      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00069-CV



                                 The State of Texas, Appellant

                                                 v.

                               Lloyd S. McCarley et al., Appellee


           FROM COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
         NO. 03-0400-CC2-4, HONORABLE JOHN McMASTER, JUDGE PRESIDING



                                          OPINION


               The State of Texas appeals from a judgment in a statutory condemnation proceeding

awarding Lloyd McCarley $366,820 as just compensation for the State’s taking of 836 square feet

from his property for use in the Texas Department of Transportation’s construction of the State

Highway 45 toll road project. The judgment was based on a jury’s verdict on a single issue inquiring

as to the amount of damages. The jury awarded $371,000. The trial court credited the State’s prior

deposit of the amount of the special commissioner’s award in order to take possession—$4,180—to

yield the judgment amount.

               The State argues that the evidence is legally and factually insufficient to support the

jury’s damages award. At trial, McCarley presented proof that the State’s use of his property

severely diminished the value of his remainder by altering its drainage in a manner making it

impossible for him to meet the City of Austin’s requirements for obtaining the permits necessary to

develop it.   The State urges that such damages “do not arise from the condemnation of

the 836 square feet or to the uses which will be made by TxDOT of the 836 square feet
[but] arise from an alleged use of TxDOT’s existing right of way,” and, consequently, are not

compensable. See State v. Schmidt, 867 S.W.2d 769, 777-79 (Tex. 1993). Based on that same

premise, the State argues that McCarley has asserted only an inverse condemnation claim. See

Tex. Const. art. I, § 17; City of Austin v. Casiraghi, 656 S.W.2d 576, 579-80 (Tex. App.—Austin

1983, no pet.).1 It brings several issues challenging whether McCarley’s “inverse condemnation

claim” is ripe where the property has not actually flooded and McCarley has not applied for and been

denied a development permit, see Hubler v. City of Corpus Christi, 564 S.W.2d 816, 822-23

(Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.); whether McCarley properly pled and

proved the intent element of an inverse condemnation claim, see City of Dallas v. Jennings,

142 S.W.2d 310, 314 (Tex. 2004); and whether McCarley retained a justiciable interest in his

“inverse condemnation claim.”

               Because we conclude that the evidence was legally and factually sufficient to support

the jury’s award of $371,000 as damages for the State’s statutory condemnation of McCarley’s

property, we will affirm the trial court’s judgment.

               To address the State’s challenge to the jury’s damages award, we apply the familiar

standards of legal and factual sufficiency review.2         With each, the starting point of our


       1
          In apparent response to such arguments by the State prior to trial, McCarley asserted a
“conditional counterclaim in inverse condemnation,” pleading “[t]o the extent necessary . . . in
inverse condemnation for damages resulting from the drainage problems caused by the project.”
       2
          We sustain a legal sufficiency complaint if the record reveals: (a) the complete absence
of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more
than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact.
City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). The ultimate test for legal sufficiency
is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review. See id. at 827.


                                                  2
analysis—barring a preserved and valid complaint of charge error—is the charge actually submitted

to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003).(factual sufficiency); Ancira Enters., Inc.

v. Fischer, 178 S.W.3d 82, 93 (Tex. App.—Austin 2005, no pet.). The State brings no complaint

of charge error on appeal.

               The sole issue submitted to the jury inquired:


       On September 16, 2003 [the date the State took possession of the property], what was
       the difference between (a) the fair market value of the landowner’s whole property
       before the taking, excluding any consideration of the condemnation or proposed
       project and (b) the fair market value of the remainder only, after the taking, giving
       consideration to the uses to which the condemned part is to be subjected.

                                               * * *

       Answer by stating the difference in Fair Market Value in dollars and cents.




        When the evidence offered to prove a vital fact is so weak as to do no more than create a
mere surmise or suspicion of its existence, the evidence is less than a scintilla and, in legal effect,
is no evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). But more than
a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions. Id. We review the evidence in the light favorable
to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary
evidence unless reasonable jurors could not. See City of Keller, 168 S.W.3d at 807.

        When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact,
we must consider, weigh, and examine all of the evidence in the record, both supporting and against
the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
We should set aside the verdict only if the evidence that supports the jury finding is so weak as to
be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. The
jury remains the sole judge of witnesses’ credibility and the weight to be given their testimony.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

                                                  3
The jury was given the following definitions:


        “Fair Market Value” means the price which the property would bring when it is
        offered for sale by one who desires, but is not obligated to sell, and is bought by
        one who is under no necessity of buying it, taking into account all of the uses
        to which it is reasonably adaptable and for which it either is or in all
        reasonable probability will become available within a reasonable future period.
        In making your determination of Fair Market Value, you will consider the “Highest
        and Best Use” of the land involved.

