*1 authority applied this concluding that regarding the jury questions
conditioning Stage Lighting BML claim whereas
same differ- conditioning between two
involved at hand id. case claims. See
ent questions re- conditioning within
involves claim; therefore, BML the same
garding point. not on
Stage Lighting is reasons, is merit in these there
For Insureds’ third issue.
Conclusion above, this court
For the reasons stated Order in its en- affirm the March
should the court
tirety. To the extent reverses Order, respectfully dissent.28
the March STORES, FOOD
SPEEDY STOP
LTD., Appellant,
REID ROAD MUNICIPAL UTILITY 2, Appellee. NO.
DISTRICT
No. 14-07-00225-CV. Texas, Appeals
Court Dist.). (14th
Houston
Feb. 2009.
Rehearing March Overruled addition, majority's disposi- as to the Insureds’ claims for In even if the correct, completely negligent supervision, alleged tion of the were negligence, issues (1) court should dismiss as moot the Insureds' of article 21.21 of the Insurance violations appeal April as to trial court's Code, (5) claims sever remand these order, (2) Lexington’s moot motion dismiss as proceedings consistent further appeal to dismiss Insureds' as to (6) opinion, and affirm the remainder order, (3) Desig- Lexington’s deny To “Motion judgment. of the trial court’s Review,” (4) reverse nate Items for Camera
erty may testify regarding that market value, even if he is not or desig- (hereinafter nated an witness Rule”). “Property Today we must rule, applied decide whether this countless property owners, times individual ap- plies corporate property owners. The Supreme Court of directly Texas has not spoken matter, on the and our sister of appeals courts divided this issue. The trial court granted a no-evidence summary judgment striking after all of the evidence offered the cor- porate property owner the condemna- tion action. One of the stricken affidavits by representative was made a corpo- rate Property Rule. If Owner Rule entities, does not to corporate then the trial court did not in striking err If affidavit. Owner Rule apply, does then the trial court erred in striking the affidavit. We conclude that to all owners, including corporate prop- erty owners. Because evidence in the stricken a genuine affidavit raises issue of material fact regarding compensation, we reverse and remand. Background And
Factual Procedural Stores, Appellant Speedy Stop Food Russell, Victoria, Bill for appellant. W. Ltd., a partnership (“Speedy Texas limited Dippel, appellee. C. Charles Stop”) owns a 2.0661 acre tract of land in County, (“Property”). Ap- Harris Texas FROST, Panel consists Justices pellee Municipal Utility Reid Road District SEYMORE and GUZMAN. (the “District”) 2No. initiated a condemna- tion action the trial court for the below MAJORITY OPINION purpose acquiring a .0592 acre waterline over, under, through, easement and across FROST, KEM THOMPSON Justice. construction, opera- appeal summary judg- This is an from a tion, and maintenance of facilities for ment in a condemnation case. At the cen- transportation delivery of water. controversy long- ter of the is Texas’s standing special rule that a The trial court three appointed owner who familiar the market commissioners to condemnation prop- assess Property immediately commissioners convened before and
damages. These proffered the District hearing, immediately after the condemnation of the Ambrose, a state- appraisal by easement. LaBeff does have real- appraiser. opined Ambrose certified license, estate broker’s and he is not a *3 $9,342. damages are Speedy Stop’s appraiser. licensed real-estate Speedy damages Special Commissioners assessed designate Stop expert did LaBeff as an Speedy in that amount in Stop, favor witness. in deposited and the District sum that Speedy Stop transcript also attached a registry amount into the of the court be- appraisal of David Ambrose’s testimo- and Speedy Stop timely objections filed low. ny special from the commissioners’ hear- special findings to the commissioners’ un- ing. testimony, opined In this Ambrose statute, triggering der the condemnation Speedy Stop’s damages total proceeding de in the trial court. The novo $9,342. Speedy Stop stated that it at- granted par- court first a motion for testimony tached this as an admission summary judgment tial of the favor against interest. District, only after remaining which summary-judgment In its reply, the Dis-
