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Terrace v. City of Texarkana6/21/1999
for breach of contract and for money had and received. Although TTL's claim for money had and received was not filed within two years of February 1993, the parties do not dispute that TTL's initial claim for breach of contract was filed within the applicable four-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 1986). Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997) provides that if a filed pleading relates to a cause of action that is not subject to a plea of limitation when it is filed, a subsequent amendment that changes the facts or grounds of liability is not subject to a plea of limitation unless the amendment is wholly based on a new, distinct, or different transaction or occurrence. See Shivers v. Texaco Exploration and Prod., Inc., 965 S.W.2d 727, 736 (Tex. App.-Texarkana 1998, writ denied); Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 118 (Tex. App.-El Paso 1997, writ denied); Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 601 (Tex. App.-Texarkana 1994, writ denied). The purpose of Section 16.068 was to liberalize the plaintiff's right to amend a petition filed before a cause of action was barred by limitations and include any other causes of action that could be based on the same transaction or occurrence. Oliveros v. Dillon-Beck Mfg. Co., 260 S.W.2d 707, 710 (Tex. Civ. App.-Galveston 1953, no writ). The test to determine whether an amended petition relates back to the original petition has two prongs. First, the cause of action asserted in the first pleading must not have been time barred when filed, because if limitations barred the original cause of action, it will bar a new cause of action asserted in the amended petition even if it is from the same transaction or occurrence. Second, the amendment must not be based on a wholly new or different transaction or occurrence. Tippit v. Tippit, 865 S.W.2d 624, 627 (Tex. App.-Waco 1993, no writ); Cooke v. Maxam Tool and Supply, Inc., 854 S.W.2d 136, 141 (Tex. App.-Houston [14th Dist.] 1993, writ denied); see Almazan v. United Servs. Auto. Ass'n, Inc., 840 S.W.2d 776, 778 (Tex. App.-San Antonio 1992, writ denied).
Here, because the applicable limitations period did not bar TTL's contract claim in its original petition, and because TTL's claim for money had and received in its second amended original petition was based on the same transaction or occurrence as its initial contract claim, TTL's second amended original petition relates back to the original petition and TTL's claim for money had and received is not barred by limitations.
Having determined that the discovery rule applies in this case and that TTL's claim for money had and received is not barred by limitations, we now address the remaining issue under the second prong of the test set out in KPMG Peat Marwick, i.e., whether TWU negated the discovery rule by proving as a matter of law that there was no genuine issue of material fact about when TTL in the exercise of reasonable diligence should have discovered the nature of its injury . In making this review we take as true all evidence favorable to the non-movant and make all reasonable inferences in the non-movant's favor. TWU's summary judgment proof is found in a supplement to its motion for partial summary judgment and contains affidavits and deposition testimony.
Nothing in TWU's own proof, or in TTL's proof which TWU references, addresses this issue of when TTL should have discovered the nature of its injury. As noted earlier, TWU directs us only to TTL's summary judgment evidence of its actual discovery of the nature of its injury in February 1993. Upon review of this evidence, we find it insufficient to prove as a matter of law that there was no genuine issu
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