IN THE
TENTH COURT OF APPEALS
No. 10-12-00158-CV
DON C. RUSSELL AND
WYNETTE M. RUSSELL,
Appellants
v.
ROBERT B. COWARD AND
COWARD LAND, L.P.,
Appellees
From the 52nd District Court
Coryell County, Texas
Trial Court No. CAC-09-38903
MEMORANDUM OPINION
Don and Wynette Russell (the Russells) and Robert B. Coward and Coward
Land, LP (Coward) own adjacent property in rural Coryell County. Coward incorrectly
assumed that the fence line was the property line, and when, in April 2007, he lost a
couple of calves, he decided to replace part of the old fence. Without first discussing it
with the Russells, Coward instructed his son to use a bulldozer to take down around
1,100 feet of the fence, along with all of the trees and vegetation along the fence row, so
that they could put up a new fence.
On April 21, 2007, Don Russell discovered that a big section of the fence was
gone and that all the trees that had been there were in six or seven piles on Coward’s
property. A surveyor later determined that the fence line encroached on the Russells’
property a total of 1.71 acres.
The Russells sued Coward, initially asserting claims for trespass and declaratory
judgment as to the boundary line. When Coward pleaded counterclaims for adverse
possession and to quiet title and for trespass to try title, the Russells added a claim for
trespass to try title.
After a bench trial, the trial court rendered judgment that the Russells had a
superior right to title and possession of the 1.71 acres of property and that Coward was
guilty of civil trespass, but that the Russells were not entitled to actual or exemplary
damages. The trial court later made findings of facts and conclusions of law. The
significant findings for this appeal are that Coward’s trespass “caused no damages to
Plaintiffs” and that the “intrinsic dollar value of the vegetation removed by the
Defendants was zero ($0.00).” And based on its conclusion that the suit was properly
characterized as a trespass-to-try-title action, not a declaratory-judgment action, the trial
court found that the Russells were not entitled to recovery of attorney’s fees.
Asserting two general issues, each having numerous sub-issues, the Russells
appeal. The first issue generally complains about the trial court’s failure to award
trespass damages. Specifically, their primary complaints are that they conclusively
Russell v. Coward Page 2
established trespass damages in the amount of $72,971 and that the zero damages
award is against the great weight of the evidence.
We review the trial court’s findings of fact for legal and factual sufficiency of the
evidence by the same standards applied in reviewing the evidence supporting a jury’s
finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When the party that had the
burden of proof at trial complains on appeal of the legal insufficiency of an adverse
finding, that party must demonstrate that the evidence establishes conclusively, i.e., as a
matter of law, all vital facts in support of the finding sought. Dow Chem. Co. v. Francis,
46 S.W.3d 237, 241 (Tex. 2001). In reviewing the jury’s verdict for the legal sufficiency of
the evidence, we consider all of the evidence in the light most favorable to the
prevailing party, “crediting favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” City of Keller v.
Wilson, 168 S.W.3d 802, 808 (Tex. 2005).
“To recover damages for trespass to real property, a plaintiff must prove that (1)
the plaintiff owns or has a lawful right to possess real property, (2) the defendant
entered the plaintiff’s land and the entry was physical, intentional, and voluntary, and
(3) the defendant’s trespass caused injury to the plaintiff.” Wilen v. Falkenstein, 191
S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied). “A person likewise
trespasses when he intentionally causes a third person to enter land in the possession of
another.” Id.
The Texas Supreme Court recently articulated the contours of recoverable
damages for a landowner for the destruction of trees on his property. See Gilbert
Russell v. Coward Page 3
Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., --- S.W.3d ---, 2014 WL 4252273 (Tex.
Aug. 29, 2014). The court first focused “on the significance of classifying injury to real
property as temporary or permanent in the context of properly compensating the
injured landowner.” Id., --- S.W.3d at ---, 2014 WL 4252273, at *3.
