Affirmed and Memorandum Opinion filed June 30, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00543-CV

DUKE REALTY LIMITED PARTNERSHIP AND HUFFMEISTER 

DEVELOPMENT, LLC, Appellants

V.

HARRIS COUNTY APPRAISAL DISTRICT, Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2013-58098

M E M O R A N D U M O P I N I O N

This case involves a battle of the experts over the property tax valuation of

commercial property. Appellants Duke Limited Partnership and Huffmeister 

Development, LLC challenge the trial court’s judgment in favor of appellee Harris 

County Appraisal District. We affirm.
2

Background

The subject property is approximately 62 acres located near a major 

intersection in Harris County, Texas. In May 2013, Duke purchased approximately 

60 acres of the property, and Huffmeister purchased approximately 1.5 acres. The 

total sales price was approximately $14,000,000. Duke and Huffmeister protested 

the District’s appraised values on the property for the tax years 2013 and 2014. The 

Harris County Appraisal Review Board made final valuation determinations of

$8,925,700 for 2013 and $13,779,192 for 2014.1

Duke and Huffmeister filed suit against the District seeking judicial review 

of the Appraisal Review Board’s determinations of value, arguing that the subject 

property was unequally appraised. During a bench trial, each side presented expert

testimony. Duke and Huffmeister’s expert, Delbert Kendall, valued the property at

$4,788,532 in 2013 and $4,005,825 in 2014, while the District’s expert, Wesley 

Ballou, valued the property at $12,321,769 in 2013 and $12,731,161 in 2014. The 

trial court rendered a take-nothing judgment against Duke and Huffmeister and 

entered findings of fact and conclusions of law.

Discussion

Duke and Huffmeister present three issues challenging the sufficiency of the 

evidence in support of the trial court’s findings.

2 Concluding that Duke and 

 

1

The District had appraised the property at $12,223,372 for 2013, which the Review 

Board reduced. The Review Board did not reduce the District’s appraised valuation for 2014.

2

In their first issue, involving “relief from unequal appraisal,” Duke and Huffmeister do 

not point out any error allegedly committed by the trial court. However, they assert that the 

evidence presented by their expert “conclusively establish[es] that the [p]roperty’s appraised 

values for 2013 and 2014 are unequal.” This reflects the standard of review for legal sufficiency 

challenges, discussed below. In their second issue, Duke and Huffmeister contend that the trial 

court’s findings of fact are mislabeled conclusions of law that we should review de novo. They 

do not articulate why we should treat the findings as conclusions or how doing so would change 

the outcome. Whether these statements are findings or conclusions does not change our review 
3

Huffmeister failed to demonstrate that the evidence conclusively establishes that 

the subject property was unequally appraised in 2013 and 2014, we affirm.3

In a nonjury trial, findings of fact have the same force and dignity as a jury’s 

verdict. Green v. Alford, 274 S.W.3d 5, 23 (Tex. App.—Houston [14th Dist.] 2008, 

pet. denied). When a complete reporter’s record is filed, as here, we may review 

the trial court’s findings of fact for legal and factual sufficiency under the same 

standards we apply to jury verdicts.4See id.

Waiver of Factual Sufficiency Challenge. The District argues that Duke 

and Huffmeister have raised only a legal sufficiency challenge and not a factual 

sufficiency challenge. We agree. 

Duke and Huffmeister refer to “factual sufficiency” only in the heading of 

their third issue.5They do not articulate the standard of review for a factual 

sufficiency challenge, cite any authority in support of an argument that the 

evidence is factually insufficient to support the trial court’s judgment, or provide 

any analysis in support of such an argument. They argue only that there is “no 

evidence” to support the trial court’s findings and that they have conclusively 

established their entitlement to relief. These statements reflect the standard of 

review for legal sufficiency challenges. See First Transit, Inc. v. Alfaro, No. 14-14-

00063-CV, 2015 WL 1623064, at *3 (Tex. App.—Houston [14th Dist.] Apr. 7, 

2015, pet. denied) (mem. op.) (noting that “[a] legal sufficiency or ‘no evidence’ 

 

of the sufficiency of the evidence.

3 Duke and Huffmeister’s fourth issue, in which they seek attorney’s fees, expenses, and 

costs, is contingent on our sustaining the sufficiency challenge. Because we do not, we do not 

reach the fourth issue.

4 As discussed below, Duke and Huffmeister have waived their factual sufficiency 

challenge.

5

The heading reads: “If Findings of Fact 1–9 are considered factual findings, they are not 

legally or factually sufficient to support the judgment.”
4

challenge will be sustained” when, among other things, there is a complete absence 

of a vital fact or the evidence conclusively establishes the opposite of a vital fact). 

Failure to cite legal authority or to provide substantive analysis of the legal 

issues presented results in waiver of the complaint. Canton-Carter v. Baylor Coll. 

of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

(citing Tex. R. App. P. 38.1(i)). Because Duke and Huffmeister did not provide 

any discussion of the appropriate standard of review for factual sufficiency 

challenges, any citation of appropriate legal authority, or any analysis applying the 

appropriate legal authority to the facts, they have waived their factual sufficiency 

challenge to the trial court’s findings. See id. We address only whether the findings 

are supported by legally sufficient evidence.

