## IN THE SUPREME COURT O F TEX AS

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. 14-0193

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### C A F F E 

### R IB S 

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### , P E T IT IO N E R 

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v . 

### S T A T E O F 

### T E X A S 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

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Argued Septem ber 22, 2015

J U S T I C E D E V I N E delivere d the opinion of the Court. This condemna tion case require s us to revie w the trial co u rt ’s exclusion of evidenc e

con c e r n in g th e g o v e r

n me n t’s role in delay

ing the condemne d proper ty ’s environmenta l clea

nup prior
to taking

. At trial, the g overnme nt prese nted testimony that it would take eig ht y ear s of clea nup to 1 rende r the proper

ty marke table and that the condemne d p ro p er t y ’s value should be substantially discounted on that basis. I n rebuttal, the condemne e offe red testimony from two witnesses that the
g overnme nt’s condemna tion projec t delay ed the proper ty ’s clea nup. Howeve r, at the g overnme nt’s
reque st, the t rial court excluded that testimony . The c ourt of appe als aff irmed the e x clusion. 468

W e h a v e n e v e r a d d r e s s e d t h e a d m i s s i b i l i t y o f e v i d e n c e c o n c e r n i n g e n v i r o n m e n t a l c o n t a m i n a t i o n i n a 1 c o n d e m n a t i o n p r o c e e d i n g . H o w e v e r , t h e a d m i s s i o n o f t h e c o n t a m i n a t i o n e v i d e n c e i n t h i s c a s e h a s n o t b e e n c h a l l e n g e d b y t h e c o n d e m n e e i n e i t h e r a p r i o r a p p e a l o r t h i s c u r r e n t a p p e a l

. T h e r e f o r e , l i k e t h e c o u r t o f a p p e a l s i n t h e p r i o r a p p e a l , w e n e e d n o t a n d d o n o t d e c i d e i t s r e l e v a n c e . S e e 3 2 8 S

. W

. 3 d 9 1 9 , 9 3 0 n . 5 ( T e x . A p p . — H o u s t o n [ 1 4 t h D i s t

. ] 2 0 1 0 , n o p e t

. ) ( C a f f e I )

.S.W .3d 94 (Tex. App.—Houston [14t h Dist.] 2014) (mem. op.)

. We hold that the trial court’s

exclusi o n wa s an abuse of discretion, and further hold that the exclusion was harmful beca use it allowed the g overnme nt to use an eig ht-y ear holding period to reduc e the proper ty ’s value without allowing the jury to consider the role the g over n m en t p l ay ed in cre ating that holding period. Acc ording ly , we r ever se the c ourt of appe als’ judg ment and re mand the ca se for a new trial. I. F actual Background and Proc edural History

A. The P ropert y Caffe Ribs , I n c. (Caff

e) purcha sed the condemne d proper ty from Paul Revere Var iable Annuity I nsuranc e Company (Rever e) in 1 9 9 5

. At t hat time, Revere was evalua ting the environmenta l c ondition of the proper ty

. Soil and g roundwa ter sampling conducte d at the re quest of Revere and a previous owner , Weatherf ord U.S., I nc. (Weather ford) , indicated that the proper ty

was contaminated. T he source and the extent of that contamination, howeve r, wer e unknown. Given these fac ts , Caffe and Revere ag ree d that Revere would continue its evalua tion of the proper ty ’s environmenta l condition afte r closing and would take such action as it dee m ed nece ssary to

reme diate the c ontamination. I n 1996, Revere and Weatherf ord ag re ed to cooper ate in evalua ting and reme diating the
proper ty ’s contamination. By Fe bruar y 2000, Revere and Weatherf ord had identified the source of the contamination and place d the proper ty into the Texas Commi ssion on Environmental Quality ’s (TCEQ’s) Voluntary

