NO. 12-20-00198-CV
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`IN THE COURT OF APPEALS
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`TWELFTH COURT OF APPEALS DISTRICT
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`TYLER, TEXAS
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`STEVE HUYNH, INDIVIDUALLY,
`YVONNE HUYNH, INDIVIDUALLY
`HUYNH POULTRY FARM, LLC D/B/A
`STEVE THI HUYNH POULTRY FARM
`D/B/A HUYNH POULTRY FARM, T &
`N POULTRY FARM, LLC, THINH
`BAO NGUYEN, INDIVIDUALLY,
`TIMMY HUYNH POULTRY FARM,
`TIMMY HUYNH, INDIVIDUALLY
`AND SANDERSON FARMS, INC.,
`APPELLANTS
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`V.
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`FRANK BLANCHARD, ET AL AND
`RONNY SNOW, ET AL,
`APPELLEES
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`MEMORANDUM OPINION
`Steve Huynh, Individually, Yvonne Huynh, Individually, Huynh Poultry Farm, LLC
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`d/b/a Steve Thi Huynh Poultry Farm d/b/a Huynh Poultry Farm, T & N Poultry Farm, LLC,
`Thinh Bao Nguyen, Individually, Timmy Huynh Poultry Farm, Timmy Huynh, Individually and
`Sanderson Farms, Inc. (collectively Appellants) appeal the trial court’s issuance of a permanent
`injunction prohibiting them from operating a chicken farm. They present three issues on appeal.
`We affirm.
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`BACKGROUND
`Frank Blanchard, Mersini Blanchard, Malakoff Properties, LLC, Ronny Snow, Angelia
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`Snow, Tanya Berry, Kimberly Riley, John Miller, Amy Miller, Chad Martinez, and Emily
`Martinez (collectively Appellees) each own property in the Malakoff area of Henderson County,
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`APPEAL FROM THE 392ND
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`JUDICIAL DISTRICT COURT
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`HENDERSON COUNTY, TEXAS
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`Texas. Prior to 2016, they all enjoyed living in the country and the outdoor areas of their
`properties.
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`In 2015, Steve Huynh purchased 231.12 acres of land in Malakoff, with the intent of
`using the land as a chicken farm for Sanderson. Steve had owned and operated chicken barns for
`Sanderson since 2002. Previously, Steve owned or controlled the farm, but a different family
`member applied for and received government subsidies for the operation, which also occurred in
`this case. Sanderson approved Steve’s son, Timmy Huynh, as a grower, even though he was a
`college student in California and had no prior experience. Steve completed the paperwork and
`signed Timmy’s name. Sanderson also approved Thinh Nguyen, another relative, as a grower.
`Sanderson approved Steve’s property as a barn site even though it knew a nuisance was likely.
`Steve then entered into “leases” with both Nguyen and Timmy so they could operate the chicken
`barns on the property. Timmy never paid rent and Nguyen never paid rent in his individual
`capacity.
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`Shortly after the chicken barns began operations, Appellees noticed a pungent odor
`emanating from the barns. Appellees claim the smell from the chicken barns prevents them from
`enjoying their properties and the outdoors. They complained numerous times to the Texas
`Commission on Environmental Quality (TCEQ). The TCEQ investigated the complaints and
`issued notices of violation (NOVs) to Steve, Yvonne Huynh, Huynh Poultry Farm, LLC, and
`T&N Poultry Farm, LLC.
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`When the odor failed to dissipate even after the TCEQ’s involvement, Appellees filed
`suit. Two different suits were filed—one by the Blanchard group and one by the Snow group—
`that were consolidated. The Blanchard group claimed fraud, nuisance, trespass, and intentional
`interference with property rights. The Snow group asserted claims for nuisance and trespass.
`Both sets of Appellees sought monetary damages for diminution in property value and
`permanent injunctions. At the conclusion of trial, the jury found Appellants caused a temporary
`nuisance and attempted to award monetary damages for diminution of market value. Appellants
`moved for entry of a take nothing judgment or a judgment notwithstanding the verdict.
`Appellees moved for entry of a permanent injunction. Following a hearing, the trial court
`entered a judgment that Appellees be awarded no monetary damages but granting a permanent
`injunction. This appeal followed.
