Opinion
14-19-00998-CV
02-17-2022
FORT BEND COUNTY, TEXAS, Appellant v. JAMES ALLEN WILLIAMS, PATRICIA A. WILLIAMS, Appellees
On Appeal from the County Court at Law No. 1 Fort Bend County, Texas Trial Court Cause No. 16-CCV-058303
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
MEMORANDUM OPINION
KEN WISE, JUSTICE
This is an eminent domain proceeding wherein Fort Bend County condemned a portion of land owned by appellees James Allen Williams and Patricia A. Williams. Following a jury trial, the trial court rendered judgment and awarded appellees $180,000 in damages to the remainder of their property.Appellant Fort Bend County appeals this portion of the judgment contending that this court should reverse the damages awarded for the remainder property. We affirm.
The jury also awarded appellees $65,502 for the fee taking and $7,682 for the easement taking. Neither of these awards are at issue on appeal.
I. Sufficiency of the Evidence
Appellant argues that appellees failed to satisfy their burden to prove that their damages fell within the Schmidt exception to the Campbell rule, and that the Campbell rule bars their claim for damages. See Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115 (1924); State v. Schmidt, 867 S.W.2d 769, 777-78 (Tex. 1993). Appellees argue that neither Campbell nor Schmidt apply to their claim of damages to the remainder property. Appellees argue that their damages to construct the barrier wall are "special damages" rather than "proximity damages shared by the community" which are "clearly compensable in eminent domain actions."
A. General Legal Principles
"The Texas Constitution requires governmental entities to compensate landowners adequately when property is taken for public use." County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004). "If a governmental entity condemns only part of a tract, adequate compensation is required for both the part taken and any resulting damage to the remainder." Id. "Damages to remainder property are generally calculated by the difference between the market value of the remainder property immediately before and after the condemnation, considering the nature of any improvements and the use of the land taken." Id. In addition, the governmental entity must pay for special repair and mitigation costs that would not be reflected in the lost market value. Id.
However, not all damages to remainder property are compensable. Id. Whether damages are recoverable depends on what kind of damage is involved. Id. Section 21.042 of the Property Code allows recovery only for the effects of the State's use of the condemned land on the value of the remainder property. See Tex. Prop Code §21.042; see also Interstate Northborough P'Ship v. State, 66 S.W.3d 213, 218 (Tex. 2001).
Generally, a party cannot obtain damages to their remainder property based upon the State's use of an existing right-of-way or adjoining land condemned from neighboring properties. See Interstate Northborough P'Ship, 66 S.W.3d at 218; Schmidt, 867 S.W.2d at 777-78. "Campbell held that compensation for a taking should not include damages to the remainder caused by the acquisition and use of adjoining property." State v. Heal, 917 S.W.2d 6, 8 (Tex. 1996). The Campbell rule applies unless:
(1) the land taken from the condemnee landowner was indispensable to the ... project; (2) the land taken constituted a substantial (not inconsequential) part of the tract devoted to the project; and (3) the damages resulting to the land not taken from the use of the land taken were inseparable from those to the same land flowing from the condemnor government's use of its adjoining land in the ... project.Schmidt, 867 S.W.2d at 778 (quoting United States v. 15.65 Acres of Land, 689 F.2d 1329, 1332 (9th Cir.1982)).
In considering a landowner's damages, then, "only the diminution in value of the remainder caused by taking" the square footage of the landowner's property is considered and "not the diminution caused by the . . . project as a whole, unless the qualification is met." Heal, 917 S.W.2d at 8. Claims seeking damages "merely for increased traffic, increased noise, and the overall impact" would be precluded under Campbell. Id. However, where a party seeks damages for "the diminution in value of their property caused by" an injury peculiar to the landowner's property, Campbell cannot be said to apply per se. See id. (Campbell rule did not apply to landowner's claim for damages regarding impaired access to property from increased traffic contributing to "bottleneck;" such claim was compensable special damage, not non-compensable community injury).
