Ali Mustafa and Ali Reza Lahijani v. Americo Energy Resources, LLC

Affirmed and Majority and Dissenting Opinions filed April 12, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00202-CV

ALI MUSTAFA AND ALI REZA LAHIJANI, Appellants

V.
AMERICO ENERGY RESOURCES, LLC, Appellee

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2017-68458

DISSENTING OPINION

The majority’s analysis holds that Texas landowners may not avail
themselves of the discovery rule if they do not regularly inspect their lands for
injuries, even when (1) there is no finding that they had any reason to believe that
their lands should be inspected at any particular time and (2) the precise time
within which such an inspection must occur is not specified. This holding is based
upon the facts that (1) “the contamination was discoverable on February 27, 2015”
due to “the discoloration present and visible on the ground at that time” (see
Majority Op. at 9) and (2) Appellants filed their Original Petition more than two
years later. I respectfully believe the majority has overlooked the nuances of
discovery rule jurisprudence, misapplied Texas Supreme Court precedent, and
imposed an unclear burden upon Texas landowners that they did not previously
possess despite refusing to address a dispositive fact during its de novo review.
Therefore, I respectfully dissent.

I. Relevant dates
The relevant dates are as follows:

2010 – the last time either Appellant inspected the land
until 2016;
February 2015 – defendants cleaned out the tanks and removed
products;
March 2016 – plaintiffs inspected the property, discovered a
white area, and believed a tank may have been
leaking; and
October 13, 2017 – plaintiffs filed suit (and subsequently pled the
discovery rule).
II. Analysis
Appellants pled the discovery rule. The discovery rule imposes a duty on
plaintiffs to exercise reasonable diligence to discover facts of negligence or
omission. Bayou Bend Towers Council of Co-Owners v. Manhattan Constr. Co.,
866 S.W.2d 740, 742 (Tex. App.—Houston [14th Dist.] 1993, writ denied).
Knowledge of facts, conditions, or circumstances that would cause a reasonable
person to make inquiry leading to the discovery of the concealed cause of action is
equivalent to knowledge of the cause of action for limitation purposes. Id. at 747.
When the discovery rule applies, claims accrue not when the wrongful conduct
first causes a legal injury, but when the claimant first “knew or in the exercise of
reasonable diligence should have known of the wrongful act and resulting injury.”

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Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 817
(Tex. 2021) (quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996) (citing Trinity River
Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994))). “Knowledge
of injury initiates the accrual of the cause of action and triggers the putative
claimant’s duty to exercise reasonable diligence to investigate the problem, even if
the claimant does not know the specific cause of the injury or the full extent of it.”
LaTouche v. Perry Homes, LLC, 606 S.W.3d 878, 884 (Tex. App.—Houston [14th
Dist.] 2020, pet. denied) (quoting Exxon Corp. v. Emerald Oil & Gas Co., 348
S.W.3d 194, 209 (Tex. 2011)). “As a carefully drawn exception, the discovery rule
balances the conflicting policy benefits of precluding stale or spurious claims
against the risks of precluding meritorious claims that fall outside an arbitrarily set
period.” Syrian Am. Oil Corp., S.A. v. Pecten Orient Co., 524 S.W.3d 350, 360
(Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing S.V., 933 S.W.2d at 6
(quoting Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977))).

Based on Appellants’ plea invoking the discovery rule, Appellee had the
burden at summary judgment to negate its application by conclusively establishing
that (1) the discovery rule does not apply, or (2) if it does apply, the summary
judgment evidence negates it. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d
830, 834 (Tex. 2018) (per curiam) (citing Rhone–Poulenc, Inc. v. Steel, 997
S.W.2d 217, 223-24 (Tex. 1999)); see also Erikson v. Renda, 590 S.W.3d 557, 563
(Tex. 2019). To prove that the discovery rule does not apply, Appellee was
required to prove (1) when the cause of action accrued and (2) “as a matter of law
that there is no genuine issue of material fact about when the plaintiff discovered,
or in the exercise of reasonable diligence should have discovered, the nature of its
injury.” Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605, 608
(Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing KPMG Peat Marwick v.

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Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)); see also
DeWolf v. Kohler, 452 S.W.3d 373, 389 (Tex. App.—Houston [14th Dist.] 2014,
no pet.).

