# Reply Brief — Pilgrim Equipment Co. v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 982

## Text

NO. 72-299

Sugpresne Court of the Bnited States

OCTOBER TERM, 1972

PILGRIM EQUIPMENT COMPANY OF HOUSTON,
Petitioner
Vv.

THE STATE OF TEXAS, ET AL,
Respondents

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CIVIL

APPEALS, HOUSTON, FIRST SUPREME
JUDICIAL DISTRICT OF TEXAS

JoE RESWEBER
County Attorney
Harris County, Texas

By Epwarp J. LANDRY
Assistant County Attorney
Harris County, Texas

202 Harris County Courthouse
Houston, Texas 77002

(713) 228-8311, Ext. 151

Attorneys for Respondents

————————OOOE___|__ re
Alpha Law Brief Co., One Main Plasa, No. 1 Main St., Houston, Texas 77002

Rt ee

QUESTION PRESENTED .........--022200000000000+

Did the Court of Civil Appeals err in affirming the
Judgment of the Trial Court on the grounds (1) that
Petitioner failed to adequately preserve its alleged error
and (2) that a consideration of Petitioner’s points on the
merits relating to such alleged error leads to the con-
clusion that the trial court did not err in refusing to
allow recovery as separate items of damage the loss of
profits sustained by Petitioner's business, the costs in-
curred in readapting Petitioner’s remainder property, or
the moving costs incurred by Petitioner, all allegedly
arising as the result of the condemnation of a portion
of Petitioner’s property?

STATEMENT _ ......---2e eee ceeceeceteesceeceseeces
REASONS FOR DENYING A WRIT ........---+++-+>
PRAVER 2.222.222 c ccc cccccccccccccccccccccscccsces

LIST OF AUTHORITIES

CASES

Baker v. Sturgeon, 361 S.W.2d 610 (Tex. Civ. App. 1962,

no writ hist.) ...........:-eeeeeeeeceeeeseeseereees
Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966 (1897)......
Brunson v. State, 444 S.W.2d 598 (Tex. Sup. Ct. 1969)...
Bullen v. Wisconsin, 240 U.S. 625, 36 S.Ct. 473 (1916)....
City of Carollton v. Rawlins, 291 S.W.2d 955 (Tex. Civ.

App. 1956, err. ref.) ...---+-++eeeeeeee reece sess tress
City of Dallas v. Priolo, 242 S.W.2d 176 (Tex. Sup. Ct.

City of San Antonio v. Congregation of the Sisters of Charity
of the Incarnate Word, Inc., 404 S.W.2d 333 (Tex. Civ.
App. 1966, no writ hist.) .....--..--ssesseeeeeeeeeeee

Daniels v. Daniels, 414 S.W.2d 207 (Tex. Civ. App. 1967,
no writ hist.) ...........eeeeece cee ceseeeeeeeeeseces

Duignan v. United States, 274 USS. 195, 47 S.Ct. 566 (1931)

East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223

S.W.2d 613 (Tex. Sup. Ct. 1949) .....---eeeeeeeeeeees
Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979 (Tex.
Be OR GOED ccnccecccescvsnsees repartee

Gandy v. State, 293 S.W.2d 534 (Tex. Civ. App. 1956, err.
pel. MEL.) ..cccccccccccccccccccccscsccsccccccsssess

II

CASES Page
Hale v. Lavaca County Flood Control Dist., 344 S.W.2d 245
(Tex. Civ. App. 1961, no writ hist.) .................. 7

2d 221 (Tex. Civ. App. 1953, err. ref.) ................ 16
Huckabee v. State, 431 S.W.2d 927 (Tex. Civ. App. 1968,
is Me Sek ehebdddebtendnekesses nebnbiodene oon cx. 15

fe Fee ar ag 7
Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158

ieee ete 12
Milam County v. Akers, 181 S.W.2d 719 (Tex. Civ. App.

I I, A i ag ee 15
Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 56

ERE eI rane 12
Reilly v. State, 382 S.W.2d 116 (Tex. Civ. App. 1964, err.

