07-0425
MCKINNEY INDEPENDENT SCHOOL DISTRICT v. CARLISLE GRACY LTD. AND GORDON M. GRIFFIN, JR.
REVOCABLE TRUST; from Collin County; 5th district (05-05-00625-CV, 222 SW3d 878, 04-24-07)
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AFFIRM Opinion Filed April 24, 2007.
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00625-CV
............................
MCKINNEY INDEPENDENT SCHOOL DISTRICT, Appellant
V.
CARLISLE GRACE, LTD. and
GORDON M. GRIFFIN, JR. REVOCABLE TRUST, Appellees
.............................................................
On Appeal from the County Court at Law No. Two
Collin County, Texas
Trial Court Cause No. 002-1395-99
.............................................................
OPINION
Before Justices Wright, O'Neill, and Lang-Miers
Opinion By Justice Lang-Miers
This is a condemnation case. In three separate transactions, appellee Carlisle Grace, Ltd. acquired 89.714
acres of unimproved contiguous real property in Collin County, Texas. The parties referred to the property as the
56.43 acre tract, the 22.677 acre tract, and the 10.607 acre tract, with the latter two acquisitions also referred to
as the 33.284 acres.
Appellant McKinney Independent School District (MISD) condemned the 56.43 acre tract for use as a high
school. At trial, Carlisle Grace sought compensation not only for the 56.43 acre tract taken but also for damages
to the 33.284 acres of “remainder” caused by the taking. It argued that the highest and best use of the entire
property was for low density residential development. MISD argued there was no “remainder” because the 56.43
acre tract it condemned was a self- sufficient economic unit. It also argued there was no unity of use between the
56.43 acre tract and the 33.284 acres, contending the 33.284 acres were not reasonably adaptable to residential
development because a substantial portion of that acreage was subject to flooding, See Footnote 1 and
Carlisle Grace did not prove it could get approval to develop the flood plain. MISD sought to compensate Carlisle
Grace only for the 56.43 acre tract.
The issues were tried to a jury. It found that the 56.43 acres taken by MISD and the 33.284 acres not taken
“were joined by a unity of use by the same proprietor into a single property consisting of the 89.714 acres in
question.” The jury found the market value of the 56.43 acre tract taken was $3,216,510, and found damages to
the remainder in the amount of $1,189,903. The trial court entered judgment based on the jury's verdict.
At issue in this appeal is whether the evidence is legally sufficient to support the jury's finding that the 56.43
acre tract and the 33.284 acres were joined by a unity of use and, if so, the amount of damages to the
remainder. The specific issue we are asked to decide is whether the evidence is legally sufficient to prove the
33.284 acres were reasonably adaptable to residential development and whether the damages to the remainder
were excessive, even if the tract taken was not a single economic unit. MISD contends the evidence was so
speculative that it amounted to no evidence. Because we conclude the evidence is sufficient, we affirm.
Standard of Review
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the
burden of proof, the appellant must demonstrate there is no evidence to support the adverse finding. See
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In our review, we consider the evidence in the light most
favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). If the
evidence would enable reasonable and fair-minded jurors to differ in their conclusions, the evidence is legally
sufficient. See id. at 822. But evidence that is mere suspicion or surmise is no evidence. See Browning-Ferris,
Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993); Capital Metro. Transp. Auth. v. Cent. of Tenn. Ry. and Nav. Co.,
Inc., 114 S.W.3d 573, 578 (Tex. App.-Austin 2003, pet. denied). Additionally, an expert's opinion testimony is not
legally insufficient because it lacks market data to support the opinion. See Tex. Elec. Serv. Co. v. Wheeler, 551
S.W.2d 341, 342-43 (Tex. 1977) (per curiam) (op. on reh'g). Lack of supportive market data tends to diminish the
reliability of expert testimony, but this is a factor for the jury to consider in determining the credibility of the
expert's testimony. See id.
Under this review, jurors are the sole judges of the credibility and weight of the witnesses' testimony. City of
Keller, 168 S.W.3d at 819. Jurors may disregard even uncontroverted expert testimony unless the subject matter
is one for experts alone. Id. at 820; State v. ADSS Props., Inc. 878 S.W.2d 607, 614 (Tex. App.-San Antonio
1994, writ denied).
