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Terrace v. City of Texarkana6/21/1999
ot satisfy TWU's burden pursuant to its motion for partial summary judgment.
The task in deciding if the plaintiff's injury is inherently undiscoverable is not in deciding whether the plaintiff could have discovered the injury, but in deciding whether he actually did discover it or, in the exercise of reasonable diligence, should have discovered it. Here, TWU directs this Court only to summary judgment evidence showing that TTL did actually discover its injury in 1993. TWU wholly failed in its burden to show when TTL should have discovered its injury.
City of Austin v. North Austin State Bank, 631 S.W.2d 564 (Tex. App.-Austin 1982, no writ), was decided on facts very similar to the present case. Although not directly concerned with the discovery rule as such, this case dealt with constructive knowledge of a bank that had been overcharged for electricity. The bank sued the city to recover excess sums it paid to the city for electricity provided from 1972 to 1979. The overcharges resulted from the city's error in computing the bank's monthly utility statements. Pursuant to a city ordinance, the city charged the rate applicable to customers using both electricity and gas for energy. The bank, however, used only electricity and, therefore, was entitled to a lower rate. The trial court found for the bank, and the city appealed. Id. at 565-66. On appeal, the city argued that the trial court erred because the bank had constructive notice of the city's mistake more than two years before suit was filed and, therefore, the bank's action for money had and received was barred by the two-year statute of limitations. Specifically, the city argued that the bank could have discovered the mistake by comparing the applicable city utility ordinance, of which the bank had constructive notice, to the erroneous billing code shown on the bank's monthly statements. Therefore, the city argued, the bank was put on inquiry and if the matter had been pursued with diligence, the bank would have discovered the city's mistake in assigning an erroneous classification and rate. The Austin Court of Appeals rejected the city's argument and affirmed the judgment of the trial court, thus finding for the bank. In doing so, the court relied on language of the Texas Supreme Court in El Paso Elec. Co. v. Raynolds Holding Co., 128 Tex. 495, 100 S.W.2d 97, 101-02 (1937), as follows:
"Plaintiffs had a right to rely on the presumption that defendant would obey the law and would give them the benefit of the rate they were entitled to receive under the published schedule. . . . Whatever may be the rule with reference to the use of diligence to discover fraud, we hold in this instance that owing to the relation of the parties . . . plaintiffs were under no duty to exercise diligence to discover the over-charges (even if they could have reasonably done so) until they came into possession of facts sufficient to cause them to distrust defendant, and also to put an ordinarily prudent person on inquiry." City of Austin, 631 S.W.2d at 566-67.
TWU contends that City of Austin is distinguishable because in that case the overcharges resulted from the city's admitted error in computing the bank's monthly utility statements, whereas in the present case, we do not know how the billing error occurred. However, TWU's position at trial was that fault in the admitted overcharges did not matter. In attempting to settle a question as to the admission of evidence outside the presence of the jury, TWU's counsel stated:
"I'm saying that [TTL's counsel] can prove his breach of contract cause of action and his money had and received cause of action. Fault, at least on the City's part, is not the issue. Either we breached the c
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