Opinion filed January 29, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-13-00002-CV
                                     __________

                    ESTANISLAO ORTEGA, Appellant
                                        V.
                   DONALD GENE CHESHIER
             AND CHERYL DIANE CHESHIER, Appellees


                    On Appeal from the County Court at Law
                              Erath County, Texas
                        Trial Court Cause No. CV07631


                      MEMORANDUM OPINION
      This appeal arises out of a dispute between Estanislao Ortega and his
neighbors, Donald Gene Cheshier and Cheryl Diane Cheshier, that occurred when
Ortega trespassed onto the Cheshiers’ land, took down the Cheshiers’ fence, cut
down more than two dozen of their large trees, disrupted the soil and terrain on
their land, and also left large tree stumps and wood piles on the property. The
Cheshiers sued Ortega for trespass and sought damages for the destruction of their
trees and the conversion of their timber. The trial court, after a bench trial,
awarded $45,000 in damages to the Cheshiers. Ortega asserts three issues on
appeal. We affirm.
                               I. Background Facts
      The Cheshiers paid approximately $70,000 for approximately 36.78 acres of
land in Erath County, and their property shared a boundary with Ortega’s property.
Ortega directed workers to cut down trees on Ortega’s side of the property line,
tear down his existing fence that was not on the boundary line, and build a new
fence on the boundary line so that Ortega could keep cattle on his land. Ortega’s
workers cut down the trees on Ortega’s side of the fence and tore down his existing
fence, but they also tore down the Cheshiers’ fence and proceeded to cut down
approximately twenty-one to thirty large trees on the Cheshiers’ property and four
or five additional trees on the boundary line. Ortega did not have the Cheshiers’
permission to tear down their fence or cut down their trees. The damaged area
measured approximately 16 feet wide by 800 feet long. Ortega conceded that his
workers had trespassed on the Cheshiers’ property and had caused the damage to
their property.
      Brad Greenway, who lived on the Cheshiers’ property, saw Ortega’s
workers and stopped them before they removed the stumps and leveled the ground.
Greenway notified the parties of what Ortega’s workers had done. Ortega admitted
that his workers had trespassed and cut down the wrong trees. This suit followed.
The parties stipulated that the “total appraised value” of the Cheshiers’ property
remained unchanged after the action of Ortega and his workers.
                               II. Issues Presented
      Ortega asserts three issues on appeal. In his first issue, Ortega claims that
the trial court improperly used “damages to trees” as the measure of damages

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instead of “damage to the land occasioned by the loss of the intrinsic value of trees
removed.” Ortega challenges, in his second and third issues, the legal and factual
sufficiency of the evidence.    Ortega concedes in his brief that the Cheshiers
suffered damages, but he contends that no evidence or insufficient evidence was
adduced to support the damages awarded by the trial court. Ortega also asserts
three sub-issues in his third issue, namely that the trial court erred by (1)
considering Greenway’s opinion of the intrinsic value of the destroyed trees,
(2) failing to apportion the total damage award among the components of the
award, and (3) not considering the Cheshiers’ failure to mitigate damages.
                              III. Standards of Review
      We review a legal sufficiency challenge to the evidence in a light that tends
to support the disputed finding and disregard all evidence and inferences to the
contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We “assess all the
evidence in the light most favorable to the prevailing party, indulging every
reasonable inference in favor of the judgment.” City of Austin Police Dep’t v.
Brown, 96 S.W.3d 588, 593 (Tex. App.—Austin 2002, pet. dism’d) (citing
Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.
1998)). A no-evidence challenge fails if more than a scintilla of evidence supports
the challenged finding. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735,
739 (Tex. 2003); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999).
      We review a factual sufficiency challenge by examining all of the evidence
in the record, both for and against the lower court’s findings. Ortiz v. Jones, 917
S.W.2d 770, 772 (Tex. 1996). We must consider and weigh all such evidence in a
neutral light. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). But “[factfinders] are the sole judges of the credibility of the witnesses and
the weight to give their testimony.” City of Keller v. Wilson, 168 S.W.3d 802, 819
(Tex. 2005). We review a challenge of excessive damages under the same factual

