The Austin Court of Appeals recently considered, Adcock v. Cal-Maine Foods, Inc., a lawsuit involving nuisance and trespass claims against a Texas feed mill filed by a neighboring landowner.

Photo by James Baltz 

Background

Cal-Maine operates a chicken-feed mill.  Adcock is a neighboring property owner.

In April 2019, Adcock sued Cal-Maine for nuisance and trespass complaining of the company’s “torment” of him and other residents since it acquired the mill from a prior owner 15 years ago.  He complains of Cal-Maine’s alleged release of “putrid odor of animal waste and chemicals,” loud noises, a “noxious dust-like chemical” that settles on everything in the vicinity, and causing “disgusting, putrid sludge and liquid runoffs” to enter his property. He claims that before Cal-Maine purchased the mill, he had a lush, green yard he enjoyed spending time in, but that now it is a “desolate, weed-infested swamp on which he dare not traverse.”  Throughout the litigation, he amended his complaint several times.  The active complaint at issue dropped the arguments related to odor and dust and focused only on noise and runoff, which he claims was made worse by a concrete curb that increased runoff onto his property.

Adcock moved for partial summary judgment on his trespass claim.  The trial court rejected the following evidence offered by Adcock in support of his motion: (1) Adcock’s affidavit where he stated that he “owns” the property and that Cal-Maine’s construction of the curb “has caused” runoff to enter his property as being conclusory; (2) the photograph of the curb abutted with water because it provides no context for the photograph such as when or by whom it was taken; and (3) the Google Maps photo because it is irrelevant and non-probative as to causation.  Cal-Maine moved for summary judgment on both the trespass and nuisance claims.  The trial court denied Adcock’s motion and granted summary judgment in favor of Cal-Maine. Adcock appealed.

Austin Court of Appeals Opinion

The Austin Court of Appeals affirmed in part and reversed in part.  [Read Opinion here.]

Adcock’s summary judgment motion

Adcock argued that the court erred in denying his motion for summary judgment on his trespass claim. He also argued that the court improperly excluded his summary judgment evidence.

To prove trespass, Adcock was required to show: (1) entry; (2) onto the real property of another; (3) without the property owner’s consent.

Cal-Maine argued that Adcock offered no evidence as to the second element–that he was the owner of the real property.  The court agreed, finding that the trial court properly rejected Adcock’s conclusory affidavit stating he owned the property, but offering no evidence in support of that assertion.  In light of this, Adcock presented no evidence that he was the owner or legal occupier of the property.  Thus, his summary judgment motion was properly denied.

Cal Maine’s summary judgment motion

Adcock argued that the court erred in granting Cal-Maine’s motion for summary judgment.  The court based its ruling on two grounds: (1) The Texas Right to Farm Statute and (2) the applicable statute of limitations for each cause of action.

The court turned first to the Right to Farm issue.  The Texas Right to Farm act operates as a statute of repose prohibiting claims against a lawful agricultural operation once year after the commencement of the conditions or circumstances providing the basis of the action. In this circumstance, it does not matter when Adcock discovered the conditions.  Instead, the focus is on whether the conditions he complained of existed for more than a year.

The court found there to be genuine issues of material fact on this issue–whether the conditions constituting the basis for Adcock’s nuisance and trespass claims existed substantially unchanged for more than a year–prevent the grant of summary judgment.

Adcock filed his suit in April 2019.  He claims the runoff began in 2018, and that in January 2019 when the curb was built, the water was diverted to a different location on his property than in 2018.  He testified that the earliest any liquid entered his property was mid-2018.  He testified this is when Cal-Maine “started doing different things” with respect to their milk operations and washing hopper equipment.  He testified the runoff became worse in January 2019 when the curb was installed.

The court noted that Adcock did not offer a specific date beyond “mid-2018” as to when the runoff began.  Without that information, the court could not say, as a matter of law, whether the original petition was filed within a year of the start of the complained of conditions.  Neither did Cal-Maine offer evidence to establish that the alleged first runoff began more than a year before Adcock filed suit.  Because of this, Cal-Maine did not establish its right to summary judgment on its Right to Farm defense.  Adcock’s second issue was sustained, the trial court was reversed, and the case remanded for further proceedings.

What happens next?

No petition for review was filed with the Texas Supreme Court in this case.

This opinion dealt only with the summary judgment motion’s question of whether, as a matter law, either party was entitled to judgment.  A summary judgment motion may only be granted when there are no disputed facts.  Because the court found a disputed fact as to when the runoff began and whether it was a year prior to the lawsuit being filed, summary judgment was not available.  Instead, the case will be remanded and a trial held to resolve this factual issue and to apply the law to the facts.

Key Takeaways

The Texas Right to Farm statute is an important defense for agricultural operations facing lawsuits involving claims of nuisance and trespass like Adcock brought here.  Critically, the Right to Farm defense is only available if an operation can show it has been lawfully operating for one year or more prior to the lawsuit and the conditions complained of have existed substantially unchanged since the established date of operation.   So while this defense is certainly helpful for agricultural operations, it does not automatically apply in every situation.  This makes record-keeping critical for agricultural operations who may be required to prove when certain activities began on their property in the event of a lawsuit.