Sewell v. Phillips Petroleum Co.

Decision Date12 April 2002
Docket NumberNo. 01-1062.,01-1062.
Citation197 F.Supp.2d 1160
PartiesMichelle SEWELL, Jean Edith Sewell, Linda Claire Sewell Chatton & Arthur William Sewell ("the Sewells") Plaintiffs v. PHILLIPS PETROLEUM CO., KerrMcGee Oil & Gas Corp., BP Amoco p.l.c., Texaco Inc., BHP Petroleum (Americas), Inc. Defendants
CourtU.S. District Court — Western District of Arkansas

Samuel E. Ledbetter, McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., Little Rock, AR, Gene A. Ludwig, Ludwig Law Firm, Little Rock, AR, J. Bruce McMath, McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., Little Rock, AR, for plaintiff.

Steven J. Adams, J. Randall Miller, R. Todd Waddell, Gardere Wynne Sewell LLP, Tulsa, OK, Robert C. Compton, Compton, Prewett, Thomas & Hickey, El Dorado, AR, Ann P. Faitz, Chisenhall, Nestrud & Julian, Little Rock, AR, Charles R. Nestrud, Chisenhall, Nestrud & Julian, Little Rock, AR, Christopher O. Parker, Eichenbaum, Liles & Heister, P.A., Little Rock, AR, G. Alan Perkins, Hill, Gilstrap, Perkins & Warner, P.C., Little Rock, AR, Brian H. Ratcliff, Shackleford, Phillips, Wineland & Ratcliff, P.A., El Dorado, AR, Jeffery P. Reynolds, Jackson, MS, for defendants.

Michael Bonds, Arkansas Department of Environmental Quality, Little Rock, for movant.


BARNES, District Judge.

Now, on this 12th day of April, 2002, COMES ON FOR CONSIDERATION two motions in the above captioned matter: a Motion for Summary Judgment (doc. 56) by separate Defendant, Texaco Inc. ("Texaco"), and a Motion for Renewal of Texaco Inc.'s Statement of Undisputed Facts, Motion for Summary Judgment and Brief in Support of Motion for Summary Judgment ("Renewal Motion")(doc. 66). The Court has reviewed these Motions along with the Sewells' Response (doc. 70), Texaco's Reply (doc. 74), and all other supporting documentation. The Court, being well and sufficiently advised, finds the issue is ripe and the Court is ready to rule.

The Sewells filed a Second Amended and Substituted Complaint (doc. 61) on November 8, 2001, five days after Texaco submitted this instant Motion for Summary Judgment based on the First Amended and Substituted Complaint (doc. 30). Texaco requests in its Renewal Motion (doc. 66) that the Court consider this Motion for Summary Judgment, Brief in Support and Statement of Undisputed Facts to be submitted against the Sewells' Second Amended and Substituted Complaint. Because the allegations and averments as to separate defendant Texaco are materially unchanged by the Second Amended and Substituted Complaint, the Court by Order of even date, grants Texaco's Renewal Motion.

In response to Texaco's Motion for Summary Judgment and for the reasons stated below, the Court grants in part, and denies in part. The Court finds that there remains a genuine issue of fact whether or not a Storage Contract (Exhibit A, Def's Mot. Summ. J.) is binding as between Texaco and the Sewells and so denies Summary Judgment for Texaco based upon any rights pursuant to that contract. The Court finds that the Arkansas Solid Waste Management Act (as codified in the Arkansas Code in § 8-6-201 et seq. hereafter "ASWMA") is remedial in nature and retroactive application is not improper and denies Summary Judgment for Texaco so predicated. The Court finds that the statute of limitations will not bar the Sewell's claims of common law trespass or violation of ASWMA and so denies Summary Judgment for Texaco so predicated. However, the Court finds as a matter of law, that the Sewells, as lessor of a given tract of land, may not maintain an action for common law nuisance against a previous lessee for lessee's activities on that tract and therefore grants summary judgment for Texaco on the nuisance claim.


This action rises from the remains of exploration and production activities by the Defendant oil companies conducted on a tract of land situated in Ouachita County, Arkansas and beginning early in the 1920's and continuing to the present day. The Defendants have successively held an oil and gas lease on that tract of land. Over the years and pursuant to their lease, the oil companies explored and produced oil and gas on the subject property and on properties in proximity to the subject property. The Sewells, plaintiffs and current landowners of the tract, claim that the oil companies improperly utilized the land in handling, storage, treatment and disposal of oilfield wastes. Plaintiffs are seeking, inter alia, restoration of the property, abatement of improper activities, and damages both compensatory and punitive. Texaco attacks the Sewells' claim for recovery as pled under four of the theories in the Second Amended Complaint: two common law claims under trespass and nuisance and the two statutory claims under the federal Resource Conservation and Recovery Act, as codified in 42 U.S.C. §§ 6901 et. seq. ("RCRA") and the Arkansas Solid Waste Management Act, as codified in A.C. A. §§ 8-6-201 et.seq. ("ASWMA"). Defendant Texaco, who held the initial lease until 1943, argues in this instant Motion that it is entitled to judgment as a matter of law because of fatal defects in Plaintiffs' reliance on each of these four theories of action.


