Uehlinger v. State

al., Appellants, et Marion R. UEHLINGER Texas, Appellee.

STATE of

No. 43. Appeals Texas.

Court of Civil

Corpus Christi. 11, 1965.

Feb.

Rehearing Denied March Christi, Alsup, Corpus

Fisher lants. Crowder, Gen., Atty. P. Asst.

Winston Austin, appellee.

SHARPE, Justice. brought a condemnation case This is Texas, request appellee, at the the State Highway Commission. of the State Uehlinger, Marion R. appellants are Mrs. persons individually daughters, her two and estates of Eleanor Uehlinger Maurine Julia two Uehlinger, and the said Elaine also minors, condemnees all of whom were The case defendants court. taking of a 3.1714 acre the whole volves Christi, tract, City Corpus located interests, Texas, mineral excluding certain upon jury judgment, based for which the appellants verdict, the sum awarded $8,750.00. assert

Appellants 1963, $8,750.00. nine error. juris- Judgment appellants four attack the Points one was rendered that re- authority amount, of the trial court to cover such diction that the State of Texas proceed trial or to in- simple to enter fee to the have title tract minors, prin- interests, interests volving excluding the of said certain mineral and cipally payment agencies citation was not issued or because to involved taxes not filing after in Coun- . appeal. pay on them the the this served in The State did not ty objection to the deposit Court State’s the awarded the Com- amount commissioners, and for the prior .award of the the trial nor did missioners to herein guardian possession ad litem was not the land reason that it theretofore take represent question. minors’ interests cir- agreed, to the It is under such appointed upon cumstances, jury trial the said court. that the date of was 9, 1963, e., upon July the i. the date which asserts error because the trial Point five jury returned verdict.1 its judge the of a State’s excluded appraisal first witness his Appellants’ points under contentions question, gave the it a through largely for the rea- four arise by his higher than shown later that that or served son citation was issued appraisal. Appellants’ points six County papers filed with the after were jury complain nine of an instruction to 10, 1963, pursuant April on Clerk property, fixing that in market value of said appeal State, guardian and because a it “not take into consideration the would represent appointed litem ad was * * * of said land due increased value in connection with the minor defendants to such construction.” County is Court. Reliance 6, particularly, upon Art. placed, Section fully For the reasons hereafter more dis- Ann.Tex.Civ.St., pro- Vernon’s appellants’ cussed we have concluded that objections to upon filing vides first for which the four reflect error Commissioners, ad- the award case be reversed remanded for must party shall be cited and the verse shall cause appears new it that some of the Since trial. civil tried and determined as in other be important by points questions five raised County in the Court cases trial, on a new we through nine arise them in- that some discussion of believe recognize the rule that a We dicated. of citation defendant cannot waive service petition in herein authorize someone condemnation like an and cannot The adult February rec County In case the Judge filed on else to do so for him.2 this with Uehlinger .27, appointed Marion R. and Commissioners were ord shows that Mrs. per request legally appointed guardian of the on date. At is the the same daughters lee, rep- ad her two minor litem was named to and estates of guardian sons County hearing prior appeared Court minors be- and that she resent the individually, guardian Proper and as notice of fore the Commissioners. given parties. Ap- trial of this case. hearing was to all such appellants attorney represents

