Westminster Falcon/Trinity L.L.P. v. Chong Shin ( 2012 )

NO. 07-11-00079-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 23, 2012
_____________________________
HARTMAN INCOME REIT PPTY HOLDINGS, LLC,
Appellant
v.
DALLAS CENTRAL APPRAISAL DISTRICT AND THE
APPRAISAL REVIEW BOARD OF DALLAS CENTRAL
APPRAISAL DISTRICT,
Appellees
_____________________________
FROM THE 134TH DISTRICT COURT OF DALLAS COUNTY;
NO. 09-12040-G; HONORABLE JAMES M. STANTON, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Hartman Income REIT PPTY Holdings, LLC (Hartman) appeals a judgment
denying recovery upon its claim against the Dallas Central Appraisal District and the
Appraisal Review Board of the Dallas Central Appraisal District (jointly referred to as
“the District”). The latter, in 2009, allegedly assigned an excessive value to property
Hartman owned. Hartman sought to correct the error and reduce the valuation. After
trial to the court, the aforementioned judgment was entered. Hartman now asserts
thirteen issues for us to review. They can be divided into two common categories,
however. One deals with the admission of an exhibit which had not been disclosed
during discovery, while the other concerns the sufficiency of the evidence or accuracy of
the law underlying many of the trial court’s findings of fact and conclusions of law. We
affirm.
Issues One through Six and Eleven and Twelve
The eight issues we initially address involve the trial court’s decision to admit into
evidence defense exhibit 1B which the District failed to disclose to Hartman. The exhibit
consisted of final property values derived by the District’s expert witness. Because the
item was not disclosed, despite timely discovery requests for such documents, the trial
court should not have admitted it, according to Hartman. Furthermore, the topic was
broached during trial and via a motion for new trial. The trial court not only admitted the
document at trial but also denied Hartman’s motion for new trial. We overrule the
issues.
The applicable standard of review is one of abused discretion. City of Brownsville
v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (involving discovery and evidentiary
issues); Clift v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987) (involving the granting or
denial of a motion for new trial). Under it, the decision of the trial court must fail to
comport with guiding rules or principles or otherwise be arbitrary before we can alter it.
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Finally, the
burden lies with the appellant to establish that an abuse of discretion occurred. See
Navistar Intern. Corp. v. Valles, 740 S.W.2d 4, 6 (Tex. App.–El Paso 1987, no writ).
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Admission of Exhibit at Trial
Next, no one disputes that exhibit 1B fell within the category of documents
encompassed by a request for disclosure or production propounded by Hartman. And,
at trial, Hartman objected to its admission because the District allegedly failed to lay a
proper foundation for its admission or disclose it during discovery. The ensuing
discourse between the trial court and Hartman’s counsel include statements by counsel
that “I’ve not seen him show me where it’s been produced today,” “[a]ctually, it’s one of
our exhibits, Your Honor,” and “I’ll take . . . [opposing counsel] at his word that he
disclosed it, but I’ve not seen the production or disclosure where these were produced
today.” (Emphasis added). Upon hearing the latter, the trial court overruled the
objections and admitted the exhibit. Later, counsel for Hartman would concede that he
withdrew his objection regarding the failure to produce the exhibit. These
circumstances fall short of evincing an abuse of discretion for several reasons.
First, to preserve error regarding the admission of evidence, one must
contemporaneously object. Bay Area Healthcare Group, Ltd. V. McShane, 239 S.W.3d
231, 235 (Tex. 2007). By withdrawing its objection at trial, Hartman waived its
complaint about failing to produce the exhibit during discovery.
Second, it is true that a party has a duty to supplement discovery requests. TEX.
R. CIV. P. 193.5(a). However, we are cited to no authority suggesting that a litigant who
previously provided documents in response to a discovery request must repeat the act
on the day of trial. Nor do we know of any such general obligation. This is of import
given the tenor of Hartman’s objection. Again, it opted to accept the District’s
representation at trial that it had previously been disclosed. However, it continued to
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complain about the item not being “produced today.” Without showing that the District
had the duty to reproduce an exhibit on the day of trial, Hartman has not shown that the
trial court failed to abide by guiding rules or principles. Consequently, we cannot say
that the trial court’s decision at trial constituted an abuse of discretion.
Exhibit as a Basis for Motion for New Trial
After trial and the entry of judgment, Hartman inquired of the District about when
exhibit 1B was produced via discovery. These inquiries led the District to discover that
it was mistaken; the document had not been provided. Hartman then moved for a new
trial, and, at the ensuing hearing, argued that the District’s failure to disclose exhibit 1B
via discovery was harmful. This was purportedly so because the District used data from
the wrong year in compiling the valuations. In other words, the comparables itemized in
exhibit 1B were valuations for the tax year 2010 though the dispute between the two
litigants involved the tax year 2009. Eventually, the trial court allowed the motion for
new trial to be overruled by operation of law. This constituted error, according to
Hartman. We again disagree for several reasons.
