Opinion
14-24-00206-CV
12-17-2024
LITA DEVELOPMENT LLC, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1137837
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
MEMORANDUM OPINION
Frances Bourliot Justice
Lita Development LLC appeals the trial court's judgment in an eminent domain proceeding initiated by the State of Texas. After a jury trial, the trial court entered its judgment ordering the State to pay Lita $34,680 for the acquisition of a drainage easement across property Lita owns. In eight issues, Lita contends that the trial court erred in (1) excluding exhibits, (2) preventing Lita's engineer from offering opinion testimony, (3) allowing the State's appraiser to testify as to fair market value, and (4) restricting the testimony of Lita's owner, that (5) the court committed fundamental error in excluding the opinions of Lita's owner and engineer, that (6) the court erred in denying Lita's requested jury instructions; and that the exclusion of Lita's evidence (7) resulted in harm and (8) lead to an unjust result. We affirm.
Background
Lita owns a 30-acre tract in Baytown, Texas. The State sought to acquire an easement across 1.3872 acres of this property to aid drainage related to a Department of Transportation highway improvement project on SH99. To this end, the State filed a Petition for Condemnation in the trial court. The court then appointed three special commissioners who held a hearing and awarded Lita and another property owner $34,866 for the taking. Lita thereafter filed an objection to the award, and the trial court held a jury trial on the matter.
At trial, Lita asserted, in part through its property appraisal expert, that although the property was vacant at the time of trial, Lita had plans to develop the property into a master planned residential and commercial development, which the taking of the drainage easement prevented or delayed. The State's appraiser, however, indicated that the property was only suitable for more limited use, such as "an office warehouse or manufacturing[,] an RV park [or] camping." The jury determined that the fair market value of the 1.3872 acres taken for the easement was $34,680 and that there was no damage to the remainder of Lita's tract of land. As mentioned above, the trial court entered judgment in keeping with the jury's verdict.
General Condemnation Law
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 consent of such person." Tex. Const. art. I, § 17. Thus, private land may be condemned only for public use with payment of adequate compensation. City of Paris v. Mason, 37 Tex. 447, 451 (1873); Morello v. Seaway Crude Pipeline Co., 585 S.W.3d 1, 29 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). Landowners are entitled to the fair market value of the taken land. 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) (quoting State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979, 980 (Tex. 1936)); State v. Audie Gray Fam. L.P., 650 S.W.3d 727, 733 (Tex. App.-Houston [14th Dist.] 2022, no pet.).
The market value of property in a condemnation proceeding is determined as of the date of the taking. Morello, 585 S.W.3d at 29. A property's current market value, however, includes consideration of "the market for its possible future use." Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012) (quoting Estate of Sharboneau, 48 S.W.3d at 185)); see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 611 (Tex. 2016) (explaining that the factfinder may "consider all of the uses to which the property is reasonably adaptable and for which it is, or in all reasonable probability will become, available within the foreseeable future") (quoting State v. Windham, 837 S.W.2d 73, 77 (Tex. 1992)).
When a governmental entity condemns only part of a tract, it must pay adequate compensation for the part taken and for any resulting damage to the remainder. Morello, 585 S.W.3d at 30 (citing Tex. Const. art. 1, § 17(a) and Tex. Prop. Code § 21.042(c) (providing that "damage to the property owner" includes "the effect of the condemnation on the value of the property owner's remaining property.")). The objective is to make the landowner whole by awarding it what it could have received for the land in a free market. City of Fort Worth v. Corbin, 504 S.W.2d 828, 830-31 (Tex. 1974); Morello, 585 S.W.3d at 30.
In determining fair market value, a factfinder may consider the highest and best use to which the land taken can be adapted. Zwahr, 88 S.W.3d at 628. "Highest and best use" can be defined as "the reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible and that results in the highest value." Morello, 585 S.W.3d at 30 (quoting Enbridge G & P (E. Tex.) L.P. v. Samford, 470 S.W.3d 848, 857 (Tex. App.-Tyler 2015, no pet.)). The existing use of land is presumed to be its highest and best use, "but the landowner can rebut this presumption by showing a reasonable probability that when the taking occurred, the property was adaptable and needed or would likely be needed in the near future for another use." Zwahr, 88 S.W.3d at 628.
