      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00316-CV



                                 Matthew A. Pryor, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
      NO. D-1-GN-16-000507, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Matthew A. Pryor appeals the trial court’s summary judgment in favor of the State

of Texas. The State brought an enforcement action against Pryor alleging that he was the owner of

real property who had abandoned three underground storage tanks on his land without closing them

in accordance with state law and seeking civil penalties and injunctive relief. See Tex. Water Code

§§ 7.101 (prohibiting person to “cause, suffer, allow, or permit” statutory, rule, order, or permit

violation), .102 (providing for civil penalty of not less than $50 nor greater than $25,000 for each

day of each violation), .105 (providing that upon request of executive director of Texas Commission

on Environmental Quality (TCEQ), attorney general shall institute civil suit in name of State for

injunctive relief and/or civil penalties), 26.341–.367 (regulating, in relevant part, underground

storage tanks). The parties filed competing motions for summary judgment, and the trial court
denied Pryor’s motion and granted the State’s motion. For the reasons that follow, we affirm the

trial court’s judgment.


                                 STATUTORY FRAMEWORK

                Finding that “leaking underground storage tanks containing certain hazardous, toxic,

or otherwise harmful substances” threaten groundwater and surface water resources of the State, the

Legislature has authorized the State to require the use of “all reasonable methods” to maintain and

protect water quality. See id. § 26.341. TCEQ is authorized to develop and administer the State’s

underground storage tank programs under chapter 26, subchapter I of the Texas Water Code

and to adopt rules necessary to implement the programs. See id. § 26.345; see also generally

30 Tex. Admin Code §§ 334.1–.606 (2016) (Tex. Comm’n on Envtl. Quality) (Underground and

Above Ground Storage Tanks).1 An underground storage tank includes “any one or combination of

underground tanks and any connecting underground pipes used to contain an accumulation of

regulated substances, the volume of which, including the volume of the connecting underground

pipes, is 10 percent or more beneath the surface of the ground.” Tex. Water Code § 26.342(17). A

“regulated substance” includes “petroleum, including crude oil or a fraction of it” and “any other

substance designated by the commission.” Id. § 26.343. Motor gasoline and diesel fuel are regulated

substances designated by TCEQ. See 30 Tex. Admin. Code § 334.2 (59), (81), (91) (Definitions).

                Under the Water Code, the “owner” of an underground storage tank means:




       1
           All cites to 30 Tex. Admin. Code are to rules promulgated by TCEQ.

                                                 2
       [a] person who holds legal possession or ownership of an interest in an underground
       storage tank system. . . . If the actual ownership of an underground storage tank
       system . . . is uncertain, unknown, or in dispute, the fee simple owner of the surface
       estate of the tract on which the tank system is located is considered the owner of the
       system unless that person can demonstrate by appropriate documentation, including
       a deed reservation, invoice, or bill of sale, or by other legally acceptable means that
       the underground storage tank system . . . is owned by another person. . . .


Tex. Water Code § 26.342(9). In short, when there is any doubt about ownership, the fee simple

owner of the surface estate on which the tank is located is the presumed owner of the tank unless the

property owner demonstrates by documentation or other “legally acceptable means” that someone

else owns the tank. See id.

               Generally, an underground storage tank must be registered with TCEQ. See id.

§ 26.346(a); 30 Tex. Admin. Code § 334.7 (Registration for Underground Storage Tanks (USTs) and

UST Systems). While registration does not conclusively establish legal ownership, TCEQ may rely

on the registration form for determining ownership until new documentation shows otherwise. The

Water Code provides that:


       [a] person that has registered as an owner of an underground storage tank system . . .
       with the commission under Section 26.346 after September 1, 1987, shall be
       considered the tank system owner until such time as documentation demonstrates to
       the executive director’s satisfaction that the legal interest in the tank system was
       transferred to a different person subsequent to the date of the tank registration.


Tex. Water Code § 26.342(9). Thus TCEQ’s executive director has discretion as to when to rely on

registration for determination of ownership. See id. TCEQ is required to “adopt requirements for

the closure of tanks, including the removal, disposal, or removal and disposal of tanks to prevent

future releases of regulated substances into the environment.” See id. § 26.350. An owner who

                                                 3
intends to permanently remove a tank from service must notify TCEQ and take certain steps to

ensure that the tank will not pose a continuing threat to the environment. See 30 Tex. Admin Code

§ 334.55 (Permanent Removal from Service).

