GTE Mobilnet v Pascouet

• Decision Date: 13 September 2001
• Docket Number: No. 14-99-00869-CV,14-99-00869-CV
• Citation: 61 S.W.3d 599
• Parties: <!--61 S.W.3d 599 (Tex.App.-Houston 2001) GTE MOBILNET OF SOUTH TEXAS LIMITED PARTNERSHIP, Appellant v. ADRIEN PASCOUET AND CHANTAL PASCOUET, Appellees Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 599

61 S.W.3d 599 (Tex.App.-Houston [14th Dist.] 2001)

GTE MOBILNET OF SOUTH TEXAS LIMITED PARTNERSHIP, Appellant v ADRIEN PASCOUET AND CHANTAL PASCOUET, Appellees

No. 14-99-00869-CV

Court of Appeals of Texas, Houston (14th Dist.)

September 13, 2001.

Rehearing Overruled October 31 and November 1, 2001

On Appeal from the 295th District Court Harris County, Texas Trial Court Cause No. 94-60399

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Yates, Edelman, and Wittig.

OPINION

Don Wittig, Justice

The Pascouets brought nuisance and invasion-of-privacy claims after GTE Mobilnet of South Texas Limited Partnership erected a 126-foot cellular phone tower 20 feet from their Bunker Hill back yard. We examine whether the Federal Telecommunications Act of 1996 preempts the Pascouets' claims; we also review the jury's findings against GTE and its assessment of nearly one million dollars in damages. The trial court denied the Pascouets' requests for a permanent injunction and for declaratory relief, and it rendered judgment on the jury's verdict. On appeal, GTE attacks the money judgment; on cross-appeal, the Pascouets assert that the trial court should have granted injunctive and declaratory relief. We overrule all issues presented in this appeal, except that we hold there was no evidence to support the jury's findings: (1) of future damages for the nuisance claims; and (2) of liability and damages as to the invasion-of-privacy claims. For the reasons stated below, we reverse and render judgment that the Pascouets take nothing as to future damages for their nuisance claims and as to all of their invasion-of-privacy claims; we affirm the remainder of the trial court's judgment, including past damages for nuisance.

Background

The Pascouets moved to Houston from France in 1979. In 1983 they purchased a home in the City of Bunker Hill Village ("Bunker Hill") for $400,000. They were attracted by the peaceful environment in Bunker Hill as well as by the strict zoning ordinances there. The Pascouets knew about the Bunker Hill municipal complex that was next to their property ("Municipal Complex"), but the city's activities there never bothered them before the occurrence made the basis of this suit.

To fill a gap in its cellular phone coverage, GTE needed to find a new transmission tower in the Bunker Hill area. The Memorial Village Police Department ("Police Department") provides police services for several cities, including Bunker Hill. The Police Department already operated an 80-foot communications tower on the Municipal Complex. This tower was several hundred feet from the Pascouets' house. The Police Department was not receiving adequate coverage from the antenna on the 80-foot tower, and Bunker Hill wanted to remedy this problem to improve its police service. GTE and Bunker Hill executed a License Agreement allowing GTE to build a 126-foot tall communications tower ("Tower") and equipment building ("Building") on the Municipal Complex. Under the License Agreement, GTE pays Bunker Hill $10,000 per year during the term of the agreement, which has an initial term of ten years, with an option to extend the term for four more ten-year periods. GTE agreed to put the Police Department antenna at the top of the Tower to improve the Police Department's coverage.

Bunker Hill instructed GTE not to build the Tower near the Bunker Hill city hall but rather to build it near the edge of the Municipal Complex, close to the boundary of the Pascouets' property. GTE did not lease the Municipal Complex; rather, GTE obtained a license from Bunker Hill to construct and operate the Tower and the Building on the Municipal Complex. Bunker Hill and GTE contend that Bunker Hill and its property are not subject to Bunker Hill's zoning ordinances. Therefore, GTE did not obtain any building permits from Bunker Hill, nor did it apply for a special exception or a special use permit or any other amendment to Bunker Hill's zoning ordinances to allow for the erection and operation of the Tower and the Building.

Bunker Hill's city administrator, Mr. Eby, talked to Mrs. Pascouet one time, describing the new construction as being "close to the fence" and as a "little building" with an "antenna" nearby. He promised to update the Pascouets later, but he never spoke to the Pascouets again. GTE erected the Tower on August 25, 1994, without having had any communications with the Pascouets. The Pascouets filed this suit against GTE and Bunker Hill four months later. The Tower stands about twenty feet from the property line and sixty feet from the Pascouets' home.

