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Asplundh Tree Expert Co. v. Abshire

Court of Appeals of Texas, Third District, Austin

March 24, 2017

Asplundh Tree Expert Co., Appellant
v.
William J. Abshire; James P. Allison; Teresa Amos; Joyce Anayanwa; Johnnie W. Andress, Jr.; Leslie P. Antalffy; Barbara A. Antalffy; David Ashley; Jammie Armor; David Arrizola; Jean E. Backus; Karl T. Baker; Karen M. Baker; Stephanie Ball; Gary Baltis; John Baszkiewicz; Eve Baszkiewicz; James Beckendorf; Cynthia Beckendorf; Michelle Belden; Tina Eileen Berdett; Angel Blackley as Executrix of Estate of Camilla Estelle Hawkins; Don G. Blackmon; Jan Blackmon; Richard Blakes; Edward Blas; Harriet Bliss-Laird; Richard Lloyd Bow; Cynthia M. Boyle; Tara Ann Brazeal; Gary Briggs; Joe Carlos Briones; William Greer Brooks; Robie Brown; Sue Ann Bunner; Richard Cabral; Mark A. Campbell; Ramon Campos; Adam Cardenas; Linda Cardenas; Richard James Carnicle; Marianne Case; Dean Christiansen; Edward J. Cisneros; Davie N. Coker; Linda Constantine; Alta Copeland; Jerry L. Courson; Irene Elizabeth Corbit; Lloyd Franklin Curry; Adan Cruz; J. Cindy Cruz; Michael S. Daniel; Robert B. Davis; Rodney W. Davis; Carolyn Freyer Degenhart; George Michael Degeurin; Anne Deshotels; Angela Dickinson; Shirley A. Diggs; Mark A. Dominguez; Stanley F. Dodd; David K. Douglas; Karen L. Douglas; Victor Dube; Vincent Robert Dudley; Jan Marie Dudley; Victor Glen Edwards; Judy Edwards; Connie Ellard; James Ellard; Mary McDonald Ellison; David Embler; Deborah E. Embler; Adam P. Espurvoa; Maria E. Espurvoa; Greg Etherington; Gretchen Etherington; Jackie J. D. Ferguson; Edward S. Fisher; Mary S. Flenoy; Billy A. Fletcher, Sr.; Joyce M. Fletcher; Lacinda Ford; Laura Francis; Ricky Garcia; Jimme E. Gatlin; Georgi K. Georgiev; Maryjane Garton Gibson; Jeff Gillman; Jan Givens; Stephen Gleinser; Betsy Goggan; Martin Goldfarb; Rolando Gonzales; Mindy Graber; Michael Graham; Alicia Graham; Haley's Triple H Ranch LLC; Jose Guerra; Joyce Haber; Mark A. Hanson; Kathy L. Hanson; Cecil E. Harbaugh; Samuel E. Harkins; Mary B. Hay; David Hermes; Beth Hermes; Elodia Hernandez; Terrel Herring; Amanda Herring; G. H. Hickman; Philippe Hilaire; Richards Hilaire; Edward Paul Hoffman; Annette Holmes; H. L. Homrighaus; Charles Horton; Eileen Hulme; John W. Hunt; Loraine H. Hunt; Laura Lea Jackson; Bill Jolly; JMH, Inc.; Phyllis A. Kalish; Fred Kawaja; Steve Keselik; Beth Keselik; W. E. Keller; Connie J. Kelly; Harris L. Kempner; Joellen A. Kerrigan; Steven D. King; Linda M. King; Shirley Kleypas; James G. Kohl; Katherine S. Kohl; Christy Kosser; Susan Kradjel; Sharon Kramer; Walter Kuster; Patty Kuster; Jesus Landero; Richard D. Larson; Lee Lasher; Bridget E. Laws; Anne M. Layton; Steven Dale Leclaire; Anthony A. Levermann; John A. Levermann; David L. Lewis; Tracy N. Lewis; Mary E. Lewis; Timothy D. Loe; Mary E. Loewe; Ronald J. Long; Celina D. Long; Daniel Lopez; Melissa Lopez; Charles Lowe; Marilyn Lowe; William K. Mabry; Dennis R. Maciejka; Richard West Maconi; Patsy Maddox; Paul G. Maddy; Dollie Maddy; Pauline A. Magee; Maria Orozco Maldonado; Michael Joe Mallicote; Sara Beatriz Mallicote; Elliott Manferd; Rebecca Manferd; Jr. Maranda; Martha Maranda; Juanita Maranda; Randy V. Marburger; Cora B. Marburger; Andrew Margarett; Matl Family Cemetery Assoc.; John A. Matl; Ruby R. Matl; Terrell Matlock; Dorothy Matlock; Thomas W. Matocha; Sheryl Lynn Coles Mays; Teressa Kay McCarthy; Brenda J. McCurry; Kenneth L. McNeil; Asuncion A. Mendoza; Rogelio Dungo Mendoza; Wayne Meuth; Larry L. Mills; Shari R. Mills; John D. Mican; Bill A. Mitchusson; Kay K. Mitchusson; Patricia L. Muller; John