John Hall and Roberta Wagner v. Karen Seal and Russell Seal ( 2011 )

MEMORANDUM OPINION
No. 04-09-00675-CV
John HALL and Roberta Wagner,
Appellants
v.
Karen SEAL and Russell Seal,
Appellees
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 05-04-17328-CV
Honorable James M. Simmonds, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: January 5, 2011
AFFIRMED IN PART; REVERSED & REMANDED IN PART; REVERSED & RENDERED
IN PART
This appeal arises from a permanent injunction directed toward several nuisances.
Appellants John Hall and Roberta Wagner argue that the injunction was improper because
Appellees Karen and Russell Seal failed to prove that they suffered an irreparable injury or
lacked an adequate legal remedy. They also argue that the trial court erred by failing to balance
the equities of granting injunctive relief. Hall and Wagner further argue that the injunctive relief
was too broad because several of its provisions: (1) were not supported by the pleadings or
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evidence; or (2) restricted their lawful activities. Finally, they argue that the court enjoined the
completion of a structure that, as a matter of law, was not a nuisance. We reverse the trial
court’s judgment as it relates to some of the alleged nuisances. We render judgment as to certain
nuisances, but remand the cause for further consideration as to other nuisances. We affirm the
remainder of the judgment.
BACKGROUND
Since the 1980s, the Seals have lived in rural Medina County. In 2004, Hall and Wagner
purchased an adjacent eleven-acre lot. Several issues arose between Hall and Wagner and the
Seals regarding the former’s use of their property. Though Hall and Wagner did not live on their
lot, they used the land as a hay farm and to store several pieces of farming and landscaping
equipment, as well as windows, glass, and tin. They placed the equipment along the property
line, close to the Seals’ house, driveway, and garage. To separate the Seals’ home from Hall and
Wagner’s equipment, Mr. Seal built a privacy fence.
For unknown reasons, Hall, Wagner, and their family and friends began to socialize on
their lot near the Seals’ house. On several occasions, they hunted dove and sometimes shot over
the privacy fence. Hall and Wagner also constructed a go-kart track on their property near the
Seals’ pool and kitchen. Their use of the track would stir up dust that travelled onto the Seals’
property. Early in the morning and late in the evening, Hall would frequently drive his truck
near the fence to load and unload his equipment. Hall and Wagner would also play music so
loudly that the Seals’ house would rumble, and porcelain items would fall off the wall and break.
Mrs. Seal occasionally caught Hall stalking her. Many times when Mrs. Seal drove past
Hall in his truck, Hall would circle around and follow her. On one occasion, Mrs. Seal caught
Hall in the bushes, spying on her by peering through the privacy fence. On another occasion,
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Mrs. Seal noticed Hall behind the privacy fence eavesdropping on her conversation. Mrs. Seal
frequently saw Hall standing outside of her kitchen window when she was cooking in the
evenings.
In 2006, Hall and Wagner built a water tower and started building another structure along
the common property line near the Seals’ home by erecting twelve steel posts that stood about
eighteen feet tall. Over time, Hall and Wagner installed electricity and plumbing in the structure.
The Seals feared that this new structure would be a “base of operations” from which Hall and
Wagner would continue their relentless actions to harass them. The Seals attempted several
times to get Hall and Wagner to voluntarily stop their activities near their home. The Seals
consulted a counselor and their minister, and had friends talk to Hall and Wagner about stopping
their activities.
After their efforts failed, the Seals brought a nuisance action against Hall and Wagner.
The Seals requested the following injunctive relief:
[T]hat the barn be moved 150 feet from the Plaintiffs’ kitchen/dining room,
garden area, swimming pool and barbeque pit. Plaintiffs request that Defendants
be enjoined from driving along the fence in order to harass and harm Plaintiffs’
peaceful enjoyment of their property, playing loud music, growing weeds and
trees on the fence line, stacking boards and junk along the fence line and placing
equipment near or on the fence line.
In the two weeks before trial, Hall and Wagner accelerated their construction of the structure,
which appeared to be a barn for storing hay.
At the close of trial, the jury found that Hall and Wagner “create[d] a nuisance which was
a cause in fact of . . . injury to [the Seals].” The jury charge explained that a nuisance occurs by
either:
(1) physical harm to property such as encroachment of a damaging substance or
by the property’s destruction; (2) physical harm to a person on his property, such
as an assault to his senses . . . ; [or] (3) emotional harm to a person from the
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deprivation of the enjoyment of his or her property, such as by fear, apprehension,
offense or loss of peace of mind.
