Opinion issued August 11, 2026
In The
Court of Appeals
For The
First District of Texas
But suppose unwelcome waters afflict a long-suffering neighbor for several years. Can there come a point where the statute of limitations expires?
This appeal involves allegations of flooding on a 35-acre tract in Crosby, an unincorporated area in the northeast part of Harris County. The tract’s owner filed a suit in 2018, nonsuited it, and filed a retooled suit in 2021. The new suit alleged fraud but also asked for a permanent injunction as the fix for a nuisance. Defendants filed a summary judgment motion that assailed the elements of the fraud claim and invoked the statute of limitations. The trial court granted the motion.
On appeal, the tract’s owner has left the fraud claim behind but says that the injunction request is good, on the theory that limitations never bars a request to enjoin a nuisance. This argument rests on JLMH Investments, LLC v. Family Dollar Stores of Texas, LLC, 716 S.W.3d 770 (Tex. App.—Fort Worth 2024) (JLMH I), which was extant at the time we heard oral argument but has since been overturned. See Fam. Dollar Stores of Tex., LLC v. JLMH Invs., LLC, — S.W.3d —, No. 24- 0543, 2026 WL 1871092 (Tex. June 26, 2026) (JLMH II). The defendants have various answers to JLMH I, including the argument that nuisance is not a cause of action but a legal injury, as explained in Crosstex North Texas Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016). Having requested and received supplemental briefing regarding the supreme court’s decision in JLMH II, we affirm the summary judgment.
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Background
Pat Black Properties has a 35-acre tract close to Highway 90 in Crosby, Texas.
With this appeal coming from an order granting summary judgment against it, PBP is entitled to its version of the facts.
The tract “is densely vegetated with a total of 35 acres. Two tracts bound it on the north owned by [defendant] MWV Investments LLC, and Burnett Partner[s] LTD. . . . The US 90 North Bound Frontage Road borders the project area on the west side.” Pat Black, the sole owner of PBP, presented evidence of his property being flooded by water coming from the north: “That property was flooded due to drainage of surface water from the land located to the north of my property.”
He also presented evidence from an engineer that the neighboring property did not drain onto his property during prior years. The engineer, Alejandro Flores, stated that “the drainage problems on Mr. Black’s property on Kennings Road were caused by drainage pattern[] changes in the property located north of Mr. Black’s property.” Flores examined the neighboring property and its drainage patterns during the 1970s and 1980s, as well as its current drainage patterns. He found changes between those pre-existing circumstances and the current ones. The PBP property “did not receive any runoff from the northern tracts in pre-existing conditions.” Flores elaborated:
Comparison of the Pre-Existing and Existing Conditions revealed two notable changes in the drainage patterns.
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1. In pre-existing conditions, the storm runoff sheet flowed west towards US 90 rather than discharging concentrated runoff into the project area . . . .
2. The runoff from the eastern part of the project area, in pre-
existing conditions, drained south towards the church tract and discharged into the ditch along Kennings Rd. . . .
In his view as an engineer, these “changes took place over the last few decades and have resulted in excess flooding depths” within PBP’s property.
Although the record apparently does not contain all the documentation that the engineer prepared, we nevertheless have evidence that something changed on the neighboring land in the past few decades, and that decades ago the PBP property got none of the runoff from the neighboring land, whereas it now gets enough of that runoff to suffer from drainage problems.
In addition to this evidence of a change for the worse, we have some evidence of a change for the better in more recent years. According to Black, his flooding problems stopped for a season when a berm was built on the neighboring land. That was the good news. The bad news is that berms eventually erode. Once the berm had worn down enough, surface water resumed overflowing onto the Black property, so Black texted Lindall Murff to ask him to rebuild the berm. Murff responded positively: “I’ll be happy to meet with you. I recall discussing this situation a couple of months ago and I said we would create another berm when it dries up.” However,
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before the ground dried up enough for the berm to be rebuilt, PBP wearied of waiting and filed the 2018 lawsuit.
The 2018 suit stated three claims: (1) negligence, (2) breach of contract, and (3) violation of Texas Water Code section 11.086(a), which says that a person may not “divert or impound the natural flow of surface waters.” Section 11.086(b) provides that a person damaged by such overflow has remedies in both law and equity: “A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.” TEX. WATER CODE § 11.086(b). Thus, the statute contemplates the possibility of injunctive relief.
But the 2018 lawsuit fizzled out when PBP nonsuited it in March 2021. At about that same time, PBP filed this 2021 lawsuit. The new filing came just before the nonsuit, although service of process did not occur until April. This time the petition does not mention negligence, breach of contract, or section 11.086. Instead, the petition alleges a cause of action for fraud. It complains about the text message from Murff as an actionable representation that the berm would be rebuilt.
