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Torts No. 01-1214, 5/22/2003. Click here for the full text of this decision FACTS: In this appeal, the court explores the contours of the Right to Farm Act’s affirmative defense against claims that agricultural operations are a nuisance. The act provides that “[n]o nuisance action may be brought against an agricultural operation” that has been in lawful operation for more than a year “if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation.” Texas Agricultural Code �251.004(a). The petitioners (David Holubec and Mary Holubec) here are agricultural operators who complain that a defective jury charge denied them the protection of this defense. They also complain that the court of appeals erred in holding that they waived their complaints of charge error. HOLDING: The court reverses, dissolves the injunction, and remands to the trial court. The Holubecs maintain that �251.004(a) is a one-year statute of repose, while the respondents (the Brandenbergers and Lees) maintain that it is merely a statute of limitations. While either statute sets deadlines for plaintiffs to file claims, the period set under a statute of repose is independent of the claim’s accrual or discovery. Trinity River Auth. v. URS Consultants, 889 S.W.2d 259 (Tex. 1994); 2 Roy W. McDonald & Elaine G. Carlson, Texas Civil Practice � 9.71 at 649 (2d ed. 2002). Thus, statutes of repose not only cut off rights of action within a specified time after they accrue, but also they may even cut off rights of action before they accrue at all. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 654 n.1 (Tex. 1989) (per curiam). The Brandenbergers and Lees counter that �251.004(a) cannot be a statute of repose because its proviso precludes a nuisance action from being cut off before it accrues. 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 and enjoy it. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993). Because there can be no nuisance without offending conditions, the Brandenbergers submit that there can be no bar to an action after the one-year period provided by �251.004(a) unless the offending conditions commence simultaneously with the start of operations. Otherwise, the offending conditions “constituting the basis of for the nuisance action [will not] have existed substantially unchanged” since the commencement of operations. The purpose of repose statutes is to give absolute protection to certain parties from the burden of indefinite potential liability. Statutes of repose do not typically shorten an existing limitations period; instead, they fix an outer limit beyond which no action can be maintained. Thus, if the one-year period prescribed in �251.004(a) is a statute of repose, it is unique because it is conditional and because it is so short. According to the statute, the one-year bar applies on proof of two conditions: 1. the agricultural operation was in business lawfully for more than a year before the nuisance action was filed; and 2. the “conditions and circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged” since then. Legislative history suggests that this defense was provided in response to concern about “the state losing productive agricultural land due to nuisance suits filed by individuals and organizations who have moved next to preexisting and heretofore successful agricultural operations . . . .” House Comm. on Agric. & Livestock, Bill Analysis, Tex. S.B.488, 67th Leg., R.S. (1981). In light of this history and the act’s stated purpose, the court concludes that the defense in �251.004(a) was intended to bar a nuisance action against a lawful agricultural operation one year after the commencement of the conditions or circumstances providing the basis for that action. Thus, under the act it does not matter when the complaining party discovers the conditions or circumstances constituting the basis for the nuisance action. Instead, the relevant inquiry is whether the conditions or circumstances constituting the basis for the nuisance action have existed for more than a year. The Brandenbergers and Lees contend that they commenced in August 1997 at the earliest; while the Holubecs maintain that any basis for the plaintiffs’ nuisance action existed before July 30, 1997, more than a year before suit was filed. Rather than submit that question to the jury, the trial court posed another: whether the conditions and circumstances constituting the basis for the nuisance action had remained substantially unchanged since the Holubecs first began feeding sheep on the unimproved pasture land in 1987. The issue submitted was not in dispute by the close of evidence and was no longer germane to whether the feedlot constituted a nuisance. The Holubecs specifically objected to the date submission. Although their requested submission was not specifically tied to the conditions or circumstances complained of as constituting the basis for the nuisance action, they plainly sought the submission of their statutory defense. Because the question actually submitted was defective, however, the Holubecs did not have to submit their own substantially correct question. The Holubecs’ objection was sufficient to preserve error. They are entitled to a remand because the trial court did not fairly submit the factual issue that could have established their defense under the Right to Farm Act. OPINION: Phillips, C.J., delivered the court’s opinion.

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