                                  NO. 12-11-00395-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

MILLARD VAUGHN,                                  §          APPEAL FROM THE 273RD
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

PAUL DRENNON AND WIFE,
MARY DRENNON,
APPELLEES                                       §           SABINE COUNTY, TEXAS



                                  MEMORANDUM OPINION
       Millard Vaughn appeals from the trial court‟s judgment, rendered after a jury trial, in
favor of his neighbors, Paul and Mary Drennon. In two issues, Vaughn contends there is no
evidence to support the jury findings of nuisance and damages. We affirm.


                                         BACKGROUND
       Millard and Barbara Vaughn have been neighbors with Paul and Mary Drennon since the
mid-1990s. The two couples, who share a common property boundary, have been involved in
litigation since December 2004. See Vaughn v. Drennon, 372 S.W.3d 726 (Tex. App.–Tyler
2012, no pet.). In October 2010, the Drennons filed this suit against the Vaughns alleging
nuisance and intentional infliction of emotional distress based on actions taken after December 1,
2008. The trial court directed a verdict in Barbara Vaughn‟s favor, and that ruling is not attacked
on appeal. The intentional infliction of emotional distress claim was not submitted to the jury.
The jury found that Vaughn‟s actions after December 1, 2008, constitute a nuisance. It awarded
$2,000.00 to Paul Drennon and $10,000.00 to Mary Drennon. Millard Vaughn appealed.
                                      STANDARD OF REVIEW
       When a party is attacking the legal sufficiency of the evidence supporting a finding on an
issue for which he did not have the burden of proof, he must show that no evidence supports the
finding. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). We may
sustain a no evidence challenge only when (1) the record discloses a complete absence of
evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is
no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). Evidence is
legally sufficient if it would enable reasonable and fair minded people to reach the verdict under
review. Exxon Corp., 348 S.W.3d at 215. Less than a scintilla of evidence exists when the
evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the
legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983). We credit favorable evidence if reasonable jurors could, and disregard contrary evidence
unless reasonable jurors could not. Exxon Corp., 348 S.W.3d at 215.


                                            NUISANCE
       In his first issue, Vaughn contends there is no evidence that his acts substantially
interfered with the Drennons‟ use and enjoyment of their property. Specifically, he argues there
is no evidence that the lights Vaughn placed near the property line are unusually intense or
extreme or that they substantially interfered with the Drennons‟ property rights. He also asserts
there is no evidence that Vaughn‟s cameras substantially interfered with the Drennons‟ use of
their property or that Mary‟s fear of being photographed had any effect on her daily life.
Further, he contends there is no evidence that his loud music substantially interfered with the
Drennons‟ property rights.
Applicable Law
       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. Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011). Actionable nuisance
may fall into one of three categories: negligent invasion of another‟s interests; intentional
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invasion of another‟s interests; or other conduct, culpable because abnormal and out of place in
its surroundings, that invades another‟s interests. City of Tyler v. Likes, 962 S.W.2d 489, 503
(Tex. 1997). Nuisance is a field of tort liability, a kind of damage done, rather than any
particular type of conduct. Id. at 504. A nuisance can occur in one of three ways: (1) by
physical harm to property; (2) by physical harm to a person on his or her property, such as an
assault on his or her senses or by other personal injury; or (3) by emotional harm to a person
from the deprivation of the enjoyment of his or her property, such as fear, apprehension, offense,
or loss of peace of mind. Tex. Union Pac. Res. Co. v. Cooper, 109 S.W.3d 557, 560 (Tex.
App.–Tyler 2003, pet. denied) (op. on reh‟g). Noise and glaring light can be a nuisance. See
GTE Mobilnet of S. Tex. Ltd. P’shp. v. Pascouet, 61 S.W.3d 599, 615 (Tex. App.–Houston
[14th Dist.] 2001, pet. denied).
Discussion
       The Drennons complain of bright lights shining on their property, loud music and
hammering, which goes on into the night hours, being constantly photographed, and Vaughn‟s
habit of keeping a firearm within reach. Question 1 asked if “Vaughn‟s actions from and after
December 1, 2008, constitute a „nuisance,‟ as defined below, which caused personal discomfort,
annoyance and inconvenience to Mary Drennon?” Question 3 asked the identical question
regarding Paul Drennon. Both questions were accompanied by the following instruction:


               You are instructed that by the term “nuisance” as used in this charge is meant
               any condition, brought about by one party in the use of his property, so unusual
               and excessive that it necessarily causes injury or damage or harm or
               inconvenience to another party, substantially, materially and unreasonably
               interfering with the latter‟s comfort, taking into consideration the nature and use
               of the property of both parties and the character of community in which they are
               situated, and which condition would be substantially, [sic] offensive,
               discomforting and annoying to persons of ordinary sensibilities, tastes and habits
               living in the locality where the premises are situated.


