.W.2d ern $3,801.99 had not taken into account the 524, 529 (Tex.Civ.App.—Houston [14th Dist.] $63,750.00 that Modern owed Energo. On the day 1979, writ ref'd n.r.e.). The record shows that En- of the hearing on Modern's summary judgment mo- ergo's amended answer was filed on the day of the tion, Energo filed an amended answer to Modern's summary judgment hearing. The parties disagree as petition generally denying Modern's claim and al- to exactly when the answer was filed on that day. leging offset of $63,750.00. The trial court sub- However, there is no question that Energo did not sequently granted Modern's motion and entered obtain leave of court before the summary judgment judgment in favor of Modern. hearing. Consequently, under Rule 63, even if the answer was filed before the summary judgment In its first point of error, Energo contends that hearing as Energo contends, it was not properly “on the trial court erred in granting Modern's motion for file at the time of the hearing” as required by Rule summary judgment because Energo's amended ori- 166–A. ginal answer and supporting affidavit raised a ma- terial fact issue concerning offset. Modern argues [3] We next determine whether, under Rule that the affirmative defense of offset was not prop- 166–A, the amended answer was filed “with per- erly before the court because Energo's amended an- mission of the court” after the summary judgment swer was not on file at the time of the hearing and hearing. Energo argues that the docket sheet entry, Energo did not obtain the trial court's permission to which reads, “Pltfs MSJ. Argued, under advisement file the amended answer, and because Energo's affi- to 6/30/85 for all pleadings to be amended (trial davit was insufficient to “raise a contest” to Mod- judge's initials),” indicates that the trial court ac- ern's motion for summary judgment. cepted Energo's amended answer. We disagree.

[1][2] Rule 166–A of the Texas Rules of Civil A docket entry forms no part of the record Procedure provides: which may be considered; it is a memorandum made for the trial court and clerk's convenience.

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Azopardi v. Hollebeke, 428 S.W.2d 167, 168 We disagree with the dissent's reasoning (Tex.Civ.App.—Waco 1968, no writ); Restelle v. for two reasons. First, we do not believe Williford, 364 S.W.2d 444, 445 that this is one of the “certain situations” (Tex.Civ.App.—Beaumont 1963, writ ref'd n.r.e.). envisioned by the supreme court when it FN2 Consequently, there is no indication in the re- announced in N–S–W Corp. that a cord that permission of the court was requested or “docket entry may supply facts in certain *152 obtained to file the amended answer and that situations.” The supreme court was the amended answer was properly before the court. merely recognizing a limited exception to the holding in Azopardi and Restelle FN2. The dissent cites N–S–W Corp. v. —that docket entries may be used to cor- Snell, 561 S.W.2d 798 (Tex.1977), as rect clerical errors in judgments or or- overruling the above-cited cases by hold- ders. In fact, the cases cited by the dis- ing that “a docket entry may be considered sent for the proposition that a docket to supply facts in certain situations.” entry is part of the record and can be N–S–W Corp. involved a side-by-side considered on appeal are cases where comparison of a docket sheet entry and a facts supplied by docket sheet entries final judicial order. The court held that the were used to correct clerical error in a docket entry must yield to the final judicial judgment or to determine the meaning of order because a “docket entry may supply words used in a judgment. We do not facts in certain situations, but it cannot be have a case of clerical error before us. used to contradict or prevail over a final judicial order.” N–S–W Corp., 561 S.W.2d Second, and more importantly, docket at 799. entries are inherently unreliable. For purposes of defeating the final summary The dissent argues that we have one of judgment for Modern under the dissent's the “certain situations” before us so that analysis, Energo's amended pleading the docket entry may be used to supply would rest entirely upon a fact supplied the fact that the trial judge gave Energo from an unclear docket entry. Implicit in permission to file an amended pleading the N–S–W Corp. holding is an aware- after the summary judgment hearing. ness of the dangers in using an informal The dissent apparently interprets the docket entry to defeat a formal court or- holding in N–S–W Corp. that a docket der. The dangers of unreliability are entry cannot be used to prevail over a fi- equally apparent here; Energo attempts nal judicial order as applying only where to defeat a final summary judgment by a litigant, in a side-by-side comparison relying on a docket entry which pur- of the docket entry and the final judg- portedly gave it permission to file un- ment, attempts to defeat or alter the ex- timely amended pleadings, and in light press terms of the judgment. The dissent of those pleadings, then argues that sum- urges that in other situations, such as in mary judgment was improperly granted. the present case, facts shown by the docket entry may be used, even if the [4][5][6] Further, even if the docket sheet were result is to defeat the final judgment, so considered, we hold that the entry does not indicate long as the docket entry, in a side- that the trial court accepted and considered En- by-side comparison, does not directly ergo's amended answer. The consideration of plead- defeat the final judgment. ings filed in the interim between hearing and judg-

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ment is within the trial court's discretion. Brown v. taxes claimed due.” The affidavit of the president Prairie View A & M University, 630 S.W.2d 405, of Ferrotherm Corporation states “[t]hat the sales 411 (Tex.App.—Houston [14th Dist.] 1982, writ taxes due on material purchased from Energo Inter- ref'd n.r.e.). Energo has not attempted to show that national Corporation which had been purchased by the trial court abused its discretion in not consider- [Energo] from [Modern] are being paid directly to ing the amended answer. The trial court is charged the State of Texas by Ferrotherm Corporation pur- with the duty only of considering the record as it suant to an agreement between the State of Texas properly appears before it when the summary judg- and Ferrotherm Corporation.” ment motion is heard. Id. Accordingly, we hold that the amended answer was not properly before the Even assuming that these conclusory state- court, that there is no showing of an abuse of dis- ments are competent summary-judgment proof, cretion by the trial court in not considering the they clearly do not raise a fact issue as to Energo's amended answer, and that the affirmative defense liability for sales taxes under the contract between of offset was not properly pled, and therefore, was Energo and Modern. Whether a third party owes not before the trial court. The point of error is over- Energo reimbursement of the taxes paid is irrelev- ruled. ant to Energo's liability under the Energo-Modern contract. We hold that the trial court properly gran- [7] Energo next contends the trial court erred in ted summary judgment to Modern. Energo's second granting Modern's motion for summary judgment point of error is overruled. because Energo presented evidence which raised a material fact issue concerning Energo's liability on The judgment of the trial court is affirmed. certain sales tax due the State of Texas. We dis- AKIN, J., files a dissenting opinion. agree. AKIN, Justice, dissenting. The record indicates that Energo agreed with I cannot agree that appellant's amended answer Modern that Energo would assume liability for pay- was not properly before the trial court where the ment of any tax due on sales of goods from Modern docket sheet contains an initialed notation by the to Energo, if such sales were not exempt from such trial judge granting an extension for the filing of taxes under Energo's exemption permit. The record amended pleadings. Neither can I agree that the re- further indicates that the Texas Comptroller of Pub- cord on review is to be construed in a light favor- lic Accounts determined that such sales between able to the trial court's judgment in a summary- Modern and Energo were not exempt, that taxes in judgment proceeding. Consequently, I would hold the amount of $12,348.50 were due, and that Mod- that the plaintiff's right to recover on its amended ern paid the taxes to the State Comptroller of Public petition was not precluded as a matter of law by Accounts. Modern's summary-judgment evidence. Accord- Energo contends that its summary-judgment ingly, I would reverse the judgment *153 and re- evidence showed that another corporation owed and mand this cause. Thus I must dissent. paid the sales tax in question. The affidavit of En- Energo International Corporation (Energo) ergo's president, attached to Energo's response to contends that the trial court erred in granting ap- Modern's summary judgment motion, states that pellee's motion for summary judgment when appel- “[s]uch sales taxes are the liability of Texas Upset- lant had on file an amended answer with supporting ting and Finishing, Inc. and Continental Bank of affidavits alleging offsets to appellee's claim, which Illinois and Ferrotherm Corp., not Energo Interoga- amended-petition allegations were not precluded as tional [sic] Corporation,” and that “[t]o the best of a matter of law by movant's summary-judgment my knowledge, Ferrotherm Corp. has paid the sales

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evidence. I agree. The docket sheet of the trial court (Tex.App.—Corpus Christi 1984, no writ); Davis v. contains the following written entry: Davis, 647 S.W.2d 781, 783 (Tex.App.—Austin 1983, no writ); City of San Antonio v. Terrill, 501 “6/17/85 Plaintiff's MSJ. Argued. Under advise- S.W.2d 394, 396 (Tex.Civ.App.—San Antonio ment to 6/30/85 for all pleadings filed to be 1973, writ ref'd n.r.e.); Hillhouse v. Allumbaugh, amended.” (Judge's initials). 258 S.W.2d 826, 828 (Tex.Civ.App.—Eastland 1953, writ ref'd n.r.e.); Perry v. Perry, 122 S.W.2d This notation establishes that the trial judge ex- 726, 728 (Tex.Civ.App.—El Paso 1938, no writ); tended the time for the filing of amended pleadings and Acosta v. Realty Trust Co., 111 S.W.2d 777, until June 30, 1985. Energo filed the amended an- 779 (Tex.Civ.App.—Austin 1937, no writ). Ac- swer on June 17, 1985, and the file mark on the cordingly, I would hold that the trial judge's docket amended answer reflects this date. The majority sheet may be considered in determining whether the disregards this evidence on the ground that “a dock- amended answer was properly before the court in a et entry forms no part of the record which may be FN2 summary-judgment proceeding. considered; it is a memorandum made for the trial court and clerk's convenience.” I disagree with this FN2. Contrary to footnote 2 to the majority statement. The cases cited by the majority as sup- opinion, my proposed holding would not porting this proposition ignore the Texas Supreme permit a docket entry to defeat a written Court's opinion in N–S–W Corporation v. Snell, 561 judgment. The majority misunderstands the S.W.2d 798 (Tex.1977), which holds that a docket holding in N–S–W Corporation v. Snell entry may be considered to supply facts in certain that a docket entry may not be used to de- situations. See also Mathews v. Looney, 132 Tex. feat a final judgment. The rule properly in- 313, 123 S.W.2d 871 (1939); Ford v. Ireland, 699 terpreted, means that a docket entry of S.W.2d 587, 588 (Tex.App.—Texarkana 1985, no what the judgment purports to be cannot writ); Whitexintl Corporation v. Justin Companies, override or cast doubt upon the written 669 S.W.2d 875, 877 (Tex.App.—Fort Worth 1984, judgment, where the two are different. writ ref'd n.r.e.); Courtlandt Corporation v. Trico That rule does not apply as here where the Service Corporation, 600 S.W.2d 883 docket sheet in no way contradicts the (Tex.Civ.App.—Houston 1980, writ ref'd n.r.e.). written judgment. If the majority's under- Furthermore, it is well settled that the docket entry standing of the rule was correct, that the is a part of the court record and need not have been “docket entry may not be used to defeat the tendered into evidence to be considered either by final summary judgment for Modern,” then the trial court or by the appellate court. Petroleum an exception to the rule could never exist Equipment Financial Corporation v. First National because in all cases the docket-sheet entry Bank of Fort Worth, 622 S.W.2d 152, 154 has been used to support a ground for re- (Tex.Civ.App.—Ft. Worth 1981, writ ref'd n.r.e.), versal of a judgment. Indeed, the majority's citing Port Huron Engine & Thrasher Co. v. Mc- statement is contrary to all cases in which Gregor, 131 S.W. 398 (Tex.1910), and Bockemehl the docket sheet entry has been used to v. Bockemehl, 604 S.W.2d 466 support judgment nunc pro tunc. E.g., City (Tex.Civ.App.—Dallas 1980, no writ). See also of San Antonio v. Terrill, 501 S.W.2d 394, Kluck v. Spitzer, 54 S.W.2d 1063, 1065 396 (Tex.Civ.App.—San Antonio 1973, (Tex.Civ.App.—Waco 1932, writ refused); Pruet v. writ ref'd n.r.e.). Coastal States Trading, Inc., 715 S.W.2d 702, 705 (Tex.App.—Houston [1st Dist.] 1986); Wood v. Neither can I countenance the majority's mis- Griffin & Brand of McAllen, 671 S.W.2d 125, 130 directed adherence to the rule of review that the re-

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cord be construed in a light favorable to supporting presumptions favorable to the judgment can be the trial court's *154 judgment. This rule does not made otherwise. Accordingly, I would reverse the apply in summary-judgment proceedings. The judgment of the trial court and remand for trial. granting of a summary judgment should be af- firmed on appeal only if the record established a Tex.App.–Dallas,1986. right to the summary judgment as a matter of law. Energo Intern. Corp. v. Modern Indus. Heating, Inc. McNaab v. Kentucky Central Life Insurance, 631 722 S.W.2d 149 S.W.2d 253 (Tex.Civ.App.—Fort Worth 1982, no END OF DOCUMENT writ). Consequently, there is a “heavy, horrendous burden placed upon the movant” for summary judg- ment. Lee v. McCormick, 647 S.W.2d 735, 737 (Tex.App.—Beaumont 1983, no writ). Because of this burden on the movant in summary-judgment cases, where all matters considered by the trial court are in the record, the appellate court will not indulge any presumptions in favor of the judgment. Kenney v. Porter, 557 S.W.2d 589, 592 (Tex.Civ.App.—Corpus Christi 1977, no writ); Hungate v. Hungate, 531 S.W.2d 650 (Tex.Civ.App.—El Paso 1975, no writ). See also Board of Adjustment v. Leon, 621 S.W.2d 431 (Tex.Civ.App.—San Antonio 1981, no writ), which held “In a summary judgment case an appellate court will not indulge presumptions in favor of the judgment.” Id. at 435. Furthermore, where there is no indication that evidence was introduced before and considered by the trial court which is not brought forward in the record, no presumptions are to be made in favor of a summary judgment. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, 319 (1961). The case the majority relies upon, Keller v. Nevel, 699 S.W.2d 211 (Tex.1985) is distinguishable in that it was not a summary-judgment proceeding, nor did it state that that rule is applicable to sum- mary-judgment proceedings. Consequently, no pre- sumptions can be made in favor of the trial court's judgment for Modern Industrial Heating, Inc.

Accordingly, I would hold that the trial court erred in granting summary judgment for Modern Industrial Heating, Inc. because Energo's amended answer with supporting affidavits raised a material fact issue with respect to Energo's claim of offset. The docket sheet reveals that the trial judge permit- ted the filing of Energo's amended answer, and no

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New Trial 275 163(1)

Supreme Court of Texas. 275 New Trial Dale A. FAULKNER, M.D., Relator, 275III Proceedings to Procure New Trial v. 275k163 Order Granting or Refusing New The Honorable Thomas R. CULVER, III, Judge, Trial Respondent. 275k163(1) k. In General. Most Cited Cases No. D–3108. Order granting new trial or modifying, correct- March 24, 1993. ing, or reforming judgment must be written and Rehearing Overruled May 19, 1993. signed. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b(c). Physician in medical malpractice suit sought writ of mandamus directing District Court, Fort [3] Judgment 228 328 Bend County, Thomas R. Culver, III, J., to vacate written order and purporting to vacate a take- 228 Judgment nothing summary judgment approximately 11 228VIII Amendment, Correction, and Review in months after judgment was entered. The Supreme Same Court Court held that trial court lost jurisdiction over case 228k328 k. Order. Most Cited Cases when judgment became final 30 days after entry. New Trial 275 163(1) Writ conditionally granted. 275 New Trial West Headnotes 275III Proceedings to Procure New Trial 275k163 Order Granting or Refusing New [1] Judgment 228 297 Trial 275k163(1) k. In General. Most Cited 228 Judgment Cases 228VIII Amendment, Correction, and Review in Trial judge's oral pronouncement granting mo- Same Court tion for new trial or motion to modify, reform, or 228k296 Authority of Court, Judge, or Judi- correct judgment and docket entry indicating that cial Officer such motion was granted cannot substitute for re- 228k297 k. In General. Most Cited Cases quired written order. Vernon's Ann.Texas Rules When party moves for new trial or to modify, Civ.Proc., Rule 329b. correct, or reform judgment, trial court has plenary power for 30 days after motion for new trial is [4] Judgment 228 186 overruled. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b. 228 Judgment 228V On Motion or Summary Proceeding [2] Judgment 228 328 228k182 Motion or Other Application 228k186 k. Hearing and Determination. 228 Judgment Most Cited Cases 228VIII Amendment, Correction, and Review in Trial court lacked jurisdiction over motion for Same Court rehearing summary judgment when court failed to 228k328 k. Order. Most Cited Cases enter written order within 30 days of granting sum-

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mary judgment, even though timely oral pro- erson's order was effective and the case would pro- nouncement and docket entry were made which ceed to trial. purported to vacate summary judgment. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b. Faulkner argues that Judge Dickerson did not have plenary power when he signed the November *188 David A. Livingston, Dion C. Raymos, Hous- 8, 1990 order vacating the summary judgment. We ton, for relator. agree.

Valorie W. Davenport, Houston, for respondent. [1][2][3] If a party moves for a new trial or to FN1 modify, correct, or reform a judgment , the trial judge has plenary power for thirty days after the PER CURIAM. motion for new trial is overruled. TEX.R.CIV.P. In this original proceeding, Relator Dale 329b. A motion for new trial or motion to modify, Faulkner, M.D. (Faulkner) seeks a writ of manda- correct, or reform the judgment is overruled by op- mus directing the trial judge to vacate an order eration of law seventy-five days after the judgment entered November 8, 1990 vacating summary judg- was signed. TEX.R.CIV.P. 329b(c). An order grant- ment for Faulkner. Pursuant to Rule 170 of the ing a new trial or modifying, correcting, or reform- Texas Rules of Appellate Procedure, a majority of ing a judgment must be written and signed. this court conditionally grants the application for TEX.R.CIV.P. 329b(c); McCormack v. Guillot, 597 writ of mandamus. S.W.2d 345, 346 (Tex.1980). A trial judge's oral In February 1988, Betty and Dan Krock pronouncement granting a motion for new trial or (Krock) sued Dale Faulkner, M.D. (Faulkner) for motion to modify, reform, or correct a judgment medical malpractice. On December 15, 1989, Judge and a docket entry indicating that such motion was Charles Dickerson granted a take-nothing summary granted cannot substitute for a written order re- judgment. On January 15, 1990, Krock filed a mo- quired by Rule 329b. Clark & Co. v. Giles, 639 tion for rehearing of the summary judgment and, in S.W.2d 449, 450 (Tex.1982). the alternative, motion for new trial. Judge Dicker- FN1. Krock's motion for rehearing of the son orally vacated the summary judgment at a hear- summary judgment was in substance a mo- ing on March 1, 1990 and made a entry on the tion to modify, correct, or reform a judg- docket sheet to this effect. While Krock's attorney ment. See TEX.R.CIV.P. 329b. apparently tried to ascertain whether Judge Dicker- son signed a written order to this effect, both a [4] Judge Dickerson's oral pronouncement and clerk in the Fort Bend County District Clerk's office docket entry vacating the summary judgment could and Judge Dickerson's secretary indicated that the not be substituted for a written order required by order vacating the summary judgment had been Rule 329b. See Clark & Co. v. Giles, 639 S.W.2d at signed but the case file was in the Judge's chambers 450. Since no written order was signed by Judge and could not be retrieved. Judge Dickerson did not Dickerson within the required time, Krock's altern- vacate the summary judgment by written order until ative motions were overruled by operation of law November 8, 1990. on February 28, 1990. The judgment became final 30 days later and the trial judge lost jurisdiction In December 1990, Judge Dickerson resigned over the case. Therefore, the order of November 8, and was replaced by Thomas Culver. Faulkner 1990, purporting to vacate the summary judgment moved to vacate Judge Dickerson's November 8, FN2 is a nullity. 1990, order vacating the summary judgment. On April 1, 1992, Judge Culver ruled that Judge Dick- FN2. However, our disposition of this

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cause does not necessarily foreclose other remedies available to the parties. See Hanks v. Rosser, 378 S.W.2d 31, 35 (Tex.1964); Rund v. Trans East, Inc., 824 S.W.2d 713, 717 (Tex.App.—Houston [1st Dist.] 1992, writ denied).

*189 Pursuant to Rule 170 of the Texas Rules of Appellate Procedure, a majority of this court, without hearing oral argument, conditionally grants Faulkner's petition for writ of mandamus. The man- damus will only issue if the trial judge refuses to act in accordance with this opinion.

Tex.,1993. Faulkner v. Culver 851 S.W.2d 187

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106 Courts 106IV Courts of Limited or Inferior Jurisdiction Supreme Court of Texas. 106k167 Limitations as to Amount or Value Sue Ann FLYNT in Controversy v. 106k170 k. Allegations and prayers in Julian GARCIA. pleadings. Most Cited Cases Where original suit was within jurisdictional No. B-8131. limits of court and subsequent amendment sought June 6, 1979. only additional damages that were accruing because Appeal was taken from a judgment of the of passage of time, and where there was no allega- County Civil Court at Law No. 1, Harris County, tion of bad faith or fraud in invoking jurisdiction of Charles G. Castles, J., awarding delinquent pay- court, jurisdiction of county court at law to enter- ments due under property settlement agreement. tain suit for delinquent payments due under prop- The Court of Civil Appeals, Cire, J., held, 574 erty settlement agreement was not defeated by trial S.W.2d 587, that trial court was without jurisdiction amendment which raised amount in controversy and reversed and remanded, and plaintiff appealed. over maximum jurisdictional limit of $5,000. The Supreme Court held that where original suit *109 Fred Riepen, Houston, for petitioner. was within jurisdictional limits of court and sub- sequent amendment sought only additional damages Milton Schwartz, Houston, for respondent. that were accruing because of passage of time, county court had power to entertain suit for delin- quent payments due under property settlement PER CURIAM. agreement even after trial amendment which raised This case involves the jurisdiction of a county amount in controversy over maximum jurisdictional court at law to entertain suit and render judgment limit. after a trial amendment raised the amount in contro- versy over the maximum jurisdictional limit of Court of Civil Appeals reversed. $5,000.

West Headnotes We will recite only those facts necessary for our disposition of the case and will not repeat the [1] Courts 106 30 full statement made by the court of civil appeals at 574 S.W.2d 587. 106 Courts 106I Nature, Extent, and Exercise of Jurisdiction The record before us does not contain plead- in General ings prior to the fourth amended original petition 106I(A) In General filed April 18, 1977. By that pleading, Sue Ann 106k30 k. Loss or divestiture of jurisdic- Flynt sought to recover $1,778.40 plus interest un- tion. Most Cited Cases der a fully matured obligation, and $3,100 plus in- Where jurisdiction is once lawfully and prop- terest in monthly payments accrued through Au- erly acquired, no subsequent fact or event in partic- gust, 1976, under another obligation not yet fully ular case serves to defeat that jurisdiction. matured. The total sought at that time was $4,778.40 plus interest. By trial amendment, she in- [2] Courts 106 170 creased her demand to $6,242.40 by including ac- crued payments on the second obligation through

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the end of trial. Tex., 1979. Flynt v. Garcia The court of civil appeals has held that the 587 S.W.2d 109 county court at law retained jurisdiction to “entertain the suit”, citing this Court's opinions in END OF DOCUMENT Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (1924); and Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962). However, the court further held that the trial court had no “jurisdiction to enter a judgment in excess of the jurisdictional amount.”

We think the opinion of the court of civil ap- peals is in conflict with the general rule announced in Isbell, supra and Haginas, supra ; and, therefore pursuant to Tex.R.Civ. P. 483, we grant the applica- tion of Sue Ann Flynt, and without hearing oral ar- gument, reverse the judgment of the court of civil appeals.

[1][2] The general rule stated in the two prior opinions is that “where jurisdiction is *110 once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jurisdiction.” We see no reason why that general rule should not apply to a case where the original suit is within the jurisdictional limits of the court and subsequent amendments seek only additional damages that are accruing because of the passage of time. This is especially so where there is no allega- tion of bad faith or fraud in invoking the jurisdic- tion of the court.

The rule applied here will serve the purposes of judicial economy. The opinion of the court of civil appeals would reverse the judgment and remand the cause for another trial in the county court at law while allowing only a partial recovery of the amount due. If another suit is required to recover the balance, three lawsuits will result from this single claim.

The judgment of the court of civil appeals is re- versed and the judgment of the trial court is af- firmed.

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30k498 Presentation and Reservation of Grounds of Review Court of Appeals of Texas, 30k500 Rulings by Lower Court Fort Worth. 30k500(1) k. In General. Most Alvin Chester GUYOT, Jr. Appellant, Cited Cases v. A point on appeal based on a trial court's ruling Martha Marie GUYOT, Appellee. on a motion, request, or objection must be suppor- ted by a showing in the record that the motion, re- No. 2–98–354–CV. quest, or objection was presented to and acted upon Oct. 7, 1999. by the trial court. Rules App.Proc., Rule 33.1(a) The 324th District Court, Tarrant County, Bri- [2] Appeal and Error 30 516 an A. Carper, J., entered divorce decree, even though docket sheet notation indicated that husband 30 Appeal and Error wished to withdraw his consent to divorce agree- 30X Record ment. Husband appealed. The Court of Appeals, 30X(B) Scope and Contents Holman, J., held that: (1) trial court's docket sheet 30k516 k. Proceedings Included in Gener- notation did not preserve error on appeal; (2) hus- al. Most Cited Cases band did not preserve error for appeal on his objec- In general, a docket entry forms no part of the tion to wife's motion to sign final divorce decree record which may be considered; it is a memor- and proposed judgment; and (3) argument that trial andum made for the clerk's and trial court's con- court erred in denying husband's motion for a new venience. trial would not be considered. [3] Appeal and Error 30 837(1) Affirmed. 30 Appeal and Error West Headnotes 30XVI Review 30XVI(A) Scope, Standards, and Extent, in [1] Appeal and Error 30 499(1) General 30 Appeal and Error 30k837 Matters or Evidence Considered 30X Record in Determining Question 30X(A) Matters to Be Shown 30k837(1) k. In General. Most Cited 30k498 Presentation and Reservation of Cases Grounds of Review Docket entries on appeal are inherently unreli- 30k499 Questions and Objections in able. General [4] Appeal and Error 30 837(1) 30k499(1) k. In General. Most Cited Cases 30 Appeal and Error 30XVI Review Appeal and Error 30 500(1) 30XVI(A) Scope, Standards, and Extent, in 30 Appeal and Error General 30X Record 30k837 Matters or Evidence Considered 30X(A) Matters to Be Shown in Determining Question 30k837(1) k. In General. Most Cited

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Cases 30k497(1) k. In General. Most Cited Docket entries on appeal may be examined to Cases correct clerical errors in judgments or orders or to It is the appellant's responsibility to preserve determine the meaning of words used in a judgment error for appeal by taking affirmative steps to en- or order. sure that all matters he may wish to appeal are timely and properly entered into the court record. [5] Appeal and Error 30 837(1) [8] Divorce 134 179 30 Appeal and Error 30XVI Review 134 Divorce 30XVI(A) Scope, Standards, and Extent, in 134IV Proceedings General 134IV(O) Appeal 30k837 Matters or Evidence Considered 134k179 k. Presentation and Reservation in Determining Question in Lower Court of Grounds of Review. Most Cited 30k837(1) k. In General. Most Cited Cases Cases Husband did not preserve error for appeal on Where the only evidence of a trial court's order his objection to wife's motion to sign final divorce or judgment is found in the docket sheet or where decree and proposed judgment, where there was no the movant seeks to use the docket sheet to impeach evidence anywhere in the record that husband or his an order or judgment, the docket sheet cannot be attorney made such an objection. Rules App.Proc., used to show the existence of an order or judgment Rule 33.1(a). or to impeach an order or judgment. [9] Divorce 134 179 [6] Divorce 134 179 134 Divorce 134 Divorce 134IV Proceedings 134IV Proceedings 134IV(O) Appeal 134IV(O) Appeal 134k179 k. Presentation and Reservation 134k179 k. Presentation and Reservation in Lower Court of Grounds of Review. Most Cited in Lower Court of Grounds of Review. Most Cited Cases Cases Argument that trial court in dissolution pro- Argument that trial court erred in entering di- ceedings erred in denying husband's motion for a vorce decree since docket sheet notation indicated new trial would not be considered, where husband's that husband's attorney withdrew consent to divorce motion was so vague that trial court could not make agreement before decree was signed would not be a determination as to the grounds for the request for considered, where notation was merely a memor- new trial andum made for the convenience of the trial court and court clerk, and was not reliable for the purpose *244 Jeffery D. Gooch, Fort Worth, for Appellant. of preserving error on appeal. Panel F: CAYCE, C.J.; HOLMAN and DAY, JJ. [7] Appeal and Error 30 497(1)

30 Appeal and Error OPINION 30X Record DIXON W. HOLMAN, Justice. 30X(A) Matters to Be Shown This appeal presents the issue of whether a 30k497 Grounds of Review party to a Rule 11 agreement, which was entered on

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the court reporter's record and agreed to by both terms of the Agreement as dictated into the court parties under oath, can withdraw his consent to that record. agreement before the trial court renders a final writ- ten decree of divorce pursuant to the terms of the On August 19, 1998, Appellant filed a motion agreement. Appellant Alvin Chester Guyot, Jr. re- for new trial on the following grounds: lies on a trial court docket entry notation as evid- 1. On July 16, 1998, the court granted a divorce ence that he timely and properly informed the trial in the above cause. court of his desire to withdraw his consent to the di- vorce agreement. The trial court noted on the dock- 2. A judgment has not yet been signed by this et sheet that Appellant's attorney informed the trial Court in the above cause. court at a hearing on Appellee's Motion to Sign Fi- nal Decree of Divorce that Appellant wished to 3. The trial court erred in granting the divorce withdraw his consent to the divorce agreement. without hearing any testimony from the parties. There is no other evidence in the record that Appel- lant made a complaint by a timely objection, re- 4. Movant has a meritorious defense to the cause quest, or motion putting the court on notice of Ap- of action alleged in this cause. pellant's desire to withdraw from the agreement. 5. The granting of a new trial would not do injury Because we hold that a trial court docket sheet to MARTHA MARIE GUYOT. notation cannot be relied on to preserve error on ap- peal, we do not reach the issue presented by Appel- 6. Justice will not be properly served unless a lant and affirm the trial court's judgment. new trial is granted. I. FACTUAL AND PROCEDURAL BACK- On August 25, 1998, Appellee filed a response GROUND to Appellant's motion for new trial. The record does On July 11, 1996, Appellant filed his petition not reflect that a hearing was held on Appellant's for divorce and application for temporary restrain- motion. On August 25, 1998, Appellee filed a Mo- ing order in which Appellant sought a divorce from tion to Sign Final Decree of Divorce. At the his wife, Appellee Martha Marie Guyot, custody of September 4, 1998 hearing on Appellee's motion, their minor child, a temporary restraining order, Appellee presented the trial court with a proposed and property division. On October 21, 1996, Ap- Final Decree of Divorce that encompassed the pellee filed her answer and counter-petition seeking terms of the Agreement. The trial court signed the divorce from Appellant, custody of their minor proposed Final Decree of Divorce on September 4, child, a temporary restraining order, and property 1998. division. On July 16, 1998, Appellant and Appellee appeared before the trial court with their attorneys Appellant claims that at the hearing on Septem- of record and announced in open court that they had ber 4, 1998, his attorney informed the trial court reached stipulations and agreements regarding the that Appellant was withdrawing his consent to the divorce and division of personal and real property Agreement. Appellant also states that his attorney (hereinafter the “Agreement”). Appellee's attorney objected to Appellee's Motion to Sign Final Decree recited the terms of the Agreement. Both Appellant of Divorce and the proposed judgment. Appellant *245 and Appellee testified under oath that they was not present at the hearing, and no court report- agreed and consented to the terms and conditions of er's record was made of this hearing. The only evid- the Agreement and requested that the trial court ap- ence in the appellate record that Appellant's attor- prove the Agreement. Neither Appellant nor Ap- ney actually informed the trial court that Appellant pellee stated that they had any objections to the wished to withdraw his consent to the Agreement is

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found in the trial court's docket sheet. On the dock- desire to withdraw his consent to the Agreement is et sheet, the presiding judge made a hand-written the judge's handwritten notation on the trial court's FN1 notation: docket sheet. While the docket entry notation might show that the trial court was on notice of Ap- 9/4/98 Hearing on M/Final Decree. Attys present pellant's desire to withdraw his consent to the + atty for Pet. Alvin Guyot, Jr. w/o client says Agreement, there is no evidence in the record client w/drawing Ruling 11 agreement client not showing that Appellant preserved error on the issue present. W/drawal of Rule 11 agreement not ac- of whether the trial court erred in entering the di- cepted since client not present. No other w/ vorce decree because Appellant withdrew his con- drawal appears on record. W/drawal not allowed sent to the Agreement before the decree was signed. + judgment entered. BB Thornton. The trial court docket entry cannot be relied on to preserve error. Further, there is no evidence in the record that Appellant or his attorney ever objected to Ap- FN1. Appellant also claims that the record pellee's Motion to Sign Final Decree of Divorce or shows that he withdrew his consent to the to the proposed judgment. Agreement based on the fact that the signa- ture of his attorney is not on the Final De- Appellant claims that the trial court's judgment cree of Divorce signed by the trial court. should be reversed because the trial court was We cannot assume, however, that Appel- aware that Appellant withdrew his consent to the lant withdrew his consent to the Agree- terms of the Agreement before the trial court ment simply because his attorney's signa- entered a final written judgment. Appellant claims ture is not on it, especially in light of the that the notation on the docket sheet and the lack of fact that Appellee's attorney did not sign his attorney's signature on the divorce decree show the decree either. that there is evidence in the record that the trial court had timely and proper notice of his intent to [1] Under Texas Rule of Appellate Procedure withdraw consent to the Agreement. 33.1(a), before a party can present a complaint for appellate review, the record must show that: II. PRESERVATION OF ERROR Before this court can make a determination as (1) the complaint was made to the trial court by a to whether Appellant timely and properly withdrew timely request, objection, or motion that: his consent to the Agreement, we must determine whether Appellant properly preserved error in the (A) stated that grounds for the ruling that the trial court. complaining party sought from the trial court with sufficient specificity to make the trial A. The Docket Sheet court aware of the complaint, unless the specif- Appellant states in his brief that there is evid- ic grounds were apparent from the context; and ence in the record of his desire to withdraw consent to the Agreement and his objection to Appellee's (B) complied with the requirements of the Motion to Sign *246 Final Decree of Divorce and Texas Rules of Civil or Criminal Evidence or the proposed judgment. Our review of the record, the Texas Rules of Civil or Appellate Proced- however, indicates that there is no evidence any- ure; and where in the record that Appellant or his attorney objected to Appellee's motion or the proposed judg- (2) the trial court: ment, and the only evidence that Appellant refers us (A) ruled on the request, objection, or motion, to or that can be found in the record evidencing his either expressly or implicitly; or

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(B) refused to rule on the request, objection, or [5] Typically, the cases that have discussed the motion, and the complaining party objected to use of a docket sheet on appeal involve situations the refusal. where the only evidence of a trial court's order or judgment is found in the docket sheet or where the TEX.R.APP. P. 33.1(a). In other words, a point movant seeks to use the docket sheet to impeach an on appeal based on a trial court's ruling on a mo- order or judgment. Under these circumstances, the tion, request, or objection must be supported by a docket sheet cannot be used to show the existence showing in the record that the motion, request, or of an order or judgment or to impeach an order or objection was presented to and acted upon by the judgment. See, e.g., Frazier, 987 S.W.2d at 608 & trial court. See, e.g., Ballard v. King, 652 S.W.2d 611 (holding that docket sheet, which stated that 767, 769 (Tex.1983); Temple EasTex, Inc. v. Old plaintiff did not submit any evidence to contest ele- Orchard Creek Partners, Ltd., 848 S.W.2d 724, ments of defendant's motion for summary judg- 736 (Tex.App.—Dallas 1992, writ denied) ment, when, in fact, plaintiff had timely filed two (interpreting TEX.R.APP. P. 52(a) (Vernon affidavits to contest motion, could not be used to Pamph.1997, revised 1997)); Anderson v. Higdon, impeach judgment entered by trial court that stated 695 S.W.2d 320, 326 (Tex.App.—Waco 1985, writ that court had reviewed “competent summary judg- ref'd n.r.e.). ment evidence on file”); Pickell v. Guaranty Nat'l Life Ins. Co., 917 S.W.2d 439, 441 [2][3][4] In general, a docket entry forms no (Tex.App.—Houston [14 th Dist.] 1996, no writ) part of the record which may be considered; it is a (holding that appellant failed to preserve error for memorandum made for the clerk's and trial court's appeal where only indication that trial court ruled convenience. See Jauregui Partners, Ltd. v. Grubb on a motion to transfer venue was a docket sheet & Ellis Commercial Real Estate Servs., 960 S.W.2d notation); First Nat'l Bank of Giddings, Tex., 826 334, 336 (Tex.App.—Corpus Christi 1997, pet. S.W.2d at 190 (holding that court lacked jurisdic- denied); In re Fuentes, 960 S.W.2d 261, 264 tion for appeal where only evidence of application (Tex.App.—Corpus Christi 1997, orig. proceeding); for turnover relief was in the trial court's docket First Nat'l Bank of Giddings, Tex. v. Birnbaum, 826 sheet). S.W.2d 189, 190–91 (Tex.App.—Austin 1992, no writ) (op. on reh'g); Energo Int'l Corp. v. Modern Some courts, however, have also denied review Indus. Heating, Inc., 722 S.W.2d 149, 151 when the docket sheet was relied on by the movant (Tex.App.—Dallas 1986, no writ). One reason for for other purposes. See Frommer v. Frommer, 981 not considering docket entries on appeal is that they S.W.2d 811, 813 n. 3 (Tex.App.—Houston [1 st are inherently unreliable. See, e.g., Energo, 722 Dist.] 1998, no pet.) (refusing to examine a docket S.W.2d at 151 n. 2. An exception to this rule is that entry to support the movant's point of error where docket entries may be examined to correct clerical movant failed to request findings of fact and con- errors in judgments or orders or to determine the clusions of law); Roever v. Roever, 824 S.W.2d meaning of words used in a judgment or order. See 674, 676 (Tex.App.—Dallas 1992, no writ) N–S–W Corp. v. Snell, 561 S.W.2d 798, 799 (refusing to examine docket entry when movant (Tex.1977) (stating that “[a] docket entry may sup- claimed that docket entry supported his claim that ply facts in certain situations”); Energo, 722 community property estate was of no or nominal S.W.2d at 151 n. 2 *247 (interpreting the “certain value because neither party alleged clerical error); situations” referred to in Snell to be limited to cler- Energo, 722 S.W.2d at 151 (holding that docket ical errors in judgments or orders); see also Frazier entry could not be used to show that appellant's un- v. Yu, 987 S.W.2d 607, 611 (Tex.App.—Fort Worth timely amended answer was filed with permission 1999, pet. denied) (discussing Snell and Energo ). of the trial court in order to defeat summary judg-

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ment). Finally, in Elite Towing, Inc. v. LSI Fin. authenticated docket sheets served with af- Group, the court held that the appellant did not pre- fidavits were proper summary judgment serve error for appeal on a motion to transfer venue proof where affidavits relied in part on the even though the trial court had noted in its docket docket sheets to show that no extraordinary sheet that the motion had been filed and ruled on. writs or other process had been issued. The 985 S.W.2d 635, 645 (Tex.App.—Austin 1999, no Ross court also noted, however, that the af- pet.). The Elite court stated: fidavits by themselves could have probably established the same facts without refer- The record before us does not contain either a ence to the docket sheets. See id. (stating motion to transfer venue or the district court's that while the affidavits do refer to the ruling on same. The docket sheet included in the docket sheets and rely on them in part, the court's record reflects such a motion was filed affidavits also contain statements that and denied. However, we find no request by Elite based on the affiants' personal knowledge to include either the motion or order in the court's no extraordinary writ or process was is- record brought forward to this Court. Therefore, sued; these statements were independent any objection to venue has been waived. and did not rely on the docket sheets). FN2 Id.(Emphasis added). [6][7] The docket notation in this case was merely a memorandum made for the *248 conveni- FN2. We recognize that there are courts ence of the trial court and court clerk, and it is not that have examined docket sheets to de- reliable for the purpose of preserving error on ap- termine the absence or presence of a mo- peal. See, e.g., First Nat'l Bank of Giddings, Tex., tion or discovery on the trial court's docket 826 S.W.2d at 191 (stating that docket entries are without addressing whether it is proper to inherently unreliable because they lack the formal- do so. See Tubb v. Vinson Exploration, ity of orders and judgments); Energo, 722 S.W.2d Inc., 892 S.W.2d 183, 185 (Tex.App.—El at 151 n. 2 (“docket entries are inherently unreli- Paso 1994, writ denied) (examining record able”). Moreover, it is the Appellant's responsibility to determine whether appellee preserved to preserve error for appeal by taking affirmative error in the judgment and noting that “the steps to ensure that all matters he may wish to ap- computerized docket sheet of the trial peal are timely and properly entered into the court court reflects no such motion [for judg- record. See, e.g, Temple EasTex, Inc., 848 S.W.2d ment on the verdict]”); Prowse v. Schell- at 736 (stating that in order to preserve error for ap- hase, 838 S.W.2d 787, 790 peal, the movant must present to the trial court a (Tex.App.—Corpus Christi 1992, no writ) timely request stating the specific grounds for the (stating that docket sheet does not reflect ruling desired, if the grounds are not obvious from whether discovery evidence was filed with the context, and the movant must obtain a ruling on the trial court before hearings on motions the requested relief); Anderson, 695 S.W.2d at 326 for summary judgment). Due to the inher- (stating that record must show that Appellant re- ent unreliability of docket sheets, we be- quested relief in the trial court). To permit Appel- lieve that the better approach is not to ex- lant to rely on a court's docket entry for preserving amine docket sheets on appeal other than error would relieve him of his responsibility to en- to clarify clerical errors. See Energo, 722 sure that error is preserved and would encourage S.W.2d at 151. We also note that the court others in the future to trust in the trial judge's abil- in Ross v. Arkwright Mut. Ins. Co., 892 ity to take diligent notes. We hold the trial judge's S.W.2d 119, 129 (Tex.App.—Houston [14 notation on the docket sheet that Appellant's attor- th Dist.] 1994, no writ), held that properly

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ney notified the court of Appellant's desire to with- draw his consent to the Agreement did not preserve error for appeal on the issue of whether the trial court erred in entering the divorce decree.

[8] Further, we hold Appellant did not preserve error for appeal on his objection to Appellee's Mo- tion to Sign Final Decree of Divorce and the pro- posed judgment. There is no evidence anywhere in the record that Appellant or his attorney made such an objection. See TEX.R.APP. P. 33.1(a).

B. The Motion for New Trial [9] Appellant also complains that the trial court erred in denying his motion for new trial. Appellant failed, however, to state the grounds “for the ruling [he] sought from the trial court with sufficient spe- cificity to make the trial court aware of the com- plaint.” Id. Appellant's motion for new trial was so vague that the trial court could not make a determ- ination as to the grounds for the request for the new trial. First, contrary to Appellant's claim, the court did hear testimony of the parties before entering the divorce decree. At the hearing on July 16, 1998, both Appellant and Appellee testified that they con- sented to the terms of the Agreement. Second, Ap- pellant's mere recitation that he has a meritorious defense to the cause of action alleged and that the trial court erred in granting the divorce does not sufficiently specify the grounds for Appellant's complaint under rule 33.1(a). See id. Finally, the grounds for Appellant's motion cannot also be said to be apparent from the context. Thus, Appellant failed to preserve error for appeal in his motion for new trial.

Appellant's sole point on appeal is overruled, and the trial court's judgment is affirmed.

