TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00583-CV
Alan W. Nalle, Sr., Appellant v.
James Bagan, Meredith Bagan, and Westlake Oaks Property Owners Association, Appellees
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-19-006781, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Alan W. Nalle, Sr., appeals from summary judgments granted in favor of appellees James Bagan, Meredith Bagan, and Westlake Oaks Property Owners Association (the POA). We will affirm in part and reverse and remand in part.
BACKGROUND
Nalle owns property in the Westlake Oaks subdivision in Austin, Texas, and, like all homeowners in the subdivision, is a member of the POA. The POA’s Declaration restricts the types of homes that can be constructed in the neighborhood and requires that “plans and specifications” for all buildings be “approved in writing as to harmony of external design and location in relation to surrounding structures and topography” by the POA Board or its architectural control committee. Meredith and James Bagan purchased a lot adjacent to Nalle’s home and, in 2017, began constructing a residence there. The Bagans obtained approval for the
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plans for the residence from the POA’s architectural control committee, and they later received a variance to allow the residence to exceed two stories and have a four-car garage. Nalle describes the Bagan residence as more than sixteen-thousand square feet in size, sitting on a foundation that is up to twenty-seven feet tall, with at least two stories above the foundation that are each ten to twelve feet in height. He asserts that the residence’s height exceeds the limits contained in the Declaration and its size renders it out of “harmony” when “compared to neighboring two story, 4,800 square-foot homes.” He also states that “[t]he Bagans’ reflective roof and windows caused blinding glare, rendering Nalle’s media room, dining room, kitchen, and hallway unusable 2-3 hours daily in winter”; the windows facing his home in conjunction with “Meredith Bagan’s photography created a ‘fishbowl effect’” that infringes on his privacy; and that the commercial-scale equipment used to construct the residence generated excessive noise and dust. He contacted the Bagans several times to request that they mitigate the reflections. The Bagans did not. Nalle alleges that his “property with the nuisances is $1,350,000 less than the unencumbered current market value of his property, all based on the Bagans’ disharmonious home and nuisances.” He further alleges that he has suffered physical and mental harm and emotional damage, including eye strain, headaches, and vision impairment from the glare as well as privacy loss. Nalle concludes that the Bagans’ “actions, facilitated by [the POA’s] and [a member of the architectural control committee’s] conduct, resulted in a home vastly larger than permitted, and much more valuable for the Bagans, while Nalle bore the consequences.”
After becoming aware of the plans for the Bagan residence, Nalle sued the POA in 2016 for breach of contract and negligence for failing to enforce the Declaration and asserted that the POA’s architectural control committee had failed to comply with requirements for granting a variance. He alleged that the POA’s conduct was intentional because it knew that
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approval of the variance and plans for the Bagan residence would cause him damages and violate his rights to privacy and quiet enjoyment of his home. Through his counsel, Nalle sent a series of emails in 2017 to the Bagans and to the POA complaining of reflections from the residence’s roof, which were caused initially by reflective underlayment and later by the “brownish” standing-seam metal used as the final roof material. The residence was completed in 2019.
In March 2019, Nalle and the POA reached a settlement pursuant to which the POA paid Nalle $300,000 “in full and final settlement of all claims” against the POA “in any way related to, based upon, or arising out of any of the facts, events, occurrences, circumstances, acts, omissions, transactions, or relationships that he described in his Second Amended Petition.” The settlement addressed “all monetary damages, statutory or exemplary damages, attorney’s fees, court costs, and interest that could be recoverable against any Defendant who ha[s] been named as parties to this lawsuit.” The agreement provided: “Alan W. Nalle, Sr. hereby accepts the above-referenced payment in full settlement, compromise and release of all claims as arising out of or in connection with the Lawsuit, pursuant to this Settlement Agreement, against Defendant Westlake Oaks Property Owners Association, Inc.” Pursuant to the settlement agreement, Nalle filed a motion to dismiss, which the trial court granted, dismissing Nalle’s claims against the POA “and its current and former officers, board members, agents, attorneys, representatives, heirs, and assigns” with prejudice. Despite the settlement, Nalle later sued two members of the POA’s architectural control committee: Eric Moreland, who was also the realtor who sold the Bagans the lot, and Kathryn Hale, who signed the variance as a representative of the committee. The defendants prevailed on summary judgment in both suits. See Nalle v. Hale, No. 14-22-00303-CV, 2023 WL 2609336, at *5 (Tex. App.—Houston [14th Dist.] Mar. 23, 2023, no pet.) (mem. op.) (affirming summary judgment based on one-satisfaction rule); Nalle
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v. Moreland, No. 03-21-00538-CV, 2023 WL 2025709, at *2 (Tex. App.—Austin Feb. 16, 2023, no pet.) (mem. op.) (affirming summary judgment based on res judicata).
