Preview
Received and E-Filed for Record
9/13/2019 3:04 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Vanessa Medina
Cause No. 19-05-07051-CV
RIGBY OWEN, JR. and LUCINDA IN THE DISTRICT COURT OF
OWEN
v.
TRIPLE-B RV PARK, LAKESIDE,
LLC, MONTGOMERY COUNTY, TEXAS
PHILIP W. BULLOCK, JR.
SAMANTHA BULLOCK,
SHERI BULLOCK,
JEFF BULLOCK,
PAUL BULLOCK, and
TARA BULLOCK, all individually and
as members/managers of
TRIPLE-B RV PARK, LAKESIDE, 284th JUDICIAL DISTRICT
LLC
BENCH BRIEF IN SUPPORT OF ISSUING INJUNCTION AGAINST
BUILDING OF TRIPLE-B RV PARK, LAKESIDE, LLC
Preserving the status quo by issuing a
temporary injunction is critical to protecting
Plaintiffs’ from irreparable harm that is certain to
occur from the public and private nuisances
Defendants’ RV park will create. Plaintiffs evidence
proves the construction and operation of the RV
Park will create those nuisances and they should be
enjoined now before Defendants invest so much in
the park it would be too difficult to abate the
nuisances.
TO THE HONORABLE COURT:
Plaintiffs, Rigby Owen, Jr., and Lucinda Owen, file this Brief in support of
their request for issuance of a temporary injunction to prevent construction and
operation of an RV park near their home.
Page 1 of 19
Introduction and background facts
1. This case is essentially about the law of neighbors. Texas law holds
that people who live in close proximity must limit their activities on their own
property so as to limit any negative effect on their neighbors in the use and
enjoyment of their property. It is a given that people who live in planned unit
residential neighborhoods do so for the purpose of being away from commercial
activities that will disturb their peace and quiet.
2. Plaintiffs, who own property at 3607 Brookhaven Drive in Walden on
Lake Conroe subdivision, seek to enjoin Defendant’s construction and operation of
a commercial RV park at 3800 Brookhaven Drive within site, sound and smell of
the home they have lived in for 30 years and bought out of someone’s unfortunate
bankruptcy and built into a million dollar home. They will present evidence
Defendants’ planned development will cost them at least hundreds of thousands in
the value of their property. But the actual cost to them from the nuisances that will
be created is not capable of calculation or compensation in money damages.
3. If constructed the RV park would be the only commercial enterprise
operating in the neighborhood. The only access to the RV park site by land is to
drive from Walden Road, a two-lane road that is the main thoroughfare through the
Walden on Lake Conroe subdivision, onto Brookhaven Drive, which is a narrow
residential street, and follow that street for approximately three-fourths of a mile to
a sharp, right-hand turn of more than 90 degrees to where it turns into a private dirt
road. The entrance from Walden Road into Brookhaven is a portion of Walden
Road that is only two lanes wide with no shoulders and no left-hand turn lane. This
will result in serious traffic problems on Walden Road at that intersection. The
entrance to Brookhaven Drive is similarly only two lanes wide. And any RV driver
unfortunate enough to miss the turn onto Brookhaven Drive will have no simple
place to turn around and try again.
4. The RV Park, although otherwise a legal business, will be completely
out of place in its surroundings, which is a quiet residential neighborhood with
homes ranging in value from $300,000.00 to more than $1 million. Large
recreational vehicles using Brookhaven Drive to enter and leave the park will
Page 2 of 19
create severe traffic issues for the neighborhood. At times they will completely
block ingress and egress for residents such as Mr. and Mrs. Owen.
5. The purpose of this brief is two-fold – to inform the court of the
standards for issuing a temporary injunction to prevent a prospective nuisance and
to demonstrate Defendants’ RV park is the type of activity, that although legal, will
be a nuisance that negatively affects neighboring properties and can be enjoined
now. The court need not wait until an actual injury has occurred if that injury is
certain to occur.
Irreparable Injury
6. The overriding fact that compels issuance of an injunction is evidence
of an irreparable injury. An injury is irreparable if the injured party cannot be
adequately compensated in damages or if the damages cannot be measured by any
certain pecuniary standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002); Wright v. Sport Sup. Corp., 137 S.W.3d 289, 294 (Tex. App. – Beaumont
2004, no pet.)(irreparable injury existed because plaintiff’s damages were not
presently ascertainable or easily calculated).
7. Mr. and Mrs. Owen assert the construction and operation of the RV
park near their home will cause an incalculable loss in its value. Texas cases
discussed below, and going back to the 1850’s, stand for the proposition that a
business, though legal, may be enjoined from operating if it is out of place in its
surroundings and disturbs the use and enjoyment of neighboring properties. Here,
Defendants are proposing to operate an RV park in the middle of an existing
residential neighborhood, the only access being down a narrow residential street. It
could hardly be more out of place in its surroundings.
8. And although Texas courts have held it is usually not proper to enjoin
operation of an otherwise legal business in advance, the courts have allowed it
where the creation of a nuisance is reasonably certain to occur. That is regardless
of whether it is a nuisance per se (the mere fact of its existence is a nuisance) or a
nuisance per accident (the manner of its operation, though legal, creates a
nuisance).
Page 3 of 19
9. Plaintiffs will offer evidence the mere proposition of the RV park in
its proposed location has already severely and negatively affected the ability to sell
homes in the neighborhood. It will also seriously and negatively affect the persons
already living there because of the severe traffic problems it will create as large
recreational vehicles attempt to navigate the narrow street to get into and out of the
RV park.
Preserving the status quo
10. The purpose of a temporary injunction is to preserve the status quo of
the litigation pending a trial on the merits. Clint ISD v. Marquez, 487 S.W.3d 538,
555 (Tex. 2016); Butnaru, 84 S.W.3d at 204; and Walling v. Metcalf, 526 S.W.2d
526, 528 (Tex. 1975). The status quo is as follows:
a. Defendants have purchased the 3.29 acres of land;
b. Defendants have announced their plans to build the RV park on the
property;
c. The RV park is not yet built and operating.
d. Primary construction of the RV park has not begun.
