David Anthony DePina v. Jason A. Gibson, PC D/B/A the Gibson Law Firm, Jason A. Gibson, Casey Gibson

Opinion issued April 21, 2026




                                         In The

                                Court of Appeals
                                        For The

                            First District of Texas
                              ————————————
                                NO. 01-24-00316-CV
                             ———————————
                    DAVID ANTHONY DEPINA, Appellant
                                           V.
    JASON A. GIBSON, P.C. D/B/A THE GIBSON LAW FIRM, JASON A.
               GIBSON, AND CASEY GIBSON, Appellees


                    On Appeal from the 190th District Court
                             Harris County, Texas
                       Trial Court Case No. 2023-60937


                           MEMORANDUM OPINION
      This is an appeal from a summary judgment ruling for the defendants in a

legal malpractice case. Before the trial court, the plaintiff, David DePina, alleged

that a law firm and its attorneys1 failed to timely pursue claims for him against a


1
      We refer to the appellees collectively as “the law firm” or “the firm.”
railroad company concerning flood damage to DePina’s property. To prevail on his

legal malpractice claim, DePina must prove that, but for the law firm’s negligence,

he would have obtained a more favorable result in the underlying case. Rogers v.

Zanetti, 518 S.W.3d 394, 404–05 (Tex. 2017).

      The law firm sought summary judgment, arguing that the record showed as a

matter of law that DePina’s claims were already time-barred when he brought them

to the firm—so DePina could not prevail in showing that he would have obtained a

more favorable result but for any alleged negligence. On appeal, the law firm argues

this is the case because, it says, as a matter of law, DePina alleged a permanent

nuisance (as opposed to a temporary one), so limitations had already run. The parties

do not dispute that whether limitations had run depends on whether the alleged

flooding nuisance was permanent or temporary.2

      This appeal thus turns on whether the record shows as a matter of law that the

nuisance DePina asserted—flooding to his property that DePina says is caused by

an unmaintained railroad culvert combined with certain very heavy rain—was

permanent, as opposed to temporary (and thus whether limitations had run).




2
      For limitations purposes, a permanent nuisance claim accrues when injury first
      occurs or is discovered, while a temporary nuisance claim accrues anew upon each
      injury. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004).
                                          2
      Under binding precedent, a nuisance may be considered temporary if, among

other factors, it is sporadic and contingent upon an irregular force such as rain, or if

it is uncertain if any future injury will occur. See Huynh v. Blanchard, 694 S.W.3d

648, 677–78 (Tex. 2024); Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264,

272 (Tex. 2004). A permanent nuisance, by contrast, is one that involves an activity

of such a character and existing under such circumstances that it will be presumed

to continue indefinitely. See Huynh, 694 S.W.3d at 678 & n.35; Schneider, 147

S.W.3d at 272.

      Applying the Texas Supreme Court’s description of a temporary versus

permanent nuisance to this summary judgment record, we conclude that the record

does not show as a matter of law that the alleged nuisance was permanent, and

therefore the law firm did not establish that the statute of limitations expired. We

thus reverse and remand for further proceedings consistent with this opinion. We

express no opinion on any other issue in the underlying case.

                                  BACKGROUND

A.    The law firm agreed to represent DePina for potential property damage
      and flooding claims.

      DePina owns property in Splendora, Texas, consisting of undeveloped land

and a commercial building leased to a school. A railroad runs alongside the property.

Beneath the railroad tracks is a culvert (a drainage tunnel) that allows water from the

property to drain into a nearby ditch.

                                           3
      DePina asserts that the railroad company failed to maintain the culvert and

provide adequate drainage, which caused flooding during some, but not all,

rainstorms. As discussed in greater detail below, it is undisputed that DePina’s

property flooded in March 2017 and at least two times before then. It is also

undisputed that the property flooded during Hurricane Harvey in August 2017, again

soon thereafter, and during Tropical Storm Imelda in September 2019. Unlike the

previous floods, the flooding that occurred during Imelda caused significant water

damage to the building on the property.3

      DePina alleged that the railroad company was responsible for the 2019

flooding and damage to his property; he asserted that the railroad company’s failure

to maintain and clear the culvert prevented proper drainage from his property. He

also believed the railroad company needed to add a second culvert to improve

drainage and prevent future flooding.

      In August 2020, DePina contacted the law firm about pursuing potential

claims against the railroad company for the flooding damage. That month, the law

firm agreed to take the case and sent DePina a contract stating that it would represent

him in pursuing claims for “Property Damage and Flooding.”




