William Sciscoe, Denise Sciscoe, Eric Dow, Angela Dow, Robert Draper, Michelle Draper, John Harris, Kimberly Harris, Charles Pegg, Geraldine Pegg, Cody Petree, Alice Randall, Johnny Reames, Jeannette Reames, Margaret Wagner, Jane Wagner, and Town of DISH v. Enbridge Gathering (North Texas) L.P., Atmos Energy Corporation, Energy Transfer Fuel, L.P., Enterprise Texas Pipeline, L.L.C., Texas Midstream Gas Services, L.L.C. ( 2015 )


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  •                                                                                         ACCEPTED
    07-13-00391-CV
    SEVENTH COURT OF APPEALS
    AMARILLO, TEXAS
    6/29/2015 1:33:31 PM
    Vivian Long, Clerk
    No. 07-13-00391-CV
    FILED IN
    IN THE COURT OF APPEALS   7th COURT OF APPEALS
    FOR THE SEVENTH APPELLATE DISTRICTAMARILLO, TEXAS
    AMARILLO, TEXAS       6/29/2015 1:33:31 PM
    VIVIAN LONG
    CLERK
    TOWN OF DISH, WILLIAM SCISCOE, DENISE SCISCOE, ERIC DOW,
    ANGELA DOW, ROBERT DRAPER, MICHELLE DRAPER, JOHN HARRIS,
    KIMBERLY HARRIS, CHARLES PEGG, GERALDINE PEGG, CODY
    PETREE, ALICE RANDALL, JOHNNY REAMES, JEANETTE REAMES,
    MARGARET H. WAGNER, JANE WAGNER, TIM ZIMMERMAN, AND
    TRACY ZIMMERMAN
    Appellants,
    v.
    ATMOS ENERGY CORPORATION, ENBRIDGE GATHERING (NORTH
    TEXAS) L.P., ENERGY TRANSFER FUEL, L.P., ENTERPRISE TEXAS
    PIPELINE LLC, AND TEXAS MIDSTREAM GAS SERVICES, L.L.C.
    Appellees.
    Appeal from the 96th District Court
    Tarrant County, Texas
    Trial Court Case No. 96-254364-11
    APPELLEE ENTERPRISE TEXAS PIPELINE LLC’S
    MOTION FOR REHEARING
    ___________________________________________________________________
    TO THE HONORABLE SEVENTH COURT OF APPEALS:
    Appellee Enterprise Texas Pipeline LLC files this Motion for Rehearing.
    1
    I. ISSUES FOR REHEARING
    1)     Did the Court err in holding that the Appellants preserved their issues
    on appeal as against Enterprise because the Appellants never addressed
    Enterprise’s no-evidence grounds in the trial court?
    2)     Did the Court err in holding that the Appellants preserved their issues
    on appeal as against Enterprise because the Appellants never addressed
    Enterprise’s no-evidence grounds in this Court?
    II. ARGUMENTS AND AUTHORITIES
    A.    Enterprise Should           Not    Be     “Lumped”        In    With      Other
    Defendants/Appellees
    During the entirety of this case, Appellants have attempted to “lump”
    Enterprise in with the other defendants/appellees regarding the operation of
    compressor stations. But the evidence in this case shows that Enterprise does not
    operate a compressor station; it operates a metering station. The only evidence in
    the record shows that Enterprise’s metering station is a closed-in system that does
    not have emissions. Its metering station is also not even located at the same site as
    the compressor stations. Appellants offered no evidence that would contradict
    these facts, nor any evidence that the Enterprise metering station, in particular, is a
    contributor to the alleged nuisance or trespass.           Moreover, Enterprise is
    2
    procedurally very different. Enterprise is the only defendant to allege no-evidence
    grounds on elements such as causation.
    In reversing the trial court’s correct summary judgment for Enterprise, this
    Court has erred in following the Appellants’ lead in improperly “lumping” all of
    the defendants/appellees together.     Each defendant/appellee is entitled to an
    independent review of the case, the briefing, and the evidence as against that
    defendant/appellee. This Court does not have to change its decision on the merits
    of the underlying issues to grant Enterprise a rehearing and affirm summary
    judgment for Enterprise. Enterprise’s cross-issues are meritful, and this Court
    should affirm the trial court’s judgment for Enterprise.
    B.    Court Should Affirm The Judgment For Enterprise Because The
    Appellants Did Not Address Enterprise’s No-Evidence Grounds In The
    Trial Court
    In the trial court, Appellants failed to argue Enterprise’s Rule 166a(i) motion
    or direct the trial court to evidence in support of the challenged elements of
    Appellants’ causes of action. A non-movant must specify the evidence it is relying
