AFFIRM; Opinion issued November 29, 2012
In The
fth iti tritt of at aIla No. 05-12-00368-CV
W. A. MCKINNEY, Appellant
V.
CITY OF CEDAR HILL, TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. cc-09-09303-B
MEMORANDUM OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice FitzGerald
This is a condemnation case. Defendant W. A. McKirmey did not appear at trial, and the trial
judge rendered judgment dismissing the case and adopting the special cornrmssioners’ report and
award as the judgment of the court. McKinney appeals. In three issues, he complains of the trial
judge’s denial of his motion for continuance and argues that trial court lacked jurisdiction. We
I. BACKGROUND
The City of Cedar Hill, Texas, filed an original petition for condemnation seeking to take two
lots owned by McKinney. Special commissioners were appointed and. after a hearing at which both
parties appeared, made an award of $233,500. McKinney filed an objection to the commissioners’ The matter was set for trial on January 11. 2011. On McKinney’s motion for continuance,
the case was reset for July 18,2011. McKinney filed a second motion for continuance, and the c~e
was continued until December 5, 2011. In November 2011, someone named Roy Garland Boles
filed a verified pro se motion for continuance on McKinney’s behalf. Boles averred that he had
powe~ of attorney to represent McKirmey in the matter. He also averred that McKinney’s attorney
was overworked and could not timely deal with the case, requiring McKinney to find another
attorney. A few days later, McKinney’s attorney filed a motion for leave to withdraw as counsel
based on McKinney’s disagreement with the attorney’s handling of the case.
The case was called for trial on December 5,2011. Boles appeared, but McKinney did not.
After brief testimony from Boles and from McKinney’s attorney, the trial judge orally granted the
attorney’s motion to withdraw. The judge explained that Boles could not file a motion for
continuance on McKinney’s behaffand could not represent McKinney at trial because Boles was not
an attorney. After verifying that McKinney was not present, the trial judge signed the final judgment
dismissing the case and adopting the special commissioners’ award as the judgment of the court.
McKinney appealed pro se.
II. ANALYSIS
McKinney raises three issues on appeal. In his first issue, he argues that the trial judge erred
by denying his third motion for continuance. In his second and third issues, he argues that the trim
court lacked jurisdiction to adjudicate .the case based on certain alleged violations of the Texas
Property Code. For the following reasons, we conclude his issues are without merit.
A. Continuance
We review the denial of a motion for continuance for an abuse of discretion. In re £P., 365
-2- S.W.3d 833, 836 (Tex. App.--Dallas 2012, no pet.). Absence of counsel alone is not good cause
for a continuance. See TEX. R. Cir. P. 253. In civil cases, a party relying on the absence of counsel
as the ground for a continuance must show that his failure to be represented by counsel was not the
result of his own fault or negligence. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State
v. Crank, 666 S.W.2d 91.94 (Tex. 1984); J.P., 365 S.W.3d at 836.
On this record, the trial judge did not act unreasonably or arbitrarily by denying McKinney’s
motion for continuance. McKinney’s third motion for continuance, signed by someone who was not
an attorney, contained only an averment that McKinney’s counsel was "over worked and cannot
timely deal with this case[,] mandating that another attorney be located to assist and represent
[’McKinney]." McKinney did not appear at trial, but Boles, who claimed to have power of attorney
for McKinney, appeared and confLrmed that he wanted to fire McKinney’s attorney even after the
trial judge informed Boles that he could not represent McKinney in court. No evidence was
presented at the time of trial to show that McKinney was not negligent or at fault for being without
an attorney at that time. The trial judge could reasonably conclude that McKinney had failed to
prove that his lack of counsel was not the result of McKinney’s own fault or negligence.
Accordingly, the trial judge did not abuse his discretion by denying McKinney’s motion for
continuance. See J.P., 365 S.W.3d at 836-37 (trial judge did not abuse discretion by denying
continuance when movant had fired his attorney one month before trial); LaChance v. Hollenbeck,
695 S.W.2d 618,620 (Tex. App.--Austin 1985, writ ref’d n.r.e.) (trial judge did not abuse discretion
by denying continuance when movant had fired his attorney four days before trial).
