IN THE SUPREME COURT OF TEXAS
444444444444
NO . 10-0451
444444444444
NATURAL GAS PIPELINE COMPANY OF AMERICA, PETITIONER,
v.
WILLIAM JUSTISS, DARLENE JUSTISS, JOSEPH JUSTISS, TOMMY ALSPAUGH, JUDY
ALSPAUGH, JOE DENTON MASHBURN, CHRISTINE MASHBURN, JOE DONALD
MASHBURN, AND JUDY MASHBURN, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued October 5, 2011
CHIEF JUSTICE JEFFERSON delivered the opinion of the Court.
Several homeowners alleged that noise and odor emanating from a gas company’s
compressor station caused a permanent nuisance. The company countered that because the
homeowners’ complaints predated their lawsuit by six years, limitations barred their action. A jury
found that a permanent nuisance, which began just before the lawsuit was filed, diminished property
values. The court of appeals affirmed the trial court’s judgment for the homeowners. We agree with
the court of appeals that some evidence supports the jury’s finding on the accrual date.
We reach a different conclusion on damages, however. The homeowners testified that the
nuisance decreased their property values, but none explained the factual basis for that conclusion.
While a nuisance undoubtedly can diminish values, the conclusory and speculative testimony here
does not support such a finding. Accordingly, we reverse the court of appeals’ judgment and remand
the case to the trial court for a new trial.
I. Background
In 1992, the Natural Gas Pipeline Company of America built a compressor station in Lamar
County. Soon thereafter, area residents complained to the Company and to state regulators that the
station’s noise, odor, and lights interfered with the enjoyment of their homes. Between 1992 and
1998, William Justiss repeatedly called the Company and voiced his displeasure. In 1994, 1995, and
1996, he notified the Texas Natural Resources Conservation Commission (now known as the Texas
Commission on Environmental Quality) about the noise and odor. Two years after the plant opened,
Justiss’s lawyer wrote to the Company, claiming that the station was causing the Justisses “total
frustration and torment.” The Company responded, through its lawyer, and stated that “the actual
impact of the station on the Justiss’ [sic] property [was] significantly less than described in [the]
letter.” A lawyer representing other residents also notified the Company that “the noise, vibration,
lights, and related stimuli” were affecting the residents’ “peaceful use of their homes and property.”
The Company took minor remedial measures but consistently asserted that the plant complied
with government permits. In June 1998, however, the TCEQ cited the station for a Category 5 odor
violation—the most severe possible, indicating overpowering, highly objectionable, and nausea-
inducing odors. The Company responded by changing the oil for the station’s engines and raising
the exhaust stacks.
2
Two months after the citation, twelve residents1 sued the Company, alleging that the station’s
noise and odor constituted either a temporary or permanent nuisance. The Company moved for
summary judgment, arguing that the permanent nuisance claim was time-barred because it accrued
more than two years before the lawsuit. The trial court denied the motion, and the case proceeded
to trial. The jury found that (1) the noise and odor from the station created a permanent nuisance,
and (2) those conditions “first created a nuisance” on June 12, 1998, the date of the TCEQ citation.
The jury determined that the nuisance affected only nine of the twelve plaintiffs and awarded
$1,242,500 for their lost property value.2 The trial court rendered judgment on the verdict.
The Company appealed, arguing that (1) limitations barred the permanent nuisance claim;
(2) insufficient evidence supported the jury’s permanent nuisance and damage findings; and (3) the
trial court improperly awarded prejudgment interest because the plaintiffs failed to segregate past
and future damages. ___ S.W.3d ___, ___. The court of appeals affirmed, id., and we granted the
Company’s petition for review.3 54 Tex. Sup. Ct. J. 1156 (June 17, 2011).
1
The twelve residents were W illiam Justiss, Darlene Justiss, Joseph Justiss, Richard Rast, Tommy Alspaugh,
Judy Alspaugh, Barry Cope, Tina Cope, Joe Denton Mashburn, Christine Mashburn, Joe Donald Mashburn, and Judy
Mashburn.
