*1 GRAPEVINE, Municipal CITY OF
Corporation, Appellant,
GRAPEVINE ROAD POOL JOINT
VENTURE, Appellee.
No. 2-89-213-CV. Texas,
Court Appeals Worth.
Fort 27, 1991.
Feb. *2 on Pool was error since no
cades Road law; required was as a matter ordinance or, in- alternatively, there was no evidence support the court’s sufficient evidence to holding barricading Pool Road for fif- that Heller, Tangen, S. Reid Sara Hamlin prolonged restriction unduly teen months Schulman, Boyle Margaret Hutchison K. property; it was error to of access to the Fisher, Dallas, appellant. for Brooks & placed that on Pool hold the barricades Johnson, Fowler, Larry L. Sni- August Susanna Road on were P.C., appellee. Moore, Arlington, to der for because there was insufficient evidence & law, holding; as a matter support that MEYERS, FARRIS, DAY and Before awarding appellees in the trial court erred JJ. $165,000 damages im- because such were or, alternatively, properly were calculated OPINION evi- excessive since there insufficient same; support dence to and the trial MEYERS, Justice. law, in determin- court erred as a matter judgment from a appeal This is an taken pursuant Texas & ing that Civil Practice appellant, City Grape- against rendered 65.015, City Grape- Remedies Code § vine, by appellee, Grape- in a filed lawsuit required pay vine was to ascertain and Venture, in vine Pool Road Joint which damages placement appellee prior for re- appellee asserted claim of metal barricades. “taking” of sulting alleged from an inter- that judgment We reverse and render in real The trial court held est in lawsuit. appellee nothing take taking compensable that a had occurred points of Appellee replies to all of the Grapevine and that violat- Council by appellant brings two error asserted Open Meetings sepa- ed the Act on three argues cross-points Appellee that of error. by closing rate dates Pool Road. failing in to award the trial court erred following points Appellant urges nine punitive damages the evi- because of error: there was no as a matter an properly supported dence such award. or, no alternatively, law there was evi- complains that the trial court Appellee also support dence or insufficient evidence to rea- failing erred in award holding the court’s that diminution pursuant attorney’s fees and costs sonable property resulting appellee’s value 6252-17, art. to TEX.REV.CIY.STAT.ANN. appellant’s decision to barricade ulti- 3.§ mately Pool convert Road into a cul-de-sac 1984, appellee purchased In December damaging constituted or under the a 1.9408 acre tract of land located within States Texas Constitution and United City Grapevine, at the inter- Texas or, Constitution; was County Highway 26 and section of State sup- alternatively, insufficient evidence (more commonly known as Road 3038 port holding appellee pos- the court’s that Road”). approxi- “Pool Pool sesses an easement of access to Road frontage mately 681 feet of on Pool Road property right is a limited to a not frontage Highway on and 162 feet of State right public system roads; holding court erred in that trial Meetings August portion of Pool Road appellant Open the Texas violated 2,1986, August 16,1986, immediately south of September on located Act align 15,1987, order to was rerouted and December were On Au- alternatively, with Brumlow Road. there was no Pool Road violations 19, 1986, appellant’s public works di- gust support evidence or insufficient evidence to conclusion; city that appellant’s council the trial court’s rector informed rerouting of Road necessitated appellant required pass an ordi- Although no for- authorizing traffic control. nance barri- additional date, Findings entered case city of fact in a mal action was taken this same consensus, tried to the court are entitled to the council, by public authorized dignity upon jury’s force and as a verdict to barricade Pool Road works director Johnson, special Raposa issues. *3 city pending further consultation staff with 1985, 43, (Tex.App.