Clay Jeansonne and Donna Jeansonne v. T-Mobile West Corporation ( 2014 )

Opinion issued September 4, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00069-CV
———————————
CLAY JEANSONNE AND DONNA JEANSONNE, Appellants
V.
T-MOBILE WEST CORPORATION, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2011-36355
MEMORANDUM OPINION
In this case, homeowners sued a wireless communications company after the
company built a cell phone tower on property adjacent to the homeowners’
subdivision. The trial court granted summary judgment in favor of the wireless
communications company on the homeowners’ breach of restrictive covenants and
nuisance claims, and this appeal followed. We affirm.
BACKGROUND
LOE Conveys Property to CFISD with Restrictive Covenants
Lakes of Eldridge, Ltd. [“LOE”] owned several hundred acres of land in
Harris County and, on November 2, 1995, it conveyed 9.49 acres to Cy Fair
Independent School District [“CFISD”]. The legal description of the tract is as
follows:
TRACT 1-9.4929 acres, more or less, situated in the August Thonig
Survey, Abstract No. 1037, Harris County, Texas and being more
particularly described in Exhibit “A” which is attached hereto and
incorporated herein for all purposes.
[hereinafter, “the Cy-Fair Property”]. The Deed transferring the property to CFISD
also incorporated “[t]he Lakes on Eldridge, Ltd. Protective Covenants recorded
under Clerk’s File No. R658404 of the Real Property Records of Harris County,
Texas,” the preamble of which provides:
That LAKES ON ELDRIDGE, LTD., a Texas limited partnership,
desiring, as the owner of the Cy-Fair Property, to adopt a plan for the
orderly development of the Cy-Fair Property, does hereby impose
upon the Cy-Fair Property the following covenants, restrictions,
easements and liens . . . which shall run with the land and be binding
upon any Owner, Lessee, tenant or mortgagee of any land or building
in the Cy-Fair Property . . . .
The restrictive covenants provide that “[t]he Cy-Fair Property shall be used for an
elementary school” and that “[n]o alternative use will be permitted, without the
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prior written approval of Lakes on Eldridge or as set out herein in Article VI.”
Also, the restrictions provide that
[a]ll pipes, conduits, cable, line or other facilities for water, gas,
sewage, stream, electricity, telephone, television, or any other energy
or service serving any Parcel from any main trunk line or easement
(collectively, “Utilities”) shall be installed and maintained below
ground, unless otherwise approved by Lakes on Eldridge.
Regarding enforcement of the covenants, the document provides:
These Protective Covenants shall run with and bind the land within
the Cy-Fair Property, and (except where expressly provided
otherwise) shall inure to the benefit of and be enforceable by Lakes on
Eldridge or an Owner or Lessee of any land now or hereafter made
subject to these Protective Covenants. No tenant or mortgagee (while
a mortgagee) or other person or entity shall have any right to enforce
these Protective Covenants. The failure of any party to take action
upon any breach or default of these Protective Covenants shall not be
deemed a waiver of the right to take enforcement action upon any
subsequent breach or default.
After acquiring the Cy-Fair Property, CFISD built Kirk Elementary School at that
location.
The Jeansonnes Live in an Adjacent Neighborhood
With the remainder of its property, LOE created the Lakes on Eldridge
Subdivision, which does not include the Cy-Fair Property. The subdivision is
subject to its own “Declaration of Covenants, Conditions, & Restrictions,” which
are filed at Harris County Clerk’s File No. R227788. These restrictions require
that the sole permitted use of the properties sold therein is for “single-family
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residential dwelling purposes only . . . .” The Cy-Fair Property is not covered by
these restrictions.
LOE sold a lot in Lakes on Eldridge Subdivision to Village Builders, who
sold a completed residential home to Clay and Donna Jeansonne on March 3, 1998.
The Jeansonnes’ backyard is across a residential street from a parking lot located
near the rear of the Cy-Fair Property.
CFISD Leases a Portion of the Cy-Fair Property to T-Mobile for Construction
of a Cell Phone Tower
In March 2010, CFISD entered into a lease agreement with T-Mobile West
Corporation [“T-Mobile”] that permitted T-Mobile to build a concealed
telecommunications tower on the Cy-Fair Property, which T-Mobile completed
after a 7-10 day construction period in March 2010. The cell phone tower is
located near some of the school’s buildings, and is at least 150 feet from the rear of
the Jeansonnes’ property. Between their back fence and the cell tower is
Summerland Ridge Lane, a sidewalk, some trees and bushes, a fence, and a
parking lot.
