Linda Gale Hurley v. Wood County Electric Cooperative, Inc.

In The Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00027-CV ______________________________ LINDA GALE HURLEY, Appellant

V. WOOD COUNTY ELECTRIC COOPERATIVE, INC., Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas Trial Court No. 2006-855

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Linda Gale Hurley, appearing pro se,1 brings this appeal from a condemnation proceeding brought by Wood County Electric Cooperative (WCEC). WCEC filed a petition to condemn approximately 2.68 acres of Hurley's property to establish a 100-foot-wide easement for the erection of a transmission line. The trial court appointed special commissioners to assess damages; the damages were assessed at $4,352.00.2 Hurley, who was represented by counsel in the trial court, filed objections to the special commissioners' award, and a trial on the merits was held. The trial court awarded Hurley $4,200.00 in damages. Hurley raises nine issues on appeal. Hurley's complaints are inadequately briefed and could be overruled as such. See TEX . R. APP . P. 38.1; Phippen v. Deere & Co., 965 S.W.2d 713, 716 (Tex. App.—Texarkana 1998, no pet.). In the interest of justice, we will attempt to address Hurley's complaints.

Hurley contends she was denied her right of being represented by an attorney of her own choice. In her brief, Hurley "objects to Plaintiff's statement that 'Linda Gale Hurley appeared in person through Attorney of Record.'" Hurley references her motion for new trial,3 which states the attorney who represented her at trial, Randy Taylor, took "it upon himself to begin the Wood County Electric Cooperative trial without Defendant's authority." Hurley claims she had retained Mark Falcon, who filed the original answer in this case, to represent her. In her motion for new trial, Hurley alleges that Falcon and Taylor, who shared office space, had a dispute about who represented her.4 Hurley states she had not communicated with Taylor in a number of years and had instructed Falcon that he was the attorney in charge. According to the motion for new trial, Hurley did not receive notice of the trial setting and was not personally present until after WCEC had presented its case. The docket sheet indicates that Hurley was not personally present at the start of the trial but that she did testify during the presentation of her case. The judgment states Hurley "appeared in person and through attorney of record."

There is no indication in the record that Hurley requested a hearing on either of her motions for new trial. No hearing was held on Hurley's motions for a new trial, and they were overruled by operation of law. When the motion for new trial requires presentation of evidence, a party must request a hearing on that motion in order to preserve error for appeal. See TEX . R. APP . P. 33.1(b) (overruling motion for new trial by operation of law does not preserve complaint that requires evidence to be taken); Garcia v. Arbor Green Owners Ass'n, 838 S.W.2d 800, 801 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Because Hurley's complaint required the presentation of evidence and no hearing was requested or held, Hurley's complaint that she was denied representation of counsel by an attorney of her choice is not preserved for our review.

Hurley complains that the damages awarded are insufficient. According to Hurley, the property condemned is worth $200,000.00. When a defendant objects to findings of the special commissioners, a trial de novo is conducted in the trial court. PR Invs. & Specialty Retailers, Inc., 251 S.W.3d at 476. The record on appeal, though, lacks a reporter's record.

If the record is incomplete and the appellant has not complied with Rule 34.6(c),5 the appellate court must presume that the omitted evidence supports the judgment or order from which the appeal is taken. In re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex. App.—Texarkana 2006, no pet.); Hilton v. Hillman Distrib. Co., 12 S.W.3d 846, 848 (Tex. App.—Texarkana 2000, no pet.); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439–40 (Tex. App.—Fort Worth 1999, no pet.); see Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002); Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991). Because there is no reporter's record, we must presume the omitted portions of the record contain sufficient evidence to support the judgment. Hurley's issues concerning the sufficiency of the damage award are overruled.

In five of her issues, Hurley complains of decisions by the Texas Public Utility Commission (PUC). These complaints can be divided into two main categories: 1) complaints about the decisions made by the PUC, and 2) complaints that WCEC has deviated from the design and distance requirements approved by the PUC.

Hurley appears to be claiming the PUC erred in granting the certificate of convenience and necessity for the project in question. According to Hurley, the project "favors City of Dallas and places hardship on the member Linda Hurley." Hurley attached several incomplete and uncertified documents related to hearings on WCEC's application for a certificate of convenience and necessity for the Dallas Water Utilities 69/138kV Double Circuit Transmission Line Project in Wood County with PUC Docket 30254. Any appeal of the PUC's decision in that administrative hearing must have been sought in an appeal from the PUC's decision after exhausting administrative remedies. See TEX . GOV 'T CODE ANN . § 2001.171 (Vernon 2000); see also, e.g., Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 172 (Tex. 2004) (holding in absence of express statutory language prohibiting judicial review, person may obtain judicial review of administrative action under Administrative Procedure Act if action adversely affects a vested property right or otherwise violates a constitutional right); Dunn v. PUC, 246 S.W.3d 788, 791 (Tex. App.—Austin 2008, no pet.) (appeal from decision of PUC). Hurley cannot collaterally attack a decision of the PUC in an appeal from a condemnation proceeding—particularly when the PUC has not even been made a party to the lawsuit. Error, if any, committed by the PUC is not before this Court in this appeal.

Hurley also argues WCEC has failed to follow the "required distance by the PUC" and has announced it does not intend to construct the facilities as described and approved by PUC Docket number 30254.6 The allegation that WCEC has failed to follow the design approved by the PUC appears to be a challenge to the authority of WCEC's authority to exercise its power of eminent domain. The allegation that WCEC has failed to follow the required distance could be interpreted as either a challenge to the authority of WCEC to condemn the property or as a challenge to the sufficiency of the damages. Hurley argues that the 100-foot easement is insufficient given that the distance required for prudent avoidance7 "is 300 feet or 500 feet." The record does not establish that the distance required for prudent avoidance in this case is 300 feet or more.8 Further, Hurley does not cite any authority for the proposition that WCEC must obtain an easement identical to the distance required for prudent avoidance. To the extent this allegation is a challenge to the sufficiency of the damages, we must presume, due to a lack of a reporter's record, the evidence of damages is sufficient. To the extent Hurley challenges the authority of WCEC to condemn the property, Hurley conceded WCEC had authority to condemn the property in her original answer in the trial court.

Finally, Hurley argues WCEC failed to purchase her property through "negotiated agreement." We note that the condemning authority has the burden of pleading and proving that it was unable to reach an agreement with the landowner before initiating the condemnation proceeding. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 180–83 (Tex. 2004). The unable-to-agree requirement, however, is not jurisdictional. Id. at 184. WCEC pled that it was unable to reach an agreement with Hurley as to the amount of damages. In the absence of a reporter's record, we must presume WCEC also proved it was unable to reach an agreement with Hurley.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter Justice

Date Submitted: September 18, 2008 Date Decided: September 26, 2008