Court of Appeals. Fifth District of Texas at Dallas

Transcription

1 In The Court of Appeals ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 July 10 P3:25 Lisa Matz CLERK Fifth District of Texas at Dallas NO CV W.A. MCKINNEY, Appellant V. CITY OF CEDAR HILL, TEXAS, Appellee BRIEF OF APPELLEE THE MACFARLANE FIRM, P.C. RON G. MACFARLANE, JR. State Bar No LBJ Freeway, Suite 1200 Dallas, Texas Telephone: Facsimile: ATTORNEY FOR APPELLEE, CITY OF CEDAR HILL

2 IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS NO CV W.A. MCKINNEY, Appellant V. CITY OF CEDAR HILL, TEXAS, Appellee. IDENTIFICATION OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), Appellee, City of Cedar Hill, provides the following identification of parties and counsel: APPELLANT: APPELLEE: APPELLEE'S ATTORNEY: OTHER: W.A. McKinney, Pro Se 941 Kenwood Drive Abilene, Texas City of Cedar Hill, Texas 285 Uptown Blvd., Bldg. 100 Cedar Hill, Texas Ron G. MacFarlane, Jr. The MacFarlane Firm, P.C LBJ Freeway, Suite 1200 Dallas, Texas Telephone: Facsimile: Mr. Garland Boles 439 Azalea Lane Duncanville, Texas Alleged Attorney-In-Fact for W.A. McKinnery Walter L. Irvin 5787 S. Hampton Road, Suite 210, L.B. 122 Dallas, Texas Former Attorney for Appellant in the Trial Court -1-

3 TABLE OF CONTENTS CERTIFICATE OF PARTIES AND COUNSEL TABLE OF CONTENTS INDEX OF AUTHORITIES REFERENCE KEY STATEMENT OF THE CASE STATEMENT REGARDING ORAL ARGUMENT REPLY TO ISSUES PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT Page Reply to Issue No. 1: THE TRIAL COURT DID NOT ERR OR ABUSE ITS DISCRETION IN DENYING A MOTION FOR CONTINUANCE TO THE DECEMBER 5, 2011 TRIAL SETTING Reply to Issue No. 2: THE TRIAL COURT HAD JURISDICTION OVER THE CASE, APPELLEE COMPLIED WITH THE APPLICABLE REQUIREMENTS OF THE TEXAS PROPERTY CODE, AND THE PROVISION OF THE PROPERTY CODE RELIED UPON BY THE APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED Reply to Issue No. 3: THE TRIAL COURT HAD JURISDICTION OVER THE CASE AND THE PROVISION OF THE PROPERTY CODE RELIED ON BY APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED PRAYER CERTIFICATE OF SERVICE

4 INDEX OF AUTHORITIES PAGE STATUTES TEX. PROP. CODE , 8 TEX. PROP. CODE , 8 TEX. PROP. CODE , 9 RULES TEX. R. APP. P Tex. R. App. P. 38.1(a) TEX. R. APP. P TEX. R. CIV. P , 8 Tex. R. Civ. P CASES Ayati-Ghaffari v. H-Ebrahimi, 109 S.W.3d 915, 916 (Tex. App.--Dallas 2003, no pet.) Hornsby v. Alter s Gem Jewelry, Ltd., 2005 Tex. App. LEXIS 9640 (Tex. App. Beaumont 2005, pet. denied) , 8 Rangel v. State Bar of Texas, 898 S.W.2d 1, 3 (Tex. App. - San Antonio 1995, no writ) State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) REFERENCE KEY Clerk s Record ( Clk. Rec. ) Reporter s Record ( Rpt. Rec. ) Appellant s Brief ( Ant. Br. ) Appendix to Appellee s Brief ( Appx. ) -3-

