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Click here for the full text of this decision FACTS:Tom Chambers owned a tract of land that he deeded to a company he created in 1997 called Annetta Development Corp. Annetta subsequently entered into an agreement with Aledo Construction Inc. to develop the property for residential use. Annetta also entered into an agreement and a warranty deed with Sean Knight Custom Homes (“Custom Homes”) to purchase lot 26 of one of the development phases. Sean Knight, the owner of Custom Homes, conveyed lot 26 to Rick Bloomfield (“Rick”), his brother-in-law, who subsequently transferred the lot to his father, Richard Bloomfield Sr. (“Bloomfield Sr.”). Bloomfield Sr. was in the process of selling the lot and the home to be built on it to the McWeeneys, but the closing had been rescheduled. The McWeeneys had hired Knight to build the house. Meanwhile, in April 1999, Melvin Walcott, while working on the lot for Knight, ruptured a pipeline pipe owned by Seaway Products Pipeline Co. Bloomfield Sr. was out of the country at the time, and he had left a power of attorney with Rick to close on the lot while he was gone, but the accident occurred before the sale could take place. Tim and Ashley McAuliffe, who owned the adjoining lot, sued Seaway, ARCO, Knight, Custom Homes and Walcott. They also sued Doyle Hanley, Aledo, Chambers and Annetta, all of whom had been involved in the sale of the property. Seaway filed cross-claims against all defendants except ARCO, and added Bloomfield Sr. as a third-party defendant. The McAuliffes settled with Seaway, and their remaining claims were severed from Seaway’s cross-claims and third-party claims. Seaway asserted that Hanley, Aledo, Chambers and Annetta were liable for negligence and gross negligence in: 1. platting the lot so that the pipeline was situated in the front of the lot; 2. mislocating the pipeline easement on the recorded plat of the subdivision; 3. publicizing a sales map without reference to or otherwise indicating the existence of the pipeline; and 4. failing to warn others of the existence, location and depth of the pipeline. Seaway claimed that Knight and Walcott were Bloomfield Sr.’s agents, and that Bloomfield Sr. and Knight were engaged in a joint enterprise to develop and sell the lot. Seaway also claimed that Bloomfield Sr. directly and through Knight and Walcott, was: 1. negligent; 2. negligent per se for failing to notify Seaway that excavation was to be conducted on the lot, as required by Utilities Code 251.151; and 3. liable for Seaway’s reasonable and necessary cost of removal, remedial action and other costs pursuant to Health & Safety Code 361.344(a). Hanley and Bloomfield Sr. filed individual no-evidence motions for summary judgment. Aledo filed a combined traditional and no-evidence summary judgment motion. Chambers and Annetta filed a joint combined motion. When Seaway answered these motions, Hanley and Bloomfield Sr. filed detailed objections directed at Seaway’s exhibits, specifically the affidavit of Kathy Berry, a former ARCO employee, and the “Background” section in Seaway’s summary judgment response. The trial court: 1. granted Hanley’s and Bloomfield Sr.’s motions for summary judgment; 2. sustained, in some part, each of Hanley’s objections to Seaway’s summary judgment evidence; 3. sustained Bloomfield Sr.’s objections to Berry’s affidavit and the “Background” section of Seaway’s response; 4. severed Seaway’s claims against the other defendants; and 5. entered a final take-nothing judgment in favor of Hanley and Bloomfield Sr. HOLDING:Affirmed. In response to Hanley’s no-evidence motion for summary judgment, Seaway was required to present evidence on the elements of its claims. Seaway presented some evidence, but the trial court struck that evidence. Therefore, there was no evidence left to be asserted against Hanley that would raise a genuine issue of material fact against him. Turning, then, to Bloomfield Sr.’s summary judgment motion, which again required Seaway to produce evidence against Bloomfield Sr., namely that he had a duty or that he breached his duty as a landowner; that he breached a duty imposed on him by statute; or that he was subject to the Solid Waste Disposal Act because he does not fit the definition of a “person responsible for solid waste” under that act. Seaway failed to present any summary judgment evidence showing that Bloomfield Sr. authorized or was even aware of Knight’s and Walcott’s development of the lot. Therefore, all of Bloomfield Sr.’s alleged breaches of duty, except the duty to use ordinary care in keeping the lot in a safe condition, hinge on Bloomfield Sr.’s negligence through Knight and Walcott during the development of the lot. The court then looks at the relationship Bloomfield Sr. had with Knight and Walcott to see if a duty was created. Seaway contends that Bloomfield Sr., Knight and Custom Homes were in a joint venture to sell the lot and build on the lot, all in one package. The court looks at deposition and other evidence to determine if the parties had a community of pecuniary interest. Here, there was no evidence of a sharing of resources, pooling of funds, monetary investment, costs or benefits between Bloomfield and Knight, so there was no joint venture in this respect. And Berry’s statement that Bloomfield Sr. and Knight were “involved” in the development, does not, by itself, create a joint enterprise. Bloomfield Sr. thus cannot be held liable under this theory for Knight’s or Walcott’s negligent acts. The court then looks to see if Bloomfield Sr. personally breached his duty as a landowner. Though Seaway presented evidence that he was aware of the pipeline, there was no evidence to show that Bloomfield Sr. was aware of Knight’s or Walcott’s activities that resulted in the ruptured pipe. The court, therefore, affirms summary judgment for Knight and Walcott on Seaway’s negligence claims. The court next reviews Seaway’s negligent per se claims. Seaway claims the defendants violated Utility Code 251.151(a), which requires advance notice of excavation projects. However, Seaway failed to present evidence that Bloomfield Sr. knew of the excavation or gave anyone permission to conduct the excavation, or, as previously discussed, that a joint enterprise existed or that Walcott was his agent, employee or independent contractor. As a result, there is no evidence raising a genuine issue of material fact that Bloomfield Sr. breached a duty imposed on him by 251.151. In order to maintain its SWDA claim against Bloomfield Sr., Seaway was required to bring forward some probative evidence that raised a genuine issue of material fact on whether Bloomfield Sr.is a person responsible for solid waste under the act. The only evidence that Seaway offered was Bloomfield Sr.’s deposition testimony that he owned the lot at the time of the gasoline pipeline rupture and that he still owns the lot. Though the issue of who qualifies as a person responsible for solid waste is an issue of first impression in this court, the court quickly concludes that it is “unfathomable that the legislature intended every residential landowner in Texas who has a pipeline easement running underneath their property to be considered an owner and operator of a”solid waste facility.’” Next, the court reviews the summary judgment motion of Aledo and the Chambers/Annetta joint motion. The court agrees that Seaway did not produce any evidence to establish that anything these defendants did was the proximate cause of the damage to Seaway’s pipe. First, there was no evidence that the developer’ platting of the lot so that the pipeline ran under the front of the lot as opposed to the back or sides was a proximate cause of the rupture, nor was there evidence that the developers could have foreseen the rupture. Though Seaway asserts that the developers caused the rupture by failing to accurately locate the pipeline easement on the recorded plat, it did not present any evidence that Knight or Walcott relied on the plat to locate the pipeline easement. Finally, Seaway fails to present any evidence that the sales map used by the McWeeneys’ residential designed used to draft the site plan was the sales map for lot 26. “In fact, the evidence show just the opposite; the sales map the McWeeneys gave [the designer] and on which he based his site plan was for a different lot (lot 29) that did not have a pipeline easement.” OPINION:McCoy, J.; Dauphinot, Gardner and McCoy, JJ.

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