Opinion
NO. 12-11-00303-CV
11-16-2016
ENBRIDGE PIPELINES (EAST TEXAS) L.P., APPELLANT v. GILBERT WHEELER, INC., APPELLEE
APPEAL FROM THE 273RD JUDICIAL DISTRICT COURT SHELBY COUNTY, TEXAS
MEMORANDUM OPINION ON REMAND
Enbridge Pipelines (East Texas), L.P. appealed the trial court's judgment rendered in favor of Appellee Gilbert Wheeler, Inc. (Wheeler). In response to Enbridge's eighth issue on original submission, we determined that the trial court erroneously overruled Enbridge's objection to the omission of a jury question concerning whether the injury to Wheeler's trees was temporary or permanent. See Enbridge Pipelines (E. Tex.), L.P. v. Gilbert Wheeler, Inc., 393 S.W.3d 921, 928 (Tex. App.-Tyler 2013), rev'd, 449 S.W.3d 474 (Tex. 2014). We further determined that there was no factual finding on the nature (temporary versus permanent) of the injury to Wheeler's property and that we were prohibited by rule of law from deeming such a finding in support of the judgment. See id. Thus, we concluded that Wheeler's damage awards lacked a critical predicate. See id. at 929. Accordingly, we reversed the trial court's judgment and rendered a judgment that Wheeler take nothing. See id.
Wheeler filed a petition for review with the Texas Supreme Court, which was granted. The supreme court held that (1) the issue of whether damages are permanent or temporary is a question of law, (2) because of the economic feasibility exception and the parties' agreement, the damage to Wheeler's property is permanent as a matter of law, (3) because the damage to the property is permanent, Wheeler cannot recover the "cost to restore" damages awarded by the jury, (4) intrinsic value damages are permitted for this sort of injury under a breach of contract theory, (5) any error in the submission of intrinsic value damages in conjunction with Wheeler's trespass cause of action was harmless, and (6) any diminution in fair market value in this case, even the $3,000.00 to which Enbridge's expert testified, is nominal and, thus, does not interfere with Wheeler's recovery of intrinsic value damages. See Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 481-85 (Tex. 2014). Ultimately, the court reversed our judgment and remanded the cause to us for consideration of certain issues, which, as a result of our holding, we did not address on original submission.See Wheeler, 449 S.W.3d at 486. We affirm.
Enbridge seeks to raise "supplemental issues" on remand, which were not raised in this court on original submission. We conclude that Enbridge is not entitled to raise new issues at this juncture. See Key v. W.T. Grant Co., 439 S.W.2d 902, 903 (Tex. Civ. App.-El Paso 1969, no writ).
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." 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, various species of trees adorning the property.
Since 1988, the "Mountain" has been owned by Gilbert Wheeler, Inc.
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 contractor representing Enbridge for a right of way agreement (the agreement) 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 agreement 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 agreement as President of Gilbert Wheeler, Inc. on October 26, 2007. The executed agreement 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 agreement 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 agreement, 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, including $288,000.00 in "intrinsic value" damages. Wheeler elected to recover for breach of contract, and this appeal followed.
JURY QUESTION ON NONAGREEMENT
In its eleventh issue on original submission, Enbridge argued that the trial court abused its discretion in refusing to submit a question or instruction in the court's charge on Enbridge's defense of nonagreement. Specifically, Enbridge argued that the boring provisions in the agreement were inserted by Wheeler after the fact either by fraud or mistake. 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). On appeal of a trial court's refusal to submit a requested question or instruction, we must determine whether the request was reasonably necessary to enable the jury to render a proper verdict. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). 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. On the other hand, error in the omission of an issue is harmless "when the findings of the jury in answer to other issues are sufficient to support the judgment." Shupe, 192 S.W.3d at 579. Governing Law
The intent of the parties to be bound is an essential element of an enforceable agreement and is often a question of fact. John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 16 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); (citing Foreca, S.A. v. GRD Development Co., Inc., 758 S.W.2d 744, 746 (Tex. 1988)). However, where that intent is clear and unambiguous on the face of the agreement, it may be determined as a matter of law. ICO, Inc., 26 S.W.3d at 16 (citing Hardman v. Dault, 2 S.W.3d 378, 380 (Tex. App.-San Antonio 1999, no pet.)).
