STREET CO INC v. PILGRIM ENTERPRISES INC 11 17 PLC 11 1990

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Court of Appeals of Texas,Houston (1st Dist.).

R.R. STREET & CO., INC., Appellant, v. PILGRIM ENTERPRISES, INC.;  Pilgrim Convenience, Inc.;  R & G No. 1, Inc.;  R & G No. 2, Inc.;  R & G No. 3, Inc.;  Pilgrim Laundry Company, Inc.;  Pilgrim Equipment Co., Inc.;  R.F.S., Inc. No. 8;  R.F.S., Inc. No. 11;  R.F.S., Inc. No. 17;  S & R No. 2, Ltd.;  PLC No. 11 Joint Venture;  Isabella Enterprises, Inc. Liquidating Trust d/b/a Pilgrim Enterprises;  Isabella Convenience, Inc. Liquidating Trust d/b/a Pilgrim Convenience Pilgrim Enterprises, Inc.;  Jack J. Turk;  Turk Investments, Ltd., L.L.P.;  Robert Turk as Trustee to the Jerald Scott Turk 1990 Heritage Trust;  Marilyn Altman Rose;  Jayne Terri Paul;  Cyndi Altman;  and Craig Altman, Appellees.

Pilgrim Enterprises, Inc.;  Pilgrim Convenience, Inc.;  R & G No. 1, Inc.;  R & G No. 2, Inc.;  R & G No. 3, Inc.;  Pilgrim Laundry Company, Inc.;  Pilgrim Equipment Co., Inc.;  R.F.S., Inc. No. 8;  R.F.S., Inc. No. 11;  R.F.S., Inc. No. 17;  S & R No. 2, Ltd.;  PLC No. 11 Joint Venture;  Isabella Enterprises, Inc. Liquidating Trust d/b/a Pilgrim Enterprises;  Isabella Convenience, Inc. Liquidating Trust d/b/a Pilgrim Convenience Pilgrim Enterprises, Inc.;  Jack J. Turk;  Turk Investments, Ltd., L.L.P.;  Robert Turk as Trustee to the Jerald Scott Turk 1990 Heritage Trust;  Marilyn Altman Rose;  Jayne Terri Paul;  Cyndi Altman;  and Craig Altman, Appellants, v. R.R. Street & Co., Inc., Appellee.

No. 01-98-01429-CV.

Decided: August 31, 2001

Panel consists of Justices MIRABAL, NUCHIA, and PRICE.* Taylor M. Hicks, Houston, Michael A. Hatchell, Tyler, for Appellant. Michael A. Pohl, Law Offices of Michael Pohl, Houston, Alice Oliver-Parrott, Burrow & Parrott, L.L.P.,Maria Teresa Arguindegui, Jean C. Frizzell, Houston, for Appellee. David Kent Mestemaker, Bellaire, for Intervenor. Jeff Nobles,N. Terry Adams, Jr., Beirne, Maynard & Parsons L.L.P., Houston, for Cross-Appellants.

OPINION

This appeal arises from a suit brought by Pilgrim Enterprises, Inc., and related entities 1 (collectively “Pilgrim”), and Jack Turk, and related entities and individuals (collectively “Turk”),2 against R.R. Street & Co., Inc. (Street) to recover environmental cleanup costs and other damages incurred by Pilgrim and Turk at their respective dry-cleaning plants.

Street appeals the trial court's judgment awarding Pilgrim $1.5 million under the Texas Solid Waste Disposal Act (SWDA).3  In two issues, Street contends that (1) Street is not a “responsible party” as defined by SWDA, and (2) the trial court erred in denying Street a jury trial on Pilgrim's SWDA claim.   Further, Pilgrim and Turk appeal, contending the jury's failure to find Street liable under various common law theories was against the great weight and preponderance of the evidence.   Pilgrim also contends the trial court erred in granting Street's motion for directed verdict on Pilgrim's breach of fiduciary duty claim.   For the reasons set forth below, we affirm in part, and we reverse and remand in part.

FACTUAL BACKGROUND

The Robertson family bought Pilgrim Laundry & Cleaners in 1945 and operated dry-cleaning plants in Harris and Bexar Counties until Pilgrim sold its assets in 1995.   At its peak, Pilgrim had 20 dry-cleaning plants.   In 1994, an environmental assessment, required as part of Pilgrim's asset sale, revealed that its dry-cleaning plants were contaminated with the dry-cleaning solvent perchloroethylene (PCE).   Pilgrim notified the Texas Natural Resource and Conservation Commission (TNRCC) of the contamination and agreed to voluntarily remediate the sites.

Street, a supplier of dry-cleaning products and services, began its business relationship with Pilgrim in the 1950's.   Over the years, Street supplied PCE to Pilgrim and, beginning in the 1970's, sold dry-cleaning equipment to Pilgrim.

Harold Corbin, a Street service technician, serviced the Pilgrim account from 1958 until July 1997.   During this time, Corbin developed a close relationship with Pilgrim and the Robertson family. Corbin visited Pilgrim's plants regularly and had complete access to its facilities.   Pilgrim relied on Corbin to give advice on dry-cleaning operations, to check and service equipment, and, in later years, to complete written evaluations of Pilgrim's operations.

Because of its high cost, Pilgrim, like other dry-cleaners, recycled PCE for reuse.   Street manufactured stills and filter units, which cleaned the used PCE. As a result of this cleaning process, certain waste materials were produced.   The used filter cartridges had to be replaced about once a month and discarded.   The dirty PCE was boiled in the stills, producing a still residue containing PCE, which also had to be discarded.

Until the mid-1980's, it was common practice for dry-cleaners to discard the still residues and spent filter cartridges in the trash.   In 1986, the federal government began requiring dry-cleaners to dispose of these wastes at waste disposal facilities.   Before the change in the regulations, Pilgrim threw these wastes in the trash like other dry-cleaners.   In 1985, Pilgrim hired a waste disposal company, recommended by Street, to properly dispose of the wastes.

Another waste produced as a result of the recycling process is “separator water.”   Each still manufactured by Street contained a water separator that removed water from the used PCE. Separator water was also generated at other stages of the dry-cleaning and recycling processes.

Because PCE is water-soluble, separator water contains trace amounts of PCE, even after separation.   Consistent with advice received from Street, Pilgrim discharged the separator water into buckets and then poured it into the public sewer system without further treatment.   In 1995, Pilgrim began using an evaporation system to reclaim the soluble PCE from the separator water before disposing of it.

PROCEDURAL HISTORY

In November 1995, Pilgrim filed suit against Street and numerous other PCE and equipment manufacturers and distributors to recover the cost of the environmental cleanup at 16 Pilgrim plants (11 in Houston and 5 in San Antonio) contaminated with PCE. Pilgrim asserted causes of action based on negligence, products liability, fraud, breach of fiduciary duty, and the Deceptive Trade Practices Act (DTPA).   Pilgrim also brought a cost recovery action under SWDA requesting the trial court to apportion its environmental cleanup costs against the defendants.   At trial, Pilgrim presented evidence that the cost of the remediation for the sites would be $7,094,940.   All defendants but Street settled with Pilgrim before the case went to the jury.

Turk, the property owner of three other Pilgrim sites located at 7901 Hillcroft, 9535 Westheimer, and 7430 Long Point in Houston, intervened into the suit and asserted claims against Pilgrim and the other defendants.   Pilgrim settled with Turk prior to trial and the two were aligned against Street during trial.   Turk asserted common law claims for nuisance, design defect, marketing defect, negligence, and gross negligence against Street, but did not assert a SWDA claim.   At trial, Turk presented evidence that it would cost $3.9 million to remediate its three properties.

During trial, the trial court sanctioned Street by striking all of its affirmative defenses because of discovery abuse.4  At the close of Pilgrim's evidence, the trial court granted a directed verdict against Pilgrim on its breach of fiduciary duty claim against Street.   At the end of the nine-week trial, the jury found no liability as to Street with regard to Pilgrim's and Turk's common law claims and Pilgrim's DTPA claim.   The trial court determined that Pilgrim's SWDA claim should be decided by the court, not the jury.   The trial court awarded Pilgrim $1.5 million under SWDA and entered findings of fact and conclusions of law on that issue.

DISCUSSION

A. Street's Appeal

In its first issue, Street contends that it was denied its constitutional right to a jury trial when the trial court refused to submit Pilgrim's SWDA claim to the jury.   In its second issue, Street argues that it is not liable under SWDA, as a matter of law, because it is not a “responsible person” under the act.   Because Street's issues are interrelated, we will consider them together.

1. Constitutional Right to Jury

Pilgrim brought a cost recovery action against Street seeking its environmental cleanup costs under SWDA section 361.344.5  See Tex. Health & Safety Code Ann. §§ 361.271(a)(3), 361.344 (Vernon 2001).   Pilgrim alleges that Street is liable under SWDA, as a matter of law, because it arranged for the disposal of solid waste at Pilgrim's facilities.   See Tex. Health & Safety Code Ann. §§ 361.271(a)(3), 361.344.   Pilgrim further contends that Street was not entitled to a jury trial on its SWDA claim because whether Pilgrim was entitled to recover its environmental cleanup costs under SWDA was a question of law for the court to decide.   The trial court agreed with Pilgrim.

 Because SWDA enables Pilgrim to recover an equitable share of its costs of remediation, Pilgrim's cost recovery action is a statutory contribution claim.   See Compton v. Texaco, Inc., 42 S.W.3d 354, 362 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (referring to SWDA section 361.344 cost recovery action as “statutory contribution”);  see also Tex. Jur. 3d Contribution and Indemnification § 3 (1997) ( “[Contribution] proceeds on the acknowledged principles of equity and justice which require that one jointly bound by a common obligation to pay the debt of another who pays more than his ratable share shall be reimbursed by others jointly bound.”).   The right to contribution is based in equity.  U.S. Fid. & Guar. Co. v. Century Indem. Co., 78 S.W.2d 737, 738 (Tex.Civ.App.-El Paso 1935, writ dismissed);  Brown & Root v. United States., 92 F.Supp. 257, 261 (D.C.Tex.1950) (applying Texas Law, court stated that origin of contribution “lies in the ancient doctrine of equity courts, now enforced at law, that those who are jointly liable will share the burden equally”);  see also 18 C.J.S. Contribution, §§ 3, 6 (1990).

 There is no common-law right to a jury trial in equity.  Casa El Sol-Acapulco, S.A. v. Fontenot, 919 S.W.2d 709, 715 (Tex.App.-Houston [14th Dist.] 1996, writ dism'd by agr.);  Trapnell v. Sysco Food Servs., Inc., 850 S.W.2d 529, 543 (Tex.App.-Corpus Christi 1992), aff'd, 890 S.W.2d 796 (Tex.1994).   However, two provisions of the Texas Constitution insure the right to a jury trial.   The first is contained in the Texas Bill of Rights.   See Tex. Const. art. I, § 15.   This provision guarantees “the right to a jury in all actions where that right existed at the time the Constitution was adopted” in 1876.  Id.;  State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 291 (Tex.1975).  “Because the English chancery were judges of both fact and law at the time our constitution was enacted, this provision does not alter the common law tradition eschewing juries in equity actions.”  Casa El Sol-Acapulco, 919 S.W.2d at 715.

 The second provision is found in the Judiciary Article.   See Tex. Const. art. V, § 10.   The Judiciary Article protects the right to have a jury resolve fact questions in all “causes” brought in the district courts.   Id.;  see also Credit Bureau, 530 S.W.2d at 292-93.   The law in Texas is that the right to a jury trial extends to disputed issues of fact in equitable as well as legal proceedings.  Casa El Sol-Acapulco, 919 S.W.2d at 715;  Jeter v. Associated Rack Corp., 607 S.W.2d 272, 277-78 (Tex.Civ.App.-Texarkana 1980, writ ref'd n.r.e.).

 Although the right to jury trial under the Judiciary Article is potentially broader than under the Bill of Rights because it covers all “causes” regardless of whether a jury was available in 1876, it can also be narrower because not all adversary proceedings are “causes” within the meaning of the Judiciary Article.  Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 527 (Tex.1995);  Credit Bureau, 530 S.W.2d at 293.   For example, the Texas Supreme Court observed in Credit Bureau that judicial review of administrative orders does not fall within the group of adversary proceedings for which a jury trial is constitutionally mandated.   See Credit Bureau, 530 S.W.2d at 293;  see also Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 450-51 (Tex.1993).6

 Thus, whether Pilgrim's SWDA claim falls within the ambit of the Judiciary Article depends on whether it is a “cause.”   The Credit Bureau court adopted several broad meanings of “cause,” including:  “Any question, civil or criminal, litigated or contested before a court of justice ․” and “an legal process which a party institutes to obtain his demand or by which he seeks his right.” See Credit Bureau, 530 S.W.2d at 292-93 (internal citations omitted).   Applying these broad definitions, a SWDA cost recovery action, such as the one in this case, is a “cause” for purposes of the Judiciary Article.7  As such, there exists a right to have a jury determine any fact issues that must be resolved with regard to Pilgrim's entitlement to recover its cleanup costs from Street under SWDA.8 See State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979) (stating that in an equitable proceeding, “ultimate issues of fact are submitted for jury determination”).

2. Texas Solid Waster Disposal Act

 To succeed on a SWDA cost recovery claim, a plaintiff must show that (1) the defendant is a “person responsible for solid waste” as provided in section 361.271; 9  (2) the TNRCC's commission approved the remedial or removal action taken by the plaintiff to cleanup the property;  (3) the remedial or removal action is “necessary to address a release or threatened release” of a solid waste into the environment;  (4) the costs of the remedial or removal action are “reasonable and necessary;” and (5) the plaintiff made reasonable attempts to notify the defendant of the existence of the release and that it intended to take steps to eliminate the release.   See Tex. Health & Safety Code Ann. § 361.271, § 361.344 (Vernon 2001).   After these elements have been established, the trial court then determines the amount of the plaintiff's recovery by apportioning the costs of the remedial or removal action among the “persons responsible for solid waste” by applying the equitable factors listed in SWDA section 361.343.10  Id. § 361.271, § 361.343, § 361.344 (Vernon 2001).

3. Person Responsible for Solid Waste

 With respect to the first element, we begin our analysis by noting that interpretation of a statute is a question of law, which we review de novo.   See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997);  Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 119 (Tex.App.-Houston [1st Dist.] 2000, no pet.).   Unless there is a dispute concerning the factual issues that create “arranger” status making a person responsible for solid waste, the question of “arranger” status is a question of law for the court to decide.   See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992) (holding issue of whether condition is a “premise defect” or a “special defect” under Texas Tort Claims Act is question of duty involving statutory interpretation and thus is issue of law for court to decide);  Kenneth H. Hughes Interests v. Westrup, 879 S.W.2d 229, 234 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (holding issue of whether plaintiff is “consumer” under the DTPA is a question of law for court to determine).

The basic facts on which Pilgrim relies are not disputed by Street.   Specifically, Pilgrim argues the following undisputed facts establish Street's arranger status:

1.  Street marketed equipment (filter units, cartridges, stills and water separators) which, in their normal use, produced hazardous waste.   In the 1970's and early 1980's, Street “expected” and “intended” its customers to drain its used filter cartridges overnight and then discard them in dumpsters, as was the industry practice at the time.11

2.  Street's owner's manuals recognized and discussed that PCE leaks could occur relating to the check valves on Street's filter units.

3.  Street provided technical services to Pilgrim, including recommending certain dry-cleaning equipment and processes, supervising the installation of equipment, periodic and routine inspection and maintenance of equipment, and periodic testing of equipment.

4.  Street (i) recommended and introduced Pilgrim to Safety-Kleen and AAD Disposal, companies that Pilgrim used for waste disposal, (ii) acted as a liaison between them, and (iii) helped negotiate lower fees between the companies and Pilgrim.