11. If a temporary injunction is not issued, the following will occur:
a. Defendants have announced their intention to begin construction and will
begin construction (assuming the necessary permits are secured).
b. Defendants will have to use Brookhaven Drive to deliver construction
materials to the site, causing serious traffic problems in the residential
neighborhood during the construction phase.
c. Defendants will be able to complete construction and begin operation of
the RV park, causing actual and irreparable harm to Mr. and Mrs. Owen
and their neighbors.
Page 4 of 19
12. The permitting process may take some time. Plaintiffs are not asking
the court to prohibit Defendants from seeking any necessary permits, only from
actually beginning construction of the RV park while this case is pending.1
The elements required for injunctive relief
13. To show entitlement to a temporary injunction Mr. and Mrs. Owen
must show or do the following:
A. Permanent Relief: They must plead for some form of permanent relief,
either a cause of action recognized in Texas or, if injunctive relief is all
they seek, a permanent injunction. See Butnaru, 84 S.W.3d at 204.
Plaintiffs have alleged Defendants’ proposed RV park will create both
public and private nuisances if allowed to exist and are requesting a
temporary and permanent injunction to stop it from coming into
existence. They are trying to prevent the harm now, both to themselves
and in the severe loss that may occur to Defendants if they proceed with
construction but are ultimately enjoined from operating their business.
B. Probable right to relief: Mr. and Mrs. Owen must show they have a
probable right to the relief. See Butnaru, 84 S.W.3d at 204; Walling v.
Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Sun Oil Co. v. Whitaker, 424
S.W.2d 216, 218 (Tex. 1968). In other words plaintiffs must prove they
will likely succeed on the merits of their lawsuit. DeSantis v. Wackenhut
Corp., 793 S.W.2d 670, 686 (Tex. 1990). It is not necessary for Plaintiffs
to prove they are certain to prevail, only that there is a probability of
prevailing. Walling, 863 S.W.2d at 58; Sun Oil, 424 S.W.2d at 218.
Plaintiffs have produced substantial evidence the RV park will create
public and private nuisances if Defendants build and operate the RV park
as planned.
C. Probable injury: Mr. and Mrs. Owen must plead they will suffer a
probable injury. Butnaru, 84. S.W.3d at 204; Universal Health Servs. v.
1
It is Plaintiffs’ understanding Defendants have already secured a permit from the San Jacinto River Authority to
construct and operate an on-site sewer facility (OSSF or OSWF), but are still pending approval for a public water
well and for a general site permit from the Texas Commission on Environmental Quality).
Page 5 of 19
Thompson, 24 S.W.3d 570, 577 (Tex. App. – Austin 2000, no pet.).
Probable injury requires a showing that the harm is imminent, the injury
would be irreparable, and the applicant has no other adequate legal
remedy. Henry v. Cox, 483 S.W.3d 119, 137 (Tex. App. – Houston [1st
Dist.] 2015), rev’d on other grounds, 520 S.W.3d 28 (Tex. 2017);
Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex. App. –
Corpus Christi 2001, no pet.). Plaintiffs have offered evidence operation
of the RV park will cause severe disruption to the neighborhood and their
property, a severe loss in the value of the properties in the neighborhood
and to their own home in particular and that Defendants cannot afford to
compensate them. They have also alleged an ongoing and irreparable
public nuisance in the form of the permanent traffic problems and
hazards on their residential street that will exist if Defendants are allowed
to proceed. Irreparable injury will also occur to the Defendants if they are
allowed to proceed now but are later enjoined after they have spent
hundreds of thousands of dollars to construct an RV park but are enjoined
from operating it.
D. Inadequate remedy at law: There are several types of injury where
courts have held that any legal remedy was inadequate as a matter of law,
such as violation of statutory rights, violations of city ordinances, actions
that create a cloud on title to real property and irreparable injuries to
property. See, e.g., TEX. CIV. PRAC. & REM. CODE §65.001(5) (injury to
property). An injury to property is irreparable if it is ongoing and cannot
be compensated for by the payment of money damages, or the Defendant
has inadequate non-exempt resources to pay all the damages that may be
incurred. Plaintiffs believe the 3.29 acres of land, which appears to be the
only property owned directly by the corporate defendant, is worth
approximately $650,000.00. It was purchased on an owner-financed note
of $618,000.00 and is not owned free and clear of that lien. So,
essentially, Defendants do not have sufficient non-exempt resources to
pay the damages Mr. and Mrs. Owen and the other neighboring property
owners might suffer because of Defendants’ nuisances. The injury to the
property is also irreparable because, if Defendants are allowed to operate
as planned, the nuisances will be ongoing and the damage to Mr. and
Page 6 of 19
Mrs. Owen’s property will be continuous. In other words, even if
Defendants could compensate them now for the immediate loss in value
to their property, that one-time payment would not begin to compensate
them for their actual loss, which will be in the permanent loss of use and
enjoyment of their property. Texas law says property is unique, and there
is no other place Plaintiffs can go to get away from the nuisance that
would be an adequate substitute.
E. Ability to post bond: Mr. and Mrs. Owen are ready, willing, and able to
post a good and sufficient bond to indemnify the defendants if the court
later determines they wrongfully sued out the temporary injunction.
What is a nuisance?
14. The 2016 Texas Supreme Court opinion in Crosstex N. Texas
2
Pipeline, LP v. Gardiner provides the most comprehensive outline of the law in
Texas regarding nuisance to date. The term nuisance refers not to a defendant's
conduct or to a legal claim or cause of action but to a type of legal injury involving
interference with the use and enjoyment of real property. A defendant can be liable
for causing a nuisance if the defendant intentionally causes it, negligently causes
it, or, in limited circumstances, causes it by engaging in abnormally dangerous or
ultrahazardous activities. See Crosstex N. Texas Pipeline, LP v. Gardiner, 505
S.W.3d 580 (Tex. 2016).
