A multiple choice question: You’ve gotten to the trial you’ve waited two years for. You are presented with a “naked conjecture … “ followed shortly by an “ipsi dixit”. Your reaction:
a. “Finally, something interesting happened at the courthouse.”
b. “No thanks, I’m spoken for.”
c. Rejoice, you won.
Natural Gas Pipeline Company of America v. Justiss is a suit for nuisance brought by homeowners in the vicinity of a loud, stinky gas compressor station. In discussing the court of appeals decision on February 1, 2012 , I focused on the extent of the continuous noise and noxious odors emanating from the station. In this opinion the Texas Supreme Court decided that more than a homeowner’s unsupported opinion is required to establish the market value of his home.
The Property Owner Rule v. Speculative Testimony
Texas courts allow a homeowner to testify about the market value of his home without having to be accepted as an expert on land values. However, just as with an expert, the testimony must have a factual basis; it can’t be based on naked conjecture or solely speculative factors. Said another way, the testimony can’t be supported solely on the landowner’s ipse dixit (an arbitrary and unsupported assertion).
The Rules at Work
The jury found that the compressor station was a permanent nuisance and awarded nine plaintiffs a total of $1.2 million in damages for lost property values.
One landowner testified about that he thought the market value had been $650,000, based on sales of property in the area (without identifying specific sales), and that it had diminished to $400,000. Another testified that the noise and odor diminished the value but never referred to “market value”. Others gave a figure for their opinion on the market value of their property but gave no basis.
The fatal flaw in the testimony of each of these witnesses is twofold: They didn’t provide a factual basis for their opinions, and they didn’t testify about how the value had changed because of the compressor station.
The Suit Was Not Time-Barred.
The station opened in 1992. The plaintiffs started complaining soon thereafter about noise and odor (including one who spoke of his “total frustration and torment”). They finally sued in 1998, more than two years after their first complaints. (Tort suits must be brought within two years of the injury.) NGPA denied for years that there was a problem, stating that the plaintiffs had exagerated or were overly senstive; but when the plaintiffs sued NGPA argued that they waited too long. The court didn’t buy it. While there was no doubt that the compaints began more than two years before suit was file, the company wcould not be allowed to deny for years that a claim existed and when sued argue that, for limitations purposes, a claim really did exist during all that time.
The answer is “c”. NGPA “won” in the sense that the case was remanded for a new trial, not only on damages but on liability as well.