Wednesday, November 7, 2018

Major changes coming to Houston Courts of Appeals thanks to Nov. 2018 General Elections: Republican Incumbents Defeated

BIG ELECTION-DRIVEN TURNOVER 
COMING TO APPEALS COURTS IN HOUSTON 

Seat of Houston Courts of Appeals in the historic Harris County Courthouse

Based on preliminary election results reported by the Texas Secretary of State, all Republican incumbents on the First and Fourteenth Court of Appeals in Houston who ran for reelection this year have lost their jobs effective December 31, 2018 even though the Republican incumbents on the state's highest appellate courts--the Texas Supreme Court and the Court of Criminal Appeals--were reelected. The latter are elected statewide while the members of the Houston-based appellate courts are elected from an appellate district comprising Harris County and nine surrounding counties. All current incumbents on the Houston-based courts of appeals were elected or appointed as Republicans. Their terms will expire December 31, 2018.


OUT ON THE FIRST COA: Justice Jane Bland (R), Justice Harvey Brown (R), Justice Michael Massengale (R), and appointed Justice Jennifer Caughey (R), who stood for election for the first time, rather than running for reelection. Justice Terry Jennings, elected as a Republican, quit the Republican Party in 2016 and did not seek reelection in 2018.

IN: Gordon Goodman (D), Sarah Beth Landau (D), Julie Countiss (D)(defeating Republican Terry Yates in an open race), Richard Hightower (D), Peter Kelly (D).


First Court of Appeals Races - Election Results 

OUT ON THE FOURTEENTH COA: Justice Brett Busby (R), Justice Marc Brown (R), Justice Martha Hill Jamison (R), Justice Bill Boyce (R), Justice John Donovan (R)

IN: Jerry Zimmerer (D), Charles Spain (D), Frances Bourliot (D), Meagan Hassan (D), Margaret “Meg” Poissant (D)

Fourteenth Court of Appeals Races - Election Results 
Democrats also swept Republican incumbents out of the Harris County courthouse. The trial court judges (district and county court judges) are elected from election districts coextensive with Harris County. Justices of the Peace (JPs) are elected from precincts and less affected by larger partisan shifts. 

Some judicial incumbents' time will be up come
at the end of 2018. Not all sitting district judges were up for re-election this year. 

NOV. 6, 2018 VOTING PATTERN IN HARRIS COUNTY

The straight-party vote for Democrats in Harris County was 55.25% against 44.12% for the Republicans. Libertarians made up the tiny difference. Democratic U.S. Senate candidate Beto O'Rourke attracted 57.86% of the vote in Harris County against only 41.42% for Ted Cruz.

Republican incumbents on the Texas Supreme Court (Justices Jeff Brown, John Devine, and recent appointee Jimmy Blacklock) would have lost by wide margins had they been elected from Harris County only.

In the SCOTX races, Democratic challengers Steven Kirkland, R.K. Sandill, and Kathy Cheng all pulled more than 55% of the votes in the county. Kirkland and Sandill are currently serving as District Judges in Harris County and were not up for reelection this year.

STATEWIDE VOTE IN SCOTX RACES VS HARRIS COUNTY ONLY 
REP John Devine: 53.72% statewide vs. 43.61% in Harris County
DEM R.K. Sandill: 46.27% statewide vs. 56.39% in Harris County
REP Jeff Brown: 53.72% statewide vs. 44.90% in Harris County
DEM Kathy Cheng: 46.27% statewide vs. 55.10% in Harris County
REP Jimmy Blacklock: 53.14% statewide vs. 43.40% in Harris County
DEM Steven Kirkland: 46.85% statewide vs. 56.60% in Harris County 
Voting in judicial races is mostly a party affair. Candidate-specific attributes appear to have made little difference at the statewide level, and only a small difference in Harris County, where the two Democratic candidates who have substantial judicial experience pulled more votes than the one who does not. Because Harris County is competitive, however, relatively small differences in votes can make all the difference in the outcome in district and county-bench races. Not in this midterm election, however, in which the margins were large both for Republicans (at the statewide level) and for the Democrats (in Harris County and first and fourteenth appellate district races).

Nov. 6, 2018 Election results for Texas Supreme Court races in Harris County
Nov. 6, 2018 Election results for Texas Supreme Court races in Harris County 
2018 ELECTION RESULTS FOR CIVIL BENCHES IN HARRIS COUNTY
EXCLUDING FAMILY, JUVENILE, AND PROBATE COURTS 

CIVIL DISTRICT COURT RACES IN HARRIS COUNTY (CIVIL TRIAL DIVISION EXCLUDING FAMILY COURTS)

55th DC: Republican Incumbent Jeff Shadwick lost to Latosha Lewis Payne 45.29% vs 54.71

113th DC Republican Incumbent Michael Landrum lost to Rabeea Collier 45.10% vs. 54.90

157th DC Republican Incumbent Randy Wilson lost to Tanya Garrison 44.84% vs. 55.16

190th DC Republican Incumbent Debra Ibarra Mayfield lost to Beau Miller 45.63% vs 54.37

234th DC Republican Incumbent Wesley Ward lost to Lauren Reeder 44.46% vs. 55.54

269th DC Republican Incumbent Dan Hinde lost to Cory Sepolio 45.12% vs 54.88

270th DC Republican Incumbent Brent Gamble lost to Dedra Davis 44.93% vs 55.07

281st DC Republican Incumbent Sylvia Matthews lost to Christine Weems 45.23% vs. 54.77

295th DC Michelle Fraga lost to Donna Roth 43.79% vs 56.21

Current Harris County Civil Division District Court Judges 

COUNTY CIVIL COURT-AT-LAW RACES IN HARRIS COUNTY

CCCL1 Democratic Incumbent George Barnstone won over Clyde Raymond Leuchtag, a former appointed judge of this court who attempted a comeback ,with 55.12% of the vote vs. 44.88 for Leuchtag, a Republican.

CCCL2 Dem Jim F. Kovach defeated Rep Erin Swanson 56.145 to 43.86. Incumbent Theresa Chang had previously lost her reelection bid in the Republican primary.

CCCL3 Republican Incumbent Linda Storey lost to Democrat LaShawn A. Williams 54.41 to 45.59.

CCCL4 Dem. William “Bill” McLeod defeated Rep. Sophia Mafrige 54.80% to 45.20.

The electorate did not heed the call: Republican Judges routed
Oh, the (post-election) irony 
The electorate did not heed the call: Republican Judges routed 




Monday, November 5, 2018

Motion for new trial must be set for hearing to establish relevant facts that form basis for relief

Evian Johnson and Mellanie M. Walton v. Pamela Lee & Donny Lee, NO. 01-17-00773-CV (Tex.App. - Houston [1st Dist.] Oct. 30, 2018) (appellants' failure to obtain hearing on motion to attack default judgment nixes appeal based on failure to preserve issues for review. Motion was overruled by operation of law in the trial court).

EVIAN JOHNSON AND MELLANIE M. WALTON, Appellants,
v.
PAMELA LEE AND DONNY LEE, Appellees.

No. 01-17-00773-CV.
Court of Appeals of Texas, First District, Houston.
Opinion issued October 30, 2018.

Derek Deyon, for Evian Johnson and Mellanie M. Walton, Appellants.
Neil A. Bickley, for Pamela Lee & Donny Lee, Appellee.

On Appeal from the 270th District Court, Harris County, Texas, Trial Court Case No. 2017-20412.
Panel consists of Justices Keyes, Bland, and Lloyd.

MEMORANDUM OPINION

JANE BLAND, Justice.

Evian Johnson and Mellanie M. Walton appeal from a default judgment. Johnson and Walton contend that the trial court abused its discretion when their motion for new trial was overruled by operation of law. Because Johnson and Walton did not request a hearing on their motion for new trial or present it to the trial court on written submission, they failed to preserve for our review the challenges to the judgment raised in the motion. Accordingly, we affirm the trial court's judgment.

BACKGROUND

This suit arises out of an automobile accident. Pamela and Donny Lee sued Johnson and Walton for negligence. Johnson and Walton were served with the Lees' petition but did not answer the suit. The Lees requested that the trial court enter a default judgment. The trial court signed a default judgment against Johnson and Walton, and it awarded damages in the amount of $10,400.82.
Johnson and Walton moved for a new trial, contending that their failure to answer resulted from their lack of notice of the lawsuit, or alternatively, their lack of understanding of "what legal documents to file and where." Walton attached an affidavit, in which she averred that all facts stated in the motion were true and correct and within her personal knowledge.
Johnson and Walton did not file a request for submission or seek a hearing on their motion. The record does not show that the trial court considered the motion either by written submission or at an oral hearing. The motion for new trial was denied by operation of law. Johnson and Walton moved for reconsideration, but the record again does not reveal any request for submission or hearing of the motion.

DISCUSSION

Johnson and Walton contend that the trial court abused its discretion by failing to grant a new trial based on the grounds asserted in their motion.