The Jeansonnes Sue T-Mobile and the Trial Court Grants Summary
Judgments for T-Mobile
On June 17, 2011, the Jeansonnes sued T-Mobile, alleging (1) that T-Mobile
breached the applicable restrictive covenants, and (2) that the structure built on
CFISD’s land was a private nuisance. T-Mobile filed a traditional motion for
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summary judgment on the Jeansonnes’ breach of restrictive covenants claim
asserting that the Jeansonnes had no standing to raise such a claim. On January 13,
2013, the trial court granted the motion and dismissed the Jeansonnes’ claims for
breach of restrictive covenant. T-Mobile then filed a traditional motion for
summary judgment on the Jeansonnes’ nuisance claims, which were based on
aesthetics and radio-frequency emissions. The trial court granted summary
judgments as to the nuisance claims based on radio-frequency emissions, but
denied summary judgment as to the aesthetics nuisance claim. After further
depositions to explore the possible bases for the Jeansonnes’ nuisance claim, T-
Mobile moved for traditional and no-evidence summary judgment, contending that
the only “nuisance” asserted by the Jeansonnes was aesthetic, which, standing
alone, is not actionable. The trial court agreed, granting T-Mobile’s traditional and
no-evidence motions for summary judgment and entering a final judgment.
This appeal followed.
PROPRIETY OF SUMMARY JUDGMENTS
In two issues on appeal, the Jeansonnes contend the trial court erred in
granting summary judgment on its breach of restrictive covenant and nuisance
claims.
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Standard of Review
We review a trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The party moving for
summary judgment bears the burden of proof. Roskey v. Tex. Health Facilities
Comm’n, 639 S.W.2d 302, 303 (Tex. 1982). Though these burdens vary for
traditional and no-evidence motions, the summary judgment motions here were a
traditional and a hybrid motion, to which both parties attached and referred to
summary judgment evidence; therefore, the differing burdens are immaterial and
the ultimate issue is whether a fact issue exists. Buck v. Palmer, 381 S.W.3d 525,
527 & n.2 (Tex. 2012). A fact issue exists if there is more than a scintilla of
probative evidence. See id. at 527; TEX. R. CIV. P. 166a(c), (i). We must review the
summary judgment record “in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts against the motion.” City of
Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). “In reviewing a summary
judgment, we consider all grounds presented to the trial court and preserved on
appeal in the interest of judicial economy.” Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
Restrictive Covenants—Standing
In their first issue on appeal, the Jeansonnes contend the trial court erred in
granting T-Mobile’s summary judgment on the restrictive covenant claims.
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Specifically, the Jeansonnes contend that they have standing to enforce the
restrictive covenants on the Cy-Fair Property, despite having no property in that
area, because they are entitled to assert an equitable servitude. T-Mobile responds
that, as non-parties to the restrictive covenants who are not successors, assigns,
owners, or lessees of the restricted property and do not own property within the
restricted area, the Jeansonnes have no standing to enforce the restrictive
covenants. Similarly, T-Mobile contends that the Jeansonnes have no right to
enforce the covenants by way of an equitable servitude.
Standing is a legal question reviewed de novo. Myer v. Cuevas, 119 S.W.3d
830, 833 (Tex. App.—San Antonio 2003, no pet.). The test for standing is whether
there is “(1) a real controversy between the parties (2) that will be actually
determined by the judicial declaration sought.”Antonov v. Walters, 168 S.W.3d
901, 904 (Tex. App.—Fort Worth 2005, pet. denied).
We consider whether the Jeansonnes have standing either (a) under the terms
of the restrictive covenants, or (b) pursuant to the doctrine of equitable servitude.
(A) Under the Terms of the Restrictive Covenant
A restrictive covenant is a contractual agreement between the seller and the
purchaser of real property. Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d
662, 667 (Tex. App.—San Antonio 2008, no pet.). When construing a restrictive
covenant, appellate courts apply general rules of contract construction. Pilarcik v.
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Emmons, 966 S.W.2d 474, 478 (Tex.1998); Ski Masters, 269 S.W.3d at 668.
Covenants are examined as a whole in light of the circumstances present when the
parties entered into the agreement. Ski Masters, 269 S.W.3d at 667. The reviewing
court’s primary concern is to ascertain and give effect to the true intention of the
parties as expressed in the instruments. Owens v. Ousey, 241 S.W.3d 124, 129
(Tex. App.—Austin 2007, pet. denied). A trial court’s construction of a restrictive
covenant is reviewed de novo. Id.
