Copano NGL Services, LLC v. John Ashcraft, Individually and as Trustee for the John Ashcraft Family Trust 2012

ACCEPTED
13-15-00342-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/4/2015 11:57:46 AM
Dorian E. Ramirez
CLERK

NO. 13-15-00342-CV
______________________________________________________________
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF TEXAS
12/4/2015 11:57:46 AM
AT CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ
Clerk
______________________________________________________________

COPANO NGL SERVICES, LLC,

Appellant,

V.

JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE
FOR THE JOHN ASHCRAFT FAMILY TRUST 2012,

Appellee.
______________________________________________________________

On Appeal From the 23rd Judicial District
Court of Matagorda County, Texas,
Cause No. 15-H-0082
_____________________________________________________________

BRIEF OF APPELLEE
______________________________________________________________

VINCENT L. M ARABLE III JOHN T. M CDOW ELL DANNY SHINDLER
trippm arable@ sbcglobal.net jtm @ houstontrialattorneys.com dwshindler@ sbcglobal.net
PAUL W EBB, P.C. KACY J. SHINDLER 2232 Avenue G
221 N. Houston ks@ houstontrialattorneys.com Bay City, Texas 77414
W harton, Texas 77488 M C D OWELL W ELLS , LLP Telephone: (979) 245-4666
Telephone: (979) 532-5331 603 Avondale Street Telecopier: (979) 244-5342
Telecopier: (979) 532-2902 Houston, Texas 77006
Telephone: (713) 655-9595
Telecopier: (713) 655-7868

ATTORNEYS FOR APPELLEE

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT REGARDING ORAL ARGUMENT
(TEX. R. APP. P. 38.2(a)(1)(B)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RECORD AND PARTY REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . 14

BRIEF OF APPELLEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

INTRODUCTION AND OVERVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

STATEMENT OF FACTS (Tex. R. App. P.
38.2(a)(1)(B)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

SUMMARY OF RESPONSIVE ARGUMENTS. . . . . . . . . . . . . . . . . . . . . 19

RESPONSIVE ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. Copano’s Objection To The Special
Commissioners’ Award Was Not Timely
Filed (Responsive to Copano’s Appellant’s
Brief, pp. 7-15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Introduction And Overview.. . . . . . . . . . . . . . . . . . . . . . 22

B. Statutory Construction In Eminent
Domain/Condemnation Cases. . . . . . . . . . . . . . . . . . . . 25

C. The Condemnation Process And Its
Deadlines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2
 D. Timely Objections To The Special
Commissioners’ Award. . . . . . . . . . . . . . . . . . . . . . . . . 31

E. Texas Property Code Section
21.049 And John v. State. . . . . . . . . . . . . . . . . . . . . . . 33

F. Oncor Electric Delivery Co. v.
Schunke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

G. Reasonable Strictness And Actual
Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

H. Copano Misstates Mr. Ashcraft’s
Liberal Construction Arguments.. . . . . . . . . . . . . . . . . . 43

I. Copano’s Statutory Interpretation. . . . . . . . . . . . . . . . . 46

II. Rule 21's Electronic Filing And Service
Provisions Control (Responsive to
Copano’s Appellant’s Brief, pp. 11-13). . . . . . . . . . . . . . . . . . 52

III. The Findings Of Fact And Conclusions Of
Law Were Appropriate (Responsive to
Copano’s Appellant’s Brief, pp. 15-17). . . . . . . . . . . . . . . . . . 56

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

3
 INDEX OF AUTHORITIES

CASES:

Amason v. Natural Gas Pipeline Co., 682 S.W.2d
240 (Tex. 1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

American Homeowner Preservation Fund, LP v.
Pirkle, No. 02-14-00293-CV, __ S.W.3d __,
2015 WL 5173066 (Tex. App.–Fort Worth Sep. 3,
2015, pet. filed). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Am. Mut. Liability Ins. Co. v. Parker, 191 S.W.2d
844 (Tex. 1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 58

A. O. Smith v. Adair, 96 S.W.3d 700 (Tex. App.–
Texarkana 2003, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

AVM-Hou, Ltd. v. Capital Metropolitan Transp.
Authority, 262 S.W.3d 574 (Tex. App.–Austin
2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

BMC Software Belgium, N. V. v. Marchand,
83 S.W.3d 789 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Bridgestone/Firestone, Inc. v. Glyn-Jones,
878 S.W.2d 132 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

4
Burch v. City of San Antonio, 518 S.W.2d
540 (Tex. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Butler v. Taylor, 981 S.W.2d 742 (Tex. App.–
Houston [1st Dist.] 1998, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Byrd Irr. Co. v. Smythe, 146 S.W. 1064 (Tex. Civ.
App.–San Antonio 1912, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Chisolm v. Bewley, Mills, 287 S.W.2d 943 (Tex.
1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

City of Blue Mound v. Southwest Water Co., 449 S.W.3d
678 (Tex. App.–Fort Worth 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 28

City of Bryan v. Moehlman, 282 S.W.2d 687
(Tex. 1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

City of Carrollton v. Singer, 232 S.W.3d 790
(Tex. App.–Fort Worth 2007, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Dallas v. Stewart, 361 S.W.3d 562
(Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

City of Houston v. Derby, 215 S.W.2d 690
(Tex. Civ. App.–Galveston 1948, writ ref’d) . . . . . . . . . . . . . . . . . . . . . . . 27

City of Tyler v. Beck, 196 S.W.3d 784
(Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

5
Clower v. Fannin-Lamar-Delta Counties
Levee Imp. Dist. No. 3, 39 S.W.2d 831
(Tex. Comm’n App. 1931, holding approved) .. . . . . . . . . . . . . . . . . . . . . 27

Coastal States Gas Producing Co. v. Pate,
309 S.W.2d 828 (Tex. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Crown Life Ins. Co. v. Estate of Gonzalez,
820 S.W.2d 121 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Degen v. General Coatings, Inc., 705 S.W.2d
734 (Tex. App.–Houston [14th Dist.] 1986, no writ) .. . . . . . . . . . . . . . . . . 54

Duncan v. Calhoun County Navigation
District, 28 S.W.3d 707 (Tex. App.–Corpus
Christi 2000, pet. denied) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

FKM P’ship, Ltd. v. Bd. of Regents of the Univ.
of Houston Sys., 255 S.W.3d 619 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . 48

Few v. Charter Oak Fire Ins. Co., 463 S.W.2d
424 (Tex. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Freeman v. Freeman, 327 S.W.2d 428 (Tex. 1959) . . . . . . . . . . . . . . . . . 53

Greater Houston German Shepherd Dog
Rescue, Inc. v. Lira, 447 S.W.3d 365 (Tex.
App.–Houston [14th Dist.] 2014, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . 58

6
Greater Houston Partnership v. Paxton,
468 S.W.3d 51 (Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486
(Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Hicks v. Texas Municipal Power Agency,
548 S.W.2d 949 (Tex. Civ. App.–Houston
[14th Dist.] 1977, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

In re City of Georgetown, 53 S.W.3d 328
(Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

In re M.A.W., 55 S.W.3d 101 (Tex. App.–
Amarillo 2001, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

In re Perritt, 973 S.W.2d 776 (Tex. App.–
Texarkana 1998, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

In re United Services Auto Ass’n, 307 S.W.3d
299 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

In re Valliance Bank, 422 S.W.3d 722 (Tex.
App.–Fort Worth 2012, orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . 44

IKB Industries (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

John v. State, 826 S.W.2d 138 (Tex. 1992). . . . . . . . . . . . . . . . . . . . passim

7
Johnstone v. State, 22 S.W.3d 408 (Tex. 2000). . . . . . . . . . . . . . . . . 54, 55

King v. Harris County Flood Control Dist., 210 S.W.2d
438 (Tex. Civ. App.–Galveston 1948, writ ref’d n.r.e.).. . . . . . . . . . . . . . . 27

Khyber Holdings, LLC v. HSBC Bank USA, Nat.
Ass’n., No. 05-12-01212, 2014 WL 1018195
(Tex. App.–Dallas Mar. 5, 2014, no pet.) (mem. op.) . . . . . . . . . . . . . . . . 42

Matador Pipelines, Inc. v. Watson, 626 S.W.2d
139 (Tex. Civ. App.–Waco 1981, writ ref’d n.r.e.) .. . . . . . . . . . . . . . . . . . 26

McIntyre v. Lucker, 13 S.W. 1027 (Tex. 1890). . . . . . . . . . . . . . . . . . . . . 26

Missouri Pac. R. Co. v. Cross, 501 S.W.2d 868
(Tex. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

