1717 Bissonnet, L.L.C. v. Penelope Loughhead ( 2015 )

ACCEPTED
14-14-00589-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/8/2015 5:35:50 PM
No. 14-14-00589-CV CHRISTOPHER PRINE
CLERK
In the
Fourteenth Court of Appeals FILED IN
14th COURT OF APPEALS
Houston, Texas HOUSTON, TEXAS
4/8/2015 5:35:50 PM
CHRISTOPHER A. PRINE
1717 BISSONNET, LLC, Clerk
Appellant,
vs.
PENELOPE LOUGHHEAD, ET AL,
Appellees.
ON APPEAL FROM THE 157TH JUDICIAL DISTRICT
COURT OF HARRIS COUNTY, TEXAS
APPELLANT’S BRIEF
Ramón G. Viada III
State Bar No. 20559350
VIADA & STRAYER
17 Swallow Tail Court, Suite 100
The Woodlands, Texas 77381
(281) 419-6338
(281) 661-8887 (Fax)
Email: rayviada@viadastrayer.com
H. Fred Cook
State Bar No. 04732500
WILSON, CRIBBS & GOREN, P.C.
2500 Fannin Street
Houston, Texas 77002
(713) 222-9000
(713) 229-8824 (Fax)
Email: hfcook@wcglaw.net
ATTORNEYS FOR APPELLANT
1717 BISSONNET, LLC
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
I. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The Project & Its Surroundings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Pre-Suit Controversy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Liability Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Alleged Future Impacts of the Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Traffic Congestion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Shadow Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3. Invasion of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. Foundation Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Excessive Garage Lighting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. Construction Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. Diminution of Market Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
E. Pertinent Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V. SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ii
VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. No Tort Finding Supports the Damage Award . . . . . . . . . . . . . . . . . . . . . . . 21
C. The Plaintiffs Waived Damages by Failing to Request the District
Court to Submit a Claim for Which Damages Are Recoverable . . . . . . . . . . 25
D. No Evidence Exists to Prove That Plaintiffs’ Damages Were
Proximately Caused by Any Actionable Nuisance . . . . . . . . . . . . . . . . . . . . 26
E. No Evidence Supports the Applicability of Strict Liability . . . . . . . . . . . . . . 29
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. Tyler v. Likes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. Rylands and the Restatement: Strict Nuisance Liability in Texas for
Ultrahazardous and Inherently Dangerous Conditions . . . . . . . . . . . . 34
4. Strict Liability Does Not Apply to 1717's Proposed
Apartment Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
F. No Pleadings Exist to Support Claims Based on Excessive Light and
Construction-related Annoyances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
G. There Is No Evidence That the Project, If Built, Will Substantially
Interfere with the Use and Enjoyment of Non-Abutting Plaintiff
Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. No Non-Abutting Plaintiff Will Experience Foundation
Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2. Any Increase of Traffic on Public Streets Will Not Constitute
Substantial Interference with the Use and Enjoyment of the
Non-Abutting Plaintiffs’ Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3. Shadow from the Tower Will Not Constitute Substantial
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iii
4. Visual Access to the Non-Abutting Plaintiffs’ Yards and
Window Exteriors Will Not Constitute Substantial Interference
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5. The Garage Lighting Will Not Constitute Substantial
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6. Construction Activity Will Not Constitute Substantial
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
H. Three Plaintiffs Failed to Prove Ownership . . . . . . . . . . . . . . . . . . . . . . . . . 50
I. 1717 Should Recover Taxable Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
VII. PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
APPENDIX
1. Jury Charge (CR 730-40)
2. May 1, 2014, Opinion & Order (CR 1199-1217)
3. Final Judgment (CR 1271-75)
4. Artist Drawings (DX 43)
5. Diagram (DX 167)
6. Defendant’s Charge Objections (14 RR 14-30)
iv
IDENTITY OF PARTIES AND COUNSEL
PARTIES TO THE TRIAL COURT’S ORDER:
1717 Bissonnet, LLC Defendant/Appellant
Luong Nguyen Plaintiffs/Appellees
Lam Nguyen and Katherine Hoang, jointly
Jamie Flatt
Penelope Loughhead
Donald Verplanken
Norman and Suannah Rund, jointly
Achim and Diana Bell, jointly
Jeanne Meis
Mary Van Dyke
Ralph and Leslie Miller, jointly
Yin and Surong Zhang, jointly
Martha Gariepy
Stephen Roberts
Suzanne Powell
Michelle Jennings and Michael Tetzlaff, jointly
James and Allison Clifton, jointly
Kimberly Bell
Richard and Mary Baraniuk, jointly
Kenneth Reusser and Xanthi Couroucli, jointly
Earle Martin
Dinzel Graves
Sarah Morian
Michael Clark
Marc Favre-Massartic
Raja Gupta
Laura Lee & Dico Hassad
Peter & Adriana Oliver
Ed Follis
Frank & Jeanette Stokes
Steven Lin
Yi-Wen Michelle Pu
Howard Epps
Phyllis Epps
v
TRIAL AND APPELLATE COUNSEL:
For Appellant:
Ramón G. Viada III Trial and Appellate Counsel
State Bar No. 20559350
VIADA & STRAYER
17 Swallow Tail Court, Suite 100
The Woodlands, Texas 77381
(281) 419-6338
(281) 419-8137 (Fax)
Email: rayviada@viadastrayer.com
H. Fred Cook Trial and Appellate Counsel
State Bar No. 04732500
WILSON, CRIBBS & GOREN, P.C.
2500 Fannin Street
Houston, Texas 77002
(713) 222-9000
(713) 229-8824 (Fax)
Email: hfcook@wcglaw.net
For Appellees:
Jean C. Frizzell Trial and Appellate Counsel
State Bar No. 07484650
REYNOLDS, FRIZZELL, BLACK, DOYLE,
ALLEN AND OLDHAM LLP
1100 Louisiana Street, 3500
Houston, Texas 77002
713-485-7200
713-485-7250 (Fax
Email: jfrizzell@reynoldsfrizzell.com
vi
INDEX OF AUTHORITIES
Cases Page(s)
Albig v. Mun. Auth.y of Westmoreland County,
502 A.2d 658 (Pa. Super. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Allen v. City of Tex. City,
775 S.W.2d 863 (Tex. App.—Houston [1st Dist.] 1989, writ denied) . . . . . . . . . . . 22
Ashley v. Bizzell,
694 S.W.2d 349 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) . . . . . . . . . . . . . 51
Barnes v. Mathis,
353 S.W.3d 760 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Bible Baptist Church v. City of Cleburne,
848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied) . . . . . . . . . . . . . . . . . . 32, 33
Bily v. Omni Equities, Inc.,
731 S.W.2d 606 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) . . . 36, 37
Branch v. W. Petroleum, Inc.,
657 P.2d 267 (Utah 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Braxton v. Chin Tuo Chen,
No. 06-10-00134-CV, 2011 Tex. App. LEXIS 7414, 2011 WL 4031171
(Tex. App.—Texarkana Sept. 13, 2011, pet. denied) (mem op.) . . . . . . . . . . . . . . . 23
C. & R. Transport, Inc. v. Campbell,
406 S.W.2d 191 (Tex. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
California Tahoe Regional Planning Agency v. Jenkins,
591 F.2d 181 (9th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
California v. Ciraolo,
476 U.S. 207 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
City of Houston v. Renault, Inc.,
431 S.W.2d 322 (Tex. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36
vii
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
City of San Antonio v. Stumburg,
70 Tex. 366, 7 S.W. 754 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
City of Somerset v. Sears,
313 Ky. 784, 233 S.W.2d 530 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
City of Texarkana v. Taylor,
490 S.W.2d 191(Tex. Civ. App.–Texarkana 1972, writ ref'd n.r.e.) . . . . . . . . . 32, 33
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-34
Corley v. Exxon Pipeline Co.,
821 S.W.2d 435 (Tex. App.—Houston [14th Dist.] 1991, writ denied) . . . . . . . . . . 22
Dallas Land & Loan Co. v. Garrett,
276 S.W. 471 (Tex. Civ. App.—Dallas 1925, no writ) . . . . . . . . . . . . . . . . . . . 25, 39
Fontainebleau Hotel Corp. v. Forty-five Twenty-five, Inc.,
114 So. 2d 257 (Fla. App. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Ford Motor Co. v. Ledesma,
242 S.W.3d 32 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Freedman v. Briarcroft Property Owners, Inc.,
776 S.W.2d 212 (Tex. App.—Houston [14th Dist.] 1989, pet. denied) . . . . . . . . . . 50
Gotcher v. City of Farmersville,
137 Tex. 12, 151 S.W.2d 565 (Tex. 1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
Graves v. Diehl,
958 S.W.2d 468 (Tex. App.—Houston [14th Dist.] 1997, no writ) . . . . . . . . . . . . . 50
GTE Mobilnet of S. Texas Ltd. Pshp. v. Pascouet,
61 S.W.3d 599 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) . . . . . . . . . . . 48
Hanson Aggregates W., Inc. v. Ford,
338 S.W.3d 39 (Tex. App.—Austin 2011, pet. dism’d) . . . . . . . . . . . . . . . . . . . 30, 33
viii
Helix Land Co. v. City of San Diego,
82 Cal. App. 3d 932, 147 Cal. Rptr. 683 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Houston Gas & Fuel Co. v. Harlow,
297 S.W. 570 (Tex. Civ. App.—Houston 1927, no writ) . . . . . . . . . . . . . . . . . . . . . 25
Houston Unlimited, Inc. v. Mel Acres Ranch,
443 S.W.3d 820 (Tex. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-28
Ingram v. Turner,
125 S.W. 327 (Tex. Civ. App.—Fort Worth 1910, writ ref’d) . . . . . . . . . . . . . . . . . 45
Internacional Realty, Inc. v. 2005 RP West, Ltd.,
449 S.W.3d 512 (Tex. App.—Houston [1st Dist.] 2014, no pet.) . . . . . . . . . . . . . . 20
Justice v. CSX Transp., Inc.,
908 F.2d 119 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Klein v. Gehrung,
25 Tex. 232 (Tex. 1860) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Latch v. Gratty, Inc.,
107 S.W.3d 543 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Manuel v. Cresleigh Homes Corp.,
2007 Cal. App. Unpub. LEXIS 9789 (Cal. App. 3d Dist. Dec. 4, 2007) . . . . . . . . . 49
Mapco, Inc. v. Carter,
817 S.W.2d 686 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Maranatha Temple, Inc. v. Enterprise Products Co.,
893 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1994, writ denied) . . . . . . . . . . . . 24
McQueen v. Burkhart,
290 S.W.2d 577 (Tex. Civ. App.—Austin 1956, no writ) . . . . . . . . . . . . . . . . . . . . 45
N. Little Rock Transp. Co. v. Finkbeiner,
243 Ark. 596, 420 S.W.2d 874 (Ark. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Parson v. Texas City,
259 S.W.2d 333 (Tex. Civ. App.—Fort Worth 1953, writ ref’d) . . . . . . . . . . . . . . . 34
ix
Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co.,
77 S.W.3d 253 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rutter v. Carroll's Foods of the Midwest, Inc.,
50 F. Supp. 2d 876 (N.D. Iowa 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rylands v. Fletcher,
L.R. 1 Ex. 265 (1866), aff’d. L.R. 3 H.L. 330 (1868) . . . . . . . . . . 18, 31-34, 37, 41, 42
Sanders v. Miller,
52 Tex. Civ. App. 372, 113 S.W. 996 (Texarkana — 1908, no writ) . . . . . . . . . . 22-24
Schneider Nat. Carriers, Inc. v. Bates,
147 S.W.3d 264 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Soap Corporation of America v. Balis,
223 S.W.2d 957 (Tex. Civ. App.—Fort Worth 1949, writ ref’d n.r.e.) . . . . . . . . . . 44
Southeastern Pipe Line Co. v. Tichachek,
997 S.W.2d 166 (Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Spencer v. Eagle Star Insurance Co.,
876 S.W.2d 154 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
St. Joseph Hosp. v. Wolff,
94 S.W.3d 513 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State Dep't of Highways & Pub. Transp. v. Payne,
838 S.W.2d 235 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
State ex rel. Reich v. City of Beachwood,
158 Ohio App. 3d 588, 820 N.E.2d 936 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
State v. Crea,
305 Minn. 342, 233 N.W.2d 736 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
State v. Dickerson,
313 N.W.2d 526 (Iowa 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
State v. Heal,
917 S.W.2d (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
x
Thurow v. City of Dallas,
499 S.W.2d 347 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.) . . . . . . . . . . . . . . 25
United States v. Conrad,
578 F. Supp. 2d 1016 (N.D. Ill. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
United States v. Johnson,
561 F.2d 832 (D.C. Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Valentine v. Pioneer Chlor Alkali Co.,
864 P.2d 295 (Nev. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Vaughn v. Drennon,
202 S.W.3d 308 (Tex. App.—Tyler 2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 48
Wallace v. Horn,
506 S.W.2d 325 (Tex. Civ. App. —Corpus Christi 1974, writ ref’d n.r.e.) . . . . . . . 44
West v. City of Waco,
116 Tex. 472, 294 S.W. 832 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Statutes and Rules
TEX. R. APP. P. 43.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
TEX. R. CIV. P. 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
TEX. R. CIV. P. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
TEX. R. EVID. 201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
xi
Treatises and Law Reviews
CIVIL PRACTICE IN DISTRICT & COUNTY COURTS §17.31 (1984 & Supp. 1988) . . . . . . . . 20
W. Page Keeton, PROSSER & KEETON ON THE LAW OF TORTS,
§ 78 (5th Ed. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 42
W. Page Keeton, PROSSER & KEETON ON THE LAW OF TORTS,
§ 88B (5th Ed. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399 (1942) . . . . . . . . . . . . . . . 32-34, 38
RESTATEMENT (1st) OF TORTS § 822(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
RESTATEMENT (1st) OF TORTS § 833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
RESTATEMENT (2d) OF TORTS § 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
RESTATEMENT (2d) OF TORTS § 817 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
RESTATEMENT (2d) OF TORTS § 821B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 44, 45
RESTATEMENT (2d) OF TORTS § 821C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
RESTATEMENT (2d) OF TORTS § 822 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 44
RESTATEMENT (2d) OF TORTS § 833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
RESTATEMENT (3d) OF TORTS § 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 40, 41
RESTATEMENT (3d) OF TORTS § 20(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
RESTATEMENT (3d) OF TORTS, § 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
xii
No. 14-14-00589-CV
In the
Fourteenth Court of Appeals
Houston, Texas
1717 BISSONNET, LLC,
Appellant,
vs.
PENELOPE LOUGHHEAD, ET AL,
Appellees.
APPELLANT’S BRIEF
Appellant 1717 Bissonnet, LLC (hereinafter, “1717") appears to complain of error in the
judgment of the court below and to file this appellant’s brief in support of the relief requested
herein.
I. STATEMENT OF THE CASE.
This a nuisance case. Defendant-Appellant, 1717, plans to build a high rise apartment
building on a 1.6 acre tract located at 1717 Bissonnet Road. 1717 has cleared the land for
construction, but the building has not yet been built. Plaintiffs below claim they own thirty
residential properties located near 1717's project site. See 7th Amended Pet. (CR 417-32).
Over timely objection, the case was tried to a jury on the theory of strict liability –
nuisance without fault. See Jury Charge (CR 730-40) (Appendix 1). The jury found that 1717's
proposed project, if built, would constitute a nuisance for twenty of the thirty plaintiff
properties. (CR 733-35). The jury also awarded loss of market value damages and loss of use
and enjoyment damages for the plaintiffs who allegedly own the twenty affected properties
(hereinafter, the “Prevailing Plaintiffs”). (CR 736-38).
The trial court denied the plaintiffs’ petition to permanently enjoin the construction of the
project, but awarded lost market value damages to the Prevailing Plaintiffs (approximately $1.22
million), plus post-judgment interest and taxable costs. See May 1, 2014, Opinion & Order (CR
1199-1217) (Appendix 2); Final Judgment (CR 1271-75) (Appendix 3). The trial court granted
1717's motion for judgment against the plaintiffs who owned the remaining ten properties
(hereinafter, the “Losing Plaintiffs”), awarded 1717 a portion of its taxable costs against the
Losing Plaintiffs, and disregarded the jury’s award of use and enjoyment damages as unripe.
Id. This appeal followed. (CR 1285-86).
II. STATEMENT REGARDING ORAL ARGUMENT.
This is an appeal from a judgment of $1.22 million. The jury found that 1717's proposed
high rise building, if built, will constitute a nuisance for the alleged owners of twenty nearby
properties. Separate damage awards were made for each of the Prevailing Plaintiffs. The record
is large. The trial lasted almost a month. Thirty-seven witnesses testified, and hundreds of
exhibits were admitted.
Although 1717's first point of error involves the application of hornbook law to an
immaterial jury finding of damages, the subsidiary issues are fact-specific and will require
2
familiarity with the large trial record. Appellant believes that oral argument will assist the Court
in clarifying these subsidiary issues.
III. ISSUES PRESENTED.
(1) The damage findings are immaterial. A prospective, contingent
nuisance is not a tort that can support an award of damages.
Accordingly, there is no liability finding that supports the jury’s
award of market value damages in this case.
(2) The Prevailing Plaintiffs waived recovery of damages by failing to
request the district court to submit a liability question which could
support a damage award.
(3) Even if, hypothetically, lost market value were recoverable in a
nuisance case where the alleged nuisance does not yet exist, the
plaintiff must still prove that the diminution of the property’s value
proximately resulted from the alleged future nuisance. In this case,
the Prevailing Plaintiffs failed to prove that the loss of market value
of each of their properties was proximately caused by an actionable
future nuisance and not by some other cause.
(4) As a matter of law, the doctrine of strict liability (nuisance without
fault) does not apply on this record. Hence, the jury’s liability
finding for each of the Prevailing Plaintiffs should be disregarded and
cannot support the jury’s award of damages.
3
(5) No evidence exists to prove the project, if built, will be abnormal and
out of place in its relevant surroundings. Hence, the jury’s liability
finding for each of the Prevailing Plaintiffs is unsupported by legally
sufficient evidence.
(6) The Prevailing Plaintiffs failed to plead that the proposed garage
lighting of the Project, if built, creates a nuisance. Hence that claim
cannot support the judgment for those Plaintiffs.
(7) The Prevailing Plaintiffs failed to plead that annoyances resulting
from the construction of the Project will create a nuisance. Hence
that claim cannot support the judgment for those Plaintiffs.
(8) No evidence exists to prove that the Project, if built, will substantially
and unreasonably interfere with the use and enjoyment of any of the
non-abutting Plaintiff properties, i.e., the properties of
(a) Lam Nguyen & Katherine Huong;
(b) Suzanne Powell;
(c) Michelle Jennings & Michael Tetzlaff;
(d) James & Allison Clifton;
(e) Kimberly Bell;
(f) Richard & Mary Baraniuk;
(g) Kenneth Reusser & Xanthi Couroucli;
(h) Stephen Roberts;
4
(i) Earle Martin; and
(j) Norman & Suannah Rund.
Hence, the jury’s liability finding for each of these Prevailing
Plaintiffs is unsupported by legally sufficient evidence.
(9) No evidence exists to prove that any of the following Prevailing
Plaintiffs owned any justiciable interest in their alleged properties as
of the time of trial –
(a) Martha Gariepy, and
(b) James & Allison Clifton.
Accordingly, these Plaintiffs had no standing to bring this suit.
(10) The district court erred in its cost award.
IV. STATEMENT OF FACTS.
A. The Project and Its Surroundings.
The term “Project” is defined by the jury charge to mean “the 21-story mixed use building
that 1717 Bissonnet proposes to construct at the corner of Bissonnet Road and Ashby St.” (CR
732). Artist drawings of the completed building were admitted as DX 43 and are attached to
this Brief as Appendix 4. The Project is currently permitted for 232 units and 10,075 square feet
of restaurant space. (10 RR 230).
Bissonnet Road is a major collector street that accommodates some 14,000 cars per day.
(9 RR 218-23; 11 RR 240-41; PX 38). The portion of the road adjacent to the Project is 36-38
feet wide. (12 RR 128-29). Parking is allowed on both sides of the road during off hours.