        “Highest and Best Use” means that legal use to which the property could have been
        adapted on the date of taking, or within the reasonably foreseeable future thereafter
        which was legally permissible, physically possible, financially feasible, and provided
        the owner with the greatest net return.


The jury was thus instructed to calculate McCarley’s damages by comparing the fair market

value of his property before and after the taking, reflecting both the loss of the part taken plus

any diminution of the remainder’s value. See Westgate, Ltd. v. State, 843 S.W.2d 448, 456-57

(Tex. 1992) (explaining that this form of submission is appropriate in cases where the part taken

is difficult to value as severed land and there is no evidence that the condemnation increased

the remainder’s value).

                The charge further directed the jury that, when calculating these measures of fair

market value, its ultimate focus should be the price the property would have brought in a transaction

between a willing seller and willing buyer at the time. See City of Austin v. Cannizzo, 267 S.W.2d

808, 812-15 (Tex. 1954); State v. Carpenter, 89 S.W.2d 194, 200 (Tex. 1936). To that end, Texas

courts have long held it appropriate, as a general rule, for a jury to consider “all factors . . . which

would reasonably be given weight in negotiations between a seller and a buyer” of the property.



                                                   4
Cannizzo, 267 S.W.2d at 814; Carpenter, 89 S.W.2d at 200 (“Generally, it may be said that it is

proper as touching the matter of the value and depreciation in value to admit evidence upon all such

matters as suitability and adaptability, surroundings, conditions before and after, and

all circumstances which tend to increase or diminish the present market value.”). Thus, the jury may

consider current and reasonably probable future potential uses of the property, as well

as consequential damages that it is reasonably foreseeable will result from the condemnor’s uses of

the condemned property, as such factors would ordinarily be given weight by willing buyers and

sellers and, therefore, would be reflected in the property’s fair market value. See Spindor v. Lo-Vaca

Gathering Co., 529 S.W.2d 63, 65-66 (Tex. 1975); Cannizzo, 267 S.W.2d at 814-15. Conversely,

purely speculative potential uses or injuries are not probative of fair market value.                 Id.

at 814 (willing seller-willing buyer test of market value “exclude[s] consideration of purely

speculative uses to which the property might be adaptable but wholly unavailable but would permit

consideration of all uses to which the property was reasonable adaptable and for which, or in

reasonable probability would become, available within a reasonable time.”); Carpenter, 89 S.W.2d

at 200 (“Evidence . . . relating to remote, speculative, and conjectural uses, as well as injuries, which

are not reflected in the present market value of the property” should be excluded); see also Texas

Elec. Serv. Co. v. Campbell, 336 S.W.2d 742, 744-45 (Tex. 1960) (testimony that it was “possibly

probable” that town would later expand so as to make property suitable for industrial uses was not

probative of the property’s fair market value).3


        3
            As the supreme court has summarized these governing principles:

        It has been uniformly recognized in the development and refinement of the market

                                                   5
               These principles, in part, enable a landowner to recover all reasonably foreseeable

consequential damages from the taking in the statutory condemnation proceeding and not be

“burdened with the delay and expense of future lawsuits.” White v. Natural Gas Pipeline Co. of Am.,

444 S.W.2d 298, 301 (Tex. 1969). In fact, a landowner’s failure to seek all reasonably foreseeable

damages in the condemnation proceeding may bar his future claims for those damages.




       value test for determining severance damages that the State v. Carpenter method of
       trial and submission is appropriate in all but exceptional cases. The jury is instructed
       that the term market value is the price the property will bring when offered for sale
       by one who desires to sell, but is not obliged to sell, and is bought by one who desires
       to buy, but is under no necessity of buying. The jury is asked to find the market value
       of the remainder tract immediately before the taking and the market value
       thereof immediately after the taking. In the determination of the latter, the jury is
       instructed to take into consideration the uses to which the land taken is to be
       subjected. The answers to the issues are to be determined in the light of the evidence
       offered by the parties and admitted under the rulings of the trial court. As said in
       State v. Carpenter, everything which affects the market value of the land itself,
       having due regard for past and probable future injuries, may be accurately reflected
       by ascertaining the difference in value, when all the legitimate testimony is properly
       submitted to the jury for consideration; and it is proper to admit evidence upon all
       matters which tend to increase or diminish the present market value. The landowner
       may recover damages which are reasonably foreseeable, and he may show the
       reasonably probable uses of the tract taken that are calculated to depress the value of
       the remainder tract and thus enhance the recovery of damages. See Cannizzo, supra,
       where it was recognized that the determination of the value of a tract taken permits
       consideration of all uses to which the property was reasonably adaptable and for
       which it was, or in reasonable probability would become, available within a
       reasonable time. But the public authority should not be required to pay severance
       damages on the basis of uses of the tract taken which are not at the time of the taking
       so reasonably probable as to be reflected in present market value and the jury should
       be permitted to give such weight to this factor as a prospective purchaser of the
       remainder tract would give.