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`SUFFICIENCY OF THE EVIDENCE
`In their second issue, Appellants contend the evidence is legally insufficient to support a
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`nuisance finding. Specifically, Appellants urge the evidence is insufficient to support a finding
`of causation and interference rising to the level of a nuisance.
`Standard of Review
`When reviewing a finding of fact for legal sufficiency, we may set aside that finding of
`fact only if the evidence at trial would not enable a reasonable and fair-minded fact finder to
`make the finding. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making
`this determination, we must credit favorable evidence if a reasonable fact finder could, and
`disregard contrary evidence unless a reasonable fact finder could not. See id. The fact finder is
`the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony.
`See id. at 819. The fact finder is free to believe one witness and disbelieve another, and
`reviewing courts may not impose their own opinions to the contrary. See id. Further, a fact
`finder “may disregard even uncontradicted and unimpeached testimony from disinterested
`witnesses” where reasonable. See id. at 819–20. Accordingly, we must assume that the fact
`finder chose what testimony to disregard in a way that favors the verdict. See id. at 820.
`Moreover, where conflicting inferences can be drawn from the evidence, it is within the province
`of the fact finder to choose which inference to draw, so long as more than one inference can
`reasonably be drawn. See id. Therefore, we must assume the fact finder made all inferences in
`favor of the verdict, if a reasonable person could do so. See id.
`Governing Law
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`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.
`Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). Courts have divided
`actionable nuisance into three classifications: (1) negligent invasion of another’s interest; (2)
`intentional invasion of another’s interest; or (3) other conduct, culpable because abnormal and
`out of place in its surroundings, that invades another’s interests. See City of Tyler v. Likes, 962
`S.W.2d 489, 503 (Tex. 1997). Foul odors, if sufficiently extreme, may constitute a nuisance. See
`Schneider, 147 S.W.3d at 269; see also Kane v. Cameron Int’l Corp., 331 S.W.3d 145, 148
`(Tex. App.—Houston [14th Dist.] 2011, no pet.) (nuisance may arise when person’s senses are
`physically assaulted).
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`Expert testimony is not required to prove causation “when a layperson’s general
`experience and common understanding would enable the layperson to determine from the
`evidence, with reasonable probability, the causal relationship between the event and the
`condition.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006). When a nuisance
`involves subjective criteria such as sound or smell, the analysis is fact dependent. Nat. Gas
`Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012). “The point at which an odor
`moves from unpleasant to insufferable . . . might be difficult to ascertain, but the practical
`judgment of an intelligent jury is equal to the task.” Id.
`Analysis
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`Appellants urge there is no evidence of substantial interference with Appellees’ use and
`enjoyment of their properties, and no evidence of objectively unreasonable discomfort or
`annoyance. Appellants also posit that the evidence does not show that they caused the alleged
`harm.
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`Appellants purchased the land in 2015 and Sanderson approved them as chicken growers.
`Appellants set up two LLCs for two farms on the same property, which allowed them to have
`sixteen barns on the property and grow 444,800 birds per flock, twice the number of birds “likely
`to cause a persistent nuisance odor” under the TCEQ guidelines. The two farms were a mere 300
`feet apart.
`Sanderson placed its first flock of chickens in eight barns in June 2016. All sixteen barns
`began operating in November 2016. The evidence showed that, for each cycle, Sanderson
`hatched a flock of chicks and delivered them to the barns. The chickens would then grow over
`approximately sixty days into broilers. The chickens were then caught and transported to
`Sanderson’s Palestine plant for processing. A new flock was delivered one or two weeks later
`and the cycle repeated. Sanderson placed 27,800 chicks in each of the sixteen barns at a time.
`The evidence showed that the chickens produced approximately ten million pounds, or
`five thousand tons, of manure each year. Furthermore, the flocks each had approximately a five
`percent mortality rate. The dead chickens were carried to composting sheds where they were
`placed in layers and covered by wet litter saturated with manure. Sanderson’s division manager
`testified via deposition that dead chickens, like most dead animals, have a rotting odor. Dr.
