Opposition Brief — Travis v. Texas

(>) ' Supreme Court, U.S.

FILED

JUN 10 1987

JOSEPH F. SP. ,

3 IN THE - cuRk |

SUPREME COURT OF THE UNI eA:

OCTOBER TERM, 1986 —

—

CHARLES D. TRAVIS, et ux. and

WILLIAM V. TRAVIS, et ux.,

Petitioners,

Vv.

THE STATE OF TEXAS, et ai.

Respondents.

On Petition for a Writ of Certiorari

te the Supreme Court of Texas

MEMORANDUM IN OPPOSITION

Of Counsel: JIM MATTOX

| Attorney General of Texas

TYRONE E. COOPER MARY F. KELLER

First Assistant City Executive Assistant Attorney

Attorney General

Beaumont, Texas

DUDLEY FOWLER

Assistant Attorney General

Chief, Highway Division

JOHN M. SCHILTZ*

Assistant Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(612) 463-2004

Attorneys for Respondents

*Counsel of Record

TABLE OF CONTENTS

py Be ey gy | re rr

MEMORANDUM

CONCLUSION

eoeeeeveeereeeeeeeeeeeeeeeeeeeeeeeeee

ii

TABLE OF AUTHORITIES

Cases:

Bothwell v. United States, 254 U.S.

231, 233, 41 S.Ct. 74, 65 L.Ed.

O08 RID ooo cn dcactcxss ees

City of Dallas v. Priolo, 242 S.W.2d

OWE COROOD bc kd caknedcensacacasacens

Exxon v. Eagerton, 462 U.S. 176 at

181, 103 S.Ct. 2296, 76 L.Ed.

S|; Weems

Gray-Taylor, Inc., v. Tennessee,

587 S.W.2d 668 (Tex.Sup.Ct. 1979)..

Illinois v. Gates, 462 U.S. 213,

218 note, 103 S.Ct. 2317,

2321, 76 L. Ed.2d 527 (1983) ......

Joslin Mfg. Co. v. City of Providence,

262 U.S. 668, 675, 49 S.Ct. 684,

OP? L.. BR. BOOT CHBBR) cca cicdccccacccs

McGoldrick v. Compagnie Generale

Transatlantique, 309 U.S. 430,

434-435, 60 S.Ct. 670, 673,

eS Sl ere

Stipe v. United States, 337 F.2d 818,

821 (10th Circ. 1964) ..............

United States v. Powelson, 319 U.S.

266, 281-283, 63 S.Ct. 1047, 87

L. Bad. 1908 C1048) ncn ccncsvccnscsces

Statutes:

8 0.8.0. HN CO cic

Texas Constitution, Art. 1 § 17 ......

Page

ww Ww

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

NO. 86-1804

CHARLES D. TRAVIS, et ux. and

WILLIAM V. TRAVIS, et ux.,

Petitioners,

¥.

THE STATE OF TEXAS, et al.

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Texas

MEMORANDUM IN OPPOSITION

Certiorari should be denied:

I. Because the Petitioners did not press

a constitutional issue in the Texas

Courts and the Texas Courts did not

pass upon a Constitutional issue.

II. Because it is the law in Texas, and

generally, that income lost as_ the

result of a condemnation is _ not

recoverable as a_ separate and

additional element of damages.

This case in the Texas state courts was a

condemnation for highway purposes prosecuted by

2

the City of Beaumont, Texas for the State of.

Texas, as is the custom in Texas where a proposed

state highway will traverse a city. In three Texas

courts: the trial court, the Court of Appeals and

the Supreme Court of Texas, Petitioners contended

that they were entitled to recover rentals lost by

the relocation of their tenant, in addition to the

fair market value of the land condemned and damage

to the remainder land. (Resp. App. A, pp. 4, 5,

7; Resp. App. B, pp. 7, 8, 11; Resp. App. C,

pp. 2, 3; Resp. App. D,,pp. 9-11; Resp. App. E,

p. 4).

At no point in the case's journey through the

courts of Texas did Petitioners specifically contend

that the denial of an additional award for lost

rentals constituted a denial of rights guaranteed by

the Fifth and Fourteenth Amendments to the United

States Constitution (Resp. Apps. A-E). That

contention not having been made, none of the three

Texas courts that dealt with the case addressed the

subject. (Pets. App. A, pp 20-55). Petitioners

first mention (as contrasted with "contention") of

Fifth and/or Fourteenth Amendment rights is found

in their Motion, as Respondents in the Texas

Supreme Court, seeking a stay of Mandate. Their

first contention is found in their Petition for

Certiorari in this Court when (Pet. p. 12) they

assert that the exclusion from the jury of evidence

of lost rental income constituted a taking without

just compensation under Amendments V and XIV of

the United States Constitution.

It is clear beyond doubt that the proposed

testimony regarding lost rentals was proposed as a

separate and additional element of damages. (Resp.

App. A, pp. 1-9; Resp. App. C, pp. 1-4). That

was the case before the Texas courts and it is

perforce the case before this Court.

3

In the Texas Court of Appeals (Resp. App. B,

p. 12) and in the Texas Supreme Court (Resp.

App. D, p. 11 ), Petitioners' briefs did have the

language:

"Without the presentation of evidence of

Owners' lost rent, the judgment resulted

in an unreasonable and unjust award, and

in effect, constituted the taking of

Appellants' property without adequate

compensation."

Looking at that language in the light of the entire

record, including especially the case footnoted with

the quoted language, it is apparent that Petitioners

were contending that they were deprived of

adequate compensation when they did not get an

award that included separate and _ additional

compensation for lost rentals; that is, that their

rentals were taken without adequate compensation

therefor. In view of the record, the verbiage

quoted cannot be contorted into the pressing of a

Fifth or Fourteenth Amendment claim, as the cases

require. Particularly, the verbiage cannot be so

contorted when it is apparent that none of the

Texas courts understood Petitioner to be contending

for anything but additional, separate damages.

That claim was all that the trial court had before

it, and therefore what the Texas Court of Appeals

and Supreme Court had before them. It is clear

that the Texas Court of Appeals reversed the trial

court for not permitting evidence of lost rents as a

tart. 1 §17 of the Texas Constitution, the

counterpart of the Fifth and Fourteenth Amendments

to the United States Constitution requires adequate

compensation.

4

separate and additional element of damages (Pet.

App. A, pp. 36, 39, 42, 46), and equally clear

that the Supreme Court of Texas reversed the

Court of Appeals in that same regard. (Pet. App.

A, p. 49).

I.

This petition for certiorari is made pursuant

to 28 U.S.C. §1257 (3). The entire section

provides: ;

Final judgments or decrees rendered by

the highest court of State in which a

decision could be had, may be reviewed

by the Supreme Court as follows:

(1) By appeal, where is drawn in

question the validity of a treaty or

statute of the United States and _ the

decision against its validity.

(2) By appeal, where is drawn in

question the validity of a statute of any

state on the ground of its’ being

repugnant to the Constitution, treaties or

laws of the United States, and _ the

decision is in favor of its validity.

(3) By writ of certiorari, where the

validity of a treaty or statute of the

United States is drawn in question or

where the validity of a State statute is

drawn in question on the ground of its

being repugnant to the Constitution,

treaties or laws of the United States, or

where any title, right, privilege or

immunity is specially set up or claimed

under the Constitution, treaties or

statutes of, or commission held or

ae Pile hk

5

authority exercised under, the United

States. June 25, 1948, c. 646, 62 Stat.

