Hubenak v. San Jacinto Gas Transmission Co.
| Decision Date | 02 July 2004 |
| Docket Number | No. 02-0213.,No. 02-0359.,No. 02-0320.,No. 02-0216.,No. 02-0214.,No. 02-0326.,No. 02-0217.,No. 02-0321.,No. 02-0215.,02-0213.,02-0214.,02-0215.,02-0216.,02-0217.,02-0320.,02-0321.,02-0326.,02-0359. |
| Citation | 141 S.W.3d 172 |
| Parties | Thelma Blahuta HUBENAK, Petitioner, v. SAN JACINTO GAS TRANSMISSION COMPANY, Respondent. Thelma Blahuta Hubenak and Emil Blahuta, Petitioners, v. San Jacinto Gas Transmission Company, Respondent. Rosie Wenzel, Wilma McAndrew, Betty McCleney, and Tilford Sulak, Petitioners, v. San Jacinto Gas Transmission Company, Respondent. Kutach Family Trust, Darryl Wayne Kutach, Trustee, Petitioner, v. San Jacinto Gas Transmission Company, Respondent. Cusack Ranch Corporation, Petitioner, v. MidTexas Pipeline Company, Respondent. MidTexas Pipeline Company, Petitioner, v. Wilbert O. Dernehl, Jr. and The First National Bank of Bellville, Respondents. MidTexas Pipeline Company, Petitioner, v. Walter Roy Wright, Jr. and Robbie V. Wright, Respondents. MidTexas Pipeline Company, Petitioner, v. Walter Roy Wright, III, Respondent. Michael F. Cusack, Trustee of the Michael F. Cusack Special Trust No. One, Petitioner, v. MidTexas Pipeline Company, Respondent. |
| Court | Texas Supreme Court |
Appeal from the 25th District Court, Gonzales County, and the Corpus Christi Court of Appeals, 141 S.W.3d 215, 2002 WL 368639, Yanez, J Stephen I. Adler, Austin, for Amicus Curiae Olin Corporation.
Richard L. McElya, Angleton, William D. Noel, for Thelma Blahuta Hubenak, Cusack Ranch Corporation, Walter Roy Wright, III.
Thomas E. Sheffield, Houston, for San Jacinto Gas Transmission Company.
Richard L. McElya, Angleton, for Emil Blahuta, Wilma McAndrew, Betty McCleney, Tilford Sulak, Darryl Wayne Kutach, Trustee, The First National Bank of Bellville, Robbie V. Wright, Michael Cusack Special Trust No. One.
William D. Noel, for Rosie Wenzel, Kutach Family Trust, Wilbert O. Dernehl, Jr., Walter Roy Wright, Jr., Michael F. Cusack, Trustee.
Kenneth C. Raney Jr., Dallas, Thomas E. Sheffield, Houston, for MidTexas Pipeline Company.
Stephen K. Carroll, Houston, for Amicus Curiae BP Pipelines Inc.
In these nine consolidated condemnation cases, we must determine whether (1) provisions in Texas Property Code section 21.012 permitting a condemning authority to begin condemnation proceedings if it is "unable to agree with the owner of the property on the amount of damages" and requiring a condemnation petition to contain a statement that it has been unable to agree are jurisdictional;1 and (2) the condemning entities in these cases satisfied section 21.012's requirements. We hold that the "unable to agree" requirement is not jurisdictional and that the condemning entities have satisfied their burden to show that they and the landowners were unable to agree on the damages for the properties described in the underlying condemnation petitions. Accordingly, we (1) affirm the courts of appeals' judgments in Hubenak v. San Jacinto Gas Transmission Co. (Hubenak 1),2 Hubenak v. San Jacinto Gas Transmission Co. (Hubenak 2),3 Wenzel v. San Jacinto Gas Transmission Co.,4 Kutach Family Trust v. San Jacinto Gas Transmission Co.,5 and Cusack Ranch Corp. v. MidTexas Pipeline Co.;6 (2) affirm the court of appeals' judgment in MidTexas Pipeline Co. v. Cusack7 and remand that case to the trial court for further proceedings consistent with this opinion; and (3) reverse the court of appeals' judgments in MidTexas Pipeline Co. v. Dernehl,8 MidTexas Pipeline Co. v. Wright (Wright 1),9 and MidTexas Pipeline Co. v. Wright (Wright 2)10 and remand those cases to their respective trial courts for further proceedings consistent with this opinion.
San Jacinto Gas Transmission Co. and MidTexas Pipeline Co. are unrelated gas utility companies possessing eminent domain power.11 Their respective boards of directors authorized them to construct natural gas pipelines. Some of the landowners across whose property a pipeline was to be built12 challenged the validity of the condemnation proceedings. The affected properties are located in several Texas counties, including Fort Bend, Colorado, and Gonzales counties. Because the issues in each of the cases are the same, we will refer to the landowners collectively and to the gas utility companies as the "condemnors."
