Opinion
13-05-029-CV
05-25-2006
JOHN A. BROOKS, ET AL., Appellants, v. CHEVRON USA INC., AND AMERADA HESS CORPORATION, Appellees,
On appeal from the 234th District Court of Harris County, Texas.
Before Valdez Chief Justice and Rodriguez and Castillo Justices.
See TEX. R. APP. P. 47.1, 47.4.
ERRLINDA CASTILLO JUSTICE
Appellants ('Brooks") appeal from the trial court's orders granting the plea to the jurisdiction filed by Amerada Hess Corporation ("Hess") and the special exceptions and motion to dismiss filed by Chevron USA Inc., d/b/a ChevronTexaco Corp. ("Chevron"). Following an order severing the actions against Hess and Chevron, these orders became final and appealable. We affirm.
Appellants include John A and Kimberly M. Brooks, Miklyn M. Provenzano, Aston B. and Bernice M. Griffiths, Daniel L. and Cinda J. Woodard, Carsten and Sheri L. Asguth, and Timothy S. and Mirian M. Hart.
I. Background
Brooks brought suit in December 2003 against numerous defendants, including Chevron, Hess, several homebuilders, and the developer, claiming that the Woodwind Lakes subdivision, located in northwest Houston and in which all appellants had purchased homes, was built on contaminated soils. Several decades earlier the property was owned by Warren Petroleum, Chevron's predecessor in interest, and was the site of oil and gas operations. Warren ceased all its operations on the site in approximately 1966. The property was later leased to Hess, which operated the existing gas processing plant and gathering facility until Hess's lease expired in 1974.
Defendants included Woodwind Lakes Partnership #3 Ltd., Woodwind Lakes Partnership, Lakeland Development Company Mapani, Inc., Kentner P. Shell, Centennial Homes, Inc. d/b/a Trendmaker Homes, TMI, Inc., Chicago Title Insurance Co., Chevron U.S.A, Inc. d/b/a ChevronTexaco Corp., and Amerada Hess Corporation.
The premises were then returned to Chevron, and Hess had no further dealings with this land. Hess never held title to the land. Chevron sold all its interest in the land in 1979 and 1981, "as is," with earnest money contracts disclosing that the property had previously been used for oil and gas activities and that remnants of the facilities remained. Chevron made no assignments to its purchasers of any claims that might exist for property damage arising from the oil and gas activities during Chevron's ownership. There is also no evidence of any assignments by those purchasers to any subsequent purchasers.
In the first sale, involving two acres sold to Homer B. Saye in February 1979, the earnest money contract stated:
Purchaser and Seller agree that the property is being sold "as is" and that the Seller is not responsible for the removal of or for any liability resulting from the existence of the concrete, steel, water lines, pipes and other remnants of the oil-gas processing facility formerly located on the property.In the second sale, involving almost 13.5 acres sold by Chevron to Robert J. Adam, Trustee, in January 1981, the earnest money contract stated:
Purchaser acknowledges that the Subject Property was heretofore used by Seller as a gasoline plant site. Located on or under the Subject Property are various buildings, equipment, foundations and pipelines, some of which may contain the residue of hydrocarbons or other substances used or produced in Seller's business. Purchaser accepts the Subject Property "as is" and waives any and all claims arising from the presence of such buildings, equipment, pipelines, material or substances.
Some time later, the ultimate developers of the Woodwind Lakes subdivision purchased these properties. Between 1996 and 1998, all of the appellants purchased their homes by general warranty deeds. The record reflects that during the initial development, the developers conducted environmental investigations and were aware of contamination concerns. The record also contains evidence of other investigations and remediation work on the site, both prior to and during the course of the development. However, Brooks alleges that it was not until 2003 that appellants first discovered the earlier oil and gas operations and contamination on their properties.
