Crosstex North Texas Pipeline, L.P. v. Andrew Gardiner and Shannon Gardiner

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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OPINION
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I. Introduction
In six issues, Appellant Crosstex North Texas Pipeline, L.P. appeals the
trial court’s judgment awarding Appellees Andrew and Shannon Gardiner over $2
million in damages for negligent nuisance. We reverse and remand.
II. Background
Between 1997 and 2002, the Gardiners bought two adjacent tracts of
property—a sixty acre tract and a thirty-five acre tract—next to the horse farm in
Denton County where they worked so they could ride their horses, run their
cattle, enjoy the peace and quiet, and hold the land as a long-term investment for
development. Farm-to-Market Road 1385 (FM 1385) borders the Gardiners’ land
on two sides.
In 2005, Crosstex, which gathers, transports, and delivers natural gas to
public utilities and other interstate pipelines, bought around twenty acres on FM
1385 across from the Gardiners’ land. In 2006, it obtained a pipeline easement
from the Gardiners and then built on its land a compressor station that became
operational in May 2007. The Gardiners sued Crosstex for intentional and
negligent nuisance, negligence in the installation and operation of the
compressor station, and gross negligence. The trial court granted a directed
verdict to Crosstex on the negligence cause of action, and ten of twelve jurors
found Crosstex liable for negligent nuisance and awarded the Gardiners
$2,042,500 in damages. This appeal followed.
III. Evidentiary Sufficiency
In its first issue, Crosstex argues that the evidence is legally and factually
insufficient to support the jury’s finding that it negligently created a nuisance.
The Gardiners respond that Crosstex was negligent in owning a station that
created a nuisance for the area in which it was located.
2
A. Standards of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
3
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).
B. Negligent Nuisance
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.” Barnes v. Mathis, 353 S.W.3d 760, 763 (Tex. 2011)
(citing Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004)).
An actionable nuisance may arise from an invasion of another’s interests
attributable to activity that is intentional, negligent, or abnormal and out of place
in its surroundings. Mathis v. Barnes, 377 S.W.3d 926, 930 (Tex. App.—Tyler
2012, no pet.); see also City of Tyler v. Likes, 962 S.W.2d 489, 503–04 (Tex.
1997). Although not all nuisances are grounded in negligence, when negligence
has created or contributed to the creation of a nuisance, the plaintiff must allege
and prove a legal duty owed to the plaintiff, a breach of that duty by the
defendant, and damage proximately resulting from the breach. Sage v. Wong,
720 S.W.2d 882, 885 (Tex. App.—Fort Worth 1986, writ ref’d n.r.e.); Wales
Trucking Co. v. Stallcup, 465 S.W.2d 444, 447 (Tex. Civ. App.—Fort Worth)
(“[W]here the act or condition in question can become a nuisance only by reason
of the negligent manner in which it is performed or permitted, no right of recovery
is shown independently of the existence of negligence.” (quoting 41 Tex. Jur. 2d
4
591, § 17)), rev’d, 474 S.W.2d 184 (Tex. 1971);1 see Weingarten Realty
Investors v. Universal Servs. Co., No. 01-96-01400, 1997 WL 689435, at *6 (Tex.
App.—Houston [1st Dist.] Oct. 23, 1997, pet. denied) (not designated for
publication) (stating same); Columbian Carbon Co. v. Tholen, 199 S.W.2d 825,
828 (Tex. Civ. App.—Galveston 1947, writ ref’d) (stating same). 2
1
In Stallcup, by the time of the trial, the plaintiffs had abandoned any claim
based on negligence; at the conclusion of the trial, the jury found, among other
things, that the trucking company had notice of the damage resulting from the
nuisance and continued the nuisance after having such notice, and we held that
a nuisance was created regardless of the care exercised. 465 S.W.2d at 445–
46, 448. That is, we essentially concluded that this nuisance fell under the strict
liability, or abnormal-and-out-of-place, theory of nuisance. See id. at 448. The
supreme court disagreed with our resolution, concluding that despite the severe
dust that covered the plaintiffs’ house “like snow,” when the trucking company’s
temporary activity—around 825 round-trips over a four-month period—involved
using a public road, the facts did not warrant a holding of nuisance without fault.
474 S.W.2d at 185–87, 189 (noting that there was no unlawful, malicious, or
negligent conduct in the case).
2
In its third issue, Crosstex argues that the trial court’s judgment should be
reversed because there was no finding that Crosstex’s use of its property was
unreasonable. However, the elements of negligent nuisance do not include
unreasonable use. Sage, 720 S.W.2d at 885; see City of Princeton v. Abbott,
792 S.W.2d 161, 166 (Tex. App.—Dallas 1990, writ denied) (op. on reh’g)
(stating that when an invasion is intentional, liability depends upon whether it is
unreasonable); Bily v. Omni Equities, Inc., 731 S.W.2d 606, 612 (Tex. App.—
Houston [14th Dist.] 1987, writ ref’d n.r.e.) (“When the [nuisance] invasion is
intentional, liability depends upon whether the invasion was unreasonable. If the
invasion is unintentional, liability depends upon whether the defendant’s conduct
was negligent, reckless, or abnormally dangerous.” (citations omitted)); see also
16 Allen Gardner, Texas Practice Series: Elements of an Action § 41:1 (2013)
(linking “unreasonable” with intentional nuisance); Restatement (Second) of Torts
§ 822 (1979) (same); Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC
12.2B (2012) (omitting any mention of unreasonable use in pattern jury charges
for both negligent and intentional private nuisance). We overrule Crosstex’s third
issue.
5
Liability for a negligent activity simply involves doing what a person of
ordinary prudence would not have done or failing to do what a person of ordinary
prudence would have done in the same or similar circumstances. See
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.
1998). Likewise, liability for negligent nuisance depends on whether the
defendant acted as a person or party of ordinary prudence would have under the
same circumstances in a legitimate use of his property. See Gulf, C. & S.F. Ry.
Co. v. Oakes, 94 Tex. 155, 163, 58 S.W. 999, 1002–03 (1900) (holding that
railroad company was not liable for creating a negligent nuisance when it planted
Bermuda grass that spread to neighboring property and facts failed to show that
this was not a legitimate use of its property); see also Turner v. Big Lake Oil Co.,
128 Tex. 155, 157–58, 96 S.W.2d 221, 221–22 (1936) (holding that for the
plaintiffs to recover because the oil-well-operating defendants “permitted salt
water to overflow their land, kill the vegetation, and pollute the water of their
livestock, ‘they must allege and prove some specific act of neglect or must allege
and prove that the water polluted was a water course’”); Humble Pipe Line Co. v.
Anderson, 339 S.W.2d 259, 260, 265 (Tex. Civ. App.—Waco 1960, writ ref’d
n.r.e.) (holding that negligence was an essential element of the plaintiffs’
nuisance cause of action against pipeline company for its pipeline having leaked
and polluted their water well because pipeline did not constitute a nuisance per
se);3 Tex. Lime Co. v. Hindman, 300 S.W.2d 112, 122 (Tex. Civ. App.—Waco
3
A nuisance per se is an act, occupation, or structure that is a nuisance at
6
1957) (“[I]t has been held that where a thing is not a nuisance per se but can
become a nuisance only by reason of the negligent manner in which it is
performed or permitted, no right of recovery is shown independently of the
existence of negligence.”), aff’d, 157 Tex. 592, 305 S.W.2d 947 (1957).
C. Analysis
With regard to their negligence claim, the Gardiners pleaded,
Defendant has a duty to use due care in the use of its property
or the conduct of its business to avoid injury to others. Defendant’s
actions in installing and operating a gas compressor station that is
extremely loud and causes vibrations and a roaring noise is a
breach of this duty, which has proximately caused, continues to
cause, and will in the future cause injury to Plaintiffs.
With regard to their private nuisance claim, the Gardiners alleged,
Defendant’s intentional and unreasonable and/or negligent
actions have created a permanent private nuisance damaging
Plaintiffs’ Tracts. Defendant’s actions are regular and constant and
likely to continue. Alternatively, Defendant’s actions have created a
temporary private nuisance damaging Plaintiffs’ Tracts. Defendant’s
actions have created a condition that substantially interferes with
Plaintiffs’ use and enjoyment of their land. The interference is
all times, under any circumstances, and in any location or that violates a state
statute or municipal ordinance declaring the activity to be a nuisance per se;
neither the lawful use of property nor the lawful conduct of a business is a
nuisance per se. Baker v. Energy Transfer Co., No. 10-09-00214-CV, 2011 WL
4978287, at *6 (Tex. App.—Waco Oct. 19, 2011, pet. denied) (mem. op. on
reh’g); Maranatha Temple, Inc. v. Enter. Prod. Co., 893 S.W.2d 92, 100 (Tex.
App.—Houston [1st Dist.] 1994, writ denied). A nuisance in fact is “‘an act,
occupation, or structure that becomes a nuisance by reason of its circumstances
or surroundings.’” City of Dallas v. Jennings, 142 S.W.3d 310, 316 n.3 (Tex.
