Opinion issued August 28, 2018

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00488-CV

———————————

ROBERT GULLEDGE AND DIANA GULLEDGE, Appellants

V.

WARREN WESTER AND THEODORE SULLIVAN, Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 16-CV-1022

O P I N I O N

In this negligent nuisance case, Clear Lake Shores residents, Robert and Diana 

Gulledge, were permanently enjoined from finishing construction of a second story 

deck on their boathouse after two neighbors complained that the tall structure would 

block their water views. The Gulledges appeal, contending that there is legally and 
2

factually insufficient evidence to support the nuisance claim and injunction. 

Alternatively, they contend that the injunction is broader than the pleadings and 

evidence permitted.

We reverse and render.

Background

Roughly a dozen homes are located on Blue Point Road, a waterfront 

community in Clear Lake Shores. The homes are located in a “unique area” of the 

Clear Lake channel, where the water is particularly deep and provides direct access

to the Gulf of Mexico for large boats heading to sea. Through a licensing process 

with the State, residents can construct boathouses in the channel that function as 

garages for their boats. These combined features make the community attractive to 

people who own large boats and want to store them in attached boathouses. There 

are no other neighborhoods nearby with such deep-water access. 

One expert testified that it is “very difficult to find water this deep up to a 

residential lot. . . . It’s a very limited commodity, and it’s very valuable.” The expert

explained that there are only two places “in the Galveston Bay system” where 

someone can store boats 40-feet and longer behind their homes. According to the 

expert, there is “a relationship between the depth of the water and what size boats 

you might expect people would be able to utilize or berth behind their houses on 

Blue Point Road.” And “if it’s a big boat, it’s going to require a big boathouse.”
3

Another witness testified about the Blue Point subdivision, “You’re not limited to 

the size [boat] that you could bring in.” 

Thus, the ability to store a large boat at your home rather than at a marina is 

one of the attractions of the Blue Point subdivision. 

There are also aesthetic features that make the neighborhood attractive to 

homeowners. To varying degrees, community residents have views of the channel, 

Seabrook Shipyard, and the nearby Kemah bridge. From their properties, they can 

watch local boat parades and the “very busy” passing boat traffic entering and exiting 

the channel.

The Blue Point subdivision homeowners are bound by various community 

restrictions, including a restriction that home structures cannot be placed within five 

feet of the property lines or the waterline. But there are no community or city 

restrictions regarding the height of residents’ boathouses. The view of the channel

and other features is impacted by the size and design of neighboring boathouses. 

Many are close to 20 feet tall, and at least one is 25 feet tall.

1 They have varying 

lengths to accommodate the boats being stored, and one boathouse is 81 feet long. 

Some boathouses have an open design, while others are enclosed. Without 

community restrictions, Blue Point residents do not have complete control over their 

 

1

 According to a boathouse architect, the average heights vary from 14 to 28 feet. He 

has never designed a boathouse larger than 34 feet tall. 
4

water views, and the size and type of boathouse their neighbors chose to construct 

has the potential to diminish their water views. 

The homes on Blue Point Drive run north-south, and the channel is to the east 

of the homes. In 2011, Robert and Diana Gulledge bought a home between the 

homes of Warren Wester and Theodore Sullivan. Their homes, relative to one 

another, are shown on the diagram below:

The lots are relatively narrow. Most are 50 feet wide, but Sullivan’s is 70 feet 

wide. Like many of their neighbors, the Gulledges had a boathouse, which held a 

40-foot boat. In 2015, they bought a larger, 55-foot Azimut yacht and decided to 

construct a larger boathouse to store it. Their design called for a 60-feet long and 20-
5

feet wide boathouse with a height of 25 feet above mean tide. This height was 

necessary to provide sufficient clearance for the Azimut.2

The Gulledges submitted a construction application to the State’s General 

Land Office. This was required because the community’s boathouses are not located 

on private lands; they are located on State land. The GLO approves plans and grants 

a coastal easement that leases the State’s submerged land for use as a boathouse. The 

GLO reviews a proposed boathouse’s footprint but not its height. Thus, the GLO

reviews a boathouse’s length into the channel for navigation purposes but does not 

review its aesthetic impact. As part of the permitting process, GLO notified the 

Gulledges’ neighbors of their application and offered an opportunity to object. 

Sullivan objected to the proposed boathouse’s original location, asserting that 

it was too close to his property line and made access to his boathouse more difficult. 

