CORE Electric Cooperative v. Freund Investments

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 9, 2022
2022COA63
No. 20CA2013, CORE Electric Cooperative v. Freund
Investments, LLC — Eminent Domain — Condemnation —
Evidence Concerning Value of Property; Evidence — Hearsay
Exceptions — Public Records and Reports
In this condemnation case, a division of the court of appeals
determines that comparable sales that are not verified in
compliance with section 38-1-118, C.R.S. 2021, may be admissible
under the subsequently adopted hearsay exceptions under CRE
803. Section 38-1-118 provides for the admission of evidence of
property values in eminent domain proceedings where the witness
“has personally examined the record and communicated directly
and verified the amount of such consideration with either the buyer
or seller.” As a matter of first impression, the division concludes
that nothing in the language of section 38-1-118 directly addresses
the exclusion of evidence of comparable sales. Thus, the hearsay
exceptions under CRE 803 are independent and alternative
methods to section 38-1-118 for the admission of hearsay evidence
of the value of comparable sales.
COLORADO COURT OF APPEALS 2022COA63
Court of Appeals No. 20CA2013
Arapahoe County District Court No. 18CV32213
Honorable Elizabeth Weishaupl, Judge
CORE Electric Cooperative, a Colorado cooperative electric association and
nonprofit corporation, f/k/a Intermountain Rural Electric Association,
Petitioner-Appellee,
v.
Freund Investments, LLC, a Colorado limited liability company,
Respondent-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUSTICE MARTINEZ*
Fox and Gomez, JJ., concur
Announced June 9, 2022
Alderman Bernstein LLC, Jody Harper Alderman, Carrie S. Bernstein, Amanda
A. Bradley, Denver, Colorado, for Petitioner-Appellee
Campbell Killin Brittan & Ray, LLC, Bruce E. Rohde, Margaret R. Pflueger,
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. 2021.
¶1 In this condemnation case, respondent, Freund Investments,
LLC (Freund), appeals the trial court’s judgment entered on a jury
verdict after a valuation trial. Freund contends that the trial court
erred by (1) finding its appraiser’s valuation based on the
subdivision development method inadmissible; and (2) excluding
evidence of multiple comparable sales pursuant to section 38-1-
118, C.R.S. 2021. We affirm.
I. Background
¶2 Petitioner, CORE Electric Cooperative (CORE), formerly known
as Intermountain Rural Electric Association, filed a petition in
condemnation to acquire a nonexclusive permanent easement over
26.07 acres on the western-most edge of Freund’s 2,722-acre
property (the Property) to construct and operate a 115kV
transmission line and ancillary distribution facilities extending from
CORE’s Kiowa substation to its Brick Center substation. CORE
also petitioned for a temporary construction easement over smaller
portions of the Property. At the time of the petition, the Property
was primarily used for agricultural purposes.
¶3 The parties stipulated to CORE’s immediate possession of the
land subject to the easements and the case proceeded to a
1
valuation determination. On receiving their appraisers’ reports, the
parties agreed that the highest and best use of the Property was to
divide the Property into thirty-five- and forty-acre residential lots for
future sale.
¶4 In determining the fair market value of the condemned
property and any diminution to the fair market value to the residue,
Freund’s appraiser, Gregory Owen, used two methods of valuation
— the sales comparison approach and the subdivision development
method.
¶5 First, using the sales comparison approach, Owen relied on
seven similar properties to arrive at a per-acre value of $2,000.
Based on this per-acre value, he concluded that the permanent
easement’s value was $50,000. He also concluded that the
temporary construction easement’s value was $5,000 based on
similar temporary land leases. Next, to calculate the loss in value
to the Property caused by the condemnation, Owen adjusted the
per-acre value by 5% and arrived at a per-acre value of $1,900 after
condemnation. After subtracting the post-condemnation value from
the pre-condemnation value, he estimated the value of just
2
compensation under the sales comparison approach to be
$330,000.