               TCEQ may initiate a proceeding and assess an administrative penalty against a person

who violates a statute, rule, order, or permit under TCEQ’s jurisdiction. See Tex. Water Code

§§ 7.002 (giving TCEQ enforcement authority), .051 (providing that TCEQ may assess

administrative penalty against person who violates statute, rule, order or permit), .052 (setting

maximum administrative penalty of $10,000 per day for each violation). An administrative penalty

may be recovered in a civil action brought by the attorney general. See id. § 7.072. In addition, “[a]

person who causes, suffers, allows, or permits a violation of a statute, rule, order, or permit” under

the jurisdiction of TCEQ “shall be assessed for each violation a civil penalty not less than $50 nor

greater than $25,000 for each day of each violation . . . .” Id. § 7.102; see also id. § 7.101. Upon

the request of the executive director of TCEQ, the attorney general shall institute a civil suit in the

name of the State of Texas for injunctive relief and/or civil penalties. See id. § 7.105. If the State

prevails, it may recover attorney’s fees and costs. See id. § 7.108.


                      FACTUAL AND PROCEDURAL BACKGROUND

               The property at issue is the site of a former automobile service and gas station

previously owned by Parker Tire & Service Inc. (Parker Tire) and located in Port Arthur, Jefferson

County, Texas (the Property). In 1988, Parker Tire registered three underground storage tanks

located on the Property with TCEQ. In 1989, Parker Tire sold the Property by loan to Hien Duong.

In late 1992, after receiving an invoice for underground storage tank fees, Parker Tire submitted a

                                                  4
form to TCEQ requesting that the registration be changed to reflect that Duong was the owner, but

the change was not made until Duong notified TCEQ of the change in ownership in early 1993.

According to the State, three days after submitting his notification form, Duong defaulted on his loan

and Parker Tire foreclosed on the loan and reacquired the Property. In December 1993, Parker

signed a warranty deed transferring the Property and “all of the improvements” “AS IS, WHERE IS,

WITH ALL ITS FAULTS” to Pryor, and the deed was recorded in the Jefferson County property

records. Pryor did not update the registration or take any action to permanently remove the tanks.

It appears from the record that at some point the building that had housed the service station was

destroyed by fire and subsequently demolished by the City of Port Arthur.

               In 2007, TCEQ conducted an on-site inspection of the Property and determined that

the three underground storage tanks had been improperly abandoned. According to the TCEQ

inspector, at that time, fuel product remained in at least one of the tanks. TCEQ registration records

included Parker Tire and Duong as one-time owners, but upon inquiry into Jefferson County property

records, TCEQ discovered the deed transferring the Property to Pryor. TCEQ sent notice of

violations to Pryor at his last known address, as stated on the deed, and to other suspected

addresses. TCEQ’s summary judgment evidence of this correspondence included a letter dated

September 4, 2009, sent to a Louisiana address by certified mail, and the signed return receipt or

green card. When Pryor did not respond, TCEQ initiated an administrative enforcement action

against Pryor and obtained a default order—in which TCEQ found that Pryor had received notice

of the action in 2010 by certified mail, return receipt requested, and failed to timely respond—and

assessed administrative penalties against him. See id. §§ 7.051, .052, .057 (providing that if person



                                                  5
charged with violation does not timely respond to notice, TCEQ may by order assess penalty),

26.3475(e) (providing that if owner does not correct violation after notice, TCEQ may order tank out

of service). In 2011, TCEQ conducted a compliance file review and determined that it had received

no documentation demonstrating compliance with the default order, that the tank registration had

not been updated, and that the administrative penalty had not been paid.

               In January 2016, TCEQ conducted another on-site inspection of the Property and,

according to the inspector, found that the abandoned storage tanks remained on the site, that the

previously observed fuel product was no longer present, that groundwater and/or surface water had

infiltrated the tanks, and that there were “hydrocarbon sheens on the surface of pooled water located

on the cracked concrete slabs covering” two of the tanks. Soon thereafter, the State filed the

underlying enforcement action against Pryor in Travis County district court seeking civil penalties,

an injunction requiring Pryor to properly remove the tanks from service, attorney’s fees, and costs.

