Couch v. State , 1985 Tex. App. LEXIS 6430 ( 1985 )

BURGESS, Justice,

dissenting.

I respectfully dissent and would re-instate the appeal. The majority perceives the correct general rule to be set out in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (Tex.1950). I agree, but would hold the exception includes the instant case. The language setting out the exception: “Where an appellant accepts only that which the appellee concedes, (emphasis added) or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery.”

In this case, the State had taken possession of Couch’s property, filed no motion for new trial, and deposited the amount of the judgment into the registry of the court. Couch filed his motion for new trial on June 26, 1984 and his motion to withdraw funds on July 18, 1984. Both of these instruments put the State on notice he was not satisfied with the jury’s award. Couch then filed his cost bond on August 29,1982, thus perfecting an appeal. The State had until September 2, 1982 to perfect their appeal, Tex.R. Civ.P. 356. This they did not do, but filed a motion to dismiss Couch’s appeal on October 17, 1984. The State’s motion was granted by this court, without oral submission or written opinion, on November 1, 1984. I would hold the actions of the State, in this case, constituted a concession that Couch was due at least the amount under the jury’s award and thus the exception set out in Carle, supra, would apply.

Were the facts not such, i.e., an exception under Carle, supra, I would reach the same result. Unlike my prior brethren in Latimer v. State, 328 S.W.2d 242 (Tex.Civ. App. — Beaumont 1959, writ ref’d n.r.e.), I believe there is an “inconsistency in holding that one may accept or appropriate the amount awarded by the commissioners, but not the amount awarded by county court judgment, without jeopardizing one’s right of appeal.” In each instance, a particular forum has decided the amount of compensation due the landholder. In each instance, the landholder may seek further relief, if dissatisfied. To hold the landholder may accept the benefits at one stage and still proceed, while he may not accept the benefits at the next stage (if he wants to proceed), particularly if the State has dispossessed the landowner, is, in my humble opinion, inconsistent. Not only is this position inconsistent, it is unreasonable and arbitrary, thus violative of the United States and Texas Constitutions.

This dissent is respectfully submitted.