Doris Gray, et al. v. The County of Johnson--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-96-181-CV

DORIS GRAY, ET AL.,

Appellants

v.

THE COUNTY OF JOHNSON,

Appellee

From the County Court at Law

Johnson County, Texas

Trial Court # C95-00112

O P I N I O N

This is an appeal from a summary judgment in a condemnation proceeding. We will reverse the judgment.

In 1981, Doris Gray and her son, Mark Watts, ("Appellants") purchased 45 acres of farm land in Johnson County. Although the purchase deed described 45 acres, additional acreage was "under fence." Appellants built a restaurant on a portion of the property. In 1982, they paved a .176-acre portion of the property that had not been described in the deed but had been "under fence" by the previous owner. // They put gravel on a .068-acre portion that was included in the deed. // Both parcels, together with other property, were used for restaurant parking.

CONDEMNATION PROCEEDINGS

Upon the filing of a condemnation petition, the court appoints three disinterested freeholders as special commissioners to assess the damages of the property owner. Tex. Prop. Code Ann. 21.014 (Vernon 1984). The special commissioners conduct a hearing in which they may compel the attendance of witnesses and the production of testimony. Id. & 21.015 (Vernon 1984).

The special commissioners assess damages according to the evidence presented at the hearing. Id. 21.042 (Vernon 1984 & Supp. 1997). As a basis for assessing actual damages, the commissioners shall admit evidence on: (1) the value of the property being condemned; (2) the injury to the property owner; (3) the benefit to the property owner's remaining property; and (4) the use of the property for the purpose of the condemnation. Id. 21.041 (Vernon 1984). If a portion of a tract or parcel of land is condemned, the special commissioners "shall determine the damage to the property owner after estimating the extent of the injury and benefit to the property owner, including the effect of the condemnation on the value of the property owner's remaining property." Id. 21.042(c).

A party to a condemnation proceeding may object to the findings of the special commissioners. Id. 21.018 (Vernon 1984). If a party files timely objections to the findings, the court "shall cite the adverse party and try the case in the same manner as other civil causes." Id.

PROCEEDINGS BELOW

In 1993, Johnson County began condemning property for a farm-to-market highway. Negotiations began between Appellants and the county, but problems arose when the county determined that Appellants did not own Parcel 79. // Unable to reach an agreement, the county filed a condemnation proceeding on Parcel 76 in July of 1994. The county court at law judge appointed special commissioners to assess damages.

Appellants answered the suit in February 1995, cross-claiming that in addition to Parcel 76, they owned the contiguous Parcel 79. The special commissioners held a hearing on April 11, 1995, and awarded $1,575 in damages for the taking of Parcel 76. Appellants complained that they were not allowed to introduce evidence regarding Parcel 79 at the hearing. Appellants filed an objection to the award, asserting that the county had taken Parcel 79 without compensation and that the damages awarded were grossly inadequate because they had not been paid for all the land taken and had not been paid remainder damages.

During the course of the condemnation proceedings on Parcel 76, Appellants filed suit in the district court regarding Parcel 79. They sought injunctive relief and damages on theories of trespass, negligence, and nuisance. //

Johnson County filed a motion for summary judgment in the condemnation proceeding, asserting that no genuine issue of material fact existed as to Parcel 76. Appellants responded that the fact issue was "very simple": they claimed title to Parcel 79 by adverse possession and no fair award or assessment of damages could be made without determining the ownership of Parcel 79. The court granted the summary judgment.

Appellants assert that the court erred in granting the summary judgment because fact questions exist. First, they assert that they were not paid for all the property that was taken. Second, they assert that damages to the remainder were not paid.

The county argues that the underlying lawsuit was solely for the purpose of condemning and valuing Parcel 76. Because Gray conceded in her deposition that the special commissioners properly valued Parcel 76, the county contends that no genuine issue of material fact exists.

SUMMARY JUDGMENT

The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 549. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id.

