Harris County v. Felts

• Decision Date: 28 July 1994
• Docket Number: No. C14-93-00108-CV,C14-93-00108-CV
• Citation: 881 S.W.2d 866
• Parties: HARRIS COUNTY, Texas, Appellant, v. Donald Glenn FELTS and Mary Taylor Felts, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 866

881 S.W.2d 866

HARRIS COUNTY, Texas, Appellant, v. Donald Glenn FELTS and Mary Taylor Felts, Appellees.

No. C14-93-00108-CV.

Court of Appeals of Texas Houston (14th Dist.).

July 28, 1994.

Rehearing Denied Aug. 25, 1994.

Jennifer Mouton, Mike Driscoll, Houston, for appellant.

Billy Coe Dyer, Houston, for appellees.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

CANNON, Justice.

This is an appeal of a judgment in an inverse condemnation action brought by appellees, Donald Glenn Felts and Mary Taylor Felts ("Felts"), against appellant, Harris County, Texas ("Harris County"), for damages to their home caused by Harris County's North Eldridge Parkway project. The jury found that appellees' property was damaged under Article I, Section 17 of the Texas Constitution and awarded them $15,645 in damages. The trial court entered judgment on the jury's verdict in favor of appellees and found that appellees' property had been damaged in that amount under Article I, Section 17 of the Texas Constitution. Appellant filed a Motion For Judgment Notwithstanding The Verdict, which the trial court denied. In three points of error, appellant contends that the trial court erred as a matter of law in submitting jury question number 1 and in overruling it's motion for judgment notwithstanding the verdict because: (1) there was no evidence of an inverse condemnation cause of action under Article I, § 17 of the Texas Constitution; and (2) that there was no evidence to support the jury's finding on actual damages. We reverse and render.

In 1978, appellees, Don and Mary Felts, purchased an half acre lot to build their home at 12310 William Dowdell in Cypress, Texas. In 1979, they completed a quality custom-built home, which had a brick exterior, four bedrooms and 2 1/2 baths. They later added a 20' X 40' swimming pool, a patio, decking, and playground equipment to their backyard. The Felts and their three children frequently enjoyed and used their backyard for family recreation and relaxation.

In 1987, appellant, Harris County, decided to construct the North Eldridge Parkway in northwest Harris County. It designed North Eldridge Parkway as a four lane, major thoroughfare to carry heavy volumes of traffic over long distances. It determined that an 100' width of right-of-way was necessary to complete the project. Harris County projected that North Eldridge Parkway would carry 14,338 cars per day when it opened, and would carry 24,100 cars per day by the year 2007.

Harris County's alignment map initially required the acquisition of one square foot of land from the Felts for the North Eldridge Parkway project. In compliance with Harris County's ordinary procedures, Robert Watts, Chief of Harris County Right-of-Way Department, wrote a letter to the Commissioners' Court on March 5, 1987. He requested that it find that a public need existed for the project and for the properties shown in the initial alignment, including the Felts' property. Watts then requested authorization to appraise the properties within the alignment and to make offers to the property owners based on those appraisals. The Commissioners' Court made these authorizations by an order dated March 10, 1987.

Harris County Precinct 3 ("Precinct 3") and the Harris County Right-of-Way Department ("Right-of-Way Department") each drew up a list of three recommended appraisers to appraise the properties needed for North Eldridge Parkway. The only appraiser on both lists was William D. "Bill" Kvinta, a member of the Appraisal Institute, or MAI, who had done work for the department before. Harris County gave Kvinta the assignment of appraising the Felts' property.

Later in 1987, Kvinta initially appraised the Felts' property for appellant and found damages based on the proximity of the four lane, major thoroughfare to their home. He turned his appraisal in to the Right-of-Way Department for review by its staff appraisers, and they approved it. Harris County did not make an offer to the Felts based on the appraisal it had commissioned, reviewed and approved. By letter dated August 13, 1987, Precinct 3 decided to drop the Felts' property because the precinct commissioner did not wish to expend any funds on the Felts' tract.

Harris County told appellees that it was going to realign North Eldridge Parkway, but it did not change the design of the parkway to go around the Felts' one square foot of land. The Right-of-Way Department suggested to the Engineer's Office that a new alignment map was needed, but the county engineer refused to revise the map.