After meeting with the GLO and Sullivan, the Gulledges agreed to move their 

proposed boathouse closer to the Wester property to the south and to knock down 

their existing boathouse, which was only two years old at the time. Sullivan agreed 

to withdraw his objection.

After they submitted their original construction plans, the Gulledges noticed 

that some other boathouses in Galveston County (but not in the Blue Point 

 

2

 The yacht is over 20 feet tall, sleeps six people, and has three cabins and a small 

kitchen. 
6

subdivision) had covered rooftop decks. Robert Gulledge testified that a deck on top 

of their boathouse would provide an area to socialize with family and friends and a 

clearer view of the boats coming down the channel. The Gulledges revised their 

plans to include a deck 25 feet above the water level, with an aluminum-covered 

roof at least 10 feet above the deck.3 The second story, like the first, would not be 

enclosed, but it would have a spiral staircase, side railings, “minimal” lighting, 

diagonal braces, and a small cargo lift without sides. The roof over the 1200-squarefeet deck would be supported by piers, and the new height of the boathouse would 

be 39.5 feet instead of the original 25-feet height. 

Wester and Sullivan objected to the redesign, asserting that the second story 

would block their view of the waterway. They testified that they had no objection to 

a boathouse that was comparable in height to their own—around 17 feet high—or to 

the first design for a 25-foot boathouse. The GLO informed Wester and Sullivan that 

it does not regulate boathouse height.4 The GLO approved the Gulledges’ boathouse

footprint and construction began. 

 

3

 The deck’s rooftop has a peak that is 3-feet 6-inches high. According to expert

testimony from an architect, if the roof was removed but the deck remained, a 

guardrail would still be required under applicable building codes. 

4 The GLO did, however, charge the Gulledges an additional fee for their boathouse’s 

second story, which is the agency’s custom because of the risk of increased debris 

in the water after a storm.
7

After the Gulledges obtained the GLO’s authorization and began the 

boathouse construction, Wester and Sullivan initiated the underlying suit, asserting

claims for intentional private nuisance, negligent private nuisance, and invasion of 

privacy. Wester and Sullivan focused their suit on and limited their request for 

injunctive relief to the second story.

At trial, Wester and Sullivan each testified that the Gulledges’ proposed 

boathouse blocked the water view from their property and that the boathouse was 

significantly larger than any other in the area. Wester and Sullivan each also stated—

and photographs confirm—that the second story deck allows its occupants to look 

down into their backyards. Additionally, Wester testified about some adverse health 

effects he attributes to the presence of the oversized boathouse, including higher

blood pressure.

Wester and Sullivan also presented testimony from two other residents who 

agreed that the Gulledges’ boathouse was unlike the others in the neighborhood. One 

testified that, if the Gulledges had built that boathouse next to his property, he would 

have moved. The other testified that the Gulledges’ boathouse blocks his water view

as well.

A local realtor testified that the Gulledges’ boathouse would decrease the 

value of Wester’s and Sullivan’s properties because of the diminished view, but he 

did not quantify the difference in value. He also testified that it would be harder to 
8

sell Wester’s and Sullivan’s properties because the Gulledges’ boathouse was “out 

of character.”

The Gulledges presented counter testimony from two neighbors that they were 

not bothered by the Gulledges’ boathouse. They also presented the testimony of 

another realtor, who testified that the Gulledges’ boathouse would benefit the value 

of the neighborhood properties by showing prospective buyers the potential to build 

larger boathouses in the community.

Wester and Sullivan assert that the second story of the Gulledges’ boathouse 

obstructs their water view. The Gulledges’ boathouse does not have siding; 

therefore, when empty, it only partially blocks the view the first 25 feet above water, 

but there would be additional view obstruction due to the planned railing, diagonal 

braces, and staircase leading to the second-story deck, as well as the proposed copper 

roof and gutter in the upper portion of the two-story structure and the piers that 

support the nearly 40-feet tall structure. When the Gulledges’ yacht is docked, the 

view would be more obstructed on the lower level, though the upper deck level 

would be unaffected. 