[T]he general rule in cases involving injury to real property is that the
proper measure of damages is the cost to restore or replace, plus loss of
use for temporary injury, and loss in fair market value for permanent
injury. However, we apply this rule with some flexibility, considering the
circumstances of each case to ensure that an award of damages neither
over- nor under-compensates a landowner for damage to his property. We
maintain that the purpose of the law “in every case, is to compensate the
owner for the injury received, and the measure of damages which will
accomplish this in a given case ought to be adopted.” Pac. Express Co. v.
Lasker Real-Estate Ass’n, 81 Tex. 81, 16 S.W. 792, 793 (1891). For that
reason, Texas courts have appealed to a number of exceptions to the
general rule when it would compensate a landowner unjustly. Two of
those exceptions are at issue in this case.
In cases involving temporary injury, Texas courts have recognized
the so-called economic feasibility exception to the general rule that the
cost to restore is the proper measure of damages. This exception applies
when the cost of required repairs or restoration exceeds the diminution in
the property’s market value to such a disproportionately high degree that
the repairs are no longer economically feasible. In those circumstances a
temporary injury is deemed permanent, and damages are awarded for
loss in fair market value.
Id., --- S.W.3d at ---, 2014 WL 4252273, at *5.
The court then discussed the intrinsic-value-of-trees exception, which guides our
resolution of this appeal.
In cases involving real property injured by the destruction of trees,
even when the proper measure of damages is the loss in the fair market
value of the property to which the trees were attached, and the value of
the land has not declined, we have held that the injured party may
nevertheless recover for the trees’ intrinsic value. This exception was
created to compensate landowners for the loss of the aesthetic and
Russell v. Coward Page 4
utilitarian value that trees confer on real property. In Porras v. Craig, a
landowner sued his neighbor for cutting down trees on his property, some
as large as four feet in diameter. 675 S.W.2d 503, 504 (Tex. 1984). The
parties agreed that the damage to the land was permanent, and we noted
that the usual measure of damages for permanent injury to real property
is “the difference in the market value of the land immediately before and
immediately after” the injury occurs. Id. However, we observed that
Texas courts of appeals had begun to apply “a conditional measure of
damages, ... contingent on a showing of no reduction in market value,”
which compensated landowners for the intrinsic value of the trees that
were destroyed. Id. at 506. We recognized the exception and remanded
the case for a new trial in the interest of justice. Id.
We recently revisited this exception in Strickland v. Medlen. 397
S.W.3d 184 (Tex. 2013). In that case, we considered whether pet owners
could recover noneconomic damages for the negligent loss of their dog.
Id. at 185. We concluded that they could not, as more than a century of
case law has classified pets as personal property. Id. (citing Heiligmann v.
Rose, 81 Tex. 222, 16 S.W. 931, 932 (1891). Ultimately, we held that the
plaintiffs could recover only the objective, economic value of their pet. Id.
at 198. In arriving at this conclusion, we distinguished Porras. We
explained that Porras presented no obstacle to the result in Strickland
because a tree’s intrinsic value is not “rooted in an owner’s subjective
emotions,” nor does it encompass the tree’s “sentimental value” to its
owner. Id. at 190. Rather, the intrinsic value of a tree lies in “its
ornamental (aesthetic) value and its utility (shade) value.” Id. (citing
Porras, 675 S.W.2d at 506). We also do not rule out other elements of
objective value to the extent an expert lays a proper predicate.
Applying Strickland, we confirm and clarify this exception to the
general rule governing damages for permanent injury to real property.
Specifically, we affirm that when a landowner can show that the
destruction of trees on real property resulted in no diminishment of the
property’s fair market value, or in so little diminishment of that value that
the loss is essentially nominal, the landowner may recover the intrinsic
value of the trees lost; that is, the ornamental and utilitarian value of the
trees.
Id., --- S.W.3d at ---, 2014 WL 4252273, at *6-7.
Hal Dunn, a real-estate broker and certified real-estate appraiser, testified that, in
his opinion, the fair-market value of the Russells’ property had not depreciated by
Russell v. Coward Page 5
Coward’s removal of the Russells’ trees and vegetation along the fence line. Coward
also opined that the tree removal did not change the value of the Russells’ property.
The Russells have not contended that Coward’s removal of the Russells’ trees and
vegetation diminished their property’s value, nor did they present any evidence in that
respect.
