                             NUMBER 13-09-00035-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


PAUL PONTON AND JOYCE M. PONTON,                                            Appellants,

                                            v.

RICHARD MILLER AND JARVIS MILLER,                                            Appellees.


                    On appeal from the 156th District Court
                         of Live Oak County, Texas.



                        MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Benavides
       After a jury trial, the jury found that Joyce M. and Paul Ponton, appellants,

trespassed on land owned by Richard and Jarvis Miller, appellees. The jury awarded cost

of restoration damages totaling $87,000. On October 22, 2008, the trial court entered

judgment on the verdict. The Pontons appealed, asserting that (1) the trial court submitted

an improper measure of damages; (2) the evidence is legally and factually insufficient to

support the damages award; and (3) the evidence is legally and factually insufficient to
support the jury’s finding that Joyce Ponton trespassed on the Millers’ property. We affirm.

                                              I. BACKGROUND 1

        This case calls into question the adage that “fences make good neighbors.” The

Pontons and the Millers own adjacent property on the shores of Lake Corpus Christi. At

one time, a drainage ditch divided the two properties. A fence exists on the Millers’ side

of the ditch. When the Pontons purchased their lot in December 2004, they believed that

this fence marked the boundary line between the two properties. Because the ditch

collected water, fallen trees, debris and even dead animals, the Pontons filled in the ditch

using dirt provided by a road construction company performing work in nearby Mathis,

Texas. Subsequent to filling in the ditch, the Pontons learned that the fence did not mark

the boundary between the properties; the Millers actually owned the ditch.

        Additionally, in an effort to maintain their shoreline, the Pontons hired a bulldozer

contractor to “clean” the shoreline. The bulldozer operator cleared grass, brush and other

debris, including some trees, off of the shoreline on the Ponton’s property. However,

according to the Millers, the bulldozer operator also removed dirt from their portion of the

shoreline.

        The Millers sued the Pontons alleging that the Pontons’ actions amounted to a

trespass on the Millers’ property. The Pontons filed a counterclaim asserting that they

owned the ditch by adverse possession. See TEX . CIV. PRAC . & REM . CODE ANN . § 16.026

(Vernon 2002). The case was tried to a jury, which concluded that the Pontons trespassed

on the Millers’ land. The trial court submitted a jury charge that included a question asking

the jury to calculate damages based on the cost to restore the Millers’ property to the


        1
          Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will only
discuss the facts insofar as they relate to the ultim ate disposition of this appeal. See T EX . R. A PP . P. 47.1.

                                                        2
condition it was in prior to the Pontons filling in the ditch and removing dirt from the

shoreline. The jury found that the cost to restore the ditch is $71,500 and the cost to

restore the shoreline is $15,500. The trial court rendered judgment on the verdict, and this

appeal ensued.

                            II. PROPER MEASURE OF DAMAGES

       In their first issue, the Pontons argue that the trial court erred by submitting a cost

of restoration measure of damages to the jury instead of submitting a diminution in fair

market value measure of damages.          The Pontons assert that because the cost of

restoration exceeds the diminution in value of the ditch and the shoreline, the proper

measure of damages is the diminution in value of those specific parts of the Millers’

property. The Millers contend that cost of restoration is the appropriate measure of

damages because the cost to restore is less than the diminution in value of their entire

property.

       The proper measure of damages is a question of law. Allied Vista, Inc. v. Holt, 987

S.W.2d 138, 141 (Tex. App.–Houston [14th Dist.] 1999, pet. denied). We review de novo

the trial court’s decision of which measure of damages to apply. C.C. Carlton Indus., Ltd.

v. Blanchard, 311 S.W.3d 654, 662 (Tex. App.–Austin 2010, no pet. h.) (citing TA

Operating Corp. v. Solar Applications Eng'g, Inc., 191 S.W.3d 173, 183 (Tex. App.–San

Antonio 2005, pet. granted); Matheus v. Sasser, 164 S.W.3d 453, 458 (Tex. App.–Fort

Worth 2005, no pet.)). A trial court commits reversible error when it instructs the jury on

an improper measure of damages. See Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 817 (Tex. 1997).

       Generally, “[w]hen an injury to land is temporary and can be remediated at

reasonable expense, the proper measure of damages is the cost of restoration to its

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condition immediately preceding the injury.” Mieth v. Ranchquest, Inc., 177 S.W.3d 296,

303 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (op. on reh’g) (citing Kraft v. Langford,

565 S.W.2d 223, 227 (Tex. 1978)). “However, the diminution in fair market value is the

measure of damages when the cost of restoration exceeds the diminution in fair market

value. Id. at 303-04 (citing North Ridge Corp. v. Walraven, 957 S.W.2d 116, 119 (Tex.

