Opinion
No. 13-02-535-CV
Memorandum Opinion delivered and filed August 12, 2004.
On appeal from the 36th District Court of Live Oak County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
MEMORANDUM OPINION
Appellant Doris Brown alleged causes of action stemming from a spill of wastewater onto her property from a Diamond Shamrock operation. The trial court granted Diamond Shamrock's no-evidence motion for summary judgment. By three issues, Brown complains that: (1) summary judgment was not supported by law or fact; (2) the trial court abused its discretion in disregarding Brown's summary-judgment evidence; and (3) the trial court abused its discretion in striking Brown's summary-judgment response. We affirm in part and reverse and remand in part.
Appellees are Ultramar Diamond Shamrock Corporation ("Ultramar"), Diamond Shamrock Refining and Marketing Company, L.P. ("Diamond Shamrock Marketing"), and Diamond Shamrock Refining Company, L.P. ("Diamond Shamrock Refining"). We refer to the appellees collectively as "Diamond Shamrock" or "defendants."
I. THE RECORD A. Brown's Claims 1. Brown's Live Pleading
The trial court issued a docket control order that set a pleading deadline of April 1, 2002. Diamond Shamrock moved for summary judgment on April 18, 2002. Brown filed a motion for leave to file her fourth amended petition on May 16, 2002. On June 4, 2002, Diamond Shamrock filed a response opposing the motion for leave, arguing that the amendment came after the pleadings deadline and less than seven days before the noticed summary-judgment submission date of May 17, 2002. The record does not reflect a ruling on the motion for leave. As a preliminary matter, we first determine which pleading was Brown's live pleading for purpose of the summary-judgment proceeding.
a. Pleading Amendment Deadlines
We note that a summary-judgment hearing is considered a "trial" for purposes of rule 63. See TEX. R. CIV. P. 63; see also Goswami v. Metropolitan Sav. Loan Assoc., 751 S.W.2d 487, 490 (Tex. 1988). Thus, rule 63 requires leave of court to amend a pleading within seven days of a summary-judgment hearing. Goswami, 751 S.W.2d at 490. However, rule 63 is liberally construed. Lee v. Key West Towers, Inc., 783 S.W.2d 586, 588 (Tex. 1989); Diesel Fuel Injection Serv. v. Gabourel, 893 S.W.2d 610, 611 (Tex. App.-Corpus Christi 1994, no writ). Thus, Texas appellate courts apply a liberal interpretation in determining whether a trial court granted leave to file an amended pleading beyond the prescribed deadline. See Goswami, 751 S.W.2d at 490 (finding that trial court granted leave to file late pleading where pleading was filed within seven days of summary-judgment proceeding); see also Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex. App.-Houston [1st Dist.] 1991, no writ) (finding that trial court granted leave to file late pleading where pleading was filed after deadline imposed by docket control order).
Goswami directs us to presume the trial court granted leave to file a late pleading even if the filer did not ask for leave when: (1) the record does not reflect that the trial court did not consider the amended pleading; and (2) no surprise or prejudice is shown. Lee, 783 S.W.2d at 588; Goswami, 751 S.W.2d at 490; see Wilson v. Korthauer, 21 S.W.3d 573, 578 (Tex. App.-Houston [14th] 2000, pet. denied) (holding that resisting party did not prove surprise or prejudice because he did not secure ruling on motion to strike). We turn to an analysis of the Goswami presumption.
b. Goswami Analysis (1) The Record Prong
In determining if the record satisfies the first prong of the Goswami presumption, we consider: (1) whether the amended pleading was part of the record; and (2) whether the judgment either states that the trial court considered all the pleadings on file or is silent on the issue. Id. at 578 (citing Goswami, 751 S.W.2d at 490). If the answer to each of these questions is yes, the first prong of the test is met. Korthauer, 21 S.W.3d at 577 (citing Goswami, 751 S.W.2d at 490). Here, Brown's fourth amended petition was part of the record when the trial court granted Diamond Shamrock's motion for summary judgment. However, the judgment does not recite what the trial court considered before ruling. Consequently, while the record does not reflect that the trial court considered Brown's fourth amended petition, it also does not reflect that the trial court did not. We find that the first prong of the test for application of the Goswami presumption is satisfied. See Korthauer, 21 S.W.3d at 577.
