State v. Hipp

• Decision Date: 06 May 1992
• Docket Number: Nos. 3-91-053-C,3-91-215CV,s. 3-91-053-C
• Citation: 832 S.W.2d 71
• Parties: STATE of Texas, Appellant, v. Shirrell D. HIPP, et ux., et al., Appellees. STATE of Texas, Appellant, v. C. Milton DOWD, et ux., Appellees.
• Court: Texas Court of Appeals

Page 71

832 S.W.2d 71

STATE of Texas, Appellant, v. Shirrell D. HIPP, et ux., et al., Appellees.

STATE of Texas, Appellant, v. C. Milton DOWD, et ux., Appellees.

Nos. 3-91-053-CV, 3-91-215CV.

Court of Appeals of Texas,

Austin.

May 6, 1992.

Dan Morales, Atty. Gen., Bonnie C. Lockhart, Mark Heidenheimer, Asst. Attys. Gen., Austin, for the State.

Sue Wall, John McClish, Womack & McClish, P.C., Austin, for Shirrell D. Hipp, et ux., et al.

John McClish, Kent A. Sick, Womack & McClish, P.C., Austin, for C. Milton Dowd, et ux.

Before CARROLL, C.J., and JONES and SMITH, JJ.

JONES, Justice.

These are condemnation cases. In separate causes, the State of Texas, appellant, acting by and through the State Highway and Public Transportation Commission, brought condemnation proceedings against Shirrell D. Hipp, et al., and C. Milton Dowd, et al. (collectively, "the landowners"), appellees, to acquire property for a highway project. Both cases were tried to a jury, and in each cause the jury failed to find that the State negotiated with the landowners in good faith for the purchase of the properties before bringing the condemnation actions. Following the return of the jury's verdict, the trial court in each case dismissed the State's condemnation suit and awarded attorney's fees to the landowners. The State has perfected an appeal in each cause. We will reverse the trial court's dismissal of cause number 3-91-053-CV (the "Hipp case") and render judgment in accordance with the jury finding as to the value of the property being taken by the State; we will affirm the judgment of the trial court in cause number 3-91-215-CV (the "Dowd case").

BACKGROUND

Both cases arise out of the State's efforts to acquire property necessary for the completion of two major highway projects. The Hipp case involved the taking of a whole property for the purpose of widening Ben White Boulevard in Austin. The Dowd case involved the taking of an 836-square-foot strip of land along the front of a 14,546-square-foot parcel for the purpose of widening and elevating U.S. Highway 183 in Austin. In each case, the Texas Department of Highways and Public Transportation (the "Highway Department") hired an independent professional appraiser to determine the value of the property to be taken. Once the independent appraisal was completed, a right-of-way appraiser employed by the Highway Department reviewed the appraisal. Based on the independent appraisal, the right-of-way appraiser then made a recommendation to the central Right-of-Way Division for the State. The Right-of-Way Division then reviewed the work of the independent appraiser and the right-of-way appraiser and made a final determination as to the amount of compensation to be offered the landowners for their property.

In each case, after the Right-of-Way Division had approved the compensation figure, a right-of-way agent employed by the Highway Department communicated the offer to the landowners. The landowners rejected the offers, whereupon the State instituted condemnation proceedings. In each proceeding the trial court appointed three Special Commissioners, who held a hearing and made an award of compensation to the landowners. In neither case did the landowners attend the Special Commissioners' hearing; and in both cases the landowners filed objections to the award of the Special Commissioners and a verified plea to the jurisdiction in the trial court.

In the trial of each case, three questions were submitted to the jury for their determination: (1) whether the State negotiated in good faith in an attempt to purchase the landowners' property before filing suit; (2) what amount of money would be necessary to compensate the landowners for the taking; and (3) what amount of reasonable and necessary attorney's fees and expenses had been incurred by the landowners. In both cases, the jury failed to find that the State had engaged in good-faith negotiations with the landowners before bringing suit. The trial court then dismissed both suits on that basis, awarding attorney's fees to the landowners. The State has appealed both cases to this Court, arguing that the evidence shows conclusively that it negotiated in good faith with the landowners before bringing suit.

LAW APPLICABLE TO BOTH CASES

1. Statutory Requirement

The Texas Property Code provides as follows:

(a) If ... this state ... 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.

