Opinion
NUMBER 13-15-00342-CV
06-30-2016
COPANO NGL SERVICES, Appellant, v. JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, Appellee.
On appeal from the 23rd District Court of Matagorda County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
This appeal arises from a condemnation proceeding under chapter 21 of the Texas Property Code. See TEX. PROP. CODE ANN. §§ 21.001-.103 (West, Westlaw through 2015 R.S.). Appellant Copano NGL Services, LLC ("Copano") asserts that the trial court erred by confirming a damages award to appellee John Ashcraft, individually and as trustee for the John Ashcraft Family Trust 2012 ("Ashcraft"), and by entering findings of fact and conclusions of law. We affirm.
I. BACKGROUND
Copano filed a petition in March 2015 to condemn certain Matagorda County real property owned by Ashcraft, asserting that permanent easements and rights-of-way were necessary for it to construct a natural gas liquids pipeline. In accordance with the property code, the trial court appointed special commissioners to assess Ashcraft's damages. See id. § 21.014(a) (requiring the court in a condemnation proceeding to "appoint three disinterested real property owners who reside in the county as special commissioners to assess the damages of the owner of the property being condemned"). After a hearing, the special commissioners issued their award finding that Ashcraft was entitled to $1,043,830 in damages due to the condemnation.
As a "common carrier" operating a petroleum pipeline, Copano was entitled to exercise eminent domain authority under the Texas Natural Resources Code. See TEX. NAT. RES. CODE ANN. § 111.002 (West, Westlaw through 2015 R.S.) (defining "common carrier"); id. § 111.019(a) (West, Westlaw through 2015 R.S.) ("[A] common carrier may enter on and condemn the land, rights-of-way, easements, and property of any person or corporation necessary for the construction, maintenance, or operation of the common carrier pipeline.").
Copano electronically filed the special commissioners' award with the trial court clerk on April 21, 2015, and it filed objections to the award on May 19, 2015. See id. § 21.018(a) (stating that a party to a condemnation proceeding may appeal the findings of the special commissioners by filing written objections with the trial court). Ashcraft then moved for entry of judgment on the award, asserting that Copano's objections were untimely. See id. (stating that objections to the award must be filed with the court "before the first Monday following the 20th day after the day the commissioners file their findings with the court"). The trial court granted the motion and rendered judgment confirming the award and conveying the requested easements and rights-of-way to Copano. See id. § 21.061 ("If no party in a condemnation proceeding files timely objections to the findings of the special commissioners, the judge of the court that has jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment of the court . . . .").
Later, pursuant to Ashcraft's request, the trial court issued findings of fact and conclusions of law stating in part that "[t]he findings of fact made by this Court are based on stipulations of the parties at the June 15, 2015, hearing conducted in this case and this Court's judicial notice of the district clerk's file in this matter." The trial court found, among other things, that the statutory deadline to file timely objections to the special commissioners' award was May 18, 2015, but that Copano "intentionally waited until after May 18, 2015, to file its objection, to see if Ashcraft intended to object" to the award. The trial court further found that the clerk had notified the parties of the special commissioners' award by email on April 21, 2015, and that the parties had received that notice.
This appeal followed.
II. DISCUSSION
A. Findings of Fact and Conclusions of Law
We first address Copano's second issue, by which it argues that we may not consider the trial court's findings of fact and conclusions of law because there was no evidentiary hearing held in the trial court.
The Texas Supreme Court has explained that "findings and conclusions can have no purpose and should not be requested, made, or considered" in an appeal of a "judgment rendered as a matter of law." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). Examples of such judgments include "summary judgment, judgment after directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of jurisdiction without an evidentiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered without an evidentiary hearing." Id. (citing TEX. R. CIV. P. 296 ("In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law.")). In certain other circumstances, findings and conclusions are not required by the rules of procedure but "are not without purpose" and may therefore properly be considered by the appellate court. Id. Such circumstances include when a court renders "judgment after a conventional trial . . . , default judgment on a claim for unliquidated damages, judgment rendered as sanctions, and any judgment based in any part on an evidentiary hearing." Id.
Here, it is undisputed that, although a hearing was held on Ashcraft's motion for entry of judgment, no evidence was adduced at that hearing. Instead, the trial court considered only the arguments of counsel. In this situation, findings of fact and conclusions of law are inappropriate and we may not consider them. See id. Accordingly, we sustain Copano's second issue, and we will disregard the trial court's findings and conclusions in addressing the merits of the appeal.