929.

This petition then seeks a writ of certiorari

where a ". . . right, privilege or immunity is

specially set up or claimed under the Constitution .

. of the United States."

A federal claim - e.g., taking of property in

violation of the Fourteenth Amendment - cannot be

considered by the Supreme Court unless the claim

was raised in the state court or considered and

decided by the state court. JIllinois v. Gates, 462

U.S. 213, 218 note, 103 S.Ct. 2317, 2321, 76 L.

Ed.2d 527 (1983), in which the Court quoted with

approval McGoldrick v. Compagnie Generale

Transatlantique, 309 U.S. 430, 434-435, 60 S.Ct.

670, 673, 84 L.Ed. 849 (1940):

"But it is also the settled practice of this

Court, in the exercise of its appellate

jurisdiction, that it is only in exceptional

cases, and then only in cases coming from

the federal courts, that it considers

questions urged by a petitioner or

appellant not pressed or passed upon in

the courts below..."

2See Exxon v. Eagerton, 462 U.S. 176 at 181,

103 S.Ct. 2296, 76 L.Ed. 2d 497 (1983) in which this

Court declined to assume jurisdiction of an issue

addressed by a party in the State Supreme Court but

not decided by it, particularly in the light of

Gray-Taylor, Inc., v. Tennessee, 587 S.W.2d 668

(Tex.Sup.Ct. 1979) wherein it was held that a point

raised for the first time on appeal will not be

considered by an appellate court.

6

II.

It is settled law in Texas that in a partial-

taking condemnation case the landowner may show

loss of profits, not as a separate item of damages,

but as affecting the market value of the remaining

land and improvements for the uses to which they

were adapted and were being put.,, City of Dallas

v. Priolo, 242 S.W.2d 176 (1951). In this case,

Petitioners, without exception until they moved the

Texas Supreme Court for re-hearing, sought the

right to introduce evidence of lost profits only as a

distinct, , separate and additional element of

damages. In their motion for rehearing they

shifted their ground, but even then they argued

for additional damages on account of lost profits.

(Resp. App. E, p. 5).

For the foregoing reasons the petition should

be denied.

3texas follows the general rule in this regard

which is the same as the federal rule. See Bothwell

v. United States, 254 U.S. 231, 233, 41 S.Ct. 74, 65

L.Ed. 238 (1920); Joslin Mfg. Co. v. City of

Providence, 262 U.S. 668, 675, 43 S.Ct. 684, 67

L.Ed. 1167 (1923); United States v. Powelson, 319

U.S. 266, 281-283, 63 S.Ct. 1047, 87 L.Ed. 1390

(1943); Stipe v. United States, 337 F.2d 818, 821

(10th Circ. 1964)

tin their motion for re-hearing to the Texas

Supreme Court Petitioners for the first time urged

that they be allowed to present the evidence of lost

rentals as bearing upon the value of the land

condemned and damage to the remainder. That was not

the case on the record before the Court.

7

Respectfully submitted,

Of Counsel: JIM MATTOX i

ATTORNEY GENERAL OF

TYRONE E. COOPER TEXAS

First Assistant

City Attorney MARY F. KELLER

Beaumont, Texas EXECUTIVE ASSISTANT

ATTORNEY GENERAL

DUDLEY FOWLER

ASSISTANT ATTORNEY

GENERAL

CHIEF, HIGHWAY

DIVISION

BA bh J hett

~ JOHN M. SCHILTZ*

< Assistant Attorney

General

P. O. Box 12548

Austin, Texas 78711-2548

(512) 463-2004

*Counsel of Record

June /2_, 1987

re onenew

—tI—F—Eéé=l=l_—

APPENDIX A-1

46969

STATE OF TEXAS, IN THE COUNTY

ET AL COURT AT LAW

VS. AT LAW OF

CHARLES D. TRAVIS, JEFFERSON ET UX

COUNTY, TEXAS

STATEMENT OF FACTS

VOLUME ONE OF THREE VOLUMES

APPEARANCES:

FOR THE PLAINTIFF:

Hon. Tyrone Cooper

Attorney at Law

801 Main Street

Beaumont, Texas 77701

FOR THE DEFENDANTS:

Hon. Floyd Landrey

Attorney at Law

285 Liberty, Suite 1900

Beaumont, Texas 77701

BE IT REMEMBERED that the above cause came

on for trial on July 1, 1985, before the Honorable

Alfred S. Gerson, Judge presiding in the County

Court at Law No. One of Jefferson County, Texas,

and the following proceedings were had:

(REPORTER'S NOTE: The following

proceedings were had in chambers. )

APPENDIX A-2

MR. COOPER: Your Honor, this Motion was

filed on behalf of the State of Texas and the City

of Beaumont, who are Plaintiffs in this case, and

the thrust of the Motion is that we request Your

Honor to instruct Defendants and any witnesses on

their behalf to refrain from introduction of evidence

or alluding to any loss of income or rents by reason

of loss or reduction of rental by reason of the

impending condemnation.

What I think has happened is that the State

announced the project and there was a tenant in

the premises at the time and that tenant left the

premises by his own election.

There is sufficient case law in my Brief, State

vs. Vaughn, Naumann v. Urban Renewal Agency

and Parrish vs. State supporting our position we

have taken, which is the mere fact that because a

letter was sent by the State indicating their

intention to at some point in time condemn the

property, is not sufficient for the property owners

to make a claim for loss of rent where no taking or

eviction of the premises had taken place, only a

letter of intention and it is our position that the

landowners are not entitled to loss of rent where

there is not prior taking and we would request the

Court to instruct the Defendants to refrain from

introducing any evidence, oral or written, which

relates to the loss of rent.

THE COURT: What say you?

MR. LANDREY: Your Honor, if I sound

repetitious in this thing, I am doing it in that I

have actually never tried or presented a

condemnation case to this Court before so if you

will bear with me, I would like to cover some things

that might seem basic as they refer to his point

against mine. Number One, he is absolutely right,

APPENDIX A-3

one hundred per cent right on the law that has

always been the law and he cited cases, all of

which I have read. In this case since it is not a

whole taking of the property by the State, meaning

the entire land and improvements, where there is

no remainder, the law is clear that you cannot

recover consequential damages of loss of rent as a

result of the State having sent a letter to the

owner telling him we are taking your property in

the future. Therefore, his three cases all are

whole takings and they clearly announce the rule

that there can be no consequential loss of rent

because there was never an invasion of Plaintiff's

rights. That is not the case here. In _ our

situation I expect to prove, if the Court denies his

Motion, that we come under a partial taking, that

they are taking approximately one and a half feet of

the land involved, leaving a remaining building and

land that they claim is still utilizable and, in fact,

left the majority of its value. It being a partial

taking, we come under the Supreme Court case

which decided and settled the law in 1943 that I

would like to present. It's the City of La Grange

and I will just touch the highlights. It's a partial .

taking and the Plaintiff said they had damaged a

property right that he had in his remainder because

they blocked him off in the process and they

invaded his property rights. He said they had

damaged his ingress and egress. The Supreme

Court, in answering said loss regarding eminent

domain, makes a distinction in the taking of a whole

tract of land and the taking of part. If it was a

whole taking, he is not entitled to damages. But

since this is a partial taking, the right to recover

is established by proof of some right of property

and damages measured by the extent of injuries. A

business is property for which recovery can be had

in eminent domain and can be measured by loss of

profits. Now, where a part of a tract is condemned

for said purposes and the owner claims damages to

APPENDIX A-4

the land left, on account of loss of profits arising

from established business, such claim should be

presented at the condemnation proceeding if it is of

such a nature that it could have been foreseen.

