Opinion issued August 29, 2014




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-13-00533-CV
                            ———————————
         STORM RECONSTRUCTION SERVICES, INC., Appellant
                                         V.
                       MARK T. EDDINGSTON, Appellee



                    On Appeal from the 344th District Court
                          Chambers County, Texas
                         Trial Court Case No. 25941



                          MEMORANDUM OPINION

      Storm Reconstruction Services, Inc. (“SRS”) appeals the judgment

following a bench trial rendered in favor of appellee, Mark T. Eddingston, in his

suit for trespass to real property. In three issues, SRS contends that the trial court
erred because (1) SRS was privileged or lawfully authorized to enter Eddingston’s

property; (2) SRS is not liable for trespass in the absence of willful misconduct,

gross negligence, or bad faith; and (3) the evidence presented at trial does not

support the trial court’s judgment. We affirm.

                                   Background

      On October 12, 2010, Eddingston sued SRS for trespass to real property.

Following a bench trial, the court found in favor of Eddingston and awarded him

$23,973.33 in compensatory damages and $2,493.22 in prejudgment interest.

      1. Eddingston’s Testimony

      Eddingston testified as to his ownership of his 335 acres of land in

Chambers County that he uses for grazing, recreation, hunting, and fishing on the

bayou abutting the property. He also occasionally leased it to rice farmers.

      On January 13, 2010, he discovered that a heavy piece of equipment had

entered his property, knocked down a fence, collapsed two culverts, and created

deep ruts in the surface of the road. There were trackhoe marks near the downed

fence and on the damaged road. He contacted the Trinity Bay Conservation

District regarding the damage and was told to call Bob Jones with SRS and

Tommy Webster with Beck Disaster Recovery (“BDR”). 1



1
      BDR, a monitoring firm for the Texas Department of Transportation (“TxDoT”),
      was responsible for monitoring SRS’s post-Hurricane Ike debris removal,
                                         2
      Eddingston testified that Webster told him that he would go see the damage

and “was going to get with SRS and have them go back down there.” Eddingston

understood this to mean that SRS was the responsible party and SRS would repair

the road. When Eddingston later spoke with Jerry Hicks, the SRS employee sent

to make the repairs, Hicks initially stated that there had only been one red five-ton

crawler on Eddingston’s property but when told that his game camera had

photographed a yellow trackhoe on the property sometime in January or February

2010, Hicks acknowledged that there may have been a yellow crawler on the

property as well. Eddingston testified that he never consented to SRS or any of its

employees to enter his property.

      Although SRS attempted to repair the damaged road on at least two

occasions, it remained impassable due to the ruts and standing water.          After

receiving no further response from SRS regarding repairs, Eddingston hired Keith

Burkart to repair the road and the collapsed culverts.

      2. Keith Burkart’s Testimony

    Eddingston hired Burkart’s company, CK Backhoe Service, in March 2010, to

repair the damage to his road and culverts. Burkart testified that he believed a

heavy load had broken the culverts and “blown out” the road, causing one side of it

to be level with the bottom of the ditch. Burkart reshaped and repaired the road

      quantifying the material removed, and then reporting to TxDoT which then paid
      SRS for the work performed.
                                          3
with crushed rock and installed new culverts which, Burkart testified, were

necessary to return Eddingston’s property to its former condition.

      3. Wayne McKey’s Testimony

    McKey, a general engineering technician with TxDoT who worked with SRS

following Hurricanes Rita and Ike, testified that after BDR, TxDoT’s monitoring

firm, reported the quantities of Hurricane Ike debris removed by SRS, he would

pay SRS based on that information. After McKey became aware of Eddingston’s

reported property damage, he accompanied Webster, BDR’s project lead, and

Hicks to witness the second repair attempt by SRS. He testified that the repairs

included levelling and smoothing the road and filling the ruts with dirt. McKey

testified that his role was not to approve the repairs but simply to confirm that they

had been made. He noted that he had not personally received permission from

Eddingston to enter his property but that it was BDR’s responsibility to identify

property owners and obtain rights of entry.

      4. Mark Garrison’s Testimony

    Garrison, SRS’s Vice President of Operations during the time period relevant

to this suit, testified that SRS had eight trackhoes working on the bayou near

Eddingston’s property. He acknowledged that the two trackhoes shown in the

game camera photos looked like equipment that belonged to SRS and that, to his

knowledge, they were on Eddingston’s property.          He also acknowledged that

                                          4
photos of the downed fence showed trackhoe tracks. Garrison claimed that SRS

was possessed of a “blanket right of entry that was signed by Judge Sylvia that

covered any emergencies or any situations where they couldn’t find a landowner or

anything like that.” He testified that SRS worked at the direction of BDR, and that

BDR was responsible for obtaining licenses, permits, and rights of entry.

       5. Jerry Hicks’s Testimony

     Hicks, a foreman for SRS in 2009 and 2010, testified that he spoke with

Eddingston about the damage to his road but denied admitting to Eddingston that

SRS had caused the damage.

                                  Standard of Review

       When, as here, a party appealing from a non-jury trial does not request

findings of fact and conclusions of law, the appellate court presumes the trial court

found all fact questions in support of its judgment, and the reviewing court must

affirm the judgment on any legal theory finding support in the pleadings and

evidence. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.

1987); George v. Jeppeson, 238 S.W.3d 463, 468–69 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). In a bench trial, it is for the court, as trier of fact, to judge the

witnesses, to assign the weight to be given their testimony, and to resolve any

conflicts or inconsistencies in the testimony. Shaw v. Cnty. of Dallas, 251 S.W.3d

165, 169 (Tex. App.—Dallas 2008, pet. denied). Further, we consider only the

                                             5
evidence most favorable to the implied factual findings and disregard all opposing

or contradictory evidence. See Franklin v. Donoho, 774 S.W.2d 308, 311 (Tex.