No transcript of this hearing appears in the appellate record. On May 13, 2016, we abated the appeal and directed the court reporter to file a supplemental record containing a transcript of the hearing, if any. The court reporter advised this Court on May 16, 2016, that there is no reporter's record in this case. Accordingly, we hereby reinstate the appeal.
B. Timeliness of Objections to Award
By its first issue, Copano asserts that the trial court erred in determining that its objections to the special commissioners' award were untimely.
Property code section 21.018, regarding the filing of objections to a special commissioners' award in a condemnation proceeding, states that any such objections "must be filed on or before the first Monday following the 20th day after the day the commissioners file their findings with the court." TEX. PROP. CODE ANN. § 21.018(a). Here, as noted, the special commissioners' award was filed with the trial court on April 21, 2015; therefore, the deadline for the filing of objections under section 21.018 was May 18, 2015. Copano filed its objections the following day, and the trial court concluded that they were untimely.
Copano claims that its objections were in fact timely because the trial court clerk did not mail notice of the special commissioners' award to Copano until May 27, 2015. Under property code section 21.049, the trial court clerk must "send notice of the [special commissioners'] decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding" "[n]ot later than the next working day after the day the decision is filed." Id. § 21.049. Copano argues that, because the clerk failed to comply with this mandatory duty, the timeline for filing objections should have been tolled to account for the delay in mailing notice.
In support of its argument, Copano relies on John v. State, 826 S.W.2d 138 (Tex. 1992) (per curiam). In John, the State of Texas commenced an eminent domain action to condemn property owned by the Johns. Id. at 139. Special commissioners were appointed, and their award to the Johns was filed with the trial court clerk on April 3, 1990. Id. The clerk, however, did not mail notice as required by section 21.049 until April 25, 1990. Id. The Johns filed objections to the award on April 27, 1990, but the trial court ruled that the objections were untimely under section 21.018(a). Id. The court of appeals agreed, likening section 21.049 to Texas Rule of Civil Procedure 239a, regarding default judgments, which contains a notice requirement that courts have considered "directory" rather than "mandatory." Id. at 139-40 (citing Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 244-45 (Tex. 1974)); see TEX. R. CIV. P. 239a ("Immediately upon the signing of the [default] judgment, the clerk shall mail written notice thereof to the party against whom the judgment was rendered.").
The supreme court disagreed, finding that section 21.049 is not analogous to rule 239a, for two reasons. John, 826 S.W.2d at 140. First, rule 239a specifically states that "[f]ailure to comply with the provisions of the rule shall not affect the finality of the judgment"; therefore, unlike section 21.049, the notice requirement in rule 239a is made directory by its express language. Id. (citing TEX. R. CIV. P. 239a). Second, because a landowner in a condemnation action is given but "a single opportunity to recover damages for the taking of his property," "the procedures set forth in the condemnation statute must be strictly followed and its protections liberally construed for the benefit of the landowner." Id. (citing Coastal Indust. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 599 (Tex. 1979); Rotello v. Brazos Cnty. Water Control & Improvement Dist., 574 S.W.2d 208, 212 (Tex. Civ. App.—Houston [1 st Dist.] 1978, no writ) ("The protection which the law has erected for the benefit of the citizens as against the exercise of the power of condemnation is liberally construed. Condemnation proceedings must be conducted in strict accordance with the statute authorizing the procedure."); Walling v. State, 394 S.W.2d 38, 40 (Tex. Civ. App.—Waco 1965, writ ref'd n.r.e.) ("The rule is that in condemnation proceedings, the requirements of the statutes are to be strictly followed, and that such rule is for the benefit of the landowner.")). The John Court remarked that "[i]n contrast to rule 239a, [section 21.049] 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." Id.
The John Court then concluded that, because "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, . . . the Johns' time to object to the special commissioners' award is tolled until the clerk sends the required notice pursuant to section 21.049 . . . ." Id. at 141. In reaching this conclusion, the Court observed that "[w]hen a statute provides the method by which notice shall be given in a particular instance, the notice provision must be followed with reasonable strictness." Id. at 141 n.4 (citing Rotello, 574 S.W.2d at 212). However, "[b]y sending notice to the Johns after their time to object had lapsed, the clerk failed to follow the notice requirement with reasonable strictness." Id.
