









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00045-CV
______________________________


THE STATE OF TEXAS, Appellant

V.

BILL HARRISON, ET UX., Appellees



On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 533-93





Before Morriss, C.J., Ross and Grant,* JJ.
Opinion by Justice Ross
*Ben Z. Grant, Justice, Retired, Sitting by Assignment

O P I N I O N

	This is the second time this land condemnation case has been before this Court. 
In 1998, we reversed and remanded for a new trial, which is now the subject of this appeal. 
	In 1993, the State of Texas, in order to further its plan of widening State Highway
300, filed a petition to condemn 15.809 acres of a 212-acre tract of land owned by Bill and
Imogene Harrison. (1)
  The Harrisons' property had frontage on S.H. 300 and on Pattonfield
Road, a road along which the Gilmer city limits line runs.  In 1996, the Special
Commissioners awarded the Harrisons $47,220.00 for the 15.809 acres.  The Harrisons
filed an objection to the award, and the administrative proceeding was converted into a civil
suit.  
	In the first jury trial, a judgment favorable to the Harrisons was entered, and the
State appealed to this Court.  As stated, we reversed and remanded for a new trial.  After
the second jury trial, the Harrisons were awarded $118,567.50 for the property, which
judgment the State now appeals.  The State asserts the trial court abused its discretion in
admitting evidence of:  1) noncomparable sales; 2) the landowner's specific plans and
intended use of the property; 3) a potential sale; and 4) the landowner's value opinion,
which was based on an inadmissible remote sale.  The State further contends the trial
court erred:  1) in denying its motion for mistrial, based on counsel for the Harrisons
improperly telling the jury the court of appeals had approved the use of the comparable
sales utilized by the Harrisons' appraiser; and 2) in denying the State's motion for judgment
notwithstanding the verdict and motion for new trial because there was no evidence, or in
the alternative, insufficient evidence to support the jury's finding as to the market value of
the Harrisons' 15.809 acres of land as of May 2, 1996.
 Evidentiary rulings are committed to the trial court's sound discretion.  Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).  However, if we
determine an admission of evidence by the trial court was an erroneous admission, then
we must determine whether such admission requires reversal.  Boothe v. Hausler, 766
S.W.2d 788, 789 (Tex. 1989).  This requires an examination of the entire record.  Id.  If the
erroneously admitted evidence is merely cumulative or does not concern a material issue
dispositive of the case, the error is harmless.  Id.  Only when the error probably caused the
rendition of an improper judgment is a cause to be reversed.  Tex. R. App. P. 44.1(a)(1).
	The State's appraiser testified that the property's highest and best use was rural
residential, which entitled the Harrisons to $46,444.00 for the 15.809 acres.  The Harrisons'
appraiser testified the primary highest and best use was for commercial or industrial use. 
In his opinion, the Harrisons were entitled to $152,192.00.  Mr. Harrison testified he
requested compensation of $189,708.00 for the property, which he had intended to be
developed commercially.  
	The Harrisons' appraiser based his valuation on four other sales:  1) a 3.216-acre
tract which was already developed as a wrecking yard; 2) a 1.46-acre tract which was
improved with a residence after purchase; 3) a 1.47-acre tract which was improved with a
residence after purchase; and 4) an 11.302-acre tract which was improved with a Wal-Mart
department store after purchase.  At a pretrial hearing, however, both the State and the
Harrisons agreed that the 3.216-acre tract was not a comparable sale for an unimproved
tract like the Harrisons' property.  At trial, therefore, the Harrisons' appraiser relied on the
two residential lots and the Wal-Mart tract.  At oral argument of this case, the Harrisons'
attorney conceded the two residential lots were not comparable sales, leaving the Wal-Mart
tract as the only remaining comparable sale offered by the Harrisons. 
	In its first point of error, the State contends the trial court abused its discretion in
admitting evidence of noncomparable sales.  The trial court has great discretion in
determining whether sales offered in evidence are comparable to the land being taken, and
a ruling by the court that a prior sale is sufficiently similar and therefore admissible will not
be reviewed except to determine whether there has been an abuse of discretion.  Bridges
v. Trinity River Auth., 570 S.W.2d 50, 56 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.).  The
trial court abuses its discretion if it acts without reference to any guiding rules or principles. 
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  Comparable
sales are generally admissible unless it should appear that reasonable minds cannot differ
from the conclusion that the evidence of the other sale lacks probative force because of
its dissimilarity to the subject property.  Bridges, 570 S.W.2d at 56.
	After the concession made at oral argument, the only comparable sale to be
analyzed is the 11.302-acre tract located on U.S. Highway 271, which became the site of
a Wal-Mart department store.  The State contends this was not a comparable sale
