The Texas Supreme Court has granted a popular chain retail store’s petition for review in a case raising the issue of whether the two-year statute of limitations on nuisance claims applies to Plaintiff’s request for a permanent injunction to abate the alleged nuisance.
Family Dollar Stores of Texas, LLC, ARCP FDCCC1403, 7B Building & Development, LLC, Triple C Development, Inc., Burkhardt Engineering Company, and M&S Utility Construction, LLC v. JLMH Investments, LLC (No. 02-23-00233-CV; No. 24-0543; granted June 13, 2025) arose from from the construction of a Family Dollar store next to property owned by JLMH. In 2016, as the construction neared completion, JLMH noticed flooding on the property after each rain event, which apparently eroded the pavement of a parking lot on the property. Flooding did not occur prior to the construction. JLMH sought relief from the City of Fort Worth for the next two years but to no avail. In 2019 JLMH hired a plumber to check the property for leaks, but he didn’t find any. Instead, an adjacent business reported that JMLH’s building was “sitting the middle of a lake.” JLMH subsequently hired an engineer to inspect the building’s foundation. The engineer reported “distress” to the foundation. With no end in sight, JLMH filed suit in 2020, alleging nuisance, trespass, negligent and intentional diversion of water, and Water Code violations. Defendants twice moved for summary judgment based on limitations. JLMH amended its pleading to seek permanent injunctive relief, in addition to damages. The trial court granted Defendants’ summary judgement motion and dismissed all claims. JLMH appealed.
In an opinion by Justice Walker, the court of appeals affirmed in part and reversed in part. First, JLMH argued that the trial court erred in granting summary judgment as to its request for an injunction because Defendants didn’t properly address it in their motions. The court disagreed, observing that, while ordinarily a movant is required to amend its MSJ to address claims added in a subsequent petition, it wasn’t necessary here because JLMH’s motions, which asserted that all of JLMH’s claims were barred by limitations, were broad enough to encompass a claim for injunctive relief. Additionally, JLMH’s amended petition did not raise any new factual allegations that changed the nature of the suit. The “trial court did not err in not denying Defendants’ motions for summary judgment on the the theory that they had failed to specifically address the injunctions request” (citations omitted).
JLMH next argued that the trial court erroneously granted Defendants’ MSJ on its claims because the accrual date of those claims at the earliest in 2019, when the plumber checked for leaks, and because of the continuing-tort doctrine. Each of JLMH’s claims had a two-year statute of limitations. Taking the nuisance claim first, the court observed that the accrual date depends on whether the nuisance is permanent or temporary. For a permanent nuisance, the claim accrues “when the injury occurs or is first discovered,” where a claim for temporary nuisance “accrues anew upon each injury” (citation omitted). If a construction project is involved, as it was here, “a claim does not generally accrue while the potential source is under construction.” Additionally, “when the structure or source allegedly causing the nuisance is permanent, a presumption is raised that the nuisance is also permanent” (citation omitted). JLMH contended that the sporadic occurrence of rain made the nuisance temporary, but the court ruled that the undisputed evidence that the flooding occurred “every time it rained.” In that situation, “Texas courts have routinely held that ordinary and even heavy rainfall that causes flooding constitutes a permanent nuisance because such rain events are sufficiently constant and regular” (citations omitted). Since the Family Dollar store also wasn’t going anywhere, there was also a presumption that the nuisance was permanent. Accordingly, the accrual date occurred sometime in 2016 or 2017, when the flooding first occurred and was discovered. JLMH thus had notice of an injury at that time. Its 2020 lawsuit fell outside the limitations period.
The same went for the trespass, Water Code, and negligence claims. JLMH had notice of the flooding in 2016 or 2017, starting the clock for each claim. As to JLMH’s assertion that the continuing-tort doctrine, which creates an exception to limitations “for torts that are ongoing and continuous, creating a separate cause of action on each occasion” (citation omitted), the court noted that the doctrine doesn’t apply to claims involving permanent injury to land. Since the court already decided that the nuisance was permanent, it concluded that the JLMH’s claims involved permanent injury to land.
What about JMLH’s argument that limitations is not an available defense to suits to abate a nuisance? This one was the winner. “Since at least 1895,” the court observed, “Texas courts have consistently and uniformly adhered to the rule that limitations is not a defense to an injunction requesting abatement of a nuisance” (citations omitted). The trial court thus erred by granting Defendants’ MSJ on that issue. Defendants unsuccessfully asserted that the rule is not as clear as that. The court rejected this attempt, as well as Defendants’ argument that JLMH’s request for injunction should be dismissed because it “is not an independent cause of action but, rather, a form of relief dependent on a viable cause of action.” Not so fast, the court responded, because “for more than a century and a half, Texas courts have recognized a plaintiff’s standalone right to have a nuisance abated” (citations omitted). This rule stands alongside “the well-established rule that a person has no recognized right to maintain a nuisance by prescription” (citation omitted). To allow limitations to bar such a claim “would effectively re-write this well-worn precedent and allow that person to obtain the legal right to maintain their nuisance in perpetuity.” Consequently, the court sent the case back to the trial court.
SCOTX has not yet scheduled oral argument.