issue the amount of compensation was to objected trict to LaBeffs affidavit and Speedy Stop. be awarded to moved to exclude it on following The District then filed a second motion grounds: summary judgment for it assert- (cid:127) designating The time for experts has single ed a ground, namely no-evidence expired, Speedy Stop did not des- that there is no evidence of the amount of ignate LaBeff as an witness. just compensation paid to Speedy to Stop taking (cid:127) of the easement. its LaBeff is not to anas motion, the sought judgment District expert because he is not a licensed Speedy Stop be one dollar in awarded appraiser. real-estate damages nominal for the condemnation of (cid:127) methodology satisfy LaBeffs does not the easement. In response, Speedy Stop reliability requirement for LaBeff, offered the affidavit of Carlton testimony. president vice general partner of the objected The District also to the admission Speedy Stop. LaBeff made the affidavit on testimony of Ambrose’s and appraisal. behalf of the owner of the The record reflects that the trial court that, Speedy Stop. LaBeff for testified sev- focused on the issue of whether the Prop- years, eral he in charge has been of all real erty corporate Owner Rule enti- acquisitions estate for Speedy Stop, which not, ties. The argued District it does and operates more than a hundred Speedy argued Stop it does. The trial convenience stores in According Texas. court sustained the objections District’s affidavit, LaBeff the person has LaBeffs affidavit and to responsibility Ambrose’s testi- dealing with easement mony appraisal. stores, The trial court issues all of the granted the District’s he was motion to exclude acquisition involved with the of the these items from the summary-judgment convenience store on the that is subject evidence. this condemnation action. With evidence before it as to compensation LaBeffs affidavit shows that he is how much familiar District must pay Speedy with the market Stop, granted the trial court question. LaBeff testified that there is a the District’s no-evidence motion for sum- $62,000 difference in the fair mary judgment. The trial court rendered witnesses). Therefore, if, Stop receive one as the District Speedy for the condemna- asserts, the Property dollar Owner Rule does not easement, and the trial court tion of the apply entities such as that the trial court clerk distribute ordered Stop, the trial court did not err in exclud- $9,341 registry in the remaining if, ing LaBeffs But appeal, In this court to the District. asserts, Stop trial court’s
Speedy Stop challenges the does to corporate entities such as summary judgment. Speedy Stop, the trial then court abused by sustaining its discretion the District’s Presented Issues objections to LaBeffs affidavit sup- *4 the
Speedy Stop presents following is- pressing his sues: brief, In appellate its (1) granting Did the trial court err in Stop explicitly challenge does not the trial no evidence motion District’s] [the evidentiary court’s ruling striking LaBeffs summary judgment? Nonetheless, affidavit. the Texas Su (2) summary judg- [Speedy Stop’s] Was preme emphasized Court has that we must evidence, ment the affidavit of Carl- presented liberally construe issues to ob LaBeff, ton as the owner as fair, just, equitable adjudication tain a witness, of the lay some evidence rights litigants. Perry v. property rights being Cohen, 2008). (Tex., S.W.3d condemned? light Speedy Stop’s In argument attack (3) testi- appraisal [the District’s] Was ing the basis for the trial suppres court’s mony by Mr. Ambrose at the affidavit, sion LaBeffs we construe hearing condemnation or Mr. Am- Speedy Stop’s assigning brief as error to appraisal brose’s some evidence (hold ruling this of the trial court. See id. had property being condemned ing by that court of erred conclud value? ing appellant assign failed to error as to Stop appellate brief argues its because, special-exceptions order yet reasonable liberal construction of ap corporate entities and that LaBeffs affida- brief, pellant’s appellant challenged this vit, Speedy Stop, on behalf of raises a fact given presented argu order that appellant issue as to the amount of order, ment the basis of this challenging pay Speedy Stop. District must LaBeffs though appellant expressly did not chal familiarity affidavit shows order). lenge we address states evidentiary the trial ruling striking condemnation of the easement LaBeffs affidavit.
would decrease the market value of the $62,000.1 See Porras Standards Of Review (Tex.1984) Craig, 675 S.W.2d 504-05 evidentiary (stating We review a trial courts’s they rulings the market value of their if for an abuse of discretion. In re (Tex.2005) J.P.B., it, they (per state that are familiar with even curiam). though they testifying are not as The trial court abuses its disere- $62,000. suggests affidavit value of the The District that LaBeff’s market reasonably can be construed to state that the disagree. We condemnation of the easement will increase year Mayes, Tire & Rubber Co. v. guiding reference to acts without tion if it (Tex.2007). arbitrary in an or 755-56 principles, rules or Aqua- manner. Downer unreasonable ANALYSIS Operators,
marine
Supreme
Court of Texas has
(Tex.1985).
241-42
are familiar
held that
owners who
summary
reviewing a no-evidence
property,
the market value of their
whether the non-
judgment, we ascertain
may testify as to
including
real
summary-judgment ev-
pointed
movant
out
value,
opinions regarding
their
even
probative
genuine
force to raise a
idence of
though they
qualify
do not
wit
elements
of fact as to the essential
issue
though they
nesses and
would not be
even
grounds.
in the no-evidence
attacked
testify regarding the market
allowed to
Pritchard, P.C., 73
v. Brewer &
Johnson
property they
value of
do not
own.
(Tex.2002).
193, 206-08
A no-evi-
Homes,
Ivy,
Redman
Inc. v.
summary
granted
dence
must
(Tex.1996);
Craig,
Porras v.
party opposing
if the
the motion does
(Tex.1984).
Though
504-05
summary-judgment evidence
respond with
a natural person,
the owner
Porras was
fact.
genuine
that raises a
issue material
*5
Property
the Porras court stated that the
Root,
Kellogg
v.
Brown &
Arguelles
See
applies
Rule
to “the owner” of the
Owner
Inc.,
714,
222
(Tex.App.-Hous-
S.W.3d
723
Porras,
property. See
657
setts,
783,
1997,
Minnesota,
(Tex.App.-Waco
Oregon
798
have
949
held
Shrimp Farm Village
and Taiwan
pet),
representatives
a corporate
of
proper
Dev.,
Shrimp
Inc. v.
Farm
U.S.A.
ty
fall within the
61,
915
(Tex.App.-Corpus
71
if they
familiarity
demonstrate
denied),
1996,
writ
Mobil
Christi
Oil knowledge
question
as a
Falls,
City
v.
489
Corp.
Wichita
result
their
the corporate
work for
enti
1972,
148, 150
Worth
(Tex.Civ.App.-Fort
Harbond,
Anderson,
ty.
v.
Inc.
134
n.r.e.).
does not appear
There
816,
(Fla.App.1961);
So.2d
818-19
M.A.
Supreme
a ease
to be
from the
Court of
Comm.,
Realty Co. v. State Roads
247 Md.
point.
or this court
Texas
on this
522,
793,
(1967);
233 A.2d
795-96
Newton
Arizona, Colorado, Kansas,
Council,
Courts
Scout
v.
Girl
Inc. Massachusetts
Tennessee,
have
Washington
held that
Auth.,
Turnpike
189,
Mass.
335
138
applies to corpo
769,
(1956);
N.E.2d
775
McClure Village
owners,
rate
while courts
Hawaii and
339,
Valley,
Browns
143 Minn.
173 N.W.
it
Nebraska have held that
does not. 672,
(1919);
673
Oregon Assembly of
112
Compare
Marquart,
Atkinson v.
Ariz. God,
167,
(1962).
230 Or.
368 P.2d
(1975);
304, 541 P.2d
Denver Ur
uniformity
The interests of
and consisten
Berglund-Cherne
ban Renewal Auth. v.
weigh
cy
allowing
in favor
corporate
Co.,
P.2d
Colo.
to be
of property
“owners”
Stations,
(1977); McCall Service
Inc. v.
Rule;
otherwise,
nat
Park,
Overland
215 Kan.
City
persons
greater
ural
have
rights
(1974);
P.2d
Tennessee v. Liv
regarding
their
than
Co.,
ingston Limestone
Weber,
owners. See
testifying as
acquisitions
Speedy Stop,
504;
Berger,
430 S.W.2d estate
State
at
more than a hundred
operates
(Tex.Civ.App.-Waco
in
n.r.e.).
stores in Texas. He was
to con
convenience
There is no reason
acquisition
the
of the conven
are famil
volved with
officers who
corporate
clude
property
the
is the
corporate
ience store on
market value of
iar
with
and he
subject of this condemnation action
per
reliable than natural
are less
property
dealing
responsible for
the market
is the individual
familiar with
sons who are
at all of the
easement issues
property.
