Affirmed and Memorandum Opinion filed August 13, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00793-CV

KELLY CUSTOM HOMES, LLC AND ROBIN KELLY, Appellants 

V.

RODNEY HOPPER AND LYNDSAY HOPPER, Appellees 

On Appeal from the 40th District Court

Ellis County, Texas

Trial Court Cause No. 108060

MEMORANDUM OPINION

A jury found that a property developer damaged a neighboring landowners’ 

property by intentionally and maliciously trespassing on, and diverting surface 

water over, the neighboring property. On appeal, the developer challenges the 

legal basis of the landowners’ water diversion claim, as well as the legal and 

factual sufficiency of the evidence supporting the jury’s various damages findings. 

We affirm the judgment. 
2

Background

Rodney and Lyndsay Hopper purchased a house on approximately two acres 

of heavily wooded land with a creek. The couple, their three children, and their 

three dogs moved into the house in June 2021. Developer Robin Kelly owned the 

neighboring 147-acre tract, which he—through his company Kelly Custom Homes 

(“KCH”)—planned to develop into a residential community of 200 houses known 

as King’s Ranch.1

 

In August 2021, Kelly’s employees entered the Hoppers’ property and cut 

down trees on 7,000 square feet of their land. The Hoppers told Kelly that he was 

trespassing on their land, and he offered them $200 in compensation. Kelly 

promised to mark the boundary line between the properties, but he never did.

Rodney testified that “where there was a forest now there’s mud and dirt and just, 

you know, crab roots.” 

In September 2021, Kelly’s employees constructed a drainage channel from 

King’s Ranch across the Hoppers’ property to the creek. The workers also 

constructed a “gabion wall.”2

 Lyndsay confronted the construction workers, one 

of whom told her “I’m just doing what, you know, I’m supposed to do.” The 

employee told Lyndsay that Kelly “told him to do it.” 

Regarding the harm to the Hopper’s property caused by Kelly’s ditch, 

Rodney said, “We have an increase in erosion, an increase in sediment, dirt, topsoil 

coming through. After they built the wall we started to get a lot of trash into the

creek and onto our property. Found things, plastic, hockey sticks, like toy hockey 

1 The parties refer to Kelly and KCH collectively as “Kelly,” so we do as well, unless 

otherwise indicated to distinguish between them.

2 One of the Hoppers’ witnesses testified that a gabion wall is “just some rocks 

essentially wrapped in . . . chicken wire, to help slow down the flow of water and to catch big --

big trash, anything like that, sediment but still let the water flow through the voids in the rocks.”
3

stick, beer cans, water bottles, Powerade bottles, empty oil cans. You know, and 

that’s in addition to just general debris, sticks, mud, dirt, rocks.” 

Both Rodney and Lyndsay testified about the mental and emotional toll 

Kelly’s actions caused them. We detail this evidence subsequently.

Lance VanDemark testified as a licensed professional engineer. The 

Hoppers retained VanDemark to review the design and the construction of the 

King’s Ranch project and how the drainage ditch affected the downstream 

properties. VanDemark testified that the drainage ditch “increased the flows to the 

historic discharge point. . . . Increased the velocity. There was additional sediment 

that’s being discharged due to those increases which has caused erosion on the

downstream property.” VanDemark stated that “there was no proposed drainage 

channel” on Kelly’s construction plans, nor did the plans propose a gabion wall. 

Another witness, Robert Young, testified as an expert in land surveying and stated 

that there are absolutely no easements that allow Kelly to “do anything on the 

Hoppers’ property.”

Josh Korman testified as an expert in real estate appraisal. According to 

Korman, Kelly’s actions reduced the value of the Hoppers’ property by $140,000, 

which represented a twenty percent diminution in value.

Kelly testified and did not dispute clearing the trees and vegetation without 

permission or constructing the drainage ditch without permission. He testified that 

he built the gabion wall for “erosion control” and that it was “state mandated.” 