Brooks's claims against Hess and Chevron include negligence, fraud by concealment failure to disclose, nuisance, and civil conspiracy. Hess responded to Brooks's suit by filing a plea to the jurisdiction asserting that, as subsequent purchasers, the Brooks appellants own no causes of action and therefore have no standing to bring claims against either Hess or Chevron for injury to the land that occurred decades earlier. Chevron raised the same arguments as Hess, but instead utilized the procedure of special exceptions and motion to dismiss. Following exchanges between the parties and hearings held on March 29, 2004, November 8, 2004, and June 21, 2004, the trial court entered the following orders: (1) an order granting Hess's plea to the jurisdiction, dated June 28, 2004, (2) an order sustaining Chevron's amended special exception and granting its amended motion to dismiss, dated June 28, 2004, and (3) an order granting Chevron's and Hess's motion to sever, dated November 9, 2004. Brooks's appeal is taken from the severed cause.
Additional claims were brought against other named defendants.
II. Issues on Appeal
Brooks raises four issues on appeal, contending that the trial court erred in granting Hess's plea to the jurisdiction and Chevron's special exception and motion to dismiss (1) without first permitting an opportunity for adequate discovery and without the procedural safeguards of a summary judgment proceeding, (2) because Brooks does have standing as they are the only ones in the chain of title who have suffered an injury, (3) because fact issues remain relating to possible breaches of implied covenants and express provisions in general warranty deeds and provide standing, and (4) because fact issues relating to Chevron's participation in a civil conspiracy provide standing. Essentially, Brooks argues that (1) he was entitled to more discovery and a summary judgment proceeding, (2) because he suffered injury (by nuisance or otherwise), he has standing, (3) express or implied covenants run with the land to provide standing, and/or the general warranty deeds convey all interests, including the causes of action, and (4) fraudulent concealment or conspiracy made it impossible to know about or raise these claims earlier.
III. Standard of Review
Standing is a question of law which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); City of Fort Worth v. Tuckness, 165 S.W.3d 425, 427 (Tex. App. B Fort Worth 2005, no pet); Byrd v. Estate of Nelms, 154 S.W.3d 149, 155 (Tex. App.B Waco 2004, pet. denied). As a component of subject matter jurisdiction, the issue of standing is reviewed by the same standard applicable to subject matter jurisdiction or a plea to the jurisdiction. Brown v. Todd, 53 S.W.2d 297, 305 (Tex. 2001); Tex. Ass'n of Bus. v. Tex. Air. Control Bd, 852 S.W.2d 440, 445-46 (Tex. 1993). Whether a court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Subject matter jurisdiction is essential to the authority of a court to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); Tex. Ass'n of Bus., 852 S.W.2d at 443. It cannot be presumed and cannot be waived. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 n.2 (Tex. 1996).
"Standing" is a party's justiciable interest in the suit, Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996), and focuses on the question of who may bring an action. M.D. Anderson Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001) (citing In the Interest of B.I.V., 923 S.W.2d 573, 574 (Tex. 1996)). The standing doctrine identifies those suits appropriate for judicial resolution. Brown, 53 S.W.3d at 305. In Texas, the standing doctrine requires that there be (1) "a real controversy between the parties" that (2) "will be actually determined by the judicial declaration sought." Austin Nursing Ctr, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Nootsie, 925 S.W.2d at 662 (citing Tex. Ass'n of Bus., 852 S.W.2d at 446). Without standing, a court lacks subject matter jurisdiction to hear the case. Tex. Ass'n of Bus., 852 S.W.2d at 443. The petition is construed in favor of the plaintiffs and the entire record is reviewed to determine if any evidence supports standing. Id. at 445-46; Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 258 (Tex. App. B San Antonio 1999, pet. denied).
A plaintiff has standing when it is personally aggrieved, having sustained an injury such that it has a personal stake in the litigation. See Nootsie, 925 S.W.2d at 661; see also M.D. Anderson, 52 S.W.3d at 708. The plaintiff must also be "properly situated to be entitled to [a] judicial determination." Lovato, 171 S.W.3d at 849 (citing 13 CHARLES ALAN WRIGHT, ARTHUR R MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D' 3531, at 338-39 (2d ed. 1984)).
IV. Analysis
A. The Procedural Questions
Hess and Chevron, using different procedural mechanisms, raised challenges to Brooks's standing. Hess and Chevron each contend that Brooks has no standing because a claim of injury to land is personal and belongs to the owner of the land at the time of injury, absent an express assignment of that claim. Brooks asserts that Chevron and Hess should have been required to seek relief through summary judgment proceedings, initiated only after adequate discovery had taken place. Brooks argues that it was error for the trial court to grant Hess's plea to the jurisdiction and Chevron's special exception and motion to dismiss.
