Loumparoff v. Housing Authority of City of Dallas, 14639

• Decision Date: 02 October 1953
• Docket Number: No. 14639,14639
• Parties: LOUMPAROFF et ux. v. HOUSING AUTHORITY OF CITY OF DALLAS. . July, 24, 1953. Rehearing Denied
• Court: Texas Court of Appeals

Page 224

261 S.W.2d 224

LOUMPAROFF et ux. v. HOUSING AUTHORITY OF CITY OF DALLAS.

No. 14639.

Court of Civil Appeals of Texas, Dallas.

July, 24, 1953.

Rehearing Denied Oct. 2, 1953.

Nathan Rachael, Dallas, for appellants.

Scurry, Scurry & Pace and Ethan B. Stroud, all of Dallas, for appellee.

YOUNG, Justice.

The condemnation proceedings initiated by appellee under authority of Art. 3264 et seq., V.A.C.S., were vigorously contested from their inception, appellants urging many objections and affirmative defenses. On jury trial and answers to special issues, judgment was rendered fixing compensation to the owners for their 17.2 acres of land in sum of $40,000 with 6 percent interest from March 19, 1952-date of the order of possession. Timely appeal has been taken from this award.

Appellee Authority is a body corporate, existing by virtue of Art. 1269k, Housing Authority Law, V.A.C.S. The instant action was allegedly conformable to this law and corporate resolution declaring 'it necessary in the accomplishment of its purposes under Article 1269k in the development of the West Dallas housing Project Tex-9-11 for this authority to acquire the fee simple title to the real estate in Project Tex-9-11 for such purposes.' The project acreage was bounded by Singleton Boulevard on the south, on the north by Canada Drive, also the old channel Trinity River; on the east by Hampton Road and on west by Westmoreland Street; defendants' property lying within said area.

By issue No. 1 the jury found that the parties had been unable to agree on compensation to be paid to the defendants for the taking of their property prior to Feb. 2, 1952; issue 2, with jury answer of $40,000, reading: 'What do you find from a preponderance of the evidence was the reasonable market value, as that term is herein defined, on March 19th, 1952, of the condemned property in this case, together with all improvements thereon? Answer in dollars, if any, and cents, if any.'

Appellants advance 32 grounds for reversal of cause; the nature of many being such as to require only categorical answer. They consist generally of two groups, classified as jurisdictional or 'fundamental' on the one hand, and on the other as errors made by the court in course of the trial.

Errors assigned as jurisdictional or 'fundamental': (1) Appellants' 17 acres of land was described by metes and bounds, both in petition and judgment; and the fact that it was first alleged as lying in the city, and elsewhere (inclusive of judgment) as in the county, is not material; it being public known that the whole area has long since been the subject of formal municipal annexation; and the descriptive part thereof reading, 'and all adjoining and contiguous property owned or claimed by said defendants,' may well be ignored and treated as surplusage. Defendants did not except to the plaintiff's petition (denominated a 'statement in writing' by the statute, sec. 1, Art. 3264) for insufficiencies of description or as to object and purpose of proposed condemnation, etc.; and though we observe no material defects in this regard, any such omission 'shall be deemed to have been waived by the party seeking reversal on such account'. Rule 90, Texas Rules of Civil Procedure. (2) The Housing Authority took over the subject property on March 19, 1952 as shown by the order of possession, after having deposited into the court registry the Commissioners' award of $40,000, 'subject to the order of the defendants.' Market value of the property is to be determined as of that time (date of appropriation) when the amount of the award was duly tendered into court; 16 T.J. 1023; City of Houston v. Susholtz, Tex.Civ.App., 22 S.W.2d 537, affirmed, Tex.Com.App., 37 S.W.2d 728. Plaintiff is a body corporate and politic; Housing Authority of City of Dallas v. Higginbotham, Tex.Civ.App., 143 S.W.2d 95; and contrary to the contention of defendants, comes within provisions of Art. 3268, V.A.C.S., relieving such public corporation, upon taking the property, from filing of bond or making deposit of a further sum equal to the amount of the award.

Second, and concerning errors allegedly made by the trial court in rulings during course of the trial: (1) Exhibit 17, plaintiff's original petition, was placed in evidence over objection of defendants for purpose of showing date the suit for condemnation was filed; being done, obviously, in compliance with Art. 3264, sec. 1, relative to preliminary offers and negotiations. Appellants make no showing of possible harm or prejudice as the result of such exhibit. Nor was error shown in matter of the following exhibits placed in evidence by plaintiff: 'Exhibit 12-order for possession-to which no objection was made. Exhibit, 1, a map of defendants' land, sectionalized, and drawn by witness Knapp, an expert on realty valuations; testifying that same accurately represented the subject property in size, shape, and location; also repeatedly referring to the drawing in arriving at his conclusions of market values; exactly the same situation being applicable to Exhibit 13, a map made by plaintiff's witness Bale. (2) Exhibit 14 was a letter from R. C. Griffith, chief negotiator for the Housing Authority, to appellants, offered to show negotiations and efforts made to agree on property value. Same was competent evidence; Vey v. City of Fort Worth, Tex.Civ.App., 81 S.W.2d 228; and in substantial compliance with sec. 1, Art. 3264, that 'plaintiff and the owner have been unable to agree upon the value of the land or the damages.'

(3) Point 14 as presented by bill of exceptions is wholly without merit. The bill states that upon retirement of the jury for deliberations 'a request was made in open court that all exhibits be sent to the jury room; that the plaintiff's attorney objected and stated that the exhibits should go to the jury room only in the event the the jury requested...