Markwardt v. Tex. Indus. Inc.

• Decision Date: 23 November 2010
• Docket Number: No. 14-09-00335-CV.,14-09-00335-CV.
• Parties: Debra MARKWARDT, Appellant, v. TEXAS INDUSTRIES, INC., Appellee.
• Court: Texas Court of Appeals

325 S.W.3d 876

Debra MARKWARDT, Appellant,

v.TEXAS INDUSTRIES, INC., Appellee.

No. 14-09-00335-CV.

Court of Appeals of Texas,Houston (14th Dist.).

Nov. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Eric D. Pearson, Michael E. Heygood, Dallas, for appellant.

Brett Dosher Lamb, Dallas, Stacy R. Obenhaus, Houston, for appellee.

Panel consists of Justices YATES, SEYMORE, and BROWN.

OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Debra Markwardt, appeals a summary judgment in favor of appellee, Texas Industries, Inc. (“TXI”), in Markwardt's suit for trespass, nuisance, negligence, and gross negligence, alleging damages arising out of emissions from TXI's cement plant located near Markwardt's property. In ten issues, Markwardt contends the trial court erred by granting summary judgment on the ground that her claims are barred by the statute of limitations. We affirm.

I. Background

Since 1988, Markwardt has owned property in Midlothian, Texas, on which she resides and raises dogs for sale. For decades, TXI has operated a cement plant within a mile of Markwardt's property. Markwardt contends TXI began burning hazardous waste as fuel in 1987 or 1988 and emissions from this activity contained toxic substances. Markwardt alleges that accumulation of such substances over the years has contaminated her soil, air, and groundwater, caused her health problems, including chronic bronchitis, lung problems, fatigue, headaches, ulcers, and nausea, and adversely affected the health of her dogs.

On March 12, 2008, Markwardt sued TXI for trespass, temporary nuisance, negligence, and gross negligence. She seeks compensation for lost use and enjoyment of her land, contamination of the property, damages to her health and well-being, physical pain and mental anguish, damages to the health and well-being of her dogs, and lost profits in her dog-breeding business. TXI filed a traditional motion for summary judgment on the ground that Markwardt's claims are barred by the statute of limitations. In her live petition and summary-judgment response, Markwardt raised several grounds for avoiding the limitations bar, including the discovery rule, a CERCLA provision, the continuing-tort doctrine, and fraudulent concealment. ¹ The trial court signed an order granting TXI's motion for summary judgment and dismissing Markwardt's claims with prejudice. On March 31, 2009, the trial court signed a judgment nunc pro tunc, correcting a clerical error in the original judgment.

II. Standard of Review

A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). A defendant moving for summary judgment must conclusively negate at least one element of the plaintiff's theory of recovery or plead and conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). If the defendant establishes its right to summary judgment, the burden shifts to the plaintiff to raise a genuine issue of material fact. Id. We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id. ²

III. Analysis

In ten issues, Markwardt contends the trial court erred by granting summary judgment on the limitations ground. Markwardt's alleged damages essentially fall into three categories: (1) typical nuisance damages such as lost use and enjoyment of her land; see Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex.2004) (defining “nuisance” as “a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities”); (2) damage to both real property and personal property-her dogs; and (3) Markwardt's own personal injuries. However, it is unclear to which pleaded claim-nuisance, trespass, negligence, or gross negligence-Markwardt attributes each element of damages or whether she seeks multiple elements of damages for each claim. Nonetheless, all her claims are governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (West Supp.2009); Bates, 147 S.W.3d at 270; W.W. Laubach Trust v. Georgetown Corp., 80 S.W.3d 149, 158-59 (Tex.App.-Austin 2002, pet. denied); Am. Centennial Ins. Co. v. Canal Ins. Co., 810 S.W.2d 246, 255 (Tex.App.-Houston [1st Dist.] 1991), aff'd in part, rev'd in part on other grounds, 843 S.W.2d 480 (Tex.1992). ³ The overarching issue is determining when Markwardt's claims accrued. As a general rule, “a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). The discovery rule, when applicable, defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). Another limitations principle applicable in this case is that accrual of a nuisance claim depends on whether the nuisance is permanent or temporary. Bates, 147 S.W.3d at 270. A permanent-nuisance claim accrues when injury first occurs or is discovered, whereas a temporary-nuisance claim accrues anew upon each injury. Id. Thus, if a nuisance is temporary, claims for injuries occurring within two years of suit are timely. See id. Determining when a cause of action accrued is a question of law. See id. at 270, 274-75.

A defendant seeking summary judgment based on limitations must (1) conclusively prove when the cause of action accrued and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving, as a matter of law, there is no genuine issue of fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of her injury. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that limitations bars the action, the nonmovant must then adduce summary-judgment proof raising a fact issue to avoid the statute of limitations. Id.

In its motion for summary judgment, TXI argued that Markwardt alleges a permanent-nuisance claim, all her claims accrued more than two years before she filed suit, and the discovery rule did not defer accrual. On appeal, Markwardt contends TXI failed to prove entitlement to summary judgment on these grounds and also relies on the continuing-tort and fraudulent-concealment doctrines to avoid limitations. Some of Markwardt's issues are interrelated. Specifically, in her first and fifth issues, Markwardt generally contends the trial court erred by granting summary judgment and concluding TXI proved the accrual date of her claims. Thus, our evaluation of these issues incorporates the analysis below of the more specific limitations issues.

A. Permanent vs. Temporary Nuisance

Preliminarily, we must address Markwardt's third issue, challenging the trial court's implicit decision that her claim is based on a permanent nuisance. Markwardt contends the nuisance was temporary; thus, claims for damages occurring within two years before filing suit were necessarily timely. In contrast, TXI contends any alleged nuisance was permanent; thus, her claim accrued when injury first occurred or at least when she discovered an injury. Markwardt's allegation that the nuisance is temporary does not preclude our evaluating the nature of her claim. A plaintiff may not elect whether to assert a temporary or permanent nuisance “because the consequences that flow from the designation as temporary or permanent are not arbitrary but follow directly from underlying facts.” Bates, 147 S.W.3d at 281. “[A]lternative allegations may be asserted when the facts are unclear. But when they are not, claimants cannot opt for an indefinite limitations period or a series of suits whenever they prefer.” Id. at 281-82.

Under Texas law, a nuisance is permanent if it “involves an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely.” Id. at 272. Thus, a nuisance is permanent if it is “constant and continuous” and if “injury constantly and regularly occurs.” Id. A temporary nuisance is of limited duration. Id. Thus, a nuisance may be considered temporary if it is uncertain whether any future injury will occur or if future injury “is liable to occur only at long intervals.” Id. A nuisance is also temporary if it is “occasional, intermittent or recurrent” or “sporadic and contingent upon some irregular force such as rain.” Id. “[A]nuisance should be deemed temporary only if it is so irregular or intermittent over the period leading up to filing and trial that future injury cannot be estimated with reasonable certainty. Conversely, a nuisance should be deemed permanent if it is sufficiently constant or regular (no matter how long between occurrences) that future impact can be reasonably evaluated.” Id. at 281.

Whether a nuisance is permanent or temporary is a question of law unless there is a dispute regarding what interference has occurred or whether it is likely to continue. See id. A permanent nuisance may be established by showing that either the plaintiff's injuries or the defendant's operations are permanent. Id. at 283 “The presumption of a connection between the two can be rebutted by evidence that a defendant's noxious operations cause injury only under circumstances so rare that, even when they occur, it remains uncertain whether or to what degree they may ever occur again.” Id.

In...