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Terrace v. City of Texarkana6/21/1999
ontract or we didn't, yes or no. . . . Whether the City - His causes of action are the same, whether the City made a mistake or whether made a mistake. Nobody really knows the answer to that question and, frankly, it doesn't matter."
The presumption stated by the supreme court in the El Paso Elec. Co. case (and quoted in the City of Austin case) that the defendant will follow the law was also relied upon in Precision Sheet Metal Mfg. Co. v. Yates, 794 S.W.2d 545, 550 (Tex. App.-Dallas 1990, writ denied). In that case, vendees of land sued the vendors to recover damages or equitable rescission for the vendors' failure to replat a subdivison in accordance with a platting statute. Because the vendors failed to replat after dividing their property into two parts and before their sale of a part of this property to the vendees, the vendees were unable to obtain a building permit to expand their business. The vendors moved for summary judgment on the basis of limitations, and the vendees asserted that the discovery rule applied. The trial court granted summary judgment for the vendors. On appeal, the vendors argued that the vendees were required to exercise reasonable diligence in considering the quality of the property conveyed prior to consummating the transaction and that the vendees had constructive or actual notice of all laws in effect at the time of the sale, including the platting statute. The vendees, however, argued that vendees of land lying within a city's limits may rely upon a presumption that the vendor has complied with the law in subdividing its property. Accordingly, they argued, their cause of action should not accrue until put on notice that their use is restricted by an appropriate governmental authority. In deciding whether the vendors' failure to replat was reasonably susceptible to discovery within the prescribed limitations period, the Dallas Court of Appeals cited the City of Austin case and held that the vendees had a right to rely on the presumption that the vendors would obey the mandatory language of the platting statute and file a plat of the resubdivision. Therefore, the court held, constructive knowledge of the platting statute was no defense and the discovery rule applied.
This same presumption is applicable in the present case. TTL had a right to rely on the presumption that TWU would obey the law and would give them the benefit of the rate they were entitled to receive. City of Austin, 631 S.W.2d at 566-67. TWU did not show that TTL possessed facts sufficient to cause it to believe an incorrect rate had been charged, or to put an ordinary and prudent person on inquiry. We hold that the discovery rule applies to toll the running of the statute of limitations until the time that TTL actually discovered its injury in February 1993.
An action for money had and received, being in the nature of an action for conversion, is subject to a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003 (Vernon 1986 & Supp. 1999); Pelto Oil Co. v. CSX Oil & Gas Corp., 804 S.W.2d 583, 586 (Tex. App.-Houston [1st Dist.] 1991, writ denied); see also Autry, 933 S.W.2d at 190 n.7; Cherokee Water Co. v. Advance Oil & Gas Co., 843 S.W.2d 132, 135 (Tex. App.-Texarkana 1992, writ denied). We note that TTL agrees that its claim for money had and received is governed by a two-year statute of limitations. Here, TTL filed its original petition for breach of contract on December 16, 1994. On December 5, 1996, it filed a first amended original petition which, based on the same alleged overbilling by TWU, added new claims for negligence and for money had and received. On March 17, 1997, TTL filed a second amended original petition alleging only claims
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