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affirming damages award for poisoned cypress tree
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No. 10-05-00320-CV
Opinion delivered and filed November 15, 2006.
Appeal fromthe 13th District Court, Navarro County, Texas, Trial Court No. 02-00-11852-CV.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissents without a separate opinion)
MEMORANDUM OPINION
This is a trespass case in which Patricia Withrow contends that: (1) the evidence is legally and factually insufficient to support the verdict; and (2) the court erred by admitting certain testimony, excluding certain testimony, submitting the issue of exemplary damages to the jury, and denying Withrow's motion for new trial. We affirm.
SUFFICIENCY OF THE EVIDENCE
In her first and second issues, Withrow challenges the legal and factual sufficiency of the evidence, claiming the court erred by submitting the issue of trespass to the jury, and denying both her motions for directed verdict and for judgment notwithstanding the verdict.
Standards of Review
Legal sufficiency requires consideration of "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id.
A factual sufficiency challenge to an issue on which the appellant did not have the burden of proof requires us to "consider and weigh all of the evidence, not just the evidence that supports the verdict." Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). We cannot "pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result." Id. "We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust." Id. We will reverse where the "finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof." Id.
Trespass
A person commits trespass by (1) entering another's property without consent; or (2) "causing or permitting a thing to cross the boundary of the premises." City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex.App.-Fort Worth 1994, writ dism'd w.o.j.); see General Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.); see also Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex.App.-Fort Worth 2006, pet. denied). "Every unauthorized entry is a trespass 'even if no damage is done.'" General Mills Rest., 12 S.W.3d at 833. "A trespass may be committed on, beneath, or above the surface of the earth." City of Arlington, 873 S.W.2d at 769.
According to the evidence, Mike Armstrong, Debbie Armstrong, and Jimmy Wolver observed Withrow drilling holes into the roots of Armstrong's cypress tree. Wearing gloves and either eye glasses or goggles, Withrow used an eyedropper from a brown bottle to drop liquid into the roots. Approximately twelve days later, the tree began turning brown and died within three months. The grass surrounding the drilled holes also turned brown. The three witnesses were uncertain as to what killed the tree.
Armstrong testified that the cypress tree remains bright green during the respective time period. Although Withrow admitted performing these acts, she profusely denied poisoning the tree. She testified to using water for the purpose of loosening the roots. She also testified that one year later, foliage still grew on the tree. Photographs document Withrow's conduct, the drilled holes, and the tree's decline.
First, this evidence supports trespass. The roots into which Withrow drilled extended onto her property from Armstrong's property. By dropping the liquid into the roots, Withrow caused the liquid to cross Armstrong's boundary line beneath the "surface of the earth." City of Arlington, 873 S.W.2d at 769. Withrow acted without Armstrong's consent. See General Mills Rest., 12 S.W.3d at 833. The jury could reasonably conclude that Withrow trespassed onto Armstrong's property by "causing or permitting a thing to cross the boundary of the premises." City of Arlington, 873 S.W.2d at 769; City of Keller, 168 S.W.3d at 827.
Second, the evidence supports poisoning of the tree. The jury is the "sole judge of the credibility" and weight of witness testimony. Trinity Indus. v. Ashland, Inc., 53 S.W.3d 852, 862 (Tex.App.-Austin 2001, pet. denied); see Leyva v. Pacheco, 358 S.W.2d 547, 549 (Tex. 1962). As such, the jury was free to reject Withrow's testimony that she only dropped water into the roots and accept the witnesses' testimony to lack of knowledge as to what poison killed the tree, not whether any poison killed the tree. See id. In light of the eyewitness testimony and photographs depicting the tree's significant deterioration and death shortly after the incident, the jury could reasonably conclude that: (1) Withrow dropped poison, not water, into the roots in order to contaminate the tree; and (2) Withrow's conduct caused the tree's death. See City of Keller, 168 S.W.3d at 827.
We, therefore, hold that the jury's verdict is not "based on weak or insufficient evidence" nor overwhelmed by "contrary proof." Checker Bag, 27 S.W.3d at 633. Rather, the evidence is both legally and factually sufficient to support the jury's verdict. See id; see also City of Keller, 168 S.W.3d at 827. We overrule Withrow's first and second issues.
DAMAGES
In her third issue, Withrow contends that no evidence exists to support the jury's damages award of $5,000 because the only evidence of the tree's value constitutes hearsay.
