Stephen Morale D/B/A Action Collision Repair and Kimberly Morale v. State
Stephen Morale D/B/A Action Collision Repair and Kimberly Morale v. State
Opinion
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.
*572 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 *573 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.
Whether to admit or exclude evidence is within the trial court's sound discretion.
See
Owens-Corning Fiberglas Corp. v. Malone
,
The only issue the jury was asked to decide in this case was the
*574
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
,
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 court of appeals held that "the fact that the Morales were considered displaced ... does not make it more probable that the State at one time believed that the taking itself caused a change in the property's use" because the classification "was based on a combination of the effect of the taking and Ayers's proposed cure plan."
The court of appeals further faulted the Morales for presenting the displacement evidence in a manner "that pointedly suggested that the State's revocation of displacement status was suspicious" and "to suggest that the State's valuation testimony and evidence was false."
The court of appeals next held that Bolton's $1.2 million displacement valuation testimony was speculative and therefore inadmissible. We have held that expert testimony in condemnation cases is
*575
inadmissible if it relates to "remote, speculative, and conjectural uses" of the property that "are not reflected in the present market value of the property."
State v. Schmidt
,
In
Schmidt
, the "flaw" in the landowners' damages theory was that it did not assume a willing buyer; rather, it assumed "a buyer constrained to buy or abandon his plans for the use of his other property."
Unlike that testimony, Bolton's assumption that the Morales could not continue the property's existing use is grounded in evidence such as Kimberly Morale's testimony and the initial displacement classification. Building off his assumption of displacement (due to required cessation of the existing use), Bolton assumed the improvements no longer fulfilled their function as an automobile repair facility and could not be utilized after the taking, such that the improvements would need to be razed. Bolton assumed a willing buyer of that property,
see
Schmidt
,
The excluded
Little Elm Plaza
testimony (on which the court of appeals relied) and Bolton's testimony are similar in the sense that both experts opine about the value of land with its improvements completely razed. But they are distinguishable in important respects. Unlike
Little Elm Plaza
, there is a legitimate question as to whether complete razing of the improvements could be avoided. For example, Ayers "did not suggest tearing down all of the improvements," but she did suggest "tearing down
part
of their building."
Finally, we disagree with the court of appeals' conclusion that the trial court erroneously excluded Brown's and Laumer's testimony about the Town's previous zoning-related actions. We hold the trial court did not abuse its discretion by excluding this testimony as irrelevant because it did not address the Morales' specific property.
In
Little Elm Plaza
, the court of appeals held that testimony that demolition would be required was inadmissibly speculative because it suggested demolition was certain and ignored the town's stated intention to accommodate the nonconforming property.
See
Even if Brown's and Laumer's testimony were admissible, its exclusion was not harmful. Erroneous exclusion of evidence is reversible only if it probably resulted in an improper judgment.
See
TEX. R. APP. P. 44.1(a)(1). We have explained that "exclusion is likely harmless if the evidence was cumulative, or if the rest of the evidence was so one-sided that the error likely made no difference."
Caffe Ribs, Inc. v. State
,
In sum, we hold the trial court did not abuse its discretion in admitting evidence about the Morales' alleged displacement, admitting Bolton's displacement valuation testimony, and excluding Brown's and Laumer's testimony. We reverse the court of appeals' judgment and reinstate the trial court's judgment.
An unexplained $20 discrepancy between the jury finding ($1,064,335) and the trial court's judgment ($1,064,355) has not been challenged on appeal.
Reference
- Full Case Name
- Stephen MORALE D/B/A Action Collision Repair and Kimberly Morale, Petitioners, v. the STATE of Texas, Respondent
- Cited By
- 10 cases
- Status
- Published