According to Kelly, the city inspector told him where to build the gabion wall and 

he had no discretion. Kelly promised to do whatever he could to remedy the 

situation, but he never heard from the Hoppers until they filed this lawsuit. Kelly 

testified that there has not been any change to the flow of water in and around the 

creek since the Hoppers bought their property.
4

The Hoppers sued Kelly and KCH for common-law trespass and unlawful 

diversion of surface water under section 11.086 of the Texas Water Code. The 

jury found that Kelly and KCH trespassed on the Hoppers’ property, that the 

trespasses were intentional and malicious, and that Kelly and KCH diverted or 

impounded the natural flow of water onto the Hoppers’ property. The jury 

awarded $140,000 in actual damages ($70,000 for the trespass and $70,000 for the 

water diversion), $150,000 in mental anguish damages, $400,000 in exemplary 

damages ($100,000 against Kelly and $300,000 against KCH), attorney’s fees, 

expert fees, post-judgment interest, and costs of court. By a permanent injunction, 

the court ordered Kelly to desist and refrain from entering the Hoppers’ property 

without permission and to desist and refrain from taking any action, including but 

not limited to any further construction or excavation on the neighboring property 

that could direct or increase any surface water flow onto the Hoppers’ property.

Kelly timely appealed.

Standard of Review

When reviewing the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the challenged finding and indulge every 

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 

802, 822 (Tex. 2005). We must credit favorable evidence if a reasonable fact 

finder could and disregard contrary evidence unless a reasonable fact finder could 

not. See id. at 827. To sustain a challenge to the legal sufficiency of the evidence 

supporting a jury finding, the reviewing court must find that: (1) there is a 

complete lack of evidence of a vital fact; (2) the court is barred by rules of law or 

evidence from giving weight to the only evidence offered to prove a vital fact; 

(3) there is no more than a mere scintilla of evidence to prove a vital fact; or (4) the 
5

evidence conclusively established the opposite of a vital fact. Volkswagen of Am.,

Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).

When reviewing the factual sufficiency of the evidence, we examine the 

entire record, considering all the evidence both in favor of and contrary to the 

finding. Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. 

App.—Houston [14th Dist.] 2017, no pet.). When a party attacks the factual 

sufficiency of the evidence pertaining to a finding on which the party did not have 

the burden of proof, we may set aside the finding only if it is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and unjust. Bennett v.

Comm’n for Lawyer Discipline, 489 S.W.3d 58, 66 (Tex. App.—Houston [14th 

Dist.] 2016, no pet.). We consider all the evidence, but we will not reverse the 

judgment unless “the evidence which supports the [] finding is so weak as to [make 

the finding] clearly wrong and manifestly unjust.” Star Enter. v. Marze, 61 S.W.3d 

449, 462 (Tex. App.—San Antonio 2001, pet. denied). The amount of evidence 

necessary to affirm is far less than the amount necessary to reverse a judgment. 

GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—

Houston [14th Dist.] 2001, pet. denied).

We apply these standards mindful that this court is not a fact finder. 

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The trier of 

fact is the sole judge of witnesses’ credibility and the weight afforded their 

testimony. GTE Mobilnet, 61 S.W.3d at 615-16; see also City of Keller, 168 

S.W.3d at 819-20. Therefore, we may not pass upon the witnesses’ credibility or 

substitute our judgment for that of the fact finder, even if the evidence would also 

support a different result. GTE Mobilnet, 61 S.W.3d at 615-16.
6

Analysis

The Supreme Court of Texas ordered the Tenth Court of Appeals to transfer 

this case to our court. See Tex. Gov’t Code § 73.001. We are unaware of any 

conflict between Tenth Court of Appeals precedent and that of this court on any 

relevant issue. See Tex. R. App. P. 41.3.

A. Water Code claim

In his first issue, Kelly argues that the Hoppers cannot recover on their 

Water Code claim because (a) the evidence establishes conclusively that Kelly

constructed improvements to “control overflows and floodwater” and (b) there is 

no evidence that Kelly diverted “surface water” onto the Hoppers’ property. 

The Texas Water Code provides that “[n]o person may divert or impound 

the natural flow of surface waters in this state, or permit a diversion or impounding 

by him to continue, in a manner that damages the property of another by the 

overflow of the water diverted or impounded.” Tex. Water Code § 11.086(a). 

This prohibition does not apply in certain situations:

The prohibition of Subsection (a) of this section does not in any way 

affect the construction and maintenance of levees and other 

improvements to control floods, overflows, and freshets in rivers, 

creeks, and streams or the construction of canals for conveying water 

for irrigation or other purposes authorized by this code. However, this 

subsection does not authorize any person to construct a canal, lateral 

canal, or ditch that obstructs a river, creek, bayou, gully, slough, ditch, 

or other well-defined natural drainage.