5.  Over the years, Street employee, Harold Corbin, poured PCE, which had been tested to determine detergent levels, into the sinks and commodes at Pilgrim's plants.12

6.  As a result of the handling of PCE, the soil and groundwater at Pilgrim's 16 plants was contaminated with PCE.

 No published Texas case discusses the issue of SWDA arranger liability;  this is a case of first impression.   Importantly, SWDA does not define the term “arranged.”   In construing SWDA, our objective is to determine and give effect to the intent of the legislature.  Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998);  City of Houston v. Morua, 982 S.W.2d 126, 129 (Tex.App.-Houston [1st Dist.] 1998, no pet.).   In so doing, we look first to the plain and common meaning of the statute's words.  Liberty Mut. Ins., 966 S.W.2d at 484;  see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999).   We also consider the entire act, its nature and object, and the consequences that would follow from each construction.   See Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex.1999).   We must reject any statutory interpretation that defeats the legislative purpose.   See id.

 SWDA appears to have been modeled after a federal environmental statute:  the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA).13  CERCLA was enacted “as a comprehensive plan to handle the nation's hazardous waste problems and to force those responsible for creating hazardous waste problems to bear the cost of their actions.”   Jordan v. Southern Wood Piedmont Co., 805 F.Supp. 1575, 1578 (S.D.Ga.1992) (internal quotation marks omitted).   CERCLA, like SWDA, allows a party, who has incurred cleanup costs, to bring a contribution claim against

any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility ․ owned or operated by another party or entity and containing such hazardous substances․

42 U.S.C. §§ 9613(f), 9607(a)(3) (1997).   When the Texas Legislature adopts a statute with wording substantially similar to a federal statute, we presume, absent some indication to the contrary, that the legislature intended to adopt the construction placed on that wording by the federal courts, and we look to federal cases as a guide in interpreting the state statute.   Blackmon v. Hansen, 140 Tex. 536, 169 S.W.2d 962, 964-65 (Tex.1943);  Summers v. WellTech, Inc., 935 S.W.2d 228, 232-33 (Tex.App.-Houston [1st Dist.] 1996, no writ);  Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 457 (Tex.App.-Corpus Christi 2000, no pet.).

CERCLA also does not define “arranged for,” and the statute's legislative history provides little guidance for interpreting the phrase.   See United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1380 n. 8 (8th Cir.1989).   However, there exists abundant federal case law discussing who can be held liable as an “arranger” under CERCLA.

Because Congress used broad language and “liberal judicial interpretation is consistent with CERCLA's ‘overwhelmingly remedial’ statutory scheme,” federal courts have interpreted CERCLA broadly.  Aceto, 872 F.2d at 1380 (quoting United States. v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 733 (8th Cir.1986));  accord Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990);  see also 3550 Stevens Creek Assocs. v. Barclays Bank, 915 F.2d 1355, 1362-63 (9th Cir.1990).   Accordingly, federal courts have liberally interpreted the phrase “arranged for.”  Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917, 929 (5th Cir.2000);  Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., 99 F.Supp.2d 1123, 1145 (E.D.Cal.2000).

 The Texas Legislature enacted SWDA “to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste.”   Tex. Health & Safety Code § 361.002 (Vernon 2001).   Reading SWDA as a whole, its plain language indicates a legislative intent to facilitate and encourage the prompt cleanup of solid waste.   And, like CERCLA, SWDA's cost recovery provisions are clearly intended to “force those responsible for creating hazardous waste problems to bear the cost of their actions.”  Jordan, 805 F.Supp. at 1578.   Because it is a remedial statute, we must give SWDA a liberal construction, rather than one that would defeat the very purpose for which it was enacted.14  See Burch v. City of San Antonio, 518 S.W.2d 540, 544 (Tex.1975) (stating remedial statutes must be given “the most comprehensive and liberal construction possible”);  accord City of Mason v. West Tex. Utils. Co., 150 Tex. 18, 237 S.W.2d 273, 280 (1951).   However, it is worth noting that from the outset, federal courts have recognized that the liability for releases under section 9607(a)(3) is not endless.   See South Florida Mgm't Dist. v.Montalvo, 84 F.3d 402, 409 (11th Cir.1996);  see also Interstate Non-Ferrous, 99 F.Supp.2d at 1145.

 In determining CERCLA arranger status, courts have refused to apply a bright line test;  rather, such determination has been made on a case-by-case basis using the guidelines of the relevant case law along with other pertinent factors in each individual instance.  Freeman Assocs., L.P. v. Glaxo Wellcome, Inc., 189 F.3d 160, 164 (2d Cir.1999);  Pneumo Abex Corp. v. High Point, Thomasville and Denton R.R. Co., 142 F.3d 769, 775 (4th Cir.1998);  see also United States v. Cello-Foil Prods., Inc., 100 F.3d 1227, 1232 (6th Cir.1996).   Thus, it is appropriate for courts to take the “totality of circumstances” into consideration when determining arranger status.   Geraghty & Miller, 234 F.3d at 929.

 However, as one commentator noted, courts have been “less than consistent” in analyzing arranger liability.   Anna Marple Buboise, Expanding the Scope of Arranger Liability under CERCLA, 43 U. Kan. L.Rev. 469, 473 (1995);  see also David W. Lannetti, “Arranger Liability” Under the Comprehensive Environmental Response, Compensation, And Liability Act (CERCLA):  Judicial Retreat From Legislative Intent, 40 Wm. & Mary L.Rev. 279 (1998) (discussing various methods courts have used to evaluate arranger liability).   Though inconsistencies exist between the various federal circuits on what is required for CERCLA arranger liability to attach, as a general proposition, the circuits agree that there must be a “nexus” between the potentially responsible party and the disposal of the hazardous substance.   See Geraghty & Miller, 234 F.3d at 929 (stating that nexus is required before party is labeled as an arranger);  General Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 286 (2d Cir.1992) (same).

Generally, the nexus must be premised on the conduct of the party in respect to the disposal of the hazardous waste.  United States v. Arrowhead Ref. Co., 829 F.Supp. 1078, 1095 (D.Minn.1992).   As one court noted:

Almost all courts that have held defendants liable as arrangers have found that the defendant had some actual involvement in the decision to dispose of waste․ The few courts that have held an entity responsible as an arranger in the absence of actual involvement have found that nexus between the potentially liable party and the disposal of hazardous substances to be some obligation to arrange for or direct their disposal.

AAMCO, 962 F.2d at 286.

In several cases, courts have considered whether the defendant possessed the intent to dispose of a substance at the time of a transaction in determining CERCLA arranger liability.   See Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 751 (7th Cir.1993);  Ekotek Site PRP Comm. v. Self, 932 F.Supp. 1328, 1336 (D.Utah 1996);  G.J. Leasing Co. v. Union Elec. Co., 854 F.Supp. 539, 559-560 (S.D.Ill.1994), aff'd, 54 F.3d 379 (7th Cir.1995).   The Eighth Circuit criticized this approach, stating that requiring an intent to arrange for disposal would frustrate CERCLA's goal of requiring responsible parties to pay for hazardous substance cleanup.  Aceto Agric. Chems., 872 F.2d at 1380-81.   Indeed, most courts have repeatedly held CERCLA to be a strict liability statute.   See In re Bell Petroleum Servs., Inc., 3 F.3d 889, 897 (5th Cir.1993);  Aceto Agric. Chems., 872 F.2d at 1377;  Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989);  United States v. Monsanto, 858 F.2d 160, 167 (4th Cir.1988).

In United States v. Cello-Foil Prods., Inc., the Sixth Circuit explains and reconciles the disparity between the intent requirement and strict liability nature of CERCLA:

At first blush, discussing state of mind in a CERCLA case appears inappropriate.   After all, if the tortured history of CERCLA litigation has taught us one lesson, it is that CERCLA is a strict liability statute․ Notwithstanding the strict liability nature of CERCLA, it would be error for us not to recognize the indispensable role that state of mind play in determining whether a party has “otherwise arranged for disposal ․ of a hazardous substance.”

We derive the intent element from the canons of statutory construction.   “Otherwise arranged” is a general term following in a series two specific terms and embraces the concepts similar to those of “contract” and “agreement.”   All of these terms indicate that the court must inquire into what transpired between the parties and what the parties had in mind with regard to disposition of the hazardous substance.   Therefore, including an intent requirement into the “otherwise arranged” concept logically follows the structure of the arranger liability provision.

[E]xamining state of mind or ascertaining intent at the contract, agreement, or other type of arrangement stage does not undermine the strict liability nature of CERCLA.   The intent inquiry is geared only towards determining whether the party in question is a potentially liable party.   Once a party is determined to have the requisite intent to be an arranger, then strict liability takes effect.   If an arrangement has been made, that party is liable for damages caused by the disposal regardless of the party's intent that the damages not occur.   Moreover, a party can be responsible for “arranging for” disposal, even when it has no control over the process leading to the release of substances.

Cello-Foil Prods., 100 F.3d at 1231-32 (6th Cir.1996) (internal citations omitted).

Courts have also discussed the issue of whether the potentially responsible party must actually have “owned” or “possessed” the hazardous substance.   In United States v. Northeastern Pharmaceutical & Chemical Co., the Eighth Circuit stated that “[i]t is the authority to control the handling and disposal of hazardous substances that is critical under the statutory scheme” in determining whether an alleged arranger owned or possessed the subject hazardous substance, because “requiring proof of personal ownership or actual physical possession of hazardous substances as a precondition for liability under CERCLA § 107(a)(3), 42 U.S.C. § 9607(a)(3), would be inconsistent with the broad remedial purposes of CERCLA.”  810 F.2d at 743-44.

 Although the federal circuits have not agreed on a uniform rule for determining CERCLA arranger status, there exist several common factors that most courts apply in determining whether a sufficient nexus exists between a party and the disposal of a hazardous substance in determining CERCLA arranger status.   These factors include whether the potentially responsible party (1) had some actual involvement in the decision to dispose of the waste, or, alternatively, had an obligation to control the disposal of the waste, (2) engaged in the transaction for the purpose of waste disposal, (3) owned or possessed the waste, or (4) controlled the waste's disposal regardless of whether it owned or possessed it.   See Sea Lion, Inc. v. Wall Chem. Corp., 974 F.Supp. 589, 595 (S.D.Tex.1996) (discussing factors courts have considered).   Because CERCLA and SWDA have similar language and purposes, we will consider these non-exclusive factors in determining whether Street is a SWDA arranger.

4. Street's Arranger Status

a. Street's Knowledge of PCE Releases

 Pilgrim suggests that Street arranged for disposal of PCE wastes because it knew that (1) Street equipment generated wastes and (2) PCE spills occurred at Pilgrim's facilities.   However, similar arguments have failed in other cases.   In E.S. Robbins Corp. v. Eastman Chem. Co., the plaintiff argued that a chemical supplier was arranging for the disposal of a hazardous substance because it knew that a certain amount of the chemical had been spilled in the past as a result of its transportation.  912 F.Supp. 1476, 1487 (N.D.Ala.1995).   The E.S. Robbins court declined to find liability under this theory because previous spills “merely confirm that some spills have occurred in the past;  they do not confirm that spills are so likely to occur that in arranging for the transportation of the chemical product, [the defendant] was really arranging for their ultimate disposal.”  Id. This reasoning is persuasive.   Simply because Street was aware that PCE would be generated and possibly spilled, does not equate to arranging for disposal of PCE-waste.

b. Street's Involvement with the Waste Disposal Companies

 We next examine whether Street's role in the relationship between Pilgrim and the waste disposal companies, Safety-Kleen and AAD Disposal, render Street a SWDA arranger.   The record shows that Street recommended Safety-Kleen and AAD to Pilgrim.   The record also reveals that the waste disposal services provided by AAD resulted in spills and leaks at some of Pilgrim's facilities.   For example, PCE-waste leaked from waste disposal drums supplied by AAD at some of Pilgrim's facilities.

Doug Mulvaney, Pilgrim's in-house counsel, testified that to comply with the federal regulations regarding waste disposal that were effective in late 1986, Street recommended that Pilgrim use Safety-Kleen for waste disposal.   Pilgrim began using Safety-Kleen in 1985, and continued to use them until it began using AAD in 1991.

In United States v. Bliss, the court imposed CERCLA arranger liability on a defendant who had actively participated as a broker in the disposal of its customer's waste.  667 F.Supp. 1298 (E.D.Mo.1987).   The basis for the liability finding was that the broker had authority to choose the waste disposal company under its contract with the waste generator.  Id. at 1306.   Thus, the broker had the “authority to control the place and manner of disposal.”  Id. at 1307.

Here, Street did not have the authority to select either Safety-Kleen or AAD, or to control the manner of waste disposal.   With regard to Safety-Kleen, the record shows that Street recommended it to Pilgrim, but there is no indication that Street had the authority to make the ultimate decision to hire Safety-Kleen.

AAD's president, Harry Pourat, testified that Street introduced AAD to Pilgrim and helped it obtain Pilgrim's account.   Pourat stated that Corbin acted as an “advisor” and helped negotiate a lower fee with Pilgrim.   Pourat's contacts with Pilgrim were Doug Mulvaney, Pilgrim's in-house counsel, Pilgrim's plant managers, and Corbin.   Pourat stated it “seemed like [Corbin] worked for Pilgrim” and that Corbin would “follow up and make sure that things were done for Pilgrim.”

Although Street recommended AAD and assisted with the negotiations, nothing indicates that it was the ultimate decision of Street to retain AAD. To the contrary, Guy Robertson, Sr., former president of Pilgrim Cleaners, testified that Street requested that Pilgrim switch to AAD because Safety-Kleen had begun selling cartridges in competition with Street.   Robertson stated that Pilgrim “accommodated Mr. Corbin and [Street's president] and ․ switched to AAD at Mr. Corbin's and Street's request.”   Mulvaney testified that Street introduced AAD to Pilgrim and stated:  “[Street] came to us and said that we are promoting and want y'all to do business with AAD, if you will, please.”   This evidence indicates that it was Pilgrim's decision whether to hire AAD. Moreover, the record shows that correspondence describing the services that AAD would supply to Pilgrim was addressed to Mulvaney, not Street.   And the contract for waste disposal services was between Pilgrim and AAD, not AAD and Street.

 Street's role as a liaison between Pilgrim and AAD also does not support arranger liability.   Though the evidence shows that Corbin acted as liaison between the companies, this is not evidence that Corbin or Street had the ability to make the ultimate decisions regarding the method or manner of waste disposal at Pilgrim's facilities.

c. Technical Services and Advice

 Pilgrim argues that Street became an arranger by providing technical advice and services to Pilgrim, including those relating to waste disposal.   We agree.

In Edward Hines Lumber Co. v. Vulcan Materials Co., the defendant sold chemicals to a lumber treatment facility, advised and consulted the facility concerning the design and location of treatment systems, trained facility employees, had access to the facility, and provided technical assistance.   685 F.Supp. 651, 656-57 (N.D.Ill.1988), aff'd, 861 F.2d 155 (7th Cir.1988).   However, the chemical supplier was found to have incurred no CERCLA liability despite its extensive relationship with the lumber treatment facility because the evidence showed that (1) the chemical supplier sold the chemical for the purpose of wood treatment and not for disposal of its own wastes, and (2) the chemical supplier did not decide how the hazardous substance would be disposed of after its use in the wood treatment process.   Id.

 The court in Jordan v. Southern Wood Piedmont Co. reached a similar conclusion.  805 F.Supp. at 1580.   The Jordan court held that Dow Chemical, Co., the manufacturer and vendor of a chemical used in a wood processing plant, was not a CERCLA arranger even though the plaintiffs presented evidence showing that Dow communicated to the plaintiffs its expertise and offered to assist its customers in handling the chemicals.   Id. at 1580-81.   The Jordan plaintiffs argued that because Dow had sent bulletins with information regarding the safe handling of the chemicals and offered technical assistance, it had arranged for the disposal of chemicals.   Id. at 1580.   However, the Jordan court found that the such evidence did not support arranger status because there was no evidence that the plaintiffs had contacted Dow for advice, or that Dow had given the plaintiffs advice concerning chemical disposal.  Id. The Jordan court reasoned as follows:

Adoption of Plaintiffs' arguments, without concrete evidence establishing those bulletins as an attempt by [defendant] to arrange for the disposal of chemicals, would discourage chemical manufacturers from offering expertise to those experiencing problems and thereby increase the risk of future hazardous waste incidents.   Such a result is decidedly contrary to the intent of CERCLA.

