Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of June 19, 2006

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

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Friberg-Cooper Water Supply Corp. v. Elledge, No. 02-0005-203 (June 22, 2006) (Gardner, J., joined by Livingston, J.; Walker, J., dissents with opinion).

Held: Claim for restitution based on unjust enrichment is a suit founded on a debt not evidenced in writing and, therefore, subject to the four-year statute of limitations.

Dissent: The trial court did not err by applying the two-year statute of limitations to Appellant’s claims for unjust enrichment and granting summary judgment for Appellee on limitations grounds. Although the courts of appeals have been divided about whether to apply a two-year or four-year statute of limitations to claims for unjust enrichment, the Texas Supreme Court has resolved this issue by holding that a two-year statute governs these claims. See Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737 (Tex. 2001); HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).

City of Keller v. Wilson, No. 02-0000-183 (June 22, 2006) (Walker, J., joined by Livingston, J.; Cayce, C.J., dissents with opinion) (op. on remand).

Held: The evidence is legally and factually sufficient to support the jury’s finding that Appellant, the City, diverted the natural flow of surface water in a manner that damaged Appellees’s property. Appellees were not statutorily required to prove that the diverted surface water maintained its classification as surface water when it damaged their property, legally and factually sufficient evidence existed that the waters entering the easement satisfied the charge’s definition of surface water, and diversion of surface water into a bed or channel in which that water would not otherwise flow does not strip that surface water of its character as such. Also, because Appellant limited its evidentiary attack to evidence establishing the “natural flow of surface water” element of Appellees’ water code theory of recovery, the issue of the sufficiency of the evidence to support the other elements of this theory of recovery is not properly before us.

Dissent: Issue number seven of the City of Keller’s brief challenges the legal sufficiency of the evidence to support the jury’s finding that the City diverted the natural flow of surface water in a manner that damaged Appellees’ property. Therefore we must review the entire record to determine whether there is legally sufficient evidence to support the finding. When this standard is applied, there is no evidence that a reasonable juror could believe to support the finding that the City diverted the natural flow of surface water and there is contrary evidence that could not be ignored by the jury conclusively establishing that the developers diverted the water that damaged Appellees’ property. Therefore, the evidence is legally insufficient to support the jury’s finding that the City diverted the water in a manner that damaged Appellees’ property. Because this issue was only raised in the City’s motion for new trial, the judgment should be reversed and remanded for a new trial rather than reversed and rendered.

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Updated: 14-Sep-2006