Storm Reconstruction Services, Inc. v. Mark T. Eddingston ( 2014 )

Opinion issued August 29, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00533-CV
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STORM RECONSTRUCTION SERVICES, INC., Appellant
V.
MARK T. EDDINGSTON, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Case No. 25941
MEMORANDUM OPINION
Storm Reconstruction Services, Inc. (“SRS”) appeals the judgment
following a bench trial rendered in favor of appellee, Mark T. Eddingston, in his
suit for trespass to real property. In three issues, SRS contends that the trial court
erred because (1) SRS was privileged or lawfully authorized to enter Eddingston’s
property; (2) SRS is not liable for trespass in the absence of willful misconduct,
gross negligence, or bad faith; and (3) the evidence presented at trial does not
support the trial court’s judgment. We affirm.
Background
On October 12, 2010, Eddingston sued SRS for trespass to real property.
Following a bench trial, the court found in favor of Eddingston and awarded him
$23,973.33 in compensatory damages and $2,493.22 in prejudgment interest.
1. Eddingston’s Testimony
Eddingston testified as to his ownership of his 335 acres of land in
Chambers County that he uses for grazing, recreation, hunting, and fishing on the
bayou abutting the property. He also occasionally leased it to rice farmers.
On January 13, 2010, he discovered that a heavy piece of equipment had
entered his property, knocked down a fence, collapsed two culverts, and created
deep ruts in the surface of the road. There were trackhoe marks near the downed
fence and on the damaged road. He contacted the Trinity Bay Conservation
District regarding the damage and was told to call Bob Jones with SRS and
Tommy Webster with Beck Disaster Recovery (“BDR”). 1
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BDR, a monitoring firm for the Texas Department of Transportation (“TxDoT”),
was responsible for monitoring SRS’s post-Hurricane Ike debris removal,
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Eddingston testified that Webster told him that he would go see the damage
and “was going to get with SRS and have them go back down there.” Eddingston
understood this to mean that SRS was the responsible party and SRS would repair
the road. When Eddingston later spoke with Jerry Hicks, the SRS employee sent
to make the repairs, Hicks initially stated that there had only been one red five-ton
crawler on Eddingston’s property but when told that his game camera had
photographed a yellow trackhoe on the property sometime in January or February
2010, Hicks acknowledged that there may have been a yellow crawler on the
property as well. Eddingston testified that he never consented to SRS or any of its
employees to enter his property.
Although SRS attempted to repair the damaged road on at least two
occasions, it remained impassable due to the ruts and standing water. After
receiving no further response from SRS regarding repairs, Eddingston hired Keith
Burkart to repair the road and the collapsed culverts.
2. Keith Burkart’s Testimony
Eddingston hired Burkart’s company, CK Backhoe Service, in March 2010, to
repair the damage to his road and culverts. Burkart testified that he believed a
heavy load had broken the culverts and “blown out” the road, causing one side of it
to be level with the bottom of the ditch. Burkart reshaped and repaired the road
quantifying the material removed, and then reporting to TxDoT which then paid
SRS for the work performed.
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with crushed rock and installed new culverts which, Burkart testified, were
necessary to return Eddingston’s property to its former condition.
3. Wayne McKey’s Testimony
McKey, a general engineering technician with TxDoT who worked with SRS
following Hurricanes Rita and Ike, testified that after BDR, TxDoT’s monitoring
firm, reported the quantities of Hurricane Ike debris removed by SRS, he would
pay SRS based on that information. After McKey became aware of Eddingston’s
reported property damage, he accompanied Webster, BDR’s project lead, and
Hicks to witness the second repair attempt by SRS. He testified that the repairs
included levelling and smoothing the road and filling the ruts with dirt. McKey
testified that his role was not to approve the repairs but simply to confirm that they
had been made. He noted that he had not personally received permission from
Eddingston to enter his property but that it was BDR’s responsibility to identify
property owners and obtain rights of entry.
4. Mark Garrison’s Testimony
Garrison, SRS’s Vice President of Operations during the time period relevant
to this suit, testified that SRS had eight trackhoes working on the bayou near
Eddingston’s property. He acknowledged that the two trackhoes shown in the
game camera photos looked like equipment that belonged to SRS and that, to his
knowledge, they were on Eddingston’s property. He also acknowledged that
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photos of the downed fence showed trackhoe tracks. Garrison claimed that SRS
was possessed of a “blanket right of entry that was signed by Judge Sylvia that
covered any emergencies or any situations where they couldn’t find a landowner or
anything like that.” He testified that SRS worked at the direction of BDR, and that
BDR was responsible for obtaining licenses, permits, and rights of entry.
5. Jerry Hicks’s Testimony
Hicks, a foreman for SRS in 2009 and 2010, testified that he spoke with
Eddingston about the damage to his road but denied admitting to Eddingston that
SRS had caused the damage.
Standard of Review
When, as here, a party appealing from a non-jury trial does not request
findings of fact and conclusions of law, the appellate court presumes the trial court
found all fact questions in support of its judgment, and the reviewing court must
affirm the judgment on any legal theory finding support in the pleadings and
evidence. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.
1987); George v. Jeppeson, 238 S.W.3d 463, 468–69 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). In a bench trial, it is for the court, as trier of fact, to judge the
witnesses, to assign the weight to be given their testimony, and to resolve any
conflicts or inconsistencies in the testimony. Shaw v. Cnty. of Dallas, 251 S.W.3d
165, 169 (Tex. App.—Dallas 2008, pet. denied). Further, we consider only the
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evidence most favorable to the implied factual findings and disregard all opposing
or contradictory evidence. See Franklin v. Donoho, 774 S.W.2d 308, 311 (Tex.