T. Murray; Laura A. Murray; Cody Murphy; Lori Murphy; Judy Murphy; Michael G. Murphy; Alan R. Nalder; Richard B. Newberry; Tia Marie Clardy Niehus; Ronald Nolan; Kevin P. Owens; Ray B. Pack; Satish Kumar Paladugu; Don Parker; Vicki Parker; Gerald W. Parks; Sharon Ann Parks; Crea T. Parsons; Joe A. Patterson; Daniel Pereira; Barbara Pereira; Ted Peters; Lisa Picciandra; Michael Picciandra; Stephen Podkamensky; Eric L. Poe; Cyndi S. Poe; Jon Pollard; Freddie L. Poor; Roland J. Poppy; Patrick Pratt; Dennis J. Prihoda; Leigh Ann Privitera as Executrix of Estate of Marilyn Privitera; Jospeh K. Pullen; Patricia L. Pullen; The Purcell Family Trust; Barbara J. Purvis; Kelly Pustka; Donald L. Putman; Gregory Reece; Christin Reece; Roger Reid; Rosaena Resendez; Eduardo E. Reyes; Glen L. Reynolds; Bertha Rhea; Warren E. Richter; Carol Richter; Elizabeth Rinker; Benton A. Roberts; Alton Robinson; Jerry Ronquillo; Genovevo Rubalcaba; Joseph A. Russo; Slyvia Russo; William Herbert Rymer; Joseph L. Salone; James Salvitti; Nanette Salvitti; Gaylan Sampson; Ernest Schrab; James Scoggins; Terry Seidat; Henry R. Sellards; Hobert S. Seymore; Joan C. Smiley Shaw; Stephen B. Shaw; Rick Shelly; Patricia Shelly; Raymond D. Shelton; Shelly Silveira; Tony B. Simmons; Evelyn M. Simmons; Craig B. Sommers; Eric Shull; Ella Sheryl Smart; Terrence J. Smith; Vaughn R. Smith; Ricky Snell; Wanda Snell; Helen M. Stamps; Joseph M. Stasulli; Rosario C. Stasulli; Beatrice Stewart; Shelton Stohler; Barbara Stohler; Ronnie G. Tabor; Curtis Tallman; Vicki G. Tallman; Joy D. Tatum; Timothy R. Taylor; Joseph S. Ternus; Russell Terrell; Texas Kiln Products, Inc.; Timothy Tewalt; Susan Tewalt; Jan M. Thompson; Louis J. Thompson; Kelvin Thompson; William S. Thompson; Michael Tompkins; Steve R. Torees; Judy Thurston; Linda Torgerson; Cher D. Travis; James Roy Traweek; Elizabeth P. Tschudi; Paula Marie Tyre; James Tyson; Raul Valdez; John R. Vare; David Vasquez; Roger Vasquez; Mike Vega; Debbie Vega; Ronald W. Vigil; David Wade; Joel Wade; Warren D. Weber; C. Ann Weber; Linda K. Weber; Karen Wehr; Lisa D. Weinstein; William Russell Wheeler; Curtis White; Larry White; Claudia Witherspoon; Zinmon Jessie Whitter; Darrell C. Whitworth; Scott K. York; Gary J. Yurkiewicz; Gerald Zampanti; Jimmy L. Allison; Janis B. Allison; Patrick E. Amy; Ruth A. Amy; Linda Erwin; Dennis Andel; Erika Anderson; Paul Anderson; AQUA Water Supply Corp.; Cornelia Arhelger; Melvin Armstrong; Catherine Armstrong; George Arnell; Janet Arnell; Claudia Ashlock; Steven Ashlock; Jeff Bader; Patti Bader; J. P. Bailey c/o Donna Grace; James Gary Baker; Barbara J. Baker; Marian Baker; Melvin E. Baker; Betty J. Baker; Edward A. Balusek; Norma Bangs; Charles Bangs; Marian J. “Joey” Baron; Barbara A. Barrett; Michael C. Barrett; Donald Barron; Julie Barron; Linda Griesenbeck; Bastrop County Emergency Services District No. 2, James Allen, President; Bastrop Independent School District c/o Steve Murray; Bruce Bearden; Vonda Bearden; Joe Ray Bennight; Natalie Bennight; Jerry M. Benson; Margaret Benson; James Berkner; Dorothy Berkner; Patricia A. Biglin; Rick L. Blakely; Lisa Akard Block; Bluff Springs Food Mart, Inc. c/o Tariq Majeed; Katharina Bolinger; Rhonda Bonderson; Gary Bonnette; Cindy Bonnette; Bari Elese Bowles; Robert Bridges; Barbara Bridges; Ronald Bridges; Benjamin H. Bright; Connie Bright; Mark Brochstein; Michael D. Brooks; DeAnna Lynn Brooks; Connie Brown c/o Kevin Mechura, POA; Rodney Brown; Darlene Bryand; Quentin R. Jordan; Mitchell Buerger; Pamela Buerger; Max Butler; Janice Butler; Joy E. Caffey; John E. Carey; Anne Carey (Barnes); Michael L. Caprenter; Angelica