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Terrace v. City of Texarkana6/21/1999
aising a fact issue in avoidance of the statute of limitations. Id.
Applying the first prong of the KPMG Peat Marwick test to the present case, the parties do not dispute when TTL's cause of action for money had and received accrued. A cause of action for money had and received accrues when money is paid. Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 163-64 (Tex. App.-El Paso 1997, no writ); see also Autry v. Dearman, 933 S.W.2d 182, 190 n.7 (Tex. App.-Houston [14th Dist.] 1996, writ denied). Here, the accrual of individual causes of action correspond with each monthly overcharge. TTL's own pleadings demonstrate that claims for money had and received accrued on a monthly basis in that TTL seeks an award of prejudgment interest "from the date of each overpayment through the date of judgment." Each cause of action for conversion of money accrued when TTL undisputedly paid each month's bill containing overcharges.
Under the second prong of KPMG Peat Marwick, again there is no dispute that TTL pled the discovery rule in its original petition and raised it in its responses to TWU's motion for partial summary judgment. We must now decide whether TWU established that the discovery rule does not apply by conclusively showing either that the injury incurred was not inherently undiscoverable or that the evidence of injury was not objectively verifiable. TWU does not dispute that the evidence of injury is objectively verifiable. It does contend, however, that the injury to TTL was not inherently undiscoverable and states:
"The summary judgment evidence attached to TTL's First Amended Response to TWU's Motion for Partial Summary Judgment demonstrates that TTL's injury was not inherently undiscoverable. For example, the Affidavit of Douglas W. Hunt [president of the management company which manages Tanglewood Terrace Apartments] reveals that TTL discovered TTU's alleged errors during a routine check for leaks at the Tanglewood Terrace Apartments: "In 1993, my father (William J. Hunt) and I contacted the City of Texarkana (the "City") about locating possible water leaks at Tanglewood Terrace. During the process of checking for leaks, we turned off each of the four meters providing water service to the complex in order to determine which meters serviced which apartments. During this process, my father and I discovered . . . that one meter at the complex was originally classified as servicing 164 apartments when, in fact, the meter serviced only 64 apartments. We also discovered . . . that two other meters were erroneously classified as commercial rather than residential meters." "Douglas W. Hunt's testimony demonstrates that, although TTL did not discover the discrepancy regarding the number of units and classifications of the meters until 1993, TTL could have discovered the discrepancy at any time after the meters were installed by simply conducting a routine check. Accordingly, TTL was not unable to learn of its injury until 1993, and the discovery rule cannot apply as a matter of law."
TWU correctly states, "The discovery rule defers accrual of a cause of action until a claimant knows or in the exercise of reasonable diligence should know of the facts giving rise to the cause of action." However, TWU then relies on language found in several courts of appeals decisions for what it contends is a general "unable to discover" requirement of the discovery rule: that the claimant "did not know and could not have known of the injury at the time." The Texas Supreme Court explained in S.V. why such a requirement is illogical:
"To be "inherently undiscoverable", an injury need not be absolutely impossible to discover, else suit would never be filed and the question whether to appl
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