Pitts v. Sabine River Authority of Texas

• Decision Date: 29 May 2003
• Docket Number: No. 06-02-00128-CV.,06-02-00128-CV.
• Citation: 107 S.W.3d 811
• Parties: Hollis D. PITTS and Sandra Pitts, Appellants, v. SABINE RIVER AUTHORITY OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 811

107 S.W.3d 811

Hollis D. PITTS and Sandra Pitts, Appellants, v. SABINE RIVER AUTHORITY OF TEXAS, Appellee.

No. 06-02-00128-CV.

Court of Appeals of Texas, Texarkana.

Submitted May 14, 2003.

Decided May 29, 2003.

Rehearing Overruled June 24, 2003.

COPYRIGHT MATERIAL OMITTED

Karl C. Hoppess, Karl C. Hoppess & Associates, PC, William D. Noel, Law Office of William D. Noel, Houston, and G. Dean Soape, Soape & Associates, Carthage, for appellant.

Mike Parker, Law Offices of Mike Parker, PC, Carthage, Earl Roberts Jr., Attorney At Law, Longview, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

JACK CARTER, Justice.

After a jury trial, the trial court held that Sabine River Authority (Sabine) met the jurisdictional prerequisites necessary for bringing a condemnation proceeding. On appeal, the landowners, Hollis and Sandra Pitts, bring the following points of error: (1) the evidence was legally and factually insufficient to support the trial court's finding that Sabine made a bona fide offer to purchase the same easement it sought to condemn; (2) the evidence was legally and factually insufficient to support the trial court's finding that Sabine complied with TEX. PROP.CODE ANN. § 21.0111 (Vernon Supp.2003); and (3) the trial court committed reversible error by overruling the Pittses' objections to the jury charge.

Under Section 49.222 of the Texas Water Code, a district or water supply corporation may acquire by condemnation any land or easement for any of its projects or purposes, and the right of eminent domain must be exercised in accordance with Chapter 21 of the Texas Property Code. TEX. WATER CODE ANN. § 49.222 (Vernon 2000). It is undisputed that Sabine qualifies as a district with the authority to condemn certain property for any of its projects or purposes. See TEX. CONST. art. XVI, § 59(b). Pursuant to that authority, Sabine entered into a water supply agreement with Tenaska Gateway Partners (Tenaska), in which Sabine would supply water to Tenaska's electrical power generating plant located in Rusk County. In order to fulfill its obligations under the agreement, Sabine was charged with constructing and laying a pipeline from the Toledo Basin Reservoir to Tenaska's plant. Additionally, Sabine was responsible for securing the easements necessary for laying the pipeline.

In an attempt to secure the necessary easements, Sabine made an initial offer to purchase an easement over the Pittses' 162 acres located in Panola County. In its initial offer, Sabine offered the Pittses $9,964.50 for the following:

(i) the right, privilege and easement to construct, operate, maintain, protect, repair, test, alter, replace, move, abandon in place, access, inspect, or remove three pipelines and all appurtenances necessary thereto ... for the transportation of water on, over, under, across and through that tract of land (the "Easement Area") described on the attached Exhibit "A" and depicted on the attached Exhibit "B"; and (ii) unobstructed ingress and egress from the nearest public road to the Easement Area across the lands adjacent to the Easement Area owned by the [Pittses] in order to provide [Sabine] access to the Easement Area.

. . . .

2. During any installation of any Pipeline only, [Sabine] may utilize additional areas of land adjacent to the Easement Area for construction purposes.

The Pittses rejected that offer and made a counteroffer. In their counteroffer, the Pittses offered to sell an easement for $9,964.50 that limited ingress and egress, limited use of the rest of the tract of land during construction, and required Sabine to construct and maintain fences and gates around the easement. Sabine rejected the counteroffer. Subsequently, Sabine, by and through its attorney, tendered a letter to the Pittses dated November 1, 1999, which constituted a final offer before Sabine would initiate a condemnation proceeding. The letter provided, in pertinent part:

[Sabine] has determined to acquire an easement over and across a portion of your property for the laying, construction and maintaining a pipe lines [sic] for the transportation of water. Enclosed as exhibits "A" and "B" are the metes and bounds description and plat showing that portion of your property which [Sabine] designated for this project.

We have been, authorized by [Sabine] to offer on its behalf the aggregate sum of $8,080.00 for an easement over the property described in Exhibit "A."

.... If the offer is not acceptable to you or you do not contact me before the aforementioned time, it will be necessary for [Sabine] to instigate a proceeding in eminent domain to acquire this property immediately.

