West v. Brenntag Southwest, Inc., 06-04-00080-CV.

• Decision Date: 20 July 2005
• Docket Number: No. 06-04-00080-CV.,06-04-00080-CV.
• Citation: 168 S.W.3d 327
• Parties: Marion Thomas WEST, Individually and d/b/a Royle Container Company, Appellant, v. BRENNTAG SOUTHWEST, INC., Successor in Interest to Delta Solvents and Chemical Company, formerly d/b/a Delta Container, Appellee.
• Court: Texas Supreme Court

168 S.W.3d 327

Marion Thomas WEST, Individually and d/b/a Royle Container Company, Appellant, v. BRENNTAG SOUTHWEST, INC., Successor in Interest to Delta Solvents and Chemical Company, formerly d/b/a Delta Container, Appellee.

No. 06-04-00080-CV.

Court of Appeals of Texas, Texarkana.

Submitted June 16, 2005.

Decided July 20, 2005.

COPYRIGHT MATERIAL OMITTED

John R. Mercy, Mercy, Carter & Tidwell, LLP, Texarkana, Ron Adkison, Wellborn Houston, LLP, Henderson, for appellant.

Craig A. Morgan, Elizabeth G. Bloch, Brown McCarroll, LLP, Austin, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

This is an appeal from a judgment in favor of a current landowner, Marion Thomas West, Individually and d/b/a Royle Container Company (West), awarding him $1,024,986.30 in damages and $500,000.00 in exemplary damages against a former operator on the land, Brenntag Southwest, Inc., Successor in Interest to Delta Solvents and Chemical Company, formerly d/b/a Delta Container (Delta/Brenntag), who engaged in drum reconditioning and waste disposal that caused significant contamination of the property. West appeals the trial court's failure to award attorney's fees. Brenntag brings several points of error, raising issues of standing, nature of the injury to the land, breach of contract, and measure of damages. We sustain two of Brenntag's cross-points of error, concluding that West lacked standing to bring a cause of action in negligence or nuisance for injury to his land and that the jury's findings regarding breach of an agreed order lacks support in the record. Based on those conclusions, we will overrule West's point of error concerning attorney's fees. Accordingly, we will reverse the trial court's judgment and render judgment that West take nothing by his suit.

I. FACTUAL AND PROCEDURAL HISTORY

A. Delta's Business

Delta Solvents & Chemical Company, predecessor-in-interest to Brenntag, leased the land at 200 Valentine Avenue in Longview from the Walker Trusts. Delta entered into a contract to dispose of solvents and paint and also carried on a drum recycling business at the property.¹ The record demonstrates that these operations involved the dumping of paint and solvents into earthen pits and into a buried milk truck. The record shows that Delta washed out the fifty-five gallon drums onto the ground and buried other fifty-five gallon drums containing hazardous waste. Not surprisingly, the record shows that, in 1980, Delta suspected the soil was polluted and ceased its business.

B. Sale of Business to Sikes

In 1980, Delta sold its business to Philip Sikes. Sikes leased the property from the Walker Trusts until 1982, when he undertook to purchase the land. Before the purchase, Sikes required removal of two buried tanks, one being the buried milk truck tank. He also had Delta remove some of the contaminated soil which, Sikes testified, Delta simply moved to another one of its properties down the road. While he owned the property, Sikes "heard" that drums had been buried on the property, but never located any. Sikes also operated a drum reconditioning business, but recycled the wastewater generated from the cleaning of the drums.

C. West Purchases Property from Sikes

In 1984, West purchased the property from Sikes. West continued the drum reconditioning until 1988. In 1988, West began preparations to build a loading dock on the property, preparations which included bulldozing down a tree. The bulldozer struck a buried drum that began spewing liquid, which then ignited. West discovered that this area has been used as a drum disposal. West contacted Sikes and Delta. The following day, a former Delta employee told West that he thought Delta had buried the drums there. West notified the Texas Water Commission (TWC),² and it immediately began to investigate the site. Twenty drums were ultimately unearthed.

D. TWC's Investigation and Agreed Order of Remediation

In June 1991, the TWC issued its preliminary report. The report detailed the history of ownership of and operations on the property, described the contamination present as "hazardous," and attributed the contamination to the period of Delta's operations.

In November 1991, West and Delta entered into an Agreed Order for Remediation with the TWC. The Agreed Order named West, his company (Royle Container), and Delta as respondents and deemed them "responsible" and "liable" parties within the Solid Waste Disposal Act. See TEX. HEALTH & SAFETY CODE ANN. § 361.271 (Vernon 2001). The Order found that Delta buried the drums and discharged rinsewater and spent solvents into earthen pits. The Order then outlined several steps to be taken by the respondents from planning to reporting to implementation.