N.N. v. Institute for Rehabilitation and
Research, 234 S.W.3d 1 (Tex. App.–Houston
[1st Dist.] 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Northeast Texas Staffing v. Ray, 330 S.W.3d 1
(Tex. App.–Texarkana 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Oncor Electric Delivery Company LLC v. Schunke,
No. 04-13-00067, 2013 WL 6672494 (Tex. App.–
San Antonio Dec. 18, 2013, pet. dism’d).. . . . . . . . . . . . . . . . . . . 36, 37, 38

8
Pearson v. State, 315 S.W.2d 935 (Tex. 1958).. . . . . . . . . . . . . . . . . . . . 32

Roccaforte v. Jefferson Cnty., 341 S.W.3d 919
(Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41, 51

Schepps v. Presbyterian Hosp. of Dallas, 652
S.W.2d 934 (Tex. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

State v. Blackstock, 879 S.W.2d 125 (Tex. App.–
Houston [14th Dist.] 1994, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 29

State v. Garland, 963 S.W.2d 95 (Tex. App.–
Austin 1998, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32, 37, 51

State v. Texas Titan Land Dev., Inc., 468 S.W.3d
705 (Tex. App.–Houston [1st Dist.] 2015, pet. filed). . . . . . . . . . . . . . . . . . 45

Texas Dept. of Transp. v. A.P.I. Pipe and Supply,
LLC, 397 S.W.3d 162 (Tex. 2013). . . . . . . . . . . . . . . . . . . . . . . . 35, 36, 50

Villasan v. O'Rourke, 166 S.W.3d 752 (Tex.
App.–Beaumont 2005, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Walling v. State, 394 S.W.2d 38 (Tex. Civ. App.–
Waco 1965, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Washington v. Related Arbor Court, LLC,
357 S.W.3d 676 (Tex. App.–Houston
[14th Dist.] 2011, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

9
Williams v. Henderson County Levee
Improvement Dist. No. 3, 59 S.W.2d 93
(Tex. Comm’n App. 1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wood v. Bird, 32 S.W.2d 271 (Tex. Civ. App.–
El Paso 1930, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

RULES AND STATUTES:

Tex. Civ. Prac. & Rem. Code § 89.041. . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Tex. Gov’t. Code § 22.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Tex. Gov’t. Code § 22.004(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Tex. Gov’t Code § 311.025. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Tex. Gov’t Code § 312.014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Tex. Prop. Code Chapter 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 52

Tex. Prop. Code § 21.011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Prop. Code § 21.0113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

10
Tex. Prop. Code § 21.012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Prop. Code § 21.012(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Tex. Prop. Code § 21.013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Prop. Code § 21.014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30

Tex. Prop. Code § 21.015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30

Tex. Prop. Code § 21.016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Prop. Code § 21.018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 45, 56

Tex. Prop. Code § 21.018(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Prop. Code § 21.018(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Prop. Code § 21.049. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. Prop. Code § 21.061. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Tex. R. App. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Tex. R. App. P. 9.4(i)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

11
Tex. R. App. P. 38.2(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17

Tex. R. Civ. P. 21(f)(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 53, 56

Tex. R. Civ. P. 296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

12
 STATEMENT REGARDING ORAL ARGUMENT
(TEX. R. APP. P. 38.2(a)(1)(B))

The appeal presents important issues of statutory interpretation in the

eminent domain/condemnation context. Oral argument will assist this Court

in analyzing the pertinent provisions of the Texas Property Code which govern

the timely filing of objections to the award of special commissioners after that

award is filed with the district court.

13
 RECORD AND PARTY REFERENCES

Appellee John Ashcraft, Individually and as Trustee for the John Ashcraft

Family Trust 2012 is referred to in the Brief of Appellee as “Mr. Ashcraft.”

Appellant Copano NGL Services, LLC is referred to in the Brief of

Appellee as “Copano.”

The original clerk’s record is 1 volume and was filed in the Court of

Appeals on August 4, 2015. References in the Brief of Appellee to the 1

volume original clerk’s record are shown as (“CR ____”) with the page number

of the clerk’s record in parentheses.

A supplemental clerk’s record was filed in the Court of Appeals on

August 27, 2015. References in the Brief of Appellee to the 1 volume

supplemental clerk’s record filed on August 27, 2015, are shown as (“8-27-

2015 Supp. CR ____”) with the page number of the supplemental clerk’s

record in parentheses.

A second supplemental clerk’s record was filed in the Court of Appeals

on September 16, 2015. References in the Brief of Appellee to the second

supplemental clerk’s record filed on September 16, 2015, are shown as (“9-16-

2015 Supp. CR ____”) with the page number of the second supplemental

clerk’s record in parentheses.

14
 There is no reporter’s record.

The trial court signed Findings of Fact and Conclusions of Law on

August 10, 2015. (8-27-2015 Supp. CR 17-22) References in the Brief of

Appellee to these findings and conclusions are referred to as (“FF ____”) and

(“CL ____”) with the specifically numbered finding/conclusion in parentheses.

15
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Appellee John Ashcraft, Individually and as Trustee for the John Ashcraft

Family Trust 2012 (“Mr. Ashcraft”) files his brief of Appellee and requests that

this Court affirm the June 24, 2015, final judgment rendered in his favor. (CR

151-186)

INTRODUCTION AND OVERVIEW

Appellant COPANO NGL SERVICES, LLC (“Copano”) sought to

condemn property owned by Appellee Ashcraft. (CR 4-23) The Special

Commissioners appointed by the district court made an award to Mr. Ashcraft

of $1,043,830.00 on April 21, 2015. (CR 31-34) On the same date, Copano

filed the award with the district court. (CR 29-59) On the same date, the

district clerk sent notice of this filing of the award to Copano by e-mail. (8-27-

2015 Supp. CR 18; FF 7, 8 and 9)

Pursuant to Tex. Prop. Code Section 21.018(a), the statutory deadline

to file objections to the award of the Special Commissioners was May 18,

2015, the first Monday following the 20th day after the day the award was filed

with the Court. Copano filed its objection on May 19, 2015, which was

untimely. (CR 91-92) Because Copano did not timely file its objection to the

award of the Special Commissioners, the district court properly rendered

16
judgment for Mr. Ashcraft by adopting the award of the Special Commissioners

pursuant to Tex. Prop. Code Section 21.061. (CR 151-186)

STATEMENT OF FACTS
(Tex. R. App. P. 38.2(a)(1)(B))

Appellant COPANO NGL SERVICES, LLC (“Copano”), filed via e-file its

Petition for Condemnation on March 4, 2015, seeking to condemn property

owned by Mr. Ashcraft. (CR 4-23)

An Order Appointing Special Commissioners was signed on March 16,

2015. (CR 24-25) An Order Striking Special Commissioner and Replacing

With First Alternate was signed on April 1, 2015. (CR 26-28, 212)

On April 21, 2015, the Special Commissioners made an award to Mr.

Ashcraft of one million forty-three thousand eight hundred thirty dollars

($1,043,830.00). (CR 31-34)

Copano offered to file the award of the Special Commissioners with the

district clerk. (8-27-2015 Supp. CR 18; FF 5)

Copano filed the Special Commissioners’ Award with the district clerk via

e-file on April 21, 2015. (CR 29-59) See also Appellant’s Brief, p. 4 (“On the

day the special commissioners issued their award, April 21, 2015, Copano

electronically filed the award with the district clerk (CR:29).”); Copano’s

Response to Motion for Entry of Judgment (CR 115) (“On April 21, 2015, the

17
Special Commissioners conducted their hearing in this matter. That same day,

Copano filed the Award of Special Commissioners with the Court.”).

Copano received notice of its filing electronically on April 21, 2015, from

the Matagorda County District Clerk. (8-27-2015 Supp. CR 18; FF 7) Copano

had notice of the filing of the Special Commissioners’ award on April 21, 2015.

(8-27-2015 Supp. CR 18; FF 8) The Matagorda County District Clerk sent

notice of the decision by the Special Commissioners to counsel for Copano

and Mr. Ashcraft by e-mail on April 21, 2015, and counsel for Copano and Mr.

Ashcraft received such e-mail notice on April 21, 2015. (8-27-2015 Supp. CR

18; FF 9)

The deadline to file timely objections to the Award of Special

Commissioners was May 18, 2015. (8-27-2015 Supp. CR 19; CL 2) See Tex.

Prop. Code Section 21.018(a).

Copano filed its Objection to the Award of Special Commissioners on

May 19, 2015. (CR 91-92) Copano’s objection was untimely under Tex. Prop.

Code Section 21.018(a). (8-27-2015 Supp. CR 19; CL 3,5)

The district clerk mailed copies of the Award of Special Commissioners

to John Ashcraft (personally, not through his attorney) and to Copano through

its counsel on May 27, 2015, which was after Copano filed its objection. (CR

18
93). See also Copano Response to Motion for Entry of Judgment (CR 116,

125-150).