15. It is Hornbook law that there are two kinds of nuisance, public and
private. Plaintiffs assert the RV park will cause both.
Public nuisance
16. The RV park will create a public nuisance by the inevitable traffic
problems attendant with large vehicles using a residential street to get to and from
the park. While it is true there will be maximum of 20 to 30 recreational vehicles at
the park at any one time, and some of those will be there permanently, Defendants
acknowledge some will be coming and going on a regular basis. Most modern
recreational vehicles are quite large, in excess of 30 feet in length and 7 feet in
width. As the evidence shows Brookhaven Drive is 26 feet wide from curb to curb.
2
505 S.W.3d 580 (Tex. 2016).
Page 7 of 19
There are many places along the street where residents and their guests legally park
on the street. There is inevitably going to be instances where a large RV cannot
navigate the street and will get stuck, blocking the street. There are going to be
some that will be unable to negotiate the sharp turn in front of Plaintiffs’ home.
17. Public nuisances in the form of blocked streets fall into two
categories: a permanent blockage of the street and a temporary blockage of the
street. Both can be enjoined. See, e.g., Burditt v. Swenson, 17 Tex. 489, 1856 Tex.
LEXIS 202 (1856) (a temporary but recurring blockage of the entrance to a retail
dry goods business by a neighboring livery stable was permanently enjoined).
18. Burditt v. Swenson is one of the few Texas cases involving temporary
but recurring blockages of a public street (Burditt, the dry goods store owner,
complained of many other aspects of the livery stable’s operation as causing a
nuisance to him and his business as well). Burditt owned a dry goods store on
Congress Street in Austin, Texas starting in about 1850. In 1852 Swenson
purchased the property next door on Congress Street and built a livery stable.
Burditt complained the stable’s operation created a nuisance because the street and
sidewalk was intermittently blocked with horses, mules, carriages, wagons and
others trying to enter and leave the livery stable. Besides the recurring blockage of
the street and sidewalk, during much of the year all of this traffic into and out of
the stable created large amounts of dust that permeated the dry goods store and his
merchandise. The stable itself created a nuisance because of the smells emanating
from it and the fire hazard.
19. Burditt brought suit in the Travis County District Court. For unknown
reasons venue was transferred to Hays County, where a jury found for Mr. Burditt.
The trial court then entered a permanent injunction that allowed the livery stable to
continue operating but laid down strict rules about that operation. It included
requiring the livery stable to block off the front entrance and move the entrance to
the other side of the building away from the store.
20. Both Burditt and Swenson appealed. Burditt complained the trial court
should have enjoined the livery stable from operating at all in that location.
Swenson complained his livery stable provided a business useful to the city and
that should be allowed to operate as it was.
Page 8 of 19
21. The Texas Supreme Court, writing through Justice Wheeler,
ultimately ruled the trial court should have permanently enjoined the livery stable
from operating in that location at all.
After the institution of this proceeding, the stable
appears to have been kept in a less annoying manner
tha[n] formerly, and, the witnesses say, as well as stables
are usually kept. Yet the amended petition charges it to
have been still a nuisance, and under the pleadings and
proof, the verdict establishes that it was such, as well
after as before the partial dissolution of the injunction, or
the partial injunction decreed. The finding of the jury is
inconsistent with any other conclusion than that they
believed the stable to be a nuisance as then kept.
17 Tex. 489, 503 1856 Tex. LEXIS 202 at 24.
22. An injunction is permitted in these types of cases because the injury,
as such, is not capable of being compensated by money damages. It is a constantly
occurring grievance, from day to day and year to year, which, in its nature, is
incapable of being estimated in dollars and cents, and cannot be prevented
otherwise than by an injunction. See Id. at 505, citing Story Eq. sec. 925, 16 Ves.
341.
23. Justice Wheeler explained the defendants could be prevented from
operating a livery stable at all.
Though the defendants should sustain inconvenience and
loss, they have no just cause of complaint. They were
aware of the plaintiff’s objections to their building their
stable in that place. Still they persisted, and even went on
to enlarge it after the institution of this proceeding. They
refused every offer of the plaintiff, either to be at the
expense of removing the stable, or of building one for
them of like dimensions elsewhere. They commenced
and consummated the establishment of the nuisance in
their own wrong. The maxim of the law is, use your own
rights and property so as not to injure that of another. The
legal proposition consequently being, that if one do an
Page 9 of 19
act in itself lawful, which being done in a particular place
necessarily tends to the damage of another’s property, it
is a nuisance. For it is incumbent on him to find some
other place to do that act, where it will not be injurious
to his neighbor, it was the duty of the defendants to find
some other place for their livery stable, where it would
not be so injurious or offensive as to deprive others of
their accustomed and rightful use and enjoyment of
their property. (emphasis added).
See Id. at 506, 27 (internal citations omitted).
24. Interestingly Justice Wheeler cited and discussed a similar case from
Georgia, Coker v. Birge, 10 Ga. 336, where the Georgia Supreme Court refused to
dissolve a temporary injunction prohibiting someone from erecting a livery stable
because of the apprehended danger it would be a nuisance, despite the promises of
defendant that he would keep the stable in a clean condition. See Id. at 504. “The
court refused to discharge the (temporary injunction) so far as to permit the
experiment to be made, because they deemed it improbable that what the defendant
proposed would be done.” See Id.
25. Fast forward to 2019 and the court should apply the same principles.
The RV park is going to cause a temporary but recurring blockage of Brookhaven
Drive, not just at the entrance to the RV park and Mr. and Mrs. Owen’s home, but
from Walden Road itself. Based on park rules published by Defendants this is
going to occur each Friday afternoon between 2:00 p.m. and 5:00 p.m. when
weekenders are trying to check in after the 2:00 p.m. check-in time but before the
office closes for the day at 5:00 p.m. The large recreational vehicles will be
backed up onto Brookhaven Drive into Walden itself waiting for permission to
enter the park, blocking the driveways of Plaintiffs and their neighbors, hindering
ingress and egress. It will occur again on Sundays (Mondays on holiday weekends)
before 11:00 a.m. when weekenders are trying to leave before being charged for
another day. Serious problems are going to occur if an RV that does not meet
Triple-B’s high standards drives into the park but is rejected and has to leave while
more RV’s are still trying to get into the park. The park itself will cause an increase
in vehicle traffic on Brookhaven Drive on a continuing basis. The increase in
passenger vehicle traffic itself might be tolerable if it were the only problem
caused by the park. But it will not be just normal passenger vehicles and pickup
trucks. The large recreational vehicles, trailers, etc. will be the real nuisance
Page 10 of 19
because they will block traffic on a temporary but recurring basis because the street
is just not designed for that kind of traffic.
