Shell Pipe Line Co. v. Wheeler

OPINION WOODARD, Justice. This is an appeal from an order of dismissal of petition in condemnation. The petition was filed on September 13, 1985, in the name of Shell Pipe Line Company. A commission hearing was had on October 11, 1985, and the commissioners awarded the condemnee $193,590.00. Condemnor objected to the award. Condemnee filed a motion to dismiss which included the grounds that Shell Pipe Line Company was a nonentity and had no capacity to condemn property. Condemnor moved to correct the name of the petitioner to Shell Pipe Line Corporation and was denied by the trial court. The cause was dismissed. We reverse and remand. Shell Pipe Line Corporation is a Maryland corporation authorized to do business in the State of Texas. The corporation had retained counsel and had unsuccessfully negotiated settlement in its proper name with the condemnee. After the commissioners made their award, the corporation deposited the $193,590.00 in its correct name. The attorney for the corporation testified the word “company” was substituted for “corporation” by oversight. It appears that Shell Pipe Line Corporation had the capacity, or legal power, of a corporation to effectuate eminent domain proceedings. It is a de jure pipeline corporation functioning under statutory empowerment. We do not believe the misnomer in the petition in this case brings any detriment or disadvantage to the condemnee. A misnomer which cannot mislead merely entitles the defendant to abate the proceeding until the misnomer can be corrected. Abilene Independent Telephone & Telegraph Co, v. Williams, 111 Tex. 102, 229 S.W. 847 (1921). It has been held that a mere defect in pleadings in a condemnation suit does not make the proceeding void, but subject to proper amendment. County of Jim Wells v. Cook, 410 S.W.2d 325 (Tex.Civ.App.—San Antonio 1966, no writ). Ex parte Edmonds, 383 S.W.2d 579 (Tex.1964). Although the condemnation proceedings are initially unique in procedure, once the objections to the commissioners’ findings are duly filed, the case is to be tried as other civil cases. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 (1960). Rule 63, Tex.R.Civ.P., provides that a party has a right to amend pleadings as long as such action does not surprise the opposite party. Cactus Drilling Corporation v. Hager, 487 S.W.2d 758 (Tex.Civ.App.—El Paso 1972, no writ). Here again, we believe the prior dealings and correspondence between the parties in the correct name of the corporation, both prior and subsequent to the filing of the petition, would abnegate surprise. We therefore reverse the trial court’s dismissal on the grounds of nonentity of the condemnor and remand it to the trial court for further proceedings not inconsistent herewith.