Pinnacle Gas Treating, Inc. v. Read

69 S.W.3d 240, 2002 Tex. App. LEXIS 167, 2002 WL 24390

• Court: Court of Appeals of Texas
• Decided: January 9, 2002
• Docket: 10-00-200-CV
• Status: Published

Opinions

MEMORANDUM OPINION

BILL VANCE, Justice.

This is a condemnation case. Pinnacle Gas Treating, Inc. (“Pinnacle”), the con-demnor, appeals that: (1) the condemnation proceeding it filed should not have been dismissed for want of jurisdiction; and (2) the jury charge and evidence on damages was improper. We will affirm the judgment.

BACKGROUND

Pinnacle, a gas utility regulated by statute,¹ planned to construct two new natural gas pipelines across a 61.92 acre tract in Leon County belonging to Raymond Read and Mark Read (“Appellees”) and mortgaged to Thomas Fetzer, II. Pinnacle sought to condemn a fifty-foot-wide permanent easement along a centerline of approximately 1,242 feet. It also needed a temporary construction easement fifty feet on either side of the permanent easement. When Pinnacle and Appellees could not reach an agreement, in April 1997 Pinnacle filed a petition to condemn the property and establish the easements. See Tex. Util.Code Ann. § 181.004 (Vernon 1998) (formerly codified as Tex.Rev.Civ. Stat. Ann. art. 1436) (Vernon 1997); Tex. PROP. Code. Ann. § 21.012 (Vernon 1984) (formerly codified as Tex.Rev.Civ. Stat. Ann. art. 3264).

Three “Special Commissioners” were appointed to assess Appellees’ damages. Tex. Prop.Code. Ann. § 21.014 (Vernon 1984). A hearing was conducted by the commissioners, who afterward awarded Appellees $7,527 for the easements. Id. § 21.015 (Vernon 1984). In May 1997, Pinnacle deposited the $7,527 with the clerk of the court along with a bond in the same amount, and obtained a writ of possession for the easements. Id. § 21.021 (Vernon 1984). Pinnacle proceeded to lay the pipeline across Appellees’ property. Pinnacle also filed an objection to the amount of damages and demanded its statutory right to a trial. Id. § 21.018 (Vernon 1984) (“the court shall cite the adverse party and try the case in the same manner as other civil causes”).

Appellees filed an objection to the commissioners’ award and also a motion to dismiss the proceeding. They sought damages that resulted from unauthorized possession, as well as attorney’s fees and expenses. Id. §§ 21.019(c), 21.044. The basis for their motion was jurisdictional: the Order appointing the Special Commissioners was void.

Pinnacle had filed seven similar condemnation petitions with the district clerk in Leon County. Id. § 21.013(c) (Vernon Supp.2002). Following the statute, the clerk filed the eight petitions on a rotating basis in the three district courts in the county that the clerk served. Id. § 21.018(d) (Vernon Supp.2002). This proceeding and one other were filed in the 278th District Court, whose elected judge is Jerry A. Sandel. Three of the condemnation proceedings were filed in the 12th District Court, whose elected judge is William L. McAdams. The other three were filed in the 87th District Court, whose elected judge is Sam B. Bournias. Pinnacle then presented eight orders to Judge Bournias, who appointed the same individuals as the commissioners in each case. The Commissioners took the oath and gave notice of the hearing. Id. §§ 21.014-.016. Appellees appeared at the hearing before the Special Commissioners and presented evidence.

Appellees urged that appointment of Special Commissioners by a judge other than the regular elected judge of the court to which the proceeding was assigned effectively circumvented the requirement of section 21.013(d) that cases be assigned among the district courts on a rotating basis and violated section 21.014(a) which requires that the “judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned shall appoint three ... special commissioners.” Id. §§ 21.013(d), 21.014(a).

Judge Sandel heard the motion to dismiss in August 1999 and signed an Order dismissing the condemnation proceeding and ordering a trial to determine Appel-lees’ damages, attorney’s fees, costs, and expenses. Id. § 21.044. Pinnacle appealed, but we dismissed that appeal for want of jurisdiction.² Eventually, in April 2000 there was a jury trial. The jury awarded $63,462.50 in attorney’s fees, $3,413.65 in expenses, $2,550.00 in physical damages to the property, and $34,872.42 in damages from loss of use of the property (“lost profits”).³

Prior to the trial on damages, Pinnacle filed a new condemnation proceeding regarding the same property. The statutory procedure for appointing the commissioners was fully complied with. One day before trial, April 24, 2000, a new writ of possession was issued in the second condemnation proceeding. The parties agreed that the time period for damages in this trial was from the date of the first writ of possession to the date of the second.

