*1 ment of the district court be modified will
to read that the remainder interest in an “Oil, Gas, Miner-
undivided one-half of the Properties”
al and Blossie Other Ward- (Jake)
law Moore on the death H. R.
Wardlaw, Jr., vested in the heirs of Blossie indicated, Except Moore.
Wardlaw things of the trial court is all
affirmed. modified, modified,
Judgment and as af-
firmed. SILBERSTEIN, Appellant,
Bessie Texas, Appellee.
The STATE of
No. 12235. Appeals Texas,
Court of Civil
Austin.
April 16, 1975.
Rehearing May Denied
gfig *2 a number Appellant before us on com- which points The first of of error. evidence, conse- is no there evidence, probative quently, insufficient an- base its could value on 2 and numbers special issues swer to jury’s maintains that Appellant also is so respect to these issues verdict with and overwhelming weight contrary to the preponderance the credible evidence unjust. manifestly wrong and to make points. overrule these response to the findings in jury’s special as stated above. three issues were jury’s is that effect of the verdict damage there was no remainder. valued expert witness Tieken The State’s prior whole to the date property part $182,200.00. valued the taking at He $134,650.00. at The remainder be- taken $47,550.00. taking was at fore valued figure a unit These values were based on per square He testified foot. $3.50 there damage was no to the remainder.
Appellant’s expert witness Reed valued $368,489.00 property at and the $280,185.00. taken at He valued $88,305.00, taking remainder before at taking remainder after $40,756.00. opinion was there Norris, Norris, Robert Phillips W. & approximately $47,000.00 was worth Austin, appellant. damage Appellant of- remainder. Hill, Atty. Gen., L. Ar- Watson C. John fered another value witness who testified nold, Atty. Gen., Austin, appellee. Asst. the market value of re- taking $33,960.00. after mainder was PHILLIPS, Chief Justice. This is a involving condemnation case relies Roberts v. partial property adjacent Texas, State of (Tex.Civ. S.W.2d 388 on the east Highway side of Interstate 35 App.1961, writ), wherein re Austin, County, Travis Texas. versed a condemnation award made in the case was tried before a that found the contrary court because it was so $153,894.00; the land taken was great weight preponderance that the prior value of the entire tract evidence as manifestly wrong to be the taking $208,235.20; and that unjust. (as Here bar) the case at value of the remainder jury found that the remainder had a value $54,341.20. findings These were in answer greater than by any that found of the wit special issues numbers 2 and 3. The nesses. Also City Irving Caster, see court entered judgment accordingly. We (Tex.Civ.App. affirm this judgment. writ). In view of the facts before remaining land fact that the the remain finding on the value
jury’s access to the would still have excellent require to reverse der us does frontage 19th Fur- going road into Street. in Roberts announced principles case. The thermore, lay of he stated that only to the lowest first restrict land, angle and the twen- of the street finding the value figure testified to when ty-foot alley at the rear of taking. remaining Sec land after be- very all many were similar to the cites ondly, note that Roberts *3 testified that taking. fore Tieken further jury approval holding that a cases with possibility in his even a opinion there was by blend its conclusion liberty at reach that the of the remainder en- admitted ing all the evidence of the by taking. hanced experience them, and by own aided inquiry; that subject knowledge The evidence established the fact that accept all the compelled to they are not property on east side of In- generally the reject it all. any witness or testimony of Highway terstate 35 is of less value than opinion is not conclu Moreover, evidence that subject proper- on west The the side. accept or and sive a consider ty Nonetheless, appel- is on the east side. may find its reject opinions it own such or lant’s value witness testified to sales Reed by utilizing its opinion from evidence property, only the west side common experience in matters of own highway, the property an but located in necessarily knowledge. While we do area where generally higher values are proposition first commit to the ourselves than subject in property those which the Roberts, accept do the announced in we explained located. Witness Reed this dis- apply and will law in Texas second as the crepancy by subject stating prop- that the accordingly. it erty was in same traffic flow with higher value. Be it may, jury, that as the case lasted six trial of this The evidently, thought otherwise. heard exten days during which the complicated testimony pertaining sive and required accept any was not