2
The awards for the nine plaintiffs were as follows:
[W illiam] and Darlene Justiss: $540,000
Joseph Justiss: $175,000
Tommy and Judy Alspaugh: $270,000
Joe Donald and Judy Mashburn: $200,000
Joe Denton and Christine Mashburn: $57,500
3
Crosstex Energy Services, L.P., LaSalle Pipeline, LP, and the Texas Pipeline Association submitted briefs
as amici curiae in support of the petition for review.
3
The Company’s arguments here generally mirror those it made in the court of appeals. We
turn first to the limitations argument.
II. Limitations
A permanent nuisance claim accrues when the condition first “substantially interferes with
the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of
ordinary sensibilities.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269–70 (Tex.
2004). To establish a limitations defense, the defendant must prove that a permanent nuisance
occurred, if at all, more than two years before the landowner’s lawsuit. City of Abilene v. Downs,
367 S.W.2d 153, 159–60 (Tex. 1963). Because the jury found that the Company first created a
nuisance in 1998, the Company can prevail only if it has established, conclusively, that the claim
accrued more than two years before then. See Barnes v. Mathis, 353 S.W.3d 760, 762 (Tex. 2011)
(per curiam) (“When a party with the burden of proof loses at trial and asks an appellate court to
render judgment in his favor, that party must show that the evidence conclusively established his
entitlement to judgment.”).
The Company argues that the residents’ pre-1996 complaints conclusively prove that the
landowners’ claims accrued more than two years before suit was filed. According to the Company,
the court of appeals erred in relying on three categories of evidence to conclude otherwise: (1) the
Company’s unequivocal denial of a nuisance, (2) the Category 5 citation, and (3) testimony that
odors got worse in 1997 and 1998. The Company argues that this evidence cannot refute the
plaintiffs’ early characterization of “total frustration and torment.”
4
We disagree. First, the Company’s plant manager, Kevin Brown, disputed that
characterization. Brown testified that he “never” noticed an odor that could give rise to a nuisance
claim. That testimony supports the jury’s determination that no nuisance existed before
1998—“never” encompasses pre-1998. In fact, the Company’s lawyer had written to some of the
landowners and stated that the noise and odor were not nearly as bad as the landowners claimed. The
Company argues that we must disregard this evidence because considering it would deter a defendant
from presenting alternative arguments. Defense strategy is not our concern. We are asked only to
consider whether the evidence supports or rebuts the jury’s verdict. A jury may consider evidence
whether presented as part of the main defense or part of an alternative argument. Thus, the jury was
free to accept the plant manager’s and the lawyer’s characterizations of conditions as they existed
before 1998.
Even if the plaintiffs’ pre-1998 complaints were undisputed, that would not conclusively
decide this case. Evidence that no one disputes does not necessarily establish a fact as a matter of
law. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (“Undisputed evidence and
conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and
conclusive evidence may or may not be undisputed.”). Undisputed evidence can be susceptible to
competing interpretations. See id. at 815 (“Undisputed evidence that reasonable jurors could
disbelieve has two [logical inferences]: (1) it is true, or (2) it is not.”). Conclusive evidence cannot.
Conclusive evidence often “concerns physical facts that cannot be denied.” Id. We have held
that a paternity test “conclusively proved” nonpaternity, Murdock v. Murdock, 811 S.W.2d 557, 560
(Tex. 1991), that documents that detailed a leaseholder’s wrongful acts and were sent and received
5
by royalty owners “conclusively establish[ed]” that the royalty owners had knowledge of such
wrongdoing, Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 203–09 (Tex. 2011), and that
“readily accessible, publicly available documents” conclusively established that a leaseholder’s
alleged fraud could have been discovered through the exercise of reasonable diligence. Shell Oil Co.
v. Ross, 356 S.W.3d 924, 929–30 (Tex. 2011). In each of these situations, the evidence pointed to
only one conclusion. Here, nothing about the plaintiffs’ original complaints would require a finding
of a pre-1996 nuisance.
The Company cites William Justiss’s many phone calls objecting to the noise and odor, but
the phone records show only that calls were made, not the substance of the actual complaints. Next,
the Company notes that Justiss, in addition to complaining about noise, told plant workers that he
and his wife could hardly breathe because of the fumes, and that the smell was making them sick.
