Texas Department of Public Safety v. Stephen Rolfe Walker--Appeal from County Court at Law No. 1 of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-001-CV
HONORABLE DAN MORALES, ATTORNEY GENERAL OF THE STATE OF TEXAS,

APPELLANT

 
vs.
CHRYSLER REALTY CORPORATION,

APPELLEE

 
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY,
NO. 1723, HONORABLE DAVID PHILLIPS, JUDGE

This appeal arises from a statutory condemnation case. The State appeals from a jury verdict and judgment in favor of Appellee, Chrysler Realty Corporation ("Chrysler").

 
THE CONTROVERSY

This is another in a series of condemnation actions by the State to obtain property for the widening of U.S. Highway 183. The property owned by Chrysler is a car dealership sales facility located on the northbound IH-35 frontage road at the intersection of Blackson Avenue in Austin, Texas. This condemnation proceeding concerned the taking of approximately four-thousand square feet of frontage from Chrysler's property. As a result of the condemnation action, both parties introduced expert testimony as to the value of the part of the property being taken as well as the resulting damage to Chrysler's remaining property. The jury returned a verdict in Chrysler's favor for a total of $623,000. The trial rendered judgment. The State appeals.

The State brings forth sixteen points of error. In the main, the State complains about the Court's charge to the jury. We will affirm.

 
DISCUSSION

Limiting Instruction on Community Damages

 

In a series of these condemnation cases involving the U.S. Highway 183 project, the State has taken the position that the landowner is attempting to recover statutory condemnation damages that are non-compensable. See State v. Schmidt, 805 S.W.2d 25 (Tex. App.--Austin 1991, writ denied), State v. Munday Enterprises, 824 S.W.2d 643, (Tex. App.--Austin 1992, writ requested). These non-compensable elements generally involve the loss of access to the landowner's remaining property by the grade elevation rendered necessary by the condemnation project, the loss of visibility resulting to the remainder property as a result of the elevated roadway, and the construction disruption and inconvenience that results to the remainder property. We held in both Schmidt and Munday that while these items are not recoverable as separate items of damage they are admissible evidence on the question of diminution in value to the landowner's remainder property. In the instant cause, the trial was conducted after our opinion had been handed down in Schmidt. As a direct result of the Schmidt opinion, the State, in this case, adopted a different trial strategy. It introduced expert testimony that the remainder property had been damaged by loss of access, visibility, and construction disruption, but joined issue with the landowners on the amount of damage which had been sustained. Thus, evidence was offered by both sides on damage to Chrysler's remainder property and it was conceded on the trial of this case that some damage to the remainder property had been occasioned by the condemnation project. (1)

The State's points of error one through six complain of the failure of the trial court to give a limiting instruction in the court's charge regarding the fact that the jury should not consider any damage to the remainder property that would be in the category of "community damages." (2)

Chrysler argues that the trial court did not err in failing to give the requested instruction in the court's charge because: (1) by sponsoring evidence through its own expert witness on the so-called Schmidt elements of remainder property damages, the State waived the right to request a limiting instruction on the very same elements of damage, and; (2) no evidence of "community damages" was presented requiring a limiting instruction to be given. We agree.

It is a fundamental tenet of appellate practice that a party must timely object to the admission of evidence in order to complain on appeal. Tex. R. App. P. 52(a). The State sponsored its own evidence of these damage elements through its own expert witness. The law in Texas concerning complaining about one's own evidence is clear and unambiguous:

 

A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character.

 

McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984). The State in essence argues that the trial court erred by failing to instruct the jury not to consider portions of the State's own evidence and portions of the evidence offered by the landowner all of which was received without objection. Clearly, the failure of the State to object to any of the allegedly "tainted" evidence, which we have previously held in Schmidt and Munday to be admissible, preserves nothing for appellate review.

In addition, Chrysler argues that there is no evidence in the record for the proposition that testimony was introduced which would even qualify for a limiting instruction on the issue of "community damages." Again, we agree. The State cites this Court to some thirty-nine instances in the record where evidence of community damages was adduced. Of those, we note that only three even occurred in the jury's presence. Those three instances came late in the cross-examination of the State's own expert witness, Mr. Rudy Robinson. In all three instances, the expert witness confirmed that those elements of damage would affect the market value of the remainder property in question. Thus we cannot find in this record a single instance where community damage testimony was sponsored by either party. A limiting instruction on the general proscription regarding community damages would have only served to confuse the jury in this case. The trial court property refused to grant the instruction requested. We reiterate our holding in Munday that the term "general community damages" refers to the community at large and is not limited to other condemnee-landowners of the project in issue. Munday, 824 S.W.2d at 649. The State's points of error one through six are overruled.

 

Single Damage Issue Submission

 

Just as in Munday, the trial court submitted this condemnation upon a single broad-form condemnation damage issue which required the jury to find the difference in market value of the whole Chrysler tract as it existed before the condemnation project was initiated, as contrasted with the Chrysler remainder property after the condemnation, taking into account the effects of the condemnation project itself. (3)

In points of error twelve and thirteen the State argues that the trial court erred in refusing its requested jury issues. The State requested in separate issues one question that would have required the jury to find the value of the part taken, and then a second question requiring the jury to determine the decrease, if any, in the before and after value of the remainder property. The Texas Supreme Court has recently held in a partial-taking case that the submission requested by the State is actually the preferred method. See Westgate Ltd. v. State, 35 Tex. Sup. Ct. J. 1042 (July 1, 1992). We conclude that the trial court's single damage issue does not present reversible error for the following reasons.