5
Parking is prohibited on the eastbound side during the morning rush hour, and is prohibited on
the westbound side during evening rush hour. (9 RR 230-1). The road is wide enough for
traffic to go around stopped vehicles waiting to turn left. (5 RR 242; 9 RR 231-32; 11 RR 238-
39; see also DX 254 (video showing cars passing left turning vehicles); 12 RR 82-95).
Historically, the Project site was used as a strip center for a variety of local businesses.
(3 RR 106-07; 11 RR 6; DX 154). In 1976, the site was used for a two-story apartment complex
of 67 units, called the Maryland Manor Apartments. (10 RR 224-25). These apartments were
built within one to two feet of the southern and eastern property lines, abutting the Plaintiffs’
lots on Wroxton Court and Southampton Estates. (10 RR 206). Until razed in May 2013, these
buildings cast shadows and afforded visual access to surrounding backyards and window
exteriors. (3 RR 107-09; 4 RR 59-60; 7 RR 100-01; 10 RR 205-13; DX 2).
Although there is abundant testimony in the record concerning the character of the
immediate neighborhood surrounding the Project site, as well as the character of the wider
surrounding area characterized by the Museum District, the Medical Center, and Rice
University, much of the urban landscape is a matter of which the Court can take judicial notice.
See TEX. R. EVID. 201(b). There are several mid-rise (4 to 6 story) apartment buildings within
a five block radius of the Project site, as well as several small businesses, including restaurants.
The 6-story Medical Clinic of Houston is 4 blocks away. (9 RR 211-17, 226-27, 242-45; 10 RR
192; 11 RR 77-78; 13 RR 22-23; DX 21 # 56130; DX 42; DX 46).
With the growth of Houston’s population has come an increased demand for housing.
(9 RR 240-42). Higher density drives up cost of land, which, in turn, raises the urban skylines.
6
All over the inner city of Houston are high-rise developments in close proximity to single-
family neighborhoods. (See, e.g., 5 RR 158-207; 11 RR 73-91; DX 42; DX 105 (Video)).
B. Pre-Suit Controversy.
The district court’s memorandum opinion describes the salient facts of the pre-suit
controversy. (CR 1199-1201). Two aspects are pertinent to 1717's appeal.
First is the yard sign campaign demonizing the Project as a toothed monster and a “Tower
of Traffic.” Hundreds, if not thousands, of these yard signs posted throughout the neighborhood
have slandered the Project and also self-slandered the marketability of properties near the
Project. (4 RR 58-59). The point to be made in this connection is that the Plaintiffs’ claim for
stigma damages – which they allege to be the result of a “nuisance” that does not physically
exist – does not take into account the market reaction to misinformation propagated by the yard
sign campaign.
Second, 1717's suit with the City of Houston ended in a Settlement Agreement (DX 9;
11 RR 49-50), that imposes specific use restrictions on the property, including traffic mitigation
and light screening. Those restrictions run with the land and have been recorded. Otherwise,
the 1717 tract is not deed restricted. (13 RR 29-30).
C. Liability Findings.
Over 1717's Casteel objection (see 14 RR 10-13), the Court asked a single liability
question as to each of the thirty plaintiff properties in question – essentially, will the Project
constitute a nuisance for each such property if the Project is built? (CR 733). The Court defined
a “nuisance” to include a low standard of harm – interference that amounts to “more than a
7
slight inconvenience or petty annoyance.” (Id.) Embedded within this single, global liability
question were several distinct theories of nuisance, none of which the jury addressed specifically
in its global finding of nuisance:
(i) traffic – claims that high density would increase future traffic and
cause delays at the public intersection at Bissonnet and Dunlavy,
which in turn would divert traffic through the area subdivisions,
increase parking on side streets, and allegedly delay the deployment
of emergency services;
(2) privacy – an alleged future invasion of privacy via views from the
windows and other vantage points on the high rise, into backyards
and of the exterior of windows of the Plaintiffs’ houses;
(3) foundation damage – settlement around the foundation of the
Project that would allegedly extend to, and damage, the foundations
of fence-line plaintiff properties;
(4) shadow – the shadow to be cast by the prospective building on
Plaintiffs’ lots would allegedly damage decorative plants and
interfere with the Plaintiffs’ enjoyment of the sunshine through their
windows;
(5) “abnormal and out of place” – the sheer size of the proposed
building is unbefitting to the surrounding neighborhood;
(6) excessive light – from the proposed parking garage;
8
(7) construction-related annoyances – irritations from the future
construction of the Project (noise, vibrations, worker traffic, dust,
etc.); and
(8) diminution of value - alleged loss of current value due to the
prospect of the proposed Project being built.
It is impossible, by deductive reasoning, to determine exactly which of the alleged
impacts presented to the jury, or combination of impacts, were relied upon by at least ten jurors
to support each “yes” answer to the liability questions. All the Court can really know from the
answers to Question 1 is that the jury – using a preponderance of the evidence standard – found
that the Project, as it was proposed to be built as of the time of trial, will constitute a nuisance
in some undefined way for twenty properties if it were later built.
D. Alleged Future Impacts of the Project.
1. Traffic Congestion.
The Project, when complete, will add approximately 7% more rush hour traffic to
Bissonnet. (5 RR 223-33). Plaintiffs’ theory of traffic congestion, however, is only indirectly
related to this small increase. Traffic expert Jason Knesek attempted to show that an increased
volume of cars turning into the Project during peak PM hours (4:00 to 6:00 PM) would cause
time-consuming bottlenecks. According to Knesek, left-turning vehicles attempting to enter the
Project from the westbound lane of Bissonnet would frequently encounter eastbound traffic on
Bissonnet and be forced to stop and wait for an opening in order to make the turn. When the
turning vehicle stopped, vehicles behind it, Knesek opined, would also be forced to stop. These
9
cues, according to Knesek, would extend across the southbound lane of Dunlavy (north of the
Project). The gridlock at the Bissonnet-Dunlavy intersection, he predicted, would cause 5
minute delays. (PX 5; 5 RR 148-93). Mr. Knesek also opined that added traffic from the
Project would create a smaller bottleneck for northbound cars turning onto Bissonnet from
Ashby Street – resulting in approximately 2.5 minute delays during peak PM hours. (5 RR
151-58).
Knesek’s traffic congestion model is based upon a key assumption he admitted to be
false. Bissonnet is wide enough to allow cars to go around a vehicle that is stopped and waiting
to turn left. Knesek and many of the Plaintiffs1 admitted to witnessing cars passing left turning
vehicles in this manner on Bissonnet. (5 RR 242). Knesek’s congestion model is also limited
to the peak PM hours, when traffic in Houston is a city-wide problem. (5 RR 239-40). He does
not predict any permanent traffic jams.
And even more importantly for this appeal, Knesek did not show how any of the predicted
congestion would significantly affect the use and enjoyment of these Plaintiffs’ private
properties. There is no evidence, on a tract-by-tract basis, to prove that traffic will substantially
block the ingress or egress of Plaintiffs’ properties.
2. Shadow Effect.
Plaintiffs’ architectural expert, Robert Grossman, showed that the building would cast a
shadow during certain times of the year on all but six properties.2 (4 RR 118-46; PX 4, 346).
1
6 RR 280-81; 7 RR 21-22, 50, 111, 202, 268-69.
2
Grossman admitted that the shadow would not touch the properties of Lin & Pu (1710 South Blvd.), Epps
(1936 Wroxton Rd.), Martin (1811 Wroxton Rd.), Kimberly Bell (1729 Wroxton Rd.), Reusser/Couroucli
10
Grossman acknowledged that the amount and duration of the shadow to be cast by the Project
would vary depending on the time of year and the location of each property in relation to the
building. (Id.) Grossman provided calculations to show percentage of sunlight hours in full or
partial shadow for only four properties, but none of the others. (4 RR 131-37).3 The property
with the greatest shadow effect – 1810 Bissonnet – lost the jury verdict. The Plaintiffs’
horticulturist, Linda Gay, testified that the reduced sunlight would adversely affect certain
species of the decorative plants growing in some of the Plaintiffs’ yards. (8 RR 122-63).
3. Invasion of Privacy.
The Plaintiffs fear that occupants of the Project will use vantage-points on the building
or parking garage to look into the surrounding backyards and windows of the Plaintiffs’
properties. There is no evidence to demonstrate, on a property-by-property basis, which of the
Plaintiffs’ window exteriors and backyards will be visible to occupants of the tower, or the
distances involved; and no evidence exists to show which parts of the backyards or window
exteriors were not already visible to occupants of the now-demolished Maryland Manor
Apartments, or to passers-by generally.
4. Foundation Damage.
The building will be founded on an auger cast pile foundation, consisting of
approximately 600 piles. (6 RR 27-39). The piles are installed by a drilling and pouring
method, not by hammering. (Id., at 30, 35-39).
(1801 Wroxton Rd.) and Baraniuk (1731 Wroxton Rd.) (5 RR 76-79).
3
These are Clark (1810 Bissonnet), Bell (1530 South Hampton Estates), Nguyen (1801 Bissonnet), and
Loughhead (1736 Wroxton Ct.). Id.
11
Shortly before trial, 1717 proposed to drill the piles to a depth of 80 to 100 feet. (6 RR
31-32). Testimony from the parties’ geotechnical engineers was hotly contested. The Plaintiffs’
expert, Roderick Ellman, opined that the soils underlying the building site were a highly plastic
clay that would settle approximately four inches under the weight of the building. (6 RR 41-73,
135-36). Mr. Ellman acknowledged that the precise extent of the damage that will occur cannot
be predicted. (6 RR 72-73, 106-108). 1717's expert, Woodward Vogt, testified that the soils
in that area of Houston were far stronger and that settlement would be negligible. (10 RR 35-
64).
During trial, a deep boring of the soil on the Project site was conducted. The experts
analyzed the data and again came to differing conclusions about the plasticity of the clays at 83
to 105 feet and at 103 to 105 feet. (15 RR 6-16; DX 142, 143, 157-58). Consistent with the soil
configurations of the Houston area, the boring revealed a permanent sand layer existing
approximately 110 feet below the surface. (10 RR 56-57, 64; 17 RR 113, 122-23; DX 142).
Following the trial of the case, 1717 modified its foundation design to lengthen 71 of the
auger-cast piles underneath the two main shear wall boxes at the southwest and southeast
corners of the garage, so that their tips extend at least two feet into the sand. (17 RR 74-76).
At the balancing of the equities hearing, it was uncontroverted that this enhancement of the
foundation design of the building will completely eliminate the threat of settlement of the
underlying soils and the risk of foundation damage to the surrounding properties, even if,
arguendo, Mr. Ellman’s assumptions about the plasticity of the overlying clay soils are assumed
true. (17 RR 120-24).
12
5. Excessive Garage Lighting.
There is no pleading to support a claim that the Project will be a nuisance because of
annoyances from lighting in the parking garage. See 7th Amd. Pet. (CR 417-33). At the outset
of trial, 1717 objected to the admissibility of evidence relating to lighting on the ground of no
pleadings (2 RR 59-53; 5 RR 8-9; 1 Supp. CR 3, 7, at Item #19), and later objected to the jury
charge on the same ground. (14 RR 30-31; Proposed Jury Instr. #7, CR 709).
In the Settlement Agreement between 1717 and the City of Houston, 1717 agreed to
“ensure” that “the now existing adjacent residences are reasonably and practically screened from
the direct impact of garage lighting and vehicle headlights inside the garage.” Settlement Agr.,
at ¶ II.4.h (DX 9). The Agreement further provides that “all exterior lighting fixtures, including
any and all lighting fixtures on any amenity floor, must be hooded or directed away from the
now existing adjacent residences, so that the light source is not visible from those residences.”
Id. The Settlement Agreement has been memorialized in a Declaration of Restrictive Covenants
recorded against the Project site. Id. 1717's lighting designer, John F. Bos, was hired to review
the Settlement Agreement with the City of Houston and design the lighting in accordance with
that agreement. (2 RR 140-43). No evidence exists to prove that the City would not enforce
this provision of the Settlement Agreement were 1717 later to breach it.
The exterior walls of the garage are designed at a sufficient height (42 inches) to block
car headlamps (typically less than 36 inches) and also to intercept most light spill. (12 RR 146-
47). The interior light fixtures will be louvered to prevent the visibility of the light source from
13
the surrounding properties. (12 RR 147-52). If viewed from a distance of 32 feet, ambient light
from the garage will be comparable to a common street lamp. (12 RR 163).
Over objection that he had not been designated to testify as a lighting expert (4 RR 221-
22), Mr. Grossman testified on the prospective garage lighting. Grossman’s opinions were
based on the assumption that 1717 will breach the Settlement Agreement. He assumed that the
lighted bulbs hanging from the light fixtures in the garage would be visible to the surrounding
properties because certain ceilings in the garage were higher than others. (4 RR 222-27). This
testimony was rebutted by Mr. Bos, who showed that the lights were mounted on chains that can
be easily adjusted to prevent the light sources from being seen from the ground. (4 RR 227).
Grossman opined that spill lighting from the proposed Project garage would be five times
brighter than spill lighting from a single-family home (5-foot candles vs. 1-foot candle), a
magnitude of intensity that he believes would annoy residents on the south side of the Project.
(5 RR 214-15). Grossman did not explain how he arrived at these numbers. Mr. Bos testified
that light intensity dissipates with distance. (12 RR 163). Accordingly, even if Grossman’s
opinion that spill light from the Project would measure 5-foot candles, such light would
dissipate to less than one foot candle within 30 feet. Id. Mr. Grossman testified that movie-
house step lights produce 1-2 foot candles. (5 RR 1214-15).
6. Construction Activities.
1717 objected to the admission of evidence concerning future construction activities on
the ground that no pleadings supported it. (2 RR 49-53; 5 RR 8-9; 1 Supp. CR 6-7). The Court
overruled that objection. (2 RR 53; 5 RR 8). Nevertheless, the Plaintiffs proffered no expert
14
testimony about any annoyances that could be expected from the construction of the Project.
Various of the Plaintiffs testified about their fears of construction noises, dust, and the like; but
none of them demonstrated any competency to offer such testimony.
7. Diminution of Market Value.
The Plaintiffs’ real estate appraiser, Jeff Spilker, opined that even though the Project had
not yet been built, the market was already reacting by devaluing the Plaintiffs’ properties by
approximately 12%, and in some cases up to 19% of their market value. (PX 6). To reach this
conclusion, Spilker
(1) postulated an area of devaluation surrounding the Project,
(2) determined the average price per square-foot of properties outside of
the impaired area that he opined to be similarly situated,
(3) used the market values of properties outside of the affected area to project
a non-impaired market value for each of the Plaintiffs’ properties,
(4) determined the value of allegedly comparable properties inside of the
impaired area,
(5) used the impaired-area comparables to project an impaired market
value of the Plaintiffs’ properties, and
(6) found market diminution damages by subtracting non-impaired
values (Step 3) from impaired values (Step 5) for each property.
(8 RR 195-220; 9 RR 23-53; PX 263-94).
15
The jury found that as to the twenty prevailing properties, the alleged prospective
nuisance caused damages in the cumulative amount of $1,661,990.62. Within this total are
separate findings for market value losses (total, $1,223,762.15) and loss of use and enjoyment
(total, $438,228.47). (CR 736-38). The district court granted 1717's motion to disregard the
damages for loss of use and enjoyment, but entered judgment on the market value damages. (CR
1215-16, 1272-73).
The jury’s findings of lost market values were significantly less than the losses proposed
by Spilker. It is apparent that the jury accepted the non-impaired values for each property as
proposed by Spilker (Step 3). See PX 263-92. However, rather than accept Step 5 in Spilker’s
analysis, the jury appears to have determined damages on the basis of feared nuisance impacts
discussed by the witnesses. Generally, and with a few anomalies, the jury found a 15% loss of
value for properties within the zone projected by Mr. Ellman (geotechnical expert) for
“extreme” foundation damage, 12% loss in Ellman’s zone of “moderate” damage, 5% for
properties on the west side of the Project (1801 Bissonnet and 1804 Wroxton Road), and all
other Prevailing Plaintiffs received 3% awards.
Defendants’ Exhibit 167 diagrams the percentage of market loss found by the jury for
each of the Plaintiffs’ properties. (Appendix 5)
As discussed below, no evidence was adduced to show that the assumed loss of market
value had any causal connection with any of the testimony relating to the potential impacts from
the building. The assumption of such a causal connection exists was simply assumed, not
proven.
16
E. Pertinent Procedural Background.
At the close of the Plaintiffs’ case-in-chief, 1717 moved for a directed verdict. That
motion was granted in part, dismissing claims of all non-abutting Plaintiffs to the extent those
claims depended on a finding of potential foundation damage. (9 RR 137-63; CR 694-701).
At the close of the evidence, 1717 renewed its motion for directed verdict (CR 10-21; 15 RR
83-84), which was denied. (15 RR 83-84). The district court overruled 1717's objections to the
jury charge, including no evidence objections to all liability and damage questions. See
Defendant’s Charge Objections (14 RR 14-30) (Appendix 6); (15 RR 83; CR 703-09, 723-28).
Following the jury’s verdict, 1717 moved for JNOV, which was denied in pertinent part.
(CR741-81; 1153-76, Motion for JNOV); (CR 1199-1217, Memorandum Order). Over 1717's
objection, the district court awarded taxable costs in favor of the Prevailing
Plaintiffs. (CR 1271-75, Judgment).
V. SUMMARY OF THE ARGUMENT.
As with other torts, nuisance liability requires three basic elements: culpability,
actionable injury, and damages that proximately result from the injury. None of these elements
were proved in this case.
First, the liability finding of a potential nuisance that will exist only if the Project is built,
does not constitute a tort that can support an award of damages. Loss of market value, whatever
its cause, is immaterial in this case. Diminution of market value alone, buttressed by no
accompanying personal injury or physical property damage, does not constitute an unreasonable
17
interference with the “use and enjoyment” of the land. It is damnum absque injuria – a loss
without an injury in the legal sense.
Second, the culpability theory on which this case was tried – nuisance without fault – is
inapplicable as a matter of law. The gravamen of the Plaintiffs’ invocation of strict liability –
that 1717's proposed high-rise apartment building is “too big” in relation to the surrounding
single-family residences they allegedly own – befits the kind of controversy that would be
properly aired in a zoning board of adjustment hearing. Only Houston has no zoning.
In Texas, strict nuisance liability is based upon the principle of Rylands v. Fletcher. The
plaintiff must prove that the nuisance is both abnormal for its surroundings and inherently
dangerous in its unusualness. No evidence exists to prove that the Project is ultra-hazardous or
abnormally dangerous, under the Rylands doctrine. Buildings of the same general dimensions
are common in Houston’s inner city environment and pose no inherent dangers to nearby
residents.
Third, no evidence exists to prove that the loss of market value of the Prevailing
Plaintiffs’ properties was proximately caused by the prospective nuisance found by the jury, and
not by some other cause. Several other, non-actionable causes are possible – for example, the
new apartment building will increase the supply of residential housing to the area; and the
neighborhood residents themselves may have undermined their property values with negative
publicity in the form of yard signs depicting the building as a toothed monster and referring to
it as the “Tower of Traffic.” Increased traffic, shadow, and architectural non-conformity with
18
the surrounding neighborhood (all code words for aesthetic complaints) are not actionable
injuries.
In any event, even if the damage awards could survive the foregoing arguments that apply
to all of the Plaintiffs’ claims, additional, subsidiary arguments defeat the claims of two distinct
subsets of the Plaintiffs.
First, as to all of the Plaintiffs who are outside of the zone of potential foundation damage
– identified below as the non-abutting Plaintiffs – there is no evidence that the Project, if built,
will substantially interfere with the use and enjoyment of their properties. The shadow cast by
the proposed apartment building cannot constitute a nuisance under Texas law, and certainly not
on these facts. Plaintiffs lack standing to complain of increased traffic on city streets. The
liability question only asked about a prospective nuisance on “their land” – a private nuisance,
not a public nuisance. And no pleadings or evidence supports any finding that any light or
construction-related annoyance will rise to the level of substantial interference with the use and
enjoyment of these non-abutting properties.
Second, two of the Prevailing Plaintiffs did not prove any justiciable ownership of the
abutting properties.
Finally, because the judgment in favor of all of the Prevailing Plaintiffs should be
reversed and rendered for 1717, an award of taxable costs should be rendered for 1717 as well.
