                                   NO. 07-06-0146-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   APRIL 30, 2008
                          ______________________________

                  WAYNE POPE AND LAURA POPE, APPELLANTS

                                            V.

                JOHN KIELLA HOMES, JOHN KIELLA, INDIVIDUALLY,
                   KAM HOME BUILDERS, KIELLA FAMILY, LTD.,
                    KIELLA MANAGEMENT, L.C., APPELLEES
                     _________________________________

              FROM THE 146TH DISTRICT COURT OF BELL COUNTY;

                 NO. 203,426-B; HONORABLE RICK MORRIS, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellants Wayne and Laura Pope appeal from a summary judgment in favor of

appellees John Kiella Homes, John Kiella, Individually, Kam Home Builders, Kam Family,

Ltd., Kiella Management, L.C., (hereinafter “Kiella”). Finding no error, we affirm.
                                       Background


       The Popes brought suit against Kiella and the City of Temple after their home was

flooded following heavy rains.    Kiella was the developer of Briarcrest, a residential

subdivision situated uphill from the Popes’ neighborhood. Wayne Pope and others had

opposed Briarcrest’s construction when Kiella proposed the subdivision in 1996,

expressing, among other concerns, potential problems with drainage. The City denied

Kiella a permit for the subdivision that year.     Kiella made changes to address the

expressed concerns and, despite continued objections from the Popes and others, the City

approved its development in 1997.


       The Popes’ home first was flooded in late August or early September 2001 after a

heavy rain. It was flooded again in October 2003, again after heavy rainfall. The Popes

contend the construction of Briarcrest diverted runoff from rainfall, increasing the volume

of water in the adjacent street and ultimately causing the flooding of their home.


       The Popes filed suit on April 12, 2004.1 The court dismissed their claims against the

City, an action not challenged on appeal. The Popes’ amended pleadings asserted claims

against Kiella based on Texas Water Code § 11.086,2 nuisance, trespass and gross

negligence.




       1
        Some defendants were not added until later, but those dates are not material to
our disposition of the appeal.
       2
           Tex. Water Code Ann. § 11.086 (Vernon 2000).

                                             2
       By an amended answer, Kiella raised the affirmative defense of limitations as a bar

to the Popes’ claims. Kiella filed motions for summary judgment under sections 166a(c)

and 166a(i) of the Rules of Civil Procedure, attacking the Popes’ claims on numerous

grounds. By traditional motion, Kiella asserted all the Popes’ claims against Kiella were

barred by limitations. The court granted Kiella’s motions without specifying the grounds on

which it granted them, and signed a take-nothing judgment. This appeal followed.


                                         Analysis


       On appeal, via four issues, the Popes contend the trial court erred by granting

summary judgment against them on their Texas Water Code, trespass and nuisance claims,

and erred by granting summary judgment against them on all their claims based on Kiella’s

statute of limitations defense.


Standard of Review


       Our review of a summary judgment is de novo to determine whether a party’s right

to prevail is established as a matter of law. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900

S.W.2d 339, 341 (Tex. 1995). We take as true all evidence favorable to the non-movant,

and indulge every reasonable inference and resolve any doubt in the non-movant’s favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). For a

movant to prevail on a traditional motion for summary judgment, he must conclusively

establish the absence of any genuine question of material fact and that he is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). Where the movant is a defendant,

he must negate at least one essential element of the plaintiff's cause of action. Likewise,

                                            3
a defendant who conclusively establishes each element of an affirmative defense is entitled

to summary judgment. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.

1995).


         Once the movant has established a right to summary judgment, the non-movant has

the burden to respond to the motion for summary judgment and present any issues which

would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589

S.W.2d 671, 678 (Tex. 1979). Issues not expressly presented to the trial court in writing

shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). All

theories in support of, or in opposition to, a motion for summary judgment must be

presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989).


         A motion for summary judgment must expressly present the grounds on which it is

made and must stand or fall on these grounds alone. Science Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 912 (Tex. 1997). When, as here, a trial court's order granting summary

judgment does not specify the grounds relied upon, the reviewing court must affirm

summary judgment if any of the summary judgment grounds are meritorious. FM Properties

Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); Star-Telegram, Inc. v.