Mr. Ashcraft filed Defendants’ Motion for Entry of Judgment on June 9,

2015, asserting that Mr. Ashcraft was entitled to judgment in accordance with

Section 21.061 of the Texas Property Code because no timely objection was

made to the findings of the Special Commissioners by May 18, 2015. (CR 94-

97)

The trial court conducted a hearing on June 15, 2015. (CR 212; 8-27-

2015 Supp. CR 17)

On June 24, 2015, the district court signed a final judgment in favor of

Mr. Ashcraft. (CR 151-186) Mr. Ashcraft requested that the district court

make findings of fact and conclusions of law on July 9, 2015. (CR 201-204)

The district court signed findings of fact and conclusions of law on August 10,

2015. (8-27-2015 Supp. CR 17-22)

STANDARD OF REVIEW

The review of the trial court’s June 24, 2015, final judgment (CR 151-

186) is de novo.

SUMMARY OF RESPONSIVE ARGUMENTS

The final judgment signed by the trial court on June 24, 2015, was

19
properly rendered in accordance with Section 21.061 of the Texas Property

Code, following a hearing conducted on June 15, 2015. The findings of fact

made by the trial court were proper and based on stipulations of the parties at

the June 15, 2015, hearing conducted in this case and the trial court’s judicial

notice of the district clerk’s file in this matter.

The statutory deadline in this case to file timely objection to the findings

of the Special Commissioners was May 18, 2015. See Tex. Prop. Code

Section 21.018(a). Copano admitted to notice of the filing of the Special

Commissioners’ award with the Matagorda County District Clerk and to

knowledge of the statutory deadline to file objections to the findings of the

Special Commissioners. (8-27-2015 Supp. CR 19; CL 4)

Copano did not timely file an objection to the findings of the Special

Commissioners by May 18, 2015, and intentionally waited until after May 18,

2015, to file its objection, to see if Mr. Ashcraft intended to object to the

findings of the Special Commissioners. (8-27-2015 Supp. CR 19; CL 5)

The trial court properly rendered judgment for Mr. Ashcraft by adopting

the award of the Special Commissioners as required by Tex. Prop. Code

Section 21.061.

Copano claims that Mr. Ashcraft “sought to inject new legal theories after

20
judgment was entered.” See Appellant’s Brief, p.6 (emphasis Copano’s). Mr.

Ashcraft’s arguments in the trial court and on appeal are the same – the trial

court properly rendered final judgment for Mr. Ashcraft in accordance with Tex.

Prop. Code Section 21.061 because Copano did not file a timely objection to

the Award of Special Commissioners pursuant to Tex. Prop. Code Section

21.018(a).

On page 7 of the Appellant’s Brief, Copano falsely accuses the trial court

of a “series of errors [that] has denied Copano access to the courts and due

process guaranteed by our Constitution and statutes, as consistently

interpreted by our Supreme Court. It requires swift reversal.” These

arguments are not only legally erroneous, they are grossly disrespectful to the

trial court. The objection deadline to file a timely objection to the special

commissioners’ award is unambiguously and undisputedly tied to the date of

the filing of the award with the trial court. See Tex. Prop. Code Section

21.018(a). It is equally undisputed that Copano had actual notice and actual

knowledge of that filing date because Copano filed the award with the court

and received an e-filed copy of the filing. (8-27-2015 Supp. CR 18-19; FF 4-9,

CL 4-5) The trial court’s conclusion that Copano’s objection deadline was not

tolled under the circumstances of this case does not implicate – even

21
marginally – issues of constitutional access to the court or due process.

Throughout its brief, Copano characterizes Tex. Prop. Code Section

21.049 as “a jurisdiction-tolling statute”. See e.g. Appellant’s Brief, p.7.

Simply not true. Section 21.049 says nothing about tolling. It only discusses

the clerk’s mailing of notice of the special commissioners’ award. Tolling of

the objection deadline is a judicial, not a statutory, construct, and was imposed

in John v. State, 826 S.W.2d 138, 140-41 (Tex. 1992), because the

landowners had no notice of the filing of the special commissioners’ award and

no notice that their objection deadline had begun. Those facts are not present

in this case.

RESPONSIVE ARGUMENTS

I. Copano’s Objection To The Special Commissioners’ Award Was
Not Timely Filed (Responsive to Copano’s Appellant’s Brief, pp. 7-
15)

A. Introduction And Overview

The Legislature has decided that in eminent domain/condemnation

proceedings the deadline to object to the award of special commissioners is

tied to the filing of the award with the district court. See Tex. Prop. Code

Section 21.018(a). This provision is entitled “Appeal from Commissioners’

Findings” and requires the filing of a written objection with the court that has

22
jurisdiction over the eminent domain proceeding. This objection “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 Section

21.018(a). (emphasis supplied) If no timely objection is filed, as in this case,

the Court must adopt the special commissioners’ award as the judgment of the

Court. See Tex. Prop. Code Section 21.061.

It is an extraordinary step for a court to override the Legislature’s express

jurisdictional deadline for appealing an administrative decision. In John v.

State, the Supreme Court did so for landowners who had received no notice

that a condemnation award had been filed with the court, as any other result

would have raised serious constitutional and due process concerns about the

condemnation taking. See John v. State, 826 S.W.2d 138, 140-41 (Tex.

1992). Copano relies on the decision in John v. State to argue that its

deadline to file an objection was tolled until the district clerk mailed Copano a

copy of the award by certified mail pursuant to Tex. Prop. Code Section

21.049. The district clerk did not mail notice of the Award of Special

Commissioners to Mr. Ashcraft and Copano until May 27, 2015 (CR 93), which

was well after Copano filed its objection to the Award on May 19, 2015 (CR 91-

92). The facts support the trial court’s finding that Copano was aware of its

23
objection deadline and intentionally waited to May 19, 2015, to file its objection

in order to see if Mr. Ashcraft intended to object to the Award. (8-27-15 Supp.

CR 19; CL 4,5).

Unlike John v. State, the issue in this case is not whether the

condemnor, Copano, had or received actual notice of the filing of the special

commissioners’ award with the court. Copano itself filed the award with the

court and the clerk served a copy of the award filed by Copano on Copano and

Mr. Ashcraft. (CR 29-59; 8-27-2015 Supp. CR 18-19; FF 7,8 and 9; CL 4).

Copano had actual notice and knowledge of the Special Commissioners’

award and its filing with the court.

The issue this Court must resolve is – in the face of the condemnor’s

admitted actual notice and knowledge of the filing of the Special

Commissioners’ award with the trial court – whether a clerk’s failure to use a

particular method of service is so essential to the administrative scheme that

courts should countermand the Legislature’s explicit jurisdictional deadline for

appealing special commissioners’ awards in condemnation cases, which

deadline is based on the filing of the award with the court, not on service of the

award by the clerk.

Numerous Texas appellate courts have uniformly held that the particular

24
methods of service specified in a statute are immaterial so long as notice

actually occurs. Copano had actual notice and knowledge of the filing of the

Special Commissioners’ award with the court because Copano itself filed the

award. (CR 29-59; 8-27-2015 Supp. CR 18-19; FF 7,8 and 9; CL 4). Copano’s

arguments destabilize property rights and encourage procedural unfairness

against landowners in condemnation cases.

B. Statutory Construction In Eminent Domain/Condemnation
Cases

Texas Property Code Chapter 21 is entitled “Eminent Domain.” The

exercise of eminent domain authority is governed by Sections 21.012 through

21.016 of the Texas Property Code. See Texas Property Code Section

21.011. An eminent domain action is a statutory cause of action;

condemnation is a process created entirely by statute. See Duncan v.

Calhoun County Navigation District, 28 S.W.3d 707, 709 (Tex. App.–Corpus

Christi 2000, pet. denied) (“A proceeding in condemnation is a unique type of

lawsuit, created entirely by statute.”); AVM-Hou, Ltd. v. Capital Metropolitan

Transp. Authority, 262 S.W.3d 574, 578 (Tex. App.–Austin 2008, no pet.); City

of Carrollton v. Singer, 232 S.W.3d 790, 797 (Tex. App.–Fort Worth 2007, pet.

denied).

In this case, the entity exercising eminent domain power is Copano. The

25
protection afforded citizens by the Texas Constitution against the exercise of

condemnation is liberally construed and the statutes governing the exercise

of eminent domain power are strictly construed in favor of the landowner and

against the entity exercising that power. See McIntyre v. Lucker, 13 S.W.

1027, 1028 (Tex. 1890); Byrd Irr. Co. v. Smythe, 146 S.W. 1064, 1065-66

(Tex. Civ. App.–San Antonio 1912, no writ); Wood v. Bird, 32 S.W.2d 271, 273

(Tex. Civ. App.–El Paso 1930, no writ).