A. Standard of review and applicable law

We review a trial court's denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). But we do so only if the movant has first presented the motion to the trial court; if a movant seeks a new trial on a ground on which evidence must be heard, the movant must obtain a hearing on its new-trial motion to preserve error. See TEX. R. APP. P. 33.1(b); Felt v. Comerica Bank,401 S.W.3d 802, 808 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

B. Analysis

Johnson and Walton asked the trial court to set aside its default judgment in their motion for new trial, but they did not set the motion for a hearing, or request that the trial court consider it by written submission. The trial court never acted on the motion. Instead, the motion was denied by operation of law. Because a hearing on the motion for new trial was required to preserve the issues raised in the motion for our review, we overrule their appellate complaint. See TEX. R. APP. P. 33.1(b); Felt, 401 S.W.3d at 808see also R&G Transp. v. Fleetmatics, No. 01-14-00891-CV, 2016 WL 268553, at *2 (Tex. App.-Houston [1st Dist.] Jan. 21, 2016, no pet.) (mem. op.) (no abuse of discretion when movant fails to set new-trial motion for hearing and it is overruled by operation of law).

CONCLUSION

We affirm the judgment of the trial court.


Sunday, November 4, 2018

Apartment dweller loses roach infestation appeal, must pay landlord damages and attorney's fees after moving out early

SANE LOCKE V. BRIARWOOD VILLAGE, No. 14-17-00113-CV (Tex. App. - Houston [14th Dist.] Oct. 30, 2018)

Affirmed and Memorandum Opinion filed October 30, 2018.

In The
Fourteenth Court of Appeals
NO. 14-17-00113-CV
SANE LOCKE, Appellant
V.
BRIARWOOD VILLAGE, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1086625

M E M O R A N D U M   O P I N I O N

J. BRETT BUSBY, Justice.

Appellant Sané Locke sued Briarwood Village, her former apartment complex, alleging that the complex breached her lease because it could not eliminate a roach infestation. Briarwood Village filed a counterclaim asserting Locke breached her lease by failing to give sufficient notice that she was moving out of her apartment. After a bench trial, the trial court signed a judgment in favor of Briarwood.
Locke raises multiple issues challenging the trial court's judgment, which we liberally construe as a challenge to the legal and factual sufficiency of the evidence supporting the trial court's determination that she breached the lease but Briarwood Village did not. We overrule this issue because there was evidence that, if believed by the trier of fact, supported the trial court's implied findings that Briarwood Village reasonably addressed Locke's roach infestation complaints and that Locke breached the lease by failing to give proper notice she was moving out of her apartment. We therefore affirm the trial court's judgment.

BACKGROUND

Locke began renting a Briarwood Village apartment in 2014. She renewed her lease in late 2015, agreeing that she would reside in the complex until January 2017. Briarwood Village agreed in the lease to abide by all laws relating to safety and sanitation and to make all reasonable repairs, subject to Locke's obligation to pay for any damage for which she was responsible.

Locke's lease also provided that if Briarwood Village did not comply with its obligations under the lease, Locke "may possibly terminate" the lease and exercise other remedies provided by the Texas Property Code. To exercise this option, Locke was required to meet certain specified requirements. Locke first had to be current on her rent payments. Second, Locke was required to bring the problem to Briarwood Village's attention through a written notice requesting repair. Third, Locke had to give Briarwood Village a reasonable time to fix the problem after sending the notice. Fourth, if the problem had not been fixed after a reasonable time passed, Locke was required to make a second written request for repair. If the problem had still not been fixed after a second reasonable time period passed, Locke could "immediately terminate" the lease by giving a "final written notice."

According to Locke, she began seeing roaches in her apartment soon after renewing her lease. Locke reported the infestation to the complex management. Araceli Gil, the complex manager, testified that Locke's apartment was treated by exterminators after Locke's initial roach reports in October. Locke continued to report a roach infestation in her apartment, and the complex management continued sending its extermination service to treat the problem. Charles Lyons, the vice-president of Briarwood Village's extermination company, testified during trial. Lyons testified that his company treated Locke's apartment eight times between October 2015 and June 2016. Lyons also testified that his company's personnel never saw any roaches inside Locke's apartment during the eight treatments.

Locke continued to complain to the complex management about roaches in her apartment. As a result of Locke's continuing dissatisfaction with the complex's handling of her reported roach infestation, the apartment management offered Locke the opportunity to terminate her lease "with a 30 day notice to vacate in writing." Gil testified that Locke did not accept or reject the early-termination offer. Locke instead provided notice on June 6, 2016, that she would move out of her apartment on June 13 "due to the ongoing issues with roach/pest infestations."

Briarwood Village sent Locke a final account statement notifying Locke that she owed the complex $872.89.[1] According to Gil, Locke did not pay the charge. Locke instead sued Briarwood Village in justice of the peace court. The complex filed a counterclaim against Locke alleging that she breached the lease. The justice court found in favor of the complex and against Locke. It awarded the complex $391.68 in damages and $1,200 in attorney's fees. Locke appealed for a trial de novo in the county court at law. After a short bench trial, the county court found in favor of Briarwood Village. It awarded the complex $157.19 in damages and attorney's fees of $1,935. Findings of fact and conclusions of law were not requested by either party. This appeal followed.

ANALYSIS

I. Sufficient evidence supports the trial court's judgment.

In multiple issues on appeal, Locke argues the trial court erred when it rejected her claims and found instead in favor of Briarwood Village. Because Locke is pro se, we construe her issues liberally as a challenge to the legal and factual sufficiency of the evidence supporting the trial court's judgment in favor of Briarwood Village and against her own claims. See Garrett v. Graham, No. 14-16-00609-CV, 2017 WL 3927499. at *1 (Tex. App.-Houston [14th Dist.] September 7, 2017, no pet.) (mem. op.) ("Because Garrett is pro se, we will liberally construe the issues raised in his brief.").

When a bench trial is conducted and the trial court does not make findings of fact and conclusions of law to support its ruling, all findings necessary to support the judgment are implied. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). Because the trial court signed a final judgment in favor of Briarwood Village, but did not sign findings of fact and conclusions of law, we review Locke's complaint with the presumption that all findings of fact and conclusions of law were made in favor of the apartment complex. The judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex. 1984).

When the appellate record includes the reporter's and clerk's records, implied findings are not conclusive and may be challenged on the basis of legal and factual sufficiency. BMC Software Belg., 83 S.W.3d at 795. We review the trial court's decision for legal sufficiency of the evidence using the same standards applied in reviewing the evidence supporting a jury's finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827.

When the appellant challenges the legal sufficiency of an adverse finding on an issue on which she did not have the burden of proof, she must demonstrate on appeal that there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). A party attacking the legal sufficiency of an adverse finding on an issue on which she had the burden of proof must demonstrate that the evidence conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

In reviewing factual sufficiency, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. 2900 Smith, Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.-Houston [14th Dist.] 2009, no pet.). When a party challenges the factual sufficiency of the evidence supporting a finding for which she did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5 (Tex. App.-Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.). When a party attacks the factual sufficiency of an adverse finding on which she bore the burden of proof, she must establish that the finding is against the great weight and preponderance of the evidence. Id. We may not pass upon the witnesses' credibility or substitute our judgment for that of the trier of fact, even if the evidence would support a different result. 2900 Smith, Ltd., 301 S.W.3d at 746. If we determine the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence supporting the trial court's judgment; we need not do so when affirming the judgment. Id.
In challenging the sufficiency of the evidence, Locke argues that her apartment was overrun by a roach infestation, which she properly reported, and the apartment complex management failed to remedy the problem within a reasonable time. She also asserts that she paid her rent in a timely manner and gave proper notification that she was terminating her lease. In her view, this evidence establishes that the trial court erred when it determined she breached the lease rather than Briarwood Village.

In making her argument, however, Locke does not view the evidence as required by the legal and factual sufficiency standards of review. Even if we assume for argument's sake that Locke's apartment had a significant roach infestation, the record contains evidence that Briarwood Village promptly addressed the problem and eliminated the infestation. Further, although Locke argues she complied with the terms of the lease and gave proper written notice of termination, there was other evidence in the record, set out above, that she did not. We must presume the trial court, as the trier of fact, resolved these factual disputes against her. The trial court's decision to do so does not render the evidence insufficient. See In re Estate of Parrimore, 2016 WL 750293, at *8. We hold the evidence is legally and factually sufficient to support the trial court's implied findings that Locke breached the lease and Briarwood Village did not. We overrule Locke's issue on appeal.[2]

II. Because Briarwood Village did not file a notice of appeal, we do not consider its request for additional attorney's fees.

In its brief of appellee, Briarwood Village requested that, in addition to affirming the judgment's award of damages against Locke, we award a greater amount of attorney's fees than the amount included in the judgment.[3] In making this request, Briarwood Village seeks to alter the trial court's judgment by obtaining greater relief. Briarwood Village did not, however, file a notice of appeal. Rule 25.1(c) requires a party seeking to alter the trial court's judgment to file a notice of appeal. Tex. R. App. P. 25.1(c). An appellate court may not grant a party who did not file a notice of appeal more favorable relief than the trial court did. Id. Because Briarwood Village did not, we cannot consider its request for additional fees. See Reich & Binstock, L.L.P. v. Scates, 455 S.W.3d 178, 185 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("Although not couched as such, Scates's issue would require us to alter the trial court's judgment because appellate attorney's fees were not awarded in the judgment.").

