Natural Gas Pipeline Co. of Am. v. Justiss

• Citation: 397 S.W.3d 150,56 Tex. Sup. Ct. J. 151
• Decision Date: 14 December 2012
• Docket Number: No. 10–0451.,10–0451.
• Parties: NATURAL GAS PIPELINE COMPANY OF AMERICA, Petitioner, v. William JUSTISS, Darlene Justiss, Joseph Justiss, Tommy Alspaugh, Judy Alspaugh, Joe Denton Mashburn, Christine Mashburn, Joe Donald Mashburn, and Judy Mashburn, Respondents.
• Court: Supreme Court of Texas

397 S.W.3d 150

56 Tex. Sup. Ct. J. 151

NATURAL GAS PIPELINE COMPANY OF AMERICA, Petitioner,

v.William JUSTISS, Darlene Justiss, Joseph Justiss, Tommy Alspaugh, Judy Alspaugh, Joe Denton Mashburn, Christine Mashburn, Joe Donald Mashburn, and Judy Mashburn, Respondents.

No. 10–0451.

Supreme Court of Texas.

Argued Oct. 5, 2011.

Decided Dec. 14, 2012.

Kevin J. Muenster, Taber Estes Thorne & Carr, PLLC, Dallas, TX, for Amicus Curiae Crosstex Energy Services, L.P.

Thomas A. Zabel, Zabel * Freeman @ Houston Attorneys, Houston, TX, for Amicus Curiae LaSalle Pipeline L.P.

James E. Mann, Duggins Wren Mann & Romero LLP, Austin, TX, for Amicus Curiae Texas Pipeline Association.

J. Brett Busby, Julia K. Wells, Kathryn Elizabeth Boatman, Phillip D. Sharp,

Warren W. Harris, Bracewell & Giuliani, LLP, Houston, TX, for Petitioner Natural Gas Pipeline Company of America

James R. Rodgers, John Stephen Walker, Judy Hodgkiss, The Moore Law Firm, L.L.P., Paris, TX, for Respondent William Justiss.

Chief Justice JEFFERSON delivered the opinion of the Court.

Several homeowners alleged that noise and odor emanating from a gas company's compressor station caused a permanent nuisance. The company countered that because the homeowners' complaints predated their lawsuit by six years, limitations barred their action. A jury found that a permanent nuisance, which began just before the lawsuit was filed, diminished property values. The court of appeals affirmed the trial court's judgment for the homeowners. We agree with the court of appeals that some evidence supports the jury's finding on the accrual date.

We reach a different conclusion on damages, however. The homeowners testified that the nuisance decreased their property values, but none explained the factual basis for that conclusion. While a nuisance undoubtedly can diminish values, the conclusory and speculative testimony here does not support such a finding. Accordingly, we reverse the court of appeals' judgment and remand the case to the trial court for a new trial.

I. Background

In 1992, the Natural Gas Pipeline Company of America built a compressor station in Lamar County. Soon thereafter, area residents complained to the Company and to state regulators that the station's noise, odor, and lights interfered with the enjoyment of their homes. Between 1992 and 1998, William Justiss repeatedly called the Company and voiced his displeasure. In 1994, 1995, and 1996, he notified the Texas Natural Resources Conservation Commission (now known as the Texas Commission on Environmental Quality) about the noise and odor. Two years after the plant opened, Justiss's lawyer wrote to the Company, claiming that the station was causing the Justisses “total frustration and torment.” The Company responded, through its lawyer, and stated that “the actual impact of the station on the Justiss' [sic] property [was] significantly less than described in [the] letter.” A lawyer representing other residents also notified the Company that “the noise, vibration, lights, and related stimuli” were affecting the residents' “peaceful use of their homes and property.”

The Company took minor remedial measures but consistently asserted that the plant complied with government permits. In June 1998, however, the TCEQ cited the station for a Category 5 odor violation—the most severe possible, indicating overpowering, highly objectionable, and nausea-inducing odors. The Company responded by changing the oil for the station's engines and raising the exhaust stacks.

Two months after the citation, twelve residents ¹ sued the Company, alleging that the station's noise and odor constituted either a temporary or permanent nuisance. The Company moved for summary judgment, arguing that the permanent nuisance claim was time-barred because it accrued more than two years before the lawsuit. The trial court denied the motion, and the case proceeded to trial. The jury found that (1) the noise and odor from the station created a permanent nuisance, and (2) those conditions “first created a nuisance” on June 12, 1998, the date of the TCEQ citation. The jury determined that the nuisance affected only nine of the twelve plaintiffs and awarded $1,242,500 for their lost property value.² The trial court rendered judgment on the verdict.

