Wagoner v. City of Arlington

• Decision Date: 24 March 1961
• Docket Number: No. 16203,16203
• Citation: 345 S.W.2d 759
• Parties: R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.
• Court: Texas Court of Appeals

Page 759

345 S.W.2d 759

R. S. WAGONER, Appellant, v. CITY OF ARLINGTON, Appellee.

No. 16203.

Court of Civil Appeals of Texas, Fort Worth.

March 24, 1961.

Rehearing Denied April 21, 1961.

Martin, Moore & Tackett, and Elvin E. Tackett, Fort Worth, for appellant.

James E. Wright, Fort Worth, for appellee.

MASSEY, Chief Justice.

This is a condemnation suit. Appellant R. S. Wagoner was the owner of the property taken, and of land not taken, to the extent of approximately 188 acres, lying across a county road from that condemned by the City of Arlington for the purpose of constructing an airport. He will be hereinafter referred to as condemnee. The City of Arlington will be hereinafter referred to as the city.

Condemnee contested the right of the city to take his property. After issues were joined in the trial court the city filed its motion for summary judgment in relation to the matter of right and propriety of its condemnation proceedings, and following a hearing partial summary judgment was entered as prayed for. The effect thereof was to make the only issues for trial before the jury the amount of damages which condemnee was entitled to receive.

At the conclusion of the trial a single special issue was submitted to the jury, posing inquiry as to the value of the condemnee's property taken for airport purposes. The court refused to submit issues upon the question of the value, 'before and after' condemnation, of condemnee's remaining 188 acres. The court denied condemnee's motion for leave to make the opening and closing argument before the jury, allowing the city to make such over condemnee's protest.

The jury retured its verdict finding the value of the condemned land, and judgment was entered based upon the verdict. Condemnee has appealed.

Judgment reversed and remanded.

We are of the opinion that the case should be reversed because of the refusal to permit the condemnee to open and close the argument made to the jury. In the case of Ready v. City of Marshall, Tex.Civ.App., Ft. Worth 1950, 234 S.W.2d 104, this court had a somewhat similar case to that before us and saw fit to reverse and remand the same for another trial because of the failure of the trial court to permit the condemnee to open and close the argument. The holding was that reversible error appeared and that Texas Rules of Civil Procedure, rule 269 controlled the case.

We believe any attempted distinction between the instant case and that of Ready v. City of Marshall would be of form rather than of substance. In our opinion the decision reached in the Ready case was correct and the judgment therein was properly reversed. It necessarily follows that the judgment in the instant case should be reversed and remanded because of the trial court having denied condemnee the right to open and close the argument to the jury on the issue of damages, such being the only issue submitted.

We recognize that argument may be made that T.R.C.P. 434 applies to a situation such as this. It has been held that the denial to the party who has the right, under the provisions of T.R.C.P. 266 and 269, to open and close the argument before the jury constituted an error of law committed during the course of the trial, and that in order for such error to require reversal the complainant thereof must demonstrate from the whole record that it was reasonably calculated to cause and probably did cause the return of an erroneous verdict or rendition of an erroneous judgment. Hassell v. Pruner, Tex.Civ.App., Amarillo 1956, 286 S.W.2d 266, writ ref. n. r. e. (a will contest); Harrison v. Chesshir, Tex.Civ.App., Amarillo 1958, 316 S.W.2d 909, reversed on other grounds in 159 Tex. 359, 320 S.W.2d 814 (an injunction suit). We have noticed also that in other jurisdictions the denial of a right to open and close has been held to warrant reversal only when the denial has been shown to have amounted to an abuse of discretion. See text and annotations at 53 Am.Jur., p. 368, 'Trial', sec. 462, 'Order of Argument; Right to Open and Close'.

Nevertheless, we believe that T.R.C.P. 434 does not apply to the particular case and situation before us and that T.R.C.P. 266 and 269 afforded condemnee the right to open and close the argument before the jury, since he insisted thereupon the moved the court for leave to do so, which motion was denied. Regarding the securing of such right see Rayburn, Texas Law of Condemnation, Sec. 214(1), 'Argument In the Trial Court--Permissible and Erroneous Argument'. In 5 Texas Bar Journal p. 95 and 8 Texas Bar Journal p. 8 these rules were interpreted by the subcommittee on interpretation of the Texas Rules of Civil Procedure. This interpretation is printed under both rules in Vernon's Annotated Texas Rules. The answer printed is upon the matter of 'when the plaintiff has the right to open and close', and excepts from such times '(2) where the defendant has the burden of proof on all matters which are submitted by the Court's charge to the jury, * * *'. T.R.C.P. 269 affirmatively states that the 'party having the burden of proof * * * on all matters which are submitted by the charge' shall be entitled to open and conclude the argument. In the instant case the condemnee had and preserved the substantive legal right to open and conclude the argument to the jury. There is an absence of any proof placed in the record which creates a contrary inference. We therefore believe that the error should be considered and treated as so substantial in nature or so connected with the rights of the parties or the course of the proceedings that it cannot be said that the error did not influence the result. Therefore said error amounted to reversible error. On the matter of such a defendant's right to open and close and upon the distinction applicable to cases decided before and after the effective date of the 1941 Rules see McDonald, Texas Civil Practice, p. 1181, 'Jury Trial: Argument', sec. 13.02, 'Order and Time Allowed'.

The evidence in the record constituted proof that the parcel of condemnee's land which was condemned by the city, lying on one side of a county road across from the remainder of condemnee's land, was, at the time it was taken, being used along with and in conjunction with said remainder for one general purpose and in such manner as to warrant treating the two tracts as an entire parcel. In other words the situation was such that under ordinary usage the inquiry pursuant to condemnation proceedings would have been not only as to the value of the land condemned and taken, but additionally as to the damages sustained by the decrease, if any, in the value of his remaining land. See Concho, S. S. & L. V. Ry. Co. v. Sanders, Tex.Civ.App., Austin 1912, 144 S.W. 693; Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., Amarillo 1949, 228 S.W.2d 925, writ ref. n. r. e.; Gulf, Colorado and Santa Fe Railway Co. v. Payne, Tex.Civ.App., Ft. Worth 1957, 308 S.W.2d 146; 18 Am.Jur., p. 910, 'Eminent Domain', Sec. 270, 'Damage to Other Land of Same Owner'; 170 A.L.R. at page 721 et seq. under Annotation, 'Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking'; 6 A.L.R.2d at page 1197 et seq. under Annotation, 'Unity or contiguity of properties essential to allowance of damages in emient domain proceedings on account of remaining property.'

We do not believe, however, that in this particular case condemnee properly showed himself entitled to introduce evidence concerning the diminution in the value of his remaining land after a part was taken,--or tendered evidence thereon proper to be received,--and therefore there was no error in the court's refusal to admit same. The reason therefor is somewhat peculiar and may be such as will not reoccur upon the occasion of another trial. Condemnee was attempting to try his case on the theory that the highest and best use of his property, both as to that taken in condemnation and as to the remainder left in his hands, was for residential purposes and not for the farming and ranching purposes to...