3
      According to this record, DePina’s property did not flood between Tropical Storm
      Imelda in 2019 and the filing of the current case in 2023.
                                           4
      What occurred after that is disputed. For purposes of summary judgment, we

accept DePina’s account that, after some initial communication, the law firm stopped

communicating with him and did not return his calls until September 2021, when the

firm sent him a letter stating the firm no longer represented him in this case.

B.    DePina filed this legal malpractice lawsuit against the law firm; the trial
      court granted summary judgment to the law firm.

      DePina filed this malpractice lawsuit against the law firm for negligence and

gross negligence, alleging that the firm failed to timely investigate and file DePina’s

claims against the railroad company within the statute of limitations, or alternatively

that it failed to decline representation within a reasonable time period to allow

DePina to secure new counsel to investigate and pursue the claims against the

railroad company. DePina alleged that he would have secured a settlement or

collectable judgment against the railroad company but for the law firm’s negligence.

      The law firm moved for traditional summary judgment, arguing that DePina

could not establish causation on his malpractice claim as a matter of law because his

underlying flooding claims constituted a permanent nuisance, and the statute of

limitations therefore expired at least one year before DePina ever contacted the firm.

The law firm attached several exhibits, including the deposition testimony of

DePina.

      In response, DePina disputed that the law firm had proven a permanent

nuisance as a matter of law. He argued that a fact issue exists as to causation because,

                                           5
he says, there are genuine issues of material fact regarding whether his underlying

flooding claims constituted a temporary or permanent nuisance. DePina attached his

declaration in support of his opposition.

      After a hearing, the trial court granted the law firm’s motion for summary

judgment and dismissed DePina’s lawsuit. The trial court did not provide a basis for

its ruling. DePina appealed.

                            STANDARD OF REVIEW

      We review de novo a trial court’s order granting summary judgment. Hillis v.

McCall, 602 S.W.3d 436, 439 (Tex. 2020). Under traditional summary judgment

procedure, the movant bears the initial burden of showing that no genuine issue of

material fact exists, and the court should grant a judgment as a matter of law. See id.

at 439–40; TEX. R. CIV. P. 166a(c).4 A defendant-movant may obtain summary

judgment by conclusively negating at least one element of the plaintiff’s cause of

action. See Murphy Expl. & Prod. Co.-USA v. Adams, 560 S.W.3d 105, 108 (Tex.

2018); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016). If a defendant

produces evidence demonstrating summary judgment is proper, the burden shifts to

the plaintiff to present evidence creating a fact issue. Stanfield, 494 S.W.3d. at 97.


4
      The Texas Supreme Court recently amended Texas Rule of Civil Procedure 166a.
      See Order, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). The Court specified that
      “[t]he amendments apply only to a motion for summary judgment filed on or after
      March 1, 2026.” Id. The law firm filed its motion for summary judgment before that
      date, and we apply the version of Rule 166a in effect at the time of the filing.
                                            6
      In evaluating whether a fact issue precludes summary judgment, a court takes

all evidence favorable to the nonmovant as true and indulges every reasonable

inference in the nonmovant’s favor. Id.

      When a trial court’s order granting summary judgment does not specify the

grounds on which its order is based, the appellant must negate each ground upon

which the judgment could have been based. Rosetta Res. Operating, LP v. Martin,

645 S.W.3d 212, 226 (Tex. 2022). Otherwise, the summary judgment may be

affirmed on any one meritorious ground alleged. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013).5

                                    DISCUSSION

      Applying Texas law to this summary judgment record—which we construe in

the light most favorable to DePina—we agree with DePina that the trial court erred

in granting summary judgment to the law firm. We therefore reverse.



5
      In addition to the nuisance/limitations argument made by the law firm discussed
      herein, the law firm also argued on summary judgment that DePina was
      impermissibly attempting to relitigate the same claims adjudicated in an earlier State
      Bar proceeding (in which the law firm prevailed). DePina challenged that issue, too,
      on appeal, and the law firm abandoned its argument. Because the law firm has
      abandoned this argument on appeal, we need not address it. See, e.g., Mitchell v.
      Mitchell, 445 S.W.3d 790, 798 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In
      any event, we note that the disciplinary proceedings would not have a preclusive
      effect on the subsequent civil litigation. See, e.g., Charles v. Diggs, No. 14-19-
      00725-CV, 2020 WL 6326422, at *2 (Tex. App.—Houston [14th Dist.] Oct. 29,
      2020, pet. denied) (rejecting lawyer’s res judicata defense; Texas Rules of
      Disciplinary Procedure prohibit res judicata or collateral estoppel effects from
      disciplinary actions).
                                            7
A.       Causation is an element of a legal malpractice claim—and that is the
         element in dispute here.