26. The blockage of the street, while normally considered a public
nuisance, may also be a private nuisance if that activity has the effect of interfering
with the use and enjoyment of another’s private property.
Private nuisance
27. Turning the 3.29 acres into a commercial RV park is just not a
suitable activity on that property considering the character of the neighborhood.
The serious, negative effects it will have are going to cripple property values
because living there will be intolerable for the current residents and there will be a
serious lack of buyers willing to move in near it.
28. Although modern recreational vehicles may not create the foul odors
of horse dung at a livery stable, collectively the sewerage they will create that will
have to be handled on-site will be just as bad. The other activities, noises and
traffic congestion in what used to be a quiet, peaceful neighborhood will be so out
of character as to drive out the current residents and discourage others from
moving there.
29. Plaintiffs will present evidence that one potential home buyer already
gave up his earnest money when he walked away from a purchase because he
learned of the park’s eminent construction. There will be many more.
30. The Texas Legislature has declared the improper handling of
wastewater, sewerage, and the like from an on-site wastewater treatment facility, to
be a public health nuisance, i.e., a nuisance as a matter of law. See TEX. HEALTH &
SAFETY CODE §341.011 and the definition of on-site wastewater treatment facility
in Tex. Health & Safety Code §366.002. Any mischance or malfunction in the
operation of the wastewater treatment plant proposed to be used by Defendants
will result in a nuisance because of its proximity to Plaintiffs and other neighboring
properties. If it creates noxious odors as expected it will be a nuisance. If it attracts
flies, mosquitos or other parasites, it will be a nuisance. If it malfunctions and
causes effluent to be discharged on the ground, it will be a nuisance. If someone
puts hazardous chemicals down the drain it will likely contaminate the soil both on
and off the RV park property. If it floods, it will likely cause a discharge of
untreated wastewater. It appears that at least some of the equipment and drain field
are located in the 100-year flood plain.
Page 11 of 19
31. The Texas Supreme Court has concluded "A 'nuisance' is a condition
that substantially interferes with the use and enjoyment of land by causing
unreasonable discomfort or annoyance to persons of ordinary sensibilities
attempting to use and enjoy it.” See Crosstex N. Texas Pipeline, LP, 505 S.W.3d
at 593, citing Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003); see also
Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012); and
Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011).
32. The Crosstex North Texas Pipeline case is most instructive in the
present situation. Crosstex purchased a 20-acre site across the road from the
Gardiner ranch and ultimately purchased an easement across one corner of the
ranch on which to run a natural gas pipeline. It then constructed a large compressor
station on the 20 acres that consisted of four large diesel engines, at least one of
which was kept running at all times to increase the amount of natural gas that could
be pushed through the pipeline. See Crosstex N. Texas Pipeline, LP, 505 S.W.3d
at 588-590.
33. The noise created by the compressor engines was so great many of the
neighbors complained. Despite efforts by Crosstex to mitigate the noise, it
continued to affect the Gardiners so much they sued and won a $2 million jury
verdict. The Court of Appeals reversed the judgment and remanded the case for a
new trial, holding the evidence was legally sufficient but factually insufficient to
support the jury’s finding Crosstex had negligently created a nuisance. See Id. The
Supreme Court affirmed the Court of Appeals decision and remanded the case to
the trial court for a new trial using the nuisance principles it formulated in its
opinion. See Id. at 618.
34. The Crosstex case is instructive because it involves a similar situation
to the RV park and a similar factual analysis. Although there are major differences
in the settings, the nuisance principles the court should apply are the same.
Crosstex involved a rural setting, a lawful and useful business, and the serious
negative effects of that business on neighboring properties. Crosstex was in a
position to attempt efforts to mitigate the damages, although apparently
unsuccessfully as far as the Gardiners were concerned.
35. The RV park is in a suburban neighborhood setting where there are no
other commercial activities. Although the Walden on Lake Conroe subdivision
ends at the end of the public portion of Brookhaven Drive, the character and use of
Page 12 of 19
the properties on three sides of the proposed RV Park are all the same kinds of
single-family residences. To the extent there is any vacant land that land is used for
private recreation because it is near Lake Conroe or is held merely for investment
purposes.
36. Unfortunately for all involved, there is little to no way the RV park
can be operated in a manner that will not be a serious nuisance to its neighbors.
The on-site sewer treatment facility cannot be operated in a way that it will not
create obnoxious odors. There is no access to the park site except having
customers/tenants drive through the neighborhood with their large RV’s with its
attendant traffic problems and safety hazards.
37. The Supreme Court listed a number of factors a jury should consider
in determining whether a nuisance exists when the activity causing the nuisance is
otherwise lawful:
1. the character and nature of the neighborhood, each party's land
usage, and social expectations;
2. the location of each party's land and the nature of that locality;
3. the extent to which others in the vicinity are engaging in similar
conduct in the use of their land;
4. the social utility of each property's usage;
5. the tendency or likelihood that the defendant's conduct will cause
interference with the plaintiff's use and enjoyment of their land;
6. the magnitude, extent, degree, frequency, or duration of the
interference and resulting harm;
7. the relative capacity of each party to bear the burden of ceasing or
mitigating the usage of their land;
8. the timing of each party's conduct or usage that creates the conflict;
9. the defendant's motive in causing the interference; and
10.the interests of the community and the public at large.
See Crosstex N. Texas Pipeline, LP, 505 S.W.3d at 600.
