Futerfas v. Park Towers

• Decision Date: 24 February 1986
• Docket Number: No. 05-85-00410-CV,05-85-00410-CV
• Citation: 707 S.W.2d 149
• Parties: Larry FUTERFAS, Appellant, v. PARK TOWERS, et al., Appellees.
• Court: Texas Court of Appeals

Page 149

707 S.W.2d 149

Larry FUTERFAS, Appellant, v. PARK TOWERS, et al., Appellees.

No. 05-85-00410-CV.

Court of Appeals of Texas,

Dallas.

Feb. 24, 1986.

Rehearing Denied April 7, 1986.

Timothy E. Kelley, Dallas, for appellant.

Ronald W. Johnson, Touchstone, Bernays, Johnston, Beall & Smith, Clayton E. Devin, Geoffrey C. Graham, Cowles & Thompson, Dallas, for appellees.

Before SPARLING, WHITHAM and DEVANY, JJ.

WHITHAM, Justice.

Appellant, Larry Futerfas, appeals from a take-nothing summary judgment in favor of Park Towers, Inc., William R. Hoge, Paul Stotts, Russell H. Perry, David Braden, Howard R. Sluyter, Mrs. Floyd Ramsey, William O. Stevens, George P. McCracken and Mrs. George P. McCracken. In his brief on appeal, Futerfas omits Mrs. George P. McCracken as a named appellee. The appeal bond is payable to the District Clerk as permitted by TEX.R.CIV.P. 354(a) rather than named appellees. Consequently, we deem Futerfas to have waived his right to appeal the take-nothing judgment in favor of Mrs. George P. McCracken and we treat the trial court's judgment in favor of Mrs. McCracken as final. Therefore, the appellees in the present case are Park Towers, Inc., William R. Hoge, Paul Stotts, Russell H. Perry, David Braden, Howard R. Sluyter, Mrs. Floyd Ramsey, William O. Stevens and George P. McCracken. Park Towers is a cooperative apartment building. The other appellees except Perry are residents of the building. Perry is the owner of property adjacent to Park Towers. All of the appellees except Braden join in one brief. Braden filed a separate brief. When referring to all of the appellees, including Braden, we will use the descriptive term "residents." When referring to all of the appellees except Braden, we will use the descriptive term "group residents." When referring to the appellee Braden, we will use the name "Braden."

Futerfas owns improved real estate located a short distance from Park Towers and used by Futerfas' tenant as a night club. This case results from the residents' objections to the night club. Futerfas alleged these causes of action against the residents: (1) wrongful injunction; (2) abuse of process and malicious prosecution; (3) tortious interference with contract; (4) harassment and invasion of privacy; and (5) conspiracy between the residents to accomplish each of the preceding. In his sole point of error, Futerfas contends that the trial court erred in rendering summary judgment for the residents. Except as to Futerfas' cause of action for abuse of process and malicious prosecution, we conclude that there are genuine issues of material fact precluding summary judgment as to Futerfas' remaining causes of action. Accordingly, we affirm in part and reverse and remand in part.

Background

The present case is all that remains of extended litigation. Other parties and claims have exited the stage. This is a story of conflict between homeowners and a neighboring property owner and others over land use. The parties relate their sides of the story in numerous and voluminous depositions which constitute the summary judgment proof. Our reference to "testimony" refers to these depositions. The proof contains undisputed facts, disputed facts, and undisputed facts from which reasonable minds can draw different inferences or conclusions. The mere fact that facts are undisputed does not always eliminate the right to a fact finding. If reasonable minds can draw different inferences or conclusions from undisputed facts, a fact issue is presented. Commercial Standard Insurance Co. v. Davis, 134 Tex. 487, 489-90, 137 S.W.2d 1, 2 (1940). We now try to give the reader a sufficient summary of the deposition testimony to understand our disposition of the present case.