Copano also cites Oncor Electric Delivery Co. v. Schunke, No. 04-13-00067, 2013 WL 6672494 (Tex. App.—San Antonio Dec. 18, 2013, pet. dism'd) (mem. op.). There, condemnor Oncor filed the special commissioners' award with the trial court on September 26, 2011, and the trial court clerk handed Oncor's attorney a file-stamped copy of the notice, but the clerk never mailed the notice to Oncor's attorney as required by section 21.049. Id. at *1. Oncor then filed objections to the award on October 19, 2011, two days after the section 21.049 deadline expired. Id. The trial court found that the objections were untimely, but the Fourth Court of Appeals disagreed. Id. In a memorandum opinion, the appeals court rejected the landowner's arguments—also made by Ashcraft here—that John did not apply because the condemnor had actual notice of the commissioners' decision and because the party claiming lack of notice was the condemnor, not the landowner. See id. at *2-4. The court concluded instead that, under John, "the parties' time to object to the special commissioners' award is tolled until the clerk sends the required notice pursuant to section 21.049" regardless of whether the party claiming lack of section 21.049 notice is the condemnor or the landowner, and regardless of whether that party had actual notice of the filing of the award. Id. at *3 (quoting John, 826 S.W.3d at 139).
We find John to be distinguishable from the instant case. First, as noted, the supreme court emphasized in John that the notice statute must be "liberally construed for the benefit of the landowner" in light of the fact that "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; see State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001) ("We liberally construe the Property Code's protections for the landowner's benefit."). The John Court noted that the "statutory scheme authorizing eminent domain actions . . . is designed to protect the landowner." John, 826 S.W.2d at 140. In construing section 21.018 such that its clear deadline is tolled until notice of the award is mailed, the John Court relied heavily on these principles. On the other hand, there is no equivalent public policy reason to construe the statutes liberally in favor of the condemnor. On the contrary, as explained in John, the statutory scheme—including the unequivocal and unambiguous provision of section 21.018 that the timeline for objecting to the award begins to run at the time the award is filed with the trial court—must be "strictly followed" and construed in favor of the landowner. See id. ("[T]he procedures set forth in the condemnation statute must be strictly followed and its protections liberally construed for the benefit of the landowner.").
Second, the supreme court's ruling in John turned on its finding that the clerk in that case had not complied with the notice statute "with reasonable strictness." Id. at 141 n.4 ("When a statute provides the method by which notice shall be given in a particular instance, the notice provision must be followed with reasonable strictness.") (citing Rotello, 574 S.W.2d at 212)). In John, the clerk "failed to follow the notice requirement with reasonable strictness" because it mailed notice to the Johns only after the deadline to object to the award had lapsed. Id. In Oncor, the clerk never mailed notice. See 2013 WL 6672494, at *1. Here, according to Ashcraft, the clerk provided email notice of the filing of the award to the parties' attorneys on April 21, 2015, the day Copano filed the award.
In its reply brief, Copano notes that there is no evidence in the record that the trial court clerk provided email notice to the parties' attorneys on April 21, 2015, and it argues without reference to authority that "[i]f such evidence existed it was Ashcraft's duty to get it into the record." But "[t]he burden is on the appellant to see that a sufficient record is presented to show error requiring reversal." Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990). In this case, there was a hearing before the trial court at which no evidence was adduced but argument was heard, and without a transcript of that hearing, we can not discern whether the parties stipulated to the fact that email notice was sent. In any event, we note that Copano does not explicitly deny that it received email notice on April 21, 2015.
Third, it is undisputed in this case that Copano had actual notice on April 21, 2015, that the award was filed with the trial court—because Copano itself was the party that filed the award with the clerk on that date. This contrasts with the situation presented in John. Although there is no explicit mention in John as to whether the landowners had actual notice of the filing of the award prior to the time the clerk mailed notice pursuant to section 21.049, the landowners filed their objections two days after the clerk mailed notice, indicating that they did not in fact have actual notice before the mailing. See John, 826 S.W.3d at 139. The decision in John to toll the section 20.018 timeline was based on the fact that the landowner did not have the opportunity to object to the award because it had no notice, actual or otherwise, that the award had been filed and that the section 20.018 timeline therefore began to run. See id. Here, contrariwise, it is undisputed that Copano had actual notice of the filing of the award at the time it was filed and was therefore well aware that the time period for filing objections had begun under section 20.018(a). See TEX. PROP. CODE ANN. § 21.018(a). This is borne out by the fact that Copano filed objections to the award before it received mailed notice as required by section 21.049.