Furthermore, the general rule is that every person who has the capacity to enter into a contract is held to know what words were used in the contract, to know their meaning, and to understand their legal effect. Amouri v. Sw. Toyota, Inc., 20 S.W.3d 165, 169 (Tex. App.-Texarkana 2000, pet. denied). The consequence of this rule is that a party to a contract may not successfully claim that he believed the provisions of the contract were different from those plainly set out in the agreement or that he did not understand the meaning of the language used. Id. Therefore, if a party enters into a written contract with full opportunity to inform itself of its provisions, the party will not thereafter be permitted to avoid the agreement on the ground that it was mistaken as to, or ignorant of, its contents. See Estes v. Republic Nat. Bank of Dallas, 462 S.W.2d 273, 276 (Tex. 1970).
However, there is a long established and well known exception to this rule. See Amouri, 20 S.W.3d at 169. Where the execution of a contract is procured by fraud, misrepresentation, or concealment, such that there is no real assent to the agreement, assent may be negated and the binding nature of the contract avoided. Id.Trial Court's Refusal to Submit Question or Instruction on Nonagreement
In the instant case, Enbridge submitted its proposed Question 2 to the trial court, which read as follows:
Question No. 2
Did Enbridge Pipelines (East Texas) L.P. agree to the following two provisions contained in the Right of Way Agreement executed by Plaintiff Gilbert Wheeler, Inc. on October 27, 2007:
"lay the pipeline by using the boring method and without any excavation on said easement"
and
"By using the boring method in accordance with the terms of this agreement and in accordance with accepted industry standards and practice."
At the informal charge conference, the parties argued to the trial court concerning Enbridge's proposed Question 2 as follows:
Answer "Yes" or "No."
[Wheeler's Counsel]: Okay. Question No. 2 in the Defendant's charge. This is an improper question because it's asking the jury to determine whether there was an agreement as to part of the contract. As the Court knows, Enbridge has to have this right-of-way agreement, or it's committing a trespass just by having its pipeline on the property. So they can't -- they haven't sought to void the contract. What they want to do is get out of one term of the contract. That's improper. So we object to this question.
[Enbridge's Counsel]: Your Honor, that's absolutely not improper, and it forms the basis of our defenses that regard reclamation, whether there was a unilateral mistake on the part of . . . Enbridge and fraud [by]Gilbert Wheeler, Inc., whether there was a mutual mistake, or whether this was a scrivener's error.
We agree that there is a right-of-way agreement; however, we believe that the terms that are at issue in this suit regarding boring were erroneously placed in this contract, and there is an issue as to whether or not Enbridge ever agreed to those two terms.
[Wheeler's Counsel]: Well, the question should be a question on reformation of the contract, which is --
THE COURT: Question No. 2 is -- will not be submitted.
Instead, the trial court submitted the following question to the jury:
QUESTION NO. 8
Do you find by clear and convincing evidence that the "boring" provisions were included in the Right of Way Agreement because of fraud by Plaintiff that caused a unilateral mistake by Enbridge?
"Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.
In answering this question, you are instructed that fraud occurred if all of the following circumstances occurred:
1. Plaintiff
A. Made a false representation,
B. With knowledge of its falsity, and
C. With the intention that Enbridge would rely on the false representation in acting or deciding not to act: and
2. Enbridge
A. Did not know and had no means of knowing the real facts and
B. Relied to its detriment on the false representation.
Concealment of a material fact is fraud when -
A. A party fails to disclose a material fact within the knowledge of that party, and
B. The party knows that the other party is ignorant of the fact and does not have an equal opportunity to discover the truth, and
C. The party intends to induce the other party to take some action by failing to disclose the fact, and
D. The other party suffers an injury as a result of acting without knowledge of the undisclosed fact.
The jury answered "No." Analysis
ANSWER "Yes" or "No"
Based on our review of the record, with particular attention given to the written agreement, we conclude the trial court reasonably could have determined as a matter of law that, absent evidence of fraud, the written agreement accurately reflected parties' intentions to be bound by its express terms. But recognizing Enbridge's contentions, the trial court submitted in Question 8 the fraud and unilateral mistake issue proposed by Enbridge. We conclude that Question 8 properly submitted this disputed issue for the jury's determination. As a result of the trial court's submission of Question 8, Enbridge's proposed Question 2 was not reasonably necessary to enable the jury to render a proper verdict. Furthermore, even if the trial court erred in determining as a matter of law that, absent fraud, the written right of way agreement accurately reflected parties' intentions to be bound by its express terms, Enbridge was not harmed because the fraud issue was properly submitted by way of Question 8. See TEX. R. APP. P. 44.1(a)(1). Enbridge's eleventh issue is overruled.
In its proposed Charge Question No. 5, Enbridge requested a question on fraud. Question 8 appears to be based on Enbridge's proposed Charge Question No. 5, and Enbridge has not raised an issue on appeal regarding Question 8.
