A recent opinion by the Corpus Christi-Edinburg Court of Appeals provides an informative discussion of the law of private and public nuisance in Texas, particularly with respect to a private plaintiff’s standing to bring a nuisance claim. Given the legislative interest in the common law doctrine of public nuisance last session (HB 2144), cases such as this one offer at least a glimpse into how far courts might be willing to go to allow private plaintiffs to assert a claim for nuisance on behalf of the public. In this case at least, the court of appeals did not let it go very far at all.
Texas Auto Salvage, Inc., Gary Hack, and Daniel Hack v. D D Ramirez, Inc., Danny Ramirez Recycling, Inc., San Antonio Auto & Truck Salvage, Danny’s Recycling & Precious Metals, LLC, Danny’s Recycling, Inc., and Daniel Delagarza Ramirez (No. 13-19-00500-CV) arose from a dispute between two auto salvage businesses, Texas Auto Salvage of “TASI,”, and D D Ramirez or “DDR,” both of which are located on Somerset Road in San Antonio. TASI sued DDR for, among other things, public nuisance, private nuisance, abuse of process, malicious prosecution, unjust enrichment, and conversion. TASI alleged that DDR maintained its metal recycling yards “polluted, dirty, unkempt, and in a condition that violates city, state, and federal rules, regulations, and laws,” and that this condition adversely affected TASI’s business across the street. TASI based its public nuisance claim on both common law and alleged violations of San Antonio’s Municipal Code, particularly citing DDR’s failure to obtain a required certificate of occupancy for some of its facilities and its violation of the ordinance’s definition of “public nuisance.” TASI sought temporary and permanent injunctive relief. DDR counterclaimed, alleging defamation, business disparagement, invasion of privacy, and tortious interference with existing and prospective contracts, as well as a claim that TASI committed arson by burning a car crusher at DDR’s facility in 2011 (interesting that DDR did not attempt to dismiss some or all of TASI’s claims under the TCPA).
The court of appeals’ review of the evidence at trial would be comic if it were not so troubling with respect to the manner in which the City of San Antonio enforced its rules governing salvage yards in this particular case. TASI claims to have brought the lawsuit to get DDR to clean up their premises, but it attempted to show financial harm caused by DDR’s “nuisance” by offering evidence of the amount of revenue it would generate if DDR went out of business (the trial court did not let that evidence come in as “expert” testimony on damages). It also came out at trial that TASI had compliance issues of its own, although DDR did in fact commit several code violations (including discharging oil and automobile fluids into a public storm drain) and offered free auto repair and other favors to San Antonio code enforcement officers, one of whom had to resign when outed. The evidence also includes a statement from a former DDR employee who claimed his old employer “purchased stolen vehicles on a regular basis” but denied that he set DDR’s car crusher on fire, despite having “done [his] share of crimes.” (There is more testimony of this ilk, but you get the point.) When this mess got to the jury, it gave the parties a split decision, finding that DDR did not intentionally or negligently create a private nuisance, the city and its employees were derelict in their duty to enforce the Municipal Code with respect to DDR, some DDR facilities constituted a public nuisance under the Municipal Code, TASI did not commit arson or invasion of privacy, and TASI was entitled to $86,000 in attorney’s fees. DDR moved for judgment notwithstanding the verdict, which the trial court granted and rendered final judgment that both parties take nothing.
The court of appeals affirmed. The bizarre facts aside, the legal issues are significant, and the court of appeals opinion, authored by Chief Justice Dori Contreras and joined by Justices Hinojosa and Silva, offers a thoughtful and restrained reading of nuisance law. With respect to the public nuisance claim, the court stated that a “public nuisance ‘is a condition that amounts to an unreasonable interference with a right common to the public’” (citing Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673 (Tex. App.—Austin 1998, no pet.; Restatement (2d) of Torts § 821B(1)(1979)). A public nuisance must “affect the public at large” by “adversely affecting either the entire community, a public gathering placer, or even a considerable portion of the citizenry” (citing Bolton v. Fisher, 528 S.W.3d 770 (Tex. App.—Texarkana 2017, pet. denied)). The court distinguished a private nuisance, which “affects an individual or a small number of individuals rather than the public at large” (citing Mathis v. Barnes, 317 S.W.3d 926 (Tex. App.—Tyler 2012, no pet.)).
The court then turns to SCOTX’s recent clarification of common law private nuisance in Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (2016). In that case SCOTX ruled that the term “nuisance” refers not to a wrongful act or resulting damages, but solely to a “legal injury—the use and enjoyment of property—that may result from the wrongful act and result in the compensable damages.” Such a legal injury only occurs if the interference is “substantial” and causes “discomfort or annoyance” that is “unreasonable.” In order to bring a nuisance action, however, the private plaintiff must have standing, which the court of appeals described as a “component of subject matter jurisdiction, a constitutional prerequisite to filing of suit” (citations omitted). In order to have a justiciable interest, the “plaintiff must allege some injury distinct from that sustained by the public at large.” Put another way, an individual plaintiff may not “restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself.”
Applying these principles, the court of appeals found that TASI had no standing to sue based on the alleged dereliction of the city to enforce its municipal ordinances without establishing a special injury. This TASI failed to do, either with respect to the alleged financial harm it suffered as a result of competition with DDR or its allegation that pollution caused by DDR’s activities produced specific detrimental effects on its property. To the extent DDR’s pollution affected anybody, it was the public at large, with no specific harm to TASI. TASI attempted to argue, relying on precedents the court of appeals characterized as “of remote vintage,” that it had standing to enjoin a public nuisance virtue of the alleged nuisance’s close proximity to TASI’s proprty alone. The court rejected this argument as well, finding the precedents both inapposite and supportive of the special injury rule. Finally, the court ruled that TASI’s private nuisance claim suffered from the same lack of evidentiary support for a “concrete and particularized injury” as the standing issue did with respect to special injury. It therefore affirmed the trial court’s take nothing judgment against both parties.
This case is particularly interesting in two ways. First, it reveals the paucity of Texas case law applying common law public nuisance. In addition to a handful of intermediate appellate decisions, TASI could cite only a single 1911 Texas Supreme Court precedent, American Construction Co. v. Seelig, 133 S.W. 429. In that case, the Court upheld an injunction requiring the construction company to build a fence on the basis that the company’s permit from the city was invalid. Nevertheless, the Court required the private plaintiff to show special injury for standing purposes, which it did. Indeed, in the Crosstex case referred to above, SCOTX noted the confusion in Texas courts about what constitutes a “nuisance” and declined in that context to make any comment about public nuisance at all. So while a few courts of appeals, including the court in this case, have appeared to recognize the existence of a common law doctrine of public nuisance along the lines of the Restatement of Torts 2d, SCOTX has simply not delineated it as it has for private nuisance in Crosstex. Presumably, SCOTX is waiting for the right case, but it has to date passed on all of the few opportunities that have presented themselves.
Second, whatever the doctrine of public nuisance may entail in Texas, the court of appeals nevertheless insists that a private plaintiff must have standing to bring such a claim, and standing requires a showing of special injury, not generalized harm to the “public.” This is a high bar that requires a fact-intensive analysis and specific evidence. The court of appeals’ opinion certainly does not appear to welcome such claims, especially when they have the odor of private grievance masquerading as a public injury.