Uehlinger v. State

• Decision Date: 11 February 1965
• Docket Number: No. 43,43
• Citation: 387 S.W.2d 427
• Parties: Marion R. UEHLINGER et al., Appellants, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 427

387 S.W.2d 427

Marion R. UEHLINGER et al., Appellants, v. STATE of Texas, Appellee.

No. 43.

Court of Civil Appeals of Texas, Corpus Christi.

Feb. 11, 1965.

Rehearing Denied March 4, 1965.

Fisher Alsup, Corpus Christi, for appellants.

Winston P. Crowder, Asst. Atty. Gen., Austin, for appellee.

SHARPE, Justice.

This is a condemnation case brought by the State of Texas, appellee, at the request of the State Highway Commission. The appellants are Mrs. Marion R. Uehlinger, individually and as guardian of the persons and estates of her two minor daughters, Julia Maurine Uehlinger and Eleanor Elaine Uehlinger, and also the said two minors, all of whom were condemnees and defendants in the trial court. The case involves the whole taking of a 3.1714 acre tract, located in the City of Corpus Christi. Texas, excluding certain mineral interests, for which the judgment, based upon a jury verdict, awarded appellants the sum of $8,750.00.

Appellants assert nine points of error. Points one through four attack the jurisdiction and authority of the trial court to proceed to trial or to enter judgment involving the interests of said minors, principally because citation was not issued or served on them after the filing in the County Court of the State's objection to the award of the commissioners, and for the reason that a guardian ad litem was not appointed to represent the minors' interests upon the jury trial in said court.

Point five asserts error because the trial judge excluded the testimony of a State's witness concerning his first appraisal of the property in question, which gave it a higher value than that shown by his later appraisal. Appellants' points six through nine complain of an instruction to the jury that in fixing market value of said property, it would 'not take into consideration the increased value of said * * * land due to such highway construction.'

For the reasons hereafter more fully discussed we have concluded that appellants' first four points reflect error for which the case must be reversed and remanded for new trial. Since it appears that some of the important questions raised by points five through nine may arise on a new trial, we believe that some discussion of them is indicated.

The petition in condemnation herein was filed with the County Judge on February 27, 1963, and Commissioners were appointed on the same date. At the request of appellee, a guardian ad litem was named to represent the minors prior to the hearing before the Commissioners. Proper notice of such hearing was given to all parties. Appellee objected to the award of the Commissioners, made on March 23, 1963, and appealed to the County Court of Nueces County, Texas. The case was tried to the court and jury on July 8th and 9th, 1963. The jury answered the single special issue submitted to it by fixing the market value of the property on July 9, 1963, at $8,750.00. Judgment was rendered that appellants recover such amount, that the State of Texas have fee simple title to the tract involved, excluding certain mineral interests, and for payment of taxes to agencies not involved in this appeal. The State did not pay or deposit the amount awarded by the Commissioners prior to the trial herein nor did it theretofore take possession of the land in question. It is agreed, under such circumstances, that the date of taking was July 9, 1963, i. e., the date upon which the jury returned its verdict. ¹

Appellants' contentions under their points one through four largely arise for the reason that citation was not issued or served after the papers were filed with the County Clerk on April 10, 1963, pursuant to the appeal of the State, and because a guardian ad litem was not appointed to represent the minor defendants in connection with the trial in the County Court. Reliance is placed, particularly, upon Section 6, Art. 3266, Vernon's Ann.Tex.Civ.St., which provides that upon the filing of objections to the award of the Commissioners, the adverse party shall be cited and the cause shall be tried and determined as in other civil cases in the County Court.

We recognize the rule that a minor defendant cannot waive service of citation like an adult and cannot authorize someone else to do so for him. ² In this case the record shows that Mrs. Marion R. Uehlinger is the legally appointed guardian of the persons and estates of her two minor daughters and that she appeared in the County Court individually, and as guardian for said minors upon the trial of this case. The same attorney who represents appellants in this Court purported to act for all of them in the lower court. Hence, the question is presented as to whether the voluntary appearance and participation in the County Court trial by such guardian, on behalf of herself and her wards, made unnecessary the issuance and service of citation on the minors and authorized the lower court to exercise jurisdiction over the minors' interests in the property sought to be condemned.

