pjc-oil-and-gas-2024-lib

PJC 313.8

D AMAGES

that evidence on cost to repair was not; no discussion that plaintiff would be legally limited to one or the other). As of yet, there is no guidance from the courts on what level of discrepancy between the two damages measures will trigger a mandatory selection of the lesser measure. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481; Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004). For possible con trary authority, see Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co. , 747 S.W.2d 785 (Tex. 1988) (DTPA case for real property damage; court stated that party has right to judgment on theory entitling him to most favorable relief). As a result of the possible application of the economic feasibility exception, a claimant may wish to submit evidence on both measures of damages to ensure a recovery. Another effect of the economic feasibility exception is that a defendant may wish to submit evidence on what it believes is a lesser measure of damages in an effort to trig ger the exception. See Hall v. Hubco , 292 S.W.3d 22 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (plaintiff not required to prove both measures; burden of proof is on defendant to prove that one would be lesser; court affirmed award of loss of value even though cost to repair may have been less, because there was no evidence of cost to repair); ExxonMobil Corp. v. Lazy R Ranch, L.P. , 511 S.W.3d 538 at n.5 (Tex. 2017) (citing Hall in connection with discussion on economic feasibility exception); Gilbert Wheeler, Inc. , 449 S.W.3d at 479 (citing Hall in connection with the concept that dam age principles apply across all causes of action). Prejudgment interest. Instructing the jury not to add interest is suggested because prejudgment interest, if recoverable, will be calculated by the court at the time of judgment. If interest paid on an obligation is claimed as an element of damages, it may be necessary to modify the instruction on interest.

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