## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00182 - CV

CROSSTEX NORTH TEXAS PIPELINE, L.P. APPELLANT

V. ANDREW GARDINER AND SHANNON GARDINER APPELLEES

---------- FROM THE 431ST DISTR ICT COURT OF DENTON COUNTY

TRIAL CO URT NO. 2008

- 40133

- 362

---------- 

### CONCURRING AND DISSENTING OPINION

---------- I. I NTRODUCTION I concur with the Majority Opini on ’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,2

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. F ACTUAL S UFFICIENCY S TANDARD OF R EVIEW W hen 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 e vidence” 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 fin ding. 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 r eview all of the evidence in a neutral light and will sustain a factual insufficiency challenge to a jury finding onl y 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 manifest ly 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 ).
T he fact finder is the sole judge of the witnesses’ testimony and of the weight to be given to their test imony under both a legal and a factual sufficiency review

. City of Keller v. Wilson , 168 S.W.3 d 802, 8 19 (Tex. 2005)

. The fact finder is free to believe one witness and disbelieve another, and reviewing3

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 appeal s 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)

. A ccordingly, a court of appeals co nducting 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 clear ly support a different result. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757,
76 1 (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 c hoices, 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 acc ept 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.).
M cGalliard v. Kuhlmann , 722 S.W.2d 694, 697 (Tex. 1986). To ensure that courts of appeals do not simp ly substitute themselves as factfinders for properly constituted juries, when rev ersing 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 or4

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, i n their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict

. Id . at 635. III. T HE M AJORITY O PINION F AILS TO P ROPERLY A PPLY THE S TANDARD OF R EVIEW Question number 2 asked the jury: Did Cro sstex negligently create a nuisance as to the 95

- Acre T ract? 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 “neglig ently” 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 h ave 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 t he evidence presented throughout the trial but then fails to comply with the requirement imposed by Pool

. See id. at 634

– 35. Instead, a fter summarizing the evidence presented during trial , the Majority Opinion contains a four

- paragraph conclusion that pu rport s to be a factual

s ufficiency analysis. The Majority Opinion does not indicate which aspect of the jury’s finding of a negligent nuisance is purportedly supported by factually

-5

insufficient evidence ; I cannot discern whether the Majority Opinion hold s 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
t o use ordinary care , o r 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 manifest ly unjust. Id

. T he Majority Opinion in its four

- paragraph conclusory factual

- sufficiency analysis merely cherry

- p icks isolated snippets of evidence or tes timony; substitutes its own credibility determinations

— t hat these snippets must be true

— despite extensive, directly

- conflicting evidence that the jury below found persuasive ; and then holds that the evidence is fact ually 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 ap peals to conduct proper factual

- sufficiency review be cause 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 d rawn from evidence, the appellate court must defer to the conclusion6

drawn by the factfinder. See Herbert v. Herbert , 754 S.W.2d 141, 144 (Tex. 1988) ( explai ning that in conducting factual

- sufficiency review , appellate court’s admission “ that reasonable m inds 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 timelin ess 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 t he jury answered “yes” to question number 2 after hearing the testimony of fifteen witnesses over five da ys

. Th e 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 minim al. The jury likewise heard extensive evidence supporting its fi nding 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 Major ity Opinion wholly fails to

1 The Majority Opinion treats Crosstex’s mitigation efforts as evidence t hat 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 not7

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 manifest ly unjust and fails to defer to the jury’s determinations as to the weight and credibility of the witnesses ; instead, the Majority Opinion substitutes it s 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. C ONCLUSION Because th e 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 de termination in question number 2 of whether Crosstex “negligently created a nuisance as to the 95

- acre tract” in the first place.