                                                                                      ACCEPTED
                                                                                 01-14-00899-cv
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             3/9/2015 3:56:45 PM
                                                                            CHRISTOPHER PRINE
                                                                                          CLERK
                ____________________________________
                     NO. 01-14-00899-CV
                ____________________________________    FILED IN
                                                 1st COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
                FIRST JUDICIAL DISTRICT OF TEXAS 3/9/2015 3:56:45 PM
                                                 CHRISTOPHER A. PRINE
                          AT HOUSTON                     Clerk
                ____________________________________
                          THE STATE OF TEXAS,

                                         APPELLANT

                                  VS.

                     TITAN LAND DEVELOPMENT, INC.
                      AND BAUER-HOCKLEY 550, LP,

                                      APPELLEES.
                ____________________________________
                    On Interlocutory Appeal from the
                  County Civil Court at Law No. 4, Texas
                           Cause No. 1042641
                     (Judge Roberta Lloyd, Presiding)
                ____________________________________

                   INITIAL BRIEF OF APPELLEES
                ____________________________________
                                        MCFARLAND PLLC
                                        Charles B. McFarland
                                        State Bar No. 00794269
                                        712 Main Street, Suite 1500
                                        Houston, Texas 77002-3207
                                        Tel 713. 325. 9701
                                        Fax 844. 270. 5032
                                        cmcfarland@mcfarlandpllc.com

                                        ATTORNEYS FOR APPELLEES,
                                        Titan Land Development, Inc. and
                                        Bauer-Hockley 550, LP

March 9, 2015                           ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS


TABLE OF CONTENTS .............................................................................................i
INDEX OF AUTHORITIES........................................................................................ii
REQUEST FOR ORAL ARGUMENT ....................................................................... iv
RECORD REFERENCES ...........................................................................................iv
STATEMENT OF THE CASE ....................................................................................v
ISSUES PRESENTED.................................................................................................vi
STATEMENT OF FACTS ..........................................................................................1
SUMMARY OF ARGUMENT ...................................................................................2
ARGUMENT ...............................................................................................................3
I.       THE TRIAL COURT DID NOT ERR IN DETERMINING THAT THE STATE
         COULD NOT ENLARGE THE PERIOD FOR FILING OBJECTIONS BY
         DELAYING FILING THE AWARD ITH THE COURT. ............................................... 3
         A.       Section 21.048 Of The Texas Property Code Is Mandatory And
                  Required The Award To Be Filed Within A Day Of The
                  Decision. ..................................................................................................3
         B.       The Trial Court Lacked Jurisdiction To Compel The Filing Of
                  The Award. ..............................................................................................3
         C.       The Statutory Framework Does Not Require Section 21.018 Of
                  The Texas Property Code To Trump Section 21.048. ............................ 6
         D.       The Deadline For Filing Objections To The Award Was Not
                  Tolled.......................................................................................................8
PRAYER ......................................................................................................................10
CERTIFICATE OF SERVICE ....................................................................................11
CERTIFICATE OF COMPLIANCE ........................................................................... 12




                                                             i
                                  INDEX OF AUTHORITIES


                                                                                                   Page(s)
Cases
Amason v. Natural Gas Pipeline Co.
     682 S.W.2d 240 (Tex. 1985) ...........................................................................5

Bailey v. Gardner
      154 S.W.3d 917 (Tex. App.—Dallas 2005, no pet.) .....................................10

Bilinsco Inc. v. Harris Cnty. Appraisal Dist.
       321 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 2010, no pet.).................10

Blasingame v. Krueger
      800 S.W.2d 391 (Tex. App.—Houston [14th Dist.] 1990, no writ)............4, 6

City of Carrollton v. OHBA Corp.
       809 S.W.2d 587 (Tex. App.—Dallas 1991, no writ).......................................5

Coastal Indust. Water Auth. v. Celanese Corp. of Am.
     592 S.W.2d 597 (Tex. 1979) ...........................................................................7

Dickey v. City of Houston
      501 S.W.2d 293 (Tex. 1973) ...........................................................................5

Gulf Energy Pipeline Co. v. Garcia
      884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig. proceeding) ..........6, 7

Hand v. Stevens Transp., Inc. Employee Benefit Plan
     83 S.W.3d 286 (Tex. App.—Dallas 2002, no pet.) .......................................10

In re State
       325 S.W.3d 848 (Tex. App.—Austin 2010, no pet.).......................................7

Irwin v. Dep’t of Veterans Affairs
      498 U.S. 89, 111 S. Ct. 453, 112 L. Ed.2d 435 (1990) .................................10




                                                     ii
John v. State
      826 S.W.2d 138 (Tex. 1992) ........................................................ 4, 7, 8, 9, 10

Lehman v. United States
     154 F.3d 1010 (9th Cir.1998) ........................................................................10

Oncor Elec. Delivery Co. LLC v. Schunke
     No. 04-13-00067-CV, 2013 WL 6672494
     (Tex. App.—San Antonio 2013, pet. dism’d) .................................................9

Pearson v. State
     159 Tex. 66, 315 S.W.2d 935 (1958) ..............................................................4

Rose v. State
      497 S.W.2d 444 (Tex. 1973) ...........................................................................5

State v. Garland
       963 S.W.2d 95 (Tex. App.—Austin 1998, pet. denied) ......................... 3, 4, 6

State v. Giles
       368 S.W.2d 943 (Tex. 1963) ...........................................................................5

State v. Jackson
       388 S.W.2d 924 (Tex. 1965) ...........................................................................5
Statutes
TEX. GOV'T CODE §311.014 ...................................................................................v, 2

TEX. PROP. CODE §21.003 ..........................................................................................5

TEX. PROP. CODE §21.018 ..................................................................... v, 2, 4, 6, 7, 8

TEX. PROP. CODE §21.048 ......................................................... v, 1, 2, 3, 4, 6, 7, 8, 9

TEX. PROP. CODE §21.049 ............................................................................. 6, 7, 8, 9

TEX. PROP. CODE §21.061 ..........................................................................................2
Rules
TEX. R. APP. P. 9.4(i)................................................................................................12


                                                          iii
                     REQUEST FOR ORAL ARGUMENT
      Appellees, Titan Land Development, Inc. and Bauer-Hockley 550, LP,

respectfully request the opportunity to present oral argument in connection with

this appeal.

                           RECORD REFERENCES
      In this Brief, the following record citation forms will be used:

      Clerk’s Record (276 pages)              CR [page]




                                         iv
                       STATEMENT OF THE CASE
Nature of Case:   Appellant, the State of Texas (the “State”), filed a statutory
                  condemnation against Appellees, Titan Land Development, Inc.
                  and Bauer-Hockley 550, LP (the “Landowners”), for the
                  acquisition of 85.02 acres of land for the State’s Grand Parkway
                  (State Highway 99) project in Harris County, Texas. CR 5-29.

Course of         The hearing before special commissioners took place on May 1,
Proceedings:      2014. On May 1, 2014, the special commissioners made a
                  written statement of their decision stating the damages (the
                  “award”) pursuant to Section 21.048 of the Texas Property Code
                  and provided the award to the State’s attorney to be filed with
                  the trial court. The State delayed until May 7, 2014 before filing
                  the award with the trial court. CR 42, 43. The State was required
                  to file its objections on or before Tuesday, May 27, 2014
                  pursuant to Section 21.018(a) of the Texas Property Code and
                  Section 311.014(b) of the Texas Government Code. The State
                  delayed until May 30, 2014 to file objections to the award. CR
                  83. The Landowners filed a motion for entry of judgment in the
                  absence of timely-filed objections. CR 98.
Trial Court’s     On August 1, 2014, the trial court granted the Landowners’
Disposition:      motion for entry of judgment and entered judgment in the
                  absence of objections. The State filed a motion for new trial,
                  which was denied. CR 188, 258. The State filed notice of this
                  appeal on October 30, 2014. CR 260.




                                        v
                             ISSUES PRESENTED


       Whether the trial court properly concluded that the State could not
unilaterally extend its deadline for appealing the administrative award by delaying
to file the award in the trial court for seven days, when the special commissioners
entrusted the award to the State to be timely filed and when the Texas Property
Code required the award to be filed “on the day the decision is made or on the next
working day after the day the decision is made.”




                                        vi
                            STATEMENT OF FACTS
      This is a statutory condemnation case governed by the Texas Property Code.

The State filed its condemnation petition on January 10, 2014 to acquire 85.02

acres of land owned by the Landowners for the extension of State Highway 99 (the

Grand Parkway) in northwest Harris County, Texas. CR 5, 9. The administrative

hearing before special commissioners took place on May 1, 2014. CR 33. On that

same day, the special commissioners made a written statement of their decision

stating the damages pursuant to Section 21.048 of the Texas Property Code. CR

43, 46. The special commissioners provided this written statement to the State’s

attorney to be filed with the court. CR 151.

      Section 21.048 of the Texas Property Code required the award to be filed on

or before May 2, 2014. TEX. PROP. CODE §21.048 (“After the special

commissioners in an eminent domain proceeding have assessed the damages, they

shall . . . make a written statement of their decision stating the damages, date it,

sign it, and file it and all other papers connected with the proceeding with the court

on the day the decision is made or on the next working day after the day the

decision is made”). In violation of the statute, the State delayed six days, until May

7, 2014, before filing the award with the court. CR 42, 43.

      The Monday following twenty days from May 2, 2014, was May 26, 2014.

Because May 26, 2014 was a legal holiday (Memorial Day), the State was required
to file its objections on or before Tuesday, May 27, 2014, pursuant to Section

21.018(a) of the Texas Property Code and Section 311.014(b) of the Texas

Government Code. The State did not file objections to the Special Commissioners

Award until May 30, 2014. CR 83. This was not timely.

      In the absence of timely-filed objections to the award, the Landowners

moved for entry of judgment requesting the trial court to adopt the commissioners’

findings as the judgment of the court pursuant to Section 21.061 of the Texas

Property Code. CR 98. On August 1, 2014, the trial court granted the Landowners’

motion for entry of judgment and entered judgment in the absence of objections.

CR 155, 157-59.

      The State filed a motion for a new trial, for reconsideration of its order

granting the Landowners’ motion for entry of judgment, and for vacation of the

trial court’s judgment. CR 188-96. The State’s motion was heard on October 8,

2014. CR 256. The trial court denied the motion on October 22, 2014. CR 258.

This appeal followed. CR 260.

                         SUMMARY OF ARGUMENT
      The State cannot take advantage of its own delay in filing the award beyond

what was permitted by Section 21.048 of the Texas Property Code to enlarge the

statutory period within which its objections must be filed.




                                          2
                                    ARGUMENT
I.    THE TRIAL COURT DID NOT ERR IN DETERMINING THAT THE STATE
      COULD NOT ENLARGE THE PERIOD FOR FILING OBJECTIONS BY
      DELAYING FILING THE AWARD ITH THE COURT.

      A.     Section 21.048 Of The Texas Property Code Is Mandatory And
             Required The Award To Be Filed Within A Day Of The Decision.
      The language of Section 21.048 of the Texas Property Code is mandatory:

the Special Commissioners “shall” file their decision with the court “on the day the

decision is made or on the next working day after the day the decision is made.”

TEX. PROP. CODE §21.048. The Special Commissioners complied with this

statutory obligation by entrusting the decision to the State for timely filing.

      B.     The Trial Court Lacked Jurisdiction To Compel The Filing Of
             The Award.
      The State contends that its own delay in filing the award with the trial court

enlarged the period within which its objection to the award could be filed from

May 27, 2014 to June 2, 2014. relying on an Austin court of appeals decision, State

v. Garland, 963 S.W.2d 95 (Tex. App.—Austin 1998, pet. denied). Although

Garland is directly on point and completely supports the State’s position, its

holding is not supported by well-established principles of Texas eminent domain

law, and this Court should decline to adopt it.

      As in this case, the award in State v. Garland was not timely filed after being

entrusted to the attorney for the condemning authority. Garland, 963 S.W.2d at 97.

The Austin court of appeals rejected what it characterized as a “merging of the

                                           3
timetables of sections 21.018 and 21.048” and held that the landowners’ remedy

was to take on an extra-statutory obligation of making sure the condemning

authority (or the Special Commissioners) complied with the obligations of Section

21.048:

             If any party does not receive such notice within a short period,
             he is alerted to check on the filing of the decision and, if
             necessary, ask the trial court to use its powers—be they termed
             “judicial” or “administrative”—to compel the filing of the
             decision.

Id. at 101. This holding implies, without any basis in the statute, that the trial court

has the ability to compel the filing of the award. Id. at 101, n. 6. Additionally, the

Garland court made no distinction of “whether it is the condemning authority or

the special commissioners who perform the act.” Id. at 99, n. 5.

      With all respect due to the Austin court of appeals, this makes too many

leaps from established condemnation law. An eminent domain proceeding is not

within the general jurisdiction of the court; any power to act is special and depends

upon the eminent domain statute. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935,

937 (1958); Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex. App.—Houston

[14th Dist.] 1990, no writ). 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. See John v. State, 826

S.W.2d 138, 141 n. 5 (Tex. 1992); Amason v. Natural Gas Pipeline Co., 682



                                           4
S.W.2d 240, 241–42 (Tex. 1985). The parties may invoke the trial court’s

jurisdiction by timely objecting to the commissioners’ findings. State v. Jackson,

388 S.W.2d 924, 925 (Tex. 1965). In that event, the proceeding becomes a civil

case, and the court has jurisdiction to determine all issues in the suit. City of

Carrollton v. OHBA Corp., 809 S.W.2d 587, 588–89 (Tex. App.—Dallas 1991, no

writ); see TEX. PROP. CODE §21.003.

      Without a timely-filed objection, however, an eminent domain proceeding

never becomes a civil case. Dickey v. City of Houston, 501 S.W.2d 293, 294 (Tex.

1973) (affirming rulings that the trial court had no jurisdiction). As the Texas

Supreme Court has explained:

            The nature of this action is of controlling significance. A
            judgment which a county court renders upon the basis of an
            award to which there have been no objections is the judgment
            of a special tribunal. Such a judgment is ministerial in nature
            and is the judgment of an administrative agency. It is not a
            judgment from which an appeal will lie. It is not a judgment in
            a civil suit, because the proceedings did not reach the stage of
            “a case in court.”

Rose v. State, 497 S.W.2d 444, 445 (Tex. 1973). Thus, the portion of the

condemnation proceeding before the commissioners is an administrative

proceeding completely separate from any judicial proceeding that may later take

place. See State v. Giles, 368 S.W.2d 943, 945 (Tex. 1963). The Texas Property

Code “says nothing about giving the trial court power to oversee the exercise of the

commissioners’ powers during the administrative proceeding.” Gulf Energy


                                         5
Pipeline Co. v. Garcia, 884 S.W.2d 821, 823 (Tex. App.—San Antonio 1994, orig.

proceeding); Blasingame, 800 S.W.2d at 394 (“[I]n the absence of timely filed

objections, the [trial] court has no jurisdiction to do anything more than accept and

adopt the award of the special commissioners as its judgment.”).

