Goodpasture v. Coastal Indus. Water Authority

Decision Date01 February 1973
Docket NumberNo. 16012,16012
Citation490 S.W.2d 883
PartiesGrady GOODPASTURE et al., Appellants, v. COASTAL INDUSTRIAL WATER AUTHORITY, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Prappas, Caldwell & Moncure, Brantly Harris, Houston, William R. Powell, Houston, of counsel, for appellant.

Fred Spence, Houston, for appellee.

PEDEN, Justice.

Eminent domain proceeding. Appellants' primary complaints on appeal are based on the denial by the trial judge of their motion to consolidate this cause with one brought to condemn an adjoining tract.

The appellee says that the appellant has failed to preserve for appellate review the error, if any, of the trial court in denying the motion to consolidate.

Our case bore cause number 172,886 in the trial court. The condemnees included Goodpasture, Inc., Grady Goodpasture and Molly Goodpasture. The entire tract of 86.96 acres was taken by the condemnor.

A motion was filed by Goodpasture, Inc., the condemnee in cause number 172,888, to consolidate that cause with No. 172,886, stating as follows:

I.

'The cause of action in this present suit is as shown by the pleadings, an action in Eminent Domain, and the cause of action in the cause of Coastal Industrial Water Authority vs. Grady Goodpasture et al, No. 172,886, is as shown by the pleadings therein, also an action in Eminent Domain, and such causes of action may be properly and legally joined.

II.

'Such actions are by the same Plaintiff, Coastal Industrial Water Authority against several Defendants, the former being against Goodpasture, Inc., and the latter against Grady Goodpasture and Wife, Molly Goodpasture; Houston Bank & Trust, Independent Co-Executor and Trustee under the Will and the Estate of Bessie M. West, Deceased and Frank M. West, Independent Co-Executor and Advisor to the Trustee under the Will and the Estate of Bessie M. West, Deceased; Goodpasture, Inc.; Nowlin Randolph and Wife, Marjorie M. Randolph, all of whom may be properly and legally joined in one suit because Goodpasture, Inc., and Grady Goodpasture are one in the same for all practical purposes; Houston Bank & Trust Company and Frank M. West are Independent Co-Executors under the Will of Bessie M. West being the Grantor by general warranty deed dated September 28, 1968 selling the subject tract to Grady Goodpasture, Grantee; and Nowlin Randolph and Wife, Marjorie M. Randolph are owners of an access easement over the subject property to property owned by the Randolphs which is also the subject of condemnation in another proceeding by the same Plaintiff herein.

III.

'Such actions involve common questions of law and fact as to the defects in this proceedings and condemnation as well as the amount of damages to which the parties are entitled and should be consolidated because justice can be more economically and conveniently served by reducing the matter to trial of one law suit.

'Premises considered, the Defendant, Goodpasture, Inc., prays that such actions be consolidated for trial.'

On August 8, 1969 the trial judge entered an order reciting that after examining all papers in the cause and inquiring of respective counsel as to all facets of the case, he overruled the motion to consolidate. The condemnees thereafter withdrew the special commissioners' awards in both cases. Goodpasture, Inc., later filed a motion for a joint trial of the two causes, alleging no reasons other than those stated in its motion to consolidate. The trial court heard that motion and denied it in May of 1971.

The instant case went to trial on December 8, 1971, and on February 8, 1972 a judgment was entered. (It was later amended, but that is of no moment here). Also on February 8, Grady Goodpasture and Goodpasture, Inc., filed this instrument:

'BILL OF EXCEPTIONS

'Be it remembered that upon the 7th day of December, 1971, before trial of the above captioned and numbered cause, at a pretrial hearing called by the Court to consider motions the Defendant, Grady Goodpasture and Goodpasture, Inc. moved the Court to consolidate this cause with Cause No. 172,888 styled 'Coastal Industrial Water Authority vs. Goodpasture, Inc.' pending in this Court.

'It was pointed out to the Court that Grady Goodpasture held record title to the subject property as nominee for Goodpasture, Inc ., and that Grady Goodpasture owned more than 95% Of the stock of Goodpasture, Inc. and the tracts should be considered as a single tract for condemnation purposes; it was further urged that the condemnor was splitting its causes of action to the prejudice of Defendants in that the value of said land would be substantially less when considered as two tracts instead of one, and that the river frontage would be reduced from in excess of 3,000 to about 800 . That both causes involve a whole taking.

'The Court after hearing argument of counsel overruled Defendants' plea to consolidate said causes, and ordered the parties to proceed to trial in this cause. Whereupon the Defendants' excepted to the action of the Court in refusing to consolidate and now brings this their bill of exception in said cause and asks that the same be allowed, approved and ordered filed as part of the record herein.'

It was signed by the attorney for Grady Goodpasture and Goodpasture, Inc. but not by opposing counsel. The trial judge struck out the words: 'allowed, approved and', leaving the words 'ordered filed as part of the record herein. February 8, 1972' above his signature.

A bill of exceptions that is not approved by either the trial judge or opposing counsel, and is not a bystanders' bill, presents nothing for appellate review. Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689 (Tex.1934); Dyches v. Ellis, 199 S.W.2d 694 (Tex.Civ.App.1947, no writ); Pelton v. Cooke, 209 S.W.2d 398 (Tex.Civ.App.1948, writ ref. n.r.e.).

There is no official record before us of what happened at the hearing on appellants' proffered bill of exception, so we cannot say that the trial judge failed or refused to suggest any correction in the proffered bill. Flora v. Scott, 398 S.W.2d 627 (Tex.Civ.App.1965, writ ref. n.r.e.); Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46 (1958).

The record does not show that before trial on the merits was begun in this case the appellants raised the point which they now present, that unless the two causes are consolidated they would be unfairly deprived of the fair market value of each of the two tracts. The trial court did not abuse its discretion in denying the motions to consolidate and to try the cases jointly if the only basis then urged was that justice can be more economically and conveniently served by reducing the matter to trial of one law suit. Rule 174, Texas Rules of Civil Procedure.

Appellants point out that during the trial of this cause their attorney made the following statement outside the presence and hearing of the jury:

'May the record reflect that the testimony that is to be offered now is for the purpose of making a Bill of Exceptions. The Court having previously ruled that it would not hear testimony bearing on any...

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  • Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.
    • United States
    • Texas Court of Appeals
    • December 31, 1988
    ...Fountain v. Nelson, 546 S.W.2d 102, 104 (Tex.Civ.App.--Beaumont 1977, no writ); Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883, 885 (Tex.Civ.App.--Houston [1st Dist.] 1973, writ ref'd n.r.e.); Dyches v. Ellis, 199 S.W.2d 694, 697 (Tex.Civ.App.--Austin 1947, no writ). We c......
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    • April 19, 1979
    ...is not in compliance with Rule 372(f); we do not consider it for any purpose. See Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref'd n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ); Burchfie......
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    ...Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.--Amarillo 1988, writ denied); Goodpasture v. Coastal Indus. Water Auth., 490 S.W.2d 883, 885 (Tex.Civ.App.--Houston [1st Dist.] 1973, writ ref'd n.r.e.). The errors complained of in appellants' formal bill of exceptions were not preserved......
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