The Russells did present expert testimony from Greg David, an arborist, on tree
valuation. David testified that, based on his review of photographs, tree roots, and
resprouting, the trees and vegetation that were bulldozed were escarpment live oak,
cedar elm, cedar, Texas red oak, red bud, Mexican buckeye, and Texas sumac. Using
the cost-to-cure method to calculate the cost of replacing the trees and shrubs, David
testified to a total cost-to-cure amount of $72,971.
In post-submission briefing, Coward correctly notes that, based on Gilbert
Wheeler, the Russells cannot recover restoration damages. See id.
Under these circumstances, when restoration of the land is technically
possible but exceeds the diminution in market value to such a
disproportionately high degree that the repairs are no longer economically
feasible, the injury is deemed permanent. … Because the injury is deemed
permanent, however, the trial court improperly instructed the jury to
calculate damages based on the cost to restore the property.
Id., --- S.W.3d at ---, 2014 WL 4252273, at *8.
Accordingly, we overrule sub-issues 1(b) and 1(d), which assert that the evidence
conclusively established trespass damages in the amount of $72,971. We also overrule
sub-issue 1(f), which asserts that the evidence conclusively established that the intrinsic
value of the trees and shrubs was $72,971; that amount was based only on evidence of
Russell v. Coward Page 6
the restoration cost, which is not recoverable. It was not based on intrinsic-value
evidence.
But under Gilbert Wheeler, plainly the Russells may recover the intrinsic value of
the destroyed trees and vegetation. We next consider the Russells’ “against the great
weight” sub-issues on the trial court’s failure to award any damages for the intrinsic
value of the destroyed trees and vegetation and the trial court’s zero-damages finding
on intrinsic value.
When a party who had the burden of proof complains of the factual
insufficiency of an adverse finding, it must demonstrate that the adverse
finding is contrary to the great weight and preponderance of the evidence.
Dow Chemical, 46 S.W.3d at 242; Cropper v. Caterpillar Tractor Co., 754
S.W.2d 646, 651-53 (Tex. 1988). We weigh all the evidence and set aside
the adverse finding only if it is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Dow
Chemical, 46 S.W.3d at 242.
In doing so, we must detail the evidence and state in what regard
the contrary evidence greatly outweighs the evidence in support of the
adverse finding. Id. We must also remember that it is within the province
of the jury to determine the credibility of the witnesses and the weight to
be given their testimony. Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720,
725-26 (Tex. App.—Waco 1998, pet. denied). The trier of fact may believe
one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d
694, 697 (Tex. 1986). It may resolve inconsistencies in the testimony of a
witness, and it may accept lay testimony over that of experts. Id. We may
not pass upon a witness’s credibility or substitute our judgment for that of
the jury, even if the evidence might clearly support a different result.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citing Pool
v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).
O’Connor v. Wilson, 127 S.W.3d 249, 254 (Tex. App.—Waco 2003, pet. denied).
As the supreme court noted, the intrinsic-value “exception was created to
compensate landowners for the loss of the aesthetic and utilitarian value that trees
Russell v. Coward Page 7
confer on real property.” Gilbert Wheeler, --- S.W.3d at ---, 2014 WL 4252273, at *6. The
court explained that “the intrinsic value of a tree lies in ‘its ornamental (aesthetic) value
and its utility (shade) value,’ ” id., --- S.W.3d at ---, 2014 WL 4252273, at *7 (quoting
Strickland, 397 S.W.3d at 190), and did “not rule out other elements of objective value to
the extent an expert lays a proper predicate.” Id.
There was no testimony that the intrinsic value of the Russells’ destroyed trees
and vegetation was zero or that it lacked any intrinsic value. Coward implicitly admits
that the Russells presented intrinsic-value evidence, but characterizes it as “very little,”
“slight,” and “paltry.” We disagree with those characterizations.
Don Russell testified that some of the destroyed trees “could easily be a hundred
years old.” He said that because of how the trees had grown up in the fence, they had
become “like a hedgerow in Germany.” According to Coward’s journal, the height of
the cedars was approximately twenty feet. Don Russell testified that the “hedgerow”
served several purposes, such as serving as a barrier to windborne thistle seeds from
Coward’s land; he presented a photograph of a patch of thistle now on his land,
described them as “noxious,” and said that cattle cannot eat them or graze around
them. He also said that the hedgerow provided some protection from deer hunters on
Coward’s land.
