Terrace Land Company v. American Refuse, Inc., M.L. Deer Construction Co., and BRI River Oaks Limited Partnership

Opinion issued April 30, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-00-00393-CV

____________

TERRACE LAND CO., Appellant

V.

AMERICAN REFUSE, INC., BRI RIVER OAKS LIMITED PARTNERSHIP, AND M.L. DEER CONSTRUCTION, Appellees

* * * *

BRI RIVER OAKS LIMITED PARTNERSHIP AND M.L. DEER CONSTRUCTION, Appellants

V.

TERRACE LAND CO. AND AMERICAN REFUSE, INC., Appellees

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On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 98-44688

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O P I N I O N

This appeal arises from a trespass suit brought by Terrace Land Company (Terrace) against BRI River Oaks Limited Partnership(BRI), M.L. Deer Construction (M.L. Deer), and American Refuse, Inc.

We affirm in part and reverse and render in part.

CASE OVERVIEW

Terrace owned approximately two acres of land at the corner of Westheimer and Buffalo Speedway in Houston. In September 1996, the front portion of this property was leased by River Oaks Plant House. The remaining portion of the land, an L-shaped piece of unimproved property, approximately 1.25 acres in size, is comprised of two tracts, a .4804-acre tract and a .7653-acre tract.

In September 1996, the 1.25-acre piece of property was not leased. However, in 1996, River Oaks Plant House used the land for parking cars and storage. In 1999, while the litigation in this case was pending, Terrace leased the 1.25-acre piece of property to River Oaks Plant House.

BRI owned "River Oaks Apartments"--a 27-story apartment complex--which is located next to, and immediately west of, the 1.25-acre piece of unimproved property owned by Terrace. BRI hired M.L. Deer to repair a cinder block wall, which formed the boundary of the two properties. The wall repair included replacing broken cinder blocks and painting the wall.

M.L. Deer arranged for the rental of a dumpster from American Refuse to use in conjunction with the wall repair. With the tacit approval of BRI, and at the direction of M.L. Deer, American Refuse placed the dumpster partially on Terrace's property, and partially on the property of another third party, during the wall repair. Specifically, the dumpster was placed on the southwestern corner of the .4804-acre tract, which is part of the larger 1.25-acre tract owned by Terrace. The dumpster was on Terrace's land for a 10-day period from September 13 to 23, 1996. M.L. Deer also temporarily placed cinder blocks and other related construction materials on Terrace's property near the dumpster. It is uncontested that the placement of these items on Terrace's property did not result in any physical damage to the property. However, at the completion of the wall-repair project, Terrace discovered that 27 trees had been cut down on its property near various sections of the wall.

Terrace sued BRI, M.L. Deer, and American Refuse for trespass, alleging they had placed the dumpster and construction materials on Terrace's property, accessed the wall using Terrace's land, and cut down Terrace's trees. Portions of the 1.25-acre piece of property near the wall were the only property Terrace alleged was affected by the trespass.

For its alleged injuries, Terrace sought two measures of damages: (1) fair market rental value, based on allegations that Terrace had been temporarily deprived of the use and possession of its property, and (2) the "intrinsic value" of the 27 trees that had been cut down.

Terrace also sought punitive damages from BRI and M.L. Deer. After the defense rested, the trial court granted a directed verdict against Terrace on its claim for punitive damages.

The jury found BRI and M.L. Deer had cut down the trees on Terrace's property and found BRI should compensate Terrace in the amount of $13,500 for the intrinsic value of the trees. The jury also found M.L. Deer and American Refuse had trespassed on Terrace's land and awarded Terrace $12,500 for the fair market rental value of the property. The judgment also provided that M.L. Deer must indemnify American Refuse for damages awarded to Terrace.

Challenging the judgment entered against them, BRI and M.L. Deer (collectively "defendants" hereinafter), in a joint brief, complain in six points of error that (1) the evidence is legally insufficient to support the damages awarded against them in the judgment; (2) "fair market rental damages" were an improper measure of damages; (3) the fair market rental damages were not supported by expert testimony; (4) the trial court did not require Terrace to "fully open," during closing argument, and (5) Terrace's attorney engaged in improper jury argument.

Terrace Land also appeals in one cross-point, contending the trial court erred in granting a directed verdict on its claim for punitive damages.