because the tract was in the Gilmer business district and on U.S. 271, which the State
considers a busier and better road than S.H. 300.  The Harrisons point out, however, that
their property was only 300 to 400 yards from U.S. 271 and had easy access to that major
thoroughfare from either Pattonfield Road or Quail Lane.  Further, the Harrisons' property
was approximately 2,000 feet from two of the three major industries in the city of Gilmer
and less than a mile from the third.  We hold it was not an abuse of discretion for the trial
court to consider the 11.302-acre tract as comparable to the Harrisons' property.  This
point of error is overruled.
	The State also contends the trial court abused its discretion in admitting evidence
of the landowner's specific plans and intended use of the property.  In connection with the
landowner's testimony, the State further contends the trial court abused its discretion in
admitting evidence of a potential sale and in admitting evidence of the landowner's value
opinion which was based on an inadmissible remote sale.    
	In deciding market value, the jury is permitted to consider all of the uses to which
the property is reasonably adaptable and for which it is, or in all reasonable probability will
become, available within the foreseeable future.  State v. Windham, 837 S.W.2d 73, 77
(Tex. 1992).  Proof of the adaptability of land for certain purposes is admissible.  Kaufman
Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281, 288 (Tex. Civ. App.-Tyler 1975, writ
ref'd n.r.e.).  However, evidence of a landowner's subjective intent concerning the future
use of the property is inadmissible because it is too speculative and uncertain.  Id.  
	The State contends it was error to admit the parts of Mr. Harrison's testimony, and
that of his banker, Kenneth Stewart, where each discussed Mr. Harrison's plans, at the
time he and his wife purchased the property in 1980, to commercially develop that
property.  
	At the time of condemnation in 1996, the Harrisons were using the property for
grazing cattle, and the record shows no evidence of any steps taken by them to
commercially develop the property.  Because Mr. Harrison's intentions to develop the
property commercially were never acted on, and were therefore only subjective, his
testimony about such commercial development should not have been admitted.  If
Mr. Harrison could not testify to his subjective intentions, then a third party, his banker in
this case, could not do so either.  It was error to admit this testimony.
 The State also contends it was error to allow Doyle O'Neal, a realtor, to testify that
in 1995 he was hired by a client to find a location for a tank testing business and that the
best location he found for the business was the Harrisons' property.  O'Neal testified he
called Mr. Harrison and was told the property was for sale.  He further testified his client
was interested in the Harrisons' property for a tank testing facility.  
	The State contends evidence regarding a potential purchaser for commercial
industrial use was inadmissible, citing Hanks v. Gulf, Colo. & Santa Fe Ry. Co., 159 Tex.
311, 320 S.W.2d 333, 337 (1959), and State v. Clement, 252 S.W.2d 587, 588 (Tex. Civ.
App.-El Paso 1952, no writ). 
	The State is correct that unaccepted offers are not admissible as evidence of a
property's worth.  Clement, 252 S.W.2d at 588.  However, O'Neal's testimony was
evidence of the type of property involved in the condemnation, rather than specific
evidence of the property's worth.  The testimony showed the property as suitable for
commercial use, as contended by the Harrisons and their appraiser.  Therefore, it was not
error to allow O'Neal to testify about his recommendation of the Harrisons' property to his
client who was searching for a location for a tank testing facility.  Because O'Neal's
testimony was properly admitted, we find the error in admitting the testimony of
Mr. Harrison, and that of his banker, concerning Mr. Harrison's intentions to develop his
property commercially, was harmless.  Such testimony was harmless because it was
merely cumulative of the testimony given by O'Neal showing the property's potential for
commercial use.  This point of error is overruled.
	The State next contends the trial court abused its discretion by admitting evidence
of the landowner's value opinion, which was based on an inadmissible remote sale.  In the
first appeal of this case, this Court held in an unpublished opinion that Mr. Harrison's
testimony that his property was worth $12,000.00 per acre was "some evidence supporting
the findings of the jury," (2) but because his opinion concerning the value of his property was
based on a prior sale of that property that was remote in time, (3) we found his testimony
factually insufficient to support the jury's findings.  At this trial, Mr. Harrison again testified
he believed his property had a value of $12,000.00 per acre.
	Before expressing this opinion before the jury, the State conducted a voir dire
examination outside the jury's presence.  When questioned by the State at this sub rosa
hearing, Mr. Harrison testified his opinion that his property was worth $12,000.00 per acre
was based on a 1982 sale of a portion of his property:  
		Q.	As I understand it, it's your opinion that the 15.809 acres which
has been acquired by the State of Texas has a value of $12,000 per acre,
correct?