Id.;   see also E.S. Robbins, 912 F.Supp. at 1487 (holding that chemical supplier's studies of how to prevent chemical spills during shipping and advice to carriers regarding safe handling of chemicals did not establish arranger liability).   We agree that sending technical bulletins relating to waste disposal does not constitute arranging for disposal of a solid waste.   However, this case is distinguishable from Jordan because Street actually gave direct advice to Pilgrim as to how to dispose of waste containing PCE. Here, Street's president and chief executive officer, Leslie Ross Beard, testified that he knew that Harold Corbin advised Street to dispose of PCE-containing separator water by dumping it into the public sewer.   By instructing Pilgrim to dispose of the separator water in this manner, Street had some actual involvement in the decision to dispose of the waste, and gave such advice for the purpose of disposing of waste.   The evidence reveals that Pilgrim trusted and relied on Corbin's advice almost all the time relating to the operation of its facilities, and Corbin had complete access to Pilgrim's plants.   In sum, Corbin was integrally involved in the operation of Pilgrim's facilities.15  Such evidence shows that Street controlled the disposal of the separator water even though it did not own or possess it.16

d. Corbin's Conduct

 Corbin testified that when visiting Pilgrim's facilities, he performed titration tests on the PCE to determine the concentration of the detergent.   To do this, he would remove PCE from a dry-cleaning machine, mix it with other chemicals in a vial, and then he disposed of it by pouring it in the sink or commode.   When questioned how many times he had done this at Pilgrim's plants, Corbin responded “thousands, I guess.”

By choosing to pour the PCE-mixture in the sink or commode, Corbin (1) took an active role in the disposal of PCE, (2) intended to dispose of the PCE, (3) “possessed” the PCE, and (4) controlled the method and manner of the disposal.   By so acting, he arranged for the disposal of PCE at the sewage treatment plant to which the PCE would travel through the sewer pipes.

We conclude that the evidence establishes as a matter of law that Street, through Corbin, “arranged” to dispose of solid waste by (1) instructing Pilgrim to pour its separator water into the sewer and (2) pouring the PCE-mixture into Pilgrim's sinks and commodes.   Thus, Street is a “person responsible for solid waste” as a matter of law under SWDA. See Tex. Health & Safety Code Ann. § 361.271(a)(3).

5. Domestic Sewage Exclusion

 Street claims that the PCE poured into the sewer system was not a disposal of a “solid waste” as required by SWDA. Id. “Solid waste” is defined in the act as:

[G]arbage, rubbish, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities.

Id. § 361.003(34) (Vernon 2001).   Clearly, the PCE-mixture that Corbin poured in the sinks and commodes of Pilgrim's facilities constituted “discarded material.”   However, SWDA's definition of solid waste is subject to the limitations of the federal “domestic sewage exclusion” found in the Resource Conservation and Recovery Act (RCRA),17 42 U.S.C. § 6903(27), and 40 C.F.R. § 261.4(a).   See Tex. Health & Safety Code Ann. § 361.003(34).

 RCRA's section 6903(27) defines “solid waste,” but specifically excludes from that definition “solid or dissolved material in domestic sewage․” 42 U.S.C. § 6903(27) (1994).   The regulatory section, 40 C.F.R. § 261.4, referred to in SWDA's definition of solid waste reads, in part:

(a) Materials which are not solid wastes.   The following materials are not solid wastes for the purpose of this Part:

(1)(i) Domestic sewage;  and

(ii) Any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned treatment works for treatment.  “Domestic sewage” means untreated sanitary wastes that pass through a sewer system.

40 C.F.R. § 261.4(a)(1) (2000).   Street claims that the small amount PCE poured into the sewer system by Corbin was not disposal of a “solid waste” as defined by SWDA because it falls within the regulatory domestic sewage exclusion of 40 C.F.R. § 261.4(a)(1)(ii).   Street contends that the domestic sewage exclusion found in section 261.4(a)(1)(ii) is broader than that found in RCRA section 6903(27) and applies the moment that the discarded material enters the sewer system.

Relying on federal case law interpreting the domestic sewage exclusion, Pilgrim argues that the exclusion does not apply in this case.   Street responds that the cases relied on by Pilgrim are inapplicable because they interpret the statutory domestic sewage exclusion found in RCRA, not the broader, regulatory domestic sewage exclusion that Street relies on found in 40 C.F.R. § 261.4. However, SWDA's definition of “solid waste” states that it is limited by RCRA section 6903(27) and 40 C.F.R. § 261.4(a).   See Tex. Health & Safety Code Ann. § 361.003(34).   Thus, the legislature intended that SWDA's definition of solid waste be subject to both domestic sewage exclusion provisions.

The court in Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Auth. (PRASA ), was the first to consider RCRA's domestic sewage exclusion.  888 F.2d 180 (1st Cir.1989).   In PRASA, the plaintiffs alleged that factory owners in a large industrial park violated RCRA's hazardous waste disposal prohibitions by discharging certain solid wastes into the sewer and sought injunctive relief.  Id. at 182.   The sewer lines that connected the industrial park to a sewage treatment plant did not connect with lines running from private homes.  Id. The First Circuit concluded that “domestic sewage” means sewage that comes from residences, and even if the wastes at issue had mixed with untreated sanitary waste that came from the workplace (rather than from residences), RCRA's domestic sewage exclusion would not apply.  Id. at 184-85.

The PRASA court provided several reasons for its conclusion.   First, the plain meaning of “domestic” is “relating to the household or the family ․ connected with the supply, service, and activities of households and private residences.”  Id. at 184 (quoting Webster's Third New International Dictionary 671 (1976)).   Second, section 6903(27) defines “solid waste” by source, rather than just type, so “domestic” sewage means sewage from a domestic source.  Id. at 185.   Third, the construction urged by the PRASA defendants contravened the purposes of RCRA, because “it is difficult to believe Congress would wish to exempt potentially large amounts of industrial waste from the statute's scope simply because they mix with some small amount of bathroom sewage.”  Id. Fourth, Congress intended that the scope of RCRA's injunctive relief provision be broad, and it would seem somewhat “anomalous to interpret the exception broadly and thus significantly narrow the statute's reach.”  Id. Lastly, the EPA, as amicus, argued against the defendants' proposed construction, and the court accorded considerable weight to the agency's view of a statute it administers.  Id. at 185-86.

Although there was no evidence in this case regarding whether the sewer lines from Pilgrim's plants connected with those from residences, the reasoning of the PRASA court is instructive.   To allow industrial waste-generators to avoid the reach of a cost recovery action by disposing of its waste down the sewer, would not only frustrate SWDA's statutory scheme, but defeat the act's remedial purpose.

The court in Lincoln Props., Inc. v. Higgins, had to decide whether PCE discharged into the sewer system by a dry-cleaner fell within RCRA's domestic sewage exclusion.   23 Envtl.  Law Rep.. 20,665 (E.D.Cal.1993).   The court held that it did not.   Id. at 20,671.   In reaching this decision the court stated:

The exclusion covers “solid or dissolved material in domestic sewage.”   Any mingling of the dry cleaners' sewage with residential sewage occurred “downgradient from,” or past, the portions of the sewage lines from which PCE leaked.   Thus, the PCE at issue-the PCE that leaked into the soil and groundwater-did not mix with the sewage from residential sources and was therefore never “solid or dissolved material in domestic sewage.”

Id. at 20,670.

The Lincoln court also stated that, even if the broader, regulatory domestic sewage exclusion applied, the PCE would not fall under that domestic sewage exclusion because it escaped into the soil and groundwater and never reached “a publicly-owned treatment works” as required by 40 C.F.R. § 261.4(a)(1)(ii).  Id. at 20,671.

We find the reasoning in Lincoln persuasive.   The regulatory domestic sewage exclusion does not apply to the facts of this case.   Here, the PCE-waste that contaminated Pilgrim's sites would not fall under the regulatory domestic sewage exclusion because the PCE-waste found in the soil and groundwater at Pilgrim's plants were, at that point, not mixed with domestic sewage and would never reach “a publicly-owned treatment works.”  40 C.F.R. § 261.4(a)(1)(ii).

 We conclude that neither the statutory nor the regulatory domestic sewage exclusion applies to the PCE-wastes discarded by Corbin into the sewer, and that such conduct constituted “disposal of solid waste.”

6. Causation

 Street also contends that SWDA requires Pilgrim to show that Street's conduct “caused” it to incur its environmental cleanup costs.   In support of this argument, Street cites federal cases for the proposition that, in CERCLA cases, the plaintiff seeking contribution must show that the defendant's conduct caused it to incur response costs.   Although the liability standard in CERCLA subsection 9607(a) states that an arranger shall be liable for any “release which causes the incurrence of response costs,” neither SWDA section 361.271 nor 361.344 contain a similar requirement for determining whether a plaintiff can sustain a cost recovery action against a defendant.18  42 U.S.C. 9607(a)(4) (1997) (emphasis added);  see also Tex. Health & Safety Code Ann. §§ 361.271, 361.344.   Rather, a causation-like factor is taken into consideration by the trial court in apportioning costs after a defendant has been found to be a “person responsible for solid waste.”   See Tex. Health & Safety Code Ann. § 361.343(a)(1) (stating apportionment made according to “the relationship between the parties' actions in storing, processing, and disposing of solid waste and the remedy required to eliminate the release or threatened release”).19

7. Other SWDA Provisions

As discussed above, to succeed on its SWDA cost recovery action, Pilgrim must not only show that Street is “a person responsible for solid waste,” but must also establish that (1) the TNRCC's commission approved Pilgrim's remedial actions;  (2) the remedial actions are “necessary to address a release or threatened release” of a solid waste into the environment;  (3) the cleanup costs are “reasonable and necessary;” and (4) Pilgrim made reasonable attempts to notify Street of the existence of the release and that it intended to take steps to eliminate the release.   See id. §§ 361.271, 361.344.

 Street contends that these issues were either not established by Pilgrim, or require factual determinations to be made by the jury.   However, if Pilgrim conclusively established these issues as a matter of law, then the trial court did not err in failing to submit them to the jury.   See Tex.R. Civ. P. 279;  T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222-23 (Tex.1992);  see also European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 56 (Tex.App.-Dallas, writ denied) (“When a party conclusively proves a vital fact or does not contradict a vital fact, its effect is a question of law and there is no issue for the jury.”).

a. Approval

 Pilgrim was required to show that its remedial actions were “approved by the [TNRCC] commission.”   See Tex. Health & Safety Code Ann. § 361.344(a).   What constitutes approval is not defined by SWDA. The undisputed evidence showed that (1) Pilgrim entered into an agreement with the TNRCC under the Texas Voluntary Cleanup Program 20 to remediate the sites, and (2) the TNRCC approved Pilgrim's “closure plan” for each site.   In keeping with the remedial purposes of SWDA, we hold such undisputed evidence establishes approval by the TNRCC for purposes of bringing a cost recovery action.

b. Release

 Section 361.344 cost recovery actions apply to remedial actions that are “necessary to address a release or threatened release” of a solid waste into the environment.   Id. § 361.344. A “release” is “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.”   Id. § 361.003(28) (Vernon 2001).21

 Street argues that a fact issue exists regarding whether there was a “release” of PCE into the environment.   However, Street does not dispute that Pilgrim's properties were contaminated with PCE. Because the undisputed evidence shows that the groundwater and soil at the sites were contaminated with PCE, Pilgrim has conclusively shown that there was a “release” of PCE at the sites.

c. Reasonable and Necessary Costs

 In a section 361.344 cost recovery action, a plaintiff may bring suit to recover the “reasonable and necessary costs” of its remedial action.   See id. § 361.344. Street contends that the issue of “reasonable and necessary costs” should have been submitted to the jury.

 Michael Marcon, Pilgrim's expert who provided technical guidance for the cleanup at Pilgrim's sites, testified regarding the remediation methods utilized at each location and the associated costs for these actions.   He stated that all of the sites had PCE-contaminated soil, and all but one of the Houston sites had groundwater contamination that required remediation;  none of the San Antonio sites had groundwater contamination.   At the time of trial, remediation had been completed at the San Antonio sites and the one Houston location that did not have groundwater contamination;  however, groundwater remediation was ongoing at the remaining Houston sites.

To remediate the groundwater, Pilgrim employed a “groundwater recovery system.”   This process entailed pumping the groundwater to the surface, filtering it through activated carbon, and then discharging it into the public sewer system or onto the ground.   Pilgrim was also required to monitor the groundwater at the affected sites for two years following the completion of the groundwater remediation.

To address the soil contamination, Pilgrim covered the affected soil with an eight-inch concrete cap and a synthetic liner.   The purpose of the cap was to divert rainwater from the soil to prevent the contaminants from being carried down to the groundwater.

Marcon testified that, at the time of trial, Pilgrim had spent $3,704,987 to remediate its sites, and would spend an additional $1,231,953 to clean up its own properties and an additional $2,158,000 for neighboring properties that were contaminated for a total of $7,094,940.22

Street's environmental expert, Richard Adams, stated that, in his opinion, groundwater remediation was not required at four of Pilgrim's sites-Chimney Rock, Fondren, Jones Road, and West Bellfort.   According to Adams, groundwater remediation was not required at the four sites because the groundwater at these locations will never be used as drinking water.   Relating to the soil contamination, Adams stated that the concrete cap was unnecessary because Pilgrim could have achieved the same objective (i.e., preventing rainwater from filtering through the soil and thereby carrying contaminants to the groundwater), and saved significant expense, by sealing any cracks in the asphalt.

According to Adams, a 40 percent reduction should be taken on the amount Pilgrim seeks to remediate the sites.   In his opinion, the “reasonable and necessary” remediation costs for these sites should be $4,253,000.

Because SWDA does not define what constitutes “reasonable and necessary costs,” we again look to federal case law interpreting similar language in CERCLA to aid us in defining this phrase.

CERCLA allows private litigants to recover the “necessary costs of response;” however, CERCLA does not define this phrase.   See 42 U.S.C. § 96-7(a)(4)(B).  Courts have held that to show response costs were “necessary,” CERCLA plaintiffs must demonstrate that (1) the costs were incurred in response to a threat to human health or the environment, and (2) the costs were necessary to address that threat.  G.J. Leasing Co., Inc. v. Union Elec. Co., 854 F.Supp. 539, 561 (S.D.Ill.1994), aff'd, 54 F.3d 379 (7th Cir.1995);  see also Southfund Partners III v. Sears, Roebuck & Co., 57 F.Supp.2d 1369, 1378 (N.D.Ga.1999);  Foster v. United States, 922 F.Supp. 642, 652 (D.D.C.1996);  Artesian Water Co. v. Gov't of New Castle County, 659 F.Supp. 1269, 1278 (D.Del.1987), aff'd, 851 F.2d 643 (3d Cir.1988).

 As mentioned above, the Texas Legislature states the purpose of SWDA is “to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste, including accounting for hazardous waste that is generated.”   Tex. Health & Safety Code § 361.002. Thus, it is consistent with the stated purpose of SWDA to require a plaintiff to demonstrate that its remedial costs are “reasonable and necessary” by showing that the costs are (1) incurred in response to a threat to human health or the environment, and (2) necessary to address that threat.

The record contains Pilgrim's “closure plans” that were submitted to the TNRCC for each of the sites.   Each closure plan includes a remedial investigation report, a baseline risk assessment, a corrective measures study, and a description of proposed remedial activities.

Despite Street's expert testimony disputing the necessity and reasonableness of groundwater remediation at the Chimney Rock, Fondren, Jones Road, and West Bellfort sites, the site closure plans state that PCE and other contaminants were found in the groundwater at these four locations at levels above the federal and state groundwater standards for drinking water.   The record also contains correspondence from the TNRCC dated February 1, 1996, approving the closure plans, including the proposed remedial actions for all 16 sites.