The rule that condemnation statutes must be strictly followed is for the

benefit of the landowner. See City of Bryan v. Moehlman, 282 S.W.2d 687,

690 (Tex. 1955) (“We recognize the rule expressed in Wilbarger County v.

Hall, Tex. Com. App., 55 S.W.2d 797 and other cases cited by respondents

that in condemnation proceedings the requirements of the statutes are to be

strictly followed. This rule is for the benefit of the landowner. Here the statute

was strictly complied with in all respects in so far as the protection of the

landowner was concerned.”); 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.”); Matador Pipelines, Inc. v.

Watson, 626 S.W.2d 139, 140 (Tex. Civ. App.–Waco 1981, writ ref’d n.r.e.)

26
(“The rule is that in condemnation proceedings the requirements of the

statutes are to be strictly followed, and such rule is for the benefit of the

landowner.”).

In Clower v. Fannin-Lamar-Delta Counties Levee Imp. Dist. No. 3, 39

S.W.2d 831, 833 (Tex. Comm’n App. 1931, holding approved), the

Commission of Appeals explained that with respect to matters of

compensation and remedy, eminent domain/condemnation statutes must be

liberally construed in favor of the landowner.

Proceedings to condemn property for public use are special in
character, and their validity must depend upon a strict compliance
by the condemning authority, with the law authorizing them. ...
But, as to compensation and remedy, they should be liberally
construed in favor of the property owner.

(emphasis supplied)

See also Williams v. Henderson County Levee Improvement Dist. No. 3,

59 S.W.2d 93, 96 (Tex. Comm’n App. 1933); City of Houston v. Derby, 215

S.W.2d 690, 693 (Tex. Civ. App.–Galveston 1948, writ ref’d); King v. Harris

County Flood Control Dist., 210 S.W.2d 438, 440 (Tex. Civ. App.–Galveston

1948, writ ref’d n.r.e.); Coastal States Gas Producing Co. v. Pate, 309 S.W.2d

828, 831 (Tex. 1958); Burch v. City of San Antonio, 518 S.W.2d 540, 544-45

(Tex. 1975); Hicks v. Texas Municipal Power Agency, 548 S.W.2d 949, 953-54

27
(Tex. Civ. App.–Houston [14th Dist.] 1977, writ ref’d n.r.e.); John v. State, 826

S.W.2d at 140; City of Blue Mound v. Southwest Water Co., 449 S.W.3d 678,

685-686 (Tex. App.–Fort Worth 2014, no pet.).

The principal authority that Copano, the condemnor, relies upon is the

Texas Supreme Court’s decision in John v. State, which case involved

landowners who had no notice or knowledge of the filing of the special

commissioners’ award with the court. The Supreme Court discussed the issue

of statutory interpretation in eminent domain/condemnation cases as follows:

Second, 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. 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. See Rotello v. Brazos County Water
Control & Improvement Dist., 574 S.W.2d 208, 212 (Tex. Civ.
App.–Houston [1st Dist.] 1978, no writ). See also Coastal Indust.
Water Auth., 592 S.W.2d at 599; Walling v. State, 394 S.W.2d 38,
40 (Tex. Civ. App.–Waco 1965, writ ref’d n.r.e.).

John v. State, 826 S.W.2d at 140. The proper statutory interpretation in this

case mandates affirmance of the trial court judgment in favor of Mr. Ashcraft,

the landowner.

C. The Condemnation Process And Its Deadlines

The condemning entity that seeks to acquire property for a public use is

28
first required to make a bona fide offer to acquire the real property from the

owner. See Tex. Prop. Code Section 21.0113. Copano claims to have

complied with this provision in paragraph 23 of Plaintiff’s Original Statement

and Petition for Condemnation. (CR 13)

If the condemning entity cannot reach an agreement with the landowner,

the condemning entity “may begin a condemnation proceeding by filing a

petition in the proper court.” See Tex. Prop. Code Section 21.012(a); Amason

v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984). Copano filed

its petition in the district court on March 4, 2015. (CR 4-23) Despite the fact

that Section 21.012(a) authorizes the filing of a condemnation proceeding, the

case remains in the administrative phase at this point. Amason, 682 S.W.2d

at 242. See State v. Blackstock, 879 S.W.2d 125, 126-127 (Tex.

App.–Houston [14th Dist.] 1994, writ denied) (“From the time the condemnor

files the original statement or petition seeking condemnation, until the time of

the special commissioners’ award, the proceeding is administrative in nature

... If there is dissatisfaction with the special commissioners’ award, either

party may timely file objections in the appropriate court. Tex. Prop. Code Ann.

§ 21.018(a). Upon the filing of the objections, the special commissioners’

award is vacated and the administrative proceeding converts into a normal

29
judicial cause in the civil court.”).

The court in which the condemnation petition is filed is required to

appoint special commissioners, who are three disinterested real property

owners who reside in the County, with provisions for each party to strike one

of the appointed commissioners. See Tex. Prop. Code Section 21.014. The

district court signed the Order Appointing Special Commissioners on March

16, 2015. (CR 24-25)

The special commissioners are required to schedule a hearing “promptly”

to assess damages. See Tex. Prop. Code Section 21.015. The Special

Commissioners conducted their hearing and issued their award on April 21,

2015. (CR 31-34)1 Copano filed the Award of Special Commissioners with the

district court on April 21, 2015. (CR 29-59; 8-27-2015 Supp. CR 18; FF 6)

Condemnors typically file documents in the trial court for the special

commissioners (as Copano did in this case). See State v. Garland, 963

S.W.2d 95, 99 (Tex. App.–Austin 1998, pet. denied) (“Section 21.048 places

the burden of filing the commissioners’ decision in court on the commissioners

themselves. We are informed, however, that a representative of the

1
Condemnation statutes use the terms “findings,” “award,” and “decision” interchangeably
to refer to the special commissioners’ award. State v. Garland, 963 S.W .2d 95, 96 n. 1 (Tex.
App.–Austin 1998, pet. denied).

30
condemnor typically offers to carry out the actual filing of the document, and

that such offer is usually accepted by the commissioners. We see no reason

why the commissioners may not authorize another person, including a party

to the proceeding, to fulfil this responsibility.”).

D. Timely Objections To The Special Commissioners’ Award

“For more than 150 years, the Legislature has prescribed a thorough and

consistent condemnation procedure.” City of Dallas v. Stewart, 361 S.W.3d

562, 567 (Tex. 2012). If an objection is made to the decision or award of the

special commissioners, the district court determines the value of the

condemned property de novo in the same manner as other civil cases. Id;

See also Tex. Prop. Code Section 21.018(b) (“If a party files an objection to

the findings of the special commissioners, the court shall cite the adverse party

and try the case in the same manner as other civil actions.”).

The filing of timely objections to the special commissioners’ award is the

lynchpin of that procedure. Id. Section 21.018(a) of the Texas Property Code

fixes the objections deadline as “the first Monday following the 20th day after

the day the commissioners file their findings with the court.” Tex. Prop. Code

Section 21.018(a). This objection deadline is tied to the filing of the award with

court, not to notice of the award provided by the district clerk. “The use of the

31
filing of the decision as the starting point for filing objections has remained

unchanged for more than a century. ... The amount of time allowed to file

objections has been enlarged over the years, and the decision is now filed with

the trial court rather than the county judge, but the starting point for computing

the deadline has remained the same: the date of filing.” State v. Garland, 963

S.W.2d at 99.

The timely filing of objections to the findings of the special

commissioners converts an “administrative” matter into a judicial one. City of

Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006). Without timely objections

being filed to the award of the special commissioners, the trial court does not

have jurisdiction to entertain an “appeal” of the special commissioners’ award

and must instead terminate the case by rendering judgment “on the award” as

a matter of ministerial duty. Pearson v. State, 315 S.W.2d 935, 938 (Tex.

1958).

The Legislature has codified the principle described above in Property

Code Section 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 ...” Tex. Prop. Code Section 21.061. (emphasis

32
supplied)

Under a plain reading of Property Code Section 21.018(a), Copano filed

its objections late. That should be the end of this matter. Sections 21.018(a)

and 21.061 of the Texas Property Code limit the jurisdiction of the trial court

when timely objections to the special commissioners’ award are not filed. The

Legislature has chosen not to create any statutory exceptions to the operation

of Sections 21.018(a) and 21.061.

E. Texas Property Code Section 21.049 And John v. State

The Legislature realized that the statutory condemnation scheme and

deadlines could prejudice landowners who did not know that their objection

clock had started to run, so the Legislature enacted Section 21.049 to ensure

that landowners received notice of the triggering event for the filing of their

objection. Texas Property Code Section 21.049 provides as follows:

Not later than the next working day after the day the [Special
Commissioners’] decision is filed, the clerk shall send notice of the
decision by certified or registered United States mail, return receipt
requested, to the parties in the proceeding, or to their attorneys of
record, at their addresses of record.

