Callejo v. Brazos Elec. Power Co-op., Inc.

• Decision Date: 22 June 1988
• Docket Number: No. C-7306,C-7306
• Citation: 755 S.W.2d 73
• Parties: William F. CALLEJO, Trustee, et al., Petitioners, v. BRAZOS ELECTRIC POWER COOPERATIVE, INC., Respondent.
• Court: Texas Supreme Court

Page 73

755 S.W.2d 73

William F. CALLEJO, Trustee, et al., Petitioners, v.BRAZOS ELECTRIC POWER COOPERATIVE, INC., Respondent.

No. C-7306.

Supreme Court of Texas.

June 22, 1988.

Rehearing Denied Sept. 14, 1988.

Mike McKool, Law Offices of Mike McKool, Dallas, for petitioners.

R. Coke Mills and Patrick D. Millar, Mills, Millar & Matkin, Waco, for respondent.

KILGARLIN, Justice.

In this easement condemnation case the trial court disregarded the jury's finding of post-taking value, substituted its own finding, and rendered judgment accordingly.The court of appeals reversed that judgment, concluding that the jury's finding was supported by the evidence.745 S.W.2d 70.We reverse the judgment of the court of appeals and affirm that of the trial court.

Callejo owns a 130.71 acre tract of land in Dallas County.Brazos owns a general easement across the tract which permits Brazos to construct, operate, and maintain an electric transmission line on the property.In 1948, Brazos constructed a 69,000 volt electric transmission line on the tract.The transmission line was operated until 1985, when Brazos decided to reconstruct the line and raise it to a 138,000 volt capacity.Brazos filed a petition in condemnation and the court appointed special commissioners to assess damages.Callejo objected to the commissioners' award, and the cause proceeded to jury trial on the sole issue of damages.

At trial, both parties adduced testimony as to the value of the condemned easement strip before and after construction of the larger transmission line.Brazos called two expert witnesses, each of whom testified that the value of the easement strip prior to the condemnation was $67,082.Brazos' experts testified that the post-taking value of the easement strip was $33,541.Callejo and his two expert witnesses testified that the pre-taking value of the easement strip ranged from a high of $729,256 to a low of $643,987.20.Callejo and his witnesses all testified that the post-taking value of the easement strip was zero.

The case was submitted to a jury on four questions.The jury found that the value of the easement strip prior to the condemnation was $456,161 and, separately, that the post-taking value of the easement strip was $364,928.80.The jury further found that the remainder of Callejo's property did not decrease in value after the condemnation.

Brazos moved for judgment on the jury's verdict in the amount of $91,232.20, the difference between the pre-taking and post-taking values found by the jury.Callejo, however, moved for judgment notwithstanding the verdict and asked the court to disregard the jury's answer of $364,928.80 for the post-taking value of the easement strip because the jury's answer was not supported by any evidence.The trial court granted Callejo's motion and substituted its own finding of $33,541 as the post-taking value.The trial court then rendered judgment for Callejo in the amount of $422,620, the difference between the jury's finding for pre-taking value and the amount the court found for post-taking value.

In its reversal the court of appeals reinstated the jury's finding on post-taking value, and rendered judgment for Callejo in the amount of $91,232.20.The court of appeals held that there was evidence to support the jury's finding of post-taking value; therefore, it was error for the trial court to disregard the jury's finding and render judgment notwithstanding the verdict.¹ Callejo contends there was no evidence to support the jury's finding on post-taking value.²We agree.No witness testified higher than $33,541 as to post-taking value, yet the jury found $364,928.80.We reject Brazos' argument (and the lower court's ruling) that the jury could blend all the testimony, including testimony on pre-taking value, in making its finding on post-taking value.