The petition does not cite the Water Code, but paragraph 20 contains some of the language from section 11.086’s prohibition on diverting the natural flow of surface water:
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20. Permanent Mandatory Injunction
Defendants’ land continues to divert the flow of surface water and continues to flood Plaintiff’s land. Plaintiff therefore requests a permanent and mandatory injunction that Defendants take action to prevent the diversion of the surface water onto Plaintiff’s land.
The petition also seeks damages.
The Murff defendants moved for summary judgment on both traditional and no-evidence grounds. Among other things, the defendants invoked the two-year statute of limitations. The two-year statute applies to a suit “for trespass for injury to the estate or to the property of another.” TEX. CIV. PRAC. & REM. CODE § 16.003(a). (There is also a 10-year statute for acquiring real property by adverse possession, see id. § 16.026(a), but the motion did not address that statute, nor did PBP rely on that statute to argue that it filed suit within the limitations period.) The trial court granted the motion and ordered that PBP take nothing.
PBP moved for new trial. The motion cited JLMH I, which the Fort Worth court did not hand down until after the summary judgment motion and response. The motion argued that limitations will never run against an action to abate a nuisance: “According to the JLMH court, it is well settled that a plaintiff’s request for a permanent injunction to abate a nuisance is not barred by the statute of limitations even if the underlying claim for damages would be time-barred.” The trial court denied the new trial motion. Pat Black appealed to this Court. Meanwhile, the supreme court granted review and heard oral argument in JLMH II, ultimately
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disagreeing with the Fort Worth court’s view about limitations not being a defense to an action to abate a continuing nuisance. See JLMH II, 2026 WL 1871092, at *7 (concluding “[t]here is no stand-alone right to abate a nuisance or obtain an injunction,” “remedies are available only if liability is established under a cause of action,” and “it is the claim itself that determines which limitations period applies” (internal quotation omitted)).
Summary Judgment
In its sole issue on appeal, PBP argues that the trial court erred by granting summary judgment and dismissing PBP’s claim for injunctive relief because limitations does not bar an injunction to abate a continuing nuisance. A. Standard of Review No-evidence and traditional motions for summary judgment are reviewed de novo, and we examine the entire summary judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When the trial court does not state the basis for granting summary judgment, the appealing party must negate all grounds that support the judgment. See Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993).
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B. Analysis 1. The request for an injunction depends on a wrongful act.
PBP no longer seeks relief on its cause of action for fraud. Its appellate issue argues that the request for a permanent injunction should survive: “Did the trial court err by barring Appellant’s request for injunctive relief to abate the continuing nuisance?” Such an injunction requires four things: “To be entitled to a permanent injunction, a party must prove (1) a wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate remedy at law.” Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 792 (Tex. 2020).
2. The petition does not allege a wrongful act in seeking an injunction, but it does allege a wrongful act in contending that the “Defendants’ land continues to divert the flow of surface water.”
The central clash point involves the wrongful act. PBP appears to envision the wrongful act as the nuisance created by the flooding, but that cannot be right, because a nuisance is a species of injury and not a wrongful act. See Crosstex, 505 S.W.3d at 594–95; see also JLMH II, 2026 WL 1871092, at *7 (“A nuisance is not a cause of action but a type of ‘legal injury’ to ‘a person’s right to the use and enjoyment of property’ that ‘may result from [a] wrongful act’ and ‘give rise to a cause of action.’” (quoting Crosstex, 505 S.W.3d at 594–95)). Perhaps the wrongful act could be the fraud, but the fraud claim failed below and has not been pursued on
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appeal, so that cannot be right, either. If a wrongful act exists in this case, it must be something else.
Allegations of a wrongful act can be found in paragraph 20 of the petition, which accuses the defendants of continuing to “divert” the surface waters onto the PBP property. Diversion of surface waters can qualify as a wrongful act because of Water Code section 11.086, which prohibits diverting or impounding the natural flow of such waters.1 See TEX. WATER CODE § 11.086(a).
The record contains evidence of such diversion in the declarations from Pat Black and the engineer Alejandro Flores and Flores’s report. Although this evidence certainly falls short of being conclusive, it raises a fact issue about whether the Murff defendants have diverted the natural flow of the surface waters. The summary
1 Surface water has a specialized meaning, as we explained in Michaelski v. Wright, 444 S.W.3d 83, 93 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (op. on reh’g).
“The term surface water, as used in section 11.086, is not defined in the Water Code, but has been interpreted by Texas courts to mean water ‘which is diffused over the ground from falling rains or melting snows, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.’” Tex. Woman’s Univ. v. Methodist Hosp., 221 S.W.3d 267, 277 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (quoting Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex. App.—
Houston [14th Dist.] 2003, no pet.)). Diffuse surface water is distinct from floodwaters and from waters entering or following a defined course or channel. Id.
at 278. Floodwaters are waters that have overflowed a natural water course but remain a continuous part of that original water course. Id. Waters entering or following a defined course or channel are not considered diffuse surface water. Id.