Id. § 11.086(c).

Kelly never argued to the jury that his actions were intended to control any 

alleged flooding. Nevertheless, Kelly argues on appeal that the evidence 

conclusively established that Kelly’s actions “were improvements to control floods 
7

and overflows,” and thus he is not liable under section 11.086(a)’s prohibition. To 

support this assertion, he cites a portion of VanDemark’s testimony and 

accompanying exhibits, in which VanDemark stated that Kelly’s construction 

plans did not show a proposed drainage ditch, that the drainage channel was 

constructed without any grading, and that Kelly’s construction plans included a 

proposed detention pond on his land, but Kelly never constructed a detention pond. 

VanDemark testified that a detention pond would have been important “to mitigate 

the excess flow.” Kelly also cites his own testimony that he believed either local 

or state authority required him to build the gabion wall.

This testimony does not establish conclusively that Kelly’s property was 

experiencing flooding or that Kelly built the drainage ditch on the Hoppers’ 

property to control floods. Kelly’s reliance on subsection (c)’s exception is 

unavailing.

Kelly also argues that there is legally insufficient evidence that he diverted 

surface water onto the Hoppers’ property. 

Question No. 11 asked:

Did Robin Kelly divert or impound the natural flow of surface 

water, or permit a diversion or impounding to continue, in a manner 

that damaged the Plaintiffs’ property?

The term “divert” includes increasing the quantity and/or 

velocity of surface water or runoff.

With respect to the natural flow of water from a property of 

higher elevation, a lower estate must receive the surface waters 

naturally flowing thereon from a higher estate, yet it is not required to 

receive these waters except in their natural condition, untouched by 

the hands of man. In other words, the proprietor of higher land is 

entitled to have surface water flow to the lower land, so long as the 

water follows its usual course and runs in its natural quantities.
8

The jury charge did not define “surface water,” and Kelly did not object to 

the lack of a definition. Additionally, Kelly has not directed us to a citation in the 

record where witnesses were asked whether the term “surface water” was a term 

that had a technical or customary meaning. Thus, we must measure the sufficiency 

of the evidence against the commonly understood meaning of “surface water.” 

Fenner v. Samson Res. Co., No. 01-03-00049-CV, 2005 WL 2123043, at *3 (Tex. 

App.—Houston [1st Dist.] Aug. 31, 2005, pet. denied) (mem. op.) (construing 

“surface” according to its plain and ordinary meaning where neither parties’

agreement nor jury charge defined the term); see also Osterberg v. Peca, 12 

S.W.3d 31, 55 (Tex. 2000) (holding, when no objection is made to jury charge, 

sufficiency of evidence is measured against charge given rather than some other 

unidentified law). “[T]he word ‘surface’ has been defined as ‘the upper boundary 

or top of ground or soil, exposed to the air.’” Fenner, 2005 WL 2123043, at *3 

(quoting Oxford English Dictionary 287 (2d ed. 1993)). The ordinary meaning of 

“surface water” reasonably can include water that flows across the surface of a 

parcel of land.

The evidence showed that Kelly constructed a channel or ditch that diverted 

water, most especially rainwater, from his property onto and over the Hoppers’ 

property. VanDemark testified that Kelly’s actions increased the quantity and 

velocity of “runoff water” from Kelly’s property onto the Hoppers’ property. 

Rodney and VanDemark both testified that the diversion created by Kelly damaged 

the Hoppers’ property. The jury reasonably could find from the evidence 

presented that Kelly “divert[ed] or impound[ed] the natural flow of surface water 

. . . in a manner that damaged the Plaintiffs’ property.” See Boatman v. Lites, 970 

S.W.3d 41, 44-45 (Tex. App.—Tyler 1998, no pet.) (evidence that defendant’s 
9

berms diverted surface water, which damaged plaintiffs’ property, supported jury’s 

finding of a section 11.086 violation).

We overrule Kelly’s first issue.

