Opinion issued June 3, 2014




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                              NO. 01-12-00989-CV
                         ———————————
       GENE SMIRL D/B/A GENE’S PEARLAND EXXON AND
    GENE SMIRL D/B/A PEARLAND MOTOR COMPANY, Appellant

                                      V.

                  THE STATE OF TEXAS AND
       RMJ MILLER REAL ESTATE HOLDINGS, LTD., Appellees



                On Appeal from County Court at Law No. 1
                        Brazoria County, Texas
                     Trial Court Case No. CI042455


                        MEMORANDUM OPINION

     Appellant, Gene Smirl, doing business as “Gene’s Pearland Exxon” and

“Pearland Motor Company” (“Smirl”), challenges the trial court’s rendition of
summary judgment in favor of appellee, RMJ Miller Real Estate Holdings, Ltd.

(“RMJ”), 1 in Smirl’s suit against RMJ to recover a portion of condemnation

proceeds for the value of his lost leasehold interest in the subject property. In three

issues, Smirl contends that the trial court erred in granting RMJ summary

judgment.

      We affirm.

                                      Background

      RMJ was the fee owner of real property located at Main Street and

Broadway in Pearland, Texas. In 1995, RMJ’s predecessors-in-interest 2 leased the

real property to Holland Davis 3 to operate an automotive service station and used-

car sales business. The lease agreement had a primary term of fifteen years,

beginning August 1, 1995 and ending July 31, 2010. Pursuant to the lease, Davis

agreed to pay a rental rate of $1,500 per month for the first five-year period and

then renegotiate the rental rates in the two subsequent five-year periods. The lease

provides, “It is distinctly understood and agreed . . . that any holding over after the

expiration of this lease shall operate and be construed only as a tenancy from

month to month.” It further provides that “[n]o acceptance of rent” or “delay in


1
      Appellee, the State of Texas, has filed a letter of nonparticipation in this appeal.
2
      Rosalie Miller Acree, Michalyn Ordeneaux, and Jacalyn DeLange are not parties
      to this appeal.
3
      Davis is not a party to this appeal.

                                             2
enforcing any obligation shall be construed as a waiver of any default” and “shall

not act as a waiver of [RMJ’s] right to enforce the default provisions.” And any

assignment of the lease required RMJ’s approval.

      In July 2002, Davis sold the automotive business, namely, the “equipment,

fixtures, goodwill, inventory, trade names, and other intangible assets,” to Smirl.

And Davis assigned his leasehold interest in the real property to Smirl. In the

assignment agreement, which RMJ approved, RMJ and Smirl agreed to the

following terms:

      1. The Lease term shall be for a period of Ten (10) years, beginning
         on July 1, 2002, at the monthly rental of $2,000 per month payable
         on the 1st day of each month for the first Five (5) year[] period.
      2. The second Five (5) year period beginning on July 1, 2007,
         shall be at a monthly rental to be negotiated by the parties
         based upon fair market value of rentals in the area.
      3. For and in consideration of Ten and No/100 ($10.00) Dollars, the
         Lessee is granted an option to extend the lease for an additional
         Five (5) year period at the conclusion of the initial Ten (10) year
         term. Said option shall be exercised by giving notice of intent to
         exercise the option in writing to the Lessor within 90 days from the
         expiration of the initial term. The monthly rental for the option
         period shall be at a rate determined by the parties based upon fair
         market value of rentals in the area.
      4. All other terms of the Lease . . . shall remain in full effect.

(Emphasis added.) The parties dispute whether they affirmatively negotiated the

monthly rental for the second five-year period as emphasized above. Nevertheless,

during the two years that followed, Smirl continued to pay rent in the amount of

$2,000 each month.

                                           3
      On May 11, 2009, the State of Texas, acting through the Texas

Transportation Commission, filed a statutory condemnation action to acquire

0.0519 acres of land from the 0.543-acre property for the expansion of a highway.

