Speedy Stop Food v. Reid Road Mun. Utility, 14-07-00225-CV.

• Court: Court of Appeals of Texas
• Citation: 282 S.W.3d 652
• Docket Number: No. 14-07-00225-CV.,14-07-00225-CV.
• Parties: SPEEDY STOP FOOD STORES, LTD., Appellant, v. REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2, Appellee.
• Decision Date: 03 February 2009

282 S.W.3d 652

SPEEDY STOP FOOD STORES, LTD., Appellant, v. REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2, Appellee.

No. 14-07-00225-CV.

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

February 3, 2009.

Rehearing Overruled March 26, 2009.

Bill W. Russell, Victoria, for appellant.

C. Charles Dippel, for appellee.

Panel consists of Justices FROST, SEYMORE and GUZMAN.

MAJORITY OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from a summary judgment in a condemnation case. At the center of the controversy is Texas's longstanding rule that a property owner who is familiar with the market value of his property may testify regarding that market value, even if he is not qualified or designated as an expert witness (hereinafter "Property Owner Rule"). Today we must decide whether this rule, applied countless times to individual property owners, applies to corporate property owners. The Supreme Court of Texas has not directly spoken on the matter, and our sister courts of appeals are divided on this issue.

The trial court granted a no-evidence summary judgment after striking all of the compensation evidence offered by the corporate property owner in the condemnation action. One of the stricken affidavits was made by a representative of the corporate property owner under the Property Owner Rule. If the Property Owner Rule does not apply to corporate entities, then the trial court did not err in striking this affidavit. If the Property Owner Rule does apply, then the trial court erred in striking the affidavit. We conclude that the Property Owner Rule applies to all property owners, including corporate property owners. Because evidence in the stricken affidavit raise a genuine issue of material fact regarding compensation, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Speedy Stop Food Stores, Ltd., a Texas limited partnership ("Speedy Stop") owns a 2.0661 acre tract of land in Harris County, Texas ("Property"). Appellee Reid Road Municipal Utility District No. 2 (the "District") initiated a condemnation action in the trial court below for the purpose of acquiring a .0592 acre waterline easement over, through, under, and across the Property for the construction, operation, and maintenance of facilities for transportation and delivery of water.

The trial court appointed three special commissioners to assess condemnation damages. These commissioners convened a hearing, at which the District proffered an appraisal by David Ambrose, a state-certified appraiser. Ambrose opined that Speedy Stop's damages are $9,342. The Special Commissioners assessed damages in that amount in favor of Speedy Stop, and the District deposited a sum in that amount into the registry of the court below. Speedy Stop timely filed objections to the special commissioners' findings under the condemnation statute, triggering a de novo proceeding in the trial court. The trial court first granted a motion for partial summary judgment in favor of the District, after which the only remaining issue was the amount of compensation to be awarded to Speedy Stop.

The District then filed a second motion for summary judgment in which it asserted a single no-evidence ground, namely that there is no evidence of the amount of just compensation to be paid to Speedy Stop for the taking of the easement. In its motion, the District sought judgment that Speedy Stop be awarded one dollar in nominal damages for the condemnation of the easement. In response, Speedy Stop offered the affidavit of Carlton LaBeff, the vice president of the general partner of Speedy Stop. LaBeff made the affidavit on behalf of the owner of the property, Speedy Stop. LaBeff testified that, for several years, he has been in charge of all real estate acquisitions for Speedy Stop, which owns and operates more than a hundred convenience stores in Texas. According to his affidavit, LaBeff is the person who has responsibility for dealing with easement issues at all of the Speedy Stop stores, and he was involved with the acquisition of the convenience store on the property that is the subject of this condemnation action. LaBeff's affidavit shows that he is familiar with the market value of the property in question. LaBeff testified that there is a $62,000 difference in the fair market value of the Property immediately before and immediately after the condemnation of the easement. LaBeff does not have a real-estate broker's license, and he is not a licensed real-estate appraiser. Speedy Stop did not designate LaBeff as an expert witness.