¶6 Second, using the subdivision development method, Owen first
divided 1,766.27 acres of the Property into forty-four hypothetical
forty-acre lots, each designated as premium or nonpremium lots
based on the appeal and terrain of the lot (i.e., unobstructed views,
creek access, trees), with a surplus of 955.68 acres. Owen relied on
ten similar properties to estimate the retail value of the twenty-eight
premium lots to be $240,000 and the sixteen nonpremium lots to
be $200,000. Before condemnation, he projected that four to six
lots would be sold each year over a ten-year period, with an
increase in value to each lot by 3% annually to account for
inflation, and then added the estimated value of all the lots
together. Next, relying on market data, he deducted the estimated
costs of selling the lots, the estimated development costs, the
estimated developer profit, and the estimated entrepreneurial
incentive/discount rate from the total estimated value of the lots.
After adding the value of the surplus with an estimated value of
$2,000 per acre, Owen arrived at a total pre-condemnation value of
$5,650,000 for the entire property.
3
¶7 After condemnation, Owen opined that six and one-half
premium lots changed to nonpremium lots because the scenic view
on those lots was obstructed by the transmission lines. Due to the
increase in nonpremium lots, Owen projected that two to six lots
would be sold each year over an eleven-year period. Using the same
method to determine the pre-condemnation value, he arrived at a
post-condemnation value of $5,380,000 for the entire Property. He
then subtracted the post-condemnation value from the
pre-condemnation value to arrive at an estimated just
compensation value under the subdivision method of $270,000.
¶8 Owen’s final estimation for just compensation was $300,000,
the median value of the two valuation methods.
¶9 CORE filed a motion in limine to exclude Owen’s expert
opinion and appraisal report in its entirety, arguing that his
appraisal methodology was inadmissible under Department of
Highways v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968), and
Board of County Commissioners v. Vail Associates, Ltd., 171 Colo.
381, 468 P.2d 842 (1970). The trial court found Owen’s opinion
using the subdivision development method inadmissible, reasoning
that “the Colorado Supreme Court expressly forbids the method of
4
hypothetically carving a land into smaller tracts, estimating the
value of each site and then adding the estimated values of all the
sites together.” See Schulhoff, 167 Colo. at 79, 445 P.2d at 406.
But the court found Owen’s opinion using the sales comparison
approach admissible.
¶ 10 Before trial, CORE objected to the admission of Owen’s
opinion based on the sales comparison approach because Owen did
not directly communicate with the buyer or seller of the seven
comparable sales to verify the amount of consideration as required
by section 38-1-118. Freund argued that Owen was able to verify
the amount of consideration for one comparable sale with the
buyer. Thus, the trial court noted that Owen’s opinion on the
remaining unverified sales would be admissible under the public
records hearsay exception, CRE 803(8), because Owen confirmed
the comparable sales’ prices with the assessor’s records and
cross-checked the prices with the clerk and recorder records.
¶ 11 Nonetheless, the trial court excluded six out of the seven
comparable sales as inadmissible under section 38-1-118.
Applying “the statute as written,” the court found that Owen
personally examined the record for all seven comparable sales, but
5
he verified the amount of consideration for only one comparable
sale with the buyer. Because the statute required both steps, only
the one comparable sale that was verified with the buyer was
admissible.
¶ 12 In light of the court’s rulings, Owen’s testimony at trial was
limited to his valuation of the Property using the comparable sales
approach based on one comparable sale. Owen also testified that
the transmission lines impacted the view corridor of the Property
and decreased to zero the value of the twenty-six acres on which the
lines are located. Freund also called a second appraiser, W. West
Foster, who was hired by CORE to appraise the Property. Foster
used the comparable sales method to determine a per-acre value of
$2,500. Because the nonexclusive easement was within the
building setback area, Foster arrived at a 50% condemnation value
of $32,588. He also valued the temporary easement at $693 with a
10% rental rate. The total compensation estimate based on Foster’s
appraisal was $33,300, with no damage to the residue.
¶ 13 In rebuttal, CORE’s appraiser, Michael Earley, using the
paired sales analysis approach to compare similar thirty-five-acre
residential sites with and without transmission lines, testified that
6
the existence of transmission lines did not impact the fair market
value of the residential sites. Earley did not, however, conduct a
valuation of the Property as a whole.
¶ 14 The jury awarded Freund $33,300 in damages for the
condemned property and $50,000 in damages to the residue.
