Pre-Trial Motions: Persuasion, Positioning, and Preservation of Error Clint Schumacher, Locke Lord, LLP Eric Hansen, Locke Lord LLP
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Pre-Trial Motions: Persuasion, Positioning, and Preservation of Error
Clint Schumacher, Locke Lord, LLP
Eric Hansen, Locke Lord LLP
INTRODUCTION
Pre-trial motions in condemnation matters are vitally important to your ultimate success
at trial or achieving a favorable settlement. They can help set the tone of a case and offer an
invaluable opportunity to begin persuading the judge before trial begins. Pre-trial motions also
determine the evidence that the finder of fact will hear. Pre-trial motions may also be necessary
to preserve error for appellate review. In short, every party to a condemnation matter should
carefully consider which pre-trial motions should be asserted, and how those motions will affect
their respective case.
This paper will address some of the common and important pre-trial motions that may be
asserted in a condemnation proceeding, and how they can be used to persuade the judge, position
the case, and preserve error. Specifically, this paper will discuss the following pretrial motions:
(1) motions to exclude or limit expert testimony, (2) jurisdictional motions regarding the right to
take, (3) motions to limit the evidence regarding project design, (4) special exceptions regarding
access, (5) jurisdictional pleas based on immunity, (6) summary judgment motions on material
and substantial denial of access, (7) motions to establish the date of project influence, and (8) a
motion to establish the right to open and close.
A. Motions to Exclude or Limit Expert Testimony
Rule 702 of the Texas Rules of Evidence permits a witness, qualified as an expert by
knowledge, skill, experience, training, or education, to testify on scientific, technical, or other
specialized subjects if the testimony would assist the trier of fact in understanding the evidence
or determining a fact issue. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 727 (Tex.
1998). Admissibility requires that (1) the witness is qualified, (2) the testimony is relevant, (3)
the testimony is reliable, and (4) the testimony does not violate Rule 403.1 E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex. 1995). As noted in Gammill, the
relevance and reliability requirements from Robinson apply to all evidence offered ender Rule
702, not just scientific testimony. Gammill, 972 S.W.2d at 727. Thus, the Robinson factors
apply to many of the key witnesses in condemnation matters, including: appraisers, land
planners, engineers, real estate developers, and real estate brokers.
1
A trial court may consider many factors in making the threshold determination of admissibility under Texas
Rule of Evidence 701. These factors include, but are not limited to (1) the extent to which the theory has been or
can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3)
whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific
community; and (6) the non-judicial uses which have been made of the theory or technique. Gammill, 972 S.W.2d
at 720.
1|Page1. Appraisers
Appraisal expertise is a form of “‘specialized knowledge [used to] assist the trier of fact
to determine a fact in issue.’” Guadalupe–Blanco River Authority v. Kraft, 77 S.W.3d 805, 807
(Tex. 2002) (citing TEX. R. EVID. 702)); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 630 (Tex.
2002). As with all other experts, once a party makes an objection to the opposing party’s expert
appraiser, the burden is on the party proffering the expert testimony to prove that the appraiser’s
testimony meets the relevance and reliability factors set forth in Robinson. Kraft, 77 S.W.3d at
807.
When considering a motion to exclude or limit the testimony of an appraiser, it is helpful
to consider: (1) did the expert rely on competent underlying data,2 (2) did the expert
impermissibly rely on non-compensable elements,3 and (3) did the expert properly consider the
proper highest and best use of the property.4 In addition, while an appraiser does not need to be
licensed or certified to testify as an expert in a condemnation case, a court will naturally harbor
some doubt as to whether an unlicensed appraiser is qualified to give an opinion on the value of
real property in a condemnation proceeding. See Trend Gathering & Treating, LP v. Moore, No.
10-10-00136-CV, 2012 WL 4983488 at *2 (Tex. App.—Waco Dec. 1, 2010, no pet.) (mem. op.)
(citing State v. Northborough Center, Inc., 987 S.W.2d 187, 194 (Tex. App.—Houston [14th
Dist.] 1999, pet. denied)).