2004) (quoting Maranatha Temple, 893 S.W.2d at 100). In Baker, the Waco
court upheld summary judgment for the gas company on the plaintiffs’ negligence
and nuisance claims when, among other things, none of the plaintiffs’ affidavits
addressed the breach of any duty. 2011 WL 1978287, at *4–7.
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substantial and would cause unreasonable discomfort or annoyance
to a person of ordinary sensibilities attempting to use and enjoy the
land. Defendant’s actions are unreasonable under the
circumstances. Defendant’s actions have caused Plaintiffs’ Tracts to
be devalued, have caused Plaintiffs annoyance, personal discomfort
and inconvenience, and have lessened their enjoyment of Plaintiffs’
Tracts.
Immediately before the charge conference, the trial court granted a
directed verdict to Crosstex on the Gardiners’ negligence claim, stating,
“[C]ounsel has been able to cite the Court to no authority which creates a duty
under a common-law negligence cause of action under the circumstances
presented. So a nuisance cause of action will be the only cause of action
submitted to the jury.”
The record reflects that, having granted the directed verdict on the
negligence claim, the trial court also had doubts about submitting the negligent
nuisance issue, observing during the charge conference that he did not see a
duty but would nonetheless submit the question to the jury.4 The trial court
presented the following question (Question 2) on negligent nuisance to the jury:
4
The threshold inquiry in a negligence-based case is whether the
defendant owes a legal duty to the plaintiff, and the plaintiff must establish both
the existence and the violation of a duty owed to the plaintiff by the defendant to
establish liability in tort. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). The determination of a duty involves the balancing of a variety of
factors, including the risk, foreseeability, and likelihood of injury, and the
consequences of placing the burden on the defendant. Allen Keller Co. v.
Foreman, 343 S.W.3d 420, 425 (Tex. 2011). The test for foreseeability is what a
party should, under the circumstances, reasonably anticipate as a consequence
of its conduct. Foster v. Denton ISD, 73 S.W.3d 454, 465 (Tex. App.—Fort
Worth 2002, no pet.). Duty is a question of law determined from the facts
surrounding the occurrence in question. Centeq, 899 S.W.2d at 197; see also
8
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
circumstances 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.
1. Before the Compressor Station: February 2005–January 2006
From February 2005 to January 2006, Crosstex sought a pipeline
easement across the Gardiners’ land for its North Texas Pipeline, a twenty-four
inch transmission pipeline that would run 130 miles from Tarrant County to Paris,
Texas. The Gardiners’ property, bounded by FM 1385 at the corner that
connected 380 and 455 (the end of the Tollway), was pasture, and Andrew ran
his cattle on it. Andrew said that before the compressor station was built, he had
enjoyed being out on his property in the mornings before work, during his lunch
hour, and after work, riding his colts or working on fences until it got close to
Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). But cf. Fort Bend Cnty.
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991); 70 Tex. Jur. 3d Tort
Liability § 8 (2014) (stating that whether a duty exists between the parties is a
question of law when all of the essential facts are undisputed but that when the
evidence does not conclusively establish the pertinent facts or the reasonable
inferences to be drawn therefrom, the question becomes one of fact for the jury).
9
dark. Andrew had and continued to have an agricultural exemption on the
property.
JEH Stallion Station, the commercial racehorse breeding farm where
Andrew and Shannon worked, was located on the other side of the Gardiners’
property.5 A flea market and an RV park were located adjacent to FM 1385, and
some residences were located on nearby Mustang Road and Cotton Trail.
Andrew testified that before the compressor station started operating, his
property was peaceful and quiet, with the sounds of an occasional car, birds,
calves, “just the usual country sounds.” G.A. Moore, who lived on Mustang Road
on property adjacent to the tract Crosstex purchased in 2005, and Brian Lynn,
who lived two doors down from Moore, agreed with Andrew’s description. Moore
said that besides coyotes howling and the occasional train going by, before the
compressor station started operating, there “really was not any sound out there,
hardly.” Lynn said that before mid-May 2007, his property had been peaceful
and quiet with occasional traffic noise. Gerald Slater, the Gardiners’ real estate
appraisal expert, described the area as a quiet, peaceful rural neighborhood
before the compressor station started operating.
Crosstex’s original easement plans required its pipeline to bisect the
Gardiners’ property, but it ultimately re-routed the easement so that the pipeline
only intersected the property’s corner. In June 2005, one of Crosstex’s agents
5
Shannon and Andrew had previously lived on JEH Stallion Station’s
property but moved before the compressor station’s construction.
10
noted that Andrew’s “main concern” was his property’s value because he
intended to sell it in the future. In July 2005, Crosstex researched whether there
was any existing zoning or other restrictions “around the area of [its] proposed
Compressor Station Site off of FM 1385” and found that there were no zoning or
planning restrictions in that part of the county.6 Andrew testified that as of July
2005, he had told Crosstex of his “intended use of the property.”
Brad Iles, Crosstex’s vice president of corporate development, 7 testified
that when Crosstex designed the North Texas Pipeline, it considered where it
might place a future compressor station. Iles had no personal involvement in the
site selection for the compressor station at issue but had been involved in other
compressor station site selection projects and in routing pipelines for Crosstex.
He did not know whether there had been any other prospective sites on FM 1385
in July 2005 but was not aware of any other pieces of property that Crosstex had
actually purchased on FM 1385 or anywhere else for the compressor station’s
possible location. Iles said that at that point, Crosstex referred to the station as
“proposed” because it did not know how productive the Barnett Shale would be
and whether a compressor station was going to be needed.
6
Shannon acknowledged that no zoning restrictions applied to the
Gardiners’ pasture or the Crosstex property.
7
Iles testified that he had worked for Crosstex for around eight years,
starting as a project engineer on building pipelines, compressor stations, and
plants and then moving to manager of engineering, director of engineering, and
vice president of business development before attaining his current position.
11
On September 15, 2005, Crosstex bought 19.42 acres on the west side of
FM 1385 and north of Mustang Road.8 A Crosstex agent met with Andrew on
September 20, 2005, and offered him $13,000 per acre for the easement.
Andrew told the agent that he had talked with some friends about the pipeline
going across his property and “how it would play out in his plans for developing
tract,” that they had all agreed it would not be the best thing for them, and that
money was not the issue. Andrew told the agent that if he was forced to let the
easement go through his property, he would not take anything less than $25,000
per acre. In November 2005, Andrew initially refused Crosstex’s offer of $15,000
plus damages for the easement and told Crosstex that “this corner easement
[would] ruin his property,” and that they would “just have to battle it out!”
After Crosstex informed Andrew that he could either accept the easement
on the southwest corner of his property or it would start eminent domain
proceedings, Andrew granted a fifty-foot wide permanent easement—a fifth of an
acre—to Crosstex in exchange for $15,000 ($75,000 per acre) and $1,500 for
surface damages in January 2006.9 The easement from the Gardiners was one
8
Crosstex bought the property from one of Moore’s relatives. Moore said
his relative did not know what Crosstex planned to do with the property and that
Crosstex told Moore that it was going to use its property for storage. Moore did
not know about the compressor station until after Crosstex acquired an easement
from him and “right before they started putting [the station] up.” Iles said that
Crosstex could have used the tract as a central location to store pipe and other
materials and as a staging area for its contractors.
9
Andrew said that it had never occurred to him that Crosstex was willing to
overpay for the easement rather than have to reroute its pipeline but
12
of the last that Crosstex acquired. Iles said that he did not think Crosstex should
have notified the Gardiners in 2005 or January 2006 during the easement
negotiations that a compressor station might be placed across the street
someday because Crosstex did not have enough information at that point to do
more than hope it would be needed.
The North Texas Pipeline went into service in early 2006. In June 2006,
Crosstex acquired a gathering system, which gave it exposure to a larger area of
the Barnett Shale. Iles said that at that point, it would not have done any good to
tell the Gardiners about the compressor station because Crosstex already had
the property on FM 1385 and did not “have the capability of just building this
compressor station anywhere [it] want[ed]” because of hydraulic limitations on its
location on the pipeline.10
Seven individuals, including Crosstex’s CEO Barry Davis and then-CFO
William Davis,11 signed off on the expenditure authorization for the compressor
station between August 21, 2006, and September 25, 2006. In late 2006,
acknowledged that Crosstex paid him in excess of the easement’s fair market
value.
10
Iles testified that the compressor station had to be built in the general
area where the line started to run out of pressure to push the gas further down
the line and that capacity can be added to a pipeline already in service by adding
pressure—“the higher the pressure, the more compressed the gas is, the more
gas you can move down that pipe.”
11
The Gardiners called Davis, Crosstex’s chief operating officer (COO) at
the time of the trial, as an adverse witness.
13
Crosstex started building the compressor station on FM 1385, across the street
from the southwest side of the Gardiners’ property.
The trial court admitted Plaintiff’s Exhibit 14, which showed the August 17,
2006 budgeted total cost of the North Texas Pipeline Expansion Project, which
included the FM 1385 compressor station along with another station installation,
as $16,100,000. The “base case” return on investment for the project was 17.8%
and cash flow of $2.9 million for the first year and the expected case return on
investment was 41.2%, and $6.6 million for the first year.12 The chart showing
the nature of the $15,780,900 investment in the compressor station had line-item
amounts for, among other things, pipe, valves, fittings, compressors, a generator,
motors, electrical equipment, and buildings but no specific line item for noise or
sound abatement. Contingencies were listed as “contained within costs above.”