II. Subdivision Development Method
¶ 15 Freund first contends that the trial court erred by finding
Owen’s valuation using the subdivision development method
inadmissible under Schulhoff and Vail Associates, Ltd. Specifically,
it argues that Owen’s subdivision development method was not too
speculative and that his methodology went to the weight of his
testimony, not the admissibility. We disagree.
A. Standard of Review and Applicable Law
¶ 16 We review a trial court’s evidentiary rulings for an abuse of
discretion. Palizzi v. City of Brighton, 228 P.3d 957, 962 (Colo.
2010). A trial court abuses its discretion only if its decision was
manifestly arbitrary, unreasonable, or unfair, or based on an
erroneous understanding or application of the law. Bd. of Cnty.
Comm’rs v. DPG Farms, LLC, 2017 COA 83, ¶ 34. “Whether the
7
court misapplied the law in making evidentiary rulings is reviewed
de novo.” Id.¶ 17 “Private property shall not be taken or damaged, for public or
private use, without just compensation.” Colo. Const. art. 2, § 15.
“Just compensation is measured by the actual fair market value of
the property, taking into consideration its most advantageous use
at the time of the condemnation.” Palizzi, 228 P.3d at 962.
¶ 18 The purpose of a valuation proceeding is to replicate the
market. Id. at 963. In such a proceeding, the fact finder must
determine how much a willing buyer would pay for the property if
the owner had voluntarily offered the property for sale. Id. In doing
so, the fact finder is permitted to consider the reasonable
probability of a future use of a property to the extent that it relates
to the value of the property. Vail Assocs., Ltd., 171 Colo. at 388,
468 P.2d at 845 (“It is fundamental that evidence of the highest and
best use to which the property may reasonably be applied in the
future . . . is admissible to assist the commission or jury in arriving
at the present cash market value of the property being taken.”).
Although the scope of admissible evidence of the value of the
property is expansive, the trial court will not admit evidence of the
8
property’s highest and best use that is too speculative. DPG Farms,
LLC, ¶ 14 (citing Schulhoff, 167 Colo. at 77, 445 P.2d at 405).
¶ 19 One accepted method for proving the amount a willing buyer
would pay for the property is the comparable sales approach (also
referred to as the market data approach). Denver Urb. Renewal
Auth. v. Berglund-Cherne Co., 193 Colo. 562, 565, 568 P.2d 478,
480 (1977). Under that approach, the value of condemned property
is determined, in part, by prices paid for similar property:
Evidence of the price paid for similar property
in a voluntary sale is admissible on the
question of value of the property condemned,
provided the properties sold are similar in
locality and character to the property in
question and not so far removed in point of
time to make a comparison unjust or
impossible.
Schulhoff, 167 Colo. at 80, 445 P.2d at 406.
¶ 20 It is also permissible and proper to show that a tract of land is
suitable for subdivision into lots. Id. at 77, 445 P.2d at 405.
However, it is improper to show the number and value of lots as
separated parcels in an imaginary subdivision as an accomplished
fact. Id.9
¶ 21 For example, it is speculative, and therefore improper, to
hypothetically carve up a tract of land into residential building
sites, estimate the value of each site, and then add the values
together. Vail Assocs., Ltd., 171 Colo. at 388-89, 468 P.2d at 846
(citing Schulhoff, 167 Colo. at 74, 445 P.2d at 403). Under this
method of valuation, the cost of improvement is conjectural and,
thus, reflects prospective value rather than present fair market
value.
B. Analysis
¶ 22 Our supreme court’s decisions in Schulhoff and Vail
Associates, Ltd. generally prohibit use of the subdivision
development method of valuation to determine the value of property
that has not been subdivided. Owen valued the Property by
dividing the Property into forty-four hypothetical residential lots,
estimated the value of the individual lots, and then added the
estimated values of all the lots sold over a ten- and eleven-year
period with an annual inflation rate of 3%. Owen went another step
further and deducted costs associated with developing the Property
based on current market estimates.
10
¶ 23 Still, Freund contends that Owen’s subdivision development
method was admissible under Board of County Commissioners v.