2. Other Experts
Aside from appraisers, a condemnation suit may also involve other experts such as land
planners,5 engineers,6 and real estate brokers.7 Each of these experts are subject to the Robinson
factors. See Gammill, 972 S.W.2d at 727.
2
In Kraft, the court held that the appraiser relied on sales that were not comparable to the condemned easement.
Kraft, 77 S.W.3d at 808. Instead of determining the fair market value of the easement actually taken, the appraiser
in Kraft selected sales comparable to a hypothetical easement which had markedly different characteristics. Id.
Thus, the court properly excluded the expert’s testimony. Id.
3
In Zwahr, the condemnor objected to the condemnee’s expert because he relied on project enhancement to
calculate the value of the land after the taking. Zwahr, 88 S.W.3d at 625. The court properly excluded the expert’s
testimony because under Texas law, any change in value of the land due to the condemnation is not compensable.
Id.
4
In WesTTex 66 Pipeline Co. v. Bulanek, the appraiser used the effects of the condemnation itself to determine
the highest and best use of the land, thus, his testimony was excluded. 213 S.W.3d 353, 357-58 (Tex. App.–Houston
[1st Dist.], 2003 no pet.).
5
In State v. Northborough Center, Inc., the State of Texas claimed the trial court erred in admitting the
testimony of a certified land planner because he was not a licensed engineer, architect, or landscape architect. 987
S.W.2d 187, 193 (Tex. App.—Houston [14th Dist.] 1999), pet. denied). However, the court noted that there are no
definitive guidelines for determining whether a witness’s education, experience, skill, or training qualifies him as an
expert. Id. (citing America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 918 (Tex. App.—El Paso 1996, no writ)).
Because the land planner had years of knowledge, education and professional experience in land planning, he was
qualified to testify as an expert. Id. at 194.
2|Page3. The “Property Owner” Rule
Consideration must be given to a pre-trial motion to exclude the testimony of a
landowner. Under the Property Owner Rule, landowners may typically offer testimony as to the
value of their property. See Porras v. Craig, 675 S.W.2d 503, 504-505 (Tex. 1984). The
Property Owner Rule is based on the premise that property owners ordinarily know the market
value of their property and therefore have a sound basis for testifying as to its value. Id. The
Property Owner Rule also applies to legal entities or businesses; organizations are treated “the
same as natural persons for purposes of the Property Owner Rule.” Preston Reserve, L.L.C. v.
Compass Bank, 373 S.W.3d 652, 659 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (quoting
Reid Road Municipal Util. Dist. v. Speedy Stop Food Stores, 337 S.W.3d 846, 849 (Tex. 2011)).
However, the Property Owner Rule falls within the ambit of Texas Rule of Evidence 701 and
therefore does not relieve the owner of the requirement that a witness must be personally familiar
with the property and its fair market value. Id. Thus, with respect to corporate entities, “the
Property Owner Rule is limited to those witnesses who are officers of the entity in managerial
positions with duties related to the property, or employees of the entity with substantially
equivalent positions and duties.” Id.8
Consideration must also be given to the notion that the Property Owner Rule is limited to
testimony of the market value of the owner’s own property. For example, a landowner cannot
testify as to the value of other property. Mansion in the Forest, L.P. v. Montgomery County, No.
09-09-00524-CV, 2012 WL 3850691, at *2 (Tex. App.—Beaumont 2012, no pet.) (emphasis
added) (citing Speedy Stop, 337 S.W.3d at 849)). In addition, a land owner cannot testify as to
the intrinsic value of the property, or replacement cost. Collin County v. Hixon Family P’ship,
365 S.W.3d 860, 877 n.7 (Tex. App.—Dallas 2012, no pet.).
4. Limiting Testimony in Addition to Complete Exclusion
In addition to moving to exclude the opposing expert entirely, condemnation parties
should determine whether they should move for partial exclusion or limitation on the expert’s
testimony. For example, landowners are qualified to testify as experts with respect to the fair
market value of their land, but not the intrinsic value of the land. Id. There may be other
situations where it is not appropriate or strategic to seek complete exclusion of an expert, but
exclusion of a portion of their opinions or testimony could be sought.
