Opinion
NO. 09-11-00190-CV
09-27-2012
ERGON ENERGY PARTNERS, L.P. AND ERGON EXPLORATION, INC., Appellants v. ROBERT SHEFFIELD, Appellee
On Appeal from the 88th District Court
Tyler County, Texas
Trial Cause No. 19839
MEMORANDUM OPINION
In this appeal, we address a gas well operator's argument challenging a judgment on the basis that the evidence is legally insufficient to support two of the jury's damage awards. The jury awarded damages based on three separate issues. Two of the awards are challenged on appeal, one compensating the surface owner for the projected expenses he would incur in remediating a temporary pit, the other awarding the surface owner punitive damages.
Following a jury trial, Robert Sheffield, the landowner, obtained a judgment against Ergon, the operator under a mineral lease covering Sheffield's tract. While drilling the well, Ergon used approximately five acres of Sheffield's property as a drill-site. On part of the site, Ergon dug a temporary pit to store liquids and mud that were used in drilling the well. After completing the well, Ergon's contractors removed the liquids from the pit, and then covered it with the soil used in constructing it. At the conclusion of the trial, the jury awarded Sheffield actual and punitive damages totaling more than four million dollars.
Ergon Energy Partners, L.P. (EEP) is the operator for the well located on Sheffield's property. Ergon Exploration, Inc. is the general partner that manages EEP. EEP acquired its interest in the minerals for the tract under a participation agreement that it made with the owner of the tract's minerals. Because the parties' briefs refer to both entities as Ergon, we do so as well.
Ergon raises seven issues in its appeal. Four of Ergon's issues challenge the legal and factual sufficiency of the evidence supporting several of the jury's findings; the other three make various claims about charge error. Ergon's issues contend:
(1) the evidence is legally and factually insufficient to show that its operations resulted in any contamination to Sheffield's property;
(2) the evidence is legally and factually insufficient to support the amount the jury awarded to remediate Sheffield's property;
(3) the testimony of Sheffield's expert, which addressed the expenses that might be incurred to remediate the pit, is legally insufficient to support the jury's damage award;
(4) the evidence is legally and factually insufficient to support the jury's punitive damage award;
(5) the trial court erred in submitting the negligence issue based on a cost-of-repair measure of damages, rather than using a diminished market-value measure;
(6) the trial court failed to submit an issue to the jury asking whether Ergon was responsible under an agency theory for the conduct of one of its contractors at the site; and
(7) the trial court, over objection, failed to include an instruction in the charge defining the term "contamination."
While on appeal, we received an amicus brief filed by the Southeast Texas Groundwater Conservation District. Although the District was not a party at trial, its brief asserts that we should affirm the trial court's judgment.
After reviewing the evidence, we conclude that the cost projections for remediating Sheffield's property constitute no evidence to prove that the jury's award of remediation damages was shown by the evidence to be reasonable. Therefore, with respect to the jury's award of remediation damages, we reverse and render a take-nothing judgment. Because the punitive damage issue that Sheffield submitted is predicated on the negligence issue, that award is also reversed. Nonetheless, the jury awarded Sheffield $38,500 in damages for Ergon's failing to use due regard for his rights as the surface owner in locating the well, an issue Ergon has not challenged. Because the liability and damage award for that claim is not challenged, we affirm the trial court's judgment for $38,500. However, with respect to the jury's negligence and punitive damage awards, we reverse and render judgment in Ergon's favor.
Background
Since 1973, Sheffield has owned a fifty-five acre tract in Tyler County, Texas, that he farms. Sheffield, however, only owns the surface of the property, as the rights to "all oil, gas and other minerals with rights of ingress, egress and regress" were expressly reserved by one of the tract's prior owners.
In 2004, Ergon purchased an oil and gas lease that covered Sheffield's tract. The following year, Ergon, over Sheffield's objection, decided to locate a drill-site on Sheffield's tract. Ergon used approximately five acres of Sheffield's tract as a drill-site. In 2006, Ergon successfully completed a gas well, the "Longhorn 1." Ergon also built a road located in part on Sheffield's property, and used it to access its drill-site.
