Petition for Writ of Certiorari — Pilgrim Equipment Co. v. Texas

Supreme Court brief1972

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AUG 22 '°7?

MICHAEL ROBAK. Jh.,CLERK

enttinee — am?

PILGRIM EQUIPMENT COMPANY OF HOUSTON,

Petitioner

Vv.

THE STATE OF TEXAS, ET AL,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Court of Civil Appeals, Houston,

ist Supreme Judicial District of Texas

Lewis W. CUTRER

James E. Hays

Counsel for Petitioner

3901 Westheimer, Suite 301

a> Houston, Texas 77027

Sie ine Bri] Co, One Moin Plosa, No. 1 Main St., Houston, Texes 77002

wee

Corrections --

third line page 14 should

read: ...moved into new

plant), totalled $26,455.00,

as testified to by Guy

Robertson, President of

Pilgrim.

fourth line page 31 under

Conclusion and Prayer should

read: ...of said condemnation

and are damages that the

petitioner...

Opinions Below ........----2+-++eeeeeeereeeee eee e scene

Seeceeit G0 DUMMIES .......-...0.0.002.2s00002000 ;

Questions Presented for Review ......-..---++++++e++00:

Applicable Law ........--0--02seeeee cere cess ee eeeeeees

Statement of Case ..........- cece eee ee eee eeeeceeenees

Argument and Authorities ...........---+++++eeeeeeeeee

Conclusion and Prayer .........----eeeeeeeeeeeeer cress

Appendix A:

Order of Supreme Court of Texas Overruling Petitioner’s

Application for Writ of Error to the Court of Civil Appeals

for the First Supreme Judicial District of Texas, April 26,

DEE, cccccbthheebneseedeeedrereereseeenssssneneee

Order of Supreme Court of Texas Overruling Petitioner’s

Motion for Rehearing of Application for Writ of Error,

May 24, 1972 .......-secee cece ee eeeee cere eececeeee

Opinion of Court of Civil Appeals, Houston, First Supreme

Judicial District of Texas, November 4, 1971 ........--

INDEX OF AUTHORITIES

CASES

Caleb J. Bowers v. Fulton County, Jan. 7, 1966, 146 S.E.2d

884, reh. den., Feb. 2, 1966. Supreme Court of Georgia. .

City of Houston v. E. Huber, 311 S.W.2d 488, Civ. App. of

, cccanrnanddeweeeeeOOReeReNeNe Treks eneeee ee ©

City of Houston v. Lee M. Fox, 429 S.W.2d 201, Civ. App.,

Houston (ist District) ..........-eeeeeeee cree ee eeees

City of LaGrange v. Pieratt, et ux, 175 S.W.2d 243, Sup. Ct.

EE . cnnkccsdeeeeereerserwnseseewnennesse nes

City of San Antonio, et al v. The Congregation of the Sisters

of Charity of the Incarnate Word, Inc., 404 S$.W.2d 333

(Tex. Civ. App., Eastland, 1966) ........--.++-+++++-

City of Teague v. Stiles, 263 S.W.2d 623, Civ. App., Waco

Fitzgerald v. City of Dallas, Civ. App., 34 S.W.2d 682, err.

AE eee ee rrr rt TTT Trt rt cre Tr

Harris County v. Gerhart, 283 S.W. 139, Supreme Court of

Ne i ees nace ORE RE EEASEOKETSEDD COONS CHE

Hart Bros. v. Dallas County, 279 S.W. 111, Com. of App.

Tex. Sec. B, February 10, 1926 ........-+-eee+eeeeee

CASES

Magnolia Pipe Line Company v. City of Tyler, 348 S.W.2d

SORTS SLOSS CARECKRODDCASDKOT DOH OHS OS HO

278 S.W.2d 410, Civ. App. Amarillo, 1954 (reh. den.

1955)

oe oe SESE DREEC OSCE RE ES DOD OSS OS w 66m

State of Texas v. Honorable Ernest A. King, Judge of the

County Court of Ward County, et al, 437 S.W.2d 420,

OPSCLECIOS1RD4O69 60606 6% &% 6 «

CORE LEED CEPTS CASS S ARSE Dee 6S 6a ae doo % ooo

TABLE OF STATUTES

Constitution of the United States

Amendment V

aot ee SCORE CHESGEOEEDEO46 64:66 666 68% 00H

Constitution of the State of Texas

WO SE MY evince euch ou ndedudnaekUkecuxiwxaccece

Vernon’s Annotated Texas Statutes

Art. 3265

ge bubtkcede sodi eet EeLTT LT eh ee

eth ek ky Lt te o 4 Se

Texas Rules of Civil Procedure

Rule 1

ee ee a a ae ae IS PERRI Sak Se ae wo cag ta > a la Tah wd te

_—

IN THE

Supreme Court of the Hnited States

October Term, 1972

PILGRIM EQUIPMENT COMPANY OF HOUSTON,

Petitioner

Vv.

THE STATE OF TEXAS, ET AL,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Court of Civil Appeals, Houston,

1st Supreme Judicial District of Texas

To The Honorable, The Chief Justice And Associate

Justices Of The Supreme Court Of The United States:

Pilgrim Equipment Company of Houston, the Petitioner

herein, prays that a Writ of Certiorari issue to review the

judgment of the Court of Civil Appeals, Houston, Ist

Supreme Judicial District of Texas, entered in the above

entitled case on November 4, 1971.

he rhe EERE LEGO LOEL II LIT IEF ODE EINE CEI SE

—7

Opinions Below

The Opinion of the Court of Civil Appeals, Houston,

Ist Supreme Judicial District of Texas, is unreported and

is printed in Appendix “A” hereto, infra, page A3. The

Orders made by the Supreme Court of Texas with respect

to Petitioner’s Application for Writ of Error to the Court

of Civil Appeals and Motion for Rehearing are printed

in Appendix “A” hereto, infra, page Al. Ronee

Statement of Jurisdiction

The Supreme Court of Texas refused Petitioner’s Ap-

plication for Writ of Error to the Court of Civil Appeals,

Houston, Ist Supreme Judicial District of Texas, in the

case of Pilgrim Equipment Company of Houston v. State,

et al, Cause No. B-3135, as presenting no reversible error

on April 26, 1972. A tiniely motion for rehearing in the

aforesaid case was filed in the Supreme Court of Texas on

May 11, 1972, and by Order of the Court was overruled

on May 24, 1972.

The Supreme Court of the United States has appellate

jurisdiction to review a final judgment or decree rendered

by the highest Court of a state in which a decision could

be had by virtue of 28 U.S.C.A. Section 1257 (3), which

provides, to wit:

“By Writ of Certiorari, where the validity of a treaty

or statute of the United States is drawn in question

on the grounds of its being repugnant to the Constitu-

tion, 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 commissions held or authority exer-

cised under the United States.”

CS,

REI ote

Questions Presented for Review

QUESTION 1: Did the Court of Civil Appeals err in

holding that “the question of adequate compensation was

submitted to the jury” as required by 28 U.S.C.A. Const.