Applicable Law
A. Evidence of Reasonable Adaptability
The trial court must initially determine whether evidence establishes a reasonable probability that existing
restrictions on development will be lifted within a reasonable time when it decides whether to admit or exclude
evidence that property is reasonably adaptable to a particular use. City of Austin v. Cannizzo, 153 Tex. 324, 267
S.W.2d 808, 814-15 (1954). Evidence of probable future changes in those restrictions and valuation of property
based on that probability is not inadmissible merely because there are restrictions on development. State v.
Kinsloe III, 716 S.W.2d 699, 702 (Tex. App.-Corpus Christi 1986, no writ). We will not reverse the trial court's
decision to admit or exclude evidence of reasonable adaptability unless appellant shows an abuse of discretion.
Cannizzo, 267 S.W.2d at 814-15. In this case, MISD does not argue the trial court abused its discretion by
admitting the evidence. Instead, it complains that the evidence is legally insufficient. And a party may challenge
the sufficiency of evidence presented through testimony even though the party does not question the
admissibility of that testimony. See Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1977) (party
may raise sufficiency of evidence of expert testimony without objecting to admissibility of testimony).
B. Unity of Use
McLennan County v. Stanford, 350 S.W.2d 208, 209 (Tex. Civ. App.-Waco 1961, no writ) stated the general
rule for determining whether property is a single tract of land or separate tracts:
Where separate, but contiguous tracts are integral parts of an entity under common ownership in such physical
and functional relationship that they are joined by unity of use by the same proprietor into a single property, they
will be treated as a whole in assessing damages to the remainder in the taking of a part.
Id. (citations omitted). See also Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 463 (Tex. 1970) (basis
for damages to remainder tract is unity of use and unity of ownership). Property has a unity of use if the tracts
are “devoted to an integrated unitary use or if the possibility of their being so combined for a unified use in the
reasonably near future is such as to affect market value.” So. Pipe Line Corp. v. Deitch, 451 S.W.2d 814, 818
(Tex. App.-Corpus Christi 1970, writ ref'd n.r.e.); see Calvert v. City of Denton, 375 S.W.2d 522, 524-25 (Tex.
Civ. App.-Fort Worth 1964, writ ref'd n.r.e.).
C. Fair Market Value
In Texas condemnation law, market value properly reflects all factors that buyers and sellers would consider in
arriving at a sales price. City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 185 (Tex. 2001); Cannizzo,
267 S.W.2d at 815. The Texas Supreme Court stated:
In the willing seller-willing buyer test of market value it is frequently said that all factors should be considered
which would [citation omitted] reasonably be given weight in negotiations between a seller and a buyer. [citations
omitted] This would exclude consideration of purely speculative uses to which the property might be adaptable
but wholly unavailable but would permit consideration of all uses to which the property was reasonably adaptable
and for which it was, or in reasonable probability would become, available within a reasonable time.
Cannizzo, 267 S.W.2d at 814.
In determining market value of property taken and not taken, the jury should base its award on the highest and
best use of the property. See So. Pipe Line Corp., 451 S.W.2d at 818-19 (determination of damages to
remainder does not depend upon uses to which property devoted at time if possibility of tracts being combined
for unified use in reasonably near future affects market value). When the highest and best use of land is
disputed, the jury decides which use is appropriate when it determines market value. See ADSS Props., Inc., 878
S.W.2d at 614.
Existence of and Damages to the Remainder
In its first and second issues, MISD argues the evidence is legally insufficient to support the jury's finding of the
existence of and damages to the remainder.
A. Expert Testimony
Carlisle Grace's Engineering Expert
Carlisle Grace's engineering expert, William Anderson, testified that the 33.284 acres were reasonably
adaptable to residential development. MISD first argues Anderson's opinion was based on speculation and
unfounded assumptions and constituted no evidence because he did not conduct engineering and hydrology
studies to show that the flood plain was reasonably adaptable to development. It was undisputed that Carlisle
Grace did not conduct the studies required to obtain governmental approval to develop in the flood plain. MISD
also argues its experts rebutted Anderson's opinion with undisputed evidence that the 33.284 acres were not
reasonably adaptable to residential development because there was no possibility the necessary approvals
would be given absent the appropriate engineering and hydrology studies. Without these studies, MISD argues,
the evidence is conclusive that the City would not consider reclamation of the flood plain or dam breach areas,
would not rezone those areas for residential development, and would not issue the necessary permits for either
reclamation or redevelopment. Essentially, MISD argues, without the engineering and hydrology studies, Carlisle
Grace offered no evidence the property is a single economic unit reasonably adaptable to residential use.