19
VI. ARGUMENT.
A. Standard of Review.
A denial of a motion for JNOV is reviewed de novo on appeal. Internacional Realty, Inc.
v. 2005 RP West, Ltd., 449 S.W.3d 512, 530 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
A trial court may grant a motion for JNOV if the evidence is legally insufficient to support the
jury’s findings on the material fact issues. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77
S.W.3d 253, 268 (Tex. 2002). A legal-sufficiency point must be sustained when (1) there is a
complete absence of evidence of a vital fact; (2) rules of law or evidence preclude the factfinder
from giving any weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively
establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.
2005).
A trial court may disregard a jury finding when it is unsupported by evidence or when the
issue is legally immaterial. Southeastern Pipe Line Co. v. Tichachek, 997 S.W.2d 166, 172
(Tex. 1999); Spencer v. Eagle Star Insurance Co., 876 S.W.2d 154, 157 (Tex. 1994)(citing C.
& R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966)). A question is immaterial
when it should not have been submitted, or when it was properly submitted but has been
rendered immaterial by other findings. Id. A question which calls for a finding beyond the
province of the jury, such as a question of law, also may be deemed immaterial. Spencer, 876
S.W.2d at 157 (citing 4 R. McDonald, TEXAS CIVIL PRACTICE IN DISTRICT & COUNTY COURTS
§17.31 (1984 & Supp. 1988)).
20
B. No Tort Finding Supports the Damage Award.
“[N]uisance claims arise only upon a substantial interference with property use.”
Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 (Tex. 2004) (internal quotations
deleted). By disregarding the jury findings of use and enjoyment damages, the district court
acknowledged, in effect, that no nuisance claim had arisen because the unbuilt Project has not
yet interfered with the use and enjoyment of any of the Plaintiffs’ properties. Such interference,
the court noted, “is speculative until the project is constructed.” (CR 1216). Yet the court
awarded lost market value damages because the market has already responded to the likelihood
that a tower will be built. Id.
This reasoning is erroneous. An anticipatory nuisance causes no interference with use
and enjoyment of property. Thus, it is not a tort that can support a damage recovery. In
circular fashion, the district court reasoned that the lost market value is the condition that
supports the recovery of that loss. However, merely causing diminution of the value of property
is not a tort either.
The Second Restatement of Torts distinguishes suits in equity to enjoin prospective
invasions of property interests from suits at law for damages caused by an existing nuisance.
Although a court may enjoin certain threatened nuisances before they occur, the right to recover
damages does not ripen until an actual nuisance inflicts a cognizable injury. See RESTATEMENT
(2d) OF TORTS § 822 (private nuisance), comment d (“An injunction may be obtained in a proper
case against a threatened private nuisance, but an action cannot be maintained at law unless
harm already has been suffered.”) (emphasis added); id., at § 821B (public nuisance), comment
21
i (“an award of damages is retroactive, applying to past conduct, while an injunction applies
only to the future. In addition, for damages to be awarded significant harm must have been
actually incurred, while for an injunction harm need only be threatened and need not actually
have been sustained at all.”) (emphasis added).4
Texas cases exemplify this Restatement position. “A cause of action for damaging land
does not lie for anticipated future damages that have not yet occurred.” Allen v. City of Tex.
City, 775 S.W.2d 863, 866 (Tex. App.—Houston [1st Dist.] 1989, writ denied); see also Corley
v. Exxon Pipeline Co., 821 S.W.2d 435, 437 (Tex. App.—Houston [14th Dist.] 1991, writ
denied) (“A cause of action for damaging land does not lie for anticipated damages, rather it
accrues at the time the land is actually damaged.”); Sanders v. Miller, 52 Tex. Civ. App. 372,
113 S.W. 996 (Texarkana — 1908, no writ) (reversing lost market value damage award and
rendering judgment for defendant where, as here, the nuisance had not yet occurred and “the
entire claim for damage is predicated upon a condition which it is expected will arise sometime
in the future”).
In Sanders v. Miller, the defendant constructed a backyard swimming pool. During the
early twentieth century, swimming pools often became breeding tanks for mosquitos. At the
time of trial, the recently constructed pool was not yet the malarial swamp it was alleged to
4
See also Helix Land Co. v. City of San Diego, 82 Cal. App. 3d 932, 147 Cal. Rptr. 683, 693 (1978)
(landowners were not entitled to recover for a future threat of flooding to their property where the city and
state had adopted a flood control plan, because the risk of future flooding is not an act and does not give
rise to a cause of action for damages in nuisance: “Helix may not recover damages for potential, future
injuries arising from the threat of nuisance.”); Rutter v. Carroll’s Foods of the Midwest, Inc., 50 F. Supp.
2d 876, 886 (N.D. Iowa 1999) (applying Iowa law and stating that “[d]amages are only available if the
‘anticipated’ trespass or nuisance ripens into an actual nuisance.”).
22
become. Nevertheless, the plaintiff, who resided nearby, sued for the loss of market value of
his property which had resulted from the presence of the still prospective nuisance. As the court
described the situation:
Both the pleadings and the evidence in this case show that the
damage claimed to Miller’s premises is due to the fact that in the
future they will be unfit, or undesirable, for occupancy as a place of
residence, by reason of the surrounding sanitary conditions being
rendered unwholesome; that these unsanitary conditions have not yet
occurred, but are practically certain to occur in the ordinary course of
events. At the time of filing the suit and of the trial of the case no
injurious results had actually been produced by the proximity of the
pool, and it does not appear that there was any immediate danger of
any at an early date. The entire claim for damage is predicated upon
a condition which it is expected will arise sometime in the future.
113 S.W. at 999. The plaintiff’s damages, “being dependent on the creation of the
unwholesome conditions exclusively, [could] not be said to have any legal existence until the
offensive conditions appear.” Sanders, 113 S.W. at 999. The court thus concluded:
The evidence in this case failing to show that [plaintiff] Miller had
suffered any discomfort or inconvenience or annoyance by reason of
the presence of the pool, we do not think there was any basis for
damages.
Id.
More recent Texas cases have applied the same principle to the analogous context of a
claim for lost market value where the defendant threatens to withdraw subjacent or lateral
support from the plaintiff’s land. For example, in Braxton v. Chin Tuo Chen, No. 06-10-00134-
CV, 2011 Tex. App. LEXIS 7414, at * 16, 2011 WL 4031171 (Tex. App.—Texarkana Sept. 13,
2011, pet. denied) (mem op.), the court held that “the threat of the loss of lateral support is not
sufficient injury to support a claim for loss of lateral support,” even where the plaintiff
23
succeeded in demonstrating that the mere threat of injury to the land had already reduced the
property’s market value. See also RESTATEMENT (Second) OF TORTS §§ 817 and 821 cmts. i
(1979) (“the withdrawal of the naturally necessary . . . support subjects the actor to liability but
does not make him liable in an action for damages unless, and until, a subsidence occurs.”)
(emphasis added).
In the present case, the alleged nuisance is, by its nature, prospective or anticipatory – the
still un-built Project has no current light, privacy, shadow, foundation, or traffic impact as the
Plaintiffs claim it will have, and thus, it is not, literally speaking, a nuisance in fact at all.
Sanders, 113 S.W. at 999 (“There was no stagnant water in the pool, no insect pests had been
produced, and no legal rights which Miller possessed to the use of his premises had been
interfered with. Therefore it could not be said that the pool was at the time of the trial a
nuisance in fact.”) (emphasis added).
While it is true that loss of market value is the proper measure of damage for a permanent
nuisance, losing market value of one’s property does not interfere with its use and enjoyment.
As our Supreme Court has noted, “[e]very change in property value does not indicate a
permanent nuisance. Property values are affected by many factors; a decrease in market value
does not mean there is a nuisance, any more than an increase means there is not.” Schneider,
147 S.W.3d at 277 (emphasis added; footnotes omitted). Mere diminution in property value is
damnum absque injuria -- a loss without an injury in the legal sense. See, e.g., Sanders, 113
S.W. at 996-1000; Maranatha Temple, Inc. v. Enterprise Products Co., 893 S.W.2d 92, 99-100
(Tex. App.—Houston [1st Dist.] 1994, writ denied) (market value disallowed where no injury
24
to “land or body” had been established); Houston Gas & Fuel Co. v. Harlow, 297 S.W. 570, 572
(Tex. Civ. App.—Houston 1927, no writ) (“If there be no nuisance, there can be no recovery
of damages for such annoyance as may exist, nor for diminution in the value of the property.”);
Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex. Civ. App.—Dallas 1925, no writ)
(garage built for residents of an apartment complex was not a nuisance because “[m]atters that
annoy by being disagreeable, unsightly, and undesirable are not nuisances simply because they
may to some extent affect the value of property”); Thurow v. City of Dallas, 499 S.W.2d 347,
348 (Tex. Civ. App.—Dallas 1973, writ ref’d n.r.e.) (“The general rule is that announcement
of a projected public improvement, together with preparation of plans and maps showing the
property in question as within the limits of the project, without any actual interference with the
owner’s use, does not constitute a taking or compensable damaging, even though it may reduce
marketability as a practical matter.”) (emphasis added).
As diminished market value is not by itself a sufficient basis for the imposition of
liability, the finding of such loss cannot supply the essential elements of liability. Thus, the
district court erred in denying 1717's motion to disregard the Plaintiffs’ loss of market value
damages. (CR 710-12, 776-78, 1216).
C. The Plaintiffs Waived Damages by Failing to Request the District
Court to Submit a Claim for Which Damages Are Recoverable.
Over a materiality objection, (14 RR 7-8), the Plaintiffs did not request the district court
to submit a jury question that could support any award of damages. See Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 44 (Tex. 2007) (stating that if the plaintiff refuses to submit a viable
theory of liability over the defendant’s objection, so that no jury question is submitted on a
25
controlling issue, the case may be reversed and judgment rendered); State Dep’t of Highways
& Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). A damage recovery was therefore
waived.
D. No Evidence Exists to Prove That Plaintiffs’ Damages Were
Proximately Caused by Any Actionable Nuisance.
To recover market value damages in a nuisance case, the plaintiff must prove not only the
amount of damages, but must also prove that the damages were proximately caused by the
alleged nuisance and not by some other cause. See Houston Unlimited, Inc. v. Mel Acres Ranch,
443 S.W.3d 820 (Tex. 2014). In the present case, the Prevailing Plaintiffs failed to prove this
requisite causal link between any prospective nuisance and the claimed diminution of the market
value of their properties. The district court therefore erred in denying 1717's motion for JNOV
on this ground. (CR 778-79, 1216).
In Houston Unlimited, the Supreme Court addressed the legal sufficiency of expert
appraisal testimony offered to prove “stigma” damages. Although the plaintiff’s property, Mel
Acres Ranch, had been physically damaged by the defendant’s hazardous waste spill, the
physical injury to the land had been fully remediated by the time of trial. In terms of physical
damage, therefore, the spill was in the nature of a temporary nuisance, for which loss of market
value damages are ordinarily inappropriate. Mel Acres nevertheless sought market value
damages, ordinarily recoverable only in permanent nuisance cases, because the “stigma” of
poisonous waste on its ranch land, remediated or not, would permanently undermine the value
of the property among potential buyers, where “perception is everything.” 443 S.W.3d at 824.
26
Without deciding whether stigma damages can ever be recovered in Texas,5 the Supreme
Court began its analysis recognizing that “[e]ven when it is legally possible to recover stigma
damages, it is often legally impossible to prove them.” Houston Unlimited, 443 S.W.3d at 827.
One of the “fatal flaws” in the proof that the Court identified was the plaintiff’s failure to show
that decline of market value did in fact result from the remediated nuisance. The plaintiff’s
appraiser “merely assumed that the diminution in market value she found was (wholly)
attributable to the nearby contamination.” Id. at 830. The appraiser did not attempt to rule out
other plausible causes. Id. at 833. As the Court reasoned:
While the parties agreed that environmental contamination can result
in a diminution in property value that remains even after the
contamination is remediated, the parties did not agree, and there was
no evidence indicating, that this is always the case. Absent such
evidence, we cannot assume, without evidence, that any (much less
all) of the diminution [plaintiff’s appraiser] found for the
[comparator] sites was attributable to market stigma. And even if
there were such evidence or evidence that contaminated properties
always retain some diminution in market value even after
remediation, Mel Acres offered no evidence tending to show that all
of the [comparator] sites’ alleged diminutions in value were
attributable to stigma or to apportion such diminution among stigma
and other possible causes.
Id. at 833-34.
5
Before addressing the sufficiency of the plaintiff’s proof of damages, the Court declined to decide whether
stigma damages could ever be recovered in Texas. A claim in this case for stigma damages is on even
weaker grounds than the claim in Houston Unlimited, because here there is no physical injury (a toxic spill)
that can be said to be causing the present loss of market value. Houston Unlimited, 443 S.W.3d at 827
(“most jurisdictions agree that plaintiffs must experience some physical injury to their property before they
may recover stigma damages[; however,] jurisdictions are divided on whether the injury must be temporary
or permanent.”). As discussed in the previous section, the damages here are alleged to have been caused
by the prospect of a future nuisance, which is damnum absque injuria – a loss without any legal injury.
27
The damage findings in the present case are similarly flawed. The Plaintiffs’ appraiser,
Mr. Spilker, made no attempt to prove that buyers in the relevant market would pay less for the
plaintiff properties because of any specific feature of the Project that the jury found to be a
prospective nuisance. Indeed, there was nothing but anecdotal evidence – the yard sign
propaganda campaign depicting the “Tower of Traffic” as a looming monster menacing the
neighborhood – to suggest that prospective buyers even knew about any of the specific design
features of the Project that the Plaintiffs challenged at trial.
Like the plaintiff’s appraisal expert in Houston Unlimited, Mr. Spilker made no attempt
to prove that the loss of market value was not due to some other cause. Spilker did not account
for, and rule out, alternative explanations for why the market value of Plaintiffs’ properties
might have declined, such as the market’s reaction to the anticipated aesthetics of the building
(a non-actionable impact), or fear of traffic congestion (an alleged public nuisance, for which
Plaintiffs lack standing to sue). Mr. Spilker did not attempt to separate out devaluation
potentially caused by inflammatory propaganda campaign. There was no evidence to prove
what prospective buyers knew about the Project or believed about it, and more importantly,
whether and to what extent any such beliefs are based upon facts, exaggeration, or pure fiction.
Moreover, Mr. Spilker did not take into account the fact that the 1717 tract is not deed
restricted and is surrounded by commercial and multifamily developments (albeit of smaller
dimensions). (13 RR 29-38). Mr. Spilker did not even factor into his damage model the law
of supply and demand – that the Project, when built, could lower home prices in the
neighborhood simply by increasing the supply of high-end residential housing. In short, the
28
jury’s finding that the market value damages have been caused by “the nuisance, if built” is
based entirely on legally insufficient evidence and speculation.
Tellingly, the jury attempted to fill the gaps left in Mr. Spilker’s analysis by speculating
about the damages that might be caused by the alleged future impacts of the Project. For
example, properties predicted to sustain “severe” foundation damage were found by the jury to
have lost 15% of their market value; properties predicted to sustain “moderate” foundation
damage to have lost 12% of their value; and properties outside of the zone of foundation damage
were found by the jury to have sustained market value losses of 3% to 5%, based upon unknown
factors. (See DX 167). Although there is not a shred of evidence to link market value loss to
these alleged future impacts, the lay jury cannot be faulted for attempting to postulate the critical
link that is glaringly absent in the proof.
Accordingly, even if Texas were to become the first state in the Union to allow recovery
of market value damages for a contingent occurrence, the Plaintiffs in this case offered no
evidence to prove that the loss of market value of each of their properties was the proximate
result of a nuisance condition, as distinguished from some other non-actionable cause in fact.
E. No Evidence Supports the Applicability of Strict Liability.
1. Introduction.
The findings of liability in this case were not premised upon any theory of negligence or
intentional injury. Rather, Plaintiffs pled and submitted their case upon a novel theory of strict
liability – that the proposed 21-story apartment building, situated in this mixed-use, inner-city
neighborhood, will be abnormal and out of place in relation to the size of the residences on the
29
Plaintiffs’ nearby properties. See 7th Amd. Pet., at ¶ 8 (CR 420) (alleging that the project, if
built, will be “vastly oversized, and incongruous with the surrounding community, and “[a]t 21
stories tall would dwarf every structure in the surrounding area and would dramatically alter the
character of the neighborhood”).6 The constant refrain in the testimony was that the Project will
be big.7 As the district judge summed up the gravamen of the Plaintiffs’ case:
In the end, this project is a residential development in a residential
neighborhood. Plaintiffs’ opposition is primarily scale – plaintiffs
argue the project is simply too big.
(CR 209).
A nuisance that is culpable for being ‘out of place in the surroundings’ is “essentially a
form of strict-liability nuisance.” Hanson Aggregates W., Inc. v. Ford, 338 S.W.3d 39, 46 (Tex.
App.—Austin 2011, pet. dism’d). Whether strict liability applies in a nuisance case raises a
question of law in light of all of the evidence. See RESTATEMENT (2d) OF TORTS § 520,
comment l (ALI 1979), stating:
The imposition of strict liability . . . involves a characterization of the
defendant’s activity or enterprise itself, and a decision as to whether
he is free to conduct it at all without becoming subject to liability for
the harm that ensues even though he has used all reasonable care.
This calls for a decision of the court; and it is no part of the province
of the jury to decide whether an industrial enterprise upon which the
community’s prosperity might depend is located in the wrong place
6
1717 objected to the liability instruction on the ground that the phrase “abnormal or out of place,”
standing alone, is not a correct standard of law: “The concept should include the instruction that the
condition is abnormal or out of place in the sense that it creates inherent unreasonable danger.” 14 RR 27,
see also Proposed Instr. # 3 (CR 705). Because 1717 objected to the charge, the evidence must be reviewed
on appeal according to the standard that the trial court should have applied. See St. Joseph Hosp. v. Wolff,
94 S.W.3d 513, 530 (Tex. 2003).
7
4 RR 73 (Loughhead, “It is a large building”); 6 RR 166 (Flatt, height and bulk are “ridiculously
different,” a “joke in the worse possible taste.”); 8 RR 75 (Rund, “a monster building”).
30
or whether such an activity as blasting is to be permitted without
liability in the center of a large city.
Id.
In the present case, as discussed below, the liability finding for each of the Prevailing
Plaintiffs is immaterial and should be disregarded because, as a matter of law, the doctrine of
nuisance without fault is inapplicable on this record. Alternatively, no evidence exists to show
that the Project, as it was proposed at the time of trial, will be abnormal and out of place in the
manner required by law to trigger strict liability for creating a nuisance.
2. Tyler v. Likes.
The concept that a nuisance “culpable because [it is] abnormal and out of place in its
surroundings,” is mentioned in City of Tyler v. Likes, 962 S.W.2d 489, 502 (Tex. 1997).
“Abnormal” and “out of place” in this equation are ambiguous terms and must be understood
within the doctrine of Rylands v. Fletcher, which most American jurisdictions, including Texas,
cite approvingly as the paradigm for strict nuisance liability. See RESTATEMENT (Third) OF
TORTS § 20, comment d (ALI 1998). “Non-natural use” in this context means use that is “both
unusual and distinctively dangerous in its unusualness.” Id. (emphasis added).
In Likes, the Supreme Court expressly referenced the “principle of Rylands v. Fletcher”
as one of the three recognized theories of culpability in a nuisance case. On review in that case
was a summary judgment for the defendant, City of Tyler, on the claims that the City’s culvert
system directed storm water onto the plaintiff’s property. Allegedly, the nuisance was
intentionally and negligently caused, but, as the Court noted, the plaintiff “did not plead that the
31
operation of the culvert system was a nuisance by virtue of being abnormal or out of place in
its surroundings.” Likes, 962 S.W.2d at 493 (emphasis added).
In Likes, the question of what constituted a nuisance “culpable for being abnormal and
out of place” was not before the Court. However, the Court addressed the concept of strict
nuisance liability in the context of affirming the summary judgment against the plaintiff’s “non-
negligent” nuisance claims:
Courts have broken actionable nuisance into three classifications:
negligent invasion of another’s interests; intentional invasion of
another’s interests; or other conduct, culpable because abnormal
and out of place in its surroundings, that invades another’s
interests. See Bible Baptist Church v. City of Cleburne, 848 S.W.2d
826, 829 (Tex. App.—Waco 1993, writ denied) (setting up categories
for actionable nuisance); see also Gotcher v. City of Farmersville,
137 Tex. 12, 151 S.W.2d 565, 566 (Tex. 1941) (dicta stating that a
municipality is liable for the maintenance of a nuisance in the course
of the performance of a governmental function if the nuisance is an
unlawful invasion of another’s interests); City of Texarkana [v.