6
Hubbard v. Harris County Flood Control Dist., 286 S.W.2d 285 (Tex. Civ. App.—Galveston 1956, writ ref’d
n.r.e.) (holding that witness’ training and experience as a civil engineer rendered him competent to testify regarding
erosion and foundation problems).
7
Natural Gas Pipeline Co. of America v. Towler, 396 S.W.2d 917, 918-19 (Tex. Civ. App.—Corpus Christi
1965, no writ).
8
There is authority holding that a property owner can testify as to value even if not disclosed as an expert.
Southwest Pipe Services, Inc. v. Kinder Morgan, Inc., 2010 WL 2649950 (Tex.App.—Houston[14th Dist.] 2010, no
pet.) (not reported). This seems unduly risky, however.
3|Page5. Preservation of Error
Generally, if a party seeks to complain on appeal about the admission of expert
testimony, it has an obligation to object to the evidence either before trial or when the evidence is
offered. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). While not always
mandatory, challenges to experts should be made as early as possible. See David F. Johnson,
Preservation of Error and Standards of Review Regarding the Admission or Exclusion of Expert
Testimony in Texas, 48 S. TEX. L. REV. 60 (2006). A ruling on a pre-trial hearing9 is sufficient to
preserve error in the admission or exclusion of expert testimony. KMG Kanal-Muller-Gruppe
Deutschland GMBH & Co. v. Davis, 175 S.W.3d 379, 389-90 (Tex. App.—Houston [1st Dist.]
2005, no pet. h.); Doyle Wilson Homebuilder, Inc. v. Pickens, 996 S.W.2d 387, 393 (Tex. App.—
Austin 1999, pet. dism’d by agr.). However, if a party decides to rest on the “laurels” of its pre-
trial motion, the party should ensure that all objectionable bases of the testimony were asserted in
the motion. For example, in Nissan Motor Co. v. Armstrong, a party waived an objection to the
expert’s qualification when it failed to object at trial, and when the pre-trial motion only
addressed reliability. 145 S.W.3d 131, 143-44 (Tex. 2004).
In most cases, a pre-trial Daubert motion is not required to preserve error. For example,
a party may object to the admissibility during trial when the grounds are reasonably apparent.
Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 471 (Tex. 2005) (holding that a party could
preserve error by objecting to expert testimony after cross examination). However, when the
court has entered a scheduling order and has set a deadline for the parties to object to expert
testimony, some uncertainty exists as to whether a party will waiver error by failing to comply
with the scheduling order. See David F. Johnson, Preservation of Error and Standards of
Review Regarding the Admission or Exclusion of Expert Testimony in Texas, 48 S. TEX. L. REV.
62-63 (2006).
In most instances, failure to object to the admissibility of an expert’s testimony either
before or during trial will result in a waiver of that argument on appeal. However, even if a party
failed to preserve error, the party may still attack expert testimony on appeal by means of a legal
sufficiency challenge of the evidence. See Coastal Transp. Co. v. Crown Cet. Petroleum Corp.,
136 S.W.2d 227, 233 (Tex. 2004). Thus, a party who failed to preserve error may argue that the
expert testimony is no evidence to support the jury finding.10 Id. The Texas Supreme Court has
said that this exception to error preservation “frequently applies to expert testimony.” City of
9
It must be noted that a motion in limine is fundamentally different than a motion to strike/exclude. A party will
not preserve error regarding the admission of expert testimony when the only objection to that testimony is raised in
a motion in limine. Calsaro 10000 Old Katy Ltd. v. State, No. 01-08-00776-CV, 2010 WL 1948315, at *5 (Tex.
App.—Houston [14th Dist] May 13, 2010, no pet.) (citing Pojar v. Cifre, 199 S.W.3d 317, 339 (Tex. App.—Corpus
Christi 2006, pet. denied)).
