
                             NO. 07-11-00079-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              OCTOBER 23, 2012
                        _____________________________


                   HARTMAN INCOME REIT PPTY HOLDINGS, LLC,


                                   Appellant
                                     v.


      DALLAS CENTRAL APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD
                    OF DALLAS CENTRAL APPRAISAL DISTRICT,


                                   Appellees
                        _____________________________

               FROM THE 134TH DISTRICT COURT OF DALLAS COUNTY;

            NO. 09-12040-G; HONORABLE JAMES M. STANTON, PRESIDING
                        _____________________________

                             Memorandum Opinion
                        _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Hartman Income REIT PPTY Holdings, LLC (Hartman)  appeals  a  judgment
denying recovery  upon  its  claim  against  the  Dallas  Central  Appraisal
District and the Appraisal Review Board  of  the  Dallas  Central  Appraisal
District (jointly referred to as "the  District").   The  latter,  in  2009,
allegedly assigned an excessive value to property  Hartman  owned.   Hartman
sought to correct the error and reduce the valuation.  After  trial  to  the
court,  the  aforementioned  judgment  was  entered.   Hartman  now  asserts
thirteen issues for us to review.  They  can  be  divided  into  two  common
categories, however.  One deals with the admission of an exhibit  which  had
not  been  disclosed  during  discovery,  while  the  other   concerns   the
sufficiency of the evidence or accuracy of the law underlying  many  of  the
trial court's findings of fact and conclusions of law.  We affirm.
      Issues One through Six and Eleven and Twelve
      The eight issues  we  initially  address  involve  the  trial  court's
decision to admit into  evidence  defense  exhibit  1B  which  the  District
failed to disclose to Hartman.  The  exhibit  consisted  of  final  property
values derived by the District's expert witness.  Because  the item was  not
disclosed, despite timely discovery requests for such documents,  the  trial
court should not have admitted it, according to Hartman.   Furthermore,  the
topic was broached during trial and via a motion for new trial.   The  trial
court not only admitted the document at  trial  but  also  denied  Hartman's
motion for new trial.   We overrule the issues.
      The applicable standard of review is one of  abused  discretion.  City
of Brownsville v. Alvarado, 897  S.W.2d  750,  753  (Tex.  1995)  (involving
discovery and evidentiary issues); Clift v. Huggins, 724 S.W.2d 778,  778-79
(Tex. 1987) (involving the granting or denial of a motion  for  new  trial).
Under it, the decision of the trial court must fail to comport with  guiding
rules or principles or otherwise  be  arbitrary  before  we  can  alter  it.
Owens-Corning Fiberglas Corp. v. Malone, 972  S.W.2d  35,  43  (Tex.  1998).
Finally, the burden lies with the appellant to establish that  an  abuse  of
discretion occurred.  See Navistar Intern. Corp. v. Valles, 740 S.W.2d 4,  6
(Tex. App.-El Paso 1987, no writ).

      Admission of Exhibit at Trial
      Next, no one disputes that exhibit 1B  fell  within  the  category  of
documents encompassed by a request for disclosure or  production  propounded
by Hartman.  And, at trial, Hartman objected to its  admission  because  the
District allegedly failed to lay  a proper foundation for its  admission  or
disclose it during discovery.   The  ensuing  discourse  between  the  trial
court and Hartman's counsel include statements by  counsel  that  "I've  not
seen him show me where it's been produced today," "[a]ctually, it's  one  of
our exhibits, Your Honor," and  "I'll take . . . [opposing counsel]  at  his
word that he disclosed it, but I've not seen the  production  or  disclosure
where these were produced  today."   (Emphasis  added).   Upon  hearing  the
latter, the trial court overruled the objections and admitted  the  exhibit.
Later, counsel for Hartman would concede  that  he  withdrew  his  objection
regarding the failure to produce  the  exhibit.   These  circumstances  fall
short of evincing an abuse of discretion for several reasons.
      First, to preserve error regarding  the  admission  of  evidence,  one
must contemporaneously object.  Bay Area Healthcare Group, Ltd. V.  McShane,
239 S.W.3d 231, 235 (Tex. 2007).  By withdrawing  its  objection  at  trial,
Hartman waived its complaint about failing to  produce  the  exhibit  during
discovery.
      Second, it is true that a party has a  duty  to  supplement  discovery
requests.  Tex. R. Civ. P. 193.5(a).  However, we are cited to no  authority
suggesting that a litigant who previously provided documents in response  to
a discovery request must repeat the act on the day  of  trial.   Nor  do  we
know of any such general obligation.  This is of import given the  tenor  of
Hartman's  objection.   Again,   it   opted   to   accept   the   District's
representation at trial that it had previously been disclosed.  However,  it
continued to complain about the item not being  "produced  today."   Without
showing that the District had the duty to reproduce an exhibit  on  the  day
of trial, Hartman has not shown that the trial  court  failed  to  abide  by
guiding rules or principles.  Consequently, we cannot  say  that  the  trial
court's decision at trial constituted an abuse of discretion.
      Exhibit as a Basis for Motion for New Trial
      After trial and  the  entry  of  judgment,  Hartman  inquired  of  the
District about when exhibit 1B was produced via discovery.  These  inquiries
led the District to discover that it was  mistaken;  the  document  had  not
been provided.  Hartman then moved for a new  trial,  and,  at  the  ensuing
hearing, argued that the District's  failure  to  disclose  exhibit  1B  via
discovery was harmful.  This was purportedly so because  the  District  used
data from the wrong year in compiling the valuations.  In other  words,  the
comparables itemized in exhibit 1B were valuations for  the  tax  year  2010
though the dispute between the two litigants involved  the  tax  year  2009.
Eventually, the  trial  court  allowed  the  motion  for  new  trial  to  be
overruled by  operation  of  law.   This  constituted  error,  according  to
Hartman.  We again disagree for several reasons.
      First, Hartman was obligated to urge an objection  contemporaneous  to
the admission of the document. Boyer v. Scruggs, 806 S.W.2d 941,  946  (Tex.
App.- Corpus Christi 1991, no writ).  Because the objection initially  urged
was withdrawn, waiting to utter it again via a motion for new trial  is  not
sufficiently contemporaneous.
      Second, at trial, the witness sponsoring  exhibit  1B  also  sponsored
exhibit 1A.  When asked  how  the  former  differed  from  the  latter,  she
testified:  "I don't believe it is.  The only difference is that 1A was  the
nuts and bolts of the property" while "1B was the final  value."   In  other
words, "1A [encompassed] the line of factors that led . . .  [her]  to  1B."
She also acknowledged that the "two should be taken together."  Though  both
exhibits were eventually admitted into evidence, Hartman does  not  complain
about the admission of 1A.  Nor does it argue here  that  the  two  exhibits
actually differ in ways other than that mentioned at trial or that 1B  fails
to represent final values taken from data in 1A.  This  is  problematic  for
one is not harmed by the admission  of  purportedly  objectionable  evidence
when it was admitted elsewhere without objection.   Volkswagen  of  America,
Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
      Third, if one compares the alleged 2010 values represented  in  1B  to
the 2009 values appearing in documentation appended to Hartman's motion  for
new trial,  the  result  would  be  somewhat  surprising.   The  former  are
generally lower than the latter.    For instance, the  2010  value  assigned
to "Park Plaza" was  $2,857,050;  however,  the  2009  value  for  the  same
property was $3,150,000.  The same is true for "Park Central" which  dropped
in value from $6,826,110 in 2009 to $6,250,000 in 2010, and  "Coit  Central"
which dropped from $15,805,120 to $14,600,000 during the same period.   This
is of import because Hartman sought, via  its  suit,  to  reduce  the  value
assigned to its property  which  value  is  apparently  derived  through  or
affected by comparison to  the  value  of  comparable  properties.   So,  in
effect, what we have before us is a taxpayer complaining of  harm  from  the
appraisal district valuing its  property  through  comparable  values  lower
than the ones it should have used.  While this suggests  that  the  taxpayer
invites a re-valuation  of  its  property  based  upon  higher  comparables,
Hartman cites us to no legal authority requiring a new trial  due  to  error
that benefits the complainant.  Nor did we find any.