pellee of the Com- who objected the award same all missioners, purported to act for made on March this Court Hence, ques court. appealed County Court of Nueces in the lower them presented to whether the volun County, tried to the Texas. The case was tion 9th, participation in appearance tary 8th and court 1963. guardian, single special County issue Court trial answered wards, un- made and her the market value behalf of herself submitted Wright Jones, State, S.W.2d Gillam See (Tex.Giv.App.1936, n.w.h.). (Tex.Com.App.1932). necessary the issuance and service guardian of cita- trial. The ad Court litem was not tion on the minors and authorized the capacity authorized to waive cita- jurisdiction lower court to exercise over tion of service on the minors after mat- property sought minors’ interests in the ter County pur- became a case in the Court be condemned. appeal. suant to the State’s no There was subsequent finding that this conflict substance, provided, It is Sec terest had ceased to exist. Such conflict of 3264, V.A.C.T.S., notice tion Article interest between the minor wards and their hearing the Commissioners’ shall guardian required ap- the trial court property sought to a minor who owns point ad litem to personal serving be condemned to his County in minors Court trial. Unless representative if he has That such no one. jurisdiction individual wards had properly given tice in this case is acquired by proper been service of citation questioned. Probate 230(b), Section Texas (which could not waived under the condi- Code, guardian of V.A.T.S. authorizes the prevailing here) tions the court had no au- gen the estate of a minor sue and defend to thority appoint guardian to ad litem or to behalf, erally and Article ward’s proceed to trial as to the So minors.4 provi 1981, V.A.C.T.S., contains additional long legal as there is a conflict of interest relating institution of sions to suits minors, guardian between the and person concerning both real and guardians procedure usual of issuance and service property. However, settled al it is well parties required citation on all is and regular guardian of a minor’s es that appointed guardian ad litem should be represent con tate him in a suit if a cannot represent of the at the the interests minors them.3 flict of interest exists between practicable in earliest time advance of County in trial Court. The minors herein were named as stated, For the appellants’ points reasons along individual defendants with their through four guardian are sustained. but were not served with citation County in the Court trial. While this mat proceeding,

ter By point was still an administrative five, appel their number prior hearing Com before the lants contend that the trial court erred missioners, the motion in sustaining appellee’s State filed a which objection to the testi represented court that a conflict mony .the elicited on cross-examination witness, of interest between the Stone, existed Henry State’s effect to the guardian proceeding. as affects this appraisal his first of the County granted November, Judge the State’s mo question, made in the month of tion, finding expressly an order prop entered showed the market value existed, appointed a that such conflict erty $9,500.00, appraisal and his later guardian represented the taking ad litem who of its market value as of the date of hearing less, why minors at the but $2,000.00 Commissioners’ such was some and as to County appear participate did not or judge trial ruled difference existed. The Rosser, against 3. Sandoval v. S.W. in an action the ward where valid, Shiner, guardian party Shiner v. 40 S.W. is as such is a wr.ref.); guard apply 439 Jur.2d, the rule does not where the Ward, p. § Guardian and 591. ian has an interest which is adverse Dud also In re that of the ward.” See Martin, ley’s (Tex.Civ. Estate, In Dial 37 S.W.2d Stillwell v. Stand 1931), (Tex.Civ.App., App., 1935, wr.dism.); reversed (Tex.Com. Savings Ass’n, grounds, other ard & Loan 57 S.W.2d 75 1930, wr.dism.); App.1933), (Tex.Civ.App., the court said: “While p. general Tex.Jur.2d, Ward, rule author Guardian & § is that a litigation, ized to the ward for or and that entered -correctly appellants’ designated objections connection. record such and ex ceptions charge; the dates of sig shows between the two to the but court’s improve- spections by judge witness Stone the nature endorsement of the trial question been appear had ments does not thereon and we cannot as damaged by persons. pre objections third Counsel certain that were prior We, of such fact was aware sented to and ruled on him. there sup- fore, in limine to properly appellants’ the trial and filed a motion cannot consider damage oc- press grounds of such six evidence nine as for rev trial, However, prior date of curred ersal.5 in view of a new they was offered When such will be further State. discussed. hearing presence trial at the out of The instruction to the effect that in simply adhered judge ques- the market value liable prior ruling. The State was to his give tion the would consideration market only for the reasonable the increased value of the tract due taking, date of property as of the “highway improper construction” 9, 1963, and not on some this case was for a number of reasons. is point Appellants’ number five

