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COURT
OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-080-CV

MCAFEE
MX D/B/A MCAFEE MOTO CROSS
APPELLANTS

AND
MICHAEL MARK MCAFEE

V.

RICHARD
FOSTER, PHILLIP FITZGERALD,
APPELLEES

JAMES
AND SHERRI ESTRADA,

RAY
AND GABRIELLE FLETCHER,

STEVE
AND SANDY FAIRFIELD,

TIM
HITCHCOCK, AND HADEN COWDRY

------------

FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

------------

MEMORANDUM
OPINION[1]

------------

Appellants
McAfee MX d/b/a McAfee Moto Cross and Michael Mark McAfee (collectively,
AMcAfee@)
appeal from the trial court=s
final judgment and permanent injunction.  We affirm.

McAfee
operated a motocross course on his land near Gainesville, Texas.  The course consisted of two
tracksCone
for adults and one for childrenCand
ran four days a week from 9 a.m. or noon until dusk.  Richard Foster, Phillip
Fitzgerald, James and Sherri Estrada, Ray and Gabrielle Fletcher, Steve
and Sandy Fairfield, Tim Hitchcock, and Haden Cowdry (collectively,
Aappellees@)
are McAfee=s
neighbors, residing or working within 1100 feet of McAfee=s
property.  In 2006, appellees
sued to permanently enjoin McAfee from operating the motocross course,
claiming it was a nuisance due to the excessive noise and dust it
produced, among other problems.

The
trial court initially granted a temporary restraining order and later a
temporary injunction.
Following a two-day jury trial, the trial court rendered judgment
and issued a permanent injunction in favor of appellees.  McAfee
appeals.

In
his first and second points, McAfee challenges the legal and factual
sufficiency of the evidence to support the jury=s
finding that his operation of the motocross track substantially interfered
with appellees=
use and enjoyment of their land by causing unreasonable discomfort or
annoyance to persons of ordinary sensibilities.

We may
sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to prove a vital
fact is no more than a mere scintilla; or (4) the evidence establishes
conclusively the opposite of a vital fact.[2]  In determining whether there is
legally sufficient evidence to support the finding under review, we must
consider evidence favorable to the finding if a reasonable fact-finder
could and disregard evidence contrary to the finding unless a reasonable
fact-finder could not.[3]

An
assertion that the evidence is factually insufficient to support a fact
finding means that the evidence supporting the finding is so weak or the
evidence to the contrary is so overwhelming that the answer should be set
aside and a new trial ordered.[4]  We are required to consider all of
the evidence  in the case in
making this determination, not just the evidence that supports the
finding.[5]

A nuisance is a condition that
substantially interferes with the use and enjoyment of land by causing
unreasonable discomfort or annoyance to persons of ordinary
sensibilities.[6]  Foul odors, dust, noise, and
bright lights may constitute a nuisance if sufficiently extreme.[7]  The amount of annoyance or
inconvenience that must be produced to constitute a nuisance depends on
the varying facts of each case.[8]

At
trial, many of the appellees and two other neighbors who were not parties
to the lawsuit testified that McAfee=s
motocross tracks substantially interfered with the use and enjoyment of
their land.  Fitzgerald
described the sound from the tracks as thirty chainsaws in a
neighbor=s
backyard and stated that it was hard to carry on a conversation
outdoors.  Ray Fletcher
testified that the constant noise prohibited entertaining and reading
outside.  Hitchcock found
there was Ano
way@
to play sports outside with his family and that his horse required a
tranquilizer in order to be shoed while the tracks were in operation.  Foster also stated that his family
could not have an outdoor picnic Abecause
you couldn=t
speak to each other@
and that his horses would spook on part of his property.  Sherri Estrada claimed that the
noise from the tracks prevented her grandchildren from fishing and playing
outside.  Sandy Fairfield, who
owned a storage business across the street from the tracks, stated that it
was difficult to work there because of the constant noise, analogizing the
sound to a bunch of jack hammers.[9]  Several witnesses also discussed
odor and dust problems.      Further, Mike Fann, an
engineer specializing in noise and vibration control, opined that
appellees=
complaints were Aabsolutely
reasonable.@  Fann considered a 1977 EPA study
that concluded two- and four-stroke engines (the types used on
McAfee=s
tracks) would harm the community when the noise systemically exceeded
fifty-five decibels.  Fann
also referred to Texas Penal Code section 42.01, the disorderly conduct
statute, which creates a presumption that Aa
noise is . . . unreasonable if the noise exceeds a decibel level of 85
after the person making the noise receives notice from a magistrate or
peace officer that the noise is a public nuisance.@[10]  Fann concluded that twenty or more
motorcycles a day on the tracks would exceed the eighty-five decibel
benchmark Aon
a regular basis,@
and one of the loudest bikes would surpass eighty-five decibels even at a
distance of 1422 feet.[11]  Officer Toby Bean=s
testimony that he received a sound reading of ninety-six decibels from the
tracks corroborated Fann=s
conclusions, and the jury saw a DVD made by appellees showing sound
readings in the sixty and seventy decibel range.       McAfee testified
that he did not think motorcycles were loud, and another witness denied
having any difficulty carrying on a conversation while visiting the
tracks.  Further, McAfee
presented expert testimony that controverted appellees=
expert to some extent.[12]

