James B. Bonham Corp. v. the City of Corsicana

ACCEPTED
06-16-00026-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/7/2016 3:42:44 PM
DEBBIE AUTREY
CLERK
NO. 06-16-00026-CV
IN THE SIXTH COURT OF APPEALS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
JAMES B. BONHAM CORPORATION 9/7/2016 3:42:44 PM
DEBBIE AUTREY
Clerk
Appellant,
V.
CITY OF CORSICANA, TEXAS
Appellee.
APPEALED FROM THE 13TH JUDICIAL DISTRICT COURT
OF NAVARRO COUNTY, TEXAS
Trial Court Case No. 08-17240-CV
APPELLEE CITY OF CORSICANA, TEXAS’S BRIEF
Terry Jacobson
State Bar No. 10528000
JACOBSON LAW FIRM, P.C.
733 West Second Avenue
Corsicana, Texas 75110
(903) 874-7117
Fax (903) 874-7321
ATTORNEY FOR APPELLEE
CITY OF CORSICANA, TEXAS
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. SUPPLEMENTAL STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . 1
II. SUMMARY OF APPELLEE’S ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . 2
Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Procedural Standards in Land Condemnation.. . . . . . . . . . . . . . . . . . . . . . 3
No Abuse of Discretion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Trial Court properly granted summary dismissal of the Award
of Special Commissioners because Appellant failed to timely cite the
Condemnor under TEX. PROP. CODE § 21.018... . . . . . . . . . . . . . . 6
B. The Trial Court did not abuse its discretion by dismissing
Appellee’s objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. The City is not estopped from asserting untimely service for want of
prosecution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
i
INDEX OF AUTHORITIES
CASES
Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242-43 (Tex. 1984). . . 3-6
Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (Tex. 1957). . . . . . . . . . . . . 2, 3
Callahan v. Staples, 139 Tex. 8, 14, 161 S.W.2d 489, 491 (1942). . . . . . . . . . . . . 3
City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970). . . . . . . . . . . 10, 11
Clear Lake City Water Auth. v. Winograd, 695 S.W.2d 632, 640
(Tex. App.–Houston [1st Dist.] 1985, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . 11
Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . 15
Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962). . . . . . . . . . . . . 3-6
Enterprise Leasing Co. of Houston v. Harris County Toll Road Auth.,
356 S.W.3d 85, 90 (Tex. App.–Houston 1st [Dist.] 2011, no pet.). . . . . . . . . . 10, 11
Exito Electronics Co., Ltd. v. Trejo, 142 S.W.3d 302, 303 (Tex. 2004). . . . . 16, 17
Gordon v. Conroe Independent School Dist., 789 S.W.2d 395
(Tex. App.–Beaumont 1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 16
Hilburn v. Brazos Electric Power Co-Op, Inc., 683 S.W.2d 58
(Tex. App.–Eastland 1985, writ ref’d n.r.e.).. . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13
Investors Diversified Services, Inc. v. Bruner, 366 S.W.2d 810, 815
(Tex. Civ. App–Houston 1963, writ ref’d., n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . 15
Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 327
(Tex. App.–El Paso 1994, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 96
(Tex. App.– Houston [14th Dist.] 2005, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . 2
Rizk v. Mayad, 603 S.W.2d 773, 776 (Tex. 1980). . . . . . . . . . . . . . . . . . . . . . . . 2, 8
Roberts v. Haltom City, 543 S.W.2d 75, 78 (Tex. 1976). . . . . . . . . . . . . 5, 7, 10, 12
Skaggs v. City of Keller, 880 S.W.2d 264 (Tex. App.–Fort Worth 1994,
writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8, 14
Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 272 (Tex. App.–El Paso
2010, no. pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9
Texas Resources, Inc. v. Diamond Shamrock Corp., 584 S.W.2d 522
(Tex.Civ.App.–Beaumont 1979, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 12, 13
Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). . . . . . . . . . . . 2, 8
Villareal v. San Antonio Truck & Equipment, 994 S.W.2d 628, 630
(Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
STATUTES
TEX. CIV. PRAC. & REM. CODE § 17.024 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. LOC. GOV. CODE § 251.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. LOC. GOV. CODE § 251.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX. PROP. CODE ANN. § 21.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. PROP. CODE § 21.012(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
TEX. PROP. CODE § 21.018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 12
TEX. PROP. CODE § 21.018(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18
iii
TEX. PROP. CODE § 21.018(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9, 10
TEX. PROP. CODE § 21.021(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6
RULES
TEX. R. CIV. P. 165a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
TEX. R. CIV. P. 165a(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. R. CIV. P. 165a(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8
iv
I. SUPPLEMENTAL STATEMENT OF FACTS
The City of Corsicana, Texas (the “City” or “Appellee”) provides the following
supplemental facts for purposes of completeness to aid the Court in its deliberations.
