Opinion filed July 29, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-14-00164-CV
                                  __________

   ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellant
                        V.
        EL HALCON INVESTMENTS LLC, Appellee

                     On Appeal from the County Court at Law
                              Brown County, Texas
                        Trial Court Cause No. CV1103096

                      MEMORANDUM OPINION
       This case arose from a condemnation suit. Appellant, Oncor Electric Delivery
Company LLC, acquired an easement, via eminent domain, over approximately
fifty-six acres of a 4,449.57-acre ranch (Lee Ranch) in Brown and Mills Counties
that is owned by Appellee, El Halcon Investments LLC. Oncor used the easement
to install an electric transmission line. El Halcon stipulated at trial that Oncor had
the right to condemn the easement; the only issue for the jury to decide was the
measure of damages. The jury found that the difference in market value of Lee
Ranch, from immediately before and immediately after the condemnation, was a net
decrease of $667,500, which was approximately $150 per acre. We affirm.
                                 I. Evidence at Trial
      Oncor installed an electric transmission line in 2002 across an easement it had
over Lee Ranch. Oncor acquired a second easement in 2011. The second easement
ran immediately adjacent and parallel to the then-existing electric transmission line;
Oncor installed a second transmission line next to the existing line, and the two lines
were part of the largest class of Oncor transmission lines in Texas. Todd Whitley,
who managed Oncor’s construction management division, testified that each of the
towers that supported six transmission lines, three on each side of each tower, had a
base of four legs and was as tall as a twelve-story building. The ranch manager,
Kurt Martin, testified that the transmission lines and towers could be seen from
nearly every location on the ranch. Martin further explained that, in order to install
the 2011 transmission line, Oncor had to clear hundreds of trees along a strip of land
160 feet wide and totaling approximately fifty-six acres of land.
      Approximately one year before the 2011 condemnation, El Halcon purchased
Lee Ranch from the Estate of Nancy Lee for $2,150 per acre. Prior to the purchase,
David Copeland, who is the sole member of El Halcon, learned of the plan to install
the second transmission line across the ranch. He negotiated an agreement with the
Estate that it would not make any agreements with Oncor as to compensation for the
condemned easement.       Copeland wanted to negotiate with Oncor as to the
appropriate compensation for any decrease in the ranch’s market value. Copeland
also wanted to negotiate additional provisions as part of the easement.
      Copeland testified that the ranch’s sale price did not reflect the decreased
value of Lee Ranch due to the condemnation. At trial, expert witnesses gave
differing opinions on how the condemnation affected Lee Ranch’s market value.
Copeland testified that the condemnation decreased Lee Ranch by $1,112,250,
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which was a market value decrease of approximately $250 per acre. The jury
awarded El Halcon $667,500, which was a market value decrease of approximately
$150 per acre.
                                 II. Issues Presented
      Oncor asserts in its first issue that the trial court abused its discretion when it
admitted unreliable testimony from Copeland about the ranch’s market value and
about the decrease in market value caused by the second easement; Oncor also
claims that the error was harmful. In its second issue, Oncor argues that the evidence
was legally and factually insufficient to support the jury’s verdict.
                                     III. Analysis
      A. Issue One: Admissibility of Copeland’s Valuation Testimony
      Oncor asserts that the trial court abused its discretion when it admitted
Copeland’s testimony because Copeland gave no basis for his opinion, but only a
bare conclusion of damage without any explanation, and Copeland based his opinion
on evidence that the trial court held was inadmissible because that evidence was
unreliable. As we explain below, we disagree with Oncor’s assertions and conclude
that Copeland’s testimony was substantiated and admissible.
             1. Standard of Review
