City not responsible for prosecuting condemnation suit unless and until served with citation by objecting property owner says 6th Court of Appeals

James B. Bonham Corp v. The City of Corsicana, 06-16-00026-CV (Tex. App— Texarkana, November 29,2016)

This is an eminent domain proceeding where the Sixth Court of Appeals affirmed the dismissal of an appeal from a special commissioner’s assessment.

The City initiated eminent domain proceedings and a special commissioner’s panel assessed damages. The City deposited the amount into the registry of the court and the property owner corporation timely objected and filed suit. However, it did not serve the City with proper citation. More than seven years later the trial court dismissed the Corporation’s objections for want of prosecution. The Corporation appealed.

The Corporation argues that its failure to proceed to trial was excused because the City was responsible for prosecuting the case. “[W]hen a condemnee properly contests a condemnor’s right to condemn, the condemnor bears the burden to go forward to trial on that issue.” Thus, when an objection is filed, the “proceeding converts into a normal pending cause in the court with the condemnor as plaintiff and the condemnee as defendant.” However the statute expressly states “[t]he objecting party must secure service of citation on the adverse party and try the case in the manner of other civil causes.” “While the condemnor becomes the plaintiff for the purpose of proving his right to condemn, the condemnee still must secure the service of citation on the condemnor.”   Tex. Civ. Prac. & Rem. Code Ann. §17.024(b) and its interpreting case law states service is proper against a City only by serving the mayor, clerk, secretary, or treasurer. No such service occurred in this case. And while a condemning entity has the burden to show the right and power to condemn at trial, it was under no legal obligation to do so unless and until it had been served with citation.  The trial court was within its power to dismiss the case. Further, the Corporation failed to preserve its estoppel arguments.

If you would like to read this opinion click here. The Panel includes Chief Justice III Morriss, Justice Moseley, and Justice Burgess. Justice Burgess delivered the opinion of the court. John H. Jackson and James B. Bonham representing the Corporation. Attorney for the City is listed as Terry L. Jacobson.