Morale v. State

• Decision Date: 22 June 2018
• Docket Number: No. 17–0049,17–0049
• Citation: 557 S.W.3d 569
• Parties: Stephen MORALE d/b/a Action Collision Repair and Kimberly Morale, Petitioners, v. The STATE of Texas, Respondent
• Court: Texas Supreme Court

557 S.W.3d 569

Stephen MORALE d/b/a Action Collision Repair and Kimberly Morale, Petitioners,

v.The STATE of Texas, Respondent

No. 17–0049

Supreme Court of Texas.

OPINION DELIVERED: June 22, 2018

Rehearing Denied October 19, 2018

Don C. Griffin Jr., Catherine ‘Cathy’ B. Smith, David G. Wall, H. Dixon Montague, Zachary J. Howe, Vinson & Elkins L.L.P., Houston TX, for Petitioners.

Brantley D. Starr, Deputy First Assistant Attorney General, Charles E. Roy, Jeffrey C. Mateer, First Assistant Attorney General, John Seth Johnson, Amy Kovar Owens, Clint A. Harbour, Daniel Caldwell, James E. Davis, Randall K. Hill, W. Kenneth Paxton Jr., Andrew Svor, Office of the Attorney General, Austin TX, for Respondent.

PER CURIAM

The issues in this appeal of a condemnation judgment are whether the trial court erroneously admitted and excluded various evidence at trial, thereby probably resulting in rendition of an improper judgment. We hold that the trial court's evidentiary holdings were not an abuse of discretion. Because the court of appeals held otherwise, we reverse that court's judgment and reinstate the judgment of the trial court.

The State of Texas planned to condemn a portion of a 33,000 square-foot property owned by Stephen and Kimberly Morale in the Town of Little Elm, Texas (the Town), for purposes of improving FM 720 in Denton County. The property was improved with an 8,831 square-foot building used for the Morales' vehicle collision repair business. Specifically, the State planned to take a 3,200 square-foot strip of land, which included a metal canopy used by the business that would have to be demolished as part of the taking.

The State's appraiser, Jennifer Ayers, initially determined that after the taking and the implementation of a "cure plan" involving removal of certain parts of the building, the Morales' property could still be used as a general auto repair shop but not as a collision repair shop. Based on Ayers's determination that the use of the property would change as a result of the taking, the State administratively classified the Morales as "displaced" in May 2012. See 43 TEX. ADMIN. CODE § 21.116 ("When a person is required to relocate as a result of the acquisition of right-of-way for a highway project, the [Texas Department of Transportation] will pay the reasonable expenses of relocating the displacee and his or her business and personal property ...."). According to department manuals, the classification denotes that the partial taking will render the condemnee "unable to conduct business in the same or similar manner as prior to the acquisition."

The State's land planner, Ronan O'Connor, subsequently developed a second cure plan for reconfiguring the property that would enable the Morales to continue operating their existing business on the site. O'Connor's plan relocated the metal canopy to another location on the property, added a door to the office building, and made adjustments to the parking curbs. In February 2013, Ayers revised her appraisal to incorporate O'Connor's cure plan, determining that the Morales' property could still be used as a collision repair shop. In May 2013, the special commissioners awarded the Morales $49,804 in damages for the taking. The Morales objected to the award and demanded a jury trial. The State formally revoked the Morales' displacee status on November 21, 2013.

The Morales hired their own appraiser, David Bolton, and land planner, Bill Carson. Bolton had developed an initial appraisal in May 2013 based on the assumption that the entire site would be demolished (following from the assumption of displacement). Carson developed two cure plans for reconfiguring the property to continue its use as a collision repair shop. Bolton used one of these plans to make an alternative appraisal based on nondisplacement.

The Morales' property is zoned light commercial, and a collision repair shop is not an authorized use in that zoning classification. The property also had other nonconforming uses, such as unpaved parking. However, these uses all existed before the current zoning restrictions were in place, and, as they were continuous, the uses would be grandfathered-in and considered legally nonconforming. Once a nonconforming use ceases, the grandfathered status is lost. Thus, when Carson developed his cure plans allowing for continued use as a collision repair shop, he had to alter other previously grandfathered, nonconforming uses of the property (e.g., the use of the parking lot), which in turn required additional modifications to bring the new use "up to conformity" with applicable Town zoning ordinances.