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001).     A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Oncor asserted that the trial court should have excluded Copeland’s valuation
testimony because he based it solely on his “unsupported ‘belief’ as to the before
and after condemnation values of [Lee Ranch].” A property owner may testify as to
the value of his property, but his testimony must meet the same requirements as other
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opinion evidence. Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155–56
(Tex. 2012) (citing Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1984)). Under the
“Property Owner Rule,” a property owner’s valuation testimony fulfills the same
role as expert testimony. Id. at 157. Property-owner testimony is the functional
equivalent of expert testimony, and it must be judged by the same standards. Id. at
159. The property owner, who is presumed to be familiar with his own property, is
permitted an exception to the rule that a witness establish his qualifications to opine
on land values. Id. at 157.
             2. Fair Market Value of Property
      Texas case law has outlined that a property’s fair market value is “the price
the property will bring when offered for sale by one who desires to sell, but is not
obliged to sell, and is bought by one who desires to buy, but is under no necessity of
buying.” City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001)
(quoting State v. Carpenter, 89 S.W.2d 979, 980 (Tex. 1936)). “The three traditional
approaches to determining market value are the comparable sales method, the cost
method, and the income method.” Id. (citing Religious of Sacred Heart of Tex. v.
City of Houston, 836 S.W.2d 606, 615–17 & n.14 (Tex. 1992)). Appellant complains
that Copeland’s failure to use the comparable sales method made his testimony
inadmissible. As we explain below, we disagree.
             3. Admissibility of Landowner’s Testimony on Market Value
      Oncor asserts that Copeland’s testimony was not sufficiently supported by
facts when Oncor’s counsel asked, “Let me ask you one more time. Tell the jury --
would you, please, tell the jury what factual basis you used in determining $2400
per acre was the value of the property before Oncor acquired this easement?”
Copeland responded, “That was my belief.” But Oncor fails to look at how, through
nearly 100 pages of the reporter’s record, Copeland explained the basis of his
opinion and belief as to the ranch’s market value and its decrease in value. We do
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not agree with Oncor that Copeland’s testimony was based solely on his “belief” or,
put another way, was ipse dixit.1
       As with expert testimony, an owner’s property valuation may not be based
solely on the owner’s ipse dixit. Justiss, 397 S.W.3d at 159. An owner may not
simply echo the phrase “market value” and state a number to substantiate the owner’s
claim; rather, the property owner must provide the factual basis on which the opinion
rests. Id. This burden is not onerous, particularly in light of the resources available
today. Id. Evidence of nearby sales, price paid, tax valuation, online resources,
appraisals, and any other relevant factors may be offered to support the property
owner’s claim. Id. Furthermore, the property owner’s testimony must not be in
reference to his personal valuation; rather, it must be tied to some measure of market
value. Id. at 155–56. An unsupported opinion constitutes no evidence and will not
support a judgment even if it was admitted at trial without objection. Id. at 156–57.
              4. Copeland explained the basis for his assessment of the ranch’s
                 decrease in market value.
       Copeland explained that, during the past fifteen years, he had bought and sold
numerous ranches in Texas. He said that he was successful in the ranch real estate
market because he made money on each ranch that he sold. He kept up with the
ranch real estate market; read magazines about the ranch real estate market; reviewed
property listings, including ones in Brown County and Mills County; and stayed in
touch with real estate brokers, including in Brown County. He said that he “had
realtors down here [in Brown County] that became friends and knew that [he] had
been in the real estate business and buying and selling real estate. So, [he] would
get calls from those guys, and [he] would stay plugged into what they were talking
about the market.”