Caprenter; Sina Chandler; Thomas Doyle Christian; Dixie Ruth Christian; Nancey Chumley; Margaret Clakley c/o Sheri Bartsch, daughter; Joseph C. Clemmons; Jacqueline Clickner c/o Richard Clickner, POA; John Cline; Linda Cline; Vito Colavito; Collins Properties, LLC; Judith Dale Connelly c/o Carol Brandy; Marvin C. Conrad, Jr.; Terry L. Conrad; David Tracy Conti; Erichca Lynn Conti; Darryl Cook; Glenn A. Cordell; Nancye Cordell; Laura Cox; Marc Cox; Tiffany Cox; Paula Cox; Ana Cox; Micah Craddock; Frank Craddock; Norma June Craig; Susanne Marie Crane; Janet Cseresznye; Gerald Cseresznye; Guadalupe De Los Santos; Maria Levrie Barber; Edward Dear; James Denny; Donna Deteau; James L. Drury; Emil Doyle Dubec dba Pro-D Builders LLC; Robert J. Dulovics; Kathleen K. Dulovics; James Dunbar; Sherry Dunbar; Jacquelyn Anne Hartwell Eason; Marisa E. Eatock; Jason J. Edwards; Denise Edwards; Joe Ellett; Lynn Ewert; Richard Fender; Mary Ann Fender; Jack Figart; Mary Nelle Figart; Stephanie Figueroa; Oskar Fink; Brigitte Fink; Bennie Fore, III; Marianne Wakehouse; Kelvin Fouts; Johnny Stock; Christine Fox; Stephen A. Fox; Ernest R. Fox Living Trust; Judge Randy Fritz; Holly Fritz; William J. Forst; Judith Fruchter; John Gargus; Anita Gargus; Michele Gay; Shelley Holmes; Christopher Kirker; Carlos Gaytan; James Gerhardt; Olena Gerhardt; Larry Gfeller; Kathleen Gfeller; Angela Gibson; Bryan Goertz; Debbie Goertz; William Gonzales; Kizzie Gonzales; Tom Gostomski; Robert Gregory; Bettye Groom; Floyd Johnson; Robert Gurley; Jana Gurley; Daniel Gutierrez; Julie Gutierrez; William Wayne Hall; Deborah Hall; WW & DM Hall Trust; Thomas Haptonstall; Irma Haptonstall; Bealuh Laverne Hardee c/o Bryson Hardee; Bryson Hardee; Willie R. Hargrove; Mary Lynn Harmon; Roy Harmon; Steven W. Harris; Bill Haschke; Andrea Haschke; Wayne E. Hatfield; Helma I. Hatfield; Frans Hendriks; Roselly Hendriks; Daniel Hepker; Cynthia Hepker; Luz Hernandez; Shawn Herring; Chris Gustafson; Joseph J. Herrman; James Hershberger; Dail Hershberger c/o Keridwyn Hershberger and James Hershberger; William Hewett; Dorothy Hewett; Willian Higgins; Deborah Higgins; William & Deborah Higgins Revocable Trust; James B. Hoffman; William Allen Hoffman; Bryan Hohenstein; Michael Hojnacki; Cordelia H. Holmes; David Holmes; Rebecca Holmes; Jerry Hooten; Debra Hooten; Michael Horecka; Catherine Horecka; W. Roy Horton; Virgie Horton; Michael George Hritz; Johnny D. Hughes; Rosely A. Hughes; Stephen Hughes; Ismaela Hughes; Phillip Hurt; Troy Hyatt; Robert Ingrum; Thomas P. Jackson; Karen Jackson; James D. Jennings; Julianne Jones; Greg Jones; Leona L. Jones; Robert D. Jones; Dennis Kane; Margaret Kane; Marilyn Kellar; Robert Kelly; Gaile Kelly; Coitt Kessler; Kristi Kessler; Donald King; Deanna King; Thomas Kirchner; Allen Kleypas; Dan Kohlert; Brenda McClelland Kohlert; Larry Kretschmar; Jean Kretschmar; L & L Ranch c/o Robert K. Long; Isabel Lambertz; Monte Land; Jill Land; Lawrence K. Land; Janis K. Land; Lisa Laney; Chester Lathan; Brenda Gay; Timothy Lee; Darlene (maiden name Burr) Lincoln; John H. Lipscombe; Robert J. Loucks; Judith E. Loucks; Kimberly (Bevins) Magaldi; Connie Hopson; Richard C. Mangiamele; Colin Mason; Kimberly Mason; Tanya Mathison; Cary Porter; Eleanor Maynarich; Wayne McDowell; F. Stacy McDowell, deceased; John McGinley; Rollie Gregory; Ronnie McKelvey; Julie McKelvey; Sandra B. McLain; James Merchant; Julia Merchant; John C. Miller; Shelli Miller; Mace Miller; Georgia Miller; James Minto; Gayle Minto; Robert L. Mitchell; Kristan L. Mitchell; Sara J. Moers; Robert Moers; Lawrence Momey; Judy Slater Moore; Jerry Slater; Lee Moore; Loretta Green; Roger