Amend. V, and 28 U.S.C.A. Const. Amend. XIV, Sec-

tion 1?

QUESTION 2: Did the Court of Civil Appeals err by

not reversing and remanding the judgment of the trial

court on account of the error committed by said court in

refusing to allow the introduction of evidence by the defen-

dant (Petitioner) as to moving costs, such costs being

a necessary item of damage in a judgment rendering “just”

or “adequate” compensation to a land owner as a result

of a partial taking for public use through eminent domain,

as required by 28 U.S.C.A. Const. Amend. V?

QUESTION 3: Did the Court of Civil Appeals err by

not reversing and remanding the judgment of the trial

court on account of the error committed by said court in

refusing to allow the introduction of evidence by the defen-

dant (Petitioner) as to cost of re-adapting the remainder

after the taking, such cost being a necessary item of

damage in a judgment rendering “just” or “adequaie”

compensation to a landowner as a result of a partial

taking for public use through eminent domain, as required

by 28 U.S.C.A. Const. Amend. V?

QUESTION 4: Did the Court of Civil Appeals err in

holding “that the trial court did not err in refusing to allow

recovery as separate items of damage, the loss of profit

sustained by Petitioner’s business and the moving costs

and costs of re-adapting the remainder incurred by Pe-

——

titioner as a result of the condemnation of a portion of

its property?

QUESTION 5: Did the Court of Civil Appeals err in

holding that Points 4, 5 and 6 in Appellant’s brief wherein

Appellant contended that it should recover its moving costs

and costs of re-adapting the remainder of its property for

continued use thereof as a laundry and dry cleaning plant

and also its loss of profits, all caused by a partial taking

of its property by Appellees through condemnation, were

points which were not specially presented to the trial

court by the motion for new trial, and this court is not

authorized to consider them?

Applicable Law

Petitioner would now show that the Federal questions

upon which it bases its right to invoke the jurisdiction of

this Court originates and is shown from a proper reading

and interpretation of the following Constitutional pro-

visions, amendments, and state statutes.

1: 28 U.S.C.A. Const. Amend. V, provides, to wit:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to bear witness

against himself, nor be deprived of life, liberty, or

property without due process of law; nor shall private

property be taken for public use without just com-

pensation.”

—

9: 28 U.S.C.A. Const. Amend. XIV, Section 1, provides,

to wit:

“All persons born or naturalized in the United States,

and subject to “he jurisdiction thereof, are citizens

of the United States and of the state wherein they

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizen-

ship of the United States; nor shall any state deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

3: Vernon’s Ann. Tex. Const. Art. 1, Sec. 17, which

provides:

“No person’s property shall be taken, damaged or

destroyed for or applied to public use without ade-

quate compensation being made, unless by the con-

sent of such person; and, when taken, except for

the use of the state, such compensation shall be first

made, or secured by a deposit of money; and no

irrevocable or uncontrollable grant of special privi-

leges or immunities, shall be made; but all privileges

and franchises granted by the legisiature, or created

under its authority shall be subject to the control

thereof.”

4: Vernon’s Ann. Civ. St. Art. 3265, which provides:

“Section 1. The Commissioners shall hear evidence

as to the value of the property sought to be con-

demned and as to the damages which will be sus-

tained by the owner, if any, by reason of such con-

demnation and as to the benefits that will result to

the remainder of such property belonging to such

owner, if any, by reason of the condemnation of the

| property, and its employment for the purpose for

which it is to be condemned, and according to this

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parcel

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When only a portion of a tract or

time of the hearing.

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of a person's real estate is condemned, the

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the court hearing the same may as part of the terms

of granting such motion, make an allowance to the

landowner for reimbursement of his reasonable at-

torney’s and appraiser's fees, shown to have been

such fees or expenses in any case which may be

dismissed upon its motion where such case is subse-

quently refiled, and where the Court is advised by

a Plaintiff in connection with any such motion that

it intends to refile such case, a reasonable time for

such refiling shall be allowed, all orders entered

hereunder are appealable.

Court at Law No. 1 of Harris County, Texas, to condemn

through the right of emient domain 4,918 square feet of

Tract 1 referred to herein as condemnation Tract 31]

of approximately one-third of the first floor of the build.

ing on said Tract 1, leaving a remainder of 8,268 square

feet of land and about iwo-thirds of the first floor of the

building and the entire second floor of said building, and

also condemned 3,229 square feet of Tract 2 together with

the improvements thereon consisting of one-third of the

———E———7=~ —

equipping the remainder of its property in order to be

able to continue the operation of its laundry business

The Judge of said court appointed three special com-

missioners and they had a hearing on March 27, 1969,

and signed an award which was filed with the Judge of

gonna 1969.

fendants, filed objections and exceptions to the award of

the commissioners.

On June 10, 1969, there was deposited into the reg-

istry of the Court the amount of the award of the special

commissioners. Your Petitioner, in turn, withdrew the

amount deposited by appropriate application and orders.

propert

was sustained by the Court (S.F. page

» the Petitioner made a Bill of Excep-

tions in which Guy Robertson, President of Petitions

s of reconstruction and repairs so

nder in order for it to continue to

be used as a laundry and dry cleaning plant, although

on a much smaller scale and with considerably less

services (S.F, pp. 123-154). A renewed objection to the

introduction of this evidence was sustained by the Court

(S.F. p. 153).

In the Bill of Exceptions concerning moving costs and

costs of readapting the remainder of Petitioner’s property,

Guy Robertson testified that the cost of moving ma-

chinery, equipment, etc., from the part taken to the re-

mainder was $5,457.28 (S.F. p. 124). That the cost of

constructing a new superintendent’s office in the down-

stairs remainder to take the place of the superintendent's

office which was taken in the condemnation was $3,565.41

(S.F. pp. 138-139). That the cost of loading and moving

the maintenance department from the part of the property

taken to the new plant on Stella Link was $550.00 (S.F.

p. 126) and the cost of reinstalling of machinery in the

new plant was $1,250.00 (S.F. pp. 126-127). That the

cost of moving the maintenance shop and parts depart-

ment from the part taken to the Stella Link location was

$3,750.00 (S.F. pp. 127, 129). He testified that Pilgrim

purchased a new boiler and a new two-roll ironer for

flat work but did not state the price (S.F. p. 140). He

also testified that the cost of moving office furniture,

adding machines, etc. from the remainder on Almeda to

the new location on Stella Link was $2,947.73 (S.F. p.

141), all of which aggregated something over $17,000.00.

The trial court’s refusal to admit this evidence offered

by Petitioner on moving expenses and costs of readapting

the remainder was specifically presented to it in our

a iain

agi AE

——

Court through Point of Error I, IV, and VI, as set out

in the Brief of Appellant filed therein and made a part

of this Petition for Writ of Certiorari. All points were

overruled by said Court as evidenced by the Opinion

of the Court of Civil Appeals, Houston, Ist Supreme

Judicial District of Texas, which is set out in Appendix

“A”.