       “Ipse dixit” is defined as “[s]omething asserted but not proved.” Ipse Dixit, BLACK’S LAW
       1

DICTIONARY (10th ed. 2014).

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         Copeland testified about his knowledge of land prices in Brown County and
Mills County. Copeland and a business partner had purchased Pecan Springs Ranch,
a 2,000-acre ranch located in Brown County.2 After that, Copeland purchased
another 235 acres that were adjacent to Pecan Springs Ranch, bringing his total
ownership of land in Brown County, exclusive of the Lee Ranch acreage, to 1,235
acres. Copeland testified that, when he purchased Lee Ranch, land in Mills County
was selling for $3,200 to $3,800 per acre, while land in Brown County was selling
for $2,400 to $2,800 per acre.
         Copeland explained that he was not in the market to buy another ranch; thus,
he was only prepared to buy if he was able to purchase for a good price. He
explained that the ranch was a good deal if he could pay below market value for it.
Copeland noted that Lee Ranch was not being marketed with a broker when he
bought it. Copeland testified that Lee Ranch had “some Federal tax lien issues.”
See W. AH 406 Ltd. v. Cent. Appraisal Dist. of Taylor Cty., 213 S.W.3d 544, 546
(Tex. App.—Eastland 2007, pet. denied) (encumbrances, restrictions, contracts, or
other items of similar nature may affect fair market value; loan agreement between
property owner and United States Air Force that limited occupancy and rent was
factor in value). Copeland explained that the Estate’s representative “made it clear
that there were no heirs that wanted the land, [and that] the property was going to be
sold.”
         At the time of the purchase, Lee Ranch belonged to the Lee Estate, which was
going through the probate process. According to Copeland, “There were 13 or 14
heirs, distant heirs that just wanted a check.” Copeland explained that the ranch’s
large acreage was another appealing factor; the ranch was a “very unique property”
with “lots of water, lots of great trees.” He had “never seen a property like” Lee


         2
        Copeland and his business partner negotiated an agreement to split Pecan Springs Ranch in half,
with each of them getting approximately 1,000 acres.
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Ranch and thought that it was “shockingly beautiful” the first time he saw it.
Copeland testified that, in light of the circumstances, the value of Lee Ranch was
actually $2,400 per acre when he bought it. With more advertising and less desire
to simply get a check, he opined that Lee Ranch could have been sold for $2,400 per
acre, which would have provided immediate equity in Lee Ranch by a measure of
$250 per acre.3 We note that actual sale price is not necessarily evidence of fair
market value when circumstances indicate that a sale is out of the ordinary in some
way. See generally Preston Reserve, L.L.C. v. Compass Bank, 373 S.W.3d 652, 663
(Tex. App.—Houston [14th Dist.] 2012, no pet.).

                5. The lack of similar properties limits use of comparable sales
                   method.
        Oncor asserts that Copeland’s failure to provide evidence of comparable sales,
as defined by Oncor as sales of ranches in Brown County of over 1,000 acres,
rendered his opinion “a bare conclusion of damage without any explanation.”
Copeland acknowledged that he could not “identify a 1,000-acre or larger ranch that
sold for” $2,400 per acre in Brown County. Consequently, Oncor claims that
Copeland’s opinion that Lee Ranch was really worth $2,400 at the time of the
condemnation was not sufficiently supported by facts. When asked what the basis
of his opinion was in light of the fact that he did not present comparable sales,
Copeland said, “In my opinion, there is no comparable property. [Lee Ranch] is a
very, very unique property. . . . I don’t think there is a comparable sale. I think [Lee
Ranch] is a highly unusual property.” He said that he “could have looked a long
time in 2010 and not found another 4,400-acre ranch for sale in Brown County that
had these amenities. Never would have found it. There is no comparison” (emphasis
added). In order to utilize a comparable sales method, the sale must be voluntary,

