Mary Ruth Leonard and Elizabeth Blake Steinberg v. Coastal States Crude Gathering Company--Appeal from 79th Judicial District Court of Jim Wells County

No. 04-02-00238-CV
Mary Ruth LEONARD and Elizabeth Blake Steinburg,
Appellants
v.
COASTAL STATES CRUDE GATHERING CO.,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 99-07-0234-C
Honorable Terry A. Canales, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 14, 2003

AFFIRMED

This case arises from condemnation proceedings filed by Coastal States Crude Gathering Company ("Coastal") against Mary Ruth Leonard and Elizabeth Blake Steinburg ("the Leonards") in Jim Wells County. (2) After Coastal filed its petition, the trial court appointed three special commissioners to conduct a hearing. The special commissioners awarded the Leonards $20,738.00 in damages. The Leonards filed an objection arguing the damage award did not include the value of the improvements on the condemned land. Coastal then filed traditional and no-evidence motions for partial summary judgment arguing that it was entitled to judgment as a matter of law on the Leonards' claim that they acquired ownership of the improvements and were entitled to compensation for them. The trial court granted Coastal's motions. In seven issues on appeal, the Leonards challenge the trial court's order granting Coastal's motions for summary judgment. We affirm the trial court's judgment.

Statement of Facts

On February 15, 1964, the Leonards leased to Coastal approximately fifteen acres of land in Jim Wells County, Texas, "as a plant site for use in erecting, operating, maintaining, and removing a refinery, and other purposes of similar nature." The lease term was twenty-five years, with an option to renew for an additional twenty-five year period. Prior to the lease's expiration, in 1989, Coastal assigned 4.728 acres of the leased land to Pacific Gas & Electric ("PG&E"). In 1989, Coastal renewed its lease on the remaining 10.272 acres for ten years.

Prior to February 15, 1999, the second lease's expiration date, Coastal attempted to negotiate a lease renewal. Unable to agree on the terms, Coastal notified the Leonards that it hired an appraiser to evaluate the leasehold. Coastal also informed the Leonards that it contemplated condemnation as a solution, but it would not initiate condemnation proceedings until it was certain that negotiations would not be fruitful. During this negotiation and evaluation process, Coastal's second lease expired by its own terms, and Coastal remained on the property throughout the ensuing negotiations.

On March 31, 1999, Coastal offered to purchase the 10.272 acres identified in the second lease and an additional 8.024 acres adjoining it to the south. The offer was for $1,100.00 per acre or $20,125.00, which was the appraiser's fair market value assessment. (3) In response to Coastal's purchase offer, the Leonards sent a letter, dated June 4, 1999, demanding that all of Coastal's and PG&E's personnel vacate the premises on or before July 15, 1999 and that all fixtures, equipment, and personalty be removed from the premises by August 15, 1999. The Leonards also stated that "[s]ubject to the exceptions noted below, [we] will accept all improvements, equipment and personalty remaining on the property which [Coastal ][and] [PG&E] did not remove." Despite their demands in the letter, the Leonards also indicated that they were willing to continue negotiating Coastal's offer to purchase the leasehold.

Meanwhile on July 2, 1999, the Leonards filed suit in Bexar County District Court asking Coastal to be enjoined from further use of the land and for Coastal to remove all structures and property and to restore the surface of the land. The Leonards also asked the court to issue an order dispossessing Coastal of the land and the fixtures on the land, or in the alternative, granting damages in the amount of $750,000.00.

On July 9, 1999, Coastal sent another offer to purchase the 18.296 acres described in its first letter plus a .137 acre surface site, a 50 foot wide strip connecting the surface site to the larger tract, and an easement for three pipelines. This offer was for $20,775.70, which included $1,110.00 per acre, plus $1458.00 for the easement.

The Leonards did not respond to Coastal's last proposal, and on July 22,1999, Coastal initiated condemnation proceedings in Jim Wells County against the Leonards. Coastal sought to condemn, in fee simple, approximately 18.887 acres of land, 1.89 acres that connected the surface site to the larger tract, and a pipeline easement. The Jim Wells County District Court appointed special commissioners to consider Coastal's petition. On September 3, 1999, the special commissioners conducted a hearing, which the Leonards did not attend. The Leonards were awarded $20,738.00 in damages, to which they later filed an objection. Although the Leonards admitted Coastal had a right to condemn the land, they objected to the amount of the award because it did not include the value of the improvements made by Coastal, to which the Leonards now claimed ownership. (4)

In August 2001, the Leonards filed a non-suit in the Bexar County litigation. On October 24, 2001, Coastal moved for traditional and no-evidence motions for partial summary judgment in the Jim Wells County condemnation proceedings arguing that the Leonards' claim of ownership of the improvements could not survive as a matter of law. The Leonards did not submit any evidence in response. Instead, they asserted various legal theories to prove how they acquired ownership of the improvements. The trial court granted Coastal's motions and set a jury trial on the issue of damages. Because the jury could not agree on damages, the trial court withdrew the issue from the jury and issued an award of $30,402.75 to the Leonards. The Leonards now appeal the trial court's order granting partial summary judgment in favor of Coastal.

