Texas Appellate Court Says No Prospective Damages and No Injunction in Ashby High Rise Nuisance Case

According to the Texas 14th Court of Appeals, for projects not yet built, nuisance damages are not recoverable and injunctions are difficult to obtain.

In 1717 Bissonnet, LLC v. Loughhead, the Court reversed a damage award for homeowners near the Ashby High Rise, a proposed 21 story residential/restaurant project in Houston’s Museum District. 

The Court held that Texas law does not allow damage claims for prospective nuisances.  Also, while an injunction to stop a proposed project is theoretically possible, in reality it can be very hard to get, and the Court of Appeals upheld the decision of the trial court not to issue an injunction stopping this project.

The homeowners had sued the project owner, claiming that the project will be a nuisance because it would substantially interfere with the homeowners’ properties and be abnormal and out of place in this location.  (Houston’s Museum District includes some of the city’s most notable and expensive homes.)  The jury found that the project will be a permanent nuisance, and awarded a total of approximately $1.2 million in lost market value damages to various homeowners.

After these jury findings, the homeowners asked the trial court judge to issue an injunction forbidding construction of the project.  Alternatively, the homeowners requested a judgment for the damages assessed by the jury.

The trial court judge refused to enjoin the project, but did enter a judgment that would allow the homeowners to recover the damages.

On appeal, the 14th Court of Appeals reversed the damage award and upheld the decision not to enjoin the project, a big win for the project owner.  The only good news for the homeowners was that the Court stated that they have not lost their right to seek damages in a new suit, should an actual interference with their property ever arise.  (The recent Texas Supreme Court decision in Crosstex v. Gardiner, the subject of last week’s alert, may make claims based on an actual interference more difficult.  In Crosstex, the Texas Supreme Court essentially eliminated strict liability in nuisance cases, even for projects that are abnormal and out of place.) 

For Projects Not Yet Built, Damages Are Impossible and Injunctions Are Very Difficult

The Court of Appeals determined that Texas law simply does not allow claims for damages as to projects not yet built, even if a jury determines that the project, once completed, will be a nuisance. 

Also, while the Court acknowledged that injunctive relief is theoretically available as to prospective nuisances, the Court of Appeals upheld the trial court’s decision that injunctive relief was not appropriate in this case.  One of the big challenges in obtaining an injunction against a prospective project is that the project owner will probably change the project after issuance of an injunction, and the court will need to determine if the changes are sufficient to avoid violating the injunction.  For a complex project such as this, either the court will need to consider repeated requests for rulings as the project owner makes changes to the proposed project, or the court will become essentially a zoning board, describing detailed components of the project necessary to avoid being a nuisance.  Courts generally want to avoid both protracted litigation and becoming an unelected zoning board.  These considerations appeared to influence the trial court and the Court of Appeals in their refusal to enjoin the project.  While theoretically possible, obtaining an injunction as to a complex prospective project is very difficult in Texas. 


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