Tex.App.–Fort Worth,1999. Guyot v. Guyot 3 S.W.3d 243

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easements for gas pipelines. In three of the actions, landowners filed counterclaims. In first four actions, the Supreme Court of Texas. County Court at Law, Fort Bend County, Walter S. Thelma Blahuta HUBENAK, Petitioner, McMeans, J., granted easements and awarded compens- v. ation to landowners, and the Houston Court of Appeals, SAN JACINTO GAS TRANSMISSION COMPANY, First District, 65 S.W.3d 791,Terry Jennings, J., af- Respondent. firmed. In fifth action, the 25th District Court, Gonzales Thelma Blahuta Hubenak and Emil Blahuta, Petitioners, County, Gus J. Strauss, Jr., J., granted summary judg- v. ment for utility, and the Corpus Christi Court of Ap- San Jacinto Gas Transmission Company, Respondent. peals, 71 S.W.3d 395,Dorsey, J., affirmed. The sixth ac- Rosie Wenzel, Wilma McAndrew, Betty McCleney, and tion was dismissed by the 25th District Court, Colorado Tilford Sulak, Petitioners, County, Gus J. Strauss, Jr., J., dismissed, and the Tex- v. arkana Court of Appeals, 71 S.W.3d 852, Grant, J., af- San Jacinto Gas Transmission Company, Respondent. firmed. Seventh action was dismissed by the 25th Dis- Kutach Family Trust, Darryl Wayne Kutach, Trustee, trict Court, Colorado County and the Texarkana Court Petitioner, of Appeals, 141 S.W.3d 208, 2002 WL 264833,Ross, J., v. affirmed. In eighth action the Court of Appeals, 141 San Jacinto Gas Transmission Company, Respondent. S.W.3d 211, 2002 WL 32626070, Grant, J., affirmed Cusack Ranch Corporation, Petitioner, dismissal of the action. Ninth action was dismissed by v. the 25th District Court, Gonzales County, and the Cor- MidTexas Pipeline Company, Respondent. pus Christi Court of Appeals, 141 S.W.3d 215, 2002 MidTexas Pipeline Company, Petitioner, WL 368639,Yanez, J., reversed. v. Wilbert O. Dernehl, Jr. and The First National Bank of Holdings: On consolidated appeals, the Supreme Court, Bellville, Respondents. Owen, J., held that MidTexas Pipeline Company, Petitioner, (1) any failure to satisfy requirement that utilities plead v. that the parties were unable to agree on damages did not Walter Roy Wright, Jr. and Robbie V. Wright, Re- deprive courts of jurisdiction, and spondents. (2) utilities satisfied requirement that the parties were MidTexas Pipeline Company, Petitioner, unable to agree on damages. v. Walter Roy Wright, III, Respondent. Judgments of Courts of Appeals affirmed in part, Michael F. Cusack, Trustee of the Michael F. Cusack affirmed and remanded in part, and reversed and re- Special Trust No. One, Petitioner, manded in part. v. MidTexas Pipeline Company, Respondent. Jefferson, J., filed concurring opinion. Nos. 02–0213 to 02–0217, 02–0320, 02–0321, 02–0326, West Headnotes 02–0359. Argued Feb. 19, 2003. [1] Eminent Domain 148 191(5) Decided July 2, 2004. 148 Eminent Domain Background: In nine separate actions, utilities brought 148III Proceedings to Take Property and Assess condemnation actions against landowners to acquire Compensation

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148k189 Pleading landowners, satisfied statutory requirement that the 148k191 Petition or Complaint parties were unable to agree on the damages. V.T.C.A., 148k191(5) k. Showing inability to agree Property Code § 21.012. with owner. Most Cited Cases Statutory provision requiring that condemnor, in a [5] Eminent Domain 148 170 condemnation proceeding, plead that the parties were 148 Eminent Domain unable to agree on the damages, was mandatory, but 148III Proceedings to Take Property and Assess failure to satisfy it did not deprive courts of subject mat- Compensation ter jurisdiction. V.T.C.A., Property Code § 21.012. 148k170 k. Negotiations, offer to purchase, and [2] Courts 106 37(1) inability to agree with owner. Most Cited Cases Gas pipeline utilities' offers to landowners in con- 106 Courts demnation proceedings, which were refused, satisfied 106I Nature, Extent, and Exercise of Jurisdiction in requirement that utilities and landowners were unable to General agree, despite fact that offers included the right to trans- 106I(A) In General port oil and other products, the right to assign the ease- 106k37 Waiver of Objections ments, and a warranty of title to the easement, which 106k37(1) k. In general. Most Cited Cases were not explicitly included in the condemnation peti- Subject matter jurisdiction cannot be waived. tions; those rights were not at issue during pre- condemnation negotiations, were not material to the ne- [3] Eminent Domain 148 178.5 gotiations, and did not play any part in the parties' inab- ility to agree. V.T.C.A., Property Code § 21.012. 148 Eminent Domain 148III Proceedings to Take Property and Assess [6] Eminent Domain 148 170 Compensation 148k178.5 k. Abatement and revival of proceed- 148 Eminent Domain ings. Most Cited Cases 148III Proceedings to Take Property and Assess Abatement for a reasonable period of time, in order Compensation to allow condemnor to satisfy the “unable to agree” re- 148k170 k. Negotiations, offer to purchase, and quirement, is proper remedy, in a condemnation pro- inability to agree with owner. Most Cited Cases ceeding in which landowner objects that there has been Generally, in determination, in a condemnation pro- no offer and trial court finds that statutory requirement, ceeding, of whether the parties were unable to agree, it that the parties be unable to agree on the damages, has is sufficient that the parties negotiated for the same not been met. V.T.C.A., Property Code § 21.012. physical property and same general use that became the subject of the later eminent domain proceeding, even if [4] Eminent Domain 148 170 more intangible rights were sought in the purchase ne- gotiations which did not exactly mirror those sought or 148 Eminent Domain obtainable by condemnation. V.T.C.A., Property Code § 148III Proceedings to Take Property and Assess 21.012. Compensation 148k170 k. Negotiations, offer to purchase, and *174 Stephen I. Adler, Austin, for Amicus Curiae Olin inability to agree with owner. Most Cited Cases Corporation. Condemnors who established that they made offers to landowners before filing condemnation proceedings Richard L. McElya, Angleton, William D. Noel, for seeking easements for gas pipeline construction, and Thelma Blahuta Hubenak, Cusack Ranch Corporation, that those offers were rejected or ignored by the Walter Roy Wright, III.

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Thomas E. Sheffield, Houston, for San Jacinto Gas firm the court of appeals' judgment in MidTexas FN7 Transmission Company. Pipeline Co. v. Cusack and remand that case to the trial court for further proceedings consistent with this Richard L. McElya, Angleton, for Emil Blahuta, Wilma opinion; and (3) reverse the court of appeals' judgments McAndrew, Betty McCleney, Tilford Sulak, Darryl FN8 in MidTexas Pipeline Co. v. Dernehl, MidTexas Wayne Kutach, Trustee, The First National Bank of FN9 Pipeline Co. v. Wright (Wright 1 ), and MidTexas Bellville, Robbie V. Wright, Michael Cusack Special FN10 Pipeline Co. v. Wright (Wright 2 ) and remand Trust No. One. those cases to their respective trial courts for further proceedings consistent with this opinion. William D. Noel, for Rosie Wenzel, Kutach Family Trust, Wilbert O. Dernehl, Jr., Walter Roy Wright, Jr., FN1. TEX. PROP.CODE § 21.012(a), (b). Michael F. Cusack, Trustee. FN2. 65 S.W.3d 791 (Cause No. 02–0213 in Kenneth C. Raney Jr., Dallas, Thomas E. Sheffield, this Court). Houston, for MidTexas Pipeline Company. FN3. Id. (Cause No. 02–0214 in this Court). Stephen K. Carroll, Houston, for Amicus Curiae BP Pipelines Inc. FN4. Id. (Cause No. 02–0215 in this Court).

FN5. Id. (Cause No. 02–0216 in this Court). Justice OWEN delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice FN6. 71 S.W.3d 395 (Cause No. 02–0217 in SMITH, Justice WAINWRIGHT and Justice BRISTER this Court). joined, and in which Justice JEFFERSON joined as to Parts I, II and III. FN7. 141 S.W.3d 215, 2002 WL 368639 In these nine consolidated condemnation cases, we (Cause No. 02–0359 in this Court). must determine whether (1) provisions in Texas Prop- FN8. 71 S.W.3d 852 (Cause No. 02–0320 in erty Code section 21.012 permitting a condemning au- this Court). thority to begin condemnation proceedings if it is “unable to agree with the owner of the property on the FN9. 141 S.W.3d 208, 2002 WL 264833 amount of damages” and requiring a condemnation peti- (Cause No. 02–0321 in this Court). tion to contain a statement that it has been unable to FN1 agree are jurisdictional; and (2) the condemning FN10. 141 S.W.3d 211, 2002 WL 32626070 entities in these cases satisfied *175 section 21.012's re- (Cause No. 02–0326 in this Court). quirements. We hold that the “unable to agree” require- ment is not jurisdictional and that the condemning entit- I ies have satisfied their burden to show that they and the San Jacinto Gas Transmission Co. and MidTexas landowners were unable to agree on the damages for the Pipeline Co. are unrelated gas utility companies pos- FN11 properties described in the underlying condemnation pe- sessing eminent domain power. Their respective titions. Accordingly, we (1) affirm the courts of appeals' boards of directors authorized them to construct natural judgments in Hubenak v. San Jacinto Gas Transmission gas pipelines. Some of the landowners across whose FN2 FN12 Co. (Hubenak 1 ), Hubenak v. San Jacinto Gas property a pipeline was to be built challenged the FN3 validity of the condemnation proceedings. The affected Transmission Co. (Hubenak 2 ), Wenzel v. San FN4 properties are located in several Texas counties, includ- Jacinto Gas Transmission Co., Kutach Family FN5 ing Fort Bend, Colorado, and Gonzales counties. Be- Trust v. San Jacinto Gas Transmission Co., and Cu- FN6 cause the issues in each of the cases are the same, we sack Ranch Corp. v. MidTexas Pipeline Co.; (2) af- will refer to the landowners collectively and to the gas

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utility companies as the “condemnors.” Section 21.012 of the Texas Property Code provides: FN11. TEX. UTIL.CODE §§ 181.004, .008. (a) If the United States, this state, a political subdivi- FN12. Thelma Blahuta Hubenak, Darryl sion of this state, a corporation with eminent domain Wayne Kutach, Emil Blahuta, Rosie Wenzel, authority, or an irrigation, water improvement, or wa- Wilma McAndrew, Betty McCleney, Tilford ter power control district created by law wants to ac- Sulak, the Kutach Family Trust, Michael F. quire real property for public use but is unable to Cusack, Cusack Ranch Corp., Walter Roy agree with the owner of the property on the amount of Wright, Jr., Robbie V. Wright, Walter Roy damages, the condemning entity may begin a con- Wright, III, and Wilbert O. Dernehl, Jr. demnation proceeding by filing a petition in the prop- er court. Before instituting condemnation proceedings, the condemnors hired certified real estate appraisers to ap- (b) The petition must: praise the proposed easements across the landowners' properties. In each case, the condemnors made at least (1) describe the property to be condemned; two offers to the landowners to purchase their property. Each offer exceeded the appraised value of the ease- (2) state the purpose for which the entity intends to ments, including a final offer that contained the follow- use the property; ing statement: “If you elect to reject this offer, [the con- (3) state the name of the owner of the property if demnor] may institute a condemnation suit in [a desig- the owner is known; and nated court], to acquire the rights described in the Right of Way Agreement.” The right-of-way agreements at- (4) state that the entity and the property owner are tached to all of the final offers included the following FN13 unable to agree on the damages. terms:

(1) the condemnor would receive the right to trans- FN13. TEX. PROP.CODE § 21.012. port “gas, oil, petroleum *176 products, or any other liquids, gases or substances which can be transported The condemnation petitions filed in the trial courts through a pipeline”; contained all the foregoing statutory allegations, includ- ing a statement that the condemnors and the landowners (2) the condemnor would receive the right to assign were unable to agree on the damages for the properties the easement to any person or entity; and to be condemned. The petitions, however, did not ex- pressly seek to condemn or otherwise address the three (3) the landowners would be obligated to warrant matters contained in the right-of-way agreements re- and defend title to the easement. garding the transportation of oil and other substances, the right to assign the easement, and the landowners' The landowners repeatedly informed the condem- obligations to warrant title. nors during negotiations that they simply did not want a pipeline located on their properties, and in many cases, In each case, the trial court appointed special com- the landowners stated they would agree to sell the ease- missioners to assess damages, and the special commis- ments only at prices far above the appraised values, if at sioners awarded the landowners less than the condem- all. Ultimately, the landowners in each case either rejec- nors had offered for the easements, with the exception ted or ignored the condemnors' final offers. The con- FN14 of the awards in Cusack and Cusack Ranch. The demnors then sought condemnation in the appropriate landowners timely filed their objections to the commis- trial courts. sioners' awards, and in Dernehl, Wright 1, and Wright 2,

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the landowners also filed counterclaims for possession fers made to the landowners, and the parties' failure to of their land and damages for wrongful taking. In all of agree. In most of the cases, Dunwoody's affidavit also the cases, the condemnors responded by filing *177 mo- authenticates correspondence that passed between the tions for partial summary judgment, asserting that they condemnors and the landowners, including the condem- had satisfied all prerequisites to bringing the condemna- nors' final offers, and the right-of-way agents' notes tion actions and that the amount of damages was the about landowner contacts. only issue pending before the court. In support of their motions, the condemnors attached affidavits from David FN14. The condemnors highest offers and M. Dunwoody on the issue of inability to agree. Dun- commissioners awards were: woody oversaw the negotiations between the condem- nors and landowners in each of the nine cases. His affi- davits recount obtaining independent appraisals, the of-

Hubenak 1 (02-0213): offer-$ 6,089.80 award-$ 2,918.00 Hubenak 2 (02-0214): offer-$24,602.65 award-$ 8,843.00 Wenzel (02-0215): offer-$14,620.38 award-$ 4,606.00 Kutach (02-0216): offer-$ 6,360.00 award-$ 2,670.00 Cusack Ranch (02-0217): offer-$25,000.00 award-$25,836.24 Dernehl (02-0320): offer-$13,331.00 award-$ 6,000.00 Wright 1 (02-0321): offer-$17,000.00 award-$10,000.00 Wright 2 (02-0326): offer-$18,000.00 award-$12,500.00 Cusack (02-0359): offer-$13,941.00 award-$15,328.56 consisted primarily of the condemnors' admissions that In all the cases, the landowners filed cross-motions the landowners had to sign the proposed right-of-way for partial summary judgment and pleas to the jurisdic- agreements in order to accept the offers. tion, arguing that the trial courts lacked jurisdiction over the condemnation proceedings because the con- The trial court in each of the cases initially granted demnors failed to comply with section 21.012's “unable the condemnors' motions for partial summary judgment to agree” requirement. The landowners argued that the and overruled the objections to Dunwoody's affidavits. condemnors could not satisfy the “unable to agree” re- Five of the cases— Hubenak 1, Hubenak 2, Wenzel, quirement unless they established that they had engaged Kutach, and Cusack Ranch —then went to trial on the in “good faith” negotiations with the landowners before amount of damages. The juries in Hubenak 2 and initiating condemnation proceedings. The landowners Kutach awarded damages to the landowners that were FN15 asserted that the condemnors' offers were not “bona less than what the condemnors had offered them, fide” or made in good faith because the offers were sub- and the juries in Hubenak 1, Wenzel, and Cusack Ranch ject to the landowners' executing the right-of-way awarded more than what the condemnors had offered FN16 agreements attached to the final offer letters, which in- for the easements. The landowners in the other cluded the three additional matters that the condemnors four cases, however, filed supplemental pleas to the jur- had not explicitly sought to condemn and that the isdiction based on Hubenak v. San Jacinto Gas Trans- FN17 landowners maintained the condemnors could not leg- mission Co., in which the First Court of Appeals ally condemn. The landowners also objected to Dun- in Houston reversed the trial courts' judgments in woody's affidavits as hearsay, conclusory, and incom- Hubenak 1, Hubenak 2, Wenzel, and Kutach and held plete. The landowners' summary judgment evidence that the trial courts lacked jurisdiction because the con-

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demnor did not negotiate for the same rights it sought to the “unable to agree” requirement had been satisfied. FN18 FN19 condemn. As a result, the trial courts in Cusack, Dernehl, Wright 1, and Wright 2 granted the landown- ers' jurisdictional pleas and dismissed the proceedings FN15. The jury awards were: for want of jurisdiction.*178 The Houston court of ap- peals, however, thereafter withdrew its original opinion in Hubenak v. San Jacinto on rehearing and held that

Hubenak 2 (02-0213): $4,331.00 Kutach (02-0216): $1,247.00

FN16. The jury awards were:

Hubenak 1 (02-0213): $ 9,395.00 Wenzel (02-0215): $15,879.00 Cusack Ranch(02-0217): $30,000.00 and Kutach, the court reasoned that further negotiations FN17. 2000 WL 1056416 (Tex.App.-Houston with the landowners were futile because they objected [1st Dist.] 2000), opinion withdrawn on rehg, to the construction of a pipeline on their properties un- 65 S.W.3d 791 (Tex.App.-Houston [1st Dist.] FN25 der any circumstances. 2001, pet. granted). FN20. Cusack Ranch, 71 S.W.3d at 396; FN18. Id. at *5. Hubenak, 65 S.W.3d at 794.

FN19. Hubenak, 65 S.W.3d at 794. FN21. Cusack Ranch, 71 S.W.3d at 398 (applying a de novo standard of review to the Accordingly, in the five cases that proceeded to tri- trial courts application of the law to the undis- al, the courts of appeals ultimately affirmed the sum- FN20 puted facts); Hubenak, 65 S.W.3d at 798 mary judgments in favor of the condemnors. Al- (applying a no evidence standard of review). though the courts applied different standards of review, FN21 the courts agreed that section 21.012's require- FN22. Cusack Ranch, 71 S.W.3d at 400 (“We ments are jurisdictional and that there is legally suffi- find the evidence, as a whole, establishes that cient evidence to support the trial courts' implied find- MidTexas engaged in good faith negotiations ings that the condemnors satisfied the “unable to agree” sufficient to satisfy the requirement that it was requirement by negotiating in good faith and making unable to agree with Cusack on the amount of bona fide offers to purchase the easements before insti- damages prior to instituting the condemnation FN22 tuting the underlying condemnation proceedings. proceeding.”); Hubenak, 65 S.W.3d at 801 These courts also held that including the three addition- (holding that the evidence was sufficient to al matters in the final offers did not negate good faith show that the condemnor satisfied section because there was no evidence that inclusion of the ad- 21.012's requirements “not only because nego- ditional matters was an impediment to the parties' abil- tiations with the Landowners were in fact fu- FN23 ity to agree on damages. Rather, the courts noted, tile, but also because San Jacinto made bona the landowners simply did not want a pipeline located fide offers to them”). FN24 on their properties. Both courts further stated that futility is an exception to the requirement of good faith FN23. Cusack Ranch, 71 S.W.3d at 400; negotiations, and in Hubenak 1, Hubenak 2, Wenzel, Hubenak, 65 S.W.3d at 800–01.

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FN24. Cusack Ranch, 71 S.W.3d at 399; tion, or the other issues in these consolidated cases, it is Hubenak, 65 S.W.3d at 799. helpful to understand the procedural steps in a condem- nation proceeding. The filing of the petition required by FN25. Hubenak, 65 S.W.3d at 799. section 21.012 in either a district court or county court FN30 at law is the first step. When a petition is filed, The results on appeal differed with regard to the the judge of the court appoints “three disinterested free- four cases dismissed for want of jurisdiction. The court holders who reside in the county as special commission- of appeals in Cusack reversed the trial court's dismissal FN31 ers to assess the damages.” These commissioners for want of jurisdiction, holding that the condemnor's convene a hearing and determine the value of the prop- offer was virtually identical to the offer in Cusack FN32 erty condemned and any damage to the remainder. Ranch and that the offer was legitimate and showed that Any party may object to the special commissioners' the parties were unable to agree despite having particip- FN26 findings, and if there are objections, “the court shall cite ated in good faith negotiations. The court of ap- the adverse party and try the case in the same manner as peals in Dernehl, Wright 1, and Wright 2, however, af- FN33 other civil causes.” firmed the dismissals, applying a legal sufficiency standard of review and holding in each case that the FN29. TEX. PROP.CODE § 21.012. condemnor did not conclusively establish that the FN27 parties were “unable to agree.” The court said that FN30. Id. § 21.001. in each case there was some evidence to support the tri- al court's dismissal because the condemnor's only offers FN31. Id. § 21.014. to the landowners included property rights that the con- FN28 FN32. Id. §§ 21.015, .016. demnor did not ultimately seek to condemn. *179 None of the courts of appeals considered whether the FN33. Id. § 21.018. condemnors could legally have sought to condemn the three additional matters, and none considered the Over the years, the courts have interpreted these landowners' objections to Dunwoody's affidavits. Property Code provisions and their statutory prede- cessors. This Court has described the initial filing of the FN26. 141 S.W.3d at 215, 2002 WL 368639. petition and the commissioners' hearing as an “administrative proceeding” that “converts into a nor- FN27. Dernehl, 71 S.W.3d at 858; Wright 1, mal pending cause” when objections to the commission- 141 S.W.3d at 208, 2002 WL 264833 at *2; FN34 ers' award are filed. We have also said that filing Wright 2, 141 S.W.3d. at 211, 2002 WL objections “ ‘vacate[s] the award of the special Com- 32626070 at *2. FN35 missioners.’ ” A number of courts of appeals have FN28. Dernehl, 71 S.W.3d at 858; Wright 1, held that objections that the condemnor did not make an 141 S.W.3d at 208, 2002 WL 264833 at *2; effort to agree cannot be raised during the administrat- Wright 2, 141 S.W.3d. at 211, 2002 WL ive phase before the special commissioners, but must be 32626070 at *2. raised in the trial court after the commissioners' award FN36 has issued. This Court, as well as courts of ap- We granted the petitions for review in all nine cases peals, have further held that if a landowner participates and consolidated them because they involve substan- in the hearing before the special commissioners, the tially similar facts, arguments, and briefing. landowner waives the right to complain that the con- FN37 demnor did not make an effort to agree. II Before we consider whether the “unable to agree” FN34. Amason v. Natural Gas Pipeline Co., requirement contained in section 21.012 of the Texas 682 S.W.2d 240, 242 (Tex.1984). FN29 Property Code implicates subject matter jurisdic-

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FN35. Id. at 243 (quoting Denton County v. FN38. TEX. PROP.CODE § 21.012(a). Brammer, 361 S.W.2d 198, 200 (Tex.1962)). (1) describe the property to be condemned; FN36. See, e.g., Seiler v. Intrastate Gathering Corp., 730 S.W.2d 133, 137–38 (Tex.App.-San (2) state the purpose for which the entity intends to Antonio 1987, no writ), overruled on other use the property; grounds by Schumann v. City of Schertz, 100 (3) state the name of the owner of the property if the S.W.3d 361 (Tex.App.-San Antonio 2002, no owner is known; and pet.); City of Houston v. Plantation Land Co., 440 S.W.2d 691, 694–95 (4) state that the entity and the property owner are un- (Tex.Civ.App.-Houston [14th Dist.] 1969, writ FN39 able to agree on the damages. ref'd n.r.e.); City of Dallas v. Crawford, 222 S.W. 305, 307 (Tex.Civ.App.-Amarillo 1920, writ dism'd); Rabb v. La Feria Mut. Canal Co., FN39. Id. § 21.012(b). 62 Tex.Civ.App. 24, 130 S.W. 916, 918 (1910, We note at the outset that the condemnation peti- writ ref'd). tions in these cases all include affirmative statements FN37. See, e.g., Jones v. City of Mineola, 203 that there has been compliance with these requirements, S.W.2d 1020, 1023 (Tex.Civ.App.-Texarkana including the “unable to agree” requirement. The 1947, writ ref'd); Brown v. Lower Colo. River landowners contend, however, that beyond merely Auth., 485 S.W.2d 369, 371 “stat[ing]” that the parties were unable to agree, the (Tex.Civ.App.-Austin 1972, no writ); City of condemnors were required to plead and prove that the Austin v. Hall, 446 S.W.2d 330, 336 parties were unable to agree after having engaged in (Tex.Civ.App.-Austin 1969), rev'd on other “good faith” negotiations. The landowners argue—and grounds, 450 S.W.2d 836 (Tex.1970); the courts of appeals agreed—that failure to both plead Lohmann v. Natural Gas Pipeline Co. of Am., and prove compliance with section 21.012's require- 434 S.W.2d 879, 882 (Tex.Civ.App.-Beaumont ments deprives the trial court of jurisdiction over the 1968, writ ref'd n.r.e.); Aronoff v. City of Dal- condemnation proceedings. The condemnors respond las, 316 S.W.2d 302, 306 that the “unable to agree” requirement is not jurisdic- (Tex.Civ.App.-Texarkana 1958, writ ref'd tional. For the reasons considered below, we conclude n.r.e.). that this statutory requirement is mandatory, but failure to satisfy it does not deprive courts of subject matter *180 None of the landowners in the cases before us jurisdiction. today participated in the hearings held by the special commissioners. They first raised their respective con- There is no language in section 21.012 indicating tentions that there were no good faith negotiations in the that the “unable to agree” requirement is jurisdictional. trial court, after the commissioners' awards were issued. Nor did section 21.012's statutory predecessors indicate by the language used that the “unable to agree” require- FN40 III ment was jurisdictional. Nevertheless, in 1943, [1] Section 21.012(a) states that a condemning en- Brinton v. Houston Lighting & Power Co. held that the tity “may begin a condemnation proceeding” if it is “provisions for the condemnation of private property for “unable to agree with the owner of the property on the public use are special and summary in character, hence FN38 amount of damages.” Section 21.012(b) also must be strictly complied with by the condemning au- states that a petition commencing a condemnation pro- thority, any ignoring thereof rendering the proceedings FN41 ceeding “must”: wholly void.” That decision concluded that the “statute seems to be explicit in its requirement that there

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must have been in advance of condemnation proceed- (Tex.App.-Dallas 2002, no pet.); Mercier v. ings at least a bona fide effort on the part of the con- MidTexas Pipeline Co., 28 S.W.3d 712, 720 demnor to agree with its adversary, the land owner, in (Tex.App.-Corpus Christi 2000, pet. denied); advance ‘upon the value of the land or the damages.’ ” Marburger v. Seminole Pipeline Co., 957 FN42 Five years later, the court of appeals in City of S.W.2d 82, 89 (Tex.App.-Houston [14th Dist.] Houston v. Derby said in dicta that for the condemnor 1997, pet. denied); Precast Structures, Inc. v. “to vest the county court with jurisdiction to condemn City of Houston, 942 S.W.2d 632, 636 appellees' land, it had to first allege, and *181 then dur- (Tex.App.-Houston [14th Dist.] 1996, no writ); ing the proceedings prove, that it had failed to agree State v. Schmidt, 894 S.W.2d 543, 545 n. 1 with the appellees on the value of their land to be (Tex.App.-Austin 1995, no writ); Tex.–N.M. FN43 taken.” This Court refused the application for writ Power Co. v. Hogan, 824 S.W.2d 252, 254 of error in Derby, giving that opinion the same force (Tex.App.-Waco 1992, writ denied); and effect as an opinion of this Court. A number of oth- Schlottman v. Wharton County, 259 S.W.2d er courts of appeals have similarly held or said in dicta 325, 330 (Tex.Civ.App.-Fort Worth 1953, writ that the “unable [or failure] to agree” provision is juris- dism'd); Gill v. Falls County, 243 S.W.2d 277, dictional or that failure to comply renders the condem- 280 (Tex.Civ.App.-Waco 1951, no writ); FN44 nation proceeding void. Doughty v. Defee, 152 S.W.2d 404, 410 (Tex.Civ.App.-Amarillo 1941, writ ref'd FN40. See Act of Aug. 28, 1961, 57th Leg., w.o.m.); Cook v. Ochiltree County, 64 S.W.2d R.S., ch. 105, § 1, 1961 Tex. Gen. Laws 203, 1018, 1020 (Tex.Civ.App.-Amarillo 1933, no 203; Act of Mar. 7, 1934, 43d Leg., 2d C.S., writ); Watt v. Studer, 22 S.W.2d 709, 711 ch. 37, § 1, 1934 Tex. Gen. Laws 89, 89; Act. (Tex.Civ.App.-Amarillo 1929, no writ); Clem- of Apr. 22, 1905, 29th Leg., ch. 73, §§ 2–13, ents v. Fort Worth & D.S.P. Ry. Co., 7 S.W.2d 1905 Tex. Gen. Laws 101, 101–02; Act of Apr. 895, 897 (Tex.Civ.App.-Amarillo 1928, no 28, 1903, 28th Leg., 1st C.S., ch. V, §§ 2–3, writ); Porter v. City of Abilene, 16 S.W. 107, 1903 Tex. Gen. Laws 10, 10–11; Act of Mar. 107 (Tex.Ct.App.1890, no writ); see also Jen- 26, 1885, ch. 56, 1885 Tex. Gen. Laws 54, 54; kins v. Jefferson County, 507 S.W.2d 296, 298 TEX.REV.CIV. STAT. arts. 4182–92, p. 603 (Tex.Civ.App.-Beaumont 1974, writ ref'd (1879); Paschals Ann. Digest, 5th ed., art. 4922 n.r.e.) (stating that courts have “no authority to (Laws of Tex. Vol. 1, p. 822). enter a decree of condemnation” unless the condemnor has made a “bona fide attempt” to FN41. 175 S.W.2d 707, 709 agree with the landowner); Isaac v. City of (Tex.Civ.App.-Galveston 1943, writ ref'd Houston, 60 S.W.2d 543, 545 w.o.m.). (Tex.Civ.App.-Galveston 1933, writ dism'd) FN42. Id. at 710. (holding that court was “without authority” to render a judgment in a condemnation proceed- FN43. 215 S.W.2d 690, 692 ing when there was no proof that parties were (Tex.Civ.App.-Galveston 1948, writ ref'd) unable to agree on damages). (emphasis added). [2] Other decisions of this Court, however, are in- FN44. ExxonMobil Pipeline Co. v. Harrison consistent with the proposition that compliance with the Interests, Ltd., 93 S.W.3d 188, 192 “unable to agree” provision is necessary to bestow sub- (Tex.App.-Houston [14th Dist.] 2002, pet. ject matter jurisdiction. Subject matter jurisdiction can- FN45 filed); McKinney Indep. Sch. Dist. v. Carlisle not be waived. But we have indicated that a Grace, Ltd., 83 S.W.3d 205, 208 landowner can waive any right to complain that there

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was no effort to agree. We have said that if the owner 1020, 1023 (Tex.Civ.App.-Texarkana 1947, has accepted the commissioners' award and withdrawn writ ref'd). the money from the registry of the court, the court has jurisdiction to adjudicate either the landowner's or the FN49. Brown v. Lower Colo. River Auth., 485 FN46 S.W.2d 369, 371 (Tex.Civ.App.-Austin 1972, State's contest of the commissioners' award, even though there was no proof of an effort to agree with the no writ); City of Austin v. Hall, 446 S.W.2d FN47 330, 336 (Tex.Civ.App.-Austin 1969), rev'd on owner. Another decision, in which we refused the application for writ of error, said that if “the owner of other grounds, 450 S.W.2d 836 (Tex.1970); the land sought to be condemned makes his appearance Lohmann v. Natural Gas Pipeline Co. of Am., before the special commissioners and resists the con- 434 S.W.2d 879, 882 (Tex.Civ.App.-Beaumont demnation proceedings upon the merits, he thereby 1968, writ ref'd n.r.e.); Aronoff v. City of Dal- waives whatever lack of efforts to reach a settlement las, 316 S.W.2d 302, 306 FN48 (Tex.Civ.App.-Texarkana 1958, writ ref'd there might have been.” Several other courts of appeals *182 have likewise said that a landowner can n.r.e.). waive the right to complain about the existence or ad- FN50. McConnico v. Tex. Power & Light Co., equacy of an effort to agree by appearing before the 335 S.W.2d 397, 400 (Tex.Civ.App.-Beaumont commissioners and resisting condemnation or contest- FN49 1960, writ ref'd n.r.e.). ing the amount of damages, or by withdrawing the FN50 Commission's award from the court's registry. In FN51. See supra notes 49–50; see also Coastal those cases, the only issue to be tried was the owner's Indus. Water Auth., 592 S.W.2d at 599. FN51 complaint that the damages were inadequate. At least two decisions have also held that any complaint FN52. Jenkins v. Jefferson County, 507 S.W.2d about efforts to agree is a matter that must be plead by 296, 298 (Tex.Civ.App.-Beaumont 1974, writ FN52 the owner or it is waived, even if the evidence es- ref'd n.r.e.); Dyer v. State, 388 S.W.2d 226, tablishes as a matter of law that there was no effort to 230 (Tex.Civ.App.-El Paso 1965, no writ). FN53 agree. FN53. Dyer, 388 S.W.2d at 230. But see FN45. Dubai Petroleum Co. v. Kazi, 12 S.W.3d County of Nueces v. Rankin, 303 S.W.2d 455, 71, 76 (Tex.2000); Fed. Underwriters Exch. v. 457 (Tex.Civ.App.-Eastland 1957, no writ) Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (holding that it was incumbent on the condem- (1943). nor to plead that the owner waived lack of ef- forts to agree). FN46. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex.1984); State v. Jack- The inconsistency between decisions saying that son, 388 S.W.2d 924, 925 (Tex.1965); see also the “unable to agree” provision implicates subject mat- Coastal Indus. Water Auth. v. Celanese Corp. ter jurisdiction and those saying failure to comply can of Am., 592 S.W.2d 597, 599 (Tex.1979) be waived may have led this Court to note in State v. FN54 (landowner who withdrew the special commis- Dowd, forty-five years after the decision in FN55 sioners' award from the court's registry waived Derby, that “[w]e express no opinion on whether its challenge to the condemnor's right to take the trial court would have lacked jurisdiction of the ac- the subject property but could continue to litig- tion had the State failed to negotiate in good faith.” FN56 ate the issue of compensation). In Dowd, the court of appeals had concluded that, absent pleading and proof that the parties were “unable FN47. Jackson, 388 S.W.2d at 925. to agree,” the trial court lacked jurisdiction, and that a fact question existed that should be resolved by the trial FN48. Jones v. City of Mineola, 203 S.W.2d

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FN57 judge. The trial court had dismissed the proceed- & REM.CODE § 71.031(a)). ings. This Court held that there was no fact question and that the trial court should not have dismissed the pro- FN62. Id. at 76–77. FN58 ceedings. In so holding, we acknowledged that some of the FN54. 867 S.W.2d 781 (Tex.1993). Court's earlier opinions, including Mingus v. Wadley, FN63 differentiated between common-law claims and FN55. 215 S.W.2d 690, 692 statutory claims when considering whether a trial court (Tex.Civ.App.-Galveston 1948, writ ref'd). had jurisdiction over a particular matter:

FN56. 867 S.W.2d at 783 n. 1. FN63. 115 Tex. 551, 285 S.W. 1084 (1926), overruled by Dubai Petroleum Co. v. Kazi, 12 FN57. State v. Hipp, 832 S.W.2d 71, 75 S.W.3d 71 (Tex.2000). (Tex.App.-Austin 1992), rev'd in part sub. nom., State v. Dowd, 867 S.W.2d 781 “The general rule is where the cause of action and (Tex.1993). remedy for its enforcement are derived not from the common law but from the statute, the statutory provi- FN58. Dowd, 867 S.W.2d at 783. sions are mandatory and exclusive, and must be com- plied with in all respects or the action is not maintain- If the “unable to agree” requirement were necessary able.” ... “ ‘[T]here is no presumption of jurisdiction to confer subject matter jurisdiction, then judgments in where a court, although it is one of general jurisdic- condemnation proceedings would be subject to collater- FN59 tion, exercises special statutory powers in a special al attack. In construing other mandatory statutory statutory manner or otherwise than according to the provisions, we have observed that “ ‘the modern direc- courts of the common law, since under such circum- tion of policy is to reduce the vulnerability of final stances the court stands with reference to the special judgments to attack on the ground that the tribunal FN60 power exercised on the same footing with courts of lacked subject matter jurisdiction.’ ” We thus FN64 limited and inferior jurisdiction.’ ” held in Dubai Petroleum Co. v. Kazi that section 71.031(a) of the Texas Civil Practice and Remedies FN64. Kazi, 12 S.W.3d at 75–76 (quoting Min- Code, which permits foreign plaintiffs to sue in Texas gus, 285 S.W. at 1087, 1089 (Tex.1926) courts for personal*183 injuries or wrongful death oc- (quoting 15 CORPUS JURIS Courts, § 148(c), curring in a foreign state or country if the decedent or at 831–32)). injured party's country of citizenship has “equal treaty FN61 rights” with the United States, was not jurisdic- We determined, however, that this dichotomy tional, but was a requirement that should be met before between common-law and statutory actions was anti- FN62 a trial court proceeds. quated and problematic, stating: “When, as here, it is difficult to tell whether or not the parties have satisfied FN59. See Dubai Petroleum Co. v. Kazi, 12 the requisites of a particular statute, it seems perverse to S.W.3d 71, 76 (Tex.2000); see also RESTATE- treat a judgment as perpetually void merely because the MENT (SECOND) OF JUDGMENTS § 12 court or the parties made a good-faith mistake in inter- cmt. b (1982). FN65 preting the law.” We overruled Mingus “to the extent that it characterized the plaintiff's failure to es- FN60. Dubai, 12 S.W.3d at 76 (quoting RE- FN66 tablish a statutory prerequisite as jurisdictional.” STATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e (1982)). FN65. Id. at 76.

FN61. Id. at 73–74 (citing TEX. CIV. PRAC. FN66. Id.

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We see no substantive distinction between the the parties can engage in negotiations for the land to be nature of the statutory requirement at issue in Dubai and condemned, just as they would have done before the section 21.012's “unable to agree” requirement. As at proceedings were initiated. We therefore conclude that least one other court has recognized, in construing a if a landowner objects in a pleading that there has been statutory requirement that a condemning authority make no offer, and a trial court finds that the requirement that FN74 reasonable, good faith efforts to negotiate as a pre- the parties are “unable to agree on the damages” requisite to commencing condemnation proceedings, “ has not been met, the trial court should abate the pro- ‘jurisdiction’ has proven to be a ‘word of elastic, di- ceedings for a reasonable period of time to allow the FN67 verse, and disparate meanings.’ ” That court like- condemnor to satisfy the “unable to agree” requirement. wise concluded that a requirement for negotiations “is If at the end of a reasonable period of time, the condem- not a restriction on the court's subject matter jurisdic- nor has not made an offer, the condemnation proceeding FN68 tion.” Thus, although section 21.012's require- should be dismissed. ments are mandatory, the trial courts in these consolid- ated cases had jurisdiction over the condemnation pro- FN70. Albertson's, Inc. v. Sinclair, 984 S.W.2d ceedings regardless of whether the condemnors satisfied 958, 961 (Tex.1999) (citing Hines v. Hash, 843 the requirement that the parties “are unable to agree on S.W.2d 464, 467 (Tex.1992), and Schepps v. the damages.” We therefore disapprove of those court Presbyterian Hosp. of Dallas, 652 S.W.2d 934, of appeals decisions that have held or suggested that 938 (Tex.1983)). FN69 these statutory requirements are jurisdictional. FN71. County of Nueces v. Rankin, 303 S.W.2d FN67. Minto v. Lambert, 870 P.2d 572, 575 455, 457 (Tex.Civ.App.-Eastland 1957, no (Colo.Ct.App.1994, cert.denied). writ) (citing Fort Worth Indep. Sch. Dist. v. Hodge, 96 S.W.2d 1113 (Tex.Civ.App.-Fort FN68. Id. at 576. Worth 1936, no writ)); see also Schlottman v. Wharton County, 259 S.W.2d 325, 330 FN69. See cases cited supra note 44. (Tex.Civ.App.-Fort Worth 1953, writ dism'd) (purpose of requirement is to save time and ex- *184 [3] Having determined that section 21.012's pense when agreement is possible); Clements v. requirements are not jurisdictional, we must determine Fort Worth & D.S.P. Ry. Co., 7 S.W.2d 895, the appropriate remedy when a condemnor fails to meet 897 (Tex.Civ.App.-Amarillo 1928, no writ). those requirements and a landowner has timely objec- ted. Because the statute is silent as to the consequences FN72. See, e.g., Hines, 843 S.W.2d at 468–69 for noncompliance, we look to the statute's purpose in (purpose of Deceptive Trade Practices Act's FN70 determining the proper remedy. The purpose of notice requirement is “to discourage litigation section 21.012's “unable to agree” requirement is to “ and encourage settlements of consumer com- ‘forestall litigation and to prevent needless appeals to plaints”); Schepps, 652 S.W.2d at 938 (purpose the courts when the matter may have been settled by ne- of the Medical Liability and Insurance Im- FN71 gotiations between the parties.’ ” In considering provement Act's pre-suit notice requirement is the remedy for noncompliance with the requirements of “to encourage pre-suit negotiations so as to statutes with similar purposes, we have repeatedly held avoid excessive cost of litigation”). that dismissal is not necessary to achieve such a pur- FN72 pose. Rather, the statute's goal—avoidance of pro- FN73. Sinclair, 984 S.W.2d at 961–62 (holding tracted litigation—can be accomplished by requiring an that failure to comply with statutory require- abatement of the proceeding until the requirement that ment that a petition for judicial review of a the parties “are unable to agree” has been satisfied. workers' compensation decision be filed simul- FN73 While the condemnation proceedings are abated, taneously with the court and the Workers'

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Compensation Commission warrants abate- in Schlottman v. Wharton County, the court held that an ment, not dismissal, of the action); Hines, 843 offer by the condemnor that is rejected or ignored is S.W.2d at 469 (holding that abatement is the enough: appropriate remedy for plaintiff's failure to comply with the Deceptive Trade Practices FN76. See, e.g., Lapsley v. State, 405 S.W.2d Act's pre-suit notice provision); State v. 406, 411 (Tex.Civ.App.-Texarkana 1966, writ $435,000.00, 842 S.W.2d 642, 645 (Tex.1992) ref'd n.r.e.). (holding that compliance with the statutory re- FN77. See, e.g., Mercier v. MidTexas Pipeline quirement that a hearing be conducted within Co., 28 S.W.3d 712, 720 (Tex.App.-Corpus 30 days of the filing of an answer in a forfeit- Christi 2000, pet. denied); State v. Hipp, 832 ure action was mandatory, but noncompliance S.W.2d 71, 78 (Tex.App.-Austin 1992), rev'd did not necessitate dismissal of the action); on other grounds sub. nom., State v. Dowd, 867 Schepps, 652 S.W.2d at 938 (holding that S.W.2d 781 (Tex.1993); Jenkins v. Jefferson abatement is the appropriate remedy for a County, 507 S.W.2d 296, 298 plaintiff's failure to comply with the Medical (Tex.Civ.App.-Beaumont 1974, writ ref'd Liability and Insurance Improvement Act's pre- n.r.e.); Curfman v. State, 240 S.W.2d 482, 484 suit notice requirement). (Tex.Civ.App.-Dallas 1951, writ ref'd n.r.e.). FN74. TEX. PROP.CODE § 21.012. FN78. In dicta, the court in Lapsley v. State IV said: “This statute contemplates good faith ne- [4] The procedural vehicle chosen by the condem- gotiation. Such negotiation would require an nors to determine whether they were “unable to agree” effort by the condemnor to investigate all as- with the landowners in the cases before us was a motion pects of value and prepare work sheets and re- for partial summary judgment. Trial courts *185 can, capitulation sheets when necessary or conveni- however, resolve “unable to agree” issues through other ent in furtherance of the statutory settlement procedural vehicles, as they resolve many threshold pre- objective.” 405 S.W.2d at 411; see also Precast trial matters, including ruling on a plea in abatement. Structures, Inc. v. City of Houston, 942 S.W.2d FN75 632, 635–36 (Tex.App.-Houston [14th Dist.] Because the issue was raised in the present cases in motions for partial summary judgment asserting that 1996, no writ) (examining validity of condem- the condemnors established as a matter of law that they nor's legal theory regarding damages and evid- were “unable to agree” with the landowners, we must ence consistent with that theory in determining determine whether there are any questions of fact. if a “bona fide” offer was made by the condem- nor); Hipp, 832 S.W.2d at 78–79 (same). FN75. See, e.g., Anderson v. Clajon Gas Co., 677 S.W.2d 702, 706 (Tex.App.-Houston [1st [A]ll that is required to comply with the statute is the Dist.] 1984, no writ). making of an offer by a county, and ... nothing affirm- ative is required to be done by the landowner. In other The landowners contend that there is a fact question words, in a case where the landowner “stands mute” in each case about whether the condemnors made a and neither accepts nor rejects the offer so made to “good faith” effort to agree on the damages. Some cases him by or in behalf of a county, the law will construe FN76 have used the terms “good faith” negotiation and his silence [as] a rejection of the offer, and that such a FN77 “bona fide” effort in conjunction with the “unable showing constitutes “a failure to agree” on the part of FN79 to agree” requirement. However, with some exceptions, the parties. FN78 the case law has required minimal evidence to satisfy the “unable to agree” requirement. For example, FN79. 259 S.W.2d 325, 330

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(Tex.Civ.App.-Fort Worth 1953, writ dism'd); FN83. Id. (rejecting argument that because see also Pete–Rae Dev. Co. v. State, 353 landowners “continued to express an interest in S.W.2d 324, 325 (Tex.Civ.App.-Eastland 1962, negotiating,” the parties were not unable to writ ref'd n.r.e.); Curfman, 240 S.W.2d at 484. agree).