The present case arises from one of multiple land condemnation cases in which the
City exercised its powers of eminent domain to construct a water transmission line
from Richland Chambers Reservoir to facilities located on and adjacent to Lake
Halbert in Navarro County, Texas. CR 4, 7-8; 271, 274-75.
On May 21, 2008, following the Special Commissioners’ hearing in the
underlying administrative condemnation proceeding, the City deposited $2,900 into
the registry of the 13th Judicial District Court of Navarro County, Texas (the “Trial
Court”) pursuant to the Award of Special Commissioners and TEX. PROP. CODE §
21.021(a)(1). CR 40. James B. Bonham Corporation (“Bonham” or “Appellant”), in
both the Statement of the Case and Statement of Facts in Appellant’s Brief, asserts
that it timely filed Objections to the Special Commissioners’ award. Although
Appellant asserts that it concurrently transmitted a copy of its objections to Plaintiff’s
counsel on or about June 12, 2008, citation was never issued or served on the City
until January 8, 2016. CR 42-44, 223-24. 250; RR 4-5.
1
II. SUMMARY OF APPELLEE’S ARGUMENT
Standard of Review
A trial court’s order dismissing the case for want of prosecution is reviewed
under a clear abuse of discretion standard. Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d
266, 272 (Tex. App.–El Paso 2010, no. pet.). “The trial court’s authority to dismiss
for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of
Civil Procedure, and (2) the court’s inherent power.” Villareal v. San Antonio Truck
& Equipment, 994 S.W.2d 628, 630 (Tex. 1999); Veterans’ Land Bd. v. Williams, 543
S.W.2d 89, 90 (Tex. 1976); Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (Tex.
1957). “A trial court may dismiss under Rule 165a when a case is ‘not disposed of
within the time standards promulgated by the Supreme Court ...’” TEX. R. CIV. P.
165a(2). Id.; see also Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d
89, 96 (Tex. App.– Houston [14th Dist.] 2005, pet. denied).
Accordingly, the trial court has the inherent power to dismiss a case
independent of the rules of procedure when the case is not prosecuted with due
diligence. Villareal, 994 S.W.2d at 630; see Rizk v. Mayad, 603 S.W.2d 773, 776
(Tex. 1980); Williams, 543 S.W.2d at 90. The trial court’s decision should then be
reviewed to determine whether the responsible litigant (i.e., Bonham) demonstrated
good cause for not prosecuting the case with greater diligence. Olivas, 323 S.W.3d
2
at 272 (Tex. App.–El Paso 2010, no pet.) citing Callahan v. Staples, 139 Tex. 8, 14,
161 S.W.2d 489, 491 (1942). If not sufficiently explained, a delay of an unreasonable
duration raises a conclusive presumption of abandonment. Amason v. Natural Gas
Pipeline Co., 682 S.W.2d 240, 242-43 (Tex. 1984); Denton County v. Brammer, 361
S.W.2d 198, 200 (Tex. 1962); Callahan, 161 S.W.2d at 491. Moreover, an intent to
abandon is not part of the test in deciding a motion to dismiss for want of prosecution.
Texas Resources, Inc. v. Diamond Shamrock Corp., 584 S.W.2d 522, 524
(Tex.Civ.App.–Beaumont 1979, no writ). “The sole test is whether the case was
prosecuted with due diligence.” Id. citing Bevil v. Johnson, 157 Tex. 621, 307
S.W.2d 85(Tex. 1957); Callahan 161 S.W.2d at 491 (1942).
