      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                      NO. 03-09-00397-CV



                           Hanson Aggregates West, Inc., Appellant

                                                 v.

Edwin R. Ford, Regina Ford, Clarence Cain, Connie Cain, James L. Kersey, Mary Kersey,
                       Brett Papell and Lynn Papell, Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
         NO. C2007-0056A, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                                          OPINION


               We withdraw our opinion and judgment dated January 6, 2011, and substitute the

following in their place. We overrule appellees’ motion for rehearing.

               In dispute in this appeal are the substantive and procedural standards that govern

claims for permanent injunctive relief against a private nuisance. A group of homeowners filed suit

alleging that a nearby rock quarry had created a nuisance and sought both money damages and a

permanent injunction limiting quarry operations. A jury failed to find either that the quarry owner

had intentionally created a nuisance, that the owner had negligently created a nuisance, or that the

owner’s conduct was “abnormal and out of place in its surroundings such as to create a nuisance.”

Based on the jury’s verdict, the district court rendered judgment that the homeowners take nothing
on their money-damage claims. However, the district court also issued a permanent injunction based

on the court’s own determinations that the quarry operations “can and do create a nuisance” and

“in balance of the equities a permanent injunction should issue.” We are called upon to determine

whether the permanent injunction was an abuse of discretion in light of the jury’s verdict and

the evidence at trial. We conclude that it was, and will render judgment vacating the injunction.


                                         BACKGROUND

                  Appellant Hanson Aggregates West, Inc., owns and operates a rock quarry near

the City of Garden Ridge. Although this quarry has been in operation in some form for decades,

over time both the quarry and Garden Ridge-area residential neighborhoods have expanded

and grown closer toward one another. Appellees are four married couples who own homes in the

quarry’s general vicinity. Three of the couples—Edwin and Regina Ford, Clarence and Connie Cain,

and Brett and Lynn Papell—live in a subdivision called Trophy Oaks, which is adjacent to

Hanson’s land, in houses located between approximately 1,000 to 2,000 feet away from the quarry.

The fourth couple, James and Mary Kersey, live about a mile away from both Trophy Oaks

and the quarry.

                  Contending that explosive blasting operations at Hanson’s quarry were creating

vibrations, noise, smoke, and dust that were damaging their homes and diminishing their health

and quality of life, thereby constituting a nuisance, appellees sued Hanson seeking a permanent

injunction to limit the blasting, as well as actual damages and punitive damages. The case was tried

to a jury. Approximately two weeks of testimony was presented.




                                                 2
               Prior to submission, appellees requested a jury question that inquired whether

Hanson had, by a preponderance of the evidence, “created a ‘nuisance.’” “Nuisance,” in turn, was

defined as “a condition that substantially interferes with the use and enjoyment of land by causing

unreasonable discomfort and annoyance to persons of ordinary sensibilities.” This definition of

“nuisance” tracks language in Texas Supreme Court decisions. See Schneider Nat’l Carriers, Inc.

v. Bates, 147 S.W.3d 264, 269 (Tex. 2004) (citing Holubec v. Brandenberger, 111 S.W.3d 32,

37 (Tex. 2003)). Hanson objected to appellees’ proposed “nuisance” question. The district court

ultimately submitted three alternative broad-form questions that required the jury to find both (1) the

existence of a “nuisance” (which was defined the same as in appellees’ requested question) and

(2) one of three forms of culpability in regard to the “nuisance”:


       QUESTION NO. 1

               Did Hanson intentionally create a nuisance as to any of the following?

       ....

       QUESTION NO. 2

               Did Hanson negligently create a nuisance as to any of the following?

       ....

       QUESTION NO. 3

               Was Hanson’s conduct abnormal and out of place in its surroundings such as

       to create a nuisance as to any of the following?