Green; Joe Morales; Lynelle Morales; Ashby Morrison; John Moum; Brenda Moum; Susan Garner; Debbie (Marrs-Campion) Murphy; Wayne Murphy; Ashley Mutschink c/o JBA Properties LLC; Henrietta Nations; Richard Nations; John J. Navar; Lynette C. Navar; Stacey Tiner Nevarez; Kandra Niagra; Dennis J. Norman; Laurie J. Norman; Edgar Nyc; Frederick F. Nyc, III, c/o Billie Thibeaux; David Ogilvie; Lou Ford Nitkin; Fernando Orozco; Juan Ortiz; Teresa Ortiz; Ronald Overpeck; Denise Halle; Barbara Palmer; Robert Palmer; James Parrish; Mark Patterson; Fran Patterson; Scott Pearson Aimed Investments, Inc.; Mary Helen Pena; Jearol Jackson; Julio Perez; Charles Dempsey Peters; E. W. Peters; Barbara Peters; Scott Pierron; Linda Pierron; Elizabeth Pittman; James H. Polsky Skipol, Inc.; James H. Polsky; Marcie Polsky; Vivian Primeaux; Gary Raemsch; Mark Raemsch; Bernie Raemsch; Frank Rainosek; Lorraine Reagan; Marisa Rendon; Sam Roberson; Arlene L. Sawyer; Matilde Rodriguez; Tomas Rodriguez; Kathryn Rogers; Thomas Claiborne; George F. Rohr; Virginia C. Rohr; Willie Ross; Edna L. Ross; Guy Roush; Kerri Roush; Robin Rudloff; Brian Rudloff; Anielea Rust AKA Properties of North TX; Ernesto Salazar; Sarah Salazar; Michael Samson; Carol Hanley; Otilia Sanchez; John A. Sandoval; Minerva Sandoval; Darlene Vaughan Saunders; Khaleel Sayyed; Rachel (Simpson) Scales; Rickey Alan Schoppe; Jack A. Schumacher; Shirley Schumacher; Rex A. Schumacher; Shirley and Rex A. Shcumacher Loblolly Pines Village Ltd; Stephen Schwettmann; Seabolt Investments; David C. Jones, M.D.; Allan W. Seekatz; Kellye S. Seekatz; Jon A. Seitz; Mary Sepeda; Sandra Gonzalez (daughter); Sofia Sepeda; Jimmie Sepeda; Jack Shelton; Tanya Shelton; William Sigle; Sophia Sigle; Janie Sue Simmons; The Janie S. Simmons Revocable Lifetime Trust; Roger Slaughter; Peggy Jane Smith Trust; John D. Smith, Jr., Trust; Diane S. Simpson Trust; Bruce Smith Trust c/o T.L. Smith Jr. Trusts; Bruce Smith; David Smith; Shannon Smith; Lisa Quackenbush Smith; Smithville Independent School District c/o Howard S. Burns, Jr.; Jerry Snyder; Debbie Somers; Gerry Warner; James Sowell; Mildred Sowell; Steven Stamper; Marsha Stamper; Ann E. Steele; Donald & Patricia Steffe Revocable LivingTrust; Carson Stephens; Jeanette Stephens; Carson Stephens FBO Equity Trust Company Sterling Trust Custodian FBO Carson Stephens IRA; Shirley T. Stinson; Walt M. Stischer, Trustee The Walt M. Stischer Living Trust; Terry Swanson; Joan Swanson; Harvey Symm; Josephine Symm; Charles Tausch; Kasey Tausch; Carolyn V. Terrell; Billie Thibeaux; Terry Thibeaux; Emory A. Thomas; T&S 2000 Family Limited Partnership; Belinda (Williams) Tolbert; George Traugott; Alice Traugott; Charles Trautman; Cave Creek Properties LLC; Markus Trillsch; Virgil Tripp; Sherida Tripp; Sherri Tullos; Paul C. Tuttrup; Maria Tuttrup; Virgil A. Van Cleef, III; Scottie Vandiver; Rhonda Vandiver; Rainer A. Vanoni; Jimmie Ann Vaughan; Shelton Vaughan; Anne M. Vaughan; Kathleen A. Vaughan; Laurier Vocal; Gisele Vocal; Susan Voelzel; Graham Voelzel; Debra Vukelich (Rocha); Donald Walker; Epifania Walker; Kimberly Walker; James Walker; Conrad Gordon Walton, Jr.; Laura Ann Walton; Charles Watt; Deborah Watt; Gary Wehr; Deborah Wehr; Sherry Wetzel; Carter White; Norman Whitlock; Michael A. Wiles; Elizabeth J. Wiles; Raachael Williams; Debbie Williams; Drew Williams; Donnie Williamson; Deborah Williamson; Walter Winslett Representing Dorothy H. Winslett, Jeri Nell Winslett, and H.R. Winslett Trust; D.C. Wofford; Richard A. Wolforth; Rudy Woods; Janice Woods; Laura Yannuzzi; Wayne E Yeo; John G. Young; Sandra Young; Rose M. Yound; and John Early, Appellees[1]

         FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 2012-MCF-01, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Goodwin

          OPINION

          David Puryear, Justice.

         In three separate lawsuits, several hundred individuals sued Asplundh Tree Expert Co. ("Asplundh") seeking damages stemming from the devastating 2011 Bastrop County Complex Fire. In response, Asplundh filed a motion for summary judgment asserting that the suits were untimely because they were filed past the two-year statute of limitations. After convening a hearing on the motion, the district court concluded that the suits were timely because the applicable statute of limitations was tolled, and accordingly, the district court denied the motion for summary judgment. Prior to the district court ruling on the motion, the parties filed a joint request asking the district court to allow them to pursue a permissive interlocutory appeal, and the district court granted that request in its order denying Asplundh's motion for summary judgment. See Tex. Civ. Prac. & Rem. Code § 51.014(d) (authorizing trial court to "permit an appeal from an order that is not otherwise appealable if . . . the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion" and "an immediate appeal from the order may materially advance the ultimate termination of the litigation"), (f) (allowing appellate court to accept interlocutory appeal); Tex.R.Civ.P. 168 (permitting "an appeal from an interlocutory order that is not otherwise appealable"). Following that ruling, Asplundh filed an unopposed petition for permissible appeal, and this Court granted the petition. See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f). We will affirm the district court's order denying Asplundh's motion for summary judgment and remand for further proceedings.

         BACKGROUND

         This permissive appeal stems from the Bastrop County Complex Fire that happened in September 2011. See 3109 Props, L.L.C. v. Truck Ins. Exch., No. 03-13-00350-CV, 2015 WL 3827580, at *1 (Tex. App.-Austin June 18, 2015, pet. denied) (mem. op.) (describing fire as "a 32, 000-acre inferno that destroyed over 1, 600 homes and killed two people"). Asplundh is a utility contractor that specializes in tree pruning and vegetation management and was hired to maintain electric easements by the electric utility serving the area in which the fire started. After the fire, hundreds of property owners and more than fifty insurers sued Asplundh. In those suits, the plaintiffs pursued claims for negligence, gross negligence, nuisance, and trespass and sought "actual and consequential damages" as well as exemplary damages. The claims by those original plaintiffs have settled.

         In May 2012, a class action was filed on behalf of the Bastrop Plaintiffs who were also property owners in the area. Initially, the class action alleged claims for negligence, gross negligence, and nuisance against Asplundh for failing to maintain the easements, which the Bastrop Plaintiffs alleged resulted in the fire and in the fire spreading throughout the affected areas. The final amended petition dropped the nuisance claim against Asplundh, pursued certification for a class composed of property owners whose property valuation was decreased by 25% as a result of the fire, [2]and sought damages reflecting the decrease in the Bastrop Plaintiffs' property values. Regarding damages, the Bastrop Plaintiffs sought "[a]ctual and exemplary damages" "to recover for the damages for diminished land value losses due to plant life, trees, shrubs and wildlife damaged and/or destroyed by fire." In the event that the class action was not approved, the named class representatives, Franrae Ltd. and Re La Investments, Inc., sought "to recover their respective actual and consequential damages resulting from the aforementioned acts and/or omissions" as well as the diminution-in-value damages mentioned above. Asplundh opposed the class certification and argued that liability, causation, and damages could not be determined on a class basis and that these issues "can only be resolved via individual actions." Ultimately, the district court denied the class certification in March 2015, determined that the requirements for class certification were not met, and explained that liability, causation, and damages "cannot be resolved on a class-wide basis."

         Prior to the certification ruling and before the claims by the original plaintiffs had settled, the district court consolidated all of the lawsuits, including the class action by the Bastrop Plaintiffs, into Master Case No. 2012-MCF-01 for pretrial and discovery purposes. Following consolidation, Asplundh moved for "[a] single, binding liability trial" for all of the cases and filed a proposed trial plan. In the proposed plan, Asplundh acknowledged that the original plaintiffs were pursuing negligence, gross negligence, trespass, and nuisance claims and that the Bastrop Plaintiffs were pursuing negligence and gross-negligence claims and stated that, in general, "all plaintiffs seek to recover for property damage that they sustained, or insurance proceeds which were paid, as a result of the Bastrop Fire." In addition, Asplundh filed a motion for summary judgment seeking to dismiss all of the four types of claims.

         Following the district court's certification ruling, three groups from the Bastrop Plaintiffs filed separate lawsuits against Asplundh in March and April 2015. The first suit was filed by plaintiff John Early, alleged causes of action for negligence and gross negligence, and sought recovery for "actual and consequential damages." The second suit had over 100 plaintiffs; was led by Bryan and Debbie Goertz; asserted claims for negligence, gross negligence, trespass, and nuisance; and sought "actual and consequential damages." The final suit had several hundred plaintiffs, was led by William J. Abshire, and alleged claims for negligence, gross negligence, trespass, and nuisance. In addition, the plaintiffs in the Abshire suit sought "actual and consequential damages" and also listed various types of "actual or compensatory damages" that were not specifically listed in the class action.