B. Jurisdiction
McKinney’s second issue on appeal is not entirely clear. In his statement of the issue,
McKinney asserts that the trial court lacked jurisdiction because the C!ty failed to comply with
-3- section 21.0113 of the properly code. In the body of his argtunent, he complains that the City’s
petition did not comply with section 21.0113, but he quotes section 21.012(a) and section
21.012(b)(6) in support. In any event, his issue ~s without merit. Section 21.0113 requires an entity
with eminent-domain authority that desires to acquire real property for a public use to make a bona
fide offer to the property owner. TEX. PROP. CODE ANN. § 21.0113(a) (West Supp. 2012). But this
case was filed on December 9, 2009, and section 21.0113 applies only to condemnation proceedings
filed on or after September 1,2011. See id. historical note [Act of May 5, 2011, 82nd Leg., R.S.,
ch. 81, § 24, 2011 Tex. Sess. Law Serv. 354, 364 (West)]. Section 21.012(19)(6) also applies only
to condemnation proceedings filed on or after September 1,2011. See TEX. PROP. CODE ANN.
§ 21.012 historical note (West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011
Tex. Sess. Law Serv. 354, 364 (West)]. Although section 21.012(a) existed prior to the filing of this
lawsuit, it provided in pertment part only that condemnation proceedings are commenced by the
filing of a petition in the proper court. See TEX. PROP. CODE ANN. § 21.012(a) & historical note
(West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011 Tex. Sess. Law Serv.
354, 364 (West)]. The City filed a petition for condemnation at the commencement of this case, and
McKinney has not shown any noncompliance with section 21.012(a).
McKinney’s third issue suffers from the same flaw as his second issue. In his third issue, he
argues that the trial court lacked jurisdiction because it failed to allow him to strike one of the special
commissioners as authorized by section 21.014 of the property code. The provision allowing parties
to strike a commissioner applies only to condemnation proceedings filed on or after September 1,
2011. See TEX. PROP. CODE ANN. § 21.014(a) & historical note (West Supp. 2012) [Act of May 5,
2011,82nd Leg., R.S., ch. 81, § 24,2011 Tex. Sess. Law Serv. 354, 364 (West)]. Thus, McKinney’s
third issue is without merit. III.
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AFFIRM; Opinion issued November 29, 2012
In The
fth iti tritt of at aIla No. 05-12-00368-CV
W. A. MCKINNEY, Appellant
V.
CITY OF CEDAR HILL, TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. cc-09-09303-B
MEMORANDUM OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice FitzGerald
This is a condemnation case. Defendant W. A. McKirmey did not appear at trial, and the trial
judge rendered judgment dismissing the case and adopting the special cornrmssioners’ report and
award as the judgment of the court. McKinney appeals. In three issues, he complains of the trial
judge’s denial of his motion for continuance and argues that trial court lacked jurisdiction. We
I. BACKGROUND
The City of Cedar Hill, Texas, filed an original petition for condemnation seeking to take two
lots owned by McKinney. Special commissioners were appointed and. after a hearing at which both
parties appeared, made an award of $233,500. McKinney filed an objection to the commissioners’ The matter was set for trial on January 11. 2011. On McKinney’s motion for continuance,
the case was reset for July 18,2011. McKinney filed a second motion for continuance, and the c~e
was continued until December 5, 2011. In November 2011, someone named Roy Garland Boles
filed a verified pro se motion for continuance on McKinney’s behalf. Boles averred that he had
powe~ of attorney to represent McKirmey in the matter. He also averred that McKinney’s attorney
was overworked and could not timely deal with the case, requiring McKinney to find another
attorney. A few days later, McKinney’s attorney filed a motion for leave to withdraw as counsel
based on McKinney’s disagreement with the attorney’s handling of the case.
The case was called for trial on December 5,2011. Boles appeared, but McKinney did not.
After brief testimony from Boles and from McKinney’s attorney, the trial judge orally granted the
attorney’s motion to withdraw. The judge explained that Boles could not file a motion for
continuance on McKinney’s behaffand could not represent McKinney at trial because Boles was not
an attorney. After verifying that McKinney was not present, the trial judge signed the final judgment
dismissing the case and adopting the special commissioners’ award as the judgment of the court.
McKinney appealed pro se.
II. ANALYSIS
McKinney raises three issues on appeal. In his first issue, he argues that the trial judge erred
by denying his third motion for continuance. In his second and third issues, he argues that the trim
court lacked jurisdiction to adjudicate .the case based on certain alleged violations of the Texas
Property Code. For the following reasons, we conclude his issues are without merit.
A. Continuance
We review the denial of a motion for continuance for an abuse of discretion. In re £P., 365
-2- S.W.3d 833, 836 (Tex. App.--Dallas 2012, no pet.). Absence of counsel alone is not good cause
for a continuance. See TEX. R. Cir. P. 253. In civil cases, a party relying on the absence of counsel
as the ground for a continuance must show that his failure to be represented by counsel was not the
result of his own fault or negligence. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); State
v. Crank, 666 S.W.2d 91.94 (Tex. 1984); J.P., 365 S.W.3d at 836.
