ACCI Forwarding, Inc. v. Gonzalez Warehouse Partnership
341 S.W.3d 58
Tex. App.2011Background
- GWP sued ACCI on February 7, 2005 for costs of removing chemicals ACCI stored in GWP's Laredo warehouse and failed to remove.
- ACCI stored July 2000; initial three-week agreement extended to about thirteen weeks with no removal by ACCI despite requests.
- Chemicals were moved from the warehouse to trailers, then to the ground and tarped; disposal required professional handling per government guidance.
- Removal occurred in late September/early October 2003, after GWP obtained a buyer and required removal as a condition of sale; GWP paid $45,000 for powder and $10,800 for liquids.
- Jury found in favor of GWP on trespass and nuisance; trial court entered May 27, 2009 judgment for $55,800 plus interest; post-judgment motions and orders followed, culminating in an affirmance of the judgment on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Limitation defense viability | GWP's claims were continuing torts; temporary nuisance; accrual continued until removal in 2003. | ACCI contends claims accrued in 2000 and were time-barred by a two-year limit. | Not barred; evidence shows temporary nuisance continuing until 2003. |
| Imputing liability to officers/directors under Tax Code | Stipulations make any resulting judgment a corporate debt; directors/officers liable under 171.252/171.255. | Liability for torts cannot be imposed on officers/directors under those provisions. | Court imputed liability to De La Miyar and Rullan under the stipulations. |
| Rule 316 nunc pro tunc characterization | Orders vacating prior judgments were properly framed under Rule 316 after plenary power. | The orders were mischaracterized as Rule 316 nunc pro tunc. | No error in the trial court's characterization and handling of the orders. |
| Nuisance theory cognizability | GWP sufficiently alleged nuisance and trespass; nuisance claim supports recovery. | Nuisance theory is not cognizable for this conduct. | Discretionary ruling unnecessary to final disposition because trespass supported judgment. |
Key Cases Cited
- Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) (accrual of limitations is a question of law for court; permanent vs temporary nuisance tests)
- Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex. 1984) (temporary vs permanent injury to land; damages for temporary injury can be within two years prior to suit)
- Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) (see above (duplicate entry for accuracy in this schema))
- Hues v. Warren Petroleum Co., 814 S.W.2d 526 (Tex. App.—Houston [14th Dist.] 1991) (distinguishes permanent vs temporary injury; supports temporary nuisance conclusion)
- Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex. App.—Dallas 1994) (perceived continuation of injury; accrual timing in torts)
- Waddy v. City of Houston, 834 S.W.2d 97 (Tex. App.—Houston [1st Dist.] 1992) (continuing tort principles in nuisance context)
- Creswell Ranch & Cattle Co. v. Scoggins, 39 S.W. 612 (Tex. Civ. App.—Fort Worth 1897) (continuing trespass accrues as conduct continues)