Cleanup Prog ram. 2

P r i o r t o 2 0 0 1 , t h e T C E Q w a s k n o w n a s t h e T e x a s N a t u r a l R e s o u r c e C o n s e r v a t i o n C o m m i s s i o n . 2 2After the condemne d proper ty enter ed t h e Vo luntary Cleanup Prog ram, Revere and Weatherf ord beg an reme diation, removing more than 460 cubic y ards of contaminated soil in 2001. The TCEQ, howeve r, wasn’t satisfied that the extent of the contamination had been fully delineate d and reque sted that Revere and Weatherf ord do so. I n response to the TCEQ’s reque st, Revere and Weatherf ord had a dditional soil and g roundwa ter sampling perf ormed. I n J anuar y 2003, the S tate noti fied Caffe Ri bs that it intended to condemn the property , or at least part of it, in connec tion with the Texas Depa rtment of Transpor t at i o n ’s projec t to expand I nterstate 10. I nitially , the State’s reve lati o n d i d not aff ect Revere and Weatherf ord’s eff orts to delin ea t e an d reme diate the contamination. I n the months following the reve lation, additional
g roundwa ter sampling was conducte d, and additional co n ta mi n a te d s o il w a s remove d. By Dec ember 2003, Revere and Weatherf ord believed that the contamination had been fully delineate d, and filed

an Affe cted Property Assessment Report (APAR) with the TCEQ outlining the extent of the contamination. I n J uly 200 4 , t h e TCEQ responde d to Revere and Weatherf ord’s APAR with a reque st that at least four additional g roundwa ter monitoring wells be installed to more fully delineate the contamination. Revere and Weatherf

ord, howeve r, wer e not able to comply with the TCEQ’s reque st due at least in part to the State’s impending condemna tion. As part of the State’s con v er sion of Caffe ’s
proper ty into a stormwater detention pond, the State reque sted all exis ting g roundwa ter monitoring wells on the proper

ty be plugg ed and abandone d, and any new wells be installed afte r construction

was c omplete. I n late 2004, Revere and Weatherf ord filed an amende d APAR that refle cted these fac ts. They also filed a Response Ac t i o n P l an (“RAP”) containing their proposals for fully

3reme diating the proper ty ’s contamination. The TCEQ dec lined to approve either, howeve r, based

on its prior unsatisfied reque st for at least four additional g roundwa ter monitoring wells. The TCEQ also noted that the R AP co u ld not be approve d beca use the exis ting network of g roundwa ter monitoring wells was to b e re m o v ed as part of “site construction activities.” Acc ording to the TCEQ, Revere and Weatherf ord’s proposed response —a “plume manag ement zone”—re quired that the zone’s networ

k of monitoring w ells be in place befor e TCEQ a pproval. B. Caffe I I n May 2005, the State initiated statutory condemna tion proce eding s ag ainst Caffe

. Special commissioners wer e then appointed to value the proper ty

. Caffe and the State both objected to the specia l commissioners’ valuation, and the case proce eded to trial. At trial, the State arg ued that the
proper ty ’s marke t value was signific antly affecte d by potential environmenta l liability and

reme diation costs, but succe ssfully excluded Caffe ’s pro ff er re d evidenc e that Revere and Weatherf ord wer e responsible for such liability and costs. The court of appea ls conclude d that the exclusion was harmful and rema nded the case for a new trial. Caffe I , 328 S.W .3d at 931–33. This
appea l conce rns the sec ond trial. C. Caffe II Be fore retria l, the S tate desig nated Ashby McMullan as its environmenta l expert to testify that, at the time of taking , the nature and extent of the contamination wer e uncer tain and that it would take eig ht y ear s to delineate the contamination, complete clea nup, and obtain reg ulatory
approva l or closure, as evidenc ed by a conditional cer tificate of completion. I n conjunction with Mr. McMullan’s testimony , the State desig nated David Dominy as its appra isal ex p er t t o testify that,