5 IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS NO CV W.A. MCKINNEY, Appellant V. CITY OF CEDAR HILL, TEXAS, Appellee BRIEF OF APPELLEE TO THE HONORABLE COURT OF APPEALS: COMES NOW the Appellee, CITY OF CEDAR HILL, and submits this its Brief of Appellee in response to the Brief of the Appellant, W.A. MCKINNEY, filed with this Court. STATEMENT OF THE CASE This is an appeal of an eminent domain case filed by the Appellee on December 9, 2009 in the County Court at Law. No. 2 of Dallas County, Texas. (Clk. Rec. p.8). The trial court appointed special commissioners whose oaths were filed on March 10, 2010 (Clk. Rec. pp ). The Appellant was provided with notice of the hearing set by the Special Commissioners (Clk. Rec. pp ) and Appellant attended the hearing (Ant. Br. p. 2). The special commissioners heard the case and issued the Commissioner s Report and Award on April 6, 2010 (Clk. Rec. pp ). Appellee deposited the amount of the Award into the registry of the court on April 20, 2010 (Clk. Rec. pp. 142). Appellant filed a motion to withdraw the Award on May 5, 2010 (Clk. Rec. pp ) and later withdrew the Award (Ant. Br. p. 3). Appellant, by and though his counsel of record, filed objections to the Award on April 23, 2010 (Clk. Rec. p. 153) -4-

6 and amended objections on June 24, 2010 (Clk. Rec. p. 156). The case was set for trial on December 5, 2011 (Clk. Rec. p. 202). A Motion for Continuance to the December 5, 2012 trial setting was filed by one Roy Garland Boles for the Appellant on November 17, 2011 (Clk. Rec. p. 170). The case was called to trial on December 5, 2011 and Appellant did not appear for trial. (Clk. Rec. p. 183; Rpt. Rec. pp. 5, 15). The trial court entered a Final Judgment on December 13, 2011 in which it adopted the Commissioner s Report and Award of April 6, 2012 as the judgment of the court. STATEMENT REGARDING ORAL ARGUMENT Appellant has not requested oral argument and has therefore waived the right to same pursuant to TEX. R. APP. P Further, Appellee believes that upon submission of this appeal, the Court can fairly evaluate the issues and render a decision without the need of oral argument. REPLY TO ISSUES PRESENTED Reply To Issue No. 1: Reply to Issue No. 2: Reply to Issue No. 3: THE TRIAL COURT DID NOT ERR OR ABUSE ITS DISCRETION IN DENYING A MOTION FOR CONTINUANCE 1 TO THE DECEMBER 5, 2011 TRIAL SETTING. In response to Appellant s Issue No. 1. THE TRIAL COURT HAD JURISDICTION OVER THE CASE, APPELLEE COMPLIED WITH THE APPLICABLE REQUIREMENTS OF THE TEXAS PROPERTY CODE, AND THE PROVISION OF THE PROPERTY CODE RELIED UPON BY THE APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED. In response to Appellant s Issue No. 2. THE TRIAL COURT HAD JURISDICTION OVER THE CASE AND THE PROVISION OF THE PROPERTY CODE RELIED ON BY APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED. In response to Appellant s Issue No Issue No. 1 as listed in the Table of Contents of Appellant s Brief raises an issue of a bus allegedly converted by the Appellant. This is apparently a mistake resulting from copying from a brief in another case. There is no issue of a bus in this lawsuit. -5-

7 STATEMENT OF FACTS Appellee agrees with the Statement of Facts presented by Appellant except for the Appellant s omission of the following facts: The Motion for Continuance filed on November 17, 2011, seeking a continuance to the December 5, 2011 trial setting, was not filed by Appellant or his attorney. Instead, the motion was filed by one Roy Garland Boles who is not an attorney or a party to this case (Clk. Rec. p. 170; Rpt. Rec. p. 11, lines 13-25). Mr. Boles claims to have power of attorney to represent the Appellant, but no document evidencing such authority was offered or admitted into evidence. SUMMARY OF ARGUMENT The trial court did not err or abuse its discretion in refusing to grant Appellant a third continuance because no valid motion for continuance had been filed. The trial court did not lack jurisdiction due to any failure of Appellee to comply with TEX. PROP. CODE (b)(6). Appellant made no such objection in the court below and now complains for the first time on appeal. Section (b)(6) requires that a Condemnation Petition contain a statement that the entity [filing the petition] made a bona fide offer to acquire the property from the property owner voluntarily as provided in section Section (b)(6) became effective September 1, 2011 and did not apply to the Appellee s condemnation suit which was filed in The trial court did not lack jurisdiction by failing to give Appellant notice of the appointed Special Commissioners and time to object. Appellant made no such objection in the court below and now complains for the first time on appeal. The provision of the Texas Property Code upon which Appellant relies (Section (a)) did not become effective until September 1, 2011 and therefore was not applicable to this case. Further, the evidence and the admissions of Appellant clearly indicate that the Appellant had notice of the Special Commissioners, attended and participated in the hearing of the Special Commissioners, and never objected to any of the Special Commissioners. -6-

