Gomez Leon v. State

418 S.W.2d 544, 1967 Tex. App. LEXIS 2712
CourtCourt of Appeals of Texas
DecidedMay 24, 1967
DocketNo. 5854
StatusPublished
Cited by1 cases

This text of 418 S.W.2d 544 (Gomez Leon v. State) 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
Gomez Leon v. State, 418 S.W.2d 544, 1967 Tex. App. LEXIS 2712 (Tex. Ct. App. 1967).

Opinion

OPINION

CLAYTON, Justice.

This is a condemnation case in which the State of Texas sought to condemn for a freeway 11,257 square feet of land situated in El Paso, Texas owned by appellants Armando Gomez Leon and wife. Special Commissioners awarded appellants $6,685.-00, from which award the State of Texas filed its objections and a jury trial was had in the County Court at Law of El Paso County, Texas. The jury found, [545]*545in answer to a single special issue, that the market value of the land on the day of taking (March 1, 1965) was $3,377.10. Judgment was rendered on this verdict, from which judgment appellants take this appeal.

Appellants present ten points of error which will be discussed in groups in so far as possible. Their first point of error complains of the ruling of the trial court in allowing the State to ask appellant Gomez Leon what he had paid for the property when the same was purchased, at least fourteen years before the date of condemnation. Appellants rely on Thompson v. State, 319 S.W.2d 368 (Tex.Civ.App., 1958; n. w. h.) where it is stated on pages 370 and 371:

“The general rule governing the above is stated in 16 Tex.Jur., Sec. 248, p. 572, as follows:
“ ‘The cost to the owner of the land and of the improvements subsequently made is not of itself evidence of market value. If such evidence is to be received at all, it is not admissible when a considerable interval of time has elapsed between the date of the purchase and the time of the litigation.’
“See also Scott v. McLennan County, Tex.Civ.App., 306 S.W.2d 943, W/E Ref. N.R.E.; Hubbard v. Harris County Flood Control Dist., Tex.Civ.App., 286 S.W.2d 285, W/E Ref.N.R.E.
“The object of the inquiry to the jury is to determine the reasonable market value of the property at the time of the taking. Market value in a condemnation suit is the price for which property will sell when offered by one who desires to sell, but is not obliged to do so; and is purchased by one who desires to buy, but is under no necessity of buying. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 [979]. Any evidence which may reasonably contribute to an answer of such issue is admissible. The price the owner paid for the property is not admissible as such (since it does not necessarily reflect on market value at the time of the taking). It may become admissible, however, if sufficient predicate be developed whereby the evidence tends in a reasonable manner to reflect on the market value at the time of taking. To render such evidence admissible, it should be shown that the sale was very recent; that values have not changed in the area since the date of such sale; that such sale was not a forced sale, or a ‘kinfolks’ sale’; and that such sale was one between a seller who desired to sell but was not obliged to do so, and a buyer who desired to buy but was under no necessity of buying. When such predicate is laid, we think evidence of the price the owner paid for the property is admissible as tending to reflect on the reasonable market value at the time of the taking. Until such predicate is laid, the evidence is not admissible. As to how recent or how remote in point of time such purchase of the property occurred, the more remote in point of time of the purchase, the less likelihood the admissibility of the purchase price — and the more recent the purchase, the more likelihood the admissibility of the evidence. The trial judge has and should have broad, but not unlimited discretion, in determining the admissibility of evidence of the price the owner paid for his property, under the foregoing rules. Should the evidence be inadmissible upon application of the foregoing rules — but be erroneously admitted, one resulting vice is the influence of such on the jury to place a value on the owner’s property below market value simply because the owner acquired it at a price considerably lower.” (Citing cases).

Appellee’s position is that since Gomez Leon was allowed to testify on direct examination that he had bought the property because it was right across the street from Texas Western College and he had figured that the only place the college could grow was toward his property, the State should be allowed to show the original purchase price, not as a comparable sale, but in order to [546]*546prove that the area had not changed appreciably since the purchase. The testimony was:

“Q. I see, so it is your testimony that actually it was about, it cost you about $800.00?
A. Yes, somewhere around there.
Q. And, of course, that was over ten years ago, wasn’t it?
A. Eighteen, twenty years ago.
Q. I see, now, then, actually, Mr. Gomez-Leon, has the area where your property is located, changed practically at all, right around your area?
A. Well, it wasn’t much land left there, it’s industrial zone there, and the Globe-Milles is right behind it.
Q. I understand, but the land around where your place is practically hasn’t changed at all since that time has it ?”

Appellee maintains that if it were error to admit such testimony for the stated purpose, it was harmless error. At this point we should state that in the Thompson case, relied on by appellants, the court further observed:

“We recognize that there are cases in which evidence of the amount of money the owner paid for the property is erroneously admitted, but by reason of the amount of the award, and the other evidence of market value at the time of the taking, in the record, such error is deemed harmless.”

We believe this to be the case here, since Gomez Leon testified that he had paid about $800.00 for the land in question in 1951, whereas the award of the jury was $3,377.10, over four times the purchase price. Furthermore, the Texas Supreme Court, in Dennis v. Hulse, 362 S.W.2d 308, 309 (1962) has held:

“ * * * Under our practice an appellate court is not authorized to reverse merely because the record discloses some error that is reasonably calculated to cause a miscarriage of justice. The party appealing must also show that it probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure.” (Emphasis supplied).

It cannot be held here that the questioning on the part of the State probably did cause the rendition of an improper judgment. Nor is our opinion in this respect altered by the appellants’ recently cited case of Ludlam v. State, 405 S.W.2d 139 (Tex.Civ.App., 1966; n. w. h.), which recites at page 141:

“ * * * It is well settled that the price paid for the land ten years before the taking is not admissible on the issue as to the value of the property at the time of the taking — State of Texas v. Curtis et al.

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Related

Gomez Leon v. State
426 S.W.2d 562 (Texas Supreme Court, 1968)

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418 S.W.2d 544, 1967 Tex. App. LEXIS 2712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-leon-v-state-texapp-1967.