Where breach of contract or tort results, that is

the key, to an established business in the form of

loss of profits which would have been derived

therefrom absent such breach, the owner may

recover damages measured by the amount of profits

and the same _ rule applies in condemnation

proceedings. In this case, and I think that I can

prove, they went in there three years ago and

contacted a tenant of my client's in person, not by

letter. They said, We will pay you money to vacate

and cancel your lease, and the tenant said, /'ll take

your money and run, and he's gone. He's gone.

And three years later in 1983 they have a taking

and for the first time acquire the first one and

one-half feet of what they paid the tenant to leave

the entire tract. The interference was a tort. The

State did it. They interferred with a contract on a

remainder that they never intended to buy, and,

therefore, under the Supreme Court case which

says he must recover if he can prove it or is

forever barred. I am saying that rent is a loss of

profits. And what distinguishes my case from the

ones Tyrone has is that his are whole takings and

there cannot be consequential damages in a whole

taking. I know that and he's right about that.

But in a partial taking you must and can show any

damage that is consequential or actual in showing

your damage to the remainder, the way the owner

is left. And I think it is absolutely admissible

evidence to show that as an element of damage the

evidence of tortious interference with a contract

where the State did not take all of the property.

If the status of our case was that it was a whole

taking, I would agree. But this is a partial and he

doesn't have one case on a partial taking. It would

stand to reason that the State cannot go in and pay

APPENDIX A-5

a tenant with a contract to vacate. You simply

cannot pay a man to violate his contract, but they

did it. It was more than a letter. I think I can

prove they paid the man to move. What I am

getting down to is this---if a man, prior to the

date of taking, being when the State actually

acquires its right, and on a whole taking the State

can always back out, likewise even on a partial

taking they can back out. The owner has acquired

nothing until they put up money and on whole

taking the State would have the right to back out

because you could never prove’ consequential

damages as a result of a tenant vacating, but where

they are leaving a remainder I do not think you can

go in there and tell the tenant we will take the

remainder and we will pay you to go now. We even

put in another tenant and they paid him to move.

So I think I should be able to show that for the

pure reason that I think I am entitled to show loss

of profits as a direct result of their paying the

tenants to move out every time we moved one in.

MR. COOPER: Your Honor, I am familiar with

this case and if you read it closer it talks about

loss of access and claiming for loss of profits in a

case where a road is being constructed. In our

case, as of this date there has been no

interference. His allegation as to the State paying

tenants to move, let me say this---the policy of the

State is that if there is a tenant in there he will be

informed of his rights under the State Relocation

Program and if he wants to move he can go to the

State Highway Department and receive compensation

and if he chooses to do so it is on him. I contend

that no one working for the State paid them to

move. Again, the policy is, if a tenant chooses to

move, we are obligated to compensate that tenant

for relocation. In this case they have been

relocated and I contend the rule of law is the same

in a partial taking as in-a whole. Where there is

ij

APPENDIX A-6

no invasion of a property owner's rights the State

should not be obligated to pay for something they

had nothing to do with. You are asking the State

to subsidize a property owner when an election is

made by the tenant to relocate. The State played

no part in the breach of the lease and we still

contend that the State should not be obligated for

an election made by a tenant. Once a project is

announced, should the State be obligated to pay for

every tenant who elects under his rights of

relocation? I contend we should not be.

THE COURT: Okay.

MR. LANDREY: In response to that, Judge,

the State had no reason to pay any tenant to

relocate three years ago. One of the man's

property rights is to lease his property. His

argument is that they just paid the tenant when the

tenant voluntarily left. And I am saying I should

have the right to show, and under my facts I think

that I can prove, that not only was it not just a

letter they sent to the tenant, but they told him

that if he would vacate the premises right then, we

will pay you right now. That was three years ago,

Your Honor, and that's the only reason that tenant

vacated.

THE COURT: Are you saying that what

Tyrone says goes to the weight?

MR. LANDREY: Yes, and he cannot possibly

prove that the State was contacted by a tenant, but

we can show, I think, that it was the other way

around. The State contacted the tenant.

MR. COOPER: Your Honor, it goes as to the

admissibility, not to the weight. They are not

entitled to a loss of rents and they should not be

EAS

APPENDIX A-7

entitled to it. If that tenant left, they could put

another one in.

MR. LANDREY: Which we did and you paid

him to leave, too.

MR. COOPER: They were paid for relocation.

MR. LANDREY: That's like saying you didn't

interfere with someone after you enticed him with a

ten dollar bill.

THE COURT: Okay.

MR. LANDREY: In other words, you paid him

and I think it is an element of our damages. Keep

in mind, every case he cited was a whole taking.

MR. COOPER: Well, a partial is the same.

MR. LANDREY: No, sir. Your own motion

says, incidental or consequential to the taking of

entire property and for which reason the State is

not liable for such consequential damages. You

cannot recover them in a whole taking.

MR. COOPER: But then I say, there has been

neither a taking nor any character of physical

invasion of the property.

MR. LANDREY: Property is not literal.

MR. COOPER: I understand that.

MR. LANDREY: It's the owner's right to use

his land without the tortious interference by any

entity.

MR. COOPER: And he had that right.

APPENDIX A-8

MR. LANDREY: He had the right, but you

interferred with it prior to the taking.

THE COURT: Are you both through?

MR. COOPER: Yes.

MR. LANDREY: Yes.

THE COURT: This is off the record.

(WHEREUPON A DISCUSSION WAS HAD OFF

THE RECORD.)

THE COURT: It is the opinion of the Court

that with respect to loss of rental that the property

owner is not entitled to recover for loss of rental.

The Court thinks variances as to causes does not

change the rule and the Court sustains the Motion

in Limine.

(REPORTER'S NOTE: Whereupon, the

proceedings resumed in Court as follows.)

THE COURT: Good morning, ladies and

gentlemen. I am Al Gerson, the Judge of this

Court. This is the County Court at Law and I

want to apologize to you for keeping you around so

long. We've had a heavy docket here this morning

and everything else went wrong so please just bear

with us and accept my apologizies. You've already

met Mr. Stelly, I guess, and this is Miss Schofield,

our court reporter. I'll get to these lawyers in a

little bit, but first, let me tell you that we

appreciate your being with us here today. We

particularly appreciate your response to our call for

your civic service and it's responsible citizens like

you who come down here, because there are

probably a lot of other things you would rather do

APPENDIX A-9

than be here, and I can understand that. Now, to

acquaint you a little bit with what we call the

APPENDIX B-1

NO. 09-85-00246-CV

IN THE

COURT OF CIVIL APPEALS

FOR THE

NINTH SUPREME JUDICIAL DISTRICT OF TEXAS

BEAUMONT, TEXAS

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX, Appellants

VS.

THE STATE OF TEXAS, ET AL, Appellees

Appeal from the County Court at Law of

Jefferson County, Texas

Honorable Alfred S. Gerson, Presiding

BRIEF FOR APPELLANTS

MOORE, LANDREY,

GARTH & JONES

BRACK JONES, JR.