In
sum, appellees presented testimony that McAfee=s
motocross activities substantially interfered with their use and enjoyment
of their land by causing unreasonable discomfort and annoyance to them,
and they offered expert testimony supporting this testimony.  Applying the appropriate standards
of review, we hold that the evidence was both legally and factually
sufficient to support the jury=s
nuisance finding.
Accordingly, we overrule McAfee=s
first and second points.

In his third point, McAfee argues
that the trial court erred in granting a permanent injunction because the
trial court=s
balancing of the equities was not supported by legally or factually
sufficient evidence.

Abatement
of a lawful business is a harsh remedy, and even when the jury finds that
a nuisance exists, the trial court should balance the equities in order to
determine if an injunction is appropriate.[13]  The trial court should consider
injury that may result to the defendant or the public by granting the
injunction as well as injury suffered by the plaintiffs if the injunction
is denied.[14]  Public convenience or necessity,
economic burden to the defendant, and the adequacy of a legal remedy may
affect this balance.[15]  An injunction against the nuisance
may issue where the injury to the defendant and the public is slight or
disproportionate to the injury suffered by the plaintiffs because of the
nuisance.[16]  We review the trial
court=s
decision whether to issue an injunction for an abuse of discretion.[17]

McAfee
claimed that the motocross course was his sole source of income.  He reported a business income loss
of $11,847.00 on his 2004 income tax return, however, and declared the
property Aagricultural.@[18]  Further, in the past McAfee
operated a fish business on the property without producing excessive
noise.

The
evidence showed that families came to McAfee=s
course and enjoyed the motocross sport together.  One witness stated that since
McAfee=s
tracks had been closed down, he had to drive approximately twenty-eight
miles farther each way to get to another motocross course.  The activity at the tracks,
however, was so loud that on four days each week appellees effectively
could not use the land outside of their homes.  Further, on at least three
occasions a CareFlite helicopter landed near the tracks to evacuate an
injured rider.

Considering
the competing interests, the trial court could have concluded that a
permanent injunction would cause only slight injury to McAfee and the
public or that such injury would be disproportionate to
appellees=
injuries because of the nuisance.
Applying the appropriate standards of review, we hold that the
evidence was legally and factually sufficient to support the trial
court=s
balancing of the equities and that the trial court did not abuse its
discretion in issuing the permanent injunction.[19]

McAfee
further contends under his third point that the permanent injunction is
overly broad and the trial court Ashould
have drawn the injunction so as to eliminate the sound that can emanate
from [McAfee=s]
property, rather than prohibit the activity in its entirety.@  Fann testified, however, that from
the distance at which appellees live, even one bike could exceed
eighty-five decibels.  Thus,
it would be impossible for the trial court to craft an injunction to
eliminate the excessive noise without prohibiting the activity.  Further, the injunction only
prohibits McAfee from Aoperating
a public or private motorcross [sic] facility@
on the property and specifically allows Avehicles
operated by immediate family members of [McAfee] who are residents on the
real property or those related to [McAfee] by first degree consanguinity
or affinity.@  We hold that the restrictions
placed on the motocross activity are reasonable, and the permanent
injunction is narrowly drawn and precise.[20]

For
all of these reasons, we overrule McAfee=s
third point.[21]

In
his fourth and fifth points, McAfee challenges the legal and factual
sufficiency of the evidence supporting the permanent injunction, arguing
that appellees had an adequate remedy at law and had not suffered an
irreparable injury.