Whether to admit or exclude evidence rests within the trial court's sound discretion and is reviewed for abuse of discretion. See In the Interest of J.B., 93 S.W.3d 609, 617 (Tex.App.-Waco 2002, pet. denied); see also Texas DOT v. Able, 35 S.W.3d 608, 617 (Tex. 2000). An owner may testify regarding the intrinsic value of trees. See Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984); Wilen, 191 S.W.3d at 799-800. Intrinsic value is an "inherent value not established by market forces; it is a personal or sentimental value." Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex.App.-Houston [14th Dist.] 1992, no writ). For example, where "a defendant's cutting down shade or ornamental trees does not reduce the market value of the property," courts may award damages for the trees' intrinsic value. Porras, 675 S.W.2d at 506.
Although the amount of damages to be awarded based on intrinsic value rests within the jury's discretion, the property owner must "furnish a range within which a jury could exercise its discretion." See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566-67 (Tex. 2002). A party may testify, based on his personal knowledge if he has performed his own research, as to the cost or value of his property. See Kundak, 843 S.W.2d at 298; Coker v. Burghardt, 833 S.W.2d 306, 309-10 (Tex.App.-Dallas 1992, writ denied).
Armstrong contacted tree farms and received quotes for replacement value in the amounts of $14,884.38 and $16,161.72. He also received a $1,000 estimate for the cost of removing the tree. The pertinent testimony and objections are as follows:
Q. Okay. What did the estimate from Pineda's Nursery come up to?
DEFENSE COUNSEL: Objection to hearsay.
COURT: I overrule the objection.
A. $14,884.38.
Q. What did the objection [sic] from WW Tree Farm, the lady in Dallas come out?
DEFENSE COUNSEL: Object to hearsay.
COURT: I overrule the objection.
A. 14,930 — no, I'm sorry. $16,161.72
. . .
Q. Okay. Did you also do investigation with regard to how much it would cost to get the tree ready to be replaced, that is, to cut it down and haul it off?
A. Yes, I did.
Q. And who did you talk to about that, or what did you find out about that?
A. I talked to Mark Harrison who does a tree service and he gave me a bid.
Q. And how much was that?
A. A thousand dollars.
Q. Okay.
A. That was to remove the tree and stump, to grind the stump up and get it out.
In Kundak, the Houston Court addressed a similar complaint:
In point seven, Star argues that the trial court erred in admitting the testimony of Mrs. Kundak regarding damages for the loss of use of the Mercedes. Without this testimony, there was no evidence to support the damage award. Mrs. Kundak testified, "We are asking for 18 months that it was in the shop, times a $500 figure, which was based on the fact that we called to find out what it would cost us to lease." The trial court admitted this testimony over Star's hearsay objection.
We first observe that Kundak's testimony was not technically hearsay. As Ray explains:
If the witness states that of his own knowledge he heard X make a certain assertion and this is offered to prove the truth of the assertion, the testimony is hearsay. If, on the other hand, the witness states that a certain fact is true but in some manner discloses that his statement is founded on information received from X, the proper objection in strictness is not hearsay but a want of testimonial qualification of personal knowledge on the part of the witness . . .
1A ROY R. RAY, LAW OF EVIDENCE § 793 (Texas Practice 1980).
Ray goes on to say that the cases generally treat both types of evidence as hearsay. Id. Here, however, the distinction is useful in analyzing Star's challenge to Kundak's testimony.
Kundak did not offer a declarant's out-of-court statement for the truth of the matter asserted. See TEX. R. CIV. EVID. 801(d). She was not simply relaying information. Rather, her testimony amounted to an opinion of the market value of the use of her car for one month, including a basis for her personal knowledge, i.e., the research she performed by telephone. That basis could have been challenged by a critical cross-examination of her sources and evaluative skills. It was not.
See Kundak, 843 S.W.2d at 298.
Because the complained-of testimony is not technically hearsay, the court did not abuse its discretion by overruling hearsay objections. See id.
Armstrong sought the intrinsic value of the tree, not the reduction in market value of his property. As owner of the tree, Armstrong could testify to the tree's intrinsic value. See Kundak, 843 S.W.2d at 298; see also Porras, 675 S.W.2d at 506; Wilen, 191 S.W.3d at 799-800. He testified that the tree was ornamental, provided shade and was one of two matching cypress trees located on his property. The two quotes that Armstrong received are evidence of the tree's monetary value, and that evidence furnishes a range within which the jury could exercise its discretion to award damages. See Low, 79 S.W.3d at 566-67; see also Kundak, 843 S.W.2d at 298. We overrule Withrow's third issue.
EXEMPLARY DAMAGES
Withrow complains, in her fourth issue, that no evidence exists to support the court's submission of the issue of exemplary damages to the jury.