                                                  3
These questions tracked the elements of what Texas courts have described as “actionable nuisance.”

See, e.g., City of Tyler v. Likes, 962 S.W.2d 489, 503-04 (Tex. 1997) (“Courts have broken

actionable nuisance into three classifications: negligent invasion of another’s interests; intentional

invasion of another’s interests; or other conduct, culpable because abnormal and out of place in

its surroundings, that invades another’s interests.” (citing Bible Baptist Church v. City of Cleburne,

848 S.W.2d 826, 829 (Tex. App.—Waco 1993, writ denied))). The jury was instructed to answer

each of Questions 1, 2, and 3 separately as to each of the eight appellees, with either a “Yes” to

signify an affirmative finding by a preponderance of the evidence, or otherwise a “No.”

               In all three questions, the jury answered “No” as to each appellee. Following the

jury’s verdict, appellees urged the district court that the verdict, while perhaps foreclosing a

judgment awarding them money damages, did not limit the court’s power “in equity” to issue a

permanent injunction to restrain any “nuisance” that the court found to exist. The district court

ultimately rendered a final judgment that appellees take nothing on their claims for monetary relief.

However, the court further adjudged “that the Quarry operations, specifically by blasting, can and

do create a nuisance” and “that in balance of the equities a permanent injunction should issue.” The

district court issued a permanent injunction limiting the strength and location of quarry blasting

operations. Hanson appeals.1




       1
           Appellees, as well as a co-defendant of Hanson below—Austin Powder Company,
the blasting contractor at the quarry—also perfected appeals but subsequently dismissed them.
Austin Powder is no longer a party to this proceeding.

                                                  4
                                               ANALYSIS

                In a single issue on appeal, Hanson argues that the district court abused its discretion

in issuing the permanent injunction. We review a trial court’s issuance of injunctive relief for an

abuse of discretion. Operation Rescue v. Planned Parenthood, 975 S.W.2d 546, 560 (Tex. 1998).

The general test for abuse of discretion is whether the court acted without reference to any

guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). A trial court

is also said to “clearly abuse its discretion” if it fails to interpret or apply the law correctly. See In re

Texas Dep’t of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006).

                Hanson urges that the district court misapplied the law by granting a permanent

injunction in the absence of either jury findings or conclusive evidence establishing an underlying

cause of action for nuisance.2 While acknowledging that a permanent injunction is an equitable

remedy whose issuance is ultimately left to the trial court’s discretion, Hanson emphasizes the

predicate requirement that “[n]o final relief, including a permanent injunction, can be granted in

a contested case without a determination of legal liability.” See Valenzuela v. Aquino, 853 S.W.2d

512, 514 n.2 (Tex. 1993). Consequently, as Hanson observes, a trial court lacks discretion to issue

a permanent injunction unless supported by at least one valid underlying cause of action that is

established either by conclusive evidence or fact findings. See id. at 513-14. This requirement

is illustrated by the Texas Supreme Court’s decision in Valenzuela. In that case, a doctor who

performed abortions sued individuals who had been picketing his house, seeking damages and


        2
         As appellees observe, Hanson does not complain that the district court abused its discretion
with regard to the scope of the injunction itself or its balancing of the equities, only that the court
had no discretion to issue a permanent injunction in the first place.

                                                     5
injunctive relief based on causes of action for negligent infliction of emotional distress and invasion

of privacy. At trial, the doctor had obtained jury findings on only his negligent-infliction theory, and

the trial court had rendered judgment awarding damages and a permanent injunction prohibiting

picketing within 400 feet of the doctor’s home. The Texas Supreme Court held that the judgment,

including the permanent injunction, could not be sustained based on a negligent-infliction

cause of action because no such tort was recognized in Texas. See id. at 513. Nor, the supreme court

reasoned, could the judgment be supported by the invasion-of-privacy theory where the doctor “did

not request that either of the[] elements [of invasion of privacy] be submitted to the jury, and the

evidence did not establish either element beyond dispute.” Id.

