## Facts

- FPL developed and operated the Horse Hollow Wind Farm in Taylor County, Texas, using large wind turbines visible from neighboring rural properties.
- Nearby landowners and a corporation sued FPL asserting public and private nuisance and seeking injunctive relief.
- Plaintiffs alleged the wind farm substantially interfered with use and enjoyment of their land, emphasizing loss of scenic views and rural character, and also alleging effects such as light, noise, and vibrations.
- FPL sought partial summary judgment to bar nuisance claims to the extent based on the project’s aesthetic/visual impact.
- The trial court granted partial summary judgment dismissing nuisance claims based on visual impact.
- The remaining private nuisance claim went to a jury; the charge instructed jurors not to consider aesthetics.
- The jury found for FPL, and the trial court entered a take-nothing judgment.
- The trial court did not tax all costs against plaintiffs; FPL challenged that ruling.

## Issues

1. Whether Texas nuisance law permits public or private nuisance liability based solely on a lawful wind farm’s aesthetic/visual impact and plaintiffs’ emotional reaction to altered views.
2. Whether the trial court abused its discretion by excluding plaintiffs’ rebuttal fact witnesses and rebuttal expert testimony for untimely or inadequate disclosure, and whether any error was harmful.
3. Whether the trial court had “good cause” to deviate from the general rule that the prevailing party recovers taxable costs, and whether inability to pay can justify denying costs.

## Decision

- Affirmed the partial summary judgment barring nuisance claims predicated on aesthetic/visual impact.
- Affirmed the take-nothing judgment and upheld exclusion of plaintiffs’ rebuttal fact and expert witnesses.
- Reversed the costs ruling and remanded for reconsideration and a proper on-the-record basis for any departure from the default costs rule.

## Legal Principles

- A nuisance claim generally requires an actionable interference with use and enjoyment that involves an invasion or effect on the plaintiff’s property (commonly through agents such as noise, light, odor, or similar intrusions), not mere displeasure with a lawful activity’s appearance.
- Emotional reaction to a changed view, without a recognized type of invasion or interference, does not create nuisance liability under Texas law for an otherwise lawful operation.
- Trial courts may exclude undisclosed or untimely disclosed witnesses under discovery rules; to obtain reversal, an appellant must also show harmful error, and cumulative rebuttal evidence may be deemed harmless.
- Under Texas Rule of Civil Procedure 131, the prevailing party is entitled to recover taxable costs absent a stated “good cause” for a different allocation; inability to pay, standing alone, is not a proper basis to deny costs.

## Conclusion

The court held that a wind farm’s visual impact, by itself, cannot support nuisance liability, upheld discovery-based exclusions and the defense verdict on remaining nuisance theories, and remanded only for the trial court to reassess taxable costs under the governing rule and stated good-cause standard.


Rankin v. FPL Energy, LLC, 266 S.W.3d 506 (Tex. App.—Eastland 2008, pet. denied)