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Terrace v. City of Texarkana6/21/1999
of damages at trial to the four-year period preceding the filing of the lawsuit, i.e., December 16, 1990 to December 16, 1994, and TTL presented evidence of overcharges for this four-year period. The jury found there was no breach of contract by TWU, but it found in favor of TTL on the money had and received claim and awarded damages of $16,996.80, representing proven overcharges. After trial, TWU filed a motion to disregard jury finding or for judgment notwithstanding the verdict in which it argued that a two-year statute of limitations applied to a claim for money had and received. In the court's judgment, it held that a two-year statute of limitations did apply and awarded damages of $1,939.50, representing the period not more than two years prior to the filing of suit as supported by factually sufficient evidence. The court also awarded prejudgment interest at ten percent simple interest from December 16, 1994 to November 10, 1997, court costs of $2,109.25, and postjudgment interest at ten percent compounded annually.
TWU's Motion for Partial Summary Judgment
First, TTL contends the trial court erred in granting TWU's motion for partial summary judgment. Specifically, it argues that when a party seeks summary judgment based on the statute of limitations, it must prove when the cause of action accrued and negate the applicability of the discovery rule. Further, it argues that the trial court's summary judgment ruling applied to its money had and received claim, not merely to its breach of contract claim. TWU argues, however, that its motion for partial summary judgment dealt only with TTL's breach of contract claim and that TTL's claim for money had and received was not challenged by TWU in its motion. Therefore, it argues that TTL's contention is off point because it deals with the money had and received claim, and not the contract claim, in relation to the summary judgment ruling.
In its motion for partial summary judgment, TWU alludes to TTL's original petition and its assertion of a cause of action for breach of contract. It also refers to its own original answer in which it affirmatively asserted that TTL's claims are barred by limitations. However, under the caption "SUMMARY JUDGMENT GROUNDS," TWU's motion also states, " ased upon the foregoing, Defendant is entitled to Partial Summary Judgment for any alleged caused of action barred by the applicable statutes of limitation set forth in Chapter 16, Texas Civil Practices and Remedies Code." (Emphasis added.) On December 5, 1996, TTL filed its first amended original petition and by this pleading added its negligence and money had and received claims to its suit. On December 16, 1996, TWU filed its brief in support of its motion for partial summary judgment. In this document, TWU specifically references TTL's first amended original petition and directs its arguments against not only TTL's breach of contract claim, but against its tort claims as well. Further, TTL's first amended response to the motion for partial summary judgment discusses, without objection from TWU, all of the claims asserted in its first amended original petition. The court, in its order granting the motion for partial summary judgment, simply stated:
"After reviewing the motion, any responses or replies thereto, the briefs filed in support thereof, and after considering the evidence and the arguments of counsel, this court is of the opinion that the motion is meritorious and should be granted in all respects."
It is apparent from the record as a whole that the parties and the court treated TWU's motion for partial summary judgment as directed against all of TTL's claims, including its claim for money had and received. We rejec
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