Evergreen, Inc., 532 Colo. App. 171, 532 P.2d 777 (1974), because
the valuation was based on predictable market values, making the
subdivision “probable.” Freund’s reliance on Evergreen, however, is
misplaced. The condemned property in that case was already
platted and “already subdivided and presently for sale for
residential purposes.” Id. at 174, 532 P.2d at 779. Thus, the
valuation of individual lots on the condemned property using the
sale price of comparable lots was admissible. Id. at 176, 532 P.2d
at 780. Here, at the time of condemnation, the Property was
undeveloped land on which no measures had been taken to prepare
for subdivided lots. Nor is there any evidence in the record that
there was a timeframe for commencement of any work. Therefore,
any valuation of hypothetical lots within a hypothetical subdivision
on the Property is highly speculative, even if Owen’s valuation was
based on easily ascertainable market data. See Vail Assocs., Ltd.,
171 Colo. at 389, 468 P.2d at 846 (“The measure of compensation is
not the aggregate of values of individual plots into which the tract
taken could best be divided, but rather the value of the whole tract
11
as it exists at the time of the condemnation, taking into
consideration its highest and best future use.”). This is particularly
true given that Owen assigned different, prospective values to the
lots based on their premium status, estimated the number of lots
sold each year over a ten- and eleven-year period, and increased the
value of the lots by 3% each year for inflation.
¶ 24 To the extent that Freund contends that Owen was precluded
from testifying about the impact the transmission lines had on
particular portions of the Property, the record belies this
contention. Owen testified that the twenty-six acres of condemned
property, previously valued at $50,000, was valueless. Moreover,
during cross-examination, CORE used Owen’s grid of the
hypothetical subdivision to confirm that Owen opined that six and
one-half of the forty-four hypothetical lots would be directly
impacted by the transmission lines.
¶ 25 Finally, contrary to Freund’s contention, Earley did not use a
similar methodology when creating his rebuttal report. Our
supreme court has concluded that the use of the paired sales
analysis approach is a proper method of valuation. Herring v. Platte
River Power Auth., 728 P.2d 709, 712-13 (Colo. 1986). Earley used
12
the same paired sales analysis approach the appraiser in Herring
employed to determine whether the presence of transmission lines
on a property reduced the value of the thirty-five-acre residential
property within a subdivision when compared to the value of a
neighboring residential property without transmission lines. From
his “paired analyses,” Earley opined that the presence of
transmission lines did not affect the value of the properties. See id.
at 711-12 (“[T]he appraiser compared sales of properties within
each of the subdivisions, properties that were generally similar in
all respects except, according to the appraiser, that one parcel of
each pair was visually and aesthetically affected by the presence of
an electrical substation.”). Similarly, he did not compare the sales
prices of the properties within the subdivisions to the value of
Freund’s property, nor did he make a valuation of the Property as a
whole. See id. at 712.
¶ 26 Accordingly, the trial court did not err by finding Owen’s
valuation using the subdivision development method inadmissible.
III. Comparable Sales
¶ 27 Freund next contends that the trial court erred by excluding
evidence of the unverified comparable sales because the comparable
13
sales prices were admissible under the hearsay exceptions for
public records, CRE 803(8), and for records of documents affecting
an interest in property, CRE 803(14). Although we agree that the
hearsay exceptions apply to the admissibility of comparable sales in
a condemnation case and that the trial court erred, we discern no
reversible error.
A. Standard of Review and Applicable Law
¶ 28 Generally, trial courts have broad discretion to determine the
admissibility of evidence. Bocian v. Owners Ins. Co., 2020 COA 98,
¶ 64. Here, however, this issue involves the court’s interpretation
and application of section 38-1-118, a question of law reviewed de
novo. See E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22
(Colo. 2000).
¶ 29 “Our primary objective is to effectuate the intent of the General
Assembly by looking to the plain meaning of the language used,
considered within the context of the statute as a whole.” Bly v.
Story, 241 P.3d 529, 533 (Colo. 2010). When construing eminent
domain statutes, “[w]e construe such statutes narrowly and resolve
ambiguities in favor of the condemnee landowner.” Id.¶ 30 As relevant here, section 38-1-118 provides that
14
[a]ny witness in a proceeding under articles 1
to 7 of this title, in any court of record of this
state wherein the value of real property is
involved, may state the consideration involved
in any recorded transfer of property, otherwise
material and relevant, which was examined
and utilized by him in arriving at his opinion,
if he has personally examined the record and
communicated directly and verified the amount
of such consideration with either the buyer or
seller. Any such testimony shall be admissible
as evidence of such consideration and shall
remain subject to rebuttal as to the time and
actual consideration involved and subject to
objections as to its relevancy and materiality.