Similarly, the court in Malone v. City of Madison- We are also persuaded that the dollar amount of the ville held: offer generally should not be scrutinized. The decisions that have implicitly or explicitly concluded that the dol- If the law required that both the landowner and the lar amount of the condemnor's offer should not be com- party desiring to condemn should make an effort to pared with other indications of value are consistent with agree on the amount of damages, before such con- the statutory scheme, which does not contemplate such demnation proceedings could be instituted, then all FN84 an examination. Nor does the statute contemplate the landowner would have to do to avoid condemna- a subjective inquiry into “good faith.” As discussed tion would be to refuse to make any effort to agree earlier, the purpose of the statute is “to forestall litiga- with the party desiring to condemn on the damages. FN85 FN80 tion and to prevent needless appeals.” An inquiry into the subjective “good faith” of a condemnor's offer would be antithetical to this purpose. First, independent FN80. 24 S.W.2d 483, 485 commissioners will have reached a determination of (Tex.Civ.App.-Waco 1929, no writ); see also damages before the landowner may even raise the W.T. Waggoner Estate v. Townsend, 24 S.W.2d “unable to agree” objection. If the landowner accepts 83, 86 (Tex.Civ.App.-Amarillo 1929, no writ) the commissioners' assessment, the matter is at an end. (holding that when owner was asked “what he It is only after the landowner has rejected any offer by was willing to settle the matter for” and the the condemnor, and after independent commissioners price was more than the condemnor would pay, reach a conclusion and it is clear that litigation is going this satisfied statutory requirement). to proceed, that the landowners can raise the “unable to FN86 agree” issue. Second, whether an offer by a con- *186 In McKinney Independent School District v. demning authority was made in “good faith” would, in Carlisle Grace, Ltd., the court held that the fact that a most cases, be determined in large measure by the reas- condemning authority did not wait for a counteroffer onable market value of the property sought to be con- from the landowner is “no evidence to support the trial demned or the amount of inverse condemnation dam- court's non-finding on the unable-to-agree require- ages, or both. The inquiry in the trial court's condemna- FN81 ment.” That court also held, “We likewise reject tion proceeding—to determine the reasonable market [landowners'] contention that [condemnor's] failure to value of the property sought to be condemned and any provide them with the appraisal ... supports a negative inverse condemnation damages—would thus be largely FN82 finding on the unable-to-agree requirement.” The duplicative. The purpose of section 21.012's require- landowners in the current proceedings argue that there ment that the parties be “unable to agree” is not to re- is at least an inference that they were willing to contin- quire a trial on reasonable market value before the con- ue to negotiate, even though they either rejected or ig- demnation trial may begin. The condemnation trial will nored offers that the condemnors made. But we, like the determine the property's value and any damage to the FN83 court in McKinney, reject such a contention. remainder. No purpose would be served by delaying that determination to first decide whether the con- FN81. 83 S.W.3d 205, 209 (Tex.App.-Dallas demning authority's offer was so low and made under 2002, no pet.). such circumstances that it *187 could not have been made in “good faith.” At the end of the day, the result FN82. Id. would be the same if two trials rather than just one were

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held. The landowner will receive no more and no less sought to condemn or could legally condemn, and there- than the amount awarded as a result of the condemna- fore, have not met section 21.012's “unable to agree” re- tion proceedings, even if the condemnor's pre-suit offer quirement. The three matters at issue are the right to was not made in “good faith.” It is not necessary to transport oil and other products, the right to assign the have two trials to reach the ultimate and only determin- easements, and a warranty of title to the easement. ation contemplated by the statute, which is a determina- tion of the value of the property condemned. We have found only one Texas decision that bears directly on the question raised by the landowners, and FN84. See, e.g., City of Houston v. Derby, 215 that case was decided after, and relies on, some of the FN87 S.W.2d 690, 693 (Tex.Civ.App.-Galveston court of appeals decisions under review here. 1948, writ ref'd) (“The only purpose for which However, decisions from other jurisdictions are in- the sums offered during negotiations can be structive. The Illinois Supreme Court held that a con- looked to is to determine how the costs shall be demnor had shown “a good faith attempt to negotiate” cast.”). But see Mercier v. MidTexas Pipeline in spite of the fact that the condemnor had sought great- FN88 Co., 28 S.W.3d 712, 720 (Tex.App.-Corpus er rights through negotiations than it condemned. Christi 2000, pet. denied) (finding that because That court said: condemnor's offer was twice the Appraisal Dis- trict's appraisal, the offer was “bona-fide”). FN87. ExxonMobil Pipeline Co. v. Harrison Interests, Ltd., 93 S.W.3d 188, 196–97 FN85. Hubenak, 65 S.W.3d at 797 (quoting (Tex.App.-Houston [14th Dist.] 2002, pet. County of Nueces v. Rankin, 303 S.W.2d 455, filed). 457 (Tex.Civ.App.-Eastland 1957, no writ)). FN88. Peoples Gas Light & Coke Co. v. FN86. See cases cited supra note 36. Buckles, 24 Ill.2d 520, 182 N.E.2d 169, 174 (1962). The condemnors have established that they made offers to each of the landowners before filing condem- It is true that the instrument which the plaintiff first nation proceedings. Those offers were rejected or ig- sought the defendants to execute was broader than the nored by the landowners. That is enough to satisfy sec- ultimate right condemned, in that it involved possible tion 21.012's requirement that the parties were “unable damage to, and entry upon the surface of defendants' to agree.” For the reasons to which we now turn, we land. Nevertheless, on this record, we think plaintiff find no merit in the landowners' remaining bases for has shown a good faith attempt to negotiate. The wide contending that the condemnors have not established as spread between the offering price of the plaintiff and a matter of law the “unable to agree” requirement. the demand of the defendants, based on their differing theories of value for the storage rights, shows that no V practical solution could have been reached through [5] The landowners do not contend that the con- FN89 further negotiation. demnors' final offers included land or physical property in addition to or different from that described in the FN89. Id. condemnation petition. But the landowners have con- sistently pointed to the fact that the condemnors' final The Oregon Supreme Court held that an “unable to offers all included three matters that were not explicitly agree” requirement was met even though the condemnor included in the condemnation petitions and have argued offered to pay for easements that only permitted the that the condemnors could not legally acquire them by owner to cross and recross the road, but in the condem- condemnation. Thus, the landowners contend, the con- nation proceedings, the owner was permitted to use the FN90 demnors never made offers for what they actually road through a *188 reservation. The Oregon

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court concluded that it was evident from the litigation towers, while the pre-litigation offer was not specific as itself that the parties could not agree, and the court also to the number of towers and required certain rights of noted that the owner had demanded $70,000 while the ingress and egress and removal of endangering obstruc- condemnor offered $4,000, concluding, “it is hard for us tions, none of which were part of the condemnation pro- FN96 to believe that there is any chance that the parties could ceedings. FN91 reach an agreement outside of court.” FN96. Blaize v. Pub. Serv. Co. of Ind., 158 FN90. Moore Mill & Lumber Co. v. Foster, Ind.App. 204, 301 N.E.2d 863, 865–66 (1973). 216 Or. 204, 336 P.2d 39, 60 (1959). The concurring opinion in the instant case cites an- FN91. Id. other Indiana case, Dzur v. Northern Indiana Public FN97 Service Co., and another New Jersey Supreme The New Jersey Supreme Court held that a chal- Court case, Central R. Co. of New Jersey v. The Hudson lenge to the “bona fides of the offer to purchase” had no FN98 Terminal Railway Co., for the proposition that a merit even though the pre-condemnation offer was to pre-condemnation offer must mirror the rights described purchase a fee simple interest and the law did not allow in the condemnation petition before it can be said that a fee simple estate to be acquired by condemnation. the parties were unable to agree on the damages for the FN92 FN99 property to be condemned. Those cases, however, are distinguishable because the condemnors sought to FN92. Camden Forge Co. v. County Park purchase more land than they were legally entitled to Commn. of Camden County, 14 N.J. Misc. 626, condemn. In Dzur, the condemnor offered to purchase a 186 A. 519, 520–21 (1936). 200–foot–wide utility easement and later sought to con- An Indiana court has held that statutory require- demn the same property. The Indiana Supreme Court ments were met even though the condemnor's offer determined that the condemnor was only entitled to a would have required an express merger of a former 150–foot–wide easement and held that the condemna- easement, with all rights under it to be governed by the tion proceedings could not recommence until the con- FN93 demnor made a separate offer for a 150–foot–wide ease- new easement. The landowners argued that the FN100 condemnor was attempting to “winkle [sic] ... away” the ment. In Hudson Terminal, the New Jersey court FN94 determined that a statute only authorized a railroad to landowners' rights in “old litigation.” The court said that the “obvious purpose of the language [in the condemn land *189 up to 100 feet in width, but the con- pre-condemnation offer] was to clear up title problems demnor had sought to condemn much more land. The growing out of the previous easements,” which could be court said that the condemnation proceedings could not accepted or rejected by the landowners, and that this ad- commence until the condemnor made an offer for only a FN101 ditional matter did not render the offer “inadequate.” 100–foot strip of land. Unlike Dzur and Hudson FN95 Terminal, the tracts of land subject to condemnation in the cases before us today are the same tracts of land FN93. Oxendine v. Pub. Serv. Co. of Ind., 423 identified in the condemnors' final offers to the N.E.2d 612, 621–22 (Ind.Ct.App.1980). landowners.

FN94. Id. at 622. FN97. 257 Ind. 674, 278 N.E.2d 563 (1972).

FN95. Id. FN98. 46 N.J.L. 289 (1884).

That same Indiana court held that a condemnor had FN99. 141 S.W.3d at 194 (JEFFERSON, J., met statutory requirements even though the condemna- concurring). tion complaint was specific that there would be four

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FN100. 278 N.E.2d at 566. offered the landowner $17,655.00, but the landowner objected to the amount offered FN101. 46 N.J.L. at 294. and demanded a re-routing of the pipeline. Condemnor would not agree to re-route, but In the consolidated cases before us, the condemnors increased its offer to $25,000.00, which the offered summary judgment evidence of their contacts landowner did not accept. with and offers to the landowners, counter-offers by the landowners in some cases, and the fact that none of the Dernehl (02–0320): Condemnor offered FN102 landowners accepted any offer. None of the three $11,333.00, landowners countered with matters in the proposed right-of way agreements that are $120,000.00, and condemnor countered with at issue in this appeal were at issue when the pre- $13,331.00. condemnation negotiations took place. The condemnors thus met their burden of submitting evidence that the Wright 1 (02–0321): Condemnor offered parties were unable to agree. The landowners did not re- $16,228.80 and $17,000.00. The landowners spond with any contention or evidence of the value of refused to sell despite the offers. the three matters about which they now complain or evidence that the owners would have accepted the offers Wright 2 (02–0326): Condemnor's highest if those matters had been omitted from the offers. This offer in this case was $18,000.00. The lack of controverting evidence was noted by the courts landowners refused to sell despite the offer. FN103 of appeals in Cusack Ranch and the consolidated Cusack (02–0359): Condemnor's highest of- Hubenak cases ( Hubenak 1, Hubenak 2, Wenzel, and FN104 fer was $13,941.00. The landowners Kutach ). countered that they wanted approximately FN102. In the interest of brevity, the offers in $35,000.00 and the line buried 48 inches each case are summarized: deep.

Hubenak 1 (02–0213): Condemnor's highest FN103. 71 S.W.3d at 400. combined offer was $6,089.80. The landown- FN104. 65 S.W.3d at 799, 801. ers indicated they might sell for significantly more. The concurrence suggests that our holding today would allow a condemnor to offer to buy 500 acres and Hubenak 2 (02–0214): Condemnor's highest then condemn “ ‘only a small strip in the corner of the combined offer was $24,602.65. The FN105 property.’ ” We disagree. It is the law in this landowners indicated they might sell for sig- state that the offer must be for the same tract of land de- nificantly more. FN106 scribed in the condemnation petition. In the cases Wenzel (02–0215): Condemnor's highest of- before us *190 today, the parcels of land sought in the fer was $14,620.38. The landowners refused pre-condemnation negotiations were the same parcels to sell regardless of any offer. that were the subject of the subsequent condemnation proceedings. The only difference between the offers and Kutach (02–0216): The landowner said it the condemnation petitions was that the three matters would sell for $500.00 per foot. The condem- identified in the proposed right-of-way agreements were nor countered with $6,360.00 and then not expressly included in the latter. There is, however, offered to re-route the pipeline and pay no indication that these three matters were material to $4,632.00. the negotiations or played any part in the parties' inabil- FN107 ity to agree “on the amount of damages.” Cusack Ranch (02–0217): Condemnor

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FN105. 141 S.W.3d at 195 (JEFFERSON, J., , (2), (3), .019(a). concurring) (quoting Dernehl, 71 S.W.3d at 861). FN109. 141 S.W.3d at 195 (JEFFERSON, J., concurring). FN106. See, e.g., Brinton v. Houston Lighting & Power Co., 175 S.W.2d 707, 709–10 FN110. See Marcus Cable Assocs., L.P. v. (Tex.Civ.App.-Galveston 1943, writ ref'd Krohn, 90 S.W.3d 697, 701–02, 706 w.o.m.) (holding that an offer to purchase an (Tex.2002) (outlining the basic principles for easement that did not mention any width but construing and interpreting a private easement merely was for sixty cents per rod did not es- and holding that an easement permitting its tablish the inability to agree on damages for an holder to use private property to construct and eighty-foot wide easement); see also Blaize v. maintain “an electric transmission or distribu- Pub. Serv. Co. of Ind., 158 Ind.App. 204, 301 tion line or system” did not allow the easement N.E.2d 863, 865 (1973) (indicating that before to be used for cable-television lines); Right of instituting condemnation proceedings, there Way Oil Co. v. Gladys City Oil, Gas & Mfg. must be negotiations for the property to be con- Co., 106 Tex. 94, 157 S.W. 737, 739–40 (1913) demned, which requires a “meeting of the (applying the ejusdem generis rule of construc- minds” as to the physical property “and not ne- tion to conclude that the phrase “all the timber, cessarily upon any of the more incorporeal earth, stone and mineral existing or that may be rights”). found within the right of way” in a private deed did not include oil where the purpose of the FN107. TEX. PROP.CODE § 21.012(a). grant was “constructing, operating and main- taining” a railroad and the general words “and The condemnors' proposed right-of-way agreements mineral” were preceded by the more specific would have given the condemnors the right to transport terms “timber, earth, stone”); cf. Hilco Elec. “gas, oil, petroleum, products, or any other liquids, Coop. v. Midlothian Butane Gas Co., Inc., 111 gases or substances which can be transported through a S.W.3d 75, 81 (Tex.2003) (observing that the pipeline.” The condemnors sought to condemn only a rule of “ejusdem generis” “provides that when natural gas pipeline. We note, however, that a common words of a general nature are used in connec- carrier who owns, operates, or manages a pipeline for tion with the designation of particular objects the transportation of crude oil has the right of eminent or classes of persons or things, the meaning of FN108 domain, and the transportation of natural gas as the general words will be restricted to the par- opposed to oil was not at issue in the negotiations. The ticular designation”). concurrence implies that the condemnors could have utilized the pipeline to transport radioactive material The concurrence would nevertheless hold that a even though the landowner might not have consented to condemnor cannot establish that it was “unable to FN109 a pipeline carrying such a substance. The concur- agree” with the landowner on damages unless the phys- rence provides no authority that would support such a ical property and intangible property rights the condem- broad construction of the right to transport “gas, oil, nor sought to purchase mirror the exact physical prop- petroleum, products, or any other liquids, gases or sub- erty and intangible property rights explicitly included in stances which can be transported through a pipeline.” a subsequent condemnation proceeding. The concur- Indeed, the authority and general principles of contract rence says “[t]his requirement is neither burdensome FN111 interpretation applicable to the construction of private nor complex.” We disagree. FN110 easements suggest the contrary. FN111. 141 S.W.3d at 196 (JEFFERSON, J., FN108. TEX. NAT. RES.CODE §§ 111.002(1) concurring).

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*191 [6] While it is a simple matter to describe Eastex Pipeline Co. v. Jarvis, 990 S.W.2d 852, with precision the physical property that would be sub- 855 (Tex.App.-Tyler 1999, pet. denied) (stating ject to the condemnation proceeding, inclusion of intan- that “pipeline easements are assignable in gible property rights in a condemnation petition does Texas” and holding that condemnor could as- not easily lend itself to the “bright-line rule” proposed sign its interest in a condemnation proceeding by the concurrence. The intangible rights a condemnor or judgment pursuant to TEX. PROP.CODE § could obtain by an agreement with the landowner may 12.014). not always parallel the rights the condemnor would ob- tain by virtue of a judgment (and vice versa) because a VI contract and a judgment are different animals. For ex- For the foregoing reasons, we conclude that section ample, although one might not be able to obtain a 21.012's requirements are not jurisdictional. But, if a landowner's obligation to warranty and defend title by condemning entity files a condemnation petition condemnation (which we do not decide), a final judg- without meeting section 21.012's requirements, and a FN112 landowner opposing condemnation timely requests ment is in and of itself a degree of warranty, and a condemnor could not precisely capture that type of abatement, the trial court should abate the proceedings warranty in a private agreement. With regard to assign- for a reasonable time to permit the condemnor to satisfy ments of easements, an easement for a pipeline obtained the statutory requirements. We conclude, however, that by a common carrier in an eminent domain proceeding the condemnors in the cases before us today complied could, at a minimum, be transferred, sold, or conveyed with section 21.012's requirement that the parties be to another common carrier to operate a pipeline as a “unable to agree on damages.” Accordingly, we (1) af- common carrier without an explicit request for such a firm the judgments of the courts of appeals in Hubenak FN113 1, Hubenak 2, Wenzel, Kutach, and Cusack Ranch; (2) right in the condemnation petition. Thus, to re- quire exact symmetry between the purchase offer and affirm the court of appeals' judgment in Cusack and re- the property rights to be condemned could create an im- mand that case to the trial court for further proceedings; pediment to the condemnation process that is not con- and (3) reverse the court of appeals' judgments in templated by the purpose of the “unable to agree” re- Dernehl, Wright 1, and Wright 2 and remand those quirement. Generally, it is sufficient that the parties ne- cases to their respective trial courts for further proceed- gotiated for the same physical property and same gener- ings. al use that became the subject of the later eminent do- Justice JEFFERSON filed a concurring opinion. main proceeding, even if the more intangible rights Justice O'NEILL and Justice SCHNEIDER did not par- sought in the purchase negotiations did not exactly mir- ticipate in the decision. ror those sought or obtainable by condemnation. *192 Justice Jefferson, concurring. FN112. See TEX. PROP.CODE § 21.065 (“A judgment of a court under this chapter vests a In each of these cases, the landowners have asserted right granted to a condemnor.”). that the condemnors failed to satisfy the unable-to-agree requirement prior to filing suit. I agree with them. I also FN113. See TEX. NAT. RES.CODE § agree with the Court that the requirement is not jurisdic- 111.0194(a) (describing presumption applic- tional and that, when the condemnor has not shown an able to certain grants or condemnation judg- inability to agree, the case should be abated for a reas- ments pertaining to easements held by a onable time until the condemnor makes an offer to pur- “common carrier pipeline, or a successor in in- chase the property. Under the unique circumstances of terest to the common carrier pipeline”); TEX. these cases, however, abatement would serve no pur- PROP.CODE § 12.014 (governing transfer of a pose. Accordingly, I join parts I through III of the judgment or cause of action); see also Valero Court's opinion and its judgments.

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I San Jacinto should have first made an offer only for The “Unable to Agree” Requirement the rights that were outlined in the board of directors The Property Code provides that, before a condem- resolution. That offer would have been bona fide. If nation suit is filed, the condemnor must be “unable to San Jacinto wanted additional rights, it could have agree with the owner of the property on the amount of then offered more money for those rights. San Jacinto damages,” and the condemnor must specifically plead skipped the first step. It never negotiated for the that inability in its petition. TEX. PROP.CODE § rights it ultimately sought to condemn. Accordingly, 21.012. This requirement was intended “to forestall lit- San Jacinto presented no evidence that its offer was in igation and to prevent needless appeals to the courts good faith or that negotiations would have been futile. when the matter may have been settled by negotiations Hubenak v. San Jacinto Gas Transmission Co., Nos. between the parties.” County of Nueces v. Rankin, 303 1–99–691–CV, 1–99–959–CV, 1–99–1359–CV, S.W.2d 455, 457 (Tex.Civ.App.—Eastland 1957, no 1–99–1360–CV, 2000 WL 1056416 writ). (Tex.App.—Houston [14th Dist.] July 27, 2000) (opinion withdrawn Dec. 13, 2001); see also *193Cu- In each of the cases we review today, the condem- sack Ranch Corp. v. MidTexas Pipeline Co., 71 nors' pre-suit offers included a “FINAL OFFER RIGHT S.W.3d 395, 399 (agreeing that method outlined in OF WAY AGREEMENT” for “a Natural Gas Pipeline.” initial Hubenak decision is the “better approach for The offers, made “in an effort to avoid further expense the condemnor,” although declining to require such or litigation,” concluded: “If you elect to reject this of- an approach). fer, [the condemnor] may institute a condemnation suit in [a designated court], to acquire the rights described Similarly, in MidTexas Pipeline Co. v. Dernehl, the in the Right of Way Agreement.” (Emphasis added.) The court of appeals held—correctly, in my opinion—that landowners were told that, unless they executed the MidTexas failed to satisfy the unable-to-agree require- Right of Way Agreements, the condemnors would peti- ment because it did not make an offer encompassing tion to condemn the rights those agreements described. only those rights it could seek to condemn: But the rights described in the Agreements included provisions that, in fact, the condemnors did not seek to [T]he legislative intent for [the bona fide attempt to condemn. The Right of Way Agreements sought, for ex- agree] requirement was to avoid the necessity of litig- ample, the right to transport not just natural gas, but ation if the parties could reach an agreement on the “any other liquids, gases or substances which can be purchase price of the property to be condemned.... We transported through a pipeline.” They also sought to ob- believe that the Legislature, by making this require- ligate the landowners “to warrant and defend title to the ment as a prerequisite to condemnation, intended easement.” bona fide negotiations for the property to be con- demned, not a negotiation that included other proper- In one of the cases before us, Hubenak v. San ties or rights beyond the condemnation. At no point Jacinto Gas Transmission Co., 65 S.W.3d 791, the does the evidence show in the present case that Mid- court of appeals initially held that San Jacinto failed to Texas made an offer including only those rights that it satisfy the unable-to-agree requirement before filing a was authorized to acquire through a condemnation condemnation petition. In an opinion by Justice proceeding. Offers to purchase property that included FN1 O'Connor, the court wrote: the property to be condemned but going beyond that in acquiring additional rights or properties is not FN1. After Justice O'Connor's retirement, the enough to satisfy a good faith negotiation. court granted the motion for rehearing and withdrew this opinion, deciding that the con- 71 S.W.3d at 858. On rehearing, the court added: demnors had satisfied the unable-to-agree re- This opinion does not say and does not imply the con- quirement. 65 S.W.3d at 801. demnor cannot make offers for and purchase property

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and rights which it cannot acquire by condemnation a result of the condemnation. ” 21 S.W.2d 597, 598 proceedings. However, such an offer should be made (Tex.Civ.App.—Waco 1929, no writ) (emphasis added). separate and apart from the offer made as a prerequis- ite by law to condemnation. This does not mean the Other jurisdictions have adopted a similar ap- property to be condemned cannot be a part of the sep- proach. The Indiana Supreme Court has held that, be- arate offer, as long as the owner is given the oppor- fore a condemnor can assert “inability to agree,” it must tunity to sell at a specific price only that property sub- have made an offer only for the property sought to be ject to condemnation. condemned. See Dzur v. N. Ind. Pub. Serv. Co., 257 Ind. 674, 278 N.E.2d 563 (Ind.1972) (holding that landown- Furthermore, a threat or pretense of condemnation er's rejection of offer to purchase 200 foot easement did made by the condemnor on land or for rights not sub- not demonstrate inability to agree, because 150 foot ject to condemnation and made in order to obtain ad- easement was the largest that could be condemned). The ditional property or rights constitutes a wrongful act court held: and an abuse of the right of eminent domain. “An effort to purchase the property sought to be ac- Id. at 861. The court of appeals adopted this same quired is a condition precedent to the right to main- approach in Wright I and Wright II. 141 S.W.3d 208, tain an action to condemn. There can be no compli- 2002 WL 264833 (No. 02–0321 in this Court); 141 ance with this requirement unless the subject of nego- S.W.3d 211, 2002 WL 32626070 (No. 02–0326 in this tiation is clear to both parties, since a meeting of the Court). minds is essential to the existence of a valid contract. If a [condemnor] makes an offer to acquire a particu- The initial Hubenak decision, Dernehl, Wright I, lar property, or a specific part thereof, which offer is and Wright II comport with earlier caselaw suggesting rejected by the owner of the utility, and if the that condemnors must make offers only for property [condemnor] then undertakes to condemn other or dif- rights they intend to or are able to condemn. In City of ferent property than that which it has offered to pur- Houston v. Derby, the court noted that the condemnor chase, it cannot be said that an effort was made to “had to first allege, and then during the proceedings purchase that which it sought to condemn. prove, that it had failed to agree with the appellees on the value of their land to be taken.” 215 S.W.2d 690, ... 692 (Tex.Civ.App.-Galveston 1948, writ ref'd) (emphasis added). This Court, by assigning City of Hou- It is conceivable that if the offer to purchase had re- ston a “writ refused” notation, adopted the court of civil lated to the property which is the subject of the con- appeals' judgment and reasoning as its own. See Texas demnation proceeding, the offer might have been ac- Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 199 cepted, in which event this litigation would not have (Tex.1997). In State v. Hipp & Dowd, the court of ap- been necessary.” peals noted that “[i]n the context of eminent domain Id. at 566 (quoting Ind. Serv. Corp. v. Town of proceedings, the offer must not be arbitrary and capri- Flora, 218 Ind. 208, 31 N.E.2d 1015, 1017 (Ind.1941)) cious; rather, it must be based on a reasonably thorough (citations omitted); see also 6 Julius L. Sackman, Nich- investigation and honest assessment of the amount of ols on Eminent Domain, § 24.14[1], at 24–234–35 (3d just compensation due the landowner as a result of the ed. 2004) (“If the condemnor, after making an offer to taking. ” 832 S.W.2d 71, 78 (Tex.App.—Austin 1992) acquire a particular property or a specific part thereof, (emphasis added), writ denied as to Hipp and rev'd sub undertook to condemn other and different property or a nom. on other grounds as to Dowd, State v. Dowd, 867 quantum thereof than it offered to purchase, there was S.W.2d 781, 783 (Tex.1993). In *194 Ryan v. State, the no effort to purchase for the land taken to satisfy the ne- court required precondemnation negotiations “as to the gotiation requirement. Similarly, if the condemnor's of- amount of damages which would be sustained by him as

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fer includes additional properties that it cannot acquire lished that they made offers to each of the landowners through condemnation proceedings, it has not satisfied before filing condemnation proceedings. Those offers the good faith negotiation requirement.”). were rejected or ignored by the landowners. That is enough to satisfy section 21.012's requirements that the Likewise, the New Jersey Supreme Court held that parties were ‘unable to agree.’ ” 141 S.W.3d at 191. a railroad's offer to purchase three parcels of land, when the railroad could legally condemn only a smaller, one- Under the standard adopted by the Court today, a hundred-foot strip of land, was not an offer sufficient to condemnor's offer for any property rights—including, satisfy the requirements for instituting a condemnation as in this case, those it does not seek to con- proceeding: demn—would satisfy the unable-to-agree requirement. Rather than discouraging litigation, the Court's standard If, then, the petitioner has not power to condemn all may foment it. In these cases, despite the fact that the the land described in the petition, can these proceed- condemnor was authorized and sought to condemn only ings be maintained for so much as is within the hun- a natural gas pipeline, all of the final offers provided dred-feet strip? A single consideration shows that the that the condemnor would receive the right to transport proceedings must stand or fall in toto. Before apply- “oil, petroleum products, or any other liquids, gases or ing to the justice for commissioners, the company substances which can be transported through a must have been unable to agree with the owner for the pipeline.” It is not difficult to imagine a scenario in purchase of the land required. The petition avers that which a landowner would have accepted an offer for a the company could not agree with the owners as to natural gas pipeline but would not consent to a pipeline the price of all the lands demanded; but it by no carrying some other substance (say, for example, radio- means follows that a bargain could not have been active material—a practice that is not unheard of). See, made for the sale of the hundred-feet strip. The own- e.g., Tribe Opposes Utah Pipeline for Uranium Tailings ers are entitled to have an opportunity for such a con- Slurry, Reno Gazette–Journal, Apr. 1, 2002 (detailing tract presented before their land can be taken by con- the Utes' opposition to construction of a pipeline to demnation. Hence the entire proceeding is illegal. carry radioactive uranium tailings).

State v. The Hudson Terminal Ry. Co., 46 N.J.L. The Court contends that I “provide[ ] no authority” 289, 294 (N.J.1884); see also *195Prairie View Tel. Co. for “such a broad construction” and suggests preempt- v. Cherry County, 179 Neb. 382, 138 N.W.2d 468, 470 ively (though the issue is not before us) that the lan- (Neb.1965) (holding that county did not make good guage would in fact be construed more narrowly. But faith attempt to agree because the landowners “were the condemnors' words could hardly be clearer; it is dif- never offered a definite proposal as to the exact right- ficult to imagine language broader than “ any other li- of-way to be acquired, and consequently were never in a quids, gases or substances which can be transported position to make an absolute acceptance thereof”). through a pipeline. ” (Emphasis added.). Moreover, I disagree that, because a natural gas pipeline was in- The Court today concludes that the condemnors sat- cluded within the offer for a pipeline to transport any isfied the unable-to-agree requirement, pointing to “the substance, the condemnors have satisfied the statutory fact that none of the landowners accepted any offer.” requirements. One court of appeals has rejected this But it is improper to equate rejection of an offer that “greater includes the lesser theory”: comprehends rights greater than those sought to be con- demned with refusal to sell only those property rights [I]f this were the law, it would allow the condemnor that could be or were sought to be condemned. Indeed, to make an offer on a 500–acre tract of land that had the Court pays little heed to the Legislature's require- been in the landowner's family for five generations, ment that the parties be unable to agree on the amount that contained the home of the landowner, numerous of damages, holding that “[t]he condemnors have estab- improvements made by the landowner, and other

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properties unconnected with the condemnation when condemnors to produce “evidence of the value the area sought to be condemned involved only a of the three matters about which they now small strip in the corner of the property. The condem- complain or evidence that the owners would nor could then, under that theory, say that the negoti- have accepted the offers if those matters had ated offer required under the statute had been made. been omitted from the offers.” 141 S.W.3d at Such an offer would in no way have any connection 189. with the property to be condemned, and certainly the Legislature could not have intended for such an offer, I disagree with the proposition that “inclusion of in- even though the greater included the lesser, to be con- tangible property rights” makes such a requirement im- sidered a good faith negotiation in an attempt to pur- practicable. 141 S.W.3d 191. To begin with, the con- chase the property to be condemned. demnor controls its pleading and is uniquely suited to include the same items it sought pre-suit. In addition, *196 Eminent domain proceeding [sic] can be simpli- the Court's statement that a condemnor “might not” be fied by simply following the statute and the legislat- able to compel a landowner to warrant title implies that ive intent by making an offer only for the property to the opposite “might” be true. I simply do not see how a be condemned. condemning authority could ever force the landowner “to warrant and defend title to the easement.” Defense Dernehl, 71 S.W.3d at 861. of title, a valuable commodity in itself, was intermixed with the physical property interest in the condemnors' I agree with the Dernehl court. I would hold that, offers. For that reason, the landowners were never given under the statute, the condemnors must make a single a pre-suit standalone offer on damages for property the pre-suit offer encompassing only those property rights condemnor ultimately sought to condemn. they will seek to acquire through condemnation. This requirement is neither burdensome nor complex. It com- II ports with the statutory mandate that condemnors Disposition demonstrate inability-to-agree and with our obligation Given my approach in these cases, it is fair to ask to construe the statute in favor of the landowner and why I concur rather than dissent. Today, the Court cor- FN2 against the condemnor. Burch v. City of San Anto- rectly observes that nothing in the statute makes com- nio, 518 S.W.2d 540, 545 (Tex.1975). Absent this min- pliance a jurisdictional predicate to suit, and the Legis- imal showing, the condemnors cannot show at the time lature has not imposed a specific penalty when condem- the condemnation petition is filed that the parties are nors do not make separate offers for only those rights unable to agree on the amount of damages or that fur- they will seek to condemn. Instead, the Court concludes ther negotiations would be futile. Moreover, this ap- that abatement is an appropriate remedy if a condemnor proach provides a bright-line rule that gives landowners has not satisfied the unable-to-agree requirement prior a chance to assess the value of rights the condemnor is to filing suit. In the cases before us, however, remand- entitled to condemn. Of course, condemnors would not ing the cases so that they could be abated until the un- be precluded from negotiating for additional rights. If able-to-agree requirement is satisfied would be futile. these additional rights were combined with the rights to At this stage of the proceedings, it is clear that the be condemned in a single offer for a lump sum payment, parties are unable to agree on damages for the property however, the condemnors would not be in compliance sought to be condemned. It would be pointless to inval- with the statute because they could not demonstrate, at idate the condemnations on technical *197 grounds and the time the petition is filed, an inability to agree on the remand these cases for abatement so that the condem- amount of damages. nors could prove an inability to agree on damages.

FN2. In fact, the Court seems to apply a con- Examining the condemnation procedure may clarify trary presumption, placing the burden on the matters. The condemnor must file a petition, “stat[ing]

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that the entity and the property owner are unable to the condemnors in these consolidated cases did not es- agree on the damages.” Tex. Prop.Code 21.012. If a tablish an inability to agree before they filed suit. It is condemnor alleges an “inability to agree” without ever clear, however, that the landowners and condemnors having made an offer, the condemnor and its attorney came to a point of disagreement before true litigation could face sanctions. See Tex.R. Civ. P. 13. After the commenced because the condemnors “accepted,” and petition is filed, the judge appoints three disinterested the landowners rejected, the commissioners' awards. commissioners to hear the case. Tex. Prop.Code § Under these circumstances, the statutory requirement 21.014(a). Notice of the hearing is sent to the landown- was met, albeit at a date later than that contemplated by er, and the hearing is set for “the earliest practical the Legislature. I reiterate, however, that the simplest time.” Id. § 21.015–16. If the landowner wishes to ap- and cheapest solution to this problem is for the condem- pear and present evidence, he or she may do so. If that nor to comply with the statute and make an offer for the occurs, it is clear that the parties are unable to agree on property it seeks to condemn, before filing a condemna- damages for the property sought to be condemned. Al- tion petition. ternatively, the landowner can do nothing, and the com- missioners will hear the case and enter their findings. At Accordingly, I join parts I through III of the Court's that point, if the landowner agrees with the commission- opinion and the Court's judgments. ers' decision, he or she can accept the award, and the Tex.,2004. landowner is appropriately compensated for the taking. Hubenak v. San Jacinto Gas Transmission Co. If the landowner or the condemnor is dissatisfied, either 141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. can file objections. Id. § 21.018. At that time, the P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. landowner may assert that the condemnor has not en- 768 gaged in negotiations designed to obtain an agreement as to damages. In that event, the trial court must abate END OF DOCUMENT the case and require the condemnor to make an offer for the property it seeks to condemn.

In these cases, even though the condemnors' presuit offers were improper, it was apparent that the parties were unable to agree on damages for the property to be condemned after the commissioners entered their award. The landowners objected and the condemnors did not. Remanding the case at this stage, so that the trial court can abate the proceedings until a proper offer is made, would serve no purpose. See, e.g., Hill v. State, 90 S.W.3d 308, 310 (Tex.Crim.App.2002) (declining to or- der abatement when doing so would be “a futile act”); Moore Landry L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 542 (Tex.App.—Houston [1st Dist.] 2003, no pet.). Accordingly, under the unique circum- stances of these cases, and in light of the rule an- nounced by the Court today, the Court's disposition of these cases is proper.

Conclusion I would hold, contrary to the Court's opinion, that

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120 Deeds 120III Construction and Operation Court of Civil Appeals of Texas, Beaumont. 120III(A) General Rules of Construction KLEIN ET AL. 120k93 k. Intention of parties. Most Cited v. Cases HUMBLE OIL & REFINING CO. Cardinal rule for construction of deeds is to as- certain intention of parties as expressed therein. No. 2333. Jan. 6, 1934. [3] Deeds 120 93 Rehearing Denied Feb. 7, 1934. 120 Deeds Appeal from District Court, Guadalupe County; 120III Construction and Operation Lester Holt, Judge. 120III(A) General Rules of Construction 120k93 k. Intention of parties. Most Cited Suit by F. F. Klein and others against the Cases Humble Oil & Refining Company, which im- All provisions of deed must be considered in pleaded D. D. Baker and others as cross-de- ascertaining intention of parties. fendants. From the judgment, plaintiffs and cross- defendant Baker appeal. [4] Deeds 120 90

Affirmed in part and reversed and rendered in 120 Deeds part. 120III Construction and Operation 120III(A) General Rules of Construction West Headnotes 120k90 k. Application to deeds in general. [1] Mines and Minerals 260 55(5) Most Cited Cases In case of doubt language of deed should be 260 Mines and Minerals construed against grantor and in favor of grantee. 260II Title, Conveyances, and Contracts 260II(B) Conveyances in General [5] Deeds 120 138 260k55 Grants and Reservations of Min- 120 Deeds erals and Mining Rights 120III Construction and Operation 260k55(5) k. Kind, quantity, and loca- 120III(D) Exceptions tion of minerals granted or reserved. Most Cited 120k138 k. Exceptions and reservations Cases distinguished. Most Cited Cases Warranty deed excepting from conveyance 1/8 Primary distinction between “reservation” and th of mineral rights, in part of land conveyed, and “exception” in deed is that reservation must always identifying property conveyed with that described be in favor of and for benefit of grantor, whereas in prior deed in chain of title, held to except from exception is mere exclusion from grant, of some in- conveyance only 1/8 th of minerals reserved in pri- terest which may be vested in grantor or outstand- or deed, and not to reserve an additional 1/8 th, ing in another. where it was not recited that exception was for grantors' benefit. Vernon's Ann.Civ.St. art. 1291. [6] Deeds 120 112(1)

[2] Deeds 120 93 120 Deeds

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120III Construction and Operation 260II Title, Conveyances, and Contracts 120III(B) Property Conveyed 260II(C) Leases, Licenses, and Contracts 120k112 References to Maps, Plats, Other 260II(C)3 Construction and Operation of Instruments, or Records Oil and Gas Leases 120k112(1) k. Reference to other in- 260k79 Rent or Royalties struments or records in general. Most Cited Cases 260k79.3 k. Amount and time of Deed identifying property conveyed as the payment. Most Cited Cases same conveyed by prior deed in chain of title incor- (Formerly 260k79(1)) porated prior deed to extent necessary to clarify Provision in mineral lease reserving 1/8 th roy- provisions of subsequent deed, and prior deed was alty to lessor held to reserve such portion of miner- admissible in evidence for that purpose. als in addition of 1/8 th reserved in deeds to lessor and his predecessor, which were incorporated in [7] Mines and Minerals 260 55(8) lease by reference.

260 Mines and Minerals [10] Mines and Minerals 260 73 260II Title, Conveyances, and Contracts 260II(B) Conveyances in General 260 Mines and Minerals 260k55 Grants and Reservations of Min- 260II Title, Conveyances, and Contracts erals and Mining Rights 260II(C) Leases, Licenses, and Contracts 260k55(8) k. Remedies. Most Cited 260II(C)3 Construction and Operation of Cases Oil and Gas Leases In suit by grantor against assignee of mineral 260k73 k. In general; general rules of lease given by grantee, to recover value of mineral construction. Most Cited Cases right excepted by deed, defendant could introduce Reference in mineral lease to deed as convey- prior deed in chain of title to show mineral right ex- ing land leased, incorporates deed into lease, and cepted was outstanding in another. into description of property conveyed, and puts lessee and his assignee on notice of extent thereof. [8] Mines and Minerals 260 73 *912 Lewright & Lewright and Gaines, Gaines & 260 Mines and Minerals Roberts, all of San Antonio, Phillips & Phillips, of 260II Title, Conveyances, and Contracts Dallas, and J. B. Dibrell, H. M. Wurzbach, and P. 260II(C) Leases, Licenses, and Contracts E. Campbell, all of Seguin, for appellants. 260II(C)3 Construction and Operation of Oil and Gas Leases J. Q. Weatherly and K. W. Gilmore, both of Hous- 260k73 k. In general; general rules of ton, and Wirtz & Weinert, of Seguin, for appellee. construction. Most Cited Cases Oil lease describing land by reference to record O'QUINN, Justice. of deed to lessor held to charge lessee and lessee's May 29, 1928, Robert Stein and wife were the assignee with notice of provisions in deed referred owners of a certain 60 acres of land, a part of the to, and of earlier deed which it incorporated by ref- Jacob Darst survey, in Guadalupe county, Tex. On erence, whereby lessor and his grantor received that date they conveyed said 60 acres of land to F. only 7/8ths interest in minerals. F. Klein by warranty deed. The deed, after describ- [9] Mines and Minerals 260 79.3 ing the 60 acres by metes and bounds, contained the following special provision: 260 Mines and Minerals “Grantors herein, however, reserve for them-

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selves, their heirs and assigns, one-eighth (1/8) of which will hereinafter be referred to as Humble all mineral rights in and under Ten (10) acres of Company. land, running north and south, on the east end of the 60 acres herein conveyed, and it is understood and Thereafter, Stein by deeds conveyed to Baker agreed that if no production of oil is had on said 13/16ths of the 1/8th of the minerals reserved in the Ten (10) acres within a period of Twenty (20) deed from himself to Klein. Stein also sold small years, this reservation shall terminate and become interests in said 1/8th to others, and Baker made a null and void, and it is further understood that number of conveyances. grantors herein are not to participate in any oil lease The Humble Company took possession of said or rental bonuses that may be paid on any lease on 60 acres of land and made developments *913 on said above described land, and hereby waive any the east 10 acres, discovering oil in paying quantit- rights they may have or be entitled to in any future ies. After oil was discovered, Klein claiming to oil or gas lease.” have reserved for himself 1/8th of the mineral July 16, 1928, F. F. Klein and wife, by general rights in said east 10 acres, executed conveyances warranty deed, conveyed the said 60 acres of land to the other plaintiffs who join him in the suit. to D. D. Baker, describing same by metes and The Humble Company refused to recognize bounds, as in the deed from Stein and wife to Klein, Klein's claim to any interest in the mineral rights in which deed contained the following special provi- said 10 acres, and Klein and the other parties sion: plaintiff, to whom he had executed conveyances of “There is however excepted from this convey- portions of the interest claimed by him, brought this ance 1/8 of all mineral rights in and under Ten suit against the Humble Company to recover the acres of land running north and south on the east value of 1/8th of all the oil said company had pro- end of said 60 acres, and it is understood that if no duced from the said 10 acres, and 1/8th of the value production of oil is had on said 10 acres within a of all oil thereafter produced therefrom. period of Twenty years from May 29, 1928, then The Humble Company answered by plea of not this reservation shall lapse. Also understood that guilty, general denial, and specially denied that the the owner of said rights is not to participate in any plaintiffs had any interest in the mineral rights in oil lease or rental bonuses that may be paid for any the east 10 acres of said 60-acre tract of land. By lease, and have no interest in any future oil and gas bill of interpleader said company brought into the lease.” suit as cross-defendants, D. D. Baker, Robert Stein, “The property herein conveyed is the same and all the record owners of any interest in the min- conveyed to us by Robert Stein and wife by deed erals in the entire 60 acres of land, alleging them to dated May 29, 1928, and recorded in Guadalupe be necessary parties, and asked that all their re- County, Deed Record Book 97, p. 398.” spective rights be determined by the suit. Baker, Stein, and the other defendants impleaded by the July 24, 1928, D. D. Baker executed and de- Humble Company filed appropriate answers. Sup- livered to H. H. Weinert an oil and gas lease cover- plemental pleadings were filed by all parties. ing the 60 acres of land describing same by metes and bounds as described in the deed from Stein to The case was tried to the court without a jury, Klein, and Klein to Baker, said lease being on the and judgment rendered denying any recovery to regular 88 form, and containing a general warranty plaintiffs F. F. Klein et al., and decreeing to the clause. February 6, 1929, Weinert assigned this Humble Company all of the leasehold rights, title, lease to the Humble Oil & Refining Company, and interest in and to all of the minerals in the en-

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tire 60 acres of land, subject only to the payment of and by these presents do Grant, Sell and Convey a 1/8th royalty to the parties in the various interests unto the said D. D. Baker of the County of Guada- set out in the judgment. The judgment awarded to lupe State of Texas all that certain tract and parcel Baker a 2/64ths interest in the minerals in the 10 of land situated in Guadalupe County, Texas, con- acres in question, and denied him any recovery by taining 60 acres of land, out of the Jacob Darst 24 his cross-action against the Humble Company. Labor Survey, particularly described as beginning From this judgment, the plaintiffs H. H. Klein, Roy at the S. E. corner of 400 acres conveyed to Hous- Campbell, Jake K. Harmon, C. L. Witherspoon, and ton Wilson by Henry Campbell, a stone set in the C. M. Gaines, and the cross-defendant D. D. Baker ground from which a hickory 12" in dia. brs S. 29 have appealed. 1/2 w. 13-1/3 vrs. Thence with the East line of said 400 acres, N. 5 deg. E. 476 varas to stake from It will be observed from the judgment that the which a P. O. 12" dia. brs. S. 11 w 11 vrs; Thence ownership of the minerals in the whole 60-acre N. 85 W. on a line parallel with the south line of tract was involved in this suit, and was determined said 400 acres, 711 1/2 vrs. to stone in ground for by the judgment. However, there is no controversy corner; Thence S. 5 deg W. 476 varas to stone in S. in regard to the findings and holdings of the trial line of said 400 acres; Thence S. 85 E. 711 1/2 vs. court with respect to any of the acreage except the to the place of beginning, containing 60 acres. east 10 acres of the tract; so the judgment as it relates to the remaining 50 acres is of no import- “There is however excepted from this convey- ance on this appeal. The whole contest here is as to ance 1/8th of all mineral rights in and under ten the ownership of the mineral rights in the east 10 acres of land running north and south on the east acres of said 60-acre tract. end of said 60 acres, and it is understood that if no production of oil is had on said 10 acres within a That Stein and wife reserved to themselves and period of twenty years from May 29, 1928, then were the owners of 1/8th of the minerals in the east this reservation shall lapse. Also understood that 10 acres of the 60-acre tract, is admitted by all the the owner of said rights is not to participate in any other parties. oil lease or rental bonuses that may be paid for any lease, and have no interest in any future oil and gas Klein insists that in his deed to Baker he excep- lease. ted for himself 1/8th of all the minerals in the east 10 acres of land described in the conveyance, and “The property herein conveyed is the same that the deed and said exception are without ambi- conveyed to us by Robt. Stein and wife by *914 guity, and that judgment should have been for him deed dated May 29th, 1928, and recorded in Guada- for said 1/8th of the minerals in said 10 acres. lupe County deed record book 97 p. 398.

