GRSM Construction Team Prevails in Texas Court of Appeals on Behalf of Housing Developer Client

November 2023

Gordon Rees Scully Mansukhani Construction Partner Christopher Norcross and Senior Counsel Keith Robb prevailed in the Texas Eighth District Court of Appeals, affirming a motion to dismiss claims brought by homeowners regarding the construction of a new housing development.

The plaintiffs own a home on Lake McQueeney in Seguin, Texas. The land across the street from their home was recently sold to the co-defendant housing developer. In early 2022, the developer began to convert the land into a new neighborhood. The firm’s client performed the earth-moving work and began work to construct features to control stormwater. 

The plaintiffs filed suit seeking a temporary restraining order to halt construction activities and asserting causes of action in negligence, gross negligence, and private and public nuisance. They contended that dust from the earth-moving activities put them at risk of suffering from silicosis, that the finished project would flood their property with rainwater, and that they would suffer harm when residents of the development were allowed to drive on their street. 

The GRSM team argued that the plaintiffs had not suffered an injury and that they brought their lawsuit over potential future injuries. The trial judge held an evidentiary hearing. After the hearing, she denied the plaintiffs’ request for a temporary restraining order, and she dismissed their claims based on future flooding and traffic. The plaintiffs claimed that the earth-moving activities caused dust to travel from the new development to the plaintiffs’ property, and the trial judge gave the plaintiffs additional time to produce evidence that the dust caused damage. 

The plaintiffs did not produce any additional evidence, and the trial judge issued a final judgment dismissing all of the plaintiffs’ claims. The plaintiffs filed an appeal limited to their claims of negligence and nuisance for dust blowing onto their property. The Eighth District Court of Appeals affirmed the trial court’s decision because the plaintiffs failed to produce evidence of current injury. 

The court of appeals concluded that the plaintiffs' lawsuit did not present any issues ripe for review.