On November 29, 1989, the Felts sent a letter to Watts to protest the Right-of-Way Department's decision concerning their home. The Felts' letter explained that "moving the Parkway over 3"'-6"' so as not to have to acquire a piece of our property does not take the damages away." Watts agreed with the Felts and wrote Precinct 3 on January 17, 1990, urging that it reconsider its August 13, 1987 decision to drop the Felts' tract. The construction of the parkway began in December 1989 and was completed in 1992.

In the meantime, the Felts decided to sell their home because of their concern about the impacts from North Eldridge Parkway. In December 1987, they put their house on the market. They originally listed the property for sale at $165,000, and later dropped the price to $119,500. In September 1990, the Felts' home was sold at $119,500 to John Ewen.

In 1990, Kvinta reappraised the Felts' property for appellant and again found damages to their property caused by the proximity of the North Eldridge Parkway. Appellant refused to make an offer based on the appraisal it had commissioned. The Felts then filed this inverse condemnation action to recover their damages.

On September 4, 1992, the Felts filed their Fourth Amended Original Petition alleging causes of action for inverse condemnation and nuisance against Harris County. On September 14, 1992, the case was called to trial. After a three day trial, the jury found that the Felts' property was damaged and awarded them $15,645.00 in damages. The trial court found that Harris County's North Eldridge Parkway project damaged the Felts' property within the meaning of Article I, Section 17 of the Texas Constitution in the amount of $15,645.00 and entered judgment on the jury's verdict in favor of appellees. On September 30, 1992, Harris County filed its Motion for Judgment Notwithstanding the verdict, which the trial court denied on October 16, 1992.

POINT OF ERROR ONE

THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS SUBMISSION OF JURY QUESTION NUMBER 1 BECAUSE THERE WAS NO EVIDENCE OF AN INVERSE CONDEMNATION CAUSE OF ACTION UNDER ARTICLE I, SECTION 17 OF THE TEXAS CONSTITUTION

POINT OF ERROR TWO

THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING THE COUNTY'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE THERE WAS NO EVIDENCE OF AN INVERSE CONDEMNATION CAUSE OF ACTION UNDER ARTICLE I, SECTION 17 OF THE TEXAS CONSTITUTION.

Article I, Section 17 of the Texas Constitution provides that "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made...." Condemnation is the process by which property of a private owner is taken for public use, without consent, but upon the payment of just compensation. An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner's right to use and enjoy the property, such as by restricting access or denying a permit for development. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992). To recover under the theory of inverse condemnation, the property owner must establish that: 1) the governmental entity intentionally performed certain acts; 2) that resulted in a taking of property; 3) for public use. Waddy v. City of Houston, 834 S.W.2d 97, 102 (Tex.App.--Houston [1st Dist.] 1992, writ denied); City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex.App.--Eastland 1986, writ ref'd n.r.e.).

The second element, whether the actions of the County constituted a taking, is the paramount issue addressed here. Texas courts have considered this element before. In Westgate, 843 S.W.2d at 450, the Supreme Court was asked to consider whether the government appropriated Westgate's property during the period between the announcement of the project and when the government actually acquired the property by (1) failing to warn of the expansion project which would affect its newly constructed shopping center and (2) unreasonably delaying acquisition after the project was announced. The Court held that a landowner could not recover damages for inverse condemnation under Article I, Section 17 of the Texas Constitution where the government had not physically appropriated, denied access to, or otherwise directly restricted the use of the landowner's property. "Direct restriction", as used in that case, referred to an actual physical or legal restriction on the property's use, such as a blocking of access or denial of a permit for development. Id. at 452. Appellees in this case are claiming the government appropriated their property by (1) building the Parkway in close proximity to their property, (2) by increasing the noise at their property due to the construction activities and (3) by increasing the dust on their property also due to the construction activities. Under the reasoning of the Westgate case, appellees cannot recover damages for inverse condemnation under Article I, Section 17 of the Texas Constitution because no land was physically appropriated. Appellees were never denied access to their property, nor was there any direct restriction on the use of their property.

The Supreme Court in Westgate stated that its holding was supported by sound public policy. "Construction of public-works projects would be severely impeded if the government could incur...