4g iven the property ’s environmenta l condition, it would not be marke table for eig ht y ear s, and

acc ording ly its value shou l d b e d iscounted at an 18% rate over that eig ht-y ear holding period. Acc ording to Dominy , the proper ty , when clea

n, would be worth $3,154,150, but the prese nt value, discounted at 18% ove r eig ht y ear s, was $803,431. For its part, Caffe desig nated Richard Bost, its environmenta l expert, and Vince Rorick, the former TCEQ projec t m an age r re sponsible for overse eing the proper ty ’s clea nup, to testify that, beg inning in 2004, the State’s reve lation of the proposed future use of the proper ty as a stormwater detention pond cause d delay s in prog ressing toward reg ulatory closure, and that , as of 2004, the
proper ty could have rec eived reg ulatory closure in as littl e as o n e y ea r, but for the chang e in proposed future use. Caffe desig nated Rudy Robinson as its appra isal ex p er t t o t es tify that the
proper ty ’s environmenta l condition did not war rant an adjustment to its marke t v a lu e o f $ 9

. 9 mi ll io n . Caffe also desig nated Da

vid Klein, a commercial real estate develope r, t o testify that the property could be de veloped in its curr ent condition. The State filed a pre- trial motion to exclude all testimony conce rning its role in delay ing the
proper ty ’s reme diation on the g rounds that such testimony amounted to a claim for “announc ement damag es” barr ed by W

estgate Ltd. v. State , 843 S.W .3d 448 (Tex. 1992), and that such evidenc e was unreliable

. The S t at e al s o fi led a pre- trial motion in limine on the same subject. At the pre- trial confe renc e, the trial court g rante d the State’s motion, concluding that exclusion was require d by the “proje ct influenc e” r

ule. At t ri al , M cMullan testified that Revere and Weatherf ord’s APARs and RAP wer e not approve d by the TCEQ beca use Revere and Weatherf ord had not delineat ed the extent of the

5contamination. He conclude d that the most probable timeline for obtaining reg ulatory closure was

eig ht y ear s, but conce ded that it could be shorter if Revere and W ea t h er ford soug ht to pursue ag g ressive response actions. Acc ording to McMullan, the four steps that rema ined to be completed to obta in r eg ulatory closure wer e: (1) TCEQ approva l of an APAR; (2) TCEQ approva l of a RAP; (3) implementation o f the RAP; and (4) completion of a Response Action Completion Report. Dominy testified that the proper ty ’s value should be signific antly discounted over an eight-y ear holding period. He justified the extended holding period with McMu l l an ’s testimony , as well as Revere and Weatherf

ord’s lack of “re al financ ial motivation or incentive to g o start spending money to do a clea

n-up.” To bolster the testimony

of their witnesse s, the State elicited testimony from B ost, Rorick, and Klein that Revere and Weathere ford’ s APAR s an d RAP wer e not approve d by the TCEQ, beca use Revere and Weatherf

ord had not installed the four additional g roundwa ter monitoring wells the TCEQ had reque sted in J uly 2004 to more fully delinea t e t he extent of the contamination. Howeve r, t h e S t at e o b

jected when Rorick attempted to explain that “they wer en’t able to do that beca use of the fre ewa

y .” At the bench confe renc e, Caffe took the position t h at t h e S tate’s quest i o n ing opened the door for evidenc e conce rning the State’s role in delay ing the proper

ty ’s

reme diation. T h e trial court ruled that “[y ]ou can’ t open the door on projec t influence ,” and instructed Rorick “ not to go ther e.” Caffe made offe rs of proof of the testimony it would have elicited from Bost and Rorick. See T E X . R

. E V I D . 1 0 3(a) (2). At the trial court’s reque st, they wer e made as brief summaries. Id. at 103(c) . Bost’s pr oposed testimony was summarized as f

ollows:

6Mr. Bost would say , if he wer e allowed to testify , that at around 2004 when the State

told the TCEQ that this proper ty was go i n g t o b e used as a detention pond, that chang ed [] the comments and questions and require ments for the TCEQ’s reme diation of t his proper ty , [] bec au s e i t was removing the exis ting well network and requiring place ment of other wells. The TCEQ had said, hey , y ou can’ t do this until afte r the State’s detention pond projec t is d o n e. There fore , when the State is say ing, hey , y ou didn’t g et it d o n e b y t h e date of taking , Mr. Bost would say there was de lay cause d by

the projec t. Rorick’s proposed testimony was summarized simil arly

. I n connec tion with the Rorick offe r of proof, Caffe provided t he court with a copy of a Rorick affidavit t h at i t h ad attache d to a pre-trial motion. The aff

idavit stated, in rele vant part, that “[t] he State raised the issue of the detention pond construction plan with TCEQ staff prior t o 2 0 0 5 , ” and that reve lation “did aff ect timing of the administrative proc ess and the pending [Volunt ary Cleanup Prog ram] ag ree ment, causing delay .” The aff idavit also stated that, as of 2004, the proper ty could have rec eived a conditional cer tificate of prope rty

within one y ear , if reme diation was “a g g ressively pursued.” The jury deter mined the value of the proper ty to be $4,914,480. Caffe timely appea led the jury ’s verdic t, asser

ting that the trial court committed reve rsible err or by (among o t h er t h i ng s) excluding evide nce c oncer ning the State’s role in de lay ing the proper ty ’s reme diation. The c ourt 3 of appea ls a ffirme d, holding that “[e]ven if the trial court abused its discretion in e x cluding Bost’s and Rorick’ s proffe rre d testimony , the exclusion was harmless.” 468 S.W .3d at 111.

S p e c i f i c a l l y , C a f

f e c h a l l e n g e d t h e t r i a l c o u r t ’ s e x c l u s i o n o f t h e S t a t e ’ s a l l e g e d a d m i s s i o n s o n m a r k e t v a l u e i n 3 t h e s p e c i a l c o m m i s s i o n e r s ’ p r o c e e d i n g , a n d t h e a d m i s s i o n o f D o m i n y ’ s t e s t i m o n y o v e r i t s u n r e l i a b i l i t y o b j e c t i o n . W e l i m i t o u r d i s c u s s i o n t o t h e e x c l u s i o n o f e v i d e n c e c o n c e r n i n g t h e S t a t e ’ s r o l e i n d e l a y i n g t h e p r o p e r t y ’ s r e m e d i a t i o n b e c a u s e i t i s d i s p o s i t i v e . 7II. Analysi s

We revie w a trial court’s exclusion of evidenc e under the abuse of disc re t i o n s tandar d. Interstate Northborough P’ship v

. State , 66 S.W .3d 213, 220 (Tex. 2001) . A trial cour t abuses its discretion when it acts without reg ard for any g uiding rules. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1 9 85). I n this case , the trial court excluded the complained- of evidenc e under the g uise of the projec t-influence rule. Acc ording ly , that rule is the starting point of

our ana ly sis. A. The P roje ct- Inf luence Rule The T ex as Constit ution provides that “[n] o person’ s proper ty shall be taken, damag ed or destroy ed for

or applied to public use w ithout adequate compensation being made.” T E X . C O N S T . art. I , § 17. We have eff

ectua ted this constitutional imperative by requiring pay ment of the “mar

ket value” of the condemne d proper ty —that is, “the price whi ch t h e p ro p erty would bring when it is offe red f or sale by one who de sires, but is not oblig ated to sell, and is boug ht by one who is under

no nece ssity of buy ing.” City of Austin v. Cannizzo , 267 S.W .2d 808, 815 (T ex . 1 9 54). An impending condemna tion projec t, howeve r, can distort the value of proper ty

