State v. Titan Land Development Inc. and Bauer-Hockley 550, L.P. ( 2015 )


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  •                                                                                       ACCEPTED
    01-14-00899-cv
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    3/9/2015 3:56:45 PM
    CHRISTOPHER PRINE
    CLERK
    ____________________________________
    NO. 01-14-00899-CV
    ____________________________________    FILED IN
    1st COURT OF APPEALS
    IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
    FIRST JUDICIAL DISTRICT OF TEXAS 3/9/2015 3:56:45 PM
    CHRISTOPHER A. PRINE
    AT HOUSTON                     Clerk
    ____________________________________
    THE STATE OF TEXAS,
    APPELLANT
    VS.
    TITAN LAND DEVELOPMENT, INC.
    AND BAUER-HOCKLEY 550, LP,
    APPELLEES.
    ____________________________________
    On Interlocutory Appeal from the
    County Civil Court at Law No. 4, Texas
    Cause No. 1042641
    (Judge Roberta Lloyd, Presiding)
    ____________________________________
    INITIAL BRIEF OF APPELLEES
    ____________________________________
    MCFARLAND PLLC
    Charles B. McFarland
    State Bar No. 00794269
    712 Main Street, Suite 1500
    Houston, Texas 77002-3207
    Tel 713. 325. 9701
    Fax 844. 270. 5032
    cmcfarland@mcfarlandpllc.com
    ATTORNEYS FOR APPELLEES,
    Titan Land Development, Inc. and
    Bauer-Hockley 550, LP
    March 9, 2015                           ORAL ARGUMENT REQUESTED
    TABLE OF CONTENTS
    TABLE OF CONTENTS .............................................................................................i
    INDEX OF AUTHORITIES........................................................................................ii
    REQUEST FOR ORAL ARGUMENT ....................................................................... iv
    RECORD REFERENCES ...........................................................................................iv
    STATEMENT OF THE CASE ....................................................................................v
    ISSUES PRESENTED.................................................................................................vi
    STATEMENT OF FACTS ..........................................................................................1
    SUMMARY OF ARGUMENT ...................................................................................2
    ARGUMENT ...............................................................................................................3
    I.       THE TRIAL COURT DID NOT ERR IN DETERMINING THAT THE STATE
    COULD NOT ENLARGE THE PERIOD FOR FILING OBJECTIONS BY
    DELAYING FILING THE AWARD ITH THE COURT. ............................................... 3
    A.       Section 21.048 Of The Texas Property Code Is Mandatory And
    Required The Award To Be Filed Within A Day Of The
    Decision. ..................................................................................................3
    B.       The Trial Court Lacked Jurisdiction To Compel The Filing Of
    The Award. ..............................................................................................3
    C.       The Statutory Framework Does Not Require Section 21.018 Of
    The Texas Property Code To Trump Section 21.048. ............................ 6
    D.       The Deadline For Filing Objections To The Award Was Not
    Tolled.......................................................................................................8
    PRAYER ......................................................................................................................10
    CERTIFICATE OF SERVICE ....................................................................................11
    CERTIFICATE OF COMPLIANCE ........................................................................... 12
    i
    INDEX OF AUTHORITIES
    Page(s)
    Cases
    Amason v. Natural Gas Pipeline Co.
    
    682 S.W.2d 240
    (Tex. 1985) ...........................................................................5
    Bailey v. Gardner
    
    154 S.W.3d 917
    (Tex. App.—Dallas 2005, no pet.) .....................................10
    Bilinsco Inc. v. Harris Cnty. Appraisal Dist.
    
    321 S.W.3d 648
    (Tex. App.—Houston [1st Dist.] 2010, no pet.).................10
    Blasingame v. Krueger
    
    800 S.W.2d 391
    (Tex. App.—Houston [14th Dist.] 1990, no writ)............4, 6
    City of Carrollton v. OHBA Corp.
    
    809 S.W.2d 587
    (Tex. App.—Dallas 1991, no writ).......................................5
    Coastal Indust. Water Auth. v. Celanese Corp. of Am.
    
