Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The state filed a petition for condemnation seeking to acquire land in the city of Dallas. The land was located at US 75 and IH 635 and was required for a highway improvement known as the “high five interchange.” At the time the state filed its condemnation petition, the land was being used for a billboard site. The billboard was on an easement owned by Central Expressway Sign Associates (CESA) who leased the billboard site to Viacom Outdoor Inc. Viacom in turn sold space on the billboard to advertisers. After the state filed its petition, the trial court appointed special commissioners, who determined the fair market value of the property was $2,012,300, to be awarded to CESA as the owner of the easement and Viacom as the owner of the leasehold on the easement. The state objected that the award was excessive and demanded a jury trial on the issue of the fair market value of the land. Viacom and the state subsequently settled most of the dispute between them, including the issue of Viacom’s compensation for its interest in the land taken. The issue of the fair market value of the land taken nevertheless had to be tried because the state did not settle with CESA. Before trial, the court held a hearing to determine the admissibility of expert testimony. After the hearing, the trial court struck both the state’s and CESA’s valuation experts. As a consequence, no party offered expert testimony at trial, and the only witnesses on value were CESA principals George Allen and Randolph Perry. The court permitted them to testify as owners of the easement. Allen testified that in his opinion, the fair market value of the land taken was $2.5 million. Perry opined that the land was worth between $2.5 million and $2.8 million. The jury found that the fair market value of the land was $1,850,000. The trial court entered a judgment in favor of CESA and Viacom jointly in accordance with the jury’s verdict. The state appealed. HOLDING:Affirmed. In its first issue, the state asserted that the trial court erred in excluding the testimony of Grant Wall, its expert witness. The testimony of an expert appraisal witness in a condemnation action, like other expert testimony, must be relevant to the issues in the case and based upon a reliable foundation, the court stated. Under the “undivided fee rule,” in a condemnation proceeding where there are different interests in real estate, the valuation of the various interests is usually determined by ascertaining the market value of the property as though owned exclusively by one party. The market value so found, the court stated, should then be apportioned among the various interests. After hearing the substance of Wall’s testimony, the trial court determined it was unreliable, apparently because Wall did not consider Viacom’s interest when he valued the land. In sum, the court found that the trial court could have determined Wall’s testimony was not reliable, because he completely disregarded the income the property generated from advertising sales. Thus, the court found that the trial court did not abuse its discretion in excluding Wall’s testimony. In its second issue, the state contended that the trial court abused its discretion in admitting the testimony of George Allen and Randy Perry. The state asserted that the trial court erred in admitting this evidence, because their testimony was based on capitalization methods that included “business income.” It also asserted that Allen and Perry testified to inadmissible hearsay. Allen’s valuation testimony was repetitious and lengthy, and the state’s objections to that testimony were few and far between. The state did not object every time Allen offered the offending testimony and did not seek or obtain a running objection to Allen’s testimony. Moreover, Perry’s testimony duplicated Allen’s complained-of testimony. Thus, the court concluded that the state, by not obtaining a running objection, did not preserve error regarding the owners’ valuation testimony. In its third issue, the state asserted that insufficient evidence supported the jury’s verdict. But the court found that the hearsay evidence that made it into the record by the lack of a running objection could support the verdict. Unlike other types of incompetent evidence, the court stated, inadmissible hearsay admitted without objection is not denied probative value merely because it is hearsay. OPINION:O’Neill, J; Moseley, O’Neill and Lagarde, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.