TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00583-CV
Alan W. Nalle, Sr., Appellant
v.
James Bagan, Meredith Bagan, and Westlake Oaks Property Owners Association,
Appellees
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-006781, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Alan W. Nalle, Sr., appeals from summary judgments granted in favor
of appellees James Bagan, Meredith Bagan, and Westlake Oaks Property Owners Association
(the POA). We will affirm in part and reverse and remand in part.
BACKGROUND
Nalle owns property in the Westlake Oaks subdivision in Austin, Texas, and, like
all homeowners in the subdivision, is a member of the POA. The POA’s Declaration restricts the
types of homes that can be constructed in the neighborhood and requires that “plans and
specifications” for all buildings be “approved in writing as to harmony of external design and
location in relation to surrounding structures and topography” by the POA Board or its
architectural control committee. Meredith and James Bagan purchased a lot adjacent to Nalle’s
home and, in 2017, began constructing a residence there. The Bagans obtained approval for the plans for the residence from the POA’s architectural control committee, and they later received a
variance to allow the residence to exceed two stories and have a four-car garage. Nalle describes
the Bagan residence as more than sixteen-thousand square feet in size, sitting on a foundation
that is up to twenty-seven feet tall, with at least two stories above the foundation that are each ten
to twelve feet in height. He asserts that the residence’s height exceeds the limits contained in the
Declaration and its size renders it out of “harmony” when “compared to neighboring two story,
4,800 square-foot homes.” He also states that “[t]he Bagans’ reflective roof and windows caused
blinding glare, rendering Nalle’s media room, dining room, kitchen, and hallway unusable
2-3 hours daily in winter”; the windows facing his home in conjunction with “Meredith Bagan’s
photography created a ‘fishbowl effect’” that infringes on his privacy; and that the
commercial-scale equipment used to construct the residence generated excessive noise and dust.
He contacted the Bagans several times to request that they mitigate the reflections. The Bagans
did not. Nalle alleges that his “property with the nuisances is $1,350,000 less than the
unencumbered current market value of his property, all based on the Bagans’ disharmonious
home and nuisances.” He further alleges that he has suffered physical and mental harm and
emotional damage, including eye strain, headaches, and vision impairment from the glare as well
as privacy loss. Nalle concludes that the Bagans’ “actions, facilitated by [the POA’s] and [a
member of the architectural control committee’s] conduct, resulted in a home vastly larger than
permitted, and much more valuable for the Bagans, while Nalle bore the consequences.”
After becoming aware of the plans for the Bagan residence, Nalle sued the POA
in 2016 for breach of contract and negligence for failing to enforce the Declaration and asserted
that the POA’s architectural control committee had failed to comply with requirements for
granting a variance. He alleged that the POA’s conduct was intentional because it knew that
2
approval of the variance and plans for the Bagan residence would cause him damages and violate
his rights to privacy and quiet enjoyment of his home. Through his counsel, Nalle sent a series
of emails in 2017 to the Bagans and to the POA complaining of reflections from the residence’s
roof, which were caused initially by reflective underlayment and later by the “brownish”
standing-seam metal used as the final roof material. The residence was completed in 2019.
In March 2019, Nalle and the POA reached a settlement pursuant to which the
POA paid Nalle $300,000 “in full and final settlement of all claims” against the POA “in any
way related to, based upon, or arising out of any of the facts, events, occurrences, circumstances,
acts, omissions, transactions, or relationships that he described in his Second Amended Petition.”
The settlement addressed “all monetary damages, statutory or exemplary damages, attorney’s
fees, court costs, and interest that could be recoverable against any Defendant who ha[s] been
named as parties to this lawsuit.” The agreement provided: “Alan W. Nalle, Sr. hereby accepts
the above-referenced payment in full settlement, compromise and release of all claims as arising
out of or in connection with the Lawsuit, pursuant to this Settlement Agreement, against
Defendant Westlake Oaks Property Owners Association, Inc.” Pursuant to the settlement
agreement, Nalle filed a motion to dismiss, which the trial court granted, dismissing Nalle’s
claims against the POA “and its current and former officers, board members, agents, attorneys,
representatives, heirs, and assigns” with prejudice. Despite the settlement, Nalle later sued two
members of the POA’s architectural control committee: Eric Moreland, who was also the realtor
who sold the Bagans the lot, and Kathryn Hale, who signed the variance as a representative of
the committee. The defendants prevailed on summary judgment in both suits. See Nalle v. Hale,
No. 14-22-00303-CV, 2023 WL 2609336, at *5 (Tex. App.—Houston [14th Dist.] Mar. 23, 2023,
no pet.) (mem. op.) (affirming summary judgment based on one-satisfaction rule); Nalle
3
v. Moreland, No. 03-21-00538-CV, 2023 WL 2025709, at *2 (Tex. App.—Austin Feb. 16, 2023,
no pet.) (mem. op.) (affirming summary judgment based on res judicata).
