1717 Bissonnet, L.L.C. v. Penelope Loughhead

ACCEPTED
14-14-00589-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/8/2015 6:57:49 PM
CHRISTOPHER PRINE
CLERK

NO. 14-14-00589-CV
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT 4/8/2015 6:57:49 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk

1717 BISSONNET, L.L.C.,
Defendant/Appellant/Cross-Appellee

vs.
PENELOPE LOUGHHEAD, ET AL.,
Plaintiffs/Appellees/Cross-Appellants

________________________________________________________
On Appeal from Case Number 2013-25155,
in the 157th Judicial District Court, Harris County, Texas

BRIEF OF PENELOPE LOUGHEAD, ET AL., AS CROSS APPELLANTS

REYNOLDS FRIZZELL LLP
Jean C. Frizzell
State Bar No: 07484650
Jeremy Doyle
State Bar No: 24012553
Solace K. Southwick
State Bar No. 11522150
1100 Louisiana Street, Suite 3500
Houston, Texas 77002
Telephone: (713) 485-7200
Facsimile: (713) 485-7250
jfrizzell@reynoldsfrizzell.com
jdoyle@reynoldsfrizzell.com
ssouthwick@reynoldsfrizzell.com
ATTORNEYS FOR
PLAINTIFFS/APPELLEES/CROSS-
APPELLANTS

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

In compliance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
Appellees/Cross-Appellants provide the following list of the parties to the appeal at
issue, and the names and addresses of trial and appellate counsel for the parties:

PLAINTIFFS/APPELLEES/CROSS-APPELLANTS:
Luong Nguyen Plaintiffs/Appellees
Lam Nguyen and Katherine Hoang, jointly
Jamie Flatt
Penelope Loughhead
Donald Verplanken
Norman and Suannah Rund, jointly
Achim and Diana Bell, jointly
Jeanne Meis
Mary Van Dyke
Ralph and Leslie Miller, jointly
Yin and Surong Zhang, jointly
Martha Gariepy
Stephen Roberts
Suzanne Powell
Michelle Jennings and Michael Tetzlaff, jointly
James and Allison Clifton, jointly
Kimberly Bell
Richard and Mary Baraniuk, jointly
Kenneth Reusser and Xanthi Couroucli, jointly
Earle Martin
Dinzel Graves
Sarah Morian
Michael Clark
Marc Favre-Massartic
Raja Gupta
Laura Lee & Dico Hassad
Peter & Adriana Oliver
Ed Follis
Frank & Jeanette Stokes
Steven Lin
Yi-Wen Michelle Pu
Howard Epps
Phyllis Epps
i
COUNSEL FOR PLAINTIFFS/APPELLEES/CROSS-APPELLANTS:

REYNOLDS FRIZZELL LLP
Jean C. Frizzell
Jeremy Doyle
Solace K. Southwick
James A. Schuelke
1100 Louisiana Street, Suite 3500
Houston, Texas 77002
Telephone: (713) 485-7200
Facsimile: (713) 485-7250
jfrizzell@reynoldsfrizzell.com
jdoyle@reynoldsfrizzell.com
ssouthwick@reynoldsfrizzell.com
jschuelke@reynoldsfrizzell.com

DEFENDANT/APPELLANT/CROSS-APPELLEE:
1717 BISSONNET, LLC

COUNSEL FOR DEFENDANT/APPELLANT/CROSS-APPELLEE:

VIADA & STRAYER
Ramón G. Viada III
17 Swallow Tail Court
The Woodlands, Texas 77381
Telephone: (281) 419-6338
Facsimile: (281) 419-8137
rayviada@viadastrayer.com

WILSON, CRIBBS & GOREN, P.C.
H. Fred Cook
2500 Fannin Street
Houston, Texas 77002
Telephone: (713) 222-9000
Facsimile: (713) 229-8824
hfcook@wcglaw.net

ii
 TABLE OF CONTENTS

Page(s)

IDENTITY OF PARTIES AND COUNSEL .............................................................i

TABLE OF CONTENTS ...................................................................................... i - v

TABLE OF AUTHORITIES ....................................................................................vi

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUE PRESENTED .................................................................................................3

STATEMENT OF FACTS ........................................................................................3

A. The Project is Announced, and the City and Neighborhood React ..... 3

B. The City and Buckhead Reach a Settlement ......................................... 7

C. The Hunt investment ............................................................................. 8

D. The Construction Issues Committee and the Pre-Suit Effort to
Obtain Information ............................................................................... 9

E. Plaintiffs file suit, and the suit proceeds quickly to trial .....................11

F. The evidence at trial demonstrated that the Developer acted
in bad faith in its dealings with the City of Houston, the
residents of the neighborhood, the Court ............................................14

1. Buckhead’s internal emails demonstrate that it never
intended to comply with the Settlement Agreement ......................14

a. Buckhead artificially manipulated the trip count to make
it look lower................................................................................14

b. Buckhead planned to circumvent the green screen
requirement .................................................................................16

iii
 2. Buckhead’s internal emails demonstrated a general willingness
to submit false documents to the City ...........................................17

3. Morgan testified that he did not keep his promises .......................18

4. The Developer engaged in sharp trial practices, including
introducing misleading testimony and last-minute production of
highly misleading evidence ............................................................19

G. The jury finds unanimously that the Ashby High Rise
will be a nuisance if built ....................................................................24

H. In spite of the jury’s unanimous finding of nuisance, and in
spite of the evidence of the Developer’s willingness to mislead
the City and the neighborhood, the trial court denied
Plaintiffs’ request for permanent injunction .......................................25

SUMMARY OF ARGUMENT ...............................................................................25

ARGUMENT ...........................................................................................................26

A. The trial court erred in balancing the equities.....................................28

1. The trial court improperly penalized Plaintiffs for failing to
prove what would not constitute a nuisance .............................28
2. The trial court’s determination that an injunction would harm
the Developer is not supported by the evidence .......................32

3. The Trial Court’s determination that an injunction would cause
harm to the community is not supported by the evidence ........ 33

4. The Trial Court ignored the evidence that the Developer misled
the City to obtain permits for the project ..................................35

5. The Trial Court’s determination that Plaintiffs delayed in
bringing this lawsuit is not supported by the evidence ............. 36

iv
 B. The Trial Court erred in holding that Plaintiffs have an adequate
remedy at law ......................................................................................38
C. The Trial Court erred in penalizing Plaintiffs for the actions of
anonymous protesters ..........................................................................39

CONCLUSION AND PRAYER .............................................................................39

CERTIFICATION OF COMPLIANCE ..................................................................40

CERTIFICATE OF SERVICE ................................................................................41

APPENDIX

1. Trial Court’s Judgment
2. Trial Court’s Opinion
3. Jury Charge
4. Plaintiff’s Exhibit 361 – Building Impact Categories
5. Plaintiff’s Exhibit 363 – Damage Impact to Homes

v
 TABLE OF AUTHORITIES

CASES PAGE

Assembly of God Church of Tahoka v. Bradley
196 S.W.2d 696 (Tex. Civ. App.—Amarillo 1946, no writ) ........................27

Champion Forest Baptist Church v. Rowe
1987 WL 5188 (Tex. App. – Houston [1st Dist.] Jan. 8, 1987, no writ) . 30-31

Freedman v. Briarcroft Property Owners, Inc.,
776 S.W.2d 212 (Tex. App.—Houston [14th Dist.] 1989, writ denied) ..26, 30

In re American Homestar of Lancaster, Inc.
50 S.W.3d 480 (Tex. 2001) ...........................................................................27

Pool v. River Bend Ranch, LLC
346 S.W.3d 853 (Tex. App.—Tyler 2011, pet. denied) ................................29

Rowe v. Moore
756 S.W.2d 117(Tex. App.—Houston [1st Dist.] 1988, no writ) ..................30

Spiller v. Lyons
737 S.W.2d 29 (Tex. App.—Houston [14th Dist.] 1987, no writ) ................. 26

Stein v. Killough
53 S.W.3d 36 (Tex. App.—San Antonio 2001, no pet.) ...............................38

Roberts v. Williamson
111 S.W.3d 113 (Tex. 2003) .........................................................................34

STATUTES

TEX. CIV. PRAC. & REM. CODE § 65.011(5) .......................................................27, 38

Tex. R. Civ. P. 13 .....................................................................................................37

vi
 STATEMENT OF THE CASE

Penelope Loughhead, together with 44 of her neighbors, who are the owners

of 30 homes in the Southampton and Boulevard Oaks neighborhoods in Houston

(“Plaintiffs”), sued 1717 Bissonnet, LLC (the “Developers”), a real estate

development entity that owns a 1.6 acre tract of land in a residential neighborhood.

The Developers plan to construct a massive, 21-story mixed-use development on

that property (the “Ashby High Rise”). Plaintiffs alleged that the Ashby High Rise,

if built, will constitute a nuisance. 1 Plaintiffs sought a permanent injunction and, in

the alternative, damages.2

The 157th Judicial District Court, Judge Randy Wilson presiding, conducted a

several-week jury trial. At the close of the evidence, the trial court submitted a

charge containing two questions that closely tracked the Texas Pattern Jury Charge

for a nuisance claim. 3 The first question asked whether the Ashby High Rise would

be a nuisance, if built; the second question inquired about damages.4 The jury

rendered a unanimous verdict finding that the development would constitute a

nuisance as to 20 of the 30 plaintiff households. The jury awarded damages totaling

1
Clerk’s Record (“CR”) at 417-433.
2
Id.
3
Id. at 730-40.
4
Id.
1
approximately $1.6 million, based on lost market value of the Plaintiffs’ homes and

loss of use and enjoyment resulting from the nuisance. 5

After the verdict, the trial court heard additional testimony and argument

relating to Plaintiffs’ request for a permanent injunction.6 The court denied the

requested injunction with a written opinion and entered judgment awarding only that

portion of the damages relating to lost market value. 7

The Developers appealed the judgment and the award of damages, and

Plaintiffs cross-appealed the trial court’s denial of permanent injunctive relief in

light of the jury’s finding of nuisance.

STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs submit that the common law claim of nuisance is well-established,

and the trial court submitted jury questions and instructions that are contained in and

fully supported by the Texas Pattern Jury Charge. Nevertheless, this appeal and

cross-appeal involve complicated questions of the proper balance of equities when

a construction project will cause physical damage to neighboring homes, among

other impacts, and a unanimous jury determines that the project will constitute a

5
Id.
6
See Reporter’s Record, Volumes 17 and 18. Citations to the Reporter’s Record are formatted
“RR” followed by the volume number, the page number and the line number. For example, RR1
1:1-10 would refer to Reporter’s Record, Volume 1, page 1, lines 1 through 10.
7
CR 1271-74.
2
nuisance if it is built. Plaintiffs request oral argument because they believe that it

will assist the Court in resolving these questions.

ISSUE PRESENTED

The following issue is presented by this cross-appeal:

Given the jury’s finding that the Ashby High Rise would constitute a
nuisance harming Plaintiffs’ property rights as neighboring homeowners,
did the trial court abuse its discretion in denying a permanent injunction
against the construction of the Ashby High Rise when the court’s analysis
imposed a burden on Plaintiffs beyond that required by Texas law, made
findings that are not supported by the evidence, and ignored the substantial
evidence of wrongdoing?

STATEMENT OF FACTS
A. The Project is Announced, and the City and the Neighborhoods React.

In the summer of 2006, an entity known as Buckhead Investment Partners,

LLC (“Buckhead”),8 contracted to purchase the entity that owned a 1.6 acre lot at

the corner of Bissonnet Street and Ashby Street. 9 At the time of the purchase, the

property was the site of the Maryland Manor apartments, a two-story apartment

complex with 67 apartments. 10 By the end of the first quarter of 2007, Buckhead had

8
Matthew Morgan and Kevin Kirton are principals in and sole owners of Buckhead. See, e.g.,
DX 104. Each of their wives served as officers in the entity. Id.
9
RR3 101:6-12; DX 131; RR10 227:20-228:17.
10
DX 131; R3 275:19-25; 292:16-19.
3
developed a plan to replace the two-story apartment structure on the 1.6 acre

property with a high rise mixed-use building. 11

Buckhead’s principals admitted that from the earliest stages of development

they knew the planned high rise would constitute “a departure in scale from the

surrounding properties.”12 Morgan and Kirton fully anticipated heated

neighborhood opposition, believing that the likelihood of such opposition was

“great.” 13

Morgan and Kirton’s prediction of neighborhood opposition was well-

founded. As soon as Buckhead publicly announced its plan to construct a 23-story14

multi-use high rise on the site, many residents of the neighborhood began to voice

their objections. DX 34. The trial court aptly described the neighborhood

opposition as “rapid and intense.”15 A neighborhood meeting in 2007, shortly after

Buckhead announced the project, drew over 500 people, including four city officials,

and four representatives of other city and state officials.16 Two Houston mayors

11
RR3 89:12-25.
12
DX 122.
13
Id.; RR3 91:5-10.
14
The original plan was to build a 23-story structure, see, e.g., DX 122, but the size was
ultimately reduced pursuant to a settlement with the City of Houston to 21 stories.
15
CR 1199.
16
RR3, 98: 8-15
4
weighed in against the project, Mayor Bill White and Mayor Annise Parker.17 A

neighborhood group called “Stop Ashby High Rise” formed. 18

Although the Developer attempted during trial to portray the neighborhood

opposition group as zealots who simply opposed all progress, the evidence showed

that the group made efforts from very early on to resolve the dispute amicably while

encouraging development and protecting the Buckhead’s investment. For example,

on February 11, 2008, Stop Ashby High Rise sent a letter to Buckhead’s principals,

Morgan and Kirton. 19 The letter indicates that the ideas it contains are “fully

endorsed” by the group, which is “a joint committee of the Boulevard Oaks Civic

Association and the Southampton Civic Club, Inc.”20 The letter proposes

alternatives to the 23-story proposed high rise, and indicates a willingness to identify

equity or debt investors who might support one of the alternative plans. 21 Buckhead

rejected all proposals and declined to discuss them further.22

After rebuffing the neighborhood effort to discuss alternatives, Buckhead

began the process of seeking the necessary approvals from the City of Houston for

its proposed structure. Buckhead first submitted for City approval its traffic impact

17
RR3 138:1-8; DX 50.
18
CR 1200.
19
DX 107.
20
Id.
21
Id.
22
RR 11 141:14-15 R11 139:24-140:15.

5
analysis.23 The Buckhead traffic analysis showed that the project would generate a

total of 184 peak hour automobile trips onto and off of Bissonnet—the so-called

“trip count.” 24 The City initially approved the analysis Buckhead submitted, but it

very soon after withdrew that approval.25 In denying the requested approval, the

City determined that the project would create excessive interference and have an

extraordinary impact on the public use of streets and public safety. 26

In August, 2009, Buckhead submitted a revised application under protest. 27

The revised application reflected a reduced trip count of 120, 28 and the City approved

the revised project. 29 Buckhead was not satisfied with this approval and continued

to press for approval of its original application, despite the extraordinary impact that

it would have on the neighborhood streets.30 Buckhead appealed the City’s denial of

its original project to the City’s appeal board and then the City Council, but both

refused to set aside the decision.