The restrictive covenants at issue here apply exclusively to the Cy-Fair
Property, i.e., the property that LOE sold to CFISD. The deed conveying the 9.49
acres to CFISD incorporated the restrictive covenants, which “does hereby impose
upon the Cy-Fair Property the following covenants, restrictions, easements and
liens . . . which shall run with the land and be binding upon any Owner, Lessee,
tenant or mortgagee of any land or building in the Cy-Fair Property . . . ,”
including the restrictions on use as an elementary school and telephone utilities
above the ground. The record is undisputed that the Jeansonnes’ property is not
within the Cy-Fair Property, but is across the street in an adjoining subdivision that
is covered by its own separate restrictive covenants.
The restrictive covenants also state that they shall “inure to the benefit of
[LOE] or an Owner or Lessee of any land now or hereafter made subject to these
Protective Covenants[,]” and “shall . . . be enforceable by [LOA] or any Owner or
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Lessee of any land now or hereafter made subject to these Protective Covenants,”
and “[n]o tenant or mortgagee (while a mortgagee) or other person or entity shall
have any right to enforce these Protective Covenants.”
The Jeansonnes, who do not own property within the area covered by the
covenants, and who are neither owners, tenants, mortgagee, or assigns of either
LOA or CFISD, have no standing under the provisions of the restrictive covenants
to bring an action to enforce them.
(B) Under the Doctrine of Equitable Servitude
Nevertheless, the Jeansonnes contend that they have standing to enforce the
restrictions under the doctrine of equitable servitude because the covenant was
intended to benefit their adjoining land.
In ordinary circumstances, a restrictive covenant is enforceable only by the
contracting parties and those in direct privity of estate with the contracting
parties. Ski Masters, 269 S.W.3d at 668; see, e.g., Davis v. Skipper, 83 S.W.2d 318,
321–22 (Tex. 1935); Wayne Harwell Props., v. Pan Am. Logistics Ctr., Inc., 945
S.W.2d 216, 218 (Tex. App.—San Antonio 1997, writ denied). As we stated
earlier, the Jeansonnes are neither contracting parties, nor are they in privity with
the contracting parties, LOE and CFISD.
However, an exception exists whereby a restrictive covenant may be
enforced by someone other than the grantor or grantee. Ski Masters, 269 S.W.3d at
9
668. A property owner may subdivide property into lots and create a subdivision in
which all property owners agree to the same or similar restrictive covenants
designed to further the owner’s general plan or scheme of development. Id. Under
these circumstances, each purchaser within the subdivision is assumed to benefit
from the restrictions and each has the right to enforce the restrictions. Id.; see,
e.g., Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922) (“It is perfectly clear that it
is lawful for districts with restrictions [designed to benefit all property owners] to
be created, and also that each purchaser has the right to rely on and to enforce
those restrictions.”).
In Hooper v. Lottman, 171 S.W. 270 (Tex. Civ. App.—El Paso 1914, no
writ), the court described the rationale for allowing homeowners to enforce
restrictive covenants against similarly situated homeowners as follows:
[T]he general rule may be safely stated to be that where there is a
general plan or scheme adopted by the owner of a tract, for the
development and improvement of the property by which it is divided
into streets and lots, and which contemplates a restriction as to the
uses to which lots may be put, or the character and location of
improvements thereon, to be secured by a covenant embodying the
restriction to be inserted in the deeds to purchasers, and it appears
from the language of the deed itself, construed in the light of the
surrounding circumstances, that such covenants are intended for the
benefit of all the lands, and that each purchaser is to be subject
thereto, and to have the benefit thereof, and such covenants are
inserted in all the deeds for lots sold in pursuance of the plan, a
purchaser and his assigns may enforce the covenant against any other
purchaser, and his assigns, if he has bought with actual or constructive
knowledge of the scheme, and the covenant was part of the subject-
matter of his purchase.
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Id. at 272; see Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990). In other words,
when an owner of a tract subdivides and sells the subdivided parcels to separate
grantees, imposing restrictions on the use of each parcel pursuant to a general plan
or scheme of development, each grantee may enforce the restrictions against each
other grantee. Ski Masters, 269 S.W.3d at 669; Lehmann v. Wallace, 510 S.W.2d
675, 680–81 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.).
However, “it is well settled that a restriction on a piece of property may not
be enforced by one who owns land not subject to the restriction, absent privity of
contract or a general play or scheme of development applicable to the land that the
plaintiff does own. County Community Timberland Village, L.P., v. HMW Special
Utility District of Harris and Montgomery Counties, __S.W.3d.__, 2014 WL
1478009, at *5 (Tex. App.—Houston [1st Dist.] Apr. 15, 2014, no pet. h.) (citing
Wasson Interests, Ltd. v. Adams, 405 S.W.3d 971, 974 (Tex. App.—Tyler 2013, no
pet.)). A restrictive covenant is not enforceable solely due to a common source of
title, but requires either privity of contract or a general plan or scheme of
development. Wasson Interests, 405 S.W.3d at 974.