		A.	That's what I quoted, yes, ma'am.

		Q.	Okay.  That's your opinion, correct?

		A.	Yes, ma'am.
 
		Q.	And as I understand it, that opinion is based on the fact that
back in 1982 you sold some 7.7 acres to Mitchell Oil Company for $12,000
an acre, correct? 

		A.	Yes, ma'am. 

Yet, when Mr. Harrison was questioned by his own attorney outside the jury's presence,
he testified $12,000.00 was his asking price "right after I bought it" in 1980.  But, as the
State points out, when Mr. Harrison's attorney asked him, "Is  your opinion of the market
value of your property based solely on the fact that you actually sold some of it to Mitchell
Oil two years after you bought the property?" Mr. Harrison answered, "Yes."  
	When Mr. Harrison testified before the jury, he elaborated about how he arrived at
the $12,000.00 per acre value.  When asked, "[W]hat did you do to come up with what you
thought to be the market value?" Mr. Harrison answered, "Well, there's some property sold. 
Direct north there's a First National Bank, there's a half a block there, and I based it on that
partly, and that - that's where I come up with my decision."  Mr. Harrison agreed with his
counsel that he arrived at this valuation shortly after he bought the property in 1980. 
However, Mr. Harrison further testified that in his opinion the market value of his property
did not increase between the time he initially thought it was worth $12,000.00 per acre and
the time of the condemnation. 
	In the previous opinion, we held Mr. Harrison's valuation of his land was insufficient
to support the jury's findings because it was improperly based on a remote sale.  However,
at this trial, Mr. Harrison expanded his testimony to include the fact that he did not feel the
market value of his property had increased.  Therefore, although the origin of
Mr. Harrison's valuation of his property may have been based on a sale that is now remote,
his opinion of the value of his property at the time of the condemnation was based on his
opinion that the land had not increased in value. 
	Moreover, at another point in the trial, Mr. Harrison testified he was born and reared
in Gilmer, and returned to Gilmer after his military service in the 1940s.  He further testified
he had "invested in land and sold it" as a means of income.  It was reasonable for the jury
to infer that Mr. Harrison used his lifelong residency in Gilmer and his past experience in
investing and selling land as an additional basis for his valuation of his property.
	Generally, a property owner can testify to the market value of his or her property,
even if the owner could not qualify to testify about the value of similar property belonging
to someone else.  Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984).  Because the totality
of Mr. Harrison's testimony supports the inference that his opinion concerning the value of
his land was not based solely on a remote sale, we hold it was not an abuse of discretion
to permit him, as the landowner, to express that opinion before the jury.  The State's
contention to the contrary is overruled. 
	As its fourth point of error, the State contends the trial court erred in denying its
motion for mistrial based on counsel for the Harrisons improperly telling the jury the court
of appeals had approved the use of the comparable sales utilized by their appraiser.  The
following testimony, elicited from the Harrisons' appraiser by their counsel, was the basis
for the State's objection and request for mistrial:
		[MR. AMMERMAN (Harrisons' attorney)]:  Since Mr. Wendlandt [one
of State's counsel] thinks it important that I provided you these comparable
sales, I want you to explain to the jury fully and completely, in complete
detail, how I came to - what that involved.

