Harris Cnty. Flood Control Dist. v. Taub

• Decision Date: 25 August 2016
• Docket Number: NO. 14-15-00077-CV,14-15-00077-CV
• Citation: 502 S.W.3d 320
• Parties: Harris County Flood Control District, Appellant v. H. Ben Taub, Kitchco Realty, Ltd., Metco Realty, Ltd., and Texan Land and Cattle II, Ltd, Appellees
• Court: Texas Court of Appeals

502 S.W.3d 320

Harris County Flood Control District, Appellant

v.H. Ben Taub, Kitchco Realty, Ltd., Metco Realty, Ltd., and Texan Land and Cattle II, Ltd, Appellees

NO. 14-15-00077-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 25, 2016

H. Dixon Montague, Houston, TX, for Appellees

Kevin H. Dubose, Houston, TX, for Appellant

Panel consists of Justices Christopher, McCally, and Busby.

OPINION

Tracy Christopher, Justice

In this condemnation case, Harris County Flood Control District ("the District") appeals the judgment rendered on the jury's finding valuing the subject property at $11,636,238.00 on the date of the taking. According to the District, the trial court abused its discretion in admitting comparable-sales evidence of five other property transactions and in rendering judgment on the jury's verdict, which tracked expert testimony relying on some or all of those transactions. We conclude that the trial court abused its discretion in admitting evidence of an option contract and of a sale to a school district having the power to condemn property. Because other comparable-sales evidence supported the expert testimony and the verdict, we conclude that these errors were harmless, and we affirm the trial court's judgment.

I. BACKGROUND

H. Ben Taub and three entities associated with the Taub family owned a heavily wooded tract of about 99 acres in Deer Park, Harris County, Texas.¹ A drainage easement divided the property into a northern section of about 42 acres and a southern section of about 56 acres.² The District condemned the 42-acre tract, and the special commissioners determined that the property's value was $9 million. The District paid this amount into the registry of the court on July 28, 2010, thus establishing that as the date of the taking. The District's appeal to the county civil court at law was by trial de novo.

The District contends that the trial court erred in admitting comparable-sales evidence of five real-estate transactions. Taub was a party to three of those transactions, and the remaining transactions were sales of two properties, each of which served as the site for a hotel. We describe the transactions below.

A. The Frantz Contract

In September 2007, Taub executed an agreement to sell both his 42-acre lot and his 56-acre lot to John E. Frantz.³ They agreed that Frantz would pay $3.00 per square foot for the property conveyed.⁴ They also agreed that Frantz would have until the end of the year to investigate the property, and that if he terminated the contract in writing before the end of that period, then his $50,000.00 earnest-money payment would be refunded. The contract stated that the sale was to close on January 30, 2008.

In early December 2007, Frantz went to Deer Park's office of public works to investigate the utilities available to the site. After he left, Deer Park's city manager called and invited him to a meeting on December 11, 2007. Deer Park's mayor, its city manager, two or three people from the District, Frantz, and Frantz's son attended. The group told the Frantzes that the District wanted to acquire part of Taub's property as a site for a detention pond. There is conflicting evidence about whether the District told Frantz at that time that it wanted the 42-acre section.

On December 17, 2007, Frantz and Taub amended their contract; we refer to the first amended contract as the "Frantz contract." In the amendment, Frantz and Taub agreed that Frantz would pay $3.00 per square foot for the 56-acre tract and $6.00 per square foot for the 42-acre tract. They also pushed back the property-investigation deadline and the closing date by two months. The contract was amended seven more times to extend deadlines while the parties waited to see whether the District would condemn the 42-acre section of the property, but the price remained the same.

B. The Kinder Morgan Contract

During this time, Taub executed an option agreement with Kinder Morgan Texas Pipeline, LLC ("the Kinder Morgan contract"). Kinder Morgan owned the property that separated the 42-acre tract from East Boulevard in Deer Park. Taub sought a 60-foot-wide strip of land to provide access from East Boulevard to the 42-acre tract. Under the terms of that contract, Taub paid $53,280.00 for a one-year option to buy the strip of land for $532,800.00—the equivalent of $6.44 per square foot—and the option was renewable for one year at the same price. Kinder Morgan agreed that if Taub exercised the option, then all of the money he paid for the option would be applied to the sale. The original contract was executed in December 2008, and although Taub renewed the option, he did not ultimately buy the land.

