# Opposition Brief — Travis v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 818

## Text

(>) ' 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0227%3A2. Public record. Not legal advice.