Motion — Comstock v. Harris County

Supreme Court, v.58,

FILED

j FEB 27 1006

OSEPH F, SPANIOL, JR,

No. 85-1256 J haa

In The

Supreme Court of the United States

October Term, 1985

ft).

Vv

MARIAN FLEMING COMSTOCK,

Appellant,

HARRIS COUNTY, TEXAS,

Appellee.

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On Appeal From The Court Of Appeals For The

Fourteenth Supreme Judicial District of Texas

At Houston

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MOTION TO DISMISS OR AFFIRM

ray

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MicuHaeut DriscoLu

County Attorney

Davip H. MEnasky

CHeryL HreLtena CHAPMAN

Assistant County Attorney

Harris County, Texas

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-5101

Counsel for Appellee

Harris County, Texas

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS INVOLVED

1. WHEN THE QUESTION PRESENTED BY

APPELLANT IN THIS COURT WAS RAISED FOR

THE FIRST TIME ON APPEAL IN THE MOTION

FOR REHEARING AND WAS NEVER ADDRESSED

BY THE STATE COURTS, HAS THE ISSUE BEEN

PROPERLY PRESERVED FOR REVIEW BY THIS

COURT?

2. WILL THIS COURT REVIEW A DECISION

BASED ON AN ADEQUATE AND INDEPENDENT

STATE GROUND?

3. WHETHER A SUBSTANTIAL FEDERAL

QUESTION IS PRESENTED IN AN EMINENT DO-

MAIN CASE BY A LANDOWNER WHO CONTENDS

THAT HER FAILURE TO RECEIVE NOTICE OF

THE FILING OF A SPECIAL COMMISSIONERS’

AWARD IS A DENTAL OF DUE PROCESS, WHEN

THE LANDOWNER AND HER ATTORNEY AP-

PEARED AT THE SPECIAL COMMISSIONERS’

HEARING AND WERE THEREBY PLACED UNDER

A DUTY TO TAKE NOTICE OF SUBSEQUENT ACTS

OF THE SPECIAL COMMISSIONERS AND THE

FAILURE OF APPELLANT TO EXERCISE DUE

DILIGENCE IN MONITORING THE CASE RESULT-

ED IN HER FAILURE TO COMPLY WITH THE

STATUTORY FILING PERIOD IN WHICH TO RE-

QUEST JUDICIAL REVIEW?

TABLE OF CONTENTS

Page

QUESTIONS INVOLYED —............ ee i

STATEMENT OF THE CASE 1

DRUM nnn ee 9)

I. THE FEDERAL QUESTION WAS NOT

IIT.

PROPERLY PRESENTED IN TEXAS

COS anne

AN ADEQUATE AND INDEPENDENT NON-

FEDERAL GROUND EXISTS TO UPHOLD

THE DECISION OF THE TEXAS COURT OF

APPEALS — Eee

APPELLANT WAS NOT DENIED DUE

PROCESS OR JUST COMPENSATION IN

THE EMINENT DOMAIN PROCEDURES

FOLLOWED IN THIS CASE

CONCLUSION

wD) |

14

ill

INDEX OF AUTHORITIES

CASES

Page

Bailey v. Anderson, 326 U.S. 203 (1945) 0... 10

Bragg v. Weaver, 251 U.S. 57 (1919) _0 9, 11, 18

Determan v. City of Irving, Texas, 609 S.W.2d 565

(Tex.Civ.App.-Dallas 1980, mo Writ) 2... 6

Dickey v. City of Houston, 494 S.W.2d 293 (Tex. ~

Civ.App.-Houston [14th Dist.] 1975) writ ref’d. f

mee ot @.W.2d 290 (Tex. 1973) 7, 8,12

Fuller v. Oregon, 417 U.S. 40 (1974) . 5, 7

Giannakos v. M/V Bravo Trader, 762 F.2d 1295

SRE ee ea 11

Harrell v. City of Denton, 116 S.W.2d 423 (Tex.

Civ. App.-F't. Worth 1938, mo Writ) cc eecccesestscecsesessesee 8,12

Holloway v. County of Matagorda, 686 S.W.2d

100 (Tex. 1985) pos Sari A ae Ra Shes, eR ale . 6

Jomer v. City of Dallas, 380 F. Supp. 754 (N.D.

