APPELLANTS

APPELLEE

Eric and Jamie Bindock appeal from a take-nothing judgment in a breach of contract action they brought against the City of Cedar Park ("Cedar Park"). The trial court rendered the adverse judgment and made findings of fact and conclusions of law. We will affirm the judgment.

In September 1988, the Bindocks entered into a contract with Cedar Park granting a public utility easement. An attached agreement contained three promises by Cedar Park as "other valuable consideration" for the easement. Cedar Park promised to:

1. Install one fire hydrant within the easement;

2. Provide one free water tap capable of delivering approximately 150 LUE's [sic] for the Bindocks' use; provided, that this Agreement does not effect [sic] the Bindocks [sic] obligation to pay community impact fees for such LUEs of water as a condition of their use; and

3. Remove any oak trees smaller than six (6) inches in diameter which must be removed to accommodate the city's twelve inch water line within the easement, in a way that will allow the trees to be replanted by the Bindocks. In this regard, the city shall make no warranties or representations as to the ability of such trees to survive such removal and replanting.

The Bindocks contend Cedar Park broke the third of these promises.

In February 1989, Cedar Park installed the water main on the easement. The trees on the easement were simply bulldozed down and were thus unfit for replanting. Some of the destroyed trees were on the Bindocks' property and some were on an adjoining right-of-way belonging to the State.

Trial and Judgment

The Bindocks brought a breach of contract suit alleging that the bulldozing of the trees violated the third promise in their agreement with Cedar Park. During discovery, Cedar Park admitted that "numerous" trees were "bulldozed down and/or removed from the ground" on the Bindocks' land.

Cedar Park stipulated at trial that some trees were destroyed and that the issue before the court was "how many and how much." The Bindocks limited their claim to twenty-three trees. At trial, the Bindocks asserted that all of these twenty-three trees were within their easement and all were under six inches in diameter and thus covered by the agreement. Cedar Park disputed this number. The engineer in charge of the project testified, over objection, that it was difficult to identify which of the destroyed trees were from the Bindocks' land and which were from the state's right-of-way. Although he never testified to a specific number of trees, he estimated that no more than eight or nine trees were located on the Bindocks' property and covered by the agreement.

The Bindocks' expert witness testified that removing trees for replanting required "boxing" the roots. The engineer in charge of the project testified that removing the trees from the rocky ground for replanting would have been "very tough stuff." His understanding of the contract was that "balling" the roots was not required by the agreement, and that he knew of no way to have removed the trees in a manner which would have allowed replanting. There was no testimony that trees moved absent one of these two procedures, "boxing" or "balling" the roots, would have lived. As a matter of fact, the undisputed testimony was that trees removed without some sort of treatment-procedure would most probably have died.

As part of its promise to remove the trees, Cedar Park expressly disclaimed any warranty that the trees would live after removal and replanting. Mr. Bindock conceded that elaborate "balling" of the roots was not contemplated when the contract was made.

The trial court rendered a judgment that the Bindocks take nothing. The Bindocks then requested, and the trial court made, findings of fact and conclusions of law. Pertinent findings of fact included:

(2) Under the contract, Defendant was to refrain from destroying live oak trees on Plaintiffs' property which were less than six inches in diameter, and Defendant was to remove those trees in such a manner as to allow Plaintiff to replant them, but the contract did not contemplate that the trees would be in the same condition as trees sold in nurseries.

(3) During the course of Defendant's construction work, some trees were destroyed, but the number and size of any trees destroyed on Plaintiffs' property is unclear.

(4) Plaintiff failed to present any evidence as to the value of the trees in the condition in which they should have been after removal pursuant to the contract.

. . .

(6) Plaintiff failed to prove which trees were on the plaintiffs' property rather than on other property, and there was no evidence as to the size or value of the particular trees which were on plaintiffs' property.

The trial court also made the following conclusion of law:

(1) Plaintiffs' evidence is insufficient to support an award of damages.

The Bindocks bring forth nine points of error.