FLOYD A. LANDREY

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

ATTORNEYS FOR

APPELLANTS

APPENDIX B-2

Page

BS GE TUNG cc cccccccccccciccscceese ii

Bee GE BANUIEED cccccsccccccessccccs iii

Statement of the Nature of the Case .... 2

Point of Error Number One .............. 2

Point of Error Number Two .............. 3

Brief of the Argument ................5. 3

SE TP TUE cccccccesscsacesececes 7

Certificate of Service ................: 8

——e TL Bee

APPENDIX B-3

LIST OF PARTIES

The names of all parties to this litigation are:

1. The State of Texas and the City of Beaumont;

and

2. Charles D. Travis, et ux and William V.

Travis, et ux

APPENDIX B-4

LIST OF AUTHORITIES

City of La Grange vs. Pieratt, et ux

CT. TDGR). ccccscscccevcscccccencevcencs 6,7

Mayberry vs. Pedernales Electric

Cooperative, 268 SW 2d 493 (Tex.

Civ. App. - 1973)... .csccccccccc-rcovececes 3

Miers vs. Housing Authority of City

of Dallas, 266 SW 2d 842 (Tex. 1954)..... 3

Ready vs. Marshall, 234 SW 2d 104

(Tex. Civ. App. 1950).......-.-eeeeeeees 3

State vs. Jackson, 388 SW 2d 924 (Tex.

Civ. App. 1064). .ccccccccces seccccvecees 3

APPENDIX B-5

NO. 09-85-00246-CV

IN THE

COURT OF CIVIL APPEALS

FOR THE

NINTH SUPREME JUDICIAL DISTRICT OF TEXAS

BEAUMONT, TEXAS

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX, Appellants

vs.

THE STATE OF TEXAS, ET AL, Appellees

Appeal from the County Court at Law of

Jefferson County, Texas

Honorable Alfred S. Gerson, Presiding

BRIEF FOR APPELLANTS

TO THE HONORABLE JUDGE OF SAID COURT:

Appellants, CHARLES D. TRAVIS, ET UX and

WILLIAM V. TRAVIS, ET UX, hereinafter called

Owners, respectfully file this their Brief on appeal

of the above entitled and numbered _ cause.

Owners/Appellants are appealing an _ unfavorable

judgment rendered against them in favor of

Appellees, the State of Texas and the City of

Beaumont, Texas, hereinafter called the State.

APPENDIX B-6

A. STATEMENT OF THE NATURE OF THE CASE

This is a condemnation case wherein the State,

Plaintiffs, recovered fee title and possession to a

tract of land (See TR _ P-42 for property

description.) located in Beaumont, Texas, and

certain buildings thereon from Owners for the

purposes of widening State Highway Spur 380.

Owners' property was located on the North side of

Railroad Avenue at the intersection of Washington

Avenue. The condemnation was a partial taking of

the real property, a whole taking of two (2)

buildings and a partial taking of a third building.

A visual portrait of the taking is reflected in

(DX-2, SF P-462). Approximately twenty-five (25)

feet (SF-67) on the street side of Owners' property

was taken and all of Building #1 (wherein Owners

conducted their family business) and Building #3

(which was used for storage); however, only

approximately 2.4 to 2.6 feet of Owners’ Building #2

(DX-2, SF P-462) was taken. At times material to

this suit, Building #2 was utilized by a lessee as a

business.

The date of taking of the property by the

State is October 28, 1983 (TR P-17-18).

The Special Commissioners awarded $160,000.00

for the Owners' land (TR P-12). The State filed

objections and exceptions to the Commissioners’

award (TR P-15) followed by trial to a jury in the

County Court at Law of Jefferson County followed

by Owners' appeal from that jury finding.

B. POINT OF ERROR NUMBER ONE

Entry of judgment by the Court was error in

that the State failed to prove jurisdiction.

APPENDIX B-7

C. POINT OF ERROR NUMBER TWO

The Court erred in excluding evidence of lost

rent income (occasioned by the government's action

in relocating Owners' tenant prior to the date of

taking) as an element of damages to the landowners'

remaining land.

BRIEF OF THE ARGUMENT

POINT OF ERROR NUMBER ONE: Entry of

judgment by the Court was in error in that the

State failed to prove jurisdiction.

To establish jurisdiction in. an eminent domain

proceeding, the condemnor must prove that it has

the right to condemn the land in question. See

Ready v. Marshall, 234 SW 2d 104 (Tex. Civ.

App., 1950), Miers v. Housing Authority of City of

Dallas, 266 SW 2d 842 (Tex., 1954) and Mayberry

v. Pedernales Electric Cooperative, 268 SW 2d 493

(Tex. Civ. App., 1973). The Court stated in

Mayberry, supra:

"The record does not disclose that appellant

admitted or that the parties stipulated that

there existed a necessity for taking of

appellant's property by Pedernales Electric, or

that the condemnor has taken all. steps

required to effect a lawful taking. Appellant

has not accepted the award of _ the

commissioners or the money deposited by

Pedernales Electric pursuant to the award or

in conformity with the judgment of the Court.

Appellant therefore has not waived her right

to challenge jurisdiction of the Court and has

not consented to the taking.”

APPENDIX B-8

Acceptance of the Special Commissioners' award

precludes a party from contesting the State's right

to take property. A further discussion of

condemnation and jurisdiction is reflected in State

v. Jackson, 388 SW 2d 924 (Tex., 1965). Although

the Supreme Court reversed the case (383 SW 2d

648, Tex. Civ. App., 1964), it is distinguishable

from the facts presented herein. In State v.

Jackson, the landowner’ was_ precluded form

contesting jurisdiction because at trial the State

proved jurisdiction and the award of the Special

Commissioners had been deposited and withdrawn by

the landowner.

The record herein does not disclose that the

owners admitted the right of the State to take their

property, nor that the parties stipulated that the

State had taken all steps necessary to effect a

lawful taking. There is no evidence in the record

that the Owners withdrew the award of _ the

Commissioners or the money deposited by the State,

or in conformity, with the judgment of the Court.

Thus, the Owners have not waived their right to

challenge jurisdiction; accordingly, the Court had

no jurisdiction to proceed to judgment in that no

evidence was presented on this point.

POINT OF ERROR NUMBER TWO: ‘The Court

erred in excluding evidence of lost rent income

(occasioned by the government's action in relocating

Owners' tenant prior to the date of taking) as an

element of damages to the land owners' remaining

land.

Recalling this is a partial taking of Owners'

land, the discussion herein centers around Building

#2. 2.4 feet to 2.6 feet of that building was taken.

(SF P-67). Essentially, the front wall and awning

APPENDIX B-9

of the building which was being used by a lessee as

a motorcycle shop were involved.

Owners complain that PRIOR (emphasis added)

to the date of taking (October 28, 1983), the State

contacted the lessee of Building #2 and eventually

relocated the lessee. In 1980, Dwain Markham

rented Building #2 from Owners (Travis Brothers

Hardware). His business was a licensed dealer of

Harley-Davidson motorcycles. In 1980, he was

contacted by a_ representative of the State

concerning relocation of his business (SF 419

P-420). The State paid his relocation expenses (SF

P-420) (SF P-423). Markham was told by a State

Representative if he moved then or soon, he would

receive relocation assistance. If he waited until the

property was condemned, he would not qualify for

relocation expenses (SF P-423). He did not contact

the State (SF P-423) and the first he knew of the

relocation program was from the State

Representative (SF P-424).