The deed from Klein and wife to Baker reads: “Taxes for the year 1928 are to be paid by grantors hereof. “The State of Texas, County of Guadalupe “To have and to hold the above described “Know all men by these presents: That we, F. premises, together with all and singular the rights F. Klein and wife Mrs. Della Klein of the County of and appurtenances thereto in anywise belonging un- Guadalupe State of Texas, for and in consideration to the said D. D. Baker, and his heirs and assigns of the sum of Ten Dollars and other valuable con- forever and we do hereby bind ourselves and our siderations to us in hand paid by D. D. Baker in heirs, executors and administrators, to Warrant and cash or its equivalent, the receipt of which is hereby Forever Defend, all and singular the said premises acknowledged, have Granted, Sold and Conveyed, unto the said D. D. Baker and his heirs and assigns,

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against every person whomsoever lawfully claim- as expressed in the deed. 14 Tex. Jur. 910, § 132, ing, or to claim the same, or any part thereof. and authorities cited. In ascertaining this intention all the provisions of the deed are to be considered. “Witness our hands at Seguin, Texas, this 16th The intention is not to be gotten from an isolated day of July, 1928. clause or paragraph, but must be gathered from a fair construction of the entire instrument. Each “F. F. Klein clause or paragraph must be construed with refer- “Della Klein.” ence to every other paragraph, and the effect of one paragraph upon the other determined. 14 Tex. Jur., Appellants say that by this deed Klein and wife § 140, p. 919, and cases cited. In case of doubt the reserved unto themselves 1/8th of the minerals in language of the deed, being the language of the the east 10 acres, and this without regard to what grantor, is to be construed against the grantor and in interest they may have owned at the time the deed favor of the grantee. 14 Tex. Jur. p. 916, § 138, and was executed or what interest may have been cases cited. And a deed will be construed as passing owned by others. The effect of this contention is a fee-simple estate, if a less estate be not expressly that as Stein and wife reserved 1/8th, and Klein re- limited by express words. Article 1291, R. S. 1925; served 1/8th, the deed from Klein to Baker con- 14 Tex. Jur. § 151, p. 930; also section 155, p. 933. veyed only 6/8ths of the minerals in said 10 acres. In the Klein deed to Baker, the granting clause The Humble Company denies this contention described the property conveyed as “all that certain and says that the deed from Klein and wife to tract and parcel of land situated in Guadalupe Baker, construed alone and without reference to County, Texas, containing 60-acres of land, ” and any other deed, upon its face bassed to Baker a fee- then described same by metes and bounds. Con- simple estate in the 60-acre tract, less 1/8th of the sidered alone and without reference to the excep- minerals in the east 10 acres. That the exception in tion, it cannot be said that the granting clause pur- the deed merely excluded from the grant and from ports to convey less than a fee-simple title to the Klein's warranty 1/8th of the mineral rights in the 60-acre tract. The exception clause recites: east 10 acres. In other words, that the deed from Klein and wife to Baker conveyed to Baker all the “There is however excepted from this convey- interest they had in the property, and that the excep- ance 1/8th of all mineral rights in and under Ten tion was to exclude from the conveyance only the acres of land running north and south on the east 1/8th of the minerals reserved by Stein and wife in end of said 60 acres.” their deed to Klein, and that Klein's exception was The words “this conveyance” can refer only to to protect only his warranty as against the Stein the granting clause for that is the only clause con- 1/8th reservation. veying or purporting to convey anything. Since the [1][2][3][4] The trial court sustained this con- granting clause purports to convey “all that certain tention, and we think this holding is correct. The tract of land,” the described 60 acres, it follows that Klein deed, upon its face, we think, unquestionably the exception is to be deducted from the whole, and passed title to Baker to all the minerals in the west the exception being 1/8th of the minerals in the east 50 acres of the land described, and 7/8ths of the 10 acres, deducting this the deed passed a fee- minerals in the east 10 acres. The correctness of simple estate in all of the 60 acres except 1/8th of this holding depends upon the construction of the the minerals in the east 10 acres. The deed being a Klein deed. The cardinal rule for the construction general warranty deed, it follows that the warranty of deeds is to ascertain the intention of the parties covered all of the 60 acres except the 1/8th of the minerals in the east 10 acres, as to which there was

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no warranty. This construction, we think, must res- In the case of Arnett v. Elkhorn Coal Corp., ult from a consideration of the express terms of the supra, Lewis Hoskins and wife executed in favor of deed, as well as from the application of the stat- Arnett a general warranty deed to a tract of land, utory rule that a fee-simple estate passes by a deed one paragraph of the deed providing: if a less estate be not limited by express words. “It is understood that there is an oil and gas *915 [5] Moreover, Klein's deed does not recite lease on this land, and the same is excepted from that the exception of 1/8th of the minerals in the this conveyance.” east 10 acres is for his benefit. It does not recite that there is reserved unto himself 1/8th of the minerals In discussing the effect of this exception, the in the east 10 acres. The deed does not say for court said: whose benefit the exception is made. He merely “It will be observed that Hoskins does not in- says that there “is excepted” from the conveyance dicate by the language of the deed that he held any and warranty the 1/8th interest. While the words interest whatever in the lease, as would be inferred, “exception” and “reservation” are often used indis- if it was a reservation instead of an exception. An criminately, each has its own separate meaning, and exception in a deed is intended to describe some in the construction of deeds containing such terms part of the thing granted, which the grantor retains courts will not look upon the terms as synonymous, title to and does not convey, or something to which or attribute to the one the meaning of the other, un- another holds title already and which is not inten- less from the face of the instrument it is apparent ded to be conveyed, and the exception may be for that by the use of one word the other was intended. the benefit of the grantor himself, or it may be for 14 Tex. Jur. 958-960; Donnell v. Otts (Tex. Civ. the benefit of another who already has acquired App.) 230 S. W. 864. The primary distinction title to the portion of the thing, which is affected by between a reservation and exception is that a reser- the exception. The exception may be a description vation must always be in favor of and for the bene- of a portion of the thing granted, which previously fit of the grantor, whereas, an exception is a mere to the grant had been conveyed to another, and not exclusion from the grant, in favor of the grantor necessarily so conveyed by the grantor, but by a only to the extent that such interest as is excepted prior grantor. * * * (Italics ours.) may then be vested in the grantor, and not out- standing in another. Allen v. Henson, 186 Ky. 201, “The exception, in the deed from Hoskins to 217 S. W. 120; Arnett v. Elkhorn Coal Corp., 191 the Northern Coal & Coke Company, of a lease re- Ky. 706, 231 S. W. 219, 220; Reynolds v. McMan lating to oil and gas upon the property, being an ex- Oil & Gas Co. (Tex. Com. App.) 11 S.W.(2d) 778. ception of the rights under the lease of the lessor and lessee, without anything indicating that In Allen v. Henson, supra, the court said: Hoskins had any interest therein, and there being no “Generally a ‘reservation’ in a deed is a clause way of determining from the deed or the pleading whereby the grantor reserves to himself some new whether the exception was made because Hoskins thing, either issuing out of or incident to the thing desired to retain the benefit of a lessor in the lease granted, while an ‘exception’ in a deed is a clause for himself, or to protect himself against the con- exempting from the operation of the deed and re- sequences of his conveyance of the oils and gases, taining in the grantor the title to some part of the with a warranty of title, to the vendee, because an- thing granted, or else excepting from the operation other was then the owner of the benefits, which of the deed some part of the thing granted the title might accrue to a lessor of the lease, and the peti- of which is at the time in another.” (Italics ours.) tion failing to assert any right or interest in the lease, on the part of the plaintiff, it cannot be as-

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sumed that he had any interest therein. * * *” 60 acres herein conveyed, and it is understood and agreed that if no production of oil is had on said 10 We agree with appellants Klein et al., that the acres within a period of Twenty years, this reserva- deed from Klein and wife to Baker and its excep- tion shall terminate and become null and void, and tion, is clear and unambiguous, hence our holding it is further understood that grantors herein are not above. We think that said instrument plainly shows to participate in any oil lease or rental bonuses that that it was not the intention of Klein to reserve or may be paid on any lease on said above described except for himself an interest of 1/8th of the miner- land, and hereby waive any rights they may have or al rights in the east 10 acres of the land. The deed be entitled to in any future oil and gas lease.” clearly purports to convey the whole 60 acres ex- (Italics ours.) cepting only 1/8th of the minerals in the east 10 acres. The exception does not say that the 1/8th was The Klein exception: for himself, or for any one--just a general exception from the “conveyance.” Unquestionably the “There is however excepted from this convey- “conveyance” referred to was the deed Klein was ance 1/8th of all mineral rights in and under ten then executing to Baker. This deed conveyed “all” acres of land running north and south on the east of the 60 acres except 1/8th of the minerals in the end of said 60 acres, and it is understood that if no east 10 acres. The 60-acre tract was described by production of oil is had on said 10 acres within a metes and bounds, and this was followed, after the period of Twenty years from May 29, 1928, then exception, by the statement that “the property this reservation shall lapse. Also understood that herein conveyed is the same property conveyed to the owner of said rights is not to participate in any us by Robt. Stein and wife by deed dated May 29. oil lease or rental bonuses that may be paid for any 1928, and recorded in Guadalupe County deed re- lease, and have no interest in any future oil and gas cords, book 97, p. 398.” The property conveyed lease.” (Italics ours.) *916 by Stein and wife to Klein was all of the 60 The Stein reservation was 1/8th for themselves. acres, less 1/8th of the minerals in the east 10 acres The Klein exception was not in favor of any named of the 60-acre tract. The deed from Klein and wife one--merely that 1/8th of the minerals in the east 10 to Baker conveyed “all” of the 60 acres, less 1/8th acres was excepted from “this conveyance,” mean- of the minerals in the east 10 acres of the 60-acre ing Klein's deed to Baker. But as further showing tract--the identical property conveyed by Stein to that the exception in Klein's deed was to protect Klein, and so stated in the Klein deed to Baker. Stein's reservation and Klein's warranty, the excep- Nothing was said in the Klein deed to Baker tion says that it was “understood that if no oil is had about the 1/8th that Stein had reserved, but we on said 10 acres within a period of Twenty years think other statements in the Klein exception show from May 29, 1928, then this reservation shall that Klein was by his exception protecting and in- lapse.” Klein's deed to Baker was dated July 16, tended to protect only the Stein 1/8th. Compare the 1928, but Stein's deed to Klein was dated May 29, provisions of the Stein reservation and the Klein 1928. The twenty years in which oil must be de- exception. veloped on the 10 acres was dated from the date of the Stein deed to Klein, not from the date of his, The Stein reservation: Klein's, deed to Baker.

“Grantors herein however, reserve for them- The Stein deed to Klein recited that it was also selves, their heirs and assigns, one-eighth (1/8) of understood that “grantors herein” (the Steins) were all mineral rights in and under Ten (10) acres of not to participate in any oil lease or rental bonuses land, running north and south, on the east end of the that might be paid for any lease on the land. Klein's

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exception recites that it was understood that “ the very similar to the instant case both as to the facts owner of said rights” was not to participate in any and questions of law involved. Appellee says that it oil lease or rental bonuses that might be paid for is not authority for the holding for which it is cited, any lease. Is it not reasonable to say that the excep- because, it says, it has been overruled by the court tion of 1/8th of the minerals in the east 10 acres, that rendered it (the Supreme Court of West Virgin- and the reference to May 29, 1928, the date of the ia), in the case of Kilcoyne v. Southern Oil Com- Stein deed to Klein, and the expression “the owner pany, 61 W. Va. 538, 56 S. E. 888. It is a sufficient of said rights ” in the Klein deed were intended to answer to say that the principles it announced are and had reference to the Stein reservation and for the law in Texas. Long after the Kilcoyne decision, the protection of same, and of Klein's warranty to in discussing the very question involved, the Galve- Baker? The wording of reservations and exceptions ston Court of Civil Appeals, in the case of Hooks v. in conveyances is not difficult. If Klein was in fact Neill, 21 S.W.(2d) 532, cited and quoted from the excepting 1/8th of the minerals in the said 10 acres, Harris v. Cobb Case, approving its holding, and the why did he now say that the exception was for him- Supreme Court approved that holding by refusing a self? If the Kleins were waiving the right to parti- writ of error. Furthermore, we think that, if any cipate in any oil lease or bonuses paid for a lease on possible question can be said to exist as to the true the grant, why not use the words “grantors herein,” construction to be given to the exception provision, as did the Steins, instead of referring to the “owner as tested by the language of the exception itself, it of said rights” who was in no way designated? is set at rest by the very next clause following the exception. It identifies the property conveyed by That the exception was for the benefit of the the deed as “the same conveyed to us (Klein and grantors, Klein and wife, and was to create an inde- wife) by Robert Stein and wife by deed dated May pendent 1/8th interest in the minerals in the east 10 29, 1928, and recorded in Guadalupe County, deed acres to which they retained the title, is bound, at record, book 97, page 398.” The mentioned deed best, to rest only in implication. This must be true, with reference to the record of it, under which the since the provision nowhere in terms purports to Kleins acquired their title and which identified as say that the “exception” was for them or that the in- the property conveyed thereby to them, the land and terest excepted was to be theirs. There is nothing in every interest in the land, save and except only the the language of the exception itself which requires 1/8th mineral estate in the east 10 acres reserved by that construction. Under the language of the provi- the Steins for themselves. This clause cannot be sion it is, at most, only a possible construction. And written out of the deed. It is an essential part of it, under the language itself it is just as possible to as much so as the exception provision itself. It iden- fairly construe the “exception” as referring to the tifies just what the Kleins were conveying to Baker. Stein interest, which was not being conveyed. With It may and should be looked to in ascertaining the this being true, if there is doubt as to the making of intention of the instrument. the exception, this doubt must be resolved against the grantors, and in favor of the grantee Baker, that Under the purchase from Stein the Kleins the exception was but to preserve and protect the owned the surface rights in the whole of the 60-acre Stein reservation and Klein's warranty. Baker v. tract, and all of the mineral estate in the west 50 McDowell, 3 Watts & S. (Pa.) 358; Harris v. Cobb, acres, and 7/8ths of the mineral estate in the east 10 49 W. Va. 350, 38 S. E. 559; *917Hill v. Roberts acres. They had the right in their conveyance to (Tex. Civ. App.) 284 S. W. 246; Hooks v. Neill Baker to reserve for themselves any part of their es- (Tex. Civ. App.) 21 S.W.(2d) 532. tate in the east 10 acres, or even the whole of it. The fact that the Kleins had this right emphasizes The case of Harris v. Cobb, cited supra, was the failure by any apt language in their deed to

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Baker to express or indicate its exercise. If their title in another than appellants to the 1/8th of the purpose had been to reserve a 1/8th of the minerals minerals in the east 10 acres excepted in the Klein that they owned in the east 10 acres for themselves, deed. we think they would have made such intent an ex- press feature of the reservation provision. The deed, [8][9][10] We come now to the contest we think, in apt words, excepted from its effect between appellee and appellant Baker. As before only the 1/8th reserved by Stein. stated appellant Baker executed to H. H. Weinert an oil and gas lease on the 60 acres of land in question Without discussing them, we will say that we which Weinert assigned to the Humble Company. have carefully examined each of the cases cited to Tersely stated these are the contentions: It is con- us by appellants as sustaining their contention that tended by Baker that in said lease he reserved for Klein reserved for himself 1/8th of all the minerals himself a 1/8th interest in all the minerals that he in the east 10 acres in controversy, and that we do owned in the entire 60 acres. He owned all the min- not think any of them have application to the facts erals in the west 50 acres, and 7/8ths of the miner- of the instant case. The facts in the cases cited by als in the east 10 acres. So, he *918 says, he re- appellants materially differ from the facts in the in- served for himself 1/8th of the minerals in the west stant case in that in each of the cited cases the re- 50 acres, and 1/8th of 7/8ths, or 7/64ths, of the min- servation was expressly in favor of the grantors, erals in the east 10 acres. This appellee denies and and there was no general warranty of title. The ex- insists that under the terms of the lease a royalty of ception here was not in favor of the grantors, and only 1/8th was to be paid as to the east 10 acres, the deed contained a general warranty. and that 1/8th was reserved by Stein. In other words that it was liable to pay only 1/8th royalty in the [6][7] We overrule appellants' contention that minerals in the east 10 acres--that neither Klein nor the deed from Stein and wife to Klein was not ad- Baker had reserved for themselves any portion of missible in evidence, and that its admittance was the minerals in the said 10 acres. reversible error. We think that what we have said relative to the exception in the Klein deed to Baker Baker's lease to Weinert, assigned by Weinert disposes of this contention, but if it can be said that to the Humble Company, was on the regular 88 the meaning of said exception is doubtful, then the form. Among its other provisions were: Stein deed was admissible because it was referred to in the Klein deed and thus became a part thereof “1. Lessor, in consideration of the sum of to the extent necessary to clarify the provisions of Ninety and no one hundred dollars ($90.00) in the Klein deed. That one instrument may by refer- hand, of the royalties herein provided and the ence incorporate another, and that the Stein deed agreements of lessee herein contained, hereby was in such manner incorporated in the Klein deed grants, leases and lets exclusively unto lessee for to the extent necessary to clarify the latter, we think the purpose of prospecting and drilling for and pro- beyond cavil. 8 R. C. L. 1078 et seq; 18 C. J. 281, ducing oil and gas, laying pipelines, building tanks, 282; Devlin on Real Estate (3d Ed.) vol. 2, § 1020, storing oil and building power stations, telephone p. 1952 et seq. We think, too, that the Stein deed lines and other structures thereon, to produce, save, was admissible because the pleadings and the evid- take care of, treat and transport said products, the ence show that Stein, the grantor therein, was the following described land in Guadalupe County, common source of title and appellee was entitled to State of Texas, to-wit: all of a tract of 60 acres out introduce such deed for the purpose of connecting of the Jacob Darst 24 Labor Survey, beginning itself with the common source of title, and for the (then follows the field notes). Excepting 8/10ths of purpose of showing that there was an outstanding an acre conveyed by Frank Wilson and wife to Guadalupe County by a deed of record in deed

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book 48, pages 114-5, this being the same land con- 1/8th of 7/8ths, or 7/64ths of the minerals in the veyed to me by F. F. Klein by a deed of record in east 10 acres. Baker's lease to Weinert described deed book 98, page 401-2.” the land covered by the lease as 60 acres, less 8/10ths of an acre which had been conveyed by a “3. The royalties reserved by lessor, and which former owner, and recited that the land covered by shall be paid by lessee, are (a) on oil one-eighth of the lease was the same land conveyed to Baker by that produced and saved from the land, the same to Klein by deed recorded in the deed records of be delivered at the wells or to the credit of lessor in Guadalupe county, Tex., Book 98, pages 401 and the pipeline to which the wells may be connected, 402. The rule is well settled that this reference to or, at the option of lessee, from time to time, the the Klein deed incorporated said deed into the lease market price at the wells of such one-eighth on the and into the description of the property conveyed, day it is run to the pipeline or storage tanks, lessor's and put Weinert and his assignee, the Humble interest in either case to bear its proportion of any Company, on notice that the land covered by the expense of treating unmerchantable oil to render it lease was the same Baker had acquired from Klein, merchantable as crude, and (b) on gas produced and only that land. This reference informed them from said land and sold or used off of the land or in just what interest Klein conveyed to Baker. They the manufacture of gasoline, including casinghead accepted the lease with full knowledge, in law, of gas, the market price at the well of one-eighth of all facts disclosed by it and its references, which the gas so sold or used, provided that if and when were a part thereof. lessee shall sell gas at the wells lessor's royalty thereon shall be one-eighth of the amount realized In Wallace v. Hoyt (Tex. Civ. App.) 225 S. W. from such sales.” 425, 429 (writ refused), Judge Key said:

We have underscored or italicized the words in “It is a well-settled rule that one is charged the royalty provision of the lease, supra, showing with knowledge of every fact disclosed by his chain the royalties to have been reserved by Baker for of title, although he may never have read the instru- himself as lessor. In a subsequent paragraph (10) of ments constituting that chain, and never had any ac- the lease, provision is made for payment to the tual knowledge of their contents.” lessor of a royalty on other minerals than oil and gas if they should be found in paying quantities, He further said: “While the primary purpose of Baker, and Baker only, was the lessor. And in terms our registration statute may be to protect innocent as plain as could be expressed, the lease stipulates purchasers for value, it is also intended to protect that the 1/8th royalty payable under it shall be pay- those whose rights are disclosed by the record.” able to Baker, the lessor. *919 In Loomis v. Cobb (Tex. Civ. App.) 159 We have held that Baker acquired from Klein S. W. 305, 307 (writ refused), it is said: all the minerals in the west 50 acres, and 7/8ths of “It is a familiar and thoroughly well-settled the minerals in the east 10 acres of the 60-acre principle of realty law that a purchaser has con- tract. As Baker owned only 7/8ths of the minerals structive notice of every matter connected with or in the east 10 acres, then, as respects said 10 acres, affecting his estate which appears by recital, refer- only that 7/8ths interest could be the subject-matter ence, or otherwise upon the face of any deed which of the oil and gas lease granted to Weinert. We forms an essential link in the chain of instruments think that by the clear terms of the lease set out through which he deraigns his title. The rationale of supra, Baker reserved for himself 1/8th of all the the rule is that any description, recital of fact, or minerals that he owned in the 60 acres of land. That reference to other documents puts the purchaser is 1/8th of the minerals in the west 50 acres, and

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upon inquiry, and he is bound to follow up this in- rendered in his favor, and that his total recovery as quiry, step by step, from one discovery to another relating to said 10 acres should and is adjudged to and from one instrument to another, until the whole be 1/8th of 7/8ths, or 7/64ths of the minerals in the series of title deeds is exhausted and a complete said 10 acres, together with the 2/64ths before men- knowledge of all the matters referred to and affect- tioned, totaling 9/64ths interest in all in said east 10 ing the estate is obtained. Being thus put upon in- acres of land, and it is so ordered. And it appearing quiry, the purchaser is presumed to have prosecuted that there is an agreement in the record that up to it until its final result and with ultimate success.” April 1, 1931, there had been produced and saved (Italics ours.) from the said 10 acres of land, oil to the value of $616,982.79 it is here held and adjudged that Baker Numerous authorities could be cited supporting have judgment for 9/64ths of said sum, or the rule. $86,763.15, and that said Baker have judgment for 9/64ths of the value of all of the oil taken from said We think it should be said that since the deed 10 acres of land since April 1, 1931, and that he be from Stein to Klein reserved for Stein 1/8th of the and is decreed the owner of 9/64ths of all oil, gas, minerals in the east 10 acres, and as the Klein deed and other minerals to be taken from the said 10 to Baker referred to the Stein deed with its record, acres in the future, and it is so ordered. Affirmed in which incorporated it into the Klein deed, and as part and reversed and rendered in part. Baker's lease to Weinert referred to the Klein deed with its record, thus incorporating this deed, which by reference included the Stein deed, into the lease, Tex.Civ.App. 1934. that the Humble Company, which held the lease by Klein v. Humble Oil & Refining Co. assignment from Weinert, should be held to know 67 S.W.2d 911 exactly what estate Baker owned in the land and minerals, and exactly what estate his lease purpor- END OF DOCUMENT ted to and did convey, and that it took the lease with this knowledge, and cannot be heard to assert to the contrary. Polk v. Chaison, 72 Tex. 500, 10 S. W. 581; Caruth v. Grigsby, 57 Tex. 259.

Our holdings above dispose of the decisive questions in the case, and render unnecessary a dis- cussion of the other questions presented.

From what we have said, it follows that that part of the judgment denying a recovery to appel- lants F. F. Klein et al. should be affirmed, and that portion of the judgment awarding appellant Baker judgment for 2/64ths of the oil produced from the east 10 acres of the land in question, being the net interest owned by him which he had acquired out of the Stein 1/8th interest in said 10 acres, should also be affirmed, and that portion of the judgment deny- ing Baker any recovery on his cross-action for the 1/8th interest reserved by him in his lease as relat- ing to the east 10 acres, should be reversed and here

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tion of the right to exclude others from his or her property by granting an easement, but such a relin- Supreme Court of Texas. quishment is limited in nature. MARCUS CABLE ASSOCIATES, L.P. d/b/a Charter Communications, Inc., Petitioner, [2] Easements 141 24 v. Alan and Myrna KROHN, Respondents. 141 Easements 141I Creation, Existence, and Termination No. 01–0291. 141k24 k. Transfer of right. Most Cited Argued Feb. 20, 2002. Cases Delivered Nov. 5, 2002. While certain easements may be assigned or apportioned to a third party, the third party's use Property owners brought action against cable cannot exceed the rights expressly conveyed to the company for trespass and negligence, alleging that original easement holder. company had placed its cable lines over their prop- erty without their knowledge or consent. The 40th [3] Easements 141 42 Judicial District Court, Ellis County, Gene Knize, J., entered summary judgment for cable company. 141 Easements Property owners appealed. The Waco Court of Ap- 141II Extent of Right, Use, and Obstruction peals, 43 S.W.3d 577, reversed and remanded. 141k39 Extent of Right Cable company petitioned for review. The Supreme 141k42 k. By express grant or reservation. Court, Harriet O'Neill, J., held that: (1) easement Most Cited Cases permitting use of property for the purpose of con- Courts apply basic principles of contract con- structing and maintaining an “electric transmission struction and interpretation when considering an or distribution line or system” did not permit cable- express easement's terms. television lines to be strung across property owners' [4] Easements 141 42 land without their consent, and (2) statute permit- ting cable companies to install lines on a “utility 141 Easements easement” did not apply to private-easement grants, 141II Extent of Right, Use, and Obstruction disapproving Inwood West Civic Association v. 141k39 Extent of Right Touchy, 754 S.W.2d 276. 141k42 k. By express grant or reservation. Most Cited Cases Affirmed. The contracting parties' intentions, as ex- Hecht, J., filed dissenting opinion. pressed in an easement's grant, determine the scope of the conveyed interest. West Headnotes [5] Easements 141 42 [1] Easements 141 1 141 Easements 141 Easements 141II Extent of Right, Use, and Obstruction 141I Creation, Existence, and Termination 141k39 Extent of Right 141k1 k. Nature and elements of right. Most 141k42 k. By express grant or reservation. Cited Cases Most Cited Cases A landowner may choose to relinquish a por- When an easement grant's terms are not spe-

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cifically defined, they should be given their plain, [10] Easements 141 42 ordinary, and generally accepted meaning. 141 Easements [6] Easements 141 51 141II Extent of Right, Use, and Obstruction 141k39 Extent of Right 141 Easements 141k42 k. By express grant or reservation. 141II Extent of Right, Use, and Obstruction Most Cited Cases 141k51 k. Purposes of use. Most Cited Cases An asserted public policy does not permit a An easement's express terms, interpreted ac- court to circumvent the contracting parties' intent cording to their generally accepted meaning, delin- by disregarding an easement's express terms and the eate the purposes for which the easement holder specific purpose for which it was granted. Restate- may use the property; nothing passes by implication ment (Third) of Property (Servitudes) § 4.1. except what is reasonably necessary to fairly enjoy the rights expressly granted. [11] Easements 141 51

[7] Easements 141 51 141 Easements 141II Extent of Right, Use, and Obstruction 141 Easements 141k51 k. Purposes of use. Most Cited Cases 141II Extent of Right, Use, and Obstruction If a use does not serve the easement's express 141k51 k. Purposes of use. Most Cited Cases purpose, it becomes an unauthorized presence on If a particular purpose is not provided for in the the land whether or not it results in any noticeable grant, a use pursuing that purpose is not allowed burden to the servient estate. under an easement. [12] Easements 141 42 [8] Easements 141 50 141 Easements 141 Easements 141II Extent of Right, Use, and Obstruction 141II Extent of Right, Use, and Obstruction 141k39 Extent of Right 141k50 k. Mode of use. Most Cited Cases 141k42 k. By express grant or reservation. The manner, frequency, and intensity of an Most Cited Cases easement's use may change over time to accom- When an easement is susceptible to only one modate technological development, but such reasonable, definite interpretation after applying es- changes must fall within the purposes for which the tablished rules of contract construction, court is ob- easement was created, as determined by the grant's ligated to construe it as a matter of law even if the terms. Restatement (Third) of Property (Servitudes) parties offer different interpretations of the ease- §§ 1.2, 4.10. ment's terms.

[9] Easements 141 50 [13] Telecommunications 372 1223

141 Easements 372 Telecommunications 141II Extent of Right, Use, and Obstruction 372VI Cable Television 141k50 k. Mode of use. Most Cited Cases 372k1220 Rights of Way to Public or Private An express easement encompasses only those Property technological developments that further the particu- 372k1223 k. Private property in general. lar purpose for which the easement was granted. Most Cited Cases Restatement (Third) of Property (Servitudes) §§ (Formerly 372k451) 1.2, 4.2, 4.10. Private easement granted to electrical utility,

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permitting utility to use property for the purpose of 361III Construction constructing and maintaining an “electric transmis- 361III(E) Statute as a Whole; Relation of sion or distribution line or system,” did not permit Parts to Whole and to One Another cable-television lines to be strung across property 361k1155 k. Construing together; har- owners' land without their consent. mony. Most Cited Cases (Formerly 361k208, 361k205) [14] Statutes 361 1072 Court must always consider a statute as a whole and attempt to harmonize its various provi- 361 Statutes sions. V.T.C.A., Government Code § 311.021. 361III Construction 361III(A) In General [17] Constitutional Law 92 994 361k1071 Intent 361k1072 k. In general. Most Cited 92 Constitutional Law Cases 92VI Enforcement of Constitutional Provisions (Formerly 361k181(1)) 92VI(C) Determination of Constitutional Court's purpose in construing a statute is to de- Questions termine the Legislature's intent. 92VI(C)3 Presumptions and Construction as to Constitutionality [15] Statutes 361 1080 92k994 k. Avoidance of constitutional questions. Most Cited Cases 361 Statutes (Formerly 92k48(1)) 361III Construction Court must, if possible, construe statutes to 361III(A) In General avoid constitutional infirmities. V.T.C.A., Govern- 361k1078 Language ment Code § 311.021(1). 361k1080 k. Language and intent, will, purpose, or policy. Most Cited Cases [18] Telecommunications 372 1223 (Formerly 361k188) 372 Telecommunications Statutes 361 1082 372VI Cable Television 372k1220 Rights of Way to Public or Private 361 Statutes Property 361III Construction 372k1223 k. Private property in general. 361III(A) In General Most Cited Cases 361k1082 k. Construction based on mul- (Formerly 372k451) tiple factors. Most Cited Cases Term “utility easement,” as used in statute (Formerly 361k176) granting cable companies the right to install lines As a starting point, courts construe statutes as on a utility easement, covers only public easements, written and, if possible, ascertain intent from the that is, those easements dedicated to the public's statutory language; court may also consider other use; thus, the statute does not cover private-ease- factors, including the object the statute seeks to ob- ment grants that are negotiated between owners of tain, legislative history, and the consequences of a private property and individual utility companies; particular construction. V.T.C.A., Government disapproving Inwood West Civic Association v. Code § 311.023. Touchy, 754 S.W.2d 276. V.T.C.A., Utilities Code [16] Statutes 361 1155 § 181.102.

361 Statutes *698 Bob E. Shannon, William Paul Johnson,

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Baker & Botts, Austin, Samara L. Kline, Baker & Marcus Cable to “furnish television antenna ser- Botts, Dallas, and Joe R. Greenhill, Baker & Botts, vice” to area residents, and allowed the cable wires Austin, Linda Reisner, for Petitioner. to be attached only “to the extent [the cooperative] may lawfully do so.” The agreement further Brett L. Bigham, Waxahachie, for Respondents. provided that the electric cooperative did not war- rant or assure any “right-of-way privileges or ease- *699 Justice O'NEILL delivered the opinion of the ments,” and that Marcus Cable “shall be respons- Court, in which Chief Justice PHILLIPS, Justice ible for obtaining its own easements and rights- ENOCH, Justice OWEN, Justice HANKINSON, of-way.” Justice JEFFERSON, Justice RODRIGUEZ, and Seven years later, the Krohns sued Marcus Justice SCHNEIDER joined. Cable, alleging that the company did not have a In this case, we must decide whether an ease- valid easement and had placed its wires over their ment that permits its holder to use private property property without their knowledge or consent. The for the purpose of constructing and maintaining “an Krohns asserted a trespass claim, and alleged that electric transmission or distribution line or system” Marcus Cable was negligent in failing to obtain allows the easement to be used for cable-television their consent before installing the cable lines. The lines. We hold that it does not. We further hold that Krohns sought an injunction ordering the cable section 181.102 of the Texas Utilities Code, which wires' removal, as well as actual and exemplary grants cable companies the right to install lines on a damages. In defense, Marcus Cable asserted a right “utility easement,” does not apply to private ease- to use Hill County Electric's poles under the co- ments like the one at issue here. Accordingly, we operative's easement and under Texas statutory law. affirm the court of appeals' judgment reversing summary judgment in the cable company's favor. Both parties filed motions for summary judg- 43 S.W.3d 577. ment. The Krohns moved for partial summary judg- ment, arguing that Marcus Cable's wires constituted I. Background a trespass. The Krohns requested the court to order This case centers around the scope of a prop- the wires' removal and to set for trial the determina- erty interest granted over sixty years ago. In 1939, tion of damages. Marcus Cable filed a response and Alan and Myrna Krohn's predecessors in interest its own summary-judgment motion, arguing that granted to the Hill County Electric Cooperative an both the Hill County Electric easement and section easement that allows the cooperative to use their 181.102 of the Texas Utilities Code gave it the leg- property for the purpose of constructing and main- al right to place its wires on the Krohns' property. taining “an electric transmission or distribution line or system.” The easement further granted the right The trial court granted summary judgment in to remove trees and vegetation “to the extent neces- Marcus Cable's favor. The court of appeals reversed sary to keep them clear of said electric line or sys- and remanded, holding that neither section 181.102 tem.” nor the easement allowed Marcus Cable's use. 43 S.W.3d at 579. We granted review to consider In 1991, Hill County Electric entered into a whether the cooperative's easement or section “Joint Use Agreement” with a cable-television pro- 181.102 permit Marcus *700 Cable to attach cable- vider, which later assigned its rights under the television lines to Hill County Electric's utility agreement to Marcus Cable Associates, L.P. Under poles without the Krohns' consent. the agreement, Marcus Cable obtained permission from Hill County Electric to attach its cable lines to II. Common Law the cooperative's poles. The agreement permitted [1] A property owner's right to exclude others

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from his or her property is recognized as “ ‘one of erty to be used for the purpose of installing cable- the most essential sticks in the bundle of rights that television lines. are commonly characterized as property.’ ” Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. Marcus Cable raises three arguments to support 2309, 129 L.Ed.2d 304 (1994) (quoting Loretto v. its contention that the original easement encom- Teleprompter Manhattan CATV Corp., 458 U.S. passes cable-television use. First, it argues that 419, 433, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) easements must be interpreted to anticipate and en- (quoting Kaiser Aetna v. United States, 444 U.S. compass future technological developments that 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979))); may not have existed when the easement was ori- see also II W. BLACKSTONE, BLACKSTONE'S ginally granted. Second, Marcus Cable contends COMMENTARIES 139 (Tucker ed. 1803). A that courts should give strong deference to the pub- landowner may choose to relinquish a portion of lic policy behind expanding the provision of cable- the right to exclude by granting an easement, but television services. Third, Marcus Cable argues that such a relinquishment is limited in nature. Cf. San its use is permitted because adding cable-television Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 wires does not increase the burden on the servient S.W.2d 338, 345 (Tex.Civ.App.-Houston [14th estate. These arguments, however, ignore funda- Dist.] 1968, writ ref'd n.r.e.); see generally II mental principles that govern interpreting ease- GEORGE W. THOMPSON, THOMPSON ON ments conveyed by express grant. Those principles PROPERTY §§ 315–16, 319, at 6–7, 14–16, 32–34. lead us to conclude that the original easement does Unlike a possessory interest in land, an easement is not encompass Marcus Cable's use. a nonpossessory interest that authorizes its holder A. Express Easements to use the property for only particular purposes. See [3][4] We apply basic principles of contract RESTATEMENT (THIRD) OF PROPERTY construction and interpretation when considering an (SERVITUDES) § 1.2 cmt. d. express easement's terms. DeWitt County, 1 S.W.3d [2] Marcus Cable claims rights under Hill at 100; Armstrong v. Skelly Oil, Co., 81 S.W.2d County Electric's express easement, that is, an ease- 735, 736 (Tex.Civ.App.-Amarillo 1935, writ ref'd). ment conveyed by an express grant. See DeWitt The contracting parties' intentions, as expressed in County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, the grant, determine the *701 scope of the con- 103 (Tex.1999). While the common law recognizes veyed interest. See DeWitt County, 1 S.W.3d at 103 that certain easements may be assigned or appor- (stating that “the scope of the easement holder's tioned to a third party, the third party's use cannot rights must be determined by the terms of the exceed the rights expressly conveyed to the original grant”); see also Houston Pipe Line Co. v. Dwyer, easement holder. See Cantu v. Cent. Power & Light 374 S.W.2d 662, 664–65 (Tex.1964) (holding that Co., 38 S.W.2d 876, 877 (Tex.Civ.App.-San Anto- parties' intentions are determined by interpreting nio 1931, writ ref'd); Keokuk Junction Ry. Co. v. the real-property grant's language); Garrett v. Dils IES Indus., Inc., 618 N.W.2d 352, 356, 362 (Iowa Co., 157 Tex. 92, 299 S.W.2d 904, 906 (1957) 2000); Buhl v. U.S. Sprint Communications Co., (same); City of Dallas v. Etheridge, 152 Tex. 9, 253 840 S.W.2d 904, 910 (Tenn.1992); cf. Carrithers v. S.W.2d 640, 642 (1952) (same); RESTATEMENT Terramar Beach Cmty. Improvement Assoc., 645 (THIRD) OF PROPERTY (SERVITUDES) § 4.1 S.W.2d 772, 774 (Tex.1983) ( “[A]n easement may (providing that an easement “should be interpreted not create a right or interest in a grantee's favor to give effect to the intention of the parties ascer- which the grantor himself did not possess.”). Mar- tained from the language used in the instrument, or cus Cable's rights, therefore, turn on whether the the circumstances surrounding the creation of the cooperative's easement permits the Krohns' prop- servitude, and to carry out the purpose for which it

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was created”). 110 P.2d 983, 985 (1941) (“It is not necessary for [the easement grantor] to make any reservation to [5][6][7] When the grant's terms are not spe- protect his interests in the land, for what he does cifically defined, they should be given their plain, not convey, he still retains.”). ordinary, and generally accepted meaning. DeWitt, 1 S.W.3d at 101; see also RESTATEMENT [8][9] The common law does allow some flex- (THIRD) OF PROPERTY ibility in determining an easement holder's rights. (SERVITUDES)))))))))))) § 4.1 cmt. d In particular, the manner, frequency, and intensity (“[Easement] language should be interpreted to ac- of an easement's use may change over time to ac- cord with the meaning an ordinary purchaser would commodate technological development. RESTATE- ascribe to it....”); RESTATEMENT (SECOND) OF MENT (THIRD) OF PROPERTY (SERVITUDES) CONTRACTS § 202(3)(a) (“Unless a different in- § 4.10. But such changes must fall within the pur- tention is manifested, where language has a gener- poses for which the easement was created, as de- ally prevailing meaning, it is interpreted in accord- termined by the grant's terms. See id. § 1.2 cmt. d ance with that meaning.”). An easement's express (“The holder of the easement ... is entitled to make terms, interpreted according to their generally ac- only the uses reasonably necessary for the specified cepted meaning, therefore delineate the purposes purpose.”); § 4.10 & cmt. a (noting that manner, for which the easement holder may use the prop- frequency, and intensity of easement may change to erty. See DeWitt, 1 S.W.3d at 100, 103; see also take advantage of technological advances, but only Coleman v. Forister, 514 S.W.2d 899, 903 for purposes for which easement was created); see, (Tex.1974); Vahlsing v. Harrell, 178 F.2d 622, 624 e.g., *702Edgcomb v. Lower Valley Power & Light, (5th Cir.1949) (applying Texas law). Nothing Inc., 922 P.2d 850, 854–55, 858 (Wyo.1996) passes by implication “except what is reasonably (holding that, under easement granted for an elec- necessary” to fairly enjoy the rights expressly gran- tric or telephone line, the easement holder could in- ted. Coleman, 514 S.W.2d at 903; Bland Lake Fish- crease the electricity-carrying capacity and replace ing & Hunting Club v. Fisher, 311 S.W.2d 710, the static-telephone line with fiber-optics line as a 715–16 (Tex.Civ.App.-Beaumont 1958, no writ). matter of “normal development of the respective Thus, if a particular purpose is not provided for in rights and use”); City Pub. Serv. Bd. of San Antonio the grant, a use pursuing that purpose is not al- v. Karp, 585 S.W.2d 838, 841–42 lowed. See Coleman, 514 S.W.2d at 903; Kearney (Tex.Civ.App.-San Antonio 1979, no writ) (holding & Son v. Fancher, 401 S.W.2d 897, 904–05 that a “transformer easement” permitted its holder (Tex.Civ.App.-Fort Worth 1966, writ ref'd n.r.e.); to replace a malfunctioning underground trans- cf. Bickler v. Bickler, 403 S.W.2d 354, 359 former with an aboveground one as “a matter of (Tex.1966). If the rule were otherwise, normal development”); Lower Colo. River Auth. v. Ashby, 530 S.W.2d 628, 629, 632–33 then the typical power line or pipeline easement, (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.) granted for the purpose of constructing and main- (holding that, under the electric-transmission ease- taining a power line or pipeline across specified ment at issue, the easement holder could replace property, could be used for any other purpose, wooden towers with new steel towers and could in- unless the grantor by specific language negated crease the electricity-carrying capacity); RE- all other purposes. STATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.10 illus. 13 (stating that, under Kearney & Son, 401 S.W.2d at 904–05 (citing a 1940s telephone easement, easement holder could LANGE, 4 TEXAS PRACTICE, Land Titles § 384, mount transmitters on its poles for cellular-tele- at 173); see also City of Pasadena v. Califor- phone transmissions unless doing so would unreas- nia–Michigan Land & Water Co., 17 Cal.2d 576,

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onably interfere with enjoyment of the servient es- hering to basic easement principles, we must decide tate). Thus, contrary to Marcus Cable's argument, not what is most convenient to the public or profit- an express easement encompasses only those tech- able to Marcus Cable, but what purpose the con- nological developments that further the particular tracting parties intended the easement to serve. See purpose for which the easement was granted. See *703Dauenhauer v. Devine, 51 Tex. 480, 489–90 RESTATEMENT (THIRD) OF PROPERTY (1879). Hill County Electric could only permit (SERVITUDES) §§ 1.2 cmt. d., 4.2 cmt. a, 4.10 & Marcus Cable to use its easement “so long as that cmt. a. Otherwise, easements would effectively be- use is devoted exclusively to the purposes of the come possessory, rather than nonpossessory, land grant.” Cantu, 38 S.W.2d at 877. interests. See id. § 1.2 cmt. d (distinguishing between an easement that permits its owner to use FN1. We note that the summary-judgment land for only specified purposes, and a possessory evidence indicates that Marcus Cable has land interest that permits its owner to make any use readily available alternatives to attaching of the property). its cable lines to Hill County Electric's util- ity poles. Furthermore, it is undisputed that The emphasis our law places upon an ease- cable-television providers may place their ment's express terms serves important public lines on public property in unincorporated policies by promoting certainty in land transactions. areas. See TEX. UTIL.CODE § 181.102. In order to evaluate the burdens placed upon real property, a potential purchaser must be able to [11] Finally, Marcus Cable contends that its safely rely upon granting language. See RESTATE- use should be allowed because attaching cable- MENT (THIRD) OF PROPERTY (SERVITUDES) television wires to Hill County Electric's utility § 4.1 cmt. d. Similarly, those who grant easements poles does not materially increase the burden to the should be assured that their conveyances will not be servient estate. But again, if a use does not serve construed to undermine private-property the easement's express purpose, it becomes an un- rights—like the rights to “exclude others” or to authorized presence on the land whether or not it “obtain a profit”—any more than what was inten- results in any noticeable burden to the servient es- ded in the grant. See Loretto, 458 U.S. at 436, 102 tate. See McDaniel Bros. v. Wilson, 70 S.W.2d 618, S.Ct. 3164. 621 (Tex.Civ.App.-Beaumont 1934, writ ref'd) (“[E]very unauthorized entry upon land of another [10] Marcus Cable suggests that we should is a trespass even if no damage is done or the injury give greater weight to the public benefit that results is slight ....”); see also Rio Costilla Co-op. Live- from the wide distribution of cable-television ser- stock Ass'n v. W.S. Ranch Co., 81 N.M. 353, 467 vices, arguing that technological advancement in P.2d 19, 25 (1970); Beckwith v. Rossi, 157 Me. 532, Texas will be substantially impeded if the cooperat- 175 A.2d 732, 735–36 (1961). Thus, the threshold ive's easement is not read to encompass cable- inquiry is not whether the proposed use results in a FN1 television use. But even if that were so, we material burden, but whether the grant's terms au- may not circumvent the contracting parties' intent thorize the proposed use. With these principles in by disregarding the easement's express terms and mind, we turn to the easement at issue in this case. the specific purpose for which it was granted. See RESTATEMENT (THIRD) OF PROPERTY B. Hill County Electric's Easement (SERVITUDES))))))))))))) § 4.1 & cmt. d [12] Both parties urge us to determine Marcus (indicating that a court may not adopt an easement Cable's easement rights as a matter of law. When an interpretation based on public policy unless that in- easement is susceptible to only one reasonable, def- terpretation is supported by the grant's terms). Ad- inite interpretation after applying established rules of contract construction, we are obligated to con-

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strue it as a matter of law even if the parties offer Power & Light Co., 73 S.W.2d 1060, 1061 different interpretations of the easement's terms. (Tex.Civ.App.-San Antonio 1934, writ dism'd) DeWitt, 1 S.W.3d at 100. Because the easement (using term electric *704 transmission to describe here can be given a definite meaning, we interpret it equipment used by power companies to convey as a matter of law. electricity). Accordingly, we construe the ease- ment's terms to allow use of the property for facilit- [13] The easement granted Hill County Electric ies to transmit electricity. the right to use the Krohns' property for the purpose of constructing and maintaining an “electric trans- Marcus Cable does not argue that the generally mission or distribution line or system.” The terms prevailing meaning of the easement's grant encom- “electric transmission” and “electric distribution” passes cable-television services. Instead, it claims are commonly and ordinarily associated with power that, for reasons of public policy, we should con- companies conveying electricity to the public. See, strue the easement to embrace modern develop- e.g., Texas Power & Light Co. v. Cole, 158 Tex. ments, without regard to the easement's language. 495, 313 S.W.2d 524, 526–27, 530 (1958); Resen- In support of that position, Marcus Cable cites a dez v. Lyntegar Elec. Coop., Inc., 511 S.W.2d 350, number of decisions in other jurisdictions that have 352–53 (Tex.Civ.App.Amarillo 1974, no writ); allowed the use of easements predating cable tech- Upshur–Rural Elec. Coop. Corp. v. State, 381 nology to allow installation of cable transmission S.W.2d 418, 424 (Tex.Civ.App.-Austin 1964, writ lines. dism'd) (using terms electric transmission and/or distribution to describe equipment used by power The cases Marcus Cable cites, however, in- companies to convey electricity); see also RE- volve different granting language and do not sup- STATEMENT (THIRD) OF PROPERTY port the proposition that we may disregard the (SERVITUDES))))))))))))) § 4.10 illus. 3 & 12 parties' expressed intentions or expand the purposes (using “electric-transmission lines” to designate for which an easement may be used. To the con- lines operated by power companies); TEX. trary, those cases involve easements containing UTIL.CODE § 39.157(a), (d)(3) (providing that much broader granting language than the easement Public Utility Commission shall regulate market- before us. Most of them involved easements gran- power abuses in the sale of electricity by utilities ted for communications media, such as telegraph “providing electric transmission or distribution ser- and telephone, in addition to electric utility ease- vices”). Texas cases decided around the time the ments. In concluding that the easements were broad cooperative's easement was granted strongly sug- enough to encompass cable, the reviewing courts gest that this was the commonly understood mean- examined the purpose for which the easement was ing of those terms. See, e.g., City of Bryan v. A & M granted and essentially concluded that the ques- Consol. Indep. Sch. Dist., 179 S.W.2d 987, 988 tioned use was a more technologically advanced (Tex.Civ.App.-Waco 1944), aff'd, 143 Tex. 348, means of accomplishing the same communicative 184 S.W.2d 914 (1945); Texas–New Mexico Utils. purpose. Co. v. City of Teague, 174 S.W.2d 57, 59 For example, in Salvaty v. Falcon Cable Tele- (Tex.Civ.App.-Fort Worth 1943, writ ref'd w.o.m.); vision, the 1926 easement permitted its holder to Arcola Sugar Mills Co. v. Houston Lighting & maintain both electric wires and telephone wires. Power Co., 153 S.W.2d 628, 629–30 165 Cal.App.3d 798, 212 Cal.Rptr. 31, 32, 35 (Tex.Civ.App.-Galveston 1941, writ ref'd w.o.m.); (1985). The court held that cable-television lines McCulloch County Elec. Co-op., Inc. v. Hall, 131 were within the easement's scope, observing that S.W.2d 1019, 1020, 1022 (Tex.Civ.App.-Austin cable television is “part of the natural evolution of 1939, writ dism'd); Willacy County v. Central communications technology.” Id. at 34–35

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(emphasis added); accord Witteman v. Jack Barry cluding that cable-television wires were no greater Cable TV, 228 Cal.Rptr. 584, 589 burden “than that contemplated by the original (Cal.Ct.App.1986) (same). Similarly, the Fourth easements”). Circuit held that an easement allowing its holder to use the land for the purpose of maintaining pole We express no opinion about whether the cases lines for “electrical and telephone service” was suf- Marcus Cable relies upon were correctly decided. ficiently broad to encompass cable-television lines. But, unlike the cases Marcus Cable cites, Hill C/R TV, Inc. v. Shannondale, Inc., 27 F.3d 104, County Electric's easement does not convey the 106, 109–10 (4th Cir.1994) (applying West Virgin- right to use the property for purposes of transmit- ia law). In reaching its conclusion, the court relied ting communications. While cable television may on the similar communicative aspects of both utilize electrical impulses to transmit communica- FN2 “telephone services” and cable-television services. tions, as Marcus Cable claims, television trans- Id. at 109–10. Other cases Marcus Cable cites also mission is not a more technologically advanced involvedeasementsgrantedforcommunications-trans- method of delivering electricity. Thus, the above- mission purposes. See, e.g., Cousins v. Alabama referenced cases do not support Marcus Cable's ar- Power Co., 597 So.2d 683, 686–87 (Ala.1992) gument that the easement here encompasses the ad- (involving easements—granted for the purpose of ditional purpose of transmitting television content maintaining “electric transmission lines and all tele- to the public. graph and telephone lines”—that the landowners FN2. Marcus Cable did not offer any evid- conceded included the right to maintain fiber-optics ence about the nature of cable-television telecommunications lines); Jolliff v. Hardin Cable transmissions; thus, the record is silent on Television Co., 26 Ohio St.2d 103, 55 O.O.2d 203, this point. But we note that, in recent 269 N.E.2d 588, 591 (1971) (concluding that cable- years, many telecommunications providers, television wires were a burden “contemplated at the including cable-television operators, have time of the grants [to the power company], as evid- moved toward fiber-optics cables that use enced by the specific reference to telegraph and light lasers, rather than electrical impulses, telephone wires” in the 1940 easement); Am. Tel. & to transmit communications over their Tel. Co. of Mass. v. McDonald, 273 Mass. 324, 173 lines to the public. See, e.g., Mike Mills, N.E. 502, 502–03 (1930) (concluding that easement Fine Lines of Telecommunications, THE granted for the purpose of maintaining “lines of WASH. POST,, Aug. 5, 1996, at F17. telephone and telegraph” could be apportioned by the easement holder to a telephone company seek- Marcus Cable cites only two cases involving ing to install a telephone cable, and that “[n]othing easements whose grants did not include telephone granted to the [company] enables it to do anything or telegraph services, and neither supports its posi- which the original grantee could not have done”); tion. In Centel Cable Television, Inc. v. Cook, the Henley v. Continental Cablevision of St. Louis court interpreted easement language that permitted County, Inc., 692 S.W.2d 825, 827, 829 its holder to maintain “a line for the transmission (Mo.Ct.App.1985) (concluding that cable television and/or distribution of electric energy thereover, for fell within the 1922 easement grantors' expressed any and all purposes for which electric energy is *705 intention to provide “electric power and tele- now, or may hereafter be used. ” 58 Ohio St.3d 8, phonic communications” to subdivision residents); 567 N.E.2d 1010, 1014 (1991) (emphasis added). Hoffman v. Capitol Cablevision Sys., Inc., 52 Observing that cable-television broadcasting “ util- A.D.2d 313, 383 N.Y.S.2d 674, 676, 677 ize[s] ... ‘electric energy,’ ” the court concluded (N.Y.App.Div.1976) (involving easements for the that the grant language was broad enough to en- “distribution of electricity and messages,” and con- compass cable television. Id. (emphasis added).

