State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam)
(eminent domain, condemnation appeal)
[W]e conclude that access to the southern remainder is not materially and substantially
impaired and the landowners are not entitled to severance damages as a matter of law. It
was therefore error to allow evidence of diminished value to the remainder resulting from
a change in the property’s highest and best use.
THE STATE OF TEXAS v. DAWMAR PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND HOWARD
WAYNE GRUETZNER AND BEVERLY ANN GRUETZNER (A/K/A BEVERLY G. SHAW), CO-INDEPENDENT
EXECUTORS OF THE ESTATE OF MARTHA LILLIAN ATTAWAY GRUETZNER (A/K/A MARTHA LILLIAN
ATTAWAY GRUETSNER); from McLennan County; 10th district (10-06-00136-CV, ___ SW3d ___, 05-30-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and remands the
case to the trial court.
Per Curiam Opinion
Opinion below: State v. Dawmar Partners, Ltd. (Tex.App. - Waco, May 30, 2008, pet. granted) (The State of
Texas brings this appeal from a judgment in a condemnation proceeding where the jury awarded the landowners
$964,279.44 for the value of the property taken by the State and the damage to the remainder. Because the
trial court did not err in admitting testimony of damages to the remainder and because it did not err in admitting
testimony of value by Howard Gruetzner and Randy Reid, we affirm the trial court’s judgment.)
State of Texas v. Dawmar Partners, Ltd. (Tex. 2008)(per curiam)
In this condemnation case, the State of Texas challenges both the amount awarded for land taken as
part of a highway improvement project and the compensability of severance damages to the remainder.
The principal issue is whether the landowners are entitled to severance damages resulting from
permanent denial of direct access to the highway if the restrictions on access changed the “highest and
best use” of the property from commercial to residential.
We hold that the landowners are not entitled to compensation for diminished value of the remainder
because they have not suffered a material and substantial impairment of access. We therefore reverse
the portion of the court of appeals’ judgment awarding severance damages and remand that claim to
the trial court for further proceedings. The portion of the judgment awarding damages for the land taken
As part of a project to widen and elevate FM 1695, the State instituted condemnation proceedings to
acquire approximately 12.89 acres of an unimproved 79.546 acre tract of land in Hewitt, Texas owned
by Dawmar Partners, Ltd., LP and Howard Wayne and Beverly Ann Gruetzner, co-independent
executors of the estate of Martha Lillian Attaway Gruetzner (collectively “the landowners”). The taking
divided the larger tract into a 3.671 acre northern remainder and a 62.981 acre southern remainder,
and the only dispute in the condemnation proceeding was the amount of compensation owed to the
landowners for the land taken and damage to the southern remainder. The landowners sought
severance damages to the southern remainder because safety concerns related to the highway project
necessitated eliminating all direct access to FM 1695 and its frontage roads from that portion of the
tract, which reportedly changed the highest and best use of the property from commercial use to
residential use despite the existence and extent of direct access to two other public roads.
The landowners objected to the special commissioners’ award of $267,000.00 for the taking and
severance damages, and the case proceeded to trial. See Tex. Prop. Code § 21.018(a). At trial, the
highest and best use of the property before condemnation was the central issue and was hotly
contested. The landowners introduced evidence that the highest and best use of the property was to
hold it for subsequent commercial development. There was also evidence that the loss of direct access
to FM 1695 made the remainder suitable only for residential development. Although there was
considerable conflicting evidence regarding the highest and best use of the property before and after
the taking, the salient facts about the condition of the property, the degree of impaired access,
remaining access points, and the status of development plans were undisputed.
The State argued that (1) diminished value resulting exclusively from restrictions on access is not
compensable unless access is materially and substantially impaired, (2) the landowners retain
sufficient access to the remainder property and FM 1695 via two other public roads, and (3) expert
testimony regarding the market value of the condemned land and damages to the remainder was
unreliable. The trial court entered judgment on a jury verdict awarding $561,662.64 in damages for the
condemned land and $402,616.80 in severance damages, and the court of appeals affirmed. __ S.W.
3d at __.
The focus of this appeal is the compensability of severance damages. The landowners claim that the
restrictions on access lowered the total value of the property by changing the highest and best use of a
separate economic unit from commercial to residential. The arguments in favor of compensability, as
we perceive them, are: (1) diminished value resulting from a change in a property’s highest and best
use is independently compensable or (2) an impairment of access that changes a property’s highest
and best use is necessarily material and substantial or (3) the reasonableness of access must be
evaluated in light of a property’s highest and best use.
We have long held that a change in a property’s use due to condemnation is relevant to the fair market
value of the property, but that does not mean all diminished value is compensable. See County of Bexar
v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004) (“Damages to remainder property are generally
calculated by the difference between the market value of the remainder property immediately before
and after the condemnation, considering the nature of any improvements and the use of the land
taken.”) (citing references omitted). To the contrary, diminished value is compensable only when it
derives from a constitutionally cognizable injury. See Felts v. Harris County, 915 S.W.2d 482, 484 (Tex.