The Building had two floodlights that were on all night and that illuminated the Pascouets' backyard so that one could read and write on their patio in the middle of the night. The Building also had two noisy air conditioners, with one operating all the time. The noise from the air conditioners drowned out normal conversation in the backyard, could be heard indoors, and interrupted the Pascouets when they were trying to sleep. When the door to the Building was open, the GTE workers could and did look out over the Pascouets' fence and see into their backyard. Workers would also climb the Tower. In 1997, GTE turned the floodlights off. In April of 1998, GTE built a fence so that its workers at ground level could not see into the Pascouets' backyard.

After the Pascouets asserted federal claims against Bunker Hill, the defendants removed this case to federal court. Shortly before trial in federal court, the Pascouets settled with Bunker Hill for $28,000 and dismissed Bunker Hill from this suit. The federal court then remanded this case to state court. After a three-day trial, the trial court charged the jury with questions on liability and damages for nuisance and invasion of privacy, percentage-of- responsibility questions as to Bunker Hill and GTE, and reasonable attorney's fees for the Pascouets' declaratory judgment action. Although the jury determined reasonable attorney's fees for the Pascouets' declaratory judgment action, the court instructed the jury two times that it was not to decide the legal issue of whether the Tower and the Building violate any Bunker Hill ordinance and that the court--not the jury--would decide this issue.

The jury found that the Tower was a nuisance for which GTE was 100% responsible and awarded actual damages of $748,000--$28,000 for loss of market value in the house, $60,000 for Mr. Pascouet's past loss of use and enjoyment, $180,000 for his future loss of use and enjoyment, $120,000 for Mrs. Pascouet's past loss of use and enjoyment, and $360,000 for her future loss of use and enjoyment.

The jury also found that both GTE and Bunker Hill invaded the Pascouets' privacy and that Bunker Hill was 30% responsible and GTE 70% responsible for the invasion-of-privacy damages. The jury assessed actual damages of $225,000--$100,000 for Mr. Pascouet's past mental anguish, $50,000 for his future mental anguish, $50,000 for Mrs. Pascouet's past mental anguish, and $25,000 for her future mental anguish. The jury also found reasonable attorney's fees for trial and appellate work as to the Pascouets' declaratory judgment action.

The Pascouets requested that the trial court enter a declaratory judgment that Bunker Hill's zoning ordinances apply to GTE and that GTE, the Tower, the Building, and the lot on which the Tower and Building were constructed violate various Bunker Hill zoning ordinances. The Pascouets also requested a permanent injunction requiring GTE to: (1) remove the Tower and Building because they violate the Bunker Hill ordinances; (2) comply with the zoning ordinance in the future; and (3) cease its operations that are a nuisance. The trial court denied the Pascouets' requests for injunctive and declaratory relief. The trial court entered judgment on the jury's verdict, except that it awarded no attorney's fees.

GTE filed a motion to modify the judgment to reduce it by $486,500 and by 50% of the prejudgment interest based on an alleged settlement credit of 50% under Chapter 32 of the Texas Civil Practice and Remedies Code. GTE also filed a motion for judgment not withstanding the verdict and for new trial. The trial court denied these motions. GTE appealed, and the Pascouets cross-appealed.

Issues Presented

GTE presents the following issues: (1) whether the Federal Telecommunications Act of 1996 ("FTA") preempts the Pascouets' common-law claims for nuisance and invasion of privacy; (2) whether the trial court abused its discretion by admitting evidence regarding Bunker Hill's zoning ordinances; (3) whether the trial court abused its discretion by admitting the expert testimony of Michael Coker; (4) whether the evidence was legally and factually sufficient to support the jury's nuisance findings; (5) whether the evidence was legally and factually sufficient to support the jury's invasion-of-privacy findings; (6) whether GTE was entitled to a pro-rata settlement credit due to the Pascouets' settlement with Bunker Hill. By their cross-appeal, the Pascouets present the following issues: (1) whether the trial court abused its discretion by denying the Pascouets' request for a permanent injunction; and (2) whether the trial court erred by denying the Pascouets' request that it find and declare certain alleged violations of the Bunker Hill zoning ordinances.

Does the FTA Preempt the Pascouets' Common-Law Claims?

In its first issue, GTE argues that we should reverse and render judgment that the Pascouets take nothing because the Pascouets' claims are impliedly preempted by the FTA. The parties have not cited and we have not found any federal or state cases dealing with the specific preemption issue raised by GTE. We hold that the FTA does not preempt the Pascouets' claims in this case.

Under the Supremacy Clause of the ...