A Remedy Is Not a Claim: Texas Limitations and Injunctions

The Texas Supreme Court reinstated a take-nothing summary judgment on June 26, 2026, against a Fort Worth landowner whose building had been flooding since 2016, holding that the two-year statute of limitations in Section 16.003(a) of the Civil Practice and Remedies Code bars a request to enjoin a nuisance the same way it bars the damages claim underneath it. Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC, No. 24-0543 (Tex. June 26, 2026). Texas courts of appeals had been saying the opposite since 1895.

The new rule is short. An injunction is a remedy, and a remedy has no life of its own apart from the claim that carries it — so when limitations kills the claim, the request for an injunction dies as well.

Every Time It Rained

JLMH Investments owned a commercial building in Fort Worth. Next door, between 2014 and 2016, the defendants built a Family Dollar store. After it opened, JLMH’s owner noticed that her property flooded — in her words, every time it rained. An employee reported new cracks spreading across the parking lot. Two years of complaints to the City went nowhere. In March 2019, a plumber told her the building was sitting in the middle of a lake, and in May, an engineer traced the water to the store’s drainage system.

JLMH sued on May 8, 2020, pleading nuisance, trespass, negligence, intentional diversion of surface water, and a claim under Section 11.086 of the Texas Water Code. It asked for money. It didn’t ask for an injunction until March 10, 2023, almost three years into the case.

That amendment is the whole case.

The trial court granted summary judgment for every defendant in April 2023, stating that the order disposed of all parties and all claims. The Fort Worth Court of Appeals agreed the nuisance was permanent as a matter of law, agreed the claims accrued in 2016 or 2017, and agreed the damages claims were time-barred. Then it revived the injunction request and sent it back, on the ground that limitations is never a defense to abating a nuisance. JLMH Investments, LLC v. Family Dollar Stores of Texas, LLC, 716 S.W.3d 770 (Tex. App.—Fort Worth 2024) (mem. op.).

Does the Statute of Limitations Apply to an Injunction in Texas?

It does now. Seven justices joined Part II of Justice Busby’s opinion, which puts the point as such:

There is no stand-alone right to abate a nuisance or obtain an injunction. Regardless of the relief a party seeks, “remedies are available only if liability is established under a cause of action.”

The inner quotation comes from Etan Industries, Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011), and it carries the weight of the opinion. The holding follows: “We hold that the two-year statute of limitations bars JLMH’s trespass, negligence, and Water Code claims seeking both damages and an injunction.”

What died here was an idea, not a case. Since International & Great Northern Railway v. Davis, 29 S.W. 483, 484 (Tex. Civ. App.—Austin 1895), Texas intermediate courts had repeated that nobody acquires a prescriptive right to maintain a nuisance, and had drawn from that premise a free-standing entitlement to abatement that limitations couldn’t reach. The Supreme Court noticed the rule twice over twenty years without deciding whether it was right. It’s now wrong.

But the implication affects anyone sitting on a continuing physical intrusion — drainage, encroachment, vibration, odor, a neighbor’s improvement that pushes water where it didn’t used to go. Adding a prayer for injunctive relief to an untimely petition is a lost cause, so to speak (pun intended). The claim underneath has to be alive, which means the discovery rule and fraudulent concealment arguments that Texas courts read narrowly will be even more important in this context.

The Fence Justice Busby Left Standing

Justice Busby then wrote a seventeen-page concurrence to his own majority opinion, joined by Justices Lehrmann and Devine. It opens on Chesterton:

Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.

His worry is that the bar will read Part II too broadly, and he names the two questions the Court didn’t answer: “today’s opinion should not be understood to express any view regarding when the ten-year statute applies or whether or how limitations plays a role in public nuisance cases.” Sections 16.021(3) and 16.026(a) of the Civil Practice and Remedies Code set ten-year periods, and a suit brought to stop an adverse use before it ripens into a prescriptive easement may be measured against those instead. Different fight, different clock. A landowner facing an encroachment should work out which statute governs before assuming two years is the answer.

How the Appeal Almost Didn’t Happen

Here’s the part that should worry appellate counsel more than the nuisance holding does.

After the April 17 summary judgment — which recited that it was final and disposed of everything — the trial court signed an order in May 2023 titled “Order Clarifying Summary Judgment Orders and Order Allowing Permissive Interlocutory Appeal,” granting a permissive appeal and a stay. JLMH never perfected the permissive appeal. It filed a conventional notice of appeal instead.

And three justices thought that was fatal. Justice Sullivan, joined by Chief Justice Blacklock and Justice Hawkins, would have dismissed for want of appellate jurisdiction, reasoning that the May order functionally withdrew part of the judgment and left it interlocutory. His dissent opens on a 1970s Italian pop single built entirely of nonsense syllables that sound like English: “The song is funny because it violates language’s first and greatest commandment: say something.” Court orders mean what they say, and a stay of proceedings implies there are proceedings left to stay.

Only three justices joined the Court’s reasoning on appellate jurisdiction. Part I is a plurality. Its rule — “a trial court cannot eliminate express finality language by implication—it must do so directly” — is the one to calendar against, because six justices found jurisdiction and three would have thrown the appeal out on the courthouse steps.

The operative lesson doesn’t turn on which camp you find persuasive. If the order you’re appealing carries finality language, treat it as final and calendar from that order, and don’t let a later “clarifying” order talk you out of a conventional notice of appeal. If you want the permissive route, perfect it. Doing neither cleanly is how a party ends up arguing about whether a court has power to hear the dispute rather than arguing the dispute, and Texas courts treat jurisdiction as a threshold question no party can waive into existence.

What Property Owners Should Do Now

So date the interference, not the lawsuit. Limitations on a permanent nuisance run from when the injury first occurs and is discovered, and the Court has now closed the exit that let a plaintiff lose the damages case and still get the drainage torn out. Two years isn’t long for a problem that first announces itself as a puddle.

Hire the engineer early. JLMH’s causation opinion arrived in May 2019, three years after the flooding started. An expert who can date the onset of an interference is worth far more at the front of a case than at the back of one, and in a commercial real property dispute that report often decides whether the nuisance is permanent or temporary.

And read a remedy for what it is. Injunctive relief, declaratory relief, attorney’s fees, a constructive trust — each of them rides on a live cause of action, and the reasoning the Court applied here reaches all of them. A plaintiff who pleads a remedy as though it were a claim is pleading a wish. That’s a discipline worth applying at the pleading stage of any Texas business litigation matter, not just a drainage fight.

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship with Freeman Law. The law is fact-specific and subject to change, and the decisions discussed above may be subject to further proceedings. Consult qualified counsel about your particular situation.