This incident, however, was memorialized only in an internal Company memorandum, which Justiss
disputed, testifying that “[t]hat was their word . . . and they stretched it.” Finally, the Company relies
heavily on letters the residents sent: one indicating “total frustration and torment” and the other
claiming that the noise disrupted the peaceful use and enjoyment of their property. But the jury
could have viewed the correspondence and Justiss’s numerous complaints as hyperbole, intended
to force the Company to act. Or the jury could have determined the plaintiffs were overly
sensitive—that a reasonable person would not have judged the odors intolerable at the time. See City
of Keller, 168 S.W.3d at 814–15.
The jury heard more than the early complaints. Plant operations began in 1992. The
plaintiffs testified that the plant’s noise and odor escalated in 1997 and 1998. This account was
6
corroborated by Tommy Rutledge, a postal worker whose route took him through Justiss’s
neighborhood. Rutledge testified that the plant’s odor became unbearable in the late 1990s. For that
reason, Rutledge asked his supervisors if he could discontinue his route to that location. TCEQ
issued the citation in 1998. The jury found that substantial interference did not occur until June 12,
1998, a date that corresponds with the postal worker’s testimony, the TCEQ citation, and the
plaintiffs’ accounts. Some evidence supports this finding.
The Company argues that there would be no statute of limitations for permanent nuisance
if a claim could be “revived” by evidence that conditions worsened. But we are dealing here with
gradations. On one end of the scale, a nuisance can be established by a physical fact that is beyond
dispute. If the nuisance consists of hazardous chemicals in the ground, the nuisance begins when
the landowner knows or should have known that the chemicals were there. See Tenn. Gas
Transmission Co. v. Fromme, 269 S.W.2d 336, 338 (Tex. 1954) (holding that limitations began to
run when the defendant began wrongfully discharging water containing harmful chemicals on the
plaintiff’s land, and “not on the date when the extent of the damages to the land were fully
ascertainable”). The result does not necessarily vary with the amount of chemicals. If the nuisance
involves largely subjective criteria like smell and sound, however, the analysis is necessarily more
fact dependent. See City of Abilene, 367 S.W.2d at 160 (distinguishing a nuisance claim based on
noxious fumes and odors from the water-based claim in Fromme and holding that the nuisance claim
did not accrue when a sewage disposal system became operational but instead accrued when
“operations of [the] sewage disposal system were such as to constitute a nuisance”). The point at
which an odor moves from unpleasant to insufferable or when noise grows from annoying to
7
intolerable “might be difficult to ascertain, but the practical judgment of an intelligent jury [is] equal
to the task.” Merrill v. Taylor, 10 S.W. 532, 534 (Tex. 1888).
Both parties presented evidence to show when the nuisance began. The jury could have
determined that the nuisance began in 1994, 1998, or never at all. The jury weighed the evidence
and found that the claim accrued in 1998, and we agree with the court of appeals that legally
sufficient evidence supports that finding.
III. Damages
The jury awarded the landowners damages for the decrease in property value the nuisance
caused. The Company challenges the evidence supporting those awards.
A. The Property Owner Rule
If a nuisance is permanent, a landowner may recover the property’s lost market value. See
Schneider Nat’l Carriers, Inc., 147 S.W.3d at 276; Pickens v. Harrison, 252 S.W.2d 575, 582 (Tex.
1952) (holding that “[i]f respondents’ suit is one for permanent damages to the land, the measure of
damages is the decreased value of the land”). This normally requires a comparison of market value
with and without the nuisance. Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978), disapproved
on other grounds, Schneider Nat’l Carriers, Inc., 147 S.W.3d at 281; Sherman Gas & Elec. Co. v.
Belden, 123 S.W. 119 (Tex. 1909).
A property owner may testify to the value of his property. We explained in Porras v. Craig,
675 S.W.2d 503, 504 (Tex. 1984), that “[o]pinion testimony concerning [damages to land] is subject
to the same requirements as any other opinion evidence, with one exception: the owner of the
property can testify to its market value, even if he could not qualify to testify about the value of like
8
property belonging to someone else.” We noted, however, that a property owner’s testimony must
be based on market, rather than intrinsic or some other speculative value of the property. Id. at 505.
