
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-04-00714-CV


State of Texas, Appellant

v.

Chris Petropoulos and Helen C. Petropoulos, Appellees




FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. 2420, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

 
 This appeal arises from a statutory condemnation action filed by the State of Texas
against Chris Petropoulos and Helen C. Petropoulos for a partial taking of their property for use in
a highway project.  The State appeals the judgment awarding the Petropouloses $303,178 as
compensation for the taking.  For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

		At the request of the Texas Transportation Commission, the State in March 2002
brought a condemnation suit to acquire 0.33 of one acre (152,460 square feet) out of a 3.5 acre tract
of land owned by the Petropouloses located on U.S. 290 in Travis County, Texas, for use in a
highway project.  The property is located on the northwest corner of U.S. 290 and Rosson Drive,
near the "Y" in the Oak Hill area in Austin, Texas.  At the time of the taking, the property was vacant
and had an interim zoning designation of rural residential ("RR"). (1)  The property obtained its interim
zoning when the City of Austin annexed the property in the 1980s.  The portion of the property that
the State acquired was a strip along the length of the property's frontage on U.S. 290.
		Special commissioners were appointed and, after a hearing, they awarded $116,080
to the Petropouloses as compensation for the partial taking of their property.  See Tex. Prop. Code
Ann. §§ 21.014-.015 (West 2003).  The State filed objections to the award, deposited the award to
the Petropouloses with the court on November 22, 2002, took possession of the condemned portion
of the property, and the condemnation action proceeded as a civil case.  See id. § 21.018
(West 2003). 
		One week before the jury trial began in July 2004, the State filed a motion to exclude
the expert testimony of Mark Smith, the Petropouloses' designated real estate appraiser.  The State
did not challenge Smith's qualifications, but sought to exclude his testimony on the basis of
relevance and reliability because Smith only appraised the whole property prior to the taking, did not
appraise the portion of the property that the State acquired, did not determine if there was a
diminution in value in the remainder property, did not give an opinion regarding just compensation
due, and valued the property based on a specific use of a car wash combined with an express lube
facility.  At a pre-trial hearing, the trial court denied the State's motion to exclude. (2) 
		The parties' primary dispute at trial was the market value of the whole property as
of the date of the taking, November 22, 2002.  The parties agreed that the property's development
was subject to impervious cover limitations, that sewer services were not available, and that the City
of Austin would approve more intense zoning on the property than RR, but the parties disputed the
zoning that was obtainable, the highest and best use of the property before the taking, and the market
value of the property based on their respective positions as to the highest and best use of the
property.  The Petropouloses contended that the City of Austin would approve zoning of community
commercial ("GR") (3) and that the highest and best use for the property was a car wash combined with
an express lube facility.  The State contended that the City of Austin would approve zoning of
limited office ("LO") (4)
 and that the highest and best use for the property was an office building. 
		The State's witnesses included Greg Guernsey, the manager of the zoning case
management division of the neighborhood planning and zoning department of the City of Austin;
Bobby Jo Cornelius, an architect and owner of a land planning development consulting company;
and Paul Hornsby, a real estate appraiser.  Guernsey testified concerning the property's zoning
designation of RR, (5) that city staff would make a recommendation on an application for a zoning
change to the property, that city staff would look to a study that was done on the Oak Hill area in the
1980s (the "Oak Hill Study") to determine the recommendation for a zoning change, and that the
Oak Hill Study recommended that the property be zoned LO.  Cornelius testified that the highest
zoning for the property was LO.  Hornsby similarly testified that the highest and best use for the
whole property was "[l]imited office, consistent with the LO zoning designation that's set out in the
Oak Hill study.  With B.J. Cornelius help, about a 14,000 square foot building."  Hornsby's
appraised market value for the whole property prior to the taking was $304,920, for the value of the
part to be acquired was $28,750, and for the value of the remainder property both before and after
the taking was $276,170.  He determined that the part taken did not have the "size and shape" to
function as an "independent economic" unit, and he valued the part taken as a "pro rata part" of the
entire tract:  "I treated it just like the whole property and appraised it at $2.00 a square foot."  He also
opined that the highway project did not affect the value of the remainder property and that the total
compensation owed to the Petropouloses was $28,750.
		The Petropouloses' expert witnesses were William T. Carson, a land planner; Sarah
Crocker, a land development consultant; and Mark Smith.  Carson testified to commercial zoning
and development in the area of the property, a range of possible uses for the property without
considering the proposed highway project and pending condemnation, and his opinion that the
"maximum development potential" for the property as of November 2002 was "two similar and
compatible uses, car washes and car lubrication places."  He testified that these uses would comply
with the impervious cover limitations and would be allowed in zoning of GR.  Crocker testified
concerning the impact that the announcement of the highway project in the 1980s has had on
commercial development along U.S. 290 in the area of the property, that the Oak Hill Study was a
"dinosaur" and that it had "no relevance in today's economy or market," the process for applying for
a zoning change with the City of Austin, and that, in her opinion, the zoning that was "reasonably
probable" to obtain on the property was a designation of GR. 
		Smith testified that he relied on the opinions of Crocker and Carson in forming his
opinion as to the value of the whole property before the taking.  His appraised market value of the
whole property was $630,000 as of November 2002.  He also testified that the highway project was
announced and pending "for at least 20 years" and to the effect that the project's "uncertainty" has
had on development along U.S. 290 in the area of the property, but he did not offer an opinion as to
the value of the remainder property after the taking.  The Petropouloses offered and the trial court
admitted the deposition testimony of the State's expert Hornsby that the market value of the
remainder property after the taking was $276,170.
		The jury was asked to determine the fair market value of the whole property,
excluding consideration of the proposed highway project and pending condemnation.  The jury
answered $579,348.  The trial court entered judgment that the total compensation due the
Petropouloses was $303,178, based on the finding of the jury as to the market value of the whole
property and the trial court's finding that the evidence was conclusive that the market value of the
remainder property, immediately after the taking and considering the uses to which the part taken
was to be subjected, was $276,170. (6)  The State filed a motion for new trial which was overruled by
operation of law.  This appeal followed.