—Fort S.W.2d 45 Worth the Inde- representatives Grapevine and of n.r.e.). findings writ of are ref’d Such fact pendent School District. legal sufficiency factual reviewable for and 1986, 2, regular September during On its support of by them the same evidence meeting city again the council considered legal applied reviewing standards when the various traffic control for Pool alternatives sufficiency sup or factual of the evidence again, no Road. Once formal action was porting special to a jury’s a answer issue. lawsuit, Following filing taken. the of this Id. city appellant’s council met on December determining In point, a “no evidence” we 15, They 1987. voted to the barri- remove are only the evidence infer- consider and cade the from northern end of Pool Road finding ences tend support the and a at create cul-de-sac the southern end the disregard court and all and evidence road. this contrary. inferences the See Sherman suit, Appellee’s seeking permanent in- Bank, 240, a v. First Nat’l 760 S.W.2d 242 junction1 (Tex.1988) curiam); and was tried before (per Larson Cook v. 6, Consultants, 567, Inc., on court June 1989. The court held 690 S.W.2d 568 (Tex.1985) curiam). appellant’s placing any If (per actions barri- there is evidence adjacent appellee’s probative support cades force to property with- court, finding point of the must be passing out an ordinance constituted a tak- finding upheld. overruled In and re ing of prop- an easement from as Estate, 660, 244 King’s S.W.2d 661-62 erty resulting owner in a loss of access and (1951). a in appellee’s prop- diminishment value erty. $165,000 The court awarded A point “no evidence” must error in damages, plus prejudgment interest of may be only and sustained when the record $51,579.20 post-judgment and interest at following: (1) discloses com one a per the rate of annum 10% from the date of fact; plete (2) absence evidence of a vital
judgment until it paid. by the court is barred rules of or law weight giving only evidence from to the Appellant’s point first of error as fact; (3) prove evidence offered to a vital serts that the trial court erred because prove the evidence offered to a fact is vital or, there no a was as matter of law evidence; (4) no more than a or scintilla of alternatively, sup was no conclusively the evidence establishes port its that the diminution opposite of vital a fact. Commonwealth appellee’s property resulting value of from Thomas, Lloyd’s Co. v. Ins. 678 S.W.2d city’s decision to barricade and ulti 278, (Tex.App.—Fort 1984, Worth writ mately convert Pool Road into a cul-de-sac Calvert, n.r.e.); ref’d and “No Evidence” damaging constituted a or a under Error, Evidence” Points “Insufficient the Texas Constitution and United (1960). 38 TEXAS L.REV. 361 States Constitution. Property damaged for a been findings 9,17, 21, 20, of fact and 24 public meaning use within of the consti 11,12,13,14,15,16, and conclusions of law materially tution when access is and sub 19, and the trial court found that though stantially impaired even all reason right of access to property had been impaired. City able access has not been materially substantially and impaired as a Corp., v. Texland 446 S.W.2d Waco (Tex.1969). matter of law. property right If a owner’s Road, Appellee sought injunction directing appellant and order to re en an joining appellant erecting existing move barricades all barricades this road. impede grant using which would traffic from trial court did not this relief. materially substantially project, is not and of a construction viaduct elevated impaired, if the restriction of access street north/south above merely results in a diversion of traffic or just level street barricaded lower travel, circuity of then has been proper- left the north of the This damage meaning within Article ty only with access from the east/west 17 of Texas Constitution and the § alley. left Because the front- fourteenth amendment United States cul-de-sac under the viaduct with e.g., Constitution. State v. See Wood Oil street, any public access to the court held Distrib., Inc., (Tex. 751 S.W.2d a material substantial diminution 1988); City Cory., Austin Avenue value had occurred. Id. at 110. *4 11, (Tex.1986); 704 City S.W.2d 13 San of DuPuy find the of differ facts We Olivares, 526, v. 505 Antonio S.W.2d 529- significantly from the of the facts instant (Tex.1974); Corp., 30 Texland 446 S.W.2d in property DuPuy case. The was cut off 2; Fox, City at v. 444 Houston S.W.2d of any public from access to road. id. In See 591, (Tex.1969); City 593 v. Beaumont of contrast, appellee is left with 162 feet of Marks, 253, (Tex.1969); 443 S.W.2d 257 Ar property fronting 26. Highway State The Supply City chenhold Co. Auto. v. city’s net result of the in the actions instant Waco, 111, (Tex.1965); 396 114 S.W.2d Du traveling appel- case is that traffic toward Waco, 103, Puy v. 396 S.W.2d 109- lee’s property on Pool Road must take a (Tex.1965); L-M-S, Blackwell, 10 Inc. v. more route to gain circuitous to access 286, (Tex.1950). 