Under the circumstances, Appellee effectively established that the injuries at
issue could not have occurred later than February 2015. However, Appellee did
not prove as a matter of law that there was no genuine issue of material fact as to
when Appellants would have discovered their injury had they exercised due
diligence. Compare Archer v. Tregellas, 566 S.W.3d 281, 290 (Tex. 2018) (“An
injury is inherently undiscoverable when it is ‘unlikely to be discovered within the
prescribed limitations period despite due diligence.’”) (quoting Via Net v. TIG Ins.
Co., 211 S.W.3d 310, 313-14 (Tex. 2006) (per curiam) (quoting Wagner & Brown,
Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001))) with Sw. Energy Prod. Co.
v. Berry-Helfand, 491 S.W.3d 699, 722 (Tex. 2016) (“reasonable diligence is an
issue of fact”); see also Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990
S.W.2d 386, 398 (Tex. App.—Texarkana 1999, pet. denied) (“It is well settled that
a question of when an injury should have been discovered is typically a question of
fact which requires evidence and findings.”) (emphasis added) (citing Neel v.
HECI Expl. Co., 942 S.W.2d 212, 221 (Tex. App.—Austin 1997), rev’d on other
grounds, 982 S.W.2d 881 (Tex. 1998); Hassell v. Mo. Pac. R.R. Co., 880 S.W.2d
39, 43 (Tex. App.—Tyler 1994, writ denied); Enterprise-Laredo Assocs. v.
Hachar’s, Inc., 839 S.W.2d 822, 838 (Tex. App.—San Antonio 1992), writ denied,
843 S.W.2d 476 (Tex. 1992) (per curiam)); Hohertz v. Durham, 224 S.W. 549, 551
(Tex. App.—Austin 1920, no writ) (“In our opinion, however, he has alleged facts
which, if true, would at least make it a question for the court or jury, as the case
may be, to determine whether appellant, in all the circumstances, has used such
diligence as an ordinarily prudent person would have exercised, or has excused the

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failure to sooner have a survey made.”) (citations omitted); cf. Mytel Int’l Inc. v.
Turbo Refrigerating Co., 689 S.W.2d 315, 318 (Tex. App.—Fort Worth 1985, no
writ). Therefore, I believe the trial court abused its discretion when it granted
summary judgment.

The majority states its analysis is supported by the Texas Supreme Court’s
decision in ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538 (Tex. 2017),
but I respectfully believe this reliance upon such a readily distinguishable case
reveals both the nature and magnitude of the majority’s error. There, one of the
owner-plaintiffs “had lived on” the property at issue during the relevant time
period (id. at 541), “knew of many oil spills” around the property during the
relevant time period, and considered them to be “everywhere”. Compare id. at
541, 543 with Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 540 (Tex. App.—
Houston [14th Dist.] 1999, pet. denied) (“The discovery rule . . . tolls the running
of the statute of limitations until the plaintiff discovered or should have discovered
the nature of his injury.”) (citing Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex.
1997)). The supreme court’s inherently undiscoverable analysis proceeded to rely
upon these facts. See ExxonMobil Corp., 511 S.W.3d at 544 (“Soil contamination
from oil spills is unquestionably objectively verifiable, but it is not inherently
undiscoverable within the limitations period. On the contrary, we have previously
stated that application of the discovery rule in nuisance cases is rare, as plaintiffs
typically learn of unreasonable discomfort or annoyance promptly. Nuisances
caused by oil and gas operations prove no different. McDaniel testified that she
often drove across the ranch, observing ExxonMobil’s operations, and seeing and
being told of oil spills and cleanup operations. There was nothing inherent in the
possibility of contamination that kept the Ranch from hiring [its expert] sooner
than it did.”) (emphasis added). ExxonMobil is even further distinguishable

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because it involved an active surface oil spill. Despite the majority’s extrapolation,
ExxonMobil never declares anything about the discoverability of surface injuries
for landowners who do not live on the injured property because those were not the
facts presented.

