Parallax Corp., N.V. v. City of El Paso

• Decision Date: 05 October 1995
• Docket Number: No. 08-93-00468-CV,08-93-00468-CV
• Citation: 910 S.W.2d 86
• Parties: PARALLAX CORPORATION, N.V., Appellant, v. CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

Page 86

910 S.W.2d 86

PARALLAX CORPORATION, N.V., Appellant, v. CITY OF EL PASO, Appellee.

No. 08-93-00468-CV.

Court of Appeals of Texas El Paso.

Oct. 5, 1995.

Rehearing Overruled Dec. 13, 1995.

Francis S. Ainsa, Jr., Robert A. Skipworth, Ainsa, Skipworth, Conde & Martinez, El Paso, for appellant.

David C. Caylor, City Attorney, El Paso, Daniel H. Hernandez, Assistant City Attorney, El Paso, Laura K. Norden, Assistant City Attorney, El Paso, for appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

This is a statutory condemnation case. Appellant Parallax Corporation, N.V. ("Parallax") appeals the judgment of the County Court at Law No. 3 on a jury verdict awarding less than it received from the special commissioners. Parallax brings three points of error, asserting that: (1) no evidence supports the jury's finding of damages; (2) insufficient evidence supports the jury's finding of damages; and (3) the trial court erred by allowing cross-examination by the City on a hypothetical question concerning facts which were not in evidence. We affirm.

SUMMARY OF THE EVIDENCE

Parallax originally purchased the real estate which is the subject of this dispute in 1978. The tract, originally comprised of 159.27 acres, is located near the intersection of Interstate 10 and Avenue of the Americas in east El Paso, but it contains no frontage on either major thoroughfare. Carlos Salas-Porras, managing director of Parallax, discovered in 1987 that the City of El Paso planned a flood control project that would impact the land. The discovery occurred during the pendency of a contract for sale of the land when the City would not change the zoning as required by that contract. The eventual condemnation of the subject real estate divided it into three parcels: (1) 82.25 acres condemned by the City for a ponding basin which became the Americas Basin; (2) 62.26 acres retained by Parallax to which there is no access; and (3) 14.76 acres retained by Parallax which has one access point. The special commissioners awarded Parallax $2,561,000 in damages. Parallax objected to the award and, following trial to a jury, the trial court entered judgment that Parallax was entitled to $895,702.50 for the parcel taken and $606,703.76 for the damages to the remainder parcels, for a total compensation of $1,502,406.20. Parallax attacks only the finding of the jury with regard to the value of the remainder parcels.

Salas-Porras testified that in his opinion, the entirety was worth $11,000,000, based on the contract that fell through because the City would not change the zoning. Eugenio Mesta and Tony Conde testified that the highest and best use of the land would be development for commercial, industrial, and residential use. David Etzold testified as an expert witness for Parallax that the entirety of the remainder had a value before the taking of $1.12 per square foot or a value of $3,757,590. ¹ After the taking, Etzold calculated the damages to the 62.26 acre tract at 100 percent because the tract was completely landlocked. Given a post-taking value of zero, the damages to that tract could be quantified at $3,037,491. Etzold further testified that the 14.76 acre tract had a pre-taking value of $1.12 per square foot and a residual value post-taking of $140,240. Thus, damages to the smaller tract totaled $579,859. Total damages to the remainder predicated on Etzold's testimony equal $3,617,350. Etzold additionally testified concerning the comparable sales he utilized in determining the market value of the subject property. Six comparables were selected for similarity in the areas of proximity of location, size, topography, access, visibility, sales date, and similar intent of usage. The comparables varied in price per square foot between 60cents and $1.25. Charles Osenbaugh, also an expert witness for Parallax, testified that the value of the remainder tracts before the taking based upon 90cents per square foot was $3,019,492. He calculated the post-taking value of the 62.26 acre tract at 10cents per square foot for a value of $271,205 and the post-taking value of the 14.76 acre tract at 30cents per square foot for a value of $192,884. Subtracting the total post-taking value of the two tracts from the pre-taking value, Osenbaugh quantified the damages to the remainder at $2,555,403. Osenbaugh predicated his opinion on six comparable sales which varied between 15cents and 70cents per square foot. ² He admitted on cross-examination that the jury had sufficient information within his report to arrive at their own finding of fair market value by selecting a different price per square foot. Curtis Sellers testified as an expert witness for the City. Utilizing six comparables ranging from 10cents to 73cents per square foot, he began by applying 23cents per square foot to the entire 159 acre tract. ³ He adjusted the value downward because all of the comparables had immediate access and water. Deducting $220,000 for the cost of roads, bridges, and water, he arrived at a value equivalent to 20cents per square foot. Applying the 20cents per square foot figure to the remainder tracts, he arrived at a pre-taking value of $672,000. He believed the post-taking value of the remainder to be zero, thus quantifying the remainder damages suffered by Parallax at $672,000.

