Enbridge Pipelines (East Texas) L.P. v. Gilbert Wheeler, Inc.
393 S.W.3d 921
Tex. App.2013Background
- Gilbert Wheeler, Inc. owns a 153-acre rural tract in Shelby County with a cabin and trees valued by Wheeler; Enbridge sought ROWA to construct a pipeline across the property.
- ROWA promised to bore under the easement without excavation, but contractors bulldozed the easement and damaged vegetation and soil, affecting a 300-foot area including a stream.
- Wheeler sued for contract breach and trespass, seeking damages for property injury; the jury found Enbridge liable and Wheeler chose to recover the cost to restore.
- Trial Judge did not make a finding on whether the property injury was permanent or temporary, and Wheeler’s damages were based on a temporary measure (cost to restore), which Enbridge challenged on appeal.
- On rehearing, the court reversed, held that no legally sufficient finding on the nature of the injury existed, and rendered a take-nothing judgment for Wheeler.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury should decide if the injury was permanent or temporary. | Enbridge argued the court should submit permanent/temporary issue. | Wheeler argued the court should determine damages with proper measures. | Issue sustained; no finding on nature of injury entered. |
| Whether omission of permanent/temporary injury question was preserved and reversible error. | Enbridge properly objected and preserved error. | Wheeler contends no error since trial strategy allowed; error not reversible. | Omission preserved and reversible; error invalidates damages. |
| Whether the measure of damages could be awarded without a finding of the injury’s nature. | Temporary damages (cost to restore) may be awarded; permanent damages separate. | Separate measures mutually exclusive; need nature finding to apply correct measure. | Damages invalid without finding on nature of injury. |
| Whether the trial court’s lack of a finding on injury nature mandated reversal. | Judgment based on jury awards; finding not required to be separate. | Court must have finding to support the measure of damages. | Reversed and rendered take-nothing judgment. |
Key Cases Cited
- Hall v. Hubco, Inc., 292 S.W.3d 22 (Tex. App.—Houston [14th Dist.] 2006) (measures for injury to real property depend on permanency)
- Trinity & S. Ry. v. Schofield, 10 S.W. 575 (Tex. 1889) (cost to restore for temporary injury)
- Yancy v. City of Tyler, 836 S.W.2d 337 (Tex. App.—Tyler 1992) (permanent vs temporary damages distinction)
- Kraft v. Langford, 565 S.W.2d 223 (Tex. 1978) (mutually exclusive permanent/temporary damages)
- Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) (intrinsic value damages for vegetation)
- Payne v. Texas Dept. of Highways & Pub. Transp., 838 S.W.2d 235 (Tex. 1992) (preservation of error and jury charge rules)
- Gulf States Utils. Co. v. Low, 79 S.W.3d 561 (Tex. 2002) (cannot deem findings inconsistent with final judgment)
- Schofield, 10 S.W.2d 577 (Tex. 1889) (whether injury type and damages are questions for jury)