Davis stated that noise abatement might have been included under “building” but
that he did not know because he did not recall anything about the project.
Dean Mueller, Crosstex’s director of operations for Texas, stated that
every gas compressor station makes noise, caused by the motion of
12
Regarding the projected expenditure for the compressor station in August
2006, Iles said that the expected cash flow under the base case would not have
paid for the station’s construction and would have been short by $13 million.
Under the expected case, Crosstex still would have been short $10 million.
Crosstex was not projected to make money on the station in the first years of its
operation. However, Iles agreed that if the assumptions in the August 2006
projections came true, Crosstex would have gotten all of its money back in four
or five years under the base case and under the expected case, would have had
the investment paid off in two or three years. He did not know if the station had
been paid off yet.
14
reciprocating mechanical equipment. To his knowledge, Crosstex had always
intended to put a building over the compressors. Mueller became familiar with
the compressor station at issue when he was Crosstex’s area superintendent
and stated that the compressor station was a booster station, used to boost the
pressure on the gas so that it could be delivered down a long section of pipe to
reach the end users—public utilities and electric generation facilities. He said
that it was impossible to transport natural gas in Texas or to have domestic
drilling without compressor stations. Iles testified that the North Texas Pipeline
could carry substantially more gas with the compressor station in operation—
from the original 250 million BTUs per day without it to 375 million BTUs per day
with it—but could still operate without it. He also stated that if Crosstex had not
expanded the pipeline, gas producers in the area might not have been able to
produce as many wells and some of them might have been stranded without a
place to take their gas.
2. Compressor Station Operations, May 2007–May 2008
The compressor station started operating in May 2007. Plaintiff’s Exhibit
18, the compressor station log, shows the dates that the four units came online:
Units 2 and 3 came online on May 18, 2007; Unit 1 came online on May 22,
2007; and Unit 4 came online on May 27, 2007.
When it began operating, Andrew described the station as “basically the
raw equipment and machinery” without a covering. He described the sound and
machinery as follows:
15
[I]t’s more of a roar than it is any kind of hum or anything else. It’s
similar—well, bottom line is what that is is four huge diesel[13] motors
the size of—bigger than mobile homes. So if you can imagine four
diesel motors that size running, I mean, that’s what you’ve got. I
mean, there’s—the noise varies considerably. There’s times that
you close your eyes and think a train was running by a ways off, but,
you know, again, it’s a constant roar that comes from that station.
Mueller stated that Crosstex began operations with hospital grade mufflers, that
mufflers were standard equipment on compressors, and that the mufflers caused
Crosstex to “lose a little bit of performance.”14
Jill McMillan, Crosstex’s public relations specialist who became the
Gardiners’ contact for complaints about the compressor station, visited the area
around May 18, 2007, not long after the compressor station began operating two
of its engines. She wrote “bad” or “not bad” by addresses in the area and
designated most of the addresses “bad.” In the notes she later typed up,
McMillan described the areas closest to the compressor station site as “NOISE
VERY LOUD.” McMillan testified that she substituted this for “bad” because she
wanted to grab management’s attention; she agreed that the noise was louder
13
Mueller testified that the station’s engines ran on the pipeline’s natural
gas, not diesel.
14
Mueller said that there were several different muffler grades—regular,
hospital, and critical or supercritical. Hospital grade mufflers were installed
before the compressor station engines started up; Mueller said that he believed
that they were called “hospital grade” because that was the kind of noise
mitigation “you would expect to have around a hospital setting.” In contrast,
Crosstex’s expert witness Donald Behrens testified that “hospital grade” would be
something a particular manufacturer would label a muffler, not a particular model
of muffler.
16
than it should have been and what Crosstex had proposed it to be and that it
would need further mitigation. McMillan stated that before Crosstex started noise
mitigation, one had to scream to be heard when standing near the street that
bordered the station but that she did not think the noise was anything that would
obstruct any day-to-day home activities.
On June 8, 2007, Andrew signed a letter to Crosstex, stating that property
owners were concerned about the noise pollution and reduction in property
values and that Crosstex could resolve these concerns through
the implementation of a fully enclosed metal building with sound
absorbing insulation and a twelve (12) foot sound wall around the
perimeter of the station.
....
All across the country, companies have constructed full metal
buildings around these motors, that include sound absorbing
insulation as well as twelve (12) foot tall sound walls around the
perimeter to help absorb the noise. A partial metal building will not
offer the solution that land owners and residence owners are
requesting. Additionally, a building without noise reducing insulation
will not appease land owners and residence owners alike.
In summary, the only amenable solution at this point is for
Crosstex to erect a fully enclosed metal building with sound
absorbing insulation and a 12 foot tall sound wall around the
perimeter of the substation. Obviously the building would need to be
aesthetically pleasing to the eye, with the necessary landscaping.
Andrew testified that he did not write the letter himself but that he signed it and
sent it to Crosstex. Shannon signed a separate copy of the same letter; both
Andrew and Shannon used the JEH Stallion Station mailing address.
17
On June 19, 2007, Andrew and around thirty to fifty other area landowners
went to the “Central Compressor Station Homeowner Meeting” held at a nearby
church. Crosstex provided an agenda for that meeting, on which it listed “Central
Compressor Station Project Overview,” and “Discuss next steps to mitigate
concerns.” The agenda listed the Crosstex representatives present as its senior
vice president of engineering and operations, its vice president of shared
services, a public relations specialist (McMillan), a director of operations, a senior
engineer, the local plant operator, and a safety specialist.
Mueller said that when Crosstex began receiving complaints from the
Gardiners in June 2007 regarding the noise, the station’s industrial nature and
appearance, and their property values, Crosstex immediately began talking with
the Gardiners and hired sound consultants to perform sound surveys and studies
to check the noise readings in the area. Mueller explained that Crosstex did not
believe that there was a sound issue regarding the Gardiners’ property because
“[a]t that time and currently that property . . . is pastureland with no residents on
that property,” and Crosstex did not think there was a sound issue to the
livestock that were on the pasture property.
Mueller testified that Crosstex installed “quite a bit of sound mitigation at
that station” because it had tried to work with the Gardiners. Mueller said that the
compressor building was installed first,15 then sound-absorbing blankets were
15
The trial court admitted photographs taken on July 24, 2007, that show
construction of a barn-like building around the compressor station equipment.
18
installed inside the compressor building and three sound walls around the
coolers (also referred to as fans), an additional sound wall on the east side, and
air intake silencers.
Behrens, president of Behrens and Associates, an acoustical consulting
firm, and Environmental Noise Control, the division of his firm that did sound
control mitigation,16 testified that Crosstex hired his firm in 2007 to look at the
compressor station and make recommendations to control the sound level. 17
Behrens prepared noise impact computer models of the noise levels after the
station first started operating. One of the models was of the compressors sitting
out in the open with no building and showed a 70-decibel noise level.18 Another
model was the building with sound blanket skirts and showed that a small portion
of the Gardiners’ property would still experience the 70-decibel sound level. The
third model was of a sixteen-foot-high free-standing sound wall thirty feet from
the compressor building. Behrens did not have access to the Gardiners’ property
Mueller testified that the engines were set first and then the building was installed
in August because the summer was rainy, despite original plans to have it up and
in service in the June/July time frame.
16
Behrens stated that his firm performed sound measurement, monitoring,
and control for industries from oil and gas (80% of their work) to television,
motion pictures, industry, municipalities, construction, and special events.
17
Crosstex also hired Behrens to perform sound testing on the Gardiners’
property and to testify.
18
Behrens said that a 70-decibel level was acceptable for land uses like
amusement parks, property adjacent to an interstate, or a transportation hub.
19
when he made the models and said that his December 2010 sound level
measurements were a better indicator of the sound levels on the Gardiners’
property than the models.
Behrens testified that his company had built and installed buildings that
completely enclose gas compressor stations, including the fans, depending on
the client’s design. He agreed that those buildings were quieter than the
compressor station at issue but were typically more expensive. Behrens agreed
that one of the ways Crosstex could have addressed the noise issue at the
beginning was by putting a fully enclosed building around the compressor station
instead of what it actually built. However, he also testified that he had never
recommended to Crosstex to put a fully enclosed building around the compressor
station because
[t]here was a pasture in all directions, all four sides. There were no
homes, there were no occupied structures, parks, endangered
species, habitats or any of the other motivations that would drive us
to recommend doing that kind of sound control in a rural area
without people living anywhere near it.
Behrens stated that his company would have made more money if it had
recommended a fully enclosed building to Crosstex because it would have been
more expensive for Crosstex and more profitable for his company to have built a
structure instead of the sound walls.19 Behrens testified that his sound level
19
Behrens testified that the total amount Crosstex had or would pay him
related to the compressor station was around $425,000, including sound
mitigation, recordings, and testimony. Behrens acknowledged that over the last
five years, he had been paid several million dollars by Crosstex and millions
20
measurements at the streets in front of the houses in the area “did not warrant
the need for sound control because of the low levels of the sound levels.”