To establish a general plan or scheme or development, the party seeking to
enforce the restriction must show (1) that a common grantor (2) developed a tract
of land (3) for sale in lots and (4) pursued a course of conduct that indicates he
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intends to inaugurate a general scheme or plan of development (5) for the benefit
of himself and the purchasers of various lots, and (6) by numerous conveyances (7)
inserts in the deeds substantially uniform restrictions, conditions and covenants
against the use of the property. Country Community Timberland Village, 2014 WL
1478009, at *5 (citing Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990) and
Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 679 (1963)). When
these conditions are satisfied, “the grantees acquire by implication an equitable
right, variously referred to as an implied reciprocal negative easement or an
equitable servitude to enforce similar restrictions against that part of the tract
retained by the grantor or subsequently sold without the restrictions to a purchaser
with actual or constructive notice of the restrictions.” Evans, 796 S.W.2d at 466
(quoting Minner, 129 S.E.2d at 679).
In Country Community Timberland Village, this Court considered whether
homeowners seeking to enforce restrictions on a nearby tract of land had
established the existence or a general plan or scheme necessary to give them
standing. 2014 WL 1478009, at *7. In that case, a developer had subdivided a
143.5 tract of land that became Timberlake Village Subdivision. Id. at *1. It also
owned a smaller 3.93 acre piece of property that was not subdivided, referred to as
the Small Tract. Id. Timberlake Village and the Small Tract each had its own
covenants, conditions, and restrictions, which were in separate documents. Id.
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The Small Tract’s declarations included a restriction for residential purposes only.
Id. at *2. Subsequently, a Texas water district purchased a portion of the Small
Tract on which it planned to build a water plant. Id. Because its plans violated the
residential-use-only provision of the Small Tract’s Declarations, the water district
sought to condemn the restriction as it applied to the property it had purchased. Id.
The developer and several homeowners of Timberlake Village sought to recover a
portion of the condemnation award. Id. On appeal, this Court considered whether
the homeowners and developer had standing to recover damages for the
condemnation of deed restrictions on property in which they held no property
interest. Id. at *3.
First, this Court held that to establish a general plan or scheme applicable to
both the subdivision and the Small Tract, the developer and homeowners had the
burden to show that the developer had “develop[ed] a tract of land for sale in lots .
. . and by numerous conveyances insert[ed] in the deeds substantially uniform
restrictions conditions and covenants against the use of the property.” Id. at *7
(quoting Evans, 796 S.W.2d at 466). The Court concluded that the developer and
homeowners had failed to meet this burden, stating
[t]he pleadings and evidence at trial established the opposite of these
elements of a general plan or scheme. [The developer] did not develop
“a tract of land,” but two tracts of land. One such tract, the Small
Tract, was never subdivided into lots. And, the restrictions,
conditions, and covenants governing the Small Tract and the
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subdivision were not “substantially uniform” but differed in many
respects.
Id. The same is true in this case. Here, LOE created and developed two tracts of
land, each governed by its own restrictions, conditions, and covenants. And, as in
Country Community Timberland Village, the declarations on the smaller tract
adjacent to the subdivision—here, the Cy-Fair Property—give the right to enforce
the covenants only to “Lakes on Eldridge [the developer] or an Owner or Lessee of
any land now of hereafter made subject to these [Cy-Fair Property] Protective
Covenants.” See id. at *6 (“The Small Tract Declaration gives only owners of the
Small Tract or a portion thereof the power to enforce the restrictions applicable to
the Small Tract.”). Indeed, the Cy-Fair covenants further provide that “No . . .
other person or entity shall have any right to enforce these Protective Covenants.”
Because the Cy-Fair covenants imposed restrictions on only one piece of
property, and not on the property owned by the residents of the Lakes on Eldridge
Subdivision, there is no evidence of a general plan or scheme of development
covering only the restricted land. See id. at *7; see also Evans, 796 S.W.2d at 472
& n.2 (noting that when larger tract is subdivided in stages, separate subdivisions
are created with restrictions benefiting and burdening only land of each particular
subdivision).
Second, this Court in Country Community Timberland Village considered
whether, despite the absence of a general plan or scheme, the homeowners of the
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subdivision had standing to sue because “the restriction [in the Small Tract]
declarations was intended for the benefit of the owners in the subdivision.” 2014
WL 1478009, at *7. In that case, the recitals in the declarations applicable to the
Small Tract provided that the developer “desires to subject the [Small Tract]
Property to the . . . restrictions hereinafter set forth, for the benefit of the owners of
the Property and for the benefit of the owners of property located within
Timberlake Village [subdivision].” Id. at *8 (emphasis omitted). However, the
operative provisions of the Small Tract declarations made no mention of the
property in the subdivision or its owners. Id. This Court then held that “whatever
the grantor’s motivation, the plain language of the Small Tract Declaration created
property rights only with respect to owners of the Small Tract or portions thereof.”
