City of Emory, Texas, Appellant/Cross-Appellee v. Scott Lusk and Lisa Lusk, Appellees/Cross-Appellants ( 2009 )

NO. 12-08-00059-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CITY OF EMORY, § APPEAL FROM THE 354TH
APPELLANT/CROSS-APPELLEE
V. § JUDICIAL DISTRICT COURT OF
SCOTT LUSK AND LISA LUSK,
APPELLEES/CROSS-APPELLANTS § RAINS COUNTY, TEXAS
OPINION
The City of Emory appeals a trial court judgment embodying a jury’s $10,000.00 award to
Scott and Lisa Lusk as damages for a sewer easement taken by the City through inverse
condemnation. In six issues, the City contends the judgment should be reversed because the Lusks
consented to the taking, waived their right to seek damages, and failed to present evidence sufficient
to support the award of damages. Contending the City is not immune from suit, the Lusks appeal
from a partial summary judgment granted in favor of the City on the Lusks’ breach of contract claim.
We affirm the trial court’s partial summary judgment and suggest a remittitur of a portion of the
damages awarded in the judgment incorporating the jury verdict.
BACKGROUND
The Lusks own a two acre trailer park within the city limits of Emory. The City of Emory
approached the Lusks about placing a sewer line on an east– west axis through their trailer park. The
City determined that the east–west sewer line would best be placed under the only driveway that
went through the Lusks’ trailer park. The Lusks agreed for this driveway to be torn up in exchange
for construction by the City of a similar driveway. The Lusks executed an “Easement For Sewer
Purposes” to the City of Emory on March 8, 2005. As part of the terms of the easement, which was
to be no more than twenty feet wide, nothing could sit on the ground above the sewer line without
express permission of the City.
Following execution of this easement by the Lusks, the city council considered plans for the
sewer project, which was being partially financed by a $700,000.00 grant from the federal
government. Lisa Lusk was a member of the city council while these plans were being formulated
and approved. After the necessary procedural steps had been taken, construction commenced on the
sewer project. When the City began laying a second sewer line on a north–south axis across part of
the trailer park, Scott immediately told Clyde Smith, the senior administrator for the City of Emory,
that this was not part of the agreement. Smith confirmed Scott’s testimony during trial. Even after
Scott’s immediate objection to the north–south sewer line, the City completed laying the second
easement on the north-south axis across the Lusks’ property.
After the City completed its work in their trailer park, the Lusks filed suit against the City.
They alleged a cause of action for inverse condemnation seeking a monetary award for the sewer line
that had been placed on their property on a north–south axis and a cause of action for breach of
contract because the City replaced the driveway on their property with one approximately half the
width of the driveway the City had destroyed. The City filed a motion for summary judgment
alleging entitlement to judgment as a matter of law on the inverse condemnation cause of action on
the basis of consent, on the breach of contract cause of action on the ground of estoppel, and
claiming governmental immunity for both causes of action. The trial court granted a partial summary
judgment for the City without stating its reason, ordering that the Lusks take nothing on their cause
of action for breach of contract. The inverse condemnation claim was tried before a jury, which
awarded the Lusks $10,000.00 on that claim.
BREACH OF CONTRACT
In the one cross issue filed by the Lusks, they contend that the City was not entitled to
governmental immunity and therefore the trial court erred in granting the City’s motion for summary
judgment on the breach of contract claim. In its motion for summary judgment, the City asserted
entitlement to judgment on the breach of contract claim on the bases of estoppel and governmental
immunity. The trial court’s partial summary judgment recites that the City is entitled to summary
judgment as a matter of law as to the breach of contract cause of action and ordered that the Lusks
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take nothing on their breach of contract claim. However, the judgment does not state the basis of
the trial court’s ruling.