DISCUSSION

A. Sufficiency of Evidence--Fair Market Rental Value Damages

In point of error two, defendants ⁽¹⁾ contend there was no evidence to support the award of fair market rental damages to Terrace.

When, as here, the party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is not more than a scintilla of evidence supporting it. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Crye, 907 S.W.2d at 499 (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

The jury answered "yes" to the following question: "Did M.L. Deer Construction Co. trespass upon Terrace Land Co.'s property at any time on or after September 17, 1996?" The jury was then asked, "What sum of money, if paid in cash, would fairly compensate Terrace Land Co. for the fair market rental value, if any, of the land used by M.L. Deer Construction Co. and American Refuse, Inc.?" With regard to this question, the jury was instructed as follows: "'Fair market rental value' means the amount that would be paid in cash by a willing renter who desires to rent, but is not required to rent, to a willing lessor who desires to lease, but is under no necessity of leasing. . . ." The jury answered this question by awarding Terrace $12,500.

In support of the fair market rental damages, Terrace offered the testimony of its executive vice-president, Henry Taub. Taub testified about the lease agreement between River Oaks Plant House and Terrace. As previously stated, in September 1996, River Oaks Plant House leased the portion of Terrace's property that fronted Westheimer and Buffalo Speedway, but the two tracts comprising the 1.25 acres at issue in this suit were not rented at that time. The lease was modified to include the two tracts in 1999.

On cross-examination, Taub acknowledged River Oaks Plant House paid Terrace $500 a month under the terms of the 1999 lease amendment. He also stated River Oaks Plant House was obligated to pay ad valorem taxes on the property pursuant to the lease agreement. However, on re-direct examination, Taub admitted the lease required River Oaks Plant House to "only pay the ad valorem taxes as they put up improvements." The uncontested evidence showed that no improvements were ever made to the 1.25 acres.

On appeal, Terrace contends a statement made by Taub during cross-examination constitutes legally sufficient evidence to support the award of $12,500 for fair market rental value damages. Specifically, Terrace relies on the Taub's comment that River Oaks Plant House was paying Terrace $125,000 to $130,000 a year "for their operation." From this testimony, Terrace contends the jury could have extrapolated that River Oaks Plant House was paying Terrace approximately $10,000 a month in rent in 1996 for the property that fronted Westheimer and Buffalo Speedway. Because the 1.25 acres alleged to have been affected by the trespass is 1.8 times larger than the property River Oaks Plant House rented in 1996, Terrace contends the jury could have inferred that the 1.25-acres could have generated $18,000 in rent in 1996. On this basis, Terrace asserts the award of $12,500 in fair market rental value damages is within the evidence.

Terrace presented no evidence showing the appropriate method for calculating fair market rental value. Terrace argues the jury could have reasonably inferred that a willing renter would have been required to rent the entire 1.25 acres alleged to have been affected by the trespass for a one-month term. Terrace makes this argument even though it never presented evidence showing the entire 1.25 acres was used by defendants or that defendants trespassed on Terrace's property for more than a 10-day period (only seven days of which were within the time-frame the jury was allowed to consider, i.e., on or after September 17, 1996). Terrace also presented no evidence showing the 1.25 acres are comparable to the property rented in 1996.

Taub's statement that River Oaks Plant House paid Terrace $125,000 to $130,000 "for their operation" must also be put into the context of Taub's other testimony. The statement was made during cross-examination, when appellant's counsel questioned Taub about the amount of rent River Oaks Plant House was paying in 1999 for the .484-acre and .7653-acre tracts comprising the 1.25 acres at issue in this suit. Taub's testimony was as follows:

Q: But the new lease in March of '99, the River Oaks Plant House people leased this rectangular tract which is the . . . .484 tract. And they leased the .7653 acre tract in March of '99?

. . . .

A: Sometime in '99, yes, sir. That was the amended lease.

Q: And for the right--these two tracts which are shown here, the .7653 acre tract and the .484 acre tract, the River Oaks Plant House pay $500 a month don't they?

A: That's not totally correct, sir. That's what they--the amendment, yes. But they're paying us 125 to a 100--$30,000 a year for their operation, sir. And part of that is this $500. And please, sir, the $500 also has a codicil to it that they would pay the ad valorem taxes on the property as they constructed improvements.