App.–Eastland 1997, pet. denied)); see Atlas Chem. Indus., Inc. v. Anderson, 514 S.W.2d

309, 319 (Tex. Civ. App.–Texarkana 1974), aff'd, 524 S.W.2d 681 (Tex. 1975) (op. on

reh’g).

          The Pontons contend that, based on their calculations using Richard Miller’s

testimony regarding the fair market value of the Millers’ property, the cost to restore the

ditch and the shoreline exceeds the diminution in value of those specific areas of the

Millers’ property. Citing Anderson, the Pontons assert that the fair market value of only the

damaged portions of the property is to be considered in determining which measure of

damages to apply. See Anderson, 514 S.W.2d at 319 (applying diminution in value as the

measure of damages and holding that the evidence supported the jury’s finding that the

diminution in value was $175 per acre and that 60 acres out of 185 total acres was

damaged). The Millers argue that the fair market value of the entire property must be

considered in determining whether to apply cost of restoration or diminution in value.

          Unlike in Anderson, no evidence was admitted regarding the diminution in value of

either the entirety of the Millers’ property or specifically of the ditch and shoreline. See id.

We will not assume, as the Pontons urge, that the diminution in value of the ditch and

shoreline is “100%.” Thus, without any record evidence to support the Pontons’ argument,

we cannot conclude that the diminution in value of the ditch and shoreline was greater than

the cost to restore those areas. Additionally, as the Eastland Court of Appeals noted in

                                               4
North Ridge Corporation v. Walraven, when determining whether the cost of repair or

restoration exceeds the diminution in value, the diminution in value of the entire property

is to be considered. 957 S.W.2d 116, 119-120 (Tex. App.–Eastland 1997, pet. denied)

(finding that when the cost of restoration or repair of the damaged portion of the property

is more than six times greater than the value of the entire property, diminution in value is

the proper measure of damages). The Pontons’ first issue is overruled.2

                                   III. SUFFICIENCY OF THE EVIDENCE

        In their second issue, the Pontons argue that the evidence is legally and factually

insufficient to support the jury’s damages awards. Specifically, the Pontons contend that

the evidence supporting the jury’s award for restoring the ditch is factually insufficient and

that the evidence supporting the jury’s award for restoring the shoreline is legally and

factually insufficient.

A.      Standard of Review

        When we perform a legal sufficiency review, we review the evidence in the light

most favorable to the verdict, crediting favorable evidence if a reasonable person could and

disregarding contrary evidence unless a reasonable person could not. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We deny a legal sufficiency challenge unless:

(1) there is no evidence of a vital fact; (2) the evidence to prove a vital fact is no more than

a scintilla; (3) the rules of evidence or law prohibit the consideration of the only evidence

offered to prove a vital fact; or (4) the evidence conclusively establishes the opposite of a

vital fact. See id. at 810. “[M]ore than a scintilla of evidence exists if the evidence ‘rises



        2
            Because we have overruled the Pontons’ first issue, we do not address their subissue in which they
state that the proper relief, should we sustain their first issue, is a rem and on both dam ages and liability. See
T EX . R. A PP . P. 47.1.

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to a level that would enable reasonable and fair-minded people to differ in their

conclusions.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

       In conducting a factual sufficiency review, we consider all of the evidence and will

only reverse the judgment if it is so against the great weight and credibility of the evidence

as to be clearly wrong and manifestly unjust. Arias v. Brookstone, L.P., 265 S.W.3d 459,

468 (Tex. App.–Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986)).

       Because the jury is the sole judge of the credibility of the witnesses, it may choose

to believe one witness over another. Id. (citing City of Keller, 168 S.W.3d at 819). We will

not impose our opinion to the contrary. Id. Resolving conflicts in the evidence is also

within the jury’s province, and we “must assume that jurors resolved all conflicts in

accordance with their verdict if reasonable human beings could do so.” Id.