City of Pearland v. Alexander, 483 S.W.2d 244, 247-48 (Tex. 1972).

                                                  6
See City of La Grange v. Pierratt, 175 S.W.2d 243, 244-46 (Tex. 1943)4; see also Casiraghi,

656 S.W.2d at 579 (Tex. App.—Austin 1983, no pet.) (“In eminent domain proceedings the property

owner is given a single opportunity to recover damages for the taking of his property for public

use.”).

                The jury heard evidence that, at relevant times, McCarley had owned two adjacent

undeveloped lots totaling approximately 1.75 acres in size. One lot, approximately 1.0106 acres in

size, was situated at the corner of Ranch Road 620, a busy thoroughfare that ran generally east-west

at that location, and Lyndhurst Street, which ran generally north-south until it ended at its

intersection with 620. Both roads were originally at grade level. The second lot, roughly .7381 acres

in size, sat immediately south of the first lot, its east side fronting Lyndhurst. As of the date of

taking, the property was partially within the City of Austin, and the rest within the City’s

extraterritorial jurisdiction.

                McCarley presented evidence that although he had not yet developed the property,

he had previously performed extensive planning and permitting in anticipation of developing it




          4
          In Pierratt, the City condemned a portion of Pierratt’s service station property for use in
widening a road. Pierratt was awarded compensation in the statutory condemnation proceeding.
Subsequently, Pierratt sued for additional consequential damages, lost profits he attributed to loss
of access to his business during the road construction. The supreme court held that Pierratt’s suit
was barred. It concluded that Pierratt’s lost profits damages had been foreseeable at the time of the
statutory condemnation proceeding where “this record shows that Pierratt knew, or could have
known, the character of the street improvement at the time of the condemnation; and, furthermore,
at such time he knew, or could have known, the terms of the contract under which it was to be
consummated.” City of La Grange v. Pierratt, 175 S.W.2d 243, 246 (Tex. 1943). The court
further reasoned that because Pierratt “had such right [to recover his expected lost profits in
the condemnation proceeding . . . we think it follows, as a matter of course, that it was his
duty to do so.” Id. at 246.

                                                 7
for commercial uses. In 1996, McCarley hired a land planner, Richard Crank, and an engineer,

Curtis Wilson, to complete a subdivision of the property and obtain the necessary permits to develop

the site. Wilson obtained general retail zoning for the portion within the Austin city limits. Crank

prepared the necessary applications and obtained approval for a two-lot subdivision with a front-lot

retail development and rear-lot office development. Wilson engineered a utility plan for water and

wastewater service, which was approved, as well as a plan for stormwater abatement that was

approved by the Texas Natural Resource and Conservation Commission. Wilson also designed a

stormwater drainage and detention plan, which the City approved after requiring a restrictive

covenant requiring that the two lots would share water quality and stormwater detention facilities

and be developed only as a unified development. The City eventually granted full site plan approval

for development of the property.

               The jury heard evidence regarding the City of Austin’s requirements that McCarley

had to meet to obtain his site development permit. These included three forms of stormwater

management regulations: (1) environmental regulations requiring that the property have ponds that

would detain the rainwater falling onsite in a 2-year storm; (2) drainage criteria requiring

the property to have ponds designed to retain the rainwater falling onsite in a 100-year storm,

detain the water, and release it slowly at a rate no greater than the flow from the property’s

natural, pre-development state; and (3) requirements that the property be designed to receive all

stormwater from a 100-year storm that would flow to the property from its entire natural upstream

basin if the basin was fully developed, and pass it through the property contained in a dedicated




                                                 8
easement or public right-of-way. Wilson explained that he encountered some difficulties in

satisfying these requirements stemming from the area’s flat topography.

