Texas Department of Transportation and City of Edinburg v. A.P.I. Pipe & Supply, LLC and Paisano Service Company, Inc.

NUMBER 13-07-221-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG TEXAS DEPARTMENT OF TRANSPORTATION AND CITY OF EDINBURG, Appellants, v. A.P.I. PIPE & SUPPLY, LLC AND PAISANO SERVICE COMPANY, INC., Appellees. On appeal from the County Court at Law No. 2 of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez The City of Edinburg (the City) and the Texas Department of Transportation (TxDOT), appellants, challenge the trial court's denial of their pleas to the jurisdiction in this accelerated interlocutory appeal. See Tex. R. App. P. 28. Appellees, A. P. I. Pipe & Supply, LLC and Paisano Service Company, Inc. (API) filed an inverse condemnation claim against appellants for removing dirt during construction of a drainage ditch. By one issue, the City and TxDOT contend that the trial court does not have jurisdiction over this case because they have immunity. We affirm. I. Background On February 24, 2003, the City filed a petition for condemnation in County Court at Law No. 4, Hidalgo County, Texas. The petition sought to acquire fee title to 9.869 acres of land out of Blocks 37, 38, and 39 of the Santa Cruz Ranch Subdivision for the public purpose of laying out, opening, constructing, reconstructing, maintaining, and operating a certain right-of-way for U.S. Highway 281 drainage outfall ditches. In its petition, the City set out the following: That the Plaintiff [the City] and the Defendant [H.B. White a/k/a Herschell B. White] (1) have been unable to agree on the value of said real estate and interest therein to be condemned or the damages occasioned by the acquisition of such land and ask that Special Commissioners be appointed as provided by law to assess the damages of the Defendant. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectively prays that three disinterested freeholders be appointed as Special Commissioners to assess the damages, [sic] of Defendant; that the said Special Commissioners filed [sic] their decision as required by law; that Plaintiff have a final judgment of condemnation vesting in the fee title to said land and the rights therein, all as more particularly set out above . . . . On April 25, 2003, a special commissioners hearing was held. White, the landowner at that time, and the City presented evidence of the value of the property based on appraisals prepared for each party by different appraisers. The appraiser hired by the City valued compensation due White at $165,196, and White's appraiser valued the compensation due at $326,721. Each appraiser valued the compensation based on a fee simple acquisition. The special commissioners awarded $224,249 to White as adequate compensation for the property being condemned. They also awarded the City "all rights described and prayed for in Plaintiff's Original Statement and Petition for Condemnation." On May 1, 2003, the City deposited $224,249 into the court's registry, and on May 7, 2003, White withdrew the money. Neither party objected to the award of the special commissioners. On June 3, 2003, Hidalgo County Court at Law Number 4 entered its "Judgment of Court in Absence of Objection" (2003 Judgment) adopting the special commissioners' award that vested fee title in the City. On May 19, 2004, the county court entered a "Judgment Nunc Pro Tunc" (2004 Judgment) regarding the same 9.869 acres of property. This order stated the following: [The City] is entitled to condemn, and [does] hereby have judgment against the above named Defendant and any other interested parties for a right of way easement over that real property described in Exhibit "A" and "B" for the purpose of opening, constructing and maintaining a permanent channel or drainage easement in, along, upon and across said property together with the right and privilege at all times of the Plaintiff herein, its agents, employees and representatives of ingress and egress to and from said property for the purpose of making any improvements, modifications or repairs which Plaintiff deems necessary. The 2004 Judgment also provided that it "supercedes and makes [the] 'Judgment of Court in Absence of Objection' signed on June 3, 2003 [,] null and void, without effect and vacated by this Court. This Court hereby enters the Judgment Nunc Pro Tunc as the sole and final judgment of the case." The 2004 Judgment was filed in the real property records on May 19, 2004, and, according to API, was approved by appellants. In September 2004, through a general warranty deed with a vendor's lien attached, API purchased approximately 34 acres from White. This purchase included the 9.869 acres of land at issue in this case, subject to an easement granted to the City as set forth in the 2004 Judgment. On June 22, 2005, the City granted an easement over the property in question to the State of Texas, by and through TxDOT, "for the purpose of opening, constructing and maintaining a permanent channel or drainage easement." On May 16, 2006, API filed its original petition against appellants, claiming inverse condemnation for the taking of soil located within the drainage channel. TxDOT and the City