Opinion filed May 16, 2013




                                     In The


        Eleventh Court of Appeals
                                   _________
                              No. 11-11-00188-CV
                                   _________

                             BOB LADD, Appellant

                                         V.

        SILVER STAR I POWER PARTNERS, LLC, Appellee


                    On Appeal from the 266th District Court
                               Erath County, Texas
                         Trial Court Cause No. CV-30351



                     MEMORANDUM OPINION
      This is an appeal from a summary judgment order entered in favor of Silver
Star I Power Partners, LLC. We affirm.
       Bob Ladd sued Silver Star and alleged that Silver Star’s placement of
twenty-four wind turbines near Ladd’s property caused a nuisance. 1 Specifically,
Ladd asserted:
             The Defendants’ design, finance, development, construction
       and operation of the industrial wind turbine project and its many
       turbines constitute a nuisance because:

               a. they will create constant noise when the wind is
                  blowing, and the noise increases in volume as the
                  wind velocity increases, including low frequency
                  noise;

               b. the wind turbines create an eyesore that destroys the
                  natural beauty of the Erath County countryside from
                  Ladd’s home and throughout his ranch and creates a
                  “flicker” or “strobe” and shadow effect during the
                  times the sun is near the horizon which invades
                  Plaintiff’s land;

               c. the wind turbines have blinking red lights that
                  dominate the night sky and destroy the natural beauty
                  of the star-filled sky, one aspect of the attractiveness
                  of the area; and

               d. the wind turbines negatively impact the habitat of the
                  native wildlife in the area and potentially Ladd’s
                  whitetail breeding operation which is one reason
                  Plaintiff chose to purchase his ranch in Erath County,
                  Texas.

Ladd further claimed that the wind turbine project resulted in a condition that
physically invaded and substantially interfered with his private use and enjoyment
of his ranch and negatively impacted the value of his property by more than
$6,500,000. In the background section of his petition, Ladd asserted that “[t]he