38. Following is an analysis of the 10 factors in this case:
1. the character and nature of the neighborhood,
each party's land usage, and social expectations;
Page 13 of 19
The Brookhaven neighborhood has existed since
the early 1970’s. For all of that time it has been used for
upper middle-class to upper-class single-family
residences. Even the properties lying outside the
subdivision, to the extent they have been developed, have
been for similar residences. Any raw land has been used
for private recreational purposes, held merely for
investment or to have space between neighbors. There
are no commercial activities, including RV parks,
permitted in the Walden portion of the neighborhood.
Plaintiffs have not been able to identify any openly
commercial activities occurring on the land that lies
outside of the Walden
Preview
Received and E-Filed for Record 9/13/2019 3:04 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Vanessa Medina Cause No. 19-05-07051-CV RIGBY OWEN, JR. and LUCINDA IN THE DISTRICT COURT OF OWEN v. TRIPLE-B RV PARK, LAKESIDE, LLC, MONTGOMERY COUNTY, TEXAS PHILIP W. BULLOCK, JR. SAMANTHA BULLOCK, SHERI BULLOCK, JEFF BULLOCK, PAUL BULLOCK, and TARA BULLOCK, all individually and as members/managers of TRIPLE-B RV PARK, LAKESIDE, 284th JUDICIAL DISTRICT LLC BENCH BRIEF IN SUPPORT OF ISSUING INJUNCTION AGAINST BUILDING OF TRIPLE-B RV PARK, LAKESIDE, LLC Preserving the status quo by issuing a temporary injunction is critical to protecting Plaintiffs’ from irreparable harm that is certain to occur from the public and private nuisances Defendants’ RV park will create. Plaintiffs evidence proves the construction and operation of the RV Park will create those nuisances and they should be enjoined now before Defendants invest so much in the park it would be too difficult to abate the nuisances. TO THE HONORABLE COURT: Plaintiffs, Rigby Owen, Jr., and Lucinda Owen, file this Brief in support of their request for issuance of a temporary injunction to prevent construction and operation of an RV park near their home. Page 1 of 19 Introduction and background facts 1. This case is essentially about the law of neighbors. Texas law holds that people who live in close proximity must limit their activities on their own property so as to limit any negative effect on their neighbors in the use and enjoyment of their property. It is a given that people who live in planned unit residential neighborhoods do so for the purpose of being away from commercial activities that will disturb their peace and quiet. 2. Plaintiffs, who own property at 3607 Brookhaven Drive in Walden on Lake Conroe subdivision, seek to enjoin Defendant’s construction and operation of a commercial RV park at 3800 Brookhaven Drive within site, sound and smell of the home they have lived in for 30 years and bought out of someone’s unfortunate bankruptcy and built into a million dollar home. They will present evidence Defendants’ planned development will cost them at least hundreds of thousands in the value of their property. But the actual cost to them from the nuisances that will be created is not capable of calculation or compensation in money damages. 3. If constructed the RV park would be the only commercial enterprise operating in the neighborhood. The only access to the RV park site by land is to drive from Walden Road, a two-lane road that is the main thoroughfare through the Walden on Lake Conroe subdivision, onto Brookhaven Drive, which is a narrow residential street, and follow that street for approximately three-fourths of a mile to a sharp, right-hand turn of more than 90 degrees to where it turns into a private dirt road. The entrance from Walden Road into Brookhaven is a portion of Walden Road that is only two lanes wide with no shoulders and no left-hand turn lane. This will result in serious traffic problems on Walden Road at that intersection. The entrance to Brookhaven Drive is similarly only two lanes wide. And any RV driver unfortunate enough to miss the turn onto Brookhaven Drive will have no simple place to turn around and try again. 4. The RV Park, although otherwise a legal business, will be completely out of place in its surroundings, which is a quiet residential neighborhood with homes ranging in value from $300,000.00 to more than $1 million. Large recreational vehicles using Brookhaven Drive to enter and leave the park will Page 2 of 19 create severe traffic issues for the neighborhood. At times they will completely block ingress and egress for residents such as Mr. and Mrs. Owen. 5. The purpose of this brief is two-fold – to inform the court of the standards for issuing a temporary injunction to prevent a prospective nuisance and to demonstrate Defendants’ RV park is the type of activity, that although legal, will be a nuisance that negatively affects neighboring properties and can be enjoined now. The court need not wait until an actual injury has occurred if that injury is certain to occur. Irreparable Injury 6. The overriding fact that compels issuance of an injunction is evidence of an irreparable injury. An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Wright v. Sport Sup. Corp., 137 S.W.3d 289, 294 (Tex. App. – Beaumont 2004, no pet.)(irreparable injury existed because plaintiff’s damages were not presently ascertainable or easily calculated). 7. Mr. and Mrs. Owen assert the construction and operation of the RV park near their home will cause an incalculable loss in its value. Texas cases discussed below, and going back to the 1850’s, stand for the proposition that a business, though legal, may be enjoined from operating if it is out of place in its surroundings and disturbs the use and enjoyment of neighboring properties. Here, Defendants are proposing to operate an RV park in the middle of an existing residential neighborhood, the only access being down a narrow residential street. It could hardly be more out of place in its surroundings. 8. And although Texas courts have held it is usually not proper to enjoin operation of an otherwise legal business in advance, the courts have allowed it where the creation of a nuisance is reasonably certain to occur. That is regardless of whether it is a nuisance per se (the mere fact of its existence is a nuisance) or a nuisance per accident (the manner of its operation, though legal, creates a nuisance). Page 3 of 19 9. Plaintiffs will offer evidence the mere proposition of the RV park in its proposed location has already severely and negatively affected the ability to sell homes in the neighborhood. It will also seriously and negatively affect the persons already living there because of the severe traffic problems it will create as large recreational vehicles attempt to navigate the narrow street to get into and out of the RV park. Preserving the status quo 10. The purpose of a temporary injunction is to preserve the status quo of the litigation pending a trial on the merits. Clint ISD v. Marquez, 487 S.W.3d 538, 555 (Tex. 2016); Butnaru, 84 S.W.3d at 204; and Walling v. Metcalf, 526 S.W.2d 526, 528 (Tex. 1975). The status quo is as follows: a. Defendants have purchased the 3.29 acres of land; b. Defendants have announced their plans to build the RV park on the property; c. The RV park is not yet built and operating. d. Primary construction of the RV park has not begun. 