Duke Energy Field Services, LP v. Glendell Meyer, Rose Marie Meyer, and Eddith M. Hinkle ( 2005 )

NO. 07-04-0486-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 27, 2005
______________________________
DUKE ENERGY FIELD SERVICES, L.P., APPELLANT
V.
GLENDELL MEYER, ROSE MARIE MEYER, AND EDDITH M. HINKLE, APPELLEES
_________________________________
FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;
NO. 02-01-3706; HONORABLE STEVEN EMMERT, JUDGE
_______________________________
OPINION
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Duke Energy Field Services, L. P. presents five issues complaining of the judgment
rendered based upon jury findings that Eddith M. Hinkle recover $77,473.53 plus pre-
judgment interest and attorney’s fees against Duke.1 Duke does not challenge the award
1
The judgment signed July 28, 2004, did not make any award to Glendell Meyer or
Rose Marie Meyer.
to Hinkle that she recover the sum of $1,000 for damages to her land and related attorney’s
fees in the amount of $3,186. Presenting issues one and two, Duke challenges the legal
and factual sufficiency of the evidence to support a finding of causation. By issue three,
Duke challenges the legal sufficiency of the evidence to support a finding that Duke
breached its duty of ordinary care, and by issue four, Duke contends the trial court erred
by submitting an instruction on the inference of res ipsa loquitur. By the fifth issue, Duke
challenges the award of attorney’s fees to the Meyers due to the absence of a contract.
By two cross-points, Hinkle contends the trial court erred in (1) not submitting the nuisance
claim and (2) refusing to submit the trespass claim.
On May 21, 1970, Hinkle’s predecessors in title, Harold Perry and Alice Perry, as
grantors, executed an easement granting rights to construct, operate, maintain, and repair
a pipeline upon the subject lands in Lipscomb County to Phillips Petroleum Company.2
Among other things, the easement provided that Phillips Petroleum would “pay grantors for
any other or additional damages to growing crops, grass, fences, improvements and
livestock which may result of the exercise of the rights” therein granted. By written lease
dated November 28, 1994, Hinkle’s predecessors, via the family trust, made a surface
lease for agricultural purposes to Glendell Meyer for a term of two years. Upon distribution
of the land, Hinkle orally continued the 1994 grass lease with Meyer who placed 45 cows
on the 928 acre pasture, the leased premises.
2
At the time of trial, Duke was the assignee of record of the May 21, 1970 easement.
2
On the morning of January 10, 2001, when Meyer went to the pasture to feed hay,
he saw the cows in a circle gathered around a leak area in the pasture. The cows were
standing in a black-green oily product, and he saw them licking and rubbing their noses in
the oily product. Meyer moved the cows to another portion of the pasture and later that
day, at his request, an employee of Duke placed some temporary fencing around the leak
site. The cows in the pasture were bred to start calving around March 1. When Meyer
inspected the cows the following morning, he found some cows heaving and some had
aborted calves, but he could not find the aborted calves. On January 2, 2002, Meyer and
Hinkle filed suit for damages to the cows and surface damages alleging multiple grounds
for recovery.
On March 11, 2002, the Meyers assigned their cause of action against Duke
pursuant to section 12.014 of the Texas Property Code. At the conclusion of the evidence,
the trial court submitted the case to the jury. As material to this appeal, the charge
presented questions to the jury of (2) Duke’s negligence and proximate cause and (3)(b)
Duke’s failure to comply with the agreement and proximate cause. In connection with the
negligence question, the trial court submitted an instruction regarding res ipsa loquitur. In
addition, the trial court instructed the jury as follows:
A fact may be established by direct evidence or by circumstantial
evidence, or both. A fact is established by direct evidence when proved by
documentary evidence or by witnesses who saw the act done or heard the
words spoken. A fact is established by circumstantial evidence when it may
be fairly and reasonably inferred from other facts proved.
3
Duke did not object to the instruction regarding circumstantial evidence.