PLEA TO THE JURISDICTION AND MOTION TO DISMISS

A threshold question is whether, for either of two reasons which are peculiar to this case, the second condemnation proceeding and writ of possession make Pinnacle’s issue concerning the validity of Judge Sandel’s order dismissing the cause an issue that we should not directly decide. First, we note that due to the second condemnation proceeding and writ of possession, the question of whether Pinnacle can acquire an easement for its pipeline in this case is moot. “Generally, an appeal is moot when the court’s action on the merits cannot affect the rights of the parties.” VE Corporation v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993).

Second, by filing the second condemnation proceeding before the resolution of the first, Pinnacle has created a potential quagmire. If we were to reverse, there would then be two identical condemnation proceedings, two commissioners’ awards, and two pending judicial trials on damages for a permanent taking, each with a different date by which to determine market value and other measures of damages.⁴ We cannot predict the potential legal difficulties that might arise for Appellees from this situation in attempting to collect damages for harm associated with the period of time between the two writs. We are reminded of that principle of equity which is that equity will not suffer right to be without a remedy. Baytown v. General Tel. Co., 256 S.W.2d 187, 190 (Tex.Civ.App.-Galveston 1953, writ ref'd n.r.e.); cf. Ray v. Peters, 422 S.W.2d 615, 616 (Tex.Civ.App.-Waco 1967, no writ.).

We conclude that based on mootness and equity, Pinnacle’s issue on the dismissal should be overruled. Our decision is bolstered by the fact that to attempt to address the issue directly would raise concomitant matters which defy resolution under the current state of chapter twenty-one. Suffice it to say that by addressing the issue on jurisdiction, we cannot affect the second proceeding whereby Pinnacle has acquired an identical interest in Appel-lees’ property.

The issue regarding dismissal is overruled.

EYIDENCE OF LOST PROFITS AND THE JURY CHARGE

The jury awarded $34,872.42 in damages for loss of use of the property (“lost profits”) during the stipulated time period. Appellees offered testimony that since 1996, Mike Read had been in conversations with Sanderson Farms about building broiler houses for chickens on the 61.92 acres in question. Read testified that due to the pipeline, the north end of the property, 17.5 acres, was unusable for this chicken farm. He said he could not simply build the chicken houses planned for the north end on other parts of the property because of position requirements and buffer zone regulations. Meanwhile, chicken houses were built on the rest of the property, and a contract with Sanderson Farms was signed. Based on his costs and profit on the other acreage, he projected he lost profits of $34,872.42 during the time in question.

Pinnacle argues that Appellees cannot recover for these lost profits; and if that is so, the trial court erred in admitting evidence about lost profits, and also erred in submitting the question about them to the jury. Finally, Pinnacle complains the court should have submitted its five requested jury instructions which defined and limited what evidence the jury could consider for lost profits.

Lost Profits

Section 21.044, authorizing the trial court to award the condemnee “the damages that resulted from the temporary possession” of the property, does not define “damages.” Pinnacle argues these damages are limited to the rental value or diminished rental value of the land during the period of the temporary possession by the condemnor. We disagree.

The cases cited by Pinnacle are not on point. For example, in Houston Lighting v. Klein Indep. Sch. D., the court held that punitive damages were not recoverable because a condemnation case is statutory and not the tort of “trespass.” 739 S.W.2d 508, 519 (Tex.App.-Houston [14th Dist.] 1987, writ denied). The other cases Pinnacle cites either are not relevant to the present case, do not support Pinnacle’s argument, or support Appellees’ position.⁵ Furthermore, when a condemnation is partial, damages include injuries which “relatef] to the property owner’s ownership, use, or enjoyment of the” land. (Emphasis added). Tex. PROp.Code Ann. § 21.042(d). We see no reason to limit the meaning of “damages” in section 21.044 to exclude “use” of the land, in light of the Legislature’s definition in section 21.042(d).