While I agree that analyses concerning statutes of limitations involve
questions of law that can be decided via summary judgment, I am aware of no
precedent, statute, or duty (aside from those associated with adverse possession)
that mandates all Texas landowners to travel (sometimes considerable distances) to
various properties on which they do not reside within an unspecified period of time
to search for potential injuries. Cf. Archer, 566 S.W.3d at 291 (one who “already
owns the land . . . is not required to search the records every morning in order to
ascertain if something has happened that affects his interests or deprives him of his
title”) (citing Cox v. Clay, 237 S.W.2d 798, 804 (Tex. App.—Amarillo 1950, writ
ref’d n.r.e.)). Without any such precedent or authority, I find it particularly
difficult to accept that a court can decide as a matter of law that (1) injuries like the
one at bar accrue when they occur, (2) Appellants’ visitation of the land
approximately 13 months after Appellee departed was not an exercise of
reasonable diligence under the circumstances, (3) Appellants’ original petition was
outside the statute of limitations when it was filed approximately 19 months later,
and (4) knowing a party has departed a landowner’s property now requires
reasonable Texans to “make inquiry leading to the discovery of the concealed
cause of action” in some unspecified amount of time. See Bayou Bend Towers
Council of Co-Owners, 866 S.W.2d at 747 (“Knowledge of facts, conditions, or
circumstances which would cause a reasonable person to make inquiry leading to
the discovery of the concealed cause of action is in the law equivalent to
knowledge of the cause of action for limitation purposes.”) (citing Stephens v.

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James, 673 S.W.2d 299, 303 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)). Based
on Appellee’s own admission that February 27, 2015 would be the last relevant
date on which the injury could have occurred, the majority’s decision creates a
new, unprecedented, unclear, and unwarranted rule that visiting property on which
one does not live every 13 months is not an exercise of due diligence. Without
authority to support its implicit conclusion under an erroneous application of
ExxonMobil, I respectfully disagree.

Finally, the majority’s analysis is based upon a significant error that it
refuses to address despite our de novo review; i.e., Appellee’s failure to secure
relevant findings. Specifically, Appellee’s invocation of the statute of limitations
required it to “plead, prove, and secure findings to sustain [its] plea of limitations.”
Barras v. Barras, 396 S.W.3d 154, 169 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (emphasis added) (citing Woods v. William M. Mercer, Inc., 769
S.W.2d 515, 517 (Tex. 1988)). “A party who fails to secure findings to sustain his
plea of limitations waives the defense.” Id. (citing Cooper v. Cochran, 288 S.W.3d
522, 531 (Tex. App.—Dallas 2009, no pet.) (concluding party waived statute of
limitations defense where he never requested any relevant findings of fact);
Medistar Corp. v. Schmidt, 267 S.W.3d 150, 162 (Tex. App.—San Antonio 2008,
pet. denied) (citing Woods, 769 S.W.2d at 517, in concluding same)); see also
Cooper, 288 S.W.3d at 531 (“A party asserting an affirmative defense in a trial
before the court must request findings in support of the defense to avoid waiver.”)
(citing Alma Invs., Inc. v. Bahia Mar Co-Owners Ass’n, 999 S.W.2d 820, 822
(Tex. App.—Corpus Christi 1999, pet. denied)). Here, Appellee did not request or
secure findings of fact concerning its statute of limitations defense (see Majority
Op. at 8) (“the order . . . contains no findings”). Therefore, Appellee’s defense was
waived as to the summary judgment before us. Barras, 396 S.W.3d at 169.

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III. Conclusion
Based on the foregoing, I dissent from the majority’s de novo affirmation of
summary judgment based on a waived affirmative defense that is unsupported by
findings, evidence, statutes, or case law and conclude Appellee failed to prove as a
matter of law that landowners do not exercise due diligence when they: (1) do not
live on the property, (2) receive no notice of injuries to their property, and (3) visit
their property approximately 13 months after a defendant departs under the same
or similar circumstances. Even after this de novo review, it is still unclear as to
when Appellants should have discovered their injuries; therefore, Appellee failed
to meet its summary judgment burden as a matter of law. Velocity Databank, Inc.,
456 S.W.3d at 608 (citing KPMG Peat Marwick, 988 S.W.2d at 748).

/s/ Meagan Hassan
Justice

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant
(Poissant, J., majority).

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