State v. Bristol Hotel Asset Co.

65 S.W.3d 638, 2001 WL 1512623

• Court: Texas Supreme Court
• Decided: February 14, 2002
• Docket: 00-1146
• Status: Published

Opinions

Justice ENOCH

delivered the opinion of the Court,

in which Chief Justice PHILLIPS, Justice HECHT, Justice OWEN, Justice O’NEILL, and Justice JEFFERSON join.

The issue in this case is whether an executed return of service filed with the special commissioners in administrative condemnation proceedings is evidence that notice of the hearing before the special commissioners was properly served. We conclude that, like a return of service of a citation or a certificate of service in judicial proceedings, a return of service of notice in administrative condemnation proceedings that satisfies the statutory requirements is prima facie evidence of the facts recited therein. Thus, the court of appeals erred in affirming the trial court’s judgment dismissing this case.¹ We therefore reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings consistent with this opinion.

In 1997, the State began condemnation proceedings against Bristol Hotel Asset Company and others, seeking to acquire a ten-foot wide strip of land for a road project. On March 25, 1998, special commissioners appointed by the trial court held a hearing to determine the damages resulting from the condemnation. More than eleven days before the hearing, the commissioners issued notice to each party of the date, time and place for the hearing, as required by the Property Code.² The return of service stated:

The (attached) Notice came to my hand on the 17th day of February, 1998, at 10 o’clock A.M., and I served it at 11:25 o’clock A.M. on the 26th day of February, 1998, at 14295 Midway Rd., Dallas, TX 75244 by delivering a copy of the same, by_to J. Peter Kline, President, Agent for Service for Bristol Hotel Asset Company, Fee Owner, together with a copy of the First Amended Petition attached thereto.

I am a person competent to testify.

The return was signed and sworn to before a notary public by Susan Kelly, a Texas Department of Transportation employee.

Bristol did not appear at the commissioners’ hearing, although Bristol acknowledges being aware of the hearing several days before it took place. After taking evidence, the commissioners awarded Bristol $196,674. Thereafter, Bristol filed objections to the award and a verified plea to the jurisdiction in the trial court. Bristol’s plea to the jurisdiction alleged that it had not been properly served with notice of the commissioners’ hearing, and that the State failed to engage in good faith negotiations.

A hearing on Bristol’s plea to the jurisdiction was set for April 20, 1999. On April 16, the State requested a continuance. After the parties agreed that all discovery responses would be “frozen” and no new witnesses would be designated, the trial court reset the hearing for May 24.

At the hearing, the State offered the executed return of service from the commissioners’ file as proof that Bristol had been properly served with notice of the commissioners’ hearing. The trial court sustained Bristol’s objection to the notice as hearsay. The State then attempted to call Susan Kelly to testify to the facts contained in the return. Bristol objected to Kelly’s testimony because the State had not identified her in its interrogatory answers as a person with relevant knowledge and had agreed not to designate any new witnesses. The trial court again sustained the objection and denied the State’s request for a continuance. Thereafter, the trial court allowed Kelly to testify in an offer of proof, and also allowed the State to introduce the return for bill of review purposes. After hearing testimony from Bristol on its attorneys’ fees, the trial court dismissed the condemnation suit and rendered judgment for Bristol for its attorneys’ fees and costs.

The State appealed, arguing that the trial court abused its discretion by refusing to admit the return as evidence of service, and further erred when it excluded Kelly’s testimony. The court of appeals affirmed the trial court’s judgment, concluding that “[t]he State cannot rely solely on the documentation of return of service to prove service was made ... because such evidence is hearsay when service was executed to provide notice of a commissioner’s hearing.”³ The court of appeals relied on Baird v. Sam Houston Electric Cooperative, Inc,⁴ and Rotello v. Brazos County Water Control & Improvement District No. I5 for the proposition that the presumption of proper service that attaches to a return of service of citation in a judicial proceeding does not attach to a return in the context of service of notice of a commissioners’ hearing.⁶ Rather, the court stated, the condemnor must prove proper service through the testimony of the person effecting service.⁷ Further determining that the trial court did not err when it excluded Kelly’s testimony, the court of appeals affirmed the trial court’s judgment.

We granted the State’s petition for review to determine the requirements for proof of notice in a condemnation proceeding. The State argues that: 1) the return should have been admitted as prima facie evidence that notice was served; 2) the trial court abused its discretion in refusing to admit Kelly’s testimony because Bristol would not have been surprised or prejudiced by that testimony even though the State .had not identified her in its interrogatory answers; and 3) the trial court abused its discretion by dismissing the case without considering the standards for death penalty sanctions set forth in Trans-American Natural Gas Corporation v. Powell.⁸ Because of our resolution of the first issue, we do not reach the other two. Neither the trial court nor the court of appeals addressed the good-faith negotiations issue that Bristol asserted in its plea, and that issue is not before us.

