Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00675-CV
BEXAR APPRAISAL DISTRICT,
Appellant
v.
ABASTO PROPERTIES LLC, et al.,
Appellees
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-CI-12685
Honorable Cynthia Marie Chapa, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Irene Rios, Justice
H. Todd McCray, Justice
Velia J. Meza, Justice
Delivered and Filed: December 10, 2025
AFFIRMED
This is an appeal from a jury verdict in favor of property owners (“Owners”), who
challenged the appraised values of their property by the Bexar Appraisal District (the “District”).
After the jury returned a verdict in favor of Owners, the District filed this appeal, challenging the
jury’s property valuations, evidentiary rulings (including the admission of appellees’ expert
evidence), and the award of attorney’s fees. We affirm.
04-22-00675-CV
BACKGROUND
The San Antonio Wholesale Produce Market (“SAWPM”) is a unified warehouse and
distribution center for produce and other food products. Like similar cold storage wholesale
warehouse facilities in Bexar County that SAWPM competes against (for customers and tenants),
the SAWPM operates under one centralized management system with the goal of offering a variety
of produce and food products to its customers in one convenient location. The SAWPM is located
in Southeast Bexar County and is made up of sixty cold storage units. Each unit is 4,000 square
feet and is essentially the same, with the same floor plan and amount of cold storage. The sixty
units are contained in two 120,000 square feet buildings with thirty units in each building.
The sixty units are separately owned, subject to a condominium regime. In other words,
each owner owns their own unit and a 1/60th undivided interest in the commonly owned areas.
The general common elements of the SAWPM, consist of the land underneath the buildings, the
roofs, foundations, beams, supports, main walls, loading docks, roof sprinkler system, exterior
fencing, and parking area.
Abasto Properties LLC, developed the SAWPM in 2014 and sold fifty of the
condominiums. Abasto owns the remaining ten condominiums and manages the SAWPM
facilities. Before Abasto established the condominium regime and sold off the condominiums, the
District listed the 240,000 square-foot facility in Abasto’s name. After Abasto created the
condominium regime, the District created individual accounts for each unit. However, the District
still maintains an account for the entire SAWPM facility.
For tax year 2018, the District appraised each of the SAWPM condominium units at
$250,000. This appraisal includes the unit’s 1/60th undivided interest in the SAWPM commonly
owned property. These appraisals more than doubled in 2019, to $510,350, and increased to
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$531,170 in 2020. The Owners raised unequal appraisal claims pursuant to Section 42.26(a)(3) of
the Texas Property Tax Code, claiming the District’s appraised values of the sixty units (the
“Subject Properties”) in the SAWPM exceeded the median appraised value of a reasonable number
of comparable properties appropriately adjusted for tax years 2018, 2019, and 2020. Under this
statutory remedy, an owner must prove that “the appraised value of the property exceeds the
median appraised value of a reasonable number of comparable properties appropriately adjusted.”
TEX. TAX. CODE § 42.26(a)(3).
Two appraisal experts testified at trial: Josh Wood for the District and Andrew Craig for
the Owners. The only properties Wood used to determine the median appraised values were the
other, individually owned 4,000 square-foot condominiums comprising the SAWPM. In other
words, Wood’s valuation for each of the Subject Properties in this litigation was based solely upon
his valuation of the other fifty-nine Subject Properties in this litigation. Wood testified that the
median appraised values for the condominiums, depending on each unit’s finish-out, were between
$250,000 to $263,607 for 2018; $510,350 to $538,065 for 2019, and $531,170 to $559,950 for
2020.
Conversely, Craig used eleven large, cold-storage facilities as comparables, including
facilities that directly compete with SAWPM for tenants and/or produce customers. In his analysis,
Craig found a per-square-foot median appraised value of the 11 facilities and then multiplied that
number by 240,000 to arrive at a median appraised value for the entire SAWPM facility. Craig
then divided that number by sixty to apportion the median appraised value among the Subject
Properties. Craig’s per-condominium valuations were $179,560 for 2018, $200,080 for 2019, and
$209,280 for 2020.
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The jury found that the condominiums were not unequally appraised in 2018—affirming
the District’s original appraised value of $250,000 per unit. But the jury found the Subject
Properties were unequally appraised for 2019 and 2020 and determined a valuation of $260,000
per condominium for 2019 and $270,400 per condominium for 2020. The jury’s valuations fell
within the range created by Craig’s valuations and Wood’s significantly higher valuations.
Tax Year Challenged Tax Wood’s Valuation Craig’s Jury’s
Appraisal Valuations Valuation Valuation
(per Condominium)
2018 $250,000 $250,000 to $263,607 $179,560 $250,000
2019 $510,350 $510,350 to $538,065 $200,080 $260,000
2020 $531,170 $531,170 to $559,950 $209,280 $270,400
ANALYSIS
I. Challenges to the jury’s median appraised valuations
In its first two issues, the District has combined numerous complaints regarding its
argument that the trial court erred by adopting the jury’s property value findings for 2019 and
2020. An issue on appeal addressing more than one specific ground of error is multifarious. Shull
v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex. App.—San Antonio 1999, pet. denied). “We may
disregard any issue on appeal that is multifarious.” Matthews v. Matthews, No. 04-16-00609-CV,
2017 WL 4518295, at *3 (Tex. App.—San Antonio Oct. 11, 2017, no pet.) (mem. op.). See e.g.,
Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.—Austin 1996, no writ) (overruling
appellant’s sole point of error on this basis). Alternatively, we may consider a multifarious issue
if we can determine, with reasonable certainty, the alleged error about which complaint is made.
Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d).
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In the interest of justice, we have reviewed the sub-issues presented under the District’s
first two issues and we have identified, with reasonable certainty, the following alleged errors:
• The trial court erred in not excluding Owners’ expert as unreliable; 1
0F
• There was no evidence or insufficient evidence to support the jury’s property
valuations;
• The trial court erred by accepting the jury’s property valuations because the jury
was not permitted to determine the property valuations, as it was limited to
choosing between the property valuations presented by the opposing expert
witnesses.
Accordingly, we address only these issues and, to the extent the District attempted to raise other
issues relating to the jury’s property valuations, we find they have been waived. See, e.g., Martin
v. Bravenec, No. 04-14-00483-CV, 2015 WL 2255139, at *3 (Tex. App.—San Antonio May 13,
2015, pet. denied) (addressing only the issues identified with reasonable certainty).
A. The trial court’s admission of Craig’s expert testimony was not error.
The District asserts the trial court erred by not excluding Craig’s expert testimony, arguing
that Craig’s methodology was unreliable. We disagree.
Legal Standard
We review a trial court’s decision to admit or exclude expert testimony under an abuse of
discretion standard. K–Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); see also Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (“The trial court has broad discretion to
determine admissibility, and we will reverse only if there is an abuse of that discretion.”) (emphasis
added). “To determine if there has been an abuse of discretion, we look to see ‘whether the trial
court acted without reference to any guiding rules or principles.’” McLaughlin, Inc. v. Northstar
Drilling Techs., Inc., 138 S.W.3d 24, 29 (Tex. App.—San Antonio 2004, no pet.) (quoting United
Blood Serv. v. Longoria, 938 S.W.2d 29, 31 (Tex. 1997)). “A two-part test governs whether expert
1
This argument is also presented as the District’s third issue.
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testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant
and be based on a reliable foundation.” Helena, 47 S.W.3d at 499.
