City of Tyler, Texas v. Timothy L. Beck and Susan G. Beck

Opinion

THITSUPREME COURT OF TE xW Post Office Box 12248

Austin, Texas 78711

(512) 463-1312

June 30, 2006

Mr. William S. Hommel Jr. Ms. Melanie S. Reyes Williams S. Hommel, Jr., P.C. Flowers Davis, P.L.L.C. 3304 S. Broadway, Suite 100 1021 ESE Loop 323, Suite 200 Tyler, TX 75701 Tyler, TX 75701

RE: Case Number: 04-0813 Court of Appeals Number: 12-03-00170-CV Trial Court Number: 45,962-A ^WeoOHfOFAPPEALS

1Court o/Appeals District Style: CITY OF TYLER, TEXAS v. JL "52006 j I&K TIMOTHY L. BECK AND SUSAN G. BECK S-LUSK,

Dear Counsel:

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court and delivered the enclosed per curiam opinion and judgment in the above-referenced cause.

Sincerely,

Andrew Weber, Clerk

by Claudia Jenks, Chief Deputy Clerk Enclosures cc: Ms. Cathy S. Lusk Ms. Judy Carnes

IN THE SUPREME COURT OF TEXAS

^====== TS?/"C0URTOF APPFAi « NO. 04-0813

City of Tyler, Texas, Petitioner, OL£RK

V.

Timothy L. Beck and Susan G. Beck, Respondents

On Petition for Review from the Court of Appeals for the Twelfth District of Texas

PER CURIAM

Timothy and Susan Beck owned real propertythat the City of Tyler initiated proceedingsto condemn. Three appointed special commissioners assessed damages to the Becks and entered an award. Tex. Prop. Code §21.014. The City, and then the Becks, filed objections to the award and sent copies to opposing counsel, but neither issued formal service of citation on the other as the Property Code requires. Id. § 21.018(b); see alsoAmason v. Natural GasPipeline Co., 682 S.W.2d 240, 242 (Tex. 1985) (citing Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962)). The trial court dismissed the case for want ofprosecution due to lack ofservice and reinstated the award. The court of appeals affirmed, holding that conversion of an administrative condemnation proceeding into a judicial one, which operates to vacate the commissioners' award, turns upon service of citation, the absence ofwhich in this case demonstrated a failure to prosecute. S.W.3d _. We disagree. Judicial condemnation proceedings commence when an objection to the award is filed; if serviceof citation is not timely secured,the awardis subjectto reinstatement. In this case, both parties invoked thejudicial process byfiling objections to thecommissioners' award, and each participated in the judicial proceedings with notice of the other's objections. Under these circumstances, we hold that the purposes of the formal citationrequirement were met and the trial court erred in dismissing the case. Accordingly, we reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.

The Texas eminent-domain scheme is a two-part processthat beginswith an administrative proceeding followed, if necessary, byajudicial one. Amason, 682 S.W.2d at241. The condemning entity initiates a condemnation proceeding byfiling a petition intheproper court. Tex. Prop. Code §21.012. The court then appoints three special commissioners to conduct a hearing and determine justcompensation. Id. §§21.014-15. Once thecommissioners have made anaward, thecondemnor, if satisfied, mustpaythe amount of the award to the condemnee, deposit that amount in the court's registry, or posta sufficient bond. Id. § 21.021(a). Condemnation proceedings are administrative in nature "[fjrom the time the condemnor files the original statement seeking condemnation up to the time of the Special Commissioners' award." Amason, 682 S.W.2d at 242.

Either partymaychallenge thespecial commissioners' award byfiling objections inthesame court. Tex. Prop. Code § 21.018(a). Upon the filing of objections, the award is vacated and the administrative proceeding converts into ajudicial proceeding. Denton County, 361 S.W.2d at 200. The objecting party must secure service of citation on the adverse party and try the case in the manner of other civil causes. TEX. PROP. CODE § 21.018(b); see also Amason, 682 S.W.2d at 242. Although the Property Code specifically provides that "thecourt shall cite the adverse party," TEX.

Prop. Code § 21.018(b), we have clarified thatit is incumbent upon theobjecting party to serve the adverse party withcitation oftheobjections. Amason, 682 S.W.2d at242. Iftheobjecting party fails to do so within a reasonable time, the trial court should dismiss the objections for want of prosecution andreinstate the special commissioners' award. See Amason, 682 S.W.2d at 242.

The City claims that formal citation is obviated when the opposing party makes a general appearance. The City asserts that the Becks made a general appearance and submitted tothe court's jurisdiction by filing their own objections to the award, and therefore the trial court erred in its dismissal for lack of citation. The Becks counter that their filing in no way discharged the City's procedural obligation toserve them with citation. They argue that citation becomes unnecessary only when a party clearly demonstrates actual notice of the opposing side's objections. The Becks maintainthat their actions do not demonstrate anyrecognition of the City's pending objections, and therefore service was necessary to proceed.