10
Of course, to urge that the expert’s testimony is no-evidence on appeal, a party must preserve a legal or factual
sufficiency challenge. In a bench trial, a party can raise a legal or factual sufficiency challenge for the first time
after trial. TEX. R. APP. P. 33.1(d). In a jury trial, however, a party must preserve the challenge in one of four ways:
(1) a motion for directed verdict, (2) by objecting to a submission in the jury charge, (3) in a motion to disregard the
jury’s answer, or (4) in a motion for judgment notwithstanding the evidence. See Aero Energy, Inc. v. Circle C
Drilling Co., 669 S.W.2d 821-23 (Tex. 1985).
4|PageKeller v. Wilson, 168 S.W.3d 802, 812-813 (Tex. 2005). Expert evidence that fails to meet
reliability standards is not only inadmissible, but incompetent as well. Id. at 813.
B. Jurisdictional Motions Regarding the Right to Take
As soon as a condemning authority commences a condemnation proceeding, a landowner
should consider whether to challenge, via a plea to the jurisdiction, the statutory and/or
constitutional prerequisites to initiating that proceeding. For example, a landowner should
consider whether: (1) the condemnor engaged in good faith negotiations,11 (2) the condemnor's
governing body approved the use of condemnation power and made a finding that the property is
necessary for the project,12 (3) other statutory prerequisites have been followed,13 and (4)
whether the condemnor has the power of eminent domain.14 A landowner must consider whether
to assert these motions prior to appearing at the special commissioners’ hearing, because doing
so may waive certain arguments. For example, participation in the commissioners’ hearing
constitutes a waiver of at least the issue of whether the condemnor negotiated in good faith.
Hubenak, 141 S.W.3d at 181 (citing Jones v. City of Meneola, 203 S.W.2d 1020, 1023 (Tex. Civ.
App.—Texarkana, 1947, writ ref’d)). In addition, at least one court has held that “[w]hen
property owners appear at the special commissioners’ hearing and participate in
the condemnation proceeding on the merits, they waive any complaints regarding pre-litigation
matters including the failure of the State to make a bona fide offer or the inability of the parties
to agree on damages.” Id. (citing Menola, 203 S.W.2d at 1022-23).
A landowner will also need to consider whether to withdraw the commissioners’ award
after the commissioners’ hearing because doing so may also constitute a waiver of a
“jurisdictional” challenge. Generally, by accepting the award of the special commissioners, the
landowner is precluded from contesting the right to take the property. State v. Jackson, 388
S.W.2d 924, 925 (Tex. 1965). As another court stated, “[w]hen, as here, the amount of the
special commissioners’ award deposited by the condemnor into the registry of the court is
withdrawn by the condemnee, the [only] issue for litigation is adequate compensation.” Collin
County v. Hixon Family P’ship, Ltd., 365 S.W.3d 860, 867 (Tex. App.—Dallas 2012, pet
denied). However, an exception to this rule exists when the funds are withdrawn to pay taxes
owing on the property, particularly when the motion to withdraw the funds is filed by the taxing
authority. In this circumstance, the withdrawal will not be deemed a waiver. Harris County.
11
In 2004, the Texas Supreme Court declared that a condemnor fulfilled his obligation to negotiate in “good faith”
by merely making an offer to the landowner to purchase his property. Hubenak v. San Jacinto Gas Transmission
Co., 141 S.W.3d 172, 185 (Tex. 2004). However, effective September 2011, Senate Bill 18 amended the procedural
requirements for a petition to condemn. Now, Texas Property Code § 21.012 requires that the petition state the
condemnor has made a “bona fide offer” for the property. The “bona fide offer” must comply with a newly added
section – Section 21.0113.
12
See e.g., Whittington v. City of Austin, 174 S.W.3d 889, 898-99 (Tex. App.—Austin 2005, pet. denied); Laird
Hill Salt Water Disposal, Ltd. v. E. Tex. Salt Water Disposal, Inc., 351 S.W.3d 81, 87-90 (Tex. App.—Tyler 2011,
no pet.).
13
See TEX. PROP. CODE § 21.012.
14
See e.g., Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192 (Tex. 2012).
5|PageHosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 309-310 (Tex. App.—Houston [14th Dist.]
2008, no pet.).
