Opinion issued August 11, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00941-CV
PAT BLACK PROPERTIES, LLC, Appellant
V.
LINDALL V. MURFF, MWV INVESTMENTS, LLC AND BILL MURFF
TURF FARM, INC., Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2021-13863
MEMORANDUM OPINION
Anyone who has lived for very long in Harris County knows that disputes
about drainage and flooding can turn the closest neighbors into the bitterest enemies. 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 preexisting 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.
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