Deference to Factfinder’s Resolution of Conflicting Evidence. Relying on 

article VIII, section 1 of the Texas Constitution and Tax Code section 42.26(a)(3), 

Duke and Huffmeister argue that the subject property was unequally appraised in 

2013 and 2014.6 Because Duke and Huffmeister attack the legal sufficiency of 

adverse findings on which they had the burden of proof, they must demonstrate 

that the evidence conclusively establishes all vital facts in support of the issue. See 

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); see also 

WCW Int’l, Inc. v. Broussard, No. 14-12-00940-CV, 2014 WL 2700892, at *3 

(Tex. App.—Houston [14th Dist.] June 3, 2014, pet. denied) (substitute mem. op.). 

We indulge every reasonable presumption in favor of the findings and judgment of 

the trial court. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. 

App.—Houston [14th Dist.] 1999, pet. denied). We credit favorable evidence if 

 

6 Duke and Huffmeister argue that only certain findings relate to Tax Code section 

46.26(a)(3), “the sole basis for [their] claimed relief in this case.” Because we conclude that 

legally sufficient evidence supports the trial court’s finding that Duke and Huffmeister adduced 

insufficient evidence to show “any median appraised value for tax years 2013 and 2014,” we 

need not address the trial court’s other findings. 
5

reasonable factfinders could, and disregard contrary evidence unless reasonable 

factfinders could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

“The final test for legal sufficiency must always be whether the evidence at trial 

would enable reasonable and fair-minded people to reach the verdict under 

review.” Id. Because this court is not a factfinder, we may not pass upon the 

witnesses’ credibility or substitute our own judgment for that of the factfinder, 

even if the evidence would clearly support a different result. Mar. Overseas Corp. 

v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). We will not disturb the trial court’s 

findings if there is evidence of probative force to support them. Kazmir v. 

Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 

The Texas Constitution provides in relevant part that “[t]axation shall be 

equal and uniform” and “real property . . . shall be taxed in proportion to its value, 

which shall be ascertained as may be provided by law.” Tex. Const. art. VIII, 

§ 1(a)-(b). The portion of the Tax Code upon which Duke and Huffmeister rely

reads as follows: “The district court shall grant relief on the ground that a property 

is appraised unequally if . . . 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). Determining whether the 

appraised value of property “exceeds the median appraised value of a reasonable 

number of comparable properties appropriately adjusted” requires only a 

comparison of the appraised value of the property at issue with the median 

appraised value of “comparable properties adequately adjusted.” Harris Cnty. 

Appraisal Dist. v. United Inv’rs Realty Trust, 47 S.W.3d 648, 653 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied) (construing former section 42.26(d) 

(current version at section 42.26(a)(3)). The appraisal expert identifies a reasonable 

number of comparable properties and then takes the appraised value of those 

properties from the public record and appropriately adjusts them to the subject 
6

property. In re MHCB (USA) Leasing & Fin. Corp., No. 01–06–00075–CV, 2006 

WL 1098922, at *3 (Tex. App.—Houston [1st Dist.] Apr. 27, 2006, orig. 

proceeding) (mem. op.). The comparable properties are adjusted according to 

factors that tend to influence value, such as location, age, depreciation, physical 

characteristics of the property, and “economic factors.” Harris Cnty. Appraisal 

Dist. v. Houston 8th Wonder Prop., L.P., 395 S.W.3d 245, 254-55 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied); United Inv’rs Realty Trust, 47 S.W.3d at

650 n.4. Finally, the appropriately adjusted comparable properties are arrayed, and 

a median is determined. Houston 8th Wonder Prop., 395 S.W.3d at 254-55.

The parties dispute what types of comparable properties should have been 

used to determine whether the subject property was appraised unequally. Duke and 

Huffmeister’s expert, Kendall, used comparable properties similar in size to the 

subject property located near or adjacent to major highways and freeways in the 

northwest quadrant of Harris County. The District’s expert, Ballou, used 

comparable properties in the immediate geographical area of the subject property. 

The trial court found that Duke and Huffmeister did not adduce sufficient, credible 

or relevant evidence relating to any median appraised value for tax years 2013 and 

2014. Duke and Huffmeister argue that, because Kendall’s methodology complied 

with the Tax Code, they conclusively established the subject property was 

unequally appraised.