filed pleas to the jurisdiction which the trial court denied. This interlocutory appeal ensued. We affirm. II. Standard of Review The purpose of a plea to the jurisdiction is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A challenge to the trial court's subject matter jurisdiction is a question of law, which we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When necessary, we will consider relevant evidence submitted by the parties to resolve the jurisdictional dispute if the plea to the jurisdiction implicates the merits of the plaintiff's cause of action and relevant evidence is submitted by the parties. Id. at 227 (citing Bland Indep. Sch. Dist., 34 S.W.3d at 555). However, the court should consider only the evidence relevant to the jurisdictional issue. Bland Indep. Sch. Dist., 34 S.W.3d at 555. "[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Miranda, 133 S.W.3d at 228. However, a trial court cannot grant the plea to the jurisdiction if the evidence creates a fact question regarding the jurisdictional issue. Id. at 227-28. "[I]n some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact." Id. III. Applicable Law If a trial court attempts to correct a judicial rather than clerical error by signing a judgment nunc pro tunc after the expiration of its plenary power, the judgment is void. Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973). Judicial error is an error in rendering the judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). Judicial errors are predicated on a mistake of law or fact requiring judicial reasoning or determination to correct. W. Tex. State Bank v. Gen. Res. Mgmt. Corp., 723 S.W.2d 304, 306 (Tex. App.--Austin 1987, writ ref'd n.r.e.). A clerical error results when there is a discrepancy between the entry of judgment in the official record and the judgment as it was actually rendered. Universal Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex. 1971). A clerical error is not a substantive change in the judgment. Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.--Austin 1997, no pet.). Sovereign immunity generally protects the State and other governmental entities from suit. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Political subdivisions, including cities, are protected by governmental immunity unless waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). Sovereign immunity is properly asserted in a plea to the jurisdiction because it defeats the trial court's subject matter jurisdiction. Miranda, 133 S.W.3d at 226. However, in a proper inverse condemnation claim under Article I, Section 17 of the Texas Constitution immunity is waived for the taking, damaging or destruction of property for public use. Tex. Const. art. I, § 17; Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). To recover on an inverse condemnation claim, a property owner must establish that (1) the State or other governmental entity intentionally performed certain acts (2) that resulted in the taking, damage, or destruction of the owner's property (3) for public use. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). To recover on an inverse condemnation claim, the claimant must have owned the property at issue. See id. IV. Analysis By one issue, appellants generally contend they have immunity from suit. A. Judgment Appellants first argue that the trial court erred in denying their pleas to the jurisdiction because the 2004 Judgment is void and, thus, the 2003 Judgment granting the City fee simple title to the property at issue is the final judgment. API argues that the 2004 Judgment is not void and is the final judgment. In the 2003 Judgment, the county court adopted the special commissioners' judgment which awarded the City "all rights described and prayed for in Plaintiff's Original Statement and Petition for Condemnation." The City's prayer recited: Plaintiff [the City], respectfully prays that three disinterested freeholders be appointed as Special Commissioners to assess the damages, of Defendant; that the said Special Commissioners filed [sic] their decision as required by law; that Plaintiff have a final judgment of condemnation vesting in [the City] the fee title to said land and the rights therein . . . . (Emphasis added). Almost one year after entering its 2003 Judgment, the county court issued its 2004 Judgment awarding a right of way easement over the property. The trial court has plenary power to correct a clerical error made in entering final judgment but not to correct a judicial error made in rendering a final judgment. See Escobar, 711 S.W.2d at 231. "[T]he only action [the trial court] had power to take at the nunc pro tunc hearing . . . was to correct clerical errors, i.e. mistakes or omissions that prevented the judgment as entered from accurately reflecting the judgment that was rendered." Universal Underwriters Ins. Co., 471 S.W.2d at 29-30; see Tex. R. Civ. P. 316 (establishing that after a judgment becomes final and the trial court's plenary power expires, the trial court may correct clerical errors by a nunc pro tunc judgment); Escobar, 711 S.W.2d 230, 231; see also Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958) (stating in a condemnation proceeding, if no objections are timely filed, the trial court is required, as a matter of ministerial duty, to render judgment "on the [special commissioners'] award," and that award is not appealable). In this case, judgment was rendered when the county court entered the 2003 Judgment pursuant to the "Decision and Award of Special Commissioners." See State v. Garland, 963 S.W.2d 95, 98 (Tex. App.