Opinion
NO. 03-18-00752-CV
11-10-2020
Juan Martin Villarreal, Appellant v. The State of Texas, Appellee
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GV-09-000938 , THE HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING MEMORANDUM OPINION
Juan Villarreal appeals from the trial court's final summary judgment on the State's suit alleging that Villarreal collected, disposed, and stored solid waste and municipal solid waste (MSW) on his property in violation of the Texas Water Code, the Texas Administrative Code, and a 2007 agreed order between Villarreal and the Texas Commission on Environmental Quality (TCEQ). The summary judgment order granted the State's motion for summary judgment and request for permanent injunction, and provided that the State shall recover from Villarreal $192,450 in statutory civil penalties; $2,700 in unpaid administrative penalties; and $17,000 in attorney's fees. For the reasons that follow, we affirm the summary judgment in part, but we reverse the award of statutory civil penalties and attorney's fees and remand for further proceedings consistent with this opinion.
BACKGROUND
The factual summary is taken from the summary judgment record, viewing the evidence in the light most favorable to Villarreal as the nonmovant. See B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017).
In 2003, Villarreal bought a 41-acre property (the Site) from El Chore Pit, Inc.; Raul Salinas, Jr.; and Leticia Salinas in two transactions: a land transaction and a transaction involving the purchase of Raul Salinas's equipment. Villarreal testified that he "needed a yard for all of the equipment and materials [his] business [Villarreal Paving and Demolition] uses on a day to day basis, including [his] fleet of vehicles." As part of the equipment transaction, Villarreal agreed with Salinas that Salinas would have access to the land until the note on the purchase of equipment was paid off.
In 2006, TCEQ accused Villarreal of allowing Salinas to dump MSW on the property—a problem that allegedly occurred both before and after the 2003 transaction—and presented Villarreal with an agreed order to sign. Later, however, Villarreal averred in a 2018 affidavit that "[a]t the time, I did not understand or read in English" and "[t]he agreed order was in English." He said that the TCEQ representative explained in Spanish that if he signed the order, he would just pay a fine and would not be liable for any MSW dumped "from the moment [Villarreal] signed [the] order and back through time" but would be "liable for all [MSW] disposed of at the property from the moment I signed the agreed order and forward."
TCEQ and Villarreal entered into the agreed order effective on May 25, 2007 (the 2007 Order). The 2007 Order includes findings of fact that Villarreal is the owner and operator of an unauthorized facility that involves or involved the management of MSW and that in July 2006, TCEQ staff observed that Villarreal allowed the disposal of MSW that constituted "the equivalent of ten, forty cubic yard containers, and consisted of brush, plastic sheeting, plastic piping, metal, rebar, and construction and demolition debris." The 2007 Order assessed $6,500 in administrative fees and required Villarreal to "[i]mmediately cease accepting any additional waste at the Site without proper authorization," to ensure that all solid waste at the Site be removed and disposed of by July 2007, and to submit written certification of compliance.
In 2008, the TCEQ conducted a compliance status evaluation, including entrance and exit interviews with the Site office manager. As described in the investigation report, the Site consisted of an office, a workshop, and an active sand pit. The investigator photographed two trucks—one of which was registered to Villarreal—unloading waste consisting of "a mixture of brush, yard waste, inert material and solid waste." The investigator noted, with photographic documentation, that "it was evident that the site was being filled with fill material that consisted of inert material, [MSW,] and including but not limited to construction or demolition waste, solid waste, brush, wood scrap, metal scrap, wooden pallets, scrap tires, [PVC] piping, plastic planters, rubbish and yard waste," and that "at least 5-8 scrap tires were at least fully or partially visible at the time of the investigation." The investigator also "noted the presence of heavy machinery at the site which was used to move the waste and cover it up with soil" and explained that "[t]he operation at the site resembled disposal operations at a permitted landfill where waste would be accepted and placed in an area and covered with soil." The disposal area encompassed three to five acres, although the investigator noted that the assessment of the amount of waste at the site "may not be possible because the aforementioned types of waste disposed at the site are mixed and have been covered with soil, dirt, brick, inert material and concrete with reinforcing steel." The investigator stated that in his exit interview with the office manager, he explained that "the sand pit could not be filled in with any municipal solid waste"; that "inert material could be accepted at the pit including non-putrescible materials such as soil, dirt, clay, sand, gravel, brick, glass, concrete with reinforcing rebar, and rock" but "may not be used to cover up unauthorized waste"; and that all MSW would need to be removed pursuant to the 2007 Order. The investigation report recommended referral to the Attorney General for further action.
