NO. 14-14-00589-CV

IN THE COURT OF APPEALS

FOURTEENTH JUDICIAL DISTRICT

HOUSTON, TEXAS 

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/CROSSAPPELLANTS 

ORAL ARGUMENT REQUESTED

ACCEPTED

14-14-00589-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

4/8/2015 6:57:49 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 6:57:49 PM CHRISTOPHER A. PRINE Clerk
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 wellfounded. 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 mixeduse 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 “passby 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 documentsrelating 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 

121PX361.

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 computergenerated 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
1271

NO. 2013-26155 

PENELOPE LOUGHHEAD, HOWARD § 

EPPS, PHYLLIS GRIFFIN EPPS, EARLE § 

MARTIN, JEANNE MEIS, STEPHEN § 

GLYNN ROBERTS, RICHARD G. § 

BARANIUK, MARY SARAH BARANIUK, § 

JAMES O. CLfFTON, ALLISON KELLY § 

CLIFTON, JAMIE FLA TT, 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 § 

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. § 

GRAYES, MICHELLE JENNrNGS, § 

STEVEN K. LrN, SARAH C. MORIAN, § 

YI-WEN MlCHELLE PU, MICHAEL § 

TETZLAFF, SURONG ZHANG, YrN § 

ZHANG, RAJA GUPTA, DlCO HASSID, § 

LAUl~A R. LEE, DONALD VERPLANCKEN § 

§ 

Plaintiffs, § 

§ 

v. § 

§ 

1717 BISSONNET, LLC. § 

§ 

Defendant § 

7/10/2014 4:52:57 PM 

Chris Daniel - District Clerk 

Harris County 

Envelope No: 1789424 

By: COOPER, USA L 

JN THE DISTRICT COURT OF 

HARRIS COUNTY, TEXAS 

157th JUDICIAL DISTRICT 

Jury Demanded 

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 of 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- \ 

oc 
1272

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. 

I 0. Ralph and Leslie Mill er, joinrly - $94,528.80. 

11. Yin and Surong Zhang, jointly - $I 02,483.00. 
1273

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, 
1274

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 
1275

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 PLAINTIFFS 

.J848-4 I I0-8507. \' 2 
1199

Penelope Loughhead, et al. 

v. 

1717 Bissonnet, L.L.C. 

CAUSE NO. 2013-26155 

§ 

§ 

§ 

§ 

§ 

Opinion and Order 

In the District Court of 

Harris County, Texas 

15th Judicial District 

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 

1 Defendant's Ex. 104. 

RECORDER'S MEMORANDUM 

This Instrument Is of poor quality 

at the time of Imaging 

FILED 

Chris Daniel 

District Clerk 

MAY 1 ·9--0 I~ 1 

Time: --.,.,--~-~-----­ Ha• ri.;. Cc1

.::":iy. T &:xx; 
1200

neighborhood group called Stop Ashby High Rise was created and 

signs in opposition to the Project appeared throughout the 

neighborhood. 

The City of Houston initially approved the developer's Traffic 

STOP 

HBY 

HIGH ~~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 
1201

• 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 
1202

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. 2014. 

4 
1203

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 
1204

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 
1205

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 
1206

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 
1207

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 
1208

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 
1209

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 
1210

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 
1211

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 injunctiondevelopers 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 
1212

Rather, this Court must simply balance the equities. On balance, the Court concludes that an 

in junction 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 
1213

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 
1214

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 
1215

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 
1216

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. 

18 

Hon. Randy Wil on 

Judge l 57th ist. Court 
1217

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 W roxton 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 
730

Penelope Loughbead, et al. 

v. 

1717 Bissonnet, LLC 

Members of the Jury: 

ORIGINAL p I J 

CAUSE NO. 2013-26155 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

1571h JUDICIAL DISTRICT 

CHARGE OF THE COURT 

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. 
731

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 
732

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 Clifton, 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. 
733

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: 

1. 

2. 

Plaintiff 

Luong Nguyen 

1750 Wroxton Ct. 

Lam Nguyen & Katherine Hoang 

180 l Bissonnet 

3. Jamie Flatt 

4. 

5. 

6. 

7. 

8. 

9. 

1740 Wroxton Ct. 

Penelope Loughhead 

1736 Wroxton Ct. 

Donald Verplancken 

1734 Wroxton Ct. 

Nonnan & Suannah Rund 

1726 Wroxton Ct. 

Achim & Diana Bell 

5300 Southhampton Estates 

Jeanne Meis 

5302 Southhampton Estates 

Mary Van Dyke 

5304 Southhampton Estates 

Answer 

~es 

~e s 
734

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 "1c 5219 Dunlavy 

20. Kenneth Reusser & Xanthi Couroucli 

\\ t'.:> 1801 Wroxton Rd. 

