Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

No. 12-0905
TAMES

ENVIRONMENTAL PROCESSING SYSTEMS, L.C. v. FPL FARMING LTD.

Oral argument was held on January 7, 2014. The Court issued an opinion resolving the case on February 6, 2015. It then denied rehearing on May 1, 2015 File Closed

In the news...

Tracking 4 articles about this case.

February 6, 2015

Four opinions, no grants [Feb. 6, 2015]

from SCOTXblog

The Court has issued opinions:

January 7, 2014

Texas Supreme Court Weighs Underground Trespassing Case

from Texas Tribune

December 10, 2013

Seven cases granted for argument in January 2014

from SCOTXblog

This article also mentions 6 other cases.

December 6, 2013

Texas Supreme Court to Mull Underground Trespassing

from Texas Tribune

Opinion

February 6, 2015

Green
Hecht
Johnson
Willett
Guzman
Lehrmann
Boyd
Devine
Brown

Justice Green delivered the opinion of the CourtView Electronic Briefs | Oral Argument | Video . PDF

 

Court of Appeals

Appellate District:9th Court of Appeals
Outcome Below:Reverse & Remand
COA Docket No.:09-08-00083-CV
Opinion Author:Honorable Hollis Horton

Trial Court

Trial Court:75th District Court
County:Liberty
Trial Judge:Honorable Vann Culp
Trial Docket:CV71974

Entries on SCOTX Orders Lists

Docket Entries

Date Event Outcome  
2015-05-01 Motion for Rehearing - Disposed Denied
2015-05-01 Mandate issued  
  This case was waiting for a decision about a pending motion for rehearing between March 9, 2015 and May 1, 2015.  
2015-03-09 Case forwarded to Court
2015-03-09 Motion for Rehearing for pet #2 - Filed  
2015-02-12 Motion for Extension of Time to File Motion for Rehearing disposed (Respondent)   Filing granted
2015-02-12 Motion for Extension of Time to File Motion for Rehearing (Respondent)  
2015-02-06 Court approved judgment sent to attorneys of record Issued
2015-02-06 Opinion issued   Court of Appeals' judgment reversed & judgment rendered
2015-02-06 Opinion issued Issued
  This case was awaiting the Court's decision after oral argument between January 7, 2014 and February 6, 2015.  
2014-01-07 Oral argument  
2014-01-07 Oral argument  
2014-01-02 Amicus Curiae Brief received  
2014-01-02 Letter brief  
2013-12-23 Oral Argument Submission Form from Attorney received (Petitioner)  
2013-12-13 Oral Argument Submission Form from Attorney received  
2013-11-22 Petition for Review disposed Filing granted
2013-11-22 Petition for Review disposed Filing granted
2013-11-22 Case set for oral argument   Case set for oral argument
2013-11-22 Case set for oral argument   Case set for oral argument
2013-11-22 Petition for Review granted
2013-11-22 Petition for Review granted
  This case was pending on merits briefs between September 24, 2013 and November 22, 2013.  
2013-09-24 Supplement to Amicus Curiae  
2013-09-18 Reply brief filed  
2013-09-18 Reply brief filed  
2013-09-18 Amicus Curiae Brief received  
2013-08-09 Motion for Extension of Time disposed. (Petitioner)   Filing granted
2013-08-09 Motion for Extension of Time disposed. (Petitioner)   Filing granted
2013-08-08 Motion for extension of time to file brief. (Petitioner)  
2013-08-08 Motion for extension of time to file brief.  
2013-08-02 Brief filed (Respondent)  
2013-08-02 Brief filed (Respondent)  
2013-07-17 Motion for Extension of Time disposed.   Filing granted
2013-07-17 Motion for extension of time to file brief. (Petitioner)  
2013-07-17 Motion for Extension of Time disposed. (Petitioner)   Filing granted
2013-07-17 Motion for extension of time to file brief.  
2013-07-03 Brief filed  
2013-07-03 Response to Amicus Curiae Brief filed (Respondent)  
2013-07-03 Brief filed (Petitioner)  
2013-05-24 Motion for Extension of Time disposed. (Petitioner)   Filing granted
2013-05-24 Motion for extension of time to file brief. (Joint motion filed)  
2013-05-08 Case Record Filed  
2013-05-03 Record Requested in Petition for Review  
2013-05-03 Brief on the Merits Requested  
2013-04-10 Amicus Curiae Brief received (Amicus Curiae)  
2013-03-20 Response to Amicus Curiae Brief filed (Respondent)  
2013-03-20 Reply filed (Petitioner)  
2013-03-12 Case forwarded to Court
2013-03-12 Case forwarded to Court
2013-03-06 Response to Petition filed  
2013-03-06 Amicus Curiae Brief received (Amicus Curiae)  
2013-03-06 Reply filed (Petitioner)  
2013-02-06 Motion for Extension of Time to File Response disposed (Respondent)   Filing granted
2013-02-06 Miscellaneous motion disposed. See Remarks. (Petitioner)   Filing granted
2013-02-01 Motion for Extension of Time to File Response (Respondent)  
2013-02-01 Miscellaneous motion filed.  
2013-01-18 Response to Petition filed (Respondent)  
2013-01-18 Petition for Review #2 filed (Petitioner)  
2013-01-07 Amicus Curiae Brief received  
2012-12-19 Petition for Review filed (Petitioner)  
2012-11-13 Letter Filed (Respondent)  
2012-11-13 Motion for Extension of Time to File Petition for Review disposed (Petitioner)   Filing granted
2012-11-12 Response to Motion filed (Respondent)  
2012-11-09 Phone call from Clerk's Office (Respondent)  
2012-11-07 Motion for Extension of Time to File Petition for Review filed (Petitioner)  