Standard of Review
We review the trial court’s summary judgment de novo. Tittizer v. Union Gas Corp., 171
S.W.3d 857, 860 (Tex. 2005). To prevail on a traditional summary judgment motion, the movant
must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter
of law. TEX . R. CIV . P 166a(c). A movant who conclusively negates at least one essential element
of a cause of action or proves all essential elements of an affirmative defense is entitled to summary
judgment on that claim. Randall’s Food Mkts, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
When the order granting summary judgment does not specify the particular grounds the trial court
sustained, on appeal, the summary judgment opponent must defeat each summary judgment ground
argued by the movant. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Otherwise, an appellate
court must uphold the summary judgment on any ground that is supported by the evidence and
pleadings. Id.
Governmental Immunity
In Texas, governmental immunity has two components: immunity from liability, which bars
enforcement of a judgment against a governmental entity, and immunity from suit, which bars suit
against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Immunity
from suit bars a suit against the State or its political subdivisions unless the legislature expressly
gives its consent to the suit. See Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex. 1997); see
also TEX . CIV . PRAC. & REM . CODE ANN . § 101.025 (Vernon 2005). The rationale for governmental
immunity is to allow the State and its political subdivisions to manage their fiscal matters in an
orderly appropriations process. See TEX . GOV ’T CODE ANN . § 311.034 (Vernon Supp. 2008). The
legislature has allowed governmental liability for property damage, personal injury, or death caused
by the wrongful act or omission or the negligence of an employee acting in the course and scope of
his employment, or personal injury or death caused by a condition or use of tangible or real property.
See TEX . CIV . PRAC. & REM . CODE ANN . § 101.021 (Vernon 2005). Neither of those situations was
alleged by the Lusks in this case.
Further, the legislature has established governmental functions for which a municipality
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enjoys immunity unless immunity has been waived under the Texas Tort Claims Act. See TEX . CIV .
PRAC. & REM . CODE ANN . § 101.0215(a) (Vernon 2005). Specifically named is the provision of
water and sewer service. See TEX . CIV . PRAC. & REM . CODE ANN . § 101.0215(a)32. Therefore, due
to the City’s immunity, the Lusks are precluded from filing a suit for breach of contract related to
the laying of the sewer lines that cross their trailer park. See City of San Antonio v. BSR Water Co.,
190 S.W.3d 747, 753 (Tex. App.–San Antonio 2005, no pet.). Furthermore, the City asserted two
grounds for judgment and the trial court did not specify the ground sustained. The Lusks do not
complain that the trial court erred in basing the partial summary judgment on the City’s estoppel
argument. The record supports the trial court’s ruling on the City’s motion for summary judgment
on the Lusks’ breach of contract claim. The Lusks’ cross issue is overruled.
INVERSE CONDEMNATION – AFFIRMATIVE DEFENSES
The City appeals from the jury verdict and trial court rulings concerning the inverse
condemnation claim. In its first four issues, the City argues that the Lusks consented to the easement
and waived their complaints.
Standard of Review
A trial court may disregard a jury’s findings and grant a motion for judgment notwithstanding
the verdict if a directed verdict would have been proper. Fort Bend County Drainage Dist. v.
Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). A directed verdict for a defendant is proper if the
evidence conclusively establishes the movant’s right to judgment or is insufficient to raise a fact
issue on a vital fact. Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
In reviewing trial court rulings on motions for directed verdict and for judgment notwithstanding the
verdict, we follow the standard of review for assessing the legal sufficiency of the evidence. See City
of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
When the party who had the burden of proof at trial attacks the legal sufficiency of an adverse
finding, that party must show that the evidence establishes, as a matter of law, all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In our review,
we first examine the record for evidence supporting the adverse finding, crediting favorable
evidence, if a reasonable jury could, and disregarding evidence to the contrary, unless a reasonable
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jury could not. See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); Dow
Chem. Co., 46 S.W.3d at 241. If there is no evidence to support the finding, we examine the entire
record to determine if the contrary proposition is established as a matter of law. Dow Chem. Co.,
46 S.W.3d at 241. We will sustain the issue only if the contrary proposition is conclusively
established. Id. A matter is conclusively established only if reasonable people could not differ in
their conclusions. City of Keller, 168 S.W.3d at 816.