Sa SEED -d2dcekeubnceadéunba vibe oe naceeikbe kiew cde 14, 15
Rogers v. State of Alabama, 192 U.S. 226, 24 S.Ct. 257

Dt. Siphseeeetwenssasdshbnahsadeaiiboeccunacuhs 12
Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114 (1903) 8

State v. Carpenter, 89 S.W.2d 194 (Tex. Sup. Ct. 1936)... 6,7
State v. Vaughan, 319 S.W.2d 349 (Tex. Civ. App. 1959,

i ae ee 16
State v. Zaruba, 418 S.W.2d 499 (Tex. Sup. Ct. 1967).... 15
Wagner v. Foster, 341 S.W.2d 887 (Tex. Sup. Ct. 1960)... 11
Wood v. State, 434 S.W.2d 149 (Tex. Civ. App. 1968, no

RED bichudbunnanduabucedebbebbuscsséadccancén. 11
CONSTITUTION
ee Wee, GE, BN, Yon nev ccccccccdcccccccccse 5,6
28 U.S.C.A. Const. Amend. XIV, Sec. 1 ...........00.05. 5
Vernon’s Ann. Tex. Const. Art. 1, Sec. 17 ...........0005 6, 20
STATUTES AND RULES
ES sea hee eeu hes ba henace oad 16, 17, 20
I 7
I 16,17
WEE, ows nceceksncabvecsoncenvieceee 16,17
5 REESE STR SP nana arene EES 10
TEXTS

14 Cyc. of Fed. Proc., 3rd Ed. 372, Sec. 67.83 ........... 12
4 Nichols on Eminent Domain 14-49, Sec. 14.21 .......... 8

det OTR TI

aa ak a oi aaa ali

NO. 72-299

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

PILGRIM EQUIPMENT COMPANY OF HOUSTON,
Petitioner

Vv.

THE STATE OF TEXAS, ET AL,
Respondents

RESPONSE TO PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CIVIL
APPEALS, HOUSTON, FIRST SUPREME

JUDICIAL DISTRICT OF TEXAS

To The Honorable Supreme Court Of The United States:

The Respondents, the State of Texas and County of
Harris, file this opposition to the Petition for Writ of
Certiorari filed by Petitioner to review the judgment of
the Court of Civil Appeals for the First Supreme Judicial
District of the State of Texas.

2

QUESTION PRESENTED

Did the Court of Civil Appeals err in affirming the
judgment of the trial court on the grounds (1) that Peti-
tioner failed to adequately preserve its alleged error and
(2) that a consideration of Petitioner’s points on the
merits relating to such alleged error leads to the con-
clusion that the trial court did not err in refusing to allow
recovery as separate items of damage the loss of profits
sustained by Petitioner’s business, the costs incurred in
readapting Petitioner’s remainder property, or the mov-
ing costs incurred by Petitioner, all allegedly arising as
the result of the condemnation of a portion of Petitioner’s
property?

STATEMENT

Respondents, the State of Texas and Harris County,
by this suit in the County Civil Court at Law No. 1 of
Harris County, Texas (Tr. p. 3), have acquired by the
right of eminent domain, for highway purposes, two
tracts of land, with improvements thereon, belonging to
Petitioner, Pilgrim Equipment Company of Houston. The
first tract, described as Tract 311, and being a part of
Lots 11, 12, 13 and 14 of Stoeckli Place, an addition to
the City of Houston, Harris County, Texas, consists of
4,918 square feet of land, after the taking of which
Petitioner continued to enjoy the use of a remainder
tract consisting of 8,268 square feet of land (S.F. p. 352).
The second tract, described as Tract 335, and being a
part of Lots 6 and 7 of the said Stoeckli.Place Addition,
consists of 3,229 square feet of land, after the taking of
which Petitioner continued to enjoy the use of a re-
mainder tract consisting of 6,258 square feet of land (S.F.
p. 352).

Tifa Riad ie eh a as all ca aad

_—_

3

Both properties from which the two tracts in question
have been acquired, for some years prior to and at the
time of taking in this cause, had been used by Petitioner
as a laundry and dry cleaning establishment. Respondents
have acquired the two tracts in question for use in the
eventual construction of the easterly extension of a free-
way installation known as the Southwest Freeway, or
U.S. 59, within the City of Houston.