		[MR. MANNING (appraiser)]:  Those sales apparently had been
utilized in a prior lawsuit, I guess, that they were used and had been
approved by the Court -

		MR. WENDLANDT:  Your Honor, I'm going to object to this.  This
completely mischaracterizes what occurred.  This gentleman is not qualified
as a lawyer.  And again, it mischaracterized what occurred with regards to
those sales.

		MR. AMMERMAN:  Judge, I didn't ask him - I didn't ask him -

		THE COURT:  I didn't understand the question.  I understand the
question is what involvement did you have in providing the comparables.

		MR. AMMERMAN:  What was his understanding when I gave him
those, what was the history.

		THE COURT:  I'm going to overrule the objection.

		[MR. MANNING]:  They came out of another appraiser's report that
had been approved by the courts and that he had utilized it in a prior lawsuit
on this particular case.  And all you did was give me those papers that had
been approved.

		[MR. AMMERMAN]:  By the Court of Appeals?

		[MR. MANNING]:  Yes, sir. 

	The State objected, and the trial court stated, "Well, I don't know whether it was
approved by the Court of Appeals or not.  I don't want to get into that, I don't want to put
any stamp of approval by some Court of Appeals."  When the State asked the jury to be
instructed about what to consider from the above testimony, the trial court instructed the
jury to limit the witness' testimony to how he got the comparable sales used in his appraisal
and to "[c]ompletely disregard any opinion by the Court of Appeals either up or down."  The
State did not request any further instructions.  
	The conduct of the Harrisons' counsel in suggesting that the sales used by their
appraiser had been approved by this Court was improper.  Nonetheless, the jury must be
presumed to have obeyed the instruction of the trial court.  Walker v. Tex. Employers' Ins.
Ass'n, 155 Tex. 617, 291 S.W.2d 298, 302 (1956).  A determination of whether the error
probably caused the rendition of an improper judgment by influencing the jury to return a
verdict it probably would not otherwise have returned is to be made from an examination
of the record as a whole.  Id. at 301.  We presume the jury obeyed the trial court's strong
admonition to "[c]ompletely disregard" whether the court of appeals had approved the
comparable sales, and in light of the record as a whole, we conclude it was not error for
the trial court to deny the State's motion for mistrial.  
	As its fifth point of error, the State contends the trial court erred in denying its motion
for judgment notwithstanding the verdict and its motion for new trial because there was no
evidence, or in the alternative, insufficient evidence to support the jury's answer to
Question No. 1, which asked, "From a preponderance of the evidence, what do you find
to be the Market Value of the 15.809 acres of the property owners' land, including
improvements thereon, condemned for highway purposes on the date of taking, May 2,
1996, considered as severed land?"  The jury answered $118,567.50. 
	When deciding a no-evidence point, we must consider all the evidence in the record
in the light most favorable to the party in whose favor the verdict has been rendered, and
we must apply every reasonable inference that could be made from the evidence in that
party's favor.  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  An
insufficiency point requires the reviewing court to consider and weigh all the evidence. 
State v. Ralph Watson Oil Co., 738 S.W.2d 25, 26 (Tex. App.-Texarkana 1987, writ
denied).  The testimony of the Harrisons' appraiser that the property in question had a
value of $152,191.00 and the testimony of Mr. Harrison, as the landowner, that his property
was worth $12,000.00 per acre provide sufficient evidence to support the jury's answer to
Question No. 1.  
	Even so, we must consider whether the testimony of the Harrisons' appraiser 
regarding the two residential lots was harmful error.  The Harrisons conceded at oral
argument the admission of this testimony was improper.  See Tex. R. App. P. 44.1(a)(1). 
The State contends this evidence probably did cause the rendition of an improper verdict
by the jury, arguing this evidence caused the jury to improperly value the Harrisons'
property as lots and not as an entire parcel.  
	Citing Lower Nueces River Water Supply District v. Collins, the State contends this
constitutes reversible error.  Lower Nueces River Water Supply Dist. v. Collins, 357 S.W.2d
449, 452 (Tex. Civ. App.-San Antonio 1962, writ ref'd n.r.e.).  One of the most hotly
contested issues in Collins was whether the land in question was capable of being
subdivided.  Id. at 451.  The landowners introduced plats which illustrated how their land
could be subdivided into lots; these plats were color coded to indicate the most desirable
lots.  Id.  All of the valuation testimony in Collins was based on subdividing the acreage as
illustrated by the plats.  Id. at 452.  The appeals court held the plats were inadmissible and
found their admittance to be reversible error.  Id.  
	When testifying about the two residential lots in this case, the Harrisons' appraiser
said one lot sold for $10,500.00 and the other sold for $10,400.00, and then answered
affirmatively when asked, "So if you look at Mr. Harrison's property and he divided the 15
acres up into one and a half acres, the price per acre would be 10,4 or 10,5 per acre?"
	The general rule in condemnation cases is that, when the property condemned is
raw acreage, it is improper to admit evidence of hypothetical, nonexistent subdivisions. 
Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 601 (Tex. App.-Fort Worth
1995, writ denied).  Therefore, it would be wrong to value the Harrisons' property according
to its worth as subdivided lots.  Yet, even though the Harrisons' appraiser answered
affirmatively to the above question, it was only a small part of his testimony.  In fact, he
ultimately testified the highest and best use for the property was either commercial or
industrial, not residential.  In light of the record as a whole, the testimony of the Harrisons'
appraiser concerning the two residential lots did not likely cause the rendition of an
improper verdict.  The jury's answer to Question No. 1 was substantially less than the fair
market value placed on the property by the Harrisons' appraiser.  The admission of his
testimony concerning the residential lots was therefore harmless error.
	We affirm the judgment.  

