Pinnacle Gas Treating, Inc. v. Raymond Michael Read, Mark William Read, Owners, and Thomas I. Fetzer, II, Lienholder--Appeal from 278th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-00-00200-CV

PINNACLE GAS TREATING, INC.,

Appellant

v.

RAYMOND MICHAEL READ,

MARK WILLIAM READ, OWNERS,

AND THOMAS I. FETZER, II,

LIENHOLDER,

Appellees

From the 278th District Court

Leon County, Texas

Trial Court # 11745-A

OPINION AFTER REMAND

This condemnation case is on remand from the Texas Supreme Court. Appellant, Pinnacle Gas Treating, Inc. ( Pinnacle ), a gas utility, is the condemnor. Appellees are the landowner-condemnees, Raymond Read and Mark Read.

Pinnacle brought this appeal, asserting (1) its condemnation proceeding should not have been dismissed for want of jurisdiction; (2) evidence of lost profits was improperly admitted; (3) the jury should not have been charged on lost profits; and (4) the court erroneously refused questions and instructions requested by Pinnacle. We held that the jurisdictional argument was moot because there had been a second, later condemnation proceeding, voluntarily filed by Pinnacle and agreed to by the Reads, whereby Pinnacle had gained possession of the easement it requested. Pinnacle Gas Treating, Inc. v. Read, 69 S.W.3d 240, 244 (Tex. App. Waco 2002), rev d, 104 S.W.3d 544 (Tex. 2003). We also held there was no error in admitting evidence or in the charge. Id. at 246. Thus, we affirmed the judgment. Id. The Supreme Court disagreed with our decision about mootness and remanded the case to us to consider Pinnacle's claims that the trial court erred in dismissing the first condemnation proceeding. Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544, 546 (Tex. 2003). Thus, we now consider whether the trial court correctly determined that it had no jurisdiction over the first condemnation.

PLEA TO THE JURISDICTION AND MOTION TO DISMISS

Pinnacle filed eight condemnation petitions with the district clerk in Leon County at the same time. Tex. Prop. Code Ann. 21.013(c) (Vernon 2004). Following the statute, the clerk filed the petitions on a rotating basis in the three district courts in the county that the clerk served. Id. 21.013(d) (Vernon 2004). This proceeding and one other were filed in the 278th District Court, whose elected judge was Jerry A. Sandel; three were filed in the 12th District Court, whose elected judge was William L. McAdams; three were filed in the 87th District Court, whose elected judge was Sam B. Bournias. Pinnacle then presented eight orders to Judge Bournias, who appointed the same three individuals as the special commissioners in each case. The commissioners took the oath and gave notice of the hearing. Id. 21.014-.016 (Vernon 2004). Appellees appeared at the hearing before the commissioners and presented evidence.

After Pinnacle objected to the award, Appellees urged that appointment of the three commissioners by a judge other than the regular elected judge of the court to which the proceeding was assigned effectively circumvented the requirement of section 21.013(d) that cases be assigned among the district courts on a rotating basis and violated section 21.014(a), which requires that the judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned shall appoint three . . . special commissioners. Id. 21.013(d), 21.014(a).

Judge Sandel heard the motion to dismiss in August 1999 and signed an Order dismissing the condemnation proceeding, dissolving the writ of possession that had been issued after the commissioners hearing and award, and ordering a trial to determine Appellees damages, attorney s fees, costs, and expenses. Id. 21.044 (Vernon 2000).

Pinnacle filed an appeal, asserting that the condemnation proceeding should not have been dismissed for want of jurisdiction. We dismissed that appeal as interlocutory. Pinnacle Gas Treating, Inc. v. Read, 13 S.W.3d 126, 127 (Tex. App. Waco 2000, no pet.).

In April 2000, a jury awarded $63,462.50 in attorney s fees, $3,413.65 in expenses, $2,550.00 in physical damages to the property, and $34,872.42 in damages from loss of use of the property ( lost profits ). The parties had agreed that the time period for damages in this trial was from the date of the first writ of possession to the date of the second writ, during which Pinnacle occupied the property under the disputed first writ.

Pinnacle advances several arguments about why Judge Sandel erred all based on the foundation that district judges are permitted to exchange benches. Article V, section 11 of the Constitution provides that the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. Tex. Const. art. V, 11. Section 24.017(d) of the Government Code, which applies to multi-county district courts, provides: A district judge who is assigned to preside in a court of another judicial district or is presiding in exchange or at the request of the regular judge of the court may, in the manner provided by this section for the regular judge, hear, determine, and enter the orders, judgments, and decrees in a case that is pending for trial or has been tried before the visiting judge. Tex. Gov t Code Ann. 24.017(d) (Vernon 2004).