ANALYSIS

 In five issues, the State contends that (1) there is no evidence or jury findings to
support compensation for any damages or for compensation in the amount of $303,178; (2) the trial
court erred in submitting a jury question that failed to state a proper legal measure of damages and
in refusing to submit the State's requested questions; (3) the trial court erred in granting a directed
verdict as to the market value of the remainder property; (4) the trial court erred in preventing the
State from telling the jury the effect of its answer on the amount of compensation awarded in a
condemnation case; and (5) the trial court abused its discretion in admitting the testimony of the
Petropouloses' expert Smith because his testimony was not reliable or relevant.

Standard of Review

		The State challenges the legal sufficiency of the evidence to support the judgment.
A legal sufficiency challenge may be sustained when the record discloses one of the following
situations:  

	(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital
fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla;
[or] (d) the evidence establishes conclusively the opposite of the vital fact.


City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert, "No
Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).  In
determining whether a finding is supported by legally sufficient evidence, we view the evidence in
the light most favorable to the finding, "crediting favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not."  Id. at 807.  We indulge every
reasonable inference that would support the finding.  Id. at 822.
		The State further contends that the trial court erred in its charge to the jury and in
admitting expert witness testimony.  Complaints of error in the jury charge and in the admission of
expert witness testimony are reviewed under an abuse of discretion standard.  Larson v. Downing,
197 S.W.3d 303, 304-05 (Tex. 2006) (standard of review for trial court's ruling on admissibility
of expert testimony); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (same);
In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) ("The trial court has considerable discretion to
determine necessary and proper jury instructions.").  A trial court abuses its discretion when it acts
without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).  The trial court has "broad discretion to determine
admissibility" of expert witness testimony, see Helena Chem. Co., 47 S.W.3d at 499, and "in
submitting jury questions so long as the questions submitted fairly place the disputed issues before
the jury."  Toles v. Toles, 45 S.W.3d 252, 263 (Tex. App.--Dallas 2001, pet. denied). 
		To reverse a judgment based on a claimed error in either an evidentiary ruling or in
the jury charge, a party must show that the error probably resulted in the rendition of an improper
judgment.  See Tex. R. App. P. 44.1(a)(1); Tex. R. Evid. 103(a) (error may not be "predicated upon
a ruling which admits or excludes evidence unless a substantial right of the party is affected");
Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (exclusion of evidence);
Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (error in refusing an instruction);
Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 387 (Tex. App.--Austin 2001, pet. denied)
(error in jury charge). 
		The State also contends that the trial court erred in granting a partial directed verdict
for the Petropouloses as to the fair market value of the remainder property and in denying a partial
directed verdict for the State.  A court may instruct a verdict if no evidence of probative force raises
a fact issue on the material questions in the suit.  See Prudential Ins. Co. v. Financial Review Servs.,
Inc., 29 S.W.3d 74, 77 (Tex. 2000); Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649
(Tex. 1994).  A directed verdict is proper for a defendant when a plaintiff fails to present evidence
raising a fact issue essential to the plaintiff's right of recovery or if the plaintiff admits or the
evidence conclusively establishes a defense to the plaintiff's cause of action.  See Prudential Ins.
Co., 29 S.W.3d at 77.  We consider all the evidence in the light most favorable to the party
against whom the verdict was directed, disregarding all contrary evidence and inferences and
giving the party the benefit of all reasonable inferences created by the evidence.  Szczepanik,
883 S.W.2d at 649.  If there is any conflicting evidence of probative value on a theory of recovery,
the directed verdict is improper and the case must be reversed and remanded for jury determination
of that issue.  Id.