Consequently, we disapprove statements or holdings in various courts of appeals' decisions to the extent they may conflict with this opinion.Those cases include: Red River Pipeline v. Amonett, 695 S.W.2d 802, 809(Tex.App.--Amarillo 1985, no writ);Pedernales Electric Cooperative, Inc. v. Baker, 685 S.W.2d 459, 460(Tex.App.--Austin 1985, no writ);Leiber v. Texas Municipal Power Agency, 667 S.W.2d 206, 207-08(Tex.App.--Houston [14th Dist.]1983, writ ref'd n.r.e.);Delhi Gas Pipeline Corp. v. Richards, 659 S.W.2d 861, 865-66(Tex.App.--Tyler 1983, no writ);Texas Electric Service Co. v. Wheeler, 550 S.W.2d 297, 302(Tex.Civ.App.--Fort Worth1976), aff'd on other grounds, 551 S.W.2d 341(Tex.1977);Silberstein v. State, 522 S.W.2d 562, 563-65(Tex.Civ.App.--Austin 1975, no writ);Ker v. State, 462 S.W.2d 380, 382(Tex.Civ.App.--El Paso1970, writ ref'd n.r.e.);City of Houston v. Hendrix, 374 S.W.2d 764, 765-66(Tex.Civ.App.--Austin1964, writ ref'd n.r.e.);Tuttle v. State, 381 S.W.2d 330, 336(Tex.Civ.App.--Texarkana1964, writ ref'd n.r.e.);Roberts v. State, 350 S.W.2d 388, 391(Tex.Civ.App.--Dallas 1961, no writ);McConnico v. Texas Power & Light Co., 335 S.W.2d 397, 399(Tex.Civ.App.--Beaumont1960, writ ref'd n.r.e.);State v. Haire, 334 S.W.2d 488, 491(Tex.Civ.App.--Austin1960, writ ref'd n.r.e.);Maddox v. Gulf, Colorado & Santa Fe Railway Co., 293 S.W.2d 499, 506-07(Tex.Civ.App.--Fort Worth1956, writ ref'd n.r.e.).

Brazos suggests that to uphold the trial court is to casually discard respectable authorities and interfere with the jury's ability to do justice in the individual case.This reasoning, however, completely ignores Rule 301 of the Texas Rules of Civil Procedure.That rule permits the trial court, "upon motion and reasonable notice ..., [to] disregard any jury finding on a question that has no support in the evidence "(emphases added).There is simply no testimony or other evidence in this record that the post-taking value was higher than $33,541, yet Brazos would have us uphold an answer more than ten times higher based on (1) a "blending" of the testimony on post-taking value with that on pre-taking value, and (2) the jurors' presumed knowledge and experience.

We do agree that jurors are not bound, as a matter of law, to accept the parties' expert testimony.But, that does not authorize jurors to leap entirely outside of the evidence in answering any question submitted to them.In fact, our required jury instructions state: "All evidence must be presented in open court....[Y]ou will render a verdict on the evidence submitted to you....Do not tell other jurors your own personal experiences [or] any special information."Approved Instructions Promulgated Pursuant to Tex.R.Civ.P. 226a(emphases added).We also find unpersuasive the argument that the jurors were entitled to rely on their own knowledge and experience as a substitute for the parties' evidence on post-taking value.CompareTex.R.Civ.Evid. 606(a)(absolutely prohibiting jurors from giving evidence); 602 (evidence inadmissible unless witness shown to have personal knowledge concerning subject of testimony).

Although the right of trial by jury must remain inviolate, Tex. Const. art. I, § 15, nevertheless a jury answer cannot be upheld when it has no support in the evidence.In this case, neither party objected to separate submissions on pre- and post-taking values.Under Tex.R.Civ.P. 301, the trial court could disregard the jury's answer to either question on no evidence grounds.We hold the trial court properly disregarded the jury's answer on post-taking value.

We note that under Tex.R.Civ.P. 277(as in effect when this case was tried), it was discretionary with the trial court whether to submit separate questions or instead to submit issues broadly.As amended effective January 1, 1988, Rule 277 requires the court in jury cases to submit broad-form questions whenever feasible.The measure of damages in a condemnation proceeding is the difference in market value of the land immediately before and immediately after the taking.City of Pearland v. Alexander, 483 S.W.2d 244, 247(Tex.1972).Future condemnation cases should be submitted broadly in terms of the difference in value, rather than asking separate questions on pre- and post-taking values.Had this case been so submitted, doubtless we would have had no appeal to review.

The judgment of the court of appeals is reversed and that of the trial court is affirmed.

PHILLIPS, C.J., and SPEARS, J., file a dissenting opinion in which RAY and CULVER, JJ., join.

PHILLIPS, Chief Justice, dissenting.

I respectfully dissent.Based on the authorities cited in the fifth and sixth paragraphs of Justice Spears' dissent, I would affirm the judgment of the court of appeals.

I cannot, however, join in the remainder of Justice Spears' opinion.The majority's opinion has overruled a number of prior decisions by applying the "no evidence" test in a new manner in condemnation cases.That action, in my opinion, in no way compromises the constitutionally guaranteed right of trial by jury.To my knowledge, no member of this court has previously ever suggested that the right of trial by jury limits the authority of an appellate court to reverse a judgment when the jury's verdict is not supported by any evidence.

Finally, I strongly concur in the majority's suggestion that condemnation cases should, in the future, be submitted broadly under TEX.R.CIV.P. 277.The broad submission of this case would have both avoided the present controversy and allowed the jury to reach the correct result.

SPEARS, Justice, dissenting.

I respectfully dissent.In...