R.R. Street & Co. v. Pilgrim Enterprises, 01-98-01429-CV.
| Decision Date | 31 August 2001 |
| Docket Number | No. 01-98-01429-CV.,01-98-01429-CV. |
| Citation | 81 S.W.3d 276 |
| Parties | R.R. STREET & CO., INC., Appellant, v. PILGRIM ENTERPRISES, INC.; Pilgrim Convenience, Inc.; R & G No. 1, Inc.; R & G No. 2, Inc.; R & G No. 3, Inc.; Pilgrim Laundry Company, Inc.; Pilgrim Equipment Co., Inc.; R.F.S., Inc. No. 8; R.F.S., Inc. No. 11; R.F.S., Inc. No. 17; S & R No. 2, Ltd.; PLC No. 11 Joint Venture; Isabella Enterprises, Inc. Liquidating Trust d/b/a Pilgrim Enterprises; Isabella Convenience, Inc. Liquidating Trust d/b/a Pilgrim Convenience Pilgrim Enterprises, Inc.; Jack J. Turk; Turk Investments, Ltd., L.L.P.; Robert Turk as Trustee to the Jerald Scott Turk 1990 Heritage Trust; Marilyn Altman Rose; Jayne Terri Paul; Cyndi Altman; and Craig Altman, Appellees. Pilgrim Enterprises, Inc.; Pilgrim Convenience, Inc.; R & G No. 1, Inc.; R & G No. 2, Inc.; R & G No. 3, Inc.; Pilgrim Laundry Company, Inc.; Pilgrim Equipment Co., Inc.; R.F.S., Inc. No. 8; R.F.S., Inc. No. 11; R.F.S., Inc. No. 17; S & R No. 2, Ltd.; PLC No. 11 Joint Venture; Isabella Enterprises, Inc. Liquidating Trust d/b/a Pilgrim Enterprises; Isabella Convenience, Inc. Liquidating Trust d/b/a Pilgrim Convenience Pilgrim Enterprises, Inc.; Jack J. Turk; Turk Investments, Ltd., L.L.P.; Robert Turk as Trustee to the Jerald Scott Turk 1990 Heritage Trust; Marilyn Altman Rose; Jayne Terri Paul; Cyndi Altman; and Craig Altman, Appellants, v. R.R. Street & Co., Inc., Appellee. |
| Court | Texas Court of Appeals |
Taylor M. Hicks, Houston, Michael A. Hatchell, Tyler, for Appellant.
Michael A. Pohl, Law Offices of Michael Pohl, Houston, Alice Oliver-Parrott, Burrow & Parrott, L.L.P.,Maria Teresa Arguindegui, Jean C. Frizzell, Houston, for Appellee.
David Kent Mestemaker, Bellaire, for Intervenor.
Jeff Nobles, N. Terry Adams, Jr., Beirne, Maynard & Parsons L.L.P., Houston, for Cross-Appellants.
Panel consists of Justices MIRABAL, NUCHIA, and PRICE.*
This appeal arises from a suit brought by Pilgrim Enterprises, Inc., and related entities1 (collectively "Pilgrim"), and Jack Turk, and related entities and individuals (collectively "Turk"),2 against R.R. Street & Co., Inc. (Street) to recover environmental cleanup costs and other damages incurred by Pilgrim and Turk at their respective dry-cleaning plants.
Street appeals the trial court's judgment awarding Pilgrim $1.5 million under the Texas Solid Waste Disposal Act (SWDA).3 In two issues, Street contends that (1) Street is not a "responsible party" as defined by SWDA, and (2) the trial court erred in denying Street a jury trial on Pilgrim's SWDA claim. Further, Pilgrim and Turk appeal, contending the jury's failure to find Street liable under various common law theories was against the great weight and preponderance of the evidence. Pilgrim also contends the trial court erred in granting Street's motion for directed verdict on Pilgrim's breach of fiduciary duty claim. For the reasons set forth below, we affirm in part, and we reverse and remand in part.