CONCLUSION

Having overruled Locke's issue on appeal and rejected Briarwood Village's request for additional attorney's fees, we affirm the trial court's judgment.

[1] Gil testified that Locke was charged $298.74 to repair damage to her apartment's carpet; $70 to repaint a wall, and $715.70 for "insufficient notice penalty charges" totaling $1,084.44. The complex deducted a rent credit of $211.65 from that total to determine the amount Locke owed.
[2] Locke also appears to argue that she received ineffective assistance of counsel during the trial of this case. The doctrine of ineffective assistance of counsel does not apply in civil cases unless there is a constitutional or statutory right to counsel. Locke has not cited any authority establishing that she had a right to counsel in this breach-of-contract case. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.-Houston [14th Dist.] 2003, no pet.) ("[I]t is well established that the doctrine of ineffective assistance of counsel does not extend to civil cases.").
[3] The judgment awarded Briarwood Village $1,935 in attorney's fees. The trial court did not award any appellate fees. Despite that, Briarwood Village asks this court to increase the award of attorney's fees to $2,820.


Thursday, November 1, 2018

Affidavit to prove damages found conclusory; default summary judgment reversed and remanded


Tyhan, Inc. d/b/a Auto Fix Unlimited v Cintas Corporation No. 2 , No. 01-18-00027-CV (Tex.App. - Houston [1st Dist.] Oct. 30, 2018) 


In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00027-CV
———————————
TYHAN, INC. D/B/A AUTO FIX UNLIMITED, Appellant
V.
CINTAS CORPORATION NO. 2, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1093315

MEMORANDUM OPINION

Tyhan, Inc., doing business as Auto Fix Unlimited, appeals from a default
summary judgment in favor of Cintas Corporation No. 2. We reverse and remand.

BACKGROUND

Tyhan signed a five-year contract with Cintas for the rental of uniforms and
the provision of associated services. After about two and a half years, Tyhan stopped
paying for Cintas’s goods and services. Cintas sued Tyhan for breach of contract.
Cintas sought past due amounts owed for goods and services rendered, liquidated
damages for the remainder of the contract’s five-year term, and the replacement cost
of lost and damaged items rented to Tyhan.

In response to Cintas’s lawsuit, Tyhan’s president filed a letter on behalf of
the company, which was not represented by counsel in the trial court. On appeal,
both parties characterize this letter as Tyhan’s answer.

Cintas moved for a traditional summary judgment on its cause of action for
breach of contract. In support, Cintas attached the parties’ contract, four invoices, an
affidavit by the general manager of the location that serviced the contract, and an
affidavit by its attorney as to reasonable and necessary attorney’s fees incurred in
prosecuting the suit.

Tyhan filed a verified response to Cintas’s summary-judgment motion, in
which its president represented that it had not yet retained counsel, stated that Cintas
had not served it with a copy of the summary-judgment motion, and argued that
genuine issues of material fact precluded summary judgment.

The trial court held a hearing on Cintas’s summary-judgment motion. Neither
Tyhan’s president nor any other representative of Tyhan attended the hearing.
The trial court entered a final summary judgment in Cintas’s favor. The
judgment awarded Cintas $11,230.16 for unpaid invoices, $34,621.43 in liquidated
damages, $2,823 for lost or damaged items, pre- and post-judgment interest, costs,
and attorney’s fees.

Tyhan filed a verified motion for new trial. In its motion, Tyhan’s president
represented that the company did not receive notice of the summary-judgment
hearing and that it had a meritorious defense to Cintas’s suit. Tyhan’s new-trial
motion was denied by operation of law.

Tyhan subsequently retained counsel, who filed this appeal.

[...]

II. Summary Judgment

Tyhan challenges the evidence the trial court relied on in awarding the default
damages. In its motion for summary judgment, Cintas relied on the affidavit of one

of its general managers, John Ayers, for proof of its damages. Tyhan asserts that this
affidavit is conclusory and thus no evidence.

A. Standard of review and applicable law

We review summary judgments de novo. City of Richardson v. Oncor Elec.
Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). Traditional summary judgment is
proper when the material facts are not disputed and the moving party is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Oncor, 539 S.W.3d at 258–59.
If the movant seeks summary judgment on its own affirmative claim for relief, it
must conclusively prove all elements of its cause of action. Havlen v. McDougall,
22 S.W.3d 343, 345 (Tex. 2000). The trial court cannot grant summary judgment if
the movant’s summary-judgment proof is legally insufficient. See Amedisys, Inc. v.
Kingwood Home Health Care, 437 S.W.3d 507, 512 (Tex. 2014).

A conclusory affidavit is legally insufficient to raise a genuine issue of
material fact on summary judgment, let alone conclusively prove a fact. See
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Prime Prods. v. S.S.I.
Plastics, 97 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). A
witness’s affidavit is conclusory when he offers nothing more than unexplained
conclusions or opinions by failing to specify the facts on which his conclusions or
opinions rest. See Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d
380, 389 n.32 (Tex. 2008); Brookshire Katy Drainage Dist. v. Lily Gardens, 333
S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

B. Analysis

Ayers averred that Tyhan defaulted on the contract by failing to make its
weekly rental payments. He stated that the contract had a term of five years and that
Tyhan owed a balance of $11,230.16. Ayers did not explain how he calculated the
balance or attach records accounting for the tally. Cintas attached four invoices to
its summary-judgment motion. They state total amounts of $64.56, $184.84,
$171.29, and $178.24, and are dated February 21, 2017, February 21, 2017,
December 2, 2016, and November 10, 2016 respectively. They do not substantiate
the outstanding balance of $11,230.16 stated by Ayers in his affidavit, which does
not even refer to these four invoices.

Ayers further testified that Tyhan owed $34,621.43 under the liquidated damages
provision of the contract. This provision obligates Tyhan to pay “the
greater of 50% of the average weekly invoice total multiplied by the number of
weeks remaining in the unexpired term, or buy back all garments and other products
allocated to [Tyhan] at the then current replacement values” if Cintas terminates the
contract for cause. Ayers testified that Cintas terminated the contract with 139 weeks
of its term remaining and stated that the weekly invoice amount was $498.15. Thus,
the basis for his calculation is clear: 139 x $498.15 x .5 = $34,621.43. Ayers,
however, did not explain how the $498.15 average weekly invoice amount was
calculated or attach records substantiating this average. Ayers’s average weekly
amount cannot be derived from the four invoices attached to Cintas’s summary judgment
motion.

Finally, Ayers testified that Tyhan owes $2,823 under a provision of the
contract requiring Tyhan to “pay the then current replacement values” for lost or
damaged items. Ayers, however, neither identified the lost or damaged items nor
itemized the current replacement values for them.

Ayers’s statements as to the balance owed on the contract, liquidated
damages, and replacement costs each suffer from the same essential flaw: they fail
to provide the underlying factual basis for the amounts claimed. His affidavit
therefore is conclusory and is no evidence of Cintas’s damages. See Brownlee, 665
S.W.2d at 112 (affidavit that stated contract was modified but failed to specify the
time, place, and exact nature of modification was conclusory); see, e.g., Brown v.
Mesa Distribs., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(affidavit that stated $13,000 was owed under lease but didn’t provide factual
support or additional evidence showing how that figure was calculated was
conclusory). Accordingly, we hold that the proof of damages is legally insufficient
to support the amount awarded. Because Cintas’s proof of damages is legally
insufficient, the trial court erred in granting summary judgment. See Brownlee, 665
S.W.2d at 112; Prime Prods., 97 S.W.3d at 637.

III. Undecided Issues

Tyhan also contends that the trial court erred in granting summary judgment
on the issue of liquidated damages because the record raises a genuine issue of
material fact as to their amount and in awarding attorney’s fees because the evidence
of fees is legally insufficient. We need not decide these additional issues, given our
reversal of the trial court’s judgment on other grounds. See TEX. R. APP. P. 47.1.

CONCLUSION

We reverse the judgment of the trial court and, as Tyhan contests liability and
the alleged damages are unliquidated, we remand this cause for a new trial on both
liability and damages. See TEX. R. APP. P. 44.1(b); Pointe W. Ctr. v. It’s Alive, Inc.,
476 S.W.3d 141, 150 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.

