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 

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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, 
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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 factualsufficiency 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.