Discussion
We will begin by addressing Lita's issues that concern the admission or exclusion of evidence (issues 1, 2, 3, 4, 7, and 8). We will then turn to Lita's assertion of fundamental error (issue 5), before discussing its complaints regarding the jury charge (issue 6).
I. Evidentiary Issues
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 918 (Tex. 2004). A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An erroneous evidentiary ruling warrants reversal only if the error probably caused the rendition of an improper judgment. Volkswagen, 159 S.W.3d at 918. In making this determination, we consider the entire record. Id.
A. Lita's Exhibits
In its first issue, Lita asserts that the trial court abused its discretion by excluding some of Lita's exhibits at trial. Under this issue, Lita insists that the State rendered the property essentially valueless by taking the drainage easement and explains that it attempted to prove the highest and best use of the property and damages through the testimony of its appraisal expert. Lita then states that the excluded exhibits would have supported the expert's highest and best use and damages analyses and that the exclusion resulted in misleading the jury and an unjust result.
What Lita does not do under this issue is offer any citation to the record (such as to what exhibits were excluded, where the exhibits could be found, where Lita offered the exhibits, or where the trial court denied their admission) or offer any argument regarding the admissibility of specific exhibits. This issue is therefore inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring that appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Accordingly, we overrule the first issue.
B. Engineer's Testimony
In its second issue, Lita asserts that the trial court erred in prohibiting Lita's engineer from giving his professional opinions during his testimony. The engineer in question owned a civil engineering firm that had been hired by Lita to draw up plans for an apartment project to be located on the property at issue in this case. Lita specifically argues in its brief that "[t]he Court erred in applying the rules for Expert Witnesses under Texas law to an interested, skilled, expert," citing McGalliard v. Kuhlmann, 722 SW 2d 694, 697 (Tex. 1986), and in prohibiting Lita's engineer from offering opinion testimony as an interested witness when it allowed employees of the State to offer such testimony.
Before trial, the State filed a motion to exclude the opinion testimony of Lita's engineer, urging, as grounds, principally that the engineer's opinions were "not based on reliable predicate" or on the condition of the property "as of the date of taking." At the hearing on the motion, the State again raised its concerns, and the following exchange then occurred between the court and Lita's counsel:
LITA's COUNSEL: We designated [the engineer] as an employee witness for Lita Development when we made our designations. . . . We have not asked that he appear as an expert witness but as a witness for Lita Development because he did all of the work.
THE COURT: So he's not going to offer any opinions? He's just going to talk about the facts?
LITA's COUNSEL: And the Court can certainly tell the jury this man operates as an agent of Lita Development. He is not an independent get-ready-for-trial brought-in expert.
THE COURT: Okay.
LITA's COUNSEL: He's not in that condition at all.
THE COURT: So he's not going to offer any opinions; okay?
LITA's COUNSEL: He's not going to give this Court-what he's going to do is appear and go through all of the problems that he experienced in doing the Lita Development and supporting the damages and issues that were involved.
THE COURT: Okay. So that's fine. He can appear as a fact witness-
LITA's COUNSEL: Correct.
THE COURT: -but not as an expert witness. And so there won't be any-
LITA's COUNSEL: And we designated him that way, Your Honor.
THE COURT: Okay. So . . . that makes it really easy. He can appear as a fact witness.
LITA's COUNSEL: I understand.
The trial court thereafter granted the State's motion. Subsequently, during the engineer's testimony at trial, the trial court overruled some of the State's objections on the basis that the engineer was offering expert testimony and sustained other such objections.
Lita clearly did not offer the engineer's testimony as an expert witness; indeed, Lita agreed at the hearing that the engineer had not been designated as an expert and would only be testifying as a fact witness. See generally Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 850-55 (Tex. 2011) (discussing Tex.R.Civ.P. 701 and 702, the designation of expert witnesses, opinion testimony by witnesses not designated as experts, and who can testify regarding property values without being designated as an expert). On appeal, Lita appears to argue that the engineer should have been allowed to offer expert opinion testimony-despite not being designated as an expert witness-because he was an "interested witness." According to the engineer's testimony, the engineering firm he owns was hired by Lita to develop plans for an apartment project. Lita offers neither argument nor citation to authority as to how this fact qualified the engineer as an interested witness who can offer opinion testimony. See Tex. R. App. P. 38.1(i); see also Reid Rd. Mun. Util. Dist., 337 S.W.3d at 850-55. The McGalliard case cited by Lita has no obvious application to the admissibility of the engineer's opinion testimony. 722 SW 2d at 697.
