City of Dallas v. McKasson

• Decision Date: 08 January 1987
• Docket Number: No. 05-85-00966-CV,05-85-00966-CV
• Citation: 726 S.W.2d 173
• Parties: CITY OF DALLAS, Safeway Stores, Inc. and Eighth Safewall Associates, Appellants, v. Sandalyn Meredith McKASSON and Dustin Meredith, as Individuals, and Emmett P. Ball and Mark Martin, as Independent Executors of the Estates of Lee R. Kraft and Burdah Mae Kraft, Appellees.
• Court: Texas Court of Appeals

Page 173

726 S.W.2d 173

CITY OF DALLAS, Safeway Stores, Inc. and Eighth Safewall

Associates, Appellants, v. Sandalyn Meredith McKASSON and Dustin Meredith, as

Individuals, and Emmett P. Ball and Mark Martin,

as Independent Executors of the Estates

of Lee R. Kraft and Burdah Mae

Kraft, Appellees.

No. 05-85-00966-CV.

Court of Appeals of Texas,

Dallas.

Jan. 8, 1987.

Rehearing Denied Feb. 26, 1987.

Analeslie Muncy, Carroll R. Graham, Donna M. Atwood, Pam Fandal Eudaric, Mike M. Tabor, Dallas, for appellants.

James P. Peden, III, Dallas, for appellees.

Before GUITTARD, C.J., and HOWELL and HOLLINGSWORTH ¹, JJ.

ON MOTION FOR REHEARING

HOWELL, Justice.

On rehearing, we substitute the following revised opinion.

This is an appeal from a judgment non obstante veredicto setting aside an exchange of land between appellants, the City of Dallas and Eighth Safewall Associates and voiding an ordinance authorizing the exchange on the ground that the exchange violated the public sale requirement of Article 5421c-12. Finding no error causing the rendition of an improper judgment, we affirm the judgment of the trial court.

The dispute concerns the cross-hatched parcel of land shown on the annexed diagram and identified in the key as "surplus." Abrams Road was formerly a north-south street in the City of Dallas. The City decided to place a curve in Abrams and to cause it to run approximately over the right-of-way of Prospect Avenue. Safewall owns the property at the northeast corner of Abrams and Prospect, and leases it to Safeway Stores, Inc. In order to shape a curve, it was necessary for the City to acquire from Safewall the shaded area marked on the key as "acquisition." The City also acquired by condemnation the entire triangular block bounded by Abrams, Prospect and Gaston Avenue and known as the "Skillern tract." The condemnation judgment recited that the Skillern tract was being acquired "for the purpose of widening, improving and extending Abrams Road and for the acquisition of necessary greenspace ..." (emphasis added).

Plaintiffs own the property at the northwest corner of Gaston and Prospect. All tracts involved are commercial property. It is a desirable feature of commercial property to be located directly upon a street corner.

The surplus tract is approximately twenty feet wide at its broadest point, approximately 145 feet long, and contains 2,131 square feet. It was formerly a part of the Skillern tract and constitutes a strip left between the old Prospect right-of-way and the new Abrams right-of-way. Upon completion of the new Abrams Road, the City planned to close Prospect Ave. In all probability, the City will soon dispose of the old Prospect right-of-way. If the plaintiffs' property is to maintain its favorable corner location, the plaintiffs must acquire both the old Prospect right-of-way and the surplus tract. Plaintiffs' desires came into conflict with those of Safewall, which wished to maintain the same square footage in its parking area as it had before the City laid claim to the acquisition tract. Otherwise, Safewall's operations would become a non-conforming use under the applicable zoning ordinances, a classification that could cause future operational problems.

Plaintiffs approached the City to purchase the surplus tract. However, the City decided to enter into an exchange agreement with Safewall whereby it would obtain the acquisition tract and Safewall would obtain the surplus tract. Plaintiffs sought cancellation of the deed conveying the surplus tract from the City to Safewall in this suit, alleging that the City and Safewall had violated the statute forbidding a political subdivision from selling or exchanging land without public notice and public sale. TEX.REV.CIV.STAT.ANN. art. 5421c-12, § 1 (Vernon Supp.1986).

The City conceded in the trial court that this procedure was not followed, but sought to justify the transaction under a statutory provision allowing right-of-way land to be exchanged for other right-of-way land without resort to the usual requirement of notice and bidding. ² The jury responded in the negative to issues inquiring (1) if the surplus strip was acquired for purposes other than streets, rights-of-way or easements; (2) if the surplus strip was exchanged for less than fair market value; and (3) if the City had failed to obtain an appraisal. ³ Defendants argue that they were entitled to prevail with these responses to the special issues. The trial court, however, rendered judgment notwithstanding the verdict, cancelled the deed of exchange, and invalidated the ordinance authorizing the exchange. The trial court's opinion accompanying its judgment stated that "the ... property exchanged by the City was not acquired solely for the purpose of streets, rights-of-way and easements." The court was apparently of the opinion that the acquisition was, as a matter of law, a dual-purpose acquisition. We agree.

Defendants first contend that the trial court erred in granting the judgment n.o.v. because more than a scintilla of evidence supported the jury's finding that the tract was not acquired for purposes other than right-of-way. To sustain the action of a trial court in granting a motion for judgment n.o.v., we must determine that no evidence supported the jury's findings. In making this decision, we must "review the record in the light most favorable to the jury findings considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to the findings." Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Genzer v. City of Mission, 666 S.W.2d 116, 119 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.).

We hold it to be undisputed that the Skillern tract was acquired for a dual purpose. The condemnation judgment indicated that the strip was acquired not only for the Abrams Road project but also for "necessary greenspace." The City's property management director confirmed that the acquisition was for right-of-way and greenspace. Defendants point to the testimony of one of the plaintiffs as some evidence that the surplus tract was, in fact, acquired solely for right-of-way. Suffice it to say that all that he could have known was what had been told to him during his negotiations with the City. Such testimony could not supplant the unequivocal and unretracted testimony of the responsible City official.

The issue, therefore, is not so much an evidentiary one as one involving statutory construction. The City contends that because right-of-way was one of the purposes for which the strip was acquired, the whole transaction falls within the exception of section 2(4). Plaintiffs argue that the statutory exception does not extend to dual-purpose acquisitions.

Defendants have emphasized throughout that the City's right-of-way drawings, as they existed on the date of the condemnation judgment, placed the surplus tract in the right-of-way of the new Abrams Road by-pass. From this proposition, defendants urge that there was some evidence to support the jury's negative answer to the inquiry if the surplus strip was acquired for purposes other than streets, rights-of-way or easements. However, our decision is not based upon fact finding; we base our decision upon the requirements of the law.

We must construe the law so as to protect the strong considerations of public policy behind the statutory requirement that public property be sold at public sale. When the City approached the condemnation court to acquire the entire Skillern tract, it was incumbent upon the City to notify the condemnation court of the purpose of the acquisition. The City had no right to exercise the right of eminent domain except pursuant to a valid public purpose. The City made no effort to notify the condemnation court which part of the tract being condemned was needed for greenspace and which part was needed for right-of-way. Instead, the City chose to proceed behind a generalization, advising the court without elaboration that the entirety was being taken for right-of-way. Pursuant to the City's pleadings and evidence, the condemnation court awarded the entire tract "for the purpose of the widening, improving and...