In 2009, the State sued Villarreal and El Chore Pit, Inc., seeking to enforce the TCEQ rules through injunctive relief and civil penalties and requesting attorney's fees and costs. See Tex. Water Code §§ 7.032, .102, .105, .108. Based on the 2008 investigation, the State alleged a "continuous violation" of the Texas Water Code, TCEQ rules, and the 2007 Order. See id. §§ 7.101 ("A person may not cause, suffer, allow, or permit a violation of a statute within the commission's jurisdiction or a rule adopted or an order or permit issued under such a statute."), .102 ("Each day of a continuing violation is a separate violation."); 30 Tex. Admin. Code §§ 330.7(a) (Permit Required) (requiring that "no person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any solid waste" without permit or authorization from TCEQ), .15(c) (General Prohibitions) (mandating that "a person may not cause, suffer, allow, or permit the dumping or disposal" of MSW without written authorization from TCEQ). Villarreal answered with a general denial.
Unless otherwise noted, cited regulations are to the TCEQ's rules as currently enacted.
The record indicates that little activity occurred in the cause until February 2018, when the State amended its petition to include additional alleged continuing violations observed in a February 2012 investigation and a May 2017 investigation. In July 2018, the State filed a motion for summary judgment, attaching, as relevant here, the 2007 Order; the 2008, 2012, and 2017 investigation reports; an attorney's fee affidavit requesting $17,000; an invoice for $2,700 in outstanding administrative penalties related to the 2007 Order; and a negative certification that TCEQ has not found any records authorizing the storage, processing, or disposal of MSW at the Site. As to the statutory civil penalties, the State stipulated that for purposes of the motion (1) the beginning date of the violation would be July 24, 2007, the date that the 2007 Order required Villarreal to remove all MSW from the Site, and the ending date would be February 5, 2018, the date the amended petition was filed—3,849 total days; and (2) only the minimum statutory penalty of $50 per day was being requested, thereby removing a fact question as to the appropriate per diem penalty amount. Thus, the State requested a summary judgment for $192,450 in statutory civil penalties—$50 per day for 3,849 days—and a permanent injunction.
In addition to the information provided in the 2008 investigation report, as described above, the 2012 and 2017 investigation reports attached to the State's motion provided the following information. The 2012 investigation report notes with photographic documentation that it appeared that "the pit was still operating as fresh tire tracks were observed, and green brush wastes in the form of palm fronds were observed inside the pit area"; that "additional construction or demolition wastes (concrete, cinder blocks and bricks) had been disposed since the last on-site investigation"; that "[p]lastic bags containing household wastes were observed in areas outside the pit"; that "[d]etoriorating bags containing used clothing wastes inside the pit were also observed"; that a motor boat and a "pile of 50 vehicle and equipment scrap tires" were observed in the pit; and that one photo "shows possible groundwater seeping to the ground surface." The report concluded that "more than 226 cubic yards of household waste, 103 cubic yards of brush wastes, 50 scrap tires, construction or demolition wastes, PVC piping, and an inboard motor boat were observed" during the investigation and that "the compliance status of the site remains unchanged from [the 2008 investigation]." At the bottom of the report's conclusion and separate from the body paragraphs, the report states in bold text: "No Violations Associated to this Investigation."
The 2017 investigation report states, "Based on the investigation findings, the regulated entity is in violation of the Agreed [2007] Order." The investigator noted that "the site was in full operation (waste accepted, unloaded, sorted, and compacted)" and that she "observed dump trucks and trucks with trailers entering and leaving the site," "onsite operators sorting and compacting the waste piles using a front end loader," "onsite operators compacting and covering the waste piles using the dirt/gravel," and operators unloading and sorting inert material and construction and demolition material. During her investigation, she also "observed MSW which consisted of[] asphalt, comingled concrete material, comingled brush piles, brush, treated lumber, a large pit of MSW; household waste, plastics, treated lumber, insulation material, buried tires, shingles, construction and demolition waste," and "bags labeled asbestos." The investigation report includes documented photographic evidence and calculated a total of 539,466.85 cubic yards of MSW onsite. Finally, similar to the 2012 investigation report, the report states in bold below the conclusion: "No Violations Associated to this Investigation."