First, under the evidence presented in this record the State can show no harm from the submission in question. The evidence from both sides was that the remainder property of Chrysler had been damaged. The only issue in the case was the quantification of that damage coupled with the value of the part taken. As we observed in Munday

 

In contrasting the two submissions, that of the trial court as given and that of the State as requested, it is difficult to understand the State's contention that a jury would reach a different result in either instance. A jury's damage award which finds the difference between Munday's entire tract before the condemnation as contrasted with the value of the remainder tract after the condemnation should be identically the same monetary award as the jury determining separately the value of the part taken, and then the decrease of the value in the remainder property before and after the condemnation. Munday, 824 S.W.2d at 651.

 

Therefore, just as in Munday, we hold that the trial court's charge as applied to the facts of this case did not result in harm to the State.

Second, the State's requested issues, especially that of the damage to the remainder, are not in substantially correct form. (4) Requested Jury Question No. 2 included the whole question of "community damages" of which there was no evidence in the record. The trial court correctly refused to submit an issue not raised by the evidence that would be confusing to the jury. Hernandez v. Southern Pac. Transp. Co., 641 S.W.2d 947, 953 (Tex. App.--Corpus Christi 1982, no writ). Accordingly, the State's points of error twelve and thirteen are overruled.

 

Burden of Proof

 

In points of error seven through eleven, the State contends that the trial court erred in refusing to submit within the court's charge a requested instruction defining "burden of proof" and apportioning that burden to Chrysler as the landowner. The trial court instructed the jury that they were to answer the single damage issue based upon a preponderance of the evidence. The definition of preponderance of evidence given by the trial court tracks precisely the language prescribed by the state bar committee on pattern jury charges. See 1 State Bar of Texas, Texas Pattern Jury Charges, P.J.C. 1.3, Introduction (5)(f) 1987. (5)

Recent Texas procedure has submitted the burden of proof either through (a) a global admonitory preponderance of the evidence instruction, or (b) within each jury question, usually by the phrase "do you find from a preponderance of the evidence." Tex. R. Civ. P. 277. The preferred method used in pattern jury charge is by admonitory instruction. See 1 Pattern Jury Charge, Introduction (5)(f). The court's charge in this case employed the global admonitory instruction recommended by a pattern jury charge.

The State would have required the trial court to inform the jury literally that the burden of proof was on Chrysler. While under some circumstances such a request might be appropriate, those circumstances were not present under the facts of this case. Both sides conceded that there was some market value to the part of Chrysler's property being condemned and both sides conceded that there was some damage to Chrysler's remainder property. The trial court correctly instructed the jury that they were to quantify these damages as found by them, but only based upon a preponderance of the evidence. Therefore, in a single damage issue submission the trial court appropriately placed the burden of proof upon the party specifically arguing for a monetary damage amount. As one leading treatise stated:

 

Although most questions are framed in a way that calls for an answer of "yes" or "no" or their equivalents, many forms of issues require a response in some other form--a damages issue calls for an amount of money; . . . This form of submission is not, in the ordinary case, subject to an objection that it fails to place the burden of persuasion or that it places the burden equally on both parties.

 

34 Gus M. Hodges & T. Ray Guy, The Jury Charge in Texas Civil Litigation, 53A (Texas Practice 2d ed. 1988).

Therefore, since the trial court properly included a preponderance of evidence instruction regarding the single damage issue submitted, the State's points of error seven through eleven are without merit and are accordingly, overruled.

 

Other Points

 

In points fourteen and fifteen the State claims that the verdict was not supported by sufficient evidence. Both parties called expert witnesses in this case. The State's experts felt that the total damages sustained by Chrysler were $150,000 while Chrysler's experts testified to $750,000. The jury's verdict of $623,000 was within the range of the testimony and was supported by the evidence in this case. These points are overruled.

Finally, in point of error sixteen the State claims that all of its points presented cumulative error. Since we find no error present in the trial below, we conclude that the judgment of the trial court should be in all things affirmed.

 

Mack Kidd, Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: November __, 1992

[Publish] [Do Not Publish]

1. The State's expert witness testified that the value of the part taken plus the damage to the landowner's remainder property totaled $150,000 while Chrysler's expert witness estimated the value and damage to the remainder at $750,000.

2. The requested instruction read as follows:

 

You are instructed that in answering Jury Question No. 2, you shall consider an injury, if any, or benefit, if any, that is peculiar to Chrysler Realty Corporation and that relates to Chrysler Realty Corporation's ownership, use, or enjoyment of the subject property, but you may not consider an injury, if any, or benefit, if any, that Chrysler Realty Corporation experiences in common with the general community.

3. The jury issue actually submitted was:

 
QUESTION

What is the difference in Fair Market Value between:

 

a. The whole Chrysler Realty property, without reference to or consideration of the condemnation; and

 

b. The remainder of the Chrysler Realty property, taking into consideration the effects of the condemnation.

 

Answer in dollars and cents:

4.

(STATE'S) REQUESTED JURY QUESTION NO. 2

Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by Chrysler Realty Corporation in common with the community generally and not peculiar to Chrysler Realty Corporation and connected with its ownership, use and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, what do you find from a preponderance of the evidence were the damages, if any, to the remainder of Chrysler Realty Corporation's tract of land, as improved, immediately after the taking of the strip condemned for highway purposed on March 22, 1990.

 

Answer in dollars and cents, if any.

5. The trial court in this case obviously omitted P.J.C.'s recommended language concerning "yes" or "no" answers since the charged contained no "yes" or "no" questions.