Opinion
NO. 09-10-00475-CV
02-23-2012
DENBURY GREEN PIPELINE-TEXAS, LLC, Appellant v. STAR-L LAND COMPANY; GLEN OLIVER, AS INDEPENDENT CO-EXECUTOR OF THE ESTATE OF JOSEPH A. BURKE; JANE WHITFIELD, AS INDEPENDENT CO-EXECUTOR OF THE ESTATE OF JOSEPH A. BURKE; AND DUANE GAULT, AS INDEPENDENT CO-EXECUTOR OF THE ESTATE OF JOSEPH A. BURKE, Appellees
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. 20129
MEMORANDUM OPINION
Denbury Green Pipeline-Texas, LLC appeals from a final judgment awarding damages in the amount of $444,587 in a condemnation proceeding. Denbury asserts one issue on appeal. We affirm the trial court's judgment.
In March 2009, Denbury filed a condemnation action seeking to condemn an easement across real property owned by Star-L Land Company. Following a special commissioner's hearing, an award was issued, and Star-L timely objected to the award and converted the administrative condemnation proceeding into a judicial proceeding. Prior to trial, Denbury filed a motion in limine requesting that the trial court restrict Star-L's mention of evidence regarding "unaccepted offers to purchase the property because unaccepted offers are not competent evidence of fair market value." While the record does not contain a signed order on the motion in limine, it appears that the trial judge denied this request.
At trial, Star-L called Arthur Longron, owner of Star-L, as its first witness. During Longron's testimony, the following exchange occurred:
Q. I want to talk a little bit about the history of the property and what's happened to the market of the property just in terms of what you have been offered. You have had offers on that property, haven't you?Denbury's counsel did not seek a running objection. Thereafter, Longron testified that Randy Hebert made two offers on the property, first for $325,000 and then for $350,000. Longron testified that his father received an offer from Sonic to purchase the property for $325,000. During the cross-examination of Longron, Denbury's counsel asked Longron whether he had received an offer from an adjacent landowner who wished to sell his tract of land. After Longron testified that he had received this offer, Denbury's counsel then asked at what price the landowner had offered to sell the property per acre. Longron testified that the landowner offered to sell him the property for $30,000 per acre, but Longron did not accept the offer.
A. Correct.
Q. Tell me what has been offered to you on the corner property and who offered that to you?
[DENBURY'S COUNSEL]: Your Honor, I'm going to object to any evidence that relates to unaccepted offers. They are not evidence of anything.
THE COURT: It's overruled.
Star-L's appraisal expert, James Timothy Archibald, testified about the sales and market data he considered in rendering his valuation opinions. Archibald testified that in appraising the property, among other factors, he also considered offers to purchase the property. He testified that he spoke to Hebert about his offers to purchase the property and his intended use of the property. Specifically, in explaining how he determined the damages in this case, Archibald testified he considered the offers for $325,000 and $350,000. Counsel for Denbury did not object to Archibald's testimony related to the unaccepted offers to purchase the property until the end of Archibald's testimony when the testimony was already in evidence without objection. Specifically, Denbury objected when Star-L's counsel questioned Archibald on the importance of offers in his calculation of market value. The court overruled Denbury's relevance objection. Again, Denbury did not request a running objection. On re-cross examination, Archibald again testified that he spoke to Hebert and Hebert told him he offered $350,000 for the property.
During cross-examination, Denbury's expert, Brandon Hodge, also testified without objection, that he had considered the unaccepted offers in his evaluation, but ultimately determined that they did not affect his overall valuation because he did not believe the offers met the requirements of market value or the definition of highest and best use.
PRESERVATION OF ERROR
On appeal, Denbury asserts that the trial court abused its discretion in admitting evidence of unaccepted offers to purchase property. Star-L responds that Denbury failed to preserve its objections to the disputed evidence. Star-L argues that Denbury waived its objections to the offer evidence when it did not object to the testimony at trial of Star-L's expert witness, Archibald, when he testified as to the unaccepted offers. Star-L also argues that Denbury waived its objections by failing to object to the testimony of its own witness, Hodge, on the issue of unaccepted offers.
To preserve an issue for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. Tex. R. App. P. 33.1(a). The general rule is that error in the admission of testimony "is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection." Volkswagen of Am. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). However, a party does not waive its objection by taking defensive steps such as cross-examining the witness concerning matters previously admitted over objection. Roosth &Genecov Prod. Co. v. White, 262 S.W.2d 99, 104 (Tex. 1953), overruled on other grounds by Burk Royalty Co. v. Walls, 616 S.W.2d 911, 925 (Tex. 1981).
One way a party may satisfy Rule 33.1(a) is by making a running objection. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242-43 (Tex. App.—Corpus Christi 1994, writ denied); Commerce, Crowdus & Canton, Ltd. v. DKS Constr., Inc., 776 S.W.2d 615, 620 (Tex. App.—Dallas 1989, no writ). However, a running objection generally will only preserve an objection in those instances where similar evidence is elicited from the same witness. See City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App.—Fort Worth 1988, writ denied); see also Badger v. Symon, 661 S.W.2d 163, 164-65 (Tex. App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.); City of Houston v. Riggins, 568 S.W.2d 188, 190 (Tex. Civ. App.—Tyler 1978, writ ref'd n.r.e). Thus, when the same evidence is offered through a different witness, the objecting party must repeat the objection or risk waiving it. See Holland, 748 S.W.2d at 113-14. One circumstance when a running objection may be an effective objection as to all evidence sought to be excluded is when trial is to the court and not to a jury, and the objection was clearly made to the court. Commerce, Crowdus & Canton, 776 S.W.2d at 620. The Corpus Christi Court of Appeals has held that a
determination of whether a prior objection is sufficient to cover a subsequent offer of similar evidence depends upon a case-by case analysis, based on such considerations as the proximity of the objection to the subsequent testimony, which party has solicited the subsequent testimony, the nature and similarity of the subsequent testimony as compared to the prior testimony and objection, whether the subsequent testimony has beenAtkinson Gas Co., 878 S.W.2d at 243.
elicited from the same witness, whether a running objection was requested or granted, and any other circumstances which might suggest why the objection should not have to be reurged.