23
DX 45.
24
DX 6. Kirton described “trip generation” as “the number of trips from the project that is
measured at the –either the a.m. peak or the p.m. peak time, the time that the surrounding street
system is most heavily used typically: rush hour, morning traffic rush hour, evening traffic.” RR11
40:22-41:4; see also CR 1200 n. 2.
25
Id.; DX 46.
26
RR3 147:13-149:23.
27
CR 1200 & n. 2.
28
Id.
29
Id.
30
Id.
6
 On April 9, 2010, Buckhead brought suit in Harris County District Court

against the City, seeking $40 million in alleged damages resulting from the City’s

refusal to approve its original application. 31 The City removed the case to federal

court. The primary issue in the case was whether the City had authority by virtue of

its so-called “driveway ordinance” to deny Buckhead’s application. 32 The traffic

impact of the proposed Ashby High Rise was the central focus of the case.

B. The City and Buckhead Reach a Settlement.

After Buckhead’s lawsuit had been pending for nearly two years, the City and

Buckhead agreed to a settlement. The Settlement Agreement between Buckhead and

the City of Houston, dated February 29, 2012, (“Settlement Agreement”) includes a

maximum trip count that the proposed project could not exceed. 33 The Settlement

Agreement also provides that the project will: (1) be a 21-story residential or mixed-

use residential and commercial development, with 10,075 square feet of restaurant

use; (2) contain a pedestrian plaza will be constructed in front of the project; (3) not

create in excess of certain maximum traffic counts; (4) include a green screen must

be constructed on the south and east walls of the parking garage; (5) use lighting that

is covered or directed away from neighboring residences; and (6) employ noise

31
RR3 146:21-147:22.
32
Id.
33
RR3 157:3-9; PX 63; DX 9. The agreement actually specifies no more than 104 net p.m. peak
hour trips, including trips for internal capture, or 115 net p.m. peak hour trips if credits are not
taken. RR11 44:13-17. The availability of credits is discussed in greater detail infra.
7
mitigation procedures. 34 For its part, the City agreed that it would approve permits

for a project that met the Settlement Agreement criteria.35

C. The Hunt investment.

By September 2011, Buckhead had entered a memorandum of understanding

with an El Paso-based entity, Hunt SPV, L.L.C. (“Hunt”), for Hunt to become a

majority owner of the entity that owned the property. The agreement between Hunt

and Buckhead closed in August of 2012, and Hunt became a 90 percent limited

partner interest in the entity known as 1717 Bissonnet, L.L.C. 36 Hunt SPV L.L.C.,

an El Paso-based real estate investment entity, owns a 90-percent limited partner

interest in 1717 Bissonnet. RR 3, 79:7-20.

The terms of Hunt’s investment included a $3 million payment to Kirton and

Morgan. 37 Kirton and Morgan remained as the managing members and owners of

Buckhead, the general partner of the managing member entity that controls 1717

Bissonnet, LLC. 38 The documentation of the Hunt investment makes clear that the

investment was made with full knowledge and understanding of the neighborhood

opposition to the project.39

34
DX 9.
35
Id.
36
RR3 79:2-11.
37
RR 17 88:14-18.
38
See e.g., DX 104; RR3 78:24-79:11
39
CR 904.
8
 D. The Construction Issues Committee and the Pre-Suit Effort to Obtain
Information.

During the negotiations of the Settlement Agreement, the City suggested the

creation of a Construction Issues Committee (“CIC”) that was to meet with the

Developer to obtain information regarding the project as it moved forward. The City

requested that the Developers agree to participate in the CIC, which was to consist

of representatives of the Developer, the neighborhood residents, and the City to

identify construction-related issues. 40 The Developer agreed to participate in the

CIC to “show [its] good faith to work with the residents to minimize the amount of

inconvenience during construction. 41 As will be discussed in greater detail below,

Morgan testified that the CIC process turned out to be a bit of a sham. 42 In any event,

representatives of the residents and the Developer participated in the CIC process,

and in the early summer of 2012, conducted their first meeting. 43

At the second meeting, on September 12, 2012, the Developers introduced

Linbeck Construction Company as general contractor, and they distributed

architectural renderings, but not plans.44 A representative of the City “remind[ed]

the developers that the site is limited to one restaurant pursuant to the Settlement

40
RR3 189:20-25; 190:3-10.
41
RR3 190:6-10.
42
RR3 184:1-8.
43
PX 62, 73, 79, 115, 177
44
PX 115.
9
Agreement.” 45 The following meeting, on October 11, included a report from

Morgan that “the developer had submitted applications for various permits to the

[City], and those applications had been reviewed and returned by the [City] with

comments.” 46 In other words, the CIC meetings indicated that the permitting process

with the City remained substantially incomplete. The City did not issue its approval

for the foundation permit until January 17, 2013. 47 The final building permit issued

on March 27, 2013.48

Throughout this entire time period and the CIC process, the Developer did not

provide access to detailed information about the project, such as plans and

specifications. The residents were forced to seek that information elsewhere. One

resident, James Vick, filed open records requests with the City, which were denied.49

The Developer likewise denied an oral request for construction documents, with the

suggestion that the Developer would “be happy to reconsider [the request] once

building permits for the project have been purchased from the City of Houston.”50

Both Morgan and Kirton testified that they refused to provide the residents with

copies of the construction documents because they feared that doing so would trigger

45
PX 177.
46
Id.
47
Id.
48
CR 1103-1112.
49
CR 1095-98.
50
PX 115
10
a lawsuit.51 Without the construction documents, the neighborhood residents could

not assess how and to what extent the Ashby High Rise would impact their property

rights.

On January 14, 2013, Penelope Loughhead filed an action under Rule 202 of

the Texas Rules of Civil Procedure to obtain pre-suit discovery about the

construction plans for the Ashby High Rise. 52 The trial court ordered production of

certain construction information. 53

E. Plaintiffs file suit, and the suit proceeds quickly to trial.

On May 1, 2013, thirty-four days after the Developer received its building

permit from the City of Houston, six plaintiffs filed suit seeking damages and a

permanent injunction against the project. 54 The Harris County Administrative Judge

transferred the suit to the 157th Court, because it had handled the Rule 202 action.55

After an accelerated discovery period, trial commenced on November 19, 2013.

At trial, the Plaintiffs put on substantial evidence that the Ashby High Rise

would be a nuisance if constructed. Earle Martin, a long-time resident, testified

regarding how the construction and presence of the building feet away from his home

would affect him. 56 He testified about the atmosphere of the neighborhood, the spirit

51
RR3 242:17-243:2; RR11 178:7-13.
52
CR 1201; see also RR3 242:19-243:2.
53
Id.
54
CR 9-19.
55
CR 20.
56
Testimony commences at RR3 250:20.
11
of community and the importance of home and neighborhood. 57 Martin testified

regarding his concerns about traffic, and the dangers posed to small children. 58 He

further testified about his fear of foundation damage, 59 the looming height of the

building, and the shadows that it will cast.60

A number of other Plaintiffs testified similarly, including Jamie Flatt,

Adrianna Botto Oliver, Richard Baraniuk, Laura Lee, Phillis Epps, Ken Miller,

Michelle Jennings, Jeanne Meis, Surong Zhang, Steven Lin, Raja Gupta, Achim

Bell, Ed Follis, Suzanne Powell, Normand Rund, and Scott Van Dyke. 61 Those

plaintiffs testified regarding traffic, light, noise, shadow, foundation damages, and

the general presence of an enormous High Rise in their residential neighborhood.

Plaintiffs also offered the testimony of certain expert witnesses regarding the

interference with neighboring property rights that the Ashby High Rise would cause.

Most strikingly, Roderick Ellman – a geotechnical expert – analyzed the soils of the

Ashby High Rise site and the detailed plans for the massive structure and its

foundation, which is designed to include over 600 auger cast piles62 driven between

57
See, e.g. RR3 259:14-260:16.
58
RR3 262:1-266:4.
59
RR3 276:19-24
60
RR3 279:4-15.
61
RR6 150:1-287:25; RR7 8:18-292:3; RR8 6:23-122:12.
62
Ellman described an “auger cast pile” as “basically like a large corkscrew . . . that gets screwed
into the ground. And once it gets to the bottom of wherever – the depth it needs to be, there is a
hollow pipe down the center. Concrete is pumped out the tip. They reverse the auger and screw
it out and replace the ground with concrete as they bring it up. Sometimes there is a reinforcement
12
80 and 100 feet into the soil.63 Ellman’s calculations and analysis showed that

because of the size of the Ashby High Rise, its mass, the small property on which it

will be situated, and the fact that it will sit as close as 10 feet from the adjacent

properties, the Ashby High Rise will cause physical damage to the foundation and

structures of a number of adjacent homes, including severe damage to certain homes,

all as a result of the soil settlement that the structure will cause.

Specifically, Ellman testified that certain of the neighboring homes can expect

to suffer “severe” to “very severe” damage from construction of the Ashby High

Rise. 64 “Severe” to “very severe” damage means damage that will require extensive

repair work, including replacing sections of walls, repairing distorted window

frames, sloped floors, bearings, and beams. The damage can also give rise to leaking

water and sewer lines and even complete disruption of those lines. 65 Ellman testified

that other homes can expect to see moderate damage such as cracked brickwork,

problems with doors and windows, and utility pipes fracturing. 66

that’s added after they concrete to the top. They will force in a reinforcing cage or some other
type of device like that.” CR6 30:9-19.
63
See Ellman’s testimony starting at RR6 26:9.
64
RR6 66:22-15; see also PX 361; PX 363, which were admitted into evidence and appear on the
index of exhibits supplied in the Reporter’s Record, but, along with a number of other exhibits,
are not reproduced in the Reporter’s Record. Counsel for Plaintiffs has contacted the court reporter
in an effort to rectify that problem, but in the meantime has provided copies of the two exhibits in
the Appendix to this brief.
65
Id.
66
RR6 68:16-11.
13
 As the trial developed, another theme began to take shape. In addition to

evidence regarding the impact that the Ashby High Rise would have on the residents’

property rights – including causing physical damage to a number of homes –

substantial evidence was adduced that the Developer engaged in misleading tactics

to obtain permits for the project and in seeking to win the trial.

F. The evidence at trial demonstrated that the Developer acted in bad faith
in its dealings with the City of Houston, the residents of the
neighborhood, and the Court.

1. Buckhead’s internal emails demonstrate that it never intended to comply
with the Settlement Agreement.

The evidence at trial demonstrated that Buckhead never intended to comply

with the terms of the Settlement Agreement. Buckhead’s internal emails reflect that

it intended to flout at least two of the terms of the Settlement Agreement while

fooling the City into believing that it was in compliance—the trip count requirement

and the green screen requirement.

a. Buckhead artificially manipulated the trip count to make it look lower.

The evidence conclusively showed that in preparing submissions to the City,

Buckhead deceived the City into believing that the trip count would be compliant

with the Settlement Agreement by misrepresenting the number of restaurants

planned for its project. The number and size of restaurants is critically important to

the trip count because each restaurant generates its own unique trips, and traffic

engineers count those trips in a particular way. The trip-count calculation for
14
restaurants allows for a deduction from the count for a certain percentage of “pass-

by trips,” 67 but to qualify for a “pass-by” deduction, a restaurant must be more than

6500 square feet.68 Multiple restaurants create a higher trip count. In other words,

the number and size of the restaurants that the Ashby High Rise will contain is

crucial to determining the trip-count.