Taylor], 490 S.W.2d [191,] 194 [(Tex. Civ. App.--Texarkana 1972,
writ ref’d n.r.e.)] (holding municipality not liable for nuisance caused
by the negligent performance of a governmental function); Prosser,
Nuisance Without Fault, 20 TEX. L. REV. 399, 416-17 (1942). As
Dean Prosser explained:
Nuisance, whether it be public or private, is thus a field
of tort liability, a kind of damage done, rather than any
particular type of conduct. As in the case of any other
kind of damage, it may be inflicted by conduct which is
intended to cause harm, by that which is merely
negligent, or by that which involves an unusual
hazard or risk, in line with the principle of Rylands
v. Fletcher.
Likes, 962 S.W.2d at 503-04 (emphasis added).
32
In short, Likes teaches that nuisance has the same three-part structure as other torts: (1)
culpability, (2) invasion of rights, and (3) resulting damages:
The type of invasion that characterizes “nuisance” is not, in itself, a
legal wrong that gives rise to a right to relief. Similar to many other
types of invasions or infringements, the invasion characterizing
“nuisance” becomes tortious and wrongful only when caused by
intentional or negligent conduct, or conduct that is abnormal and out
of place in its surroundings (essentially a form of strict-liability
nuisance).
Hanson Aggregates West, Inc. v. Ford, 338 S.W.3d 39, 45-46 (Tex. App.—Austin 2011, pet
denied) (citing Likes, Prosser’s Nuisance Without Fault, and Rylands v. Fletcher).
It is instructive to note that none of the cases cited by Likes involved claims of strict
nuisance liability. More to the point, Likes did not approve the imposition of strict liability for
incongruous of high vs. low density uses, or low-rise vs. high-rise residences. Bible Baptist
Church and City of Texarkana each involved a negligent sewage spill – not strict liability; and
Gotcher rejected an attractive nuisance claim, where it was alleged that a child had drowned in
a cesspool. The only authority cited in Likes that elaborates on strict liability for non-natural
uses of land, is Prosser’s seminal article, Nuisance Without Fault.
As Prosser understood it, the form of strict nuisance liability that American courts
associate with Rylands is one that applies “only to the thing out of place, the abnormally
dangerous condition or activity which is not a ‘natural’ one where it is.” W. Page Keeton,
PROSSER & KEETON ON THE LAW OF TORTS, § 78, at p. 550 (5th Ed. 1984) (emphasis added).
Non-natural use in this sense is not simply architectural non-conformity. In Nuisance Without
Fault, Prosser stated:
33
Rylands v. Fletcher was a case of adjoining landowners, but it was
soon recognized that there was no reason to limit the rule to activities
on the defendant’s own land. It has been applied to water, gas or
electric conduits under the public highway and to dangerous vehicles
driven along it. The doctrine, as it has developed, has become one
of “dangerous” things and activities, involving a high degree of
risk to those in the vicinity even if all possible care is used. They
have been called “ultrahazardous,” or “inherently dangerous.”
The basis of liability is an undue risk, in spite of all reasonable
precautions.
Prosser, Nuisance Without Fault, 20 TEX. L. REV. at 403 (internal quotations, footnotes and
ellipses deleted; boldfacing added).
Accordingly, where Likes discusses strict-liability for non-natural conditions, that
discussion – which embraces the body of jurisprudence imposing strict liability for dangerous
things and activities – must be understood as limiting strict liability to conduct that is inherently
dangerous for that location. See, e.g., Parson v. Texas City, 259 S.W.2d 333, 336 (Tex. Civ.
App.—Fort Worth 1953, writ ref’d) (and cases cited) (“the weight of authority in this state and
other jurisdictions is to the effect that to constitute a nuisance the danger must be inherent in the
thing itself, beyond that arising from negligence in its use.”).
3. Rylands and the Restatement: Strict Nuisance Liability in Texas for
Ultrahazardous and Inherently Dangerous Conditions.
Although the American Law Institute does not expressly state that the Restatement’s
articulation of liability for engaging in ultrahazardous or abnormally dangerous activities is an
attempt to codify Rylands, most courts agree that this has been the intent of the authors.8 There
8
See, e.g., Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295, 297 (Nev. 1993) (“The doctrine of Rylands
has been explained and codified in the Restatement (Second) of Torts, section 519 (1977).”); N. Little Rock
Transp. Co. v. Finkbeiner, 243 Ark. 596, 608 (Ark. 1967) (“These sections [Speaking of the 1939
Restatement of Torts §§ 519, 520] are nothing more than a codification of the principle of Rylands v.
34
are two Texas cases that have adopted the evolving Restatement position on strict nuisance
liability, one from the Supreme Court and the other from this Court of Appeals.
In City of Houston v. Renault, Inc., 431 S.W.2d 322, 325 (Tex. 1968), in its discussion
of the requisite elements of fault to establish a claim for diverting or impounding surface water,
the Supreme Court approved the liability standard articulated in Section 833 of the
RESTATEMENT (First) OF TORTS (ALI 1939):
According to the American Law Institute, the liability of one who
causes an unintentional but substantial invasion of the land of another
by interfering with the flow of surface water depends upon whether
his conduct was negligent, reckless or ultrahazardous. Where the
invasion is intentional, liability depends upon whether the invasion
was unreasonable. An invasion is intentional within the meaning of
these rules when the defendant acts for the purpose of causing it or
knows that it is resulting or is substantially certain to result from his
conduct. See Restatement, Torts, § 833 and comments thereunder. In
our opinion this is the sound and better rule in the absence of a statute
governing the rights and obligations of the parties . . . .
Id. (emphasis added).
Section 833 is not a stand-alone rule for surface water diversion cases, but rather,
incorporates by reference the general nuisance principles embodied by Sections 822 through 831
of the First Restatement.9 The Restatement categorizes surface water diversion as a specific
form of nuisance. See id., at comment a; see also RESTATEMENT (Second) OF TORTS § 833,
Fletcher . . . .”); Albig v. Mun. Auth.y of Westmoreland County., 502 A.2d 658, 662 (Pa. Super. 1985) (“In
1938, however, the doctrine of Rylands v. Fletcher was incorporated into and articulated by the American
Law Institute’s Restatement of Torts.”); Branch v. W. Petroleum, Inc., 657 P.2d 267, 273 (Utah 1982)
(“That doctrine [Rylands v. Fletcher] was the genesis of § 519 of the Restatement of Torts . . . .”).
9
Section 833 reads: “Non-trespassory invasions of a person’s interest in the use and enjoyment of land
resulting from another’s interference with the flow of surface water are governed by the rules stated in §§
822-831.” RESTATEMENT (First) OF TORTS § 833 (ALI 1939).
35
comment a (ALI 1971) (“Interference with the flow of surface water is one form of conduct that
may result in a private nuisance.”). Renault’s reference to “ultrahazardous” activities derives
from Section 822 of the First Restatement, which, in turn, recognizes general nuisance liability
where the invasion of property rights is “either (i) intentional and unreasonable; or (ii)
unintentional and otherwise actionable under the rules governing liability for negligent, reckless
or ultrahazardous conduct.” RESTATEMENT (First) OF TORTS § 822(d) (ALI 1939) (emphasis
added).10 In Section 522, the First Restatement defines an activity as “ultrahazardous” “if it (a)
necessarily involves a risk of serious harm to the person, land or chattels of others which cannot
be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage.” Id.,
at § 520.
Some two decades later, in Bily v. Omni Equities, Inc., 731 S.W.2d 606, 611-12 (Tex.
App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.), this Court addressed a claim for surface
water diversion within the framework of the general nuisance liability standards of the Second
Restatement of Torts, published post-Renault. See Bily, 731 S.W.2d at 611 (“The [supreme]
court has adopted the reasoning of the American Law Institute as stated in the Restatement of
Torts (Second) in describing this common law action.”) (citing Renault). In accord with the
Second Restatement, this Court in Bily stated:
A private nuisance is a non-trespassory invasion of another’s interest
in the private use or enjoyment of land. [Restatement (Second) of
10
The Second Restatement is similar: RESTATEMENT (2d) OF TORTS § 822 (1977) (“One is subject to
liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest
in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b)
unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct,
or for abnormally dangerous conditions or activities.”) (emphasis added).
36
Torts] at § 821D. The invasion can be intentional or unintentional.
When the invasion is intentional, liability depends upon whether the
invasion was unreasonable. Id. at § 822 and § 833 comment b. If the
invasion is unintentional, liability depends upon whether the
defendant’s conduct was negligent, reckless, or abnormally
dangerous. Id.
Id. at 611-612 (emphasis added).11
The most recent iteration of the ALI on the topic of strict nuisance appears in Section 20
of the Third Restatement of Torts.12 Section 20 has not been adopted (or even yet discussed)
by any Texas court; yet it is instructive in this case for two reasons. First, as discussed in the
commentary, Section 20 is a modern adaptation of the Rylands principle, whereby “non-natural
use” is understood to mean that the defendant’s land use is both unusual and distinctively
dangerous in its unusualness. Id., at comment d. Second, Section 20 of the Third Restatement
is intended to work in tandem with claims for strict liability nuisance under Sections 821 and
822 of the Second Restatement of Torts, which this Court cited approvingly in Bily. See id., at
comment c.
11
In defining the culpability element for strict liability, the Second Restatement’s “abnormally dangerous”
definition slightly alters the First Restatement’s “ultrahazardous activity” test. Section 520 of the
Restatement (Second) of Torts sets forth six factors relevant to the court’s determination of whether an
activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land
or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate
the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to
the community is outweighed by its dangerous attributes. Id.
12
See RESTATEMENT (3d) OF TORTS § 20(a) (ALI 1997), provides that “[a]n actor who carries on an
abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.”
Section 20(b) defines an activity as “abnormally dangerous if: (1) the activity creates a foreseeable and
highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the
activity is not one of common usage.” Id.
37
4. Strict Liability Does Not Apply to 1717's Proposed
Apartment Building.
No Texas case, and apparently none from any other jurisdiction, has applied nuisance
without fault to a complaint of this sort – that a residential structure is “just too big” in
comparison to neighboring residences. See, e.g., California Tahoe Regional Planning Agency
v. Jenkins, 591 F.2d 181 (9th Cir. 1971) (rejecting the claim that high-rise casinos near Lake
Tahoe created a nuisance by attracting more people and cars to the area, and reasoning that “not
every threatened injury can be enjoined as a potential nuisance. The line is not a bright one, but
we cannot consider high rise hotels and their occupants as indistinguishable from untreated
sewage, noxious gasses, and poisonous pesticides.”). As the district judge alluded to in his
memorandum opinion, zoning laws can be passed to preserve the integrity of single-family
residential districts. However, the voters of Houston have rejected zoning repeatedly (see 9 RR
177-78), and it is not the province of the judiciary to make nuisance liability strict merely upon
the sort of showing that might be pertinent before a zoning board of adjustment – that 1717's
proposed high rise residential use is “out of character” with the Plaintiffs’ existing single family
or duplex residential use.
In the present case, no evidence exists to prove that the Project as a whole, or that any
specific design feature of the Project, will be “conduct abnormal and out of place” in the legally
relevant sense – that the Project is both unusual and distinctively dangerous in its unusualness.
Likes, supra, at 504 (citing Prosser’s Nuisance Without Fault). Strictly speaking, the size of the
proposed building is not “conduct” in any sense (see, Likes, supra, at 503), but rather an
architectural feature of the Project. Furthermore, even if the strict liability standard in Texas
38
were based simply upon a discordant use – such as the proverbial pig in a parlor – there is no
evidence that strict liability applies on these facts. A residential highrise building in a
residential neighborhood are all residences – living spaces for human beings, not pigs.
The Plaintiffs’ claim that the highrise is too big for the neighborhood is nothing besides
a thinly-veiled indictment of the building’s aesthetics. See, e.g., Letter of Plaintiff Flatt (DX 93)
(commenting that the Project is “so preposterously out of scale that the contrast would both
diminish the beauty of the surrounding neighborhood and render ridiculous the pitiful window
dressing applied to its facade”). Proportionality lies in the eyes of the beholder. Curb appeal
does not justify common law nuisance abatement. See Dallas Land & Loan Co. v. Garrett, 276
S.W. 471, 474 (Tex. Civ. App.—Fort Worth 1917, no writ) (“Matters that annoy by being
disagreeable, unsightly, and undesirable are not nuisances simply because they may to some
extent affect the value of property.”).
Moreover, as discussed below, impact-by-impact, the Plaintiffs’ specific complaints about
certain design features of this particular Project do not trigger strict liability:
* Traffic and Increased Density. In Section VI.G.2. of this Brief, 1717 will demonstrate
that the Plaintiffs have no standing to complain about the increase of rush hour traffic on public
streets they do not own. In any event, nothing about the density of the Project – 228 apartment
units and four townhomes on 1.6 acres of inner city land – is unusual and distinctively
dangerous in its unusualness. See also cf. PROSSER & KEETON ON TORTS, § 88B, p. 633 (5th ed
1984) (“The fact that the activity is of the general kind permitted is relevant as indicating
something about the present and probable future character of the neighborhood.”) (footnotes
39
omitted); RESTATEMENT (Third) OF TORTS § 20, comment j (“automobiles are in such general
use that their operation is a matter of common usage. Accordingly, at least for this reason, the
operation of automobiles is not an abnormally dangerous activity.”). Thus, there is no evidence
to support the imposition of strict liability on the theory that the Project, if built, will increase
rush hour traffic in the neighborhood.
* Overlooking Vantage-Points. As the district court correctly noted, a common feature
of inner city life is that neighbors can see into one another’s backyards. (CR 1213). Even
before the 1717 highrise was contemplated, the backyards and exterior windows of several of
the Plaintiffs’ properties could be viewed from the two-story Maryland Manor Apartments. (See
Photos from Maryland Manor Apartments (DX 2); 10 RR 201-13). Complaints that residents
of the tower and their guests will be able to see window exteriors and backyards of some of the
Plaintiffs’ properties cannot support the imposition of strict liability. See RESTATEMENT (3d)
OF TORTS § 20, comment j (“An activity that is normal or usual is not abnormally dangerous.”).
In addition, the danger of being observed by peeping toms is not an inherent danger of
the Project, any more than automobile accidents are an inherent danger of a street. The invasion
of privacy must be committed by a third person, the prospective peeping tom. Strict liability
is inappropriate where, as here, the intentional conduct of actors other than the defendant will
determine whether any privacy invasion may later occur. RESTATEMENT (3d) OF TORTS, § 320,
at comment h. Finally, in determining whether an activity is abnormally dangerous, it is also
appropriate for the court to consider whether the harm is one the plaintiff can avoid by the
exercise of due care. Id. (“an activity is not inherently and unavoidably dangerous if reasonable
40
precautions by potential victims can commonly succeed in avoiding injuries”). Drawing
curtains prevents neighbors from peering into the private spaces of homes. Accordingly, the
vantage-points from the proposed high-rise building do not bring the Project within the principle
of Rylands v. Fletcher.
* Auger Cast Pile Foundation. Deep auger-cast pile foundations are common for large
buildings. (10 RR 23-26, 35-36). The common usage of this type of foundation alone defeats
the claim of strict liability. RESTATEMENT (Third) OF TORTS § 20, comment j (“the activity is
not abnormally dangerous if it is in common usage”). Moreover, there is no proof that a large
building on auger cast piles is inherently dangerous, even for this location. See id., comment
h. No proof exists to show that the dangers forecast by Plaintiffs’ geotechnical expert, Mr.
Ellman, could not be eliminated entirely simply by redesigning the foundation, such as by
deepening the piers.13 Therefore, strict liability cannot be predicated on the theory that the
foundation is abnormally dangerous.
* Garage Lighting. In addition to the absence of pleadings to support a finding of
nuisance on the basis of excessive lighting, there is no evidence that the type of lighting
approved by the City of Houston for the parking garage of the Project will be abnormal and out
of place in its surroundings in the relevant sense. See Settlement Agr. (DX 9). Ambient light
is ubiquitous in the inner city. The commonality of this condition alone defeats the claim for
13
During the balancing-of-the-equities hearing, 1717 offered unrebutted expert testimony establishing that
the differential settlement as predicted by the Plaintiffs could be avoided by simply deepening the piles by
approximately 15 to 20 feet, to reach the layer of compacted sand lying at a depth of 112 feet. (17 RR 112-
25). Out of an abundance of caution, 1717 has adopted this proposal as part of its construction plans. (17
RR 73-75).
41
strict liability based on lighting.14 In addition, there is no proof that ambient light cannot be
reduced or even blocked altogether by the exercise of reasonable care. Thus, there is no
evidence to support the imposition of strict liability on the theory that the lighting of the garage
will be abnormally dangerous.
* Construction Annoyances. In addition to the absence of pleadings to support a nuisance
due to construction noises, there is no evidence that the type of building construction
contemplated at the Project site will be abnormal and out of place in its surroundings. See
PROSSER & KEETON ON TORTS, § 78, p. 551 (5th ed 1984) (“conditions and activities to which
courts have refused to apply Rylands v. Fletcher . . . have been what the English courts would
regard as a “natural” use of land, and not within the rule at all. They include . . . vibrations from
ordinary building construction. . . .”) (footnotes omitted).
* Shadow Effect. Every building casts a shadow; hence, shadows are common wherever
buildings are common, such as inside inner city areas. Accordingly, strict liability cannot be
imposed for damages allegedly caused by shadows.
* * * * *
In summary, as a matter of law, strict liability does not apply on these facts. No evidence
exists to prove that the Project, if built, will be abnormal and out of place under the principle
of Rylands v. Fletcher. Thus, the Court should disregard all of the jury’s affirmative findings
of strict liability (Question 1) and render judgment for 1717 against all Prevailing Plaintiffs.
14
Plaintiffs made no attempt to show the delta between the garage lighting as proposed for the Project and
the level of lighting produced by Maryland Manor Apartments. (4 RR 240-41).
42
F. No Pleadings Exist to Support Claims Based on Excessive Light and
Construction-Related Annoyances.
The Court lacks jurisdiction to enter judgment on unpled claims. Latch v. Gratty, Inc.,
107 S.W.3d 543, 546 (Tex. 2003); Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991) (“A
trial court judgment must conform to the pleadings of the parties.”) (citing TEX. R. CIV. P. 301).
In this case, the Plaintiffs did not plead that they would be annoyed by lighting from the
Project’s garage. See 7th Amd. Pet. (CR 417-33). In addition, the Plaintiffs did not plead that
temporary noises or other temporary annoyances from the construction of the Project will
constitute a nuisance. Id. Accordingly, any claim for a nuisance based upon excessive lighting
or construction-related annoyances was waived. The district court therefore erred in denying
this ground of 1717's motion for JNOV. (CR 774).
G. There Is No Evidence That the Project, If Built, Will
Substantially Interfere with the Use and Enjoyment of Non-
Abutting Plaintiff Properties.
To prove that the Project, if built, will be a nuisance, Plaintiffs needed to prove that the
Project will substantially interfere with the use and enjoyment of their land. CR 733; see also
Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). In this case, Plaintiffs complained at trial
of several features of the prospective Project that allegedly will cause some, or all of them,
unreasonable discomfort or annoyance – additional traffic, shadow, loss of property value,
foundation problems (for the abutting Plaintiffs only), excessive light, invasion of privacy, and
construction-related annoyances.
For the reasons demonstrated below, no evidence exists to support a finding that any of
these alleged impacts, taken together or in seriatim, will substantially interfere with the use or
43
enjoyment of the properties owned by any of the 16 Prevailing Plaintiffs whose properties do
not abut 1717 Bissonnet (the non-abutting Plaintiffs).15
1. No Non-Abutting Plaintiff Will Experience Foundation
Damage.
Because the Plaintiffs’ geotechnical expert did not testify that the Project would damage
the properties of the non-abutting Plaintiffs, the district court granted a directed verdict for 1717
to the extent that the claims of the non-abutting Plaintiffs were based on the allegation that the
Project, if built, would damage their foundations. (9 RR 144-47, 163; CR 697-98).
2. Any Increase of Traffic on Public Streets Will Not Constitute
Substantial Interference with the Use and Enjoyment of the
Non-Abutting Plaintiffs’ Properties.