               Although the State emphasizes that McCarley’s site development permit had expired

before it condemned his property, evidence that McCarley had succeeded in obtaining one is

nonetheless probative of the reasonably foreseeable uses of McCarley’s property before it was

condemned. See Cannizzo, 267 S.W.2d at 814-15. McCarley’s appraiser testified that the two lots

constituted a single property for valuation purposes. He separately valued each lot in terms of their

respective pre-condemnation highest and best uses—the “front” lot retail, the “back” lot office—as

reflected in the market prices of comparable area properties with similar uses, adjusted for

characteristics unique to the McCarley property. Based on this analysis, the appraiser valued

McCarley’s front lot at $400,000 and the back lot $75,000, for a total of $475,000. The State’s

appraiser, by contrast, opined that only McCarley’s front lot should be considered as the relevant

property for valuation purposes. He valued this lot, pre-condemnation, at $246,523.

               The State condemned a 836 square-foot triangular “corner clip” from McCarley’s

front lot at the 620-Lyndhurst intersection. The property was to be used in TxDOT’s conversion of

part of 620 into the State Highway 45 toll road. Construction evidently was underway but not yet

completed by time of trial. TxDOT’s plans were to elevate the existing 620 roadway five to seven

feet on a solid retaining wall within the existing right-of-way along McCarley’s front lot. This road

would serve as a frontage road for Texas 45. Lyndhurst would similarly be elevated on an

embankment for several hundred feet to meet the new, higher frontage road at the site of the former

intersection with 620. According to the State’s engineering expert, the corner clip taken from



                                                 9
McCarley’s property would be used in building an embankment area needed to raise the roadways

and “to find a place maybe for utilities to make a bend and serve folks down Lyndhurst.”5 There was

also evidence that this embankment served purposes within TxDOT drainage system for Texas 45.

Wilson, McCarley’s engineering expert, testified that during a 100-year storm, TxDOT’s drainage

system would cause stormwater from properties west of McCarley’s to flow eastward through a ditch

running beside the Texas 45 frontage road and alongside McCarley’s property, where the Lyndhurst

embankment would effectively function as a dam and cause the waters to pool there and flood

McCarley’s property. The waters would continue to rise until they spilled over Lyndhurst.

               Although the State’s engineering expert disputed Wilson’s analysis—he insisted that

a 24-inch pipe TxDOT was laying under Lyndhurst would sufficiently drain any stormwater from

McCarley’s side of that street—there was evidence consistent with TxDOT’s anticipating that

McCarley’s property would flood. The State’s appraiser testified that TxDOT intended to build

concrete riprap in the corner clip area to prevent erosion at the Lyndhurst intersection. Also, during

its negotiations with McCarley, TxDOT had contemplated constructing an 18-inch reinforced

concrete pipe running from McCarley’s property and through the corner clip that would drain water

from McCarley’s property. Further, as another component of the Texas 45 project, TxDOT

designed and constructed a berm or wall near a school across Lyndhurst from McCarley’s property.

Wilson testified that the wall is located beyond where stormwater would overflow Lyndhurst

from McCarley’s property, adding that TxDOT had placed a concrete channel along the wall




       5
          The witness explained that “[a] lot of times they don’t like to do a 90 [degree turn] because
they get losses.”

                                                  10
that would divert stormwater toward a creek. TxDOT’s own plans, in fact, termed this structure

a “retaining wall.”

                The State’s engineering expert, who had oversight responsibilities during the design

phase of the Texas 45 project, testified that the “retaining wall” was actually intended to shield the

school from noise likely to come from the elevated main lanes of Texas 45, which were to be several

feet higher than the frontage roads. He explained that “[t]he plan sheets refer to it as a retaining wall

because we’re trying to help out the school and we can’t call it anything else because we’re not

meeting federal mandates” to obtain federal funding for a noise wall, adding that “I’m probably

going to get in a lot of trouble for saying that we built one anyway, but we did.” However, the

witness acknowledged that the agency had stopped short of “building a full blown, we’re going to

get in trouble, kind of sound wall,” and he could not say that it would be effective given that the

roadway was higher than the school. It was within the province of the jury to weigh the credibility

of the State’s explanations of its “retaining wall.”

