Walton v Phillips Petroleum Co
| Decision Date | 29 November 2001 |
| Docket Number | No. 08-00-00385-CV,08-00-00385-CV |
| Citation | 65 S.W.3d 262,152 Oil & Gas Rep. 310 |
| Parties | JUD WALTON, Appellant, v. PHILLIPS PETROLEUM COMPANY, USA., INC., PIONEER NATURAL RESOURCES COMPANY, and PIONEER NATURAL RESOURCES USA, INC., Appellees.Court of Appeals of Texas, El Paso |
| Court | Texas Court of Appeals |
COUNSEL: APPELLANT - PRO SE: Jud Walton, Midland, TX.
ATTORNEY FOR APPELLEE: Hon. John A. 'Jad' Davis, Turner & Davis, Midland, TX. Hon. Holly Beth Williams, Turner & Davis P.C., Midland, Tx.
Before Panel No. 1, Larsen, McClure, and Chew, JJ.
Jud Walton, pro se, appeals from a summary judgment granted in favor of Phillips Petroleum Company, (Phillips) and Parker & Parsley Petroleum USA, Inc., Pioneer Natural Resources Company, and Pioneer Natural Resources USA, Inc. (referred to collectively as Pioneer). We affirm.
In November 1996, Walton filed suit against the City of Midland alleging that its sewer treatment farm had contaminated the groundwater beneath his ranch in Midland County. In May 1998, he added several other defendants, including Phillips and Pioneer. With respect to these defendants, he alleged that their operation of open salt water pits had contaminated the groundwater and that they had failed to prevent the migration of pollutants from the pits to the groundwater.
The trial court granted summary judgment with respect to the City of Midland and several other defendants in September 1998, and then severed those summary judgments into a new cause number. Walton filed notice of appeal to this court on January 7, 1999. As that appeal remained pending, Phillips and Pioneer filed motions for traditional and no-evidence summary judgment. Although they filed separate motions, the grounds raised are identical: (1) Walton's claims for permanent damages are barred by limitations; (2) Walton's damages are permanent rather than temporary as a matter of law; and (3) there is no evidence of causation. Before the trial court ruled on these motions for summary judgment, we affirmed in part and reversed in part those summary judgments granted in favor of the City of Midland and other defendants. See Walton v. City of Midland, 24 S.W.3d 853 (Tex.App.--El Paso 2000, no pet.). Having the benefit of our decision, the trial court granted Phillips' and Pioneer's motions for summary judgment and then entered a severance order which rendered those judgments final.
In Issues One and Two, Walton challenges the granting of summary judgment in favor of Phillips and Pioneer on his nuisance, negligence, and trespass causes of action. Before addressing the statute of limitations issue raised in the traditional summary judgment motion, we will consider the no-evidence summary judgment granted on the element of causation. In that respect, Walton argues that the trial court improperly granted a no-evidence summary judgment in favor of Phillips and Pioneer because their motions did not comply with TEX.R.CIV.P. 166a(i) and because he produced sufficient evidence to raise a genuine issue of material fact as to the challenged elements. With respect to his first argument, it is waived because Walton did not raise this objection in the trial court. See Walton, 24 S.W.3d at 857; 1 Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 117 (Tex.App.--Waco 1999, no pet.); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194-95 (Tex.App.--Amarillo 1999, pet. denied).
Turning to the merits of the issue, a no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Wyatt v. Longoria, 33 S.W.3d 26, 31 (Tex.App.--El Paso 2000, no pet.); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-- San Antonio 1998, pet. denied); see also S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Wyatt, 33 S.W.3d at 31. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Havner, 953 S.W.2d at 711; Wyatt, 33 S.W.3d at 31. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Wyatt, 33 S.W.3d at 31; Ruiz v. Government Employees Ins. Co., 4 S.W.3d 838, 840 (Tex.App.--El Paso 1999, no pet.), citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists when the evidence " rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711; Wyatt, 33 S.W.3d at 31.
Although it is not required to do so, Phillips offered summary judgment evidence in an effort to negate causation. According to an affidavit of Tom Atkins, Senior Land Specialist with Phillips Petroleum Company, Phillips is currently operating only one well located on Section 47 of the Walton Ranch. It "spudded" this well on December 9, 1978, and completed it on March 31, 1979. Atkins' visual inspection of the well and review of certain records revealed no evidence that a salt water disposal pit had been used in connection with this well. In fact, the records indicate that produced water from the well is transported to a commercial salt water disposal facility. Phillips had previously possessed a leasehold interest in portions of Sections 35, 37, 43, and 47 but it assigned all of those oil and gas leasehold interests to Wood & Cockburn, Inc. on October 9, 1970. Additionally, it assigned all of the working interest in a lease located in the NW/4 of Section 47 to Midland Resources, Inc. in 1985.
In an effort to establish causation, Walton points to evidence that Phillips admittedly conducted oil and gas operations in Section 35 prior to 1970 and that a salt water disposal pit had been identified on the property by Mark Henkhaus, District Director for the Texas Railroad Commission, through the examination of aerial photographs. He also tendered the affidavit of Paul Dowling, a Technical Environmental Projects Manager, to show that the salt water disposal pit located adjacent to Walton's water well on Section 35 is a probable source of the contamination of the water well. Similarly, Walton relied on the deposition testimony of George William Hartzoge, who had also formed the opinion that the source of contamination is more probably than not "a salt water pit." Standing alone, evidence that Phillips conducted operations on a portion of Section 35 and that a salt water disposal pit is found on the section does not establish that Phillips actually utilized the pit for the disposal of production water. Following the summary judgment hearing, Walton offered additional evidence in an effort to establish causation. Through the testimony of Henkhaus, Walton showed that Phillips had operated the Beth A well and produced 10,732 barrels of salt water in 1961. When asked whether operators, twenty to thirty years earlier, put salt water into pits on the same lease from which it was produced, Henkhaus stated as follows:
[Answer]: Generally speaking, yes. It was because that's the least costly way to handle the salt water.
At oral argument, counsel for Phillips expressly conceded that there is evidence from which it may be concluded that Phillips disposed of salt water in the pits during the early 1960's. Presumably, counsel made reference to the foregoing evidence. Given this concession, we find that the trial court erred in granting summary judgment in favor of Phillips on the causation ground.
Similar to the argument made with respect to Phillips, Walton argues that he produced some evidence of causation by showing Pioneer currently conducts operations on Sections 35 and 38, the same sections on which the contaminated water wells are located. He points to no evidence that Pioneer has ever improperly disposed of salt water on either of these sections. Consequently, the trial court did not err in granting Pioneer's motion for summary judgment as to the causation element.
Walton additionally argues that summary judgment in favor of Pioneer is erroneous because it failed to address his claim for injunctive relief. The request for injunctive relief is related to Walton's claim of nuisance. A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use or enjoy it. Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 574-75 (Tex.App.--Texarkana 2000, pet. denied). A nuisance may arise by causing (1) physical harm to property, such as by the encroachment of a damaging substance or by the property's destruction, (2) physical harm to a person on his property from an assault on his senses or by other personal injury, and (3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind. Nugent, 30 S.W.3d at 575. A party may be entitled to abatement of a nuisance or damages if it is not susceptible of abatement. See General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 834 (Tex.App.--Dallas 2000, no pet.). Pioneer moved for summary judgment on the ground that there is no evidence that it caused Walton's damages, which in the case of a nuisance claim is the encroachment of a damaging substance onto the property. Given Walton's failure to produce some evidence of causation,...
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