State v Interstate Northborough Part.

• Decision Date: 24 June 1999
• Citation: 8 S.W.3d 4
• Parties: <!--8 S.W.3d 4 (Tex.App.-Houston 1999) THE STATE OF TEXAS, Appellant v. INTERSTATE NORTHBOROUGH PARTNERSHIP, ET AL., Appellees. NO. 14-96-01040-CV. IN THE FOURTEENTH COURT OF APPEALS
• Court: Texas Court of Appeals

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8 S.W.3d 4 (Tex.App.-Houston[14th Dist.] 1999) THE STATE OF TEXAS , Appellant
v.
INTERSTATE NORTHBOROUGH PARTNERSHIP, ET AL., Appellees. NO. 14-96-01040-CV. IN THE FOURTEENTH COURT OF APPEALS. June 24, 1999.
Rehearing Overruled December 16, 1999.

On Appeal from the County Civil Court at Law Number Three Harris County, Texas Trial Court Cause No. 590,375.

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Copyrighted Material Omitted

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Panel consists of Justices Yates, Amidei, and Anderson.

MAJORITY OPINION

Leslie Brock Yates, Justice

This is an appeal from a judgment awarding Interstate Northborough Partnership¹

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one million dollars in compensation for damages caused by the State's condemnation of a portion of Interstate Northborough Partnership's property. The State brings seven points of error. We reverse and remand.

Background

The State filed a condemnation suit in 1991 to acquire property owned by Interstate Northborough Partnership ("INP") located at the corner of Interstate Highway 45 ("I-45") and Meadowfern Drive. The acquisition was necessary for widening I-45 and its associated frontage road. INP's property is a 4.8 acre tract improved with an eight-story office building, a surface parking lot in front, and a parking garage in the rear. The property acquired consists of a strip of land approximately 0.365 acres. Before the acquisition, the office building was set back 96 feet from the frontage road. After the acquisition, the office building was 22.5 feet from the frontage road. The acquisition shortened the length of two driveways connecting the front parking lot and garage with the frontage road and caused the loss of parking spaces in the front surface lot.

The case went to the jury on a single issue: the difference in the market value of INP's property immediately before the State's taking and the market value of the remainder property immediately after the taking. The jury answered $1 million and the trial court entered judgment on the verdict.

In this appeal, the State challenges the admission of evidence regarding damages caused by: (1) diminished access to the property; (2) increased proximity to the roadway; (3) highway construction in the area; and (4) increased noise. The State also complains about the trial court's exclusion of evidence offered by the State regarding the effect of highway proximity on occupancy and rental rates. Additionally, the State alleges the trial court erred in allowing their motion for new trial to be overruled by operation of law and in granting INP's motion for new trial after a previous verdict.

Impairment of Access

The State's first point of error, concerning diminished access, includes three complaints.² The State contends the trial court erred by (1) finding a material and substantial impairment of access, (2) admitting evidence regarding damages due to diminished access to the property, and (3) refusing to instruct the jury that diminished access was not compensable.

The Texas Constitution provides in part: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made. . . ." Tex. Const. Art. I, § 17 (1997). Early in the State's history, the Texas Supreme Court held that, when part of a person's property is taken, the State constitution requires adequate compensation both for the part taken and any severance damages to the remainder. See State

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v. Schmidt, 867 S.W.2d 769, 772 (Tex. 1993)(citing Buffalo B., B. & Colo. R.R. v. Ferris, 26 Tex. 588, 603 (1863). The supreme court determined that the proper rule for ascertaining damages was the difference between the market value of the remainder tract immediately before the taking and the market value of the remainder tract immediately after the taking, considering the nature of the improvement, and the use to which the land taken is to be put. See Schmidt, 867 S.W.2d at 772 (citing State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 197-198 (1936).

Section 21.042(c) of the Property Code requires consideration of "the effect of the condemnation on the value of the property owner's remaining property." Tex. Prop. Code Ann. § 21.042(c) (Vernon 1984). Thus, the statute allows recovery for damages from the taking of property, but not for the effect of the State's change in the use of the roadway for which the property was taken. See Schmidt, 867 S.W.2d at 777-78. Whether property has been "damaged" under the constitution is a question of law. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). Likewise, whether there has been a material and substantial impairment of access is a question of law and is subject to de novo review. See id. The trial court must make this determination prior to trial and control the admission of evidence accordingly. See id.³

In the instant case, the State filed a motion to exclude damages relating to increased noise, increased proximity to the roadway, and diminished access. The trial court held a hearing on this motion and heard evidence from several witnesses. Following the hearing, the trial court found as a matter of law there had been a material and substantial impairment of access. Accordingly, the court denied the State's motion and allowed the evidence to go to the jury.

The seminal case on impaired access damages is Dupuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965). In Dupuy, the court recognized that a landowner is entitled to compensation when a public improvement destroys all reasonable access thereby damaging the property. See id. at 109. Dupuy also recognized that no right to compensation extends to a property owner who has reasonable access to his property after the construction of a public improvement because the benefits of private ownership have been preserved. See id.

If suitable access remains, damages for diminishment of means of access is not compensable. See Archenhold Auto Supply Co. v. City of Waco, 396 S.W.2d 111, 114 (Tex. 1965)(denying compensation for diminished access when one means of access was completely impaired while another remained open). With a proper showing, however, a landowner may recover damages for impaired access if he can show his damage is special, rather than community. See State v. Centennial Mortgage Corp., 867 S.W.2d 783, 784 (Tex. 1993).

In support of its damages claim, INP offered the testimony of Vernon Henry, a city planning consultant, Kevin Wyatt, a real estate broker specializing in office building leasing, and David Lewis, a real estate appraiser. Henry testified that he had been retained to evaluate the impact of the taking on the building, parking, access, and general setting. Henry concluded the impact was severe. Henry testified

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that the building has two driveways connecting the front surface lot and the parking garage with Meadowfern (a street crossing the frontage road at the north end of the property) and two driveways connecting these facilities with the freeway frontage road. Before the taking, the throat length of the driveways on the frontage road was 71 feet, which Henry testified gave sufficient "stacking room" for vehicles to enter and exit the property.

Henry concluded that, after the taking, the two driveways to the frontage road were unsafe. In reaching this conclusion, Henry acknowledged he retained a traffic consultant who found that most of the traffic on the frontage road exceeded the speed limit and that the throat length of the driveways, reduced to less than...