The service requirement affords a means for the court to acquire jurisdiction overthe party to be served.1 The circumstances ofthis case demonstrate that the purpose of the service of citation

requirement was satisfied because the Becks, by filing their own objections, invoked the judicial process and the court acquired inpersonam jurisdiction over them. See Denton County, 361 S.W.2d

1See Omni Capital Int 7v. Rudolf Wolff&Co., 484 U.S. 97,104 (1987) (noting that absent consent, "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service ofsummons mustbesatisf\ed'y,Boldenv.GreenpointMortgageFundingJnc.,^o.3:04-CV-0379-?,2004\J.S.Dist.LEXlS2050S, at*14 (N.D. Tex., Oct. 13, 2004) ("The chief purpose ofservice ofprocess isto provide 'notice ofthe pendency ofa legal action . . ..'") (citation omitted); Rose v. Rose, 117 S.W.3d 84, 87 (Tex. App.—Waco 2003, no pet.) ("Without actual service on a defendant or an effective substitute for service, a trial court generally lacks the power to render judgment against the defendant. .. . The purpose ofservice ofcitation is to ensure that the defendant has notice ofthe suit."); TACAmericas, Inc. v. Boothe, 94S.W.3d 315,318 (Tex. App.—Austin 2002, no pet.) ("Generally, the purpose ofcitation isto give the court jurisdiction over the parties and to provide notice to the defendant. .. .").

at 200. We also note that the City's objections were served on the Becks' counsel by mail. See TEX. R. Civ. P. 21a. Although service was not by citation, the Becks were already before the court and the purposes of formal citationwere met. Accordingly, the trial court erred in dismissing the case for want of prosecution. See State v. Reeh, 434 S.W.2d 416, 418 (Tex. Civ. App.—San Antonio 1968, writ ref d n.r.e.) (holding that servicewas rendered unnecessary by the State's participation in a condemnationjudicial proceeding and noting that the "State does not contend that it did not receive a copy of the condemnees' objections, or that it was in anymannerprejudiced bythe failure of condemnees to cite it").

The Becks also contend the City failed to timely perfect its appeal. The City filed two post-

judgmentmotions, a Motion for New Trial and a Verified Motionto Reinstate, shortlyafterthe trial court's order dismissing the case. The City filed its appeal more than thirty days after the judgment, thedefault period allowedto perfectan appeal, but within ninety days of thejudgment, theextended period allowed when a post-judgment motion is filed. See TEX. R. APP. P. 26.1. The Becks argue thatthe City's post-judgmentmotionsdid not extendthe timeto perfect appeal because the motions were filed by new counsel who had not been designated as the City's attorney in charge. We disagree. Rule 8 of the Texas Rules of CivilProcedure provides that "[a]ll communications ... with respect to a suitshall be sent to the attorney in charge," andthatanychange of that designation must be made by written notice to the court and the other parties. TEX. R. Civ. P. 8. However, nothing in the rule indicates that a motion filed by an attorney other than the designated attorney in charge is void or that other attorneys are not authorized to act on behalf of the party. The City's post- judgment motions properly extended the plenary power of the court and the time for appeal.

Accordingly, we grant the City's petition for review and without hearing oral argument, reverse the courtof appeals'judgment andremand thecase to thetrial courtforfurther proceedings consistent with this opinion. TEX. R. App. P. 59.1.

OPINION DELIVERED: June 30, 2006.

IN THE SUPREME COURT OF TEXAS No. 04-0813

City of Tyler, Texas, Petitioner, v.

Timothy L. Beck and Susan G. Beck, Respondents

On Petition for Review from the Court of Appeals for the Twelfth District of Texas

judgment

THE SUPREME COURT OF TEXAS, having heard this cause on petition for review from the Court of Appeals for the Twelfth District, and having considered the appellate record and counsels' briefs, but without hearing oral argument under Texas Rule of Appellate Procedure 59.1, concludes that the court of appeals' judgment should be reversed.

IT IS THEREFORE ORDERED, in accordance with the Court's opinion, that:

1) The judgment of the court of appeals is reversed;

2) The cause is remanded to the trial court for further proceedings consistent with this Court's opinion; and 3) Petitioner City of Tyler shall recover, and respondents Timothy L. Beck and Susan G. Beck shall pay, the costs incurred in this Court.

Copies of this judgment and the Court's opinion are certified to the Court of Appeals for the Twelfth District and to the County Court at Law No. 2 of Smith County, Texas, for observance.

Opinion of the Court Delivered Per Curiam

June 30, 2006