holding that unless party objects to charge on ground that it submits improper measure of damages, he waives objection and cannot complain on appeal that charge permitted jury to find damages based on wrong measure, citing Am. Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 199-200 (Tex.Civ.App.-Amarillo 1977, writ refd n.r.e.)
How later courts described this case
- holding that unless party objects to charge on ground that it submits improper measure of damages, he waives objection and cannot complain on appeal that charge permitted jury to find damages based on wrong measure, citing Am. Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 199-200 (Tex.Civ.App.-Amarillo 1977, writ refd n.r.e.)
- explaining that objection is required to complain about defectively submitted question
- holding that any complaint as to the wording of the jury charge is waived if a proper objection is not made in the trial court
- Although damages issues defectively submitted, defendant "failed to object to them by distinctly pointing out any error"
Written by the judges who cited it.
The opinion
COOK, Justice,
dissenting.
I join in the dissenting opinion of Justice Gonzalez but write separately to express my own views. The majority opinion forecloses use of the substitute facilities doctrine in any condemnation case in this state in which private property is taken. I do not believe the United States Supreme Court has taken this step in cases involving the taking of private property. I believe the doctrine can be successfully applied in this case under generally accepted appraisal principles.
Religious of the Sacred Heart d/b/a Du-chesne Academy (Duchesne), one of the finest schools in the state, had a road placed entirely within the campus. Du-chesne argues that because its property had “no market value,” the substitute facilities doctrine applies and entitles Duchesne to the cost of acquiring adjacent land.
In determining adequate compensation under the Texas Constitution, we must determine a property’s market value. This court and the appraisal profession have recognized three methods of determining a property’s market value. See generally City of Austin v. Cannizzo, 153 Tex. 324 , 267 S.W.2d 808 (Tex.1954). Simply because a property is not “sold in the marketplace,” *631 a fact the City admits, does not lead to the conclusion that it has “no market value.” Id. In- such a situation, the result is that the “market data approach” to determining “market value” cannot be utilized. Consequently, one of the other approaches to determining market value, either the cost approach or the income approach, must be utilized. The majority opinion correctly analyzes these principles.
My divergence with the majority comes with its holding that the United States Supreme Court has foreclosed application of the substitute facilities doctrine in condemnation actions involving the taking of private property. See generally United States v. 564.54 Acres of Land, 441 U.S. 506 , 99 S.Ct. 1854 , 60 L.Ed.2d 435 (1979) (“Lutheran Synod ”); United States v. 50 Acres of Land, 469 U.S. 24 , 105 S.Ct. 451 , 83 L.Ed.2d 376 (1984). I do not read the Supreme Court’s cases so narrowly. I would hold that in condemnation cases involving the taking of special purpose properties for which there are no comparable sales, the cost approach allows the price of substitute facilities to be considered in determining the ultimate issue of market value.
This is precisely the question submitted to the jury in this case. The judgment of the trial court should be affirmed.