The county's summary-judgment motion asserted that "based on the pleadings, affidavits, depositions, and briefs filed," there was no genuine issue of material fact as to Parcel 76. The motion referred to Gray's deposition in which she agreed with the State's fair market valuation of Parcel 76. Counsel for Johnson County attached his affidavit, stating that he had personal knowledge that the facts alleged in the motion were true and correct.

Initially, Appellants complain that counsel's affidavit is a verification, rather than an affidavit, and thus is fundamentally defective and is insufficient summary-judgment proof. Tex. R. Civ. P. 166a. First, Rule 166a specifically provides that a party may move for summary judgment "with or without supporting affidavits." Id. 166a(a). Second, "defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party . . . ." Id. 166a(f). There is nothing in the record to indicate that Appellants objected to counsel's affidavit. Id; see also Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex. App. Waco 1992, no writ). We believe the county's motion for summary judgment was proper and thus we move to its merits.

Gray's deposition was before the court. The relevant portion of her deposition follows:

[APPELLEE'S ATTORNEY]: What, in your opinion, is [the] fair market value of that 0.068 acres of property [Parcel 76] that the State's taken in this condemnation suit?

[GRAY]: The State took more property than that.

[APPELLEE'S ATTORNEY]: The State in this lawsuit in this condemnation proceeding is taking 0.068 acre of property and the -- your remaining property is some 3.9 acres. I'm asking you what, in your opinion, is a fair market value of that being taken?

. . .

You don't have an idea as to what property is described in Petition in Condemnation by Johnson County, what that property being taken is worth?

[TO GRAY'S ATTORNEY]: And you're instructing her not to answer that question?

[GRAY'S ATTORNEY]: All I'm asking is I'm -- I'm instructing her not to answer the question if it's a relationship to her damages. What the property is worth, she agrees with what the State put on it as to that 0.068 acres, period. But that's not all the property being taken.

[APPELLEE'S ATTORNEY]: All right. Does she really agree to that?

[GRAY]: Yes, yes, sir.

[GRAY'S ATTORNEY]: She'll agree -- ask her.

[APPELLEE'S ATTORNEY]: You agree, not withstanding anything else, that the 0.068 acre of property is the value of what, $1800 (sic), 1575?

[GRAY'S ATTORNEY]: I don't know. I think they valued it at 4,000 an acre. I'm not too sure. Whatever the State says, she agrees to that. If you take that into [a] vacuum, that's what it's worth.

[APPELLEE'S ATTORNEY]: But you agree with what your lawyer said there?

[GRAY]: Yes, whatever my lawyer answered.

[APPELLEE'S ATTORNEY]: That the property is valued at what the State valuates it at?

[GRAY'S ATTORNEY]: Right.

The county moved for summary judgment on the grounds that as to Parcel 76 there is no genuine issue of material fact because Gray agrees with the State's valuation. Taken in a "vacuum," Gray's deposition testimony establishes that she agreed with the State's valuation of Parcel 76. However, the State's valuation of the parcel does not appear to contemplate any remainder damages. Attached to Appellants' response to the motion for summary judgment is a letter from Jerry Jones, the State's appraiser. Based on comparable sales, Jones determined that the "value of Parcel 76" is $1,575. His valuation does not mention remainder damages.

Appellants objected to the award of the special commissioners because Parcel 79 was taken without compensation and because remainder damages had not been awarded. Although the majority of Appellants' efforts have been focused on bringing Parcel 79 into the underlying condemnation suit, we do not address that issue. Instead, we focus on their second argument that a fact issue exists as to damages to Appellants' remaining property, excluding Parcel 79, that resulted from the taking of Parcel 76.

The State's appraiser apparently found no damage to that remainder. Taking Gray's testimony as true, indulging every reasonable inference in Appellants' favor, and resolving all doubts in their favor, we necessarily conclude that a genuine issue of material fact exists about whether the remaining property, indisputably owned by Appellants, was damaged as a result of the taking of Parcel 76. Nixon, 690 S.W.2d at 547-48. Having found a material fact issue that requires reversal, we are content to leave the dispute over Parcel 79 to the District Court.

We reverse the summary judgment and remand the cause to the trial court.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed February 19, 1997

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