Board of County Commissioners of County of Weld v. DPG Farms, LLC , 2017 COA 83 ( 2017 )

COLORADO COURT OF APPEALS 2017COA83
Court of Appeals No. 15CA1951
Weld County District Court No. 14CV30182
Honorable Julie C. Hoskins, Judge
Board of County Commissioners of the County of Weld, a political subdivision
of the State of Colorado,
Petitioner-Appellee,
v.
DPG Farms, LLC,
Respondent-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division II
Opinion by JUDGE HARRIS
Dailey and Márquez*, JJ., concur
Announced June 15, 2017
Bruce Barker, County Attorney, Bob Choate, Assistant County Attorney,
Greeley, Colorado; Hamre, Rodriguez, Ostrander & Dingess, P.C., Donald M.
Ostrander, Joel M. Spector, Denver, Colorado, for Petitioner-Appellee
Robinson Waters & O’Dorisio, P.C., Richard D. Judd, Brian A. Magoon, Jena R.
Akin, Denver, Colorado, for Respondent-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In this condemnation action, respondent, DPG Farms, LLC
(DPG), appeals from a judgment entered on a jury verdict after a
valuation trial. The issue on appeal concerns the proper method for
determining compensation when the condemned property, and
portions of the remainder, are capable of producing income.
¶2 DPG argues that the district court erred in (1) determining as
a matter of law that water storage was not the highest and best use
of the property; (2) excluding its lost income evidence which, it says,
was admissible under its income capitalization approach to valuing
the affected property; and (3) denying a substantial portion of its
request for costs. We affirm.
I. Background
¶3 Petitioner, the Board of County Commissioners of Weld
County (the County), filed a petition in condemnation to extend a
public road over 19 acres1 of DPG’s 760-acre property (the
Property). When condemnation proceedings were initiated, the
1 The condemned property included 16.96 acres in fee, 2.04 acres in
permanent easements, and 2 temporary construction easements.
The nature of land interests conveyed to the County is not at issue
in this case, and there is no dispute regarding the value of the
easements.
1
Property was used primarily for agricultural and recreational
purposes.
¶4 The parties stipulated to the County’s immediate possession of
the nineteen acres and proceeded to a valuation trial.2 DPG’s
valuation encompassed two steps: (1) determining the highest and
best use of the Property; and (2) in light of that determination,
calculating the fair market value of the condemned property as well
as any diminution in fair market value to the residue.
¶5 According to DPG’s experts, the highest and best use of the
Property was mixed: portions of the Property were most
advantageous for continued agricultural and recreational use, while
other portions had the potential for gravel mining and subsequent
water storage.
¶6 Specifically, approximately 280 acres of the Property contained
gravel deposits. DPG’s experts testified that those acres could be
mined over a period of time and then repurposed for water storage.
The evidence of the feasibility of mining and water storage was set
forth in a detailed development plan (the mining plan). The mining
2Before filing the petition, the County paid DPG $148,719, the
amount the County estimated as just compensation for the
nineteen acres.
2
plan split the 280 minable acres into four areas — referred to as
“cells” — located in a horizontal line across the Property. The
nineteen-acre strip condemned by the County ran through Cell C.
¶7 DPG’s method of valuation proceeded as follows: first, it used
primarily a comparable sales approach to calculate the
pre-condemnation fair market value of the Property. DPG’s
appraiser relied on six similar properties (though only two had
potential for mining and water storage) to arrive at a per-acre value
of $11,500, or $8.74 million for the entire 760-acre Property. The
gravel mining expert, who was not an appraiser but had substantial
experience buying and selling properties with mining potential,
used a similar approach. He testified that, at the time of the
condemnation, taking into account the expenses and losses
inherent in gravel mining, a willing buyer would have paid
approximately $5,000 per non-income-producing (agricultural) acre,
and $10,000 per income-producing (mining) acre, or a total of $5.2
million for the Property. The County’s own appraiser ultimately
endorsed the mining expert’s pre-condemnation, fair market value
of the Property.
3
¶8 Next, to calculate the loss in value to the Property caused by
the condemnation, DPG switched to what it calls an income
approach. But rather than calculating a post-condemnation fair
market value of the Property (that could be compared with the
pre-condemnation value, as calculated by the appraiser and mining
expert), DPG used its mining plan to compute the total income that
could have been generated from the nineteen-acre strip ($1 million),
as well as from a twenty-seven-acre portion of Cell C affected by the
condemnation ($2.1 million). It then attempted to present the $3.1
million loss figure as its compensable damages.