In its proposed Charge Question No. 6, Enbridge requested a question concerning whether the boring provisions were included as a result of the parties' mutual mistake. In its proposed Charge Question No. 7, Enbridge requested a question concerning whether the boring provisions were included as a result of a scrivener's error, which it withdrew at the informal charge conference. Such questions do not appear in the court's charge, and Enbridge has not raised any issue on appeal concerning the trial court's failure to include these questions.
ADMISSION OF WHEELER'S EXPERTS' TESTIMONIES
In its sixth issue on original submission, Enbridge argued that the trial court abused its discretion in failing to exclude the testimony of Wheeler's expert witnesses Gregory David and Lynwood Smelser because their testimonies were wholly based upon cost to restore damages, which were barred as a matter of law as the measure of recovery.Standard of Review and Governing Law
Enbridge instead argued that the only proper measure of damages in this case was diminution in fair market value and, because David and Smelser were not real estate appraisers or owners of the property in question, neither could opine regarding the diminution in fair market value. We need not consider the question of David's and Smelser's respective qualifications regarding the question of market value since, as Enbridge states in a footnote in its brief, neither expert offered an opinion concerning the property's fair market value.
We review a trial court's decision concerning the admissibility of expert testimony for abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
For an expert's testimony to be admissible, the expert witness must be qualified to testify about "scientific, technical, or other specialized knowledge," and the testimony must be relevant and based upon a reliable foundation. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010); Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). An expert's testimony is relevant when it assists the jury in determining an issue or in understanding other evidence. TEX. R. EVID. 702; Hughes, 306 S.W.3d at 234. But expert testimony based on an unreliable foundation or flawed methodology is unreliable and does not satisfy Rule 702's relevancy requirement. Hughes, 306 S.W.3d at 234; Robinson, 923 S.W.2d at 556-57.
Nonetheless, the erroneous admission of evidence requires reversal only if the error probably (though not necessarily) caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). The supreme court has recognized "the impossibility of prescribing a specific test" for harmless error review. Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008) (quoting McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992)). The standard "is more a matter of judgment than precise measurement." Armstrong, 145 S.W.3d at 144. Erroneously admitted expert testimony that is crucial to a key issue is likely harmful. State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (op. on reh'g). In our harm analysis, we examine the entire record and consider whether the erroneously admitted evidence was emphasized and whether it was calculated or inadvertent. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on reh'g); Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 236 (Tex. 2001). David's Testimony
Enbridge argued that David's testimony concerning Wheeler's damages was not relevant because it was based on the cost to restore measure of damages, which it argued was barred as a matter of law. The supreme court held that intrinsic value damages were available in conjunction with Wheeler's breach of contract cause of action. See Wheeler, 449 S.W.3d at 485. At trial, David testified concerning the cost to replace the lost trees. Specifically, he referenced the "depreciated replacement cost" approach and the "cost to cure" approach. This testimony is relevant because it is probative of the monetary component of intrinsic value damages. See Wilen v. Falkenstein, 191 S.W.3d 791, 799 (Tex. App.-Fort Worth 2006, pet. denied) (evidence of replacement cost of tree considered in upholding award for intrinsic value damages); see also Ortega v. Cheshier, No. 11-13-00002-CV, 2015 WL 581736, at *4 (Tex. App.-Eastland Jan. 29, 2015, no pet.) (mem. op.) (court considered Gregory David's testimony regarding cost to replace destroyed trees in upholding an award of intrinsic value damages); Withrow v. Armstrong, No. 10-05-00320-CV, 2006 WL 3317714, at *3-4 (Tex. App.-Waco Nov. 15, 2006, pet. denied (mem. op.) (landowner's testimony proved that tree had intrinsic value, while quotes he received regarding tree's replacement cost proved tree's monetary value, which furnished a range within which jury could exercise its discretion to award damages).
David described the "depreciated replacement cost" approach as the cost of moving in a large tree, but adjusting that cost based on factors such as tree health or size relative to what is being replaced. On the other hand, David described the "cost to cure" approach as the cost of planting smaller trees to reforest the property.
Moreover, in the trial court's charge question on intrinsic value damages, the court instructed the jury, in pertinent part, as follows: "In determining property's intrinsic value, you may consider . . . the cost of replacing the property . . . [and] the opinions of qualified experts . . . as to its value . . . ." Enbridge did not object to this instruction. As a result, the parties are bound by this statement of the law as submitted in the court's charge. See Funes v. Villatoro, 352 S.W.3d 200, 208 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (absent objection, parties are bound by statements of law contained in submitted jury charge, even if statements of law are erroneous).