                Where facts material to the underlying cause of action’s existence are in dispute,

Hanson adds, a litigant is entitled to have a jury determine them, as the Texas Constitution

guarantees the right to jury trial of factual disputes in both legal and equitable actions. See

Tex. Const. art. V, § 10; State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 292-93

(Tex. 1975); Casa El Sol Acapulco, S.A. v. Fontenot, 919 S.W.2d 709, 715-16 (Tex. App.—Houston

[14th Dist.] 1996, writ dism’d).3 The jury’s “findings on issues of fact are binding.” Shields v. State,




       3
           In Fontenot, the Fourteenth Court of Appeals summarized the historical basis for this right
to jury trial in equitable actions:

        There is no common-law right to a jury trial in equity. However, two provisions
        of the constitution insure the right to a jury trial in Texas. The first is contained in
        the Texas Bill of Rights. See Tex. Const. art. I, § 15. This provision guarantees “the
        right to a jury in all actions where that right existed at the time the Constitution was
        adopted.” Because the English chancery were judges of both fact and law at the time
        our constitution was enacted, this provision does not alter the common law tradition
        eschewing juries in equity actions.

                                                   6
27 S.W.3d 267, 272 (Tex. App.—Austin 2000, no pet.). Assuming the jury finds those facts, “[t]he

determination whether to grant an injunction based on ultimate issues of fact found by the jury is for

the trial court, exercising chancery powers.” Id.

                Hanson contends that the evidence did not conclusively establish an underlying

cause of action for nuisance and that the district court thus properly submitted the ultimate

issues of disputed fact to the jury. Because the jury failed to find the facts that would establish a

nuisance cause of action, Hanson adds, the district court lacked any discretion to issue the

permanent injunction. See Valenzuela, 853 S.W.2d at 513-14. Hanson further observes that the

district court did not purport to disregard any of the jury’s findings on the basis that they were

not supported by legally sufficient evidence (i.e., hold that the evidence conclusively established

an actionable nuisance that the jury failed to find), see Tex. R. Civ. P. 301,4 but instead




        Because of Texans’ familiarity with Spanish law and procedure, they adopted a
        second constitutional provision insuring the right to a jury trial in all causes. This
        provision is found in the Judiciary Article. See Tex. Const. art. V, § 10. Thus, in
        Texas, the “traditional distinctions between actions at law and suits in equity have
        never carried the procedural significance accorded to them in other states of the
        Union.” The law in Texas is that the right to a jury trial extends to disputed issues
        of fact in equitable as well as legal proceedings.

Casa El Sol Acapulco, S.A. v. Fontenot, 919 S.W.2d 709, 715-16 (Tex. App.—Houston [14th Dist.]
1996, writ dism’d) (citations and footnotes omitted).
       4
           See also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W.
Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63
(1960)) (holding that evidence is legally insufficient if evidence establishes conclusively the opposite
of the vital fact).


                                                    7
indicated in the final judgment that it was relying on its own “finding” of a nuisance.5 That

“finding” was in itself error, Hanson urges, because the fact-finding power in this case belonged

exclusively to the jury.

                Emphasizing “the extraordinary dissimilarity between the facts of Valenzuela

and those of the present case,” appellees suggest that the respective roles of jury and judge are

different in suits seeking to permanently enjoin an alleged nuisance. Appellees cite no authority for

that proposition, however, and the Texas Supreme Court has indicated that the same principles

control. In addressing the respective roles of judge and jury in a nuisance case, the supreme court

has explained that “a litigant has the right to a trial by jury in an equitable action,” the jury makes

findings on “ultimate issues of fact” that are “binding,” and the trial court—“exercising chancery

powers”—then determines “whether to grant an injunction based upon the ultimate issues of fact

found by the jury.” State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979).