    592 S.W.2d 597
    (Tex. 1979) ...........................................................................7
    Dickey v. City of Houston
    
    501 S.W.2d 293
    (Tex. 1973) ...........................................................................5
    Gulf Energy Pipeline Co. v. Garcia
    
    884 S.W.2d 821
    (Tex. App.—San Antonio 1994, orig. proceeding) ..........6, 7
    Hand v. Stevens Transp., Inc. Employee Benefit Plan
    
    83 S.W.3d 286
    (Tex. App.—Dallas 2002, no pet.) .......................................10
    In re State
    
    325 S.W.3d 848
    (Tex. App.—Austin 2010, no pet.).......................................7
    Irwin v. Dep’t of Veterans Affairs
    
    498 U.S. 89
    , 
    111 S. Ct. 453
    , 
    112 L. Ed. 2d 435
    (1990) .................................10
    ii
    John v. State
    
    826 S.W.2d 138
    (Tex. 1992) ........................................................ 4, 7, 8, 9, 10
    Lehman v. United States
    
    154 F.3d 1010
    (9th Cir.1998) ........................................................................10
    Oncor Elec. Delivery Co. LLC v. Schunke
    No. 04-13-00067-CV, 
    2013 WL 6672494
         (Tex. App.—San Antonio 2013, pet. dism’d) .................................................9
    Pearson v. State
    
    159 Tex. 66
    , 
    315 S.W.2d 935
    (1958) ..............................................................4
    Rose v. State
    
    497 S.W.2d 444
    (Tex. 1973) ...........................................................................5
    State v. Garland
    
    963 S.W.2d 95
    (Tex. App.—Austin 1998, pet. denied) ......................... 3, 4, 6
    State v. Giles
    
    368 S.W.2d 943
    (Tex. 1963) ...........................................................................5
    State v. Jackson
    
