Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 12–0905

• Citation: 457 S.W.3d 414
• Decision Date: 06 February 2015
• Docket Number: No. 12–0905,12–0905
• Parties: Environmental Processing Systems, L.C., Petitioner, v. FPL Farming Ltd., Respondent
• Court: Supreme Court of Texas

457 S.W.3d 414

Environmental Processing Systems, L.C., Petitioner

v.FPL Farming Ltd., Respondent

No. 12–0905

Supreme Court of Texas.

Argued January 7, 2014

OPINION DELIVERED: February 6, 2015

Rehearing Denied May 1, 2015

Geoffrey H. Bracken, Gardere Wynne Sewell, L.L.P., Houston, Leslie Ritchie Robnett, Mark A. Mayfield, Gardere Wynne Sewell LLP, Austin, Peter Scaff, Gardere Wynne Sewell & Riggs LLP, Houston, for Amicus Curiae Association of Energy Service Companies.

Andy McSwain, Fulbright Winniford PC, Waco, for Amicus Curiae Texas Farm Bureau.

Samara L. Kline, Baker Botts L.L.P., Dallas, for Amicus Curiae Texas Oil and Gas Association.

Christina T. Wisdom, Wisdom Law PLLC, Austin, Jay Lloyd Krystinik, Bryan Cave LLP, Dallas, Robert F. Van Voorhees, Washington, DC, Thomas J. Adair, Pierce & O'Neill, LLP, Houston, for Amicus Curiae The Texas Chemical Council and The Underground Injection Technology Council.

Craig T. Enoch, Melissa Prentice Lorber, Enoch Kever PLLC, Austin, Richard G. Baker, Baker & Zbranek, P.C., Liberty, for Petitioner Environmental Processing Systems, L.C.

C.B. Stratton, Stratton Law Firm, Liberty, Christopher Jene Richart, Claudia Wilson Frost, DLA Piper LLP, Hutson Brit Smelley, Edison, McDowell & Hetherington LLP, Justin Brett Busby, Paul L. Mitchell, Andrews Kurth LLP, Houston, for Respondent FPL Farming Ltd.

Opinion

Justice Green delivered the opinion of the Court.

In this case, a landowner sued its neighbor, the operator of an adjacent wastewater disposal facility, on the theory that deep subsurface wastewater trespassed beneath the landowner's property. The jury returned a verdict in the wastewater disposal facility's favor. After a series of appeals that included an opinion and remand from this Court, the court of appeals reversed the jury's verdict. 383 S.W.3d 274, 289 (Tex.App.–Beaumont 2012). Today we hold that the jury instruction properly included lack of consent as an element of a trespass cause of action that a plaintiff must prove, and that the trial court properly denied the plaintiff's motion for directed verdict on the issue of consent. We reverse the court of appeals' judgment, reinstate the trial court's judgment that the landowner take nothing, and decline the invitation to address the remaining question presented in this appeal–namely, whether deep subsurface wastewater migration is actionable as a common law trespass in Texas.

I. Factual and Procedural Background

FPL Farming Ltd. owns land in Liberty County, Texas, which it uses primarily for rice farming. It owns all of the surface and non-mineral subsurface rights to this land. Environmental Processing Systems (EPS) leased a five-acre tract on an adjacent property, where it constructed and operated a wastewater disposal facility. EPS began operating this facility under a 1996 permit from the Texas Natural Resource Conservation Commission (TNRCC).¹ During the initial permitting process, FPL Farming's predecessor-in-title, J.M. Frost III, requested a hearing to contest EPS's permit applications. Frost later reached a settlement with EPS, forgoing his contest in exchange for $185,000. The parties reduced their agreement to a writing reflecting that the settlement was binding on all successors-in-title. EPS then drilled a well and began injecting wastewater approximately 8,000 feet below ground into the Frio rock formation.

In 1999, EPS applied to the TNRCC/TCEQ to amend its permits to increase the volume of wastewater it could inject into the Frio formation. FPL Farming, by then the surface owner of the Frost property, requested a hearing to contest the permit amendments. The administrative law judge acknowledged that wastewater would likely enter the subsurface of FPL Farming's land in the future, but found that FPL Farming did not have the right to exclude EPS from the deep subsurface because FPL Farming's right to obtain its own injection well permit would not be impaired. The TNRCC/TCEQ granted EPS's permit amendments upon the recommendation of the administrative law judge, and the district court affirmed. The court of appeals also affirmed, noting the possibility that “should the waste plume migrate to the subsurface of FPL Farming's property and cause harm, FPL Farming may seek damages from EPS.” FPL Farming, Ltd. v. Tex. Natural Res. Conservation Comm'n, No. 03–02–00477–CV, 2003 WL 247183, at *5 (Tex.App.–Austin Feb. 6, 2003, pet. denied) (mem.op.) (citation omitted).

