Robert Gulledge and Diana Gulledge v. Warren Wester and Theodore Sullivan ( 2018 )

Opinion issued August 28, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00488-CV
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ROBERT GULLEDGE AND DIANA GULLEDGE, Appellants
V.
WARREN WESTER AND THEODORE SULLIVAN, Appellees
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 16-CV-1022
CONCURRING OPINION
The majority does not reach whether blocking the view of another landowner
is actionable as a nuisance claim. Instead, the majority holds that, even if such a
claim is actionable, Wester and Sullivan did not provide legally sufficient evidence
to support the claim. I take a different approach. I would hold that blocking a view
of another landowner is not actionable under nuisance law. As a result, I express no
opinion on what amount of evidence would be sufficient if it were actionable.
Accordingly, I concur in the judgment only.
This suit involved claims for private nuisance. Wester and Sullivan asserted
claims of intentional nuisance and negligent nuisance, asserting that the Gulledges’
boathouse, if completed, would significantly impair their views of the water and
cause them damage as a result. The jury found only negligent nuisance. In their
first issue, the Gulledges argue that evidence supporting the negligent nuisance
claims is legally insufficient.
A negligent nuisance “claim is governed by ordinary negligence principles.”
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016).
Accordingly, Wester and Sullivan were required to prove that the Gulledges owed
them a duty, they breached the duty, and Wester and Sullivan suffered damages as a
proximate cause of the breach. See id. In addition, Wester and Sullivan had to
prove that the Gulledge’s “negligent conduct caused a nuisance, which in turn
resulted in [Wester’s and Sullivan’s] damages.” Id.
“A ‘nuisance’ is a condition that substantially interferes with the use and
enjoyment of land by causing unreasonable discomfort or annoyance to persons of
ordinary sensibilities attempting to use and enjoy it.” Holubec v. Brandenberger,
111 S.W.3d 32, 37 (Tex. 2003); see also Crosstex, 505 S.W.3d at 593–94 (affirming
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Holubec’s definition of nuisance). To be a nuisance, the injury must be “an invasion
of a plaintiff’s legal rights.” Crosstex, 505 S.W.3d at 594. As a result, a nuisance
does not refer “to a cause of action . . . but instead to the particular type of legal
injury that can support a claim or cause of action seeking legal relief.” Id. (emphasis
in original). In addition, the interference must be substantial and the discomfort and
annoyance must be unreasonable. Id. at 595.
As the Gulledges point out, Texas courts have long and consistently held that
complaints about aesthetics of neighboring properties will not support a nuisance
finding. See, e.g., Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528, at *5
(Tex. App.—Austin May 19, 2017, pet. denied) (mem. op.) (holding “‘aesthetic’
nuisance claims are not recognized in Texas”); Jeansonne v. T–Mobile W. Corp.,
No. 01-13-00069-CV, 2014 WL 4374118, at *8 (Tex. App.—Houston [1st Dist.]
Sept. 4, 2014, no pet.) (mem. op.) (holding “Texas courts have not found a nuisance
merely because of aesthetic-based complaints”); Rankin v. FPL Energy, LLC, 266
S.W.3d 506, 509 (Tex. App.—Eastland 2008, pet. denied) (“Texas courts have not
found a nuisance merely because of aesthetical based complaints.”); Jones v.
Highland Memorial Park, 242 S.W.2d 250, 253 (Tex. Civ. App.—San Antonio
1951, no writ) (rejecting aesthetical complaints of cemetery in neighborhood);
Shamburger v. Scheurrer, 198 S.W. 1069, 1071 (Tex. Civ. App.—Fort Worth 1917,
no writ) (rejecting aesthetical complaints of lumber yard in neighborhood).
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Aesthetical complaints concern the loss of a desirable view on or across
another land-owner’s property. See Rankin, 266 S.W.3d at 512. “If Plaintiffs have
the right to bring a nuisance action because a neighbor’s lawful activity substantially
interferes with their view, they have, in effect, the right to zone the surrounding
property.” Id. Accordingly, aesthetics are not relevant to a nuisance complaint. See
Ladd v. Silver Star I Power Partners, LLC, No. 11-11-00188-CV, 2013 WL
3377290, at *3 (Tex. App.—Eastland 2013, pet. denied) (holding “as a matter of law
aesthetic impact will not support a claim for nuisance”); Jeansonne, 2014 WL
4374118, at *12 (affirming trial court’s rendition of summary judgment on nuisance
claim based on aesthetics).
Likewise, there is a “well-established rule that a landowner may, in the
absence of building restrictions or regulations, build on his property as he likes even
if it obstructs a neighbor’s light, air, or vision; depreciates the neighboring land’s
value; or the builder acts with improper motive.” Payne v. Edmonson, No. 01-96-
00792-CV, 1999 WL 350928, at *4 (Tex. App.—Houston [1st Dist.] June 3, 1999,
pet. denied) (mem. op; not designated for publication); accord Boys Town, Inc. v.