Opinion issued October 30, 2018

Wednesday, October 31, 2018

Pleadings are not evidence and are not viable to counter a no-evidence motion for summary judgment

AMIR A. CHAMIE V. MEMORIAL HERMANN HEALTH SYSTEM, NO. 14-17-00354-CV (Tex.App. - Houston [1st Dist.] Sep. 25, 2018)
Pleadings generally are not proper summary judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971); Nguyen v. Citibank N.A., 403 S.W.3d 927, 932 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). Chamie offers no explanation as to why this court should treat his pleadings as summary judgment evidence, and we discern no reason to do so; the pleadings simply contain Chamie's allegations in this case and are not evidence. Likewise, we cannot consider the attachments to Chamie's brief, as they are not a part of the appellate record. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 n.2 (Tex. App.-Houston [14th Dist.] 2008, no pet.); Gibson v. Grocers Supply Co., 866 S.W.2d 757, 760 n.4 (Tex. App.-Houston [14th Dist.] 1993, no writ). And lastly, the table of contents that Chamie attached to his response as an exhibit did not present any actual evidence; it was merely a list of documents that are not in the record.
The record demonstrates that Chamie did not file any evidence in response to appellees' no-evidence motion for summary judgment, much less any evidence that appellees' conduct caused Chamie's alleged injuries. Accordingly, the trial court did not err in granting the motion.[4] See Tex. R. Civ. P. 166a(i); Doherty v. Old Place, Inc., 316 S.W.3d 840, 845 (Tex. App.-Houston [14th Dist.] 2010, no pet.). We therefore overrule Chamie's first issue.

Affirmed and Opinion filed September 25, 2018.
 
In The
Fourteenth Court of Appeals 

NO. 14-17-00354-CV

AMIR A. CHAMIE, Appellant
V.
MEMORIAL HERMANN HEALTH SYSTEM, D/B/A UNIVERSITY
PLACE RETIREMENT HOME, AND CROTHALL HEALTHCARE, INC.,
Appellees

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2013-32676


Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

OPINION

MARTHA HILL JAMISON, Justice.

In this slip-and-fall, personal injury case, appellant Amir A. Chamie appeals from the trial court's grant of no-evidence summary judgment favoring appellees Memorial Hermann Health System, d/b/a University Place Retirement Home, and Crothall Healthcare, Inc. In two issues, Chamie contends that the trial court erred in granting summary judgment because he presented more than a scintilla of evidence to support the challenged element of his claims and the appellees' motion was filed prematurely. We affirm.

Background

Chamie alleged that he slipped and fell in a liquid substance left on the floor while visiting his grandmother in a nursing home. Memorial Hermann owns the nursing facility at which Chamie alleges he was injured. Crothall provides janitorial services at the facility. Chamie sued both companies, asserting negligence under a theory of premises liability.[1]

Memorial Hermann and Crothall filed a joint no-evidence motion for summary judgment asserting that Chamie could not produce evidence to support the causation element of any of his claims.[2] Chamie filed a two-page response to the motion, in which he purported to attach an appendix; however, the only document attached to the response was a single-sheet table of contents. This table of contents lists four exhibits, but no exhibits are attached to the response or otherwise appear in the record. Chamie insists in his appellate brief that he filed the exhibits with the trial court. Memorial Hermann and Crothall insist that he did not. Chamie requested two supplemental clerk's records from the trial court but neither contains the exhibits Chamie claims he attached to the response. Chamie has attached exhibits to his appellate brief that purport to be the exhibits in question.

Appellees filed their no-evidence motion on March 15, 2017, twelve days before the end of the discovery period set in the trial court's docket control order, and set the motion for oral hearing on May 1, 2017, over a month after the expiration of the discovery period. The trial court granted the motion, and this appeal followed.

Summary Judgment

In his first issue, Chamie contends the trial court erred in granting summary judgment because he presented more than a scintilla of evidence to establish that appellees' conduct caused his injuries.[3] To defeat a no-evidence motion for summary judgment, the responding party must present evidence raising a genuine issue of material fact supporting each element contested in the motion. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When reviewing a trial court's grant of such a motion, we consider the evidence presented in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. We review a no-evidence summary judgment de novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004).

In support of his assertion that appellees' conduct caused his alleged injuries, Chamie cites (1) his own pleadings, (2) exhibits he attached to his appellate brief that do not appear in the record, and (3) the appendix table of contents that he attached to his summary judgment response. For the reasons stated below, none of these items constituted proper summary judgment evidence.

Pleadings generally are not proper summary judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971)Nguyen v. Citibank N.A., 403 S.W.3d 927, 932 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). Chamie offers no explanation as to why this court should treat his pleadings as summary judgment evidence, and we discern no reason to do so; the pleadings simply contain Chamie's allegations in this case and are not evidence. Likewise, we cannot consider the attachments to Chamie's brief, as they are not a part of the appellate record. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 n.2 (Tex. App.-Houston [14th Dist.] 2008, no pet.)Gibson v. Grocers Supply Co., 866 S.W.2d 757, 760 n.4 (Tex. App.-Houston [14th Dist.] 1993, no writ). And lastly, the table of contents that Chamie attached to his response as an exhibit did not present any actual evidence; it was merely a list of documents that are not in the record.

The record demonstrates that Chamie did not file any evidence in response to appellees' no-evidence motion for summary judgment, much less any evidence that appellees' conduct caused Chamie's alleged injuries. Accordingly, the trial court did not err in granting the motion.[4] See Tex. R. Civ. P. 166a(i); Doherty v. Old Place, Inc., 316 S.W.3d 840, 845 (Tex. App.-Houston [14th Dist.] 2010, no pet.). We therefore overrule Chamie's first issue.

Time for Discovery

In his second issue, Chamie asserts that the trial court erred in granting summary judgment because appellees' motion was filed prematurely. Chamie complains specifically that appellees' motion was filed before the discovery deadline set in the trial court's docket control order.[5]

Texas Rule of Civil Procedure 166a(i) provides that a party without the burden of proof may move for a no-evidence summary judgment after an adequate time has passed for discovery. Tex. R. Civ. P. 166a(i). By granting appellees' motion, the trial court implicitly found that an adequate time for discovery passed before its consideration of the motion. See generally McInnis v. Mallia, 261 S.W.3d 197, 200-01 (Tex. App.-Houston [14th Dist.] 2008, no pet.). We review the trial court's determination that there has been an adequate time for discovery on a case-by-case basis, under an abuse-of-discretion standard. Id. at 201.
The docket control order in this case contained two relevant provisions: (1) the discovery period ended March 27, 2017 and (2) no-evidence motions for summary judgment could not be heard before April 3, 2017. Chamie argues that, pursuant to the comment to Rule 166a(i) and this court's precedent in McInnis, the trial court could not consider a motion filed earlier than March 27, 2017.[6] We disagree.
The pertinent date for determining whether a no-evidence motion was made prematurely is not the date on which the motion was filed but the final date on which the motion was presented to the trial court for ruling. E.g., Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 404 (Tex. App.-Houston [1st Dist.] 2017, no pet.)McInnis, 261 S.W.3d at 200. Here, although the motion was filed on March 15, 2017, twelve days before the end of the discovery period set by the trial court, the appellees did not present the motion to the trial court for ruling until May 1, 2017, over a month after the expiration of the discovery period and during a time period specifically provided in the docket control order. The trial court did not err merely by considering the motion for summary judgment during this time period.[7]

Chamie additionally argues under this issue that the trial court erred in granting summary judgment when a continuance of the trial date was granted shortly before the court ruled on the summary judgment motion. Chamie filed an unopposed motion for a continuance of the trial setting on March 30, 2017; however, he did not request a continuance of the hearing on the motion for summary judgment. The record does not contain an express ruling on Chamie's motion for continuance, but it does contain an order, dated April 12, 2017, resetting the trial for the two-week trial docket beginning October 9, 2017. This order explicitly stated that "[a]ll previous pre-trial deadlines remain in effect, unless changed by the court." The order therefore did not reset any date or deadline other than the trial setting itself. The trial court did not abuse its discretion in ruling on the motion for summary judgment at the time it did.
Finding no merit in any of Chamie's arguments, we overrule Chamie's second issue.
We affirm the trial court's judgment.

[1] At one point in the proceedings, the trial court dismissed Chamie's claims because he did not file an expert report as required for healthcare liability claims. Concluding that Chamie's claims are not, in fact, healthcare liability claims, we reversed and remanded the case for further proceedings. Chamie v. Mem'l Hermann Health Sys., No. 14-14-00213-CV, 2015 WL 4141106 (Tex. App.-Houston [14th Dist.] July 9, 2015, no pet.) (mem. op.).
[2] Memorial Hermann contends on appeal that in the motion Memorial Hermann also asserted Chamie could produce no evidence of damages, but we need not determine whether Memorial Hermann is correct to resolve the issues in this appeal.
[3] The parties disagree as to whether Chamie was an invitee or a licensee on the Memorial Hermann premises, but there is no disagreement that Chamie's pleaded claims require proof of causation and that appellees challenged at least this element in their no-evidence motion. See Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015) (listing elements for general negligence cause of action); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99-100 (Tex. 2000) (listing elements for invitee premises liability claim); State v. Williams,940 S.W.2d 583, 584 (Tex.1996) (listing elements for licensee premises liability claim).
[4] Chamie does not assert that the trial court's record shows that he filed the evidence and that the court clerk below simply failed to include it in the record.
[5] We presume without deciding that Chamie preserved this issue for appellate review. To complain that there has been inadequate time for discovery under Rule 166a(i), a nonmovant must file either an affidavit explaining the need for further discovery or a verified motion for continuance. See Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d 640, 647 (Tex. 1996)Lindsey Constr., Inc. v. AutoNation Fin. Servs., LLC, 541 S.W.3d 355, 360 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
[6] The comment to rule 166a(i) states in part: "[a] discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before." Tex. R. Civ. P. 166a cmt.