property. The to the value specific figure by any testified to one wit- is an inde appraisal State’s witness Tieken ness. accept reject was free to or the pendent appraiser master’s de a fee testimony witness and to reach its experience in the gree years’ and sixteen own conclusion blending all the evi- on a field. He based his of value dence, aided by its common sense and ex- study comparable near the sales located perience. Indeed, Roberts supra. subject property on side of Inter the same higher figure found inured Highway comparable state sales benefit so she should not be $2.53, which Mr. Tieken relied on sold for complain heard to See here. Cannon v. $3.16, per square foot. $3.89 $3.51 State, 473 no writ). comparable evaluating
After sales evidence, offered in Tieken testified Mr. complains that also the testi- a had market value mony of her several witnesses as to the $182,200.00. He then valued the value of buildings subject prop- on the taken $134,650.00 at and the remainder be- erty disregarded jury making in $47,550.00. fore the at He valued its award. We overrule this contention for $47,550.- remainder two reasons. First, comparables of- 00. These values on a fig- were based unit fered by the buildings. State included Sec- per ure of square $3.50 foot. ondly, there was presented by that, Tieken further Tieken that buildings opin- testified had no value. ion, He based this damage there was no testimony to the the fact subject taking. result of the He land had based this increased Louis, Lucas v. St. Boyer and landowner. buildings thereon point where S.W. Tex. Ry. acceptable & T. re- S. F. longer produce an would no admissibility basis Consequent- (1903). this increased value. turn on proceeding, case, not a condemnation ly, where had been reached rule party. The by a an admission the was as actually land to raze benefit the applied in condemnation has been Boyer Again, jury believed buildings. subject renditions tax but where cases have no valid reason testimony and we by a landowner-condemnee summation, property made finding. to affirm the (if offered agent are admissible upon or his ample evidence hold that there was admission as either condemnor) findings its which the based tending circumstance party, as a question. special issues in and/or property.1 market value to show urg- appellant’s point we move Next difference can see no purposes, we admitting For our ing error in trial court rendition. tax tax return and a between a return estate tax *4 by the not introduced Here the return was over estate of Sam Silberstein appellee intro landowner, for but counsel appellant’s objection. We overrule 3726, Vernon’s return Art. point. duced the under appellant agree must with Civ.St.Ann. We proper no give failed to that the State inventory The tax return and however, statute; un required by tice appel by appellee impeach were used to this was er before while der the record testimony. lant’s value witness Reed’s 434, Tex ror, it was harmless error. predicate There was no laid for the intro Hinton Procedure. See as Rules of Civil ductory appellee of these documents which 733 Paving 77 S.W.2d v. Uvalde authority maintains were admissible under v. ref’d); Miller (Tex.Civ.App.1934, writ 3726, Ap of Vernon’s Civil Art. Statutes. 624, (Tex.Civ. Unsicker, 625 5 S.W.2d pellant appellee contends that did not com App.1928, writ). no requirements ply the notice and, further, only statute that this statute
allows such
next
to
records to be offered in evi
turnWe
dence
trial court
necessity
proof
without the
of ex
the error of the
which asserts
provided
answer
ecution
to
allowing
that such instruments are
witnesses
for
quarrel
questions
by
otherwise
no
asked them
admissible.
have
We
compensa
law, nonetheless,
with this
statement of the
the total amount
to
State
opinion,
it is
to receive
pretermitting any
our
discus
would be entitled
tion
sion
of the
admissibility
accepted
their
if the
which,
believe,
here,
property prior
we
is irrelevant
market
the tax
tak
taking,
return was
A rendition
value of the
admissible.
to
the market
im
en,
of taxes made
in
the remainder
the market value of
landowner
taking,
troduced at
and the market
mediately
trial
show variance
immediately
market
value from that
claimed
City
City
Corp.
1941,
writ) ;
Burton Lumber
v.
of San
See:
Abramson v.
no
Houston,
363,
822,
(Tex.Civ.App.
Tex.Civ.App.
476,
Angelo,
45
101 S.W.
210 S.W.2d
478
(1907,
ref’d) ;
Doom,
City
1948,
dism’d) ;
El
writ
v.
827
State v.
278
writ
Medrano
writ) ;
255,
(Tex.Civ.App.1925,
514,
(Tex.Civ.App.1950,
Paso,
S.W.
256
no
231
515
S.W.2d
State,
(Tex.Civ.App.
writ) ; Camp
Aue v.
77
606
Court
S.W.2d
no
v. Commissioners’
1934,
ref’d) ;
County
927,
County,
928
writ
Dickens
v. Dob
El Paso
279 S.W.2d
bins,
(Tex.Civ.App.1936,
(Tex.Civ.App.1955,
e.);
no
ref’d n. r.
