Sunday, April 28, 2013

Luensmann v. Zimmer-Zampese & Associates, Inc. case brief

Luensmann v. Zimmer-Zampese & Associates, Inc. case brief summary
103 S.W.3d 594

CASE SYNOPSIS: Appellant owners challenged a decision from the 25th Judicial District Court, Guadalupe County (Texas), which entered judgment in favor of appellee racetrack, in an action alleging nuisance, nuisance per se, and trespass. The owners also challenged the denial of their request for injunctive relief.

FACTS: The racetrack constructed a facility near the owner's residence. On race nights, the owners complained of loud noises, bright lights, vibrations, and smoke. The owners then filed an action against the racetrack. After the trial court entered judgment in favor of the racetrack, the owners sought review.

The court affirmed, determining that the trial court did not err in excluding the disorderly conduct statute, Tex. Penal Code §42.01(c)(2).

The racetrack rebutted the presumption of unreasonableness in § 42.01(c)(2) by showing that the noise level at the owners' residence already exceeded 85 decibels. Moreover, the trial court properly granted a directed verdict in favor of the racetrack on the issue of nuisance per se. There was no evidence presented that the racetrack had been prosecuted for a violation of § 42.01(c)(2) or given notice of the noise level by a magistrate or peace officer. The jury's finding on trespass was supported by sufficient evidence, as there was testimony that smoke from the racetrack did not invade the owners' property. Finally, injunctive relief was properly denied, as there was no showing of irreparable harm.

CONCLUSION: The judgment of the trial court was affirmed.

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