Standard of Review

Under a traditional summary judgment standard, a party moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); see Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied).

We review a no-evidence summary judgment de novo, reviewing the evidence in the light most favorable to the non-movant and disregarding all evidence and inferences to the contrary. Delgado v. Jim Wells County, 82 S.W.3d 640, 641 (Tex. App.--San Antonio 2002, no pet.) (citing Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment motion is improperly granted when the non-movant brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Id.; Gomez v. Tri City Cmty Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.--San Antonio 1999, no pet.).

Discussion

On appeal, the Leonards do not contest Coastal's right to condemn their land nor do they challenge the legal and factual sufficiency of the trial court's assessment of damages. Rather, the Leonards' complaint concerns the issues of whether they acquired ownership over the improvements made by Coastal and whether they were entitled to compensation for those improvements when their land was condemned.

Coastal filed both a no-evidence and traditional motion for summary judgment. In its no-evidence motion, Coastal argued that the Leonards' claim for additional compensation for the physical property, equipment, or other improvements is baseless because there is no evidence the Leonards owned the improvements. In its traditional motion for summary judgment, Coastal maintained that not only is there no evidence the Leonards owned any improvements, the summary judgment record establishes that Coastal owns the equipment for which the Leonards seek payment. To support its traditional motion for summary judgment, Coastal submitted the original lease agreement, the Leonards' admissions in their pleadings in the Bexar County lawsuit, correspondence between the Leonards and Coastal, and deposition testimony from Mary Leonard and Malcolm Steinberg.

To meet its summary judgment burden, Coastal first pointed to the terms of the lease. The second paragraph of the lease states the contract's purpose. Specifically, the Leonards agreed to lease property to Coastal to be used as "a plant site for use in erecting, operating, maintaining and removing a refinery, and other purposes of a similar nature." In addition, Coastal directed the court to the following default provision in the lease:

[L]essee shall have and is hereby given the right, at any time while not in default of any of its obligations hereunder, to cancel this lease upon payment of an additional sum equal to five years cash rental as liquidated damages and the execution and delivery to Lessors of a release of rights hereunder, except the right, within six months after delivery of such release, to remove all of its physical properties and with the obligation within the same period to restore the land to its condition as it exists at the time of the execution hereof.

(emphasis added). Coastal also relies on the termination provision in the lease, which states that:

Lessee does further agree to and with the Lessors that upon the termination of this lease, whether by lapse of time or under any of the provisions or conditions contained herein, Lessee will peaceably and quietly yield up and surrender the leased premises in the same condition as when received, the Lessee agreeing, in any such case, to remove all physical property and equipment which it may have placed thereon or therein, except such physical property and equipment as Lessee may be willing to abandon and Lessors may be willing to accept in place, and to level and restore the surface to its present condition.

(emphasis added). Coastal argues that these lease provisions are consistent with only one meaning: It owned the equipment placed on the leased portion of the condemned lands because one cannot mortgage, remove, or abandon property of another and one cannot accept title to property one already owns. Coastal also points out that these lease provisions only allowed the Leonards to acquire ownership over the property it was willing to abandon. And Coastal maintains that it did not expressly abandon the improvements it made on the leasehold; instead it continued to occupy the premises during the negotiations for purchase and the condemnation proceedings.

In addition, Coastal contends that the Leonards acknowledged its right to the equipment in their petition filed in the Bexar County lawsuit. In that suit, the Leonards demanded that Coastal cease trespassing on their land by July 15, 1999, remove all physical property and equipment by August 15, 1999, and restore the surface. In fact, in their prayer for relief, the Leonards asked for injunctive relief "requiring the immediate removal of all structures and property placed upon the land in which [they] are unwilling to accept, and the restoration of the surface."