In Oncor, the appellant condemnor had actual notice of the filing of the award because the clerk handed the appellant's attorney a filed-stamped copy of the notice. Oncor Elec. Delivery Co. v. Schunke, No. 04-13-00067, 2013 WL 6672494, at *3 (Tex. App.—San Antonio Dec. 18, 2013, pet. dism'd) (mem. op.). The Fourth Court of Appeals nevertheless concluded that, under John, the timeline forthe condemnor to file objections must be tolled until notice is mailed. Id. at *3-4. The Oncor court emphasized that "statutes that are clear and unambiguous must be enforced as written" and that section 21.049 requires the clerk to send notice to "the parties," not just the landowner. Id. at *3 (citing TEX. PROP. CODE ANN. § 21.049 (West, Westlaw through 2015 R.S.); John v. State, 826 S.W.2d 138, 140 (Tex. 1992)). We agree that the statute requires the clerk to send notice to both parties; but we disagree with the Oncor court's conclusion that, because of this fact, tolling must apply to condemnors as well as landowners. The timeline set forth in section 20.018 is also "clear and unambiguous" and therefore must also "be enforced as written" unless there is a persuasive reason to toll the timeline. We do not believe that John provides such a reason with respect to condemnors that have actual notice of the filing of the award, and we therefore disagree with Oncor.
In summary, we note that the property code states unambiguously that the deadline for objecting to an award runs from the time the award is filed with the court. See id. The legislature could have decided that the timeline for filing objections should begin with the mailing or receipt of notice, but it did not—it decided that the timeline should begin with the filing of the award with the clerk. The legislature also declined to include any tolling provision in this statute, perhaps because it was cognizant that the filing of the award with the clerk is typically a duty performed by the condemnor itself rather than the special commissioners. See Oncor, 2013 WL 6672494, at *3 n.1 ("Apparently, the practice of a party filing the notice of decision on behalf of the commissioners is not unusual."); State v. Garland, 963 S.W.2d 95, 99 (Tex. App.—Austin 1998, pet. denied) ("We are informed . . . that a representative of the condemnor typically offers to carry out the actual filing of the document, and that such offer is usually accepted by the commissioners."). Therefore, tolling is required only to the extent it is judicially mandated by the John decision. For the reasons discussed above, we conclude that John is applicable only to cases where the landowner does not receive mailed notice; and we decline to extend John to cover situations, such as the instant case, where the condemnor has actual notice but does not receive mailed notice.
The dissent is correct that section 21.049 unambiguously requires the clerk to mail notice to both the landowner and the condemnor. See TEX. PROP. CODE ANN. § 21.049. But this does not mean, as the dissent suggests, that our ruling is contrary to the statute or that there is "nothing to . . . construe." The question presented in this appeal is not whether the clerk had a duty to mail notice to the parties; it is whether the objection period must be tolled when the clerk fails to comply with that duty—and the statute, as noted, is silent as to tolling. Thus, the John Court's ruling implying a tolling provision for landowners was not based on the literal text of the statute but instead was based on its construction of the statute. For the reasons stated herein, we believe that the applicable rules of construction mandate a different result in light of the facts in this case.
We acknowledge that some of the language in John is broad; for example, in its introductory paragraph, John states generally "that in a condemnation proceeding, the parties' time to object to the special commissioners' award is tolled until the clerk sends the required notice pursuant to section 21.049 . . . ." John, 826 S.W.2d at 139. However, the language in other parts of the opinion is narrower and indicates that the ruling is limited to landowners. See id. at 141 n.5 ("[T]he clerk's failure to send notice tolls the landowner's time to object."). In any event, to the extent John appears to declare universally that lack of notice tolls the deadline to file objections for either the landowner or the condemnor, regardless of whether the complaining party received actual notice, we conclude that is non-binding dicta. See, e.g., Wolfe v. State, 120 S.W.3d 368, 374 (Tex. Crim. App. 2003) (Keasler, J., dissenting) (noting that "[s]tatements that are unnecessary to the issue upon which the Court is writing" are dicta and not binding under stare decisis). The John Court considered only the situation where a landowner does not receive any notice, mailed or otherwise, and it did not contemplate the situation presented here, where a condemnor has actual notice but not mailed notice. Cf. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (noting that "judicial dictum," a statement "made very deliberately after mature consideration and for future guidance in the conduct of litigation," is "at least persuasive and should be followed unless found to be erroneous") (citing Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex. 1964)). --------
Accordingly, notwithstanding John, Copano's objections to the award were untimely and the trial court therefore did not err in confirming the award. See TEX. PROP. CODE ANN. § 21.061. We overrule Copano's first issue.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS GARZA
Justice Delivered and filed the 30th day of June, 2016. Dissenting Memorandum Opinion by Justice Gregory T. Perkes.