8 ARGUMENT Reply to Issue No. 1 THE TRIAL COURT DID NOT ERR OR ABUSE ITS DISCRETION IN DENYING A MOTION FOR CONTINUANCE TO THE DECEMBER 5, 2011 TRIAL SETTING. Motions for continuance shall not be granted except for sufficient cause supported by an affidavit. TEX. R. CIV. P Absence of counsel alone is not good cause for a continuance. TEX. R. CIV. P A motion for continuance, even though verified, is insufficient when not supported by an affidavit. Hornsby v. Alter s Gem Jewelry, Ltd., 2005 Tex. App. LEXIS 9640 (Tex. App. Beaumont 2005, pet. denied). When the basis for a motion for continuance is the withdrawal of counsel, the movant must show that the failure to be represented at trial was not due to his own fault or negligence. See, State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); see also Ayati-Ghaffari v. H-Ebrahimi, 109 S.W.3d 915, 916 (Tex. App.--Dallas 2003, no pet.). An appellate court reviews a trial court's denial of a motion for continuance for abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Unless the record shows a clear abuse of discretion, a trial court's decision to deny a motion for continuance should not be disturbed on appeal. Id. In the present case, a motion for continuance was filed on November 17, 2011, seeking a continuance to the December 5, 2011 trial setting. The motion was not filed by the Appellant or by his attorney. Instead, the motion was signed and verified by one Roy Garland Boles who is not an attorney or a party to this case (Clk. Rec. p. 170; Rpt. Rec. p. 11, lines 13-25). In the motion, Mr. Boles claims to have power of attorney to represent the Appellant, but no document evidencing such authority was offered or admitted into evidence. It may also be important to note that at the time Mr. Boles filed the motion, the Appellant was still being represented by a licensed attorney. The trial court did not recognize or consider the motion for continuance filed by Mr. Boles because Mr. Boles was not authorized or qualified to file motions in a court of law (Rpt. Rec. p. 13, lines 8-13). -7-

9 Further, although the motion for continuance was verified by Mr. Boles, the factual allegations contained therein were obviously not based on personal knowledge and were not supported by the affidavit of the Appellant or his attorney. Specifically, Mr. Boles states in the motion for continuance that the Appellant s attorney... is over worked and cannot timely deal with this case mandating that another attorney be located to assist and represent Defendant [Appellant] (Clk. Rec. p. 170). Since the motion for continuance was not supported by a proper affidavit, it did not fulfill the requirements of TEX. R. CIV. P See, Hornsby v. Alter s Gem Jewelry, Ltd., 2005 Tex. App. LEXIS 9640 (Tex. App. Beaumont 2005, pet. denied) (court did not abuse its discretion in disregarding a motion for continuance which, although verified, was not supported by an affidavit). Finally, even if, by some stretch of the imagination, the motion for continuance filed by Mr. Boles was proper, the Appellant failed to request a hearing and ruling on the matter. A party moving for a continuance must obtain a ruling on its motion to preserve a complaint for appellate review. See TEX. R. APP. P. 33.1; Rangel v. State Bar of Texas, 898 S.W.2d 1, 3 (Tex. App. - San Antonio 1995, no writ). Reply to Issue No. 2 THE TRIAL COURT HAD JURISDICTION OVER THE CASE, APPELLEE COMPLIED WITH THE APPLICABLE REQUIREMENTS OF THE TEXAS PROPERTY CODE, AND THE PROVISION OF THE PROPERTY CODE RELIED UPON BY THE APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED. Appellant argues that the trial court somehow did not have jurisdiction over the case because Appellee did not comply with TEX. PROP. CODE (b)(6). Appellant never raised such an objection in the trial court and complains now for the first time on appeal. Section (b)(6) requires that a Condemnation Petition contain a statement that the entity [filing the petition] made a bona fide offer to acquire the property from the property owner voluntarily as provided in section Section (b)(6) became effective September 1, 2011 pursuant to the passage of Senate Bill 18. Acts 2011, 82nd Leg., ch. 81 (S.B. 18), 24 provides: -8-