    388 S.W.2d 924
    (Tex. 1965) ...........................................................................5
    Statutes
    TEX. GOV'T CODE §311.014 ...................................................................................v, 2
    TEX. PROP. CODE §21.003 ..........................................................................................5
    TEX. PROP. CODE §21.018 ..................................................................... v, 2, 4, 6, 7, 8
    TEX. PROP. CODE §21.048 ......................................................... v, 1, 2, 3, 4, 6, 7, 8, 9
    TEX. PROP. CODE §21.049 ............................................................................. 6, 7, 8, 9
    TEX. PROP. CODE §21.061 ..........................................................................................2
    Rules
    TEX. R. APP. P. 9.4(i)................................................................................................12
    iii
    REQUEST FOR ORAL ARGUMENT
    Appellees, Titan Land Development, Inc. and Bauer-Hockley 550, LP,
    respectfully request the opportunity to present oral argument in connection with
    this appeal.
    RECORD REFERENCES
    In this Brief, the following record citation forms will be used:
    Clerk’s Record (276 pages)              CR [page]
    iv
    STATEMENT OF THE CASE
    Nature of Case:   Appellant, the State of Texas (the “State”), filed a statutory
    condemnation against Appellees, Titan Land Development, Inc.
    and Bauer-Hockley 550, LP (the “Landowners”), for the
    acquisition of 85.02 acres of land for the State’s Grand Parkway
    (State Highway 99) project in Harris County, Texas. CR 5-29.
    Course of         The hearing before special commissioners took place on May 1,
    Proceedings:      2014. On May 1, 2014, the special commissioners made a
    written statement of their decision stating the damages (the
    “award”) pursuant to Section 21.048 of the Texas Property Code
    and provided the award to the State’s attorney to be filed with
    the trial court. The State delayed until May 7, 2014 before filing
    the award with the trial court. CR 42, 43. The State was required
    to file its objections on or before Tuesday, May 27, 2014
    pursuant to Section 21.018(a) of the Texas Property Code and
    Section 311.014(b) of the Texas Government Code. The State
    delayed until May 30, 2014 to file objections to the award. CR
    83. The Landowners filed a motion for entry of judgment in the
    absence of timely-filed objections. CR 98.
    Trial Court’s     On August 1, 2014, the trial court granted the Landowners’
    Disposition:      motion for entry of judgment and entered judgment in the
    absence of objections. The State filed a motion for new trial,
    which was denied. CR 188, 258. The State filed notice of this
    appeal on October 30, 2014. CR 260.
    v
    ISSUES PRESENTED
    Whether the trial court properly concluded that the State could not
    unilaterally extend its deadline for appealing the administrative award by delaying
    to file the award in the trial court for seven days, when the special commissioners
    entrusted the award to the State to be timely filed and when the Texas Property
    Code required the award to be filed “on the day the decision is made or on the next
    working day after the day the decision is made.”
    vi
    STATEMENT OF FACTS
    This is a statutory condemnation case governed by the Texas Property Code.
    The State filed its condemnation petition on January 10, 2014 to acquire 85.02
    acres of land owned by the Landowners for the extension of State Highway 99 (the
    Grand Parkway) in northwest Harris County, Texas. CR 5, 9. The administrative
    hearing before special commissioners took place on May 1, 2014. CR 33. On that
    same day, the special commissioners made a written statement of their decision
    stating the damages pursuant to Section 21.048 of the Texas Property Code. CR
    43, 46. The special commissioners provided this written statement to the State’s
    attorney to be filed with the court. CR 151.
    Section 21.048 of the Texas Property Code required the award to be filed on
    or before May 2, 2014. TEX. PROP. CODE §21.048 (“After the special
    commissioners in an eminent domain proceeding have assessed the damages, they
    shall . . . make a written statement of their decision stating the damages, date it,
    sign it, and file it and all other papers connected with the proceeding with the court
    on the day the decision is made or on the next working day after the day the
    decision is made”). In violation of the statute, the State delayed six days, until May
    7, 2014, before filing the award with the court. CR 42, 43.
    The Monday following twenty days from May 2, 2014, was May 26, 2014.
    Because May 26, 2014 was a legal holiday (Memorial Day), the State was required
    to file its objections on or before Tuesday, May 27, 2014, pursuant to Section
    21.018(a) of the Texas Property Code and Section 311.014(b) of the Texas
    Government Code. The State did not file objections to the Special Commissioners
    Award until May 30, 2014. CR 83. This was not timely.
    In the absence of timely-filed objections to the award, the Landowners
    moved for entry of judgment requesting the trial court to adopt the commissioners’
    findings as the judgment of the court pursuant to Section 21.061 of the Texas
    Property Code. CR 98. On August 1, 2014, the trial court granted the Landowners’
    motion for entry of judgment and entered judgment in the absence of objections.
    CR 155, 157-59.
    The State filed a motion for a new trial, for reconsideration of its order
    granting the Landowners’ motion for entry of judgment, and for vacation of the
    trial court’s judgment. CR 188-96. The State’s motion was heard on October 8,
    2014. CR 256. The trial court denied the motion on October 22, 2014. CR 258.
    This appeal followed. CR 260.
    SUMMARY OF ARGUMENT
    The State cannot take advantage of its own delay in filing the award beyond
    what was permitted by Section 21.048 of the Texas Property Code to enlarge the
    statutory period within which its objections must be filed.
    2
    ARGUMENT
    I.    THE TRIAL COURT DID NOT ERR IN DETERMINING THAT THE STATE
    COULD NOT ENLARGE THE PERIOD FOR FILING OBJECTIONS BY
    DELAYING FILING THE AWARD ITH THE COURT.
    A.     Section 21.048 Of The Texas Property Code Is Mandatory And
    Required The Award To Be Filed Within A Day Of The Decision.
    The language of Section 21.048 of the Texas Property Code is mandatory:
    the Special Commissioners “shall” file their decision with the court “on the day the
    decision is made or on the next working day after the day the decision is made.”
    TEX. PROP. CODE §21.048. The Special Commissioners complied with this
    statutory obligation by entrusting the decision to the State for timely filing.
    B.     The Trial Court Lacked Jurisdiction To Compel The Filing Of
    The Award.
    The State contends that its own delay in filing the award with the trial court
    enlarged the period within which its objection to the award could be filed from
    May 27, 2014 to June 2, 2014. relying on an Austin court of appeals decision, State
    v. Garland, 
    963 S.W.2d 95
    (Tex. App.—Austin 1998, pet. denied). Although
    Garland is directly on point and completely supports the State’s position, its
    holding is not supported by well-established principles of Texas eminent domain
    law, and this Court should decline to adopt it.
    As in this case, the award in State v. Garland was not timely filed after being
    entrusted to the attorney for the condemning authority. 
    Garland, 963 S.W.2d at 97
    .
    The Austin court of appeals rejected what it characterized as a “merging of the
    3
    timetables of sections 21.018 and 21.048” and held that the landowners’ remedy
    was to take on an extra-statutory obligation of making sure the condemning
    authority (or the Special Commissioners) complied with the obligations of Section
    21.048:
    If any party does not receive such notice within a short period,
    he is alerted to check on the filing of the decision and, if
    necessary, ask the trial court to use its powers—be they termed
    “judicial” or “administrative”—to compel the filing of the
    decision.
    