App.—Austin 1989, no writ).
Discussion
SRS’s first issue contends that it is not liable for trespass because it was
privileged, or had lawful authority, to enter onto Eddingston’s property. In its
second issue, SRS argues that it is not liable for trespass in the absence of evidence
demonstrating willful misconduct, gross negligence, or bad faith. Eddingston
asserts that SRS adduced no evidence at trial to support either argument.
SRS first asserts that “a person is privileged to enter onto another’s land
when such action appears reasonably necessary to prevent serious harm to the
actor, the owner of the land, or a third person, or to the real or personal property of
any such person.” SRS fails to provide this Court with citation to the record
supporting its argument that its entry onto Eddingston’s land in January 2010 was
reasonably necessary to prevent serious harm to a person or to property. Its
argument that it acted under lawful authority is equally unavailing in that the
record reveals no evidence showing that SRS entered onto Eddingston’s land
pursuant to any lawful authority. See TEX. R. APP. P. 38.1(i). Indeed, Eddingston’s
testimony was that he never gave permission for SRS or any of its employees to
enter his property. Although Garrison testified that another judge had signed a
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“blanket right of entry . . . covering any emergencies or situations where they
couldn’t find a landowner,” SRS offered no evidence of this document or its
applicability to Eddingston.
SRS next contends that it is not liable for the damage to Eddingston’s
property absent a showing of willful misconduct, gross negligence, or bad faith and
SRS cites to Texas Government Code section 418.023, which provides, in relevant
part:
(a) Through the use of any state agency or instrumentality, the
governor, acting through members of the Emergency Management
Council, may clear or remove debris or wreckage from public or
private land or water if it threatens public health or safety or public
or private property in a state of disaster declared by the governor or
major disaster declared by the president of the United States.
....
(d) If the governor provides for clearance of debris or wreckage under
this chapter, state employees or other individuals acting by authority
of the governor may enter on private land or water to perform tasks
necessary to the removal or clearance operation. Except in cases of
wilful misconduct, gross negligence, or bad faith, a state employee or
agent performing his duties while complying with orders of the
governor issued under this chapter is not liable for the death of or
injury to a person or for damage to property.
TEX. GOV’T CODE ANN. § 418.023(a), (d) (West 2012). A review of the record,
however, reveals no evidence demonstrating that a disaster declaration or state of
emergency existed by appropriate executive order or that SRS was acting pursuant
to such authority fifteen to sixteen months after Hurricane Ike came ashore. We
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find SRS’s argument based on section 418.023(d) unavailing. SRS’s first and
second issues are overruled.
SRS’s third issue contends that the trial court’s finding that it committed
trespass is unsupported by the evidence.
Trespass occurs when a person enters another’s land without consent.
Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd., 343 S.W.3d 875, 882 (Tex.
App.—El Paso 2011, no pet.); Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex.
App.—Fort Worth 2006, pet. denied). A plaintiff must prove that (1) he owns or
has a lawful right to possess real property, (2) the defendant entered the land and
the entry was physical, intentional, and voluntary, and (3) the defendant’s trespass
caused injury. Pharaoh Oil & Gas, Inc., 343 S.W.3d at 882; Wilen, 191 S.W.3d at
798.
Eddingston argues that the evidence is sufficient to support all of the
elements necessary to establish a trespass to real property.
With regard to the first element, it is undisputed that Eddingston owned the
property in question. As to the second element, Hicks, an SRS foreman, admitted
to Eddingston that two of SRS’s trackhoes had entered onto Eddingston’s property.
Garrison, SRS’s former Vice President of Operations, testified that the trackhoes
shown in Plaintiff’s Exhibits 3 and 4 looked like equipment that belonged to SRS,
and that Plaintiff’s Exhibits 6 through 8 showed trackhoe marks next to the
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downed fence. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827
(Tex. 1997) (concluding that intent relevant to trespass action is only defendant’s
intent to enter property; motive is irrelevant). This evidence is sufficient to support
an implied finding that SRS’s entry onto Eddingston’s property was physical,
intentional, and voluntary.
As to the third element, to make the road passable again and to restore
drainage, the roadway had to be repaired and the broken culverts replaced.
Eddingston paid Burkart $23,973.33 to restore his property to its former condition.
See Vaughn v. Drennon, 372 S.W.3d 726, 738 (Tex. App.—Tyler 2012, no pet.)
(noting measure of damages for trespass to real property is ordinarily cost and
expense of restoring land to its former condition, plus loss or damages occasioned
by being deprived of use of same, with interest). This evidence is sufficient to
support the trial court’s implied finding that SRS’s entry caused damage to
Eddingston’s property.
Considering only the evidence most favorable to the implied factual findings
and disregarding all opposing or contradictory evidence, we conclude that there
was sufficient evidence to support the trial court’s conclusion that SRS trespassed
onto Eddingston’s property. We overrule SRS’s third issue.2
2
In its reply brief, SRS argues that the evidence does not support the damages
awarded in the judgment. However, we decline to address this argument because
SRS cannot raise new issues for the first time on appeal in its reply brief. See
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Judgment
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Crowder v. Scheirman, 186 S.W.3d 116, 119 fn.1 (Tex. App.—Houston [1st Dist.]
2005, no pet.); Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied).
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