In Southwestern Bell Telephone Co. v. Gordon, “impaired option marketability” was the measure of damages for wrongful temporary possession. 705 S.W.2d 767 (Tex.App.-Houston [14th Dist.] 1986, writ refd n.r.e.). Similarly, we find that damages under section 21.044 are not limited to the market or rental value of the property. Therefore, Appellees’ recovery for lost profits was proper.⁶

Pinnacle also argues: “As a matter of law, lost profits cannot be reeov-ered from a non-existent business.” But the two Supreme Court cases it cites do not support the argument. In Holt Atherton Industries, Inc. v. Heine, the Court said: “Recovery for lost profits does not require that the loss be susceptible of exact calculation.... The amount of the loss must be shown by competent evidence with reasonable certainty.... Opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained .... It is not necessary to produce in court the documents supporting the opinions or estimates.” 835 S.W.2d 80, 84 (Tex.1992). In Texas Instruments v. Teletron Energy Mgt., the Court applied a “reasonable certainty” test, ie., the inquiry is whether the evidence shows “that a loss of profits is the natural and probable consequences of the act or omission complained of, and their amount is shown with sufficient certainty.... [I]t is sufficient that there be data from which [profits] may be ascertained with a reasonable degree of certainty and exactness.” 877 S.W.2d 276, 279 (Tex.1994) (citing Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-99 (1938)). We find that Read’s testimony meets the requirements of Heine and Texas Instruments.

Appellees were entitled to recover for lost profits from the planned chicken farm. The trial court did not err in allowing evidence about lost profits, and Pinnacle’s complaints are overruled.

Jury Charge Instructions

Pinnacle complains about six jury instructions it requested but which the trial court denied. One of these was based on its “lost profits” complaint which we have overruled. The remaining five had to do with admonitory instructions worded in various ways about the necessity of the evidence being based on reasonable probabilities and competent data rather than mere speculation.

“Either party may present to the court and request written ... instructions ...; and the court may give them or a part thereof, or may refuse to give them, as may be proper.” Tex.R. Civ. P. 278. The court “shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict.” Id. 277. “The court shall submit the ... instructions ... which are raised by the written pleadings and the evidence.” Id. 278.

However, “the trial court [has] considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury.” State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex.1997) (citing Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974)). Requested instructions “should be submitted only if they are of some aid or assistance to the jury in answering the submitted issues.... Unnecessary instructions should not be given, even if they are correct statements of law.” Raiford v. May Dept. Stores Co., 2 S.W.3d 527, 533 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Unnecessary instructions single out or highlight issues, and in so doing run the risk of being comments on the weight of the evidence. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984).

We do not believe Pinnacle’s requested instructions were necessary to the jury’s understanding of the question it was asked. The charge on lost profits was:

Question No. 4: What sum of money, if any, do you find were the damages to. the Reads that resulted from the loss of the use of their property by Pinnacle Gas Treating, Inc. temporarily occupying the pipeline easement?

Consider the following elements of damages, if any, and none other:

1. Loss of use of land for poultry houses or livestock grazing.

2. Loss of any profits from Defendants’ business.

3. Loss of rental value.

4. Loss of crops or vegetation.

Pinnacle’s requested instructions were legally correct and could have been given. However, we cannot say the trial court abused its discretion in refusing them.

Even if the instructions should have been given, refusing to do so was harmless, i.e., it did not probably cause the rendition of an improper judgment. Tex. R.App. P. 44.1(a); Raiford, 2 S.W.3d at 530. The elements of damages and the evidence thereon was such that the requested instructions were not necessary.

Pinnacle’s charge issues are overruled.

CONCLUSION

Having overruled Pinnacle’s issues, we affirm the judgment.

Justice GRAY, dissenting.

1 . Tex. Um.CoDE Ann. ch. 121 (Vernon 1998 & Supp.2002) (primarily formerly codified as Tex.Rev.Civ. Stat. Ann. art. 6050 (Vernon 1962)).

2 . The order appealed from was not a "final order” nor did it meet any statutory exception to the "final order” rule.

3 . The judgment was in favor of Raymond Read and Mark Read. Lienholders are not "property owners” entitled to damages under chapter 21. State v. First Interstate Bank, 880 S.W.2d 427 (Tex.App.-Austin 1994, writ denied).

4 . We assume the parties filed objections to the commissioners' award in the second proceeding just as they did in the first.

5 . For example, some refer to situations in which there is a taking of an entire piece of property. In that instance, the market value of the property may be the appropriate measure of damages. Those cases are inapplicable here.

6 . In so holding we disagree with Ludewig v. Houston Pipeline Co., 773 S.W.2d 610, 613-14 (Tex.App.-Corpus Christi 1989, writ denied). There, the court held that if the condemnor deposits the damages set by the commissioners or posts a bond in lieu thereof, it has the right to condemn and possess the property, even if later the condemnation and possession is found to be improper. Therefore, the court reasoned, under the express language of section 21.044(a), i.e., that the court may award damages only if “a condemnor who has taken possession of property pending litigation did not have the right to condemn the property,” recovery can not be had for loss of use of the land. However, we interpret “did not have the right to condemn the property” to refer to filing the petition and proceeding to possess or attempt to possess the land.