TEXAS TURNPIKE AUTHORITY,FROM A DISTRICT COURT APPELLANT, v. MSW INVESTMENTS AND CHEVRON, U.S.A. INC. (formerly GULF OIL CORPORATION), APPELLEES

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-87-00418-CV
 
TEXAS TURNPIKE AUTHORITY,FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
MSW INVESTMENTS AND
CHEVRON, U.S.A. INC. (formerly
GULF OIL CORPORATION),
 
 
        APPELLEES.OF DALLAS COUNTY, TEXAS
 
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE LAGARDE
MAY 4, 1989
        Texas Turnpike Authority (TTA) appeals a judgment entered in a case resulting from the condemnation of a portion of a tract of land owned by MSW Investments and in which Chevron had a leasehold interest. Following a hearing on TTA's petition in condemnation, held in the county court, the special commissioners rendered an award of $4,500,000, of which $4,300,000 was payable to MSW and $200,000 was payable to Chevron. All parties filed objections to the commissioners' award. Because of a boundary dispute involving a question of title to part of the condemned land, the cause was transferred to a district court. Thereafter, the boundary dispute was settled, and the remainder of the case was tried before a jury in the district court.
        The jury found that the strip of condemned land was worth $7,014,196.80 (or $78 per square foot), and also found certain values attributable to Chevron's leasehold interest in the part taken and in the remainder. Based on those findings, the trial court entered judgment granting TTA fee simple title to the condemned property, together with certain easement rights, and awarding $2,126,665.81, plus prejudgment interest of $635,153.05, and costs to MSW and $410,675, plus prejudgment interest of $122,652.78, and costs to Chevron. FN:1 TTA now appeals that judgment. We reverse and remand.
        On May 31, 1984, the stipulated date of taking, MSW owned a tract containing 516,062 square feet of land. The tract was fronted on the west side by the North Dallas Parkway, bounded on the south by Alpha Road and on the east by Bruton Drive. TTA condemned 89,925 FN:2 square feet for the Dallas Tollway Project. The portion taken was a long, narrow strip (1100 feet by 75 feet) extending the length of the west side of the property fronting the tollway. Prior to the date of taking, MSW had leased 27,677 square feet of the front, southwest corner to Gulf Oil Corporation, now Chevron U.S.A. Inc. (Chevron), and 16,329 square feet of this leasehold property were taken by TTA.
        The critical issue, raised in TTA's fifth point of error, is whether the trial court committed reversible error in admitting testimony, irrelevant to any other issue, as to the effect of the taking on the remainder of the subject property because remainder damages had been waived. Moreover, TTA contends that the trial court should have excluded speculative testimony regarding the decreased development potential of the MSW tract due to the taking. TTA further asserts that the trial court permitted the jury to utilize this evidence of damages to the remainder in arriving at an estimate of the value of the property taken.
        Prior to trial, TTA, in a motion in limine, requested the trial court to order the parties to refrain from introducing testimony or evidence of proposed or intended improvements that could have or would have, but for the taking, been constructed on MSW's property. In support of its motion, TTA argued that evidence of a hypothetical building project would be too speculative and, therefore, inadmissible. The trial court granted TTA's motion in limine as to "[e]vidence of any plans, sketches or models or proposed or intended improvements or uses of defendants' property or evidence of any plans, sketches or models of proposed improvements that could have or would have, but for the taking, been constructed on defendants [sic] property."         At trial, MSW called Bill D. Smith, an architect, as an expert witness. When MSW first offered into evidence drawings that analyzed the development potential of the site, counsel for TTA objected:
        Your Honor, we are going to object to the admissibility of these exhibits, not that we want to keep anything from the jury that we think is admissible and is proper, but the idea of an architect taking a vacant tract on which the landowner is claiming no damage and superimposing buildings on it that aren't there and then trying to claim damage to property for buildings that aren't on the tract is prejudicial and it is inadmissible and I think the courts have said that it is inadmissible.
 
