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.





Friday, August 31, 2018

TTCA: Did Asbestos in the Courthouse Kill a Long-time Judge?

Justice Terry Jennings parts ways with colleagues in suit by widow of Jefferson County judge over asbestos exposure in the Jefferson County Court House. Jefferson County sought dismissal of widow's claims against county but MDL Judge Mark Davidson denied the County's bid to squash her wrongful death action. On appeal to the First Court of Appeals, panel majority (consisting of Massengale and Caughey) vacates the denial and dismisses the widow's case, faulting her for not giving timely notice of claim under the Tort Claims Act before anyone knew that the deceased judge suffered from mesothelioma. Ellarene Farris, Individually and as Personal Representative of the Heirs and Estate of James Farris No. 01-17-00493-CV (Tex.App. – Houston [1st Dist.] August 31, 2018).

You have to be a Texas lawyer to understand the logic of it all, if any. How can you give notice of claim when the ill effects of the asbestos exposure have not yet manifested themselves?

Justice Jennings' dissent makes much more sense.

DISSENT BY JUSTICE TERRY JENNINGS 


Opinion issued August 31, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00493-CV
———————————
JEFFERSON COUNTY, TEXAS, Appellant
V.
ELLARENE FARRIS, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE HEIRS AND ESTATE OF JAMES FARRIS,
Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2005-09580

DISSENTING OPINION

[Judge James] Farris, who was 72 when he died, spent almost
his entire legal career[, until retiring in 1996,] in the Jefferson County
courthouse[, which included a period of asbestos remediation at the
courthouse, during which he was allegedly exposed to the deadly
fibers] . . . .
2
. . . .
“He had just given a speech in Idaho in October 2004,” Ellarene
Farris said. “He came home and said he couldn’t do it anymore. He
went into the hospital and nine days later, he was dead.”
She said her husband had no idea he suffered from
mesothelioma, a cancer of the lining of the lungs. The symptoms
began as an abdominal pain that wouldn’t quit and ended soon after
with a struggle to breathe.1
1 Dan Wallach, Death Suit Blaming Asbestos in Jefferson County Courthouse Could End, BEAUMONT ENTERPRISE, Sept. 12, 2016, https://www.beaumontenterprise.com/news/article/Death-suit-blaming-asbestos-in-Jefferson-County-9217178.php (emphasis added) (Exhibit 3 to Jefferson County’s Amended Plea to the Jurisdiction and Amended Motion for Summary Judgment and Amended No Evidence Motion for Summary Judgment). 

Because the majority errs in misconstruing Texas Supreme Court precedent and dismissing the wrongful death and survival action of appellee, Ellarene Farris, against appellant, Jefferson County, Texas, for failure, pursuant to the Texas Tort Claims Act, to provide “timely” notice in 1997 of a non-existent claim, I respectfully dissent.

The Texas Tort Claims Act waives governmental immunity to suit in certain specified circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021–.29 (Vernon 2011). And the statute provides:

A governmental unit is entitled to receive notice of a claim against it
under this chapter not later than six months after the day that the
incident giving rise to the claim occurred. The notice must reasonably
describe:

(1) the damage or injury claimed; 
(2) the time and place of the incident; and
(3) the incident.

Id. § 101.101(a) (Vernon 2011) (emphasis added). 

Clearly, the statute “does not require notice of a nonexistent claim.” Hous. Auth. of Beaumont v. Landrio, 269 S.W.3d 735, 745 (Tex. App.—Beaumont 2008, pet. denied) (citing Univ. of Tex.
Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004), superseded by statute on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783 (codified at TEX. GOV’T CODE ANN. § 311.034)).

Judge Farris died of mesothelioma on November 5, 2004, a mere nine days
after exhibiting his first symptoms of illness and nearly eight years after his last
exposure to asbestos in the Jefferson County courthouse and annex in December
1996. His widow, Ellarene, provided, pursuant to the Texas Tort Claims Act,
Jefferson County with written notice of her claims against it on April 4, 2005, less
than six months after the emergence of Judge Farris’s first symptoms and,
ultimately terminal, diagnosis. Stunningly, the majority holds that the claims
asserted by Ellarene are barred by governmental immunity because she did not
provide notice of them to Jefferson County within six months of Judge Farris’s
final exposure to asbestos in December 1996—before the existence of any injury
or damage. See TEX. CIV. PRAC. & REM. CODE § 101.101(a). 