Answers favorable to Hinkle being returned, the court then rendered its judgment
on July 28, 2004. By its partial motion for new trial, Duke contended (1) the evidence was
factually insufficient that its negligence or breach of contract caused any damage to the
cows, and (2) the evidence was factually insufficient that the pipeline leak resulted from the
negligence of Duke. After its partial motion for new trial was overruled, Duke timely filed
its notice of appeal. Regarding its legal and factual sufficiency of the evidence claims,
Duke does not present an issue contending the trial court erred in admitting the opinion of
Meyer or that the nature of the injuries to the cows were such that expert testimony was
required to establish causation of the alleged injuries to the cows.3
By its answer to question two, the jury found that Duke’s negligence was a
proximate cause of the injury to the cows. Then, by its answer to question 3(b) the jury
found that Duke’s failure to comply with the easement agreement was also a proximate
cause of damages to the cows. By its first and second issues, Duke contends the
evidence was legally and factually insufficient to support a finding of causation.
3
Cf. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 936 (Tex.App.–Texarkana 1997, writ
denied); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
4
Standard of Review
In our examination of the contentions of a lack of evidence, we must review the
entire record to determine whether there is more than a scintilla of evidence to support the
findings, and if so, the findings will be upheld. Stedman v. Georgetown Sav. & Loan Ass'n,
595 S.W.2d 486, 488 (Tex. 1979); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Evidence is merely a scintilla when it is so weak as to do nothing more than create a mere
surmise or suspicion of a fact. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752,
755 (Tex. 1970). We must consider only the evidence and the reasonable inferences which
can be drawn therefrom in their most favorable light to support the jury's findings while
disregarding all contrary evidence and inferences. Browning-Ferris, Inc. v. Reyna, 865
S.W.2d 925, 928 (Tex. 1993).
If there is some evidence to support the findings, we must then determine its factual
sufficiency. In so doing, we must consider and weigh all the evidence and set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Dyson v. Olin
Corp., 692 S.W.2d 456, 457 (Tex. 1985). Each of the sufficiency complaints herein will be
evaluated utilizing these standards of review.
By its first issue, Duke contends the evidence was legally insufficient to support the
jury findings of causation. We disagree.
5
Meyer had placed cattle on the leased pasture for several years before the leak was
discovered. Evidence of the pipeline leak on January 10, 2001 of oil or other petroleum
solution in the pasture where Meyer’s cows were located is undisputed. Meyer testified
that 100 per cent of his cows delivered calves the first year he owned them and they were
bred to start calving March 1, 2001, or thereafter. Also, he testified that after he saw the
cows licking and smelling the oil at the leak site, one cow aborted her calf the next day and
that over a period of time, 30 cows aborted or had dead calves and the next year, 17 of 39
remaining cows were barren or had calves that died. Meyer also testified that, in his
opinion, the calving problem was caused by the cows ingesting the oil or other liquid at the
leak site and he did not know of any other reason that could have caused the calving
problems.4 Doctor Skaggs, DVM and another veterinarian testified that, among other
possible known factors, drinking oil can cause cows to abort their calves.
Reviewing this evidence in light of the circumstantial evidence instruction and
considering the evidence favorable to the verdict only, an inference of causation is
presented by the objective facts. Duke argues that expert testimony is necessary to
establish causation unless general experience and common sense will enable a layman to
fairly determine the causal relationship between the occurrence and the injury. Because
Duke did not object to the testimony of Meyer, and this contention was not otherwise
presented to the trial court, it may not be considered for the first time on appeal. State of
4
Duke did not present any objection grounded on Texas Rules of Evidence 701, 702,
or otherwise.
6
Cal. Dept. of Mental Hygiene v. Bank of the S.W. Nat. Ass’n, 163 Tex. 314, 354 S.W.2d
576, 581 (1962). Then, citing E. I. du Pont de Nemours and Co., Inc. v. Robinson, 923
S.W.2d 549, 556 (Tex. 1995), Duke, however, argues the evidence is not sufficiently
relevant and reliable to meet the requirements of Rule 702 of the Texas Rules of Evidence.