In addition to approving the closure plans, the TNRCC also required Pilgrim to take further action than that stated in the closure plans for many of the sites.   With regard to requiring additional activities at the Chimney Rock, Fondren, Jones Road, and West Bellfort sites, the TNRCC stated:

10154 Jones road, Houston, Texas-VCP 0148

Chlorinated organics were noted in the groundwater samples collected from monitor well MW-6, located in the northeast corner of the Pilgrim property, and in MW-9 located offsite to the northeast.   Offsite notification, investigation and if necessary remediation, should be undertaken to the north and east of the site.

6701 Chimney Rock, Houston, Texas-VCP 062

Chlorinated organics were noted in the groundwater samples collected from monitor well MW-4 located in the northeast corner of the Pilgrim property.   Offsite notification, investigation and if necessary remediation, should be undertaken to the north and east of the site.

10616 West Bellfort, Houston, Texas-VCP 062

[PCE] was noted in the groundwater monitor wells located on the northern boundary of the site at levels ranging from 17 to 26 ppm․

During installation of the groundwater recovery system a groundwater monitor well should be installed ․ to monitor the effectiveness of the system.

11322 Fondren, Houston, Texas-VCP 116

Chlorinated organics were noted in the groundwater samples collected from monitor well MW-1 which is located near the southern property boundary that is shared with several residences.   Although [PCE] was not detected in the groundwater sample collected in the easement on the south side of the residential property, conclusive evidence was not presented that [PCE] was not present under the residence(s);  therefore, the TNRCC requires that offsite property owner(s) to the south and east who may have [PCE] underlying their property be notified of the potential for [PCE] to be present in the shallow groundwater underlying their property.   This should be followed by the appropriate investigation and remediation activities. Pilgrim must provide proof of notification and documentation of investigation and remediation activity.

(Underlined emphasis in the original.)

With regard to remediation of the contaminated soil, Pilgrim's closure plans proposed that the soil be covered with a concrete cap and a synthetic liner.   The closure plans recommended that the concrete cap be eight inches thick (but “at least” six inches at the Jones Road site).   The TNRCC approved the proposed soil remediation and stated:

Soil Remediation-Composite Cap

The Composite Cap composed of 8″ of concrete and a 40 mil synthetic liner should be maintained in a condition to achieve its intended purpose as long as contaminants are present in the soil at levels that exceed groundwater protection cleanup levels.   It is anticipated that the cap will be necessary indefinitely․

(Emphasis added.)

The presence of contaminants in the soil and groundwater at levels above those allowed by state and federal standards establishes a threat to human health and the environment.   This conclusion is bolstered by the TNRCC's approval of Pilgrim's proposed remedial actions that are designed to remedy the contamination.23  It is uncontroverted that Pilgrim's costs associated with its remedial actions are being incurred in response to the soil and groundwater contamination.   As to the necessity of these activities, the evidence showed that the TNRCC not only approved the proposed remedial activities but also required activities at most sites in addition to those proposed by Pilgrim.   Such evidence establishes necessity.   Thus, Pilgrim conclusively established that its remedial costs were “reasonable and necessary.”

Such holding is consistent with the broad, remedial purpose of SWDA to protect human health and promote the prompt cleanup of solid waste, which we are required to construe liberally.

d. Attempts to Notify

Street also correctly states that to succeed on its section 361.344 cost recovery action, Pilgrim had to show that it “made reasonable attempts to notify [Street] ․ of the existence of the release ․ and that [Pilgrim] intended to take steps to eliminate the release․” Id. § 361.344(c).  Street contends that this issue should have been submitted to the jury.

 Guy Robertson, Sr. testified that he notified Street's president about the contamination and requested Street to participate in the cleanup.   Street does not dispute Robertson's testimony on this point and offered no evidence to the contrary.   Because Robertson's undisputed testimony shows that Pilgrim notified Street of the existence of the release and that Pilgrim intended to take steps to eliminate the release, it conclusively established that Pilgrim made reasonable attempts to make such notification.   Id.

Because Pilgrim conclusively established as a matter of law that (1) Pilgrim's remedial actions were approved by the TNRCC;  (2) there was a “release” of solid wastes (i.e., PCE) into the environment;  (3) the remediation costs Pilgrim seeks are “reasonable and necessary;” and (4) Pilgrim made reasonable attempts to notify Street of the existence of the release and that it intended to take steps to eliminate the release, the trial court did not err in failing to submit these issues to the jury.

8. Apportioning Costs

 Once a plaintiff has shown that the defendant is a “person responsible for solid waste,” and established the other essential elements of a SWDA cost recovery action, then subsection 361.344(d) requires the trial court to determine the amount of the plaintiff's cost recovery by applying the criteria listed in section 361.343.   See id. §§ 361.343, 361.344(d).

Section 361.343 provides:

§ 361.343.  Apportionment of Costs

(a) Apportionment of costs for the elimination of the release or threatened release of solid waste among the persons responsible for solid waste under Section 361.271 shall be made according to:

(1) the relationship between the parties' actions in storing, processing, and disposing of solid waste and the remedy required to eliminate the release or threatened release;

(2) the volume of solid waste each party is responsible for at the solid waste facility or site to the extent that the costs of the remedy are based on the volume of solid waste present;

(3) consideration of toxicity or other waste characteristics if those characteristics affect the cost to eliminate the release or threatened release;  and

(4) a party's cooperation with state agencies, its cooperation or noncooperation with the pending efforts to eliminate the release or threatened release, or a party's actions concerning storing, processing, or disposing of solid waste, as well as the degree of care that the party exercised.

(b) In apportioning costs under Subsection (a), the court shall credit against a responsible party's share of the costs of eliminating a release or threatened release of solid waste the party's expenditures related to the cleanup at issue if the commission or the executive director approves the cleanup.   If the expenditures were made before the property was proposed to be listed on the state registry and the commission or the executive director approves the cleanup, the court shall also reduce in an equitable and just manner the party's proportionate share of the costs․

Id. § 361.343(a),(b).

After applying these criteria, the trial court in this case found Street's proportionate share of the cleanup costs to be $1.5 million and entered judgment against Street for that amount, plus interest.   Street contends that questions of fact exist relating to the section 361.343 criteria which should have been determined by the jury.

 Like contribution, apportionment of damages is inherently equitable in nature.   As a general rule, the jury does not determine the expediency, necessity, or propriety of equitable relief.  Burrow v. Arce, 997 S.W.2d 229, 245 (Tex.1999);  Texas Pet Foods, 591 S.W.2d at 803.   Applying this principle, the amount of cleanup costs apportioned to each responsible party under SWDA should be determined by the trial judge according to the equitable criteria listed in section 361.343.   However, it is also well established that when contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have that resolution made by a jury.   See Texas Pet Foods, 591 S.W.2d at 803.

The case of Burrow v. Arce is illustrative of this point.   In Burrow, the Texas Supreme Court listed factors to consider in applying the equitable remedy of fee forfeiture in cases involving a breach of fiduciary duty to a client by an attorney.   These factors are (1) the gravity and timing of the violation, (2) its wilfulness, (3) the effect on the value of the lawyer's work for the client, (4) any other threatened or actual harm to the client, and (5) the adequacy of other remedies.  Burrow, 997 S.W.2d at 243.   The Burrow court stated that the ultimate decision on the amount of fee forfeiture must be made by the trial judge.  Id. at 245.   Factors such as “the adequacy of other remedies and public interest in protecting the integrity of the attorney-client relationship, as well as weighing other relevant considerations, present legal policy issues well beyond the jury's province of judging credibility and resolving factual disputes.”  Id.

However, before the trial judge determines whether a clear and serious violation of duty occurred, whether forfeiture is appropriate, and if so, whether all or part of the attorney's fee should be forfeited, the trial judge must first decide whether factual disputes exist that must be determined by a jury related to these issues.   See id. at 246.   The Burrow court explained that in a fee forfeiture case

[s]uch factual disputes may include, without limitation, whether or when the misconduct complained of occurred, the attorney's mental state at the time, and the existence or extent of any harm to the client.   If the relevant facts are undisputed, these issues may, of course, be determined by the court as a matter of law.   Once any necessary factual disputes have been resolved, the court must determine, based on what we have set out, whether the attorney's conduct was a clear and serious breach of duty to his client and whether any of the attorney's compensation should be forfeited, and if so, what amount.   Most importantly, in making these determinations the court must consider whether forfeiture is necessary to satisfy the public's interest in protecting the attorney-client relationship.   The court's decision whether to forfeit any or all of an attorney's fee is subject to review on appeal as any other legal issue.

Id.

 Likewise, in SWDA cost recovery actions, the ultimate decision regarding the amount of cleanup costs to be apportioned to each responsible party must be made by the trial judge, not the jury.   However, any factual disputes relating to the equitable criteria listed in subsection 361.343(a)(1)-(4) should be determined by the jury.   Such factual disputes may include (1) the relationship between the party's actions in storing, processing, and disposing of solid waste and the remedy required to eliminate the release;  (2) the volume of solid waste each party is responsible for at the site;  (3) the toxicity and other characteristics of the solid waste attributable to each party;  and (4) to what extent a party cooperated in the cleanup.   See Tex. Health & Safety Code Ann. § 361.343(a)(1)-(4);  see also Burrow, 997 S.W.2d at 245-46.   However, other factors such as giving a party credit for cleanup expenditures approved by the TNRCC and reducing “in an equitable and just manner” the party's proportionate share of the costs it voluntarily expended, are legal determinations for the trial judge to make.   See Tex. Health & Safety Code Ann. § 361.343(b).

 In this case, Street vehemently contests whether a causation-like relationship exists between any act of Street at Pilgrim's facilities and the remedial activities required at the sites.   Street also contests the amount of waste attributable to it at the sites.   These factual disputes should have been determined by the jury before the trial court apportioned damages in this case.   Thus, we hold that the trial court erred in failing to submit these issues to the jury and that the error probably did cause the rendition of an improper judgment.   See Tex.R.App. P. 44.1(a)(1).

9. Conclusion Regarding Street's Appeal

Because we hold that Street is a “person responsible for solid waste” (i.e., an arranger) under SWDA, we overrule Street's issue two.   We sustain Street's first issue because we hold that the trial court erred in failing to allow the jury to make factual determinations regarding (1) whether a relationship exists between the PCE-wastes that Street arranged to be disposed of at Pilgrim's facilities and the remedial actions engaged in at the sites, and (2) the volume of the wastes at the sites attributable to Street.

10. Disposition:  Rendition or Remand?

 On appeal, Street argues that the correct remedy with regard to Pilgrim's SWDA claim is rendition of judgment in Street's favor, not remand for new trial.   Street contends that Pilgrim waived its right to recover under SWDA by failing to submit or request any jury findings on that theory of recovery.   We disagree.

At trial, Pilgrim argued that its SWDA claim should be decided as a matter of law by the trial court, while Street argued that issues of fact existed, which should be determined by the jury.   At the charge conference, the following discussion took place regarding this issue:

[STREET'S ATTORNEY]:  We still have the issue of solid waste disposal.

THE COURT:  What about the issue of the solid waste disposal?

[STREET'S ATTORNEY]:  I thought your ruling was we were going to submit persons responsible to the jury.

[PILGRIM'S ATTORNEY]:  We say it's a question of law entirely.   But if the court wants-

THE COURT:  I think it's a question of law, too.

Consistent with the trial court's ruling, Pilgrim did not submit proposed jury questions on its SWDA claim.   However, Street submitted proposed jury questions and instructions for Pilgrim's SWDA claim, and also filed a written objection to the trial court's jury charge on the basis that the court failed to submit that theory of recovery to the jury.

 In essence, Street contends that even though the trial ruled that it would determine Pilgrim's SWDA claim as a matter of law, Pilgrim was still required to request jury findings on this theory.   In support of its argument that Pilgrim waived its right to recovery under SWDA, Street relies on Texas Rule of Civil Procedure 279 for the proposition that:  “Upon appeal all independent grounds of recovery ․ not conclusively established under the evidence and no element of which is submitted or requested are waived.”   See Tex.R. Civ. P. 279.   The general rule is that the plaintiff has the burden to obtain affirmative answers to jury questions as to the necessary elements of his cause of action.   Id.;  Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991).

 However, we conclude that in cases in which the trial court has ruled that a theory is to be determined as a matter of law and takes it from the jury, a party will not be found to have waived that theory of recovery when it relies on that ruling and fails to request jury findings.   Similarly, Texas courts have found no waiver in cases in which a party failed to submit jury issues after the trial court granted a directed verdict and withdrew the case from the jury.   See Clark v. Lone Star Life Ins. Co., 347 S.W.2d 290, 292 (Tex.Civ.App.-Waco 1961, writ ref'd n.r.e.) (concluding that predecessor to current Rule 279 did not apply in case in which trial court granted directed verdict and withdrew case from jury);  Sears, Roebuck & Co. v. Kengla, 266 S.W.2d 548, 549 (Tex.Civ.App.-El Paso 1954, writ ref'd n.r.e.) (ordering new trial in case in which trial court erroneously withdrew negligence question from jury and found fact that defendant requested no such jury issue was immaterial);  City of Breckenridge v. Stoker, 264 S.W.2d 511, 518 (Tex.Civ.App.-Eastland 1954, writ ref'd n.r.e) (finding plaintiffs did not waive claim for damages because trial court had directed verdict for the plaintiffs and withdrew case from jury).24  We will not penalize Pilgrim for failing to submit jury questions on its SWDA claim when the trial court expressly ruled that it would withdraw the issue from the jury.   Thus, remand is the appropriate remedy.   See Tex.R.App. P. 43.

 Accordingly, we reverse that portion of the judgment awarding Pilgrim damages and interest on its Solid Waste Disposal Act claim and remand that claim to the trial court (1) for the jury to make factual determinations relating to (i) whether a relationship exists between the PCE-wastes, which Street arranged to be disposed of by Street at Pilgrim's facilities, and the remedial activities engaged in at the sites, and (ii) the volume of the wastes disposed of by Street at the sites;  and (2) for the trial judge to determine the amount of damages (and interest) Pilgrim is entitled to from Street by apportioning the cleanup costs among the responsible parties based on the criteria listed in Solid Waste Disposal Act section 361.343.25  We affirm the judgment in all other respects.

The discussion of Pilgrim's and Turk's appeal does not meet the criteria for publication, Tex.R.App. P. 47, and is thus ordered not published.

B. Turk and Pilgrim's Appeal

1. Sufficiency of the Evidence

In their first issue, Pilgrim and Turk contend that they are entitled to a new trial because the jury's findings were so contrary to the overwhelming weight of the evidence as to be manifestly unjust.26  Pilgrim and Turk contend that the evidence establishes that (1) Street advised Pilgrim to dispose of PCE-wastes in such a manner that caused environmental contamination, (2) and that Street's equipment and personnel introduced PCE into the environment at Pilgrim's facilities.

a. Waiver

Street contends that Pilgrim has waived its factual sufficiency challenge.   We agree.

In a jury trial, a motion for new trial complaining that the evidence was factually insufficient to support a jury finding is a prerequisite to raising that complaint on appeal.   Tex.R. Civ. P. 324(b)(2), (3);  Cecil v. Smith, 804 S.W.2d 509, 510 (Tex.1991).   Here, only Turk filed a motion for new trial challenging the factual sufficiency of the evidence relating to its claims for negligence, design defect, and marketing defect.27

Although Pilgrim filed a motion for new trial, it did not contain allegations that the jury's findings were not supported by factually sufficient evidence or that they were against the great weight and preponderance of the evidence.   Rather, the motion was filed in the alternative to Pilgrim's motion for entry of judgment under the Solid Waste Disposal Act, and stated “Should the Court deny Plaintiffs' Motion for Entry of Judgment, the Pilgrim Plaintiffs hereby seek a new trial of this cause as to all of their common law and statutory causes of action.”   The motion did not state the basis for Pilgrim's allegation that it was entitled to a new trial on these claims.