¶9 The district court excluded only the ultimate loss figure,
concluding that without any evidence of that figure’s connection to
the Property’s fair market value, the figure amounted to
inadmissible frustration-of-plan damages. In light of the court’s
ruling, DPG presented an alternative damages figure: the appraiser,
using his $11,500 per-acre fair market value figure, testified that
the Property’s value decreased by $550,000 — the value of the
approximately forty-six acres (plus the easements) that were either
condemned or damaged by the condemnation.
4
¶ 10 The jury awarded DPG $183,795 in damages for the
condemned property3 and nothing for any damage to the residue.
¶ 11 DPG filed a post-trial motion to recover its costs, as permitted
by statute. It sought $248,680.92, much of which was attributable
to expert witness fees. The district court rejected a substantial
portion of the requested costs on the grounds that the costs were
disproportionate to DPG’s success and that certain expert evidence
had been excluded. The court awarded costs in the amount of
$68,808.96.
II. DPG’s Contentions on Appeal
¶ 12 On appeal, DPG contends that the district court erred in
rejecting water storage as the highest and best use of certain
portions of the Property and in excluding its lost income evidence.
DPG also argues that the court erred in disallowing a significant
portion of its costs.
3 The nineteen-acre condemned strip consisted of seven-and-a-half
minable acres and eleven-and-a-half non-minable acres. The value
of the easements was $14,500. DPG’s appraiser valued the
condemned strip at $233,000 ($11,500 per acre X 19 acres +
$14,500). DPG’s mining expert valued the strip at $147,000
($10,000 X 7.5 + $5000 X 11.5 + $14,500). The jury’s award of
approximately $184,000 is close to the mid-point between the two
numbers.
5
A. Highest and Best Use of the Property
¶ 13 The measure of compensation in an eminent domain case
turns on the value of the entire property as it exists at the time of
the condemnation, “taking into consideration its highest and best
future use.” Bd. of Cty. Comm’rs v. Vail Assocs., 171 Colo. 381,
389, 468 P.2d 842, 846 (1970). Under this principle, the property’s
value is based on the most advantageous use to which the property
reasonably may be applied and is not limited to its current
condition. Dep’t of Highways v. Schulhoff, 167 Colo. 72, 77-78, 445
P.2d 402, 405 (1968); see, e.g., State Dep’t of Highways v.
Mahaffey, 697 P.2d 773, 775-76 (Colo. App. 1984) (highest and best
use of property was gravel mining despite land currently being
vacant and undeveloped). The four factors to be used in
determining a property’s highest and best use are legal
permissibility, physical possibility, financial feasibility, and
maximal productivity. See Appraisal Institute, The Appraisal of
Real Estate 280 (14th ed. 2013).
¶ 14 Although the admissibility of evidence regarding property
value is “governed by an expansive, rather than restrictive, rule,”
City of Englewood v. Denver Waste Transfer, 55 P.3d 191, 195 (Colo.
6
Ohio App. 2002), a district court will not consider evidence of a property’s
highest and best use that is overly speculative, Schulhoff, 167 Colo.
at 75, 445 P.2d at 404.
¶ 15 Most of the Property’s 760 acres could only be used for
agricultural or recreational purposes. The dispute between the
parties centered on the highest and best use of 280 acres of the
Property, comprising cells A, B, C, and D, which contained gravel
deposits. The district court determined that the highest and best
use of those acres was gravel mining, but not water storage as well.
¶ 16 The determination of a property’s highest and best use is
generally a factual question for the jury unless the evidence of
highest and best use is so improbable or speculative that it should
be excluded from the jury as a matter of law. City of Quincy v.
Diamond Constr. Co., 762 N.E.2d 710, 715 (Ill. App. Ct. 2002); cf.
Bd. of Cty. Comm’rs v. Rodgers, 2015 CO 56, ¶¶ 13, 15-17
(explaining that, after presentation of evidence, if the court finds
that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may resolve the
issue against the party as a matter of law).
7
¶ 17 After DPG’s experts testified about the Property’s highest and
best use, the district court determined, as a matter of law, that the
evidence was too speculative to support a finding that water storage
was the highest and best use of Cell C.4 We review that legal
conclusion de novo. See E-470 Pub. Highway Auth. v. 455 Co., 3
P.3d 18, 22 (Colo. 2000).
