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Click here for the full text of this decision FACTS:The state condemned 0.184 of an acre of a 9.0232 acre tract owned by Target in the city of College Station. The tract is improved with a Target retail store. The acquisition was a 15-foot wide strip of land being used by Target for landscaping and parking. The acquisition’s purpose was to widen Highway 6, which the strip fronted. Special commissioners awarded Target compensation of $156,812 for the taking, and Target objected. A jury awarded Target $564,290. The primary dispute at trial was Target’s damages for loss of parking. Target’s appraisal expert testimony included as much as $472,457 in damages for the loss of 35 parking spaces. The state’s appraisal expert determined that Target’s loss-of-parking damages were only $72,000 for 24 spaces, but the jury did not hear the state’s expert on those damages or on the amount of total compensation owed to Target. On the Friday before the Monday, June 7, 2004 trial, Target filed a motion to exclude the testimony of Steven Lovett, the state’s appraiser, and Jack Holford, the state’s land planning consultant. After the jury had been impaneled and the parties had made opening statements, a hearing was held on Target’s motion. The next day, the trial court granted Target’s motion and then later clarified its ruling to prohibit Lovett from testifying about remainder damages (including loss of parking) and total compensation. Target’s motion complained that the State’s supplementation of discovery responses — done 31 days before trial — was untimely. This supplementation included the identity of consulting experts or persons with whom the state’s testifying experts consulted and the persons with knowledge of relevant facts on whom its testifying experts relied. Although Target did not complain that the experts themselves had not been timely identified or that their reports had not been timely produced, it complained that the State untimely produced Lovett’s one page of calculations that supported his opinion that the utilization level of the remote parking spaces lost by Target was 20 percent and thus should be discounted by 80 percent. This analysis, including the 20 percent utilization factor, was in Lovett’s timely produced expert report and was examined by Target in Lovett’s first deposition on April 28, 2004. Lovett’s working file had been provided to Target’s counsel a few days before his deposition, but during Lovett’s deposition, he realized that the calculations page was missing. On May 7, the state produced this page, and the state tendered Lovett for a second deposition (on May 28) in which Target was able to question him about the page. The trial court ruled that Lovett and Holford would not be allowed to testify about opinions that were based on information provided by persons who had not been timely identified: Lovett could not testify to the importance of parking within a 300-foot radius of a business’s front door or that Target’s parking situation was adequate; and Holford could not testify about his conversations with the city development services staff about his site plan, that his plan would be approved if submitted, or about safety issues affecting Target’s parking lot. Lastly, the trial court ruled that Lovett could not testify about his 20 percent utilization factor, which prevented the State from offering Lovett’s opinion testimony on remainder damages and total compensation. Target’s appraisal expert testified at trial that Target was entitled to total compensation of $704,458, including as much as $472,457 in damages for loss of parking. The State estimates that the jury awarded Target as much as $383,081 in loss of parking damages as a part of the total compensation award of $564,290. The State made an offer of proof that Lovett would have testified that the property suffered remainder damages of $72,000 and that the total compensation amount was $253,209 and that Holford would have testified that the City’s Development Services staff had indicated that his plans would be accepted if submitted by Target and that he was of the opinion that Target’s parking lot was not unsafe after the State’s acquisition. HOLDING:Reversed and remanded. The trial court abused its discretion in excluding the state’s expert testimony because the record establishes that Target would not have been unfairly surprised or prejudiced by the state’s supplementation. In closing argument, Target argued that the state had failed to provide evidence on remainder damages and on the total amount of compensation due, that the jury should award the amount testified to by Target’s expert, that Holford had no support for his opinion that his land plan complied with city ordinances, and that Holford and the State did not care whether Target’s driveways were safe. The jury awarded Target $564,290 in total compensation, which was $311,081 more than the state’s expert’s opinion on total compensation of $253,209, which was erroneously excluded from evidence. The court concludes that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. OPINION:Vance, J.; before Gray, C.J., Vance and Reyna, J.J. (Gray concurs only in the judgment but not in the opinion of the court).

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