B. Damages

1. Diminution in value

In his second issue, Kelly argues that there is legally insufficient evidence to 

support the jury’s finding that the Hoppers’ property diminished in value as a result 

of Kelly’s challenged actions. According to Kelly, Korman “pulled the 20% 

number out of thin air,” and thus his expert testimony was conclusory and without 

evidentiary value.

Conclusory testimony cannot support a judgment because it is considered no 

evidence. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) 

(reasoning that “if no basis for the opinion is offered, or the basis offered provides 

no support, the opinion is merely a conclusory statement and cannot be considered 

probative evidence”); see also Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) 

(“When the 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.”). An expert’s testimony is conclusory 

when the expert asserts a conclusion with no basis. See Pollock, 284 S.W.3d at 

818; see also Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 159 (Tex. 

2012) (concluding that property valuations may not be based on the owner’s or the 

expert’s ipse dixit—that is, they “may not simply echo the phrase ‘market value’ 

and state a number to substantiate [the] diminished value claim; [the expert] must 

provide the factual basis on which his opinion rests”). The expert must link his 

conclusions to the facts, explaining the basis of his assertions. See Coastal Transp.
10

Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (“[I]t is the 

basis of the witness’s opinion, and not the witness’s qualifications or his bare 

opinions alone, that can settle an issue as a matter of law.”). Asking the jury to 

take the expert’s word for it because of his status as an expert will not suffice. See

Pollock, 284 S.W.3d at 816.

As a general rule the proper measure of damages in cases involving injury to 

real property is “the cost to restore or replace, plus loss of use for temporary injury, 

and loss in fair market value for permanent injury.” Gilbert Wheeler, Inc. v.

Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 481 (Tex. 2014). The Texas 

Supreme Court has cautioned that this rule should be applied with flexibility and 

with consideration of the facts and circumstances of the case. See id. When 

valuing real property, the comparable sales method of determining the market 

value of real property is a traditional method—and the preferred method—of 

determining the market value of real property. See City of Harlingen v. Estate of

Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). “Under a comparable sales 

analysis, the appraiser finds data for sales of similar property, then makes upward 

or downward adjustments to these sales prices based on differences in the subject 

property.” Id. Making adjustments is particularly appropriate for real estate 

experts to support their appraisal opinions with their experience. See Williams v. 

State, 406 S.W.3d 273, 291 (Tex. App.—San Antonio 2013, pet. denied) 

(analyzing expert market value opinions in a condemnation proceeding).

Korman testified that he has been a certified general real estate appraiser for 

fifteen years. The Hoppers asked him “to appraise the property basically in its 

impaired position and unimpaired and if there was any diminution in value.” He 

reviewed documents produced in discovery, made a site inspection, looked at 

historical imagery of the property, and gathered data on comparable sales. He 
11

analyzed what the value of the Hoppers’ property would be “as if . . . the actions of 

the . . . defendants had never happened.” Korman started with analyzing the North 

Texas market and then narrowed “all the way down to the Hoppers’ property itself 

and the neighborhood that it sits in.” He gathered “market information,” 

specifically “comparable sales. Sales of other similar type homes.” In other

words, he “looked at other comparable properties that had sold to come up with the 

value of the property as unimpaired.”

When developing his appraisal opinion of the diminution in value of the 

Hoppers’ property, Korman reviewed four comparable sales, three on the Hoppers’ 

street and another one “on the other side of I-35 that had some similar features to 

the Hoppers’ property.” He later clarified that the fourth comparable was 

“probably four or five miles away, but it was in a subdivision and it actually 

backed up to a wooded creek . . . [and] was about two acres in size.” 

In Korman’s opinion, the value of the Hoppers’ property as “unimpaired” 

was $700,000, but it suffered a diminution in value as a result of Kelly’s actions 

and was worth $560,000. Korman opined that the destruction of the “natural 

barrier” on one side of the property and the lack of privacy and security impaired 

the property’s value, as did the encumbrance of the ditch and gabion wall.

The record reflects that Korman used comparable properties—other homes 

on the Hoppers’ street and a nearby home with comparable property features—to 

derive a comparable sales approach of an unimpaired value for the home and that 

his reduction of $140,000 was explained by him as being based on the damage 

caused by the tree removal and the water diversion. Kelly had an opportunity to, 

and did, cross-examine Korman, but Kelly offered no competing testimony on the 

value of the Hoppers’ property, either in its unimpaired or impaired state.
12

Based on this record, we cannot agree that Korman’s testimony was 

conclusory or ungrounded on facts. There is some evidence to support the 

economic damages, and we overrule Kelly’s second issue. See LaSalle Pipeline

L.P. v. Donnell Lands, L.P., 336 S.W.3d 306, 317 (Tex. App.—San Antonio 2010, 

pet. denied) (expert’s comparable-sales analysis was not conclusory and supported 

finding of diminution in value).

In his third issue, Kelly argues that there is no evidence to support the jury’s 

“arbitrary division” of damages attributable to the Water Code claim and to the 

trespass claim. Of the $140,000 diminution, Korman testified that 

“[a]pproximately 50 percent” was attributable to the tree and vegetation removal 

and the other fifty percent was attributable to the water diversion. He tied the 

separate actions—tree removal or water diversion—to specific and discrete 

damage to the Hoppers’ property and opined that each harm lessened the property 

value by approximately $70,000. Specifically, the tree removal “eroded” the 

privacy and security of the property, and the drainage ditch is an encumbrance on 

the property that does not benefit the Hoppers.

As just discussed, we conclude that legally sufficient evidence supports the 

jury’s compensatory damages findings. Kelly does not cite any authority 

suggesting that an expert improperly allocates property damage caused by two 

separate harms. We overrule Kelly’s third issue.

2. Mental anguish damages

In his fourth issue, Kelly argues that there is legally and factually 

insufficient evidence to support any award for compensable mental anguish. 

Mental anguish is a “relatively high degree of mental pain and distress” that 

is “more than mere disappointment, anger, resentment or embarrassment, although 
13

it may include all of these.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.

1995). “[A]n award of mental anguish damages will survive a legal sufficiency 

challenge when the plaintiffs have introduced direct evidence of the nature, 

duration, and severity of their mental anguish, thus establishing a substantial 

disruption in the plaintiffs’ daily routine.” Id.; see also Serv. Corp. Int’l v. Guerra, 

348 S.W.3d 221, 231 (Tex. 2011) (stating that when an occurrence is of the type 

for which mental anguish damages are recoverable, “evidence of the nature, 

duration, and severity of the mental anguish is required”). When a claimant fails to 

present direct evidence of the nature, duration, or severity of mental anguish, 

courts apply a traditional no-evidence standard to determine whether the record 

reveals any evidence of “a high degree of mental pain and distress” that is more 

than mere worry, anxiety, vexation, embarrassment, or anger, to support any award 

of damages. Parkway Co., 901 S.W.2d at 444. We are charged with conducting a 

meaningful evidentiary review of such awards, just as we do for economic 

damages. Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002); Saenz v. Fidelity & 

Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). 

Kelly does not dispute that mental anguish is compensable when it results 

from real property damage caused by an intentional or malicious trespass and if the

mental anguish is proven in accordance with supreme court precedent. Our court 

and others have concluded that mental anguish damages are recoverable in some 

cases when the defendant’s conduct is intentional or malicious. See Sankaran v. 

VFS Servs. (USA) Inc., ---S.W.3d---, 2024 WL 3188610, at *5 (Tex. App.—

Houston [14th Dist.] June 27, 2024, pet. filed); Parenti v. Moberg, No. 04-06-

00497-CV, 2007 WL 1540952, at *3 (Tex. App.—San Antonio May 30, 2007, pet. 

denied) (mem. op.); Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 
14

S.W.2d 730, 753-57 (Tex. App.—Houston [14th Dist.] 1998, no pet.).3 The jury 

was instructed not to answer the mental anguish damage question unless it found 

that Kelly had trespassed intentionally. After finding that Kelly trespassed 

intentionally, the jury awarded the Hoppers $150,000 in mental anguish damages 

resulting from the intentional trespass.4

 

a. Compensable mental anguish

We first consider Kelly’s arguments that the Hoppers did not prove with 

legally or factually sufficient evidence that they suffered compensable mental 

anguish under Parkway Company. 