See id. §§ 7.101, .102, .105, .108. The State filed a traditional motion for summary judgment, and

Pryor filed a traditional and no-evidence motion for summary judgment. After a hearing, the trial

court denied Pryor’s motion, granted the State’s motion, and ordered judgment in favor of the State,

awarding civil penalties, attorney’s fees, and costs against Pryor and entering a permanent injunction

ordering Pryor to take the statutorily required steps to permanently remove the underground storage

tanks. See 30 Tex. Admin. Code §§ 334.55, .72–.82 (addressing release reporting and corrective

action), .85 (Management of Waste). This appeal followed.




                                                  6
                                   STANDARD OF REVIEW

               We review summary judgments de novo. Southwestern Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 583 (Tex. 2015). We take as true all evidence favorable to the non-moving party,

and we indulge every reasonable inference and resolve any doubts in the non-moving party’s favor.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A movant for traditional

summary judgment must establish that there is no genuine issue of material fact and that he is

entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). When the movant satisfies this

initial summary judgment burden, the burden shifts to the nonmovant to produce evidence raising

an issue of material fact. See Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health

Care, LLC, 437 S.W.3d 507, 517 (Tex. 2014). A genuine issue of material fact exists if the

nonmovant produces evidence that “rises to a level that would enable reasonable and fair-minded

jurors to differ in their conclusions.” Parker, 514 S.W.3d at 220 (internal quotations and citation

omitted). The evidence does not create an issue of material fact if it is “‘so weak as to do no more

than create a mere surmise or suspicion’ that the fact exists.” Id. (quoting Kia Motors Corp. v. Ruiz,

432 S.W.3d 865, 875 (Tex. 2014). Such evidence is “no more than a scintilla and, in legal effect,

is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

               Our analysis also requires statutory construction, which is a question of law that we

review de novo. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017). Our

primary concern is the express statutory language.        See Galbraith Eng’g Consultants, Inc.

v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). “If that language is unambiguous, we interpret the



                                                  7
statute according to its plain meaning.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)

(per curiam).


                                            DISCUSSION

                In a single issue, Pryor argues that the trial court erred in granting the State’s motion

for summary judgment because the summary judgment evidence does not establish that legal title

to the tanks was conveyed to him and he raised a genuine issue of material fact concerning

ownership of the tanks.2 In its motion for summary judgment, the State argued that (1) the deed

established that Pryor owned the Property, which was prima facie evidence that he owned the tanks,

see Tex. Water Code § 26.342(9); (2) Pryor had not provided any documentation or shown by any

other “legally acceptable means” that the tanks were owned by someone else, see id.; (3) Pryor had

not complied with tank registration or removal requirements, see id. §§ 26.346, .350; 30 Tex. Admin.

Code §§ 334.7, .55; (4) Pryor had “caused, suffered, allowed, or permitted” violations of state law,

see Tex. Water Code § 7.101, and was liable for civil penalties, see id. §§ 7.102, .105; (5) the State

was entitled to injunctive relief, see id. § 7.105; and (6) Pryor was liable for fees and costs, see id.

§ 7.108; Tex. Gov’t Code § 402.006 (providing for recovery of attorney’s fees by attorney general

in cases in which state is entitled to recover penalty). On appeal, Pryor does not dispute that he did

not register or remove the tanks or that the tanks remain abandoned at the Property; rather, he

challenges all of the State’s contentions by arguing that the State failed to meet its burden to


       2
          On appeal, Pryor does not argue that he was entitled to summary judgment on his motion
as a matter of law or that the trial court erred in denying his motion. His arguments are confined to
urging that the State did not meet its summary judgment burden, and he seeks remand of
this proceeding.

                                                   8
establish Pryor’s ownership of the tanks and to establish that Pryor did not demonstrate by any

“legally acceptable means” that the tanks are owned by someone else. See Tex. Water Code

§ 26.342(9) (defining “owner” of tank as person who holds legal possession or ownership interest

and providing that when ownership is in dispute, fee simple owner of surface estate is considered

owner of tank unless presumed owner demonstrates by documentation or “other legally acceptable

means” that someone else owns tank). Because, as discussed below, we conclude that the State

established Pryor’s ownership of the tanks through a presumptively valid deed, the burden shifted

to Pryor to create an issue of material fact. See Amedisys, 437 S.W.3d at 517. In short, this appeal

turns on whether Pryor’s summary judgment evidence created a genuine issue of material fact as to

ownership of the tanks.