Villarreal responded to the State's motion for summary judgment and attached affidavits from him and his daughter, landfill receipts, a report and affidavit from an asbestos building inspector, and a burn permit. In his affidavit, Villarreal explained that when he demolishes buildings with his business, "the landfill will not accept our materials straight from the demolition site either because the items are too mixed, or too heavy to cover up"; that he therefore "bring[s] the items back to [the Site] in order to sort them for the landfill"; and that "[o]nce the items are separated, [he] bring[s] the items which [h]e cannot keep to the landfill." He acknowledged that some of the pictures attached to the State's investigative reports "show trucks dumping materials onto the ground" but explained that "[t]his is where we would sort the materials for the landfill in order to bring it to the landfill." He also testified to the following: • "[t]he metal/concrete/plastic piping, fencing, trailers, wood framing[] stored in the pit are all used for my business and are not waste"; • "[t]he brush on the property is properly burned" pursuant to the burn permit attached to his response; • "[a]ny plastic bags or other trash which were on the property was the result of trespassers coming onto the property and dumping trash onto the property" and "[w]e have called the police" and "remove the trash when we discover it"; and • "[w]hen the tires become too worn to use, we stack them until we have at least 350, at which point the recycling center truck will come and pick up the tires," but "[t]he recycling center truck will not come unless we have at least 350 tires." Villarreal's daughter—who has worked as a supervisor for Villarreal Paving and Demolition for 15 years—averred that she and her father "intend to construct improvements" upon the Site and that "[w]e are currently filling the pit with inert material such as concrete, rock, dirt, and bricks so that we can build an office on the pit and use it as an automobile junkyard." Finally, the asbestos building inspector's report states, among other things, that "[t]he pit appeared clean and clear of debris that would demonstrate current use of any kind of landfill." Accordingly, Villarreal claimed that there are genuine issues of material fact, which prevent granting the State's motion for summary judgment.
In reply, the State objected to the affidavits from the interested witnesses on multiple grounds, but the record does not indicate that the trial court expressly ruled on the objections.
After a hearing, the trial court granted the State's motion for summary judgment, awarding the State judgment against Villarreal in the amounts of $192,450 in statutory civil penalties; $2,700 in unpaid administrative penalties; and $17,000 in attorney's fees. The trial court also granted a permanent injunction requiring Villarreal to cease accepting any additional MSW or solid waste at the Site, to remove all MSW from the Site within 120 days, and to provide certification of compliance within 150 days. Villarreal appeals from this final summary judgment order.
STANDARD OF REVIEW
"We review a grant of summary judgment de novo." B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017) (quoting SeaBright Ins. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015)). In a traditional motion for summary judgment, the movant has the burden to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. (citing Lopez, 465 S.W.3d at 641; Tex. R. Civ. P. 166a(c)). "We review summary judgment evidence 'in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.'" Id. (quoting Lopez, 465 S.W.3d at 641). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. See KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019) (citing Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).
DISCUSSION
On appeal, Villarreal raises four issues. First, Villarreal argues that the trial court erred in granting summary judgment because he was filling his pit with permissible materials—not MSW or solid waste—and therefore did not violate Texas law or the 2007 Order. Second, Villarreal argues that there was legally insufficient evidence to support the penalty award of $50 per day for 3,849 days. In his third and fourth issues, Villarreal argues that the trial court erred in awarding attorney's fees and injunctive relief because it improperly granted summary judgment.
MSW and Solid Waste
The State sued Villarreal for violating section 7.101 of the Texas Water Code, subsections 330.7(a) and 330.15(c) of Title 30 of the Texas Administrative Code, and Provision 2.c of the 2007 Order. As relevant here, these provisions state:
Section 7.101: "A person may not cause, suffer, allow, or permit a violation of a statute within the commission's jurisdiction or a rule adopted or an order or permit issued under such a statute."Tex. Water Code § 7.101(c); 30 Tex. Admin. Code §§ 330.7(a), .15(c).