        You can't if -- the tract is vacant and coming in and doing a pie in the sky and saying I would build this building or that building -- the Taj Mahal or a shack -- on it and say that that creates damage to the property is improper . . . and that is what has been done in these exhibits.
 
        We have gone in and we have drawn a 17-story office building and we have tried to damage that; we have put a series of buildings; there are no buildings out there like that, and we don't know that the hypothetical willing buyer is going to want to put those buildings on it; so it is improper for them to come in on a vacant tract on which they are claiming no damage and superimpose buildings on it and then try to say they can get more money, because they can't put some building on there that is not there.
The trial court overruled TTA's objection, and counsel for MSW continued direct examination of Smith. A little later, TTA's counsel interrupted and obtained the trial court's permission to question Smith on voir dire. After confirming, through Smith's testimony on voir dire, that no improvements were located on MSW's property, TTA's counsel made the following objection:
        At this time, Your Honor, we would object to any testimony with regards [sic] to the superimposition theoretically of buildings on the subject property, and testimony before the jury about effects that buildings that aren't on there are going to have on value.
After the court overruled the objection, TTA's counsel requested and was granted a running objection with regard to all of Smith's testimony.
        Based upon the foregoing objections, we hold that TTA protected its record. See State v. Baker, 574 S.W.2d 63, 65 (Tex. 1978). TTA's objection was sufficient to apprise all parties of the nature of the objection and to preserve its right to complain on appeal, see Price v. Gulf Atlantic Life Ins. Co., 621 S.W.2d 185, 188 (Tex. Civ. App.--Texarkana 1981, writ ref'd n.r.e.), citing Bridges v. City of Richardson, 163 Tex. 292, _____, 354 S.W.2d 366, 368 (1962), especially since the running objection was limited to similar evidence elicited from the same witness. See City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.--Fort Worth 1988, writ denied).
        Thereafter, Smith was permitted to testify about the development potential of the remainder. Smith testified that a zoning ordinance restricted MSW from building a structure more than 240 feet in height, or seventeen stories, and that another ordinance required that MSW provide one parking space for every 330 square feet of office space. Smith also stated that MSW's tract was located in a suburban area, and, therefore, a structure should be set back seventy-five to 100 feet from the major roadway even though ordinances required only a twenty-five foot setback. Smith also testified that he preferred that the buildings be spaced 100 feet apart. Smith admitted that the "floor area ratio" zoning ordinance would permit MSW to build over 2,000,000 square feet on the remainder of MSW's tract; however, Smith explained that, as a practical matter, 1,500,000 square feet of building would be more desirable because of potential parking problems.
        Through Smith, MSW was able to introduce a series of exhibits depicting four buildings ranging between twelve and seventeen stories high facing the tollway. Behind these buildings was a nine-story parking garage. These exhibits depicted the potential development of the MSW tract before and after the taking. Smith testified that most of the plans were not feasible on the MSW tract after the taking because the buildings would be twenty-five feet from the service road located along the front boundary of the property. Smith explained that although this twenty-five foot setback did not violate any ordinance, he did not find the plans acceptable with respect to good planning because the parking garages were narrower and, therefore, failed to accommodate the requisite number of cars. Smith stated that in order to create the requisite number of parking spaces with a narrower garage, the garage would have to be increased to thirteen and one half stories which, Smith speculated, most people would not accept. Smith concluded that these plans would decrease the building potential from 1,500,000 square feet to 1,026,000 square feet.
        Finally, Smith testified that he could devise a plan to increase the building potential to 1,209,516 square feet. However, Smith explained that this option would be "deplored" because parking garages would be located at northern and southern boundaries with two additional surface parking lots at the back of the property and one surface parking lot at the front of the property which would actually adjoin the tollway. Smith also testified that although underground parking is acceptable, it is not feasible because it costs forty to sixty percent more per car to build when compared to above-ground parking (not surface). Smith explained that underground parking also results in psychological and emotional problems because people become disoriented below-ground.