Id. The absence of any mention of the subdivision’s property owners raised a
presumption that the Small Tract Declarations did not intend to confer a legal
benefit on them. Id. Thus, the Court concluded that “[t]he recitals, which reflect
the intent to benefit property owners within [the subdivision] cannot control the
operative clauses of the Small Tract Declaration.” Id.
In this case, there is no language, even in the non-operative recitals of the
Cy-Fair restrictions, of an express intent to benefit the homeowners of the Lakes
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on Eldridge Subdivision.1 And, like Country Community Timberland Village, the
operative provisions specifically provide that the restrictions “shall inure to the
benefit of and be enforceable by Lakes on Eldridge [the developer] or an Owner or
Lessee of any land now or hereafter made subject to these [Cy-Fair Property]
Protective Covenants[,] and that “[n]o . . . other person or entity shall have any
right to enforce these Protective Covenants.” When a document’s enforcement
clause unambiguously provides who may enforce a deed restriction, we cannot
enlarge that power or vest power in individuals not named. See id.
Because the Jeansonnes have failed to show a general plan or scheme of
development or that the Cy-Fair restrictions were intended for their benefit, we—
like the Court in Country Community Timberland Village—conclude that they have
no standing to enforce the restrictions found in the Cy-Fair Property’s restrictive
covenants. Our holding is consistent with Texas cases refusing to permit
landowners the right to enforce restrictive covenants on another’s property absent
privity of contract or a showing that both parcels of property are subject to a
1
Some of the Cy-Fair restrictions require property owners in the restricted property
to repair damages caused during construction to any sidewalk, easement, utility or
improvement in the neighboring subdivision, or to refrain from shining spotlights
at any residence adjoining the Cy-Fair Property. However, none of those specific
references to the subdivision are applicable here, and their specific nature does not
give rise to a general intent to “benefit” the subdivision by applying all the
provisions in the Cy-Fair restrictions, such as the “school-use” only restriction at
issue here.
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common, general plan or scheme of development. See Country Community
Timberlake Village, 2014 WL 1478009, *8-9 (holding that despite common
grantor, homeowners of subdivision had no standing to enforce restrictions on
adjoining property absent privity or general plan of development); Wasson
Interests, 405 S.W.3d at 974 (restrictive covenant is enforceable solely due to
common source of title, but requires privity of contract or general plan or
development scheme); Sills v. Excel Servs., Inc., 617 S.W.2d 280, 284 (Tex.
App.—Tyler 1981, no writ) (tract outside of subdivision not subject to restrictive
covenants imposed on subdivision); Nelson v. Flache, 487 S.W.2d 843, 846 (Tex.
App.—Amarillo 1972, writ ref’d n.r.e.) (“It is well settled that property owners of
one subdivision of an addition have no standing to enforce the restrictive covenants
applicable to separate and distinct subdivisions.” (citation omitted)); Jobe v.
Watkins, 458 S.W.2d 945, 948 (Tex. App.—Fort Worth 1970, writ ref’d n.r.e.)
(“property owners in one subdivision of an addition have no standing in court to
enforce deed restrictions imposed on property located in a separate and distinct
subdivision”); Moody v. City of Univ. Park, 278 S.W.2d 912, 923 (Tex. App.—
Dallas 1955, writ ref’d n.r.e.) (“Property owners in another subdivision have no
standing to enforce deed restrictions imposed upon property in a separate and
distinct subdivision.”); Russell Realty Co. v. Hall, 233 S.W. 996, 999 (Tex. Civ.
App.—Dallas 1921, writ dism’d w.o.j.) (when developer subdivides single parcel
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of land by filing two plats, imposing deed restrictions on first section, buyers of
lots in second section had no standing to enforce deed restrictions on first section).
Accordingly, the trial court did not err in granting T-Mobile’s motion for
summary judgment on the Jeansonnes’ breach of restrictive covenant claim
because of their lack of standing.
We overrule the Jeansonnes’ first issue on appeal.
Nuisance
In their second issue on appeal, the Jeansonnes contend the trial court erred
in granting summary judgment on their private nuisance claims.
(A) Law Applicable to Nuisance
A “nuisance” is “a condition that substantially interferes with the use and
enjoyment of land by causing unreasonable discomfort or annoyance to persons of
ordinary sensibilities.” Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264,
269 (Tex. 2004). Nuisance claims are frequently described as a “non-trespassory
invasion of another’s interest in the use and enjoyment of land.” GTE Mobilnet of
S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 615 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied).