Further, your Petitioner would submit to this Court

that the Federal question of “just compensation” for pri-

vate property taken for public use was presented to the

Supreme Court of Texas for due consideration in Points

of Error 1-11, as set out in our Application for Writ of

Error filed in the Supreme Court of Texas. Such Points

of Error were assigned to show error by the Court of

Civil Appeals in not reversing the trial court’s judgment

because of its failure to allow the introduction of any

evidence on the cost of moving from the part taken to

the remainder and to the new plant, and the cost of re-

adapting the remainder. Our Application for Writ of

Error addressed to the Supreme Court of Texas was re-

fused, no reversible error, on April 26, 1972. A timely

Motion for Rehearing was filed in the Supreme Court of

Texas on May 11, 1972, and overruled by the Court on

May 24, 1972.

The loss of profits to Pilgrim Equipment Company of

Houston caused by the temporary interruption and dis-

ruption of its business on account of a partial taking of

its laundry and dry cleaning plant through condemna-

tion, (which was during the time that Pilgrim moved from

the part taken to the remainder, and rebuilt, re-equipped

and readapted the remainder so as to be able to continue

their operation of the laundry and dry cleaning plant al-

though on a smaller scale, which plan proved to be finan-

a . a PRILEP ESSAI OAT EPR I TLE RN

—s

cially unsound and infeasible after several months Op-

erations and while Pilgrim thereafter planned, built, and

moved into a new plant), totalling $26,455.00 as testi-

fied to by Guy Robertson, President of Pilgrim.

He testified that in June of 1969, which was the month

of the partial taking of its property, the losses in its Op-

erations amounted to $1,396.26; and in July, $3,464.36;

in August a loss of $1,981.15; in September a loss of

$2,147.08; in October a loss of $2,069.97: and in De-

cember a loss of $1,095.82; and in January of 1970, a

loss of $1,590.26; and in February a loss of $1,852.85;

and in March a loss of $1,272.35; and in April a loss

of $1,294.28; and in May a loss of $5,741.50, at which

time, Pilgrim shut the operations down at the Almeda

Plant (S.F. pp. 116 to 117). The Court qualified the in-

troduction of such evidence as to loss of profits by in-

structing the jury not to consider such loss of profits,

if any, except as to show how it affected the market value

of the remainder of the property, if it did, after the

taking (S.F. pp. 107, 116). The trial court qualified the

introduction of our evidence as to loss of profits occa-

sioned by this partial taking in response to an objection

made by the attorney for the Plaintiff as to its admissi-

bility. —

Pilgrim Equipment Company of Houston urged this

error to the trial court in its Amended Motion for New

Trial, assignments of error numbers 2, 3, 5, 12 and

13. Such Motion for New Trial was denied and overruled.

Further, Petitioner presented this ground of error to the

Court of Civil Appeals through Appellant’s Points of

Error Nos. 1 and 5, as set out in Pilgrim’s brief filed with

such Court, and made a part of this Petition for Writ of

ee a

Certiorari. These points were overruled by the Court of

Civil Appeals as they affirmed the judgment below.

Such assignments of error 2, 3, 5, 12, and 13, as con-

tained in our Amended Motion for New Trial were further

raised for the consideration of the Texas Supreme Court

in Petitioner’s Application for Writ of Error (P. 6-10a)

filed with that Court and made a part of this Petition for

Writ of Certiorari. The Points of Error 5, 11, and 12,

as contained therein, raised for the Court’s consideration

are germane to Assignments of Error 2, 3, 5, 12 and 13.,,

mentioned above. Pilgrim’s Application for Writ of Error

was refused, no reversible error, on April 26, 1972, by the

Supreme Court of Texas. A timely Motion for Rehearing

in the Supreme Court of Texas was overruled on May

24, 1972.

The case was tried on its merits to a jury starting

September 29, 1970. The charge of the Court, which

included six special issues, was submitted to the jury on

October 3, 1970.

The following special issues were timely requested by

Pilgrim in the Trial Court and refused, to wit:

SPECIAL ISSUE NO. 1: From a preponderance of the

evidence, what do you find was the amount of the loss

of profits, if any, sustained by Pilgrim Equipment Com-

pany of Houston on account of the condemnation by the

State of Texas and County of Harris of Pilgrim’s property

known as Tract Numbers 311 and 335?

Answer in dollars and cents.

Answer:

SPECIAL ISSUE NO. 2: From a preponderance of the

evidence, what do you find was the cost to Pilgrim Equip-

ment Company of Houston, if any, in moving its ma-

chinery, equipment and other personal property from

Tracts 311 and 335, to the remainder of its property,

cause, if you find it was so caused by the State of Texas

and County of Harris in the condemnation of said prop-

erty?

Answer by stating the amount in dollars and cents.

Answer:

SPECIAL ISSUE NO. 3: From a preponderance of the

evidence, what do you find was the amount of the costs,

if any, to Pilgrim Equipment Company of Houston in

moving its machinery, equipment and other personal prop-

erty from the part condemned in the remainder to its

location on Stella Link Road, caused by the State of

Texas and County of Harris, by the condemning of Tracts

311 and 335? Answer by stating the amount, if any, in

dollars and cents.

Answer:

SPECIAL ISSUE NO 4: From a preponderance of the

evidence, what do you find was the cost to Pilgrim Equip-

ment Company of Houston, if any, in adapting the re-

mainder of its property to use in the continued operation

of its laundry and dry cleaning business caused by the

condemnation of Tracts 311 and 335 by the State of

Texas and County of Harris? Answer by stating the

amount, if any, in dollars and cents.

Answer:

——————

17 .

The timely requesting of such special issues shows that

the Federal questions involved in this case were timely

raised by the Petiitoner, Pilgrim Equipment Company of

Houston, in the Trial Court.

At the beginning of the trial, it was stipulated and

agreed by the parties, through their attorneys, that the

date of actual taking of the property under condemnation

was June 10, 1969, and that the only issues remaining

to be adjudicated between the parties were: (1) the

market value as of the date of taking of the land and

improvements thereon owned by said Defendant and being

condemned by Plaintiffs; and, (2) the other damages,

if any, payable to the Defendant, Pilgrim Equipment

Company of Houston, on account of the condemnation

herein (Tr. p. 67).

Under the jury verdict, judgment was entered in favor

of the Defendants for the sum of $61,846.00 for the land

and improvements which were actually condemned and

for the sum of $37,320.00 for the damages to the re-

mainder of the Defendant’s land and improvements, mak-

ing a total of $99,166.00 and the judgment awarded the

land and improvements under condemnation to the Plain-

tiff, the State of Texas, and the judgment provided that

the Plaintiffs, the State of Texas and County of Harris,

recover from the Defendants, Pilgrim Equipment Company

of Houston and Southland Life Insurance Company, the

sum of $45,834.00, plus interest thereon at the rate of

six per cent per annum from date of judgment until paid,

such sum being the amount by which the award of the

special commissioners exceeded the verdict of the jury

and said judgment taxed the cost of the proceedings

before the special commissioners and of the Court against

a PRONE RS MEE POET DRT IES ION EEE LEE I PIE EI I LED

——

the Defendant, Pilgrim Equipment Company of Houston,

since the amount offered by the Plaintiffs to said Defend-

ant of $118,366.00 prior to the institution of suit in

eminent domain was in excess of the verdict of the jury

(Tr. pp. 73-74), said judgment being signed and entered

on December 1, 1970.