prior date. overruled. all, of First the said instruction undisputed as an fact there assumes that ap through nine points six Under prop had an in value of been increase complain of an instruction pellants This erty “highway due to construction”. by wording requested jury in exact improper weight is an comment on the of ap (to which for the condemnor counsel jury prevents from evidence made), objections say proper were pellants fact, whether, determining has there follows: as The of been such increase in value.6 value that determin- “You are instructed necessarily is be said tract determined acres 3.174 ing the market value considering testimony by opinion highway taken for construction of land testimony opinion not witnesses. Such does into consideration you shall not take any a establish material issue as matter of said 3.174 acres increased value effect law.7 The of such an instruction highway construc- of land due to such prevent ascertaining from tion.” by market value the date of true improperly assuming the fact of increase Unfortunately, the record not show does “highway value on account of construc appellants’ objections properly that were which, best, disputed a involves tion” appellate single review. preserved The issue.8 objection to said instruction which is shown

by general the record be is too and cannot given in case specific objections alleged The instruction this The

considered. instruction, proper objection is a ly subject to that made to said are weight evidence. argued appellants’ under comment six “highway term nine, by Also, meaning of the properly are not established clarified, in transcript pages construction” could view of contains two record. (Tex.Civ.App. Haire, Proce 334 S.W.2d 488 5. Rule Texas Rules of Civil State, wr.ref., n.r.e.); dure; Nelson v. Machine Grabes v. Reinhard Bohle Inc., Tools, (Tex.Civ. n. S.W.2d n.r.e.). App., wr.ref., w.h.). 8. Housing Authority 272, T.R.C.P.; of Dallas McDonald Texas Rule Hubbard, (Tex.Civ. pp. Practice, Civil 12.03 1052-1055. S.W.2d Sec. App.1954, n.w.h.). Indemnity Co., Hood v. Texas Ins. other construction on for which the land is being acquired, on the route of other. The decision as to specific when existing highways. interchanges property legally between will be taken is with the condemnor, and if it is decided to take and to a concern An instruction g independent construct segments of effect, any, on market value ing the if project, delay as to property later taken legally date it is taken property as of the is chargeable condemnor, and the by use, allegedly brought about public for a owner property of such should in- project, highway construction struction deprived or otherwise be of its- limits fixed law exceed the narrow reasonable market value on the is- date it par by the facts of the must be authorized actually taken. rule is now well es- ticular case. tablished though specific parcel even land have been considered I, Section Constitution Article part condemnor original Ann.St., Texas, Vernon’s the State of project, proceeds the condemnor with substance, provides, adequate com acquisition portions project some pensation paid to the owner shall be unnecessarily delays tracts, as to other public for a use. which is taken owner of later taken will be right re constitutional The owner has a entitled to the reasonable market value his market value of ceive the reasonable same on actually taken, the date it is actually taken date it is cluding enhancement in brought about taking is Such date of the condemnor. any reason, proper by pre- whether previous back to a time not to be reflected ceding portions project of said or other- by contemplated taking first when the was wise.11 the condemnor.9 highly important It is also that the prop person’s a entire Where required proper condemnor be to make a proceeding general one erty is included in showing in be entitled limiting order to to a thereof, condemnation, equivalent the or (which, instruction cor be permissi particular purpose, it is not for a form) concerning rect in in substance and purpose or condemnor’s

ble to consider the highway project upon the effect of the the fixing in the owner’s property the results thereof being market value of the con con should the compensation; neither present demned. In the case there was no- case, re proper in a be ordinarily, demnor showing date of as to the the announce due increased value quired pay for an particular high ment or institution the improvement it, itself.10 public way project scope the here the relationship project