(2) The "Surprise or Prejudice" Prong
The second prong of the Goswami test focuses on the surprise or prejudice to the party opposing the filing of the amendment, including whether that party moved to strike the late-filed pleading. See id. Here, the record shows that Diamond Shamrock filed a response opposing Brown's motion for leave to file her fourth amended petition, alleging both surprise and prejudice flowing from the untimely filing. However, Diamond Shamrock did not file a motion to strike the pleading. When the resisting party files a motion to strike a late-filed amendment, Texas case law holds that absent a showing that the resisting party secured a ruling on the motion to strike, we presume, in accordance with Goswami, that the trial court considered the late-filed amendment. See TEX. R. APP. P. 33.1; see also Korthauer, 21 S.W.3d at 578. We also presume that the trial court considered a late-filed petition where the record does not reflect a ruling on either a motion to strike filed by the resisting party or a motion for leave to amend urged by the late filer. See City of Corinth v. Gladys, 916 S.W.2d 618, 621 (Tex. App.-Fort Worth 1996, no writ) ("[B]ecause neither party required the court to rule on either of its motions, we will presume that the amended petition was considered by the trial court.").
This case presents a third circumstance: Brown filed a motion for leave, while Diamond Shamrock filed only a response, not a motion to strike. Application of the Goswami presumption may appear to place the burden unfairly on the party resisting the untimely filing instead of on the dilatory party that missed the court-ordered deadline. See Korthauer, 21 S.W.3d at 578. Nonetheless, we must apply the presumption to late filers who do not seek leave in the first place and when both a motion for leave and a motion to strike are filed but not ruled on by the trial court. Goswami, 751 S.W.2d at 490; Korthauer, 21 S.W.3d at 578. Given this liberality in pleading-amendment practice in Texas, we are reluctant to ignore the Goswami presumption where, as here, the plaintiff filed a motion for leave but did not obtain a ruling, and the defendant filed a response resisting the late filing but not a motion to strike. However, we do not read Goswami as mandating application of its presumption in all cases where the resisting party did not pursue a motion to strike the late-filed pleading. If that were so, there would be no need for the "surprise or prejudice" element of the second prong of Goswami; we would consider only whether the resisting party filed and pursued to a ruling a motion to strike. See Korthauer, 21 S.W.3d at 578 n. 2 ("We note that based on the nature of the amendment (i.e., a clarification rather than a new claim), [the defendant] would not likely have been able to demonstrate surprise or prejudice in any event."). In this case, we conclude that Diamond Shamrock's failure to file a motion to strike is only one factor in analyzing the "surprise or prejudice" prong. See id.
Diamond Shamrock asserted in their response to Brown's motion for leave that the fourth amended petition surprised and prejudiced them, arguing it included claims precluded by a rule 11 agreement between the parties, discussed in more detail below. See TEX. R. CIV. P. 11. After comparing the rule 11 agreement with the fourth amended petition, we agree. We find that Diamond Shamrock showed surprise or prejudice sufficient to overcome the second prong of the test for application of the Goswami presumption that the trial court considered Brown's fourth amended petition in ruling on Diamond Shamrock's motion for summary judgment. See Korthauer, 21 S.W.3d at 577 n. 2. Accordingly, we hold that Brown's fourth amended petition was not properly before the trial court at the time it rendered summary judgment for Diamond Shamrock. Therefore, we conclude that "Plaintiff's Third Amended Original Petition" filed July 9, 2001, was Brown's live pleading.
