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GTE Mobilnet of South Texas Limited Partnership v. Pascouet9/13/2001
In any event, the trial court had additional grounds to deny the Pascouets' requests for injunctive and declaratory relief. The Pascouets asked the trial court for relief that would prevent GTE from having a tower anywhere in Bunker Hill, even though the evidence showed that there was a gap in GTE's cellular phone coverage. However, under the FTA, " he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 253 & 332(c)(7)(B)(i). While the FTA did not preempt the Pascouets' claims for nuisance and invasion of privacy, this provision of the FTA preempted state law and bound the trial court. If the trial court granted the Pascouets' requests for injunctive and declaratory relief regarding the zoning ordinances, this relief might have had the effect of prohibiting the provision of personal wireless services in violation of the FTA. The trial court did not err by denying the Pascouets' requests for injunctive and declaratory relief as to the Bunker Hill zoning ordinances. Therefore, we overrule the Pascouets' first issue and second issues on cross-appeal.
Conclusion
The FTA does not preempt the Pascouets' common-law damage claims. GTE did not preserve error regarding its complaints about the admission of evidence relating to the zoning ordinances. GTE either failed to preserve error or there was no reversible error regarding Coker's testimony. The evidence was legally and factually sufficient to support the Pascouets' recovery of nuisance damages for loss of market value and past loss of use and enjoyment of their property. There was legally insufficient evidence of future loss-of-use- and-enjoyment damages and of liability and damages for the invasion-of-privacy claim. GTE was not entitled to a settlement credit under Chapter 32 of the Texas Civil Practice and Remedies Code.
The trial court did not err by denying the Pascouets' requests for injunctive and declaratory relief because of the lack of evidence that there was an on-going nuisance that needed to be enjoined, because only municipalities can enforce violations of their zoning ordinances under TEX. LOCAL GOV'T CODE §211.012(c), and because, under the FTA, state regulation may not prohibit or have the effect of prohibiting the provision of personal wireless services. Therefore, we reverse the following portions of the trial court's judgment:
(1) the award to the Pascouets of $540,000 for future nuisance damages; (2) the liability judgment and damages to the Pascouets of $157,500 for invasion-of-privacy; and (3) the portion that awarded the Pascouets prejudgment and postjudgment interest on the foregoing amounts. We render judgment that the Pascouets take nothing on their invasion-of-privacy claims and on their claims for future nuisance damages. We affirm the portions of the trial court's judgment awarding the Pascouets the following relief against GTE: (1) $208,000 in actual damages for past nuisance damages plus $114,884.29 in prejudgment interest and (2) postjudgment interest on the Pascouets' remaining recovery at the rate of ten percent per annum compounded annually from June 21, 1999 until the judgment is paid. We also affirm the trial court's denial of the Pascouets' requests for injunctive and declaratory relief.
Publish -- TEX. R. APP. P. 47.3(b).
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