The Legislature enacted Section 21.049 to ensure that landowners

received notice of the triggering event to file objections to the findings of the

special commissioners. See John v. State, 826 S.W.2d 138, 140-41 (Tex.

33
1992). Section 21.049 is not designed to alter the operation of Sections

21.018 and 21.061, but instead to ensure that landowners know when the

period has started in order to timely object. Id. Given Section 21.049’s limited

purpose, the Supreme Court has recognized only one circumstance in which

the operation of the jurisdiction-limiting provisions in Sections 21.018 and

21.061 may be modified. When landowners have no notice of the filing of a

special commissioners’ award with the court, their objections deadline is tolled

until the court clerk sends notice. John, 826 S.W.2d at 140.

In this regard, the Supreme Court stated in John v. State that Section

21.049 of the Property Code is a condemnation statute procedure that “must

be strictly followed and its protections liberally construed for the benefit of the

landowner.” Id. at 140. (emphasis supplied) In holding in John v. State that

the objection deadline for the landowner was tolled because the landowner

had no notice of the filing of the award with the district court, the Supreme

Court explained as follows:

In contrast to rule 239a, this section 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.

###

Thus, notice of the condemnation hearing is not sufficient notice

34
 that the landowners’ time to object to the condemnation award has
begun to run. 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.5

5. If objections are not filed timely, the trial court
can only perform its ministerial function and render
judgment based upon the commissioner’s award. See
Pearson, 315 S.W.2d at 938. However, the clerk’s
failure to send notice tolls the landowner’s time to
object.

John v. State, 826 S.W.2d at 140-141 and n. 5. (emphasis supplied)

John v. State did not involve any request for tolling by the condemnor

and did not involve the factual situation present in this case where the

condemnor had actual knowledge of the filing of the special commissioners’

award with the district court and received an e-filed copy of the award from the

district clerk.

On page 9 of its brief, Copano relies on a footnote in Texas Dept. of

Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162, 167 n. 18 (Tex.

2013), to argue that after John v. State, the Supreme Court “subsequently

made clear that the ‘time for making objections’ that trigger the trial court’s

jurisdiction is tolled ‘if the parties are not given proper notice’ as required by

Section 21.049.” (emphasis in Copano brief) The decision relied upon by

35
Copano is not a statutory condemnation case. The case involves a claim of

inverse condemnation and the legal effect of final judgments rendered in 2003

and 2004 on claims of title. There is nothing in A.P.I. Pipe and Supply that is

remotely similar to the fact situation present in this case where the

condemning entity had actual notice of the filing of the award of the special

commissioners because the condemnor filed it with the court and received a

file-stamped copy of the filing.

F. Oncor Electric Delivery Co. v. Schunke

The other principal authority relied upon by Copano is the unreported

decision of the Fourth Court of Appeals in Oncor Electric Delivery Company

LLC v. Schunke, No. 04-13-00067, 2013 WL 6672494 (Tex. App.–San Antonio

Dec. 18, 2013, pet. dism’d) (mem. op.), where the Fourth Court extended the

tolling of objection holding of John v. State to the condemnor, even though the

condemnor filed the special commissioners’ award with the court and obtained

a file-stamped copy from the clerk. The decision in Oncor Elec. Delivery v.

Schunke is not binding on this Court and should not be followed by this Court.

The Fourth Court of Appeals relied upon an introductory statement in the

first paragraph of the John v. State opinion where the Supreme Court stated

that “a majority of this Court holds that, in a condemnation proceeding, the

36
parties’ 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.” See Oncor Elec. Delivery v. Schunke, 2013 WL 6672494 at

* 3, quoting John v. State, 826 S.W.2d at 139. The Fourth Court of Appeals

ignored the three times thereafter in John v. State where the Supreme Court

described Texas Property Code Section 21.049 as requiring tolling of the

objection deadline for the landowner. See John v. State, 826 S.W.2d at 140,

141 and n. 5.

The Fourth Court of Appeals also cited to the decision in State v.

Garland, 963 S.W.2d at 101 in support of its extension of John v. State to the

condemnor. Oncor Elec. Delivery v. Schunke, 2013 WL 6672494 at * 3. But,

the discussion from State v. Garland relied upon by the Fourth Court of

Appeals is dicta because the Court in State v. Garland concluded that “we

need not apply an equitable doctrine such as tolling.” 963 S.W.2d at 101.

The Fourth Court of Appeals’ decision in Oncor Elec. Delivery Co v.

Schunke is flawed and wrong because it holds that the unambiguous language

and clarity of Section 21.049 overrides the legal principle that condemnation

statutes are to be liberally construed for the benefit of the landowner. Oncor,

2013 WL 6672494 at * 3. Section 21.049 is undoubtedly clear and

37
unambiguous. But, Section 21.049 does not address what should happen

when the clerk fails to comply with the mailing obligation described in the

statute. It is completely silent in this regard. The tolling of the objection

deadline in John v. State was judicially imposed and was not based on any

language in Section 21.049 because there is nothing in Section 21.049 which

addresses or provides for tolling. Because Section 21.049 does not address

tolling, the trial court in this case properly applied the liberal statutory

construction principles in holding that the judicially imposed tolling rule from

John v. State did not apply to benefit the condemning entity, Copano, where

it had knowledge of the filing of the award because Copano filed the award

and received a file-stamped copy.

The landowner in Oncor Elec. Delivery v. Schunke sought petition for

review in the Supreme Court. The Supreme Court requested a response and

the case settled shortly thereafter. This Court should decline to follow the

reasoning and holding of the Fourth Court of Appeals in Oncor Elec. Delivery

v. Schunke.

G. Reasonable Strictness And Actual Notice

On page 2 of its brief, Copano argues that Section 21.049 of the Texas

Property Code “must be strictly complied with ....”. The Supreme Court

38
actually concluded that the applicable standard was “reasonable strictness”.

The Supreme Court in John stated that: “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.” John, 826 S.W.2d at 141 n. 4.

(emphasis supplied) E-mail notice of the award of the Special Commissioners

to counsel for Copano and Mr. Ashcraft by the Matagorda County District Clerk

on April 21, 2015, complied with Texas Property Code Section 21.049. Texas

Rule of Civil Procedure 21(f)(10) provides as follows: “(10) Electronic Notices

From the Court. The clerk may send notices, orders, or other communications

about the case to the party electronically. A court seal may be electronic.”

The notice of the award of the Special Commissioners provided by the

Matagorda County District Clerk by e-mail on April 21, 2015, followed Section

21.049 with reasonable strictness. Further, there was actual notice and

knowledge by Copano of the filing of the award with the district court. See

Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 926-27 (Tex. 2011) (holding

that hand-delivered notice satisfies a statute’s notice requirement even when

the statute’s plain language requires notice by certified or registered mail).

In Roccaforte v. Jefferson County, the Supreme Court construed Tex.

Civ. Prac. & Rem. Code Section 89.041, which required notice by registered

39
or certified mail on the county judge and the county or district attorney by a

person suing a county. The plaintiff in that case provided notice by personal

service, rather than by mail. The Supreme Court found that there was

substantial compliance with the statute and emphasized the County’s actual

knowledge of the claim.

Roccaforte provided timely notice of every item required by section
89.0041, and the requisite officials received that notice. Did the
Legislature intend to bar Roccaforte’s claim, merely because that
notice was hand-delivered rather than mailed?

Roccaforte argues that the County’s actual notice of the suit and
his substantial compliance with section 89.0041 should suffice. A
number of courts of appeals (though not the court of appeals in
this case) agree with him. The County disagrees, arguing that the
statute requires strict compliance with its terms, and dismissal is
mandated if those terms are not satisfied.

Section 89.0041 ensures that the appropriate county officials are
made aware of pending suits, allowing the county to answer and
defend the case. See Howlett, 301 S.W.3d at 846 (“The apparent
purpose of section 89.0041 is to ensure that the person
responsible for answering and defending the suit–the county or
district attorney-has actual notice of the suit itself.”); Coskey, 247
S.W.3d at 757 (“Section 89.0041's notice of suit requirement
against a county serves the purpose of aiding in the management
and control of the City’s finances and property ....”). That purpose
was served here–the county judge and the district attorney had
notice within fifteen days of Roccaforte’s filing, and they answered
and defended the suit. Cf. Loutzenhiser, 140 S.W.3d at 360
(observing that “if in a particular case a governmental unit were not
prejudiced by lack of notice and chose to waive it, we do not see
how the statutory purpose would thereby be impaired”). The
statute was not intended to create a procedural trap allowing a

40
 county to obtain dismissal even though the appropriate officials
have notice of the suit. See Southern Surety Co. v. McGuire, 275
S.W. 845, 847 (Tex. Civ. App.–El Paso 1925, writ ref’d) (holding
that failure to present written claim to commissioners’ court as
required by statute did not bar the claim, because “[t]he purpose
of the statute was fully accomplished by [oral presentment]”); See
also Coskey, 247 S.W.3d at 757 (“The manner of delivery
specified by the statute assures that county officials will receive
notice of a suit after it has been filed to enable it to respond timely
and prepare a defense.”). Because those officers had the
requisite notice, we conclude that the trial court erred in dismissing
Roccaforte’s claims.

