Pappas Restaurants, Inc. and Pappas Bar-B-Q, Inc. v. State of Texas, 01-15-00001-CV

Background

The State filed a condemnation petition to acquire 0.0430 acres from property owned by Pappas Restaurants, Pappas Bar-B-Q, and Northwest Crossing; special commissioners held a hearing July 22, 2014 and awarded $58,936.
Notices of the hearing were served and returns filed before the hearing; the award was filed July 22 and refiled July 25 due to a defective copy.
The clerk mailed certified notices of the award (return receipt requested) to the parties’ registered agent/office on July 25 and July 28; the statutory deadline to file objections was the first Monday after 20 days (August 18, 2014).
Pappas Restaurants filed a Notice of Appearance of Substitute Counsel on July 26 (which did not reference the award). No objections were filed by August 18.
Pappas Restaurants filed objections on September 26 (late). The trial court entered a Judgment in Absence of Objection on October 29 and later denied motions for new trial; the State appealed to affirm the judgment.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pappas)	Held (trial court / State position)
Whether Property Code or Rules of Civil Procedure govern notice and procedure in eminent domain	Property Code’s specific procedures control the administrative phase until timely objections are filed; the Rules of Civil Procedure do not displace those specific statutes	Property Code should be read with the Rules; notice should be to counsel in some circumstances	Property Code controls special eminent domain procedures; specific Property Code provisions govern notice and timing
Whether notice of special commissioners’ hearing (§21.016) and filing requirements were met	Notices and returns were filed before the hearing and copies were made available to commissioners; thus §21.016 satisfied	Argued irregularities in service or proof of service	State: returns on file plus commissioners’ affirmations create prima facie proof of service; court adopted this view
Whether clerk’s mailing of award notice (§21.049) was sufficient (party vs. attorney)	§21.049 requires mailing to the parties or their attorneys at addresses of record; mailing to the party/registered agent satisfied the statute even if counsel existed	Claimed notice must be to counsel of record; failure to mail to counsel tolled objection deadline	State: mailing to party/agent at address of record complies with §21.049; therefore objection deadline was not tolled
Whether Pappas’s July 26 Notice of Appearance constituted timely objections or allowed later objections to relate back	Notice of Appearance did not reference or object to the award; late objections cannot relate back; withdrawal of award further waived right-to-take challenges	Argued Notice of Appearance and subsequent filings should be treated as objections or that tolling/relating-back applies	State: the Notice of Appearance is not an objection under §21.018; late objections are untimely and do not relate back; once no timely objections, court must enter judgment under §21.061

Key Cases Cited

Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240 (Tex. 1984) (eminent domain administrative/judicial bifurcation; Chapter 21 governs administrative phase)
Pearson v. State, 315 S.W.2d 935 (Tex. 1958) (condemnation administrative phase under special statutes; judicial phase triggered by objections)
State v. Bristol Hotel Asset Co., 65 S.W.3d 638 (Tex. 2001) (returns of service can constitute independent proof of compliance with §21.016)
John v. State, 826 S.W.2d 138 (Tex. 1992) (statutory notice provisions to be enforced as written; tolling where clerk mailed late)
Tejas Gas Corp. v. Herrin, 716 S.W.2d 45 (Tex. 1986) (withdrawal/acceptance of award precludes later challenge to right to take)
State v. Jackson, 388 S.W.2d 924 (Tex. 1965) (acceptance/withdrawal of award bars contesting State's right to take)
Luby v. City of Dallas, 396 S.W.2d 192 (Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.) (acceptance/withdrawal constitutes implied consent to taking; only compensation remains)
City of San Antonio v. Grandjean, 41 S.W. 477 (Tex. 1897) (same principle: accepting award validates otherwise defective proceedings)
Religious of the Sacred Heart of Texas v. City of Houston, 836 S.W.2d 606 (Tex. 1984) (examples of notice/service and condemnation statutory analysis)