However, Robinson is not controlling here because it was concerned with the admissibility
of evidence which is not at issue here. Moreover, by its failure to object to Meyer’s opinion
as being unreliable, Duke waived any contention that the opinion was unreliable. See
Guadalupe-Blanco River Authority v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Texas Dept.
of Human Services v. Green, 855 S.W.2d 136,149 (Tex.App.–Austin 1993, writ denied).
Also, Duke’s failure to request a limiting instruction regarding the causation opinion of
Meyer per Rule 105(a) of the Texas Rules of Evidence, it waived its complaint to general
admission of the evidence. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365
(Tex. 1987). Considering only the evidence and the reasonable inferences which can be
drawn therefrom in their most favorable light to support the jury’s findings and disregarding
all contrary evidence and inferences, we conclude the evidence was legally sufficient to
support the jury findings to question 2 and question 3(b). Accordingly, issue one is
overruled.
By its second issue, Duke contends the evidence was factually insufficient to support
a finding of causation. We agree.
7
Having found there is some evidence to support the findings, we now review and
consider all of the evidence to determine if the verdict is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. In addition to the evidence
mentioned above, in summary form, according to the record:
• Although Meyer saw the cows standing at the leak site while licking
and sticking their noses in the surface, there is no evidence that the
cows actually ingested oil; or if they did, the quantity of the oil
ingested.
• Meyer guessed that five or six cows may have ingested oil but there
was no evidence identifying which cows may have ingested oil.
• Dr. Skaggs and Dr. Halliburton testified there are numerous factors
which can cause cows to abort calves, but there was no evidence
showing the quantity of oil required to cause a cow to abort her calf.
• Dr. Skaggs and Dr. Halliburton testified that numerous potential
causes of the abortions were not ruled out by testing.
• Lab results were inclusive for oil exposure.
• Afterbirth of cows was not tested for traces of petroleum.
• Lab results of the three cows tested did not indicate oil exposure and
no oil found in stool samples.
• Dr. Skaggs testified the initial effect of oil ingestion causes cattle to
stumble and slobber and have muscle seizures and spasms; however
there was no evidence of this behavior.
• Blood test revealed the cows were low in protein and magnesium and
other minerals. Results showed poor nutrition which could have been
a factor.
• Dr. Skaggs admitted that based on the lab results, oil exposure would
be impossible to prove.
• Dr. Halliburton concluded that to a reasonable veterinary certainty, he
could not testify it was more likely than not the Meyer’s cows aborted
calves or died due to the oil ingestion.
8
Hinkle was not required to establish causation by a scientific certainty or exclude
every other possibility. Purina Mills, 948 S.W.2d at 936. However, because the evidence
suggests that several conditions or events could have caused the cows to abort their calves
and where, as here, circumstances are consistent with either of two or more facts and
nothing shows that one is more probable than the other, neither fact may be inferred. See
Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 197 (Tex.App.– Amarillo 1999, pet.
denied). Considering all of the evidence as a whole, we find the evidence factually
insufficient to support a finding that in reasonable probability the ingestion of the oil by the
cows caused injuries to them. Accordingly, Duke’s second issue is sustained.
Having sustained Duke’s second issue and concluded that the judgment of the trial
court must be reversed and the cause remanded, we do not address the remaining issues
and cross-points because further review is unnecessary, Tex. R. App. P. 47.1, and could
amount to an advisory opinion. Valley Baptist Medical Center v. Gonzalez, 33 S.W.3d 821,
822 (Tex. 2000).
Accordingly, we affirm that part of the judgment that Eddith M. Hinkle recover the
sum of $1,000 for damages to her land and related attorney’s fees in the amount of $3,186
from Duke; otherwise, in all other respects, the judgment is reversed and the cause is
remanded to the trial court for further proceedings.
Don H. Reavis
Justice
9