Buckhead well understood the import of the number and size of restaurants to

the trip count and decided to deceive the City about the traffic impact of the project

during the permitting process. In an email exchange between Matthew Morgan and

his engineer regarding a submission to the City, Morgan stated:

Ben,

The idea is to telegraph as FEW restaurants as possible (i.e. no more than one).
The settlement with the City limits us based on traffic trips and our trip
generation calculation assumes we’ll operate a single 10K SF restaurant.
Now, a 10K SF restaurant is not practical or feasible, so we’ve always
assumed we’d configure the shell space into 2 or maybe even 3 separate food
service operations of different sorts. However, our traffic engineer has
suggested that if we call it more than a single operation, the way the traffic
math works might push us over the limit . . . But we still want to provision
both spaces for the possibility of two kitchens to maintain as much flexibility
as possible without suggesting to the City (and especially the lawyers all
working for the NIMBY opposition group) that we’re somehow exceeding the
limit placed on us by the settlement terms. 69

67
A “pass-by” trip is the term a traffic engineer gives to a stop on the way to another destination.
The Developer’s traffic expert testified as an example that he sometimes stops to eat at the Raven
restaurant on his way back from the Museum of Fine Arts in Houston. R11 242:18-243:4. Because
his car would have been on the road anyway, the trip does not add to the overall count, and it
qualifies for a deduction from a traffic count relating to Raven as a “pass-by” trip. Id.
68
RR 12:30:3-14.
69
PX 63 (emphasis original); see also R11 171:3-12; R11 172:22-173:9.
15
Morgan openly acknowledged that a single restaurant was neither practical nor

feasible, and Buckhead had no intention of limiting the project to a single restaurant.

But he asked his engineer to submit information to the City that misrepresented

Buckhead’s plan. In his testimony, Kirton confirmed that Morgan’s purpose was to

cause the City to believe that the Ashby High Rise when constructed would have

only one restaurant, although such a configuration was not intended and was neither

practical nor feasible. 70

The misrepresentation regarding the number of restaurants went beyond just

submissions to the City. The Developer’s subterfuge extended to misrepresentations

to its own traffic engineer, who was told there would be a single restaurant. 71 The

traffic engineer testified that the data regarding the restaurant count was crucial to

his analysis.72 When he was shown the construction documents that revealed an

intent to construct 2 restaurants, he agreed that it would have made a difference in

the trip count and would not comply with the Settlement Agreement. 73

b. Buckhead planned to circumvent the green screen requirement.

The evidence revealed a similar effort to escape the terms of the Settlement

Agreement relating to the so-called “green screen.” The Settlement Agreement

70
RR 11 173:2-22.
71
RR12 32:5-25.
72
RR12 33:1-13
73
RR12 36:8-19.
16
requires a green screen, or a vegetative covering like fig ivy on the east and south

sides of the parking garage.74 Part of the purpose of the green screen is to mitigate

the effect of an above-ground parking garage on the neighboring property, and in

particular the car lights in the garage.75

Buckhead has no intention of providing a green screen as contemplated in the

Settlement Agreement. To the contrary, Kirton testified that the Developer is

considering a screen that covered only the surfaces of the walls, and not the openings

in the garage because that was in technical compliance with the wording of the

Settlement Agreement.76 For his part, Morgan was proud that he had included

language in the Settlement Agreement to allow an arguably technical compliance

without fulfilling the purpose of light mitigation. 77 And in the end, the current

construction plan includes no green screen at all.78

2. Buckhead’s internal emails demonstrated a general willingness to submit
false documents to the City.

In addition to the misrepresentations to mask their intent to violate the terms

of the Settlement Agreement, the evidence included internal emails produced by the

Developer that demonstrated a willingness to be submit false documents to the City

to obtain foundation permits. Plaintiffs’ exhibit 64 is an email from Matthew

74
RR11 49:18-25.
75
RR 11 148:1-5.
76
RR 11 148:6-24.
77
PX 77; R11 155:19-159:24.
78
PX 78; R11 152:18-23; PX 138; R11 162:23-163:25
17
Morgan to Kevin Kirton, regarding the resubmission of the foundation permitting

application to the City. The email states in relevant part:

this submission must nevertheless appear credible and convincing to the
City in order to serve its purpose (i.e. we may acknowledge that this
foundation design will not be built, but the City folks must be led to believe
that it will be). I think we’ve all discussed this…”79

The Developer intentionally set out to mislead the City regarding the foundation

design that it intended to use, and it did so in accordance with internal

discussions. Plaintiffs’ exhibit 65 is another email that reinforces the same theme,

in which Morgan states, vis-à-vis the permitting process for the foundation design

that “we’ll never build the design that’s going to be approved.”80

Morgan conceded in his testimony that it would be completely inappropriate

to file a permit for a foundation design that he knew he would not build, and that it

would be inappropriate to try to mislead the City, particularly after the settlement

process.81 Yet, that is precisely what the Developer did.

3. Morgan testified that he did not keep his promises.

As mentioned above, Morgan did not believe that the CIC process was

useful. 82 He insisted that the representations made by the Developer to the

neighborhood residents during those meetings were not “promises.” 83 Morgan

79
PX 64.
80
PX 65.
81
RR3 183:5-14.
82
RR3 184:1-11.
83
RR3 184:12-21.
18
testified that he did not feel bound by the promises made during CIC meetings and

that he is not able to keep every promise he makes. 84 He testified that no matter

what the Developer said at the CIC meetings, it would be able to make changes, and

that the Developer would make whatever changes it deemed necessary and

appropriate. 85 The Developer did not view a series of promises relating to

construction activities, including limited work hours, as binding commitments. 86

4. The Developer engaged in sharp trial practices, including introducing
misleading testimony and last-minute production of highly misleading
evidence.

The Developer’s efforts to mislead and to disguise the truth about the Ashby

High Rise also infected the trial proceedings. Among the most contested issues at

trial was the extent to which the construction of the Ashby High Rise would cause

physical damage to neighboring homes. Plaintiffs submitted detailed expert analysis

and calculations from a well-regarded geotechnical expert –Ellman – showing that

the Ashby High Rise, if constructed as planned, would cause substantial damage to

a number of the neighboring homes. Because the property is so small, and the

footprint of the Ashby High Rise will place the massive structure and its foundation

within 10 feet of the adjacent properties, the weight of the Ashby High Rise will

cause the soil to compress (as all buildings do), which will radiate out to an extent

84
RR3 185:15-24; 194:24-195:7.
85
RR3 190:18-25.
86
RR3 194:9-18.
19
(as all compression does) and will damage the immediately adjacent single family

homes that are only a few feet away.

To address this issue, the Developer relied in part on its geotechnical expert

for the Ashby High Rise project Woodward Lee Vogt. 87 Vogt testified that he

disagreed with Ellman based on his experience, but admitted that in his work on the

project over the many years leading up to trial he never conducted any soil analysis

(which Ellman conducted) to determine if soil compression will be a problem in light

of how uniquely close the massive Ashby High Rise and its foundation will be to

adjacent single family homes.

One of the primary factors for determining the extent that a construction

project will alter or destabilize the surrounding soil is the soil’s “recompression

index.” A higher index suggests a greater destabilizing effect because it means that

the soil will compress more under the weight of a given structure, and in turn that

compression will radiate out further from the structure before it dissipates. Vogt’s

original trial testimony was unequivocal that the recompression index of the soil was

0.02. 88 Vogt testified that he relied on his experience instead of data to conclude

that only a negligible amount of settlement would occur as a result of the placing of

foundational auger cast piles.89 In fact, Vogt testified that he estimated that the

87
RR10 103:4-19
88
RR10 126:4-10.
89
RR10 131:5-14.
20
settlement would be less than an inch without conducting any calculations,

performing any modeling or using any work papers. The only excuse he offered for

not doing any analysis to consider the impact on the neighboring homes is that he

did not know his work would be used in litigation.90

It is not disputed that Vogt conducted no deep-hole borings to test the soil in

the years that this project was being designed, even though he acknowledged that

deep-hole borings are necessary to calculate the actual recompression index of a

particular soil. Without such a deep-hole boring, Ellman relied on studies that

aggregated compression index statistics for the area and soils in the same geological

area as the Ashby High Rise, to estimate the recompression index for this site. Vogt

did nothing and just relied on his “experience.”

The first time the Developer conducted a deep hole boring to test the actual

recompression index was on November 12, 2013, five days before trial commenced,

when the Developer hired a third-party named Tolunay-Wong to conduct such a

test.91 Although the borings were conducted on November 12, at the request of the

Developer, no information or documents relating to this important test were provided

to Plaintiffs at the time. Plaintiffs were not even told that a boring was being done.

90
Id.
91
RR10:7:17-25.
21
 Instead, the Developer waited until late at night, in the middle of trial, to

produce certain, cherry-picked documents that purported to reflect the results of the

borings done by Tolunay-Wong on November 12, 2013 to determine the

recompression index. In fact, those cherry-picked documents were provided to

counsel for Plaintiffs on December 5, at 10:30 p.m. the night before Vogt was to

take the stand.92 The limited documents Plaintiffs received at the eleventh hour

reflected a handwritten calculation of a recompression index of 0.026, which was

consistent with Vogt’s opinion. 93 When the trial court learned of this last-minute

production, he expressed substantial frustration. 94 And when counsel for Plaintiffs

suggested that his “guess” was that the sample actually confirmed Plaintiffs’ expert’s

position that the recompression index was close to 0.06, counsel for the Developer

indicated that it did not.95

It turned out that in this eleventh-hour production, the Developer withheld

from Plaintiffs substantial portions of the results of the borings. Vogt received the

entire report from Tolunay-Wong, but the Developer did not voluntarily provide that

complete report to Plaintiffs. 96 Once Plaintiffs—after substantial effort including a

subpoena—were able to obtain the complete results, they discovered that the results

92
Id.; see also RR15:28-24;29:15; 30:1-25; PX 385; DX 143.
93
RR15 30:15-20; PX 385.
94
RR10:1-9.
95
RR12 12:12-16
96
RR15 33:10-34:3.
22
reflected a recompression index of 0.06, which was consistent with the opinions

of Plaintiffs’ expert and proved that Vogt’s guess that the recompression index

was 0.02 was wrong. 97 As a result of the Developer’s late-produced and woefully

incomplete production of evidence, and its expert’s efforts to conceal the truth, the

trial court was forced to extend the trial schedule to allow for additional discovery. 98

Kevin Kirton’s testimony was similarly troubling. In response to his own

counsel’s question, Kirton testified that he had never received a written offer for

purchase of the property from anyone in the neighborhood that he recognized or

believed was “real.”99 This testimony was highly relevant to whether the Developer

had an opportunity to withdraw from the plan at minimal cost, which the Developer

vehemently denied.

The truth was that the Developer had received a written letter of intent, dated

August 19, 2013, offering to purchase the property at 1717 Bissonnet for $10.5

million. 100 The offer sets forth a full timeline and a suggestion of proper escrow

amounts. 101 The offer was hand – delivered at an in – person meeting by and is

signed by Adam Lambert – a neighborhood resident who testified at trial in support

97
RR15 36:11-19; 37:19-22; 40:25-41:3; 42:25-43:11.
98
RR13:8-21.
99
RR11 195:11-196:3.
100
CR 906-08.
101
Id.
23
of the Developer. 102 The Developer did not even disclose the existence of this offer

until after the trial had ended, in post-verdict discovery. 103 In his post-verdict

deposition, Kirton finally conceded that he “guessed” his answer at trial about the

absence of an offer “was inaccurate.”104

G. The jury finds unanimously that the Ashby High Rise will be a nuisance
if built.

At the close of the evidence, the trial court submitted a jury charge and verdict

form that closely mirrored the nuisance charge contained in the Texas Pattern Jury

Charge. The jury returned a unanimous verdict, finding that the Ashby High Rise

would constitute a nuisance as to 20 of the 30 Plaintiff households.105 After the

verdict, the jury was discharged, and the trial court set an evidentiary hearing for

evidence and testimony relating to the Plaintiffs’ request for injunctive relief.106

After both sides had rested, the Court heard closing arguments. 107 On May 1, 2014,

the trial court rendered a written opinion and order denying the requested permanent

injunction. The court also denied Plaintiffs damages for loss of use and enjoyment

and asked the parties to prepare a judgment awarding Plaintiffs damages for loss of

market value as awarded by the jury.

102
RR17 44:23-7; 47:9-16.
103
RR17 47:17-20.
104
RR17 49:21-22.
105
CR 730-740.
106
RR17.
107
RR18.
24
 H. In spite of the jury’s unanimous finding of nuisance, and in spite of the
evidence of the Developer’s willingness to mislead the City and the
neighborhood, the trial court denied Plaintiffs’ request for permanent
injunction.

In its opinion rejecting Plaintiffs’ request for injunctive relief, the trial court

started by rejecting the Developer’s request for a JNOV, affirming the jury’s finding

of nuisance. The court then went on to disregard the significance of that jury finding

– that Plaintiffs’ property rights are substantially threatened. In refusing to issue a

permanent injunction, the trial court also ignored the substantial evidence relating to

the Developer’s bad faith and misleading actions. The trial court instead overstated

the problems attendant to tailoring injunctive relief, the harm that an injunction

would cause the Developer, the Plaintiffs’ alleged delay in filing suit, and even

suggested in the absence of any supporting evidence that the conduct of unknown

anonymous protesters should weigh against the granting of an injunction. Because

Plaintiffs believe that the trial court erred in refusing the injunction, they have

brought this appeal.

SUMMARY OF THE ARGUMENT

The trial court abused its discretion in denying Plaintiffs’ request for a

permanent injunction, in light of the jury’s unanimous finding of nuisance. The trial

court’s error was the cumulative result of several significant legal missteps. First,

the trial court erroneously penalized Plaintiffs for failing to adduce evidence of what

kind of structure would not constitute a nuisance, when Plaintiffs only burden was
25
to demonstrate nuisance with respect to the proposed High Rise. Second, the trial

court erred in balancing the equities, ignoring substantial equitable reasons favoring

injunction and wrongly suggesting that Plaintiffs delayed in bringing suit. The court

also erred in evaluating the possible “chilling” effect of an injunction by failing to

weigh it against the finding that the Ashby High Rise would constitute a nuisance.

