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
consists of Chief Justice Frost and Justices Jewell and
FRANCES BOURLIOT JUSTICE
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.
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
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.
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.
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
trial Defendants introduced Defendants' Exhibit 106
during John Hightower's testimony, prompting the
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 16 and April of 16.
Q. Okay. And does that photo fairly and accurately show your
lights functioning on your property?
MR. MCLEMORE: Your Honor, I'd offer Defendants' 106.
MS. PONIG: No objection, Your Honor.
THE COURT: The Court will admit Defendants' Exhibit 106.
jury ultimately found that Defendants had not failed to
comply with the deed restrictions and did not intentionally
create a private nuisance.
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 ...