But it is undisputed that each Blue Point resident’s view is blocked to varying 

degrees by their neighbors’ boathouses. The Sullivan’s boathouse is 17 feet tall and 

has solid-wood siding; therefore, it completely blocks the Gulledges’ north-eastern 

view for the first 17 feet above water level. Robert Gulledge’s brother, Jed, owns 
9

land in the community and has a boathouse that is roughly 26 feet tall and 60 feet 

long. Another neighbor, Williams Keys, has a boathouse that is 81 feet long. And, 

to the extent some of the boathouses are not enclosed, when their owners have their 

boats docked, their neighbors’ views are obstructed by the docked boats. Moreover, 

the Gulledges’ yacht is not the only large boat in the neighborhood; at least two other

homeowners have yachts. 

Additional view obstruction is caused by landscaping choices. For example, 

Sullivan has a number of trees and extensive vegetation on his land that partially 

obstruct the Gulledges’ view. 

Still more potential view obstruction may result from the homes themselves. 

The community restrictions permit residents to build two-story homes as close as 

five feet from their neighbor’s property line and the waterline. A two-story house5

that is five feet from the waterline would partially obstruct the water views from the 

neighboring properties. 

These visual obstructions, however, are less significant from each owner’s 

second story. All three homeowners involved in this suit—the Gulledges, Sullivan, 

and Wester—have two-story homes, and their second stories are roughly 17 feet high 

and have large windows to provide a view of the channel. According to Robert 

 

5

Jed Gulledge has a home on Blue Point Road that is 55 feet above the normal tide 

of channel.
10

Gulledge, each owner can see passing ships and the Kemah bridge from their second 

stories even when his yacht is parked in the boathouse because of the difference 

between his boat height (21.5 feet) and the deck floor (25 feet) and because of the 

absence of siding on his boathouse. 

The jury found that the Gulledges did not intentionally cause a nuisance and 

that the boathouse did not invade Wester and Sullivan’s privacy. The jury found the 

Gulledges liable for negligent nuisance but awarded no past damages. After trial, the 

trial court rendered a judgment for negligent nuisance, including a permanent 

injunction. The permanent injunction limited the roof height of the Gulledges’ 

boathouse to 25 feet above mean high tide and prohibited use of the deck for social 

gatherings.

Standard of Review

In a legal-sufficiency review, the court determines whether reasonable and 

fair-minded people could arrive at the factfinder’s conclusion, after considering all 

evidence that supports the verdict and disregarding contrary evidence unless a 

reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 

2005). We will conclude that the evidence is legally insufficient to support the 

finding only if (1) there is a complete absence of evidence of a vital fact, (2) the 

court is barred by rules of law or evidence from giving weight to the only evidence 

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more 
11

than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the 

vital fact. Id. at 810. We review the evidence in the light most favorable to the 

judgment. Id. at 822.

Negligent Nuisance

In their first issue, the Gulledges challenge the legal sufficiency of the 

evidence supporting the negligent nuisance claim.

A. Definition of nuisance

The Texas Supreme Court recently undertook the task of clarifying private 

nuisance law. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 

2016). The Court explained that the law of “nuisance” seeks to balance a property 

owner’s right to use his property “as he chooses in any lawful way” against his duty 

to refrain from using it in a way that “injure[s] another.” Id. at 590–91 (quoting Gulf, 

Colo. & Santa Fe Ry. Co. v. Oakes, 58 S.W. 999, 1000 (Tex. 1900)). With that 

principle in mind, the Court defined “nuisance” as “a condition that substantially 

interferes with the use and enjoyment of land by causing unreasonable discomfort 

or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” Id.

at 593 (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).

According to the Crosstex Court, a nuisance does not refer to a cause of action 

but instead to “the particular type of legal injury that can support a claim or cause of

action seeking legal relief.” Id. at 594. “The law of nuisance recognizes that certain 
12

injuries to a person’s right to the ‘use and enjoyment of property’ can . . . constitute 

a form of legal injury for which a legal remedy will be granted.” Id. at 594.

The Court explained that “the condition the defendant causes may interfere 

with a wide variety of the plaintiffs’ interests in the use and enjoyment of their 

property. It may, for example, cause physical damage to the plaintiffs’ property, 

economic harm to the property’s market value, harm to the plaintiffs’ health, or 

psychological harm to the plaintiffs’ ‘peace of mind’ in the use and enjoyment of 

their property.” Id. at 596. In fact, the Court explained, “virtually any disturbance of 

the enjoyment of the property may amount to a nuisance.” Id. at 596 (quoting

WILLIAM L. PROSSER, LAW OF TORTS § 90 (3d ed. 1964)). 