Moreover, it appears that Lita did not make a record of the evidence that it desired admitted, as is required to preserve error in the exclusion of evidence. See, e.g., Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 629-30 (Tex. App.- Houston [14th Dist.] 2012, pet. denied). To make a record of the excluded evidence, a party generally must inform the court of its substance by an offer of proof, unless the substance is apparent from the context. See Tex. R. Evid. 103(a)(2); see also In re Marriage of Rangel, 580 S.W.3d 675, 680 (Tex. App.- Houston [14th Dist.] 2019, no pet.) (explaining that the offer must include "the meat of the actual evidence" so that the appellate court can meaningfully assess whether the exclusion of the evidence was erroneous and harmful); In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) (explaining that the rules do not mandate a "formal" offer of proof; they require only a "short, factual recitation of what the [evidence] would show" to preserve the issue for appeal). Lita does not cite, and we have not discovered, any place in the record where it presented an offer of proof regarding the excluded testimony by the engineer. The substance of the excluded testimony is not apparent from the context. Accordingly, we overrule Lita's second issue.
C. The State's Appraiser
In issue three, Lita contends the trial court erred in permitting the State's appraiser to provide his opinion on fair market value in the absence of a valid highest and best use analysis. As set out above, the appraiser testified that the property at issue was only suitable for limited use, such as for an office warehouse, manufacturing, an RV park, or camping. While he acknowledged that the property was at the time of trial zoned for "liveable center," [sic] he opined that it should be zoned "light industrial." He further explained that it had been previously zoned as light industrial and could and should be rezoned for that purpose. He also explained his conclusions in some detail.
Lita's argument on appeal appears to be based on the fact that at the time of trial, the property was not zoned for the "highest and best use" the appraiser identified. Lita suggests his testimony as to fair market value was therefore inadmissible. As the State points out, however, Lita does not identify any place in the record where it objected to the appraiser's testimony on this ground, and we have not discovered any such objection. While challenges to the reliability of expert testimony must be preserved by a proper objection or motion in the trial court, a complaint that the expert's testimony was conclusory or speculative, and thus did not constitute probative evidence, need not be so preserved. See Volkswagen, 159 S.W.3d at 910 (discussing Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)).
However, even if we were to interpret Lita's third issue as asserting that the appraiser's testimony was speculative and therefore not probative evidence, we would still not be able to sustain this issue. Lita does not cite any authority under this issue, much less any authority supporting the conclusion that the appraiser's testimony was speculative because he asserted that the zoning for the property at the time of trial could and should be changed to accommodate what he concluded was the highest and best use for the property. Moreover, Lita does not offer cogent argument based on existing authority to explain why the appraiser's testimony was impermissibly speculative. See Tex. R. App. P. 38.1(i) (requiring that appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); In re S.A.H., 420 S.W.3d 911, 929 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (declining to craft appellant's argument for him). For these reasons, we overrule the third issue.
D. Lita's Owner's Testimony
In its fourth issue, Lita contends that the trial court erred in restricting Lita's owner's testimony regarding the highest and best use of the subject property. Specifically, Lita contends that the owner should have been allowed to testify regarding the exhibits that Lita says were excluded from evidence and offer her opinions as an interested witness. We discussed the issue of the exhibits under the first issue above, and Lita offers no new substantive argument on that issue here.
The argument regarding the owner's opinion testimony is neither properly briefed nor preserved. Lita does not offer any citation to the record as to where the trial court restricted the owner's testimony in any way. See Tex. R. App. P. 38.1(i) (requiring that appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Moreover, as with the engineer's testimony above, Lita does not cite, and we have not discovered, any place in the record where it presented an offer of proof regarding any excluded testimony by the owner. See, e.g., Comiskey, 373 S.W.3d at 629-30; Marriage of Rangel, 580 S.W.3d at 680; N.R.C., 94 S.W.3d at 806. For the foregoing reasons, we overrule the fourth issue.