Another limitation on compensability of remainder damages is that the injury must be peculiar to the owner of the taken land rather than an injury experienced in common with the general community. See Tex. Prop. Code § 21.042(d); Santikos, 144 S.W.3d at 463. The Campbell rule and the community-damage rule are two distinct reasons for concluding that particular remainder damages are not compensable. State v. Colonia Tepeyac, Ltd., 391 S.W.3d 563, 569 (Tex. App.-Dallas 2012, no pet.).
Curing an unsafe condition created by the use of the condemned property may be compensable. See Interstate Northborough P'ship, 66 S.W.3d at 224 (holding cost of rearranging remaining driveways to ensure safe access to remaining property was compensable, but lost driveways were not compensable); see also State v. Centennial Mortg. Corp, 867 S.W.2d 783, 784 (Tex. 1993) ("Damages due to required modifications to the remainder, as a result of the condemnation, or damages due to a loss of improvements on the remainder because of the condemnation may, on a proper showing, be compensable.").
B. Background
Appellant condemned 7, 404 square feet for the construction of a road, the project known as the Cane Island Parkway (Road). The condemnation consisted of most of appellees' eastern property line. Appellant condemned a second tract of 5, 121 square feet for a county storm sewer easement which provides drainage for the Road. The total condemned portion of appellees' property was 12, 525 square feet. The four-lane Road runs alongside appellees' remainder property, partly on the portion of land taken from appellees. A section adjacent to appellees' property is a ramp which elevates the road by several feet. The Road was also built higher than appellees' property by approximately four feet.
At the time of trial the Road only had two lanes.
Appellees adduced testimony that prior to the acquisition, the property had views of open pastures. Appellees' expert witness testified that "although [the property] is in a densely developed area, [it] has a rural type setting. . . . [with] a very nice esthetic beauty and . . . privacy." The expert testified that after the Road there would be a "fundamental change in the locational characteristics of the site . . . [that] altered the quality . . . safety, privacy of . . . this residence after the taking" because of the Road's close proximity. The expert testified that he believed the barrier wall installed by appellees was "necessary to install . . . based on [his] analysis of the market that properties of this caliber . . . need for esthetic privacy and safety would require a retaining wall of some sort to help mitigate damages." The expert's opinion was that the remainder property has been permanently damaged even with a wall in place. The expert testified that he reviewed the county appraiser's report that indicated a barrier wall would be necessary on the appellees' property. The expert testified that "with this type of orientation to the roadway after the taking, that [the remainder] would require a barrier wall of some form or fashion; and in this instance, I was provided with a cost estimate by . . . a fence builder to . . . provide a concrete panel fence that's 10 foot tall." The expert testified that building a ten-foot privacy barrier helped to mitigate the damages from the taking, provided privacy and some safety to the residents, but that damages still "persist based on my evidence supported in the market." The expert testified that the damage to the remainder was "due to the proximity . . . we have an overpass that . . . comes at the north end of the property which is special and unique to this property, unlike any other property. Then, you have, also, the esthetics, safety, proximity. All of those things."
Appellee Alan Williams testified that he is "very concerned" about cars coming off of the road into his remaining property because his children and grandchildren often use the backyard which is now near the Road. He testified that the elevated overpass, noise issues, trash, and potential safety issue damaged his remainder property. He testified that the Road next to his property is elevated approximately four feet higher than his remaining land. He had a nine-foot fence built to obstruct the vehicles and their lights from shining into his property at night. Appellee testified that the ramp to the overpass bridge was on his former property that was condemned by appellant.
Appellee testified that his name is misspelled in the pleadings.