    Id. at 101.
    This holding implies, without any basis in the statute, that the trial court
    has the ability to compel the filing of the award. 
    Id. at 101,
    n. 6. Additionally, the
    Garland court made no distinction of “whether it is the condemning authority or
    the special commissioners who perform the act.” 
    Id. at 99,
    n. 5.
    With all respect due to the Austin court of appeals, this makes too many
    leaps from established condemnation law. An eminent domain proceeding is not
    within the general jurisdiction of the court; any power to act is special and depends
    upon the eminent domain statute. Pearson v. State, 
    159 Tex. 66
    , 
    315 S.W.2d 935
    ,
    937 (1958); Blasingame v. Krueger, 
    800 S.W.2d 391
    , 394 (Tex. App.—Houston
    [14th Dist.] 1990, no writ). The statute expressly gives the court administrative
    jurisdiction to appoint the commissioners, receive their opinion as to value, and
    render judgment based upon the commissioners’ award. See John v. State, 
    826 S.W.2d 138
    , 141 n. 5 (Tex. 1992); Amason v. Natural Gas Pipeline Co., 682
    
    4 S.W.2d 240
    , 241–42 (Tex. 1985). The parties may invoke the trial court’s
    jurisdiction by timely objecting to the commissioners’ findings. State v. Jackson,
    
    388 S.W.2d 924
    , 925 (Tex. 1965). In that event, the proceeding becomes a civil
    case, and the court has jurisdiction to determine all issues in the suit. City of
    Carrollton v. OHBA Corp., 
    809 S.W.2d 587
    , 588–89 (Tex. App.—Dallas 1991, no
    writ); see TEX. PROP. CODE §21.003.
    Without a timely-filed objection, however, an eminent domain proceeding
    never becomes a civil case. Dickey v. City of Houston, 
    501 S.W.2d 293
    , 294 (Tex.
    1973) (affirming rulings that the trial court had no jurisdiction). As the Texas
    Supreme Court has explained:
    The nature of this action is of controlling significance. A
    judgment which a county court renders upon the basis of an
    award to which there have been no objections is the judgment
    of a special tribunal. Such a judgment is ministerial in nature
    and is the judgment of an administrative agency. It is not a
    judgment from which an appeal will lie. It is not a judgment in
    a civil suit, because the proceedings did not reach the stage of
    “a case in court.”
    Rose v. State, 
    497 S.W.2d 444
    , 445 (Tex. 1973). Thus, the portion of the
    condemnation proceeding before the commissioners is an administrative
    proceeding completely separate from any judicial proceeding that may later take
    place. See State v. Giles, 
    368 S.W.2d 943
    , 945 (Tex. 1963). The Texas Property
    Code “says nothing about giving the trial court power to oversee the exercise of the
    commissioners’ powers during the administrative proceeding.” Gulf Energy
    5
    Pipeline Co. v. Garcia, 
    884 S.W.2d 821
    , 823 (Tex. App.—San Antonio 1994, orig.
    proceeding); 
    Blasingame, 800 S.W.2d at 394
    (“[I]n the absence of timely filed
    objections, the [trial] court has no jurisdiction to do anything more than accept and
    adopt the award of the special commissioners as its judgment.”).
    The basis of the Austin court of appeals’s rejection in Garland of a merger
    of the timetables of sections 21.048 and 21.018 of the Texas Property Code was
    that “safeguards and remedies exist to prevent or rectify any delay in the filing of
    the commissioners’ decision.” 
    Garland, 963 S.W.2d at 101
    . Under established
    condemnation law, such “safeguards and remedies” do not exist. During the
    administrative phase, the trial court simply lacks jurisdiction to compel the filing of
    the award. For this reason, the rule propounded by Garland should be rejected.
    There is simply no reason to allow the State to manipulate its own deadline for
    filing objections to the award.
    C.     The Statutory Framework Does Not Require Section 21.018 Of
    The Texas Property Code To Trump Section 21.048.
    Under Section 21.018, the filing deadline is tied to the day the
    commissioners file their findings with the court. TEX. PROP. CODE §21.018. Under
    Section 21.049, the clerk of the court is required to send out notice of the decision
    to all parties on the day the decision is filed or the next working day after the day
    the decision is filed. TEX. PROP. CODE §21.049. Unlike the State, the clerk of the
    court has no way of knowing when the commissioners’ decision was made and,
    6
    therefore, when it was required to be filed with the court. Under the State’s
    argument, once entrusted with the filing of the award it could manipulate the time
    period within which its own objections could be filed by delaying in filing the
    award with the court, despite the mandatory obligation of Section 21.048 of the
    Texas Property Code, and relying on the clerk of the court’s issuance of notice of
    the decision pursuant to Section 21.049 in ignorance of the facts surrounding the
    timing of the decision and filing. 1 TEX. PROP. CODE §§21.048, 21.049.
    Texas condemnation law and the statutory framework do not permit this
    result. In a condemnation action, the landowner is given a single opportunity to
    recover damages for the taking of his property by the state for the public benefit.
    