         Legal malpractice claims are based on negligence principles and require the

client to establish: (1) the lawyer owed a duty of care to the client; (2) the lawyer

breached that duty; and (3) the lawyer’s breach proximately caused damage to the

client. Rogers, 518 S.W.3d at 400.

         The parties here focus on causation. They dispute whether the law firm

negated the causation element of DePina’s malpractice cause of action. See

Stanfield, 494 S.W.3d at 96.

         The law firm argues it was entitled to summary judgment because it

conclusively negated causation. The law firm says it did so by showing that the

statute of limitations on DePina’s underlying claims expired as a matter of law before

DePina retained the firm. So, the law firm argues, any alleged negligence on its part

could not possibly have harmed him.

         Thus, the causation issue turns on whether the law firm proved as a matter of

law that the underlying nuisance was permanent (and thus whether the law firm

negated causation by establishing that limitations expired before DePina retained the

firm).




                                           8
B.    The limitations period for a nuisance action depends on whether the
      nuisance is temporary or permanent.

      A nuisance is a condition that substantially interferes with the use and

enjoyment of land by causing unreasonable discomfort or annoyance to persons of

ordinary sensibilities. Schneider, 147 S.W.3d at 269. For these purposes, the parties

do not dispute whether this record reflects a nuisance. The parties also agree that a

two-year statute of limitations applies to DePina’s underlying nuisance claim. See

TEX. CIV. PRAC. & REM. CODE § 16.003(a); Schneider, 147 S.W.3d at 270.

      The question of when a nuisance claim accrues for statute of limitations

purposes depends on whether the alleged nuisance is permanent or temporary.

Schneider, 147 S.W.3d at 270. “A permanent nuisance claim accrues when injury

first occurs or is discovered; a temporary nuisance claim accrues anew upon each

injury.” Id. (emphasis in original).

      As applied here, this matters. If the nuisance alleged was permanent, then

limitations had run when DePina first approached the law firm. If the nuisance was

temporary, it had not.




                                         9
C.     The trial court erred in granting summary judgment: the summary
       judgment record does not show as a matter of law that the nuisance
       alleged was permanent (and thus that limitations had run when DePina
       approached the law firm).

       The dispositive question is: Does the record show as a matter of law that the

alleged nuisance at issue was permanent? On this record, applying Texas law, it does

not.

       Recently, the Texas Supreme Court reiterated that a nuisance may be

considered temporary:

       (1) if it is uncertain if any future injury will occur,

       (2) if future injury is liable to occur only at long intervals,

       (3) if the nuisance is occasional, intermittent or recurrent, or

       (4) if it is sporadic and contingent upon some irregular force such as
       rain.
Huynh, 694 S.W.3d at 677–78 (cleaned up) (quoting Schneider, 147 S.W.3d at 272).

       As the Court stated, “a nuisance that is occasional, recurrent, or affected by

irregular weather forces in a manner that makes future damages difficult to quantify

with reasonable certainty can be classified as temporary even though it is also

imminent or likely to recur.” Id. at 678 (footnote omitted). Under Texas law, “a

nuisance as to which any future impact remains speculative at the time of trial must

be deemed ‘temporary.’” Schneider, 147 S.W.3d at 280.




                                            10
      By contrast, a permanent nuisance is one that involves an activity of such a

character and existing under such circumstances that it will be presumed to continue

indefinitely. See Huynh, 694 S.W.3d at 678 n.35; Schneider, 147 S.W.3d at 272. A

“nuisance should be deemed permanent if it is sufficiently constant or regular (no

matter how long between occurrences) that future impact can be reasonably

evaluated.” Schneider, 147 S.W.3d at 281.

      “[A] permanent nuisance may be established by showing that either the

plaintiff’s injuries or the defendant’s operations are permanent.” Id. at 283. When

the structure or source allegedly causing the nuisance is permanent, a presumption

is raised that the nuisance is also permanent. See Huynh, 694 S.W.3d at 678 & n.35.