At page 8 of Petitioner’s Petition For Writ of Certiorari,
it is stated that “(T)he project was largely financed by
Federal Highway Trust Funds.” This is an incorrect state-
ment. The cost of the right of way for this project is be-
ing borne entirely by funds of Harris County, with one-
half of such cost to be reimbursed by the State of Texas.
There may be plans for the use of federal funds in the
construction of the freeway facility itself; however, the
record in nowise reflects the past use of federal funds on
this project to-date or the planned use of such funds in
the future.

- Proceedings before the Special Commissioners were
regular and in conformity with the statutes and Rules of
Civil Procedure. Objections were duly filed by Petitioner
to the Award of the Commissioners and the matter became
a cause pending in the County Civil Court at Law (Tr.
pp. 16 and 38). The parties stipulated to the regularity
of all prior proceedings and the date of. taking by Re-
spondents was established as June 10, 1969 (Tr. p. 67).
Trial by jury before the Honorable Charles C. Castles,
Judge of the County Civil Court at Law No. 1, was had
commencing on the 28th day of September, 1970 (S.F.

p. 2).

The cause was submitted to the jury upon special issues
(Tr. p. 68), and in response to the verdict of the jury,

—

4

judgment (Tr. p. 67) was entered December 1, 1970,
awarding to Respondents the tracts sought to be con-
demned and to Petitioner the sum of $99,166.00, for the
value of the two tracts and for the diminution in value
to Petitioner’s two remainder tracts. Additionally, the
judgment ordered that inasmuch as the initial offer made
by Respondents to Petitioner exceeded the verdict of the
jury, Petitioner pay the costs of the proceedings before
the Special Commissioners and of those in the Trial Court
in accordance with Texas law (Art. 3267, V.A.CS.),
and further ordered that Petitioner remit to Respondents
the sum of $45,834.00, plus interest from the date of
judgment, said sum being that amount by which the
Award of the Special Commissioners in the amount of
$145,000.00, exceeded the verdict of the jury, Petitioner
having earlier withdrawn said Award in full (Tr. p. 25).
Petitioner’s Motion for New Trial was duly overruled
on March 26, 1971, and an appeal was taken to the Court
of Civil Appeals, Houston, First Supreme Judicial Dis-
trict of the State of Texas.

From an adverse judgment of the Court of Civil Appeals
rendered and filed on November 4, 1971, the opinion of
which is set out in full in Appendix “A” hereto, infra,
page A-3, Petitioner filed an Application for Writ of
Error in the Supreme Court of Texas. That Court by
order dated April 26, 1972, a copy of which is set out in
Appendix “A”, infra, page A-1, refused Petitioner’s Appli-
cation as presenting no error requiring reversal of the judg-
ment of the Court of Civil Appeals. The Supreme Court
of Texas further overruled Petitioner’s motion for rehear-
ing by order dated May 24, 1972, a copy of which is
set out in Appendix “A,” infra, A-2. Thereafter, Petitioner
filed its Petition for Writ of Certiorari in this Court.

—

5

It is respectfully submitted that the verdict and judg-
ment of the Trial Court, the judgment of the Court of
Civil Appeals, Houston, First Supreme Judicial District
of the State of Texas, and the action of the Supreme
Court of Texas on Petitioner’s Application for Writ of
Error, were proper and correct under the evidence and
under both Texas statutory and constitutional law, and
were in no way violative of any federal constitutional
guarantee enjoyed by Petitioner; therefore, Petitioner’s
Application for a Writ of Certiorari should be refused by
the Supreme Court of the United States.

REASONS FOR DENYING THE WRIT

It should be noted at the outset that it is not without
some significance that Petitioner in its Application has
been unable to cite to the Supreme Court any federal case
authority supporting its position that its federally guaran-
teed constitutional rights embodied in 28 U.S.C.A. Const.
Amend. V and 28 U.S.C.A. Const. Amend. XIV, Sec. 1,
have in anyway been violated by the actions of the Hous-
ton Court of Civil Appeals and/or the Texas Supreme
Court.

