Midtexas Pipeline v. Cusack ex rel. Cusack

• Citation: 141 S.W.3d 215
• Decision Date: 07 March 2002
• Docket Number: No. 13-00-734-CV.,13-00-734-CV.
• Parties: MIDTEXAS PIPELINE COMPANY, Appellant, v. Michael F. CUSACK, Trustee of the Michael F. CUSACK, Special Trust No. One, Appellee.
• Court: Court of Appeals of Texas

141 S.W.3d 215

MIDTEXAS PIPELINE COMPANY, Appellant, v. Michael F. CUSACK, Trustee of the Michael F. CUSACK, Special Trust No. One, Appellee.

No. 13-00-734-CV.

Court of Appeals of Texas, Corpus Christi.

March 7, 2002.

Appeal from the 25th District Court, Gonzales County, Gus J. Strauss, Jr., J.

Thomas E. Sheffield, League City, for appellant.

Richard L. McElya, William D. Noel, Angleton, for appellee.

Before Justices DORSEY, YAÑEZ, and RODRIGUEZ.

MEMORANDUM OPINION

Opinion by Justice YAÑEZ.

This appeal arises out of an attempt on the part of appellant, MidTexas Pipeline Company, to condemn property owned by appellee, Michael F. Cusack. The trial court dismissed the case for want of jurisdiction. We reverse and remand.

After attempting to purchase an easement from Cusack, MidTexas filed a petition for condemnation. Initially, the trial court granted a partial summary judgment for MidTexas, holding that: (1) MidTexas is a corporation with the power of eminent domain which has complied with all statutory prerequisites to filing the condemnation action; and (2) the only issue remaining is the amount of compensation to which Cusack is entitled. Over a year after the trial court granted the partial summary judgment, it issued a letter which stated that the trial court was of the opinion that Cusack was entitled to compensation of $24,000. In the letter, the court further ordered that the attorney for MidTexas prepare a judgment "reflecting the court's ruling."

Approximately two months after the court issued the letter, Cusack filed a plea to the jurisdiction and motion to dismiss for want of jurisdiction. Cusack argued that MidTexas had not established the jurisdictional requirement that it had failed to agree with Cusack on the amount of damages prior to instituting a condemnation proceeding. See Tex. Prop.Code Ann. § 21.012 (Vernon 1984). The motion to dismiss relied upon the holding in Hubenak v. San Jacinto Gas Transmission Co., Nos. 01-99-00691-CV, 01-99-00959-CV, 01-99-01359-CV, and 01-99-01360-CV, 2000 WL 1056416, 2000, Tex.App. LEXIS 4971 (Tex.App.-Houston [1st Dist.] 2000) opinion withdrawn on rehearing, 65 S.W.3d 791, 2001 Tex.App. LEXIS 8301 (Tex.App.-Houston [1st Dist.] December 13, 2001, no pet.). The trial court granted Cusack's motion and dismissed the action for want of jurisdiction. MidTexas now appeals the trial court's dismissal with one issue.

We find that the issues raised in this case are identical to those decided by this Court in Cusack Ranch Corp. v. MidTexas Pipeline Co., 71 S.W.3d 395, 2001 Tex.App. LEXIS 7983 (Tex.App.-Corpus Christi 2001, no pet.). In Cusack Ranch, this Court held that an offer by MidTexas identical to the one involved in the instant case was a legitimate offer, and could be considered in determining...