When reviewing a factual sufficiency challenge to an issue upon which that party had the
burden of proof, the moving party must demonstrate that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. The court of appeals
must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so
weak or if the finding is so against the great weight and preponderance of the evidence that it is
clearly wrong and unjust. Id. The reviewing court may not substitute its opinion for that of the jury,
as it is the jury’s role to judge the credibility of witnesses, to assign the weight afforded their
testimony, and to resolve inconsistencies within or conflicts among the witnesses’ testimony.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Consent
In its first issue, the City contends that the trial court erred in overruling its motions for
directed verdict and for judgment notwithstanding the verdict because the evidence proved as a
matter of law that the Lusks consented to the north–south sewer line. In its second issue, the City
contends that the jury’s answer to Question Number 1, that the Lusks did not consent to an easement
for the installation of the second sewer line, is against the great weight and preponderance of the
evidence and is manifestly unjust.
Article I, section 17 of the Texas Constitution provides that “[n]o person’s property shall be
taken, damaged or destroyed for or applied to public use without adequate compensation being made,
unless by the consent of such person.” TEX . CONST . art I, § 17. An inverse condemnation
proceeding is the proper avenue to seek redress when property has been taken or damaged for public
use without compensation or a proper condemnation proceeding. City of Houston v. Texan Land
& Cattle, Co., 138 S.W.3d 382, 287 (Tex. App.–Houston [14th Dist.] 2004, no pet.). The
proceeding is denominated “inverse” because the property owner brings the suit. Id. Takings are
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classified as either physical or regulatory. City of Sherman v. Wayne, 266 S.W.3d 34, 43 (Tex.
App.–Dallas 2008, no pet.). A physical taking occurs when the government authorizes an
unwarranted physical occupation of an individual’s property. Id. Physical possession is a
categorical taking for which compensation is required. Id.
Consent is an agreement, approval, or permission as to some act or purpose, given voluntarily
by a competent person. BLACK’S LAW DICTIONARY 300 (7th ed. 1999). Consent is an affirmative
defense to a landowner’s takings claim. See Patel v. City of Everman, 179 S.W.3d 1, 8 (Tex.
App.–Tyler 2004, pet. denied). Consent can be manifested by acts and conduct. See Vandeventer
v. All Am. Life & Cas. Co., 101 S.W.3d 707, 712-13 (Tex. App.–Fort Worth 2003, no pet.).
The March 8, 2005 easement calls for a single strip of land to be used for the sewer easement.
The testimony of Scott Lusk, which was unobjected to by the City, showed that the easement he
agreed to ran down the Lusks’ driveway through their trailer park on an east–west axis. Nothing in
the easement contemplated construction of a second sewer line running on a north–south axis across
the Lusks’ property. The placement of the north-south sewer line was therefore an additional taking
not covered by the March 8, 2005 easement. Further, Scott Lusk immediately told Clyde Smith,
senior administrator of the City of Emory, that the second sewer line being laid on the north–south
axis was not part of the written easement. Smith did not attempt to contradict this testimony.
The City contends that Lisa Lusk consented to the laying of the second sewer line while she
was a member of the city council in Emory. Even had her actions as a councilwoman constituted
consent, this would not have been enough because the record before us shows that the trailer park
was community property held jointly by Scott and Lisa Lusk. Community property held in the names
of both spouses is considered joint management community property. See TEX . FAM . CODE ANN .
§ 3.102(c) (Vernon 2006). Lisa, acting alone, could not encumber the Lusks’ trailer park. See In
re Marriage of Morrison, 913 S.W.2d 689, 692 (Tex. App.–Texarkana 1995, writ denied); see also
Vallone v. Miller, 663 S.W.2d 97, 99 (Tex. App.–Houston [14th Dist.] 1983, writ ref’d n.r.e.). In
other words, both of the Lusks would have had to consent in order to encumber their property. See
Jean v. Tyson–Jean, 118 S.W.3d 1, 5 (Tex. App.–Houston [14th Dist.] 2003, pet. denied).