In September 2019, Nalle sued the Bagans for damages arising from alleged nuisances the Bagans created either negligently or intentionally as a result of the construction of their residence. Nalle’s Fifth Amended Petition asserts a claim for negligence based on the nuisances and an additional claim seeking to enforce the Declaration based on the Bagans’ removal of trees from their property in 2021 without the POA’s authorization. 1 Specifically, Nalle complained of (1) the large size of the residence; (2) sunlight reflected by the residence’s standing-seam metal roof that “render[s] Nalle’s media room, dining room, kitchen, and hallway unusable” for two to three hours each day during winter; (3) the dust and noise generated by the construction process; and (4) the Bagans’ 2021 removal of trees that “opened sightlines,” thereby allowing reflections from the Bagans’ windows to shine into his home, exacerbating the loss of privacy for Nalle, and eliminating “the buffer” “that had previously mitigated the harm caused by the oversized, non-harmonious house.” He specified that “the unauthorized removal of trees by the Bagans in January 2021 allowed a previously unseen reflection to enter Plaintiff’s home. During this time of day and year, blinding focused sunlight reflected from the Bagans’ windows enters Plaintiff’s windows, rendering the affected spaces unusable.” According to Nalle, around the time of the unauthorized tree removal, James Bagan commented, “if you think the reflections were bad before, wait until you see them now.”
In response to Nalle’s negligence claims, the Bagans joined the POA as a third-party defendant, asserting claims against the POA for negligence, negligent
1 The Declaration specifies that “Approval shall be obtained from the [architectural control committee] to cut down, clear, or kill any trees on any lot.”
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misrepresentation, breach of duty of good faith and fair dealing and duty of care, and breach of restrictive covenants, all premised on theories that the Bagans relied on the POA’s approval in constructing their home and that the POA had a duty to settle possible claims against the Bagans (rather than solely claims against the POA) in its earlier settlement agreement with Nalle. The POA filed a response in which it asserted several defenses and alleged that the Bagans had selectively submitted plans for review by the POA rather than submitting all of the plans for the home, such that they misled the POA regarding the home’s attributes. On April 7, 2025, the POA moved for partial summary judgment under Texas Rule of Civil Procedure 38, arguing that “Nalle’s negligence action against the Bagans is barred by the one satisfaction [rule] and must be dismissed with prejudice” and that, as a result, the Bagans’ claims against the POA must also be dismissed with prejudice.
On April 22, the Bagans filed a motion for traditional and no-evidence summary judgment. The no-evidence motion asserted that Nalle produced no evidence of damages for any of his claims and no evidence that the Bagans violated the Declaration by cutting down or removing trees. The traditional motion asserted Nalle’s claims are barred by the one-satisfaction rule, by collateral estoppel, and by Nalle’s deposition testimony showing that he has no damages. 2
2 In their brief, the Bagans argue that summary judgment was appropriate because Nalle failed to assert an actionable claim for nuisance, but this argument was not included in their motion for summary judgment, so to the extent that it may differ from the arguments they have made relating to the one-satisfaction rule, collateral estoppel, or evidence of damages, we cannot consider it on appeal. See Tex. R. Civ. P. 166a (“A motion for summary judgment shall state the specific grounds therefor.”); Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 357 (Tex. 2000) (trial court by erred granting summary judgment on claim not addressed by motion); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (movant “must establish his entitlement to a summary judgment on the issues expressly presented to the
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On May 5, 2025, Nalle filed responses, arguing that neither the one-satisfaction rule nor collateral estoppel bar him from recovering damages in excess of $300,000 or from recovering for “distinct injuries,” “continual injuries,” or injuries caused by parties other than the POA. Attached to the responses were unsworn declarations by Nalle and his attorney, along with supporting exhibits. On May 12, the Bagans filed objections and moved to strike portions of Nalle’s declaration and Exhibits 4 (hundreds of pages of documents, including assorted emails and deposition excerpts) and 5 (an email from POA’s counsel confirming that the Bagans had not received POA approval to remove any trees since the initial construction in 2017). On May 13, the trial court heard the Bagans’ and POA’s motions for summary judgment. Nalle filed a response to the objections and motion to strike on May 14. That same day, the trial court signed orders granting the appellees’ summary judgments without specifying the grounds on which it was relying. On May 27, the trial court signed an order that provided:
On May 13, 2025, the Court heard Defendants James and Meredith Bagan’s (“the Bagans”) Objections to and Motion to Strike Plaintiff Nalle’s (“Plaintiff” or “Nalle”) Summary Judgment Evidence (the “Motion”). In connection therewith, the Court enters the following rulings on the Bagans’ objections to Plaintiff Alan W. Nalle, Sr.’s affidavit attached as Exhibit 1 to Plaintiff’s response to the Bagans’ Motion (the “Affidavit”), and on the Bagans’ objections to Exhibits 4 and 5 attached to Plaintiff’s summary judgment response.
