Highway 205 Farms, Ltd. and Maurice E. Moore, Jr. v. City of Dallas
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Opinion
FILED 14-0917 4/13/2015 11:26:11 AM tex-4860096 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK
No. 14-0917
IN THE SUPREME COURT OF TEXAS
HIGHWAY 205 FARMS, LTD. and MAURICE E. MOORE, JR.,
Petitioners, v.
CITY OF DALLAS,
Respondent.
Appeal from the Fifth District Court of Appeals at Dallas No. 05-13-00951-CV
RESPONSE TO PETITION FOR REVIEW AND CITY’S APPENDIX
WARREN M. S. ERNST City Attorney’s Office Dallas City Attorney 1500 Marilla Street, Room 7D North Dallas, Texas 75201 Barbara E. Rosenberg Texas Bar No. 17267700 Telephone: 214-670-3519 James B. Pinson Telecopier: 214-670-0622 Texas Bar No. 16017700 barbara.rosenberg@dallascityhall.com Christopher D. Bowers james.pinson@dallascityhall.com Texas Bar No. 02731300 chris.bowers@dallascityhall.com Sonia T. Ahmed sonia.ahmed@dallascityhall.com Texas Bar No. 24082605 Assistant City Attorneys
ATTORNEYS FOR THE CITY OF DALLAS IDENTITIES OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 53.3(a), the
following is a supplement to the list of counsel in the Petitioners’ Identity of
Parties & Counsel:
Counsel for Respondent/Appellant/Plaintiff:
Sonia T. Ahmed Dallas City Attorney’s Office 1500 Marilla Street, Room 7BN Dallas, Texas 75201
i TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ......................................................... i
INDEX OF AUTHORITIES.................................................................................... iv
EXPLANATION OF RECORD CITATIONS ....................................................... vii
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT OF JURISDICTION..........................................................................x
RESPONSE TO ISSUES PRESENTED ................................................................ xii
1. Petitioners fail to present an error for the court of appeals’ dismissal of the City’s appeal for want of jurisdiction.
2. Petitioners do not present argument and authority that the county court’s order of dismissal for want of prosecution was an appealable judgment.
3. Petitioners’ appeal is moot.
4. The county court’s order is void because it does not have subject-matter jurisdiction to dismiss an eminent domain proceeding for want of prosecution during the administrative phase.
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF ARGUMENT .................................................................................5
ARGUMENT .............................................................................................................6
I. Petitioners failed to assert that there was an appealable judgment in the trial court or that the court of appeals’ dismissal for want of jurisdiction of the City’s appeal was error, which is necessary for the Court’s jurisdiction and for the Court to conduct a review of the merits. ....................................................................... 6
ii II. The appeal is moot. ......................................................................................... 9
III. The trial court does not have authority to dismiss a condemnation proceeding for want of prosecution in the administrative phase. .................................................................................... 10
A. The county court did not have inherent power to dismiss a statement in condemnation for want of prosecution during the administrative phase...........................................................10
B. The Property Code does not provide the county court with jurisdiction to dismiss a statement in condemnation during the administrative phase...........................................................16
C. Rule 165a does not apply to the administrative proceeding. ..........................................................................................18
PRAYER ..................................................................................................................19
CERTIFICATE OF SERVICE ................................................................................21
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ..........................................23
APPENDIX
Order Reinstating Case ...................................................................................... Tab 1
Special Commissioners’ Award ......................................................................... Tab 2
Objections to Special Commissioners’ Award .................................................. Tab 3
Notice of Deposit of Special Commissioners’ Award ....................................... Tab 4
Trial Setting........................................................................................................ Tab 5
iii INDEX OF AUTHORITIES
CASES
Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240 (Tex. 1984) .....................................................................9, 11
Bevil v. Johnson, 307 S.W.2d 85 (Tex. 1957) ...........................................................................14
Blasingame v. Krueger, 800 S.W.2d 391 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) ..................................................................................12
City of Austin v. Travis Cnty. Landfill Co., L.L.C., 73 S.W.3d 234 (Tex. 2002) .............................................................................7
City of Carrollton v. OHBA Corp., 809 S.W.2d 587 (Tex. App.—Dallas 1991, no writ).............................. 11, 13
City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951, 2014 WL 3587403 (Tex. App.—Dallas Jul. 22, 2014, orig. proceeding [mand. pending], pet filed) ................... ix, x, 4, 10
City of W. Univ. Place v. Martin, 123 S.W.2d 638 (Tex. 1939) ...........................................................................9
Clanton v. Clark, 639 S.W.2d 929 (Tex. 1982) .........................................................................14
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) ...........................................................................7
Dickey v. City of Houston, 501 S.W.2d 293 (Tex. 1973) .................................................................. 10, 11
Fin. Comm’n v. Norwood, 418 S.W.3d 566 (Tex. 2013) ...........................................................................x
Fortune v. Killebrew, 23 S.W. 976 (Tex. 1893) ...............................................................................14 iv Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008) ...........................................................................7
Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 823 (Tex.App.—San Antonio 1994, orig. proceeding) ....................................................................................... 11, 12, 13
Hicks Bldg. & Equip. Co., Inc. v.
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FILED 14-0917 4/13/2015 11:26:11 AM tex-4860096 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK
No. 14-0917
IN THE SUPREME COURT OF TEXAS
HIGHWAY 205 FARMS, LTD. and MAURICE E. MOORE, JR.,
Petitioners, v.
CITY OF DALLAS,
Respondent.
Appeal from the Fifth District Court of Appeals at Dallas No. 05-13-00951-CV
RESPONSE TO PETITION FOR REVIEW AND CITY’S APPENDIX
WARREN M. S. ERNST City Attorney’s Office Dallas City Attorney 1500 Marilla Street, Room 7D North Dallas, Texas 75201 Barbara E. Rosenberg Texas Bar No. 17267700 Telephone: 214-670-3519 James B. Pinson Telecopier: 214-670-0622 Texas Bar No. 16017700 barbara.rosenberg@dallascityhall.com Christopher D. Bowers james.pinson@dallascityhall.com Texas Bar No. 02731300 chris.bowers@dallascityhall.com Sonia T. Ahmed sonia.ahmed@dallascityhall.com Texas Bar No. 24082605 Assistant City Attorneys
ATTORNEYS FOR THE CITY OF DALLAS IDENTITIES OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 53.3(a), the
following is a supplement to the list of counsel in the Petitioners’ Identity of
Parties & Counsel:
Counsel for Respondent/Appellant/Plaintiff:
Sonia T. Ahmed Dallas City Attorney’s Office 1500 Marilla Street, Room 7BN Dallas, Texas 75201
i TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ......................................................... i
INDEX OF AUTHORITIES.................................................................................... iv
EXPLANATION OF RECORD CITATIONS ....................................................... vii
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT OF JURISDICTION..........................................................................x
RESPONSE TO ISSUES PRESENTED ................................................................ xii
1. Petitioners fail to present an error for the court of appeals’ dismissal of the City’s appeal for want of jurisdiction.
2. Petitioners do not present argument and authority that the county court’s order of dismissal for want of prosecution was an appealable judgment.
3. Petitioners’ appeal is moot.
4. The county court’s order is void because it does not have subject-matter jurisdiction to dismiss an eminent domain proceeding for want of prosecution during the administrative phase.
