Gloria Grening Wolk and Bialkin Books v. Life Partners, Inc. ( 1999 )

Gloria Grening Wolk and Bialkin Boods v. Life Partners, Inc.

  IN THE

TENTH COURT OF APPEALS

No. 10-99-128-CV

     GLORIA GRENING WOLK

     AND BIALKIN BOOKS,

                                                                              Appellants

     v.

     LIFE PARTNERS, INC.,

                                                                              Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 99-181-4

MEMORANDUM OPINION

      Life Partners, Inc. (Life Partners) sued Gloria Wolk (Wolk) for defamation. The court entered an interlocutory default judgment on April 1, 1999, and after a hearing on damages, awarded $1.5 million in a final judgment dated April 9. Wolk, a resident of California, filed a special appearance under Rule 120a and a motion to vacate the default judgment. Tex. R. Civ. P. 120a. On April 27, within its 30-day plenary power under Rule 329b(d), the court denied the special appearance but granted a new trial. Id. 329b(d).

      Wolk filed an interlocutory appeal from the order denying her special appearance, as allowed by section 51.014 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 1999). Life Partners filed a notice of cross-appeal from the order granting the new trial.

      On May 21, Wolk filed in this court a motion to dismiss the cross-appeal for want of jurisdiction, pointing out that an order granting a new trial is an interlocutory, non-appealable order. That motion also seeks sanctions for a frivolous appeal. On June 11, she filed a motion to dismiss her own appeal. Both motions will be granted, and the motion for sanctions will be denied.

      A party may dismiss its own appeal under Rule 42.1(a)(2), which provides:

      (a) The appellate court may dispose of an appeal as follows:

. . .

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a)(2). Thus, Wolk’s motion to dismiss her appeal is proper and is granted.

      The next question is whether we may also dismiss Life Partners’ cross-appeal. As noted, Wolk’s motion to dismiss cannot preclude Life Partners from “seeking any relief to which it would otherwise be entitled.” See id. In this instance, however, Life Partners is seeking to set aside an order granting a new trial.

      Our Supreme Court is explicit on this question:

An order granting a new trial within [the plenary power] period is not subject to review either by direct appeal from the order, or from a final judgment after further proceedings in the trial court.

Cummins v. Paisan Const. Co., 682 S.W.2d 235, 236 (Tex. 1984) (per curiam). Life Partners could not have appealed from the order granting a new trial; it cannot appeal the order as a cross-appeal. Thus, we grant Wolk’s motion to dismiss the cross-appeal.

      Wolk’s motion for sanctions is denied.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Interlocutory Appeal and Cross-Appeal dismissed

Opinion delivered and filed June 23, 1999

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: justify; line-height: 0.388889in">Gulf, C. & S.F. Ry. Co. v. Ft. Worth & R.G. Ry. Co., 26 S.W. 54, 60 (Tex. 1894).

      Gulf addressed a collateral attack on the judgment arguing that it was void because the commissioners were disqualified. This is essentially the same as the attack by Read in this case. Read contends that because they were not lawfully appointed, the commissioners actions were void, and thus, Pinnacle’s objection to the award did not vest the trial court with jurisdiction to hear the condemnation suit. The Supreme Court rejected the idea that the commissioners actions were void and held that the trial de novo before a jury, which thus prevented the award by these allegedly disqualified commissioners from being entered as the judgment of the court, secured ample protection for the landowner.

      In 1935, the Supreme Court had the opportunity to reexamine the issue of the effect of the appointment of commissioners in violation of the condemnation statutes. The condemnation statutes, then as now, required the appointment of commissioners agreed upon by the parties. The county judge had failed to assign the commissioners agreed to by the parties. The Court held as follows:

By cross-assignment defendant complains of the action of the county judge in appointing certain commissioners, after he and a representative of the railway company had agreed upon certain other parties to be appointed. If this was erroneous, we do not think it was sufficient to invalidate the whole proceeding, and as defendant has full opportunity to contest the award of the commissioners on the question of damages, we do not see how he can be injured.

Fort Worth & D. N. Ry. Co. v. Johnson, 84 S.W.2d 232, 234 (Tex. 1935). Thus, again, the Supreme Court held that defects in the appointment of the commissioners did not invalidate the proceeding. The de novo appeal of the commissioner’s award was considered the appropriate manner of correcting the defect, if any.

      The Galveston Court of Civil Appeals ruled on a related issue in a direct appeal of a dismissal of an award because only two of the commissioners had attended the hearing. After an objection to the award was filed, the landowner requested that the trial court dismiss the condemnation proceeding. The trial court dismissed the case and the condemning authority appealed. The court held:

Under the above authorities the judgment of the trial court dismissing this case must, we think, be reversed and the cause remanded to the County Court at Law of Harris County, with instruction to the Judge thereof to proceed to trial in the condemnation suits so consolidated.

City of Houston v. Stovall, 249 S.W.2d 246, 248 (Tex. Civ. App.—Galveston 1952, writ ref’d n.r.e.). These holdings are consistent with the Supreme Court’s later holding that “The right of [de novo] appeal affords petitioner an adequate remedy for anything that may occur in the condemnation proceedings up to and including the award of the special commissioners.” Tonahill v. Gulf States Utilities Co., 446 S.W.2d 301, 302 (Tex. 1969); see also City of Bryan v. Moehlman, 282 S.W.2d 687, 689 (Tex. 1955)(“We therefore hold that the respondents had an adequate remedy at law [by de novo trial] in the county court and by appeal therefrom.”); Jefferson County Drainage Dist. No. 6 v. Gulf Oil Corp., 437 S.W.2d 415, 420 (Tex. Civ. App.—Beaumont 1969, no writ)(“...having participated in the hearing [before the condemnation commissioners] and having appealed [for trial de novo] to the County Court at Law, all matters were properly before that court...”).