`Albert Heber, an agricultural engineer, and Appellants’ expert, testified that chicken manure is
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`“offensive” and “smells bad.” The manure generated ammonia and hydrogen sulfide, both of
`which have strong odors.
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`On October 11, 2016, Ronny Snow called Sanderson’s Palestine production office and
`complained about the smell emitted by the chicken barns. On October 18, a TCEQ investigator
`documented nuisance odors and determined that the “chicken houses” were the source. The
`report stated, “this is a violation of 30 Texas Administrative Code § 101.4,” which prohibits the
`discharge of air contaminants in concentration and duration that it interferes with the normal use
`and enjoyment of property. It also cited to Section 382.085(b) of the Texas Health and Safety
`Code.1 As a result, the investigator issued a NOV that recommended “Mr. Huynh shall submit a
`plan and/or documentation necessary to address the outstanding violation to prevent recurrence
`of same or similar incidents.” Another TCEQ investigation was conducted on February 20,
`2017, and the investigator concluded that a violation occurred. As a result, another NOV was
`issued. In June 2017, another TCEQ investigation documented “a chicken waste odor classified
`as offensive,” and another NOV was issued. TCEQ documented sixty-two odor complaints
`before June 27, 2017. And TCEQ investigators found five violations; however, two violations
`were not issued NOVs. And in August 2019, TCEQ responded to yet another complaint and the
`investigator again found a violation. NOVs were issued for both farms.
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`In January 2017, Frank Blanchard spoke with Sanderson’s division manager, Randall
`Boehme, about the barns. Boehme explained to Blanchard how the chicken barns operated and
`recommended that he keep his family indoors while the birds were caught for the “health and
`safety of [his] family.” According to Blanchard, Boehme understood that the chicken farms
`created offensive odors and that “there was no way they could prevent the odors from coming
`onto [his] property.”
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` Appellees recorded hundreds of odor events on their properties in odor logs, which were
`admitted into evidence at trial. The logs included dates, duration, and characteristics of the odors
`invading their properties. Appellees testified the risk of exposure to the odors continuously
`prevented them from planning and enjoying outdoor activities. They testified that the odors
`could appear at any moment, which would force them to abandon any outdoor activity and
`remain inside. However, the odors were intermittent because variations, such as weather
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`1 Prohibits persons from causing, suffering, allowing, or permitting the emission of air contaminants. TEX.
`HEALTH & SAFETY CODE ANN. § 382.085(b) (West 2016).
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`conditions and Appellants’ actions, impacted the duration and extent of the odors impeding
`Appellees’ use and enjoyment of their properties.
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`Each Appellee owned their respective property before the chicken farms were built. The
`evidence at trial showed that, prior to the chicken farms, each Appellee enjoyed their respective
`properties. Mersini Blanchard, for example, enjoyed morning walks and the “beautiful smell” of
`the country. Ronny Snow and his family routinely hosted outdoor family gatherings and enjoyed
`the outdoors. Tanya Berry enjoyed being outside, caring for her horses, and horse riding with
`her friends. John Miller and his family also hosted frequent outdoor family events. Emily
`Martinez’s family enjoyed playing outside and routinely hosted larger outdoor gatherings. Kim
`Riley and her husband regularly entertained friends outdoors. However, after the chicken barns
`were built, the odors prevented Appellees from enjoying these outdoor activities.
`Frank Blanchard testified that he first smelled the offensive odors when visiting his ranch
`in August or September 2016. His mother told him that she and the neighbors had smelled the
`odors, which were from the chicken barns and regularly smelled like “roadkill.” Mersini
`Blanchard testified it smelled like “chicken poop and dead animals all together.” Mersini
`testified that the smell made her gag and “sick in [her] stomach” on several occasions. The
`Blanchards ceased hosting family Christmases at the ranch due to the odors. Frank could not
`bring his children to the ranch because he was afraid the odors would harm them.
`The record reflects that David Blanchard testified via video deposition; however, the
`court reporter did not transcribe his testimony. The transcript of the deposition is not in the
`record and has not been provided to this Court. A copy of Appellants’ request for the reporter’s
`record is included in the clerk’s record. The request is for the entire reporter’s record and
`contains no designation of points for the appeal.2 Therefore, we must presume the omitted parts
`of the record are relevant to the disposition of this appeal. Richards v. Schion, 969 S.W.2d 131,
`133 (Tex. App.—Houston [1st Dist.] 1998, no pet.); City of Palestine v. LS Equip. Co., Inc., No.