On this record, the trial judge did not act unreasonably or arbitrarily by denying McKinney’s
motion for continuance. McKinney’s third motion for continuance, signed by someone who was not
an attorney, contained only an averment that McKinney’s counsel was "over worked and cannot
timely deal with this case[,] mandating that another attorney be located to assist and represent
[’McKinney]." McKinney did not appear at trial, but Boles, who claimed to have power of attorney
for McKinney, appeared and confLrmed that he wanted to fire McKinney’s attorney even after the
trial judge informed Boles that he could not represent McKinney in court. No evidence was
presented at the time of trial to show that McKinney was not negligent or at fault for being without
an attorney at that time. The trial judge could reasonably conclude that McKinney had failed to
prove that his lack of counsel was not the result of McKinney’s own fault or negligence.
Accordingly, the trial judge did not abuse his discretion by denying McKinney’s motion for
continuance. See J.P., 365 S.W.3d at 836-37 (trial judge did not abuse discretion by denying
continuance when movant had fired his attorney one month before trial); LaChance v. Hollenbeck,
695 S.W.2d 618,620 (Tex. App.--Austin 1985, writ ref’d n.r.e.) (trial judge did not abuse discretion
by denying continuance when movant had fired his attorney four days before trial).
B. Jurisdiction
McKinney’s second issue on appeal is not entirely clear. In his statement of the issue,
McKinney asserts that the trial court lacked jurisdiction because the C!ty failed to comply with
-3- section 21.0113 of the properly code. In the body of his argtunent, he complains that the City’s
petition did not comply with section 21.0113, but he quotes section 21.012(a) and section
21.012(b)(6) in support. In any event, his issue ~s without merit. Section 21.0113 requires an entity
with eminent-domain authority that desires to acquire real property for a public use to make a bona
fide offer to the property owner. TEX. PROP. CODE ANN. § 21.0113(a) (West Supp. 2012). But this
case was filed on December 9, 2009, and section 21.0113 applies only to condemnation proceedings
filed on or after September 1,2011. See id. historical note [Act of May 5, 2011, 82nd Leg., R.S.,
ch. 81, § 24, 2011 Tex. Sess. Law Serv. 354, 364 (West)]. Section 21.012(19)(6) also applies only
to condemnation proceedings filed on or after September 1,2011. See TEX. PROP. CODE ANN.
§ 21.012 historical note (West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011
Tex. Sess. Law Serv. 354, 364 (West)]. Although section 21.012(a) existed prior to the filing of this
lawsuit, it provided in pertment part only that condemnation proceedings are commenced by the
filing of a petition in the proper court. See TEX. PROP. CODE ANN. § 21.012(a) & historical note
(West Supp. 2012) [Act of May 5,2011, 82nd Leg., R.S., ch. 81, § 24, 2011 Tex. Sess. Law Serv.
354, 364 (West)]. The City filed a petition for condemnation at the commencement of this case, and
McKinney has not shown any noncompliance with section 21.012(a).
McKinney’s third issue suffers from the same flaw as his second issue. In his third issue, he
argues that the trial court lacked jurisdiction because it failed to allow him to strike one of the special
commissioners as authorized by section 21.014 of the property code. The provision allowing parties
to strike a commissioner applies only to condemnation proceedings filed on or after September 1,
2011. See TEX. PROP. CODE ANN. § 21.014(a) & historical note (West Supp. 2012) [Act of May 5,
2011,82nd Leg., R.S., ch. 81, § 24,2011 Tex. Sess. Law Serv. 354, 364 (West)]. Thus, McKinney’s
third issue is without merit. III. DISPOSITION
For the foregoing reasons, affirm the trial court’s judgment.
120368F.P05
-5- ourt
JUDGMENT
W. A. MCKINNEY, Appellant Appeal from the County Court at Law No. 2 of Dallas County, Texas. (Tr.Ct.No. cc-09- No. 05-12-00368-CV 09303-B). Opinion delivered by Justice FitzGerald, CITY OF CEDAR HILL, TEXAS, Appellee Justices O’Neill and Lang-Miers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court Is AFFIRMED. It is ORDERED that appellee City of Cedar Hill, Texas recover its costs of this appeal from appellant W. A. McKinney.
Judgment entered November 29, 2012.