Once Taub's statement is put into context, the record reveals River Oaks Plant House paid Terrace $125,000 to $130,000 "for their operation" in 1999, which does not support Terrace's theory that the jury could infer from this figure that River Oaks Plant House was paying monthly rent of approximately $10,000 in 1996, at the time of the alleged trespass. Moreover, Taub clearly stated that the $125,000 to $130,000 figure included the rent River Oaks Plant House was paying in 1999 for both the .7653-acre and the .484-acre tracts at issue in this suit, as well as the more valuable land that fronted Westheimer and Buffalo Speedway.

Taub also did not testify that River Oaks Plant House paid Terrace $125,000 to $130,000 a year in rent; rather, he testified that River Oaks Plant House paid Terrace that amount a year "for their operation." Taub did not specify what was included in this figure, although the record reveals this figure was not limited to rent. Taub testified River Oaks Plant House was obligated under the lease to pay ad valorem taxes when it made improvements to the property. Because River Oaks Plant House had placed buildings on the front portion of the property, Taub testified River Oaks Plant House paid Terrace $25,000 a year for ad valorem taxes. According to Taub, River Oaks Plant House also provided insurance on the property. Taub's only testimony about rent was that River Oaks Plant House paid $500 a month rent in 1999 for the subject property. Though Taub offered testimony about what River Oaks Plant House paid Terrace in 1999 "for their operation," Terrace offered no evidence of the fair market rental value of the subject property in 1996.

Taub's statement that River Oaks Plant House paid Terrace $125,000 to $130,000 in 1999 "for their operation" is not probative of the fair market rental value of the subject property in September 1996. In sum, Terrace presented no evidence to support the $12,500 award for fair market rental value damages.

Viewing the evidence as we must, we hold Terrace failed to present legally sufficient evidence to support the trial court's award of fair market rental value damages.

We sustain defendants' issue two. ⁽²⁾  

B. Liability of American Refuse

The trial court rendered judgment in favor of Terrace against M.L. Deer and American Refuse jointly and severally in the amount of $16,236.32. This figure included the $12,500 jury award for fair market rental damages, plus pre-judgment interest. The judgment also provided that M.L. Deer must indemnify American Refuse.

American Refuse did not file a notice of appeal in this case; however, it filed an appellee's brief in response to M.L. Deer and BRI's brief. In its appellee's brief, American Refuse requests that, in the event this Court reverses and renders judgment that Terrace take nothing from M.L. Deer and BRI, or in the event of a remand, this Court render judgment that Terrace also take nothing from American Refuse.   

Generally, a party who seeks to alter the trial court's judgment must file a notice of appeal. Tex. R. App. P. 25.1(c). However, in light of our holding that the evidence was legally insufficient to support the jury's award of damages for fair market rental value, we reverse the joint and several judgment based on this measure of damages and render judgment that Terrace take nothing as to both M.L. Deer and American Refuse. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982) (holding reversal is required when rights of appealing and nonappealing parties are so interwoven or dependent on each other as to require reversal of whole judgment when part thereof is reversed); see also Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991); Osuna v. Quintana, 993 S.W.2d 201, 211 (Tex. App.--Corpus Christi 1999, no pet.); Belz v. Belz, 667 S.W.2d 240, 244 (Tex. App.--Dallas 1984, writ ref'd n.r.e.).

C. Sufficiency of Evidence--Intrinsic Value of trees

Defendants' point of error four states that the evidence is legally insufficient to support the award of damages to Terrace against BRI for the intrinsic value of Terrace's trees because there was no evidence the trees were cut down on or after September 17, 1996.

With regard to this issue, the trial court submitted the following questions to the jury:

Question No. 1A

Did any of those named below cut down trees on the property in question at any time on or after September 17, 1996? ⁽³⁾  

A party's conduct includes the conduct of another who acts with the party's authority. Authority for another to act for a party must arise from the party's agreement that the other act on behalf and for the benefit of the party. If a party so authorizes another to perform an act, that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.

Answer "Yes" or "No" for each of the following:

a. M.L. Deer Construction Co. Yes

b. BRI River Oaks L.P. Yes

If you have answered any part of Question No. 1A "Yes," then answer the following question. Otherwise, do not answer the following question.

Question No. 1B

What sum of money, if paid now in cash, would fairly and reasonably compensate Terrace Land Co. for the intrinsic value of the trees, if any, cut down on or after September 17, 1996 by any party as to which you have answered "Yes" in Question No. 1A?