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And Hise v. BARC Electric Cooperative, 254 Va. be strung across the Krohns' land without their con- 341, 492 S.E.2d 154, 158 (1997), involved a right- sent. However laudable the goal of extending cable of-way easement by prescription that had been used service might be, we cannot disregard the ease- for cable-television lines during the prescriptive ment's express terms to enlarge its purposes beyond period and that was later widened through eminent those intended by the contracting parties. To the ex- domain. It did not involve a privately-negotiated, tent the trial court granted Marcus Cable summary express easement. See, e.g., Nishanian v. Sirohi, judgment on this basis, it erred, and the court of ap- 243 Va. 337, 414 S.E.2d 604, 606 (1992) (“The use peals correctly reversed. of an [express] easement must be restricted to the terms and purposes on which the grant was based.” III. Section 181.102 (citing Robertson v. Bertha Mineral Co., 128 Va. Marcus Cable contends that, even if Hill 93, 104 S.E. 832, 834 (1920))). The easements in County Electric's easement does not permit it to Marcus Cable's cited cases are simply not compar- string cable-television wires across the Krohns' able to the more limited, express easement presen- property, section 181.102 of the Texas Utilities ted here. Code does. That section, which allows cable- television service providers to utilize certain prop- Finally, Marcus Cable cites San Antonio & erties, provides: Aransas Pass Railway v. Southwestern Telegraph & Telephone Co., 93 Tex. 313, 55 S.W. 117 (1900), (a) In an unincorporated area, a person in the for the proposition that an easement must be inter- business of providing community antenna or preted to embrace technological change. But that cable television service to the public may install case does not support the idea that a court may ig- and maintain equipment through, under, along, nore the contracting parties' intent as reflected in across, or over a utility easement, a public road, their written language. There, we were called upon an alley, or a body of public water in accordance to determine whether a statute granting condemna- with this subchapter. tion power to “telegraph” companies applied (b) The installation and maintenance of the equally to “telephone” companies. Id. Relying upon equipment must be done in a way that does not later statutory enactments that reflected the Legis- unduly inconvenience the public using the af- lature's intent to treat both the same, and recogniz- fected property. ing that telegraph and telephone are two different means of accomplishing the same communicative TEX. UTIL.CODE § 181.102. purpose, we held that the statute *706 at issue ap- plied to telephone companies. Id. at 118–19. Marcus Cable argues that the statute's plain language encompasses private easements like the The dissenting Justice would hold that the one at issue here. Specifically, Marcus Cable con- easement could properly be read to encompass tends that the term “utility easement” is not quali- cable because electricity is used in the transmission fied by the term “public,” as are other properties of cable television signals. Under such a reading, listed in the statute, and therefore the Legislature however, the easement could also be used for tele- must have intended to cover private-easement graph or telephone lines. Obviously, the Krohns' grants to utility companies. The Krohns, on the oth- predecessors could have granted an easement for er hand, argue that the statute's language, purpose, those purposes. But the easement's specific terms and legislative history support a distinction between cannot be read so broadly. general-use, public-utility easements and limited private-easement grants. We agree with the Krohns. In sum, the easement language here, properly construed, does not permit cable-television lines to

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[14][15][16][17] Our purpose in construing a easements. Hearings on S.B. 643 Before the House statute is to determine the Legislature's intent. See Comm. on Urban Affairs, 68th Leg., R.S. (April 28, Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 1983). Finally, construing the statute to cover only (Tex.2001). As a starting point, we construe stat- public easements avoids constitutional infirmities. utes as written and, if possible, ascertain intent In Loretto, the United States Supreme Court ana- from the statutory language. Id. (citing Morrison v. lyzed a New York statute that granted cable- Chan, 699 S.W.2d 205, 208 (Tex.1985)). We may television companies the right to place their equip- also consider other factors, including the object the ment on apartment buildings, and held that apply- statute seeks to obtain, legislative history, and the ing the statute to private property would effect a consequences of a particular construction. Id.; see “taking” in violation of the Fifth Amendment. Lor- also TEX. GOV'T CODE § 311.023. Moreover, we etto, 458 U.S. at 421, 102 S.Ct. 3164. The Court must always consider a statute as a whole and at- reasoned that “a permanent physical occupation au- tempt to harmonize its various provisions. Helena thorized by government is a taking without regard Chem., 47 S.W.3d at 493; see also TEX. GOV'T to the public interests that it may serve,” and that CODE § 311.021. We must also, if possible, con- “permanent occupations of land by such installa- strue statutes to avoid constitutional infirmities. In tions as telegraph and telephone lines ... or wires re Bay Area Citizens Against Lawsuit Abuse, 982 are takings even if they occupy only relatively in- S.W.2d 371, 380 (Tex.1998); Nootsie, Ltd. v. Willi- substantial amounts of space and do not seriously amson County Appraisal Dist., 925 S.W.2d 659, interfere with the landowner's use of the rest of his 662 (Tex.1996); see also TEX. GOV'T CODE § land.” Id. at 426, 430, 102 S.Ct. 3164. We also note 311.021(1). that a number of federal courts, construing the Cable Communications Policy Act, have recog- [18] Applying these principles, we hold that nized the constitutional concerns that would arise section 181.102 does not encompass *707 private from requiring private parties to grant property ac- easements granted to utilities. The term “utility cess to uninvited cable companies whenever a easement” appears in a list of properties—public private easement has been granted to other specific roads, alleys, and public waterways—that are gen- service providers. See, e.g., Cable Ariz. Corp. v. erally dedicated to public use. Subsection (b) goes CoxCom, Inc., 261 F.3d 871, 876 (9th Cir.2001); on to prohibit cable companies from “unduly incon- TCI of N.D., Inc. v. Schriock Holding Co., 11 F.3d venienc[ing] the public using the affected property, 812, 815 (8th Cir.1993); Cable Holdings of Ga., ” indicating that the Legislature presumed public Inc. v. McNeil Real Estate Fund VI, Ltd., 953 F.2d access to the property interests listed in subsection 600, 604–05 (11th Cir.), cert. denied, 506 U.S. 862, (a). TEX. UTIL.CODE § 181.102(b) (emphasis ad- 113 S.Ct. 182, 121 L.Ed.2d 127 (1992); Cable ded). Thus, consistent with the nature of the other Invs., Inc. v. Woolley, 867 F.2d 151, 159–60 (3d specified properties, and harmonizing the statute's Cir.1989). Thus, construing section 181.102 to cov- subsections, “utility easement” can reasonably be er private property could have significant constitu- read to cover only public easements, that is, those tional implications. easements dedicated to the public's use. See, e.g., Clark v. El Paso Cablevision, Inc., 475 S.W.2d In sum, we hold that section 181.102 does not 575, 577 (Tex.Civ.App.-El Paso 1971, no writ). cover private-easement grants, like the one at issue here, that are negotiated between owners of private The limited legislative history that is available FN3 property and individual utility companies. supports this interpretation. Statements were re- peatedly made in hearings indicating that section FN3. In Inwood West Civic Association v. 181.102 was intended to encompass only public Touchy, 754 S.W.2d 276, 277

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(Tex.App.-Houston [14th Dist.] 1988, orig. appliance in the Sardis area would be a television proceeding), in the course of considering a set. And they could not possibly have imagined that pre-trial discovery dispute, the court stated televisions powered by the electric current carried in dicta that section 181.102 gives “cable by lines over their easement would have better re- television companies free access to utility ception if supplied with an electric signal transmit- easements across private property for the ted over another look-alike line hung on the same installation of their equipment.” We disap- poles, even if the Curtises had been as precocious prove this statement. as Philo Farnsworth himself.

IV. Conclusion FN1. See generally EVAN I. We hold that Hill County Electric's easement SCHWARTZ, THE LAST LONE IN- does not convey the right to string cable-television VENTOR: A TALE OF GENIUS, DE- wires over the Krohns' private property. Nor does CEIT, AND THE BIRTH OF TELEVI- section 181.021 confer such a right upon Marcus SION (2002); DANIEL STASHOWER, Cable, because the statute covers only utility ease- THE BOY GENIUS AND THE MOGUL: ments that are dedicated to *708 public use. Ac- THE UNTOLD STORY OF TELEVISION cordingly, we affirm the court of appeals' judgment (2002); Neil Postman, Electrical Engineer, reversing and remanding this case to the trial court TIME, March 29, 1999, at 92 (quoting for further proceedings. Farnsworth's son Kent as saying of his father: “I suppose you could say that he Justice HECHT filed a dissenting opinion. felt he had created kind of a monster, a way for people to waste a lot of their lives. Justice HECHT, dissenting. Throughout my childhood his reaction to The electric television (not its short-lived elec- television was, ‘There's nothing on it tro-mechanical predecessor) was conceived in 1921 worthwhile, and we're not going to watch by fourteen-year-old Philo Farnsworth, who made a FN1 it in this household, and I don't want it in working model in 1927, twelve years before your intellectual diet.’ ”). RCA's National Broadcasting Company first began regular telecasts from the World's Fair in New York FN2. See S. Res. 445, 100th Cong. (1988). City, and H.W. and Ruth Curtis granted Hill County Electric Cooperative an easement on their So if the question is, what were the Curtises land north of Sardis, Texas, “to place, construct, thinking in 1939 when they gave the Co-op an ease- operate, repair, maintain, relocate and replace ... an ment for “an electric transmission and distribution electric transmission and distribution line or sys- line or system”, the answer is easy: they were tem”. After 1939, television took off. Cable televi- thinking about electric power, not an electric cable sion is said to have originated in 1948 when John television signal, even though both are electric. But Walson of Mahanoy City, Pennsylvania, used a that's not the question because, as the Court cor- twin-lead wire to transmit an electric signal from a rectly holds, the scope of an easement is measured remote antenna to his store to demonstrate to his by the parties' intent as expressed in the words FN3 customers how reception could be improved and used, broadened by changes in the manner, thereby increase his sales of the newfangled televi- frequency, and intensity of the intended use that are FN2 sion sets. The Curtises no doubt intended that due to technological advances and do not unreason- FN4 by granting the Co-op an easement, wires strung on ably burden the servient estate. An easement poles erected on their property would be used to need not accommodate unintended uses merely be- transmit electric current to power lights and appli- cause they present no additional burden, nor can an ances. They probably did not envision that one such easement be enlarged merely because additional

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uses would benefit the public. But a use that is But the Court answers the question no. Here is within the language of an easement as it has come its analysis: to be understood with changes in technology is not prohibited simply because it was not part of the (1) “The terms ‘electric transmission’ and parties' original thinking. So *709 the question in ‘electric distribution’ are commonly and ordinar- this case is whether a cable carrying an electric ily associated with power companies conveying FN6 television signal to various users is “an electric electricity to the public.” transmission and distribution line or system” as we have come to understand more of what those words FN6. Ante at 703. entail. (2) “Texas cases decided around the time the co- FN3. DeWitt County Elec. Coop., Inc. v. operative's easement was granted strongly sug- Parks, 1 S.W.3d 96, 100–103 (Tex.1999). gest that this was the commonly understood See RESTATEMENT (THIRD) OF PROP- FN7 meaning of those terms.” ERTY (SERVITUDES) § 4.1 (1998). FN7. Ante at 703. FN4. See RESTATEMENT, supra note 3, at § 4.10 & cmt. a. (3) “While cable television may utilize electrical impulses to transmit communications, as Marcus Now if one were to stick just to the words, the Cable claims, television is not a more technolo- answer would clearly be yes. A television cable is a gically advanced method of delivering electri- “line”. A television signal is “electric”, assuming, FN8 city.” as the Court does, that the cable is not fiber optic (although even if the cable were fiber optic, the sig- FN8. Ante at 705 (footnote omitted). nal would still start out electric at the transmitter FN5 (4) Although easements for electric transmission and end up electric at the receiver). Sending the signal is “an electric transmission”. Transmitting it have been held to include cable television signal among a number of users is “an electric distribu- transmission in all seven cases that have con- FN9 tion”. Thus, a television cable is “an electric trans- sidered the matter in other jurisdictions, the mission and distribution line”. Looking at a pole language of the easements in all those cases was FN10 carrying lines transmitting electric power and a line broader. transmitting television signals, a person unfamiliar FN9. Centel Cable Television Co. v. Cook, with differences in the physics of the transmissions 58 Ohio St.3d 8, 567 N.E.2d 1010, could not tell which was which. 1014–1015 (1991); Jolliff v. Hardin Cable FN5. Cf. KENNETH T. DESCHLER, Television Co., 26 Ohio St.2d 103, 55 CABLE TELEVISION TECHNOLOGY O.O.2d 203, 269 N.E.2d 588, 591 (1971); 24 (1987) (explaining that for a signal Salvaty v. Falcon Cable Television, 165 broadcast by air, “[i]n effect, electrical en- Cal.App.3d 798, 212 Cal.Rptr. 31, 34–36 ergy from the transmitter is converted into (1985); Witteman v. Jack Barry Cable TV, electromagnetic energy by the antenna and 228 Cal.Rptr. 584 (Cal.Ct.App.1986), re- radiated into space. On the reception end, view dismissed, 240 Cal.Rptr. 449, 742 electromagnetic energy is converted into P.2d 779 (Cal.1987); Henley v. Cont'l electrical energy by the antenna and fed in- Cablevision, Inc., 692 S.W.2d 825, 829 to the receiver.”). (Mo.Ct.App.1985); Hoffman v. Capitol Cablevision Sys., Inc., 52 A.D.2d 313, 383

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N.Y.S.2d 674, 677–678 AMERICANA 134 (Int'l ed.1976). (N.Y.App.Div.1976); C/R TV, Inc. v. Shan- nondale, Inc., 27 F.3d 104, 108–109 (4th As the Court says (3), television is certainly not Cir.1994) (applying West Virginia law). a more technologically advanced method of deliver- ing electric current, but that simplistic observation FN10. Ante at 704. begs the issue. Are the technological changes relev- ant to understanding the scope of the easement While each of these elements in the Court's those in “electric transmission and distribution” of reasoning is irrefutable, they prove nothing. The whatever nature, or only those in the transmission fact (1) that the words “electric transmission and and distribution of electric current? The answer is distribution” are often used in reference to electric the former, if we are to be faithful to the language power does not mean that they therefore cannot be of the easement. Is transmission of a cable televi- used in reference to any other electric transmission, sion signal a more technologically advanced like a cable television signal. In fact, the words “electric transmission”? Clearly, yes. have a broader reference. For example, a statute regulating telecommunications refers to “any type The Court is correct (4) that in six of the seven of system in which electric ... signals are *710 used cases from other jurisdictions that have considered to transmit information, including a system trans- whether an easement for electric transmission can FN11 mitting information by ... wire or cable” —in be shared by cable television, the easements ex- FN13 other words, an electric transmission system for in- pressly permitted telephone lines. Because the formation by line or cable. Of course, (2) the words telephone is used for communication, the Court could not have referred to a cable television signal reasons, the easements in those cases were broader in 1939, but only because no such thing existed, not and could include—the Court will not say could because of the caselaw of the era. Our understand- properly include—cable television. Since the ease- ing of what “electric” means has changed im- ment in the present case does not expressly allow mensely over time. Before Michael Faraday, Ben- for telephone lines, the Court concludes that it does jamin Franklin, and others discovered electric cur- not permit any use for purposes*711 of communic- rents, “electric” referred to the static, magnetic con- ation. But electric power is used for communication dition of certain materials, like amber rubbed with a in the very important sense that neither a television FN12 cloth. Indeed, the word “electric” derives nor a telephone will operate without it. Indeed, a from the Latin, electrum, meaning “amber”. The television without a cable signal still has limited re- meaning of “electric”, as we have come to under- ception, while a television without electric power is stand better the phenomenon to which it refers, can nothing but a big doorstop, whether it is hooked up no more be confined to electric current than it could to cable or not. It is just not true that an easement to static electricity or cloth-rubbed amber. Caselaw for telephone wires contemplates the use of com- reflecting the understanding of “electric” in 1939 munication devices and an easement for electric does not dictate all that the word means. current does not. It makes no sense to say, as the Court does, that because an easement for electric FN11. TEX. OCC.CODE § lines can be used to supply power to a television re- 1701.405(a)(1)(B). ceiver, the easement excludes an electric line used to supply a signal to that receiver. It is not surpris- FN12. See generally Ask the Globe, THE ing, then, that the courts in the six cases do not BOSTON GLOBE, August 3, 1989, at 28 draw this distinction; that is, none says that if an (explaining that, in 1600, Dr. William Gil- easement referred only to electric transmission and bert coined the phrase ‘electrica’ in a book not telephone transmission, cable television trans- about amber); 10 ENCYCLOPEDIA

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mission over the easement would be prohibited. In fact, Marcus Cable asserts that no case in the country has ever barred cable television from an FN13. Jolliff v. Hardin Cable Television easement for electric transmissions, and neither the Co., 26 Ohio St.2d 103, 269 N.E.2d 588, Krohns nor the Court has found one. Today's de- 590 (1971) (involving an easement “to cision stands alone in the nation athwart the path to construct, erect, operate and maintain a providing cable television and related services to line of poles and wires for the purpose of rural areas. It directly conflicts with one of the sev- transmitting electric or other power, in- en cases that did not involve an easement that re- cluding telegraph or telephone wires”); ferred to telephone transmissions. There, the Su- Salvaty v. Falcon Cable Television, 165 preme Court of Ohio held that an easement “for a Cal.App.3d 798, 212 Cal.Rptr. 31, 32 line for the transmission and/or distribution of elec- (1985) (involving easement “for the con- tric energy thereover, for any and all purposes for struction, operation, repair and mainten- which electric energy is now, or may hereafter be ance thereon and thereover of a pole line FN14 used” allowed for a cable television line. But for the stringing of telephone and electric the easement in that case only provided expressly light and power wires thereon”); Witteman what the law implies in the easement before us: that v. Jack Barry Cable TV, 228 Cal.Rptr. 584, “electric transmission and distribution” includes all 586 (Cal.Ct.App.1986), review dismissed, purposes for which electric transmissions are now 240 Cal.Rptr. 449, 742 P.2d 779 or may hereafter be used, uses made possible only (Cal.1987) (involving an easement for by subsequent technological developments. The “constructing, adding to, maintaining, re- legal effect of the language in both easements moving and repairing ... pole lines ... for should be the same. the transmission of electrical energy and for telephone lines”); Henley v. Cont'l FN14. Centel Cable Television Co. v. Cablevision, Inc., 692 S.W.2d 825, 827 Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010, (Mo.Ct.App.1985) (involving an easement 1015 (1991). to “construct, reconstruct, repair, operate and maintain its lines for telephone and I would hold that the easement in the present electric light purposes”); Hoffman v. Cap- case can be shared with a cable television provider itol Cablevision Sys., Inc., 52 A.D.2d 313, if the servient estate is not additionally burdened. 383 N.Y.S.2d 674, 676, 677–678 (1976) The Krohns argue that there would be an additional (involving an easement “to construct, burden for three reasons. First, the Krohns suggest maintain, operate, repair and replace lines, that “the placement of the cable line decreases the consisting of poles, conduits, guys, guy clearance which we have through one of our en- stubs, crossarms, wires and appurtenances trances”. Assuming that this is so, as we must in re- for the distribution of electricity and mes- viewing a summary judgment, there is no evidence sages”); C/R TV, Inc. v. Shannondale, Inc., that a cable line is or could be lower than lines 27 F.3d 104, 109 (4th Cir.1994) (applying already on the poles. The height of lines on electric FN15 West Virginia law) (involving an easement poles is governed by statute. If the clearance for “the installation, erection, maintenance, at an entrance is decreased, it is only because the repair and operation of electric transmis- decrease is permitted by law regardless of whether sion and distribution pole lines, and elec- the easement is used for cable television or other tric service lines, with telephone wires electric transmission. Second, the Krohns argue that thereon”). if the Co-op lets one cable television provider share the easement, federal law requires that it let all such

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providers do so on a nondiscriminatory basis, and if Paper Company, and Texas Farm Bureau. more providers are allowed to hang their wires on the poles, the burden to the servient estate will be FN18. Federal Communications Comm'n increased as workers and equipment enter the prop- v. Florida Power Corp., 480 U.S. 245, erty to construct and maintain the lines. Obviously, 247, 107 S.Ct. 1107, 94 L.Ed.2d 282 the Krohns' concern is somewhat iffy, but even if it (1987) (“Cable television operators, in or- were to begin to materialize, their easement would der to deliver television signals to their not be required to accommodate uses that presented subscribers, must have a physical carrier an additional burden, and thus the number of users for the cable; ... [u]tility company poles would be limited. Finally, the Krohns argue that to provide ... virtually the only practical allow a cable television line on the Co-op's poles physical medium for the installation of clouds *712 their title. But the Krohns do not ex- television cables. Over the past 30 years, plain how their title is more affected by Marcus utility companies throughout the country Cable's use of the easement than by the Co-op's use. have entered into arrangements for the Thus, I would conclude that the Krohns have failed leasing of space on poles to operators of to show that Marcus Cable's use of the easement cable television systems.”) poses any greater burden to their estate. The Association, on the other hand, warns that FN15. TEX. UTIL.CODE § 181.045. this case “will significantly affect the future of the cable and telecommunications industries in Texas,” Two amici curiae in support of the Krohns' po- especially in rural areas. The gravity of this threat FN16 sition urgently warn that to allow Marcus cannot be evaluated without knowing how many of Cable to share the Co-op's easement will pro- the thousands of other easements that are being foundly impact the property rights of all Texas used are like the one in this case, and whether the landowners. Other amici concur in less dramatic Court would construe other language differently. FN17 terms. The threat they perceive is inconsistent One can reasonably expect, however, that there will with experience. The Texas Cable and Telecommu- be ample litigation over the matter, thereby increas- nications Association, as amicus curiae for Marcus ing the costs of providing telecommunications ser- Cable, advises that cable television providers vices without affording any benefit. already share electric poles on easements covering thousands of miles in Texas. The Association I would hold that the Krohns' easement to the states, and the United States Supreme Court con- Co-op for electric transmission and distribution FN18 lines can be apportioned or divided with Marcus firms, that this has been going on for decades all over the country. Although every case to con- Cable, based on the development of cable television sider the issue until today has allowed cable televi- since the easement was granted in 1939. Accord- sion lines to be hung on electric power and tele- ingly, I respectfully dissent. phone poles, private land ownership has survived. Tex.,2002. FN16. Independent Cattlemen's Associ- Marcus Cable Associates, L.P. v. Krohn ation of Texas and Texas Forestry Associ- 90 S.W.3d 697, 46 Tex. Sup. Ct. J. 167 ation. END OF DOCUMENT FN17. The Texas Land & Mineral Owners Association, The Texas and Southwestern Cattle Raisers Association, Temple–Inland Forest Products Corporation, International

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FN1 of the Estate of Roy M. Hofheinz, Deceased, second condemnation proceeding in another court James Fred Hofheinz, and Dene Hofheinz Anton, to acquire rights to the remaining 7/12 undivided also known as Dene Hofheinz Mann (collectively interests, a proceeding not involved in this appeal. FN2 “the Adjudicated Owners”). Roy M. Hofheinz, Jr. and the Hofheinz Family Trust No. 2 (the latter en- tity being “the Trust”), named in the condemnation FN2. Metro filed an amended petition de- petition but not served with notice of the hearing, leting reference to the Unserved Owners also appear as appellees (together “the Unserved after the hearing and the filing of its objec- Owners”). Finding the trial court erred in dismiss- tions, but prior to the dismissal order. ing Metro's lawsuit for lack of jurisdiction, we re- Following the trial court's approval of the spe- verse the dismissal and award of attorney's fees, cial commissioners' award, Metro filed objections and remand the case for further proceedings. to the commissioners' findings under section 21.018 FN1. The record reflects Mary F. Hofheinz of the Texas Property Code, appealing the award as “executor,” not “executrix.” We have and findings to the trial court. Shortly thereafter, followed the record's designation. the Adjudicated Owners and the Unserved Owners jointly filed a motion to dismiss the condemnation *756 FACTUAL BACKGROUND proceeding, arguing that lack of notice and service As part of the construction of the 7.5–mile light on the Unserved Owners deprived the special com- rail line running from downtown Houston to the missioners (and thus the trial court) of subject mat- FN3 Astrodome area, Metro sought to acquire a ter jurisdiction. After initially rejecting this ar- 1.65–acre tract of land owned by appellees. Metro gument, the trial court subsequently agreed and dis- began construction work on the property under a missed the original lawsuit for lack of jurisdiction. temporary right of entry agreement obtained from At the dismissal hearing, the court noted that al- two of the appellees, however when purchase nego- though separate condemnation proceedings are not tiations deteriorated, Metro initiated condemnation prohibited, Metro had opted to name all the undi- proceedings. Metro's original petition and statement vided interest owners in one proceeding then failed in condemnation filed July 2001 named all of the to dismiss the two unserved parties prior to the spe- appellees as owners of the property. The trial court cial commissioners' hearing, thus violating the re- appointed special commissioners pursuant to Sec- quirement that all parties be given notice of the tion 21.014 of the Texas Property Code and set the hearing. In its findings of fact and conclusions of required hearing, but Metro was unable to serve no- law, the trial court concluded that Metro failed to tice of the hearing on the two Unserved Owners. On strictly comply with the Texas Property Code by September 26, 2001, the morning of the hearing, failing to serve notice of the hearing on Roy M. Metro filed a notice of absence of service advising Hofheinz, Jr. and the Trust or dismissing them prior the special commissioners that despite diligent ef- to the hearing. This, in turn, deprived the commis- forts, it had not been able to serve Roy M. Hof- sioners of jurisdiction to proceed with the condem- heinz, Jr. and the Trust, and would be proceeding nation hearing and deprived the trial court of juris- only against the owners of a 5/12 undivided interest diction to proceed with the lawsuit. The dismissal in the property who had been served. After the order granted appellees attorney's fees and costs hearing, the special commissioners entered an against Metro in an amount of $57,452.50. award as to the 5/12 undivided interests of the own- ers who had been served, but did not adjudicate the FN3. Appellees also jointly filed objec- remaining 7/12 undivided interests of Roy M. Hof- tions to the award in the same pleading, heinz, Jr. and the Trust. Metro then initiated a subject to their motion to dismiss.

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In two issues, Metro contends the dismissal Metro's condemnation action. In essence, appellees was inappropriate because (1) appellees lacked contend the court lacked jurisdiction because (1) all standing to seek dismissal; and (2) the trial court owners must be named and served in one proceed- erred in ruling it had no jurisdiction. ing; and (2) not all of the named owners were served in this case. ANALYSIS Texas has enacted a comprehensive statutory Subject Matter Jurisdiction—Failure to Serve all scheme governing the State's *757 eminent domain Owners power, setting forth jurisdictional requirements that [3] Regarding Metro's jurisdiction issue, ap- must be met before it can condemn private property pellees first argue that the trial court lacked juris- for public use. See TEX. PROP.CODE §§ 21.001 diction over the condemnation proceeding because –.065. Condemnation proceedings have two distinct Metro failed to serve all owners with notice of the phases. The first phase is administrative, involving commissioners' hearing. Implicit in this argument is a hearing before three special commissioners ap- the assertion that jurisdiction is not acquired unless pointed by the trial court. Id. §§ 21.014–.015. After all owners are named and served in one condemna- a hearing, the commissioners enter findings and de- tion proceeding. Because the only evidence presen- termine condemnation damages due the property ted at the dismissal hearing pertained to costs and owner. Id. §§ 21.014, 21.018. If any party timely attorney's fees, the validity of the dismissal must be files an objection to the commissioners' award, the determined solely as a matter of law. Lo–Vaca award is vacated and the case proceeds to the Gathering Co. v. Earp, 487 S.W.2d 789, 790 second phase as any other judicial proceeding in the (Tex.Civ.App.-El Paso 1972, no writ). trial court. Id. § 21.018; State v. Blackstock, 879 S.W.2d 125, 126 Tex.App.-Houston [14th Dist.] It is undisputed that all appellees except the (1994), writ denied. two Unserved Owners were properly served with notice of the hearing, and that the commissioners' [1][2] As recently confirmed by the Texas Su- award only involved the 5/12 undivided interests of preme Court, proceedings to condemn private land the appellees who were properly served, leaving for public use are special in character, and a party untouched the undivided 7/12 ownership interests attempting to establish its right to condemn must of the Unserved Owners. Although the Texas Su- show strict compliance with chapter 21 of the preme Court has yet to address the jurisdictional as- Texas Property Code. State v. Bristol Hotel Asset pects of proceeding against less than all owners of Co., 65 S.W.3d 638, 641 (Tex.2002). All parties to undivided property interests in a condemnation pro- the proceeding are entitled to notice of the time and ceeding, we find guidance in cases allowing con- place of the hearing, and the requirement that no- demnation actions to proceed in the absence of all tice of the commissioners' hearing be served on a owners when, as here, the rights of the unserved party is equivalent to the requirement in ordinary owners were not adjudicated or harmed. Note- judicial proceedings that citation be properly served worthy is the Lo–Vaca case wherein the court on a defendant. Id. stated:

In Bristol, the supreme court stated, “Unless The failure of a condemnor to join an owner of an notice has been properly served in accordance with interest in the land renders ineffectual the pro- the statute, the commissioners have no jurisdiction ceedings as to interest of the party not joined. to assess damages or do anything that would de- Such failure, however, should not invalidate the clare a condemnation of the property.” Id. Ap- entire*758 proceedings insofar as the interest of pellees rely on this language to support their con- the parties who are properly designated and made tention that the trial court properly dismissed parties to the proceedings.

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487 S.W.2d at 790 (emphasis added). Had the Named Owners commissioners proceeded to adjudicate the 7/12 un- [4] Nevertheless, appellees further assert that divided interests of the Unserved Owners, a differ- by originally naming Roy M. Hofheinz, Jr. and the ent case would be presented, as Lo–Vaca would re- Trust as two of the owners of undivided interests in cognize the impropriety of adjudicating interests of the property, Metro could not proceed until they property owners not before the court. See also City had been served with notice of the hearing. Citing of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947, Bristol, appellees contend that once an owner is 951 (1953) (holding as void condemnation proceed- identified in a condemnation petition, subject mat- ings involving property rights of parties not prop- ter jurisdiction is not acquired unless that owner is erly served with notice). Because Metro notified the served with notice of the hearing. Implicit in this commissioners and the other parties it would be argument is that Metro could not, after filing its pe- proceeding only against the owners who had been tition, elect to proceed against less than all of the served and no action was taken against the Un- identified owners. Bristol, however lends appellees served Owners, Lo–Vaca supports the commission- no support in this regard. In Bristol, the court was ers' actions regarding the Adjudicated Owners in called upon to determine the requirements for proof absence of the Unserved Owners. of notice of service in a condemnation proceeding, distinguishing the service requirements for return of Similarly, the decision of Elliott v. Joseph, 163 a citation and the return in condemnation proceed- Tex. 71, 351 S.W.2d 879, 884 (1961), is helpful in ings. 65 S.W.3d at 642. The method of securing and its holding that all persons having an interest in the proving proper notice of the hearing, not the entit- property must be made parties in order for the con- ies entitled to notice, was at issue in Bristol, which demning authority to obtain complete title. As the court resolved by holding that returns of service noted, Metro acquired only the property interests of in condemnation proceedings satisfying the stat- the Adjudicated Owners, not title to the entirety, utory requirements are prima facie evidence of the and a second proceeding was initiated to acquire facts recited therein. Bristol does not answer the the interests of the Unserved Owners. The special question before us. commissioners below did not adjudicate the undi- vided property interests of the unserved appellees, We are, however, not entirely without guid- and appellees do not allege they have been harmed ance. In *759Union Fraternal Latino Americana v. by the proceedings below. Appellees do not cite, City of San Antonio, 315 S.W.2d 68, 70 nor have we identified, any controlling authority (Tex.Civ.App.-San Antonio 1958, no writ), con- depriving the court of jurisdiction over condemna- demnation proceedings were instituted against own- tion proceedings when all undivided interest own- ers of certain property, all of whom were served ers have not been served with notice of the hearing, with notice by publication, including the appellant. particularly when there has been no showing that Appellant appeared at the hearing and was awarded the rights of unserved parties were injuriously af- damages. Id. The appellee City of San Anon filed fected. its objection to the award, and at trial, the appellant was found to be the sole owner and was awarded In sum, appellees' arguments for lack of juris- damages. Id. On appeal, the appellant argued the diction based on Metro's failure to serve all owners trial court lacked jurisdiction because there was de- is without merit, and neither the commissioners nor fective service of the hearing notice. Id. The court the trial court were deprived of jurisdiction by of appeals acknowledged the deficient service, but Metro's failure to serve the two Unserved Owners held appellant waived the defect by appearing in under the circumstances of this case. person at the hearing. Id. Moreover, the court held it was immaterial that service on the other owners Subject Matter Jurisdiction—Failure to Serve all

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was defective, stating not serving one or more owners of a particular property does not invalidate jurisdiction as to those The proper service of notice on such other de- owners properly served and before the court, and fendants was not a necessary prerequisite to con- does not defeat the commissioners' authority to as- fer jurisdiction on the court to hear and determine sess damages as to those owners properly before it. the rights of appellant, who effectively waived Appellees' argument would require us to hold that such notice by appearing and by submitting its unless all named owners are served in one condem- case to the court. nation proceeding, special commissioners are unau- thorized to take action and trial courts are without Id. Thus, under Union Fraternal Latino Amer- jurisdiction in chapter 21 proceedings, a position icana, lack of service on the Unserved Owners did we are not inclined to adopt in light of these cases not defeat the commissioners' and court's jurisdic- holding to the contrary. tion to hear and determine the rights of the Adju- dicated Owners. Nothing in the statutory scheme for condemna- tion actions prohibited Metro from electing to pro- Additional guidance is found in City of Hous- ceed against only the Adjudicated Owners at the ton v. Kunze, 153 Tex. 42, 262 S.W.2d 947 (1953), hearing, thereby impliedly abandoning its claims at which recognized the corollary issue that special that point against the Unserved Owners. Metro's commissioners and courts do not acquire jurisdic- failure to serve all of the named owners with notice tion over owners not properly served with notice of of the hearing may have *760 deprived the court of the hearing (and who otherwise do not appear or jurisdiction over the Unserved Owners, but did not waive notice). In Kunze, the special commissioners deprive it of jurisdiction over the Adjudicated Own- found all owners had been served with notice, but ers. that only appellee was entitled to condemnation damages. Id. at 949, 262 S.W.2d 947. The owners Condemnation of Undivided Interests in Property other than appellee filed objections to the award, [6][7][8] Last, appellees argue that regardless but appellee filed a trespass to try title suit against of the procedural and jurisdictional defects, con- the other owners and the appellant City of Houston, demnation of only a portion of undivided interests which the City attempted to enjoin. Id. At 949–50. in property is not authorized by state law. Ap- In upholding denial of the injunction based on the pellees base their argument not on the existence of City's improper service of notice on appellee, the prohibitory law, but on the lack of permissive law. court of appeals held that until an owner is properly While it is true this issue has not been squarely ad- served with notice of the hearing, the commission- dressed by our supreme court, supportive authority ers and court are without jurisdiction or authority to does exist for condemnation of undivided interests. assess damages as to an unserved owner. Id. at 951. Texas has long recognized that a condemnor can Because the appellee had not been served, the City condemn any property interest that can be privately of Houston had no right to enjoin his trespass to try acquired or conveyed. Houston N. Shore R. Co. v. title suit as to his interests in the property. Id. Tyrell, 128 Tex. 248, 98 S.W.2d 786, 793 (1936). See also Lo–Vaca, 487 S.W.2d at 790. Undivided [5] Taken together, these cases support Metro's interests are property rights that can be freely ac- proposition that it need not have served all owners quired and conveyed. See, e.g., Burns v. Goodrich, in one proceeding, and that going forward without 392 S.W.2d 689 (Tex.1965); Whitaker v. Neal, 187 service on the Unserved Owners did not invalidate S.W.2d 147 (Tex.Civ.App.-Texarkana 1945, writ jurisdiction over the owners and their property in- ref'd). Applying these cases in conjunction, we see terests who had been served. Under Union no reason why a portion of undivided interests in Fraternal Latino Americana and Kunze, naming but

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property cannot be the subject of otherwise lawful amson County Appraisal Dist., 925 S.W.2d 659, condemnation proceedings. Appellee fails to cite 661 (Tex.1996). Here, the commissioners' award any authority, and we have found none, which dic- did not adjudicate the Unserved Owners' property tates a different conclusion. interests and the Adjudicated Owners had no claim for enforcing any rights of the Unserved Owners. We find the trial court had jurisdiction over the See Union Fraternal Latino Americana, 315 condemnation proceeding and that the special com- S.W.2d at 70. We need not reach the merits of this missioners were authorized to go forward regarding issue, however, as we have sustained Metro's the 5/12 undivided interests of the appellees who second issue on the basis of jurisdiction and are re- were served with notice. Metro's notice of absence versing the *761 dismissal and remanding the case of service filed prior to the hearing limited the to the trial court. We note that it ultimately makes scope of its intended actions to those parties (and little difference, if any, whether or not appellees their respective property interests) who were served had standing to seek dismissal; our remand of this with notice. The record shows that such pleading case to the trial court returns appellant and ap- was accepted by the special commissioners, as they pellees to their pre-dismissal status, with all owners entered an award in conformity with the notice of and Metro having filed objections to the special absence of service. Although more traditional pro- commissioners' findings. See Blackstock, 879 cedures may have been available, Metro's use of the S.W.2d at 126–27 (stating that upon filing of objec- notice of absence of service to limit the scope of its tions to commissioners' award, award is vacated condemnation action was not procedurally improp- and administrative proceeding converts into normal er. While we are cognizant that multiple condemna- judicial cause in civil court). As this would remain tion proceedings against portions of undivided in- the result whether we sustain one or both of Metro's terests in property may run the risk of potentially issues on appeal, the first issue is moot. See VE inconsistent damages and results, nothing suggests Corp. v. Ernst & Young, 860 S.W.2d 83, 84 this factor alone operates to deprive the court of (Tex.1993) (noting that an appeal is moot when a jurisdiction over the parties and property interests court's actions cannot affect the rights of the who are properly before it. Metro's second issue is parties). Metro's first issue is overruled. sustained. CONCLUSION Standing to Seek Dismissal Appellant's second issue is sustained, the order Metro also challenges the trial court's granting of dismissal and award of attorney's fees is reversed of the dismissal, arguing that none of the appellees and the case is remanded for further trial proceed- had standing to seek dismissal. According to Metro, ings. the Unserved Owners had no standing because their undivided ownership interests were not adjudicated Tex.App.–Houston [14 Dist.],2003. by the special commissioners and the Adjudicated Metropolitan Transit Authority Harris County, Owners were without standing to raise any viola- Texas v. Graham tion of the Unserved Owners' rights. We are 105 S.W.3d 754 without benefit of appellees' response to this argu- ment, as they have not addressed the issue in their END OF DOCUMENT brief.

[9] It is well-established that standing pertains to an individual's justiciable interest in a lawsuit, and a person has standing when an alleged wrong affects him personally. See Nootsie, Ltd. v. Willi-

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[2] Eminent Domain 148 166

Court of Appeals of Texas, 148 Eminent Domain Eastland. 148III Proceedings to Take Property and Assess Compensation PATRICK MEDIA GROUP, INC., Appellant, 148k166 k. Nature and Form of Proceeding. v. Most Cited Cases DALLAS AREA RAPID TRANSIT, Appellee. Eminent Domain 148 178 No. 11–93–246–CV. June 23, 1994. 148 Eminent Domain Rehearing Denied Aug. 4, 1994. 148III Proceedings to Take Property and Assess Compensation Lessee who operated billboard on condemned 148k175 Parties land filed objections to compensation award 148k178 k. Intervention or Substitution. rendered by special commissioners in condemna- Most Cited Cases tion proceedings. The County Court, Dallas Condemnation proceeding before special com- County, Bob Day, J., entered judgment without ad- missioners was administrative proceeding to which dressing lessee's claims. Lessee appealed. The rule authorizing intervention in civil cases did not Court of Appeals, McCloud, C.J., held that: (1) apply, absent objection by either party to special condemnation proceeding was administrative pro- commissioners' award to advance proceeding to ceeding in which lessee could not intervene, absent stage of being case in court. Vernon's Ann.Texas objection to award by party to award; (2) trial court Rules Civ.Proc., Rule 60. had no jurisdiction over objections by lessee who was not party to proceedings or award; and (3) [3] Eminent Domain 148 238(1) Court of Appeals lacked jurisdiction to entertain appeal, absent objections to award by actual parties 148 Eminent Domain to proceedings. 148III Proceedings to Take Property and Assess Compensation Appeal dismissed. 148k225 Assessment by Commissioners, Ap- praisers, or Viewers West Headnotes 148k238 Review by Court 148k238(1) k. Nature and Form of [1] Eminent Domain 148 166 Remedy and Jurisdiction. Most Cited Cases 148 Eminent Domain Trial court in condemnation proceedings has 148III Proceedings to Take Property and Assess appellate jurisdiction limited to parties and issues Compensation involved in administrative proceeding before spe- 148k166 k. Nature and Form of Proceeding. cial commissioners. Most Cited Cases [4] Eminent Domain 148 238(3) Condemnation proceeding is administrative proceeding and only becomes judicial proceeding 148 Eminent Domain or civil case if party files objections to judgment of 148III Proceedings to Take Property and Assess special commissioners. Compensation 148k225 Assessment by Commissioners, Ap-

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praisers, or Viewers nation proceeding was set for a hearing before spe- 148k238 Review by Court cial commissioners on June 22, 1993. 148k238(3) k. Right of Review and Parties. Most Cited Cases On the day of the hearing, DART filed a mo- Trial court had no jurisdiction over lessee's ob- tion to nonsuit Patrick, stating that it chose not to jections to special commissioners' compensation condemn Patrick's interest in the land because the award, in light of fact that lessee had been dis- billboard could remain in place until the end of missed from condemnation proceedings before is- Patrick's license agreement. That same day, the suance of award so that lessee was not party to court granted DART's motion but did not hold a award. hearing on the motion for nonsuit or make an al- lowance for Patrick's attorney's fees and court [5] Eminent Domain 148 256 costs.