Roccaforte, 341 S.W.3d at 926-927.

See also Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936

(Tex. 1983), quoting Chisolm v. Bewley, Mills, 287 S.W.2d 943, 945 (Tex.

1956) (“Provisions [of a notice statute] which are not of the essence of the

thing to be done, but which are included for the purpose of promoting the

proper, orderly and prompt conduct of business, are not generally regarded as

mandatory.”).

A notice statute calling for delivery by registered or certified mail can be

satisfied by an alternative method of service. In Washington v. Related Arbor

Court, LLC, 357 S.W.3d 676, 681 (Tex. App.–Houston [14th Dist.] 2011, no

pet.), the Fourteenth Court of Appeals discussed this issue, collecting

numerous cases:

Our position is consistent with a wide range of Texas cases

41
 holding that “statutory notice requirements may be satisfied by a
method of service other than the prescribed statutory method
when the recipient acknowledges receipt and therefore has the
actual notice the statutory requirement is intended to guarantee.
See, e.g., Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex.
2011) (holding county officials’ acknowledgment of hand-delivered
notice satisfied statute’s “requisite notice” even though statute
required notice to be delivered by certified or registered mail);
Goforth v. Bradshaw, 296 S.W.3d 849, 851 (Tex. App.–Texarkana
2009, no pet.) (holding expert reports and CVs sent by regular mail
within statutory deadline, which defendants acknowledged
receiving, were timely served even though statute required the
documents to be served through registered or certified mail);
Spiegel v. Strother, 262 S.W.3d 481, 486 (Tex. App.–Beaumont
2008, no pet.) (holding the same when plaintiff sent an expert
report and CV by priority mail rather than registered or certified
mail and the doctor acknowledged timely receipt of the mailing);
Netherland v. Wittner, 662 S.W.2d 786, 787 (Tex. App.–Houston
[14th Dist.] 1983, writ ref’d n.r.e.) (holding proper notice was
delivered despite registered-mail requirement when appellant
admitted actual notice of trial setting by phone call and
unregistered mail); Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807
(Tex. Civ. App.–Fort Worth 1966, no writ) (holding failure, if any,
to comply with rules of service and notice were waived in view of
appellants’ appearance and full participation at trial); Parr v. Leal
ex rel. Duval County, 290 S.W.2d 536, 537 (Tex. Civ. App.–San
Antonio 1956, no writ) (admission that notice was sufficient even
though rule required notice be delivered by registered mail).

See also Butler v. Taylor, 981 S.W.2d 742, 743-744 (Tex. App.–Houston

[1st Dist.] 1998, no pet.) (service by express mail rather than by certified mail

as required by statute “fulfilled primary purpose of the statute.”); Northeast

Texas Staffing v. Ray, 330 S.W.3d 1 (Tex. App.–Texarkana 2010, no pet.);

Khyber Holdings, LLC v. HSBC Bank USA, Nat. Ass’n., No. 05-12-01212,

42
2014 WL 1018195 at * 5 (Tex. App.–Dallas Mar. 5, 2014, no pet.) (mem. op.)

(“Although Khyber argues that the petition did not ‘request to redeem’ the

Property and was not sent by certified mail, return receipt requested, as

required by section 209.011 (m), the petition nevertheless expressed HSBC’s

intent to redeem the Property. And Khyber does not deny receipt of the

petition. It acted in response by filing an answer to the lawsuit. ‘[W]hen

dealing with notice requirements, the technicalities of the method of service

are not crucial when the purposes of the notice statute have been satisfied.’

Butler v. Taylor, 981 S.W.2d 742, 743 (Tex. App.–Houston [1st Dist.] 1998, no.

pet. ... Both the September 9 letter and the petition constitute some evidence

of substantial compliance with the requirements of Chapter 209.”).

In the present case, Copano has never affirmatively denied that the clerk

did not serve notice of the filing of the special commissioners’ award on

Copano by e-mail and Copano undisputedly had actual notice and knowledge

of the filing of the award.

H. Copano Misstates Mr. Ashcraft’s Liberal Construction
Arguments

On page 13 of its brief, Copano falsely claims that “ultimately Ashcraft

must rely on liberal construction in favor of the landowner to rewrite both the

Legislature’s clear notice by certified mail requirement in Section 21.049 and

43
the Supreme Court’s consistent interpretation of that requirement.” There is

no case where the Supreme Court has construed Section 21.049 as tolling the

Section 21.018(a) objection deadline where the condemnor has actual

knowledge of the filing of the award because the condemnor filed the award

with the court and received an e-filed copy of that award filing. Copano cites

to several Texas Supreme Court cases, including Crown Life Ins. Co. v. Estate

of Gonzalez, 820 S.W.2d 121, 122 (Tex. 1991), for the proposition that the

goal of liberal construction is to ensure that “the right of appeal should not be

lost due to procedural technicalities”. As Mr. Ashcraft has extensively

discussed, condemnation/eminent domain proceedings are purely statutory in

nature and as to matters of remedies and procedure, the liberal constitution

is afforded to the landowner, not the condemning entity. See pp. 25-28,

herein. And, as previously explained, Section 21.049 does not address tolling

of the deadline to file an objection to the special commissioners’ award.

Tolling is a judicially imposed doctrine, not an issue of statutory construction.

Finally, as the Second Court of Appeals explained in In re Valliance Bank, 422

S.W.3d 722, 728 & n. 3 (Tex. App.–Fort Worth 2012, orig. proceeding), the

reasoning of Crown Life, relied upon by Copano, is not absolute.

Next, on page 14 of its brief, Copano says that Mr. “Ashcraft and the trial

44
court missed the point of why statutes are liberally construed – to ensure

jurisdiction over appeals, not to deny it.” Copano then cites to the decision in

State v. Texas Titan Land Dev., Inc., 468 S.W.3d 705 (Tex. App.–Houston [1st

Dist.] 2015, pet. filed), claiming that the First Court of Appeals held in that case

that “Section 21.018's time requirement is determined by the ‘mandatory’

mailing requirement in Section 21.049, and may not logically reduce the

State’s time to object to an award ....” Simply not true. The First Court of

Appeals in State v. Titan Land Development, Inc. held that Section 21.018

must be enforced by Courts as written – based on the date of filing of the

award.

We are mindful that sections 21.018 and 21.048 speak to the
special commissioners filing the award in the trial court, rather
than the State filing the award. However, Appellees have not cited
authority permitting a court to deviate from section 21.018's
provisions when the party filing the award is the State rather than
the commissioners. Thus, courts must enforce section 21.018 as
it is written, giving either party until the first Monday following the
expiration of 20 days after the commissioners’ award is filed to
object.

468 S.W.3d at 710. (emphasis supplied)

Finally, on page 14 of its brief, Copano relies upon the Supreme Court’s

opinion in Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015),

to argue that liberal construction “must remain grounded in the statute’s

45
language,” liberal construction is not “tantamount to boundless reach” and

liberal construction must yield to “plain and unambiguous language.” Mr.

Ashcraft advocates a grounded, plain and unambiguous interpretation of

Section 21.018(a) – consistent with the case law – that requires that objections

to the award of special commissioners be filed “on or before the first Monday

following the 20th day after the day the commissioners file their findings with

the court.” This is a literal interpretation of the statute. And, Mr. Ashcraft’s

construction of the decision in John v. State – that tolling of the objection

deadline is not warranted where the condemnor has actual knowledge of the

filing, makes the filing of the special commissioners’ award with the court and

receives an e-filed copy of the filing – is entirely consistent with the applicable

standard of construction for condemnation/eminent domain statutes in Texas

– as to compensation and remedy, the statutes must be liberally construed in

favor of the landowner. See pp. 25-28, herein.

I. Copano’s Statutory Interpretation

When a landowner receive no notice of the filing of the special

commissioners’ award, his objection deadline is tolled until the court clerk

sends notice. John, 826 S.W.2d at 140. This tolling remedy is necessary to

prevent a clerical mistake (failure to send notice) from depriving the landowner

46
of his constitutionally protected “single opportunity to recover damages for the

taking of his property.” Id. The tolling remedy is not applicable if the clerk

follows Section 21.049 with “reasonable strictness,” because reasonable

strictness is all that is required to effectuate the statute’s purpose. John, 826

S.W.2d at 141 n. 4.