Tex.Prop.Code Ann. § 21.012(a), (b) (1984) (emphasis added). The State has the burden of pleading and proving that before initiating the condemnation proceeding it was "unable to agree" with the landowner as to the amount of damages that would result from the taking of the landowner's property; absent such pleading and proof, the trial court lacks jurisdiction to entertain the proceeding or grant the requested relief. See City of Houston v. Derby, 215 S.W.2d 690, 692 (Tex.Civ.App.1948, writ ref'd); City of Austin v. Hall, 446 S.W.2d 330, 336 (Tex.Civ.App.1969), rev'd on other grounds, 450 S.W.2d 836 (Tex.1970); Isaac v. City of Houston, 60 S.W.2d 543, 545-46 (Tex.Civ.App.1933, writ dism'd).

2. Question for Judge or Jury?

Before we analyze the State's legal-sufficiency points, we address a threshold question: Should the judge or the jury decide whether the condemnor has met the unable-to-agree prerequisite to bringing a condemnation proceeding? The appellees assert that if there is a factual dispute on the issue, it is for the jury to determine. We disagree. For the reasons set out below, we conclude that the question is one for the judge, even if questions of fact exist.

As discussed above, if the condemnor fails to plead and prove that it was unable to agree with the landowner before bringing the condemnation action, the trial court must dismiss the suit for lack of jurisdiction. If we accept appellees' argument that a factual dispute as to the fulfillment of this statutory prerequisite is a question for the jury, an entire eminent-domain proceeding would be void and the case dismissed if, at the conclusion of the trial, the jury found that the condemnor had failed to satisfy the unable-to-agree requirement. In fact, that is what happened in each of the present cases; after a complete jury trial on all aspects of the condemnation proceedings (including the compensation due the landowners), the trial court dismissed the suit for lack of jurisdiction based on a failure to find that the State satisfied the unable-to-agree requirement. Such a process obviously results in an enormous waste of time and money for all parties involved, including the judicial system. The purpose of requiring the condemnor to plead and prove that it made a bona fide effort to agree is to prevent needless litigation. City of Nueces v. Rankin, 303 S.W.2d 455, 457 (Tex.Civ.App.1957, no writ). A process that permitted a complete jury trial simply to determine if the trial court had jurisdiction over the cause would frustrate that purpose.

We conclude that the trial judge should determine as a threshold matter whether the condemnor has satisfied the unable-to-agree prerequisite to bringing suit. Such a process comports with the general rule that the determination of jurisdiction is made by the court, not the jury. See Graham v. Graham, 733 S.W.2d 374, 377 (Tex.App.1987, writ ref'd n.r.e.); Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 760 (Tex.Civ.App.1954, no writ). A matter of first consideration by any court is the determination of its own jurisdiction. Barnes v. Bituminous Casualty Corp., 495 S.W.2d 5, 9 (Tex.Civ.App.1973, writ ref'd n.r.e.). Moreover, a court has the power to determine any facts on which its The landowners rely on Rankin, 303 S.W.2d 455, for the proposition that the jury may decide whether the condemnor has met the unable-to-agree requirement. Such reliance is misplaced. The issues presented in Rankin concerned the sufficiency of the evidence to support the jury's verdict. Rankin does not address the question of whether the judge or the jury should decide the unable-to-agree issue. To the extent Rankin can be read to stand for the proposition that the issue may be submitted to the jury whenever a fact question exists, we decline to follow it.

jurisdiction depends. See generally 21 C.J.S. Courts § 88 (1990); see also Texas & Pac. Ry. v. Gulf, Colo., & S.F. Ry., 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578 (1926); Mike Hooks, Inc. v. Pena, 313 F.2d 696, 700 (5th Cir.1963). Indeed, Texas courts must often resolve factual issues in making jurisdictional determinations. For example, when an issue of jurisdiction over the person exists, the parties present evidence to the trial court, and the trial court makes both factual and legal determinations as to the existence of in personam jurisdiction. See Tex.R.Civ.P. 120a; see also Fidelity Union Life Ins. Co. v. Orr, 648 S.W.2d 36 (Tex.App.1983, no writ). Thus, our conclusion that the judge, not the jury, should decide whether the condemnor has satisfied the statutory requirement comports with traditional Texas practice as to the determination of jurisdictional matters.

Finally, we note that in other jurisdictions the trial judge determines the unable-to-agree issue as a threshold matter before commencing the trial on the merits of the condemnation suit to determine just compensation due. See, e.g., Moody's Inc. v. State, 201 Neb. 271, 267 N.W.2d 192, 193 (1978); State v. Bair, 83 Idaho 475, 365 P.2d 216, 217-19 (1961); County Bd. of...