. See City of

Fort W orth

v. Corbin , 504 S.W .2d 828, 830-31 (Tex. 1974); Barshop v. City of Houston , 442 S.W .2d 682, 685 (Tex. 1969). The inflationary eff ects of such a projec t are ref err ed to as “pro

j ec t en h ancement,” Corbin , 504 S.W .2d at 831, while the defla tionary eff ects are ref

err ed to as “conde mnation blight,”
or, perha ps more appropr iately , projec t diminis hment. Thurow v. City of Dallas , 499 S.W .2d 347, 348-49 & n.1 (Tex. Civ. App.—Dallas 1973, writ ref ’d n.r.e). Since neither projec t enhanc ement

nor projec t diminis hment ref lects true “mar

ket v al u e”

— that is, what a willing buy er would pay a
8willing seller under ma rket c onditions—t he proje ct-influenc e rule has evolve d to ensure that such components of value are remove d from the marke t-value deter mination. See, e.g., Co r b i n , 504 S

. W

. 2d at 830; Barshop , 442 S.W .2d at 686. The rule thus provides that any chang e in proper t y value that r esults from the g overnme nt manifesting a def inite purpose to take pr operty as par t of a
g overnme ntal project must be excluded from an awa rd of adequate compensa tion. Corbin , 504 S.W .2d at 831. The rule ensure s that the condemne e is made whole, not place d in either a better or worse position than he or she would have enjoy ed had the re be en no conde mnation. Id. Whil e the pr oject-influe nce r ule may be neatly stated, i t is not alway s so neatly applied, as

our prec edent rec o gn i z es . We have previously instructed trial courts that they , not the jury , must make the preliminary deter minations that the evidenc e wa rr an ts application of the rule and, if applicable , the date the g overnme nt ma nifested a definite purpose to take the condemne d proper ty ( i.e., the date afte r which any chang e in value attributable to the g overnme n t al p ro j ec t should be disreg arde d). Corbin , 504 S.W .2d at 831. We have not, howeve r, instructed trial courts on the exact

manner in which the projec t’s influence on the condemne d propert y ’s value must be corr ecte d, beca use that depends on t h e fac ts of the particula r case . Whil e we have long rec og nized the pref era ble course to admit evidenc e, un der proper instruction, to permit the jury to eliminate the distorting effec t of t he project, see, e.g., Morrow v. St. Louis, A. & T

. R

. C o . , 1 7 S.W 44, 44 (Tex. 1891), we have never fore closed use of an evidentiar y exclusion to eliminate the distorting eff ect of the projec t in an approp ri at e ca s e. We believe the use of a proper instruction, as opposed to an evidentiar y exclusion, is particula

rly appropr iate in case s like this, wher e pr o j ec t d i minishm ent i s implicated. I n such case s, the value of the condemne d proper ty , of course , ref

lects the defla tionary

9eff

ects of the g overnme nt’s projec t. I f th e co n demnee is unable to introduce evidenc e about that defla tion, it will be difficult, if not impossible, for the defla tion to be fac tored into the value of the
proper ty to arrive at an a

war d of “ma

rket va lue.” I n this case , the t rial court enfor ced the projec t-influence rule with a swee ping evidentiary exclusion. As just discussed, an evidentiar y exclusion is not an essential component of the projec tinfluence rule. I ndeed, in this case , the evidentiar y exclusion was antithetical to the rule’s substantive purpose of ensuring that the compensa tion awa rd did not ref

lect the defla tionary eff

ects of the g overnme nt’s projec t. As the United States Supreme Cou rt has observe d, “it would be manifestly unjust to permit a public authority to depre ciate pro p er t y v alues by a threa t of the construction of a g overnme nt projec t and then to take advanta g e of this depre ssion in the price which it must pay for the proper

ty when eventua lly condemne d.” United States v. Va. Elec. Power Co. , 365 U.S. 6 2 4 , 636 (1961) (citation and internal quotation marks omitted). Yet, the trial court’s evidentiar y exclusion allowed the State to do just that. I t allowed th e S t ate to use an eig ht-y ear holding period to devalue the proper ty , without allowing the jury to acc ount for the role the State’s condemna tion projec t play ed in that holding period. W e t h er ef ore conclude that the trial court abused its discretion in apply ing the projec t-influence rule. The projec t-influence rule require d the trial court to a dmit the evidenc e conce rning the State’s role in de lay ing the proper ty ’s reme diation for the very rea son the State soug ht, and the trial court order ed, its exclusion: the evidenc e was “an attempt to collect damag es for a decr ease in marke t value cause d by the public announce ment of the future de tention pond project.”

