                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                            NO. 02-12-00182-CV


CROSSTEX NORTH TEXAS                                             APPELLANT
PIPELINE, L.P.

                                     V.

ANDREW GARDINER AND                                              APPELLEES
SHANNON GARDINER


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        FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                 TRIAL COURT NO. 2008-40133-362

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             CONCURRING AND DISSENTING OPINION

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                              I. INTRODUCTION

     I concur with the Majority Opinion’s holding that the evidence is legally

sufficient to support the jury’s finding that Appellant Crosstex North Texas

Pipeline, L.P. negligently created a nuisance as to the Appellees Andrew and

Shannon Gardiners’ ninety-five-acre tract of land.     I respectfully dissent,
however, from the Majority Opinion’s conclusion that the evidence is factually

insufficient to support the jury’s negligent nuisance finding because the Majority

Opinion fails to properly apply the required standard of review.

                  II. FACTUAL SUFFICIENCY STANDARD OF REVIEW

      When the party without the burden of proof on a fact issue complains of an

adverse fact finding, that party must show that there is “insufficient evidence”

supporting the finding—that the credible evidence supporting the finding is too

weak or that the finding is against the great weight and preponderance of the

credible evidence contrary to the finding. See Garza v. Alviar, 395 S.W.2d 821,

823 (Tex. 1965); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); W.

Wendall Hall, Hall’s Standards of Review in Texas, 42 St. Mary’s L.J. 3, 41–42

(2010). In conducting a factual-sufficiency review, we review all of the evidence

in a neutral light and will sustain a factual insufficiency challenge to a jury finding

only if the evidence supporting the finding is so weak that the jury’s finding is

clearly wrong or manifestly unjust or the jury’s finding is so against the great

weight and preponderance of the evidence that it is clearly wrong or manifestly

unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas–

Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

       The factfinder is the sole judge of the witnesses’ testimony and of the

weight to be given to their testimony under both a legal and a factual sufficiency

review.   City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).              The

factfinder is free to believe one witness and disbelieve another, and reviewing

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courts may not impose their own opinions to the contrary. Id. When an appellate

court reviews the factual sufficiency of the evidence supporting a jury finding to

prevent a manifestly unjust result, a court of appeals may not set aside such a

finding merely because the judges believe that they would have reached a

different and more reasonable result had they been jurors. Jaffe Aircraft Corp. v.

Carr, 867 S.W.2d 27, 28 (Tex. 1993). Accordingly, a court of appeals conducting

a factual sufficiency review may not pass on a witness’s credibility or substitute

its own judgment for that of the jury, even if the evidence would clearly support a

different result. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,

761 (Tex. 2003); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.), cert.

denied, 525 U.S. 1017 (1998).

      As the sole judge of the credibility of the witnesses, a jury presented with

conflicting evidence has several choices, including the following:

      It may believe one witness and disbelieve others.          Ford v.
      Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561
      (1952). It may resolve inconsistencies in the testimony of any
      witness. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). It
      may accept lay testimony over that of experts. Muro v. Houston Fire
      & Casualty Ins. Co., 329 S.W.2d 326 (Tex. Civ. App.—San Antonio
      1959, writ ref’d n.r.e.).

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

      To ensure that courts of appeals do not simply substitute themselves as

factfinders for properly constituted juries, when reversing on factual-insufficiency

grounds, courts should, in their opinions, detail the evidence relevant to the issue

in consideration and clearly state why the jury’s finding is factually insufficient or

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is so against the great weight and preponderance as to be manifestly unjust, why

it shocks the conscience, or why it clearly demonstrates bias. Pool v. Ford Motor

Co., 715 S.W.2d 629, 634 (Tex. 1986). Further, those courts, in their opinions,

should state in what regard the contrary evidence greatly outweighs the evidence

in support of the verdict. Id. at 635.

 III. THE MAJORITY OPINION FAILS TO PROPERLY APPLY THE STANDARD OF REVIEW

      Question number 2 asked the jury:

      Did Crosstex negligently create a nuisance as to the 95-Acre Tract?

           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.

            A party “negligently” creates a nuisance if they fail to use
      ordinary care, that is, fail to do that which a person or party of
      ordinary prudence would have done under the same or similar
      circumstance or doing that which a person or party of ordinary
      prudence would not have done under the same or similar
      circumstances. “Ordinary care” means that degree of care that
      would be used by a person or party of ordinary prudence under the
      same or similar circumstances.

The jury answered, “yes.”