But, importantly here, to rise to the level of nuisance, the interference must 

satisfy two other requirements: it must (1) be “substantial” in light of all the 

circumstances and (2) cause “discomfort or annoyance” that is “unreasonable.” Id.

at 595.6

 

6 The Court explained, for instance, that “while noises or odors from a horse stable 

might occasionally or minimally interfere with the enjoyment of neighboring land, 

they can create a nuisance only if the stable is so kept, or so used, as to destroy the 

comfort of persons owning and occupying adjoining premises, and impair their 

value.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 595 (Tex. 

2016) (internal quotations and citations omitted). Similarly, “because gunpowder 

must be stored somewhere, its storage can create a nuisance when it is a constant 

source of apprehension and alarm, prevents the plaintiffs from renting their land at 

any price, and substantially reduces the land’s market value.” Id. (internal 

quotations and citations omitted).
13

The first limitation—the substantiality requirement—“sets a minimum 

threshold that confirms that the law ‘does not concern itself with trifles, or seek to 

remedy all of the petty annoyances and disturbances of every day life in a civilized 

community even from conduct committed with knowledge that annoyance and 

inconvenience will result.’” Id. at 595 (quoting W. PAGE KEETON ET AL., PROSSER &

KEETON ON TORTS § 86 (5th ed. 1984)). The Court emphasized that foul odors, dust, 

noise, and bright lights must be “sufficiently extreme” to constitute a nuisance. Id. 

at 595 n.8.7In determining whether the interference is substantial, a court may 

review whether the use impairs the adjoining property’s market value. Id. at 595.

The substantiality test is fact-specific and includes, “for example, the nature and 

extent of the interference, and how long the interference lasts or how often it recurs.” 

Id. at 595–96.

The second limitation is that the “discomfort or annoyance” must be

unreasonable—i.e, that ‘“the harm resulting from the invasion is severe and greater 

than the other should be required to bear without compensation.” Id. at 596 (quoting 

 

7 The Court quoted but added an emphasis to its 2004 opinion in Schneider National 

Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004), holding modified on other 

grounds, Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 

474 (Tex. 2014), when it included the following sentence in footnote eight: “There 

is no question that foul odors, dust, noise, and bright lights—if sufficiently 

extreme—may constitute a nuisance.” Id. at 595 n.8. 
14

RESTATEMENT (SECOND) OF TORTS § 829A).8 The Court emphasized that the 

unreasonableness inquiry focuses on the conduct’s effect, not the conduct itself, id.

at 596–99, and that the test is an objective one that views the effect from the 

standpoint of a “persons of ordinary sensibilities.” Id. at 596, 599–600. This 

reasonableness “determination requires balancing a wide variety of factors, 

depending on the specific facts.” Id. at 596; see id. at 600–01 (“To establish a cause 

of action for which the law provides a right to relief, . . . there must not only be an 

injury or loss but it must have been occasioned by the commission of a legal wrong, 

that is, violation of legal right and a breach of legal duty.” (internal quotations and 

citations omitted)).

Finally, the Court set forth a liability standard of care. Id. at 604. There are 

three classifications for private nuisance: intentional nuisance, negligent nuisance, 

and strict-liability nuisance. Id. at 602, 604–609. A negligent nuisance “claim is 

governed by ordinary negligence principles.” Id. at 607. Accordingly, Wester and 

Sullivan were required to prove that the Gulledges owed them a duty, they breached 

the duty, and Wester and Sullivan suffered damages as a proximate cause of the 

breach. See id. In addition, Wester and Sullivan had to prove that the Gulledges’ 

“negligent conduct caused a nuisance, which in turn resulted in [Wester’s and 

 

8 The Court also described the nuisance created by a horse stable as “destroy[ing] the 

comfort of persons owning and occupying adjoining premises, and impair[ing] their 

value.” Id. at 595.
15

Sullivan’s] damages.” Id. Thus, “a nuisance may result from ‘a failure to take 

precautions against a risk apparent to a reasonable man.’” Id. (quoting PROSSER,

LAW OF TORTS § 88).