[7] We further note that by the time of the hearing on the motion, this simple slip-and-fall case had been back in the trial court for 585 days since being remanded after a prior appeal and had gone through two separate discovery periods under two different docket control orders. Chamie had adequate time for discovery before the no-evidence motion was presented. See generally McInnis, 261 S.W.3d at 201 (setting forth factors).




Friday, October 19, 2018

Mandamus Petition to attack a void order: What does it take? – More than a void order, according to Houston Court of Appeals

Fourteenth Court of Appeals says that mandamus relief cannot be granted even if the challenged order is void if the argument was not first presented to the trial court and overruled. In re Total Petrochemicals & Refining USA, Inc. No. 14-18-00843-CV (Tex.App. - Houston [14th Dist.] Oct. 11, 2018) (orig. proc.). Mandamus relief denied. So ruled, party seeking mandamus relief is free to try again later.

IN RE TOTAL PETROCHEMICALS & REFINING USA, INC., Relator.

No. 14-18-00843-CV.
Court of Appeals of Texas, Fourteenth District, Houston.
Memorandum Opinion filed October 11, 2018.


164th District Court, Harris County, Texas, Trial Court Cause No. 2016-88245-A.
ORIGINAL PROCEEDING WRIT OF MANDAMUS.
Petition for Writ of Mandamus Denied.
Panel consists of Justices Donovan, Wise, and Jewell.

MEMORANDUM OPINION

PER CURIAM.

On September 27, 2018, relator Total Petrochemicals & Refining USA, Inc. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (West Supp. 2017); see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Alexandra Smoots-Thomas, presiding judge of the 164th District Court of Harris County, to vacate her May 24, 2018 order granting "Plaintiff's Second Motion for Reconsideration of Defendant Total Petrochemicals & Refining USA, Inc.'s Motion for Summary Judgment" and denying "Defendant Total Petrochemicals & Refining USA, Inc.'s Motion for Summary Judgment."

Relator's petition presents one argument—that this order is void because it was signed after the trial court's plenary jurisdiction had expired.

Our court may not consider this argument because the record does not show that it has been presented to and ruled on by the trial court.[1] Accordingly, we deny relator's petition for writ of mandamus.[2]
[1] Arguments not presented to the trial court will not be considered in the review of a petition for writ of mandamus. See In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding). "It is well established that arguments not presented to the trial court will not be considered in a petition for writ of mandamus." In re RH White Oak, LLC, No. 14-15-00789-CV, 2016 WL 3213411, at *9 (Tex. App.-Houston [14th Dist.] June 9, 2016, orig. proceeding) (mem. op.) (quoting In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex. App.-Dallas 2008, orig. proceeding)); see also In re Jindal Saw Ltd., 264 S.W.3d 755, 767 (Tex. App.-Houston [1st Dist.] 2008, orig. proceeding) (concluding that arguments asserted in mandamus petition could not be considered because they were not first presented to trial court). This rule—that arguments must first be presented to the trial court—applies even to arguments that the trial court lacked subject matter jurisdiction. See In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding). Generally, mandamus is not available to compel an action which has not first been demanded and refused. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991).

[2] This opinion does not preclude relator from filing another petition for writ of mandamus, if necessary, after relator has presented its argument to the trial court and the trial court has ruled.


Friday, September 21, 2018

Does blocking a neighbor's lakeside view support a nuisance claim?

APPEALING INJUNCTION IN UNAPPEALING VISTAS LAWSUIT 
OVER BOATHOUSE 
Robert Gulledge and Diana Gulledge v. Warren Wester and Theodore Sullivan, 
No. 01-17-00488-CV (Tex.App.- Houston [1st Dist.] Aug 28, 2018)



Opinion issued August 28, 2018

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00488-CV
———————————
ROBERT GULLEDGE AND DIANA GULLEDGE, Appellants
V.
WARREN WESTER AND THEODORE SULLIVAN, Appellees
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 16-CV-1022

O P I N I O N

Opinion issued August 28, 2018.

Timothy A. Beeton, for The Gulledge Family Living Trust, Appellant.
George W. Vie, III, for Theodore Sullivan, Appellant.
Stakely McConnell, Timothy A. Beeton, for Robert and Diana Gulledge, Appellant.
Christin L. Grant, David M. Feldman, Cristen David Feldman, George W. Vie, III, for Warren Wester, Appellee.

On Appeal from the 10th District Court, Galveston County, Texas, Trial Court Case No. 16-CV-1022.
Panel consists of Justices Higley, Brown, and Caughey.

OPINION

HARVEY BROWN, Justice.

In this negligent nuisance case, Clear Lake Shores residents, Robert and Diana Gulledge, were permanently enjoined from finishing construction of a second story deck on their boathouse after two neighbors complained that the tall structure would block their water views. The Gulledges appeal, contending that there is legally and factually insufficient evidence to support the nuisance claim and injunction. Alternatively, they contend that the injunction is broader than the pleadings and evidence permitted.

We reverse and render.

Background

Roughly a dozen homes are located on Blue Point Road, a waterfront community in Clear Lake Shores. 

The homes are located in a "unique area" of the Clear Lake channel, where the water is particularly deep and provides direct access to the Gulf of Mexico for large boats heading to sea. Through a licensing process with the State, residents can construct boathouses in the channel that function as garages for their boats. These combined features make the community attractive to people who own large boats and want to store them in attached boathouses. There are no other neighborhoods nearby with such deep-water access.

One expert testified that it is "very difficult to find water this deep up to a residential lot. . . . It's a very limited commodity, and it's very valuable." The expert explained that there are only two places "in the Galveston Bay system" where someone can store boats 40-feet and longer behind their homes. According to the expert, there is "a relationship between the depth of the water and what size boats you might expect people would be able to utilize or berth behind their houses on Blue Point Road." And "if it's a big boat, it's going to require a big boathouse." Another witness testified about the Blue Point subdivision, "You're not limited to the size [boat] that you could bring in."

Thus, the ability to store a large boat at your home rather than at a marina is one of the attractions of the Blue Point subdivision.

There are also aesthetic features that make the neighborhood attractive to homeowners. To varying degrees, community residents have views of the channel, Seabrook Shipyard, and the nearby Kemah bridge. From their properties, they can watch local boat parades and the "very busy" passing boat traffic entering and exiting the channel.

The Blue Point subdivision homeowners are bound by various community restrictions, including a restriction that home structures cannot be placed within five feet of the property lines or the waterline. But there are no community or city restrictions regarding the height of residents' boathouses. The view of the channel and other features is impacted by the size and design of neighboring boathouses. Many are close to 20 feet tall, and at least one is 25 feet tall.[1] They have varying lengths to accommodate the boats being stored, and one boathouse is 81 feet long. Some boathouses have an open design, while others are enclosed. Without community restrictions, Blue Point residents do not have complete control over their water views, and the size and type of boathouse their neighbors chose to construct has the potential to diminish their water views.

The homes on Blue Point Drive run north-south, and the channel is to the east of the homes. In 2011, Robert and Diana Gulledge bought a home between the homes of Warren Wester and Theodore Sullivan. Their homes, relative to one another, are shown on the diagram below:
The lots are relatively narrow. Most are 50 feet wide, but Sullivan's is 70 feet wide. Like many of their neighbors, the Gulledges had a boathouse, which held a 40-foot boat. In 2015, they bought a larger, 55-foot Azimut yacht and decided to construct a larger boathouse to store it. Their design called for a 60-feet long and 20-feet wide boathouse with a height of 25 feet above mean tide. This height was necessary to provide sufficient clearance for the Azimut.[2]

The Gulledges submitted a construction application to the State's General Land Office. This was required because the community's boathouses are not located on private lands; they are located on State land. The GLO approves plans and grants a coastal easement that leases the State's submerged land for use as a boathouse. The GLO reviews a proposed boathouse's footprint but not its height. Thus, the GLO reviews a boathouse's length into the channel for navigation purposes but does not review its aesthetic impact. As part of the permitting process, GLO notified the Gulledges' neighbors of their application and offered an opportunity to object.

Sullivan objected to the proposed boathouse's original location, asserting that it was too close to his property line and made access to his boathouse more difficult. After meeting with the GLO and Sullivan, the Gulledges agreed to move their proposed boathouse closer to the Wester property to the south and to knock down their existing boathouse, which was only two years old at the time. Sullivan agreed to withdraw his objection.

After they submitted their original construction plans, the Gulledges noticed that some other boathouses in Galveston County (but not in the Blue Point subdivision) had covered rooftop decks. Robert Gulledge testified that a deck on top of their boathouse would provide an area to socialize with family and friends and a clearer view of the boats coming down the channel. The Gulledges revised their plans to include a deck 25 feet above the water level, with an aluminum-covered roof at least 10 feet above the deck.[3]The second story, like the first, would not be enclosed, but it would have a spiral staircase, side railings, "minimal" lighting, diagonal braces, and a small cargo lift without sides. The roof over the 1200-square-feet deck would be supported by piers, and the new height of the boathouse would be 39.5 feet instead of the original 25-feet height.

