Dallas Bar Association
HEADNOTES
Focus Real Property/Construction Law
April 2015 Volume 40 Number 4
Magna Carta: Symbol of Freedom Under Law Keynote Speaker Justice Eva Guzman
to preside over the 309th Family Court in Harris County. In 2001, she was appointed to the Houston-based Fourteenth Court of Appeals, which serves a ten-county area. Justice Guzby Eugenie Robichaux Rogers man was appointed to the Supreme Court of Perhaps the first document embodying the Texas in 2009 and subsequently elected to a concept of the rule of law, Magna Carta occu- full term of service in 2010, making her the pies a unique place in history as the starting first Hispanic woman elected to state-wide point and inspiration for many indispensable office in Texas. In over a decade of service as rights, including due process, habeas corpus an appellate judge, she has ruled on over 2,000 and trial by jury. Its most famous civil and criminal appeals and has provision proclaims: “No free authored hundreds of published man shall be seized or imprisoned, opinions. or stripped of his rights or posJustice Guzman is deeply sessions . . . except by the lawful committed to the principles of judgment of his equals or by the freedom under law that will be law of the land.” Since the sealthe topic of this year’s Law Day. ing of Magna Carta in 1215, its She serves as the Texas Supreme principles have been considered Court’s liaison to the Commisamong the most important guarsion on Judicial Conduct, the antees of freedom and equality. Texas Access to Justice FoundaThese principles have tration and the Texas Access to Jusversed continents, generations tice Commission. She also serves and civilizations as an inspiraas Chair of the Supreme Court’s tion for democracy. Across the Permanent Judicial Commission Atlantic, Magna Carta’s concepts Honorable Eva Guzman for Children, Youth and Famiwere further refined and explored by many of lies. Justice Guzman is a member of the Board this country’s most important political think- of Trustees for The Center for American and ers and leaders, including Thomas Paine, Ben- International Law and a member of the Board jamin Franklin and Thomas Jefferson. Their of Trustees of her alma mater, South Texas ideas, inspired by Magna Carta, ultimately were College of Law. In 2014, Justice Guzman was memorialized in the formative documents of honored by South Texas College of Law with American government. In 1948, Eleanor Roo- its Alumni Impact Award. Justice Guzman also sevelt introduced the Universal Declaration serves on the Board of Visitors of Duke Uniof Human Rights as “the international Magna versity School of Law. She has been an elected Carta of all men everywhere” when speaking member of the American Law Institute since to the United Nations Assembly. Nelson Man- 2005 and has served as adjunct faculty at the dela, in his famous Statement from the Dock University of Houston Law Center and the in the Rivonia trial of 1964, identified Magna American Bar Association Family Law Trial Carta as a seminal document inspiring his Advocacy Institute. beliefs in the ideals of a democratic, free society. Justice Guzman has been recognized by As we mark the 800th anniversary of Magna numerous organizations for her devotion to the Carta, the Dallas Bar Association invites you to law and her achievement in the profession. In participate in Law Day, May 1, 2015, celebrat- 2014, she received both the Women and the ing this year’s theme—“Magna Carta: Symbol Law Section of the State Bar of Texas Sara T. of Freedom Under Law.” The words of the Law Hughes Lawyers of Achievement Award and Day theme are drawn from the inscription on the Association of Women Attorneys’ “Prethe Magna Carta Memorial at Runnymede, mier Women in the Law Modern Trailblazer” which the ABA erected in 1957. Please join us award. The National Hispanic Bar Association to commemorate the “Great Charter of Liber- honored Justice Guzman with its Latina Judge ties” and reflect on our great heritage of liberty, of the Year Award in 2009. justice and equality under law. Justice Guzman is honored to be a part of the This year, the Dallas Bar Association will DBA’s celebration of Law Day. The luncheon continue its tradition of celebrating Law Day begins at noon on Friday, May 1, at the Belo with a luncheon honoring the judiciary, featur- Mansion. Doors open at 11:45 a.m. Tickets are ing keynote speaker the Honorable Eva Guz- $40 per person or $400 per table and are available man, Justice of the Supreme Court of Texas. online at www.dallasbar.org. For more informaJustice Guzman is a graduate of the Uni- tion, contact Mary Ellen Johnson at mjohnson@ HN versity of Houston and South Texas College of dallasbar.org or (214) 220-7474. Law. She also holds an LL.M. from Duke University School of Law. Justice Guzman’s career Eugenie Robichaux Rogers is an associate with Baker & McKenzie LLP on the bench began in 1999 when she was and a member of the DBA’s Publications Committee. She can be reached appointed by then-Governor George W. Bush at eugenie.rogers@bakermckenzie.com.