The order then sustained the Bagans’ objections to Nalle’s summary-judgment evidence. The Bagans nonsuited their claims against the POA, such that the orders granting summary judgment became final.
Nalle filed two motions for new trial, reasserting arguments as to why summary judgment was improper as to each of the defendants and arguing that the trial court erred by
trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law”).
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entering an order striking his summary-judgment evidence two weeks after granting the summary judgments. The trial court denied the motions. Nalle appeals.
ANALYSIS
Nalle raises four issues on appeal: (1) the trial court erred in granting the Bagans’
traditional and no-evidence motion for summary judgment, (2) the trial court erred in granting summary judgment in favor of the POA, (3) the trial court abused its discretion by sustaining objections to and striking some of Nalle’s summary-judgment evidence, and (4) the trial court abused its discretion in denying Nalle’s motion for new trial.
Ruling on the Bagans’ Traditional and No-Evidence Motion for Summary Judgment We review the trial court’s summary-judgment ruling de novo. See Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Under this standard, we view “the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Zive, 644 S.W.3d at 173.
“A party moving for traditional summary judgment must prove that no genuine issue of material fact exists and it is entitled to judgment as a matter of law.” Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023); see Tex. R. Civ. P. 166a(c). 3 A movant seeking a no-evidence summary judgment must assert that “there is no
The Texas Supreme Court recently amended Texas Rule of Civil Procedure 166a, but
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“[o]ther than the deadline changes, Rule 166a’s rewrite is not intended to substantively change the law.” Tex. R. Civ. P. 166a (cmt. to 2026 change). The amendments renumbered the rule’s provisions. See Supreme Court of Tex., Final Approval of Amendments to Rule 166a of the
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evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). “The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact” on the challenged elements. Id.; see JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (explaining that “no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion”).
“A genuine issue of material fact exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “The evidence does not create an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)). When a trial court grants a summary-judgment motion without specifying its grounds for doing so, we affirm the judgment if the movant advanced any meritorious theory in the trial court. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Nalle asserts that fact issues preclude summary judgment on all his claims and that (1) the one-satisfaction rule does not bar his claims against the Bagans; (2) collateral estoppel does not apply; (3) he submitted more than a scintilla of evidence of damages and breach of the Declaration.
Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). Because the amendments apply only to summary-judgment motions filed on or after March 1, 2026, and the filing of the Bagans’ summary-judgment motion preceded the amendments, we refer to the provisions of Rule 166a in effect at the time of filing. See id.
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One-Satisfaction Rule
Although they were not parties to the settlement, the Bagans assert that “the one satisfaction rule bars Nalle’s continued complaints about the Bagans’ home, which were fully resolved in Nalle’s first lawsuit against the POA.” Nalle urges that the one-satisfaction rule does not bar his claims against the Bagans because his settlement with the POA “did not encompass the Bagans’ superseding acts, which inflicted separate harms.”