Argument and Authority

Pilgrim Equipment Company of Houston, herein called

Petitioner, now prays that this Honorable Court take heed

of our right set up under the Constitution of the United

States and grant this Writ of Certiorari for the following

grounds and reasons:

The right your Petitioner is seeking to protect is granted

in 28 U.S.C.A. Const. Amend. V, wherein it is provided,

“No person shall be deprived of life, liberty or property

without due process of law; or shall private property be

taken for public use, without just compensation.” It is

our contention that the term “just compensation” and

“adequate compensation” include all damages sustained

by the landowner. Therefore, at the very outset, let us

say that the damages as sustained by the Petitioner on

account of this partial condemnation include (1) the

reasonable market value of the land taken, (2) damages

to the remainder, namely, the difference between the

reasonable market value of the remainder immediately

before and immediately after the taking, (3) loss of profits

sustained by the Petitioner caused by the interruption

of its business and other causes on account of the taking,

(4) the cost of readapting the remainder of the property

for continued use thereof as a laundry and dry cleaning

business, and (5) moving and relocating expenses from

e_~—

the part taken to the remainder and later from the re-

mainder to a new location made necessary by the con-

demnation. It is our position that Petitioner is legally

and lawfully entitled to recover in this cause its loss of

profits, moving costs, and costs of readapting the re-

mainder of its property as separate items of damage and/

or consequential damages suffered by said Petitioner on

account of said partial taking of its property through

condemnation. However, in the alternative, the evidence

introduced by Petitioner in its Bill of Exception (SF.

123-154) concerning moving costs and cost of readapting

the remainder of its property should have at least been

admitted by the trial court for consideration by the jury

in determining the market value of the remainder of

Petitioner’s property immediately after the taking. How-

ever, we would submit to this Court that any such limita-

tion or qualification made by a Trial Court so as to

implement this alternative would not afford the Petitioner

just and adequate compensation as guaranteed to it under

and by virtue of the aforementioned articles of the Federal

and State Constitutions.

The ultimate question for consideration by this Court

is the meaning and scope of the phrase “just compensa-

tion” as it is contained in our Federal Constitution. We

believe that the authorities in the State of Texas uniformly

hold that in condemnation cases the landowner is to be

made whole. In other words, he is to be placed in just

as good a position after the condemnation as he was

before.

Under the case of City of Houston v. Lee M. Fox, 429

S.W.2d 201, Civ. App., Houston (1st District), the Court

stated the following well established principle of law:

pee

FA A ibis 7 “3 WTAE Y ates Lay eee ete we

S.W.2d 537. (Civ. App., Texarkana), among other things,

says:

the right which it had to use and operate its property as

a laundry and dry cleaning plant necessary to serve the

160 retail stores and pick-up stations which it owned

and operated in and around the City of Houston.

In Northern Natural Gas Company, Appellant, v.

Claude Johnson, et al, Appellees, 278 §.W.2d 410, Civ.

App., Amarillo, 1954 (reh. den. 1955), the general prin-

ciple is, of course, well established that just compensation

in condemnation must be measured by the owner's loss

and not by the taker’s gain.

Hart Bros. v. Dallas County, 279 S.W. 111, Commis-

sion of Appeals, deals with the partial taking of the land-

owner's property through condemnation upon which, at

the time of taking, there was being operated an established

business. The condemnee made a case of a temporary in-

terference for a definite time with such business whereby

they sustained a loss of profits and were compelled to

make necessary improvements, in amounts easily ascer-

tainable. They continued to use their business as adapted

to the change in conditions (all of which fits like a glove

the facts in the instant case). The Court in that case held:

sum as will compensate them for the loss of the

profits they would have derived and the expenditures

The evidence in the instant case clearly shows that on

account of the partial taking of Petitioner's plant, it was

necessary for it to spend several thousands of dollars mov-

—— ae

mainder were definitely testified to by the President of the

Petitioner and should be included in a landowner’s re-

covery of “just compensation” for private lands taken for

public use. ,

The cornerstone case in this State concerning recovery

of loss of profits to a landowner’s business caused by tem-

porary obstruction of a highway (which we think likewise

applies to the facts in the instant case, there being a

partial taking of the Petitioner's property and loss of prof-

its to its business) is the case of City of LaGrange v.

Pieratt, et ux, 175 S.W.2d 243, Supreme Court of Texas,

the opinion of which was written by the very eminent and

learned Justice Critz.

This was a suit by Pieratt and wife against City of

LaGrange to recover loss of profits in Plaintiff's business

caused by temporary obstruction of a highway. The Plain-

tiff was the owner and operator of a gasoline filling sta-

tion. The Plaintiff's loss was occasioned by the temporary

obstruction of the highway for several months while it

was being widened, paved and otherwise reconstructed

and improved by the State Highway Department acting

under authority of a contract with the City. Under such

contract, the State Highway Department did the work and

paid the cost of improvements. It is interesting to note

ages in the amount of $100.00 for moving house, $100.00

for moving tanks, $20.00 for rebuilding toilet, $50.00 for

above report (meaning report

“As we interpret the

commissioners ) ,

the commissioners

Supreme Court of Texas noted:

$150.00 for placing gravel and $100.00 for land

and damages. The

lights,

say antg

il ny

. Lae

7 ‘iil i?

aH aid

976-978.

be measured * * *

” 16 Tex. Jur. pp.

= ee SE

access to business property may

covery of consequential damages sustained by him as a

result of a partial taking, would be a careful reading of

Vernon’s Ann. Civ. St. Art. 3265, which is set out in

full at Pages 5-7 of this Petition.

It should be noted that under Section 2 thereof, which

deals with the partial taking of a tract, “the commissioners

shall estimate the injuries sustained and the benefits re-

ceived thereby by the owner; whether the remaining por-

tion is increased or diminished in value by reason of such

condemnation, and the extent of such increase or dimi-

nution and shall assess the damages accordingly.” (Em-

phasis ours) In this situation, that of a partial taking, the

above mentioned statute speaks of “injuries or benefits”

received by the owner and not diminution in the market

value of the land condemned. In the face of this Article

and 28 U.S.C.A. Const. Amend. V, we would urge this

Court to recognize that the Court of Civil Appeals, Hous-

ton, Ist Supreme Judicial District of Texas, erred by re-

fusing to reverse and remand the judgment of the trial

court on account of the error committed by said Court

in refusing to allow the introduction of evidence timely

presented by your Petitioner, as to moving costs and cost

of readapting the remainder of the property so as to render

‘t useful to Petitioner. We contend that such expenses

constitute damages which have accrued to the landowner

(Petitioner) as a result of this partial taking. Further, we

would contend that the question of “adequate” or “just”

compensation was not properly submitted to the jury be-

cause of the qualification placed upon the introduction of

evidence relating to the loss of profits sustained by your

Petitioner. Such qualification being to the effect that such

evidence would be limited in its probative force, i.e., only

as to its bearing, if any, on the market value of the re-

mainder immediately after the taking. We would urge to

this Court that this qualification and limitation on the

probative force of this evidence (loss of profits) has op-

erated to deny your Petitioner a right set up under the

Federal Constitution.

