” Id. “The party prevailing in the trial court should be given the option of accepting the remittitur or having the case remanded” for a new trial. Id. ; see also City of Emory v. Lusk, 278 S.W.3d 77, 89 (Tex.App.—Tyler 2009, no pet.) (conditionally affirming damages award after proposing remittitur and allowing appellants to either accept or reject the proposal within 15 days).Analysis
When there is no evidence to support a damages verdict, the court of appeals should render a take nothing judgment as to that amount. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); City of Emory v. Lusk, 278 S.W.3d 77, 88 (Tex. App.-Tyler 2009, no pet.). If part of a damage verdict lacks sufficient evidentiary support, the proper course is to suggest a remittitur of that part of the verdict.
See id. Accordingly, to effect a valid conveyance of joint management community property, Texas law requires both spouses to join in the transaction. See, e.g. , City of Emory v. Lusk , 278 S.W.3d 77, 85 (Tex. App.—Tyler 2009, no pet.) ; see also, e.g. , 38 TEX. PRAC., MARITAL PROPERTY AND HOMESTEADS § 15.13 ("[I]f a spouse does not have a written power of attorney or other agreement, the spouse may not convey or otherwise dispose of joint management community property without the joinder of the other spouse.").
Shiffers v. Est. of Ward, 762 S.W.2d 753, 756 (Tex.App.-Fort Worth 1988, writ denied). Tex. Fam. Code § 5.001; Washington-Jarmon v. OneWest Bank, 513 S.W.3d 103, 110 (Tex. App.-Hous. [14th Dist.] 2016, no pet.); Geldard v. Watson, 214 S.W.3d 202, 207 (Tex. App.-Texarkana 2007, no pet.); City of Emory v. L u s k , 278 S.W.3d 77, 85 (Tex.App.-Tyler 2009, no pet.); Jean v. Tyson-Jean, 118 S.W.3d 1, 5 (Tex.App.-Hous. [14th Dist.] 2003, pet. denied).
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.
"When the appellant is challenging the legal sufficiency of the evidence to support a finding on which it did not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to support the adverse finding." See City of Emory v. Lusk, 278 S.W.3d 77, 86-87 (Tex. App-Tyler 2009, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).
Appellants argue that Kempe's testimony should be excluded from our sufficiency review because it is conclusory and barred by the parol evidence rule. See City of Emory v. Lusk, 278 S.W.3d 77, 89 (Tex. App.—Tyler 2009, no pet.) ("A conclusory and nonprobative opinion is legally insufficient to support a jury verdict."). Evidence is legally conclusory if it does nothing more than state a legal conclusion, and it is factually conclusory if it does not provide the underlying facts to support a conclusion.
The testimony, however, was conclusory. See City of Emory v. Lusk, 278 S.W.3d 77, 89 (Tex. App.—Tyler 2009, no pet.) ("A conclusory and nonprobative opinion is legally insufficient to support a jury verdict"). The only evidence Premier proffered was that Hill said he would terminate the lease and the lease was not terminated.
These actions establish that appellant did not consent to appellee's admitted trespass. SeeMartinez, 977 S.W.2d at 334 (providing that a legal-sufficiency challenge may be sustained if, among other things, the evidence establishes conclusively the opposite of a vital fact); see also City of Emory v. Lusk, 278 S.W.3d 77, 85 (Tex. App.—Tyler 2009, no pet.) ("Consent is an agreement, approval, or permission as to some act or purpose, given voluntarily by a competent person. . . . Consent can be manifested by acts and conduct.
ner Rule to property owners' claims of diminished value to homes and land due to permanent nuisance); Reid Rd. Mun. Util. Dist., 337 S.W.3d at 846 (concluding officer of defendant company's general partner was not qualified to testify to market value of partnership property under Property Owner Rule); Porras, 675 S.W.2d at 503 (applying Property Owner Rule to property owner's testimony regarding valuation of land); DZM, Inc. v. Garren, 467 S.W.3d 700, 705 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (finding property owner's testimony offered under Property Owner Rule regarding fair market value of various items of leased property was insufficient to establish value of items at time of alleged conversion); Smirl v. State, No. 01-12-00989-CV, 2014 WL 2507639, at *4-6 (Tex. App.—Houston [1st Dist.] June 3, 2014, no pet.) (mem. op.) (upholding summary judgment against owner of leasehold because owner's affidavit testimony was insufficient evidence of valuation of leasehold interest); City of Emory v. Lusk, 278 S.W.3d 77, Tex. App.—Tyler 2009, no pet.) (applying Property Owner Rule to easement in inverse condemnation case); Royce Homes v. Humphrey, 244 S.W.3d 570 (Tex. App.—Beaumont 2008, pet. denied) (applying Property Owner Rule to owner's claimed damages to home and land); Lefton v. Griffith, 136 S.W.3d 271 (Tex. App.—San Antonio 2004, no pet.) (applying Property Owner Rule to owner's valuation of store inventory and home). APP did not argue at trial—nor does it assert on appeal—that the "property" about which Mani sought to testify has a market value.