*1 reasons, For these we cannot conclude 521.451(a)(1) James ZIMMERHANZEL and Linda and section
that subsection Zimmerhanzel, Appellants, code are in transportation 521.455 of the forgery provision materia with the pari Allen’s that forms the basis for indictment. GREEN, III, Johnnie G. Accordingly, we hold that the district court Stormwater Research by granting quash erred Allen’s motion to Group, Appellees. and that the State has the discretion to charge penal Allen under code section No. 08-09-00116-CV. Mills, 32.21. at Texas, Appeals Court of therefore the State’s
We sustain issue El Paso. appeal.
April 2011. Rehearing Overruled June CONCLUSION Having determined that the district by granting
court erred Allen’s motion to quash, we remand the cause for further proceedings opinion. consistent with this fundamentally misplaced. dictment was flawed because it Allen’s reliance on this case is Holbrook, allege possessed failed appeals that he a license In the court of criminal Ultimately, determining with the intent to use it. Id. was not confronted wheth- appeals granted court actually pari of criminal the relief er the two statutes were in requested and dismissed the indictment. materia and comment the rela- discussing unlawful-possession tionship between those statutes was dicta. statute, Moreover, appeals the court of criminal com- the statute issue Holbrook alleged pro- prohibit proscribed mented that the offense is also did not the conduct 521.451(a)(1) "general forgery scribed statute.” Id. sections and 521.455 of the Further, Transp. transportation court noted that the unlawful- code. See Tex. Code fact, 521.451(a)(1),
possession special §§ statute "is a statute which .455. as de- above, directly possession deals with the unlawful scribed when the statute at issue recodified, subsequently placed a counterfeit driver’s license. Under such it was into circumstances, special transportation statute controls section 521.456 of the code. (West general light Supp.2010) (prohibit- over the statute.” Id. In of this See id. 521.456 language, ing delivery Allen insists court of crimi- or manufacture of counterfeit in- struments). appeals already Accordingly, nal has determined that we cannot embrace forgery driver’s license statutes and the that the court of criminal "[t]he Allen’s assertion pari appeals statute are in materia ... and [that the] Holbrook held that the statutes at specific pari driver’s license statutes control over case are in with the issue this materia general penal forgery provision.” forgery code statute. *2 Richards, Richards, Rodriguez
Clark Skeith, LLP, Austin, TX, Appellee Group. Stormwater Research *3 Green, III, TX, Johnnie Seguin, pro G. se. CHEW, C.J., RIVERA, J.,
Before LARSEN, J.
OPINION CHEW,
DAVID WELLINGTON Chief Justice.
James and Linda Zimmerhanzel appeal summary judgments from entered in favor Green, of Johnnie III and Stormwater Re- (SRG). Group search Emergency The Federal Man (FEMA) agement Agency creates maps of (SFHA), special flood hazard areas which are defined as areas of land that would be having percent inundated a flood a one occurring any year. chance of given Co., Nast State Farm Fire & Cas. 2 (Tex.App.-San S.W.3d 119 n. Anto nio These areas are com monly 100-year plains. referred to as Id. Pursuant to the National Flood Insur Act, lending ance must deter institutions property mine whether a is within an SFHA, is, notify the lender must purchaser closing before and ensure is obtained. Audler v. flood insurance (5th Inc., Innovis 519 F.3d CBC Cir.2008). may delegate A lender to a party determining third the task of wheth-. particular piece property er a falls with party guarantees in an SFHA if the third Audler, accuracy of the information. required The insurance 519 F.3d through FEMA. See may be obtained Nast, 82 at 119 & n. 2. If the SFHA, not in an the owner Nickel, property is Angela Angela D. Law Office of Audler, Nickel, P.C., TX, may buy still flood insurance. Appel- Seguin, D. lants. F.3d at 245. have to be built new residence would plain.1 a creek of the flood surrounding land near outside
house and
In con-
Nancy Smith.
from William and
against
brought
The Zimmerhanzels
suit
transaction, the Zimmer-
nection with
and businesses involved
individuals
several
a standard flood
obtained
hanzels’ lender
property, including
purchase
in their
SRG,
from
which
hazard determination
lender,
Smiths,
surveyor.
house on the
stated
only
we are concerned
appeal,
In this
ap-
an
performed
Green
not in an SFHA.