The trial court appointed special commissioners to assess the condemnation

damages. The commissioners assessed the condemnation damages at $140,899 at

a hearing attended by RMJ and Smirl. Smirl timely filed an objection to the

commissioners’ award. 4

      On November 27, 2009, Smirl, by agreement of the parties, intervened in the

condemnation suit, asserting an inverse condemnation claim against the State and

seeking damages for his lost leasehold interest, lost personal property, and

uncompensated moving expenses. He alleged that the State’s condemnation of the

real property had resulted in the taking of his own property, including his

leasehold, billboard, canopies, permits, pumps, and storage tanks.           Smirl also

sought apportionment of any condemnation damages awarded to RMJ. In order to




4
      Condemnation proceedings have two distinct phases. Metro. Transit Auth. Harris
      Cnty., Texas v. Graham, 105 S.W.3d 754, 757 (Tex. App.—Houston [14th Dist.]
      2003, pet. denied). The first phase is administrative and involves a hearing before
      three special commissioners appointed by the trial court. Id.; see TEX. PROP. CODE
      ANN. §§ 21.014–.015 (Vernon Supp. 2013). The commissioners enter findings
      and determine the damages owed to the property owner. Graham, 105 S.W.3d at
      757. If any party timely files an objection to the commissioners’ award, it is
      vacated and the case proceeds to the second phase as any other judicial proceeding
      in the trial court. TEX. PROP. CODE ANN. § 21.018 (Vernon 2004); Graham, 105
      S.W.3d at 757.

                                           4
value the extent of his leasehold interest, Smirl sought a declaration that he and

RMJ were in “the second five-year period” of the lease.

      RMJ filed a cross claim against Smirl, seeking a declaration that the lease

terminated on June 30, 2007 because Smirl had failed or refused to renegotiate the

rental rate for the second five-year period of the lease. RMJ asserted that Smirl’s

possession of the premises continued as a month-to-month holdover tenancy when

Smirl breached the lease by failing to renegotiate the rental rate as agreed.

      RMJ then moved for summary judgment on Smirl’s claim for apportionment

of the condemnation proceeds on the ground that, after adequate time for

discovery, “Smirl ha[d] produced no evidence of the value of the use and

occupancy of the leasehold for the remainder of the lease term.” RMJ also moved

for summary judgment on its cross claim for declaratory judgment, arguing that

“[t]he Lease expired as a matter of law on June 30, 2007” because “Smirl failed to

perform a condition for renewal,” namely, he “refus[ed] to negotiate the rental rate

for the additional five-year term.” It asserted that “[b]y continuing to occupy the

property after expiration of the first five-year extension, Smirl became a holdover

tenant.” And it noted that the lease expressly provides that “any holding over by

[Smirl] of the property after the expiration of [the lease] shall operate and be

construed only as a tenancy from month-to-month.” RMJ attached to its motion




                                          5
the lease, the assignment, and the affidavit of Michalyn Ordeneaux, general partner

of RMJ, who testified that,

      Towards the end of the first five-year extension period, we contacted
      [Smirl] to negotiate rent for the second five-year extension period.
      Despite his attorney’s prior statement that the market rent was as
      much as $8,000 per month, [Smirl] refused to negotiate a new rental
      rate based on fair market value of rentals in the area. Instead, he
      continued to pay just $2,000 per month. Since the taking in this case,
      [Smirl] has vacated the premises and ceased to make any rent
      payments.

      In his response, Smirl argued that RMJ’s no-evidence motion should be

denied because “there exists more than a scintilla of evidence in support of the

value of the use and occupancy of the leasehold for the remainder of the lease term

or of the value of [Smirl’s] right to renew the lease.” Smirl further argued that the

Assignment provided for a ten-year period, and it required only that the parties

negotiate the monthly rental rate based on fair market value for the second five-

year period.    Smirl asserted that RMJ continued to accept $2,000 in rental

payments each month without objection.         Smirl attached to his response his

affidavit, in which he testified that,

      [b]ased on market research, the fair market value of the remaining
      lease term is approximately $576,000 as determined by the following:
          The fair market monthly rent for a comparable lease is
          approximately $8,000. Because [Smirl] paid $2,000 under the
          terms of [the lease], [Smirl] enjoyed a difference in value of
          $6,000/month. Accordingly, [Smirl] enjoyed $72,000 in value
          under [the lease] for 12 months, or a 1 year period.