Sufficiency of Evidence to Support Condemnation Award

		In its first issue, the State contends there is no evidence or jury findings to support
compensation for any damages or for compensation in the amount of $303,178.  The State does not
contend that the measure of damages that the trial court used was improper, but contends that the
trial court improperly applied the measure so as to enable the Petropouloses to recover for damage
to the remainder property.  The State argues that no compensation should have been awarded for
damage to the remainder property because the only offered evidence was that there was no damage
to the remainder property.  
		In urging that there was no damage to the remainder property, the State relies on (i)
Hornsby's testimony on the State's behalf that the remainder property's highest and best use and the
market value of $276,170 were the same before and after the taking and (ii) the experts' agreement
that there was a larger area of the property that could be developed after the taking.  The State also
relies on the Petropouloses' experts:  Carson's testimony that the use of a car wash combined with
a lube facility was physically possible on the remainder property, (7) Crocker's testimony that the
remainder property could obtain zoning of GR, and Smith's testimony that the use of a car wash
combined with an express lube may be physically possible on the remainder property. 
		Both the United States and the Texas Constitutions require governments to
compensate landowners for the takings of their property for public use.  U.S. Const. amend. V
(requiring "just compensation"); Tex. Const. art. I, § 17 ("adequate compensation").  The central
damages issue in the typical condemnation case is how to measure the market value of the
condemned property.  See City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182
(Tex. 2001).  When a governmental entity condemns only part of a tract of land, adequate
compensation is required for both the part taken and any resulting damage to the remainder property. 
See County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004); see also Tex. Prop. Code Ann.
§ 21.042(c) (West Supp. 2008). (8) 
		In this case, the parties agreed that a proper measure of damages for both the part
taken and any resulting damage to the remainder property was the difference between the market
values of the whole property prior to the taking and the remainder property after the taking giving
consideration to the uses to which the condemned part was to be subjected.  See Westgate, Ltd.
v. State, 843 S.W.2d 448, 456-57 (Tex. 1992) (measure of damages when part taken "does not
constitute a separate economic unit" and condemnation does not increase the value of the remainder
property).  We turn then to a review of the evidence to support the damages award under this
measure of damages and a finding that the remainder property was damaged by the taking. 
		The market value of the remainder property after the taking was not contested.  Both
parties relied on Hornsby's expert opinion that the value of the remainder property was $276,170 or
$2.00 per square foot, considering the use to which the part taken would be subjected.  Hornsby
based his market value estimate on his conclusion that the highest and best use for the remainder
property was an office building.  Smith testified he did not appraise the remainder property "[b]ased
on the information from the client that they were in agreement with the State's appraiser
[Hornsby]--the appraised value of the remainder, or didn't disagree with it, I should say."
		In contrast, the parties contested the market value of the whole property prior to the
taking and the effect that the taking had on the value of the remainder property.  The State's expert
Hornsby opined that the condemnation and pending highway project did not affect the market value
of the property, and he valued the whole property, as he valued the remainder property after the
taking, at $2.00 per square foot to reach a market value of $304,920.  Hornsby opined that the
property could be utilized in the same way regardless of the taking, that there was a larger area of
the property available for development after the taking, and that the highest and best use of the whole
property was as an office building.  He reached his opinion as to the whole property's market value
using the comparable sales approach for appraising real property, comparing four land sales with
adjustments to reach his determination of the whole property's market value. (9) 
		The Petropouloses' expert Smith provided conflicting testimony.  Although he also
used the comparable sales approach for appraising real property, Smith opined that the market value
of the whole property before the taking was $630,000.  He testified that he relied on the opinions of
Carson and Crocker as to obtainable zoning and possible uses of the property and compared land
sales that had intended uses that were physically possible on the property--bank facilities,
restaurants, automotive service facilities, and facilities for express lubes and self-service car washes. 
As to the impact of the pending highway project and taking, Smith testified that the combined use
of a car wash and express lube might physically fit within the remainder property, but he disputed
if the combined use would be financially feasible. (10)  Smith testified that the State "intends to create
a toll way at the Petropoulos property" that "affects the use of the property" and that the
Petropouloses' property was to be a "mid-block" location on the toll road making development of
"impulse retail" not financially feasible. (11) 
		The State contends that affirming the trial court's damage award will have an
enormous impact on all governmental entities with the power of eminent domain because "[i]n every
case where a remainder property is not damaged, but the property owner's opinion of value is greater
than the government's opinion of value, the property owner will effectively recover damages based
on nothing more than the mere difference between the property owner's value of the whole and the
government's value of the remainder."  The State fails to recognize, however, the evidence of
damage to the remainder property from the taking.  A reasonable fact-finder could have credited the
experts' testimony that the property's zoning and development potential affected its market value,
the uncontested testimony as to the market value of the remainder property after the taking based on
a designation of LO use, and the Petropouloses' expert's  testimony as to the obtainable zoning and
highest and best use of the whole property before the taking to conclude that the remainder
property's market value was damaged by the taking.  See City of Keller, 168 S.W.3d at 807. 
		We conclude that the evidence was legally sufficient to support a finding that the
remainder property was damaged by the taking, the jury's finding of $579,348 as to the market value
for the whole property prior to the taking, and compensation in the amount of $303,178.  See id. at
810; see, e.g., Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (jury has "discretion to
award damages within the range of evidence presented at trial").  We overrule the State's first issue. 