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`2 In Bennet v. Cochran, the Texas Supreme Court held that an appellant who filed its points or issues in a
`separate document from its request for a reporter’s record, and approximately two months late, did not waive its
`right to appeal the legal sufficiency of the evidence supporting the jury’s verdict. 96 S.W.3d 227, 229 (Tex. 2002).
`The Court reasoned that a more flexible approach was warranted because the appellee did not claim he was
`prejudiced by the delay and was afforded ample time to respond to the appellant’s points or issues and designate
`additional portions of the record. Id. However, the Court also reaffirmed that an appellant’s complete failure to file
`a compliant issue statement, as has happened in this case, requires the appellate court to presume the record’s
`omitted portions support the trial court’s judgment. Id.
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`12-19-00264-CV, 2020 WL 5047905, at *8 (Tex. App.—Tyler Aug. 26, 2020, no pet.) (mem.
`op.).
` Here, the testimonies from Appellees describe the odors from the chicken barns that
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`caused them discomfort and disrupted the use and enjoyment of their properties. We rely upon
`the trial court to determine whether each of these individuals is “a person of ordinary
`sensibilities.” See Pool v. River Bend Ranch, LLC, 346 S.W.3d 853, 858 (Tex. App.—Tyler
`2011, pet. denied). Appellees testified that the odors did not exist before Appellants began
`operating the chicken barns, the odors entered their properties from the chicken barns, and the
`odors did not stem from any other agricultural activity. Based upon our review of their
`testimonies, along with evidence of the NOVs, we conclude that this evidence supports the
`existence of odor levels caused by the chicken barns that were sufficiently extreme to constitute
`a nuisance. See Schneider, 147 S.W.3d at 269. Therefore, we hold that the evidence is legally
`sufficient to establish that the chicken farms created a nuisance that interfered with Appellees’
`use and enjoyment of their respective properties. Appellants’ second issue is overruled.
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`PERMANENT INJUNCTION
`In their first issue, Appellants contend the trial court abused its discretion by entering a
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`permanent injunction because Appellees have an adequate remedy at law and lack imminent
`harm.
`Standard of Review and Applicable Law
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`We review the trial court’s grant of a permanent injunction for an abuse of discretion.
`See Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d
`546. 560 (Tex. 1998). To be entitled to a permanent injunction, a party must prove (1) a
`wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate
`remedy at law. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 792 (Tex. 2020); Cypress
`Creek EMS v. Dolcefino, 548 S.W.3d 673, 690 (Tex. App.—Houston [1st Dist.] 2018, pet.
`denied).
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`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 attempting
`to use and enjoy it. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 601 (Tex.
`2016). A nuisance is temporary if it is so irregular or intermittent over the period up to filing and
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`trial that future injury cannot be estimated with reasonable certainty. Schneider, 147 S.W.3d at
`281. A permanent nuisance is sufficiently constant or regular that future impact can be
`reasonably evaluated. Id.
`Categorizing a nuisance as temporary or permanent is a question for the jury. Id. at 286.
`But abatement is a discretionary decision for the judge after the case has been tried and the jury
`discharged. Id. One is only partly dependent on the other: while judges cannot permanently
`abate a nuisance until jurors decide there is one, a trial judge may decide to abate a nuisance
`whether it is temporary or permanent and may choose not to abate either even if that is the only
`remedy requested. Id. at 286-87.
`Analysis
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`Appellants contend that the trial court abused its discretion by entering a permanent
`injunction because Appellees possess an adequate remedy at law, in that they could have
`recovered monetary damages for lost use and enjoyment. In support of their position, Appellants
`rely on the Texas Supreme Court’s decision in Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763
`(Tex. 2020).
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`Appellants’ reliance on Pike is misplaced. While Pike did hold that a permanent
`injunction was inappropriate because the plaintiff could have sought to value its lost profits, Pike
`involved misappropriation of trade secrets. Id. at 793. It was not a nuisance case and, as such,
`the Texas Supreme Court did not consider the special nature of nuisances.