In non-scientific cases such as this one, the trial court ultimately has discretion to determine
how to assess reliability. Harris Cnty. Appraisal Dist. v. Houston Laureate Associates Ltd., 329
S.W.3d 52, 57 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). “Faced with nonscientific
expert testimony, the trial court must evaluate the principles, research, and methodology
underlying the expert’s conclusions.” Ramirez v. Mansour, No. 04-06-00536-CV, 2007 WL
2187103, at *4 (Tex. App.—San Antonio Aug. 1, 2007, no pet.) (mem. op.) (citing Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713, 725 (Tex. 1998)). “An expert must show a connection
between the data relied upon and the opinion offered.” Id. (citation omitted). In determining
whether an expert’s research and analysis is based on a reliable foundation, “[t]he trial court is not
to determine whether an expert’s conclusions are correct, but only whether the analysis used to
reach them is reliable.” Gammill, 972 S.W.2d at 728; see also State Farm Lloyds v. Mireles, 63
S.W.3d 491, 494 (Tex. App.—San Antonio 2001, no pet.) (same). “Appraising property is not an
exact science based on set mathematical formulas. It is not error for an appraiser to use his or her
personal experience and expertise to make certain determinations.” Harris Cnty. Appraisal Dist. v.
Kempwood Plaza Ltd., 186 S.W.3d 155, 161 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Analysis
The District’s assertion that Craig’s methodology was unreliable is based on Criag’s
decision to treat the 240,000 square foot SAWPM cold-storage facility as a single property for the
purposes of selecting comparable properties, and then, after determining a median appraised value
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from the comparables he selected, apportioning the resulting valuation of the SAWPM facility to
the sixty individual units. 2 1F
But underlying Craig’s decisions is the fact that SAWPM’s condominium regime is a
unique ownership structure that has created individually owned and taxable properties (4,000
square feet cold-storage units) that exist nowhere else in Bexar County.
The District argues that only Wood’s approach—comparing each subject property to the
other fifty-nine units—was reasonable. But Craig explained he did not consider the other
condominiums as comparables because they are “the subject property.” Likewise, while Wood
used the other fifty-nine Subject Properties as comparables, he testified that he had never before
used subject properties as comparables for another subject property in an equal and uniform
valuation appraisal report.
The record shows that Wood excluded seven potential comparables because of their age
and/or their size (too large). But these two factors may be part of the “appropriate adjustments”
required under section 42.26(a)(3). See Houston Laureate, 329 S.W.3d at 58 (noting the propriety
of adjusting “appraised values based on factors such as size, age, and location” in a section
42.26(a)(3) comparison). 3 Additionally, in 2017, the Supreme Court of Texas noted that the text
2F
of section 42.26 rejects the notion that comparables must be identical to the subject property.
As we noted at the outset, the Tax Code provides that “a property is appraised
unequally if [its] appraised value . . . exceeds the median appraised value of a
reasonable number of comparable properties appropriately adjusted.” The statutory
acknowledgment that properties may need to be “appropriately adjusted” shows
that “comparable” does not mean “identical.” The Tax Code only requires that the
selection of comparable properties be based on generally accepted methods.
2
The District also asserts that Craig admitted he had no authoritative support for his methodology, but reviewing the record we find that Craig’s testimony, in context, does not make that admission.
3
Texas courts have repeatedly recognized that there is no set formula for making the “appropriate adjustments” required by section 42.26. See, e.g., Amreit SSPF Preston Towne Crossing LP v. Collin Cent. Appraisal Dist., No. 05-19-00185-CV, 2020 WL 1921685, at *4 (Tex. App.—Dallas Apr. 21, 2020, no pet.) (mem. op.) (“The statute provides no instruction concerning the nature of an “appropriate adjustment,” leaving that to an appraiser’s discretion and expertise.”).
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Valero Ref.-Tex., L.P. v. Galveston Cent. Appraisal Dist., 519 S.W.3d 66, 74 (Tex. 2017) (quoting
TEX. TAX CODE § 42.26(a)(3) and citing TEX. TAX CODE § 23.01(f)). 4 3F
In Valero, the Court rejected the taxing authority’s argument that the uniqueness of the
subject property (an oil refinery with limited production capacity) precluded using larger refineries
in the district as comparables under section 42.26(a)(3). Instead, the Court focused on the similarity
of subject properties’ business functions and noted that the exclusion of these comparables would
deprive an owner’s right to challenge an unequal appraisal.
The District argues that no two refineries are really the same, and that some, but
not all, are comparable. While it is certainly true that every piece of real estate is
unique, and the same is no doubt true of complex properties like oil refineries, that
uniqueness does not preclude similar properties from being compared. The
District’s view of comparability would deny refinery owners a claim that their
constitutional right to fair and equal taxation had been denied. The District also
argues, less broadly, that there is no evidence in this record that the Marathon
refinery, with much less capacity and complexity than Valero’s and BP’s refineries,
is comparable to them. But Valero presented evidence that the three refineries each
had the same business functions (processing crude oil), similar storage facilities,
equal access to utilities, and on-site support facilities
Valero, 519 S.W.3d at 74 (emphasis added).
The Valero decision supports Craig’s decision to use larger cold-storage facilities given
the lack of similarly sized comparables in Bexar County. Further, it provides some support for
examining how SAWPM operates as a business in order to select comparable facilities. 5 4F
Additionally, the record reflects that Craig reviewed the District’s appraisal records and selected
comparable properties based on the District’s classification of property types and descriptions. 6 In 5F
4
Section 23.01(f) simply provides that generally accepted appraisal methods and techniques must be followed in a 42.26(a)(3) analysis. See TEX. TAX CODE § 23.01 (f) (“The selection of comparable properties and the application of appropriate adjustments for the determination of an appraised value of property by any person under Section 41.43(b)(3) or 42.26(a)(3) must be based on the application of generally accepted appraisal methods and techniques. Adjustments must be based on recognized methods and techniques that are necessary to produce a credible opinion.”). 5
Accordingly, we reject the District’s assertion that Craig had no support for including SAWPM’s business model, as a “coordinate, cohesive facility” in his methodology.
6
Conversely, Wood did not review any of the District’s appraisal records when searching for comparable properties. Instead, he used a database called “CoStar” to identify eight cold storage facilities in San Antonio.
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Valero, the Court recognized that “[t]he District’s use of similar accounts and appraisal methods
itself shows a measure of comparability.” Id.
Finally, after adjusting for factors including age, location (access and exposure), quality
(features and construction), land-to-building ratios, and cold storage capacity, Craig arrived at a
per-square-foot median appraised value for the comparable properties. He then multiplied that
number by 240,000 to arrive at a median appraised value for the SAWPM facility and then divided
that number by sixty to allocate the median appraised value among the Subject Properties.
We do not agree with the District’s contention that apportioning the appraised value in this
manner is contrary to law and, therefore, unreliable. First, the District has not presented a single
case to support this position. Second, Fernando Narvaez, SAWPM’s property manager, testified
that under the condominium declarations, each Owner is responsible for paying its portion of the
taxes assessed on the common elements of the SAWPM facility.
Q Sir, on page 8 of the declaration that I’ve handed you, it says ad valorem
assessment and taxation. Do you see that?
A Yes.
Q And it says: “Declarant,” which would be Abasto, “shall give written notice to
the assessor of the creation of the condominium ownership of this property as is
provided by law so that each condominium unit and its percentage of an undivided
interest in the general common elements shall be deemed as a separate parcel and
subject to separate assessment and taxation.”
And the reason they had to notify the tax assessor collector is so that each
condominium and its percentage of its undivided 1/60th is deemed as a separate
parcel subject to separate taxation and valuation, correct?
A Yes. 76F
The District has confirmed that in the individual accounts established for the condominium units,
“[t]he units include a 1/60th undivided interest in commonly owned areas including but not limited
to the land itself.” In other words, the appraised and assessed values of the commonly owned
7
Emphasis added.
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elements of the SAWPM property is allocated by the District to the sixty separately owned units.