Summary Judgment Evidence

                 The evidence attached to the State’s motion included the warranty deed dated

December 6, 1993, indicating that Parker Tire conveyed the Property and “all of the improvements”

“AS IS, WHERE IS, WITH ALL ITS FAULTS” to Pryor, and a Notice to Purchasers, describing the

same property, signed by Parker on the same date as the deed, and bearing a signature that read

“Matthew A. Pryor” and the date of December 14, 1993.3 The State’s summary judgment evidence

also included Pryor’s testimony from a prior hearing in the trial court, in which, when asked if

the signature on the Notice to Purchasers was his, he replied, “I’m not quite sure. It looks like

my signature.”


       3
        The Notice to Purchasers informed any buyer that the Property is located in the Jefferson
County Drainage District No. 7 and is subject to the district’s taxing authority.

                                                 9
                Pryor’s summary judgment evidence included his affidavit and the deposition

testimony of Parker; Isaiah Pryor, Pryor’s brother; James Black, Parker’s attorney; and

Esker Sawyer, TCEQ’s site inspector. In his affidavit, Pryor averred that (1) he did not know Parker

and did not sign any contract or pay any money for the Property or pay any property taxes on the

Property; (2) he had produced as evidence Parker’s deposition testimony in which Parker

“confirm[ed]” that Chevron USA (formerly Gulf Oil Company) owned the tanks; (3) he was “not

sure” if the signature on the Notice to Purchasers was his, but “if it [was his] signature,” he did not

agree to purchase the property or tanks by signing the Notice to Purchasers; (4) he did not authorize

anyone “to include [his] name as the grantee or buyer” of the Property or authorize Parker or Black

to file the warranty deed, and (5) the deed was fraudulently filed.

                Parker testified that Eva Pryor4 approached him about renting the Property, that he

offered to sell it to her, that she agreed and paid $2,500 for it, that she asked him to put the deed in

Pryor’s name, and that he never met Pryor. He later stated that Eva and a man came to the closing,

that the man introduced himself as “Pryor,” that he assumed it was Matthew Pryor, and that Eva said,

“That’s the man.” Concerning ownership of the tanks, Parker testified that he did not know if he

owned them, but if he owned them, then he sold them to Eva, explaining that he sold “everything

that was there” and did not think about the tanks as a separate purchase. Parker also testified that

Gulf Oil owned the tanks but then stated that was just his “belief” and that he had no documents to

support that Gulf Oil or anyone else owned the tanks. In explaining why he believed that Gulf Oil




       4
           The summary judgment record reflects that Eva Pryor is Isaiah Pryor’s wife and Pryor’s
sister-in-law.

                                                  10
owned the tanks, Parker stated that in 1983 and 1984, Gulf Oil had control of the tanks and that he

could only use them if he used Gulf Oil. He added:


       That’s the way I remember it. Maybe it’s the way I want to remember it. I don’t
       know, but that’s—in my mind that was it. That Gulf Oil had put those tanks in there
       when they put the station in there. They were transferring them to Darby and that
       Darby being a Gulf distributor, those tanks were under his control. And the only way
       I could use those tanks was if we buy Gulf Oil and Gulf gasoline.


Parker also testified that he registered the tanks with TCEQ, and when asked why he registered the

tanks if Gulf Oil owned them, he answered that he “registered them so the state would be happy with

[him] and not come after [him] for not registering the tanks that [were] in the ground.”

               Isaiah Pryor testified that Joe Nathan Lee introduced him to Parker and negotiated

the purchase of the Property for him.5 He explained that he did not remember the details well

because he suffered from depression, “was sick there, very depressed and going through depression,

taking medication, everything else,” and “medically, physically, spirit—[his] mind wasn’t on how

things [were] set up there.” He stated that he was interested in buying the building, not the land, and

that he did not remember if he paid money or Lee paid it for him, how much money was paid, if he

signed any documents, or if lawyers prepared any paperwork. Isaiah Pryor also testified that he did

not remember Pryor being a participant in the transaction or paying any money. He stated that he

did not remember what he intended to do with the building but he also stated that he thought he told

Lee he wanted to purchase it “for [his] family, [his] brothers, all [his] brothers.” He testified that




       5
          The summary judgment record does not contain any additional information about
Joe Nathan Lee.

                                                  11
he did not remember paying taxes on the Property, but if taxes were paid, he paid them. He later

stated that he did not pay taxes on the Property.

