Bill Miller Bar-B-Q Enterprises LTD. v. VIA Metropolitan Transit Authority ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00855-CV
BILL MILLER BAR-B-Q ENTERPRISES, LTD.,
Appellant
v.
Shirley Hale Mathis, as Temporary Guardian -Trustees of the Benavides Family Mineral
VIA METROPOLITAN TRANSIT AUTHORITY,
Appellee
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2012-ED-0006
Honorable Tom Rickhoff, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: October 22, 2014
AFFIRMED
Bill Miller Bar-B-Q Enterprises, Ltd. appeals a judgment awarding it condemnation
damages. Bill Miller contends it was deprived of proper notice of the findings made by the special
commissioners pursuant to section 21.049 of the Property Code. TEX. PROP. CODE ANN. § 21.049
(West 2000). We affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
VIA Metropolitan Transit Authority filed a condemnation suit against Bill Miller on
February 14, 2012. VIA’s original and subsequently amended pleadings were sent to opposing
04-13-00855-CV
counsel’s address of record. After two hearings were cancelled at the request of Bill Miller, both
parties agreed to a hearing date of June 26, 2013. Counsel for Bill Miller later requested via email
another continuance, but did not confirm an agreed reset date. The hearing went forward as
noticed, and the special commissioners awarded condemnation damages of $33,800 based on
VIA’s appraisal of the property. Bill Miller did not attend the hearing. The award was filed with
the trial court on June 26, 2013.
On July 2, 2013, the trial court clerk sent notices of the award to the parties at their
addresses of record by certified mail. Shortly thereafter, it was discovered that the address of
record for Bill Miller’s counsel was incorrect, and the notices were resent. Counsel for Bill Miller
acknowledged that he received notice of the award on August 12, 2013. Despite this, Bill Miller
failed to file any objections even after a hearing was held on VIA’s “Motion for Judgment in the
Absence of Objections” on September 16, 2013. 1 On October 24, 2013, a hearing was held on
VIA’s “Motion for Rehearing on the Motion for Judgment in the Absence of Objections;” all
parties attended and the trial court signed the judgment based upon the special commissioners’
award. On appeal, Bill Miller argues that the trial court clerk’s failure to send notice of the award
as required under section 21.049 deprived it of the opportunity to timely file objections as a
prerequisite to an appeal de novo before the trial court.
ANALYSIS
Bill Miller contends that because the trial court clerk failed to accomplish service to
counsel for Bill Miller at his correct address, mandatory compliance with section 21.049 was not
achieved, thus depriving Bill Miller of the opportunity to timely file its objections to the award.
1
Bill Miller does not raise or brief the issue of whether its response to VIA’s Motion for Judgment satisfies the
requirements of section 21.018; thus, we do not address it.
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See TEX. PROP. CODE ANN. § 21.049 (West 2000). However, the record reflects that the clerk
complied with the plain language of section 21.049 by sending notice to the parties’ attorneys of
record, “at their addresses of record.” Id. (emphasis added). The record further reflects that Bill
Miller had actual notice of the award as early as August 12, 2013, yet nevertheless failed to file
any objections in the weeks before judgment was signed on October 24, 2013. Section 21.018
requires a timely written statement of the objections to the award and their grounds be filed on or
before the first Monday following the 20th day after the day the special commissioners file their
findings with the court. TEX. PROP. CODE ANN. § 21.018(a) (West 2004). Objections are required
to convert the commissioners’ hearing from an “administrative proceeding” into a “normal
pending cause,” without which the trial court is deprived of jurisdiction to consider the merits of
the award. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984); Am. Tel. &
Tel. Co. v. Peurifoy, 242 S.W.2d 233, 236 (Tex. Civ. App.—Dallas 1951, no writ). Where no
objection is filed, the trial court’s jurisdiction is limited to the ministerial act of adopting the
findings of the commissioners as judgment of the court. TEX. PROP. CODE ANN. § 21.061 (West
2000); Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 179 (Tex. 2004); John v.
State, 826 S.W.2d 138, 141 n.5 (Tex. 1992). The procedures set forth in Chapter 21 must be
strictly followed. See John, 826 S.W.2d at 140.
Because Bill Miller failed to file any objections, even after receiving actual notice of the
commissioners’ findings, the trial court’s jurisdiction was limited to adopting the award of the
special commissioners. See TEX. PROP. CODE ANN. § 21.061 (West 2000). Thus, Bill Miller’s
complete failure to file objections precludes an appeal from the trial court’s judgment adopting the
special commissioners’ findings. See TEX. PROP. CODE ANN. §§ 21.018 (West 2004), 21.061
(West 2000); Love v. Tex. Express Pipeline, LLC, No. 10-13-00176-CV, 2014 WL 895507,
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at *3-4 (Tex. App.—Waco March 6, 2014, no pet.). We hold the trial court properly adopted the
findings of the special commissioners as judgment of the court, and affirm the judgment of the
trial court.
Rebeca C. Martinez, Justice
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