City of San Antonio v. Guidry

Decision Date31 October 1990
Docket NumberNo. 04-88-00478-CV,04-88-00478-CV
Citation801 S.W.2d 142
PartiesThe CITY OF SAN ANTONIO, Appellant, v. Norris P. "Frenchie" GUIDRY, Appellee.
CourtTexas Court of Appeals

Jackson C. Hubbard, Judith A. Yacono, City Attorney's Office, Nissa A. Mykleby, Karen Angelini, Brock & Mathis, San Antonio, for appellant.

Gilbert Lang Matthews, William V. Rainey, Law Office of Gilbert Lang Matthews, Fred Shannon, Charles Estee, Shannon & Weidenbach, Inc., San Antonio, for appellee.



PEEPLES, Justice.

The City of San Antonio appeals an adverse judgment for damages based on a jury finding of inverse condemnation. The jury found that a city drainage and street project in front of plaintiff Guidry's barbecue restaurant was unduly delayed and caused a temporary limited restriction of access to the premises. The jury assessed Guidry's damages at $220,000. The City contends that (1) the issue of inverse condemnation was a question of law that should not have been submitted to the jury, (2) in any event the court erred in refusing to give certain jury instructions concerning inverse condemnation, (3) there is insufficient evidence of inverse condemnation, (4) two jury answers are in irreconcilable conflict, and (5) the damages question was improperly submitted. We affirm the judgment.

In June 1985 the city commenced construction of drainage and street improvements on Jackson-Keller Road. Guidry's restaurant was situated in the middle of the block, and while the construction took place, access to his restaurant was obstructed in varying degrees by barricades on Jackson-Keller Road, by trenches, stacks of pipe, piles of dirt and asphalt near his restaurant, and by heavy equipment on his parking lot. There was conflicting evidence as to whether on one or two occasions the blockage was total, but at all other times one could reach the premises by vehicle. Guidry presented evidence that completion of the project was unduly delayed, and that as a result he lost profits and eventually went out of business.

Guidry brought suit against the City and its contractor, South Texas Construction Company. The court submitted five theories of liability against South Texas and three against the City. 1 The jury answered several liability questions adversely to South Texas, which settled with Guidry after verdict and is no longer involved in this suit. The jury found in the City's favor on all liability issues except inverse condemnation. The court rendered judgment for Guidry on the verdict.


Inverse condemnation occurs when property has been taken or damaged for a public purpose without formal condemnation proceedings, and the landowner initiates a suit for compensation. See City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.1971); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 104 (1961); Allen v. City of Texas City, 775 S.W.2d 863, 864-65 (Tex.App.--Houston [1st Dist.] 1989, writ denied). 2 Ordinarily a governmental unit is not liable for damages resulting from temporary obstructions caused by a public works project unless there is proof of negligence or undue delay. See Annotation, Damages Resulting From Temporary Conditions Incident to Public Improvements or Repairs as Compensable Taking, 23 A.L.R.4th 674, 678-98 (1983); 2A NICHOLS ON EMINENT DOMAIN § 6.36 (3d ed. 1990); 5 Id. § 16.1011. 3

In City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex.1986), the court categorized inverse condemnation cases involving restriction of access as follows:

(1) those in which there was a total restriction of access for either a temporary or a permanent period of time; (2) those in which there was a partial restriction of access for a temporary period of time; and (3) those in which the activity causing the restriction of access was illegal, unreasonable or unnecessary.

Id. at 12 (emphasis added). 4 Later in the opinion the court summarized the inverse condemnation cause of action somewhat differently:

[In] order to show a material and substantial interference with access to one's property, it is necessary to show that there has been a total but temporary restriction of access; or a partial but permanent restriction of access; or a temporary limited restriction of access brought about by an illegal activity or one that is negligently performed or unduly delayed.

Id. at 13 (emphasis added). Guidry alleged a cause of action under category three, and the jury found a "temporary limited restriction of access" brought about by a construction project that was "unduly delayed."

