Opinion
No. 02-03-312-CV
Delivered: June 3, 2004.
Appeal from the 158th District Court of Denton County.
Dickson Associates, P.C., and D. Bradley Dickison, Dallas, TX, and Grissom Thompson, L.L.P., and Doanld H. Grisson, Auston, TX, for appellant.
Guida, Slavich Flores, P.C., and Bruce M. Flowers, and Steven F. Barrett, Dallas, TX, and Minor Jester, and Tom D. Jester, Jr., Denton, TX, for appellee.
Panel B: HOLMAN, GARDNER, and WALKER, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
I. Introduction
Appellant K-7 Enterprises, L.P. sued Appellees, the owners and operators of PJ's Convenience Stores, Inc., for damages occurring when toxic chemicals leaked from underground gasoline tanks at PJ's #2 convenience store and migrated onto K-7's adjacent property, contaminating it. The trial court granted a traditional summary judgment for Appellees on limitations grounds. Because K-7's controverting summary judgment evidence raises genuine issues of material fact as to whether the contamination damages to K-7's property were temporary and not permanent, we reverse the trial court's summary judgment as to K-7's claim for damages to its property sustained during the two years prior to filing suit, that is injuries occurring on or after January 15, 2001, and remand those claims to the trial court. We affirm the trial court's summary judgment on K-7's claims for damages to its property sustained more than two years prior to filing suit, that is prior to January 15, 2001.
II. Standard of Review
A defendant is entitled to summary judgment on an affirmative defense such as limitations if the defendant conclusively proves all the elements of the affirmative defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). Once the defendant produces sufficient evidence to establish the right to summary judgment based on limitations, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to a matter in avoidance of limitations. See, e.g., Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975); Forrest v. Vital Earth Res., 120 S.W.3d 480, 487 (Tex. App.-Texarkana 2003, pet. denied).
In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Tex. R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in the nonmovant's favor. Nixon, 690 S.W.2d at 549. Applying this standard of review to the summary judgment evidence, the facts viewed in the light most favorable to K-7 are set forth below.
III. Factual Background
In February 1998, a prospective purchaser of the K-7 property obtained an environmental site assessment of the property. The results of the site assessment soil borings and groundwater samples revealed that the K-7 property was contaminated with toxic substances generally associated with the underground storage of gasoline. The toxic substances present in the K-7 soil and groundwater exceeded the state-allowed levels. A PJ's convenience store located adjacent to the K-7 property, PJ's #2, sold gasoline and stored it in underground storage tanks. Consequently, K-7 made a claim against PJ's Convenience Stores, Inc.'s insurer, Tank Owners Mutual Insurance Company. The insurance company agreed to clean up or remediate K-7's property and to be responsible for any damages. Monitoring wells were placed on the K-7 property. Eventually, the monitoring wells were removed, and K-7 believed that its property had been cleaned and that the contamination was now below state action levels. K-7 later learned that subsequent leaks had occurred at PJ's # 2 and that the contaminants migrated sporadically onto K-7's property depending on rainfall and other factors. K-7 filed suit on January 15, 2003.
K-7's president, Dennis Koop, explained in his controverting affidavit that in May 2002 he learned from the Texas Natural Resource Conservation Commission (TNRCC) records that TNRCC "had found that another release of gasoline had occurred between December 1999 and March 2000." A TNRCC interoffice memorandum also filed by K-7 as controverting summary judgment evidence indicates that, based on an increase in the measure of toxins from 7.1 ppm to 326.55 ppm, "it appears that a subsequent release from the UST [underground storage tank] system occurred between 12/99 and 3/00." The memo explains that "the groundwater gradient [from P.J.'s convenience store] is to the south-southeast," and the parties agree that the K-7 property is to the south of PJ's convenience store.
K-7 also attached the affidavit of Daniel Airey as controverting summary judgment evidence. Airey's affidavit indicates that he has been "personally involved in the investigation of the source and impact of the hydrocarbon contamination of K-7 property." According to Airey:
Contaminant migration direction has been documented on multiple occasions to be from the PJ's #2 facility towards the K-7 property. The release and migration of contaminants from the PJ's #2 property onto the K-7 property is sporadic and intermittent based on multiple factors such as rainfall and the heterogeneity of the subsurface lithology, and has occurred periodically during the period of 1998 to the present as well as many other periods of time. . . . The injury to the K-7 property is periodic, sporadic, and intermittent, and is not constant and continuous.
Another of K-7's experts, Sullivan Curran, executed an affidavit that K-7 relied upon as controverting summary judgment evidence explaining discrepancies in Appellees' monthly inventory control sheets for gasoline stored on the PJ's #2 property. Curran summarized that the records "show significant discrepancies for the years 2001 and 2002 in Unleaded, Plus and Super gasoline quantities" delivered to PJ's #2 and those quantities accounted for by PJ's # 2 "resulted in significant unaccounted losses of gasoline stored and dispensed." Curran explained that in addition to the intermittent or sporadic gasoline losses, corrected data from the inventory control sheets show the likelihood of a separate and significant loss in Super gasoline during May and June of 2002.
IV. Appellant's Controverting Summary Judgment Evidence Raises Genuine Issues of Material Fact
K-7's original suit sought damages because "[d]ue to the negligent, careless, and/or reckless behavior of one or more of these Defendants, these underground storage tank systems have leaked on more than one occasion," and alleged that the petroleum products migrated underground and contaminated K-7's property. Appellees moved for summary judgment on the affirmative defense of limitations, alleging that "Plaintiff admits having had actual knowledge of the contamination in February 1998, almost five years before Plaintiff filed this lawsuit."