Subsection 330.7(a): "Except as provided in §§ 330.9, 330.11, 330.13, or 330.25 of this title . . ., no person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any solid waste unless such activity is authorized by a permit or other authorization from the commission."
Subsection 330.15(c): "Except as otherwise authorized by this chapter, a person may not cause, suffer, allow, or permit the dumping or disposal of MSW without the written authorization of the commission."
Provision 2.c: "Within 60 days after the effective date of this Agreed [2007] Order, ensure that all solid waste disposed of at the Site is removed and disposed of at a permitted municipal solid waste landfill[.]"
Villarreal does not dispute that he lacks authorization or a permit for purposes of subsections 330.7(a) and 330.15(c). Moreover, Villarreal admits in his affidavit that he transports demolition materials that are "too mixed" straight from the demolition site and that he "bring[s] the items back to [his] property in order to sort them for the landfill." He then separates and later brings to the landfill those "items which we cannot keep" and keeps the receipts. Such items constitute "construction or demolition waste" and would be classified as solid waste or MSW. See 30 Tex. Admin. Code § 330.3(33) (Definitions) (defining "[c]onstruction or demolition waste" as "[w]aste resulting from construction or demolition projects"), (88) (stating that "[m]unicipal solid waste" includes "[s]olid waste resulting from or incidental to . . . commercial . . . activities, including . . . all other solid waste other than industrial solid waste"); (145) (stating that "[s]olid waste" includes "other discarded material, including solid . . . material resulting from . . . commercial . . . operations"). Villarreal argues, however, that he is not violating subsections 330.7(a) and 330.15(c) because he "would set aside all inert materials—such as concrete, soil, dirt, clay, sand, gravel, brick, glass and rock—which he used to fill the pit located on the Property" and alleges he is "permitted to do so if his intent was to make the land suitable for the construction of surface improvements, which was Villarreal's exact intent." See id. § 330.3(145)(B) (exempting from "solid waste" "soil, dirt, rock, sand, and other natural or manmade inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements").
Assuming without deciding that Villarreal is correct, we nevertheless conclude that Villarreal's affidavit does not raise a genuine issue of material fact as to whether he violated subsections 330.7(a) and 330.15(c) and in fact establishes the opposite. See Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 835 (Tex. 2018) (per curiam) ("Rule 166a(c) plainly provides for the court to consider evidence in the record that is attached either to the motion or a response."). By transporting MSW from his demolition sites to the Site—even to "sort [the materials] for the landfill"—Villarreal is "disposing" of solid waste and MSW in violation of subsections 330.7(a) and 330.15(c). See 30 Tex. Admin. Code § 330.3(44) (defining "[d]isposal" to include "[t]he . . . dumping . . . or placing of any solid waste . . . into or on any land . . . so that such solid waste . . . may enter the environment or be emitted into the air or discharged into any waters, including groundwater"). Section 330.13 provides an exemption from requiring authorization "for the disposal of up to 2,000 pounds per year of litter or other solid waste," but that waste must be "generated by an individual on that individual's own land" and "not generated as a result of an activity related to a commercial purpose." Id. § 330.13(a)(1)-(2) (Waste Management Activities Exempt from Permitting, Registration, or Notification). The exemption therefore does not apply here, as Villarreal's affidavit establishes that the materials are taken after his commercial business—which provides demolition services—demolishes buildings at other demolition sites, not at the Site. Additionally, such activity would constitute an act of "storage" in violation of subsection 330.7(a). See id. § 330.3(150) (defining "[s]torage" as "[t]he keeping, holding, accumulating, or aggregating of solid waste for a temporary period, at the end of which the solid waste is processed, disposed, or stored elsewhere").
Moreover, Villarreal admits in his affidavit that "[w]hen the tires become too worn to use, we stack them until we have at least 350" before a recycling truck picks them up. The TCEQ rules expressly provide, "Examples of storage facilities are collection points for: . . . (iii) accumulation of used or scrap tires prior to transportation to a processing or disposal facility." 30 Tex. Admin. Code § 330.3(150)(A)(iii).
