Opinion
No. 05-07-00972-CV
Opinion issued December 3, 2008.
On Appeal from the County Court at Law No. 5 Dallas County, Texas, Trial Court Cause No. 04-07438-E.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice FRANCIS.
MEMORANDUM OPINION
Hazel B. Martin, widow of Curtis L. Martin, appeals the trial court's judgment condemning her property and awarding her $103,491.16 in compensation. In a single issue, Martin contends the trial court should have granted her plea to the jurisdiction because the trial court lacked jurisdiction. We disagree and affirm the trial court's judgment.
Martin owns land in Rowlett. The City of Rowlett determined it was necessary to acquire Martin's property for public purposes. Although the City contacted Martin about acquiring the property, the parties were unable to agree on the value of the land, in part because of the City's claim that Martin's land was contaminated and would require costly environmental clean-up. The City then began condemnation proceedings. On June 28, 2004, the City filed its original petition for condemnation in which it sought two parcels totaling .365 acres for street right-of-way and a temporary construction easement. The trial court appointed special commissioners to hear the condemnation proceeding. The City then filed an amended petition to include a third parcel of land, increasing the total acreage sought to .415 acres. On August 23, 2004, the special commissioners sent Martin notice of the time, date, and the court where the hearing was to be held. Martin, however, did not attend the hearing. The commissioners awarded her $1000.
Martin then filed a plea to the jurisdiction and objections to the award, complaining in part of lack of proper notice of the special commissioners' hearing. At the hearing on the plea to the jurisdiction, Martin's counsel presented argument but no evidence. The trial court denied Martin's plea to the jurisdiction. Following a trial on the merits, the trial court awarded the three parcels to the City and, apparently rejecting the City's claims of environmental contamination, awarded $103,491.16 to Martin as compensation. This appeal ensued.
In her sole issue, Martin claims the trial court should have granted her plea to the jurisdiction and dismissed the condemnation proceeding because the City failed to show proper service of notice of the special commissioners' hearing in compliance with section 21.016 of the property code. In particular, Martin claims the original notice was inadequate to vest jurisdiction because it stated the hearing was to be held in room 3108 and the room was later changed to room 354.
Condemnation proceedings begin when the condemnor files a petition with the appropriate trial court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 640 (Tex. 2001). The judge of the court appoints three disinterested commissioners to assess the damages. Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 179 (Tex. 2004). The commissioners then schedule a hearing and serve notice to the parties. Bristol Hotel Asset Co., 65 S.W.3d at 641. Section 21.016 provides that each "party to an eminent domain proceeding is entitled to written notice issued by the special commissioners informing the party of the time and place of the hearing." Tex. Prop. Code Ann. § 21.016(a) (Vernon 2004). The notice may be served as prescribed by rule 21a of the Texas Rules of Procedure. Bristol Hotel Asset Co., 65 S.W.3d at 642; Tex. R. Civ. P. 21a. Unless notice has been properly served as provided in the statute, the commissioners have no jurisdiction to assess damages or declare a condemnation of the property. Bristol Hotel Asset Co., 65 S.W.3d at 641.
Although Martin contends the notice was not valid because the room was later changed to room 354, we cannot agree. We initially note Martin does not challenge that she received notice, nor does she contend she was unable to attend the hearing. After being appointed, the three commissioners set the hearing for September 14, 2004 in the courtroom of County Court at Law No. 5 in the George L. Allen, Sr. Courts Building, 600 Commerce Street, Dallas, Texas. Written in the margin of the notice is "#3108." The record reflects the notice was served on Martin on August 25, 2004 at 3:30 p.m. by Deputy Robert F. Steed of the Rowlett Police Department. This is prima facie evidence that Martin was properly served with notice of the hearing. See id. at 642 (return of service of notice of special commissioners' hearing that strictly complies with section 21.016 is prima facie evidence that condemnee has been served with notice in compliance with statute).
Martin did not refute or contradict this evidence. See id. (when evidence of proper service and return is introduced, condemnee must offer evidence she was not served to raise fact issue). Moreover, Martin admits she received notice and concedes she made no attempt to attend the hearing or have an attorney or agent appear on her behalf. When the original notice was sent, jurisdiction vested with the commissioners. That the room was later changed did not divest the commissioners of jurisdiction. See Flynt v. Garcia, 587 S.W.2d 109, 109-10 (Tex. 1979) ("where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat jurisdiction."); Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 623 (Tex.App.-Houston [14th Dist.] 1995, no writ); Blake v. Blake, 725 S.W.2d 797, 799 (Tex.App.-Houston [1st Dist.] 1987, no writ). Because the commissioners had jurisdiction, the trial court did not err in denying Martin's plea to the jurisdiction. We overrule Martin's sole issue.
At the hearing on the plea to the jurisdiction, the trial court asked Martin's attorney whether Martin attended the special commissioners' hearing. Martin's attorney answered:
Mrs. Martin did not attend. She had been notified of the hearing, She had been notified that it was going to be in a particular location. She had-she just-I don't know if she just got scared or what. . .But she did not go, for whatever her reason was. I really can't speak to [sic] her as to that. But whatever her reason was, she didn't go. I was doing some things for her at that time, but I wasn't really officially representing her in the court. And so I really can't speak for what her decision was based on.
We affirm the trial court's judgment.