In September 2019, Nalle sued the Bagans for damages arising from alleged
nuisances the Bagans created either negligently or intentionally as a result of the construction of
their residence. Nalle’s Fifth Amended Petition asserts a claim for negligence based on the
nuisances and an additional claim seeking to enforce the Declaration based on the Bagans’
removal of trees from their property in 2021 without the POA’s authorization. 1 Specifically,
Nalle complained of (1) the large size of the residence; (2) sunlight reflected by the residence’s
standing-seam metal roof that “render[s] Nalle’s media room, dining room, kitchen, and hallway
unusable” for two to three hours each day during winter; (3) the dust and noise generated by the
construction process; and (4) the Bagans’ 2021 removal of trees that “opened sightlines,” thereby
allowing reflections from the Bagans’ windows to shine into his home, exacerbating the loss of
privacy for Nalle, and eliminating “the buffer” “that had previously mitigated the harm caused
by the oversized, non-harmonious house.” He specified that “the unauthorized removal of trees
by the Bagans in January 2021 allowed a previously unseen reflection to enter Plaintiff’s home.
During this time of day and year, blinding focused sunlight reflected from the Bagans’ windows
enters Plaintiff’s windows, rendering the affected spaces unusable.” According to Nalle, around
the time of the unauthorized tree removal, James Bagan commented, “if you think the reflections
were bad before, wait until you see them now.”
In response to Nalle’s negligence claims, the Bagans joined the POA as a
third-party defendant, asserting claims against the POA for negligence, negligent
1 The Declaration specifies that “Approval shall be obtained from the [architectural control committee] to cut down, clear, or kill any trees on any lot.”
4
misrepresentation, breach of duty of good faith and fair dealing and duty of care, and breach of
restrictive covenants, all premised on theories that the Bagans relied on the POA’s approval in
constructing their home and that the POA had a duty to settle possible claims against the Bagans
(rather than solely claims against the POA) in its earlier settlement agreement with Nalle. The
POA filed a response in which it asserted several defenses and alleged that the Bagans had
selectively submitted plans for review by the POA rather than submitting all of the plans for the
home, such that they misled the POA regarding the home’s attributes. On April 7, 2025, the
POA moved for partial summary judgment under Texas Rule of Civil Procedure 38, arguing that
“Nalle’s negligence action against the Bagans is barred by the one satisfaction [rule] and must be
dismissed with prejudice” and that, as a result, the Bagans’ claims against the POA must also be
dismissed with prejudice.
On April 22, the Bagans filed a motion for traditional and no-evidence summary
judgment. The no-evidence motion asserted that Nalle produced no evidence of damages for any
of his claims and no evidence that the Bagans violated the Declaration by cutting down or
removing trees. The traditional motion asserted Nalle’s claims are barred by the one-satisfaction
rule, by collateral estoppel, and by Nalle’s deposition testimony showing that he has
no damages. 2
2 In their brief, the Bagans argue that summary judgment was appropriate because Nalle failed to assert an actionable claim for nuisance, but this argument was not included in their motion for summary judgment, so to the extent that it may differ from the arguments they have made relating to the one-satisfaction rule, collateral estoppel, or evidence of damages, we cannot consider it on appeal. See Tex. R. Civ. P. 166a (“A motion for summary judgment shall state the specific grounds therefor.”); Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 357 (Tex. 2000) (trial court by erred granting summary judgment on claim not addressed by motion); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (movant “must establish his entitlement to a summary judgment on the issues expressly presented to the
5
On May 5, 2025, Nalle filed responses, arguing that neither the one-satisfaction
rule nor collateral estoppel bar him from recovering damages in excess of $300,000 or from
recovering for “distinct injuries,” “continual injuries,” or injuries caused by parties other than the
POA. Attached to the responses were unsworn declarations by Nalle and his attorney, along
with supporting exhibits. On May 12, the Bagans filed objections and moved to strike portions
of Nalle’s declaration and Exhibits 4 (hundreds of pages of documents, including assorted emails
and deposition excerpts) and 5 (an email from POA’s counsel confirming that the Bagans had
not received POA approval to remove any trees since the initial construction in 2017). On
May 13, the trial court heard the Bagans’ and POA’s motions for summary judgment. Nalle filed
a response to the objections and motion to strike on May 14. That same day, the trial court
signed orders granting the appellees’ summary judgments without specifying the grounds on
which it was relying. On May 27, the trial court signed an order that provided:
On May 13, 2025, the Court heard Defendants James and Meredith Bagan’s (“the
Bagans”) Objections to and Motion to Strike Plaintiff Nalle’s (“Plaintiff” or
“Nalle”) Summary Judgment Evidence (the “Motion”). In connection therewith,
the Court enters the following rulings on the Bagans’ objections to Plaintiff Alan
W. Nalle, Sr.’s affidavit attached as Exhibit 1 to Plaintiff’s response to the
Bagans’ Motion (the “Affidavit”), and on the Bagans’ objections to Exhibits 4
and 5 attached to Plaintiff’s summary judgment response.