The Pittses objected to the letter as not specifically addressing their concerns with regard to ingress and egress, use of the rest of their land during construction, and construction and maintenance of fences around the easement.

Because the parties were unable to reach an agreement on the amount of damages, Sabine initiated a condemnation proceeding. See TEX. PROP.CODE ANN. § 21.012 (Vernon 1984). In its original petition, Sabine provided the following description of the property to be condemned:

Condemnor has determined that there exists a necessity for, and has determined to acquire by condemnation or otherwise, an easement 75-foot wide for the purpose of laying, constructing and maintaining pipe lines for the transportation of water from the Toledo Bend Reservoir to Rusk County, Texas, the centerline of said easement being more particularly described in Exhibit "A"....¹ Special commissioners determined that Sabine was entitled to the easement described in its petition and that the Pittses were entitled to $12,100.00 as a result of the taking. The Pittses objected to the commissioners' award, and they filed a plea to the jurisdiction and a motion to dismiss contending Sabine failed to meet the jurisdictional prerequisites needed to bring a condemnation proceeding. See TEX. PROP.CODE ANN. §§ 21.0111, 21.012. The proceeding was transferred to the county court at law to determine whether Sabine had complied with the applicable statutory provisions. After a jury trial, the trial court held that Sabine satisfied the statutory requirements, granted the requested easement, and awarded the Pittses $12,948.00 in damages.² The Pittses bring this appeal.

Before we reach the first point of error, a brief review of the procedural prerequisites for bringing a condemnation proceeding is necessary. "The Texas land condemnation scheme is a two-part procedure involving first, an administrative proceeding, and then if necessary, a judicial proceeding." Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984). When an entity with eminent domain authority seeks to acquire real property for public use, but is unable to agree with the owner on the amount of damages, the entity may begin a condemnation proceeding by filing a petition in the proper court. TEX. PROP.CODE ANN. § 21.012(a); Amason, 682 S.W.2d at 241. Such a 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, if known; and (4) state that the entity and the landowner are unable to agree on damages. TEX. PROP.CODE ANN. § 21.012(b). After a petition is filed, the trial court must appoint three special commissioners who assess the damages and file an award reflecting their opinions of the land's value. TEX. PROP.CODE ANN. § 21.014(a) (Vernon 1984); Amason, 682 S.W.2d at 241-42. If the condemnee is unsatisfied with the award, he or she may file an objection in the trial court. TEX. PROP.CODE ANN. § 21.018(a) (Vernon 1984); Amason, 682 S.W.2d at 242. The filing of an objection vacates the commissioners' award and, coupled with service of citation on the condemnor, forecloses reinstatement of the commissioners' award. Amason, 682 S.W.2d at 242. The proceeding converts into a cause of action with the condemnor as plaintiff and the condemnee as defendant. Id.

In their first point of error, the Pittses contend the evidence was legally and factually insufficient to support the trial court's finding that Sabine satisfied the "unable-to-agree" requirement before bringing this condemnation proceeding. In State v. Hipp & Dowd, the court held that, in order to comply with the "unable-to-agree" requirement, the condemnor must show (1) it made a single bona fide offer, which the condemnor in good faith believed was the amount of compensation due, and (2) the landowner rejected the offer. State v. Hipp; State v. Dowd 832 S.W.2d 71, 75-76 (Tex.App.-Austin 1992), writ denied as to Hipp & rev'd on other grounds as to DowdState v. Dowd, 867 S.W.2d 781, 783 (Tex.1993) (per curiam). A bona fide offer is not arbitrary or capricious, but is based on a reasonably thorough investigation and honest assessment of the amount of just compensation due the landowner as a result of the taking. Id. at 78-79.

Legal Sufficiency

In reviewing a legal sufficiency challenge, we consider only the evidence in support of the trial court's finding, disregarding all evidence and inferences to the contrary. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). If there is more than a scintilla of evidence in support of the trial court's judgment, we must affirm the judgment. Id.

The Pittses contend the land sought to be condemned was different from the easement Sabine sought to purchase during negotiations; therefore, Sabine could not have made a bona fide offer for the land sought to be condemned before initiating this condemnation proceeding. See TEX. PROP.CODE ANN. § 21.012. In support of their contention, the Pittses rely on Mid-Texas Pipeline Co. v. Dernehl, 71 S.W.3d 852 (Tex.App.-Texarkana 2002, pet. granted). In Dernehl, the condemnor, MidTexas, initially offered the condemnee, Dernehl, $13,331.00 for an easement which "(1) grant[ed] MidTexas the right to transport gas, oil,...