The trial court, as factfinder, was entitled to make credibility determinations 

and weigh the competing expert testimony and the variables and assumptions upon 

which that testimony was based. See Hedgepeth v. Diamond Offshore Drilling, 

Inc., No. 01-12-01156-CV, 2013 WL 6097798, at *5 (Tex. App.—Houston [1st 

Dist.] Nov. 19, 2013, no pet.) (mem. op.). In so doing, the trial court was entitled to

“disregard even uncontradicted and unimpeached testimony from disinterested 
7

witnesses,” so long as the decision to disregard was reasonable. City of Keller, 168 

S.W.3d at 820. Accordingly, the trial court was entitled to believe the testimony of 

one expert and disbelieve the testimony of the other and to resolve any 

inconsistencies in their testimony. Key Operating & Equip., Inc. v. Hegar, 403 

S.W.3d 318, 336 (Tex. App.—Houston [1st Dist.] 2013), rev’d on other grounds, 

435 S.W.3d 794 (Tex. 2014). The trial court chose to credit Ballou’s testimony 

over the contradictory testimony of Kendall. We must defer to the trial court’s 

resolution of this issue, unless we conclude that its decision to disregard Kendall’s 

testimony was unreasonable. See id.; see also City of Keller, 168 S.W.3d at 820.

Kendall identified eleven comparable properties for 2013 and nine for 2014. 

Kendall did not restrict his search for comparable properties to properties within 

the same area as the subject property, but he did limit his search to properties with 

the same land-use code for commercial vacant property.

7 He also chose properties 

that he deemed to have “similar characteristics” to the subject property. He 

testified that size is more important than location when selecting comparable 

properties because properties of similar size would have similar uses. Larger 

properties, such as the subject piece of undeveloped property, would have “a 

longer extended development period” than smaller properties. 

Kendall made adjustments to the selected comparable properties’ appraised 

values according to their size, location, plottage, and utilities. Kendall assigned 

categories to the comparable properties as “inferior,” “slightly inferior,” “very 

inferior,” “similar,” or “slightly superior.” Percentage adjustments ranged from 

minus 20 percent up to 100 percent. Kendall took the adjusted appraised values of 

the comparable properties and divided them by square footage to obtain a value per 

square foot of each comparable property. Based on these numbers, he opined that 

 

7

The District classifies types of property by land-use codes.
8

the equal and uniform value of the subject property was $4,788,532 for 2013 and 

$4,005,825 for 2014.

Ballou testified that location was a more appropriate factor than size to 

choose comparable properties under the circumstances of this case. He analyzed 

comparable properties in the same area of the subject property and adjusted their 

values by taking into consideration any restrictions or enhancements that would 

affect their value. He adjusted for size to get a dollar per square foot calculation. 

Applying the median valued per square foot to the square footage of the subject 

property, Ballou opined that the equal and uniform value of the subject property 

was $12,321,769 for 2013 and $12,731,161 for 2014.

Duke and Huffmeister have not challenged the reliability of Ballou’s expert 

testimony under Texas Rule of Evidence 702 on appeal and apparently did not do 

so below.8They argue that “Ballou’s testimony plainly demonstrates that he failed 

to follow generally accepted appraisal principles in performing his analysis.” 

However, they provide no record citations or citations to authority to support this 

argument and thus have waived their complaint on appeal. See Canton-Carter, 271 

S.W.3d at 931. They cite Ballou’s testimony, but they do not demonstrate how 

such testimony shows that Ballou failed to follow “generally accepted appraisal 

principles” other than to complain generally that Ballou did not make certain 

adjustments to the comparable properties.9

 

8 Under Rule 702, expert testimony must be relevant and reliable. Tex. R. Evid. 702; see 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). To preserve error 

on a complaint that expert testimony is not reliable, the proponent must object to expert 

testimony before trial or when evidence is offered and obtain a ruling. GTE Mobilnet of S. Tex. 

Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 613 (Tex. App.—Houston [14th Dist.] 2001, pet. 

denied). 

9 Duke and Huffmeister also argue for the first time in their reply brief that the District 

cannot seek a judgment based on a higher appraised value than that raised in their pleadings. It is 

well settled under Rule of Appellate Procedure 38.3 that an appellant cannot raise a new issue in 
9

Although Duke and Huffmeister presented evidence that conflicted with the 

District’s, the factfinder’s resolution of conflicting evidence is generally regarded 

as conclusive. See Morton Int’l v. Gillespie, 39 S.W.3d 651, 657 (Tex. App.—

Texarkana 2001, pet. denied). Based on the above evidence, we cannot conclude 

that the trial court’s decision to credit Ballou’s testimony over the contradictory 

testimony of Kendall was unreasonable. See City of Keller, 168 S.W.3d at 820. 

Reviewing the evidence in the light most favorable to the challenged finding and 

indulging every reasonable inference that would support it, we conclude the trial

court reasonably could find that Duke and Huffmeister did not establish that the 

subject property was unequally appraised in 2013 and 2014. We overrule Duke and 

Huffmeister’s legal sufficiency challenge.

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, Donovan, and Brown.

 

a reply brief in response to a matter pointed out in the appellee’s brief. State Farm Lloyds v. 

Fuentes, No. 14-14-00824-CV, 2016 WL 1389831, at *5 (Tex. App.—Houston [14th Dist.] Apr. 

7, 2016, no. pet. h.) (mem. op.); see Tex. R. App. P. 38.1(f) (requiring appellant’s brief to state 

“all issues or points presented for review”), 38.3). Moreover, the trial court’s judgment merely 

reflects a take-nothing judgment against Duke and Huffmeister. It does not reflect an appraised 

value.