Prosecution and disposition of a motion for summary judgement is governed by Rule 56. Courts order summary judgment where "... there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). The posture of the Court and the order of the proof are clear. Courts construe the evidence and all reasonable inferences in a light most favorable to the non-moving party, in this case, the Sewells. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Texaco, as movant, must first show there are no genuine issues of facts material to the instant case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden then shifts to the Sewells to show there remains a genuine issue of material fact to be adjudicated in the trial setting. Anderson, at 256, 106 S.Ct. 2505; Krenik v. County of Le Sueur, 47 F.3d 953, 957. (8th Cir.1995). The burden is proof by specific facts, that is, the Sewells must do more than show some metaphysical doubt as to material facts. Matsushita, at 586, 106 S.Ct. 1348. But where the record could not lead a rational trier of fact to find for the Sewells, there is no genuine issue for trial and Texaco is entitled to judgment as a matter of law. Anderson, at 256, 106 S.Ct. 2505; Krenik at 957. A dispute is genuine where the evidence could lead a reasonable jury to find for either party. Anderson at 251-252, 106 S.Ct. 2505; Westchem Agri Chem. Inc. v. Ford Motor Co., 990 F.2d 426 (8th Cir. 1993). A fact is material if it is outcome-determinative. Anderson, at 248, 106 S.Ct. 2505; Get Away Club v. Coleman, 969 F.2d 664, 666 (8th Cir.1992). Summary judgment is most appropriate in those cases where the issues for resolution are primarily legal and not factual.


Texaco argues it is entitled to judgment as a matter of law as to four causes of action pled in this case. Texaco argues that RCRA, ASWMA, nuisance and trespass are all barred by a storage contract between the Sewells and Texaco. Texaco also argues that ASWMA, nuisance and trespass are barred by the statute of limitations. In addition, Texaco argues that the ASWMA claim must fail because that statute may not be applied retroactively. Finally Texaco argues that the Sewell's have failed to state a claim for nuisance because nuisance will only lie as between the owners of two separate tracts not as between the owner of a tract of land and the former owner of mineral lease on the same tract of land. The Court will deal with each argument in turn.

A. Effect of a storage contract between Texaco and the Sewells' predecessors in interest.

Texaco argues that the Sewells may not bring an action under trespass, nuisance, RCRA or ASWMA because the Sewells' predecessors in interest specifically authorized and participated in the very activities for which this current action is maintained. Texaco submits that the Complaint is a violation of the contract. The Sewells respond that the contract is not valid and in fact does not authorize Texaco's activities. They argue that the Storage Contract is not binding because the contract grantors did not have a valid interest in the land and they submit a decree from the Chancery Court of Ouachita County that quiets title to the property and brings into doubt the validity of the Storage Contract. The Sewells also maintain that even if the contract is valid, it does not grant Texaco the right to engage in activities complained of in this action. Texaco, in its Reply, does not respond or refute the Sewells assertions in this regard.

The Court need not wade far into the arguments of counsel with regard to the Storage Contract. Texaco's initial factual hurdle is the validity of the contract, a question material to the issue. Construing the evidence and all reasonable inferences from the evidence in a light most favorable to the Sewells', it would be impossible for this Court to conclude with the evidence before it that a rational trier of fact might not find that the Storage Contract was invalid. Therefore denial of Texaco's Motion for Summary Judgment is proper to the extent it is predicated upon any theory concerning the Storage Contract.

B. Effect of the statute of limitation on actions sounding in trespass.

Texaco argues that the statute of limitations has run on any trespass claim because its actions ceased in 1943 and the resulting injury has been complete, open and obvious since that time. Actions for trespass on land are...

To continue reading

Request your trial
5 cases
  • Patton v. Tpi Petroleum, Inc.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • February 11, 2005
    ...over time, but the definition of nuisance in Arkansas does not encompass the facts in the instant case. See Sewell v. Phillips Petroleum Co., 197 F.Supp.2d 1160, 1172 (W.D.Ark.2002). To adopt the plaintiffs' position would be to depart from the historic role that the law of private nuisance......
  • Mckesson Corp. v. Grisham, CASE NO. 3:15-CV-03026
    • United States
    • U.S. District Court — Western District of Arkansas
    • December 17, 2015
    ...the proposition that it can. Both Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005), and Sewell v. Phillips Petroleum Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002), held that the Arkansas Supreme Court has implicitly defined nuisance to involve two parcels of land, and dismis......
  • Highland Industrial Park v. BEI Defense Systems, 357 F.3d 794 (Fed. 8th Cir. 2/4/2004)
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 4, 2004
    ...tolled indefinitely. See id., 347 Ark. at 625, 66 S.W.3d at 618. The district court cited only one case, Sewell v. Phillips Petroleum Co., 197 F. Supp.2d 1160, 1168 (W.D. Ark. 2002), supporting the validity of the continuing trespass theory in Arkansas. That opinion in turn relied on the ho......
  • Garner v. Butterball, LLC
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • February 22, 2012
    ...courts observe a strict rule of statutory construction against retroactive operation of statutes."); Sewell v. Phillips Petrol. Co., 197 F. Supp. 2d 1160, 1171 (W.D. Ark. 2002) (quoting the Arkansas Supreme Court for the proposition that retroactive application is not appropriate if new obl......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • FNREL - Special Institute Oil & Gas Agreements: Purchase & Sale Agreements (FNREL)
    • Invalid date
    ...§ 3106.7-2 (2015)(onshore leases), 30 C.F.R. § 556.64(a)(6) (2015) (offshore leases). [137] See Sewell v. Phillips Petroleum Co., 197 F.Supp2d 1160 (W.D. Ark. 2002) (suit against oil company that conveyed leasehold interest in 1943 for improper disposal of oil field waste under Arkansas Sol......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT