ChiefJustice ^^J?*^*^ Clerk James T.Worthen ^ncms*^ CathyS.Lusk 

### Twelfth Court ofAppeals Justices Chief StaffAttorney Sam Griffith Margaret Hussey Diane DeVasto July 14, 2004

Mr. Michael E. Starr Mr. Thomas H. Buchanan Hommel & Starr, P.C. Flowers, Davis, PLLC 3304 South Broadway 

### Suite 202 12021 E.S.E. Loop 323 Tyler, TX 75701 Suite 200
RE: Case Number: 12-03-00170-CV Trial Court Case Number: 45,962-A 

### Style: City ofTyler, Texas

v. Timothy L. Beck and Susan G. Beck Enclosed is a copy ofthe Opinion issued this date in the above styled and numbered cause. 

### Also enclosed is a copy ofthe Court'sjudgment. Very truly yours. CATHY S. LUSK, CLERK By: 

# MfcU/ldb M.fil Katrina McClenny, ChiefDepufyClerk
CC: Hon. John Ovard Hon. Randall L. Rogers Ms. Judy Carnes

>*

1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193 ServingAnderson, Cherokee, Gregg, Henderson, Hopkins, Houston, Kaufman, Nacogdoches, Panola, Rains, Rusk, Sabine, SanAugustine, Shelby, Smith Upshur, VanZandt and WoodCounties www.12thcoa.courts.state.tx.us

### NO. 12-03-00170-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT 

## TYLER, TEXAS

CITYOF TYLER, § APPEAL FROM THE APPELLANT V. § COUNTY COURTATLAWNO. 2 OF
TIMOTHYL. BECKAND SUSANG. BECK, § SMITH COUNTY, TEXAS 

## APPELLEES OPINION 

### The City of Tyler (the "City") appeals the trial court's judgment in a condemnation proceeding reinstating the special commissioners' award to Timothy L. Beck and wife, Susan G. Beck (the "Becks"). The City contends, in a single issue, that the trial court abused its discretion in 

### dismissing objections to the special commissioners' award for want of prosecution. We affirm.
Background 

### OnOctober26,2001, the City filed apetitionin condemnation against the Becks tocondemn real property to construct a sanitary sewage drainage line. The county court at lawjudge appointed three special commissioners to assess damages in accordance with Texas Property Code, section 21.014(a). Following ahearing on December27,2001, the special commissioners entered an award for the Becks in the amount of$45,816.00. 

### On January 14, 2002, the City filed objections to the special commissioners' award, in accordance with Texas PropertyCode, section 21.018(a), but it did not serve the Becks with citation, 

### as required by Texas Property Code, section 21.018(b). Later in January the Becks filed their objections to the commissioners' award, but also failed to serve the City with citation. The City and the Becks sparred over discovery until October 2002, when the Becks filed a

### special appearance, plea to thejurisdiction, and motion to dismiss. Among other contentions, the Becks stated that, if an objecting party fails to secure service of citation on the otherparty within a 

### reasonable period of time, the trial court should dismiss the objection for want ofprosecution, and then reinstate the special commissioners' award. See State v. Ellison, 788 S.W.2d 868, 871-72 (Tex. App.-Houston [1st Dist.] 1990, writ denied). The City filed aresponse to the Becks' pleading 

### and among other contentions stated "the appropriate remedy according to Ellison and other cases, is the dismissal ofall appeals and reinstatement ofthe commissioners' award." The county court at law held a hearing on the Becks' motion on January 10, 2003. On 

### March 11, the trial court signed an order dismissing the case for want ofprosecution and further 

### ordering that the award of the special commissioners in the amount of $45,816.00 be entered as the judgment ofthe court. On April 9, the City filed a motion for new trial and a verified motion to 

### reinstate. The trial court held a hearing on both motions on May 5. No further action was taken by the trial court, which resulted in the two motions being overruled by operation of law. The City timely appealed the March 11 order.

Standard ofReview 

### We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74,75 (Tex. 1997). The test for abuse ofdiscretion is whetherthe 

### court acted without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Condemnation Proceedings 

### The City's sole issue is whether the trial court abused its discretion by dismissing its 

### objection to the special commissioners' award due to a lack ofprosecution. The City argues that the trial court based the dismissal of its objection on the fact that the City never obtained service of citation on the Becks afterfiling its objection. The City submits that service ofcitation on the Becks 

### was not necessary because the Becks themselves had objected to the award of the special commissioners. 

### In Texas condemnation proceedings, there is an administrative component that must be completed before a civil trial in a court oflaw can occur. See TEX.PROP. CODE ANN. §§ 21.013,21.014 (Vernon 2004). When settlementterms cannotbe reachedbetween acondemnor, such as the 

### City, and landowners, such as the Becks, the condemnor must file a statement in condemnation in 

### thepropercourt of the county where the land is located. TEX.Prop.CodeAnn. §§ 21.001, .012, .013 (Vernon 2004). Afterthe statementis filed, the trial courtappoints three special commissioners who conduct hearings, assess the damages, and file awards reflecting their opinion of the value ofthe land. Tex.Prop.Code Ann. § 21.014-.016 (Vernon 2004). If satisfied with the special commissioners' award, the condemnor may either pay the amount to the landowner or deposit the amount into the registry ofthe court. Tex. Prop. Code Ann. § 21.021(a)(1) (Vernon 2004). Any party who is dissatisfied with the special commissioners' award is allowed a certain amount oftime within which to file objections. TEX. PROP. CODEANN. § 21.018(a) (Vernon 2004). 

### Upon filing anobjection and obtaining serviceofcitationupon the opposingparty, the administrative proceeding is converted into a normal civil case. See TEX.PROP. CODE ANN. § 21.018(b) (Vernon 2004); see also Musquiz v. Harris County Flood Control Dist., 31 S.W.3d 664, 666-67 (Tex. App.-Houston [1st Dist.] 2000, no pet.). In other words, the filing of objections coupled with 

### service of citation on the adverse party signals the end of the administrative proceeding and prevents reinstatement ofthe special commissioners' award. State v. Carlton, 901 S.W.2d 736, 738 (Tex. App.-Austin 1995, no writ). 

### We emphasize that the service of citation on the opposing party is the key event for a condemnationproceedingto beconvertedfrom an administrativeproceedingto a civil case. Without 

### the service of citation, the condemnation remains an administrative proceeding. See id. The procedures set forth in the condemnation statute must be strictly followed and its protections liberally construed for the benefit ofthe landowner. John v. State, 826 S.W.2d 138, 140 (Tex. 1992).

Dismissalfor Want ofProsecution 

### The trial court has inherent authority to dismiss any case before it for want of prosecution. 

### See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). No party in a condemnation proceeding is under a legal obligation to go forward with a civil trial unless and until it has been properly served with citation. SeeAmason v. Natural Gas Pipeline Co., 682 S.W.2d 

### 240,243 (Tex. 1984) (titingDenton County v. Brammer, 361 S.W.2d 198,200 (Tex. 1962)). If the 

### objecting party fails to secure service of citation on the other party within a reasonable period oftime, the trial court should dismiss the objections for want ofprosecution, and should also reinstate the special commissioners' award. Ellison, 788 S.W.2d at 871-72. In the case before us, both parties agreedthatthis was the law and there was no evidenceto show that any partyhad been served 

### in the manner required by section 21.018(b). See TEX. Prop. Code Ann. § 21.018(b). The Citycontends that the Becks submittedto thejurisdiction ofthe trial court for civil trial 

### purposes by filing their objection to the special commissioners' award. The City supports this 

### contention with the case ofLongino v. State, 385 S.W.2d901,903-04 (Tex. Civ. App.-Tyler 1965, writ refd. n. r. e.). However, Longino is distinguishable because there the State had obtained service ofcitation upon the landowners. Id. at 902. As we discussed earlier, service ofcitation is 

### the key to a condemnation being transformed from an administrative proceeding to a civil case to be decided in a court of law. 

### On the facts before us, we cannot conclude that the trial court acted arbitrarily or unreasonably when it determined that this matter should be dismissed for want of prosecution for the City's failure to obtain service ofcitation. Therefore, we hold that the trial court did not abuse 

### its discretion in dismissing this case for want of prosecution and reinstating the award of the special commissioners. The City's sole issue is overruled.
Disposition Thejudgment ofthe trial court is affirmed.

JAMES T. WORTHEN ChiefJustice Opinion delivered July 14, 2004. Panel consisted ofWorthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)

### COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS 

## JUDGMENT

JULY 14, 2004

NO. 12-03-00170-CV
CITY OF TYLER, Appellant V. TIMOTHY L. BECK AND SUSAN G. BECK, Appellees 

### Appeal from the County Court at Law No. 2 of Smith County, Texas. (Tr.Ct.No. 45,962-A) THIS CAUSEcameto be heard on the appellaterecordandbriefsfiled herein, 

### and the same being inspected, it is the opinion of this Court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that thejudgment 

### of the court below BE In All THINGS Affirmed and that all costs of this appeal are hereby adjudged against the appellant, City OF Tyler, for which execution may issue, and that this
decision be certified to the court below for observance. James T. Worthen, ChiefJustice. Panel consisted ofWorthen, C.J., Griffith, J., and DeVasto, J.