PJC General Negligence 2022

T RESPASS

PJC 11.3

property, loss of use of the property, and loss of any expected profits from the use of the property.”); see also McGinty v. Hennen , 372 S.W.3d 625, 627 (Tex. 2012) (per curiam) (construction contract case in which court, without discussing temporary-ver sus-permanent distinction, held plaintiff bears burden to prove that the remedial dam ages are reasonable and necessary); Mustang Pipeline Co. v. Driver Pipeline Co. , 134 S.W.3d 195, 200 (Tex. 2004) (per curiam) (party seeking to recover cost to complete has burden of proving that damages sought are reasonable). The general rule regarding temporary-versus-permanent measures of damages pro vides that they are mutually exclusive, and damages for both may not be recovered in the same action. Schneider National Carriers, Inc. , 147 S.W.3d at 275–76; Gilbert Wheeler, Inc. , 449 S.W.3d at 481. For possible exceptions to the general rule that dam ages for permanent and temporary injuries may not be recovered in the same action, see, e.g., Parkway Co. v. Woodruff , 901 S.W.2d 434, 441 (Tex. 1995), and Ludt v. McCollum , 762 S.W.2d 575, 576 (Tex. 1988) (per curiam). See also Houston Unlim ited, Inc. Metal Processing v. Mel Acres Ranch , 443 S.W.3d 820 (Tex. 2014) (discuss ing “stigma” damages but denying them based on a failure of evidence). Moreover, the general temporary-versus-permanent distinction may not control in every situation, which may suggest that one or both parties submit questions on both measures. For example, regardless of whether the injury is temporary or permanent, the “economic feasibility exception” may operate to limit recovery to the lesser of the cost-to-repair or loss-in-value damages. As of yet, there is no guidance from the courts on what level of discrepancy between the two damages measures will trigger a manda tory selection of the lesser measure. Cases that have applied (rather than just dis cussed) the economic feasibility exception have done so citing a significant disparity between the two measures. Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (refusing to per mit cost of repair because it was “disproportionately” larger than essentially nominal loss of market value); Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004) (limiting plaintiff to cost-to-restore because loss in mar ket value was “significantly greater”). But see Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co. , 747 S.W.2d 785 (Tex. 1988) (DTPA case for real property dam age; court stated that party has right to judgment on theory entitling him to most favor able relief); see also McGinty , 372 S.W.3d at 629 (extensively discussing whether plaintiff’s evidence on difference in home’s value was sufficient after finding that evi dence on cost-to-repair was not; no discussion that plaintiff would be legally limited to one or the other). An effect of the economic feasibility exception is that a defendant may wish (and may have a burden) to submit evidence on what it believes is a lesser measure of damages. Hall v. Hubco , 292 S.W.3d 22, 36 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Other exceptions to the general temporary-versus-permanent rules discussed above also exist. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (noting that “general rule” should be applied with “some flexibility” and that there are “a number of exceptions”);

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