Section 21.013(d) of the Property Code provides: District and county clerks shall assign an equal number of eminent domain cases in rotation to each court with jurisdiction that the clerk serves. Tex. Prop. Code Ann. 21.013(d). Section 21.014(a) provides: The judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned shall appoint three disinterested freeholders who reside in the county as special commissioners to assess the damages of the owner of the property being condemned. Id. 21.014(a).

Pinnacle argues that any interpretation of section 21.014(a) of the Property Code that fails to recognize Judge Bournias s authority to appoint the commissioners would necessarily create a conflict between the legislatively mandated rotation provision for condemnation proceedings and these exchange of benches provisions. The Reads argue that the condemnation statutes benefit the landowner and must be strictly followed to avoid constitutional implications. //

We need not decide whether trial judges may act for one another generally in appointing special commissioners, because in this case District Judge Sandel, in whose court the petition was filed, has determined that Judge Bournias did not act for him. He impliedly found that there was no constitutional exchange of benches. Tex. Const. art. V, 11 (may exchange districts, or hold courts for each other when they may deem it expedient).

He also found there was no statutory request of the regular judge for another judge to act in appointing the commissioners. // Tex. Gov t Code Ann. 24.017(d). Furthermore, section 24.017(d) of the Government Code is a general statute and section 21.014(a) of the Property Code is a statute specifically relating to condemnation proceedings, and a traditional statutory construction principle is that the more specific statute controls over the more general. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000); see also Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 701 (Tex. App. Waco 2002, pet. withdrawn agr.).

Finally, Rule 330(e) of the Rules of Civil Procedure, which Pinnacle points to as authority for Judge Bournias to appoint the special commissioners, cannot be the basis for overturning Judge Sandel s order. Such an interpretation of the procedural rule would conflict with section 21.014(a) of the Property Code, which specifically provides that the judge of the court to which the case is assigned shall appoint the special commissioners. Of course, a statute controls over a procedural rule. In re Chu, 2004 WL 360814, at *5 (Tex. App. Waco 2004, no pet. h.).

Pinnacle says that Judge Sandel s order threatens to irreparably damage the condemnation procedures for the entire state. We believe, however, that overturning the order would render the rotation statute meaningless because the elected judge would be denied control of the appointment process in his own court a result the legislature could not have intended. Pinnacle also says that the error, if any, was procedural and remediable by a trial on the merits in the district court. The parties agree that a condemnation proceeding is administrative in nature from the filing of the petition until a party files objections to the commissioners award, at which time it becomes a judicial proceeding. Tex. Prop. Code Ann. 21.014, 21.015, 21.018 (Vernon 2004).

An administrative order made without authority is void. Chocolate Bayou Water Co. and Sand Supply v. Texas Natural Resources Conservation Comm., 124 S.W.3d 844, 853 (Tex. App. Austin 2003, pet. filed) (An agency order may be void in the requisite sense on either of two grounds: 1) the order shows on its face that the agency exceeded its authority, or 2) a complainant shows that the order was procured by extrinsic fraud.); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179-80 (Tex. App. Corpus Christi 1999, orig. proceeding) (local rules provided no authority to the local administrative judge to unilaterally transfer cases; transfer order was void).

We have previously held a condemnation proceeding void where three special commissioners not named in the order held a hearing and awarded damages and the condemnor thereafter entered on the land. Matador Pipeline Inc. v. Watson, 626 S.W.2d 139, 140 (Tex. App. Waco 1981, writ ref d n.r.e.). In affirming an award of damages for trespass, we noted that the condemnation statutes must be strictly followed and that they exist for the benefit of the landowner. See id.; see also Seiler v. Intrastate Gathering Corp., 730 S.W.2d 133 (Tex. App. San Antonio 1987, no writ), overruled on other grounds, Schumann v. City of Shertz, 100 S.W.3d 361 (Tex. App. San Antonio 2002, no pet.). The special commissioners here had no more authority than those in Watson.

Pinnacle solicited the order from Judge Bournias in violation of the rotation statute. It should not be heard to complain about the results of its own acts.

We overrule Pinnacle s jurisdictional argument. In view of the limited remand, we do not further address the issues concerning damages or the court s charge to the jury.

CONCLUSION

Judge Sandel determined that Judge Bournias had not exchanged benches with him, held court for him, or acted at his request. In view of such a determination by the regularly elected judge of the court in which the proceeding was filed, we find no basis on which to overturn his ruling. We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed June 9, 2004

[CV06]