                                                                                   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

                                        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
 _________________________________________________________________

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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                                                                                                             Page 2
725 S.W.2d 797
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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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                                                                                                             Page 3
725 S.W.2d 797
(Cite as: 725 S.W.2d 797)




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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                                                                                                             Page 4
725 S.W.2d 797
(Cite as: 725 S.W.2d 797)




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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                                                                                       Page 5
725 S.W.2d 797
(Cite as: 725 S.W.2d 797)




     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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                                                                                                              Page 1
905 S.W.2d 620
(Cite as: 905 S.W.2d 620)




                                                            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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                                                                                                           Page 2
905 S.W.2d 620
(Cite as: 905 S.W.2d 620)




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

END OF DOCUMENT




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                                                                                                           Page 1
722 S.W.2d 149
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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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722 S.W.2d 149
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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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(Cite as: 722 S.W.2d 149)




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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                                                                                                          Page 6
722 S.W.2d 149
(Cite as: 722 S.W.2d 149)




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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                                                                                                        Page 7
722 S.W.2d 149
(Cite as: 722 S.W.2d 149)




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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                                                                                                        Page 1
851 S.W.2d 187
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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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                                                                                                           Page 2
851 S.W.2d 187
(Cite as: 851 S.W.2d 187)




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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                                                                                       Page 3
851 S.W.2d 187
(Cite as: 851 S.W.2d 187)




        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

END OF DOCUMENT




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                                                                                                           Page 1
587 S.W.2d 109
(Cite as: 587 S.W.2d 109)




                                                            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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                                                                                       Page 2
587 S.W.2d 109
(Cite as: 587 S.W.2d 109)




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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                                                                                                        Page 1
3 S.W.3d 243
(Cite as: 3 S.W.3d 243)




                                                                       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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                                                                                                          Page 2
3 S.W.3d 243
(Cite as: 3 S.W.3d 243)




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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3 S.W.3d 243
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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

END OF DOCUMENT




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                                                                                                             Page 1
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




                                                                  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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                                                                                                             Page 2
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




       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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                                                                                                             Page 3
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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                                                                                                             Page 4
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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                                                                                                             Page 5
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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                                                                                                             Page 6
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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                                                                                                             Page 7
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        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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                                                                                                             Page 8
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        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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                                                                                                             Page 9
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)



       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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




     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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        (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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        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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                                                                                                            Page 18
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




        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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                                                                                                            Page 19
141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




     *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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




                             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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




  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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




  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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141 S.W.3d 172, 159 Oil & Gas Rep. 380, Util. L. Rep. P 26,893, 47 Tex. Sup. Ct. J. 767, 47 Tex. Sup. Ct. J. 768
(Cite as: 141 S.W.3d 172)




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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90 S.W.3d 697, 46 Tex. Sup. Ct. J. 167
(Cite as: 90 S.W.3d 697)




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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90 S.W.3d 697, 46 Tex. Sup. Ct. J. 167
(Cite as: 90 S.W.3d 697)




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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(Cite as: 90 S.W.3d 697)




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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90 S.W.3d 697, 46 Tex. Sup. Ct. J. 167
(Cite as: 90 S.W.3d 697)




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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                                                            Most Cited Cases

