      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00326-CV



                     Charles C. Laidley and Dorothy Laidley, Appellants

                                                 v.

                              City of San Marcos, Texas, Appellee


              FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
             NO. 11476-C, HONORABLE ANNA M. BOLING, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This condemnation case addresses a trial court’s discretion to dismiss a condemnee’s

objections to an award by special commissioners for want of prosecution and to reinstate the special

commissioners’ award. See Denton County v. Brammer, 361 S.W.2d 198, 200-01 (Tex. 1962); see

also Tex. Prop. Code Ann. § 21.018 (West 2003).

               Appellants Charles C. Laidley and Dorothy Laidley, as condemnees, filed objections

to a special commissioners’ award but did not cause citation to be issued and served on appellee the

City of San Marcos for approximately 16 months. Shortly after being served with the citation, the

City moved to dismiss appellants’ objections and reinstate the award on the ground that appellants

did not cause citation to be issued and served within a reasonable time. After a hearing, the trial

court granted the City’s motion and rendered judgment dismissing appellants’ objections for want
of prosecution and reinstating the special commissioners’ award. For the reasons that follow, we

affirm the trial court’s judgment.


                                          BACKGROUND

Condemnation Procedure

                Procedure in condemnation cases is governed by chapter 21, subchapter B, of the

property code.    See Tex. Prop. Code Ann. §§ 21.011-.024 (West 2003 & Supp. 2010).

Condemnation cases begin with an administrative proceeding and, if necessary, the administrative

proceeding is followed by a judicial one. See City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex.

2006) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex. 1985)).

“Condemnation proceedings are administrative in nature ‘from the time the condemnor files the

original statement seeking condemnation up to the time of the Special Commissioners’ award.’” Id.

                A party to a condemnation proceeding may object to the findings of the special

commissioners by timely filing a written statement of the objections and their grounds with the court

that has jurisdiction of the proceeding. See Tex. Prop. Code Ann. § 21.018(a) (West 2003). “Upon

the filing of objections, the [special commissioners’] award is vacated and the administrative

proceeding converts to a judicial proceeding.” Beck, 196 S.W.3d at 786 (citing Brammer,

361 S.W.2d at 200). Although the property code specifies that, when objections are filed, that “the

court shall cite the adverse party,” the Texas Supreme Court has “clarified that it is incumbent on

the objecting party to serve the adverse party with citation of the objections.” See id. (citing Amason,

682 S.W.2d at 242); Tex. Prop. Code Ann. § 21.018(b) (West 2003).




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               After the administrative proceeding converts to a judicial one, the case is tried in the

“same manner as other civil cases.” See Tex. Prop. Code Ann. § 21.018(b). The trial is

conducted de novo, and the special commissioners’ award is inadmissible at the trial. In re State,

85 S.W.3d 871, 876 (Tex. App.—Tyler 2002, orig. proceeding) (op. on reh’g); see also In re State,

325 S.W.3d 848, 850-51 (Tex. App.—Austin 2010, orig. proceeding) (generally discussing

converting administrative proceeding to “normal case” after objections are filed in condemnation

case). However, if the objecting party fails to serve the adverse party with citation within a

reasonable time, “the trial court should dismiss the objections for want of prosecution and reinstate

the special commissioners’ award.” See Beck, 196 S.W.3d at 786 (citing Amason, 682 S.W.2d at

242). The objecting party “must act with reasonable diligence,” or the party will be presumed to

have abandoned the objections. Brammer, 361 S.W.2d at 201. With this background, we turn to the

parties’ dispute.


The Parties’ Dispute

               In November 2007, the City of San Marcos filed a petition for condemnation, seeking

to condemn certain interests of Charles Christopher Laidley, Gina S. Laidley, Frost National Bank,

a lienholder, and appellants in real property.1 The matter was submitted to special commissioners

in April 2008. After a hearing, the special commissioners filed their award with the trial court.

Appellants thereafter filed objections to the award, contending that the award was insufficient and

that the measure of damages employed by the special commissioners was legally erroneous.


       1
         Charles Christopher Laidley is the son and Gina S. Laidley the daughter-in-law of
appellants.

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                Although appellants’ counsel certified that he served a copy of the objections on

counsel for the City by certified mail contemporaneously with filing the objections, appellants did

not serve the City with citation until August 2009. See Tex. Civ. Prac. & Rem. Code Ann.

§ 17.024(b) (West 2008) (“In a suit against an incorporated city, town, or village, citation may be

served on the mayor, clerk, secretary, or treasurer.”). On September 3, 2009, the City filed a motion

to dismiss appellants’ objections for want of prosecution and to reinstate the special commissioners’

award. The City urged that appellants had failed to secure service of citation within a reasonable

time and, therefore, that it was the trial court’s duty to dismiss the objections and reinstate the award.