In substance, by the five questions presented by Peti-
tioner for review, as set out at pages 3 and 4 of its Peti-
tion for a Writ of Certiorari, Petitioner complains of its
inability to recover as separate items of damage (1) its
moving costs allegedly caused by the partial taking of
its property; (2) its costs of readapting its remainder
property for continued use as a laundry and dry clean-
ing plant; and (3) its loss of profits allegedly suffered
by reason of the partial taking.

Gt Ta EE can
ly aia ey
ilies beat ite s*44, ue

UTE Rich ah tenets
til ate ial

Hue a1 at Fal STH one

2252 5
Tat
aa

He

ili

Petitioner's point

Aside from the procedural infirmity of

there can be

guarantee of adequate compensation as

constitutional amendments to which Petitioner alludes.

Supreme

State v. Carpenter, supra, decided by the Texas

law

is the landmark case in Texas condemnation

courts in the arrival

without exception by Texas

for the taking of private

“adequate” or “just” compensation

the issues submitted to

property for public purposes. By

court below, which as the Court of

the jury by the trial

out were in the language suggested

the jury was called upon to deter-

Civil Appeals pointed

by State v. Carpenter,

mine (1) the value of the part

of Petitioner's property

that was taken; (2) the value of Petitioner's

wie Wie Wnt
13] i byt
it it jai
ie : Hi zis! BES
ay ae as He
iis iis tas
?
lian = ea

dence by appellant . . .~

——
———

i
|
ti
gF

|
2
.

Tex. 155, 213 S.W.2d 979; East Texas Motor Freigh
Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613.”

In passing on a similar situation, the United States
Supreme Court in Husty v. United States, 282 U.S. 694,
$1 S.Ct. 240 (1931), declared:

In light of the above and foregoing Petitioner's Ques-
tions 2 and 3 should be answered in the negative.

PETITIONER'S QUESTIONS 4 AND 5
By Petitioner’s Questions 4 and 5 and the respective
arguments relating thereto, Petitioner basically complains
that the Court of Civil Appeals erred in holding that the

2
5
S
8
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5
:
os
3

:
4
4

N

Hl
i

3
5

Hi
Pe:

22

iif

:

aaPs

cage

:

d to the trial court by the

were not specifically presente

court is not authorized

and this
to consider them. Wagner Vv.

motion for new trial,

Foster, 341 S.W.2d

434 S.W.2d 149

960); Wood v. State,

(Tex. Civ. App.

887 (Tex. 1

12

Of the failure of a party to preserve alleged error in
a state trial court by proper assignment or otherwise, the
United States Supreme Court in the case of Michel y.
State of Louisiana, 350 U.S. 91, 76 S.Ct. 158 (1955).
declared:

Ct.
(1958); Bullen v. Wisconsin, 240 U.S. 625,

ints in question on this appeal, the Houston Court of
Civil Appeals further concluded that:

:

LOSS OF PROFITS

Petitioner was not entitled to recover as a separate item
of damages any loss of profits allegedly arising by reason
of the condemnation herein, inasmuch as such loss under
Texas law can only be, and was, considered by the jury
insofar as it affects Petitioner's remainder property for
the use to which it was adapted and being put.

In overruling the objection made by Respondents’ at-
torney to the initial offer and introduction of evidence as
to Petitioner’s loss of profits allegedly occurring by reason
of this condemnation, the trial court significantly in-
structed the jury as follows:

13

“Alright, the objection is overruled, subject how-
ever, to these instructions for the Jury. Any testi-
mony of this witness or any other witness pertaining
to any profits, if any, or losses, if any, in connection
with the operation of the laundry business at or on
the subject property, is admitted for the consideration
of the Jury and not to show, not as evidence, tend-
ing to sustain such profits, if any, or losses, if any,
as a separate item of damages, but is admitted as
affecting the market value, if it does, of the remain-
der of the land and improvements on the subject
property after the taking for the use to which that
remainder .was adapted and was being put, and for
that purpose only. Subject to those instructions, the
testimony may be admitted.” (Emphasis added )
(S.F. 107)

To a subsequent objection made to Petitioner’s further
showing of additional losses of profit, the Court, in again
overruling such objection, declared:

“Pll admit the testimony for the Jury’s considera-
tion, not as a separate item of damages, but for

whatever it is worth, if anything, as affecting the
market value of the remaining land and improvements
forte uses to which it was adapted and were being
put on the subject property.