Jury Question on Value of Whole Property Prior to the Taking

		In its second issue, the State contends that the trial court erred in submitting a jury
question which failed to state a proper legal measure of damages and in refusing the State's
requested questions.  The State contends that, because there was no evidence of any damage to the
remainder property, the trial court should have partially directed the verdict and submitted the only
disputed fact issue--the value of the part taken--to the jury.  As an initial matter, because we have
concluded that there was evidence of damage to the remainder property from the taking, we conclude
that the trial court did not err in denying the State's motion for a partial directed verdict on the
remainder property's damage from the taking.  Prudential Ins. Co., 29 S.W.3d at 77.  We turn to a
review of the trial court's charge.
		The question that the trial court submitted to the jury was:  "On November 22, 2002,
what was the fair market value of the Petropouloses' entire tract of land, before the taking, excluding
consideration of the proposed project and the pending condemnation?"  The jury was instructed to
answer in dollars and cents and was given definitions for fair market value and highest and
best use. (12)

		One of the State's proposed jury questions requested that the jury be asked to
determine the difference between the value of the whole property before the taking and the remainder
property after the taking:  
 
		From a preponderance of the evidence, what do you find to be the damages,
if any, to Defendant's property, including improvements thereon, as a result of the
acquisition of the 0.33 acres (14,375 square feet) of land as of the date of taking,
November 22, 2002?

		In answering this Question, you are instructed that you shall determine such
damages, if any, by considering the difference between (a) the value of the
landowners' entire tract before the acquisition, excluding any influence of the project
being constructed, and (b) the market value of the remainder after the acquisition,
giving consideration only to the effect of the condemnation on the uses to which the
condemned part is to be put.  


The second part of the measure of damages that the State requested be submitted to the jury--the
value of the remainder property after the taking--was not contested.  Both parties relied on the
State's expert Hornsby's testimony that the value of the remainder property after the taking was
$276,170.  Chris Petropoulos offered Hornsby's deposition testimony to establish the remainder
property's value after the taking, and the State called Hornsby to testify as to the remainder
property's value.
		The only disputed fact then, under the State's proposed question and instruction, was
the value of the whole property before the taking--the fact issue that the trial court submitted to the
jury.  See Tex. R. Civ. P. 278 ("The court shall submit the questions, instructions and definitions . . .
which are raised by the written pleadings and the evidence. . . .  A judgment shall not be reversed
because of the failure to submit other and various phases or different shades of the same question.");
T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992) ("Only disputed issues
must be submitted to the jury."); Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971) ("Submission
of an issue on an undisputed fact is unnecessary."); European Crossroads' Shopping Ctr., Ltd.
v. Criswell, 910 S.W.2d 45, 57 (Tex. App.--Dallas 1995, writ denied) ("When a party conclusively
proves a vital fact or does not contradict a vital fact, its effect is a question of law and there is no
issue for the jury.").  On this record, we cannot conclude that the trial court abused its discretion in
its submitted jury question.  See Toles, 45 S.W.3d at 263.  We overrule the State's second issue.
 