2. Brown's Live Causes of Action
"Beginning on or about October 18, 1998 and continuing thereafter," Brown alleged in her third amended petition, "Ultramar and others" trespassed on her property by causing a flow of "unspecified liquid to traverse across and inundate [her] property." Further, Brown alleged that Ultramar and others continued a pattern of contaminating the property with "the same, similar or other substances and materials." In addition to the trespass and continuing-trespass claims, Brown alleged other causes of action: (1) fraudulent concealment and (2) fraudulent misrepresentation regarding the substances released, their hazardous nature, and cleanup; (3) negligence; (4) gross negligence; and (5) nuisance. She sought attorney fees and costs, interest, and a permanent injunction: (1) ordering the defendants to cease and desist from trespassing on her property; and (2) requiring them to remove the offensive substance and restore her property to its original condition.
B. The Rule 11 Agreement
On March 25, 2002, the parties filed a "Joint Stipulation of Dismissal of Certain Claims and Parties" (the "Rule 11 Agreement") that recited the following stipulations:
We do not resolve, by our recitation of the facts as they appear in the appellate record before us, any factual disputes. We note that the stipulation bore only the signature of Brown's attorney. In their motion to strike Brown's summary-judgment response, Diamond Shamrock referred to the document as a rule 11 agreement. See Tex. R. Civ. P. 11.
1. All Plaintiffs other than Doris Brown desire to dismiss all of their claims without prejudice.
2. Plaintiff Doris Brown desires to dismiss without prejudice her claims for bodily injury.
4. Plaintiff Doris Brown further desires to dismiss without prejudice her claim that any of the defendants have caused a toxic substance or other contaminant to enter her property.
Paragraph number 3 is marked out.
Paragraph number 3 is marked out.
5. Plaintiff Doris Brown stipulates that the only claim she is asserting in this action is that Diamond Shamrock Refining Company, L.P., Ultramar Diamond Shamrock Corporation, and Diamond Shamrock Refining and Marketing Company caused water to enter her property from its irrigation site, resulting in damage to her property. Diamond Shamrock Refining Company L.P. denies this claim.
The document included Ultramar and Diamond Shamrock Marketing in a hand-written interlineation.
The document included Ultramar and Diamond Shamrock Marketing in a hand-written interlineation.
The parties asked the trial court to enter an order consistent with the stipulations. On March 25, 2002, the trial court ordered dismissal without prejudice of the claims identified in paragraphs numbered 1, 2, and 4 above (the "Rule 11 Order"). Diamond Shamrock moved for summary judgment.
C. The Summary-Judgment Proceedings 1. The Motion for Summary Judgment and Response
In a no-evidence motion for summary judgment, Diamond Shamrock asserted, as a result of the Rule 11 Agreement, that Brown's third amended petition was "a nullity" and should be dismissed "as a ministerial matter." The third amended petition, Diamond Shamrock contended, did not allege any claims that survived the Rule 11 Order. As additional grounds for summary judgment, Diamond Shamrock asserted: (1) there was no evidence of damages; and (2) there was no evidence of causation, arguing there was no evidence connecting Ultramar or Diamond Shamrock Marketing to treated wastewater or indicating either company caused treated wastewater to enter Brown's property.
The trial court notified the parties it would submit the motion for summary judgment on the briefs, without oral argument, on May 17, 2002. Brown filed her summary-judgment response on May 16, 2002.
2. The Summary-Judgment Order
On June 13, 2002, the trial court signed a judgment granting the Diamond Shamrock defendants' motion for summary judgment (the "Summary Judgment"). The Summary Judgment recites in its entirety:
Diamond Shamrock Defendants' Motion for Summary Judgment and No-Evidence Motion for Summary Judgment is GRANTED.
Accordingly, the Court hereby rules that Plaintiff Doris Brown TAKE NOTHING by way of her claims against Ultramar Diamond Shamrock Corporation, Diamond Shamrock Refining Company, L.P[sic], and Diamond Shamrock Refining and Marketing Company, L.P[sic] and a TAKE NOTHING JUDGMENT is hereby entered.