Both Rodney and Lyndsay testified about the mental anguish they suffered, 

which continued for two years. Rodney testified that “90 percent of our marriage 

we’ve been dealing with this. It is a dark cloud that’s hanging over -- hanging over 

everything.” The couple took time away from their kids and their jobs and “burned 

through [their] savings.” Rodney felt like he lost two years of his life and two 

years of his children’s lives to this “dark thing.” Rodney said he and Lyndsay have 

felt stress, anxiety, helplessness, and anger and that there are times “when it breaks 

[Lyndsay] down.” Lyndsay suffered hair loss because of the stress. The couple 

was forced to cancel their planned backyard wedding, which was “devastating” to

Lyndsay.

This constitutes direct evidence of the nature, duration, and severity of 

appellees’ mental anguish sufficient to survive a legal sufficiency challenge. See, 

e.g., Anderson v. Durant, 550 S.W.3d 605, 620 (Tex. 2018) (evidence that 

3 In 1997, the supreme court reserved the question of whether mental anguish arising 

from property damage might be available when a degree of culpability higher than simple 

negligence is found. City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex. 1997). 

4 The jury also found that Kelly’s trespass was committed with malice, but the mental 

anguish damage question was not conditioned on an affirmative finding of malice.
15

plaintiff’s familial relationships were impacted, his demeanor changed, he was 

unable to sleep, and he was treated for anxiety and depression was some evidence 

he suffered compensable mental anguish); Parenti, 2007 WL 1540952, at *3-4

(crying, vomiting, loss of sleep, and missing work held legally sufficient to support 

recoverability of mental anguish); Carpenter v. The Holmes Builders, Inc., No. 11-

02-00132-CV, 2004 WL 306130, at *6 (Tex. App.—Eastland Feb. 19, 2004, pet. 

denied) (mem. op.) (testimony that life was “on hold” for years and feelings of 

anxiety, embarrassment, helplessness, worry, and stress, coupled with eye 

infection, loss of sleep, and crying, was legally sufficient evidence of mental 

anguish); Teledyne Expl. Co. v. Klotz, 694 S.W.2d 109 (Tex. App.—Corpus Christi 

1985, writ ref’d n.r.e.) (plaintiff’s testimony that he was disoriented, shocked, felt 

violated, and was choked up was some evidence of mental anguish stemming from 

defendant’s bulldozing of trees). We therefore hold that the Hoppers presented 

legally sufficient evidence of compensable mental anguish.

Further, after reviewing all of the evidence relevant to mental anguish, we 

hold that the credible evidence supporting the finding is not so weak, or so contrary 

to the overwhelming weight of all the evidence, that the award should be set aside 

and a new trial ordered. The jury’s finding that the Hoppers suffered compensable 

mental anguish is not clearly wrong and unjust. We reject Kelly’s arguments that 

the Hoppers failed to present legally and factually sufficient evidence that they 

suffered compensable mental anguish as a result of Kelly’s intentional trespass.

Kelly argues that Rodney and Lyndsay testified only to the existence of 

“mere emotions,” citing Waste Disposal Center, Inc. v. Larson, 74 S.W.3d 578, 

585 (Tex. App.—Corpus Christi 2002, pet. denied) (finding no evidence of mental

anguish in trespass case where plaintiff’s testimony only “refer[red] to the

existence of ‘mere emotions’”). We disagree. Appellees’ testimony described 
16

more than mere “worry and anxiety,” though it certainly included those emotions. 

In addition to experiencing the emotions of stress, anger, helplessness, and anxiety, 

they also testified that they felt that they had “lost” two years of their lives and 

their children’s lives. They lost time from their jobs and spent their savings. 

Lyndsay suffered physical manifestations of her stress. This type of direct 

evidence satisfies Parkway Company. See Carpenter, 2004 WL 306130, at *6.

We overrule Kelly’s fourth issue.

b. Amount of mental anguish damages

In his fifth issue, Kelly assails the amount of mental anguish damages, 

contending that it lacks any “rational basis” in the evidence. He relies heavily on 

Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023) (plurality op.), but that case is a 

plurality opinion lacking precedential value,5 and a majority of justices on the 

supreme court have not adopted some of the standards he advocates in his brief. 

