FPL Farming Ltd. v. Environmental Processing Systems, L.C.--Appeal from 75th District Court of Liberty County

State: Texas

Court: Texas Northern District Court

Docket No: 09-08-00083-CV

Case Date: 10/29/2009

Plaintiff: Crain, Ray

Defendant: Candice C. Smith and Lamm & Smith, P.C.--Appeal from 165th District Court of Harris County

Preview:In The

Court of Appeals Ninth District of Texas at Beaumont
____________________ NO. 09-08-00083-CV ____________________ FPL FARMING LTD., Appellant V. ENVIRONMENTAL PROCESSING SYSTEMS, L.C., Appellee ________________________________________________________________________ On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV71974 ________________________________________________________________________ OPINION Following the jury trial of a trespass case, the trial court rendered judgment on the jury's verdict for the defendant, Environmental Processing Systems, L.C., (EPS). The plaintiff, FPL Farming Ltd. (FPL) claimed that EPS trespassed onto its property by causing subsurface wastewater to migrate into the subterranean level of FPL's tracts, which are located next to a tract on which EPS operates a non-hazardous waste injection well. The jury failed to find that a trespass had occurred. Because we conclude the charge given to the jury improperly placed the burden of proving EPS's affirmative defense of

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consent on FPL, we reverse the trial court's judgment and remand the case for a new trial on the trespass claim. I. Background A. Permit History before the Texas Natural Resource Conservation Commission EPS operates a non-hazardous wastewater disposal facility in Liberty County, Texas, pursuant to permit number WDE-316. EPS's operations are subject to permits that it received from the Texas Natural Resource Conservation Commission (TNRCC).1 Prior to the date that EPS received its initial permit, the State scheduled a hearing to address EPS's request for a permit for its well. J.M. Frost III, FPL's predecessor in title to the tracts at issue when the initial permit hearing occurred, objected to EPS's application. Before the hearing occurred, Frost withdrew his objections; in return, EPS paid him $185,000. Approximately four and one-half years after EPS received its initial operating permit, the State altered certain restrictions governing EPS's operations, significantly increasing both the rate and volumes allowed by the initial permit. Although FPL contested EPS's proposal to change its permit, the requested changes were approved. Although FPL appealed that decision, the Austin Court of Appeals determined that the The TNRCC changed its name to the Texas Commission on Environmental Quality (TCEQ) in 2002. See Act of May 28, 2001, 77th Leg., R.S., ch. 965,

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