We stated that “[t]his requirement is usually met by asking the witness if he is familiar with the
market value of his property.” Id.
In Porras, Craig testified that Porras bulldozed Craig’s land, decreasing the property’s value
by $20,000. Craig explained that the property was worth less to him because he had bought the land
intending to build a retirement home on it, but he and his wife had become too fearful to do so. He
stated that Porras intended to put exotic animals on his adjoining land, patrol the property with armed
guards, and place signs warning that trespassers would be shot. Craig described a fire that started
on Porras’s property and rapidly spread to his own, and he explained that his disabled wife would
have been unable to escape the fire had he not been there. Id. at 505.
We held that even though Craig was qualified to testify to his property’s decreased market
value, his testimony provided no evidence of that value. Id. Instead, Craig’s testimony referred to
personal, rather than market, value. Porras’s failure to object to the testimony was immaterial,
because “[i]rrelevant evidence, even when admitted without objection, will not support a judgment.”
Id.
So while the Property Owner Rule establishes that an owner is qualified to testify to property
value, we insist that the testimony meet the “same requirements as any other opinion evidence.” Id.
at 504. Since Porras, we have further explained when expert testimony will support a judgment.
See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231–32 (Tex. 2004).
We held that a qualified expert’s bare conclusions—even if unchallenged at trial—would not support
9
a gross negligence finding. Id. at 233. We observed that “although expert opinion testimony often
provides valuable evidence in a case, ‘it is the basis of the witness’s opinion, and not the witness’s
qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not
stand or fall on the mere ipse dixit of a credentialed witness.’” Id. at 232 (emphasis added) (quoting
Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)).4 If an expert “br[ings] to court little more than
his credentials and a subjective opinion,” his testimony will not support a judgment. Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (substitution in original). We later
observed that an expert’s testimony is conclusory as a matter of law if he “simply state[s] a
conclusion without any explanation.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd.,
249 S.W.3d 380, 389 (Tex. 2008). And testimony is speculative if it is based on guesswork or
conjecture.5
Although Coastal involved expert testimony, its holding is not necessarily limited to experts.
See Coastal, 136 S.W.3d at 233 (holding that “bare conclusions—even if unobjected to—cannot
constitute probative evidence”). We held that “[o]pinion testimony that is conclusory or speculative
is not relevant evidence, because it does not tend to make the existence of a material fact ‘more
probable or less probable.’” Id. at 232 (quoting TEX . R. EVID . 401). Coastal relied in part on Dallas
Railway & Terminal Co. v. Gossett, 294 S.W.2d 377, 380 (Tex. 1956), which held that “the naked
4
See also City of San Antonio v. Pollock, 284 S.W .3d 809, 816 (Tex. 2009) (“Bare, baseless opinions will not
support a judgment even if there is no objection to their admission in evidence.”).
5
See, e.g., B LACK ’S L AW D IC TIO N ARY 1529 (9th ed. 2009) (defining “speculation” as “[t]he act or practice of
theorizing about matters over which there is no certain knowledge”); Marathon Corp. v. Pitzner, 106 S.W .3d 724, 727
(Tex. 2003) (per curiam) (noting that causation finding cannot be supported by “mere conjecture, guess, or speculation”).
10
and unsupported opinion or conclusion of a witness does not constitute evidence of probative force
and will not support a jury finding even when admitted without objection.” Gossett involved
testimony by two drivers and an accident investigator that a street had been designated one-way. We
determined that the witnesses’ opinions provided no evidence that the street had been so designated,
because they were “simply . . . conclusions,” lacking probative effect. Dall. Ry. & Terminal Co.,
294 S.W.2d at 381.
We have also recognized that a business owner’s conclusory or speculative testimony of lost
profits will not support a judgment. See, e.g., Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
84 (Tex. 1992) (holding that owner’s testimony that he lost $200,200 in income was legally
insufficient because it “d[id] not provide any indication of how [the owner] determined what [his]
lost profits were”). Thus, we require “reasonably certain evidence of lost profits,” which “must be
based on objective facts, figures, or data.” Id.