First, Hartman was obligated to urge an objection contemporaneous to the
admission of the document. Boyer v. Scruggs, 806 S.W.2d 941, 946 (Tex. App.–
Corpus Christi 1991, no writ). Because the objection initially urged was withdrawn,
waiting to utter it again via a motion for new trial is not sufficiently contemporaneous.
Second, at trial, the witness sponsoring exhibit 1B also sponsored exhibit 1A.
When asked how the former differed from the latter, she testified: “I don’t believe it is.
The only difference is that 1A was the nuts and bolts of the property” while “1B was the
final value.” In other words, “1A [encompassed] the line of factors that led . . . [her] to
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1B.” She also acknowledged that the “two should be taken together.” Though both
exhibits were eventually admitted into evidence, Hartman does not complain about the
admission of 1A. Nor does it argue here that the two exhibits actually differ in ways
other than that mentioned at trial or that 1B fails to represent final values taken from
data in 1A. This is problematic for one is not harmed by the admission of purportedly
objectionable evidence when it was admitted elsewhere without objection. Volkswagen
of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
Third, if one compares the alleged 2010 values represented in 1B to the 2009
values appearing in documentation appended to Hartman’s motion for new trial, the
result would be somewhat surprising. The former are generally lower than the latter.
For instance, the 2010 value assigned to “Park Plaza” was $2,857,050; however, the
2009 value for the same property was $3,150,000. The same is true for “Park Central”
which dropped in value from $6,826,110 in 2009 to $6,250,000 in 2010, and “Coit
Central” which dropped from $15,805,120 to $14,600,000 during the same period. This
is of import because Hartman sought, via its suit, to reduce the value assigned to its
property which value is apparently derived through or affected by comparison to the
value of comparable properties. So, in effect, what we have before us is a taxpayer
complaining of harm from the appraisal district valuing its property through comparable
values lower than the ones it should have used. While this suggests that the taxpayer
invites a re-valuation of its property based upon higher comparables, Hartman cites us
to no legal authority requiring a new trial due to error that benefits the complainant. Nor
did we find any.
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Remaining Issues
Hartman’s remaining issues concern whether the evidence was legally or
factually sufficient to support various findings or conclusions of law entered by the trial
court. We overrule them.
Regarding findings number 1B, 1C, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17,
and 18, the extent of Hartman’s argument consists of conclusory statements such as 1)
there is “insufficient evidence in the record based upon the testimony and evidence of
the Appellant,” 2) the findings “are contrary to the evidence,” 3) the finding “is directly
negated by the letter from Appellee’s counsel,” and 4) “there is no evidence or
insufficient evidence to support the findings.” In one instance, it also argues that it
“offered evidence that the Appellant’s real property was unequally appraised” and
followed that comment by citing to pages 14–93 of the reporter’s record. At another
time, it posited that “Appellee’s own evidence justified a reduction in value,” and
followed that by referencing pages 115 through 116 of the reporter’s record. But
nowhere do we find any substantive discussion or analysis of the issues. We have no
discussion as to why the testimony appearing on pages 115-116 of the record somehow
renders inconsequential testimony from the District’s expert that the value of Hartman’s
property “currently on the property [rolls] is the value that should be placed there,” that
value being $6,826,110.
Additionally, most of the findings attacked are lengthy and encompass multiple
factual statements. Some of those statements include references to topics such as the
identity of Hartman’s own experts and the data used in making their respective
calculations. Whether they too are under attack by Hartman is unknown given the
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conclusory nature of its briefing. And, to the extent that the findings in question may
tend to reject the relevance or importance of the criteria used by Hartman’s experts in
calculating values, Hartman makes no attempt to explain why deeming the criteria
irrelevant or unimportant was wrong.
An appellate brief must contain a clear and concise argument for the contentions
made, with appropriate citation to authorities and to the record. TEX. R. APP. P. 381(h).
Bare assertions of error without argument, authority, or citation to the record waive
error. Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591, 597 (Tex. App.–Dallas 2009,
no pet.). Hartman’s attack upon the aforementioned findings liken to bare assertions.
Thus, its complaints are waived.
As for the attacks levied upon Conclusions of Law No. 6 (“there is no basis in any
case law or statute”), Nos. 9, 10, and 11 (“there is no evidence or insufficient evidence
to support the ‘conclusions’ based upon the evidence presented by the Appellant”), they
too consist of bare assertions. Being inadequately briefed, they too are waived.
Each issue is overruled, and the judgment is affirmed.
Brian Quinn
Chief Justice
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