1996) (citing State v. Schmidt, 867 S.W.2d 769, 774 (Tex. 1993)). The injury the landowners in this
case have identified is a loss of value resulting exclusively from the denial of direct access to FM 1695
and its frontage roads.
It is well settled that diminished value resulting from impaired access is compensable only when access
is materially and substantially impaired. City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex. 1969).
Whether access has been materially and substantially impaired is a threshold question of law reviewed
de novo. City of San Antonio v. TPLP Office Park Props., L.P., 218 S.W.3d 60, 66 (Tex. 2007) (citing
State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)).
The landowners apparently argue that access is materially and substantially impaired, as a matter of
law, when loss of access changes the highest and best use of the property. If we were to accept this
proposition, it would be a rare case in which a reduction of access would not have some impact on the
value of property, and the “material and substantial” limitation would be effectively eliminated in the vast
majority of cases, contrary to our body of impaired access law. See, e.g., Schmidt, 867 S.W.2d at 773-
74; Archenhold Auto. Supply Co. v. City of Waco, 396 S.W.2d 111, 114 (Tex. 1965); Texland Corp.,
446 S.W.2d at 2; see also Heal, 917 S.W.2d at 11 (absent a material and substantial impairment of
access, the landowners were not entitled to compensation “even if the remainder of their property has
lost some degree of value”). We reject an analysis that would effect such a result. This is not to say that
a change in the highest and best use of property is irrelevant to the amount of damages, but the
threshold legal issue that must be resolved before the jury can properly consider evidence of an alleged
change in value is whether there has been a material and substantial impairment of access, a matter to
which we now turn.
In determining whether diminished value due to impaired access is compensable, we first look to
whether other access points remain after the taking and whether those access points are reasonable.
See, e.g., Archenhold, 396 S.W.2d at 114 (holding that access was not materially and substantially
impaired when one access point was closed but another access point on a public street remained
unaffected). The question presented by this case is how the remaining access should be evaluated. We
have implicitly rejected the proposition that the degree of impairment of access must be evaluated in
light of a property’s highest and best use. See City of Houston v. Fox, 419 S.W.2d 819, 819-20 (Tex.
1967) (reversing a court of appeals opinion that held: “It is our opinion that a material consideration in
determining the [question] of reasonable access is the highest and best use of the property”); see also
Schmidt, 867 S.W.2d at 774 (characterizing the Court’s holding in Fox as having “rejected” highest and
best use as a material consideration in an impairment of access inquiry). Moreover, we have typically
analyzed remaining access in light of the actual or intended uses of remainder property as reflected by
existing uses and improvements and applicable zoning. See, e.g., Texland, 446 S.W.2d at 4 (holding
that access was impaired, even though normal access remained reasonably available, because
access for which the property was specifically intended was rendered unreasonably deficient).
In contrast, we have rejected impairment of access claims based on speculative or hypothetical uses of
remainder property. See Santikos, 144 S.W.3d at 460–61 (holding that access was not impaired
simply because installing driveways in conjunction with hypothetical development plans of unimproved
property would be more difficult and expensive after condemnation); State v. Delany, 197 S.W.3d 297,
300 (Tex. 2006) (same). In Santikos, we held that the landowner could not recover severance damages
based on “diminished market perception,” reasoning that “noncompensable damages . . . cannot be
transmuted to compensable ones by asserting them under a pseudonym.” Santikos, 144 S.W.3d at
462. We then held that the landowner’s characterization of its claim as one for “‘reduced physical
adaptability’ (i.e., development will be less extensive and more expensive),” was “immaterial” because
“[t]he sole reason alleged for having to alter development plans is because of impaired access.” Id. at
461. In terms of the remaining access, we held that the landowner could not recover damages because
“it is hard to find any effects on access here, as the tract has no businesses, homes, driveways, or other
improvements of any kind.” Id. at 460.
We also rejected a similar claim for severance damages in another case involving diminished access
to raw land. Delany, 197 S.W.3d at 300. In Delany, we held that “while condemned property may be
appraised at its highest and best use, remaining property on which there are no improvements and to
which reasonable access remains, is not damaged simply because hypothetical development plans
may have to be modified.” Id. (citation omitted); see also Schmidt, 867 S.W.2d at 773 (“‘Evidence
[regarding severance damages] should be excluded relating to remote, speculative, and conjectural
uses, as well as injuries, which are not reflected in the present market value of the property.’” (quoting
State v. Carpenter, 89 S.W.2d 194, 200 (Tex. 1936)).
This case similarly lacks evidence of a material and substantial impairment of access. Although the
southern remainder no longer has direct access to FM 1695 and its frontage roads, the remainder
retains 2,165 feet of access to Old Ritchie Road and will acquire 1,827 feet of access to New Ritchie
Road. New Ritchie Road is a two-lane road with a center turn lane, curbs, and gutters. Both roads
are public roads that run virtually the entire length of the southern remainder, and both intersect FM
1695 at or near the point where the remainder fronts the highway. In addition, the property at issue is
unimproved, and there is no evidence of existing driveways or drainage systems that would make
access to the available roads impossible or impracticable. Furthermore, the property is zoned for
residential use, and there is no evidence of a pending request for a zoning change, existing
commercial development plans, or a contract for commercial use.