State witness, Lynwood Walters, the relocation

agent, verifies the above facts in his testimony

(beginning SF P-428) and indicates he had many

discussions with the lessee, Markham, about

relocation prior to the date of taking (SF P-432).

Markham purchased the motorcycle dealership

in 1980 and the building lease expired in 1980.

Markham had agreed to remain in the building for

the remainder of the lease and then renegotiate the

lease (SF P-426).

Prior to jury selection, the Court sustained

the State's Motion in Limine, excluding Owners'

evidence relating to lost rental income. (TR P-22).

APPENDIX B-10

By Bill of Exceptions, Owners' evidence

relating to the lost rental income was tendered and

overruled by the Court. (See Supplemental SF P-2

and 3.) William Travis, Owner, testified he lost

$1,000.00 per month for 29 months ($33,450.00,

with interest) as a result of the State's contacting

and relocating his tenants prior to the date of

taking (October 28, 1983). The jury should have

been permitted to hear this evidence.

Again, it must be emphasized the law

distinguishes condemnation of the whole of a tract

of land from that where there is only a partial

taking. Here, part of Building #2 and a part of

the real estate was taken. Unquestionably, the

State, PRIOR (emphasis added) to the date of

taking, invaded Owners' property, had conversation

with Owners' tenant and in fact, relocated Owners'

tenant (i.e., a physical invasion of Owners'

property).

In City of La Grange v. Pieratt, et ux (Tex.,

1943), the Court discussed recovery of lost rentals

in a partial taking as follows:

"A right of recovery is established by proof of

injury to some right of property, and the

damages are measured by the extent of the

injury to that right. Thus, a business is

property, and the reasonable damages for

interference with the access to business

property may be measured * * * by the loss of

profits."

ms where a part of a tract of land is

condemned for street or road purposes, and

the owner claims consequential damages to the

land left on account of the loss of profits

arising from an _ established business being

\

APPENDIX B-11

conducted thereon while the road or street

improvements are in progress, such claim may

and should be presented at the condemnation

proceeding if it is of a nature that it could

reasonably have been foreseen and determined

at the time."

"It is the law that where a breach of a

contract or a tort results in damages to an

established business, in the form of loss of

profits, which would have been derived

therefrom absent such breach of coniract or

tort, the owner of such business may recover

damages from the party causing such loss,

measured by the amount of such loss of

profits. . . . We have already shown that the

same rule applies in condemnation proceedings.

In such proceedings, an established business

is property, and damages thereto in the form

of loss of profits should be taken _ into

consideration in such proceedings."

"Profits which would have been earned by an

established business, absent any interference

therewith, are in their very nature more or

less conjectural, uncertain and _ speculative,

but this does not deprive the party injured by

such interference of his right to recover. In

other words, the difficulties which may lie in

the way of making proof will not defeat a

recovery. It is not necessary that damages in

the form of loss of profits should’ be

susceptible of exact calculation. All that is

required is that they be ascertained with a

reasonable degree of certainty."

The La Grange case, supra, is a_ partial

taking, lost rent fact situation. La Grange appears

to be a post (emphasis added) date of taking fact

APPENDIX B-12

situation; however, it is felt the principles of law

therein governs this set of facts, to wit: In a

partial taking of land, evidence of loss of rental

income prior to the date of taking by the State are

admissible as an element of damages.

Without the presentation of evidence of

Owners' lost rent, the judgment resulted in an

unreasonable and unjust award, and in effect,

constituted the taking of Appellants’ property

without adequate compensation.

PRAYER FOR RELIEF

WHEREFORE, premises, arguments and

authorities considered, Appellants, Charles D.

Travis, et ux and William V. Travis, et ux, pray

that this Honorable Court:

tit is contemplated the State will cite State

vs. Vaughan, 319 SW 2d 349 (Tex. Civ. App. - Austin,

1959, no writ) as authority for the proposition that

the State is not liable for lost rental occasioned

an owner resulting from a tenant vacating the

property voluntarily, having heard of the condemna-

tion. That case is to be distinguished from the

facts herein in that State vs. Vaughan, supra (a) is

a whole taking of property and (b) no physical

invasion by the State occurred.

Sse.

APPENDIX B-13

1. Reverse and remand for re-trial.

Respectfully submitted,

MOORE, LANDREY,

GARTH & JONES

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

BY:

BRACK JONES, JR.

State Bar No. 10975000

BY:

FLOYD A. LANDREY

State Bar No. 11866000

CERTIFICATE OF SERVICE

I hereby certify that on this the 18th day of

December, 1985, a true and correct copy of the

above and foregoing Brief for Appellant was served

on Tyrone Cooper, City Attorney's Office,

Beaumont, Texas.

BY:

BRACK JONES, JR.

APPENDIX C-1

46969

STATE OF TEXAS, IN THE COUNTY

ET AL COURT

vs. AT LAW NUMBER

ONE OF

CHARLES D. TRAVIS, JEFFERSON

ET UX COUNTY, TEXAS

SUPPLEMENTAL STATEMENT OF FACTS

APPEARANCES:

FOR THE PLAINTIFF:

Hon. Tyrone Cooper

Attorney at Law

801 Main Street

Beaumont, Texas 77701

FOR THE DEFENDANTS:

Hon. Floyd Landrey

Attorney at Law

285 Liberty, Suite 1900

Beaumont, Texas 77701

BE IT REMEMBERED that the above cause came

on for trial on July 1, 1985, before the Honorable

Alfred S. Gerson, Judge presiding in the County

Court at Law No. One of Jefferson County, Texas,

and at 12:15 p.m. on July 3, 1985, by agreement to

perfect this Bill of Exception at said time and out

of the presence of the jury, the following

proceedings were had:

APPENDIX C-2

BILL OF EXCEPTION

MR. LANDREY: Comes now the Defendant in

the above cause and in response to a Motion in

Limine granted by the Court prior to trial herenow

submits evidence in relation thereto.

WILLIAM V. TRAVIS,

having been called as a witness by the Defendants,

and having been previously duly sworn by the

Court, testified as follows:

QUESTIONS BY MR. LANDREY:

Q State your name, please.

A William V. Travis.

Q You are one of the Defendants in this cause,

is that right?

A Yes, sir.

Q Mr. Travis, are you familiar with the fact that

the State, through their representatives, contacted

tenants of yours prior to October 28, 19837

w Yes, sir.

Q And in contacting those tenants and as a

direct result of offering them relocation assistance,

did you lose the tenants?

A Yes, sir.

THE COURT: Wait just a minute, Mr.

Landrey.

Aaaten etm tire ate mestiin acs

CE. nl ee eet, ted

APPENDIX C-3

(REPORTER'S NOTE: Whereupon, a

discussion was had off the record.)

THE COURT: Proceed, Mr. Landrey.

Q And did you lose the tenants as a result of

the relocation assistance?

A Yes, sir.

Q And as a result of the loss of those tenants

from the contact of the State prior to the date of

taking, do you have an opinion of how much rent

you actually lost?

A Yes, sir.

Q And would you state how many months?

A Twenty-nine months at a thousand dollars a

month, sir.

Q For a total of?

A With the interest, as of that date was

$33,450.00, sir.

Q And at what interest rate is that?

A Twelve per cent, sir.

MR. LANDREY: Your Honor, I would

tender that evidence at this time.

THE COURT: All right. It's overruled.