The evidence did not prove as a matter of law that the Lusks consented to the north-south
sewer line. See Dow Chem. Co., 46 S.W.3d at 241. Therefore, the trial court did not err in denying
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the City’s motion for directed verdict or its motion for judgment notwithstanding the verdict. See
id. Further, the jury’s answer to Question Number 1, that the Lusks did not consent to an easement
for the installment of the second sewer line, is not against the great weight and preponderance of the
evidence. See id. at 242. The City’s issues one and two are overruled.
Waiver
In its third issue, the City contends that the trial court erred in overruling its motions for
directed verdict and for judgment notwithstanding the verdict because the evidence proved as a
matter of law that the Lusks, by the terms of the easement, waived their right to seek damages. In
its fourth issue, the City contends that the evidence is both legally and factually insufficient to
support the jury’s answer to Question Number 2, that the Lusks did not waive their right to seek
damages. It argues that the Lusks agreed that adequate consideration was paid for the easement.
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent
with claiming that right. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987).
Ordinarily, the existence of waiver is a question of fact, based upon what is said and done. Guzman
v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 528 (Tex. App.–San Antonio 2001, pet.
denied). Waiver is largely a matter of intent, and for implied waiver to be found through a party’s
actions, intent must be clearly demonstrated by the surrounding facts and circumstances.
Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., 154 S.W.3d 878, 885 (Tex. App.–Dallas
2005, pet. denied) (op. on reh’g).
Here, the easement signed by the Lusks specifically called for one sewer line. The evidence
introduced at trial conclusively showed that not only was there a sewer line running across the Lusks’
property on a east–west axis but also a separate one running on a north–south axis. Further, the
evidence showed that when the City began laying the pipeline on the north–south axis, Scott Lusk
immediately contacted Smith to register his strong objection.
The City contends that the clause in the easement that said “[t]he consideration recited herein
shall constitute payment in full for all damages sustained” acted as a waiver by the Lusks to seek any
damages for the second sewer line. In essence, the City is contending that the Lusks gave them a
blank check to do whatever it wished to on their property. This contention is rebutted by the
language of the easement itself when it states “the Construction easement being a strip of land across
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the tract referred to above, fifty (50 feet) in width.” This language is unambiguous that only one strip
of land for a sewer easement was contemplated by the parties when the easement was executed.
Thus, the “consideration recited herein” could not apply to the north-south line. Waiver was not
proven as a matter of law, and the trial court did not err in denying the City’s motion for directed
verdict or its motion for judgment notwithstanding the verdict. See Dow Chem. Co., 46 S.W.3d at
241. Furthermore, the evidence is both legally and factually sufficient to support the jury’s answer
on the waiver issue. See id. at 241-42. Issues three and four are overruled.
INVERSE CONDEMNATION – DAMAGES
In issue five, the City contends that its motions for directed verdict and for judgment
notwithstanding the verdict should have been granted because there was no evidence of damages
sustained by the Lusks. In its sixth issue, it contends that the evidence was not legally and factually
sufficient to support the jury’s award of $10,000.00 in damages.
Standard of Review
A challenge to a damages award is reviewed as any other challenge based on legal and factual
sufficiency of the evidence. See State v. McCarley, 247 S.W.3d 323, 324 (Tex. App. -- Austin 2007,
pet. denied). When the appellant is challenging the legal sufficiency of the evidence to support a
finding on which it did not have the burden of proof at trial, the appellant must demonstrate on
appeal that no evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d
55, 58 (Tex. 1983). We may sustain a no evidence challenge only when 1) the record discloses a
complete absence of evidence of a vital fact; 2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; 3) the evidence offered to prove
a vital fact is no more than a mere scintilla; or 4) the evidence establishes conclusively the opposite
of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). We
must view the evidence in the light favorable to the verdict, crediting favorable evidence if a
reasonable factfinder could and disregarding evidence contrary to the finding unless a reasonable
factfinder could not. City of Keller, 168 S.W.3d at 807. We must determine whether the evidence
at trial would enable reasonable and fair minded people to find the facts at issue. See id. at 827.