The Robertson family bought Pilgrim Laundry & Cleaners in 1945 and operated dry-cleaning plants in Harris and Bexar Counties until Pilgrim sold its assets in 1995. At its peak, Pilgrim had 20 dry-cleaning plants. In 1994, an environmental assessment, required as part of Pilgrim's asset sale, revealed that its dry-cleaning plants were contaminated with the dry-cleaning solvent perchloroethylene (PCE). Pilgrim notified the Texas Natural Resource and Conservation Commission (TNRCC) of the contamination and agreed to voluntarily remediate the sites.
Street, a supplier of dry-cleaning products and services, began its business relationship with Pilgrim in the 1950's. Over the years, Street supplied PCE to Pilgrim and, beginning in the 1970's, sold dry-cleaning equipment to Pilgrim.
Harold Corbin, a Street service technician, serviced the Pilgrim account from 1958 until July 1997. During this time, Corbin developed a close relationship with Pilgrim and the Robertson family. Corbin visited Pilgrim's plants regularly and had complete access to its facilities. Pilgrim relied on Corbin to give advice on dry-cleaning operations, to check and service equipment, and, in later years, to complete written evaluations of Pilgrim's operations.
Because of its high cost, Pilgrim, like other dry-cleaners, recycled PCE for reuse. Street manufactured stills and filter units, which cleaned the used PCE. As a result of this cleaning process, certain waste materials were produced. The used filter cartridges had to be replaced about once a month and discarded. The dirty PCE was boiled in the stills, producing a still residue containing PCE, which also had to be discarded.
Until the mid-1980's, it was common practice for dry-cleaners to discard the still residues and spent filter cartridges in the trash. In 1986, the federal government began requiring dry-cleaners to dispose of these wastes at waste disposal facilities. Before the change in the regulations, Pilgrim threw these wastes in the trash like other dry-cleaners. In 1985, Pilgrim hired a waste disposal company, recommended by Street, to properly dispose of the wastes.
Another waste produced as a result of the recycling process is "separator water." Each still manufactured by Street contained a water separator that removed water from the used PCE. Separator water was also generated at other stages of the dry-cleaning and recycling processes.
Because PCE is water-soluble, separator water contains trace amounts of PCE, even after separation. Consistent with advice received from Street, Pilgrim discharged the separator water into buckets and then poured it into the public sewer system without further treatment. In 1995, Pilgrim began using an evaporation system to reclaim the soluble PCE from the separator water before disposing of it.
In November 1995, Pilgrim filed suit against Street and numerous other PCE and equipment manufacturers and distributors to recover the cost of the environmental cleanup at 16 Pilgrim plants (11 in Houston and 5 in San Antonio) contaminated with PCE. Pilgrim asserted causes of action based on negligence, products liability, fraud, breach of fiduciary duty, and the Deceptive Trade Practices Act (DTPA). Pilgrim also brought a cost recovery action under SWDA requesting the trial court to apportion its environmental cleanup costs against the defendants. At trial, Pilgrim presented evidence that the cost of the remediation for the sites would be $7,094,940. All defendants but Street settled with Pilgrim before the case went to the jury.
Turk, the property owner of three other Pilgrim sites located at 7901 Hillcroft, 9535 Westheimer, and 7430 Long Point in Houston, intervened into the suit and asserted claims against Pilgrim and the other defendants. Pilgrim settled with Turk prior to trial and the two were aligned against Street during trial. Turk asserted common law claims for nuisance, design defect, marketing defect, negligence, and gross negligence against Street, but did not assert a SWDA claim. At trial, Turk presented evidence that it would cost $3.9 million to remediate its three properties.
During trial, the trial court sanctioned Street by striking all of its affirmative defenses because of discovery abuse.4 At the close of Pilgrim's evidence, the trial court granted a directed verdict against Pilgrim on its breach of fiduciary duty claim against Street. At the end of the nine-week trial, the jury found no liability as to Street with regard to Pilgrim's and Turk's common law claims and Pilgrim's DTPA claim. The trial court determined that Pilgrim's SWDA claim should be decided by the court, not the jury. The trial court awarded Pilgrim $1.5 million under SWDA and entered findings of fact and conclusions of law on that issue.