                                         6
          Consequently, there were 8 years left on the [lease] which
          amounts to $72,000 per year in value lost by [Smirl].

Smirl also attached his sales contract with Davis, the lease, the assignment, an

unexecuted lease agreement from 2007, a list of his monthly rent payments, and

the State’s amended petition for condemnation.

       After a hearing, the trial court granted RMJ’s no-evidence summary-

judgment motion on Smirl’s claim for apportionment of the condemnation

proceeds. The trial court also granted RMJ a declaration that “[a]s of July 1, 2007,

the leasehold interest of [Smirl] became a month-to-month tenancy” as a matter of

law.

       Subsequently, RMJ and the State executed a compromise agreement,

wherein the State agreed to pay RMJ $341,250 in total compensation. In its final

judgment, which incorporates RMJ’s summary judgments, the trial court

concluded that, pursuant to the compromise agreement, the State is entitled to fee

simple title in the real property and RMJ is entitled to the sum of $341,250 for the

condemnation of the property and for damages to the remainder of the adjacent

property. 5

5
       Pursuant to the “undivided-fee rule,” when real property has been “carved into
       different interests, the property is valued for condemnation purposes as if it were
       owned by a single party.” State v. Cent. Expressway Sign Assoc’s, 302 S.W.3d
       866, 873 (Tex. 2009). “The purpose of the rule is to award full compensation for
       the land itself, and not for the sum of the different parts.” Id. The fact-finder first
       determines the market value of the entire property, then apportions the market
       value between the fee owner and the lessee. Id. A condemnor has no interest in

                                              7
                                Standard of Review

      After an adequate time for discovery, the party without the burden of proof

may move for summary judgment, with or without presenting evidence, on the

basis that there is no evidence to support an essential element of the non-moving

party’s claim. TEX. R. CIV. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73

S.W.3d 193, 207 (Tex. 2002). The movant must specifically state the element as to

which there is no evidence. TEX. R. CIV. P. 166a(i). The burden then shifts to the

non-movant to produce evidence that raises a fact issue on the challenged element.

See Johnson, 73 S.W.3d at 207.

      To defeat a no-evidence motion, “the respondent is not required to marshal

its proof; its response need only point out evidence that raises a fact issue on the

challenged elements.” TEX. R. CIV. P. 166a(i) cmt. “A no evidence point will be

sustained when (a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact

is no more than a mere scintilla, or (d) the evidence conclusively establishes the

opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003). When determining if more than a scintilla of evidence has been


      the apportionment of condemnation damages. Texas Pig Stands, Inc. v. Krueger,
      441 S.W.2d 940, 945 (Tex. Civ. App.—San Antonio 1969, writ ref’d n.r.e.). Here,
      the State has filed a letter of nonparticipation in the appeal.

                                          8
produced, the evidence must be viewed in the light most favorable to the non-

movant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More

than a scintilla exists when the evidence “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Id. Conversely,

“[w]hen the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a

scintilla and, in legal effect, is no evidence.” Id.

                  Apportionment of the Condemnation Proceeds

      In his third issue, Smirl argues that the trial court erred in granting RMJ

summary judgment on the ground that there is no evidence to support his claim for

apportionment of the condemnation proceeds because his affidavit constitutes

“more than sufficient evidence [of] the fair market value of the remaining lease.” 6

      It is well-settled that a lessee is entitled, as a matter of law, to share in a

condemnation award when part of its leasehold interest is lost by condemnation.