By apportioning the taxes assessed on the common elements of the SAWPM facility to the
individual condominiums—rather than maintaining a separate account for those taxes—the
District has tacitly recognized the propriety of allocating the appraised value, and resulting
taxation, to the sixty units.
Finally, we note that the Craig’s appraised value for each condominium would have been
the same if he had taken the per-square-foot median appraised value for the comparable properties
and simply multiplied it by 4,000—the number of square feet in each unit—as Wood did.
Accordingly, Craig’s allocation method did not alter the resulting median appraised value of any
of the Subject Properties.
We conclude the problems the District points out do not amount to an analytical gap in
Craig’s analysis. Therefore, we cannot say the trial court abused its discretion to determining that
Craig’s analysis was based upon a reliable foundation. See Houston Laureate Associates Ltd., 329
S.W.3d at 57 (“In determining whether an expert’s research and analysis is based on a reliable
foundation, the trial court does not decide whether the expert’s conclusions are correct; instead,
the trial court must determine whether the analysis used to reach those conclusions is reliable.”).
B. Craig’s expert testimony was sufficient to support the jury’s findings.
The District asserts that no evidence or insufficient evidence supports the jury’s findings
that the Subject Properties had been unequally appraised and the jury’s valuations for the Subject
Properties. We disagree.
Legal Standard
Generally, in reviewing a no evidence claim, we view the evidence in a light that tends to
support the finding of the disputed fact and disregard all evidence and inferences to the contrary.
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Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). “If more than a scintilla
of evidence exists to support the finding, the no evidence challenge fails.” DiMiceli v. Affordable
Pool Maint., Inc., 110 S.W.3d 164, 168 (Tex. App.—San Antonio 2003, no pet.) (citing Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, 960 S.W.2d 41, 48 (Tex. 1998)). More than
a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level
that would enable reasonable and fair-minded people to differ in their conclusions. Id. (citing
Minyard, 80 S.W.3d at 577).
However, if a party asserts on appeal that unreliable scientific evidence or expert testimony
is not only inadmissible, but also that its unreliability makes it legally insufficient to support a
verdict, “a no-evidence review encompasses the entire record, including contrary evidence tending
to show the expert opinion is incompetent or unreliable.” Whirlpool Corp. v. Camacho, 298
S.W.3d 631, 638 (Tex. 2009).
“In reviewing a factual insufficiency point, we consider and weigh all of the evidence in
the case and reverse only if the verdict is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.” Computize, 2004 WL 86143, at *2 (citing Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1998)). “[H]owever, we may not pass on the credibility of the witnesses or
the weight given their testimony, and we may not interfere with the jury’s resolution of conflicts
in the evidence.” Am.’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 628 (Tex. App.—San
Antonio 1996, writ denied).
“In conducting a factual sufficiency review, we must not substitute our judgment for that
of the jury, even if the evidence would clearly support a different result, and the jury is the sole
judge of the credibility of the witnesses and the weight to be given to their testimony.” Computize,
2004 WL 86143, at *2 (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)).
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See also Samaras, 929 S.W.2d at 628-29 (“Where conflicting evidence is presented, we are not
called upon to reweigh the evidence; thus, the jury’s verdict on such matters is generally considered
to be conclusive.”). “We set aside the verdict only if it is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and manifestly unjust.” DiMiceli, 110 S.W.3d at 169 (citing
Cain, 709 S.W.2d at 176).
Analysis
The District challenges both the legal and factual sufficiency of the evidence to support the
jury’s finding that the Subject Properties had been unequally appraised and the jury’s valuations
for the Subject Properties. The District asserts no evidence supports the jury’s findings because
Wood’s testimony purportedly demonstrated that Craig’s methodology was unreliable. The
District further argues the only reliable evidence—Wood’s expert opinion that the Subject
Properties were not unequally appraised and his valuations of same—was insufficient to support
the jury’s contrary findings.
However, as discussed above, we have already determined that the trial court did not abuse
its discretion in finding that Craig’s testimony was reliable. While expert testimony may be used
to prove the opposing expert’s evidence is unreliable—and therefore legally insufficient to support
a jury’s verdict—we do not find that Wood’s testimony demonstrated that Craig’s expert evidence
was unreliable. Accordingly, we find that Craig’s expert testimony was legally sufficient to support
the jury’s finding.
For the same reason, we find that the evidence was factually sufficient to support the jury’s
verdict. See Banquete Indep. Sch. Dist. v. Tenneco, Inc.--Tennessee Gas Pipeline Div., 618 S.W.2d
824, 828 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (“The appraisal testimony of Mr.
Green constituted some evidence which the jury was entitled to consider in determining the market
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value of the property in question, and it was within the province of the jury to determine the weight
to be given his testimony.”) (citing Texas Electric Service Co. v. Wheeler, 551 S.W.2d 341, 342
(Tex. 1977)).
This case boils down to a battle of the experts, and the jury is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. See Maritime Overseas
Corp., 971 S.W.2d at 407; Samaras, 929 S.W.2d at 628-29. A finding of sufficiency is also
supported by the fact that the jury’s valuations fell within the range provided by Craig’s valuations
and Wood’s valuations. See Calhoun/Holiday Place, Inc. v. Wells Fargo Bank, N.A., No. 01-14-00872-CV, 2016 WL 7671372, at *5–6 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, pet.
denied) (mem. op. on reh’g) (holding that evidence was legally and factually sufficient to support
jury’s verdict of market value because finding was within range of evidence presented at trial); see
also Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 49 (Tex. App.—San Antonio 2006, no pet.)
(“The jury generally has broad discretion to award damages within the range of evidence presented
at trial.”).
Additionally, Craig’s selection of comparable properties was based in part on the
classification of property types and descriptions used by the District. This amounts to some
evidence that would support a jury’s decision to place more reliance on the comparable properties
chosen by Craig. See Valero, 519 S.W.3d at 74 (“The District’s use of similar accounts and
appraisal methods itself shows a measure of comparability. This was some evidence to support the
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jury’s finding that Marathon was a comparable facility for the purpose of an equal-and-uniform
challenge.”). 87F
Even if the trial court had excluded Craig’s testimony, the record contains sufficient
evidence to support the jury’s verdict. Wood testified that the median appraised values for the
Subject Properties were between $250,000 to $263,607 for 2018. While he provided testimony
that those values doubled to $510,350 to $538,065 for 2019 (and increased again in 2020), it was
within the province of the jury to determine the weight to be given to his testimony. See Barrajas
v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex. App.—San Antonio 1997, no writ) (“[A]
jury may choose to be guided by expert testimony on damages, but it is not bound by it. In fact,
the jury may disbelieve a witness . . . even though his testimony is not contradicted.”) (citations
omitted). “It is fundamental that a jury may blend the evidence admitted before it and believe all,
some or none of a witness’s testimony.” State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313,
321 (Tex. App.—San Antonio 2002, pet. denied), abrogated on other grounds, Don’s Bldg.
Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20 (Tex. 2008).
Accordingly, the jury may have found Wood’s 2018 median appraised valuations for the
Subject Properties credible while still rejecting his appraised valuations for 2019 and 2020. The
jury’s more modest increases in median appraised value for those years still fall between $250,000
and $559,950, the range of values presented by Wood for tax years 2018-2020. See Aspenwood
Apartments Partners, LP v. Harris Cnty. Appraisal Dist., No. 01-20-00335-CV, 2022 WL
1249956, at *14 (Tex. App.—Houston [1st Dist.] Apr. 28, 2022, no pet.) (mem. op.) (upholding
8
Craig’s selection of comparables also included cold-storage facilities that directly compete with SAWPM, which operates as a cohesive, coordinated, cold-storage facility that provides mixed-loads of produce for its customers. Conversely, while Wood testified that a customary first step in undertaking an appraisal report is to ask what properties the subject property competes with, he admitted he did not seek information regarding who SAWPM’s competitors were, and did not even know what a “mixed-load” was.