In preparing the drill-site, Ergon built a temporary pit to catch and store drilling fluids, shavings, and cuttings from its drilling operations. After completing the well, Ergon hired K&L Contractors, Inc. and Steve Simpson & Associates, Inc. to perform the work required to close the temporary pit. K&L supplied operators, pumps, and construction equipment, while Simpson provided tank-trailers, all of which were used in removing liquids from the pit. After K&L filled tank-trailers with fluids from the Longhorn pit, Simpson hauled the fluids to another Ergon drill-site, not on Sheffield's property, where they were discharged and temporarily stored before their ultimate disposal.
On one of the days that Simpson's trucks were removing pit fluids from the Longhorn site, Sheffield saw and photographed a Simpson tank-trailer "dumping stuff into the pit." Sheffield could not identify the substance that he observed being pumped out of the tank-trailers into the reserve pit on his property. Nevertheless, Sheffield testified that he was concerned about the fluids he saw being discharged into the pit; Sheffield explained the fluids in the Longhorn pit smelled like oil.
Jody Jenkins, one of Simpson's drivers, testified he was present when fluids were pumped from a Simpson tank-trailer into the Longhorn pit. According to Jenkins, a K&L employee told him to bring fluids from Ergon's other drill-site and use the fluids to "stir the mud on the Longhorn." Jenkins explained that the fluids that he pumped out of the tank-trailer and into the Longhorn pit were fluids that were previously pumped into tank-trailers from the Longhorn pit. According to Jenkins, he never told Ergon that a K&L employee asked him to bring fluids from another location to "stir the mud" in the Longhorn pit.
After the fluids from the Longhorn pit were removed, K&L filled the pit with the dirt from the pit's walls. Sheffield's daily diary, admitted into evidence during the trial, reflects that the Longhorn pit was covered by October 4, 2006. Shortly after the pit was covered, Sheffield wrote that it "[l]ooks good from the outside, but I know what is inside."
Sheffield contacted Ergon, advising Ergon that he had seen fluids being pumped into the Longhorn pit. Ergon responded by letter, advising Sheffield that it "was not aware that the contractor was going to haul some water onto location until after the fact." Approximately one week after seeing fluid discharged into the Longhorn pit, Sheffield filed an amended complaint against Ergon, alleging that Ergon, through its agents and contractors, "dumped toxic solid waste products into the [p]it." Concerned about whether his property might be contaminated, Sheffield then contacted various governmental and quasi-governmental agencies, asking them to determine what substances remained in the former pit. Sheffield explained that an official with the Texas Commission on Environmental Quality (TCEQ) suggested that he hire someone to obtain samples in the area of the former pit to "find out what they put out there."
Sheffield's original petition, filed in January 2006, contains three complaints: (1) that Ergon placed the well in a way that caused the greatest interference with Sheffield's use of the property, (2) that Ergon used Sheffield's topsoil to construct the drill-site, and (3) that Ergon surveyed and prepared the well's location before it received a permit from the Texas Railroad Commission.
Subsequently, Sheffield contacted Thomas "Andy" Elms, a licensed professional geoscientist and owner of Apollo Environmental Strategies, Inc. After meeting with Sheffield, Elms agreed "to identify the material, its location and what was in [the pit], for the purpose of removing it." In April 2007, Apollo drilled ten test holes to define the location of the former pit and to assess whether the pit was contaminated. Of the test holes, three contained a black sludge material. Apollo installed temporary monitoring wells in the three holes that were found to contain black sludge.
Shortly after obtaining soil samples, Apollo had them analyzed by a lab. One of the lab reports that Apollo received revealed the presence of benzene at a level sufficient to classify the sample as industrial waste.See generally 30 Tex. Admin. Code §§ 335.505-.507 (2011) (TCEQ regulations governing the determination of waste classes). Additionally, in late April 2007, Apollo took groundwater samples from the three monitoring wells. The April water samples did not show benzene present at levels exceeding TCEQ's protective concentration standards. However, a lab test on the April water samples indicates the sample contains aluminum, arsenic, barium, chromium, and lead at levels that exceed TCEQ's protective concentration standards.