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sufficiency standard. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406
(Tex. 1998).
      We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Interstate Northborough P’ship v. State, 66 S.W.3d
213, 220 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We
do not reverse a trial court’s abuse of discretion in the absence of harm. See Lone
Star Gas Co. v. Lemond, 897 S.W.2d 755, 756 (Tex. 1995). Harm occurs if the
error probably resulted in an improper judgment. TEX. R. APP. P. 44.1(a); Wal-
Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003). We review the
entire record to determine whether an error has resulted in harm.           Interstate
Northborough P’ship, 66 S.W.3d at 220.
                                     IV. Analysis
      A. Issue One: Measure of Damages for Temporary or Permanent Injury
      A landowner whose land is temporarily injured by the wrongful act of
another is entitled to damages in the amount necessary to restore the property to its
pre-injury condition. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P.,
No. 13-0234, 2014 WL 4252273, at *3 (Tex. Aug. 29, 2014) (citing Trinity & S.
Ry. Co. v. Schofield, 10 S.W. 575, 576–77 (Tex. 1889)). If the injury is permanent,
however, the landowner is entitled to the “difference between the value of the land
immediately before the injury and its value immediately after,” not the cost to
restore the land. Id. at *3, *8 (quoting Fort Worth & D. C. Ry. Co. v. Hogsett, 4
S.W. 365, 366 (Tex. 1887)) (holding that trial court improperly instructed jury to
calculate award for permanent damages based on cost to restore property). A
“temporary injury is deemed permanent” if the cost to restore the property



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“exceeds the diminution in the property’s market value to such a disproportionately
high degree that the repairs are no longer economically feasible.” Id. at *5.
      When the destruction of trees causes the injury but causes no diminution or
“essentially nominal” diminution in the fair market value of the property, the
injured party may recover the “intrinsic value” of the trees lost. Id. at *7. The trial
court, in its final conclusion of law, included damages for “trespass” and “damage
to trees.” The evidence at trial demonstrated a permanent injury because there was
no difference in the value of the Cheshiers’ property before and after the trees were
cut down. See Gilbert Wheeler, 2014 WL 4252273, at *5. In addition, because the
loss of the large native oak and other trees did not result in a diminution of value to
the property, the Cheshiers could only recover for the loss of the intrinsic value of
their trees. See id.
      While the trial court’s use of the words “damage to trees” could have been
more precise, those words in combination with a finding of fact that the injury was
one that significantly affected the Cheshiers’ view of their property and their
privacy, but did not result in a change in the appraised value of the property, is
consistent with a description of permanent injury for which the Cheshiers could
recover for the loss of the intrinsic value of their trees. See id. Therefore, we
overrule Ortega’s first issue as it pertains to the nomenclature used by the trial
court to describe the permanent injury that was sustained by the Cheshiers. We
now turn to whether the evidence adduced at trial was legally and factually
sufficient to support the judgment of the trial court.
      B. Issues 2 and 3: Legal and Factual Sufficiency of the Evidence
      The no-evidence legal sufficiency challenge fails if more than a scintilla of
evidence supports the challenged finding. See Canchola, 121 S.W.3d at 739; Gen.
Motors, 997 S.W.2d at 588. We may only sustain a legal sufficiency challenge
when (1) the record discloses a complete absence of a vital fact, (2) the court is

