                                  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