If a party is attacking the factual sufficiency of the evidence to support a finding on an issue
for which the other party had the burden of proof, the attacking party must demonstrate that there
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is insufficient evidence to support the adverse finding. Westech Eng’g, Inc. v. Clearwater
Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App. -- Austin 1992, no writ). In reviewing this
issue, we consider, weigh, and examine all the evidence presented at trial. Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986). We set aside a finding for factual insufficiency only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
Measure of Damages
Compensation for land taken by eminent domain is measured by the fair market value of the
land at the time of the taking. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 627 (Tex. 2002).
Market value is the price the property will bring when 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.
City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). The owner of the
property can testify to its market value, even if he could not qualify to testify about the value of the
property belonging to someone else. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984); see also
Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex. 1996). The three traditional approaches
to determining market value are the comparable sales method, the cost method, and the income
method. Estate of Sharboneau, 48 S.W.3d at 182.
In arriving at the fair market value of property made the subject of condemnation
proceedings, the preferred approach is to utilize comparable sales. Id. However, the income
approach to value is appropriate when property would, in the open market, be priced according to
the income that it already generates. Id. at 183. By estimating this future income and applying a
capitalization rate, the income approach allows the appraiser to arrive at a present value for the
income producing property. Id.
When, as here, a condemnor takes only a portion of a landowner’s property, the landowner
is entitled to compensation in the amount of the market value of the part taken plus the damage to
the remainder caused by the condemnation. Zwahr, 88 S.W.3d at 627; Westgate, Ltd. v. State, 843
S.W.2d 448, 456 (Tex. 1992). Compensation for a taking’s damage to a remainder tract is measured
by valuing the land immediately before and immediately after the taking. Zwahr, 88 S.W.3d at 627.
In valuing the loss in value of remainder property in a condemnation case, the factfinder is not
entitled to depart from the range of value admitted as evidence. State v. Harrell Ranch, Ltd., 268
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S.W.3d 247, 258 (Tex. App. -- Austin 2008, no pet.). If a court of appeals holds that there is no
evidence to support a damages verdict, it should render a take nothing judgment as to that amount.
Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). If part of a damage verdict lacks
sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict.
The party prevailing in the trial court should be given the option of accepting the remittitur or having
the cause remanded. Id.
The starting point of our analysis is the charge submitted to the jury. McCarley, 247 S.W.3d
31 at 324-25. Here, the pertinent question submitted to the jury inquired as follows:
W hat damages, if any, occurred to Plaintiffs’ property as a result of the sewer line
easement along a 20 foot x 110 foot strip of land south of the road through
Plaintiffs’ trailer park?
In considering the amount of compensation, if any, to be awarded to Plaintiffs, you
are to consider the fair market value of the portion of the real property constituting
the 20 foot x 110 foot strip of land south of the road through Plaintiffs’ trailer park
along which the sewer line was installed and the diminished fair market value, if
any, to the remainder of Plaintiffs’ trailer park.
The jury was thus correctly instructed to calculate the Lusks’ damages by considering the fair
market value of the strip of land where the sewer line was installed and the diminished value of the
remainder of the trailer park. See Westgate, Ltd., 843 S.W.2d at 456.
Landowner’s Valuation Testimony
The Lusks paid $30,000.00 for the trailer park in 2001. Scott Lusk determined the amount
of damages to his property based on the income method of valuation. He testified that the property
had been rented solely for single-wide mobile homes throughout the time they had owned the trailer
park. However, three of the fourteen lots in the mobile home park could accommodate a double-
wide. Scott further testified that because the second sewer line, running north to south, had been
placed upon one of these three lots, they are able to park only a single-wide mobile home on that lot.
Scott testified that he and Lisa could receive $250.00 per month for a double-wide mobile
home on this lot. They had been receiving $160.00 per month for a single-wide mobile home on this
lot. He also testified that at the time of the taking, as well as at the time of trial, this particular lot
had been used only for a single-wide mobile home. He testified that he and Lisa had never leased
any of the lots in the mobile home park for a double-wide. However, he also testified that they had
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purchased a double-wide mobile home, but were waiting to move it into the park. Scott explained
that, because of the second sewer line, they would lose $90.00 per month, the difference between the
$250.00 that a double-wide could be leased for compared to the $160.00 for a single-wide. Scott
determined that, over a ten year period, they would lose $10,800.00, but they asked for $10,000.00
for compensation from the City for this taking.