In addition to testifying about the various types of trees, David, the arborist,
testified that the function of the trees was as a buffer or screen between the two
properties. He said that they also were a wildlife habitat and were “an attractive
growth of trees along the roadway and along that fence.” Coward testified that Don
Russell v. Coward Page 8
Russell’s first comment to him was that he had destroyed all of the Russells’ “beautiful
trees.” And the Russells point out that Coward’s expert Dunn, a real-estate broker and
certified real-estate appraiser, testified that “there’s a good tree canopy that still
remains,” which the Russells assert is an implicit acknowledgment that the destroyed
tree canopy on the other side of the road was also good. The Russells also point to
David’s report, which contains a 2005 aerial photograph depicting the tree canopy that
Coward bulldozed.
“Courts have gone to great lengths to hold trespassers liable for the
consequences of their acts.” Wilen, 191 S.W.3d at 799 (citing Rochelle v. Carr, 418 S.W.2d
710, 712 (Tex. Civ. App.—San Antonio 1967, no writ)). In Wilen, a trespass case, the
court affirmed a jury award of $5,300 in actual damages for the intrinsic value of one
tree. Id. In doing so, the court noted damage awards for the intrinsic value of trees in
other cases: Lamar County Elec. Coop. Ass’n v. Bryant, 770 S.W.2d 921, 922-23 (Tex.
App.—Texarkana 1989, no writ) (upholding jury’s finding of intrinsic value and award
of $2,500.00 in actual damages), overruled on other grounds by Gilbert Wheeler, --- S.W.3d at
---, 2014 WL 4252273, at *9; Garey Constr. Co. v. Thompson, 697 S.W.2d 865, 867 (Tex.
App.—Austin 1985, no writ) (upholding $1,500.00 actual damage award for intrinsic
value of several shrubs and twelve-inch tree damaged by trespass), overruled on other
grounds by Gilbert Wheeler, --- S.W.3d at ---, 2014 WL 4252273, at *9.
The factfinder has discretion to award damages within the range of evidence,
so long as a rational basis exists for its calculation. Examination Management Servs., Inc.
v. Kersh Risk Management, Inc., 367 S.W.3d 835, 844 (Tex. App.—Dallas 2012, no pet.);
Russell v. Coward Page 9
Shearer’s Inc. v. Lyall, 717 S.W.2d 128, 130 (Tex. App.—Houston [14th Dist.] 1986, no
writ). “The trier of fact may not, however, ignore the uncontroverted facts and
arbitrarily fix an amount neither authorized nor supported by the evidence.” Lyall, 717
S.W.2d at 130.
Here, the uncontroverted facts show that Coward bulldozed an approximately
1,100-foot “hedgerow” of trees and vegetation. David’s report, which contains the 2005
aerial photograph, also has a 2008 aerial photograph, and they demonstrate a before-
and-after depiction of the amount of trees and vegetation that were bulldozed. The
Russells also presented photographs of the various piles of the bulldozed trees and
vegetation.
Despite trying the case primarily to recover restoration costs based on their
expert’s cost-to-cure evidence, the Russells still adduced the not insignificant intrinsic-
value evidence detailed above, and there is no controverting evidence that supports the
trial court’s zero damages finding on intrinsic value. In light of the entire record, we
agree with the Russells that the trial court’s finding of zero damages for intrinsic value is
against the great weight and preponderance of the evidence. Accordingly, we sustain
sub-issues 1(c), 1(e), and 1(g). Given this ruling, we need not address sub-issues 1(a)
and 1(h).
Having sustained sub-issues 1(c), 1(e), and 1(g) on the trial court’s zero damages
finding on intrinsic value, we reverse the trial court’s judgment and remand this case
for a new trial. Because of our remand, we need not address the second issue on
attorney’s fees.
Russell v. Coward Page 10
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed October 9, 2014
[CV06]
Russell v. Coward Page 11