The trial court then rendered judgment, enjoining several of Hall and Wagner’s objectionable
activities. Hall and Wagner appeal the judgment.
GRANT OF INJUNCTIVE RELIEF
To be entitled to permanent injunctive relief, an applicant must establish the existence of
an irreparable injury and the lack of an adequate legal remedy. Swate v. Medina Cmty. Hosp.,
966 S.W.2d 693, 700 (Tex. App.—San Antonio 1998, pet. denied). 1 Moreover, in deciding
whether to grant an injunction, a trial court balances the equities regarding the benefits achieved
and burdens imposed by an injunction. See Storey v. Central Hide & Rendering Co., 226 S.W.2d
615, 618–19 (Tex. 1950). Hall and Wagner argue that the trial court erred by granting injunctive
relief because: (1) the Seals presented no evidence that they lacked an adequate legal remedy or
that they suffered an irreparable injury; and (2) the trial court heard no evidence regarding the
balancing of the equities.
A. Standard of Review
An appellate court reviews a trial court’s grant of a permanent injunction for an abuse of
discretion. Operation Rescue-Nat’l v. Planned Parenthood of Houston & S.-E. Tex., Inc., 975
S.W.2d 546, 560 (Tex. 1998). We do not substitute our judgment for the trial court’s judgment
“unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable
discretion.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We view the
evidence in a light most favorable to the trial court’s judgment. Swate, 966 S.W.2d at 700. If
some evidence appears in the record that reasonably supports the trial court’s decision, there is
1
The applicant must also show a wrongful act and an imminent harm. Id. However, Hall and Wagner argue only
the lack of an irreparable injury and the availability of an adequate legal remedy.
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no abuse of discretion. Id. The trial court abuses its discretion only if the record contains no
evidence supporting the trial court’s findings. Operation Rescue Nat’l, 975 S.W.2d at 560.
B. Irreparable Injury & Lack of an Adequate Legal Remedy
A party suffers an irreparable injury and has no adequate legal remedy if a nuisance is of
a recurring nature. See Etan Indus., Inc. v. Lehmann, 308 S.W.3d 489, 512 (Tex. App.—Austin
2010, pet. filed); Holubec v. Brandenberger, 214 S.W.3d 650, 656 (Tex. App.—Austin 2006, no
pet.). A nuisance is of a recurring nature if the evidence shows that the author of the nuisance
will not cease the nuisance without a court order. See Holubec, 214 S.W.3d at 656.
Wagner admitted that she would not cease the complained of activities on her property
even if they created a condition that substantially interfered with the Seals’ use and enjoyment of
their property. Hall testified that he would not consider moving the barn and agreed with
Wagner’s testimony about their activities. Thus, the trial court did not abuse its discretion
because the evidence established that the nuisance was of a recurring nature and thereby
supported the existence of an irreparable injury and the lack of an adequate legal remedy because
the nuisance was of a recurring nature. See Etan Indus., 308 S.W.3d at 512; Holubec, 214
S.W.3d at 656.
C. Balancing of the Equities
In determining whether to grant injunctive relief, a trial court balances the equities and
relative hardships on the parties and the public. See Storey, 226 S.W.2d at 618–19. In balancing
the equities, a trial court may compare evidence of harm that could result to the defendant and
the public by granting the injunction with the evidence of harm to be sustained by the
complainant if the court denies the injunction. See id. “If the court finds that the injury to the
complainant is slight in comparison to the injury caused the defendant and the public by
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enjoining the nuisance, relief will ordinarily be refused.” Id. at 619. A trial court may consider
evidence that was presented to the jury or to the judge outside of the presence of the jury. See
Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 287 (Tex. 2004). The conclusion that
the balance of the equities favors an injunction lies within the trial court’s sound discretion. See
Lee v. Bowles, 397 S.W.2d 923, 929 (Tex. Civ. App.—San Antonio 1965, no writ).