                More recently, in an extensive analysis of the distinctions between temporary and

permanent nuisances and how the difference should be determined, the supreme court rejected the

potential criterium of remediability by injunctive relief with the following reasoning delineating the

respective roles of judge and jury in regard to equitable-relief claims for nuisance:




        5
          Hanson also emphasizes that in a pre-judgment letter to the parties, the district court
indicated that “it does not conclude that a nuisance in this case was established as a matter of law,”
but instead “finds, in equity, that the quarrying operations, specifically by blasting, can and do create
a nuisance of a recurring nature irrespective of the absence of an actionable remedy at law.”
Although such pre-judgment letters do not control the standard or scope of our appellate review,
see Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990);
Mondragon v. Austin, 954 S.W.2d 191, 193 (Tex. App.—Austin 1997, pet. denied), we nonetheless
acknowledge that the district court’s statements are consistent with its subsequent judgment.

                                                   8
       Categorizing a nuisance as temporary or permanent is . . . a question for the jury. But
       abatement is a discretionary decision for the judge after the case has been tried and
       the jury discharged. One is only partly dependent on the other: while judges cannot
       permanently abate a nuisance until jurors decide there is one, a trial judge may
       decide to abate a nuisance whether it is temporary or permanent, and may choose not
       to abate either even if that is the only remedy requested.


Schneider, 147 S.W.3d at 286-87 (emphasis added and footnotes omitted). Significantly, in support

of its statement that “judges cannot permanently abate a nuisance until jurors decide there is one,”

the court cited Valenzuela for the proposition that a “permanent injunction [was] improper as one

cause of action was invalid in Texas and [the] other was not submitted to jury.” See id. at 286 n.115.

               Finally, we also observe that the Dallas Court of Appeals, in a suit alleging restrictive-

covenant violations and nuisance, dissolved a permanent injunction restraining the location

and speed at which their defendants drove vehicles on their own property because, among other

reasons, no jury question had been submitted regarding the defendants’ operation of vehicles. Webb

v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 391-92 (Tex. App.—Dallas 2009, no pet.).

               Appellees refer us to no authorities indicating that the respective roles of jury

and judge in regard to permanent injunctions are fundamentally different in nuisance cases than

they are in other cases. Especially in light of the supreme court’s reasoning in Texas Pet Foods and

Schneider, we cannot conclude that they are.6


       6
          Texas Pet Foods did involve a subtle distinction in the application of these principles,
however. Although the jury failed to find a violation of a Clean Air Act prohibition against
“causing or contributing or threatening to cause or contribute to the emission of odors or other
air contaminants into the atmosphere . . . in such concentration and of such duration as are or may
tend to be injurious to or adversely affect human health or welfare, or as to interfere with the normal
use and enjoyment of animal life, vegetation or property,” the trial court issued a permanent
injunction that, in part, barred the same conduct. State v. Texas Pet Foods, Inc., 591 S.W.2d 800,

                                                   9
               Appellees further attempt to distinguish this case from the general rule of Valenzuela

based on a contention that the district court never submitted to the jury the proper factual predicate

for a permanent injunction. Appellees acknowledge that “[a] finding that a nuisance is intentionally

or negligently created, or abnormal and out of place for its surroundings,” as submitted in the

jury charge, “is generally necessary to recover damages in a private nuisance suit.” See City of

Texarkana v. Taylor, 490 S.W.2d 191, 194 (Tex. Civ. App.—Texarkana 1972, writ ref’d n.r.e.). But,

appellees insist, “[s]uch a finding . . . is not necessary to support injunctive relief.” Instead,

appellees reason, one can obtain a permanent injunction based solely on a finding of a

“nuisance”—i.e., “a condition that substantially interferes with the use and enjoyment of land by

causing unreasonable discomfort and annoyance to persons of ordinary sensibilities”—regardless

whether the nuisance is an “actionable nuisance” for which damages can be awarded. Consequently,

while the district court submitted the broader issue of “actionable nuisance” to the jury, it did

not, appellees urge, submit the question of “nuisance” alone that controls their right to a

permanent injunction.