App.—Austin 1989, no writ).

                                     Discussion

      SRS’s first issue contends that it is not liable for trespass because it was

privileged, or had lawful authority, to enter onto Eddingston’s property. In its

second issue, SRS argues that it is not liable for trespass in the absence of evidence

demonstrating willful misconduct, gross negligence, or bad faith.          Eddingston

asserts that SRS adduced no evidence at trial to support either argument.

      SRS first asserts that “a person is privileged to enter onto another’s land

when such action appears reasonably necessary to prevent serious harm to the

actor, the owner of the land, or a third person, or to the real or personal property of

any such person.” SRS fails to provide this Court with citation to the record

supporting its argument that its entry onto Eddingston’s land in January 2010 was

reasonably necessary to prevent serious harm to a person or to property. Its

argument that it acted under lawful authority is equally unavailing in that the

record reveals no evidence showing that SRS entered onto Eddingston’s land

pursuant to any lawful authority. See TEX. R. APP. P. 38.1(i). Indeed, Eddingston’s

testimony was that he never gave permission for SRS or any of its employees to

enter his property. Although Garrison testified that another judge had signed a

                                          6
“blanket right of entry . . . covering any emergencies or situations where they

couldn’t find a landowner,” SRS offered no evidence of this document or its

applicability to Eddingston.

        SRS next contends that it is not liable for the damage to Eddingston’s

property absent a showing of willful misconduct, gross negligence, or bad faith and

SRS cites to Texas Government Code section 418.023, which provides, in relevant

part:

        (a) Through the use of any state agency or instrumentality, the
            governor, acting through members of the Emergency Management
            Council, may clear or remove debris or wreckage from public or
            private land or water if it threatens public health or safety or public
            or private property in a state of disaster declared by the governor or
            major disaster declared by the president of the United States.

                                       ....

        (d) If the governor provides for clearance of debris or wreckage under
        this chapter, state employees or other individuals acting by authority
        of the governor may enter on private land or water to perform tasks
        necessary to the removal or clearance operation. Except in cases of
        wilful misconduct, gross negligence, or bad faith, a state employee or
        agent performing his duties while complying with orders of the
        governor issued under this chapter is not liable for the death of or
        injury to a person or for damage to property.

TEX. GOV’T CODE ANN. § 418.023(a), (d) (West 2012). A review of the record,

however, reveals no evidence demonstrating that a disaster declaration or state of

emergency existed by appropriate executive order or that SRS was acting pursuant

to such authority fifteen to sixteen months after Hurricane Ike came ashore. We

                                              7
find SRS’s argument based on section 418.023(d) unavailing. SRS’s first and

second issues are overruled.

       SRS’s third issue contends that the trial court’s finding that it committed

trespass is unsupported by the evidence.

       Trespass occurs when a person enters another’s land without consent.

Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343 S.W.3d 875, 882 (Tex.

App.—El Paso 2011, no pet.); Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex.

App.—Fort Worth 2006, pet. denied). A plaintiff must prove that (1) he owns or

has a lawful right to possess real property, (2) the defendant entered the land and

the entry was physical, intentional, and voluntary, and (3) the defendant’s trespass

caused injury. Pharaoh Oil & Gas, Inc., 343 S.W.3d at 882; Wilen, 191 S.W.3d at

798.

       Eddingston argues that the evidence is sufficient to support all of the

elements necessary to establish a trespass to real property.

       With regard to the first element, it is undisputed that Eddingston owned the

property in question. As to the second element, Hicks, an SRS foreman, admitted

to Eddingston that two of SRS’s trackhoes had entered onto Eddingston’s property.

Garrison, SRS’s former Vice President of Operations, testified that the trackhoes

shown in Plaintiff’s Exhibits 3 and 4 looked like equipment that belonged to SRS,

and that Plaintiff’s Exhibits 6 through 8 showed trackhoe marks next to the

                                           8
downed fence. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827

(Tex. 1997) (concluding that intent relevant to trespass action is only defendant’s

intent to enter property; motive is irrelevant). This evidence is sufficient to support

an implied finding that SRS’s entry onto Eddingston’s property was physical,

intentional, and voluntary.

      As to the third element, to make the road passable again and to restore

drainage, the roadway had to be repaired and the broken culverts replaced.

Eddingston paid Burkart $23,973.33 to restore his property to its former condition.

See Vaughn v. Drennon, 372 S.W.3d 726, 738 (Tex. App.—Tyler 2012, no pet.)

(noting measure of damages for trespass to real property is ordinarily cost and

expense of restoring land to its former condition, plus loss or damages occasioned

by being deprived of use of same, with interest). This evidence is sufficient to

support the trial court’s implied finding that SRS’s entry caused damage to

Eddingston’s property.

      Considering only the evidence most favorable to the implied factual findings

and disregarding all opposing or contradictory evidence, we conclude that there

was sufficient evidence to support the trial court’s conclusion that SRS trespassed

onto Eddingston’s property. We overrule SRS’s third issue.2


2
      In its reply brief, SRS argues that the evidence does not support the damages
      awarded in the judgment. However, we decline to address this argument because
      SRS cannot raise new issues for the first time on appeal in its reply brief. See
                                          9
                                    Judgment

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




      Crowder v. Scheirman, 186 S.W.3d 116, 119 fn.1 (Tex. App.—Houston [1st Dist.]
      2005, no pet.); Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.—
      Houston [1st Dist.] 2003, pet. denied).
                                        10