The trial court heard significant evidence from the Seals that the actions of Hall and
Wagner disrupted their daily lives. Hall testified that the barn was erected a few days before
trial, and admitted to assuming the risk of having to tear down the barn in the case of an adverse
decision by the court. Hall also testified that building the barn on other parts of his property
would cost him more in terms of installing electricity and building a road. The trial court heard
evidence that Hall and Wagner’s lot was eleven acres. The Seals requested that the structure be
moved 150 feet away from the common property line, leaving significant room for Hall and
Wagner to rebuild their barn. Because there was some evidence of the relative hardships to the
Seals and to Hall and Wagner, the trial court did not abuse its discretion in concluding that the
balance of the equities favored granting the injunction. See Storey, 226 S.W.2d at 619; Lee, 397
S.W.2d at 927. Moreover, the trial court was not required to hold a separate evidentiary hearing
to reconsider the evidence already presented as to the relative hardships. See Bates, 147 S.W.3d
at 289.
SCOPE OF THE INJUNCTIVE RELIEF
Hall and Wagner next argue that the injunction is overly broad because: (1) several of its
provisions are not supported by both the pleadings and the evidence; (2) some provisions restrict
their lawful activities; and (3) the provision relating to their barn enjoins an activity that is not a
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nuisance as a matter of law. 2 Specifically, Hall and Wagner complain of the injunctive relief as
it relates to: (1) the barn; (2) the water tower; (3) farming equipment; (4) non-farming and other
equipment; (5) the shed; (6) boards; (7) other materials; (8) hay bales; (9) driving; (10) shooting;
(11) noise levels; (12) drainage points; (13) weeds and trees; (14) dirt and dust; and (15)
“interfering with normal use and enjoyment of the Seal property” and “harassing behavior
directed toward the Seals, their property and/or home.”
A. Standard of Review
A trial court generally possesses great discretion in issuing an injunction. Operation
Rescue Nat’l, 975 S.W.2d at 560. A trial court abuses its discretion if the scope of an injunction
is not supported by the pleadings, the evidence, or the usages of equity. Holubec v.
Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003). An applicant for an injunction must be specific
in pleading the relief sought, and a court is without authority to grant relief beyond what is
requested. San Augustine Indep. Sch. Dist. v. Woods, 521 S.W.2d 130, 132–33 (Tex. Civ.
App.—Tyler 1975, no writ). A trial court also abuses its discretion by entering an injunction that
is so broad as to either grant plaintiffs more relief than they are entitled to or enjoin defendants
from conducting lawful activities and exercising legal rights. Holubec, 111 S.W.3d at 39–40.
B. The Barn
Hall and Wagner were directed to move their barn at least 150 feet from the privacy fence
and seventy-five feet from the remainder of the common property line. Hall and Wagner argue
that (1) the barn is not a nuisance under the Right to Farm Act; and (2) neither the pleadings nor
2
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.” Holubec v. Brandenberger, 111 S.W.3d
32, 37 (Tex. 2003). “There is no question that foul odors, dust, noise, and bright lights—if sufficiently extreme—
may constitute a nuisance.” Bates, 147 S.W.3d at 269.
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the evidence supports the 150-foot distance for the setback. Hall and Wagner do not challenge
the sufficiency of the evidence that the barn was a nuisance.
1. The Right to Farm Act
Under the Right to Farm Act, an owner of agricultural property is not liable to another
owner of agricultural property for agricultural improvements, including a barn, on the former’s
property. TEX. AGRIC. CODE ANN. § 251.006(a) (West 2006). The Seals claim that Hall and
Wagner waived this defense because it was not pleaded.
An affirmative defense must be specifically pleaded. TEX. R. CIV. P. 94. “An affirmative
defense does not seek to defend by merely denying the plaintiff’s claims, but rather seeks to
establish an independent reason why the plaintiff should not recover.” Tex. Beef Cattle Co. v.
Green, 921 S.W.2d 203, 212 (Tex. 1996) (citation and internal quotes omitted). Hall and
Wagner respond that the Right to Farm Act is an inferential rebuttal issue that was preserved by
their general denial, rather than an affirmative defense that must be pleaded. An inferential
rebuttal defense “is one which seeks to disprove the existence of an essential element submitted
in another issue.” Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978). “The basic
characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory from
the claim relied upon for recovery.” Id.
