Leiber v. Texas Municipal Power Agency

• Court: Texas Court of Appeals
• Writing for the Court: SEARS
• Citation: Leiber v. Texas Municipal Power Agency, 667 S.W.2d 206 (Tex. App. 1983)
• Decision Date: 15 December 1983
• Docket Number: No. C14-82-381CV,C14-82-381CV
• Parties: Evelyn P. LEIBER, et al., Appellants, v. TEXAS MUNICIPAL POWER AGENCY, Appellee. (14th Dist.)

Page 206

667 S.W.2d 206

Evelyn P. LEIBER, et al., Appellants, v. TEXAS MUNICIPAL POWER AGENCY, Appellee.

No. C14-82-381CV.

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

Dec. 15, 1983.

Rehearing Denied Jan. 19, 1984.

William Drew Perkins, Fenley & Perkins, Lufkin, for appellants.

Roy Barrett, Beverly Willis, Naman, Howell, Smith & Lee, Waco, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

SEARS, Justice.

Landowners appeal from judgment in suit by appellee, Texas Municipal Power Agency, to condemn in fee 30.737 acres and a flood easement on three different areas comprising a total of 24.161 acres out of a 106.43 acre tract. We reverse and remand.

Issues were submitted to the jury concerning the value of the easement area, before and after the taking; and the value of the remainder, before and after the taking. Two expert witnesses testified to the values the jury was requested to find. Vernon W. Thomas was a witness for the landowner. James C. Smith was a witness for Texas Municipal Power Agency. The findings of the jury and the opinions of the expert witnesses as to these values are depicted by the following table:

              Easement    Easement    Remainder   Remainder      Total
                               Before      After       Before       After       Damages
                             ----------  ----------  -----------  ----------  -----------
                Landowner's  $48,322.00  $10,322.00  $102,290.00  $37,290.00  $103,000.00
                Expert
                (Thomas)
                TMPA         $24,161.00  $ 9,262.00  $ 51,145.00  $28,711.00  $ 37,333.00
                Expert
                (Smith)
                Jury         $36,241.50  $18,120.75  $ 76,717.50  $51,145.00  $ 43,693.25
                

Appellants allege in their points of error number one and three that the jury findings of the after taking value of the easement and remainder areas are not supported by any of the evidence, and therefore, the trial court erred in overruling appellants' motion to disregard these jury findings and their motion for judgment n.o.v. The law applicable to these points of error is well stated in Roberts v. State, 350 S.W.2d 388, 391 (Tex.Civ.App.--Dallas 1961, no writ):

"It has been held in Maddox v. Gulf, Colorado & Santa Fe Ry. Co., Tex.Civ.App., 293 S.W.2d 499, (err. ref. n.r.e.) that in a condemnation case of this kind the jury when considering the value of condemnee's remaining property immediately after condemnation, are restricted only by the lowest figure testified to. See Houston Belt & Term. Ry. Co. v. Lynch, Tex.Civ.App. 185 S.W. 362, affirmed Tex.Com.App., 221 S.W. 959. Also, in McConnico v. Texas Power & Light Co., Tex.Civ.App. 335 S.W.2d 397 (err. ref. n.r.e.) the court held that a jury is at liberty to reach its conclusion by blending all of the evidence admitted before them, aided by their own experience and knowledge of the subject of inquiry; that they are not compelled to credit all the testimony of any witness or to reject it all. Moreover, our courts have held that opinion evidence is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from evidence and by utilizing its own experience in matters of common knowledge. McCarthy v. City of Amarillo, Tex.Civ.App., 307 S.W.2d 595, (err. ref. n.r.e.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 and Nelson v. State, Tex.Civ.App., 342 S.W.2d 644."

The jury findings of after-taking value are above the lowest figure testified to by the experts. Also, the amount of total damages found by the jury is within range of the expert testimony produced at trial. Viewing the evidence in the light most favorable to these findings we cannot conclude that there is no evidence to support them; therefore, appellants' points of error one and three are overruled.

Appellants' allege in their points of error two and four that the jury findings as to the after taking value of the easement and remainder areas are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We are required to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains some evidence of probative force in support of the verdict. Roberts v. State, 350 S.W.2d 388, 391 (Tex.Civ.App.--Dallas 1961, no writ); In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The evidence shows that the taking in fee of 30.737 acres and the taking of the flood easement over 24.161 acres caused a substantial devaluation of the easement and remainder acreage. The expert witness for Texas Municipal Power Agency testified that the devaluation could be attributed to three sources: (1) devaluation resulting from the taking of the flood easement; (2) devaluation resulting from severance and irregular shape of the areas not taken in fee; and (3) devaluation resulting from impaired access. The T.M.P.A. expert placed a certain dollar amount of damage per acre resulting from each of these sources.

In...