A. STREET'S APPEAL
In its first issue, Street contends that it was denied its constitutional right to a jury trial when the trial court refused to submit Pilgrim's SWDA claim to the jury. In its second issue, Street argues that it is not liable under SWDA, as a matter of law, because it is not a "responsible person" under the act. Because Street's issues are interrelated, we will consider them together.
Pilgrim brought a cost recovery action against Street seeking its environmental cleanup costs under SWDA section 361.344.5 See TEX. HEALTH & SAFETY CODE ANN. §§ 361.271(a)(3), 361.344 (Vernon 2001). Pilgrim alleges that Street is liable under SWDA, as a matter of law, because it arranged for the disposal of solid waste at Pilgrim's facilities. See TEX. HEALTH & SAFETY CODE ANN. §§ 361.271(a)(3), 361.344. Pilgrim further contends that Street was not entitled to a jury trial on its SWDA claim because whether Pilgrim was entitled to recover its environmental cleanup costs under SWDA was a question of law for the court to decide. The trial court agreed with Pilgrim.
Because SWDA enables Pilgrim to recover an equitable share of its costs of remediation, Pilgrim's cost recovery action is a statutory contribution claim. See Compton v. Texaco, Inc., 42 S.W.3d 354, 362 (Tex.App. — Houston [14th Dist.] 2001, pet. denied) (); see also TEX. JUR. 3d Contribution and Indemnification § 3 (1997) (). The right to contribution is based in equity. U.S. Fid. & Guar. Co. v. Century Indem. Co., 78 S.W.2d 737, 738 (Tex.Civ.App. — El Paso 1935, writ dismissed); Brown &...
To continue reading
Request your trial
-
Vine Street v. Keeling ex rel. Estate of Keeling
...advised Pilgrim to discard PERC-contaminated wastewater into the sewer. Id. at 236-37; R.R. St. & Co. v. Pilgrim Enters., Inc., 81 S.W.3d 276, 289 (Tex.App.-Houston [1st Dist.] 2001) ("RR. Street I"), rev'd on other grounds, 166 S.W.3d at In determining the arranger liability, the court not......
-
Allen v. Devon Energy Holdings, L.L.C.
...dominance is a reason that courts recognize informal fiduciary relationships. See generally R.R. St. & Co., Inc. v. Pilgrim Enters., Inc., 81 S.W.3d 276, 306 (Tex.App.-Houston [1st Dist.] 2001), rev'd in part,166 S.W.3d 232 (Tex.2005); see also Assoc. Indem. Corp. v. CAT Contracting, Inc., ......
-
R.R. Street & Co. v. Pilgrim Enterprises
...it is not before us. With regard to the SWDA portion of the judgment, the court of appeals is affirmed in part and reversed in part. 81 S.W.3d 276, 306. The court of appeals held that, while Street was entitled to have a jury resolve fact issues relating to Pilgrim's SWDA claim, id. at 287-......
-
Aviall Services, Inc. v. COOPER INDUSTRIES, LLC
...The SWDA, like CERCLA, is accordingly remedial. See R.R. Street II, 166 S.W.3d at 238;8 see also R.R. Street & Co. v. Pilgrim Enters., Inc., 81 S.W.3d 276, 291 (Tex.App.2001) ("R.R. Street I") ("Because it is a remedial statute, we must give SWDA a liberal construction, rather than one that......
-
Case summaries.
...(2004). (42) Berg v. Popham (Berg I), 113 P.3d 604, 609 (Alaska 2005). (43) Id. (44) R.R. Street & Co. v. Pilgrim Enterprises, Inc., 81 S.W.3d 276, 295 (Tex. Ct. App. (45) Berg I, 113 P.3d at 610. (46) Id. at 612. (47) Id. at 620. (48) Berg I, 113 P.3d 604, 612 (Alaska 2005). (49) This ......