Austin Home Center Associates v. State

• Decision Date: 08 August 1990
• Docket Number: No. 3-89-171-CV,3-89-171-CV
• Citation: 794 S.W.2d 593
• Parties: AUSTIN HOME CENTER ASSOCIATES, Appellant, v. STATE of Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 593

794 S.W.2d 593

AUSTIN HOME CENTER ASSOCIATES, Appellant, v. STATE of Texas, et al., Appellees.

No. 3-89-171-CV.

Court of Appeals of Texas,

Austin.

Aug. 8, 1990.

John McClish, Austin, for appellant.

E. Elliott Mitchell, Asst. City Atty., Austin, for appellees.

Before POWERS, CARROLL and ABOUSSIE, JJ.

POWERS, Justice.

Austin Home Center Associates appeals from the judgment of a county court at law in an eminent-domain proceeding brought by the State of Texas under Chapter 21 of the Texas Property Code. ¹ We will affirm the judgment.

THE CONTROVERSY

The State initiated the statutory proceedings by the filing of a petition in eminent domain. The petition included the requisite jurisdictional allegation that the State had made a good-faith effort to settle the question of damages before invoking the compulsory proceedings before the special commissioners. Tex.Prop.Code Ann. § 21.012(b)(4) (1984). The landowners appeared before the duly appointed special commissioners, contested the issues on the merits, then filed objections to their award.

In the following trial de novo before the county court at law, the court granted the State's motion for partial summary judgment on the issue of good-faith negotiations, holding that the evidence was disputed in that regard but that the landowners had waived their right to complain in the matter by their appearance and contest before the special commissioners. Jones v. City of Mineola, 203 S.W.2d 1020, 1022 (Tex.Civ.App.1947, writ ref'd).

The landowners raise on appeal a single point of error challenging the trial court's jurisdictional holding, on the State's motion for summary judgment, that the landowners had waived their right to complain regarding good-faith negotiations. We will overrule the point of error.

DISCUSSION AND HOLDINGS

In response to the State's pleading of good-faith negotiations, the landowners interposed a special "denial," alleging in effect that the State had not negotiated in good faith to obtain by purchase the property interest it sought by condemnation. On appeal, our attention is invited to this special "denial" as containing the landowner's challenge to the trial court's jurisdiction. The special "denial" and the pleading of which it is a part do not state or imply, however, that any allegation in the State's petition was made fraudulently in order to confer jurisdiction. So far as we are able to tell from the appellate record, the landowners never requested dismissal of the proceedings for want of jurisdiction. The landowners prayed instead for judgment on the merits: "that the case be set for trial upon the Court's regular docket; that upon final hearing [they] have judgment that the [State] take nothing by [its] lawsuit and go hence without a [sic] day;" and, alternatively, that the landowners have their damages assessed "if it should be found as a fact that" jurisdiction exists. The alternate prayer hints at a challenge to the trial court's jurisdiction, but the plea was not verified, and it was not phrased explicitly as a plea to the jurisdiction. It was therefore insufficient to attack the trial court's jurisdiction. See generally 2 R. McDonald, Texas Civil Practice in District and County Courts, § 7.07, at 157-58 (rev.1982); M. Rayburn, Texas Law of Condemnation § 72(2), at 268-70 (1960). We hold accordingly. We decline, however, to affirm the judgment on this basis alone because we believe the landowners' theory of law to be plainly controlled by the doctrine of stare decisis, for the question of law they raise is, in our view, clearly determined to the contrary in City of Mineola.

Assuming the burden, perhaps, the State moved for partial summary judgment on the issue made by the landowners' special "denial." The State alleged as grounds for summary judgment that the landowners had waived the issue of pre-litigation negotiations by appearing before the special commissioners and there contesting the case on the merits. The State relied upon the City of Mineola:

[W]here the owner of the land sought to be condemned makes his appearance before the special commissioners and resists the condemnation proceedings upon the merits, he thereby waives whatever lack of efforts to reach a settlement there might have been.

203 S.W.2d at 1023; see also Phillips Pipeline Co. v. Woods, 610 S.W.2d 204, 207 (Tex.Civ.App.1980, writ ref'd n.r.e.); Brown v. Lower Colorado River Auth., 485 S.W.2d 369, 371 (Tex.Civ.App.1972, no writ); Dyer v. State, 388 S.W.2d 226, 230 (Tex.Civ.App.1965, no writ). ²

The landowners filed a response to the State's motion. The response was not, however, verified, evidently on a theory that the matters alleged therein were otherwise established as a matter of law by the State's answers to requests for admissions. In all events, the response did not contend, as the landowners do in this appeal, that there exists in Texas law no doctrine of waiver such as that attributed above to the City of Mineola decision. The landowners did, perhaps, make in their trial brief a contention of that kind. The response itself, however, assumed the waiver doctrine and simply set out reasons why it should not apply in the landowners' particular case: (1) the State instructed its appraisers to disregard elements of damage to the remainder that were, in the landowners' view, properly compensable under the law; (2) the State made only one offer for the land and it did not include any sum for damages to the remainder; (3) the single offer was based on an appraisal report that was "withheld" from the landowners, until production was compelled by the trial court, in unjustified reliance on the exception provided in the Open Records Law for "information pertaining to appraisals" relating to property purchases, Tex.Rev.Civ.Stat.Ann. art. 6252-17a, § 3(a)(5) (Sup...