The baseline levels that Apollo's summary references are based on standards in a list published by the Texas Commission on Environmental Quality (TCEQ). See generally 30 Tex. Admin. Code §§ 350.01-.135 (2011) (TCEQ Texas Risk Reduction Program) (citing current chapter because Apollo's summary, which was admitted as an exhibit at trial, does not reference a precise TCEQ table used by Apollo's lab. Copies of the tables that are referenced by the lab reports are also not among the exhibits admitted into evidence). In its brief, Ergon has not complained that the quantitative levels referenced in TCEQ's Risk Reduction Program are inapplicable to the Longhorn pit or that they are not relevant in evaluating whether the Longhorn pit was contaminated.
In late August 2007, Apollo obtained additional test samples in and around the former Longhorn pit. It split these samples with Ergon's environmental consultant, Environmental Resources Management (ERM). According to Elms, Apollo's lab determined that water from three of the monitoring wells at the site contained benzene. However, Apollo's lab results on the August split-samples were not entirely consistent with the samples tested by the lab Ergon used. In one of the August split-samples, Ergon's lab found lower benzene concentrations in the water from one of the monitoring wells than Apollo's lab found for that split-sample; on another of the split-samples, Apollo's lab detected benzene but Ergon's lab did not.
According to Elms, the benzene results from the labs were due to "the oily sludge that was left behind in the pit." Further, Elms testified that, based on his visits to the Longhorn site, he observed "no other apparent sources" for benzene contamination. Elms testified that the benzene present in the samples originated from petroleum hydrocarbons that could be seen in the soil boring samples collected at the site. Elms also explained that drilling mud, which was one of the materials that Ergon placed in the reserve pit during drilling, did not contain benzene. However, Elms explained that benzene is present in condensate, that condensate can be produced by a gas well, and that drilling mud can become contaminated with benzene if it contacts the condensate produced by a well. The production records for the Longhorn well reflect that the well produces gas condensate.
The TCEQ defines "Condensate" as "[l]iquids that result from the cooling and/or pressure changes of produced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner, they are no longer considered condensates." 30 Tex. Admin. Code § 101.1(19) (2011) (TCEQ Definitions). We assume that Elms's statement about condensate was intended to refer to the liquid hydrocarbons sometimes produced by natural gas wells.
Although Apollo's sampling activities ended in 2007, ERM gathered additional soil and water samples for testing in 2010, the year the trial occurred. In March 2010, ERM collected water samples; the lab reports from these tests show either non-detectable levels of benzene or that benzene was present but at levels below TCEQ standards. In September 2010, ERM collected additional soil samples. Robert Perry, a professional geologist employed by ERM, explained at trial that Ergon's sampling data shows that excavation at the site is unnecessary. According to Perry, "[n]one of the soil is above State standards."
This statement appears inconsistent with one of the soil tests received by ERM on the 2010 soil samples, which reported a benzene level of .028 mg/Kg, which is above the .026 TCEQ standard that Robert Perry acknowledged applied elsewhere in his testimony.
With respect to the damages recoverable for Ergon's negligence, the jury was asked to determine the diminished market value of Sheffield's property and to determine the reasonable sum required to remediate the property. Only Elms provided the jury with estimates regarding the cost to remediate the Longhorn pit. Also, the jury failed to answer the question asking about the diminished market value of Sheffield's property. Thus, the jury's award on the negligence issue is based solely on remediation estimates.
Elms was the only witness who estimated the cost that Sheffield would incur if he were to remediate the pit. Elms's remediation plan contains numerous variables, each of which has a significant effect on his total estimate. For instance, the cubic yards of soil that Elms expected would be removed ranged from 4,800 to 7,200 cubic yards of excavated soil. Elms then assumed that between one fourth to all of the excavated soil would be tested and classified as Class 1 nonhazardous industrial waste; the remainder he assumed would be tested and classified as Class 2 nonhazardous waste. The record contains no evidence to explain how Elms arrived at these percentages. These assumptions, the volume of soil removed and the volume of the removed soil subsequently classified as Class 1 waste, led to significant differences in the potential total cost of the overall remediation project. The percentage of soil ultimately classified as requiring disposal as Class 1 nonhazardous waste is the most significant of the variables Elms used to project the total cost of the project: for example, depending on the amount of the excavated soil ultimately classified as Class 1 nonhazardous waste, Elms estimated the total costs to remediate the pit would range from $600,000 to $1,400,000.
