State v. Tamminga

• Decision Date: 21 August 1996
• Docket Number: No. 10-95-226-CV,10-95-226-CV
• Parties: The STATE of Texas, Appellant, v. Kars TAMMINGA, et ux., et al., Appellees.
• Court: Texas Court of Appeals

Page 737

928 S.W.2d 737

The STATE of Texas, Appellant, v. Kars TAMMINGA, et ux., et al., Appellees.

No. 10-95-226-CV.

Court of Appeals of Texas Waco.

Aug. 21, 1996.

Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, Laquita A. Hamilton, Deputy Attorney General for Litigation, David A. Talbot, Jr., Assistant Attorney General, Chief Transportation Div., Grady Click, Mark Heidenheimer, Assistant Attorneys General, Austin, for appellant.

Glenn Sodd, Clay Beard and Ron Edmondson, Dawson, Sodd, Moe, Jacobson & Beard, P.C., Corsicana, for appellees.

Before CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

This is a condemnation case in which the State appeals the trial court's order granting the landowner's motion for severance. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

In 1991, the State sought to condemn three separate parcels of property all owned by appellees, Kars and Grace Tamminga (hereafter the Tammingas), for the purpose of construction of the Superconducting Super Collider in Ellis County. The State originally brought three separate petitions for the condemnation of each of the three parcels, which we will refer to as Parcel A, Parcel B, and Parcel C. Approximately three years later, in March 1994, the Tammingas, in a motion that the State did not oppose, asked the trial court to consolidate the three condemnation petitions into one. The trial court granted the motion. After the consolidation, however, the State decided it no longer wished to condemn Parcel C, which the Tammingas assert is a "farm tract" that is "several miles away" from Parcels A and B. The record supports that assertion. Instead of dismissing the portion of the cause relating to Parcel C, on January 17, 1995, the State simply filed another condemnation petition that included Parcels A and B but excluded any mention of Parcel C. ¹ The State apparently intended for this later-filed petition, which we will refer to as the State's second amended petition, to supersede and supplant the three petitions for condemnation that had been previously consolidated by the trial court. See TEX.R. CIV. P. 64, 65; Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex.1980); Wren v. Texas Employment Comm'n, 915 S.W.2d 506, 508 (Tex.App.--Houston [14th Dist.] 1995, no writ); CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex.App.--Austin 1995, no writ).

In response to the amended condemnation petition filed by the State, the Tammingas filed a Motion for Attorney's Fees, Costs, Damages, and Other Expenses to recover the expenses they incurred in defending against the State's efforts to condemn Parcel C. They argued that Section 21.019 of the Property Code allows a landowner to recover such expenses when a condemnor brings a petition for condemnation that it later dismisses. TEX. PROP.CODE ANN. § 21.019 (Vernon 1984 & Supp.1996). ² Therefore, asserted the Tammingas, the State's exclusion of Parcel C in its second amended petition was tantamount to a dismissal of its original petition to condemn Parcel C, which clearly authorized the Tammingas to recoup their expenses pursuant to Section 21.019. It appears from the record that this motion was never ruled upon by the trial court.

The Tammingas subsequently filed a motion to sever the issues concerning Parcel C from Parcels A and B. Their intention in filing the motion for severance apparently was to compel the State either to proceed in its condemnation efforts against Parcel C or to be forthright in its decision to abandon its efforts to condemn Parcel C by expressly dismissing the severed cause, which would directly implicate the recoupment provisions of Section 21.019. The trial court granted the motion. ³

On appeal, the State contends that any separate identity each of the three condemnation petitions may have had was lost once the three cases were consolidated and that the three cases, consequently, became an indistinct condemnation of all three tracts together as one. As such, the State maintains it was free under Rule 63 of the Rules of Civil Procedure to amend its petition to reduce the amount of property it wished to condemn. See TEX.R. CIV. P. 63. We agree with the State that it possessed the authority to amend the consolidated condemnation petition, but we disagree with its conclusion that there was nothing left for the trial court to sever concerning Parcel C after the second amended petition was filed.

II. JURISDICTION

At oral argument, we raised the issue of whether we had jurisdiction to consider the State's appeal of the trial court's severance order. See Fandey v. Lee, 876 S.W.2d 458, 459 (Tex.App.--El Paso 1994, no writ) (appellate courts have the duty to ascertain their own jurisdiction). Our concern was whether the severance order properly rested within the consolidated cause of action or the cause of action that the Parcel C issues were severed into, which, as far as we can tell from the record, is still pending before the trial court. The State appealed the former cause but not the latter.