148 Eminent Domain On June 24, Patrick moved the court to recon- 148III Proceedings to Take Property and Assess sider its dismissal, complaining that it was dis- Compensation missed without a hearing. The court refused to re- FN1 148k250 Appeal consider the order of dismissal. 148k256 k. Parties. Most Cited Cases Court of Appeals lacked jurisdiction to enter- FN1. The trial court's order, signed on July tain lessee's appeal from judgment of trial court on 12, stated: special commissioner's compensation award, absent The Court, having considered the Mo- objections to award by actual parties to condemna- tion and the arguments of counsel, but tion proceedings; lessee had been dismissed from having refused to consider or allow the condemnation proceedings before special commis- proffered evidence of Patrick Media sioners issued compensation award. Group, Inc. as to its compensable in- *376 Paul C. Isham, Decker, Jones, McMackin, terests, prejudice resulting from the dis- McClane, Hall & Bates, Fort Worth, J. Allen Smith, missal and/or attorneys' fees and costs, is Michael J. Vernone, Settle & Pou, Dallas, for ap- of the opinion that the Motion should be pellant. denied.

David C. Schulze, Dallas Area Rapid Transit, Of- The commissioners filed their compensation fice of General Counsel, Dallas, for appellee. award with the court on July 20. The award neither reflected that Patrick was a party to the proceeding nor awarded Patrick any compensation for its in- Opinion terest in the property. The same day that the award McCLOUD, Chief Justice. was filed, Patrick filed a plea in intervention claim- This is a condemnation suit. We dismiss the ing that its interest in the property would be materi- appeal for want of jurisdiction. ally and adversely affected by the condemnation of the property. Dallas Area Rapid Transit (DART) filed a con- demnation proceeding in county court at law On August 13, Patrick filed objections to the against Harris, Clayton, Schulz, Inc. (Harris), the decision of the commissioners and requested a jury owner of the land. Patrick Media Group, Inc. trial to determine its damages as a result of the con- (Patrick) held a leasehold interest in the land for the demnation. On August 19, the court noted that none operation of a billboard and was added as a defend- of the “parties” objected to the commissioners' ant in DART's first amended petition. The condem-

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FN3 award and rendered judgment granting DART fee tions in county courts, Rule 60 does not apply simple title to the property and awarding Harris to this special statutory proceeding. When Patrick $272,191 as compensation. Patrick perfected this filed its plea in intervention, the special statutory FN2 appeal from the August 19 judgment. proceeding had not reached the stage of a “case in court” as recognized in Rose. FN2. Patrick argues on appeal that the trial court should have conducted a hearing on FN3. TEX.R.CIV.P. 2. the motion for nonsuit under TEX.PROP.CODE ANN. § 21.019(a) [3][4][5] Furthermore, in condemnation pro- (Vernon 1984); that attorney's fees and ceedings, the trial court has appellate jurisdiction court costs should have been awarded un- limited to the parties and issues involved in the ad- der TEX.PROP.CODE ANN. § 21.019(b) ministrative proceeding before the special commis- (Vernon Supp.1994); and that it timely sioners. Board of Regents of the University of Texas filed objections to the commissioners' System v. Puett, 519 S.W.2d 667 award. (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.). Patrick was dismissed from the condemnation pro- Relying on TEX.R.CIV.P. 60, Patrick argues ceeding on June 22 and was not a party to the com- that it became a party for all purposes when it filed missioners' award. The trial court had no jurisdic- its plea in intervention on July 20. We disagree. tion over Patrick's claim; and Patrick's objections to the commissioners' award did not prevent the com- [1] The rule is well established that a condem- missioners' award from becoming final as between nation proceeding is an administrative proceeding DART and Harris, the parties to the condemnation and only becomes a judicial proceeding or civil proceeding. Absent objections to the commission- case when a party files objections to the judgment ers' award by the parties to the condemnation pro- of the special commissioners. State v. Giles, 368 ceeding, we have no jurisdiction to entertain this S.W.2d 943 (Tex.1963); Pearson v. State, 159 Tex. FN4 appeal. 66, 315 S.W.2d 935 (1958). The court in Rose v. State, 497 S.W.2d 444 (Tex.1973), stated: FN4. See Rosenthal v. Ottis, 865 S.W.2d 525, 528 (Tex.App.—Corpus Christi 1993, The nature of this action is of controlling signi- orig. pro.), where the court held that man- ficance. A judgment which a county court renders damus was a proper remedy to compel the upon the basis of an award to which there have trial court to hold a hearing following the been no objections is the judgment of a special dismissal of a condemnation proceeding tribunal. Such a judgment is ministerial in nature and to determine the amount of reasonable and is the judgment of an administrative agency. and necessary attorney's fees and expenses *377 It is not a judgment from which an appeal mandated by Section 21.019(b). See also will lie. Pearson v. State, 159 Tex. 66, 315 Pearson v. State, supra, where the court S.W.2d 935 (1958). It is not a judgment in a civil stated that mandamus would be available suit, because the proceedings did not reach the to correct certain irregularities that occur stage of “a case in court.” Sinclair v. City of Dal- in connection with the special commission- las, 44 S.W.2d 465, 466 (Tex.Civ.App.1931, writ ers' award where no objections to the ref'd). award were filed.

[2] Neither DART nor Harris, the parties to the The appeal is dismissed. July 20 special commissioners' award, filed objec- tions to the award. Although it applies to civil ac- Tex.App.–Eastland,1994.

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Patrick Media Group, Inc. v. Dallas Area Rapid Transit 879 S.W.2d 375

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[2] Mines and Minerals 260 55(5)

Supreme Court of Texas. 260 Mines and Minerals L. A. PICH, Petitioner, 260II Title, Conveyances, and Contracts v. 260II(B) Conveyances in General A. H. LANKFORD et al., Respondents. 260k55 Grants and Reservations of Min- erals and Mining Rights No. A-6165. 260k55(5) k. Kind, Quantity, and Loc- May 15, 1957. ation of Minerals Granted or Reserved. Most Cited Rehearing Denied by June 19, 1957. Cases Where two successive deeds excepted three- Cross-actions to try title to mineral interest in quarters of mineral interest in land, and stated that land, wherein defendant contended that he had ac- such mineral interest had been “heretofore re- quired mineral interest by quitclaim deeds. The served,” and did “not belong to grantors”, fact that District Court, Childress County, Luther Gribble, reservations in prior deeds had been for smaller J., rendered judgment for plaintiffs and defendant fractional interests, did not reduce amounts of in- appealed. The Amarillo Court of Civil Appeals, terest excepted, and an undivided three-quarters in- Seventh Supreme Judicial District, 295 S.W.2d 749, terest in minerals in place was excluded from grants affirmed District Court judgment, and defendant and did not pass to second grantee. brought error. The Supreme Court, Calvert, J., held that where two successive deeds excepted three- [3] Deeds 120 139 quarters of mineral interest in land, and stated that such mineral interests had been ‘heretofore re- 120 Deeds served’ and did ‘not belong to grantors,’ fact that 120III Construction and Operation reservations in prior deeds had been for smaller 120III(D) Exceptions fractional interests, did not reduce amount of in- 120k139 k. Validity of Exceptions. Most terest excepted, and an undivided three-quarters in- Cited Cases terest in mineral in place was excluded from grants The giving of a false reason for an exception and did not pass to second grantee. from a grant does not operate to alter or cut down the interest or estate excepted, nor does it operate to Reversed and remanded. pass the excepted interest or estate to the grantee.

Grawood, J., dissented. [4] Mines and Minerals 260 55(4)

West Headnotes 260 Mines and Minerals 260II Title, Conveyances, and Contracts [1] Mines and Minerals 260 48 260II(B) Conveyances in General 260 Mines and Minerals 260k55 Grants and Reservations of Min- 260II Title, Conveyances, and Contracts erals and Mining Rights 260II(A) Rights and Remedies of Owners 260k55(4) k. Nature of Estate Granted 260k48 k. What Are Minerals and Nature or Reserved. Most Cited Cases of Property in Minerals. Most Cited Cases Where deed excepted from grant three-quarters An interest in minerals in place and interest in of mineral interest and prior deeds had reserved royalty are separate and distinct estates in land. smaller fractional interest, since interest in excess

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of that previously reserved did not pass to grantee On January 26, 1943 Collins Howard and wife and was not outstanding in another, the legal effect conveyed the land to W. J. Sharp and wife, Emma of exception was to leave it to grantor. E. Sharp, by a deed which, following the descrip- tion of the land, contained the following language: *336 **646 Williams, Broughton & Forbis, Chil- ‘Save and Except an undivided three-fourths of the dress, Homer L. Baughman, G. R. Pate, Ft. Worth, oil, gas and other minerals in, on and under said for petitioner. land, which have been heretofore reserved.’

James L. Cutcher, Taylor, Richard D. Bird, Chil- On September 26, 1947 W. J. Sharp and wife dress, for respondents. conveyed all of Section 490 to respondents, A. H. and B. L. Lankford, by a deed which, following the CALVERT, Justice. description of the land, contained the following lan- This case presents question of ownership of guage: ‘Save and Except an undivided three-fourths mineral fee and royalty interests in a tract of 160 of the oil, gas and other minerals in and under the acres of land described as the Southwest one-fourth Southwest Quarter thereof, and an undivided one- (1/4) of Section No. 490, Block H, W. & N. W. Ry. fourth of the minerals in and under the remainder of Co. Survey, Childress County. said survey, which minerals do not belong to the grantors herein.’ Petitioner, L. A. Pich, is the agreed common source of title. On November 15, 1955 Collins Howard and wife quitclaimed to petitioner, Pich, all of their On September 28, 1928 petitioner conveyed the right, title and interest in the three-fourths of the 160 acres of land to F. D. Turner by a deed contain- minerals ‘excepted and reserved’ by them in their ing a reservation of ‘one half of the full 1/8th Oil deed to the **647 Sharps, and on December 12, Royalty, or a 1/16th of all minerals produced on 1955 the Sharps quitclaimed to petitioner all of said land.’ their right, title and interest in the three-fourths of the minerals in and under the 160 acres of land On May 20, 1929 Turner conveyed the land to ‘reserved and excepted’ by them in their deed to the Lewis B. Adams by a deed which contained no re- respondents. servations or exceptions. Respondents were plaintiffs in the trial court. On February 27, 1930 Adams and wife con- Petitioner and Mrs. Fuehr and her husband were de- veyed the land to S. J. Higgs by a deed containing a fendants. The petition on which respondents went reservation to the grantors of ‘one fourth of all roy- to trial contained statutory allegations in trespass to alty, the same being 1/32 of all oil and gas pro- try title to the entire fee title to the 160 acres of duced from said land.’ The one-fourth royalty re- land, with specific allegations that the reservation served by Adams was in due course conveyed by by petitioner in the deed of 1928 was a reservation him to Cecil H. Canfield and by Canfield to his of ‘a one-half (1/2) undivided interest in and to all daughter, Dorothy Canfield Fuehr. of the oil, gas and other minerals in and under said lands' and that the reservations by Adams in the *337 On October 18, 1941 Frank S. Magers, deed of 1930 was a reservation of ‘a one-fourth administrator of the estate of S. J. Higgs, deceased, (1/4) undivided interest in and to all the oil, gas and conveyed all right and title of S. J. Higgs in and to other minerals in and under said lands', which re- the land to Collins Howard by a deed which con- servations, they alleged, conferred no title on the tained no reservations or exceptions. grantors but were illegal and void and constituted clouds on respondents' title which should be re-

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moved and cancelled. In a separate count they al- al court's judgment. 295 S.W.2d 749. Respondents leged that the exception in the deed executed by the did not file an application for writ of errof and the Howards to the Sharps on *338 January 26, 1943 judgment awarding Mrs. Fuehr title to one-fourth did not reserve any interest to the grantors and that (1/4) of the one-eighth (1/8) non-participating ‘the pure intention of the grantors in said deed was roylaty has therefore become final and is not in is- to convey all of the interest in said lands that the sue in this court. grantors owned’; that the reservation created a cloud on petitioners' title which should be removed The real question to be decided is as to the ef- and cancelled. The petition contained no specific fect of the language quoted from the deeds ex- allegations with reference to the exception con- ecuted by the Howards to the Sharps and by the tained in the deed executed to respondents by the Sharps to respondents. Sharps. *339 Petitioner contends that the legal effect of In their answer petitioner and Mrs. Fuehr the language was to except from the grants in the pleaded not guilty and disclaimed as to all interest deeds a three-fourths (3/4) undivided interest in and in the land except as to ‘an undivided three-fourths to the minerals in place and that title to that interest (3/4) interest in and to all of the oil, gas and other never passed to respondents and they never became minerals in, under and that might be produced from the owners thereof; that the fact that a false reason said land.’ By was of cross-action petitioner and may have been given for the exception does not al- Mrs. Fuehr then sought by a statutory trespass to try ter the operative effect thereof. He further contends title action to recover title to and possession of the that since the interest was excluded from the grants undivided three-fourths (3/4) interest in the miner- in **648 the deeds it necessarily remained in the als. To the cross-action respondents had a plea of grantors whose rights, title and interests petitioner not guilty and a general denial. holds.

No evidence other than the instruments hereto- Respondents contend that the deeds must be fore described was tendered or introduced on the construed most strongly against the grantors and so trial. At the conclusion of a trial before the court as to pass the largest estate possible to the grantees, the trial judge adjudged Dorothy Canfield Fuehr to and that when so construed it is apparent that the be the owner of one-fourth (1/4) of the one-eighth Howards and the Sharps did not intend by the lan- (1/8) non-participating royalty, petitioner, L. A. guage in their deeds to reserve unto themselves any Pich, to be the owner of one-half (1/2) of the one- interest or estate in the minerals in place, but, in or- highth (1/8) non-participating royalty, and respond- der to protect themselves on their warranties, inten- ents, A. H. and B. L. Lankford, to be the owners of ded only to except from the grants in the deeds the the fee title to the 160 acres of land, less the royalty one-half (1/2) and one-fourth (1/4) interests in roy- interests adjudged to Mrs. Fuehr and to petitioner. alty which had been theretofore reserved in the deeds executed by petitioner and Adams. Both petitioner and respondents appealed from the judgment, petitioner asserting in the Court of The Court of Civil Appeals agreed with re- Civil Appeals that the tiral court erred in failing to spondents' contention, citing as authority for its adjudge to him the title to three-fourths (3/4) of the conclusion Klein v. Humble Oil & Refining Co., minerals from which a one-fourth (1/4) royalty in- 126 Tex. 450, 86 S.W.2d 1077; Methodist Home v. terest should have been carved and awarded to Mrs. Mays, Tex.Civ.App., 273 S.W.2d 444, writ refused, Fuehr, and respondents asserting that the trial court n.r.e., and Woods v. Sims, 154 Tex. 59, 273 S.W.2d erred in awarding a recovery of any interest to Mrs. 617. We agree with petitioner and disagree with re- Fuehr. The Court of Civil Appeals affirmed the tri- spondents and the Court of Civil Appeals.

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(1) The decisions of this Court have established sold. With respect to the effect of the language used that an interest in minerals in place and an interest in the reservation, the court said: in royalty are separate and distinct estates in land. Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; ‘Here lots 32 and 33 are described as lots sold. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d If the grantor had said, ‘I except all the lots hereto- 166; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617. fore sold,’ and had added nothing more by way of See also Palmer v. Crews, 203 Miss. 806, 35 So.2d description, the reasoning of the defendant would 430, 4 A.L.R.2d 483. It is also well established that be sound. The exception then would cover only an interest or estate in land excepted from a grant is such lots as had in fact been sold. But the plaintiff excluded from the grant and does not pass to the specially enumerates the lots excepted from his grantee. King v. First National Bank of Wichita grant, and describes them by number, the only prac- Falls, 144 Tex. 583, 192 S.W.2d 260, 262, 163 ticable way in which such lots can be described. A.L.R. 1128; Reynolds v. McMan Oil & Gas Co., The false circumstance that they were sold, added Tex.Com.App., 11 S.W.2d 778, 781, motion for re- to the certain**649 description given, must be dis- hearing overruled, 14 S.W.2d 819; 14 Tex.Jur. 958, regarded.' 53 Vt. 693. Deeds, sec. 175. The deed involved in Ambs v. Chicago Ry. (2)(3) There is no patent ambiguity in the Co., supra, conveyed certain land by metes and Howard and Sharp *340 deeds. The deeds do not bounds description, following which were these except from the grants only such roylaty interests or words: ‘with the exception of Lot 6, Block 36, here- interests in the minerals as ‘have heretofore been tofore conveyed to William H. Brown by Louis reserved’ or that ‘do not belong to the grantors Robert and wife.’ The question before the Supreme herein’; they except an undivided three-fourths Court of Minnesota was whether title to such lot (3/4) interest in the minerals in place in plain and passed under the deed. With respect to that question unambiguous language. The quoted phrases are but the court said: ‘The deed clearly shows an intention recitals which purport to state why the exceptions that from the land granted by it there should be ex- are made. The chain of title conclusively negatives cepted a tract which was designated Lot 6, in Block the recitals. It shows they are flase. The giving of 36, and which was further described as having been a false reason for an exception from a grant does previously conveyed to William H. Brown * * *. not operate to alter or cut down the interest or es- Though it was not shown that *341 the lot had in tate excepted, nor does it operate to pass the excep- fact been conveyed to William H. Brown, or even if ted interest or estate to the grantee. Roberts v. it had been shown that such was not the fact, the Robertson, 53 Vt. 690, 38 Am.Rep. 710; Ambs v. maxim falsa demonstratio non nocet would apply, Chicago, St. P., M. & O. Ry. Co., 44 Minn. 266, 46 adn that fact would be immaterial, the excepted lot N.W. 321; Georgia Vitrified Brick & Clay Co. v. being otherwise described with sufficient cer- Georgia R. & Banking Co., 148 Ga. 650, 98 S.E. tainty.’ 46 N.W. 321-322. 77; Oldham v. Fortner, 221 Miss. 732, 74 So.2d Gibson v. Sellars, supra, (252 S.W.2d 912) in- 824; Gibson v. Sellars, Ky., 252 S.W.2d 911, 37 volved a deed of conveyance of the fee simple title A.L.R.2d 1435. to certain lands, the deed containing the following In Roberts v. Robertson, supra, the Vermont exception: ‘It is expressly understood and agreed by court dealt with a deed conveying specifically de- the parties that the coal and mineral rights underly- scribed land and containing the following clause: ing said tract of land have been heretofore sold by ‘Said J. C. Roberts reserving lots sold, Nos. 1, 2, 3, the First Party and are not intended to be conveyed * * * 32, 33.’ Lots 32 and 33 had not, in fact, been by this deed and are expressly excluded herefrom.’ The record reflects that the coal had been thereto-

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fore sold but that the other minerals underlying said property previously used for such thoroughfare did lands had not been, and the contention was made not pass to the grantee. that the other minerals were not excepted. The con- tention was overruled, the court saying: ‘The recita- The exceptions in the Howard and Sharp deeds tion of erroneous circumstances or the reason for an cannot by construction be made to deal with a roy- exception does not limit the exception. The court is alty interest when they so plainly deal with an in- not concerned with reasons for the exception, but terest in minerals in place. Only by reformation rather, what is the exception. We are not required to may they **650 be made to deal with the outstand- determine why Lockie Gibson excepted certain sub- ing royalty interests and, as our analysis of the stances. Our concern is, what substances did she pleadings shows, there were no allegations of fraud, except.’ After quoting from certain authorities the accident or mistake and no prayer for reforma- court continued: ‘We, therefore, conclude that the tion. Klein v. Humble Oil & Refining Co., supra, recitation in the exception before us that the coal and Methodist Home v. Mays, supra, are not con- and mineral rights had heretofore been sold was at trolling. In each of those cases the deed being con- most only an erroneous recitation of fact and did strued reserved and excepted from the grant an es- not limit or restrict the effect of the exception.’ tate in land identical with the one theretofore re- served or conveyed by a prior grantor. Woods v. The rule drawn from the foregoing cases by the Sims, supra, does not bear on the point. The undi- writer of the text in Corpus Juris Secundum (26 vided three-fourths (3/4) interest in the minerals in C.J.S. Deeds s 139, p. 1008) is as follows: place was excluded from the grants in the Howard and Sharp deeds and title thereto did not pass to re- ‘Further, when certain tracts excepted are spe- spondents. cifically described, and it is further recited that they have been previously sold or conveyed, the excep- Since the title to the three-fourths (3/4) interest tion will be good, although the recital is false since in the minerals in place never passed to respond- it may be rejected, or although the prior conveyance ents, we have next to decide whether the trial court did not effectuate a transfer of the property de- and Court of Civil Appeals erred in failing to ad- scribed therein, or even though the property previ- judge title thereto to be in petitioner. ously conveyed reverts to the grantor by reason of the grantee in the prior conveyance ceasing to use it (4) Petitioner acquired by quitclaim deed from for the purpose prescribed in the deed.’ the Howards whatever right, title or interest they then owned. The language heretofore quoted from See also 16 Am.Jur. 619, Deeds, sec. 318. the deed from Howard to Sharp did not reserve the interest in the minerals to Howard; it only excepted The only Texas case which appears to bear on it from the grant. However, since the interest did the question is Umscheid v. Scholz, 84 Tex. 265, 16 not pass to the grantee and was not outstanding in S.W. 1065, 1066. In that case *342 the deed in- another the legal effect of the language excepting it volved contained the following language: ‘it being from the grant was to leave it in the grantor, understood that the public thoroughfare formerly Howard. The words ‘exception’ and ‘reservation’ existing along the edge of the river at this point is are not strictly synonymous, Donnell v. Otts, not intended to be conveyed by these presents, the Tex.Civ.App., 230 S.W. 864, 865, no writ history; corporation of the City of Bexar having the right to 14-B Tex.Jur. 714, Deeds, sec. 247, but they are of- open said thoroughfare when it sees fit.’ There was ten used interchangeably. King v. First National no evidence that the City had the right to open the Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d thoroughfare, but this Court held that the exception 260, 262, 163 A.L.R. 1128; Reynolds v. McMan was not affected by the false recitation and that the Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778;

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Klein v. Humble Oil & Refining Co., Tex.Civ.App., made (according to the Court) only for the purpose 67 S.W.2d 911, 915, affirmed*343 126 Tex. 450, of limiting the granting clause used by Klein, which 86 S.W.2d 1077. In the case last cited it is said: **651 otherwise covered the full title to the ‘The primary distinction between a reservation and premises, and thus avoiding Klein becoming liable exception is that a reservation must always be in fa- on a warranty of the full title. The Court reasoned, vor of and for the benefit of the grantor, whereas, with our approval, that if the ‘exception’ were con- an exception is a mere exclusion from the grant, in strued to hold out any interest other than that favor of the grantor only to the extent that such in- already reserved *344 by the prior grantor (Stein), terest as is excepted may then be vested in the Klein's grant to Baker would purport to convey to grantor and not outstanding in another.’ (Emphasis Baker more than Baker actually got. So the Court ours.) proceeded, with our approval, to construe Klein's purported ‘exception’ as referring only to the earli- Petitioner, L. A. Pich, is adjudged to be the er reservation. owner of an undivided three-fourths (3/4) interest in the minerals in, on and under the 160 acres of In the instant case, according to our holding, land. Respondents are adjudged to be the owners of the grantor Howard, who corresponds to Klein, will the surface and an undivided one-fourth (1/4) in- have purported to convey with warranty that which terest in the minerals in, on and under the 160 acres he did not have, to wit, a free and clear 1/4 of the of land. Mrs. Dorothy Canfield Fuehr is adjudged minerals. Any 1/4 ‘mineral interest’ purportedly to be the owner of an undivided one-fourth (1/4) of conveyed was subject to the reserved royalty, so the one-eighth (1/8) non-participating royalty of all was not free and clear. A 1/4 mineral estate subject oil, gas and other minerals in, on and under and to an outstanding royalty interest is worth less to which may be produced from said land. Ordinarily the owner than it would be if not so burdened. So the royalty interest adjudged to Mrs. Fuehr would the grantor, Howard, will have breached his war- be carved proportionately from the two mineral ranty, if we hold that the ‘exception’ was an excep- ownerships but petitioner has asserted in his appeal tion of something other than the royalty previously brief that it should be carved entirely from the min- reserved. eral interest adjudged to petitioner and it will be so adjudged. In support of its holding, the Court in the Klein case reasoned further that the use by the grantor, The judgments of the trial court and Court of Klein, of the very word ‘excepted’, as distinguished Civil Appeals are reversed and the cause is re- from ‘reserved’, tended to show that the ‘exception’ manded to the trial court for the entry of judgment might well be for the purpose which the Court held in accordance with this opinion. him to have had in mind, and in this connection it used the very words now quoted in the instant case GARWOOD, Justice (dissenting). as apparently conducing to a contrary view. In the In that portion of the judgment and opinion of Klein case, incidentally, the grantor, Klein, at the the Court of Civil Appeals in the Klein case, which time he executed the deed, owned all interests in was expressly affirmed and approved by this Court the land except the 1/8 outstanding interest reserved ( 67 S.W.2d 911, 913-917; 126 Tex. 450, 86 by his grantor (Stein) even as Howard did in the in- S.W.2d 1077), the former Court held a purported stant case at the time of his conveyance to Sharp. exception of ‘1/8 of all mineral rights' in a deed from one Klein to one Baker to be, not truly an ex- The Court in the Klein case also made refer- ception, but merely a reference back to a reserva- ence to all the language of the ‘exception’ in the tion of ‘one-eighth (1/8) of all mineral rights' made Klein deed and the language in the previous Stein by a prior grantor (Stein), the ‘exception’ being reservation.

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It is also of interest to note that the Supreme may validly convey one fraction of the mineral es- Court, in dealing with the other question in the tate and reserve or except a different fraction as Klein case, that is, the controversy between Baker royalty, does not, of course, require that language, as mineral lessor and Humble as assignee of the such as in the Howard ‘exception’ clause, shall ne- lease, held that, under the circumstances, the Stein cessarily and always mean something other than a reservation above mentioned was actually a royalty royalty. None of the cases cited in the main opin- despite its language ‘one-eighth (1/8) of all mineral ion, as I read them, so hold. As above pointed out, rights in and under’ the land. we actually held in the Klein case that, under the circumstances of that case, words, such as we now As I see it, we cannot charge off the Klein case hold to mean a ‘mineral interest’ beyond possibility by saying that in the instant case, the ‘exception’ of a different construction, actually meant a royalty was clearly one of a 3/4 ‘mineral interest’ in the interest. technical sense of that term and that, such an in- terest being a different kind of estate from the *345 Under the circumstances of this case, it seems royalty estate outstanding, the ‘exception’ could not to me that we may also properly consider the recital possibly be taken to refer to the outstanding roy- in the Howard deed ‘which have been heretofore re- alty. The theory of the Klein holding is that the served.’ The Court will, I'm sure, concede that the whole Klein deed, as well as other things, might be recital is not false, unless we assume that the pre- looked to in order to determine what the ceding words, ‘three-fourths of the oil, gas and oth- ‘exception’ meant. And I think that same theory er minerals in, on and under’, necessarily exclude a may be extended to an enquiry in the instant case as reserved royalty interest, considering the deed as a to whether the words, ‘SAVE AND EXCEPT an whole. Roberts v. Robertson, 53 Vt. 690, and the undivided three-fourths of the oil, gas and other other decisions cited in connection with the matter minerals in, on and under said land, which have of false recitals, are relevant only on that assump- been heretofore reserved’, are necessarily to be tion, which I do not think we should indulge. If the construed, under the particular circumstances, as a preceding*346 language is at all subject to con- mineral interest in the sense that excludes a royalty struction, as I think it is in the light of the Klein interest. case, the reference, ‘heretofore reserved’, can be properly considered. Obviously a royalty is, in a perfectly normal and legitimate sense, a mineral interest, and not On the whole, the Klein case appears to me to only that, but an interest in minerals in place. It be controlling and to require a different result than may be created in advance of a lease and even be we have reached. the subject of ad valorem taxes as real estate before the owner of it receives any proceeds from it. The TEX. 1957. fraction in which it is expressed may be, and often Pich v. Lankford is, considered as that particular fraction of the min- 157 Tex. 335, 302 S.W.2d 645 erals, although the latter may be still ‘in place’. **652 Indeed, in the instant case, one of the re- END OF DOCUMENT served royalties is expressed both in terms of ‘royalty’ and in terms of the same fraction ‘of all minerals'.

The fact that there is a well recognized and im- portant difference between the character of the two estates, and that, in the same instrument, a grantor

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30k389(2) k. Form and Contents, Affi- davit or Oath. Most Cited Cases Supreme Court of Texas. Declaration that substantially complies with Rodney Wayne SMITH, Relator statute permitting inmates to file unsworn declara- v. tions that follow prescribed form is proper substi- The Honorable Lamar McCORKLE, Judge, the tute for affidavit of inability to pay costs of appeal. Honorable Scott Brister, Judge, and Katherine Tyra, V.T.C.A., Civil Practice & Remedies Code § District Clerk, Respondents. 132.001; Rules App.Proc., Rule 40(a)(3).

No. 94–1199. [3] Mandamus 250 57(1) March 30, 1995. 250 Mandamus Inmate petitioned for writ of mandamus, after 250II Subjects and Purposes of Relief contest to his affidavit of inability to pay costs of 250II(A) Acts and Proceedings of Courts, appeal was sustained. The Supreme Court held that Judges, and Judicial Officers inmate's declaration complied with statute permit- 250k57 Proceedings for Review ting inmates to file unsworn declarations and was 250k57(1) k. In General. Most Cited proper substitute for affidavit of inability to pay. Cases Mandamus is appropriate remedy when contest Writ conditionally issued. to affidavit of inability to pay costs of appeal is im- West Headnotes properly sustained. Rules App.Proc., Rule 40(a)(3).

[1] Appeal and Error 30 389(4) *692 Rodney Wayne Smith, Rosharon, pro se.

30 Appeal and Error Frank E. Sanders, Glen Van Slyke, and Mike 30VII Transfer of Cause Driscoll, Houston, for respondents. 30VII(C) Payment of Fees or Costs, and Bonds or Other Securities ON PETITION FOR WRIT OF MANDAMUS 30k389 Proceeding in Forma Pauperis PER CURIAM. 30k389(4) k. Truth of Affidavit or Rodney Wayne Smith, an inmate in the Texas Oath. Most Cited Cases Department of Corrections, filed suit in Harris For purposes of rule that in absence of written County against administrators of the Harris County order sustaining contest to affidavit of inability to Hospital District. The trial court granted the de- pay costs of appeal allegations of affidavit are taken fendants' motion for summary judgment, and Smith to be true, docket entry does not constitute “written filed a timely notice of appeal and affidavit of inab- order.” Rules App.Proc., Rule 40(a)(3). ility to pay costs. The Harris County District Clerk contested Smith's request to proceed in forma pau- [2] Appeal and Error 30 389(2) peris, alleging that Smith was not too poor to pay 30 Appeal and Error costs and that Smith had “failed to file an Affidavit 30VII Transfer of Cause as required by Rule 49(3)” of the Texas Rules of FN1 30VII(C) Payment of Fees or Costs, and Appellate Procedure. After giving notice to Bonds or Other Securities Smith, the trial court held a hearing and orally sus- 30k389 Proceeding in Forma Pauperis tained the contest to Smith's affidavit. No written order was entered in the record, although the docket

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entries reflect that Smith's motion was “denied as END OF DOCUMENT presented.” After unsuccessfully seeking manda- mus in the Court of Appeals, Smith requested man- damus in this Court.

FN1. There is no Rule 49(3) in the Texas Rules of Appellate Procedure. We assume that the clerk meant Rule 40(a)(3), which governs affidavits of inability to pay.

[1] In the absence of a written order sustaining a contest, the allegations of the affidavit are taken to be true. See TEX.R.APP.P. 40(a)(3); Ranier v. Brown, 623 S.W.2d 682, 685 (Tex.App.—Houston [1st Dist.] 1981 orig. proceeding). A docket entry does not constitute a written order. See McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex.1980). Taken as true, the allegations in Smith's affidavit conclus- ively demonstrate his inability to pay.

[2] We note that the contest challenges Smith's failure to submit a sworn affidavit. However, sec- tion 132.001 of the Texas Civil Practice and Rem- edies Code permits inmates to file unsworn declara- tions that follow a prescribed form. A declaration that substantially complies with the statute is a proper substitute for an affidavit of inability to pay. See Thomas v. Pankey, 837 S.W.2d 826, 830 (Tex.App.—Tyler 1992, no writ). Smith's *693 de- claration complied in every respect with section 132.001.

[3] Mandamus is the appropriate remedy when a contest to an affidavit of inability to pay is im- properly sustained. Allred v. Lowry, 597 S.W.2d 353, 354 n. 2 (Tex.1980). Pursuant to Texas Rule of Appellate Procedure 122, a majority of this Court, without hearing oral argument, directs that the trial court enter an order overruling the contest to Smith's affidavit of inability to pay costs. The writ will issue only if the trial court fails to comply.

Tex.,1995. Smith v. McCorkle 895 S.W.2d 692, 38 Tex. Sup. Ct. J. 462

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Motions 267 56(1)

Court of Appeals of Texas, 267 Motions Corpus Christi. 267k56 Entry or Filing of Orders 267k56(1) k. In General. Most Cited Cases STATE FARM INSURANCE COMPANY, Appel- All orders must be entered of record to be ef- lant, fective and entries made in judge's docket are not v. accepted as substitute for that record; order must be Alice PULTS, Appellee. reduced to writing, signed by trial court, and entered in record. No. 13–91–316–CV. March 4, 1993. [2] Motions 267 56(1) In bad-faith insurance case, the 92nd District 267 Motions Court, Hidalgo County, Homer Salinas, J., imposed 267k56 Entry or Filing of Orders discovery sanctions against insurer, and sub- 267k56(1) k. In General. Most Cited Cases sequently entered judgment from which insurer ap- Order pronounced in open court is considered pealed. The Court of Appeals, Seerden, J., held “rendered” when it is officially announced and is that: (1) court order requiring insurer to produce valid from that time, making formal entry only min- documents was not effective, precluding imposition isterial act. of sanctions for violation, as order had not been an- nounced in open court, issued in writing or filed in [3] Pretrial Procedure 307A 412 papers of cause prior to sanctions hearing, and (2) “death penalty” sanctions striking insurer's wit- 307A Pretrial Procedure nesses and pleadings for insurer's alleged wrongful 307AII Depositions and Discovery and improper seeking of continuance of trial date 307AII(E) Production of Documents and and violation of court's open court ruling freezing Things and Entry on Land discovery were unwarranted. 307AII(E)4 Proceedings 307Ak412 k. Order. Most Cited Cases Reversed and remanded. Court order requiring party to produce docu- ments was not effective, precluding imposition of West Headnotes sanctions for violation of order, as order had not been announced in open court, issued in writing or [1] Motions 267 51 filed in papers of cause prior to sanctions hearing; it 267 Motions was not enough that court employee had noted 267k50 Form and Requisites of Orders court's ruling on party's motion for protective order 267k51 k. In General. Most Cited Cases on docket sheet and that court had read those entries into record at sanctions hearing. Motions 267 55 [4] Appeal and Error 30 863 267 Motions 267k50 Form and Requisites of Orders 30 Appeal and Error 267k55 k. Direction to Enter or Signature. 30XVI Review Most Cited Cases 30XVI(A) Scope, Standards, and Extent, in General

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30k862 Extent of Review Dependent on fully promote compliance. Vernon's Ann.Texas Nature of Decision Appealed from Rules Civ.Proc., Rule 215. 30k863 k. In General. Most Cited Cases [7] Pretrial Procedure 307A 44.1 In determining whether sanctions imposed for 307A Pretrial Procedure discovery abuse are just, Court of Appeals determ- 307AII Depositions and Discovery ines whether direct relationship exists between of- 307AII(A) Discovery in General fensive conduct and sanction imposed, and whether 307Ak44 Failure to Disclose; Sanctions sanction is excessive. Vernon's Ann.Texas Rules 307Ak44.1 k. In General. Most Cited Civ.Proc., Rule 215, subd. 3. Cases [5] Pretrial Procedure 307A 44.1 “Death penalty” sanctions striking party's wit- nesses and pleadings for party's alleged wrongful 307A Pretrial Procedure and improper seeking of continuance of trial date 307AII Depositions and Discovery and violation of court's open court ruling freezing 307AII(A) Discovery in General discovery were unwarranted; record did not indic- 307Ak44 Failure to Disclose; Sanctions ate that trial court considered imposition of lesser 307Ak44.1 k. In General. Most Cited sanctions or whether lesser sanctions would have Cases promoted compliance. Vernon's Ann.Texas Rules Sanctions imposed for discovery abuse should Civ.Proc., Rule 215. be only as severe as necessary to satisfy its legitim- ate purpose. Vernon's Ann.Texas Rules Civ.Proc., *692 John Milano, Jr., Richard J. Reynolds, III, Rule 215. Portia J. Bott, Thornton, Summers, Biechlin & Dunham, San Antonio, Robert L. Guerra, Thornton, [6] Pretrial Procedure 307A 44.1 Summers, Biechlin & Dunham, McAllen, Anthony B. James, Willette & James, Brownsville, for appel- 307A Pretrial Procedure lant. 307AII Depositions and Discovery 307AII(A) Discovery in General Ezequiel Reyna, Jr., Law Office of Ezequiel Reyna, 307Ak44 Failure to Disclose; Sanctions Jr., Weslaco, Jose E. Garcia, Garcia & Ramirez, 307Ak44.1 k. In General. Most Cited Roger Reed, Victor M. Carrera, Munoz, Hockema Cases & Reed, McAllen, for appellee.

Pretrial Procedure 307A 45 Before SEERDEN, KENNEDY, and FEDERICO 307A Pretrial Procedure G. HINOJOSA, Jr., JJ. 307AII Depositions and Discovery 307AII(A) Discovery in General OPINION 307Ak44 Failure to Disclose; Sanctions SEERDEN, Justice. 307Ak45 k. Facts Taken as Established Appellant, State Farm Insurance Company, ap- or Denial Precluded; Preclusion of Evidence or peals from the trial court's judgment in this bad Witness. Most Cited Cases faith insurance case. By eleven points of error, Before imposing sanctions for discovery abuse, State Farm complains generally of the impropriety including exclusion of essential evidence and strik- of discovery sanctions imposed prior to trial, as ing of pleadings, court must consider availability of well as the sufficiency of evidence, evidentiary rul- less stringent sanctions and whether they would ings, and excessive awards at both the bench trial

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and the jury trial. We reverse and remand. (Tex.1969); UMC, Inc. v. Arthur Bros., Inc., 626 S.W.2d 819, 820 (Tex.App.—Corpus Christi 1981), Because of alleged violations of its rulings re- writ ref'd n.r.e., 647 S.W.2d 244 (Tex.1982). garding discovery, the trial court imposed discovery sanctions striking appellant's witnesses and plead- [3] Both parties were notified by telephone of ings. The order specifically stated that appellant the court's October 17, 1989, ruling on appellant's failed to comply with 1) the court order concerning Motion for Protective Order. Although court em- the production of documents and 2) the court's rul- ployees noted the rulings on the docket sheet and ing made in open court freezing discovery. After a the court read these entries into the record at the bench trial, the court found appellant liable for all sanctions hearing held immediately prior to trial on causes of action pleaded, and awarded liquidated January 29, 1990, the order had not been announced damages and attorney's fees. A separate trial on un- in open court, issued in writing or filed in the pa- liquidated damages resulted in a jury award of actu- pers of the cause prior to that time. The court's in- al and punitive damages. terlocutory order stated that sanctions were im- posed, in part, because appellant failed to comply By point of error one, appellant contends the with the court order requiring appellant to produce trial court abused its discretion in granting documents. plaintiff's motion for sanctions and striking defend- ant's answer and witnesses because defendant did Because there was no effective order requiring not violate a valid order concerning the production production of documents when the court imposed of documents as alleged by plaintiff. Pults contends sanctions, we conclude that the court erred in grant- the trial court properly imposed sanctions against ing the Motion for Sanctions based on appellant's appellant for failing to produce documents in re- violation of that purported order. sponse to a valid order. Additionally, appellant urges that “death pen- [1] The threshold question on appeal is whether alty” sanctions are inappropriate and too harsh un- a telephonic notice of the October *693 17, 1989, der the facts of this case, and contends that the con- ruling was an effective order. Since 1923, Texas duct involved was not outrageous, willfully dis- courts have consistently enforced the following obedient, or done in bad faith. Pults urges that this general rule: All orders must be entered of record to case reveals a calculated pattern of discovery abuse be effective. Ex parte Rains, 113 Tex. 428, 257 by appellant, which fully merits the sanctions S.W. 217, 220 (1923). Entries made in a judge's chosen by the trial court. Further, Pults urges that docket are not accepted as a substitute for that re- appellant's unfair tactical use of a motion for con- cord. Hamilton v. Empire Gas & Fuel Co., 134 Tex. tinuance to gain an advantage at trial clearly consti- 377, 110 S.W.2d 561, 566 (Tex.Comm'n App.1937, tutes a “non-specific” discovery abuse for which opinion adopted). The order must be reduced to sanctions may be imposed. See Tex.R.Civ.P. 215(3) writing, signed by the trial court, and entered in the ; Plorin v. Bedrock Foundation & House Leveling record. Utilities Pipeline Co. v. American Petrofina Co., 755 S.W.2d 490, 491 (Tex.App.—Dallas 1988, Marketing, 760 S.W.2d 719, 723 writ denied). (Tex.App.—Dallas 1988, no writ). [4] Rule 215 authorizes the imposition of ap- [2] One exception to the general rule exists. An propriate sanctions for discovery abuse. order pronounced in open court is considered Tex.R.Civ.P. 215; Braden v. Downey, 811 S.W.2d “rendered” when it is officially announced and is 922, 928 (Tex.1991); Parras v. McLelland, 846 valid from that time, making formal entry only a S.W.2d 44, 47–48 (Tex.App.—Corpus Christi ministerial act. Dunn v. Dunn, 439 S.W.2d 830, 832 1992, writ requested). We follow a two part stand-

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ard for determining whether imposed sanctions are Quash the Deposition[s]. Before trial on January just. TransAmerican Natural Gas Corp. v. Powell, 30th, the court imposed sanctions. 811 S.W.2d 913, 917 (Tex.1991). A direct relation- ship must exist between the offensive conduct and We conclude that death penalty sanctions for the sanction imposed, and it must not be excessive. discovery abuse, if any, were unwarranted. The re- Parras, 846 S.W.2d at 47–48 (citing TransAmeric- cord does not indicate that the trial court considered an, 811 S.W.2d at 917). the imposition of lesser sanctions or whether a less- er sanction would have promoted compliance. The [5][6] Under the second prong of the test, the extreme sanctions imposed fail to meet TransAmer- sanctions should be only as severe as necessary to ican's second prong. We sustain appellant's point of satisfy its legitimate purpose. Id. The court must error one. consider less stringent sanctions and whether they would fully promote compliance. Id. Further, be- Due to our disposition of the first point of er- fore imposing sanctions, including exclusion of es- ror, we find it unnecessary to discuss appellant's re- sential evidence and the striking of pleadings, the maining points. See Tex.R.App.P. 90(a). court must consider the availability of less stringent The case is reversed and remanded. sanctions and whether they would fully promote compliance. TransAmerican, 811 S.W.2d at 917; Tex.App.–Corpus Christi,1993. see Braden, 811 S.W.2d at 929. State Farm Ins. Co. v. Pults 850 S.W.2d 691 The record reveals discovery delays on both sides. Motions were filed and hearings requested. END OF DOCUMENT When scheduled, hearings were often rescheduled or passed at the request of either or both parties, or the court. The same is true of the trial dates. Be- cause of the informal nature of the discovery in this case, the record is vague.

*694 [7] The trial court based its sanctions, in part, on appellant's wrongful and improper seeking of a continuance of the trial date and its violation of the court's open court ruling freezing discovery. On January 15th, the scheduled trial date, the court heard and granted appellant's Motion for Continu- ance. However, for purposes of discovery, the court stated that the trial commenced January 15th. The court ordered all discovery frozen. After the hear- ing, appellant re-issued notices for the taking of de- positions in New York and took one of the three re- noticed depositions. Appellant argues that the tak- ing of this trial deposition, originally scheduled for October, 1988, was not a violation of the trial court's freeze on discovery.