Points of Error

The Bindocks' nine points of error present two general questions: (1) Was the Bindocks' evidence so overwhelming that the trial court's findings that the number and value of the trees destroyed was unclear are against the great weight and preponderance of the evidence? (2) Was the Bindocks' evidence related to the extent of damages either conclusive as a matter of law, or, so overwhelming that the trial court's finding that proof of damages was insufficient is against the great weight and preponderance of the evidence?

Standard of review

The appropriate challenge to a finding concerning an issue upon which the complainant had the burden of proof is either a "matter of law" point or a "against the great weight and preponderance of the evidence" point. See Raw Hide Oil and Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.--Amarillo 1988, writ denied); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)(The trial court's findings of fact are reviewed for factual sufficiency of the evidence by the same standards applicable to jury findings). In reviewing great weight and preponderance points, we must examine the entire record to determine if there is some evidence to support the finding, and then determine whether, in light of the entire record, the finding is manifestly unjust. In Re King's Estate, 244 S.W.2d 660. 661 (Tex. 1951); Raw Hide, 766 S.W.2d at 276; see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. (1991).

When a complainant who had the burden of proof on an issue attempts to overcome an adverse finding on that issue as a matter of law, he must overcome two hurdles. First the record must be examined for evidence that supports the court's findings, while ignoring all evidence to the contrary. If there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982).

Number and value of destroyed trees

The Bindocks assert in three points of error that the trial court's finding that the number and value of trees destroyed on their property was unclear is against the great weight and preponderance of the evidence, and that in making this finding the court considered evidence erroneously admitted over a valid objection.

We will first consider the third point of error that evidence was improperly admitted and considered. To preserve error, an objection must be both timely and specific and a ruling must be obtained. Tex. R. App. P. 52(a). Preliminary questions concerning the admissibility of evidence are determined by the trial court. Tex. R. Civ. Evid. 104(a). This determination will not be overturned absent an abuse of discretion. Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex. App.--Dallas 1991, writ denied).

The Bindocks made objections at trial on two occasions when Cedar Park attempted to introduce evidence controverting Mr. Bindock's testimony that twenty-three trees were destroyed on his land. The objections were timely and specific. It appears that the first objection may have been withdrawn without a ruling, but even if error were preserved, we conclude the evidence was properly admitted.

The Bindocks argue that Cedar Park's pretrial admission that "numerous oak trees" were "bulldozed down and/or removed from the ground on plaintiffs' land" was an admission that all destroyed trees were on the Bindocks' land. Therefore, they claim that any evidence which would show that some number of the trees was from the adjoining state right-of-way should have been excluded. The Bindocks claimed at trial that "other property was not an issue, since [Cedar Park] had already judicially admitted that the destroyed trees were on the Bindocks' property." The trial court rejected this contention. The Bindocks misread the scope of Cedar Park's admission. The admission is more easily understood as Cedar Park's recognition of the fact that it had destroyed some trees on the Bindocks' land in contravention of the contract. Cedar Park did not admit, however, that all of the destroyed trees were from the Bindocks' land. Cedar Park reiterated the admission at the beginning of trial and explained that the disputed issues before the court were how many trees and how much they were worth. In the same set of requested admissions, Cedar Park denied that twenty-three trees were destroyed on the Bindocks' land. Clearly, the number and location of the trees destroyed remained in dispute after the pre-trial admission. The trial court did not abuse its discretion in admitting the evidence. We therefore overrule the Bindocks' third point of error.

When we consider the record in its entirety, it is apparent that Cedar Park admitted responsibility for the destruction of some number of trees on the Bindocks' land contrary to the terms of the agreement. The burden of proof was on the Bindocks to prove by a preponderance of the evidence how many trees were destroyed and the value of those trees. The trial court found that they failed to carry this burden. The Bindocks now assert that this finding was against the great weight and preponderance of the evidence.