Private nuisance is distinguished from public nuisance. RESTATEMENT (2d) OF TORTS §
822 cmt. a (1977); see also Wallace v. Horn, 506 S.W.2d 325, 329 (Tex. Civ. App. —Corpus
Christi 1974, writ ref’d n.r.e.). Private nuisance is an invasion of a particular landowner’s use
and enjoyment of his or her own property; whereas public nuisance is an “unreasonable
interference with a right common to the general public.” RESTATEMENT, supra, § 821B(1); see
also Soap Corporation of America v. Balis, 223 S.W.2d 957 (Tex. Civ. App.—Fort Worth 1949,
writ ref’d n.r.e.) (“A nuisance is public if it affects a community at large, or if it affects a place
where the public have a right to and do go, such as a park, street, or alley, and which nuisance
necessarily annoys, offends, or injures those who come within the scope of its influence.”).
15
The non-abutting Plaintiffs are: (a) Lam Nguyen & Katherine Huong; (b) Suzanne Powell; (c) Michelle
Jennings & Michael Tetzlaff; (d) James & Allison Clifton; (e) Kimberly Bell; (f) Richard & Mary Baraniuk;
(g) Kenneth Reusser & Xanthi Couroucli; (h) Stephen Roberts; (i) Earle Martin; and (j) Norman & Suannah
Rund.
44
City streets are public property. West v. City of Waco, 116 Tex. 472, 294 S.W. 832, 833-
34 (1927). Obstructions that impede traffic flow on public streets can thus be public nuisances.
RESTATEMENT, supra, § 821B, comment b (public nuisances include “interference with . . . the
public convenience, as by the obstruction of a public highway”). However, that a traffic jam
occurs on public streets in proximity of the plaintiff’s residence and creates a mere
inconvenience for the plaintiff does not, by itself, confer standing on the plaintiff to complain
of the public nuisance. See RESTATEMENT, supra, § 821C, comment b (“when a public highway
is obstructed and all who make use of it are compelled to detour a mile, no distinction is to be
made between those who travel the highway only once in the course of a month and the man
who travels it twice a day over that entire period”).
Generally, private individuals lack standing to bring public nuisance suits. See City of
San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, 755 (1888) (“[N]o action lies to restrain an
interference with a mere public right, at the suit of an individual who has not suffered or is not
threatened with some damage peculiar to himself.”). Standing requires a showing the plaintiff
has suffered a special damage peculiar to himself. See McQueen v. Burkhart, 290 S.W.2d 577,
579 (Tex. Civ. App.—Austin 1956, no writ) (“[W]hile an obstruction in a public road or street
may constitute a public nuisance, for the abatement of which the government may maintain an
equitable action, it does not follow that an individual citizen can obtain such relief merely by
proof of the existence of such nuisance. He must go further and prove that it causes special and
material injury to some property right of his.”) (quoting Ingram v. Turner, 125 S.W. 327, 329
(Tex. Civ. App.—Fort Worth 1910, writ ref’d) (emphasis added)). Sporadic traffic jams do not
45
support liability for blocked access to private property. See, e.g., State v. Heal, 917 S.W.2d 6,
11 (Tex. 1996) (“even when there is congestion, access is not materially and substantially
denied”).
In this case, the Plaintiffs alleged that the Project, if built, would significantly increase
traffic through the public streets of the neighborhood, “creating unreasonable delays and
negatively impacting the safety of its residential streets.” See 7th Amend, Pet., at ¶ 22. At the
Plaintiffs’ request, however, the trial court submitted the case solely on the basis of an alleged
private nuisance – a claim for interference with the use and enjoyment of “their land.” See Jury
Q No. 1 (CR 733). Over 1717's charge objection, the trial court refused to ask the jury one of
the essential elements of a claim for public nuisance by these private parties – that is, whether
any of the Plaintiffs will, if the Project is built, suffer some special, traffic-related injury distinct
from delays and annoyances to be suffered by members of the general public. (14 RR 15). Nor
did Plaintiffs request the court to submit this essential standing element to the jury.
Nor is there any evidence that the prospective increase in traffic in the vicinity of each
non-abutting Plaintiff’s tract will substantially interfere with the use and enjoyment of each such
Plaintiff’s property. See City of Somerset v. Sears, 313 Ky. 784, 233 S.W.2d 530, 532 (1950)
(“The principal objection seems to be that up to a maximum of 400 automobiles for each show
will go in and out of the theatre entrance, thereby creating noises, lights and congestions on the
street in front of the theatre. We are not aware of any case which has ever gone so far as to hold
that the use of property for business purposes, which increases the traffic on the public streets
in the vicinity, constitutes a nuisance.”). None of the Plaintiffs have alleged, proven, or
46
requested and received any jury finding that the Project would alter neighborhood traffic
patterns in such a manner as to inflict a special damage peculiar to “their land.”
In particular, the complete absence of evidence to show that Plaintiff Earl Martin has
standing to complain about the prospect of increased traffic is fatal to his nuisance claim.
Martin did not adduce a shred of evidence to prove that his property will be impacted by the
Project in any way; his fear of increased traffic was his only complaint at trial. (3 RR 250-90;
4 RR 13-47). The liability finding for Martin (Q 1(24), CR 734) must therefore be vacated and
the judgment for Martin reversed and rendered in favor of 1717. As to the other prevailing non-
abutting Plaintiffs, the lack of standing is similarly fatal. The district court erred in denying
1717's motion for JNOV to the extent the liability findings for any of the Plaintiffs depends
upon a subsumed finding that the Project, if built, will create traffic-related annoyances. (CR
760-62).
3. Shadow from the Tower Will Not Constitute Substantial
Interference.
The Plaintiffs’ claim that the shadow cast by the proposed 21-story apartment building
is an invasion of their property rights harkens back to the long-discredited English common law
doctrine of ancient lights. Texas, like most other states, has repudiated that doctrine. See Klein
v. Gehrung, 25 Tex. 232 (Tex. 1860).
“Since the American common law has rejected the English doctrine of ‘ancient lights,’
there is no duty to avoid building on your property in such a way as to cut off a neighbor’s
access to natural light.” Justice v. CSX Transp., Inc., 908 F.2d 119, 122 (7th Cir. 1990) (Posner,
J.); see also Fontainebleau Hotel Corp. v. Forty-five Twenty-five, Inc., 114 So. 2d 257 (Fla.
47
Ohio App. 1959) (holding that asserted that nuisance law protects only those interests “which [are]
recognized and protected by law,” and that there is no protected right to access to sunlight.).
Moreover, even if Texas were to recognize a claim for blocked sunlight under some
circumstances, there is no evidence on this record to show that the shadow effect of the
proposed Project will substantially interfere with the use and enjoyment of each Plaintiff’s
property. Accordingly, the judgment for the Plaintiffs cannot be grounded on proof that the
building, if built, will cast a shadow.
4. Visual Access to the Non-Abutting Plaintiffs’ Yards and
Window Exteriors Will Not Constitute Substantial
Interference.
Although the Plaintiffs did not plead or prove a stand alone invasion of privacy claim, the
tort of invasion of privacy is embedded in their nuisance claims – the Project, they claim, will
facilitate an invasion of privacy by future high rise tenants who might look into their back yards.
No evidence exists to prove a nuisance on this hybrid theory.
First of all, there is no evidence to suppose that future tenants of the Project will invade
the Plaintiffs’ privacy. Invasion of privacy requires more than a mere passing glance into a
neighboring backyard . It requires an intentional intrusion upon the seclusion of another that
is highly offensive to a reasonable person. GTE Mobilnet of S. Texas Ltd. Pshp. v. Pascouet,
61 S.W.3d 599, 618 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). “One cannot expect
to be entitled to seclusion when standing directly in front of a large window with the blinds open
or while outside.” Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.—Tyler 2006, no pet.);
see also GTE Mobilnet, 61 S.W.3d at 618 (“The mere fact that maintenance workers come to
48
an adjoining property as part of their work and look over into the adjoining yard is legally
insufficient evidence of highly offensive conduct.”).16 cf. Manuel v. Cresleigh Homes Corp.,
2007 Cal. App. Unpub. LEXIS 9789, at *13-14 (Cal. App. 3d Dist. Dec. 4, 2007) (“where (as
here) a two-story house is properly permitted and constructed in accordance with the law, the
owner of an adjacent one-story home cannot claim a reasonable expectation of privacy in his
or her backyard as against observations made from the adjacent two-story house”) (emphasis
added); State ex rel. Reich v. City of Beachwood, 158 Ohio App. 3d 588, 820 N.E.2d 936, 940
(2004) (rejecting claim for nuisance-based taking where defendant constructed a large building
with sleeping quarters that overlooked the plaintiff’s backyard).
5. The Garage Lighting Will Not Constitute Substantial
Interference.
Even if garage lighting had been pled as a basis for nuisance – which it was not – no
competent evidence exists to show that any of the non-abutting properties will experience light
of such intensity as to substantially interfere with the use and enjoyment of those properties.
16
See also, e.g., United States v. Johnson, 561 F.2d 832, 842 (D.C. Cir.) (not unreasonable for officer who
observed narcotics operation through open window to wait half an hour for reinforcements before entering),
cert. denied, 432 U.S. 907 (1977); State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981) (not a search for
police to look through window of front door, take photographs of the interior, and enlarge the pictures to
reveal more detail); State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 740 (1975) (not unreasonable for
police without warrant to shine light through basement window to view stolen snowmobiles inside);
California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (holding that warrantless aerial observation of fenced-in
backyard within the curtilage of home was not unreasonable under the Fourth Amendment because the yard
was observable to any person traveling by air); cf. United States v. Conrad, 578 F. Supp. 2d 1016, 1029
(N.D. Ill. 2008) (“Fourth Amendment does not prohibit a police officer’s naked eye observations made of
a constitutionally protected area from the vantage point of a public place”).
49
6. Construction Activity Will Not Constitute Substantial
Interference.
Even if construction activity had been pled as a basis for nuisance – which it was not –
no competent evidence exists to show that any of the residents of the non-abutting properties
will experience dust, noise, or vibrations from the construction of the Project, let alone any
construction-related annoyances of such a magnitude as to substantially interfere with the use
and enjoyment of those properties.
* * * * *
Accordingly, the judgment for each non-abutting Plaintiff should be reversed and
rendered in favor of 1717, because no evidence exists to prove that the Project, if built, will
constitute a nuisance for each such Plaintiff.
H. Three Plaintiffs Failed to Prove Ownership.
A party has no justiciable interest and no standing to bring claims for damages to property
it does not own. See, e.g., Graves v. Diehl, 958 S.W.2d 468, 472 (Tex. App.—Houston [14th
Dist.] 1997, no writ). In order to recover under the merits of a nuisance claim, the Plaintiffs
needed to prove their standing. Freedman v. Briarcroft Property Owners, Inc., 776 S.W.2d 212,
215 (Tex. App.—Houston [14th Dist.] 1989, pet. denied).
Martha Gariepy (5308 Southhampton Estates) and James & Allison Clifton (1714
Wroxton Ct.) did not testify, and there is no other evidence proving that these three Plaintiffs
have any justiciable interest in the properties in question at the time of trial. Accordingly, the
verdict in favor of those Plaintiffs should be disregarded on the ground of lack of standing.
50
I. 1717 Should Recover Taxable Costs.
In its motion for judgment and for JNOV, 1717 requested an award of all of its taxable
costs against all Plaintiffs. (CR 751-52, 780). The trial court only awarded 1717 the cost of
nine deposition transcripts against the Losing Plaintiffs, and awarded the Prevailing Plaintiffs
all of their taxable costs. (CR 1717).
Since 1717 should have been deemed the successful party in this suit within the meaning
of TEX. R. CIV. P. 131, the Court of Appeals should thus reverse the award of costs to the
Prevailing Plaintiffs and award costs as the district court should have – all taxable costs of court
should be awarded to 1717. See TEX. R. APP. P. 43.2(c) (appeals court can render judgment that
the trial court should have rendered); Ashley v. Bizzell, 694 S.W.2d 349, 354-55 (Tex.
App.—San Antonio 1985, writ ref’d n.r.e.) (reversing and rendering cost award for appellant).
VII. PRAYER.
For the foregoing reasons, Appellant 1717 requests the Court to reverse the judgment for
each Prevailing Plaintiff, render a take-nothing judgment for 1717 as to each and every Plaintiff,
and render judgment that all Appellees, jointly and severally, pay 1717 its taxable appellate
costs and that all Plaintiffs, jointly and severally, pay 1717 all of its taxable costs in the district
court. Appellant also requests any other and further relief to which it may be entitled.
51
Respectfully submitted,
By: /s/ Ramón G. Viada III
Ramón G. Viada III
State Bar No. 20559350
VIADA & STRAYER
17 Swallow Tail Court
The Woodlands, Texas 77381
(281) 419-6338
(281) 419-8137 (Fax)
Email: rayviada@viadastrayer.com
H. Fred Cook
State Bar No. 04732500
WILSON, CRIBBS & GOREN, P.C.
2500 Fannin Street
Houston, Texas 77002
(713) 222-9000
(713) 229-8824 (Fax)
Email: hfcook@wcglaw.net
ATTORNEYS FOR APPELLANT
1717 BISSONNET, LLC
CERTIFICATE OF SERVICE
I certify that all counsel of record have been served a copy of the foregoing Appellant’s
Brief by electronic submission for filing and service on April 8, 2015, through an approved
EFSP of the Texas Online EFiling for Courts.
Jean C. Frizzell
Reynolds, Frizzell, Black, Doyle,
Allen and Oldham LLP
1100 Louisiana Street, 3500
Houston, Texas 77002
/s/ Ramon G. Viada III
Ramon G. Viada III
52
CERTIFICATE OF COMPLIANCE
Pursuant T.R.A.P. 9.4 (i)(3), the undersigned certifies that this Brief complies with the
type-volume limitations of T.R.A.P. 9.4 (i)(2)(D).
1. Exclusive of the exempted portions of T.R.A.P. 9.4(i)(1), this Brief contains
13,648 words as indicated by the word count function of the below referenced
software.
2. This Brief has been prepared in proportionally space typeface using:
Typeface and Font Size: Times New Roman, 14 pt; footnotes are in 12.5 pt. size.
/s/ Ramon G. Viada III
Ramon G. Viada III
53
CAUSE NO. 2013-26155
ORIGINAL p//
Penelope Lougbhead, et al. § IN THE DISTRICT COURT OF
§
v. §
§
1717 Bissonnet, LLC § 157th JUDICIAL DISTRICT
CHARGE OF THE COURT
Members of the Jury:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason. I have given you a number where others may contact you in case of
an emergency.
Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the
bailiff will promptly destroy your notes so that nobody can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias, prejudice, or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
730
3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you
must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question or
answer is not important.
6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer
must be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than "yes" or "no," your answer must be based on a
preponderance of the evidence unless you are told otherwise.
The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
7. Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Some questions might ask you for a dollar amount. Do not agree in advance to decide
on a dollar amount by adding up each juror's amount and then figuring the average.
10. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."
11. Unless otherwise instructed, the answers to the questions must be based on the
decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not
agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses
731
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.
Definitions
A. Plaintiffs mean the property owners who are plaintiffs in this action:
1. Luong Nguyen, 1750 Wroxton Ct.
2. Lam Nguyen & Katherine Hoang, 1801 Bissonnet
3. Jamie Flatt, 1740 Wroxton Ct.
4. Penelope Loughhead, 1736 Wroxton Ct.
5. Donald Verplancken, 1734 Wroxton Ct.
6. Norman & Suannah Rund, 1726 Wroxton Ct.
7. Achim & Diana Bell, 5300 Southhampton Estates
8. Jeanne Meis, 5302 Southhampton Estates
9. Mary Van Dyke, 5304 Southhampton Estates
10. Ralph & Leslie Miller, 5306 Southhampton Estates
11. Yin & Surong Zhang, 5310 Southhampton Estates
12. Martha Gariepy, 5308 Southhampton Estates
13. Stephen Roberts, 1804 Wroxton Rd.
14. Suzanne Powell, 5305 Southhampton Estates
15. Michelle Jennings & Dr. Michael Tetzlaff, 5309 Southhampton Estates
16. James & Allison Clifton, 1714 Wroxton Ct.
17. Kimberley Bell, 1729 Wroxton Ct.
18. Richard & Mary Baraniuk, 1731 Wroxton Ct.
19. Dinzel Graves, 5219 Dunlavy
20. Kenneth Reusser & Xanthi Couroucli, 1801 Wroxton Rd.
21. Sarah Morian & Michael Clark, 1810 Bissonnet
22. Marc Favre-Massartic, 1812 Bissonnet
23. Raja Gupta, 1808 Wroxton Rd.
24. Earle Martin, 1811 Wroxton Rd.
25. Laura Lee & Dico Hassid, 1731 South Blvd.
26. Peter & Adriana Oliver, 5219 Woodhead
27. Ed Follis, 1823 Bissonnet
28. Frank & Jeanette Stokes, 1826 Wroxton Rd.
29. Steven Lin & Dr. Yi-Wen Michelle Pu, 1710 South Blvd.
30. Howard & Phyllis Epps, 1936 Wroxton Rd.
B. "1717 Bissonnet" means the defendant 1717 Bissonnet, LLC.
C. The "Project" means the 21-story mixed-use building that 1717 Bissonnet proposes to
construct at the comer of Bissonnet Road and Ashby St.
732
Question No.1:
Is 1717 Bissonnet's proposed Project abnormal and out of place in its surroundings such
that it will constitute a private nuisance if built?
1717 Bissonnet creates a "private nuisance" if its Project substantially interferes with
Plaintiffs' use and enjoyment of their land.
"Substantial interference" means that the Project must cause unreasonable discomfort or
unreasonable annoyance to a person of ordinary sensibilities attempting to use and enjoy the
person's land. It is more than a slight inconvenience or petty annoyance.
A nuisance, if it exists, is not excused by the fact that it arises from an operation that is in
itself lawful or useful.
Answer "Yes" or "No" for each plaintiff:
Plaintiff Answer
1. Luong Nguyen
1750 Wroxton Ct. ~es
2. Lam Nguyen & Katherine Hoang
1801 Bissonnet
3. Jamie Flatt
1740 Wroxton Ct.
4. Penelope Loughhead
1736 Wroxton Ct.
5. Donald Verplancken
1734 Wroxton Ct.
6. Norman & Suannah Rund
1726 Wroxton Ct.
7. Achim & Diana Bell
5300 Southhampton Estates
8. Jeanne Meis
5302 Southhampton Estates
9. Mary Van Dyke
5304 Southhampton Estates
733
10. Ralph & Leslie Miller
5306 Southhampton Estates \\e~
11. Yin & Surong Zhang
5310 Southhampton Estates \le'J
12. Martha Gariepy
5308 Southhampton Estates jt~
13. Stephen Roberts
1804 Wroxton Rd. '\t::S
14. Suzanne Powell
5305 Southhampton Estates '\ ( -~
15. Michelle Jennings & Dr. Michael Tetzlaff
5309 Southhampton Estates "\ e ~)
16. James & Allison Clifton
1714 Wroxton Ct. ~cs
17. Kimberley Bell
1729 Wroxton Ct. \\ cs
18. Richard & Mary Baraniuk
1731 Wroxton Ct. '-1 ( ~
19. Dinzel Graves
5219 Dunlavy NC
20. Kenneth Reusser & Xanthi Couroucli
1801 Wroxton Rd. '{ L:>
21. Sarah Morian & Michael Clark
1810 Bissonnet r0r>
22. Marc Favre-Massartic
1812 Bissonnet NO
23. Raja Gupta
1808 Wroxton Rd. MD
24. Earle Martin
1811 Wroxton Rd. "\ t:;
734
25. Laura Lee & Dico Hassid
1731 South Blvd. f..S (._-~,
26. Peter & Adriana Oliver
5219 Woodhead 1\lo
27. Ed Follis
1823 Bissonnet f-.!0
28. Frank & Jeanette Stokes
1826 Wroxton Rd. ~0
29. Steven Lin & Dr. Yi-Wen Michelle Pu
1710 South Blvd. ~0
30. Howard & Phyllis Epps
1936 Wroxton Rd. f-10
735
Answer Question 2 if you answered "Yes" for any plaintiff in Question No. 1. Answer
only with respect to those plaintiffs, if any, for whom you answered "Yes" in Question No. 1.