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF ARGUMENT .................................................................................5
ARGUMENT .............................................................................................................6
I. Petitioners failed to assert that there was an appealable judgment in the trial court or that the court of appeals’ dismissal for want of jurisdiction of the City’s appeal was error, which is necessary for the Court’s jurisdiction and for the Court to conduct a review of the merits. ....................................................................... 6
ii II. The appeal is moot. ......................................................................................... 9
III. The trial court does not have authority to dismiss a condemnation proceeding for want of prosecution in the administrative phase. .................................................................................... 10
A. The county court did not have inherent power to dismiss a statement in condemnation for want of prosecution during the administrative phase...........................................................10
B. The Property Code does not provide the county court with jurisdiction to dismiss a statement in condemnation during the administrative phase...........................................................16
C. Rule 165a does not apply to the administrative proceeding. ..........................................................................................18
PRAYER ..................................................................................................................19
CERTIFICATE OF SERVICE ................................................................................21
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 ..........................................23
APPENDIX
Order Reinstating Case ...................................................................................... Tab 1
Special Commissioners’ Award ......................................................................... Tab 2
Objections to Special Commissioners’ Award .................................................. Tab 3
Notice of Deposit of Special Commissioners’ Award ....................................... Tab 4
Trial Setting........................................................................................................ Tab 5
iii INDEX OF AUTHORITIES
CASES
Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240 (Tex. 1984) .....................................................................9, 11
Bevil v. Johnson, 307 S.W.2d 85 (Tex. 1957) ...........................................................................14
Blasingame v. Krueger, 800 S.W.2d 391 (Tex. App.—Houston [14th Dist.] 1990, orig. proceeding) ..................................................................................12
City of Austin v. Travis Cnty. Landfill Co., L.L.C., 73 S.W.3d 234 (Tex. 2002) .............................................................................7
City of Carrollton v. OHBA Corp., 809 S.W.2d 587 (Tex. App.—Dallas 1991, no writ).............................. 11, 13
City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951, 2014 WL 3587403 (Tex. App.—Dallas Jul. 22, 2014, orig. proceeding [mand. pending], pet filed) ................... ix, x, 4, 10
City of W. Univ. Place v. Martin, 123 S.W.2d 638 (Tex. 1939) ...........................................................................9
Clanton v. Clark, 639 S.W.2d 929 (Tex. 1982) .........................................................................14
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) ...........................................................................7
Dickey v. City of Houston, 501 S.W.2d 293 (Tex. 1973) .................................................................. 10, 11
Fin. Comm’n v. Norwood, 418 S.W.3d 566 (Tex. 2013) ...........................................................................x
Fortune v. Killebrew, 23 S.W. 976 (Tex. 1893) ...............................................................................14 iv Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conservation Dist. No. 1, 263 S.W.3d 910 (Tex. 2008) ...........................................................................7
Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 823 (Tex.App.—San Antonio 1994, orig. proceeding) ....................................................................................... 11, 12, 13
Hicks Bldg. & Equip. Co., Inc. v. Buice, 371 S.W.2d 44 (Tex. 1963) .........................................................................7, 9
Hooks v. Fourth Court of Appeals, 808 S.W.2d 56 (Tex. 1991) (orig. proceeding) .............................................17
In re Hereweareagain, Inc., 383 S.W.3d 703 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) ..................................................................................14
In re Jamail, 156 S.W.3d 104 (Tex. App.—Austin 2004, orig. proceeding) .......................8
In re State, 325 S.W.3d 848 (Tex. App.—Austin 2010, orig. proceeding) .....................15
In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) .........................15
John v. State, 826 S.W.2d 138 (Tex. 1992) .................................................................. 10, 18
Nunn v. New, 226 S.W.2d 116 (Tex. 1950) (orig. proceeding) ...........................................18
Patrick Media Grp., Inc. v. Dallas Area Rapid Transit, 879 S.W.2d 375 (Tex. App.—Eastland 1994, writ denied) ..........................11
Peak Pipeline Corp. v. Norton, 629 S.W.2d 185 (Tex. App.—Tyler 1982, no writ) ......................................12
Pearson v. State, 315 S.W.2d 935 (Tex. 1958) .............................................. x, 8, 10, 11, 14, 16 v Ramos v. Richardson, 228 S.W.3d 671 (Tex. 2007) .......................................................................6, 7
Rose v. State, 497 S.W.2d 445 (Tex.1973) ..........................................................................18
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007).........................................................................................x
State v. Giles, 368 S.W.2d 943 (Tex. 1963) (orig. proceeding) ...........................................10
Tex. Comptroller of Pub. Accounts v. Attorney Gen., 354 S.W.3d 336 (Tex. 2010) .......................................................................6, 7
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) .........................................................................14
STATUTES
Tex. Gov’t Code § 22.001..........................................................................................x
Tex. Prop. Code § 12.007 ..........................................................................................8
Tex. Prop. Code § 21.014 ................................................................................. 15, 17
Tex. Prop. Code § 21.015 ........................................................................................15
Tex. Prop. Code § 21.018 ........................................................................................18
Tex. Prop. Code § 21.019 ........................................................................................17
RULES
Tex. R. App. P. 53.4..................................................................................................6
Tex. R. App. P. 55.2..................................................................................................6
Tex. R. App. P. 33.1...................................................................................................6
Tex. R. App. P. 53.2...............................................................................................6, 9
vi EXPLANATION OF RECORD CITATIONS
For the convenience of the Court, the City will adopt the citations to the
record that the Petitioners used:
CR [page]: for the Clerks Record.
SCR [page]: for the Supplemental Clerk’s Record.
[Volume] RR [page]: for the Reporter’s Record.
Additionally, the City will cite:
City’s App’x Tab [number]: for additional documents attached to the City’s
response.
Pet. Brief at [page]: for the Petition for Review.
NFIB Br. at [page]: for the Brief of Friends of the Court, National
Federation of Independent Business and NFIB Small Business Brief.
AutoNation Br. at [page]: for the Brief of Friends of the Court, AutoNation
and Billingsley.
vii STATEMENT OF THE CASE
Nature of the Case: This is an eminent domain proceeding. The City of Dallas filed a Statement in Condemnation on August 30, 2011. (CR 6-9.) The county court at law appointed special commissioners. (SCR 4-7.) The special commissioners’ hearing was set for May 8, 2013. (SCR 8-10.)
Course of Proceedings: On March 7, 2013, Highway 205 Farms, Ltd. and Maurice E. Moore, Jr., filed a motion to dismiss for want of prosecution. (CR 34-8.) The City opposed. (CR 39-43.)
Trial Court: Judge Erleigh Wiley, County Court at Law, Kaufman County, Texas (dismissal). Judge Dennis P. Jones, County Court at Law, Kaufman County, Texas (denial of reinstatement).
Trial Court’s Disposition: The court held a hearing on the motion to dismiss (1 RR 7-23). On April 17, 2013, the court dismissed the administrative proceeding for want of prosecution before the commissioners could hold their hearing. (CR 80 [Pet. App’x Tab 1].) The City timely filed a verified motion to reinstate, asserting the court did not have jurisdiction to dismiss. (CR 81-91.) On June 21, 2013, the court denied the motion to reinstate. (CR 100 [Pet. App’x Tab 2].)
Parties in Court of Appeals: Appellant: The City of Dallas. Appellees: Highway 205 Farms, Ltd. and Maurice E. Moore, Jr.
Court of Appeals: Memorandum opinion by Justice Evans, joined by Justices Fillmore and Lewis.