B. Wester and Sullivan did not show a substantial interference that 

unreasonably affects their use and enjoyment of their property

The Gulledges contend that a view impairment cannot support a nuisance

claim. On the other hand, Wester and Sullivan maintain that Crosstex left the issue 

of whether a nuisance exists to the jury. Id. at 609 (observing that questions of 

whether interference with use and enjoyment of property is “substantial” or “the 

effects of such an interference on the plaintiffs are unreasonable” are generally 

“questions of fact for the jury to decide”).

9

We conclude that it is unnecessary for us to determine whether Texas law, 

post-Crosstex, erects a bright-line barrier against all view-impairment nuisance 

claims because there is legally insufficient evidence of a substantial inference that 

unreasonably affects Wester’s and Sullivan’s use and enjoyment of their land. See 

id. at 609 (“A court may decide the issues as a matter of law only if the underlying 

facts are undisputed or, in light of all the evidence, reasonable minds cannot differ.”

(internal quotations and citations omitted)). While the witnesses differ in their 

 

9

 See id. at 600 (stating that “determination of whether a defendant’s interference with 

a plaintiff’s use and enjoyment of land is substantial or whether any particular effect 

of that interference is unreasonable requires consideration and balancing of a 

multitude of factors”).
16

conclusions about the impact of the Gulledges’ boathouse, the photographs show the 

extent of the visual impairment, and the testimony regarding the neighborhood and 

other landowners’ relative conduct is undisputed. We turn to applying the undisputed 

facts to the Crosstex factors for measuring the impact of the boathouse’s 

interference.

First, we examine “the nature of the interference.” Id. at 609. There was no 

invasion onto the plaintiffs’ property. Unlike cases where light, odor, or smoke

invade an adjoining property, the effect of the Gulledges’ conduct was not on the 

plaintiffs’ land itself. Even if view impairment could potentially have economic or

psychological effects, Wester and Sullivan did not present any expert testimony 

quantifying any economic harm. And the jury, in its response to the damages jury 

question, rejected a psychological harm claim: it found that Wester and Sullivan did 

not suffer any “damages for annoyance or discomfort, caused by a nuisance that 

impairs the use and enjoyment of real property.”

Second, we consider “the character and nature of the neighborhood, each 

party’s land usage, and social expectations” as well as “the extent to which others in 

the vicinity are engaging in similar conduct.” Id. at 600. These factors underscore

that the record presents no substantial and unreasonable interference. The unique 

characteristics of the subdivision and the channel show that the use of large 

boathouses (which impair water views) is not unexpected. There were no deed 
17

restrictions, city regulations, or GLO provisions that regulated the sizes of 

boathouses. The subdivision landowners purchased their homes with knowledge that 

city regulations permitted homes to be built higher than the Gulledge’s boathouse 

and as close as five feet from the water, which would create an even larger visual 

impairment than the Gulledges’ boathouse. Wester and Sullivan knew that the 

channel was deep and led to Galveston Bay, making it a prime location for yachts. 

Indeed, they purchased their properties, in part, so they could watch parades of 

yachts and other boats. And if the landowners owned and temporarily docked a yacht 

outside their homes, the moored boats would block an adjoining neighbor’s view of 

the channel. If the yacht owners wanted to store their boats adjacent to their own 

property, as Wester and Sullivan do for their boats, they would need comparatively 

large boathouses to store them. Indeed, Wester and Sullivan have boats and 

boathouses that would be viewed by many as large. Other landowners had yachts 

even longer than the Gulledges’ new yacht, and boathouses are the one constant 

feature for all neighboring homes. Thus, social expectations were that homeowners 

could purchase the lots with the plan to store yachts there in their accompanying 

boathouses. The vegetation, particularly tall trees, creates additional visual 

obstructions. And the narrow lot size and resulting density, as well as the close 

proximity of the homes to their boathouses, add even more visual obstructions and 

present an obvious risk of additional visual obstructions. As noted, Wester and 
18

Sullivan do not challenge all these present visual obstructions to their view. They 

instead challenge the open-sided second story of the Gulledges’ boathouse. 

Considering the parties’ reasonable expectations and the already present view 

impairment, this record presents no evidence that the second story of the boathouse

caused a substantial interference that unreasonably affected what Wester and 

Sullivan could and should have expected.