Tex. 1974), affirmed 419 U.S. 1042 (1974) 00. 10,13

Jones v. Estelle, 693 F.2d 547 (Sth Cir. 1982),

eert. denied, 460 U.S. 107, 103 S.Ct. 1528, 75

caterers 12

Kramer v. American Postal Workers Union, AP L-

Ceo eee © oe eee (yen Cir. 1977) ______ 12

Memphis Natural Gas Co. v. Beeler, 315 U.S. 649

a a oe thi RD ALO a BY

Murdock v. City of Memphis, 20 Wall (87 U.S.)

er 7

North Laramie Land Company v. Hoffman, 268

Ee 10, 11, 13

Pearson v. State, 315 S.W.2d 935 (Tex. 1958) .................... 7

P GP Gas Products, Inc. v. Fariss, 620 S.W.2d

nn scndpunidsirvimpmsintbommenin 6

iv

INDEX OF AUTHORITIES—Continued

Pila v. G.R. Leasing and Rental Corp., 551 F.2d

De Uae Sats ee cat ee 11

Smart v. Texas Power and Light Co., 525 F.2d

1209 (dSth Cir. 1976), reh. den. 528 F.2d 928,

cert, ak. 423 Us. Ge (hee) =... 10

State v. Lee, 346 S.W.2d 498 (Tex.Civ.App.-Waco

1961) rev’d 352 S.W.2d 724 (Texas, 1962) 0. 11

Street v. New York, 395 U.S. 576 (1969) ww 7

Svoboda v. State, 612 S.W.2d 229 ('Tex.Civ.App.-

ee Se UD ose cess 8

Trice Production Co. v. Dutton Drilling Co., 333

S.W.2d 607 (Tex.Civ.App.-Houston 1960, ref

Sn ee eee ae =

United Postage Corp. v. Kammeyer, 581 S.W.2d

716 (Tex.Civ.App.-Dallas 1979, no writ) 00 ww. |G

UWS. v. 181.68 Acres of Land, More or Less, Etc.,

695 F.2d 872 (5th Cir. 1985) cert. denied 104

PPR SE sikccipencectaem nec suesnnetionngh ohusadieheneiempateaciaialnantieeiaiestanons . 10

Walker v. City of Hutchinson, 352 U.S. 112 (1956) . 11

Wood v. Wood, 320 S.W.2d 807 (Tex. 1959) _................ (

STATUTES AND RULES

Tex.Rev.Civ.Stat.Ann. art. 3264 (Vernon 1968)

Ge Far eat ae ace eae ze ce ea eRte

Tex.Rev.Civ.Stat.Ann. art. 32065 (Vernon 1968)

(Repealed 1983) Sere 2

Tex.Rev.Civ.Stat.Ann. art. 3266 (Vernon 1968)

(Repealed 1983) .... nn OREN cee y Sa |

Tex.Rev.Civ.Stat.Ann. art. 3268 (Vernon 1968)

SB | Sea Me nara PGs ou Rie ese _ 10

Federal Rules of Civil Procedure, Rule 77(d) ...............12, 15

Vernon’s Texas Codes Ann., Property Code § 21.019 13

United States Supreme Court Rule 16.1(b) .W...W............ 7

No. 85-1256

ty.

Vv

In The

Supreme Court of the United States

October Term, 1985

oO

MARIAN FLEMING COMSTOCK,

Appellant,

HARRIS COUNTY, TEXAS,

Appellee.

ry

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On Appeal From The Court Of Appeals For The

Fourteenth Supreme Judicial District of Texas

At Houston.

ray

vv

MOTION TO DISMISS OR AFFIRM

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Y

Appellee County of Harris moves the Court to dismiss

the appeal herein or, in the alternative, to affirm the judg-

ment of the ‘l’exas Court of Appeals, on appeal pursuant to

28 U.S.C. § 1257(2).

co)

STATEMENT OF THE CASE

The case at bar is an appeal from a bill of review pro-

eeeding which was tried in the County Civil Court at Law

]

»)

of Harris County, Texas. The underlying controversy in-

volves the condemnation by Appellee, Harris County,

Texas, of certain lands owned by Appellant, Marian Flem-

ing Comstock, for use as a public road. Pursuant to the

Texas statutes governing eminent domain, a suit in con-

demnation was filed by Appellee in the County Civil Court

at Law of Harris County, Texas. (Cause No. 406,942)

In accordance with Tex. Rev. Civ. Stat. Ann. arts.

