Gulledge v. Wester

562 S.W.3d 809
CourtCourt of Appeals of Texas
DecidedDecember 4, 2018
DocketNO. 01-17-00488-CV
StatusPublished
Cited by1 cases

This text of 562 S.W.3d 809 (Gulledge v. Wester) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulledge v. Wester, 562 S.W.3d 809 (Tex. Ct. App. 2018).

Opinions

Harvey Brown, Justice

In this negligent nuisance case, Clear Lake Shores residents, Robert and Diana Gulledge, were permanently enjoined from finishing construction of a second-story deck on their boathouse after their neighbors complained that the tall structure would block their water views. The Gulledges appeal, contending that the evidence is legally and factually insufficient to support the negligent nuisance claim and the issued injunction. Alternatively, they argue that the injunction is broader than the pleadings and evidence permitted.

We reverse and render.

*811Background

Roughly a dozen homes are located on Blue Point Road, a waterfront community in Clear Lake Shores. Blue Point Road is a "unique area" of the Clear Lake channel, where the water is particularly deep and provides direct access to the Gulf of Mexico for large boats headed to sea. Through a licensing process with the State, Blue Point Road residents can construct boathouses in the channel that function as garages for the homeowners' boats. This makes the community attractive to people who own large boats and want to store them in attached boathouses.

There are no other neighborhoods nearby with such deep-water access. One expert testified that it is "very difficult to find water this deep up to a residential lot.... It's a very limited commodity, and it's very valuable." He explained that there are only two places "in the Galveston Bay system" where someone can store 40-feet or longer boats behind their homes. According to the expert, there is "a relationship between the depth of the water and what size boats you might expect people would be able to utilize or berth behind their houses on Blue Point Road." And "if it's a big boat, it's going to require a big boathouse." Another witness testified about the Blue Point subdivision, "You're not limited to the size [boat] that you could bring in."

Thus, the ability to store a large boat at your home rather than at a marina is one of the attractions of the Blue Point Road homes.

There are also aesthetic features that make the neighborhood attractive to homeowners. To varying degrees, community residents have views of the channel, Seabrook Shipyard, and the nearby Kemah bridge. From their properties, they can watch local boat parades and "very busy" passing boat traffic entering and exiting the channel.

The Blue Point Road homeowners are bound by various community restrictions, including a restriction that home structures cannot be placed within five feet of the property lines or the waterline, but there are no community or city restrictions regarding the height of residents' boathouses. The view of the channel and other features is impacted by the size and design of neighboring boathouses. Many are close to 20 feet tall, and at least one is 25 feet tall.2 They have varying lengths to accommodate the boats being stored, and one boathouse is 81 feet long. Some boathouses have an open design, while others are enclosed. Without community restrictions, Blue Point Road residents do not have complete control over their water views. The size and type of boathouse their neighbors might choose to construct has the potential to diminish their water views.

The homes on Blue Point Drive run north-south. The channel is to the east of the homes. In 2011, Robert Gulledge and Diana Gulledge bought a home between the homes of Warren Wester and Theodore Sullivan. These homes, relative to one another, are shown on the diagram attached as Appendix I.

These residential lots are relatively narrow; most are 50 feet wide but Sullivan's is 70 feet wide. Like many of their neighbors, the Gulledges had a boathouse, which held a 40-foot boat. In 2015, they bought a larger, 55-foot Azimut yacht and decided to construct a larger boathouse to store it. Their design called for a 60-feet long and 20-feet wide boathouse with a height of 25 feet above mean tide. This height was necessary *812to provide sufficient clearance for the Azimut.3

The Gulledges submitted a construction application to the State's General Land Office. This was required because the community's boathouses are not located on private lands; they are located on land owned by the State of Texas. The General Land Office approves plans and grants a coastal easement that leases the State's submerged land for a boathouse location. The GLO reviews a proposed boathouse's footprint but not its height. Thus, the GLO reviews a boathouse's length into the channel for navigation purposes but does not review its aesthetic impact. As part of the permitting process, GLO notified the Gulledges' neighbors of the Gulledges' application and offered an opportunity to object.

Sullivan objected to the proposed boathouse's original location, asserting that it was too close to his property line and made access to his boathouse more difficult. After meeting with the GLO and Sullivan, the Gulledges agreed to move their proposed boathouse closer to the Wester property to the south and to knock down their existing boathouse, which was only two years old at the time. Sullivan agreed to withdraw his objection.

After they submitted their original construction plans, the Gulledges noticed that some other boathouses in Galveston County (but not in the immediate Blue Point Road area) had covered rooftop decks. Robert Gulledge testified that a deck on top of their boathouse would provide an area to socialize with family and friends and a clearer view of the boats coming down the channel. The Gulledges revised their plans to include a deck 25 feet above the water level, with an aluminum-covered roof at least 10 feet above the deck.4 The second story, like the first, would not be enclosed, but it would have a spiral staircase, side railings, "minimal" lighting, diagonal braces, and a small cargo lift without sides. The roof over the 1200-square-feet deck would be supported by piers, and the new height of the boathouse would be 39.5 feet instead of the original 25-feet height.

Wester and Sullivan objected to the redesign, asserting that the open-sided second story would block their view of the waterway. They testified that they had no objection to a boathouse that was comparable in height to their own-around 17 feet high-or even to the Gulledges' original 25-feet high design. The GLO informed Wester and Sullivan that it does not regulate boathouse height.5 The GLO approved the Gulledges' boathouse footprint and construction began.

After the Gulledges obtained the GLO's authorization and began the boathouse construction, Wester and Sullivan initiated the underlying suit, asserting claims for intentional private nuisance, negligent private nuisance, and invasion of privacy. Wester and Sullivan focused their suit on and limited their request for injunctive relief to the open-sided second story.

At trial, Wester and Sullivan each testified-and photographs confirm-that the second story deck allows its occupants to *813look down into their backyards. Additionally, Wester testified about some adverse health effects he attributed to the presence of the oversized boathouse, including higher blood pressure.

Wester and Sullivan testified that the Gulledges' boathouse was significantly larger than any other in the area.

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562 S.W.3d 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulledge-v-wester-texapp-2018.