Rankin v. Fpl Energy, LLC

• Decision Date: 21 August 2008
• Docket Number: No. 11-07-00074-CV.,11-07-00074-CV.
• Parties: Dale RANKIN et al, Appellants, v. FPL ENERGY, LLC et al, Appellees.
• Court: Texas Court of Appeals

266 S.W.3d 506

Dale RANKIN et al, Appellants, v. FPL ENERGY, LLC et al, Appellees.

No. 11-07-00074-CV.

Court of Appeals of Texas, Eastland.

August 21, 2008.

Steven E. Thompson, Steven E. Thompson & Associates, Houston, Kevin J. Keith, Hiersche, Hayward, Drakelye & Urbach, Addison, for Appellants.

Jeremy A. Fielding, Michael P. Lynn, John T. Cox III, Lynn Tillotson & Pinker, LLP., Dallas, for Appellees.

Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

RICK STRANGE, Justice.

Several individuals and one corporation¹ (Plaintiffs) filed suit against FPL Energy, LLC; FPL Energy Horse Hollow Wind, LP; FPL Energy Horse Hollow Wind, LP, LLC; FPL Energy Horse Hollow Wind GP, LLC; FPL Energy Callahan Wind Group, LLC; and FPL Energy Callahan, LP (FPL).² Plaintiffs sought injunctive relief and asserted public and private nuisance claims relating to the construction and operation of the Horse Hollow Wind Farm in southwest Taylor County. FPL filed a motion for partial summary judgment directed at Plaintiffs' nuisance claims, and the trial court granted it in part dismissing Plaintiffs' claims to the extent they were based on the wind farm's visual impact. Plaintiffs' remaining private nuisance claim proceeded to trial. The jury found against Plaintiffs, and the trial court entered a take-nothing judgment.

I. Issues on Appeal

Plaintiffs attack the trial court's judgment with three issues. They contend that the trial court erred by granting FPL's motion for partial summary judgment, that the trial court erred by excluding their fact rebuttal witnesses, and that the trial court erred by excluding expert rebuttal testimony. FPL asserts one cross-issue, contending that the trial court erred when it did not assess all taxable costs against Plaintiffs.

II. Analysis

A. FPL's Motion for Partial Summary Judgment.

FPL asked the trial court to dismiss Plaintiffs' public and private nuisance claims contending that Plaintiffs could not assert a nuisance claim based upon the wind farm's aesthetical impact and that Plaintiffs' deposition testimony precluded their remaining nuisance claims. The trial court granted the motion in part and dismissed "Plaintiffs' claims of public and private nuisance asserted in whole or in part on the basis of any alleged aesthetic impact of [FPL's] activities." The trial court later included an instruction in the jury charge that excluded their consideration of the wind farm's aesthetic impact.³

1. Standard of Review.

Plaintiffs characterize FPL's motion for summary judgment as a motion on the pleadings. FPL, however, attached twenty-one exhibits to its motion and utilized this evidence to define the issues. We will, therefore, treat it as a traditional motion for summary judgment and will apply the well-recognized standard of review. Questions of law are reviewed de novo. St. Paul Ins. Co. v. Tex. Dep't of Transp., 999 S.W.2d 881, 884 (Tex.App.-Austin 1999, pet. denied). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

2. Texas Nuisance Law.

Texas law defines "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." Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex.2004). Nuisance claims are frequently described as a "non-trespassory invasion of another's interest in the use and enjoyment of land." See, e.g., GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).⁴ But despite this exclusionary description, in some instances an action can be both a trespass and a nuisance. See, e.g., Allen v. Virginia Hill Water Supply Corp., 609 S.W.2d 633, 636 (Tex.Civ.App.-Tyler 1980, no writ) (continuing encroachment upon the land of an adjoining owner by either erecting or maintaining a building without any right to do so is a trespass and a private nuisance).

In practice, successful nuisance actions typically involve an invasion of a plaintiff's property by light, sound, odor, or foreign substance. For example, in Pascouet, floodlights that illuminated the plaintiffs' backyard all night and noisy air conditioners that interfered with normal conversation in the backyard, that could be heard indoors, and that interrupted plaintiffs' sleep constituted a nuisance. 61 S.W.3d at 616. In Bates, the court noted that foul odors, dust, noise, and bright lights could create a nuisance. 147 S.W.3d at 269. In Lamesa Coop. Gin v. Peltier, 342 S.W.2d 613 (Tex.Civ.App.-Eastland 1961, writ ref'd n.r.e.), a cotton gin's operations were a nuisance because of its loud noises and bright lights that could be seen and heard on plaintiff's property and because of the dust, lint, and cotton burrs that would be carried there.