                McCarley presented evidence that TxDOT’s use of the corner clip to elevate

roadways and in its drainage system have destroyed his ability to develop the remainder. Wilson

explained that to re-permit the remainder, McCarley would be required to satisfy the same City of

Austin stormwater management regulations that he had successfully met when obtaining his earlier

development permit. These requirements, again, included demonstrating that his property had been

designed to receive all stormwater from a 100-year storm that would flow to the property from its

entire natural upstream basin if the basin was fully developed, and pass it through the property

through a dedicated easement or public right-of-way. Wilson opined that McCarley no longer met



                                                   11
these requirements and that there was nothing McCarley could do to remedy noncompliance and

obtain a permit to develop the remainder or any part of it. The State did not controvert Wilson’s

testimony regarding McCarley’s ability to obtain the City of Austin permits required to develop his

remainder. See Cannizzo, 267 S.W.2d at 814-15 (explaining that evidence of reasonably probable

future changes in zoning of property may be probative of its uses and fair market value). The record

also reflects that the State was made aware, prior to trial, of McCarley’s concerns that its uses of the

corner clip would cause flooding and prevent development of his remainder. See Spindor,

529 S.W.2d 65-66 (damages to remainder from erosion of road in condemned portion was

foreseeable and could be recovered in statutory condemnation action; landowner testified that he

had warned condemnor that its road would erode in heavy rain); see also Pierratt, 175 S.W.2d at

244-46 (landowner was required to seek any foreseeable remainder damages in the statutory

condemnation proceeding).

               McCarley’s appraiser opined that the uses of the remainder to a willing buyer is

comparable to that of property with greatly restricted uses, like Christmas tree sales. He calculated

the remainder’s fair market value as $72,000. Subtracting this figure from the pre-condemnation fair

market value of McCarley’s property yielded total damages of $403,000. The State’s appraiser

calculated the value of the remainder (which did not include the back lot) as $241,841, yielding total

damages of $4,682. The State’s appraiser acknowledged, however, that his analysis presumed

McCarley’s ability to develop the remainder and that the remainder would not be worth much if

McCarley could not obtain the permits required to develop it. The jury’s damages award of

$371,000 is within this range of evidence presented.



                                                  12
                The State’s sole challenge to the sufficiency of the evidence supporting the jury’s

award is that any diminution in the value of McCarley’s remainder is not compensable because it

arose from the State’s use of its existing right-of-way along the former 620 and not its use of the

corner clip. See Schmidt, 867 S.W.2d at 777-79. We disagree. As the evidence we have surveyed

demonstrates, McCarley’s remainder damages arose from the use to which the State subjected the

corner clip—elevating roadways and controlling stormwater—and not merely the State’s use of

existing right of way or other property. See Interstate Northborough P’ship v. State, 66 S.W.3d 213,

221-22 (Tex. 2001) (landowner claimed that condemnation of property to widen freeway damaged

remainder by causing building on remainder to violate setback ordinances and deed restrictions;

damages were attributable to taking and not to entire highway expansion project); State v. Heal, 917

S.W.2d 6, 8 (Tex. 1996) (homeowner’s claim for remainder damages for decreased access from

taking of part of yard to widen road in manner creating bottleneck was distinguishable from claim

based on impact of larger project to widen nearby freeway and residential arteries); cf. County of

Bexar v. Santikos, 144 S.W.3d 455, 462-63 (2004) (damages for lessened access and visibility were

attributable to State’s elevation of roadway within existing right-of-way, not construction of

embankment on condemned property to support elevated roadway; “the remainder property would

be just as much ‘in a hole’ and no easier to access if the frontage road were supported by a wall or

columns rather than a sloping shoulder”); Schmidt, 867 S.W.2d at 777-79 (claimed damages for

diversion of traffic, circuity of travel, impaired visibility, and inconvenience from construction were

attributable to overall project, not taking of small strips from property). We also note that the charge,

in relevant part, inquired as to “the fair market value of the remainder only, after the taking, giving



                                                   13
consideration to the uses to which the condemned part is to be subjected,” but did not require the

jury to isolate the effect of the corner clip’s uses to elevate roadways or control stormwater from that

of other adjacent property devoted to the same uses. If there is any error in the form of that

submission, it is waived. See Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); Crown Life

Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). We overrule the State’s evidentiary-sufficiency

challenge to the jury’s award of $371,000 as damages from the statutory condemnation of

McCarley’s property.

                In light of this conclusion, we need not address the State’s issues presuming that

McCarley’s damages are recoverable only under an inverse condemnation theory, and we express

no opinion regarding them.

                We affirm the trial court’s judgment.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton
  Concurring Opinion by Justice Patterson

Affirmed

Filed: December 20, 2007




                                                  14