Court of Appeals’ Disposition: On July 22, 2014, the court of appeals held that the trial court did not have jurisdiction to dismiss the viii eminent domain proceeding for want of prosecution while the administrative phase of the proceeding was pending, making the dismissal a clear abuse of discretion. City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951, 2014 WL 3587403, at *4 (Tex. App.—Dallas July 22, 2014, orig. proceeding [mand. pending],pet. filed) (mem. op.). The court granted the mandamus and ordered the trial court to vacate its dismissal order and reinstate the case. Id. The court dismissed the appeal for want of jurisdiction. Id.
Administrative Action: On August 4, 2014, the trial court reinstated the case. (City’s App’x Tab 1.) On January 21, 2015, the special commissioners held a hearing and entered an award. (City’s App’x Tab 2.)
County Court Action: On January 30, 2015, Petitioners filed objections to the award of the special commissioners. (City’s App’x Tab 3.) The commissioners’ award has been deposited with the registry of the court. (City’s App’x Tab 4.) A trial date has been set. (City’s App’x Tab 5.)
ix STATEMENT OF JURISDICTION
Petitioners claim that this Court has jurisdiction under section 22.001 of the
Texas Government Code. (Pet. at xiii.) They refer only to the subsections of the
code that provide jurisdiction for construction of a statute or matters of law of
importance to the state. (Id. [citing Tex. Gov’t Code § 22.001(a)(3), (6)]).
Petitioners have ignored the prerequisite to those subsections that provides
jurisdiction only in cases that have been brought to the court of appeals from
appealable judgments of the trial courts.” Tex. Gov’t Code § 22.001.
Here, the court of appeals held that there was not an appealable judgment
and dismissed the appeal for want of jurisdiction. Highway 205 Farms, Ltd., 2014
WL 3587403, at *2-4. According to this Court’s holdings, appellate courts do not
have appellate jurisdiction of a condemnation proceeding until a timely objection is
made to a commissioners’ award. Pearson v. State, 315 S.W.2d 935, 939 (Tex.
1958). “[T]he jurisdiction of the appellate court as to the merits of a case extends
no further than that of the court from which the appeal is taken.” Id. at 938.
“‘Without jurisdiction the court cannot proceed at all in any cause; it may not
assume jurisdiction for the purpose of deciding the merits of the case.’” Fin.
Comm’n v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int’l
Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)).
x Because the dismissal order is not an appealable judgment, the appellate
court was correct that there was no judgment in the trial court, which deprives this
Court of jurisdiction to consider the merits of the appeal. The Court should deny
the petition for review for want of jurisdiction.
xi RESPONSE TO ISSUES PRESENTED
1. Petitioners fail to present an error for the court of appeals’ dismissal of the
City’s appeal for want of jurisdiction.
2. Petitioners do not present argument and authority that the county court’s
order of dismissal for want of prosecution was an appealable judgment.
4. The county court’s order is void because it does not have subject-matter
jurisdiction to dismiss an eminent domain proceeding for want of prosecution
during the administrative phase.
xii No. 14-0917
HIGHWAY 205 FARMS, LTD. and MAURICE E. MOORE, JR., Petitioners, v.
CITY OF DALLAS, Respondent.
RESPONSE TO PETITION FOR REVIEW
TO THE HONORABLE SUPREME COURT OF TEXAS:
The Fifth District Court of Appeals at Dallas dismissed the City of Dallas’s
appeal for want of jurisdiction. There is no judgment in an eminent domain
lawsuit until a judgment is entered after objections to a special commissioners’
award are filed. The Petitioners assert only that the county court had authority to
dismiss for want of prosecution during the administrative phase. (Pet. at 4.) The
petition does not address whether there was a judgment to appeal. The failure to
address whether the trial court order was appealable is reason enough to deny this
petition for review, but the controversy is also moot and the petition fails to present
error.
1 STATEMENT OF FACTS
The court of appeals correctly recited the facts of this case.
On August 30, 2011, the City filed a Statement in Condemnation seeking fee
simple title to property for the Lake Tawakoni 144-inch Raw Water Transmission
Pipeline Project in Kaufman County. (CR 6-9.) The City sought portions of six
parcels of property for which Highway 205 Farm, Ltd. is the owner of record and
Maurice E. Moore, Jr. has a mineral interest. (CR 6, 10-28.) This proceeding was
filed after the governing body of the City approved Resolution No. 081245, which
authorized and required the condemnation of that property. (CR 7.) The City had
previously made an offer to purchase the land before commencing this proceeding,
but the parties were unable to agree upon the terms of a voluntary conveyance.
(CR 8.) As a result, the City provided the owners with the landowner’s bill of
rights statement and filed suit in Kaufman County in an exercise of its power of
eminent domain under the procedures required by chapter 21 of the Texas Property
Code. (CR 8.) Accordingly, the county court appointed special commissioners.
(CR 39-50.) The county court signed an Order Appointing Special Commissioners
on August 31, 2011. (SCR 4-5.) The court subsequently signed an Order
Removing a Special Commissioner, Lee Schaffer, and Appointing a Replacement,
Don Burt, on October 24, 2011. (SCR 6-7.) The commissioners’ oaths were filed
with the court on November 18, 2011. (CR 29-31.)
2 On March 7, 2013, Highway 205 Farm, Ltd. and Maurice E. Moore, Jr.
(hereinafter “Landowners” or “Petitioners”) filed a motion to dismiss for want of
prosecution. (CR 34-43.) In their motion to dismiss, Landowners argued that the
City failed to prosecute “pursuant to Texas Rule of Civil Procedure 165(a) and the
Court’s inherent authority to control its docket.” (CR 34.) The motion to dismiss
was predicated on an alleged 18 months of inactivity. (1 RR 8.) The City filed a
response to the motion to dismiss asserting that the trial court did not have
jurisdiction to dismiss the condemnation proceeding because it was an
administrative proceeding. (CR 39-43.) Landowners filed a reply. (CR 48-54.)
On March 11, 2013, four days after the motion to dismiss was filed, the
Special Commissioners issued a written order that scheduled the special
commissioners’ hearing to take place on May 8, 2013. (SCR 8-10.) On March 21,
2013, the trial court set a hearing on Landowners’ motion to dismiss for April 17,
2013. (CR 39-40.) On March 27, 2013, the City served Highway 205 Farms, Ltd.
with a notice of hearing ordered by the special commissioners. (CR 39-40.) The
notice said that the Special Commissioners would hear the parties on May 8, 2013.
(CR 44.)
The trial court held a hearing on the motion to dismiss. (1 RR 7-23.) On
April 17, 2013, the trial court signed an Order Granting Defendants’ Motion to
Dismiss for Want of Prosecution. (CR 80.)
3 On May 9, 2013, the City filed a verified motion to reinstate. (CR 81-91).
The City again argued that the court did not have jurisdiction to dismiss the
Statement in Condemnation. Landowners filed a response. (CR 92-99.)
On June 21, 2013, the trial court heard the motion and signed an Order
Denying the City’s Motion to Reinstate. (CR 100; 2 RR 7-26.) Because the trial
court did not have jurisdiction to dismiss the administrative proceeding, the City
submitted a petition for writ of mandamus complaining of the dismissal for want of
prosecution and the denial of the City’s verified motion to reinstate. City of Dallas
v. Highway 205 Farms, Ltd., No 05-13-00951, 2014 WL 3587403, at *1 (Tex.
App.—Dallas July 22, 2014, pet filed) (mem. op.). The City also brought an
appeal of the dismissal order. The appellate court consolidated the appeal and the
mandamus. Id.
