Pryor v. State

OPINION

ROBERTSON, Justice.

This appeal is from an order of the court dissolving a temporary injunction entered in a condemnation proceeding. The sole issue before us is whether the trial court abused its discretion. We affirm.

On July 15, 1988, the State of Texas, acting through the State Highway and Public Transportation Commission, filed its original statement or petition for condemnation of certain properties belonging to appellants. The properties consisted of two tracts: tract one being 3.007 acres for use in construction of Beltway 8 and tract two being 1.406 acres for a permanent drainage channel in connection with the same project. It was alleged that the parties had been unable to agree upon the value of the land sought to be condemned and requested the appointment of special commissioners to assess the damages. The statement or petition was amended on August 4 to make minor changes in the allegations for the use of tract one and was again amended on August 18 to add Floyd J. Pryor, Jr., an easement holder, as a party. So far as the record before us shows, appellants were not served with either of these statements or petitions. On August 22, 1988, the special commissioners, appointed by the court to assess damages, met and scheduled the hearing for September 12, 1988, at 3:00 p.m.

On September 1,1988, an “Acceptance of Service and Waiver of Notice of Hearing” was filed in the cause. It was executed on August 31, 1988, signed and sworn to before a notary public, and provided:

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW H. Dixon Montague, Attorney for Gloria Broski Pryor, Floyd J. Pryor, Jr., and Shirley Broski Hussion, Defendants in the above-styled and numbered cause, and acknowledges that he is duly authorized to represent the above-named Defendants and is Attorney for each Defendant in the condemnation proceeding; that a copy of Plaintiffs Statement or Petition for Condemnation has been delivered to and received by said Attorney; that on behalf of each Defendant he does hereby accept service of process in such cause and waives the issuance, service and returns of Notice of Hearing upon said Defendants in this proceeding; that he hereby enters an appearance on behalf of each Defendant for all purposes before the Special Commissioners herein; and that said waiver and acceptance shall have the same force and effect as if Notice of Hearing had been issued and served upon each Defendant as provided by law.
Signed this 31 day of August, 1988.
/s/_ H. Dixon Montague
STATE OF TEXAS COUNTY OF HARRIS
Before me the undersigned authority on this day personally appeared H. Dixon Montague, and on oath states that he is the attorney for Gloria Broski Pryor, Floyd J. Pryor, Jr., and Shirley Broski Hussion, Defendants in this cause; that he is authorized to execute the above and foregoing Acceptance of Service and Waiver of Notice of Hearing; that he has received and does hereby acknowledge receipt of copies of Plaintiffs Statement or Petition for Condemnation in this cause and knows the contents thereof.
/s/_ H. Dixon Montague

Beside Montague’s signature and to the left of the date on the document appeared a handwritten notation which read “3:00 September 12, 1988 hearing date”.

On September 6, 1988, the state filed its Third Amended Statement or Petition for Condemnation. It was identical in all other *23respects but decreased the amount of land sought to be condemned in tract two from 1.406 acres to 0.152 acres. The certificate of service shows a copy of the petition was served upon Mr. Montague by messenger on the same day.

An “Order Resetting Hearing before the Special Commissioners” was signed by each of the special commissioners on September 12, 1988, and was filed in the clerk’s office at 11:02 a.m. on that day. It read:

We, the undersigned Special Commissioners appointed to assess the damages in the above proceeding, find and announce that by Order and Decision of the Special Commissioners, the Hearing on this cause be rescheduled for the 23rd day of September, 1988 at 9:00 A.M.
It is, therefore, ORDERED by the undersigned Special Commissioners that this Hearing heretofore set to be held at 3:00 P.M. on the 12th day of September, 1988, is hereby reset and the Hearing will be held at 9:00 A.M. on the 23rd day of September, 1988 in the County Commissioners’ Conference Room, 9th Floor, Harris County Administration Building, 1001 Preston, Houston, Texas.
It is further ORDERED that service of Notice of Hearing be preserved on all Condemnees who have been properly served or who have signed a waiver of citation for this Hearing, as originally set; and that no new Notices of Hearing be given to these Condemnees.
WITNESS OUR HANDS, this the 12⅛ day of September, 1988.

On September 23, 1988, the special commissioners met, heard evidence, and made an award of $185,395. None of the appellants nor their attorney, Mr. Montague, appeared at the hearing. Notice of the award was sent to each of them and their attorney. On October 4, 1988, appellants filed a plea to the jurisdiction and requested a temporary injunction, which the trial court granted on October 10, 1988, but the order was not signed until October 18, 1988. The state did not appear at this hearing and on October 20, 1988, it filed a motion requesting, among other relief, a rehearing on the grant of temporary injunction, alleging it had not received notice of the injunction hearing. On November 18, 1988, the state had deposited the condemnation award of $185,395 with the clerk of the court. Finally, on December 9,1988, the trial court signed an order dissolving the temporary injunction. It is from this order that the appeal originates. The order recites:

The State appeared by and through the Attorney General and the Defendants appeared through Mr. Dixon Montague. Having heard evidence and arguments, the Court finds that the evidence supports the Motion to Dissolve the Temporary Restraining Order.
IT IS, THEREFORE, ORDERED that the Temporary Injunction be, and it hereby is dissolved.

Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). In their brief appellants reference pages of the record of the hearing on both the temporary injunction and the hearing on the motion to dissolve temporary injunction, but they have not provided a copy of the evidence at either proceeding as a part of the appellate record. While we could refuse to find an abuse of discretion on this basis alone, we will address appellants’ contention.

In appellants’ sole point of error they allege the “special commissioners’ hearing held in the court below is void because of the state’s failure to serve appellants with notice of the September 23, 1988 special commissioners’ hearing.” We do not agree.

The acceptance of service and waiver of notice of hearing shows on its face that it was executed in compliance with Rule 119, Tex.R.Civ.PROC., which provides:

The defendant may accept service of process, or waive the issuance or service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, *24sworn to before a proper officer other than an attorney in the case, and filed among the papers of the cause, and such waiver or acceptance shall have the same force and effect as if the citation had been issued and served as provided by law. The party signing such memorandum shall be delivered a copy of plaintiff’s petition, and the receipt of the same shall be acknowledged in such memorandum.

Appellants allege the waiver was conditional; however there is no evidence before us to support such a contention. We cannot consider a handwritten notation on the waiver as evidence that appellants intended it to be conditional. If such was their intent, it might have been stated in the printed portions of the document. Appellants further argue “there was no waiver of notice signed by the appellants’ attorney for the September 23,1988 Special Commissioners’ Hearing.” Having already entered an appearance for all purposes and waived notice of hearing, there was no requirement for waiver of notice of the September 23rd hearing. Section 21.015(b), Tex.Prop. Code unequivocally provides that special commissioners have the authority to reschedule a condemnation hearing. This authority was invoked in the commissioners’ order rescheduling the hearing and preserving the notice of hearing. The evidence presented by the state at the condemnation hearing shows that Mr. Montague “signed for a copy of the ... order” rescheduling the hearing on or about September 14th, “so the fact is that he has known about this hearing for sometime.” Finally, appellants argue that the commissioners did not have the authority to reschedule the September 12th hearing prior to 3:00 p.m., the hour originally scheduled. Appellants cite no authority nor present any convincing argument for such a proposition. We are not impressed.

Appellant’s point of error is overruled and the order of the trial court dissolving the temporary injunction is affirmed.