        We conclude that Smith's testimony regarding plans and the intended use of the property was improper because the testimony was wholly speculative. See Melton v. State, 395 S.W.2d 426, 429 (Tex. Civ. App.--Tyler 1965, writ ref'd n.r.e.); see also Triland Inv. Group v. Warren, 742 S.W.2d 18, 26 (Tex. App.--Dallas 1987, no writ); Bruner v. State, 391 S.W.2d 149, 156 (Tex. Civ. App.--Fort Worth 1965, writ ref'd n.r.e.), cert. denied, 383 U.S. 945 (1966). The rationale underlying exclusion of speculative testimony was best explained by the Texas Supreme Court:
        Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. Evidence should be excluded relating to remote, speculative, and conjectural uses, as well as injuries, which are not reflected in the present market value of the property.
State v. Carpenter, 126 Tex. 604, 615, 89 S.W.2d 194, 200 (Tex. Comm'n App. 1936, opinion adopted)(emphasis added)(citation omitted). Thus, although damages to the property taken may be ascertained by determining the highest and best use to which the land is adaptable, how the property might best be developed is not a matter for the jury's consideration. See Melton, 395 S.W.2d at 429. Here, it is undisputed that the MSW tract was most suitable and adaptable for commercial use. FN:3 It was also undisputed that MSW had done nothing toward altering the surface, with the exception of the Gulf station, nor had any improvements been placed upon it pursuant to any such plans or intended uses. Thus, Smith's testimony was not relevant to any matter at issue between the parties. It has been held that evidence as to the landowner's subjective intent concerning the future use of the property is inadmissible. Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281, 288 (Tex. Civ. App.--Tyler 1975, writ ref'd n.r.e.). Accordingly, we conclude that Smith's testimony regarding the potential development of the remainder of MSW's tract was inadmissible.
        Because we hold that the trial court erred in admitting before the jury evidence of the potential development of MSW's tract, we must now determine whether the admission of that evidence resulted in reversible error. Upon review of the entire record, we are of the opinion that the erroneous admission of this evidence was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. See TEX. R. APP. P. 81(b)(1); see also Nix v. H. R. Management Co., 733 S.W.2d 573, 576 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). Although the jury verdict of $7,014,196.80 is within the range established by the testimony, FN:4 the jury's valuation is very close to that of appellee's witnesses. When the trial is contested and the evidence is sharply conflicting, the error results in a materially unfair trial. See Nix, 733 S.W.2d at 576. Here, there can be no doubt that MSW was successful in impressing upon the jury the fact that the Tollway Project was detrimental to the potential development of the remainder of the MSW tract. We conclude that the prejudicial effect of this erroneously admitted evidence is reflected in the jury's verdict. TTA's fifth point of error is sustained.
        Because we hold that the evidence was prejudicial and, thus, reversible error was committed, the remaining points of error and MSW's cross-point will not be addressed. TEX. R. APP. P. 90(a).
        The judgment of the trial court is reversed, and the cause is remanded.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
87-00418.F
 
 
FN:1 TTA had previously paid the commissioners' award of $4,500,000, of which $4,476,855.99 was paid to MSW and Chevron and $23,144.01 paid to Grover Hope, who disclaimed any proceeds awarded as a result of the jury verdict. Consequently, the judgment awards the difference in the jury's award and the commissioners' award.
FN:2 Although all parties stipulated, prior to trial, that TTA took 89,925 square feet, testimony establishes and the charge states that 89,925.6 square feet were taken by TTA.
FN:3 Chevron's witnesses valued damages to Chevron's leasehold and remainder as general retail property; however, this valuation did not include the entire MSW tract.
FN:4 Value of Value of [Chevron's]
Land taken leasehold interest
Witness from MSW part taken & remainder McClellan (MSW) $8,632,857 -
Rowland (MSW) $7,643,676 -
Cottrell (TTA) $2,783,004 -
Rowan (Chevron) - 637,675
File Date[01-02-89]
File Name[870418F]