Permanent
injunctive relief requires a showing of, among other elements, irreparable
injury and the absence of an adequate remedy at law.[22]  AIrreparable
injury@
occurs when the injury is of such a nature that the injured party cannot
be adequately compensated in damages, or the damages cannot be measured by
any certain pecuniary standard.[23]  A remedy is Aadequate,@
for purposes of determining entitlement to an injunction, when it is
complete, practical, and efficient to the prompt administration of
justice.[24]  The existence of a remedy at law
is not ground for denial of injunctive relief unless the legal remedy is
as practical and efficient to the ends of justice as the equitable
remedy.[25]

The
equitable remedy of injunctive relief is ordinarily available only when
the legal remedy of damages will not be adequate.[26]  When a nuisance is of a recurring
nature, however, the plaintiffs need not seek damages, and injunctive
relief may be appropriate.[27]  At trial, appellees sought only
injunctive relief.

Appellees
testified that the excessive noise from the track was a Aconstant@
on the four days each week when the track was in operation.  Further, appellees=
expert Fann testified that (1) no wall or other mechanism could feasibly
be installed to reduce the noise levels to an acceptable threshold; (2)
there was no way to assign a dollar value to the noise pollution, lack of
sleep, and difficulty conversing experienced by appellees; and (3) the
only way to discontinue the nuisance was to shut the motocross track
down.[28]   McAfee=s
expert Ware stated that sound dissipates over distance according to many
factors, and McAfee could implement measures to reduce the sound from the
tracks.

The
evidence showed that McAfee=s
tracks effectively precluded appellees=
use of their property and shutting down the tracks was the only feasible
solution.  The noise from the
tracks was recurring, and appellees did not seek money damages at
trial.  Further, the trial
court would not have abused its discretion in concluding that damages were
not Aas
practical and efficient@
as injunctive relief in this case.[29]  Applying the appropriate standards
of review, we hold that the evidence was legally and factually sufficient
to show that appellees had suffered an irreparable injury and had no
adequate remedy at law.[30]  We overrule McAfee=s
fourth and fifth points.

In
his sixth point, McAfee claims that the trial court abused its discretion
by refusing to submit his proposed jury question regarding the social
benefit of the motocross track.[31]

Although
a party to an equitable action has the right to a trial by jury, only
ultimate issues of fact are submitted for jury determination.[32]  The jury does not determine the
expediency, necessity, or propriety of equitable relief.[33]  The cases that McAfee cites do not
support his argument that social benefit is an ultimate issue of fact that
must be submitted to the jury.[34]  To the contrary, at least one
court of appeals has discussed Asocial
utility@
in the context of the trial court=s
balancing of the equities.[35]  McAfee has failed to show error[36];
therefore, we overrule his sixth point.

Having
overruled all of McAfee=s
points, we affirm the trial court=s
judgment.

PER
CURIAM

PANEL
A:  CAYCE, C.J.; LIVINGSTON
and MCCOY, JJ.

DELIVERED:  February 7, 2008

[1]See
Tex. R. App. P.
47.4.

[2]Uniroyal
Goodrich Tire Co. v. Martinez,
977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040
(1999); Robert W. Calvert, "No Evidence" and "Insufficient
Evidence" Points of Error, 38 TEX.
L. REV.
361, 362B63
(1960).

[3]City
of Keller v. Wilson,
168 S.W.3d 802, 807, 827 (Tex. 2005).

[4]Garza
v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).

[5]Mar.
Overseas Corp. v. Ellis,
971 S.W.2d 402, 406B07
(Tex.), cert. denied, 525 U.S. 1017
(1998).

[6]Schneider
Nat=l
Carriers, Inc. v. Bates,
147 S.W.3d 264, 269 (Tex. 2004).

[7]Id.

[8]Gulf
Oil Corp. v. Vestal,
231 S.W.2d 523, 525 (Tex. Civ. App.CFort
Worth 1950), aff=d,
149 Tex. 487, 235 S.W.2d 440 (1951).