Mueller acknowledged that the compressor station’s metal building did not
go all the way to the ground but that the sound blankets inside go all the way to
the ground on the east side and the west side and that the secondary eastern
wall, installed in November 2011, covered where the building did not go all the
way to the ground on the east side. Technicians from Behrens’s firm measured
the building and custom-fabricated sound barrier/absorber acoustical panels
(sound blankets) to close the bottom seven feet of the building on the north,
west, and east sides of the structure. Behrens said that the blankets typically
take three to five weeks because they are made of a polyvinyl chloride (PVC)
shell filled with acoustical batting and a barrier material.
Andrew and Shannon both acknowledged that Crosstex made some
changes to the compressor station after the June 19, 2007 meeting but said that
the changes did not happen all at once, and they continued to complain about
the noise as Crosstex made the changes. Andrew testified that when he took his
young son riding, when they got close to FM 1385, his son had trouble with his
horse. Andrew said that the third time he tried to tell his son what to do, “it finally
clicked” that his son could not hear him, and he found that very frustrating.
more by other gas companies for work on their stations. In 2011, Crosstex
represented approximately 5% of his company’s revenue.
21
Andrew also said that his cattle and sheep could not hear him honk his horn to
announce feeding time.
Copies of the Gardiners’ email exchanges with McMillan were admitted as
Plaintiff’s Exhibits 41 and 43 and Defendant’s Exhibit 57. On October 23, 2007,
at 2:01 p.m., McMillan sent Andrew an email, stating,
Thanks for calling earlier regarding the noise abatement at our
Central Compressor Station. As communicated earlier, after we
finished the noise level survey and determined the appropriate type
of noise ab[ate]ment, we’re finishing the construction of the building
and adding noise abatement material to the building.[20] In addition
to that, we’re going to construct a 12 ft. sound wall around the fans
of the compressor building. We plan to have this complete in the
next 3–4 weeks.
Once I receive a picture of what the sound wall will look like, I
will forward to you.
I appreciate your patience and want to work with you to
address your concerns. Please call me or email me with further
questions and I’ll send you photos shortly.
On November 8, 2007, at 7:36 p.m., Andrew sent McMillan an email that
stated,
When I spoke with you on October 29, 2007 with concerns
relating to the excessive noise coming from the compression station,
you informed me that noise reduction measures would be in place by
November 19, 2007. Your exact words were three weeks. I see no
measures being taken thus far. I will be hiring an attorney to pursue
legal action against Crosstex once the November 19th deadline
passes if in fact there are no measures in place at that time. As it
20
Shannon testified that when Crosstex first built the metal building around
the compressor station, “it seems like they didn’t put the [sound-absorbing]
blankets” in and seemed to make the noise worse until the sound-absorbing
blankets were installed.
22
seems clear at this juncture, that Crosstex is not interested in
minimizing the disturbance at hand.
McMillan replied on November 9, 2007, at 10:29 a.m., stating,
Thanks for getting in touch with me. We’re still on schedule
and plan to auger foundations and pour concrete today, let it set
over the weekend and begin steel erection on Monday. We’ve
received all of the sound blankets and noise abatement material and
will proceed to erect them as soon as the steel is hung. All work will
be complete by the end of the week.
Additionally, we’re planting trees and shrubs along FM 1385
and the Central Compressor Station to visually enhance the facility.
We will begin this process next week at Central and should be done
by the end of the week.
As noted in my previous message, we’re still on track and will
complete everything noted in my previous email.
If you have any further questions, please let me know.
On November 26, 2007, at 10:05 a.m., Andrew sent McMillan an email that
stated, “Could you please explain why the wall is not going to be constructed on
the side (east) directly across from my property?” McMillan replied the same
day, at 12:30 p.m., stating,
The building wall interior on the east side will be lined with
sound absorbent material, as will both the west and north sides of
the building. The purpose of the exterior wall on the south side is to
abate the noise from the compressor cooler fan which cannot be
addressed by lining the building wall. In addition we will begin
installation of vegetation tomorrow at the Pilot Point location. It will
be installed adjacent to the fence along the east property line.
Andrew responded at 1:57 p.m., stating,
I understand your e-mail. However, my question is . . . why is there
not an exterior wall being built on the east side of the compressor
23
fans, as there is on the south and west sides of the fans.[21] The side
exposed to my property is the only side not being enclosed. In other
words, there is nothing to abate the sound between my property and
the fans.
Behrens testified that the sound blankets, which were installed on the east,
north, and west sides of the building, and installed inside the sound walls, cost
between $20,000 and $30,000, and changed the overall sound level emanating
from the compressor station. Shannon stated that she did not think the sound-
absorbing blankets fixed the problem and that after Crosstex installed the sound
walls on three sides, she felt like the noise became louder because there was no
wall on the Gardiners’ side.
On January 14, 2008, at 10:21 p.m., Shannon sent an email to McMillan,
stating,
This email comes out of pure frustration. I am working late
tonight and cannot even concentrate due to the noise and vibrations
that I am hearing and feeling in my office from the Crosstex
Compression station on F.M. 1385. My office is directly east of the
substation (approximately 1 mile east). As things currently stand at
the Crosstex substation, the walls that have been erected on the
North, Sounth [sic] and West sides have effectively funneled 100%
of the noise in an easterly direction. Tonight it sounds as if a
helicopter is hovering. . . . We have waited patiently for results to
reduce the noise and apparently, Crosstex is not willing to work with
us. I have spoken with an attorney who specializes in this area. We
have been advised of the statute of limitations and stand ready to
proceed. We do not desire a lawsuit, but if that is the only way to
preserve and pursue this issue, then you leave us no choice.
21
Behrens’s firm added 310 lineal feet of 30-foot high sound wall on the
west and south sides of the compressor fans for $194,000 on November 30,
2007.
24
Shannon said that by sending the email, she was trying to get McMillan’s
attention and that what they wanted was for the noise to go away. Shannon
agreed that she was not acting on behalf of JEH Stallion Station when she sent
the email and that JEH Stallion Station had not brought a claim against Crosstex
for interfering with the company’s operations.
At some point after Shannon’s January 14, 2008 email, Behrens’s firm built
the sound wall on the east side of the compressor station’s fans for $67,000. 22
Shannon stated that the installation of the east side sound wall did not reduce or
did little to reduce the noise or vibrations, while Behrens stated that in his
opinion, it was effective in reducing the sound from the cooler fans.
Mueller testified that the cooling fans protrude from the building to provide
cooling for the engines. The sound walls were staggered on the south side to
facilitate air flow in summer, when the prevailing wind came out of the south.
Mueller said that the engines could not operate without adequate air flow, which
was why Crosstex was hesitant about enclosing its fans with sound walls.
Mueller explained that the east wall was installed after the south, west, and north
walls because, due to the sound mitigation readings, Crosstex did not believe
there was a major issue there regarding the side facing the pasture and because
of its concerns about completely enclosing the cooler fans. Mueller said that
22
Andrew testified that a wall was eventually built on the east side “[s]ome
months later” and only after his complaint. Andrew testified that he complained
over ten times to Crosstex about the noise since the station began operating in
May 2007.
25
Crosstex had experienced some operational issues at the station because of the
sound walls around the compressor fans but that it had installed mitigation on the
east side of the station because it wanted to satisfy the Gardiners and avoid
litigation.
On March 8, 2008, Shannon sent McMillan an email with an attached
demand letter from Andrew that stated, in pertinent part, “This letter comes to
you in regards to the Crosstex Compression Station located directly across from
my property on F.M. 1385. As we have discussed on numerous occasions, the
noise being emitted by the station remains to be a constant deafening noise.”
Andrew informed McMillan that he had consulted an attorney and a valuation
expert and was seeking damages for the difference between the fair market
value he estimated for the property before the compressor facility was built
($2,372,500) and after ($711,750). On March 31, 2008, Andrew and Shannon’s
law firm sent Crosstex a letter to inform it that the Gardiners had received
Crosstex’s March 19, 2008 letter and that the Gardiners “do not believe that the
additional construction on the compressor station referenced in your letter will
ameliorate the damages Crosstex has caused to their property.” Andrew and
Shannon filed suit against Crosstex on May 5, 2008.
26
3. After the Gardiners Filed Suit
a. December 2010
Behrens testified that he conducted sound testing at the Gardiners’
property in December 2010 and that his sound readings were consistent with the
sound readings taken by the Gardiners’ expert, who did not testify and whose
report was not offered into evidence. The compressor station was operating at
the time Behrens took his readings—he went into the compressor building and
saw three of the four compressors running. He used three state-of-the-art
meters for the testing after calibrating them prior to deployment: Meter 1 was
placed just inside the Gardiners’ property, adjacent to the compressor station;
Meter 2 was placed approximately 1,200 feet from the compressor station; and
Meter 3 was placed near Mustang Road on the property’s south end. Meter 2
was in the grazing path of some animals that munched through the power cable
midway through the survey, but the other two meters recorded continuously from
Friday to Monday. The meters digitally recorded the sounds in .wav files.
Behrens said that to him, the compressor station was audible at Meter 1’s
location, inaudible at Meter 2’s location “except for a very faint tonal change,” and
completely inaudible at Meter 3’s location.