You are instructed that a landowner may recover the intrinsic value of native trees only if they are used for shade, a barrier to neighboring roads or property, or had other alternative uses and were available for sale in local nurseries. Do not consider any other element of damages. Do not include interest on any amount of damages you find.

Answer in dollars and cents for damages, if any, as to any party as to which you have answered "Yes" in question 1A.

a. M.L. Deer Construction Co. -0-

b. BRI River Oaks L.P. $13,500

The jury was also instructed, "A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved."

Taub testified he saw a man trimming and cutting trees on Terrace's property on what he believed to be September 16, 1996. Taub approached the man and asked him what he was doing. The man told Taub he was under a contract with River Oaks Apartments and that he was completing the contract. Taub informed the man he was on private property and asked him to leave. The man refused to leave, stating he was working under the authority of the management of River Oaks Apartments and that he was planning to complete the job. On cross-examination, Taub clarified that he did not actually see the man cut down any trees; rather, he saw the man trimming trees on Terrace's property.

Robert Atkinson, Jr., a professional land surveyor, testified he was hired by Taub to conduct a survey because trees were being cut on Terrace's property. Atkinson's crew visited the property for the purpose of conducting the survey between September 19 and 21, 1996. At that time, the surveyors found that the 27 trees at issue had been cut down.

Atkinson personally visited the property only once sometime between September 21 and October 1, 1996. Although he could not give an exact date, Atkinson stated the trees had been freshly cut and opined he estimated the trees had been cut down within the previous six months. ⁽⁴⁾ Atkinson prepared a survey, which showed that all of the trees cut down were within 12 feet of the cinder block wall.

Dennis Clooney testified he was contracted by a landscaping company to trim trees for River Oaks Apartments. He recalled trimming trees along the wall and cutting two small trees leaning against the wall in February 1996.

Mark Deer, owner of M.L. Deer, testified the work on the wall was completed on September 19 or 20, 1996, but that the dumpster could not be moved until the 23rd because of rain. Deer stated his crew painted the entire wall and admitted to working on the eastern (i.e., Terrace) side of the wall. He stated his crew may have removed some vines that grew on the wall to allow them to paint.

The question we must answer is whether the evidence was legally sufficient for the jury to find that defendants cut down Terrace's trees on or after September 17, 1996. When evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Similarly, the "equal inference rule" traditionally provided that meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding. See, e.g., Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). However, the Texas Supreme recently attempted to clarify the equal inference rule in Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001). Chief Justice Phillips, writing for a majority of the justices, stated as follows:

Properly applied, the equal inference rule is but a species of the no evidence rule, emphasizing that when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence. But circumstantial evidence is not legally insufficient merely because more than one reasonable inference may be drawn from it. If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court and the court of appeals to assure that such evidence is factually sufficient.

Circumstantial evidence often requires a fact finder to choose among opposing reasonable inferences. . . . And this choice in turn may be influenced by the fact finder's views on credibility. Thus, a jury is entitled to consider the circumstantial evidence, weigh witnesses' credibility, and make reasonable inferences from the evidence it chooses to believe.   

Id. at 148-49 (Phillips, C.J., concurring and dissenting).

Considering the evidence in the light most favorable to the jury's finding, and applying the principles enunciated in Lozano, we conclude the evidence provided legal support for the jury's verdict.

Because Taub saw a man trimming, not cutting, trees on Terrace's property on September 16, the jury could have logically concluded that the trees were still standing on September 16. The evidence showed that, when the survey crew arrived on September 19-21, the trees had been cut down. Thus, if the trees were still standing on the 16th, but were cut down by the 19th, the jury could have reasonably inferred that the trees were cut down on September 17 or 18.

Other circumstantial evidence presented further supports the jury's finding. For example, the evidence showed that the trees were cut down in close proximity to the cinder block wall (i.e., within approximately 12 feet) and that defendants were repairing and painting the wall from September 13 through the 19th or 20th. From this evidence, the jury could have reasonably inferred that defendants were using and controlling Terrace's property near the wall during the period of September 17 to 20. The jury could have logically believed that, not only did defendants have the opportunity to cut down the trees, but that they also had the motive to do so, i.e., to clear the area near the wall to make it easier to complete the repairs.

