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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-16-00290-CV

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IN RE J. ADAMS, LLC

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Original Proceeding

County Court at Law No. 1 of Jefferson County, Texas

Trial Cause No. 125,421

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MEMORANDUM OPINION

In this mandamus proceeding, J. Adams, LLC (Adams) contends the trial 

court abused its discretion by granting Jefferson County’s (the County) motion for 

new trial after Adams refused to accept a remittitur in a condemnation case. In its 

order granting the new trial, the trial court found that the jury’s award to Adams of 

“the difference between the market value of Plaintiff’s whole property before the 

taking and the market value of Plaintiff’s remaining property after the taking and

cost[] to cure damages as presented by the evidence separately and additionally 

permits a double recovery which is not permitted under Texas law.” According to 
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Adams, “[b]ecause [Adams’s expert’s] estimated cost to cure mitigated damages 

distinct from the decrease in market value of the remaining property that resulted 

from the County’s taking, the inclusion of these damages did not constitute a 

double recovery.” Adams argues that factually sufficient evidence supports the 

jury’s verdict, and that a trial court cannot grant a new trial conditioned on a 

party’s refusal to accept a remittitur if factually-sufficient evidence supported the 

jury’s verdict. See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 

(Tex. 2009) (orig. proceeding) (citing Larson v. Cactus Util. Co., 730 S.W.2d 640, 

641 (Tex. 1987). We deny the petition for a writ of mandamus.

Underlying Facts

In September of 2010, the County filed Plaintiff’s Statement and Petition of 

Condemnation against Adams to acquire property in Jefferson County with 

existing road frontage on Frint Road. As part of a project to expand or improve 

LaBelle Road, the County condemned three parcels totaling 4.21 acres out of 

Adams’s 69 acre tract. The only issue at trial pertained to damages. In estimating 

the market value of the property, Adams’s expert, Wayne Baer, reasoned that the 

land was comprised of two separate economic units: (1) approximately eight acres 

of frontage along Frint Road containing the original location of a sandblasting and 

painting facility and (2) approximately sixty-one acres with frontage along Chance 
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Drive where Adams decided to relocate a new sandblasting and painting facility.

The separate economic units were depicted by Adams’s real estate appraiser as 

follows:

The County condemned three parcels--parcel 28A, 28B, and 28C--totaling 

4.21 acres out of the 69-acre parent tract owned by Adams. Parcels 28B and 28C 

are located within the 8 acres and parcel 28A crosses the 61.005 acres. Adams’s 

expert depicted the parcels as follows:
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The primary dispute between the parties at the trial pertained to the calculation and 

amount of the alleged damage to the remainder of the property after the partial 

taking.

Adams’s principal owner, Judd Adams, testified at trial that operating the 

sandblasting and painting facility at its original location on the 69-acre tract could 

result in overspray claims from individuals travelling along the proposed alignment 

of the road on Parcel 28A. Concluding that the taking rendered the original paint 

and sandblasting facility unusable for its original use, Adams built a new 

sandblasting and painting facility elsewhere on the remainder of the 69-acre tract at 
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a cost of approximately $180,000. Judd Adams also testified that after the County 

filed the condemnation suit, Adams sold the former sandblasting and painting 

facility and approximately six to eight acres

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of land adjacent thereto to a pipe 

fabricator for $150,000.

Adams’s real estate appraiser, Wayne Baer, testified that the sandblasting 

and painting facility contributed $351,433 in value to the property before the 

taking, and after the taking, the contributory value of the improvements is 

$175,716. According to Baer, the fifty percent diminution in contributory value 

was in addition to the cost to cure that Adams incurred by relocating the 

improvements, which Baer estimated to be $199,868. Baer testified that unless his 

calculation included cost to cure as a component of damages, the value of the 

remaining improvements would be diminished even more. According to Baer, 

without relocating the facility, in his opinion the original sandblasting site would 

have no value or negative value because the improvements would have to be 

removed to restore the property to a different highest and best use. In addition to 

damages of $80,248 for the part taken, Baer testified that Adams was also entitled 

to $175,716 for the damage to the remainder and $199,868 for the cost to cure. The 

total damage amount due, according to Baer, is $455,832. 