“The one satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the same injury.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991); see also Crown Life Ins. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). Under this rule, a plaintiff is entitled to one recovery for damages suffered when multiple defendants commit the same act as well as when multiple defendants commit technically different acts resulting in a single injury. Casteel, 22 S.W.3d at 390; see El Paso Nat. Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex. 1993) (per curiam) (“The one satisfaction rule provides that a party which suffers but one injury can recover only one satisfaction for damages arising from that injury.”). The rule focuses on whether the plaintiff has suffered a single, indivisible injury and not the alleged causes of action. Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 113– 15 (Tex. 2018). We review the trial court’s application of the one-satisfaction rule de novo. Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d 145, 163 (Tex. App.—Austin 2017, pet. denied) (en banc).
“A nonsettling defendant seeking a settlement credit under the one-satisfaction rule has the burden to prove its right to such a credit.” Id. at 107 (citing Utts v. Short, 81 S.W.3d 822, 828 (Tex. 2002); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998)). A nonsettling defendant can meet this burden by introducing into the record the
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settlement agreement or other evidence of the settlement amount. Mobil Oil Corp., 968 S.W.2d at 927. “Once the nonsettling defendant demonstrates a right to a settlement credit, the burden shifts to the plaintiff to show that certain amounts should not be credited because of the settlement agreement’s allocation.” Utts, 81 S.W.3d at 828. “The plaintiff can rebut the presumption that the nonsettling defendant is entitled to settlement credits by presenting evidence showing that the settlement proceeds are allocated among defendants, injuries, or damages” such that entering judgment would not provide the plaintiff a double recovery. Sky View at Las Palmas, LLC, 555 S.W.3d at 107–08; see First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 79 (Tex. 1993) (applying one-satisfaction rule when plaintiff did not show it settled for separate injury). Summary judgment based on the one-satisfaction rule is proper when it would prevent a claimant from recovering more than the amount required for full satisfaction of his damages. See El Paso Nat. Gas Co., 858 S.W.2d at 363–64 (affirming summary judgment based on one-satisfaction rule and collateral estoppel where settlement payment from one defendant fully satisfied all damages sought from second defendant).
Unlike the defendants in Nalle’s previous lawsuits, the Bagans are not “current and former officers, board members, agents, attorneys, representatives, heirs, and assigns” of the POA. Thus, they are not expressly covered by the settlement agreement. The question then is whether Nalle’s claims seek to recover from the Bagans for the same injury alleged in the suit against the POA—the one-satisfaction rule bars recovery for any such claims absent evidence of damages exceeding the amount of the settlement agreement.
In his suit against the POA, Nalle asserted,
The construction of the Bagan home has created nuisances, past, present and future, in violation of the Declaration, including but not limited to the following:
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current and past construction of the overlarge and raised residence; future HVAC equipment noise and heat, future landscape lighting, future security lighting, guest noise, guest parking, and the excessive height of the home (twice the allowable height) and will create an ongoing violation of plaintiff’s right to privacy and right to quiet enjoyment of his home.
In other words, he specifically complained of the nuisances caused by “current and past construction” and the residence’s “disharmonious” size or other “nuisances, past, present, and future” created by the residence as approved by the POA’s architectural control committee. Nalle repeatedly contacted both the Bagans and the POA regarding the roof’s height, angle, and materials to express that reflections were one of the nuisances to which he had objected since 2017. The Declaration provides the POA or its architectural control committee the discretion to approve “as to harmony of external design and location in relation to surrounding structures and topography” the “plans and specifications showing the nature, kind, height, materials, and location” of any structure and any change to the exterior of any structure. The Bagans submitted plans to the POA’s architectural control committee, which approved them and provided them with a variance specifically allowing the residence to exceed the usual two-story height limit specified in the Declaration. A result of the POA’s approval of the plans was that construction could, and did, ensue. Because Nalle alleged these same injuries of “current and past construction,” the resulting “overlarge and raised residence,” and ongoing nuisances caused by the residence’s construction and existence in his suit against the Bagans, these claims relating to POA-approved aspects of the home’s initial construction are barred by the one-satisfaction rule except insofar as any resulting damages exceed $300,000. See Utts, 81 S.W.3d at 828 (when defendant has introduced evidence of settlement amount, burden shifts to plaintiff to show allocation of settlement amounts).