1 0B. Westgate

As an alterna tive g round to aff irm, the State asser

ts that the trial court’s exclusion was proper under this Court’s holding in W estgate , 843 S.W .3d 448. The State’s relianc e on W estgate is misplaced. I n W estgate , the g overnme nt commence d statutory condemna tion proce eding s in September 1988. 843 S.W .2d at 451. The condemne e then counter claimed for inverse condemna tion, seeking
to re co v er lost profits from the four- y ear period betwee n the announce ment of the condemna tion projec t and the g overnme nt’s actua l acquisition of the proper ty

. Id. I n essenc e, t h e condemne e

asser ted that the g overnme nt’s announce ment of its projec t amoun t ed t o a de facto taking of his
proper ty

. I n seeking to establish a de facto taking befor e the de jure taking identified by the statutory condemna tion proce eding , the condemne e soug ht to rec over conseque ntial damag es in the form of lost profits that otherwise would not have been rec overa ble. We reje cted the condemne e’s attempts
to do so, rec og ni z i n g t hat “publicly targ eting a proper ty for condemna

tion” in the future does not g ive rise to a de facto taking “unless ther e is some direc t restriction on use of the prope rty .” Id. at 453. We also rec og nized that the damag es soug ht by the condemne e wer e “noncompe nsabl e conseque ntial damag e[s] .” Id

. at 453 (citing Hubler v. City of Corpus Christ i , 564 S.W .2d 816, 821 (Tex. Civ. App.—Corpus C hristi 1978, writ ref’ d n.r.e.) ). Caffe neither contends that the announce ment of the projec t amounted to a de facto taking ,
nor otherwise seeks to rec over noncompensa ble conseque ntial damag es, such as lost profits. Caffe instead seeks to rec over the hy pothetical price t hat i ts proper ty would have broug ht on the date of the State’s d

e j u r e t aking, unaff

ecte d by the projec t. The projec t-influence rule, not W estgate , 1 1there fore , applies. Thurow , 499 S.W .2d at 348 n.1 (distinguishing projec t diminishment from a de

facto taking ). C. Reliability The State additionally asser ts as an alterna

tive g round for aff

irming that Bost and Rorick’s proff ere d testimony is unreliable , beca use it is contra dicted by the following “prove n fac ts”: that Revere and Weatherf

ord, not Caffe , had control over the timing of reme diation, and that, as of J uly 2004, Revere and Weather ford ha d not delineated the contamination, despite knowing about it f or fourtee n y ear s. We have in s t ru ct ed that “[w]hen expert testimony is involved, courts are to rig orously examine the validity of the fac ts and assumptions on wh i ch t h e testimony is based.” W hirlpool Corp. v. Camacho , 298 S.W .3d 631, 637 (Tex. 2009). When an ex pert’s opinion is predic ated on a particula

r set of fac ts, those fac ts need not be undisputed. Hous. Unlimited, Inc. Metal P r o ce s s i n g v. Mel Acres Ranch , 443 S.W .3d 820, 833 (Tex. 2015). An ex pert’s opinion is only unreliable if it is contra ry to actua l, undisputed fac ts. Burroug h s W ellcome Co. v. C

rye , 907 S.W .2d 497, 499 (Tex. 1995). I n this case , Bost and Rorick’s proff ere d testimony is not contra ry to actua l, undisputed fac ts. The g rava

men of their testimony is that the State’s proposed future use of t h e p ro perty as a stormwater detention pond and, specific ally , its require ment that the exis ting network of monitoring

we l l s be remove d and only repla ced afte r site construction, delay ed Revere and Weatherfo rd ’s attempts to delineate the contamination after TCEQ reque sted additional g roundwa ter monitoring wells be installed in J uly 2004. At m o s t, the State’s “prove d fac ts” sug g est that Revere and

