From: "Saved by Windows Internet Explorer 7" Subject: IN THE SUPREME COURT OF TEXAS Date: Sun, 14 Oct 2007 10:41:24 -0500 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.supreme.courts.state.tx.us/historical/2007/oct/060602.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.0.6000.16545 IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

 

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No. 06-0602

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BFI Waste Systems = of North=20 America, Inc. and

Browning-Ferris = Industries,=20 Inc., Petitioners,

 

v.

 

North Alamo Water = Supply=20 Corporation,

Jimmy Steidinger, Engelman = Irrigation=20 District and

Hidalgo County Drainage = District=20 No. 1, Respondents

 

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On Petition for Review from = the

Court of Appeals for the Thirteenth = District of=20 Texas

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PER = CURIAM

 

 

           =20 Petitioners BFI Waste Systems of North America, Inc. and = Browning-Ferris=20 Industries, Inc. operate a landfill in Hidalgo County that requires a discharge = permit=20 from the Hidalgo County Drainage District No. 1, one of the respondents. = Petitioners obtained the permit in 1993 as part of a settlement among=20 petitioners, the Drainage District, and the other three respondents, = North Alamo=20 Water Supply Corp., Jimmy Steidinger, and = Engelman Irrigation District. The settlement = agreement=20 imposed certain restrictions on the operation of the landfill.

           =20 In 2002, petitioners obtained permission from the Texas = Commission on=20 Environmental Quality to expand the landfill vertically. Respondents = brought=20 this action against petitioners, alleging that the expansion breached = the=20 settlement agreement. Based on a verdict favorable to respondents, the = trial=20 court issued an injunction against petitioners and awarded respondents = attorney=20 fees. The court of appeals reversed the injunction but awarded = North Alamo damages as found by the jury. ___ S.W.3d ___ (Tex. = App.=97Corpus = Christi).=20 Petitioners and respondents have all petitioned this Court for = review.

           =20 Footnote 6 of the court of appeals=92 opinion comments on the = effect of=20 petitioners=92 breach on the discharge permit:

 

           =20 At trial, North Alamo was the = only party=20 that presented evidence of damages. We note, however, that because the=20 Settlement Agreement provided for the issuance of a drainage permit by = the=20 Hidalgo County Drainage District No. 1 in consideration of BFI=92s compliance with Permit 1948 and certain = enumerated=20 provisions, and the jury found that BFI materially breached that = agreement, the=20 Drainage District is excused from its obligation to perform under the = Settlement=20 Agreement. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196, 47 Tex. Sup. Ct. J. 461 (Tex. 2004) = (=93It is a=20 fundamental principle of contract law that when one party to a contract = commits=20 a material breach of that contract, the other party is discharged or = excused=20 from further performance.=94).

 

All parties=20 agree that the validity of the discharge permit was not raised in the = trial=20 court or the court of appeals. Petitioners argue that footnote 6 should = not=20 prejudice any future litigation over the = discharge=20 permit. We agree. Footnote 6 was outside the issues before the court of = appeals=20 and thus cannot determine the validity of the permit.

           =20 The petitions for review are denied.

Opinion delivered: = October 12,=20 2007