                Isaiah Pryor also testified that he had never seen the warranty deed to Pryor until the

lawsuit was filed against Pryor, that he had no idea why Pryor’s name was on the deed, and that the

address listed on the deed is his address, where he has lived for close to 30 years. He stated that to

his knowledge, Pryor does not own the Property and never used the tanks. As to ownership by

someone other than Pryor, Isaiah Pryor first testified that Duong was the last person who owned the

Property and that he owns the tanks. He then stated that Jefferson County has repossessed the

Property and that Duong no longer owns the Property. And later he testified that either the City of

Port Arthur or Parker owns the Property. He denied that TCEQ had ever contacted him, Pryor, or

any other family member about the tanks and denied knowing that TCEQ had issued a default

administrative order against Pryor. He also testified that he had no documents to show that Parker

or the City of Port Arthur owns the Property and no documents to show that Pryor does not own

the Property.

                Black testified that he represented Parker Tire and that the warranty deed was

prepared in his office. He stated that did not know and had not met Pryor; that he assumed that

Parker told him Pryor was the buyer and gave him Pryor’s address, which he did not confirm; that

he believed the transaction was a cash sale and was not aware of any contract; and that he had no

documents regarding the sale. He testified that he did not attend a closing, did not know if one

occurred, and did not record the deed. In short, Black testified that he did not have any documents

to show that Pryor does or does not own the Property and that he “just prepared a deed that [he] was



                                                    12
asked to prepare and sent it to the title company to close.” He also stated his opinion that if the tanks

were in the ground at the time of the transaction, then they conveyed because they were affixed.

                Finally, Sawyer testified that he began work on the case in January 2016. He stated

that the TCEQ file contained a deed indicating that Pryor was the grantee, which led him to believe

that Pryor owns the Property. He also stated that his role was to investigate whether there were three

underground storage tanks on the Property, not to investigate ownership, and that he did not verify

the accuracy of the deed, but he did verify that Pryor was listed as the owner in the Jefferson County

Appraisal District tax records. Sawyer also testified that the only two registered owners of the tanks

in the TCEQ records were Parker Tire and Duong. He also testified that Parker had registered the

tanks and notified TCEQ that they were permanently out of service for selling fuel.


Pryor’s Arguments

                Pryor first argues that the State’s reliance on the deed as proof that Pryor owns the

Property fails because he has asserted that the deed was fraudulently filed. The deed was

acknowledged before a notary public and recorded in the Jefferson County Clerk’s office. See Tex.

Prop. Code § 12.001 (providing for recording of acknowledged instruments concerning property).

Pryor does not argue that the deed is void and concedes that generally, after delivery and acceptance,

deeds are regarded as “the final expression of the parties’ agreement and the sole repository

of the terms on which they have agreed.” See Cochran Invs., Inc. v. Chicago Title Ins. Co.,

No. 14-16-00119-CV, 2018 Tex. App. LEXIS 1001, at *11 (Tex. App.—Houston [14th Dist.]

Feb. 6, 2018, no pet. h.). Rather, he contends that there is an exception that applies here—i.e., that

a party may overcome the presumption that the deed establishes the requisite intent to convey the

                                                   13
property and the binding effect of the terms of the deed by showing that fraud accompanied the

delivery or recording. See Hughes v. Hughes, No. 05–01-01102-CV, 2002 Tex. App. LEXIS 6713,

at *19 (Tex. App.—Dallas Sept. 17, 2002, pet. denied); Munawar v. Cradle Co., 2 S.W.3d 12,

17 (Tex. App.—Corpus Christi 1999, pet. denied) (“One exception to the binding effect of the

terms of the deed is when fraud has been committed.”). On this record, we do not find this

argument persuasive.

                Even if the deed was obtained by fraud, it is voidable, not void, and remains effective

until set aside. See Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007). Pryor has

not brought an action against Parker Tire for fraud or otherwise sought to void the deed. Instead, he

now asserts as a defense that it was fraudulently filed. However, when a deed is merely voidable,

rather than void, “equity will not intervene as the claimant has an adequate legal remedy.” Id. at 618.

“Texas law is well settled that once limitations has expired for setting aside a deed for fraud, that bar

cannot be evaded by simply asserting the claim in equity.” Id. Even assuming Pryor did not have

notice until the State filed this suit, the deed remains effective until set aside; Pryor has a legal

remedy to challenge the deed and cannot merely claim a fraudulent deed in this proceeding. See id.

Thus, the unambiguous deed remains valid, and the State met its burden to establish that Pryor is the

fee simple owner of the Property. See Parker, 514 S.W.3d at 220; Ford, 235 S.W.3d at 618;

Cochran Invs., 2018 Tex. App. LEXIS 1001, at *11.