           Court of Appeals of Texas,                       Eminent Domain 148          167(4)
              Houston (14th Dist.).
 METROPOLITAN TRANSIT AUTHORITY OF                          148 Eminent Domain
     HARRIS COUNTY, TEXAS, Appellant,                           148III Proceedings to Take Property and Assess
                        v.                                  Compensation
   Mary Francis Hofheinz GRAHAM, formerly                          148k167 Statutory Provisions and Remedies
 known as Mary F. Hofheinz, Individually and as                           148k167(4) k. Strict Compliance with
 Executor of the Estate of Roy M. Hofheinz, De-             Statutory Requirements. Most Cited Cases
  ceased, Roy M. Hofheinz, Jr., James Fred Hof-                  Proceedings to condemn private land for public
heinz, Dene Hofheinz Anton, also known as Dene              use are special in character, and a party attempting
Hofheinz Mann and the Hofheinz Family Trust No.             to establish its right to condemn must show strict
                  2, Appellees.                             compliance with law governing eminent domain
                                                            proceedings. V.T.C.A., Property Code § 21.001 et
              No. 14–02–00284–CV.                           seq.
                   May 8, 2003.
                                                            [2] Eminent Domain 148          180
     County transit authority initiated eminent do-
main proceedings against owners of 1.63-acre tract          148 Eminent Domain
of land for construction of light rail line. The                148III Proceedings to Take Property and Assess
County Civil Court at Law No. 4, Harris County,             Compensation
Cynthia Crowe, J., initially approved special com-                 148k179 Process or Notice
missioners' award, but later dismissed original law-                  148k180 k. Necessity. Most Cited Cases
suit for lack of jurisdiction. Transit authority ap-             All parties to a condemnation proceeding are
pealed. The Court of Appeals, Eva M. Guzman, J.,            entitled to notice of the time and place of the hear-
held that, as a matter of first impression: (1) trial       ing, and the requirement that notice of the commis-
court had jurisdiction to adjudicate the undivided          sioners' hearing be served on a party is equivalent
property interests of owners who were properly              to the requirement in ordinary judicial proceedings
served; (2) service on fewer than all named owners          that citation be properly served on a defendant.
of undivided property interests did not defeat juris-       V.T.C.A., Property Code §§ 21.014, 21.015.
diction; and (3) a portion of undivided interests
                                                            [3] Eminent Domain 148          184
could be subject of an otherwise lawful condemna-
tion proceeding.                                            148 Eminent Domain
                                                                148III Proceedings to Take Property and Assess
    Reversed and remanded.
                                                            Compensation
                  West Headnotes                                   148k179 Process or Notice
                                                                           148k184 k. Defects, Objections, and
[1] Eminent Domain 148          166                         Amendment. Most Cited Cases
                                                                 Trial court had jurisdiction over condemnation
148 Eminent Domain                                          proceeding to adjudicate the undivided property in-
   148III Proceedings to Take Property and Assess           terests of owners who were properly served, even
Compensation                                                though some owners were not served, where no ac-
      148k166 k. Nature and Form of Proceeding.             tion was taken against the unserved owners, a




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105 S.W.3d 754
(Cite as: 105 S.W.3d 754)




second proceeding was initiated to acquire interests        demnation proceeding.
of the unserved owners, and the unserved owners
did not allege any harm. V.T.C.A., Property Code §          [7] Eminent Domain 148          45
21.001 et seq.
                                                            148 Eminent Domain
[4] Eminent Domain 148          184                            148I Nature, Extent, and Delegation of Power
                                                                   148k44 Property Subject to Appropriation
148 Eminent Domain                                                     148k45 k. In General. Most Cited Cases
    148III Proceedings to Take Property and Assess               A condemnor can condemn any property in-
Compensation                                                terest that can be privately acquired or conveyed.
        148k179 Process or Notice
               148k184 k. Defects, Objections, and          [8] Tenancy in Common 373            44
Amendment. Most Cited Cases
                                                            373 Tenancy in Common
     Service of notice of condemnation proceeding
                                                                373III Rights and Liabilities of Cotenants as to
on fewer than all named owners of undivided prop-
                                                            Third Persons
erty interests did not defeat the jurisdiction of the
                                                                   373k42 Sales and Conveyances
special commissioners or the trial court to hear and
                                                                        373k44 k. Undivided Share. Most Cited
determine the rights of those owners who were
                                                            Cases
properly served. V.T.C.A., Property Code § 21.001
                                                                 Undivided interests are property rights that can
et seq.
                                                            be freely acquired and conveyed.
[5] Eminent Domain 148          184
                                                            [9] Action 13      13
148 Eminent Domain
                                                            13 Action
   148III Proceedings to Take Property and Assess
                                                               13I Grounds and Conditions Precedent
Compensation
                                                                   13k13 k. Persons Entitled to Sue. Most Cited
      148k179 Process or Notice
                                                            Cases
               148k184 k. Defects, Objections, and
                                                                 Standing pertains to an individual's justiciable
Amendment. Most Cited Cases
                                                            interest in a lawsuit, and a person has standing
    Naming but not serving one or more owners of
                                                            when an alleged wrong affects him personally.
a particular property with notice of condemnation
proceeding does not invalidate jurisdiction as to           *755 J. Mark Breeding, Houston, for appellant.
those owners properly served and before the court,
and it does not defeat the special commissioners'           W. Allyn Hoaglund, Houston, for appellees.
authority to assess damages as to those owners
properly before it. V.T.C.A., Property Code §
                                                            Panel consists of Justices EDELMAN, SEYMORE,
21.001 et seq.
                                                            and GUZMAN.
[6] Eminent Domain 148          45
                                                                               OPINION
148 Eminent Domain
                                                            EVA M. GUZMAN, Justice.
   148I Nature, Extent, and Delegation of Power
                                                                 Appellant Metropolitan Transit Authority of
      148k44 Property Subject to Appropriation
                                                            Harris County (“Metro”) appeals the dismissal of
         148k45 k. In General. Most Cited Cases
                                                            its eminent domain proceeding against appellees
    A portion of undivided interests in property
                                                            Mary Francis Hofheinz Graham, formerly known as
could be the subject of an otherwise lawful con-
                                                            Mary F. Hofheinz, individually and as executor