 

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The testimony in the record appears to reference six, eight, and ten acres 

being sold by Adams along with the old sandblasting and painting facility. 
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The County’s real estate appraiser, Stephen Duplantis, testified at trial that 

he estimated the total compensation at $88,500. According to the record, prior to 

trial the County hired another real estate appraiser, Jimmy Bishop, to perform a 

real estate appraisal and provide a report. Bishop prepared two reports and an 

addendum, but Bishop was not available to testify at trial. The County engaged 

Duplantis to review the other appraisals and to testify at trial. Both Baer and 

Duplantis referenced Bishop’s report and addendum in their testimony to the jury. 

Bishop’s addendum provides his estimate of the just compensation due to 

Adams as $125,000 for Parcel 28-A, $72,000 for Parcel 28-B, and $3,885 for 

Parcel 28-C, for a total compensation of $201,000. Duplantis agreed with part of 

Bishop’s appraisal and disagreed with other parts of Bishop’s appraisal. Duplantis 

testified that the just compensation for the three parcels should be $88,500. 

The jury was asked one question:

Jury Question No. 1

By a preponderance of the evidence, what do you find to be the 

difference between the market value of Plaintiff’s whole property 

before the County’s taking on December 20, 2010, and the market 

value of Plaintiff’s remaining property after the taking, giving 

consideration to the uses to which the condemned parts are to be 

subjected?

The jury was instructed that it could “consider necessary modifications to the 

remaining property resulting from the condemnation, if any, in determining the 
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market value of the remaining property after the taking.” The jury returned a 

verdict in the amount of $455,832. 

After the verdict, the County filed a motion to disregard the jury’s finding, 

arguing that Adams could not recover cost to cure as a separate item of damage 

and that the jury’s award to Adams of both the diminution in market value and the 

cost to cure constituted a double recovery. The County requested a remittitur in the 

amount of $199,868 and entry of judgment in the amount of $255,964. On May 19, 

2016, the trial court entered judgment on the jury’s verdict. However, the trial 

court simultaneously entered a Suggestion of Remittitur or Alternatively New 

Trial, concluding that allowing Adams to recover the difference in the market 

value of its property before and after the taking, including cost-to-cure damages, 

“permits a double recovery which is not permitted.” Under the trial court’s 

suggestion of remittitur, Adams was required to accept the remittitur or be 

subjected to a new trial. Adams did not accept the suggestion of remittitur. The 

County then filed a motion for new trial on several grounds. On June 8, 2016, the 

trial court set aside its May 19, 2016 judgment on the verdict and ordered a new 

trial based on the grounds suggested in the County’s motion for new trial. Adams 

then filed a Petition for Writ of Mandamus with this Court.
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In ordering a new trial, the trial court found that “under the circumstances of 

the case,” the “cost[] to cure damages” amounted to an improper recovery, 

resulting in “an erroneous measure of damage in excess of [the expert’s] 

determination of the loss of value to the remainder resulting from the taking.” The 

trial court also concluded that “[b]oth the double recovery and the errors in 

allowing consideration by the jury of an improper element of damages[]” could be 

cured by a remittitur but the “Plaintiff has elected not to file the suggested 

remittitur necessitating the granting of a new trial.”

