Duncan v. Calhoun County Navigation District

• Decision Date: 24 August 2000
• Docket Number: No. 13-99-346-CV,No. 13-99-343-CV,No. 13-99-344-CV,No. 13-99-345-CV,No. 13-99-347-CV,13-99-343-CV,13-99-344-CV,13-99-345-CV,13-99-346-CV,13-99-347-CV
• Parties: (Tex.App.-Corpus Christi 2000) PAULA S. WAKEFIELD DUNCAN AND MICHAEL D. DUNCAN, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee. LOUIS FOESTER, III AND WIFE, SHIRLEY FOESTER, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee. JOSEPHINE FOESTER BISHOP INVESTMENT PARTNERSHIP, LTD., AND LOUIS FOESTER, III, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee. WAYNE HENDERSON AND WIFE, HATTIE HENDERSON, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee. JAMES E. SHANNON, JR. AND CAROLYN C. SHANNON, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee
• Court: Texas Court of Appeals

Page 707

28 S.W.3d 707 (Tex.App.-Corpus Christi 2000)

PAULA S. WAKEFIELD DUNCAN AND MICHAEL D. DUNCAN, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee.

LOUIS FOESTER, III AND WIFE, SHIRLEY FOESTER, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee.

JOSEPHINE FOESTER BISHOP INVESTMENT PARTNERSHIP, LTD., AND LOUIS FOESTER, III, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee.

WAYNE HENDERSON AND WIFE, HATTIE HENDERSON, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee.

JAMES E. SHANNON, JR. AND CAROLYN C. SHANNON, Appellants, v. CALHOUN COUNTY NAVIGATION DISTRICT, Appellee.

No. 13-99-343-CV

No. 13-99-344-CV

No. 13-99-345-CV

No. 13-99-346-CV

No. 13-99-347-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 24, 2000.

Opinion Overruling Rehearing September 28, 2000.

On appeal from the 135th District Court of Calhoun County, Texas.

On appeal from the 24th District Court of Calhoun County, Texas.

On appeal from the 135th District Court of Calhoun County, Texas.

On appeal from the 267th District Court of Calhoun County, Texas.

On appeal from the 135th District Court of Calhoun County, Texas.

Before Chief Justice Seerden and Justices Dorsey and Yanez.

OPINION

Opinion by Justice Dorsey.

Appellants are various landowners upon whose land an easement was acquired through eminent domain by the Calhoun County Navigation District. The Navigation District sought partial summary judgment on the issue of its authority to take the property through the power of eminent domain.¹ The trial court granted summary judgment and severed the condemnation proceeding into two cause numbers, separating the issues of "just compensation" from "right to take."

The landowners here appeal the partial summary judgment granted in favor of the Navigation District. However, we do not address the merits of the appellants' cause because we find that the trial court improperly split the condemnation cause of action and therefore, this matter is not ripe for our review. Accord Audish v. Clajon Gas Co., 731 S.W.2d 665, 672 (Tex. App.--Houston [14th Dist.] 1987, writ ref'd.) (holding that trial court did not err in refusing to sever "right to take" issues from "just compensation" issues in condemnation proceeding because they are merely subparts of a single cause of action). We hold that a condemnation proceeding may not be split into two lawsuits by separating the issues of "just compensation" from "right to take."

We hold the trial court abused its discretion in ordering severance of the condemnation proceeding. Severance is proper where (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). The severed portion of this lawsuit fails to meet the first two prongs of this test. The condemnation suit involved a single cause of action that could not be severed, and, the portion that was severed--the issue of the Navigation District's authority to exercise the power of eminent domain--would not be the proper subject of an independent lawsuit. We hold that the issues of "just compensation" and "right to take" are components of a single, indivisible cause of action.

A proceeding in condemnation is a unique type of lawsuit, created entirely by statute. It is the procedure by which a sovereign state exercises its right to take property of a private owner for public use, without consent, but upon the payment of just compensation. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 820 (Tex. App.--Corpus Christi 1978, writ ref'd n.r.e.). A condemnation is part administrative, part judicial. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984), see also, generally, Laura Hanley, Comment, Judicial Battles Between Pipeline Companies and Landowners: It's Not Necessarily Who Wins But By How Much, 37 Hous. L. Rev. 125, 135-42 (2000) (describing the statutory process for condemnation).