The “defendant’s motive” is another factor for determining whether any

interference is substantial or its effects unreasonable. Id. The jury rejected the claim

of intentional interference. And the undisputed evidence showed that the Gulledges 

took some steps to minimize the visual obstructions. First, they moved the boathouse 

to accommodate Sullivan. Then, they elected not to add wooden siding so as to 

minimize the visual impairment caused by the boathouse. Next, they designed other 

features, such as the handrails, cargo elevator, and staircase, to minimize the visual 

obstruction caused by the second story. Short of not erecting a cover or handrails for 

a deck, Wester and Sullivan have not identified anything that could be done to 

minimize the visual obstruction created by a second-story deck. 

Finally, we examine the extent of the interference and how long it lasts or how 

often it reoccurs. Id. at 595–96. The Gulledges testified that they intend to dock their 

boat at their Blue Point residence three-to-four months annually, so the full extent 

of the obstruction will last less than eight or nine months annually. Regardless of its 
19

height, the Gulledges’ boathouse does not impair Wester’s and Sullivan view 

looking immediately east to the ship channel from their land. It does, however, 

impair their view if they look to the direction where the Gulledges’ boathouse stands 

(i.e., if Wester looks to the northeast and Sullivan looks to the southeast). But the 

obstruction created by the Gulledges’ boathouse’s second story is only partial; while 

impaired, photographs show that residences can see through the open-sided second 

story of the boathouse. In contrast, the Sullivan’s boathouse obstructs the view for 

the first 17 feet even more than the Gulledges’ boathouse because its sides are 

covered with solid wood, while the Gulledges’ boathouse has no siding. The 

Gulledges’ boathouse is a partial—not total—visual obstruction. Bob Randall, an 

architect who designed the boathouses for Wester, Sullivan, and the Gulledges, 

testified that the Gulledges’ boathouse is “two floating planes supported by wood 

structure piles that are 70 feet long. Architecturally the roof plane and the deck plane 

are separate. And approximately 80 percent of that side area is open so that one can 

view through the structure. It does not have a mansard roof or an appendage hanging 

down or wall-type that restricts the view corridor.”

Wester and Sullivan argue that, because they presented multiple people in the 

neighborhood to testify that the Gulledges’ boathouse would disturb their 

sensibilities, they have presented evidence in support of this element of their 

negligent nuisance action. But this argument overlooks the Crosstex Court’s holding 
20

that, to rise to the level of a nuisance, the defendant’s conduct must substantially 

interfere with and unreasonably affect the use and enjoyment of property. See id. at 

593–94. Those two requirements are not satisfied on this record, given that the 

second story is open with only the supporting structural beams and the narrow deck 

and roof-line planes obstructing the views.

Finally, Wester and Sullivan argue that their negligent nuisance claim is 

supported by the manner in which the Gulledges obtained permits from the GLO and 

the Army Corps. Wester and Sullivan recognize that the GLO and Army Corps do 

not regulate the height of structures that extend into the water. Yet they argue that 

the boathouse “was non-compliant with the plans originally approved” because the 

ultimate height was greater than the originally-proposed height.10 Likewise, they 

argue that “the Gulledges did not notify the neighbors of the additional height added 

to the boathouse” without establishing that the Gulledges had any obligation to 

notify them of such or how this led to any legal injury. These arguments do not 

 

10 Wester and Sullivan argue in their brief that “the evidence at trial was that the only 

permit the Gulledges ever received . . . did not authorize any construction over 25 

feet. This alone would support the jury’s finding of negligence.” There are a number 

of problems with this argument. They cite no authority in support of their assertion. 

It is inconsistent with their concession elsewhere in their brief that the GLO and 

Army Corps do not regulate the height of structures. They brought a negligent 

nuisance claim, not a general negligence claim, and the jury was instructed on 

negligent nuisance. And they provide no explanation for how they have standing to 

complain about the permitting process.
21

change the nature and character of the neighborhood or the nature and character of 

the interference. 

The evidence is legally insufficient to support the judgment against the 

Gulledges for negligent nuisance and the related injunction. We therefore sustain the 

Gulledges’ first issue.11

Conclusion

We reverse the trial court’s judgment on Wester’s and Sullivan’s negligent 

nuisance claim and render a take nothing judgment against Wester and Sullivan.

Harvey Brown

Justice

Panel consists of Justices Higley, Brown, and Caughey.

Justice Higley, concurring.

 

11 Because it would not result in greater relief, we do not reach the Gulledges’ 

remaining two issues concerning the factual sufficiency of the evidence and the 

scope of the injunction. See TEX. R. APP. P. 47.1.