Speedy Stop also attached a transcript of David Ambrose's appraisal and testimony from the special commissioners' hearing. In this testimony, Ambrose opined that Speedy Stop's total damages are $9,342. Speedy Stop stated that it attached this testimony as an admission against interest.

In its summary-judgment reply, the District objected to LaBeff's affidavit and moved to exclude it on the following grounds:

• The time for designating experts has expired, and Speedy Stop did not designate LaBeff as an expert witness.

• LaBeff is not qualified to testify as an expert because he is not a licensed real-estate appraiser.

• LaBeff's methodology does not satisfy the reliability requirement for expert testimony.

The District also objected to the admission of Ambrose's testimony and appraisal.

The record reflects that the trial court focused on the issue of whether the Property Owner Rule applies to corporate entities. The District argued it does not, and Speedy Stop argued it does. The trial court sustained the District's objections to LaBeff's affidavit and to Ambrose's testimony and appraisal. The trial court granted the District's motion to exclude these items from the summary-judgment evidence. With no evidence before it as to how much compensation the District must pay Speedy Stop, the trial court granted the District's no-evidence motion for summary judgment. The trial court rendered judgment that Speedy Stop receive one dollar in compensation for the condemnation of the easement, and the trial court ordered that the trial court clerk distribute the remaining $9,341 in the registry of the court to the District. In this appeal, Speedy Stop challenges the trial court's summary judgment.

ISSUES PRESENTED

Speedy Stop presents the following issues:

(1) Did the trial court err in granting [the District's] no evidence motion for summary judgment?

(2) Was [Speedy Stop's] summary judgment evidence, the affidavit of Carlton LaBeff, as the owner and as a lay witness, some evidence of the value of the property rights being condemned?

(3) Was [the District's] appraisal testimony by Mr. David Ambrose at the condemnation hearing or Mr. Ambrose's appraisal some evidence that the property being condemned had value?

Speedy Stop argues in its appellate brief that the Property Owner Rule applies to corporate entities and that LaBeff's affidavit, on behalf of Speedy Stop, raises a fact issue as to the amount of compensation the District must pay Speedy Stop. LaBeff's affidavit shows his familiarity with the market value of the Property and states that the condemnation of the easement would decrease the market value of the Property by $62,000.¹ See Porras v. Craig, 675 S.W.2d 503, 504-05 (Tex.1984) (stating that property owners can testify to the market value of their property if they state that they are familiar with it, even though they are not testifying as expert witnesses). Therefore, if, as the District asserts, the Property Owner Rule does not apply to corporate entities such as Speedy Stop, the trial court did not err in excluding LaBeff's testimony. But if, as Speedy Stop asserts, the Property Owner Rule does apply to corporate entities such as Speedy Stop, then the trial court abused its discretion by sustaining the District's objections to LaBeff's affidavit and suppressing his testimony.

In its appellate brief, Speedy Stop does not explicitly challenge the trial court's evidentiary ruling striking LaBeff's affidavit. Nonetheless, the Texas Supreme Court has emphasized that we must construe issues presented liberally to obtain a just, fair, and equitable adjudication of the rights of the litigants. Perry v. Cohen, 272 S.W.3d 585, 588 (Tex., 2008). In light of Speedy Stop's argument attacking the basis for the trial court's suppression of LaBeff's affidavit, we construe Speedy Stop's brief as assigning error to this ruling of the trial court. See id. (holding that court of appeals erred by concluding appellant failed to assign error as to special-exceptions order because, under a reasonable yet liberal construction of appellant's brief, appellant challenged this order given that appellant presented argument challenging the basis of this order, though appellant did not expressly challenge the order). Accordingly, we address the trial court's evidentiary ruling striking LaBeff's affidavit.

STANDARDS OF REVIEW

We review a trial courts's evidentiary rulings for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005) (per curiam). The trial court abuses its discretion if it acts without reference to guiding rules or principles, or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence grounds. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206-08 (Tex.2002). A no-evidence summary judgment must be granted if the party opposing the motion does not respond with summary-judgment evidence that raises a genuine issue of material fact. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light...