10 Section , Education Code, Chapter 2206, Government Code, Sections , , , and , Local Government Code, Chapter 21, Property Code, and Section 1, Chapter 178 (S.B. 289), Acts of the 56th Legislature, Regular Session, 1959 (Article 3183b-1, Vernon's Texas Civil Statutes), as amended by this Act, apply only to a condemnation proceeding in which the petition is filed on or after the effective date of this Act [September 1, 2011], and to any property condemned through the proceeding. A condemnation proceeding in which the petition is filed before the effective date of this Act and any property condemned through the proceeding are governed by the law in effect immediately before that date, and that law is continued in effect for that purpose. (See Appx. pp. 13, 25-26) [Emphasis Added]. Based on the foregoing facts, it is clear that the requirement in Section (b)(6) did not exist or apply at the time Appellee filed this case in Even if Section (b)(6) applied to this case, which it does not, the Appellant never specially excepted nor objected to Appellee s pleadings and therefore lost his right to complain on appeal. Reply to Issue No. 3 THE TRIAL COURT HAD JURISDICTION OVER THE CASE AND THE PROVISION OF THE PROPERTY CODE RELIED UPON BY APPELLANT DID NOT EXIST OR APPLY AT THE TIME THIS CASE WAS FILED. The Appellant complains that the trial court somehow lacked jurisdiction for failure to give notice of the appointment of the Special Commissioners and an opportunity to object. Appellant never raised such an objection in the trial court and complains now for the first time on appeal. Appellant bases his contention on TEX. PROP. CODE which provides, in pertinent part, that [t]he judge shall provide each party a reasonable period of time to strike one of the three commissioners appointed by the judge. TEX. PROP. CODE (a). However, this specific provision was added to Section (a) by S.B. 18 and did not become effective until September 1, See Acts 2011, 82nd Leg., ch. 81 (S.B. 18), 24, supra and Appx. at pp. 14, 25-26). The right to strike one commissioner did not exist when this lawsuit was filed in 2009 and therefore does not apply to this case. Even if the above referenced sentence in (a) applied to this case, which it does not, the Appellant was provided notice of the April 6, 2010 hearing of the Special Commissioners. Specifically, the Commissioners Report and Award states that written notice of the hearing was -9-

11 provided to each of the interested parties and that the Commissioners heard testimony of the parties, all of whom appeared in person or by attorney (Clk. Rec. p.185). The Appellant did not object to the Special Commissioners before, at or after the hearing. The Appellant even admits in his brief to this Court that [t]he Appellee and Appellant appeared before the special commissioners appointed by the Court [sic] and the Special Commissioners awarded Appellant the sum of $233, for the two lots (Ant Br. p. 2) [emphasis added]. Based on these facts it cannot reasonably be argued that Appellant did not have notice of the appointment of the Special Commissioners or time to object to any of them serving in such capacity, regardless of the fact that the applicable edition of the Texas Property Code did not afford Appellant any such right. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellee prays that this Court would affirm the trial court's judgment and grant Appellee all other and further relief, at law or in equity, to which it is justly entitled. Respectfully submitted, THE MACFARLANE FIRM, P.C. /s/ Ron G. MacFarlane, Jr. RON G. MacFARLANE, JR. Texas State Bar No LBJ Freeway, Suite 1200 Dallas, Texas Telephone: (214) Facsimile: (888) ATTORNEY FOR APPELLEE, CITY OF CEDAR HILL -10-

12 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing have been mailed, certified mail, return receipt requested to the Appellant, Pro Se, Mr. W.A. McKinney, 941 Kenwood th Drive, Abilene, Texas 79604, on this the 10 day of July, /s/ Ron G. MacFarlane, Jr. RON G. MacFARLANE, JR. -11-

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