Hess and Chevron rely upon the following, in addition to other case precedence: Vann v. Bowie Sewerage Co., Inc., 90 S.W.2d 561, 562 (Tex. 1936); Cook v. Exxon, 145 S.W.3d 776, 780-82 (Tex. App. B Texarkana 2004, no pet.); Denman v. Citgo Pipeline Co., 123 S.W.3d 728, 731-34 (Tex. App. B Texarkana 2004, no pet.); and Senn v. Texaco, 555 S.W.2d 222, 225-27 (Tex. App.B Tyler 2002, pet. Denied).
Because an objection to standing cannot be waived, the form by which standing is raised is usually not important. Drilltec Techs, v. Remp., 64 S.W.3d 212, 214 (Tex. App. B Houston [14th Dist. ] 2001, no pet.). Several different means have been used, including the following: (1) plea to the jurisdiction, see Bland Indep. Sch. Dist., 34 S.W.3d at 554; (2) motion for summary judgment, see Bell v. Moores, 832 S.W.2d 749, 752 (Tex. App. B Houston [14th Dist.] 1992, writ denied); (3) special exception, see Wingate v. Hajdik, 795 S.W.2d 717, 720 (Tex. 1990); (4) objection to capacity, see El T. Mexican Rests., Inc. v. Bacon, 921 S.W.2d 247, 250 (Tex. App. B Houston [1st Dist] 1995, writ denied); and (5) on the court's own motion, see Tex. Ass'n of Bus., 852 S.W.2d at 443.
1. The Plea to the Jurisdiction
A plea to the jurisdiction is a procedural mechanism by which a party defeats a cause of action without regard to whether the claim has merit. Bland Indep. Sch. Dist., 343 S.W.3d at 554. The plea challenges the court's power to determine the subject matter of the controversy. In re Brilliant, 86 S.W.3d 680, 682 (Tex. App. B El Paso 2002, no pet.); Axtell v. Univ. of Tex. 69 S.W.3d 261, 263 (Tex. App. B Austin 2002, no pet); Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 658 (Tex. App. B Waco 2000, pet. denied).
The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. Miranda, 133 S.W.3d at 226 (citing State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); Austin & N.W.R Co. v. Cluck, 77 S.W. 403, 405 (Tex. 1903)). A plea to the jurisdiction is therefore a proper means by which to challenge a party's lack of standing. See M.D. Anderson, 52 S.W.3d at 710-11.
Where, as here, a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. (citing Tex. Ass'n of Bus., 852 S.W.2d at 446). We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). However, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id.
Any evidence considered by the court should be limited to what is relevant to the jurisdictional issue; the court is to avoid considering evidence that goes to the merits. Miranda, 133 S.W.3d at 227-28; Bland, 34 S.W.3d at 444; Harris County v. Progressive Nat'l Bank, 93 S.W.3d 381, 383 (Tex. App. B Houston [14th Dist] 2002, pet. denied). Where the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228.
The scheduling of a hearing on a plea to the jurisdiction is left to the discretion of the trial court, which is in the best position to evaluate the appropriate time frame for hearing a plea in any particular case. Id. at 229. Whether a trial court abused its discretion depends on whether the trial court acted without reference to any guiding rules or principles, in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.
The procedure for addressing a plea to the jurisdiction does not dramatically differ from that outlined in Texas Rule of Civil Procedure 120a governing special appearances. TEX. R. CIV P. 120a; Miranda, 133 S.W.3d at 229. Rule 120a allows the trial court to order a continuance and allow time for discovery if the development of the case requires it. Nothing prevents a trial court from doing the same with a plea to the jurisdiction where evidence is necessary. Miranda, 133 S.W.3d at 229. The Texas civil procedural scheme entrusts many scheduling and procedural issues to the sound discretion of the trial court. Id. Additional time or discovery may be permitted upon a showing of sufficient cause, and the court's ruling on such a motion is reviewed for an abuse of discretion. Id. (citing TEX. R CIV P166a(g), 247, 251, 252).