        3
          That being the difference between Copeland’s opinion as to value as reflected by other property
sales in the area and his and the Estate’s circumstances, $2,400 per acre, and the price Copeland actually
paid for Lee Ranch, $2,150 per acre.
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take place near in time to condemnation, and involve land with similar
characteristics; if comparison is too attenuated, then the trial court should refuse to
admit evidence of a comparable sale. See Holiday Inns, Inc. v. State, 931 S.W.2d
614, 623–24 (Tex. App.—Amarillo 1996, writ denied) (remoteness in time); Urban
Renewal Agency of Austin v. Georgetown Sav. & Loan Ass’n, 509 S.W.2d 419, 421–
22 (Tex. Civ. App.—Austin 1974, writ ref’d n.r.e.) (similarity of neighborhood).
Based on his background, experience, and sources of knowledge, Copeland testified
that Lee Ranch, which had no comparison in Brown County, was worth $2,400 per
acre before the condemnation and $2,150 per acre after the condemnation.
             6. Copeland substantiated his market value evaluation of the ranch.
      Copeland explained that the fifty-six acres that made up the easement “is
really not entirely mine to use. I have lost property rights, as explained by Oncor’s
witness and by Mr. Martin. So, [the acreage is] there. I can cross it. I can use it in
a limited way.” He continued, “What it amounts to is you can run cattle on it, and
you could cultivate it if you wanted to. So, I think that is about the only use that an
owner gets out of the property that is under power lines burdened by this easement.”
Copeland explained his background, knowledge, and experience in the ranch real
estate market, and he substantiated how he determined his valuations, which
included information on the factors that affected the sales price, his costs to acquire
the property, the property’s unique characteristics and limitations, the unavailability
of comparable properties in Brown County, and the fact that ranching and cultivation
were the only ways to generate income. See Justiss, 397 S.W.3d at 159 (a property
owner’s opinion “must be substantiated”). Copeland explained how and why the
condemnation decreased the market value of his property. See Justiss, 397 S.W.3d
at 159; see also Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 40–41
(Tex. App.—Dallas 2012, pet. denied) (thirty-year car wash owner’s opinion on
market value was admissible, even though he was not an appraiser, did not provide
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market data, and did not prepare expert report). The supreme court has explained
that comparable sales is but one method, from a non-exhaustive list of possible
methods, that could serve to support a property-owner’s valuation testimony.
Justiss, 397 S.W.3d at 159. We cannot say that the trial court abused its discretion
when it admitted Copeland’s testimony. Copeland’s testimony was not inadmissible
simply because Copeland did not present comparable sales data, especially when
other appraisals of a $50 decrease and a $115 decrease in value per acre were in
evidence; rather, Oncor’s objection goes to the weight the jury could give
Copeland’s testimony. See McKinney Ind. Sch. Dist. v. Carlisle Grace, Ltd., 222
S.W.3d 878, 882 (Tex. App.—Dallas 2007, pet. denied) (citing Tex. Elec. Serv.
Co. v. Wheeler, 551 S.W.2d 341, 342–43 (Tex. 1977) (per curiam) (op. on reh’g));
see also Crestview Corners Car Wash, 370 S.W.3d at 40.
             7. Copeland’s testimony was not based on unreliable evidence.
      Oncor argues that Copeland’s testimony was unreliable because he based it
solely on an expert’s opinion that the trial court excluded on grounds of unreliability.
Oncor cites Copeland’s deposition testimony in which he stated, “It’s my view that
[my expert appraiser’s] number of something like $476,000 for a diminishment
value of the north half [of Lee Ranch] should be doubled and add back in the value
of 57 acres. That comes out to about $1,061,000.” At trial, however, Copeland’s
testimony was different. There, he opined that the condemnation decreased the value
of Lee Ranch by $1,112,250. At no point in Copeland’s testimony did he reference
an expert’s, or any other person’s, valuation opinion. Therefore, we cannot say that
Copeland based his valuation testimony at trial on his expert’s unreliable opinion,
and we reject Oncor’s assertion otherwise. Having found that Copeland’s testimony
was supported by sufficient facts and that he did not base his testimony on unreliable
expert testimony, we overrule Oncor’s first issue and, therefore, need not address
Oncor’s harm argument. We now turn to Oncor’s second issue.
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      B. Legal and Factual Sufficiency
      Oncor asserts in its second issue that the evidence is both legally and factually
insufficient to sustain the jury’s verdict. We review a legal sufficiency challenge to
the evidence in a light that tends to support the disputed finding and disregard all
evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754
(Tex. 2001). We “assess all the evidence in the light most favorable to the prevailing
party, indulging every reasonable inference in favor of the judgment.” City of Austin
Police Dep’t v. Brown, 96 S.W.3d 588, 593 (Tex. App.—Austin 2002, pet. dism’d)
