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In re Hightower

Court of Appeals of Texas, Fourteenth District

April 23, 2019

IN RE JOHN HIGHTOWER, JR. AND JESSICA HIGHTOWER, Relators

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 335th District Court Washington County, Texas Trial Court Cause No. 36193

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot

          MAJORITY OPINION

          FRANCES BOURLIOT JUSTICE

         On January 15, 2019, relators John Hightower, Jr. and Jessica Hightower filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable Carson Campbell, presiding judge of the 335th District Court of Washington County, to withdraw the court's order granting a mistrial and enter a take-nothing judgment in relators' favor. Finding no abuse of discretion, we deny relators' petition for writ of mandamus.

         I. Background

         Several residents of the Sacred Heart subdivision in Brenham (Plaintiffs and real-parties-in-interest) sued relators (Defendants), also Sacred Heart residents, seeking permanent injunctive relief for alleged violations of deed restrictions based on Defendants' operation of a lighted horse arena at night.

         A. Pretrial

         On April 24, 2017, the trial court signed a temporary restraining order (TRO) in which the court ordered Defendants to refrain from (1) using or operating the arena lights installed on their property at any time of the day or night; (2) using or operating any substitute form of lighting for the arena lights on their property at any time of the day or night; and (3) using or operating the horse arena on their property for any purpose.

         On July 6, 2017, the trial court signed an amended order granting a temporary injunction. The temporary injunction continued the light usage restrictions put in place by the TRO. At a temporary injunction hearing Defendants' attorney informed the court that he had conducted a light test with directional shades intended to remediate the alleged nuisance. The lights were turned on at night for the test in violation of the temporary injunction. Photographs of the lighted horse arena were taken showing the lighting with shades installed to remediate the glare. When Defendants attempted to introduce photos of the light test results into evidence at the hearing Plaintiffs objected, and the trial court excluded the proffered photos.

         Before trial Plaintiffs filed a motion in limine and motion to exclude, requesting an order barring testimony, comment, argument, or proffer of evidence of "solutions, alternatives, or fixes-that somehow would alter the nature of the lights at issue in the case[.]" The trial court granted the motion in limine stating that the relevant issue was the condition of the lights at the time suit was filed, not a later condition based on remediation. In a written order granting in part Plaintiffs' motion to exclude and the motion in limine, the trial court specifically excluded:

Any testimony, comment, argument or proffer of alleged evidence regarding alleged solutions, alternatives or fixes that somehow would alter the nature of the lights at issue in the case or otherwise cause them not to be in violation of the deed restrictions at issue or not be a private nuisance, are barred and excluded. By way of example, this order applies to bar any evidence of alleged technical fixes that could somehow resolve any issues with the lights, if any, including glare shields, blinders, alternative wattages, alternative equipment, or other adjustments, evidence of any alleged testing of the lights under such conditions, or opinions of the impact of same if they were to be implemented.[1]

         B. Trial

         At trial Defendants introduced Defendants' Exhibit 106 during John Hightower's testimony, prompting the following exchange:

Q. Okay. What does that photo show?
A [Hightower]. That's a picture of my arena with the lights on from my driveway.
MR. MCLEMORE [Defendants' attorney]: Your Honor, I'd offer Defendants' 106.
MS. PONIG [Plaintiffs' attorney]: Your Honor, if we could have some information on when the photo was taken.
THE COURT: Okay.
Q. (By Mr. McLemore) Do you know when that photo was taken?
A. Between February of [20]16 and April of [20]16.
Q. Okay. And does that photo fairly and accurately show your lights functioning on your property?
A. Yes.
MR. MCLEMORE: Your Honor, I'd offer Defendants' 106.
MS. PONIG: No objection, Your Honor.
THE COURT: The Court will admit Defendants' Exhibit 106.

         The jury ultimately found that Defendants had not failed to comply with the deed restrictions and did not intentionally create a private nuisance.

         C. Post-trial

         Following the jury's verdict, and before the trial court rendered judgment, Plaintiffs filed a "Motion for Declaration of Mistrial, Post-Trial Striking of Defendants' Answer, and Entry of Final Judgment in the Form of Permanent Injunction and Award of Attorney's Fees or, in the Alternative, Motion for Declaration of Mistrial and New Trial; Response in Opposition to Defendants' Motion for Entry of Judgment." In their motion Plaintiffs alleged that Hightower misrepresented the time the photo, Defendants' Exhibit 106, was taken and that Exhibit 106 was one of the photos taken on May 4, 2017, in violation of the temporary injunction. In the motion Plaintiffs further alleged that Defendants violated the trial court's exclusionary order and order in limine during closing argument by referring to remedial measures that could be taken. Attached to Plaintiffs' motion were several exhibits, including photos that Defendants attempted to introduce at the temporary injunction hearing but were not allowed to introduce because the photos were taken in violation of the TRO. The crux of Plaintiffs' argument revolved around whether the photo introduced at trial (Exhibit 106) was actually one of the photos that was taken in violation of the TRO. In substance, the Plaintiffs contended that Exhibit 106 was in fact taken in violation of the TRO; that it was covered by the court's pre-trial exclusionary order; that, in response to Plaintiffs' counsel's question, Hightower misrepresented the date the photo ...


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