The Court further erred in holding that Plaintiffs had an adequate remedy at law

when the injury they will suffer is permanent injury and physical damage to their

homes. Finally, the trial court erroneously suggested that it was appropriate to

penalize these Plaintiffs for the actions of anonymous threats and other actions taken

by unknown actors.

ARGUMENT

Texas law provides that a permanent injunction is an appropriate remedy to

protect against a private nuisance. See, e.g., Freedman v. Briarcroft Property

Owners, Inc., 776 S.W.2d 212, 214 (Tex. App.—Houston [14th Dist.] 1989, writ

denied). Where, as here, a jury has found a nuisance, an order of permanent

injunctive relief is plainly available. Spiller v. Lyons, 737 S.W.2d 29 (Tex. App.—

Houston [14th Dist.] 1987, no writ). Indeed, in Spiller, this Court reinstated a

permanent injunction based on nuisance after the trial court had nullified its

injunction order by rendering judgment notwithstanding the verdict. Id. at 29. This

Court held that the evidence that increased traffic would cause a danger to children

26
in an otherwise quiet and family-oriented neighborhood was sufficient to support an

injunction, and ordered that it be reinstated. Id.; see also Assembly of God Church

of Tahoka v. Bradley, 196 S.W.2d 696, 697 (Tex. Civ. App.—Amarillo 1946, no

writ)(affirming the permanent injunction against the construction of a church

building based on a finding of nuisance).

The jury finding that the Ashby High Rise will be a nuisance is a sufficient

basis by itself to enter the permanent injunction. The nuisance will constitute injury

to real property, making the injury irreparable in the eyes of the law. TEX. CIV.

PRAC. & REM. CODE § 65.011(5); see also Assembly of God Church, 196 S.W.2d at

697 (“the judgment [entering an injunction] should be affirmed if the evidence

supports the jury’s finding that the building, when constructed, would be a

nuisance”).

Although a trial court has discretion in determining whether to issue an

injunction, that discretion is not unlimited, and the trial court has no discretion in

determining the legal underpinnings for its ruling. See, e.g., In re American

Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (a trial court has no

discretion to determine what the law is). The trial court committed legal errors which

led it to abuse its discretion in refusing to enter the injunction.

27
A. The trial court erred in balancing the equities.

In considering Plaintiffs’ request for a permanent injunction the trial court was

required to balance the equities. If the equities weigh in favor of an injunction, then

the trial court should enjoin the nuisance.

The trial court erred in balancing the equities in this case in a number of ways.

First, the trial court imposed on Plaintiffs a burden beyond that which Texas law

requires. Second, the trial court ignored the overwhelming evidence of Defendants’

misconduct, and improperly credited evidence from Defendants that, under Texas

law, is not competent evidence.

1. The trial court improperly penalized Plaintiffs for failing to prove
what would not constitute a nuisance.

The trial court declined to enter an injunction in part because Plaintiffs failed

to provide evidence on which the jury could base a finding that another, different

project might not constitute a nuisance. The trial court apparently believed that

Plaintiffs should have shouldered the burden of designing a building that the

Developer could build without harming Plaintiffs. 108 The trial court’s ruling was a

legal error, and it placed an impossible and unfair burden on Plaintiffs while

rewarding the Developer for its failures at trial.

108
CR 1207-09.
28
 The Developer, and not Plaintiffs, had the burden to present alternatives or

modifications of its plans to the jury if it hoped to obtain a finding from the jury that

a particular option was not a nuisance. In Pool v. River Bend Ranch, LLC,346

S.W.3d 853, 857 (Tex. App.—Tyler 2011, pet. denied), the plaintiff homeowners

obtained a nuisance finding and secured a permanent injunction against the operation

of an all-terrain vehicle park on defendant’s ranch. Id. The defendants had been

operating a commercial ATV park on their property for approximately 8 years, and

the operation had expanded until the lawsuit was filed. Id. at 855. At trial, both

sides adduced evidence about the effect on the homeowners of the operations of the

ATV park. Id. The trial court found that the ATV park was a nuisance, and it entered

a permanent injunction preventing the defendants from operating a commercial ATV

park on the property. Id.

On appeal, the defendants complained that the injunction was overly broad

because “it enjoined them from operating any commercial ATV events.” Id.

Defendants urged that the injunction should have been tailored to allow operations

to return to reduced levels such as those that existed before the expansion. Id. at

859. The Tyler Court of Appeals rejected this position:

Based on our review of the record, there was no evidence before the
court that established that these commercial ATV events were any less
a nuisance in 2007 than they were in 2003. Further, there was no
evidence in the record that demonstrated what number of ATVs or
motorcycles in operation would not constitute a nuisance to the
community. Without this evidence, there was no basis upon which the
29
 trial court could craft an injunction that eliminated the nuisance caused
by the excessive noise, short of prohibiting the commercial ATV park
on Pool Ranch in its entirety.

Id. at 860. If defendants wanted a finding of what would not be a nuisance, it was

their burden to offer the evidence necessary to show what level of ATV operations

would not constitute a nuisance.

The trial record in Freedman, 776 S.W.2d at 212 is also instructive. In that

case, the defendant offered two proposed modifications to their plans in an effort to

avoid a nuisance finding, a barrier and armed security guards. Id. at 217. The jury

found that even with the proposed modifications, the parking lot would constitute a

nuisance. Id.

The injunction order in Champion Forest Baptist Church v. Rowe, 1987 WL

5188 (Tex. App. – Houston [1st Dist.] Jan. 8, 1987), provides guidance on the proper

approach. In Champion Forest, the First Court of Appeals affirmed the trial court’s

entry of a permanent injunction against the defendant church’s construction of a

parking garage. The injunction enjoined the defendant “from constructing the

proposed parking garage at the proposed site.” See Copy of Order granting

Permanent Injunction, CR 1053-57. After the injunction was entered, the church

significantly redesigned the garage to remedy the aspects that caused the nuisance,

increasing the setbacks and changing the traffic flow. See Rowe v. Moore, 756

S.W.2d 117, 118 (Tex. App.—Houston [1st Dist.] 1988, no writ). The plaintiffs in

30
Champion Forest nonetheless claimed that construction of the redesigned garage

would violate the injunction and moved for contempt. Id. The trial court denied the

contempt motion and the court of appeals affirmed. The Champion Forest case

provides an excellent model for appropriate injunctive relief against the construction

of a prospective nuisance, but the trial court erroneously rejected the model.

These cases reflect the only sensible approach to the question. Plaintiffs in

this case (or any other nuisance case) are not required to provide evidence of a

hypothetical project that would not be a nuisance. Plaintiffs have the burden of

showing that the actual project that a defendant intends to construct will create a

nuisance. Once they have sustained that burden, they are entitled to relief. To

impose further burden on them is outside the scope of tort law.

A nuisance plaintiff could offer countless alternative proposals for a particular

property—anything from a park to a Walgreen’s—without supplying an alternative

that the defendant would actually be willing to build. Such evidence would be a

side-show and a complete waste of the court’s time. The trial court’s decision to

shift the burden to the Plaintiffs to demonstrate what would not constitute a nuisance

was error that led to its abuse of discretion.

31
 2. The trial court’s determination that an injunction would harm the
Developer is not supported by the evidence.

The trial court next concluded that an injunction would cause “considerable

hardship” to the Developer because “[w]hile the defendant could sell the Property

and recoup some of its losses, in no way could defendant come out whole. Defendant

has considerable sunk costs in design and engineering fees. This effort and work

cannot simply be picked up and moved to a new location.” 109 That conclusion is not

supported by the evidence.

The Developer offered no competent evidence that it would suffer

“considerable hardship” if its present project were enjoined, or that it would not be

able to recoup its investment if it decided to sell the property as a result. It is just as

likely that the Developer could come out ahead, not behind, if it built the Ashby

High Rise at a more appropriate location, on an adequately sized parcel of land, with

sufficient surrounding infrastructure, and without causing foundation damage,

traffic problems, and privacy invasions that resulted in the jury finding this project

to be a nuisance. The Court’s statement that “in no way could defendant come out

whole” is speculation. The evidence does not support such a conclusion, and the

Court erred in including that determination as part of its balancing of the equities.

109
CR 1210.
32
 3. The trial court’s determination that an injunction would cause
harm to the community is not supported by the evidence.

The trial court stated that “[i]f an injunction is granted, there is no question

but that it will have a chilling effect on other development in Houston.” 110 That

determination, too, is speculation that is not supported by the evidence. The

Developer did not offer any competent evidence of the impact that an injunction

would have on development in Houston. To the contrary, the evidence was

uncontroverted that the City now has a “buffering ordinance” that specifically

requires a certain amount of setback from adjacent properties, and that the Ashby

High Rise could not be permitted or constructed under the terms of that ordinance.111

The evidence presented to the jury instead showed that the Ashby High Rise

is a unique project with unique circumstances, and for that reason is unlikely to

impact other development in Houston. The evidence demonstrated that the

Developer mislead the City in the permitting process with respect to the traffic and

green screen requirements of the Settlement Agreement. 112 Documentary evidence

showed that the Developer was willing to submit plans that it has no intention of

110
CR 1211.
111
RR9 6:15-19:16; PX 302;303 The trial court did not permit Plaintiffs to introduce evidence of
the “buffering ordinance” to the jury during trial, even though it permitted the developer to present
testimony from an expert regarding Houston’s history of zoning and ordinances. Nonetheless, the
evidence of the buffering ordinance was part of the record that the trial court had before it because
Plaintiffs made a proffer on the record and outside the presence of the jury.
112
PX 63; R11 171:3-12; R11 172:22-173:9; RR 11 148:6-24; PX 77; R11 155:19-159:24. .
33
building just to get a permit issued. 113 Documents and testimony from Defendants’

geotechnical expert revealed that the Developer never conducted the tests necessary

to assess whether the Ashby High Rise would cause physical damage to adjacent

homes before trial, and when the Developer finally did conduct those tests during

trial, the Developer and their expert tried to misrepresent that the tests supported

their position while concealing the actual results.114

The only possible “chilling effect” supported by the evidence, then, is that an

injunction might deter developers from misleading the City to get permits issued,

and may cause developers to consider whether they will physically damage

neighboring structures when they are designing their project. Deterrence of future

tortious conduct is among the primary purposes of tort law. See Roberts v.

Williamson, 111 S.W.3d 113, 118 (Tex. 2003) (“The fundamental purposes of our

tort system are to deter wrongful conduct, shift losses to responsible parties, and

fairly compensate deserving victims). To the extent that an injunction would serve

to deter the wrongful conduct and design flaws that infect the Ashby High Rise

project, that would be a benefit to the community, not harm.

The trial court also stated that “the Project will provide benefits to the city as

a whole”115 as part of its determination that an injunction would harm the

113
PX 64, PX 65
114
RR15 33:10-34:3. RR15 36:11-19; 37:19-22; 40:25-41:3; 42:25-43:11.
115
CR 1212.
34
community. That, too, is speculation and is not supported by the evidence. The

Developer did not offer any evidence that the Ashby High Rise as currently proposed

will provide any more benefit to the City than would be provided by a different

project on the current site or by building the Ashby High Rise at another location.

Without such a comparison of alternatives, it cannot be said that an enjoining the

construction of the Ashby High Rise as proposed will deprive the City of any benefit.

4. The trial court ignored the evidence that the Developer misled the
City to obtain permits for the project.

The trial court weighed the fact that the City of Houston entered into

Settlement Agreement with the Developer and issued permits for the Ashby High

Rise as support for denying the requested injunction. In doing so, the court ignored

the substantial evidence that the Developer intended to mislead the City regarding

the number of restaurants, the green screen, and it foundation plans. The trial court

similarly ignored the Developer’s misleading testimony regarding offers it received

to purchase the site, as well as the Developer’s late production of misleading

evidence that led to an unnecessary extension of the trial. The actions of the

Developer leading up to and during trial demonstrate its willingness to submit false

applications and adduce false evidence in support of its cause.

35
 5. The trial court’s determination that Plaintiffs delayed in bringing
this lawsuit is not supported by the evidence.

Instead of giving the appropriate weight to this overwhelming evidence of

dishonest behavior, which was fully before him, the trial court found that the

Plaintiffs unnecessarily delayed in filing suit, causing the Developer harm. 116 This

finding is unsupported by the record. The record demonstrates that Plaintiffs filed

suit shortly after the Developer received its permit. Had Plaintiffs filed any sooner,

the Developer undoubtedly would have argued that the suit was premature.

Furthermore, the record conclusively establishes that both Morgan and Kirton

fully anticipated a lawsuit, and intentionally withheld their construction plans from

Plaintiffs because of their fear of a lawsuit. 117 Morgan and Kirton believed that

Plaintiffs would sue if they obtained the construction plans and could assess the

substantial interference the Ashby High Rise would cause, so Morgan and Kirton

withheld construction plans. As soon as Plaintiffs obtained the construction plans,

they investigated the impacts that the project would have on the neighborhood, and,

based on the results of that investigation, they immediately filed suit. For example,

the neighborhood residents had no way to analyze whether the Ashby High Rise

would cause foundation damage to neighboring homes without the construction

plans that were withheld from them. The Texas Rules of Civil Procedure require a

116
CR 1210.
117
RR3 242:17-243:2; RR11 178:7-13.
36
plaintiff to investigate and have a good faith basis for his or her claims prior to filing

a lawsuit. See, e.g., TEX. R. CIV. P. 13. The trial nonetheless court found that the

Plaintiffs’ delayed in filing suit—even though any “delay” was intentionally caused

by Morgan and Kirton’s own recalcitrance—and weighed that against Plaintiffs in

evaluating injunctive relief. 118

Compounding this error in weighing the evidence, the trial court failed to

consider that the Developers had multiple opportunities to exit without incurring

losses. The evidence showed that in February 2008, a few months after the public

release of the Developer’s plan, members of the surrounding community made an

offer that would have made Developers whole.119 The Developers rejected this offer

and doubled-down on the high rise concept, making all subsequent investment at the

Developer’s own risk.