COURT REPORTER'S CERTIFICATE

I, Cindy J. Schofield, Official Court Reporter

in and for the County Court at Law No. One of

APPENDIX C-4

Jefferson County, Texas, do hereby certify that

the above and foregoing contains a true and correct

transcription of the Bill of Exceptions in the above

styled and numbered cause, which occurred in open

court and was reported by me.

Cindy J. Schofield

Certified Shorthand

Reporter

‘ Certificate No. 473

Expires: 12-13-86

APPENDIX D-1

NO. C-5588

IN THE SUPREME COURT

OF TEXAS

. 2 © eS ew eB eee eee oe Se, ee. ee

THE STATE OF TEXAS, ET AL

Petitioners

VS.

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX, Appellants

Respondents

S¢..9 F-32229 2 2S: 8-2. eS 2. ee

APPEALED FROM THE COURT OF CIVIL APPEALS

FOR THE NINTH SUPREME JUDICIAL DISTRICT

OF TEXAS AT BEAUMONT

. SOS: 2 828 £2 2 ee Se ee Se See. Se eS

ANSWER OF RESPONDENT TO APPLICATION

FOR WRIT OF ERROR

**e* &*¢ tte ee eee eee ee EK F

MOORE, LANDREY,

GARTH & JONES

BRACK JONES, JR.

FLOYD A. LANDREY

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

ATTORNEYS FOR

RESPONDENTS

APPENDIX D-2

LIST OF PARTIES

The following is a complete list of all parties to

the action:

Plaintiffs: The State of Texas

The City of Beaumont

Defendants: Charles D. Travis

Anna Lois Travis

William V. Travis

Delores T. Travis

~ oes Met ee an et ne et

APPENDIX D-3

INDEX OF CONTENTS

Page

SRE I aioe sass cc ccsa......... i

ergo. us. ........... ii

LIST OF AUTMOMETENS ........................ iii

REPLY TO STATEMENT OF

ee... 5... 0s. iv

REQUEST FOR ORAL ARGUMENT ............ iv

STATEMENT OF THE NATURE OF THE CASE ... 2

REPLY POINT OF ERROR .............. eee e ee eee 2

BRIEF OF THE ARGUMENT ..........ccsscccceces 2

PRAYER FOR RELIEF ...cccccccccccccccccvccees 6

CERTIFICATE OF SERVICE ..........ccceccccees 7

APPENDIX D-4

LIST OF AUTHORITIES

Page

City of La Grange v. Pieratt, et ux,

SUS DB. W. Be Bee CHOM, BGR) 2c ce ciccccsvces 5

State v. Vaughn, 319 S.W.2d 349

(Tex. Civ. App. - Austin, 1959,

OOD SS. hc uae be eo ch 0s Oe 6

Ee Teen Se rN ee “

ula i ae

Pe i oes fobdiciaes

APPENDIX D-5

REPLY TO STATEMENT OF JURISDICTION

Respondents deny that the Supreme Court has

jurisdiction to allow Writ of Error in this case in

that no error of substantive law affecting this case

was committed by the Court of Appeals.

Respondents deny this Court has jurisdiction

of this suit under Subdivision 4 (a case involving a

state revenue) and/or Subdivision 5 (a case in

which the Railroad Commission is a party) of the

Government Code of the Revised Civil Statutes.

REQUEST FOR ORAL ARGUMENT

In the event that the Court grants Petitioners'

Application for Writ of Error, Respondents

respectfully request the opportunity to orally argue

said cause before the Supreme Court.

APPENDIX D-6

NO. C-5588

IN THE SUPREME COURT

OF TEXAS

+t tt tetee eee ee te et et € 2

THE STATE OF TEXAS, ET AL

Petitioners

VS.

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX, Appellants

Respondents

+e ee eete et £e eee ee & ¢

ANSWER OF RESPONDENTS TO APPLICATION

FOR WRIT OF ERROR

TO THE SUPREME COURT OF TEXAS:

Respondents, CHARLES D. TRAVIS, ET UX

and WILLIAM V. TRAVIS, ET UX, Appellants in

Cause No. 09-85-00246-CV in the Court of Appeals

for the Ninth Supreme Judicial District of Texas,

Beaumont, Texas (and Defendants in the County

Court below), respectfully submit this Brief in

support of its position in the instant case, wherein

the Court of Civil Appeals reversed and remanded

the- Judgment of the Trial Court in favor of

Appellants/Respondents herein.

For purposes of clarity, the State of Texas

and the City of Beaumont will be referred to as

Petitioners and Charles D. Travis, et ux, and

APPENDIX D-7

William V. Travis, et ux, will be referred to as

Respondents.

STATEMENT OF THE NATURE OF THE CASE

The opinion of the Court of Civil Appeals

correctly states the nature and result of the case.

The condemnation involved- a partial taking, rather

than a total taking of real property.

REPLY POINT OF ERROR

THE COURT OF CIVIL APPEALS CORRECTLY

DECIDED IT WAS ERROR TO EXCLUDE EVIDENCE

OF LOST RENTAL INCOME (OCCASIONED BY THE

GOVERNMENT'S/PETITIONERS' ACTION IN

RELOCATING OWNERS'/RESPONDENTS' LESSEE

PRIOR TO THE DATE OF TAKING) AS AN

ELEMENT OF DAMAGES TO OWNERS/RESPONDENTS

REMAINING PROPERTY.

BRIEF OF THE ARGUMENT

REPLY POINT OF ERROR (RESTATED)

THE COURT OF CIVIL APPEALS CORRECTLY

DECIDED IT WAS ERROR TO EXCLUDE EVIDENCE

OF LOST REN ¥AL INCOME (OCCASIONED BY THE

GOVERNMENT'S/PETITIONERS' ACTION IN

RELOCATING OWNERS'/RESPONDENTS' LESSEE

PRIOR TO THE DATE OF TAKING) AS AN

ELEMENT OF DAMAGES TO OWNERS/RESPONDENTS

REMAINING PROPERTY.

Petitioners recovered fee title and possession

to a tract of land (See TR P-42 for property

description) located in Beaumont, Texas, and

certain buildings thereon from Owners/Respondents

for the purposes of widening State Highway Spur

380. The condemnation was a partial taking of the

APPENDIX D-8

real property, a whole taking of two (2) buildings

and a partial taking of a third building. (A visual

portrait of the taking is reflected in (DX-2, SF

P-462). Approximately twenty-five (25) feet

(S€-67) on the street side of Owners'/Respondents'

property was taken and all of Building #1 (wherein

Owners/Respondents conducted their family

business) and Building #3 (which was used for

storage); however, only approximately 2.4 feet to

2.6 feet of Owners' Building #2 (DX-2, SF P-462)

was taken. At times material to this suit, Building

#2 was utilized by a Lessee as a business.

The date of taking of the property by the

State/Petitions is October 28, 1983 (TR P-17-18).

Recalling this is a _ partial taking of

Owners'/Respondent' land, the discussion herein

centers around Building #2. 2.4 feet to 2.6 feet of

Respondents’ building was taken (SF P-67).

Essentially, the front wall and awning of the

building which was being used by a Lessee as a

motorcycle shop were involved.