Proceedings to condemn land are special in character, and the party attempting to establish its right to condemn must show strict compliance with the law authorizing private property to be taken for public use.⁹ Currently, that law is set out in Chapter 21 of the Texas Property Code. A condemnation proceeding begins when the condemnor files a petition with the appropriate trial court.¹⁰ After the petition is filed, the trial court appoints three special commissioners to assess the condemnee’s damages.¹¹ The commissioners must schedule a hearing.¹² All parties to the proceeding are entitled to notice of the time and place of the hearing, which must be served not later than eleven days before the hearing date.¹³ Anyone competent to testify may serve notice, and must return the original notice plus a return of service to the commissioners on or before the hearing date.¹⁴ Unless notice has been properly served in accordance with the statute, the commissioners have no jurisdiction to assess damages or do anything that would declare a condemnation of the property.¹⁵

A party may challenge the commissioners’ findings by filing written objections with the trial court.¹⁶ Here, Bristol did so, challenging the commissioners’ jurisdiction on the grounds that Bristol had not been properly notified of the commissioners’ hearing. It is the State’s burden to prove notice in compliance with the statute in order to establish the commissioners’ jurisdiction.¹⁷

The requirement that notice of the commissioners’ hearing be served finds a parallel in ordinary judicial proceedings with the requirement that citation be properly served on the defendant.¹⁸ The person completing service must execute a verified return of service, which must be filed with the court.¹⁹ The return of service in judicial proceedings “has long been considered prima facie evidence of the facts recited therein.”²⁰

Bristol argues, citing the Houston court of appeals’ opinions in Baird and Rotello, that because the commissioners’ proceedings are administrative rather than judicial, and because service of notice of the commissioners’ hearing is not an official duty of the sheriff or constable, the return of service in this case is not entitled to the same weight as a return of service of a citation.²¹ But this distinction is not persuasive. Under our civil procedure rules, a citation need not be served by a sheriff or constable. It can be served by anyone over eighteen whom the court has authorized to do so, as long as the person is not a party and has no interest in the suit’s outcome.²² Thus, a citation is issued by the court and served by someone authorized by the court. Similarly, the commissioners, who are court-appointed, issue the notice of hearing, which by statute may be served by anyone competent to testify.²³ In either circumstance, the effect is exactly the same — service is performed at the state’s direction and with the state’s authorization. Consequently, the return in this case, which was executed by a person competent to testify and sworn to before a notary public, is entitled to be treated the same as a return in a judicial proceeding, at least to the extent of establishing prima facie that service occurred.²⁴ We therefore disapprove of Baird and Rotello to the extent that they hold otherwise.

The only potentially significant distinction between return of a citation and the return in condemnation proceedings is that the former must be verified while the latter need not be.²⁵ In this regard, we note Texas Rule of Civil Procedure 21a, which prescribes the methods for serving all notices and other papers in a judicial proceeding aside from the citation. This Rule specifically permits “a party to the suit, an attorney of record, a sheriff or constable, or ... any other person competent to testify” to effect service.²⁶ A certificate completed by a party or an attorney of record, or an affidavit of any person showing service, “shall be prima facie evidence of the fact of service.”²⁷ Like the Property Code, Rule 21a permits service by any person competent to testify. Also like the Property Code, Rule 21a does not require that a certificate of service be verified. Nonetheless, under the Rule such a certificate provides prima facie evidence of service. We see no meaningful distinction between a certificate of service in a judicial proceeding and the return of notice here, and therefore conclude that both should be entitled to the same weight.

We therefore hold that a return of service of notice of a commissioners hearing that strictly complies with section 21.016 of the Property Code is prima facie evidence that the condemnee has been served with the notice in compliance with the statute. When the State introduces such a return, the condemnee must offer evidence that it was not served to raise a fact issue.

Our opinion in City of Houston v. Kunze does not compel a different result. There, we stated that “recitations contained in the decree of condemnation and other orders” did not prove that the condemnee had been properly served with notice of the commissioners’ hearing.²⁸ In Kunze, the city relied solely on the condemnation award, which stated that notice had been duly served and the condemnee appeared through his attorney, as proof of service.²⁹ The city did not offer an executed, sworn return of service.³⁰ Likewise in Parker v. Fort Worth & Denver City Railway Company we only considered the effect of the declarations contained in the report of the commissioners and in the decree of condemnation.³¹ We therefore have not had the occasion to consider the evidentiary effect of a return of service, nor have we decided what that effect would be. The dissent simply misleads the reader by citing both Kunze and Parker and asserting they hold that the State may not rely on “documents in the court’s file” — a circumstance not considered by the Court.³²

Moreover, Kunze and our holding today are consistent with the rule regarding proof of service in a collateral attack on a default judgment. When a defendant contests a default judgment on the grounds that he was not properly served, recitations in the judgment will not prove service when the record contains no independent evidence of service, such as a return.³³ The return in this case is not simply a recitation in the commissioners’ award. Rather, it is independent evidence of proper service.