      The Majority Opinion details the evidence presented throughout the trial

but then fails to comply with the requirement imposed by Pool. See id. at 634–

35. Instead, after summarizing the evidence presented during trial, the Majority

Opinion contains a four-paragraph conclusion that purports to be a factual-

sufficiency analysis. The Majority Opinion does not indicate which aspect of the

jury’s finding of a negligent nuisance is purportedly supported by factually-


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insufficient evidence; I cannot discern whether the Majority Opinion holds that the

evidence is factually insufficient to support the jury’s determination that a

nuisance existed, that the evidence is factually insufficient to support the jury’s

determination that Crosstex’s creation of the nuisance was the result of a failure

to use ordinary care, or both. The Majority Opinion does not clearly state why or

in what regard the evidence supporting the jury’s “yes” finding in question

number 2 is so weak that the finding is clearly wrong or manifestly unjust or

explain how the jury’s “yes” finding in question number 2 is so against the great

weight and preponderance of the evidence that it is clearly wrong or manifestly

unjust. Id.

      The Majority Opinion in its four-paragraph conclusory factual-sufficiency

analysis merely cherry-picks isolated snippets of evidence or testimony;

substitutes its own credibility determinations—that these snippets must be true—

despite extensive, directly-conflicting evidence that the jury below found

persuasive; and then holds that the evidence is factually insufficient to support

the jury’s “yes” finding simply because snippets of conflicting evidence exist.

See, e.g., Ortiz v. Jones, 917 S.W.2d 770, 772–73 (Tex. 1996) (remanding case

to court of appeals to conduct proper factual-sufficiency review because Pool

“does not allow the court of appeals to focus only on the weakest evidence

supporting the judgment and then choose to believe witnesses that the fact-finder

below found unpersuasive”). If reasonable minds may differ about the conclusion

to be drawn from evidence, the appellate court must defer to the conclusion

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drawn by the factfinder. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.

1988) (explaining that in conducting factual-sufficiency review, appellate court’s

admission “that reasonable minds could differ about the conclusion to be drawn

from the evidence makes it abundantly clear that a substitution of court findings

for jury findings has occurred. This was clearly error.”).

      In the interests of brevity of this opinion and of the timeliness of the

disposition of this appeal, I do not conduct the Pool analysis that the Majority

Opinion fails to perform.    I simply point out that the jury answered “yes” to

question number 2 after hearing the testimony of fifteen witnesses over five days.

The jury heard extensive evidence supporting its finding that the noise from the

compressor station constituted a nuisance. See generally Natural Gas Pipeline

Co. v. Justiss, 397 S.W.3d 150, 161 (Tex. 2012) (holding evidence of noise,

odors, and vibrations from compressor station sufficient to support jury’s finding

of permanent nuisance). Crosstex’s contrary evidence, that the noise from the

compressor did not constitute a nuisance, was minimal. The jury likewise heard

extensive evidence supporting its finding that Crosstex negligently created the

nuisance. Crosstex presented contrary evidence from its experts and employees

who opined that Crosstex did not act negligently in creating any nuisance and

had, nonetheless, attempted to mitigate it.1 The Majority Opinion wholly fails to


      1
        The Majority Opinion treats Crosstex’s mitigation efforts as evidence that
it did not act negligently; but based on the language of question number 2, the
jury could have determined that Crosstex’s mitigation efforts impacted whether
the nuisance was temporary or permanent and that mitigation efforts were not
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articulate how, or in what respect, the evidence supporting the jury’s finding to

question number 2 is so weak that the finding is clearly wrong or manifestly

unjust or to explain how the jury’s “yes” finding to question number 2 is so

against the great weight and preponderance of the evidence that it is clearly

wrong or manifestly unjust and fails to defer to the jury’s determinations as to the

weight and credibility of the witnesses; instead, the Majority Opinion substitutes

its own view of the evidence for that of the jury. For these reasons, I respectfully

dissent from the Majority Opinion’s holding that the evidence supporting the jury’s

“yes” finding to question number 2 is factually insufficient.

                                  IV. CONCLUSION

      Because the Majority Opinion fails to properly apply the factual sufficiency

standard of review, I am compelled to dissent.


                                                     /s/ Sue Walker
                                                     SUE WALKER
                                                     JUSTICE


DELIVERED: November 13, 2014




relevant to a determination in question number 2 of whether Crosstex
“negligently created a nuisance as to the 95-acre tract” in the first place.

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