“For that purpose, and for that purpose only, you
may testify only to what I have said. If you can
limit your testimony to that, we'll admit it.” (Em-
phasis added) (S.F. 339)

From the foregoing, it is clear that the trial court
permitted Petitioner to show loss of profits (which Peti-
tioner did in fact do following each of the Court’s rulings
quoted above—See S.F. pp. 107, 339) for the purpose
of the jury’s consideration in determining the market
value of the remainder after the taking.

The Texas rule regarding lost profits is stated as follows
in Reilly v. State, 382 S.W.2d 116 (Tex. Civ. App. 1964,
ref. n.r.e.), a case highly similar to this one in that it
involved a partial taking:

“Under the Texas decisions income or profits from
a business are admissible in evidence in condemna-
tion cases in only two situations: (1) In those cases
where the landowner’s business has been temporarily
interrupted because of a denial of access the land-
owner can recover his loss of profits as an element
of damage. Hart. Bros. v. Dallas County, Tex. Com.
App., 279 S.W. 1111, City of LaGrange v. Pierratt,
142 Tex. 175 S.W. 2d 243, Gandy v. State, Tex.
Civ. App., 293 S.W.2d 534. (2) In those cases
where only a part of the landowner’s land is taken,
an owner may show loss of profits as an injury to his
business, not as a separate item of damage, 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, 150

ee lara —-
EC me cali ns aaa ° = 5 _
ene Bs

; |

—_

15

Tex. 423, 242 S.W.2d 176; Milam County v. Akers,
Tex. Civ. App., 181 S.W.2d 719.”

The taking of Petitioner’s property, of course, falls into
the second of the two situations as set forth by the Court
in Reilly v. State, above.

Of the special issue regarding lost profits which Peti-
tioner requested the trial court to submit to the jury, the
Houston Court of Civil Appeals below correctly declared:

“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 busi-
ness. It was appellant’s contention that by reason of
the taking the property was no longer suitable for the
use to which it had been devoted 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. State, 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.).”

MOVING EXPENSES

With regard to Petitioner’s attempt to recover moving
expenses incurred in the move of its business operations
from the location of the property of which a part was
condemned to another location in the City of Houston,
Respondents had instituted suit in condemnation by the
filing of their Plaintiff's Original Petition on February 25,
1969 (Tr. 9). At such time there was no Texas statutory
or judicially decided law under and by which Petitioner

—_

was entitled to reimbursement for such moving expenses.
In fact the case law clearly prohibited any such reimburse-
ment, 2s exemplified by the case of State v. Vaughan,
319 S.W.2d 349 (Tex. Civ. App. 1959, no writ history),
in which it is declared: |

16

“The defendants claimed and offered evidence to
show expenses incurred and losses sustained in re-
moving furniture and fixtures from the property. It
may be noted that such furniture and fixtures were
not being condemned. In Herndon v. Housing Au-
thority of City of Dallas, Tex. Civ. App., 261 S.W.2d
221, 233, er. ref., the court used language appropriate
here: ‘* * * it is only the real estate which is being
taken, not the business. The owner may keep his
business and continue to operate it at a different
location.’ Here the defendants of course could keep
the furniture and fixtures and use them at other loca-
tions. The expenses incurred and losses sustained
were purely incidental and consequential to the tak-
ing of the property and were not recoverable as dam-
ages for the taking of the property. Evidence as to
these matters was not proper and should not have
been admitted.” (Emphasis added)

Subsequent to the institution of this suit on February
25, 1969, the Texas Legislature passed two statutes, Sec-
tion 7 of Article 3265 and Article 6674-n (renumbered
as Article 3266b).