               Based on that premise, appellees maintain that the jury’s failure to find an “actionable

nuisance” was immaterial to their claim for injunctive relief. Appellees also emphasize that they

requested a jury question inquiring whether a “nuisance” alone existed and that the district court,

at Hanson’s urging, refused it. The effect of the district court’s refusal to submit their requested



804-05 (Tex. 1979). This part of the injunction was not an abuse of discretion, the Texas Supreme
Court reasoned, because it had been predicated on jury findings of hundreds of other specific
violations. See id. at 802, 804-05. Consequently, this holding is consistent with the general rule
from Valenzuela that a permanent injunction must be predicated on jury findings or conclusive
evidence establishing at least one valid cause of action.

                                                 10
question on “nuisance,” appellees urge, was to “reserve this question for itself in its chancery

powers,” and they insist that nothing in the above authorities proscribes such a procedure under

these unique circumstances. In the alternative, if it was improper for the district court to make its

“nuisance” finding in lieu of the jury, appellees argue that Hanson waived that complaint through

“invited error” by persuading the district court not to submit their “nuisance” question to the jury.

                We need go no further than to reject appellees’ premise that Texas law recognizes

a right to permanent injunctive relief against “nuisance” apart from the theories of “actionable

nuisance” that were submitted to the jury. Some confusion regarding this area of the law is

understandable, as the case law addressing “nuisances” has historically tended toward a conceptual

incoherence that prompted Dean Prosser, in his seminal article on the subject, to term it “a sort of

legal garbage can.” See William L. Prosser, “Nuisance Without Fault,” 20 Tex. L. Rev. 399, 410

(1942); see also Taylor, 490 S.W.2d at 193 (noting “the obscure and confused state of the law” and

observing that “it is very difficult, perhaps impossible, to reconcile much that the courts have written

on the law of private nuisance”). But as Prosser explained, and as Texas courts have since come to

recognize, the availability of a remedy for “nuisance” is grounded in tort principles. “Nuisance,” in

the sense that appellees are using the term (a condition that substantially interferes with the use and

enjoyment of land by causing unreasonable discomfort and annoyance to persons of ordinary

sensibilities), refers to a type of damage or invasion of another’s interests that can potentially be

actionable in tort. See Likes, 962 S.W.2d at 504 (quoting Prosser, 20 Tex. L. Rev. at 416); Taylor,

490 S.W.2d at 193. However, the type of invasion that characterizes “nuisance” is not, in itself,

a legal wrong that gives rise to a right to relief. Similar to many other types of invasions or



                                                  11
infringements, the invasion characterizing “nuisance” becomes tortious and wrongful only when

caused by intentional or negligent conduct, or conduct that is abnormal and out of place in its

surroundings (essentially a form of strict-liability nuisance). See Likes, 962 S.W.2d at 504 (“As in

the case of any other kind of damage, it may be inflicted by conduct which is intended to cause harm,

by that which is merely negligent, or by that which involves an unusual hazard or risk, in line with

the principle of Rylands v. Fletcher [7].” (quoting Prosser, 20 Tex. L. Rev. at 416)); accord Hicks

v. Humble Oil & Ref. Co., 970 S.W.2d 90, 96 (Tex. App.—Houston [14th Dist.] 1998, pet. denied);

Bily v. Omni Equities, Inc., 731 S.W.2d 606, 611-12 (Tex. App.—Houston [14th Dist.] 1987,

writ ref’d n.r.e.) (citing Restatement (Second) of Torts § 822 (1977)); Taylor, 490 S.W.2d at 193-

94 (citing Taylor v. City of Cincinnati, 55 N.E.2d 724 (Ohio 1944); Rose v. Standard Oil Co. of

New York, Inc., 185 A. 251 (R.I. 1936)). This is the import of the term “actionable nuisance” in

Texas law—one of the three categories of nuisances that gives rise to a cause of action in tort. See

Likes, 962 S.W.2d at 504; see also Black’s Law Dictionary 1171 (9th ed. 2009) (defining “actionable

nuisance” as when condition or act that could be termed a “nuisance” falls within class of torts).

And, without a valid cause of action for nuisance (i.e., actionable nuisance), appellees were entitled

neither to damages nor to a permanent injunction. See Valenzuela, 853 S.W.2d at 513-14.