Value of Remainder Property

		In its third issue, the State contends that the trial court erred in partially directing a
verdict on the market value of the remainder property because the value of the remainder property
"standing alone" was not a material issue in the suit.  But, the State agreed that a proper measure of
damages was the difference between the value of the whole property before the taking and the value
of the remainder property after the taking, and both parties relied on the State's expert Hornsby to
establish the remainder property's market value after the taking.  The only disputed fact issue under
this measure of damages was the value of the whole property before the taking.  See T.O. Stanley
Boot Co., 847 S.W.2d at 223; Sullivan, 471 S.W.2d at 44.  We conclude that the trial court did not
err by finding the remainder property's market value as a matter of law.  See Prudential Ins. Co.,
29 S.W.3d at 77. (13)  We overrule the State's third issue.

Effect of Jury's Answer on Ultimate Compensation

		In its fourth issue, the State contends the trial court erred in preventing the State from
telling the jury the effect of its answer on the amount of compensation awarded in a condemnation
case.  The State agrees that a jury normally is not to be told the effect of its answers but argues that,
because "the jury was given an improper charge that submitted to them only half of an issue, it would
have been appropriate for the State to be allowed to explain to the jury the other half of the
equation."  The State argues that the trial court's question "took away from the jury the
determination of just compensation" for the taking.  The State has failed to cite any authority to
support its argument and we have found none.  See Tex. R. Civ. P. 277 (trial court shall not "advise
the jury of the effect of their answers").  We overrule the State's fourth issue.

Expert Testimony

		In its fifth issue, the State contends that the trial court abused its discretion in denying
its pre-trial motion to exclude the expert testimony of Smith because his testimony was not relevant
or reliable and the admission of his testimony was reversible error.  The State does not challenge
Smith's qualifications as a real estate appraiser, but contends that Smith's testimony as to the value
of the whole property was not relevant because the whole property's value was only relevant when
compared to the remainder property's value and it was not relevant to the issue of whether the
remainder property was damaged by the taking.  The State also contends that Smith's testimony was
speculative and not reliable because it was based on the market value of the property for a specific
use, a car wash combined with an express lube facility, and not "the market value in view of any uses
to which it is adapted," and "[n]o buyer has approached the Petropouloses about purchasing the
property for use as a car wash/lube facility."  The State also challenges the reliability of Smith's use
of "price per bay" based on the specific use of a car wash combined with an express lube facility to
reach his opinion that the whole property's market value was $630,000. 
		Texas Rule of Evidence 702 states:  "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise."  Tex. R. Evid. 702.  Rule 702 imposes a
"gatekeeper" obligation on the trial court to ensure relevance and reliability of expert testimony. 
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 722-26 (Tex. 1998). Once the party
opposing expert testimony objects, the proponent bears the burden to demonstrate admissibility. 
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).  The issue then is
whether the Petropouloses met their burden to demonstrate that Smith's testimony was relevant
and reliable.
 
		1.	Relevance
 
		The relevance requirement for the admission of expert testimony "incorporates
traditional relevancy analysis under Texas Rules of Evidence 401 and 402," and is met "if the expert
testimony is 'sufficiently tied to the facts of the case that it will aid the jury in resolving a factual
dispute.'"  Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002) (quoting Robinson,
923 S.W.2d at 556).  Evidence that is relevant is admissible, see Tex. R. Evid. 402, and evidence is
relevant if it has "any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence." 
Tex. R. Evid. 401. 
		The State contends that Smith's testimony of the value of the whole property
"standing alone" was not relevant, but the State does not dispute that a party may rely on an
opponent's witness to support an issue--as the Petropouloses did here.  The Petropouloses offered
the State's expert Hornsby's deposition testimony to establish the value of the remainder property
after the taking.  Smith's testimony as to the whole property prior to the taking, therefore, was not
"standing alone," and was relevant to the only disputed element of the measure of damages.  See
Westgate, 843 S.W.2d at 456-57 (measure of damages when part taken does not constitute separate
economic unit and condemnation does not increase value of remainder property).  Because the
market value of the whole property prior to the taking was a fact of consequence to the determination
of the disputed element of the measure of damages, we conclude that the Petropouloses met their
burden to show that Smith's testimony was relevant.  See Tex. R. Evid. 401, 402; Zwahr, 88 S.W.3d
at 629; Robinson, 923 S.W.2d at 557. 
 
