IN THE

TENTH COURT OF APPEALS

No. 10-08-00321-CV

HOT ROD HILL MOTOR PARK AND 

ROGER DEEWAYNE BROWN,

Appellants

v.

DONMICHAEL LUCAS TRIOLO,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 04-001812-CV-361

OPINION

Hot Rod Hill Motor Park is a race track located on Roger Deewayne Brown’s 

property. Donmichael Lucas Triolo sued Brown and Hot Rod Hill (hereinafter 

“Brown”), alleging that the track constitutes a nuisance. A jury found that the track 

constitutes a nuisance, and the trial court entered a final judgment permanently 

enjoining Brown from conducting any races of motorized vehicles for either 

competition or practice. Brown appealed the permanent injunction, which we affirmed. 

See Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565 (Tex. App.—Waco 2008, no pet.).
Hot Rod Hill Motor Park v. Triolo Page 2

Brown subsequently filed a motion to vacate, amend, or alter the permanent 

injunction on grounds that Triolo had sold his home located near the track. At the 

conclusion of a hearing on the motion, the trial court found that a change in 

circumstances had occurred, but that it was not sufficient to warrant dissolution or 

modification of the injunction. The trial court did not file findings of fact and 

conclusions of law as requested by Brown. On appeal, Brown maintains that the trial 

court erred by: (1) refusing to vacate the permanent injunction; (2) refusing to modify 

the permanent injunction; and (3) failing to file findings of fact and conclusions of law. 

We reverse and render.

PERMANENT INJUNCTION

A trial court may modify or vacate a permanent injunction because of changed 

conditions. See Tyler v. St. Louis Sw. Ry. Co. of Tex., 405 S.W.2d 330, 333 (Tex. 1966); see 

also Kubala Pub. Adjusters, Inc. v. Unauthorized Practice of Law Comm., 133 S.W.3d 790, 794 

(Tex. App.—Texarkana 2004, no pet.). “Changed conditions” include a change in the 

“factual situation or the controlling law.” Kubala, 133 S.W.3d at 795. We review a trial 

court’s ruling on a motion to modify or vacate a permanent injunction for abuse of 

discretion. See Chase Manhattan Bank & Bank One, N.A. v. Bowles, 52 S.W.3d 871, 879 

(Tex. App.—Waco 2001, no pet.).

Analysis

In issue one, Brown argues that the permanent injunction should be vacated 

because Triolo no longer has a property interest in any land surrounding the track, thus, 

he can no longer raise a nuisance claim and is no longer entitled to injunctive relief. 
Hot Rod Hill Motor Park v. Triolo Page 3

Triolo responds that an enforceable legal right to the affected property is not a 

prerequisite for asserting a nuisance claim, as a person’s “interests” need only be 

affected.

Triolo testified that he has sold his home near the track. During the week, he 

resides at a home in Calvert, Texas. On approximately half the weekends each year, 

however, he and his family stay at his parents’ residence near the track. Triolo

sometimes visits during the week when his parents want to see his children. The 

Triolos also keep some items, such as a baby bed, at the house. Although his father 

pays the bills and taxes, Triolo testified that his parents’ home is his permanent 

residence. He receives mail at this address, including his cellular telephone bill, and has 

listed this address on his driver’s license, voter registration, vehicle registration, most 

recent income tax return, and his wife’s voter registration.

Actionable nuisance involves an invasion of another’s interests. See City of Tyler 

v. Likes, 962 S.W.2d 489, 503 (Tex. 1997). A private nuisance may be asserted by those 

with “property rights and privileges in respect to the use and enjoyment of the land 

affected, including possessors of the land.” RESTATEMENT (SECOND) OF TORTS § 821E

(1979). A possessor is one who is (1) in occupation of the land with intent to control it; 

(2) in occupation of the land with intent to control it, if no other person has 

subsequently occupied it with intent to control it; or (3) entitled to immediate 

occupation of the land, if no other person is in possession. RESTATEMENT (SECOND) OF 

TORTS § 328E (1965).
Hot Rod Hill Motor Park v. Triolo Page 4

“Possession” is not limited to occupancy under a claim of some other 

interest in the land, but occupancy is a sufficient interest in itself to permit 

recovery for invasions of the interest in the use and enjoyment of the land. 

Thus members of the family of the possessor of a dwelling who occupy it 

along with him may properly be regarded as sharing occupancy with 

intent to control the land and hence as possessors, as defined in § 328E. 

When there is interference with their use and enjoyment of the dwelling 

they can therefore maintain an action for private nuisance. 

RESTATEMENT (SECOND) OF TORTS § 821E cmt. d (1979); see Ft. Worth & Rio Grande Ry. Co.

v. Glenn, 80 S.W. 992, 994 (Tex. 1904) (“If the damage be to the right of those occupying 

the property at the time, he must prove title, or at least a right of occupancy.”); see also

New v. Khojal, No. 04-98-00768-CV, 1999 Tex. App. LEXIS 6575, at *5 (Tex. App.—San 

Antonio Aug. 31, 1999, no pet.) (not designated for publication) (“[L]egal title is not a 

prerequisite for bringing trespass and nuisance claims;” “a plaintiff need only be a 

possessor of the property to have standing.”).

Accordingly, an occupancy interest in land is sufficient to vest a person with the 

right to assert a nuisance claim. See RESTATEMENT (SECOND) OF TORTS § 821E cmt. d; see 

also Glenn, 80 S.W. at 994; New, 1999 Tex. App. LEXIS 6575, at *5. We do not, however, 

construe this rule to include part-time occupants. The Restatement contemplates a 

situation where a person occupies land with intent to control it, such as where family 

members regularly occupy a home along with the actual owner of the home. See

RESTATEMENT (SECOND) OF TORTS § 328E; see also RESTATEMENT (SECOND) OF TORTS § 

821E cmt. d; Glenn, 80 S.W. at 994. For example, in New, the San Antonio Court found 

that a man residing in his deceased mother’s home could assert a nuisance claim for 

damage to the property. See New, 1999 Tex. App. LEXIS 6575, at *7. New had occupied 
Hot Rod Hill Motor Park v. Triolo Page 5

the home for several years, lived in the home with his girlfriend, her two children, and 

his grandson, paid for taxes and repairs, and believed himself to be the owner of the 

house after his mother died. Id. at *6-7.

Triolo’s occupancy does not rise to the level of that contemplated by the 

Restatement. He does not live at his parents’ home, but merely visits on some 

weekends. He does not pay taxes or bills associated with the property. The record does 

not suggest that he believes himself to be an owner of the property. Unlike New, Triolo 

is not a regular occupant of the home, but is at best a frequent visitor and; thus, fails to 

meet the definition of an occupant with intent to control the land. For this reason, 

Triolo cannot assert a nuisance claim and is no longer entitled to injunctive relief.

The trial court abused its discretion by failing to vacate the permanent injunction. 

We sustain issue one and need not address the remaining issues asserted by Brown. See

TEX. R. APP. P. 47.1. We reverse the court’s judgment and render judgment that the 

permanent injunction is vacated.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Reversed and rendered

Opinion delivered and filed July 8, 2009

[CV06]