Copano’s arguments create a new rule that a condemnor’s objection

deadline is tolled by any variance in the particular method of service rendered

under Section 21.049, even where there is actual notice of the filing of the

special commissioners’ award. Copano’s arguments misapply John’s

principles.

In John, the problem was not the particular method of service that the

clerk used to communicate notice of the award; instead, the concern was that

the clerk failed to deliver any notice at all to the landowners “until after the

deadline to object had passed.” Id. at 141. This complete failure to provide

notice and the landowners’ lack of actual knowledge of the filing of the special

commissioners’ award with the court justified a tolling remedy in order to

protect the landowners’ constitutional rights. Id. at 141 n. 4.

Copano seeks to extend John’s tolling remedy to benefit a condemnor

based solely on the fact that the condemnor received timely written notice from

47
the clerk by e-mail rather than by certified mail and despite the fact that

Copano had actual notice of the filing of the Special Commissioners’ award

because Copano filed the award. This result is inconsistent with John’s

reasonable-strictness standard for providing notice: “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.” 826 S.W.2d at 141 n.

4. (emphasis supplied) And, it is inconsistent with the proper construction of

Section 21.018(a), which unambiguously establishes an objection deadline

based on the filing of the special commissioners’ award with the district court.

Copano’s arguments violate settled rules of statutory construction.

Condemnation statutes must not be construed “so woodenly as to reach an

absurd result.” FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston

Sys., 255 S.W.3d 619, 635 (Tex. 2008). Copano’s arguments endorse “a

result the Legislature almost certainly could not have intended.”

Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 135 (Tex. 1994)

(Hecht, J., concurring). The absurd result finds no support in the text of the

Property Code, which specifies no remedy when a clerk delivers notice by e-

mail rather than by mail, but instead fixes the filing of the award as the trigger

for the objection deadline period. Compare Tex. Prop. Code Section 21.049

48
with Sections 21.018(a) and 21.061; see also Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 494 (Tex. 2001) (“When a statute is silent about the

consequences of noncompliance, we look to the statute’s purpose to

determine the proper consequences.”).

Copano’s arguments require court clerks to follow Section 21.049’s

method-of-service provisions with “absolute strictness,” allowing any

procedural variance – no matter how small – to trump the Legislature’s explicit

deadline for filing objections to the special commissioners’ award. This

undermines the Legislature’s policy of promoting certainty and finality in the

administrative phase of statutory condemnation cases. Section 21.049 plays

an important role in the procedural scheme by ensuring that parties get fair

warning of the objections deadline, but it is not meant to arm parties with

technicalities that they can exploit to alter the Property Code’s clear objection

deadline.

Copano injects uncertainty into every proceeding where there is any

disagreement about whether a particular method of service satisfies a statutory

notice requirement.

Copano’s arguments destabilize property rights by injecting uncertainty

into Texas real-estate transactions. Consider a case where the condemnor has

49
actual knowledge of the award, files the award, the clerk fails to mail notice

under Section 21.049 and the condemnor files no objection until months or

years later. In the interim, the original landowner may sell the land to a new

owner; indeed, the land may change hands several times.

If Copano’s reading of Section 21.049 is right, then the period for filing

objections would never begin until certified mail notice from the clerk, and the

condemnor or landowner could still object to the special commissioners’ award

years later.2 This would cast doubt on the validity of every intervening real-

estate transaction involving the land. This offends the important principle that

“Texas legal rules governing real-estate transactions” must be designed to

prevent “uncertainty” and from “subvert[ing] the orderly transfer of property.”

Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 164-65

(Tex. 2013); American Homeowner Preservation Fund, LP v. Pirkle, No. 02-14-

00293-CV, __ S.W.3d __, 2015 WL 5173066 (Tex. App.–Fort Worth Sep. 3,

2015, pet. filed) (rejecting attempts to bypass statutory scheme available to

challenge tax sales, in part, because public policy favors the conveyance of

free and clear title to purchasers at tax sales).

2
This is precisely what Copano argued in the trial court where it contended that despite its
knowledge of the filing of the Special Commissioners’ Award with the Court, the deadline to
object did not begin to run until May 27, 2015, when the clerk sent notice by mail. (CR 117).

50
 Copano’s arguments also facilitate unfairness by providing condemnors

a “procedural trap” to spring on landowners. Roccaforte, 341 S.W.3d at 926.

The practical realities of the condemnation process – and the potential for

abuse – must not be ignored. Condemnors typically file documents in the trial

court for the special commissioners (as Copano did in this case). See State

v. Garland, 963 S.W.2d 95, 99 (Tex. App.–Austin 1998, pet. denied). When

a condemnor files a document on the special commissioners’ behalf, the court

clerk typically hands the condemnor’s agent a file-stamped copy of what was

just filed. Or, under current e-filing practices, the clerk e-mails a stamped copy

to the filer. Under Copano’s construction, a condemnor can toll its deadline

to object to a commissioners’ award in every instance where the clerk fails to

provide certified mail notice. This rewards gamesmanship, since if the

landowner believes it is still bound by the statutory deadline for filing

objections, the condemnor can wait to see whether the landowner accepts the

award before the condemnor makes its own decision about whether to object.

The condemnor gets a free look into the landowner’s willingness to settle for

the amount of the award – a valuable piece of information for future settlement

talks.

The real-world impact of Copano’s arguments turn John v. State on its

51
head, loading the deck in the condemnor’s favor rather than liberally

construing condemnation compensation and remedies for the benefit of

landowners, as Texas law requires. John, 826 S.W.2d at 140.

II. Rule 21's Electronic Filing And Service Provisions Control
(Responsive to Copano’s Appellant’s Brief, pp. 11-13)

Copano makes a series of “no evidence” allegations on pages 11-12 of

its brief claiming that:

1) there is no evidence that the commissioners’ decision was
e-mailed to Copano’s counsel on April 21 and that an
evidentiary hearing would have established that the clerk
has no record of emailing notice,

2) there is no evidence of when or even if the file-marked
award was electronically sent to Copano’s counsel, and

3) that Copano “believes” that the trial court’s electronic docket
would show the “e-filing” was not “accepted” until May 1.

None of these arguments actually refute the state of the record which

demonstrates that Copano itself e-filed the award of the special

commissioners on April 21, 2015, and that the district clerk served a file-

stamped copy on counsel for Copano. (8-27-2015 Supp. CR 18-19, FF 5-9; CL

1-5) Copano objected to Mr. Ashcraft’s proposed findings of fact and

conclusions of law. (8-27-2015 Supp. CR 23-27) Nowhere in these objections

did Copano assert that the proposed fact findings were wrong or untrue.

52
Copano only argued that (1) the facts and conclusions had no purpose and

could not be considered by the Court of Appeals, (2) Mr. Ashcraft was making

new arguments and (3) the findings and conclusions were “legally erroneous”.

Id.

Since Copano had actual notice and knowledge of the filing of the award

and was served an e-mail copy of the filing by the clerk, its deadline to timely

object under Section 21.018(a) was May 18, 2015. Id.

Texas Rule of Civil Procedure 21(f)(10) authorizes “Electronic Notices

From the Court” and provides that “the clerk may send notices, orders, or other

communication about the case to the party electronically.” Copano says on

page 12 of its brief that Tex. R. Civ. P. 21(f)(10) conflicts with the certified mail

requirement in Tex. Prop. Code Section 21.049 and cites to Few v. Charter

Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex. 1971), for the proposition that

“when a rule of the court conflicts with a legislative enactment, the rule must

yield.” Section 21.049 was enacted by the Legislature effective October 2,

1984. Rule 21(f)(10) became effective January 1, 2014. Texas Rule of Civil

Procedure 21(f)(10) controls.

Numerous cases affirm that the Texas Rules of Civil Procedure have the

53
same force and effect as and are treated as statutes.3 Where a Rule of Civil

Procedure and statute conflict, the Rule of Civil Procedure controls if it was

passed subsequent to the statute.4

In In re City of Georgetown, 53 S.W.3d 328, 332 & n. 2 (Tex. 2001), the

Texas Supreme Court confirmed that the Legislature relinquished its

rulemaking authority to the Texas Supreme Court in 1939, stating as follows:

Although we know of no case in which this Court has had occasion
to construe the term “other law” when used in a statute, we have
said that our rules of procedure “have the same force and effect
as statutes.” ...

In 1939, when the Legislature by statute “confer[red] upon and
relinquish[ed]” to this Court full rulemaking power, it thereby
acknowledged our authority to make the law governing civil
procedure and evidence.

Id.