		2.	Reliability

		"The reliability requirement focuses on the principles, research, and methodology
underlying an expert's conclusions."  Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex.
2004).  In reviewing the reliability of an expert's testimony, a court is not to determine whether the
expert's conclusions are correct but "whether the analysis used to reach those conclusions is
reliable."  Zwahr, 88 S.W.3d at 629.   
		The State does not dispute that Smith generally utilized the comparable sales
approach that has been "long favored" by the courts "when determining the market value of real
property."  See Sharboneau, 48 S.W.3d at 182.  The State also does not dispute that Smith's
comparable land sales were voluntary, took place near in time to the condemnation, occurred in the
vicinity of the condemned property, and involved land with similar characteristics.  See id.  The
focus of the State's reliability challenge is Smith's unit of comparison of  "price per bay" and his
utilization of land sales for the specific uses of car wash and express lube facilities.  
		Smith testified that he performed a "highest and best use study" on the whole property
and to the measure for comparing properties, the unit of comparison:  

	As an appraiser, what we do is highest--what we call highest and best use study. 
And that relates to four facets, what is legally permissible being the first, what's
physically possible, the second, what's financially feasible, what use could go on that
site that would make it feasible, a feasible use of that site.  And then out of those
three, out of the uses that are financially feasible, the--you find the use that is
maximally productive to the site.  And that's--that's the use that would provide the
highest return to the land. 

* * *
 
	A unit of comparison has to do with what is the best comparison from--taking from
a sale that indicates what a reasonable buyer and seller--a seller would sell for and
a buyer would pay in an arms-length transaction.  And it could be anywhere from a
price per square foot of just land area.  It could be priced per square foot of a
potential building area.  It could be in--and that would usually be price per square
foot, GBA, gross building area.  It could be price per foot, whatever type use may go
in that.  It could be price per bay.  It could be price per--in this case, we have a car
wash, it could be per wash bay. And what--how does buyers in the marketplace
actually, you know, how do they buy property, and what [ ] price that they pay, how
does that correlate. 

		Smith provided data of comparable sales with a variety of possible uses for the
property.  Excerpts from his report that were admitted as exhibits included data from eighteen land
sales, occurring between 1999 and 2003 with varied intended uses--branch bank, several types of
restaurants, automotive services, express lube, and self-service car wash--that, in his opinion, were
possible for the property.  For each land sale that he compared, his supporting data included the
intended use, the date of the sale, the sales price, the land area in square feet, the building area in
square feet where applicable, the price per square foot based on the land area, and the price per
square foot based on the building area where applicable.  The price per square foot based on the land
area without adjustments for the land sales that he compared ranged from $2.75 to $17.05.  
		Smith testified that he performed a feasibility study on the possible uses for the
property considering such factors as the impervious cover limitations.  Smith testified that the land
that could be developed on the property was not large enough for a branch bank, developing the land
for a restaurant was feasible although the lack of sewer services limited this use on the property, and
using the property for an automotive services facility was feasible but not the best use.  He
concluded, consistent with the opinion of the Petropouloses' expert Carson, that the best use was an
express lube with combination self-service car wash. 
		Smith testified to his reasons for determining that "price per bay" was the best unit
of comparison for the comparable sales with the intended use of a car wash or an express
lube facility:  
 
	[I]t takes out a lot of the uncertainty from the physical attributes or the regulatory
restrictions.  It takes out a lot of those variables because you narrow it down to
what--what the buyer paid for a particular site for a use. . . .  And so by--your unit
of comparison can eliminate a lot of adjustments because it takes out some of the
factors like topography or zoning.  It eliminates some of those adjustments. 


