PJC General Negligence 2022

PJC 11.7

T RESPASS

value); Exxon Corp. v. Middleton , 613 S.W.2d 240, 246 (1981) (same); and Hlavinka v. HSC Pipeline Partnership, LLC , 650 S.W.3d 483, 496 (Tex. 2022) (same). Mental anguish add-on. Mental anguish damages should be submitted as part of PJC 11.7 only when the trespass has been found to be intentional. This is because men tal anguish damages are recoverable in actions for trespass to real property, but Texas courts have required a showing of deliberate and willful trespass and actual property damage before awarding damages for emotional distress or mental anguish. City of Tyler v. Likes , 962 S.W.2d 489, 497–500 (Tex. 1997). Intrinsic value of trees damages. If the reduction in market value caused by a permanent injury is zero or “essentially nominal,” and the injury sustained was to trees, the plaintiff may be able to recover the trees’ “intrinsic value.” Gilbert Wheeler, Inc. , 449 S.W.3d at 482–83 (discussing the “intrinsic value of trees” exception and extending Porras v. Craig , 675 S.W.2d 503, 506 (Tex. 1984)). In such a circumstance, the following question derived from Gilbert Wheeler may be used: What sum of money, if paid now in cash, would fairly and rea sonably compensate Paul Payne for the injury resulting from [ insert description ]? Consider only the damaged trees’ ornamental and utilitarian value. Answer in dollars and cents for damages, if any. Answer: _______________ Property with sentimental value. For a discussion of recovery of sentimental damages in the context of personal property, see City of Tyler v. Likes , 962 S.W.2d 489, 497 (Tex. 1997). Economic feasibility exception/failure to prove reasonableness of cost of repairs. If the claimant fails to prove the cost to repair is reasonable and necessary, or if the repairs are not economically feasible, the injury may be deemed permanent as a matter of law and the claimant limited to the diminution in fair market value. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (refusing to permit cost of repair because it was “disproportionately” larger than essentially nominal loss of market value); see also McGinty v. Hennen , 372 S.W.3d 625, 629 (Tex. 2012) (per curiam) (extensively discussing whether evidence on difference 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. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004). For possible con-

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