But, the law does not require Carlisle Grace to show that the use had already been approved. Instead, it must
show that the 33.284 acres were reasonably adaptable for development. See Canizzo, 267 S.W.2d at 814-15;
State v. Tigner, 827 S.W.2d 611, 613 ( Tex. App.-Houston [14th Dist.] 1992, writ denied) (expert appraiser could
base opinion restrictions would be lifted on vast experience in real estate market without polling homeowners
about approval to lift restrictions). And here, Carlisle Grace did not contend that the entire 33.284 acres was
adaptable to residential development. To the contrary, it argued only that seven to ten acres of the 33.284 acres
would possibly be developed and the rest would be used to provide amenities that did not require construction in
the flood plain.
Anderson testified he considered the 89.714 acre tract as one property and that the 33.284 acres in the flood
plain contributed to the value of the 56.43 acre tract because the low land offered a buffer from nearby
developments and provided an opportunity to create amenities such as ponds, sports courts, and hike and bike
trails that prospective buyers find desirable. He concluded the highest and best use of the entire tract was
residential development. In fact, Anderson testified that when William Carlisle initially contacted him about the
feasibility of developing the 56.43 acre tract, he suggested that Carlisle purchase the adjoining property for
several reasons, including gathering density, open space for amenities, sanitary sewer availability, and drainage.
At that time, Anderson did not know MISD was seeking to condemn the 56.43 acre tract for a high school.
Anderson discussed two similar properties in the vicinity of the 89.714 acre tract. One is immediately south of
the subject property and had been rezoned by the City to allow single-family residential development in flood
plain land. Anderson was involved in the rezoning on one of those projects. Anderson described his extensive
experience in developing similar properties and obtaining approvals from municipalities for development in a
flood plain. He testified that, based on this experience, his evaluation of the subject property, and his review of
the City's documents for development of similar properties, a portion of the 33.284 acres could be developed
without requiring a FEMA reclamation of flood plain land, with the remaining portion used to develop amenities
such as hike and bike trails, sports courts, and ponds.
MISD contends Urban Renewal Agency of City of Austin v. Georgetown Savings & Loan Association, 509 S.W.
2d 419 (Tex. Civ. App.-Austin 1974, writ ref'd n.r.e.), supports its position that Anderson's testimony constituted
“no evidence” and is on point. We disagree. In Urban Renewal, the landowner whose property was subject to
condemnation, offered evidence that the property was suitable for development as an office site although
construction of an office building was prohibited by city codes because it would require construction in a creek
bed. The court stated that the landowner's entire case “was centered on the proposition that the entire tract was
suitable for use and development as an office site” and the witnesses testified on value based on this
assumption. Id. at 420. But the landowner did not offer any evidence, other than this assumption, that it was
reasonably probable that city codes would be changed to permit construction in the creek bed. Id. at 421.
In this case, unlike in Urban Renewal, Carlisle Grace's engineering expert testified about the underlying data he
used to produce his development feasibility report for the property. He stated that the City's comprehensive plan
for the property showed future land use of the property as low density residential. And Anderson described his
extensive experience with zoning issues and FEMA reclamations, testifying that one hundred percent of his FEMA
reclamation applications have been approved. When asked whether it was reasonably probable that his plan for
development of the 33.284 acres would be approved, Anderson said, “Yes,” and explained that he and his firm
“have experience with zoning of this similar nature in reclamations,” “a tremendous amount of experience in doing
flood studies,” “this particular tract of land [does] not have a heavy forested area adjacent to the creek [that
could cause flooding problems],” and “[the plan does not call for a] FEMA flood plain reclamation.” Consequently,
Urban Renewal is distinguishable.
We did address a similar issue in City of Richardson v. Smith, 494 S.W.2d 933 (Tex. App.-Dallas 1973, writ ref'd
n.r.e.). That case involved a partial taking with no claim of damage to the remainder. The issue was whether the
part taken must be valued as a separate tract or as a part of the whole. The evidence showed that the part taken
could best be used as a part of the whole and would be less valuable if used separately. We concluded that
omission of the added value which the part taken would have when used in connection with the remaining land
would deprive the landowner of the full compensation to which he was entitled and held the trial court correctly
excluded the testimony of the city's appraisers concerning the value of the part taken as a separate and
unrelated tract. Id. at 936, 938.