(citing Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86
(Tex. 1998)). A no-evidence challenge fails if more than a scintilla of evidence
supports the challenged finding. See Wal–Mart Stores, Inc. v. Canchola, 121
S.W.3d 735, 739 (Tex. 2003); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588
(Tex. 1999).
      We review a factual sufficiency challenge by examining all of the evidence in
the record, both for and against the lower court’s findings. Ortiz v. Jones, 917
S.W.2d 770, 772 (Tex. 1996). We must consider and weigh all such evidence in a
neutral light. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). But factfinders “are the sole judges of the credibility of the witnesses and the
weight to give their testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005).   We will sustain a factual sufficiency challenge only if the evidence
supporting the finding is so weak or so against the great weight of the evidence that
the finding is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237,
242 (Tex. 2001); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
      Copeland had successfully bought and sold for a profit numerous ranches in
various parts of Texas for approximately fifteen years. Copeland monitored the
ranch real estate market, read magazines, reviewed listings, talked to real estate
brokers—including in Brown County—and “had realtors [in Brown County] that
                                          10
became friends and knew that [he] had been in the real estate business and buying
and selling real estate. So, [he] would get calls from those guys, and [he] would stay
plugged into what they were talking about the market.” Copeland had purchased
Pecan Springs Ranch, which was located in Brown County, and had purchased
another 235 acres adjacent to Pecan Springs Ranch, bringing his total ownership of
land in Brown County, exclusive of the Lee Ranch acreage, to 1,235 acres. Based
on his background, experience, and sources of knowledge, Copeland opined that Lee
Ranch was worth $2,400 per acre before the condemnation, which included the
knowledge that there was one set of transmission lines already on the property.
Copeland opined that, after the condemnation for the second set of transmission
lines, Lee Ranch was worth $2,150 per acre. The decrease in the ranch’s market
value, he opined, was $1,112,250, which equals approximately $250 per acre.
Although some of Copeland’s testimony included information that could encompass
the ranch’s market value as well as his personal value, this type of information goes
to the weight of his testimony, which the jury was free to accept or reject. The jury
awarded $667,500, or approximately $150 per acre, which was less than Copeland’s
evaluation of the decrease in the ranch’s market value. We hold that there is some
evidence to support the jury’s verdict.
      Both Oncor and El Halcon presented expert witness testimony on the effect
the condemnation had on the ranch. Several appraisals presented at trial outlined a
change in value of Lee Ranch: David Harry opined that there was approximately a
$50 per acre decrease in value, while David Bolton opined that there was a $115 per
acre decrease in value. El Halcon’s bank showed that there was an $850 increase
per acre after El Halcon’s purchase of the ranch. When there are competing
contentions supported by expert witnesses on both sides, the burden is on the jury to
determine which contention is most credible. Allstate Tex. Lloyds v. Mason, 123
S.W.3d 690, 703 (Tex. App.—Fort Worth 2003, no pet.) (citing Turner v. KTRK
                                          11
Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000)). With competing opinions as to
damages, we cannot say that the jury’s award of damages in the amount of $150 per
acre was against the great weight and preponderance of the evidence.
      Oncor argues that Callejo v. Brazos Electric Power Cooperative, Inc. controls
and that its holding disallowed the “blending” of various experts’ before-
condemnation and after-condemnation valuation opinions in order to settle on a
damage award. 755 S.W.2d 73, 75 (Tex. 1988). In Callejo, the supreme court held
that the jury’s finding as to the after-condemnation value of a condemned property
was supported by no evidence because the jury “blended” before- and after-
condemnation values. Id. at 75. In doing so, the jury found the after-condemnation
value was $364,928.80, which was more than ten times greater than any witness’s
opinion—for either the plaintiff or the defendant—as to the after-condemnation
value. Id. Therefore, there was no evidence to support the after-condemnation
value. Id. Here, the jury was not charged with determining both before and after
valuations independently. Rather, it gave one answer as to damages generally, and
that damage award is supported by Copeland’s testimony alone. Therefore, Callejo
is not applicable. We have reviewed the evidence and conclude that the evidence is
both legally and factually sufficient to support the jury’s verdict. We overrule
Oncor’s second issue.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.



July 29, 2016                                      MIKE WILLSON
Panel consists of: Wright, C.J.,                   JUSTICE
Willson, J, and Bailey, J.



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