Coastal also submitted a letter evidencing Coastal's title to the personal property at issue. The letter was written by the Leonards' attorney on June 4, 1999, and in it, the Leonards demanded that "all personnel of Coastal and PG&E vacate the premises . . . on or before July 15, 1999, and that all fixtures, equipment, and personalty that you intend to remove from the property be removed by August 15, 1999." Coastal insists that this proves it owned the improvements because the Leonards would not have requested it to remove their personal property when it vacated the premises.

Finally, Coastal points to deposition testimony from the Leonards' witnesses, Mr. Steinburg and Mrs. Leonard. In his deposition, Mr. Steinburg admitted that he did not know who owned the equipment located on Coastal's ten acre leasehold. Similarly, Mrs. Leonard admitted that she did not own any of the improvements on the leasehold. Her deposition states the following:

Q: At the time you and Mr. Albin went out and looked at the property were you under the impression that you owned any of those fixtures that were out there?

A: No.

Q: So when you said the property was valuable or good property considering the improvements on it, why was he including the improvements?

A: I don't know.

Q: Okay. Did you ever make any claim to the improvements on this leasehold property, the 15 acres, before this lawsuit was filed?

A: No.

Q: Do you know of any - are you making a claim to any of the improvements?

A: You would have to ask my attorney what the claim is. I have an attorney. I would refer to him.

. . . .

This evidence was sufficient to meet Coastal's initial summary judgment burden. The evidence demonstrates that the purpose of the lease was for Coastal to install equipment to operate a refinery. It also shows that once the lease expired, Coastal was allowed to remove such equipment. The testimony from the Leonards supports Coastal's contention that it owned the equipment installed on the leasehold.

Nevertheless, in response to these submissions, the Leonards offered no evidence to raise a genuine issue of material fact on the ownership of the improvements. In fact, the Leonards argued that no evidence was necessary. Instead, they advanced various legal arguments to show that Coastal no longer owned the improvements at the time of Coastal's condemnation. The Leonards raise these same arguments on appeal.

A. Coastal Admitted in its Condemnation Petition that the Leonards Owned the Equipment

In the Leonard's third issue, they argue that in Coastal's condemnation petition, it expressly admitted the Leonards owned title to the land and the improvements located on the land. The Leonards contend this admission is "evidence of their ownership preclusive of summary judgment." To support this argument, the Leonards focus on the following two paragraphs from Coastal's original Petition for Condemnation:

Petitioner is engaged as a common carrier in the pipeline business in the State of Texas in accordance with the statutes in such cases made and provided and is now engaged in the operation of a pipeline in Jim Wells County, Texas, for the transportation of oil, oil products, gas, liquified minerals, and other mineral solutions in the State of Texas, and it is necessary for the construction, maintenance, repair, replacement, operation and removal of appurtenant facilities, including but not limited to, pipes, tanks, pumps fittings, meters, pig sites, and other appliances above and below ground, appurtenant to common carrier pipelines, including the one above referenced that your Petitioner take, acquire, hold, and enjoy for such pipeline purposes and appurtenances, certain real property and easements on certain real property situated in Jim Wells County, Texas. . . .

It is necessary for the construction, maintenance, repair, replacement, operation and removal of such appurtenant facilities above described to enter upon, condemn, appropriate, acquire, take, hold, and enjoy that portion of the Subject Property ... in fee simple subject to any valid and subsisting easements of record affecting the same; and save and except, to be excluded from this taking, all oil and gas and other minerals in, under that or may be produced therefrom. . . .

(emphasis added). The Leonards admit that Coastal's petition does not expressly state that it was taking both the physical property and equipment located on the land. They maintain, however, that the words "appurtenant facilities" refer to the improvements, and Coastal sought the condemnation of the land as well as the "appurtenant facilities." The Leonards insist that by taking for itself the "appurtenant facilities," or improvements, Coastal admitted that the Leonards owned them.

The Leonards' claim cannot succeed because it is based on Coastal's Original Petition for Condemnation, which was superceded by Coastal's First Amended Petition for Condemnation. It is well-established that although the pleadings in a case are regarded as judicial admissions, when a pleading has been abandoned, superceded, or amended it ceases to be a judicial pleading and ceases to be a judicial admission. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729 (Tex. 1941); Brooks v. Ctr. for Healthcare Servs., 981 S.W.2d 279, 283 (Tex. App.--San Antonio 1998, no pet.). In this case, Coastal submitted its original petition on July 22, 1999 and filed an amended petition on October 31, 2001. Although Coastal filed its motion for summary judgment on October 24, 2001, at the time the Leonards responded to Coastal's motion, Coastal's amended petition was the live pleading. (5) Therefore, any alleged admission made in Coastal's original pleading was no longer a judicial admission.