But the presumption can be “rebutted by evidence that a defendant’s noxious

operations cause injury only under circumstances so rare that, even when they occur,

it remains uncertain whether or to what degree they may ever occur again.” Id. at

678 n.35 (quoting Schneider, 147 S.W.3d at 283). As Schneider explained, “Texas

law has long recognized there may be a discontinuity between source and injury, as

when injury occurs only after a heavy rain in regions where that is a rare

commodity.” Schneider, 147 S.W.3d at 283.

      Texas law also explains that a jury should decide factual questions underlying

the temporary or permanent nature of a nuisance to the extent the evidence presents

“a dispute regarding what interference has occurred or whether it is likely to


                                        11
continue.” Id. at 281; see also Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.),

L.P., 449 S.W.3d 474, 480–81 (Tex. 2014) (same). As the Texas Supreme Court has

stated, “questions regarding the facts that underlie the temporary-versus-permanent

distinction must be resolved by the jury upon proper request.” Huynh, 694 S.W.3d

at 676 (cleaned up) (quoting Gilbert Wheeler, 449 S.W.3d at 481). Along those lines,

the Texas Supreme Court has explained that jurors settle “disputes as to whether

similar conditions are reasonably certain to continue in the future.” Schneider, 147

S.W.3d at 281; see also Huynh, 694 S.W.3d at 676. And “material factual disputes

about frequency, duration, and extent of nuisance conditions” are questions for the

jury. Schneider, 147 S.W.3d. at 274–75; see also Huynh, 694 S.W.3d at 677.

      Applying that law to this record (construed in the light most favorable to

DePina, as the law instructs), we must reverse the grant of summary judgment in

favor of the law firm: this record does not show as a matter of law a permanent

nuisance. See Schneider, 147 S.W.3d at 272–75; see also Huynh, 694 S.W.3d at 677–

78.

      DePina argues that this record does not establish a permanent nuisance, and

he asserts that questions remain for the jury as to the nuisance he alleges. He

contends that the flooding he complains of was contingent on both the culvert being

unmaintained and also certain very heavy rain. And he argues that fact questions




                                         12
exist as to the nature of the interference and whether and to what extent the

interference is likely to continue.

      DePina testified to the following flooding history, occurring over a period of

almost 20 years:

      • From the time DePina purchased the property (between 2002 and 2004)
        until March 2017, DePina testified that the property flooded “maybe two
        times.”6

      • March 2017 – The property flooded.

      • August 2017 – The property flooded during Hurricane Harvey.

      • After August 2017 – A rainstorm following Hurricane Harvey flooded the
        property.

      • September 2019 – The property flooded during Tropical Storm Imelda,
        damaging the building.

According to DePina, his property had not flooded since Tropical Storm Imelda, in

2019, through the time of his filing of the current lawsuit in 2023.

      DePina testified that his property does not flood with every hard rain.7 Instead,

under his testimony, the property flooded only in certain rainstorms and when “the

[culvert] isn’t doing its job.”


6
      DePina did not identify specific years or dates for the two floods.
7
      As DePina stated:
           Q. And as a result of that, whenever there is a hard rain over your property,
           the property floods?
           A. That’s not correct.

      (Emphasis added.)
                                           13
      Additionally, in his declaration, DePina attested that the flooding is

“uncertain,” “unpredictable,” and “intermittent,” occurring only “when there is a

very heavy rainstorm, like Hurricane Harvey and Tropical Storm Imelda,” and

depending on the “condition of the culverts” at the time of the heavy rainstorm.8