ALL RELIEF NOT EXPRESSLY GRANTED HEREIN AS AGAINST ULTRAMAR DIAMOND SHAMROCK CORPORATION, DIAMOND SHAMROCK REFINING COMPANY, L.P[sic], AND DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, L.P[sic] IS DENIED.
3. The Order Striking Brown's Response
On June 17 [no year], the trial court signed an order granting Diamond Shamrock's motion to strike Brown's response to the summary-judgment motion (the "Strike Order"). The Strike Order recites, "Accordingly it is ORDERED that Plaintiff's summary judgment response and summary judgment evidence shall be stricken in their entirety."
The document is file-marked June 20, 2002.
This record presents a threshold question of the finality of the Summary Judgment. We first establish our own jurisdiction.
II. JURISDICTION
Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Garcia v. Comm'rs Court, 101 S.W.3d 778, 779 (Tex. App.-Corpus Christi 2003, no pet.). We are obligated to determine, sua sponte, our own jurisdiction. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam); Garcia, 101 S.W.3d at 779. Jurisdiction of a court is never presumed. Garcia, 101 S.W.3d at 783. Our jurisdiction is established exclusively by constitutional and statutory enactments. Id. at 784; see, e.g., TEX. CONST. art. V, § 6; TEX. GOV'T CODE ANN. § 22.220 (Vernon 1988). Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see TEX. CIV. PRAC. REM. CODE ANN. § 51.014 (Vernon Supp. 2004). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Garcia, 101 S.W.3d at 784.
A. Finality
A judgment is not final unless it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam); Garcia, 101 S.W.3d at 784. There can be no presumption that a motion for summary judgment addresses all of the movant's claims. McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (per curiam). In cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if it either states with unmistakable clarity that it is a final judgment or actually disposes of all claims and parties then before the court, regardless of its language. Lehmann, 39 S.W.3d at 204; Garcia, 101 S.W.3d at 784. The law does not require that a final judgment be in any particular form. Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784. Therefore, whether a summary-judgment order is a final judgment must be determined from its language and the record in the case. Lehmann, 39 S.W.3d at 195; Garcia, 101 S.W.3d at 784.
B. Jurisdictional Analysis
The Summary Judgment ordered a take-nothing judgment on all of Brown's claims against Ultramar, Diamond Shamrock Refining, and Diamond Shamrock Marketing. It contained a "Mother Hubbard" clause disposing of all of Brown's claims. We conclude that the Summary Judgment states "with unmistakable clarity that it is a final judgment." See Lehmann, 39 S.W.3d at 204, 206 ("[A]n order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition."); see also Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam). We hold we have jurisdiction over this appeal.
III. DISPOSITION A. Untimeliness of Brown's Summary-Judgment Response
In her second issue, Brown contends that the trial court abused its discretion by not considering her summary-judgment evidence. She asserts in her third issue that the trial court abused its discretion in striking her summary-judgment response. Brown argues she filed the response well in advance of the trial court's disposition of the summary-judgment motion. She notes that the trial court did not sign the Strike Order until after it signed the Summary Judgment.
The summary-judgment rule does not mandate an oral hearing in all cases. Gordon v. Ward, 822 S.W.2d 90, 92 (Tex. App.-Houston [1st Dist.] 1991, writ denied). Parties cannot present oral testimony during a summary-judgment hearing, so no evidentiary record is created. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex. 1992) (orig. proceeding). As happened here, a trial court may rule on a summary-judgment motion, without a hearing, on the basis of the written motion, response, and supporting summary-judgment evidence. Martin v. Cohen, 804 S.W.2d 201, 202-03 (Tex. App.-Houston [14th Dist.] 1991, no writ).