Otherwise, do not answer Question No. 2.
Question No.2:
What sum of money, if paid now in cash, would fairly and reasonably compensate
plaintiffs for their damages, if any, proximately caused by the nuisance?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum of money on any element if you have otherwise, under some
other element, awarded a sum of money for the same loss. That is, do not compensate twice for
the same loss, if any. Do not include interest on any amount of damages you find.
1. Loss of Market Value. Consider the difference in market value of each plaintiffs
property caused by the nuisance. Market value means the amount that would be paid
in cash by a willing buyer who desires to buy, but is not required to buy, to a willing
seller who desires to sell, but is under no necessity of selling.
2. Loss ofUse and Enjoyment of the Property.
Answer separately, in dollars and cents, for damages, if any.
Plaintiff Loss of Market Loss ofUse &
Value Answer Enjoyment Answer
1. Luong Nguyen
1750 Wroxton Ct. 1>E~,c-sc- I ri It ZO, ').[;
2. Lam Nguyen & Katherine Hoang
1801 Bissonnet 2J)q~L -L5" ;) '5, q3 2, )/j'
3. Jamie Flatt
1740 Wroxton Ct. 55 't' ~y~ 2[_ 2__'L2
I
4. Penelope Loughhead
1736 Wroxton Ct. qo, LP8 22.15'72..
5. Donald Verplancken
1734 Wroxton Ct. .
'721 21:)2 16, etc~
6. Norman & Suannah Rund
1726 Wroxton Ct. tfbtroD 24-J5'7 /)o
7. Achim & Diana Bell
5300 Southhampton Estates <6' o•/f~lfY-1- 201 il rt 7 fL
736
8. Jeanne Meis
5302 Southhampton Estates I 1, ~qf.2D 1 t1 .Ci'7:2- [{o
9. Mary Van Dyke
5304 Southhampton Estates <2~.I IC ~6
· I
(c;O f '7 1 r1 30 •12
10. Ralph & Leslie Miller
5306 Southhampton Estates q'f-. 5J-fli &c
i
I<6/1C5:' 7(?
J
11. Yin & Surong Zhang
5310 Southhampton Estates /02,H-P5·DC 2D, 41ft. bt
12. Martha Gariepy
5308 Southhampton Estates <6 '6, Ot/5 OD I '7 {f /'?:>.co
13. Stephen Roberts
1804 Wroxton Rd. 4-1 ~q~.60 4-?.' ~ q_3,5o
14. Suzanne Powell
5305 Southhampton Estates 7-.tt {qL `` 1~,41/J. /2
15. Michelle Jennings & Dr. Michael Tetzlaff
5309 Southhampton Estates 11,. fL/',.{)() 1t, 74/--, Do
16. James & Allison Clifton
1714 Wroxton Ct. :J_~ ~"50. 3 0 I (lq l'o ,,}V
i
17. Kimberley Bell
1729 Wroxton Ct. )~.t21-fX, ``~{_~CD
' '
18. Richard & Mary Baraniuk
1731 Wroxton Ct. ,1J, 5``.cji
I
llf1 .3Cf1 86
19. Dinzel Graves
5219 Dunlavy 0 C)
20. Kenneth Reusser & Xanthi Couroucli
1801 Wroxton Rd. 3 3/tJ'3{p. (p_ ~
i
3~&3~. ~1
21. Sarah Morian & Michael Clark
1810 Bissonnet
([) ~
22. Marc Favre-Massartic
1812 Bissonnet c_: t)
737
23. Raja Gupta
1808 Wroxton Rd.
(~
'"- _,/
c_;,
24. Earle Martin
1811 Wroxton Rd. 3lt8t3-:?a 3tplf;L?,S8
25. Laura Lee & Dico Hassid
1731 South Blvd. 0 0
26. Peter & Adriana Oliver
5219 Woodhead C)
27. Ed Follis
1823 Bissonnet 0 D
28. Frank & Jeanette Stokes
1826 Wroxton Rd. 0 / 0
29. Steven Lin & Dr. Yi-Wen Michelle Pu
1710 South Blvd. 0
30. Howard & Phyllis Epps
1936 Wroxton Rd. c)
738
Presiding Juror:
1. When you go into the jury room to answer the questions, the first thing you will need to do is
choose a presiding juror.
2. The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and see that you
follow these instructions;
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.
Do you understand the duties ofthe presiding juror? If you do not, please tell me now.
Instructions for Signing the Verdict Certificate:
1. Unless otherwise instructed you may answer the questions on a vote of 10 jurors. The
same 10 jurors must agree on every answer in the charge. This means you may not have one
group of 10 jurors agree on one answer and a different group of 10 jurors agree on another
answer.
2. If 10 jurors agree on every answer, those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding juror
signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only 10 or 11 of you agree on other answers. But when you
sign the verdict, only those 10 who agree on every answer will sign the verdict.
Do you understand these instructions? If you do not, pl
739
Verdict Certificate
Check one:
A Our verdict is unanimous. All 12 of us have agreed to each and every answer. The
presiding juror has signed the certificate for all 12 of us.
Printed Name of Presiding Juror
Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the certificate below.
Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
SIGNATURE NAME PRINTED
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
740
CAUSE NO. 2013-26155
Penelope Loughhead, et al. § In the District Court of
§
v. § Harris County, Texas
§
1717 Bissonnet, L.L.C. § 15Th Judicial District
Opinion and Order
In November and December 2013, this case was tried to a jury. That jury found that a
proposed high rise development at 1717 Bissonnet would constitute a nuisance if built to 20 of
30 plaintiff homeowners who lived near the proposed project. That same jury awarded damages
to those 20 prevailing plaintiffs. The 20 prevailing plaintiffs have now moved this Court for a
permanent injunction enjoining the defendant from constructing the project rather than awarding
damages. For the reasons stated here and in defendant's opposition briefs, plaintiffs' request for
a permanent injunction is denied. The Court instead enters judgment awarding partial damages
to the prevailing plaintiffs and a take nothing judgment to the 10 plaintiffs who did not prevail.
I. Factual Background
This case involves a 1.6 acre tract located at 1717 Bissonnet (the "Property"). Since the
early 1960's, Maryland Manor Apartments occupied the Property, ultimately growing to 67
units. In 2007, Buckhead Investment Partners acquired Maryland Manor and began plap.s to
construct a 23 story multi-use development consisting of a five-level parking garage and 18
floors of apartments. On July 30, 2007, Buckhead filed its foundation and site work permit
application with the City of Houston and on August 28, 2007, Buckhead advised the
1
neighborhood association of its plans. The neighborhood opposition was rapid and intense. A
FILED
Chris Daniel
1 District Clerk
Defendant's Ex. 104.
MAY 1 ·d-Q I~
1
Time: -----:-:--:---:----.---------
Ha.n-:.CC''.miy. T&X:J!i
RECORDER'S MEMORANDUM
BY---------,``--------­
This Instrument Is of poor quality
at the time of Imaging
O&;:..ny
1199
neighborhood group called Stop Ashby High Rise was created and
..... p
signs in opposition to the Project appeared throughout the
HBY
neighborhood. HIGH
The City of Houston initially approved the developer's Traffic ~J~;~r~.aRISE
Impact Analysis on September 4, 2007. However, on September 28, 2007, in response to
neighborhood opposition, that approval was rescinded. Over the next several years, Buckhead
revised its applications ten times; each time the application was rejected. In August 2009,
Buckhead submitted a revised application under protest and subject to challenge of the project's
previous denials. 2 On August 25, 2009, the City of Houston approved the revised project.
Although the revised application was approved by the city, Buckhead continued to press for
approval of the original application. In October 2009, Buckhead appealed the denial of its
building permit to the City of Houston's General Appeals Board. The Appeals Board rejected
the appeal and in December 2009, the Houston City Council upheld the decision of the Appeals
Board. On April 9, 2010, Buckhead and Maryland Manor Associates filed suit against the city in
federal court3 complaining that Buckhead's previous applications were wrongfully denied. In
February 2012, the City of Houston and Buckhead settled the federal action. In return for
dismissing the lawsuit, the City of Houston agreed to approve the project provided the following
changes were made:
• The project would be a 21 (rather than 23 as requested by Buckhead) story residential or
mixed-use residential and commercial development on the Property with 228 residential
high-rise units, 10,075 square feet of restaurant use, and four residential townhouses (the
"Project");
2
The revised project application called for a project that would genemte only 120 p.m. peak hour automobile trips
onto and off of Bissonnet. The original application, the denial of which Buckhead complained, would have
fenerated a total of 184 p.m. peak hour trips.
The action was originally filed in the 151 st Dist. Court of Harris County, but was subsequently removed to federal
court by the City of Houston.
2
1200
• A pedestrian plaza must exist in the front of the Project with specified curb cuts on Ashby
and Bissonnet;
• Traffic mitigation measures must be implemented including shuttle service and making
bicycles available;
• Green wall screening must be constructed along the south and east walls of the parking
garage;
• Lighting must be hooded or directed away from adjacent residences; and
• Noise mitigation must be implemented. 4
This settlement agreement was publically announced on March 1, 2012.
II. Procedural Background
On January 14, 2013, Penelope Loughhead filed an action under Rule 202 of the Texas
Rules of Civil Procedure to obtain pre-suit discovery about the construction plans for the Project.
On March 4,, 2013, this Court ordered defendant to provide certain construction information to
plaintiff.
On May 1, 2013, six plaintiffs filed suit seeking damages and a permanent injunction to
5
stop the Project. Because of the previous Rule 202 suit, this action was transferred to this
Trial commenced on November 19,20137 and ended with ajury verdict on December 17,
2013. The jury determined that the Project, if built, would constitute a nuisance to the owners of
20 of the 30 homes, but did not constitute a nuisance to owners of 10 homes. The jury awarded
4
Defendant's Ex. 9.
s Over the next several months, many plaintiffs joined and exited the suit. At one point, there were more than 140
plaintiffs. However, many of those plaintiffs voluntarily withdrew their action. Ultimately, 45 plaintiffs
representing 30 homes went to trial.
6
Transferred by the Administrative Judge of the Civil Division pursuant to Harris County Local Rule 3.2.2.
7
Because this controversy had lingered for six years, this Court placed the matter on an accelerated trial schedule in
order to achieve a rapid resolution.
3
1201
damages to the homeowners of the twenty prevailing homes. A hearing was held on March 3 1,
20 J4 and April 21, 20 14 to determine whether and what type of judgment should be entered. 8
There are several motions pendjng before this Court. Defendant has flied a motion for
entry of j udgment, for judgment NOV and to rusregard jury findings. Specifically, defendant
requests that a take nothing judgment be entered against the homeowners of the ten homes who
lost at trial and that the court enter a judgment notwithstanding the verruct with respect to the
homeowners of the twenty homes who prevailed ("20 Prevailing Plaintiffs").
Similarly, plaintiffs have filed an application for permanent injunction. Plaintiffs are not
seeking damages in the event the Project is built. Rather, plaintiffs seek an injunction enjoining
construction of the Project as it is currently planned and permitted.
m. The Jury Verdict
Initial examination needs to be given to the jury verruct. The jury was asked whether the
Project, if constructed, would
constitute a nuisance to each
plaintiff. Plaintiffs were
numbered 1-30. (list attached as
Ex. A) Generally speaking,
plaintiffs imrneruately adjacent
to the Project prevailed and those
living farther away or to the
north lost. As this graphic demonstrates, plaintiffs in black (19, 21-23 ~ and 25-30) lost at trial.
Plaintiffs in yellow prevailed to varying degrees.
~ That hearing was originally scheduled for January 23. 2014, but at the request of the parties was moved to March
31, 20 14.
4
1202
Additionally, the jury was asked to assess damages to the prevailing plaintiffs in two
categories: (1) diminution of market value to plaintiffs' homes if the Project is built; and (2) loss
of use and enjoyment of their property if the Project is built. The jury awarded the 20 Prevailing
Plaintiffs approximately $1.2 million for diminution of property value and over $400,000 for loss
of use and enjoyment of their property.
IV. Defendant's Motion for .Judgment
As a threshold matter, defendant's motion for judgment against the plaintiffs in the ten
homes who lost at trial is an easy and straightforward motion. That motion is granted. A take
nothing judgment is entered against those plaintiffs.
V. Defendant's Motion for Judgment Notwithstanding the Verdict
A trial court may grant a motion for judgment notwithstanding the verdict if the evidence
is legally insufficient to support the jury's findings. Rocor lnt'l, Inc. v. National Union Fire Ins.
Co., 77 S.W.3d 253, 268 (Tex. 2002). Courts must view the evidence in the light favorable to
the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. !d. at 807.
The jury was asked the following question:
Question No. 1:
Is 1717 Bissonnet's proposed Project abnormal and out of place in its
surroundings such that it will constitute a private nuisance if built?
1717 Bissonnet creates a "private nuisance" if its Project substantially
interferes with Plaintiffs' use and enjoyment of their land.
"Substantial interference" means that the Project must cause unreasonable
discomfort or unreasonable annoyance to a person of ordinary sensibilities
attempting to use and enjoy the person's land. It is more than a slight
inconvenience or petty annoyance.
5
1203
A nuisance, if it exists, is not excused by the fact that it arises from an
operation that is in itself lawful or useful.
Thus, to prove that the Project was a private nuisance, plaintiffs had to show that it would
be "abnormal and out of place in its surroundings," and that it substantially interferes with
Plaintiffs' use and enjoyment of their land. In support of this proposition, plaintiffs argued that
the following factors constituted a nuisance:
• Increased traffic;
• Loss of privacy;
• Foundation damage to adjacent landowners due to settlement;
• Increased light to adjacent landowners;
• Construction annoyances; and
• Shadow cast by the Project with resulting vegetation damage.
The question of whether a lawful structure can constitute a nuisance is not a new or novel
issue to jurisprudence. Texas courts have long grappled with landowners complaining that
proposed structures on adjacent land would constitute a nuisance. For example, our supreme
court observed that "there is no question that foul odors, dust, noise, and bright lights-if
sufficiently extreme-may constitute a nuisance." Schneider Nat. Carriers, Inc. v. Bates, 147
S.W.3d 264,269 (Tex. 2004). See also Bay Petroleum Corp. v. Crumpler, 272 S.W.2d 318, 318-
20 (Tex. 1963)(affrrming jury verdict finding no nuisance since wind did not carry "obnoxious
gases, fumes, odors and stenches" from gas-storage operations to plaintiffs' land in substantial
quantities); Parsons v. Uvalde Elec. Light Co., 106 Tex. 212, 163 S.W. 1, 1-2 (1914)(affirming
jury verdict based on smoke, dust, and cinders from electric power plant); Rosenthal v. Taylor, B.
& H. Ry. Co., 79 Tex. 325, 15 S.W. 268, 269 (1891)(remanding nuisance claim base on stagnant
water, noise, dust, smoke, and cinders caused by railroad operations).
6
1204
In this case, defendant analyzes each of the complained of activities and argues that each
of them, standing alone, is insufficient to constitute a nuisance. Plaintiffs characterize this as a
divide and conquer argument. The court agrees with plaintiffs. The nuisance cases in Texas
demonstrate that all evidence, taken together, is to be considered in determining whether a
nuisance exists. See Freedman v. Briarcroft Property Owners, Inc., 776 S.W.2d 212,-270 (Tex.
App.-Houston [14th Dist.] 1989, writ denied)("whether a nuisance exists is a question to be
determined not merely by a consideration of the thing itself, but with respect to all attendant
circumstances"); Schneider, supra at 269 (foul odors, dust, noise and bright lights-if
sufficiently extreme-may constitute a nuisance"); GTE Mobilnet of South Texas, Ltd. v.
Pascouet, 61 S.W.3d 599, 615 (Tex. App.-Houston [14th Dist.] 2001, pet. denied)(combination
of noise and light constituted nuisance); Lamesa Co-op Gin v. Peltier, 342 S.W.2d 613, 616
(Tex. Civ. App.-Eastland 1961, writ refd n.r.e.)(loud noises, glaring lights, dust, odors, smoke
and cotton lint combined to support nuisance finding).
The jury determined that the various complained of activities constituted a nuisance.
There is sufficient evidence to support that finding. For the reasons stated in plaintiffs' response
to defendant's motion for entry of judgment, for judgment NOV and to disregard jury findings,
the jury's fmding of nuisance will not be overturned.
VI. Damages v. Injunction
Affirming the jury's finding of nuisance is by no means the end of the inquiry. The court
has, in effect, two options: permit the construction of the Project and award damages, or halt the
Project and award no damages. Damages and an injunction are mutually exclusive. If an
injunction is entered halting the Project, plaintiffs will suffer no damages. "Awarding both an
injunction and damages as to future effects would constitute a double recovery." Schneider,
7
1205
supra at 284. Plaintiffs have made it clear that they want an injunction rather than damages. For
the reasons stated in defendant's trial brief on balancing the equities and defendant's other briefs,
plaintiffs' application for injunction is denied. Some of the reasons to deny the application are
discussed here.
Standards for Issuing an Injunction. Even when a nuisance is established, a permanent
injunction is not automatic. In Story, our supreme court stated:
Petitioners take the position that the jury having found the facts constituting the
nuisance, they were entitled to the injunction abating the plant as a matter of right.
We do not agree. We think that there should have been a balancing of equities in
order to determine if an injunction should have been granted.
Storey v. Central Hide & Rendering Co., 226 S.W.2d 615, 618 (Tex. 1950). Rather, a permanent
injunction can only be issued when plaintiffs establish:
(a) The existence of a wrongful act;
(b) The threat of imminent harm;
(c) The existence of irreparable injury; and
(d) The absence of an adequate remedy at law.
GTE Mobilnet of S. Tex. Ltd. v. Pascouet, 61 S.W.3d 599, 620 (Tex. App.-Houston [14th Dist.]
2001, pet. denied). Thus, the trial court must weigh ''the respective conveniences and hardships
of the parties and balance the equities." Webb v. Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374,384
(Tex. App.-Dallas 2009, no pet.). If they are issued, injunctions must be narrowly drawn and
precise; injunctions cannot be so broad as to enjoin a defendant from activities which are a
lawful and proper exercise of rights. Holubec v. Brandenberger, Ill S.W.3d 32, 39-40 (Tex.
2003).
While the jury determines fact questions, the trial judge must balance the equities in the
role of chancellor to determine whether to issue an injunction. As one court stated:
8
1206
It is not within the jury's province to pass upon the issue of whether or not the
private nuisance which would result from the [proposed use of the defendant's
property] will be outweighed by the public welfare. This is not a fact issue, but
one to be determined by the chancellor in accordance with established equitable
principles.
Georg v. Animal Defense League, 231 S.W.2d 807, 811 (Tex. Civ. App.-San Antonio 1950,
writ refd n.r.e.). The balancing of the equities lies within the trial court's sound discretion. Lee
v. Bowles, 391 S.W.2d 923, 926 (Tex. Civ. App.-San Antonio 1965, no writ). In short, Texas
law places the responsibility on the trial court.
Finding of Nuisance was Verv Localized. As noted earlier, only some of the plaintiffs
prevailed at trial. Generally speaking, only those plaintiffs immediately adjacent to the project or
in close proximity won. All plaintiffs north of the Project lost. The Project was not deemed a
nuisance to any plaintiff more than approximately 200 feet from the Project.
While it's not possible to know precisely what the jury was thinking, even plaintiffs'
counsel at closing arguments conceded that this finding suggests that the jury rejected the traffic
and shadow concerns raised by plaintiffs. At the minimum, the jury's finding makes clear that
the Project is a nuisance to only a small band of plaintiffs and does not extend to the entire
community.
Difficulty in Enforcing an Injunction. Plaintiffs request an injunction precluding
defendant from constructing the Project as permitted by the City. Thus, the injunction would
preclude a mixed use 21 story building consisting of retail on the ground floor, a five story
parking garage, and 16 floors of apartments. This Project and only this Project was found to be a
nuisance to 20 homeowners. If defendant sought to construct a 20 story project, there would be
no finding that such a building would be a nuisance. A new trial would have to be conducted to
determine if such a building would be a nuisance. Similarly, suppose defendant desired to erect
9
1207
a mid-rise six story structure that spanned property line to property line and had more units than
the currently permitted Project? Would such a project be a nuisance? Such a mid-rise would
solve the height concerns of the neighborhood, but might have worse privacy and traffic
concerns.