There are three classifications of nonhazardous solid waste under TCEQ regulations. See generally 30 Tex. Admin. Code § 101.1(49)(A)-(C) (2011) (TCEQ defining Class 1, 2, and 3 industrial solid waste); 30 Tex. Admin. Code §§ 335.505-.507 (2011) (TCEQ defining Class 1, 2, and 3 waste determinations). The presence and concentration of benzene in the soil, as well as the presence and concentration of certain other listed metals and chemicals, are used to determine the waste's classification. See Tex. Admin. Code §§ 335.505-.507.
There are other significant variables in Elms's projection of the cost of the project. For example, Elms's estimate includes a range of potential costs for regulatory planning and reporting, for sampling and analyses, and for backfilling the excavated pit. At trial, Elms added yet another variable to his cost projections, for inflation, to account for the three years since the date he first provided Sheffield with his estimates. According to Elms, an additional ten to fifteen percent should be added to his estimates to account for higher fuel expenses; however, Elms did not identify which of the components of his cost projections included a component for fuel. Also, Elms testified that the jury should add additional expenses for monitoring, an expense not included in his initial cost projections. According to Elms, future monitoring would cost between $12,000 to $15,000 per year.
The charge, with respect to the negligence issue, asked the jury to return a verdict based on two different measures of damages—the first asked the jury to determine the difference in the reasonable market value of Sheffield's property; the second asked the jury to determine the reasonable-and-necessary cost to remediate Sheffield's property. Importantly, the trial court predicated the punitive damages issue on the jury's affirmative answer to the issue on Ergon's negligence. In answering the cluster of issues on Ergon's negligence, the jury found Ergon negligent; found damages, based on a remediation measure, of $1,324,000; found Ergon grossly negligent; and awarded punitive damages of $3,000,001.
The trial court entered a judgment on the jury's award of actual damages, but under Texas law, then reduced the jury's punitive damages award from $3,000,001 to $2,648,000. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (West Supp. 2012) (providing that exemplary damages awarded against a defendant may not exceed the greater of $200,000 or two times the amount of economic damages).
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In a separate cluster of issues, the jury found that Ergon failed to act with due regard for Sheffield's rights as the surface owner in locating the drill-site, awarding damages of $38,500 on that claim.
Standard of Review
Before considering issues asking for a new trial, we first address Ergon's appellate issues which assert that it is entitled to a judgment in its favor. See Lone Star Gas Co. v. R.R. Comm'n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (per curiam); see also Tex. R. App. P. 47.1 (requiring the opinion to address "every issue raised and necessary to final disposition of the appeal"). Ergon's third issue asserts that the evidence is legally insufficient to support the jury's remediation award. Because we conclude that issue three is dispositive of the appeal, we address it first. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam) (noting that, when both legal and factual sufficiency challenges are raised on appeal, the legal sufficiency issues are determined first).
We review issues challenging the sufficiency of the evidence under established standards. Challenges to the legal sufficiency of the evidence are either "no evidence" challenges or "matter of law" challenges, depending on which party has the burden of proof. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988, writ denied). Here, Ergon attacks the legal sufficiency of the evidence supporting one of the jury's damage awards, compensating Sheffield based on the estimated cost of a future remediation of the Longhorn pit. Because Ergon did not have the burden of proof on that issue at trial, to prevail on its legal sufficiency issue, Ergon must show that no evidence supports the jury's finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Christus St. Mary Hosp. v. O'Banion, 227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet denied).
An objective standard is used to evaluate the evidence before a jury in resolving a legal sufficiency issue; if the evidence "would enable reasonable and fair-minded people to reach the verdict under review[,]" it is legally sufficient. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evaluating a legal sufficiency challenge requires an appellate court to "credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id.; see also Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006). We sustain legal sufficiency challenges "when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla." Suberu, 216 S.W.3d at 793. "Evidence does not exceed a scintilla if it is 'so weak as to do no more than create a mere surmise or suspicion' that the fact exists." Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).
Application of Law to Facts
In issue three, Ergon argues that Elms's testimony addressing what it would cost to remediate Sheffield's property is fatally unreliable. The record reflects that Elms presented the jury with a range of projected remediation expenses. While the sensitivity of Elms's projections relate primarily to several of the model's variables, two of the variables affect Elms's projections more, the soil volume that would ultimately be excavated in the project, and the percentage of that soil that subsequently required handling as Class 1 waste.
