Day v. Wooten

• Decision Date: 18 November 1976
• Docket Number: No. 4,No. 19025,4,19025
• Citation: 545 S.W.2d 16
• Parties: Robert DAY, Judge, County Court at Lawfor Dallas County, Texas, Appellant, v. Mrs. C. E. WOOTEN and Mrs. Leona Miller Day, Appellees.
• Court: Texas Court of Appeals

Page 16

545 S.W.2d 16

Robert DAY, Judge, County Court at Law No. 4 for Dallas County, Texas, Appellant, v. Mrs. C. E. WOOTEN and Mrs. Leona Miller Day, Appellees.

No. 19025.

Court of Civil Appeals of Texas Dallas.

Nov. 18, 1976.

Rehearing Denied Dec. 16, 1976.

Henry Wade, Dist. Atty., William H. Pool, Jr., Asst. Dist. Atty., Dallas, Pete Eckert, City Atty., Garland, Earl Luna, Thomas V. Murto, III, Dallas, for appellant.

Eddie D. Vassallo, Jr., Richard G. Dafoe, McKool, Shoemaker & Vassallo, Dallas, for appellees.

WILLIAMS, Chief Justice.

Judge Robert Day, as Judge of the County Court at Law No. 4 of Dallas County, has perfected his appeal from the issuance of a writ of mandamus by a district court ordering him to enter an award of the special commissioners as the judgment of his court in the absence of objections under the provisions of Tex.Rev.Civ.Stat.Ann. art. 3266(7) (Vernon 1968). Judge Day bases his appeal on the ground that the district court erred as a matter of law when it sustained appellee's motion for summary judgment and issued the writ of mandamus. We agree with his contention. Accordingly, we reverse the district court's judgment and dissolve the writ of mandamus.

On October 29, 1975, the City of Garland, Texas filed a petition for condemnation in County Court at Law No. 4, Dallas County, to acquire an easement of 1.642 acres of land for a street right-of-way and other municipal purposes. On October 24, 1975, the special commissioners appointed by the court filed their decision in the county court at law awarding actual damages to the appellees, Mrs. C . E. Wooten and Mrs. Leona Miller Day, in the amount of $81,200.80. Thereafter, and prior to the time that objections to the award of the commissioners might have been in the county court at law, the City of Garland requested leave to take a nonsuit and Judge Day dismissed the cause, without prejudice, on October 31, 1975. The landowners, Mrs. Wooten and Mrs. Day, filed an application for writ of mandamus in the district court requesting that Judge Day be ordered to reinstate the cause and enter judgment thereon. Judge Day answered the application with a special denial alleging that the landowners were not entitled to have the award entered as judgment since the matter had been dismissed at the request of the condemner. The district court granted the petition of the City of Garland to intervene in the cause. All parties filed motions for summary judgment asserting that there was no genuine issue as to any material facts. At the hearing on the motions the district court sustained the landowner's motion for summary judgment and issued a writ of mandamus ordering Judge Day to enter the award as the judgment of his court and to issue the necessary processes to enforce the same.

Judge Day's primary contention is that a condemner has the right to dismiss or take a nonsuit in a condemnation proceeding at any time prior to the county judge causing the decision and award of the special commissioners to be recorded in the minutes of the county court, thereby making it the judgment of the court. He argues that the underlying principle enunciated by our supreme court is that an agency may not be required to take land against its will through eminent domain proceedings. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 954 (1952). He contends that this principle of law has been applied by allowing a condemner to abandon a condemnation proceeding by taking a nonsuit even after a jury renders a verdict concerning the amount of damages but before the court enters judgment vesting a right to the condemned property in the condemner. Leonard v. Small, 28 S.W.2d 826, 830 (Tex.Civ.App.--Fort Worth 1930, writ ref'd). We agree with Judge Day. The jury verdict in a condemnation proceeding is nothing more than an offer to sell the property for a certain price as found by the jury. If the condemner believes this price to be too high, it may refuse to accept it. Armendaiz v. Ray, 215 S.W.2d 210, 212 (Tex.Civ.App.--San Antonio 1948, no writ), citing Leonard v. Small, supra. However, our courts have restricted the condemner's right to a nonsuit when it has done something which would create an estoppel. Huntsville Independent School District v. Scott, 483 S.W.2d 344, 347 (Tex.Civ.App.--Houston (14th Dist.)), Writ ref'd n.r.e., per curiam, 487 S.W.2d 692 (Tex.1972). An estoppel exists if the condemner has entered or taken possession of the property by virtue of the condemnation proceedings and cannot restore possession to the landowner. Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, 845 (1943); and Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 757 (1959). In the case before us there is no evidence that the condemner has taken any action which would create an estoppel and which would thereby prevent it from withdrawing its application for condemnation .

Mrs. Wooten and Mrs. Day argue, however, that between the time that the commissioners award had been filed in the county court and objections filed thereto, that the matter is still in an administrative status and has not yet become a lawsuit so that Judge Day could only perform the ministerial duties of entering a judgment based upon the commissioners award. They rely upon Pearson v. State, 307 S.W.2d 159 (Tex.Civ.App.--Austin 1957), Affirmed, 159 Tex. 66, 315 S.W.2d 935 (1958), and State v. Rayburn, 352 S.W.2d 357 (Tex . Civ.App.--Texarkana 1961), Writ ref'd n.r.e., per curiam, 163 Tex. 450, 356 S.W.2d 774 (1962). Both of these cases dealt with a situation where objections to the commissioners award were filed, although not timely. In Pearson, the issue before the supreme court was whether an appeal could be taken from a...