Plaintiffs suggest that this Court should enjoin the Project as permitted and then, if
defendant tries to skirt the injunction by building a slightly smaller buildi_ng, conduct a contempt
hearing to see· if defendant is complying with the injunction. Unfortunately, plaintiffs'
suggestion is no solution. If defendant reduced the size of the building just slightly, defendant
would clearly not be violating plaintiffs' proposed injunction since defendant would not be
constructing the project as permitted.
In short, an order enjoining the construction of the Project as permitted would not resolve
this controversy. Rather, the Court would be faced with a potentially endless series of lawsuits
or contempt motions testing whether various tweaks and revisions of the Project would be a
nuisance or a violation of the injunction.
Some amicus briefs have suggested that the court should enter an injunction precluding
defendant from building anything more than 6 or 7 stories in height. Unfortunately, there's
absolutely no evidence from which this court can determine what height is appropriate and what
height is inappropriate. The jury (at plaintiffs' request) was simply asked whether the Project as
permitted was a nuisance. The jury was not asked and the plaintiffs did not request a finding of
what height or number of units would be permissible. As a result, any attempt to issue an
injunction restricting the building to a certain number of floors would b~ sheer guesswork. This
Court is faced with an all or nothing proposition-either completely enjoin the building as
permitted or not. Unfortunately, as previously noted, a complete ban doesn't solve the
10
1208
controversy. Defendant can comply with the injunction. by simply shaving one floor off of the
project.
Far from resolving this controversy, plaintiffs concede a permanent injunction would
result in more suits and motions, including possible contempt motions and new suits. The Texas
Supreme Court stated that "judges may hesitate to issue discretionary orders that require
extensive oversight." Schneider, supra, 147 S.W.3d at 287. "Difficulties in drafting or
enforcing an injunction may discourage the trial judge from considering the imposition of an
equitable remedy." /d. at 289.
In the end, this Project is a residential development in a residential neighborhood.
Plaintiffs' opposition is primarily scale-plaintiffs argue the project is simply too big. It is not
as if the court could enter an injunction ordering defendant not to build a certain type of business,
e.g., racetrack or hide tanning facility. Courts can and have entered injunctions in the past
against such facilities. This case is different. A two story residential development was on the
Property for decades. Maryland Manor was of no concern to the neighbors but a two story
structure too small for the developer. A 21 story residential development is believed by the
neighbors (and the jury) to be too big. However, this Court has zero evidence with which to find
what size is just right.
Harm to the Defendant.
The defendant has fought for seven years to construct this Project. Neighborhood
opposition slowed the City of Houston permitting process. Ultimately, after being faced with
litigation, the City of Houston approved the Project with certain agreed modifications in order to
help alleviate neighborhood concerns. During all of this time, defendant spent millions of dollars
planning and designing the project. Indeed, while the neighbors fought and organized against the
11
1209
Project, no suit was filed. Even after the City approved the developers contested application, no
suit was filed. More importantly, even after the City and the developers entered into a settlement
agreement to permit the project to go forward, no suit was filed against the Project for over a
year. Meanwhile, defendant continued to expend money and energy to go forward with the
Project. Suit was not filed until May of 2013 against the Project. The delay in filing suit while
defendant continued to spend money and, indeed, raze the Maryland Manor Apartments which
generated cash flow, cannot be ignored.
One of the factors that must be considered by this Court is balancing the equities. To be
sure, construction of the Project will cause some hardship and disruption to the plaintiffs.
Enjoining the Project, however, will cause considerable hardship to defendant. While the
defendant could sell the Property and recoup some of its losses, in no way could defendant come
out whole. Defendant has considerable sunk costs in design and engineering fees. This effort
and work cannot simply be picked up and moved to a new location. The injunction requested by
plaintiffs would cause considerable hardship on defendant.
Harm to the Community.
One of the factors that this Court must consider in determining whether to grant an
injunction is harm to the public or community. As stated by our supreme court, the law of
nuisance grew out of localized issues, such as a hog farm or tannery, "small-scale operations that
like most others in pre-industrial England had little economic impact on anyone other than the
parties." Schneider, supra at 287. Now, however,
[i]ndustries and nuisances often come in much larger packages, with effects on
the public, the economy, and the environment far beyond the neighborhood. A
court sitting in equity today must consider those effects by balancing the equities
before issuing any injunction. /d.
12
1210
If an injunction is granted, there is no question but that it will have a chilling effect on
other development in Houston. For better or worse, the City of Houston has repeatedly opted
against zoning. Houston's lack of zoning is often touted as part of the DNA of the city.
However, while there is not technically zoning, one witness testified that the City of
Houston vigorously enforces its ordinances and codes. Obtaining a building permit is by no
means a given. In this case, the defendant went through years of considerable effort to obtain
approval for the Project. Ten different applications were made to the City. One project
.alternative was approved, litigation filed, and ultimately the 21 story Project was approved by the
City.
If an injunction was issued, then a judge can become a one man zoning board with little
criteria. Two different courts could examine two similar projects and reach contrary
conclusions. Even after developers obtained a building permit, developers would have no idea
whether a proposed project would pass judicial scrutiny. Moreover, while building codes and
ordinances are quite detailed, the criteria of what constitutes a nuisance is considerably less
specific. Here, the definition of nuisance is simply whether a project, if built, would be abnormal
and out of place in its surroundings.
Currently, developers are faced with a lengthy permitting process where the rules are
defined. If developers are confronted with a second step-a possibility of an injunction-
developers might think twice about whether to proceed. This is particularly true since this
second step, litigation and resulting appeals, would take years to complete.
As Houston becomes more and more urbanized and denser, perhaps Houston should
reconsider whether zoning is appropriate for this City. That is not for this Court to decide.
13
1211
Rather, this Court must simply balance the equities. On balance, the Court concludes that an
injunction should not be issued.
Does this mean that an injunction can never be issued to stop a proposed project? Of
course not. But in weighing the equities in this case, the equities weigh toward no injunction.
Finally, the Project will provide benefits to the city as a whole. The Project will generate
millions in tax revenues and provide housing for the medical center, Rice, and other urban
destinations. While the Project might increase traffic along Bissonnet, it will contribute toward
reduction in urban sprawl and congestion on freeways feeding the city center.
City Approval.
Similarly, it must be remembered that the City of Houston approved this project and
extracted concessions from the defendant in the process. As part of the settlement of the federal
lawsuit, the city agreed to issue a permit for the project so long as defendant made certain design
changes, including (a) reducing the height of the building from 23 to 21 stories; (b) imposing
traffic, light and noise mitigation measures; and (c) green wall screening on the parking garage.
While this procedure was not the same as zoning, this Court cannot ignore the fact that the city
(a) approved the project; and (b) extracted concessions to help ameliorate many of the
neighborhood concerns.
Defendant followed all of the rules required of the City.
Other Projects Nearby.
Mid-rise buildings are sprouting up throughout the inner city. Indeed, two blocks from
the proposed Project is a six story residential development at the corner of Ashby and Sunset and
several four story residential developments are across the street on Sunset. Moreover, a six story
14
1212
medical office building is 2-3 blocks away on Sunset. Thus, this neighborhood is becoming
dense even without this Project.
Privacy Concerns Pre-dated the Project. One of plaintiffs ' concerns is that the Project,
if it went forward, would permit an invasion of privacy into the plaintiffs' homes and back yards.
This is a fact of life in urban settings. Any time a two story home is erected next door, the new
neighbors will have an opportunity to peer into your back yard. Indeed, plaintiffs were subjected
to such an invasion of privacy when Maryland Manor Apartments occupied the Property.
Maryland Manor was razed in May 2013. However, prior to demolition, defendant took pictures
from second story apartments
overlooking plaintiffs' property. 9
While plaintiffs testified that
they had no privacy concerns
with Maryland Manor, the
pictures introduced at trial
unquestionably show that
Maryland Manor residents could
look down into plaintiffs'
property. If anything, pnvacy
concerns from Maryland Manor
could have been worse than
potential privacy concerns from the Project. Maryland Manor was literally inches from the
property line, whereas the Project will be set back 10 feet. Maryland Manor had second story
9
Defendant Ex. 2.
15
1213
apartments overlooking plaintiffs' back yards, whereas the Project will have a parking garage
occupying the first five floors. Additionally, the Project's apartments will be located in a tower
set back even farther. The potential nuisance concerns from the Project are not enough to justify
an injunction stopping the Project.
Adequate Remedy at Law.
One of the factors to be considered in deciding whether to grant an injunction is whether
the plaintiffs have an adequate remedy at law, i.e., whether they can be compensated in
damages. 10 The jury has weighed in on this issue and awarded damages to the plaintiffs. The
jury determined that the prevailing plaintiffs' homes would be diminished in value by ranges of
11
3-15%. One of plaintiffs' principal arguments at trial was that the Project would cause
settlement and foundation damage to adjacent properties. Even if such foundation damage
occurred, this is precisely the type of injury for which courts routinely award damages. Plaintiffs
clearly have an adequate remedy at law.
Other Factors to be Considered.
There are a couple of other factors that need to be identified, although they are of lesser
importance.
A. Some Plaintiffs Chose to Buy Homes in the Neighborhood Despite the Possibility
of the Project being Built. Several plaintiffs bought their homes during the pendency of the
controversy from 2007 to the present. While the law is clear that this does not disqualify a
plaintiff from obtaining damages for a proposed nuisance, See, e.g., Galveston, H. & S.A. Ry.
Co. v. Miller, 93 S.W. 177, 179 (Tex. Civ. App. 1906, writ refd), it is a factor that cannot be
10
Although §65.001 of the Texas Civil Practice and Remedies Code appears to abolish the requirement of showing
irreparable injury, subsequent decisions hold that the irreparable injury requirement still exists. See Sonwalkar v. St.
Luke's Sugar Land Partnership, LLP, 374 S.W.3d 186 (fex. App.-Houston [1 51 Dist.] 2012, no pet.).
11
Defendant's Ex. 166.
16
1214
ignored in determining whether to enjoin the Project. Even in the face of this project, some
plaintiffs chose to move into the neighborhood.
B. He who seeks equity must do equity. An injunction is an equitable remedy. Courts
have long held that he who seeks equity must do equity. Truly v. Austin, 744 S.W.2d 934, 938
(Tex. 1988). While most of the plaintiffs' conduct has been perfectly proper, there is no question
but that many neighbors and some plaintiffs aggressively fought the project. Threats were made
against the developers. Petitions were circulated that threatened to picket the homes of investors,
appear at businesses and homes of contractors and service providers who work on the project,
confront tenants in the neighborhood and let them know they are not welcome, boycott and
demonstrate against any restaurant at the project as well as any other location of the same
restaurant. In short, "we will appear at the homes of the owners, investors, and chef of your
restaurant tenant and demonstrate our opposition to their presence in our neighborhood." 12
Conclusion on Injunction.
For the reasons stated here, and for the reasons stated in Defendant's briefing, the
application for injunction is denied.
Vll. Damages
If an injunction is denied, and if the plaintiffs do indeed have an adequate remedy at law,
then the final question for the court is what amount of damages to award. The jury was asked to
determine what sum of money, if paid now in cash, would fairly and reasonably compensate
plaintiffs for their damages in two areas: (a) loss of market value; and (b) loss of use and
enjoyment of their property.
12
Defendant Ex. 36.
17
1215
Defendant argues that the jury findings on both elements of damages should be
disregarded because, among other reasons, the damages are not yet ripe and are speculative. The
Court agrees in part and disagrees in part. Because the Project has not yet been constructed, the
Court agrees that damages for loss of use and enjoyment should not be awarded at this time.
Determination ofthe extent to which the Project may interfere with plaintiffs' use and enjoyment
of their property is speculative until the project is constructed. See Allen v. City of Texas City,
775 S.W.2d 863 (Tex. App.-Houston [1st Dist.] 1989, writ denied).
With respect to lost market value damages, however, the Court agrees with Plaintiffs that
these damages have already occurred. Evidence was presented at trial that plaintiffs have
already incurred lost market value damages as a result of the planned Project.
VIII. Conclusion
This Court finds and orders as follows:
1. Defendant's Motion for Entry of Judgment with respect to the ten plaintiffs who
lost at trial is granted;
2. Defendant's Motion for Judgment Notwithstanding the Verdict is Denied;
3. Defendant's Motion to Disregard Jury Findings is Granted with respect to loss of
use and enjoyment damages and denied with respect to loss of market value
damages;
4. Plaintiffs' Application for Permanent Injunction is denied.
5. The parties are to prepare a judgment co
Signed May 1, 2014.
18
1216
1. Luong Nguyen, 1750 Wroxton Ct.
2. Lam Nguyen & Katherine Hoang, 1801 Bissonnet
3. Jamie Flatt, 1740 Wroxton Ct.
4. Penelope ~ughhead, 1736 Wroxton Ct.
5. Donald Verplancken, 1734 Wroxton Ct.
6. Norman & Suannah Rund, 1726 Wroxton Ct.
7. Achim & Diana Bell, 5300 Southharnpton Estates
8. Jeanne Meis, 5302 Southharnpton Estates
9. Mary Van Dyke, 5304 Southharnpton Estates
10. Ralph & Leslie Miller, 5306 Southharnpton Estates
11. Yin & Surong Zhang, 5310 Southharnpton Estates
12. Martha Gariepy, 5308 Southhampton Estates
13. Stephen Roberts, 1804 Wroxton Rd.
14. Suzanne Powell, 5305 Southharnpton Estates
15. Michelle Jennings & Dr. Michael Tetzlaff, 5309 Southharnpton Estates
16. James & Allison Clifton, 1714 Wroxton Ct.
17. Kimberley Bell, 1729 Wroxton Ct.
18. Richard & Mary Baraniuk, 1731 Wroxton Ct.
19. Dinze1 Graves, 5219 Dunlavy
20. Kenneth Reusser & Xanthi Couroucli, 1801 Wroxton Rd.
21. Sarah Morian & Michael Clark, 1810 Bissonnet
22. Marc Favre-Massartic, 1812 Bissonnet
23. Raja Gupta, 1808 Wroxton Rd.
24. Earle Martin, 1811 Wroxton Rd.
25. Laura Lee & Dico Hassid, 1731 South Blvd.
26. Peter & Adriana Oliver, 5219 Woodhead
27. Ed Follis, 1823 Bissonnet
28. Frank & Jeanette Stokes, 1826 Wroxton Rd.
29. Steven Lin & Dr. Yi-Wen Michelle Pu, 1710 South Blvd.
30. Howard & Phyllis Epps, 1936 Wroxton Rd.
19
1217
7/10/2014 4:52:57 PM
Chris Daniel - District Clerk
Harris County
Envelope No: 1789424
By: COOPER, LISA L
NO. 2013-26155
PENELOPE LOUGHHEAD, HOWARD §
EPPS, PHYLLIS GRIFFIN EPPS, EARLE §
MARTIN, JEANNE MEIS, STEPHEN § IN THE DISTRICT COURT OF
GLYNN ROBERTS, RICHARD G. §
BARANIUK, MARY SARAH BARANIUK, §
JAMES D. CLIFTON, ALLISON KELLY §
CLIFTON, JAMIE FLATT, MARTHA §
GARIEPY, RALPH KEN MILLER, JR., §
LESLIE M. MILLER, PETER STUART §
OLIVER, ADRIANA BOTTO OLIVER, §
NORMAN A. RUND, SUANNAH L. RUND, §
MARY THERESA VAN DYKE, ACHIM § HARRIS COUNTY, TEXAS
BELL, DIANA BELL, KIMBERLEY BELL, §
MARC M. FA VRE-MASSARTIC, ED B. §
FOLLIS, LAM NGUYEN, KATHERINE §
HOANG, LUONG NGUYEN, SUZANNE §
POWELL, KENNETH D. REUSSER, §
XANTHI I. COUROUCLI, FRANK T. §
STOKES, JEANETTE P. STOKES, §
MICHAEL H. CLARK, DINZEL R. § 157th JUDICIAL DISTRICT
GRA YES, MICHELLE JENNINGS, §
STEVEN K. LIN, SARAH C. MORlAN, §
YI-WEN MICHELLE PU, MICHAEL §
TETZLAFF, SURONG ZHANG, YIN §
ZHANG, RAJA GUPTA, DICO HASSID, §
LAURA R. LEE, DONALD VERPLANCKEN §
§
Plaintiffs, § Jury Demanded
§
v. §
§
1717 BISSONNET, LLC. §
§
Defendant §
FINAL JUDGMENT
On the 19th day of November 2013. the above-entitled and numbered cause was called for
trial. The parties announced ready through their attorneys of record. The Court empaneled a JUry of
twelve, and the case proceeded to trial. At the conclusion of the evidence, the jury reached a
unanimous verdict on December 17, 2013. The jury found, as to 29 plaintiffs or 20 households. that
1271
the proposed high rise development at 1717 Bissonnet will constitute a nuisance if built. The jury
awarded damages to those plaintiffs. A true and correct copy of the signed verdict form is attached
as Exhibit I to this Final Judgment.
Following the verdict, the Defendant filed a motion for entry of judgment, for judgment
NOV and to disregard jury findings. The Plaintiffs filed an application for permanent injunction. On
May I, 2014, this Court signed a memorandum opinion and order ruling on such motions and
directed the parties to prepare a final judgment consistent with the memorandum opinion.
Accordingly, It is
ORDERED, ADJUDGED, and FINALLY DECREED that each of the following Plaintiffs
(hereinafter collectively. the '·Prevailing Plaintiffs") have and recover from and against the
Defendant the sum set forth beside the name of each such Plaintiff or Plainti tTs, as found by the jury
for loss of market value to their properties:
I. Luong Nguyen- $88,050.00.
2. Lam Nguyen and Katherine Hoang, jointly- $25,932.25.
3. Jamie Flatt- $84.888.00.
4. Penelope Loughhead- $90,288.00.
5 Donald Verplancken- $72.252.00.
6 Norman and Suannah Rund, jointly- $96,630.00
7. Achim and Diana Bell, jointly- $80,471.04.
8. Jeanne Meis- $79,891.20.
9. Mary Van Dyke- $88,680 60.
I 0. Ralph and Leslie Miller, jointly- $94,528.80.
II. Yin and Surong Zhang, jointly- $102,483.00.
1272
12. Martha Gariepy- $88,065.00.
13 Stephen Roberts- $4 7,693 50.
14. Suzanne Powell- $20,191.68.
15. Michelle Jennings and Michael Tetzlaff, jointly- $17,613.00.
16. James and Allison Clifton, jointly- $28,850.30
17. Kimberley Bell- $24,097.50.
18. Richard and Mary Baraniuk. jointly- $21,596.04.
19. Kenneth Reusser and Xanthi Couroucli, jointly- $33,636.69.
20. Earle Martin- $36,923.58.
This judgment is without prejudice to the Prevailing Plaintiffs' right to seek and recover
damages for the loss of use and enjoyment of their properties resulting from the nuisance when such
damages become ripe for judicial determination. It is further
ORDERED. ADJUDGED, and FINALLY DECREED that each of the twenty damage
awards set forth above shall bear interest at the rate of 5%. compounded annually, until such
judgment has been satisfied. It is further
ORDERED, ADJUDGED, and FINALLY DECREED that the following Plaintiffs
(hereinafter collectively, the ·'Non-Prevailing Plaintiffs") shall TAKE NOTHING by this action
against the Defendant: Dmzel Graves, Sarah Morian & Michael Clark, Marc Favre-Massartic, Raja
Gupta, Laura Lee & Dico Hassid, Peter & Adnana Oliver, Ed Follis, Frank & Jeanette Stokes.
Steven Lin &Yi-Wen Michelle Pu, and Howard & Phyllis Epps. It is further
ORDERED, ADJUDGED, and FINALLY DECREED that all costs of court are taxed
against the Defendant, except the costs of the depositions of Michael Clark, Marc Favre-Massartic,
Raja Gupta, Laura Lee, Adriana Oliver, Ed Follis, Frank Stokes, Steven Lin, and Phyllis Epps,
1273
which are taxed against the Non-Prevailing Plaintiffs. It is further
ORDERED, ADJUDGED, and FINALLY DECREED that Plaintiffs' application for
permanent injunction is DENIED.
All writs and processes for the enforcement and collection of the sums awarded by this
Judgment or the costs of court may issue as necessary.
All relief not expressly granted herein is demed.