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jury verdict where property owner provided the only evidence on equal and uniform value and jury
verdict departed from that valuation).
Finally, the District asserts there was no evidence or insufficient expert evidence to support
the jury’s median appraised values for the Subject Properties in 2019 and 2020.
[N]o evidence or insufficient evidence supports that the condos’ median appraised
values could be found by using a prior-year’s certified values of $250,000 and
applying a 4% increase to calculate a median of $260,000 per condo for 2019. No
evidence or insufficient evidence supported taking the Jury’s 2019 calculation and
applying the same 4% increase to arrive at $270,400 per condo for 2020. Further,
there was no evidence or insufficient evidence that a median appraised value could
be determined by a percentage increase to a prior-year’s certified values. No expert
testified and no other evidence supported a percentage increase to a prior-year’s
certified value of any amount to determine a median appraised value for a
subsequent year.
While posited as an evidentiary complaint, the District actually challenges the jury’s purported
methodology. But the jury’s methodology is not before us. See First Nat. Bank in Dallas v.
Zimmerman, 442 S.W.2d 674, 678 (Tex. 1969) (“The jury’s reasons for reaching a particular
verdict are irrelevant, at least in the absence of some overt act of misconduct.”); Vela, 203 S.W.3d
at 48-49 (Tex. App.—San Antonio 2006, no pet.) (“[T]he mental process by which the jury
determined the amount of the verdict is ordinarily not cognizable by an appellate court . . . and the
reviewing court is not permitted to speculate on how the jury actually arrived at its award.”).
Although the evidence in this case may have supported a different result, we are not
permitted to substitute our judgment for that of the jury. Computize, 2004 WL 86143, at *2. The
jury’s valuations are within the range of trial evidence and, therefore, are not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we conclude
the evidence is legally and factually sufficient to support the jury’s findings.
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C. It is the jury’s province to determine the median appraised value.
The District asserts the trial court erred by accepting the jury’s property valuations because,
it argues, the jury is not qualified to calculate median appraised values on its own. We disagree.
Analysis
Because the jury’s median appraised values differed from the values proffered by Wood
and Craig, the District concludes the jury improperly determined the valuations on its own. The
District argues this is error, asserting the jury is not permitted to determine the median appraised
values of the Subject Properties because the members are not qualified to apply recognized
appraisal methods and techniques, find comparable properties, and make appropriate
adjustments—as required for an equal-and-uniform analysis. See TEX. TAX CODE §§ 23.01;
42.26(a)(3). The District concludes that the jury was therefore limited to choosing either Wood’s
or Craig’s valuations.
We recognize that “[a]ppraisal expertise is a form of ‘specialized knowledge used to assist
the trier of fact to determine a fact in issue.’” Rocksprings Val Verde Wind, LLC v. Casanova, No.
04-22-00524-CV, 2024 WL 5248451, at *4 (Tex. App.—San Antonio Dec. 31, 2024, no pet.)
(quoting Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002)). It is precisely
because the jury does not have this expertise that expert testimony is permitted. Despite this
assistance, however, it remains the province of the jury to weigh the competing expert valuations
and determine the median appraised value. See Aspenwood Apartments Partners, LP., 2022 WL
1249956, at *14 (upholding jury verdict that departed from only evidence on equal and uniform
value); see also Vela, 203 S.W.3d at 51 (“The jury was not required to unquestioningly accept
Howell’s damages model, but was entitled to make credibility determinations and weigh the
competing expert testimony about Howell’s model and the variables and assumptions upon which
- 16 -04-22-00675-CV
it was based.”); Am.’s Favorite Chicken Co., 929 S.W.2d at 629 (noting “[t]he jury was free to
weigh this evidence in light of the various issues raised as to each party’s model” and upholding
verdict where “[t]he jury did not unquestioningly accept the testimony of [plaintiff’s] expert but
reduced the amount of damages presumably based on certain challenges made by [defendant] to
the expert’s model”); see also Bexar Cnty. Appraisal Dist. v. Abdo, 399 S.W.3d 248, 259 (Tex.
App.—San Antonio 2012, no pet.) (holding that a jury instruction which quotes the language of
section 42.26(a)(3) “requires the jury to determine the equal and uniform value in comparison to
comparable properties appropriately adjusted.”).
The District has not identified, nor have we found, any Texas case supporting the District’s
assertion that a jury’s role in an unequal appraisal case is more limited than in a market value case
or any other valuation case—in which the jury has the ability to assign a valuation within the range
of evidence presented. See Calhoun/Holiday Place, Inc., 2016 WL 7671372, at *5–6 (upholding
jury’s verdict of market value because finding was within range of evidence presented at trial);
Aspenwood Apartments Partners, LP., 2022 WL 1249956, at *11 (upholding jury’s determination
of market value which was “within the range of evidence presented at trial”). To hold otherwise
would take away the jury’s role as the factfinder under section 42.26(a)(3) of the Tax Code. 9 8F
Accordingly, we conclude the trial court did not err when it adopted the jury’s valuations
of the Subject Properties for 2019 and 2020. The District’s first two issues are overruled.
9
Contrary to the District’s assertions, we find nothing in the text of section 42.26(a)(3) to indicate that a jury’s valuation must be an either/or choice between opposing expert valuations rather a valuation that falls within the range of evidence presented at trial. The District’s assertion also conflicts with section 42.26(b). See TEX. TAX CODE § 42.26(b) (“The court shall determine each applicable median level of appraisal or median appraised value according to law, and is not required to adopt the median level of appraisal or median appraised value proposed by a party to the appeal.”) (emphasis added).
- 17 -04-22-00675-CV
II. Challenges to the Owners’ expert
In its third issue, the District asserts the trial court erred by not excluding Owners’ expert
as unreliable. As addressed above in Section I(A), we cannot say the trial court abused its discretion
to determining that Craig’s analysis was based upon a reliable foundation. Accordingly, the
District’s third issue is overruled.
III. Challenges to evidentiary rulings
In its fourth issue, the District asserts the trial court committed harmful error by: 1)
admitting evidence of the District’s certified appraised values of the Subject Properties; 2) ordering
the District to present its expert to authenticate one of Owners’ exhibits; and 3) excluding evidence
of the recent sales prices of certain Subject Properties. We disagree.
Legal Standard
“Evidentiary rulings are committed to the trial court’s sound discretion.” U-Haul Intern.,
Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). “A trial court abuses this discretion when it
acts without regard for guiding rules or principles.” Id. Even if a trial court abuses its discretion
on evidentiary matters, “reversal is only appropriate if the error was harmful, i.e., it probably
resulted in an improper judgment.” Id.; see also TEX. R. APP. P. 44.1(a). “Reversible error does
not usually occur in connection with evidentiary rulings ‘unless the whole case turns on the
particular evidence admitted or excluded.’” In re C.C.O., 714 S.W.3d 198, 210 (Tex. App.—San
Antonio 2024, no pet.) (quoting McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 29 (Tex.
App.—San Antonio 1998, pet. denied). “We review the entire record and require the complaining
party to demonstrate that the judgment turns on the particular evidence admitted.” Bay Area
Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). Likewise, we
“will not reverse a judgment because a trial court erroneously excluded evidence when the
- 18 -04-22-00675-CV
evidence in question is cumulative and not controlling on a material issue dispositive to the case.”
Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
Analysis
A. The trial court did not err in admitting the District’s certified appraised values for the
Subject Properties.
The District asserts its 2018-2020 certified appraised values for the Subject Properties
should not have been admitted as evidence because an appeal of an appraisal review board
(“ARB”) decision is a de novo proceeding and, pursuant to section 42.23(b) no prior action by the
ARB may be admitted as evidence.