E. Harm and Justice
In its seventh and eighth issues, Lita contends respectively that the exclusion of its evidence resulted in harm and lead to an unjust result in the case. See generally Volkswagen, 159 S.W.3d at 918 (explaining that an erroneous evidentiary ruling will warrant reversal only when the error probably caused the rendition of an improper judgment). Lita's very brief arguments under these issues are completely contingent on our finding error under its exclusion of evidence issues (1, 2, 3, and 4). Because we found no error in addressing those issues above, we likewise overrule these contingent issues. See id.
II. Fundamental Error
In issue five, Lita contends that the trial court's exclusion of Lita's exhibits and testimony constituted fundamental error that did not need to be preserved in the trial court. The largely discredited fundamental error doctrine still applies only in very limited circumstances, such as when the record on its face shows that the court lacked jurisdiction or when a public as opposed to a private interest has been directly and adversely affected as that interest has been declared in the statutes or constitution of Texas. See, e.g., Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982); Sklar v. Sklar, 598 S.W.3d 810, 826 n.9 (Tex. App.-Houston [14th Dist.] 2020, no pet.); Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 821 (Tex. App.- Houston [14th Dist.] 2005, no pet.).
Under this issue, Lita neither raises a challenge to the trial court's jurisdiction nor identifies any public interests that have been directly, adversely affected. Lita's complainants regarding unadmitted exhibits and testimony do not rise to the level of fundamental error. See Tamez, 206 S.W.3d at 577 (declining to classify trial court's refusal to permit party to present additional evidence as fundamental error); Sklar, 598 S.W.3d at 826 n.9 (holding unpreserved complaints regarding rebuttal testimony and closing argument did not rise to the level of fundamental error). Accordingly, we overrule Lita's fifth issue.
III. Jury Charge
In the sixth issue, Lita contends that the trial court erred in rejecting Lita's multiple proposed jury questions. A trial court must submit questions, instructions, and definitions to the jury as are necessary to enable the jury to render a verdict. Nezat v. Tucker Energy Servs., Inc., 437 S.W.3d 541, 545-6 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Tex.R.Civ.P. 278). The trial court enjoys considerable discretion in framing a jury charge and is given broad latitude to determine the propriety of explanatory instructions and definitions. H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). We review the trial court's charge submission under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). As stated above, a trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding principles. See Downer, 701 S.W.2d at 241-42.
By rule, trial courts are required to submit cases to the jury whenever feasible in broad-form questions. Tex.R.Civ.P. 277. This certainly holds true in condemnation cases as well. See State v. Petropoulos, 346 S.W.3d 525, 530-31 (Tex. 2011) (discussing charge requirements in eminent domain cases); Westgate, Ltd. v. State, 843 S.W.2d 448, 456-7 (Tex. 1992) (same). The trial court here submitted two broad form questions to the jury, generally in keeping with Rule 277, Petropoulos, and Westgate. Lita's proposed charge would have split the damages issues into nine separate questions.
Lita does not cite any place in the record-and we have not discovered any such place-where she submitted the proposed questions to the trial court, where the trial court ruled on the proposed questions, or where she objected to the charge that the trial court submitted to the jury. To the contrary, during the charge conference, when asked if he had any objections to the charge, Lita's counsel replied, "No. Your Honor." Lita failed to preserve its complaints under issue six for appellate review. See Tex. R. Civ. P. 272 (providing that, to preserve error for appeal, party must object to charge in writing or on the record before charge is read to jury), 273 (providing that parties may submit requests for questions, definitions, and instructions to be given to jury), 274 (providing that any complaint regarding the charge is waived if not raised in an objection); Tex.R.App.P. 33.1a (requiring a timely and sufficiently specific request, objection, or motion to preserve error); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) ("There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling."); see also King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 845 (Tex. 2014) (applying Payne). Accordingly, we overrule the sixth issue.
Having overruled all of Lita's issues, we affirm the trial court's judgment.