City of San Antonio, et al, v. the Congregation of the

Sisters of Charity of the Incarnate Word, Inc., 404 S.W.

2d 333 (Tex. Civ. App., Eastland, 1966). In this case the

Court cited, State v. Waco Independent School District,

364 S.W.2d 263 (writ ref., n.r.c.) with approval:

“[8] In the Waco Independent School District case,

there were special damages for which the market

value rule would not provide adequate damages. Un-

der State and Federal Constitutions, a landowner

whose land or a portion thereof is taken is entitled

[9, 10] We do not believe that it was a holding in

the Waco case, even by implication, that the owner

of the private school whose land is condemned is,

under the provisions of Article 3265, limited to a

recovery under the market value test if the evidence

shows that such test will not adequately compensate

the owner for special damages suffered. In our opin-

ion, a private school such as Appellee, the same as

a public school, is not by reason of Article 3265

denied the right to adequate compensation. * * *

We believe that the proper scope of this Constitutional

right was determined by the Supreme Court of Georgia

a cameo

in Caleb J. Bowers v. Fulton County, Jan. 7, 1966, 146

S.E.2d 884, reh. den., Feb. 2, 1966. Herein the Court

decided that the provision in the Georgia Constitution

providing for just and adequate compensation for private

property taken through eminent domain means that the

condemnee is entitled to be compensated for all damages

done to his property and expenses caused by the con-

demnation proceeding as separate and distinct items from

the amount which he is entitled to recover as actual value

of his building.

It is also interesting to note that the Texas legislature

has enacted at least two articles which recognize moving

expense as a proper item of recovery in an eminent do

main case.

Section 7 of Article 3265, RULE OF DAMAGES, was

added by Acts 1969, 61st Leg. p. 2293, Ch. 772, Section

1, eff. September 1, 1969, is one such enactment, set out

verbatim on page 7 of this Petition for Writ of Certiorari.

In our opinion, Section 7 of Article 3265, V.A.T.S., does

not apply in this case for the reason that the section spe-

cifically states that it shall not apply in any condemnation

proceeding whether before special commissioners or the

court where the owner is entitled to reimbursement for

moving expenses under other existing law. It is our con-

tention that the Petitioner is entitled to reimbursement for

moving expenses under both State and Federal Constitu-

tions and the case law of this State. If, however, it should

be concluded that such moving expenses were only recov-

erable but by virtue of this Section, how do we reconcile

the trial court’s refusal to admit evidence as to moving

costs and the holding by the Court of Civil Appeals that

your Petitioner failed to request an issue necessary for

SE I ee

recovery under Section 7. As a result of the trial court’s

exclusion of this evidence, there was no issue of fact

relative to moving expenses before the jury for their de-

termination. Such being true, your Petitioner was deprived

of “just compensation” for its lands taken for public use

and “due process of law” under our Federal Constitution.

Petitioner would also point to Article 6674n-4 of

V.A.CS., (now Article 3266-b) regarding moving ex-

penses and state that same is not mandatory, but to the

contrary, is merely permissive and left entirely to the

discretion and will of the State Highway Commission

as limited by the Federal Highway Relocation Assistance ~

Program. Any decision made under this statute can be

arbitrary and the landowner cannot do anything about it.

In short, such statute does not afford Petitioner due

process of law or any procedure by which it can legally

recover any moving costs or expenses whatsoever. Such

statute should not and cannot be construed to deprive

your Petitioner of its legal rights under the Federal and

State Constitutional provisions to have and recover just

and adequate compensation. It is significant to point out ©

that neither of the Articles of the statutes mentioned pro-

vide for any reimbursement or compensation for the

costs of repairing, rebuilding, or readapting the remainder

of the property where there has been a partial taking.

Petitioner now contends that moving costs, costs of

readapting the remainder for future use in the same man-

ner as before the taking, and loss of profits sustained by ~

condemnee as a result of a partial taking are recoverable

as a separate item of damage. These are items of expense

which were incurred by the Petitioner as a result of the

taking. The essence of the whole cause in the trial court

ee ee,

was the amount of damages sustained by the landowner.

The Court of Civil Appeals held that the above items

were not specially plead, so as to show that the damage

sought was within the jurisdiction of the County Court at

Law in which the case was tried. We urge that such

standard does not apply to pleadings in a condemnation

case. City of Houston v. E. Huber, 311 S.W.2d 488.

Court of Civil Appeals of Texas:

“It is not necessary for a property owner, objecting

to an award of the Commissioners in condemnation

proceedings, to particularize as to his damages. See

Fitzgerald v. City of Dallas, Texas Civ. App., 34

S.W.2d 682, err. ref. It was not necessary, therefore.

for the objections filed by any of the landowners to

specify the damages sustained by such owner, or

by Appellee, E. Huber.”

State of Texas v. Honorable Ernest A. King, Judge of the

County Court of Ward County, et al., 437 S.W.2d 420.

Court of Civil Appeals of Texas:

* * * “These cases and others have held, in the

State of Texas, that strict or formal pleading re-

quirements do not apply to objections which appeal

condemnation commission proceedings. The suffici-

ency of objections, therefore, is not measured by the

same standards applicable to pleadings in other

causes of action. City of Teague v. Stiles, 263 S.W.

2d 623 (W. ref. n.r.e.). * * *”

These last two cases discussed hold that it is not neces-

sary for a property owner to particularize his damages

in condemnation proceedings and, furthermore, ‘that the

sufficiency of objections to the award of the special com-

missioners is not measured by the same standards appli-

cable to pleadings in other causes of action. Further,

Petitioner would point out to this Honorable Court that

no objection was ever raised against the introduction of

our evidence on moving costs and costs of readapting the

remainder by Plaintiffs on the grounds of “no pleadings”.