Wester and Sullivan objected to the redesign, asserting that the second story would block their view of the waterway. They testified that they had no objection to a boathouse that was comparable in height to their own—around 17 feet high—or to the first design for a 25-foot boathouse. The GLO informed Wester and Sullivan that it does not regulate boathouse height.[4] The GLO approved the Gulledges' boathouse footprint and construction began.

After the Gulledges obtained the GLO's authorization and began the boathouse construction, Wester and Sullivan initiated the underlying suit, asserting claims for intentional private nuisance, negligent private nuisance, and invasion of privacy. Wester and Sullivan focused their suit on and limited their request for injunctive relief to the second story.

At trial, Wester and Sullivan each testified that the Gulledges' proposed boathouse blocked the water view from their property and that the boathouse was significantly larger than any other in the area. Wester and Sullivan each also stated— and photographs confirm—that the second story deck allows its occupants to look down into their backyards. Additionally, Wester testified about some adverse health effects he attributes to the presence of the oversized boathouse, including higher blood pressure.
Wester and Sullivan also presented testimony from two other residents who agreed that the Gulledges' boathouse was unlike the others in the neighborhood. One testified that, if the Gulledges had built that boathouse next to his property, he would have moved. The other testified that the Gulledges' boathouse blocks his water view as well.

A local realtor testified that the Gulledges' boathouse would decrease the value of Wester's and Sullivan's properties because of the diminished view, but he did not quantify the difference in value. He also testified that it would be harder to sell Wester's and Sullivan's properties because the Gulledges' boathouse was "out of character."

The Gulledges presented counter testimony from two neighbors that they were not bothered by the Gulledges' boathouse. They also presented the testimony of another realtor, who testified that the Gulledges' boathouse would benefit the value of the neighborhood properties by showing prospective buyers the potential to build larger boathouses in the community.

Wester and Sullivan assert that the second story of the Gulledges' boathouse obstructs their water view. The Gulledges' boathouse does not have siding; therefore, when empty, it only partially blocks the view the first 25 feet above water, but there would be additional view obstruction due to the planned railing, diagonal braces, and staircase leading to the second-story deck, as well as the proposed copper roof and gutter in the upper portion of the two-story structure and the piers that support the nearly 40-feet tall structure. When the Gulledges' yacht is docked, the view would be more obstructed on the lower level, though the upper deck level would be unaffected.

But it is undisputed that each Blue Point resident's view is blocked to varying degrees by their neighbors' boathouses. The Sullivan's boathouse is 17 feet tall and has solid-wood siding; therefore, it completely blocks the Gulledges' north-eastern view for the first 17 feet above water level. Robert Gulledge's brother, Jed, owns land in the community and has a boathouse that is roughly 26 feet tall and 60 feet long. Another neighbor, Williams Keys, has a boathouse that is 81 feet long. And, to the extent some of the boathouses are not enclosed, when their owners have their boats docked, their neighbors' views are obstructed by the docked boats. Moreover, the Gulledges' yacht is not the only large boat in the neighborhood; at least two other homeowners have yachts.

Additional view obstruction is caused by landscaping choices. For example, Sullivan has a number of trees and extensive vegetation on his land that partially obstruct the Gulledges' view.
Still more potential view obstruction may result from the homes themselves. The community restrictions permit residents to build two-story homes as close as five feet from their neighbor's property line and the waterline. A two-story house[5] that is five feet from the waterline would partially obstruct the water views from the neighboring properties.

These visual obstructions, however, are less significant from each owner's second story. All three homeowners involved in this suit—the Gulledges, Sullivan, and Wester—have two-story homes, and their second stories are roughly 17 feet high and have large windows to provide a view of the channel. According to Robert Gulledge, each owner can see passing ships and the Kemah bridge from their second stories even when his yacht is parked in the boathouse because of the difference between his boat height (21.5 feet) and the deck floor (25 feet) and because of the absence of siding on his boathouse.

The jury found that the Gulledges did not intentionally cause a nuisance and that the boathouse did not invade Wester and Sullivan's privacy. The jury found the Gulledges liable for negligent nuisance but awarded no past damages. After trial, the trial court rendered a judgment for negligent nuisance, including a permanent injunction. The permanent injunction limited the roof height of the Gulledges' boathouse to 25 feet above mean high tide and prohibited use of the deck for social gatherings.

Standard of Review

In a legal-sufficiency review, the court determines whether reasonable and fair-minded people could arrive at the factfinder's conclusion, after considering all evidence that supports the verdict and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will conclude that the evidence is legally insufficient to support the finding only if (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving 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 mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Id. at 810. We review the evidence in the light most favorable to the judgment. Id. at 822.

Negligent Nuisance

In their first issue, the Gulledges challenge the legal sufficiency of the evidence supporting the negligent nuisance claim.

A. Definition of nuisance

The Texas Supreme Court recently undertook the task of clarifying private nuisance law. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016). The Court explained that the law of "nuisance" seeks to balance a property owner's right to use his property "as he chooses in any lawful way" against his duty to refrain from using it in a way that "injure[s] another." Id. at 590-91 (quoting Gulf, Colo. & Santa Fe Ry. Co. v. Oakes, 58 S.W. 999, 1000 (Tex. 1900)). With that principle in mind, the Court defined "nuisance" as "a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Id. at 593 (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).

According to the Crosstex Court, a nuisance does not refer to a cause of action but instead to "the particular type of legal injury that can support a claim or cause of action seeking legal relief." Id. at 594. "The law of nuisance recognizes that certain injuries to a person's right to the `use and enjoyment of property' can . . . constitute a form of legal injury for which a legal remedy will be granted." Id. at 594.
The Court explained that "the condition the defendant causes may interfere with a wide variety of the plaintiffs' interests in the use and enjoyment of their property. It may, for example, cause physical damage to the plaintiffs' property, economic harm to the property's market value, harm to the plaintiffs' health, or psychological harm to the plaintiffs' `peace of mind' in the use and enjoyment of their property." Id. at 596. In fact, the Court explained, "virtually any disturbance of the enjoyment of the property may amount to a nuisance." Id. at 596 (quoting WILLIAM L. PROSSER, LAW OF TORTS § 90 (3d ed. 1964)).
But, importantly here, to rise to the level of nuisance, the interference must satisfy two other requirements: it must (1) be "substantial" in light of all the circumstances and (2) cause "discomfort or annoyance" that is "unreasonable." Id. at 595.[6]

The first limitation—the substantiality requirement—"sets a minimum threshold that confirms that the law `does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of every day life in a civilized community even from conduct committed with knowledge that annoyance and inconvenience will result.'" Id. at 595 (quoting W. PAGE KEETON ET AL., PROSSER & KEETON ON TORTS § 86 (5th ed. 1984)). The Court emphasized that foul odors, dust, noise, and bright lights must be "sufficiently extreme" to constitute a nuisance. Id. at 595 n.8.[7] In determining whether the interference is substantial, a court may review whether the use impairs the adjoining property's market value. Id. at 595. The substantiality test is fact-specific and includes, "for example, the nature and extent of the interference, and how long the interference lasts or how often it recurs." Id. at 595-96.

The second limitation is that the "discomfort or annoyance" must be unreasonable—i.e, that `"the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation." Id. at 596 (quoting RESTATEMENT (SECOND) OF TORTS § 829A).[8] The Court emphasized that the unreasonableness inquiry focuses on the conduct's effect, not the conduct itself, id. at 596-99, and that the test is an objective one that views the effect from the standpoint of a "persons of ordinary sensibilities." Id. at 596, 599-600. This reasonableness "determination requires balancing a wide variety of factors, depending on the specific facts." Id. at 596; see id. at 600-01 ("To establish a cause of action for which the law provides a right to relief, . . . there must not only be an injury or loss but it must have been occasioned by the commission of a legal wrong, that is, violation of legal right and a breach of legal duty." (internal quotations and citations omitted)).

Finally, the Court set forth a liability standard of care. Id. at 604. There are three classifications for private nuisance: intentional nuisance, negligent nuisance, and strict-liability nuisance. Id. at 602, 604-609. A negligent nuisance "claim is governed by ordinary negligence principles." Id. at 607. Accordingly, Wester and Sullivan were required to prove that the Gulledges owed them a duty, they breached the duty, and Wester and Sullivan suffered damages as a proximate cause of the breach. See id. In addition, Wester and Sullivan had to prove that the Gulledges' "negligent conduct caused a nuisance, which in turn resulted in [Wester's and Sullivan's] damages." Id.Thus, "a nuisance may result from `a failure to take precautions against a risk apparent to a reasonable man.'" Id. (quoting PROSSER, LAW OF TORTS § 88).

