March 11, 2004.
Appeal from the 238th District Court of Midland County, Texas, (Tc# CV43861).
Jud Walton, Midland, TX, for appellant.
Hon. Rodney W. Satterwhite, Stubbeman, McRae, Sealy, Laughlin Browder, Inc., Midland, TX, for appellee.
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
Jud Walton appeals the trial court's summary judgment in favor of Mobil Oil Corporation, based upon its motion that combined no evidence grounds and its affirmative defense of limitations. Walton claims that Mobil's motion impermissibly confused the two types of summary judgment, such that he could not respond to the motion. Finding the motion was adequate, and that Walton's response did not raise genuine issues of material fact, we affirm.
Jud Walton owns a ranch located in Midland and Glasscock Counties, Texas. In the 1960's, various oil and gas producing companies operated on his land. Mobil's uncontroverted evidence establishes that no Mobil employee has been on Walton's land since 1992. In September 1987, Walton expressed concerns about his groundwater to the Texas Railroad Commission. He complained that a blow-down pit left on his land by the oil and gas producers was causing contamination. In April 1988, he again expressed to the Commission his concern that the pit had contaminated the aquifer below his ranch. He asked for further testing. In August 1988, an environmental consultant Walton had hired wrote him that it was possible some of the contents of the pit had reached the water table. In January 1989, May 1993, and September 1993, Walton again had contact with the Railroad Commission about his groundwater contamination. Walton has testified, "[t]he first notice I had that my groundwater had been contaminated was on November 18, 1994 when the [Railroad Commission] advised me that the City was the source of contamination of my groundwater."
Blowdown is the emptying or depressurizing of material into a vessel. DICTIONARY FOR THE PETROLEUM INDUSTRY, 3RD REVISED EDITION (2001).
Walton filed suit against Mobil Oil Corporation on May 18, 1998. After the trial court granted summary judgment for all defendants, including Mobil, Walton appealed to this Court. We issued an opinion in April 2000 finding (among other things) that Mobil had conclusively established its right to judgment on its limitations defense for any permanent damage to Walton's land, as by his own admission he had notice of his claim in 1994. We remanded the case against Mobil, however, on the issues of temporary damages, injunctive relief, and continuing tort. Mobil filed another motion for summary judgment following remand.
Walton, in the trial court and again here, claims that Mobil's motion cannot support summary judgment because it did not clearly delineate and separate "no evidence" claims from those for traditional summary judgment. He filed special exceptions to the motion; he filed a response to the summary judgment mirroring his special exceptions. Mobil filed a reply to Walton's response on the day of the summary judgment hearing. The trial court overruled Walton's special exceptions and granted Mobil's summary judgment on all causes of action. It set out that judgment for Mobil on the claims for permanent injunction, fraudulent concealment, nuisance, negligence and trespass was entered under the no evidence standard; for all other claims, it was entered because those actions were barred by limitations. This appeal follows.
Standards of review
In a single issue, Jud Walton urges that the trial court erred in granting summary judgment, that it erred in overruling Walton's special exceptions, and that he had a right to rely on Mobil's representations in its pleadings. In reviewing a trial court's ruling on special exceptions, we apply an abuse of discretion standard. Burgess v. El Paso Cancer Treatment Ctr., 881 S.W.2d 552, 554-55 (Tex. App.-El Paso 1994, writ denied). We will reverse only if the trial court acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner. Id.
In reviewing the trial court's grant of summary judgment under TEX. R. CIV. P. 166a(i), we consider all evidence in the light most favorable to the party against whom judgment was rendered, disregarding all contrary evidence and inferences. Ching v. Methodist Children's Hospital, 2003 WL 943740, at *4 (Tex. App.-Amarillo March 10, 2003, pet. denied). A no evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of evidence to raise a genuine issue of material fact. Id.
In reviewing the trial court's grant of a traditional summary judgment, such as one based upon the affirmative defense of limitations, we review the evidence de novo, to determine whether movant sustained its burden to show it is entitled to judgment as a matter of law or whether a material fact issue precludes summary judgment. Tierney v. UNUM Life Insur. Co. of America, 97 S.W.3d 842, 845 (Tex. App.-El Paso 2003, pet. denied). We view all evidence favorable to the non-movant as true, and indulge all reasonable inferences in favor of non-movant. Id.
Summary judgment was properly granted
Walton claims on this appeal that the trial court erred in granting Mobil's summary judgment because Mobil's motion was "so contorted and confusing that Appellant was at a loss to know how to respond," and his only viable action was to file special exceptions to have Mobil's grounds clarified for response. He did not refute Mobil's summary judgment on the merits, only on its alleged procedural inadequacies.