       In answers to interrogatories, Paul explained that Vaughn‟s actions have caused him great
and continual emotional distress. Mary explained that she suffers severe emotional distress to
the point that she is very hesitant to ever go outside her house. She frequently cannot get a good
night‟s sleep because of the constant noise generated by Vaughn and because of the lights that
continuously shine on and into the Drennons‟ house.
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       Mary testified that Vaughn tries to make her and Paul miserable. Because Vaughn
always carries a gun, and once threatened to shoot them, she is afraid to go out in her yard. She
explained how Vaughn aims a camera at her and provides a running narration, describing her
actions. She said the lights shine on her property 98% of the time. Mary testified that she and
Paul love being outside and Vaughn‟s actions changed their lives because they cannot enjoy the
outdoors. She stated that she is constantly afraid of being photographed and watched, describing
it as a continuing dread and fear. Further, she explained, she never feels free when she steps
outside. She does not feel like she can enjoy the property that she worked hard for or that she
can live in peace.
       Neighbor Joan McGee testified that it is stressful living in that neighborhood, knowing
that every move you make is being watched. She explained that every time the Drennons go
outside, Vaughn drives up to their property to see what they are doing. She said the camera is
right behind their house and everything they do in their backyard is seen by the camera. McGee
stated that the cameras affect the Drennons‟ enjoyment of their property.
       Bobby Ener, who lives down the road from the Drennons, explained that Vaughn‟s light
is very bright and shines through the glass on his front door, 800 feet away. James Crocker, also
a neighbor, testified that the light is too bright to be so close to the Drennons‟ house. He also
stated that he has heard Vaughn‟s music a few times. He testified that Vaughn carries rifles in
his truck, pistols in his pockets, and one in his boot. One time, Vaughn pointed a gun at Crocker,
cocked it, and threatened to kill him.
       Paul Drennon explained that Vaughn‟s actions, his use of cameras, bright lights, and loud
music have affected their enjoyment of their property. He stated that Vaughn‟s actions disturb
them and he wants to be able to live without being bothered or harassed by Vaughn. He
explained that for the last several months, he and Mary go in the house when Vaughn is around.
       The Drennons chose this rural area near a lake to retire after living in a Dallas suburb.
They love being outdoors, working in their yard, and maintaining a vegetable garden. Testimony
shows that, due to Vaughn‟s actions, they no longer enjoy being outside or working in their yard.
Vaughn‟s actions disturb them and they go inside their house when Vaughn is near. Mary stated
that she cannot live in peace. This is some evidence that Vaughn interfered with the Drennons‟
enjoyment of their land by causing unreasonable discomfort and annoyance to them.             See
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Barnes, 353 S.W.3d at 763. The evidence would enable reasonable and fair minded people to
reach the verdict under review and is therefore legally sufficient. See Exxon Corp., 348 S.W.3d
at 215. We overrule Vaughn‟s first issue.


                                                     DAMAGES
         In his second issue, Vaughn asserts there is no evidence that the Drennons sustained any
damages. He contends there is no evidence that Vaughn‟s lights, cameras, and music caused
substantial interference with the Drennons‟ use and enjoyment of their property and, therefore,
there are no damages. Further, he argues, they produced no evidence of any damages resulting
from emotional distress, discomfort, or annoyance.
         A plaintiff may recover damages for the discomfort in the use of the plaintiff‟s property,
as well as annoyance, caused by a nuisance created by the defendant. See Daniel v. Fort Worth
& Rio Grande Ry. Co., 72 S.W. 578, 579 (Tex. 1903). “[T]here may be no arithmetical rule for
the estimate of damages. There is, however, an injury, the extent of which the jury may
measure.” Baltimore & Potomac R.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 335 (1883).
         As explained above, the record shows that Vaughn‟s actions interfered with the
Drennons‟ enjoyment of their property. They asked the jury to award them $1,000.00 per month
for thirty-three months. The jury awarded damages to Mary in the amount of $10,000.00 and
awarded damages to Paul in the amount of $2,000.00. There is more than a scintilla of evidence
supporting the jury‟s damage awards. See Daniel, 72 S.W. at 579; Pascouet, 61 S.W.3d at 616.
We overrule Vaughn‟s second issue.


                                                    DISPOSITION
         The evidence is legally sufficient to support the jury‟s findings. Accordingly, we affirm
the trial court‟s judgment.
                                                                SAM GRIFFITH
                                                                  Justice

Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                    (PUBLISH)
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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                             JUNE 25, 2013


                                         NO. 12-11-00395-CV


                               MILLARD VAUGHN,
                                   Appellant
                                      V.
                     PAUL DRENNON AND WIFE, MARY DRENNON,
                                   Appellees



                           Appeal from the 273rd Judicial District Court
                            of Sabine County, Texas. (Tr.Ct.No. 12,570)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, MILLARD VAUGHN, for which execution may issue, and that this
decision be certified to the court below for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



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