The City first contends that whether there has been an inverse condemnation is a question of law for the court. A long line of cases has so held, at least in lawsuits challenging a governmental body's decision about land use. When governmental land use decisions have caused a partial but permanent alteration of traffic patterns, the supreme court has consistently held that whether there has been a material and substantial impairment of access (which is compensable) or merely a diversion to a more circuitous route of access (which is not compensable) is a question of law, not a question of fact. State v. Wood Oil Distr., Inc., 751 S.W.2d 863, 865 (Tex.1988); DuPuy v. City of Waco, 396 S.W.2d 103, 110 (Tex.1965). Similarly, courts decide as a question of law the compensability of so-called "police power" ordinances that impose burdens on land use unrelated to access. "The question of whether a police power regulation is proper or whether it constitutes a compensable taking is a question of law and not of fact." City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.1984) (upholding as a proper exercise of police power a city ordinance requiring dedication of park land, or payment of money in lieu thereof, as a condition to approval of subdivision plat). If the law were otherwise, juries could secondguess and compensate every land use decision made by the community's lawfully elected representatives.

In contrast, when the lawsuit challenges not the policy decision of a legislative body but, as in this case, the care and diligence with which that decision has been carried out on the job site, we think that a different rule applies. In such cases the issues are appropriate for a jury and should not be resolved as questions of law by the court.

In City of Austin v. Avenue Corp., the supreme court reviewed an award of damages in a temporary obstruction case similar to our own without discussing whether the liability question should be decided by the court or by the jury. There a public works project had impaired access to a restaurant for nine months. The trial court found a material and substantial interference with the property owner's premises as a matter of law and submitted only the damages aspect of the case to the jury. 704 S.W.2d at 11-12. The supreme court did not say whether inverse condemnation is always a question of law in a temporary restriction case, or whether the trial court ruled that evidence conclusively established it in that particular case.

In L-M-S Inc. v. Blackwell, 149 Tex. 348, 233 S.W.2d 286 (1950), the court reviewed an award of damages against two contractors for lost profits caused by a construction project that had temporarily obstructed a sidewalk and part of a street where the plaintiff carried on its business. The construction was not a public works project, but it was conducted pursuant to a city permit, which expressly allowed the contractors to erect the fences and barricades that obstructed access to the plaintiff's premises. Citing many authorities, the supreme court held:

Petitioners [the defendant contractors], acting under the permit given by the City of Dallas, had the right to reasonably obstruct the street in constructing the 15-story building. Whether the placing of the obstructions in the street in this instance was reasonable or unreasonable was a question for the jury to determine under all the facts and circumstances of the case.

233 S.W.2d at 288. But the court went on to hold that the contractors were not liable because the jury found that the obstructions were not unreasonable. Id. at 291.

Ordinarily questions such as whether work was performed with diligence and with due care are triable to a jury, while the review of a legislative body's decision to undertake the particular project is a question of law for the court. Guidry's count for inverse condemnation alleged temporary impairments caused by construction activity that was "negligently performed or unduly delayed." 5 See City of Austin v. Avenue Corp., 704 S.W.2d at 13. We have found no cases in which the courts have said that whether temporary obstructions of access were unduly prolonged is a question of law for the court and not an issue for the jury.

In suits such as this, the landowner is seeking to hold the City liable for negligence or undue delay caused by the City's contractor. The City apparently contemplates a trial in which its liability for its contractor's negligence and delay would be litigated nonjury as a question of law, but it does not explain whether the contractor's liability for the same conduct would be tried to a jury or to the court. It is certainly possible to try some issues in a case to the court and others to a jury. See, e.g., 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE §§ 2336-2337 (1971). But that would be difficult when the conduct for which the City is potentially liable is the conduct of a contractor concerning whose liability both the plaintiff and the contractor have a right to jury trial. If the jury found the contractor liable for undue delay, under the City's view apparently the court could nevertheless decide that the city was not liable for undue delay.

It is true that many cases have said that the court and not the jury decides whether ...

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