¶ 18 The district court’s determination was based on the following
evidence:
 The construction of a slurry wall was integral to DPG’s
water storage plan. (A slurry wall is a reinforced,
concrete wall structure that lines a mining pit and
provides a barrier for water storage.) According to DPG’s
engineering expert, construction becomes more difficult
and risky as the depth of the slurry wall increases. An
irregular bottom and porous materials also make
construction more difficult, and these elements were
present in Cell C.
4The highest and best use evidence submitted by DPG focused on
Cell C.
8
 The slurry wall would have to be built approximately 108
feet deep, possibly 116 feet deep. DPG’s engineering
expert testified that he thought a 108-foot wall was
possible, but that the deepest slurry wall he had
experience with was 55 feet deep.
 The usual installation cost for a slurry wall is $3 million
to $5 million, but because of the bedrock depth, the
nature of the soil and other underground materials, and
the additional equipment necessary for construction, the
cost of a slurry wall in Cell C was estimated at almost
$14 million.
 Although DPG had an estimate for the cost of the slurry
wall, the experts’ analysis was so preliminary that they
did not know at the time of trial whether it was feasible to
construct a slurry wall at all. For example, DPG’s
experts had drilled four boreholes to determine the soil
conditions in Cell C, but DPG would not know whether
Cell C was suitable for a slurry wall until after its experts
drilled an additional eighteen boreholes and analyzed the
results. DPG’s engineering expert acknowledged that the
9
outcome of any further investigation could change his
opinions.
 DPG’s geologist acknowledged that the experts did not
have sufficient information to determine whether water
storage on Cell C would be a “good idea” even though it
might be “possible.”
¶ 19 We conclude that the district court did not err in determining,
as a matter of law, that the evidence was too speculative to support
a jury finding that water storage was the highest and best use of
Cell C. See Denver Waste Transfer, 55 P.3d at 197 (Valuation
depends on the “reasonable” future use of the property, but “merely
possible or imaginary uses or speculative schemes of its proprietor
are to be excluded.”) (alteration omitted) (quoting Twin Lakes
Hydraulic Gold Mining Syndicate, Ltd. v. Colo. Midland Ry., 16 Colo.
1, 5, 27 P. 258, 260 (1891)).
B. Exclusion of DPG’s Lost Income Evidence
¶ 20 The district court allowed DPG’s appraiser and mining expert
to testify, consistent with DPG’s mining plan, that gravel mining of
10
Cell C would generate income.5 That evidence was admissible, the
court ruled, because it was relevant to determining the Property’s
fair market value. But when DPG attempted to introduce the lost
income figures as the actual amount of compensation due, the
court excluded that evidence. It reasoned that, on their own and
unconnected to a fair market valuation of the Property, the lost
income figures amounted to a request for damages based on the
frustration of a hypothetical development plan, a type of
compensation barred in eminent domain cases.
¶ 21 On appeal, DPG insists that evidence of lost income was
admissible pursuant to an income capitalization approach to
valuing the Property. We disagree.
1. Valuation Methods in Eminent Domain Cases
¶ 22 In an eminent domain case, the landowner is entitled to be
reimbursed for both the value of the condemned property and the
reduced value of the remaining property.
¶ 23 The amount of compensation owed for the condemned
property is “measured by the actual fair market value of the
5The mining plan contemplated gravel mining of cells A, B, and D,
but did not include specific income figures for those cells.
11
property” at the time of the taking. Palizzi v. City of Brighton, 228
P.3d 957, 962 (Colo. 2010); see also Denver Waste Transfer, 55 P.3d
at 195 (Just compensation is the “present reasonable market value”
of the property in light of its “highest and best use.”). Fair market
value is what a willing buyer would pay for the property if the owner
had voluntarily offered it for sale. Palizzi, 228 P.3d at 962; see also
CJI-Civ. 36:3 (2017) (“‘Reasonable market value’ means the fair,
actual, cash market value of the property. It is the price the
property could have been sold for on the open market under the
usual and ordinary circumstances . . . .”).
¶ 24 Compensation for damage to the remainder of the property is
measured by the difference in the fair market value of the residue
immediately before and immediately after the taking. 4A Julius L.
Sackman et al., Nichols on Eminent Domain § 14.02(3) (3d ed.
2015; see also Wassenich v. City & Cty. of Denver, 67 Colo. 456,
466-67, 186 P. 533, 537 (1919).