Standard of Review

A trial court’s order granting a new trial may be reviewed by an appellate 

court in a mandamus proceeding. See In re United Scaffolding, Inc., 377 S.W.3d 

685, 688-89 (Tex. 2012) (orig. proceeding). A writ of mandamus will issue to 

correct a clear abuse of discretion committed by a trial court in granting a new 

trial. In re Whataburger Rests. LP, 429 S.W.3d 597, 598 (Tex. 2014) (orig. 

proceeding) (per curiam) (citing In re Toyota Motor Sales, U.S.A., Inc., 407 

S.W.3d 746, 756-57 (Tex. 2014) (orig. proceeding)). The Texas Supreme Court 

has stated:

[A] trial court does not abuse its discretion so long as its stated reason 

for granting a new trial (1) is a reason for which a new trial is legally 

appropriate (such as a well-defined legal standard or a defect that 

probably resulted in an improper verdict); and (2) is specific enough
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to indicate that the trial court did not simply parrot a pro forma 

template, but rather derived the articulated reasons from the particular 

facts and circumstances of the case at hand.

Toyota, 407 S.W.3d at 756-57 (emphasis in original) (quoting United Scaffolding, 

377 S.W.3d at 688-89). A new trial order “cannot stand[,]” however, when the 

“trial court’s articulated reasons are not supported by the underlying record.” Id. at 

758. The appellate court continues to apply “the abuse-of-discretion standard . . . to 

merits review just as it does in all mandamus proceedings.” In re Bent, 487 S.W.3d 

170, 178 (Tex. 2016).

Arguments of Parties

In this mandamus proceeding, Adams argues that the trial court abused its 

discretion in conditioning a new trial upon Adams’s failure to accept a remittitur 

when “factually sufficient evidence supported the jury’s verdict” that the loss to 

the remainder of Adams’s property was $455,832. The County disagrees and 

argues that Adams’s expert improperly calculated damages and that Adams has 

been allowed a duplicate recovery. 

Damages Available in a Partial Taking

The measure of compensation in a partial taking is “‘the market value of the 

part taken plus damage to the remainder caused by the condemnation.’” State v. 

Petropoulos, 346 S.W.3d 525, 530 (Tex. 2011) (quoting Westgate, Ltd. v. State, 
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843 S.W.2d 448, 456 (Tex. 1992)). Determination of the fair market value of the 

remainder property requires measuring the difference between the value of the 

property immediately before and immediately after the taking. Exxon Pipeline Co. 

v. Zwahr, 88 S.W.3d 623, 627 (Tex. 2002). Evidence and testimony regarding the 

cost to relocate certain facilities or improvements may be admissible, “not as a 

separate element of damage, but as information that could be used by the jury to 

arrive at the diminished value of the remainder tract after the taking, if any.” City 

of Sugar Land v. Home & Hearth Sugarland, L.P., 215 S.W.3d 503, 514 (Tex. 

App.—Eastland 2007, pet. denied). Cost to cure is a method of decreasing the 

amount of damages below the diminution in market value, not increasing the 

damages beyond the diminution in market value caused by the taking. Id. “This 

approach allows the property owner to recover the cost to cure the portion of the 

damage that can be cured, plus any diminution in value to the remainder which 

cannot be cured, when the total of those two is less than the overall diminution in 

value of the remainder uncured.” 4A Nichols, Eminent Domain, § 14.02[3][d]. 

To be admissible evidence upon which the jury may base its award of 

damages, the expert’s calculation must be based upon a reliable methodology. See 

E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 

1995). To the extent that Baer calculated cost to cure as a distinct element of 
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damage separate from the diminution in the fair market value of the improvements, 

the trial court reasonably could have concluded that Baer’s testimony had been

improperly admitted before the jury and was factually insufficient to support the 

damage award because his methodology was unreliable. See Home & Hearth 

Sugarland, 215 S.W.3d at 510. After reviewing Adams’s petition, the record, and 

the response filed by the real party in interest, Jefferson County, as well as the 

reply brief, we conclude that the trial court provided a reasonably specific and 

valid explanation for granting the motion for new trial that is supported by the 

record. See Toyota, 407 S.W.3d at 759-60. Accordingly, we deny the petition for a 

writ of mandamus.

PETITION DENIED. 

PER CURIAM

Submitted on September 23, 2016

Opinion Delivered November 17, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.