                In essence, appellees advocate for a theory of absolute-liability nuisance. We find

no support for such a theory in Texas law as a basis for any form of judicial relief. The sole

authorities appellees cite in support of it are Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565

(Tex. App.—Waco 2008, no pet.), and McAfee MX v. Foster, No. 02-07-00080-CV, 2008 Tex. App.


       7
           3 Law Rep. House of Lords 330 (1868).

                                                 12
LEXIS 968 (Tex. App.—Fort Worth Feb. 7, 2008, pet. denied) (mem. op.). Both opinions reflect

that a jury found a “nuisance”—although there is no elaboration regarding the form of the

charge—and that the trial court issued an injunction. Appellees extrapolate from these opinions that

no jury finding of intentional, negligent, or abnormal and out-of-place conduct is required to support

an injunction. See Hot Rod, 276 S.W.3d at 567; McAfee, 2008 Tex. App. LEXIS 968, at *1-2. To

the contrary, the opinions are silent as to whether, under the charge as submitted, the jury’s

“nuisance” finding incorporated the findings required to establish actionable nuisance. Moreover,

even if appellees’ characterizations of the jury findings in the two cases were correct, the absence

of a finding of intent, negligence, or abnormal conduct was not raised as an issue on appeal.

Consequently, neither case provides support for appellees’ argument that such finding is not

necessary to obtain injunctive relief.

               In light of the foregoing, we hold that in order for the district court to have

discretion to issue the permanent injunction, appellees were required to establish actionable

nuisance—not merely “nuisance”—either through conclusive evidence or jury findings. The jury

found that appellees had failed to establish any theory of actionable nuisance by a preponderance

of the evidence, and those findings were “binding” on the district court, see Texas Pet Foods, Inc.,

591 S.W.2d at 803, unless the evidence conclusively established actionable nuisance, see Valenzuela,

853 S.W.2d at 513. Appellees have suggested that the district court’s “finding” of “nuisance”

should be construed as a legal determination (not merely a fact finding) that the evidence

conclusively established actionable nuisance (not merely “nuisance”), see Tex. R. Civ. P. 301,

and they urge that this ruling was correct. To the extent that the district court’s judgment could be



                                                 13
susceptible to this interpretation, we would hold that the evidence falls short of conclusively

establishing actionable nuisance.

                To conclusively establish a vital fact, the evidence must be such that reasonable

people could not disagree that the fact exists. See City of Keller v. Wilson, 168 S.W.3d 802, 814-17

(Tex. 2005). To conclusively establish actionable nuisance, then, the evidence must be such that

reasonable people could not disagree that Hanson (1) intentionally created a nuisance (“a condition

that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort

and annoyance to persons of ordinary sensibilities”) as to one or more appellees; (2) did so

negligently; or (3) did so through conduct that was “abnormal and out of place in its surroundings.”

See Likes, 962 S.W.2d at 503-04. The evidence left room for reasonable disagreement as to both the

extent of any interference with appellees’ use and enjoyment of their property and Hanson’s

culpability in regard to such an interference.

                The jury heard evidence that the rock quarry has been in existence since the 1930s.

Hanson’s blasting has occurred no more than once a day, generally between 11 a.m. and 2 p.m.,

and never on nights or weekends. There was evidence that, although not directly subject to federal

or state regulations, Hanson has taken efforts to ensure that blasting at the quarry was consistent with

established federal guidelines.

                The jury heard evidence that vibrations under 0.75 inches per second peak particle

velocity (“PPV”) satisfy the federal guidelines established to determine safe blast vibration




                                                  14
intensities for single-residence houses.8 According to the measurements provided by Vibra-Tech,

an independent company hired to measure Hanson’s blasts, the average PPV was close to 0.1, and

the highest PPV was 0.59. Appellees obtained their own independent testing that indicated a higher

PPV, but their highest reading was 0.705, which was still below the 0.75 inches per second

threshold. The jury also heard evidence that only one of Hanson’s blasts, measured at 134.5

decibels, exceeded the federal threshold for air overpressure of 134 decibels. Such overpressure

reading was characterized as being “unusual,”9 and the average air overpressure of the blasting was

stated to be 110 decibels.