Procedural Standards in Land Condemnation
Land condemnation is a two-part procedure involving an initial administrative
proceeding and then, if necessary, a judicial proceeding. Amason v. Natural Gas
Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984). When a condemnor desires land for
public use, but cannot agree on terms with the landowner, the condemnor must file
a statement seeking condemnation in either the district court or county court at law
of the county in which the land is located. Id. citing TEX. PROP. CODE ANN.
§§21.001; 21.012; 21.013 (Vernon 1984). The City fulfilled this requirement when
it filed Plaintiff’s Original Statement in Condemnation on April 28, 2008. CR 3-24.
3
“If the condemnee is dissatisfied with the Special Commissioners’ award, he
must timely file his objections in the appropriate court.” Id. citing TEX. PROP. CODE
§ 21.018(a) (i.e., no later than the first Monday following the 20th day after the
Special Commissioner’s award has been filed). Once the objections are filed, the
Special Commissioners’ award is vacated, converting the administrative proceeding
into a normal court action. Id. citing Denton County, 361 S.W.2d at 200; TEX. PROP.
CODE § 21.018(b).
Although the City is the plaintiff for the purpose of proving its right to
condemn, the objecting party – Bonham – was still required to secure service of
citation on the City. Id. at 242, citing Denton County at 200; TEX. PROP. CODE §
21.018(b). Bonham’s failure to serve citation on the City within a reasonable period
of time (i.e., over seven and a half years), raised a conclusive presumption that
Appellant abandoned its objections. See Amason, 682 S.W.2d at 242-243 citing
Denton County at 199-200. Because Bonham never secured service of citation upon
the City, the burden of going forward with the case and the consequences of
abandoning it remained with the Appellant. See Skaggs v. City of Keller, 880 S.W.2d
264, 266 (Tex. App.–Fort Worth 1994, writ denied) citing Amason at 243; Gordon
v. Conroe Independent School Dist., 789 S.W.2d 395 (Tex. App.–Beaumont 1990, no
writ); Denton County, at 201.
4
No Abuse of Discretion
There is no genuine issue of material fact as to the City’s right-to-take in the
condemnation proceeding. CR 2281, 249-53; RR 8, l. 12-15, p. 9, l. 20-p. 10, l. 10.
The City properly initiated the administrative phase of this condemnation action by
filing a petition in compliance with Chapter 21 of the Texas Property Code. See TEX.
PROP. CODE §21.012(b). The City’s Original Statement in Condemnation contains
all the requirements set forth in §21.012(b).
The Trial Court properly exercised its discretion in dismissing Bonham’s
objections for want of prosecution and reinstating the Special Commissioners’ award
on March 8, 2016. See Amason at 242, citing Denton County, 361 S.W.2d at 200-01.
Nevertheless, Appellant alleges the City is estopped from moving to dismiss the case
because the City allegedly led Bonham to believe that it had waived citation under
TEX. PROP. CODE § 21.018. In order for the defense of estoppel to apply to a
municipality, a statement or some authorized conduct of the City’s officials must have
led Bonham to believe the City waived citation. See Roberts v. Haltom City, 543
S.W.2d 75, 78 (Tex. 1976). No evidence exists in the record that the citation
requirement was ever waived by an authorized individual, or that the City led
1
Bonham, without the services of an attorney, filed its own verified Answer admitting the
City’s right to take. CR 227-29.
5
Bonham to believe it was waived.
The City therefore respectfully asks this Court to affirm the Judgment of the
Trial Court. CR 249-53.
III. ARGUMENT
A. The Trial Court properly granted summary dismissal of the Award of
Special Commissioners because Appellant failed to timely cite the
Condemnor under TEX. PROP. CODE § 21.018.
From the time the City filed its Original Statement in Condemnation through
the time of the Special Commissioners’ award, the condemnation proceedings were
administrative in nature. See Amason v. Natural Gas Pipeline Co., 682 S.W.2d at
242 (additional citations omitted). After the hearing, the City deposited the award in
the Trial Court’s registry pursuant to TEX. PROP. CODE §21.021(a)(1). CR 249.
