Blossman v. State

• Decision Date: 22 June 1972
• Docket Number: No. 702,702
• Citation: 482 S.W.2d 937
• Parties: Odelia H. BLOSSMAN et al., Appellants, v. STATE of Texas et al., Appellees.
• Court: Texas Court of Appeals

Page 937

482 S.W.2d 937

Odelia H. BLOSSMAN et al., Appellants, v. STATE of Texas et al., Appellees.

No. 702.

Court of Civil Appeals of Texas Corpus Christi.

June 22, 1972.

Horkin & Dorsey, Patrick J. Horkin, Jr., J. R. Keeling, Corpus Christi, for appellants.

C. Edwin Prichard, Jr., Asst. County Atty., Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a condemnation case. Suit was brought by the State of Texas and the County of Nueces against Odelia H. Blossman, et al, to acquire a 3.273 acre tract of land in Nueces County, Texas, hereinafter sometimes called the 'Blossman tract', for highway purposes. It was stipulated that the only fact issue to be determined was the market value of the land that was taken by condemnation. The landowners waived their right to any claim for damages to the remainder of their land out of which the 3.273 acre tract was taken. After a jury trial, a judgment in favor of the landowners was entered on the jury finding that the market value of the land which was condemned was $7,200.60. Odelia H. Blossman, et al, the landowners, have duly perfected their appeal from the judgment entered. We affirm.

The land that was taken is located immediately west of the unincorporated community of Violet and is about 2.8 miles east of the city limits of Robstown and about 3.1 miles west of the city limits of Corpus Christi. It is a 'panhandle' shape tract of land, 82% Of which fronts 539.87 feet on the south side of Highway 44. That portion fronting on the highway is 230 feet deep on the west side and about 200 feet deep on the east side. The remaining 18% Is in the 'panhandle' portion, about 417 feet in length and varying in depth from about 72 feet on the west to 51.51 feet on the east.

Appellants, by their first two points of error, complain of the trial court's refusal to admit the testimony of Mr. Bob Crow, an expert witness, relative to two sales, the 'Ramon tract' and the 'Cotton tract', as comparables to support his opinion as to the market value of the Blossman tract, the land acquired by condemnation. These points cannot be sustained.

It is undisputed that the Blossman tract was unimproved at the time it was taken. The 'Ramon tract' was improved with a residence and the sale price thereof included the house and improvements. Our Supreme Court has held that sales of improved property are not admissible as comparables in determining the value of unimproved property. State v. Chavers, 454 S.W.2d 395 (Tex.1970).

Concerning the 'Cotton tract', the record shows that it is in or very near the city limits of Robstown, some distance from the land involved in this appeal. 'The general rule in such cases is that the question of the degree of similarity in the land involved in a claimed comparable sale, including the relative nearness of time and distance to the sale and land under consideration, is left largely to the discretion of the trial court'. State v. Childress, 331 S.W.2d 230 (Tex.Civ.App.--Eastland 1960, writ ref'd n.r.e.). The trial court did not abuse its discretion in excluding the testimony as regards the sale of the 'Cotton tract'.

The witness Crow did testify as to other sales, which he used as comparables to support his opinion as to the market value of the land in question. We have read the statements in the briefs of both parties and have examined the unchallenged representations made by the attorneys for both condemnors and condemnees relative to the 'Ramon sale' and the 'Cotton sale', and are of opinion that even if the matter of the testimony relating to the excluded sales was properly before this Court, reversible error would not be shown. Mr . Crow placed the value of the Blossman tract at a figure considerably higher than that found by the jury. The exclusion of such testimony as primary evidence of a comparable sale or as corroborative evidence of Crow's expert opinion of the market value of the condemned tract, was not of such nature as to be reasonably calculated to cause nor did it cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. In addition, the statement of facts does not set out or show either of the two transactions, nor is there a bill of exception showing the substance of the excluded testimony. We cannot say that the trial court erred in excluding such testimony. Field v. Sosby, 226 S.W.2d 484 (Tex.Civ.App.--Waco 1950, writ ref'd); Appellate Procedure in Texas, § 9.8(3). Appellants' first and second points are overruled.

