by George Christian
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. 24-0543; June 26, 2026) arose 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, holding that the two-year statute of limitations did not apply to an application for an injunction to abate a permanent nuisance. SCOTX granted review.
In an opinion by Justice Busby, SCOTX reversed and restored the trial court’s judgment. As a threshold matter, the Court held that the court of appeals had appellate jurisdiction because the trial court’s order granting Defendants’ summary judgment motion was expressly final and disposed of all claims and all parties. JLMH unsuccessfully argued that a subsequent order granting consent for a permissive appeal and a stay of further proceedings pending appeal modified the finality of the judgment. Turning to the limitations issue, the Court took issue with the court of appeals’ holding that a plaintiff has a standalone right to abate a nuisance or obtain an injunction, that is, independent of a cause of action. “A nuisance is not a cause of action but a type of ‘legal injury,’ to a person right to’ the use and enjoyment of property’ that ‘may result from [a] wrongful act and ‘give rise to a cause of action,’” the Court observed [citing Crosstex]. And in order to obtain an injunction in the first place, a party must show what the wrongful act is. Here Plaintiffs alleged nuisance, trespass, negligent and intentional diversion of water, and Water Code violations, any of which, if proven, would establish liability for property law, tort, or statutory violations. As such, Plaintiffs’ causes of action came within the two-year statute of limitations for suits for trespass “for injury to the estate or to the property of another.” § 16.003(a), CPRC. The statute, the Court continued, covers nuisance claims for injury to the use and enjoyment of land. In other words, there is no “standalone” right to injunctive relief for a private nuisance in the absence of an underlying cause of action. The court of appeals thus erred in holding otherwise.
In something of a rarity, Justice Busby, joined by Justices Lehrmann and Devine, filed a concurring opinion to his own majority opinion. He pointed out that although the majority rejected the broad rule that limitations is not a defense to an injunction to abate a private nuisance, the opinion did not go as far as to rule out what might happen in a public nuisance claim. At least four times in the past the Court has held that in a public nuisance context in which local governments created a nuisance injuring private landowners, it has done so based on the principle that a party creating a nuisance cannot get an easement that way. Justice Busby distinguished those cases and suggested that the10-year statute of limitations for adverse possession may well come into play. Since in this case Plaintiff conceded that the two-year statute applied to its claims, the issue didn’t come up. Nevertheless, the opinion doesn’t change the Court’s ruling that there is no claim for an injunction to abate a nuisance in the absence of a cause of action. And causes of action for injury to property must be brought within two years.
Justice Young, joined by Justices Bland and Huddle, and by Chief Justice Blacklock as to Part II of the opinion, concurred in the judgment and in the Court’s holding as to the limitations issue. Justice Young applauded the Court for eliminating the confusion in the courts of appeals regarding whether and when the two-year statute of limitations for nuisance claims accrues. Regardless of whether the nuisance is temporary or permanent, the Court’s ruling clarifies that there is one accrual date and that there is no such thing as an “ongoing” nuisance that a party could seek to enjoin any time it wanted to. He also pointed out that an adverse possession claim is an entirely different cause of action that may or may not be available later after limitations has expired for a nuisance claim. Additionally, as he observed, a party such as JMLH could easily defeat that claim simply by making open efforts to contest Family Dollar’s encroachment. In any event, Justice Young’s opinion is very instructive on the main point: nuisance is simply not a cause of action, but a type of injury. Without a cause of action to go with it, it won’t fly.
Justice Sullivan, joined by Chief Justice Blacklock and Justice Hawkins, dissented. They would have dismissed the appeal for want of jurisdiction on the basis that the trial court’s second order giving JMLH permission to pursue a permissive interlocutory appeal took back the prior “final” judgment.
