




cv0-172                                                             



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 


NO. 3-90-172-CV



STATE OF TEXAS AND CITY OF AUSTIN,

	APPELLANTS

vs.


AUSTEX, LTD., ET AL.,

	APPELLEES


 


FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. 1669, HONORABLE MICHAEL J. SCHLESS, JUDGE PRESIDING

 


	The trial-court judgment awards Austex, Ltd. and
Cavendish Holdings, Ltd. damages in a statutory eminent-domain
proceeding initiated by the State and the City of Austin.  The
State and the City appeal.  We will affirm the trial-court
judgment.  For convenience we will refer to the parties as the
State and Austex, omitting mention of the other parties.


THE CONTROVERSY
	Austex owns 3.76 acres of land located on the northwest
corner of U.S. Highway 183 and Fairfield Drive in Austin.  (See
attached drawing.)  There is on the tract a retail complex known as
the "Town North Shopping Center."  Presently, the Town North
Shopping Center is directly accessible, via several driveways, from
the northbound lanes of Highway 183, from Fairfield Drive, and,
indirectly, from Ohlen Road through the neighboring Target lot.
	The State plans to raise the main lanes of Highway 183
approximately 37 feet above ground, converting the thoroughfare to
a controlled-access highway, with ramps connecting the elevated
main traffic lanes to parallel frontage roads on either side. 
After completion of the project, the Austex tract will abut the
northbound frontage road.  As a result, automobile traffic on the
main traffic lanes will have only indirect access, via the ramps
and frontage roads, to and from the Austex tract.  
	In order to comply with state and federal regulations,
the State was required to expand its existing right-of-way by 6-2/3
feet onto the Austex property, taking a strip of 1,275 square feet
of that tract as indicated in the drawing.  To acquire the narrow
strip and to fix the damages payable therefor, the State brought
the present statutory cause of action in eminent domain.  Tex.
Prop. Code Ann. §§ 21.001-.065 (1984 & Supp. 1991).  
	The jury fixed the damages at $18,932, for the fair
market value of the land taken, together with $200,000 for the
reduction in the fair market value of the remaining part of the
tract.  The trial court rendered judgment accordingly and the State
appeals.  


EVIDENCE OF NON-COMPENSABLE "PROPERTY" INTERESTS
	At trial, Austex adduced the testimony of an expert
witness who gave his opinion that the State's modification of the
highway would reduce the fair market value of that part of the
Austex tract from which the narrow strip would be severed.  He
explained his opinion as follows:  the elevation of the main
traffic lanes would obscure the shopping center from the view of
travellers in those lanes; the plan would re-route automobile
traffic from the ground-level streets to the elevated lanes,
resulting in less traffic at grade and more indirect communication
between the remainder of the parcel and the main traffic lanes; and
the construction activity required by the project would impose upon
the remainder of the tract various inconveniences.
	In points of error one through four and six, the State
complains the trial court erred when it admitted, over objection,
the explanatory testimony given by the witness regarding the
various factors mentioned.  The State reasons as follows:  (1) an
owner of real property has no "property" right in such intangible
incidents of ownership as "visibility" and existing traffic volume
or patterns, and cannot, in consequence, recover damages when they
are altered; (2) while a greater circuity of travel may
occasionally reach the level of a compensable injury, this is true
only when it is determined that there exists a "material and
substantial" impairment of the owner's "access" to and from his
tract, which Austex failed to establish in the present cause; and
(3) any injurious effect attributable to the temporary construction
activities or the planned work as a whole amounted to "community
damages," and is not legally compensable in an eminent-domain
proceeding.
	Austex did not adduce the evidence on a theory that
traffic pattern and volume, "visibility," and such amounted to
independent items of incorporeal property taken or damaged in the
condemnation along with the physical land described in the State's
petition, entitling Austex to additional compensation by reason of
their status as "property."  Instead, Austex adduced the evidence
on a theory that it established an adverse "effect of the
condemnation on the value of [Austex's] remaining property," in the
words of § 21.042(c) of the Property Code, Tex. Prop. Code Ann.
§ 21.042(c) (1984) (emphasis added).  That statute applies when a
part only of an owner's real property is taken by condemnation and
thereby severed from his remaining property.  The statute requires
that in such cases an estimate be made of the extent of any injury
and benefit accruing to the remaining property, by reason of the
condemnation, and that this effect enter into the calculation of
the owner's damages.  
	We considered these matters at length in State of Texas
and City of Austin v. Robert M. Schmidt, et al., No. 3-90-154-CV,
Tex. App. -- Austin, February 13, 1991, writ filed (not yet
reported), in which we handed down an opinion after the present
cause was submitted.  In Schmidt, we attempted to consider,
categorize, and harmonize the many judicial opinions bearing on
these vexing distinctions, and we concluded that such evidence was
admissible when offered to show the "effect of the condemnation on
the value of the owner's remaining property."  § 21.042(c).  The
same issues are raised here.  We adhere to Schmidt and overrule the
State's points of error one through four and six, which relate to
the claimed inadmissibility of the witness's testimony referring to
loss of visibility, re-routing of automobile traffic, reduction of
traffic volume, and the temporary inconvenience attributable to
construction activities.  We also overrule, on the same basis, the
State's points of error contending that the trial court erred when
it failed to instruct the jury regarding such evidence. (1)


