Harris County Flood Control District v. H. Ben Taub, Kitchco Realty, LTD., Metco Realty, LTD., and Texan Land and Cattle II, LTD
14-15-00077-CV
| Tex. App. | Jun 11, 2015Background
- Harris County Flood Control District condemned a 42-acre tract in Deer Park for a detention basin; special commissioners awarded $9,000,000, owner demanded jury trial.
- At trial the sole issue was market value as of July 28, 2010; jury returned $11,636,238 (exactly matching defendants’ expert Mark Sikes’s opinion).
- County’s expert valued the land far lower (~$2.00/sf, reduced to ~$1.39/sf after access costs); Taub’s expert opined $6.25/sf based on 10 “comparable” sales.
- Harris County objected at trial to several comparables as legally inadmissible or non‑probative: (1) an unconsummated sale/contract for the subject tract, (2) an unexercised option for a 60‑ft access strip, (3) sales to governmental entities with eminent‑domain power, and (4) very small/dissimilar hotel parcels. Many objections were overruled.
- Appellant argues the trial court abused its discretion by admitting those comparables (and excluding evidence that would have shown an apparent donation discount in a school district sale), producing an unreliable expert foundation and reversible error.
Issues
| Issue | Plaintiff's Argument (Harris County) | Defendant's Argument (Taub) | Held |
|---|---|---|---|
| Admissibility of unconsummated sale/offer as a comparable | Unconsummated offers and unaccepted offers are inadmissible to prove value in condemnation; Comparable Sale 8 was an unclosed contract and should be excluded | The transaction was probative and relevant as a contemporaneous indicator of market intent/price | Trial court erred by admitting evidence of unconsummated sale (abuse of discretion) |
| Admissibility of unexercised option (Kinder Morgan strip) | Unexercised option is equivalent to unaccepted offer and is incompetent to prove value; option was never exercised | Option/strip was relevant as an identified market transaction affecting access/value | Trial court erred by admitting the unexercised option as a comparable (abuse of discretion) |
| Use of sales to governmental entities with eminent‑domain power | Sales to entities with condemnation power are presumptively not free/voluntary and inadmissible as comparables (DPISD, City of Deer Park) | Those sales were arms‑length transactions and thus admissible — the entities weren’t exercising condemnation in those deals | Trial court erred by admitting sales to entities with eminent‑domain power (abuse of discretion); particularly prejudicial because expert’s opinion matched jury verdict exactly |
| Admissibility of dissimilar small parcels (hotel tracts and 1.9‑acre strip) | Very different in size, highest‑and‑best‑use, zoning, and access — not comparable and should be excluded | The sales could be adjusted and considered in the comparable‑sales analysis | Trial court erred by admitting dissimilar comparables (hotel parcels, 60‑ft strip) that lacked probative comparability |
Key Cases Cited
- Gomez Leon v. State, 426 S.W.2d 562 (Tex. 1968) (sales to governmental agencies with eminent‑domain power are not admissible in condemnation suits because they are not free and voluntary)
- City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461 (Tex. 1970) (same principle: entities with condemnation power make non‑voluntary sales unsuitable as comparables)
- In re Kuntz, 124 S.W.3d 179 (Tex. 2003) (trial court abuses discretion if it misstates or fails to apply governing law)
- Lower Nueces River Water Supply Dist. v. Sellers, 323 S.W.2d 324 (Tex. Civ. App.—San Antonio 1959) (unaccepted offers to buy are inadmissible and their admission can be harmful error)
- State v. Dickerson, 370 S.W.2d 742 (Tex. Civ. App.—Houston 1963) (unaccepted offers inadmissible on value question)
- State v. Williams, 357 S.W.2d 799 (Tex. Civ. App.—Texarkana 1962) (unexercised option is incompetent evidence of value and may render judgment reversible when harmful)
- Guadalupe‑Blanco River Auth. v. Kraft, 77 S.W.3d 805 (Tex. 2002) (comparable‑sales method fails when comparables are not truly comparable)
- Collin Cnty. v. Hixon Family P’ship, Ltd., 365 S.W.3d 860 (Tex. App.—Dallas 2012) (comparables must have same highest and best use as the condemned tract)
- Creighton v. State, 366 S.W.2d 840 (Tex. Civ. App.—Eastland 1963) (reversal warranted where comparables were not shown to be comparable)