On July 22, 2014, the court of appeals held that the trial court did not have
jurisdiction to dismiss for want of prosecution the eminent domain proceeding
during the administrative phase of the case, making the dismissal a clear abuse of
discretion. Id. at *4. The court granted the mandamus and ordered the trial court
to vacate its dismissal order and reinstate the case. Id. The court dismissed the
appeal for want of jurisdiction. Id.
On August 4, 2014, the county court reinstated the case. (City’s App’x Tab
1.) On January 21, 2015 the special commissioners held a hearing and entered an
4 award. (City’s App’x Tab 2.) On January 30, 2015, Landowners filed objections
to the award of the special commissioners. (City’s App’x Tab 3.) The
commissioners’ award has been deposited in the registry of the trial court. (City’s
App’x Tab 4.) A trial date has been set. (City’s App’x Tab 5.)
On January 12, 2015, Landowners filed this petition for review in an attempt
to appeal from the court of appeals’ dismissal of the City’s appeal, a dismissal
concluding that the trial court’s order was void and not appealable.
SUMMARY OF ARGUMENT
Petitioners have not sought review of an appealable judgment. The court of
appeals dismissed the City’s appeal for want of jurisdiction because the dismissal
for want of prosecution in the county court was entered in the administrative phase
before the proceeding became a lawsuit. Without an appealable judgment, the
Court does not have jurisdiction to grant the petition on the merits. Because
Petitioners have not brought an issue or argument about the appealability of the
court of appeals’ judgment, Petitioners have waived any basis for the reversal of
the judgment. Moreover, a commissioners’ hearing has been held in this case,
objections to the commissioners’ award have been filed by the Petitioners, and the
case has been set for trial, eliminating the underlying controversy about the
Petitioners’ motion to dismiss the administrative proceeding. Thus, the
controversy has become moot.
5 Finally, if the merits are reached, Texas jurisprudence provides that the
county court cannot interfere with the special commissioners’ hearing. The
dismissal for want of jurisdiction was void.
Accordingly, the Court should deny the petition for review.
ARGUMENT
I. Petitioners failed to assert that there was an appealable judgment in the trial court or that the court of appeals’ dismissal for want of jurisdiction of the City’s appeal was error, which is necessary for the Court’s jurisdiction and for the Court to conduct a review of the merits.
The court of appeals’ disposition of the City’s appeal did not reach the
merits of the trial court’s dismissal. The court dismissed the appeal for want of
jurisdiction. Petitioners have failed to present an issue or argument that the court
of appeals’ entry of the dismissal of the City’s appeal for want of jurisdiction is
erroneous. (Pet. at xvii, 6-21.) Petitioners are required to discuss that issue before
the merits of the trial court’s dismissal for want of prosecution can be reached.
When filing an appeal, the burden lies on the petitioner to raise and discuss
any issues the appeal is based on. Ramos v. Richardson, 228 S.W.3d 671, 673
(Tex. 2007) (per curiam). The rules of procedure require that a party present the
issues to be decided by this Court in the party’s petition and brief on the merits.
Tex. Comptroller of Pub. Accounts v. Attorney Gen., 354 S.W.3d 336, 352 (Tex.
2010) (citing Tex. R. App. P. 33.1, 53.2(f), 53.4, 55.2(f)). “[I]ssues not presented
in the petition for review and brief on the merits are waived.” Tex. Comptroller of 6 Pub. Accounts, 354 S.W.3d at 352 (quoting Guitar Holding Co., L.P. v. Hudspeth
Cnty. Underground Water Conservation Dist. No. 1, 263 S.W.3d 910, 918 (Tex.
2008)); Ramos, 228 S.W.3d at 673 (refusing to address an argument raised in
petitioners’ merits brief because petitioners failed to make it in their petition for
review); City of Austin v. Travis Cnty. Landfill Co., L.L.C., 73 S.W.3d 234, 241 n.
2 (Tex. 2002) (precluding consideration of an argument raised below because the
respondent disclaimed the argument before the Supreme Court). If a petitioner
does not present the error at all, the Court does not have a basis for reversing the
judgment of the court of appeals. Hicks Bldg. & Equip. Co., Inc. v. Buice, 371
S.W.2d 44, 45 (Tex. 1963) (the court entered a judgment of refusal, no reversible
error, because the petitioners failed to bring forth and discuss the error of the lower
court). In fact, if the petitioners’ brief lacks any discussion of the error, it is
waived. Ramos, 228 S.W.3d at 673. The Court does not “stretch for a reason to
reverse that was not raised.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,
776 (Tex. 2010).
Petitioners’ issue only asserts the authority of the trial court to dismiss a
condemnation proceeding in the administrative phase. (Pet. at xvii.) Petitioners do
not argue that a dismissal for want of prosecution in the trial court is an appealable
judgment. They cannot, because as discussed in Section III below, an appellate
court does not have appellate jurisdiction of a condemnation proceeding until a
7 timely objection is made to a commissioners’ award. Pearson, 315 S.W.2d at 939.
Here, because the dismissal order was entered before objections were filed, the
dismissal was not an appealable judgment. See id. at 939 (holding that the trial
court was statutorily authorized to enter the judgment in the absence of objections
and such judgment was not appealable because objections were not filed and so it
was not considered a judgment in a civil case).
Petitioners do not argue that the dismissal for want of prosecution of the
administrative proceeding is an appealable judgment. Instead, they argue that the
City’s filing of a lis pendens with the Statement in Condemnation makes the
condemnation proceeding in the administrative phase a lawsuit. (Pet. at 12-14.)
The Texas Property Code explicitly authorizes the City to file a lis pendens in the
deed records when it files a statement in condemnation in an eminent domain
proceeding. Tex. Prop. Code § 12.007(a) (“After the plaintiff’s statement in an
eminent domain proceeding is filed . . . , a party to the action . . . may file for
record . . . a notice that the action is pending.”). Whether a matter is a lawsuit or
an administrative proceeding is not controlled by the lis pendens, which is merely
notice that the eminent domain matter is pending. Instead, a court looks at the
actual proceeding to determine whether a lis pendens is allowed under the statute.
In re Jamail, 156 S.W.3d 104, 107 (Tex. App.—Austin 2004, orig. proceeding).
Here, the nature of the proceeding is established in chapter 21 of the Property
8 Code. The proceeding when filed is administrative in nature. Amason v. Natural
Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1984). Thus, there is no judgment to
appeal. The Court has no appellate jurisdiction.
Further, because Petitioners have failed to present an issue or argue whether
there is an appealable judgment, they have waived any error in this case. See Tex.
R. App. P. 53.2(i). Accordingly, the Court does not have a basis to reverse the
court of appeals. See Hicks Bldg. & Equip. Co., Inc., 371 S.W.2d at 45. The Court
should deny the petition for review.
II. The appeal is moot.
Appellate courts do not decide cases where no actual controversy exists
between the parties at the time of the hearing. City of W. Univ. Place v. Martin,
123 S.W.2d 638, 639 (Tex. 1939). Petitioners’ complaint was that the eminent
domain proceeding had been pending too long in the administrative phase and
should remain dismissed. On August 4, 2014, the trial court reinstated the case.
(City’s App’x Tab 1.) On January 21, 2015, the special commissioners held a
hearing and entered an award. (City’s App’x Tab 2.) On January 30, 2015,
Petitioners filed objections to the award of the special commissioners. (City’s
App’x Tab 3.) The case is now a lawsuit. The City has deposited the award with
the registry of the court, entitling it to possession. (City’s App’x Tab 4.) The case
has been set for trial. (City’s App’x Tab 5.) The controversy about dismissing the
9 proceeding in the administrative phase is moot. For that reason, the Court should
deny the petition for review.