Nothing in rule 166a sets a time limit for rendering a summary judgment. See Tex. R. Civ. P. 166a. We note that if the trial court here set a new submission date, the record does not reflect any notice to the parties. We conclude that the trial court kept the motion under advisement from May 17, 2002 until it ruled on the motion on June 13, 2002. Rule 166a required Brown to file her summary-judgment response "not later than seven days prior to the day of hearing." See TEX. R. CIV. P. 166a(c). Brown did not file her summary-judgment response until May 16, 2002, the day before the date the trial court took the motion under submission. She did not seek leave of court to file a late response. See id. Accordingly, we hold that the trial court did not abuse its discretion by not considering Brown's summary-judgment evidence and in striking her response, even though it formally struck the response only after granting Diamond Shamrock's motion for summary judgment. See id. We overrule Brown's second and third issues.
The Summary Judgment granted judgment on all of Brown's causes of action, which at the time of the judgment were: (1) trespass; (2) continuing trespass; (3) fraudulent concealment; (4) fraudulent misrepresentation; (5) negligence; (6) gross negligence; and (7) nuisance. On appeal, Brown complains of the trial court's judgment on five of her causes of action: (1) negligence; (2) gross negligence; (3) nuisance; (4) trespass; and (5) continuing trespass. Accordingly, we consider whether Diamond Shamrock is entitled to summary judgment on those claims only. See Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g). Because Brown does not challenge summary judgment on her fraudulent-concealment and fraudulent-misrepresentation claims, we affirm the trial court's summary judgment on those causes of action.
B. No-Evidence Summary-Judgment Standard of Review
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. TEX. R. CIV. P. 166a(i), (c); Ortega, 97 S.W.3d at 771. The difference in relative burdens between the parties in the two types of summary-judgment motions is significant. Id. Determination of the nature of the motion for summary judgment under analysis is critical. Id.
Here, the motion for summary judgment unambiguously stated that summary judgment "is required under Rule 166a(i) of the Texas Rules of Civil Procedure." We conclude that Diamond Shamrock presented only a no-evidence motion for summary judgment. A no-evidence motion asserts that there is no evidence of one or more essential elements of a claim on which the adverse party will bear the burden of proof at trial. TEX. R. CIV. P. 166a(i). We apply the same legal-sufficiency standard of review to a no-evidence summary judgment as we apply to a directed verdict. Ortega, 97 S.W.3d at 772. To raise a genuine issue of material fact and thus defeat a no-evidence motion for summary judgment, the nonmovant only needs to produce a scintilla of probative evidence. Id. "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." Id. (citing Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983))). Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ortega, 97 S.W.3d at 772 (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). The movant has no burden to attach any evidence to a no-evidence motion for summary judgment. TEX. R. CIV. P. 166a(i); Ortega, 97 S.W.3d at 772. The nonmovant bears the entire burden of producing evidence to defeat a no-evidence motion for summary judgment. Ortega, 97 S.W.3d at 772.
However, the party moving for summary judgment under rule 166(a)(i) must fulfill certain specific procedural requirements and is subject to certain restrictions. TEX. R. CIV. P. 166(a)(i); Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 252 (Tex. App.-Corpus Christi 2001, pet. denied). Among these are that the motion must state the elements of the claim as to which there is no evidence. Id. It must be specific in challenging the evidentiary support for a particular element of the claim. Id. It may be brought only against essential elements of claims on which the nonmovant would have the burden of proof at trial. Id. Finally, a no-evidence motion for summary judgment may not be conclusory or a general no-evidence challenge. Id. This Court strictly construes the requirements of rule 166a(i). Michael v. Dyke, 41 S.W.3d 746, 751 n. 3 (Tex. App.-Corpus Christi 2001, no pet.).
C. No-Evidence Summary-Judgment Analysis
In the motion, Diamond Shamrock claims that the "Petition asserts only contamination claims," without specifying what the challenged claims are or the specific elements to which the motion is directed. The motion also asserts that the Rule 11 Agreement permitted Brown to continue to prosecute the case as a trespass case for water damage, but that "does not mean that she has asserted that claim." Further, Diamond Shamrock generally asserted in the motion there was no evidence they caused any injury to Brown and no evidence "they did anything wrong." These are merely conclusory allegations.