Appellees argued that the Road "destroyed" the peaceful country setting that they had prior to the Road being built and, as a result, damaged the remainder property. Appellees further sought damages to the remainder for the lights from the Road shining into their home at night and the safety concerns of cars exiting the Road and entering their property. Appellees' evidence showed that the light pollution and safety concerns were special to their remaining property because the ramp built on their condemned property caused vehicles to be elevated along their property line. Further, because of the ramp and curve in the Road, appellees evidence showed that this section of the Road presented a safety concern which a barrier wall would help to mitigate and cure.
The trial court submitted the following instruction and question of damages to appellees' remainder property:
You are instructed that in determining the market value of the Williams' Remainder Property, consisting of 5.3634 acres after the County's taking of 0.2876 of an acre, you shall base your determination on the market value of the Remainder Property, considering the effects, if any, that the taking may have had on the market value of the Williams Remainder Property after the taking.
What do you find is the difference between the market value of the 5.651 acre tract owned by [appellees] before [appellant's] taking on February 2, 2017, and the market value of their remaining property after the taking?
Additional Instructions:
In considering damages to the Remainder, if any, you may consider mitigation costs, such as cost to cure.
You are instructed that in estimating injury or damage to the Remainder, you shall only consider diminution in value of the Remainder caused by the acquisition an use of adjoining lands of others for the same undertaking if [:]
(1) The land taken was indispensable to the Cane Island Parkway project; and
(2) The land taken constituted a substantial (not inconsequential) part of the tract devoted to the Cane Island Parkway project; and
(3) The damages resulting to the land not taken from the use of the land taken were inseparable from those to the same land flowing from the condemnor/government's use of the adjoining land in the Cane Island Parkway project.
In estimating injury or benefit to the Remainder, you shall consider only an injury or benefit that is peculiar to the Landowner and that relates to the Landowner's ownership, use or enjoyment of the particular parcel of real property owned by the Landowner, but you shall not consider an injury or benefit that the Landowner experiences in common with the general community. (Emphasis added).
C. Analysis
We agree with appellees that they provided evidence and submitted a question to the jury on the damages caused to the remainder due to the condemnation of their property, as opposed to damages as a result of the project as a whole. Specifically, appellees contended that the barrier wall was a necessary modification to address the partial taking of their property which created an unsafe condition. See Interstate Northborough P'ship, 66 S.W.3d at 220; Heal, 917 S.W.2d at 8 ("[The Landowners'] damages, then, only the diminution in value of the remainder caused by taking 436 square feet of their property is considered, not the diminution caused by the Central Expressway project as a whole, unless the qualification [of Schmidt] is met."); Dallas County v. Crestview Corners Car Wash, 370 S.W.3d 25, 38-39 (Tex. App.-Dallas 2012, pet. denied) ("Crestview presented evidence that the remainder was damaged because the . . . . road construction on the part taken would create an unsafe condition on the remainder that required Crestview to remove and later reinstall the underground storage tanks. . . . These types of claimed damages are all damages to the remainder that have been allowed in condemnation cases.").
Appellees installed a barrier wall to mitigate the safety concerns that vehicles travelling southbound from the ramp toward appellees' remaining property may stray into appellees' backyard and cause injury to their property or appellees' family. Appellees' expert testified that the concerns were unique to appellees' property because of how the road traversed next to their remaining property, due to the proximity, the slope, the curve, and the ramp, all of which were located on appellees' condemned property. Additionally, appellees presented evidence that their view from the remainder property diminished the value of the remainder. See Butler v. State, 973 S.W.2d 749, 757 (Tex. App.-Austin 1998, pet. denied) ("[A]s to evidence concerning the view from the remainder we hold that the trial court erred in excluding such evidence. Evidence concerning the aesthetic view from the remainder is clearly not a Schmidt factor; it is a compensable element of damage to the remainder that the landowner is entitled to present to the jury."); see also Interstate Northborough P'Ship, 66 S.W.3d at 224 (loss of lot's aesthetic aspects or "curb appeal" were compensable because such damages were "peculiar" to that property).
