Opinion
No. 10-06-00033-CV.
Delivered and filed: December 20, 2006.
Appeal from the 18th District Court, Somervell County, Texas, Trial Court No. C09572.
BEFORE CHIEF JUSTICE GRAY, JUSTICE VANCE, AND JUSTICE REYNA.
MEMORANDUM OPINION
Appellants Stanley S. Jernigan and Jimmie L. Jernigan appeal the trial court's judgment in favor of Somervell County Water District. In two issues, the Jernigans challenge the court's failure to exclude the testimony of Jerry Jones, the Water District's expert. We will affirm the judgment.
The issue in the court below was the amount of compensation due the Jernigans for the condemnation of a 103.168 acre tract in Somervell County. On August 25, 2005, thirty days before trial, the Jernigans faxed Requests for Disclosure to the Water District. In its response to the request for "the amount and any method of calculating economic damages," the Water District replied:
The fair market value of the tract taken on February 22, 2005, is detailed in the appraisal of Jerry Jones, which was previously furnished to the Defendants' counsel. The remainder tract owned by Defendants had no diminution in fair market value, as a result of the condemnation proceedings.
In response to the request for information about testifying experts, it replied:
Jerry R. Jones . . . will testify that his opinion of the fair market value of the land the subject of this lawsuit is $561,500.00 based on his inspection and appraisal of the same. A copy of his resume is attached to his written appraisal previously furnished to Defendants.
At trial, the Jernigans presented the testimony and written appraisal report of their expert witness, Shanda McQuade, that the value of the 103.168 acre tract was $1,273,000. Jerry Jones challenged the methodology used by McQuade and testified, according to his appraisal, the tract was worth $561,500. As for the 24.87 acre remainder tract, McQuade relied on the per acre valuation she used to determine the worth of the condemned tract to determine the value of the remainder before condemnation. She then discounted the remainder's value by 75% because the dam would render the land "basically useless." She testified that she did not use "statistics, studies, educational pamphlets, comparable sales or anything else dealing with people purchasing or selling land below dams" to support this reduction.
The Jernigans objected to Jones's testimony concerning damages to the remainder on grounds that he was not qualified to testify as to that tract, did not address the remainder damages in his appraisal report, and had testified that he had no opinion as to the value of the remainder at the earlier special commissioners' hearing.
At a hearing outside the presence of the jury, Jones explained that he had an opinion concerning the value of the remainder based on (1) the location of the dam and water treatment plant in relation to the remainder tract and (2) the existence of successful developments near dams in Somervell, Hood, and Tarrant Counties. The Jernigans' objection was overruled, and Jones testified that the market value of the 24.87 acre tract would not be diminished by the building of a dam and water treatment facility on the condemned tract. The jury adopted Jones's calculations and found that the market value of the 103.168 acre tract, as of February 22, 2005, was $561,000 and that there was no diminution in value as to the 24.87 acre tract.
Expert Testimony
In their first issue, the Jernigans argue that the trial court erred in allowing Jerry Jones to testify as to the 24.87 acre tract because the Water District had not adequately disclosed the substance of his testimony in response to their Requests for Disclosure. We review the trial court's decision to admit or exclude expert testimony for an abuse of discretion. See E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). The court abuses its discretion by acting without reference to any guiding rules or principles. Id.
A party may request another party to designate and disclose information concerning a testifying expert through a request for disclosure. TEX. R. CIV. P. 194. When a party fails to make, amend, or supplement a discovery response in a timely manner, the evidence may be excluded. TEX. R. CIV. P. 193.6(a). The remedy is mandatory and automatic unless the court finds that there was good cause for the failure to amend or supplement, or that the failure will not unfairly surprise or prejudice the other party. Id; Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). The burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence. TEX. R. CIV. P. 193.6(b).
The Water District's response to the Request for Disclosure, filed approximately six months after the special commissioners' hearing, indicated that Jones would testify that "[t]he remainder tract owned by Defendants had no diminution in fair market value, as a result of the condemnation proceedings." Upon objection to Jones's testimony, the Water District read this response to the trial court. Although the District's response to the discovery request was not complete, we conclude that the trial court did not abuse its discretion in admitting the expert testimony. The court could have found that the Jernigans would not have been unfairly surprised by the no-damages testimony. Accordingly, we overrule the first issue.
Having found that the trial court did not abuse its discretion, we need not address whether admitting the expert testimony was reasonably calculated to cause the rendition of an improper judgment.
Conclusion
We affirm the judgment of the trial court.
Affirmed