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 :> 
735

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-1 0 

29. Steven Lin & Dr. Yi-Wen Michelle Pu 

1710 South Blvd. <lo 

30. Howard & Phyllis Epps 

1936 Wroxton Rd. "10 
736

Answer Question 2 if you answered "Yes" for any plaintiff in Question No. 1. Answer 

only with respect to those plaintiffs, if any, for whom you answered "Yes" in Question No. I. 

Otherwise, do not answer Question No. 2. 

Question No. 2: 

What sum of money, if paid now in cash, would fairly and reasonably compensate 

plaintiffs for their damages, if any, proximately caused by the nuisance? 

Consider the elements of damages listed below and none other. Consider each element 

separately. Do not award any sum of money on any element if you have otherwise, under some 

other element, awarded a sum of money for the same loss. That is, do not compensate twice for 

the same loss, if any. Do not include interest on any amount of damages you find. 

1. Loss of Market Value. Consider the difference in market value of each plaintiffs 

property caused by the nuisance. Market value means the amount that would be paid 

in cash by a willing buyer who desires to buy, but is not required to buy, to a willing 

seller who desires to sell, but is under no necessity of selling. 

2. Loss of Use and Enjoyment of the Property. 

Answer separately, in dollars and cents, for damages, if any. 

Plaintiff 

1. 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 

Loss of Market 

Value Answer 

1>s<t- . . . ,t·sb 

2s-q5z. "l.5"" 

5j 't' gy~ 

t;o, 2-B8 

']2l 2.!>2 I 

q~<~QO • 

<:!, D J'f7 l IA 

Loss of Use & 

Enjoyment Answer 

11 !f2D.-:2.D 

:t5, Cij32.).5 

2[ . 2..2'2 I 

2.L,5?2. 

1£, l-0~ 

lit i.5'1,50 

'2Dl it '11 7 fL. 
737

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', [{[ l~/1C5'. 7&; I / 

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 rz~ CO 

13. Stephen Roberts 

1804 Wroxton Rd. J.f1 (;: q ,,-so Lf-1 kq'!J,50 

14. Suzanne Powell 

5305 Southhampton Estates 7..C t{qfi 5' l~14kJ. / 2 

15. Michelle Jennings & Dr. Michael Tetzlaff 

5309 Southhampton Estates 11. lt/5.co tr, 7 if)-, 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 l~,cw.ol'J J 

18. Richard & Mary Baraniuk 

1731 Wroxton Ct. JJ,5q~.l t I 4, 3'11 80 ' 

19. Dinzel Graves 0 C) 52 19 Dunlavy 

20. Kenneth Reusser & Xanthi Couroucli 

1801 Wroxton Rd. 3~&3~tet/ 3~ &3~. ~1 

21. Sarah Morian & Michael Clark 

I 810 Bissonnet ([_/ ~ 

22. Marc Favre-Massartic 

1812 Bissonnet {;_; u 
738

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) 
739

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 
740

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. 
Table4: Building Impact Categories. 

Severity Description of Typical Impact 

Category of (Ease of repair is in bold font) Impact 

0 Negligible Hairline cracks 

Very Fine cracks that can easily be treated during nonnal 

1 decoration. Perhaps isolated slight fracture in buildings. 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 

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 

3 Moderate by suitable linings. Repainting of external brickwork and 

possibly a small amount of brickwork to be replaced. Doors 

and windows sticking. Service pipes may fracture. Weather 

tightness often imoaired. 

Extensive repair work involving breaking out and 

replacing sections of walls, especially over doors and 

4 Severe windows. Windows and door frames distorted, floor 

sloping noticeably. Walls leaning and bulging noticeably, 

some loss of bearing in beams. Service pipes disrupted. 

This requires a major repair job involving partial or 

5 Very complete rebuilding. Beams lose bearing, walls lean badly 

Severe and require shoring. Windows broken due to distortion. Danger 

of instability 

Based on the system developed by Burland and Wroth (1975). 

PLAINTIFF'S 

EXHIBIT 

3(,' 

Crack 

width 

(mm) 

< 0.1 

S: 1 

S5 

5-15 

or 

numberof 

cracks> 3 

15-25 but 

depends on 

numberof 

cracks 

Usually > 25 

P01450 
Damage Impact to Homes 

@ ® 

~ - 1.--.r ~ ~• -

• Severe to very severe damage ~ 

® ~ -~·-

Moderate damage 

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8 0 0@0 

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1750 

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Flatt Lough head Verplancken 

1740 

WroxtonCt. 1736 1734 

Wroxton Ct. Wroxton Ct. 

Bell 

5300 

Southampton 

I 

PLAINTIFPS 

EXHIBIT 

S(o~