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.

When Wells Fargo began a foreclosure process on a home-equity loan, this homeowner fought by back filing what the Court calls a “separate and original proceeding” (a phrase that will come into play in its reasoning). In that separate suit, the homeowners sought injunctive relief, asserted fraud claims, and sought relief under the UDJA. Wells Fargo, in response, sought its own declaration and asked for attorney’s fees under the UDJA.

The trial court ultimately ruled for Wells Fargo and awarded it attorney’s fees under the UDJA. The homeowners appealed, arguing that Wells Fargo did not assert a valid declaratory claim. The court of appeals agreed — but to strike down the fees, it had to go a step further. Either side can recover under the UDJA, so to reverse the award, the court of appeals also had to determine whether the homeowners had a valid UDJA claim. It concluded that neither side had a valid UDJA claim and, thus, that there was no basis for a fee award.

The Supreme Court reversed. On the procedural question, it ruled that the homeowners' challenge to the award was fatally incomplete. Because they had not challenged whether his own UDJA claim was valid, the court of appeals could not reach that question sua sponte. And, thus, the basis for the court of appeals’s ruling was invalid.

That led to a constitutional question: Can a lender recover attorney’s fees in this situation, consistent with Texas’s constitutional provisions about home-equity lending?

The Court held that the key was that this was a “separate and original proceeding.” Rather than defending the lender’s original suit (in which, the Court suggests, no fees would have been available), the homeowners filed this separate proceeding.

This is a negligent-spoliation case. After a contested hearing before trial, the district court ordered that a spoliation instruction would be given to the jury. When it came time to approve the jury charge, however, the defendant did not renew this objection. The court of appeals held that this waived any complaint about spoliation.

The Supreme Court disagreed. It held that the objections made before trial were clear enough, and clearly enough ruled upon, that the question of whether some spoliation question was proper had been adequately preserved. (It noted that there was no challenge here to the precise wording of the instruction, a challenge that might have required a different type of objection or ruling.)

The plaintiff contends that a car accident was caused by the headlights of a police car, which was at the time being moved and was facing oncoming traffic. The County invoked sovereign immunity. The question on appeal is whether this situation withs within the “use of property” exception in the Texas Tort Claims Act.

The Supreme Court held that it does fit the exception and, thus, that a waiver of sovereign immunity had been pleaded. The key fact turned out to be that, in this case, the police car was being operated (“relocat[ed]”) at the time of the accident.

The County argued that an accident caused by headlights alone could not fit within the waiver, citing a Houston case from 2007 in which that court found immunity against an accident claimed to have been caused by a parked police car with its emergency lights activated. Texas DPS v. Grisham, 232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The driver in that case claimed the accident was caused by the fact that they had to change lanes to comply with state law. That court of appeals, however, held that the police car in question was not in “use” merely by virtue of being parked with its emergency lights on.

In this case, the Supreme Court was expressly careful not to either approve or disapprove the holding of Grisham. (“Although we express no opinion as to the substance of the Grisham panel’s analysis, we decline to follow its reasoning here.”). That may be a question for another day.

To decide this case, the Supreme Court chose merely to distinguish Grisham, noting that the police car here was unquestioningly being operated at the time. This was not a parked car, it was a car in motion.

The Court also rejected the County’s argument that the accident was caused by the “illegal conduct” of the driver, an illegality based on the Transportation Code requirement to change lanes or reduce speed when approaching a parked emergency vehicle. This car, it noted, was not parked. And the ultimate effect of such a finding would, the Court noted, be merely to reduce proportionate responsibility; there is not a general bar to suit based on “illegal conduct.”