Wood Oil Distributing, Inc. v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before OSBORN; FULLER
• Citation: Wood Oil Distributing, Inc. v. State, 746 S.W.2d 1 (Tex. App. 1987)
• Decision Date: 30 September 1987
• Docket Number: No. 08-87-00050-CV,08-87-00050-CV
• Parties: WOOD OIL DISTRIBUTING, INC., Appellant, v. The STATE of Texas, et al., Appellees.

Page 1

746 S.W.2d 1

WOOD OIL DISTRIBUTING, INC., Appellant, v. The STATE of Texas, et al., Appellees.

No. 08-87-00050-CV.

Court of Appeals of Texas El Paso.

Sept. 30, 1987.

Publication Ordered Feb. 17, 1988.

Rehearing Denied Oct. 28, 1987.

Robert Scogin, Finley & Scogin, Kermit, for appellant.

Mark Dettman, Co. Atty., Mary Ann Oakley, Midland, for appellees.

Before OSBORN, C.J., and FULLER and WOODWARD, JJ.

OPINION

FULLER, Justice.

The State of Texas condemned .164 acres out of a 9.4-acre tract. The landowner appeals from a jury verdict that awarded damages for only the amount of land taken. We reverse and remand for a new trial.

Points of Error Nos. One, Two, Three and Six assert that the trial court erred in refusing to grant Appellant's motion for continuance.

Appellant operated a truck stop (National Truck Stop) located north of I-20, west of Midland, Texas. Its very existence depended on truckers coming off of the Interstate. The State sought to condemn .164 acres out of the 9.4-acre tract for purposes of changing the entrance to Appellant's truck stop. Appellant's contention was that the proposed changes would result in a material and substantial impairment of access to the truck stop and would result in a diminished value to the remainder of the land. The State contended that the only matter that was changed was the circuity of travel, hence, no damages should be allowed for any diminished value of the remainder of the land. There was little contention that the value placed on the land taken was unreasonable, but Appellant's entire case was tried on an attempted showing that there was a material and substantial impairment of access as a result of the proposed changes. It was admitted at trial that there were no funds available for construction and there were no final construction plans in existence. The State contended that the schematic design plan was sufficient for purposes of trial. Appellant stoutly maintained that the plans available did not adequately set forth specifications of the proposed rerouting of the entrance to Appellant's truck stop and that, therefore, Appellant could not adequately present his case on impairment of access.

On November 26, 1986, the trial court had a pretrial conference in which the trial court ordered that depositions in the case would be taken December 3, 1986, with a trial commencing on the merits during the week of December 8, 1986. Appellant's attorney objected to the deposition date because he could not be present, due to a conflict, in that he was court-appointed to represent a defendant in a criminal trial. The court would not postpone the date for depositions. As a result, the Appellant's attorney did not have an opportunity to cross-examine the State's expert witness who had been presented for deposition on that date. This situation was further compounded by the fact that the depositions were not transcribed in time for commencement of trial. At the time of trial, Appellant filed his second motion for continuance, again urging that there were insufficient plans available to proceed to trial at this time, and also requested a continuance because of the failure of the court reporter to transcribe the depositions taken December 3, 1986, which were material since Appellant's attorney had been unable to be present.

By the time the trial date came, the relationship between the attorneys for the State and attorneys for the Appellant and the court had deteriorated and, at that time, the court had not decided on the motions for continuance.

The State had filed a motion in limine to restrict the Appellant from questioning witnesses in regard to travel diversion or circuity of travel. The trial court severely limited Appellant to examination of witnesses in regard to diminished value of the remainder. The net result was that, in effect, the trial court granted the State's motion in limine without allowing Appellant to fully develop by examination and cross-examination his allegation of material and substantial impairment of access. Appellant was required to develop his case by bill of exceptions, and we believe that this was in error. While circuity of travel is a matter of law, this does not mean that Appellant should be denied his day in court before the jury where witnesses are subject to the time-honored ordeal of examination and cross-examination. Appellant should have been allowed to present his case before the jury, and then if the court ruled as a matter of law that there was not a material and substantial impairment of access, the court could instruct the jury that this was not a matter that could be considered in...