However, Elms never gave the jury any estimate concerning the likely percentage of the excavated soil that he believed would be classified and handled as Class 1 nonhazardous waste. Nor did Elms state which of his estimates, the higher, the mid- range, or the lower, were more probable. Additionally, Elms did not testify that any of his estimates were reasonable in amount, either as a whole, or as component parts. For example, Elms never stated the amount that is reasonably charged for excavating a cubic yard of soil. Finally, Elms never expressed an opinion that remediation of the site was reasonably necessary. Instead, Elms acknowledged that he did not investigate other admittedly less costly and acceptable solutions, such as biological or chemical attenuation, that could be used to address the contaminates likely buried at the Longhorn pit. He testified he did not do so because Sheffield controlled the scope of his investigation, limiting him to a plan requiring the removal and disposal of soil from the Longhorn pit.
By awarding $1,324,000 in remediation damages, the jury adopted a figure at the upper range of Elms's cost projections. For instance, to arrive at its award, the jury must have believed a very high percentage of the excavated soil would be classified as Class 1 nonhazardous waste. However, the record contains no supporting evidence proving, to a degree of reasonable probability, the number of cubic yards of excavated soil that would likely be classified as Class 1 waste.
To be considered probative evidence, the law requires that the basis of an expert's opinion be revealed to show that the basis of the opinion is supported by evidence. City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009). With respect to the support required of opinion testimony, the Texas Supreme Court has stated:
[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. "[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness."Id. at 818-19 (rejecting expert's opinion regarding chronic exposure to benzene at levels of 160 ppb as having no basis in the record) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)); see also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009) ("Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable.").
The record must contain sufficient data to show that Elms's projection for the total cost of the project represents a reasonable sum for a project of that type. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254-58 (Tex. 2004) (finding expert's damages testimony unreliable because he had insufficient factual basis for his conclusions); Hall v. Hubco, Inc., 292 S.W.3d 22, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (finding expert's damages testimony regarding soil removal and disposal incompetent because he could not accurately determine the cost of removal and disposal). The two primary variables in Elms's estimate, as well as others, lack any supporting evidence.
In McGinty v. Hennen, the Texas Supreme Court recently applied the rule that damages must be proven to be reasonable before an estimate constitutes any evidence of repair costs. 55 Tex. Sup. J. 1090, 2012 Tex. LEXIS 558, at *7 (Tex. June 29, 2012) (per curiam) (noting that neither the plaintiff's damage expert "nor any other witness testified to the reasonableness of the estimated cost"). In McGinty, the Court held: "A party seeking to recover remedial damages must prove that the damages sought are reasonable and necessary." Id. at *4 (citing Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004) (per curiam)). The Court then held that an expert's estimate regarding the cost to repair a house the plaintiff purchased from the defendant, without an explanation of the estimate's reasonableness, was no evidence that the estimate was reasonable. Id. at *7.
Here, like McGinty, the owner's sole evidence consists of an estimate without other evidence explaining the estimate's reasonableness. Without more, the evidence before the jury is not sufficient to prove that any of the cost estimates provided by Elms were reasonable. Compare McGinty, 2012 Tex. LEXIS 558, at **9-10 (rendering judgment where there was no evidence to support the reasonableness of the remedial damages), with Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997) (reversing and remanding where the evidence, though legally insufficient with respect to the entire amount, remained legally sufficient with respect to an amount less than the jury awarded); see also Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 633-36, 645 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (reversing and rendering take nothing judgment on lost profit award where court determined the evidence was legally insufficient to show any amount of lost profits).
The record in the case before us contains no evidence showing that the projected costs of remediating Sheffield's property are reasonable, particularly given the number of variables from which the total estimated range depends. The variables are either unknown, or Elms was not able to make a reasonable estimate based on the investigation he conducted. We conclude that Elms's testimony does not demonstrate that his estimates are reasonable and there is no other evidence to support them. In short, the jury was presented with nothing more than testimony of possible ranges for remediating the Longhorn pit that might be incurred if remediation were to occur.
Because the evidence in this case is wholly insufficient to prove that any of Sheffield's projected remediation costs are reasonable in amount, we are required to reverse and render judgment in Ergon's favor on Sheffield's negligence claim. Accordingly, we reverse and render judgment that Sheffield recover nothing on his negligence claim.