We hold that the trial court did not abuse its discretion in overruling Enbridge's relevance objection to David's testimony. Smelser's Testimony
Similarly, Enbridge argued that Smelser's testimony was inadmissible because it was based on the incorrect cost to restore measure of damages. Among other things, Smelser testified concerning the value of the stream that was destroyed.
But even assuming arguendo that Smelser's testimony concerning the value of the stream was not admissible, Enbridge still must prove that the error was harmful. TEX. R. APP. P. 44.1(a)(1). As set forth previously, intrinsic value damages were available in conjunction with Wheeler's breach of contract cause of action. See Wheeler, 449 S.W.3d at 485. In determining intrinsic value damages, the court's charge instructed the jury to consider only "the intrinsic value, if any, of the trees that were destroyed." Unless the record demonstrates otherwise, we must presume the jury followed the instructions given in the court's charge. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 2003). There is no indication from the record that the jury failed to follow the trial court's instructions that it limit its consideration of intrinsic value to the trees destroyed. Therefore, we must presume that the jury did not consider Smelser's testimony concerning the value of the stream in its award of intrinsic value damages. As a result, based on our examination of the record, we hold that even if the admission of Smelser's testimony concerning the value of the stream was erroneous, it was harmless because it did not cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
Enbridge's sixth issue is overruled.
EXCLUSION OF ENBRIDGE'S EXPERTS' TESTIMONY
In its seventh issue on original submission, Enbridge argued that the trial court abused its discretion in excluding the rebuttal testimony of Dr. Gary Kronrad pertaining to Gregory David's testimony and excluding Daniel Plume's testimony because the grounds of the objection asserted by Wheeler were factually incorrect and were wholly unsupported by the record. Kronrad's Testimony
Enbridge made an offer of proof concerning Kronrad's testimony. In the offer of proof, Kronrad testified, in pertinent part, as follows:
Q. Dr. Kronrad, why do you disagree with [David's] report?
A. He values this piece of forestland with this concept of replacement value, and replacing it with trees that are not appropriate for the area, and then irrigating the area also. And quite frankly, being in forestry all my years, I've never heard of anything like this before, doing it anyplace except maybe in somebody's front yard.
Q. Did you see that he used some sort of schedule? Do you know what that schedule was called?
A. You mean, the one for ornamental trees?
Q. Yes, sir.
A. Yeah. It's what arborists - - city urban forestries used to use. They don't use it anymore, but it used to be used to value street trees.
Q. Was it ever called a "shade-tree evaluation method"?
A. No.
Q. And the use of the arborists to value trees in a forest, is that an appropriate way to do that?
A. No, sir.
Q. Do you believe it's proper to use smaller caliber trees than run the larger trees, if you were going to replace the trees on this area?
A. Well, if any forester was asked to revegetate that piece of forestland, then they would plant the seedlings.
Q. And did you see the amount of - - did you see the total compensation he would say that he was going to - - was going to be awarded to compensate the landowners in this replacement cost?
A. Yes, sir.
Q. It was around $800,000 for the - -
A. (Head nodding.)
Q. Now, this is 1.69 acres with - -
A. Yes, sir.
Q. Would that be economically feasible to do such a thing? You're an economist, can you explain to the Court what "economic feasibility" means?
A. Your Honor, when I calculated the - - what I called before, the SEV value, and I said that it was worth $7,341, and that's the value of that piece of land for growing a perpetual crop of pine trees. That's the revenue you'd receive from growing one crop after another, after subtracting the costs. But that's one crop after another forever on that piece of land.
This is why forestland in East Texas, true forestland, goes for anywhere between [$]1,800 with trees on it $1,800 to 3,000 an acre. In some areas, as you get closer to Houston, maybe $4,000 an acre. That's the value of that land for growing trees, with trees on it.
To say that the value is $800,000 is not appropriate for a piece of forestland. If you wanted to replace trees in downtown Dallas or Houston, and you wanted to engage in this procedure, bringing in trees and then irrigating them, maybe someplace land is worth that much, but certainly not - - certainly not on this piece of land, where it's just in the middle of a big forest.
And the most we'd like to do is compensate the landowners for the value of the trees that were lost. And if there wasn't a pipeline there, to replace them with seedlings. And if they were compensated this amount of money, it would certainly be fair to them, more than fair to them, to get that amount of money, given how I did the analysis, using the highest value in two years, and using the value for pines that have been expensive for - - or cheaper hardwoods.