--Austin 1998, pet. denied) ("[T]he trial court can only perform its ministerial function and render judgment based upon the commissioner's [sic] award."). The 2003 Judgment awarded the City the property in fee, while the 2004 Judgment granted the City only an easement over the property, thus making a judicial rather than clerical correction. Because the trial court attempted to correct a judicial rather than clerical error by signing a judgment nunc pro tunc after the expiration of its plenary power, we conclude that the 2004 Judgment is void. (2) See Dikeman, 490 S.W.2d at 186. Therefore, the City acquired the property in fee simple pursuant to the 2003 Judgment. Nonetheless, API argues that the 2003 Judgment was not a final judgment because it did not dispose of all issues and parties and was not sufficiently definite and certain to define and protect the parties' rights. Further, API asserts that because the 2003 Judgment and its exhibits are vague and ambiguous by referring to a "right of way," "fee title," and a "drainage ditch," there is no way to ascertain exactly what the City acquired. We disagree. The 2003 Judgment expressly adopts the "Decision and Award of Special Commissioners," which in section one, awarded White, the landowner at the time, $224,249 as compensation. Moreover, pursuant to the "Decision and Award of Special Commissioners" adopted by the 2003 Judgment, the City acquired "all rights described and prayed for in Plaintiff's Original Statement and Petition for Condemnation." The City clearly prayed for the property in fee simple. (3) We are, thus, not persuaded by API's arguments. B. API's Interest in the Property Appellants next argue that because the 2003 Judgment awarded the City the property in fee simple, API does not have an interest in the property, and therefore, API cannot prove a proper inverse condemnation claim. In response, API argues that, as a good faith purchaser, it is not bound by the unrecorded 2003 Judgment, but only by what it actually knew or by what was filed in the property records when it purchased the property at issue. As set out above, to recover on its inverse condemnation claim, API must have owned the property at issue. See Little-Tex, 39 S.W.3d at 598. Although we have concluded that the City acquired the property at issue in fee simple pursuant to the 2003 Judgment, an unrecorded conveyance of any interest in real property is void as to a creditor or subsequent purchaser who gives valuable consideration and is without actual notice of the transaction. See Tex. Prop. Code Ann. § 13.001(a) (Vernon 2004). There is evidence in the record that only the void 2004 Judgment was recorded and that API purchased the property from White subject to an easement owned by the City. There is no support in the record to establish that the conveyance to the City in fee simple, awarded pursuant to the 2003 Judgment, was recorded. Furthermore, API asserts it did not have actual knowledge of the 2003 Judgment. Thus, fact questions remain which affect the jurisdictional issue of appellants' immunity claim. See Miranda, 133 S.W.3d at 228. Because a trial court cannot grant the plea to the jurisdiction if the evidence creates a fact question regarding the jurisdictional issue, the trial court correctly denied appellants' pleas to the jurisdiction. Id. at 227-28. Accordingly, we overrule appellants' sole issue. V. Conclusion We affirm the trial court's denial of appellants' plea to the jurisdiction. NELDA V. RODRIGUEZ Justice Memorandum Opinion delivered and filed this 10th day of January, 2008. 1. At the time the City filed its petition, the property was owned by H. B. White a/k/a Herschell B. White. API purchased the property from White at a later date and, thus, was not a party in the City's condemnation proceeding. 2. API asserts appellants may not now argue that the 2004 Judgment is void because appellants have either waived the argument or are estopped from making it. We disagree. Jurisdiction cannot be conferred by estoppel or by waiver. Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686, 689-90 (Tex. 1996); see Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986) ("Generally, a trial court lacks jurisdiction to make substantive rulings outside its plenary power."); Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.--Houston [14th Dist] 2006, no pet.) (expressing that once the trial court's plenary power expires it no longer has jurisdiction and its orders are void). 3. We note the City also argues it is not a proper party to this suit because it neither constructed the drainage ditch, nor removed the dirt from the ditch. However, the City does not provide authority for its contention, therefore we do not address this issue as it is inadequately briefed. See Tex. R. App. P. 38.1(h).