Because the alleged admission was in a superceded pleading, the Leonards were required to introduce Coastal's original petition into evidence to rely on it as summary judgment evidence of an admission. Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex. 1980); Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487, 504 (Tex. App.--Texarkana 2001, pet. granted). The Leonards, however, did not submit Coastal's original petition as summary judgment evidence. Accordingly, the Leonards cannot rely on the superceded petition to support their contention here. We overrule the Leonard's third issue.

B. The Ownership of the Improvements Reverted to the Leonards Under the Terms of the Lease

In their fourth, fifth, and sixth issues, the Leonards assert the following claims, presumably to argue that as a matter of law they acquired ownership of the improvements:

1) "[S]ince reversion of appurtenant facilities occurred, on or before September 21, 1999, the summary judgment was fatally flawed because it denied compensation for the full fair market value of the land as improved."

2) "[A]lternatively, if the reversion of the appurtenant fixtures was to occur after the taking, compensation for the taking of the future interest must be made."

3) "[U]pon the taking of a future leasehold reversion, the vestiture of which is 'imminent,' the full, fair market value of the realty, as improved, must be apportioned between the tenant and the landlord."

Because these three issues concern the Leonards' contention that the lease agreement granted them a property interest in the improvements installed by Coastal during the lease, we will address them together.

The Leonards' arguments are based on the following language set out in two different clauses in the lease. The first clause, which addresses the rights of the lessee if it chooses to cancel the lease, states that the

lessee shall have and is hereby given the right, at any time while not in default in any of its obligations hereunder, to cancel this lease upon payment of an additional sum ... and delivery to Lessors of a release of all rights hereunder, except the right, within six months after delivery of such release, to remove all of its physical properties and with the obligation within the same period to restore the land to its condition as it exists at the time of the execution hereof.

(emphasis added). The second clause, which details the lessee's rights upon termination of the lease, states that

[l]essee does further agree to and with the Lessors that upon the termination of this lease, whether by lapse of time or under any of the provisions or conditions contained herein, Lessee will peaceably and quietly yield up and surrender the lease premises in the same condition as when received, the Lessee agreeing, in any such case, to remove all physical property and equipment which it may have placed thereon or therein, except such physical property and equipment as Lessee may be willing to abandon and Lessors may be willing to accept in place, and to level and restore the surface to its present condition.

(emphasis added). The Leonards insist that these two clauses should be read together. The second clause, which is the clause in controversy, requires Coastal upon termination of the lease to remove all of the property and equipment that it was not willing to abandon within a reasonable time. The Leonards concede there is no time frame specified for Coastal to remove the improvements when the lease expires. However, they argue that because the cancellation clause allowed Coastal to remove its improvements within six months of cancelling the lease, it is logical to apply that six month time period to the context of the lease's termination. Also to support their contention, the Leonards rely on their June 4, 1999 letter to Coastal that demanded Coastal remove the improvements by August 15, 1999, which was six months after the termination of the lease. We hold, however, that the Leonards' claim cannot succeed here.

First, we address the Leonards' interpretation of the lease agreement. When interpreting an agreement, such as the lease, our primary goal is to ascertain and give effect to the parties' intentions as expressed in the lease. See Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex 1999). In doing so, we must avoid a construction which is unreasonable, inequitable, and oppressive, and will therefore not declare a forfeiture unless it is compelled by language that can be construed in no other way. See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987). Forfeitures are not favored in the law because of their harshness. Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex. 1990). The law thus recognizes that forfeiture will not be read into a contract where the alleged forfeiting party is not on fair notice of its application. Smith v. Outdoor Systems, Inc., No.14-00-00474-CV, 2002 WL 370200, at *2 (Tex. App. -- Houston [14th Dist.] Mar. 7, 2002, pet. denied)(not designated for publication). In the instant case, the first provision cited by the Leonards requires Coastal to remove all improvements within six months only in the event Coastal cancels the lease. The second provision demands Coastal's removal of all equipment it was not willing to abandon upon termination of the lease, but no time limitation for removal is expressed in this provision. There is no language in the lease linking these two provisions or requiring that the time limitation in the cancellation clause be imposed in the context of the lease's termination. Therefore, the Leonards' interpretation of these two paragraphs, as essentially requiring removal of the improvements within six months of the lease's termination, is not plainly set forth in the lease. We decline to interpret the lease in such a manner because we do not believe the parties expressly intended to require removal of the improvements within six months of the lease's termination or they would have specifically included a time frame in the termination provision when the lease was negotiated. The Leonards now ask us to import that six month time frame into the termination provision so that a forfeiture of the improvements can be declared. However, in light of our duty to ascertain the parties' true intentions from the lease and to avoid a construction that declares a forfeiture unless it is compelled by the lease's language, we hold that Coastal was not obligated to remove the improvements within six months of the lease's termination. See Elliott-Williams Co., 9 S.W.3d at 803; see Reilly, 727 S.W.2d at 530.