The order then sustained the Bagans’ objections to Nalle’s summary-judgment evidence. The
Bagans nonsuited their claims against the POA, such that the orders granting summary judgment
became final.
Nalle filed two motions for new trial, reasserting arguments as to why summary
judgment was improper as to each of the defendants and arguing that the trial court erred by
trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law”).
6
entering an order striking his summary-judgment evidence two weeks after granting the
summary judgments. The trial court denied the motions. Nalle appeals.
ANALYSIS
Nalle raises four issues on appeal: (1) the trial court erred in granting the Bagans’
traditional and no-evidence motion for summary judgment, (2) the trial court erred in granting
summary judgment in favor of the POA, (3) the trial court abused its discretion by sustaining
objections to and striking some of Nalle’s summary-judgment evidence, and (4) the trial court
abused its discretion in denying Nalle’s motion for new trial.
Ruling on the Bagans’ Traditional and No-Evidence Motion for Summary Judgment
We review the trial court’s summary-judgment ruling de novo. See Zive
v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022); Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004). Under this standard, we view “the evidence in the light most
favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not.” Zive, 644 S.W.3d
at 173.
“A party moving for traditional summary judgment must prove that no genuine
issue of material fact exists and it is entitled to judgment as a matter of law.” Wal-Mart Stores,
Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023); see Tex. R. Civ. P.
166a(c). 3 A movant seeking a no-evidence summary judgment must assert that “there is no
The Texas Supreme Court recently amended Texas Rule of Civil Procedure 166a, but
3
“[o]ther than the deadline changes, Rule 166a’s rewrite is not intended to substantively change the law.” Tex. R. Civ. P. 166a (cmt. to 2026 change). The amendments renumbered the rule’s provisions. See Supreme Court of Tex., Final Approval of Amendments to Rule 166a of the
7
evidence of one or more essential elements of a claim or defense on which an adverse party
would have the burden of proof at trial.” Tex. R. Civ. P. 166a(i). “The court must grant the
motion unless the respondent produces summary judgment evidence raising a genuine issue of
material fact” on the challenged elements. Id.; see JLB Builders, L.L.C. v. Hernandez,
622 S.W.3d 860, 864 (Tex. 2021) (explaining that “no-evidence motion shifts the burden to the
nonmovant to present evidence raising a genuine issue of material fact supporting each element
contested in the motion”).
“A genuine issue of material fact exists if the evidence ‘rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.’” First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “The evidence does not create
an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or
suspicion’ that the fact exists.” Id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875
(Tex. 2014)). When a trial court grants a summary-judgment motion without specifying its
grounds for doing so, we affirm the judgment if the movant advanced any meritorious theory in
the trial court. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Nalle asserts that fact issues preclude summary judgment on all his claims and
that (1) the one-satisfaction rule does not bar his claims against the Bagans; (2) collateral
estoppel does not apply; (3) he submitted more than a scintilla of evidence of damages and
breach of the Declaration.
Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). Because the amendments apply only to summary-judgment motions filed on or after March 1, 2026, and the filing of the Bagans’ summary-judgment motion preceded the amendments, we refer to the provisions of Rule 166a in effect at the time of filing. See id.
8
One-Satisfaction Rule
Although they were not parties to the settlement, the Bagans assert that “the one
satisfaction rule bars Nalle’s continued complaints about the Bagans’ home, which were fully
resolved in Nalle’s first lawsuit against the POA.” Nalle urges that the one-satisfaction rule does
not bar his claims against the Bagans because his settlement with the POA “did not encompass
the Bagans’ superseding acts, which inflicted separate harms.”
“The one satisfaction rule applies to prevent a plaintiff from obtaining more than
one recovery for the same injury.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.