Signed this _....:..../_8_-A__ day of-=__/
___u_(_,_y'_ _ _ , 2014
I
APPROVED AS TO FORM BUT RESERVING ALL COMPLAINTS AS TO SUBSTANCE:
By: /s/ Ramon G Vtada Iff
Ramon G. Viada Ill
Texas Bar No. 20559350
VIADA & STRAYER
17 Swallow Tail Court
The Woodlands, Texas 77381
(281) 419-6338
(281) 661-8887 (Fax)
COUNSEL FOR DEFENDANT
1274
APPROVED AS TO FORM BUT RESERVING ALL COMPLAINTS AS TO SUBSTANCE:
By: /s/ Jean C Fnzze/1
Jean C. Frizzell
Texas Bar No. 07484650
REYNOLDS, FRIZZELL, BLACK, DOYLE,
ALLEN AND OLDHAM LLP
II 00 Louisiana Street, 3500
Houston, Texas 77002
(713) 485-7200
(713) 485-7250 (Fax)
COUNSEL FOR PLAINTIFFS
4848-4 I I 0-8507, v 2
1275
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1
1 REPORTER'S RECORD
2 TRIAL COURT CAUSE NO. 2013-26155
3 COURT OF APPEALS NO. 14-14-00589-CV
4 VOLUME 14 OF 26 VOLUMES
5
6 PENELOPE LOUGHHEAD, ET AL.) IN THE DISTRICT COURT
)
7 vs. ) HARRIS COUNTY, TEXAS
)
8 1717 BISSONNET, LLC ) 157TH JUDICIAL DISTRICT
9
10
11 _____________________________________________
12 TRIAL ON ITS MERITS
13 DECEMBER 12, 2013
14 _____________________________________________
15
16
17
18 On the 19th day of November, 2013, the
19 following proceedings came on to be held in the
20 above-titled and numbered cause before the Honorable
21 Randy Wilson, Judge Presiding, held in Houston, Harris
22 County, Texas.
23
24 Proceedings reported by computerized stenotype
25 machine.
Sheri Ullrich, Official Court Reporter, 713-368-6242
14
1 in despair because of the sheer virtual impossibility of
2 formulating it.
3 And as a result, I am overruling that
4 objection.
5 MS. SOUTHWICK: Thank you, Your Honor.
6 MR. VIADA: The defendants' fifth
7 objection to the charge is to note that it omits an
8 essential element of the plaintiffs' claim for private
9 nuisance; that is, in connection with Question No. 1, the
10 charge fails to instruct the jury that to find for each
11 plaintiff on a claim for private nuisance, the jury must
12 find that each such plaintiff has proved that he or she
13 owns an interest in the land on which the nuisance has or
14 will be felt by the plaintiff. That element was in the
15 former proposed charge, but it's no longer in this one;
16 and so we object to the omission of that element.
17 THE COURT: Give me that one again. Give
18 me that one again, please. I just -- I didn't follow it.
19 MR. VIADA: Yes. There is no instruction
20 that the jury must find that each plaintiff owns an
21 interest in the land that they claim has been damaged by
22 the prospective nuisance or will be damaged by the
23 prospective nuisance.
24 THE COURT: Is that even an issue?
25 MR. VIADA: Well --
Sheri Ullrich, Official Court Reporter, 713-368-6242
15
1 THE COURT: I mean, is there any evidence
2 to the contrary?
3 MR. VIADA: Well, it's not our burden to
4 put proof to the contrary. It's the plaintiffs' burden
5 to put affirmative proof establishing that basic element
6 of standing.
7 THE COURT: Understood. And I'm not
8 suggesting it was your burden to establish proof to the
9 contrary, but I didn't think that was a contested issue,
10 frankly. But overruled.
11 MR. VIADA: The defendant objects to the
12 Court's charge because it fails to instruct the jury on
13 the essential elements of the claim for the proposed
14 project's anticipated impact on traffic conditions, such
15 as road congestion and increased traffic loads on
16 community streets which are roads that have never been
17 contested are owned by the plaintiffs. In particular,
18 the charge doesn't ask any predicate findings for
19 standing to bring a public nuisance claim such as whether
20 each of the plaintiffs has or with reasonable certainty
21 will suffer harm of a kind materially different from that
22 suffered by other members of the public exercising the
23 right common to the general public that is the subject of
24 the feared interference.
25 THE COURT: Overruled.
Sheri Ullrich, Official Court Reporter, 713-368-6242
16
1 MR. VIADA: The defendant objects to
2 Question No. 2 because it would allow the jury to give
3 the plaintiffs a double recovery by awarding loss of
4 market value and lost use and enjoyment. Market value
5 damages for permanent injury to real estate comprehends
6 and includes loss of use and enjoyment of the land.
7 THE COURT: Isn't that solved, even if it
8 is a problem, by the instruction of don't award a sum of
9 money on one element if you have otherwise under another
10 element awarded a sum of money for the same loss?
11 MR. VIADA: Well, then we are not in a
12 position of knowing whether the jury followed that
13 instruction.
14 THE COURT: Overruled.
15 Let me ask a question. I hate to
16 interrupt, but I don't want to forget it.
17 Mr. Doyle, this might more appropriately
18 be a question addressed to you.
19 We have had a fair number of attendees in
20 the courtroom over the past several weeks. I suspect
21 there will be even more for closing arguments.
22 MR. DOYLE: That would be my guess, Your
23 Honor. I don't have a tally, but we have let them know
24 when it is.
25 THE COURT: Should I reserve and conduct
Sheri Ullrich, Official Court Reporter, 713-368-6242
17
1 closing arguments on 17? I guess a better way of putting
2 it is is this courtroom physically large enough to
3 accommodate?
4 MR. DOYLE: It may or may not be, I mean,
5 but what I can do is try to find out.
6 THE COURT: Well, here is what I have
7 done. I've gone ahead and reserved 17 and we'll play it
8 by ear.
9 MR. DOYLE: Sure.
10 THE COURT: I don't want to exclude people
11 just by virtue of seating capacity. So for now, we'll
12 hold it here. And if it ends up that it may end up
13 being -- if turns out that it may end up being a problem,
14 then we can move up.
15 MR. DOYLE: And like I said, we have let
16 people know when it is, but I don't know who --
17 AUDIENCE MEMBER: Your Honor, may I say
18 something to Mr. Doyle?
19 MR. DOYLE: Your Honor, I am told that
20 lots of people have expressed interest in attending and
21 there was concerns among them about whether there would
22 be room or not, so perhaps a larger room would make
23 sense.
24 THE COURT: I have reserved 17.
25 MR. DOYLE: Thank you, Your Honor.
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1 THE COURT: Go ahead.
2 MR. VIADA: Thank you, Your Honor.
3 Defendant objects to one of the
4 instructions in Question No. 1; that is, quote, "A
5 nuisance, if it exists, is not excused by the fact that
6 it arises from an operation that is in itself lawful or
7 useful," unquote. The defendant objects that this is a
8 comment on the weight of the evidence. The fact that the
9 the property is unzoned may well not be an excuse, but it
10 is certainly something that the jury can consider as to
11 whether or not the project is abnormal or out of place in
12 the location at which it is proposed.
13 And so to suggest to the jury that the
14 unzoned nature of the property has no relevance to
15 whether it is a nuisance we believe is an unfair comment
16 on the weight of the evidence with respect to the fact
17 that the property is unzoned. We would request that the
18 Court remove that instruction from the charge.
19 THE COURT: Overruled.
20 MR. VIADA: I haven't written this
21 objection down; but since the Court has now changed
22 Question No. 1 to phrase the question in the future
23 condition, Question No. 2 which relates to damages talks
24 about damages that have been caused by the nuisance; that
25 is, caused in the present tense by a nuisance. And I
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1 would -- again, I think that -- and I've made this point
2 in the earlier objections about the preliminary charge,
3 but I just think there is a fundamental flaw in the whole
4 idea that a prospective nuisance can be a basis for
5 damages since damages need to have occurred in the past
6 to be recovered. They can't -- it can't be something
7 that will occur in the future and then be recovered on
8 the basis of a prospective nuisance.
9 That's the nature of my objection to
10 Question No. 2. It's tied to an existing nuisance and
11 not a prospective one. And I don't have a suggested cure
12 for it, because I don't believe it can be cured.
13 THE COURT: Well, what if I changed
14 Question No. 2 to read: What sum of money, if paid now
15 in cash, would fairly and reasonably compensate
16 plaintiffs for their damages, if any, that will be
17 proximately caused by the nuisance?
18 MR. VIADA: Well, again, that does make a
19 very important assumption that the nuisance would be
20 built in the future. I mean, consider it this way,
21 Judge --
22 THE COURT: Of course, Question 2 is
23 predicated on a yes finding to Question 1, which has the
24 "if built" language now.
25 MR. VIADA: But it doesn't -- it's not
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1 predicated on a finding that it actually will be built.
2 I mean, here is the problem in a practical
3 sense. If you were to award mega millions in damages, it
4 may be that the developers will think, "Well, we're not
5 going to build it like this. We don't want to incur
6 those kinds of damages."
7 So let's assume they don't build it.
8 Would it be this Court's judgment that even if they
9 decide not to build it, in light of the judgment, that
10 the developers would still have to pay huge damages to
11 compensate the plaintiffs for something that never gets
12 built?
13 I think that's one of the really important
14 flaws in the whole approach to giving an award of damages
15 on the basis of something.
16 THE COURT: Mr. Doyle, what is the answer
17 to that question? That is a question that has puzzled me
18 in the past. What if they decide, no, never mind?
19 MR. DOYLE: Well, as a practical matter, I
20 think they could then come in and suggest that the
21 damages should be vacated. And I'm sure this will be
22 appealed and whatnot.
23 I mean, the evidence of the testimony we
24 have had is they're going to build this and this is
25 permitted and they are ready to go. There has been no
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21
1 suggestion that they are not going to build this. To me,
2 that would be -- is a hypothetical issue for down the
3 road if they completely change course.
4 MS. SOUTHWICK: May I weigh in, Your
5 Honor?
6 THE COURT: Please, because I am concerned
7 that suppose they say, "No, never mind," after plenary
8 jurisdiction has expired. I have to confess. It is a
9 question that has, as I said, puzzled me.
10 MR. VIADA: It gets to the point of being
11 a ripeness question, Your Honor.
12 THE COURT: That's a way of putting it.
13 MS. SOUTHWICK: It appears to me, Your
14 Honor, that this jury needs to be asked this question.
15 And whether it becomes ultimately a part of the Court's
16 judgment is a matter for later consideration, at least in
17 part. In order for the Court to determine whether to
18 issue an injunction, it seems to me the Court needs to
19 know what the jury believes the measure of damages is.
20 THE COURT: In other words, it may or may
21 not be appropriate for an actual judgment award of
22 monetary damages, but it might be appropriate for the
23 determination of whether to issue injunctive relief.
24 MS. SOUTHWICK: That's correct, Your
25 Honor. We are not conceding at the moment that it would
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1 not be appropriate for the entry of a judgment, but we do
2 believe that that's --
3 MR. DOYLE: Regardless of the outcome,
4 that's, I think, an argument we can have if and when we
5 need to at that time.
6 MS. SOUTHWICK: Right.
7 MR. DOYLE: But it will be relevant
8 potentially in the interim; and as Ms. Southwick said,
9 appropriate for this jury to be asked.
10 MR. VIADA: And my objection to that is it
11 is simply asking the jury for an advisory opinion on a
12 matter that is, at this point, pretty obviously not a
13 ripe issue for decision because there has been no damage
14 experienced.
15 MS. SOUTHWICK: Although as I understand
16 the evidence, Your Honor, there is testimony that damage
17 has been experienced.
18 THE COURT: Well, there is evidence of
19 damages that have been experienced, albeit contested; but
20 there has been evidence of damages that have been
21 experienced to date on the first element, not on the
22 second.
23 MS. SOUTHWICK: Correct, Your Honor.
24 THE COURT: I do have some considerable
25 reservations about this second element of damages --
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1 i.e., loss of use and enjoyment -- since it is
2 hypothetical; it has not occurred; we don't know what the
3 various problems are or will be.
4 But out of an abundance of caution, I am
5 going to submit this question, overrule the objection and
6 reserve for another day what use, if any, to make of
7 those answers if the jury reaches that question on
8 another day.
9 MR. VIADA: May I approach, Your Honor? I
10 have that set of proposed instructions.
11 THE COURT: Let me ask Ms. Southwick this:
12 There has been some discussion in the past that
13 plaintiffs concede that aesthetics alone is not a
14 nuisance.
15 MS. SOUTHWICK: I believe that's correct,
16 Your Honor. As I understand it, the testimony was also
17 that the individual plaintiffs were not concerned with
18 the actual look of the building, although I believe that
19 the proposed instruction that defendants have offered
20 which has the phrase "including the mere fact that it is
21 big," we would dispute that that's just a question of
22 aesthetics.
23 THE COURT: Yeah. I'm not proposing to
24 insert the defendants' proposed instruction No. 2, but I
25 have puzzled whether it might be appropriate to include
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24
1 an instruction that says, "Mere aesthetics or the look of
2 a structure is not a nuisance."
3 What's your reaction to that?
4 MS. SOUTHWICK: Well, I don't believe that
5 it was raised by the evidence. As I understand the
6 testimony and the evidence, there was no discussion of
7 the actual look of the building as an issue that would
8 support our claim for nuisance.
9 MR. VIADA: Well, I understand that
10 everybody that came in didn't say, "Oh, yeah, we don't
11 have anything to say about that," but there was testimony
12 to the fact that it's a monstrosity; it's so big, it
13 dominates the landscape; it's a monstrosity, things of
14 that nature. And so there was testimony that people do
15 have a problem with it in that it is --
16 THE COURT: Yeah, but that's actually the
17 problem I have got with the proposed aesthetics
18 instruction. And that's frankly the reason why -- the
19 reason why I have not included it in my charge is I'm
20 having a difficult time separating size with aesthetics.
21 And I'm afraid if I include an instruction on aesthetics,
22 it might be construed to include size, which I think
23 might well be within the ambit of nuisance, which is
24 defined as abnormal and out of place; and that might
25 include size. So that's my concern.
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25
1 MR. VIADA: Well, and I would take issue
2 with the idea that a nuisance is something that is
3 abnormal and out of place. It's something that
4 substantially interferes with use and condition. The
5 abnormal and out of place is simply a culpability part of
6 the nuisance equation.
7 I don't believe that the mere fact that a
8 large building in an unzoned area is a nuisance simply
9 because it's a large building. And we take issue with
10 the various impacts that the plaintiffs claim are
11 nuisance-type impacts.
12 But unless nuisance law becomes a form of
13 zoning law, then I think that it is inappropriate for the
14 jury to assume that simply because, you know, this
15 neighborhood has a lot of residences in it, that you
16 can't build a building there.
17 It may well be that -- I mean, we know
18 that right up the street there is a building, but there
19 is -- hypothetically, you could create a building that
20 would not have any of these impacts but it would still be
21 huge. You know, you could have a building without
22 windows, for example. You could have a building that
23 is -- you know, that's 30 stories but it only has one
24 residence on each floor so you have got 30 residents in
25 this huge building. You could have it to where the
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1 garage is completely boxed in and it has no lights. You
2 could have a foundation designed so that it doesn't cause
3 any cracks.
4 My point is that the bigness, the size --
5 the mere size of the building is not by itself a nuisance
6 impact unless you adopt the idea that simply because
7 something is abnormal and out of place in one
8 neighborhood, that it can't be built there or that it is
9 a nuisance because it's there.
10 And that to me is tantamount to saying
11 that we can use the common law of nuisance to spot zone
12 an acre of property and say, "You can't build something
13 that's out of character."
14 That was a lot of plaintiffs' point, that
15 the building is out of character for the neighborhood.
16 We don't like it because it's big.
17 And that's the point I'm making with that
18 instruction, Your Honor. That's instruction No. 2. And
19 that's my objection and my request is that the Court
20 submit instruction No. 2.
21 THE COURT: Understood. I'm refusing the
22 defendants' proposed Instructions 1 through 7 and signing
23 my refusal at this time.
24 Anything else?
25 MR. VIADA: Let's see. I'm not sure that
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27
1 on the first -- on the ones other than 2, that I have
2 protected the record by at least making the objection and
3 making the request. I understand the Court's ruling in
4 advance.
5 THE COURT: Go ahead.
6 MR. VIADA: All right. Question No. 1
7 asking the jury to disregard diminution in market value
8 as a form of nuisance as opposed to form of damages, so
9 we would request instruction No. 1 to be submitted.
10 THE COURT: It's refused.
11 MR. VIADA: Okay. No. 3 requests -- we
12 request that defendants' proposed instruction No. 3 be
13 submitted, because the phrase "abnormal or out of place"
14 standing alone is an incorrect standard of law. The
15 concept should include the instruction that the condition
16 is abnormal or out of place in the sense that it creates
17 inherent unreasonable danger.
18 THE COURT: Refused.
19 MR. VIADA: The defendant pled that coming
20 to the nuisance is a problem for some of the plaintiffs
21 in the sense that they bought properties with knowledge
22 or instructive knowledge that this project was going to
23 be built. And the jury should be instructed that it can
24 consider that as a factor in determining whether the
25 project creates a substantial interference with the use
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1 of their property. So we would request that No. 4 be
2 submitted to the jury.
3 THE COURT: I'm refusing that instruction,
4 but there will be more discussion on the recently
5 acquiring plaintiffs, I suspect, at another day.
6 MS. SOUTHWICK: Thank you, Your Honor.
7 MR. VIADA: Proposed jury instruction
8 No. 5 is requested because the definition of project is
9 not limited by what the city of Houston has approved the
10 developers to build.
11 The current definition allows the jury to
12 speculate whether discussions among the developers and
13 emails introduced into evidence reflects what is
14 currently proposed, despite the absence of any city
15 approval for some of those suggestions. It also allows
16 the jury to speculate about whether the proposed building
17 is something other than what the city has approved,
18 either in permit approvals or in the settlement agreement
19 between the defendant and the city.
20 It also goes to the point that I made
21 earlier that one of the elements of a claim to enjoin a
22 prospective nuisance has to be that the project is
23 imminent; and without there being any constraint on what
24 the proposed project is, it's impossible to tell from the
25 jury's finding whether the proposal that the jury thinks
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1 is the proposal is one that's even imminent or could be
2 imminent, because it doesn't have city approval.
3 So I would request on jury instruction
4 No. 5 that the Court add the phrase "and which the city
5 of Houston has approved" to the end of the sentence. And
6 I have submitted for the Court to consider proposed
7 instruction No. 5 and request that the Court include that
8 in the current definition in the charge.
9 THE COURT: Refused.
10 MR. VIADA: The defendant has objected to
11 the charge as omitting predicate findings for the
12 issuance of a permanent injunction. Out of an abundance
13 of caution, I have tendered the clear and convincing
14 evidence standard as applicable to the showing of a
15 reasonably certain future harm and tender this jury
16 instruction No. 6 as a correct statement of the standard
17 and request that the Court submit that in connection with
18 a jury question that would ask whether or not the future
19 nuisance is imminent and reasonably certain.
20 THE COURT: Refused.
21 MR. VIADA: And finally, the defendant
22 objects to the charge in that the issue of lighting was
23 never tried -- or I'm sorry, that the issue of lighting
24 was tried over a lack of pleadings objection by Mr. Cook.
25 And because it's the defendants' position that the
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1 pleadings failed to allege that lighting from the
2 proposed garage is an anticipatory nuisance, the
3 defendants request that the Court submit the jury
4 instruction No. 7 that removes lighting as a potential
5 basis for a finding of nuisance.
6 THE COURT: Refused.
7 MR. VIADA: Okay. That concludes the
8 defendants' objections and proposed additions to the
9 charge.
10 THE COURT: Anything else from the
11 plaintiffs?
12 MS. SOUTHWICK: Nothing further, Your
13 Honor.
14 THE COURT: Where are you guys on
15 scheduling the geotech depositions?
16 MR. COOK: We are doing Mr. Ellman by --
17 we're doing Mr. Ellman by video at 8:00 or 8:30.
18 MR. DOYLE: 8:00 o'clock tomorrow morning?
19 MR. COOK: Yes.
20 MR. DOYLE: And we're doing Mr. Vogt this
21 afternoon.
22 One issue, if I can raise an issue we've
23 got, just to keep you updated on how the things are
24 progressing. When we were here yesterday before we moved
25 the schedule, my understanding was Mr. Vogt was flying in
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