A private-nuisance claim may arise when property is used in a way that
offends the neighbors’ senses; thus, foul odors, noise, and bright lights—if
sufficiently extreme—may constitute a private nuisance. Schneider Nat’l Carriers,
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147 S.W.3d at 269. Most nuisance actions involve an invasion of a plaintiff’s
property by light, sound, odor, or foreign substance. In Pascouet, the court held
that floodlights that shined into the plaintiffs’ backyard all night and noisy air
conditioners that interfered with normal conversation in the backyard, could be
heard indoors, and interrupted plaintiffs’ sleep constituted a nuisance. 61 S.W.3d at
616. In Lamesa Coop. Gin v. Peltier, 342 S.W.2d 613, 616 (Tex. Civ. App.—
Eastland 1961, writ ref’d n.r.e.), the court held that a cotton gin was a nuisance
because of its loud noises and bright lights that could be seen and heard on
plaintiff's property and because of the dust, lint, and cotton burrs that were carried
to the plaintiff’s property.
However, Texas courts have not found a nuisance merely because of
aesthetic-based complaints. For example, in Rankin v. FPL Energy, LLC, 266
S.W.3d 506, 507 (Tex. App.—Eastland 2008, pet. denied), the plaintiff sued
alleging that a wind farm on nearby property was a nuisance. The defendant
moved for summary judgment as to plaintiff’s claims that were based “in whole or
in part of the basis of any alleged aesthetic impact of [the defendant’s] activities,”
which the trial court granted. Id. at 508. The plaintiffs responded to summary
judgment by presenting evidence from the plaintiff that carried a consistent theme,
i.e., that “the presence of numerous 400-foot-tall wind turbines has permanently
and significantly diminished the area’s scenic beauty and, with it, the enjoyment of
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their property.” Id. at 511. The court noted that plaintiff’s nuisance claims were
“because of [their] emotional response to the loss of their view due to the presence
of numerous wind turbines substantially interfer[ing] with the use and enjoyment
of their property.” Id. In holding that such aesthetically-based claims were not
actionable, the court noted:
We do not minimize the impact of [defendant’s] wind farm by
characterizing it as an emotional reaction. Unobstructed sunsets,
panoramic landscapes, and starlit skies have inspired countless artists
and authors and have brought great pleasure to those fortunate enough
to live in scenic rural settings. The loss of this view has undoubtedly
impacted Plaintiffs. A landowner’s view, however, is largely defined
by what his neighbors are utilizing their property for. Texas caselaw
recognizes few restrictions on the lawful use of property. If Plaintiffs
have the right to bring a nuisance action because a neighbor’s lawful
activity substantially interferes with their view, they have, in effect,
the right to zone the surrounding property. Conversely, we realize that
Plaintiffs produced evidence that the wind farm will harm neighboring
property values and that it has restricted the uses they can make of
their property. [Defendant’s] development, therefore, could be
characterized as a condemnation without the obligation to pay
damages.
Texas caselaw has balanced these conflicting interests by limiting a
nuisance action when the challenged activity is lawful to instances in
which the activity results in some invasion of the plaintiff’s property
and by not allowing recovery for emotional reaction alone. Altering
this balance by recognizing a new cause of action for aesthetical
impact causing an emotional injury is beyond the purview of an
intermediate appellate court. Alternatively, allowing Plaintiffs to
include aesthetics as a condition in connection with other forms of
interference is a distinction without a difference. Aesthetical impact
either is or is not a substantial interference with the use and enjoyment
of land.
Id. at 512.
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Similarly, in Shamburger v. Scheurrer, 198 S.W. 1069 (Tex. Civ. App.—
Fort Worth 1917, no writ), the defendant began construction of a lumberyard in a
residential neighborhood, and neighboring homeowners sued, alleging that the
lumberyard would be “unsightly, unseemly, and have ugly buildings and
structures.” Id. at 1070. The court held that this did not constitute a nuisance,
noting that:
The injury or annoyance which warrants relief against an alleged
nuisance must be of a real and substantial character, and such as
impairs the ordinary enjoyment, physically, of the property within its
sphere; for if the injury or inconvenience be merely theoretical, or if it
be slight or trivial, or fanciful, or one of mere delicacy or
fastidiousness, there is no nuisance in a legal sense. Thus the law will
not declare a thing a nuisance because it is unsightly or disfigured,
because it is not in a proper or suitable condition, or because it is
unpleasant to the eye and a violation of the rules of propriety and
good taste, for the law does not cater to men’s tastes or consult their
convenience merely, but only guards and upholds their material rights,
and shields them from unwarrantable invasion.