III. The trial court does not have authority to dismiss a condemnation proceeding for want of prosecution in the administrative phase.
If the Court considers the ability of the trial court to dismiss for want of
prosecution in the administrative phase, there is no statute or rule that provides
subject-matter jurisdiction to a county court or gives a county court the capacity to
act as a judicial tribunal until after the commissioners’ award has been filed and a
party objects. Petitioners and Amici cite none. The Court should deny the petition
for review for the following reasons.
A. The county court did not have inherent power to dismiss a statement in condemnation for want of prosecution during the administrative phase.
The court of appeals correctly held that the county court did not have
inherent authority to dismiss for want of prosecution the proceeding in the
administrative phase, because it was not a civil proceeding at the time of the
dismissal. Highway 205 Farms, Ltd., 2014 WL 3587403, at *3 (citing Dickey v.
City of Houston, 501 S.W.2d 293, 294 (Tex. 1973)). In fact, an eminent domain
proceeding is an administrative proceeding until a party files an objection (appeal)
to the award of the special commissioners. John v. State, 826 S.W.2d 138, 141 n.5
(Tex. 1992); State v. Giles, 368 S.W.2d 943, 947 (Tex. 1963) (orig. proceeding);
Pearson, 315 S.W.2d at 937; Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 823 10 (Tex. App.—San Antonio 1994, orig. proceeding); Patrick Media Grp., Inc. v.
Dallas Area Rapid Transit, 879 S.W.2d 375, 376 (Tex. App.—Eastland 1994, writ
denied). Without a timely-filed objection, an eminent domain proceeding never
becomes a civil case. Dickey, 501 S.W.2d at 294. Only after the commissioners
have been appointed and sworn and an award has been filed, and only by filing
objections to the award, may the condemnee invoke the legal jurisdiction of the
trial court. City of Carrollton v. OHBA Corp., 809 S.W.2d 587, 589 (Tex. App.—
Dallas 1991, no writ). Thus, under Texas law, the first phase of an eminent
domain proceeding is an administrative proceeding, not a judicial case. Id. (citing
Amason, 682 S.W.2d at 241). The judge acts purely as an administrative agent.
Id.; see Gulf Energy Pipeline Co., 884 S.W.2d at 822 (“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.”).
A condemnation proceeding is not within the general jurisdiction of the county
court. Pearson, 315 S.W.2d at 937. “[T]he filing of timely objections confers
jurisdiction upon the county court to hear and determine the issues in the exercise
of its judicial powers.” Id. at 937.
Petitioners and Amici agree that an eminent domain proceeding consists of
two distinct parts. They agree that the county court dismissed the condemnation
on Petitioners’ motion during the administrative phase. (Pet. at 6; NFIB Br. at 15-
11 16; AutoNation Br. at 10.) Petitioners claim that the county court at law has
inherent authority to enter a dismissal for want of prosecution because a court has
inherent authority to aid in the exercise of its jurisdiction. (Pet. at 14-15, 17-19.)
However, the case law is unambiguous. A county court at law has no authority to
interfere with the administrative proceedings of the special commissioners; instead,
the trial court’s jurisdiction, except for the appointment of the special
commissioners, begins only after objections are filed to the special commissioners’
decision after the special commissioners’ hearing. Peak Pipeline Corp. v. Norton,
629 S.W.2d 185, 186 (Tex. App.—Tyler 1982, no writ). And a court has no
authority during the administrative proceeding to grant a continuance, set the
hearing dates, or dismiss the proceedings for want of prosecution on a motion of
the property owner. See Gulf Energy Pipeline Co., 884 S.W.2d at 823 (stating that
the Property Code does not give the trial court power to oversee the exercise of the
commissioners’ powers during the administrative proceeding but does delegate to
the commissioners the authority and limited discretion to administer the time and
place of the commissioners’ hearing).
In the administrative phase, the county court cannot exercise judicial
powers. Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex. App.—Houston [14th
Dist.] 1990, orig. proceeding) (“As distinguished from the county judge in his
administrative capacity, there is nothing which the county court can hear and
12 determine by the exercise of its judicial powers in a special commissioners
proceeding.”). Moreover, the county court does not have jurisdiction to set
deadlines within which a special commissioners’ hearing must be held. In Gulf
Energy Pipeline Co., the court considered the propriety of the district court’s
resetting the special commissioners’ hearing of several related eminent domain
proceedings to a later date and granting to the landowners a 60-day continuance of
the special commissioners’ hearing. Gulf Energy Pipeline Co., 884 S.W.2d at 822.
The conclusion was that without an objection to the commissioners’ award, the
proceeding never becomes a civil case. Id. at 822-23. The orders resetting the
commissioners’ hearing and granting the continuance were outside the scope of the
trial court’s jurisdiction during the administrative proceeding. The trial court had
no authority to grant the continuance or set the hearing dates, and entering these
orders was a clear abuse of discretion. Id. at 823. A trial court does not have
jurisdiction to abate a condemnation proceeding after the commissioners have been
appointed and sworn. OHBA Corp., 809 S.W.2d at 589. The legal jurisdiction
could not even be invoked by the condemnee requesting declaratory and injunctive
relief to abate or seek declaratory relief in the administrative phase. Id.
There is no dispute that this proceeding was in the administrative stage when
it was dismissed for want of prosecution. The commissioners’ hearing was set but
had not been held. Petitioners and Amici assert that the county court has inherent
13 power to control his docket by dismissing for want of prosecution. (Pet. at 17-19;
NFIB Br. at 13-14; CR, at 35, 93-4.) However, the right to dismiss for want of
prosecution is the right to dismiss a lawsuit, not an administrative proceeding. See
Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957) (describing judicial discretion in
a civil lawsuit, noting no statutory authority). All the cases Petitioners cite to the
Court involve a court’s inherent powers in a lawsuit, not a condemnation
proceeding in the administrative phase. (See Pet. at 19-20 [citing Villarreal v. San
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (dismissing negligence
suit)]; NFIB Br. at 13 [citing Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982)
(dismissing will contest); In re Hereweareagain, Inc., 383 S.W.3d 703, 705 (Tex.
App.—Houston [14th Dist.] 2012, orig. proceeding) (reversing sanctions)].)
The Court has said that “a statutory proceeding in which the controversy is
not submitted to and determined by the court as a judicial tribunal ‘is neither a suit
at law nor a case in equity’ even though the same culminates in a judgment.”
Pearson, 315 S.W.2d at 937 (quoting Fortune v. Killebrew, 23 S.W. 976, 978
(Tex. 1893)). Thus, at the administrative stage the county court cannot enter a
judgment or exercise judicial powers. See Pearson, 315 S.W.2d at 937 (holding
that when there is no objection to an award, the court’s order directing that the
award be recorded and making the same the judgment of the court does not
constitute a judgment in a civil case). The county court does not gain jurisdiction
14 as a court until the objections are filed to the commissioners’ award. In re State,
325 S.W.3d 848, 851 (Tex. App.—Austin 2010, orig. proceeding). Thus, the
county court had no authority to decide the proper time for or timing of a
commissioners’ hearing.
Petitioners and Amici claim that the trial court must have authority to
dismiss administrative proceedings for want of prosecution or statements in
condemnation could remain pending indefinitely and the court could do nothing.