EVIDENCE OF AN UNACCEPTED OFFER TO SELL
	Austex's expert witness was also permitted to testify
that he considered, in arriving at his opinion, that Austex had
entered into a listing agreement with a broker, in 1988, in which
Austex had agreed to sell its property for $1,500,000 on specified
terms.  The trial court admitted the testimony over the State's
objection that the listing agreement was no more than an unaccepted
offer to sell the property and evidence of it was not admissible
for any purpose.  In its fifth and thirteenth points of error, the
State complains the trial court erred in overruling the objection
and in refusing to instruct the jury that unaccepted offers to sell
real estate are not admissible to prove damages.
	We need not consider whether admission of the testimony
was reversible error. The State subsequently introduced the listing
agreement in evidence for the stated purpose of impeaching the same
witness on a different issue, without requesting a limiting
instruction that the jury consider the agreement for impeachment
purposes alone. (2) The contents of the listing agreement were
substantially the same as the contents attributed to the agreement
by the witness in his testimony.  Any error in the admission of
testimony is rendered harmless if the objecting party subsequently
permits the same or similar evidence to be introduced without
objection.  Slayden v. Palmo, 194 S.W. 1103, 1104 (Tex. 1917); City
of San Antonio v. Vela, 762 S.W.2d 314, 317-18 (Tex. App. 1988,
writ denied); New Hampshire F. Ins. Co. v. Plainsman Elevators,
Inc., 371 S.W.2d 68, 72 (Tex. Civ. App. 1963, writ ref'd n.r.e.). 
We hold accordingly and overrule the State's fifth and thirteenth
points of error.


COMMENT ON THE WEIGHT OF THE EVIDENCE
	In its fourteenth point of error, the State contends the
phrasing of the second jury question constituted a comment on the
weight of the evidence in violation of Tex. R. Civ. P. Ann. 277
(Supp. 1991).  The question stated as follows:


What was the decrease, if any, in fair market value of
the [remainder of the tract], as improved, immediately
after the condemnation . . . , taking into consideration
the effect of the condemnation on the value of the
remaining property?


	The State contends, as it did at trial, that this form of
the question constituted a comment on the weight of the evidence
because it assumed some effect on the remainder by reason of the
condemnation.  The omission does not justify reversal of the
judgment, however, unless the charge as a whole influenced the
jurors' minds on the controlling element of the interrogatory--whether the condemnation caused a decrease in the market value of
the remaining part of the tract.  Texas Employers Ins. Ass'n v.
McKay, 210 S.W.2d 147, 148-49 (Tex. 1948); Russell v. Great
American Indemnity Co., 94 S.W.2d 409, 410 (Tex. 1936).
	We conclude the phrasing of the issue constituted an
incidental comment because it assumed the condemnation had some
effect on the remainder.  The assumption did not imply, however,
that there was some decrease in the market value of the remainder--the controlling element of the question.  The assumption was
neutral on that element.  We hold, in consequence, that the
erroneous assumption did not amount "to such a denial of [the
State's] rights as was reasonably calculated to cause and probably
did cause rendition of an improper judgment."  Tex. R. App. P. Ann.
81 (Pamph. 1990); McKay, 210 S.W.2d at 149.  We overrule the
State's fourteenth point of error.
	The State relies upon Uehlinger v. State, 387 S.W.2d 427
(Tex. Civ. App. 1965, writ ref'd n.r.e.).  Uehlinger is
distinguishable because the erroneous assumption in that case
referred directly to the controlling element of the interrogatory. (3)

HEARSAY INSTRUCTION
	The expert witness further explained his opinion by
reference to his use of the "comparable market approach" as a
method of estimating the market value of property.  In explaining
his use of this "approach," the witness testified that his opinion
was based in part upon the hearsay reports of owners of commercial
property adjacent to other elevated, controlled-access highways
similar to that planned by the State for Highway 183.  These
reports related that these commercial properties had sustained
reduced occupancy rates and rental incomes after completion of the
similar projects, which, in turn, reduced the marketability and
market value of these properties.
	At the close of the evidence, the State requested that
the jury be instructed as follows:


The facts or data upon which an expert bases his or her
opinions may be those perceived by or made known to him
at or before trial.  If of a type reasonably relied upon
by experts in the field, the facts or data need not be
admissible in evidence.

"Hearsay" is a statement, other than one made by the
declarant, while testifying at the trial, offered in
evidence to prove the truth of the matter asserted.