Appellants, in their point three, say that the trial court erred in admitting the testimony of appellees' witness, Mr. Ralph Cobb, as to his opinion of the market value of the condemned land on the date it was taken, for the reason that he was neither qualified as an expert witness nor as a lay witness with the knowledge of the condemned land necessary to support a market value opinion. We do not agree. It is true that the witness Cobb did not make an appraisal of the condemned land, had no knowledge of the land at the date of its taking on December 9, 1968, and never saw the land until August 9, 1971, a few days before the trial. However, he testified that he was a real estate broker and had been actively engaged in the real estate business and field continuously since 1954. He performed services at various times for a number of clients who were interested in buying lands located in the general area of the land involved. Since 1954, he had been an active broker in the area between Corpus Christi and Robstown in the general area of Highway 44, selling over 500 acres in 13 parcels in that area. His real estate company had a sales value of $1,300,000.00 for the period January 1, 1971 to August 9, 1971, the date of trial. He further testified that from his experience as a real estate broker and particularly the experience he had had in the general area of the condemned tract that he had an opinion as to values of lands in that locale as of the date of its taking in December, 1968. Prior to trial he had actually visited the property that was taken by condemnation and was familiar with its layout.

The qualification of a witness to testify as to the market value of property is largely within the discretion of the trial court, and the appellate court should not disturb the action of the trial court in the absence of a clear abuse of that discretion. State v. Evans, 340 S.W.2d 99 (Tex.Civ.App.--Waco 1960, writ ref'd n.r.e.); Premier Petroleum Co. v. Box,255 S.W.2d 298 (Tex.Civ.App.--Eastland 1953, writ ref'd n.r.e.). It is, however, essential that the expert witness have some acquaintance with the land and its market value at the time of trial. Hubbard v. Harris County Flood Control District, 286 S.W.2d 285 (Tex.Civ.App.--Galveston 1956, writ ref'd n.r.e.); Texas Pacific Coal & Oil Co. v. Taylor, 47 S.W.2d 1110 (Tex.Civ.App.--Eastland 1932, n.w.h.); Houston Lighting & Power Co. v . Daily,291 S.W. 317 (Tex.Civ.App.--Galveston 1927, writ dism'd). 'The rule undoubtedly is that, where it appears a witness' testimony is predicated upon both personal knowledge and upon hearsay, his testimony is admissible.' Norris v. Lancaster, 280 S.W. 574 (Tex. Comm'n App.1926). When a witness testified that he is acquainted with the market value of the real estate in that market, he is qualified to testify concerning such value. Natural Gas Pipeline Company of America v. Towler, 396 S.W.2d 917, 922 (Tex.Civ.App.--Corpus Christi 1965, n.w.h.); Texas Sanitation Co. v. Marek,381 S.W.2d 710 (Tex.Civ.App.--Corpus Christi 1964, n.w.h.); State v. Newton, 391 S.W.2d 758 (Tex.Civ.App.--Waco 1965, n.w.h.). See Texas Land of Condemnation, § 126, pp. 400-402.

In this case, the witness Cobb was qualified to give his opinion as to market value of the Blossman tract. Appellants' criticisms of Mr. Cobb's qualifications go to the weight of his testimony rather than to its admissibility. Appellants' third point is overruled.

We next consider appellants' sixth point of error, wherein it is claimed that the verdict of the jury and the judgment rendered thereon are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellants presented testimony of three witnesses concerning the market value of the 3.273 acre tract at the time of taking. Mr. Kilgore and Mr. Winship were lay witnesses, and Mr. Crow was an expert. Testimony as to the sales price of several tracts was received in evidence. One such sale involved a lot (the Kilgore lot) located about 450 feet east of the most northerly northeast corner of the 3.273 acre tract, fronting 50 feet on Highway 44 and 168.5 feet deep, containing .19 acres that was sold by Mr. Kilgore under a contract sale for $2,500.00. The terms of the contract were $30.00 down and $30.00 per month, bearing 7% Interest. Other sales relied upon by appellants were sales of small tracts out of an 18.7 acre tract (the Tidwell tract) located about 1.5 miles west of the condemned tract. These tracts fronted on Highway 44. The 18.7 acre tract fronted 1,000 feet on the highway and was over 800 feet deep; one of the small tracts, above mentioned, fronted 300 feet on the highway; each of the three other tracts fronted 100 feet on the highway; they varied in depth from about 600 feet to over 800 feet; the tracts contained 5.7, 1.9, 1.4 and 1.88 acres, respectively. Using a front foot basis, the tracts sold from $36.50 to $49.50 per front foot. Using an acreage basis, the lands sold from $1,900.00 to $2,934.00 per acre. Mr. Crow, after considering the above sales, placed a market value of $20,853.12 on the Blossman tract.

Appellees presented testimony of two witnesses, Mr. Cobb and Mr. Erickson, concerning the market value of the Blossman tract at the time in question. These witnesses also relied on the sales of the small tracts out of the 'Tidwell tract' as comparables in determining market value of the condemned tract. It was pointed out that these sales...