In the matter before us, the challenge to the parties' standing was raised based upon the petition's complaint of damage and contamination to the land occurring long before Brooks's acquisition of the properties. In fact, one of Brooks's principal complaints is that Hess and Chevron concealed damage, inflicted during their tenure on the land so many years earlier, until it was finally discovered by Brooks in 2003. The pleadings set forth the years in which appellants acquired their properties.
We conclude that Hess could properly challenge the standing of Brooks through a plea to the jurisdiction. Hess did so based on the pleadings, arguing that they affirmatively negated subject matter jurisdiction based on the absence of standing. We conclude that the trial court did not abuse its discretion in determining that no additional time for discovery was necessary in order to properly evaluate the standing issue as it was raised.
2. The Special Exception and Motion to Dismiss
Instead of a plea to the jurisdiction, Chevron filed a special exception to Brooks's petition, along with a motion to dismiss. The trial court similarly has wide discretion in ruling on special exceptions. LaRue v. Gene Screen, Inc., 957 S.W.2d 958, 961 (Tex. App. B Beaumont 1997, pet. denied); City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773, 783 (Tex. App. B Dallas 1992, writ denied). A trial court generally is not to dismiss a case without first giving the non-excepting party an opportunity to amend its pleadings. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Marts v. Transp. Ins. Co., 111 S.W.3d 699, 706 (Tex. App. B Fort Worth 2003, pet. denied). However, the court is not required to give the party an opportunity to amend if the pleading defect is the type that cannot be cured by amendment. Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex. App. B Corpus Christi2002, pet. denied).
Here, Brooks asserted that since they tiled a Third Amended Petition subsequent to the filing of the special exception, the special exception was moot. However, the amended petition changed none of the facts and effected no cure of the issues related to standing as raised by Hess and Chevron. Brooks's argument focused on the case as being "too new," therefore requiring additional discovery. Chevron filed an amended special exception and motion to dismiss, as well as a reply to Brooks's response thereto. The hearing on the special exception took place after the filing of the amended petition, and an additional hearing was held in conjunction with the motion for reconsideration. We also note that the question of standing being a fundamental component of subject matter jurisdiction, may be raised at any time, and even sua sponte by the trial court. Drilltec, 64 S.W.3d at 214; Tex. Ass'n of Bus., 852 S.W.2d at 443.
Where the trial court concludes that the pleading defect is the type that cannot be cured by amendment, it is not required to provide an additional opportunity to amend. Mowbray, 76 S.W.3d at 678. We have already concluded that additional discovery is not required in such circumstances.
Although Brooks argues that the procedures followed failed to provide him with the safeguards of a motion for summary judgment, including sufficient intervening time, the record does not support this contention. Hess filed its plea to the jurisdiction on March 5, 2005. The hearing was held on March 29, 2004, twenty-four days later. Chevron similarly raised the standing issue in its filings of April 16, May 3, and June 17, 2004; the hearing on Chevron's motion was not held until June 21, 2004. Rulings on these motions did not issue until June 28, 2004. Brooks filed a motion for reconsideration in July 2004; a hearing on that motion was held on November 8, 2004. The trial court did not engage in a summary proceeding that failed to provide Brooks with adequate time or safeguards.
When reviewing a dismissal based upon special exceptions, we accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the respondent's pleadings. See Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994). The plaintiff must allege facts that affirmatively demonstrate his standing and the court's jurisdiction to hear the case. Amerada Hess Corp. v. Garza, 973 S.W.2d 667, 680-81 (Tex. App. B Corpus Christi 1996), writ dism'd, 979 S.W.2d 318 (Tex. 1998). Although we construe the pleadings in favor of the plaintiff and look to his intent, if the plaintiff clearly lacks standing, the trial court has no jurisdiction and must dismiss the cause of action. Mestiza v. DeLeon, 8 S.W.3d 770, 773 (Tex. App. B Corpus Christi 1999, no pet.) (citing Texas Ass'n of Bus., 852 S.W.2d at 445-46; In re Morales, 968 S.W.2d 508, 511 (Tex. App. B Corpus Christi 1998, no pet.)).
We therefore conclude that the trial court did not abuse its discretion and properly addressed the issue of standing through special exception and motion to dismiss. We overrule Brooks's first issue on appeal.