The Hunt entity also chose to invest in the project fully informed of the

widespread opposition to the High Rise and the associated risks of developing a

project that the neighboring homeowners viewed as an invasion of their property

rights. The Hunt entity even signed a litigation schedule, acknowledging this risk.120

Under these circumstances, the notion that Plaintiffs’ purported “delay” caused any

undue harm to the Developer is unfounded.

118
CR 1210.
119
DX 107.
120
CR 904.
37
B. The trial court erred in holding that Plaintiffs have an adequate remedy at
law.

In holding that the Plaintiffs have an adequate remedy at law, the trial court

ignored the Texas Civil Practice and Remedies Code and decades of Texas case law

indicating that a threatened harm to real property, and in particular to a person’s

home, is irreparable as a matter of law. TEX. CIV. PRAC. & REM. CODE § 65.011 (5);

Stein v. Killough, 53 S.W.3d 36, 40 (Tex. App.—San Antonio 2001, no pet.)

(affirming a permanent injunction to prevent harm that would reduce the market

value of the litigant’s real property).

Some of the most compelling evidence at trial showed that the Ashby High

Rise, if built, will cause a substantial amount of physical damage to a number of

adjacent homes over an extended period of time. That damage will require extensive

repair work, including replacing sections of walls, repairing distorted window

frames, sloped floors, bearings and beams, and service pipes. 121 When a person’s

home is involved, damages are not an adequate remedy for such damage.

Given that the trial court has held that the Ashby High Rise has already

reduced the market value of Plaintiffs’ property, and the record testimony of all the

ways both tangible and intangible that the presence of the Ashby High Rise will

121
PX361.
38
interfere with Plaintiffs’ use and enjoyment of their homes, the trial court erred in

holding that the Plaintiffs injuries are compensable at law.

C. The trial court erred in penalizing Plaintiffs for the actions of anonymous
protesters.

The trial court erroneously considered the behavior of anonymous protestors

against the Ashby High Rise in declining to issue an injunction against its

construction. The suggestion that the evidence showed that any one of the Plaintiffs

themselves engaged in a “threat” against the developers is unsupported by the record

evidence. And the simple fact that Plaintiffs and others were vehemently opposed

to the project demonstrates only that the damage that the Ashby High Rise will cause

them is substantial and very important to them. The trial court’s finding that the

Plaintiffs are not entitled to equitable relief because of their conduct is not supported

on this record.

CONCLUSION AND PRAYER

The trial court committed several legal errors causing it to abuse its discretion

in refusing to issue the requested injunction. Plaintiffs respectfully request that this

Court reverse the trial court’s denial of injunctive relief and issue a judgment

permanently enjoining the Ashby High Rise.

39
 Respectfully submitted,

REYNOLDS FRIZZELL LLP

By: /s/ Jean C. Frizzell

Jean C. Frizzell
State Bar No: 07484650
Jeremy Doyle
State Bar No: 24012553
Solace K. Southwick
State Bar No. 11522150
James A. Schuelke
State Bar No: 24075037
1100 Louisiana Street, Suite 3500
Houston, Texas 77002
Telephone: (713) 485-7200
Facsimile: (713) 485-7250
jfrizzell@reynoldsfrizzell.com
jdoyle@reynoldsfrizzell.com
ssouthwick@reynoldsfrizzell.com
jschuelke@reynoldsfrizzell.com

COUNSEL FOR PLAINTIFFS/
APPELLEES/CROSS-APPELLANTS

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this Brief contains 8977 words, excluding the words not included in the word count
pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computer-
generated document created in Microsoft Word, using 14-point typeface for all text,
except for footnotes which are in 12-point typeface. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.
/s/ Solace Kirkland Southwick
Solace Kirkland Southwick

40
 CERTIFICATE OF SERVICE

As required by Texas Rules of Appellate Procedure 6.3 and 9.5, I certify that
I have served this document on all parties on April 8, 2015 via e-filing and/or e-mail.

H. Fred Cook
Brandon Hedblom
Wilson, Cribbs & Goren, P.C.
2500 Fannin
Houston, Texas 77002

Ramon G. Viada III
17 Swallow Tail Court
The Woodlands, Texas 77381

/s/ Jean C. Frizzell
Jean C. Frizzell

41
 7/10/2014 4:52:57 PM
Chris Daniel - District Clerk
Harris County
Envelope No: 1789424
By: COOPER, USA L

NO. 2013-26155

PENELOPE LOUGHHEAD, HOWARD §
EPPS, PHYLLIS GRIFFIN EPPS, EARLE §
MARTIN, JEANNE MEIS, STEPHEN § JN THE DISTRICT COURT OF
GLYNN ROBERTS, RICHARD G. §
BARANIUK, MARY SARAH BARANIUK, §
JAMES O. CLfFTON, ALLISON KELLY §
CLIFTON, JAMIE FLATT, MARTHA §
GARIEPY, RALPH KEN MILLER, JR., §
LESLIE M. MILLER, PETER STUART §
OLIVER, ADRIANA BOTTO OLIVER, §
NORMAN A. RUND, SUANNAH L. RUND, §
MARY THERESA VAN DYKE, ACHIM § HARRIS COUNTY, TEXAS
BELL, DIANA BELL, KIMBERLEY BELL, §
MARC M. FA VRE-MASSARTIC, ED B. §
FOLLIS, LAM NGUYEN, KA THERINE §
HOANG, LUONG NGUYEN, SUZANNE §
POWELL, KENNETH D. REUSSER, §
XANTHI I. COUROUCLI, FRANK T. §
STOKES, JEANETTE P. STOKES, §
MICHAEL H. CLARK, DINZEL R. § 157th JUDICIAL DISTRICT
GRAYES, MICHELLE JENNrNGS, §
STEVEN K. LrN, SARAH C. MORIAN, §
YI-WEN MlCHELLE PU, MICHAEL §
TETZLAFF, SURONG ZHANG , YrN §
ZHA NG, RAJA GUPTA, DlCO HASSID, §
LAUl~A R. LEE, DONALD VERPLANCKEN §
§
Plaintiffs, § Jury Demanded
§
v. §
§
1717 BISSONNET, LLC. §
§
Defendant §

FINAL JUDGMENT

On the 19th day of November 2013. the above-en111led and numbered cause was called for

trial. The parties announced ready through their anorneys o f record . The Court empaneled a Jury of

twelve, and the case proceeded to rrial. Al the conclusion of the evidence. the jury reached a

unanimous verdict on December 17, 2013. The jury found, as Lo 29 plaintiffs or 20 households. that

\O- \
1271
oc
the proposed high rise development at 1717 Bissonnet will constitute a nuisance if built. The jury

awarded damages to those plaintiffs. A true and correct copy of the signed verdict form is attached

as Exhibit I to this Final Judgment.

Following the verdict, the Defendant filed a motion for entry of judgment, for judgment

NOV and to disregard jury findings. The Plaintiffs filed an application for permanent injunction. On

May I, 2014, this Court signed a memorandum opinion and order ruling on such motions and

directed the parties to prepare a final judgment consistent with the memorandum opinion.

Accordingly, 1t is

ORDERED, ADJUDGED, and FINALLY DECREED that each of the following Plaintiffs

(hereinafter collectively. the '·Prevailing Plainriffs ..) have and recover from and against the

Detendant the sum set forth beside rhe name of each such Pia inti ff or Plaintiffs, as found by the jury

for loss of market value to their properties:

I. Luong Nguyen - $88,050.00.

2. Lam Nguyen and Katherine Hoang, jointly - $25,932.25.

3. Jamie Flatt - $84.888.00.

4. Penelope Loughhead - $90,288.00.

5 Donald Vcrplancken - $72.252.00.

6 Norman and Suannah Rund, jointly - $96,630.00

7. Achim and Diana Bell, jointly - $80,4 71.04.

8. Jeanne Meis - $79,891.20.

9. Mary Van Dyke - $88,680 60.

I0. Ralph and Leslie Mill er, joinrly - $94,528.80.

11. Yin and Surong Zhang, jointly - $I 02,483.00.

1272
 12. Martha Gariepy - $88,065.00.

13 Stephen Roberts- $47,693 50.

14. Suzanne Powel I - $20, 191 .68.

15. Michelle Jennings and Michael Tetzlaff, jointly - $17,613.00.

16. James and Allison Clifton, jointly - $28,850.30

17. Kimberley Bell - $24,097.50.

18. Richard and Mary Baraniuk. jointly - $21 ,596.04.

19. Kenneth Reusser and Xanthi Couroucl i, jointly - $33,636.69.

20. Earle Martin - $36,923.58.

This judgment is without prejudice to the Prevailing Plaintiffs' right to seek and recover

damages for the loss of use and enjoyment of their properties resulting from the nuisance when such

damages become ripe for judicial determination. It is further

ORDERED. ADJUDGED, and FINALLY DECREED that each of the twenty damage

awards set forth above shall bear interest at the rate of 5%. compounded annually, until such

judgment has been satisfied. It is further

ORDERED, ADJUDGED, and FINALLY DECREED that the following Plaintiffs

(hereinafter collectively, the ·'Non-Prevailing Plaintiffs") shall TAKE NOTHING by this action

against the Defendant: Dinzel Graves, Sarah Morian & Michael Clark, Marc Favre-Massartic, Raja

Gupta, Laura Lee & Dico Hassid, Peter & Adriana Oliver, Ed Follis, Frank & Jeanette Stokes.

Steven Lin &Yi-Wen Michelle Pu, and Howard & Phyllis Epps. It is further

ORDERED, ADJUDGED, and FINA LLY DECREED that all costs of court are taxed

against the Defendant, except the costs of the deposirions of Michael Clark, Marc Favre-Massartic,

Raja Gupta, Laura Lee, Adriana Oliver, Ed Follis, Frank Stokes, Steven Lin, and Phyllis Epps,

1273
which are taxed against the Non-Prevailing Plaintiffs. It is further

ORDERED, ADJUDGED, and FINALLY DECREED that Plaintiffs' application for

permanent injunction is DENIED.

All writs and processes for the enforcement and collectton of the sums awarded by this

Judgment or the costs of court may issue as necessary.

All relief not expressly granted herein is dented.

Signed this ____
/ _8_-A
__ day of-=..J
__ u_ ( _,_)I'_ _ _, 2014
I

APPROVED AS TO FORM BUT RESERVING ALL COMPLAINTS AS TO SUBSTANCE:

By: /s/ Ramon G Viada 111
Ramon G. Viada III
Texas Bar No. 20559350
VIADA & STRAYER
17 Swallow Tail Court
The Woodlands, Texas 77381
(281) 419-6338
(281) 661-8887 (Fax)

COUNSEL FOR DEFENDANT

1274
APPROVED AS TO FORM BUT RESERVING ALL COMPLAINTS AS TO SUBSTANCE:

By: /s/ Jean C Fnzzell
Jean C. Frizzell
Texas Bar No. 07484650
REYNOLDS, FRIZZELL, BLACK, DOYLE,
ALLEN AND OLDHAM LLP
I I 00 Louisiana Street, 3500
Houston, Texas 77002
(713) 485-7200
(713) 485-7250 (Fax)

COUNSEL FOR PLA INTIFFS

.J848-4 I I0-8507. \' 2

1275
 CAUSE NO. 2013-26155

Penelope Loughhead, et al. § In the District Court of
§
v. § Harris County, Texas
§
1717 Bissonnet, L.L.C. § 15th Judicial District

Opinion and Order

In November and December 2013, this case was tried to a jury. That jury found that a

proposed high rise development at 1717 Bissonnet would constitute a nuisance if built to 20 of

30 plaintiff homeowners who lived near the proposed project. That same jury awarded damages

to those 20 prevailing plaintiffs. The 20 prevailing plaintiffs have now moved this Court for a

permanent injunction enjoining the defendant from constructing the project rather than awarding

damages. For the reasons stated here and in defendant's opposition briefs, plaintiffs' request for

a permanent injunction is denied. The Court instead enters judgment awarding partial damages

to the prevailing plaintiffs and a take nothing judgment to the 10 plaintiffs who did not prevail.

I. Factual Background

This case involves a 1.6 acre tract located at 1717 Bissonnet (the "Property"). Since the

early 1960's, Maryland Manor Apartments occupied the Property, ultimately growing to 67

units. In 2007, Buckhead Investment Partners acquired Maryland Manor and began plaps to

construct a 23 story multi-use development consisting of a five-level parking garage and 18

floors of apartments. On July 30, 2007, Buckhead filed its foundation and site work permit

application with the City of Houston and on August 28, 2007, Buckhead advised the

neighborhood association of its plans. 1 The neighborhood opp0sition was rapid and intense. A

FILED
Chris Daniel
1 District Clerk
Defendant's Ex. 104.
MAY 1 ·9--0 I~
1
Time: --.,.,--~-~-----­
Ha• ri.;. Cc .::":iy. T&:xx;
1

RECORDER'S MEMORANDUM
This Instrument Is of poor quality 1199
at the time of Imaging
neighborhood group called Stop Ashby High Rise was created and
STOP
signs in opposition to the Project appeared throughout the
HBY
neighborhood. HIGH
The City of Houston initially approved the developer's Traffic
~~RISE
Impact Analysis on September 4, 2007. However, on September 28, 2007, in response to

neighborhood opposition, that approval was rescinded. Over the next several years, Buckhead

revised its applications ten times; each time the application was rejected. In August 2009,

Buckhead submitted a revised application under protest and subject to challenge of the project's

previous denials. 2 On August 25, 2009, the City of Houston approved the revised project.