Texas courts have not found a nuisance merely because of aesthetical-based complaints. In Shamburger v. Scheurrer, 198 S.W. 1069 (Tex.Civ.App.-Fort Worth 1917, no writ), the defendant began construction of a lumberyard in a residential neighborhood. Neighboring homeowners filed suit and contended that the lumberyard would be unsightly, unseemly, and have ugly buildings and structures. The court held that this did not constitute a nuisance, writing:

The injury or annoyance which warrants relief against an alleged nuisance must be of a real and substantial character, and such as impairs the ordinary enjoyment, physically, of the property within its sphere; for if the injury or inconvenience be merely theoretical, or if it be slight or trivial, or fanciful, or one of mere delicacy or fastidiousness, there is no nuisance in a legal sense. Thus the law will not declare a thing a nuisance because it is unsightly or disfigured, because it is not in a proper or suitable condition, or because it is unpleasant to the eye and a violation of the rules of propriety and good taste, for the law does not cater to men's tastes or consult their convenience merely, but only guards and upholds their material rights, and shields them from unwarrantable invasion.

Id. at 1071-72. In Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex.Civ. App.-Dallas 1925, no writ), the court found that a garage being built for residents of an apartment complex was not a nuisance because "[m]atters that annoy by being disagreeable, unsightly, and undesirable are not nuisances simply because they may to some extent affect the value of property." In Jones v. Highland Mem'l Park, 242 S.W.2d 250, 253 (Tex.Civ.App.-San Antonio 1951, no writ), the court held that the construction of a cemetery on adjacent property did not constitute a nuisance, noting: "However cheerless or disagreeable the view of the cemetery in question may be to appellees, and no matter what unpleasant or melancholy thoughts the same may awaken, no reason is thereby shown why appellants should be restrained from making such use of their property."

3. Plaintiffs' Nuisance Claim.

Plaintiffs advance several arguments why this caselaw does not preclude their private nuisance action. First, they argue that aesthetics may be considered as one of the conditions that creates a nuisance. Plaintiffs concede that, if their only complaint is subjectively not liking the wind turbines' appearance, no nuisance action exists. But, they contend that the jury was entitled to consider the wind farm's visual impact in connection with other testimony such as: the turbines' blinking lights, the shadow flicker affect they create early in the morning and late at night, and their operational noises to determine if it was a nuisance. Second, they note that nuisance law is dynamic and fact-specific; therefore, they contend that older case holdings should not be blindly followed without considering intervening societal changes. Third, nuisance claims should be viewed through the prism of a person of ordinary sensibilities and caselaw involving unreasonable plaintiffs asserting subjective complaints should be considered accordingly.

FPL responds that the trial court ruled correctly because no Texas court has ever recognized a nuisance claim based upon aesthetical complaints and notes that, in fact, numerous courts have specifically rejected the premises behind such a claim. See, e.g, Dallas Land & Loan, 276 S.W. at 474; Shamburger, 198 S.W. at 1071 ("the law will not declare a thing a nuisance because ... it is unpleasant to the eye"). FPL argues that sound public policy supports such a rule because notions of beauty or unsightliness are necessarily subjective in nature and that giving someone an aesthetic veto over a neighbor's use of his land would be a recipe for legal chaos. Finally, FPL argues that the wind farm does not prevent any of the plaintiffs from using their property but at most involves an emotional reaction to the sight of the wind turbines and contends that an emotional reaction alone is insufficient to sustain a nuisance claim.

When FPL moved for summary judgment, Plaintiffs presented affidavits from the plaintiffs to establish that the wind farm was a nuisance. Plaintiffs' affidavits personalize individual objections to the wind farm's presence and to the use of wind turbines for generating electricity commercially. They also express a consistent theme: the presence of numerous 400-foot-tall wind turbines has permanently and significantly diminished the area's scenic beauty and, with it, the enjoyment of their property. So...