Barbaria v. City of Southlake, No. 02-14-00068-CV, 2016 Tex. App. LEXIS 454 (Tex. App.—Fort Worth Jan. 14, 2016, pet. filed)
The Barbarias, residential property owners in the City of Southlake, appealed a judgment in a condemnation case. The City of Southlake condemned a portion of the Barbarias’ property for the widening of a road and a drainage easement. The special commissioners assessed damages at $97,000. After a jury trial, the jury found the fair market value to be $90,000 for the taking with no damages to the remainder of the property. On appeal, the Barbarias asserted that the trial court erred in admitting the testimony of the City’s appraisal expert witness and a City engineer.
The Barbarias argued that the trial court should have excluded the testimony of the City’s expert witness for the following reasons: (1) the City had not made a timely disclosure of the expert’s opinion under Texas Rule of Civil Procedure 193.6; (2) the expert’s testimony was unreliable because his report concluded to a value as of a date other than the date of the taking; and (3) the expert used an improper methodology when valuing the condemned land on the Barbarias’ improved property by comparing sales of unimproved property. The trial court overruled all three issues raised by the Barbarias. On its first issue, the Barbarias claimed that the expert’s testimony on the value of the property as of the date of taking was not property and timely disclosed because the expert’s produced report included a valuation of the property as of three months prior to the date of taking. Relying on the expert’s testimony at trial that the opinions in the appraisal were equally applicable to the date of valuation in the report and to the date of taking and that there were no significant changes in the market during that three month period, the court of appeals held that there were no developments to render the City’s disclosures misleading, incorrect, or in need of supplementation. Similarly, the court of appeals rejected the Barbarias’ second argument that the expert’s testimony was unreliable because the valuation date in his report was three months prior to the date of taking, relying again on the testimony of the City’s expert. Although the Barbarias pointed to language in the expert’s report that stated that use of the appraisal for a date other than the valuation date rendered the report unreliable, the court of appeals concluded this language was intended to avoid unauthorized use of the report and was not a statement about changes in the market around the time of the report’s valuation date. Finally, the court of appeals rejected the Barbarias’ assertions that the expert utilized an improper methodology by using sales of vacant land for comparable sales. Because the City’s expert concluded that there was no damage to the improved remainder property, the expert could compare the taken vacant land to vacant, as opposed to improved, land sales to determine the value of the condemned land.
Having found that the trial court properly admitted the testimony of the City’s expert, the court of appeals turned to the question of the admissibility of the testimony of the City’s engineer. The Barbarias claimed that the trial court erred in admitting the testimony because the City had not properly disclosed the City engineer as an expert witness. However, the court of appeals found that the City engineer’s testimony, which involved the impact of the City’s subdivision ordinance on the Barbarias’ property in the past, was fact witness testimony rather than expert opinion testimony. Accordingly, the court of appeals overruled this issue and affirmed the trial court’s judgment.