Green
against
in-
appraisal
property.
praisal of
defen-
Regarding both of these
and SRG.
*4
showing that the house was
a map
cluded
dants,
the Zimmerhanzels asserted
Likewise,
survey
a
was
in
SFHA.
an
negligence, negligent misrepresenta-
for
the transac-
with
completed
connection
tion,
Deceptive
violation of the Texas
and
tion,
the home
be
and it did not show
(DTPA). They claim
Practices Act
Trade
they closed on the trans-
Before
an SFHA.
prop-
would not have
the
that
action,
reviewed both
Zimmerhanzels
the
if
had known that
it is
an
erty
survey
the
and were
appraisal
the
and
summary
sought
SFHA. SRG and Green
lender of SRG’s determi-
-by
advised
and,
grounds
numerous
after
judgment on
not in an SFHA.
that the home was
nation
they ob-
responded,
the Zimmerhanzels
also received
Zimmerhanzels
the
summary
jected to
Smiths, which
notice from the
disclosure
The court
judgment evidence.
sustained
flood-
previous
had been
showed that there
“in
granted
and
the motions
objections
the
told the
ing
property.
of the
Smiths
respects.”
all
property “had
Zimmerhanzels that
the
appeal,
On
once
an inch or two
water
taken on
the
They
three issues.
contend that
raise
closing, the
On the date of the
before.”
summary
granting
erred in
trial court
FEMA flood insur-
assigned their
Smiths
Green,
summary
granting
for
judgment
ance
to the Zimmerhanzels.
policy
SRG,
sustaining
and in
the
judgment for
the
flooded due
summary judgment evi
objections to their
water en-
rain. Thirteen inches of
heavy
unnecessary
find it
to reach
dence. We
flood, the Zim-
tered the house. After the
issue,
summary
the
third
merhanzels learned that
the house
evidence, because even when
judgment
times while it
flooded at least four other
and
accepted
that evidence is
as true
Zimmer-
by
owned
the Smiths. Linda
light
in the
most favorable to the
viewed
the local flood
hanzel visited the office of
Zimmerhanzels,
that the sum
we conclude
that most of
plain manager and discovered
mary judgments
properly granted.
were
house,
in an
including
is
property,
sought
summary judgment is
plain manager
asked the flood
SFHA. She
multiple grounds,
we will
granted
conducting an
to review the matter. After
any
grounds
if
of the
is meritorious.
affirm
house
inspection, he concluded that
Smith,
234 S.W.3d
fifty percent damaged. As See O’Donnell
was more than
2007),
288
result,
(Tex.App.-San
aff'd,
140
Antonio
the home
he ordered
demolished
Trostle,
(Tex.2009);
417
Trostle v.
Zimmerhanzels that
and instructed the
one,
building
manager,
a new
be-
plain
FEMA de-
the old house and
1. Unlike the flood
repaired.
coverage
policy
termined that the house could be
for the
cause their
excluded
ap-
Although
paid
FEMA
complying
requiring
law
de-
cost
$59,000
house,
damage
proximately
to the
molition.
tearing
it refused to cover the cost of
down
(Tex.App.-Amarillo
diligence
of reasonable
77 S.W.3d
have discov
Among
grounds,
other
false,
ered
occurrence
mislead
summary
and Green asserted in their
SRG
ing, or deceptive
practice.”).
act or
Be
motions that the Zimmerhanzels’
that,
yond
discovery
very
rule is “a
undisputed
time barred.
It is
claims are
limited exception to statutes of limitations”
two-year
period
applies
limitations
and applies only
plaintiffs’
when the
injury
to all of the Zimmerhanzels’ claims. See
inherently
is
undiscoverable
objective
(West
§
17.565
&
Tex.Bus.
Com.Code
Brown,
ly
Wagner
verifiable.
&
Ltd. v.
2011);
Tex.Civ.Prac.
Rem.Code
Ann. Horwood,
(Tex.2001).