In summary, Anderson testified the 56.43 acre tract was more valuable as a part of the entire 89.714 acre tract
because the 33.284 acres would contribute valuable recreational and green space to the development. MISD's
experts disagreed about the feasibility of developing the 33.284 acres for residential use and concluded the
56.43 acre tract was a self-sufficient economic unit. However, opinions are not legally insufficient simply because
the opinions contradict one another. Instead, the opinions raise fact issues which the jury must resolve. See City
of Keller, 168 S.W.3d at 820 (it is province of jury to resolve conflicts in evidence); ADSS Props., Inc., 878 S.W.
2d at 614 (jury may accept or reject opinions of expert witnesses). We conclude Anderson's testimony was
not speculative or based on unfounded assumptions.
Carlisle Grace's Expert Appraisers
MISD raises similar complaints about the legal sufficiency of the testimony of Carlisle Grace's expert real estate
appraisers, David Bolton and Wendell Pyles. Additionally, MISD contends the evidence will not support Bolton's
testimony concerning the market value of the 33.284 acres.
Bolton
Bolton testified he valued the 89.714 acre tract as a single property. He described the process he used to
appraise the 89.714 acre tract and how he determined that the 56.43 acre tract and the 33.284 acres were a
single economic unit. See Footnote 2 He explained how the 33.284 acres contributed to the enhancement of
the 56.423 acre tract.
Bolton also testified about the fair market value of the 89.714 acre tract. He described the comparable sales he
reviewed and how he adjusted their values to reach his opinion about the fair market value of this property. He
concluded that the 89.714 acre tract had a fair market value of $65,000 per acre, or $5,831.410, before the
taking. He testified the fair market value of the remainder prior to the taking was $2,163,950. He estimated the
fair market value of the remainder after the taking at $1,000 per acre, resulting in $2,130,666 in damages to the
remainder. See Footnote 3
MISD argues Bolton's opinion is speculative because he did not locate any comparable sales with similar
characteristics found on the subject property. But MISD's appraiser used three of the same comparables Bolton
used; he just had a different opinion. And comparable sales are just that; they are not required to be identical.
Estate of Sharboneau, 48 S.W.3d at 182 (under comparable sales analysis, appraiser finds data for sales of
similar property, makes upward or downward adjustments to sales prices based on differences in subject
property); Harris County Appraisal Dist. v. Kempwood Plaza Ltd., 186 S.W.3d 155, 159 (Tex. App.-Hous. [1st
Dist.] 2006, no pet.) (discussing comparable sales method). Moreover, whether an expert's appraisal is based on
non- comparable sales is an issue for the trial court when determining admissibility of the expert's opinion
concerning the market value of the property. See City of Garland v. Joyce, 462 S.W.2d 86, 88 (Tex. Civ. App.-
Waco, 1970, writ ref'd n.r.e.) (holding opinion testimony of sales should have been excluded because opinion not
based on comparable sales). And here, MISD does not complain about the admissibility of Bolton's testimony.
MISD also argues Bolton's appraisal assumed the 33.284 acres would be used for an “amenity package” that
included water features and playgrounds available for the exclusive use of the homeowners. It argues this
assumption was wrong for two reasons and, as a result, Bolton's testimony constitutes no evidence: the City does
not allow any construction in the dam breach inundation area without consent of the adjacent landowner or a
hydrology study showing the reclamation would not affect any surface area; and the City's park ordinance
requires the developer to dedicate 15 acres of the 33.284 acre tract for use as a public park.
Although MISD argues his assumptions were wrong, there was other evidence that supported Bolton's
assumptions. First, MISD called the City's assistant engineer, Michael Hebert, as a witness to testify about the
City's ordinances with regard to the flood plain engineering issues and their applicability to the property. On
cross-examination, Hebert testified about the City's ordinance that prohibits construction in the dam breach
inundation area without consent of the adjacent landowner or a hydrology study showing the reclamation would
not affect any surface area. He testified it was possible to build a ball field and hike and bike trails in the floodway
without any reclamation, provided no fill material was added, or to build a lake in that area to capture excess
water. And he testified that if the engineering guidelines are met, an application for reclamation has a 100
percent chance of approval. Additionally, Anderson, Carlisle Grace's engineering expert, testified he did not seek
approval of his plan from adjacent landowners because their approval was only required if he raised the water
level, which his plan did not do. Finally, and with regard to the issue whether a portion of the property would have
to be dedicated as a public park, the City's director of planning testified that the City's park director frequently
chooses to accept a cash payment in lieu of the dedicated park land and that the decision is generally based on
whether the land is suitable for use as a park.