3264, 3265 and 3266 (Vernon 1968) (Repealed 1983), three

special commissioners were appointed by the court to hold

a hearing and assess the amount of compensation due the

landowner. The special commissioners held a hearing on

July 20, 1982 which hearing was attended by Appellant

and her Attorney. On July 22, 1982 the special commis-

sioners filed an Award with the Court assessing the sum

of $208,531.00 as compensation for the taking. Upon the

filing of this Award, any party to the suit could obtain a

civil trial by filing an objection to the award with the

County court on or before the Monday following the 20th

day after the award was filed with the court. This re-

quirement is jurisdictional. In the absence of the timely

filing of an objection, the award of the special commis-

sioners will become the basis for a Judgment of the

County Court.

It is undisputed that no objection to tk» award was

filed in Cause No. 406,942 by either Appellant or by any

other party to the suit within the time allowed by Art.

3266, Tex. Rev. Civ. Stat. Ann. Accordingly, after the ex-

piration of the statutory period for filing chjections, Har-

ris County moved the trial court to enter a Judgment on

the Award. During the pendency of this motion for Judg-

ment on the Award, Appellant filed a new action in the

County Civil Court at Law (Cause No. 412,886) seeking a

3

bill of review which would set aside any judgment entered

in Cause No. 406,942. On September 23, 1982 the trial court

entered a Judgment on the Award in Cause No. 406,942.

Although Appellant now contends that entry of the

September 23, 1982 Judgment deprived her of her right

to due process and just compensation, these allegations

were never raised in the trial court either in opposition to

the motion for entry of Judgment on the Award or in sup-

port of her petition for a bill of review. Assuming

arguendo that these aliegations had any merit, the trial

court should have been aierted to the purported constitu-

tional defects in the proceedings and thereby allowed the

opportunity to enter any orders necessary to correct the

asserted error. Appellant, however, failed to afford the

trial court with any opportunity to rule on these issues.

No appeal was taken from the September 23, 1982 judg-

ment.

In the bill of review proceeding, Appellant was re-

quired to prove the existence of circumstances which the

Texas courts have determined to be sufficient to invoke the

equitable jurisdiction of the county court when a party

fails to timely file objections to an award of the special

commissioners. ‘The criteria for determining such cireum-

stances are inherently a creature of Texas law. In her bill

of review, Appellant, through both pleadings and evidence,

sought solely to show the county court that her situation

justified the granting of a bill of review according to the

Texas case law governing same. Appellant contended

that, although it was undisputed that both she and her at-

torney attended the special commissioners hearing and

that on or before July 26, 1982 the Award of the special

commissioners was filed with the clerk of the court as part

of the public records of the court, her failure to receive

notice of the filing of the award, irrespective of the lack of

4

evidence of any effort on her part to contact the clerk and

determine the status of the case, justified her request

for a bill of review. The triai court granted the bill of re-

view on October 18, 1983 and a jury trial on the issue of

compensation resulted in a verdict of $308,555.00.

Upon appeal by Harris County from the Judgment

based on this jury verdict, the Texas Court of Appeals for

the Fourteenth Supreme Judicial District held that the

evidence submitted to the County court was, as a matter of

law, not sufficient to invoke the equitable jurisdiction of

the trial court and that the granting of the bill of review

was reversible error.' The Court of Appeals, therefore, re-

versed the judgment in Cause No. 412,886 and rendered the

judgment entered on September 23, 1982. Appellant did

not raise any constitutional question in the court of ap-

peals at any time prior to the decision of the court.

Appellant Comstock filed a motion for rehearing in

the Court of Appeals in which for the first time there was

1 Specifically, the Court of Appeals noted the following:

“A thorough examination of evidence offered by ap-

pellee at the bill of review hearing reveals appellee wholly

failed to establish the existence of fraud to the degree

necessary to warrant a biii of review. The oniy evidence

appellee offered on the issue of fraud was testimony of her

attorney that certain parties had indicated the matter could

be expedited. No evidence was offered as to the identity

of the speaker or his intent in making the statement. Fur-

ther, appellee failed to explain how this statement would

prevent her from filing a timely objection to the award. See

Swaim, 590 S.W.2d at 789. To the contrary, such a state-

ment would more reasonably indicate the need to file ob-

jections well in advance of the normal deadline, not later.