Behrens testified that after the testing, he retrieved the sound meters,
downloaded their information, saved the files, and then listened to them to
identify any “bumps” in the recordings—such as a car driving by or aircraft
overflight—to identify sources before preparing his report. Behrens said that the
27
compressor station represented a constant minimum sound level because it
would have to be shut off for that level to drop and that the engines ran at “an
extraordinarily stead[y] RPM and steady noise level.”
The trial court admitted the data recordings of Meters 1, 2, and 3. Behrens
played for the jury samples from Meter 1 that were taken at 4:45 p.m. on
December 10, 2010; 1:07 a.m. on December 11, 2010; and 9:19 a.m. on
December 12, 2010, and described the peak sound level as 60 decibels. 23
Behrens stated that he measured a sound level above 63 on the Gardiners’
property when vehicles drove past and that traffic noise affected both sides of the
Gardiners’ property. Behrens’s report states that as to Meter 1, the predicted
unmitigated level was 69 dBA, the predicted mitigated level was 60 dBA, and the
measured mitigated level was 60–63 dBA.
Behrens played samples from Meter 2 taken on December 10 at 1:40 p.m.,
on December 11 at 2:10 a.m., and on December 11 at 7:47 a.m. Behrens’s
report for Meter 2 states that the predicted unmitigated level was 56 dBA, the
predicted mitigated level was 49 dBA, and the measured mitigated level was 44–
23
Behrens testified that noise has a logarithmic increase: from 40 decibels
to 60 would result in the levels at 60 being four times as loud as the levels at 40.
Behrens also testified that wind and humidity can increase noise and that when
he took his sound readings on the Gardiners’ property, the wind was blowing
from the northwest to the southeast, resulting in sound levels higher than if he
had instead measured to the northeast of the site.
28
46 dBA.24 Behrens played samples from Meter 3 taken at 4:35 p.m. on
December 10, and 3:30 a.m. on December 11. Behrens’s report for Meter 3
states that the predicted unmitigated level was 56 dBA, the predicted mitigated
level was 46 dBA, and the measured mitigated level was 46–48 dBA.
Behrens testified that he was familiar with the American National
Standards Institute (ANSI) standards and recommended acceptability criteria for
land use, sound levels, and background sounds that experts in the field of
acoustics, including the Acoustical Society of America, considered to be reliable
authority. Behrens said that the ANSI standard suggested for livestock farming,
animal breeding, and ranching day-night sound level equivalent would be up to
65 decibels and marginally compatible up to 75 decibels. For quiet rural
residential areas, the maximum was 45 decibels. Behrens stated that this
maximum would not apply to quiet rural residential areas near busy roads, that
the Gardiners’ property did not have any residences on it, and that the property
had a busy road nearby.
Behrens testified that the readings that he took that were adjacent to the
compressor station at the fence line (Meter 1) fell within the “marginally
compatible” classification for livestock farming and that less than 100 feet from
the fence line would fall within the “compatible” classification. The readings he
24
For comparative purposes, Behrens testified that the decibel level in the
courtroom without playing the audio was “running about 45 decibels,” and when
he spoke, “goes upwards of 50, 57, 60.”
29
took from Meter 2 were compatible with ANSI standards for residential urban,
suburban, single-family, or extensive outdoor use; the ANSI level for residential
was 55 decibels. Behrens stated that every time the distance doubles, the sound
level is reduced by six decibels, so he estimated that at 600 feet away (halfway
between Meter 1 and Meter 2), the sound level would be between 50 and 52
decibels.
Behrens stated that based on all of the readings that he had taken in rural
areas of North Texas, sound levels could vary from the high 30s to the high 40s.
He opined that the readings he took at Meter 2 and Meter 3 were typical of what
the sound levels were like in most rural areas in North Texas and that the types
of sound levels he recorded on the Gardiner tract were acceptable and
reasonable for agricultural tracts and compatible with livestock use. Behrens
also stated that the majority of the property was still compatible for residential
use.
b. August 2011
The trial court admitted a video recording of the station during Andrew’s
testimony and allowed it to be played to the jury over Crosstex’s objections. The
video recording was taken in August 2011 from Andrew’s pasture at varying
distances from the compressor station and at varying times. The compressor
station is clearly audible, as are vehicles driving on FM 1385 between the
compressor station and the pasture. Crosstex asked that the record reflect the
30
volume level at which the exhibit was being played; the computer volume at trial
was set at 90%.25
Andrew witnessed Casey Gooden make the recording but did not know
Gooden’s qualifications, and neither he nor Gooden took any decibel readings
when Gooden made the video. Andrew admitted that he had never heard the
term “volume distortion” and that he did not know whether the video camera used
to make the recording had features that would create volume distortion.
25
Behrens brought his own equipment to play the audio recordings and
stated that the recordings could not be played with any accuracy regarding the
volume level at which they were recorded just by putting them in the computer
and playing them with the volume on 90%. Behrens also testified that with
regard to accurately recording sound, the gain control setting can either amplify
or quiet the sound that is recorded,
[a]nd so one of the things that you have—the biggest issue, of
course, is playback because it’s the same thing, you can turn volume
up or down on the playback. So the two concerns are, what kind of
sound is recorded when you do the video with the gain setting on the
audio feature? And then, of course, during playback, what is the
volume of the playback?
For example, I can make a pin drop hurt your eardrums by
adjusting both the gain during the video and the volume during the
playback. So you need to have controls, if you want to represent the
sound level that existed when you did the recording.
Behrens described the need for a calibration point to determine how loud the
sound was when the information was collected and at what volume to play it back
for equal representation of what was recorded, and for speakers with the full
range of octave, i.e., the ability to play lower frequency sound.
31
c. September 2011
Crosstex installed air intake silencers around September 201126 to “baffle[]
that air as it travels through the intake piping into the combustion engine.”
Mueller said that Crosstex had added the intake silencers because, as it had
from the beginning, it had tried to work with the Gardiners.
Behrens played a sound recording made from the shoulder of Mustang
Road west of the Gardiners’ tract, in the roadway by the driveway of the first
house, at 12:37 p.m. on September 28, 2011. The recording contained a car
going by with dogs barking in the background, and Behrens said that he could
not hear the compressor station when he took that recording. He also played a
sample recorded from Cotton Trail at 11:37 a.m. on September 28, 2011, which
started off at 37 decibels—lower than the volume of the courtroom.
d. November 2011
Behrens’s firm installed a fifteen-foot sound wall along the property line on
the east side of the building, in November 2011, for $107,000, which he said
further reduced sound from the station.27
26
While Behrens testified that Crosstex had installed the air intake
silencers before his December 2010 readings, Mueller said that he thought the
air intake silencers were installed in September 2011, and Crosstex’s receipt for
the intake silencers is dated September 2, 2011. Crosstex was invoiced
$41,048.40 for the silencers and other materials needed to make them work, with
an expediting charge for four-week delivery and a freight charge to follow.
27
Plaintiff’s Exhibit 191 shows that on November 4, 2011, Behrens’s firm
submitted its cost proposal for providing “approximately 122 lineal feet of 12 or
15 foot high Permanent Sound Wall at [the] Central Compressor Station,” with an
32
e. January 2012
The trial began in January 2012. Andrew said that the compressor
station’s droning and constant roar made it hard to relax but that it was worse in
some parts of his property than others.28 He further testified that the noise
substantially and unreasonably interfered with his enjoyment of the property and
had since Crosstex began operating the station and that it interfered with his
development plans for the property because no one would buy a house on a lot
that “has a constant 24-hour-a-day roar.” However, Andrew also stated that
when the noise complaints began, Crosstex began additional work on the
compressor station and was still doing more work six weeks before trial. Andrew
stated that although Crosstex had put in sound abatement material, constructed
more than one wall in front of the station, and taken lots of steps to mitigate the
noise, nothing Crosstex did changed the sound situation.29
Andrew also acknowledged that, as his June 8, 2007 letter requested,
Crosstex had built a building around the station with sound-absorbing materials
estimated lead time of one week and an estimated time to complete the
installation of three to five days.
28
Directing the jury’s attention to the photograph of his property, Andrew
stated, “I mean, yes, I’m not going to argue, it is bearable back here as far as
being out and about and possibly living out in here, but I mean, again, even here,
it’s an irritant to me.”
29
During cross-examination, Andrew said that the mitigation had “probably
reduced [the noise], obviously, some, but nowhere close to what [he] would
consider okay. And that’s what this whole issue is about.”
33
and sound walls and planted shrubs and trees between the station and his
property. When the first trees died, Crosstex replanted. During cross-
examination, Andrew agreed that his complaint was not that Crosstex did not do
the things he asked for but rather that those things had not worked to reduce the
noise to a level he found acceptable. He stated that he did not believe that
Crosstex had ever consciously disregarded his complaints.
Shannon stated that she had gone to their property the night before her
testimony and heard the compressor station roaring and that the noise had not
significantly improved since she sent her January 14, 2008 email to McMillan
almost four years before. Shannon said that Crosstex’s mitigation efforts had not
solved the noise problem because she could “still hear it really loudly and [feel]
the vibrations” and if the mitigation efforts helped, “it was very little.”