¶ 25 There are three general approaches to establishing the fair
market value of real estate: the comparable sales approach, the
income approach, and the cost approach. Mahaffey, 697 P.2d at
775. Only the first two methods are relevant here.
12
¶ 26 The comparable sales approach aims to identify sufficiently
similar properties — in size, use or development, or location —to
arrive at a reasonable estimate of the fair market value of the
condemned property. See Goldstein v. Denver Urban Renewal Auth.,
192 Colo. 422, 426, 560 P.2d 80, 84 (1977).
¶ 27 The income approach values the property based on projections
of the “net income generated by the property during the remainder
of its productive life.” Denver Urban Renewal Auth. v. Berglund-
Cherne Co., 193 Colo. 562, 565-66, 568 P.2d 478, 480 (1977).
Under this approach, an appraiser analyzes a property’s capacity to
generate benefits, usually an income stream, and then, using
various techniques and mathematical procedures, “convert[s] these
benefits into an indication of present value.” Appraisal Institute at
445. “Overall, the income approach converts the income that the
real estate is expected to generate into a factor that a reasonable
buyer or seller would consider in determining fair market value.”
W. Va. Dep’t of Transp. v. W. Pocahontas Props., L.P., 777 S.E.2d
619, 639 (W. Va. 2015).
¶ 28 The goal of both methods is to determine just compensation
based on the impact of the condemnation on the present,
13
reasonable market value of the property. Jagow v. E-470 Pub.
Highway Auth., 49 P.3d 1151, 1157 (Colo. 2002); see also Appraisal
Institute at 439. And, if performed correctly, the comparable sales
and income approach calculations should result in similar fair
market valuations for the same property, providing further
assurances to the appraiser that the final value opinion is reliable.
Appraisal Institute at 439. Utilizing more than one valuation
approach may therefore be preferable because the approaches can
then be used “simultaneously as cross-checks upon one another,”
which can be particularly important for complex, mineral-bearing
land appraisals. W. Pocahontas Props., 777 S.E.2d at 635-36
(quoting W. Va. Dep’t of Highways v. Sickles, 242 S.E.2d 567, 569
(W. Va. 1978)).
¶ 29 In contrast to damages based on the fair market value of the
property, losses suffered from the frustration of the landowner’s
special plan for the property are not compensable. See 4A Nichols
on Eminent Domain at § 14.02(5). The prohibition on frustration-
of-plan damages is based on the idea that an anticipated
development plan cannot be viewed as an “accomplished fact,”
because such an approach ignores the substantial but unknown
14
costs involved in implementing the plan. See Schulhoff, 167 Colo.
at 77, 445 P.2d at 405.
¶ 30 The line between evidence of a hypothetical development plan,
the frustration of which is not compensable in damages, and
evidence of potential income generation, the admission of which is
relevant to an income approach, is not always easy to draw. In
general, an owner cannot recover damages suffered by reason of
being prevented from carrying out a particular scheme of
improvement that exists only in contemplation at the time of trial.
“However, under certain circumstances, evidence that a proposed
use would result in a profit is admissible not for the purpose of
enhancing the damages by showing the loss to the owner of a
particular plan of operation, but to show that such proposed plan is
a feasible plan and should be considered in fixing market value.”
4A Nichols on Eminent Domain at § 14.02(5). Thus, the
hypothetical plan is only relevant to establish “the price on which a
willing buyer and a willing seller would agree for the property in its
present condition.” Bd. of Assessment Appeals v. Colo. Arlberg Club,
762 P.2d 146, 154 (Colo. 1988).
15
2. DPG’s Evidence of Lost Income Was Not Admissible as the
Measure of its Damages
¶ 31 DPG says that the court erred in excluding its evidence of lost
income as damages from frustration of a hypothetical plan. It
contends that its evidence of lost income was admissible under its
income capitalization approach.
¶ 32 The County argues that DPG failed to characterize its
methodology at trial as an income approach and should not be
permitted to switch gears on appeal. In any case, the County says,
even if DPG purported to use an income approach at trial, the lost
income evidence was nonetheless inadmissible because lost income
itself is not the proper measure of damages in an eminent domain
case.
¶ 33 We agree with the County’s second contention and, therefore,
need not resolve its first, except to note that DPG’s appraiser
testified that he used an income approach in part, and that the
County’s attorney objected at various points during the trial to
DPG’s reliance on a flawed income approach.
¶ 34 We review the district court’s ruling to exclude DPG’s lost
income evidence for an abuse of discretion. See Bly v. Story, 241
16
P.3d 529, 535 (Colo. 2010). An abuse of discretion occurs where
the trial court’s ruling was manifestly arbitrary, unreasonable, or
unfair, or was based on a misunderstanding or misapplication of
the law. See Jackson v. Unocal Corp., 262 P.3d 874, 880 (Colo.