Because we conclude that the summary judgment evidence establishes as a matter of law that Villarreal violated subsections 330.7(a) and 330.15(c)—and therefore violated section 7.101 of the Texas Water Code—we need not determine whether Villarreal also violated the 2007 Order to affirm the State's motion for summary judgment. The trial court did not err in granting the State's motion on the issue of whether Villarreal violated statutory and regulatory provisions, and we overrule Villarreal's first issue.
Moreover, the State's request for injunctive relief is based on Villarreal's violation of the statutory and regulatory provisions as established by summary judgment. See Tex. Water Code § 7.034. Accordingly, the trial court did not err in granting the injunctive relief, and we overrule Villarreal's fourth issue.
Statutory Civil Penalties
We now turn to Villarreal's second issue challenging the trial court's award of $192,450 in statutory civil penalties. Section 7.102 of the Texas Water Code provides that "[a] person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit relating to any other matter within the commission's jurisdiction to enforce . . . shall be assessed for each violation a civil penalty not less than $50 nor greater than $25,000 for each day of each violation" and that "[e]ach day of a continuing violation is a separate violation." Id. § 7.102; see State v. Morello, 547 S.W.3d 881, 889 (Tex. 2018) (noting that "the statute is clear that the amount accrues daily"). For its motion for summary judgment, the State stipulated to the minimum penalty amount of $50 and that it would be limiting the time frame for which it seeks penalties from July 24, 2007, to February 5, 2018—i.e., 3,849 total days. The trial court granted summary judgment on this issue, awarding $192,450 in penalties—$50 per day for 3,849 days. Villarreal effectively argues that the State did not meet its summary judgment burden to "establish as a matter of law" that it is entitled to $192,450 in statutory civil penalties. See Tex. R. Civ. P. 166a(c). We agree.
Villarreal does not contest the $2,700 award for outstanding administrative penalties.
The State claims that the following evidence establishes a continuing violation during this ten year period: (1) its affidavit certifying that Villarreal never submitted documentation certifying the removal of MSW from the Site as required by the 2007 Order; (2) the finding of fact in the 2007 Order that Villarreal did not prevent the disposal of MSW at his Site, the volume of which "approximated the equivalent of ten, forty cubic yard containers and consists of brush, plastic sheeting, plastic piping, metal, rebar, and construction and demolition debris"; and (3) its 2008, 2012, and 2017 investigation reports with photographic documentation demonstrating a substantial increase in the volume of municipal solid waste at the Site. The State admits that it did not depict a violation for each of the 3,840 days, but it argues that "[t]he landmark case State v. City of Greenville establishes that a fact-finder can find continuous violations based on observations that occurred on some, but not all, of the days alleged in a petition." See 726 S.W.2d 162, 167 (Tex. App.—Dallas 1986, writ ref'd n.r.e.).
City of Greenville, however, concerned a jury finding, not summary judgment. Id. In City of Greenville, the jury was asked, "Find from a preponderance of the evidence the number of days, if any, on which the City of Greenville caused, suffered, allowed, or permitted waste to remain without proper final cover," and the jury responded, "1419." Id. Reviewing the jury finding for factual and legal sufficiency, the Dallas court of appeals concluded that "there is evidence of a continuing violation" during the 1,419 days. Id. First, the court noted that the State's expert testified that he inspected a city site eleven times during a 1,545-day period and concluded that after each inspection the site was not in compliance with the relevant requirements. Id. Moreover, a city employee testified that "there was no change in the site's appearance" for most of that time. Id. The court held that the jury "could conclude" from this testimony that the city was "at no time in compliance" during that time period and that "[t]he jury finding is within the limits established by the evidence; therefore, we cannot substitute our findings for those of the jury." Id.