Focus
Real Property Law
Temporary vs. Permanent Injury to Real Property by Andrew Cox
In Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P., 57 Tex. Sup. Ct. J. 1465, 2014 WL 4252273, (Tex. Aug. 29, 2014), the Texas Supreme Court has brought much-needed clarity to a relatively murky area of real property law: whether an injury to real property is temporary or permanent. On their ranch in Shelby County, the Wheeler family conveyed an underground pipeline easement to Enbridge. The easement required the pipeline to be installed by underground boring, but Enbridge’s construction contractor mistakenly cut down several hundred feet of trees and bulldozed the ground. The Wheelers sued Enbridge for breach of contract and trespass. Following a jury trial, the trial court entered judgment for the Wheelers for damages representing the cost to restore the ranch to its pre-injury condition. The court of appeals reversed the judgment, holding that the Wheelers waived their damages claim by failing to request a jury question whether the injury to the ranch was temporary or permanent. The Supreme Court reversed, holding that whether an injury to real property is temporary or permanent is a question of law. The Supreme Court concluded that the injury to the Wheelers’ ranch was permanent, and that the appropriate measure of damage was the intrinsic value of the destroyed trees. The Supreme Court articulated several legal principles that should give greater guidance to practitioners and litigants in analyzing real property injury cases. It affirmed that the measure of damage depends on whether the injury is temporary or permanent. In cases of temporary injury, the landowner is generally entitled to recover the cost of restoration or replacement, plus loss of use of the property in the interim. By contrast, where the injury is considered permanent, the proper measure of damage is normally the property’s loss in market value. The court recognized the so-called “economic feasibility exception.” This exception applies when the injury to land is temporary but the cost of repairs exceeds the diminution of the property’s value to the point where repairs are not economical. The injury is therefore deemed permanent, and the loss in market value becomes the measure of damage. The court clarified that these rules apply in property injury cases
based on contractual as well as tort liability. Importantly, the court held that whether an injury to land is temporary or permanent is a question of law, with the caveat that disputed underlying facts relevant to the determination may be submitted to the jury. The court also fashioned wellneeded definitions for permanent and temporary injuries to land. It defined an injury to real property as permanent if “(a) it cannot be repaired, fixed, or restored, or (b) even though [it can], it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.” By contrast, it defined an injury to real property as temporary if “(a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.” One holding that appears to raise more questions than it answers involves the “intrinsic value of trees” measure of damage. The court held that this measure of damage applies where the injury is permanent, but the land has sustained no, or merely nominal, diminution in market value. The court explained that “the intrinsic value of a tree lies in its ‘ornamental (aesthetic) value and its utility (shade) value.’” The jury found the intrinsic value of the Wheelers’ trees was $288,000, and the cost to restore the ranch to its pre-injury condition was $300,000. The court forbade recovery of the latter sum under the economic feasibility exception, but allowed recovery of the former under the intrinsic value of trees exception. It is at least questionable whether the court’s application of the intrinsic value of trees exception was inconsistent with its application of the economic feasibility exception. The court also did not clarify precisely how intrinsic value damages may be proved. Nevertheless, the Wheeler decision should assist litigants and courts to analyze whether a property injury is temporary or permanent in a broad range of cases, whether the property involved is a rural ranch or urban lot, and whether the theory of liability is HN based in contract or tort. Andrew Cox is a partner at Burford & Ryburn, L.L.P. He can be reached at acox@brlaw.com
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