2011); People v. Lopez, 2016 COA 179, ¶ 43. Whether the court
misapplied the law in making evidentiary rulings is reviewed de
novo. 455 Co., 3 P.3d at 22-23.
¶ 35 As we have explained, just compensation in an eminent
domain case is measured by the fair market value of the
condemned property at the time of the taking and, with respect to
damage to the residue, by the difference in fair market value of the
residue before and after the condemnation. Palizzi, 228 P.3d at
962; 4A Nichols on Eminent Domain at § 14.02(3).
a. Valuation of the Condemned Strip
¶ 36 DPG presented evidence of the fair market value of the
condemned strip: its appraiser testified that each of the nineteen
acres was worth $11,500; its mining expert testified that each of the
gravel-producing acres was worth $10,000, and each non-income-
producing acre was worth $5,000.
17
¶ 37 But DPG did not seek compensation based on its evidence of
fair market value. Instead, it calculated the total amount of income
that might have been generated from the condemned property over
ten years, applied a capitalization rate to arrive at a present value
for the lost income, and then sought reimbursement for the
prospective income.
¶ 38 The nineteen-acre strip, which contained seven-and-a-half
minable acres and eleven-and-a-half agricultural acres had a fair
market value, according to DPG’s own experts, of somewhere
between $132,500 (per the mining expert) and $218,500 (per the
appraiser) (not including the $14,500 for the easements). But DPG
sought damages of approximately $1 million based on lost income.6
¶ 39 An “income approach” to valuation is not an exercise whereby
an expert simply computes prospective income from the property
and then requests reimbursement in that amount. An income
approach uses potential income from the property, along with all
other factors that would be considered by a buyer, as evidence of
6 The results of the income approach should have aligned with the
results of the experts’ comparable sales approach. But here, the
nineteen-acre strip was 2.5% of the Property but represented about
15% of the Property’s total value.
18
the fair market value of the property in its current condition. The
principles underlying an income approach to valuation reflect the
distinction “between income as a criterion of value and income as
evidence of value.” 5 Nichols on Eminent Domain at § 19.01. Net
income alone is not “controlling on the issue of value”; it is merely
one factor to be considered by the jury in conjunction with all other
material evidence of fair market value. Id.; see also De Freitas v.
Town of Suisun, 149 P. 553, 555 (Cal. 1915) (“The actual market
value is the thing to be determined, and while net revenue should
be considered, it does not, in general, furnish a conclusive measure
of such market value.”); W. Pocahontas Props., 777 S.E.2d at 634
(The future earning power of real estate is “a powerful tool for
calculating a fair market valuation of the real estate.”).
¶ 40 Thus, DPG’s evidence of a potential income stream was
admissible not as the measure of its damages but rather, as the
district court made clear in its order on the motions in limine, as a
factor that could inform the fair market value of the Property. See
Mahaffey, 697 P.2d at 775 (using income approach, appraiser
considered other expert opinions regarding potential income stream
from gravel mining and arrived at a fair market value of the entire
19
property). And indeed, both the appraiser and the mining expert
testified that the potential income stream from mining did inform
their fair market valuations. Though the experts primarily used a
comparable sales approach, the comparable sales were of properties
that had the potential to generate income.
¶ 41 DPG may believe, in hindsight, that the fair market valuations
by its experts did not take adequate account of the Property’s
potential income. But DPG was not entitled to present its lost
income figures to the jury as an alternative to fair market value.
The income approach is an alternative to the comparable sales
approach, but neither method is an alternative to fair market
valuation — as we have noted, both approaches simply use different
techniques for arriving at the fair market value of the property. See
Jagow, 49 P.3d at 1157.
b. Valuation of Damage to the Residue
¶ 42 The same methodological flaws plagued DPG’s valuation of the
damage to the residue. DPG’s theory was that the new road, which
bisected Cell C, rendered approximately twenty-one acres of Cell C
unsuitable for mining. In its most simplified form, the mining
expert’s testimony established that the condemnation resulted in a
20
decrease in mining profits from Cell C in the amount of $2.1 million
(in present value).
¶ 43 There are two problems with DPG’s residue valuation method.
First, compensation for damage to the residue is measured by the
difference in fair market value of the entire residue immediately
before and after the condemnation. See Mack v. Bd. of Cty.