11. If a temporary injunction is not issued, the following will occur: a. Defendants have announced their intention to begin construction and will begin construction (assuming the necessary permits are secured). b. Defendants will have to use Brookhaven Drive to deliver construction materials to the site, causing serious traffic problems in the residential neighborhood during the construction phase. c. Defendants will be able to complete construction and begin operation of the RV park, causing actual and irreparable harm to Mr. and Mrs. Owen and their neighbors. Page 4 of 19 12. The permitting process may take some time. Plaintiffs are not asking the court to prohibit Defendants from seeking any necessary permits, only from actually beginning construction of the RV park while this case is pending.1 The elements required for injunctive relief 13. To show entitlement to a temporary injunction Mr. and Mrs. Owen must show or do the following: A. Permanent Relief: They must plead for some form of permanent relief, either a cause of action recognized in Texas or, if injunctive relief is all they seek, a permanent injunction. See Butnaru, 84 S.W.3d at 204. Plaintiffs have alleged Defendants’ proposed RV park will create both public and private nuisances if allowed to exist and are requesting a temporary and permanent injunction to stop it from coming into existence. They are trying to prevent the harm now, both to themselves and in the severe loss that may occur to Defendants if they proceed with construction but are ultimately enjoined from operating their business. B. Probable right to relief: Mr. and Mrs. Owen must show they have a probable right to the relief. See Butnaru, 84 S.W.3d at 204; Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993); Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968). In other words plaintiffs must prove they will likely succeed on the merits of their lawsuit. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 686 (Tex. 1990). It is not necessary for Plaintiffs to prove they are certain to prevail, only that there is a probability of prevailing. Walling, 863 S.W.2d at 58; Sun Oil, 424 S.W.2d at 218. Plaintiffs have produced substantial evidence the RV park will create public and private nuisances if Defendants build and operate the RV park as planned. C. Probable injury: Mr. and Mrs. Owen must plead they will suffer a probable injury. Butnaru, 84. S.W.3d at 204; Universal Health Servs. v. 1 It is Plaintiffs’ understanding Defendants have already secured a permit from the San Jacinto River Authority to construct and operate an on-site sewer facility (OSSF or OSWF), but are still pending approval for a public water well and for a general site permit from the Texas Commission on Environmental Quality). Page 5 of 19 Thompson, 24 S.W.3d 570, 577 (Tex. App. – Austin 2000, no pet.). Probable injury requires a showing that the harm is imminent, the injury would be irreparable, and the applicant has no other adequate legal remedy. Henry v. Cox, 483 S.W.3d 119, 137 (Tex. App. – Houston [1st Dist.] 2015), rev’d on other grounds, 520 S.W.3d 28 (Tex. 2017); Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex. App. – Corpus Christi 2001, no pet.). Plaintiffs have offered evidence operation of the RV park will cause severe disruption to the neighborhood and their property, a severe loss in the value of the properties in the neighborhood and to their own home in particular and that Defendants cannot afford to compensate them. They have also alleged an ongoing and irreparable public nuisance in the form of the permanent traffic problems and hazards on their residential street that will exist if Defendants are allowed to proceed. Irreparable injury will also occur to the Defendants if they are allowed to proceed now but are later enjoined after they have spent hundreds of thousands of dollars to construct an RV park but are enjoined from operating it. D. Inadequate remedy at law: There are several types of injury where courts have held that any legal remedy was inadequate as a matter of law, such as violation of statutory rights, violations of city ordinances, actions that create a cloud on title to real property and irreparable injuries to property. See, e.g., TEX. CIV. PRAC. & REM. CODE §65.001(5) (injury to property). An injury to property is irreparable if it is ongoing and cannot be compensated for by the payment of money damages, or the Defendant has inadequate non-exempt resources to pay all the damages that may be incurred. Plaintiffs believe the 3.29 acres of land, which appears to be the only property owned directly by the corporate defendant, is worth approximately $650,000.00. It was purchased on an owner-financed note of $618,000.00 and is not owned free and clear of that lien. So, essentially, Defendants do not have sufficient non-exempt resources to pay the damages Mr. and Mrs. Owen and the other neighboring property owners might suffer because of Defendants’ nuisances. The injury to the property is also irreparable because, if Defendants are allowed to operate as planned, the nuisances will be ongoing and the damage to Mr. and Page 6 of 19 Mrs. Owen’s property will be continuous. In other words, even if Defendants could compensate them now for the immediate loss in value to their property, that one-time payment would not begin to compensate them for their actual loss, which will be in the permanent loss of use and enjoyment of their property. Texas law says property is unique, and there is no other place Plaintiffs can go to get away from the nuisance that would be an adequate substitute. E. Ability to post bond: Mr. and Mrs. Owen are ready, willing, and able to post a good and sufficient bond to indemnify the defendants if the court later determines they wrongfully sued out the temporary injunction. What is a nuisance? 14. The 2016 Texas Supreme Court opinion in Crosstex N. Texas 2 Pipeline, LP v. Gardiner provides the most comprehensive outline of the law in Texas regarding nuisance to date. The term nuisance refers not to a defendant's conduct or to a legal claim or cause of action but to a type of legal injury involving interference with the use and enjoyment of real property. A defendant can be liable for causing a nuisance if the defendant intentionally causes it, negligently causes it, or, in limited circumstances, causes it by engaging in abnormally dangerous or ultrahazardous activities. See Crosstex N. Texas Pipeline, LP v. Gardiner, 505 S.W.3d 580 (Tex. 2016). 