Dall. Cnty. v. Crestview Corners Car Wash
| Decision Date | 24 July 2012 |
| Docket Number | No. 05–09–00623–CV.,05–09–00623–CV. |
| Parties | DALLAS COUNTY, Texas, Appellant, v. CRESTVIEW CORNERS CAR WASH (a Texas Joint Venture); Trinity Mills Car Wash, Manager of Venture; THS Management, Inc., a Texas Corporation; and Warren Limited Liability Co., a Texas Corporation, Appellees. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Sherri Turner, Dallas, TX, for Appellant.
Joe H. Staley, Jr., Law Office of Joe H. Staley, Jr., Dallas, TX, for Appellee.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Dallas County condemned a portion of appellees' 1 property for the purpose of widening Trinity Mills Road in Carrollton. Following a jury trial, the trial court rendered judgment and awarded the County a permanent easement and street right-of-way over a portion of Crestview's real property. It also awarded Crestview the stipulated value of the portion taken, plus damages to the remainder of the property, damages caused by a temporary but total denial of access to the property, prejudgment interest, and costs. The County appeals the judgment, arguing the trial court erred by excluding and admitting certain evidence, by overruling its objections to closing argument, charging the jury, and in calculating prejudgment interest and costs.
Based on the record, we conclude as a matter of law that Crestview's access rights will not be materially and substantially impaired by the taking. Accordingly, we reverse that portion of the trial court's judgment awarding: (1) damages for impaired access and (2) prejudgment interest, and remand that portion of the case to the trial court for further proceedings consistent with this opinion. However, in all other respects we affirm the trial court's judgment.
Crestview operates a full-service car wash at the corner of Trinity Mills and Midway. The County sought to acquire a portion of this property to widen Trinity Mills. When it was unable to reach agreement on the amount of damages, the County filed a petition to condemn part of the property. SeeTex. Prop.Code Ann. § 21.012(a)2 (West Supp. 2011). Special commissioners awarded Crestview $600,000 as damages for the property. See id. § 21.014. The County filed an objection to the commissioners' award, converting the administrative proceeding into a civil case to be tried “in the same manner as other civil causes.” See id. § 21.018(b).
Before trial, both parties filed objections to the other party's expert appraisers. Crestview argued the County's appraiser did not use the willing buyer/willing seller standard to calculate damages to the remainder of the property after the taking. The County argued Crestview's appraiser used unpled and improper elements of damage in his calculation of damages to the remainder of the property. After pretrial hearings, the trial court denied the County's objections and granted Crestview's objections. The parties stipulated to the fair market value of the strip of property taken by the County and the case went to trial on the issue of the amount to damages to the remainder of Crestview's property caused by the taking.
Before the taking, the property was used as a full-service car wash, including state inspection and detailing services. There was evidence that as a result of the taking, the property could no longer be used for state inspections or detailing services because the land taken included part of the lane used for brake testing and the remaining area was insufficient for the detailing services.
There was also evidence Crestview removed underground gasoline storage tanks located on the remainder because their proximity to the new road construction created a safety hazard.3 Crestview characterized the cost of removing and replacing the storage tanks as damages for the cost to cure an unsafe condition caused by the taking and included these damages in its evidence regarding the lost fair market value of the remainder.
In addition, Crestview sought damages for a temporary but total denial of access to the property during the period of road construction. These damages were based on the estimate that the interruption of utilities during construction and dust caused by construction work would render the property unusable as a car wash for one year.
The jury found that the damages to the remainder of Crestview's property were $765,320.50 measured by the difference between the fair market value of the remainder immediately before and immediately after the taking, including the cost to cure. The jury charge defined “cost to cure” as damages reflecting any necessary modifications to the remainder to cure any unsafe conditions created by the condemnation. In a separate question, the jury was asked to find the damages to Crestview's property “that will be proximately caused by any temporary but total restriction of access to the Landowner's property resulting from the subject condemnation.” The jury found those damages were $108,307.00. The trial court rendered judgment for the total of the jury's verdict, plus the stipulated value of the property taken and prejudgment interest on the amount in excess of the commissioners' award, gave a credit for the commissioners' award, and awarded costs of court to Crestview.
The County's issues on appeal assert the trial court abused its discretion by: (1) excluding the County's expert appraisal witness; (2) admitting Crestview's expert appraisal witness; (3) admitting the property owner's testimony; (4) admitting testimony regarding the underground storage tank system; and (5) admitting testimony regarding the temporary but total restriction of access. In addition, the County asserts the trial court erred by overruling its objections to Crestview's closing argument and by defining “cost to cure” in the jury charge, and that the trial court abused its discretion by awarding prejudgment interest and costs.
The Texas Constitution requires that adequate compensation shall be made if a person's property is “taken, damaged or destroyed for or applied to public use.” Tex. Const. art. I, § 17. When a portion of a tract of real property is condemned, the damage to the property owner is determined by “estimating the extent of the injury and benefit to the property owner, including the effect of the condemnation on the value of the property owner's remaining property.” Tex. Prop.Code Ann. § 21.042(c); see also Interstate Northborough P'ship v. State, 66 S.W.3d 213, 218 (Tex.2001). In making that estimate, the commissioners shall consider an injury or benefit “that is peculiar to the property owner and that relates to the property owner's ownership, use, or enjoyment of the particular parcel of real property, but they may not consider an injury or benefit that the property owner experiences in common with the general community.” Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, sec. 21.042(d), 1983 Tex. Gen. Laws 3475, 3504 (amended 2011) (current version at Tex. Prop.Code Ann. § 21.042(d) (West Supp. 2011)).
The measure of compensation in a partial-takings case is “the market value of the part taken plus damage to the remainder caused by the condemnation.” State v. Petropoulos, 346 S.W.3d 525, 530 (Tex.2011) (quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 456 (Tex.1992)). There are two acceptable methods for calculating damages in a partial takings case. The first method measures damages by the fair market value of the part taken plus damages to the remainder caused by the condemnation. Id. The second method measures damages by the difference between the market value of the entire tract before the taking and the market value of the remainder after the taking. Id. The second method is preferable when the part taken does not constitute a separate economic unit, such as when the tract taken is small or irregularly shaped. Id. In this case, it appears the trial court used the first method because the value of the part taken was stipulated and the jury was asked to find the damages to the remainder by considering the difference between the fair market value of the remainder immediately before and immediately after the taking.
Several of the County's issues allege error in admitting or excluding evidence. We review the trial court's decision to admit or exclude evidence for an abuse of discretion. See Interstate Northborough, 66 S.W.3d at 220;City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). For the admission or exclusion of evidence to constitute reversible error, the complaining party must show that (1) the trial court committed error and (2) the error probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex.2009); Interstate Northborough, 66 S.W.3d at 220. We review the entire record to determine if the error probably resulted in the rendition of an improper judgment. Cent. Expressway, 302 S.W.3d at 870;Interstate Northborough, 66 S.W.3d at 220. Typically, a successful challenge to a trial court's evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted. Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000); Alvarado, 897 S.W.2d at 753–54.
The County's issues also raise questions of the admissibility of expert witness testimony. To be admissible, the expert must be qualified and his or her opinion must be relevant and reliable. See Cent. Expressway, 302 S.W.3d at 870;Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex.2002). To be relevant, the expert's opinion must be based on the facts; to be reliable, the opinion must be based on sound reasoning and methodology. Cent. Expressway, 302 S.W.3d at 870;Zwahr, 88 S.W.3d at 629. We review a trial court's determination that a...
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