A review oi the record revealed no evidence that

would entitle appellee to relief by means of a Bill of Re-

view.”

See App. A, page 4a of Appellant’s Jurisdictional Statement.

asserted to be constitutional defects in the proceedings.

The motion for rehearing was denied without comment as

was the application for writ of error filed with the Texas

Supreme Court.

,,

Vv

ARGUMENT

i

THE FEDERAL QUESTION WAS NOT

PROPERLY PRESENTED IN TEXAS COURTS

This Court has held that no appellate jurisdiction will

lie over a federal claim not properly drawn into question

in state court or deemed by that state’s highest court to be

in issue. Memphis Natural Gas Co. v. Beeler, 315 U.S. 649,

62 S.Ct. 857, 86 L.led. 1090 (1942); Fuller v. Oregon, 417

U.S. 40, 50 n. 11, 94 S.Ct. 2116, 2123 n. 11, 40 L.Ed.2d 642

(1974).

The federal question in the case at bar was not prop-

erly presented in the Texas state courts. Appellant de-

cisively waived her right to complain of alleged due pro-

cess violations when she failed to raise the issue prior to

the entry of the judgment on the award or in ber petition

for bill of review. During no stage of the lower court pro-

ceedings was the unconstitutionality of the eminent do-

main statutes asserted. It was not until after a fuil brief-

ing on the merits, oral arguments and an adverse appellate

decision, that Appellant asserted for the first time, in a

motion for rehearing, her contentions of constitutional

infirmities. The Court of Appeals overruled her motion

without comment, and the Texas Supreme Court, also with-

out comment, refused her application for writ of error.

The generai rule in Texas is that the constitutionality

of a statute wili not be considered by appellate courts when

the question is presented for the first time on appeal.’

Wood v. Wood, 320 S.W.2d 807 (Tex., 1959); United Post-

age Corp. v. Kammeyer, 581 8.W.2d 716 (Tex.Civ.App.—

Dallas 1979 no writ); Trice Production Co. v. Dutton Drill-

ing Co., 333 S.W.2d 607 (Tex.Civ.App.—-Houston 1960

writ ref. n.r.e.).

The Texas Supreme Court has directly addressed

challenges to condemnation proceedings, and has held re-

peatedly that such challenges must be preserved at the

trial level in order to form the predicate for complaint on

appeal. P G P Gas Products, Inc. v. Fariss, 620 S.W.2d

559 (Texas, 1981); Hollowoy v. County of Matagorda, 686

S.»V.2d 100 (Texas, 1985).

Both the Texas Court of Appeals and the Texas Su-

preme Court were silent on Appellant’s due process con-

tentions. Nevertheless, through their silence, the Texas

courts have said that a substantial issue was not presented

which would have justified their review. Where a state

court has been silent on a federal question, this Court will

assume that such silence was due to want of proper presen-

2 The fundamental error rule is the exception to the gen-

eral rule that Texas appellate courts will not consider constitu-

tional issues presented for the first time on appeal. Under the

fundamental error rule, appellate courts may consider constitu-

tional challenges to a statute which were not raised at the lower

level, if (1) the statute’s unconstitutionality is obvious and appar-

ent; or (2) the statute is of sufficient public interest to justify con-

sideration. Determan v. City of Irving, Texas, 609 S.W.2d 565

(Tex.Civ.App.—Dallas 1980, no writ). Since neither the Court of

Appeals nor the Texas Supreme Court addressed Appeliant’s due

process claim, it goes without saying, that no fundamental error

was found.

7

tation unless the appellant cam show to the contrary. Ap-

pellant has not done so. Street v. New York, 394 U.S. 576

89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Fuller v. Oregon,

supra. Accordingly, the jurisdictional predicate for ap-

pellate review by this court is lacking.

IT.

AN ADEQUATE AND INDEPENDENT NON-

FEDERAL GROUND EXISTS TO UPHOLD THE

DECISION OF THE TEXAS COURT OF AP-

PEALS

The Supreme Court has consistently adhered to the

principle that it will not review a state court judgment

based on an adequate and independent non-federal ground.

Supreme Court Rule 16.1(b); Murdock v. City of Mem-

phis, 20 Wall (87 US) 590, 22 L.Ed. 429 (1875).