Supreme with
value of their
LaBeffs affidavit shows
already
adopted
Stop
has
stores.
of Texas
Court
the market value of the
per
familiarity
Rule as
natural
Property Owner
Homes,
Therefore,
Inc.,
testimony
LaBeffs
Redman
sons. See
Porras,
669;
admissible under the
659 (Tex. Co., 394, Second, disagree 396 I the majority’s Ins. Fire 1999). suggestion that admissibility for we are presented The standards with a impression case of first to relative summary judgment in a whether proceed evidence unqualified corporate representative or to a ing applicable are the those same as give should to allowed regular trial. Blood Servs. v. Lon United testimony regarding the market value of 29, (Tex.1997); 938 30 Mil goria, S.W.2d property. The Texas Supreme Court has Co., Raytheon v. 229 ler S.W.3d Aircraft held may testify that a landowner regard- 358, (Tex.App.-Houston Dist.] 365 [1st ing the market real value of his 2007, Accordingly, pet.). no for reasons lack despite his of competence testify to below, court outlined I hold the trial the value regarding belonging not abuse its did discretion. to another. Porras v. Craig, 675 S.W.2d First, brief, Speedy in its Stop did (Tex.1984). 503, 504 LaBeff is the vice directly consequences address the of its president Thomas, C.L. Speedy The timely designate experts. failure to Stop’s general partner. signed He his affi- designate experts as required failure owner, davit “on behalf of the as the own- the rules is exclusion of sanctionable er’s representative and as the owner.” Al- 193.6; expert’s Tex.R. P. report. Civ. though he stated that he supervised all of Brown, 63, Duerr 262 see also v. 76 Stop’s S.W.3d Speedy property acquisitions, he is 2008, (Tex.App.-Houston no [14th Dist.] not the land owner. Sebek, 20, Metzger land,
pet.); not LaBeff.1 La- competent Beff (Tex.App.-Houston no is not regarding [1st Dist.] writ) Stop’s value of (“Every trial has the court ‘inherent disposition power’ control the Third, disagree the majority’s economy cases on its docket “with of time suggestion that in Shrimp Taiwan Farm itself, counsel, effort for for for Village Inc. Shrimp v. U.S.A. Farm ” Co., litigants.’ (quoting Landis N. Am. Development, Inc. 248, 254, 299 U.S. 57 S.Ct. 81 L.Ed. 61(Tex.App.-Corpus Christi writ de- (1936))). Consequently, this court nied) Libhart v. Copeland, affirm summary should (Tex.App.-Waco pet.), our solely Stop’s based sister courts held the timely designate expert failure to wit corporations. In Taiwan Thirty Assoc., nesses. Joe v. Two Nine Joint Shrimp Farm the court of Venture, (Tex.2004). cited proposition that a (Tex.1984) majority "Corporate The opines: *8 predicated entirely is Rule owner property just persons as natural owners ship. on the an owner It rests fact that ordi are, any give and the court did not narily property. the knows value of his Ber indication that the is ger, corporation at 559. A that persons.” limited to who are natural property present testimony cannot with Supra p. colleagues My Por- miss the who, designating agent employee out an point ownership. ma ras about definition, is not the submit owner. that the jority Berger, State v. Porras cited Supreme implicitly Texas Court decided this (Tex. App.-Waco writ Moreover, extending Porras. issue in the n.r.e.), support ref'd of their conclusion expert Owner Rule to testimo allow witness, unqualified that is otherwise who ny designated agents corporations from of give testimony, expert may testify regard unqualified give who are otherwise such ing the market value of his own not purpose testimony would emasculate the property Craig, 675 of the of others. Porras v. intent of Rule Texas Rules Evidence. may testify re years, for eleven poration regarding the may testify owner
property in connection of leasehold property. garding Without value of market value enti- condemnation the of apportionment distinguishing between its justified lessee, the court but not president, lessor ty and its award between “a that the bare assertion principal shareholder addressing decision with whether testify to market value property pursuant expert or testified qualified as an it refers to testimony shows long as exception). to landowner intrinsic value.” and later regard for vertical Giving due Libhart, former mem- decisis, my opinion considered it is al stare church, previously a dissolved bers of Corp. City in Mobil holding the Oil association, unincorporated formed as an disposition our of Falls controls Wichita of for fraud and pastor former their sued (Tex.Civ. 148, 150 appeal. parsonage. See conversion n.r.e.). ref'd writ App.