State v. Sunland Supply Co., A--10905
| Decision Date | 08 June 1966 |
| Docket Number | No. A--10905,A--10905 |
| Citation | 404 S.W.2d 316 |
| Parties | The STATE of Texas, Petitioner, v. SUNLAND SUPPLY CO., Inc., Respondent. |
| Court | Texas Supreme Court |
Waggoner Carr, Atty. Gen., Austin, Robert C. Patterson, Asst. Atty. Gen., for petitioner.
Irion & Rash, El Paso, for respondent.
This is a condemnation case. Commissioners offered Sunland Supply Company $34,100 for its property. Sunland was dissatisfied only with the amount. Upon appeal to the court, the jury awarded Sunland $35,500. Sunland was still dissatisfied. The Court of Civil Appeals sitting at El Paso reversed the judgment of the trial court and ordered a new trial because it considered that the trial court had committed error in refusing to retire the jury and allowing counsel for Sunland to examine a State's appraisal witness upon voir dire outside of the presence of the jury, and had committed fundamental error in admitting testimony as to a so-called 'comparable sale.' 392 S.W.2d 369. We here reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. Our holding is that it was not error to refuse to retire the jury under the circumstances and that the trial court did not commit fundamental error. We do not reach the question of harm.
The circumstances surrounding the request for the court to retire the jury and permit the voir dire examination were these: The State's witness, Mr. Bart Colwell, qualified as an expert in the field of real estate appraisals. The property taken consisted of a city lot upon which there was an old building. The building had been remodeled into a store. As a predicate for his opinion as to the value of Sunland's property, he stated that there were three ways to arrive at value: (1) the reproduction or cost approach, (2) the income approach, i.e., how much a person would be willing to invest in the property considering its net income, and (3) the market data approach, i.e., the amounts received from sales of comparable property in the vicinity. Mr. Colwell used all three methods.
Using the cost or reproduction method, he assigned $9,000 to the land and $26,829 to the building, and arrived at a total value of $35,829. Using the income approach, he arrived at a value of $35,473 which he rounded out to $35,500. 1 In testifying upon this theory, Mr. Colwell recited the rental paid on several comparable properties, the rentals per square foot, the age and utility of the properties, the taxes and upkeep upon the property, and similar considerations. The testimony was not offered to prove the truth of the rentals received but to show Mr. Colwell's mental processes. It was during this testimony that the request came for the retirement of the jury and voir dire examination. This will be elaborated upon below. Third, he testified as to sales of comparable properties. He listed six sales, one of which was the sale from Fuentes to Friedman which caused the Court of Civil Appeals to reverse the judgment of the trial court. The testimony of Mr. Colwell as to that sale was not challenged. It came in without objection, and there was no motion to strike it after counsel for Sunland developed that this sale was one upon the foreclosure of a mortgage. After having testified as to these six 'comparable sales,' Mr. Colwell testified that upon the basis of this third method, the property was worth $35,000. After all of the above testimony, his conclusion was that the property was worth $35,500. No objection was made to his condlusion.
For us to judge the actions of the trial court in the handling of a trial, the particular action complained of on appeal must be put in proper context. Mr. Colwell had testified at some length on his reproduction-cost theory and expressed an opinion of a value of $35,829 which included a value of $9,000 for the land. No objection was made of that conclusion. Then he began his testimony regarding the income approach to value. He was of the opinion that $450 was a reasonable monthly rental value of this property. He was asked if he had pictures of other properties which he considered in arriving at the rental figure. He said he did. At this point, counsel for Sunland requested that the jury be retired and that he be permitted to take Colwell on voir dire examination. The court asked why he wanted the jury retired. Counsel for Sunland said, 'As to the comparables * * * he (counsel for the State) asked for the photographs, and he has had the photographs marked for the purpose of handing them to the witness (Colwell) to go into the comparables, and before he goes into the comparables we would like to exercise our right of having the witness on voir dire examination in the absence of the jury.' A colloquy between counsel and the court then took place at the bench outside the hearing of the court reporter. The record does not show what reasons were given, or what statements were made. The court's ruling was that counsel for Sunland could take the witness on voir dire before the jury, but the court declined to retire the jury for such purpose. Counsel for Sunland noted an exception, but he said, 'I don't want to examine him in the presence of the jury.'
Thus the record shows that counsel did not give the court any particular reason why he wanted the jury retired. The sale from Fuentes to Friedman was not then before the court. It had not been mentioned. The testimony before the court was of comparable rentals of property on which there were buildings. In its argument, Sunland connects the request for the voir dire examination to the Fuentesto-Friedman sale. The Fuentes-to-Friedman sale came up some 170 pages later in the Statement of Facts, and Mr. Colwell regarded that property as vacant land. It was not included in his 'income approach.'
While the testimony as to the sale from Fuentes to Friedman was not objected to when it was offered, the complaint is that it was not a 'comparable sale' because it was not made by a willing seller under no compulsion to sell; it was a sale by a trustee under a deed of trust. Assuming that this matter and these circumstances had been...
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