Andrew stated that he was not an expert on how to deal with the sound
issue at the compressor station. Andrew agreed that he had no idea what else
Crosstex could do to mitigate the noise but that he assumed that there was
technology “out there to fix it. It hasn’t been done.”
Shannon also said that she was not an expert on noise abatement and did
not know what else Crosstex could do to mitigate the noise. But she additionally
testified that an electricity company had come in and asked the area property
owners what they thought of its proposed plans to install power lines in the area,
in contrast to Crosstex, which had not asked for anyone’s thoughts with regard to
its compressor station’s location or the noise it would generate. Shannon
34
suggested that Crosstex should have bought enough land that the noise affected
only Crosstex’s property and not neighboring landowners.
Portions of Mark Jordan’s deposition testimony, which were read to the
jury, reflected that he supervised Crosstex’s acquisition of pipeline rights-of-way
and sites associated with natural gas gathering, transportation, compression, and
other land responsibilities. Jordan stated that Crosstex’s current process prior to
locating a compressor station on a particular property is to hire an acoustical
engineer to perform a noise study but that he did not know whether that was the
case when the compressor station at issue was sited.
Andrew testified that Behrens’s testimony and recordings did not
accurately depict the noise that the compressor station makes on his property.
Specifically, Andrew told the jury,
Now, I came in here and I have been truthful with what I hear
on my property. I’m not going to argue—I don’t know enough about
decibel readings to tell you what you heard yesterday was or wasn’t
correct as far as decibels. But I am fully aware of what the sound
levels are to the human ear on my property. What y’all heard
yesterday was not accurate by the furthest stretch of an imagination.
Andrew said that he drove out to the property from 11 p.m. to midnight on
January 12, 2012, to all of the points discussed by Behrens in his testimony, “and
at no point was that gas substation inaudible.” Andrew said that from where
Meter 2 had been located, the compressor station sounded like a train. He
stated, “When Mr. Behrens sat here in this chair under oath and looked at every
one of you and said that it was inaudible at Location 2, that was not true.”
35
4. Additional Site Selection Testimony
Iles testified that a factor that goes into Crosstex’s route selection and
compressor station site selection is the impact on number of homes “but you
can’t just completely avoid those things.” Iles said that the compressor station at
issue was in an appropriate location because “there’s actually quite a bit of open
land around it,” most of it open pasture, it had good road access needed by
Crosstex’s operation staff, and it was located generally halfway on the pipeline.
Mueller testified that he had been to the compressor station several times,
including within the last month. He said he had noticed traffic on FM 1385 while
there, counting over eighty vehicles between noon and 2 p.m., and described the
area around the compressor station as remote and far outside of the city limits,
with plenty of agricultural and nonresidential uses and places of business,
including a flea market, a travel trailer park, a large horse breeding facility, and
welding shops.
5. Other Noise Evidence
Moore testified that after the compressor station started operating, he
could hear it on his entire 100 acre-property and in his home. Moore stated that
when the station first began operating, it woke him early in the morning; although
it no longer did so, “it’s still just as loud.” He further testified that it seemed
loudest in the morning and was so loud that “you can’t do anything out there
without being bothered by it.” Moore went to the June 19, 2007 meeting but did
not otherwise become involved in the noise complaints. He had been to the
36
Gardiners’ property a few times, most recently a week before trial, and could
hear the station from their property; it was loud. Moore stated that Crosstex’s
efforts at mitigation “just haven’t helped the sound much,” and that if they had
helped, “it’s very little” and had not solved the noise problem.
Lynn’s home was the closest home to the station. He described the noise
after the station began operating as very loud, constant, and like “an engine of a
locomotive sitting on [his] driveway practically.” Lynn attended the June 19, 2007
meeting and said that the Crosstex representatives told the crowd that “they
would get it back to as close as it was before as possible to them in the hope that
it would be satisfactory to everybody.” Lynn stated that Crosstex did not make
things right, that the noise level was not acceptable to him, and that he could no
longer use his backyard to entertain because of the noise. Lynn stated that he
had visited the Gardiners’ property, that the compressor station was very loud
there, and that he had felt vibrations on his property from the compressor station.
Lynn said that he had not tried to sell his property and move because his
family was in the area. He thought Crosstex’s mitigation efforts—putting in the
building, sound-absorbing blankets, and sound walls—had reduced the station’s
noise and said with regard to noise mitigation, “To my knowledge, I don’t know
what else [Crosstex] could do.” In his deposition, Lynn stated, “I honestly think
that they’ve done the best that they can do at this time,” but during trial, he said
that he thought Crosstex could do more now than he did at his deposition the
year before.
37
Scott Norris, a property developer, testified that he had gone out to the
Gardiners’ property on the morning of his testimony and that the noise level was
loud, comparable “to a locomotive engine on a train as consistent humming,
vibration, loud noise.” He stated that on a previous visit, he had pulled over to
the side of the road near the compressor station, put a water bottle on top of the
fence post, and could see the vibrations in the water. On the morning that he
testified, he brought a clear glass and water, set it in the property’s interior on a
gate, and saw vibrations.30
Norris opined that the Gardiners’ property had been well-suited for
residential development before the station began operating but that afterwards,
no developer would buy the property for residential development because the
nearby noise and vibrations made it less competitive. Norris stated that there
were different expectations of noise based on location—rural or urban—and that
the noise level on the Gardiners’ property was very loud for a rural area but might
be acceptable in urban areas like Frisco or Plano. Norris said that the sound
levels were not acceptable for one-acre residential development in a non-urban
setting. He acknowledged that, given the growth pattern from Dallas, the
30
Behrens testified that vibrations could be airborne or ground-borne but
that the compressor station produced very little vibration because the machinery
had to be balanced or the system would fall apart. Behrens did not believe that it
would be possible for the ground to vibrate several hundred feet away from the
compressor station because ground vibrations attenuate very quickly. He said
that a glass of water in the middle of the Gardiners’ property could shake from
wind or livestock but not from the compressor station.
38
Gardiners’ property would someday be urban and that FM 1385 was projected to
become a six-lane divided highway but said that it would be more like a parkway
with signal lights instead of unimpeded high-speed traffic.
Slater visited the Gardiners’ property six to eight times after the
compressor station started operating, the most recent visit being the day before
his testimony, and stated that he could hear the station every time he went and
that the day before his testimony, “it was louder than [he has] ever heard it.”
Slater described the sound as “rumbling like a locomotive-type engine or diesel
engine,” followed by a shrill sound “like the sound of an air impact wrench that
takes off lug bolts.”31
Jacki Scott, who built a home in the area after the station began operating,
testified that the sound level at FM 1385 and Mustang Road was extremely loud
and sounded like a jet engine with a high-pitched noise. Scott testified that she
became aware that the compressor station was operating because of the noise,
which she heard when feeding her cattle and improving her property. Scott
described the noise when the station first started operating as similar to “standing
in the middle of an airport with jet airplanes taking off all around me.” Scott
testified that she did not think the sound level had changed over time, that it was
still extremely loud, and that she had to raise her voice to hold a conversation
31
Mueller said that the “air wrench” sound that Slater described was
caused by preventive maintenance on the facility, performed once a quarter for
two to four hours.
39
outside of the house. Scott stated that none of the sound mitigation efforts had
changed what she heard at her house or on her property and that she believed it
had had no effect.
Scott stated that when Carl Watts from Crosstex showed up uninvited on
her property, she complained to him about the noise, and Watts told her that “the
building really needed to be fully enclosed, but that would cost . . . a lot of money
and Crosstex didn’t have the money and that he wouldn’t want to live by it
either.”32 Scott said that she built her house despite the compressor station
because she was too fully invested in the land, thought Crosstex “was going to
work with [her] to mitigate it,” and knew if she tried to sell, she would not get a
good price.33 Scott said she could hear traffic from FM 1385 at her house.
Mark Latham testified that around 2006 or 2007, he had negotiated with a
real estate broker who represented Moore for the sale of Moore’s property
immediately west of the Gardiners’ property and south of the compressor station
based on rumors about a 15,000-acre entertainment complex being developed in
the area. Latham’s company had been interested in buying that property and
around fifty other nearby tracts, and he saw the compressor station but it did not
affect the amount his company had contracted to pay Moore. He did not recall
32
Scott also described McMillan as condescending and said that McMillan
had downplayed her complaints.
33
Scott never talked to a realtor or real estate broker about how much her
property might sell for and did not have her property appraised after the
compressor station started operating.
40
hearing anything loud from the compressor station, but his company ultimately
terminated the contracts in March 2007 because their information about the
development was incorrect or misguided. Latham testified that he had been in
the area since the compressor station had been operating and did not hear
anything unreasonably loud in his estimation but agreed that after the station had
started operating, he just drove by with his windows up.
Iles said that he went to the compressor station on the day before his
testimony, visited the operator, and made some phone calls while he was there
because Crosstex used the building next to the compressor station as an office.
Iles said that while he could hear the compressor station, it was fairly quiet in the
office and that he made a cell phone call from the property’s entrance gate and
was able to converse without raising his voice. Iles said he had more trouble
talking over passing traffic than the station’s noise.