Throughout this section, this paper has referred to pre-trial motions associated with the
State’s prerequisites to condemning a property as “jurisdictional” challenges. However, the term
jurisdictional may be a bit misleading due to the Texas Supreme Court’s ruling in Hubenak. In
Hubenak, the court held that the requirements under Texas Property Code § 21.012 are
mandatory, but not jurisdictional. Hubenak, 141 S.W.3d at 183-84. However, it is unclear
whether this holding applies to all of the statutory requirements, or only to “some” of them. See
Whittington, 174 S.W.3d at 896 (“Although these requirements [of Section 21.012] have
sometimes been characterized as jurisdictional, the supreme court recently held that at least some
of them are not.”). What is clear under Hubenak is that a landowner can waive his right to
challenge whether the condemnor had negotiated in good faith prior to commencing the
condemnation action. Hubenak, 141 S.W.3d at 183-84. The Court even seemed to indicate that
all pre-suit requirements of condemnation actions could be waived by the landowner’s failure to
timely raise a challenge. Id. To muddy the waters further, Senate Bill 18 gave greater protection
to landowners, including the duty on the condemnor to make a bona fide offer for the property
before instituting condemnation proceedings. To date, it does not appear that any case has
analyzed the effect of Senate Bill 18 on the pre-suit requirements of a condemnor and whether
such requirements are again jurisdictional. Until further discussion by courts, it would appear
that, according to Hubanek, the requirement that the condemnor make a bona fide offer, and
potentially all other statutory requirements with the exception of the petition containing an
adequate description of the property, are still “mandatory” but not “jurisdictional.” This ruling is
important because, if the prerequisites to condemnation are in fact jurisdictional, a party could
raise them for the first time on appeal.
C. Motions to Limit Evidence Regarding Project Design
Through the condemnation proceeding, a landowner is given a “single opportunity” to
recover all “reasonably foreseeable consequential damages” from the taking. State v. McCarley,
247 S.W.3d 323, 326 (Tex. App.—Austin 2007, pet. denied). “The presumption is that the State
will exercise its rights and use and enjoy the property taken to the full legal extent.” Creighton v.
State, 366 S.W.2d 840, 843 (Tex. Civ. App.—Eastland 1963, writ ref’d n.r.e.). Absent a formal
agreement between the condemnor and the landowner, the condemnor is not required to adhere
to “promissory statements” of project design which purport to limit the effect of the condemnor’s
taking. See State v. Harrell Ranch, Ltd., 268 S.W.3d 247, 254 (Tex. App.—Austin 2008, no
pet.) (evidence of State’s policy of enabling access to adjacent property owners during
construction, and evidence that such access would be granted to the landowner at issue, did not
“alter or undermine the State’s ability to have denied such access at any time it so desired”); see
also State v. Frost, 456 S.W.2d 245, 254-55 (Tex. Civ. App.—Houston [14th Dist.] 1970, writ
ref’d n.r.e.) (promissory statements of landowner's permitted access can be revoked at the
pleasure of the condemnor). Accordingly, the condemnor should not be able to introduce
evidence that foreseeable damages will be mitigated by the condemnor’s plans or designs, when
the condemnor is not required to adhere to such plans or designs. In such a case, a landowner
should file a pre-trial motion to limit the evidence a condemnor can introduce regarding the
design of the project that is the subject of the condemnation proceeding.
6|PageIf a party files a pretrial motion in limine to exclude such evidence, and the motion is
denied, a party must still object to the evidence when it’s offered at trial in order to preserve
error for appeal. Sims v. State, 816 S.W.2d 502, 504 (Tex. App.—Houston [1st Dist.] 1991, writ
denied) (citing Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963)). In
some instances, the denial of a pretrial motion to exclude evidence will be sufficient to preserve
error, without an accompanying objection at trial. See Huckaby v. A.G. Perry & Son, Inc., 20
S.W.3d 194, 203-04 (Tex. App.—Texarkana 2000, pet. denied). In order for a motion to exclude
evidence of project design to operate as a running objection to all types of evidence of project
design, the motion must comply with Texas Rule of Appellate Procedure 33.1(a) and clearly
identify the source and subject matter of the expected objectionable evidence prior to its
disclosure to the jury. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). It
would also be advisable to request that the court recognize a party has submitted a “running
objection” to such evidence. See id. In all instances, the safest course of action to preserve error
on the erroneous admission of evidence is to timely object at trial when such evidence is offered.