Parties

Party Counsel Role
FPL Farming Ltd.
Honorable Justin Brett Busby
Mr. Paul L. Mitchell
Mr. Hutson Brit Smelley
Mr. C. B. Stratton
Mr. Christopher Jene Richart
Ms. Claudia Wilson Frost
Respondent
Environmental Processing Systems, L.C.
Ms. Melissa Prentice Lorber
Mr. Craig T. Enoch
Mr. Richard G. Baker
Petitioner

Amici Curiae

Amicus Curiae Counsel
The Texas Chemical Council
Mr. Thomas J. Adair
Ms. Christina T. Wisdom
Mr. Jay Lloyd Krystinik
Robert F. Van Voorhees
Texas Farm Bureau
Mr. Andy McSwain
Association of Energy Service Companies
Ms. Leslie Ritchie Robnett
Mr. Mark A Mayfield
Mr. Peter Scaff
Mr. Geoffrey H. Bracken
Texas Oil and Gas Association
Ms. Samara L. Kline

Lack of consent is part of the definition of trespass, not an affirmative defense

A farming company (FPL) got into a dispute with an environmental-wastewater company (EPS) that was injecting wastewater into the deep subsurface where it, allegedly, ended up beneath FPL's property. The farming company sued the enviornmental-wastewater company for trespass, that trespass taking place in the deep subsurface water table beneath its land.

If that scenario sounds familiar, it may be because this case is making its second visit to the Texas Supreme Court. In 2011

This case is making its second visit to the Supreme Court. The first time, the court of appeals held that the farming company could not sue for trespass because the State regulator had issued a permit. The Texas Supreme Court reversed, holding that the permit was not a bar to civil liability. FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., No. 09-1010

On remand, the court of appeals ruled that the farming company should get a new trial. Part of its reasoning was that the jury charge was defective because it required the plaintiff farming company to prove a lack of consent to recover for trespass. In the court of appeals’s holding, that was an affirmative defense on which the defendant should have had the burden to establish the presence of consent.

With this opinion, the Texas Supreme Court disagreed. It surveyed a line of its own cases, going back to the days of the Republic, which described consent as part of the definition of trespass itself. Responding to FPL’s citation to some courts of appeals that used the term “affirmative defense” to describe the question of consent, the Court suggested that may have been discussing just the general concept that a defendant who did prove consent would defeat the claim, no matter whose burden of proof it actually way. As such, those courts may have “perhaps hastily used the term ‘affirmative defense’ to describe this proposition.” (The Court also notes that “[t]here is no pattern jury charge for a trespass to real property cause of action in Texas.” One suspects that might change.)

Having held that a plaintiff in a trespass claim does bear the burden to prove the lack of consent, the Court concluded that the jury charge here was not erroneous. Because this part of the Court’s decision was sufficient for the defendant to prevail, and because the Court was rendering judgment rather than sending the case back for a new trial, the Court saw no need in this case to reach the broader question of whether Texas law imposes a duty on a landowner to avoid causing this kind of “deep subsurface wastewater migration” beneath neighboring land.

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