867 S.W.2d 382 | Tex. App. | 1993
This appeal arises from a statutory condemnation case, wherein a portion of the landowner’s property was taken for the expansion of U.S. Highway 183. The trial court rendered judgment on the jury’s ver-
BACKGROUND
Appellee, Centennial Mortgage Corporation (“Centennial”),
The State condemned a 10,438 square-foot parcel of land from the front of Centennial’s property for the widening and reconstruction of U.S. Highway 183 into a limited or controlled access freeway with at-grade three-lane frontage roads running both directions and main lanes on pier structures some 32-48 feet above grade in front of the condemned property. The property condemned by the State was necessary for its proposed highway improvement project. The part taken included land used as detention ponds on the shopping-center property. Centennial was required to replace these detention ponds after the condemnation at a cost agreed to by both parties of $110,000.00. Replacement of the detention ponds eliminated approximately 48 parking spaces in Centennial’s parking lot.
Centennial presented two appraisal experts who testified as to the market value of the part taken and the damage to the remainder property caused by the condemnation project. This expert opinion testimony was supported by detailed market data that was presented to the jury in both sworn testimony and trial exhibits. These appraisal expert witnesses testified that the decrease in the fair market value of the remainder reflected those attributes of the property that a would-be purchaser would consider. This testimony included, among other things, the cost to cure the lost detention ponds, the decreased visibility and decreased accessibility of the remainder, the increased risk of owning the remainder, and the fact that the remainder would be subjected to a 3- to 5-year construction project and would then be located adjacent to an elevated, limited-access freeway.
The State’s lone expert witness testified that the proposed highway improvements and construction project would actually enhance the market value of Centennial’s remaining property. Further, there was testimony about the nature and duration of road-construction activities the State planned in front of Centennial’s property.
The jury returned a verdict favorable to Centennial, and the State appeals, bringing forth fourteen points of error. In points of error four through thirteen, the State claims that the trial court erred in permitting the introduction of inadmissible testimony. In point of error fourteen, the State complains of the trial court’s failure to permit the introduction of certain documentary evidence favorable to the State. And, finally, in points of error one through three, the State contends that certain acts of judicial misconduct deprived it of a fair trial.
DISCUSSION
Admissibility of Evidence
In a series of condemnation eases involving the U.S. Highway 183 project, the State has taken the position that the landowner is attempting to recover statutory condemnation damages that are non-eompensa-ble. See State v. Munday Enters., 824 S.W.2d 643 (Tex.App.—Austin 1992, writ requested); State v. Schmidt, 805 S.W.2d 25 (Tex.App.—Austin 1991, writ granted).
In its fourteenth point of error, the State complains that the trial court erred in excluding a time-and-distance study done by one of the State’s witnesses. The trial court excluded the proffered exhibit on the basis that it had not been properly identified pursuant to a discovery request from Centennial. The trial court found that, because the State had violated its duty to supplement its answers to Centennial’s interrogatories, the evidence should be excluded. See Tex.R.Civ.P. 215(5); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987); Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex.1987). The proper standard for reviewing the appropriateness of the trial court’s admission or exclusion of trial evidence is abuse of discretion. Since there is no showing in the record of any “good cause” for the State’s failure to supplement written interrogatories, we are unable to say that the trial court abused its discretion. Accordingly, the State’s fourteenth point of error is overruled.
Jury Deliberations
The State’s first three points of error involve some unfortunate occurrences after the jury retired to deliberate. As the trial judge and the bailiff were assembling some eighty trial exhibits to send back into the jury room, they determined that one of the exhibits, State’s Exhibit Number 4, was missing.
Apparently, counsel for Centennial arrived first and the mystery regarding Centennial’s Exhibit Number 40 was clarified when it was discovered that the exhibit had never been formally introduced in evidence. At this juncture, the bailiff took Centennial’s exhibits into the jury room.
When the State’s counsel arrived, everyone determined that the missing exhibit must have been inadvertently removed by one of the expert witnesses.
The State moved for a mistrial on the basis that sending Centennial’s exhibits into the jury room first constituted an impermissible comment on the weight of the evidence. In overruling the State’s motion for mistrial, the trial judge observed, on the record, that at the time the State’s exhibits were taken into 'the jury room, the jury was still assembling the evidence, had requested the use of an easel from the court room, and had not even begun its deliberations.
The State, in three related points of error, alleges misconduct on the part of the trial judge in failing to send all the trial exhibits to the jury simultaneously; in entering the jury room and making an unauthorized determination on the extent of the jury’s deliberations; and in communicating with the jury other than in open court. We have examined each of these arguments by the State and find them to be meritless. The record clearly reveals that the trial judge committed no act in violation of the Texas Rules of Civil Procedure, and the State cannot show any
CONCLUSION
Finding no error, we affirm the judgment of the trial court in all respects.
. Centennial Mortgage Corporation is the successor-in-interest to Grand Central Station Shopping Center, Ltd.
. See also our most recent decision in Honorable Dan Morales, Attorney General of the State of Texas v. Chrysler Realty, 843 S.W.2d 275 (Tex.App.—Austin 1992, n.w.h.)
. There was also a problem with Centennial's Exhibit Number 40.
. Nothing in the record suggests that the missing exhibit was removed through any type of intentional design; the removal was purely the result of an accidental oversight.