Doe, 915 S.W.2d 471, 473 (Tex. 1995).




                                            4
Affirmative Defense of Limitations


       We begin with the Popes’ fourth issue, in which they assert the trial court erred if it

based summary judgment on the bar of limitations. We disagree, and find the issue

dispositive of the appeal.


       A defendant moving for summary judgment on the affirmative defense of limitations

has the burden to (1) conclusively prove when the cause of action accrued and (2) negate

the discovery rule, if it applies and has been pleaded or otherwise raised.3 Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Graham v. Pirkey, 212 S.W.3d

507, 510-11 (Tex.App.–Austin 2006, no pet.). If a movant establishes that the statute of

limitations bars an action, the non-movant must then adduce summary judgment proof

raising a fact issue in avoidance of limitations. Graham, 212 S.W.3d at 510-11.


       The Popes’ claims against Kiella for nuisance, trespass and violation of Water Code

§ 11.086 all have a limitations period of two years. See Tex. Civ. Prac. & Rem. Code Ann.

§ 16.003 (Vernon 2005) (person must bring suit for, inter alia, “trespass for injury to the

estate or to the property of another” not later than two years after the day the cause of

action accrues); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004)

(“limitations period for a private nuisance claim is two years”); Anders v. Mallard & Mallard,

Inc., 817 S.W.2d 90, 95 (Tex.App.–Houston [14th Dist.] 1991, no writ) (two-year statute of

limitations applies to claims brought under § 11.086 of Texas Water Code).




       3
           No discovery rule issue is involved in this case.

                                                5
       The question is when the Popes’ causes of action accrued. Accrual of limitations is

a question of law. Schneider Nat’l, 147 S.W.3d at 274-75. We begin with the Popes’

nuisance claim. A nuisance has been defined as a condition that substantially interferes

with the use and enjoyment of land by causing unreasonable discomfort or annoyance to

persons of ordinary sensibilities. Id. at 269. The accrual of a nuisance claim depends on

whether the nuisance alleged is "permanent" or "temporary." A permanent nuisance claim

accrues when injury first occurs or is discovered; a temporary nuisance claim accrues anew

upon each injury. Id.


       As our Supreme Court noted in its recent Schneider National opinion, the date of

accrual of a nuisance cause of action for limitations purposes is one of three consequences

that result from the categorization of a nuisance as permanent or temporary.4 Schneider

Nat’l, 147 S.W.3d at 275. Discussing categorization in the context of accrual of the nuisance

cause of action, the court there began with the general rule that a cause of action accrues

and limitations begins to run when facts exist that authorize a claimant to seek judicial relief.

Id. at 279. Continuing, the court said:


       As nuisance claims arise only upon a substantial interference with property
       use, they normally do not accrue when a potential source is under
       construction; instead, a landowner “has the right to wait and see what the
       result will be when the improvements are subjected to an actual test.” But
       once operations begin and interference occurs, limitations runs against a

       4
         The other two contexts in which the categorization as permanent or temporary
arises are when a court determines whether a particular nuisance must be addressed in
one suit or a series of suits (or, phrased differently, whether res judicata will bar a recovery
of damages for nuisance when there has been an earlier recovery), and when it determines
whether future damages are recoverable in a nuisance suit. Schneider Nat’l, 147 S.W.3d
at 275-76.

                                               6
       nuisance claim just as against any other. Id. (emphasis in original; internal
       citations omitted)


       We find the Supreme Court’s rationale and language directly applicable here. The

factual allegations in the Popes’ petition begin with Kiella’s 1996 application for approval to

build Briarcrest. The petition then asserts: “Plaintiffs and others in their neighborhood were

concerned that the prospect of a new subdivision would affect the amount of runoff water

that would move directly from the proposed subdivision on to their property. Plaintiffs

formally objected to the project but [Kiella] was permitted to go forward with construction.”


       The “actual test,” Schneider Nat’l, 147 S.W.3d at 279, came in 2001. The flooding,

which was the very interference with their enjoyment of their own property the Popes feared,

occurred. The summary judgment record makes clear the Popes regarded the 2001

flooding as proof their objections to the construction of Briarcrest were well founded.