Less than three years after the court of appeals affirmed the permit amendments, FPL Farming sued EPS and alleged that wastewater had migrated into the deep subsurface of its land, possibly contaminating the briny groundwater beneath it. FPL Farming sued for injunctive relief and damages for trespass, negligence, and unjust enrichment. At trial, the contested issues were whether EPS's injected wastewater had actually entered beneath FPL Farming's land, whether FPL Farming consented to the alleged entry (either by its own conduct or through Frost's), and the amount of damages, if any. The trial court excluded the settlement agreement between Frost and EPS. Before the jury verdict, the trial court denied FPL Farming's no-evidence motion for a directed verdict on the issue of whether EPS provided evidence that FPL Farming or Frost had consented to the subsurface entry. The jury charge included consent in the definition of trespass over FPL Farming's objection that consent should be treated as an affirmative defense:

Question 1 : Did EPS trespass on FPL [Farming's] property?

“Trespass” means an entry on the property of another without having consent of the owner . To constitute a trespass, entry upon another's property need not be in person, but may be made by causing or permitting a thing to cross the boundary of the property below the surface of the earth. Every unauthorized entry upon the property of another is a trespass, and the intent or motive prompting the trespass is immaterial.

Answer yes or no.

(emphasis added). The jury answered “No.”

Following a jury verdict for EPS on all claims and issues, the trial court entered a take-nothing judgment. The court of appeals affirmed, holding that FPL Farming could not recover in tort, as a matter of law, because the TNRCC/TCEQ had authorized EPS's underlying actions. FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 305 S.W.3d 739, 744–45 (Tex.App.–Beaumont 2009), rev'd, 351 S.W.3d 306 (Tex.2011), remanded to 383 S.W.3d 274 (Tex.App.–Beaumont 2012, pet. granted). This Court reversed, holding that a government-issued permit does not shield the permit holder from civil tort liability, but we reserved the question of whether “subsurface wastewater migration can constitute a trespass, or whether it did so in this case.” FPL Farming Ltd., 351 S.W.3d at 314–15. On remand, the court of appeals reversed the trial court's take-nothing judgment, holding that: (1) Texas recognizes a common law trespass cause of action for deep subsurface water migration; (2) consent is an affirmative defense to trespass, on which EPS bore the burden of proof, and therefore the jury charge was improper; (3) FPL Farming was not entitled to a directed verdict because there was some evidence that it (or Frost) impliedly consented to the subsurface entry; and (4) the trial court erroneously excluded the settlement agreement between EPS and Frost from evidence. 383 S.W.3d at 282, 284–85, 288–89.

Both parties petitioned this Court for review. EPS challenges the court of appeals' decision recognizing a trespass cause of action under these circumstances and holding that consent is an affirmative defense. FPL Farming challenges the court of appeals' decision affirming the denial of its motion for directed verdict and reversing the settlement agreement's exclusion. We granted both petitions for review. 57 Tex. Sup. Ct. J. 53 (Nov. 22, 2013).

II. Consent in Trespass Causes of Action

We first consider whether lack of consent is an element of the trespass cause of action (on which the plaintiff bears the burden) or whether consent is an affirmative defense (on which the defendant bears the burden). If lack of consent is an element of a trespass cause of action as the jury charge instructed here, then we need not address whether Texas law recognizes a trespass cause of action for deep subsurface wastewater migration because the jury found in EPS's favor on all of FPL Farming's claims and any error would be harmless. See Tex. R. App. P. 61.1(a) ; see also Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 486 (Tex.2014) (declining to address a question related to a trespass allegation because “even if the submission of the trespass cause of action was error, it was harmless”).

We have not squarely addressed the question of which party bears the burden of proving consent in a trespass action, nor have the courts of appeals answered it uniformly.² We recently observed that “we have rarely addressed trespass damages in detail,” Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 920 (Tex.2013), so it is unsurprising that we have also not addressed which party bears the burden to prove consent in a trespass lawsuit.³ Although important trespass issues have not frequently drawn this Court's attention, our historical precedent guides the present inquiry.

Examining our historical treatment of trespass is important because we adhere to prior decisions that have established rules relating to property rights unless, or until, the Legislature modifies those rules. See Friendswood Dev. Co. v. Smith–Sw. Indus., Inc., 576 S.W.2d 21, 29 (Tex.1978) (stating that “[t]he doctrine of stare decisis has been and should be strictly followed by this Court in cases involving established rules of property rights,” but giving effect to subsequent changes in legislative policy); see also Southland Royalty Co. v. Humble Oil & Ref. Co., 151 Tex. 324, 249 S.W.2d 914, 916 (1952) (stating that when this Court reviews property rights, previously established rules ...