672 Town of Dish v. Atmos Energy Corporation, 519 S.W3d 605 (Tex. 2017)
Wednesday, August 1st, 2018
The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.
Town of Dish v. Atmos Energy Corporation, 519 S.W3d 605 (Tex. 2017), held that the two-year statute of limitations barred trespass and nuisance claims attributable to a compressor station. Four independently owned co-located natural gas compressors (collectively, the “Ponder station”) came online outside of the Town of Dish between February 2005 and May 2008. The Town and various residents began complaining about the noise and odor emanating from these facilities as early as 2006, but they did not sue until February 28, 2011. The issue was whether the two-year statute of limitations on the Town’s trespass and nuisance claims began to accrue before February 28, 2009. The Town contended that “they suffered no legal injury until the Ponder station was ‘completely finished’ in the summer of 2009. . . .” The energy companies contended that “[i]f the residents’ claims accrued at all, they did so before February 28, 2009,” because the residents initially began to complain in 2006.
“A cause of action accrues ‘when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.’” “‘[A] permanent nuisance claim accrues when the condition first ‘substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.’”
The court noted that as early as the fall of 2006, the Town held public meetings to discuss noise and odor complaints. In 2007, there was media coverage of the Town’s grievances. In 2008 and 2009, the Town threatened litigation and state regulators investigated based on the Town’s complaints. The court concluded that any legal injury that occurred did so at least on completion of all the compressor stations in May 2008, although the record showed the injury possibly occurred even earlier.
In Natural Gas Pipeline Company of America v. Justiss, the court held that the cause of action accrued when there was objective evidence that conditions at a compressor station worsened at a later date. The Town tried to rely on Justiss by presenting eighteen resident affidavits as evidence that noise and odor worsened in the summer of 2009 after the completion of the facility. Moreover, most of the affiants uniformly asserted that they were not aware that Ponder station was transmitting dangerous substances until the release of an environmental report in September 2009. The court explained that “an accrual date [of a nuisance claim] must be based on objective evidence, not bare, subjective attestations.” The court held that the affidavits were insufficient to support a determination that the Ponder station became a permanent nuisance in 2009. Furthermore, the court noted that there was “[a]mple evidence show[ing] the residents were concerned about possible air contaminants long before the [release of the] report.” Therefore, the report did not amount to proof of when the legal injury occurred.
It was undisputed that this was a permanent nuisance case and that the cause of action accrues when the condition first substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. The evidence of early annoyance in this case was compelling.