                Appellants did not file a written response to City’s motion, but their counsel testified

at a hearing on the City’s motion. He testified concerning his serious health problems during the

time period between filing appellants’ objections and serving the City with citation. He testified that,

during that time period, he was hospitalized for extended periods and that he “was without capacity

to do much about [this case]” and “[had] done the best that [he] could.” He also testified to an

attempt at service in April 2009. After the hearing, the trial court granted the City’s motion, signing

a final judgment dismissing the objections for want of prosecution and reinstating the special

commissioners’ award. This appeal followed.


                                              ANALYSIS

                Appellants raise two issues on appeal. They contend that: (i) the trial court erred in

dismissing their objections to the special commissioners’ award for want of prosecution at a point

in time when the City had generally appeared and been served with citation, and (ii) that the trial




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court erred by dismissing their objections without hearing or taking into account the extenuating

circumstances of their counsel’s health problems.

               We review a trial court’s ruling on a motion to dismiss objections to a special

commissioners’ award under an abuse of discretion standard. See Brammer, 361 S.W.2d at 200.

A trial court abuses its discretion when it acts unreasonably or in an arbitrary manner or

without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). “The mere fact that a trial judge may decide a matter within

his discretionary authority in a different manner than an appellate judge in a similar circumstance

does not demonstrate that an abuse of discretion has occurred.” Id. at 242.

               In their first issue, appellants contend that the trial court erred in dismissing their

objections for want of prosecution because the City had generally appeared and/or been formally

served with citation of appellants’ objections. They urge that once the City generally appeared or

was served, it was the City’s burden to go forward with the case, precluding the dismissal of their

objections for want of prosecution. Although a condemnor has the burden of going forward once

objections are filed to an award, “it [is] under no legal obligation to do so unless and until it [is]

served with citation.” Brammer, 361 S.W.2d at 200; see also Beck, 196 S.W.3d at 786-87 (“The

service requirement affords a means for the court to acquire jurisdiction over the party to be

served.”). A condemnor, however, may waive service of the objections to a special commissioners’

award by generally appearing. See Seals v. Upper Trinity Reg’l Water Dist., 145 S.W.3d 291, 296

(Tex. App.—Fort Worth 2004, pet. dism’d) (service rendered unnecessary by condemnor’s




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participation in proceeding). The initial issue then is whether the City generally appeared and,

thereby, waived service of citation.

               Appellants contend that the City generally appeared in May 2009 by moving to

dismiss Charles Christopher Laidley and Gina S. Laidley and settling with them. The record shows

that the City, Charles Christopher Laidley, and Gina S. Laidley filed a joint motion for nonsuit and

dismissal of all claims as to Charles Christopher Laidley and Gina S. Laidley. The trial court granted

this motion, signing an agreed order. In order to waive service by voluntary appearance, however,

a filing must seek a judgment or adjudication on some question. Id. at 295. In the context of the

ongoing condemnation proceeding, the joint motion to nonsuit and dismiss claims as to parties other

than appellants did not seek either a judgment or adjudication on a question concerning the

objections. See id.; Skaggs v. City of Keller, 880 S.W.2d 264, 266 (Tex. App.—Fort Worth 1994,

writ denied) (city’s filing of notice of deposit and depositing funds with court was not “appearance”

in condemnation proceeding for all purposes and did not waive citation of objections to award); see

also Tex. R. Civ. P. 162 (effect of dismissal or nonsuit on pending claims generally). We conclude

then that the City did not generally appear and, thereby, waive service of citation as to appellants’

objections by jointly filing the motion to nonsuit and dismiss claims as to parties other

than appellants.

               Appellants also contend that once the City was served with citation in August 2009,

that the trial court no longer had discretion to dismiss their objections or reinstate the special

commissioners’ award. In essence, appellants argue that, once citation was served on the City, the

trial court was without discretion to reinstate the special commissioners’ award whether or not



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appellants acted with “reasonable diligence” in serving the City with citation. See Brammer,

361 S.W.2d at 201. To support this contention, appellants quote a sentence in State v. Carlton, as

well as similar statements in other cases, that “once objections are filed and citation is served on the

condemnor, ‘the Special Commissioners’ award cannot be reinstated.” See 901 S.W.2d 736, 738

(Tex. App.—Austin 1995, no writ).

                In Carlton, the issue on appeal was whether the condemnee could withdraw his

objections and unilaterally cause the special commissioners’ award to be reinstated after several

years of “extensive discovery and eleven days before trial.” Id. at 737. This Court held that he could

not, stating that, after service of citation, the state was “entitled to rely on the objections as placing

in issue the subject of the objections without filing objections of its own.” Id. at 740. In contrast,

the City here does not seek to rely on the objections and filed its motion to dismiss shortly after being

served with citation. The timeliness of service of citation also was not at issue in Carlton: the

condemnee filed his objections to the special commissioners’ award and caused citation to be served

on the state on the same day. Id. at 737. Viewed in context then, the quoted sentence in Carlton

does not limit a trial court’s discretion—upon a finding that the condemnee did not act with

“reasonable diligence” in serving the citation—to dismiss a condemnee’s objections for want of

prosecution. See Brammer, 361 S.W.2d at 201.