15. It is Hornbook law that there are two kinds of nuisance, public and private. Plaintiffs assert the RV park will cause both. Public nuisance 16. The RV park will create a public nuisance by the inevitable traffic problems attendant with large vehicles using a residential street to get to and from the park. While it is true there will be maximum of 20 to 30 recreational vehicles at the park at any one time, and some of those will be there permanently, Defendants acknowledge some will be coming and going on a regular basis. Most modern recreational vehicles are quite large, in excess of 30 feet in length and 7 feet in width. As the evidence shows Brookhaven Drive is 26 feet wide from curb to curb. 2 505 S.W.3d 580 (Tex. 2016). Page 7 of 19 There are many places along the street where residents and their guests legally park on the street. There is inevitably going to be instances where a large RV cannot navigate the street and will get stuck, blocking the street. There are going to be some that will be unable to negotiate the sharp turn in front of Plaintiffs’ home. 17. Public nuisances in the form of blocked streets fall into two categories: a permanent blockage of the street and a temporary blockage of the street. Both can be enjoined. See, e.g., Burditt v. Swenson, 17 Tex. 489, 1856 Tex. LEXIS 202 (1856) (a temporary but recurring blockage of the entrance to a retail dry goods business by a neighboring livery stable was permanently enjoined). 18. Burditt v. Swenson is one of the few Texas cases involving temporary but recurring blockages of a public street (Burditt, the dry goods store owner, complained of many other aspects of the livery stable’s operation as causing a nuisance to him and his business as well). Burditt owned a dry goods store on Congress Street in Austin, Texas starting in about 1850. In 1852 Swenson purchased the property next door on Congress Street and built a livery stable. Burditt complained the stable’s operation created a nuisance because the street and sidewalk was intermittently blocked with horses, mules, carriages, wagons and others trying to enter and leave the livery stable. Besides the recurring blockage of the street and sidewalk, during much of the year all of this traffic into and out of the stable created large amounts of dust that permeated the dry goods store and his merchandise. The stable itself created a nuisance because of the smells emanating from it and the fire hazard. 19. Burditt brought suit in the Travis County District Court. For unknown reasons venue was transferred to Hays County, where a jury found for Mr. Burditt. The trial court then entered a permanent injunction that allowed the livery stable to continue operating but laid down strict rules about that operation. It included requiring the livery stable to block off the front entrance and move the entrance to the other side of the building away from the store. 20. Both Burditt and Swenson appealed. Burditt complained the trial court should have enjoined the livery stable from operating at all in that location. Swenson complained his livery stable provided a business useful to the city and that should be allowed to operate as it was. Page 8 of 19 21. The Texas Supreme Court, writing through Justice Wheeler, ultimately ruled the trial court should have permanently enjoined the livery stable from operating in that location at all. After the institution of this proceeding, the stable appears to have been kept in a less annoying manner tha[n] formerly, and, the witnesses say, as well as stables are usually kept. Yet the amended petition charges it to have been still a nuisance, and under the pleadings and proof, the verdict establishes that it was such, as well after as before the partial dissolution of the injunction, or the partial injunction decreed. The finding of the jury is inconsistent with any other conclusion than that they believed the stable to be a nuisance as then kept. 17 Tex. 489, 503 1856 Tex. LEXIS 202 at 24. 22. An injunction is permitted in these types of cases because the injury, as such, is not capable of being compensated by money damages. It is a constantly occurring grievance, from day to day and year to year, which, in its nature, is incapable of being estimated in dollars and cents, and cannot be prevented otherwise than by an injunction. See Id. at 505, citing Story Eq. sec. 925, 16 Ves. 341. 23. Justice Wheeler explained the defendants could be prevented from operating a livery stable at all. Though the defendants should sustain inconvenience and loss, they have no just cause of complaint. They were aware of the plaintiff’s objections to their building their stable in that place. Still they persisted, and even went on to enlarge it after the institution of this proceeding. They refused every offer of the plaintiff, either to be at the expense of removing the stable, or of building one for them of like dimensions elsewhere. They commenced and consummated the establishment of the nuisance in their own wrong. The maxim of the law is, use your own rights and property so as not to injure that of another. The legal proposition consequently being, that if one do an Page 9 of 19 act in itself lawful, which being done in a particular place necessarily tends to the damage of another’s property, it is a nuisance. For it is incumbent on him to find some other place to do that act, where it will not be injurious to his neighbor, it was the duty of the defendants to find some other place for their livery stable, where it would not be so injurious or offensive as to deprive others of their accustomed and rightful use and enjoyment of their property. (emphasis added). See Id. at 506, 27 (internal citations omitted). 24. Interestingly Justice Wheeler cited and discussed a similar case from Georgia, Coker v. Birge, 10 Ga. 336, where the Georgia Supreme Court refused to dissolve a temporary injunction prohibiting someone from erecting a livery stable because of the apprehended danger it would be a nuisance, despite the promises of defendant that he would keep the stable in a clean condition. See Id. at 504. “The court refused to discharge the (temporary injunction) so far as to permit the experiment to be made, because they deemed it improbable that what the defendant proposed would be done.” See Id. 25. Fast forward to 2019 and the court should apply the same principles. The RV park is going to cause a temporary but recurring blockage of Brookhaven Drive, not just at the entrance to the RV park and Mr. and Mrs. Owen’s home, but from Walden Road itself. Based on park rules published by Defendants this is going to occur each Friday afternoon between 2:00 p.m. and 5:00 p.m. when weekenders are trying to check in after the 2:00 p.m. check-in time but before the office closes for the day at 5:00 p.m. The large recreational vehicles will be backed up onto Brookhaven Drive into Walden itself waiting for permission to enter the park, blocking the driveways of Plaintiffs and their neighbors, hindering ingress and egress. It will occur again on Sundays (Mondays on holiday weekends) before 11:00 a.m. when weekenders are trying to leave before being charged for another day. Serious problems are going to occur if an RV that does not meet Triple-B’s high standards drives into the park but is rejected and has to leave while more RV’s are still trying to get into the park. The park itself will cause an increase in vehicle traffic on Brookhaven Drive on a continuing basis. The increase in passenger vehicle traffic itself might be tolerable if it were the only problem caused by the park. But it will not be just normal passenger vehicles and pickup trucks. The large recreational vehicles, trailers, etc. will be the real nuisance Page 10 of 19 because they will block traffic on a temporary but recurring basis because the street is just not designed for that kind of traffic. 