On January 29th, the court heard the Motion to Strike and Motion for Protection and Notice to

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148III Proceedings to Take Property and Assess Compensation Supreme Court of Texas. 148k167 Statutory Provisions and Remedies The STATE of Texas, Petitioner, 148k167(4) k. Strict compliance with stat- v. utory requirements. Most Cited Cases BRISTOL HOTEL ASSET COMPANY, Nomura Proceedings to condemn land are special in Asset Capital Corporation, and Comptroller of Pub- character, and the party attempting to establish its lic Accounts, Respondents. right to condemn must show strict compliance with the law authorizing private property to be taken for No. 00–1146. public use. Argued Oct. 10, 2001. Nov. 29, 2001. [2] Eminent Domain 148 231 As Corrected on Denial of Rehearing Feb. 14, 2002. 148 Eminent Domain 148III Proceedings to Take Property and Assess State brought condemnation proceedings Compensation against hotel. The Probate Court, Bexar County, 148k225 Assessment by Commissioners, Ap- Polly Jackson Spencer, J., dismissed on basis that praisers, or Viewers hotel had not been properly served notice of com- 148k231 k. Conduct of proceedings in missioners' hearing, and state appealed. The San general. Most Cited Cases Antonio Court of Appeals, 30 S.W.3d 418, af- Unless notice of the commissioners' hearing firmed. State petitioned for review. The Supreme has been properly served in accordance with the Court, Enoch, J., held that properly executed return condemnation statute, the commissioners have no of service that strictly complied with statutory re- jurisdiction to assess damages or do anything that quirements was prima facie evidence that condem- would declare a condemnation of the property. nee had notice of the proceedings. V.T.C.A., Property Code § 21.015(a).

Reversed and remanded. [3] Eminent Domain 148 231

Baker, J., dissented and filed opinion in which 148 Eminent Domain Hankinson and Rodriguez, JJ., joined. 148III Proceedings to Take Property and Assess Compensation West Headnotes 148k225 Assessment by Commissioners, Ap- [1] Eminent Domain 148 166 praisers, or Viewers 148k231 k. Conduct of proceedings in 148 Eminent Domain general. Most Cited Cases 148III Proceedings to Take Property and Assess Return of service of notice of commissioners' Compensation hearing in condemnation proceedings was prima 148k166 k. Nature and form of proceeding. facie evidence that condemnee was served in com- Most Cited Cases pliance with condemnation statute, even though condemnee argued that proof by live testimony of Eminent Domain 148 167(4) person serving notice was required; return of ser- vice was completed in strict compliance with stat- 148 Eminent Domain utory requirements, there was no reason to distin-

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guish service of notice in condemnation proceeding turn of service of notice in administrative condem- from service of notice in judicial proceeding where nation proceedings that satisfies the statutory re- return of service is prima facie evidence of notice, quirements is prima facie evidence of the facts re- and requirement that person serving notice be com- cited therein. Thus, the court of appeals erred in af- petent to testify did not imply that live testimony firming the trial court's judgment dismissing this FN1 was necessary method to prove service. V.T.C.A., case. We therefore reverse the court of appeals' Property Code § 21.016. judgment and remand this case to the trial court for further proceedings consistent with this opinion. [4] Eminent Domain 148 231 FN1. 30 S.W.3d 418, 420–21. 148 Eminent Domain 148III Proceedings to Take Property and Assess In 1997, the State began condemnation pro- Compensation ceedings against Bristol Hotel Asset Company and 148k225 Assessment by Commissioners, Ap- others, seeking to acquire a ten-foot wide strip of praisers, or Viewers land for a road project. On March 25, 1998, special 148k231 k. Conduct of proceedings in commissioners appointed by the trial court held a general. Most Cited Cases hearing to determine the damages resulting from It is the state's burden to prove notice of the the condemnation. More than eleven days before commissioners' hearing in compliance with the con- the hearing, the commissioners issued notice to demnation statute in order to establish the commis- each party of the date, time and place for the hear- FN2 sioners' jurisdiction. ing, as required by the Property Code. The re- turn of service stated: *638 Jeffrey S. Boyd, Ronda Leigh Neff, Cavitt Wendlandt, Office of Atty. Gen., John Cornyn, FN2. TEX. PROP.CODE § 21.016(b). Atty. Gen., Andy Taylor, Locke Liddell & Sapp, Grady Click, Office of Atty. Gen., Howard G. The (attached) Notice came to my hand on the Baldwin, Deputy Atty. Gen., Susan Desmarais 17th day of February, 1998, at 10 o'clock A.M., Bonnen, Office of Atty. Gen., Austin, for petition- and I served it at 11:25 o'clock A.M. on the 26th er. day of February, 1998, at 14295 Midway Rd., Dallas, TX 75244 by delivering a copy of the *639 John N. McClish, Womack & McClish, Aus- same, by ______ to J. Peter Kline, President, tin, Linda J. McKinnis, CT Corp. Systems, Dallas, Agent for Service for Bristol Hotel Asset Com- for respondents. pany, Fee Owner, together with a copy of the First Amended Petition attached thereto.

Justice ENOCH delivered the opinion of the Court, I am a person competent to testify. in which Chief Justice PHILLIPS, Justice HECHT, Justice OWEN, Justice O'NEILL, and Justice JEF- The return was signed and sworn to before a FERSON join. notary public by Susan Kelly, a Texas Department The issue in this case is whether an executed of Transportation employee. return of service filed with the special commission- ers in administrative condemnation proceedings is Bristol did not appear at the commissioners' evidence that notice of the hearing before the spe- hearing, although Bristol acknowledges being cial commissioners was properly served. We con- aware of the hearing several days before it took clude that, like a return of service of a citation or a place. After taking evidence, the commissioners certificate of service in judicial proceedings, a re- awarded Bristol $196,674. Thereafter, Bristol filed objections to the award and a verified plea to the

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FN5 jurisdiction in the trial court. Bristol's plea to the provement District No. 1 for the proposition jurisdiction alleged that it had not been properly that the presumption of proper service that attaches served with notice of the commissioners' hearing, to a return of service of citation in a judicial pro- and that the State failed to engage in good faith ne- ceeding does not attach to a return in the context of FN6 gotiations. service of notice of a commissioners' hearing. Rather, the court stated, the condemnor must prove A hearing on Bristol's plea to the jurisdiction proper service through the testimony of the person was set for April 20, 1999. On April 16, the State FN7 effecting service. Further determining that the requested a continuance. After the parties agreed trial court did not err when it excluded Kelly's testi- that all discovery responses would be “frozen” and mony, the court of appeals affirmed the trial court's no new witnesses would be designated, the trial judgment. court reset the hearing for May 24. FN3. 30 S.W.3d at 420–21. At the hearing, the State offered the executed return of service from the commissioners' file as FN4. 627 S.W.2d 734, 737 proof that Bristol had been properly served with no- (Tex.App.—Houston [1st Dist.] 1981, writ tice of the commissioners' hearing. The trial court dism'd). sustained Bristol's objection to the notice as hearsay. The State then attempted to call Susan FN5. 574 S.W.2d 208, 210–12 Kelly to testify to the facts contained in the return. (Tex.Civ.App.—Houston [1st Dist.] 1978, Bristol objected to Kelly's testimony because the no writ). State had *640 not identified her in its interrogatory FN6. 30 S.W.3d at 420. answers as a person with relevant knowledge and had agreed not to designate any new witnesses. The FN7. Id. trial court again sustained the objection and denied the State's request for a continuance. Thereafter, the We granted the State's petition for review to trial court allowed Kelly to testify in an offer of determine the requirements for proof of notice in a proof, and also allowed the State to introduce the condemnation proceeding. The State argues that: 1) return for bill of review purposes. After hearing the return should have been admitted as prima facie testimony from Bristol on its attorneys' fees, the tri- evidence that notice was served; 2) the trial court al court dismissed the condemnation suit and abused its discretion in refusing to admit Kelly's rendered judgment for Bristol for its attorneys' fees testimony because Bristol would not have been sur- and costs. prised or prejudiced by that testimony even though the State had not identified her in its interrogatory The State appealed, arguing that the trial court answers; and 3) the trial court abused its discretion abused its discretion by refusing to admit the return by dismissing the case without considering the as evidence of service, and further erred when it ex- standards for death penalty sanctions set forth in cluded Kelly's testimony. The court of appeals af- TransAmerican Natural Gas Corporation v. Powell. firmed the trial court's judgment, concluding that FN8 Because of our resolution of the first issue, we “[t]he State cannot rely solely on the documentation do not reach the other two. Neither the trial court of return of service to prove service was made ... nor the court of appeals addressed the good-faith because such evidence is hearsay when service was negotiations issue that Bristol asserted in its plea, executed to provide notice of a commissioner's and that issue is not before us. FN3 hearing.” The court of appeals relied on Baird FN4 v. Sam Houston Electric Cooperative, Inc. and FN8. 811 S.W.2d 913 (Tex.1991). Rotello v. Brazos County Water Control & Im-

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[1][2] Proceedings to condemn land are special missioners' hearing. It is the State's burden to prove in character, and the party attempting to establish notice in compliance with the statute in order to es- FN17 its right to condemn must show strict compliance tablish the commissioners' jurisdiction. with the law authorizing private property to be FN9 FN16. TEX. PROP.CODE § 21.018(a). taken for public use. Currently, that law is set out in Chapter 21 of the Texas Property Code. A FN17. See Parker, 19 S.W. at 519. condemnation proceeding begins when the condem- nor files a petition with the appropriate trial court. The requirement that notice of the commission- FN10 After the *641 petition is filed, the trial court ers' hearing be served finds a parallel in ordinary appoints three special commissioners to assess the judicial proceedings with the requirement that cita- FN11 FN18 condemnee's damages. The commissioners tion be properly served on the defendant. The FN12 must schedule a hearing. All parties to the person completing service must execute a verified proceeding are entitled to notice of the time and return of service, which must be filed with the place of the hearing, which must be served not later FN19 FN13 court. The return of service in judicial pro- than eleven days before the hearing date. ceedings “has long been considered prima facie Anyone competent to testify may serve notice, and FN20 evidence of the facts recited therein.” must return the original notice plus a return of ser- vice to the commissioners on or before the hearing FN18. See TEX.R. CIV. P. 99(c); see also FN14 date. Unless notice has been properly served TEX. CIV. PRAC. & REM.CODE § in accordance with the statute, the commissioners 17.027(c). have no jurisdiction to assess damages or do any- thing that would declare a condemnation of the FN19. TEX.R. CIV. P. 107. FN15 property. FN20. Primate Constr., Inc. v. Silver, 884 FN9. City of Houston v. Kunze, 153 Tex. S.W.2d 151, 152 (Tex.1994). 42, 262 S.W.2d 947, 951 (1953); Parker v. Bristol argues, citing the Houston court of ap- Fort Worth & Denver City Ry. Co., 84 peals' opinions in Baird and Rotello, that because Tex. 333, 19 S.W. 518, 519 (1892). the commissioners' proceedings are administrative FN10. TEX. PROP.CODE § 21.012(a). rather than judicial, and because service of notice of the commissioners' hearing is not an official duty FN11. Id. § 21.014. of the sheriff or constable, the return of service in this case is not entitled to the same weight as a re- FN12. Id. § 21.015(a). FN21 turn of service of a citation. But this distinc- tion is not persuasive. Under our civil procedure FN13. Id. § 21.016(a), (b). rules, a citation need not be served by a sheriff or FN14. Id. § 21.016(b), (c). constable. It can be served by anyone over eighteen whom the court has authorized to do so, as long as FN15. Kunze, 262 S.W.2d at 951; Parker, the person is not a party and has no interest in the FN22 19 S.W. at 519. suit's outcome. Thus, a citation is issued by the court and served by someone authorized by the [3][4] A party may challenge the commission- court. Similarly, the commissioners, who are court- ers' findings by filing written objections with the appointed, issue the notice of hearing, which by FN16 trial court. Here, Bristol did so, challenging statute may be served by anyone competent to testi- the commissioners' jurisdiction on the grounds that FN23 fy. In either circumstance, the effect is exactly Bristol had not been properly notified of the com- the same—service is performed at the state's direc-

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tion and with the state's authorization. Con- FN25. Compare Tex.R. Civ. P. 107, with sequently, the return in this case, which was ex- TEX. PROP.CODE § 21.016(c). ecuted by a person competent to testify and sworn to before a notary public, is entitled to be treated FN26. TEX.R. CIV. P. 21a. the *642 same as a return in a judicial proceeding, FN27. Id. at least to the extent of establishing prima facie that FN24 service occurred. We therefore disapprove of We therefore hold that a return of service of Baird and Rotello to the extent that they hold other- notice of a commissioners hearing that strictly com- wise. plies with section 21.016 of the Property Code is prima facie evidence that the condemnee has been FN21. See Baird, 627 S.W.2d at 737; Ro- served with the notice in compliance with the stat- tello, 574 S.W.2d at 211. ute. When the State introduces such a return, the FN22. TEX.R. CIV. P. 103. condemnee must offer evidence that it was not served to raise a fact issue. FN23. See TEX. PROP.CODE § 21.016(b) . Our opinion in City of Houston v. Kunze does not compel a different result. There, we stated that FN24. See, e.g., Parks v. City of Waco, 274 “recitations contained in the decree of condemna- S.W. 1006, 1008 (Tex.Civ.App.—Waco tion and other orders” did not prove that the con- 1925, no writ). demnee had been properly served with notice of the FN28 commissioners' hearing. In Kunze, the city re- The only potentially significant distinction lied solely on the condemnation award, which between return of a citation and the return in con- stated that notice had been duly served and the con- demnation proceedings is that the former must be demnee appeared through his attorney, as proof of FN25 FN29 verified while the latter need not be. In this service. The city did not offer an executed, regard, we note Texas Rule of Civil Procedure 21a, FN30 sworn return of service. Likewise in Parker v. which prescribes the methods for serving all notices Fort Worth & Denver City Railway Company we and other papers in a judicial proceeding aside from only considered the effect of the declarations con- the citation. This Rule specifically permits “a party tained in the report of the commissioners and in the to the suit, an attorney of record, a sheriff or con- FN31 decree of condemnation. We therefore have stable, or ... any other person competent to testify” not had the occasion to consider the evidentiary ef- FN26 to effect service. A certificate completed by a fect of a return of service, nor have we decided party or an attorney of record, or an affidavit of any what that effect would be. The dissent simply mis- person showing service, “shall be prima facie evid- leads the reader by citing both Kunze and Parker FN27 ence of the fact of service.” Like the Property and asserting they hold that the State may not rely Code, Rule 21a permits service by any person com- on “documents in the court's file”—a circumstance petent to testify. Also like the Property Code, Rule FN32 not considered by the Court. 21a does not require that a certificate of service be verified. Nonetheless, under the Rule such a certi- FN28. 262 S.W.2d at 951. ficate provides prima facie evidence of service. We see no meaningful distinction between a certificate FN29. See id. at 949. of service in a judicial proceeding and the return of FN30. Id. at 951. notice here, and therefore conclude that both should be entitled to the same weight. FN31. 19 S.W. at 519.

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FN32. 65 S.W.3d at 647 (Baker, J., dis- proven by testimony from the person who com- senting). pleted service. Indeed, requiring the person to be “competent to testify” insures that a properly ex- Moreover, Kunze and our holding today are ecuted return can replace live testimony, for it consistent with the rule regarding proof of service could not do so if the person completing the return in a collateral attack on a default judgment. When a were not competent to testify to the circumstances defendant contests a default judgment on the under which the notice was served. Further, there is grounds that he was not properly served, *643 recit- no obvious policy reason for requiring live testi- ations in the judgment will not prove service when mony about service in every condemnation pro- the record contains no independent evidence of ser- ceeding in which service is challenged. Rather, FN33 vice, such as a return. The return in this case such a requirement could provoke an explosion in is not simply a recitation in the commissioners' such challenges, if for no better reason than that the award. Rather, it is independent evidence of proper condemnee suspects that the condemnor will not be service. able to produce the person who completed service.

FN33. Flynt v. City of Kingsville, 125 Tex. Bristol next argues that the return in this case 510, 82 S.W.2d 934, 934–35 (1935). does not strictly comply with the Property Code, because it contains a blank that was not filled in, Bristol further argues that section 21.016(b)'s and does not clearly state that the notice was hand- requirement that the person who serves notice of delivered. Bristol does not argue that J. Peter Kline, the commissioners' hearing must be competent to identified in the return as Bristol's agent for service, testify means the Legislature intended that the only was not in fact its agent for that purpose. The State way service could be proved was through that per- responds that hand-delivery to Mr. Kline can be in- son's testimony. The State counters that the phrase ferred from the rest of the return's language. We “competent to testify” defines the class of people think it is not necessary to draw inferences from the who may serve notice, not the manner of proving return. Section 21.016(c) of the statute specifies service. The State analogizes the statute to Texas that the return must state “how and when [the no- Rule of Appellate Procedure 52.3, which requires a FN35 tice] was served.” Section 21.016(d) de- person “competent to testify” to verify the factual scribes how notice may be served. The only method allegations in a petition for an original proceeding, FN34 relevant to this case is “by delivering a copy of the noting that the Rule obviously does not con- notice to the party or to the party's agent or attor- template live testimony in such a proceeding. FN36 ney[.]” This is precisely what the return Moreover, the State maintains, if we adopt Bristol's states was done: Susan Kelly delivered a copy of reading of the statute, condemnees can too easily the notice to Mr. Kline as Bristol's agent for service challenge the commissioners' jurisdiction every on February 26, 1998, at 14295 Midway Road, Dal- time a person outside the court's subpoena power las, Texas, at 11:25 a.m. The return thus comports serves notice of a commissioners' hearing. This with the statute, and the trial court should have ad- happens frequently, according to the State, when mitted it as prima facie evidence that the notice had the State must serve notice on condemnees who live been properly served. hundreds of miles from the land to be condemned. FN35. TEX. PROP.CODE § 21.016(c). FN34. TEX.R.APP. P. 52.3. FN36. Id. § 21.016(d)(1). We agree with the State that the phrase “competent to testify” in Property Code section *644 Thus, the State has established prima 21.016(b) does not mean that service can only be facie that Bristol was served in compliance with the

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statute. Bristol must therefore introduce evidence for want of jurisdiction. that it was not served in order to create a fact issue. Because the return should have been admitted, the Applying our well-established condemnation court of appeals erred when it concluded otherwise. law, the Court should conclude that: (1) the return's We therefore reverse the court of appeals' judgment contents constitute hearsay and, therefore, the trial and remand this case to the trial court for further court did not abuse its discretion by sustaining the proceedings consistent with this opinion. landowner's hearsay objection and excluding the re- turn from evidence; (2) the trial court did not abuse Justice BAKER filed a dissenting opinion, in which its discretion by excluding testimony from the Justice HANKINSON and Justice RODRIGUEZ State's witness because the State failed to timely join. identify her as a witness; and (3) the trial court did not enter a “death-penalty” sanction order because Justice BAKER dissenting, joined by Justice of its evidentiary rulings and decision to dismiss the HANKINSON and Justice RODRIGUEZ. case. Because the Court concludes otherwise, I dis- The Court states that we granted “the State's sent. petition to determine the requirements for proof of notice in a condemnation proceeding.” What the I. BACKGROUND Court should have said is that the Court granted the The Court's opinion omits certain pertinent State's petition to change over one-hundred years of facts, and, in doing so, ignores that the State caused condemnation law about the requirements the State its evidentiary problems and the resulting judgment must meet to prove service of the commissioners' dismissing its suit. In April 1998, Bristol objected hearing notice and thus jurisdiction in a condemna- to the commissioners' award and filed its plea to the tion proceeding. The $94,000 dollar question is: jurisdiction based on its claim that it did not receive Why? proper notice of the commissioners' hearing. Bristol set the jurisdictional hearing for January 22, 1999, ****** but agreed to pass the hearing upon the State's re- quest that the parties mediate. After the State indic- This condemnation case involves whether the ated that it no longer wanted to mediate, Bristol re- trial court correctly granted the landowner's plea to set the hearing for March 26, 1999. Because of a the jurisdiction on the ground that the State did not conflict, the trial court rescheduled the hearing for prove it properly served notice of the special com- April 20, 1999. missioners' hearing on Bristol. The Court is asked to decide: On April 16, 1999, the State moved to continue the hearing, alleging a key witness's unavailability. * whether, over a hearsay objection, a return of Bristol opposed the motion for continuance. But the service of the notice of special commissioners' trial *645 court granted the State's motion and reset hearing is admissible as prima facie evidence to the hearing for May 24, 1999. The order granting show the truth of its contents; the continuance also stated that the “parties agreed * whether the trial court abused its discretion by there will be no more discovery and no more wit- excluding testimony from the State's witness be- nesses designated prior to May 24, 1999.” Bristol cause the State did not timely identify her in its filed its plea to the jurisdiction and objections to the discovery responses; and special commissioners' award in April 1998, more than one year before the jurisdictional hearing. Ac- * whether the trial court entered an impermissible cordingly, for this entire time, the State knew it had death-penalty sanction by excluding testimony the burden to prove jurisdiction to overcome Bris- from the State's witness and dismissing the case tol's claim for lack of service of the commissioners'

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hearing notice. amounted to an impermissible death-penalty sanc- tion. Moreover, during oral argument, the State con- ceded that it redesigned the project and completed In response, Bristol argues that the return of its construction, so it no longer needs to condemn service of the notice of commissioners' hearing is Bristol's land. Accordingly, whether the State can not prima facie evidence of proper notice. Bristol condemn Bristol's land is no longer an issue in this contends that the traditional presumptions of regu- litigation. The sole remaining issue is whether the larity that attach to an officer's formal return of State can avoid the trial court's judgment awarding citation do not apply to a return of service of notice Bristol $94,000 in attorneys' fees, expert-witness of hearing in a condemnation proceeding, and the fees, miscellaneous expenses, and court costs. State did not meet its burden to prove strict compli- ance with the Property Code's procedural require- II. THE PARTIES' CONTENTIONS ments. The State contends that in a hearing on a landowner's plea to the jurisdiction, the notice of Moreover, Bristol argues that the trial court did commissioners' hearing and attached return of ser- not abuse its discretion by excluding Kelly's testi- vice are admissible as prima facie evidence that the mony because the State never timely designated notice was properly served. The State's principal ar- Kelly as a person with knowledge of relevant facts. gument is that the notice of hearing and return of Bristol points out that the State had over a year to service are statutorily mandated so that when juris- designate Kelly, knowing Bristol had objected to diction is challenged, the trial court should admit jurisdiction based on improper notice. And, Bristol the notice and return as prima facie proof of juris- relies on the parties' Rule 11 agreement that they diction even in the face of a hearsay objection. would not designate any new witnesses. Finally, Moreover, the State contends that section 21.016's Bristol contends that the trial court's rulings that ex- requirement that a “person competent to testify” cluded Kelly's testimony*646 and dismissed the serve the notice only identifies the class of persons case for lack of jurisdiction do not amount to death- who can serve notice and does not suggest that, as penalty sanctions, because the condemnation suit the court of appeals concluded, the State must was dismissed without prejudice and thus the State prove notice through that person's testimony. See could have immediately refiled its action. 30 S.W.3d at 420. III. APPLICABLE LAW Additionally, the State contends the trial court A. CONDEMNATION abused its discretion by refusing to allow Kelly, the SUIT—JURISDICTIONAL REQUIREMENTS State's employee who served the notice of commis- Our Legislature has enacted a comprehensive sioners' hearing on Bristol, to testify. Relying on statutory scheme that governs the State's eminent- our Rules of Civil Procedure, the State asserts the domain power, and the jurisdictional requirements trial court's ruling was wrong because: (1) a hearing the State must meet before it can condemn prop- on a plea to the jurisdiction is not a trial for discov- erty. TEX. PROP.CODE §§ 21.001 –.065; TEX. ery purposes and, therefore, Rule 193.5's presump- TRANSP. CODEE § 203.051. In Texas, the State's tion that discovery supplemented less than thirty filing a condemnation petition begins the legal pro- days before trial does not apply; and (2) the record ceedings by which the State acquires private prop- affirmatively shows Bristol would not be surprised erty for public use. TEX. PROP.CODE § 21.012. A or prejudiced by allowing such testimony under condemnation action is divided into two distinct Rule 193.6. Finally, the State argues that the trial stages. The first stage is administrative and in- court's refusing to allow Kelly to testify and dis- volves a hearing before three special commission- missing the State's suit for want of jurisdiction ers appointed by the trial court where the State files

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its condemnation petition. See TEX. PROP.CODE hearing date, and that person shall write a return of §§ 21.014–.015; Patrick Media Group, Inc. v. Dal- service on the notice that states how and when the las Area Rapid Transit, 879 S.W.2d 375, 376 notice was served. TEX. PROP.CODE § 21.016(c). (Tex.App.—Eastland 1994, writ denied). After a hearing, the commissioners make findings and de- Absent the landowner's waiver or stipulation, termine the condemnation-damages award. TEX. the State has the burden to prove exact adherence PROP.CODE §§ 21.014, 21.018. The commission- with the Property Code's condemnation-proceeding ers' hearing “is neither a suit at law nor a case in requirements to demonstrate jurisdiction. See equity.” Pearson v. State, 159 Tex. 66, 315 S.W.2d Denton County v. Brammer, 361 S.W.2d 198, 200 935, 937 (1958) (quoting Fortune v. Killebrew, 86 (Tex.1962); Kunze, 262 S.W.2d at 951; Parker, 19 Tex. 172, 23 S.W. 976, 978 (1893)). It is not until a S.W. at 519. Thus, if notice of the commissioners' party objects to the commissioners' award, or the hearing was never properly served under the Prop- time for objecting expires, that the case proceeds to erty Code, the commissioners' condemnation-dam- the second stage as a judicial proceeding in the trial ages *647 award is invalid and the trial court lacks court. See TEX. PROP.CODE § 21.018; Amason v. jurisdiction. Kunze, 262 S.W.2d at 951; Parker, 19 Natural Gas Pipeline Co., 682 S.W.2d 240, 242 S.W. at 519; McIntyre, 13 S.W. at 1028; Anderson (Tex.1984); Pearson, 315 S.W.2d at 937. v. Clajon Gas Co., 677 S.W.2d 702, 704 (Tex.Civ.App.—Houston [1st Dist.] 1984, no writ); Our condemnation jurisprudence mandates that Maberry v. Pedernales Elec. Coop., 493 S.W.2d the landowner receive notice of the condemnation 268, 270 (Tex.Civ.App.—Austin 1973, writ ref'd hearing in strict compliance with the statutory re- n.r.e.); Bowie County v. Powell, 66 S.W. 237, quirements. City of Houston v. Kunze, 153 Tex. 42, 237–38 (Tex.Civ.App.1901, no writ). 262 S.W.2d 947, 951 (1953); Parker v. Fort Worth & Denver City Ry. Co., 84 Tex. 333, 19 S.W. 518, In meeting its burden to prove proper notice 519 (1892); McIntyre v. Luker, 77 Tex. 259, 13 and thus jurisdiction in a condemnation proceeding, S.W. 1027, 1028 (1890). Under the Property Code, the State may not rely solely on recitations in the each party is entitled to written notice of the time commissioners' award or other documents in the and place of the commissioners' hearing, served at court's file, including the return itself. Kunze, 262 least eleven days before the hearing by a person S.W.2d at 951; Parker, 19 S.W. at 519. And, if the competent to testify. TEX. PROP.CODE § 21.016. State does not prove effective notice, the trial court must dismiss the proceeding: A person is competent to testify unless the court determines he or she is (1) “insane” as our Inasmuch as condemnation proceedings are spe- rules of evidence define, or (2) a child or any other cial in their character and involve a summary tak- person who the court finds “does not possess suffi- ing of property from its owner, it is the settled cient intellect” to testify. TEX.R. EVID. 601. rule that they must be conducted in strict accord- Moreover, a person is not competent to testify ance with the governing statutes. It follows that about a matter unless evidence shows the person condemnation proceedings in which the statutes has personal knowledge of that matter. TEX.R. have been ignored are wholly void, and, when the EVID. 602; see also Loper v. Andrews, 404 S.W.2d occasion therefor arises, the court will hold them 300, 305 (Tex.1966); Strickland Transp. Co. v. In- to be void of its own motion. gram, 403 S.W.2d 192, 195 State v. Davis, 139 S.W.2d 638, 640 (Tex.Civ.App.—Texarkana 1966, writ dism'd). The (Tex.Civ.App.—Eastland 1940, writ dism'd) person who serves the notice must return the origin- (quoting 16 TEX. JUR. 700 § 95); see also Kunze, al notice to the commissioners on or before the 262 S.W.2d at 951; McIntyre 13 S.W. at 1028. We

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liberally construe the Property Code's protections abuses. TransAmerican, 811 S.W.2d at 918. for the landowner's benefit. John v. State, 826 S.W.2d 138, 140 (Tex.1992). If the trial court *648 IV. ANALYSIS grants a landowner's motion to dismiss based on the Bristol contested the State's right to condemn State not having a right to condemn the land, it may its property by filing a verified plea to the jurisdic- award the landowner “reasonable and necessary tion. Thus, under our condemnation law, the State fees for attorneys, appraisers, and photographers had the burden to prove strict compliance with all and for the other expenses incurred by the property the procedural steps necessary for the commission- owner to the date of the hearing or judgment.” ers' award to be valid and for the trial court to have TEX. PROP.CODE § 21.019(c). jurisdiction. See Kunze, 262 S.W.2d at 951; Parker, 19 S.W. at 519; McIntyre, 13 S.W. at 1028; Ander- B. EVIDENTIARY ISSUES—STANDARD OF son, 677 S.W.2d at 704; Maberry, 493 S.W.2d at REVIEW 270; Davis, 139 S.W.2d at 640; Powell, 66 S.W. at The trial court determines preliminary ques- 237–38. And if the State's proof was insufficient, tions about admitting or excluding evidence. the trial court correctly dismissed the proceeding TEX.R. EVID. 104(a). Whether to admit or exclude for want of jurisdiction. See Kunze, 262 S.W.2d at evidence is a matter committed to the trial court's 951; McIntyre, 13 S.W. at 1028. sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Gee v. Liberty The State recognizes that “notice of the com- Mut. Fire Ins. Co., 765 S.W.2d 394, 396 missioners' hearing is not citation or process, it is (Tex.1989). A trial court abuses its discretion when simply notice.” Despite this acknowledgment, the it acts without regard to any guiding rules or prin- State argues that the return of service of the notice ciples. Downer v. Aquamarine Operators, Inc., 701 of commissioners' hearing should be prima facie S.W.2d 238, 241–42 (Tex.1985). Whether a trial evidence that notice was served, just as a return of court abused its discretion in making an evidentiary service of process in an ordinary judicial proceed- ruling is a question of law. Jackson v. Van Winkle, ing is treated. Ignoring that our condemnation law 660 S.W.2d 807, 810 (Tex.1983). already sets out the State's burden of proof for the strict jurisdictional requirements in these special C. DEATH PENALTY SANCTIONS proceedings, the Court agrees with the State. This Court defines “death-penalty” discovery sanctions as sanctions that terminate a party's right But anything more than the Court's cursory to present the merits of its claims. See Chrysler analysis shows that the procedures for serving no- Corp. v. Blackmon, 841 S.W.2d 844, 845 tice of the commissioners' hearing are nothing like (Tex.1992). Such sanctions include striking a those for serving citation, which, in an ordinary ju- party's pleadings, dismissing its action, or rendering dicial proceeding, provide a defendant with notice a default judgment against a party for abusing the of suit. See Primate Constr., Inc. v. Silver, 884 discovery process. See, e.g., TransAmerican Natur- S.W.2d 151, 152 (Tex.1994). In an ordinary judi- al Gas Corp. v. Powell, 811 S.W.2d 913, 917–18 cial proceeding, the court's clerk issues a citation as (Tex.1991). A death-penalty sanction adjudicates a an official court document. See TEX.R. CIV. P. 99. party's claims without regard to their merits and is No party or other interested person is authorized to based on the party's conduct during discovery. serve the citation; only a sheriff, constable, or other TransAmerican, 811 S.W.2d at 918. In other words, person authorized by law or court order may do so. a sanction order is a death-penalty sanction only if See TEX.R. CIV. P. 103. Additionally, the officer it precludes a party from adjudicating the merits of serving the citation must verify the return of ser- his or her claims because of the party's discovery vice. See TEX.R. CIV. P. 107.

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In an ordinary judicial proceeding, an officer's have recognized that the presumption in ordinary return of service that meets all procedural require- judicial proceedings—that the sheriff, constable, or ments is valid on its face and carries a presumption other person authorized to serve process acted in an of the truth of the facts stated on the return and a ordinary and lawful manner—does not arise when presumption of its regularity. See Sauve v. State, determining if a landowner in a condemnation pro- 638 S.W.2d 608, 610 (Tex.App.—Dallas 1982, writ ceeding received notice of the commissioners' hear- ref'd.). The return of service is prima facie evidence ing. Baird, 627 S.W.2d at 737; Rotello, 574 S.W.2d of service because our procedural rules ensure that at 211. Consequently, the return of service of the independent, uninterested, and legally authorized commissioners' hearing notice must be regarded as persons serve process and verify the return. See hearsay upon proper objection, and, standing alone, TEX.R. CIV. P. 103, 107. Therefore, in an ordinary the return is not evidence that service of the notice judicial proceeding, unless the party contesting ser- was proper. Baird, 627 S.W.2d at 737; Rotello, 574 vice presents a preponderance of evidence to the S.W.2d at 211. This is because the return's contents contrary—for example the party's testimony along constitute a statement other than one the declarant with corroborating facts or circumstances—the of- made while testifying at the trial or hearing, and the ficer's return of service is sufficient proof that the statement is offered into evidence to prove the truth citation and petition were properly served. See of the matter asserted. See TEX.R. EVID. 801(d). Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972); Sauve, 638 S.W.2d at 610. The special nature of a condemnation proceed- ing further demonstrates why the Court should not In contrast, the Property Code explicitly gov- liken the return of service of the commissioners' erns how notice of the commissioners' hearing, an hearing notice to a return of service of citation in an administrative proceeding, is issued and served in a ordinary judicial proceeding. And, such special condemnation proceeding. See TEX. PROP.CODE nature supports our concluding that the State must § 21.016; Pearson, 315 S.W.2d at 937; Fortune, 23 present independent admissible evidence to prove S.W. at 978. The commissioners issue a notice of the notice was duly and legally served. Kunze, 262 hearing, which any “person competent to testify S.W.2d at 951; Parker, 19 S.W. at 519. This Court may serve.” TEX. PROP.CODE § 21.016(b). The has long recognized that a proceeding to condemn Property Code does not require that the return of land is special in character. Kunze, 262 S.W.2d at service be verified. Thus, serving notice of the 951; Parker, 19 S.W. at 519; McIntyre, 13 S.W. at hearing is not a sheriff's or constable's official duty, 1028. Article 1, section 17 of our Constitution and a court order authorizing any other person to provides that “[n]o person's property shall be taken effect such service is unnecessary. Baird v. Sam ... for or applied to public use without adequate Houston Elec. Coop., Inc., 627 S.W.2d 734, 737 compensation being made....” Thus, condemnation (Tex.App.—Houston [1st Dist.] 1981, writ dism'd); proceedings implicate constitutional concerns and *649Rotello v. Brazos County Water Control & Im- protections. See City of Houston v. Derby, 215 provement Dist., 574 S.W.2d 208, 210–12 S.W.2d 690, 692 (Tex.Civ.App.—Galveston 1948, (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). writ ref'd). Indeed, the State's eminent-domain power, which “could be exercised very oppress- In sum, during a condemnation action's admin- ively, ought to be, and is, very strictly regulated.” istrative stage, any person competent to testify, Derby, 215 S.W.2d at 692. This is why we liberally even an interested person such as the State's em- construe the Property Code's protections for the ployee, Kelly, may serve notice of the commission- landowner's benefit. John, 826 S.W.2d at 140. And ers' hearing and return the service without verifying it explains our long-standing jurisprudence that if the return. Because of the statutory scheme, courts the State fails to show strict compliance with the

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Property Code's procedural requirements, the trial meaning. But this argument lacks merit. Carrying court must dismiss the case. See Kunze, 262 S.W.2d the State's contention to its logical end, any paper at 951; Parker, 19 S.W. at 519; McIntyre, 13 S.W. filed by any person in any lawsuit would become at 1028; Davis, 139 S.W.2d at 640. admissible evidence merely because it was filed with the court. Here, the return of service of the commission- ers' hearing notice shows that Kelly, the State's em- Further, the State incorrectly contends that ployee, served the notice and verified the return. “competent to testify” in Property Code section But, because the Property Code does not afford 21.016 has no meaning beyond identifying the class Bristol the same protections of service by an unin- of persons who can serve the notice. To the con- terested, legally authorized person as in an ordinary trary, our rules of evidence and case law demon- judicial proceeding, the Court cannot attribute the strate that competency to testify speaks to whether presumption of validity of service of citation to the a trial court may admit a person's testimony as return of service here. When the State tried to intro- evidence after determining that the person is not in- duce the return as evidence of proper notice, Bristol sane or a child or other person who the court finds made a timely hearsay objection. Under Texas' con- does not have sufficient intellect to testify. See demnation law, the trial court correctly sustained TEX.R. EVID. 601, 602; Loper, 404 S.W.2d at 305; Bristol's objection. See Kunze, 262 S.W.2d at 951; Strickland Transp. Co., 403 S.W.2d at 195. And, Parker, 19 S.W. at 519; McIntyre, 13 S.W. at 1028; more importantly, a person is competent to testify Baird, 627 S.W.2d at 737; Rotello, 574 S.W.2d at only if he or she has personal knowledge about the 211; Davis, 139 S.W.2d at 640. The State argues facts related. See TEX.R. EVID. 601, 602; Loper, the trial court abused its discretion in making this 404 S.W.2d at 305; Strickland Transp. Co., 403 ruling because a hearsay exception applies to the S.W.2d at 195. Therefore, section 21.016's explicit return of service of notice of the commissioners' language requiring that a person competent to testi- *650 hearing. At oral argument, the State relied on fy serve notice, demonstrates that testimony about rule 803(8) of the Rules of Evidence, which service and not just the return itself is required to provides a hearsay exception for: prove jurisdiction. Here, the return's contents con- stitute hearsay, and the only person who has per- Records, reports, statements, or data compila- sonal knowledge about service is the person who tions, in any form, of public offices or agencies served it—in this case, Kelly. setting forth: (A) the activities of the office or agency; (B) matters observed pursuant to duty Additionally, the State misplaces its reliance on imposed by law as to which matters there was a Sauve v. State, 638 S.W.2d at 608. That case is duty to report, excluding in criminal cases mat- readily distinguishable. Sauve involves a juvenile's ters observed by police officers and other law en- trial as an adult in a criminal district court. Spe- forcement personnel; or (C) in civil cases as to cifically, the court of appeals considered whether a any party and in criminal cases as against the juvenile probation officer properly served a citation state, factual findings resulting from an investiga- of a transfer proceeding in the juvenile court on the tion made pursuant to authority granted by law; defendant. Sauve, 638 S.W.2d at 608. At the time, unless the sources of information or other cir- the Family Code required that service be made by cumstances indicate lack of trustworthiness. any suitable person under the court's direction. Sauve, 638 S.W.2d at 610. Even though he con- TEX.R. EVID. 803(8). The State contends that ceded being served with process, the defendant ar- its employee's executing the return and filing it gued that the criminal district court lacked jurisdic- with the commissioners and the court records made tion over him because the juvenile court had not is- the return a public record within rule 803(8)'s

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sued a formal written order directing the probation Bristol under discovery Rule 193.6. But the State's officer to serve the citation of the transfer proceed- arguments are red herrings, raised to divert the ing. Sauve, 638 S.W.2d at 609. In rejecting this ar- Court's attention from the actual events in this case. gument, the court of appeals relied on the general rule that an officer's return which is valid on its The record shows the State never designated face carries the presumption of the truth of the facts Kelly as a person with knowledge of relevant facts stated on the return and of regularity. Sauve, 638 in any of its discovery responses. The State did not S.W.2d at 610. Because of this presumption, the designate Kelly even though Bristol, from the be- court of appeals concluded that a written order was ginning of the trial-court proceeding, had chal- unnecessary because a presumption exists that the lenged jurisdiction on the ground that it did not re- probation officer would not have executed service ceive proper notice of the commissioners' hearing. unless the court had directed him to do so. Sauve, Because the jurisdictional hearing was reset several 638 S.W.2d at 610. times, the State had over a year to designate Kelly. And when the trial court granted the State's motion *651 Here, however, the issue is whether Bris- to continue the jurisdictional hearing from April 20 tol received proper notice of the commissioners' to May 24, 1999, the State agreed that “there will condemnation hearing—not a juvenile proceed- be no more discovery and no more witnesses desig- ing—and the Property Code, not the Family Code, nated prior to May 24, 1999.” Accordingly, the trial provisions apply. Moreover, unlike juvenile pro- court's ruling that excluded Kelly's testimony ceedings, condemnation proceedings place the bur- simply enforced the parties' Rule 11 agreement and den on the State to show notice was properly the trial court's previous order. served. Compare Kunze, 262 S.W.2d at 951, Park- er, 19 S.W. at 519, and Anderson, 677 S.W.2d at The State asserts that the trial court imposed 704 with Sauve, 638 S.W.2d at 610. And, as previ- the discovery freeze at Bristol's insistence and not ously discussed, the Property Code's express provi- by the parties' agreement. But the record does not sions governing the notice requirements and con- support this assertion. And the State provides no demnation proceedings' special nature should pre- evidence that it repudiated the Rule 11 agreement clude the Court from relying on the presumption or objected to it in the trial court or in the court of that a return of service is valid on its face in this appeals. Moreover, the State conceded during oral context. But because the Court disregards these im- argument that it had not objected to or complained portant differences, it improperly applies the pre- about the Rule 11 agreement. The State cannot now sumption and concludes that the trial court abused rely on our discovery rules to ignore the Rule 11 its discretion by excluding the return from evid- agreement. Were the Court to allow the State to do ence. so, we would be holding the State to a different standard than other litigants. We have long recog- If the Court correctly applied condemnation nized: law to hold that the return of service is inadmiss- able hearsay, it would next have to consider the [W]hen a State enters the Courts as a litigant, it State's argument that the trial court abused its dis- must be held subject to the same rules that govern cretion by refusing to allow its employee, Kelly, to the other litigants, and abide the consequences of testify about her serving the notice on Bristol. The the suit.... When a state appears as a party to a State urges that the discovery rules requiring dis- suit, she voluntarily casts off the robes of her covery supplementation thirty days before trial do sovereignty, and stands before the bar of a court not apply to jurisdictional hearings and that Kelly's of her own creation in the same attitude as an in- testimony would not have prejudiced or surprised dividual litigant; and her rights are determined and fixed by the same principles of law and

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equity, and a judgment for or against her must be the same. But this conclusion ignores that the State given the same effect as would have been given it is a party in a condemnation suit, not the judiciary had it *652 been rendered in a case between overseeing the action. And such a conclusion dis- private individuals. regards that here, the State's employee, not an unin- terested party, served the notice. Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1145–46 (1939) (citations omitted). As a res- Additionally, the Court improperly relies on ult, the Rule 11 agreement is valid and enforceable. Rule 21a to support its contention that such return Thus, the trial court did not abuse its discretion by of service should be prima facie evidence of ser- excluding Kelly's testimony. vice. Rule 21a expressly provides that it governs how court filings “other than the citation to be Additionally, the State's argument that the trial served upon the filing of a cause of action” shall be court's evidentiary rulings and dismissing the case served. TEX.R. CIV. P. 21a. Further, Rule 21a is for want of jurisdiction constitute a death-penalty entirely different from section 21.016 of the Prop- sanction lacks merit. A death-penalty sanction only erty Code. This is because it explicitly advises exists if the sanction terminates or inhibits a party parties about how they may ensure proper service. from adjudicating its claims' merits. Chrysler Moreover, Rule 21a is specifically designed to fa- Corp., 841 S.W.2d at 845; TransAmerican, 811 cilitate how parties must serve pleadings after the S.W.2d at 918. parties have been served with citation and are already before the court. TEX.R. CIV. P. 21a. Here, the trial court's rulings did not adjudicate the State's condemnation action on its merits. The Further, the Court cites no authority, legal or State concedes as much in its briefing. The trial otherwise, for the proposition that “ ‘competent to court's dismissal did not bar the State from refiling testify’ insures that a properly executed return can its condemnation petition and instituting the con- replace live testimony, for it could not do so if the demnation proceeding against Bristol with proper person completing the return were not competent to notice. Thus, the trial court's order was not a death- testify to the circumstances under which the notice penalty sanction and, therefore, was not an abuse of was served.” 65 S.W.3d at 643. But just because discretion. Kelly may be competent to testify, does not make her return prima facie proof of service. As previ- V. THE COURT'S WRITING ously discussed, “competent to testify” refers to The Court's view that the return of service of whether a person can give testimony about a certain the commissioners' hearing notice is analogous to a matter in a proceeding. See TEX.R. EVID. 601, 602 return of citation in an ordinary judicial proceeding ; Loper, 404 S.W.2d at 305; Strickland Transp. Co., turns Texas' condemnation jurisprudence on its 403 S.W.2d at 195. As a result, section 21.016's re- head. Although the Court recognizes that condem- quiring that a person competent to testify effect ser- nation proceedings are special in character, 65 vice supports our concluding that the State must of- S.W.3d at 640–42, it summarily concludes that be- fer testimony*653 from the person with personal cause the commissioners issue the notice, and be- knowledge about service, not just the return itself, cause a person competent to testify executed the re- to prove notice was duly served. turn, the return must be taken as prima facie evid- ence of proper service. The Court reasons that, in Finally, the Court opines that there are no obvi- both an ordinary judicial proceeding and a condem- ous policy reasons for requiring live testimony nation proceeding, service is performed at the about service and that such a requirement could State's direction and authorization; therefore, the re- provoke an explosion of jurisdictional challenges turn of service in both instances should be treated because the condemnee may believe the State can-

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not produce the person who served the notice. 65 sanction and thus, the State can refile its condemna- S.W.3d at 643. But the Court's myopic view of pub- tion action against Bristol. Because the Court does lic policy causes it to miss the obvious policy reas- not so hold, I respectfully dissent. on behind treating the return here differently than an ordinary return of citation; that is, condemnation Tex.,2001. proceedings involve a constitutional taking. Addi- State v. Bristol Hotel Asset Co. tionally, the Court's statement simply adopts the 65 S.W.3d 638, 45 Tex. Sup. Ct. J. 144 oft-made cry, as the State makes here, that the “sky END OF DOCUMENT will fall” if this Court does not change existing law. For over one-hundred years, our condemnation law has required that the State prove that the statute's procedural requirements, including proper notice, were met. See Kunze, 262 S.W.2d at 951; Parker, 19 S.W. at 519; McIntyre, 13 S.W. at 1028; Davis, 139 S.W.2d at 640. Further, since Rotello and Baird issued in 1982 and 1978, respectively, I have found no other published condemnation cases in which the court had to determine if the State proved juris- diction because it solely relied on the return, or be- cause it failed to offer testimony from the party who served notice. Thus, for at least twenty years, there has been a dearth of condemnation cases in- volving jurisdictional pleas based on faulty notice of service.