(Pet. at 6; NFIB Br. at 23; AutoNation Br. at 8, 14-16.) Amici complain that a
court should be able to compel the commissioners to hold a hearing. (NFIB Br. at
25.) The issue here is not about compelling the commissioners to hold a hearing—
the special commissioners had scheduled a hearing within weeks of the
dismissal—the issue here is about preventing a hearing. The commissioners have
the duty to schedule the commissioners’ hearing. Tex. Prop. Code § 21.015(a).
Moreover, the special commissioners themselves may compel the attendance of
witnesses and the production of testimony, administer oaths, and punish for
contempt in the same manner as a county judge. Id. § 21.014 (c); In re State, 65
S.W.3d 383, 386 (Tex. App.—Tyler 2002, orig. proceeding). And because the
special commissioners schedule the hearing, a property owner can request that the
special commissioners set the hearing just as the condemnor can. The solution is
to request a setting—not the dismissal of the condemnation proceeding.
15 Accordingly, the county court does not have any inherent authority to
dismiss an administrative proceeding. The county court’s jurisdiction to control its
docket begins when the administrative proceeding is complete. The county court
here did not have the jurisdiction to dismiss the administrative proceeding, because
the proceeding was not yet a civil case. Thus, the order is void.
B. The Property Code does not provide the county court with jurisdiction to dismiss a statement in condemnation during the administrative phase.
A condemnation proceeding is not within the general jurisdiction of the
county court. Pearson, 315 S.W.2d at 937. “An action to condemn is a special
statutory proceeding, wholly administrative in nature, at least until the
commissioners’ decision is filed with the county judge.” Id. at 936-37. “[T]he
filing of timely objections confers jurisdiction upon the county court to hear and
determine the issues in the exercise of its judicial powers.” Id. at 937. The power
of the county court as a judicial tribunal in eminent domain proceedings is thus
limited to that which has been conferred upon it by statute. Id. at 937-38. The
statute does not provide for dismissal on a motion of the property owner during the
administrative phase. Petitioners and Amici cite section 21.019 of the Property
Code for authority that a county court can dismiss on motion of the landowner in
the administrative phase. (Pet. at 15-17; NFIB Br. at 19-20.) That section
provides that the condemning authority can move to dismiss and the property
16 owner can seek dismissal in the judicial phase if the condemning authority does
not have the right to take. Tex. Prop. Code § 21.019. The statute entitles a
condemnor to dismiss a condemnation proceeding prior to taking possession of the
property. Id. § 21.019(a); Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 60
(Tex. 1991) (orig. proceeding). The condemnor can have monetary obligations for
dismissing after the special commissioners have made an award. Tex. Prop. Code
§ 21.019(a), (b). The statute does not provide the property owner the right to seek
dismissal in the administrative phase. The plain language of section 21.019(c)
shows that it only applies during the judicial, not the administrative, phase when it
refers to “[a] court that hears and grants a motion to dismiss a condemnation
proceeding made by a property owner seeking a judicial denial of the right to
condemn or that otherwise renders a judgment denying the right to condemn.” Id.
§ 21.019(c). The right to condemn is not an issue in the administrative phase. The
special commissioners’ only duty is to assess the damages of the owner to the
property being condemned. Id. § 21.014. Petitioners sought to dismiss for want of
prosecution. The statute does not provide for a dismissal on that basis.
Here, the trial court acted during the administrative phase and hindered the
commissioners from holding a hearing. Accordingly, the county court had no
jurisdiction to dismiss the case for want of prosecution.
17 C. Rule 165a does not apply to the administrative proceeding.
Petitioners and Amici assert the county court had authority to dismiss
pursuant to rule 165a of the Texas Rules of Civil Procedure. The use of this rule
assumes that there is a civil proceeding for the rule to apply to—which there is
not—when the pre-objection procedures are set by statute. See John, 826 S.W.2d
(distinguishing default procedures under rule 239a and section 21.049 of the Texas
Property Code). The Court, in promulgating rules of civil procedure, was not
attempting to prescribe rules to govern any procedure except judicial proceedings.
Nunn v. New, 226 S.W.2d 116, 117 (Tex. 1950) (orig. proceeding). It is when the
objections are filed that the court must “try the case in the same manner as other
civil cases.” Tex. Prop. Code § 21.018(b). At that time, an eminent domain
proceeding, like other civil cases, is subject to the rules of civil procedure. Rose v.
State, 497 S.W.2d 445, 446 (Tex. 1973) The existence of these rules does not
change the nature of the eminent domain proceeding before objections are filed. It
is an administrative proceeding and the rules of civil procedure do not apply.
Accordingly, the county court did not have jurisdiction to dismiss for want of
prosecution under the rules. Thus, the Court should deny the Petitioners’ petition
for review.
18 PRAYER
Petitioners have not brought a petition for review of an appealable judgment.
The court of appeals dismissed the appeal for want of jurisdiction and the
Petitioners do not complain about the dismissal. Further, the condemnation
proceeding was reinstated, and the commissioners held a hearing and entered an
award. The Petitioners objected. The award has been deposited. The case has
been set for trial. Because of the posture of the eminent domain proceeding, the
Court should deny this petition as moot or because Petitioners have waived any
complaint about the court of appeals judgment. Finally, if the merits are
considered, the county court could not exercise its judicial powers in the
administrative phase of an eminent domain proceeding, so the dismissal for want
of prosecution was void. Accordingly, this Court should deny this petition for
review.
19 Respectfully submitted,
WARREN M. S. ERNST Dallas City Attorney
/s/ Barbara Rosenberg Barbara Rosenberg Texas Bar No. 17267700 Christopher D. Bowers Texas Bar No. 02731300 James B. Pinson Texas Bar No. 16017700 Sonia T. Ahmed Texas Bar No. 24082605 Assistant City Attorneys
City Attorney’s Office 1500 Marilla Street, Room 7D North Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622 barbara.rosenberg@dallascityhall.com chris.bowers@dallascityhall.com james.pinson@dallascityhall.com sonia.ahmed@dallascityhall.com ATTORNEYS FOR CITY OF DALLAS
20 CERTIFICATE OF SERVICE
I hereby certify that on April 13, 2015, a copy of the foregoing document
was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure
(1) through an electronic filing manager (EFM) upon each person listed below if
the email address is on file with the EFM or (2) by email (if the address is
available) or first-class mail upon each person below who does not have an email
on file with the EFM:
Eddie Vassallo Charles A. Salazar Hayley D. Ailshie Vassallo & Salazar, P.C. 3710 Rawlins Street, Suite 1200 Dallas, Texas 75219
Kimberly S. Keller Keller Stolarczyk PLLC 234 W. Bandera Road, #120 Boerne, Texas 78006 Attorneys for Relators, Highway 205 Farms, LTD., and Maurice E. Moore, Jr.
Stephen F. Malouf Jeremy C. Martin Jonathan Nockels Malouf & Markels LLP 3811 Turtle Creek Blvd., Suite 800 Dallas, Texas 75219 Attorneys for Amici, AutoNation, Inc. & Billingsley Company
21 Leif A. Olson The Olson Firm PLLC 4830 Wilson Road, Suite 300 Humble, Texas 77396 Attorney for Amici National Federation of Independent Business and NFIB Small Business Legal Center
/s/Barbara Rosenberg Attorney for the City of Dallas
22 CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Certificate of Compliance with Type-Volume Limitation, Typeface requirements and Type Style Requirements
1. This brief complies with the type volume limitation of Tex. R. App. P. 9.4(i)(2) because: this brief contains 4,482 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style requirements of Tex. R. App. P. 9.4(e) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 in 14-point Times New Roman.