1991); see also Crown Life Ins. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). Under this rule, a
plaintiff is entitled to one recovery for damages suffered when multiple defendants commit
the same act as well as when multiple defendants commit technically different acts resulting
in a single injury. Casteel, 22 S.W.3d at 390; see El Paso Nat. Gas Co. v. Berryman,
858 S.W.2d 362, 364 (Tex. 1993) (per curiam) (“The one satisfaction rule provides that a party
which suffers but one injury can recover only one satisfaction for damages arising from that
injury.”). The rule focuses on whether the plaintiff has suffered a single, indivisible injury and
not the alleged causes of action. Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 113–
15 (Tex. 2018). We review the trial court’s application of the one-satisfaction rule de novo.
Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d 145, 163 (Tex.
App.—Austin 2017, pet. denied) (en banc).
“A nonsettling defendant seeking a settlement credit under the one-satisfaction
rule has the burden to prove its right to such a credit.” Id. at 107 (citing Utts v. Short,
81 S.W.3d 822, 828 (Tex. 2002); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.
1998)). A nonsettling defendant can meet this burden by introducing into the record the
9
settlement agreement or other evidence of the settlement amount. Mobil Oil Corp., 968 S.W.2d
at 927. “Once the nonsettling defendant demonstrates a right to a settlement credit, the burden
shifts to the plaintiff to show that certain amounts should not be credited because of the
settlement agreement’s allocation.” Utts, 81 S.W.3d at 828. “The plaintiff can rebut the
presumption that the nonsettling defendant is entitled to settlement credits by presenting
evidence showing that the settlement proceeds are allocated among defendants, injuries, or
damages” such that entering judgment would not provide the plaintiff a double recovery.
Sky View at Las Palmas, LLC, 555 S.W.3d at 107–08; see First Title Co. of Waco v. Garrett,
860 S.W.2d 74, 79 (Tex. 1993) (applying one-satisfaction rule when plaintiff did not show it
settled for separate injury). Summary judgment based on the one-satisfaction rule is proper
when it would prevent a claimant from recovering more than the amount required for full
satisfaction of his damages. See El Paso Nat. Gas Co., 858 S.W.2d at 363–64 (affirming
summary judgment based on one-satisfaction rule and collateral estoppel where settlement
payment from one defendant fully satisfied all damages sought from second defendant).
Unlike the defendants in Nalle’s previous lawsuits, the Bagans are not “current
and former officers, board members, agents, attorneys, representatives, heirs, and assigns” of the
POA. Thus, they are not expressly covered by the settlement agreement. The question then is
whether Nalle’s claims seek to recover from the Bagans for the same injury alleged in the suit
against the POA—the one-satisfaction rule bars recovery for any such claims absent evidence of
damages exceeding the amount of the settlement agreement.
In his suit against the POA, Nalle asserted,
The construction of the Bagan home has created nuisances, past, present and
future, in violation of the Declaration, including but not limited to the following:
10
current and past construction of the overlarge and raised residence; future HVAC
equipment noise and heat, future landscape lighting, future security lighting, guest
noise, guest parking, and the excessive height of the home (twice the allowable
height) and will create an ongoing violation of plaintiff’s right to privacy and
right to quiet enjoyment of his home.
In other words, he specifically complained of the nuisances caused by “current and past
construction” and the residence’s “disharmonious” size or other “nuisances, past, present, and
future” created by the residence as approved by the POA’s architectural control committee.
Nalle repeatedly contacted both the Bagans and the POA regarding the roof’s height, angle, and
materials to express that reflections were one of the nuisances to which he had objected since
2017. The Declaration provides the POA or its architectural control committee the discretion to
approve “as to harmony of external design and location in relation to surrounding structures and
topography” the “plans and specifications showing the nature, kind, height, materials, and
location” of any structure and any change to the exterior of any structure. The Bagans submitted
plans to the POA’s architectural control committee, which approved them and provided them
with a variance specifically allowing the residence to exceed the usual two-story height limit
specified in the Declaration. A result of the POA’s approval of the plans was that construction
could, and did, ensue. Because Nalle alleged these same injuries of “current and past
construction,” the resulting “overlarge and raised residence,” and ongoing nuisances caused by
the residence’s construction and existence in his suit against the Bagans, these claims relating to
POA-approved aspects of the home’s initial construction are barred by the one-satisfaction rule
except insofar as any resulting damages exceed $300,000. See Utts, 81 S.W.3d at 828 (when
defendant has introduced evidence of settlement amount, burden shifts to plaintiff to show
allocation of settlement amounts).
11
Nalle’s remaining complaint is that in 2021 (more than a year after the POA
settled with Nalle), the Bagans violated the Declaration’s prohibition on cutting down, clearing,
or removing any trees by clearing trees on their lot, including at least one large hackberry tree
and other smaller trees that had been growing between their house and Nalle’s without seeking
POA approval. Nalle asserts that this tree removal, in addition to violating the Declaration,
caused “blinding glare” from sunlight reflected off the Bagans’ windows and further deprived
him of privacy. Tree removal in violation of the Declaration was not referenced in the suit
against the POA and is distinct from Nalle’s complaints of home construction in violation of
different provisions of the Declaration or pursuant to the variance granted by the POA. Because
the complaint of tree removal articulates an injury not addressed by the suit against the POA, we
conclude that the Bagans have not shown that the one-satisfaction rule bars Nalle from
recovering for this later injury.