A court's submission of jury questions is reviewed for abuse of discretion. See In the Interest of V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). Questions must be submitted to the jury if "raised by the written pleadings and the evidence." See TEX. R. CIV. P. 278. Under the law applicable to this case, exemplary damages for trespass are warranted if malice is established by clear and convincing evidence. See Act of April 20, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 110 (amended 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 41.003(a)(2) (Vernon Supp. 2006)). Malice may be shown by direct or circumstantial evidence and constitutes a "specific intent by the defendant to cause substantial injury to the claimant." See Act of April 20, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 109 (amended 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 41.001(7) (Vernon Supp. 2006)); see also St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 506 (Tex. 1997); J.C. Penney Co., Inc. v. Ruth, 982 S.W.2d 586, 590 (Tex.App.-Texarkana 1998, no pet.).
Under the clear and convincing standard, "we view all the evidence in the light most favorable to the finding, taking into account contrary undisputed facts, to determine whether reasonable jurors could have formed a firm belief or conviction regarding malice." Wilen v. Falkenstein, 191 S.W.3d 791, 800 (Tex.App.-Fort Worth 2006, pet. denied).
Malice was also defined as an "act or omission" (i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. See Act of April 20, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Gen. Laws 108, 109 (amended 2003) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 41.001(7) (Vernon Supp. 2006)); see also St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 506 (Tex. 1997).
As previously discussed, the evidence is both legally and factually sufficient to support the conclusions that Withrow trespassed, poisoned the tree and, thus, caused the tree's death. See City of Arlington, 873 S.W.2d at 769; see also Washington, 27 S.W.3d at 633; City of Keller, 168 S.W.3d at 827. However, the evidence is also sufficient to support a finding that Withrow acted with malice. According to the evidence, an apparent disdain exists between Withrow and Armstrong. Withrow complained to police about Armstrong's vehicles parked in the wrong direction and blocking her mailbox. Footballs from Armstrong's property landed in Withrow's shrubs. Even the cypress tree cause problems for Withrow, as its roots threatened the foundation of her home.
One such complaint occurred the day before the poisoning of the tree.
This reason served as the basis for Withrow's claim that she injected water into the tree's roots for the purpose of loosening them.
The record clearly supports the conclusion that Withrow disliked Armstrong and inserted the poison into the tree's roots with the specific intent of damaging the tree in order to cause substantial injury to Armstrong. See Tex. Civ. Prac. Rem. Code Ann. § 41.001; see also TEX. R. CIV. P. 278. Withrow's conduct was certainly not designed to promote some good purpose, but was initiated with "complete disregard" for Armstrong's property rights and with the intent of damaging her neighbor's property. See Wilen, 191 S.W.3d at 800. The only reasonable conclusion that can be derived from such conduct is that substantial injury was intended. Therefore, the pleadings and the evidence raise the issue of malice; the court did not abuse its discretion by submitting exemplary damages to the jury. V.L.K., 24 S.W.3d at 341. Withrow's fourth issue is overruled.
MOTION FOR NEW TRIAL
In her fifth issue, Withrow contends that the court should have granted a new trial based on juror misconduct because one of the jurors failed to truthfully answer voir dire questions. We first address Armstrong's response that Withrow's failure to attach juror affidavits to her motion for new trial results in a failure to preserve error.
Preservation
Juror affidavits must be attached to a motion for new trial alleging juror misconduct. See Pabich v. Kellar, 71 S.W.3d 500, 510 (Tex.App.-Fort Worth 2002, pet denied); see also TEX. R. CIV. P. 327(a). Although Withrow attached no juror affidavits to her motion, the court heard the motion. The record established at this hearing served as a basis upon which the court could determine the motion; thus, Withrow's failure to attach juror affidavits does not affect this appeal. See TEX. R. CIV. P. 327(a). By filing her motion for new trial alleging juror misconduct, Withrow preserved her complaint for appellate review. See Tex. R. Civ. P. 324(b)(1).
Denial of Motion for New Trial
A party complaining of jury misconduct must show that (1) misconduct occurred; (2) it was material; and (3) based on the record as a whole, the misconduct resulted in harm. Pabich, 71 S.W.3d at 510; see TEX. R. CIV. P. 327(a). To establish misconduct on "grounds that the venire person concealed information during voir dire, a person must obtain proof of concealment from a source other than jury deliberations." Kiefer v. Cont'l Airlines, Inc., 10 S.W.3d 34, 40 (Tex.App.-Houston [14th Dist.] 1999, pet denied). A "venire person's failure to disclose information about which she had no knowledge or had forgotten at the time of voir dire does not constitute concealment." Id. A court's denial of a motion for new trial is reviewed for abuse of discretion. See Pabich, 71 S.W.3d at 510.