Owners/Respondents complain that PRIOR

(emphasis added) to the date of taking (October 28,

1983), the State contacted the Lessee of Building #2

and eventually relocated the Lessee. In 1980,

Dwain Markham/Lessee rented Building #2 from

Owners/Respondents. Lessee was a licensed dealer

of Harley-Davidson motorcycles. In 1980, Lessee

was contacted by a representative of the State

concerning relocation of his business (SF 419

P-420). The State paid Lessee his_ relocation

expenses (SF P-420) (SF P-423). Markham/Lessee

was told by a State Representative if he moved then

or soon, he would receive relocation assistance. If

Lessee waited until the property was condemned, he

would not qualify for relocation expenses

(SF P-423). Lessee did not contact the State

APPENDIX D-9

(SF P-423) and the first Lessee knew of _ the

relocation program was from the State

Representative (SF P-424).

State witness, Lynwood Walters, the relocation

agent, verifies the above facts in his testimony

(beginning SF P-428) and indicates he had many

discussions with tthe Lessee, Markham, about

relocation prior to the date of taking (SF P-432).

Prior to jury selection, the Trial Court

sustained the State's/Petitioners' Motion in Limine,

excluding Owners'/Respondents' evidence relating to

lost rental income. (TR P-22).

By Bill of Exceptions, Owners' evidence at

trial relating to the lost rental income was tendered

and overruled by the Court. (See Supplemental SF

P-2 and 3.) William Travis, Owner, testified he

lost $1,000.00 per month for 29 months ($33,450.00,

with interest) as a result of the State's contacting

and relocating his tenants prior to the date of

taking (October 28, 1983). The jury should have

been permitted to hear this evidence.

It must be emphasized the law distinguishes

condemnation of the whole of a tract of land from

that where there is only a partia? taking. Here,

part of Building #2 and a part of the real estate

was. taken. Unquestionably, the State, PRIOR

(emphasis added) to the date of taking, invaded

Owners' property, had conversation with Owners'

tenant and in fact, relocated Owners’ tenant (i.e.,

a physical invasion of Owners' property).

In City of La Grange v. Pieratt, et ux, 175

S.W.2d 243 (Tex., 1943), the Court discussed

recovery of lost rentals in a partial taking, as

follows:

APPENDIX D-10

"A right of recovery is established by proof of

injury to some right of property, and the

damages are measured by the extent of the

injury to that right. Thus, a business is

property, and the reasonable damages for

interference with the access to business

property may be measured * * * by the loss of

profits."

* where a part of a tract of land is

condemned for street or road purposes, and

the owner claims consequential damages to the

land left on account of the loss of profits

arising from an established business being

conducted thereon while the road or street

improvements are in progress, such claim may

and should be presented at the condemnation

proceeding if it is of a nature that it could

reasonably have been foreseen and determined

at the time."

"It is the law that where a breach of a

contract or a tort results in damages to an

established business, in the form of loss of

profits, which would have been derived

therefrom absent such breach of contract or

tort, the owner of such business may recover

damages from the party causing such loss,

measured by the amount of such loss of

profits. . . . We have already shown that the

same rule applies in condemnation proceedings.

In such proceedings, an established business

is property, and damages thereto in the form

of loss of profits should be taken into

consideration in such proceedings."

"Profits which would have been earned by an

established business, absent any interference

therewith, are in their very nature more or

less conjectural, uncertain and _ speculative,

APPENDIX D-11

but this does not deprive the party injured by

such interference of his right to recover. In

other words, the difficulties which may lie in

the way of making proof will not defeat a

recovery. It is not necessary that damages in

the form of loss of profits should be

susceptible of exact calculation. All that is

required is that they be ascertained with a

reasonable degree of certainty."

The La Grange case, supra, is a _ partial

taking, lost rent fact situation. La Grange appears

to be a post (emphasis added) date of taking fact

situation; however, it is felt the principles of law

therein governs this set of facts, to wit: In a

partial taking of land, evidence of loss of rental

income prior to the date of taking by the State are

admissible as an element of damages.

Without the presentation of evidence of

Owners’ lost rent, the judgment resulted in an

unreasonable and unjust award, and in effect,

constituted the taking of Appellants’ property

without adequate compensation.

PRAYER FOR RELIEF

1 petitioners cite State vs. Vaughan, 319 SW 2d

349 (Tex. Civ. App. - Austin, 1959, no writ) as

authority for the proposition that the State is not

liable for lost rental occasioned an owner resulting

from a tenant vacating the property voluntarily,

having heard of the condemnation. That case is to

be distinguished from the facts herein in that State

vs. Vaughan, supra(a) is a whole taking of property

and (b) no physical invasion by the State occurred.

APPENDIX D-12

For the reasons stated, Respondents

respectfully submit this Application for Writ of

Error should be refused in that the Application

presents no error which requires reversal.

Respectfully submitted,

MOORE, LANDREY,

GARTH & JONES

285 Liberty, Suite 1900

‘ Beaumont, Texas 77701

(409) 835-3891

BY:

BRACK JONES, JR.

State Bar No. 10975000

BY:

FLOYD A. LANDREY

State Bar No. 11866000

CERTIFICATE OF SERVICE

I hereby certify that on this the llth day of

August, 1986, a true and correct copy of the above

and foregoing Answer in Response to Petitioners’

Application for Writ of Error was served on Tyrone

Cooper, City Attorney's Office, Beaumont, Texas.

BY:

BRACK JONES, JR.

APPENDIX E-1

NO. C-5588

IN THE SUPREME COURT

OF TEXAS

ee; 222 2 *# &€&& 8 F&F 8 SF F

THE STATE OF TEXAS, ET AL

Petitioners

VS.

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX, Appellants

Respondents

eset tt eeee ee & ee See FF FF F

APPEALED FROM THE COURT OF CIVIL APPEALS

FOR THE NINTH SUPREME JUDICIAL DISTRICT

OF TEXAS AT BEAUMONT

** 2222327222727 272224 &€ & & 8

MOTION FOR REHEARING

e*e+ tt tt 2 tt Ft FF Ft F&F F

MOORE, LANDREY,

GARTH & JONES

BRACK JONES, JR.

State Bar No. 10975000

FLOYD A. LANDREY

State Bar No. 11866000

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

ATTORNEYS FOR

RESPONDENTS

APPENDIX E-2

LIST OF ATTORNEYS OF RECORD FOR THE PARTIES

1. The State of Texas and the City of Beaumont:

TYRONE E. Cooper

Assistant City Attorney

City of Beaumont

P. O. Box 3827

Beaumont, Texas 77704

(409) 838-0761

ATTORNEY FOR: PETITIONERS

Charles D. Travis, et ux and William V.

Travis, et ux:

BRACK JONES, JR.

FLOYD A. LANDREY

Moore, Landrey, Garth & Jones

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

ATTORNEYS FOR RESPONDENTS

2. Amicus Curiae Brief filed by:

JIM MATTOX

Attorney General of Texas

JACK HIGHTOWER

First Assistant Attorney General

MARY F. KELLER

Executive Assistant Attorney

General for Litigation

APPENDIX E-3

DUDLEY FOWLER

Assistant Attorney General

Chief, Highway Division

JOHN M. SCHILTZ

Assistant Attorney General

P. O. Box 12548

Austin, Texas 78711-2548

(512) 463-2004

APPENDIX E-4

NO. C-5588

IN THE SUPREME COURT OF TEXAS

se te teee ee Pee ee eee ee 2

THE STATE OF TEXAS, ET AL

Petitioners

‘VS.