Our offer of such evidence was excluded and a Bill of

Exceptions was promptly made. The evidence offered by

your Petitioner as to loss of profits was qualified and

limited by the Court. Petitioner would argue that its

grounds for appeal have been adequately preserved in

the trial court and specifically brought to attention. Peti-

tioner would submit that the following actions: (1)

offering such evidence, (2) making a Bill of Exceptions,

and (3) requesting special issues on the same, were surely

enough to place the trial court on notice as to our con-

tentions and exceptions with respect to the exclusion of

such evidence. Further, the Court of Civil Appeals has

held that our points of error IV, V and VI, as contained

in Appellant’s brief, were not specifically presented to

the trial court by a Motion for New Trial and thus could

not be considered upon appeal. We would urge that such

points were presented to the trial court in our Amended

Motion for New Trial through Assignments of Error

2, 3, 5 and 13, as contained in the Amended Motion for

New Trial. We believe that Points of Error I, IV, V and

VI fairly and reasonably point out that the judgment

rendered by the trial court was inadequate because “just

compensation” was denied through the trial court’s re-

fusal to admit testimony offered during the trial on mov-

ing costs and costs of readapting the remainder, as well

as their qualifying the evidence admitted on loss of

profits. This ground of appeal was presented to the trial

court in our amended Motion for New Trial and to the

—

Court of Civil Appeals in Appellant’s brief. This inter-

pretation of our Points of Error is required after a proper

reading of Rule 1 of Texas Rules of Civil Procedure

entitled “Objective of Rules” which provides, to wit:

“The proper objective of Rules of Civil Procedure

is to obtain a just, fair, equitable and impartial ad-

judication of the rights of litigants under established

principles of substantive law. To the end that this

objective may be attained with as great expedition

and dispatch and at least expense both to the litigants

and to the State as may be practicable, these rules

Shall be given a liberal construction.” (Emphasis

ours. )

Rule 321, Texas Rules of Civil Procedure, says, “Each

ground of a motion for new trial * * * shall briefly refer

to that part of the ruling of the Court, charge given or

refused, admission or rejection of evidence or other pro-

ceeding complained of in such way that the point of

objection can be clearly identified and understood by the

court.” Certainly in our case the points of objection

raised by the Defendant, Pilgrim Equipment Company of

Houston, were clearly identified by the Assignments of

Error heretofore referred to and there can certainly be

no question but that they were understood by the court.

In closing it should be pointed out that the term

“property” as contained in the Federal Constitution has

been employed to denote the group of rights inhering in

a citizen’s relation to the physical thing, as the right to

possess, use and dispose of it. (emphasis ours). Its mean-

ing has been expanded beyond its untechnical sense of

2. United States v. General Motors Corp., 65 S.Ct. 357, 323 U.S.

373.

CaaS ROSS IEAM PARDEE SEIS IETS |

- va aide ei ahaa nab

the physical thing to which the citizen exercises rights

recognized by law. Your Petitioner has been dispossessed

of these “rights” which are inherent in its relation to the

physical thing taken, i.e., the land. The loss of these

“rights” has left Pilgrim Equipment Company of Houston

with a deficit that is not remote or speculative, is not

divorced from the land taken, and which can be ade-

quately measured in dollars and cents. The taking of this

fee simple interest in lands owned by your Petitioner has

left it without such interest and all natural advantages

which would flow from such ownership. Our only recourse

is to look. to the Supreme Law of our land for just

compensation. ~

Conclusion and Prayer

The damages sustained by Petitioner in the way of

moving costs and costs of readapting the remainder and

loss of profits were foreseeable before and at the time

of said condemnation and/or damages that the Petitioner

is legally entitled to recover under and by virtue of the

provisions of the State and Federal Constitutions and

statutes of the State of Texas concerning condemnation

and eminent domain and the court decisions. When

private lands are taken for public use, the landowner

must be made whole. The burden of public improvements

must be placed on the shoulders of the general public and

taxpayers.

We would suggest to the Court that this case, as

presented in this Petition for Writ of Certiorari, is a

prime example of a situation wherein the inadequacies

of the “market value test” for, compensating landowners

in condemnation proceedings are exposed. The Constitu-

—

tional dictates of “just compensation” for private lands

taken for public use necessarily implies some flexibility

in application. We believe that a partial taking of land

upon which is maintained and operated a successful busi-

ness is such a situation which calls out for a more liberal.

flexible and just application of this Constitutional right.

The trial court committed error by refusing to allow

the Petitioner to introduce evidence as to moving costs

and to the cost of reconstruction and readapting the

remainder of Petitioner’s property necessary for the con-

tinuation of the operation of its laundry and dry cleaning

plant and the Court of Civil Appeals erred by not re-

versing and remanding the judgment of the trial court

on account of said error.

The trial court erred by qualifying and limiting the

evidence introduced by the Petitioner as to loss of profits

since such loss occurred during the temporary interruption

of Petitioner’s business on account of the partial taking

of its property by condemnation and the Court of Civil

Appeals erred by not reversing and remanding the judg-

ment of the trial court on account of such error.

The Court of Civil Appeals erred in holding that the

question of adequate compensation was submitted to the

jury since there was not included in the question of

adequate compensation moving costs or costs of readapt-

ing the remainder of Petitioner’s property and could not

have been so submitted as the trial court refused to allow

such evidence to go before the jury.

The Court of Civil Appeals erred in holding that the

loss of profits cannot be recovered as an item for damage

separate from that resulting from the depreciation in

value of the remainder.

WACRADN SPRL ee OF

Wherefore, Petitioner respectfully prays that this Peti-

tion For Writ of Certiorari to the Court of Civil Appeals,

Houston, Ist Supreme Judicial District of Texas be

granted, and upon such hearing, that the Court grant

Petitioner’s Writ and the relief sought therein.

Respectfully submitted,

Lewis W. CUTRER

JAMES E. Hays

Counsel for Petitioner

3901 Westheimer, Suite 301

Houston, Texas 77027

No. B-3135

May 24, 1972

Pilgrim Equipment Company )

of Houston )

) From Harris County

vs. ) First District

)

The State of Texas )

Petitioner's motion for rehearing of application for writ

of error having been duly considered, it is ordered that

said motion be, and hereby is, overruled.

I, GARSON R. JACKSON, Clerk of the Supreme Court

of Texas, do hereby certify that the above and foregoing

is a true and correct copy the orders of the Supreme Court

of Texas in the case numbered and styled as above, as

the same appears of record in the minutes of said Court

under the dates shown.

WITNESS my hand and the seal of the Supreme Court

of Texas, at the City of Austin, this, the 3rd day of August,

1972.

GARSON R. JACKSON, Clerk

By: /s/ Eugene Cervenka, Deputy

Eugene Cervenka

Affirmed, and Opinion filed November 4, 1971.

TFC/b

NO. 15,811

PILGRIM EQUIPMENT COMPANY

OF HOUSTON, Appellant,

vs.

THE STATE OF TEXAS ET AL, Appellees.

——————

Appeal from County Civil Court at Law

Of Harris County

—_—_—-_

This is a condemnation case. Judgment was entered

based on a jury verdict. The land owner has appealed,

Six special issues were submitted to the jury. The land

was taken from two separate tracts under single owner-

ship. The issues related to the market value of the

taken and the damage to each of the tracts resulting

the taking.

& dE

The second and third points are based on the seventh

assignment of error in appellant’s motion for new trial

reading: “The Court erred in not setting aside the answers

of the jury to the Special Issues since such answers were

inconsistent, incompatible and in sharp conflict with one

another and contrary to the preponderance of the evidence

introduced.”

Rule 374, T.R.C.P., provides that a ground of error

not distinctly set forth in the motion for new trial shall be

considered as waived.

The assignment of error is directed to the entire verdict.