							Donald R. Ross
							Justice

Date Submitted:	December 12, 2002
Date Decided:	January 24, 2003
1. The 15.809 acres consisted of two tracts:  Part 1 was 13.843 acres, and Part 2 was
1.966 acres.
2. State v. Harrison, No. 06-98-00007-CV, 1998 Tex. App. LEXIS 7668 (Texarkana
Dec. 11, 1998, no pet.) (not designated for publication).
3. A 1982 sale to Mitchell Oil Company.


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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00111-CV
                                                ______________________________
 
 
                                    TIFFINEY COTTLEDGE,
Appellant
 
                                                                V.
 
               JAMES ROBERSON, D/B/A ROBERSONS REMODELING 
                                            AND ROOFING, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 134th
Judicial District Court
                                                             Dallas County, Texas
                                                          Trial Court
No. 10-13682
 
                                                                                                   
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                        Memorandum Opinion by Chief Justice Morriss




                                                      MEMORANDUM OPINION
 
            Tiffiney
Cottledge, appellant, filed her notice of appeal[1]
July 28, 2011.
 
            Cottledge is
not indigent.  Therefore, Cottledge is
responsible for payment of the clerks record, reporters record, and filing
fee.  See
Tex. R. App. P. app. C
(B)(1); 20.1.  
            The clerks
record was due on or before November 8, 2011. 
There is no information to indicate Cottledge has made efforts to have
the clerks record filed with this Court. 
Further, Cottledge has not paid the filing fee.  On December 8, 2011, we contacted Cottledge by
letter, giving her an opportunity to cure the various defects, and warning her that,
if we did not receive an adequate response within ten days, this appeal would
be subject to dismissal for want of prosecution.  See
Tex. R. App. P. 42.3(b), (c).
            We have
received no communication from Cottledge. 
Pursuant to Tex. R. App. P.
42.3(b), we dismiss this appeal for want of prosecution.
 
 
                                                                        Josh
R. Morriss, III
                                                                        Chief
Justice
 
Date Submitted:          January
4, 2012           
Date Decided:             January
5, 2012




[1]Originally
appealed to the Fifth Court of Appeals, this case was transferred to this Court
by the Texas Supreme Court pursuant to its docket equalization efforts.  See
Tex. Govt Code Ann. § 73.001 (West
2005).  We are unaware of any conflict
between precedent of the Twelfth Court of Appeals and that of this Court on any
relevant issue.  See Tex. R. App. P.
41.3.
 