Although the revised application was approved by the city. Buckhead continued to press for

approval of the original application. In October 2009, Buckhead appealed the denial of its

building permit to the City of Houston's General Appeals Board. The Appeals Board rejected

the appeal and in December 2009, the Houston City Council upheld the decision of the Appeals

Board. On April 9, 2010, Buckhead and Maryland Manor Associates filed suit against the city in

federal court3 complaining that Buckhead' s previous applications were wrongfully denied. In

February 2012, the City of Houston and Buckhead settled the federal action. In return for

dismissing the lawsuit, the City of Houston agreed to approve the project provided the following

changes were made:

• The project would be a 21 (rather than 23 as requested by Buckhead) story residential or
mixed-use residential and commercial development on the Property with 228 residential
high-rise units, 10,075 square feet of restaurant use, and four residential townhouses (the
"Project");

2
The revised project application called for a project that would generate only 120 p.m. peak hour automobile trips
onto and off of Bissonnet. The original application, the denial of which Buckhead complained, would have
rnerated a total of 184 p.m. peak hour trips.
The action was originally filed in the 15 lsi Dist. Court of Hanis County, but was subsequently removed to federal
court by the City of Houston.

2

1200
 • A pedestrian plaza must exist in the front of the Project with specified curb cuts on Ashby
and Bissonnet;

• Traffic mitigation measures must be implemented including shuttle service and making
bicycles available;

• Green wall screening must be constructed along the south and east walls of the parking
garage;

• Lighting must be hooded or directed away from adjacent residences; and

• Noise mitigation must be implemented.4

This settlement agreement was publically announced on March 1, 2012.

II. Procedural Background

On January 14, 2013, Penelope Loughhead filed an action under Rule 202 of the Texas

Rules of Civil Procedure to obtain pre-suit discovery about the construction plans for the Project.

On March 4, .2013, this Court ordered defendant to provide certain construction information to

plaintiff.

On May 1, 2013, six plaintiffs filed suit seeking damages and a permanent injunction to

stop the Project. 5 Because of the previous Rule 202 suit, this action was transferred to this

Court.6

Trial commenced on November 19, 20137 and ended with a jury verdict on December 17,

2013. The jury determined that the Project, if built, would constitute a nuisance to the owners of

20 of the 30 homes, but did not constitute a nuisance to owners of 10 homes. The jury awarded

4
Defendant' s Ex. 9.
s Over the next several months, many plaintiffs joined and exited the suit. At one point, there were more than 140
plaintiffs. However, many of those plaintiffs voluntarily withdrew their action. Ultimately, 45 plaintiffs
representing 30 homes went to trial.
6
Transferred by the Administrative Judge of the Civil Division pursuant to Harris County Local Rule 3.2.2.
7
Because this controversy had lingered for six years, this Court placed the matter on an accelerated trial schedule in
order to achieve a rapid resolution.

3

1201
damages to the homeowners of the twenty prevailing homes. A hearing was held on March 31,

2014 and April 21, 2014 to determine whether and what type of judgment should be entered. 8

There are several motions pendjng before this Court. Defendant has filed a motion for

entry of judgment, for judgment NOV and to disregard jury findings. Specifically, defendant

requests that a take nothing judgment be entered against the homeowners of the ten homes who

lost at trial and that the court enter a judgment notwithstanding the verdict with respect to the

homeowners of the twenty homes who prevailed ("20 Prevailing Plaintiffs'·).

Similarly, plaintiffs have filed an application for permanent injunction. Plaintiffs are not

seeking damages in the event the Project is built. Rather, plaintiffs seek an injunction enjoining

construction of the Project as it is currently planned and permitted.

III. The Jury Verdict

Initial examination needs to be given to the jury verdict. The jury was asked whether the

Project, if constructed, would

constitute a nuisance to each

plaintiff. Plaintiffs were

numbered 1-30. (list attached as

Ex. A) Generally speaking,

plaintiffs immediately adjacent

to the Project prevailed and those

living farther away or to the

north Jost. As this graphic demonstrates, plaintiffs in black (19, 21-23; and 25-30) lost at trial.

Plaintiffs in yellow prevailed to varying degrees.

8
That hearing was originally scheduled for January 23, 2014, but at the request of the panics was moved to March
31. 20 14.

4

1202
 Additionally, the jury was asked to assess damages to the prevailing plaintiffs in two

categories: (I) diminution of market value to plaintiffs' homes if the Project is built; and (2) loss

of use and enjoyment of their property if the Project is built.. The jury awarded the 20 Prevailing

Plaintiffs approximately $1.2 million for diminution of property value and over $400,000 for loss

of use and enjoyment of their property.

IV. Defendant's Motion for Judgment

As a threshold matter, defendant's motion for judgment against the plaintiffs in the ten

homes who lost at trial is an easy and straightforward motion. That motion is granted. A take

nothing judgment is entered against those plaintiffs.

V. Defendant's Motion for Judgment Notwithstanding the Verdict

A trial court may grant a motion for judgment notwithstanding the verdict if the evidence

is legally insufficient to support the jury's findings. Rocor Int'/, Inc. v. National Union Fire Ins.

Co., 77 S.W.3d 253, 268 (Tex. 2002). Courts must view the evidence in the light favorable to

the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. Id. at 807.

The jury was asked the following question:

Question No. 1:

Is 1717 Bissonnet's proposed Project abnormal and out of place in its
surroundings such that it will constitute a private nuisance if built?

1717 Bissonnet creates a "private nuisance" if its Project substantially
interferes with Plaintiffs' use and enjoyment of their land.

"Substantial interference" means that the Project must cause unreasonable
discomfort or unreasonable annoyance to a person of ordinary sensibilities
attempting to use and enjoy the person's land. It is more than a slight
inconvenience or petty annoyance.

5

1203
 A nuisance, if it exists, is not excused by the fact that it arises from an
operation that is in itself lawful or useful.

Thus, to prove that the Project was a private nuisance, plaintiffs had to show that it would

be "abnormal and out of place in its surroundings," and that it substantially interferes with

Plaintiffs' use and enjoyment of their land. In support of this proposition, plaintiffs argued that

the following factors constituted a nuisance:

• Increased traffic;

• Loss of privacy;

• Foundation damage to adjacent landowners due to settlement;

• Increased light to adjacent landowners;

• Construction annoyances ; and

• Shadow cast by the Project with resulting vegetation damage.

The question of whether a lawful structure can constitute a nuisance is not a new or novel

issue to jurisprudence. Texas courts have long grappled with landowners complaining that

proposed structures on adjacent land would constitute a nuisance. For example, our supreme

court observed that "there is no question that foul odors, dust, noise, and bright lights-if

sufficiently extreme·- may constitute a nuisance." Schneider Nat. Carriers, Inc. v. Bates, 147

S.W.3d 264, 269 (Tex.. 2004). See also Bay Petroleum Corp. v. Crumpler, 272 S.W.2d 318, 318-

20 (Tex. 1963)(affi.rming jury verdict finding no nuisance since wind did not carry "obnoxious

gases, fumes, odors and stenches" from gas-storage operations to plaintiffs' land in substantial

quantities); Parsons v. Uvalde Elec. Light Co., 106 Tex. 212, 163 S.W. 1, 1-2 (1914)(affirming

jury verdict based on smoke, dust, and cinders from electric power plant); Rosenthal v. Taylor. B.

& H. Ry. Co., 79 Tex. 325, 15 S.W. 268, 269 (l89l)(remanding nuisance claim base on stagnant

water, noise, dust, smoke, and cinders caused by railroad operations).

6

1204
 In this case, defendant analyzes each of the complained of activities and argues that each

of them, standing alone, is insufficient to constitute a nuisance. Plaintiffs characterize this as a

divide and conquer argument. The court agrees with plaintiffs. The nuisance cases in Texas

demonstrate that all evidence, taken together, is to be considered in determining whether a

nuisance exists. See Freedman v. Briarcroft Property Owners, Inc., 776 S.W.2d 212; 270 (Tex.

App.-Houston [14th Dist.] 1989, writ denied)("whether a nuisance exists is a question to be

determined not merely by a consideration of the thing itself, but with respect to all attendant

circumstances"); Schneider, supra at 269 (foul odors, dust, noise and bright lights-if

sufficiently extreme-may constitute a nuisance"); GTE Mobilnet of South Texas, Ltd. v.

Pascouet, 61 S.W.3d 599, 615 (Tex. App.-Houston [14th Dist.] 2001, pet. denied)(combination

of noise and light constituted nuisance); Lamesa Co-op Gin v. Peltier, 342 S.W.2d 613, 616

(Tex. Civ. App.-Eastland 1961 , writ ref d n.r.e.)(loud noises, glaring tights, dust, odors, smoke

and cotton lint combined to support nuisance finding).

The jury determined that the various complained of activities constituted a nuisance.

There is sufficient evidence to support that finding. For the reasons stated in plaintiffs' response

to defendant' s motion for entry of judgment, for judgment NOV and to disregard jury findings,

the jury's finding of nuisance w_ill not be overturned.

VI. Damages v. Injunction

Affirming the jury's finding of nuisance is by no means the end of the inquiry. The court

has, in effect, two options: permit the construction of the Project and award damages, or halt the

Project and award no damages. Damages and an injunction are mutually exclusive. If an

injunction is entered halting the Project, plaintiffs will suffer no damages. "Awarding both an

injunction and damages as to future effects would constitute a double recovery." Schneider,

7

1205
supra at 284. Plaintiffs have made it clear that they want an injunction rather than damages. For

the reasons stated in defendant's trial brief on balancing the equities and defendant's other briefs,

plaintiffs' application for injunction is denied. Some of the reasons to deny the application are

discussed here.

Standards for Issuing an lniunction. Even when a nuisance is established, a pennanent

injunction is not automatic. In Story, our supreme court stated:

Petitioners take the position that the jury having found the facts constituting the
nuisance, they were entitled to the injunction abating the plant as a matter of right.
We do not agree. We think that there should have been a balancing of equities in
order to determine if an injunction should have been granted.

Storey v. Central Hide & Rendering Co., 226 S.W.2d 615, 618 (Tex. 1950). Rather, a pennanent

injunction can only be issued when plaintiffs establish:

(a) The existence of a wrongful act;

(b) The threat of imminent harm;

(c) The existence of irreparable injury; and

(d) The absence of an adequate remedy at law.

GTE Mobilnet of S. Tex. Ltd. v. Pascouet, 61 S.W.3d 599, 620 (Tex. App.-Houston [14th Dist.]

2001, pet. denied). Thus, the trial court must w~igh ''the respective conveniences and hardships

of the parties and balance the equities." Webb v. Glenbrook Owners Ass'n, Inc., 298 S. W .3d 3 74, 384

(Tex. App. -Dallas 2009, no pet.). If they are issued, injunctions must be narrowly drawn and

precise; injunctions cannot be so broad as to enjoin a defendant from activities which are a

lawful and proper exercise of rights. Holubec v. Brandenberger, 111 S.W.3d 32, 39-40 (Tex.

2003).

While the jury determines fact questions, the trial judge must balance the equities in the

role of chancellor to determine whether to issue an injunction. As one court stated:

8

1206
 It is not within the jury's province to pass upon the issue of whether or not the
private nuisance which would result from the [proposed use of the defendant's
property] will be outweighed by the public welfare. This is not a fact issue, but
one to be determined by the chancellor in accordance with established equitable
principles.

Georg v. Animal Defense League, 231 S.W.2d 807, 811 (Tex. Civ. App.-San Antonio 1950,

writ ref d n.r.e.). The balancing of the equities lies within the trial court' s sound discretion. Lee

v. Bowles, 397 S.W.2d 923, 926 (Tex. Civ. App.-San Antonio 1965, no writ). In short, Texas

law places the responsibility on the trial court.

Finding of Nuisance was Verv Localized. As noted earlier, only some of the plaintiffs

prevailed at trial. Generally speaking, only those plaintiffs immediately adjacent to the project or

in close proximity won. All plaintiffs north of the Project lost. The Project was not deemed a

nuisance to any plaintiff more than approximately 200 feet from the Proj ect.

While it's not possible to know precisely what the jury was thinking, even plaintiffs'

counsel at closing arguments conceded that this finding suggests that the jury rejected the traffic

and shadow concerns raised by plaintiffs. At the minimum, the jury' s finding makes clear that

the Project is a nuisance to only a small band of plaintiffs and does not extend to the entire

community.

Difficulty in Enforcing an Injunction. Plaintiffs request an injunction precluding

defendant from constructing the Project as permitted by the City. Thus, the injunction would

preclude a mixed use 21 story building consisting of retail on the ground floor. a five story

parking garage, and 16 floors of apartments. This Project and only this Project was found to be a

nuisance to 20 homeowners. If defendant sought to construct a 20 story project, there would be

no finding that such a building would be a nuisance. A new trial would have to be conducted to

determine if such a building would be a nuisance. Similarly, suppose defendant desired to erect

9

1207
a mid-rise six story structure that spanned property line to property line and had more units than

the currently permitted Project? Would such a project be a nuisance? Such a mid-rise would

solve the height concerns of the neighborhood, but might have worse privacy and traffic

concerns.