It does not point out the particular answers that are

alleged to be in conflict or inconsistent. The alleged error

brought to the attention of the trial court by the assign-

ment was the failure to set aside the verdict, which would

have required a new trial. The attention of the court was

not specifically directed to the point now raised, i.e., that

the answers to Special Issues 1 and 2 are conflicting and

inconsistent. No conflict or inconsistency is apparent from

pellant’s Point 2 is without merit, and cannot be con-

sidered. Garvel v. Young, 407 S.W.2d 518 (Tex. Civ.

App.—Houston 1966, writ ref., n.r.e.).

Since appellant, in the Amended Motion for New Trial,

failed to state that the evidence supporting the jury an-

swer to any specific special issue was either insufficient

or against the great weight of the credible evidence, this

court has no jurisdiction to consider Point 3. Darryl v.

Ford Motor Co., 440 S.W.2d 630 (Tex. 1969).

By Point No. 1 appellant contends that the judgment

based on the jury verdict did not allow appellant just

and adequate compensation required by the Constitutions

of the United States and the State of Texas. The Constitu-

tion of the United States, Amendment V, requires pay-

ment of “just” compensation for property taken for pub-

lic use. The Constitution of the State of Texas, Art. 1,

Sec. 17, requires “adequate” compensation for property

“taken, damaged or destroyed for or applied to public

use.”

The trial court has entered judgment for appellant

in the amount found by the jury in answer to issues sub-

mitted in the language suggested by State v. Carpenter,

89 S.W.2d 194 (Tex. 1936). The question of “adequate

compensation” was submitted to the jury. Brunson v.

State, 444 S.W.2d 598 (Tex. 1969).

Since the answers made to these issues are supported

by credible evidence, this court cannot substitute its

opinion of the value of the property for that of the jury.

By this point appellant does not present the question that

the answers are contrary to the great weight and pre-

ponderance of the evidence. Point No. 1 is too general

to constitute a basis for the reversal of the judgment. If

the judgment is in fact inadequate, that result must have

followed from the error of the trial court refusing to ad-

mit competent testimony offered at the trial; from the

error of the trial court in manner of submitting the case

to the jury; from the failure of the jury to answer the

issues submitted in accordance with the weight and pre-

ponderance of the evidence; or from some such specific

matter. It is appellant's burden to determine the speci

matter which he contends constituted error and probably

resulted in the rendition of an improper judgment. This

matter must then be presented in accordance with the

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to comply with the briefing rules. Rule 418,

T.R.C.P. Neither of the points complains that the court

erred in admitting evidence offered by appellant with im-

proper qualifications, nor do they complain that the trial

court erred in refusing to submit properly requested

issues. The points are germane to the assignments of error

only in the sense that the matters complained of in the

assignments of error made it impossible for appellant to

secure jury findings on which to base a judgment for the

specific additional damages he contends he was entitled

to receive under the Constitutions of the United States

and the State of Texas. These points were not specifically

presented to the trial court by the motion for new trial,

and this court is not authorized to consider them. Wagner

y. Foster, 341 S.W.2d 887 (Tex. 1960); Wood v. State,

434 §.W.2d 149 (Tex. Civ. App.—Corpus Christi 1968);

Daniels v. Daniels, 414 S.W.2d 207 (Tex. Civ. App.—

Amarillo 1967); Baker v. Sturgeon, 361 S.W.2d 610

erty and represented just compensation to which they

were legally entitled.

“Fifth — The Court erred in refusing to submit to the Jury

the Special Issues which were duly and timely pre-

sented to the Court by the Defendants concerning

moving cost suffered by the Defendants and also the

cost of adapting the remainder of Defendants’ prop-

erty so that they could continue to operate a laundry

and cleaning establishment thereon and alse the loss

of profits sustained by said Defendants on account

of such partial taking, which under the preponder-

ance, if not all of the evidence introduced, show

that due to such partial taking the Defendants had

to relocate their business at substantial cost, expense

and damages.

—_— Me CT AR SPT — —— 2

Pb aaa =se7 eo

(Tex. Civ. App.—Texarkana 1962); City of Caroliton

v. Rawlins, 291 S.W.2d 955 (Tex. Civ. App.—Eastland

1956, error ref.).

A consideration of appellant's points on the merits leads

to the conclusion that the trial court did not err in refus-

ing to allow recovery as separate items of damages the

loss of profits sustained by appellant’s business, or the

moving costs incurred by appellant, as the result of the

condemnation of a portion of appellant’s property.

As a consequence of the taking on Tract 311 the

building housing appellant's laundry and dry Cleaning

plant was severed, about 4,900 Square feet of the building

being within that portion of the tract taken, leaving about

8,000 square feet on the remainder. Equipment necessary

to the operation of the entire plant was located within the

part taken, including the steam boiler, water softener, air

conditioning equipment, and a large flat press. Obviously

a new wall would be required if the operations in the

plant were to continue. At the time of this trial the build-

ing itself had not been severed. However, appellant had

severed the water, steam, air conditioning ducts, and elec-

trical lines prior to trial, and had removed all personal

property from the area taken. This was necessary by rea-

son of the fact that appellee had deposited the commis-

sioners’ award in the registry of the court.

There was testimony that the highest and best use of

the property on June 10, 1969, the date of taking, was

the use then being made of the property, that is, use of

the property as a laundry, main plant and central offices,

maintenance and carpenter shop, servicing a chain of

160 retail laundry and cleaning outlets. Both tracts of

land, Tract 311 and 335, served as an over-all unit in

ora,

————

the operation of the business. The buildings on both tracts

had been adapted to a special use where every square foot

served a purpose. There was other testimony by expert

witnesses produced by appellee that the highest and best

use for the property was for laundry and dry cleaning

purposes.

Appellee permitted appellant four months after the

date of the taking to remove his business operations from

that portion of the building taken. The business was dis-

rupted during this period, and to some extent thereafter.

Pilgrim’s president testified that the remainder was not

large enough for the dry cleaning assembly line, so that

this operation was transferred to the Pasadena plant.

There was not enough space for the large flat work ironer

and a smaller one was installed in the remainder. This

equipment would not take care of the work, and there

was not enough storage space in which to store both the

incoming material and the completed work. The com-

pany had a smaller plant on Stella Link, which. it con-

tinued to operate, but it discontinued this type work at

the subject property because it was not profitable in the

small scale operation. At the time of the trial he had not

been able to locate a suitable property for a new plant

capable of handling the flat work operations.

By the end of the four month period the administrative

offices, the carpenter shop, parts department, the labor

office and the maintenance department had been trans-

ferred to another location. These activities were operated

from the same location for economic reasons and there

was not sufficient room in the remainder for all of them.

The closing of the assembly lines in the Almeda plant

made it necessary to discontinue most of the home pick-up

and delivery routes.

_——_——_ Piper es

Al10

The operation continued at the Almeda plant in the

remainder at a reduced scale until it was abandoned for

alll purposes except as a retail pick-up and delivery station.