Bohnam filed his objections but failed to have citation issued or served. CR 250.
The City, as condemnor, became the plaintiff for the purpose of proving its
right to condemn, but Bonham was still required to obtain service of citation on the
City. See Amason at 243. When the condemnee fails to serve citation on the
condemnor within a reasonable period of time, the trial court should dismiss the
objections for want of prosecution and reinstate the Special Commissioners’ award.
Id. at 242, citing Denton County at 200-01.
6
Appellee is a Texas home rule municipality with the power and right of
eminent domain, as provided by Sections 251.001 and 251.002 of the Texas Local
Government Code, and other applicable statutes. And, the law is clear about how to
serve a city. “In a suit against an incorporated city, town, or village, citation may be
served on the mayor, clerk, secretary, or treasurer.” TEX. CIV. PRAC. & REM. CODE
§ 17.024 (b); Skaggs v. City of Keller, 880 S.W.2d at 266. Although the statute uses
the term “may,” this statute has been nonetheless interpreted as identifying the only
persons who can accept service on behalf of a city. Id. Service upon any other
person is defective. Id.
In the present case, the City had no knowledge that Appellant had filed
objections until the City’s attorney was served with the objections on January 8, 2016,
over seven and a half years after the Award of Special Commissioners was filed with
the Clerk. RR 3, l. 17-23. There is evidence in the record that the City’s attorney
was mailed a copy of Appellant’s objections. CR 44. But, as noted above, the City’s
attorney never saw the objections. CR 53, RR 3, l. 17-23. But even if he had seen
it, service would still have been defective because no citation was issued and the
City’s attorney was not authorized to accept or waive citation. Cf. Roberts v. Haltom
City, 543 S.W.2d at 80. Sending the City’s attorney a copy of the objections does not
comply with the statute. Hilburn v. Brazos Electric Co-Op, Inc., 683 S.W.2d 58, 59
7
(Tex. App.–Eastland 1985, write ref’d n.r.e.). Because no one, not even the City’s
attorney, had been served with citation before January 8, 2016, the City had no duty
to pursue the case until that time. Skaggs v. City of Keller, 880 S.W.2d at 266. The
Trial Court properly granted the City’s motion.
B. The Trial Court did not abuse its discretion by dismissing Appellee’s
objections.
The Trial Court has authority to dismiss a case for want of prosecution under
both Rule 165a of the Texas Rules of Civil Procedure and its inherent power. See
TEX. R. CIV. P. 165a(1)-(2); Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex.
App.–El Paso 2010, no pet.); Villareal, 994 S.W.2d at 630 (Tex. 1999) (additional
citations omitted). Absent a good cause to maintain the case on the docket, the Trial
Court was required to dismiss the case at the dismissal hearing. TEX. R. CIV. P.
165a(1); Olivas, 323 S.W.3d at 274 (emphasis added). The Trial Court found that
Bonham failed to obtain service of citation and otherwise prosecute its case with due
diligence, so the dismissal was proper as an exercise of the Trial Court’s inherent
power. Villareal 994 S.W.2d at 630; see Rizk, 603 S.W.2d at 776; Williams, 543
S.W.2d at 90.
The factors a trial court may consider in dismissing a case under its inherent
power include:
8
1. The length of time the case was on file;
2. The extent of activity in the case;
3. Whether a trial setting was requested; and,
4. The existence of reasonable excuses for delay.
Olivas, 323 S.W.3d at 274 (additional citations omitted). As the moving party, the
City clearly met its burden in establishing a record to support its contention that the
case should be dismissed for want of prosecution. See Olivas, 323 S.W.3d at 274.
Indeed, Bonham failed to secure service of citation until January 8, 2016. CR 42-44,
223-24; RR 4-5.
Almost eight years passed between the filing of the Original Statement in
Condemnation and the hearing on the City’s Motion to Dismiss. Although Bonham
carried the burden of converting the case to a judicial proceeding and citing the City,
the only significant action in the case occurred when the City filed its December 15,
2015 Motion to Render Judgment. There is no evidence a trial setting was requested.
Moreover, Bonham offered no evidence of a reasonable excuse for delay in citing the
City under TEX. PROP. CODE § 21.018 (b). Having thus heard the City’s Motion to
Dismiss Objections for Want of Prosecution on March 7, 2016, the Trial Court was
well within its discretion to dismiss this case for want of prosecution, thereby
reinstating the Award of Special Commissioners entered almost eight years earlier.