The Property Owner Rule falls under Texas Rule of Evidence 701, which allows a lay
witness to provide opinion testimony if it is (a) rationally based on the witness’s perception and (b)
helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
TEX . R. EVID . 701; see also Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337
S.W.3d 846, 852 (Tex. 2011). Based on the presumption that an owner is familiar with his property
and its value, the Property Owner Rule is an exception to the requirement that a witness must
otherwise establish his qualifications to express an opinion on land values.6 Under the Rule, an
6
See Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W .3d 846, 851–52 (Tex. 2011)
(holding that “a witness who will be giving opinion evidence about a property’s fair market value must be disclosed and
designated as an expert pursuant to discovery and other applicable rules”); see generally J U LIU S L. S ACKM AN ET AL ., 5
11
owner’s valuation testimony fulfills the same role that expert testimony does.7 See, e.g., Harris Cnty.
Appraisal Dist. v. Riverway Holdings, L.P., No. 14-09-00786-CV, 2011 Tex. App. LEXIS 1047, at
*13 (Tex. App.—Houston [14th Dist.] Feb. 15, 2011, pet. denied) (observing that the Property
Owner Rule “treats valuation testimony from a property owner as the functional equivalent of expert
valuation testimony insofar as the owner’s own property is concerned”); cf. FED . R. EVID . 702
advisory committee’s note (holding that expert testimony rule includes “‘skilled’ witnesses, such as
. . . landowners testifying to land values”).8 Like expert testimony, landowner valuation testimony
may be based on hearsay. Burr’s Ferry, B. & C. Ry. Co. v. Allen, 164 S.W. 878, 880 (Tex. Civ.
App.—Galveston 1914, writ ref’d).
Many federal courts recognize that, notwithstanding the Property Owner Rule, an owner’s
conclusory or speculative testimony will not support a judgment. The United States Court of
Appeals for the Fifth Circuit has held that although “[i]n general, ‘an owner is competent to give his
opinion on the value of his property’ . . . such testimony cannot be based on naked conjecture or
solely speculative factors.” King v. Ames, 179 F.3d 370, 376 (5th Cir. 1999) (quoting Kestenbaum
N IC H O LS O N E M IN EN T D O M AIN § 23.04 (3d ed. 2012) (discussing nonexpert witnesses qualified to testify to land values);
3 J AM ES H. C H AD BO U RN , W IG M O RE O N E VID EN CE § 714 (rev. ed. 1970) (same).
7
We recently likened an attorney’s testimony on the reasonableness of his fees to an owner’s testimony about
the value of his property, because both are based on personal knowledge rather than merely on expertise. Garcia v.
Gomez, 319 S.W .3d 638, 641 (Tex. 2010). W e held that even conclusory attorney’s fee testimony was not objectionable,
however, because “the opposing party, or that party’s attorney, likewise has some knowledge of the time and effort
involved and if the matter is truly in dispute, may effectively question the attorney regarding the reasonableness of his
fee.” Id. But that is not the case with testimony offered under the Property Owner Rule, where the adverse party is less
likely to share a corresponding knowledge of the property’s market value.
8
See also 2 S TEVEN G O O D E ET AL ., T EXAS P RACTIC E S ERIES , G U ID E TO TH E T EXAS R U LES O F E VID EN CE § 701.3,
at 11–12 (3d ed. 2002) (noting that “[c]lassifying an opinion as either lay or expert has proved particularly troublesome
when the opinion is rooted in ‘other specialized knowledge,’” and observing that cases allowing owners to testify to the
fair market value of their property “do not fit th[e lay witness opinion] mold as neatly”).
12
v. Falstaff Brewing Corp., 514 F.2d 690, 698–99 (5th Cir. 1975)). If an owner’s estimate is
speculative, “the owner’s testimony may be of such minimal probative force to warrant a judge’s
refusal even to submit the issue to the jury.” Kestenbaum, 514 F.2d at 699.9 The Tenth Circuit has
stated “the owner’s qualification to testify does not change the ‘market value’ concept and permit
him to substitute a ‘value to me’ standard for the accepted rule, or to establish a value based entirely
upon speculation.” United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966). Thus, “a
landowner’s testimony as to the value of his property is not always sufficient testimony on which
a verdict can be based.” United States v. 10,031.98 Acres of Land, 850 F.2d 634, 637 (10th Cir.