or of the over-all the important by However, property an distinction the condemnees owned showing in between enhancement herein. as to when must be observed There was no property being property designated con was for market of the the instant value 1963, previous improve acquisition February a from resulting demned from aside hand, petition in con and an increase the for the date which ment on very County Judge. resulting from the demnation filed with market value was by the- contemplated projected, However, one of improvement, or there is evidence Coffin, 11. City Shakelford, City Tex. 9. El v. 88 S.W. of Dallas v. Paso (1947); City wr.dism.). (Tex.Civ.App.1905, 199 S.W.2d (Tex. Rash, S.W.2d 502 Dallas v. wr.ref., n.r.e.); Shakelford, City Civ.App.1964, State v. v. of Dallas cases, Housing (2 Willey, 351 S.W.2d 199 S.W.2d 503 history Authority City Tex.Civ.App.1961, Hub- no writ ei of Dallas of the case). bard, ther n.w.h.). ap- witnesses for the State that he first City In the case of of Dallas Shakel praised for ford, the State in (1947), S.W.2d 503 November, 1961; by month of an- City delayed for years about three after other State’s witness that the route of the municipal public project market an was proposed highway, affected nounced instituting before condemnation by property, generally known lants’ proceedings acquire prop the Shakelford February is also about There erty (consisting adjacent lots), four hav portion the effect that evidence to ing portions theretofore constructed highway had been constructed new .project properties on other market Christi, vicinity City Corpus Tex- been-acquired had separate proceedings. as, reached but such construction had not Supreme Court sustained the trial trial question at the time of refusal court’s submit an instruction12 showing July, as 1963. There is no requested by the might condemnor which began the time the date construction or have tended to recovery. affect the owner’s right way or manner in which the for appeared It Shakelford acquired, same had been com- whether had not designated by been City for proceedings mon or simultaneous or acquisition immediate along with other separate proceedings independent as to properties purchased or condemned units; showing nor is there as to project, the market and could lapse prior takings and of time between the considered to have been taken in a simul the instant one. The record is silent as taneous or common proceeding. why failed institute reasons property, Shakelford at the time it was proceedings condemnation herein an ear- finally taken, had been enhanced payment deposit lier date or to make improvements as a result of made amount awarded Commissioners properties acquired which had been 23, 1963; part March which conduct public separate project market State resulted the date proceedings. and disassociated Under such in this Some date of case. conditions the court held that it was entire testified witnesses ly proper jury for the to into consid take proposed highway generally fluence the of area, the enhanced value of the Shakel- eration properties on market values comparable legal tak including the ford the time the sales as to very question. Appellants made by previ brought about ing, though even objections several City part steps of the ous taken argument for the were overruled. municipal of a the establishment towards mixed the matter of the State also public market.13 the project generally with a discussion of property. apparent that the in- instant It is the much narrower instruction than A jury be clari- to the the struction one in Shakelford involved herein relationship highway project in accordance with the cases fied of the condemned, property being cited. market value of Shakelford, fol- reads as “This 12. Such refused instruction 13. In the court said: conclusion, opinion, supported under consid- “Since the our lows: original desig- part by following El cases: is a of the the Texas eration Tex.Civ.App. site, you Coffin, supra, nated market are instructed Paso v. Ry. you special 502; Gulf, No. & S. F. in answer issue 88 S.W. C. any Tex.Civ.App. Brugger, consideration v. shall not take into Co. County, any, 556; McChristy value, Hall in market if 59 S.W. crease Tex.Civ.App., 576; due to' and San to defendants’ land have accrued Ry. Ruby, supra, public market on Antonio etc. the location the 172,15 designated S.W. 1040.” site.” proper was held in a recent Upon decision.14 guide new trial of this case the applicable Such 'was strip instruction posts the by furnished the cases herein cited highway purposes taken for as well as to should be followed the matters of ad- the value of the remainder owned the mission and exclusion of evidence and in- condemnee, immediately taking before the jury. structions to the question. strip In addition to the Because the errors shown cited, cases hereinbefore a num- are there points through four, lants’ judg- ber of others which rules discuss basic ment of court 'is’-reversed and the applicable jury instructions and cause is remanded for new trial. admission and exclusion of evidence where public improvement the effect of the itself property being on the market value of the NYE, (concurring). Justice taken is reading involved.15 A Title to jointly by the land was held opinions up such- cases the im- in' children, Uehlinger Marion