B.     The Ditch

       Frank Blumberg, a businessman with experience in digging drainage ditches,

installing septic systems, and estimating “dirt volumes,” testified that the cost to restore the

ditch would be $91,000, assuming the ditch is 400 feet long, 30 feet wide, and seven feet

deep. At those dimensions, approximately 3,000 to 4,000 cubic yards of dirt would need

to be removed. Blumberg stated that Richard Miller provided the dimensions to him and

that he surveyed the ditch approximately six years earlier, at which time he personally

observed the ditch to have these dimensions. When Blumberg evaluated the ditch after

it had been filled in, he did not “put a tape to it,” but he “think[s] [that he] stepped it off.” He

used these observations when he calculated the amount of material and cost of labor to

restore the ditch.

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       However, Richard Miller testified that the ditch was 400 feet long, three to four feet

deep, and ranged in width from ten-to-twelve feet wide at one end to thirty-to-thirty-five feet

at the other end. Using these new dimensions, Blumberg estimated a restoration cost of

approximately $30,000 for removing 1,157 cubic yards of dirt. Blumberg further testified

that the estimate of $91,000 was based on his calculations in 2008 but that if he had

actually calculated the estimate in early 2005, the estimate would have “probably” been

$88,000.

       Paul Ponton testified that he filled in the ditch to a width of approximately forty-six

feet in order to make the ground level between the Pontons’ property and the Millers’

property. The Millers’ property is several feet lower than the Pontons’ property.

       The Pontons contend that Blumberg’s opinions are based on unfounded

assumptions because Blumberg used measurements that Richard Miller provided to him,

and Richard Miller contradicted those measurements at trial. See City of Keller, 168

S.W.3d at 813. The Pontons assert that this Court cannot disregard Richard Miller’s

contrary testimony. See id. However, the jury was presented evidence establishing that

the ditch was 400 feet long; three-to-four feet deep or seven feet deep; and that the dirt to

be removed covered either a width of ten-to-twelve fee to thirty-to-thirty-five feet, thirty feet,

or forty-six feet. Blumberg “stepped . . . off” the ditch when he made his calculations that

the ditch was 400 feet long, thirty feet wide, and seven feet deep. It was the jury’s duty to

resolve this conflicting evidence, and we will not disturb their decision on appeal. See

Arias, 265 S.W.3d at 468. The jury’s award of $71,500 to restore the ditch is not so

against the weight of the evidence as to be clearly wrong or manifestly unjust. See id.

C.     The Shoreline

       The Pontons assert that the evidence to support the jury’s award of $15,500 to

                                                7
restore the shoreline is legally and factually insufficient. The Pontons argue that there is

no evidence that dirt was removed from the shoreline and, alternatively, that if dirt was

removed, the evidence is not sufficient to support the conclusion that the restoration cost

is $15,500. Specifically, the Pontons challenge the testimony of David Underbrink, the

president of Naismith Engineering, the surveying company hired by the Millers. The

Pontons contend that Underbrink’s opinion is unfounded, arguing that he based his opinion

on Richard Miller’s statements that dirt had been removed from the shoreline.

       Underbrink testified that Richard Miller hired Naismith to determine how much dirt

had been removed from the shoreline. Richard Miller told Underbrink that he believed dirt

had been removed from an area of about 300 feet to a depth of about three feet. Naismith

Engineering performed two surveys in November 2006, one of which was taken after

Richard Miller hired the company to determine the amount of missing dirt. The surveys

were nearly identical and did not indicate that any dirt had been removed between the time

of the two surveys.

       Underbrink then evaluated the survey information “to see in the contouring in the

survey information . . . [whether] there were any gouges that looked like . . . apparent holes

in the general lay of the land.” He found some apparent holes, but they were not as

“drastic” as Richard Miller’s estimate of three feet deep. He conservatively estimated that

dirt had been removed to a depth of one foot, for a total amount of dirt removed of 1,000

cubic yards.

       To calculate the amount removed, Underbrink used computer modeling, which

allowed him to model the contours of the shoreline. Where the survey showed a “dip”

while the computer model showed no “dip,” Underbrink “tried to approximate what we

thought would be the normal surface.” Underbrink further testified about his method for

                                              8
determining how much soil had been removed, stating:

       The computer system sets up a grid of points and takes elevations on this
       grid system for both surfaces, so it has an existing surface. And in this
       case[,] the upper surface is a higher surface, so it takes those grid points and
       calculates the volume under both, and [it] just takes subtraction to find the
       difference.

Underbrink estimated that the cost to replace the 1,000 cubic yards of dirt and to restore

the shoreline would be $15,500.