      DePina further attested that “when the culverts are cleaned out and properly

maintained by [the railroad company], the Property does not flood.”9




8
      In the trial court, the law firm objected and moved to strike DePina’s declaration
      under the “sham affidavit rule,” arguing that it contradicted DePina’s earlier
      deposition testimony. The trial court never ruled on the objection. In its appellate
      briefing, the law firm similarly argues that we should strike or disregard DePina’s
      declaration as a “sham.” But under controlling precedent, as the law firm
      acknowledged at argument, this complaint is not preserved for our review. Our
      Court previously held that: “Absent a timely objection and a ruling from the trial
      court on the objection, however, a complaint that a summary-judgment affidavit is
      a sham is waived for purposes of appellate review.” Lee v. Galleria Loop Note
      Holder LLC, No. 01-22-00160-CV, 2023 WL 5436434, at *8 (Tex. App.—Houston
      [1st Dist.] Aug. 24, 2023, no pet.); see also TEX. R. APP. P. 33.1(a); Seim v. Allstate
      Tex. Lloyds, 551 S.W.3d 161, 164, 166 (Tex. 2018). DePina’s declaration remains
      as competent summary judgment evidence. See Seim, 551 S.W.3d at 164; Lee, 2023
      WL 5436434, at *8.
9
      The law firm argues this statement (which DePina begins with the word “thus”) is
      conclusory. Texas courts have rejected arguments that statements were conclusory
      when the statements were based on personal knowledge and asserted facts. See
      Chagoya v. Vilchis, No. 01-22-00864-CV, 2024 WL 3417049, at *6 (Tex. App.—
      Houston [1st Dist.] July 16, 2024, no pet.) (mem. op. on reh’g) (treating declarant’s
      descriptions of specific events—payments, loan amounts, nonperformance, and
      nonreturn of property—as “assertions of fact, not unsupported conclusions or
      inferences”); see also Eberstein v. Hunter, 260 S.W.3d 626, 629 (Tex. App.—Dallas
      2008, no pet.) (affidavit calculating amounts of unpaid alimony payments and
      stating aggregate amount was not conclusory because statements recited facts based
      on personal knowledge). In any event, this sentence is also only one piece of the
      summary-judgment record at issue.
                                            14
      Viewing the evidence in the light most favorable to DePina and looking to the

Texas Supreme Court’s definition of a temporary versus permanent nuisance, we

cannot conclude that this record shows a permanent nuisance as a matter of law. The

record raises a genuine issue of material fact about whether and to what extent this

nuisance is likely to continue. This record also presents questions about whether the

nuisance is “sporadic and contingent upon some irregular force such as rain.” Huynh,

694 S.W.3d at 677–78 (quoting Schneider, 147 S.W.3d at 272). Further, the fact that

flooding occurred previously does not necessarily render the alleged nuisance

permanent as a matter of law: indeed, a nuisance that has recurred can still potentially

qualify as temporary under certain conditions, including if it is “affected by irregular

weather forces in a manner that makes future damages difficult to quantify with

reasonable certainty.” Id. at 678 (footnote omitted).

      The parties dispute whether a presumption of permanence applies. See id. at

678 n.35; Schneider, 147 S.W.3d at 283. The law firm argues that the nuisance

should be presumed permanent because the railroad track and culvert are permanent

structures (they are), and because, the firm argues, there is no evidence the culvert

has ever been cleared or cleaned.10 DePina, on the other hand, takes the position

that—unlike, for instance, a nuisance caused by an ever-present, permanent wall—


10
      The law firm acknowledges that there is no evidence either way on this point; they
      do not take the position that evidence affirmatively establishes that the culvert has
      never been cleared.
                                           15
the alleged nuisance here is contingent on the (in his view, nonpermanent) condition

of the culvert and the extent to which it is maintained (as well as on certain heavy

rain; he asserts that the nuisance is contingent on both the culvert’s status and certain

heavy rain). DePina testified that the culvert drains into a ditch, and that it is the

“ditches [that] had never been cleaned out.” He also averred below that “when the

culverts are cleaned out and properly maintained by [the railroad company], the

Property does not flood.” DePina emphasizes that all reasonable inferences must go

his way at this stage. See Stanfield, 494 S.W.3d at 97 (on summary judgment review,

we must indulge every reasonable inference in the nonmovant’s favor).

      We need not resolve that dispute. Even assuming a presumption of

permanence here, the law firm was not entitled to summary judgment because there

are issues of material fact as to whether DePina has rebutted that presumption. See

Huynh, 694 S.W.3d at 678 & n.35; Schneider, 147 S.W.3d at 283. On this record,

there is a genuine dispute over whether the railroad company’s alleged conduct

caused DePina’s property to flood “only under circumstances so rare that, even when

they occur, it remains uncertain whether or to what degree they may ever occur

again.” Schneider, 147 S.W.3d at 281, 283 (jury decides factual disputes “regarding

what interference has occurred or whether it is likely to continue”); see also Huynh,

694 S.W.3d at 676 (“[Q]uestions regarding the facts that underlie the




                                           16
temporary-versus-permanent distinction must be resolved by the jury upon proper

request.” (emphasis in original) (quoting Gilbert Wheeler, 449 S.W.3d at 481)).

      Other courts have recognized that similar facts preclude summary judgment.