    upon and direct the court’s attention to that evidence. See Estate of Bradburn v.
    Sawko, No. 2-02-192-CV, 2003 Tex. App. LEXIS 5005 (Tex. App.—Fort Worth
    June 12, 2003, no pet.); McClure v. Atteburry, 
    20 S.W.3d 722
    (Tex. App.—
    Amarillo 1999, no pet.). Enterprise properly challenged Appellants’ claims for
    nuisance and trespass via no-evidence grounds (3 C.R. 539).
    3
    There are no portions of the Appellants’ response that specifically addressed
    how any of the evidence presented by Appellants would tend to show that
    Enterprise engaged in any action or created any condition that correlates with the
    elements challenged by Enterprise’s Rule 166a(i) motion (4 C.R. 858 – 1012).
    Therefore, Appellants waived any error regarding the trial court granting
    Enterprise’s no-evidence motion for summary judgment, and this Court should
    affirm that judgment.
    This Court stated in its opinion that Appellants attached evidence that
    created a fact question. First, it is not fair to the trial court to reverse its judgment
    based on evidence that the Appellees did not cite to the trial court. Second, the
    evidence does not show what this Court reported that it did.                  Enterprise
    respectfully seeks clarification on which specific portions of the record provides
    evidence of causation or damages as it relates to Enterprise. The only specific
    mention of Enterprise in the record is a reference in the Wolf Eagle report that in
    2009 several metering stations were constructed, one of which is owned by
    Enterprise (4 C.R. 894). This was entirely insufficient to satisfy the elements of
    the plaintiffs’ causes of action that Enterprise challenged. Moreover, the opinion
    refers to evidence that is not in the record. Specifically, in footnote 2 of the
    opinion, the Court states that Enterprise’s metering station “has a mechanism for
    releasing gas into the air.” Not only is this not in the record, it is not true. To the
    4
    contrary, the only evidence in the appellate record is Enterprise’s affidavit, which
    shows that the Enterprise metering station does not include pressure-relief valves
    that relieve pressure by venting gas into the atmosphere (3 C.R. 549). It is a
    closed-in system.
    Furthermore, Enterprise has affirmatively established through evidence that
    the Station’s operations: do not include regular traffic from large trucks or tractor-
    trailers (3 C.R. 548); do not include odorized gas (3 C.R. 549); do not include
    pressure-relief valves that relieve pressure by venting gas into the atmosphere (3
    C.R. 549); do not include diesel engines (3 C.R. 548); do not include sounds that
    are audible offsite as a part of its regular operations (3 C.R. 548-49); and involve
    sweet natural gas that does not contain the allegedly dangerous compounds about
    which Appellants complain (3 C.R. 570). Therefore, there is certainly no evidence
    in the record to support several elements of the Appellants’ causes of action. In
    fact, the only evidence in the record contradicts those elements. Even if this Court
    chose to look at evidence never cited to the trial court regarding Enterprise, this
    Court should affirm the trial court’s judgment for Enterprise.
    C.    Court Should Affirm The Judgment For Enterprise Because The
    Appellants Did Not Address Enterprise’s No-Evidence Grounds In This
    Court
    This Court should affirm the trial court’s grant of summary judgment for
    Enterprise because of unassigned error. It is black letter law in Texas that the party
    5
    challenging a trial court’s judgment or order has the duty to challenge all potential
    grounds that would sustain the judgment or order.             Here, the trial court
    unequivocally granted summary judgment for Enterprise on its traditional and no-
    evidence motions for summary judgment (4 C.R. 1013). On appeal, Appellants
    presented six discreet and specific issues (Appellants’ Br. at 6). None of these
    issues presents purported error with regard to the trial court’s grant of Enterprise’s
    no-evidence motion for summary judgment (Appellants’ Br. at 6). Appellants also
    neglect to brief Enterprise’s no-evidence grounds in their argument section.
