                                       NO. 12-11-00303-CV

                          IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

ENBRIDGE PIPELINES                                       §           APPEAL FROM THE 273RD
(EAST TEXAS) L.P.,
APPELLANT

V.                                                      §            JUDICIAL DISTRICT COURT

GILBERT WHEELER, INC.,
APPELLEE                                               §             SHELBY COUNTY, TEXAS

                                       OPINION ON REHEARING
       Enbridge Pipelines (East Texas) L.P. (Enbridge) filed a motion for rehearing, which is
granted. We withdraw our opinion and judgment of October 17, 2012, and substitute the
following opinion and judgment in its place.
       Enbridge appeals the trial court’s judgment entered in favor of Appellee Gilbert Wheeler,
Inc. (Wheeler). Enbridge raises eleven issues on appeal. We reverse and render.


                                                BACKGROUND
       Gilbert and Katherine Wheeler owned a one hundred fifty-three acre tract of rural,
wooded property in Shelby County, Texas, that they called the “Mountain.”1 There was a cabin
on the property, in which the Wheelers enjoyed spending their leisure time. The location of the
cabin provided the Wheelers a pleasing view of, among other things, a variety of trees on the
property.
       In October 2007, the Wheelers entered into negotiations with independent contractors
working for Irv Nelson Associates Field Services, Inc. (INA) on behalf of Enbridge and another


       1
           Since 1988, the “Mountain” has been owned by Gilbert Wheeler, Inc.
contractor representing Enbridge for a right of way agreement (ROWA) to permit Enbridge to
construct a pipeline across the Wheelers’ property.                     During negotiations, Gilbert Wheeler
expressed great interest in protecting the trees on the property. As a result of these negotiations,
Gilbert Wheeler’s son, Don Wheeler, drafted the ROWA containing the following pertinent
language: “The Grantee agrees to lay the pipeline by using the boring method and without any
excavation on said easement.” Gilbert Wheeler executed the ROWA as President of Gilbert
Wheeler, Inc. on October 26, 2007. The executed ROWA was forwarded via email to Irv
Nelson, who forwarded it to four Enbridge representatives along with the comment, “Tract S-56
Wheeler Inc.––looks ok.”             Later that day, Enbridge delivered payment to Wheeler.                           On
November 6, 2007, INA filed and recorded the ROWA with the Shelby County Clerk.
         Enbridge proceeded to construct the pipeline. It employed TSC Sieber to perform the
work. Sieber hired G.B. “Boots” Smith to perform the necessary directional drilling. However,
despite the boring provision in the ROWA, the contractors bulldozed the easement, destroying
the trees and other vegetation on it, disturbing the soil, and disrupting the natural, meandering
flow of a stream in that area of the property. The three hundred foot area affected is visible from
the Wheelers’ cabin.
         On December 6, 2007, Wheeler filed the instant suit for, among other things, breach of
contract and trespass and sought damages for injury to the property. The matter proceeded to a
jury trial. The trial court submitted both the contract and trespass issues to the jury. The jury
found Enbridge liable for both breach of contract and trespass and awarded damages for each
cause of action. Wheeler elected to recover the “cost to restore” damages awarded for breach of
contract, and this appeal followed.


             MEASURE OF DAMAGES TO REAL PROPERTY AND NECESSARY JURY FINDINGS
         In its eighth issue, Enbridge argues that the trial court erred in failing to submit to the jury
the issue of whether the injury to Wheeler’s property was permanent or temporary.2




         2
             In its statement of its eighth issue, Enbridge suggests that the question was a predicate to the trespass
question. However, in its discussion of the issue, it refers us to the argument it made before the trial court that a jury
finding on the nature of the property injury was necessary to determine the appropriate measure of damages. We
conclude that Enbridge’s briefing of its eighth issue is properly construed to incorporate the broad argument it made
to the trial court. See TEX. R. APP. P. 38.1(f), 38.9.