Plaintiffs suggest that this Court should enjoin the Project as permitted and then, if

defendant tries to skirt the injunction by building a slightly smaller buildi.ng, conduct a contempt ·

hearing to see · if defendant is complying with the injunction. Unfortunately, plaintiffs'

suggestion is no solution. If defendant reduced the size of the building just slightly, defendant

would clearly not be violating plaintiffs' proposed injunction since defendant would not be

constructing the project as permitted.

In short, an order enjoining the construction of the Project as permitted would not resolve

this controversy. Rather, the Court would be faced with a potentially endless series of lawsuits

or contempt motions testing whether various tweaks and revisions of the Project would be a

nuisance or a violation of the injunction.

Some amicus briefs have suggested that the court should enter an injunction precluding

defendant from building anything more than 6 or 7 stories in height. Unfortunately, there's

absolutely no evidence from which this court can determine what height is appropriate and what

height is inappropriate. The jury (at plaintiffs' request) was simply asked whether the Project as

permitted was a nuisance. The jury was not asked and the plaintiffs did not request a finding of

what height or number of units would be permissible. As a result, any attempt to issue an

injunction restricting the building to a certain number of floors would b~ sheer guesswork. This

Court is faced with an all or nothing proposition-either completely enjoin the building as

permitted or not. Unfortunately, as previously noted, a complete ban doesn't solve the

10

1208
controversy. Defendant can comply with the injunction.by simply shaving one floor off of the

project.

Far from resolving this controversy, plaintiffs concede a permanent injunction would

result in more suits and motions, including possible contempt motions and new suits. The Texas

Supreme Court stated that "judges may hesitate to issue discretionary orders that require

extensive oversight." Schneider, supra, 147 S.W.3d at 287. "Difficulties in drafting or

enforcing an injunction may discourage the trial judge from considering the imposition of an

equitable remedy." Id. at 289.

In the end, this Project is a residential development in a residential neighborhood.

Plaintiffs' opposition is primarily scale-plaintiffs argue the project is simply too big. It is not

as if the court could enter an injunction ordering defendant not to build a certain type of business,

e.g., racetrack or hide tanning facility. Courts can and have entered injunctions in the past

against such facilities. This case is different. A two story residential development was on the

Property for decades. Maryland Manor was of no concern to the neighbors but a two story

structure too small for the developer. A 21 story residential development is believed by the

neighbors (and the jury) to be too big. However, this Court has zero evidence with which to find

what size is just right.

Harm to the Defendant.

The defendant has fought for seven years to construct this Project. Neighborhood

opposition slowed the City of Houston permitting process. Ultimately, after being faced with

litigation, the City of Houston approved the Project with certain agreed modifications in order to

help alleviate neighborhood concerns. During all of this time, defendant spent millions of dollars

planning and designing the project. Indeed, while the neighbors fought and organized against the

11

1209
Project, no suit was filed. Even after the City approved the developers contested application, no

suit was filed. More importantly, even after the City and the developers entered into a settlement

agreement to permit the project to go forward, no suit was filed against the Project for over a

year. Meanwhile, defendant continued to expend money and energy to go forward with the

Project. Suit was not filed until May of 2013 against the Project. The delay in filing suit while

defendant continued to spend money and, indeed, raze the Maryland Manor Apartments which

generated cash flow, cannot be ignored.

One of the factors that must be considered by this Court is balancing the equities. To be

sure, construction of the Project will cause some hardship and disruption to the plaintiffs.

Enjoining the Project, however, will cause considerable hardship to defendant. While the

defendant could sell the Property and recoup some of its losses, in no way could defendant come

out whole. Defendant has considerable sunk costs in design and engineering fees. This effort

and work cannot simply be picked up and moved to a new location. The injunction requested by

plaintiffs would cause considerable hardship on defendant.

Harm to the Community.

One of the factors that this Court must consider in determining whether to grant an

injunction is harm to the public or community. As stated by our supreme court, the law of

nuisance grew out of localized issues, such as a hog farm or tannery, "small-scale operations that

like most others in pre-industrial England had little economic impact on anyone other than the

parties." Schneider, supra at 287. Now, however,

[i]ndustries and nuisances often come in much larger packages, with effects on
the public, the economy, and the environment far beyond the neighborhood. A
court sitting in equity today must consider those effects by balancing the equities
before issuing any injunction. Id.

12

1210
 If an injunction is granted, there is no question but that it will have a chilling effect on

other development in Houston. For better or worse, the City of Houston has repeatedly opted

against zoning. Houston's lack of zoning is often touted as part of the DNA of the city.

However, while there is not technically zoning, one witness testified that the City of

Houston vigorously enforces its ordinances and codes. Obtaining a building permit is by no

· means a given. In this case, the defendant went through years of considerable effon to obtain

approval for the Project. Ten different applications were made to the City. One project

alternative was approved, litigation filed, and ultimately the 21 story Project was approved by the

City.

If an injunction was issued, then a judge can become a one man zoning board with little

criteria. Two different couns could examine two similar projects and reach contrary

conclusions. Even after developers obtained a building permit, developers would have no idea

whether a proposed project would pass judicial scrutiny. Moreover, while building codes and

ordinances are quite detailed, the criteria of what constitutes a nuisance is considerably less

specific. Here, the definition of nuisance is simply whether a project, if built, would be abnormal

and out of place in its surroundings.

Currently, developers are faced with a lengthy permitting process where the rules are

defined. If developers are confronted with a second step-a possibility of an injunction-

developers might think twice about whether to proceed. This is particularly true since this

second step, litigation and resulting appeals, would t~e years to complete.

As Houston becomes more and more urbanized and denser, perhaps Houston should

reconsider whether zoning is appropriate for this City. That is not for this Court to decide.

13

1211
Rather, this Court must simply balance the equities. On balance, the Court concludes that an

injunction should not be issued.

Does this mean that an injunction can never be issued to stop a proposed project? Of

course not. But in weighing the equities in this case, the equities weigh toward no injunction.

Finally, the Project will provide benefits to the city as a whole. The Project will generate

millions in tax revenues and provide housing for the medical center, Rice, and other urban

destinations. While the Project might increase traffic along Bissonnet, it will contribute toward

reduction in urban sprawl and congestion on freeways feeding the city center.

City Approval.

Similarly, it must be remembered that the City of Houston approved this project and

extracted concessions from the defendant in the process. As part of the settlement of the federal

lawsuit, the city agreed to issue a permit for the project so long as defendant made certain design

changes, including (a) reducing the height of the building from 23 to 21 stories; (b) imposing

traffic, light and noise ntitigation measures; and (c) green wall screening on the parking garage.

While this procedure was not the same as zoning, this Court cannot ignore the fact that the city

(a) approved the project; and (b} extracted concessions to help ameliorate many of the

neighborhood concerns.

Defendant followed all of the rules required of the City.

Other Projects Nearby.

Mid-rise buildings are sprouting up throughout the inner city. Indeed, two blocks from

the proposed Project is a six story residential development at the comer of Ashby and Sunset and

several four story residential developments are across the street on Sunset. Moreover, a six story

14

1212
medical office building is 2-3 blocks away on Sunset. Thus, this neighborhood is becoming

dense even without this Project.

Privacy Concerns Pre-dated the Project. One of plaintiffs' concerns is that the Project,

if it went forward, would permit an invasion of privacy into the plaintiffs' homes and back yards.

This is a fact of ljfe in urban settings. Any time a two story home is erected next door, the new

neighbors wiJI have an opporturuty to peer into your back yard. Indeed, plaintiffs were subjected

to such an invasion of privacy when Maryland Manor Apartments occupied the Property.

Maryland Manor was razed in May 2013. However, prior to demolition, defendant took pictures

from second story apartments

overlooking plaintiffs' property .9

While plaintiffs testified that

they had no privacy concerns

with Maryland Manor, the

pictures introduced at trial

unquestionably show that

Maryland Manor residents could

look down into plaintiffs'

property. If anything, privacy

concerns from Maryland Manor

could have been worse than

potential privacy concerns from the Project. Maryland Manor was literally inches from the

property line, whereas the Project will be set back 10 feet. Maryland Manor had second story

9
Defendant Ex. 2.

15

1213
apartments overlooking plaintiffs ' back yards, whereas the Project will have a parking garage

occupying the first five floors. Additionally, the Project's apartments will be located in a tower

set back even farther. The potential nuisance concerns from the Project are not enough to justify

an injunction stopping the Project.

Adequate Remedy at Law.

One of the factors to be considered in deciding whether to grant an injunction is whether

the plaintiffs have an adequate remedy at law, i.e., whether they can be compensated in

damages. 10 The jury has weighed in on this issue and awarded damages to the plaintiffs. The

jury determined that the prevailing plaintiffs' homes would be diminished in value by ranges of

3-15%. 11 One of plaintiffs' principal arguments at trial was that the Project would cause

settlement and foundation damage to adjacent properties. Even if such foundation damage

occurred, this is precisely the type of injury for which courts routinely award damages. Plaintiffs

clearly have an adequate remedy at law.

Other Factors to be Considered.

There are a couple of other factors that need to be identified, although they are of lesser

importance.

A. Some Plaintiffs Chose to Buy Romes in the Neighborhood Despite the Possibility

of the Project being Built. Several plaintiffs bought their homes during the pendency of the

controversy from 2007 to the present. While the law is clear that this does not disqualify a

plaintiff from obtaining damages for a proposed nuisance, See, e.g., Galveston, H. & S.A. Ry.

Co. v. Miller, 93 S.W. 177, 179 (Tex. Civ. App. 1906, writ refd), it is a factor that cannot be
10
Although §65.001 of the Texas Civil Practice and Remedies Code appears to abolish the requirement of showing
irreparable injury, subsequent decisions hold that the irreparable injury requirement still exists. See Sonwalkar v. St.
Luke's Sugar Land Partnership, LLP, 374 S.W.3d 186 (fex. App.-Houston [I Si Dist.] 2012, no pet.).
11
Defendant's Ex. 166.

16

1214
ignored in determining whether to enjoin the Project. Even in the face of this project, some

plaintiffs chose to move into the neighborhood.

B. He who seeks equity must do equity. An injunction is an equitable remedy. Courts

have long held that he who seeks equity must do equity. Truly v. Austin, 744 S.W.2d 934, 938

(Tex. 1988). While most of the plaintiffs' conduct has been perfectly proper, there is no question

but that many neighbors and some plaintiffs aggressively fought the project. Threats were made

against the developers. Petitions were circulated that threatened to picket the homes of investors,

appear at businesses and homes of contractors and service providers who work on the project,

confront tenants in the neighborhood and let them know they are not welcome, boycott and

demonstrate against any restaurant at the project as well as any other location of the same

restaurant. In short, "we will appear at the homes of the owners, investors, and chef of your

restaurant tenant and demonstrate our opposition to their presence in our neighborhood." 12

Conclusion on Injunction.

For the reasons stated here, and for the reasons stated in Defendant's briefing, the

application for injunction is denied.

VII. Damages

If an injunction is denied, and if the plaintiffs do indeed have an adequate remedy at law,

then the final question for the court is what amount of damages to award. The jury was asked to

determine what sum of money, if paid now in cash, would fairly and reasonably compensate

plaintiffs for their damages in two areas: (a) loss of market value; and (b) loss of use and

enjoyment of their property.

12
Defendant Ex. 36.

17

1215
 Defendant argues that the jury findings on both elements of damages should be

disregarded because, among other reasons, the damages are not yet ripe and are speculative. The

Court agrees in part and disagrees in part. Because the Project has not yet been constructed, the

Court agrees that damages for loss of use and enjoyment should not be awarded at this time.

Determination of the extent to which the Project may interfere with plaintiffs' use and enjoyment

of their property is speculative until the project is constructed. See Allen v. City of Texas City,

775 S.W.2d 863 (Tex. App.-Houston [1st Dist.] 1989, writ denied).

With respect to lost market value damages, however, the Court agrees with Plaintiffs that

these damages have already occurred. Evidence was presented at trial that plaintiffs have

already incurred lost market value damages as a result of the planned Project.

VIll. Conclusion

This Court finds and orders as follows:

1. Defendant's Motion for Entry of Judgment with respect to the ten plaintiffs who

lost at trial is granted;

2. Defendant's Motion for Judgment Notwithstanding the Verdict is Denied;

3. Defendant's Motion to Disregard Jury Findings is Granted with respect to loss of

use and enjoyment damages and denied with respect to loss of market value

damages;

4. Plaintiffs' Application for Permanent Injunction is denied.

5. The parties are to prepare a judgment co

Signed May 1, 2014.

Hon. Randy Wil on
Judge l 57th ist. Court

18

1216
1. Luong Nguyen, 1750 Wroxton Ct
2. Lam Nguyen & Katherine Hoang, 1801 Bissonnet
3. Jamie Flatt, 1740 Wroxton Ct.
4. Penelope ~ughhead, 1736 Wroxton Ct.
5. Donald Verplancken, 1734 Wroxton Ct.
6. Nonnan & Suannah Rund, 1726 Wroxton Ct.
7. Achim & Diana Bell, 5300 Southhampton Estates
8. Jeanne Meis, 5302 Southhampton Estates
9. Mary Van Dyke, 5304 Southhampton Estates
10. Ralph & Leslie Miller, 5306 Southhampton Estates
11. Yin & Surong Zhang, 5310 Southhampton Estates
12. Martha Gariepy, 5308 Southhampton Estates
13. Stephen Roberts, 1804 Wroxton Rd.
14. Suzanne Powell, 5305 Southhampton Estates
15. Michelle Jennings & Dr. Michael Tetzlaff, 5309 Southhampton Estates
16. James & Allison Clifton, 1714 Wroxton Ct.
17. Kimberley Bell, 1729 Wroxton Ct.
18. Richard & Mary Baraniuk, 1731 W roxton Ct.
19. Dinzel Graves, 5219 Dunlavy
20. Kenneth Reusser & Xanthi Couroucli, 1801 Wroxton Rd.
21. Sarah Marian & Michael Clark, 1810 Bissonnet
22. Marc Favre-Massartic, 1812 Bissonnet
23. Raja Gupta, 1808 Wroxton Rd.
24. Earle Martin, 1811 Wroxton Rd.
25. Laura Lee & Dico Hassid, 1731 South Blvd.
26. Peter & Adriana Oliver, 5219 Woodhead
27. Ed Follis, 1823 Bissonnet
28. Frank & Jeanette Stokes, 1826 Wroxton Rd.
29. Steven Lin & Dr. Yi-Wen Michelle Pu, 1710 South Blvd.
30. Howard & Phyllis Epps, 1936 Wroxton Rd.