The jury could also have reasonably believed that the man Taub saw trimming Terrace's trees on the 16th was also cutting down trees on that day. Based on common sense, the jury could then have inferred that it would take one man longer than one day to cut and clear 27 trees. See id. at 168 (Baker, J., concurring and dissenting) (noting common sense can provide logical bridge between circumstances and jury's finding). Thus, the jury could have logically concluded that the tree cutting continued until September 17 or 18.

Clooney's testimony that he had cut down two trees on Terrace's property in February 1996 could also be interpreted by the jury to show a past willingness and propensity on the part of BRI's contractors to cut down Terrace's trees. Moreover, based on Atkinson's testimony that the trees were cut down within six months of September (i.e., March 1996 or later), the jury could have believed that the 27 trees, for which Terrace sought damages, were not cut down by Clooney in February 1996.

We are not suggesting that these are the only reasonable inferences that could be drawn from the circumstantial evidence presented. However, as Chief Justice Phillips stated in Lozano, "the mere fact that more than one reasonable inference may be drawn from this evidence does not mean that no evidence supports the jury's verdict. If more than one reasonable inference may be drawn, a question of fact is ordinarily presented for the jury to decide." Id. at 153 (Phillips, C.J., concurring and dissenting).

Here, based on the circumstantial evidence, the jury could have reasonably inferred that defendants cut down Terrace's trees on or after September 17, 1996. Considering the evidence in the light most favorable to the jury's finding as we must, we hold the evidence was legally sufficient to show the trees were removed on or after September 17, 1996. Accordingly, we overrule defendants' point of error four.

D. Failure to "Fully Open"

In point of error five, defendants contend the trial court erred by failing to require Terrace's counsel to "fully open" during closing argument. Specifically, defendants complain the trial court allowed counsel for Terrace to argue to the jury regarding damages in rebuttal when Terrace's counsel failed to fully open by addressing these issues in his initial argument.

Rule 269(b) of the Texas Rules of Civil Procedure states as follows: "In all arguments, and especially in arguments on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side." Tex. R. Civ. P. 269(b).

At the close of Terrace's initial argument, the trial court sustained defendants' objection relating to Terrace's failure to address its damage claim in the opening portion of its closing argument. Defendants' counsel then presented his closing argument. In rebuttal, Terrace's counsel presented argument relating to the calculation of Terrace's damage claim. Although defendants now complain on appeal that Terrace could not make this argument in rebuttal for the first time, defendants failed to object on that basis during Terrace's rebuttal.

"[T]here is no reversible error resultant because a plaintiff fails to open and fully discuss the whole case in the opening argument. The error, if any under the circumstances, would occur when the same plaintiff is permitted to discuss matters in the closing argument which should have been injected when he opened." Continental Bus. Sys., Inc. v. Toombs, 325 S.W.2d 153 (Tex. Civ. App.--Ft. Worth 1959, writ ref'd n.r.e.). In other words, no error occurred when Terrace failed to discuss the damages issue in the opening portion of its argument. Id. If any error was committed, it was committed when Terrace discussed the damages issue in the rebuttal portion of its argument. Id. However, defendants failed to preserve any complaint relating to this issue because they did not object when Terrace raised this matter in its rebuttal. Tex. R. App. P. 33.1.

We overrule defendants' point of error five.

E. Improper Jury Argument

In point of error six, defendants complain Terrace's counsel engaged in six different instances of improper jury argument during closing argument. ⁽⁵⁾

Improper jury arguments are usually referred to as one of two types: "curable" or "incurable." Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968). To preserve error on curable argument, counsel generally must object and, if the objection is sustained, request the court to instruct the jury to disregard the argument. Id.; Texas Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.--Houston [1st Dist.] 1991, writ denied). However, objection is not required in the case of incurable argument, which is argument so inflammatory that its harmful or prejudicial nature cannot be cured by an instruction to disregard. Puckett, 822 S.W.2d at 135. To complain on appeal of incurable jury argument not otherwise ruled upon by the trial court, an appellant must have presented the complaint in a motion for new trial. Tex. R. Civ. P. 324(b)(5).

Defendants complain that Terrace's counsel invited the jury to consider matters outside the evidence, specifically, who had cut down 50 trees on Terrace's property in December of 1999. Defendants also contend the following statement by Terrace's counsel constituted improper jury argument: "What we're here today is for ya'll to accept the evidence, not these lawyers. Figures don't lie, liars figure."

