ZIMMERHANZEL v. Green
346 S.W.3d 721
Tex. App.2011Background
- FEMA defines SFHA as areas with a 1% annual flood chance; lenders must determine SFHA status and notify buyers, with optional third-party confirmations.
- Zimmerhanzels bought property in 2004; lender used SRG to determine SFHA status, which stated the house was not in an SFHA.
- Green prepared an appraisal and provided a map showing the house not in an SFHA; a survey similarly showed no SFHA.
- Closing occurred after the Smiths disclosed prior flooding and assigned their flood insurance to the Zimmerhanzels.
- In 2007, the property flooded heavily; flood plain manager subsequently found the house mostly within an SFHA and ordered demolition.
- Zimmerhanzels sued Green and SRG in 2008 for negligence, negligent misrepresentation, and DTPA; defendants moved for summary judgment on time-bar grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims are time-barred by limitations | Discovery rule postpones accrual to 2007 when flooding revealed SFHA status. | Accrual occurred at purchase in 2004; limitations run from then. | Claims are time-barred; accrual occurred at purchase. |
| Whether discovery rule applies to DTPA claims | Discovery rule defers accrual for DTPA claims until discovery of the deceptive act. | Discovery rule is limited and public records/public information negate deferral. | Discovery rule cannot defer accrual given public information and notice. |
| Whether Zimmerhanzels had notice and could have discovered earlier | They relied on SRG/Green and lender disclosures and could not have known SFHA status earlier. | There was notice at closing and disclosure would have led to inquiry. | Knowledge of prior flooding, near creek, and public SFHA maps gave notice; early discovery possible. |
Key Cases Cited
- Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114 (Tex.App.-San Antonio 2002) (defines SFHA and related lender duties)
- Audler v. CBC Innovis Inc., 519 F.3d 239 (5th Cir.2008) (third-party flood determinations may be limited in scope of duty)
- Salinas v. Gary Pools, Inc., 31 S.W.3d 333 (Tex.App.-San Antonio 2000) (discovery rule applies to DTPA claims)
- HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (discovery rule timing and accrual principles)
- Gonzales v. Southwest Olshan Found. Repair Co., LLC, 345 S.W.3d 431 (Tex.App.-San Antonio 2011) (knowledge that would cause inquiry equates to discovery for limitations purposes)
- Transcontinental Realty Invs., Inc. v. John T. Lupton Trust, 286 S.W.3d 635 (Tex.App.-Dallas 2009) (treats summary judgment evidence as possible admissions)