Motiva Enters., L.L.C. v. McCrabb, 248 S.W.3d 211, 214 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied); see also Texaco Ref. & Mktg., Inc. v. Crown Plaza

Grp., 845 S.W.2d 340, 342 (Tex. App.—Houston [1st Dist.] 1992, no writ). Both

the fee owner and lessee are entitled to share in the award according to their


6
      By his petition in intervention, Smirl sought damages for his lost leasehold
      interest, lost personal property, and uncompensated moving expenses. On appeal,
      however, his argument concerns only his lost leasehold interest.

                                            9
respective interests. Texaco Ref. & Mktg., Inc., 845 S.W.2d at 342. Unless a lease

provides that it terminates upon condemnation, the tenant will recover

compensation for the unexpired term. Motiva Enters., L.L.C., 248 S.W.3d at 214.

      A lessee has the burden to establish prima facie proof of its ownership

interest in the subject property and the value of that interest. Soc’y of Mary’s

Stars, Inc. v. State, 748 S.W.2d 320, 323 (Tex. App.—Fort Worth 1988, writ

denied). A lessee is “entitled to receive compensation for the difference, if any,

between the market rental and the contract rental for the balance” of the term.

Texas Pig Stands, Inc. v. Krueger, 441 S.W.2d 940, 945 (Tex. Civ. App.—San

Antonio 1969, writ ref’d n.r.e.).

      Here, the lease does not state that it terminates upon condemnation. See

Texaco Ref. & Mktg., Inc., 845 S.W.2d at 342. Further, nothing in the lease

reflects that Smirl waived his right to compensation. See id. Thus, Smirl is

entitled to a portion of the condemnation award from RMJ for the value of his

interest, if any. See Motiva Enters., L.L.C., 248 S.W.3d at 214.

      Smirl argues on appeal, as he did in the trial court, that his affidavit

testimony, quoted above, constitutes “more than sufficient evidence that the fair

market value of the remaining lease was approximately $576,000” and “that the

fair market rent for a comparable lease was approximately $8,000 based on market

research.”



                                         10
      RMJ argues that Smirl’s testimony “amounted to no evidence of damages

for the loss of Smirl’s claimed leasehold interest” because his “testimony failed to

show how he was qualified or competent to determine market value issues such as

fair market monthly rent.” It also argues that “Smirl’s testimony was conclusory”

because he “failed to set forth any facts that would support the statements made” in

that he failed to include or describe any of the referenced “market research” on

which his conclusion of either the fair market value of the lease or of the fair

market value of the remaining lease term was based.         Rather, “Smirl simply

concluded a market rent of $8,000 per month.”

      Even if we were to assume without deciding that Smirl was qualified to

testify as the owner of the leasehold, we conclude that his affidavit testimony is

conclusory and speculative, and, therefore, constitutes no evidence of the valuation

of his leasehold interest.

      Because property-owner testimony is the functional equivalent of expert

testimony, it is judged by the same standards. Natural Gas Pipeline Co. of Am. v.

Justiss, 397 S.W.3d 150, 157 (Tex. 2012). As with expert testimony, property

valuations may not be based solely on a property owner’s ipse dixit. Id. at 159.

“The valuation must be substantiated; a naked assertion of ‘market value’ is not

enough.” Id. The property owner “must provide the factual basis on which his

opinion rests.” Id. (emphasis added). Evidence of comparable leasehold values,



                                        11
appraisals, online resources, and any other relevant factors may be offered to

support the claim. See id.; Texas Fruit Palace, Inc. v. City of Palestine, 842

S.W.2d 319, 323 (Tex. App.—Tyler 1992, writ denied) (“The measure of value of

a leasehold estate is the value of the use and occupancy of the leasehold for the

remainder of the tenant’s term, less the agreed rent; the values are determined by

the usual willing buyer, willing seller rule.”). The owner’s testimony may be

challenged on cross-examination or refuted with independent evidence. Justiss,

397 S.W.3d at 159. However, “even if unchallenged, the testimony must support a

verdict, and conclusory or speculative statements do not.”      Id.   An expert’s

testimony is conclusory as a matter of law if he “simply state[s] a conclusion

without any explanation.” Id. at 156 (citing Arkoma Basin Exploration Co. v. FMF

Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008)). Testimony is speculative

if it is based on guesswork or conjecture. Id.