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Nalle’s remaining complaint is that in 2021 (more than a year after the POA settled with Nalle), the Bagans violated the Declaration’s prohibition on cutting down, clearing, or removing any trees by clearing trees on their lot, including at least one large hackberry tree and other smaller trees that had been growing between their house and Nalle’s without seeking POA approval. Nalle asserts that this tree removal, in addition to violating the Declaration, caused “blinding glare” from sunlight reflected off the Bagans’ windows and further deprived him of privacy. Tree removal in violation of the Declaration was not referenced in the suit against the POA and is distinct from Nalle’s complaints of home construction in violation of different provisions of the Declaration or pursuant to the variance granted by the POA. Because the complaint of tree removal articulates an injury not addressed by the suit against the POA, we conclude that the Bagans have not shown that the one-satisfaction rule bars Nalle from recovering for this later injury.
Collateral estoppel The doctrine of collateral estoppel precludes relitigation of particular issues resolved in a prior suit, Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992), and is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments, Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994). To invoke collateral estoppel, a party must establish that “(1) the facts sought to be litigated in the second action were fully and fairly litigated in a first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.” In re USAA Gen. Indem. Co., 629 S.W.3d 878, 883 (Tex. 2021) (orig. proceeding) (quoting Sysco Food Servs., Inc., 890 S.W.2d at 801). “Collateral estoppel does not apply when claims
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are dismissed with prejudice without litigation of any issues.” Indemnity Ins. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.—Dallas 2008, no pet.) (citing Sinton Sav. Ass’n v. Ellis, 474 S.W.2d 281, 286 (Tex. App.—Corpus Christi–Edinburg 1971, writ ref’d n.r.e.)). Collateral estoppel applies only when the party against whom it is asserted “had a full and fair opportunity to litigate the issue in the prior suit.” Tarter v. Metropolitan Sav. & Loan Ass’n, 744 S.W.2d 926, 927 (Tex. 1988); see also Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 519 (Tex. 1998) (“Defensive collateral estoppel is utilized by defendants to prevent relitigation by a plaintiff of issues previously lost against another defendant.”). “To prove that an issue has been actually litigated, the first element of collateral estoppel, it must be shown that the issue . . . was properly raised, submitted for determination, and determined.” French v. Gill, 206 S.W.3d 737, 744 (Tex. App.—Texarkana 2006, no pet.) (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985)).
Nalle’s claims against the POA were dismissed with prejudice without having been “fully and fairly litigated.” Consequently, collateral estoppel does not apply. See Indemnity Ins., 258 S.W.3d at 271.
Evidence of damages and breach of Declaration Nalle asserts that the trial court erred in granting the Bagans’ no-evidence motion because the record contains evidence of various damages for his claims and evidence that the Bagans violated the Declaration by cutting down or removing trees. Regarding evidence of damages, Nalle argues that the “record supports $1.35 million in losses from property value diminution, loss of use, and personal injuries.” In his declaration, Nalle opined that his property’s fair market value had diminished by $1,350,000 because of the “ongoing reflective
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nuisances, privacy loss, and the Bagans’ disharmonious home.” The Bagans object that this opinion in Nalle’s declaration is conclusory. Although Nalle has challenged the ruling on the Bagans’ objections to his summary-judgment evidence as untimely, that analysis does not impact our analysis of whether evidence is conclusory or otherwise incompetent to support summary judgment because we may consider such substantive evidentiary challenges for the first time on appeal. See Investment Retrievers, Inc. v. Fisher, No. 03-13-00510-CV, 2015 WL 3918503, at *4–5 (Tex. App.—Austin June 25, 2015, no pet.) (mem. op.) (noting the distinction between challenges to form and challenges to substance of summary-judgment evidence); Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (“defects in the substance of the opposing party’s evidence are not waived, and can be raised for the first time on appeal”).
