State v. Producers Utilities Corp.

602 S.W.2d 367, 1980 Tex. App. LEXIS 3662

• Court: Court of Appeals of Texas
• Decided: June 30, 1980
• Docket: No. 9115
• Status: Published

Opinions

REYNOLDS, Chief Justice.

The State of Texas seeks the reversal of a judgment ordering it to pay Producers Utilities Corporation $33,781 with prejudgment interest. The payment ordered is in discharge of the State's previously adjudged liability to reimburse Producers for the cost of relocation of its pipelines necessitated by the improvement of a highway. The reversal is sought on challenges to the jurisdiction of the court to render, and to the legal sufficiency of the evidence to support, the judgment. The challenges are unavailing. Availing, however, is the State’s contention that the award of prejudgment interest is unauthorized. Modified and affirmed.

The State of Texas, acting by and through the agency of the State Highway Department, undertook the improvement of the State highway system and the completion of the National System of Interstate and Defense Highways by locating Interstate Highway 40 through Carson County, Texas. On allegations that Producers Utilities Corporation had refused to relocate its gas pipelines within the right-of-way for Interstate Highway 40 in two separate areas in Carson County as required by law, the State initiated this litigation by seeking a mandatory injunction compelling Producers to do so. The State pleaded that Producers “is required to relocate said gas pipelines at the cost and expense of the Plaintiff [the State of Texas],” and further pleaded “an offer to reimburse it [Producers] for the cost and expense of said reloca-tions to the full extent provided therefor in said Article 6674w-4 [Tex.Rev.Civ.Stat. Ann. (Vernon 1977)].”¹ The State prayed that Producers be directed, ordered and enjoined to relocate its gas pipelines in said public right-of-way “at the cost and expense of the Plaintiff in accordance with the law.” Producers answered with a general denial.

The parties appeared by and through respective counsel of record before the court, who recited in its 30 September 1975 judgment that

Both counsel announced ready for trial, waived a jury, and submitted all issues of law and fact in this cause to the Court for determination.

By its judgment, the court directed the specific relocations of Producers’ gas pipelines, ordered Producers to comply with the directions, and ordered that upon completion of the relocations, “The State of Texas shall reimburse Producers Utilities Corporation for all its costs and expenses incurred in accomplishment of said relocations to the full extent authorized by law as soon as practicable.” The court then enjoined both parties to comply fully, decreeing that “upon full compliance with the foregoing directions and orders of the Court by the parties herein, IT IS ORDERED that the injunction placed on each shall be dissolved and be of no further force and effect.” The judgment was approved as to both form and substance by counsel of record for each party.

Thereafter on 26 April 1979, another judgment, entitled “ORDER FOR PAYMENT,” was rendered by which the court ordered, adjudged and decreed that Producers recover from the State the sum of $33,-781, together with interest thereon at the rate of nine percent (9%) per annum from 11 March 1976 until paid. The predecretal factual ascertainments were expressed thusly:

BE IT REMEMBERED that on September 30, 1975, Judgment was entered in the above-captioned cause, which provided in pertinent part as follows:

“9. Upon completion of the aforesaid relocations in the manner described hereinabove . . . The State of Texas shall reimburse Producers Utilities Corporation for all its costs and expenses incurred in accomplishment of said relocations to the full extent authorized by law as soon as practicable.”

Upon consideration of the pleadings, the stipulations of counsel, the evidence introduced, and the argument of counsel, the Court makes the following findings and determinations:

1. The relocations in question were completed on or about March 11, 1976.

2. The cost of such relocations as stipulated by the parties was $33,781.00.

3. The State of Texas should pay to the Defendant, Producers Utilities Corporation, the principal sum of $33,781.00, together with interest at the rate of 9% per annum, accruing from March 11, 1976, until paid.

Appealing, the State first contends that the trial court had no jurisdiction to render the 26 April 1979 judgment. The contention is premised on the theory that the 30 September 1975 judgment became a final judgment thirty days after its rendition, and it could not be altered without additional pleadings, notice and a hearing thereon.

Contrary to the State’s theory, the 1975 judgment was not a final judgment depriving the court of jurisdiction to render its 1979 judgment. “To be final a judgment must determine the rights of the parties and dispose of all the issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy.” Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 892 (1956). Obviously, the 1975 judgment did not dispose of all the issues submitted for the court’s determination; a further judgment would be required after a hearing to determine compliance with the 1975 judgment ² and the “costs and expenses incurred in accomplishment of said relocations to the full extent authorized by law.” Moreover, a judgment, to be final, must be definite and certain; so, if, as in this instance, the judgment does not disclose the monetary amount determinable by ministerial act, the judgment lacks definiteness. See International Security Life Insurance Co. v. Spray, 468 S.W.2d 347, 350 (Tex.1971). Hence, the 1975 judgment, by leaving something to be further determined and adjudicated by the court in disposing of the parties and their rights, was interlocutory. Kinney v. TriState Telephone Co., 222 S.W. 227, 230 (Tex.Com.App.1920, judgmt approved). It achieved finality only when it was merged by operation of law with the 26 April 1979 judgment to constitute a final judgment disposing of the parties and all issues. Maxey v. Citizens National Bank of Lubbock, 489 S.W.2d 697, 704 (Tex.Civ.App.—Amarillo 1972), rev’d on another ground, 507 S.W.2d 722 (Tex.1974).

