West v. Brenntag Southwest Inc.

Injury to the property occurred during the years 1976-1980, while Delta dumped on the property. The fact, on which West relies, that the injury has remained throughout West's ownership does not create a new injury to the land. Rather, the injury is a continuous, lingering injury and one for which West, a subsequent landowner without an assignment of claims, has no standing to sue.

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Click here for the full text of this decision FACTS:This is an appeal from a judgment in favor of a current landowner, Marion Thomas West, Individually and d/b/a Royle Container Co. (West), awarding him $1,024,986.30 in damages and $500,000 in exemplary damages against a former operator on the land, Brenntag Southwest Inc., Successor in Interest to Delta Solvents and Chemical Co., formerly d/b/a Delta Container (Delta/Brenntag), who engaged in drum reconditioning and waste disposal that caused significant contamination of the property. In November 1991, West and Delta entered into an agreed order for Remediation with the Texas Water Commission. 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. 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. Over a decade after the parties entered into the agreed order, West filed suit. The trial court submitted the case to the jury on theories of negligence, nuisance and breach of contract. The jury found that Brenntag failed to comply with the agreed order and that its failure caused West $900,000 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. HOLDING:Reversed and rendered that West take nothing. The record establishes that the injury to the property occurred during the years 1976 – 1980, while Delta dumped solvents into the earth and buried several drums of solvents. The fact that the injury has remained throughout West’s ownership does not create a new injury to the land. Rather, the injury is a continuous, lingering injury and one for which West, a subsequent landowner without an assignment of claims, has no standing to sue, the court states. The trial court was without subject-matter jurisdiction over these claims, the court holds. The jury found that Brenntag, but not West, “fail[ed] to comply with the November 1991 Agreed Order” and that Brenntag’s failure resulted in damages to West in the amount of $900,000. The order names as “responsible” and “liable” respondents West, Royle Container and Delta. It outlines the duties which the respondents, as a group, must fulfill. These duties are imposed by and owed to the state. Nowhere does the order specify what Brenntag must do to fulfill obligations to West. The agreed order does not reveal mutual obligations between West and Brenntag. Rather, the consideration supporting the agreed order flows only between the state and the respondents. Nor does the remaining record support the jury’s findings as to the contractual damages. Testimony regarding a lack of communication and cooperation between West and Brenntag over the course of several years serves to confirm that the agreed order did not create a valid, enforceable contract between West and Brenntag, the court concludes. The record, even when viewed in a light most favorable to the jury’s findings, does not support the finding that Brenntag’s failure to comply with the agreed order caused $900,000 in damages to West, the court holds. The record establishes, as a matter of law, that West could not recover on a breach of contract claim. Further, West was not entitled to attorney’s fees based on the jury’s findings regarding breach of contract. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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