9
C. The City is not estopped from asserting untimely service for want of
prosecution.
In Appellant’s Brief, Bonham contends that because the City engaged in
discovery after the period for filing objections had expired (i.e., June 16, 2008), the
City is estopped from asserting untimely service of citation under TEX. PROP. CODE
§ 21.018(b). Appellant argues that by engaging in discovery, the City led Bonham
to believe that it had waived citation, even inferring the City had a duty to place
Bonham on notice that Appellee would object to lack of issuance and service after
commencing discovery. See APPELLANT’S BRIEF p. 11. The City had no such
duty. And there is no evidence in the record that Bonham believed anything – much
less that the City had waived citation.
Citing Roberts v. Haltom City, Appellant asserts estoppel as an equitable
remedy “to prevent inconsistency resulting in injustice, and to protect those who have
been misled by that which appears fair.” APPELLANT’S BRIEF at p. 11. However,
“[a]ffirmative defenses based in equity have been consistently held not to apply when
the activity complained of is a governmental function.” Enterprise Leasing Co. of
Houston v. Harris County Toll Road Auth., 356 S.W.3d 85, 90 (Tex. App.–Houston
1st [Dist.] 2011, no pet.). See, e.g., City of Hutchins v. Prasifka, 450 S.W.2d 829, 835
(Tex. 1970). In Texas, the general rule has been that when a unit of government is
10
exercising its governmental powers, it is not subject to estoppel. Hutchins, 450
S.W.2d at 835. Courts have recognized a limited exception in some circumstances
when a party raises equitable estoppel. Enterprise Leasing, 356 S.W.3d at 90 citing
Hutchins, 450 S.W.2d at 836. The Texas Supreme Court noted in Hutchins that “a
municipality may be estopped in those cases where justice requires its application,
and there is no interference with the exercise of its governmental functions.” Id.
Estoppel in such instances should be “applied with caution and only in exceptional
cases where circumstances clearly demand its application to prevent a manifest
injustice.” Id.
In determining whether justice requires that a party be allowed to pursue its
claim of estoppel, the Supreme Court said courts should look at the “totality of the
circumstances” that takes into account the conduct of all the parties. Enterprise
Leasing, 356 S.W.3d at 90. Furthermore, the exception is only to be exercised when
“justice, honesty and fair dealing require it.” Id. citing Clear Lake City Water Auth.
v. Winograd, 695 S.W.2d 632, 640 (Tex. App.–Houston [1st Dist.] 1985, writ ref’d
n.r.e.). There is no evidence in the record to suggest that justice, honesty and fair
dealing require that the City be estopped from urging dismissal.
Bonham’s filing of the Objections in June of 2008 converted the administrative
proceeding into a judicial one, in which Bonham carried the burden of serving the
11
City with citation, not the other way around. If any party demonstrated a lack of
diligence in resolving the case it was Bonham. Once the City deposited the
condemnation award in the registry of the Trial Court, it had fulfilled its duties under
the law.
Nevertheless, Appellant alleges the City led Bonham to believe that it had
waived citation under TEX. PROP. CODE § 21.018. In order for the defense of estoppel
to apply to a municipality, a statement, or some other conduct, of the City’s officials
must have led Bonham to believe the City waived citation. See Roberts v. Haltom
City, 543 S.W.2d at 78. The official conduct must also be authorized. Id. No
evidence exists in the record demonstrating that the citation requirement was ever
waived, much less by an authorized individual, or that the City said or did anything
to mislead Appellant. It is an argument without a factual basis.