               Appellees provided evidence of physical damage to their homes, consisting mostly

of cracking on floors or walls. However, Hanson’s expert witness who examined the damage to

appellees’ homes testified that all such damage was due to various combinations of construction

defects, thermal expansion and contraction, moisture exposure, and normal concrete shrinkage. He

further testified that such damage was not different from that observed in houses where there were

no quarry operations.10


       8
            Catherine Aimone-Martin, Hanson’s expert on vibration measurements from blasting,
testified that PPV was the best measure to correlate to home damage. Aimone-Martin also testified
that she had “100% confidence” that there could be no damage to a single-family residence of the
construction type of appellees’ homes when the PPV was below 0.75 inches per second.
       9
           Aimone-Martin testified that even at 134.5 decibels there was no basis to believe that
Hanson’s blasting caused damage to appellees’ homes. While appellees testified regarding their
own experiencing of the blasts, Aimone-Martin testified that her conclusions were based on
scientific testing and that appellees’ perceptions did not alter her conclusions.
       10
          Appellees contend that “nuisance” was established as a matter of law based on testimony
of Bruce Northup, a representative of Austin Powder Company, one of the defendants, that he would
consider some of the damage to appellees’ houses to be a “nuisance.” However, Northup clarified
that such conclusion was predicated on the assumption that the damage was, in fact, caused by the

                                                15
                There was also evidence regarding Hanson’s taking action to reduce the impact on

the residents from Hanson’s blasting. A commission was formed by the residents to address quarry

issues. The commission’s meetings were attended by both Hanson’s representatives and concerned

residents. The readings from the blasting’s monitoring were addressed at those meetings, and there

was evidence that Hanson acted in response to resident input, including using electronic blasting

caps to decrease the blasts’ frequency, purchasing a profiler to determine weak spots for blasting,

and building a berm of dirt between the quarry and the residential subdivisions. Hanson also allowed

the quarry commission to select a company to independently monitor the blasting and, when Vibra-

Tech was selected, agreed to pay for such monitoring.

                Finally, Bob Gunnarson, the chair of the quarry commission and a resident of the

subdivisions, testified that he did not consider the quarry to be a nuisance and that he considered the

nearby train to be a greater irritation.

                In sum, there is legally sufficient evidence that Hanson’s quarry operations did not

result in an actionable nuisance to appellees. A jury could reasonably have found that Hanson did

not act intentionally or negligently to cause any “nuisance” to appellees, and that Hanson’s conduct

was not abnormal and out of place in its surroundings. Given the jury’s finding of no actionable

nuisance by Hanson and appellees’ failure to prove an actionable nuisance by Hanson as a matter

of law, the district court lacked discretion to issue the permanent injunction. See Valenzuela,

853 S.W.2d at 513-14.



blast, a conclusion with which he disagreed. Northup further testified that the blasting level required
to cause such damage would also have caused external windows to break, and there was no such
breakage.

                                                  16
                                        CONCLUSION

              We reverse the portion of the district court’s judgment issuing a permanent injunction

against Hanson, vacate the injunction, and render judgment that appellees take nothing on their

equitable claims against Hanson.11




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson

Reversed and Rendered on Motion for Rehearing

Filed: February 9, 2011




       11
            While this appeal was pending, appellees filed a motion seeking contempt sanctions
against Hanson for a violation of the permanent injunction that allegedly occurred before
the district court’s judgment was superseded. Having determined that the district court abused
its discretion in issuing the permanent injunction, we dismiss appellees’ motion as moot.
See Manufacturers Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 612
(Tex. App.—Houston [1st Dist.] 1991, no writ); Flowers v. Flowers, 589 S.W.2d 746, 747-48
(Tex. Civ. App.—Dallas 1979, no writ).

                                               17