[9]McAfee
contends that appellees=
subjective testimony was outlandish and exaggerated and that their
opinions were not Arationally
based@
as required by Texas Rule of Evidence 701.   McAfee, however, did not
object to the above testimony under Rule 701; thus, he has waived any
complaint that the testimony was inadmissible for that reason.  See Tex. R. App. P. 33.1(a);
Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on
reh=g).  Further, jurors are the sole judge
of the credibility of the witnesses and the weight to give their
testimony, and we must assume jurors decided all credibility questions in
favor of the verdict if reasonable people could do so.  City of Keller, 168 S.W.3d
at 819.  After reviewing the
record, we conclude that a jury could reasonably have found appellees
credible.

[10]See
Tex. Penal Code Ann.
'
42.01(a)(5), (c)(2) (Vernon 2003 & Supp.
2007).

[11]The
number of motorcycles on the track on any given day varied, but McAfee
claimed he did not allow more than forty riders on the track at a
time.  Officer Toby Bean
recalled seeing twenty or thirty motorcycles at the track when he was
there, and one weekend in August 2005 brought a total of 132 motorcycles
to the track.

[12]McAfee=s
expert Kevin Ware testified that when measuring sound, a time-weighted
average is more accurate than an instantaneous reading because sound
levels fluctuate, and noise ordinances are based on time-weighted
averages.  Ware surmised that
the measurements appellees recorded with their sound meter were
instantaneous readings.

[13]Storey
v. Cent. Hide & Rendering Co.,
148 Tex. 509, 514B15,
226 S.W.2d 615, 618B19
(1950); Lee v. Bowles, 397 S.W.2d 923, 926B27
(Tex. Civ. App.CSan
Antonio 1965, no writ); Fargason v. Econ. Furniture, Inc., 356
S.W.2d 212, 215 (Tex. Civ. App.CAustin
1962, writ ref=d
n.r.e.).

[14]Storey,
148 Tex. at 514B15,
226 S.W.2d at 618B19.

[15]See
Conner v. Smith,
433 S.W.2d 911, 914 (Tex. Civ. App.CCorpus
Christi 1968, no writ) (adequate remedy at law);  Schiller v. Raley, 405 S.W.2d
446, 447 (Tex. Civ. App.CWaco
1966, no writ) (public necessity); Hughes v. Jones, 94 S.W.2d 534,
536B37
(Tex. Civ. App.CEastland
1936, no writ) (economic harm to defendants).

[16]Storey,
148 Tex. at 515, 226 S.W.2d at 619.

[17]See
Vaughn v. Drennon,
202 S.W.3d 308, 313 (Tex. App.CTyler
2006, no pet.); Estancias Dallas Corp. v. Schultz, 500 S.W.2d 217,
221 (Tex. Civ. App.CBeaumont
1973, writ ref=d
n.r.e); Fargason, 356 S.W.2d at 215.

[18]McAfee
opened the tracks in January 2004 and started charging riders in March
2004.

[19]See
Estancias,
500 S.W.2d at 221 (holding that trial court did not abuse its discretion
in granting permanent injunction where noise prevented plaintiffs from
entertaining in their backyards and carrying on normal conversations in
their homes).

[20]See
Schneider, 147 S.W.3d at 287 (holding that permanent injunctions
must be Anarrowly
drawn and precise@);
Operation Rescue-Nat=l
v. Planned Parenthood of Houston and Se. Tex., Inc.,
975 S.W.2d 546, 560 (Tex. 1998)
(holding that trial court has Asome
latitude@
in fashioning the details of appropriate injunctive relief); Shields v.
State, 27 S.W.3d 267, 271 (Tex. App.CAustin
2000, no pet.) (holding that an injunction should be broad enough to
prevent a repetition of the evil sought to be
corrected).

[21]McAfee
also argues that appellees should not have been granted equitable relief
because they lacked clean hands.
James Appleton, an expert in forensic video and audio analysis,
testified in a bill of exception at the hearing on McAfee=s
motion for new trial that the audio on appellees=
DVD showing their sound readings had been altered.  McAfee, however, does not argue
that the trial court improperly denied his motion for new trial.  Thus, we do not address this
argument.  See Pat Baker
Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (holding that appellate
court cannot reverse a trial court=s
judgment on unassigned error).

[22]Triantaphyllis
v. Gamble,
93 S.W.3d 398, 401 (Tex. App.CHouston
[14th Dist.] 2002, pet. denied).