B. Wester and Sullivan did not show a substantial interference that unreasonably affects their use and enjoyment of their property

The Gulledges contend that a view impairment cannot support a nuisance claim. On the other hand, Wester and Sullivan maintain that Crosstex left the issue of whether a nuisance exists to the jury. Id. at 609 (observing that questions of whether interference with use and enjoyment of property is "substantial" or "the effects of such an interference on the plaintiffs are unreasonable" are generally "questions of fact for the jury to decide").[9]

We conclude that it is unnecessary for us to determine whether Texas law, post-Crosstex, erects a bright-line barrier against all view-impairment nuisance claims because there is legally insufficient evidence of a substantial inference that unreasonably affects Wester's and Sullivan's use and enjoyment of their land. See id. at 609 ("A court may decide the issues as a matter of law only if the underlying facts are undisputed or, in light of all the evidence, reasonable minds cannot differ." (internal quotations and citations omitted)). While the witnesses differ in their conclusions about the impact of the Gulledges' boathouse, the photographs show the extent of the visual impairment, and the testimony regarding the neighborhood and other landowners' relative conduct is undisputed. We turn to applying the undisputed facts to the Crosstexfactors for measuring the impact of the boathouse's interference.

First, we examine "the nature of the interference." Id. at 609. There was no invasion onto the plaintiffs' property. Unlike cases where light, odor, or smoke invade an adjoining property, the effect of the Gulledges' conduct was not on the plaintiffs' land itself. Even if view impairment could potentially have economic or psychological effects, Wester and Sullivan did not present any expert testimony quantifying any economic harm. And the jury, in its response to the damages jury question, rejected a psychological harm claim: it found that Wester and Sullivan did not suffer any "damages for annoyance or discomfort, caused by a nuisance that impairs the use and enjoyment of real property."

Second, we consider "the character and nature of the neighborhood, each party's land usage, and social expectations" as well as "the extent to which others in the vicinity are engaging in similar conduct." Id. at 600. These factors underscore that the record presents no substantial and unreasonable interference. The unique characteristics of the subdivision and the channel show that the use of large boathouses (which impair water views) is not unexpected. There were no deed restrictions, city regulations, or GLO provisions that regulated the sizes of boathouses. The subdivision landowners purchased their homes with knowledge that city regulations permitted homes to be built higher than the Gulledge's boathouse and as close as five feet from the water, which would create an even larger visual impairment than the Gulledges' boathouse. Wester and Sullivan knew that the channel was deep and led to Galveston Bay, making it a prime location for yachts. Indeed, they purchased their properties, in part, so they could watch parades of yachts and other boats. And if the landowners owned and temporarily docked a yacht outside their homes, the moored boats would block an adjoining neighbor's view of the channel. If the yacht owners wanted to store their boats adjacent to their own property, as Wester and Sullivan do for their boats, they would need comparatively large boathouses to store them. Indeed, Wester and Sullivan have boats and boathouses that would be viewed by many as large. Other landowners had yachts even longer than the Gulledges' new yacht, and boathouses are the one constant feature for all neighboring homes. Thus, social expectations were that homeowners could purchase the lots with the plan to store yachts there in their accompanying boathouses. The vegetation, particularly tall trees, creates additional visual obstructions. And the narrow lot size and resulting density, as well as the close proximity of the homes to their boathouses, add even more visual obstructions and present an obvious risk of additional visual obstructions. As noted, Wester and Sullivan do not challenge all these present visual obstructions to their view. They instead challenge the open-sided second story of the Gulledges' boathouse. Considering the parties' reasonable expectations and the already present view impairment, this record presents no evidence that the second story of the boathouse caused a substantial interference that unreasonably affected what Wester and Sullivan could and should have expected.

The "defendant's motive" is another factor for determining whether any interference is substantial or its effects unreasonable. Id. The jury rejected the claim of intentional interference. And the undisputed evidence showed that the Gulledges took some steps to minimize the visual obstructions. First, they moved the boathouse to accommodate Sullivan. Then, they elected not to add wooden siding so as to minimize the visual impairment caused by the boathouse. Next, they designed other features, such as the handrails, cargo elevator, and staircase, to minimize the visual obstruction caused by the second story. Short of not erecting a cover or handrails for a deck, Wester and Sullivan have not identified anything that could be done to minimize the visual obstruction created by a second-story deck.

Finally, we examine the extent of the interference and how long it lasts or how often it reoccurs. Id. at 595-96. The Gulledges testified that they intend to dock their boat at their Blue Point residence three-to-four months annually, so the full extent of the obstruction will last less than eight or nine months annually. Regardless of its height, the Gulledges' boathouse does not impair Wester's and Sullivan view looking immediately east to the ship channel from their land. It does, however, impair their view if they look to the direction where the Gulledges' boathouse stands (i.e., if Wester looks to the northeast and Sullivan looks to the southeast). But the obstruction created by the Gulledges' boathouse's second story is only partial; while impaired, photographs show that residences can see through the open-sided second story of the boathouse. In contrast, the Sullivan's boathouse obstructs the view for the first 17 feet even more than the Gulledges' boathouse because its sides are covered with solid wood, while the Gulledges' boathouse has no siding. The Gulledges' boathouse is a partial—not total—visual obstruction. Bob Randall, an architect who designed the boathouses for Wester, Sullivan, and the Gulledges, testified that the Gulledges' boathouse is "two floating planes supported by wood structure piles that are 70 feet long. Architecturally the roof plane and the deck plane are separate. And approximately 80 percent of that side area is open so that one can view through the structure. It does not have a mansard roof or an appendage hanging down or wall-type that restricts the view corridor."

Wester and Sullivan argue that, because they presented multiple people in the neighborhood to testify that the Gulledges' boathouse would disturb their sensibilities, they have presented evidence in support of this element of their negligent nuisance action. But this argument overlooks the Crosstex Court's holding that, to rise to the level of a nuisance, the defendant's conduct must substantially interfere with and unreasonably affect the use and enjoyment of property. See id. at 593-94. Those two requirements are not satisfied on this record, given that the second story is open with only the supporting structural beams and the narrow deck and roof-line planes obstructing the views.

Finally, Wester and Sullivan argue that their negligent nuisance claim is supported by the manner in which the Gulledges obtained permits from the GLO and the Army Corps. Wester and Sullivan recognize that the GLO and Army Corps do not regulate the height of structures that extend into the water. Yet they argue that the boathouse "was non-compliant with the plans originally approved" because the ultimate height was greater than the originally-proposed height.[10] Likewise, they argue that "the Gulledges did not notify the neighbors of the additional height added to the boathouse" without establishing that the Gulledges had any obligation to notify them of such or how this led to any legal injury. These arguments do not change the nature and character of the neighborhood or the nature and character of the interference.

The evidence is legally insufficient to support the judgment against the Gulledges for negligent nuisance and the related injunction. We therefore sustain the Gulledges' first issue.[11]

Conclusion

We reverse the trial court's judgment on Wester's and Sullivan's negligent nuisance claim and render a take nothing judgment against Wester and Sullivan.

[1] According to a boathouse architect, the average heights vary from 14 to 28 feet. He has never designed a boathouse larger than 34 feet tall.
[2] The yacht is over 20 feet tall, sleeps six people, and has three cabins and a small kitchen.
[3] The deck's rooftop has a peak that is 3-feet 6-inches high. According to expert testimony from an architect, if the roof was removed but the deck remained, a guardrail would still be required under applicable building codes.
[4] The GLO did, however, charge the Gulledges an additional fee for their boathouse's second story, which is the agency's custom because of the risk of increased debris in the water after a storm.
[5] Jed Gulledge has a home on Blue Point Road that is 55 feet above the normal tide of channel.
[6] The Court explained, for instance, that "while noises or odors from a horse stable might occasionally or minimally interfere with the enjoyment of neighboring land, they can create a nuisance only if the stable is so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value." Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 595 (Tex. 2016) (internal quotations and citations omitted). Similarly, "because gunpowder must be stored somewhere, its storage can create a nuisance when it is a constant source of apprehension and alarm, prevents the plaintiffs from renting their land at any price, and substantially reduces the land's market value." Id. (internal quotations and citations omitted).
[7] The Court quoted but added an emphasis to its 2004 opinion in Schneider National Carriers, Inc. v. Bates,147 S.W.3d 264, 269 (Tex. 2004), holding modified on other grounds, Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474 (Tex. 2014), when it included the following sentence in footnote eight: "There is no question that foul odors, dust, noise, and bright lights—if sufficiently extreme—may constitute a nuisance." Id.at 595 n.8.
[8] The Court also described the nuisance created by a horse stable as "destroy[ing] the comfort of persons owning and occupying adjoining premises, and impair[ing] their value." Id. at 595.
[9] See id. at 600 (stating that "determination of whether a defendant's interference with a plaintiff's use and enjoyment of land is substantial or whether any particular effect of that interference is unreasonable requires consideration and balancing of a multitude of factors").
[10] Wester and Sullivan argue in their brief that "the evidence at trial was that the only permit the Gulledges ever received . . . did not authorize any construction over 25 feet. This alone would support the jury's finding of negligence." There are a number of problems with this argument. They cite no authority in support of their assertion. It is inconsistent with their concession elsewhere in their brief that the GLO and Army Corps do not regulate the height of structures. They brought a negligent nuisance claim, not a general negligence claim, and the jury was instructed on negligent nuisance. And they provide no explanation for how they have standing to complain about the permitting process.