The City contends that this is no evidence of market value. It is well settled that the naked
and unsupported opinion or conclusion of a witness does not constitute evidence of probative force
and will not support a jury’s finding even when admitted without objection. Dallas Ry. & Terminal
Co. v. Gossett, 156 Tex. 252, 256, 294 S.W.2d 377, 380 (1956). When economic testimony is
introduced into a trial, it must be based on objective facts, figures, or data. See Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992). Further, the income approach to value is
based on income that the business already generates. See Estate of Sharboneau, 48 S.W.3d at 183.
Here, the Lusks had never rented a double-wide mobile home in their trailer park during the
five years in which they had owned it. Scott’s testimony using the income approach was purely
speculative in assuming that they could lease the lot for a double-wide every month for the next ten
years. Furthermore, he did not take expenses into account. Scott testified that it would cost
$5,000.00 to move a double-wide mobile home into their trailer park. This $5,000.00 should be
included in the capitalization calculations but was not part of Scott’s calculations. See Sharboneau,
48 S.W.3d at183. Therefore, Scott’s testimony as to the value of his property based on the income
approach amounted to nothing but speculation and conjecture. See Lefton v. Griffith, 136 S.W.3d
271, 277 (Tex. App.–San Antonio 2004, no pet.). When it is apparent that the testimony is
conclusionary, it is deemed nonprobative. Houston Cab Co. v. Fields, 249 S.W.3d 741, 749 (Tex.
App.–Beaumont 2008, no pet.). A conclusory and nonprobative opinion is legally insufficient to
support a jury verdict. Id. Moreover, the Lusks presented no probative evidence of the fair market
value of the strip of land taken and no evidence of the diminution in value to the remainder of their
property.
The City’s Valuation Testimony
The City introduced evidence of the value of the real property through Don Spencer, a local
real estate broker. Spencer testified that he determined the twenty foot by one hundred ten foot
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sewage pipeline easement on the north-south axis has a value of $990.00. He testified that he arrived
at this value by determining the square footage of the easement and then applying comparable sales
figures in the City of Emory and Rains County to the property condemned. However, he did not
consider or testify as to any diminution in the value of the remainder of the Lusks’ trailer park.
Although the Lusks attempted to prove damages based on the income approach, they
presented no probative evidence of valuation. However, the record includes some evidence of
damages, that is, the market value of the part taken, $990.00. But the evidence does not include a
showing of the diminution in value of the remainder of the land, if any, caused by the taking. See
Westgate, Inc., 843 S.W.2d at 456. The $990.00 valuation cannot support the $10,000.00 jury
verdict. Accordingly, the City’s no evidence challenge fails, and we overrule its fifth issue and that
portion of issue six complaining of no evidence. We sustain the remainder of issue six.
CONCLUSION
We affirm the trial court’s partial summary judgment on the Lusks’ breach of contract claim.
The evidence is factually insufficient to support the $10,000.00 damage award on the inverse
condemnation claim. The Lusks must be given the option of accepting a remittitur or having the
cause remanded for a new trial. See Larson, 730 S.W.2d at 641. Accordingly, we suggest a
remittitur of $9,010.00, the difference between the $10,000.00 awarded in the judgment and the
$990.00 supported by the evidence. The Lusks are given fifteen days to choose whether to remit that
amount. See TEX . R. APP . P. 46.3, 46.5. If the Lusks file a remittitur of $9,010.00 in this court
within fifteen days of the date of this opinion, the judgment of the trial court as to the inverse
condemnation claim will be reformed and affirmed with $990.00 in damages. If a remittitur is not
filed, the trial court’s judgment on the Lusks’ inverse condemnation claim will be reversed and the
cause will be remanded to the district court for a new trial. See Larson, 730 S.W.2d at 641; TEX .
R. APP . P. 46.3.
Affirmed in part and conditionally affirmed in part.
JAMES T. WORTHEN
Chief Justice
Opinion delivered January 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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