See Austin v. Weems, 337 S.W.3d 415, 421 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“[A]ny error in the admission of evidence is waived if the objecting party subsequently permits
the same or similar evidence to be introduced without objection.”).
D. Special Exceptions Regarding Access
In a condemnation case where construction impairs access to a landowner’s property, it is
important for the landowner to have notice of the nature and extent of the impaired access.
When a condemnation petition fails to notify the landowner of the nature and extent of the access
he will enjoy during construction, he should file a special exception requiring the condemnor to
plead such facts with specificity.
A special exception seeks to require the plaintiff to plead his claim more specifically.
TEX. R. CIV. P. 90-91; Subia v. Tex. Dep’t of Human Servs., 750 S.W.2d 827, 829 (Tex. App.—
El Paso 1988, no writ). “The purpose of special exceptions is to force clarification and
specification in the pleadings, when they are not clear or sufficiently specific.” Patillo v. City of
San Antonio, 161 S.W.3d 608, 611 (Tex. App.—San Antonio 2005, no pet.). Furthermore, any
defect in pleadings not specifically pointed out by an exception is deemed waived. TEX. R. CIV.
P. 90.
The condemnation petition “serves as notice to the landowner of the damages to which he
may be entitled.” Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 601
(Tex. 1979). A landowner may recover damages for impaired access if his access rights have
been “substantially and materially impaired by the taking.” Dall. Cnty. v. Crestview Corners
Car Wash, 370 S.W.3d 25, 45 (Tex. App.—Dallas 2012, no pet.) (citing State v. Heal, 917
S.W.2d 6, 9 (Tex. 1996)). Damages are recoverable only for “total temporary” restrictions of
access, “partial permanent” restrictions, or “partial temporary” restrictions due to illegal or
negligent activity. Crestview, 370 S.W.3d at 45. Restrictions on access resulting only in
increased circuity of travel are not compensable. Milwee-Jackson Joint Venture v. Dall. Area
Rapid Transit, 350 S.W.3d 772, 780 (Tex. App.—Dallas 2011, no pet.). Normal inconveniences
inherent in construction activities are not compensable. Id. at 47 n.19 (citing to several cases
affirming this principle). Even occasional blockage of access to property by construction
equipment, vehicles, or dirt has been held noncompensable. Id.
7|PageAccordingly, for a landowner to have notice of the damages to which he is entitled, the
condemnation petition should sufficiently allege the nature and extent of access the landowner
will enjoy throughout construction.
E. Jurisdictional Pleas Based on Immunity
A party may challenge a court’s subject matter jurisdiction over a particular claim
through a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
225-26 (Tex. 2004). Although the questions of whether a court has subject matter jurisdiction
and whether a claimant has alleged facts sufficient to demonstrate such jurisdiction are questions
of law, “in some cases, disputed evidence of jurisdictional facts that also implicate the merits of
the case may require resolution by the finder of fact.” Id. at 226. In the eminent domain context,
if a claimant has not sufficiently pled a claim for inverse condemnation, then the government
will have a “valid immunity defense [that] defeats the trial court’s subject-matter jurisdiction.”
City of Dall. v. Zetterlund, 261 S.W.3d 824, 827 (Tex. App.—Dallas 2008, no pet.).
If the plea to the jurisdiction challenges the sufficiency of the claimant’s pleadings, the
court will construe the pleadings liberally in the claimant’s favor. Id. at 828. The court will
deny the plea if the alleged facts in the pleadings affirmatively demonstrate jurisdiction to hear
the case. Id. If the pleadings affirmatively negate the existence of jurisdiction, then the plea will
be granted. Miranda, 133 S.W.3d at 227. If the pleadings are insufficient, but do not
affirmatively negate jurisdiction, a court will allow the plaintiff an opportunity to cure the defect
through amendment. Id. at 226-27.
