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Harris County v. S.K. and Brothers, Inc.

Court of Appeals of Texas, Fourteenth District

November 5, 2019

HARRIS COUNTY AND THE STATE OF TEXAS ACTING BY AND THROUGH THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellants and Cross-Appellees
v.
S.K. AND BROTHERS, INC., D/B/A RIVER OAKS CLEANERS; TREY MELCHER AND YVONNE EVIE MELCHER, TRUSTEES OF THE EVIE MELCHER NON-EXEMPT TRUST; MELCHER INVESTMENTS; AND BILL E. LEWIS AND RICHARD L. KERR, JR., CO-TRUSTEES OF THE LUCILE BIRMINGHAM MELCHER MANAGEMENT TRUST AND THE LEROY MELCHER MARITAL DEDUCTION TRUST; AND FORMER CO-TRUSTEES OF THE EVIE MELCHER NON-EXEMPT TRUST, Appellees and Cross-Appellants

          On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2011-52524

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          Jerry Zimmerer Justice

         Harris County and the State of Texas, acting by and through the Texas Commission of Environmental Quality (TCEQ), challenge the trial court's dismissal of their lawsuit against appellees (1) S.K. and Brothers, Inc., d/b/a River Oaks Cleaners; (2) Trey Melcher and Yvonne Evie Melcher, Trustees of the Evie Melcher Non-Exempt Trust; (3) Melcher Investments; and (4) Bill E. Lewis and Richard L. Kerr, Jr., Co-Trustees of the Lucile Birmingham Melcher Management Trust and the Leroy Melcher Marital Deduction Trust, and former Co-Trustees of the Evie Melcher Non-Exempt Trust (appellees (2), (3), and (4) are collectively the Melcher Defendants) for lack of standing. S.K. and Brothers and the Melcher Defendants, raise a cross-issue on appeal challenging the trial court's order assessing sanctions against them. Because we conclude Harris County and the State have standing to pursue their environmental claims against S.K. and Brothers and the Melcher Defendants, we reverse the trial court's dismissal order and remand the case to the trial court for further proceedings. Having reversed the trial court's dismissal order and remanded this case back to the trial court for further proceedings, we need not address S.K. and Brothers and the Melcher Defendants' cross-issue challenging the trial court's now interlocutory sanctions order, which the trial court may, in its discretion, reconsider on remand.

         Background

         The Melcher Defendants own a shopping center located in Houston. S.K. and Brothers has operated River Oaks Cleaners at the Melcher Defendants' shopping center since 1989. It is undisputed that S.K. and Brothers has continually used perchloroethylene (PCE) in its dry-cleaning operations since that date. The State considers PCE an industrial hazardous waste and a municipal hazardous waste.

         Harris County filed suit against S.K. and Brothers and the Melcher Defendants in 2011, alleging that the dry-cleaning business had caused groundwater contamination with PCE, had failed to timely submit complete and correct Annual Waste Summaries, and also that neither S.K. and Brothers nor the Melcher Defendants have taken any actions to contain, control, or remediate the contamination. See Tex. Water Code § 7.351(a) (authorizing a local government to "institute a civil suit under Subchapter D in the same manner as the commission in a district court by its own attorney for the injunctive relief or civil penalty, or both, as authorized by this chapter against the person who committed, is committing, or is threatening to commit the violation."). Harris County also alleged that neither S.K. and Brothers nor the Melcher Defendants have filed an application to the TCEQ's Dry Cleaner Remediation Program. See Tex. Health & Safety Code §§ 374.001-.253. Harris County sought civil penalties and injunctive relief pursuant to the Texas Water Code, the Texas Health and Safety Code, and various rules and regulations enacted pursuant to those statutes. Harris County also joined TCEQ as a necessary and indispensable party as required by the Water Code.

         The case went to trial before a jury in 2013, but the trial court declared a mistrial. The trial court then assessed sanctions, jointly and severally, against most of the defendants and their trial counsel.[1] Following the mistrial, additional discovery and environmental testing was performed during 2014 and 2015. S.K. and Brothers and the Melcher Defendants then filed a plea to the jurisdiction and motion to dismiss arguing that neither Harris County nor TCEQ have standing to bring the claims alleged in this lawsuit because the Dry Cleaner Remediation Program provides the exclusive remedy for addressing environmental issues related to retail dry cleaners. Following a hearing, the trial court granted the plea and dismissed the case. The trial court vacated all orders previously signed in the case, except the order assessing sanctions. Harris County and TCEQ filed this appeal soon thereafter.

         Analysis

         In a single issue on appeal, Harris County argues that the trial court erred when it granted S.K. and Brothers and the Melcher Defendants' plea to the jurisdiction because the Water Code gives it standing to sue for alleged violations of Texas environmental laws. TCEQ raises two issues on appeal. In its first issue, TCEQ argues that the Dry Cleaner Remediation Program is not the exclusive avenue for the State of Texas, or local governments, to pursue the clean-up of contaminated retail dry-cleaner sites. In its second issue, TCEQ asserts that Harris County has standing to bring a civil suit, and TCEQ has standing as an indispensable party, when the suit is for violations of laws, and regulations promulgated thereunder, found in section 7.351 of the Texas Water Code. We address these issues together.

         I. Standard of review and applicable law

         Standing, a component of subject-matter jurisdiction, is a constitutional prerequisite to maintaining suit. Tex. Ass'n. of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993); Concerned Cmty. Involved Dev., Inc. v. City of Houston, 209 S.W.3d 666, 670 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). A party's standing to pursue and maintain a cause of action is a question of law that we review de novo. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In statutory standing cases, such as the present case, we apply statutory-interpretation principles to determine whether the plaintiff asserting the claim under review falls within the category of parties upon whom standing has been conferred by the Legislature. In re H.S., 550 S.W.3d at 155. Our task in construing statutes is to effectuate the Legislature's expressed intent, not to second-guess the policy choices it made, or to weigh the effectiveness of their results. Ritchie v. Rupe, 443 S.W.3d 856, 866 (Tex. 2014). We focus on the words of the statute, which best reveal legislative intent. Id. We presume that every word of a statute was used for a purpose, and every omitted word was purposefully not chosen. Texas Law Shield, LLP v. Crowley, 513 S.W.3d 582, 588 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). In determining the plain meaning of a statute, we construe the language according to the rules of grammar and common usage. Id. "As a general principle, we eschew constructions of a statute that render any statutory language meaningless or superfluous." City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 57 (Tex. 2015).

         When reviewing the question of standing, we take the allegations in the plaintiff's petition as true and construe them in favor of the plaintiff. In re H.S., 550 S.W.3d at 155. In addition to the pleadings, we also consider relevant evidence offered by the parties. Id.

         II. The trial court erred when it granted the plea to the jurisdiction and dismissed Harris ...


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