                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00321-CV

HOT ROD HILL MOTOR PARK AND
ROGER DEEWAYNE BROWN,
                                                           Appellants
v.

DONMICHAEL LUCAS TRIOLO,
                                                           Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 04-001812-CV-361


                                     OPINION


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

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

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

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

enjoining Brown from conducting any races of motorized vehicles for either

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

See Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565 (Tex. App.—Waco 2008, no pet.).
       Brown subsequently filed a motion to vacate, amend, or alter the permanent

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

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

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

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

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

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

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

We reverse and render.

                                    PERMANENT INJUNCTION

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

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

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

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

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

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

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

(Tex. App.—Waco 2001, no pet.).

                                           Analysis

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

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

he can no longer raise a nuisance claim and is no longer entitled to injunctive relief.


Hot Rod Hill Motor Park v. Triolo                                                     Page 2
Triolo responds that an enforceable legal right to the affected property is not a

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

affected.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TORTS § 328E (1965).




Hot Rod Hill Motor Park v. Triolo                                                    Page 3
       “Possession” is not limited to occupancy under a claim of some other
       interest in the land, but occupancy is a sufficient interest in itself to permit
       recovery for invasions of the interest in the use and enjoyment of the land.
       Thus members of the family of the possessor of a dwelling who occupy it
       along with him may properly be regarded as sharing occupancy with
       intent to control the land and hence as possessors, as defined in § 328E.
       When there is interference with their use and enjoyment of the dwelling
       they can therefore maintain an action for private nuisance.

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

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

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

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

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

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

possessor of the property to have standing.”).

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

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

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

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

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

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

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

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

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

damage to the property. See New, 1999 Tex. App. LEXIS 6575, at *7. New had occupied



Hot Rod Hill Motor Park v. Triolo                                                         Page 4
the home for several years, lived in the home with his girlfriend, her two children, and

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

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

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

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

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

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

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

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

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

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

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

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

permanent injunction is vacated.




                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and rendered
Opinion delivered and filed July 8, 2009
[CV06]




Hot Rod Hill Motor Park v. Triolo                                                       Page 5
