Edgar Todd Love v. Texas Express Pipeline LLC ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00176-CV
EDGAR TODD LOVE,
Appellant
v.
TEXAS EXPRESS PIPELINE LLC,
Appellee
From the 82nd District Court
Robertson County, Texas
Trial Court No. 12-09-19185-CV
MEMORANDUM OPINION
In this appeal, appellant, Edgar Todd Love, complains about a condemnation
proceeding involving rights granted to appellee, Texas Express Pipeline, LLC, for the
construction and operation of a pipeline through and across real property located in
Robertson County, Texas. In two issues, Love argues that he was not properly served
with notice of the condemnation and Special Commissioners’ meetings; therefore, the
ruling of the Special Commissioners and the subsequent judgment entered by the trial
court are void. Appellee responded by filing, among other things, a motion to dismiss.
For the reasons stated below, we grant appellee’s motion to dismiss.
I. BACKGROUND
It is undisputed that appellee is the owner of a common-carrier pipeline that,
once fully constructed, will transport natural-gas liquids from the Texas Panhandle to
the Gulf Coast. The parties also do not dispute that appellee, as a common carrier, has
the right and power of eminent domain and may enter on and condemn the land,
rights-of-way, easements, and property of any person or corporation necessary for the
construction, maintenance, or operation of the common-carrier pipeline. See TEX. NAT.
RES. CODE ANN. §§ 111.002, 111.019 (West 2011); see also TEX. BUS. ORGS. CODE ANN. §
2.105 (West 2012). This appeal pertains to an eminent-domain action in which appellee
obtained a permanent right-of-way easement and a temporary-construction easement
across a certain tract of land in Robertson County for the construction of the pipeline.
Appellant asserts that, on or about April 2012, appellee contacted him to discuss
and negotiate terms, conditions, and compensation regarding the condemnation
easement over the property in question. At some point in time, appellee conducted a
title search and attempted to contact the owners of the property in question in an effort
to acquire the easements by agreement. Sophie Creech, a Land Project Manager for
appellee, executed an affidavit, wherein she stated that, through its title search, appellee
determined that the property was owned by Milton Hammond, who is deceased.
Creech further explained: “TEP’s agents conducted a thorough search of the public
records, including probate and title records, and visited the Property and surrounding
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neighborhood in an attempt to identify and locate the heirs, assigns, and legal
representatives of Milton Hammond. Those searches were unsuccessful.” Creech
further noted that Love, who asserts that he is Hammond’s grandson, “claimed to own
an interest in the Property.” However, Love was unable to produce any documentation
substantiating his ownership claim to the property in question. Indeed, on appeal, Love
does not direct us to any evidence in the record that he is Hammond’s grandson, thus
evidencing his ownership interest in the property.
Having found no living person who could prove his or her ownership of the
property, appellee filed its original petition in condemnation on September 20, 2012.
Appellee’s original petition listed “The Unknown Heirs, Assigns, and Legal
Representative of Milton Hammond, Deceased” as defendants. Pursuant to section
21.014(a) of the Texas Property Code, the trial court appointed “three disinterested real
property owners who reside in the county as special commissioners to assess the
damages of the owner of the property being condemned.” TEX. PROP. CODE ANN. §
21.014(a) (West Supp. 2013).
Subsequently, on October 18, 2012, appellee filed a “Motion to Appoint Attorney
Ad Litem,” wherein appellee explained that it was unable to identify the current
owners of the property and requested that an attorney ad litem be appointed to
represent the interests of the unknown owners. Later that day, the trial court appointed
Hoagie Karels to serve as attorney ad litem. Thereafter, pursuant to section 21.016(d)(3)
of the Texas Property Code, appellee served the unknown owners of the property with
citation and notice of the Special Commissioners’ hearing via publication in the local
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newspaper—the Robertson County News. Id. § 21.016(d)(3) (West Supp. 2013). The
record reflects that the notice was published in the October 17, 2012, October 24, 2012,
October 31, 2012, and November 7, 2012 editions of the Robertson County News.
The Special Commissioners’ hearing was scheduled for November 29, 2012 at
9:00 a.m. As noted in the “Award of Special Commissioners,” Karels appeared and
participated in the hearing on behalf of the unknown owners. At the conclusion of the
hearing, the Special Commissioners awarded $4,300 in damages to the unknown
owners. The award was filed with the trial court, and appellee took necessary steps to
perfect possession of the easements by depositing $4,300 in the court’s registry and
filing the requisite bonds. See id. § 21.021 (West 2004). Accordingly, on December 12,
2012, the trial court entered an order granting statutory possession of the easement
interests to appellee.