                                                            2
Standard of Review
       A trial court has wide discretion in submitting jury questions as well as instructions and
definitions. Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 431 (Tex. App.–Houston [14th
Dist.] 1998, pet. denied). This discretion is subject only to the requirement that the questions
submitted must (1) control the disposition of the case, (2) be raised by the pleadings and the
evidence, and (3) properly submit the disputed issues for the jury’s determination. TEX. R. CIV.
P. 277, 278; Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App.–Tyler 2006, pet. denied);
Lee–Wright, Inc. v. Hall, 840 S.W.2d 572, 577 (Tex. App.–Houston [1st Dist.] 1992, no writ).
The trial court’s judgment will not be reversed for charge error unless the error was harmful, i.e.,
it probably caused the rendition of an improper verdict or probably prevented the petitioner from
properly presenting the case to the appellate courts. TEX. R. APP. P. 44.1; see also Columbia Rio
Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).                  Charge error is
generally considered harmful if it relates to a contested, critical issue. Hawley, 284 S.W.3d at
856.
Measuring Damages for Injury to Real Property
       When injury to real property is involved, the correct measure of damages is a fact specific
inquiry. See Hall v. Hubco, Inc., 292 S.W.3d 22, 32 (Tex. App.–Houston [14th Dist.] 2006, pet.
denied). The general principles for measuring damages for injury to real property apply in a
variety of cases irrespective of whether the injury arises from contract or tort. See id. at 32 n.4.
       Damages for Permanent versus Temporary Injury
       A party cannot recover damages for both permanent and temporary damages in a single
action because the concepts of permanent and temporary injuries are mutually exclusive. Kraft
v. Langford, 565 S.W.2d 223, 227 (Tex. 1978); Yancy v. City of Tyler, 836 S.W.2d 337, 340
(Tex. App.–Tyler 1992, writ denied). Similarly, the measure of damages for each type of injury
is different. Yancy, 836 S.W.2d at 340. Where land is found to have been permanently injured,
the landowner is entitled to recover the difference in the value of the property before and after its
injury or, in cases where there is no reduction in market value, the landowner may recover
intrinsic value damages. See Yancy, 836 S.W.2d at 340; see also Porras v. Craig, 675 S.W.2d
503, 506 (Tex. 1984) (discussing recovery of intrinsic value damages arising from destruction of
ornamental vegetation).     On the other hand, where the injury to the land is found to be
temporary, the plaintiff can recover the amount necessary to place it in the same position it



                                                  3
occupied before the injury, i.e., the cost to restore. See Trinity & S. Ry. v. Schofield, 10 S.W.
575, 576–77 (Tex. 1889); Weaver Constr. Co. v. Rapier, 448 S.W.2d 702, 703 (Tex. App–Dallas
1969, no writ).
        Subject to exceptions not applicable to the case at hand, whether injury to real property is
permanent or temporary is a question of fact. Cook v. Exxon Corp., 145 S.W.3d 776, 784 (Tex.
App.–Texarkana 2004, no pet.). Consequently, before damages for injury to real property may
be awarded, the plaintiff must first obtain a finding on whether the injury to the land was
permanent or temporary. See Garey Constr. Co., Inc. v. Thompson, 697 S.W.2d 865, 866–67
(Tex. App.–Austin 1985, no writ) (overruling issue concerning failure to submit to jury issue of
permanent versus temporary injury to real property because appellant failed to object to omission
of question); see also Schofield, 10 S.W. at 577 (“[w]hether the injury [is] . . . permanent or
temporary . . . and the consequent amount of damages . . . are all questions for the determination
of the jury”).
Preserving Error on Omission of Charge Question on Nature of Injury
        There should be but one test for determining if a party has preserved error in the jury
charge, and that is whether the party made the trial court aware of the complaint, timely and
plainly, and obtained a ruling. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 241 (Tex. 1992). The more specific requirements of the rules should be applied, while they
remain, to serve rather than defeat this principle. Id. If an issue is properly pleaded and is
supported by some evidence, a litigant is entitled to have a controlling question submitted to the
jury. See TEX. R. CIV. P. 278; Triplex Commc’ns v. Riley, 900 S.W.2d 716, 718 (Tex. 1995). A
trial court may refuse to submit a question to the jury if the issue is uncontroverted. See Tex.
Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holding, Inc., 210 S.W.3d 563, 580 (Tex. App.–
Austin 2007, pet. denied).
        In the case at hand, Enbridge initially sought to have the trial court find that the evidence
conclusively supported that the injuries to Wheeler’s property were permanent. The trial court
expressly declined to rule on this request.       Thereafter, at the charge conference, Enbridge
objected to the omission of a question asking the jury to determine whether the injury to
Wheeler’s property was permanent or temporary. Specifically, in their exchange on this issue
before the trial court, the parties argued as follows:




                                                  4
                 [Enbridge’s Counsel #1]: I think where our question is, if we are going to submit this and
        not have the Court deem this to be a permanent injury, we’re entitled under your Question No. 2 to
        have the Court have the - - or as a predicate before you get to Question No. 2, [3] have the jury
        determine whether this is temporary or permanent, and then an opportunity for the jury to assess
        these as permanent damage. If there is a conflict in whether it’s temporary or permanent, and the
        Court is not going to rule as a matter of law, the jury is certainly entitled to choose between those
        two because they’re mutually exclusive.

                [Wheeler’s Counsel]: Well, Your Honor, the - - whether something is temporary or
        permanent is based on, you know, the comparison between cost of restoration an - - and
        diminution of value. However, even if there are permanent damages, we’re relying on an
        exception to the general rule, which allows recovery for intrinsic value of trees.

                 So - - and under breach of contract, the general rule is you get the cost of restoration. So
        we’ve got a question in here about the diminution, the fair market value; I’m sure the jury is going
        to answer it. If we want, I suppose we could just ask this question unconditionally and just say,
        you know, by what amount did the - - did the law - - did destruction cause to the property, but
        cause of diminution in the fair market value - - you know, the loss of the trees. But I think that we
        have got it phrased appropriately.

                 ....

                 [Enbridge’s Counsel #2]: Well, they’ll have the jury answering two separate damages
        questions. Before the jury can even address the proper measure of damages, it’s got to determine
        the character of the injury to the real property. Now, there’s reams of case law on that. The jury
        has heard evidence as to permanent injury to the land and temporary injury to the land.

               So the jury has to determine the character of the injury before the proper measure of
        damages can be considered by the jury. There should be a series of conditional - -

                 ....

                  The Court: Okay. I’ll say it one more time. I’m not making a ruling at this time. Can I
        say that any clearer? Or - - I’ll try to - - any question in your mind as I’m not making a ruling at
        this time as far as the damages being permanent or temporary.

                 [Enbridge’s Counsel #1]: No, Your Honor, I’m clear on that. And what I am concerned
        about in light of that is that we need a jury question based upon the Court’s ruling that asks the
        jury whether or not these are temporary or permanent injuries, and let the jury make that
        determination. Case law is very clear that when there is conflict and the Court has not made such
        a ruling as a matter of law, it is a question for the jury, and the jury is entitled to make that
        determination.

                The Court: We’re going to have to bring in and get started on the rest of the evidence.
        And I guess we’ll take [this up at the] charge conference.

                 ....

                 The Court: That’s the approach I’d like to take, is get some answers from the jury on the
        fact questions and then make a determination as to the - - as a legal matter as to whether the
        damages should be permanent or temporary.

                 [Wheeler’s Counsel]: Very good, Your Honor.

        3
           Question 2 was the first damages question presented to the jury and related to damages for Enbridge’s
violation of the ROWA.


                                                         5
                ....

                 [Enbridge’s Counsel #1]: If I could respond, Your Honor, to that. If we don’t ask the
       jury - - as I understand it, we have made a motion for the Court to deem this to be a permanent
       injury, and the Court has denied that motion. But the Court has said that a decision will not be
       made by the Court as - - at this time as to whether the injury is temporary or permanent.

                  In light of that position, the Plaintiffs are required to ask the jury for a finding factually as
       to whether or not this injury is temporary or permanent. There is no question in the Plaintiff’s
       charge asking the jury whether the injury is temporary or permanent; there is only an assumption
       that it is temporary and the damage question predicated on that assumption. They only asked the
       jury one valid question, and that is based on temporary damages. That will not allow the Court to
       make a determination later because there’s no finding or issue or any reference to a permanent
       injury or the proper measure of damages.

                 And we believe, in light of the decision by the Court, and in light of the position taken by
       the Court, there has to be a question in this charge submitted by the Plaintiffs as to whether or not
       this injury is temporary or permanent, that the jury is allowed to determine and predicate damages
       based upon either on that they find.

                ....

                [Wheeler’s Counsel]: Judge, if she’s concerned that we’re not submitting our case
       properly - - we believe we are, and that’s our risk. If we don’t get a finding for relief, then you
       can deal with that at the judgment phase.

                ....

                 [Enbridge’s Counsel #1]: [Question number five], which is also a damages question for
       diminution and fair market value. The law is very clear that you can have permanent damages - -
       or you can have temporary damages which are mutually exclusive; you cannot have both. And
       this is their attempt to recover both of them under a theory that’s not recognizable under the
       situation at fault.


We conclude that Enbridge undoubtedly made the trial court aware of its complaint timely and
plainly. See Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 937
S.W.2d 60, 70 (Tex. App.–Houston [14th Dist.] 1996), aff’d as modified, 975 S.W.2d 546 (Tex.
1998) (when objection made and court made no change in charge, it is presumed that objection
was properly and timely presented and overruled).
Omission Over Objection of Charge Question on Nature of Injury
       If a question omits some essential element of a ground of recovery and the element or
ground is submitted to the jury over the objection of the party without the burden of proof, the
objecting party is entitled to rendition of judgment in its favor, even if the jury returns a finding
on the submission in favor of the party with the burden of proof. See TEX. R. CIV. P. 279;
Mangum v. Turner, 255 S.W.3d 223, 227 (Tex. App.–Waco 2008, pet. denied) (citing Payne,



                                                            6
838 S.W.2d at 241 (Tex.1992); McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989)). An
element omitted from the charge by the party with the burden of proof cannot be deemed in that
party’s favor when the other party objected to the omission of the missing element or requested
its submission. See TEX. R. CIV. P. 279; Payne, 838 S.W.2d at 241. The objection or request
places the burden of submitting a correct question on the party with the burden of proof, not the
trial court, and the result of that party’s failure to submit a correct question after objection is
waiver of the ground.4 See McKinley, 763 S.W.2d at 410; Mangum, 255 S.W.3d at 227. The
refusal to submit a jury question is reversible error if it was reasonably necessary to enable the
jury to render a proper verdict. See Tex. R. Civ. P. 277, 278; Tex. Workers’ Comp. Ins. Fund v.
Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000).
        As set forth above, Enbridge properly objected to the omission of the charge question.
Nonetheless, the trial court submitted the charge without the question.
        On appeal, Wheeler argues that it agrees with Enbridge that the injury was permanent,
and, therefore, there was no need for the jury to resolve this question. It is apparent from the
record, however, that its position at trial was to submit two separate damages questions to the
jury––one based on a cost to restore measure (a temporary damages measure) and another based
on intrinsic value of the trees (a permanent damages measure)––and to permit the trial court to
determine the nature of the injury only after it was apparent what type of damages had been
awarded. Wheeler’s attempt on appeal to stipulate to the nature of damages does not excuse its
failure to submit this fact issue to the jury.
        Despite its ultimate intention to resolve the issue, which it expressed to the parties before
the case was submitted to the jury, the trial court never made a finding on the nature of the
injury. Wheeler made a motion for judgment, in which it elected the jury’s award of $300,000 in
damages for breach of contract based on a cost to restore measure. Enbridge filed a motion for
judgment notwithstanding the verdict and a motion for new trial, in which it again addressed the
lack of a finding regarding the nature of the injury to Wheeler’s property.
        Presently, despite Enbridge’s requests and objections to the trial court, there is,
ultimately, no factual finding on the nature of the injury to Wheeler’s property. And because
Enbridge objected to the omission of this issue on which Wheeler bore the burden of proof, we