C. The School Sale

Also during this time, Taub negotiated to sell the 56-acre section of the property to Deer Park Independent School District for $4.50 per square foot ("the School sale"). To allow that sale to go through, Frantz and Taub agreed to terminate their sales contract. The School sale agreement was executed in March 2010 and closed the same month.

D. The Hotel Sales

The jury also heard evidence about two properties sold for development as hotels. The site of the future Candlewood Suites hotel was approximately 2.2 acres and sold for $7.42 per square foot. The site of the La Quinta hotel was about the same size, and was sold for $5.00 per square foot.

E. The Expert Testimony

Taub retained three experts to testify regarding the property's market value, but called only two of them—Mark Sikes and Wayne Baer—to testify at trial. Both experts used the comparable-sales method, with Sikes relying on ten and Baer relying on eight transactions. Sikes and Baer each relied on the Frantz contract, the Kinder Morgan contract, the School sale, and the Candlewood Suites sale; neither of them relied on the La Quinta sale as a comparable sale. Sikes and Baer instead described the La Quinta sale as a sale on which the School's consultant relied in determining the purchase price for the 56 acres that were the subject of the School sale.

Sikes opined that, after determining whether each of the properties he used as a comparable sale was superior or inferior to the subject property and adjusting the sales accordingly, the subject property's market value on the date of the taking was $6.25 per square foot, for a total of $11,636,238.00. Baer opined that the subject property's market value was $6.00 per square foot, for a total of $11,170,000.00. The District's expert Alan Dominy used nine comparable sales ranging from $1.34 to $3.67 per square foot, and opined that the market value of the 42-acre tract was $2,580,506.00.

Although Taub did not call his third expert Clinton Bogart as a witness at trial, the District did. The District elicited Bogart's testimony that he used the La Quinta sale as a comparable sale when calculating the value of the 42-acre tract, but Bogart did not testify to his opinion of the subject property's value.

F. The Verdict

The trial court instructed the jury on the meanings of "market value" and on the project-influence rule. In answer to the only question asked, the jury found that the property's market value on the date of the taking was $11,636,238.00, that is, the amount to which Sikes testified. The trial court denied the District's motion for new trial and rendered judgment on the jury's verdict.

On appeal, the District contends that the trial court reversibly erred in admitting as comparable-sales evidence Sikes's and Baer's testimony and exhibits concerning the Frantz contract, the Kinder Morgan contract, the School sale, and the sales of the sites of the Candlewood Suites and La Quinta hotels. In its appellate brief, the District addresses Sikes's testimony and evidence, but states that its arguments about Sikes apply equally to Baer. Our discussion of the District's evidentiary complaints similarly applies to both Sikes's and Baer's testimony and to evidence introduced through either of them.

II. WAIVER

Before reaching the merits of the District's arguments, we must address Taub's contention that the District has waived its complaints about the admission of Sikes and Baer's evidence regarding the Frantz contract, the School sale, the Candlewood Suites sale, and the La Quinta sale.

A. Waiver by Introducing the Same or Similar Evidence at Trial

According to Taub, the District waived its complaints about Sikes and Baer's testimony and evidence about the Frantz contract, the School sale, the Candlewood Suites sale, and the La Quinta sale because the District introduced the same comparable-sales evidence through Clinton Bogart. On appeal, a party may not complain that the opposing side's evidence was improperly admitted if the party introduced the same or similar evidence. Sw. Elec. Power Co. v. Burlington N. R.R. Co. , 966 S.W.2d 467, 473 (Tex.1998). But, if the opposing side refers to the contested evidence first, then the opposing side has "opened the door" to the evidence, and the party may "defend itself by explaining, rebutting, or demonstrating the untruthfulness" of the evidence without waiving its objection. Scurlock Oil Co. v. Smithwick , 724 S.W.2d 1, 4 (Tex.1986) (op. on reh'g); see also Fleming v. Kinney ex rel. Shelton , 395 S.W.3d 917, 932 (Tex.App.–Houston [14th Dist.] 2013, pet. denied) ("Fleming was entitled to counter Hardwick's testimony after it had been admitted over his objection ...; he was not required to give up at trial in order to preserve his complaint for appeal.").

Because Taub already had introduced Sikes's and Baer's comparable-sales evidence of the Frantz contract, the School sale, and the sale of the Candlewood Suites site, the District did not waive its complaints about the admission of that evidence by eliciting the same evidence from Bogart in an attempt to discredit the testimony of Taub's witnesses. The District elicited Bogart's testimony that the people involved in each of these transactions included Taub, the School's consultant Bobby Grisham, or both. The...