B. Standing by Virtue of Injury
Brooks contends that standing arises because, as present owners of the residential properties, they are the "only landowners in the chain of title that have suffered an injury." We agree that to have standing a plaintiff must have been personally aggrieved, having sustained an injury such that it has a personal stake in the litigation. See Nootsie, 925 S.W.2d at 661; see also M.D. Anderson, 52 S.W.3d at 708. However, the inquiry does not end there; that plaintiff must also be "properly situated to be entitled to [a] judicial determination." Lovato, 171 S.W.3d at 849.
1. Ownership at the Time of Injury
Texas case law is consistent in determining that
Where injury to land results ... the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to effect the land. In legal contemplation the injury to the land occurs at that time.Vann v. Bowie Sewerage Co., 90 S.W.2d 561, 562 (Tex. 1936) (addressing injury arising from a nuisance). "The right to sue for the injury is a personal right that belongs to the person who owns the property at the time of the injury." Exxon Corp. v. Fluff, 94 S.W.3d 22, 27 (Tex. App. B Tyler 2002, pet. denied); see Gorelick v. Texas, 572 F.Supp. 301, 306 (E.D. Tex. 1983); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex. Civ. App B Austin 1980, writ refd are.) ("A cause of action for injury to real property accrues when the injury is committed."); City of Dallas v. Winans, 262 S.W.2d 256, 259 (Tex. Civ. App.B Dallas 1953, no writ); Williams v. State, 177 S.W.2d 106, 109 (Tex. Civ. App. B Waco 1943, writ refd). Clearly, as a matter of law, the cause of action arises at the time of the injury to the land. Pluff, 94 S.W.2d at 27.
Chevron owned the land prior to 1979 and 1981; Hess leased the land for a period ending in 1974. Alleged injury to the land from pollution or contaminants generated by oil and gas facilities or activities occurred no later than 1981. This contention is undisputed and is also apparent from Brooks's petition. It is also clear from Brooks's petition that none of the appellants owned any of the land in question prior to 1996. Therefore, no appellant was an owner of the land at the time of the injury.
We reject the contention that standing arises solely based upon the fact that the Brooks have sustained an injury. Standing determines the ability to bring any cause of action; standing is therefore not the result of the type of claim brought, nuisance or otherwise. We overrule Brooks's second issue on appeal.
Brooks has no standing to assert a nuisance claim for damage done to property by Chevron (or its lessee) while Chevron remained as owner of the property:
At the time Mobil operated the gas station and releases of oil inflicted harm to the property, Mobil owned the property. Thus, Mobil's operation of the gas station caused harm to property of its own, not property of another. The site became property of WHRT only after the contamination, the harm, had occurred. No matter how viewed, therefore, Mobil can not be accused of having caused harm to the property of another because of release of oil on its own property resulting from its operation of a gas station.See Jones v. Texaco, Inc., 945 F.Supp. 1037, 1051 (S.D. Tex. 1996). Brooks attempts to distinguish the present situation by urging nuisance adversely impacting quality of life by injury to the "common" areas of the subdivision or to neighboring properties. These homes are in a general subdivision. While recreational areas may be provided for the benefit of the residents, there is no common ownership such as that arising in the context of condominium ownership. Cf. Myers v. Cuevas, 119 S.W.3d 830, 832-33 (Tex. App.B San Antonio 2003, no pet.). A party has no justiciable interest and no standing to bring claims for damages to property it does not own. See, e.g., Graves v. Deihl, 958 S.W.2d 468, 472 (Tex. App.B Houston [14th Dist. ] 1997, no writ). Such an interest arises either through ownership, Fort Worth & Rio Grande Ry. v. Glenn, 80 S.W. 992, 993-94 (Tex. 1904), through right of occupancy as a tenant, Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 n.2 (Tex. 2004), or through ownership of an easement, Freedman v. Briarcroft Prop. Owners, 776 S.W.2d 212, 215-16 (Tex. App.B Houston [14th Dist.] 1989, writ denied). Regardless of whether equitable interests in those recreational areas could be asserted (an argument not raised by Brooks), Brooks fails to overcome the fact that injury to all the land in question occurred long prior to their acquisition of any legal or equitable interests. Books also urges that they are entitled to sue in nuisance for damages to properties of some of the appellants that were not formerly owned by Chevron, but which were allegedly contaminated by Chevron's or Hess's activities on Chevron's nearby land. This argument similarly fails to address that standing inures to the owner of the property at the time of the injury. Even if an exception exists where the injury is inherently undiscoverable, the record reflects Brooks's predecessor in title clearly had notice and information relating to possible contamination of the properties and indeed worked on remediation issues. There is no evidence of assignment of such a cause of action to Brooks.