                                           5
barred by rules of law or evidence from giving weight to the sole evidence offered
to prove a vital fact, (3) the sole evidence offered to prove a vital fact is no more
than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a
vital fact. City of Keller, 168 S.W.3d at 810 (citing Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–
63 (1960)).
      In a factual sufficiency challenge, we view and weigh all evidence in a
neutral light, and if the evidence would enable reasonable minds to differ in their
conclusions, we do not substitute our judgment, so long as the evidence falls within
a zone of reasonable disagreement.       City of Keller, 168 S.W.3d at 822.       In
considering and weighing all of the evidence, we will only set aside the judgment
if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
      On the permanent injury damages issue, the Texas Supreme Court has
explained that the intrinsic value of trees “is not rooted in an owner’s subjective
emotions” or measured by “sentimental considerations.” Strickland v. Medlen, 397
S.W.3d 184, 190 (Tex. 2013). Rather, the intrinsic value of trees lies in “elements
of objective value.” Gilbert Wheeler, 2014 WL 4252273, at *7 (citing Strickland,
397 S.W.3d at 190) (explaining that the ornamental and utilitarian value of trees,
along with “other elements of objective value to the extent an expert lays a proper
predicate,” make up intrinsic value of trees); see, e.g., Lamar Cnty. Elec. Coop.
Ass’n v. Bryant, 770 S.W.2d 921, 923 (Tex. App.—Texarkana 1989, no writ)
(holding that use for barrier and shade, and availability for sale in local nursery,
supported finding of intrinsic value of trees), overruled on other grounds by
Gilbert Wheeler, 2014 WL 4252273, at *9; Shearer’s Inc. v. Lyall, 717 S.W.2d
128, 130 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that
ornamental or shade use authorized award of damages for intrinsic value of trees);

                                         6
Garey Constr. Co. v. Thompson, 697 S.W.2d 865, 867 (Tex. App.—Austin 1985,
no writ) (holding that ornamental or aesthetic purpose supported award for intrinsic
value of trees), overruled on other grounds by Gilbert Wheeler, 2014 WL
4252273, at *9.
       The owner of the trees may testify as to their intrinsic value, but the
factfinder determines the dollar amount to award.                    See Porras v. Craig, 675
S.W.2d 503, 506 (Tex. 1984) (remanding so that owner could establish diminution
of market value of land or, if none, intrinsic value of trees); Garey Constr., 697
S.W.2d at 867 (holding that evidence of dollar value “is not required in a case
involving loss of intrinsic value of property”); Lucas v. Morrison, 286 S.W.2d 190,
191 (Tex. Civ. App.—San Antonio 1956, no writ) (explaining that the jury could
“estimate” the intrinsic value of the tree “as well as” the landowner could and that
landowner did not need to testify as to the intrinsic value “in dollars and cents”).
The factfinder, however, may not “ignore the uncontroverted facts and arbitrarily
fix an amount neither authorized nor supported by the evidence.” Boyer, Inc. v.
Texan Land & Cattle Co., No. 14-00-00069-CV, 2001 WL 1590477, at *4 (Tex.
App.—Houston [14th Dist.] Dec. 13, 2001, no pet.) (not designated for
publication) (citing Shearer’s Inc., 717 S.W.2d at 130).
       Ortega challenges the damages awarded by the trial court and asserts that no
evidence or insufficient evidence existed to support the award. Donald Cheshier
(Cheshier) 1 testified that he spoke to people in the community and gathered
information from them on stump removal and levelling the terrain. Cheshier
testified that the cost to remove the stumps and to level the terrain would total
$6,500. Cheshier testified that, without the trees, he had no seclusion or privacy
from his neighbors and that the beauty previously provided by the destroyed trees

       1
        Donald Cheshier was present at trial, but he explained that his wife was absent because she was
working onsite at a disaster relief area.


