Luensmann v. Zimmer-Zampese & Associates, Inc.

Texas Court of Appeals, San Antonio · Property

PropertyNuisanceTrespassInjunctive Reliefnuisancenuisance per setrespassdrag racing track

Facts

Zimmer-Zampese began constructing a drag racing strip about 700 feet from the Luensmann and Reininger homes, and the track later operated races on Wednesday, Friday, Saturday, and Sunday nights. The homeowners complained of loud noise, vibrations, lights, smoke, and fumes, but their properties were also near Interstate 10, railroad tracks, a shooting range, Zuehl Airport, Randolph Air Force Base flight paths, and later a moto-cross track. At trial, the operator presented evidence that noise at the homes exceeded 85 decibels even before the track was built and that barriers and soundproofing devices were installed to prevent smoke, noise, and fumes from entering the property. The trial court excluded evidence related to the Penal Code disorderly conduct statute, directed a verdict on nuisance per se, and the jury found no nuisance and no trespass.

Issue

Whether the trial court erred by excluding evidence of the disorderly conduct statute, directing a verdict against the homeowners on nuisance per se, rejecting post-verdict relief, and denying permanent injunctive relief after the jury found no nuisance and no trespass. The appeal also raised whether the evidence was legally and factually sufficient to support the no-trespass finding.

Rule

A rebuttable statutory presumption is not itself evidence, and once rebutting evidence is introduced, the presumption disappears. Nuisance per se is not established merely by showing a statutory violation and a nuisance; it may be shown either by proving the activity is a nuisance at all times, under any circumstances, and in any location, or, under a violation-of-law theory, by proving a violation of law plus additional evidence of nuisance. A trespass requires some entry onto another's land without consent, and permanent injunctive relief requires proof including irreparable injury.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Amarillo, Dana Mercer sues High Plains Kartway, a go-kart facility, alleging nuisance per se because the track operates loudly on Friday and Saturday nights. Her petition alleges the track is offensive during those evening events but says nothing about daytime hours or days when the facility is closed.

If the operator moves for a directed verdict on the nuisance per se claim, what is the strongest basis for granting it?

Explanation. Under the majority opinion, one way to prove nuisance per se is to show the activity is a nuisance at all times, under any circumstances, and in any location. If the plaintiff's own pleadings allege nuisance only during limited operating periods, those pleadings undercut that theory and can support a directed verdict. The case rejects adding intent or criminal-conviction requirements, and it does not create a categorical exemption for recreational businesses.