The Bindocks place great emphasis on the fact that their claim was limited to twenty-three trees. They seem to believe this limitation conclusively proves that twenty-three trees were destroyed. Their limitation is merely an allegation and has no evidentiary value. See NBS Southern, Inc. v. Mail Box, Inc., 772 S.W.2d 470, 472 (Tex. App.--Dallas 1989, writ denied).

Mr. Bindock testified that twenty-three trees of under six inches in diameter were destroyed. However, the engineer in charge of the project testified that no more than half of this number were on the Bindocks' land. The trial court as factfinder was entitled to judge the credibility of these witnesses and give their testimony appropriate weight. The trial court must have credited the engineer's testimony on this issue.

Mr. Bindock's testimony is the only evidence the Bindocks presented as to the number of trees destroyed. The Bindocks' expert witness gave the retail value of twenty-three trees of various sizes. Her testimony was based only on the trees in the photographs taken by Mr. Bindock. She did not claim any other personal knowledge that twenty-three of the Bindocks' trees were destroyed. Mr. Bindock's testimony, alone, purported to establish that all of the trees in the pictures were from his land. At one point the Bindocks' expert witness admitted that there was not enough information in the pictures to judge the actual value of the trees.

This evidence does not establish that the trial court's finding that the Bindocks failed to prove the number and value of the destroyed trees is against the great weight and preponderance of the evidence. We therefore overrule points of error one and two.

Damages

The trial court found that the Bindocks failed to prove, by a preponderance of the evidence, the amount of damages they had suffered because of Cedar Park's actions. The Bindocks challenge this finding in their remaining six points of error, alleging that the trial court used an improper measure of damages, and that the evidence presented conclusively established the amount of damages. In the alternative, the Bindocks argue that the trial court's finding is against the great weight and preponderance of the evidence.

The Bindocks relied on the testimony of an expert witness to establish the value of the destroyed trees. She testified regarding the retail value of comparable trees sold in nursery condition. She also testified that removal for replanting required that a box be built around the root systems after the trees were removed from the ground and before they were moved. There is no evidence in the record demonstrating that the trees destroyed were of the same quality as those sold in nurseries. In addition, there was no evidence that the agreement between themselves and Cedar Park contemplated that the trees would be removed in accordance with nursery procedures. To the contrary, Mr. Bindock conceded that "any trees that had to be removed . . . would [be removed] in such a way as they could be replanted. . . . They weren't going to come in and make, you know, ball the roots or put it in pots or anything like that." Contrary to the Bindocks' allegations, the evidence established that the trees were not in nursery condition and that neither the Bindocks nor Cedar Park intended that the trees would be removed using nursery procedures. The Bindocks' expert testimony thus provides no evidence of the actual value of the trees destroyed.

The proper measure of damages in a breach of contract case is that which will give the non-breaching party the "benefit of the bargain" or his "expectancy." Leyendecker & Assoc., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984); March v. Thiery, 729 S.W.2d 889, 895 (Tex.App.--Corpus Christi 1987, no writ). The purpose of this measure of damages is to place the injured party in as good a position as it would have enjoyed if the other party had fully performed the terms of the contract. Lakewood Pipe v. Conveying Techniques, 814 S.W.2d 553, 555 (Tex. App.--Houston [1st Dist.] 1991, no writ); Thomas C. Cook, Inc. v. Rowhanian, 774 S.W.2d 679, 686 (Tex.App.--El Paso 1989, writ denied).

The Bindocks were entitled to an amount of damages which would represent their position had Cedar Park properly removed the trees pursuant to the terms of the contract. The trial court used the correct measure of damages.

The Bindocks presented no evidence of the value of the trees after removal according to the terms of the contract. Cedar Park did have some evidence in the record that the trees would not have survived removal and replanting. There was nothing in the contract regarding collateral damage to the Bindocks' property resulting from installation of the water main on the easement and no allegation seeking recovery in tort for such damages.

Because the trial court used the correct measure of damages and because there is insufficient evidence to support a damage award under this measure, we overrule points of error four through nine.

For the reasons stated above, we affirm the trial court's take-nothing judgment.

Mack Kidd, Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: March 10, 1993

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