But the District provides no support for its assertion that its certified appraised values are
to be considered a “prior action by the appraisal review board.” Instead, cases reviewing the scope
of a de novo trial following state agency decisions explain that the “prior action” that may not be
admitted is the prior proceeding and final decision of the reviewing agency. See, e.g., PR
Investments & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 476 (Tex. 2008) (explaining that
in a de novo trial under Texas Property Code section 21.018 “the proceedings that occurred before
the special commissioners are not considered”).
Moreover, section 42.23 specifies that the reviewing court “shall try all issues of fact and
law raised by the pleadings.” TEX. TAX CODE § 42.23(a). See also Sebastian Cotton & Grain, 555
S.W.3d at 50 (“A trial de novo is ‘[a] new trial on the entire case—that is, on both questions of
fact and issues of law—conducted as if there had been no trial in the first instance.’”) (quoting
BLACK’S LAW DICTIONARY (10th ed. 2014)). Given that the central issue to be determined
in a de novo review under section 42.26(a)(3) is whether “the appraised value of the property
exceeds the median appraised value of a reasonable number of comparable properties
appropriately adjusted,” it is self-evident that the appraised value of the subject property is
- 19 -04-22-00675-CV
relevant, admissible evidence. 10 See In re Catherine Tower, 553 S.W.3d 679, 686 (Tex. App.—
9F
Austin 2018, orig. proceeding) (stating that for “the analysis prescribed by Section 42.26(a)(3) . .
. one merely takes the appraised values of the subject property and of the comparison properties
as ‘found on the tax rolls’ and compares them, and ‘the only independent analysis required is
adjusting the appraised values [of the comparison properties] to put the properties on equal
footing.’”) (quoting Harris Cnty. Appraisal Dist. v. United Inv’rs Realty Tr., 47 S.W.3d 648, 653
(Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“Common sense dictates it is easier to
prepare a protest by merely comparing the appraised values—found on the tax roles[.]”); Harris
Cnty. Appraisal Dist. v. Duncan, 944 S.W.2d 706, 709 (Tex. App.—Houston [14th Dist.] 1997,
writ denied) (“[T]he appraisal value to be used by the district court is simply the most current one
on the tax rolls[.]”). Accordingly, we conclude the trial court did not err when it admitted the
District’s certified appraised values for the Subject Properties for the tax years 2018-2020.
Even if it was error to admit these appraised values, such error was harmless because it was
merely cumulative of other properly admitted evidence. See Jackson v. Takara, 675 S.W.3d 1, 7
(Tex. 2023) (“[T]he erroneous admission of cumulative evidence or evidence that does not control
a material and dispositive issue is generally harmless and thus does not require reversal of the trial
court’s judgment.”). “In evaluating whether erroneously admitted evidence is harmless, we review
the entire record, considering, in particular, the “‘state of the evidence, the strength and weakness
of the case, and the verdict.’” Id. (quoting Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d
867, 871 (Tex. 2008).
10
We also note that jury charge questions number 1, 3, and 5 asked the jury if “the Subject Properties shown below unequally appraised by Bexar Appraisal District” for the tax years 2018, 2019, and 2020, and that the District concedes the jury charge tracked Section 42.26(a)(3).
- 20 -04-22-00675-CV
Reviewing the entire record, we find that the District’s certified appraised values for the
Subject Properties were introduced through the reports and testimony of both parties’ expert
witnesses. First, Craig explained to the jury that the “BCAD Value” listed in his equal-and-uniform
comparative analysis grids (Plaintiffs’ Exhibit 5), represents the total appraised value of the sixty
Subject Properties.
What I’m stating here for 2018 of the 15 million, that’s the Bexar County Appraisal
District value. I’m not determining that value. What I’m doing is adding together
the individual units that comprise the subject property to arrive at this number.
Q Is the BCAD value on your appraisal grids on page 46, is that simply just for
ease of referring to the BCAD value for all of the 60 accounts together?
A Yes.
Additionally, Craig’s grid also included the District’s appraised values for the Subject Properties
broken down to the square foot--$62.50 for 2018, $127.59 for 2019, and $127.80 for 2020.
Second, because Wood only used the fifty-nine other Subject Properties as comparisons for
each of the Subject Properties, his “adjustments” were to the District’s appraised values for those
properties, broken down to the square foot. Accordingly, Wood explained that a zero percent
adjustment on his Adjustment Grid meant that the “Adjusted Appraised Value/SF” was the
District’s appraised value for that property.
The $62.50, that was the appraised value from the District. . . . Add zero percent to
that and you get $62.50.
Therefore, as with Craig’s appraisal grid, Wood’s grid (Defendant’s Exhibit 18) contained the
appraised values for the Subject Properties broken down to the square foot--$62.50 for 2018,
- 21 -04-22-00675-CV
$127.59 for 2019, and $127.80 for 2020. Accordingly, we find that the appraised values for the
Subject Properties in Plaintiffs’ Exhibit 13 were merely cumulative of other admitted evidence. 11 10F
B. It was not error to have Wood authenticate Plaintiffs’ Exhibit 13.
The District asserts the trial court erred by allowing the Owners to call Wood, the District’s
expert witness, to authenticate Plaintiffs’ Exhibit 13. The District contends that, pursuant to Rule
193.6(a), the Owners’ failure to designate Wood as a witness, or subpoena him to testify, should
foreclose introduction of Wood’s testimony at trial. But the District’s position ignores the fact that
Wood’s testimony became necessary only when the District challenged the authenticity of a portion
of its own expert report, prepared by Wood.
“Under Rule 193.6, a party may not offer testimony from a witness that was not timely
identified unless the trial court finds that (1) there was good cause for the failure or (2) the failure
‘will not unfairly surprise or unfairly prejudice the other parties.’” Jackson v. Takara, 675 S.W.3d
1, 6 (Tex. 2023) (quoting TEX. R. CIV. P. 193.6(a)). “Thus, once it is determined that the witness
was not timely designated, a trial court must inquire whether there is (1) good cause for failing to
timely identify the witness or (2) a lack of unfair surprise or unfair prejudice.” Id. The burden of
establishing this exception is on the party seeking to call the witness or introduce the evidence.
TEX. R. CIV. P. 193.6(b).
However, in Alvarado v. Farah Mfg. Co., the Supreme Court of Texas recognized “there
may be circumstances in which good cause can be shown for admitting testimony of an undisclosed
witness . . . as for example when the need for the testimony could not reasonably have been
11
Even if the evidence had not been cumulative, Wood later testified that Plaintiff’s Exhibit 13 had a typo, and corrected it by verifying that the BCAD value of $250,000 was the appraised value for the Subject Properties in 2018 rather than 2019. Accordingly, we also reject the District’s contention that Plaintiffs’ Exhibit 13 was the only source of evidence for the jury to determine $250,000 as a starting point for determining the median appraised values for 2019 and 2020.
- 22 -04-22-00675-CV
anticipated[.]” 830 S.W.2d 911, 916 n.6 (Tex. 1992) (emphasis added). Then, in Aluminum Co. of
Am. v. Bullock, the Court applied this exception to find the trial court acted within its discretion in
allowing defendant Aluminum Company of America (“Alcoa”) to call expert witnesses it had not
designated—but that had been designated by the plaintiffs and a co-defendant—to provide rebuttal
testimony when another of plaintiffs’ experts changed her testimony at trial. 870 S.W.2d 2, 3-4
(Tex. 1994).
A party’s failure to supplement discovery to disclose a material change in an
expert’s opinion may provide good cause for an adverse party’s failure to designate
rebuttal experts who become necessary only to counter the unanticipated testimony.