       1
         Ladd originally brought suit against several other defendants and alleged multiple causes of
action; however, those defendants and claims are not at issue in this appeal.
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prospect for further development of this ranch has also been destroyed as Ladd
cannot develop his property near the property lines due to the noise, light issues
and the eyesore created by the wind turbines. Essentially, the industrial wind
turbine project has effected a taking of Ladd’s property without compensation.”
      Silver Star moved for summary judgment on both traditional and no-
evidence grounds. It alleged that Ladd could not recover on his visual nuisance
claim as a matter of law and that Ladd had no evidence that the wind turbines
precluded the further development of his property. Silver Star did not attack
Ladd’s claim that the wind turbines created a nuisance as a result of the noise, the
shadow and flicker effect caused by the blades at sunset, and the effect of the
blinking red lights located on the turbines. The trial court granted Silver Star’s
motion for summary judgment. The parties filed an agreed motion to sever the
nuisance claim related to aesthetics from those based on the noise, the shadow and
flicker effect, and the blinking red lights. The parties also entered into a Rule 11
agreement in which they agreed Ladd would dismiss all of his claims, with
prejudice, if this case involving the visual nuisance claim is ultimately affirmed on
appeal. See TEX. R. CIV. P. 11. The trial court granted the agreed motion, severed
the visual nuisance claim from the remaining claims, abated those remaining
nuisance claims from the claims at issue here, and entered a final judgment.
      Ladd presents two issues for our review. In his first issue, Ladd argues that
the trial court erred when it determined that his nuisance claim could be split into
multiple evidentiary elements instead of considered as a whole. In his second
issue, he asserts that the trial court erred when it granted Silver Star’s motion for
summary judgment.
      We review a trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a
summary judgment, the appellate court takes as true evidence favorable to the
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nonmovant.     Id.   A trial court must grant a traditional motion for summary
judgment if the moving party establishes that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The
nonmovant is not required to file a response to defeat the movant’s summary
judgment motion; however, once the movant establishes a right to judgment as a
matter of law, the nonmovant must come forward with evidence or law that
precludes summary judgment. Clear Creek, 589 S.W.2d at 678–79. A trial court
must grant a no-evidence motion for summary judgment if the nonmovant fails to
produce more than a scintilla of evidence raising a genuine issue of material fact
on the challenged element of the cause of action. TEX. R. CIV. P. 166a(i); Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
      Ladd asserts in his first issue that the trial court erred when it granted
summary judgment in Silver Star’s favor as to the visual nuisance claim because
Silver Star did not attack an element of Ladd’s nuisance claim, but instead only
attacked one factor—the unsightliness of the turbines. Ladd contends that the wind
turbines cause a nuisance not only because the turbines are an eyesore but also
because the turbines generate loud noise, produce a flicker or strobe effect, and
have blinking red lights. In his brief, Ladd argues that the nuisance claim that he
has brought is a single nuisance claim with many parts that make it so. He refers
to his claim as a bundle of different things and states that each of those things go to
make up the nuisance. He faults Silver Star for wanting to take one of the sticks—
that the turbines are an eyesore—out of the bundle. However, if the bundle is to
contain those things that go to make up a nuisance, then those things that cannot
support a nuisance claim, as a matter of law, should be removed from the bundle.
Ladd also argues that the aesthetic-based evidence is relevant to his nuisance claim
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as a whole and that he should not be precluded from presenting evidence of the
visual impact of the turbines at trial. But Silver Star directs us to Rankin v. FPL
Energy, LLC, 266 S.W.3d 506 (Tex. App.—Eastland 2008, pet. denied), for the
proposition that it was not error for the trial court to render judgment in favor of
Silver Star because the visual impact, or the unsightliness of the turbines, cannot
support a claim for nuisance as a matter of law. We agree with Silver Star that
Rankin controls our decision in this case.
        In Rankin, we did not say that evidence of aesthetics was never admissible.
What we did hold in Rankin was that Texas law does not allow a plaintiff to
recover on a visual nuisance claim based on aesthetic impact. 266 S.W.3d at 509–
13. In reaching this decision, we relied on opinions from several other Texas
courts. See Jones v. Highland Mem’l Park, 242 S.W.2d 250 (Tex. Civ. App.—
San Antonio 1951, no writ) (holding presence of cemetery alone does not create a
nuisance); Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex. Civ.
App.—Dallas 1925, no writ) (“Matters that annoy by being disagreeable,
unsightly, and undesirable are not nuisances simply because they may to some
extent affect the value of property.”); Shamburger v. Scheurrer, 198 S.W. 1069,
1071–72 (Tex. Civ. App.—Fort Worth 1917, no writ) (holding the law will not
declare a thing a nuisance because it is unsightly or unpleasant to the eye).
Therefore, as a matter of law, Ladd cannot recover damages on his nuisance claim
because the wind turbines are unsightly, create an eyesore, or destroy the scenic
view.
        Ladd argues that this case is distinguishable from Rankin because he did not
assert a claim for nuisance based solely on aesthetic impact, but also based on
noise, flicker effect, and blinking red lights. However, the plaintiffs in Rankin also
asserted that the wind turbines caused a nuisance because of noise, shadow flicker
effect, and blinking lights. Rankin, 266 S.W.3d at 510. The trial court dismissed
                                             5
the plaintiffs’ nuisance claims asserted in whole or in part on the basis of aesthetic
impact, and the plaintiffs’ claims based on noise, blinking lights, and flicker effect
proceeded to trial. Id. at 508, 510. The Rankin plaintiffs argued on appeal that the
trial court erred when it instructed the jury not to consider the visual impact that
the wind farm created in addition to the other conditions (noise, lights, flicker
effect) in the jury’s determination of whether the wind farm was a nuisance. Id. at
510. We upheld the trial court’s instructions to the jury that it could not consider
the aesthetic impact of the wind farm and that aesthetic impact could not form the
basis for an award of damages. Id. at 508 n.3, 513.
         In addition to our holding in Rankin, Rule 166a governs summary judgment
procedure and expressly provides: “A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory judgment is sought may, at any time,
move with or without supporting affidavits for a summary judgment in his favor as
to all or any part thereof.” TEX. R. CIV. P. 166a(b) (emphasis added). Because the
rule specifically provides that a defendant can move for summary judgment on any
part of a plaintiff’s claim and because as a matter of law aesthetic impact will not
support a claim for nuisance, the trial court did not err when it considered and
granted Silver Star’s motion for summary judgment as to Ladd’s visual nuisance
claim.
         Ladd also argues that aesthetic-based evidence is relevant to his nuisance
claim as a whole and that he should not be precluded from presenting evidence at
trial of the visual impact of the turbines. He directs us to a footnote in Rankin in
which we noted, “We do not hold that aesthetical-based evidence is inadmissible.
The trial court has wide discretion concerning the admission of evidence; and, in
individual cases, aesthetical information may be relevant for a variety of
purposes.” Rankin, 266 S.W.3d at 512 n.13. Here, however, the issue of whether
aesthetic-based evidence is admissible in Ladd’s claim that the turbines cause a
                                          6
nuisance because they generate noise, produce a flicker effect, or have blinking red
lights is not ripe for our review. As we noted in Rankin, the trial court has broad
discretion to determine whether such aesthetically based evidence is admissible if
and when those issues are presented to the factfinder, but aesthetically based
evidence will not support a claim of nuisance. See id. We overrule Ladd’s first
issue.
         In his second issue, Ladd asserts that the trial court erred when it granted
Silver Star’s no-evidence motion for summary judgment as to Ladd’s claim that
the wind turbines limited further development of his property. He claims that the
trial court erred because he produced more than a scintilla of evidence that the
wind turbine operation negatively impacted the highest and best uses of his
property and that it caused a diminution in his property value. Regardless of
whether this issue of further development has been been referred to as a separate
nuisance claim, this issue is one that is a damage issue, as acknowledged by Ladd
and as set out in his brief. We are limited in this appeal to the visual impact or
aesthetics claim; the other nuisance claims have been severed from this one.
Because we have held that there is no cause of action for the aesthetics claim
involved in this appeal, there can be no damages based upon it, and the argument is
moot. Ladd’s second issue on appeal is overruled.
         We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
May 16, 2013                                          CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.



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