The Court of Appeals decision to reinstate the award

of the special commissioners rests on substantive state

grounds. The applicable law governing appeals in eminent

domain proceedings is explicit: when no timely objections

have been filed, the court nas the ministerial duty of en-

tering judgment on the award and no appeal may be taken

therefrom. Tex. Rev. Stat. Ann., art. 3266 (Repealed) ;

Pearson v. State, 325 S.W.2d 935 (Texas, 1958) ; Dickey v.

City of Houston, 501 S.W.2d 293 (Texas, 1973).

Appellant sought relief from the judgment by the

equitable remedy of bill of review. However, her argu-

ment that failure to receive notice of the filing of the

award excused noncompliance with the statutory deadline,

is not one recognized under Texas Law. The courts have

held without exception that lack of notice of the entry of

the award by itself does not support a bill of review.

8

Dickey v. City of Houston, supra; Harrell v. City of Den-

ton, 116 S.W.2d 423 (Tex.Civ.App.—Fort Worth 1939, no

writ); Svoboda v. State, 612 S.W.2d 229 (Tex.Civ.App.—

Tyler 1981, no writ). Having appeared and _partici-

pated in the special commissioners hearing, Appellant was

under a continuing obligation to keep herself informed ot

the subsequent acts of the commissioners. Dickey v. City

of Houston, supra.

While allegations of fraud, mistake or accident will

invoke equitable review powers, the Texas Court of Civil

Appeals found no evidence to support Appellant’s conten-

tion that the judgment was entered tlirough fraud, mistake

or accident. Therefore, the Texas Court of Civil Appeals

appropriately reversed the trial court judgment and rein-

stated the ».ward of the special commissioners based on the

principles governing bills of review in Texas—a reason in-

dependent of federal law and completely adequate and suf-

ficient under Texas law.

III.

APPELLANT WAS NOT DENIED DUE PROC-

ESS OR JUST COMPENSATION IN THE EMIN-

ENT DOMAIN PROCEDURES FOLLOWED IN

THIS CASE

The Texas eminent domain statutes afford a land-

owner due process by requiring a hearing of three special

commissioners to determine compensation prior to the tak-

ing of property and by requiring that notice of the special

commissioners hearing be personally served on the land-

owner. In the case at bar it is undisputed that both the

landowner and her attorney made an appearance in this

cause by attending the special commissioner’s hearing and

thereby any complaint based on failure to receive notice

was waived. Having appeared, it became the duty of Ap-

pellant, as in any civil action, to exercise due diligence in

monitoring the progress of the litigation and the failure

of Appellant to meet a filing deadline due to the lack of

such diligence does not constitute a denial of due process.

ARGUMENT

The requisite dictates of due process in an eminent do-

main proceeding were discussed by this Court in Bailey v.

Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3 (1945).

The case involved a review of the Virginia eminent domain

procedures which allowed for the taking of land for public

use prior to a hearing on compensation and prior to the

payment of compensation to the property owner. In hold-

ing that this procedure was not constitutionally infirm, this

Court stated the following:

‘*But it has long been settled that due process does

not require the condemnation of land to be in advance

of its occupation by the condemning authority, pro-

vided only that the owner have opportunity, in the

course of the condemnation proceedings, to be heard

and to offer evidence as to the value of the land taken.

Bragg v. Weaver, 251 U.S. 57, 62, 40 S.Ct. 62, 64,

64 L.Ed. 135. and eases cited; Joslin Mfg. Co. v. City

of Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 688,

67 L.Ed. 1167; State of Georgia v. City of Chatta-

nooga, 264 U.S. 472, 485, 44 S.Ct. 369, 371, 68 L.Ed.

796. Its value may be fixed by viewers without a hear-

ing, after entry upon the land, if their award is sub-

ject to a review in which a trial upon evidence may be

had. Pearson v. Yewdall, 95 U.S. 294, 296, 24 L.Ed.

436; Backus v. Fort Street Union Depot Co., 169 U.S.

557, 569, 18 S.Ct. 445, 450, 42 L.Ed. 853; Bragg v.