Bristol further argues that section 21.016(b)’s requirement that the person who serves notice of the commissioners’ hearing must be competent to testify means the Legislature intended that the only way service could be proved was through that person’s testimony. The State counters that the phrase “competent to testify” defines the class of people who may serve notice, not the manner of proving service. The State analogizes the statute to Texas Rule of Appellate Procedure 52.3, which requires a person “competent to testify” to verify the factual allegations in a petition for an original proceeding,³⁴ noting that the Rule obviously does not contemplate live testimony in such a proceeding. Moreover, the State maintains, if we adopt Bristol’s reading of the statute, condemnees can too easily challenge the commissioners’ jurisdiction every time a person outside the court’s subpoena power serves notice of a commissioners’ hearing. This happens frequently, according to the State, when the State must serve notice on condemnees who live hundreds of miles from the land to be condemned.

We agree with the State that the phrase “competent to testify” in Property Code section 21.016(b) does not mean that service can only be proven by testimony from the person who completed service. Indeed, requiring the person to be “competent to testify” insures that a properly executed return can replace live testimony, for it could not do so if the person completing the return were not competent to testify to the circumstances under which the notice was served. Further, there is no obvious policy reason for requiring live testimony about service in every condemnation proceeding in which service is challenged. Rather, such a requirement could provoke an explosion in such challenges, if for no better reason than that the con-demnee suspects that the condemnor will not be able to produce the person who completed service.

Bristol next argues that the return in this case does not strictly comply with the Property Code, because it contains a blank that was not filled in, and does not clearly state that the notice was hand-delivered. Bristol does not argue that J. Peter Kline, identified in the return as Bristol’s agent for service, was not in fact its agent for that purpose. The State responds that hand-delivery to Mr. Kline can be inferred from the rest of the return’s language. We think it is not necessary to draw inferences from the return. Section 21.016(c) of the statute specifies that the return must state “how and when [the notice] was served.”³⁵ Section 21.016(d) describes how notice may be served. The only method relevant to this case is “by delivering a copy of the notice to the party or to the party’s agent or attorney[.]”³⁶ This is precisely what the return states was done: Susan Kelly delivered a copy of the notice to Mr. Kline as Bristol’s agent for service on February 26, 1998, at 14295 Midway Road, Dallas, Texas, at 11:25 a.m. The return thus comports with the statute, and the trial court should have admitted it as prima facie evidence that the notice had been properly served.

Thus, the State has established prima facie that Bristol was served in compliance with the statute. Bristol must therefore introduce evidence that it was not served in order to create a fact issue. Because the return should have been admitted, the court of appeals erred when it concluded otherwise. We therefore reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings consistent with this opinion.

Justice BAKER filed a dissenting opinion, in which Justice HANKINSON and Justice RODRIGUEZ join.

1 . 30 S.W.3d 418, 420-21.

2 . Tex Prop.Code § 21.016(b).

3 . 30 S.W.3d at 420-21.

4 . 627 S.W.2d 734, 737 (Tex.App.—Houston [1st Dist.] 1981, writ dism’d).

5 . 574 S.W.2d 208, 210-12 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ).

6 . 30 S.W.3d at 420.

7 . Id.

8 . 811 S.W.2d 913 (Tex.1991).

9 . City of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947, 951 (1953); Parker v. Fort Worth & Denver City Ry. Co., 84 Tex. 333, 19 S.W. 518, 519 (1892).

10 . Tex. Prop.Code § 21.012(a).

11 . Id. §21.014.

12 . Id. § 21.015(a).

13 . Id. § 21.016(a), (b).

14 . Id. § 21.016(b), (c).

15 . Kunze, 262 S.W.2d at 951; Parker, 19 S.W. at 519.

16 . Tex Prop.Code § 21.018(a).

17 .See Parker, 19 S.W. at 519.

18 . See Tex.R. Civ. P. 99(c); see also Tex. Civ. Prac. & Rem.Code § 17.027(c).

19 . Tex.R. Civ. P. 107.

20 . Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994).

21 . See Baird, 627 S.W.2d at 737; Rotello, 574 S.W.2d at 211.

22 . Tex.R. Civ. P. 103.

23 . See Tex. Prop.Code § 21.016(b).

24 . See, e.g., Parks v. City of Waco, 274 S.W. 1006, 1008 (Tex.Civ.App.—Waco 1925, no writ).

25 . Compare Tex.R. Civ. P. 107, with Tex. Prop. Code § 21.016(c).

26 . Tex.R. Civ. P. 21a.

²⁷

28 . 262 S.W.2d at 951.

29 . See id. at 949.

30 . Id. at 951.

31 . 19 S.W. at 519.

32 . 65 S.W.3d at 647 (Baker, J., dissenting).

33 . Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934, 934-35 (1935).

34 . Tex.R.App. P. 52.3.

35 . Tex. Prop.Code § 21.016(c).

36 . Id. § 21.016(d)(1).