## Facts

- Wilford C. Senn and Wanda Joan Senn bought the surface estate of the Covered “S” Ranch in Scurry County, Texas in 1997 for $3,164,000.
- Oil-and-gas development had occurred on the ranch since about 1939, and hundreds of wells had been drilled by various operators before the Senns purchased the property.
- Primrose Operating Company, Inc. operated on a portion of the ranch under mineral leases, beginning in 1992 and ending in 1999.
- After purchasing the ranch, the Senns hired consultants who identified 86 alleged spill sites on Primrose’s lease area involving petroleum hydrocarbons and chlorides from leaking flow lines.
- The Senns contended Primrose negligently caused the spills and failed to properly remediate them, asserting damages tied to the cost of cleanup and alleged loss in property value.
- In the first jury trial, the jury returned a take-nothing verdict for Primrose; the trial court granted a partial new trial limited to Primrose’s liability for surface damages, stating it was “in the interests of justice and fairness,” and separately indicating concern that the jury had not followed its oath.
- In the second jury trial, the jury found Primrose negligent and found malice; it found both the cost to clean up and the diminution in fair market value to be $2,110,000. The trial court entered judgment awarding $2,110,000 actual damages, prejudgment interest, and exemplary damages.
- Primrose appealed, challenging the partial-new-trial order and the legal and factual sufficiency of the evidence supporting both the cleanup-cost and market-value findings.

## Issues

1. Whether the court of appeals could review the trial court’s order granting a partial new trial when the order was entered within the trial court’s plenary power.
2. Whether legally and factually sufficient evidence supported the jury’s findings that (a) cleanup cost was $2,110,000 and (b) diminution in fair market value was $2,110,000, and whether restoration cost was a proper measure of damages on these facts.
3. Whether exemplary damages could stand if the actual-damages award failed.

## Decision

- The court held the partial-new-trial order, entered while the trial court retained plenary power, was not reviewable on appeal.
- The court held the evidence was legally and factually insufficient to support the $2,110,000 damages finding under the proper measure for injury to land.
- Treating the harm as a permanent injury, the court concluded diminution in fair market value was the correct measure; the Senns did not present competent evidence tying a $2,110,000 market-value loss to Primrose’s conduct.
- Because the actual-damages award could not stand, the exemplary-damages award also failed.
- The court reversed the judgment and rendered a take-nothing judgment for Primrose.

## Legal Principles

- A trial court’s order granting a new trial in a civil case, if signed during the court’s plenary power, is not reviewable on appeal, including an order granting a new trial limited to particular issues.
- Texas law distinguishes between temporary and permanent injury to land: permanent injury is generally measured by diminution in fair market value; temporary injury may allow restoration costs when appropriate.
- Restoration or remediation cost is not a substitute for market-value loss in a permanent-injury case; it may be considered only to the extent it reliably bears on market value and is supported by competent evidence.
- Market-value damages must be proven with non-speculative, competent valuation evidence showing that the defendant’s conduct caused the claimed reduction in value, particularly where the property had preexisting oilfield conditions from decades of operations by multiple parties.
- Exemplary damages are not recoverable absent an award of actual damages.

## Conclusion

The Eleventh Court of Appeals held it could not review the trial court’s partial-new-trial order entered within plenary power, but it reversed and rendered a take-nothing judgment because the Senns’ proof improperly equated remediation cost with diminution in market value and did not competently establish a $2,110,000 market-value loss attributable to Primrose’s contamination, which also eliminated exemplary damages.


Primrose Operating Co. v. Senn, 161 S.W.3d 258 (2005)