In summary, Bolton based many of his conclusions on Anderson's engineering report, which we previously
concluded was not based on speculation or unfounded assumptions. Bolton also described in detail how he
reached his opinion about the fair market value of the property. We conclude Bolton's testimony was not based
on speculation or unfounded assumptions.
Pyles
Pyles testified the City retained him in the year 2000 to appraise the 89.714 acre tract for possible
condemnation. His appraisal considered the 89.714 acre tract as one property and concluded the highest and
best use was single family residential. MISD argues Pyles's opinion was speculative because he admitted that
when he conducted his appraisal he was not aware that all of the 22.677 acre tract was within the flood plain. But
whether Pyles considered that the 22.677 acre tract was within the flood plain when he prepared the appraisal in
2000 does not affect the legal sufficiency of his opinion. Instead, it goes to the weight to be given his opinion and
was an issue to be resolved by the jury in this case. See ADSS Props., Inc., 878 S.W.2d at 614. And Pyles
echoed Anderson's opinion that the 33.284 acres enhanced the 56.43 acre tract because it could be used in the
residential development as a greenbelt. We conclude Pyles's testimony was not based on speculation and
unfounded assumptions.
We also conclude the testimony of Carlisle Grace's experts is legally sufficient to support the jury's verdict.
We overrule MISD's first issue.
B. Carlisle Grace's Lay Testimony
MISD next argues the lay testimony of William Carlisle and Steve Goodman is legally insufficient to prove the
56.43 acre tract was an integral part of the 89.714 acre tract. It argues Carlisle's opinion was based on a
hypothetical subdivision which he was allegedly planning to build. MISD contends the evidence showed Carlisle
Grace had not taken any predicate steps to construct the subdivision, such as applying for a zoning change,
conducting engineering and hydrology studies, and applying for the necessary permits and approvals. MISD
argues Carlisle's testimony was so speculative as to constitute no evidence.
However, we do not reach this issue because we previously concluded the expert testimony is itself legally
sufficient to support the verdict.
Damage to Remainder
In its third issue, MISD argues the evidence is legally and factually insufficient to support the jury's damages
award to the remainder because Carlisle Grace sought damages only for denial of access to the remainder
resulting from the taking. In a subpart of this issue, MISD argues the trial court erred by failing to limit the jury's
consideration of damages to denial of access. In a second subpart of this issue, MISD complains of charge error
in the submissions to the jury on unity of use and single economic unit.
A. Limiting Carlisle Grace's Claim to Denial of Access
MISD contends Carlisle Grace sought damages solely for denial of access to the 33.284 acres. Accordingly,
MISD argues the evidence is legally and factually insufficient to support the jury's damages award and the trial
court erred by not limiting the jury's consideration of damages to the remainder resulting only from a denial of
access. To support these arguments, MISD cites us to Carlisle Grace's pleadings and admissions, arguing
Carlisle Grace judicially admitted it was seeking damages solely for denial of access. We disagree. We have
reviewed the pleadings, admissions, and the reporter's record and conclude they do not support MISD's
arguments that Carlisle Grace sought damages only for denial of access. Instead, the record shows Carlisle
Grace sought damages generally for the diminution in the market value of the remainder as a result of the taking
of the 56.43 acre tract. As a result, we do not need to decide whether the evidence is legally and factually
sufficient to support the damages award under only a denial of access theory or whether the trial court erred by
not limiting the jury's consideration of damages to only denial of access.
B. Jury Charge: Single Economic Unit and Unity of Use
MISD also argues the trial court erred by failing to submit a jury question on the “extent of the single economic
unit” despite a proper and timely request.
Rule of civil procedure 278 requires the trial court to submit instructions and definitions to the jury as are
necessary to enable the jury to render a verdict. See Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243
(Tex.1992); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.-Dallas 2002, pet. denied).
We review the trial court's submission of instructions and jury questions under an abuse of discretion standard.
Rosell, 89 S.W.3d at 653; Toles v. Toles, 45 S.W.3d 252, 263 (Tex. App.-Dallas 2001, pet. denied). The trial
court has broad discretion in submitting jury questions so long as the questions submitted fairly place the
disputed issues before the jury. Rosell, 89 S.W.3d at 653; Toles v. Toles, 45 S.W.3d at 263. This broad
discretion is subject only to the limitation that controlling issues of fact must be submitted to the jury. Wright Way
Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, 422 (Tex. App.-Corpus Christi 1990, writ denied) (op. on
reh'g); Rosell, 89 S.W.3d at 653. Controlling issues may be submitted to the jury by questions, instructions,
definitions, or through a combination thereof. Tex. R. Civ. P. 278; Wright Way Constr. Co., 799 S.W.2d at 422;
Rosell, 89 S.W.3d at 653. When submitting the jury charge, a trial court is afforded more discretion when
submitting instructions than when submitting questions. Rosell, 89 S.W.3d at 653; Wal-Mart Stores, Inc. v.