Before instituting condemnation proceedings, the condemnors hired certified real estate appraisers to appraise the proposed easements across the landowners' properties. In each case, the condemnors made at least two offers to the landowners to purchase their property. Each offer exceeded the appraised value of the easements, including a final offer that contained the following statement: "If you elect to reject this offer, [the condemnor] may institute a condemnation suit in [a designated court], to acquire the rights described in the Right of Way Agreement." The right-of-way agreements attached to all of the final offers included the following terms:
(1) the condemnor would receive the right to transport "gas, oil, petroleum products, or any other liquids, gases or substances which can be transported through a pipeline";
(2) the condemnor would receive the right to assign the easement to any person or entity; and
(3) the landowners would be obligated to warrant and defend title to the easement.
The landowners repeatedly informed the condemnors during negotiations that they simply did not want a pipeline located on their properties, and in many cases, the landowners stated they would agree to sell the easements only at prices far above the appraised values, if at all. Ultimately, the landowners in each case either rejected or ignored the condemnors' final offers. The condemnors then sought condemnation in the appropriate trial courts.
Section 21.012 of the Texas Property Code provides:
(a) If the United States, this state, a political subdivision of this state, a corporation with eminent domain authority, or an irrigation, water improvement, or water power control district created by law wants to acquire real property for public use but is unable to agree with the owner of the property on the amount of damages, the condemning entity may begin a condemnation proceeding by filing a petition in the proper court.
(b) The petition must:
(1) describe the property to be condemned;
(2) state the purpose for which the entity intends to use the property;
(3) state the name of the owner of the property if the owner is known; and
(4) state that the entity and the property owner are unable to agree on the damages.13
The condemnation petitions filed in the trial courts contained all the foregoing statutory allegations, including a statement that the condemnors and the landowners were unable to agree on the damages for the properties to be condemned. The petitions, however, did not expressly seek to condemn or otherwise address the three matters contained in the right-of-way agreements regarding the transportation of oil and other substances, the right to assign the easement, and the landowners' obligations to warrant title.
In each case, the trial court appointed special commissioners to assess damages, and the special commissioners awarded the landowners less than the condemnors had offered for the easements, with the exception of the awards in Cusack and Cusack Ranch.14 The landowners timely filed their objections to the commissioners' awards, and in Dernehl, Wright 1, and Wright 2, the landowners also filed counterclaims for possession of their land and damages for wrongful taking. In all of the cases, the condemnors responded by filing motions for partial summary judgment, asserting that they had satisfied all prerequisites to bringing the condemnation actions and that the amount of damages was the only issue pending before the court. In support of their motions, the condemnors attached affidavits from David M. Dunwoody on the issue of inability to agree. Dunwoody oversaw the negotiations between the condemnors and landowners in each of the nine cases. His affidavits recount obtaining independent appraisals, the offers made to the landowners, and the parties' failure to agree. In most of the cases, Dunwoody's affidavit also authenticates correspondence that passed between the condemnors and the landowners, including the condemnors' final offers, and the right-of-way agents' notes about landowner contacts.
In all the cases, the landowners filed cross-motions for partial summary judgment and pleas to the jurisdiction, arguing that the trial courts lacked jurisdiction over the condemnation proceedings because the condemnors failed to comply with section 21.012's "unable to agree" requirement. The landowners argued that the condemnors could not satisfy the "unable to agree" requirement unless they established that they had engaged in "good faith" negotiations with the landowners before initiating condemnation proceedings. The landowners asserted that the condemnors' offers were not "bona fide" or made in good faith because the offers were subject to the landowners' executing the right-of-way agreements attached to the final offer letters, which included the three additional matters that the condemnors had not explicitly sought to condemn and that the landowners maintained the condemnors could not legally condemn. The landowners also objected to Dunwoody's affidavits as hearsay, conclusory, and incomplete. The landowners' summary judgment evidence consisted primarily of the condemnors' admissions that the landowners had to sign the proposed right-of-way agreements in order to accept the offers.
The trial court in each of the cases initially granted the condemnors' motions for partial summary judgment and overruled the objections to Dunwoody's affidavits. Five of the cases—Hubenak 1, Hubenak 2, Wenzel, Kutach, and Cusack Ranch...
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Table of cases
...Ill. 1998), App. 25-2 Hubbard v. Rubbermaid, Inc. , 78 F.R.D. 631 (D. Md. 1978), §40:2.B Hubenak v. San Jacinto Gas Transmission Co. , 141 S.W.3d 172, 184 (Tex. 2004), §24:2.B Huckabay v. Moore , 142 F.3d 233 (5th Cir. 1998), §§18:6.B.4, 20:4.C Hudson v. Reno , 130 F.3d 1193 (6th Cir. 1997)......