26. The blockage of the street, while normally considered a public nuisance, may also be a private nuisance if that activity has the effect of interfering with the use and enjoyment of another’s private property. Private nuisance 27. Turning the 3.29 acres into a commercial RV park is just not a suitable activity on that property considering the character of the neighborhood. The serious, negative effects it will have are going to cripple property values because living there will be intolerable for the current residents and there will be a serious lack of buyers willing to move in near it. 28. Although modern recreational vehicles may not create the foul odors of horse dung at a livery stable, collectively the sewerage they will create that will have to be handled on-site will be just as bad. The other activities, noises and traffic congestion in what used to be a quiet, peaceful neighborhood will be so out of character as to drive out the current residents and discourage others from moving there. 29. Plaintiffs will present evidence that one potential home buyer already gave up his earnest money when he walked away from a purchase because he learned of the park’s eminent construction. There will be many more. 30. The Texas Legislature has declared the improper handling of wastewater, sewerage, and the like from an on-site wastewater treatment facility, to be a public health nuisance, i.e., a nuisance as a matter of law. See TEX. HEALTH & SAFETY CODE §341.011 and the definition of on-site wastewater treatment facility in Tex. Health & Safety Code §366.002. Any mischance or malfunction in the operation of the wastewater treatment plant proposed to be used by Defendants will result in a nuisance because of its proximity to Plaintiffs and other neighboring properties. If it creates noxious odors as expected it will be a nuisance. If it attracts flies, mosquitos or other parasites, it will be a nuisance. If it malfunctions and causes effluent to be discharged on the ground, it will be a nuisance. If someone puts hazardous chemicals down the drain it will likely contaminate the soil both on and off the RV park property. If it floods, it will likely cause a discharge of untreated wastewater. It appears that at least some of the equipment and drain field are located in the 100-year flood plain. Page 11 of 19 31. The Texas Supreme Court has concluded "A 'nuisance' is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.” See Crosstex N. Texas Pipeline, LP, 505 S.W.3d at 593, citing Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003); see also Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 153 (Tex. 2012); and Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). 32. The Crosstex North Texas Pipeline case is most instructive in the present situation. Crosstex purchased a 20-acre site across the road from the Gardiner ranch and ultimately purchased an easement across one corner of the ranch on which to run a natural gas pipeline. It then constructed a large compressor station on the 20 acres that consisted of four large diesel engines, at least one of which was kept running at all times to increase the amount of natural gas that could be pushed through the pipeline. See Crosstex N. Texas Pipeline, LP, 505 S.W.3d at 588-590. 33. The noise created by the compressor engines was so great many of the neighbors complained. Despite efforts by Crosstex to mitigate the noise, it continued to affect the Gardiners so much they sued and won a $2 million jury verdict. The Court of Appeals reversed the judgment and remanded the case for a new trial, holding the evidence was legally sufficient but factually insufficient to support the jury’s finding Crosstex had negligently created a nuisance. See Id. The Supreme Court affirmed the Court of Appeals decision and remanded the case to the trial court for a new trial using the nuisance principles it formulated in its opinion. See Id. at 618. 34. The Crosstex case is instructive because it involves a similar situation to the RV park and a similar factual analysis. Although there are major differences in the settings, the nuisance principles the court should apply are the same. Crosstex involved a rural setting, a lawful and useful business, and the serious negative effects of that business on neighboring properties. Crosstex was in a position to attempt efforts to mitigate the damages, although apparently unsuccessfully as far as the Gardiners were concerned. 35. The RV park is in a suburban neighborhood setting where there are no other commercial activities. Although the Walden on Lake Conroe subdivision ends at the end of the public portion of Brookhaven Drive, the character and use of Page 12 of 19 the properties on three sides of the proposed RV Park are all the same kinds of single-family residences. To the extent there is any vacant land that land is used for private recreation because it is near Lake Conroe or is held merely for investment purposes. 36. Unfortunately for all involved, there is little to no way the RV park can be operated in a manner that will not be a serious nuisance to its neighbors. The on-site sewer treatment facility cannot be operated in a way that it will not create obnoxious odors. There is no access to the park site except having customers/tenants drive through the neighborhood with their large RV’s with its attendant traffic problems and safety hazards. 37. The Supreme Court listed a number of factors a jury should consider in determining whether a nuisance exists when the activity causing the nuisance is otherwise lawful: 1. the character and nature of the neighborhood, each party's land usage, and social expectations; 2. the location of each party's land and the nature of that locality; 3. the extent to which others in the vicinity are engaging in similar conduct in the use of their land; 4. the social utility of each property's usage; 5. the tendency or likelihood that the defendant's conduct will cause interference with the plaintiff's use and enjoyment of their land; 6. the magnitude, extent, degree, frequency, or duration of the interference and resulting harm; 7. the relative capacity of each party to bear the burden of ceasing or mitigating the usage of their land; 8. the timing of each party's conduct or usage that creates the conflict; 9. the defendant's motive in causing the interference; and 10.the interests of the community and the public at large. See Crosstex N. Texas Pipeline, LP, 505 S.W.3d at 600. 38. Following is an analysis of the 10 factors in this case: 1. the character and nature of the neighborhood, each party's land usage, and social expectations; Page 13 of 19 The Brookhaven neighborhood has existed since the early 1970’s. For all of that time it has been used for upper middle-class to upper-class single-family residences. Even the properties lying outside the subdivision, to the extent they have been developed, have been for similar residences. Any raw land has been used for private recreational purposes, held merely for investment or to have space between neighbors. There are no commercial activities, including RV parks, permitted in the Walden portion of the neighborhood. Plaintiffs have not been able to identify any openly commercial activities occurring on the land that lies outside of the Walden