In late 1980, Futerfas leased his property to Texas Music & Feed Co., Inc. to operate as a bar and night club. An individual named Will Barnes was to be the main performer in the club. Indeed, the club was named "Will's Barn." Will's Barn had its grand opening on November 17, 1980, and was billed as "Dallas' only real HONKY-TONK" which invited patrons to "come on down and stomp, clap, dance, and get rowdy to the boisterous MUSIC of the WILL BARNES BAND." The patrons did as invited to the dismay of the residents. Almost immediately, the residents complained about noise from Will's Barn. The police visited the club on five separate occasions on November 18. On December 10, the board of directors of Park Towers met to review the court papers to be filed against Futerfas and others. The petition was read to the board and approved by the board on that date. The lawsuit, however, was not filed until December 30. The residents sought and obtained a temporary restraining order which was served on December 31, New Year's Eve. The application for the temporary restraining order was sworn to by all the residents. Prior to filing this suit, all the residents except Perry had personally experienced excessive and bothersome noise emanating from the club which disturbed their sleep and denied them the quiet enjoyment of their homes. Perry joined in the suit because of his concern that the noise nuisance would affect the value of his property.

The temporary restraining order enjoined Futerfas and others from:

(1) Playing either live or recorded music on the premises in or around the Will's Barn dance hall, 3136b Routh Street, Dallas, Texas, which can be heard outside the four walls of the building located at that address.

(2) Engaging in or allowing any other activity by either occupants or patrons designed to create noise or sound of any type in or around the Will's Barn dance hall, 3136b Routh Street, Dallas, Texas, which can be heard outside the four walls of the building located at that address.

(3) Allowing patrons of the Will's Barn dance hall, 3136b Routh Street, Dallas, Texas, to remove any containers of any beverage from within the four walls of the building located at that address.

(4) Allowing patrons of the Will's Barn dance hall, 3136b Routh Street, Dallas, Texas, to consume alcoholic beverages of any type in the parking lot or other property surrounding the building located at that address.

(5) Allowing patrons of the Will's Barn dance hall, 3136b Routh Street, Dallas, Texas, to deposit beer cans, bottles, cartons and other containers and trash on the parking lot and other property surrounding the building located at that address.

The restraining order expired by its own terms on January 8 pursuant to TEX.R.CIV.P. 680.

Dissatisfied with their civil litigation, Braden, Stevens and McCracken, in late February 1981, met with a group of City of Dallas officials composed of an assistant city manager, an assistant chief of police and attorneys from the city attorney's office. The meeting produced results. On March 12, police raided Will's Barn. Four squad cars appeared at Will's Barn and eight officers entered the club and removed persons to the squad cars. Texas Music then sued the City of Dallas in federal court to restrain their unlawful exercise of police power and harassment of Texas Music. As a result of that lawsuit, the City of Dallas agreed that in the future only one squad car would be dispatched in response to noise complaints at Will's Barn. Near the time of the meeting with the city officials, some residents also turned to the City of Dallas municipal court system. McCracken filed two criminal complaints against Futerfas, and Stevens and Ramsey each filed one against Futerfas. These residents assert that they filed the complaints with one objective in mind--to abate the nuisance inflicted upon them in their homes by Will's Barn. Futerfas admits that he has not been arrested or tried in connection with these complaints.

Persons used the telephone to express their views to Futerfas about the noise emanating from Will's Barn. The only admitted caller was Mrs. McCracken. Mrs. McCracken telephoned Futerfas more than once to complain about the noise. Mrs. McCracken testified that she used the telephone in the following manner. The first time she called she identified herself and said the music was too loud. Futerfas responded that he had nothing to do with the operation of the building. He also yelled at her, but she was not surprised that he was upset because it was 11:00 p.m. She called him several times after that and only identified herself once in these later calls. She never called him during normal business hours, but usually called him between 1:00 a.m. and 1:30 a.m. She only called him at night because that was when the music was bothering her. Except for the two times when she actually spoke to Futerfas, she would call Futerfas, someone would answer, and then she would hang up. She called to let Futerfas know that the music was still bothering her, but she did not know how Futerfas would be aware of that if she hung up without talking to him. Mrs. McCracken stopped making the telephone calls after a visit by police inquiring about the calls. Mrs. McCracken testified that she made the telephone calls without the knowledge or consent of the residents. Persons other than Mrs. McCracken made some of these telephone calls. Futerfas testified that a man made the first harassing calls. The man would say that he was up and that he wanted to make sure Futerfas was up too, and then the man would hang up. Futerfas reported these telephone calls to the police and the telephone company. The police reported to Futerfas that some of the calls were traced to the McCracken residence. Futerfas testified that he was "getting phone calls every night of the week" and that he "would get two or three or four phone calls a night and people would hang up." Futerfas also stated that the calls started in January 1981 and continued until March or April of 1981. The police told Futerfas the calls were coming from the Park Towers. The telephone calls stopped after the police told Futerfas that they would go to the Park Towers and get the...