(Emphasis added.)
B. Analysis
¶ 31 Before the Colorado Rules of Evidence were adopted, section
38-1-118 was enacted to allow witnesses to testify about the value
of real property based on evidence that would have been
inadmissible under the hearsay rule in effect at that time. Denver
Urb. Renewal Auth. v. Huyatin, 40 Colo. App. 559, 562, 583 P.2d
296, 299 (1978); see also City of Denver v. Quick, 108 Colo. 111,
116-17, 113 P.2d 999, 1002 (1941) (concluding that an appraisal
witness’s testimony in a condemnation case on comparable sales
data was inadmissible hearsay evidence). The plain language of
section 38-1-118 provides for the admission of testimony on the
15
value of comparable sales in a condemnation case when (1) the
witness personally examined the record of the recorded transfer of
the subject property; and (2) the witness directly communicates
with the buyer or seller of that property to verify the amount of
consideration. However, as discussed further below, nothing in the
language of section 38-1-118 directly addresses the exclusion of
evidence of comparable sales even though the section is not a
vehicle for the admission of evidence of comparable sales unless the
conditions are met.
¶ 32 A division of this court considered the admissibility of
comparable sales that were not verified in compliance with section
38-1-118. In Huyatin, the division found that four out of the
appraiser’s six comparable sales were inadmissible because the
appraiser did not personally verify the sale price with either the
buyer or seller and the court’s decision to admit the unverified sales
was reversible error. 40 Colo. App. at 562, 583 P.2d at 299. Thus,
the division held that comparable sales not verified in compliance
with section 38-1-118 are inadmissible hearsay evidence. See id.¶ 33 However, Huyatin was decided before the Colorado Rules of
Evidence were adopted in 1979 and liberalized the admission of
16
hearsay evidence. We must, therefore, determine whether the
hearsay exceptions under CRE 803 apply to the admission of
comparable sales that were not verified in compliance with section
38-1-118. We conclude, for two reasons, that the hearsay
exceptions in the rules of evidence apply to the admission of real
property values in a condemnation case.
¶ 34 First, hearsay is inadmissible except as provided by the rules
of evidence or by statute. CRE 802. Thus, section 38-1-118 is not
the only method of admitting comparable sales data. For example,
CRE 803(8) provides that,
[u]nless the sources of information or other
circumstances indicate lack of
trustworthiness, [the admission of] records,
reports, statements, or data compilations, in
any form, of public offices or agencies, setting
forth (A) the activities of the office or agency, or
(B) matters observed pursuant to duty imposed
by law as to which matters there was a duty to
report [is permitted].
¶ 35 CRE 803(8) is, therefore, a subsequently adopted independent
and alternative method to section 38-1-118 for the admission of
hearsay evidence. See Margenau v. Bowlin, 12 P.3d 1214, 1217
(Colo. App. 2000) (finding C.R.C.P. 32 as another method for
admitting deposition testimony in addition to former testimony
17
exception to the rule against hearsay). Where, as here, a witness’s
testimony on the value of real property is based on public records
from an agency that has a duty to record and report transfers of a
real property, evidence of the value of that property is admissible
under CRE 803(8).
¶ 36 Second, “[w]e acknowledge that in the event of a conflict
between a statute concerning a matter of substantive import and a
rule of evidence, the statute will prevail over the rule.” Montoya v.
People, 740 P.2d 992, 996 (Colo. 1987); see also Town of Red Cliff v.
Reider, 851 P.2d 282, 284 (Colo. App. 1993) (“[T]o the extent that
the statutory procedures [in eminent domain proceedings] differ
from the procedures under the civil rules, the statute, not the rules,
govern [sic].”). However, we do not read section 38-1-118 and CRE
803(8) as conflicting with each other.
