Silberstein v. State

• Citation: 522 S.W.2d 562
• Decision Date: 16 April 1975
• Docket Number: No. 12235,12235
• Parties: Bessie SILBERSTEIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 562

522 S.W.2d 562

Bessie SILBERSTEIN, Appellant, v. The STATE of Texas, Appellee.

No. 12235.

Court of Civil Appeals of Texas Austin.

April 16, 1975.

Rehearing Denied May 14, 1975.

Robert W. Norris, Phillips & Norris, Austin, for appellant.

John L. Hill, Atty. Gen., Watson C. Arnold, Asst. Atty. Gen., Austin, for appellee.

PHILLIPS, Chief Justice.

This is a condemnation case involving a partial taking of property adjacent to and on the east side of Interstate Highway 35 in Austin, Travis County, Texas. The case was tried before a jury that found the value of the land taken was $153,894.00; that the value of the entire tract prior to the taking was $208,235.20; and that the value of the remainder after taking was $54,341.20. These findings were in answer to special issues nembers 1, 2 and 3. The court entered judgment accordingly. We affirm this judgment.

Appellant is before us on a number of points of error. The first of which complains that there is no evidence, consequently, insufficient evidence, of probative value on which the jury could base its answer to special issues numbers 1, 2 and 3. Appellant also maintains that the jury's verdict with respect to these issues is so contrary to the overwhelming weight and preponderance of the credible evidence as to make it manifestly wrong and unjust. We overrule these points.

The jury's findings in response to the three special issues were as stated above. The effect of the jury's verdict is that there was no damage to the remainder.

The State's expert witness Tieken valued the whole property prior to the date of taking at $182,200.00. He valued the part taken at $134,650.00. The remainder before taking was valued at $47,550.00. These values were based on a unit figure of $3.50 per square foot. He testified that there was no damage to the remainder.

Appellant's expert witness Reed valued the whole property at $368,489.00 and the part taken at $280,185.00. He valued the remainder before taking at $88,305.00, and the value of the remainder after taking at $40,756.00. It was his opinion that there was approximately $47,000.00 worth of damage to the remainder. Appellant offered another value witness who testified that the market value of appellant's remainder after taking was $33,960.00.

Appellant relies on Roberts v. State of Texas, 350 S.W.2d 388 (Tex . Civ.App.1961, no writ), wherein the court reversed a condemnation award made in the trial court because it was so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Here (as in the case at bar) the jury found that the remainder had a value greater than that found by any of the witnesses. Also see City of Irving v. Caster, 397 S.W.2d 952 (Tex.Civ.App.1965, no writ). In view of the facts before us, the jury's finding on the value of the remainder does not require us to reverse this case. The principles announced in Roberts first restrict the jury only to the Lowest figure testified to when finding the value of the remaining land after taking. Secondly, we note that Roberts cites many cases with approval holding 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 accept all the testimony of any witness or to reject it all. Moreover, opinion evidence is not conclusive and 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. While we do not necessarily commit ourselves to the first proposition announced in Roberts, we do accept the second as the law in Texas and will apply it accordingly.

The trial of this case lasted six days during which the jury heard extensive and complicated testimony pertaining to the value of appellant's property. The State's appraisal witness Tieken is an independent fee appraiser with a master's degree and sixteen years' experience in the field. He based his opinion of value on a study of comparable sales located near the subject property on the same side of Interstate Highway 35. The comparable sales which Mr. Tieken relied on sold for $2.53, $3.16, $3.89 and $3.51 per square foot.

After evaluating the comparable sales offered in evidence, Mr. Tieken testified that the whole property had a market value of $182,200.00. He then valued the part taken at $134,650.00 and the remainder before the taking at $47,550.00. He valued the remainder after the taking at $47,550.00. These values were based on a unit figure of $3.50 per square foot.