The Company appealed, arguing that (1) limitations barred the permanent nuisance claim; (2) insufficient evidence supported the jury's permanent nuisance and damage findings; and (3) the trial court improperly awarded prejudgment interest because the plaintiffs failed to segregate past and future damages. 397 S.W.3d 209, 214. The court of appeals affirmed, id., and we granted the Company's petition for review.³ 54 Tex.Sup.Ct.J. 1156 (June 17, 2011).

The Company's arguments here generally mirror those it made in the court of appeals. We turn first to the limitations argument.

II. Limitations

A permanent nuisance claim accrues when the condition first “substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269–70 (Tex.2004). To establish a limitations defense, the defendant must prove that a permanent nuisance occurred, if at all, more than two years before the landowner's lawsuit. City of Abilene v. Downs, 367 S.W.2d 153, 159–60 (Tex.1963). Because the jury found that the Company first created a nuisance in 1998, the Company can prevail only if it has established, conclusively, that the claim accrued more than two years before then. See Barnes v. Mathis, 353 S.W.3d 760, 762 (Tex.2011) (per curiam) (“When a party with the burden of proof loses at trial and asks an appellate court to render judgment in his favor, that party must show that the evidence conclusively established his entitlement to judgment.”).

The Company argues that the residents' pre–1996 complaints conclusively prove that the landowners' claims accrued more than two years before suit was filed. According to the Company, the court of appeals erred in relying on three categories of evidence to conclude otherwise: (1) the Company's unequivocal denial of a nuisance, (2) the Category 5 citation, and (3) testimony that odors got worse in 1997 and 1998. The Company argues that this evidence cannot refute the plaintiffs' early characterization of “total frustration and torment.”

We disagree. First, the Company's plant manager, Kevin Brown, disputed that characterization. Brown testified that he “never” noticed an odor that could give rise to a nuisance claim. That testimony supports the jury's determination that no nuisance existed before 1998—“never” encompasses pre–1998. In fact, the Company's lawyer had written to some of the landowners and stated that the noise and odor were not nearly as bad as the landowners claimed. The Company argues that we must disregard this evidence because considering it would deter a defendant from presenting alternative arguments.Defense strategy is not our concern. We are asked only to consider whether the evidence supports or rebuts the jury's verdict. A jury may consider evidence whether presented as part of the main defense or part of an alternative argument. Thus, the jury was free to accept the plant manager's and the lawyer's characterizations of conditions as they existed before 1998.

Even if the plaintiffs' pre–1998 complaints were undisputed, that would not conclusively decide this case. Evidence that no one disputes does not necessarily establish a fact as a matter of law. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005) (“Undisputed evidence and conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and conclusive evidence may or may not be undisputed.”). Undisputed evidence can be susceptible to competing interpretations. See id. at 815 (“Undisputed evidence that reasonable jurors could disbelieve has two [logical inferences]: (1) it is true, or (2) it is not.”). Conclusive evidence cannot.

Conclusive evidence often “concerns physical facts that cannot be denied.” Id. We have held that a paternity test “conclusively proved” nonpaternity, Murdock v. Murdock, 811 S.W.2d 557, 560 (Tex.1991), that documents that detailed a leaseholder's wrongful acts and were sent and received by royalty owners “conclusively establish[ed]” that the royalty owners had knowledge of such wrongdoing, Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 203–09 (Tex.2011), and that “readily accessible, publicly available documents” conclusively established that a leaseholder's alleged fraud could have been discovered through the exercise of reasonable diligence. Shell Oil Co. v. Ross, 356 S.W.3d 924, 929–30 (Tex.2011). In each of these situations, the evidence pointed to only one conclusion. Here, nothing about the plaintiffs' original complaints would require a finding of a pre–1996 nuisance.

The Company cites William Justiss's many phone calls objecting to the noise and odor, but the phone records show only that calls were made, not the substance of the actual complaints. Next, the Company notes that Justiss, in addition to complaining about noise, told plant workers that he and his wife could hardly breathe because of the fumes, and that the smell was making them sick. This incident, however, was memorialized only in an internal Company memorandum, which Justiss disputed, testifying that “[t]hat was their word ... and they stretched it.” Finally, the Company relies heavily on letters the residents sent: one indicating “total frustration and torment” and the other claiming that the noise disrupted the peaceful use and enjoyment of their property. But the jury could have viewed the correspondence and Justiss's numerous complaints as hyperbole, intended to force the Company to act. Or the jury could have determined the plaintiffs were overly sensitive—that a reasonable person would not have judged the odors intolerable at the...