Based on the majority’s reasoning, Judge Farris was required to provide
Jefferson County with notice of a premature and speculative claim within six
months of December 1996. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex.
1998) (“Requiring plaintiffs to file suit based only upon their suspicions about
causal connections is . . . undesirable in latent occupational disease cases because,
among other things, plaintiffs would be compelled to file premature, speculative
claims.”). But at that time, Judge Farris did not yet have a claim against Jefferson
County for which he could provide notice because it was nearly eight years before
he exhibited any symptom or was diagnosed with mesothelioma, i.e., before any
damage or injury to him had come into existence. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.101(a). Instead, his claim relating to a malignant
asbestos-related condition arising from his employment with Jefferson County did
not accrue until his diagnosis or the manifestation of symptoms that put him on
notice of his condition. See Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653
(Tex. 2000); see also Childs, 974 S.W.2d at 33 (accrual of damages in latentdisease
cases not until “plaintiff’s symptoms manifest themselves to a degree or for
a duration that would put a reasonable person on notice”).

Here, as previously explained by the Texas Supreme Court, Judge Farris’s
exposure to asbestos in the Jefferson County courthouse and annex “was only an
incident—one of two—giving rise to [any] claim” he might have against Jefferson 
County. Loutzenhiser, 140 S.W.3d at 356 (emphasis in original). In Loutzenhiser,
a mother, individually and on behalf of her child, brought suit against the
University of Texas Southwestern Medical Center at Dallas, alleging that a
chorionic villus sampling (“CVS”), a prenatal diagnostic test, performed by the
Medical Center caused her child to be born with birth defects. Id. at 354. The
court held that section 101.101(a)’s six-month-notice period ran from the birth of
the child, not the date that the Medical Center performed the CVS. Id. at 356. The
court explained:

The Medical Center argues that “the incident giving rise to the claim”
was the CVS, but the CVS was only an incident—one of two—giving
rise to the claim. The other such incident, and one equally necessary
to the existence of the claim, was [the child’s] live birth. If the notice
period ran from the CVS, the statute required notice of a nonexistent
claim. “Courts should not read a statute to create such an absurd
result.” We decline to do so here when there is a reasonable
alternative construction of the statutory language. Because [the
child’s] live birth was an incident giving rise to his claim, and one
essential to the existence of the claim, we hold that the six-month
period for giving notice began when [the child] was born.[2]
Id. at 356–57 (quoting Barshop v. Medina Cty. Underground Water Conservation
Dist., 925 S.W.2d 618, 629 (Tex. 1996)).

2 The baby, until born, legally had no claim because of “the longstanding common
law rule . . . that the rights of a fetus [are] contingent on live birth.” Univ. of Tex.
Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)
(second alteration in original) (internal quotations omitted).

As in Loutzenhiser, if the notice period in this case runs from Judge Farris’s
last exposure to asbestos, it would require “notice of a nonexistent claim.” See id.
at 356. Thus, section 101.101(a)’s notice period must run from the date that Judge
Farris’s injuries and damages arose, nine days before his death.

In reaching the opposite conclusion, the majority misconstrues
well-established Texas Supreme Court precedent, including Loutzenhiser. Because
Judge Farris had not suffered any damage or injury, and did not even arguably
have a claim against Jefferson County, until nine days before his death, I would
hold that Ellarene’s notice, provided within six months of Judge Farris’s first
symptoms and, ultimately terminal, mesothelioma diagnosis, was timely.

The majority’s conclusion to the contrary should be corrected by our high
court. See TEX. GOV’T CODE ANN. § 22.001(a) (Vernon Supp. 2017) (“The
supreme court has appellate jurisdiction . . . if the court determines that the appeal
presents a question of law that is important to the jurisprudence of the state.”).

Terry Jennings
Justice

Panel consists of Justices Jennings, Massengale, and Caughey.
Jennings, J., dissenting

Order denying Jefferson County's motions for dismissal of widow's case signed by Judge Mark Davidson
Order denying Jefferson County's motions for dismissal of widow's case
signed by Judge Mark Davidson
Also see Beaumont Enterprise article: Death suit blaming asbestos in Jefferson County courthouse could end. By Dan Wallach Published 9:45 am CDT, Monday, September 12, 2016.