We agree with the Bagans. Nothing in the record explains how Nalle valued his property before or after the construction of the Bagans’ home, nor does the record reveal the value of his home at any point. Instead, Nalle generally averred that he is familiar with property values in the neighborhood, that his loss is the difference in value of his property with and without the nuisances, and then, without explanation as to the value of his property or the value of any of the alleged nuisances, he concludes that the lost value is $1,350,000. In the absence of an explanation or other supporting evidence, this bare conclusion as to the amount of lost property value is no evidence of his alleged damages. See Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 161 (Tex. 2012) (“We conclude that the landowners’ bare conclusions provide no evidence of the damage caused by the nuisance.”); Golden Corral Corp. v. Noble Aus. Apartments L.L.C., No. 03-19-00463-CV, 2021 WL 2878565, at *6–8 (Tex. App.—Austin July 9, 2021, no pet.) (mem. op.) (citing Bombardier Aerospace Corp. v. SPEP
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Aircraft Holdings, LLC, 572 S.W.3d 213, 223 (Tex. 2019) and noting, after discussing standards for testimony of diminished value, that “assertions of familiarity with area market values are insufficient to make otherwise conclusory or speculative testimony legally sufficient”). Nalle’s deposition does not provide added clarity. In it, he opined that he was entitled to “more than $1 million for me,” and when asked how he arrived at that estimate, he responded, “Pulled it out of the sky.” He was also asked about the current fair market value of his property. He responded, “I have no idea.” He acknowledged than the POA had an appraisal of his home done in 2017 and said “the appraisal I think was $2 million, something like that” and later added “I assume that that was made as instructed appraisal for whatever purposes they wanted it. So I don’t—I don’t put much stock in those kinds of things.” He stated he had “no idea” if the home had increased in value since 2017. Nalle also seems to argue that he based his estimate of diminished value on conversations with a potential buyer of the Bagan residence. Nalle avers that a potential buyer opted not to complete the purchase based on the results of a home inspection and on learning of Nalle’s lawsuit, but the potential buyer did not, in the record we have, provide an opinion regarding value of the Nalle residence. We conclude that Nalle presented no competent evidence of diminished property value.
As for physical property damages, Nalle asserted in his declaration that dust from construction damaged his property inside and outside of his home because it “require[d] cleaning.” In his deposition, he did not identify work beyond routine cleaning that was needed to restore his property to its usual condition and noted that the cleanup costs he incurred from having his “yard guy” and housekeeper clean did not exceed the amounts they are paid for their regular work. Accordingly, we conclude that Nalle presented no evidence of damages resulting from construction dust.
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Nalle also complained in his declaration of noise that “persisted throughout construction,” thereby intruding on his “quiet enjoyment” of his home. As support for this claim, he provided photographs of trucks and equipment that appear to be on public roadways or the Bagan property. This noise complaint stems from the construction of the home that was approved by the POA’s architectural control committee, and Nalle has not identified damages he continues to suffer or what separate injury he suffered as a result of independent acts by the Bagans. More importantly, Nalle did not specify how the construction noise intruded on his quiet enjoyment, and he did not detail the duration or severity of the noise. Nor does he identify damages he suffered from pollution. Accordingly, we conclude that Nalle’s conclusory statement that construction noise disrupted his quiet enjoyment of his home provided no evidence of damages from construction noise or pollution. See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“Conclusory affidavits are not enough to raise fact issues.”; “They are not credible, nor susceptible to being readily controverted.”); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
Nalle stated in his summary-judgment response that he has suffered loss of use and enjoyment, personal injuries, and harm to his health and peace of mind as a result of the reflections of sunlight that shine from the Bagans’ roof and windows. He specifically stated that “roof reflections (November–January) and window reflections (since June 2021) render rooms unusable.” In his deposition, he specified that the duration of the glare is up to “2-3 hours” each day during the winter months and that it does not render all rooms unusable for that duration, but instead the glare “sort of moves,” starting in the media room, then continuing through other windows of his home. He explained that the media room does not have curtains or blinds. He confirmed that he has not received medical treatment for any alleged harms to his physical or
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mental health relating to the reflections and explained that when he alleged harm to his health, he meant “Peace of mind, quiet enjoyment, aggravation,” and later elaborated that the harm to his mental health and state of mind “has a very strong effect on your physical health.” He submitted photographs taken from two rooms in his home showing bright reflections from the roof and windows of the Bagan residence that are visible through the windows of Nalle’s home. In his declaration, Nalle averred that the reflections “prevent me from using my media room, dining room, kitchen, and hallway during affected periods.” He further explained that although these reflections “cause eye strain, headaches, and temporary vision impairment”—ailments not mentioned in his deposition—he has “not installed blinds, shades, or trees to block reflections, as blinds are out of character with my home’s design (only bedrooms have curtains) and no tree could block the 35-foot-high roof reflections.” He then concludes that the “distinct harms and damages” from the reflections are “far in excess of $300,000.” Nalle does not explain the basis for his conclusion that the damages he has suffered from the roof reflections (which formed part of the basis of his initial lawsuit as an ongoing or “past, present, or future” nuisance) exceed the $300,000 he received from settling the suit against the POA. Accordingly, Nalle’s conclusory statement regarding the amount of his damages is not competent evidence sufficient to survive the Bagans’ no-evidence motion.