        4
            The trial court may make an express finding any time before it renders judgment. See TEX. R. CIV. P.
279.


                                                        7
may not deem a finding in support of the judgment. See Payne, 838 S.W.2d at 241; Mangum,
255 S.W.3d at 227. Accordingly, we need not consider whether the evidence conclusively
establishes that the damages were either permanent or temporary. For even if the trial court
could have properly refused to submit the issue to the jury on that basis, the fact remains that (1)
the trial court did not make a finding, (2) the jury was not permitted to make a finding, and (3)
we may not deem that fact found.5 Consequently, Wheeler’s damage awards lack a critical
predicate. See TEX. R. APP. P. 44.1; Thompson, 697 S.W.2d at 866-67; see also Schofield, 10
S.W. at 577.6 Therefore, since Wheeler failed to secure a finding on the nature of damages to
real property, it was not entitled to an award of damages for this injury, whether the injury arises
from contract or tort.7 See Thompson, 697 S.W.2d at 866–67. Enbridge’s eighth issue is
sustained.8


                                                    DISPOSITION
         Having sustained Enbridge’s eighth issue and concluded that we need not address its
remaining issues, we reverse the trial court’s judgment and render judgment that Wheeler take
nothing.
                                                                         JAMES T. WORTHEN
                                                                               Chief Justice

Opinion delivered February 13, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                                    (PUBLISH)

         5
            On appeal, both parties operate under the assumption that the injury was permanent. But even assuming
arguendo that the evidence at trial was conclusive that the injury to Wheeler’s land was permanent, we could not
deem this finding because we may not deem a finding that requires a different judgment than the one rendered by
the trial court. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 564 (Tex. 2002); see also Logan v. Mullis, 686
S.W.2d 605, 609 (Tex. 1985) (holding court of appeals erred by deeming finding in support of verdict instead of
final judgment). Here, the trial court rendered judgment based on the jury’s award of “cost to restore” damages, a
measure available only for temporary injury to land.
         6
           We decline to hold that the instant case is within the limited exception that the general rule of damages for
injury to land should be waived so as to obtain a just and equitable result when strict adherence to the general rule
would result in an outcome which would be unfair or unjust. See Lone Star Dev. Corp. v. Reilly, 656 S.W.2d 521,
526 (Tex. App.–Dallas 1983, writ ref’d n.r.e.) (citing B.A. Mort. Co. v. McCullough, 590 S.W.2d 955, 957 (Tex.
Civ. App.–Fort Worth 1979, no writ)).
         7
             See Hall v. Hubco, Inc., 292 S.W.3d at 32 n.4.
         8
          Because our resolution of Enbridge’s eighth issue is dispositive of the appeal, we do not address its
remaining ten issues. See TEX. R. APP. P. 47.1.


                                                              8
                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                         FEBRUARY 13, 2013


                                       NO. 12-11-00303-CV

                        ENBRIDGE PIPELINES (EAST TEXAS) L.P.,
                                     Appellant
                                        v.
                              GILBERT WHEELER, INC.,
                                      Appellee

_____________________________________________________________________________
                      Appeal from the 273rd Judicial District Court
                   of Shelby County, Texas. (Tr.Ct.No. 07CV29,883)
_____________________________________________________________________________

                       THIS CAUSE came to be heard on the oral arguments, appellate record,
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED, and
DECREED by this court that the trial court’s judgment be reversed and judgment rendered that
GILBERT WHEELER, INC. take nothing, and that all costs of this appeal are hereby adjudged
against the Appellee, GILBERT WHEELER, INC., in accordance with the opinion of this
court; and that this decision be certified to the court below for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      9