On February 27, 2013, the trial court entered a “Judgment of Court in Absence of
Objections to Award of Special Commissioners.” In this judgment, the trial court
confirmed the award of the Special Commissioners and granted ownership of the
easements to appellee. The trial court also noted that “[a]ll parties to this suit were
given proper notice of the Commissioners Hearing and Condemnor filed the Returns of
Service with the Court’s Clerk” and authorized the clerk of the court to allow any
condemnee to come forward and, upon the filing of a motion showing specific
ownership interest in the property, withdraw his or her portion of the award.
Thereafter, appellee filed the judgment in the Robertson County public records.
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On March 28, 2013, more than a month after entry of the final judgment, Love
filed an objection to the award of the Special Commissioners, a motion to vacate or set
aside the final judgment, a motion for new trial, and a request for a temporary
injunction. On April 24, 2013, the trial court conducted a hearing on Love’s objection
and motions. At the conclusion of the hearing, the trial court denied Love’s application
for a temporary-restraining order, stating that the application was untimely and that the
court did not have jurisdiction to issue temporary-injunctive relief.
On May 14, 2013, Love requested a hearing on his remaining motions, and the
trial court set those motions for a hearing to be conducted on May 23, 2013. However,
in response to objections filed by appellee, the trial court cancelled the hearing after
concluding that the remaining motions had been overruled by operation of law. Love
filed a notice of appeal stating that he desired to challenge the trial court’s “Judgment of
Court in Absence of Objections to Award of Special Commissioners” and the award of
the Special Commissioners.
II. ANALYSIS
“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.” In re
Energy Transfer Fuel, LP, 250 S.W.3d 178, 180-181 (Tex. App.—Tyler 2008, orig.
proceeding) (citing Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 822 (Tex. App.—
San Antonio 1994, orig. proceeding)). “The initial filing of the petition and the
commissioners’ hearing is an ‘administrative proceeding’ that converts into a normal
pending cause only when objections to the commissioners’ award are filed.” Id. at 181
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(citing Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 179 (Tex. 2004); In re
State, 65 S.W.3d 383, 386 (Tex. App.—Tyler 2002, orig. proceeding)). More specifically,
upon the filing of objections, the Special Commissioners’ award is vacated and the
administrative proceeding converts into a normal pending cause with the condemnor as
plaintiff for the purpose of proving its right to condemn, and the landowner as
defendant. See TEX. PROP. CODE ANN. § 21.018(b); see also Denton County v. Brammer, 361
S.W.2d 198, 200 (Tex. 1962); Musquiz v. Harris County Flood Control Dist., 31 S.W.3d 664,
667 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Any party who is dissatisfied with the Special Commissioners’ award is allowed
a certain amount of time within which to file objections. Musquiz, 31 S.W.3d at 666. In
particular, section 21.018(a) of the Texas Property Code provides that:
A party to a condemnation proceeding may object to the findings of the
special commissioners by filing a written statement of the objections and
their grounds with the court that has jurisdiction of the proceeding. The
statement must be filed on or before the first Monday following the 20th day after
the day the commissioners file their findings with the court.
TEX. PROP. CODE ANN. § 21.018(a) (West 2004) (emphasis added).
If no party in a condemnation proceeding files timely objections to the
findings of the special commissioners, the judge of the court that has
jurisdiction of the administrative proceeding shall adopt the
commissioners’ findings as the judgment of the court, record the
judgment in the minutes of the court, and issue the process necessary to
enforce the judgment.
In re Energy Transfer Fuel, LP, 250 S.W.3d at 181 (citing TEX. PROP. CODE ANN. § 21.061
(West 2000)). “The trial court’s function in this situation is ministerial in that it must
render judgment based upon the commissioners’ award.” Id. (citing John v. State, 826
Love v. Texas Express Pipeline LLC Page 6
S.W.2d 138, 141 n.5 (Tex. 1992)). “The trial court lacks jurisdiction to do otherwise.” Id.
(citing Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex. App.—Houston [14th Dist.] 1990,
orig. proceeding) (“[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.”)).
Moreover, the trial court’s rendering judgment “on the award” is not appealable.