233 S.W.2d 290 property from 26. Highway question The of whether Damages property by which result impairment been a and substantial material being required virtue of traffic to travel a merely access or whether exists property more circuitous route to reach the circuity question the issue of travel is a question compensable in are not and are question of law rather than a of fact. not result of a material and substantial 865; Oil, at Wood 751 S.W.2d see also impairment e.g., Oil, of access. Wood See Olivares, 505 at 530. S.W.2d 865; Olivares, 751 at 505 S.W.2d S.W.2d at determining appel- whether 529; Fox, 593; Marks, 444 S.W.2d at and property materially lee’s has been and sub- 443 at 257. S.W.2d stantially impaired, note that appellee’s we in light When evaluated of the cases undeveloped fronts public corner lot two above, clear it is there was roads, Pool Highway Road and State 26. appellee’s property a material suffered and The record not reflect does that State impairment, substantial since it was never Highway 26 has ever been barricaded road, High- public to a without access State obstructed. way Accordingly, appellant’s 26. first public may One two streets be point error is sustained. compensation abutting closed without 80(b) 81(b), and Under TEX.R.APP.P. remaining if landowners street furnish point, “no it when sustain a we evidence” is piece es a suitable means of access judgment duty appel our render for the Auto., property. Archenhold 396 lant judgment that is the the trial case, appel- at 114. In the instant S.W.2d court should have rendered. See Vista property feet of lee’s has 162 unobstructed (Tex. Lewis, Chev., 176 Inc. v. 709 S.W.2d 26, frontage furnishing Highway thus curiam); 1986) (per and National Ac property. suitable means of access Life 905, 438 S.W.2d Blagg, cident Ins. Co. id. See (Tex.1969). 909 Appellee compares DuPuy, this case to appellant raised in by Contentions proper- at In DuPuy, 396 S.W.2d eight remaining points regarding: of error question in at the ty was located northeast rights appellee; public running alleged easement corner of road north and Meetings alleged Open of the Act paved alley running and a and violations south east passage of city, by necessity at The for through appellant; west. Id. 104-05. majority appellant; property only trial 135 feet. The by an ordinance court’s finding unduly prolonged of ac- holds that the 162 feet of unobstructed denial frontage Highway pro- question; cess to the in the erro- which runs into vides of access. I neous calculation and find- such a suitable means appellant required disagree. that to ascertain not face The does pay damages prior proper- Highway and rather the bulk barricades, it, ty, length metal need not addressed in old Pool Road. be faces does, light portion abutting Highway of this court’s in that case, fact, thorough- instant easy occurred and rever- have access from that fare, judgment. Similarly, portion of the trial court’s lies sal but the 681 feet appellee’s assertions that time during it should have within had no access when punitive damages been awarded and attor- completely both barricades blocked the ney’s alongside fees need not be addressed since stretch running of Pool Road judgment has been rendered favor of
appellant. 9, 20, findings I would affirm and judgment
We reverse render conclusions and 13 of the trial court *5 nothing take in its lawsuit. damag and hold that did suffer a taking and a for which he is entitled to FARRIS, J., dissents. compensation. Improvement Fort Worth Worth, Dist. No. 1 Fort Tex. FARRIS, Justice, dissenting. (1913). I also S.W. But would dissent, I appel- and would hold hold this temporary, infliction was did temporary lee suffer a and dam- removed, the north barricade been resulting aging of his from the the trial found court that old Road barricades on both permanently Therefore, will not be closed. north and south ends of the old Pool I would for the reverse remand deter August Road 1986 to December of mination temporary for the appellee’s property. piece question is shaped trapezoid, parallel like a with the
sides, longest feet, of which 681.7
running Road, along straight old Pool
edge lying at the south end of old Pool
Road, edge running and the slanted 26; along Highway
feet the total width of