E. What Has and Has Not Been Done

Delta/Brenntag hired ARCADIS, an independent environmental consulting firm, which drilled monitoring wells, took soil samples, and tested the soil. ARCADIS has not completed the remediation of the property. According to Brenntag's expert, Michael Gates, Brenntag has spent $200,000.00 to $300,000.00 for ARCADIS' services in advancement of the Agreed Order. In June 2003, Brenntag submitted its remediation action plan, which has not yet been approved. Gates testified that the cost to pump and treat the site with a sugar water treatment in accordance with the remediation plan would cost approximately $750,000.00 to $1,000,000.00.

F. West Files Suit

Over a decade after the parties entered into the Agreed Order, West filed suit.³ After the evidence was closed and the parties rested, the trial court allowed West to amend his petition to include a claim for breach of contract. The parties stipulated that the prevailing party's attorney's fees would be $59,000.00.

G. Jury Charge and Verdict

The trial court submitted the case to the jury on theories of negligence, nuisance, and breach of contract.⁴ Specifically, the jury was asked whether Brenntag failed to comply with the Agreed Order and what damages such failure caused to West. Delta did not object to the submission of the case in this manner. The jury found that Brenntag did fail to comply with the Agreed Order and that its failure caused West $900,000.00 in damages. The jury found in favor of West on all other issues as well. The jury then returned a verdict favoring West on the issue of exemplary damages.

I. Trial Court's Judgment

The court entered judgment in favor of West, awarding actual damages in the amount of $1,024,986.30, plus post-judgment interest, and $500,000.00 in exemplary damages. The judgment recites all the jury's findings, but does not specify on which it was based. The trial court did not award attorney's fees to West.

J. Appellate History

Despite the sizeable award, West filed his notice of appeal July 12, 2004, indicating that his appeal would be taken to this Court. Brenntag filed its notice of appeal August 11, 2004, in the Tyler Court of Appeals.⁵ Brenntag moved to dismiss the appeal filed in this Court and transfer the case to the Tyler court. Brenntag argued that West simply wanted to take the position of appellant and interfere with Brenntag's appeal and that West's appeal was frivolous and should be dismissed.⁶

The matter was forwarded to the Texas Supreme Court. The Texas Supreme Court denied Brenntag's motion to dismiss and its motion to transfer. Therefore, this Court has jurisdiction to determine the appeal and cross-appeal of the trial court's judgment.

K. West's Appeal and Brenntag's Cross-Appeal

West appeals the trial court's refusal to award attorney's fees. West contends the trial court was required to do so since the parties stipulated that the prevailing party's attorney's fees would be $59,000.00. Brenntag also appeals the trial court's judgment, bringing five points of error. For the purpose of clarity and in a manner consistent with the parties' positions at argument, we first address Brenntag's cross-points of error.

II. STANDING

Brenntag points out that West bought the Valentine Avenue property in 1984, years after Delta had deposited the contaminants. Since this injury occurred before West's ownership, and since West did not get an assignment of claims from the previous landowner, Brenntag argues West lacks standing to sue Brenntag for those injuries occurring in 1976-1980, while Delta operated its business on the property. Concluding the pleadings and evidence fail to show a new injury during West's ownership, we agree and dismiss West's negligence and nuisance claims for want of jurisdiction.

A. Standing of Landowner to Sue for Injury to Land

In order for a landowner to have standing to sue for injury to land, one of two circumstances must exist. One, in the case where the injury occurred to the land before the current landowner's purchase of the land, the vendor must have assigned such claims to the landowner. Two, the injury to the land must have occurred during the plaintiff-landowner's ownership of the property.

No one contends that Sikes, the intervening landowner, assigned such claims to West.⁷ See Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 563 (1936). That being the case, the issue, not a new one to this Court, is whether there was an injury to the land while West owned the property.

Recently, we have held that "a landowner lacks standing to sue for injury to real property when any injury occurred before the landowner acquired the property, his or her deed contains no assignment of any cause of action, and there is no evidence of a new injury since the current landowner has owned the property." See Cook, 145 S.W.3d at 780. In Cook, when Exxon ceased its operations on the land and abandoned its equipment, the damage was complete. Id. at 785. Affirming the trial court's summary judgment, we concluded Cook failed to present any evidence that he sustained a new injury since he acquired the property. Id. at 786. Thus, he lacked standing to sue for injury to the land.⁸...