1 2Weatherf

ord may bear some re s p o n s i b i l i ty for the delay in installing those wells. But it does not disprove B ost and Rorick’s testimony that the State also bea

rs some re sponsibili ty

. D. Harm fu l Error The trial c ourt’s er

ror in excluding e vidence of t he S tate’s role in delay ing the condemne d
proper ty ’s clea nup is reve rsible only if it probably cause d the rendition of an improper j udg ment. T E X . R. A P P . P. 44.1 (a )( 1 ), 61.1(a) (1). We have rec og nized the impossibi lity of establishing a specific test for deter

mining harmful err or, and thus have entrusted the matter to the sound discretion of the revie wing court. State v. Cent. Expressway Sign Assocs. , 302 S.W .3d 866, 870 (Tex. 2009). We have, however , explained that exclusion is likely harmless if the evidence was cumulative, or if the rest of the evidenc e was so one-sided that the err or likely made no differ ence . Id. I n contra st,

we have explained that exclusion is likely harmful if evidenc e is “cr ucial to a key issue.” Reliance Steel & Aluminum Co. v. Sev cik , 267 S.W .3d 867, 873 (Tex. 2008). The court of appea ls conclude d that the exclusion of the complained- of evidenc e was harmless beca

use it did not demonstrate that reg ulatory closure could have been obtained by the date of taking “but for” the State’s interfe renc e—an arg ument Caffe levied at trial. 468 S.W .3d at 110- 11. Whil e we may be inclined to ag ree with the court of appea ls on the narr ow point that reg ulatory closure could not have been obtained by the date of t aking , the complained- of evidenc e went far bey ond Caffe ’s arg ument that reg ulatory closure could have occur red by the date of taking if Revere and Weatherf

ord pursued ag g ressive response actions. I t went to the validity of the State’s eig ht-y ear holding period, which was cruc ial to the only issue befor e the jury —the proper

ty ’s value. The exclusion was thus harmful, beca use it allowed t h e State to use an eig ht-y ear holding period to

1 3reduc e the proper ty ’s value without allowing the jury to consider the role the State play ed in cre ating that holding pe riod. This harm was compounded by the State’s repe ated asser tions that Revere and Weatherf ord

wer e simply “try ing to s p en d as littl e money as possible” or “stalling ” in their clea nup of the
proper ty

. At the parties’ first trial, the State succe ssfully excluded all evidenc e conce rning Revere and Weatherf

ord’s responsibility for clea ning up the proper

ty

. The court of appea ls rec og nized that this exclusion “cr eate d a false impression that a potential buy er would have to shoulder the burden of addre ssing the contamination,” which probably cre ated an independe nt basis for the j u ry t o discount the proper

ty ’s valu e. Ca

f fe I , 328 S.W .3d at 932. At retria l, the State exploi ted the

ex cl u s ion of evidence conce rning the S tate’s role in delay ing the proper

ty ’s remediation to cr ea t e t h e same false impression: that Revere and Weatherf ord wer e not committed to clea ning up th e proper ty , and, conseque ntly , that a potential buy er would have to shoulder the burden of addre ssing the contamination. III. Conclusi on The trial court abused its discretion i n excluding evidenc e conce rning the State’s role in delay ing the condemne d proper ty ’s environmenta l clea

nup, whi ch went direc tly to the proper ty ’s marke t value, and the court of appea ls err ed in aff irming the exclusion. Acc ording ly , we reve rse the
court of appea ls’ judgme nt and rema nd the case to the trial court for a new trial in acc ordanc e with this opini on.

1 4________________________ J ohn P. Devine J ustice
Opinion delivere d: April 1, 2016

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