In order to preserve its contentions that the jury's findings were against the great weight and preponderance of the evidence, Pilgrim was required to point out each such contention in a motion for new trial in a manner that apprised the trial court of the alleged deficiencies;  this Pilgrim did not do.   See Tex.R. Civ. P. 321, 322, 324(b)(2), (3);  Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 150-1 (Tex.App.-Corpus Christi 1996, no writ);  Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 419 (Tex.App.-Amarillo 1995, no writ).   In addition, the complaint brought on appeal must be the same as the complaint presented to the trial court.  Cook v. Sabio Oil & Gas, Inc. 972 S.W.2d 106, 114 (Tex.App.-Waco 1998, pet. denied);  see also Arroyo Shrimp Farm, 927 S.W.2d at 150-51.

Pilgrim contends that it preserved its factual sufficiency challenge in its “Reply to R.R. Street & Co.'s Response to Plaintiffs' and Intervenors' Supplemental Brief on the Texas Solid Waste Disposal Act” (the reply), offered in support of its motion for entry of judgment on its SWDA claim.   In particular, page seven of the reply states:  “The jury decided that Street's products were not dangerous or defective, that Street was not negligent, and that Street did not lie to Pilgrim.   Because those findings are against the overwhelming weight of the evidence, both Pilgrim and Turk are entitled to a new trial.   Tex.R. Civ. P. 324(b)(3).” 28

Pilgrim relies on Alvarez v. Texas Employer Insurance Ass'n, in support of its position that the reply satisfied rule 324's requirement that a party must file a motion for new trial containing a factual sufficiency allegation to preserve the point on appeal.  450 S.W.2d 114, 115-16 (Tex.Civ.App.-San Antonio 1970, writ ref'd n.r.e.).   In Alvarez, the San Antonio Court of Appeals held that raising a factual sufficiency challenge in a motion to disregard jury findings was sufficient to preserve the complaint on appeal because it gave the trial court “fair notice” of the issue.  Id. at 116.

However, Alvarez is distinguishable from this case.   Here, Pilgrim's factual sufficiency challenge was found on page seven of its “Reply to R.R. Street & Co.'s Response to Plaintiffs' and Intervenors' Supplemental Brief on the Texas Solid Waste Disposal Act.”   We cannot say that this provided the trial court with “fair notice” of the factual sufficiency complaint, particularly when Pilgrim did not raise this issue in its motion for new trial.

We conclude the statement made in Pilgrim's reply is not sufficient to preserve Pilgrim's factual sufficiency challenge on appeal.   Therefore, Pilgrim has waived its factual sufficiency challenge and we will consider only the factual sufficiency of the evidence relating to Turk's claims for negligence, design defect, and marketing defect.

b. Standard of Review

Because the trial court struck Street's affirmative defenses because of discovery abuse, Turk contends that the standard of review for its sufficiency challenge should be modified.29  Specifically, Turk suggests that this Court should not consider any evidence pertinent only to Street's affirmative defenses.   However, Turk supplies no authority in support of this argument.   See Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 373 (Tex.App.-Houston [1st Dist.] 1997, no writ) (holding appellant's failure to cite to any authority constitutes waiver).   Turk also fails to identify which evidence is pertinent only to Street's affirmative defenses.   An appellate court is under no duty to make an independent search of the record for evidence supporting an appellant's position.  Id. Accordingly, we will apply the usual standard of review for Turk's factual sufficiency challenge.   See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

When reviewing a claim that the evidence is factually insufficient to support a jury finding, the court of appeals must first examine all of the evidence.  Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986);  State Indus., Inc. v. Corbitt, 925 S.W.2d 304, 306 (Tex.App.-Houston [1st Dist.] 1996, no writ).   After considering and weighing all of the evidence, the court of appeals should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.  Cain, 709 S.W.2d at 176;  Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.-Houston [1st Dist.] 1993, writ denied).   The appellate court cannot substitute its opinion for that of the trier of fact and determine that it would reach a different conclusion.   Hollander, 853 S.W.2d at 726.

c. Negligence

With regard to Turk's negligence claim, the jury was asked:  “Did the negligence, if any, of Street proximately cause injury at the [three Turk] locations listed below?”   The jury responded “no” for each location.

The jury was properly instructed that negligence “means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances.”   See Thompson v. Gibson, 156 Tex. 593, 298 S.W.2d 97, 105 (1957) (providing same definition for negligence).   The jury was further instructed that “ordinary care” means “that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.”   See Sisters of Charity of Incarnate Word v. Gobert, 992 S.W.2d 25, 28 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (stating that to establish liability based on negligence, plaintiff must prove defendant did something an ordinarily prudent person exercising ordinary care would not have done under same circumstances, or that defendant failed to do that which an ordinarily prudent person in exercise of ordinary care would have done).

On appeal, Turk contends that the overwhelming weight of the evidence established that Street's negligence caused the contamination at its three properties.

i. Separator Water

Turk contends that separator water and PCE leaking from sewer pipes was the primary cause of contamination at its three properties. Turk argues that the PCE was introduced into the sewer pipes because of Street's negligence.   Specifically, Turk contends that, although Street knew, or should have known that PCE-containing separator water was escaping from sewer pipes into the environment, Street failed to provide either its employees servicing Pilgrim's account or Pilgrim with this information.

The following facts are undisputed in this case:  (1) the separator water discharged by Pilgrim into the public sewer system contained PCE;  (2) Street advised Pilgrim to catch separator water in buckets and then pour it into the public sewer system;  and (3) Street's representative, Corbin, poured vials containing PCE into Pilgrim's commodes and sinks.

Pilgrim elicited testimony from John Stucker, Street's former director of chemical research and testing, that Street knew in the 1970's that separator water contained soluble PCE. Pilgrim also introduced a memo sent by one of Street's employees to its headquarters in 1978 that forwards an attached newspaper article reporting that PCE was found in the local water supply in Greilickville, Michigan.   The article states that the suspected source was a local commercial dry-cleaner.

The record shows that in 1989 Street's vice president of technology and environmental affairs, Dr. Manfred Wentz, received a copy of a draft report regarding an investigation commissioned by the state of California to determine the source of PCE contamination in that state's groundwater.   In the draft report, entitled, “Dry Cleaners:  A Major Source of PCE in the Ground Water,” its author, Victor Izzo, an engineering geologist, concluded that PCE was being introduced into the subsurface by dry-cleaners through leaky sewer pipes.

In 1991, Dr. Wentz prepared a memo to Street's management entitled, “Dry-cleaning Wastewater Issues.”   The stated purpose of the memo was to “develop an action plan to ensure that the waste water generated by our equipment is disposed of in an environmentally responsible way.”   As part of the action plan, Street distributed written information in August and October 1991 to its field personnel, which instructed its sales staff to inform Street's customers about the potential problems with waste water disposal.

The record further reflects that Harold Corbin retired from Street in 1990, but worked for Street as a consultant until 1997.   Corbin continued to service Pilgrim's account even after his retirement.   Corbin testified that, after he retired, he was never informed that separator water contained PCE or that sewer lines were suspected to leak.   Corbin stated that had he known of the potential problems with the separator water and sewer lines, he would have informed Pilgrim of these issues.

In response to the evidence offered by Pilgrim and Turk, Street offered evidence that it acted with ordinary care with regard to separator water.   Street introduced evidence that PCE manufacturers had provided customers, such as Pilgrim, with material safety data sheets since the mid-1970's, which disclosed that PCE is soluble in water.

Street's president and chief executive officer, Leslie Ross Beard, testified that the general industry understanding was that the small amount of PCE found in separator water could not cause environmental contamination.   Beard further testified that, at the time of trial, EPA regulations still permitted dry-cleaners to discharge wastewater into the public sewer system.

Beard's testimony is consistent with the position taken by industry trade organizations such as the International Fabricare Institute (IFI).   In June 1983, an article entitled, Perc in Separator Water Not an Environmental Problem, appeared in IFI's trade journal, IFI Fabricare News. The article stated that, “[a]fter reviewing IFI's data, the U.S. EPA has formally declared their intention not to require control or pretreatment of dry-cleaning plant water discharges-because our discharges are so small as to be almost nonexistent.”

Beard admitted that Street recognized that water separators, such as the ones mounted on the still it manufactured, could be a way for pure PCE to get into the sewer system.   However, Beard stated, because of that possibility, Street's equipment manuals instructed its customers to pipe the separator water into a pail or suitable container so that any free PCE could be seen and handled appropriately.

Beard acknowledged that Street had received the newspaper article sent by one of its employees to its headquarters in May 1978 regarding groundwater contamination in Michigan.   However, Beard testified that, in 1978, the EPA had neither promulgated regulations related to PCE-wastes nor PCE groundwater standards.   Beard pointed out that the article does not specifically state that the contamination in Michigan was caused by separator water being discharged into the sewer.   Beard also explained that the dry-cleaner mentioned in the article was an “industrial dry-cleaner” which is different from a retail dry-cleaner such as Pilgrim.   Beard stated that this distinction is relevant because industrial dry-cleaners use different processes and dry-cleaning chemicals than retail dry-cleaners.

During direct examination, Beard discussed the Izzo Report relating to the groundwater contamination in California.   Beard stated that while the preliminary draft of the report was completed in 1989, the final draft of the report was not issued until March 27, 1992.   Though separator water discharged into the sewers was a possible source of contamination listed in the Izzo report, it was not the only source identified.

Beard also explained that the EPA commissioned a consulting firm, Radian Corporation (Radian), to assess the Izzo report.   Radian issued a report (Radian Report) on August 31, 1993.   In its report, Radian concluded that the contamination in California was probably caused by historical practices of dry-cleaners, such as disposing of still residues in the sewer, rather than current practices.   The report stated that dry-cleaners who admitted putting still residues in the sewer had high levels of contamination, while those who had only discharged separator water had sewer level readings of less than five parts per billion of PCE.30

Following the issuance of the Radian Report, and, as part of the regulatory process for issuing new national emission standards for PCE, the EPA held a public hearing.   A public notice of the hearing stated that one of the topics to be discussed at the hearing was the Izzo report.   After the public hearing was held, the EPA enacted new emission standards for PCE, including the regulations regarding the disposal of still and filter residues.   However, the EPA continued to allow dry-cleaners to discharge separator water into the sewer.

Street also introduced evidence that it had informed Pilgrim of the potential problems of discharging separator water into the sewer following the issuance of the draft Izzo Report.   On August 23, 1991, Street issued a “general letter” (i.e., a communication to its sales staff to be inserted into the employee's portfolio), entitled “Disposal of Separator Water.”   The stated purpose of the letter was “to reaffirm the proper disposal method for managing wastewater from separators, specifically on [Street's] equipment.”   The general letter also advised its sales staff that:

Since it is impossible for Street's [sic] to interpret all existing or future local POTW [public owned treatment works] regulations, we request that you advise your customers using [Street] equipment to dispose of separator water wastewater in accordance with their local regulations, whatever they may be.   Dry-cleaners should contact their local POTW, or other agency in charge, to determine the regulations governing this subject.

(Underlined emphasis in original.)   Street further instructed its sales staff to read a bulletin from an industry trade organization attached to the general letter, which describes various options that dry-cleaners had in disposing of wastewater.

On October 15, 1991, Street issued a “special assignment,” that instructed its sales staff to distribute a newsletter that addressed the issue of discharging separator water into the sewer system to the owners of dry-cleaning plants using PCE. The “special assignment” specifically instructed the sales staff to tell plant owners:

․ I would like you to take a few minutes to read this special Newsletter which we have prepared in order to inform you of an issue of importance.   The issue of discharge of separator wastewater.   You may have already read a number of articles in trade journals concerning this issue.   Street's [sic], however, thought it of enough importance to personally inform as many drycleaners as possible.   I will be glad to answer any questions you may have․

The record also reflects that Street met with William Stadig, a consulting engineer hired by Pilgrim, and a member of Pilgrim's staff, in November 1991, at Street's headquarters, to review existing environmental regulations, as applied to dry-cleaners, and new emission standards.   Although the final Izzo Report had not been issued, Street discussed the “California sewer issue” with Pilgrim's representatives and told Stadig about a file that Street maintained on “sewer issues.”   Street informed Stadig about alternative disposal methods for separator water, including evaporation and placing the wastewater in “cooling towers.”

Street also presented testimony controverting Corbin's testimony that he never received either the October 1991 “special assignment” or Street's August 1991 general letter that forwarded a bulletin to its field staff that also discussed the groundwater contamination in California and alternative methods of disposal for separator water.   However, Robert Thum, a former Street employee, who was trained by Corbin, contradicted Corbin's testimony and testified that he received both the August 1991 general letter, and the October 1991 special assignment.   Thum stated that in November 1991, he and Corbin discussed the issue of separator water leaking from sewer pipes with Guy Robertson, Jr., Pilgrim Enterprises's former director.   Thum and Corbin gave Robertson the bulletin attached to the October 1991 “special assignment” and discussed alternative methods of separator water disposal with Robertson.   Thum also recalled that Corbin had stated that this was an opportunity for Street to sell Pilgrim a new piece of equipment that Street had developed-the “Aquanator”-that was designed to remove PCE from separator water.31

ii. Did leaky sewer pipes proximately cause the contamination?

An essential element to any theory of negligence is proximate cause.32  Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).   Therefore, Turk had the burden to convince the jury that Street's alleged negligence, related to PCE escaping from the sewer pipes, proximately caused the contamination on its three properties.

Turk's expert, Dr. Phillip Bedient, testified that the primary cause of the PCE contamination was leaky sewer pipes.   He stated that he formed his opinion after reviewing documents related to the cleanup plans at the sites, visiting the sites, and looking down drain pipes.   He observed cracks and holes in the pipes through which the PCE could escape.   He testified that, because PCE is heavier than water, it sinks and migrates out of any cracks in a sewer pipe.   Based on the high concentration of PCE contamination found in the soil along the pipes, he concluded that the source of the contamination was the sewer pipes.   However, Street's experts did not agree with Bedient's conclusions.

Street's expert, Richard Adams, opined that the contamination at the three Turk sites was not caused by PCE leaking from the sewer pipes, but from releases and spills occurring (1) at the PCE storage tanks, (2) in the waste storage areas, and (3) inside the facilities. On appeal, Turk attacks Adams's testimony on this issue contending that it constituted “no evidence” because it was “conclusory” and “unreliable.”   Turk argues that Adams's opinion is not based on sound data, and that there exists an “analytical gap” between the data and his conclusions.

Street counters that Turk never objected to Adams testimony as “conclusory” or “unreliable.”   To preserve a complaint that expert testimony or evidence is unreliable, a party must object before trial or when the evidence is offered.   Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 410-11 (Tex.1998);  Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 665 (Tex.App.-Houston [1st Dist.] 1998, no pet.).   The trial court is the gatekeeper of expert evidence, and appellate courts cannot usurp that function.  Ellis, 971 S.W.2d at 411-12.   It is the complaining party's burden to provide the appellate court with record references showing that a complaint was preserved below.  Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex.1994);  see also Tex.R.App. P. 38.1(f), (h).

A review of the record reveals that no pre-trial objections were made to Adams's testimony.   However, objections were made at trial by Turk's counsel based on the following grounds:  (1) Adams's lack of qualifications; 33  (2) Adams was not designated to critique the report discussing PCE contamination in California;  (3) there was a lack of foundation for opinion regarding contamination at Turk's Hillcroft property because there was no evidence of spills or cracks in slabs at that site.

Though Turk (and Pilgrim) thoroughly cross-examined Adams, they never objected or moved to strike his testimony on the theory Turk now raises on appeal.   Accordingly, Turk's complaint about the reliability of Adams's testimony is waived.   See Rogers v. Stell, 835 S.W.2d 100, 101 (Tex.1992) (holding error not preserved when complaint on appeal not same as objection presented in trial court).

Even if Turk had properly preserved its objection for appeal, Adams's testimony was not conclusory or unreliable.   As a registered professional engineer in 17 states, including Texas, who is a certified groundwater professional with experience conducting over 1,000 environmental site investigations, Adams was qualified to render an opinion regarding the source contamination at the three Turk sites.