-Fort Worth The court of 790-91. S.W.2d at of case the issue In a condemnation where that he testified was pastor] noted “[the unqualified an cor testimony from $55,000. parsonage trying to sell drawn, Fort sharply porate agent was former member’s] agreed [the He emphatically con Appeals Worth Court that much.” Id. that it worth counsel was exception that the does cluded landowner Citing Porras and Taiwan at 798. agents corpo designated not extend to held the the court Shrimp Farm owners, agent unless rate regarding the value pastor’s admission Accordingly, I qualifies expert. as an Id. constituted some evidence parsonage the trial court’s decision would sustain damages. jury could award from which LaBeff exclude LaBeffs affidavit because appeals did not base its court of Id. The subject property. not the owner of the an pastor’s capacity as on the opinion church. agent the sum- Speedy Stop further contends a number of cases Stop cites Speedy be- mary judgment should be reversed of a courts allowed Texas testimony of Reid appraisal cause the testify regarding value entity to business witness, Ambrose, amounts Road’s However, of those cases none the condemned to some evidence entity a business agent of involved an argues had value. landowner allowed was trial court abused its discretion general rule that the dif to the exception report and tes- excluding David Ambrose’s immediately of land before ference timony special commissioners. before by the taking proved must be after the The record is silent relative to the qualified expert. properly testimony of excluding court’s rationale for Ambrose’s Bank Tex. Commerce Maxey v. noted, previously report and As Lubbock, (Tex.Civ.App.- Stop ignores possibility n.r.e.) Amarillol978, (involving the trial court not consider Ambrose’s did testifying about Stop did not report simply because Co., 459 value.); Tellepsen Const. State experts. timely designate (Tex.Civ.App.-Houston [14th S.W.2d 447 contention that writ) Speedy Stop supports its (same); Pig Tex. Dist.] *9 and earlier tes- report Ambrose Stands, Krueger, 441 Inc. hearsay, arguing that such 1969, timony are not Antonio writ (Tex.Civ.App.-San against admission inter- n.r.e.) statements an of (holding principal shareholder Yarbrough’s Dirt Speedy Stop cites leases of cor est. negotiated corporation, who proposition supporting Pit v. Tuner that a record the contention that the by expert by an an report conclusion hired ad constitutes an by admission Reid Road, by is to an admission a I party verse similar would hold that the trial court did that a party opponent, and conclusion an not abuse its by excluding discretion Am- expert by opposing party report hired an brose’s witness and earlier against party opponent. is admissible For all the above, reasons outlined I 210, 214 (Tex.App.-Beaumont 65 S.W.3d affirm of the trial However, I pet.). per no am not court. respectfully dissent. by Yarbrough. suaded the rationale in Mkts., Inc., McCluskey v. Randall’s Food 14-03-01087-CV,
No. 2004 WL (Tex.App.-Houston
*3-5 [14th Oct. Dist.]
19, 2004, pet.) (mem.op.). no To hold that by expert
all statements made an witness party
are admissions of the who called the expert is to misconstrue the rules of evi SOLVENT UNDERWRITERS SUB dence, agency, and the purpose law SCRIBING TO ENERGY INSUR employment expert witnesses. INTERNATIONAL, ANCE INC. COV 801(2), To be an admission under rule ER NOTE NO. EII-3824 and Solvent party’s statement must be made Subscribing Energy Underwriters 801(2). agent or servant. Tex.R. Evid. A International, Insurance Inc. Cover person not an agent is or unless he servant EII-3825, Note No. Appellants, subject party’s is to another control. See AG,
Coleman v. Klockner & Co. (Tex. App.-Houston [14th AMERICA, FURMANITE pet.). no If there is no proof
Dist.] INC., Appellee. control, there is no agency relationship. No. 14-07-00889-CV. Ross v. Tex. P’ship, One (Tex.App.-Dallas 1990), denied, Appeals Texas, Court of (Tex.1991) curiam). (per (14th Dist.). Houston Evidence, expert Under Rules of Feb. 2009. required own, regarding his theo retically impartial, Rehearing Rehearing En opinion. See Tex.R. Banc April Overruled Accordingly, testimony Evid of an not, ipso facto, should be deemed an admission of the party originally expert’s
sought opinion.
Although testimony expert may of an
admissible as an admission a party if
opponent is the of the party opponent,
servant see Tex.R. 801(2),
Evid presented has acting
evidence Ambrose was as an
agent or servant of Reid Road for any
purpose other than to provide expert testi-
mony. Because there is no evidence in the