Id. at 1071–72. In Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex.
Civ. App.—Dallas 1925, no writ), the court found that a garage being 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.” In Jones v.
Highland Mem’l Park, 242 S.W.2d 250, 253 (Tex. Civ. App.—San Antonio 1951,
no writ), the court held that the construction of a cemetery on adjacent property did
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not constitute a nuisance, noting: “However cheerless or disagreeable the view of
the cemetery in question may be to appellees, and no matter what unpleasant or
melancholy thoughts the same may awaken, no reason is thereby shown why
appellants should be restrained from making such use of their property.” Most
recently, in Ladd v. Silver Star I Power Partners, LLC., No. 11-11-00188-CV,
2013 WL 3377290 (Tex. App—Eastland May 16, 2013, no pet.) (mem. op.), the
court of appeals, following Rankin, held that a plaintiff’s nuisance claims against a
neighboring wind farm were not actionable “because as a matter of law aesthetic
impact will not support a claim for nuisance, [and] the trial court did not err when
it considered and granted [the defendant’s] motion for summary judgment as to
[plaintiff’s] visual nuisance claim.” Id. at *3.
(B) Analysis
The Jeansonnes’ Third Amended Petition provides as follows:
19. Defendant’s conduct resulted in a Cell Tower which substantially
interferes with the Plaintiff’s private use and enjoyment of their home
and intrudes on their solitude and seclusion in a way that is
unreasonable and offensive to a reasonable person similarly situation.
20. As a proximate cause of the interference by Defendant Plaintiff’s
have suffered damages.
21. Defendant’s interference with and invasion of Plaintiff’s property
caused injury to Plaintiffs, which resulted in the following damages:
a. permanent depreciation in market value of Plaintiff’s
property.
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b. emotional harm to Plaintiffs and their family from the
deprivation of the full enjoyment of their property including
loss of peace of mind
c. physical harm to Plaintiffs including assault to their senses.
During discovery, T-Mobile questioned the Jeansonnes about the basis for
this nuisance claim, and three possible grounds were revealed: (1) alleged potential
radio frequency emissions caused by the cell phone tower, (2) construction activity
during the 7-10 days of construction, and (3) the alleged unsightliness of the cell
phone tower. Of these potential nuisance claims, the Jeansonnes’ brief mentions
only the third. There is no issue attacking the trial court’s grant of partial summary
judgment on their nuisance claims, which were based on radio-frequency
emissions. And, the Jeansonnes’ brief raises no issue, nor even mentions, any
nuisance as a result of construction activities. Thus, those issues are waived. See
TEX. R. APP. P. 38.1(f). Additionally, the Jeansonnes’ deposition testimony, as well
as that of their real estate export, was there was no damage caused as a result of the
brief construction period.
Instead, the Jeansonnes argue that they did not plead aesthetic nuisance, and
that a jury should have been allowed to “hear all the testimony to make a
determination whether Defendant’s actions are nuisance as defined above.”
Specifically, the Jeansonnes argue that Clay Jeansonne’s affidavit, which was
attached to their response, raises a fact issue regarding nuisance. In his affidavit,
Jeansonne asserts in relevant part:
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The Cell Tower which has been constructed by Defendant on the
premises of Kirk [E]lementary School is at least 50 foot in height and
within 50 yards of my home. The construction work on the cell tower
was permitted to continue into the late hours of the evening keeping
me and my family from sleeping. Diesel fumes and noises from the
heavy construction equipment were overwhelming in our back yard
making it impossible to sit on our patio or enjoy the pool during the
construction period. Workman [sic] on cranes used to install the
tower were able to view back yard and pool area where we were
attempting to swim and sun bath during spring break. The workmen
were able to view members of the family in their bathing suits which
made our family uncomfortable and prevented us from enjoying the
use of our yard and pool area. Several homes are for sale in the area
around the cell tower and have not been able to be sold in part because
of the cell tower. The emotional distress created by the cell tower has
also place[d] stress on my marriage, as my wife insists that as a result
of its construction and continued use that they move from the area due
to radiation, blight and other problems from the cell tower’s existence.
I have read the Affidavit of Shawn St. John and dispute the statement
in his Affidavit attached to the Defendant’s Traditional and No
Evidence Motion for Summary Judgment as Exhibit J that there is a
stealth or concealed telecommunications tower on the premises of
Kirk Elementary School. It is a readily identifiable cell tower, not
concealed at all, not blending in, and which is visible by day and night
from my home and by virtue of the lighting at and around it
illuminating it thereby making it easily visible at night. It is 50 feet
from our property and at least 50 feet high. I dispute that there are a
number of green areas between my home and the Kirk Facility as
there is one small patch of green grass. I dispute that there is a
privacy fence that has any impact of the effect of the cell tower to my
and my family’s senses.