Comm’rs, 152 Colo. 300, 381 P.2d 987 (1963) (determination of
residue damages based upon diminution in value of the entire
residue). So it was improper for DPG to attempt to show a
diminution in value of the 113 acres in Cell C only, when it retained
an additional 627 acres of residue. See 4A Nichols on Eminent
Domain at § 14.02(3)(a) (“[T]he landowner is entitled to receive, in
addition to the value of the part taken, separate severance damages
in order to be fully compensated for the diminution in value of the
property with which the landowner is left.”) (emphasis added); see
also City of Jacksonville v. Nixon, 442 S.W.3d 906, 910 (Ark. Ct.
App. 2014) (“In partial-takings cases, the landowner is entitled to
the value of the lands taken, plus damages to the lands not taken.”)
(emphasis added).
21
¶ 44 Second, the measure of damages still turns on fair market
value. DPG’s experts had to answer three questions: What was the
fair market value of the entire residue immediately before the
taking? What was the fair market value of the entire residue
immediately after? And what was the difference? See W.
Pocahontas Props., 777 S.E.2d at 645. That 280 acres of the
residue contained gravel deposits could have factored into the
answer to those questions. But DPG could not ignore the questions
altogether and simply request reimbursement for its $2.1 million in
lost income from Cell C. Lost income is not a valid substitute for
fair market value, whether the land at issue is the condemned
property or the residue.
¶ 45 As we have noted, DPG offered evidence of the Property’s fair
market value. Based on this admissible evidence, the jury
determined that the nineteen-acre condemned strip had a fair
market value of $183,795.
¶ 46 As for the diminution in value of the residue, DPG presented
evidence that twenty-one acres of Cell C, which had been suitable
for mining, was rendered non-income-producing as a result of the
condemnation. Based on the mining expert’s testimony, the jury
22
could have determined that the twenty-one acres decreased in value
from $10,000 per acre to $5,000 per acre, a diminution in value of
$105,000. But the appraiser, who was offered as the expert in
valuation, testified that each acre, regardless of its income
potential, was worth about $11,500. If the jury credited the
appraiser’s testimony, it could have reasonably concluded that each
of the twenty-one acres was worth $11,500 both before and after
the condemnation, resulting in no diminution in value to the
residue. The jury apparently credited the appraiser. DPG does not
challenge the verdict as inconsistent with the valuation evidence
admitted at trial.
c. The Flawed Valuation Evidence Was Properly Excluded
¶ 47 We discern no error in the district court’s exclusion of DPG’s
lost income figures. In the order on the motions in limine, the court
explained that DPG’s evidence was admissible to show the effect
that the mining income “would have on the property’s current fair
market price.” DPG, though, sought to present the evidence of lost
income as its actual measure of damages, separate from (and
irreconcilable with) the fair market valuation evidence presented by
its experts. Because the lost income evidence, on its own, did not
23
reflect the proper measure of damages, the district court correctly
excluded it. See, e.g., City of Aurora ex rel. Util. Enter. v. Colo. State
Eng’r, 105 P.3d 595 (Colo. 2005), (expert evidence properly excluded
where expert’s methodology was flawed); see also Williams v. State,
406 S.W.3d 273, 283 (Tex. App. 2013) (appraiser’s testimony is
unreliable and therefore inadmissible if the appraiser violated well-
established rules of valuation).
¶ 48 To the district court, the lost income evidence, untethered to a
fair market valuation, amounted to inadmissible frustration-of-plan
damages. We need not decide whether we, too, would characterize
the inadmissible evidence in the same way as the district court. It
is enough to say that the district court was right to exclude the lost
income evidence under these circumstances. See People v. Phillips,
2012 COA 176, ¶ 63 (appellate court may affirm trial court’s
evidentiary ruling on any ground supported by the record).
C. Order on DPG’s Costs
¶ 49 The district court declined to reimburse DPG for most of its
expert witness fees, finding that DPG’s costs were disproportionate
to the judgment and that it was not entitled to reimbursement for
expert testimony that was ultimately excluded. We review an award
24
of costs for an abuse of discretion. First Citizens Bank & Tr. Co. v.
Stewart Title Guar. Co., 2014 COA 1, ¶ 50. Therefore, we will only
disturb the award if it is manifestly arbitrary, unreasonable, or
unfair. Id. Because we conclude that the income valuation
evidence presented by DPG’s experts was properly excluded, we
cannot conclude that the district court abused its discretion in
limiting DPG’s award of costs on this basis.
III. Conclusion
¶ 50 The judgment and cost order are affirmed.
JUDGE DAILEY and JUDGE MÁRQUEZ concur.
25