19

1217
 CAUSE NO. 2013-26155
ORIGINAL pI J

Penelope Loughbead, et al. § IN THE DISTRICT COURT OF
§
v. §
§
1717 Bissonnet, LLC § 1571h JUDICIAL DISTRICT

CHARGE OF THE COURT

Members of the Jury:

After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
deliberations for any reason. I have given you a number where others may contact you in case of
an emergency.

Any notes you have taken are for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes are not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are
kept in a safe, secure location and not disclosed to anyone. After you complete your
deliberations, the bailiff will collect your notes. When you are released from jury duty, the
bailiff will promptly destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions.

I. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.

730
 3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you
must follow all of my instructions.

4. If my instnictions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or
answer is not important.

6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer
must be based on a preponderance of the evidence unless you are told otherwise. Whenever a
question requires an answer other than "yes" or "no," your answer must be based on a
preponderance of the evidence unless you are told otherwise.

The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "yes"
answer, then answer "no." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

7. Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide
on a dollar amount by adding up each juror' s amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I will answer this question
your way if you answer another question my way."

11. Unless otherwise instructed, the answers to the questions must be based on the
decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not
agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would
waste your time and the parties' money, and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.

A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses

731
who saw the act done or heard the words spoken. A fact is established by circumstantial
evidence when it may be fairly and reasonably inferred from other facts proved.

Definitions

A. Plaintiffs mean the property owners who are plaintiffs in this action:

l. Luong Nguyen, 1750 Wroxton Ct.
2. Lam Nguyen & Katherine Hoang, 1801 Bissonnet
3. Jamie Flatt, 1740 Wroxton Ct.
4. Penelope Loughhead, 1736 Wroxton Ct.
5. Donald Verplancken, 1734 Wroxton Ct.
6. Norman & Suannah Rund, 1726 Wroxton Ct.
7. Achim & Diana Bell, 5300 Southhampton Estates
8. Jeanne Meis, 5302 Southhampton Estates
9. Mary Van Dyke, 5304 Southhampton Estates
10. Ralph & Leslie Miller, 5306 Southhampton Estates
11 . Yin & Surong Zhang, 5310 Southhampton Estates
12. Martha Gariepy, 5308 Southhampton Estates
13. Stephen Roberts, 1804 Wroxton Rd.
14. Suzanne Powell, 5305 Southhampton Estates
15. Michelle Jennings & Dr. Michael Tetzlaff, 5309 Southhampton Estates
16. James & Allison Cli fton, 1714 Wroxton Ct.
17. Kimberley Bell, 1729 Wroxton Ct.
18. Richard & Mary Baraniuk, 1731 Wroxton Ct.
19. Dinzel Graves, 5219 Dunlavy
20. Kenneth Reusser & Xanthi Couroucli, 1801 Wroxton Rd.
21. Sarah Morian & Michael Clark, 1810 Bissonnet
22. Marc Favre-Massartic, 1812 Bissonnet
23. Raja Gupta, 1808 Wroxton Rd.
24. Earle Martin, 1811 Wroxton Rd.
25. Laura Lee & Dico Hassid, 1731 South Blvd.
26. Peter & Adriana Oliver, 5219 Woodhead
27. Ed Follis, 1823 Bissonnet
28. Frank & Jeanette Stokes, 1826 Wroxton Rd.
29. Steven Lin & Dr. Yi-Wen Michelle Pu, 1710 South Blvd.
30. Howard & Phyllis Epps, 1936 Wroxton Rd.

B. "1717 Bissonnet" means the defendant 1717 Bissonnet, LLC.

C. The " Project" means the 21-story mixed-use building that 1717 Bissonnet proposes to
construct at the comer of Bissonnet Road and Ashby St.

732
Question No. 1:

Is 1717 Bissonnet's proposed Project abnonnal and out of place in its surroundings such
that it will constitute a private nuisance if built?

1717 Bissonnet creates a "private nuisance" if its Project substantially interferes with
Plaintiffs' use and enjoyment of their land.

"Substantial interference" means that the Project must cause unreasonable discomfort or
unreasonable annoyance to a person of ordinary sensibilities attempting to use and enjoy the
person's land. It is more than a slight inconvenience or petty annoyance.

A nuisance, if it exists, is not excused by the fact that it arises from an operation that is in
itself lawful or useful.

Answer "Yes" or "No" for each plaintiff:

Plaintiff Answer

1. Luong Nguyen
1750 Wroxton Ct. ~es

2. Lam Nguyen & Katherine Hoang
180 l Bissonnet

3. Jamie Flatt
1740 Wroxton Ct.

4. Penelope Loughhead
1736 Wroxton Ct.

5. Donald Verplancken
1734 Wroxton Ct.

6. Nonnan & Suannah Rund
1726 Wroxton Ct.

7. Achim & Diana Bell
5300 Southhampton Estates ~e s

8. Jeanne Meis
5302 Southhampton Estates

9. Mary Van Dyke
5304 Southhampton Estates

733
IO. Ralph & Leslie Miller
5306 Southhampton Estates \.\ €.~

11. Yin & Surong Zhang
5310 Southhampton Estates \IC:~

12. Martha Gariepy
5308 Southhampton Estates '\\ C.0

13. Stephen Roberts
1804 Wroxton Rd. 1t~

14. Suzanne Powell
5305 Southhampton Estates '\ { '.>

15. Michelle Jennings & Dr. Michael Tetzlaff
5309 Southhampton Estates jtS

16. James & Allison Clifton
1714 Wroxton Ct. ~cs

17. Kimberley Bell
1729 Wroxton Ct. '\cs
18. Richard & Mary Baraniuk
1731 Wroxton Ct. 'll~

19. Dinzel Graves
5219 Dunlavy "1c

20. Kenneth Reusser & Xanthi Couroucli
1801 Wroxton Rd. \\ t'.:>

21. Sarah Morian & Michael Clark
1810 Bissonnet 10( '>

22. Marc Favre-Massartic
1812 Bissonnet No
23. Raja Gupta
1808 Wroxton Rd. JJD
24. Earle Martin
1811 Wroxton Rd. '\\ l :>

734
25. Laura Lee & Dico Hassid
1731 South Blvd. t-S c

26. Peter & Adriana Oliver
5219 Woodhead ND
27. Ed Follis
1823 Bissonnet NO
28. Frank & Jeanette Stokes
1826 Wroxton Rd. t-10
29. Steven Lin & Dr. Yi-Wen Michelle Pu
1710 South Blvd. s2
I
1£, l-0~

6. Norman & Suannah Rund
1726 Wroxton Ct. q~<~QO
•
lit i.5'1,50
7. Achim & Diana Bell
5300 Southhampton Estates l IA
<:!, DJ'f7 '2Dl it '11 7 fL.

736
8. Jeanne Meis
5302 Southhampton Estates 11,~qf. 20 I ll ,ti '72- S>C

9. Mary Van Dyke
5304 Southhampton Estates <2~, C/{:6, fcD ( '7 I r1 Q(e. f L

10. Ralph & Leslie Miller
5306 Southhampton Estates q+. 5(2.S', [{[
I
l~/1C5'. 7&;
/

11. Yin & Surong Zhang
5310 Southhampton Estates I C:2, rf'(,8. D<-~ 20, 41&. we
12. Martha Gariepy
5308 Southhampton Estates $5'6·, 0~5 OD l rz~ / ~ ·CO

13. Stephen Roberts
1804 Wroxton Rd. J.f1 (;: q,,-so Lf-1 kq'!J,50
14. Suzanne Powell
5305 Southhampton Estates 7..Ct {qfi ~5' l~14kJ. /2

15. Michelle Jennings & Dr. Michael Tetzlaff
5309 Southhampton Estates 11. lt/5 .co tr, 7if)-, Do
16. James & Allison Clifton
1714 Wroxton Ct. J.-~ ~"20. 3 0 I G£ .qh~l,}D
'
17. Kimberley Bell
1729 Wroxton Ct. )lfl~'1 ~-
J
l~,cw.ol'J

18. Richard & Mary Baraniuk
1731 Wroxton Ct. JJ,5q~.l 1 t I 4, 3'11 80
'
19. Dinzel Graves
52 19 Dunlavy 0 C)

20. Kenneth Reusser & Xanthi Couroucli
1801 Wroxton Rd. 3~&3~tet/ 3~ &3~. ~1

21. Sarah Morian & Michael Clark
I810 Bissonnet ([_/ ~

Marc Favre-Massartic
22.
1812 Bissonnet {;_; u

737
23. Raja Gupta
1808 Wroxton Rd. c C·
24. Earle Martin
1811 Wroxton Rd. 3 ft8 ,2, 3 ·':9 3G.if.t?,5"2

25. Laura Lee & Dico Hassid
1731 South Blvd. 0 0
26. Peter & Adriana Oliver
5219 Woodhead 0
27. Ed Follis
1823 Bissonnet 0 D
28. Frank & Jeanette Stokes
1826 Wroxton Rd. 0 0
29. Steven Lin & Dr. Yi-Wen Michelle Pu
1710 South Blvd. 0
30. Howard & Phyllis Epps
1936 Wroxton Rd. C)

738
 Presiding Juror:

1. When you go into the jury room to answer the questions, the first thing you will need to do is
choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to your deliberations;
b. preside over your deliberations, meaning manage the discussions, and see that you
follow these instructions;
c. give written questions or comments to the bailiff who will give them to the judge;
d. write down the answers you agree on;
e. get the signatures for the verdict certificate; and
f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

l. Unless otherwise instructed you may answer the questions on a vote of 10 jurors. The
same 10 jurors must agree on every answer in the charge. This means you may not have one
group of 10 jurors agree on one answer and a different group of 10 jurors agree on another
answer.

2. If 10 jurors agree on every answer, those l 0 jurors sign the verdict.

If 11 jurors agree on every answer, those 11 jurors sign the verdict.

If all 12 of you agree on every answer, you are unanimous and only the presiding juror
signs the verdict.

3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only l 0 or 11 of you agree on other answers. But when you
sign the verdict, only those 10 who agree on every answer will sign the verdict.

Do you understand these instructions? If you do not, pl

739
 Verdict Certificate

Check one:

A Our verdict is unanimous. All 12 of us have agreed to each and every answer. The
presiding juror has signed the certificate for all 12 of us.

GLt ~ ) . -r;/,-
Printed Name of Presiding Juror

Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the certificate below.

Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.

SIGNATURE NAME PRINTED

l.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

740
Table4: Building Impact Categories.
Severity Crack
Description of Typical Impact
of width
Category Impact
(Ease of repair is in bold font)
(mm)
0 Negligible Hairline cracks < 0.1
Fine cracks that can easily be treated during nonnal
Very
1 decoration. Perhaps isolated slight fracture in buildings. S: 1
Slight
Cracks in external brickwork visible on inspection.
Cracks easily filled . Redecorating probably required.
Several slight fractures showing inside of building.
2 Slight Cracks are visible externally and some repainting may be S5
required externally to ensure weather tightness . Doors and
windows may stick slightly
The cracks require some opening up and can be
patched by a mason. Recurrent cracks can be masked 5-15
by suitable linings. Repainting of external brickwork and or
3 Moderate
possibly a small amount of brickwork to be replaced. Doors numberof
and windows sticking. Service pipes may fracture. Weather cracks> 3
tightness often imoaired.
Extensive repair work involving breaking out and
replacing sections of walls, especially over doors and 15-25 but
windows. Windows and door frames distorted, floor depends on
4 Severe
numberof
sloping noticeably. Walls leaning and bulging noticeably,
some loss of bearing in beams. Service pipes disrupted. cracks

This requires a major repair job involving partial or
Very complete rebuilding. Beams lose bearing, walls lean badly
5 and require shoring. Windows broken due to distortion. Danger Usually > 25
Severe
of instability

Based on the system developed by Burland and Wroth (1975).

PLAINTIFF'S
EXHIBIT
3(,' P01450
 Damage Impact to Homes
@ ®
~ 1.--.r ~ ~• -
-
Bell
• Severe to very severe damage -~ 5300
® - ~ -~·- Southampton

Moderate damage
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I ~ •a • I J>" -~" . /._:y ,,..y : .v I Y' : Y"- --- - :• • •
©-·cc- - ..................~ 1- --4----~---~---~----~ -\ -~- -~-%- - ·"
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80 0@0 [1) (i) @ _ e ® ®

Flatt Lough head Verplancken
Nguyen 1740 1736 1734
WroxtonCt.
Wroxton Ct. Wroxton Ct.
1750 PLAINTIFPS
WroxtonCt.
EXHIBIT
I S(o~