1988). Instead, “[t]here must be a basis for the landowner’s valuation, and when the landowner’s
own testimony shows that his valuation has no probative value, the district court may determine that
the landowner’s testimony alone is insufficient to support a jury verdict.” Id.10
Several of our courts of appeals follow the same rule. A landowner who testified that a flood
reduced his property’s value by $30,000, but conceded that he “pull[ed that figure] out of the air”
provided no evidence of damages. Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 579–80 (Tex.
App.—Beaumont 2008, pet. denied). A homeowner’s testimony that she lost $60,000 when forced
to sell her home to pay creditors, was legally insufficient because she failed to explain how she
arrived at that conclusion. Lefton v. Griffith, 136 S.W.3d 271, 277 (Tex. App.—San Antonio 2004,
9
Cf. Dietz v. Consol. Oil & Gas, Inc., 643 F.2d 1088, 1094 (5th Cir. 1981) (holding that district court properly
admitted property owner’s opinion testimony that was “based on more than naked conjecture”).
10
See also Rich v. Eastman Kodak Co., 583 F.2d 435, 437 (8th Cir. 1978) (noting that “an owner may testify
as to the value of his own property; however, there must be a basis for that valuation,” and owner who failed to present
factual basis for valuation failed to raise a fact issue on damages).
13
no pet.) (noting that court had “no way of knowing” the basis of the homeowner’s estimate). A
trailer-park owner’s testimony that he would lose $10,800 in lost leases because of a condemnation
was merely a “naked and unsupported . . . conclusion” and provided no evidence of diminished
value. City of Emory v. Lusk, 278 S.W.3d 77, 88–89 (Tex. App.—Tyler 2009, no pet.) (holding that
testimony was both speculative and conclusory). And an owner whose affidavit stated that 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 provide evidence of damages because he did not state the basis for
his opinion. Trinity River Estates, L.P. v. DiFonzo, No. 2-08-393-CV, 2009 Tex. App. LEXIS 4037,
at *14–15 (Tex. App.—Fort Worth May 28, 2009, no pet.) (affirming no-evidence summary
judgment); cf. Stinson v. Cravens, Dargan & Co., 579 S.W.2d 298, 299 (Tex. Civ. App.—Dallas
1979, no writ) (holding boat owner’s testimony of value was legally insufficient, because he failed
to explain the basis for his opinion or the source of his repair estimate: “Where the owner
affirmatively demonstrates . . . that his opinion is cast in terms of approximation and estimate
unsupported by any relevant facts leading to or supporting such approximation or estimate the
opinion testimony is too conjectural.”).
The Company and the amici urge us to apply Coastal’s rule to the landowners’ testimony
here, and we agree that Coastal provides the appropriate standard for judging the adequacy of
testimony offered under the Property Owner Rule. Because property owner testimony is the
functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with
expert testimony, property valuations may not be based solely on a property owner’s ipse dixit. An
owner may not simply echo the phrase “market value” and state a number to substantiate his
14
diminished value claim; he must provide the factual basis on which his opinion rests. This burden
is not onerous, particularly in light of the resources available today. Evidence of price paid, nearby
sales, tax valuations, appraisals, online resources, and any other relevant factors may be offered to
support the claim. But the valuation must be substantiated; a naked assertion of “market value” is
not enough. Of course, the owner’s testimony may be challenged on cross-examination or refuted
with independent evidence. But even if unchallenged, the testimony must support a verdict, and
conclusory or speculative statements do not. See Kestenbaum, 514 F.2d at 699; Coastal, 136 S.W.3d
at 233.
B. The Evidence
With this in mind, we turn to the landowners’ testimony. The most detailed account came
from Joe Donald Mashburn, a lifelong resident of Howland and a loan officer for Texas Heritage
National Bank. Joe Donald and Judy Mashburn’s property includes three houses on 104 acres. Joe
Donald testified that his property’s value had decreased due to the noise and odor:
Q. Do you have an opinion as to how much it’s decreased in value?
A. Well, if I remember correctly in my deposition that I gave, I—I thought my property
was worth $650,000. It’s my home and two daughters’ homes on 102 acres—104
acres, and I thought the market value of that property based upon sales of property
around in the area, and I kind of keep up with that kind of stuff because of my job.