`Under the general rule, the equitable remedy of injunctive relief is ordinarily available
`only when the legal remedy of damages will not be adequate. Holubec v. Brandenberger, 214
`S.W.3d 650, 656 (Tex. App.—Austin 2006, no pet.). However, when the nuisance complained
`of is of a “recurring nature,” an injunction “will lie irrespective of [a] legal remedy at law.” Id.
`(citing Lamb v. Kinslow, 256 S.W.2d 903, 905 (Tex. Civ. App.—Waco 1953, writ ref’d n.r.e.)).
`Monetary damages are not always an adequate remedy in situations where the nuisance is of a
`recurring nature because damages could be recovered only as of the time of the bringing of the
`action, and a multiplicity of suits would be necessary. Holubec, 214 S.W.3d at 656. A party
`suffers irreparable injury and has no adequate legal remedy if a nuisance is of a recurring nature.
`Hall v. Seal, No. 04-09-00675-CV, 2011 WL 61631, at *3 (Tex. App.—San Antonio Jan. 5,
`2011, pet. denied) (mem. op.) (citing Holubec, 214 S.W.3d at 656). A nuisance is of a recurring
`nature if the evidence shows that the author of the nuisance will not cease the nuisance without a
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`court order. Id. Whether a nuisance is of a recurring nature is a question for the trial court. See
`Hot Rod Hill Motor Park v. Triolo, 276 S.W.3d 565, 575 (Tex. App.—Waco 2008, no pet.).
`Regarding the recurring nature of the nuisance, the trial court made the following
`findings:
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`19. Plaintiffs have established an irreparable injury. Defendants have operated and/or allowed to
`be operated, and intend to continue to allow to be operated, the Activities on Defendants’
`Properties in a manner that has caused and continues to cause, inter alia, odor pollution to intrude
`on, near, and/or over Plaintiffs’ Properties so as to cause a substantial and unreasonable
`interference with the use and enjoyment of Plaintiffs’ Properties and create a nuisance.
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`20. There is no adequate remedy at law to grant complete, final, and equal relief to Plaintiffs.
`Defendants are unwilling and unable to abate the odor pollution that emanates from the operation
`of Defendants’ Properties. The odor pollution from the Activities on Defendants’ Properties
`invades Plaintiffs’ Properties so as to create a substantial and unreasonable interference with the
`use and enjoyment of Plaintiffs’ Properties. The odor pollution from the Activities on Defendants’
`Properties is excessive to an unreasonable degree and constitutes a nuisance. The TCEQ found on
`multiple occasions that Defendants’ Activities were in violation of the Texas nuisance statute
`codified at 30 Tex. Adm. Code § 101.4 and in violation of Texas Health and Safety Code §§
`382.085(a) and 382.085(b). Despite the foregoing, Defendants deny that a nuisance exists and
`have either taken no or insufficient measure[s] to reduce the odor pollution, which has been a
`serial annoyance and interference with the use and enjoyment of Plaintiffs’ Properties.
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`21. Defendants have not reduced the level of their Activities on Defendants’ Properties since
`Defendants began operations and have no intention of doing so now or in the future. On the
`contrary, Defendants[] admit that if an injunction does not issue, they will continue to conduct
`their Activities in the future in exactly the same way they have done in the past. The TCEQ’s
`regulatory efforts have had little or no effect on Defendants: the TCEQ issued violations of the
`nuisance statute to Defendants before Plaintiffs filed this case, after they filed this case, before the
`temporary injunction hearing, after the temporary injunction hearing, and even shortly before trial.
`Despite the TCEQ’s actions against them, Defendants contend their Activities are not a nuisance,
`which lacks any credibility.
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`22. Defendants’ Activities, if not enjoined, will continue in the future, rendering a judgment for
`money damages against one or more Defendants incomplete, ineffectual, and inadequate, such that
`Plaintiffs have no adequate remedy at law. One or more Defendants cannot respond in money
`damages. One or more Defendants have failed to report or under-reported taxable income; made
`misrepresentations to various Texas and federal agencies, and forfeited a corporate charter for
`failure to pay franchise taxes, a deficiency that was not cured until trial.