Adams testified that he formed his opinion regarding the source of the contamination after reviewing documents prepared by Pilgrim's environmental consulting firm, who conducted the initial site investigations, which contained data about the location and concentration of contamination at the sites.   Adams also visited each site.   Adams explained that based on the location, concentration, pattern, and accumulation of the contamination, as determined by Pilgrim's environmental consultants, in relation to the sewer pipes and the other possible sources, the source of the PCE contamination was not the sewer pipes.   The record in this case does not demonstrate an “analytical gap” between Adams's expert analysis and the data he relied on in making that analysis.   See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998) (stating that critical inquiry in determining admissibility of expert's opinion is whether there is “analytical gap” between opinion and basis on which it is founded).

Moreover, even without Adam's testimony, there was sufficient evidence for the jury to conclude that any PCE introduced into the sewer system was not the source of the contamination.   Testimony was presented that PCE spills occurred when PCE was delivered to Pilgrim's facilities because the PCE tanks would sometimes overflow when the PCE was heated by the sun and expanded.   Evidence was also offered that the drums used to store PCE wastes leaked.

Another of Street's experts, Dr. James Patterson, an environmental engineer, opined that, based on the patterns of contamination, separator water leaking from sewer pipes was not the cause of the contamination;  rather, the cause was PCE spills.   Dr. Patterson explained that sewer lines are designed so that water flows quickly enough through them to keep particles in suspension and prevent clogging even in the low portions of the pipes.   He referred to this as “scour velocity.”   Because of the “scour velocity,” he stated that any PCE in the sewer pipe would not leak, but would be “scoured” and carried through the pipe along with the water.

Based on Street's interrogatory answers, Dr. Patterson also testified that Pilgrim reported an average of 11 to 12 spills per facility with the average volume per spill being over five gallons of PCE. However, Dr. Patterson stated that although PCE wastes leaking from dumpsters were not a significant source of contamination at the sites, PCE could permeate concrete if spilled.

Pilgrim's witnesses testified that when a PCE spill occurred inside a facility, dirty clothes were used to soak up the PCE and then washed.   Other than this method, Pilgrim had no spill or leak prevention guidelines in place at its facilities.

The evidence also showed that Pilgrim received letters from the department of health informing it that its waste storage areas were not in compliance because they were unsecured and were not surrounded by a curb to prevent leaks or spillage.   Guy Robertson, Sr., testified that Pilgrim never placed curbs around the waste storage areas after receiving the warnings from the health department.

iii. Street's Advice Regarding Waste Disposal

Turk also contends that Adams's testimony does not negate Street's liability for contamination caused by PCE leaking from waste storage areas, but, in fact, supports this theory.   There is some evidence in the record that, before the mid-1980's, Street advised Pilgrim to dispose of used filter cartridges and still residues in the garbage, an accepted industry practice.   Adams testified that a source of contamination at the sites was waste storage areas, including dumpsters.

In 1984, the EPA enacted regulations requiring dry-cleaners to have their used filter cartridges and still residues disposed of by licensed waste disposal companies.   Although the regulations did not become effective until 1986, Pilgrim began having a waste disposal company haul away its filter and still residues in 1985.

Street introduced evidence that it tried to keep its customers informed about environmental regulations pertaining to the disposal of filter and still wastes.   Street also presented evidence that when the EPA issued new control technology guidelines in 1978 pertaining to the disposal of used filter cartridges and still residue, it informed its customers of these changes.   Specifically, Street informed its customers that pursuant to the new guidelines, filter cartridges should be drained for 24 hours before disposing of them in the garbage, and that still residues should be treated to reduce the amount of solvent in the waste.   The evidence showed that Pilgrim always drained its filter cartridges to recover PCE prior to disposal.34  When the EPA regulations changed in 1986, requiring that filter and distillation wastes be disposed of by licensed waste disposal companies, Street assisted Pilgrim in finding a waste disposal company to handle these wastes.

Street also presented evidence that, in anticipation of the change in the regulations in the early 1980's, it made a modification to its filtration and distillation equipment to allow for the maximum recovery of PCE. This modification was called the “solvent recovery system” and allowed a dry-cleaner to recover more than 99 percent of the residual PCE left in the filter cartridges.

In sum, the evidence showed that Pilgrim followed the EPA's regulations regarding the disposal of filter cartridges and still residues and that Street kept Pilgrim informed about these regulations.   Neither Pilgrim nor Turk presented any evidence that Street should have known that filter cartridges and still residues should not be disposed of in the garbage before the change in the regulations.

With regard to the issue of causation, one of Pilgrim's expert witnesses, Dr. Bruce Dale, opined that the amount of PCE released from filter cartridges and still residues in dumpsters would not have contributed to the contamination.   Dr. Dale testified that only a few drops at a time would be discharged.   He stated that any PCE that dripped from used filter cartridges or still residues would evaporate before it could reach the groundwater.

iv. Street's equipment

Turk also suggests that the overwhelming weight of the evidence showed that the damage to its three properties was caused by Street's negligence relating to equipment that it sold to Pilgrim.   Street sold stills and filter units to Pilgrim between 1974 and 1991.

Turk contends that Street's negligence in manufacturing its equipment caused damage to its property.   Turk asserts that (1) Street's water separator did not “separate” the PCE from the wastewater;  and (2) Street's equipment leaked PCE.

(a) Water Separator

Turk contends that Street was negligent in the design of its equipment because the water separator manufactured by Street did not completely remove all of the PCE from the wastewater.   It is not disputed that the water separator on Street's equipment did not completely remove the soluble PCE from the wastewater.   However, Beard testified that the purpose of the separator was to remove water from the PCE, not remove PCE from the water.   Street's equipment expert, Dr. Lee Swanger, reinforced this position by stating that the purpose of the water separator is to deliver clean PCE with a minimum of water back to the dry-cleaning process.   He opined that the water separator worked as designed and was 99.98 percent effective in removing water from the PCE.

(b) Check Valve

Turk also contends that the “check valve” on the Street filter unit, which controlled the flow of PCE into the unit, caused PCE leaks and spills.   Testimony was presented that the check valve on the filter unit caused PCE to back-up and overflow.   Corbin testified that after Pilgrim complained to Street, the design of the check valve was changed.

Guy Robertson, Sr., testified that some PCE spills occurred because of the check valve.   However, he stated that he did not consider the check valve to be a “major contributing factor” to the contamination.   Street's equipment expert also opined that, based on reasonable engineering probability, the check valve did not cause the contamination at Pilgrim's plants.   He stated that the spills complained of could have been prevented by closing the valves at night and resetting the pressure.   This testimony suggests that the problem was not the design of the check valves, but Pilgrim's operation of the equipment.   Adams also testified that interior spills were a “very minor factor” in the cause of the contamination.

The state of the record was such that the jury could well have concluded Street's negligence caused the contamination.   But it was the jury's province, not ours, to judge the credibility of the evidence and resolve conflicts or inconsistencies.  Trans Am. Holding Inc. v. Market-Antiques & Home Furnishings, Inc., 39 S.W.3d 640, 648 (Tex.App.-Houston [1st Dist.] 2000, pet. denied);  see also Murphy v. Texas Farmers Ins. Co., 982 S.W.2d 79, 85 (Tex.App.-Houston [1st Dist.] 1998) aff'd, 996 S.W.2d 873 (Tex.1999) (stating that jury is entitled to disbelieve witness even though that witness is neither impeached nor contradicted).

We conclude that there was sufficient evidence to support the jury's finding that Street either (1) acted with ordinary care, or (2) did not proximately cause the contamination at the three Turk properties.   We hold that the jury's verdict regarding Turk's negligence claim was not against the great weight and preponderance of the evidence.

d. Design Defect

When asked whether a design defect in the dry-cleaning equipment sold by Street was a producing cause of injury to the three Turk properties, the jury answered “no” for each.   With regard to this issue, the jury was instructed that “[a] ‘design defect’ is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.”   See State Indus., Inc. v. Corbitt, 925 S.W.2d 304, 306 (Tex.App.-Houston [1st Dist.] 1996, no writ) (providing same definition).

The Supreme Court has established a test for determining design defect.   See Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 (Tex.1979).   The test requires balancing the product's utility against the risks involved in its use in order to find that the design is unreasonably dangerous.   See id.   The risk-utility analysis involves consideration of several factors, including:  (1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use;  (2) the availability of a substitute product that would meet the same need and not be unsafe or unreasonably expensive;  (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;  (4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions;  and (5) the expectations of the ordinary consumer.   See id. at 846-47;  American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex.1997).

In Boatland of Houston, Inc. v. Bailey, the Texas Supreme Court discussed the standard of “defectiveness” as applied in design defect cases:

Whether a product was defectively designed requires a balancing by the jury of its utility against the likelihood of and gravity of injury from its use.   The jury may consider many factors before deciding whether a product's usefulness or desirability are outweighed by its risks.   Their finding on defectiveness may be influenced by evidence of a safer design that would have prevented the injury․ Because defectiveness of the product in question is determined in relation to safer alternatives, the fact that its risks could be diminished easily or cheaply may greatly influence the outcome of the case.

Whether a product was defectively designed must be judged against the technological context existing at the time of its manufacture.   Thus, when the plaintiff alleges that a product was defectively designed because it lacked a specific feature, attention may become focused on the feasibility of that feature, the capacity to provide the feature without greatly increasing the product's cost or impairing usefulness.   This feasibility is a relative, not an absolute, concept;  the more scientifically and economically feasible the alternative was, the more likely that a jury may find that the product was defectively designed.   A plaintiff may advance the argument that a safer alternative was feasible with evidence that it was in actual use or was available at the time of manufacture.   Feasibility may also be shown with evidence of the scientific and economic capacity to develop the safer alternative.   Thus, evidence of the actual use of, or capacity to use, safer alternatives is relevant insofar as it depicts the available scientific knowledge and the practicalities of applying that knowledge to a product's design.

609 S.W.2d 743, 745-46 (Tex.1980) (citations omitted).   Thus, implicit in the risk-utility analysis is the notion that a safer alternative design exists that would have prevented the plaintiff's claimed injuries.   If the plaintiff alleges that such a safer alternative design exists, then the jury will determine whether such alternative design was economically or technologically feasible.  Id.

With these guidelines in mind, we review the relevant evidence.

Turk argues that the overwhelming weight of the evidence established that (1) Street designed equipment that leaked PCE into the environment, and (2) Street failed to incorporate available technology that would have reduced or eliminated the leaks.

In the opinion of Pilgrim's equipment expert, Dr. Dale, Street's water separators were defective as designed.   According to Dr. Dale, at the time Street began marketing its equipment, the technology was available to remove PCE from wastewater.   Specifically, Dr. Dale discussed three types of technology that was available to Street to remove PCE from separator water.

The first was a carbon filter.   Dr. Dale stated that carbon filtration technology has been available since 1820.   In employing this technology, Dr. Dale explained that separator water would be directed through a container filled with carbon.   As the separator water flows over the carbon, the PCE is absorbed.

Turk contends that Street had developed ways to remove the PCE from the separator water using carbon, but it failed to either implement or market these innovations.   Evidence was presented that Street conducted tests in 1984 using a charcoal filter.   The tests showed that the filters were 99.9 percent effective in removing PCE from separator water.   Further tests conducted in 1984 using carbon “scrubbers” showed that the amount of PCE in separator water could be reduced to a non-detectable level using this method.   The evidence also showed that each carbon filter cost approximately $15, making it economically feasible, according to Turk.

The second method for removing PCE from separator water discussed by Dr. Dale is aeration or “air stripping.”   Dr. Dale explained aeration as follows:

Basically, you bubble air through water containing an organic material like [PCE]. And, again, [PCE] wants to get away from water.   So one way to do that is to go into the air and it simply travels up with the air out of the system so you literally bubble air through the separator water.

According to Dr. Dale, aeration has been a recognized method in the chemical engineering field since the early 1900's.

The other available method discussed by Dr. Dale was evaporation, which is the method Pilgrim began using in 1995 to remove PCE from separator water.   Evaporation is accomplished by boiling the separator water and evaporating the dissolved PCE.

According to Dr. Dale, carbon absorption, aeration, and evaporation were each available, cost-effective, and feasible methods that Street could have incorporated into their equipment to remove PCE from the separator water.   He also testified that there were sensors, which had been available since the 1960's, that could detect and alert dry-cleaners that PCE was present in separator water.

Street offered evidence that showed that the technologies discussed by Dr. Dale would not have reduced or eliminated the PCE leaks.   James Schulte, who worked in Street's laboratory, testified that there were two problems with the carbon filter, which Street discovered during testing:  (1) the “shell” of the filter rusted after use, and (2) the filter introduced large quantities of water back into the dry-cleaning process, which could damage clothes.

Beard explained the problems with carbon filters as follows:

It's my understanding that ․ our tests showed [a carbon device] could not be relied upon to consistently remove all the [PCE] from the separator water․

․ [T]he carbon eventually gets saturated and, therefore, it couldn't absorb anymore [PCE]. It's not easy to tell when ․ saturation [of the carbon filter] has occurred and that's why I said it couldn't consistently be relied upon to remove the [PCE] from the separator water․ [T]here was a problem ․ because the water would have probably caused rust on the metal cartridge and you could have got rust into the dry-cleaning system․

You can get a phenomena called channeling where certain parts of the carbon gets saturated, others don't, and the ․ water can take a channel through the carbon and bypass some of the effect of the carbon.

Dr. Swanger, Street's equipment expert, testified consistently with the testimony of Beard.   Dr. Swanger agreed that the carbon filter (1) does not uniformly remove PCE from water, (2) can become quickly saturated with PCE, and (3) has problems with “channeling.”   These problems are further compounded because it is difficult for dry-cleaners to know when the filters fail to remove PCE or when they become saturated.   Dr. Swanger stated that there is no practical or reliable way to test the separator water coming out of the filter to determine if the amount of dissolved PCE had been reduced.   Dr. Swanger also testified that the equipment capable of measuring the amount of dissolved PCE in separator water is expensive, costing $6,000.

With regard to aeration, Dr. Swanger stated that it does not always reduce the amount of PCE to a non-detectable level.   He concluded:  “If you can't get your separator water down to a nondetect level, then you still have a hazardous substance․”

Swanger also addressed evaporation.   Swanger stated that the bucket into which Street recommended that the wastewater be discharged from the water separator, had two purposes:  (1) allowing a visual inspection of the wastewater to determine whether free-phase PCE was present and (2) allowing dissolved PCE to evaporate.   According to tests conducted by Swanger, no special equipment is required for evaporation;  rather, allowing the separator water to sit for 12 hours before disposing of it results in 99.99 percent evaporation of the PCE.

Swanger also stated that the “Aquanator,” developed by Street, and provided to one of Pilgrim's plants in January 1992 free of charge, was an evaporator.   Beard testified that Street's environmental consultant, William Stadig, who met with Street in November 1991, decided not to recommend the Aquanator to Pilgrim because it was too expensive.35

As discussed above, Turk also contends that the check valve on Street's filter unit was defective resulting in interior PCE leaks and spills.   Dr. Dale testified that Guy Robertson, Jr., told him that the check valves on the filter units became clogged about every six months resulting in 50-gallon PCE spills.   Based on this information, Dr. Dale concluded that the check valve was defectively designed.   However, in Swanger's opinion:

The design of the check valve did not cause any contamination at the Pilgrim sites ․ [b]ecause the design of the check valve is the same as millions of other check valves in use around the world.   There is nothing wrong with this check valve.   It's still purchased and used every day․ The configuration of the valves provided for a valve right next to the check valve to shut off the flow on a daily basis and the ability to, if one wants to, to do maintenance and inspection of the check valve every four weeks when the cartridges are changed.   There is no defect in the configuration.   The configuration provides everything that's required.

The jury is the sole judge of the credibility of the witnesses and the weight of their testimony;  it may believe all, part, or none of controverted expert testimony.  Corbitt, 925 S.W.2d at 310.   Based on the evidence, the jury could have concluded that there were no feasible, alternative technologies that Street could have implemented to reduce or eliminate PCE leaks.