We therefore first decide whether Mobil's motion for summary judgment meets the requirements for a no evidence summary judgment under Tex. R. Civ. P. 166a(i), the requirements for a traditional summary judgment under TEX. R. CIV. P. 166(a), both, or neither. We conclude that, while admittedly not a model construct, it is perfectly clear what grounds the motions relies upon. Walton's arguments to the contrary are not persuasive.
It is true, as Walton points out, that Mobil's motion recites only the standard for determining 166a(i) "no evidence" motions. This, although summary judgment on the grounds of limitations, as an affirmative defense, can only succeed under a traditional summary judgment motion. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999) (a defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish that defense conclusively). As the motion was urging judgment on both no evidence and traditional standards, it should have at least mentioned the traditional standard of review, as it is quite different from that governing 166a(i) challenges. See HON. DAVID HITTNER LYNNE LIBERATO, SUMMARY JUDGMENTS IN TEXAS, 34 HOUS. L. REV. 1303, 1356 (1998). Moreover, we strongly recommend that parties clearly separate their 166a(i) claims from traditional grounds for summary judgment, either in separate motions or as distinct sections of an omnibus motion. We feel obliged to repeat the caution voiced by our sister court:
[T]he better practice is either to file two separate motions, one containing the no evidence summary judgment and one containing the ordinary summary judgment, or to file one document containing both motions but with the arguments and authorities for each clearly delineated and separate from one another. When it is not readily apparent to the trial court that summary judgment is sought under rule 166a(i), the court should presume that it is filed under the traditional summary judgment rule and analyze it according to those well-recognized standards. Michael v. Dyke, 41 S.W.3d 746, 750-51 (Tex. App.-Corpus Christi 2001, no pet.) (citations omitted).
Mobil's motion does not follow these guidelines, and thus is potentially vulnerable to Walton's complaint. Nevertheless, we cannot say upon reading Mobil's motion that there was any real danger here of confusing its various grounds. The motion clearly outlines its claims:
1. Temporary damages claims are barred by limitations.
2. Continuing tort claims are barred by limitations.
3. Permanent injunction claims fail as there is no evidence of imminent harm.
4. Fraudulent concealment claims fail as there is no evidence of concealment.
5. Negligence claims fail as there is no evidence of proximate cause. Additionally, negligence claims are barred by limitations. Separate subparagraphs deal with the no evidence and limitations arguments.
6. Nuisance and trespass claims fail as there is no evidence of damage within the limitations period.
Rather than organizing its claims by the nature of judgment sought, Mobil has sorted them by causes of action. Whether an allegation is challenged for no evidence, limitations, or both, is nevertheless amply clear. We do not find the motion contorted or confusing, as Walton claims, nor do we find it the jumble apparently confronted by the court in Michael. We cannot say that the trial court erred in overruling Walton's special exceptions. That subpart of his issue on appeal is overruled.
We therefore next turn to whether the summary judgment was correctly entered. Walton did not file any substantive response to Mobil's motion, and therefore did not meet his burden to raise a fact issue on every challenged element under 166a(i). We have found that Mobil's motion adequately set out the element in each claim it was challenging for no evidence; without any substantive response from Walton, the trial court did not err in granting summary judgment for Mobil on claims of permanent injunction (for lack of evidence of imminent harm), fraudulent concealment (for lack of evidence on concealment), and negligence (for lack of evidence on causation). TEX. R. CIV. P. 166a(i).
Next, the motion includes the affidavit of Mobil employee Charles T. Howell, establishing that Mobil had not conducted any activity on the Walton Ranch after, at the latest, 1992. Nothing refutes this, and we have held that Mobil's motion adequately set out its claim on the affirmative defense of limitations. As Walton did not file suit against Mobil until 1998, well after the two-year statute of limitations had run, we conclude that summary judgment on limitation grounds was correctly entered as to temporary damages, continuing torts, negligence and nuisance and trespass.
Even using Walton's own testimony that he had notice of his claims against Mobil only in 1994, he still did not file his suit before limitations had expired.
Finally, we note that Mobil's claim on nuisance and trespass states that "[t]here is no evidence that Mobil has performed any act of nuisance or trespass within a period not barred by the statute of limitations." This claim is so blended we cannot ascertain whether it is intended as a 166a(i) or limitations claim. As the Michael court did, then, we will assay it under well-established traditional summary judgment standards. Michael, 41 S.W.3d at 751. Again, there is nothing to refute Mobil's evidence that it ceased any kind of activity on the Walton Ranch after 1992. We find summary judgment was proper on nuisance and trespassing claims on the limitations ground.
Reliance on Mobil's pleadings
In a separate sub-issue, Walton claims that he was entitled to rely upon representations made in Mobil's pleadings. This statement is true, but we do not perceive its impact on the issues before us, nor does Walton's brief help us to do so. As we cannot discern a reason for reversing summary judgment based upon this argument, it is overruled.
For these reasons, Walton's single issue on appeal, including all subparts, is overruled. The trial court correctly entered summary judgment, and it is affirmed.