[11] Because it would not result in greater relief, we do not reach the Gulledges' remaining two issues concerning the factual sufficiency of the evidence and the scope of the injunction. See TEX. R. APP. P. 47.1.

Justice Higley, concurring.

CONCURRING OPINION

LAURA CARTER HIGLEY, Justice.

The majority does not reach whether blocking the view of another landowner is actionable as a nuisance claim. Instead, the majority holds that, even if such a claim is actionable, Wester and Sullivan did not provide legally sufficient evidence to support the claim. I take a different approach. I would hold that blocking a view of another landowner is not actionable under nuisance law. As a result, I express no opinion on what amount of evidence would be sufficient if it were actionable. Accordingly, I concur in the judgment only.

This suit involved claims for private nuisance. Wester and Sullivan asserted claims of intentional nuisance and negligent nuisance, asserting that the Gulledges' boathouse, if completed, would significantly impair their views of the water and cause them damage as a result. The jury found only negligent nuisance. In their first issue, the Gulledges argue that evidence supporting the negligent nuisance claims is legally insufficient.

A negligent nuisance "claim is governed by ordinary negligence principles." Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016). Accordingly, Wester and Sullivan were required to prove that the Gulledges owed them a duty, they breached the duty, and Wester and Sullivan suffered damages as a proximate cause of the breach. See id. In addition, Wester and Sullivan had to prove that the Gulledge's "negligent conduct caused a nuisance, which in turn resulted in [Wester's and Sullivan's] damages." Id.

"A `nuisance' is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)see also Crosstex, 505 S.W.3d at 593-94 (affirming Holubec's definition of nuisance). To be a nuisance, the injury must be "an invasion of a plaintiff's legal rights." Crosstex, 505 S.W.3d at 594. As a result, a nuisance does not refer "to a cause of action . . . but instead to the particular type of legal injury that can support a claim or cause of action seeking legal relief." Id. (emphasis in original). In addition, the interference must be substantial and the discomfort and annoyance must be unreasonable. Id. at 595.

As the Gulledges point out, Texas courts have long and consistently held that complaints about aesthetics of neighboring properties will not support a nuisance finding. See, e.g., Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528, at *5 (Tex. App.-Austin May 19, 2017, pet. denied) (mem. op.) (holding "`aesthetic' nuisance claims are not recognized in Texas"); Jeansonne v. T-Mobile W. Corp., No. 01-13-00069-CV, 2014 WL 4374118, at *8 (Tex. App.-Houston [1st Dist.] Sept. 4, 2014, no pet.) (mem. op.) (holding "Texas courts have not found a nuisance merely because of aesthetic-based complaints"); Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509 (Tex. App.-Eastland 2008, pet. denied) ("Texas courts have not found a nuisance merely because of aesthetical based complaints."); Jones v. Highland Memorial Park, 242 S.W.2d 250, 253 (Tex. Civ. App.-San Antonio 1951, no writ) (rejecting aesthetical complaints of cemetery in neighborhood); Shamburger v. Scheurrer, 198 S.W. 1069, 1071 (Tex. Civ. App.-Fort Worth 1917, no writ) (rejecting aesthetical complaints of lumber yard in neighborhood).

Aesthetical complaints concern the loss of a desirable view on or across another land-owner's property. See Rankin, 266 S.W.3d at 512. "If Plaintiffs have the right to bring a nuisance action because a neighbor's lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property." Id. Accordingly, aesthetics are not relevant to a nuisance complaint. See Ladd v. Silver Star I Power Partners, LLC, No. 11-11-00188-CV, 2013 WL 3377290, at *3 (Tex. App.-Eastland 2013, pet. denied) (holding "as a matter of law aesthetic impact will not support a claim for nuisance"); Jeansonne, 2014 WL 4374118, at *12 (affirming trial court's rendition of summary judgment on nuisance claim based on aesthetics).

Likewise, there is a "well-established rule that a landowner may, in the absence of building restrictions or regulations, build on his property as he likes even if it obstructs a neighbor's light, air, or vision; depreciates the neighboring land's value; or the builder acts with improper motive." Payne v. Edmonson, No. 01-96-00792-CV, 1999 WL 350928, at *4 (Tex. App.-Houston [1st Dist.] June 3, 1999, pet. denied) (mem. op; not designated for publication); accord Boys Town, Inc. v. Garrett, 283 S.W.2d 416, 420-21 (Tex. Civ. App.-Waco 1955, writ ref'd n.r.e.); Dall. Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex. Civ. App.-Dallas 1925, no writ). "This has been the law, and it has been followed by an unbroken line of authorities." Harrison v. Langlinais, 312 S.W.2d 286, 288 (Tex. Civ. App.-San Antonio 1958, no writ)see also Scharlack v. Gulf Oil Corp., 368 S.W.2d 705, 707 (Tex. Civ. App.-San Antonio 1963, no writ) ("It is our opinion that the appellants have alleged nothing more than an interference with their view.").

Wester and Sullivan argue their claim is not based on aesthetics. They assert, "There is a difference between arguing a fence next door is `ugly,' and claiming excessively tall construction blocks a desirable and economically beneficial view from a person's property." They cite no legal authority for this proposition. I find no justification for claiming that creating an ugly view is not actionable while blocking a pretty view is. In either situation, the complaint is about aesthetics, claiming a right to a particular view of property outside the plaintiffs' own property.

They argued at trial that the size of the Gulledges' boathouse was out of character with the neighborhood. This is an aesthetical claim. See Serafine, 2017 WL 2224528, at *5(characterizing claim that fence was "out of scale to the property" as aesthetical complaint); Champion Forest Baptist Church v. Rowe, No. 01-86-00654-CV, 1987 WL 5188, at *2 (Tex. App.-Houston [1st Dist.] Jan. 8, 1987, no writ) (mem. op.; not designated for publication) (holding "conditions that annoy because they are disagreeable, unsightly, and undesirable are not nuisances").

Even if Wester and Sullivan were correct that their claims were not based on aesthetics, however, it is unquestionable that their complaints were based on their views being blocked. This is not actionable. See Payne, 1999 WL 350928, at *4; Scharlack, 368 S.W.2d at 707.

Wester and Sullivan further argue that the line of cases excluding aesthetics as a basis for finding nuisance were overruled by Crosstex. In Crosstex, the Supreme Court of Texas undertook the task of clarifying private nuisance law. 505 S.W.3d at 588. The court affirmed the existing definition of a nuisance. Id. at 593-94. It clarified that a nuisance refers to a legal injury. Id. at 594-95. As a part of that legal injury, the court emphasized the need for substantial interference and unreasonable discomfort or annoyance to maintain a claim. Id. at 595-96. For "unreasonable discomfort or annoyance," the court emphasized that the inquiry is focused on the effect of the conduct, not the conduct itself, id. at 596-99; that the test is objective, id. at 599-600; and that numerous factors are considered in determining unreasonableness and substantial interference, id. at 600-01. Next, the court clarified the distinctions between intentional nuisance, negligent nuisance, and strict-liability nuisance. Id. at 601-09. It noted that most of the considerations for nuisance are questions of fact. Id. at 609. "A court may decide the issues as a matter of law only if the underlying facts are undisputed or, in light of all the evidence, `reasonable minds cannot differ.'" Id. Finally, the court discussed the type of remedies available for a claim based on nuisance. Id. at 609-612.

Nowhere in the court's detailed review of nuisance law does the court mention nuisance claims based on aesthetics or claims based on a blocked view. Nor does it cite to the line of cases I have identified pertaining to aesthetics and blocked views. In addition, the court explained in Crosstex that the opinion was intended to clarify areas of nuisance law which have caused confusion. See id. at 591. There has been no confusion in Texas about whether aesthetical complaints can support a nuisance finding. Instead, Texas courts have consistently and uniformly held that they cannot. See, e.g., Serafine, 2017 WL 2224528, at *5 (holding "`aesthetic' nuisance claims are not recognized in Texas"); Jeansonne, 2014 WL 4374118, at *8 (holding "Texas courts have not found a nuisance merely because of aesthetic-based complaints"); Rankin, 266 S.W.3d at 513 ("Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL's motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm.").
Likewise, there is no confusion about whether a blocked view is actionable as a nuisance. See Payne, 1999 WL 350928, at *4 (recognizing well-established law that landowner can build on his property even if it blocks view of other landowners); Harrison,312 S.W.2d at 288 (holding right to build upon land, even if it blocks view of others, is "one of the incidents of fee simple ownership"); Scharlack, 368 S.W.2d at 707 ("Under the rule recognized in this State, a building or structure cannot be complained of as a nuisance merely because it obstructs the view of neighboring property"); Boys Town, 283 S.W.2d at 421 ("Our Supreme Court[] has not seen fit to disturb or modify the above rule, although it was written in 1860."); cf. Dall. Land & Loan Co., 276 S.W. at 474 ("It is a matter of common knowledge that automobiles and garages, as ordinarily used by people the country over, are not, and do not by such use become, nuisances.").

Because I would hold that, as a matter of law, Wester's and Sullivan's claims are not actionable, I express no opinion on whether there is sufficient evidence to support such claims. Accordingly, I concur in the judgment.

Justice Higley, concurring in the judgment.