In addition, Turk also had to show that the alleged design defects were a producing cause of its damages.36  See Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 306 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).   As discussed above, the record contains evidence that neither separator water leaking from sewer pipes nor interior spills were the cause of the contamination;  rather, there was significant testimony that spills and leaks in the outside PCE storage areas were the cause of the contamination.

Viewing the evidence as we must, we conclude that the evidence was factually sufficient for the jury to find either that (1) the water separator and the check valve were not defectively designed, or (2) any design defect in Street's equipment was not the producing cause of Turk's damages.   We hold that the jury's verdict regarding Turk's design defect claim was not against the great weight and preponderance of the evidence.

e. Marketing Defect

The jury also answered “no” to the following question regarding Turk's three properties:  “Was there a defect in the marketing of the dry-cleaning equipment sold by Street at the time such dry-cleaning equipment left the possession of Street that was a producing cause of injury to Turk's property at the locations listed?”

A marketing defect occurs when a product is unreasonably dangerous because adequate warnings or instructions were not provided.  Sims v. Washex Mach. Corp., 932 S.W.2d 559, 561-62 (Tex.App.-Houston [1st Dist.] 1995, no writ) (citing Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Tex.1991)).   A marketing defect cause of action consists of five elements:  (1) a risk of harm that is inherent in the product or that may arise from the intended or reasonably anticipated use of the product must exist;  (2) the product supplier must actually know or reasonably foresee the risk of harm at the time the product is marketed;  (3) the product must possess a marketing defect;  (4) the absence of the warning and/or instructions must render the product unreasonably dangerous to the ultimate user or consumer of the product;  and (5) the failure to warn and/or instruct must constitute a causative nexus in the product user's injury.  Sims, 932 S.W.2d at 562.

Even a product that is safely designed and manufactured may be unreasonably dangerous as marketed because of a lack of adequate warnings or instructions.  Id.;  Malek v. Miller Brewing Co., 749 S.W.2d 521, 522 (Tex.App.-Houston [1st Dist.] 1988, writ denied).   And a product may be unreasonably dangerous if a manufacturer fails to warn of a foreseeable risk arising from the use of the product, and the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous.   Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.App.-Houston [1st.   Dist.] 2000, pet. denied);  Sims, 932 S.W.2d at 562.

Turk asserts that the overwhelming weight of the evidence showed that Street failed to provide adequate warnings about the possibility of PCE contamination caused by its equipment even after it knew of the danger.   The jury was properly instructed that an adequate warning is a warning given in such form that (1) it could reasonably be expected to catch the attention of the reasonably prudent person in the circumstances of its use;  and (2) its content must be comprehensible to the product's average user and convey a fair indication of the nature and extent of the danger, if any, and how to avoid it.   See Shop Rite Foods, Inc. v. Upjohn, 619 S.W.2d 574, 578 (Tex.Civ.App.-Amarillo 1981, writ ref'd n.r.e.);  Bituminous Cas. Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868, 872-73 (Tex.Civ.App.-Dallas 1974, writ ref'd n.r.e.).   A warning's adequacy depends upon the language used and the impression it is calculated to make upon the mind of the average user of the product.   See Bituminous Casualty Corp., 518 S.W.2d at 873.   An “adequate warning” also warns with the “degree of intensity” to cause a reasonable person to exercise care as the risk requires.   See id.

We first address whether Street failed to provide an “adequate warning” relating to the check valve on its filter unit.   The owner's manual provided by Street for its “Puritan Vanguard Filter” contained the following instructions and warnings relating to the check valve on a page entitled “Important Operating Points:”

Check periodically to be sure that the solvent is not draining from the filter through the check valve and pump into the base tank.   You can determine this by watching the sight glass any time the pump has been turned off for 15 minutes or more.   If a substantial amount of air continues to appear in the sight glass after the pump is turned on and solvent has started to flow, the filter has been draining.   The check valve either is blocked from closing by lint or dirt and should be cleaned, or it is worn and should be replaced.   The filter should remain full of solvent at all times for best cartridge performance and life.   CAUTION:  It is possible, also, that if the filter drains back into the base tank the base tank may over-flow.

(Emphasis added.)   Based on this evidence, the jury could have found that Street provided an adequate warning to its customers regarding the possibility that the check valve could cause a PCE over flow.

We next address whether Street should have warned Pilgrim that separator water contained soluble PCE that could pose an environmental threat.   At trial, it was essential for Turk to show that Street knew or should have known of a potential risk of harm presented by the water separator, but marketed it without adequately warning of the danger or providing instructions for safe use.37  See Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978);  Crocker v. Winthrop Labs., 514 S.W.2d 429, 433 (Tex.1974).   The relevant inquiry becomes whether Street warned of the environmental dangers associated with separator water when such risk became foreseeable.   As discussed above relating to Turk's negligence claim, Street presented evidence from which a jury could have concluded that it informed Pilgrim of possible environmental risks associated with separator water as soon it became aware of such risks.

The failure to warn or instruct also must constitute a causative nexus in the product user's injury.  Jaimes, 21 S.W.3d at 306.   A plaintiff cannot establish a causative nexus if the evidence shows that the product user was already aware of the danger.  Id. The record contains evidence that suggests Pilgrim received information and had knowledge that separator water contained soluble PCE. Such evidence included:  (1) Pilgrim was given material safety data sheets by PCE manufacturers since the mid-1970's that disclosed PCE is soluble in water, and (2) Pilgrim was a member of dry-cleaning trade associations, such as IFI, and received trade journals from these associations that contained information relating to concerns about PCE in separator water.

Doug Mulvaney, Pilgrim's in-house counsel, testified that he became aware that separator water contained PCE in early 1989.   At that time, the municipal utility district for Pilgrim's Jones Road plant attempted to impose a surcharge to treat the wastewater from that plant because it contained PCE. Mulvaney hired an outside environmental engineer and an environmental attorney who both informed him that the PCE in the separator water “wasn't a problem.”

Some of Pilgrim's plant managers also testified that they were aware that separator water contained PCE. For example, Randy Quentin, who worked for Pilgrim from 1976 until 1996, and managed the Hillcroft location from 1982 to 1986, testified that he has known that separator water contains PCE since he started working in the dry-cleaning business in 1972.   Moreover, as discussed in relation to Pilgrim's negligence and defective design claims, there is abundant evidence in the record from which the jury could have concluded that the PCE contamination was not caused by separator water leaking from sewer pipes, but from PCE leaks and spills.

Based on the record before us, there was factually sufficient evidence for the jury to find either that (1) the risk associated with the separator water was not foreseeable prior to the time Street warned Pilgrim of the risks, or (2) Street's failure to warn was not the cause of the contamination.

We overrule Turk's issue one.

2. Directed Verdict

In issue two, Pilgrim attacks the trial court's directed verdict on its claim for breach of fiduciary duty.

a. Standard of Review

A directed verdict is appropriate when reasonable minds can draw only one conclusion from the evidence.  Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978);  Smith, 23 S.W.3d at 476;  M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.-Houston [1st Dist.] 1987, no writ).   In evaluating a directed verdict, we determine if there was legally sufficient evidence that would support each of the elements of the cause of action.  Smith, 23 S.W.3d at 476;  M.J. Sheridan, 731 S.W.2d at 623.   If Pilgrim introduced some evidence on each of the elements for breach of fiduciary duty, the trial court erred in granting Street's motion for directed verdict.  Smith, 23 S.W.3d at 476;  see also M.J. Sheridan, 731 S.W.2d at 624.   In evaluating the evidence, we examine it in the light most favorable to the party against whom the verdict was rendered, and disregard all contrary evidence and inferences.  Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-04 (Tex.1988);  Smith, 23 S.W.3d at 476.

b. Fiduciary Duty

There are two types of fiduciary relationships.   The first is a formal fiduciary relationship, which arises as a matter of law, and includes the relationships between attorney and client, principal and agent, partners, and joint venturers.  Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998);  Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston [14th Dist.] 1997, pet. denied).   The second is an informal fiduciary relationship, which may arise from “a moral, social, domestic or purely personal relationship of trust and confidence, generally called a confidential relationship.”   Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287 (Tex.1998).   A confidential relationship exists in cases in which “ ‘influence has been acquired and abused, in which confidence has been reposed and betrayed.’ ”  Id. (quoting Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (1992));  see also Querner v. Rindfuss, 966 S.W.2d 661, 667 (Tex.App.-San Antonio 1998, pet. denied).

To impose an informal fiduciary duty in a business transaction, the requisite special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.  CAT Contracting, 964 S.W.2d at 288;  Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex.1997).   Confidential relationships may arise when the parties have dealt with each other in such a manner for a long period of time that one party is justified in expecting the other to act in its best interest.  Morris, 981 S.W.2d 667, 674 (Tex.1998).   However, the fact that one businessman trusts another and relies on another to perform a contract does not give rise to a confidential relationship because something apart from the transaction between the parties is required.   See Crim Truck, 823 S.W.2d at 594;  Stephanz v. Laird, 846 S.W.2d 895, 902 (Tex.App.-Houston [1st Dist.] 1993, writ denied);  Seymour v. Am. Engine & Grinding Co., 956 S.W.2d 49, 60 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

Although the existence of a confidential relationship is ordinarily a question of fact, where there is no evidence to establish the relationship, it is a question of law.   See Seymour, 956 S.W.2d at 60 (affirming directed verdict on breach of fiduciary duty claim because evidence insufficient to support claims as matter of law);  see also Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex.App.-Houston [1st Dist.] 1996, no writ) (affirming granting of summary judgment on plaintiff's claim for breach of fiduciary duty on basis that there was no summary judgment evidence to suggest existence of fiduciary relationship);  Miller-Rogaska, Inc. v. Bank One, Tex., N.A., 931 S.W.2d 655, 663 (Tex.App.-Dallas 1996, no writ) (same).

Pilgrim contends the following facts constitute evidence on which a jury could find a fiduciary relationship:

1.  Street's representative, Harold Corbin, had complete access to Pilgrim's facilities, but Street's competitors did not.

2.  Corbin testified that he advised Pilgrim regarding what purchases to make and that he knew that Pilgrim followed his advice “98 percent of the time.”

3.  Corbin stated that had he been told about the possibility of PCE losses, he would have passed that information to Pilgrim.

4.  Corbin stated that Street assigned him the job of becoming Pilgrim's “vice-president of the [dry] cleaning room.”

5.  Guy Robertson, Sr., testified that there was a time when Pilgrim was expanding in Houston that he spoke to Corbin either every night, every other day, or at least twice a week to get “a weather report” on Pilgrim's operations because Robertson could not visit all of Pilgrim's facilities.

6.  For 20 years, Corbin filled a “report card” evaluating the performance of Pilgrim's dry-cleaning plants and would give the evaluations to Robertson.

7.  Corbin helped teach the dry-cleaning business to Guy Robertson, Jr.

8.  Corbin helped in selecting Pilgrim's waste disposal company and acted as an intermediary between it and Pilgrim.

9.  Street's advertisements solicited reliance on its dry-cleaning technicians to insure that no PCE was lost.

10.  Street had scientific knowledge about Pilgrim's processes that Pilgrim did not have.

11.  Street had been doing business with the Robertson family for over 50 years, i.e., before Pilgrim existed.

We begin our analysis by noting that a fiduciary relationship is an extraordinary one that the law does not recognize lightly.  Stephanz, 846 S.W.2d at 901.   To determine the existence of a confidential or fiduciary relationship, a court must examine the actualities of the relationship between the parties involved.  Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.1962);  Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 897 (Tex.App.-Dallas 2000, pet. denied).   In other words, the evidence relied on by Pilgrim to support a fiduciary relationship must be put into context with other evidence introduced at trial.

As the Crim Truck court made clear, particularly in the business arena, trust and reliance alone are not sufficient ingredients to create a fiduciary relationship because “[t]he fact that one business man trusts another, and relies upon his promise to perform a contract, does not rise to a confidential relationship.”  Crim Truck, 823 S.W.2d at 594-95 (emphasis added);  see also Schlumberger Tech. Corp., 959 S.W.2d at 177 (stating subjective trust does not convert business transaction into fiduciary relationship).   Thus, evidence that Pilgrim trusted Street to do as it said it would, is not, without something more, evidence which can support a confidential relationship.   See ARA Automotive Group v. Cen. Garage, Inc., 124 F.3d 720, 726-27 (5th Cir.1997) (applying Texas law, court found no fiduciary duty between manufacturer and distributor-as a matter of law-despite a 36-year history of oral and written business agreements, joint undertakings, shared confidences, cooperative ventures, and close personal relationships between executives of the parties).

Additionally, the fact that the relationship has been a cordial one, of long duration, is not alone proof of a confidential relationship.   See Crim Truck, 823 S.W.2d at 595;  Farah, 927 S.W.2d at 675.   Texas courts have found a business relationship, which continued over many years, to not be a confidential relationship.   See, e.g., Crim. Truck, 823 S.W.2d at 595-96 (finding 42-year relationship was insufficient to create fiduciary or confidential relationship).

We reiterate that to impose an informal fiduciary duty in a business transaction, the special relationship of trust and confidence must exist prior to, and apart from, the agreement made the basis of the suit.   See Associated Indem., 964 S.W.2d at 287-88;  Schlumberger Tech. Corp., 959 S.W.2d at 177.   One party cannot transform a business relationship into a confidential one merely by placing trust and confidence in the other party.   There must be additional circumstances, or a relationship that induces the trusting party to relax the care and vigilance that it would ordinarily exercise for its own protection.   Here, Pilgrim failed to offer any evidence that a special relationship of trust and confidence existed apart from the business relationship made the basis of the suit.38  Rather, all of the facts relied on by Pilgrim relate to, or arose out of, Street's agreement to provide technical services to Pilgrim.39  Additionally, fiduciary relationships juxtapose trust and dependence on one side with dominance and influence on the other.   See Texas Bank and Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex.1980).   Pilgrim's relationship with Street more closely resembles an arm's length business transaction.   Street provided a specialized service, but it was Pilgrim, an experienced dry-cleaner, who defined the parameters of the relationship and the extent to which it relied on Street's advice.   Pilgrim was not in a dependent position, lacking in business acumen or knowledge of the basic principles involved.   To the contrary, the evidence showed that (1) the Robertson family members were experienced dry-cleaners, (2) Pilgrim had on-site managers at its plants who dealt with environmental compliance issues, and (3) Pilgrim had in-house legal counsel.

Viewing the record as we must, we conclude the trial court correctly directed a verdict on Pilgrim's breach of fiduciary duty claim.

We overrule Pilgrim's issue two.

CONCLUSION

As discussed above, the portion of the trial court's judgment awarding Pilgrim damages under the Solid Waste Disposal Act is reversed, and the cause is remanded for further proceedings consistent with this opinion.   The remainder of judgment is affirmed.

FOOTNOTES

1.   The related entities are Pilgrim Enterprises, Inc.;   Pilgrim Convenience, Inc.;   R & G No. 1, Inc.;   R & G No. 2, Inc.;   R & G No. 3, Inc.;   Pilgrim Laundry Company, Inc.;   Pilgrim Equipment Co., Inc.;   R.F.S., Inc. No. 8;  R.F.S., Inc. No. 11;  R.F.S., Inc. No. 17;  S & R No. 2, Ltd.;   PLC No. 11 Joint Venture;  Isabella Enterprises, Inc. Liquidating Trust d/b/a Pilgrim Enterprises;  Isabella Convenience, Inc. Liquidating Trust d/b/a Pilgrim Convenience Pilgrim Enterprises, Inc.

2.   Other parties affiliated with Jack Turk involved in this case are Turk Investments, Ltd., L.L.P.;   Robert Turk as Trustee to the Jerald Scott Turk 1990 Heritage Trust;  Marilyn Altman Rose;  Jayne Terri Paul;  Cyndi Altman;  and Craig Altman.