    Accordingly, Appellants waived those issues on appeal, and this Court should have
    summarily affirmed the trial court’s grant of summary judgment for Enterprise
    based upon unassigned error.
    This Court stated in footnote 16: “Every issue raised in Enterprise’s
    Traditional and No-Evidence Motion for Summary Judgment has been addressed
    and refuted.” That is the sum of this Court’s analysis of Enterprise’s second
    waiver issue. The Court’s analysis is contrary to the rule that an appellate court
    must address every issue raised and necessary to final disposition of the appeal.
    See Tex. R. App. P. 47.1. See also State Bar of Texas v. Evans, 
    774 S.W.2d 656
    ,
    658-59 n. 6 (Tex. 1989). Enterprise respectfully requests the Court to review the
    Appellants’ briefing and identify where Enterprise’s no-evidence motion for
    summary judgment was mentioned in a point of error (issue) or in the argument.
    6
    Further, Enterprise requests that this Court find that Appellants waived their appeal
    as against Enterprise by failing to adequately challenge Enterprise’s grounds for
    summary judgment on appeal.
    D.    Incorporation Of Other Appellees’ Motions For Rehearing
    Pursuant to Texas Rule of Appellate Procedure 9.7, Enterprise adopts and
    incorporates by reference the issues, arguments, case law, and evidence set forth
    and referenced in any other Appellees’ motion for rehearing as if fully set forth
    herein.
    III. CONCLUSION
    Accordingly, Appellee Enterprise Texas Pipeline LLC requests that this
    Court grant this Motion for Rehearing and requests that this Court affirm the trial
    court’s summary judgment in all things as to Enterprise, and requests that this
    Court award any and all other relief to which it is entitled in either law or equity.
    7
    Respectfully submitted,
    WINSTEAD PC
    /s/ David F. Johnson
    David F. Johnson
    State Bar No. 24002357
    dfjohnson@winstead.com
    Joseph P. Regan
    State Bar No. 24037343
    jregan@winstead.com
    777 Main Street, Suite 1100
    Fort Worth, Texas 76102
    (817) 420-8200 – Telephone
    (817) 420-8201 – Facsimile
    ATTORNEYS FOR APPELLEE
    ENTERPRISE TEXAS PIPELINE LLC
    8
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4(i)(4), I hereby certify that
    the above styled document contains 1,679 words. Counsel is relying on a word
    count computer program used to prepare the document. Appellees have filed a
    motion for permission to extend the word count limits.
    /s/ David F. Johnson
    David F. Johnson
    9
    CERTIFICATE OF FILING AND SERVICE
    The undersigned hereby certifies that on the 29th day of June, 2015, a true
    and correct copy of the foregoing is being electronically filed with the Seventh
    Court of Texas and served via electronic service on all parties or their attorneys of
    record listed below pursuant to the Texas Rules of Appellate Procedure:
    Kirk Claunch                           Karen S. Precella
    James D. Piel                          Haynes & Boone, LLP
    Jim Claunch                            201 Main Street, Suite 2200
    The Claunch Law Firm                   Fort Worth, TX 76102
    2912 West Sixth Street                 Attorneys for Appellee Enbridge
    Fort Worth, TX 76107                   Gathering (North Texas), L.P.
    Attorneys for Appellants
    Roger C. Diseker                       Samara L. Kline
    Bart A. Rue                            Jonathan B. Rubenstein
    Clark H. Rucker                        Hunter Allen
    Kelly Hart & Hallman LLP               Carlos Romo
    201 Main Street, Suite 2500            Baker Botts, L.L.P.
    Fort Worth, TX 76102                   2001 Ross Avenue, Suite 600
    Attorneys for Appellee Texas           Dallas, TX 75201
    Midstream Gas Services, L.L.C.         Attorneys for Appellee Atmos
    Energy Corporation
    Andrew Szygenda
    Thomas F. Lillard
    Robert K. Wise
    Lillard Wise Szygenda, PLLC
    5949 Sherry Lane, Suite 1255
    Dallas, TX 75225
    Attorneys for Appellee Energy
    Transfer Fuel, L.P.
    /s/ David F. Johnson
    One of Counsel
    10
    

Document Info

Docket Number: 07-13-00391-CV

Filed Date: 6/29/2015

Precedential Status: Precedential

Modified Date: 9/29/2016