In sum, Nalle has not presented competent evidence of damages in excess of the $300,000 he received from the POA for the alleged resulting nuisances. We therefore overrule Nalle’s first issue as it relates to his negligence claims arising from the initial construction of the Bagan residence.
Unlike his negligence claims, Nalle’s complaint regarding the removal of trees is based on the Bagans’ violation of the Declaration’s prohibition on removing “any trees on any
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lot” without POA approval. In addition to violating the clause prohibiting tree removal, Nalle asserts the Bagans’ conduct also resulted in a violation of the Declaration’s “Nuisance” provision, which provides that “Nothing shall be done or permitted on any lot which may be or become an annoyance or nuisance to the neighborhood.” The Bagans do not dispute that they removed trees from their property in 2021 without POA approval. Nalle testified to the Bagans’ removal of trees in his deposition, asserting that their removal resulted in removal of a visual buffer that opened up new reflections that impacted his home. Nothing in the record contradicts his claim that this violated the Declaration or amounted to an “annoyance or nuisance” within the meaning of the Declaration. The Declaration specifically provides that property owners have a right to enforce its covenants and restrictions “by any proceeding at law or in equity against any person or persons violating or attempting to violate any covenant or restriction.” We conclude that the trial court erred in granting summary judgment against Nalle on his claim for violation of the Declaration’s prohibition on unapproved tree removal, and we sustain this portion of Nalle’s first issue.
Ruling on POA’s Rule 38 Partial Motion for Summary Judgment The POA moved for summary judgment on the ground that the one-satisfaction rule bars plaintiff’s negligence claims against the Bagans, such that the POA cannot be liable. As discussed above, we agree that such claims are barred to the extent that damages for these negligence claims did not exceed the amount paid as a result of the settlement. Having determined that Nalle did not produce competent summary-judgment evidence showing that he sustained damages in excess of the settlement amount resulting from the negligence claims, we conclude that the POA could not be liable “for all or part of the plaintiff’s claim negligence
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claims against” them. Tex. R. Civ. P. 38(a). We overrule Nalle’s second issue and affirm the trial court’s grant of summary judgment in favor of the POA.
Ruling on Objections and Motion to Strike Nalle’s third issue challenges the trial court’s evidentiary ruling striking portions of his declaration and Exhibits 4 and 5 to his responses to the Bagans’ and POA’s motions for summary judgment. His sole complaint on appeal is that the trial court abused its discretion by ruling on the Bagans’ objections two weeks after ruling on the motions for summary judgment.
“The same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings.” FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022) (quoting Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163–64 (Tex. 2018) (per curiam)). We review a trial court’s ruling to admit or exclude evidence for an abuse of discretion. National Liab. & Fire Ins. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000). A trial court abuses its discretion “by acting ‘without reference to any guiding rules and principles.’” Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). Further, a trial court’s error in admitting or excluding evidence is reversible only if it probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). On summary-judgment, a trial court’s “review generally extends to the evidence that was before the court when it ruled, absent an indication that the court did not consider certain evidence for purposes of that ruling.” Plotkin v. Joekel, 304 S.W.3d 455, 485–86 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Methodist Hosps. of Dall. v. Tall, 972 S.W.2d 894, 898
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(Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (“It is axiomatic that an appellate court reviews actions of a trial court based on the materials before the trial court at the time it acted.”)).
Nalle contends, “The trial court’s decision to sign the strike order on May 27, 2025—thirteen days after granting summary judgments . . . without a hearing or post- judgment opportunity for Nalle to respond was a blatant abuse of discretion that created an irreconcilable contradiction and violated due process.” He cites Texas Rule of Civil Procedure 21 in support of this argument. While the rule provides for notice and an opportunity to participate in proceedings on motions, it does not require a “post-judgment” opportunity to be heard on a motion that the court is reviewing by submission. See Tex. R. Civ. P. 21(b). Nalle further asserts that the “summary judgment orders expressly recited that the court ‘considered the motion, the response, the reply, the evidence, and the arguments of counsel’ . . . , implying full reliance on Nalle’s submissions.”
