PJC General Negligence 2022

N UISANCE

PJC 12.5

S.W.3d at 288–89. Past and future damages may be separated with only past damages recoverable for a nuisance if there is abatement. Schneider National Carriers, Inc. , 147 S.W.3d at 289. When a plaintiff seeks a temporary injunction, a trial court may make the determination whether to abate the nuisance before a jury finds it exists. Schneider National Carriers, Inc. , 147 S.W.3d at 289–90. However, if the jury deter mines that no nuisance has occurred, a trial court does not maintain discretion to issue a permanent injunction based on nuisance. See Hanson Aggregates West, Inc. v. Ford , 338 S.W.3d 39, 45–48 (Tex. App.—Austin 2011, pet. denied). Determination of permanent vs. temporary injury. Similar to determining whether a nuisance is permanent or temporary, the court also determines if an injury to real property is permanent or temporary. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P. , 449 S.W.3d 474, 480–81 (Tex. 2014). For specific questions regarding a permanent injury to real property versus a temporary injury to real property, practi tioners may use the instructions found in chapter 11, “Trespass,” in this volume. Property with sentimental value. For a discussion of recovery of sentimental damages in the context of personal property, see Likes , 962 S.W.2d at 497. Economic feasibility exception/failure to prove reasonableness of cost of repairs. If the claimant fails to prove the cost to repair is reasonable and necessary, or if the repairs are not economically feasible, the injury may be deemed permanent as a matter of law and the claimant limited to the diminution in fair market value. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (refusing to permit cost of repair because it was “disproportionately” larger than essentially nominal loss of market value); see also McGinty v. Hennen , 372 S.W.3d 625, 629 (Tex. 2012) (per curiam) (extensively discussing whether evidence on difference in home’s value was sufficient after finding that evidence on cost to repair was not; no discussion that plaintiff would be legally limited to one or the other). As of yet, there is no guidance from the courts on what level of discrepancy between the two damages measures will trigger a mandatory selection of the lesser measure. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481; Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004). For possible con trary authority, see Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co. , 747 S.W.2d 785 (Tex. 1988) (DTPA case for real property damage; court stated that party has right to judgment on theory entitling him to most favorable relief). As a result of the possible application of the economic feasibility exception, a claimant may wish to submit evidence on both measures of damages to ensure a recovery. Another effect of the economic feasibility exception is that a defendant may wish to submit evidence on what it believes is a lesser measure of damages in an effort to trig ger the exception. See Hall v. Hubco , 292 S.W.3d 22 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (plaintiff not required to prove both measures; burden of proof is on defendant to prove that one would be lesser; court affirmed award of loss

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