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Court admits expert testimony regarding restrictive covenants in public nuisance case

Posted on September 11, 2023 by Expert Witness Profiler

Carolyn Stone as the owner of a home within the Lakeview Homes Addition subdivision (Subdivision) in Houston, Texas alleged that the Defendants Harley Marine Services, Harley Marine Gulf, and Harley Channelview Properties (collectively Harley) were operating a commercial barge business that violated the Subdivision’s deed restrictions prohibiting commercial activity. Stone claimed that Harley’s conduct diminished her property value and constituted a nuisance. 

Peter Boecher had been chosen as an expert witness by Harley due to his expertise in matters related to land use and restrictive covenants to testify in this case regarding the current situation of these covenants in the subdivision. Stone designated rebuttal expert Mike Brubaker to testify on the same topics. Harley moved to exclude Brubaker’s testimony, arguing he was unqualified because he is not a land planner, citing failure to squarely rebut Boecher’s opinions as well as failure to identify the methodology which supported his opinion.

Real Estate Expert Witness

Mike Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

Peter Boecher is a highly experienced land planning and real estate consultant with over 35 years of expertise in areas including site selection, development feasibility, access planning, zoning, subdivision design, land ordinances, and eminent domain analysis. He holds the prestigious Counselor of Real Estate (CRE) designation, awarded to real estate professionals demonstrating the highest levels of competence and ethical standards. Boecher has been a certified planner with the American Institute of Certified Planners (AICP) since 1989, requiring continuing education to maintain this status. He is also a Registered Landscape Architect in Texas since 1981, which similarly necessitates ongoing continuing education.

In 2019, Boecher joined EHRA engineering firm as a Senior Planner and Real Estate Counselor. He previously served in Planning Director roles at multiple firms. A frequent presenter, he has delivered seminars on land use, eminent domain, and planning topics for legal continuing education. Boecher has extensive experience providing expert witness testimony via deposition, trial, mediation, and other means regarding land use, eminent domain, planning, and real estate matters in county, state, and federal courts.

Discussions by the Court

Harley argued that Brubaker should be excluded as an expert witness because he was not qualified since he is not a land planner. Harley asserted that Brubaker failed to properly rebut the opinions of their expert, Peter Boecher, who is a land planner. Harley also contended that Brubaker did not identify the methodology he used to reach his opinions.  Harley accused Brubaker of applying arbitrary classifications to the uses within the Subdivision, suggesting a lack of objectivity in his analysis. Harley asserted that the testimony of Brubaker lacked relevance and he faltered in accounting for “obvious alternative explanations.”

Judge Bray examined Brubaker’s background and experience in detail. He noted that Brubaker is a licensed real estate appraiser and broker with over 40 years of experience preparing neighborhood analyses. As part of these analyses, Brubaker inspected neighborhoods, reviewed land use, and examined deed restrictions. Judge Bray found these were the exact same types of tasks performed by Boecher. Although Brubaker is not a land planner, the Court determined he had the requisite expertise based on his professional experience.

Judge Bray also reviewed Brubaker’s report and found he directly rebutted the opinions offered by Boecher. Since the purpose of designating Brubaker was to provide rebuttal testimony, the Court found him qualified for this role.

Regarding methodology, Brubaker stated in his declaration that he performed his analysis consistent with the industry standard Fannie Mae Selling Guide. He explained this involved identifying neighborhood boundaries, characteristics, and land use through visual inspection and document review. The Court found Brubaker employed the same methodology as Boecher by touring the neighborhood, observing land use, and examining the deed restrictions. 

Harley failed to provide sufficient evidence or argument to support their claim that Brubaker’s testimony was unreliable or that he failed to gather sufficient facts or data. Additionally, it appeared that Harley did not adequately identify what they believed were “obvious alternative explanations” that Brubaker should have considered when providing his testimony.

Judge Bray determined Harley’s objections about Brubaker’s methodology went to the weight of his opinions rather than admissibility. The judge denied Harley’s motion to exclude Brubaker, finding him to be qualified and allowing his expert rebuttal testimony. Harley could raise specific objections at trial.

Moreover, Harley moved to exclude or limit Carolyn Stone’s testimony under Federal Rule of Evidence 701.

In her disclosures, Stone stated she would provide testimony about the value of her property under the Texas Property Owner Rule. Harley filed a motion asking the Court to limit Stone’s testimony to the parameters of this Rule. 

Judge Bray outlined the key requirements of the Texas Property Owner Rule. He stated the testimony must refer to market value of the property, have a basis beyond just the owner’s opinion, and can be substantiated through evidence of sales, appraisals, tax valuations, and other factors.

Since Stone had already agreed to testify as per the parameters of the Texas Property Owner Rule, the Court denied Harley’s motion as moot.


In conclusion, Judge Bray denied Harley’s motions to exclude the expert testimony of Brubaker and limit the testimony of Stone. The Court found Brubaker was qualified as a rebuttal expert based on his experience. The judge also declined to limit Stone’s testimony since she had already agreed to follow the Texas Property Owner Rule. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

Key takeaways

This case demonstrates the importance of properly qualifying expert witnesses and establishing a reliable methodology. Harley challenged the qualifications of Stone’s rebuttal expert Brubaker because he was not a land planner like their expert Boecher. However, the Court found Brubaker’s 40+ years of experience inspecting neighborhoods and reviewing deeds as a real estate appraiser qualified him to opine on land use and deed restrictions. The Court also examined his methodology, which followed industry standards for neighborhood analysis, relied on document review, and involved inspecting the subdivision. His approach mirrored the methodology of Harley’s expert. While specific objections could be raised at trial, Brubaker was permitted to testify as a rebuttal expert. This shows experts can be qualified based on practical experience even if they do not have the same formal credentials as the opposing expert. However, they must employ a sound methodology reliably applied to the facts. Vague objections to qualifications or methodology will likely fail if the expert has substantive experience and explains their analytical approach. Specific objections may still be raised later regarding the weight given to the expert’s opinions.