This includes water in a ditch, a pond, pipes, or a river. Id. “Thus, a landowner might divert the entire Brazos River across his neighbor’s property without subjecting himself to liability under Section 11.086 of the Water Code.” Dietrich, 123 S.W.3d at 419.
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judgment therefore cannot stand unless the defendants have a way around this genuine issue of material fact.
Among other arguments supporting the summary judgment ruling, defendants say that Pat Black “did not plead a nuisance-based cause of action.” Based on this factual premise, they see the appeal as hopeless: “Without an underlying cause of action based on nuisance, Pat Black had no viable request for an injunction to abate a nuisance.” The premise fails, however, because paragraph 20 of the petition alleges a diversion of surface waters. We therefore turn to whether the statute of limitations bars PBP’s Water Code claim.
3. The allegations under the Water Code are time-barred for the reasons given by the supreme court in JLMH II.
In their supplemental briefing, the parties disagree over whether the defendants’ summary judgment motion was broad enough to encompass PBP’s claim under the Water Code. PBP argues that the motion never identified such a claim or addressed the elements of a section 11.086 claim. The defendants counter that their motion “broadly argued that this is an injury-to-real-property case pleaded ‘under the guise of fraud,’ that Pat Black learned of the flooding before March 2017, and that artful pleading could not avoid the two-year statute.” They argue that the grounds asserted in the motion “reach any injury-to-real-property theory, including any claim under the Water Code.” We agree with the defendants.
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The defendants began their summary judgment motion by stating that “Pat Black sued Defendants under the guise of fraud, alleging damages to real property based on drainage and flooding issues.”2 As their first basis for summary judgment, they asserted that “Pat Black’s claims are time-barred,” noting that PBP “learned of the flooding ‘[p]rior to March 2017’” but did not file suit until more than four years later in March 2021. However, suits to recover damages for permanent injury to land are subject to a two-year limitations period. It argued that PBP could not artfully plead its property damage claim as a fraud claim to take advantage of fraud’s longer limitations period. The “underlying nature of the claim” was damage to real property, and the two-year limitations period for suits to recover for permanent injury to land should govern.
The summary judgment motion did not mention section 11.086, just as PBP’s live pleading did not mention section 11.086. But the motion asserted that despite calling its claim a fraud claim, PBP “complained of damage to its property by surface water from the Defendants’ property.” They argued that PBP therefore brought a claim to recover for injury to its land, and it did so outside the two-year limitations period applicable to such claims. We conclude that the limitations argument in the
2 The defendants later argued that PBP “dresses up its claim as one for fraud, [but]
the suit is for injury to real property,” noting that PBP claimed injury for accelerated erosion, loss of land and use of land, and loss of property value. It also sought damages for loss of fair market value of the property. Thus, PBP made “an allegation of permanent injury to land.”
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defendants’ summary judgment motion is broad enough to encompass PBP’s section 11.086 claim, which alleged that “Defendants’ land continues to divert the flow of surface water and continues to flood Plaintiff’s land.”
As discussed above, defendants do not believe that PBP pleaded a claim under the Water Code. However, they argue in their supplemental briefing that even if this Court disagrees, summary judgment is still proper “because limitations bars any such claim as a matter of law.” We agree. As the defendants go on to note, “JLMH itself involved a pleaded Water Code claim seeking both damages and an injunction.” Although some kinds of cases may come under the 10-year statute instead of the 2- year statute, nothing here appears to qualify, and PBP has never alleged or argued that the 10-year statute ought to apply to this case. Instead, as the defendants observe, PBP seeks relief for private flooding, loss of use, and property damage, as occurred in JLMH. The facts and circumstances presented here sufficiently resemble those in JLMH that we regard that decision as controlling. See JLMH II, 2026 WL 1871092, at *7–8 (holding that plaintiff’s request for injunctive relief did not alter two-year limitations period applicable to all plaintiffs’ claims, including claim under Water Code section 11.086(a)); Graham v. Pirkey, 212 S.W.3d 507, 512 (Tex. App.— Austin 2006, no pet.) (applying two-year statute of limitations to claim that defendant violated Water Code section 11.086(a)); Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 95 (Tex. App.—Houston [1st Dist.] 1991, no writ) (same).
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Conclusion
In light of the supreme court’s decision in JLMH II, we affirm the summary judgment.
David Gunn
Justice
Panel consists of Justices Gunn, Caughey, and Morgan.