A suit for damage to land must be brought not later than two years after the cause of action accrues. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon Supp. 2004). The determination of the accrual date depends upon whether the damage to the land is characterized as permanent or temporary. Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 567 (Tex. App.-Texarkana 2000, pet. denied). An action for permanent damages to land accrues, for limitations purposes, upon discovery of the first actionable injury. Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984); Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 354 (1954). But damages for temporary injuries may be recovered for injuries sustained within the two years prior to filing suit. Bayouth, 671 S.W.2d at 868. The character of an injury as either permanent or temporary is determined by its continuum:
Permanent injuries to land result from an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely; the injury must be constant and continuous, not occasional, intermittent or recurrent. Temporary injuries, however, have been found where the injury is not continuous, but is sporadic and contingent upon some irregular force such as rain.
Id.
While these general rules governing whether an injury is temporary or permanent seem straightforward, applying them to the facts involved in any particular case has proved difficult. Nugent, 30 S.W.3d at 569 (setting forth an excellent discussion of cases addressing whether various types of injuries to land are permanent or temporary). In determining whether an injury to land is permanent or temporary, it is helpful to focus first on the activity causing the injury and then on the injury itself. Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 273 (Tex. App.-El Paso 2001, pet. denied).
Here, the activity involved the underground storage of gasoline. Appellees' activity, simply storing gasoline in tanks underground, did not cause any damage to K-7's property. The summary judgment evidence shows that the injury causing damage to K-7's property was multiple gasoline leaks from the underground storage tanks on the PJ's # 2 property, occurring on distinct occasions including one in May or June of 2002, and the sporadic and intermittent migration of the contaminants onto K-7's property depending on rainfall and the "heterogeneity of the subsurface lithology." No summary judgment evidence exists in the record that the gasoline storage tanks at PJ's # 2 leaked continuously. In fact, Appellees' summary judgment evidence includes tank tightness tests performed on the tanks at PJ's #2 indicating that at the times the tanks were tested they were not leaking. Viewed in the light most favorable to K-7, these facts raise a genuine issue of material fact as to the nature of the damages to the K-7 property. See, e.g., Bayouth, 671 S.W.2d at 868 (holding a genuine issue of material fact exists as to whether damage from salt water migration onto adjacent land was a temporary injury); see also Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978) (holding damage from flooding of land occurring only during heavy rains because of a storm drainage system that diverted the direction of the surface drainage a temporary injury); Atlas Chem. Indus., Inc., v. Anderson, 524 S.W.2d 681, 684-85 (Tex. 1975) (holding damage from deposits left on land when wastewater from chemical plant discharged into creek that flowed onto land a temporary injury); Austin N.W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484, 485 (1891) (holding flooding of land occurring only during heavy rains because of a railroad's construction of roadbeds and culverts that changed the natural flow of surface water a temporary injury); Nugent, 30 S.W.3d at 566, 571 (holding damage from arsenic contamination of land occurring when rain washed chicken litter and hatchery waste downstream a temporary injury). In other words, in light of K-7's controverting summary judgment evidence that the underground storage tanks at PJ's #2 suffered multiple, distinct gasoline discharges and that the discharged gasoline migrated sporadically and intermittently onto K-7's property, Appellees did not conclusively establish that the injuries to K-7's property were permanent. Cf. Fromme, 269 S.W.2d at 337 (holding damage from water flowing continuously from compression station across plaintiff's property was a permanent injury); Walton, 65 S.W.3d at 272 (holding damage from water seeping through salt pit filled in the late 1960's was permanent and suit brought in 1996 was time barred).
We next address Appellees' arguments concerning K-7's summary judgment evidence. Appellees lodged objections to portions of K-7's summary judgment evidence, including Airey's and Curran's affidavits. K-7 subsequently tendered supplemental affidavits from Airey and Curran. Appellees lodged objections to the supplemental affidavits, but the trial court did not rule on them and signed an order granting K-7 leave to file the supplemental affidavits.
Appellees claim on appeal that the trial court "implicitly" sustained their objections to K-7's summary judgment evidence and urge this court to not consider the objected-to evidence. A party must obtain a ruling on an objection as to defects in the form of an affidavit or attachment, or it is not preserved for our review. See Tex. R. Civ. P. 166a(f) (stating "Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend."); Wren v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 498 (Tex. App.-Fort Worth 2002, no pet.) (op. on reh'g). Because the trial court did not rule on Appellees' objections, their form objections are not preserved for our review. See Wren, 73 S.W.3d at 498. Appellees lodged substantive objections to Airey's and Curran's supplemental affidavits, but when the trial court granted K-7 leave to file those affidavits it implicitly overruled Appellees' objections. See Tex.R.App.P. 33.1(a); see also Rapp v. Mandel Wright, P.C., 127 S.W.3d 888, 895 (Tex. App.-Corpus Christi 2004, pet. filed) (op. on reh'g) (recognizing trial court implicitly overruled appellant's motion to strike intervention by proceeding to trial and granting relief for intervener); Chappell v. State, 850 S.W.2d 508, 510 (Tex.Crim.App. 1993) (recognizing trial court implicitly overruled defendant's objection to jury shuffle by granting State's motion to shuffle). When the trial court took action inconsistent with the sustaining of Appellees' objections to Airey's and Curran's affidavits, i.e., signing an order granting leave to file the supplemental affidavits, it implicitly overruled Appellees' objections, rather than implicitly sustaining them as Appellees argue. Consequently, we consider Airey's and Curran's supplemental affidavits as properly part of the summary judgment record before us.
We sustain K-7's first issue.
V. Conclusion
Having sustained K-7's first issue, we reverse the trial court's summary judgment for Appellees foreclosing K-7's right of recovery for the successive injuries to its property occurring on or after January 15, 2001 and remand those claims to the trial court. We affirm the trial court's summary judgment for Appellees as to any injuries to the K-7 property occurring before January 15, 2001.