Cain v. Rust Indus. Cleaning Services, Inc.

• Citation: 969 S.W.2d 464
• Decision Date: 16 June 1998
• Docket Number: No. 06-97-00100-CV,06-97-00100-CV
• Parties: H. Lee CAIN and Wife, Betty Jane Cain, Furniture Crafters, Inc., and Summit Furniture Industries, Inc. (Formerly Wood Designs, Inc.), Appellants, v. RUST INDUSTRIAL CLEANING SERVICES, INC. as Successor In Interest to Enclean Environmental Services Group, Inc., Successor In Interest of Sizemore Environmental Group, Inc., Appellees.
• Court: Court of Appeals of Texas

Page 464

969 S.W.2d 464

H. Lee CAIN and Wife, Betty Jane Cain, Furniture Crafters Inc., and Summit Furniture Industries, Inc (Formerly Wood Designs, Inc.), Appellants, v. RUST INDUSTRIAL CLEANING SERVICES, INC. as Successor In Interest to Enclean Environmental Services Group Inc., Successor In Interest of Sizemore Environmental Group, Inc., Appellees.

No. 06-97-00100-CV.

Court of Appeals of Texas Texarkana.

Submitted April 1, 1998.

Decided May 1, 1998.

Rehearing Overruled June 16, 1998.

Channy F. Wood, Garner & Stein, Amarillo, for appellants.

Robert L. Scott, Greenville, James A. Hourihan, Hogan & Hartson, L.L.P., Washington, DC, Jeffrey S. George, Hogan & Hartson, Colorado Springs, CO, John P. Kincade, Winstead, Sechrest, Minick, Dallas, for appellees.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

GRANT, Justice.

H. Lee Cain and Betty Jane Cain, Furniture Crafters, Inc., and Summit Furniture Industries, Inc. (formerly Wood Designs, Inc.), collectively referred to as "Cain," appeal from a summary judgment rendered in favor of Rust Industrial Cleaning Services, Inc., as successor in interest to Enclean Environmental Services Group, Inc., successor in interest of Sizemore Environmental Group, Inc., collectively referred to as "Enclean."

The issues raised on appeal are whether the trial court erred by failing to grant Cain's objections to summary judgment affidavits and whether the trial court then erred by granting Enclean's motion for summary judgment.

Cain contends that there are factual questions that must be answered by a jury and summary judgment is thus improper. Cain, as owner of a furniture manufacturing company, owns land contaminated with arsenic at a level much higher than permitted by state regulation. Adjoining property owned by a railroad was similarly contaminated. The contamination was caused by a previous owner of Cain's property. That owner, Hi-Yield, had manufactured or refined a number of chemicals, including arsenic, at that location for decades, leaving a substantial amount of arsenic in the soil. The railroad hired Enclean to do an environmental remediation of the property ¹ by removing soil and adding a chemical (ferrous sulfate) to alleviate the contamination. Cain contends that Enclean performed took these actions negligently and that their negligent performance allowed additional arsenic-laden soil to wash over his property, causing him extensive damages when he was required to close his business and abandon the manufacturing facility.

Cain brought causes of action including negligence, trespass, and nuisance. He contends on appeal that Enclean failed to conclusively establish the failure of these causes of action because there are factual issues remaining to be resolved about Enclean's activities and their impact upon his property.

Cain first contends that the affidavits of Davis L. Ford and Randy Tarpley were improperly considered by the trial court in rendering its judgment and that the court erred by failing to grant his objections to those affidavits. Evidence that has been objected to remains part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record. Eads v. American Bank, NA, 843 S.W.2d 208, 211 (Tex.App.--Waco 1992, no writ). ² A summary judgment motion is to be decided on the written record. See Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). If rulings on objections are not reduced to written form, there can be no written record to review. Washington v. McMillan, 898 S.W.2d 392, 397(Tex.App.--San Antonio 1995, no writ).

In the present case, there was no written ruling on the objection raised by counsel. Further, the reporter's record of the summary judgment hearing shows only that the court intended to rule at a later date, but does not contain a specific ruling on the objection. The complaint of error regarding their objection therefore fails, and we must review the summary judgment in light of all of the summary judgment evidence, including the affidavits at issue.