/s/Barbara Rosenberg Attorney for City of Dallas
Dated: April 13, 2015
23 APPENDIX
Order Reinstating Case ...................................................................................... Tab 1
Special Commissioners’ Award ......................................................................... Tab 2
Objections to Special Commissioners’ Award .................................................. Tab 3
Notice of Deposit of Special Commissioners’ Award ....................................... Tab 4
Trial Setting........................................................................................................ Tab 5 TAB 1 TAB 2 TAB 3 Filed: 3/25/2015 8:09:19 AM Rhonda Hughey, District Clerk Kaufman County, Texas Maria Olivares
No.84262CC CITY OF DALLAS, § IN COUNTY COURT § vs. § § HIGHWAY 205 FARMS, LTD., § THE DOW CHEMICAL COMPANY § AT LAW KAUFMAN COUNTY, TERRELL § INDEPENDENT SCHOOL DISTRICT, § and TRINITY VALLEY COMMUNITY § COLLEGE DISTRICT § KAUFMAN COUNTY, TEXAS
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS
NOW COMES the City of Dallas (hereafter, "City"), a municipal corporation situated in
Dallas County, Texas, Petitioner in the above entitled and numbered condemnation proceeding,
and respectfully shows the Court:
1. The written Award of Special Commissioners has been filed with the Judge in these
proceedings, whereby the amount of damages awarded against Petitioner by the special
commissioners is THREE HUNDRED FIFTY-SEVEN THOUSAND TWO HUNDRED
SIXTY-THREE DOLLARS AND N0/100 ($357,263.00) (hereafter, the "Award").
2. The City desires to enter upon and take possession of the property sought to be taken in
these proceedings pending litigation and, in order that it may do so, the City has deposited said
amount into the Registry of the Court by delivery to the District Clerk the following described
check, to wit: numbered 967718, dated March 24, 2015, payable to "Kaufman County" subject to
the order of the Defendants, in the amount of the Award.
3. By reason of said deposit, and pursuant to Texas Property Code §21.021(a)(2) and
§21.021 (c), the City is now entitled to enter upon and take possession of said property.
4. In accordance with Texas Property Code section 21.023, notice is hereby given that the
owner or the owner's heirs, successors, or assigns may be entitled to repurchase the property
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS Page 1 of5
TAB 4 under the provisions of Subchapter E of Chapter 21 of the Texas Property Code (a copy of which
is attached hereto as Exhibit A) or request from the City certain information relating to the use of
the property and any actual progress made toward that use, and that the repurchase price is the
price paid to the owner by the entity at the time the entity acquired the property through eminent
domain.
5. The City requests that the deposit of money in the Court's registry be invested and
the interest distributed according to law.
6. Defendants are entitled under existing law to withdraw part or all of the amount deposited
at any time; To the extent consistent therewith, the investment should be for a period of at least 6
months.
7. The City's federal tax identification number is: XX-XXXXXXX.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honorable Court order
the clerk to issue a writ of possession of the property condemned herein to the City of Dallas,
together with such other orders which may appear necessary and proper for the enforcement of
the City's right to enter upon and take possession of said property; and that the Court order the
clerk to invest the deposited funds in an interest bearing account in accordance with Section
117.053(c) ofthe Texas Local Government Code.
Respectfully submitted,
OFFICE OF THE CITY ATTORNEY CITY OF DALLAS, TEXAS
WARREN M. S. ERNST City Attorney
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS Page 2 of5 By fu- ~·· CHRISTOPHER C. GUNTER Senior Assistant City Attorney State Bar of Texas No. 24025750 CHRISTOPHER J. CASO Senior Assistant City Attorney State Bar of Texas No. 03969230 Dallas City Hall 1500 Marilla Street, 7BN Dallas, Texas 75201 (214) 670-3519- Voice (214) 670-0622- Fax Christopher. gunter@dallasci tyhall. corn
ATTORNEY FOR PETITIONER CITY OF DALLAS
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing has been served upon all parties in compliance with Rule 2la of the Texas Rules of Civil Procedure on this the 25 1h day of March, 2015.
Highway 205 Farms, LTD., and Maurice E. Moore, Jr Ms. Hayley D. Ailshie- viaE-Service Mr. Eddie Vassallo - via E-Service
Kaufman County Jeffrey Brown- viaE-Service
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS Page 3 of5 EXHIBIT A
TEXAS PROPERTY CODE, CHAPTER 21 SUBCHAPTER E. REPURCHASE OF REAL PROPERTY FROM CONDEMNING ENTITY
Sec. 21.101. RIGHT OF REPURCHASE (a) A person from whom a real property interest is acquired by an entity through eminent domain for a public use, or that person's heirs, successors, or assigns, is entitled to repurchase the property as provided by this subchapter if: ( 1) the public use for which the property was acquired through eminent domain is canceled before the property is used for that public use; (2) no actual progress is made toward the public use for which the property was acquired between the date of acquisition and the 1Oth anniversary of that date; or (3) the property becomes unnecessary for the public use for which the property was acquired, or a substantially similar public use, before the 1Oth anniversary of the date of acquisition. (b) In this section, "actual progress" means the completion of two or more of the following actions: (I) the performance of a significant amount of labor to develop the property or other property acquired for the same public use project for which the property owner's property was acquired; (2) the provision of a significant amount of materials to develop the property or other property acquired for the same public use project for which the property owner's property was acquired; (3) the hiring of and performance of a significant amount of work by an architect, engineer, or surveyor to prepare a plan or plat that includes the property or other property acquired for the same public use project for which the property owner's property was acquired; (4) application for state or federal funds to develop the property or other property acquired for the same public use project for which the property owner's property was acquired; (5) application for a state or federal permit to develop the property or other property acquired for the same public use project for which the property owner's property was acquired; (6) the acquisition of a tract or parcel of real property adjacent to the property for the same public use project for which the owner's property was acquired; or (7) for a governmental entity, the adoption by a majority of the entity's governing body at a public hearing of a development plan for a public use project that indicates that the entity will not complete more than one action described by Subdivisions (1)-(6) before the lOth anniversary of the date of acquisition of the property. (c) A district court may determine all issues in any suit regarding the repurchase of a real property interest acquired through eminent domain by the former property owner or the owner's heirs, successors, or ass1gns.
Sec. 21.102. NOTICE TO PREVIOUS PROPERTY OWNER REQUIRED. Not later than the I 80th day after the date an entity that acquired a real property interest through eminent domain determines that the former property owner is entitled to repurchase the property under Section 21.101, the entity shall send by certified mail, return receipt requested, to the property owner or the owner's heirs, successors, or assigns a notice containing: ( 1) an identification, which is not required to be a legal description, of the property that was acquired; (2) an identification of the public use for which the property had been acquired and a statement that:
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS Page 2 of5 (A) the public use was canceled before the property was used for the public use; (B) no actual progress was made toward the public use; or (C) the property became unnecessary for the public use, or a substantially similar public use, before the 1Oth anniversary of the date of acquisition; and (3) a description of the person's right under this subchapter to repurchase the property.