If the plea to the jurisdiction challenges the existence of jurisdictional facts, the court
must consider relevant evidence submitted by the parties. Id. at 227. In such a case, the court
exercises discretion in deciding whether the jurisdictional determination should be made at a
preliminary hearing or await fuller development of the case. Id. However, this determination
must be made “as soon as practicable.” Id.
When the plea challenges the existence of jurisdictional facts, the standard for the court
in reviewing the evidence relevant to the jurisdictional determination mirrors that of summary
judgment. Id. at 228; Zetterlund, 261 S.W.3d at 828. If the evidence creates a fact question
regarding jurisdiction, then the court cannot grant the plea, and the issue must be resolved by the
fact-finder. Miranda, 133 S.W.3d at 227-28. If the relevant evidence is undisputed or fails to
raise a fact issue, then the court grants the plea as a matter of law. Id. at 228.
Because subject-matter jurisdiction is “essential for a court to have authority to decide a
case,” it cannot be waived. City of Hous. v. Guthrie, 332 S.W.3d 578, 586 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). Accordingly, a plea to the jurisdiction challenging the court’s
subject-matter jurisdiction may be raised at any time. Id.
8|PageF. Summary Judgment Motions on Material and Substantial Denial of Access
In Texas, it is well settled that a property owner may be compensated for the diminution
of property value resulting from a loss of access. DuPuy v. City of Waco, 396 S.W.2d 103, 108
(Tex. 1965). However, the access to the property must be materially and substantially impaired,
even though there has not been a deprivation of all reasonable access. City of Waco v. Texland
Corp., 446 S.W.2d 1, 3 (Tex. 1969). The determination of whether there has been a material and
substantial impairment of access should be made before trial. State v. Wood Oil Distrib., Inc.,
751 S.W.2d 863, 865 (Tex. 1988). The summary judgment vehicle is an effective way to do that
(although not the sole vehicle). A practitioner might also consider combining a motion
establishing a material and substantial denial of access with a motion limiting the State’s
evidence of future project design.
G. Summary Judgment on Project Influence
Texas law provides that the factfinder may not consider any enhancement to the value of
the landowner’s property that results from the project for which the property is being taken. E.g,
Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 627-28 (Tex. 2002). Project enhancement is to be
cut off on the date that the condemnor “manifests a definite purpose to take the subject
property.” E.g., City of Fort Worth v. Corbin, 504 S.W.2d 828, 831 (Tex. 1974). Thus, parties
to a condemnation case should consider filing a motion to establish the date of project influence,
thus precluding evidence of enhancement to the value of the property after that date. Although
the case law is less clear, the same rule should apply to project blight. If an impending project is
driving down property values or rents, any such impact in the marketplace should be cut off on
the date the condemnor manifests a definite purpose to take the subject property.
H. Motion to Open and Close
Prior to trial, a landowner should file a motion to open and close. Under Texas law, a
defendant has the right to make the first opening statement and put on evidence first, if it has the
burden of proof for the entire case under the pleadings. TEX. R. CIV. P. 265; TEX. R. CIV. P. 266
("the plaintiff shall have the right to open and conclude in adducing his evidence and in the
argument, unless the burden of proof on the whole case under the pleadings rests upon the
defendant"); TEX. R. CIV. P. 269 (the "party having the burden of proof . . . shall be entitled to
open and conclude the argument"); see also 4M Linen & Uniform Sup. Co. v. W.P. Ballard &
Co., 793 S.W.2d 320, 324 (Tex.App.—Houston [1st Dist.] 1990, writ denied); Phillips v.
Southwestern Bell Tel. Co., 559 S.W.2d 464 (Tex. Civ. App.—Houston [14th Dist.] 1977, no
writ) (stating that in "a condemnation proceeding, where the only questions submitted relate to
market value and damages, the condemnee has the right to open and close the jury argument").
CONCLUSION
Pre-trial motions are vital in a condemnation proceeding because they will help position
the case, begin to persuade the judge, and in some circumstances, will preserve error for review.