         After the suits were filed, Asplundh filed a motion for summary judgment against all of the plaintiffs in the three suits regarding the claims for negligence, gross negligence, nuisance, and trespass. Specifically, Asplundh asserted that the suits were filed more than eighteen months after the passage of the "two-year statute of limitations would have expired" and were, therefore, time-barred unless the claims were tolled during that period of time. See Tex. Civ. Prac. & Rem. Code § 16.003 (stating that person must bring suit for injury to property "not later than two years after the day the cause of action accrues"); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 436 (Tex. App.-Fort Worth 1997, pet. denied) (explaining that "[a]n action for permanent damages to property must be brought within two years from the time of discovery of the injury"). Moreover, Asplundh emphasized that although "Texas law allows equitable tolling of a statute of limitations based on late discovery, inadvertent misidentification, incapacity, and other rare equitable grounds, the plaintiffs do not assert those equitable grounds." In addition, Asplundh urged that the only tolling basis alleged by the Bastrop Plaintiffs was "the theory that the statute of limitations was tolled while the unsuccessful class petition was pending" but that "[t]he Texas Supreme Court has never recognized this type of class-action tolling, which was created by the federal courts." Alternatively, Asplundh argued that even if the doctrine applied to Texas class actions, the doctrine would not have tolled the nuisance and trespass claims not alleged in the class action. Accordingly, Asplundh urged the district court to grant a partial summary judgment and dismiss "as time-barred" any relief pursued beyond the "diminution in land value" to the Bastrop Plaintiffs' properties alleged in the class action. Finally, Asplundh asked the district court to authorize "an interlocutory appeal from any adverse ruling on" Asplundh's summary-judgment motion.

         Subsequent to Asplundh filing its motion, the Bastrop Plaintiffs filed a joint response urging the district court to deny Asplundh's motion for summary judgment. In their response, the Bastrop Plaintiffs acknowledged that the three suits had been filed more than two years after the fire and that the applicable statute of limitations was two years, but they asserted that the filing of the class action "tolled limitations for all persons . . . that held an ownership interest in property located within Bastrop County, Texas that was partially or completely burned by the complex fire from the date of" the filing of the class action until the district court "signed an order . . . denying class certification." As support for this assertion, the Bastrop Plaintiffs relied on a tolling doctrine articulated by the Supreme Court in the class-action context. See American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). Relying on that case as well as other cases applying that doctrine, the Bastrop Plaintiffs urged that the doctrine applies under Texas law and, accordingly, that "Asplundh's Motion fails as a matter of law and should be denied in its entirety."

         After convening a hearing on the motion for summary judgment and reviewing the parties' filings, the district court denied Asplundh's motion. In particular, the district court determined that the filing of the class action "and the subsequent amendments thereto tolled the statute of limitations for the members of the putative classes respectively asserted by the class petition and its amendments, through the date of the" denial of class certification. In addition, the district court determined "that the causes of action asserted by Plaintiffs, members of the various putative classes respectively asserted by the class petitions, were timely filed, because the causes of action asserted by Plaintiffs are either the same causes of action asserted by the various putative classes or share a common factual basis and legal nexus as the causes of action asserted by the putative classes." Further, the district court concluded "that because the statute of limitations applicable to the causes of action now asserted by Plaintiffs was tolled, the statute of limitations does not bar the pleaded causes of action or remedies, irrespective of whether such causes of action or remedies were sought by any of the various class petitions." In addition, the district court gave permission for Asplundh to file a permissive appeal regarding the following two questions of law: "Did the American Pipe tolling doctrine toll the statute of limitations for putative class members pending a ruling on class certification, " and "[i]f so, was the statute of limitations tolled for Plaintiffs' claims in this case in respect to all causes of action and remedies sought by Plaintiffs, irrespective of whether those causes of action and remedies were expressly included in the class petition?"

         Following the district court's ruling, Asplundh filed an unopposed petition for permissive appeal, and this Court granted the petition. See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f).

         STANDARD OF REVIEW

         When reviewing the denial of a summary judgment, we apply the same standard used in reviewing the grant of a summary judgment, El Paso Cty. v. Ontiveros, 36 S.W.3d 711, 714-15 (Tex. App.-El Paso 2001, no pet.), which is a de novo standard, Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary-judgment motion, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005). We take as true evidence favorable to the nonmovant and resolve all doubts in its favor. Little v. Texas Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004); Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). The movant is entitled to summary judgment if the evidence disproves, as a matter of law, at least one element of each of the plaintiff's causes of action or conclusively establishes each element of an affirmative defense. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); see Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When moving for summary judgment based on the affirmative defense of limitations, the defendant has the burden of "conclusively negat[ing] any relevant tolling doctrines the plaintiff asserted in the trial court." Diaz v. Westphal, 941 S.W.2d 96, 97-98 (Tex. 1997). "Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment." Mims-Brown v. Brown, 428 S.W.3d 366, 371 (Tex. App.-Dallas 2014, no pet.).

         DISCUSSION

         Tolling Under Texas Law

         In its first issue on appeal, Asplundh asserts that the district court erred by denying Asplundh's summary-judgment motion because "[t]he American Pipe tolling doctrine did not toll the statute of limitations for the putative class members pending a ruling on class certification."