The restrictions on access in this case have resulted only in increased circuity of travel, which this Court
has repeatedly held is not compensable. See, e.g., State v. Wood Oil Distrib., Inc., 751 S.W.2d 863,
865 (Tex. 1988). Moreover, we recently reaffirmed in TPLP Office Park that access is not materially
and substantially impaired merely because other access points are significantly less convenient. 218 S.
W.3d at 66–67 (holding that closure of the primary access point, which was used by eighty-percent of
the tenants, did not impair access because at least six other points of ingress and egress remained,
even though tenants had to travel an additional two miles to reach the property). Here, there are no
existing structures to limit access to the more than 3,992 feet of access points along Old and New
Ritchie Roads. In light of the considerable amount of remaining access to and from the property, we
could not conclude that there is a material and substantial impairment of access in this case without
imposing a requirement that there be some degree of direct access to the highway. While the degree
of residual access to an arterial road was integral to our determinations in Santikos and Delany that
access was not materially and substantially impaired, we neither held nor implied that lack of access to
an arterial road established impairment of access as a matter of law. We decline to impose such a
requirement because it would be inconsistent with our well-developed case law regarding circuity of
For the foregoing reasons, we conclude that access to the southern remainder is not materially and
substantially impaired and the landowners are not entitled to severance damages as a matter of law. It
was therefore error to allow evidence of diminished value to the remainder resulting from a change in
the property’s highest and best use. We need not consider in this case the extent to which remaining
access can ever be properly evaluated in light of reasonably foreseeable future uses because any
future commercial development of the southern remainder is purely speculative. Cf. Santikos, 144 S.W.
3d at 461 (noting that “[t]his case might be quite different if driveways or other improvements were in
place”); State v. Allen, 870 S.W.2d 1, 2 (Tex. 1994) (“[A] change in the best use due to [a] taking can
create compensable damages to the remainder in some cases . . . .”); cf. also 4A Julius L. Sackman,
Nichols on Eminent Domain § 14.02[b][ii], at 14-10 (3d ed. 2004) (“The determination of the highest
and best use . . . considers ‘the highest and most profitable use for which the property is adaptable and
needed or likely to be needed in the reasonably foreseeable future.’” (quoting Olson v. U.S., 292 U.S.
246, 255 (1934))).
The State also challenges the amount awarded for the land taken, arguing that two of the landowners’
witnesses, Randy Reid and Howard Gruetzner, were not qualified to offer opinions on its value. The
State contends that the erroneous admission of this testimony probably caused the rendition of an
improper judgment as evidenced by the fact that the jury awarded the same amount to which these
witnesses testified. See Tex. R. App. P. 61.1(a)(1). We conclude that Reid’s and Gruetzner’s testimony
was cumulative of substantially similar evidence from another expert, David Bolton, whose testimony
has not been challenged on appeal. Cf. Tex. R. App. P. 53.2(f). Therefore, any error in admitting Reid’s
and Gruetzner’s testimony was harmless. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396
(Tex. 1989) (“The erroneous admission of testimony that is merely cumulative of properly admitted
testimony is harmless error.”).
Because the jury’s award included noncompensable damages to the remainder, the State argues that
we must remand the entire case for a new trial. See Interstate Northborough P’Ship v. State, 66 S.W.3d
213, 220 (Tex. 2001) (“When a condemnation-damages award is based on evidence of both
compensable and noncompensable injuries, the harmed party is entitled to a new trial.”).
In this case, however, the compensation questions submitted to the jury were segregated between the
compensable and noncompensable damages. As a result, a new trial is not necessary to remedy the
erroneous award of severance damages. Cf. id. at 218 (noting that the jury answered only a single
damages question); cf. also Santikos, 144 S.W.3d at 458, 464 (suggesting that the jury answered a
single broad-form damages issue). However, because the State seeks only a remand from this Court,
we must remand the severance damages issue to the trial court even though the record would
otherwise support a rendition of a judgment in the State’s favor on that claim. See State v. Heal, 917 S.
W.2d 6, 11 n.2 (Tex. 1996).
Accordingly, without hearing oral argument, we affirm the portion of the judgment awarding
compensation for the condemned land, but we reverse the portion of the judgment awarding severance
damages and remand that part of the case to the trial court for further proceedings consistent with this
opinion. See Tex. R. App. P. 59.1.
OPINION DELIVERED: September 26, 2008
 While the condemnation petition was pending, Martha Lillian Attaway Gruetzner passed away, and her estate
was substituted as a party.
 In the record, the names of these roads are spelled both as “Richie” and “Ritchie”. It is unclear which is the
correct spelling, but the City of Hewitt website uses the spelling we have adopted in this opinion.
See http://www.cityofhewitt.com (accessed September 23, 2008).