                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00219-CV
                                No. 10-08-00220-CV
                                No. 10-08-00221-CV
                                No. 10-08-00222-CV
                                No. 10-08-00223-CV

ETC KATY PIPELINE, LTD,
                                                        Appellant
v.

FLR PIPELINE CORRIDOR NO. 1, LLC,
CAMP COOLEY LTD AND NORTH CC
PIPELINE CORRIDOR, LLC,
McCORMICK PIPELINE CORRIDOR, LLC,
MARTIN PIPELINE CORRIDOR, LLC,
FPJ PIPELINE CORRIDOR NO. 1, LLC,
                                                        Appellees


                          From the 82nd District Court
                            Robertson County, Texas
                         Trial Court No. 08-02-18,020-CV
                         Trial Court No. 08-02-18,022-CV
                         Trial Court No. 08-02-18,023-CV
                         Trial Court No. 08-02-18,024-CV
                         Trial Court No. 08-02-18,025-CV


                                    OPINION


      The issue in each of these five appeals is the same: Should a trial court modify a

dismissal order, filed in a condemnation proceeding before the special commissioners
have met, to remove the term “with prejudice” when asked to do so by the condemning

authority? Our answer is yes.

           ETC Katy Pipeline, Ltd. (ETC) filed five condemnation proceedings with the district

judge on February 14, 2008.1 Before the special commissioners met or made an award,

ETC filed a motion to dismiss on March 14, asserting that the matter had been settled

between the parties. The landowners, noting ETC’s motion to dismiss, filed a motion on

March 18 requesting an award of attorney’s fees under section 21.019 of the Texas

Property Code. See TEX. PROP. CODE ANN. § 21.019 (Vernon 2004). On March 20, ETC filed

a notice of non-suit, stating again that the matters had been resolved. On March 31, the

trial court made an allowance to the landowner for attorney’s fees and granted the motion

to dismiss “with prejudice to the refiling of same.”2 Id.

           Apparently the matters had not been resolved. ETC filed five new proceedings on

March 17, 2008.3

           On April 10, 2008, ETC filed a motion to reinstate the case, to modify the dismissal

order, or to grant a new trial. On April 30, it filed an amended motion to modify or correct

the dismissal order. Also on April 30, it filed an amended motion for new trial. On June

11, the trial judge signed orders denying the post-trial motions.




1   From here forward, when we recite an event, that event took place in each of the five cases in the trial court.

2   Only ETC’s notice of nonsuit states “with prejudice.” The motion to dismiss does not.

3 The second set of five proceedings are the subject of other matters before us: five original mandamus
proceedings (our cause numbers 10-08-00212-CV thru 10-08-00216-CV), in which we conditionally granted
relief on October 1, 2008, (2008 WL 4444487) and denied rehearing on November 26, 2008 (2008 WL ------),
and five direct appeals from the orders dismissing the second set of condemnation cases (our cause numbers
10-08-00248-CV thru 10-08-00252-CV).
        ETC says on appeal that the court abused its discretion in failing to grant its post-

trial motions to reflect that the dismissal was “without prejudice.”                     The landowners

respond that the court could not have abused its discretion because ETC offered no

evidence in support of its post-trial motions and that the doctrine of “invited error” estops

ETC from complaining about the court’s action. We agree with ETC.

        Generally, an order dismissing a proceeding with prejudice is improper when there

has not been an adjudication of the merits of the claims. 4 See Dueitt v. Arrowhead Lakes

Property Owners, Inc., 180 S.W.3d 733, 741-42 (Tex. App.—Waco 2005, pet. denied)

(dismissal for want of prosecution, error not challenged in a timely filed motion to

reinstate or motion for new trial); Willis v. Barron, 604 S.W.2d 447, 450 (Tex. Civ. App.—

Tyler 1980, writ ref’d n.r.e.) (dismissal for want of prosecution, judgment reformed to

delete “with prejudice”). When a dismissal does not implicate the claims' merits, the trial

court should dismiss the claims without prejudice. See Subaru of America, Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (citing Ritchey v. Vasquez, 986 S.W.2d

611, 612 (Tex. 1999), and Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962)).

        Here, the dismissal orders were not and are not final. ETC’s post-trial motions were

timely filed and ruled on by the court, and a notice of appeal was timely filed. ETC asked

the court to correct the dismissal orders, and the court refused to do so.

        The landowners reply that the doctrine of invited error presents an additional

obstacle to ETC’s request for modification of the dismissal orders. We disagree. The


4A dismissal with prejudice that becomes final operates as a bar to relitigation of the same claims in a later
proceeding. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (dismissal for discovery abuse); Decker v.
Dunbar, 200 S.W.3d 807, 812-13 (Tex. App.—Texarkana 2006, pet. denied) (inmate claims).

ETC Katy Pipeline v. FLR Pipeline                                                                   Page 3
invited-error doctrine is one utilized in appellate review. It applies when a party asks

something of the trial court and then complains on appeal that the trial court granted it.

See Yaqiento v. Britt, 188 S.W.3d 819, 829 (Tex. App.—Fort Worth 2006, pet. denied) (citing

Y Propane Serv., Inc. v. Garcia, 61 S.W.3d 559, 570 (Tex. App.—San Antonio 2001, no pet.)).

Although ETC’s notice of nonsuit stated that the nonsuit was “with prejudice,” the motion

to dismiss did not so state, and the court granted the motion to dismiss. Furthermore, ETC

asked the trial court to correct the error during that court’s plenary power, and it is the

trial court’s refusal to do so that is the grounds for their appeals.          Under these

circumstances, we hold that the doctrine of invited error does not apply.

        The trial court abused its discretion in refusing to modify the order of dismissal in

each case. We therefore strike the words "with prejudice to the refiling of same" from the

“Order Dismissing Cause and Awarding Attorney’s Fees” in each case, and we affirm the

orders as modified. TEX. R. APP. P. 43.2(b) (The court of appeals may . . . “modify the trial

court’s judgment and affirm it as modified.”).



                                                 BILL VANCE
                                                 Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurs in the judgment with a note)*
Orders Modified and Affirmed
Opinion delivered and filed December 3, 2008
[CV06]

*(Chief Justice Gray concurs in the judgment. A separate opinion will not issue. He notes,
however, that there are two issues presented. Appellant’s first issue is whether the trial


ETC Katy Pipeline v. FLR Pipeline                                                    Page 4
court has jurisdiction during the administrative phase of a condemnation proceeding to
grant the condemnee’s “motion to dismiss” “with prejudice.” Because a positive answer
to that issue is a prerequisite to reaching the second issue, I would review it and hold that,
as asked, the answer is yes. The trial court has jurisdiction to render such an order—it
may be an erroneous order, but the trial court has jurisdiction to render such an order.
This holding thus leads to appellant’s second issue of whether the trial court erred in
rendering such an order in these proceedings. I agree that it did.)




ETC Katy Pipeline v. FLR Pipeline                                                    Page 5