                                                  7
was “completely gone.” Cheshier also testified that the trees had provided shade
and a windbreak for his horses, beauty, and privacy. Ortega elicited testimony
from Cheshier that the trees would block easterly cold winds but not northerly cold
winds. Ortega also elicited testimony from Cheshier that there was nothing to
indicate that the Cheshiers’ horses had used the trees for shade.
      Cheshier submitted photographs of the destroyed trees, which showed their
trunk size; he also submitted an aerial photograph of the pre-injury tree line, which
showed the trees’ canopies. Cheshier testified that he asked Ortega to pay $53,000
for the damages that Ortega did to the property. Cheshier also thought, in part
based on the arborist’s report, that his lost and destroyed trees had an intrinsic
value of $150,000.
      Gregory Paul David, a certified arborist, testified to the value of the
destroyed trees and said that he used two methodologies to determine a component
of intrinsic value: “depreciated replacement cost” and “cost of cure.”            The
depreciated-replacement-cost methodology was used to calculate the cost to
“install or replace a tree, less depreciation on adjustments for . . . any undesirable
specie characteristics for the original tree.” The damages computed under this
methodology totaled $185,954.62. The cost-of-cure methodology was used to
calculate the cost “to go back in with smaller trees and reforest the area so that
eventually the landowner would enjoy the benefits that they lost.” The damages
computed using this methodology totaled $50,438.50.
      David testified that, based on the evidence he had, which included the aerial
photograph, the canopies of the destroyed trees were “excellent” and “wonderful.”
He stated in his report that the destroyed trees provided “shade, natural beauty,
wildlife habitat, and a visual screen and buffer zone between properties.” He also
wrote in his report that he inspected each destroyed tree, compared each to a “high-
quality nursery-grown tree,” and subsequently assigned each tree a condition

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rating. He explained that “a 100-percent tree would be defect free and be similar
to [a] high quality nursery tree.” The health and condition of the thirty-three
inspected trees ranged from ten to sixty percent with an average of about fifty-two
percent. In addition, a tree that split the boundary line, half on the Cheshiers’
property and half on Ortega’s property, was assigned a fifty percent loss.
      David testified that his calculations were “depreciated replacement cost” and
“cost to cure,” which he said were components of intrinsic value but also were
costs to restore the property. Those estimates exceeded the diminution of the fair
market value of the Cheshiers’ land, which was zero dollars; therefore, the
destruction of the Cheshiers’ trees was a permanent injury. See Gilbert Wheeler,
2014 WL 4252273, at *5. And, with a permanent injury, the Cheshiers are entitled
to recover the diminution in the value of their property, unless the diminution in
the land’s value was zero or nominal. See id. at *5, *8. Because that was the case
here, the Cheshiers may recover, as an alternate measure of damages, the intrinsic
value of their destroyed trees. See id. at *6–7.
      The evidence of “objective value” included Cheshier’s testimony of the
privacy and seclusion that the trees provided, their beauty, and also the shade and
windbreak they could provide for his horses, even if no evidence existed that the
horses had used them for that purpose; the arborist’s testimony that the canopy of
the trees was “excellent” and “wonderful”; and the report that the condition ratings
of the trees averaged about half of what one could find in a nursery. See id. at *7;
Lamar Cnty. Elec., 770 S.W.2d at 923; Shearer’s Inc., 717 S.W.2d at 130; Garey
Constr., 697 S.W.2d at 867.
      The trial court, as factfinder, was responsible for awarding a dollar amount
for the intrinsic value of the trees. See Garey Constr., 697 S.W.2d at 867; Lucas,
286 S.W.2d at 191. We cannot say that the evidence presented by the Cheshiers,
and the award determined by the trial court, was contrary to the overwhelming