The process begins by the condemning authority filing a statement in the proper court. Amason, 682 S.W.2d at 242. Upon the filing of this statement, the trial court judge appoints three special commissioners who assess the damages and then file an award which, in their opinion, reflects the value of the sought-after land. Id. The special commissioners' are authorized only to assess the amount of fair compensation and have no authority to decide whether the condemnor possesses the right to condemn the property in the first place. Id. The initial proceedings through the filing of the special commissioners' award are administrative in nature. Id.

If the condemnor is satisfied with the award, it must either pay the amount of the award to the condemnee or deposit that amount in the court's registry. Id. If the condemnee is dissatisfied with the special commissioner's award, he must timely file objections with the court. Id. Upon the filing of objections, the special commissioners' award is vacated and the administrative proceeding converts into a normal lawsuit, pending in the court in which the application was filed, with the condemnor as plaintiff and the condemnee as defendant. Id. The condemnee has the burden of serving citation on the condemnor. Id. Then, the condemnor has the burden to prove that all requirements of the condemnation statute have been satisfied, thus giving it the right to take through the power of eminent domain. The condemnee has the burden of proving the amount of fair compensation. We hold that these two issues--which together form only one cause of action--cannot be severed into two lawsuits.

Rule 41 of the Texas Rules of Civil Procedure states that any claim against a party may be severed and proceeded with separately. Tex. R. Civ. P. 41. The rule grants the trial court broad discretion in the matter of severance of causes. Guaranty Federal Sav. Bank, 793 S.W.2d at 658. A trial court's decision to sever will be reversed only upon finding an abuse of discretion. Id. However, courts have long recognized that it is an abuse of discretion to grant a severance that splits a single cause of action. In Re El Paso County Hosp. Dist., 979 S.W.2d 10, 12 (Tex. App.--El Paso 1998, no pet.); Ryland Group, Inc. v. White, 723 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1986, no writ); Duke v. Merkin, 599 S.W.2d 877, 880 (Tex. Civ. App.--El Paso 1980, no writ.); Nueces County Hospital District v. Texas Health Facilities Commission, 576 S.W.2d 908 (Tex. Civ. App.--Austin 1979, no writ); Hartnett v. Adams & Holmes Mort. Co., Inc., 539 S.W.2d 181, 184 (Tex. Civ. App.--Texarkana 1976, no writ). A "cause of action" consists of a plaintiff's primary right to relief and the defendant's act or omission that violates that right. Jones v. Ray, 886 S.W.2d 817, 821 (Tex. App.--Houston [1st Dist.] 1994, no writ).

This court has seen an increasing number of severances ordered after the granting of a partial summary judgment. However, even though partial summary judgment is proper in many cases, severance of that portion of the lawsuit is not proper when it amounts to the splitting of a single cause of action. The supreme court has explained that "[a] severance divides the lawsuit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment." Kansas University Endowment Ass'n v. King, 350 S.W.2d 11, 19 (Tex. 1961). Accordingly, "severance is proper only where the suit involves two or more separate and distinct causes of action. Each of the causes into which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controversy." Id. The severance of a single cause of action will ultimately result in two judgments that cannot stand independently of each other.

The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use, without just compensation. U.S. Const. amend. 5. The Texas Constitution provides that "no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person . . . ." Tex. Const. Art. 1, § 17. Thus, the issues of "just compensation" and "right to take" are inseparable portions of a condemnation cause of action. If the issue of "right to take" is severed from the issue of just compensation, the result is one "final" judgment that consists of a dollar amount representing just compensation for the property taken, and another "final" judgment that simply states that the government either may or may not "take" the subject property. Two such judgments would not be independent.

The longstanding rule in Texas is that appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). The civil practice and remedies code specifically authorizes appeals from interlocutory orders only in certain cases.² That code section also mandates that while the interlocutory appeal is pending, the commencement of the trial in the underlying proceeding will be stayed. Id. at § 51.014 (b). When an "interlocutory" order is made "fin...