For the two land sales for express lube facilities, the prices per bay for the express lube facilities
without adjustments were $161,667 and $138,333.  For the three land sales for self-service car wash
facilities, the prices per bay were $46,429, $68,750, and $43,833.  Smith opined that the adjusted
price per bay for an express lube facility for the property was $140,000, the adjusted price per bay
for a self-service car wash facility for the property was $45,000, and that the whole property would
support three bays for an express lube facility and five bays for a self-service car wash facility to
reach his estimated market value of $630,000. (14) 
 
		Although the State's experts provided conflicting testimony of the property's highest
and best use as an office building and the property's market value based on four different land sales
with a different unit of comparison, it was for the jury to resolve the conflicting evidence of the
experts to determine the market value of the whole property prior to the taking.  See City of Keller,
168 S.W.3d at 820 ("It is the province of the jury to resolve conflicts in the evidence.").  We
conclude that the Petropouloses met their burden to show that Smith's expert testimony was reliable
and that the trial court did not abuse its discretion in admitting Smith's testimony.  See Zwahr,
88 S.W.3d at 629 (court not to determine whether conclusions are correct); Helena Chem. Co.,
47 S.W.3d at 499 (trial court has broad discretion to determine admissibility of expert testimony);
Robinson, 923 S.W.2d at 557. 
		As part of its fifth issue, the State contends that the trial court abused its discretion
and that it is entitled to a new trial because the Petropouloses did not offer evidence to support that
Smith's testimony was relevant and reliable at the pre-trial hearing on the State's motion to exclude. 
Although neither party offered evidence at the pre-trial hearing and there is no response to the State's
motion to exclude Smith's testimony in the record, it is within a trial court's discretion whether to
hold a pre-trial evidentiary hearing when an expert's testimony has been challenged.  See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999) (trial court has "same kind of latitude in
deciding how to test an expert's reliability, and to decide whether or when special briefing or other
proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert's
relevant testimony is reliable").  Further, in making a preliminary determination on the admissibility
of the expert's testimony, the trial court is "not bound by the rules of evidence except those with
respect to privileges."  See Tex. R. Evid. 104(a). 
		On this record, we cannot conclude that the trial court abused its discretion in
overruling the State's pre-trial motion to exclude Smith's testimony without conducting an
evidentiary hearing. (15)  Smith's qualifications were not challenged, and he generally utilized the "long
favored" comparable sales approach for appraising real property.  See Sharboneau, 48 S.W.3d at
182.  Having concluded that the trial court did not abuse its discretion in admitting Smith's trial
testimony, we also conclude that the State has failed to show that the trial court's pre-trial ruling
denying the State's motion to exclude Smith's testimony affected a "substantial right" of the State. 
See Tex. R. Evid. 103(a); Sharboneau, 48 S.W.3d at 182.  We overrule the State's fifth issue.


CONCLUSION
 
		Having overruled the State's issues, we affirm the judgment of the trial court. 



						__________________________________________

 		Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Henson

Affirmed

Filed:   April 28, 2009
1.   Section 25-2-54 of the Austin Land Development Code reads:  

	Rural residence (RR) district is the designation for a low density residential use on
a lot that is a minimum of one acre.  An RR district designation may be applied to a
use in an area for which rural characteristics are desired or an area whose terrain or
public service capacity require low density.

Austin, Tex., Land Dev. Code § 25-2-54 (2003).
2.   The parties entered into a written stipulation that the trial court heard the State's motion
to exclude the expert testimony of Smith at the pre-trial hearing, the hearing was recorded but the
court reporter was unable to prepare a reporter's record of the hearing because she lost her
stenographic notes, no evidence was offered at the hearing, and the trial court denied the motion to
exclude at the conclusion of the hearing.
3.   Section 25-2-98 of the Austin Land Development Code reads:  

	Community commercial (GR) district is the designation for an office or other
commercial use that serves neighborhood and community needs and that generally
is accessible from major traffic ways.  

Austin, Tex., Land Dev. Code § 25-2-98 (2003).
4.   Section 25-2-94 of the Austin Land Development Code reads:  

	Limited office (LO) district is the designation for an office use that serves
neighborhood or community needs and that is located in or adjacent to residential
neighborhoods.  An office in an LO district may contain one or more different uses. 
Site development regulations and performance standards applicable to an LO district
use are designed to ensure that the use is compatible and complementary in scale and
appearance with the residential environment. 