Collateral estoppel
The doctrine of collateral estoppel precludes relitigation of particular issues
resolved in a prior suit, Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992), and is
designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent
inconsistent judgments, Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).
To invoke collateral estoppel, a party must establish that “(1) the facts sought to be litigated in
the second action were fully and fairly litigated in a first action; (2) those facts were essential to
the judgment in the first action; and (3) the parties were cast as adversaries in the first action.”
In re USAA Gen. Indem. Co., 629 S.W.3d 878, 883 (Tex. 2021) (orig. proceeding) (quoting
Sysco Food Servs., Inc., 890 S.W.2d at 801). “Collateral estoppel does not apply when claims
12
are dismissed with prejudice without litigation of any issues.” Indemnity Ins. v. City of Garland,
258 S.W.3d 262, 271 (Tex. App.—Dallas 2008, no pet.) (citing Sinton Sav. Ass’n v. Ellis,
474 S.W.2d 281, 286 (Tex. App.—Corpus Christi–Edinburg 1971, writ ref’d n.r.e.)). Collateral
estoppel applies only when the party against whom it is asserted “had a full and fair
opportunity to litigate the issue in the prior suit.” Tarter v. Metropolitan Sav. & Loan Ass’n,
744 S.W.2d 926, 927 (Tex. 1988); see also Johnson & Higgins of Tex., Inc. v. Kenneco Energy,
Inc., 962 S.W.2d 507, 519 (Tex. 1998) (“Defensive collateral estoppel is utilized by defendants
to prevent relitigation by a plaintiff of issues previously lost against another defendant.”). “To
prove that an issue has been actually litigated, the first element of collateral estoppel, it must be
shown that the issue . . . was properly raised, submitted for determination, and determined.”
French v. Gill, 206 S.W.3d 737, 744 (Tex. App.—Texarkana 2006, no pet.) (citing Van Dyke
v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985)).
Nalle’s claims against the POA were dismissed with prejudice without having
been “fully and fairly litigated.” Consequently, collateral estoppel does not apply. See
Indemnity Ins., 258 S.W.3d at 271.
Evidence of damages and breach of Declaration
Nalle asserts that the trial court erred in granting the Bagans’ no-evidence motion
because the record contains evidence of various damages for his claims and evidence that the
Bagans violated the Declaration by cutting down or removing trees. Regarding evidence of
damages, Nalle argues that the “record supports $1.35 million in losses from property value
diminution, loss of use, and personal injuries.” In his declaration, Nalle opined that his
property’s fair market value had diminished by $1,350,000 because of the “ongoing reflective
13
nuisances, privacy loss, and the Bagans’ disharmonious home.” The Bagans object that this
opinion in Nalle’s declaration is conclusory. Although Nalle has challenged the ruling on the
Bagans’ objections to his summary-judgment evidence as untimely, that analysis does not impact
our analysis of whether evidence is conclusory or otherwise incompetent to support summary
judgment because we may consider such substantive evidentiary challenges for the first time on
appeal. See Investment Retrievers, Inc. v. Fisher, No. 03-13-00510-CV, 2015 WL 3918503, at
*4–5 (Tex. App.—Austin June 25, 2015, no pet.) (mem. op.) (noting the distinction between
challenges to form and challenges to substance of summary-judgment evidence); Stewart
v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (“defects in the
substance of the opposing party’s evidence are not waived, and can be raised for the first time
on appeal”).
We agree with the Bagans. Nothing in the record explains how Nalle valued his
property before or after the construction of the Bagans’ home, nor does the record reveal the
value of his home at any point. Instead, Nalle generally averred that he is familiar with property
values in the neighborhood, that his loss is the difference in value of his property with and
without the nuisances, and then, without explanation as to the value of his property or the value
of any of the alleged nuisances, he concludes that the lost value is $1,350,000. In the absence of
an explanation or other supporting evidence, this bare conclusion as to the amount of lost
property value is no evidence of his alleged damages. See Natural Gas Pipeline Co. of Am.
v. Justiss, 397 S.W.3d 150, 161 (Tex. 2012) (“We conclude that the landowners’ bare
conclusions provide no evidence of the damage caused by the nuisance.”); Golden Corral Corp.
v. Noble Aus. Apartments L.L.C., No. 03-19-00463-CV, 2021 WL 2878565, at *6–8 (Tex.