The Texas Supreme Court has spoken on this issue and determined that when a severance is ordered, the resulting two, or more, causes of action are equally separate and distinct and that each one of them, presuming the judgment therein is final, may be separately appealed. Kansas University Endowment Ass'n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961); Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78-79 (1959). Moreover, on appeal from any of these severed causes, the order of severance is subject to being set aside. Pierce, 329 S.W.2d at 78-79. The court on appeal has jurisdiction over the order of severance even though the severed cause on appeal may not be a complete cause of action without its consolidation with the remaining cause still pending before the trial court. Schieffer v. Patterson, 433 S.W.2d 418, 419 (Tex.1968).

In the case before us, the State's efforts to condemn Parcels A, B, and C were consolidated into a single cause. The Parcel C issues were then severed from that consolidated cause. The cause including Parcels A and B was then litigated until a final judgment was reached. The State now appeals from that judgment, contesting only the issue of whether the trial court's severance order was erroneous. We conclude that, under the authority of Schieffer, King, and Pierce, we have jurisdiction over the severance order even though the severed cause consisting solely of Parcel C is still pending before the trial court. Schieffer, 433 S.W.2d at 419; King, 350 S.W.2d at 19; Pierce, 329 S.W.2d at 78-79.

III. THE MERITS

The record is clear that the State's three petitions for the condemnation of Parcels A, B, and C were consolidated in March 1994. The record is also clear that in January 1995 the State filed a second amended petition for condemnation wherein it restated its intention to condemn Parcels A and B, but, by not including any mention of Parcel C, it also impliedly expressed its intention to longer pursue any condemnation proceedings against Parcel C. See TEX.R. CIV. P. 64, 65. The question to be decided is whether the State's second amended petition effectively wiped out the existence of the State's condemnation petition against Parcel C so that there was nothing left for the trial court to sever or whether the Tammingas' right to reimbursement under Section 21.019 was a viable, severable claim.

The State argues that a landowner is not entitled to compensation under Section 21.019 until the condemnor first formally files a motion to dismiss the condemnation proceedings, and, because the State never filed a motion to dismiss its action involving Parcel C, the State owes no compensation to the Tammingas. See Zucht v. City of San Antonio, 698 S.W.2d 168, 170 (Tex.App.--San Antonio 1984, no writ). While it is true that Section 21.019, literally read, requires that a motion to dismiss be filed before the trial court may order compensation for the landowner, we hold that the State's exclusion of Parcel C from its second amended petition effectively constituted a motion to dismiss within the meaning of Section 21.019. This amendment was not designed to reduce the amount of land to be taken at a single location or to clarify the interest to be taken. It had the effect of abandoning the State's right to condemn a tract of land separate and apart from the remaining property subject to condemnation--a tract originally the subject of an entirely separate proceeding.

The law is well-settled that, when a plaintiff files an amended petition that excludes a defendant named in a previously filed petition, that defendant is no longer a party to the plaintiff's lawsuit. TEX.R. CIV. P. 64, 65; Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.1972); Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833, 836 (1942) (orig. proceeding); CIGNA Ins. Co., 894 S.W.2d at 434; Abramcik v. U.S. Home Corp., 792 S.W.2d 822, 823 (Tex.App.--Houston [14th Dist.] 1990, writ denied) (on rehearing); Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 679 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.); Valdez v. Gill, 537 S.W.2d 477, 480 (Tex.Civ.App.--San Antonio 1976, writ ref'd n.r.e.). The plaintiff's failure to include the previously named defendant in his amended petition acts as a voluntary dismissal of that defendant. Id.

The law also is well-settled that, when a plaintiff fails to include in his amended petition a cause of action that he had included in a previously filed petition, that cause of action, too, is no longer before the trial court. TEX.R. CIV. P. 64, 65; Wu v. Walnut Equip. Leasing Co., 909 S.W.2d 273, 278 (Tex.App.--Houston [14th Dist.] 1995), rev'd on other grounds, appeal dism'd w.o.j., 920 S.W.2d 285 (Tex.1996); Harris v. Shoults, 877 S.W.2d 854, 855 (Tex.App.--Fort Worth 1994, no writ); Gage v. Langford, 615 S.W.2d 934, 940 (Tex.Civ.App.--Eastland 1981, writ ref'd n.r.e.). Just as in cases involving dropped defendants, the plaintiff's...