Denbury argues that it preserved error regarding the admissibility of the evidence of unaccepted offers through its motion in limine and its objection to "any" evidence of unaccepted offers when the evidence was first introduced at trial during Longron's testimony. Denbury argues that "[b]y using the term 'any,' it is further clear he intended said objection to attach to all attempts by Star-L to introduce evidence of unaccepted offers."
It is well established that "a trial court's ruling on a motion in limine does not preserve error." Prati v. New Prime, Inc., 949 S.W.2d 552, 555 (Tex. App.—Amarillo 1997, writ denied). However, Denbury argues that its objection to "any evidence" is essentially a running objection and analogizes this case to Volkswagen of America. Denbury misses a key distinguishing factor in Volkswagen of America. In Volkswagen of America, the jury reviewed a videotape of a local television news crew's interview of a man at the accident scene. Volkswagen, 159 S.W.3d at 906. The man refused to give his name or allow his face to be shown on camera. Id. Volkswagen argued that the statements on the video were inadmissible hearsay. Id. In response to an argument that Volkswagen waived its objection to the video when it failed to object to the live testimony of the television reporter, during which the reporter recounted her conversation with the witness, Volkswagen argued it had a running objection to all references to the unidentified witness's testimony. Id. at 907. Volkswagen relied on its pretrial objection to showing the videotape, or referring to the witness, or referring to what the witness may or may not have seen at the accident scene. Id. While the trial court denied the pretrial objection, it "expressly recognized Volkswagen's running objection to the evidence." Id. The Texas Supreme Court found that because Volkswagen identified the source of the objectionable testimony, the subject matter of the witness's testimony and the ways the testimony would be before the jury, prior to disclosure to the jury, Volkswagen's running objection preserved the complaint not only to the video of the unidentified witness, but also to the reporter's testimony concerning what the witness said to her. Id.
Counsel in Volkswagen of American expressly obtained a running objection. The record in that case reflected that the court understood that the party was seeking a running or continuous objection to that material. In this case, neither Denbury nor the court referenced the dispensation of a running objection. Moreover, while it may be clear that Denbury objected to the unaccepted offers during Longron's testimony, there is no indication in the record that Denbury made the court aware of the various sources of the objectionable testimony or the ways this testimony would be before the jury. Denbury argues in its brief that Archibald's "entire testimony was based upon the objectionable evidence" and that the "documentary evidence" introduced during his testimony "was simply a summary of the unaccepted-offer testimony." There is no indication in the record before us that Denbury made the trial court aware of the extent to which the objectionable evidence would be placed before the jury when it made the single objection during Longron's testimony.
Denbury also looks for support in two older cases out of this Court, namely Estate of Brown v. Masco Corp., 576 S.W.2d 105, 106 (Tex. Civ. App.—Beaumont 1978, writ ref'd n.r.e.) and State v. Lock, 468 S.W.2d 560, 562 (Tex. Civ. App.—Beaumont 1971, writ ref'd n.r.e.). In Estate of Brown, the objecting party expressly requested and was granted a continuing objection to the complained-of evidence. 576 S.W.2d at 106-07. In State v. Lock, the trial court also expressly allowed "'a running bill'" with respect to the objectionable evidence. 468 S.W.2d at 563. Here, Denbury never requested a running objection and we decline to hold that its use of the term "any" within its objection was sufficient to apprise the court and all parties of the scope of its objection.
Denbury also likens its case to Discovery Operating, Inc. v. BP America Production Company. 311 S.W.3d 140 (Tex. App.—Eastland 2010, pet. denied). However, the appellate court in that case was dealing with the preservation of objections to evidence contained within the testimony of a single witness. Id. at 166-67. Whereas, in this case, Denbury asserted its objection toward the beginning of the testimony of Longron, but then failed to object to Archibald's testimony, which Denbury claims was based entirely on the objectionable evidence. Denbury also failed to object during Hodge's testimony.
We find City of Fort Worth v. Holland instructive in the resolution of this case. In Holland, the court found that the relevant testimony came from three witnesses as well as documentary evidence, and that the City should have repeated its objections, and without timely objections, the City waived any error. 748 S.W.2d at 113-14. The Fort Worth court explained:
We recognize there is a line of cases expressing, as a general rule, that a party making a proper objection to the introduction of testimony of a witness, which objection is overruled, may assume that the judge will make a similar ruling as to other offers of similar evidence and is not required to repeat the objection. However, we believe that the rule expressed in Crispi and cases citing Crispi as authority is primarily limited to those instances where the similar evidence is elicited from the same witness.Holland, 748 S.W.2d at 113 (citations omitted). In this case, testimony related to the unaccepted offers came in through documentary evidence, as well as through three different witnesses—Longron, Archibald and Hodge. Denbury was required to repeat its objections or obtain a running objection from the court regarding the unacceptable evidence that made clear the scope of the objection. Any error in the admission of the evidence is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Accordingly, we conclude that Denbury failed to timely object to the evidence and, therefore, failed to preserve error.
AFFIRMED.
__________________
CHARLES KREGER
Justice
Before Gaultney, Kreger, and Horton, JJ.