App.—Austin July 9, 2021, no pet.) (mem. op.) (citing Bombardier Aerospace Corp. v. SPEP
14
Aircraft Holdings, LLC, 572 S.W.3d 213, 223 (Tex. 2019) and noting, after discussing standards
for testimony of diminished value, that “assertions of familiarity with area market values are
insufficient to make otherwise conclusory or speculative testimony legally sufficient”). Nalle’s
deposition does not provide added clarity. In it, he opined that he was entitled to “more than
$1 million for me,” and when asked how he arrived at that estimate, he responded, “Pulled it out
of the sky.” He was also asked about the current fair market value of his property. He
responded, “I have no idea.” He acknowledged than the POA had an appraisal of his home done
in 2017 and said “the appraisal I think was $2 million, something like that” and later added “I
assume that that was made as instructed appraisal for whatever purposes they wanted it. So I
don’t—I don’t put much stock in those kinds of things.” He stated he had “no idea” if the home
had increased in value since 2017. Nalle also seems to argue that he based his estimate of
diminished value on conversations with a potential buyer of the Bagan residence. Nalle avers
that a potential buyer opted not to complete the purchase based on the results of a home
inspection and on learning of Nalle’s lawsuit, but the potential buyer did not, in the record we
have, provide an opinion regarding value of the Nalle residence. We conclude that Nalle
presented no competent evidence of diminished property value.
As for physical property damages, Nalle asserted in his declaration that dust from
construction damaged his property inside and outside of his home because it “require[d]
cleaning.” In his deposition, he did not identify work beyond routine cleaning that was needed to
restore his property to its usual condition and noted that the cleanup costs he incurred from
having his “yard guy” and housekeeper clean did not exceed the amounts they are paid for their
regular work. Accordingly, we conclude that Nalle presented no evidence of damages resulting
from construction dust.
15
Nalle also complained in his declaration of noise that “persisted throughout
construction,” thereby intruding on his “quiet enjoyment” of his home. As support for this claim,
he provided photographs of trucks and equipment that appear to be on public roadways or the
Bagan property. This noise complaint stems from the construction of the home that was
approved by the POA’s architectural control committee, and Nalle has not identified damages he
continues to suffer or what separate injury he suffered as a result of independent acts by the
Bagans. More importantly, Nalle did not specify how the construction noise intruded on his
quiet enjoyment, and he did not detail the duration or severity of the noise. Nor does he identify
damages he suffered from pollution. Accordingly, we conclude that Nalle’s conclusory
statement that construction noise disrupted his quiet enjoyment of his home provided no
evidence of damages from construction noise or pollution. See Ryland Grp., Inc. v. Hood,
924 S.W.2d 120, 122 (Tex. 1996) (“Conclusory affidavits are not enough to raise fact issues.”;
“They are not credible, nor susceptible to being readily controverted.”); Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex. 1984).
Nalle stated in his summary-judgment response that he has suffered loss of use
and enjoyment, personal injuries, and harm to his health and peace of mind as a result of the
reflections of sunlight that shine from the Bagans’ roof and windows. He specifically stated that
“roof reflections (November–January) and window reflections (since June 2021) render rooms
unusable.” In his deposition, he specified that the duration of the glare is up to “2-3 hours” each
day during the winter months and that it does not render all rooms unusable for that duration, but
instead the glare “sort of moves,” starting in the media room, then continuing through other
windows of his home. He explained that the media room does not have curtains or blinds. He
confirmed that he has not received medical treatment for any alleged harms to his physical or
16
mental health relating to the reflections and explained that when he alleged harm to his health, he
meant “Peace of mind, quiet enjoyment, aggravation,” and later elaborated that the harm to his
mental health and state of mind “has a very strong effect on your physical health.” He submitted
photographs taken from two rooms in his home showing bright reflections from the roof and
windows of the Bagan residence that are visible through the windows of Nalle’s home. In his
declaration, Nalle averred that the reflections “prevent me from using my media room, dining
room, kitchen, and hallway during affected periods.” He further explained that although these
reflections “cause eye strain, headaches, and temporary vision impairment”—ailments not
mentioned in his deposition—he has “not installed blinds, shades, or trees to block reflections, as
blinds are out of character with my home’s design (only bedrooms have curtains) and no tree
could block the 35-foot-high roof reflections.” He then concludes that the “distinct harms and
damages” from the reflections are “far in excess of $300,000.” Nalle does not explain the basis
for his conclusion that the damages he has suffered from the roof reflections (which formed part
of the basis of his initial lawsuit as an ongoing or “past, present, or future” nuisance) exceed the
$300,000 he received from settling the suit against the POA. Accordingly, Nalle’s conclusory
statement regarding the amount of his damages is not competent evidence sufficient to survive
the Bagans’ no-evidence motion.