Here, in contrast, the standard is not whether legally or factually sufficient evidence supports a jury finding, as in City of Greenville, but whether the State conclusively established that it is entitled to judgment on the continuous violation "as a matter of law" and that there is no genuine issue of material fact. See Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 512 (Tex. 2014) (noting summary judgment movant's burden is to "conclusively establish[]" its cause of action or defense (quoting Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999))). Reviewing the summary judgment evidence under this standard and in the light most favorable to the party against whom summary judgment was rendered as we are required to do, see B.C., 512 S.W.3d at 279, we cannot conclude that the State conclusively established as a matter of law that there was a continuous violation from 2007 to 2018. There was no testimony or evidence comparable to the city employee's testimony in City of Greenville as to the consistency of the Site's appearance during the time period at issue or what went on during the intervening time periods between investigations. The State has not identified—and we have not found—any authority that would support concluding that on this record these three investigations with four to five years between each investigation can conclusively establish, as a matter of law, that Villarreal was continuously violating a statute every day of the more than ten year period.
The State also argues that "Villar[r]eal has never submitted documentation certifying the removal of municipal solid waste from the Site" as required by the 2007 Order, presumably arguing that this constitutes evidence establishing that Villarreal never removed the MSW. But this fact goes to a failure to provide documentation for which the State has not sued; it does not establish that Villarreal never removed the MSW. And even if the failure to provide documentation created a presumption that Villarreal did not remove the MSW, a presumption generally does not operate in summary judgment proceedings to establish a fact. See Chavez v. Kansas City S. Ry., 520 S.W.3d 898, 899 (Tex. 2017) (per curiam) (citing Missouri-Kansas-Texas R.R. v. City of Dallas, 623 S.W.2d 296, 297-98 (Tex. 1981)).
Moreover, even if we were to conclude that the three investigations conducted over ten years conclusively established the existence of materials generally considered to be solid waste inside the Site pit, Villarreal has raised a genuine issue of material fact as to whether those materials would be exempted from the regulatory definition of "solid waste." Villarreal testified by affidavit that "[i]n the pit area, we store concrete, brick, asphalt, rebar, brush, soil, dirt, clay, sand, and gravel," and his daughter averred that "[w]e are currently filling the pit with inert material such as concrete, rock, dirt, and bricks so that we can build an office on the pit and use it as an automobile junkyard." See 30 Tex. Admin. Code § 330.3(145)(B) (exempting from "solid waste" "soil, dirt, rock, sand, and other natural or manmade inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements"). The State argues that Villarreal "does not provide any documents, such as building plans or progress made in the past decade," to support his daughter's statement that they plan to construct improvements upon the pit. But at this stage of the proceedings, Villarreal does not need to prove his position, he only needs to raise a "genuine issue as to any material fact." See Tex. R. Civ. P. 166a(c).
The State also argues that Villarreal "admits to having at least 350 tires on Site at any given time." But the 2007 Order did not identify any tires on the Site; the first mention of tires is in the 2008 report. Nor does Villarreal admit to having tires on the Site immediately after the recycling truck picks up the 350 tires. Thus, the evidence of tires on the Site does not conclusively establish a continuing violation for the entire time period at issue.
The State also challenges the affidavits, arguing that "[b]oth Villar[r]eal and his daughter's affidavits are self-serving and call into question the credibility of the statements." But "[i]f the credibility of the affiant or deponent is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate." Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). And "while the rules governing summary judgment require that testimonial evidence of an interested witness be 'clear, positive and direct, otherwise credible and free from contradictions and inconsistencies' in order for a summary judgment to be based on such evidence, 'there is no such strict requirement for testimonial evidence used to defeat summary judgment.'" Ortega v. Pean, No. 01-18-00249-CV, 2019 WL 1560859, at *8 (Tex. App.—Houston [1st Dist.] Apr. 11, 2019, no pet.) (mem. op.) (quoting Kirkwood v. Jefferson County, No. 09-16-00337-CV, 2017 WL 4319771, at *2 (Tex. App.—Beaumont Sept. 28, 2017, no pet.) (mem. op.)); see Tex. R. Civ. P. 166a(c) ("A summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted."); Brooks v. Excellence Mortg., Ltd., 486 S.W.3d 29, 39 (Tex. App.—San Antonio 2015, pet. denied) ("Although Appellants are interested witnesses, their affidavits—when examined to determine whether they raise a fact issue sufficient to defeat Appellees' traditional motion—are not required to be 'clear, positive and direct, otherwise credible and free from contradictions and inconsistencies.'"); De La Morena v. Ingenieria E Maquinaria De Guadalupe, S.A., 56 S.W.3d 652, 658 (Tex. App.—Waco 2001, no pet.) ("By its express language, the [interested-witness] part of Rule 166a(c) relied on by [movant] does not apply to a non-movant's affidavit. That part specifically refers to the evidence on which a summary judgment 'may be based.'" (quoting Tex. R. Civ. P. 166a(c))). The State has not controverted Villarreal's evidence and conclusively established either that Villarreal does not intend "to make the land suitable for the construction of surface improvements" or that the pit was filled with solid materials that were not inert. See 30 Tex. Admin. Code § 330.3(145)(B).
