State v. Delany, 14-03-00052-CV.

CourtCourt of Appeals of Texas
Writing for the CourtPaul C. Murphy
Citation149 S.W.3d 655
PartiesThe STATE of Texas and Texas, Department of Transportation, Appellants, v. George M. DELANY and Patricia Ann Delany, Appellees.
Docket NumberNo. 14-03-00052-CV.,14-03-00052-CV.
Decision Date16 March 2004
149 S.W.3d 655
The STATE of Texas and Texas, Department of Transportation, Appellants,
v.
George M. DELANY and Patricia Ann Delany, Appellees.
No. 14-03-00052-CV.
Court of Appeals of Texas, Houston (14th Dist.).
March 16, 2004.
Rehearing Overruled June 17, 2004.
Opinion Dissenting to Denial of Rehearing En Banc November 18, 2004.

[149 S.W.3d 657]

Cavitt Wendlandt, Rick Thompson, Lisa Marie Nieman, Susan Desmarais Bonnen, Austin, for appellants.

Billy C. Dyer, H. Dixon Montague, Houston, for appellees.

Panel consists of Justices ANDERSON, SEYMORE, and MURPHY.*

OPINION

PAUL C. MURPHY, Senior Chief Justice (Assigned).


The State of Texas and the Texas Department of Transportation (collectively "the State") appeal from the trial court's award of $497,637.80, including costs, to appellees George and Patricia Delany. Appellees had originally brought an inverse condemnation action arising from the State's removal of the highway (the "Connector Road") connecting the northbound

149 S.W.3d 658

frontage road of Interstate 45 to Johnny Palmer Road. The State filed a plea to the jurisdiction, which was denied by the trial court. On interlocutory appeal, the First Court of Appeals affirmed and remanded the case for trial on the merits.1 After making a preliminary finding that there had been a material and substantial impairment of access, the trial court conducted a bench trial on the issue of damages.2 This appeal followed.

The State presents four issues for review. It contends: (1) appellees' inverse condemnation claim is not ripe for review; (2) appellees failed to prove an unconstitutional taking of access to their property as a matter of law; (3) the trial court committed reversible error in refusing to permit the State to make an offer of proof; and (4) the trial court abused its discretion in awarding sanctions against the State. We affirm.

Ripeness

In one issue, the State argues appellees' inverse condemnation claim is not ripe for review. Appellees counter by arguing the law-of-the-case doctrine bars the State from relitigating the ripeness issue because the First Court of Appeals has already ruled on this claim in a prior appeal. We agree with appellees' contention.

The Supreme Court of Texas recently defined the law-of-the-case doctrine as "that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent steps."3 The State argues this doctrine is inapplicable because a court of last resort, namely the Supreme Court, has not decided this issue.4 But this contention does not recognize the long line of cases where this Court has applied the doctrine to issues it has previously decided.5 This Court has also applied the doctrine to issues previously decided by the First Court of Appeals.6

The law-of-the-case doctrine therefore bars relitigation of the State's ripeness claim unless either: (1) the earlier holding is clearly erroneous or (2) the later stage of litigation presents different parties, different issues or more fully developed facts.7 The State urges us to find that our sister court's earlier holding in this case is clearly erroneous, yet it advances identical arguments and citations in support of its claim as before. We hold the law-of-the-case doctrine bars relitigation of the

149 S.W.3d 659

State's ripeness claim and overrule its first issue.

Unconstitutional Taking

In its second issue, the State argues the trial court erred in holding that an unconstitutional taking occurred when the State removed the Connector Road abutting appellees' property. While the State raises several claims in connection with this issue, we find none requires reversal.

The State first claims that redesigning exit ramps within its existing right-of-way is not an unconstitutional taking as a matter of law. However, it is well settled that a direct physical invasion of property is not required under Article I, Section 17 of the Texas Constitution to entitle a landowner to compensatory damages.8 One who owns property abutting a highway possesses an easement of access to and from the existing highway in addition to those rights held in common with the general public.9 This easement of access is a constitutionally-protected property right, and a landowner is entitled to compensation if a material and substantial impairment of access has been established.10 This would include compensation for diminution in value of the property resulting from the loss of access.11 Therefore, it is well settled that an abutting landowner may be entitled to compensation when the State alters the use of its existing right-of-way, provided that a material and substantial impairment of access has been established.

Second, the State claims the trial court erred in concluding appellees had a vested easement of access to the Connector Road. As we have previously stated, an abutting landowner possesses an easement of access to and from the highway.12 The State argues appellees cannot claim access rights to the highway because the property did not abut the pavement of the Connector Road. The issue thus presented is whether a landowner has a right of access to the highway when his land abuts only a right-of-way to the highway, and not the highway pavement itself.

Texas courts have refused to extend to an abutting landowner the right of access when an intervening strip of land separates the landowner's property from the road's surface.13 But the facts of this case are distinguishable from those presented in Fuller, Thomas, and Triplett. The record reflects, and the State even contends, appellees' property abutted the public right-of-way adjoining the Connector Road. Courts in other jurisdictions have previously extended access rights to a landowner whose property abuts the road easement but not the road itself.14

149 S.W.3d 660

Accordingly, we hold the trial court properly concluded appellees had a vested easement of access to the Connector Road. We therefore find it unnecessary to consider the State's third claim that it did not pledge access rights from appellees' property to the Connector Road because the easement arises by operation of law.