Middleton, 982 S.W.2d 468, 470 (Tex. App.-San Antonio 1998, pet. denied).
MISD requested the following instructions and question:
You are instructed that “unity of use” means that portion of the property that is economically self[-]sufficient to
support the highest and best use.
An “economic unit” is that portion of a whole property that is economically self- sufficient to support a highest and
best use independent of any remaining portion of the whole property.
Do you find from a preponderance of the evidence that [the] tract taken by [MISD] is not a self-sufficient
economic unit, independent of the remainder of the parent tract?
The trial court denied MISD's requested jury question and instructions and submitted the following:
When property consists of separate tracts that are contiguous and are integral parts of a whole in such physical
and functional relationship that they are joined by a unity of use by the same proprietor into a single property,
they will be treated as a whole in determining whether there have been damages to a remainder in the taking of a
part of the whole. In determining “unity of use,” you should consider the highest and best use definition above.
The court defined “highest and best use” as:
“Highest and best use” is the reasonably probable and legal use of vacant land, which is physically possible,
appropriately supported, financially feasible, and results in the highest value. The four criteria the highest and
best use must meet are legal permissibility, physical possibility, financial feasibility, and maximum profitability.
The jury was asked to answer the following question:
Do you find from a preponderance of the evidence that the 56.43 acres taken by [MISD] and the 33.284 acres
not taken on August 29, 2003, were joined by a unity of use by the same proprietor into a single property
consisting of the 89.714 acres in question?
The jury answered, “Yes.” MISD argues the charge should have asked the jury to determine whether the
56.43 acre tract was a self-sufficient economic unit. If the jury concluded it was, then, MISD argues, there is no
remainder and the jury should not have considered whether there were damages to the remainder. We disagree.
It was undisputed that the 56.43 acre tract was a self-sufficient economic unit and that it was reasonably
adaptable to residential development. But the proper inquiry is whether the tracts should be considered as a
whole. The real issue here is whether the 33.284 acres contributed value to the 56.43 acre tract such that they
should be considered as one property. Richardson, 494 S.W.2d at 936. As we stated in Richardson, if the
highest and best use of a whole tract is to develop and use it as a whole, then the part taken may be valued at
less than its true worth if it is considered separately from the remaining land and not as part of the whole. Id. And,
as the supreme court stated:
[W]hen the portion of the land taken by the State, considered without reference to the remainder, cannot be
considered an independent economic unit reflecting the highest and best use of the property and would thus
deprive the land owner of adequate compensation for the part taken if considered solely as severed land, . . . the
market value must necessarily be determined by considering some portion or all of the remainder in order to
construct an economic unit.
State v. Windham, 837 S.W.2d 73, 76 (Tex. 1992).
Based on our examination of the evidence and case law, we conclude the trial court did not abuse its discretion
by denying MISD's requested jury instructions and question.
We overrule MISD's third issue.
We affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
050625f.p05
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Footnote 1 Much of the 33.284 acres is located within the 100-year flood plain defined by the Federal
Emergency Management Agency (FEMA) or within the dam breach innundation area defined by National
Resources Conservation Service (NRCS) (collectively referred to as the flood plain).
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Footnote 2 MISD objected when Bolton was asked whether it was physically possible to develop the 89.714 acre
tract as low density residential, contending that Bolton had not been qualified to give this opinion. But Bolton
testified he relied on the engineer's report and conclusions for engineering matters. Additionally, MISD does not
raise this as an issue on appeal. But even if it had been raised, any error in admitting Bolton's testimony was
harmless because the same evidence came in through other means.
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Footnote 3 The jury returned a verdict of $3,216,510 for the 56.43 acre tract taken by MISD, or $57,000 per
acre, and $1,189,903 for damages to the 33.284 acres not taken by MISD, or $35,750 per acre, within the values
testified to by Bolton.
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File Date[04/24/2007]
File Name[050625F]
File Locator[04/24/2007-050625F]