The Right to Farm Act would defeat liability even if all the nuisance elements were
established. See TEX. AGRIC. CODE ANN. § 251.006(a). We, therefore, hold that the Right to
Farm Act provides an affirmative defense rather than an inferential rebuttal defense. See id.;
TEX. R. CIV. P. 94; Tex. Beef Cattle Co., 921 S.W.2d at 212. Consequently, because Hall and
Wagner did not specifically plead the Right to Farm Act as an affirmative defense, they waived
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this defense. See TEX. R. CIV. P. 94; Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49,
53 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.).
2. Evidence & Pleadings
An injunction must be reasonably justified by the “pleadings, the evidence, and the
usages of equity.” Holubec, 111 S.W.3d at 39. Hall and Wagner argue that the injunction
relating to the barn is not supported by the pleadings because the Seals requested a 150-foot
buffer from “Plaintiffs’ kitchen/dining room, garden area, swimming pool and barbeque pit,” not
from the fence line. The injunction prohibited the construction of the barn within 150 feet of the
privacy fence and seventy-five feet from the remainder of the common property line. The Seals
requested that Hall and Wagner be enjoined from constructing the barn within 150 feet of four
fixed points on their property. Their request only pertained to the area on the Hall and Wagner
lot within 150 feet of these points. However, the injunction prohibits the construction of a barn
in the area on Hall and Wagner’s property that extends 150 feet from the entire length of the
Seals’ fence as it runs past their house, driveway, swimming pool, garden area, and barbeque pit.
The injunction also prohibits the construction of the barn within seventy-five feet from the
remainder of the common property line as it runs north and south away from the Seals’ home.
Because the injunction enjoined the construction of a barn on an area of Hall and Wagner’s
property that was not reasonably justified by the pleadings, the trial court abused its discretion.
See id.
C. Farming Equipment
The injunction directed Hall and Wagner to move their farming equipment at least fifty
feet 3 from the common property line. At trial, Mr. Seal testified that he did not mind the farming
equipment on the Hall and Wagner property, and did not testify to any physical or emotional
3
The distances of the trial court’s setbacks varied from fifty feet to one hundred fifty feet.
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harm or property damage resulting from the farming equipment. Because the injunction’s
provision regarding the farming equipment is not supported by the evidence, the trial court
abused its discretion. See id. at 39–40; Operation Rescue Nat’l, 975 S.W.2d at 560.
D. Non-Farming & Other Equipment
The court also applied the fifty-foot setback to non-farming and other equipment.
Though both of the Seals testified that Hall and Wagner’s stacking of equipment near and on the
fence line emotionally harmed them and interfered with their enjoyment of property, their
testimony related only to the stacking of the materials to be used to construct the barn. There
was no evidence that the stacking of non-farming and other equipment—for any other reason
than to construct the barn—caused the Seals physical or emotional harm or property damage.
Thus, the injunction’s absolute prohibition on the placement of non-farming and other equipment
within the fifty-foot setback is not supported by the evidence and constitutes an abuse of
discretion. See Holubec, 111 S.W.3d at 39–40; Operation Rescue Nat’l, 975 S.W.2d at 560.
E. The Shed
The injunction also prohibited Hall and Wagner from placing a shed within fifty feet of
the common property line. Because the Seals presented no evidence that the shed had caused
them physical or emotional harm or property damage, the provision regarding the shed is not
supported by the evidence or pleadings and constitutes an abuse of discretion. See Holubec, 111
S.W.3d at 39–40; Operation Rescue Nat’l, 975 S.W.2d at 560.
F. Boards
The injunction applied the fifty-foot setback to the placement of boards near the Seals’
property. Hall and Wagner argue only that the setback line is “much further away” than what the
Seals requested, which was that the boards not be placed “on or near” the fence. Because they
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do not challenge the sufficiency of the evidence that the boards constituted a nuisance, the trial
court could have concluded that, to abate this nuisance, the fifty-foot setback was reasonably
justified by the pleadings, evidence, and usages of equity. See Holubec, 111 S.W.3d at 39.
G. Driving
The injunction also provided, “Driving within fifty feet (50’) of the common property
line is prohibited except for legitimate farming purposes and not with the intent to disturb the
peace and enjoyment of the Seal family on their property.” Hall and Wagner argue that this is
overly broad because it is not supported by the pleadings and restricts lawful use of their
property. They do not challenge the sufficiency of evidence that their driving activities with the
intent to harass the Seals constitute a nuisance.