2. The Exception Provided by Express Assignment
Texas law provides an exception of express assignment, by which an individual who does not own the land at the time of injury may still have standing:
A subsequent purchaser cannot recover for an injury committed before his purchase absent an express provision in the deed, or as here an assignment, granting him that power. To recover on an assigned cause of action, the party claiming the assigned right must prove a cause of action existed that was capable of assignment and the cause was in fact assigned to the party seeking recovery.Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex. App. B San Antonio 2004, no pet.) (citations omitted). A purchaser of real property cannot recover for injury to the property committed before his purchase absent an express provision in a deed or an assignment granting him that power. Id. The record reflects that there are no express assignments to Brooks of any causes of action relating to the land.
Damages for personal injuries may arise independently of any indicia of ownership. See Schneider, 147 S.W.3d at 269 n.5 (citing Vestal v. Gulf Oil Corp., 235 S.W.2d 440, 441-42 (Tex. 1951)). Nonetheless, symptoms of discomfort or loss of enjoyment are not personal injury damages. Vestal, 235 S.W.2d at 441-42. Brooks's petition claims damages for diminished property values. Damages for mental anguish are referenced only in the section of the petition dealing with claims brought under the DTPA No DTPA claims are brought against either Chevron or Hess. Therefore, we need not address this concern; nor is it raised by either party on appeal.
a. The Alternative of the General Warranty Deed
Brooks therefore argues that such assignments can arise by virtue of the general warranty deeds that transferred predecessors' interests in the land. However, a deed without the requisite express language is insufficient to effect a transfer of a vendor's claim for damages. Vann, 90 S.W.2d at 562. Brooks's attempt to draw a distinction between the deed in issue in Vann and the general warranty deeds involved in this case is unavailing.
It is fundamental that a party cannot transfer more interest than it possesses; "no one can transfer to another a greater or more right than he has." Herrington v. Williams, 31 Tex. 448, 463 (Tex. 1868), overruled on other grounds, Wilson v. Zeigler, 44 Tex. 657, 659 (Tex. 1876). Additionally, an accrued cause of action for damages vested in the appropriate predecessor in title is not extinguished simply by the subsequent conveyance of the subject property. In Vann, appellants sued to recover damages for pollution of a stream. Vann, 90 S.W.2d at 561. The court noted the cause of action for the pollution had first accrued while the appellant's predecessor owned the property. Because the deed conveying the land did not transfer the cause of action, it remained vested in the vendor. Id. at 562-563.
Here, there was a series of owners between Chevron and Brooks; however, there is no evidence of any assignments of causes of action from either Chevron or its purchaser to any of the predecessors in title, including to the grantees who transferred their property interests to Brooks. There are no assignments to Brooks. Consequently, Brooks relies upon the language of the warranty deeds. However, the Texas Supreme Court has determined that the language relied upon by Brooks does not constitute an express assignment or reservation of a cause of action. In particular, Richey v. Stop N Go Markets of Tex., 654 S.W.2d 430 (Tex. 1983), involved a deed containing the same language: "together with all and singular the rights and appurtenances thereto in anywise belonging unto the said grantee." Id. at 431. Instead of concluding this language was sufficient to constitute an assignment, the supreme court reiterated that the cause of action is personal to the owner of the property at the time of the breach or damage; no cause of action transfers to a subsequent leaseholder (or owner) absent an express assignment. Id. at 432.