Section-}-of=Article 3265, which became effective Sep-
tember 1, 1969, which was subsequent in time to the
institution of this suit (February 25, 1969) and to the
time this matter became a cause pending in court by the
Petitioner’s filing of its objections and exceptions to the
award of the special commissioners on May 9, 1969 (Tr.
16), provides:

_—

17

“The owner of the land who is actually and physi-
cally displaced and permanently moves from his
dwelling or place of business shall be entitled to, as
a separate item of damages, the reasonable moving
expenses for personal property other than machinery,
equipment, or fixtures, not to exceed $500.00, when
personal property is moved from a place of residence
and not to exceed $5,000.00, when personal prop-
erty is moved from a place of business, but the
maximum distance of movement to be considered
shall be fifty (50) miles. In no event shall such
expenses exceed the market value of such personal
property; provided, however, that the provisions of
this section shall not apply in any condemnation
proceeding whether before special commissioners or
the court where the owner is entitled to reimburse-
ment for moving expenses under other existing law.”
(Emphasis added)

It is submitted that because of the effective date of
the above Article, Petitioner could not avail itself of the
provisions of said Article. In any event, the “other exist-
ing law” referred to in the emphasized proviso above
would preclude Petitioner from the applicability of such
statute.

Such “other existing law” at the time Section 7, Article
3265 became effective (September 1, 1969), could only
have been then Article 6674n-4 (subsequently renumbered
as Article 3266b), which had earlier become effective on
April 2, 1969, which was, however, still subsequent in
time to the institution of this suit on February 25, 1969.

Before its amendment in 1971, long after this suit
had been concluded, said Article 6674n-4 (now 3266b)
provided as follows:

—

18

“Section 1. When in the acquisition of right of
way for any highway designated by the State High-
way Commission as a part of the State Highway
System it becomes necessary that any individual,
family, property of a business concern, farm or ranch
operation or non-profit organization be displaced they
may be paid their moving expenses, relocation Ppay-
ments, be provided financial assistance to acquire
replacement housing, or allowed rental supplements
and compensated for expenses incidental to the
transfer of property to the state all of which Pay-
ments or expenditures are hereby declared to be an
expense and cost of right of way acquisition. The
State Highway Commission shall formulate the rules
and regulations necessary to carry out the provisions
of this section and shall not authorize payments or
expenditures in excess of those authorized by the
Federal Highway Relocation Assistance Program.

“Sec. 2. The State Highway Commission shall pro-
vide a relocation advisory service for all individuals,
families, business concerns, farm and ranch opera-
tions and non-profit organizations which shall be
compatible with the Federal Highway Relocation
Advisory Program.

“Sec. 3. The Comptroller of Public Accounts is
hereby authorized to issue a State Warrant on the
appropriate account for all relocation costs and the
costs of administering the relocation assistance pro-
gram. Acts 1969, 61st Leg., p. 133 ch. 45, emerg.
eff. April 2, 1969.” (Emphasis added)

There can be little question from a review of the fore-
going statute that what the Legislature contemplated by
same was to establish a new and heretofore unauthorized
program under and by which reimbursement of relocation
costs could be made and which program is to be handled
and conducted separately and apart from the trial of con-

>

demnation causes, which relate only to the taking of real
estate. The statute obviously was passed to provide relief
to condemnees such as Petitioner in this case, whose busi-
ness operations are displaced as a result of the necessity
of acquiring their business location for a state highway.

19

That such reimbursement of relocation costs is not
contemplated to form any part of the condemnation trial
involving the real estate of any business concern affected,
is made clear by the statute’s declaration that “The State
Highway Commission shall formulate the rules and regu-
lations necessary to carry out the provisions of this sec-
tion and shall not authorize payments or expenditures in
excess of those authorized by the Federal Highway Re-
location Assistance Program.”

Also, such statements in the statute that “The State
Highway Commission shall provide a relocation advisory
service for all . . . business concerns . . . which shall be
compatible with the Federal Highway Relocation Advisory
Program,” and that “The Comptroller of Public Ac-
counts is hereby authorized to issue a State Warrant on
the appropriate account for all relocation costs . . .,”
clearly indicate that the Legislature by said statute con-
templated a program separate and apart from the pro-
cedure to be followed in condemnation cases culminating

in a trial with a jury determining the fair market value
of the real estate involved.