¶ 37 Nothing in section 38-1-118 directly precludes the admission
of evidence. Section 38-1-118 does not provide that the evidence is
admissible only if the witness has personally examined the record
and communicated with the buyer or seller to verify the amount of
the sale. Nor does section 38-1-118 provide that it is the exclusive
method of admitting evidence of comparable sales. Rather, similar
18
to the hearsay exceptions under the rules of evidence, the statute
provides for the admission of evidence that might otherwise be
inadmissible hearsay. Thus, we conclude from the plain language
that the General Assembly did not intend for section 38-1-118 to
have preclusive effect notwithstanding an alternative method of
introducing evidence of comparable sales.
¶ 38 CORE contends, however, that CRE 1101(e) precludes the
application of the rules of evidence to admit evidence of comparable
sales. Under CRE 1101(e), the Colorado Rules of Evidence apply in
special statutory proceedings to the extent that matters of evidence
are not provided for in the statute governing procedures in the
statutory proceeding. In cases applying CRE 1101(e), our supreme
court has found that rule pertains only to the extent that the rules
of evidence are in conflict with the statutory proceedings. See
Pruett v. Barry, 696 P.2d 789, 794 (Colo. 1985) (The rules of
evidence “apply in ‘special statutory proceedings’ . . . to the extent
that they are not in conflict with statutory requirements for such
proceedings.”) (emphasis added). Further, a division of this court
applied CRE 1101(e) because a statutory provision explicitly
prohibited the admission of evidence. See Uptain v. Huntington Lab,
19
Inc., 685 P.2d 218, 221 (Colo. App. 1984) (“The Colorado Rules of
Evidence, however, are not applicable if there is a specific statutory
provision under a special statutory proceeding in effect which
prohibits the admission of evidence.”) (emphasis added), aff’d, 723
P.2d 1322 (Colo. 1986). We have concluded, for the reasons stated
above, that CRE 803(8) and section 38-1-118 are not in conflict
with each other and that section 38-1-118 does not directly prohibit
the admission of evidence.
¶ 39 Accordingly, we conclude that the trial court erred by
excluding evidence of the comparable sales that Owen did not
directly verify with the buyer or seller based on its erroneous
finding that comparable sales data in a condemnation case are only
admissible under section 38-1-118.
C. Harmless Error
¶ 40 Having concluded that the trial court erred by excluding the
unverified comparable sales, we must determine whether the error
warrants reversal. We conclude that it does not.
¶ 41 We review errors in evidentiary rulings in civil cases for
harmless error. C.R.C.P. 61. Under this standard, we will not
disturb a judgment unless a court’s error affected the substantial
20
rights of the parties. Id. An error affects a substantial right only if
“it can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of
the trial itself.” Bly, 241 P.3d at 535 (quoting Banek v. Thomas,
733 P.2d 1171, 1178 (Colo. 1987)).
¶ 42 Freund contends that the exclusion of the unverified
comparable sales was not harmless because Owen’s credibility was
diluted. However, based on the record before us, we conclude that
the exclusion of this evidence did not substantially influence the
outcome of the case.
¶ 43 Owen, like the other appraisers, testified about his experience
and qualifications as an appraiser and he was qualified as an expert
in appraisal work. Both Owen and Foster used the comparable
sales method but they arrived at different per-acre values. The jury
awarded Freund $33,300 for compensation of the condemned
property. The award matches Foster’s estimated value for
compensation of the condemned property, which was based on a
higher per-acre value than Owen’s estimated value. Thus, it does
not appear that excluding comparable sales offered to support
21
Owen’s estimated value of the condemned property disadvantaged
Freund.
¶ 44 In addition, the jury heard testimony from both Foster and
Owen about the percentage of lost value to the condemned
property. Owen disagreed with Foster’s 50% loss of value and
opined that the condemned property lost 100% of its value even
though, as he acknowledged, Freund could still use the condemned
property because the nonexclusive easement was located within the
county’s building setback. It is doubtful the excluded comparable
sales would have bolstered Owen’s opinion about the percentage
loss of value.
¶ 45 Finally, Foster and Earley opined that there were no damages
to the residue, while Owen believed that the biggest impact of the
condemnation was on the residue. The jury’s award of $50,000 in
damages to the residue suggests Owen’s opinion that there was
damage to the residue was persuasive.
¶ 46 Under these circumstances, we conclude that the trial court’s
evidentiary error was harmless.
IV. Conclusion
¶ 47 The judgment is affirmed.
22
JUDGE FOX and JUDGE GOMEZ concur.
23