    John, 826 S.W.2d at 140
    (citing Coastal Indust. Water Auth. v. Celanese Corp. of
    Am., 
    592 S.W.2d 597
    , 599 (Tex. 1979)). “As a result, the procedures set forth in
    the condemnation statute must be strictly followed and its protections liberally
    construed for the benefit of the landowner.” 
    Id. Furthermore, the
    Texas Property
    Code implements a legislative policy designed to avoid the delays that occur in
    court proceedings. Gulf Energy Pipeline 
    Co., 884 S.W.2d at 824
    ; In re State, 
    325 S.W.3d 848
    , 850 (Tex. App.—Austin 2010, no pet.) (The administrative phase is
    1
    The State argues that the clerk was enforcing Section 21.018 as written when it informed the
    parties that objections were due on the first Monday following 20 days from May 7, 2014. App. Br. at 12
    n. 4. The truth is the clerk was simply carrying forward the State’s unauthorized delay in filing the
    decision.
    7
    designed to provide “a means to quickly award damages . . . without the delays that
    occur in court proceedings.”).
    The special commissioners were required to file their decision with the
    court. Instead, they gave it to the State. The State accepted the decision from the
    special commissioners and, therefore, the obligation of Section 21.048 to file it
    with the court that day or the following day. The language of Section 21.048 is
    mandatory, and a liberal construction of Section 21.048 for the benefit of the
    landowner does not permit a mechanical operation of Section 21.018 to trump the
    mandatory requirement of Section 21.048. Once the State accepted the special
    commissioners’ decision, it could not enlarge its time to file objections by delaying
    to file it.
    D.    The Deadline For Filing Objections To The Award Was Not
    Tolled.
    The State’s finally argues that its objections must be found timely under the
    equitable tolling doctrine announced in John v. State, relying on the clerk’s alleged
    one-day delay (from May 8, 2014 to May 9, 2014) in sending the notice required
    by Section 21.049 of the Texas Property Code. App. Br. at 14.
    In John, the special commissioners’ decision was filed on April 2, 
    1990. 826 S.W.2d at 139
    . Objections to the award were due on the Monday following the
    twentieth day the decision was filed, or April 23, 1990. 
    Id. The clerk,
    however, did
    not send notice of the award’s filing until April 25, 1990. 
    Id. Without a
    tolling of
    8
    the deadline to file objections, the landowner could not have complied with the
    statutory deadline.
    In the case at bar, the clerk failed to notify the Johns that the
    special commissioners’ award had been filed with the court
    until after the deadline to object had passed. As a result, the
    Johns’ time to object to the special commissioners’ award is
    tolled until the clerk sends the required notice pursuant to
    section 21.049 of the Texas Property Code.
    
