Key Defensive Strategies to Common Law Claims (Standing)

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

Standing is a common defensive strategy in response to environmental property damage claims.  Standing is a component of a court’s subject-matter jurisdiction.[1]  For more than 100 years, the Texas Supreme Court has recognized that a cause of action for injury to real property accrues when the injury is committed.[2]  The right to sue is a personal right that belongs to the person who owns the property at the time of the injury, and the right to sue does not pass to a subsequent purchaser of the property unless there is an express assignment of the cause of action.[3] A general warranty deed is insufficient to assign a cause of action.[4]  A party can obtain a retroactive assignment. [5]  However, it is probably best to obtain the assignment before filing suit.

The whole secret of a successful life is to find out what is

one’s destiny to do, and then do it.” Henry Ford

It should be noted that there is some disagreement among several Texas courts on whether the characterization of an injury as temporary or permanent is relevant to the issue of standing.[6] At least two courts have stated that prior owners can sue for damages to land even after they conveyed the land so long as they owned it at the time of the contamination.[7] However, one court recently held that a previous owner was foreclosed from asserting a cost-recovery claim under CERCLA due to language in his deed which conveyed all causes of action for existing damage to the land and improvements, and did not reserve to him the right to recover the remediation costs from responsible third parties.[8]  The court reasoned that once he assigned his rights to pursue a claim against a third party to another, he retained no right to sue a third party for cleanup costs.[9]

Key Points

  • Standing is a component of a court’s subject-matter jurisdiction.    
  • A cause of action for injury to real property accrues when the injury is committed.  
  • The right to sue is a personal right that belongs to the person who owns the property at the time of the injury, and the right to sue does not pass to a subsequent purchaser of the property unless there is an express assignment of the cause of action. 
  • There is some disagreement on whether the characterization of an injury as temporary or permanent is relevant to the issue of standing. 
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[1] DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008).

[2] Id. (citing Exxon Corp. v. Emerald Oil & Gas Co., L.C., 331 S.W.3d 419, 424 (Tex.2010)).

[3] Id.

[4] See H.O. Richey v. Stop N Go Markets of Texas, 654 S.W.2d 430, 431 (Tex. 1983).

[5] DBMS Investments, L.P. v. ExxonMobil Corp., 2009 WL 1974646, at *1 n.3 (Tex. App.—Corpus Christi 2009, pet. denied).

[6] Compare Denman v. Citgo Pipeline Co., 123 S.W.3d 728, 734–35 (Tex. App.—Texarkana 2003, no pet.) (concluding that characterization of injury as permanent or temporary is “not important to the inquiry on standing”), Exxon Corp. v. Pluff, 94 S.W.3d 22, 28 (Tex. App.—Tyler 2002, pet. denied) (agreeing with Eastland Court of Appeals that fact of injury is critical issue, not characterization of injury), and Senn v. Texaco, Inc., 55 S.W.3d 222, 226 (Tex. App.—Eastland 2001, pet. denied) (“The distinction between temporary and permanent damages is meaningless with respect to the issue of standing.”) with Denman v. SND Operating, L.L.C., No. 06–04–00061–CV, 2005 WL 2316177, at *4 (Tex. App.—Texarkana Sept.23, 2005, no pet.) (mem.op.) (stating that distinction between temporary and permanent injuries is relevant to determining when cause of action accrued, and thus may be relevant to standing to extent new injury occurred after property was purchased by claimant).

[7] Clems Ye Olde homestead Farms LTD v. Briscoe, 2008 WL 5146964, at * 1 (E.D. Tex. 2008); Richey v. Stop N Go Markets of Texas, 654 S.W.2d 430, 432 (Tex. 1983).

[8] Elite Operations, Inc. v. Union Pacific Railroad, Co., 2015 Wl 5474434, at *5 (S.D. Tex. 2015).

[9] Id. (citing See Pringle v. Atlas Van Lines, 14 F.Supp.3d 796, 800 (N.D. Tex. 2014)).

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