The foregoing was the basis for the declaration by the
Court of Civil Appeals below that:

. These items may well constitute ‘damage’ to
OT i but the cost of removing the personal prop-
erty does not constitute ‘damage’ to’ appellant’ s
‘property’. Jurisdiction of this cause of om is statu-

3265, V.A.CS., prescribes ‘market
test of compensation in con-
of San Antonio v. Con-

the Sisters of Charity of the Incarnate

., 404 S.W.2d 333 (Tex. Civ. App.—East-
no writ). Neither Sec. 17, Article |
of the Constitution nor Article 3265, V.A.C.S.. au-
the County Court to entertain a cause of
in a condemnation case other

" as results from a

be
:
1

COSTS OF READAPTING REMAINDER

Se addition to the tered inficenity of Petidoner’s
complaint as to its inability to recover the costs it al-
legedly incurred in readapting its remainder property, its
position as to the recovery of these costs during the trial
below and now is a classic case of a party wanting his
cake and wishing to eat it too. Petitioner, by its only
two witnesses, contended at the outset of the trial and
throughout its progress that by reason of the condemna-
tion of a portion of each of the buildings on the two
tracts involved in this case, the remaining portions of such
buildings were rendered totally valueless.

First, with regard to the testimony of Petitioner's wit-
ness Robertson, this witness first stated that he had no
opinion as to the value of the improvements on Peti-
tioner’s property before the taking but that after the
taking the improvements left on Petitioner's remainder
property had no value (S.F. 80, 81).

Petitioner's witness Reed testified that the value of the
improvements on one tract (Tract 311) before the taking
was $109,965.00, and that after the taking the value of

:

21

the improvements on the remainder was “zero.” (S.F. 275,
276). With regard to the other of Petitioner's tracts (Tract
335), Reed testified that the value of the improvements
thereon before the taking was $6,937.00, and that after
the taking the value of such improvements on the remain-
der was again “zero” (S.F. 304).

It is clear from the testimony of both the witnesses
Robertson and Reed that Petitioner sought in the trial
of this case a 100% recovery of the total value of the
i ts on both of the properties involved in this
condemnation. For by contending that the value of the
i ts on the Tract 311 property before the tak-
ing was $109,965.00 and that the value of the improve-
ments on the Tract 335 property before the taking was
$6,937.00 and to contend that the value of such improve-
ments on each of the said respective remainders after the
taking was zero, Petitioner clearly sought a full recovery
of the total value of said improvements as they existed
prior to the taking.

The attempt to recover the full value of its improve-
ments was, of course, a legitimate goal which Petitioner
was entitled to attempt to achieve; but it was the maxi-
mum amount which Petitioner was entitled to attempt to
recover as to its improvements.

For the trial court to have allowed Petitioner to show
the cost of adapting or readapting the improvements on
the remainder for a continued use of such remainders for

. whatever purpose, in the light .of Petitioner's attempt to
recover the full value of such improvements, would clearly
have been to allow Petitioner to attemipt to recover an
amount exceeding the overall value of such improvements.
This, of course, was precisely what Petitioner sought to

and purification system in the remainder building
Tract 311, as well as to the cost of constructing new
offices in said remainder building.

less by the taking and that Petitioner was thereby en-

than that to which it was entitled, to-wit, the full value
of said improvements. The trial court did not, therefore,
err in refusing to permit evidence of such costs and/or

PRAYER
failed to show that either
Court of Civil Appeals

23

Wherefore, Respondents pray that Petitioner's Petition for
Writ of Certiorari be in all things refused.

(713) 228-8311, Ext. 151
Attorneys for Respondents

CERTIFICATE OF SERVICE

The undersigned, one of the counsel for Respondents,
does hereby certify that on this 224 day of October,
1972, he did deposit in the United States mail, with suffi-
cient postage to deliver same, two (2) true and correct
copies of this Brief of Respondents, addressed to Cutrer
& Jefferson, Attorneys at Law — Attention: Mr. Lewis
Cutrer — 3901 Westheimer, Suite 301, Houston, Texas

ET SET TORT:

Al
APPENDIX A

In THE

Supreme Court of Cexas

April 26, 1972

No. B-3135
Pilgrim Equipment Company )
of Houston )
)
vs. )
)
)

The State of Texas
From Harris County
First District

Application of petitioner for writ of error to the Court
of Civil Appeals for the First Supreme Judicial District
having been duly considered, and the Court having deter-
mined that the application presents no error requiring
reversal of the judgment of the Court of Civil Appeals,
it is ordered that said application be, and hereby is,
refused. .