3.   See Tex. Health & Safety Code Ann. §§ 361.001-361.754 (Vernon 2001).

4.   Street was unsuccessful in its attempt to overturn the trial court's sanction through a mandamus proceeding.   In this appeal, Street asserts a conditional cross-point that the trial court abused its discretion by striking its affirmative defenses;  however, because of the disposition of Pilgrim's appeal, we need not address this issue.

5.   Section 361.344 reads in relevant part: § 361.344. Cost Recovery by Liable Party or Third Party(a) A person who conducts a removal or remedial action that is approved by the commission and is necessary to address a release or threatened release may bring suit in a district court to recover the reasonable and necessary costs of that action and other costs as the court, in its discretion, considers reasonable․․(c) To recover costs under this section in a proceeding that is not an appeal proceeding or an action brought by the attorney general under this subchapter, the person seeking cost recovery must have made reasonable attempts to notify the person against whom cost recovery is sought:(1) of the existence of the release or threatened release;  and(2) that the person seeking cost recovery intended to take steps to eliminate the release or threatened release.(d) The court shall determine the amount of cost recovery according to the criteria prescribed by Section 361.343.Tex. Health & Safety Code Ann. § 361.344 (Vernon 2001).

6.   In support of its position that Street was not entitled to a jury trial on the SWDA claim, Pilgrim argues that the supreme court held in Texas Ass'n of Bus. v. Texas Air Control Bd. that the constitutional right to a jury trial does not apply to SWDA proceedings.   However, Texas Ass'n of Bus. is inapposite to this case because it involved the appeal of an administrative order assessing fines pursuant to SWDA, not a cost recovery action initiated in district court as in this case.   See 852 S.W.2d 440, 450-51 (Tex.1993).

7.   Several provisions of sections 361.343 and 361.344 state that the “court” shall make certain determinations relating to cost recovery actions.   Tex. Health & Safety Code Ann. §§ 361.343, 361.344.   According to Pilgrim, this evinces the legislature's intent to have the cost recovery action determined by the trial judge instead of the jury.   We disagree.   In cases in which the jury is acting as the fact-finder, the word “court” means the trial judge and the jury acting together.   See Univ. of Texas at Austin v. Ables, 914 S.W.2d 712, 718 n. 6 (Tex.App.-Austin 1996, no writ) (“It should go without saying that the word ‘court’ means the court acting with the jury in cases tried before both together.”).  “Notwithstanding lawyer slang, the words ‘court’ and ‘judge’ are not synonyms in either ordinary or legal usage.”  Id. (citing Nalle v. City of Austin, 101 Tex. 48, 104 S.W. 1050, 1053 (1907) and Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App.-Dallas 1963, no writ)).

8.   After deciding that Pilgrim's SWDA claim should not be decided by the jury, the trial court, in response to Street's request, filed findings of fact and conclusions of law.   To the extent that there were fact issues to be resolved, they should have been resolved by the jury.   However, if Street's liability can be determined as a matter of law, then it was not proper for the trial court to enter findings of fact and conclusions of law.   See McCollum v. Red River Valley Pub. Co., 352 S.W.2d 144, 145 (Tex.Civ.App.-Amarillo 1961, writ ref'd n.r.e.);   see also Bayou Drilling Co. v. Baillio, 312 S.W.2d 705, 710 (Tex.Civ.App.-Houston 1958, writ ref'd n.r.e.).   It is, therefore, proper for us to consider this case as if no findings of fact and conclusions of law had been filed. McCollum, 352 S.W.2d at 145.

9.   The relevant provisions of section 361.271 read: § 361.271. Persons Responsible for Solid Waste(a) Unless otherwise defined in applicable statutes and rules, a person is responsible for solid waste if the person:․(3) by contract, agreement, or otherwise, arranged to process, store, or dispose of, or arranged with a transporter for transport to process, store, or dispose of, solid waste owned or possessed by the person, by any other person or entity at:(A) the solid waste facility owned or operated by another person or entity that contains the solid waste;  or(B) the site to which the solid waste was transported that contains the solid waste․Tex. Health & Safety Code Ann. § 361.271 (Vernon 2001).

10.   We discuss infra the equitable factors listed in section 361.343, which the trial court applies in apportioning costs.

11.   Stanley Mathews, Street's president from 1981 until 1991, testified as to this fact, which is otherwise uncontroverted in the record.

12.   Although Street does not dispute that Corbin poured PCE-waste into the sewer at Pilgrim's facilities, it disputes the amount and frequency of such disposals.   Street contends each vial that was used in the testing the detergent level contained only a few cc's of PCE. Corbin testified he poured vials containing PCE-waste into Pilgrim's sinks and commodes thousands of times.   Some evidence exists in the record that the sewer pipes may have leaked at Pilgrim's plants, allowing the PCE-waste to seep into the soil at Pilgrim's facilities.

13.   42 U.S.C. §§ 9601-9675 (1997).

14.   A remedial statute has been defined as “one which introduces a new regulation for the advancement of the public welfare or conducive to the public good, one enacted to afford a remedy, or one intended to correct defects, mistakes, and omissions in the laws of the State.   A remedial statute generally addresses remedies or procedures.”  Rey v. Acosta, 860 S.W.2d 654, 657 (Tex.App.-El Paso 1993, no writ).

15.   Pilgrim also contends that Street's arranger status is established by Street recommending certain dry-cleaning equipment and processes, supervising the installation of equipment, periodic and routine inspection and maintenance of equipment, and periodic testing of equipment.   However, Pilgrim fails to explain how such evidence supports Street's arranger status, and we fail to see the connection.

16.   Pilgrim's former president, Guy Robertson, Sr., testified that Corbin instructed Pilgrim to dispose of its used filter cartridges and still residues in the trash, which was the industry practice at the time.   However, Robertson also admitted that this was already Pilgrim's method of disposal of these wastes at the time Corbin gave Pilgrim such instruction.   Corbin testified that he never instructed Pilgrim to dispose of still residues in the trash.   Thus, it is not clear that such evidence, as to disposal of used filter cartridges and still residues, supports a finding of arranger status for Street.

17.   RCRA directs the EPA to establish a comprehensive “cradle to grave” system regulating the generation, transport, storage, treatment, and disposal of hazardous wastes.   See 42 U.S.C. §§ 6921-6939b (1994).

18.   We note that most federal courts have held that, because CERCLA is a strict liability statute, plaintiffs are generally not required to prove causation to establish liability.   See OHM Remediation Servs. v. Evans Cooperage Co., Inc., 116 F.3d 1574, 1578-79 (5th Cir.1997).

19.   This is similar to how “causation” is viewed by most federal courts in CERCLA contribution cases.   See Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 656-57 (6th Cir.2000) (stating that consideration of causation in CERCLA contribution action is proper only in allocating response costs, not in determining liability).

20.   See Health & Safety Code Ann. §§ 361.601-.613 (Vernon 2001) (setting forth requirements and parameters of Texas Voluntary Cleanup Program).

21.   Certain activities are excluded from the statutory definition of “release,” which are not relevant to this case.   See Tex. Health & Safety Code § 361.003(28)(A)-(E) (Vernon 2001).

22.   Pilgrim also offered evidence that of the $7,094,940 needed for the remedial action, $6,799,104 was attributable to Street.

23.   In the February 1, 1996 correspondence, the TNRCC states that it is approving Pilgrim's closure plans and not the “actual cleanup activities.”   However, at the time this lawsuit was brought and tried, cleanup activities at a majority of the sites were still ongoing and would be for some time.   Thus, it was sufficient for Pilgrim to show that the TNRCC approved the closure plans, which necessarily included the proposed remedial activities.

24.   Although the language of Rule 279 changed when the rule was amended in 1988, we find the reasoning of these cases persuasive.   See Tex.R. Civ. P. 279, 136 Tex. 526-27 (1941, amended 1988).

25.   Rules of appellate procedure do not permit remand for a separate trial on unliquidated damages when liability is contested;  however, good cause exists in this case to support a suspension of the rule.   See Tex.R.App. P. 44.1(b);  see also id. 2 (stating appellate court may suspend rule's operation in particular case and order different procedure).   Because the issues relating to Street's SWDA liability were properly decided as a matter of law, and the trial judge determines the ultimate award of damages, this is not a case that presents a risk of confusion for the jury.   The interests of justice warrant a new trial on the issue of damages alone under these novel circumstances.   See Browning Oil Co. v. Luecke, 38 S.W.3d 625, 647 n. 31 (Tex.App.-Austin 2000, pet. filed) (holding damages issue alone can be remanded because trial was bifurcated-bench trial on liability and jury trial on damages;  thus, remanding damages alone will not cause jury confusion).

FN26.  We construe this as a challenge to the factual sufficiency of the evidence.   See Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 90 (Tex.App.-El Paso 1995, writ denied) (stating that appellant's challenge to jury's findings on basis they are contrary to overwhelming weight of evidence can only be construed as challenge to factual sufficiency of the evidence)..  FN26.  We construe this as a challenge to the factual sufficiency of the evidence.   See Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 90 (Tex.App.-El Paso 1995, writ denied) (stating that appellant's challenge to jury's findings on basis they are contrary to overwhelming weight of evidence can only be construed as challenge to factual sufficiency of the evidence).

FN27.  Turk did not challenge the jury's finding with regard to its nuisance claim..  FN27.  Turk did not challenge the jury's finding with regard to its nuisance claim.

FN28.  Pilgrim states in a footnote in the reply that it is contemporaneously filing, in the alternative, a motion for new trial. This apparently refers to the motion for new trial discussed above and filed by Pilgrim on the same day as the reply..  FN28.  Pilgrim states in a footnote in the reply that it is contemporaneously filing, in the alternative, a motion for new trial. This apparently refers to the motion for new trial discussed above and filed by Pilgrim on the same day as the reply.

FN29.  Turk contends that the standard of review for both legal and factual sufficiency should be modified in this case.   However, Turk does not assert a legal sufficiency challenge.   Turk does contend, as discussed infra, that the testimony of one of Street's experts is inadmissible and constitutes “no evidence,” but in this case such an assertion does not equate to a challenge that the jury's verdict is not supported by legally sufficient evidence..  FN29.  Turk contends that the standard of review for both legal and factual sufficiency should be modified in this case.   However, Turk does not assert a legal sufficiency challenge.   Turk does contend, as discussed infra, that the testimony of one of Street's experts is inadmissible and constitutes “no evidence,” but in this case such an assertion does not equate to a challenge that the jury's verdict is not supported by legally sufficient evidence.

FN30.  The testimony at trial was that the federal drinking water standard sets the maximum amount of PCE allowed in drinking water at five parts per billion..  FN30.  The testimony at trial was that the federal drinking water standard sets the maximum amount of PCE allowed in drinking water at five parts per billion.

FN31.  Thum also testified that Street installed an “Aquanator” in one of Pilgrim's plants in early 1992 free of charge.   Pilgrim never bought any additional Aquanators because it found an alternative method for disposing of wastewater..  FN31.  Thum also testified that Street installed an “Aquanator” in one of Pilgrim's plants in early 1992 free of charge.   Pilgrim never bought any additional Aquanators because it found an alternative method for disposing of wastewater.

FN32.  The jury in this case was instructed,“Proximate cause” means that cause which, in the natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without such cause such event would not have occurred.   In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.   There may be more than one proximate cause of an event..  FN32.  The jury in this case was instructed,“Proximate cause” means that cause which, in the natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without such cause such event would not have occurred.   In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.   There may be more than one proximate cause of an event.

FN33.  Turk's counsel objected that Adams was not qualified to give an opinion on issues relating to the Izzo Report.   The trial court never ruled on Turk's objection regarding Adams's qualifications on this issue.   As such, this objection is waived on appeal.   See Tex.R.App. P. 33.1(a).   Turk's counsel also objected that Adams was not qualified to testify about the reasonable and necessary costs of cleanup;  the trial court overruled that objection.   However, on appeal, Turk is challenging the reliability of Adams's testimony regarding the PCE contamination patterns and the cause of the contamination, not damages..  FN33.  Turk's counsel objected that Adams was not qualified to give an opinion on issues relating to the Izzo Report.   The trial court never ruled on Turk's objection regarding Adams's qualifications on this issue.   As such, this objection is waived on appeal.   See Tex.R.App. P. 33.1(a).   Turk's counsel also objected that Adams was not qualified to testify about the reasonable and necessary costs of cleanup;  the trial court overruled that objection.   However, on appeal, Turk is challenging the reliability of Adams's testimony regarding the PCE contamination patterns and the cause of the contamination, not damages.

FN34.  Street's president testified that a cartridge could contain one gallon of PCE even after draining..  FN34.  Street's president testified that a cartridge could contain one gallon of PCE even after draining.

FN35.  The evidence also showed that Street tested other methods to remove the PCE from the separator water without success.   For example, Street tried running the separator water through a “Lewcott sponge.”   However, Schulte testified that it would not have worked on a “large scale.”   Street also tried a product, “Conweb,” that was a “fibrous absorbent that ․ was intended to suck up spills of organic liquids․” But Street found that Conweb did not significantly reduce the PCE in the water and eventually released back into the water what it had absorbed..  FN35.  The evidence also showed that Street tested other methods to remove the PCE from the separator water without success.   For example, Street tried running the separator water through a “Lewcott sponge.”   However, Schulte testified that it would not have worked on a “large scale.”   Street also tried a product, “Conweb,” that was a “fibrous absorbent that ․ was intended to suck up spills of organic liquids․” But Street found that Conweb did not significantly reduce the PCE in the water and eventually released back into the water what it had absorbed.

FN36. “Producing cause” was properly defined for the jury as “an efficient, exciting, or contributing cause that, in a natural sequence, produces the injuries.   There may be more than one producing cause.”   See Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975)..  FN36. “Producing cause” was properly defined for the jury as “an efficient, exciting, or contributing cause that, in a natural sequence, produces the injuries.   There may be more than one producing cause.”   See Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975).

FN37.  The jury was instructed as follows:A “marketing defect” with respect to a product means the failure to give adequate warnings of the product's dangers that were known or by the application of reasonably developed human skill and foresight should have been known, or the failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed..  FN37.  The jury was instructed as follows:A “marketing defect” with respect to a product means the failure to give adequate warnings of the product's dangers that were known or by the application of reasonably developed human skill and foresight should have been known, or the failure to give adequate instructions to avoid such dangers, which failure rendered the product unreasonably dangerous as marketed.

FN38.  Pilgrim contends that the Robertsons' personal friendship toward Harold Corbin forms the basis for a fiduciary relationship.   However, we reiterate that subjective feelings of trust cannot support a fiduciary relationship.   Additionally, any friendship that developed between the Robertsons and Corbin arose out of the existing business relationship between Street and Pilgrim, and did not induce the business relationship to form.   Cf. Carr v. Weiss, 984 S.W.2d 753, 765 (Tex.App.-Amarillo 1999, pet. denied) (holding evidence was sufficient to support jury's finding of breach of fiduciary duty in case in which parties had been “best friends” for years before they entered into business transaction that formed basis of suit)..  FN38.  Pilgrim contends that the Robertsons' personal friendship toward Harold Corbin forms the basis for a fiduciary relationship.   However, we reiterate that subjective feelings of trust cannot support a fiduciary relationship.   Additionally, any friendship that developed between the Robertsons and Corbin arose out of the existing business relationship between Street and Pilgrim, and did not induce the business relationship to form.   Cf. Carr v. Weiss, 984 S.W.2d 753, 765 (Tex.App.-Amarillo 1999, pet. denied) (holding evidence was sufficient to support jury's finding of breach of fiduciary duty in case in which parties had been “best friends” for years before they entered into business transaction that formed basis of suit).

FN39.  If we were to agree with Pilgrim's position, long-term customers of electricians, plumbers, and auto mechanics, who rely on and trust their service providers to give them sound advice and do good work, could in good faith argue that they were owed a fiduciary duty in the context of those relationships..  FN39.  If we were to agree with Pilgrim's position, long-term customers of electricians, plumbers, and auto mechanics, who rely on and trust their service providers to give them sound advice and do good work, could in good faith argue that they were owed a fiduciary duty in the context of those relationships.

MIRABAL, Justice.

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