Sec. 21.1021. REQUESTS FOR INFORMATION REGARDING CONDEMNED PROPERTY. (a) On or after the lOth anniversary of the date on which real property was acquired by an entity through eminent domain, a property owner or the owner's heirs, successors, or assigns may request that the condemning entity make a determination and provide a statement and other relevant information regarding: ( 1) whether the public use for which the property was acquired was canceled before the property was used for the public use; (2) whether any actual progress was made toward the public use between the date of acquisition and the 1Oth anniversary of that date, including an itemized description of the progress made, if applicable; and (3) whether the property became unnecessary for the public use, or a substantially similar public use, before the 1Oth anniversary of the date of acquisition. (b) A request under this section must contain sufficient detail to allow the entity to identify the specific tract of land in relation to which the information is sought. (c) Not later than the 90th day following the date of receipt of the request for information, the entity shall send a written response by certified mail, return receipt requested, to the requestor.
Sec. 21.1022. LIMITATIONS PERIOD FOR REPURCHASE RIGHT. Notwithstanding Section 21.103, the right to repurchase provided by this subchapter is extinguished on the first anniversary of the expiration of the period for an entity to provide notice under Section 21.102 if the entity: ( 1) is required to provide notice under Section 21.1 02; (2) makes a good faith effort to locate and provide notice to each person entitled to notice before the expiration of the deadline for providing notice under that section; and (3) does not receive a response to any notice provided under that section in the period for response prescribed by Section 21.103.
Sec. 21.103. RESALE OF PROPERTY; PRICE. (a) Not later than the 180th day after the date of the postmark on a notice sent under Section 21.102 or a response to a request made under Section 21.1021 that indicates that the property owner, or the owner's heirs, successors, or assigns, is entitled to repurchase the property interest in accordance with Section 21.10 1, the property owner or the owner's heirs, successors, or assigns must notify the entity of the person's intent to repurchase the property interest under this subchapter. (b) As soon as practicable after receipt of a notice of intent to repurchase under Subsection (a), the entity shall offer to sell the property interest to the person for the price paid to the owner by the entity at the time the entity acquired the property through eminent domain. The person's right to repurchase the property expires on the 90th day after the date on which the entity makes the offer.
NOTICE OF DEPOSIT, REPURCHASE DISCLOSURES, APPLICATION FOR WRIT OF POSSESSION, AND INVESTMENT INSTRUCTIONS Page 3 of5 Skip to Main Content Logout My Account Search Menu New Civil Search Refine Search Back Location : All Courts Help
REGISTER OF ACTIONS CASE NO. 84262CC
City of Dallas Vs. Highway 205 Farms, LTD, Maurice Moore, Jr., et al § Case Type: Condemnation § Date Filed: 08/30/2011 § Location: DC County Court at Law § §
P ARTY INFORMATION
Lead Attorneys Defendant Highway 205 Farms, LTD Hayley D Ailshie Retained 2145597200(W)
Defendant Kaufman County
Defendant Moore, Maurice E, Jr. Hayley D Ailshie Retained 2145597200(W)
Defendant Terrell Independent School Disrict
Defendant The Dow Chemical Company
Defendant Trinity Valley Community College District
Plaintiff City of Dallas Christopher C Gunter Retained 2146704288(W)
EVENTS & ORDERS OF THE COURT
OTHER EVENTS AND HEARINGS 08/30/2011 Original Petition (OCA) 08/31/2011 Order Appointing Special Commissioners 10/24/2011 Order
Removing A Special Commissioner and And Appointing A Replacement Lee Schaffer is removed and CON BURT Is Appointed 11/18/2011 Oath of Special Commissioners
DON BURT 11/18/2011 Oath of Special Commissioners
ROBERT REPKA, JR. 11/18/2011 Oath of Special Commissioners
WILLIAM JORDAN 09/26/2012 Notice of Appearance
and Designation of Lead Counsel 03/07/2013 Motion to Dismiss
FOR WANT OF PROSECUTION 03/21/2013 Notice of Hearing 03/27/2013 Notice
of Special Commissioners' Hearing 03/27/2013 Notice
of Special Commissioners' Hearing 03/27/2013 Order
Setting Hearing 03/27/2013 Order
Setting Hearing 04/05/2013 Response
Plf's to Def's Motion to Dismiss for Want of Prosecution 04/15/2013 Response Reply to Plaintiff's Response to Defendants' Motion TO Dimiss For Want of Prosecution
04/17/2013 DWOP (9:00 AM) (Judicial Officer Jones, Dennis P.) 04/17/2013 Notice
of Special Commissioners' Hearing 04/17/2013 Notice
of Special Commissioners' Hearing 04/17/2013 Other
TAB 5 1st amended statement in condemnation 04/17/2013 Order to Dismiss for Want of Prosecution 05/09/2013 Motion for Reinstatement
Plaintiff's 05/09/2013 Order
setting hearing 05/13/2013 Order
Setting Hearing 05/29/2013 CANCELED Motion to Reinstate (9:00 AM) (Judicial Officer Jones, Dennis P.)
Reset 06/12/2013 CANCELED Motion to Reinstate (9:00 AM) (Judicial Officer Jones, Dennis P.)
Reset 06/19/2013 Response
Defendant's Response to Plaintiff's Verified Motion To Reinstate 06/21/2013 Motion to Reinstate (9:00 AM) (Judicial Officer Jones, Dennis P.) 06/21/2013 Order Denying
Plf''s Motion to Reinstate 07/12/2013 Notice of Appeal
accelerated 07/12/2013 Request for Preparation of Reporter's Record 07/12/2013 Request for Preparation of Clerk's Record 07/29/2013 Clerk's Record Sent Electronic 08/27/2013 Motion to Consolidate
City's 08/27/2013 Other
Mandamus Record 07/29/2014 Order
from court of appeals 08/04/2014 Order
to Reinstate Case 12/23/2014 Order
Setting Hearing 12/23/2014 Order
Setting Hearing 01/21/2015 Award of Special Commissioners 01/22/2015 Notice
Offical Notice From Supreme Court of Texas 01/30/2015 Objection
to Award of Special Commissioners Env #3959198 02/10/2015 Waiver
Acceptance of Sercive Env #4083639 03/12/2015 Notice 03/12/2015 Jury Fee Paid (OCA) 03/16/2015 Notice
of Jury Trial 03/18/2015 Letter
to Judge 03/25/2015 Notice
of Deposit of Award 12/07/2015 Jury Trial (8:30 AM) (Judicial Officer Jones, Dennis P.)
F INANCIAL INFORMATION
Attorney Gunter, Christopher C Total Financial Assessment 369.00 Total Payments and Credits 369.00 Balance Due as of 04/03/2015 0.00
08/30/2011 Transaction Assessment 217.00 09/16/2011 Payment Receipt # DC100875 City Of Dallas (217.00) 07/16/2013 Transaction Assessment 112.00 07/17/2013 Transaction Assessment 10.00 07/29/2013 Transaction Assessment 20.00 07/29/2013 Transaction Assessment 10.00 08/20/2013 Payment Receipt # DC112355 City of Dallas (122.00) 08/23/2013 Payment Receipt # DC112428 Bo Moore (30.00)
Plaintiff City of Dallas Total Financial Assessment 30.00 Total Payments and Credits 30.00 Balance Due as of 04/03/2015 0.00
03/12/2015 Transaction Assessment 30.00 03/12/2015 EFile Payment Receipt # DC121049 City of Dallas (30.00)
Related
Cite This Page — Counsel Stack
Highway 205 Farms, Ltd. and Maurice E. Moore, Jr. v. City of Dallas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/highway-205-farms-ltd-and-maurice-e-moore-jr-v-city-of-dallas-texapp-2015.