Before trial, the State moved to exclude any evidence relating to the Morales' revoked displacee status. The trial court denied the motion. The State presented evidence at trial, through Ayers's testimony of her appraisal based on implementation of the O'Connor cure plan, that the compensation owed the Morales was $122,953. David Bolton, the Morales' appraiser, testified to two values. First, he testified to what he called his "displaced valuation" of $1,262,947, constituting the loss in fair market value of the property if all improvements were razed. He alternatively testified that if one of Carson's cure plans were implemented, such that the Morales could still use the property to operate a collision repair shop and thus would not be displaced, the Morales would be entitled to $1,064,335. Kimberly Morale testified that the Morales were requesting an award of $1,262,000 because, based on her knowledge of the property's highest and best use, they were being displaced.

The parties also disputed the admissibility of evidence regarding the Town's zoning regulations and the effect they would have on the property after condemnation. At trial, the State offered the testimony of city engineer Jason Laumer and city attorney Robert Brown. By referring to the Town's previous grants of zoning variances on unrelated properties, their testimony suggested that the Morales would also be given a zoning variance, allowing them to continue the collision repair business in a legally nonconforming way. Brown and Laumer conceded, however, that they could not testify as to what the Little Elm Town Council would or would not ultimately do. Dusty McAfee, who heads the Town's planning department, testified as a witness for the Morales. Like Brown and Laumer, McAfee could not speak to what the Town would do. But his testimony suggested that a prospective buyer would not believe it was reasonably probable that the Town would grant a zoning variance to make the O'Connor cure plan viable—or at least the buyer would not believe it was as probable as Brown and Laumer painted it. This was a key disagreement because the Morales' ability to continue using the property as a collision repair shop under the O'Connor cure plan (which was the basis for revoking the displacement classification) depended on obtaining a zoning variance.

The trial court admitted the testimony of Bolton and Kimberly Morale, including their discussion of displacement. It excluded Brown's and Laumer's testimony as irrelevant. The jury was asked to determine the difference between the market value of the whole property before the taking and the market value of the remaining property after the taking, considering the effects of the condemnation on the remainder. The jury awarded $1,064,335, Bolton's compensation figure associated with the Morales not being displaced, and the trial court essentially rendered judgment on the verdict.¹ The court of appeals reversed and remanded for a new trial. 553 S.W.3d 489, 509, 2016 WL 7473933 (Tex. App.—Fort Worth 2016) (mem. op.). It held that the admitted evidence of displacement was both irrelevant to the only issue at trial—"the compensation owed to the Morales for the part taken and for any damages to the Morales' remainder property"—and harmful. Id. at 496. The court also held Bolton's displacement appraisal was "based on a land use that was speculative and unsubstantiated," and that "the displacement market value testimony was irrelevant and therefore inadmissible." Id. at 504. Finally, the court of appeals held that the trial court erred in excluding Brown's and Laumer's testimony. Id. at 494. The Morales petitioned for our review.

Whether to admit or exclude evidence is within the trial court's sound discretion. See Owens–Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). Irrelevant evidence is not admissible. TEX. R. EVID. 402. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." TEX. R. EVID. 401.

The only issue the jury was asked to decide in this case was the amount of just compensation due to the Morales for the partial taking, calculated as the difference between the market value of the entire property before the taking and the market value of the remainder property after the taking, considering the effects of the condemnation. State v. Petropoulos , 346 S.W.3d 525, 530 (Tex. 2011). "The factfinder may consider the highest and best use of the condemned land," which is presumed to be "the existing use of the land." Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC , 386 S.W.3d 256, 261 (Tex. 2012). A disagreement between experts as to the value of land after condemnation is part and parcel of trial. See, e.g. , State v. Dawmar Partners, Ltd. , 267 S.W.3d 875, 877 (Tex. 2008) ("[T]here was considerable conflicting evidence regarding the highest and best use of the property before and after the taking."); State v. Windham , 837 S.W.2d 73, 77 (Tex. 1992).

Here, the collision repair shop was the existing use of the land at the time of the taking and thus was also the presumed highest and best use. The State's initial displacement classification, though later revoked, reflected the risk that the taking would cause the loss of that use. The...