And I said, well, I think it’s diminished down to 250, maybe 250. So if you take the
difference in 650 and 250, that’s $400,000.
15
The Company did not cross-examine Joe Donald on this point, relying instead on its real estate
appraiser, who testified that the property would be worth $235,000 if the compressor station was not
there. This estimate, however, did not include two of the houses on the Mashburns’ property, and
the appraiser offered no opinion on diminution in value caused by the nuisance conditions. The jury
awarded the Mashburns $200,000, half of what they estimated their damages to be.
At the other end of the spectrum was the evidence from William and Darlene Justiss. The
Justisses own 1450 acres, 800 of which are affected by the noise and odor. Although William
testified that the noise and odor decreased their property’s value, he never referred to market value
or explained the basis for his valuation:
Q. And the noise and odors that you’ve noticed from the pump station from the time this
lawsuit was filed or shortly before that, do you have an opinion whether or not it’s
decreased the value of your place there?
A. Well, I’m sure it has.
Q. What’s your opinion as to the amount that it’s decreased your acreage there?
A. I don’t know. It’s a hard thing for me to say because I never ever thought in my mind
that it was worth what the price of land is bringing now. And the only thing that sold
out that way lately are the sites—
Q. Well, let’s just stick to—let’s just stick to—
A. I don’t know. I don’t know. I’m going to say probably across the whole acreage
$1250.
Q. Is that a decrease in value—
16
A. Decrease.
Q. —on the 800 acres? Is that a yes?
A. Yes.
On cross-examination, William admitted that he had not appraised the property in the two years
before trial. Darlene deferred to William’s opinion, testifying that he knew better about it than she
did. The Company’s appraiser offered no opinion on the Justiss’s property. The jury awarded the
Justisses $540,000.
The remaining landowners provided a figure when asked the market value of their property,
but none gave any supporting factual basis. Joseph Justiss testified that his property had been in his
family for 150 years and that it had “[p]robably more value [to him] than it would be worth to
anybody.” He then estimated that value: $2500–$2800 per acre without the station, and
$1000–$1100 with it. On redirect, he stated, without elaboration, that those figures represented the
fair market value of his property.
Tommy Alspaugh testified that the pump station’s “actions” lowered the value of his property
by 50%, or $1000 per acre. He did not state that he was referring to market value, offering only that
their land would be considered “high dollar land” for Lamar County. His wife, Judy, however,
testified that she agreed with Tommy’s opinion on the diminution in value caused by increased noise
and odor, and she answered “yes” when asked whether that valuation represented the market value
of their property.
Joe Denton and Christine Mashburn own a house that sits on three acres and a separate forty-
acre tract of land. Christine testified that without the compressor station their house and three acres
17
would be worth around $100,000. With the station, however, she did not think they could sell it for
more than $20,000. As for the forty-acre tract, Christine testified that in the past she thought they
could get $1000 an acre for the land but that because of the noise and odor she did not think they
could get more than half of that now. She also testified that she and Joe Denton had sold some
property about a mile north of the station for $600 an acre but could not remember exactly when the
sale took place. Christine did not specify that she was referring to the market value of their property.
Joe Denton largely agreed with Christine, and provided the following testimony:
Q. So you think it would be—the fair market value without the compressor station
would be about [$]100,000?
A. I think so.
Q. And that’s due—and then because of the compressor station being there with the
noise and the odors, do you agree with the figures she gave of [$]25,00011 being the
best that y’all might could get?
A. I imagine that would be close to it.
This was the Mashburn’s only reference to market value.
We conclude that none of this testimony provides evidence of diminished market value.
Even taking into account “East Texas vernacular,” as the court of appeals did,12 William Justiss’s
testimony is speculative. He never stated his familiarity with market values, and his passing
11
Christine Mashburn testified that the property was worth $20,000, not $25,000.