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`Sanderson, via corporate representatives, testified at trial that the Huynhs followed all of
`Sanderson’s policies regarding growing chickens. In fact, Sanderson “approves of everything
`these growers have done.” Edward Chisolm, who is in charge of Sanderson’s “live grow out”
`testified that “there will be absolutely no change to anything with respect to how these chicken
`farms are operated.” This was despite several odor violations from the TCEQ. Thus, the trial
`court did not abuse its discretion because the evidence established that the nuisance was of a
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`recurring nature and thereby supported the lack of an adequate legal remedy. See Hall, 2011 WL
`61631, at *4.
`Appellants further argue that the permanent injunction is improper because Appellees do
`not face any imminent harm. Appellants contend that because the jury found that the nuisance is
`temporary, it will not recur and, therefore, Appellees face no imminent harm. As explained
`above, whether a nuisance is recurring is a consideration for the trial court. See Hot Rod Hill,
`276 S.W.3d at 575; see also Operation Rescue, 975 S.W.2d at 554 (question of whether
`imminent harm exists is a legal question for the court, not the jury). And the trial court was
`within its discretion to determine the nuisance would recur.
`Furthermore, Appellants’ argument that a temporary nuisance can never be recurring and,
`therefore, can never be subject to a permanent injunction is contrary to Texas Supreme Court
`precedent. The Texas Supreme Court has held that the issuance of a permanent injunction is a
`discretionary decision for the judge after the case has been tried and the jury discharged.
`Schneider, 147 S.W.3d at 286. “[W]hile judges cannot permanently abate a nuisance until jurors
`decide there is one, a trial judge may decide to abate a nuisance whether it is temporary or
`permanent, and may choose not to abate either even if that is the only remedy requested.” Id. at
`286-87; see also Crosstex, 505 S.W.3d at 610. Therefore, we reject Appellants’ contention that a
`temporary nuisance can never be subject to a permanent injunction.
`Because the trial court did not abuse its discretion in finding that the temporary nuisance
`is recurring, Appellees face the threat of imminent harm, and the trial court did not abuse its
`discretion in finding a permanent injunction to be an appropriate remedy. We overrule
`Appellants’ first issue.
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`BALANCING OF THE EQUITIES
`In their third issue, Appellants contend the balancing of the equities favors dissolving the
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`permanent injunction.
`Applicable Law
`In determining whether to grant injunctive relief, a trial court balances the equities and
`relative hardships on the parties and the public. See Storey v. Central Hide & Rendering Co.,
`226 S.W.2d 615, 618–19 (Tex. 1950). In balancing the equities, a trial court may compare
`evidence of harm that could result to the defendant and the public by granting the injunction with
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`the evidence of harm to be sustained by the complainant if the court denies the injunction. See
`id. “If the court finds that the injury to the complainant is slight in comparison to the injury
`caused the defendant and the public by enjoining the nuisance, relief will ordinarily be refused.”
`Id. at 619. A trial court may consider evidence that was presented to the jury or to the judge
`outside of the presence of the jury. See Schneider, 147 S.W.3d at 287. The conclusion that the
`balance of the equities favors an injunction lies within the trial court’s sound discretion. See Lee
`v. Bowles, 397 S.W.2d 923, 929 (Tex. Civ. App.—San Antonio 1965, no writ); Hall, 2011 WL
`61631, at *3.
`Analysis
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`The trial court made the following findings regarding the weighing of the equities:
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`11. In learning about the operating structure of Defendant Sanderson and other poultry operations,
`the Court is aware that Defendant Sanderson has other growers that could absorb the flocks
`currently being grown by the Defendant Growers with little economic impact to Defendant
`Sanderson should the Court grant a permanent injunction.
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`12. The Court also heard conflicting, inconsistent and “concerning” testimony by the Defendant
`Growers themselves. For example, the Court heard inconsistent and conflicting testimony by the
`Defendant Growers as to who runs the farms, who signed certain governmental documents,
`answers given on certain governmental documents, who receives the government subsidies, where
`the Defendant Growers live, whether federal tax returns were filed, who was answerable to
`Defendant Sanderson in the operation of the barns, what steps should be taken to abate odors, the
`cleaning and replacement of chicken litter, etc. The list of inconsistent and conflicting testimony
`by the Defendant Growers could continue at length.