         In American Pipe, "the State of Utah commenced a civil action . . . against the petitioners" in federal court, and "[t]he suit purported to be brought as a class action." 414 U.S. at 541. Following the filing of the suit by the State of Utah, "the petitioners moved for an order . . . that the suit could not be maintained as a class action, " and the motion was granted. Id. at 542-43. Shortly after the trial court's ruling, "the respondents, . . . all of which had been claimed as members of the original class, filed motions to intervene as plaintiffs in Utah's action." Id. at 543-44. The trial court denied the motions to intervene and concluded that the statute of limitations "had run as to all these respondents and had not been tolled by the institution of the class action in their behalf." Id. at 544.

         On appeal, the Supreme Court held that "the commencement of the original class suit tolls the running of the statute for all purported members of the class" and that the motions to intervene "were timely" because the intervenors filed their motions eight days after the trial court determined that the suit filed by the State of Utah could not be maintained as a class action and because "[t]he class suit brought by Utah was filed with 11 days yet to run in the" tolled statute of limitations. Id. at 552-53, 561. In a subsequent case, the Supreme Court determined that tolling applies to class members who later seek to file individual actions and not just to intervenors or named plaintiffs. See Crown, Cork, & Seal Co. v. Parker, 462 U.S. 345, 348, 354 (1983); see also Bowen v. New York, 476 U.S. 467, 481-82 (1986) (ruling that tolling of statute of limitations was appropriate and that tolling also applied to "class claimants who had received a final [administrative] decision . . ., but who did not seek judicial review within the statutory 60-day time period"); Chardon v. Soto, 462 U.S. 650, 652 (1983) (noting that "[t]he parties agree that the statute of limitations was tolled during the pendency of the . . . class action").

         Although Asplundh acknowledges the existence of this tolling doctrine, it urges that tolling should not be applied to the claims in this case for several reasons. First, Asplundh asserts that the tolling doctrine recognized in American Pipe applies only to federal claims and notes that a similar tolling doctrine has not been explicitly adopted by the Texas Supreme Court to apply to class actions governed by Texas law.[3] Cf. In re National Football League Players' Concussion Injury Litig., 307 F.R.D. 351, 419 n.90 (E.D. Pa. 2015) (noting that American Pipe "deals only with federal statutes of limitations" and that parties must look to state analogue to see if claims are tolled under state law); see also Wade v. Danek Med., Inc., 5 F.Supp.2d 379, 383 (E.D. Va. 1998) (mem. op.) (explaining that "it is 'doubtful' that" federal cases applying American Pipe tolling "would be applicable precedent with regard to a state statute of limitations" (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 213 (2d Cir.1987))). In addition, Asplundh argues that tolling should not be applied in these circumstances because, unlike other states that have expressly authorized tolling, see, e.g., Or. R. Civ. P. 32N (tolling statute of limitations "for all class members upon the commencement of an action asserting a class action"), the Texas Legislature "has [not] authorized or approved the application of American Pipe tolling in Texas, " cf. Valdez v. Hollenbeck, 465 S.W.3d 217, 227, 229-30 (Tex. 2015) (providing that "[e]nacting statutes of limitations is a legislative prerogative" but considering whether limitations were tolled in light of judicially created tolling doctrines); Underkofler v. Vanasek, 53 S.W.3d 343, 346 (Tex. 2001) (deferring "to the Legislature's explicit policy determination that only two exceptions apply to the statute of limitations for" claims under Deceptive Trade Practices-Consumer Protection Act and refusing to apply type of judicially created tolling to those types of claims but then applying that type of tolling to remaining common-law claims). Specifically, Asplundh points to various provisions of chapter sixteen of the Civil Practice and Remedies Code, which sets out the circumstances in which certain types of tolling apply to a variety of claims, and notes that there is no tolling similar to the type of tolling outlined in American Pipe.[4] See Tex. Civ. Prac. & Rem. Code §§ 16.001, .062-.065, .069, .072. Similarly, Asplundh notes that the legislature has authorized the tolling of the statute of limitations due to the filing of a class action but limited the tolling to class actions alleging deceptive, unfair, and prohibited practices under the Insurance Code. See Tex. Ins. Code § 541.254. Accordingly, Asplundh contends that if the legislature had intended to include all class actions, it would have done so and that if the type of tolling identified in American Pipe applied to Texas class actions generally, there would have been no reason for the legislature to toll the statute of limitations for class actions under the Insurance Code. In addition, Asplundh urges that applying a tolling doctrine created by the judiciary is inconsistent with the purpose of a statute of limitations, which "is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available." See Moreno v. Sterling Drug., Inc., 787 S.W.2d 348, 351 (Tex. 1990); see also Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) (noting that limitations protects defendants "from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence"). In other words, Asplundh argues that the legislature specified that the statute of limitations for the claims at issue in this case is two years and that this Court "should not now substitute its judgment for that of the Legislature."