The Leonards also appear to argue that even if Coastal was not required, by the lease, to remove the equipment within six months, Coastal was still obligated to remove the equipment within a reasonable time. The Leonards insist that the release provision in the lease is evidence of what was a reasonable time in this case, and because Coastal did not remove the improvements within six months of the lease's termination, it forfeited title to that equipment. Implicit in the Leonards' argument is that Coastal abandoned or intended to abandon the improvements on the leasehold. Because there was no evidence presented that Coastal ever intended to abandon the equipment on the leasehold, we reject the Leonards' forfeiture argument. In fact, a similar issue was addressed in Vermillion v. Fidel, 256 S.W.2d 969 (Tex. Civ. App.--1952 Amarillo, no writ). In that case, the lessor leased a tract of land, in August 1970, for the purposes of oil and gas development. The terms of the lease authorized the lessee to lay pipe lines, build tanks, power stations, structures and to provide other equipment for the production and preservation of gas oil. Id. at 969. Apparently, the lessee continued to produce oil until 1948. Id. at 970. The lessor filed suit, on August 10, 1950, arguing the lease terminated in October 1948 by reason of cessation of production, and the title to the equipment remaining on the lease had been forfeited because the lessee failed to remove the equipment within a reasonable time. Id. In response, the lessee claimed he had no intention of abandoning the leasehold or equipment, and in fact, had been in negotiations with the lessor to deepen the oil well for further production and save a valuable investment. Id. at 970.

When analyzing the issue of forfeiture, the Vermillion court first observed that in general a failure to remove trade fixtures can result in a forfeiture, which means the fixtures become part of the realty and the owner of the fee is vested with title in the fixtures. Id. at 971 (citing Terry v. Crosswy, 264 S.W. 718, 720 (Tex. Civ. App.--Beaumont, no writ). However, the court also recognized that "'forfeitures are looked upon with disfavor by the courts, and that the party to a contract claiming the benefit of a forfeiture clause must clearly show that the contract has been breached by the other party in the particular manner providing for a forfeiture.'" Id. at 971 (citing Lewis v. Clark,149 S.W.2d 244, 248 (Tex. Civ. App.-- San Antonio 1941, dism'd judgm't cor.); see Criswell, 792 S.W.2d at 948. The court also noted that a reasonable time is defined as "'such length of time as may fairly and properly and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; that time which as rational men the parties to a contract ought to have understood each other to have in mind; that time which preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.'" Vermillion, 256 SW2d at 971 (citing Lewis, 149 S.W.2d at 248). In addition,

[t]hat which constitutes a reasonable time is a question of fact or, at least, a mixed question of law and fact and depends upon the circumstances surrounding the case to which the principle is sought to be applied. What would be a reasonable time in one case might be wholly inadequate to shut off the rights of parties in a different case or under different circumstances.

Id. In applying this law, the Vermillion court held the record showed that lessees never intended to forfeit their claim to the equipment and "did not intend to abandon the well or lease without first trying to drill the well deeper, cause reproduction and thus save their investment in accordance with their negotiations...." Id.

The reasoning in Vermillion is applicable to this case. Here, the record shows that prior to February 15, 1999, the second lease's expiration date, Coastal attempted to negotiate a lease renewal. Unable to agree on terms for a new lease, Coastal hired an appraiser to evaluate the leasehold. Coastal also informed the Leonards it considered condemnation as a solution, but it would not commence proceedings until it was certain that negotiations had failed. On March 31, 1999, Coastal offered to purchase the leasehold. The Leonards apparently did not respond to Coastal's purchase offer, but instead sent a letter, on June 4, 1999, demanding that Coastal vacate the premises and remove all fixtures by August 15, 1999. The letter also stated that despite their demands, the Leonards were willing to continue negotiations on Coastal's offer to purchase the leasehold. Coastal extended another offer to purchase the land on July 9, 1999. Again receiving no response to its offer, Coastal initiated condemnation proceedings against the Leonards on July 22, 1999.

