Court Decisions

Procedure – Eminent Domain: Oak Lawn Apartments, Ltd. v. State, No. 02-16-00287-CV, 2018 Tex. App. LEXIS 376, at *1 (App.—Fort Worth Jan. 11, 2018). Because we hold that the statements in Oak Lawn's "Motion To Withdraw Award Of Special Commissioners" do not constitute a statement of objections to the special commissioners' award, and that, thus, the underlying administrative proceeding was never converted into a judicial proceeding over which we have jurisdiction, we will dismiss this appeal for want of jurisdiction.

Valuation Evidence – Eminent Domain: State v. Gleannloch Commer. Dev., LP, No. 14-16-00037-CV, 2017 Tex. App. LEXIS 11921, at *1 (App.—Houston [14th Dist.] Dec. 21, 2017). Legally sufficient evidence supported a jury's finding as to the value of a condemned property because the finding fell within the range of comparable sales evidence presented to the jury, although the value found by the jury was greater than the highest amount adopted by an expert witness

Expert Testimony: Brightwell v. Bandera, No. SA-16-CA-1216-XR (Rodriguez, X., Nov. 13, 2017). EMS first responder sued employer alleging his FMLA rights were violated. Employer designated fire chief as an expert witness, and employee moved to strike. Court determined that rather than addressing appropriate standards of treatment and medical care required of paramedics and for documenting patient care, expert report appeared to be a review of employee’s job performance that included a conclusion that the employer’s termination decision was appropriate. Given the type of documents referenced by the expert, namely personnel file type documents, and applying Emami, Court determined that proposed expert’s testimony was neither relevant nor helpful to the jury. Accordingly, Court excluded expert’s testimony.

Expert Testimony: Koenig v. Beekmans, NO. 5-15-CV-00822-RCL-RBF (Farrer, R., Nov. 9, 2017). Court denied motion to exclude or limit expert testimony. Any argument that expert’s testimony was unreliable could be addressed on cross examination and left for the jury’s consideration.

Expert Testimony: Hitchcock v. Steak N Shake, Inc., No. SA-16-CA-922-XR (Rodríguez, X., Nov. 2, 2017). Court denied defendant’s motion for summary judgment and rejected argument that summary judgment was appropriate due to plaintiff’s alleged lack of expert testimony on issue of liability. Court noted that it is within a lay person’s province to evaluate whether efforts to clean up a spill were enough to make a condition reasonably safe. Court evaluated what type of sensory perception is necessary to support a bystander claim. Because spouse heard the commotion related to his wife’s fall, sufficient evidence existed to support his bystander claim and deny summary judgment.

Valuation Evidence – Eminent Domain: State v. Speedway Grapevine I, Ltd. Liab. Co., No. 02-16-00144-CV, 2017 Tex. App. LEXIS 9850, at *1 (App.—Fort Worth Oct. 19, 2017). Car wash property was condemned for a highway improvement project. The trial court did not abuse its discretion by denying a motion by the State of Texas to exclude the owner's valuation opinion because the owner's testimony, considered in its entirety, established a valid factual basis for his valuation opinion. The damage opinions of the owner's appraisal expert were neither conclusory, nor speculative. Furthermore, his reduction in land value was not attributable to only non-compensable impairment of access, under Tex. Prop. Code Ann. § 21.042(d) (2014), or community damages, under Tex. Const. art. I, § 17. The evidence was legally and factually sufficient to support the jury's finding of damages to the remainder property.

Public Use – Eminent Domain: KMS Retail Rowlett, LP v. City of Rowlett, No. 05-16-00402-CV, 2017 Tex. App. LEXIS 6683, at *1 (App.—Dallas July 19, 2017). A city established as a matter of law that a taking of a private access road was necessary for a public use to provide cross-access, traffic circulation, and emergency vehicle access while preventing an increase in traffic flow on a nearby parkway, and it was immaterial whether the city wanted to assist a retail development project because public benefit was shown and the improvements were not clearly and palpably private. The city's determination of necessity and public use was not fraudulent or arbitrary and capricious because it was not shown to be a pretext for private use and did not lack any reasonable basis.

Expert Disclosures; Daubert: Villegas v. Cequent Performance Prods., SA-15-CV-473-XR (Rodriguez, X., Mar. 1, 2017). Court struck two sections of expert’s declaration, filed in response to a Daubert motion, which contained new information such as a list of academic citations that the expert could not recall at his deposition. Despite these strikes, Court denied Daubert motion. Expert’s reports stated that the scientific underpinnings of his theory were common knowledge, and cited Galileo and Sir Isaac Newton, but were nevertheless based on more than just his assurances that he had utilized generally accepted scientific methodology. Expert’s ignorance of certain facts and his failure to test his theories were matters of probative weight rather than admissibility. In addition, failure to test alternative designs, without more, did not render testimony unreliable.

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