Conclusory “Boilerplate” Affidavits Can Not Rescue Nuisance Case from Dismissal

For permanent injuries to property caused by nuisance or trespass, the plaintiff must file suit within two years of the first injury, or the claim is barred by limitations. In Town of Dish v. Atmos Energy, the plaintiffs tried to claim that their injuries from noise and odors only started when the last of several independently owned facilities, a metering station, began operating.  They denied that the injuries were due to several compressor stations, all of which began emitting and making noise more than two years before suit.

The Texas Supreme Court determined that the claims were barred by limitations as to all defendants, because the plaintiffs had no proof that the metering station actually caused or contributed to their injuries.

Plaintiffs Tried to Overcome the Limitations Bar

To try to avoid the limitations bar, the plaintiffs alleged that the metering station contributed to the noise and odor, resulting in a synergistic effect, so that the injuries did not begin until the metering station was completed.

Plaintiffs Failed to Submit Competent Evidence that the Metering Station Injured Them

The defendant responsible for the metering station submitted evidence that its facility could not have contributed to any injuries. The metering station has no compressors, no diesel engines, and no venting capability.  The defendant claimed that the metering station could not be heard off of its property.

In response, the plaintiffs submitted eighteen nearly identical affidavits, claiming that the noise became worse after the installation of the metering station, and that only at that time did the plaintiffs appreciate the nature of the chemicals emitted from the group of facilities.

Conclusory, Boilerplate Affidavits Are Not Evidence

The Texas Supreme Court determined that these nearly identical conclusory affidavits did not raise a fact issue that the metering station, or any other event within two years of the filing date, contributed to injuries beyond what previously existed. Therefore, the Court dismissed all of the claims as to all plaintiffs and all defendants.

Unanswered Questions

In an earlier Alert, I mentioned some issues that might be addressed in this case. Due to the nature of this ruling, the Court did not answer other questions that the case could have raised.

One key unanswered question concerns the potential risk to facilities that have been operating more than two years. Are they at risk of a nuisance suit if another facility begins operating and initiates, in combination with the older facilities, a new injury?

Another unanswered question concerns compliance with state environmental regulations. The defendants alleged that they were in compliance with the extensive regulations promulgated by the Texas Commission on Environmental Quality (“TCEQ”).  For claims of nuisance and airborne trespass, if facilities operate in compliance with TCEQ’s extensive regulatory program, are they still at risk for nuisance or trespass claims?

These questions remain unanswered.

For a copy of the Court’s opinion click here.


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