It is further ordered that applicant, Pilgrim Equipment
Company of Houston, and surety, American Employers’
Insurance Company, pay all costs incurred on this ap-

plication.

—

A2
May 24, 1972
No. B-3135
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

. ae

Affirmed, and Opinion filed November 4, 1971.
TFC/b

A3

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 land
taken and the damage to each of the tracts resulting from
the taking. .

Appellant’s first three points complain that the judg-
ment did not allow appellant just or adequate compensa-
tion; that the answer made by the jury to Special Issue
No. 2 was conflicting and inconsistent with its answer to
Special Issue No. 1; and that the answer to Special Issue
No. 2 “was not supported by a preponderance of the evi-
dence”, and therefore that the court erred in entering
judgment thereon.

—

A4

.

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-sourt 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
reading the issues and the answers made thereto. Ap-
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

LR LE ELLEN OLE TE TIE AS TS IR,

:

. a

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.

AS

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 specific
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

—:

procedural rules established by law or adopted by the
Supreme Court to govern the trial and appeal of civil
cases in this State. Art. 3266, V.A.C.S.; Hale v. Lavaca
County Flood Control Dist., 344 S.W.2d 245 (Tex.
Civ. App.—Houston 1961); Ingram v. Nueces County,
365 S.W.2d 838 (Tex. Civ. App.—San Antonio 1963).

Appellant contends that the trial court erred in render-
ing the judgment herein because appellant was entitled
to recover (1) damages for the loss of profits suffered by
reason of the partial taking; (2) the cost of readapting
the remainder of its property for continued use as a
laundry and dry cleaning plant; and (3) the moving costs
caused by the partial taking.

These points of error are stated to be based on Assign-
ments of Error Nos. 2, 3, 5, and 13.’ The points are too

A6

1. “Second—The Court erred in its ruling on the Motion in Limine
filed by Plaintiffs herein particularly by limiting and
qualifying the evidence that the Defendants could
introduce concerning moving cost and cost of readapt-
ing the remainder of their property for use as a
laundry and cleaning establishment and loss of profits
in the operation of their business as a result of and
on account of the condemnation of a part of their
property which is described in Plaintiffs’ pleadings
filed herein.

“Third— The Court erred in refusing to admit and/or quali-
fying and commenting upon the evidence introduced
or to be introduced by the Defendants at the trial
of this cause regarding moving cost, loss of profits,
cost of adapting remainder of their property for use
previously made thereof and other expenses suffered
and sustained by the Defendants on account of the
condemnation of their property hereunder, same being
in violation of Amendment V. of the Constitution of
the United States and Article 1, Section 17 of the
Constitution of the State of Texas, since such items
represented actual damages sustained by the Defend-
ants on account of the condemnation of their prop-

—

general 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
v. 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

A7

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 also 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, showed
that due to such partial taking the Defendants had
to relocate their business at substantial cost, expense
and damages.

“Thirteenth—The Court erred in signing and entering the judgment
for Plaintiffs herein, same being in violation of
Amendment V. of the Constitution of the United
States and of Article 1, Section 17 of the Constitu-
tion of the State of Texas.”

A8

(Tex. Civ. App.—Texarkana 1962); City of Carollton
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 ele¢-
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

» a

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.

A9

By the end of the four month period the adminstrative
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.

~

—

The operation continued at the Almeda plant in the
remainder at a reduced scale until it was abandoned for
all 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
find a desirable location, purchase it, get some zoning re-
strictions 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 from
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

Al0

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

——_—_—

All

objections were made to the court’s charge, they were not
included in the transcript.

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.
Robert, 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

a AAT OEE TE RT AR EEE EO ERNE

——y

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 $.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.).

Al2

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.CS., 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

we
Se

—_—_—oO—

Al3

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 §,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.

—dAustin 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.

Al4

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 resulted in the rendition of an im-
proper verdict or judgment, Kittrell v, State, 382 $,W.2d
273 (Tex. Civ, App.—Dallas 1964, ref., n.re.): 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1285%3A2. Public record. Not legal advice.