PJC General Negligence 2022

T RESPASS

PJC 11.6

ence in home’s value was sufficient after finding that evidence on cost to repair was not; no discussion that plaintiff would be legally limited to one or the other). As of yet, there is no guidance from the courts on what level of discrepancy between the two damages measures will trigger a mandatory selection of the lesser measure . See Gilbert Wheeler, Inc. , 449 S.W.3d at 481; Coastal Transport Co. , 136 S.W.3d at 235. For possible contrary authority, see Boyce Iron Works, Inc. v. South western Bell Telephone Co. , 747 S.W.2d 785 (Tex. 1988) (DTPA case for real property damage; court stated that party has right to judgment on theory entitling him to most favorable relief). As a result of the possible application of the economic feasibility exception, a claimant may wish to submit evidence on both measures of damages to ensure a recovery. Another effect of the economic feasibility exception is that a defendant may wish to submit evidence on what it believes is a lesser measure of damages in an effort to trig ger the exception. See Hall v. Hubco , 292 S.W.3d 22 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (plaintiff not required to prove both measures; burden of proof is on defendant to prove that one would be lesser; court affirmed award of loss of value, even though cost to repair may have been less, because there was no evi dence of cost to repair); ExxonMobil Corp. v. Lazy R Ranch, L.P. , 511 S.W.3d 538, 541 n.5 (Tex. 2017) (citing Hall in connection with discussion on economic feasibility exception); Gilbert Wheeler, Inc. , 449 S.W.3d at 479 (citing Hall in connection with the concept that damage principles apply across all causes of action). See PJC 11.7 for a question on damages for permanent injury. Stigma damages. For a discussion of whether stigma damages are available in cases involving temporary injury to real property, i.e., damages representing the mar ket’s perception of a decrease in a property’s value that may continue to exist after an injury to real property has been fully repaired or remediated, see Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch , 443 S.W.3d 820, 824 (Tex. 2014) (describ ing this effect as “damage to the reputation of the realty” from a prior injury)). See also Ludt v. McCollum , 762 S.W.2d 575, 576 (Tex. 1988) (permitting recovery of repairs and of permanent reduction in post-repair value to real property). For personal prop erty, the courts have often permitted this recovery. See J&D Towing , 478 S.W.3d at 656 n.28. If a “stigma damages” recovery is permitted in a specific instance, the following language may be added to the question: 3. The difference in market value in Clay County, Texas, of the property immediately before the occurrence in question and immedi ately after the reasonable and necessary repairs were made. “Market value” is the price a willing seller not obligated to sell can obtain from a willing buyer not obligated to buy.

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