City of Dallas v. Priolo

Decision Date20 June 1951
Docket NumberNo. A-2950,A-2950
Citation242 S.W.2d 176,150 Tex. 423
PartiesCITY OF DALLAS v. PRIOLO et ux.
CourtTexas Supreme Court

H. P. Kucera, City Atty., and H. Louis Nichols and Jon. H. Shurette, Asst. City Attys., Dallas, for petitioner.

William Andress, Jr., Dallas, for respondents.

HICKMAN, Chief Justice.

The City of Dallas condemned a strip of land approximately 30 60 feet to extend and widen Dolphin Road at Haskell Avenue. The strip condemned was the open space between the old street line and the front entrance of a building owned by respondent Priolo and occupied and used by him as a grocery store and liquor store. The condemned portion provided seven head-in parking places in front of his liquor and grocery stores. In answer to special issues the jury found that the market value of the part taken was $1,200; that the market value of the part not taken was $30,000 before the taking, and $28,200 after the taking; that Priolo suffered temporary damages from loss of profits during the widening of the road in the sum of $326; and that he would suffer no permanent loss of profits as a result of the taking. Upon the verdict, judgment was rendered for the total sum of $3,326. Priolo appealed, and the City filed cross assignments, complaining of the item of $326 as temporary damages. The cross assignments were sustained and Priolo does not assign any error here to that ruling. We, therefore, do not have it before us for decision. The case was reversed by the Court of Civil Appeals and remanded to the trial court on its ruling that the trial court erred in excluding the testimony of a 'business opportunity expert,' who would have testified to the fair market value of the businesses on the premises before and after the taking, the Chief Justice dissenting. 234 S.W.2d 1014.

In order to test the correctness of that ruling of the Court of Civil Appeals a rather detailed statement of the proceedings in the trial court is required. To establish the amount of his damages Priolo placed upon the witness stand Arthur Wolf, a real estate dealer with much experience in appraising Dallas property. The witness testified that he was familiar with Priolo's property, with the neighborhood in which it is located, and with the volume of business done by Priolo. He was then permitted to state his opinion as to the value of the strip taken and the lessened value of the land and the building not taken. Questioned by Priolo's attorney as to the factors which went into the values testified to by him, he stated that there were several factors, among them being the number of people living within the vicinity of the business, the parking facilities, the uses to which the property can be put, and the income therefrom. He testified that the highest and best use for Priolo's property was that for which it was presently being used. At considerable length he testified as to the value of parking space; that his estimate of value was based, in part, on figures given him by Priolo that 50 per cent. of the customers came in cars, and that there would be a 50 per cent. or greater loss of these customers; that future loss of business as a result of the loss of parking space was one element in his valuation; that the amount of business has considerable bearing on the rent that a tenant would pay, and that rental value is an element in fixing market values; that the income was a basis for valuation; and that the theory of replacement value and depreciation would result in the same figures, since it would result necessary to depreciate the value of the remaining land and building a great deal more because the land and building would sell for less with no parking space in front. In effect, this witness, who was called by Priolo, testified that the lessened market value of the portion of the lot not taken was due to a falling off of Priolo's business. There is no testimony whatever that the building and the portion of the lot not taken were damaged in any other way than in their use. Damage to Priolo's business because of the taking of the parking space in front of his stores was made the principal basis of the opinion of the witness. That evidence was before the jury, and we must conclude that it was considered by the jury in answering issues 2 and 3 submitting the questions of the value of the land remaining before and after the taking. In fact, no other basis than that for determining the values of the land remaining was suggested by that witness or any other witness for Priolo.

Priolo then placed upon the witness stand Joe Cole, who testified that his business was to sell business opportunities. This question was propounded to the witness: 'Now, it is in evidence in this case that the grocery store and liquor store owned by Mr. Priolo would show a gross volume of sales in 1949 of $80,390.34, with a net operating profit of $17,147.42. That more than one-half of his customers came in cars and that the location was on Dolphin Road at South Haskell, and, after-there was space available for off-street head-in parking for seven (7) cars-do you know what the fair market value-fair cash market value of those businesses be in Dallas County, Texas, on October 10th, 1949?' The court sustained the City's objection to the question, and the witness was not permitted to answer it. The Court of Civil Appeals held that the trial court erred in that ruling, and upon that ground alone reversed and remanded the case. In this we think the Court of Civil Appeals erred.

As we understand the opinion of the Court of Civil Appeals the holding was that the evidence should have been admitted upon the issue of whether and to what extent the market value of Priolo's property remaining after the taking had been depreciated. The opinion quotes from the opinion in Milam County v. Akers, Tex.Civ.App., 181 S.W.2d 719. It was held in that case, and we approved the holding by our refusal of an application for writ of error therein, that where the ownership of land, improvements and business conducted thereon are in the same person evidence of resulting...

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  • State v. Schmidt
    • United States
    • Texas Court of Appeals
    • 13 Febrero 1991
    ...cert. denied, 484 U.S. 818, 108 S.Ct. 74, 98 L.Ed.2d 37; State v. Zaruba, 418 S.W.2d 499, 502 (Tex.1967); City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, 179 (1951). Therefore, the City contends, the conversion of the highway to a controlled-access highway--the rerouting of traffic,......
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    ...and improvements. See id. at 871 (citing City of Austin v. The Ave. Corp., 704 S.W.2d 11, 13 (Tex.1986) and City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, 179 (1951)). This case falls into the second category, as only a portion of Crestview's property was taken. Thus, although Cres......
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    ...permissible modes of making an objection to the Court's Charge. To be effective, an objection must be made. City of Dallas v. Priolo (1951), 150 Tex. 423, 242 S.W.2d 176; City of Denton v. Hunt (Tex.Civ.App., 1950), 235 S.W.2d 212, er. ref., n. r. e.; Texas State Highway Department v. Reeve......
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