However, the motion also states that even "if Brown does assert a claim for property damage based on water entering her property, there is no evidence that Brown's property was damaged by any act of the Diamond Shamrock Parties . . . [and] Brown's property damage claims fail." Citing Brown's third amended petition, the motion asserts that the following facts are undisputed: (1) Diamond Shamrock Refining operates an irrigation site near Three Rivers, Texas through which it disposes of some of the treated wastewater from its refinery located there; and (2) Brown owns land adjacent to the irrigation site. Also as an "undisputed fact," the motion asserts that Brown's damages as alleged arise solely from the migration of contaminants from the irrigation site onto her property. Thus, Diamond Shamrock concludes, the third amended petition does not allege any claims that survived the Rule 11 Order.
We interpret Diamond Shamrock's argument to be that Brown's allegation in her third amended petition that contaminants migrated onto her property does not encompass the claim Brown specifically retained in the Rule 11 Agreement: that Diamond Shamrock "caused water to enter her property from its irrigation site, resulting in damage to her property." In her third amended petition, Brown alleged that Ultramar "and others caused a flow of unspecified liquid to traverse across and inundate Plaintiff's property." While Brown alleges that the unspecified liquid "was made up or contained harmful and toxic chemical substances and hazardous materials," we do not interpret Brown's pleading as narrowly as Diamond Shamrock suggests. The purpose of a pleading is to give the adverse party notice of the asserted claims or defenses and the relief sought. Woolam v. Tussing, 54 S.W.3d 442, 447 (Tex. App.-Corpus Christi 2001, no pet.) (and cited authorities). The general rule is that we will construe a pleading as favorably as possible to the pleader. Id. at 448. "Every fact will be supplied that can reasonably be inferred from what is specifically stated." Id. (quoting Gulf, C. S.F. Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963)). Diamond Shamrock's argument suggests that the Rule 11 Agreement contemplated a claim Brown had not yet asserted. If that were the case, the March 25, 2002 Rule 11 Order would have disposed of all claims in the litigation and, in effect, would have been a final judgment. However, Diamond Shamrock went on to file the summary-judgment motion under review here, and the trial court did not sign a final judgment until June 13, 2002. We conclude that Brown's third amended petition reasonably can be read to infer an allegation of trespass of wastewater onto her property, a claim that survived the Rule 11 Agreement. See Tussing, 54 S.W.3d at 447.
Diamond Shamrock also asserted in the motion for summary judgment there is no evidence of: (1) damages, arguing that damages are a required element of any claim for property damage Brown could assert; and (2) causation, arguing that neither Ultramar or Diamond Shamrock Marketing caused the wastewater to enter Brown's property. We find that these assertions, while not models of specificity in that Diamond Shamrock did not direct them to any particular cause of action, adequately raise no-evidence grounds on the elements of damages and causation. See Dyke, 41 S.W.3d at 751 n. 3. We examine each of these elements in turn.
1. Damages a. Negligence, Gross Negligence, and Nuisance
Damages are essential elements of causes of action for negligence and gross negligence. See Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995). Damages also are an essential element of a cause of action for nuisance. See Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 689 (Tex. App.-Tyler 1997, pet. denied) ("We must next examine applicable Texas law regarding the elements of nuisance necessary to support a claim for damages."). Brown did not respond timely to the summary-judgment motion with any proof of damages. Accordingly, we hold that Diamond Shamrock is entitled to judgment as a matter of law on Brown's negligence, gross negligence, and nuisance causes of action. See TEX. R. CIV. P. 166a(i).
b. Trespass and Continuing Trespass
Every unauthorized entry is a trespass even if no damage is done. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex. 1997); Gen. Mills Restaurants, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.-Dallas 2000, no pet.). Further, a trespass can be either by entry of a person on another's land or by causing or permitting a thing to cross the boundary of the premises. City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex. App.-Fort Worth 1994, writ dism'd w.o.j.) (citing Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411, 416 (Tex. 1961)). Finally, a trespass may be committed on, beneath, or above the surface of the earth. City of Fort Worth, 873 S.W.2d at 769.