                Similar to the quoted sentence in Carlton, the supreme court in Amason stated that

a special commissioners’ award could not be reinstated “[o]nce the service of citation on the

condemnor is accomplished.” See 682 S.W.2d at 242. The issue before the supreme court, however,

also did not concern whether the objecting party had failed to serve citation within a reasonable



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amount of time. In that case, the condemnor waived service of citation, and the issue was whether

the cause could be reinstated on the docket after the trial court dismissed the cause for want of

prosecution almost a year after service was accomplished. Id. at 243. The supreme court held that

the trial court properly dismissed the cause for want of prosecution but that the special

commissioners’ award should not have been reinstated because the condemnor bore the burden of

going forward with the case after it was served with citation. Id.; see also Musquiz v. Harris County

Flood Control, 31 S.W.3d 664, 667 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (distinguishing

between dismissing landowner’s objections to special commissioners’ award for want of prosecution

and dismissing condemnor’s cause of action for want of prosecution and stating that “[w]hen the

landowner does not secure service on the condemnor within a reasonable period of time, the trial

court should consider the objection abandoned and dismiss the ‘objection’ for want of prosecution”).

               Appellants have failed to cite authority, and we have found none, that would support

limiting the trial court’s discretion based upon the fact that the City was served with citation prior

to the City’s filing of the motion to dismiss. Appellants did not serve the City with citation for over

a year, the City did not have the burden of taking action prior to being served with citation, and the

first action taken by the City after being served was to promptly file its motion to dismiss. See

Brammer, 361 S.W.2d at 200. On this record, we cannot conclude that the trial court abused its

discretion by granting the motion to dismiss appellants’ objections to the special commissioners’

award even though the City at that point had been served with citation. We overrule appellants’

first issue.




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               In their second issue, appellants contend that the trial court erred by dismissing their

objections without hearing or taking into account the extenuating circumstances of their counsel’s

health problems. Appellants urge that this is particularly so because the City had actual notice of

their objections when they were filed and did not suffer any prejudice by virtue of the delay in formal

service. The record, however, shows that the trial court received evidence concerning the health

problems of appellants’ counsel before ruling on the City’s motion. Appellants’ counsel testified

at the hearing on the City’s motion as to his health problems, including that he had been hospitalized

for extended time periods between filing the objections and serving the City with citation and that,

during that time period, he “was without capacity to do much about [this case]” and “[had] done the

best that [he] could.” The trial court then did hear and consider evidence of the health problems of

appellants’ counsel before ruling on the motion.

               Further, in the context of a civil suit, when a defendant complains of lack of diligence

in service of citation, a plaintiff “must explain what steps he took to obtain service, not explain why

he did nothing.” Slagle v. Prickett, No. 08-09-00211-CV, 2011 Tex. App. LEXIS 5302, at

*10-11 (Tex. App.—El Paso July 13, 2011, no pet. h.); see Rodriguez v. Tinsman & Houser, Inc.,

13 S.W.3d 47, 49-51 (Tex. App.—San Antonio 1999, pet. denied) (when proffered excuse does not

involve diligence in attempting to effectuate service, explanation not valid); Weaver v. E-Z Mart

Stores, Inc., 942 S.W.2d 167, 169-70 (Tex. App.—Texarkana 1997, no writ) (“An excuse of

diligence must involve diligence to seek service of process.”). Moreover, a party generally may not

rely upon the failure of its chosen counsel as an excuse for lack of diligence to secure service. See

Weaver, 942 S.W.2d at 170 (party “cannot rely upon any failure on the part of [his] chosen attorney



                                                   9
as diligence or an excuse for lack of diligence, because the acts of one’s attorney is imputed to

the client”).

                As to counsel’s attempt to secure service on the City prior to August 2009, he testified

that he “presented a check for $70” in April 2009 to obtain service but that “a lawyer . . . said that

it couldn’t be served unless it had a cover letter requesting service” and that “[a]s soon as [counsel]

could do so, [he] got [his] daughter to type up the letters—the letters that [the lawyer] seemed to

want, paid about $270—$280 and got service upon the requisite parties.”2 The trial court reasonably

could have found that counsel’s offered explanation of one attempted service prior to actual service

in August 2009 did not support a finding that appellants acted with “reasonable diligence” in serving

the City with citation and, therefore, that appellants had abandoned their objections to the special

commissioners’ award. See Brammer, 361 S.W.2d at 200. We overrule appellants’ second issue.


                                          CONCLUSION

                Because we conclude that the trial court acted within its discretion by dismissing

appellants’ objections for want of prosecution and reinstating the special commissioners’ award, we

affirm the trial court’s judgment.




        2
         The trial court sustained an objection to a portion of this testimony on the basis of hearsay.
See Tex. R. Evid. 801, 802.

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                                   __________________________________________

                                   Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: September 21, 2011




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