VI. CONCLUSION Over one-hundred years of condemnation law dictates the outcome here. Remarkably, however, the Court changes this well-established law in a case in which the land the State sought to condemn is no longer an issue. And, because of this, landowners will no longer enjoy the protection in condemnation proceedings that the State must prove strict adherence to the Property Code's notice requirements to establish jurisdiction. The Court should hold that: (1) the return of service of the no- tice of commissioners' hearing in a condemnation case is not admissible as prima facie evidence of the truth of its contents in the face of a hearsay ob- jection; (2) the trial court did not abuse its discre- tion by excluding testimony from the State's un- timely identified witness, because the trial court en- forced the parties' Rule 11 agreement to not desig- nate any additional witnesses; and (3) the trial court's dismissal order was not a death-penalty

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overruled by operation of law and judgment be- came final 30 days later and trial court lost jurisdic- Supreme Court of Texas. tion; thus, order of trial court after it had lost juris- Dorothy Reed TAACK, Relator, diction purporting to grant new trial was nullity. v. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b(c, Hon. John R. McFALL, Judge, et al., Respondents. e).

No. C–2337. [3] Judgment 228 326 Oct. 12, 1983. 228 Judgment Wife sought writ of mandamus to compel judge 228VIII Amendment, Correction, and Review in to vacate his order granting new trial on divorce ac- Same Court tion. The Supreme Court held that: (1) judge's oral 228k326 k. Allowing Amendment Nunc Pro pronouncement and docket entry granting new trial Tunc. Most Cited Cases could not substitute for written order required by Failure to follow express requirements of rule rule of civil procedure governing granting of mo- of civil procedure governing granting of motion for tion for new trial, and (2) order issued after trial new trial is not clerical error which could be court lost jurisdiction of case purporting to grant amended nunc pro tunc. Vernon's Ann.Texas Rules new trial was nullity. Civ.Proc., Rule 329b(c).

Writ granted conditionally. *923 Benson & Benson, Charles E. Benson and Barbara S. Benson, Lubbock, for relator. West Headnotes McClendon & Richards, Jack McClendon, Lub- [1] Divorce 134 151 bock, for respondents. 134 Divorce 134IV Proceedings PER CURIAM. 134IV(M) New Trial Relator, Dorothy Reed Taack, seeks a writ of 134k151 k. In General. Most Cited Cases mandamus to compel Judge John R. McFall to va- Judge's oral pronouncement and docket entry cate his order granting a new trial in a divorce ac- granting husband new trial on divorce action could tion between relator and Wayne Taack. We condi- not substitute for written order required by rules of tionally grant the writ. civil procedure. Vernon's Ann.Texas Rules Civ.Proc., Rule 329b(c). Dorothy Reed Taack sued Wayne Taack for di- vorce. Judge McFall rendered a default divorce de- [2] Divorce 134 151 cree on October 8, 1982. Wayne Taack timely filed a motion for new trial, and a hearing on the motion 134 Divorce was held on November 3, 1982. Judge McFall or- 134IV Proceedings ally granted Mr. Taack's motion for new trial and 134IV(M) New Trial noted his action on the docket sheet. On that same 134k151 k. In General. Most Cited Cases day, November 3, Judge McFall granted Dorothy Where husband's motion for new trial was not Taack's request for temporary orders regarding such determined by written order signed within 75 days matters as child support and custody. These tem- after default divorce decree was signed, motion was porary orders were signed by Judge McFall on

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November 12, 1982. Apparently, the parties mis- Rule 329b(c) is not a clerical error. takenly believed that an order granting Mr. Taack's motion for new trial was also signed on that day. Relator's motion for leave to file petition for writ of mandamus is granted, and without hearing On March 22, 1983, Wayne Taack filed a oral argument, we conditionally grant the writ of cross-petition for divorce. On June 13, 1983, mandamus to compel Judge McFall to vacate his Dorothy Taack filed a motion to dismiss, claiming order of June 21, 1983, granting a new trial. that the decree of divorce signed on October 8, TEX.R.CIV.P. 483. The writ of mandamus will is- 1982, was final. On June 21, 1983, Judge McFall sue only if he does not vacate that order. denied Dorothy Taack's motion to dismiss and rendered a judgment nunc pro tunc vacating the di- Tex.,1983. vorce decree of October 8, 1982, and granting Mr. Taack v. McFall Taack's motion for new trial. 661 S.W.2d 923

An order granting a motion for new trial is not END OF DOCUMENT effective unless signed within seventy-five*924 days after the judgment is signed. TEX.R.CIV.P. 329b(c). If no written order is signed within this period, the motion for new trial is deemed over- ruled by operation of law. TEX.R.CIV.P. 329b(c). The trial court, however, retains jurisdiction to va- cate, modify, correct or reform the judgment for an additional thirty days. TEX.R.CIV.P. 329b(e).

[1][2] Judge McFall's oral pronouncement and docket entry granting the new trial could not substi- tute for the written order required by Rule 329b(c). Clark & Company v. Giles, 639 S.W.2d 449 (Tex.1982); McCormack v. Guillot, 597 S.W.2d 345 (Tex.1980). Since Wayne Taack's motion for new trial was not determined by a written order signed within seventy-five days after the default di- vorce decree was signed on October 8, 1982, the motion was overruled by operation of law on December 22, 1982. The judgment became final thirty days later, and the trial court lost jurisdiction in the case. Therefore, the order of June 21, 1983, purporting to grant a new trial, is a nullity.

[3] Wayne Taack argues that the judgment nunc pro tunc rendered by Judge McFall corrected a clerical error and thus was authorized under TEX.R.CIV.P. 316. A similar argument was ad- vanced without success by the respondent in Mc- Cormack v. Guillot, 597 S.W.2d 345. We hold that the failure to follow the express requirements of

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must demonstrate that the adverse finding is against the great weight and preponderance of the evid- Court of Appeals of Texas, ence. Houston (1st Dist.). Glenn TILL, Appellant, [2] Appeal and Error 30 1003(7) v. Lora Williams THOMAS and Ennis Inc. d/b/a Quik 30 Appeal and Error Park, Appellees. 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and No. 01–98–00678–CV. Findings Dec. 16, 1999. 30XVI(I)2 Verdicts 30k1003 Against Weight of Evidence Bus driver brought negligence action against 30k1003(7) k. Manifest weight of van driver and her employer for injuries allegedly evidence. Most Cited Cases resulting from vehicle accident. The 281st Judicial In reviewing a challenge that a jury finding is District Court, Harris County, William F. Bell, J., against the great weight and preponderance of the entered take-nothing judgment based on jury ver- evidence, the Court of Appeals must examine the dict. Bus driver appealed. The Court of Appeals, record to determine if there is some evidence to Frank C. Price, J. (Assigned), held that: (1) van support the finding, and then determine, in light of driver's admission that she misjudged distance the entire record, whether the finding is so contrary between van and bus, in and of itself, did not show to the overwhelming weight and preponderance of that van driver was negligent; (2) bus driver did not the evidence as to be clearly wrong and manifestly prove accident was proximate cause of back injur- unjust. ies; and (3) Court could not appraise assignment of error based on admission of testimony regarding [3] Appeal and Error 30 1003(7) matters not disclosed in discovery when bus driver failed to include interrogatories and answers in re- 30 Appeal and Error cord. 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Affirmed. Findings 30XVI(I)2 Verdicts West Headnotes 30k1003 Against Weight of Evidence 30k1003(7) k. Manifest weight of [1] Appeal and Error 30 1003(5) evidence. Most Cited Cases 30 Appeal and Error When reviewing whether a jury finding is so 30XVI Review contrary to overwhelming weight and preponder- 30XVI(I) Questions of Fact, Verdicts, and ance of the evidence as to be clearly wrong and Findings manifestly unjust, Court of Appeals cannot reverse 30XVI(I)2 Verdicts merely because it concludes that the evidence pre- 30k1003 Against Weight of Evidence ponderates toward an affirmative answer. 30k1003(5) k. Great or overwhelm- [4] Appeal and Error 30 1003(5) ing weight or preponderance. Most Cited Cases When a party attacks a jury finding concerning 30 Appeal and Error an issue upon which he had the burden of proof, he 30XVI Review

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30XVI(I) Questions of Fact, Verdicts, and cause of his injuries. Findings 30XVI(I)2 Verdicts [7] Automobiles 48A 245(2.1) 30k1003 Against Weight of Evidence 48A Automobiles 30k1003(5) k. Great or overwhelm- 48AV Injuries from Operation, or Use of High- ing weight or preponderance. Most Cited Cases way In reviewing a challenge that jury finding is 48AV(B) Actions against great weight and preponderance of evid- 48Ak245 Questions for Jury ence, Court of Appeals cannot substitute its opinion 48Ak245(2) Care Required and Negli- for that of the trier of fact and determine that it gence would reach a different conclusion. 48Ak245(2.1) k. In general. Most [5] Negligence 272 1579 Cited Cases

272 Negligence Automobiles 48A 245(50.1) 272XVIII Actions 48A Automobiles 272XVIII(C) Evidence 48AV Injuries from Operation, or Use of High- 272XVIII(C)2 Presumptions and Infer- way ences 48AV(B) Actions 272k1579 k. Happening of accident or 48Ak245 Questions for Jury injury. Most Cited Cases 48Ak245(50) Proximate Cause of In- Occurrence of an accident or a collision is not jury of itself evidence of negligence. 48Ak245(50.1) k. In general. Most [6] Automobiles 48A 146 Cited Cases Whether the plaintiff alleging negligence res- 48A Automobiles ulting in automobile accident succeeds in proving 48AV Injuries from Operation, or Use of High- negligence and proximate cause by a preponderance way of the evidence is within the jury's province to de- 48AV(A) Nature and Grounds of Liability termine. 48Ak146 k. Care required and liability in general. Most Cited Cases [8] Automobiles 48A 173(6)

Automobiles 48A 201(.5) 48A Automobiles 48AV Injuries from Operation, or Use of High- 48A Automobiles way 48AV Injuries from Operation, or Use of High- 48AV(A) Nature and Grounds of Liability way 48Ak173 Vehicles at Rest or Unattended 48AV(A) Nature and Grounds of Liability 48Ak173(6) k. Passing vehicle parked 48Ak201 Proximate Cause of Injury or standing. Most Cited Cases 48Ak201(.5) k. In general. Most Cited Van driver's admission that she misjudged dis- Cases tance between van and bus due to overhang on To prevail on negligence claim arising out of van's door, in and of itself, did not show that van automobile accident, bus driver had to prove specif- driver was negligent with regard to overhang hitting ic acts of negligence on the part of the other driver bus' left side mirror as van passed parked bus, and also prove that the accident was the proximate where van driver testified that she was not speeding

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and was not in any type of hurry, and that she saw improper judgment. bus and attempted to avoid it. [11] Appeal and Error 30 1050.1(1) [9] Automobiles 48A 201(5) 30 Appeal and Error 48A Automobiles 30XVI Review 48AV Injuries from Operation, or Use of High- 30XVI(J) Harmless Error way 30XVI(J)10 Admission of Evidence 48AV(A) Nature and Grounds of Liability 30k1050 Prejudicial Effect in General 48Ak201 Proximate Cause of Injury 30k1050.1 Evidence in General 48Ak201(1) Efficient Cause of Injury 30k1050.1(1) k. In general. in General Most Cited Cases 48Ak201(5) k. Vehicles at rest or unattended. Most Cited Cases Appeal and Error 30 1056.1(1) Injured bus driver did not prove that accident 30 Appeal and Error with van driver was proximate cause of his back in- 30XVI Review juries, where there was ample testimony from bus 30XVI(J) Harmless Error driver's doctor that back surgery had been recom- 30XVI(J)11 Exclusion of Evidence mended before accident. 30k1056 Prejudicial Effect [10] Appeal and Error 30 1050.1(1) 30k1056.1 In General 30k1056.1(1) k. In general. 30 Appeal and Error Most Cited Cases 30XVI Review In appeal of judgment based on an error of the 30XVI(J) Harmless Error trial court in admitting or excluding evidence, the 30XVI(J)10 Admission of Evidence appellate court must examine the entire record to 30k1050 Prejudicial Effect in General determine whether the disputed evidence controlled 30k1050.1 Evidence in General the judgment. 30k1050.1(1) k. In general. Most Cited Cases [12] Appeal and Error 30 714(5)

Appeal and Error 30 1056.1(1) 30 Appeal and Error 30X Record 30 Appeal and Error 30X(N) Matters Not Apparent of Record 30XVI Review 30k714 Matters Appearing Otherwise 30XVI(J) Harmless Error Than by Record 30XVI(J)11 Exclusion of Evidence 30k714(5) k. Briefs. Most Cited Cases 30k1056 Prejudicial Effect Court of Appeals cannot consider documents 30k1056.1 In General attached to an appellate brief that do not appear in 30k1056.1(1) k. In general. the record. Most Cited Cases To obtain reversal of a judgment based upon an [13] Appeal and Error 30 714(5) error of the trial court in admitting or excluding 30 Appeal and Error evidence, appellant must show: (1) the trial court 30X Record erred, and (2) the error was reasonably calculated to 30X(N) Matters Not Apparent of Record cause and probably did cause the rendition of an 30k714 Matters Appearing Otherwise

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Than by Record 30k714 Matters Appearing Otherwise 30k714(5) k. Briefs. Most Cited Cases Than by Record Court of Appeals must hear and determine a 30k714(5) k. Briefs. Most Cited Cases case on the record as filed, and it may not consider Attachment of documents as exhibits or appen- documents attached as exhibits to briefs. dices to briefs is not a formal inclusion in the re- cord on appeal and, thus, the documents cannot be [14] Appeal and Error 30 907(5) considered.

30 Appeal and Error [17] Appeal and Error 30 230 30XVI Review 30XVI(G) Presumptions 30 Appeal and Error 30k906 Facts or Evidence Not Shown by 30V Presentation and Reservation in Lower Record Court of Grounds of Review 30k907 In General 30V(B) Objections and Motions, and Rulings 30k907(5) k. Contents of docu- Thereon ments omitted from record. Most Cited Cases 30k230 k. Necessity of timely objection. Court of Appeals could not appraise bus Most Cited Cases driver's assignment of error that trial court erred in admitting expert testimony regarding matters not Appeal and Error 30 231(5) disclosed by van driver in interrogatory responses 30 Appeal and Error in suit brought by bus driver against van driver for 30V Presentation and Reservation in Lower negligence allegedly resulting in vehicle accident, Court of Grounds of Review and thus Court had to presume that proceedings and 30V(B) Objections and Motions, and Rulings judgment below were regular and correct, where Thereon bus driver did not include interrogatories and an- 30k231 Necessity of Specific Objection swers in record. 30k231(5) k. Nature of evidence in [15] Appeal and Error 30 907(5) general. Most Cited Cases

30 Appeal and Error Appeal and Error 30 241 30XVI Review 30 Appeal and Error 30XVI(G) Presumptions 30V Presentation and Reservation in Lower 30k906 Facts or Evidence Not Shown by Court of Grounds of Review Record 30V(B) Objections and Motions, and Rulings 30k907 In General Thereon 30k907(5) k. Contents of docu- 30k234 Necessity of Motion Presenting ments omitted from record. Most Cited Cases Objection Court of Appeals must presume documents 30k241 k. Sufficiency and scope of missing from record would sustain trial court's rul- motion. Most Cited Cases ing. To have preserved error in trial court's failure [16] Appeal and Error 30 714(5) to declare mistrial after jury heard irrelevant and prejudicial evidence, injured bus driver must have 30 Appeal and Error made valid, timely, and specific request, motion, or 30X Record objection. Rules App.Proc., Rule 33. 30X(N) Matters Not Apparent of Record [18] Appeal and Error 30 969

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30 Appeal and Error ing a shuttle for Quik–Park. Till appeals a take- 30XVI Review nothing judgment based on the jury's verdict. We 30XVI(H) Discretion of Lower Court affirm. 30k969 k. Conduct of trial or hearing in general. Most Cited Cases Fact Summary Trial court's denial of a motion for mistrial will On December 23, 1993, Thomas approached not be disturbed on appeal except on a showing of the terminal with a van full of holiday travelers. an abuse of discretion. She was driving up the ramp and noticed Till's City of Houston bus. As she drove past the bus, the [19] Trial 388 131(3) overhang over her door hit Till's left side mirror. She testified she could not stop at that point to sur- 388 Trial vey the damage, because she would be blocking the 388V Arguments and Conduct of Counsel entrance to the terminal. She called the Quik Park 388k131 Objections and Exceptions dispatcher and circled around the terminal and 388k131(3) k. Requisites and sufficiency. came back to the scene. Thomas was not injured, Most Cited Cases and she over-heard Till tell the police he was not Trial court did not abuse its discretion failing injured. The investigating police officer's accident to declare mistrial in injured bus driver's suit report reflects there were no injuries. against van driver for injuries allegedly sustained in accident, even though bus driver argued that testi- Peggy Kellum, the manager for Quik Park, test- mony of doctor violated motion in limine, where ified the only damage to Thomas's van was a scrape bus driver's attorney did not state grounds for ob- which was removed with Compound W. There was jection or explain for what type of “motion” he was no expense associated with the repair of the Quik moving. Park van.

*732 William Chu, Addison, for Appellant. Till sued Thomas and Quik Park, alleging that Thomas's negligence proximately caused his need Erin E. Lunceford, Houston, for Appellees. for back fusion surgery. At trial, Thomas presented evidence from Till's neurosurgeon, David Baskin, Panel consists of Justices O'CONNOR, HEDGES, M.D., that Till had been advised, before the acci- FN* dent, he needed back surgery. Dr. Baskin also re- and PRICE. ferred Till to a psychiatrist for pain management before this accident. FN* The Honorable Frank C. Price, former Justice, Court of Appeals, First District of The jury decided Thomas was not negligent, Texas at Houston, participating by assign- and Till suffered no damages. Till appeals the jury's ment. verdict.

No Negligence OPINION In point of error one, Till argues the jury's find- FRANK C. PRICE, Justice (Assigned). ing of no negligence was against the great weight Appellant, Glenn Till, drove a bus full of and preponderance of the evidence given Thomas's people from the economy parking lot at Bush Inter- repeated testimony that she misjudged the distance continental Airport. He was parked in front of the between the two vehicles. terminal when his bus was struck by a van operated by appellee, Lora Williams Thomas, who was driv- [1][2][3][4] When a party attacks a jury finding

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concerning an issue upon which he had the burden but misjudged the space between the two vehicles. of proof, he must demonstrate that the adverse find- ing is against the great weight and preponderance [9] Also, Till did not prove that the accident of the evidence. *733Honeycutt v. Billingsley, 992 with Thomas was the cause of his back injuries. S.W.2d 570, 578 (Tex.App.—Houston [1st Dist.] There was ample testimony from Dr. Baskin that 1999, pet. denied). In reviewing a challenge that the the back surgery had been recommended before the jury finding is against the great weight and prepon- accident. Till did not prove Thomas proximately FN1 derance of the evidence, we must examine the re- caused his injuries. cord to determine if there is some evidence to sup- FN1. Till did not appeal the jury's decision port the finding, and then determine, in light of the to award him no damages. entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the We overrule point of error one. evidence as to be clearly wrong and manifestly un- just. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) Expert Testimony ; Hollander v. Capon, 853 S.W.2d 723, 726 In point of error two, Till asserts the trial court (Tex.App.—Houston [1st Dist.] 1993, writ denied). erred by allowing Thomas's expert to testify about We cannot reverse merely because we conclude that matters that were not disclosed in interrogatory re- the evidence preponderates toward an affirmative sponses. answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Honeycutt, 992 S.W.2d at 578. Nor can Standard of Review we substitute our opinion for that of the trier of fact [10][11] To obtain reversal of a judgment and determine that we would reach a different con- based upon an error of the trial court in admitting or clusion. Hollander, 853 S.W.2d at 726. excluding evidence, appellant must show (1) the tri- al court erred, and (2) the error was reasonably cal- [5][6][7] The occurrence of an accident or a culated to cause and probably did cause the rendi- collision is not of itself evidence of negligence. tion of an improper judgment. Gee v. Liberty Mut. Rankin v. Nash–Texas Co., 129 Tex. 396, 105 Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). The S.W.2d 195, 199 (1937); Smith v. Cent. Freight appellate court must examine the entire record to Lines, Inc., 774 S.W.2d 411, 412 determine whether the disputed evidence controlled (Tex.App.—Houston (14th Dist.) 1989, writ the judgment. Id. denied). The plaintiff must prove specific acts of negligence on the part of the driver and must also [12][13] We cannot consider documents at- prove proximate cause. Smith, 774 S.W.2d at 412. tached to an appellate brief that do not appear in the Whether the plaintiff succeeds in proving negli- record. $429.30 v. State, 896 S.W.2d 363, 365 gence and proximate cause by a preponderance of (Tex.App.—Houston [1st Dist.] 1995, no writ). the evidence is then within the jury's province to This Court must hear and determine a case on the determine. Id. record as filed, and may not consider documents at- tached as exhibits to briefs. RWL Const., Inc. v. Er- [8] While it is true Thomas admitted she mis- ickson, 877 S.W.2d 449, 451 (Tex.App.—Houston judged the distance due to the overhang on the [1st Dist.] 1994, no writ). door, this admission, in and of itself, does not con- stitute negligence. She testified she was not speed- [14][15] We cannot appraise Till's assignment ing, and she was not in any type of hurry. She saw of error. We must presume the proceedings and Till and attempted to avoid him, but simply judgment below were regular and correct. Till had “misjudged” the distance. She was paying attention, the burden to supply us with an appellate record demonstrating the trial court abused its discretion in

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admitting Dr. Baskin's testimony because Thomas Baskin's response was as follows: did not supplement her answers as required. *734 Christiansen v. Prezelski, 782 S.W.2d 842, 843 Till's attorney: Objection, Your Honor. (Tex.1990). Till was obliged to include in the ap- The Court:ney: Sustained. pellate record the interrogatories and answers. He did not. We must presume the missing documents Till's attorney: Move for a motion, Your Honor. would sustain the trial court's ruling. University of Texas at Austin v. Hinton, 822 S.W.2d 197, 202 The Court:ney: Overruled. (Tex.App.—Austin 1991, no writ). Till argues Baskin's comment violated the ex- [16] Till has attached, as an appendix to his isting motion in limine excluding testimony about brief, Thomas's answers to interrogatories. The dis- earlier motor vehicle accidents. The motion in covery responses, however, were not included in limine, however, was not included in the appellate the record of this case on appeal. The attachment of record and shall not be considered. See RWL documents as exhibits or appendices to briefs is not Const., Inc., 877 S.W.2d at 451. a formal inclusion in the record on appeal and, thus, the documents cannot be considered. Perry v. Till's attorney did not state the grounds for his Kroger Stores Store No. 119, 741 S.W.2d 533, 534 objection or explain for what type of “motion” he (Tex.App.—Dallas 1987, no writ). was moving. See Haney v. Purcell Co., Inc., 796 S.W.2d 782, 789 (Tex.App.—Houston [1st Dist.] We overrule point of error two. 1990, writ denied) (holding that objection must be specific enough to inform trial court of reason for Mistrial objection.) There has been no showing that the trial In point of error three, Till asserts the trial court abused its discretion. court erred by failing to declare a mistrial after the jury heard irrelevant and prejudicial evidence We overrule point of error three. against him. We affirm the judgment of the trial court. [17][18] To preserve error, Till must make a valid, timely, and specific request, motion, or ob- Tex.App.–Houston [1 Dist.],1999. jection. TEX.R.APP. P. 33; Matter of Bates, 555 Till v. Thomas S.W.2d 420, 432 (Tex.1977); United Cab Co. v. 10 S.W.3d 730 Mason, 775 S.W.2d 783, 785 (Tex.App.—Houston END OF DOCUMENT [1st Dist.] 1989, writ denied.). The court's denial of a motion for mistrial will not be disturbed on ap- peal except on a showing of an abuse of discretion. City of Jersey Village v. Campbell, 920 S.W.2d 694, 698 (Tex.App.—Houston [1st Dist.] 1996, writ denied).

[19] While questioning Dr. Baskin, Till's attor- ney asked Baskin what Till's complaints were when he was examined on June 1, 1993. Baskin respon- ded, “Well, at that time he had been involved in a motor-vehicle accident.” The exchange between Till's attorney and the trial court immediately after

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120III(A) General Rules of Construction 120k93 k. Intention of parties. Most Cited Court of Appeals of Texas, Cases Eastland. In construing a deed, the court endeavors to Jimmy Max WRIGHT and Fairy Lynn Wright Ap- carry into effect the intent of the parties as ex- pellants, pressed therein; it is not the intent that the parties v. may have had but failed to express in the instru- E.P. OPERATING LIMITED PARTNERSHIP et ment, but it is the intent that is expressed by the in- al, Appellees. strument.

No. 11–96–00261–CV. [3] Mines and Minerals 260 55(4) Oct. 1, 1998. Rehearing Overruled Nov. 25, 1998. 260 Mines and Minerals 260II Title, Conveyances, and Contracts Former owners of tracts brought declaratory 260II(B) Conveyances in General judgment action to quiet title to the mineral estate 260k55 Grants and Reservations of Min- under tracts, claiming title by virtue of reservation erals and Mining Rights and exception contained in deeds to present owners 260k55(4) k. Nature of estate granted and their predecessor. The 32nd District Court, No- or reserved. Most Cited Cases lan County, Glen Harrison, J., entered judgment for Reservation and exception contained in deeds, present owners, and former owners appealed. The which included statement that conveyance was Court of Appeals, Arnot, C.J., held that: (1) deeds made “subject to any and all reservations presently did not reserve mineral estate, and (2) revivor was of record including without limitation that property not sufficiently pleaded. reserved” by former owners, did not effectively re- serve any mineral interests in former owners, but Affirmed. merely recognized prior reservation that no longer West Headnotes existed due to inadvertent foreclosure of mineral in- terests. [1] Mines and Minerals 260 56 [4] Mines and Minerals 260 55(8) 260 Mines and Minerals 260II Title, Conveyances, and Contracts 260 Mines and Minerals 260II(C) Leases, Licenses, and Contracts 260II Title, Conveyances, and Contracts 260II(C)1 In General 260II(B) Conveyances in General 260k56 k. Nature of mining leases and 260k55 Grants and Reservations of Min- agreements. Most Cited Cases erals and Mining Rights There was no cause of action for negligence, 260k55(8) k. Remedies. Most Cited nor for gross negligence, in leasing of mineral in- Cases terest. Former owners who claimed that their mineral interest in property was revived by actions of [2] Deeds 120 93 present owners were required to properly plead and prove revivor. Vernon's Ann.Texas Rules 120 Deeds Civ.Proc., Rule 47. 120III Construction and Operation

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[5] Mines and Minerals 260 55(7) Eugene Fullwood; Mary Letha Fullwood; Clifford C. *685 Etheredge, Sr.; and Hilda Etheredge. They 260 Mines and Minerals are the successors in title to the five individual 260II Title, Conveyances, and Contracts tracts, having made individual purchases from the 260II(B) Conveyances in General subsidiary of a bank which had foreclosed its deed 260k55 Grants and Reservations of Min- of trust lien and acquired the property by substitute erals and Mining Rights trustee's deed. The Wrights acknowledge that the 260k55(7) k. Conveyance, abandon- foreclosure of the deed of trust lien also foreclosed ment, or other termination of rights granted or re- their mineral interest, but they claim that the recita- served. Most Cited Cases tions in other instruments filed for public record re- In cases of revivor of mineral interest, there is ferring to the Wrights' prior reservation of minerals an acceptance under an oil and gas lease (such as a establishes, as a matter of law, that the parties in- lease royalty payment of a lease that has lapsed) in tended for the Wrights to retain their minerals. Util- addition to an instrument in writing (such as a rati- izing well-established rules for construction of in- fication of a unit or pooling agreement). struments, we affirm the judgment of the trial court. FN1 *684 Donald M. Hunt, Gary M. Bellair, Carr Hunt Wolfe & Joy, Attorneys At Law, Lubbock, Maxie FN1. In Lee M. Bass, Inc. v. Shell Western L. Houser, Attorney At Law, Corpus Christi, for E & P, Inc., 957 S.W.2d 159 Appellants. (Tex.App.—San Antonio 1997, no writ), the court recited the appropriate standards Rick Mayer, C. Clint Adams, Dallas, Charles E. of review: Jones, Charles E. Jones Jr. & Associates, Attorneys At Law, Rod E. Wetsel, Steakley & Wetsel, Attor- In reviewing a summary judgment on ap- neys At Law, Sweetwater, for Appellees. peal, we must determine whether the movant met its burden of showing that Before ARNOT, C.J., and DICKENSON and no genuine issue of material fact exists WRIGHT, JJ. and that the movant is entitled to judg- ment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d OPINION 546, 548–49 (Tex.1985); J.M. Huber ARNOT, Chief Justice. Corp. v. Santa Fe Energy Resources, This appeal arises from a declaratory judgment Inc., 871 S.W.2d 842, 845 action brought to quiet title to the mineral estate un- (Tex.App.—Houston [14th Dist.] 1994, der five tracts of land in Nolan County. Appellants, writ filed). In determining whether a ma- Jimmy Max Wright and Fairy Lynn Wright, origin- terial fact issue exists to preclude sum- ally owned both the surface and the mineral estate. mary judgment, evidence favoring the The Wrights now claim title to all of the mineral es- non-movant is taken as true, and all reas- tate by virtue of a reservation and exception con- onable inferences are indulged in the tained in a deed they executed to appellees' prede- non-movant's favor. Id. When both cessor in title. Appellees are: E.P. Operating Lim- parties file motions for summary judg- ited Partnership; Enserch Exploration, Inc.; Enserch ment and one such motion is granted, we Corporation; The Jay Etheredge Trust; Jay Stanley must review all of the issues presented Etheredge; John Oscar Martin; Helen C. Martin; and, if reversible error is found, render Randall Bankhead; Mary Elizabeth Bankhead; such judgment as the trial court should Gaines H. Price; The Callie Michelle Price Trust;

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have rendered, including rendering judg- in any deed conveying the Real Property by the ment for the other movant. Jones v. [Wrights] to the [Olivers]. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Santa Fe Energy Co. v. Bax- This assumption agreement was not filed for ter, 783 S.W.2d 643, 645 public record. In their deed to the Olivers, dated (Tex.App.—Houston [14th Dist.] 1989, May 21, 1982, the Wrights made the following ex- writ denied). ception: Grantors do hereby except and reserve unto Summary judgment is appropriate in themselves, their heirs, successors and assigns all cases involving the interpretation of an of the oil, gas and other minerals on, in and un- unambiguous document. Bishop v. Na- der all of the land described in this instrument, tional Loan Investors, L.P., 915 S.W.2d together with the right of ingress and egress for 241, 245 (Tex.App.—Fort Worth 1995, the purpose of exploring for, drilling for, produ- writ denied); Tri County Service Co. v. cing and marketing said oil, gas and other miner- FN2 Nationwide Mutual Ins. Co., 873 S.W.2d als. (Emphasis added) 719, 721 (Tex.App.—San Antonio 1993, writ denied). FN2. The deed also states: Although there are a number of transactions The excepted and reserved interest is and parties involved, the chain of title in this case is subject to any valid, recorded oil and gas not complicated. The Wrights owned and operated and other mineral lease or leases which a farming operation on five different tracts of land cover this interest, but covers and in- in Nolan County. In 1981, the Wrights executed a cludes all delay rentals and royalties, and deed of trust to Mercantile Bank pledging the sur- any other rights and payments due or to face and the minerals under all five tracts to secure become due or which may hereafter be one promissory note. About a year later, the payable or paid under the terms of said Wrights agreed to sell the farming operation to lease or leases to the lessor therein, his Floyd Oliver, Layton Oliver, and O–O, Incorpor- heirs, successors and assigns, insofar as ated. said lease or leases cover all or any part Under an assumption agreement dated May 4, of the land described in this deed. Upon 1982, the Olivers agreed to assume the Wrights' ob- termination of any/or all of such leases ligations to Mercantile Bank, and the Wrights as to any land described herein, the in- agreed to transfer the farming equipment and the terest of said lessee, his heirs, successors surface estate of the five tracts to the Olivers. Mer- and assigns, shall revert to grantors cantile Bank agreed not to foreclose upon the min- herein, their heirs, successors and as- eral estates and to release the Wrights from all liab- signs. Notwithstanding anything herein ility. The assumption agreement contained the fol- to the contrary, the Grantors, their heirs, lowing recitation: successors, and assigns shall pay reason- able damages to the grantees, their heirs, Notwithstanding anything herein or in any oth- successors, and assigns for any damage er documents or instruments executed in connec- done to the surface estate of the land tion herewith to the contrary, the [Wrights] shall herein conveyed as a result, direct or in- not convey any rights, titles or interests in and to direct, of any activities of Grantors, their the mineral estate of the Real Property, which heirs, successors, and assigns, under- mineral estate shall be reserved to the [Wrights] taken with respect to the mineral estate

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herein reserved. the Property: including, without limitation, that certain reservation of all oil, gas and minerals in, *686 The Wrights did not receive a partial re- on and under the property reserved by Jimmy lease of the deed of trust lien covering the reserved Max Wright, et al in Warranty Deed to Floyd minerals from Mercantile. Oliver, et al, dated May 21, 1982, recorded in Volume 255, Page 615, Deed Records, Nolan As further evidence of the Wright's exercise of County, Texas. (Emphasis added) ownership over the minerals, the summary judg- ment evidence shows that the Wrights subsequently This dispute arose when appellees granted conveyed the minerals under the five tracts to leases to conduct seismic operations on their lands Elmer O. Mahon, Fairy Lynn Wright's father, by and filed an affidavit of ownership as to the mineral warranty deed in June of 1982. Mr. Mahon died in estate under their respective surface estates. In a de- 1994, and the Wrights reacquired the mineral in- claratory judgement action, the court was asked to terests by inheritance. decide who owned the minerals. After this dispute arose, Oregon, Inc. executed a quitclaim deed con- Approximately five years after assuming the veying any interest it had in the minerals under the loan, the Olivers defaulted on their obligations. On five tracts to the Wrights. June 3, 1987, Mbank Dallas, successor in interest to Mercantile Bank, foreclosed its deed of trust lien on The Wrights acknowledge that Mbank inad- the five tracts and received a substitute trustee's vertently foreclosed on their mineral interest when FN3 deed. The trustee's deed did not exclude the it foreclosed on its deed of trust lien. The Wrights minerals, did not refer to the prior reservation of argue that the trial court erred in granting a sum- the minerals by the Wrights, and did not mention mary judgment holding that title to the minerals is the assumption agreement. On October 29, 1987, vested in appellees because (1) Oregon specifically Mbank conveyed the five tracts of land to its subsi- reserved the mineral interest in each special war- diary, Oregon, Inc. Again, no reference to the reser- ranty deed and (2) Oregon's deed revived the prior vation of the mineral estate was made. FN4 mineral exception.

FN3. The deed of trust instrument was not FN4. See Ellis v. Waldrop, 656 S.W.2d included in the summary judgment evid- 902, 904 (Tex.1983), in which the court ence. observed:

From October 1987 to January 1988, Oregon, In A.H. Belo Corp. v. Sanders, 632 Inc. made five separate conveyances of the property S.W.2d 145 (Tex.1982), we reaffirmed to five different grantees, who are appellees herein. the long-standing general rule in Texas Each special warranty deed contained the following that in order to recover damages for the language: “This conveyance is made subject and disparagement of title, the plaintiff must subordinate to ... (the “Permitted Exceptions”) de- allege the loss of a specific sale. Further- scribed in Exhibit “B” attached. Under a heading of more, this Court has established that a “Permitted Exceptions,” Exhibit “B” contained the cause of action to recover damages for following language: the failure to release a purported, though not actual, property interest is a cause of Any and all valid and subsisting leases, reserva- action for slander of title. No Texas case tions, severances of any and all oil, gas and min- has ever awarded damages under the erals in, on, and under the Property which are rubric “cloud on title.” A suit to remove presently of record and which affect or relate to a cloud from title is a suit for a specific,

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equitable remedy. (Citations omitted) [1] As this court observed in Sun Exploration and Production Company v. Pitzer, 822 S.W.2d 294 See Sadler v. Duvall, 815 S.W.2d 285, (Tex.App.—Eastland 1991, writ den'd), Texas does 293 n. 2 (Tex.App.—Texarkana 1991, not recognize a cause of action for negligence in writ den'd), in which the court stated: leasing. Consequently, without negligence, there FN5 can be no cause of action for gross negligence. Slander of title is defined as a false and malicious statement made in disparage- FN5. See Transportation Insurance Com- ment of a person's title to property which pany v. Moriel, 879 S.W.2d 10 (Tex.1994); causes him special damage. A cloud on Wal–Mart Stores, Inc. v. Alexander, 868 title exists when an outstanding claim or S.W.2d 322 (Tex.1993); Williams v. Steves encumbrance is shown which, on its Industries, Inc., 699 S.W.2d 570 face, if valid, would affect or impair the (Tex.1985). title of the owner of the property. It is a suit for a specific equitable remedy. We note that the Wrights did not plead or seek (Citations omitted) reformation of any instrument and did not plead FN6 fraud, estoppel, mutual mistake, ambiguity, or Also see Exploracion De La Estrella So- any cause of action that would allow the offer of loataria Incorporacion v. Birdwell, 858 extraneous evidence to explain the language in the S.W.2d 549, 553 (Tex.App.—Eastland Oregon deeds. Consequently, the trial court was 1993, no writ), in which this court said: called upon to interpret the Oregon deeds and de- termine as a matter of law the effect of their lan- A suit to cancel an oil and gas lease has FN7 guage and the estate they passed. been described as a suit to quiet title. Al- though he must base his action on the FN6. Absent pleadings and allegations of strength of his own title, the plaintiff in a ambiguity, the document will be construed suit to quiet title does not have to prove based on the express language used within superior right to the property by tracing the four corners of the instrument and not his title to the sovereignty. (Citations on extraneous writings. Henderson v. omitted) Parker, 728 S.W.2d 768 (Tex.1987); Odeneal v. Van Horn, 678 S.W.2d 941 *687 In their first amended petition, the (Tex.1984); Shriner's Hospital for Wrights sued for a declaratory judgment to estab- Crippled Children of Texas v. Stahl, 610 lish that they were the mineral owners and for dam- S.W.2d 147 (Tex.1980); and Frost Nation- ages arising from the slander of title (for executing al Bank of San Antonio v. Newton, 554 and filing an affidavit of ownership and executing S.W.2d 149 (Tex.1977). an agreement to allow seismic operations and op- tions to grant oil and gas leases), from the unlawful FN7. In Patrick v. Barrett, 734 S.W.2d 646 subsurface trespass, and from the creation of a (Tex.1987), the court stated the distinc- cloud on their title by negligently researching the tions between an exception and a reserva- title and leasing the minerals. The Wrights urged tion. It is manifest that an exception does that these acts and omissions were done with such not pass title itself; instead it operates to conscious indifference as to amount to gross negli- prevent the excepted interest from passing gence. Appellees filed a counterclaim asking for a at all. Pich v. Lankford, 157 Tex. 335, 302 declaratory judgment, for the removal of the cloud S.W.2d 645, 648 (Tex.1957). On the other on their title, and for damages for slander of title. hand, a reservation is made in favor of the

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grantor, wherein he reserves unto himself In seeking to ascertain the intention of royalty interest, mineral rights, and other the parties, the court must attempt to rights. Benge v. Scharbauer, 152 Tex. 447, harmonize all parts of a deed, since the 259 S.W.2d 166, 167–68 (Tex.1953). parties to an instrument intend every clause to have some effect and in some [2] In construing a deed, the court endeavors to measure to evidence their agreement. carry into effect the intent of the parties as ex- Woods v. Sims, 154 Tex. 59, 273 S.W.2d pressed therein. It is not the intent that the parties 617, 620 (1954). On the other hand, we may have had but failed to express in the instru- realize that irreconcilable conflicts do ment, but it is the intent that is expressed by the in- exist; therefore, when it is impossible to strument. Pierson v. Sanger, 93 Tex. 160, 53 S.W. harmonize internally inconsistent ex- 1012 (Tex.1899); Harlan v. Vetter, 732 S.W.2d 390 pressions of intent, the court must give FN8 (Tex.App.—Eastland 1987, writ ref'd n.r.e.). effect to the “controlling language” of the deed and not allow ambiguities to FN8. In Alford v. Krum, 671 S.W.2d 870 “destroy the key expression of intent” in- (Tex.1984), overruled on other grounds by cluded within the deed's terms. Texas Luckel v. White, 819 S.W.2d 459 Pacific Coal & Oil Co. v. Masterson, (Tex.1991), the court recited the long- 160 Tex. 548, 334 S.W.2d 436, 439 standing rules of interpretation and con- (1960). struction controlling the disposition of this cause: *688 [3] The Wrights urge that the language in the Oregon deeds to the individual appellees The primary duty of the courts in inter- (referring by recital to the prior mineral reservation preting a deed is to ascertain the intent by the Wrights in their deed to the Olivers) had the of the parties. Terrell v. Graham, 576 effect, as a matter of law, of excluding the minerals S.W.2d 610, 612 (Tex.1979); McMahon from the conveyance. We disagree. The recitals v. Christmann, 157 Tex. 403, 303 purport to state why the exception was made, not to S.W.2d 341, 344 (1957). This rule of make an exception or reservation of the mineral in- construction, however, must be modified terest. See Pich v. Lankford, 157 Tex. 335, 302 with the restriction that it is not the in- S.W.2d 645 (Tex.1957). The Wrights recognize that tention that the parties may have had but Mbank inadvertently foreclosed on their mineral in- failed to express in the instrument, but it terest. Consequently, Oregon was vested with full is the intention that is expressed by said title to both the surface and mineral estates. The instrument. That is, the question is not language stating that the conveyances were made what the parties meant to say, but the subject to any and all reservations presently of re- meaning of what they did say. Canter v. cord including without limitation that property re- Lindsey, 575 S.W.2d 331, 334 served by the Wrights does not reserve any mineral (Tex.Civ.App.—El Paso 1978, writ ref'd interest in Oregon's predecessors in title, but rather n.r.e.); Davis v. Andrews, 361 S.W.2d recognizes that reservations have been made in the 419, 423 (Tex.Civ.App.—Dallas 1962, past and are in the chain of title. This language is writ ref'd n.r.e.). Finally, “[w]e must more in the form of limiting the warranty than re- construe this language as it is written serving an interest. and we have no right to alter it by inter- polation or substitution.” Dahlberg v. The Wrights argue that there is a material ques- Holden, 150 Tex. 179, 238 S.W.2d 699, tion of fact as to the parties' intent to convey the 701 (1951).

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minerals. The Wrights would direct the court's at- existence. Consequently, the quitclaim deed from tention to the other instruments of record as well as Oregon was ineffective to transfer title to the min- the deemed admissions and other evidence submit- erals because Oregon did not own those minerals ted for the purposes of summary judgment evid- when the quitclaim deed was executed. ence. The affidavit of Mbank's vice president, who negotiated the sale, stated that each person with [4] Next, we address the Wrights claim that, by whom the bank negotiated a sale from Oregon was their subsequent actions, appellees have revived the told that no mineral interest was to be conveyed. mineral interest. The subsequent execution of a Subsequent conveyances by appellees recognized formal document, even to a third person, which ex- that no mineral interest was conveyed. The Wrights pressly recognizes in clear language the validity of assert that, by deemed admissions, the summary a lifeless mineral deed or lease has been held to judgment evidence shows that the grantees from give it life. The effect of invoking the “revivor” Oregon were told that they would not receive any doctrine is the granting of a new estate in land. See of the minerals. Yet, under the pleadings in this Loeffler v. King, 149 Tex. 626, 236 S.W.2d 772 case, this court is constrained in its interpretation to (Tex.1951). review only the deed from Oregon. As a matter of [5] The Wrights urge that, by accepting Ore- law, a reference by recital to a mineral interest that gon's deeds excepting the mineral reservation that has previously been foreclosed does not in effect had previously been foreclosed, appellees have ef- reserve that interest from the conveyance. Although fectively revived the *689 Wrights' mineral in- the parties did not intend to convey the minerals, terest. We disagree. The doctrine of revivor is not we must ascertain what the language of the instru- applicable in this case. In cases of revivor, there is ment says, not what the parties meant for it to say. an acceptance under an oil and gas lease (such as a Appellees would have us read the words “valid lease royalty payment of a lease that has lapsed) in and subsisting” in connection with the words addition to an instrument in writing (such as a rati- “leases or reservations or severances.” The Wrights fication of a unit or pooling agreement). As such, would have us ignore these modifiers. We under- revivor has the attributes of estoppel and must be stand the plain meaning of these modifiers to be pleaded under TEX.R.CIV.P. 47 or 94. The doc- that, if there is an oil and gas lease in effect at the trine of revivor was not pleaded by the Wrights. time of the conveyance, then the property conveyed There were no fact issues presented by the sum- is subject to the burden of that lease. Whether the mary judgment evidence to show that the sub- adjectives “valid and subsisting” modify the words sequent grantees have made a formal recognition of “severances” or “reservations” does not matter. Un- the validity of the Wrights' prior mineral reserva- der either interpretation, clearly the recital is to a tion. mineral estate that has been foreclosed, the titles In their final point of error, the Wrights urge have been merged, and the interest is no longer in that they should recover attorney's fees because existence. The Wrights next call the court's atten- they should have prevailed on their declaratory tion to the language “including without limitation.” judgment action. Because the trial court did not err However, this is language of a limitation to war- in granting judgment for appellees, this point is ranty and does not create or convey any mineral in- overruled. All of the Wrights' points have been con- terest. sidered, and they are overruled. As a matter of law, the deeds from Oregon to The judgment of the trial court is affirmed. appellees did not reserve the mineral estate by ref- erence to a mineral interest that was no longer in Tex.App.–Eastland,1998.

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Wright v. E.P. Operating Ltd. Partnership 978 S.W.2d 684, 142 Oil & Gas Rep. 217

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