Brooks attempts to distinguish Richey v. Stop N Go Markets of Tex., 654 S.W.2d 430, 431 (Tex. 1983) by arguing that in Richey, the lawsuit was pending at the time of the conveyance, whereas in this matter it was not. See id. Such a distinction is irrelevant to a determination of whether or not there was an express assignment of a cause of action.
b. The Alternative of Implied or Express Covenants
Brooks next argues that assignments of rights to causes of action for prior damage to the land arise by virtue of implied or express covenants running with the land. Brooks argues that pursuant to rights-of-way, easements, and/or lease agreements for operations on the property, Hess and Chevron had implied duties surviving to the benefit of Brooks not to negligently or intentionally damage surface soils, subsurface strata, or underlying groundwater. He urges additional discovery of these various documents is relevant to standing and is required.
We reiterate that the right to sue for injury to real property is a personal right that belongs to the person owning the property at the time of injury. Fluff, 94 S.W.3d at 26-27'. Because it is a personal right, it does not pass to a subsequent purchaser and it does not run with the land absent an express assignment of the cause of action to the subsequent purchaser. Id. at 27; Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex. App.B Dallas 1986, writ refd are.), overruled in part on other grounds, Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 281-82 (Tex. 2004).
The fact that Chevron or Hess at one time operated with easements, rights-of-way, or leases either between them or with other entities does not alter this basic principle. No case law has been presented and we find none to suggest that duties that may be owed by and between parties to such easements, rights-of-way, or leases inure to the benefit of subsequent purchasers, absent express language making such provision. In Texas, a covenant runs with the land if (1) it touches and concerns the land, (2) relates to a thing in existence or specifically binds the parties and their assigns, (3) is intended by the original parties to run with the land, and (4) the successor to the burden has notice. Inwood North Homeowners' Ass'n v. Harris, 736 S.W.2d 632, 635 (Tex. 1987). Covenants running with the land bind the heirs and assigns of the covenanting parties, while personal covenants do not. See Tarrant Appraisal Dist. v. Colonial Country Club, 767 S.W.2d 230, 235 (Tex. App. B Fort Worth 1989, writ denied). A covenant to pay maintenance assessments in a subdivision touches and concerns the land where, as in Inwood, the declaration of covenants specifically stated that the covenants would run with the land and would bind all parties acquiring rights to the property. Inwood, 736 S.W.2d at 633. However, if the covenant is personal, it does not run with the land; this determination is made by looking to the intent of the parties. See Neiman-Marcus Co. v. Hexter, 412 S.W.2d 915, 919 (Tex. Civ. App.B Dallas 1967, writ refd nr.e.) There is no evidence of any such intent in this matter. The only fact in evidence is that Hess abandoned the property back to Chevron at the expiration of its lease. Brooks is not an assignee of either Chevron or Hess.
We need not and do not address whether the State of Texas has authority to enforce statutes and regulations relating to clean-up of such properties, although the parties to this dispute indicate that the Railroad Commission has undertaken enforcement inquiries and that Chevron and Hess are cooperating therewith. We do note Brooks's argument in their brief that appellants were entitled to sue Chevron and Hess pursuant to sections 85.321 and 85.322 of the Texas Natural Resource Code. TEX NAT. RES.CODE ANN." 85.321, .322 (Vernon 2001). No such cause of action or argument was ever raised as part of Brooks's pleadings before the trial court. A party waives a basis for recovery that is not raised in the trial court below and is raised for the first time on appeal. See TEX R. APP. P. 33.1(a); Swink v. Alesi, 999 S.W.2d 107, 110 (Tex. App.B Houston [14th Dist.] 1999, no pet.).
The only manner in which Brooks could have acquired such an interest is by express assignment from their predecessor in interest, and, as we have noted, no such assignments exist in the deeds or otherwise. Cook v. Exxon, 145 S.W.3d 776, 780-82 (Tex. App. B Texarkana 2004, no pet); Denman v. Citgo Pipeline Co., 123 S.W.3d 728, 731-34 (Tex. App. B Texarkana 2004, no pet); Pluff, 94 S.W.3d at 26-28; Senn v. Texaco, 555 S.W.2d 222, 225-27 (Tex. App.B Tyler 2002, pet. denied); see Jones v. Texaco, Inc., 945 F.Supp. 1037, 1041-42 (S.D. Tex. 1996); Koehn v. Ayers, 26 F.Supp. 953, 957 (S.D. Tex. 1998) (each applying Texas law). We conclude that no obligation under any lease, right of way, or easement that may have existed inures to the benefit of Brooks. We overrule Brooks's third issue.