The values that I used were very high, which would certainly show the land, ore gave to the landowners a high value for the land. The total land that I calculated for this 1.69 acres is $12,657 for the 1.69 acres.
Now, you could buy any land in - - any forestland in East Texas for that kind of value with trees on it. With big trees on it. The replacement cost method is not appropriate in a forest. And I've never seen it done before or talked about before.
. . . .
Q. Do you, Dr. Kronrad, do you believe that sentimental value is [an] appropriate measure in this case?
A. Well, I don't know how you value sentimental value. I've just been asked to calculate the value of the trees. I can't - - I can't comment on sentimental value.
In sum, Kronrad testified that the cost of restoring the trees on the property, a measure of damages supported by David's testimony, was not appropriate. He did not attack David's calculations under the cost to restore measure or suggest that such calculations were unreasonable under that measure. Rather, Kronrad suggested that planting seedlings of tree types typically found in the region to replace the various species of older trees that were destroyed was the appropriate method to measure damages.
As set forth previously, David's testimony concerning the cost to replace the lost trees is probative of the monetary component of intrinsic value damages. See Falkenstein, 191 S.W.3d at 799. The question of the proper measure used to determine the amount of damages is a question of law for the trial court. See Garza de Escabedo v. Haygood, 283 S.W.3d 3, 6 (Tex. App.-Tyler 2009), aff'd, 356 S.W.3d 390 (Tex. 2011). Thus, we conclude that the trial court did not err in declining to admit Kronrad's testimony concerning what measure of damages was appropriate. See id.
Furthermore, the jury was instructed that "intrinsic value" is an "inherent value not established by market forces" and a "personal or sentimental value." The jury also was instructed that it could consider in determining intrinsic value damages, among other things, the "cost of replacing the property" and "its condition at the time of the loss[.]" Because Enbridge did not object to this instruction, the parties are bound by this statement of the law as submitted in the court's charge. See Funes, 352 S.W.3d at 208. Thus, assuming arguendo the trial court's failure to admit this testimony was erroneous, it was harmless because the testimony was not relevant to the jury's consideration of the measure of damages as set forth in the court's charge. Plume's Testimony
Enbridge also made an offer of proof concerning Plume's testimony. In the offer of proof, Plume testified that it is impossible to "bore" without excavating. Plume further testified that it was possible to engage in "directional drilling" without excavating. Plume acknowledged that the terms "directional boring" and "directional drilling" often are used interchangeably. Plume further acknowledged that the parties' agreement set forth that the "pipeline will be installed by the boring method without any excavation . . . on the easement[.]"
Based on our review of the record, Enbridge did not ask the trial court to submit a charge question to the jury concerning whether the agreement contained an ambiguity concerning the term "boring." Moreover, Enbridge did not request a charge question concerning impossibility or impracticability. Thus, we conclude that Enbridge was not harmed by the exclusion of Plume's testimony concerning ambiguity of the term "boring" or his testimony that boring without excavation could not be achieved. See TEX. R. APP. P. 44.1(a)(1).
Our reading of the contract does not indicate that the parties intended for the term "boring method" to take on a meaning other than its ordinary meaning. See Birnbaum v.Swepi LP, 48 S.W.3d 254, 257 (Tex. App.-San Antonio 2001, pet. denied) (in interpreting contract, we give terms their plain, ordinary, and generally accepted meaning unless instrument shows that parties used such terms in technical or different sense); see also THE AMERICAN HERITAGE DICTIONARY 198 (2nd College Ed. 1982). (to "bore" means "[t]o make a hole in or through, as with a drill" or "[t]o form (a tunnel, for example) by drilling, digging, or burrowing"). Moreover, in interpreting a contract, we must presume that parties intended every clause to have some effect; therefore, we consider each part of the document with every other part of the document so that the effect and meaning of one part on any other part may be determined. See Birnbaum, 48 S.W.3d at 257. In this case, the agreement plainly set forth that the "Grantee agrees to lay the pipeline by using the boring method and without any excavation on [the] easement." (emphasis added). We conclude that the agreement explicitly forbade excavation and that the common meaning of the term "boring" can readily be harmonized with this language. Therefore, the court properly construed the agreement as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). --------
Enbridge's seventh issue is overruled.
DISPOSITION
Having overruled Enbridge's sixth, seventh, and eleventh issues, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice Opinion delivered November 16, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 273rd District Court of Shelby County, Texas (Tr.Ct.No. 07CV29,883)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, ENBRIDGE PIPELINES (EAST TEXAS) L.P., for which execution may issue, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.