All expert witnesses were subjected to rigorous cross-examination as to how they reached their opinions on the value of the land. Specifically, Etzold was cross-examined as to the location of comparable parcels on which he based his opinion, the selling price of the comparables, and the characteristics of the comparables such as frontages and improvements. Osenbaugh was cross-examined as to appraisal practice, the selling price of various comparables, and the characteristics of the various comparables such as frontages, improvements, location, and defects. Finally, Sellers was thoroughly cross-examined as to two prior appraisals of the land, the various comparables examined in all three appraisals, and the characteristics of the various comparables. The jury was bombarded with various prices per acre and prices per square foot from all three experts for both the land which is the subject of the litigation and the various comparable parcels. Significantly, Osenbaugh, past president of the Society of Real Estate Appraisers, testified that real estate appraisal is not an exact science and requires the exercise of personal judgment in using comparables to form an opinion as to the value of specific real estate. David Craig, past president of the American Institute of Real Estate Appraisers, agreed with Osenbaugh that appraisal was not an exact science.

STANDARD OF REVIEW

In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the jury's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81 (Tex.App.--El Paso 1992, no writ). If any probative evidence supports the jury's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex.1951); Neily v. Aaron, 724 S.W.2d 908 (Tex.App.--Fort Worth 1987, no writ); see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX.L.REV. 515 (1991).

A factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d at 660; Worsham Steel Co., 831 S.W.2d at 81. The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App --El Paso 1981, no writ). It is not within the province of this Court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.--El Paso 1984, no writ). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.--El Paso 1992, writ denied).

FAILURE TO URGE MOTION TO STRIKE

In Point of Error No. Three, Parallax complains of improper cross-examination of Osenbaugh. Specifically, Parallax asserts that the City posed a hypothetical question to Osenbaugh based on facts not in evidence. Osenbaugh was asked to calculate Parallax's compensation assuming a value of 41cents per square foot. Several questions after Osenbaugh was asked to assume the figure, Parallax objected on the grounds that there was nothing in the evidence showing a 41cents per square foot value. Even if we assume that Parallax's objection was timely, there is no indication in the record Parallax ever moved to strike the testimony already provided by Osenbaugh. ⁴ Merely urging an objection to testimony already elicited is insufficient to prevent the jury's consideration thereof or to prevent an appellate court's consideration of same in a sufficiency review. Therefore, any error posed by the testimony as to damages assuming the value not in evidence is waived by Parallax's failure to request that Osenbaugh's testimony be stricken. TEX.R.APP.P. 52(a); Hur v. City of Mesquite, 893 S.W.2d 227, 231 (Tex.App.--Amarillo 1995, writ denied); Prudential Ins. Co. Of America v. Uribe, 595 S.W.2d 554, 564 (Tex.Civ.App.--San Antonio 1979, writ ref'd n.r.e.); City of Denton v. Mathes, 528 S.W.2d 625, 634 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.). Point of Error No. Three is overruled....