See, e.g., Scott v. S2S Domain Waco Assocs., LLC, No. 10-20-00133-CV, 2021 WL

5639086, at *9 (Tex. App.—Waco Dec. 1, 2021, pet. denied) (summary judgment

on limitations improper because “the flooding on the [plaintiffs’] property is caused

by intermittent rainfall and future injury cannot be estimated with reasonable

certainty”); Sullivan v. Brokers Logistics, Ltd., 357 S.W.3d 833, 838–41 (Tex.

App.—El Paso 2012, pet. denied) (summary judgment on limitations improper in a

flooding-related nuisance case where—although there had been silt buildup for more

than a decade due to improper drainage—historic flooding that precipitated the

plaintiff’s lawsuit raised fact issue as to whether the nuisance was temporary or

permanent); see also Pulaski v. Republic of India, 212 F. Supp. 2d 653, 656 (S.D.

Tex. 2002) (“Although rain is a persistent condition in Houston, the nuisance

suffered by [plaintiffs] is temporary because it is contingent on sporadic rain.”).

      Two of our sister courts (one recently) examined instances when a flooding

nuisance was dependent on rain and also on a permanent structure, bringing a

presumption of permanence. See JLMH Invs., LLC v. Fam. Dollar Stores of Tex.,

LLC, 716 S.W.3d 770, 778–80 (Tex. App.—Fort Worth 2024, pet. granted);

Yalamanchili v. Mousa, 316 S.W.3d 33, 37–38 (Tex. App.—Houston [14th Dist.]


                                          17
2010, pet. denied). In both cases, those courts found the flooding nuisances at issue

to be permanent as a matter of law when they happened with “every rain” (or every

heavy rain)—and thus they were not “contingent” and uncertain to occur again. See

JLMH, 716 S.W.3d at 779 (undisputed evidence established that plaintiff’s property

flooded “every time it rained”); Yalamanchili, 316 S.W.3d at 36–38 (plaintiff’s

property flooded “with every rain of any magnitude”).11

      But, as the JLMH court explained, the result might have been different there

if the flooding only occurred “after abnormally and unexpectedly heavy rains”; the

court noted that such “occasional or sporadic” instances of rain might constitute a

temporary nuisance. JLMH, 716 S.W.3d at 779.

      Applying the principles from those cases supports reversal of the summary

judgment here. As explained, the record (construed in the light most favorable to

DePina, the nonmovant) includes evidence that flooding happened here during some

major storms—but not every major storm—and certainly not with every rain or

every major rain. Moreover, here, DePina testified that flooding also depended on

the “condition of the culvert” in conjunction with certain very heavy rain. In

approximately 20 years, DePina says that six flooding events have occurred (and

none since 2019). On this record, such infrequent incidents (particularly in the


11
      See also Mitchell v. Timmerman, No. 03-08-00320-CV, 2008 WL 5423268, at *6
      (Tex. App.—Austin Dec. 31, 2008, no pet.) (flooding occurring “every time there
      is a significant rainfall” was permanent nuisance as a matter of law).
                                         18
greater Houston area, where heavy rain is commonplace) could potentially be

characterized as “occasional” or “sporadic” and unlikely to occur again.

      Under Texas law, “a nuisance may be considered temporary (1) if it is

uncertain if any future injury will occur, (2) if future injury is liable to occur only at

long intervals, (3) if the nuisance is occasional, intermittent or recurrent, or (4) if it

is sporadic and contingent upon some irregular force such as rain.” Huynh, 694

S.W.3d at 677–78 (cleaned up) (quoting Schneider, 147 S.W.3d at 272); see also

Schneider, 147 S.W.3d at 280 (“[A] nuisance as to which any future impact remains

speculative at the time of trial must be deemed ‘temporary.’”).

      This record does not show a permanent nuisance as a matter of law, and fact

questions preclude summary judgment.

                                          ***

      The accrual of the statute of limitations cannot be determined as a matter of

law if reasonable minds could differ about the conclusion to be drawn from the facts.

See Childs v. Haussecker, 974 S.W.2d 31, 44–46 (Tex. 1998) (in legal malpractice

case, lawyer was not entitled to summary judgment on limitations grounds because

there was an issue of fact on when client’s underlying claim accrued). That is the

case here. We thus reverse and remand for further proceedings.




                                           19
                                CONCLUSION

      The trial court erred in granting summary judgment for the law firm. We thus

reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.




                                            Jennifer Caughey
                                            Justice

Panel consists of Justices Guerra, Caughey, and Dokupil.




                                       20