Fourth, the State claims appellees had an easement of access from their property to the Interstate 45 frontage road because their property abuts the State's right-of-way. We disagree. While appellees' property abuts land formerly used as right-of-way for the Connector Road, that road no longer exists. Abandonment occurs when the use for which the property was dedicated becomes either impossible or so highly improbable as to become practically impossible, or where the object of the use wholly fails.15 The State originally condemned what became known as Parcel 9 in part for the purpose of constructing the Connector Road. That the State has planted grass and stored construction materials in the area where the Connector Road and its accompanying right-of-way used to be located is undisputed. The evidence thus reveals, despite the State's arguments to the contrary, the right-of-way abutting appellees' property has been abandoned in favor of some other purpose. As previously stated, Texas law does not extend access rights to owners of property separated from the highway by an abandoned right-of-way.16 We find appellees' property abuts neither the Interstate 45 frontage road nor its accompanying right-of-way, and therefore they do not possess access rights to that highway.

Fifth, the State claims the trial court improperly concluded its proposed driveways were unsafe and dangerous as a matter of law because the testimony cannot support a finding of denial of access. When conducting a legal sufficiency review, we disregard all evidence and inferences contrary to the trial court's finding.17 We will uphold the trial court's finding that the driveways proposed by the State were unsafe and dangerous if more than a scintilla of evidence exists to support that determination.18 Tom Edmonds, an experienced real estate appraiser, testified that a person would "accept tremendous liability in building a drive [way] anywhere from 240 to 590 feet [in length] to this roadway.... No reasonable, prudent person would consider using this property with the liability inherent in such a fashion." We find the evidence was legally sufficient to support the trial court's finding that the driveways proposed by the State were unsafe and dangerous.

Sixth, the State claims the trial court erred in finding a material and substantial impairment of access to appellees' property. We disagree. Whether access rights have been materially and substantially impaired is a question of law.19 We have already determined appellees had an easement of access to the Connector Road. The evidence establishes that the State removed the Connector Road, leaving appellees without access to any highway. Moreover, it is clear the driveways proposed by the State could not serve as

149 S.W.3d 661

suitable means of access. We therefore must agree with the trial court's conclusion that the removal of the Connector Road resulted in a material and substantial impairment of access to appellees' property. Accordingly, the State's second issue is overruled.

Offer of Proof

In its third issue, the State argues the trial court committed reversible error in refusing to permit the State to make an offer of proof during the trial on damages. The State sought to "offer and develop testimony regarding the severity of the impairment of access to the property or the viability and cost" of the driveway proposals it put forth during the preliminary hearing on access rights and impairment.

Error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected.20 We therefore review for harmful error.21 To show harm, the exclusion of evidence must be controlling on a material issue and not cumulative of other evidence.22 A trial court's refusal to permit an...

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4 cases
  • Vuong v. Luk
    • United States
    • Court of Appeals of Texas
    • January 17, 2013
    ...App.—Waco 2005, orig. proceeding) (citing Pondrum v. Gray, 298 S.W. 409, 412 (Tex. Comm'n App. 1927, holding approved), State v. Delany, 149 S.W.3d 655, 662 (Tex. App.— Houston [14th Dist.] 2004), rev'd on other grounds, 197 S.W.3d 297 (Tex. 2006), Sutton, 47 S.W.3d at 184-85, and Harlandal......
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    • United States
    • Court of Appeals of Texas
    • December 19, 2013
    ...App.—Waco 2005, orig. proceeding) (citing Pondrum v. Gray, 298 S.W. 409, 412 (Tex. Comm'n App. 1927, holding approved), State v. Delany, 149 S.W.3d 655, 662 (Tex. App.— Houston [14th Dist.] 2004), rev'd on other grounds, 197 S.W.3d 297 (Tex. 2006), Sutton, 47 S.W.3d at 184-85, and Harlandal......
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    • United States
    • Supreme Court of Texas
    • April 27, 2005
    ...an attorney in a non-legal capacity. See Pondrum v. Gray, 298 S.W. 409, 412 (Tex. Comm'n App.1927, holding approved); State v. Delany, 149 S.W.3d 655, 662 (Tex.App.-Houston [14th Dist.] 2004, pet. filed); Sutton v. Est. of McCormick, 47 S.W.3d 179, 184-85 (Tex.App.-Corpus Christi 2001, no p......
  • State v. Delany, 04-0628.
    • United States
    • Supreme Court of Texas
    • April 28, 2006
    ...to the I-45 frontage road because Parcel 9 had been abandoned; and (3) even if they did have access, it would be unsafe and dangerous. 149 S.W.3d 655 (Tex.App.-Houston [14th Dist.] 2004). Two members of the Court dissented from the denial of rehearing en Texas has long recognized that prope......

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