Expert report on condemnation value was admissible, even through it was several months old says Fort Worth Court of Appeals

Ashwin J. Babaria and Bharti A. Babaria v. City of Southlake, Texas 02-14-00068-CV (Tex. App. – Fort Worth, January 14, 2016).

This is a condemnation case where the Fort Worth Court of Appeals affirmed the condemnation award issued by the trial court. This is a long opinion, so I apologize for the lengthy summary. Lawyers who deal with condemnation will find it helpful regarding what information they need to properly compile which will be upheld for condemnation proceedings. However, this case will be of more interested to litigators since it has to deal with admission of evidence.

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. The special commissioner’s court awarded $97,000. The Babarias  objected noting it was not sufficient. They appealed to district court. After a jury trial, the jury awarded $7,000 less than the Commissioners, bringing the total to $90,000. The Babarias again objected and brought this appeal, primarily complaining of the admission of evidence by the City.

The Babarias’ appraiser, Hawkins, testified the property taken was worth $167,000.  Mainly, his testimony centered around the part taken not being its own economic unit, but that given City regulations on lot size, the Babarias would lose the ability to plat off and sell a separate part of their property to use as a residential home. Southlake called city engineer Cheryl Taylor and appraisal expert Charles Stearman.  The Babarias’ attorney objected to Taylor asserting she was not an expert. The court sustained in part and overruled in part, essentially holding Taylor could testify that a portion of the property was previously dedicated, but not whether the subdivision ordinance would require a future platting. The Babarias then objected to Stearman  asserting he never supplemented his report, which was out of date in reference to the time of taking (essentially not taking into account alleged market changes). After a chiding of the Babarias’ attorney for interrupting the court, the objection to testimony was overruled.

After analyzing the discovery provided to the Babarias, the court held the date of Stearman’s report did not make it inadmissible. As a general rule, sales occurring within five years before the taking are not too remote to be admissible.  Further, Stearman’s testimony that the report is reliable only as to its issue date, was intended as a method to prevent unauthorized use of the report for some other purpose. It was not an assertion that the market was in flux.  “This is no different from any other expert’s testimony at trial based upon a report completed before trial.”  After a detailed analysis, the court held his methodology was also proper. After analyzing Taylor’s testimony, the court held it was not error for Taylor to testify as a fact witness regarding the Babarias’ dedication of portions of the land. The “testimony on that point was not an opinion about how the ordinance might hypothetically apply in the future, it was an assertion of fact about something that had already happened.”  As a result, the testimony was permissible. The Babarias’ issues are overruled and the jury finding is affirmed.

If you would like to read this opinion click here. Panel: Justice Dauphinot, Justice Gardner, and Justice Gabriel. Memorandum Opinion by Justice Dauphinot.  The attorney for the City is listed as Tim G. Sralla.  The attorney for the Plaintiffs is listed as E. Lawrence Vincent Jr.