Punitive Damage Award
In its fourth issue, Ergon contends the trial court erred in awarding punitive damages. Texas law provides that the recovery of actual damages is required to receive an award of punitive damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (West 2008); Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 753-54 (Tex. 1984) ("Under Texas law, punitive damages are not recoverable as a general rule in the absence of actual damages.").
In Sheffield's case, the trial court conditioned the punitive damage issue on the negligence issue, so Sheffield's recovery of punitive damages depends on his recovering on his negligence claim. As discussed above, the evidence is legally insufficient to support any jury award on Sheffield's negligence claim. Accordingly, Sheffield cannot recover in this case based on the jury's punitive damage award. See McGinty, 2012 Tex. LEXIS 558, at **1-2, *10 (rendering take nothing judgment because failure of proof on jury's award of actual damages also resulted in rendition of judgment in defendant's favor on the jury's award of punitive damages); Wiese v. Pro Am Services, Inc., 317 S.W.3d 857, 864-65 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (rendering take nothing judgment on punitive damage award where evidence was legally insufficient to support award of actual damages). We reverse the jury's punitive damage finding, and render judgment in Ergon's favor on the jury's award of punitive damages.
Conclusion
We conclude the evidence is legally insufficient to support the jury finding that Sheffield would incur $1,324,000 in remediation expenses, and that Sheffield cannot recover punitive damages because he failed to recover actual damages on his claim of negligence, as the trial court conditioned the punitive damages award on the cluster of issues that addressed Ergon's negligence. We further conclude that the jury's award of $38,500 on Sheffield's lack of due regard claim should be affirmed because it is not challenged. Therefore, (1) we reverse the jury's award of $1,324,000 in remediation damages, and we render judgment that Sheffield recover nothing on his negligence claim; (2) we reverse the jury's award of punitive damages, and we render judgment that Sheffield recover nothing on his claim for gross negligence; and (3) we affirm the judgment in the amount of $38,500 on Sheffield's due regard claim.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
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HOLLIS HORTON
Justice
Before Gaultney, Kreger, and Horton, JJ.
DISSENTING OPINION
I respectfully dissent. The case should be remanded for a new trial.
Ergon should have removed contamination that exceeded state action levels. See E-Z Mart Stores, Inc. v. Ronald Holland's A-Plus Transmission & Auto., Inc., 358 S.W.3d 665, 672 (Tex. App.—San Antonio 2011, pet. denied). Ergon's representative implicitly acknowledged as much in his last answer during his testimony at trial:
Q. Do you believe that the Railroad Commission approves burying benzene? Is that your testimony?Mr. Sheffield is entitled to recover the cost of removal of the contamination to restore the farm to its former condition. See Brazos Elec. Power Coop. v. Taylor, 576 S.W.2d 117, 120 (Tex. Civ. App.—Waco 1978, writ ref'd n.r.e.) (cost of restoring eroded land); see also, generally, E-Z Mart Stores, Inc., 358 S.W.3d at 672; Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 775 (Tex. App.—San Antonio 1999, pet. denied) (removal of contaminants above state action levels).
A. No, sir.
Q. You don't believe there's any benzene down there, do you?
A. I haven't said that.
Q. Well, do you?
A. The test results show that there are some traces of benzene.
Q. And it's in the stuff that was buried?
A. It appears to be.
Q. Do you think the Railroad commission -- just looking at this last document, do you think that they would approve burying benzene?
A. No.
The judgment must be reversed because on this trial record the evidence concerning the wide range of waste disposal costs is too uncertain to support the jury's damage award. The disposal costs vary widely depending on the eventual waste characterization after removal, and on this record that characterization is speculative. But that does not mean there is no evidence to support some of the damages awarded by the jury. The costs of excavation and stockpiling of the soil, segregation of soil classes, and backfilling and compacting with new fill and top soil are the same regardless of the ultimate waste characterization and corresponding disposal costs.
Because sufficient evidence supports some of the damages awarded, a take-nothing judgment should not be rendered. See Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314-15 (Tex. 2006); Minn. Mining & Mfg. Co. v. Nishika, Ltd., 953 S.W.2d 733, 740 (Tex. 1997). In these circumstances, when remittitur is not appropriate, a case should be remanded for a new trial. Guevara, 247 S.W.3d at 670.
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DAVID GAULTNEY
Justice