Lin v. Houston Community College System

• Decision Date: 27 May 1997
• Docket Number: No. 07-96-0341-CV,07-96-0341-CV
• Citation: 948 S.W.2d 328
• Parties: 119 Ed. Law Rep. 1265 Shihche Emanuel LIN and Sung-Ping Huang Lin, Appellants, v. HOUSTON COMMUNITY COLLEGE SYSTEM, Appellee.
• Court: Texas Court of Appeals

Page 328

948 S.W.2d 328

119 Ed. Law Rep. 1265

Shihche Emanuel LIN and Sung-Ping Huang Lin, Appellants, v. HOUSTON COMMUNITY COLLEGE SYSTEM, Appellee.

No. 07-96-0341-CV.

Court of Appeals of Texas Amarillo.

May 27, 1997.

Rehearing Overruled June 24, 1997.

Shihche Emanuel Lin, Houston, pro se.

Bracewell & Patterson, Jeffrey J. Horner, Andrew M. Edison, Houston, for, appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

BOYD, Chief Justice.

In seven points, appellants Shihche Emanuel Lin and Sung-Ping Huang Lin seek reversal of a condemnation judgment in favor of appellee Houston Community College System. In their points, appellants argue (1) the legal description in the original condemnation petition was so inadequate that the trial court lacked jurisdiction of the condemnation proceedings; (2) the description of the condemnation purpose in the condemnor's original petition was so inadequate that the trial court lacked jurisdiction of the condemnation proceedings; (3) appellee had not properly authorized the condemnation at the time it was filed; (4) the trial court lacked jurisdiction of the condemnation proceeding because proper notice of the hearing was not given; (5) the trial court erred in limiting the jury issues to award value only; (6) the jury's verdict was against the great weight and preponderance of the evidence; and (7) the trial court erred in sustaining an objection to evidence of back taxes paid as part of appellants' purchase price of the property. Disagreeing with those challenges, we affirm the judgment of the trial court.

The condemnation proceedings giving rise to this appeal were filed on December 3, 1992, and, on that date, the trial court appointed three commissioners to appraise the value of the property sought to be condemned. On February 11, 1993, appellants filed an instrument denominated "NOTICE OF HEARING ON MOTION TO RESCHEDULE SPECIAL COMMISSIONERS' HEARING CURRENTLY SET ON 16 FEB 93." Concomitantly with the filing of that instrument, appellants filed their "MOTION TO RESCHEDULE SPECIAL COMMISSIONERS' HEARING CURRENTLY SET ON 16 FEB 93" which contained a lengthy "MEMORANDUM OF POINTS AND AUTHORITIES." In that motion, appellants acknowledged they were served with notice of the commissioners' hearing on January 28, 1993. However, they alleged, they immediately requested a resetting of the hearing "due to the lack of legal representation" and their necessity to attend a hearing before the Armed Services Board of Contract Appeals in Falls Church, Virginia on February 4, 1993. They did not return until February 7, 1993, and thus, they reasoned, they had only nine days to prepare for the special commissioners' hearing. They argued that they could have evaded prompt service by leaving immediately for Virginia but they cooperated in the service of the notice by not doing so. Because the federal hearing was not concluded until February 7, 1993, "the notice of the said hearing was constructively served nine days prior to the hearing date," which, they reasoned, was so short as to deprive them of their due process rights under the federal constitution, and they sought a continuance of the hearing.

The request for a continuance was successfully contested by appellee and the hearing proceeded on February 16, 1993, at which time appellants appeared and participated. As a result of that hearing and on February 16, the commissioners made their report in which they found the value of the condemned property to be $65,000. On March 15, 1993, appellants filed their "DEFENDANTS' FIRST AMENDED OBJECTIONS TO AND APPEAL FROM SPECIAL COMMISSIONERS' FINDINGS AND DEMAND FOR A JURY TRIAL" which stated numerous alleged grounds as a basis for those objections and for the appeal. The case proceeded to trial, as a result of which the jury found the value of the property to be $51,000. Hence, this appeal.

Reiterated, in their first point, appellants challenge the sufficiency of appellee's legal description of their property sought to be condemned. In its original petition, appellee described appellants' property as:

12,625 square feet of land, more or less, being part of Lots 61 and 62, Crescent Island Subdivision, Houston, Harris County, Texas.