Austin, Tex., Land Dev. Code § 25-2-94 (2003). 
5.   Guernsey testified:  "RR is a rural residential classification, it has a minimal lot
requirement of 1 acre, it may be used for single-family purposes, some [ ] uses like churches and
schools, but mainly it's a residential classification." 
6.   The award of $303,178 equals $579,348, the jury's finding as to the value of the whole
property before the taking, less $276,170, the trial court's finding as to the value of the remainder
property after the taking.
7.   Carson testified during cross-examination:  

	Q.	So when I say impervious coverage, that means that is the actual square
footage on the property that can be developed on; is that right?

	A.	That can have building and parking, yes.

	Q.	And isn't it true that in the remainder property that there is actually more
property that can be developed on than what you determined for the whole
property?

	A.	That is correct.

	Q.	So the use you showed here, the car wash and lube facility, can you tell the
jurors, is that physically possible on the remainder property?

	A.	Yes, ma'am; it is. 
8.   Section 21.042(c) of the property code reads:  

	If a portion of a tract or parcel of real property is condemned, the special
commissioners shall determine the damage to the property owner after estimating the
extent of the injury and benefit to the property owner, including the effect of the
condemnation on the value of the property owner's remaining property.

Tex. Prop. Code Ann. § 21.042(c) (West Supp. 2008).  "Damages to remainder property are
generally calculated by the difference between the market value of the remainder property
immediately before and after the condemnation, considering the nature of any improvements and the
use of the land taken."  County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004). 
9.   Hornsby determined the unit price per square foot for each of the four sales with
adjustments to reach his opinion that the whole property had a market value of $2.00 per square foot
both before and after the taking.  The unit prices per square foot on the four land sales that he used
to reach his opinion were $3.00, $2.75, $3.30, and $4.50.  He adjusted these unit prices per square
foot based on such factors as market condition, location, and entitlements to reach adjusted values
per square foot of $1.66, $2.20, $2.14, and $1.98.  Based on these amounts, he calculated the
"Estimated Unit Value" of the property to be "$2.00/SF."  He then calculated the whole property's
value prior to the taking:  "3.50 ac (152,460 SF) X $2.00/SF = $304,920."
10.   Smith testified during cross-examination:  

	Q.	And are you aware that Bill Carson testified that the same uses that he drew
in the whole property could also be physically fit on the remainder property?
 
	A.	They may be physically possible.  I'm not sure that they would be accepted
in the marketplace. 
11.   Smith testified:  

	Q.	In your judgment, sir, is it financially feasible to develop impulse retail uses
on a mid-block location on a toll [ ] road?
 
	A.	No, I don't think that's the use that would go on. 
12.   The trial court submitted the following definitions of fair market value and highest and
best use:  
 
	"FAIR MARKET VALUE" is the price the property will bring when offered for sale
by one who desires to sell, but is not obligated to sell, and is bought by one who
desires to buy, but is under no necessity of buying, taking into consideration all of the
uses to which it is reasonably adaptable and for which it either is or in all reasonable
probability will become available within the reasonable future.  In determining the
fair market value, you will consider the highest and best use of the property.

* * *

	"HIGHEST AND BEST USE" means that legal use to which the property could have
been adapted on the date of taking, or within the reasonably foreseeable future
thereafter which was legally permissible, physically possible, financially feasible, and
which would provide the owner with the greatest net return.

The State does not challenge these definitions.
13.   The State concedes in its brief that "it is true that the only evidence offered regarding the
remainder property was that it had a value of $276,170." 
14.   He calculated the estimated fair market value as follows:  

	Express Lube Facility			3 Bays @ $140,000 per Bay = $420,000
	Self-Service Car Wash Facility	5 Bays @   $45,000 per Bay = $225,000
	Estimated Market Value						 $645,000
	Less:  Cost for Subdivision/Zoning					 ($15,000)
	Estimated Market Value-Before the Taking-As Is Condition	 $630,000
15.   The State cites State of Texas v. Harrison, No. 06-98-00007-CV, 1998 Tex. App. LEXIS
7668 (Tex. App.--Texarkana 1998, no pet.) (mem. op., not designated for publication), to support
its argument that the trial court abused its discretion at the pre-trial hearing.  We find that case
distinguishable.  Our sister court found that the trial court abused its discretion in denying the State's
motion to exclude the property owners' expert because the property owners did not present any
evidence to prove relevance and reliability at the "gate keeper" hearing.  See id. at *7.  In contrast
to the procedural posture of this case, in Harrison, the trial court held an evidentiary hearing, the
State attached its own expert's opinions to its motion to exclude, and the State's expert testified at
the hearing.  See id. at *3-5.    