Hearsay statements are not ordinarily admissible in
evidence but certain hearsay information is sometimes
relied upon by experts in forming opinions.  Such
information is not evidence of the facts contained
therein but may only be considered as it bears on the
expert's opinion.


The trial court refused to give the foregoing instruction.  In its
eighth point of error, the State contends the court erred in that
regard.
	The terms of Tex. R. Civ. P. Ann. 277 provide that the
trial court "shall submit such instructions and definitions as
shall be proper to enable the jury to render a verdict."  This
"rule places no additional requirement upon the trial judge in
preparing his charge."  Johnson v. Zurich General Accident &
Liability Ins. Co., 205 S.W.2d 353, 354 (Tex. 1947).  The effect of
the rule is rather to permit instructions on the law, thereby
precluding reversal of trial-court judgments on the ground that
such instructions "constituted general charges not permissible in
cases tried on special issues."  Zurich General, 205 S.W.2d at 353.
	In Zurich General, a party requested that the trial court
instruct the jury "that any fact before you may be established by
circumstantial evidence or direct evidence, or both."  After
discussing the meaning of Rule 277, the supreme court stated:


A holding that a trial court must give a charge on that
question of law would logically be followed by holdings
that charges of similar character with respect to many
other questions of law should also be given.  Such
practice would be out of harmony with the purposes of
trials on special issues.


Zurich General, 205 S.W.2d at 353-54.  
	In the present cause, the charge gave only three special
instructions.  Each defined a term used in the charge: 
"preponderance of the evidence," "fair market value," and "highest
and best use."  The charge submitted to the jury contained only two
questions.  The first inquired as to the fair market value of the
strip taken; the second inquired as to any decrease in the fair
market value of the land remaining.  Because the two jury questions
were confined to the fair market value of the land involved in this
particular litigation, we cannot see how the jury could fail to
understand that the hearsay reports of other owners, about their
properties in other locations, were simply factors that the witness
considered as he attempted to arrive at an informed estimate and
opinion concerning the land involved in the present litigation.  We
therefore hold the trial court did not abuse its discretion in
refusing to give the instruction.  See Mobil Chemical Company v.
Bell, 517 S.W.2d 245, 256 (Tex. 1974); Johnson v. Whitehurst, 652
S.W.2d 441, 447 (Tex. App. 1983, writ ref'd n.r.e.); Steinberger v.
Archer County, 621 S.W.2d 838, 841 (Tex. App. 1981, no writ); see
generally, 3 McDonald, Texas Civil Practice § 12.14.2, at 270-274
(rev. ed. 1983).  The State's eighth point of error is overruled. 

REMAINING POINTS OF ERROR
	In its sixteenth and seventeenth points of error, the
State complains the trial court erred in failing to disregard the
jury's finding on the decrease in value of the remaining property
and in failing to enter a judgment notwithstanding the verdict
because there was "no support in the admissible evidence" or,
alternatively, "the evidence was insufficient to support" the
jury's finding.  These points are contingent on our holding that
the trial court erroneously admitted evidence discussed above.  We
therefore overrule the points of error.
	In its eighteenth point of error, the State contends the
cumulative effect of all the error in the trial court deprived it
of a fair trial.  In light of our holdings above, we overrule the
point of error.
	We affirm the trial-court judgment.


  
					John Powers, Justice
[Before Justices Powers, Jones and Kidd]
Affirmed
Filed:  June 12, 1991
[Do Not Publish]
1.        In points of error seven, nine through twelve, and fifteen,
the State contends the trial court erred by failing to give and by
not permitting the condemnor's counsel to argue to the jury various
instructions limiting the jury's consideration of evidence of
certain of the above-mentioned factors and prohibiting altogether
their consideration of evidence of other items and lost business
profits.  We overrule the points of error for the reasons stated in
Schmidt.
2.        When a party objects to certain testimony and the objection
is overruled, he is entitled to treat the court's ruling as "the
law of the trial" and to explain or rebut the evidence which has
been admitted in spite of his objection.  The objecting party will
not waive error simply by later cross-examining the witness about
the testimony to which he previously objected.  McCormick, The Law
of Evidence, § 55, at 129-30 (1954).  The present situation,
however, is not one in which the State introduced the listing
agreement in order to explain or rebut the testimony of Austex's
expert witness regarding the existence and contents of the listing
agreement.  Although the record is not clear on the matter, the
State seems to have offered the listing agreement into evidence in
order to impeach Austex's appraisal witness on a statement he had
made during his direct examination declaring the value of the
Austex property to be $2.1 million, not considering the effect of
the condemnation on the property.  
3.        In Uehlinger, the trial court instructed the jury, as
follows, concerning their consideration of the market value of
3.1714 acres taken in condemnation:

You are instructed that in determining the market
value of the [land] taken for highway construction
you shall not take into consideration the increased
value of said [land] due to such highway
construction.

The instruction referred directly and expressly, of course, to the
jurors' calculation of the market value of the land taken, as the
court attempted to preclude their improper consideration of
enhancement attributable to the project itself.