Nonetheless, Kelly notes several applicable principles guiding our review of the 

amount of a mental anguish award. Broadly speaking, claimants must present 

evidence sufficient to justify the amount awarded. See Hancock v. Variyam, 400 

S.W.3d 59, 68 (Tex. 2013). While the impossibility of any exact evaluation of 

mental anguish requires that juries be given a measure of discretion in finding 

damages, that discretion is limited. Bentley, 94 S.W.3d at 606. Juries must find an 

amount that “would fairly and reasonably compensate” for the loss; they cannot 

“simply pick a number and put it in the blank.” Id. Compensation can only be for 

mental anguish that causes “substantial disruption in . . . daily routine” or “a high 

degree of mental pain and distress.” Id. (citing Parkway Co., 901 S.W.2d at 444). 

5 See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); D.M. Diamond 

Corp. v. Dunbar Armored, Inc., 124 S.W.3d 655, 659 n.6 (Tex. App.—Houston [14th Dist.] 

2003, no pet.).
17

And the amount cannot be based on mere passion, prejudice, or improper motives

or measurements. Gregory, 670 S.W.3d at 564 n.16 (plurality op.); id. at 570 

(Devine, J., concurring); id. at 576 (Bland, J., concurring in part). 

We conclude that the $150,000 amount awarded, though high, is reasonably 

supported by the evidence described above, given the nature, duration, and severity 

of appellees’ mental anguish. The Hoppers testified to experiencing mental 

anguish daily over an extended period of two years. The amount awarded is not 

unreasonable when considered in light of the other compensatory damage awards. 

See Carpenter, 2004 WL 306130, at *6. Moreover, courts have upheld 

comparable mental anguish awards in other non-personal injury cases, including 

cases concerning significant damage to real property. MBR & Assocs., Inc. v. Lile, 

No. 02-11-00431-CV, 2012 WL 4661665, at *12-13 (Tex. App.—Fort Worth Oct. 

4, 2012, pet. denied) (mem. op.) (affirming $250,000 mental anguish award for 

damage to plaintiffs’ home foundation that made house uninhabitable); Carpenter, 

2004 WL 306130, at *6 (rejecting legal and factual sufficiency challenge to 

$150,000 mental anguish award in real property damage case); see also Anderson, 

550 S.W.3d at 620-21 (upholding remitted mental anguish damages of $150,000 in 

defamation case). 

Kelly directs us to Lakeside Village Homeowners Association, Inc. v. 

Belanger, 545 S.W.3d 15, 37 (Tex. App.—El Paso 2017, pet. denied) ($3,500 and 

$1,500 mental anguish awarded for trespass), and Larson, 74 S.W.3d at 585

($25,000 mental anguish damages). The courts of appeals in these cases reversed 

the mental anguish awards because the claimants presented no legally sufficient 

evidence of compensable mental anguish, not because the awards were excessive. 

Kelly’s cited cases do not support the proposition that the jury’s mental anguish 
18

award here is outside the range of fair and reasonable compensation, given the 

evidence of compensable mental anguish that the Hoppers presented. 

Kelly does not contend that appellees’ counsel engaged in the type of 

irrelevant, “unsubstantiated anchoring” that a majority of supreme court justices 

agreed in Gregory is impermissible. See Gregory, 550 S.W.3d at 557-58 (plurality

op.); id. at 569 (Devine, J., concurring). Additionally, we do not see any basis in 

the record for concluding that the mental anguish award was the result of passion, 

prejudice, or improper motives or measurements.

6

 The jury heard about the nature,

duration, and severity of the Hoppers’ mental anguish and that the Hoppers took

time away from their jobs and their children and drained their savings. The jury 

awarded $50,000 more than requested by counsel during closing argument, but that 

is permissible so long as it reflects a reasonable determination based on the 

evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex. 2000) (a jury may 

award more damages than requested by a party if there is evidence supporting the 

higher award of damages). The jury reasonably could have concluded that the 

mental anguish damages adequately compensated the Hoppers for their distress, 

6 Kelly points out that the Hoppers’ counsel suggested a per diem guide for mental 

anguish damages during closing argument. Appellees’ counsel urged: 

[Y]ou saw and heard about the pain, the stress, the anguish my clients 

have gone through. Saw it on their faces. Heard it in their voices. . . .

As of today it’s been 697 days since the [bulldozers] rolled in. 697 days 

that they’ve been living with this. How do you put a dollar amount on that? How 

much -- how much per day do you think they should be compensated? . . . 