Rule 166(h), for example, allows a court to set a pretrial order requiring parties to
exchange a list of witnesses expected to be called at trial, but specifically excepts
“rebuttal or impeaching witnesses the necessity of whose testimony cannot
reasonably be anticipated before the time of trial.” Likewise, Rule 166b(6)(b)
requires the parties to supplement only those experts “the party expects to call.”. . .
. We hold, based on all of the facts before us, that the trial court acted within its
discretion when finding that Alcoa met its burden of showing good cause for
allowing the experts’ testimony in rebuttal of a material and unanticipated change
in testimony.
Id., at 4 (citations omitted).
In the case at bar, Owners sought to introduce excerpts from Wood’s expert report that
contained the District’s certified appraised values for the Subject Properties. In response, the
District unexpectedly argued that its own expert’s report was not authentic. We find that it was
within the trial court’s discretion to have Wood testify to address this unanticipated circumstance.
Even if it was error to have Wood testify, such error was harmless. As discussed in the
previous section, the appraised values in Plaintiffs’ Exhibit 13 were cumulative of other properly
admitted evidence. Accordingly, any error in having Wood authenticate the exhibit was harmless.
See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (“The erroneous admission
of testimony that is merely cumulative of properly admitted testimony is harmless error.”).
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C. It was not error to exclude recent sales prices of some of the Subject Properties.
The District asserts the trial court erred by excluding the recent sales prices of some of the
Subject Properties—arguing that the information was necessary rebuttal evidence to explain the
rise in certified appraised values shown in Plaintiffs’ Exhibit 13. In support of its position, the
District cites Waldrep v. Tex. Emp’rs Ins. Assoc, for the proposition that evidence that may be
initially inadmissible may become relevant and admissible in rebuttal. 21 S.W.3d 692, 706 (Tex.
App.—Austin 2000, pet. denied). However, Waldrep continues: “[b]ut the alleged rebuttal
evidence must be in fact offered to rebut other evidence, not as a part of the proponent’s case-inchief.” Id.
At no point in the record does the District refer to this as rebuttal evidence. Instead, the
District argued to the trial court that the sales prices were necessary because of comments made in
Owners’ opening statements.
Your Honor, one of the motions in limine was we were not supposed to talk about
sales prices of any of the subject property pretrial. However, during opening
statement, Ms. Michel said you’re going to see that the value increased from
$250,000 per unit to over $500,000 a unit. That’s an increase of over 100 percent,
and no one’s going to be able to explain why. Well, the why is we have sales of
these things of over half a million dollars. . . She didn’t just say the appraised value
doubled. She said, And [sic] no one can tell you why. And then -- so that’s one
issue. The second issue is when she identifies, What’s to stop them? We have to
identify that what stops the Appraised District from going up indefinitely is they’re
limited to sales prices, to market value. . . . She opened the door to this. . . . She
posed the question. We should have the right to answer it.
But “[r]ebuttal evidence is limited . . . and goes only to disprove facts already in evidence by an
adverse party.” In re Spotted Lakes, LLC, No. 04-23-00815-CV, 2024 WL 463348, at *4 (Tex.
App.—San Antonio Feb. 7, 2024, no pet.) (mem. op.) (quoting In re Bledsoe, 41 S.W.3d 807, 813
(Tex. App.—Fort Worth 2001, orig. proceeding)) (emphasis added). Therefore, because the
argument of counsel is not evidence, rebuttal evidence is not available to counter the bare
- 24 -04-22-00675-CV
assertions of counsel. Spotted Lakes, at *4. Accordingly, it was not an abuse of discretion for the
trial court to exclude the sales prices offered as rebuttal evidence. 12 11F
However, the granted motion in limine mentioned by the District’s counsel—which
excluded the sales price evidence—was based on Catherine Tower, which held that market value
evidence is not relevant in an equal and uniform challenge under section 42.26(a)(3). See Catherine
Tower, 553 S.W.3d at 685–87. But, after the parties’ briefing in this matter had been submitted,
the Supreme Court of Texas expressly disapproved of Catherine Tower and other “courts of
appeals cases to the extent they suggest that market value of the subject property is per se irrelevant
in unequal-appraisal litigation.” Tex. Disposal Sys. Landfill, Inc. v. Travis Cent. Appraisal Dist. by
& through Crigler, 694 S.W.3d 752, 762 n.58 (Tex. 2024) (citations omitted). 13 12F
[E]ven though the Tax Code limits the trial court’s determination in this case to an
appraisal amount that is equal and uniform, evidence of a subject property’s fair
market value is relevant to both the taxpayer’s challenge and the trial court’s duty
to set the subject property’s appraised value at an equal and uniform amount, which
as we have said, should approach the property’s market value. . . . Thus, evidence
of the subject property’s fair market value is admissible in either kind of taxpayer
protest[.]
Id., at 762. Because, Texas Disposal eliminates the prior understanding that fair market value
evidence was irrelevant to the underlying proceeding, the District filed supplemental briefing with
this Court asserting the sales prices should have been admitted as relevant market value evidence.
But Texas Disposal does stand for the proposition that the recent sales prices were
automatically relevant, admissible evidence of fair market value. As noted above, SAWPM’s
12
We also note again that, as discussed above, Wood’s testimony and his Adjustment Grid both contained evidence of the appraised valuations. Accordingly, the admission of Plaintiffs’ Exhibit 13 was cumulative of the District’s own evidence—so rebuttal evidence was not warranted.
13
Because the Texas Disposal decision is to be applied retroactively, we will evaluate its implications for the matter before us. See Interest of J.O.L., 668 S.W.3d 160, 164–65 (Tex. App.—San Antonio 2023, pet. denied) (“As a general rule, judicial decisions, including those of the Texas Supreme Court, apply ‘retroactively’ to preexisting cases that have not yet been concluded by a final judgment and exhaustion of direct appeals.”) (citations omitted); Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 748–50 (Tex. 2017) (same).
- 25 -04-22-00675-CV
condominium regime is a unique ownership structure and there are no similarly sized, cold-storage
condominium units in Bexar County. Therefore, any such sales will be rare and may not reflect a
fair market value. See Polk Cnty. v. Tenneco, Inc., 554 S.W.2d 918, 921 (Tex. 1977) (“Segments
of natural gas pipelines . . . are rarely sold; and their market value therefore generally cannot be
determined by comparing the prices brought by sales of similar properties.”); Grand Prairie Indep.
Sch. Dist. v. Missouri Pac. R. Co., 730 S.W.2d 761, 762 (Tex. App.—Dallas 1986, writ ref’d n.r.e.)
(“Although the market value approach has great weight in the appraisal of the typical urban single
dwelling, it is inherently difficult to apply in the valuation of railroad rights of way because they
are rarely sold and, even when sold, are very difficult to compare to one another. The practice of
determining the value of railroad right-of-way through comparable sale has been criticized by the
courts.”) (collecting cases). Accordingly, the trial court could have determined that the sales prices
were of limited value and, as stated in its order on Owners’ motion in limine, “highly prejudicial.”
Further, the Texas Disposal Court did not give a blanket endorsement of relevance to all
fair market value evidence. Instead, it noted that in a taxpayer challenge under section 42.26(a)(3),
the market values of the subject property and comparable properties must have “appropriate
adjustments.”
The Tax Code provides three formulas for use in determining whether an appraisal
is equal and uniform. . . . The third formula compares “the appraised value of the
property” and “the median appraised value of a reasonable number of comparable
properties appropriately adjusted.” Implicit in this third formula are appropriate
adjustments to the market value of comparable properties, in a manner similar to
appropriate adjustments to the market value of the subject property, making their
respective appraised values “comparable properties appropriately adjusted.”