The Seals requested that Hall and Wagner “be enjoined from driving along the fence in
order to harass and harm Plaintiffs’ peaceful enjoyment of their property.” (emphasis added).
The injunction is broader than what the Seals requested because it enjoins Hall and Wagner from
any non-agricultural driving activities within fifty feet of the entire property line, not just along
the privacy fence. 4 In doing so, this provision restricts Hall and Wagner’s use of the property for
any lawful non-farming purposes that are not intended to harass the Seals. Thus, the trial court
abused its discretion because the provision regarding Hall and Wagner’s driving was overly
broad. See id. at 39–40.
H. Noise Levels
The injunction also provided, “[N]oise levels created by any activity on the Hall/Wagner
property shall be limited to 50dB or less as measured from the privacy fence between the
Seal/Hall property line.” Hall and Wagner argue that this is outside the scope of the Seals’
4
“Driving within fifty feet (50’) of the common property line is prohibited except for legitimate farming purposes
and not with the intent to disturb the peace and enjoyment of the Seal family on their property.”
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pleadings, but do not challenge the sufficiency of the evidence that their playing loud music was
a nuisance. The Seals requested only that Hall and Wagner be enjoined from “playing loud
music.” Because the injunction’s provision restricts Hall and Wagner’s use of the property for
all lawful and legitimate activities that create noise levels above fifty decibels, rather than just
“playing loud music,” the trial court abused its discretion. See id.; Butnaru, 84 S.W.3d at 204.
I. Weeds & Trees
The injunction required Hall and Wagner to cut and control weeds and trees near the
fence line. Although the Seals testified that they did not like the weeds and trees, no evidence
supported that the failure to cut the weeds or trees was a cause in fact of any physical or
emotional harm or property damage. Thus, the trial court abused its discretion by issuing an
injunction regarding Hall and Wagner’s weeds and trees. See Holubec, 111 S.W.3d at 39–40;
Woods, 521 S.W.2d at 132.
J. The Water Tower, “Other Materials,” Hay Bales, Shooting, Drainage Points, Dirt &
Dust, and Interference with the Normal Use and Enjoyment of the Seals’ Property
The trial court’s judgment contained several injunctions directed to several other items
and activities on Hall and Wagner’s property including: (1) moving a water tower, “other
materials,” and hay bales away from the property line; (2) refraining from shooting over the
privacy fence; (3) keeping their drainage points open; (4) avoiding the stirring up of dirt and
dust; and (5) interfering with the Seals’ normal use and enjoyment of their property. However,
nothing in the Seals’ request for injunctive relief mentions any of these items or activities.
Consequently, the injunction’s provisions regarding these items and activities are not supported
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by the pleadings, and are thus an abuse of the trial court’s discretion. See Holubec, 111 S.W.3d
at 39. 5
CONCLUSION
Because the Seals presented some evidence that they suffered an irreparable injury and
lacked an adequate legal remedy, and because the trial court considered some evidence of the
relative hardships of each party, the trial court did not abuse its discretion in granting an
injunction; however, the injunctive relief granted was overly broad. Because there was no
pleading or evidence to support some of the injunctive relief, we reverse the judgment as it
relates to the following: (1) water tower; (2) farming equipment; (3) non-farming and other
equipment; (4) shed; (5) “other materials”; (6) hay bales; (7) shooting activities; (8) drainage
points; (9) weeds and trees; (10) stirring up of dirt and dust; (11) “interfering with the normal use
and enjoyment of the Seal property”; (12) barn; (13) driving near the common property line; and
(14) activities creating noise levels in excess of fifty decibels. We render judgment dissolving
the injunction as to the following items or activities: (1) water tower; (2) farming equipment; (3)
non-farming and other equipment; (4) shed; (5) “other materials”; (6) hay bales; (7) shooting
activities; (8) drainage points; (9) weeds and trees; (10) stirring up of dirt and dust; (11)
“interfering with the normal use and enjoyment of the Seal property.” We remand the cause to
the trial court for further consideration of the injunction’s provisions relating to: (1) the barn; (2)
driving near the common property line; and (3) activities creating noise levels exceeding fifty
decibels. Finally, we affirm the remainder of the trial court’s judgment.
Rebecca Simmons, Justice
5
Our reversal of the injunction regarding Hall and Wagner’s shooting toward the Seals’ home does not permit Hall
and Wagner to continue such activity to the extent it is otherwise illegal.
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