Appellees presented evidence of the damages to their remainder property that resulted from the use of appellees' condemned land as opposed to presenting solely evidence that their damages were caused by the use of adjoining properties or the project as a whole. See Heal, 917 S.W.2d at 8 ("Campbell held that compensation for a taking should not include damages to the remainder caused by the acquisition and use of adjoining property. . . . In considering the Heals' damages, then, only the diminution in value of the remainder caused by taking 436 square feet of their property is considered, not the diminution caused by the Central Expressway project as a whole, unless the qualification [of Schmidt] is met.").
Appellant argues that there is no evidence or insufficient evidence to support the jury's award of damages but does not demonstrate how or why the evidence presented failed to meet the requirements of the Property Code for an award of damages to the remainder. As a result, appellant does not challenge whether the evidence supports the jury's award under the Property Code and only challenges the jury's award under the Schmidt exception.
When damages are presented to the jury in broad form at trial, as it was here, a party must address all of the elements of damages on appeal and show the evidence was insufficient to support the entire award. See Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 852 (Tex. App.-Dallas 2013, no pet.) ("Each question was in broad form, meaning the jury was given a single blank to fill in, followed by the instruction, 'In determining the amount of damages, you may consider the following,' followed by a list of various categories of personal-injury damages."); Tex. Youth Comm'n v. Koustoubardis, 378 S.W.3d 497, 501 (Tex. App.-Dallas 2012, no pet.) ("To challenge multi-element damage award, a party must address all of the elements of damages and show the evidence was insufficient to support the entire award."). Here, the jury was asked whether there was a difference in the value to the remainder before and after the condemnation and instructed to consider: (1) the difference in value to the remainder due to the taking, (2) mitigation costs, (3) damages to the remainder based on appellant's use of adjoining land, but only if the Schmidt exception was met, and (4) only an injury "peculiar" to that property, as opposed to general community damages.
Because appellant did not challenge that appellees were entitled to damages for the difference in value to the remainder due to the taking and only challenged that appellees were not entitled to damages based on the use of adjoining land, appellant's legal sufficiency challenge fails. See Hooper, 401 S.W.3d at 852.
Appellant argues in its reply brief that appellees have waived their argument that the Campbell rule and Schmidt exception do not apply in this case because they did not object to the jury charge containing jury instructions regarding these doctrines. For the reasons stated above, we find this contention without merit. Appellees could and did seek damages to their property due to the project as a whole (Campbell/Schmidt damages) as well as damages to the remainder due to the condemnation of their own property. Thus, a jury instruction on the Campbell rule and Schmidt exception would not preclude an award of damages under the Property Code.
We overrule appellant's first issue.
II. Jury Charge
Appellant argues that the trial court erred in submitting question three to the jury because "it would have been proper to direct or instruct a verdict on the question" because appellees failed to meet the Schmidt exception. However, as detailed above, appellees were not limited to damages solely under Campbell and Schmidt. Appellant moved for a partial directed verdict on this ground and objected to question three being submitted to the jury, arguing that the appellees had to prove the Schmidt exception to be entitled to any award under question three. As detailed above, this is an incorrect statement of the law. The trial court denied appellant's motion and overruled appellant's objection. After the jury returned a verdict awarding appellees damages, appellant moved for a judgment notwithstanding the verdict again arguing that the trial court should not have submitted question three. The trial court overruled appellant's motion and rendered judgment on the jury's verdict.
In its brief appellant fails to cite any legal authority to support its argument that the trial court erred in submitting the question to the jury. Appellant fails to provide legal authority regarding whether the error, if any, is harmful and requires reversal, what the standard of the review is, and how we should analyze any relevant case law to conclude the trial court erred. Because appellant does not provide any analysis or legal authority on how the submission of the question was erroneous and whether such error, if any, was harmful, we conclude it has waived the issue on appeal for inadequate briefing. See Tex. R. App. P. 38.1.
We overrule appellant's second issue.
III. Conclusion
Having overruled both of appellant's issues, we affirm the trial court's judgment.