It is provided, in substance, by Section 7, Article 3264, V.A.C.T.S., that notice of the Commissioners' hearing shall be given to a minor who owns property sought to be condemned by serving his personal representative if he has one. That such notice was properly given in this case is not questioned. Section 230(b), Texas Probate Code, V.A.T.S. authorizes the guardian of the estate of a minor to sue and defend generally on the ward's behalf, and Article 1981, V.A.C.T.S., contains additional provisions relating to institution of suits by guardians concerning both real and personal property. However, it is well settled that the regular guardian of a minor's estate cannot represent him in a suit if a conflict of interest exists between them. ³

The minors herein were named as individual defendants along with their guardian but were not served with citation in the County Court trial. While this matter was still an administrative proceeding, and prior to the hearing before the Commissioners, the State filed a motion in which it represented to the court that a conflict of interest existed between the minors and their guardian as affects this proceeding. The County Judge granted the State's motion, entered an order expressly finding that such conflict existed, and appointed a guardian ad litem who represented the minors at the Commissioners' hearing but did not appear or participate in the County Court trial. The guardian ad litem was not authorized in such capacity to waive citation of service on the minors after the matter became a case in the County Court pursuant to the State's appeal. There was no subsequent finding that this conflict of interest had ceased to exist. Such conflict of interest between the minor wards and their guardian required the trial court to appoint a guardian ad litem to represent the minors in the County Court trial. Unless jurisdiction of the individual wards had been acquired by proper service of citation (which could not be waived under the conditions prevailing here) the court had no authority to appoint a guardian ad litem or to proceed to trial as to the minors. ⁴ So long as there is a legal conflict of interest between the guardian and the minors, the usual procedure of issuance and service of citation on all parties is required and a guardian ad litem should be appointed to represent the interests of the minors at the earliest practicable time in advance of the trial in the County Court.

For the reasons stated, appellants' points one through four are sustained.

By their point number five, appellants contend that the trial court erred in sustaining appellee's objection to the testimony elicited on cross-examination of the State's witness, Henry Stone, to the effect that his first appraisal of the property in question, made in the month of November, 1961, showed the market value of the property to be $9,500.00, and his later appraisal of its market value as of the date of taking was some $2,000.00 less, and as to why such difference existed. The trial judge ruled correctly in such connection. The record shows that between the dates of the two inspections by the witness Stone the improvements on the property in question had been damaged by third persons. Counsel for the State was aware of such fact prior to the trial and filed a motion in limine to suppress evidence of such damage which occurred prior to the date of taking by the State. When such testimony was offered at the trial out of the presence and hearing of the jury the trial judge simply adhered to his prior ruling. The State was liable only for the reasonable market value of the property as of the date of taking, which in this case was July 9, 1963, and not on some prior date. Appellants' point number five is overruled.

Under points six through nine appellants complain of an instruction given to the jury in the exact wording requested by counsel for the condemnor (to which appellants say proper objections were made), as follows:

'You are instructed that in determining the market value of the 3.174 acres of land taken for highway construction you shall not take into consideration the increased value of said 3.174 acres of land due to such highway construction.'

Unfortunately, the record does not show that appellants' objections were properly preserved for appellate review. The single objection to said instruction which is shown by the record is too general and cannot be considered. The specific objections allegedly made to said instruction, which are argued under appellants' points six through nine, are not properly established by the record. The transcript contains two pages designated as appellants' objections and exceptions to the court's charge; but the signature or endorsement of the trial judge does not appear thereon and we cannot ascertain that such objections were presented to and ruled on by him. We, therefore, cannot properly consider appellants' points six through nine as grounds for reversal. ⁵...