                                          9
weight of the evidence so as to be clearly wrong and unjust. See Cain, 709 S.W.2d
at 176. We hold that Cheshier’s testimony of the aesthetic and utilitarian uses of
the trees, along with David’s testimony of the canopies and report of the condition
ratings, constituted sufficient evidence to support the trial court’s award of
damages. See Gilbert Wheeler, 2014 WL 4252273, at *6.
      C. Issue on Admissibility of evidence
      Ortega complains that Greenway, not being the owner of the property, could
not testify to the intrinsic value of the trees. When the Cheshiers asked Greenway
his opinion of the value of the property, Ortega objected, and the trial court
sustained that objection. Greenway was subsequently permitted, over Ortega’s
objections, to give his lay opinion that the intrinsic value of the destroyed trees was
$50,000. Even if the trial court erroneously admitted Greenway’s testimony, any
error was harmless because the trial court could have reached its $45,000 judgment
without Greenway’s testimony since both Cheshier and David testified to the
aesthetic and utilitarian purposes of the trees and David’s report showed the
condition ratings of the trees. See TEX. R. APP. P. 44.1(a). In addition, Cheshier
gave his opinion about the intrinsic value of the trees, which included the benefits
of privacy, seclusion, shade, and a windbreak. Although he thought the trees were
“priceless,” he offered an opinion that the intrinsic value of the trees was $150,000.
Furthermore, he asked Ortega to pay $53,000 in damages because of Ortega’s
actions.
      D. Issue on Findings of Fact
      In a nonjury trial, a trial court must make findings of fact that support
ultimate issues. See Tex. Health Facilities Comm’n v. Presbyterian Hosp. N., 690
S.W.2d 564, 565 (Tex. 1985). “Mere recitals of testimony or references to or
summations of the evidence are improper.” Id. (quoting Tex. Health Facilities
Comm’n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 452 (Tex. 1984)). Thus, a

                                          10
trial court is not required to detail its damages award.        See Associated Tel.
Directory Publishers, Inc. v. Five D’s Publ’g Co., 849 S.W.2d 894, 901 (Tex.
App.—Austin 1993, no writ).        Additionally, a party suffers no injury if the
additional findings, if granted, would not produce a different judgment.
Williams v. State, 283 S.W.2d 444, 447 (Tex. Civ. App.—Waco 1955, writ ref’d);
see Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex. App.—Houston
[14th Dist.] 1999, pet. denied) (explaining that “if the requested findings will not
result in a different judgment, those findings need not be made”).
      The trial court, in its original findings of fact and in response to Ortega’s
request for additional findings, did not apportion damages. The trial court was
under no obligation to apportion its award into separate components if, in doing so,
it would not produce a different judgment. See Associated Tel. Directory, 849
S.W.2d at 901. In this case, there was sufficient evidence to support an award for
the intrinsic value of the trees of $45,000. Therefore, the refusal to apportion the
award caused Ortega no injury. See Williams, 283 S.W.2d at 447.
      E. Issue on Mitigation of Damages
      Ortega complains that the trial court did not consider the Cheshiers’ failure
to mitigate damages in regard to the tree stump removal, leveling of the ground,
and cleanup. Ortega has provided no authority for the Cheshiers’ duty to mitigate
damages in this situation, and as explained above, this injury alone would result in
no award. See Gilbert Wheeler, 2014 WL 4252273, at *3–4, *6. The evidence of
the intrinsic value of the trees supported the $45,000 award; therefore, the error, if
any, did not cause the rendition of an improper judgment or prevent Ortega from
properly presenting his case to us. See TEX. R. APP. P. 44.1(a).
                                   V. Conclusion
      After a review of the record, we hold that the trial court relied on sufficient
evidence to support its judgment and that the damages it awarded were for

                                         11
permanent injuries that could be recovered under the alternative measure of
damages for the loss of “intrinsic value” to the Cheshiers’ destroyed trees. See
City of Keller, 168 S.W.3d at 810; Cain, 709 S.W.2d at 176. We additionally hold
that any error in admitting Greenway’s opinion or not considering the Cheshiers’
failure to mitigate damages was harmless and that the trial court did not injure
Ortega when it failed to apportion its award. See TEX. R. APP. P. 44.1(a); Williams,
283 S.W.2d at 447. We overrule all of Ortega’s issues, including the three sub-
issues contained within his third and final issue.
                               VI. This Court’s Ruling
       We affirm the judgment of the trial court.




                                                          MIKE WILLSON
                                                          JUSTICE


January 29, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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