       On cross-examination, Underbrink agreed that if dirt was removed only to a depth

of one foot, the remaining hole would be “imperceptible with the eye.” He also agreed that

it was possible that no dirt had actually been removed and that he was not an eyewitness

to any such removal. However, Underbrink was “very confident” in his calculation that dirt

had been removed up to a depth of one foot. Underbrink based this opinion on two

grounds: (1) Richard Miller’s statement that dirt had been removed; and (2) Underbrink’s

own computer modeling of the contours of the shoreline, which indicated that 1,000 cubic

yards of dirt had been removed.

       The Pontons contend that Underbrink’s opinion is undermined by Paul Ponton’s

testimony that he had more dirt than he needed to fill in the ditch. The Pontons also argue

that Rocky Ybanez’s, the owner of the bulldozer Paul Ponton hired to clean the shoreline,

testimony refutes Underbrink’s conclusion that dirt had been removed. Ybanez stated that

Paul Ponton hired his company to clear the shoreline of brush and other debris and that

Ybanez, Paul Ponton, and Ybanez’s bulldozer operator met to discuss the area Paul

Ponton wanted cleared. Paul Ponton did not instruct either Ybanez or the bulldozer

operator to remove any dirt; however, Ybanez did not supervise the actual work the

operator performed and could not state definitively that no dirt had been removed during



                                              9
the clearing process.

       During trial, Underbrink viewed a picture which showed a giant pile of debris,

including dirt, brush, and trees, that the bulldozer operator removed from the shoreline and

pushed onto the Pontons’ property. Underbrink noted that the removal of 1,000 cubic

yards of dirt from an area of approximately 300 feet and a depth of about one foot is

consistent with such clearing activity. Underbrink stated, “I think the calculations and the

assumptions I made for producing those calculations more closely follow the little bit of dirt

that gets scooped up with cleaning vegetation.” Underbrink’s opinion was consistent with

Ybanez’s testimony regarding the work Ybanez’s bulldozer operator performed for the

Pontons.

       The jury’s duty was to resolve any conflicts in the evidence and to weigh the

credibility of the witnesses. See Arias, 265 S.W.3d at 468. The evidence before the jury

was such that reasonable people could differ in their conclusions and is thus legally

sufficient. See Ridgway, 135 S.W.3d at 601. Our resolution of the Pontons’ legal

sufficiency challenge also resolves their assertion that the trial court erred by denying their

motion to disregard and for judgment notwithstanding the verdict. See B & W Supply, Inc.

v. Beckman, 305 S.W.3d 10, 15 (Tex. App.–Houston [1st Dist.] 2009, pet. denied) (“An

appellate court reviews a [judgment notwithstanding the verdict] under a no-evidence

standard of review.”); Shell Oil Prods. Co. v. Main Street Ventures, L.L.C., 90 S.W.3d 375,

387 (Tex. App.–Dallas 2002, pet. dism'd by agr.) (“A trial court may disregard a jury finding

and grant a motion for JNOV only when there is no evidence to support the finding.”) (citing

Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990)). Additionally, the jury’s

verdict is not “so against the great weight and credibility of the evidence as to be clearly


                                              10
wrong and manifestly unjust.” Arias, 265 S.W.3d at 468. Therefore, the evidence is also

factually sufficient. Id. We overrule the Pontons’ second issue.

                                      IV. JOYCE PONTON

       In their third appellate issue, the Pontons assert that the evidence is legally and

factually insufficient to support the jury’s answer to question number one in the charge.

Question number one asked the jury, “Did the Pontons trespass on the Miller’s [sic]

property?” The charge defined “trespass” as “enter[ing] another’s land without consent”

which “can be made by permitting a thing or person to cross the boundary of a property.”

Specifically, the Pontons argue that the evidence is legally and factually insufficient to

support a conclusion that Joyce Ponton trespassed on the Millers’ land. The Millers

contend that the Pontons have waived this issue by failing to: (1) object to the charge

including both Joyce and Paul; (2) raise this issue in their motion to disregard and for

judgment notwithstanding the verdict; and (3) specifically challenge in their motion for new

trial the jury’s finding that both Pontons committed trespass against the Millers. The Millers

further assert that the evidence is legally and factually sufficient to support the jury’s finding

that Joyce Ponton committed trespass against the Millers.