Exchanging basic discovery and dealing with simple procedural issues is not
the type of authorized statement or conduct to cause an estoppel to arise. In Texas
Resources, Inc. v. Diamond Shamrock Corp., 584 S.W.2d 522 (Tex.Civ.App.–
Beaumont 1979, no writ), a condemnor filed a petition in condemnation, had
commissioners appointed and deposited the commissioner’s award with the district
clerk in August of 1970. Id. at 524. No citation was issued and no further action was
taken until 1976, when the condemnees served written interrogatories on the
12
condemnor. Id. The interrogatories were not answered and, in May of 1978, the
condemnees filed a motion to compel answers. The Court dismissed the case after
condemnor responded by filing a motion to dismiss. Id.
Similarly, in Hilburn v. Brazos Electric Power Co-Op, Inc., the condemnor
filed its condemnation petition in 1971, had commissioners appointed in 1972 and
deposited the award in 1972. 683 S.W.2d at 59. The landowners filed their
objections on a timely basis, and the condemnor’s counsel even conceded it received
copies of the objections through the mail. Id. Nonetheless, no citation was issued or
served. Id. Two years later, in June of 1974, the condemnor exchanged surety bonds
for the previously deposited cash deposits. Id. Importantly, the court noted that no
pleadings were filed in connection with the substitution of the surety bonds for the
cash deposits and no orders were entered. Id.
The condemnation case remained dormant for eleven years after the objections
were filed. Finally, in 1983, the condemnee requested a trial setting and the
condemnor filed motions to dismiss the landowner’s objections and to adopt the
award of the special commissioners as judgments of the court. Id. The trial court
granted the motion. Id.
The Court of Appeals affirmed, noting “no pleadings were filed by Brazos
which would constitute an appearance waiving the necessity of citation.” Id. at 60.
13
The only documents filed by the City in this case were the certificates of discovery.
CR 47-50. Had the City filed a pleading, the result might be different. See Gordon
v. Conroe ISD, 789 S.W.2d 395, 397 (Tex.App.–Beaumont 1990, no writ).
In Skaggs v. City of Keller, the condemnor initiated proceedings in September
of 1992, eventually depositing the commissioners award in October of 1992. 880
S.W.2d at 265. Thereafter, the condemnees filed their objections and served those
objections on the city attorney for Keller on November 4, 1992. Id. The City
deposited the award of $90,000.00 in the court registry on December 4, 1992. Id. In
the deposit document, the condemnor asked the trial court to enter an order allowing
the condemnor to enter upon and take possession of the condemned property. Id.
Nine months later, in September of 1993, the trial court issued a notice of intent
to dismiss for want of prosecution and, thereafter, in October of 1993 the trial court
dismissed the condemnees’ objections to the special commissioners award. Id. The
court confined its analysis to whether the notice of deposit and the request for
possession constituted an appearance.2 The court eventually concluded that the filing
of the notice of deposit and request for an order to enter upon the property did not
amount to an appearance and waiver of citation. Id.
2
The court declined to consider whether any interrogatories or requests for production
served by the condemnor constituted a waiver of service because the alleged discovery requests
were not in the record on appeal. Id. at 266.
14
Bonham does not argue that filing the certificates of discovery constituted a
general appearance for which citation is waived. But if it had, the result would be the
same. In Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998) the court dealt with
what type of activity constituted a general appearance which in turn waived service
of process.3 In that case, a non-resident filed an Unverified Special Appearance, a
Motion to Quash Service, a Plea to the Jurisdiction, a Plea in Abatement, and Subject
to All Those Things, an Original Answer. Id. at 321. The unverified special
appearance was found by the trial court to constitute a general appearance. On appeal
to the Supreme Court, the court cited Moore v. Elektro-Mobil Technik GMBH, 874
S.W.2d 324, 327 (Tex. App.–El Paso 1994, writ denied), which stated that:
A party enters a general appearance whenever it invokes the judgment
of the court on any question other than the court’s jurisdiction; if a
defendant’s act recognizes that an action is properly pending or seeks
affirmative action from the court, that is a general appearance.
968 S.W.2d at 322. The Supreme Court then quoted another case, Investors
Diversified Services, Inc. v. Bruner, 366 S.W.2d 810, 815 (Tex. Civ. App–Houston
1963, writ ref’d., n.r.e.) to the effect that:
[A]lthough an act of defendant may have some relation to the cause, it
does not constitute a general appearance if it in no way recognizes that
the cause is properly pending or that the court has jurisdiction and no
3
Most of the cases which deal with what constitutes a general appearance arise in cases
dealing with special appearances.