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`. . .
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`17. In evaluating Plaintiffs’ request for a permanent injunction to abate what the jury has already
`found to be a nuisance, the Court has weighed all the competing interests to include: the credibility
`and positioning of the parties, the business model of the Defendant Growers and Defendant
`Sanderson, economic impact to the parties, impact to the food supply, the COVID-19 virus, land
`values of Plaintiffs and Defendants, the effect on the poultry industry in general, Defendants’
`plans to keep growing flocks into the foreseeable future, contractual relations between the
`Defendant Growers and Defendant Sanderson, the State’s policy of free enterprise and business,
`and a myriad of other factors.
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`18. Based on the jury’s findings and considering these factors, the Court finds that Plaintiffs are
`entitled to permanent injunctive relief. The Court understands that this effectively shuts down the
`entire operation of Defendant Huynhs at the Malakoff location. In balancing the equities, the
`Court considered more narrow options. However, based on the business model of this particular
`operation, the voluminous testimony about how chicken barns in this particular business operate,
`the contractual relationship between Defendant Sanderson and Defendant Huynhs, and the
`feasibility and economics of shutting just one of the two farms down or reducing flock size, the
`Court finds that a more narrow injunction is not economic or feasible, nor would it be equitable to
`do so partly based on weighing the behavior and credibility of Defendant Huynhs versus the
`Plaintiffs.
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`. . .
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`22. Defendants’ Activities, if not enjoined, will continue in the future, rendering a judgment for
`money damages against one or more Defendants incomplete, ineffectual, and inadequate, such that
`Plaintiffs have no adequate remedy at law. One or more Defendants cannot respond in money
`damages. One or more Defendants have failed to report or under-reported taxable income; made
`misrepresentations to various Texas and federal agencies, and forfeited a corporate charter for
`failure to pay franchise taxes, a deficiency that was not cured until trial.
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`Appellants argue the jury found that Appellees “face little to no harm if the farms remain
`operational.” However, the jury found that the nuisance decreased the value of Appellees’
`properties by a combined $5,986,500.00, which was not awarded because the jury did not find
`the nuisance to be permanent. Additionally, as discussed above, the evidence supports the trial
`court’s findings that Appellees would suffer irreparable harm.
`
`Appellants further assert that “[a]llowing the permanent injunction to stand would wreak
`havoc” on Appellants and that “public interest also favors dissolving the trial court’s injunction.”
`However, Sanderson’s corporate representative testified that Sanderson has 900 chicken barns
`supplying two East Texas processing plants. And Sanderson has enough capacity that losing
`these two farms will not decrease the number of chickens it can grow. According to Sanderson,
`other barns will grow the chickens that would have been placed with the Huynhs. As a result,
`the evidence supports the trial court’s finding that the injunction would have little economic
`impact on Sanderson. The trial court also weighed the equities against Appellants Huynh and
`Nguyen. In doing so, the trial court considered the documented fraud in obtaining governmental
`approval and subsidies along with their refusal to attempt to stop the nuisance.
`
`As a result, we reject Appellants’ contention that balancing of the equities favors
`dissolving the permanent injunction. Appellants’ third issue is overruled.
`
`
`BREADTH OF THE INJUNCTION
`In a footnote, Appellants urge that if the injunction is upheld, it is overbroad because it
`
`enjoins all Appellants and attempts to bind non-parties.
`
`In relevant part, the injunction states as follows:
`
`
`It is therefore ordered, adjudged, and decreed that Defendants and Defendants’ Affiliates,
`singularly, collectively, and disjunctively:
`
`on or before August 1, 2020, shall cease and desist from conducting and from allowing
`1.
`any other person to conduct any of the Activities on Defendants’ Properties or on any other real
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`property that is subject to Defendants’ ownership and control within 5 (five) miles of any
`boundary of Plaintiffs’ Properties, except for the remedial actions ordered herein;
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`after August 1, 2020, are permanently enjoined from conducting and from allowing any
`2.
`other person to conduct any of the Activities on Defendants’ Properties o