Weaver, supra, 251 U.S. 59, 40 S.Ct. 63, 64 L.Ed. 135,

10

and cases cited; North Laramie Land Co. v. Hoffman,

268 U.S. 276, 284, 285, 45 S.Ct. 491, 495, 69 L.Ed. 963.’’

326 U.S. at 205, 66 S.Ct. at 67.

See also U.S. v. 131.68 Acres of Land, More or Less, Etc.,

695 F.2d 872, 875 (Sth Cir. 1983) cert. denied, 464 U.S. 817,

104 S.Ct. 77 (1983).

In contrast to the procedures described in Pailey, the

Texas statutes on eminent domain which were applicable

to the instant cause provided the landowner with both a

hearing prior to the taking and required the tender of

compensation as a condition precedent to the actual pos-

session of the property by Harris County. See Tex. Rev.

Civ. Stat. Ann. art. 3264 §§ 2, 3, 4, 5 and 6 and 3268 (Ver-

non 1968) (Repealed 1983). Federal courts have twice

in recent years scrutinized the Texas eminent domain

statutes for constitutionality and found them to pass

muster. A broadside attack against the entire statu-

tory scheme was entertained by a three judge panel in

Joiner v. City of Dallas, 380 F.Supp. 754 (N.D. Texas,

1974), affirmed 419 U.S. 1042, 95 S.Ct. 614, 42 L.Ed.2d 637

(1974) and no constitutional infirmity was found. In

Smart v. Texas Power & Light Co., 525 F.2d 1209 (5th

Cir. 1976) reh. den. 528 F.2d 928 cert. denied, 429 U.S. 826

(1976), the Fifth Circuit upheld the constitutionality of

allowing possession by the condemnor upon deposit of the

special commissioner’s award.

In the case sub judice, Appellant does not dispute the

fact that she and her attorney both attended the hearing

at which the Special Commissioners determined the amount

of compensation which would be necessitated by the tak-

ing of the subject property. It is therefore clear that the

11

eases relied on by Appellant, Bragg v. Weaver, 251 U.S.

o7, 40 S.Ct. 62, 64 L.Ed. 135 (1919) and North Laramie

Land Company v. Hoffman, 268 U.S. 276, 45 S.Ct. 491,

69 L.Ed. 953 (1925), are distinguishable from the instant

eause. In both Bragg and North Laramie the question be-

fore the court was whether the landowner had received

adequate notice of the commencement of eminent domain

proceedings at which just compensation would be deter-

mined. In both cases this court held that a landowner

must be afforded notice of a commencement of the hear-

ing at which compensation will be determined. See also

Walker v. Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Kd.

2d 178 (1956).

Furthermore, it is settled law that appearance in a

proceeding waives any right to complain about notice.

Texas courts have specifically held that appearance at a

special commissicuers hearing will waive any complaint as

to lack of service. State v. Lee, 346 S.W.2d 498 (Tex.Civ.

App.—-Waco, 1961) reversed on other grounds 352 S.W.2d

724 (Tex. 1962). Similarly the Federal Rules provide that

an appearance will waive service. Pila v. G. R. Leasing

and Rent Corp., 551 F.2d 941 (1st Cir. 1977), Giannakos v.

M/V Bravo Trader, 762 ¥.2d 1295 (5th Cir. 1985). Thus

by appearing at the Special Commissioners hearing, A})-

pellant waived any right to complain about lack of notice

of the eminent domain proceedings.

liaving appeared in the condemnation proceeding, Ap-

pellant was under a continuing duty to apprise herself of

the status of the proceedings. The award of the special

commissioners was filed with the clerk of the court and be-

came part of the record of the county court and thus avail-

able for publie inspection. The duty that is imposed on par-

12

ties to a condemnation proceeding was specifically set forth

by the Texas Supreme Court in Dickey v. City of Houston,

901 S.W.2d 293 (Tex., 1973) wherein the court stated the

following:

‘*In this instance petitioners’ motion in the trial

court appears to be merely an attempt to have the

judgment set aside on the ground that it is void be-

cause petitioners were not notified of the filing of the

commissioners’ decision. There is no merit in this

contention. The record shows that petitioners were

duly notified of and appeared at the commissioners’

hearing. It was then their duty to take cognizance of

the subsequent acts of the commissioners. They were

chargeable with notice that it was the duty of the com-

missioners to make an award and return it as provided

by law, and that the judge would cause it to be entered

in the minutes as the judgment of the court unless

timely objections were filed. See Harrell v. City of

Denton, Tex.Civ.App., 116 S.W.2d 423 (no writ).’’