Responding to an interrogatory, the Popes stated a member of the Temple City Council and

two City engineers came to their home late on the day of the 2001 flooding, after they called

the City.   During that visit, the Popes “reminded them of the formal protest of the

development and that our neighborhood had concerns that when more water was added

to the streets in our area we would have problems.”


       The instant suit involves more than the physical damages to the Popes’ residence

caused by the floodwaters. To another interrogatory asking about their claimed damages,

the Popes responded that damages to be considered by the jury included diminution in the

market value of the house and “future damages if flooding should occur again.”



                                              7
       The Popes point to the court’s statement in Schneider National that the occurrence

of a nuisance “several times in the years leading up to a trial” is likely to give jurors enough

evidence of the nuisance’s frequency and duration to evaluate its impact on property values,

leading to the conclusion the nuisance should be treated as permanent.5 Schneider Nat’l,

147 S.W.3d at 280. They argue the occurrence of flooding only twice, in 2001 and 2003,

from a subdivision completed in 1997, does not meet that standard.


       We disagree. The record demonstrates that the nuisance for which the Popes have

sued is a recurrent one. The source they blame for their injuries, the Briarcrest subdivision,

is permanent.6    Addressing the question whether characterization of a nuisance as

permanent or temporary should focus on the defendant’s operations or the plaintiff’s injury,

the court held that “a permanent nuisance may be established by showing that either the

plaintiff’s injuries or the defendant’s operations are permanent.” Id. at 283. That recurrence

of the injury is dependent on a sufficiently heavy rain does not make the nuisance

temporary. Id. at 283; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57, 61-62 (1931).

Nor are the two flood injuries documented in the summary judgment record “so irregular or

intermittent” that “future injury cannot be estimated with reasonable certainty.” Schneider

Nat’l, 147 S.W.3d at 281. We find the Popes allege a permanent nuisance caused by the



       5
         The Popes also refer to the court’s similar statement that if a nuisance occurs “at
least a few times a year,” jurors should be able to evaluate its impact with reasonable
certainty, again leading to the conclusion the nuisance is permanent. Id. at 280.
       6
         Cf. Plough v. Reynolds, No. 13-03-741-CV, 2006 WL 328120 (Tex.App.–Corpus
Christi, Feb. 9, 2006, no pet.) (mem. op.) (applying Schneider Nat’l, and finding nuisance
temporary when caused by acts of vandalism and other willful and occasional acts whose
future occurrence was uncertain).

                                               8
Briarcrest subdivision, and that facts existed on the occurrence of the 2001 flooding that

authorized them to seek judicial relief against Kiella for the nuisance they assert. The

nuisance cause of action then accrued, and became barred by limitations two years later.

The court did not err by granting summary judgment on the Popes’ nuisance claim.


       The parties agree that the timeliness of filing of the Popes’ trespass claim also

depends on whether they assert permanent or temporary damage to their property. See,

e.g., Waddy v. City of Houston, 834 S.W.2d 97, 102 (Tex.App.–Houston [1st Dist. 1992, writ

denied) (action for trespass by permanent damage to land accrued, for limitations purposes,

on discovery of first actionable injury). See also Tex. Civ. Prac. & Rem. Code Ann. §

16.003 (Vernon 2005).       Our determination that the Popes’ nuisance claim involved

permanent damage to their property, requires the same conclusion with respect to their

trespass claim. We find it also accrued on the occurrence of the 2001 flooding, and was

properly subject to Kiella’s affirmative defense of limitations.


       As noted, courts also have applied a two-year statute of limitations to claims for

damages under § 11.086 of the Texas Water Code. Graham, 212 S.W.3d at 512; Anders,

817 S.W.2d at 95. No contention is made that the claim for damages under that statute

asserted in this case accrued at any later date than the nuisance or trespass claims.

Accordingly, we find the trial court did not err by granting summary judgment as to that claim

as well.


       We overrule the Popes’ fourth issue. Because we find Kiella conclusively established

entitlement to judgment based on the affirmative defense of limitations, we need not


                                              9
address the Popes’ other issues. Tex. R. App. P. 47.1. Accordingly, we affirm the trial

court’s take-nothing judgment.




                                               James T. Campbell
                                                    Justice




                                          10