Neither was a motion nor further pleading a jurisdictional prerequisite to the rendition of the 26 April 1979 judgment.³ The approved 30 September 1975 judgment recites that the parties “submitted all issues of law and fact in this cause to the Court for determination.” Placed in issue in the cause, actually by the State’s own pleadings, and agreeably submitted for the determination of the court were questions of liability and the amount of “the cost and expense of said relocations to the full extent provided for” by law. While the liability therefor was determined by tho 1975 judgment, the amount thereof could not be fixed until the completion of the reloca-tions. Of necessity, then, the pleaded and submitted issue of amount remained viable for the court’s determination made in the 1979 judgment. Thus, there were pleadings to support the 1979 money judgment, and the judgment conformed, within the meaning of Rule 301, Texas Rules of Civil Procedure, to the pleadings. Beyond that, the pleaded issue being tried by express consent, the State is in no position to raise for the first time on appeal the question of lack or insufficiency of pleadings to support the final money judgment. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1943).

Next, the State submits, by a series of points of error, that the 26 April 1979 judgment was rendered without an eviden-tiary hearing and, thus, there is no evidence to support the court’s findings upon which the judgment is based. The offer is not supported by the appellate record.

No statement of facts has been presented. None is available, the State declares in its briefs, because there was no evidentiary hearing. Producers replies in its brief that there was a hearing. While counsels’ veracity is not questioned, the determination is to be made on the record before this court. Travelers Insurance Company v. Brown, 402 S.W.2d 500, 504 (Tex.1966).

The only revelation germane to this matter in the record properly before us is the trial court’s 26 April 1979 judgment. As previously quoted, the judgment recites the court considered the stipulations of counsel and the evidence introduced in judicially ascertaining the facts whose legal consequences led to the judgment rendered. The first two factual findings — i. e., that reloca-tions were completed on or about 11 March 1976, and that the cost as stipulated by the parties was $33,781 — could be ascertained only upon evidence or stipulation of the facts found, or both, at a hearing after the rendition of the 1975 judgment.

Nothing in the record presented by the State in its appeal⁴ serves as proof of the State’s declarations.⁵ Illustratively, no bills of exceptions are offered to support its declarations and to refute the recitations in the 1979 judgment. See, e. g., Combs v. Combs, 435 S.W.2d 166, 168 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ). To obtain a reversal of the judgment for the lack of any supporting evidence, the State had the burden to bring forward a record which disclosed the error. Uvalde Const. Co. v. Joiner, 132 Tex. 593, 126 S.W.2d 22, 24 (1939). The record presented by the State not only fails to sustain its declarations, but, to the contrary, disproves them.

Lastly, the State contends, in essence, that the court erred in ordering, and Producers is not entitled to recover, prejudgment interest. We concur.

Producers’ recovery is set by the statute as reimbursement of the cost of relocation, which is statutorily defined⁶ without including the element of prejudgment interest. Tex.Rev.Civ.Stat.Ann. art. 6674w — 4 (Vernon 1977). Except for the statute’s provision for the State’s assumption of the relocation cost to the extent stated, Producers could be required to relocate its pipelines at its own expense. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737, 741 (1960). The Legislature, after considering the necessary factors (among which reasonably could have been a consideration of the time required to arrive at the cost of relocation after its completion), determined that the State should reimburse utilities only to the extent specified, which the Legislature had the right to do. Id. at 743. It would, therefore, be an unwarranted invasion of the province of the Legislature for us to add an element of reimbursement — i. e., prejudgment interest — not provided by the Legislature in establishing the extent of the State’s assumption of the cost of relocation.

Accordingly, the 26 April 1979 judgment of the trial court is modified to eliminate therefrom the recovery of prejudgment interest and, as modified, is affirmed.

DODSON, J., dissents.

1 . Article 6674w--4 is a part of the statute addressing the modernization of highway facilities. Tex.Rev.Civ.Stat.Ann. art. 6674w (Vernon 1977). This article reads, in part: “Whenever the relocation of any utility facilities is necessitated by the improvement of any highway in this State which has been or may hereafter be established by appropriate authority according to law as a part of the National System of Interstate and Defense Highways, including extensions thereof within urban areas, such relocation shall be made by the utility at the cost and expense of the State of Texas provided that such relocation is eligible for Federal participation.”

2 . The State concedes, in its original brief, that “a later evidentiary hearing would be necessary to a determination of compliance” with the 1975 judgment.

3 . Although passing reference was made to the lack of a motion or pleading for a money judgment in the State’s original brief, the secondary theory that a motion or pleading was necessary to invoke the court’s jurisdiction to grant the 1979 money judgment was first asserted in the State’s post-submission brief sans point of error and supporting authority.

4 . The appellate record consists of the original transcript, which is composed of the pleadings and the two judgments noticed above, together with the State’s notice of appeal, and a supplemental transcript, which contains the clerk’s bill of costs.

5 .The State does urge, in its post-submission brief, that its statement of no evidentiary hearing be accepted as correct under Rule 419, Texas Rules of Civil Procedure. This we may not do. While the rule permits the acceptance of a statement made by appellant in his original brief as correct unless challenged by the opposing party, the statement that there was no evidentiary hearing was challenged and contradicted by Producers in its reply brief.

6 . “The term ‘cost of relocation’ includes the' entire amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility, and otherwise as may be fixed by regulations for Federal cost participation.” Tex.Rev.Civ.Stat.Ann. art. 6674w — 4 (Vernon 1977).