Tieken further testified that, in his opinion, there was no damage to the remainder as a result of the taking. He based this opinion on the fact that the remaining land would still have excellent access to the frontage road going into 19th Street. Furthermore, he stated that the lay of the land, the angle of the street and the twenty-foot alley at the rear of the property were all very similar to the remainder before taking. Tieken further testified that in his opinion there was even a possibility that the value of the remainder was enhanced by the taking.

The evidence established the fact that generally property on the east side of Interstate Highway 35 is of less value than that on the west side. The subject property is on the east side. Nonetheless, appellant's value witness Reed testified to sales of property, not only on the west side of the highway, but property located in an area where values are generally higher than those in which the subject property is located. Witness Reed explained this discrepancy by stating that the subject property was in same traffic flow with that of higher value. Be that as it may, the jury, evidently, thought otherwise.

The jury was not required to accept any specific figure testified to by any one witness. It was free to accept or reject the testimony of any witness and to reach its own conclusion by blending all the evidence, aided by its common sense and experience. Roberts v. State, Supra. Indeed, the higher figure found by the jury inured to appellant's benefit so she should not be heard to complain here. See Cannon v. State, 473 S.W.2d 325 (Tex.Civ.App.1971, no writ).

Appellant also complains that the testimony of her several witnesses as to the value of the buildings on the subject property was disregarded by the jury in making its award. We overrule this contention for two reasons. First, the comparables offered by the State included buildings. Secondly, there was evidence presented by Tieken that the buildings had no value. He based this testimony on the fact that the value of the subject land had increased to the point where the buildings thereon would no longer produce an acceptable return on this increased value. Consequently, the point had been reached where it would actually benefit the land to raze the buildings. Again, the jury believed this testimony and we have no valid reason but to affirm the finding . In summation, we hold that there was ample evidence upon which the jury based its findings to the special issues in question.

Next we move to appellant's point urging error in the trial court in admitting the estate tax return and the inventory of the estate of Sam Silberstein in evidence over appellant's objection. We overrule this point.

The tex return and inventory were used by appellee to impeach appellant's value witness Reed's testimony. There was no predicate laid for the introductory of these documents which appellee maintains were admissible under authority of Art. 3726, Vernon's Civil Statutes. Appellant contends that appellee did not comply with the notice requirements of the statute and, further, that this statute only allows such records to be offered in evidence without the necessity of proof of execution provided that such instruments are otherwise admissible. We have no quarrel with this statement of the law, nonetheless, it is our opinion, pretermitting any discussion of the admissibility of the inventory which, we believe, is irrelevant here, that the tax return was admissible. A rendition of taxes made by a landowner may be introduced at trial to show a variance in market value from that claimed by the landowner. Boyer and Lucas v. St. Louis, S.F. & T. Ry. Co., 97 Tex. 107, 76 S.W. 441 (1903). The basis for admissibility in that case, not a condemnation proceeding, was as an admission by a party. The rule in Boyer has been applied in condemnation cases where tax renditions of the subject property made by a landowner-condemnee or his agent are admissible (if offered by the condemnor) as either an admission of a party, and/or as a circumstance tending to show the market value of the property. ¹

For our purposes, we can see no difference between a tax return and a tax rendition. Here the return was not introduced by the landowner, but counsel for appellee introduced the return under Art. 3726, Vernon's Civ.St.Ann. We must agree with appellant that the State failed to give the proper notice required by the statute; however, under the record before us, while this was error, it was harmless error. Rule 434, Texas Rules of Civil Procedure. See Hinton v. Uvalde Paving Co., 77 S.W.2d 733 (Tex.Civ.App.1934, writ ref'd); Miller v. Unsicker, 5 S.W.2d 624, 625 (Tex.Civ.App.1928, no writ).

We turn next to appellant's point which asserts the error of the trial court in allowing appellant's witnesses to answer questions asked them by counsel for the State as to the total amount of compensation appellant would be entitled to receive if the jury accepted their opinion of the market value of the whole property prior to taking, the market value of the part taken, the market value of the remainder immediately before taking, and the market value of the remainder immediately after the taking on the ground that the question and the answer thereto informed the jury of...