         Although Asplundh is correct that there is no statutory provision expressly authorizing the type of tolling at issue in this case and although the Texas Supreme Court has not yet been called upon to determine whether a tolling doctrine similar to the one recognized in American Pipe applies under Texas law for class actions, every case from an intermediate Texas appellate court that has addressed the issue, including one from this Court, has recognized that a similar doctrine exists under Texas law. See Clark v. ConocoPhillips Co., 465 S.W.3d 720, 724 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (explaining "that the filing of a putative class-action suit in a Texas state court suspends the running of limitations for all purported members of the class" under doctrine "commonly known as American Pipe tolling" and applying that doctrine to claims in case); All Am. Life & Cas. Ins. Co. v. Vandeventer, No. 02-05-00016-CV, 2006 WL 742452, at *2 (Tex. App.-Fort Worth Mar. 23, 2006, no pet.) (mem. op.) (discussing how all "parties agree that . . . the running of limitations was tolled when" class action was filed); Ventura v. Banales, 905 S.W.2d 423, 425 n.2 (Tex. App.-Corpus Christi 1995, orig. proceeding) (recognizing that like federal courts "Texas likewise suspends the applicable statute of limitations as to all purported members of the class upon the filing of the class action, such that any time remaining on the statute of limitations of the class members' individual causes of action on the date of the filing of the lawsuit is restored and begins to run again on the date the class action is dismissed"); Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 (Tex. App.-Amarillo 1995, writ denied) (noting that appellate courts have held that tolling applies when "the decision of whether a class was entitled to certification" was pending); Koch Oil Co. v. Wilber, 895 S.W.2d 854, 863 (Tex. App.-Beaumont 1995, writ denied) (observing that "statute of limitations was . . . tolled subsequent to" filing of class action); Bara v. Major Funding Corp. Liquidating Trust, 876 S.W.2d 469, 471-73 (Tex. App.-Austin 1994, writ denied) (explaining that "interests presented" in suit by attorney general "in the public interest" were "closely akin to the interests presented in a class action litigation, " stating that "class actions have been held to toll the statute of limitations when a class was decertified or if class members decided to opt out because strict application of the statute of limitations in these circumstances would be inequitable, " applying tolling doctrine from American Pipe to claims from homeowners who filed their own suit after rejecting settlement offer obtained by attorney general on behalf of "group of homeowners, " and concluding that defendant was "not significantly prejudiced, having been put on notice of the claims presented")[5]; Walker v. Polyscience Corp., No. 14-89-00678-CV, 1990 WL 79838, at *2 (Tex. App.-Houston [14th Dist.] June 14, 1990, no writ) (not designated for publication) (overruling issue asserting that summary judgment was improper on grounds that statute of limitations had passed but applying American Pipe tolling, concluding that statute of limitations had passed even though it had been tolled during pendency of class action, and explaining that "the filing of the original class suit suspends the applicable statute of limitations and the period remains tolled for all members of the class until class certification is denied" and that after certification is denied, "the class members must timely intervene or bring individual suits in order to preserve their interest in the subject of the suit"); Mayfield v. San Jacinto Sav. Ass'n, 788 S.W.2d 119, 121 (Tex. App.-Houston [14th Dist.] 1990, writ denied) (noting that "a class action suit suspends the running of the statute only as to all members of the class" and concluding that doctrine did not apply because "appellants have failed to show that their claims fall within the class of claims presented in" class action and that even if doctrine applied and if claims were tolled, claims were still untimely); Grant v. Austin Bridge Constr. Co., 725 S.W.2d 366, 370 (Tex. App.-Houston [14th Dist.] 1987, no writ) (relying on American Pipe and holding that "even though the statute of limitations on a class member's individual cause of action would expire during the pendency of a class action, the filing of the class action suspends the applicable statute of limitations as to all purported members of the class . . . until class certification is denied, " that "the right to pursue an individual cause of action is not foreclosed by decertification of the class, " and that "[a]ny time remaining on the statute of limitations of the unnamed property owners' individual cause of action on the date of the filing of the lawsuit was restored and began to run again on the date the class was decertified").[6]

         In addition, although the statute of limitations at issue requires that parties bringing suit for property damage file their suits within two years of "the day the cause of action accrues, " Tex. Civ. Prac. & Rem. Code § 16.003, the provision does not address tolling or include a list of the types of tolling that can apply to claims asserting property damage, and nothing in the language of that statutory provision indicates that the legislature did not intend for equitable tolling principles to apply to the statute of limitations, cf. Young v. United States, 535 U.S. 43, 49 (2002) (explaining that "[i]t is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute" (internal citations and quotation marks omitted)); Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir. 1987) (recognizing that state courts have adopted judicial tolling doctrine and "long embraced the principles of American Pipe"). In fact, appellate courts have determined that the statute of limitations found in section 16.003 can be extended under equitable doctrines. See Etan Indus., Inc. v. Lehmann, 308 S.W.3d 489, 500, 505 (Tex. App.-Austin 2010) (noting that "fraudulent concealment . . . defers the accrual of a cause of action" under section 16.003 and that suit was timely because "accrual date . . . was tolled"), rev'd by 359 S.W.3d 620, 623, 625 (Tex. 2011) (agreeing with intermediate appellate court that "fraudulent ...


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