      The basis of the Austin court of appeals’s rejection in Garland of a merger

of the timetables of sections 21.048 and 21.018 of the Texas Property Code was

that “safeguards and remedies exist to prevent or rectify any delay in the filing of

the commissioners’ decision.” Garland, 963 S.W.2d at 101. Under established

condemnation law, such “safeguards and remedies” do not exist. During the

administrative phase, the trial court simply lacks jurisdiction to compel the filing of

the award. For this reason, the rule propounded by Garland should be rejected.

There is simply no reason to allow the State to manipulate its own deadline for

filing objections to the award.

      C.     The Statutory Framework Does Not Require Section 21.018 Of
             The Texas Property Code To Trump Section 21.048.
      Under Section 21.018, the filing deadline is tied to the day the

commissioners file their findings with the court. TEX. PROP. CODE §21.018. Under

Section 21.049, the clerk of the court is required to send out notice of the decision

to all parties on the day the decision is filed or the next working day after the day

the decision is filed. TEX. PROP. CODE §21.049. Unlike the State, the clerk of the

court has no way of knowing when the commissioners’ decision was made and,


                                          6
therefore, when it was required to be filed with the court. Under the State’s

argument, once entrusted with the filing of the award it could manipulate the time

period within which its own objections could be filed by delaying in filing the

award with the court, despite the mandatory obligation of Section 21.048 of the

Texas Property Code, and relying on the clerk of the court’s issuance of notice of

the decision pursuant to Section 21.049 in ignorance of the facts surrounding the

timing of the decision and filing. 1 TEX. PROP. CODE §§21.048, 21.049.

       Texas condemnation law and the statutory framework do not permit this

result. 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, 826 S.W.2d at 140 (citing Coastal Indust. 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.” Id. Furthermore, the Texas Property

Code implements a legislative policy designed to avoid the delays that occur in

court proceedings. Gulf Energy Pipeline Co., 884 S.W.2d at 824; In re State, 325

S.W.3d 848, 850 (Tex. App.—Austin 2010, no pet.) (The administrative phase is




       1
          The State argues that the clerk was enforcing Section 21.018 as written when it informed the
parties that objections were due on the first Monday following 20 days from May 7, 2014. App. Br. at 12
n. 4. The truth is the clerk was simply carrying forward the State’s unauthorized delay in filing the
decision.


                                                  7
designed to provide “a means to quickly award damages . . . without the delays that

occur in court proceedings.”).

        The special commissioners were required to file their decision with the

court. Instead, they gave it to the State. The State accepted the decision from the

special commissioners and, therefore, the obligation of Section 21.048 to file it

with the court that day or the following day. The language of Section 21.048 is

mandatory, and a liberal construction of Section 21.048 for the benefit of the

landowner does not permit a mechanical operation of Section 21.018 to trump the

mandatory requirement of Section 21.048. Once the State accepted the special

commissioners’ decision, it could not enlarge its time to file objections by delaying

to file it.

        D.    The Deadline For Filing Objections To The Award Was Not
              Tolled.
        The State’s finally argues that its objections must be found timely under the

equitable tolling doctrine announced in John v. State, relying on the clerk’s alleged

one-day delay (from May 8, 2014 to May 9, 2014) in sending the notice required

by Section 21.049 of the Texas Property Code. App. Br. at 14.

        In John, the special commissioners’ decision was filed on April 2, 1990. 826

S.W.2d at 139. Objections to the award were due on the Monday following the

twentieth day the decision was filed, or April 23, 1990. Id. The clerk, however, did

not send notice of the award’s filing until April 25, 1990. Id. Without a tolling of


                                          8
the deadline to file objections, the landowner could not have complied with the

statutory deadline.

              In the case at bar, the clerk failed to notify the Johns that the
              special commissioners’ award had been filed with the court
              until after the deadline to object had passed. As a result, the
              Johns’ time to object to the special commissioners’ award is
              tolled until the clerk sends the required notice pursuant to
              section 21.049 of the Texas Property Code.

Id. at 141.