15
affirmative action is sought from the court.
Nothing the City did in this case rises to the level of seeking affirmative action
(or any action for that matter) from the Trial Court.
In a condemnation context, filing pleadings constitutes a general appearance.
Gordon, 789 S.W.2d at 397. Here, the certificates of discovery were not pleadings,
sought no relief and sought no affirmative action of any sort from the Court. The
certificates of discovery simply acknowledged that the parties had exchanged written
discovery without Trial Court involvement.
In another case, the Supreme Court was presented with a question of whether
the filing of a Rule 11 agreement and thereafter engaging in discovery in connection
with a special appearance constituted a general appearance. Exito Electronics Co.,
Ltd. v. Trejo, 142 S.W.3d 302, 303 (Tex. 2004). In Exito, a non-resident was sued
and, before filing an answer, filed a Rule 11 agreement with the plaintiff extending
the deadline for the defendant to file its initial responsive pleading. Id. at 304. The
plaintiff and defendant even entered into two additional Rule 11 agreements further
extending the time to answer. Id. The defendants also engaged in pretrial discovery,
with the defendant even seeking relief from the trial court regarding responses to
requests for admission. Id.
After losing at the trial court, the defendant appealed to the court of appeals,
16
which held that the defendant had waived the special appearance by filing the Rule
11 agreements and participating in discovery. Id. On appeal to the Texas Supreme
Court, the Court found that the Rule 11 agreement “did not address the trial court”
and did not otherwise seek relief or affirmative action by the trial court. Id. at 306.
The Supreme Court concluded that the Rule 11 Agreement did not amount to a tacit
admission that the action was properly pending and did not constitute a general
appearance. Id. In addition, the Supreme Court also noted that engaging in
discovery, and even seeking relief in the trial court in connection with discovery
matters, did not constitute a general appearance. Id. at 307.
If filing multiple Rule 11 Agreements and engaging in discovery is not a
general appearance, then filing a certificate of written discovery is likewise not a
general appearance. No affirmative relief of any kind was sought in either
instrument. The certificates simply acknowledge what the parties had done without
Trial Court involvement.
Citation was not waived and the City did not enter a general appearance. The
City respectfully asks this Court to affirm the judgment of the trial court.
CONCLUSION
The Trial Court was clearly within its authority and discretion to dismiss the
case for want of prosecution. As the objecting party, Bonham was required to serve
17
and cite the City with its Objections to the Award of the Special Commissioners
under TEX. PROP. CODE § 21.018(a), and failed to do so until January 8, 2016. After
a preliminary exchange of discovery, the case remained completely dormant for seven
and a half years until the City filed its Motion to Render Final Judgment to secure its
easements in the subject property on December 15, 2015. Thus, having considered
the totality of the circumstances and the actions of both parties, the Trial Court
properly dismissed the judicial proceeding for want of prosecution and entered
judgment according to the Special Commissioners’ award consistent with prevailing
principles of both law and equity.
PRAYER
WHEREFORE, PREMISES CONSIDERED, upon hearing hereof, Appellee
City of Corsicana prays that the Court affirm the judgment of the Trial Court and the
City be awarded such other and further relief to which it may show itself justly
entitled.
18
Respectfully submitted,
JACOBSON LAW FIRM, P.C.
733 West Second Avenue
Corsicana, Texas 75110
(903) 874-7117
Fax: (903) 874-7321
tljacobson@sbcglobal.net
By: /s/ Terry Jacobson
Terry Jacobson
State Bar No. 10528000
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has
been served on counsel for Plaintiff, John H. Jackson, P.O. Box 1, Powell, Texas,
75110, 301 W. 3rd Ave. Corsicana, Texas 75110, by certified mail, return receipt
requested this 7th day of September, 2016.
/s/ Terry Jacobson
Terry Jacobson
CERTIFICATE OF COMPLIANCE
This Appellee’s Brief contains 4,152 words.
/s/ Terry Jacobson
Terry Jacobson
19