[23]Montfort
v. Trek Res., Inc.,
198 S.W.3d 344, 353 (Tex. App.CEastland
2006, no pet.); Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853,
857 (Tex. App.CFort
Worth 2003, no pet.).

[24]Matagorda
County Hosp. Dist. v. City of Palacios,
47 S.W.3d 96, 103 (Tex. App.CCorpus
Christi 2001, no pet.).

[25]Khaledi
v. H.K. Global Trading, Ltd.,
126 S.W.3d 273, 284 (Tex. App.CSan
Antonio 2003, no pet.); Irving Bank & Trust Co. v. Second Land
Corp., 544 S.W.2d 684, 688 (Tex. Civ. App.CDallas
1976, writ ref=d
n.r.e.).

[26]Holubec
v. Brandenberger,
58 S.W.3d 201, 210 (Tex. App.CAustin
2001), rev=d
on other grounds,
111 S.W.3d 32 (Tex. 2003).

[27]Holubec
v. Brandenberger,
214 S.W.3d 650, 656 (Tex. App.CAustin
2006, no pet.) (holding that injunctive relief was appropriate because
nuisance was of a recurring nature); Hill v. Villarreal, 362 S.W.2d
348, 349 (Tex. Civ. App.CWaco
1962, writ ref=d
n.r.e.); Landwer v. Fuller, 187 S.W.2d 670, 673 (Tex. Civ.
App.CAmarillo
1945, writ ref=d
w.o.m.).

[28]McAfee
contends that appellees=
injuries are compensable through damages, citing appellee Richard
Foster=s
testimonyCcontained
in a bill of exception made during a temporary injunction
hearingCthat
his property declined in value by over $150,000.00 because of the
motocross track.  The trial
court, however, sustained appellees=
objection to this testimony, and McAfee does not argue that it was
improperly excluded.
Therefore, we do not consider this argument.  See Pat Baker Co.,
971 S.W.2d at 450; Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex.
App.CHouston
[14th Dist.] 2000, pet. denied) (holding that a party=s
remedy for an adverse ruling is to assign error regarding the adverse
ruling).

[29]Khaledi,
126 S.W.3d at 284; Irving Bank & Trust Co., 544 S.W.2d at
688.

[30]Cf.
Storey,
148 Tex. at 512B13,
226 S.W.2d at 617B18
(holding that plaintiffs had adequate remedy at law where rendering
plant=s
inconvenience and odors occurred only occasionally, surrounding land had
sold for increased value since plant was built, and plant owner was
Acarrying
out the latest and best recognized scientific practices to keep down odors
and flies@).

[31]The
proposed question stated, ADo
you find from a preponderance of the evidence that the operation of the
McAfee MX motor [sic] has no beneficial social impact?@

[32]State
v. Tex. Pet Foods, Inc.,
591 S.W.2d 800, 803 (Tex. 1979); Doll v. Hurst, No. 03‑02‑00576‑CV,
2003 WL 21939711, at *8 (Tex. App.CAustin
Aug. 14, 2003, pet. denied) (mem. op.).

[33]Tex.
Pet Foods, Inc.,
591 S.W.2d at 803.

[34]See
Elbaor v. Smith,
845 S.W.2d 240, 243B44
(Tex. 1992) (holding that contributory negligence question should have
been submitted to jury); Tex. Pet Foods, Inc., 591 S.W.2d at
803B05
(holding that the probability of defendant=s
continued action, relevant to issuance of permanent injunction, was a
question for the trial court rather than the jury); Shields, 27
S.W.3d at 273 (AThe
principle that the court rather than the jury exercises equitable powers
answers [appellant=s]
complaint that the court could not include these prohibitions in the order
without submitting specific jury questions thereon.@);
Lehmann v. Wieghat, 917 S.W.2d 379, 382 (Tex. App.CHouston
[14th Dist.] 1996, writ denied) (holding that a controlling issue is one
which requires a factual determination to render judgment in the case).

[35]See
Speedman Oil Co. v. Duval County Ranch Co.,
504 S.W.2d 923, 930B31
(Tex. Civ. App.CSan
Antonio 1974, writ ref=d
n.r.e.).

[36]See
Jackson v. U.S. Fid. & Guar. Co.,
689 S.W.2d 408, 412 (Tex. 1985) (holding that an appellant has the burden
to show that the judgment of the trial court was
erroneous).