My property has declined in valued approximately $50,000.00 as a
result of the construction and existence of the cell tower.
The first paragraph of Jeansonne’s affidavit concerns the activities occurring
during the 10-day-construction period and possible radio-frequency emissions. As
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we have already held that the Jeansonnes are not complaining on appeal about
those issues, the first paragraph of Clay Jeansonne’s affidavit does not raise a fact
issue regarding nuisance.
The second paragraph alleges that the property is “a readily identifiable cell
tower, not concealed at all, not blending in” and that lighting makes it visible night
and day. However, in her deposition, Donna Jeansonne made clear that the
nuisance claim was not based on the lights on the tower invading his property, but
was because of the tower’s looks:
[Donna Jeansonne]: I’m not sure if additional lighting was added or
not. That, I—I want to go on the record as I don’t know if they added
more lights or not.
[Defense Counsel]: But even if they did add more lights, the issue is
not that there’s more light coming into your backyard, because, as you
testified, you have streetlights that are closer than—
[Donna Jeansonne]: Exactly—
[Defense Counsel]:—those lights?
[Donna Jeansonne]:—I have streetlights.
[Defense Counsel]: The issue is that it makes the tower look worse,
right, it’s aesthetics.
[Donna Jeansonne]: Of course, I don’t like the way it looks.
[Defense Counsel]: Okay. And—with respect to this lighting issue,
the issue is aesthetics?
[Donna Jeansonne]: Okay. Yes.
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Clay Jeansonne’s deposition testimony also confirmed that the suit was based on
how the tower looks:
[Defense Counsel]: And do you have the understanding that what
remains in this case are your nuisance claims related to the
construction of the tower?
[Clay Jeansonne]: Uh-huh.
[Defense Counsel]: And your nuisance claims related to your claims
for loss of property value for how the tower looks in its present
location?
[Clay Jeansonne]: Okay.
[Defense Counsel]: Is—is that your—your understanding of what
your claims are—
[Clay Jeansonne]: Yeah.
****
[Defense Counsel]: And the reason why you’re complaining about
that is that you think the tower’s unattractive.
[Clay Jeansonne]: I think the tower lower property values.
[Defense Counsel]: And tell me what particular attributes of the
tower you think causes it to lower property values.
****
[Defense Counsel]: Do you need me to ask you the question again,
Mr. Jeansonne?
[Clay Jeansonne]: No, but I think you have some pictures that would
help—
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[Defense Counsel]: Well . . . before—before we look . . . at the
pictures, in your words, tell me what about the tower you think causes
it to lower property values?
[Clay Jeansonne]: When you drive in from . . . When you turn, this is
Tanner, this is— I’m not sure what this street is. Let me check real
quick. I’m sorry, it’s actually Summerland Ridge. So the dot is the
tower. So when you come from Tanner off of whatever that street is
right here, Ginger Ponds I think you said, when you make that turn
right there, it looks like a huge smokestack emanating out of that.
And these aren’t my words. The—unfortunately, I think these words
could be very offensive to some people, but these words have been
said to me that it looks like a tower from Auschwitz.
[Defense Counsel]: You’ve said a few times that your family has—
you children . . . have referred to the tower as the Willy Wonka
Chocolate Factory tower?
[Clay Jeansonne]: Uh-huh.
[Defense Counsel]: And you mentioned earlier today that you heard
someone call it a smokestack like from Auschwitz?
[Clay Jeansonne]: Yes.
****
[Defense Counsel]: And—and the primary concern there with
describing it that way or as it—it looks like a tower from Auschwitz is
how it looks, right?
[Clay Jeansonne]: I would have to say yes.
As made clear, and undisputed, from both Clay Jeansonne’s affidavit and
deposition testimony, the nuisance suit is based on the Jeansonnes’ concern that
“[i]t is a readily identifiable cell tower, not concealed at all, not blending in.”
Thus, despite the Jeansonnes’ claim that they have pleaded “nuisance, not aesthetic
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nuisance,” because all their claims involve how the tower looks, this is a
distinction without a difference.
As such, this case is controlled by the holdings set forth in Rankin,
Shamberger, Garrett, Jones, and Ladd. Because the Jeansonnes’ nuisance claims
are based on the unsightliness of a cell-phone tower that they allege looks like an
“Auschwitz smokestack” or “Willy Wonka’s chimney,” the trial court did not err
in granting T-Mobile’s motion for summary judgment on the Jeansonnes’ nuisance
claims.
We overrule the Jeansonnes’ second issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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