Finally, Villarreal testified that he brings the items he cannot keep to the landfill. As already noted, there may have been solid waste and MSW on the Site at least on the three days on which the investigations were conducted of the 3,849 day time period—and likely more than just three days, given Villarreal's admission regarding his sorting practices following demolitions. Nevertheless, we indulge the reasonable inference from Villarreal's testimony that there may have been at least some of the 3,849 days where he would have brought the solid waste and MSW from the Site to the landfill, and a genuine issue of material fact therefore exists as to whether any solid waste and MSW was on the Site on all of those days.
Although Villarreal identified landfill receipts as an exhibit to his response, the exhibit is missing from the appellate record. Nevertheless, Villarreal testified in his affidavit, "Once the items are separated, we bring the items which we cannot keep to the landfill."
Taking as true all evidence favorable to Villarreal and indulging every reasonable inference and resolving any doubts in his favor, see KMS Retail Rowlett, 593 S.W.3d at 181, we conclude that genuine issues of material fact exist as to the civil penalty amount. At this summary judgment stage and in contrast to the parties' burdens at trial, compare Tex. R. Civ. P. 166a(c) (describing summary judgment burden), with City of Greenville, 726 S.W.2d at 167 (holding that jury "could conclude" from testimony that continuous violation existed), the State has not met its burden to conclusively establish as a matter of law that it was entitled to $192,450 in civil penalties based on a continuous violation for 3,849 days. The State did remove the material fact issue as to the per diem amount of penalty by stipulating to the minimum per diem amount. But the State's summary judgment evidence—namely, the findings of the 2007 Order and the evidence included in the 2008, 2012, and 2017 investigation reports—did not establish as a matter of law that there was a continuous violation for 3,849 days when Villarreal's summary judgment evidence created a reasonable inference that there was a genuine issue of material fact as to whether there was any solid waste and MSW on the Site for at least some of the 3,849 days. We therefore sustain Villarreal's second issue, reverse the summary judgment order as to the award of $192,450 in statutory civil penalties, and remand the issue of the amount of statutory civil penalties for further proceedings.
Additionally, although the State is entitled to an award of attorney's fees as a prevailing party, see Tex. Water Code § 7.108 (providing that if State "prevails in a suit under this subchapter it may recover reasonable attorney's fees, court costs, and reasonable investigative costs incurred in relation to the proceeding"); Black's Law Dictionary (11th ed. 2019) (defining "prevailing party" as "[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded"), the total amount and reasonableness of attorney's fees remain at issue here because we have reversed and remanded for further proceedings as to the penalty amount, see Young v. Qualls, 223 S.W.3d 312, 314 (Tex. 2007) (per curiam) (holding that when damages are reduced, trial court's determination of attorney's fees should be retried because factors governing assessment of "reasonableness" include consideration of "results obtained" (quoting Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997))). We therefore sustain Villarreal's third issue, reverse the award of attorney's fees, and remand for reconsideration.
CONCLUSION
For these reasons, we affirm the summary judgment order as to its conclusion that Villarreal violated the relevant Texas laws regarding solid waste and MSW and its grant of injunctive relief. But we reverse the order as to the award of statutory civil penalties and attorney's fees and remand the cause for further proceedings consistent with this opinion.
/s/_________
Melissa Goodwin, Justice Before Justices Goodwin, Baker, and Kelly Affirmed in Part; Reversed and Remanded in Part Filed: November 10, 2020