58 S.W.3d
16.003(a)(West
Supp.2010); HECI Ex
Neel,
ploration Co. v.
“An injury
inherently
is
undis-
(Tex.1998). They
in January
filed suit
is,
nature,
unlikely
coverable
its
2008. SRG and Green contend that
the be
prescribed
discovered within the
limita
period began
August
limitations
to run in
period despite
diligence.”
tions
due
Id. at
when
Zimmerhanzels closed on
“Inherently
undiscoverable” does
*5
rule,
Relying
the discovery
house.
particular plaintiffs
not mean that
did not
the Zimmerhanzels
their
argue that
particular injuries
discover their
within the
until July
did not accrue
which is
period.
limitations
Id. at 735. The issue
property
they
when the
flooded and
injury
type
is whether the
is of a
that
They
learned that
was
an SFHA.
generally is discoverable in the exercise of
suggest
they
that
could not have known
diligence.
“Knowledge
reasonable
of
they
buying
that
were
a house that would
facts, conditions, or circumstances that
they
flood because
relied on SRG’s flood
would
a reasonable person
cause
to make
determination,
appraisal,
hazard
Green’s
inquiry
equivalent
...
is
to knowledge of
survey,
as well as the Smiths’
pur
the cause of action for limitation
property
assurance that the
had only tak
poses.” Southwest
Repair
Olshan Found.
en on one or two inches of water on one
Co.,
Gonzales,
LLC v.
345 S.W.3d
438
previous occasion.
(Tex.App.-San
pet.h.).
Antonio
no
rule,
a general
“As
a cause of
action accrues and the statute of limita
plaintiffs plead
the discov
begins
tions
to run when facts come into
rule,
ery
who
defendant
moves for sum
existence that authorize a
to seek a
party
mary judgment on the affirmative defense
judicial remedy.” Provident
& Acci
Life
prove
of limitations must
as a matter of
Knott,
dent Ins.
Co.
128 S.W.3d
law that
is no
genuine
there
issue mate
(Tex.2003).
discovery
operates
The
rule
to
rial fact
when the plaintiffs
about
plaintiffs
defer accrual of a claim until the
injury
have
their
in the exercise
discovered
or,
knew in the exercise of reasonable dili
diligence.
of reasonable
Peat
KPMG
gence,
wrongful
should have known of the
County
Marwick v. Harrison
Hous. Fin.
causing
injury.
act
Gary
Salinas v.
(Tex.1999);
Corp., 988 S.W.2d
Sa
Pools, Inc.,
(Tex.App.
31 S.W.3d
linas, 31
at 336. If the defendant
discovery
San Antonio
The
conclusively
establishes
statute
Id.;
always applies
rule
to DTPA claims.
claims,
plaintiffs’
limitations bars the
see also
17.565
TexBus.
Com.Code
summary
then
plaintiffs
judg
must
submit
(stating that DTPA suits must be filed
proof raising
ment
a fact issue
avoid
years
“within two
after the date on which
ance of the statute of limitations. See
false,
misleading,
deceptive
or
act or
Marwick,
748;
Peat
988 S.W.2d at
practice
years
or
KPMG
occurred within two
after
Salinas,
the consumer discovered or
the exercise
Here, pet.)(treating were on notice judicial admis- response as a subject to flood- new home was that their sion). has indicated Supreme Court they knew that closing: time of ing at the ready source of creek; public that records “are they were advised it was near information, for fail- and a cause of action orally that the home writing and both in that same information is provide and the Smiths ure to previously; had flooded HECI, 982 inherently them. undiscoverable.” insurance to assigned their flood at 887. circumstances would cause S.W.2d These facts and further and inquire to person a reasonable Because the information cause of knowledge thus amount pub- within the SFHA was home’s location purposes. limitation See Gon- action for and the Zimmerhanzels were licly available zales, Although the at 437-38. subject the home was on notice that they would Zimmerhanzels now assert discovery rule cannot defer flooding, the property not have until the accrual of their claims SFHA, nothing in an there is known it was that the home was an SFHA. learned purchase that the contract to to indicate that the claims SRG and Green established upon this con- property contingent pur- accrued when dition, Zimmerhanzels did not take conclude that property chased the and we verify whether the steps affirmative claims are time 100-year plain. was in the correctly granted The trial court barred. defen- took the word of the They simply summary