Appellant had 160 different retail outlets. Prior to the date

of taking the Almeda plant did flat work for 75% to 80%

of the outlets. Appellant acquired land at 6723 Stella Link

for its new main plant. It took about eighteen months to

fimd a desirable location, purchase it, get some zoning re-

strrictions removed, construct a building, install the neces-

sary equipment, and begin operations. This plant was not

designed for the flat work operation. Mr. Robertson, ap-

pellant’s president, testified that by reason of the con-

demnation in his judgment it was no longer feasible to

continue to operate the Almeda plant.

Appellant was permitted to introduce testimony as to

the profits and losses sustained by the Almeda plant froii

January, 1969, to and including May, 1970, at which time

the plant was shut down except for the retail operation.

Substantial profits were shown for each month prior to

the date of taking, and substantial losses were shown for

each month after the date of taking. The trial court in-

structed the jury that the evidence concerning the profits

and losses was admitted not as evidence tending to sustain

such profits or losses as a separate item of damages, but

that such evidence was admitted “as affecting the market

value, if it does, of the remainder of the land and im-

provements on the subject property after the taking for

the uses to which that remainder was adapted and was

being put, and for that purpose only.” Appellant made

no objection to this instruction, and cannot now be heard

to complain of this action of the court. Substantially the

same instruction was included in the court’s charge. If

objections were made to the court’s charge, they were not

included in the transcript.

All

Appellant's Requested Issue No. 1, refused by the court,

reads:

“From a preponderance of the evidence, what do you

find was the amount of the loss of profits, if any,

sustained by Pilgrim Equipment Company of Hous-

ton on account of the condemnation by the State of

Texas and County of Harris of Pilgrim’s property

known as Tracts Numbers 311 and 335?”

While appellant has no point complaining of the failure

of the trial court to submit this special issue, under his

point charging the court with error in entering the judg-

ment herein because of the failure to allow damages by

reason of lost profits, he points to the action of the court

in limiting the evidence as above set out and in refusing

the special issue. These matters were sufficiently preserved

in the motion for new trial. The claimed error in limiting

the testimony was waived by appellant's failure to object

to the instructions limiting the purpose for which the jury

could consider the evidence relating to profits and losses at

the various times such an instruction was given. King v.

Roberts, 84 S.W.2d 718 (Tex. 1935); Texas-Mexican Ry.

Co. v. Creekmore, 204 S.W. 682 (Tex. Civ. App.—San

Antonio 1918, err. dism’d); Mayberry v. Campbell, 356

S.W.2d 827 (Tex. Civ. App.—Amarillo 1962, writ ref.,

n.r.e.).

The requested issue was not a proper inquiry. It does

not restrict the jury to a finding of profits lost by reason

of a temporary disruption of its business. It was appellant's

contention that by reason of the taking the property was

—

Al2

no longer suitable for the use to which it had been de-

voted prior to the taking. Evidence of losses caused by

permanent injury to the business was before the jury. Such

a loss cannot be recovered as an item of damage separate

from that resulting from the depreciation in value of the

remainder. State v. Zaruba, 418 S.W.2d 499 (Tex. 1967):

City of Dallas v. Priolo, 242 S.W.2d 176 (Tex. 1951);

Huckabee v. States, 431 S.W.2d 927 (Tex. Civ. App.—

Beaumont 1968, writ ref., n.r.e.); Reilly v. State of Texas,

382 S.W.2d 116 (Tex. Civ. App—San Antonio 1964,

ref., n.r.e).

The refusal of appellant’s special issue designed to

establish the expense of removing the personal property

from the property taken to other property belonging to

appellant was not error. These expenses might well result

in a temporary loss of profit for the business. Unless com-

pensation can be recovered for these items in that context

(a question we do not decide here), it cannot be recov-

ered in this action. These special items of damage were

not specially plead, consequently it was not shown that

the damage sought was within the jurisdiction of the

County Court at Law in which the case was tried. These

items may well constitute “damage” to appellant, but the

cost of removing the personal property does not constitute

“damage” to appellant’s “property”. Jurisdiction of this

cause of action is statutory. Article 3265, V.A.C.S., pre-

scribes “market value” as the test of adequate compen-

sation in condemnation proceedings. City of San Antonio

v. Congregation of the Sisters of Charity of the Incarnate

Word, Inc., 404 S.W.2d 333 (Tex. Civ. App.—Eastland

1966, no writ). Neither Sec. 17, Article 1 of the Con-

stitution, nor Article 3265, V.A.C.S., authorizes the Coun-

ty Court to entertain a cause of action for damages in a

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condemnation case other than such damage to “property”

as results from a taking for public use, subject to the ex-

ception contained in Sec. 7 of Art. 3265 specifically au-

thorizing the recovery of moving expenses where the

owner of land is “actually and physically displaced and

permanently moves from. . . his place of business and

limiting such recovery to the reasonable expense of mov-

ing the property, not to exceed $5,000.00 or the market

value of such property.” Appellant failed to request issues

necessary for a recovery under Sec. 7. State v. Carpenter,

89 S.W.2d 979 (Tex. 1936); Kennedy v. City of Dallas,

201 S.W.2d 840 (Tex. Civ. App.—Dallas 1947, writ

ref.); State v. Vaughan, 319 S.W.2d 349 (Tex. Civ. App.

—Austin 1959, no writ).

Appellant’s Point 7 does not present error. At several

places in the record testimony was presented without

objection that appellant had listed the remainder property

for sale with the wall reconstructed on the south re-

mainder. When a witness was asked “how much the real

estate dealer was trying to get for the property,” an ob-

jection was promptly sustained.

Appellant contends that the case must be reversed by

reason of certain statements made by appellees’ attorney

during jury argument, contending that such argument was

so prejudicial that its effect could not have been removed

by an instruction from the trial judge. The attorney asked

the jury “to be just as fair to the taxpayers of Harris

County and the State of Texas as to the stockholders of

Pilgrim Equipment Company.” The arguments of counsel

were not transcribed and appellees do not concede that

this statement was made. An informal bill of exception

is found in the statement of facts.

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A review of the entire record leads us to the conclusion

that no reversible error was shown. It is conceded that

no objection was made at the time and that the trial judge

was not requested to instruct the jury to disregard the

statement. We do not think that the record demonstrates

that such argument resuited in the rendition of an im-

proper verdict or judgment. Kittrell v. State, 382 S.W.2d

273 (Tex. Civ. App.—Dallas 1964, ref., n.r.e.); Camp

v. Commissioners Court of El Paso County, 279 S.W.2d

927 (Tex. Civ. App.—El Paso 1955, ref., n.r.e.).

Appellant complains of the action of the trial court in

sustaining appellees’ motion in limine to prohibit ap-

pellants’ counsel from showing that the witness Hughes

had earlier been employed by appellees to appraise ap-

pellant’s property and that he was a witness for appellees

at the Special Commissioners’ hearing. Hughes was sub-

poenaed as a witness by appellant, but was not called

to testify. There was no error in sustaining the motion

in limine. State v. Biggers, 360 S.W.2d 516 (Tex. 1962).

The judgment is affirmed.

/s/ Tom F. Coleman

Associate Justice

Judgment rendered and opinion filed November 4, 1971.

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