Therefore, the parties in a condemnation proceeding should take extra care in consideration of
which pretrial motions to file, and how to properly preserve error.
9|PageClint Schumacher
Partner
Clint Schumacher is a forceful advocate for his clients when eminent domain or condemnation
threatens their property. He has deep and varied experience in representing clients who need
advice and counsel when private property is taken for public use. Clint’s varied client list
includes Fortune 500 companies; Wall Street investment firms; individual investors, developers,
and property owners; a regional tollway authority; and multi-national and local pipeline
companies.
He has worked with governmental agencies to seek modifications of public projects to eliminate
potential negative impacts of the projects before final plans are drawn and property acquisition
starts. Clint consults with property owners on how to proceed when property is under the
shadow of an anticipated taking, and he monitors significant developments in projects as they
proceed from the planning, design, and right of way acquisition stages. Clint leads the team of
Firm attorneys who can visualize the various impacts that a project may cause to a property.
Additionally, Clint works with a team of very experienced appraisers, land planners, engineers,
and real estate development experts who can help advise a property owner through the
condemnation process.
When a condemnation case goes to trial, Clint is adept at guiding his client through the process,
monitoring the reaction of the jury, and standing firm in the face of pressure from the
government in the courtroom.
Clint is a popular speaker on the topic of eminent domain. He is often called upon to speak on
the subject to industry professionals and other lawyers around the country.
Representative Experience
Obtained jury verdict for client in a condemnation case for Fortune 500 company against the
State of Texas.
Obtained jury verdict for client in a condemnation case for individual property owner against
the State of Texas.
Obtained settlement for client in a condemnation case for family trust against the State of
Texas.
Obtained settlement for Wall Street investment firm against the State of Texas in a
condemnation case.
Obtained over 200 parcels for tollroad authority on schedule and under budget.
Reported Decisions
Coe v. Chesapeake Exploration & Production, LLC, --- F.3d ---, 2012 WL 3966722 (5th Cir.
2012)
State of Texas v. State Street Bank and Trust Company and Brinker International Payroll
Company, L.P., CC- 05-10-00306-CV, (Tex.App.--Dallas 2012)
10 | P a g e Allodial Limited Partnership v. North Texas Tollway Authority, 176 S.W.3d 680 (Tex.App.--
Dallas 2005, pet. denied)
Dallas Sales Company v. Carlisle Silver Company, Inc , 134 S.W.3d 928 (Tex.App.--Waco
2004, pet. denied)
Compass Exploration, Inc. v. B-E Drilling Company, 60 S.W.3d 2273 (Tex.App.--Waco 2001,
no pet.)
Professional History
Partner, Locke Lord LLP
Intern, Supreme Court of Texas (1997)
Professional Affiliations and Awards
Member, State Bar of Texas
Member, Dallas Bar Association
Member, Dallas Young Lawyers Association
Named, Rising Star by Texas Lawyer magazine (2011)
Member, International Right-of-Way Association
Publications & Presentations
Presenter, "Use of Voir Dire in the Eminent Domain Case," CLE International Eminent
Domain Seminar (2011)
Quoted, "Convention hotel has a sliver of a real estate problem," WFAA.com (June 14,
2011)
Presenter, “The Business of Law,” Washington University School of Law Intersession
Lectures (2008-2011)
Presenter, “Avoiding Ten Common Mistakes,” CLE International Eminent Domain Seminar
(2010)
Presenter, “Communicating to a Sound Bite Society,” Center for American and International
Law Planning, Zoning, and Eminent Domain Seminar (2009)
Presenter, “Presenting Your Case with Demonstrative Evidence,” Center for American and
International Law Planning, Zoning, and Eminent Domain Seminar (2008)
Presenter, “The Brave New World of Eminent Domain After New London v. Kelo,” Dallas
Council of Real Estate Women (2006)
Co-Author with Mike Moore, “The Duty to Disclose in Settlement Negotiations,” Settlement
Agreements in Disputes, Chapter 3
Community Involvement
Member and Teacher, Farmers Branch Church of Christ
Member, The Gladney Center, Dallas Auxiliary
Youth sports coach
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