Babaria v. City of Southlake
| Decision Date | 14 January 2016 |
| Docket Number | NO. 02-14-00068-CV,02-14-00068-CV |
| Parties | ASHWIN J. BABARIA AND BHARTI APPELLANTS A. BABARIA v. CITY OF SOUTHLAKE, TEXAS APPELLEE |
| Court | Texas Court of Appeals |
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
This is an appeal from a judgment in a condemnation case. The City of Southlake instituted an eminent domain action to condemn property owned by Ashwin and Bharti A. Babaria. The Babarias objected to the $97,000 award of the special commissioners, and Southlake deposited that amount into the registryof the court. The Babarias withdrew the money, and the issue of compensation was tried to the jury. Based on the jury's verdict, the trial court signed a judgment awarding Southlake $7,000, the difference between the amount the Babarias had withdrawn from the court's registry and the amount of compensation awarded to the Babarias by the jury.
In five issues, the Babarias challenge the trial court's admission of the testimony of Southlake engineer Cheryl Taylor and of appraisal expert Charles Stearman and the trial court's denial of their motion to disregard jury findings and for judgment notwithstanding the verdict. Because we hold that Taylor's testimony was admissible, that Stearman's testimony was also admissible, and that the trial court did not err by overruling the Babarias' postjudgment motions, we affirm the trial court's judgment.
Southlake planned to convert the road that runs in front of the Babarias' property from a two-lane road into a four-lane divided road with underground storm water drainage, a landscaped median, and extended sanitary sewer service. To do so, Southlake planned to condemn 0.185 acre of the Babarias' approximately eight-acre property (roughly thirty feet on the front of the property) to widen the road and another 0.067 acre part (approximately ten feet along the front of the property) for a drainage easement.
In the eminent domain proceeding, the special commissioners assessed damages of $97,000 the right-of-way, the permanent drainage easement, and atemporary construction easement. The Babarias objected to the special commissioners' award, and Southlake deposited the amount of the award into the registry of the trial court on January 19, 2012. On the Babarias' motion, the trial court allowed them to withdraw the money before trial. The parties then tried the issue of damages to a jury.
At trial, Robert Hawkins, an appraiser testifying for the Babarias, asserted that the value for the property taken plus the damages to the Babarias' remainder property totaled $162,500.00. Hawkins testified that the property being condemned did not constitute its own economic unit, and thus his valuation testimony for the part taken was based on a 44,029 square-foot (just over one-acre) parcel of undeveloped land at the front of the Babarias' property. He testified that the parcel could be sold for a single-family residential lot, which Hawkins concluded was the highest and best use of the property. Hawkins opined that the parcel had a value of $7.00 per square foot based on a comparable sales analysis that compared the undeveloped parcel he had used as an economic unit to other unimproved properties. Based on this valuation, he stated that the value of the taken property was $87,500, plus $15,000 for fencing and gates on the property.
In testifying about damages to the remainder property, Hawkins stated that Southlake has a minimum one-acre lot size requirement for residential development and that prior to the taking, the Babarias' property included a full unencumbered acre that could be sold as a single family residential lot. After thetaking, however, the Babarias would only have a full acre to sell if they included a thirty-foot strip on the property that was already burdened with a utility easement and power line. He testified that including this thirty-foot strip and taking into account Southlake's setback requirements would limit the size home that could be built on the lot and decrease the amount a buyer would pay for it. Hawkins concluded that the remainder damages were $60,000.
Southlake called city engineer Cheryl Taylor and appraisal expert Charles Stearman to testify. When Southlake's attorney asked Taylor if she was familiar with the application of Southlake's subdivision ordinance to proposed replats2 of property, the Babarias' attorney objected, Their attorney objected to Taylor "talking about the ordinance or how it applies to this property because that is an interpretation of law[,] . . . and that is an expert opinion." She further objected that Taylor had not been designated as an expert witness.
After hearing an offer of proof outside the jury's presence, the trial court sustained the objection in part and overruled the objection in part. The court ruled that Taylor could testify that a portion of the property had previously been dedicated under a requirement of the subdivision ordinance. The court further ruled that Taylor could not testify about whether the subdivision ordinance wouldrequire a platting of the economic unit proposed by Hawkins and, if so, whether the subdivision ordinance would require a dedication of a portion of the Babarias' property in that platting.
Stearman's report—on which his testimony was based—was dated October 7, 2011, not the January 19, 2012 date of taking. When Stearman began to testify about his valuation opinion, the Babarias objected to his testimony on the ground that his report was not evidence of value as of the January 19, 2012 date of taking,3 he had never supplemented his report, and Southlake had never supplemented its discovery responses to support a valuation as of the date of taking. Thus, they argued, his testimony about market value should be excluded. The trial court allowed Southlake to question Stearman about whether there was any need for him to do further analysis (he answered no) and whether his October 2011 opinion was equally applicable to the January 2012 date of taking (he answered yes).
The Babarias' attorney objected that Stearman had done no analysis from which he could draw the conclusion that the market had not changed between October 2011 and January 2012. She characterized Stearman's testimony as "saying the date of condemnation doesn't matter."
After some discussion of case law outside the presence of the jury, when the Babarias' attorney interrupted the trial court, the court ruled, The Babarias' attorney asked whether she should make the rest of her objections before the jury was brought back in, and the trial court responded,
The Babarias' attorney apologized for interrupting the trial court and then objected that Stearman had not used a valid appraisal methodology because he had used sales of unimproved properties to determine a value for the part taken, even though he used the Babarias' entire property as the basis for comparison and the Babarias' property is improved. The trial court overruled the objections.
Stearman then testified about his valuation opinion. Because the property taken was too small to constitute its own economic unit, Stearman used the Babarias' entire property as an economic unit. He then found comparable sales of vacant land in the area to come up with a per-square-foot value for the vacant land taken. Stearman testified that his opinion of the value of all the land rights to be acquired plus the value of any site improvements located on the land acquired was $75,740, plus $1,830 for a temporary construction easement, for a total of $77,370.
The jury rendered a verdict finding $90,000 as the fair market value of the part taken and finding no damages to the remainder property. The Babarias filed a motion to disregard the jury's verdict and for judgment notwithstanding the verdict (JNOV), requesting that the trial court render a judgment in their favor for $162,500. The trial court denied the motion and signed a judgment on the verdict. Because the Babarias had already withdrawn the $97,000 deposited in the court's registry, the trial court ordered that Southlake recover $7,000 from the Babarias.
The Babarias filed a motion for new trial and a notice of appeal. The trial court subsequently rendered an amended final judgment ( that property lienholders had been nonsuited) to address concerns raised by this court about whether the prior judgment disposed of all parties. The motion for new trial was overruled by operation of law, and the Babarias now appeal.
2.1. Civil procedure rule 193.6 did not require the exclusion of Stearman's testimony
In their first issue, the Babarias assert that the trial court erred by not excluding Stearman's opinion testimony under civil procedure rule 193.6.4
Civil procedure rule 193.6 requires the exclusion of evidence or information that was not timely disclosed in an initial, amended, or supplemental discoveryresponse.5 Exclusion is not required, however, if the trial court finds that there was good cause for the failure to disclose or that the failure to disclose will not unfairly surprise or unfairly prejudice the other parties.6 The Babarias argue that Southlake never disclosed Stearman's opinion of market value as of January 19, 2012 and did not show either good cause for the failure to disclose or that they would not be prejudiced by the testimony.
The basis for the Babarias' argument under this issue is a statement in Stearman's report that the value opinion within it was reliable only as of October 7, 2011...
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