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.

• Court: Texas Supreme Court
• Decided: June 29, 2015
• Docket: 07-13-00391-CV
• Status: Published

Opinion

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