                As the fee simple owner of the surface estate, Pryor is considered the owner of the

tanks where, as here, the ownership of the tanks is uncertain, unknown, or in dispute. See Tex.

Water Code § 26.342(9) (defining “owner” of underground storage tank as person who holds legal



                                                   14
possession of tank and providing that when ownership is uncertain, unknown, or in dispute, fee

simple owner of surface estate is considered owner of tank). This presumption applies unless the

presumed owner “can demonstrate by appropriate documentation, including a deed reservation,

invoice, or bill of sale, or by other legally acceptable means that the tank is owned by another

person.” See id. Pryor argues that the State has not met its summary judgment burden to prove that

he has not demonstrated by any legally acceptable means that someone else is the owner of the tanks

because his affidavit and the deposition testimony of Parker, Isaiah Pryor, Black, and Sawyer raise

a genuine issue of material fact regarding ownership. On this record, we cannot agree.

                Initially, we observe that much of Pryor’s affidavit— his statements that he does not

know Parker, did not sign a contract, was not aware of the tanks, did not know who prepared the

deed documents, and never conducted business at the site—are irrelevant to the issue of ownership.

Concerning his reference to Parker’s statement that Gulf owns the property, Pryor merely states that

he has provided Parker’s testimony as evidence and does not purport to possess personal knowledge

that Gulf is the owner. See Tex. R. Evid. 602 (“A witness may testify to a matter only if evidence

is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”);

Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010) (stating that affidavits must

be based on personal knowledge and that affidavit not based on personal knowledge is legally

insufficient). Other statements for which he lacked personal knowledge were excluded from

evidence when the trial court sustained the State’s objections on that basis.6 See Marks, 319 S.W.3d

at 666. And his statements that the deed was “fraudulently filed” and that he has not caused any


       6
           Pryor does not challenge these evidentiary rulings on appeal.

                                                  15
“violations” are legal conclusions that he is not qualified to make and that do not raise a material fact

issue. See Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) (concluding that party’s

affidavit statement that indebtedness under note was “renewed and extended” by agreement was

legal conclusion and stating that legal conclusion in affidavit is insufficient to raise issue of

fact in response to motion for summary judgment); Anderson v. Snoddy, No. 06-14-00096-CV,

2015 Tex. App. LEXIS 10047, at *29 (Tex. App.—Texarkana Sept. 25, 2015, pet. denied) (mem.

op.) (“A lay witness is not allowed to make legal conclusions or interpret the law.”). Pryor relies

heavily on the statements in his affidavit that he never agreed to purchase the property and that he

never authorized anyone to put his name on the deed or to file the deed. However, Pryor offered

these defensive assertions without stating any bases or explanation as to why his name appeared on

the presumptively valid deed or why what appeared to be his signature appeared on the Notice to

Purchasers. See Ford, 235 S.W.3d at 618; Ridgway, 135 S.W.3d at 601.

                As for the deposition testimony, Parker testified only that he “believed” Gulf owns

the property but also stated that he registered the tanks with TCEQ in his own company’s name.

Isaiah Pryor stated at various times that Duong, Parker, Jefferson County, and the City of Port Arthur

own the property. The testimony of these witnesses was inconsistent, confused, and conflicting, and

neither witness had any documentation to support his testimony on ownership. Attorney Black

testified that he simply prepared a deed that he was asked to prepare and had no other knowledge of

the transaction. And TCEQ investigator Sawyer testified that his role was to investigate whether

there were three underground storage tanks on the Property, not to investigate ownership, but that

he was aware of the deed and had verified that Pryor was listed as the owner in the tax records.



                                                   16
Thus, neither attorney Black nor TCEQ investigator Sawyer offered any testimony related to the

issue of ownership beyond their recognition of public records naming Pryor as grantee and owner.

                Evidence raises a genuine issue of material fact only if it “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions” and “does not create an issue

of material fact if it is so weak as to do no more than create a mere surmise or suspicion” that the fact

exists. Parker, 514 S.W.3d at 220 (internal quotations omitted); see also Ruiz, 432 S.W.3d at 875.