There is nothing in the record to reflect Coastal's intent to abandon the land or the improvements. Quite the opposite, it appears Coastal never vacated the premises or the improvements. Rather, it is clear from Coastal's actions that it intended to continue using the land. Because there is no evidence of probative force to show intentional abandonment, we hold that Coastal did not forfeit ownership of the improvements on the leasehold. Accordingly, we overrule the Leonards' fourth, fifth, and sixth issues.

C. Presumption of Ownership Under the Standard Procedure

In their first issue, the Leonards argue that under the standard condemnation procedure provided in the Property Code, all land and improvements are presumed to be owned by the condemnees. To support their argument, the Leonards cite to sections 21.011 to 21.016 of the Texas Property Code, sections 231, 233, and 235 of the third edition of Texas Jurisprudence, and Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793 (Tex. 1936). Based on this authority, the Leonards assert there is a statutory presumption that they owned the land and the improvements located on the land.

However, after reviewing Coastal's petition for condemnation and both parties' briefs, it is clear that Coastal did not claim superior title to the Leonards' land. There is no dispute that the Leonards owned the real property Coastal sought to condemn. Therefore, whether there is a presumption of ownership concerning the land is moot. In addition, after reading the authorities to which the Leonards cite, we conclude none of them discuss a statutory presumption of ownership of improvements. In addition, we have found no authority to support the Leonards' contention regarding the improvements. Therefore, we overrule the Leonards' first issue.

D. Coastal's Failure to File its Condemnation Petition under the Alternative Procedure

In their second issue, the Leonards contend that "to challenge condemnee's ownership of land or appurtenant facilities, proceedings must be filed Ab Initio under the 'alternative pleading' statute, reflected in sections 21.003 and 21.064 of the Texas Property Code." Although the Leonards cite to sections 21.003 and 21.064 of the Texas Property Code, it appears that they actually rely on section 21.017 of the Texas Property Code. That section, entitled "Alternative Pleadings," provides that:

(a) This state, a political subdivision of the state, a person, an association of persons, or a corporation that is a party to a suit covered by Section 21.003 of this code by petition, cross-bill, or plea of intervention may assert a claim to the property or, alternatively, seek to condemn the property.

(b) A plea under this section is not an admission of an adverse party's title to the property in controversy.

Tex. Prop. Code Ann. 21.017 (Vernon 1984) (emphasis added). In their brief, the Leonards do not explain the relevance of this statute. However, we believe their complaint is that because they first filed a suit in Bexar County asking for an injunction, Coastal was required by statute to file its petition for condemnation in that suit, either as a cross-claim or cross-bill, rather than file a separate petition for condemnation in Jim Wells County. But the Leonards do not cite to any authority showing that this was a mandatory procedure nor have we found any such authority. In addition, the Leonards do not explain either in their summary judgment response or on appeal how this procedural device helps them to establish their claim of ownership of the improvements. Because we conclude that the Leonards have not adequately briefed their argument, we overrule this issue as well. See Tex. R. App. P. 38.1(h).

E. Seventh Issue

In their seventh issue, the Leonards contend that "when the 'standard procedure' is selected by the condemnor, third parties may not be injected into the proceeding nor may they participate in the compensation." However, the Leonards do not adequately explain what their complaint is, do not provide relevant authority to support their contention, and do not identify the alleged "third party." Accordingly, we hold that the Leonards' waived this issue on appeal. See Tex. R. App. P. 38.1(h). We overrule their seventh issue.

Conclusion

Based on the foregoing, we hold that the trial court did not err by finding, as a matter of law, that the Leonards did not own the improvements. We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

1. Although Judge Canales presides over the 79th Judicial District Court in Jim Wells County, the Honorable Joaquin Villarreal was the judge assigned to preside over this case, and he signed the summary judgment order.

2. Coastal filed condemnation proceedings pursuant to section 111.019 of the Texas Natural Resources Code. Tex. Nat. Res. Code Ann. 111.019 (Vernon 2001).

3. PG&E also made an offer to purchase approximately 4.728 acres it received by assignment from Coastal. Its offer was for $1,200.00 an acre or $5,673.00.

4. It appears that the improvements at issue include, but are not limited to pipes, tanks, pump fittings, meters, pig sites, and "other appliances above and below the ground, appurtenant to common carrier pipelines."

5. In fact, in the Leonards' response to Coastal's motion, they refer to Coastal's First Amended Petition for Condemnation.