Even though Brown did not respond timely with summary-judgment proof that Diamond Shamrock did any injury by entering her property, she still may be entitled to nominal damages for the trespass. General Mills Restaurants, Inc., 12 S.W.3d at 833; see Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573 (Tex. Civ. App.-Houston [14th Dist.] 1981, no writ) ("The law is well settled that a trespasser is liable to the property owner even though there is no proof of actual damages in any specific amount."); Henry v. Williams, 132 S.W.2d 633, 634 (Tex. Civ. App.-Beaumont 1939, no writ) (by alleging and proving trespass, appellants "were entitled, at least, to nominal damages"). We find that damages are not an "essential element" of the trespass and continuing-trespass claims on which Brown bears the burden of proof at trial. See TEX. R. CIV. P. 166a(i). We conclude that the damages elements of Brown's trespass and continuing-trespass claims are not the proper subject of a no-evidence motion for summary judgment. See Koch Ref. Co., 60 S.W.3d at 252. Moreover, Brown sought injunctive relief in her third amended petition. Injunction is a proper remedy to restrain repeated or continuing trespasses. City of Fort Worth, 873 S.W.2d at 769. Accordingly, we hold that Diamond Shamrock did not carry its no-evidence summary-judgment burden to prove its entitlement to judgment as a matter of law on the damages elements of Brown's claims for trespass and continuing trespass. See TEX. R. CIV. P. 166a(i).
This holding only addresses Diamond Shamrock's entitlement to a no-evidence summary judgment on the element of damages in Brown's trespass and continuing-trespass claims. We do not preclude by this holding Brown's presentation of proof at trial of more than nominal damages.
2. Causation
Diamond Shamrock limited the no-evidence motion on the causation element of "any claim for property damage Brown could assert" to Ultramar and Diamond Shamrock Marketing. On appeal, Diamond Shamrock confirms that the motion did not seek summary judgment on any other aspect of causation. Brown did not respond timely to the summary-judgment motion with any proof of causation. Thus, we hold that Diamond Shamrock is entitled to judgment as a matter of law on Brown's causes of action for trespass and continuing trespass against Ultramar and Diamond Shamrock Marketing. See TEX. R. CIV. P. 166a(i).
The summary-judgment motion did not address causation grounds with regard to Diamond Shamrock Refining. Moreover, the summary-judgment motion did not identify as a disputed fact that Diamond Shamrock Refining operates an irrigation site through which it disposes of treated wastewater. Nor did the motion dispute that Brown owns land adjacent to the irrigation site.
Nonetheless, the trial court granted summary judgment against Brown on all of her causes of action against each of the Diamond Shamrock entities, including Diamond Shamrock Refining. A trial court may not grant summary judgment on a cause of action the movant did not address in the motion. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). Accordingly, we hold that Diamond Shamrock did not carry its no-evidence summary-judgment burden to prove its entitlement to judgment as a matter of law on causation grounds on Brown's claims for trespass and continuing trespass against Diamond Shamrock Refining. See TEX. R. CIV. P. 166a(i).
We sustain Brown's first issue as it relates to her claims for trespass and continuing trespass against Diamond Shamrock Refining. We overrule Brown's first issue as to all other claims.
IV. CONCLUSION
We have overruled Brown's second and third issues and sustained in part and overruled in part her first issue. We affirm the trial court's summary judgment in favor of Ultramar Diamond Shamrock Corporation and Diamond Shamrock Refining and Marketing Company, L.P., on Brown's claims for fraudulent concealment, fraudulent misrepresentation, negligence, gross negligence, nuisance, trespass, and continuing trespass. We also affirm the trial court's summary judgment in favor of Diamond Shamrock Refining Company, L.P. on Brown's claims for fraudulent concealment, fraudulent misrepresentation, negligence, gross negligence, and nuisance. We reverse the judgment of the trial court and remand for further proceedings on Brown's claims of trespass and continuing trespass against Diamond Shamrock Refining Company, L.P.