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105 S.W.3d 754
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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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105 S.W.3d 754
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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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879 S.W.2d 375
(Cite as: 879 S.W.2d 375)




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

END OF DOCUMENT




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302 S.W.2d 645                                                                                             Page 1
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




                                                           [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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302 S.W.2d 645                                                                                             Page 2
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




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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302 S.W.2d 645                                                                                               Page 3
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




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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157 Tex. 335, 302 S.W.2d 645
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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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302 S.W.2d 645                                                                                               Page 5
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




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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302 S.W.2d 645                                                                                            Page 6
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




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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302 S.W.2d 645                                                                                           Page 7
157 Tex. 335, 302 S.W.2d 645
(Cite as: 157 Tex. 335, 302 S.W.2d 645)




    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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                                                                                                           Page 1
895 S.W.2d 692, 38 Tex. Sup. Ct. J. 462
(Cite as: 895 S.W.2d 692)




                                                                         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




                           © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                      Page 2
895 S.W.2d 692, 38 Tex. Sup. Ct. J. 462
(Cite as: 895 S.W.2d 692)




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




                           © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                            Page 1
850 S.W.2d 691
(Cite as: 850 S.W.2d 691)




                                                            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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                                                                                                          Page 2
850 S.W.2d 691
(Cite as: 850 S.W.2d 691)




           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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                                                                                                           Page 3
850 S.W.2d 691
(Cite as: 850 S.W.2d 691)




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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65 S.W.3d 638, 45 Tex. Sup. Ct. J. 144
(Cite as: 65 S.W.3d 638)




                                                              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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                                                                                                         Page 14
65 S.W.3d 638, 45 Tex. Sup. Ct. J. 144
(Cite as: 65 S.W.3d 638)




  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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                                                                                                        Page 15
65 S.W.3d 638, 45 Tex. Sup. Ct. J. 144
(Cite as: 65 S.W.3d 638)




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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                                                                                                             Page 1
661 S.W.2d 923
(Cite as: 661 S.W.2d 923)




                                                            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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                                                                                                        Page 2
661 S.W.2d 923
(Cite as: 661 S.W.2d 923)




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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                                                                                                         Page 1
10 S.W.3d 730
(Cite as: 10 S.W.3d 730)




                                                           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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                                                                                                         Page 2
10 S.W.3d 730
(Cite as: 10 S.W.3d 730)




           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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                                                                                                        Page 3
10 S.W.3d 730
(Cite as: 10 S.W.3d 730)




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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                                                                                                        Page 4
10 S.W.3d 730
(Cite as: 10 S.W.3d 730)




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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                                                                                                           Page 5
10 S.W.3d 730
(Cite as: 10 S.W.3d 730)




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

END OF DOCUMENT




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