Board of Regents v. Fischer

498 S.W.2d 230, 1973 Tex. App. LEXIS 2251
CourtCourt of Appeals of Texas
DecidedJuly 11, 1973
DocketNo. 12002
StatusPublished
Cited by3 cases

This text of 498 S.W.2d 230 (Board of Regents v. Fischer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Regents v. Fischer, 498 S.W.2d 230, 1973 Tex. App. LEXIS 2251 (Tex. Ct. App. 1973).

Opinion

O’QUINN, Justice.

This is a suit in which the Board of Regents of the University of Texas System, as condemnor in a proceeding in eminent domain, acquired the leasehold interest of certain tenants and now appeals, contending that the trial court’s instructions to the jury resulted in award of excessive damages.

[231]*231The Regents in 1970 purchased the fee to lots 7 and 8, Block 71, Original City of Austin, situated at the southwest corner of the intersection of Colorado Street and West Seventh Street in Austin, and then brought these proceedings to acquire the leasehold interests of John J. Fischer, individually, and the Lone Star Shoe Service, Inc., who occupied a portion of the building bought by the Regents.

The tenants, who are appellees, occupied a store-type space, approximately twenty feet by forty-six feet, at 622 Colorado Street, in the operation of a shoe repair and sales business, under a lease that would have expired July 31, 1973. The parties are agreed that the date of taking under condemnation was December 11, 1970, nearly thirty-two months prior to expiration of the lease.

Special commissioners appointed to assess damages awarded Fischer and Lone Star Shoe Service the sum of $5,758, and the tenants timely filed their objections to the award and notice of appeal. At the trial in county court at law the parties stipulated that the tenants would incur as special damages reasonable expenses of $627.35 in moving their fixtures, machinery, and equipment. The jury found the reasonable cash market value of the leasehold interest of Fischer and Lone Star to be $7,942.40. The trial court entered judgment for the tenants in the sum of $2,811.-75, being the difference between the award of the special commissioner and the sum of the jury’s award and the stipulated special damages for moving costs.

It is not in dispute that the tenants had made certain improvements to the premises under their lease with the former owner, and the Regents concede on appeal that the trial court properly instructed the jury to compensate the lessees for any enhancement in the leasehold due to these improvements. Improvements consisted of electrical wiring, soundproofing, dustproofing, fireproofing, and an exhaust system, peculiar to the nature of the tenants’ business. Most of the improvements were attached permanently to the building, were custom fitted and incapable of use elsewhere, but amounted to enhancement of the premises.

The Regents bring one point of error: “The trial court erred in submitting the instructions to Special Issue No. 1 of the Court’s Charge for the reason that such instructions instruct the jury to award double damages.”

We will overrule the point of error and affirm judgment of the trial court.

The Regents succinctly state the gravamen of their appeal: “The only point of error raised . . . is to the instruction number 9 and the phrase ‘plus the reasonable fair market value on December 11, 1970,’ and the use of the date December 11, 1970 in the instruction following the Special Issue.”

Instruction number 9 is quoted:

“9. You are further instructed that by the term ‘reasonable cash market value,’ as used in the following Special Issue, is meant the cash price that the exclusive right to use, occupy, and enjoy the land and improvements, plus the reasonable fair market value on December 11, 1970, of the improvements as defined and described below, for the length of time through July 31, 1973, would bring if offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying, the lessees’ interest.”

Special Issue No. 1, under which the jury found $7,942.40 to be the reasonable cash market value of the leasehold, follows :

“What do you find from a preponderance of the evidence to have been the reasonable cash market value, if any, on or about December 11, 1970, in Travis County, Texas, of the leasehold interest of the lessees, John J. Fischer and Lone Star Shoe Service, Inc., in the leased land and improvements, considering only the lessees’ [232]*232exclusive right to use, occupy, and enjoy this land and improvements for the remainder of the primary term of their lease, less their obligation to pay rent and comply with the other terms and conditions of their lease?”

The additional instruction, following the special issue, is also quoted:

“In connection with the foregoing Special Issue, you are instructed that by the term ‘leasehold interest of the lessees,’ is meant the exclusive right to use, occupy, and enjoy the possession of the land and improvements described in the July 15, 1968, lease, for the term through July 31, 1973, taking into account such improvements which had been attached to the land by the lessees in order to enable them to properly carry on the trade or business contemplated by the lease agreement, which improvements were capable of being removed at the end of the lease period without material or permanent injury to the land, but only to the extent that such improvements added to or enhanced the value of such land, and only considering such improvements for which it would be economically impractical to the lessees to remove on or about December 11, 1970.”

The Regents’ position is that it was error to instruct the jury to consider the value of the improvements “on December 11, 1970,” the date of taking, and to add this market value to the exclusive right to use and enjoy the land and improvements to the end of the lease through July 31, 1973, because in so doing the jury awarded double damages. The Regents insist that, by telling the jury to add the market value of the improvements at the time of taking to the fair market value of the lease remaining unused, the trial court “ . . . gave ‘enhancement’ for the rest of the lease plus the present ‘fair market value’ of the improvements. This is double recovery.”

As already observed, the Regents recognize that the lessees were entitled to compensation for any enhancement of the leasehold due to the improvements the lessees made to the premises. The Regents contend that the correct date for consideration of the fair market value of the improvements was the last day of the term of the lease, July 31, 1973, and not the date of taking, December 11, 1970. The Regents requested the trial court to submit instructions, in lieu of paragraph 9, which were substantially in the language of the instruction given, except as to the date for fixing the fair market value of the improvements.

The facts of this case distinguish it from the usual proceeding in condemnation in which the interest of the owner of the land and building and the interest of his lessee are being condemned in the same action. In this cause the owner of the premises sold the land and building to the Regents, and thereafter, upon failure to reach an agreement with the lessees, the Regents brought this action to condemn only the property of lessees, separate and apart from the interest of the former owner.

In the usual proceeding, two issues are submitted, the first pertaining to the market value of the property including the improvements, and the second inquiring as to the cash market value of the lessee’s, leasehold interest. By subtracting the answer to the second issue from the answer to the first, the interest of the owner may be ascertained. Urban Renewal Agency v. Trammel, 407 S.W.2d 773, 777 (Tex.Sup.1966).

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Cite This Page — Counsel Stack

Bluebook (online)
498 S.W.2d 230, 1973 Tex. App. LEXIS 2251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-regents-v-fischer-texapp-1973.