State v. Brown

OPINION ON MOTION FOR REHEARING

Appellant’s motion for rehearing asserts that we erred in overruling each of its nine points of error and additionally makes request for findings of fact and conclusions of law.

Appellant’s requests, as copied from the motion for rehearing, are as follows:

1. “Appellant requests this Honorable Court to make its findings of fact and conclusions of law whether the jury can take the testimony of the landowner Brown of a per-acre valuation of the land, a per-acre damage to part of the land and no damage to part of the remainder and calculate, summarize and compute in substance that the Defendant Brown in effect, by implication, is evidence of probative value on which the jury could base its answer to Special Issue No. Three of $59,120.00 when the Court’s Charge on Special Issue No. Three asked the jury to find the market value of the 27.498 acres of land immediately after the day of taking answered in dollars and cents.”

2. “The finding of fact requested by the Appellant in this case is whether, from the testimony of Mr. Brown, the jury is entitled to calculate, summarize and assume that Mr. Brown testified that the value of the remainder immediately after the taking was $52,631.00.”

3. “The question of law requested by this Appellant under these Points of Error (4-9) is that if the jury can assume that Mr. Brown testified to the value of the remainder immediately after the taking to be $52,631.-00, is that evidence sufficient upon which the jury can base its answer to Special Issue No. Three of $59,-120.70, or is it against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, or is it an excessive verdict?”

In our original opinion we discussed the testimony of the three witnesses given on the trial of the case. We pointed out, among other things, that the parcel taken by the State for highway purposes divided the tract here involved so that two separate parcels remained. We discussed in some detail the testimony of Mr. Brown concerning the valuation of these two remaining tracts. Although he testified primarily in terms of per-acre values, it is clear that the value of each separate remaining tract and their combined value could be arrived at by a simple process of calculation which could easily be made by anyone in the light of the facts and opinions as to value which were in evidence. The jury, by process of calculation, could have found the value of the total remainder (27.498 acres) after the taking of the parcel for highway purposes to be as low as $52,631.00. However, the jury did not completely accept the testimony of Mr. Brown, and in answer to special issue No. 3, found the value of the remainder to be $59,120.70. This amount was $6,489.70 more than that testified to by Mr. Brown and $3,270.80 less than that testified to by the witness Crow. The testimony of Mr. Brown, including direct, re-direct, cross and re-cross examination, occupies 49 pages of the Statement of Facts, and it is clear to us that his testimony concerning value was easily understandable in the context of the case and the issues presented.

We therefore find and conclude that the jury was entitled to make calculations on the basis of the facts and opinions given by Mr. Brown and to believe and find that his testimony in effect was that after the taking in question the market value of the remainder, consisting of two separate tracts, was as low as $52,631.00; that the testimony of Mr. Brown constituted evidence of probative force on which the jury could base its answer to special issue No. 3 of $59,120.00; that in answering such issue the jury could consider Mr. Brown’s testimony along with the other evidence in the case, including testimony given by the two expert witnesses called by the parties; that the finding on special issue No. 3 was supported by some evidence; that such finding is not against the great weight and preponderance of the evidence; and that the verdict is not excessive.

It is not the duty of the Court of Civil Appeals on request for additional findings of fact and conclusions of law to recite evidence or to make findings or conclusions which may conflict with those theretofore made. See Prasek v. Dudley, 395 S.W.2d 876, 888 (Tex.Civ.App., Corpus Christi, 1965, wr.ref.n.r.e.). We repeat and confirm the findings and conclusions made in the original opinion. The evidence was legally and factually sufficient to support the verdict of the jury and the trial court properly rendered the judgment which we have affirmed.

Appellant’s motion for rehearing is overruled.