3
See, e.g., Freeman v. Freeman, 327 S.W .2d 428, 433 (Tex. 1959); Missouri Pac. R. Co.
v. Cross, 501 S.W .2d 868, 872 (Tex. 1973); In re United Services Auto Ass’n, 307 S.W .3d
299, 308 (Tex. 2010) (“Our procedural rules ... have the force and effect of statutes ...”);
Degen v. General Coatings, Inc., 705 S.W .2d 734, 735 (Tex. App.–Houston [14th Dist.] 1986,
no writ) (stating that promulgation of rules of civil procedure and amendments are legislative
acts of Supreme Court and rules have the force of statutes); N.N. v. Institute for Rehabilitation
and Research, 234 S.W .3d 1, 14 (Tex. App.–Houston [1st Dist.] 2006, no pet.) (confirming that
the Rules of Civil Procedure have the force and effect of statutory provisions and that courts
are duty bound to observe and follow those rules and have no authority to deviate from them).
4
See Texas Government Code Section 22.004(c) (“So that the supreme court has full
rulemaking power in civil actions, a rule adopted by the supreme court repeals all conflicting
laws and parts of laws governing practice and procedure in civil actions, but substantive law
is not repealed.”); Johnstone v. State, 22 S.W .3d 408, 409 (Tex. 2000) (“[W ]hen a rule of
procedure conflicts with a statute, the statute prevails unless the rule has been passed
subsequent to the statute and repeals the statute as provided by Texas Government Code
section 22.004.”). (emphasis supplied)

54
 The Legislature’s delegation of rulemaking authority to the Texas

Supreme Court is now reflected in Section 22.004 of the Texas Government

Code, which reads, in part, as follows:

(a) The supreme court has the full rulemaking power in the
practice and procedure in civil actions, except that its rules may
not abridge, enlarge, or modify the substantive rights of a litigant.

(b) The supreme court from time to time may promulgate a
specific rule or rules of civil procedure, or an amendment or
amendments to a specific rule or rules, to be effective at the time
the supreme court deems expedient in the interest of a proper
administration of justice.

###

(c) So that the supreme court has full rulemaking power in civil
actions, a rule adopted by the supreme court repeals all conflicting
laws and parts of laws governing practice and procedure in civil
actions, but substantive law is not repealed.

Texas courts have addressed situations involving conflict between Rules

of Civil Procedure and statutes on multiple occasions. A later enacted Rule

of Civil Procedure repeals a conflicting statute and prevails over the statute.

In Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000), the Supreme Court

stated as follows:

[W]hen a rule of procedure conflicts with a statute, the statute
prevails unless the rule has been passed subsequent to the
statute and repeals the statute as provided by Texas Government

55
 Code section 22.004.5

Copano’s argument that the certified or registered mail requirement in

Section 21.049 controls over authorized e-mailing under Texas Rule of Civil

Procedure 21(f)(10) is wrong as a matter of law. The later enacted Rule

21(f)(10) controls.

III. The Findings Of Fact And Conclusions Of Law Were Appropriate
(Responsive to Copano’s Appellant’s Brief, pp. 15-17)

Copano complains of the trial court’s Findings of Fact and Conclusions

of Law because there was no evidentiary hearing in this case. But, the trial

court did hold a hearing on Ashcraft’s motion for entry of judgment on June 15,

2015, and the trial court received stipulations of counsel during this hearing to

determine whether rendition of judgment was proper pursuant to Tex. Prop.

Code §§ 21.018 and 21.061. The Supreme Court held in IKB Industries

(Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997), that

findings and conclusions may be proper and helpful to the appellate court,

5
See also A. O. Smith v. Adair, 96 S.W .3d 700, 704 (Tex. App.–Texarkana 2003, pet.
denied) (“[W ]hen a rule of civil procedure conflicts with a statute, the statute prevails unless
the rule has been passed subsequent to the statute and repeals the statute as provided by
Tex. Gov’t. Code Ann. § 22.004 ...”); Villasan v. O'Rourke, 166 S.W .3d 752, 762 (Tex.
App.–Beaumont 2005, pet. denied) (restating same principle); In re M.A.W ., 55 S.W .3d 101,
104 (Tex. App.–Amarillo 2001, no pet.) (restating same rule). The above stated principle is
consistent with provisions of the Texas Government Code which state that when two statutes
conflict, the later enacted statute controls over the earlier enacted provision. Tex. Gov’t Code
§§ 311.025, 312.014.

56
even if the party is not entitled to the findings and conclusions as a matter of

right. See also In re Perritt, 973 S.W.2d 776, 778 (Tex. App.–Texarkana 1998,

orig. proceeding) (stating that findings and conclusions on discovery motion,

although not required by Rule 296, were considered “helpful to our

determination of the issues”).

The Findings of Fact and Conclusions of Law document stipulations of

counsel made at the June 15, 2015, hearing concerning receipt and notice by

the parties’ counsel of the filing of the Special Commissioners’ award with the

court. (8-27-2015 Supp. CR 17-22) Copano admits on page 16, footnote 13

of its brief that “the parties discussed [Mr. Ashcraft’s] motion [for entry of

judgment] with the trial judge, but no evidentiary hearing was held, and no

transcript was taken.” Under such circumstances, the Findings of Fact and

Conclusions of Law were proper and are properly considered by this Court.

Copano claims on page 16 of its brief that Mr. Ashcraft requested

findings for an “illegitimate purpose” and “the entire purpose of [requesting

findings and conclusions] was illegitimate.” The basis for these accusations

of “illegitimacy” is Copano’s assertion that “an appellate court should not

decide a case upon a theory different from that upon which it was pleaded and

tried,” quoting from Am. Mut. Liability Ins. Co. v. Parker, 191 S.W.2d 844, 848

57
(Tex. 1945). That decision involved “an immaterial allegation of a petition” and

the jury’s answer to an immaterial issue. Id. Texas law has long required that

this Court uphold conclusions of law on appeal if the judgment can be

sustained on any legal theory the evidence supports and that erroneous

conclusions of law do not require reversal if the controlling findings of fact

support the judgment under a correct legal theory. See Greater Houston

German Shepherd Dog Rescue, Inc. v. Lira, 447 S.W.3d 365, 370 (Tex.

App.–Houston [14th Dist.] 2014, pet. filed); BMC Software Belgium, N. V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002) (“If the reviewing court determines

a conclusion of law is erroneous, but the trial court rendered the proper

judgment, the erroneous conclusion of law does not require reversal.”). The

trial court rendered a proper judgment.

CONCLUSION AND PRAYER

The final judgment in favor of Appellee John Ashcraft, Individually and

as Trustee for the John Ashcraft Family Trust 2012 should be affirmed.

Respectfully submitted,

MCDOWELL WELLS, LLP
John T. McDowell
SBN 13570850
jtm@houstontrialattorneys.com

58
Kacy J. Shindler
SBN 24088407
ks@houstontrialattorneys.com

603 Avondale Street
Houston, Texas 77006
Telephone: (713) 655-9595
Facsimile: (713) 655-7868

Danny Shindler
SBN 18266200
dwshindler@sbcglobal.net
2232 Avenue G
Bay City, Texas 77414
Telephone: (979) 245-4666
Facsimile: (979) 244-5342

PAUL WEBB, P.C.

/s/ Vincent L. Marable III
Vincent L. Marable III
SBN 12961600
trippmarable@sbcglobal.net
221 N. Houston
Wharton, Texas 77488
Telephone: (979) 532-5331
Facsimile: (979) 532-2902

ATTORNEYS FOR APPELLEE JOHN
ASHCRAFT, INDIVIDUALLY AND AS
TRUSTEE FOR THE JOHN ASHCRAFT
FAMILY TRUST 2012

59
 CERTIFICATE OF SERVICE

I certify that on December 4, 2015, a true and correct copy of the above
and foregoing Brief Of Appellee was forwarded to all counsel of record by the
Electronic Filing Service Provider, if registered; a true and correct copy of this
document was forwarded to all counsel of record not registered with an
Electronic Filing Service Provider by certified mail return receipt requested,
addressed as follows:

Charles R. “Skip” Watson, Jr. VIA E-FILE
cwatson@lockelord.com
Locke Lord LLP
600 Congress Avenue, Suite 2200
Austin, Texas 78701

Christopher Dove VIA E-FILE
cdove@lockelord.com
Ken McKay
kmckay@lockelord.com
A. Antroy Arreola
aarreola@lockelord.com
Harry Holmes Thompson
hthompson@lockelord.com
Locke Lord LLP
600 Travis Street, Suite 2800
Houston, Texas 77002

/s/ Vincent L. Marable III
VINCENT L. MARABLE III

60
 CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of Tex. R. App. P.
9.4(i)(2)(B) because this brief consists of 9,843 words, excluding the parts of
the brief exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Vincent L. Marable III
VINCENT L. MARABLE III

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