Alberto R. Garza and Leticia I. Garza, Individually and as Next Friends of Alexandra I. Garza and Kassandra R. Garza v. Melden & Hunt, Inc., 13-14-00329-CV

Background

Plaintiffs Alberto and Leticia Garza sued Melden & Hunt, Inc. (surveyor) and others over chronic flooding of their Chateau Estates home, filing suit April 22, 2008; first flooding occurred in 1999–2000.
Claims included negligence, negligent misrepresentation, nuisance, DTPA, Texas Water Code violations, and later a claim for exemplary damages.
Melden & Hunt moved for summary judgment asserting (1) the Court of Appeals’ prior opinion held the Garzas’ claims accrued before Sept. 1, 2005 (law-of-the-case), and (2) independent summary-judgment proof showed accrual more than two years before suit; it also brought a no-evidence motion on exemplary damages.
The Garzas’ trial-court response relied mainly on the statute-of-repose argument (attempting to extend limitations to ten years) and made only a blanket reference to exhibits in opposing exemplary damages; they did not argue below that the nuisance was temporary.
The trial court granted partial summary judgment for Melden & Hunt (take-nothing as to the adult Garzas); appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment should be affirmed in full	Garzas contend nuisance may be "temporary" so some claims (2007/2008 floods) accrued later and survive limitations	Melden & Hunt argues Garzas waived challenge to law-of-the-case accrual finding, conceded permanence below, and summary judgment established accrual well before suit	Affirmed: Garzas waived/failed to challenge controlling accrual ground; nuisance is permanent as a matter of law on the record, so limitations bar applies
Whether the Court of Appeals’ prior opinion on accrual binds the case (law-of-the-case)	Garzas do not meaningfully contest prior accrual ruling on appeal	Melden & Hunt contends prior appellate decision determined accrual as a matter of law and precludes relitigation absent new facts or law	Court enforces law-of-the-case; prior opinion controls and supports summary judgment
Whether the nuisance is temporary (fresh accrual for each event) or permanent (single accrual at first event)	Garzas: nuisance is temporary; later floods created new accruals within limitations	Melden & Hunt: record and admissions show recurrent flooding from a permanent source; Schneider/Bates accrual rule favors permanent classification	Court treats nuisance as permanent as a matter of law on this record; accrual occurred with first flooding well before suit
Whether exemplary damages survived no-evidence motion	Garzas point generally to exhibits and a few deposition snippets to show malice/gross negligence	Melden & Hunt: Garzas failed to plead any imputation theory against the corporation, failed below to identify specific evidence or elements, and cited no clear-and-convincing proof of malice or gross negligence	Affirmed: Garzas waived appellate review of this ground and produced no competent evidence (much less clear-and-convincing) to raise a fact issue for exemplary damages

Key Cases Cited

Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) (announces standard for classifying nuisance as permanent vs. temporary and accrual rule)
In re K.M.S., 91 S.W.3d 331 (Tex. 2002) (lower courts must follow controlling higher-court rulings)
Unifund CCR Partners v. Weaver, 262 S.W.3d 796 (Tex. 2008) (failure to present written response to summary-judgment motion waives issues on appeal)
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008) (discusses heightened review / clear-and-convincing standard for exemplary damages)
Trinity River Auth. v. URS Consultants, Inc.-Tex., 889 S.W.2d 259 (Tex. 1994) (distinguishes statutes of limitations and repose principles)
Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970) (procedural point: nonmovant must challenge all summary-judgment grounds on appeal)