3. Fraudulent Concealment, the Discovery Rule, and Conspiracy
Brooks argues that by virtue of Hess's and Chevron's "common law fraud by the concealment of and/or failure to disclose material facts," it was not possible to discover the contamination in the land prior to 2003. Brooks argues that (1) once Hess and Chevron became aware of the fact that the property was being developed for residential use, they had a duty to warn and disclose the nature and extent of contamination to Brooks, (2) because they did not do so the causes of action asserted in the petition did not accrue until 2003, and (3) Brooks therefore has standing.
Brooks also urges that Chevron participated in a civil conspiracy to fraudulently conceal this information.
Fraud in and of itself prevents running of the statute of limitations. S.V. v. RV., 933 S.W.2d 1, 5 (Tex. 1996) (citing Ruebeck v. Hunt, 176 S.W.2d 738, 740 (Tex. 1943); Port Arthur Rice Milling Co. v. Beaumont Rce Mills, 143 S.W. 926, 929 (Tex. 1912)). Fraudulent concealment has the same effect. Id. (citing Borderlon v. Peck, 661 S.W.2d 907, 908-909 (Tex. 1983); Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex. 1979); Nichols v. Smith, 507 S.W.2d 518, 519-520 (Tex. 1974)). Similarly, the discovery rule applies to defer the running of limitations when it is otherwise difficult for the injured party to learn of the wrongful act. Id.
Accrual of a cause of action is deferred in two types of cases. In one type, those involving allegations of fraud or fraudulent concealment, accrual is deferred because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run. The other type, in which the discovery rule applies, comprises those cases in which "the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable."Id. at 6. Nevertheless, it is axiomatic that before one may hope to defer running of the statute of limitations, one must have standing to raise the cause of action in issue.
Neither fraudulent concealment nor the discovery rule operate to vest a cause of action in an individual. 'Fraudulent concealment [like the discovery rule] merely defers the statute of limitations until the plaintiff learns or in the exercise of reasonable diligence should have learned of the facts that give rise to its cause of action." Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 891 (Tex. App. B Austin 1997, pet. denied) (emphasis added); see Vial v. Gas Solutions, Ltd., 2006 Tex.App. LEXIS 1344, at *8, *12, *18, *26 (Tex. App. B Texarkana Feb. 17, 2006) (designated as opinion) (noting distinction between the questions of standing and tolling the statute of limitations). Importantly,
[T]he question of limitations cannot arise unless the plaintiff has standing to come into court. . . . The discovery rule cannot work to transfer the ownership of a cause of action from one person to another simply because the second person claims to have discovered the injury. The rule stated in Vann and Lay is simple, straightforward, and easily applied. It lends certainty to transactions involving real property by producing clearly defined rights and liabilities. We see no reason to riddle it with an exception engrafted from an entirely unrelated area of law.Senn, 55 S.W.3d at 225-26. We further note that Chevron did disclose to its purchaser the existence of oil and gas operations on the land. Texas law provides that such disclosure is sufficient and Chevron was not required to additionally disclose "alleged contamination" on the premises. See Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 94 (Tex. App.B Houston [14th Dist] 1998, no pet.) (finding that disclosure of the presence of oil pits was adequate). 'We find no authority to substantiate appellants' contention that Exxon had a duty to give notice of the toxic contamination that could result from the earthen pits, and appellants cite none." Id. (emphasis in original). Actual notice to the purchaser of the presence of oil and gas operations is sufficient. Id.
Brooks does not obtain standing based upon either the assertion of fraudulent concealment or the discovery rule. The allegations of civil conspiracy do not alter this conclusion. For the reasons set forth above, no claim for civil conspiracy inures to Brooks. Additionally, civil conspiracy is a derivative tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Where there is no standing to pursue any underlying tort, there is no standing to sue for conspiracy. Id. We overrule Brooks's fourth issue on appeal.
V. Conclusion
Having overruled Brooks's issues on appeal, we affirm the judgment of the trial court.