CHARLES D. TRAVIS, ET UX AND

WILLIAM V. TRAVIS, ET UX

Respondents

. 06.6 8 6.8.64 69.469 6 8-4:8 8 6 @

MOTION FOR REHEARING

TO THE HONORABLE SUPREME COURT OF TEXAS:

CHARLES D. TRAVIS, ET UX and WILLIAM V.

TRAVIS, ET UX, Respondents/Landowners in this

cause, make this Motion for a rehearing of the

decision of the Court rendered on January 14,

1987, and show:

I.

POINT OF ERROR NUMBER ONE

THIS COURT ERRED WHEN IT HELD LOST

BUSINESS PROFITS ARE NOT RECOVERABLE

AS A SEPARATE ITEM OF DAMAGES OVER

AND ABOVE THE FAIR MARKET VALUE OF

LAND TAKEN AND THE DAMAGES

OCCASIONED TO THE REMAINDER’ BY

REASON OF THE TAKING.

APPENDIX E-5

ARGUMENT AND AUTHORITIES

First, Petitioners’ argument as to lost profits

as a separate item of damage was FIRST advanced

in its Supplemental Application for Writ of Error.

Neither this argument nor the City of Dallas v.

Prioli, 242 S.W.2d 176 (Tex. 1951) was raised,

cited or argued in the record or in the Court of

Appeals. Respondents suggest such theory should

not now be considered for the first time at this

level. Also, in that the State of Texas was a party

to the original proceeding, Respondents fail to see

why the Attorney General can now, as a party, file

an Amicus Curiae Brief.

Second, on appeal, Respondents/Landowners

Point of Error Number Two (Brief for Appellants,

Pg. 3) stated:

"THE COURT ERRED IN EXCLUDING

EVIDENCE OF LOST RENT INCOME

(OCCASIONED BY THE GOVERNMENT'S

ACTION IN RELOCATING OWNERS' TENANT

PRIOR TO THE DATE OF TAKING) AS AN

ELEMENT OF DAMAGES TO THE LANDOWNERS'

REMAINING LAND."

Respondents disagree that their evidence offer

of lost rental income was strictly tendered as a

separate item of damage. The assigned error

suggests such evidence should have been presented

to and considered by the jury in awarding just

compensation. The record does. not_ reflect

Respondents’ evidence was submitted solely as a

separate item of damages. Any consideration by

the jury of such evidence could have been limited

by a jury instruction or by the manner in which

the damage issue was submitted.

APPENDIX E-6

Evidence of lost profits (here rental income)

may be admitted as bearing upon the value of the

land taken or the diminution in value of the

remainder. City of LaGrange vs. Pieratt, 175

S.W.2d 243 (Tex. 1943), City of Dallas vs. Prioli,

242 S.W.2d 176 (Tex. 1951). The Ninth Court of

Appeals, in its opinion, stated:

"We must recall that this is a partial

taking of the Owners' land and partial taking

of a certain buildmg. The record before us

shows that this element of lost rental income,

which resulted from the government relocating

a certain tenant of Owners, prematurely, at

least raised the issue of how much rental loss

the Owners § sustained. From the Bill of

Exception, it is shown that 29 months, at

$1,000.00 per month, was raised by the

excluded evidence, together with interest

amounting to $33,450.00."

"By means of a State's Motion in Limine,

prior to the jury selection, the Court, by its

ruling on said Motion, excluded the Owners'

evidence relating to the lost rental income. A

proper Bill of Exception was developed and

tendered on the lost rental income and was

tendered to the Court and overruled by the

Court. We determine that the jury should

have been permitted to hear this evidence."

Respondents believe the Trial Court's exclusion

of such evidence prevented the jury from

considering evidence which was admissable as to the

value of the land taken or the diminished value of

the remainder.

Third, Respondents' evidence showed the State

contacted the Lessee and in fact, relocated the

Lessee prior to the date of taking. The State paid

APPENDIX E-7

most of Lessee's relocation expenses and assisted

Lessee in moving. These acts. constituted a

physical invasion of Respondents' property, if not

an actual appropriation of the property. State vs.

Vaughn, 319 S.W.2d 349 (Tex. Civ. App. - Austin,

1959, no writ history), Webb vs. Dameron, 219

S.W.2d 581 (Tex. Civ. App. - Amarillo, Er. ref.,

n.r.e.). In City of LaGrange v. Pieratt, 142 Tex.

23, 175 S.W.2d 243 (1943) the Court stated

"_..thus a business is property, and the reasonable

damages for interference with the access. to

business property may be measured * * * by the

lost profits..." The entry on Respondents’ land

and removal of the Lessee was an interference and

accordingly, evidence of Respondents' lost rental

income should have been submitted to the fact

finder for its determination of just compensation.

Respondents’ excluded trial evidence as to lost

rental income occurred prior to the date of taking.

This fact differs from most cases reviewed.

Generally, a landowner seeks recovery for lost

revenue at and/or after the date of taking. In

those situations, this Court has held lost business

profits are not recoverable as a separate damage

item. Accordingly, Respondents believe based upon

their pre-date of taking loss and the pre-date of

taking invasion (removal of Lessee), that this case

is distinguishable from others and this Court's prior

rulings.

Hypothetically, what if the State, under the

instant facts, had prior to the withdrawal by

Landowners of the commissioner's award for damages

or prior to entry of the judgment, if no

commissioner's award was tendered, dismissed its

condemnation proceeding? Certainly, if the State

had dismissed the proceeding, the State's entry

upon Respondents’ land and the removal of the

tenant was an invasion and/or tort which resulted

APPENDIX E-8

in damage to an established business and for which

the landlord could have sought recovery. City of

LaGrange, supra, and 28 Tex. Jur. p. 215, and

authorities there cited. Accordingly, Respondents'

lost rental damages should have gone before the

jury for their consideration.

Respondents suggest the true issue for this

Court's decision to be as follows:

MAY EVIDENCE .OF LANDOWNERS' LOST

RENTAL INCOME OCCASIONED PRIOR TO THE

DATE OF TAKING BE SUBMITTED TO THE

FACT FINDER ON THE ISSUE’ OF JUST

COMPENSATION?

This Court's judgment appears to permit a

condemnor to remove a landowners' lessee, prior to

any legal obligation on condemnor's part, with

immunity from lost rental or other damages resulting

therefrom.

In this case, without the jury's consideration

of Landowners' lost rental income, the judgment

constitutes the taking of Respondents’ property

without adequate compensation.

PRAYER

WHEREFORE, Respondents request that the

Court grant this Motion for Rehearing and that

upon final rehearing, the judgment of the Court of

Appeals be affirmed.

APPENDIX E-9

Respectfully submitted,

MOORE, LANDREY,

GARTH & JONES

BY:

BRACK JONES, JR.

State Bar No. 10975000

285 Liberty, Suite 1900

Beaumont, Texas 77701

(409) 835-3891

ATTORNEYS FOR

RESPONDENTS

APPENDIX E-10

CERTIFICATE OF SERVICE

This is certify that a true and correct copy of

the above and foregoing Motion for Rehearing has

this day been sent to each of the attorneys of

record, as follows:

Tyrone Cooper John M. Schiltz

Assistant City Attorney Assistant Attorney

P. O. Box 3827 General

Beaumont, Texas 77704 P. O. Box 12548

Austin, Texas

78711-2548

SIGNED this 28th day of January, 1987.

BRACK JONES, JR.