See Musquiz, 31 S.W.3d at 667 (citing Pearson v. State, 159 Tex. 66, 315 S.W.3d 935, 938
(1958) (“[I]f no objections are filed . . . [n]o jurisdiction is conferred upon the court to do
anything more than accept and adopt the award as its judgment . . . . There is nothing
which the court . . . can hear and determine by the exercise of its judicial powers.”)); see
also Restitution Revival v. Waco Indep. Sch. Dist., No. 10-02-248-CV, 2003 Tex. App. LEXIS
8876, at **1-2 (Tex. App.—Waco Oct. 15, 2003, pet. denied). “If the landowner timely
files objections to the special commissioners’ award, the landowner must secure service
of citation on the condemnor within a reasonable period of time.” Musquiz, 31 S.W.3d
at 667 (citing TEX. PROP. CODE ANN. § 21.018(b)). “Otherwise, the trial court should
dismiss the objections for want of prosecution and reinstate the special commissioners’
award as the proper compensation.” Id. (citing Amason v. Natural Gas Pipeline Co., 682
S.W.2d 240, 242 (Tex. 1984)); see State v. Ellison, 788 S.W.2d 868, 873 (Tex. App.—
Houston [1st Dist.] 1990, writ denied) (noting that when the landowner does not secure
service on the condemnor within a reasonable period of time, the trial court should
consider the objection abandoned and dismiss the “objection” for want of prosecution).
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Here, the Special Commissioners conducted their hearing on November 29, 2012.
On the same day, the Special Commissioners entered their award and filed it with the
trial judge. Subsequently, on February 27, 2013, the trial court entered a “Judgment of
Court in Absence of Objections to Award of Special Commissioners.” However, Love
did not file his objections to the Special Commissioners’ award until March 28, 2013, or
in other words, approximately four months after the Special Commissioners filed their
award with the trial court. Because Love did not file his objections by the first Monday
following the 20th day after November 29, 2012—the day the commissioners filed their
findings with the trial court, we cannot say that Love’s objections were timely. See TEX.
PROP. CODE ANN. § 21.018(a). And because Love did not timely file his objections, the
trial court was obligated to adopt the findings of the Special Commissioners and render
judgment based upon the Special Commissioners’ award. See id. § 21.061; see also In re
Energy Transfer Fuel, LP, 250 S.W.3d at 181; Blasingame, 800 S.W.2d at 394. The trial court
lacked jurisdiction to do anything else. See also In re Energy Transfer Fuel, LP, 250 S.W.3d
at 181; Blasingame, 800 S.W.2d at 394.
Furthermore, the trial court’s rendering judgment “on the award” is not
appealable. See Pearson, 315 S.W.3d at 938; Musquiz, 31 S.W.3d at 667; see also Restitution
Revival, 2003 Tex. App. LEXIS 8876, at **1-2. Therefore, because Love attempts to
appeal from a judgment that is not appealable, we lack jurisdiction over this matter.1
1 And to the extent that Love complains that he was not personally served with notice of the
November 29, 2012 Special Commissioners’ hearing, we note that Love has not directed us to any
documentation in the record demonstrating his ownership interest in the property. The fact that appellee
began negotiations with Love does not definitively demonstrate that Love had a legally-cognizable
ownership interest in the property. Furthermore, the record reflects that, pursuant to section 21.016(d)(3)
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See Pearson, 315 S.W.3d at 938; Musquiz, 31 S.W.3d at 667; Patrick Media Group, Inc. v.
Dallas Area Rapid Transit, 879 S.W.2d 375, 377 (Tex. App.—Eastland 1994, writ denied)
(“Absent objections to the commissioners’ award by the parties to the condemnation
proceeding, we have no jurisdiction to entertain this appeal.”); Storey v. Irving, 475
S.W.2d 856 (Tex. Civ. App.—Dallas 1972, no writ) (“The order complained of was an
administrative order and not a judgment in a civil case, and there is no right of appeal
therefrom.”); see also Iroha v. Son, No. 2-05-391-CV, 2007 Tex. App. LEXIS 444, at *10
(Tex. App.—Fort Worth Jan. 25, 2007, no pet.) (“The judgment entered by the court
[confirming the award of the special commissioners] does not constitute a ‘judgment in
a civil case,’ and thus, neither the condemnor nor the condemnee has the right to appeal
from that judgment.”); Restitution Revival, 2003 Tex. App. LEXIS 8876, at **1-2.
Accordingly, we grant appellee’s motion to dismiss. This appeal is hereby dismissed
for want of jurisdiction. See TEX. R. APP. P. 42.3(a), 43.2(f).
AL SCOGGINS
Justice
of the Texas Property Code, appellee served the unknown owners of the property by publication in the
October 17, 2012, October 24, 2012, October 31, 2012, and November 7, 2012 editions of the Robertson
County News. See TEX. PROP. CODE ANN. § 21.016(d)(3) (West Supp. 2013) (authorizing service of citation
by publication if, among other things, the identity or the residence of the property owner is unknown).
Moreover, the trial court appointed Hoagie Karels as attorney ad litem to represent the interests of the
unknown owners of the property. Based on this, we are not persuaded by Love’s complaint about
personal service.
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motion granted; appeal dismissed
Opinion delivered and filed March 6, 2014
[CV06]
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