On March 10, 2023, the Supreme Court of Texas agreed to consider an appeal of an intermediate appellate court’s approval of a trial court’s injunction. The trial court ordered the supplier of chickens and the owners and operators of a chicken farm to shut down and not operate any chicken farm within five miles of the neighbors who brought the suit.
Temporary but Recurring Nuisance
At trial, the jury found the defendants had negligently and intentionally caused a private nuisance but that the injury was temporary because “future injury could not be estimated with reasonable certainty.” In separate findings, the trial judge determined the nuisance, while temporary, “was of a recurring nature.”
Closure Upheld by Appellate Court
The intermediate appellate court held that the trial judge could issue the injunction because the evidence showed the recurring nuisance will not stop unless enjoined. The appellate court noted the supplier had other options for processing chickens and the operator obtained governmental approvals for the operation by fraud. Despite the neighbors’ complaints, the supplier’s representatives testified they would not seek any changes in the operation.
Issues before the Supreme Court
The defendants (supported by a Texas Cattle Feeders’ friend of the court brief) argue that a temporary nuisance, which is “not reasonably predictable,” is inconsistent with a permanent injunction, which requires proof of “imminent harm.” The defendants also argue the neighbors chose not to present evidence of damages for temporary injury, thus surrendering any argument of lack of remedy through damages, another requirement for injunction. Further, the defendants urge “forced curtailment of a lawful business” should not issue when the injury is only temporary.
Oral argument has not yet been set. For access to the briefs https://search.txcourts.gov/Case.aspx?cn=21-0676&coa=cossup