Counsel contends that because his contention is one of substance rather than one of form, then the above-cited cases do not apply, and he did not need to raise the issue at the summary judgment hearing or obtain a ruling before bringing the issue on appeal. Despite the apparently clear-cut language used in the cases cited above, there is also a line of cases that equally clearly says that no objection need be raised to a substantive defect in summary judgment evidence, and that error may be claimed to such substantive defects for the first time on appeal. ³ As interpreted by those cases, TEX.R. CIV. P. 166a(f) provides that where a substantive defect exists, then TEX.R.APP. P. 33.1 is abrogated sub silentio, and counsel need not make a timely objection to preserve error for review.

We find this reasoning unpersuasive. The conceptual underpinning for this line of cases is that a document does not constitute evidence, typically because the document is not really an affidavit due to the omission of a signature ⁴ or lack of a jurat. ⁵ Thus, the courts in these cases found that it was error to grant a summary judgment based on such fundamentally defective instruments. ⁶ Sturm Jewelry, Inc. v. First Nat. Bank, Franklin, 593 S.W.2d 813, 814 (Tex.Civ.App.--Waco 1980, no writ). This, however, is the type of form error to which the rule requires an objection with an opportunity to correct.

Counsel complains that Ford's affidavit was improper because it did not list Ford's qualifications as an expert and, therefore, that his conclusions that Enclean was not negligent were without foundation and were mere conclusions. A mere legal conclusion does not constitute summary judgment evidence and has been treated by the appellate courts as a substantive error not requiring objection. ⁷

In the present case, the expert's affidavit contains a summary of his experience working as an environmental engineer for over thirty years with hazardous waste sites, and his educational background with a master's and doctoral degree in environmental health engineering. He then specified an extensive list of documents that he reviewed in his examination, including the plan approved by the Texas Water Commission and the Commission's subsequent approval and closure of the site. Based upon his review, he concluded that Enclean acted in accordance with the State-approved plan for remediation and that there was nothing to indicate that any act by Enclean contaminated any adjacent properties.

As an expert in the field, he would have the ability to determine whether the remediation company complied with the proper standard of care. Indeed, an expert is required in a case involving the application of a specialized branch of science, such as this one, in order to provide an opinion about whether appropriate procedures were used by the remediator. See E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 559-60 (Tex.1995).

This affidavit sufficiently sets out the expert's qualifications, the relevant facts, and his conclusions based upon those facts. It is competent summary judgment proof.

Counsel also argues that Tarpley's affidavit (which set out his opinion of the value of the real property) is insufficient because he did not show how he came to have such knowledge of the property or of the manufacturing operation. Counsel has not directed this court to authority requiring Tarpley not only to state that he has such personal knowledge about the realty, but also to explain how he obtained the personal knowledge about the property. Further, the profits obtained from the manufacturing operation are not mentioned in his affidavit, and Cain's complaint on that basis is irrelevant.

In reviewing a summary judgment granted in favor of a defendant, ⁸ we look to see whether the movant has established that he is entitled to summary judgment as a matter of law. ⁹ Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. ¹⁰

The underlying groundwork for this case is as follows.

Cain's property was heavily contaminated with arsenic because it had previously been used by a chemical company to manufacture arsenic acid. Complaints of contamination began in the 1960s. Cain leased the property initially in 1975 (later purchasing it) and knew by 1983 that extremely high levels of arsenic existed on the west side of the property. (Cain was involved in extended litigation with the previous owner, the Hi-Yield Corporation, over this very subject).

The adjoining property, owned by a railroad, was similarly contaminated. In accordance with the directives of the Texas Water Commission, the railroad retained Enclean to clean up the property. (Cain was apparently similarly ordered to clean up his own property, but refused to do so).

The elements of the common-law doctrine of negligence are well established. They are: 1) a legal duty owed by one person to another; 2) a breach of that duty; 3) that the breach was a proximate cause of the injury; and 4) actual injury. Alm v. Aluminum Co. of America, 717 S.W.2d 588, 595 (Tex.1986); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) (restated as three elements).

Cain brought suit based upon his assertion that Enclean dug up arsenic-laden soil and that a heavy rainstorm in late October 1991 washed the arsenic-laden soil onto his property. ¹¹ He argues that the digging was done negligently because Enclean did not set up barriers of some sort to keep the newly exposed soil from washing across his property. The remediation of the property was partially accomplished through removal of the contaminated dirt and partially through the mixing of ferrous sulfate with the remaining soil and...