In sum, Nalle has not presented competent evidence of damages in excess of the
$300,000 he received from the POA for the alleged resulting nuisances. We therefore overrule
Nalle’s first issue as it relates to his negligence claims arising from the initial construction of the
Bagan residence.
Unlike his negligence claims, Nalle’s complaint regarding the removal of trees is
based on the Bagans’ violation of the Declaration’s prohibition on removing “any trees on any
17
lot” without POA approval. In addition to violating the clause prohibiting tree removal, Nalle
asserts the Bagans’ conduct also resulted in a violation of the Declaration’s “Nuisance”
provision, which provides that “Nothing shall be done or permitted on any lot which may be or
become an annoyance or nuisance to the neighborhood.” The Bagans do not dispute that they
removed trees from their property in 2021 without POA approval. Nalle testified to the Bagans’
removal of trees in his deposition, asserting that their removal resulted in removal of a visual
buffer that opened up new reflections that impacted his home. Nothing in the record contradicts
his claim that this violated the Declaration or amounted to an “annoyance or nuisance” within the
meaning of the Declaration. The Declaration specifically provides that property owners have a
right to enforce its covenants and restrictions “by any proceeding at law or in equity against any
person or persons violating or attempting to violate any covenant or restriction.” We conclude
that the trial court erred in granting summary judgment against Nalle on his claim for violation of
the Declaration’s prohibition on unapproved tree removal, and we sustain this portion of Nalle’s
first issue.
Ruling on POA’s Rule 38 Partial Motion for Summary Judgment
The POA moved for summary judgment on the ground that the one-satisfaction
rule bars plaintiff’s negligence claims against the Bagans, such that the POA cannot be liable.
As discussed above, we agree that such claims are barred to the extent that damages for these
negligence claims did not exceed the amount paid as a result of the settlement. Having
determined that Nalle did not produce competent summary-judgment evidence showing that he
sustained damages in excess of the settlement amount resulting from the negligence claims, we
conclude that the POA could not be liable “for all or part of the plaintiff’s claim negligence
18
claims against” them. Tex. R. Civ. P. 38(a). We overrule Nalle’s second issue and affirm the
trial court’s grant of summary judgment in favor of the POA.
Ruling on Objections and Motion to Strike
Nalle’s third issue challenges the trial court’s evidentiary ruling striking portions
of his declaration and Exhibits 4 and 5 to his responses to the Bagans’ and POA’s motions for
summary judgment. His sole complaint on appeal is that the trial court abused its discretion by
ruling on the Bagans’ objections two weeks after ruling on the motions for summary judgment.
“The same evidentiary standards that apply in trials also control the admissibility
of evidence in summary-judgment proceedings.” FieldTurf USA, Inc. v. Pleasant Grove
Indep. Sch. Dist., 642 S.W.3d 829, 837 (Tex. 2022) (quoting Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 163–64 (Tex. 2018) (per curiam)). We review a trial court’s ruling to admit or
exclude evidence for an abuse of discretion. National Liab. & Fire Ins. v. Allen, 15 S.W.3d 525,
527–28 (Tex. 2000). A trial court abuses its discretion “by acting ‘without reference to any
guiding rules and principles.’” Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex.
2017) (per curiam) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985)). Further, a trial court’s error in admitting or excluding evidence is reversible only if
it probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). On
summary-judgment, a trial court’s “review generally extends to the evidence that was before the
court when it ruled, absent an indication that the court did not consider certain evidence for
purposes of that ruling.” Plotkin v. Joekel, 304 S.W.3d 455, 485–86 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied) (citing Methodist Hosps. of Dall. v. Tall, 972 S.W.2d 894, 898
19
(Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (“It is axiomatic that an appellate court
reviews actions of a trial court based on the materials before the trial court at the time it acted.”)).
Nalle contends, “The trial court’s decision to sign the strike order on
May 27, 2025—thirteen days after granting summary judgments . . . without a hearing or postjudgment opportunity for Nalle to respond was a blatant abuse of discretion that created an
irreconcilable contradiction and violated due process.” He cites Texas Rule of Civil Procedure
21 in support of this argument. While the rule provides for notice and an opportunity to
participate in proceedings on motions, it does not require a “post-judgment” opportunity to be
heard on a motion that the court is reviewing by submission. See Tex. R. Civ. P. 21(b). Nalle
further asserts that the “summary judgment orders expressly recited that the court ‘considered the
motion, the response, the reply, the evidence, and the arguments of counsel’ . . . , implying full
reliance on Nalle’s submissions.”