Garrett, 283 S.W.2d 416, 420–21 (Tex. Civ. App.—Waco 1955, writ ref’d n.r.e.);
Dall. Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex. Civ. App.—Dallas 1925,
no writ). “This has been the law, and it has been followed by an unbroken line of
authorities.” Harrison v. Langlinais, 312 S.W.2d 286, 288 (Tex. Civ. App.—San
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Antonio 1958, no writ); see also Scharlack v. Gulf Oil Corp., 368 S.W.2d 705, 707
(Tex. Civ. App.—San Antonio 1963, no writ) (“It is our opinion that the appellants
have alleged nothing more than an interference with their view.”).
Wester and Sullivan argue their claim is not based on aesthetics. They assert,
“There is a difference between arguing a fence next door is ‘ugly,’ and claiming
excessively tall construction blocks a desirable and economically beneficial view
from a person’s property.” They cite no legal authority for this proposition. I find
no justification for claiming that creating an ugly view is not actionable while
blocking a pretty view is. In either situation, the complaint is about aesthetics,
claiming a right to a particular view of property outside the plaintiffs’ own property.
They argued at trial that the size of the Gulledges’ boathouse was out of
character with the neighborhood. This is an aesthetical claim. See Serafine, 2017
WL 2224528, at *5 (characterizing claim that fence was “out of scale to the
property” as aesthetical complaint); Champion Forest Baptist Church v. Rowe, No.
01-86-00654-CV, 1987 WL 5188, at *2 (Tex. App.—Houston [1st Dist.] Jan. 8,
1987, no writ) (mem. op.; not designated for publication) (holding “conditions that
annoy because they are disagreeable, unsightly, and undesirable are not nuisances”).
Even if Wester and Sullivan were correct that their claims were not based on
aesthetics, however, it is unquestionable that their complaints were based on their
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views being blocked. This is not actionable. See Payne, 1999 WL 350928, at *4;
Scharlack, 368 S.W.2d at 707.
Wester and Sullivan further argue that the line of cases excluding aesthetics
as a basis for finding nuisance were overruled by Crosstex. In Crosstex, the Supreme
Court of Texas undertook the task of clarifying private nuisance law. 505 S.W.3d
at 588. The court affirmed the existing definition of a nuisance. Id. at 593–94. It
clarified that a nuisance refers to a legal injury. Id. at 594–95. As a part of that legal
injury, the court emphasized the need for substantial interference and unreasonable
discomfort or annoyance to maintain a claim. Id. at 595–96. For “unreasonable
discomfort or annoyance,” the court emphasized that the inquiry is focused on the
effect of the conduct, not the conduct itself, id. at 596–99; that the test is objective,
id. at 599–600; and that numerous factors are considered in determining
unreasonableness and substantial interference, id. at 600–01. Next, the court
clarified the distinctions between intentional nuisance, negligent nuisance, and
strict-liability nuisance. Id. at 601–09. It noted that most of the considerations for
nuisance are questions of fact. Id. at 609. “A court may decide the issues as a matter
of law only if the underlying facts are undisputed or, in light of all the evidence,
‘reasonable minds cannot differ.’” Id. Finally, the court discussed the type of
remedies available for a claim based on nuisance. Id. at 609–612.
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Nowhere in the court’s detailed review of nuisance law does the court mention
nuisance claims based on aesthetics or claims based on a blocked view. Nor does it
cite to the line of cases I have identified pertaining to aesthetics and blocked views.
In addition, the court explained in Crosstex that the opinion was intended to clarify
areas of nuisance law which have caused confusion. See id. at 591. There has been
no confusion in Texas about whether aesthetical complaints can support a nuisance
finding. Instead, Texas courts have consistently and uniformly held that they cannot.
See, e.g., Serafine, 2017 WL 2224528, at *5 (holding “‘aesthetic’ nuisance claims
are not recognized in Texas”); Jeansonne, 2014 WL 4374118, at *8 (holding “Texas
courts have not found a nuisance merely because of aesthetic-based complaints”);
Rankin, 266 S.W.3d at 513 (“Because Texas law does not provide a nuisance action
for aesthetical impact, the trial court did not err by granting FPL’s motion for partial
summary judgment and by instructing the jury to exclude from its consideration the
aesthetical impact of the wind farm.”).
Likewise, there is no confusion about whether a blocked view is actionable as
a nuisance. See Payne, 1999 WL 350928, at *4 (recognizing well-established law
that landowner can build on his property even if it blocks view of other landowners);
Harrison, 312 S.W.2d at 288 (holding right to build upon land, even if it blocks view
of others, is “one of the incidents of fee simple ownership”); Scharlack, 368 S.W.2d
at 707 (“Under the rule recognized in this State, a building or structure cannot be
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complained of as a nuisance merely because it obstructs the view of neighboring
property”); Boys Town, 283 S.W.2d at 421 (“Our Supreme Court[] has not seen fit
to disturb or modify the above rule, although it was written in 1860.”); cf. Dall. Land
& Loan Co., 276 S.W. at 474 (“It is a matter of common knowledge that automobiles
and garages, as ordinarily used by people the country over, are not, and do not by
such use become, nuisances.”).
Because I would hold that, as a matter of law, Wester’s and Sullivan’s claims
are not actionable, I express no opinion on whether there is sufficient evidence to
support such claims. Accordingly, I concur in the judgment.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Brown, and Caughey.
Justice Higley, concurring in the judgment.
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