      In Justiss, the court held that because the landowners did not provide any

factual bases for their valuations, their testimony was conclusory and, therefore,

constituted no evidence. Id. at 159–61.          Although one property owner

demonstrated his familiarity with area market values, he failed to explain the

factual basis behind his determination that his property suffered a $400,000

decrease in value. Id. at 161. His bare statement that it was “based on property

sales around in the area” was insufficient. Id.; cf. Arkoma, 249 S.W.3d at 389



                                         12
(holding that expert’s “cursory” testimony did not make his opinion conclusory,

because accompanying exhibit explained the basis for his conclusion).

      Here, Smirl testified that “[b]ased on market research, the fair market value

of the remaining lease term is approximately $576,000” and “[t]he fair market

monthly rent for a comparable lease is approximately $8,000.” (Emphasis added.)

Thus, he made the bare assertion that his valuation was based on “market research”

and did not offer any factual bases or evidence of nearby valuations, appraisals,

online resources, and any other relevant factors to support his claim. See id. at

159, 161. As such, his valuation is conclusory. See id. at 161. Further, Smirl

couched his valuations in terms of approximations. An opinion cast in terms of

approximations and unsupported by any relevant facts leading to or supporting

such approximation is conjectural. Stinson v. Cravens, Dargan & Co., 579 S.W.2d

298, 299 (Tex. Civ. App.—Dallas 1979, no writ); see also Justiss, 397 S.W.3d at

158–59 (citing Trinity River Estates, L.P. v. DiFonzo, No. 2–08–393–CV, 2009

WL 1506928, at *4 (Tex. App.—Fort Worth May 28, 2009, no pet.) (mem. op.)

(affirming no-evidence summary judgment where owner’s affidavit, stating his

property had been damaged “between $1.8 and $2.2 million dollars based upon the

reduction in value of the overall site,” failed to state basis for opinion)).

      Smirl argues that RMJ failed to object in the trial court to the sufficiency of

his affidavit testimony. There is a distinction between challenges to an expert’s



                                           13
scientific methodology and “no evidence challenges where, on the face of the

record, the evidence lacked probative value.” Coastal Transp. Co. v. Crown Cent.

Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). When an expert’s underlying

methodology is challenged, the trial court “necessarily looks beyond what the

expert said” to evaluate the reliability of the expert’s opinion.       Id. Thus, an

objection is required so that the trial court can conduct the analysis. Id. When, as

here, however, the testimony is challenged as conclusory or speculative, and,

therefore, as non-probative on its face, there is no need to go beyond the face of the

record to test its reliability, and a party may challenge the legal sufficiency of the

evidence even in the absence of an objection to its admissibility. Id. at 232–33.

      We conclude that Smirl did not meet his burden to bring forward more than

a scintilla of probative evidence to raise a genuine issue of material fact regarding

the valuation of his leasehold interest. See Justiss, 397 S.W.3d at 158–59;

Chapman, 118 S.W.3d at 751. Thus, we hold that the trial court did not err in

granting RMJ summary judgment on the ground that Smirl produced no evidence

“of the value of the use and occupancy of the leasehold for the remainder of the

lease term.”

      Accordingly, we overrule Smirl’s third issue.

      Having upheld the trial court’s ruling on no-evidence grounds, we need not

address whether Smirl raised a genuine issue of material fact regarding the nature



                                         14
of the tenancy supporting his valuation. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). Accordingly, we do not reach Smirl’s first and

second issues.

                                   Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Justice Sharp, concurring in judgment only.




                                        15