Mueller testified that the station’s four engine compressor units were inside
the compressor building and that Crosstex employees were required to wear ear
protection when inside the compressor building because the noise was very loud.
The engines’ cooling fans were located behind sound walls. The two nearby
buildings were a “storage/shop” building and a field office building. Both were
portable metal buildings. Mueller said that Crosstex did not run all four engines
all of the time and in 2011, for the majority of the year, it ran three units. The
number of units running and the speed at which they run is determined by the
supply of gas on the pipeline. Mueller said that the supply of gas was steady
41
throughout the year, with short peaks in summer and winter. The lowest speed
the compressor engines could run was 800 RPMs and the highest was 1,000.
When the pressure increases, the RPMs speed up; the engines’ RPMs are
electronically controlled.
Mueller said that, in his opinion and experience, there was no noticeable
difference in sound level between running three engines and four, or in the
station’s sound when running at 800 RPMs or 1,000 RPMs. Crosstex’s remote
monitoring facility—Supervisory Controls and Data Acquisition (SCADA)—
notifies Crosstex when an engine goes down, and SCADA had notified
employees several times when one of the engines had gone down because the
employees could not physically hear the difference.
Mueller said that while it was very loud inside the compressor building, in
his opinion it was not loud outside the building even before they added the
secondary east wall. Mueller opined that passing traffic was louder than the
station and that the station’s noise was quieter after the sound walls were
installed. Mueller testified that on his last trip out to the station, he drove out to
Mustang Road near where Moore lived, parked his truck, got out, sat down,
specifically listened for any noise from the station, and could not hear anything.
Mueller said that the office building by the compressor station was used by
operations staff to record information on Crosstex’s daily log reports, make
phone calls, and—after long days—sleep. Mueller said that mechanics who had
been at the station late at night to work on equipment had slept on the office’s
42
couch, as had workers kept out there twenty-four hours a day during winter
freezes. The trial court admitted photographs of the office’s interior, showing the
couch with a deer’s head mounted on the wall above it and a clock and message
board hanging on nearby walls.
Mueller said that he had never felt any vibrations working in the office or
seen anything fall from the walls. He had attended several meetings at the
office, and the station’s sound had never interfered with the meetings or with
phone calls, although the engines could be heard inside the office building.
Mueller further testified that Crosstex had vibration switches installed in the
facility to monitor vibrations to make sure that the equipment stayed in alignment
and that the station’s vibration monitors had not indicated any recent vibrations.
Mueller said that he assumed Crosstex knew the station would make some
noise before it started operations in May 2007 but not to what extent because it
was a normal operating compressor station, just “[l]ike [Crosstex’s] Cooper
Station that ran for almost a year before any complaints.” Mueller said that not
all of the sound mitigation efforts were made solely for the Gardiners’ benefit but
that the secondary east wall was installed to try to satisfy the Gardiners. Mueller
said, “To my knowledge, Crosstex had been working with the Gardiners from the
beginning trying to satisfy them and different methods and nothing we suggested
to do were they satisfied with.” He acknowledged that he had never spoken with
the Gardiners and that he did not decide when the last wall was installed.
43
James Hogg, a real estate appraiser, testified that he did a site inspection
on December 15, 2010, and that he could hear sound from the compressor
station at some parts of the property but did not consider it loud. Hogg said that
it did not interfere with his conversation on the property and that he did not
believe the sound from the compressor station had any negative impact on the
property’s fair market value.
6. Conclusion
Crosstex complains that the Gardiners failed to offer a scintilla of evidence
that it committed any act of negligence in creating and operating the compressor
station, that they failed to show the standard of care that a natural gas pipeline
and compressor station operator of ordinary prudence would have exercised
under the same or similar circumstances, or that Crosstex’s conduct fell below
any such standard. Crosstex also argues that the contrary evidence conclusively
proves that Crosstex acted with ordinary prudence and was not negligent and
that the station did not substantially interfere with the Gardiners’ actual use of
their property as grazing land.
The Gardiners respond that the evidence showed that Crosstex could have
located the station elsewhere on the pipeline, that it built the station knowing that
it was going to be noisy but without initially taking any mitigation measures, that it
could have installed a building that wholly enclosed the station but did not do so
because it would be more expensive, and that its efforts at mitigation were not
effective at reducing or eliminating the noise. Crosstex replies that the Gardiners
44
identified no evidence showing that Crosstex negligently created a nuisance
under the standard submitted to the jury.
Anything more than a scintilla of evidence is legally sufficient to support a
finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of
evidence exists if the evidence furnishes some reasonable basis for differing
conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l,
Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
Based on the evidence set out above, the jury could have found that the
Gardiners were persons of ordinary sensibilities experiencing substantial
interference with their use and enjoyment of their pasture because of
unreasonable discomfort or annoyance caused by the sound of the compressor
station and that during the four years since the compressor station had started
operating, Crosstex had failed to use ordinary care, failed to do that which a
person or party of ordinary prudence would have done under the same or similar
circumstances, or did that which a person or party of ordinary prudence would
not have done under the same or similar circumstances.34 Therefore, we
conclude that the evidence is legally sufficient and overrule this portion of
34
That is, the record reflects that there was no specific line item budgeted
for sound mitigation when the station was approved but Mueller said that all
compressor stations are noisy.
45
Crosstex’s first issue. However, we sustain the factual sufficiency portion of
Crosstex’s first issue.
An opinion reversing for factual insufficiency must detail the evidence
relevant to the issue in consideration and clearly state why the finding is factually
insufficient. Pool, 715 S.W.2d at 635. The record reflects that Crosstex built its
compressor station at a location on its pipeline where it appeared to affect the
fewest people—in an unzoned, rural area across the street from a pasture
instead of a home—and that the station had to be located on the pipeline, which
was already in place by the time Crosstex decided to build the station. Cf.
Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl.
Quality, 393 S.W.3d 417, 437 (Tex. App.—Austin 2012, pet. denied) (op. on
reh’g) (discussing factors that permit-amendment applicants for proposed landfill
expansions have to provide to TCEQ, such as zoning at the site and vicinity,
character of the surrounding land uses, growth trends of the nearest community,
and proximity to residences and other uses); 65 Am. Jur. 2d Railroads § 112
(2014) (stating, with regard to site selection of railroad facilities, that “[n]egligence
in the improper selection of the site or the improper maintenance and operation
of structures and appurtenances incidental to the operation of the road may
render a particular yard, enginehouse, shop, or other appurtenance a nuisance
as to property injuriously affected thereby”). Although Jordan testified that
Crosstex’s current process prior to locating a compressor station is to hire an
acoustical engineer to perform a noise study, he did not know if that had
46
occurred when the station at issue was sited, and no one testified that this was
the applicable standard of care for locating a compressor station when Crosstex
selected the site. Cf. Holubec v. Brandenberger, 111 S.W.3d 32, 34–35, 39
(Tex. 2003) (reversing jury’s verdict for plaintiff on negligent nuisance when
charge failed to include right-to-farm limitations defense).35 Crosstex’s evidence
also showed on a numerical basis that the post-mitigation noise levels and most
of the pre-mitigation noise levels were not incompatible with the Gardiners’ actual
use of the property.
Contrary to the Gardiners’ argument that Crosstex built the station without
initially taking any mitigation measures, Crosstex’s budget for the station showed
“buildings,” and Mueller stated that before start-up, hospital-grade mufflers were
installed on the compressors and that, to his knowledge, Crosstex had always
intended to put a building over the compressors.
When Crosstex received complaints that the compressor station’s noise
was too loud for the area, it held a meeting with the area landowners, consulted
35
On retrial, a second jury found that the Holubecs’ feedlot was a nuisance
and that the Holubecs were negligent in their location, construction, or operation
of the feedlot; the Holubecs did not appeal those findings. Holubec v.
Brandenberger, 214 S.W.3d 650, 653–55, 657 (Tex. App.—Austin 2006, no pet.)
(noting that the plaintiffs complained of foul odors, swarms of flies, dust, noise,
and light emanating from the defendants’ ten-acre sheep feedlot, which
contained as many as 5,800 sheep at various times, 135 feet from the plaintiffs’
home). However, the court concluded that the trial court’s permanent injunction
against operating the feedlot within 1,000 feet of the boundary between the
parties’ properties was overbroad when the plaintiffs stated that moving the
feedlot to an alternate location on the defendants’ 450-acre ranch within 1,000
feet of the boundary would cause little or no harm. Id. at 653, 658–59.
47
with a sound expert, and began implementing mitigation efforts based on his
recommendations. Andrew’s form letter asked for a fully enclosed metal building
with sound installation, twelve-foot sound walls around the perimeter, and
landscaping, and warned Crosstex that a partial metal building would not suffice,
but Andrew admitted that he did not write the letter and that he was not an expert
in dealing with sound issues. Crosstex’s expert did not recommend to Crosstex
that it put a fully enclosed building around the station, even though he could have
earned more money by doing so, because he did not think that the area
warranted it. Scott’s testimony does not indicate when Watts told her that the
building needed to be fully enclosed or what his qualifications were to make that
statement. Crosstex installed sound walls around the fans instead of the
perimeter, but there was no testimony that this decision was negligent and that
such walls around the perimeter instead of around the fans would have made a
difference in mitigating the noise. There was no testimony that the compressor
station itself was operated negligently or that the mitigation itself—mufflers,
building, sound blankets, sound walls, and air intake silencers—had been
negligently installed.
