Appeal from County Court at Law No. 5 of El Paso County, Texas
The appellant, acting in his capacity as trustee of the Trust, filed the instant lawsuit against the appellee companies, alleging temporary injury to Trust commercial property in El Paso, and seeking damages and injunctive relief. The appellant premised his lawsuit on four distinct legal theories: negligence, trespass, nuisance, and violation of Texas Water Code section 11.086(a). The appellees filed traditional motions for summary judgment, arguing that the appellant's claims were barred by the two-year statute of limitations. The appellant responses to the motions for summary judgment, arguing the njuries were temporary in character as opposed to permanent" and under Texas law, damages might be recovered for such injuries sustained within the two years prior to filing suit. The trial court, without explaining its reasoning, granted the appellees motions for summary judgment and ordered the appellant's claims be dismissed. The appellate court found that pursuant to Texas Supreme Court in Schneider Nat. Carriers, Inc. v. Bates (2004), 147 S.W.3d 264, that Schneider did not involve storm waters or a 100-year desert flooding event. Also, the testimony of the Trust's designated representative was that before 2006, there was some buildup of silt and sand. Further, based on the court's findings in the Great Flood of 2006, the court held that a nuisance should be deemed temporary only if it was so irregular or intermittent over the period leading up to filing and trial that future injury could not be estimated with reasonable certainty. Conversely, a nuisance should be deemed permanent if it was sufficiently constant or regular (no matter how long between occurrences) that future impact could be reasonably evaluated. Jurors should be asked to settle the question only to the extent there was a dispute regarding what interference has occurred or whether it was likely to continue. Therefore, the court reversed and remanded for further proceedings.