      Remaining Issues
      Hartman's remaining issues concern whether the  evidence  was  legally
or factually sufficient to support various findings or  conclusions  of  law
entered by the trial court.  We overrule them.
      Regarding findings number 1B, 1C, 4, 5, 6, 7, 8, 10, 11, 12,  13,  14,
15, 16, 17, and 18, the extent of Hartman's argument consists of  conclusory
statements such as 1) there is "insufficient evidence in  the  record  based
upon the testimony and evidence of the  Appellant,"  2)  the  findings  "are
contrary to the evidence," 3)  the  finding  "is  directly  negated  by  the
letter  from  Appellee's  counsel,"  and  4)  "there  is  no   evidence   or
insufficient evidence to support the findings."  In one  instance,  it  also
argues that it "offered evidence that  the  Appellant's  real  property  was
unequally appraised" and followed that comment by citing to pages  14-93  of
the reporter's record.   At another time, it posited  that  "Appellee's  own
evidence justified a reduction in value," and followed that  by  referencing
pages 115 through 116 of the reporter's record.  But nowhere do we find  any
substantive discussion or analysis of the issues.  We have no discussion  as
to why the testimony appearing  on  pages  115-116  of  the  record  somehow
renders inconsequential testimony from the District's expert that the  value
of Hartman's property "currently on the property [rolls] is the  value  that
should be placed there," that value being $6,826,110.
      Additionally, most of the findings attacked are lengthy and  encompass
multiple factual statements.  Some of those  statements  include  references
to topics such as the identity of Hartman's own experts and  the  data  used
in making their respective calculations.  Whether they too are under  attack
by Hartman is unknown given the conclusory nature of  its  briefing.    And,
to the extent  that  the  findings  in  question  may  tend  to  reject  the
relevance or importance  of  the  criteria  used  by  Hartman's  experts  in
calculating values, Hartman makes no attempt  to  explain  why  deeming  the
criteria irrelevant or unimportant was wrong.
      An appellate brief must contain a clear and concise argument  for  the
contentions made, with  appropriate  citation  to  authorities  and  to  the
record.   Tex.  R.  App.  P.  381(h).   Bare  assertions  of  error  without
argument, authority, or citation to  the  record  waive  error.   Denmon  v.
Atlas Leasing, L.L.C., 285  S.W.3d  591,  597  (Tex.  App.-Dallas  2009,  no
pet.).  Hartman's attack upon the  aforementioned  findings  liken  to  bare
assertions.  Thus, its complaints are waived.
      As for the attacks levied upon Conclusions of Law No. 6 ("there is  no
basis in any case law or statute"),  Nos.  9,  10,  and  11  ("there  is  no
evidence or insufficient evidence to support the  'conclusions'  based  upon
the evidence  presented  by  the  Appellant"),  they  too  consist  of  bare
assertions.  Being inadequately briefed, they too are waived.
      Each issue is overruled, and the judgment is affirmed.

                                  Brian Quinn
                                  Chief Justice