Defendants did not object to or request the trial court to instruct the jury to disregard these jury arguments. Thus, on appeal, defendants would not only have to show that the arguments were "incurable," but that they preserved the complaint by presenting it in a motion for new trial. Tex. R. Civ. P. 324(b)(5). Because defendants failed to file a motion for new trial, they have waived any complaints on appeal with respect to these jury arguments. Tex. R. Civ. P. 324(b)(5); Austin v. Shampine, 948 S.W.2d 900, 906 (Tex. App.--Texarkana 1997, writ dism'd by agr.).

Defendants also complain Terrace's counsel told the jury that (1) the jury should "go by the law"; (2) defendants' counsel "didn't tell you about the law"; (3) defendants "should have filed something there"; and (4) defendants "could have had their day in court before." Defendants objected to these statements, and the trial court ruled on the objection by sustaining it; however, defendants failed to request that the trial court to instruct the jury to disregard the argument. Thus, to prevail, defendants must show that the statements constituted incurable jury argument. See Busse v. Pac. Cattle Feeding Fund No. 1, Ltd., 896 S.W.2d 807, 815 (Tex. App.--Texarkana 1995, writ denied) (stating failure to press for instruction at time of "curable" jury argument operates as waiver of any complaint that may be made about argument).

To determine whether the jury argument was incurable, we examine the record to determine whether an instruction to disregard Terrace's allegedly improper arguments would have sufficiently remedied the harm. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); Goswami v. Thetford, 829 S.W.2d 317, 321 (Tex. App.--El Paso 1992, writ denied). Only rarely will an improper argument so prejudicially influence the jury that the harm cannot be cured. Reese, 584 S.W.2d at 839-40.

Examining Terrace's argument in context of the record, we find the likelihood of prejudice less certain than the harm from other arguments that have been held incurable. See, e.g., In re W.G.W., 812 S.W.2d 409, 415, 416 (Tex. App.--Houston [1st Dist.] 1991, no writ) (holding attempt to link mother's cervical cancer with immoral conduct in custody dispute was incurable because there was no evidence to support such connection); Howard v. Faberge, Inc., 679 S.W.2d 644, 649-50 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.) (holding demonstration of product's non-flammability by counsel's attempt to ignite his arm during closing argument was incurable when experiment was not cumulative of evidence adduced during trial); Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 756-59 (Tex. App.--Texarkana 1992, writ denied) (concluding unsupported allegations that opposing counsel manufactured evidence and suborned perjury are generally incurable); Texas Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859, 862-67 (Tex. App.--Antonio 1990, writ denied) (holding intentional appeal for verdict based on parties' race or ethnicity is incurable).

We are unconvinced that the arguments of which defendants complain could not have been cured by an instruction to disregard. Because the jury arguments were not incurable, defendants have failed to preserve error.

We overrule defendants' point of error six.

F. Directed Verdict on Punitive Damages

In its sole cross-point, Terrace complains the trial court erred in granting a directed verdict as to its claim for punitive damages.

We review the grant of a directed verdict in the light most favorable to the party against whom the verdict was rendered and disregard all contrary evidence and inferences. See Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302, 303 (Tex. 1988); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 476 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). The movant is entitled to a directed verdict when (1) a defect in the opponent's pleading makes the pleading insufficient to support a judgment; (2) the evidence conclusively proves the truth of factual propositions that, under the substantive law, establish the right of the movant to judgment; or (3) the evidence is legally insufficient to raise an issue of fact on a fact proposition that must be established for the movant's opponent to be entitled to judgment. See Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex. App.-- Houston [1st Dist.] 1995, writ denied).

Exemplary damages may be awarded if the claimant proves by clear and convincing evidence that the harm for which he seeks recovery of exemplary damages resulted from fraud or malice. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(1) (Vernon 1997).

The legislature has defined "malice" in this context to mean as follows:

(A) a specific intent by the defendant to cause substantial injury to the claimant; or

(B) an act or omission:

(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which the actor had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7)(B) (Vernon 1997); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994) (providing same definition for malice's common law ancestor, "gross negligence").

