Good River Farms, LP v. TXI Operations, LP et al

Filing 40

ORDER DENYING 34 Motion to Strike Plaintiff's Appraisal Report. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GOOD RIVER FARMS, LP,
Plaintiff,
v.
TXI OPERATIONS, LP and MARTIN
MARIETTA MATERIALS, INC.,
Defendants.

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1:17-CV-1117-RP

ORDER
Before the Court is Defendants’ Motion to Strike Plaintiff’s Appraisal Report. (Dkt. 34).
Plaintiff Good River Farms, LP (“Good River Farms”), which alleges that Defendants’ neighboring
reservoir failed and flooded Good River Farms’ pecan farm, hired an appraiser, W.F. Smith
(“Smith”), to assess the diminution in the farm’s value. (Am. Compl., Dkt. 7, at 3–4; Mot., Dkt. 34,
at 1). Defendants now ask the Court to strike Smith’s expert report because his opinions are
irrelevant. (Mot., Dkt. 34, at 1).
When Good River Farms amended its complaint, it removed a claim for permanent market
value damages. (Id. at 1–2; Resp., Dkt. 36, at 2). Smith’s report seeks to appraise the value of the
farm before and after it was flooded. (Appraisal, Dkt. 34-1, at 2). His appraisal factors in “permanent
damage” due to Good River Farms’ duty to disclose the flood to future buyers, as well as the “fact
[that] the property is potentially subject to excessive inundation events in the future caused by the
dam” owned by Defendants. (Id.). The appraisal’s estimate of the permanent damages to the farm
carries significant uncertainty, with estimates varying by $700,000. (Id. at 3). Defendants argue that
an appraisal based on permanent market-value diminution is irrelevant now that Good River Farms
has dropped its claim for permanent market-value damages and ask that Smith’s report be stricken
so that Defendants may be spared the expense of a rebuttal expert. (Mot., Dkt. 34, at 2–3).
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Good River Farms agrees that it dismissed its claim for permanent market-value damages
but respond that Smith’s report is relevant nonetheless. (Resp., Dkt. 36). Good River Farms still
seeks a permanent injunction, (Am. Compl., Dkt. 7, at 11), for which they will need to prove the
existence of an imminent threat and irreparable injury. Jim Rutherford Investments, Inc. v. Terramar Beach
Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The Court
agrees that Mr. Smith’s report is relevant to the appropriateness of injunctive relief. If it is true that
Defendants’ dam creates a risk of future flood damage that will drive down the value of Good River
Farms’ property, and if the amount of that damage is uncertain, then that would be a relevant to
whether Good River Farms is threatened with irreparable injury.
Defendants’ argument to the contrary does not convince the Court otherwise. Defendants
argue that the appraisal actually undermines Good River Farms’ case for an injunction because Smith’s
damages estimate suggests that any future harm is compensable by damages. (Reply, Dkt. 37, 2). In
taking that position, however, Defendants concede the appraisal’s relevance, as a fact that
undermines a legal argument is necessarily a relevant fact, even if it is not the sort of relevant fact
Good River Farms should want found.
Accordingly, IT IS ORDERED that Defendants’ Motion to Strike Plaintiff’s Appraisal
Report, (Dkt. 34), is DENIED. The parties shall confer about an appropriate extension for any
deadlines affected by this order and seek leave for any such extension, agreed or otherwise.
SIGNED on July 29, 2019.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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