In addressing the concept of ruling on objections after ruling on summary
judgments in the context of the issue of waiver, the Fourteenth Court explained in Dolcefino
v. Randolph,
the better practice is for the trial court to disclose, in writing, its rulings on all
objections to summary judgment evidence at or before the time it enters the order
granting or denying summary judgment. Practitioners should facilitate this
procedure by incorporating all parties’ objections to summary judgment evidence
in proposed orders granting or denying summary judgment and including a
“Mother Hubbard” recitation to encompass any objections not otherwise
addressed in the proposed orders. This practice will direct the trial court’s
attention to the matter, and serve as a reminder to the court to disclose its rulings
on all objections to summary judgment evidence at the time it issues its ruling on
the summary judgment motion. Following this practice becomes especially
critical where the trial court takes the motion under advisement or rules on it
without an oral hearing because, in such cases, there is no live forum in which to
insist on disclosure of the court’s rulings on the objections prior to the court’s
ruling on the motion. In any context, however, it is incumbent upon the party
20
asserting objections to obtain a written ruling at, before, or very near the time the
trial court rules on the motion for summary judgment or risk waiver. See Tex. R.
App. P. 33.1(a).
19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see Seim, 551 S.W.3d
at 165 (quoting and approving of this language from Dolcefino). The Dolcefino court
determined that because the trial court never revealed its presumptive ruling on appellants’
objections, the court could not infer those rulings from the judgment. Id. at 926–27.
In this case, however, the trial court revealed its ruling in a written order signed
thirteen days after the court entered summary judgment. Some of our sister courts have
addressed similar circumstances and overruled complaints regarding post-summary-judgment
rulings on objections when the record reflects that the trial court considered and ruled on
objections at or before the time it ruled on a motion for summary judgment, memorializing that
ruling at a later time. E.g., Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 420–21
(Tex. App.—Dallas 2002, no pet.) (holding that order sustaining evidentiary objections signed
89 days after summary-judgment ruling was effective to memorialize evidentiary ruling made
before summary-judgment order’s signing, the summary-judgment order stated the court had
considered “evidence admitted for consideration” and parties’ objections); Hill v. Crowson,
No. 10-09-00006-CV, 2009 WL 3858065, at *1–2 (Tex. App.—Waco Nov. 18, 2009, no pet.)
(mem. op.) (relying on Crocker and overruling challenge to written ruling on objections signed
nearly one month after summary judgment ruling when ruling on objections “states that the
objections were considered, along with the no-evidence motion, on the submission date”); see
also Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 295 (Tex. App.—Dallas 2009, no pet.))
(acknowledging breadth of trial court’s plenary power to issue post-summary-judgment rulings
21
on objections and stating, “Although we are troubled by the timing of the orders, we note that the
Texas Rules of Civil Procedure do not prescribe a period of time in which a court is required to
rule on summary judgment objections.” (citing Tex. R. Civ. P. 166a)). The First Court of
Appeals in Plotkin sustained an objection to a written ruling on objections signed more than two
months after the order on summary judgment was rendered when it was “not entirely clear” “that
the court did not consider the disputed evidence at the time of its summary-judgment ruling.”
304 S.W.3d at 486. In Plotkin, nothing in the record specified that the trial court had considered
the objections at or before the time it ruled on the summary-judgment motion, and the party
raising the objections requested in its motion for new trial that the court rule on the objections
and specifically stated in the motion for new trial that the court did not rule on the objections. Id.
Here, the trial court’s ruling on the Bagans’ objections states that the court heard
the objections on the same day as the hearing on the motions for summary judgment, and the
court did not issue a summary-judgment ruling until the day it received Nalle’s responses to the
objections. Because the record indicates that the court, in ruling on the summary judgments, did
not consider the evidence for which it later memorialized its ruling sustaining the Bagans’
objections, we overrule Nalle’s third issue.
Motion for New Trial
In his fourth issue, Nalle challenges the trial court’s denial of his motions for new
trial for the same reasons already identified in his first three issues. Our analysis of this issue
would therefore reach the same result—partially remanding the case to the trial court—without
affording Nalle any greater relief. Accordingly, we do not separately address Nalle’s fourth
issue. See Tex. R. App. P. 47.1.
22
CONCLUSION
We reverse the portion of the trial court’s order granting summary judgment in
favor of the Bagans on Nalle’s claim for breach of the Declaration’s prohibition on
removing trees without POA approval and remand for further proceedings. The trial court’s
summary-judgment orders are otherwise affirmed.
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed in Part; Reversed and Remanded in Part
Filed: August 14, 2026
23