      The case of Oncor Elec. Delivery Co. LLC v. Schunke, No. 04-13-00067-

CV, 2013 WL 6672494, at *1 (Tex. App.—San Antonio 2013, pet. dism’d), is

similarly inapposite. In that case, the clerk failed to send the notice to the

condemning authority at all. The issue in this case was not the clerk’s failure to

comply with Section 21.049 of the Texas Property Code but the State’s failure to

comply with Section 21.048. Neither John nor Schunke address this issue, and

these cases do not support the State’s argument that its deadline to file objections

should be tolled because of its own delay in filing the decision with the clerk.

      The circumstances that warranted an extension of the doctrine of equitable

tolling of the filing deadline for objections in John are not present in this case.

Most significantly, the clerk’s one-day delay in sending out the notice would not

have changed the filing deadline. If the State had timely filed the commissioners’

decision (on May 1, 2014 or May 2, 2014), and the clerk had delayed in mailing

notice of the filing by one day, the deadline for filing objections would still have


                                          9
been May 27, 2014. The only way the tolling of John could change the result in

this case is if the deadline was tolled not only for the clerk’s delay in mailing the

notice but also for the State’s delay in filing the decision. Well-established

principles of equitable tolling do not allow the doctrine to go so far.

      The tolling in John is an extension of the doctrine of equitable tolling, which

applies “where a claimant actively pursued his judicial remedies but filed a

defective pleading during the statutory period, or where a complainant was induced

or tricked by his adversary’s misconduct into allowing filing deadlines to pass.”

Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 321 S.W.3d 648, 654 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (quoting Bailey v. Gardner, 154 S.W.3d 917,

920 (Tex. App.—Dallas 2005, no pet.)). Equitable tolling is a “sparingly” invoked

doctrine. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L.

Ed.2d 435 (1990). It focuses primarily on an “excusable ignorance of the

limitations period.” Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir.1998).

The State cannot rely on equitable tolling to avoid the consequences of own

conduct. Id.; Hand v. Stevens Transp., Inc. Employee Benefit Plan, 83 S.W.3d 286,

293 (Tex. App.—Dallas 2002, no pet.).

                                      PRAYER
      For these reasons, Appellees, Titan Land Development, Inc. and Bauer-

Hockley 550, LP, request that this Court affirm the trial court’s judgment, that all



                                          10
costs of this appeal be taxed against Appellant, and for such and other further relief

to which it may show itself entitled.

                                              Respectfully submitted,

                                              MCFARLAND PLLC


                                              /s/ Charles B. McFarland__________
                                              Charles B. McFarland
                                              State Bar No. 00794269
                                              712 Main Street, Suite 1500
                                              Houston, Texas 77002-3207
                                              Tel 713.325.9701
                                              Fax 844.270.5032
                                              cmcfarland@mcfarlandpllc.com

                                              ATTORNEYS FOR APPELLEES,
                                              Titan Land Development, Inc. and
                                              Bauer-Hockley 550, LP


                           CERTIFICATE OF SERVICE

      I hereby certify that on the 9th day of March, 2015, a true and correct copy
of the above and foregoing was forwarded by certified mail, return receipt
requested, to the following:

      Susan Desmarais Bonnen
      Assistant Attorney General
      P.O. Box 12548
      Austin, Texas 78711-2548
      susan.bonnen@texasattorneygeneral.gov
      Attorney for Appellant


                                              /s/ Charles B. McFarland__________
                                              Charles B. McFarland


                                         11
                      CERTIFICATE OF COMPLIANCE

       As required by Rule 9.4(i) (3) of the Texas Rules of Appellate Procedure, I
certify that the foregoing Brief of Appellees contains 2,590 words, excluding the
parts of the document that are exempted by Rule 9.4(i)(1). I have relied on the
word count of Microsoft Word 2010, the computer program used to prepare the
document, in completing this certificate.


                                            /s/Charles B. McFarland___________
                                            Charles B. McFarland




                                       12