    Id. at 141.
    The case of Oncor Elec. Delivery Co. LLC v. Schunke, No. 04-13-00067-
    CV, 
    2013 WL 6672494
    , at *1 (Tex. App.—San Antonio 2013, pet. dism’d), is
    similarly inapposite. In that case, the clerk failed to send the notice to the
    condemning authority at all. The issue in this case was not the clerk’s failure to
    comply with Section 21.049 of the Texas Property Code but the State’s failure to
    comply with Section 21.048. Neither John nor Schunke address this issue, and
    these cases do not support the State’s argument that its deadline to file objections
    should be tolled because of its own delay in filing the decision with the clerk.
    The circumstances that warranted an extension of the doctrine of equitable
    tolling of the filing deadline for objections in John are not present in this case.
    Most significantly, the clerk’s one-day delay in sending out the notice would not
    have changed the filing deadline. If the State had timely filed the commissioners’
    decision (on May 1, 2014 or May 2, 2014), and the clerk had delayed in mailing
    notice of the filing by one day, the deadline for filing objections would still have
    9
    been May 27, 2014. The only way the tolling of John could change the result in
    this case is if the deadline was tolled not only for the clerk’s delay in mailing the
    notice but also for the State’s delay in filing the decision. Well-established
    principles of equitable tolling do not allow the doctrine to go so far.
    The tolling in John is an extension of the doctrine of equitable tolling, which
    applies “where a claimant actively pursued his judicial remedies but filed a
    defective pleading during the statutory period, or where a complainant was induced
    or tricked by his adversary’s misconduct into allowing filing deadlines to pass.”
    Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 
    321 S.W.3d 648
    , 654 (Tex. App.—
    Houston [1st Dist.] 2010, no pet.) (quoting Bailey v. Gardner, 
    154 S.W.3d 917
    ,
    920 (Tex. App.—Dallas 2005, no pet.)). Equitable tolling is a “sparingly” invoked
    doctrine. Irwin v. Dep’t of Veterans Affairs, 
    498 U.S. 89
    , 96, 
    111 S. Ct. 453
    , 112 L.
    Ed.2d 435 (1990). It focuses primarily on an “excusable ignorance of the
    limitations period.” Lehman v. United States, 
    154 F.3d 1010
    , 1016 (9th Cir.1998).
    The State cannot rely on equitable tolling to avoid the consequences of own
    conduct. Id.; Hand v. Stevens Transp., Inc. Employee Benefit Plan, 
    83 S.W.3d 286
    ,
    293 (Tex. App.—Dallas 2002, no pet.).
    PRAYER
    For these reasons, Appellees, Titan Land Development, Inc. and Bauer-
    Hockley 550, LP, request that this Court affirm the trial court’s judgment, that all
    10
    costs of this appeal be taxed against Appellant, and for such and other further relief
    to which it may show itself entitled.
    Respectfully submitted,
    MCFARLAND PLLC
    /s/ Charles B. McFarland__________
    Charles B. McFarland
    State Bar No. 00794269
    712 Main Street, Suite 1500
    Houston, Texas 77002-3207
    Tel 713.325.9701
    Fax 844.270.5032
    cmcfarland@mcfarlandpllc.com
    ATTORNEYS FOR APPELLEES,
    Titan Land Development, Inc. and
    Bauer-Hockley 550, LP
    CERTIFICATE OF SERVICE
    I hereby certify that on the 9th day of March, 2015, a true and correct copy
    of the above and foregoing was forwarded by certified mail, return receipt
    requested, to the following:
    Susan Desmarais Bonnen
    Assistant Attorney General
    P.O. Box 12548
    Austin, Texas 78711-2548
    susan.bonnen@texasattorneygeneral.gov
    Attorney for Appellant
    /s/ Charles B. McFarland__________
    Charles B. McFarland
    11
    CERTIFICATE OF COMPLIANCE
    As required by Rule 9.4(i) (3) of the Texas Rules of Appellate Procedure, I
    certify that the foregoing Brief of Appellees contains 2,590 words, excluding the
    parts of the document that are exempted by Rule 9.4(i)(1). I have relied on the
    word count of Microsoft Word 2010, the computer program used to prepare the
    document, in completing this certificate.
    /s/Charles B. McFarland___________
    Charles B. McFarland
    12