The definition of malice required that defendants either intended to cause substantial injury to Terrace or acted in a manner involving an extreme degree of risk. Terrace contends evidence was presented from which the jury could have concluded that (1) BRI, and its agent M.L. Deer, knew the 27 trees at issue were on Terrace's property and (2) defendants acted with intent to destroy the 27 trees, which constitutes an intent to cause substantial property damage.

Exemplary damages are levied only to punish defendants for "outrageous, malicious, or otherwise morally culpable conduct." Moriel, 879 S.W.2d at 16. "Every tort involves conduct that the law considers wrong, but punitive damages are proper only in the most exceptional cases." Id. at 18. When determining whether to award exemplary damages, the fact finder must consider the nature of the wrong, the character of the conduct, the degree of culpability, the situation and sensibilities of the parties, the offensiveness of the conduct to a public sense of justice and propriety, and the size of an award needed to deter similar future conduct. See Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).

The record contains no evidence of ill-will, spite, or a specific intent on the part of defendants to cause substantial injury to Terrace. ⁽⁶⁾ See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex.1996); see also Oni, Inc. v. Swift, 990 S.W.2d 500, 503 (Tex. App.--Austin 1999, no pet.). The evidence indicates that defendants' actions were not motivated by any wanton or malicious desire to injure Terrace, but rather by a desire to repair the cinder block wall. See Oni, 990 S.W.2d at 503. Although the circumstantial evidence may suggest that defendants cut down Terrace's trees, there is no evidence that defendants cut down Terrace's trees with the intent to cause Terrace substantial injury, nor is there any evidence that defendants had actual awareness of an extreme risk and proceeded with conscious indifference to the rights, safety, or welfare of Terrace. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7)(B); Moriel, 879 S.W.2d at 22.

None of the evidence introduced at trial suggested that defendants' cutting of Terrace's trees is the type of egregious violation for which exemplary damages are appropriate. Therefore, we conclude that there is no evidence from which the jury could reasonably infer that defendants acted maliciously. Because malice is a statutory prerequisite to an award of exemplary damages, the trial court did not err in directing a verdict on Terrace's claim for exemplary damages.

We overrule Terrace's sole cross-point.

CONCLUSION

Based on the evidence at trial, we reverse the portion of the trial court's judgment awarding Terrace damages against M.L. Deer and American Refuse for fair market rental value, and render judgment that Terrace take nothing on its claims against M.L. Deer and American Refuse for those damages. We affirm the portion of the trial court's judgment awarding damages against BRI for the intrinsic value of Terrace's trees.

Frank C. Price ⁽⁷⁾  

Justice

Panel consists of Justices Cohen, Radack, and Price.

Do not publish. Tex. R. App. P. 47.

1.

Although defendants have filed a joint brief, this point of error is only applicable to only the damages awarded against M.L. Deer and American Refuse.

2.

Because of the disposition of point of error two, we need not address points of error one and three, which discuss defendants' complaints that "fair market rental damages" were an improper measure of damages and that the fair market rental damages were not supported by expert testimony.

3.

Terrace did not file its original petition until September 17, 1998. A two-year statute of limitations governs suits for trespass for injury to realty. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2002). As such, the jury question contains the temporal limitation of September 17, 1996 because any injury caused by defendants before that time have been barred by the statute of limitations, which defendants pled as an affirmative defense.

4.

The trial court sustained an objection to this testimony; however, defendants failed to request the trial court to instruct the jury to disregard the testimony. Thus, defendants have waived any complaint about this testimony on appeal. See State Bar of Texas v. Evans, 774 S.W.2d 656, 659 n.6 (Tex. 1989) (stating, after objection is sustained, failure to request court to instruct jury to disregard inadmissible testimony waives error if instruction would have cured error); Peshak v. Greer, 13 S.W.3d 421, 424-25 (Tex. App.--Corpus Christi 2000, no pet.) (holding error waived by not following sustained objection with request for instruction to disregard).

5.

Three of these instances relate specifically to Terrace's fair market rental value damages request. Because we have held that such damages were not supported by legally sufficient evidence, we need not discuss these alleged instances of improper jury argument.

6.

Recovery of punitive damages requires a finding of an independent tort with accompanying actual damages. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993). Because we have held the evidence was legally insufficient to support damages for fair market rental value, we will consider only the evidence related to the cutting of Terrace's trees in determining if the trial court properly granted the directed verdict on Terrace's request for exemplary damages.

7.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.