Although Andrew testified that he assumed that there was additional sound
mitigation technology “out there to fix it,” the only party who testified about the
technology available to mitigate sound was Crosstex’s expert. The record
reflects that Crosstex relied on its expert’s recommendations, and nothing shows
that such reliance was negligent under the circumstances. Further, no one
48
testified about how long such mitigation efforts would normally take or whether
Crosstex’s efforts took too long, whether any technologies other than a fully
enclosed building existed to reduce the noise, and whether a fully enclosed
building would have been quieter by the time Crosstex had installed other
mitigation measures. The record reflects that Crosstex continued to invest in
additional sound mitigation to try to remedy the problem despite the Gardiners’
complaints that none of its efforts made a difference.36 We conclude that the
evidence is factually insufficient to support the jury’s negligent nuisance finding,
and we sustain this portion of Crosstex’s first issue.
D. Trial Amendment
In their appellees’ brief, the Gardiners argue that the trial court abused its
discretion by denying their request for a trial amendment so that they could add
the “abnormal and out of place” basis for nuisance to the jury charge, and they
ask that we find that they are entitled to a new trial on that claim if we reverse
due to inadequate evidence of a negligent nuisance.
A trial court abuses its discretion if it acts without reference to any guiding
rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004). An appellate court cannot conclude that a trial court abused its
36
As pointed out by Crosstex, in their closing argument, the Gardiners did
not highlight any particular acts of negligence by Crosstex but instead asked that
if the jury did not find that an intentional nuisance had been created but felt that
Crosstex was negligent, to “answer yes to No. 2.”
49
discretion merely because the appellate court would have ruled differently in the
same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
Under rule of civil procedure 66, the trial court may allow pleadings to be
amended and shall do so freely when presentation of the merits of the action will
be subserved thereby and the objecting party fails to satisfy the court that the
allowance of such amendment would prejudice him in maintaining his action or
defense upon the merits. Tex. R. Civ. P. 66; see also Tex. R. Civ. P. 63. Under
the rules of civil procedure, the trial court has no discretion to refuse an
amendment unless (1) the opposing party presents evidence of surprise or
prejudice, or (2) the amendment asserts a new cause of action or defense and
thus is prejudicial on its face, and the opposing party objects to the amendment.
Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). The
burden of showing prejudice or surprise rests on the party resisting the
amendment. Id. But see Chapin & Chapin, Inc. v. Tex. Sand & Gravel Co., 844
S.W.2d 664, 665 (Tex. 1992) (op. on reh’g) (stating that the nature of the
amendment affects the abuse-of-discretion analysis and distinguishing between
formal, procedural amendments that conform the pleadings to the evidence and
substantive amendments that change the nature of the trial).
The trial began January 9, 2012, and the Gardiners requested the trial
amendment four days later during the charge conference. On January 13, the
Gardiners argued that because the supreme court in Likes had discussed the
50
three classifications of actionable nuisance and because the evidence supported
all three classifications, they should be allowed a trial amendment. The trial court
responded,
I have no doubt that the law recognizes those three authorities
clearly, distinguish[es] those three manners of private nuisance. I
also have no doubt that the evidence in this case supports the
submission of all three of them, but I find the pleading to be wholly
void of any reference, even vaguely, to defendant’s conduct being
abnormal and out of place in its surroundings such as to create a
nuisance. And it’s my view that the precedent requires at least some
manner of placing the defendant on notice of the manner of plaintiffs’
claims. [Emphasis added.]
When the Gardiners requested the trial amendment based on trial by consent,
Crosstex objected, stating that the issue had not been tried by consent and
arguing that “[i]t would be wholly impossible to try to sever out any evidence in
such a manner as they’re suggesting, and we would be unfairly surprised by a
trial amendment at this point at the close of the evidence.” The trial court denied
the Gardiners’ requested trial amendment.
An amendment is prejudicial on its face if it asserts a new substantive
matter that reshapes the nature of the trial itself, the opposing party could not
have anticipated the amendment in light of the prior development of the case,
and the opposing party’s presentation of the case would be detrimentally
affected. Dunnagan v. Watson, 204 S.W.3d 30, 38 (Tex. App.—Fort Worth 2006,
pet. denied). However, here, the entire case was based on the Gardiners’
underlying grievance that the compressor station’s noise was abnormal and out-
of-place in its surroundings.
51
In part of their opening statement, the Gardiners told the jury that the case
was a nuisance and negligence case involving the impact of a gas compressor
station—“a very heavy industrial use”—located directly across from their
property. Throughout the Gardiners’ case, they presented evidence that
regardless of Crosstex’s efforts at mitigation, the noise produced by the station
remained too loud for their previously quiet, rural neighborhood. And in their
closing argument, the Gardiners argued that the case began with a request to
Crosstex “to, basically, fix the problem that they created from the noise from the
compressor station” and that after numerous requests and “some Band-Aids that
were put up,” the problem was never fixed. The Gardiners reminded the jury that
the only testimony “as to the quietness and rural feel before the gas compressor
station” was from their witnesses. The Gardiners argued that running the
compressor station without a building around it created an intentional nuisance,
that all of the area landowners who testified agreed that it was not the perfect
place for a gas compressor station, and that the noise was unreasonable and
unacceptable when operations started and was still unreasonable and
unacceptable at the time of trial.37 In their rebuttal argument, the Gardiners
stated that the sound was loud and constant.
37
The Gardiners also argued that Crosstex was greedy because it could
have shut off the compressor station when it heard the noise complaints as gas
would still flow through the pipeline, just not as much, and because Crosstex
could have paid for a fully enclosed building but did not want to because of the
cost. They further argued that all of Crosstex’s witnesses were biased.
52
Crosstex’s theory of the case was that the station was not too loud and
never had been and that it provided mitigation above and beyond what was
necessary to appease the Gardiners. In its opening statement, Crosstex stated
that the nuisance case was about (1) whether the gas compressor station
constituted a nuisance that substantially interfered with the Gardiners’ use and
enjoyment of ninety-five acres of undeveloped land in a rural, unzoned,
unincorporated part of the county, which they had never used for anything other
than running cattle and where there were other commercial and industrial uses in
the area and nearby traffic noise, and (2) whether the station had caused the
property to diminish in value by over $2.5 million. Crosstex told the jury that the
evidence would show that the station could not be in a better place than across
the street from vacant cattle land and that Crosstex had taken substantial,
reasonable steps “to help mitigate any sound that may be affecting the
Gardiners’ property.”
In its closing argument, Crosstex argued that the station was not a
nuisance, that the pipeline had to be routed from the wells’ location, and that
without the ability to transport more gas on the pipeline, producers and royalty
owners would not be able to get their gas out, so turning off the compressor
station was not as viable an option as shutting down a noisy motocross track.38 It
38
See, e.g., McAfee MX v. Foster, No. 02-07-00080-CV, 2008 WL 344575,
at *1 (Tex. App.—Fort Worth Feb. 7, 2008, pet. denied) (mem. op.), cert. denied,
555 U.S. 1102 (2009).
53
also argued that its witnesses were more credible than the Gardiners’ witnesses,
that the evidence showed that the noise level on the property was not high
except for the first 100 feet of the property by the road, that the area was already
noisy with traffic and was going to get noisier when FM 1385 became a six-lane
divided highway, that the noise had not affected Andrew’s continued use of the
pasture for cattle-grazing, and that Crosstex had done more than it needed
“under the circumstances out there plus some.” And it argued that the Gardiners
presented two stories: “One story is that this is a rural area, it’s the country, it
should be quiet and kept that way. The other story is we want to wait till the land
prices get to the right place and then we’re going to sell it for something else to
be here.”
Here, other than complaining that it would be “wholly impossible” to sever
out the evidence pertaining to an abnormal and out-of-place nuisance, which—as
demonstrated above in our recitation of the evidence—it would not have been,
and that the amendment would constitute unfair surprise, which—as also shown
above in our recitation of the evidence—it could not reasonably have been,
Crosstex offered no evidence of how it was actually prejudiced or surprised and
did not argue that it otherwise would have had to change its trial posture if the
amendment were granted. Under the circumstances presented above, adding
the abnormal and out-of-place basis—one of three forms of culpability for
creating a nuisance, see Mathis, 377 S.W.3d at 930—would have done no more
than conform the pleadings to the evidence. Therefore, we hold that the trial
54
court should have allowed the trial amendment and that it abused its discretion
by not doing so.
IV. Conclusion
We overrule Crosstex’s third issue and the part of its first issue pertaining
to legal sufficiency. We sustain the part of Crosstex’s first issue pertaining to
factual sufficiency, reverse the trial court’s judgment without reaching the rest of
Crosstex’s issues, see Tex. R. App. P. 47.1, and remand the case for a new trial
and to allow the Gardiners to add the abnormal and out-of-place variation of their
nuisance claim.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
WALKER, J. concurs and dissents with opinion.
DELIVERED: November 13, 2014
55