portance avoiding improper rulings Maurine Eleanor Elaine Uehlin- Julia ger. jury prevent instructions which tend to Upon condemnor, motion while jury arriving from at the true market value the condemnation matter still an ad- property being condemned on the stage, County Judge ministrative de- taking. legal date its termined that there was a of inter- conflict est existing between the minors and stated, the date of heretofore As we have guardian, ap- whereupon, the court 1963. On case was taking in this pointed guardian ad litem might come present this case record during hearing. the Commissioners’ de- of the Shakelford the doctrine within objected The condemnor to the decision and developed herein facts cision. Under timely award of the Commissioners and cited, heretofore and the cases objections filed its requesting that the case to disre- properly be instructed could not County be tried in Court arid the de- up enhancement, any, in gard required by fendants be cited as No law. “highway account of date any citation was issued or served on However, since an generally. construction” ap- had been defendants after the cause here taking was entire however, defendant, pealed; Marion instructed that properly be could Uehlinger, individually property as of and as value of said the market County minors, voluntarily appeared could not consider taking, date of present thereof or the results purpose minors were not condemnor’s Court. The any court; represented establishment the erection and were not they condemnor, strictly litem; by ci- improvements by the nor had service guardian ad per- very upon is then the limited them or tract tation been served pro- subject representative. does not of the condemnation The record mátter sonal ceedings. interest between conflict of elaborate on the Cartwright, 905 14. In S.W.2d due to location State v. 351 land fendant’s ” n.r.e.) wr.ref., (Tex.Civ.App., 1961, highway on such site.’ following instruction held that jury: 306, Parrish, 159 320 S. should have been 15. State v. “ Vaughan, strip (1958); 319 under condem- of land 330 v. ‘Since W.2d n.w.h.); right-of-way (Tex.Civ.App.1958, for a nation within S.W.2d 349 Taylor Austin, City ac- 399 291 S.W.2d which the State of Texas v. wr.ref., n.r.e.); (Tex.Civ.App.1956, you quiring, Hous in arriv- are instructed that ing City ing Authority your Special Sham Issues Dallas v. answer you bry, take not S.W.2d numbers one and two shall value, wr.ref., any n.r.e., 122, into increase consideration accrued, 184, 1953). any, may if de- have

435, Appellant having properly per- failed to guardian and the minors. The record such conflict was fect his error on Points does not show whether owner, complained the amount due each or the ex such errors of will over because likely be an- or nature of such conflict. There same manner tent arise however, necessary predetermined trial, ing, conflict I do not deem it other assignments. the minors and their interest between the other discuss guardian, guardian then waive could not minors, or

the issuance of citation for such appearance voluntary in their be

make a acquired jurisdiction Until the Court

half. minors, person guardian

over the appointed to

ad litem could not be Co., Bitulithic

them. Ginn v. Southwest wr. (Tex.Civ.App.1940), 149 S.W.2d COMPANY, Appellant, ALLIED FINANCE corr.; dism., Wright Jones, Tex. judg. v. v. ap 247, opinion Comm.App., 52 S.W.2d Texas, Appellee. STATE In by Sup.Ct. proved C.J.S. No. 11209. 288; b, p. § fants § Tex.Jur.2d Appeals Court Civil Texas. 319, Guardian and Ward. Austin. party to the condemnation in Each Feb. and therefore be entitled com

sist pensated At separately. for his interest Rehearing Denied March trial, (after another it should be determined

jurisdiction by citation has been invoked repre appointed

and a ad litem minors)

sent whether ap

should their interest have .value

portioned separately. among White them

City Waco, 171 S.W.2d wr.ref.

(Tex.Civ.App.1943.); of Paris ; Tex. 99, 104

Tucker, (1907) S.W. 1046 Huber,

City Houston v.

(Tex.Civ.App.1958).

Appellee argues in the alternative of serv-

this Court should hold that the lack error,

ice on the minors is fundamental only be set aside low- Uehlinger. The

them and not to Mrs. jurisdiction

er did obtain over court way de- There is no defendants. the record extent of

termine from de- the several

conflict of interest between

fendants, what basis the Therefore, because

would be severable. Court) properly (when before the determined desire that their award be

separately, justice would be best subserved

by reversing remanding the entire case.

Case Details

Case Name: Uehlinger v. State

Court Name: Court of Appeals of Texas

Date Published: Feb 11, 1965

Citation: 387 S.W.2d 427

Docket Number: 43

Court Abbreviation: Tex. App.