A.     Preservation

       To properly preserve error, the party alleging error must have made a timely,

specific objection or motion to the trial court and must have received an adverse ruling on

the objection. See TEX . R. APP. P. 33.1. In their motion for new trial, the Pontons

specifically asserted that the evidence was legally and factually insufficient to support the

jury’s finding that the “Pontons” committed trespass. By so doing, the Pontons properly

preserved their complaint that the evidence is legally and factually sufficient to support the


                                               11
jury’s conclusion that Joyce Ponton committed trespass. See TEX . R. CIV . P. 324(b)(2)

(requiring a party to include a factual sufficiency challenge in a motion for new trial);

El-Khoury v. Kheir, 241 S.W.3d 82, 86 (Tex. App.–Houston [1st Dist.] 2007, pet. denied)

(stating that a legal sufficiency challenged may be preserved by including the argument in

a motion for new trial). However, by preserving this issue in their motion for new trial,

should we sustain their argument, the Pontons will be entitled to, at most, a remand. See

El-Khoury, 241 S.W.3d at 90 (citing Werner v. Colwell, 909 S.W.2d 866, 870 n.1 (Tex.

1995); Horrocks v. Tex. Dep't of Transp., 852 S.W.2d 498, 499 (Tex. 1993) (per curiam)).

B.     Legal and Factual Sufficiency

       The Pontons allege that the evidence demonstrated that Joyce Ponton was not

responsible for any trespass that occurred on the Millers’ property.              During direct

examination, Joyce Ponton agreed that she did not “have anything to do with the mowing

out there on the Miller property or the clearing of the brush.” She further agreed that she

did not “have anything to do with calling the [City of Corpus Christi] and getting permission

to do that clearing.” Additionally, Joyce did not perform any maintenance on the ditch.

However, during cross-examination, she stated that, during the course of a property

dispute with the prior owners of the Pontons’ lot, she and Paul Ponton received permission

to go on the land at which point, “we started cleaning [the ditch] and taking care of [the

ditch] to protect against the trees falling in. . . .” Additionally, during cross-examination,

Paul Ponton agreed that he and Joyce Ponton “hired a bulldozer to do some work out there

at the lake. . . .” Paul Ponton also testified that, once they took over the property, “the first

thing we did is try to get the ditch to where it would drain because of the smell. . . . And we

could not remove the water.” Later, Paul Ponton stated, regarding the ditch, “we filled it


                                               12
in.”

        Ybanez testified that he charged the Pontons $3,425 for the bulldozer work they

hired him to perform on the shoreline. The record contains a check for $3,425, signed by

Joyce Ponton and made payable to Ybanez’s company. Ybanez confirmed that this check

was payment for the work done at the shoreline.

        The Pontons have a bulkhead on the shoreline. According to Larry Fisher, the

survey department director for Naismith Engineering who performed a survey of the Millers’

property, the Pontons’ bulkhead encroaches slightly onto the Millers’ property. Joyce

Ponton referred to the bulkhead as “our bulkhead.” Paul Ponton confirmed that the

bulkhead “sticks over into the Miller property.”3

        As the triers of fact, the jury had the duty to resolve the conflicts in the evidence.

See Arias, 265 S.W.3d at 468. The jury heard Joyce Ponton’s contradictory testimony

concerning the Pontons’ actions in relation to the ditch. The jury also had evidence before

it that the bulkhead owned by the Pontons encroached on the Millers’ property. The jury

“may resolve inconsistencies in the testimony of any witness.” McGalliard v. Kuhlmann,

722 S.W.2d 694, 697 (Tex. 1986) (citing Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792

(1951)). “They may choose to believe one witness and disbelieve another.” City of Keller,

168 S.W.3d at 819. We “cannot impose [our] own opinions to the contrary.” Id. We

conclude that the evidence before the jury was such that reasonable people could differ

in their conclusions and is thus legally sufficient. See Ridgway, 135 S.W.3d at 601. We



        3
           Prior to the conclusion of the evidence in the underlying trial, the parties agreed that, by adverse
possession, the Pontons acquired title to the surface area encroached upon by the bulkhead. In its judgm ent,
the trial court incorporated the parties’ agreem ent and rendered judgm ent vesting title in the Pontons to the
property form erly owned by the Millers upon which the bulkhead encroached.

                                                     13
further conclude that the jury’s determination that the Pontons trespassed on the Millers’

land was not “so against the great weight and credibility of the evidence as to be clearly

wrong and manifestly unjust.” Arias, 265 S.W.3d at 468. Therefore, the jury’s answer to

question one is supported by factually sufficient evidence. Id. The Pontons’ third issue

overruled.

                                      V. CONCLUSION

        Having overruled all of the Pontons’ appellate issues, we affirm the judgment of the

trial court.


                                                    ______________________________
                                                    GINA M. BENAVIDES,
                                                    Justice

Delivered and filed the
26th day of August, 2010.




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