The land was additionally described as being "located wholly within the boundaries of the HCC in Harris County, Texas along the north line of N. McGregor Drive, approximately 200 feet west of State Highway 288. Once acquired through these proceedings, the Property will be used for school purposes. It is owned by Shihche Emanuel Lin and Sung-Ping Huang Lin."

It is well established that jurisdiction of a condemnation proceeding does not attach unless the condemnation petition includes a legally sufficient description of the property sought to be condemned. In the words of our supreme court, the reason for that requirement is "[u]nless the land to be taken is adequately identified, the owner cannot know what portion of his property is required, nor the commissioners what damages to assess, nor can the court by its decree effectively pass title." State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 790 (1960). The sufficiency of the petition's description of the property is tested by the standards used for adequacy of description in a deed. In Coastal Industrial Water Authority v. Celanese Corp., 592 S.W.2d 597, 600 (Tex.1979), the court, quoting Wooten v. State, 142 Tex. 238, 177 S.W.2d 56, 57 (1944), noted "[t]he certainty required in the description of the land in a condemnation proceeding 'is of the same nature as that required in conveyances of land, so that a surveyor could go upon the land and mark out the land designated.' " If the description is sufficiently certain that a surveyor could locate the tract, the fact that it might contain "a false and contradictory element of description is harmless." Boone v. Panola County, 880 S.W.2d 195, 196 (Tex.App.--Tyler 1994, no writ), quoting Roberts v. County of Robertson, 48 S.W.2d 737, 738 (Tex.Civ.App.--Waco 1932, writ ref'd). If the original petition contains a legally sufficient description, the trial court has power to permit amendments "provided this can be done without material prejudice to the landowner." State v. Nelson, 334 S.W.2d at 792.

Pointing out that there was a correct metes and bounds description of appellants' property in the county clerk's office as early as 1984 which was included in the deed conveying the property to appellants, they contend the fact that such a metes and bounds description was not contained in the condemnation petition made the description inadequate. Because of the inadequate description, they conclude, the trial court lacked jurisdiction of the condemnation proceedings. As additional support for their position, appellants point out the portion of the description in the condemnation petition which refers to the property as being located "200 feet west of State Highway 288," when appellants' first amended objections and the trial testimony showed the property was actually located east of State Highway 288. Thus, they reason, "even if the inadequate description of the property which the College sought to condemn could be ignored, the description of the property which the College sought to condemn still was internally inconsistent and ambiguous as to what precise property the college sought to acquire by condemnation." Appellants acknowledge that the trial court later allowed appellee to amend the description in its pleadings, but point out that the court's charge reverted to the original description, while the judgment contained, by incorporation of an exhibit to the judgment, a metes and bounds description inserted by appellee in its fourth amended petition, its live pleading. Therefore, they argue, this kind of "on-again, off-again amendment" emphasizes the wisdom and necessity of requiring a proper description from the outset and making it jurisdictional.

It is the general rule that a land description in a writing is sufficient if it furnishes within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 56-57, 188 S.W.2d 150, 152 (1945). Thus, if it is shown by extrinsic evidence that a grantor in a deed owns only a single tract answering the description, the land is identified with reasonable certainty. Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex.1977); see also Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222, 223 (1949) (description of a certain quantity of land out of a larger tract was sufficient when the deed further described the tract as "my property" and extrinsic evidence showed the grantor owned only one tract answering that description, the land was sufficiently identified); Crockett v. The Housing Authority of the City of Dallas, 274 S.W.2d 187, 189 (Tex.Civ.App.--Dallas 1954, no writ) (description in condemnation proceeding which included only name of addition to city and lot numbers without block numbers was sufficient where the condemnee only owned lots so numbered in one block within the addition); Henderson v. Priest, 591 S.W.2d 635, 636 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.) (description in divorce decree describing real property awarded wife and which described the property by street name and number as well as the parties' home, was sufficient to pass title when it was shown by extrinsic evidence that the property was the only real property owned by the parties).

In this case, the record, including appellant Shihche Emanual Lin's testimony, is sufficient to show the property involved in the condemnation was the only property owned by appellants within the Crescent Island Subdivision. The description contained within itself the means or data by which the property sought to be condemned could be identified. Thus, under the cited authorities, the original description would be sufficient to pass title in a...