During voir dire, the panel was asked whether they knew Withrow. Juror Ray Jacobs did not respond affirmatively. Withrow later filed a motion for new trial alleging that Jacobs did know Withrow. At the hearing on Withrow's motion, Jacobs testified that he heard about Withrow's political involvement, but denied communicating this information to the other jurors. Juror Lou Ann Allen testified off the record in the court's chambers. The court's findings outline Allen's testimony as follows: (1) after deliberations, but before the jury returned its verdict, Jacobs mentioned that he heard Withrow was a political activist; (2) Allen may have presumed an acquaintance between Jacobs and Withrow, although nothing was said to establish such an acquaintance; (3) Allen may have given Withrow's attorney a false impression that Jacobs indicated an acquaintance with Withrow; and (4) Jacobs made no statements during deliberations based on his personal knowledge of Withrow. Finding no misconduct, the court ruled that any statements made occurred after deliberations and no evidence existed to support an acquaintance between Withrow and Jacobs.
Withrow alleges that Jacobs provided an "erroneous or incorrect answer on voir dire examination." TEX. R. CIV. P. 327(a). Although Jacobs may have heard about Withrow's political activities, this does not establish that he either knew Withrow personally or answered voir dire questions without complete candor. See Kiefer, 10 S.W.3d at 40. Whether Jacobs later obtained some knowledge regarding Withrow or later remembered information about Withrow neither makes his voir dire answers untrue nor rises to the level of juror misconduct. See id. Therefore, Withrow has failed to show that the record contains any evidence of material misconduct resulting in harm. See Pabich, 71 S.W.3d at 510; see TEX. R. CIV. P. 327(a). The court did not abuse its discretion by denying Withrow's motion for new trial. See id.
EXCLUSION OF TESTIMONY AND EVIDENCE
Withrow's sixth issue challenges the court's exclusion of certain testimony and photographic evidence. We review a court's exclusion of evidence under an abuse of discretion standard and will reverse the judgment only if the "complaining party demonstrates that the error probably caused the rendition of an improper judgment." Rosas v. Hatz, 147 S.W.3d 560, 563 (Tex.App.-Waco 2004, no pet.).
First, the court excluded several photographs of other browning trees in the area. "Admissibility of a photograph is conditioned upon its identification by a witness as an accurate portrayal of the facts, and on verification by that witness or a person with knowledge that the photograph is a correct representation of such facts." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314-15 (Tex. 1987); see Dunn v. Bank-Tec South, 134 S.W.3d 315, 329 (Tex.App.-Amarillo 2003, no pet.); see also TEX. R. EVID. 901. Withrow argues that the photographs show that other trees are suffering similar problems as Armstrong's tree. However, Withrow lacks the personal knowledge necessary to verify that these photographs truly represent a similar problem plaguing both Armstrong's tree and other trees in the area. See Davidson, 737 S.W.2d at 314-15; see also Dunn, 134 S.W.3d at 329. That these trees and Armstrong's tree both turned brown and so might suffer from the same ailment is nothing more than mere speculation. Because of their speculative nature, these photographs would serve no other purpose than to confuse the issues; the court did not abuse its discretion by excluding these photographs. See Rosas, 147 S.W.3d at 563; see also TEX. R. EVID. 403.
Second, the court excluded photographs depicting (1) Armstrong standing with the water hose; (2) a string dividing Armstrong and Withrow's properties; (3) Armstrong's son stepping over the string as he turned to mow the grass; (4) Armstrong's vehicles parked in front of Withrow's home; and (5) the border between the parties' properties. Withrow claims these photographs address Armstrong's "demeanor and credibility." The court also excluded Armstrong's testimony regarding the "acrimonious relationship" of Armstrong towards Withrow.
Only relevant evidence is admissible. See TEX. R. EVID. 402. However, even relevant evidence must be excluded if its probative value is substantially outweighed by "needless presentation of cumulative evidence." See TEX. R. EVID. 403. The photographs Withrow sought to admit depict events occurring after the poisoning and so were not relevant to any issue on the case. See id. Furthermore, testimony admitted at trial is virtually identical to that excluded, enabling the jury to reasonably infer any "acrimonious" relationship existing between the parties and determine Armstrong's "demeanor and credibility." Because similar testimony was introduced from both Armstrong and Withrow throughout the trial, the court did not abuse its discretion by excluding the photographs and repetitious testimony regarding the parties' relationship. See Ordonez v. M.W. McCurdy Co., 984 S.W.2d 264, 274 (Tex.App.-Houston [1st Dist.] 1998, no pet.); see also Welch v. McLean, 191 S.W.3d 147, 165 (Tex.App.-Fort Worth 2005, no pet.); Rosas, 147 S.W.3d at 563.
Withrow has also failed to show how the court's exclusion of evidence "probably caused the rendition of an improper judgment." Rosas, 147 S.W.3d at 563. We overrule her sixth issue.
Having overruled each of Withrow's six issues, we affirm the judgment.