Thus, evidence of the subject property’s fair market value is admissible in either
kind of taxpayer protest to support or challenge the appropriateness of comparable
properties and the adjustments made in determining whether the appraised value is
equal and uniform. Using evidence of appropriately adjusted fair market values,
the District is free to counter the taxpayer’s suggested equal and uniform value of
comparable properties[.]
- 26 -04-22-00675-CV
Tex. Disposal, 694 S.W.3d at 762 (emphasis added). Here, the selective presentation of recent,
unadjusted sales prices—absent sales information for all the comparable properties and
“appropriate adjustments” thereto—falls short of the analysis required for an equal and uniform
valuation under section 42.26(a)(3).
Even if we were to assume that recent sales prices of certain Subject Properties would
amount to relevant fair market value evidence, we find that the exclusion of this evidence was
harmless. As explained in Texas Disposal, “to the extent that the fair market value of the subject
property deviates from its equal and uniform appraised value, the [owner] is entitled to the lower
of the two amounts for calculating the property tax it owes.” Tex. Disposal, 694 S.W.3d at 761.
Continuing, the Court stated that “if the fair market value of the property is higher—as both parties
seem to presume—that value must yield to the lower equal and uniform value as assessed on
comparable properties.” Id., at 761-62.
Here the District asserts that recent sales prices would have supported a fair market value
of over $500,000 for each of the Subject Properties. Assuming a jury agreed to that assessment, or
any fair market value higher than the jury’s median appraised valuation, the fair market value
would be discarded in favor of the lower equal and uniform value determined by the jury. Id., at
761-62. Accordingly, the District cannot demonstrate that the judgment in this case turns on the
excluded evidence, and we cannot find that the exclusion of this evidence probably resulted in an
improper judgment. Therefore, we conclude any error was harmless. U-Haul Intern., 380 S.W.3d
at 132. The District’s fourth issue is overruled.
IV. Challenges to this Court’s precedent in Zapata.
A. Zapata remains the precedent of this Court.
In its fifth issue, the District asserts that this Court’s prior interpretation of section 42.29
of the Texas Tax Code—finding that an award of attorney’s fees is mandatory if the taxpayer
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prevails on an appeal of an excessive appraisal—was in error. See Zapata Cnty. Appraisal Dist. v.
Coastal Oil & Gas Corp., 90 S.W.3d 847, 854 (Tex. App.—San Antonio 2002, pet. denied).
However, we are bound to follow our precedent in Zapata. See Mitschke v. Borromeo, 645 S.W.3d
251, 256 (Tex. 2022) (explaining that under the principle of horizontal stare decisis, “three-judge
panels must follow materially indistinguishable decisions of earlier panels of the same court unless
a higher authority has superseded that prior decision.”). The District’s fifth issue is overruled.
B. Charge Question No.7 was not submitted in error.
In a related challenge, the District asserts the trial court abused its discretion when it
submitted Question 7 to the jury contending that, “[a]s submitted, Question No. 7 misled the Jury
that fees were mandatory and gave them no choice but to write in some number for attorney’s
fees.” However, under Zapata, an award of attorney’s fees is mandatory if the taxpayer prevails
on an appeal of an excessive appraisal. Zapata, 90 S.W.3d at 854. Accordingly, we reject the
District’s argument that Question No. 7 misled the jury.
V. Challenges to the Owners’ evidence of attorney’s fees.
In its sixth issue, the District raises several complaints regarding the attorney’s fees
awarded by the trial court: 1) the evidence was insufficient to support the award of attorney’s fees;
2) Owners had no evidence to support their award of attorney’s fees because they failed to
segregate their fees among the individual Subject Properties or for the three separate years of
valuations at issue; and 3) the trial court abused its discretion when it considered tax rates—
necessary for calculating a cap on any attorney’s fees awards—that Owners failed to present
evidence of at trial. 14
13F
14
The District also challenged the propriety of Charge Question No. 7 in the jury charge as part of its sixth issue. However, we addressed that complaint in the prior section given our reliance on Zapata.
- 28 -04-22-00675-CV
A. Evidence supports the award of attorney’s fees.
First, the District asserts the Owners’ evidence was insufficient to support the award of
attorney’s fees. We disagree.
Legal Standard
Evidence must support any award of attorney’s fees. Diaz v. Diaz, 350 S.W.3d 251, 257
(Tex. App.—San Antonio 2011, pet. denied); see also Stewart Title Guar. Co. v. Sterling, 822
S.W.2d 1, 10 (Tex. 1991) (noting “the trial court may award those fees that are ‘reasonable and
necessary’ for the prosecution of the suit”). “To support an award of reasonable attorney’s fees,
there should be evidence of the time spent by the attorney on the case, the nature of the preparation,
the complexity of the case, the experience of the attorney, and the prevailing hourly rates.” In re
M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.). “However, ‘evidence on each
of these factors is not necessary to determine the amount of an attorney’s fee award.’” Id. (quoting
Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.—Dallas 2005, no pet.). “The court may
also consider the entire record and the common knowledge of the lawyers and judges.” Rust v.
Rust, No. 04-17-00674-CV, 2018 WL 4760157, at *7 (Tex. App.—San Antonio Oct. 3, 2018, no
pet.) (mem. op.).
Analysis
The Owners’ attorney, Lorri Michel, provided sworn testimony that she has practiced in
the area of property tax for thirty-one years, and has handled over 1,000 property tax cases. She
testified that in 2018 she agreed to represent the Owners at a rate of $300 per hour, $100 dollars
an hour below her normal rate at that time and $200 per hour below her normal rate of $500 by the
- 29 -04-22-00675-CV
time this matter reached trial in 2022. 15 Michel testified that $300 per hour is a reasonable hourly
14F
rate for a property tax attorney with her experience. Michel also testified that her associate
attorney, Shane Rogers, has 19 years of experience, and that his rate of $250 per hour is customary
for someone of his experience.
Michel then testified generally about preparing the petition, motion practice, depositions
legal research, brief writing, and hearing appearances that were necessary over the four years that
the underlying matter was pending. She testified that this work was reasonable and necessary for
this property tax case, and that this was one of the most extensive property tax cases she has worked
on. She testified that they kept monthly billing records of their services and presented partially
redacted billing activity records for her firm’s fees as an exhibit and testified that the Owners had
paid the amounts reflected on those records. Finally, she testified that the work her firm performed
was intertwined as it was on behalf of, and for the benefit of, all sixty of the accounts at issue, and
for the three years of valuations being challenged.
After the parties rested, the District raised charge objections regarding the sufficiency of
the evidence of Owners’ attorney’s fees. See In re A.M.W., 313 S.W.3d 887, 893 (Tex. App.—
Dallas 2010, no pet.) (noting that an issue relating to attorney’s fees may be “preserved by
objection during testimony offered in support of attorney’s fees or an objection to the jury question
on attorney’s fees.”). The District asserted that the billing activity records were not invoices and
therefore were not sufficient to demonstrate what fees the Owners paid or incurred. 16 15F
15
Michel also clarified that some of the Owners’ bills reflected her default rate of $400 per hour but that, when she realized the error, she gave the Owners an $8,400 credit to offset the overcharge and thus, the billing records accurately reflect her $300 per hour rate.
16
The District also objected that there was no evidence to support an award of attorney’s fees “because [Owners] did not present evidence of attorney’s fees on a per account/per PID basis.” We will treat this as a separate issue below.
- 30 -04-22-00675-CV
Now, on appeal, the District has expanded its sufficiency challenge in two ways. First, it
asserts that Michel’s testimony was conclusory and too general to support a fees award. Second,
the District contends that the billing activity records are “heavily redacted and constituted no
evidence of attorney’s fees.” We disagree.
The billing activity reports Michel presented support her testimony and provide sufficient
detail for a factfinder to determine the reasonableness of the fees sought. We reject the District’s
position, as presented to the trial court, that the billing activity reports were not sufficient to support
a fees award simply because they were not actual invoices.