Cul
have been made. improper Upon confrontation with n. (Tex.Civ.App.1955, W.2d one of make has to argument, 150 S.W.2d e.), r. West de- and difficult lawyer’s immediate writ), State object. cisions, or whether (Tex.Civ.App.1975 Bryan, 518 S.W.2d have must at bar case A.L.R.3rd writ), 33 A.L.R.2d argument try to answer the chosen 694, 702. He must have concluded rebuttal. to disre- for an instruction object and ask by appellant’s raised emphasized argument have would gard a reversal ordered whether should be jury. of the minds of members appel timely objection absence of Current, McNeil v. See improper argument. lant to counsel’s writ ref’d r. n. has Supreme problem Court stated Wood, 436 Company Elevator S. Otis course, disregard An instruction to (Tex.1968): W.2d jury ignorant make the would No one that it would. argument. pretends usually “Improper jury arguments are that, assume, however, having must to as one ‘cura- types: referred of two the mat- knowledge argument jury argument ble’ or ‘incurable.’ A it, ters involved ‘curable’ when the harmful effect and would obeyed the court’s instruction argument can be a trial eliminated *6 permitted knowledge to af- not have judge’s instruction to disre- to the in coun- prejudice fect their verdict. The they gard just what heard. argument would then have been elimi- sel’s is ‘cured’ and harmless error rendered improper is argument nated. When hand, the instruction. On the an other is variety question of harm “curable” inflammatory argument so reached, proper steps if the are taken its harmfulness could not be eliminated prejudicial objec- (an its to remove effect disregard an instruction to the preju- instruction disregard) tion and prejudicial nature of the it. if no dice remains to be harmful. And ment so acute is that it is ‘incurable.’ made, objection calling is reme- thus forth offending measures from dial counsel argument “If the is of a na- ‘curable’ court, party is held to complaining ture, objection promptly it must be his right have waived to have requested made and an or the instruction of harm reviewed. Southern Pacific Com- argument error is waived. But Hubbard, 525, pany Tex. ‘incurable,’ the object failure to does not (Dissenting Opinion (1956), result in a reasoning waiver. The Calvert). Robert Justice making argument that ‘counsel is the require op- the law Appellant’s offender so will not forth of error com prej- posing appellee counsel take a chance on permitting court udicing cause with the mak- to introduce into the inheritance objection.’ ing the estate inventory Smerke Office tax return and the to dis- manner calculated husband, effective and an Sam Sil- appellant’s deceased George testimony of Reed. tendered credit appellee berstein. Counsel that the value on direct Reed had testified pursuant to Tex.Rev.Civ. that evidence property before of the whole Art. 3726. Stat.Ann. required $368,489. Appellee’s permits placing into evi- Art. 3726 the value of the to the Reed to read per- are inventory dence certain instruments in the property contained same required by to be recorded law figure mitted or “adjust” that and to and tax return proof exe- county clerk without “adjusted” taking. The date of the party, of- requires the That article $145,622, cution. a dif- figure by Reed was given evidence, to file fering such instrument $222,867 figure he ference of from papers the suit among the the same jury an- direct examination. The gave days the commencement least three before value of the whole tract swered that fil- trial, of such give and to notice $208,235.20,a differ- Ap- opposite party or counsel. ing to the as- $160,253.80 from the value ence by fil- comply Art. 3726 pellee did not with signed by Reed. in- return and the ing the inheritance tax appellee’s naturally argument by giving notice to
ventory of estate or inconsistency apparent emphasized the appellant. prop- appellant’s placing on the one value comply with appellee did not Because erty purposes and an- inheritance tax the court to ad it was error for Art. purposes. value for condemnation other Hinton v. Uvalde mit evidence. incongruous seemed doubtless Paving S.W.2d there would be so much difference Stickney, 152 ref’d), writ receiving “. . . between the end in Johnson writ), S.W.2d damages, paying end taxes Toler, (Tex. Watson v. S.W.2d Rayburn, .” Texas Law of Con- Rangel Civ.App.1941, writ), Mata v. demnation, (1960). 144(1) § appellee complied Had Art. n. r. appel- would have had notice majority opinion treats the error of lee intended use the in- fashion, following heritance tax return. then us while “. . . under the record before opportunity prepare have had the error, error. it was harmless this was explain away, could, to meet and if she Rules Procedure.” Texas of Civil inconsistency figures between the tax agree harmless. I that the error was cannot position her as to the condemna- tion suit. *7 case, In this as in most condemnation
cases, opinion testimony as to valuation of The evidence admitted in violation of great importance. important and, my opin- Art. 3726 was legitimate objects opposing ion, One convincing jury. It was not counsel is credibility to undermine the of merely cumulative as in Hinton v. Uvalde jury. witness in the view Paving Co., supra. The error of the court my counsel em- was made direct contravention of the ployed figures the valuation in the invento- statute, should, under the circum- ry and tax telling inheritance return in a case, stances of require reversal.