Here, in light of the unchallenged deed that remains effective until set aside—as well as the signed

Notice to Purchasers; Pryor’s delay in alleging fraud and failure to date to file a fraud claim against

Parker, Parker Tire, Isaiah, and/or Eva; the involvement of Pryor’s family members; the confused

and conflicting testimony of Parker and Isaiah Pryor; the lack of relevance to ownership of the

testimony of Black and Sawyer; and the lack of any testimony at all from Eva, who Parker testified

instructed him to put Pryor’s name on the deed—the affidavit of Pryor and the deposition testimony

of Parker, Isaiah Pryor, Black and Sawyer “are so weak as to do no more than create a mere surmise

or suspicion” that Pryor is not the owner and would not “enable reasonable and fair-minded people

to differ in their conclusion” that Pryor is the owner, as reflected on the deed and thus do not create

a fact issue. See Parker, 514 S.W.3d at 220; Ford, 235 S.W.3d at 618. Applying the plain language

of section 26.342, we conclude that on this summary judgment record, Pryor has not demonstrated

by documentation or “other legally acceptable means” that someone other than Pryor owns the

storage tanks so as to create a genuine issue of material fact. See Tex. Water Code § 26.342(9);

Lippincott, 462 S.W.3d at 509.




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                Finally, Pryor focuses on Parker’s testimony that Parker registered the tanks with the

TCEQ in the name of Parker Tire and the testimony of Sawyer that Parker and Duong were the only

registered owners on file with the TCEQ. Pryor contends that this evidence shows that Parker Tire

and Service is the registered owner of the storage tanks, apparently relying on section 26.342 of the

Water Code, which provides that a registered owner shall be considered the owner of the tanks. See

Tex. Water Code § 26.342(9). However, this statutory presumption that the registered owner is the

owner for purposes of section 26.342 is qualified: The presumption applies “until such time as

documentation demonstrates to the executive director’s satisfaction that the legal interest in the tank

system was transferred to a different person subsequent to the date of the tank registration.” See id.

Thus, the executive director of TCEQ has discretion to evaluate additional documentation and

determine that someone other than the last registered owner is the “owner” under section 26.342.

See id.

                Parker registered the tanks in the name of Parker Tire and Service in 1988. In 1989,

Parker sold the Property to Duong. In April 1993, Duong registered the tanks in his name.

According to the State, three days after he registered the tanks in his name, Duong defaulted on the

loan and Parker Tire foreclosed on the loan and reacquired the Property. In December 1993, Parker

Tire sold the Property to Pryor, and the deed was filed in the Jefferson County property tax records.

In addition, the Jefferson County tax records reflect that Matthew Pryor is the certified owner and

that property taxes have been paid in his name. On this record, applying the plain language of

section 26.342, we conclude that the executive director of TCEQ could have reasonably exercised

his discretion to determine that the deed and the tax records satisfactorily demonstrated that the tanks



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registered in the name of Parker Tire or Duong had been transferred to Pryor since the registration.

See id.; Lippincott, 462 S.W.3d at 509.

               Because the State met its summary judgment burden to establish ownership through

the presumptively valid deed, the burden shifted to Pryor to create a material fact issue as to

ownership. See Parker, 514 S.W.3d at 220; Amedisys, 437 S.W.3d at 517. On this record,

considering all of the evidence in the light most favorable to Pryor, we conclude that the summary

judgment evidence was insufficient to demonstrate by documentation or “other legally acceptable

means” that someone other than Pryor owns the storage tanks so as to raise a genuine issue of

material fact concerning Pryor’s ownership of the underground storage tanks and preclude the

granting of the State’s motion for summary judgment. See Tex. Water Code § 26.342; Parker,

514 S.W.3d at 220; Ford, 235 S.W.3d at 618; Dorsett, 164 S.W.3d at 661; Ridgway, 135 S.W.3d

at 601 (stating that evidence that does no more than create surmise or suspicion of fact is no

evidence); Taylor v. Langham, No 09-14-00193-CV, 2015 Tex. App. LEXIS 3233, at *26 (Tex.

App.—Beaumont Apr. 2, 2015, no pet.) (mem. op.) (holding that affidavits filed by plaintiff were

so weak as to do no more than create surmise or suspicion of matter to be proved and therefore

constituted no evidence in support of adverse possession claim). We therefore further conclude that

the trial court did not err in granting the State’s motion for summary judgment. Accordingly, we

overrule Pryor’s issue.


                                          CONCLUSION

               Having overruled Pryor’s sole issue, we affirm the trial court’s judgment.




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                                           __________________________________________
                                           Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: June 12, 2018




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