I understand that all we were provided were activity runs from a law firm. We were
not provided invoices. What’s on an activity run is not the same thing as what a
client actually paid or was incurred. So we think that that does not support the legal
sufficiency of -- evidence to show a reasonable and necessary fee under Rohrmoos.
In Rohrmoos, the Supreme Court of Texas reiterated that “[c]ontemporaneous billing records are
not required to prove that the requested fees are reasonable.” Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019). And, while that Court stated that “billing
records are strongly encouraged to prove the reasonableness and necessity of requested fees when
those elements are contested,” id., at no point did the Court state or suggest that such records need
be invoices. See, id. (“In El Apple, we acknowledged the value of contemporaneous records for
lodestar calculations . . . ‘that is, contemporaneous billing records or other documentation recorded
reasonably close to the time when the work is performed.’”) (quoting El Apple I, Ltd. v. Olivas,
370 S.W.3d 757, 763 (Tex. 2012)) (emphasis added). A review of those records shows that, despite
the redactions, there is sufficient detail to support Michel’s testimony regarding the reasonableness
of the fees incurred. Additionally, as detailed above, there was direct, uncontroverted testimony
from Michel regarding the amount of attorney’s fees incurred and paid by the Owners.
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Accordingly, we conclude Owners provided the jury with sufficient evidence to support
the attorney’s fees award.
B. The District’s no-evidence challenges based on a purported failure to segregate fees fail.
The District asserts Owners had no evidence to support their award of attorney’s fees
because they failed to segregate their fees among the individual Subject Properties or for the three
separate years of valuations at issue. We disagree.
Legal Standard
A party seeking an award of attorney’s fees must segregate the fees between claims for
which they are recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 311 (Tex. 2006). An exception to this duty to segregate arises when the attorney’s
fees rendered are in connection with claims arising out of the same transaction and are so
interrelated that their “prosecution or defense entails proof or denial of essentially the same facts.”
Id. It is only when legal services advance both recoverable and unrecoverable claims that the
services are so inextricably intertwined that the associated fees need not be segregated. Id. at 313-14. Thus, the general duty to segregate fees applies, unless a party meets its burden of establishing
that the same discrete legal services were rendered with respect to both a recoverable and
unrecoverable claim. Id. at 314; Thomas v. Goodman, No. 04-07-00531-CV, 2008 WL 2602120,
at *4 (Tex. App.—San Antonio July 2, 2008, pet. denied) (mem. op.) “Under Chapa, the
determining factor as to whether fees must be segregated is the type of legal services rendered with
respect to the particular claims, not simply the manner of pleading or the type of claim pled.”
Thomas v. Goodman, 2008 WL 2602120, at *4 (citing Chapa, 212 S.W.3d at 313-14).
Analysis
First, we disagree with the District’s contention that it was necessary for the Owners to
segregate their fees. See Transcor Astra Group S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 482
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(Tex. 2022) (“[T]he duty to segregate between recoverable and nonrecoverable attorney’s fees
does not apply when the services for which the fees are incurred ‘advance both a recoverable and
unrecoverable claim,’ such that the ‘fees are so intertwined that they need not be segregated.’)
(quoting Chapa, 212 S.W.3d at 313-14). As noted above, Michel testified that the work her firm
performed was intertwined as it was on behalf of, and for the benefit of, all sixty of the accounts,
for each of the three tax years at issue. A review of the record gives this Court an understanding
of how the issues raised and litigated in the underlying proceeding were intertwined—with
basically identical Subject Properties, challenging identical appraised valuations, over three
subsequent years—such that the same legal work advanced the Owners’ successful challenges to
the 2019 and 2020 appraised valuations, and the unsuccessful challenges to the 2018 valuations.
For this reason, we conclude the claims are so interrelated that Owners were not required to
segregate their fees.
Second, even if Owners were required to segregate their fees, Abdo—a decision from this
Court that the District points to for support—is clear that the apportioning of fees may be done
through counsel’s testimony. See Abdo, 399 S.W.3d at 255 (“Submitting to the jury an attorney’s
testimony concerning the percentage of hours relating to specific claims is sufficient to satisfy a
party’s burden to segregate its attorney’s fees.”); see also Tony Gullo Motors, 212 S.W.3d at 314
(“[a]n opinion would have sufficed stating that, for example, 95 percent of their drafting time
would have been necessary even if there had been no fraud claim.”). In this case Michel testified
that the matters were intertwined and that her firm’s time was split evenly to address the challenged
appraisals for each of the three tax years, for each of the sixty Subject Properties.
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Q Now, you testified to the jury that the attorney’s fees were intertwined between
all 60 subject properties; is that correct?
A Yes.
Q [Y]our time was evenly split among those 60 subject properties?
A Yes.
Q Ms. Michel, are you telling this jury that your time, your firm’s time spent on this
case was divided equally among the three tax years in litigation?
A Yes.
Accordingly, we reject the District’s arguments that the Owners’ failure to segregate attorney’s
fees resulted in no evidence to support the award of attorney’s fees.
C. The property tax rates were properly before the trial court.
The District asserts the trial court abused its discretion when it considered tax rates—
necessary for calculating a cap on any attorney’s fees awards—that Owners failed to present
evidence of at trial. We disagree.
Under section 42.29, a property owner who prevails in a challenge of an appraised
valuation, is entitled to reasonable attorney’s fees. TEX. TAX CODE § 42.29(a). Any such award,
however, “may not exceed the greater of: (1) $15,000; or (2) 20 percent of the total amount by
which the property owner’s tax liability is reduced as a result of the appeal.” Id. In a successful
challenge to an unequal appraisal under section 42.26(a)(3), the cap under section 42.29(a)(2) is
calculated by subtracting the newly determined median appraised value from the District’s
appraised value, and multiplying the difference by the tax rate published in the District’s notices
and then calculating a twenty percent of that savings or reduced liability. Id.; see also Abdo, 399
S.W.3d at 253 (describing this formula).
It is the trial court’s duty to perform this calculation and then apply the cap if necessary.
See, Abdo, 399 S.W.3d at 254 (“We believe the trial court not only had the authority, but also had
an obligation to calculate the statutory cap on the jury-awarded fee amount.); see also In re
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Columbia Med. Ctr. of Las Colinas, 306 S.W.3d 246, 248 (Tex. 2010) (orig. proceeding) (holding
trial court abused its discretion by not reducing punitive damages award in compliance with
statutory cap); Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009) (remanding cause to the trial
court for it to apply statutory cap to jury’s award). Accordingly, the trial court must have the
applicable tax rates to perform this calculation.
However, we reject the District’s contention that Owners were required to submit these tax
rates for 2019 and 2020 as evidence during the trial. The District has provided no authority, nor
have we found any, to support its contention that Owners were required to submit evidence of the
applicable tax rates prior to the close of trial. Nor do we think that such an approach is warranted
given that the calculations required under § 42.29(a)(2) are for the trial court to make, not the jury.
To this end, a trial court “may, on its own motion, take judicial notice of adjudicative facts that
‘cannot reasonably be questioned.’” City of Leon Valley v. Martinez, No. 04-19-00879-CV, 2020
WL 6748723, at *1 (Tex. App.—San Antonio Nov. 18, 2020, no pet.) (quoting TEX. R. EVID.
201(b), (c)). Additionally, “[t]he court may take judicial notice at any stage of the proceeding.”
TEX. R. EVID. 201(d). Accordingly, we do not find that the trial court erred by applying tax rates
it did not receive from Owners until after the jury reached its verdict.
The District’s sixth issue is overruled.
CONCLUSION
Based on the foregoing reasons, we AFFIRM the trial court’s judgment.
H. Todd McCray, Justice
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