In addressing the concept of ruling on objections after ruling on summary judgments in the context of the issue of waiver, the Fourteenth Court explained in Dolcefino v. Randolph,
the better practice is for the trial court to disclose, in writing, its rulings on all objections to summary judgment evidence at or before the time it enters the order granting or denying summary judgment. Practitioners should facilitate this procedure by incorporating all parties’ objections to summary judgment evidence in proposed orders granting or denying summary judgment and including a “Mother Hubbard” recitation to encompass any objections not otherwise addressed in the proposed orders. This practice will direct the trial court’s attention to the matter, and serve as a reminder to the court to disclose its rulings on all objections to summary judgment evidence at the time it issues its ruling on the summary judgment motion. Following this practice becomes especially critical where the trial court takes the motion under advisement or rules on it without an oral hearing because, in such cases, there is no live forum in which to insist on disclosure of the court’s rulings on the objections prior to the court’s ruling on the motion. In any context, however, it is incumbent upon the party
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asserting objections to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver. See Tex. R.
App. P. 33.1(a).
19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see Seim, 551 S.W.3d at 165 (quoting and approving of this language from Dolcefino). The Dolcefino court determined that because the trial court never revealed its presumptive ruling on appellants’ objections, the court could not infer those rulings from the judgment. Id. at 926–27.
In this case, however, the trial court revealed its ruling in a written order signed thirteen days after the court entered summary judgment. Some of our sister courts have addressed similar circumstances and overruled complaints regarding post-summary-judgment rulings on objections when the record reflects that the trial court considered and ruled on objections at or before the time it ruled on a motion for summary judgment, memorializing that ruling at a later time. E.g., Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 420–21 (Tex. App.—Dallas 2002, no pet.) (holding that order sustaining evidentiary objections signed 89 days after summary-judgment ruling was effective to memorialize evidentiary ruling made before summary-judgment order’s signing, the summary-judgment order stated the court had considered “evidence admitted for consideration” and parties’ objections); Hill v. Crowson, No. 10-09-00006-CV, 2009 WL 3858065, at *1–2 (Tex. App.—Waco Nov. 18, 2009, no pet.) (mem. op.) (relying on Crocker and overruling challenge to written ruling on objections signed nearly one month after summary judgment ruling when ruling on objections “states that the objections were considered, along with the no-evidence motion, on the submission date”); see also Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 295 (Tex. App.—Dallas 2009, no pet.)) (acknowledging breadth of trial court’s plenary power to issue post-summary-judgment rulings
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on objections and stating, “Although we are troubled by the timing of the orders, we note that the Texas Rules of Civil Procedure do not prescribe a period of time in which a court is required to rule on summary judgment objections.” (citing Tex. R. Civ. P. 166a)). The First Court of Appeals in Plotkin sustained an objection to a written ruling on objections signed more than two months after the order on summary judgment was rendered when it was “not entirely clear” “that the court did not consider the disputed evidence at the time of its summary-judgment ruling.” 304 S.W.3d at 486. In Plotkin, nothing in the record specified that the trial court had considered the objections at or before the time it ruled on the summary-judgment motion, and the party raising the objections requested in its motion for new trial that the court rule on the objections and specifically stated in the motion for new trial that the court did not rule on the objections. Id.
Here, the trial court’s ruling on the Bagans’ objections states that the court heard the objections on the same day as the hearing on the motions for summary judgment, and the court did not issue a summary-judgment ruling until the day it received Nalle’s responses to the objections. Because the record indicates that the court, in ruling on the summary judgments, did not consider the evidence for which it later memorialized its ruling sustaining the Bagans’ objections, we overrule Nalle’s third issue.
Motion for New Trial In his fourth issue, Nalle challenges the trial court’s denial of his motions for new trial for the same reasons already identified in his first three issues. Our analysis of this issue would therefore reach the same result—partially remanding the case to the trial court—without affording Nalle any greater relief. Accordingly, we do not separately address Nalle’s fourth issue. See Tex. R. App. P. 47.1.
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CONCLUSION
We reverse the portion of the trial court’s order granting summary judgment in favor of the Bagans on Nalle’s claim for breach of the Declaration’s prohibition on removing trees without POA approval and remand for further proceedings. The trial court’s summary-judgment orders are otherwise affirmed.
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Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis Affirmed in Part; Reversed and Remanded in Part Filed: August 14, 2026