12
___ S.W .3d at ___.
18
reference to “what the price of land is bringing” is not enough. His testimony provides only his
guess as to his property’s diminution in value, and such speculation will not support a judgment.
Similarly, although a landowner need not use the phrase “market value” in describing his
valuation, merely invoking that phrase does not make otherwise conclusory or speculative testimony
legally sufficient. Cf. Jelinek v. Casas, 328 S.W.3d 526, 540 (Tex. 2010) (“While we have said that
no ‘magical words’ need be used to meet the good-faith requirement, mere invocation of the phrase
‘medical probability’ is likewise no guarantee that the report will be found adequate.”). Joseph
Justiss, Tommy Alspaugh, and Joe Denton and Christine Mashburn merely answered “yes” when
asked whether their numbers were based on market value, but they never explained how they arrived
at those figures. Joseph Justiss testified only to what made the property valuable to him. See Porras,
675 S.W.2d at 505 (holding that there was no evidence of market value where owner’s testimony
affirmatively showed that it was based on personal value). Although Joe Denton and Christine
Mashburn discussed a 2001 sale of nearby property, that reflects only their property’s value after the
nuisance, not how much the value had changed—a necessary element of permanent nuisance
damages. We conclude that the landowners’ bare conclusions provide no evidence of the damage
caused by the nuisance. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009)
(holding that “[b]are, baseless opinions will not support a judgment”).
Joe Donald Mashburn provided the most detail, but even his testimony was insufficient.
Although he 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. His statement
that it was “based on property sales around in the area” provides little more detail than using the
19
words “market value.” Cf. Arkoma, 249 S.W.3d at 389 (holding that expert’s “cursory” testimony
did not make his opinion conclusory, because accompanying exhibit explained the basis for his
conclusion). In both cases, the owners stated a conclusion without explanation; the testimony is
conclusory and no evidence.
Finally, the Company argues that the landowners’ claims fail because several of the property
owners complained about damages arising from the station’s presence, rather than merely from the
station’s noise and odor. We disagree. The jury was correctly instructed to limit its nuisance finding
to conditions arising from the station’s operation, not merely its presence. Although the landowners’
complaints sometimes referred to the station itself, there was also evidence that they objected to the
noise and odor, and even though we have found no evidence of the amount of damages, a jury could
have found that the landowners were harmed by the conditions emanating from the station.
C. Disposition
We must decide whether rendition or remand is appropriate. Generally, when no evidence
supports a judgment, we render judgment against the party with the burden of proof. See, e.g.,
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex. 2004). But we have remanded a
case to the trial court when we have changed our precedent or when the applicable law has otherwise
evolved between the time of trial and the disposition of the appeal. See, e.g., Tex. Dep’t of Pub.
Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 118 (Tex. 2011) (remanding because decision
recognized, for the first time, a common law physical safety exception to the PIA); Twyman v.
Twyman, 855 S.W.2d 619, 626 (Tex. 1993) (remanding in interest of justice because case was tried
on legal theory overruled by Court); Caller-Times Publ’g Co., Inc. v. Triad Commc’ns, Inc., 826
20
S.W.2d 576, 588 (Tex. 1992) (remand in interest of justice because Court announced new liability
standard). In Porras, we stated that market value could be shown merely “by asking the witness if
he is familiar with the market value of his property,”13 and we have never before explained the
interplay between Porras and Coastal. Because the landowners may have relied on Porras in
presenting their evidence on their properties’ diminution in value, we conclude that a remand is
appropriate.14 See Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966) (noting that remand is
appropriate where defendant requested jury issues based on precedent that was no longer
controlling), abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512, 517
(Tex. 1978).
IV. Conclusion
We reverse the court of appeals’ judgment. Because liability is contested, we remand the
case to the trial court for a new trial on liability and damages. TEX . R. APP . P. 60.2 (d), 61.2.
__________________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: December 14, 2012
13
Porras, 675 S.W .2d at 505; see also Redman Homes, Inc. v. Ivy, 920 S.W .2d 664, 669 (Tex. 1996) (applying
Porras to conclude that owner’s estimates provided some evidence of market value of personal property).
14
In light of our disposition, we do not reach the Company’s argument that the trial court’s judgment improperly
included prejudgment interest.
21