judgment. *6 summary judgment evi- dants. Their own two issues are The Zimmerhanzels’ first responses demonstrate dence overruled, the trial of the ability to confirm whether affirmed. court is were accurate. representations defendants’ Zimmerhanzel averred in an affida- Linda LARSEN, J., sitting by assignment. flood, “personally she vit that after the RIVERA, Justice, GUADALUPE could plain maps the flood reviewed concurring. in the In house located SFHA.” see [her] separately empha- I concur but write summary judg- response their to Green’s majority’s holding must be size that motion, stated, ment presented in this case. limited to facts ... can “The true location of the SFHA emphasis, I much Initially, place would not easily by reviewing obtained the flood be all, on whether the Zimmerhan- at the office of the local flood maps zone at closing that their home zels had notice fact, precisely In this is plain manager. it was near a simply could flood because Green’s mis- how Plaintiffs discovered before, creek, it had flooded and the sell- response to SRG’s take.” And in their to them. assigned ers their flood insurance flood, motion, stated, “Following the Indeed, although may generally those facts maps flood Plaintiffs reviewed the FEMA to establish notice to ordi- be sufficient the structure within the SFHA and located buyer, the facts here also demon- nary Holy See Cross Church themselves.” ad- strate that the Zimmerhanzels were Wolf, 44 v. God Christ by experts that their house was vised (Tex.2001)(holding that statement Special in a Flood Hazard Area located relating to a summary judgment response (SFHA). judicial admis- claim’s accrual date was Invs., buyer sion); general, I believe that a Realty Inc. Transcontinental Trust, rely experts by hired be entitled to on Lupton v. T. John whether mortgage company to determine (Tex.App.-Dallas 645-46 Special is located in a his or her house (SFHA). Wife, Kathy Paul v.
Flood Hazard Area Mike WILLIAMS and Determination, Inc., 550 Flood Williams, Appellants, Landsafe (5th Cir.2008)(determin- F.3d 516-19 ing Mississippi experts under law that re- perform Lloyd GILLESPIE, tained lender to a flood zone Appellee. buyer duty determination owe to the No. 06-10-00054-CV. make issue correct determinations as the experts is whether the could have reason- Texas, of Appeals Court rely ably buyer foreseen that the would on Texarkana. determination).1 Indeed, April Submitted 2011. would not how to ordinary buyer know that, my make such a determination as Decided May 2011. opinion, requires specialized knowledge. Rehearing July Overruled problem But therein with this case. lies Linda Zimmerhanzel stated in affidavit her easy only
that it was for her to not find the also maps, SFHA but to read them and determine house was with- that her located in the SFHA zone. Had that evidence not court, might
been the trial I presented to reach an conclusion. opposite once the how Zimmerhanzel demonstrated
simple it make such a was to determina- own, tion having on their also been previous flooding notice of the house, other option there is no but to hold *7 Zimmerhanzels, reason- through diligence,
able could have discovered claims at the time closed on their house. comments, I concur.
With these Inc., 1. SRG relies on Andler v. CBC Innovis benefit the determination was intended. Cir.2008), (5th Circuit, 519 F.3d assert that the Fifth determination, flood zone determination "is not to inform making its relied Louisiana status, borrower home’s flood zone but at 253. I Have been unable to find law. Id. protect rather to the lender and the federal addressing or state the issue federal cases government that is from financial risk except under Texas law foe dicta Wentwood posed by homes located in flood uninsured I, Mortg. LP v. Woodside GMAC Commercial Thus, zones." Id. at Audler concluded Cir.2005). (5th Corp., F.3d Suf- company that a flood determination retained say, I fice it believe that reaches the Paul perform a deter- the lender to flood zone issue need appropriate more result. But that borrower’s, property mination on a does at this time for reasons not be decided duty owe a to the borrower as the borrower is below. discussed group whose not a member of limited