1717 Bissonnet, L.L.C. v. Penelope Loughhead
500 S.W.3d 488
| Tex. App. | 2016Background
- Developer (1717 Bissonnet, LLC) obtained city approval to replace a 2‑story apartment complex with a 21–23 story mixed‑use high‑rise near residences in Houston; neighbors organized opposition and litigation followed.
- Developer settled with the City, obtained final permits, demolished the prior building, but had not begun construction when suit was tried.
- Forty‑five plaintiffs (thirty homes) claimed the proposed project would be a private nuisance, seeking either a permanent injunction or damages; the jury found a prospective nuisance as to twenty homes and awarded lost‑market‑value and loss‑of‑use‑and‑enjoyment damages.
- Trial court awarded only lost‑market‑value damages to the prevailing homeowners (preserving the right to seek use/enjoyment damages later), denied the requested permanent injunction, and taxed most costs against Developer.
- On appeal, Developer challenged the damages award and costs; Homeowners cross‑appealed the denial of injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recoverability of damages for a prospective nuisance | Homeowners argued they already suffered lost market value from Developer's announced plan and are entitled to monetary relief now | Developer argued Texas law recognizes damages only for existing nuisances; no tort for a merely prospective nuisance | Court: No cause of action for damages from a prospective nuisance; damages award reversed and rendered (Homeowners may seek damages once an existing nuisance accrues) |
| Adequacy of jury submission for lost‑market‑value damages | Homeowners relied on jury question assessing damages "caused by the nuisance" | Developer argued there was no liability theory submitted that would support awarding market‑value damages for a future nuisance | Court: The only liability finding was for a nuisance "if built," which is prospective; submitting damages was legally improper and immaterial to liability, so the damages finding should be disregarded |
| Permanent injunction | Homeowners argued the jury nuisance finding required injunctive relief to prevent irreparable harm | Developer argued equities, city approval, public interest, and developer reliance weighed against an injunction | Court: Reviewed for abuse of discretion; trial court balanced factors (localized impact, enforcement difficulties, developer hardship, city approval/public benefit, delay, alternative remedies) and did not abuse discretion in denying injunction; cross‑appeal denied |
| Taxation of costs | Homeowners claimed prevailing‑party costs for nuisance and damages award | Developer argued that, with damages reversed, Developer is the successful party and entitled to recover costs | Court: Because damages award reversed and injunction denied, Developer is prevailing party; judgment taxing most costs against Homeowners (except those taxed to non‑prevailing plaintiffs) rendered in Developer's favor |
| Standing of certain plaintiffs | Developer contended some plaintiffs lacked ownership/standing at trial | Homeowners relied on expert testimony referring to the plaintiffs as owners; Developer did not produce contrary evidence | Court: Sufficient evidence (expert testimony) to support standing; standing challenge overruled |
Key Cases Cited
- Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) (defines nuisance and discusses damages for permanent nuisance)
- Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (Tex. 2012) (accrual of permanent nuisance claim when condition substantially interferes with use and enjoyment)
- Bay Petroleum Corp. v. Crumpler, 372 S.W.2d 318 (Tex. 1963) (loss in market value alone does not permit recovery absent a nuisance cause of action)
- Sherman Gas & Electric Co. v. Belden, 123 S.W. 119 (Tex. 1909) (same principle: decrease in property value not recoverable without nuisance finding)
- Sanders v. Miller, 113 S.W. 996 (Tex. Civ. App. 1908) (refuses recovery of lost market value for anticipated nuisance)
- Storey v. Central Hide & Rendering Co., 226 S.W.2d 615 (Tex. 1950) (courts must balance equities when deciding injunctive relief for nuisance)