      The cases of Walling v. State, 394 S.W.2d 38 (Tex. Civ. App.—Waco 1965, writ ref’d n.r.e.) and Matador Pipelines, Inc. v. Watson, 626 S.W.2d 139 (Tex. App.—Waco 1981, writ ref’d n.r.e.) are easily distinguishable. In both cases, two sets of three commissioners were appointed. In both cases it was the second set of commissioners that attempted to make the condemnation award. In both cases this court held that the second set of commissioners were nothing more than strangers to the proceeding and that their purported awards had no effect. In neither one of these two cases was the entire proceeding dismissed as argued for by Read. And in both cases the court expressed the opinion that it was proper to go forward in the pending condemnation proceeding. The underlying condemnation cases were not dismissed, therefore, it was unnecessary to file new condemnation proceedings as Read argues is required for a defect in the appointment process.

      Accordingly, I would hold that by taking a de novo appeal to the district court by objecting to the condemnation commissioners’ award, the parties were in the proper procedural posture to proceed to a jury trial on the issue of the fair market value of the property taken by Pinnacle for a natural gas pipeline easement across Read’s property and damages to the remainder. Accordingly, the trial court erred in dismissing the condemnation suit and proceeding to a trial on the claim for damages for wrongful entry upon and possession of Read’s property. Because the majority holds otherwise, I respectfully dissent.

MOOTNESS AND EQUITY

      To resolve Pinnacle’s first issue the majority has focused on the procedural posture of the case, in particular the filing of a second condemnation proceeding to condemn the same property. Read filed a supplemental brief as a result of this Court’s discovery during oral argument of the existence of the second proceeding. The supplemental brief regarding the effect of the second proceeding properly acknowledges the situation in which the parties find themselves and to which they have agreed. The brief contains the following passage:

...Although Pinnacle had previously taken possession of the condemned easement on May 21, 1997 pursuant to this cause of action, on April 24, 2000, Pinnacle filed its bond and received a writ of possession to occupy the same easement at issue in this cause pursuant to a second case in condemnation filed by it on March 27, 2000. (RR, v. 2, p. 91). The Condemnees could have objected to such filing and proceedings therein until all matters in this case were completed and, could have, in all probability, obtained an injunction against the prosecution of the second condemnation case pursuant to Section 65.011 of the Texas Civil Practice and Remedy [sic] Code and the holding in Brazos River Conservation & Reclamation Dist. v. Allen, 171 S.W.2d 842 (Tex. 1943). However, they acquiesced in and agreed with Pinnacle to allow it to have possession of and occupy the easement as a result of the second condemnation case and the order of possession and writ granted therein. This understanding was fully stated to the trial court in chambers outside of the presence of the jury venire and was reiterated in the presentations and arguments made to the Trial Court on the Motions in Limine. (RR, v. 2, p. 91). Pinnacle’s counsel set forth part of the terms and benefits in voir dire (RR, v. 2, p. 51) and, counsel for Condemnees agreed, during the trial of the case, to not bring up the issue of whether Pinnacle was wrongfully occupying the easement in violation of a court order or whether Pinnacle was committing a continuous trespass. (RR, v. 2, p. 91). Thereafter, both parties agreed and the entire trial was based on the terms of this understanding. (RR, v. 3, pgs. 9, 13, 89 & 90 and v. 4 pgs. 6 & 7). Pinnacle’s acquiescence and the benefits received by it under this agreement are obvious, (1) the Condemnees did not seek or obtain an injunction; (2) the damages for temporary possession were limited to a period terminating on April 25, 2000; (3) Pinnacle obtained legally enforceable possession and ceased to be subject to the Trial Court issuing a writ of possession to Condemnees thereby dispossessing Pinnacle at the time of judgment; (4) Pinnacle avoided having to file a supersedeas bond; and (5) Pinnacle avoided a trial where its continuous violations of the court’s order were enumerated. The Condemnees agreed and acquiesced to the possession of the easement by Pinnacle on April 25, 2000, because (1) it set the lawful date of taking as April 25, 2000 and (2) the Condemnees ceased to have to incur and pay large bills for fees and expenses, which they could little afford. For Pinnacle to have acquiesced and accepted the benefits from such understanding and for it to now be permitted to disavow such agreement would be unconscionable.

***

This narrows the issues before this Court on appeal to solely: (1) did the trial court properly dismiss this cause of action because of lack of jurisdiction; (2) were the damages awarded by the jury properly recoverable under Section 21.044 of the Texas Property Code; and (3) did the trial court abuse its discretion in admitting the Read’s testimony and denying additional instructions to the jury?

      All parties having agreed to the effect of having filed the second proceeding, and there being an issue of law properly presented to this court in this appeal, the resolution of which can and will impact the parties, it can hardly be said that the issue presented of the propriety of the trial court dismissing the condemnation proceeding is moot. Further, the parties have resolved the effect of the second proceeding on this one. Therefore, equity requires that we allow the parties to enjoy the benefits of their agreement, even if there may be some unforseen or unintended consequences. There is no insurmountable legal obstacle imposed by the existence of the second proceeding. I have no doubt that the trial court and the parties, upon issuance of our opinion, would be able to appropriately resolve any issues that may arise.

CONCLUSION

      For the reasons stated, I would reverse the trial court’s judgment dismissing the condemnation proceedings, awarding damages on the dismissal of the condemnation petition, and for wrongful possession.

                                                                               TOM GRAY

                                                                               Justice

Dissenting opinion delivered and filed January 9, 2002

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