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Oncor Electric Delivery Co., LLC v. Brockriede

Court of Appeals of Texas, Second District, Fort Worth

December 12, 2013

ONCOR ELECTRIC DELIVERY COMPANY, LLC APPELLANT
v.
CARL H. BROCKRIEDE APPELLEE ONCOR ELECTRIC DELIVERY COMPANY, LLC APPELLANT
v.
BRENDA STONE, AS TRUSTEE OF THE RAMMING LAND TRUST, AND GREG STONE APPELLEES

FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

MEMORANDUM OPINION [1]

TERRIE LIVINGSTON CHIEF JUSTICE

These are consolidated permissive interlocutory appeals arising from eminent domain proceedings. In three issues, Oncor Electric Delivery Company, LLC contends that a trial court properly complies with section 21.049 of the property code by sending notice of a special commissioner's award solely to a party and not the party's attorney, even if the party is represented by counsel and that fact is known to the trial court clerk, and even if the trial court clerk may have relied on a notice of award filed by the condemnor that omits the condemnee's counsel's name and address. Tex. Prop. Code Ann. § 21.049 (West 2000). Because the unambiguous language of the statute requires that the clerk send notice either to a party or that party's counsel, we reverse the trial court's orders and remand the cases for judgments on the special commissioners' awards.

Procedural Background

Oncor filed original petitions for condemnation in both cases seeking to be awarded easements; hearings were set before a panel of special commissioners on June 7, 2012 and June 8, 2012. On June 8, 2012 and June 12, 2012, Oncor filed notices of the special commissioners awards in each case with the trial court. The notices informed the trial court clerk that "the addresses of the parties or their attorney(s) of record . . . are as follows so that notice of the decision can be sent by certified or registered U.S. Mail, return receipt requested." The notices listed the landowners and one lessee[2] by name, but they did not list their counsel of record.[3] Oncor's counsel contends that this omission was an inadvertent error. In contrast, the notices listed Oncor's counsel's name and address rather than Oncor's. In addition, although the notices filed by Oncor contain a certificate of service stating that they were sent to appellees' counsel, appellees' counsel contends that he never received them.

The trial court clerk sent notice of the special commissioners' awards to appellees individually and to counsel for Oncor by certified mail. The clerk did not send notice of the awards to appellees' counsel.[4] Appellees subsequently filed objections to the awards in the trial court.

Oncor filed pleas to the jurisdiction and motions for judgment in both cases, contending that appellees' objections were not timely filed and that the trial court was therefore required to adopt the special commissioners' findings as true. See Tex. Prop. Code Ann. § 21.061 (West 2000); see, e.g., State v. Garland, 963 S.W.2d 95, 97 (Tex. App.––Austin 1998, pet. denied) (op. on reh'g). The trial court denied Oncor's pleas and motions, finding that in each case "notice of the filing of the Commissioners' Award was not properly given under Texas Property Code Sec. 21.049 by the District Clerk and as such the time limitation on filing objections was tolled and [the] objections were timely filed." But the trial court granted Oncor permission to appeal the otherwise interlocutory orders. Oncor filed petitions for permissive appeal in both cases, which this court granted on March 18, 2013.

Applicable Law

In a condemnation action, the landowner is given a single opportunity to recover damages for the taking of his property by the state for the public benefit. John v. State, 826 S.W.2d 138, 140 (Tex. 1992); Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 599 (Tex. 1979). As a result, the procedures set forth in the condemnation statute must be strictly followed and its protections liberally construed for the benefit of the landowner. John, 826 S.W.2d at 140.

Section 21.049 of the property code provides,

The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the special commissioners on the day the decision is filed or on the next working day after the day the decision is filed. Not later than the next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.

Tex. Prop. Code Ann. § 21.049 (emphasis added). This section must be construed as mandatory because it is part of the statutory scheme authorizing eminent domain actions and it is designed to protect the landowner. John, 826 S.W.2d at 140. Therefore, in condemnation cases, the clerk must comply with the notice provisions. Id. The supreme court has held that the language of section 21.049 is clear and unambiguous, and thus it should be enforced as written, giving its terms their usual and ordinary meanings without resorting to the rules of construction. Id.

Filing timely objections to a special commissioners' award invokes the jurisdiction of the trial court and transforms an administrative proceeding into a pending cause. Id. at 141 & n.5. If objections are not filed timely, the trial court can only perform its ministerial function and render judgment based upon the commissioners' award. Id.; see Tex. Prop. Code Ann. § 21.061. But if the trial court clerk did not send notice in accordance with section 21.049, the time to object is tolled until the clerk complies. John, 826 S.W.2d at ...


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