Td. at 294.

A similar duty is placed on federal litigants by Rule

77(d) of the Federal Rules of Civil Procedure which spe-

cifically notes that the time for appeal is not affected by

lack of notice of the entry of the judgment by the clerk. In

Jones v. Estelle, 693 F.2d 547 (5th Cir. 1982) cert. denied

460 U.S. 107, 108 S.Ct. 1528, 75 L.Ed.2d 950 (1983), the

Fifth Cireuit specifically noted in regard to Fed. R. Civ. P.

Rule 77(d) that ‘‘underlying the rule is the implicit burden

on the party and the counsel to make ‘periodic inquiries’

into the course of the proceedings.’* 693 F.2d at 549. See

also Kramer v. American Postal Workers Union, AFL-

CIO, 556 F.2d 929 (9th Cir. 1977).

In the case at bar, Appell-nt and her attorney at-

tended the special commissioners hearing and this appear-

13

ance constituted a waiver of any failure to receive notice.’

The assertions of due process raised by Appellant are not

akin to the landowners who were arguably unaware of the

commencement of proceedings as in Bragg and North

Laramie, supra, but are an attempt to clothe in the gar-

ments of due process the naked failure of Appellant to dili-

gently monitor the case, a duty imposed on litigants by

the Texas courts and by this court through the adoption

of Fed. R. Civ. P. Rule 77(d).4 Under the 'exas statutes,

c It should be noted that Appellant is not an unsophisticated

individual, naive to the procedures of eminent domain. The July

20, 1985 Special Commissioners hearing was the second Special

Commissioners hearing held in this cause. Appellant did not ap-

pear at the first hearing. Upon the taking of possession of the

subject property by Harris County, Appellant filed a suit in a

Texas District Court for injunctive relief alleging lack of notice of

the hearing. The second Special Commissioners hearing was

held after an agreed injunction had been entered which prohib-

ited the County from taking possession based on the earlier Spe-

cial Commissioners hearing.

4 Appellant argues strenuously that the enactment by the

legislature of Art. 21.019 of the Texas Property Code, which re-

quires the clerk of the court to send notice of the filing of the

special commissioners award, somehow indicates that the earlier

statutory proceeding was unconstitutional. By this argument,

appeilant has ignored the admonitions of the three Judge panel

in Joiner v. City of Dallas, supra, wherein the limits of constitu-

tional scrutiny were described as follows:

We recognize, of course, that the constitutional re-

quirements of due process and equal protection are not

necessarily static concepts. Neither, on the other hand, are

they protean labels capable of encompassing every desirable

innovation and improvement. Even viewed through a 1974

prism, the Constitution does not purport to correct every

wrong; and though it is the Supreme Law of the Land, the

(Continued on following page)

14

Appellant received both a hearing on fair market value and

compensation in advance of the taking of her land. These

procedures went far beyond the constitutional minimums.

The due process dictates having been satisfied by the spe-

cial commissioners hearing, there does not exist a substan-

tial federal question.

CONCLUSION

lor the foregoing reasons Harris County respectfully

submits that the state statutes challenged by Appellant

were not specifically reviewed by the State Courts and that

the Texas Court of Appeals had an adequate independent

state ground for its decision. Furthermore, Appellant has

failed to present a substantial federal qeustion which this

Court should entertain. The appeal herein should, there-

(Continued from previous page)

rights its secures to citizens constitute the bedrock of our

legal system, not the summit.

380 F. Supp. at 779. The court further noted that to pass consti-

tutional muster, a condemnation statute need only “insure to

property owners their minimum rights under well-established

interpretations of the Fourteenth Amendment. We cannot com-

pel more than this, for the Constitution, is not a blueprint for the

heavenly city.” Id. at 779. The fact that the legislature in 1983

added certain provisions to protect parties from their own negli-

gence does not ipso facto render the earlier statute constitution-

ally defective.

~

15

fore, be dismissed or in the alternative, the judgment of

the Texas Court of Appeals affirmed.

Respectfully submitted,

MicHarEt Driscouu

County Attorney

Davin H. Metasky

CHueryYL HeLtena CHAPMAN

Assistant County Attorneys

Harris County, Texas

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-5101

Counsel for Appellee

Harris County, Texas