Let’s say you go back there and y’all collectively decide that it should be 

$150 a day. That’s $75 per person. If you multiply that by 697 days that’s just 

over $100,000.

I would submit to you that at least $100,000 is warranted in this case.

Kelly did not object to this argument as an impermissible measurement for mental 

anguish, and in any event we cannot conclude the suggestion resulted in an improper judgment 

when the ultimate damage amount found by the jury has a reasonable evidentiary basis. See Tex. 

R. App. P. 44.1(a).
19

their financial worries, and the loss of enjoyment of their property for two years. 

We conclude that the amount awarded is not excessive. 

We overrule Kelly’s fifth issue.

3. Exemplary damages

In his sixth issue, Kelly argues that there is legally and factually insufficient 

evidence to support the jury’s exemplary damages award, namely that he or his 

company acted with malice. 

The jury was asked if it found by clear and convincing evidence that Kelly’s 

and KCH’s trespasses were committed with malice. The charge defined malice as:

1. a specific intent by [Kelly and/or KCH], to cause substantial injury 

to Plaintiffs; or

2. an act or omission by [Kelly and/or KCH],

a. which when viewed objectively from the standpoint of [Kelly 

and/or KCH], at the time of its occurrence involves an extreme 

degree of risk, considering the probability and magnitude of the 

potential harm to others; and

b. of which [Kelly and/or KCH], has actual, subjective 

awareness of the risk involved, but nevertheless proceeds with 

conscious indifference to the rights, safety, or welfare of others.

The evidence established the Kelly entered the Hoppers’ property without 

permission and bulldozed dozens of trees. Even though he was told that he was 

trespassing on the Hoppers’ land, he returned and constructed a permanent 

drainage ditch that diverted substantial volumes of water onto the Hoppers’ 

property. These acts involved an extreme degree of risk of damage to the Hoppers’ 

property. See Boatman, 970 S.W.2d at 46 (“destruction of a sizable portion of real 

property by erosion was, objectively, serious harm, and [ ] the diversion of surface 

waters by the Boatmans constituted an extreme danger that that particular harm 

would occur”).
20

The evidence also established that Kelly knew the risks involved but 

proceeded with conscious indifference to the Hoppers’ rights. Kelly is an 

experienced developer and submitted development plans for governmental 

approval. Those plans did not involve cutting down the Hoppers’ trees or 

constructing a drainage ditch on their property. The Hoppers told Kelly that he 

was trespassing on their property, and they told Kelly’s employees to stop their 

work. The Hoppers were ignored, and the work continued. This shows that Kelly 

acted with conscious indifference. Vaughn v. Drennon, 202 S.W.3d 308, 342 (Tex. 

App.—Tyler 2006, pet. denied) (defendant’s acts of clearing land behind plaintiffs’ 

property and building earthen dams, which caused unprecedented flooding onto 

plaintiffs’ land, involved an extreme degree of risk of which the defendant had 

actual, subjective awareness and of which he consciously disregarded); see also

Bily v. Omni Equities, Inc., 731 S.W.2d 606, 614 (Tex. App.—Houston [14th 

Dist.] 1987, writ ref’d n.r.e.) (defendant who was aware his conduct blocked 

drainage and intentionally permitted impounding to continue was liable for 

punitive damages.); Pargas of Longview, Inc. v. Jones, 573 S.W.2d 571, 574 (Tex. 

App.—Texarkana 1978, no writ) (“Pargas’s agents made the entry upon Jones’s 

premises willfully and deliberately after having been warned no[t] to do so” and 

the invasion of property was an unlawful entry).

Kelly contends that cutting down the Hoppers’ trees was merely a mistake 

and that he believed building the drainage canal was necessary for erosion control. 

Kelly’s reasons for cutting down the trees and building the ditch are disputed facts

that the jury reasonably could have resolved against him. See Sw. Bell Tel. Co. v. 

Garza, 164 S.W.3d 607, 627 (Tex. 2004). The jury could have found Kelly’s

testimony about his “good faith, reasonable belief” to have been not credible. See 

City of Keller, 168 S.W.3d at 822.
21

We hold that there is some evidence to support the jury’s exemplary 

damages award. We further hold, after reviewing all the evidence in the record, 

that there is factually sufficient evidence as well. We overrule Kelly’s fifth issue.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell

Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.