Garrett, et al v. Cherokee Water Co

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 21, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 04-40177
Summary Calendar
ESTATE OF HOWARD GARRETT; ET AL.,
Plaintiffs,
MARY LEE GARRETT BEAVERS; NESBY GARRETT; LORNE GARRETT CROWE;
IRIS JEAN GARRETT GODFREY; ORMA JEAN GARRETT SHACKLEFORD; DOROTHY
MARIE GARRETT GOODEN; DORIS LEE GARRETT SMITH
Plaintiffs-Appellants,
versus
CHEROKEE WATER COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(6:02-CV-142)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiffs, the children of Harvest and Arlee Garrett (both
deceased), claim that, in 1949, Cherokee Water Company (CWC)
unlawfully took property belonging to their parents. Plaintiffs
bring their claims under: 42 U.S.C. § 1983 (claimed taking
violative of Fifth, through Fourteenth, Amendment); 42 U.S.C. §§

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1982 and 1985; and Texas conspiracy, trespass, conversion and fraud
laws.
The district court granted summary judgment for CWC, holding
Plaintiffs’ claims are time-barred. A summary judgment is reviewed
de novo, applying the same standard as the district court. Urbano
v. Continental Airlines, 138 F.3d 204, 205 (5th Cir. 1998). Such
judgment is appropriate when, viewing the evidence in the light
most favorable to the nonmovant, the record shows no material fact
issues exist and the movant is entitled to judgment as a matter of
law. Id.
The statute of limitations on Plaintiffs’ federal claims is
governed by Texas law, but federal law governs the accrual of these
claims. Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 518
(5th Cir. 1998). A federal claim accrues “when the plaintiff knows
or has reason to know of the injury which is the basis of the
action”. Id. Plaintiffs’ §§ 1982, 1983, and 1985 claims are
governed by the general Texas two-year personal injury limitations
period. See Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2001);
Burge v. Parish of St. Tammany, 996 F.2d 786, 787 (5th Cir. 1993).
For the claims under Texas law, a claim accrues when “a
wrongful act causes some legal injury, even if the fact of the
injury is not discovered until later, and even if all resulting
damages have not yet occurred”. S.V. v. R.V., 933 S.W.2d 1, 4
(Tex. 1996). The limitations period for Plaintiffs’ state law

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claims, except for fraud and inverse condemnation, is two years,
TEX. CIV. PRAC. & REM. CODE § 16.003(a); for fraud claims, four years,
TEX. CIV. PRAC. & REM. CODE § 16.004(a); and for inverse condemnation,
ten years, Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625,
631 (Tex. App. - Houston 1997, pet. denied).
Viewing the evidence in the light most favorable to
Plaintiffs, and essentially for the reasons stated by the district
court, we hold Plaintiffs’ claims accrued in 1949, when Harvest
Garrett became aware of the taking of the land in issue. Although
Plaintiffs contend the limitations periods on the state and federal
claims were tolled due to CWC’s fraudulent concealment, e.g., State
of Texas v. Allen Constr. Co., 851 F.2d 1526 (5th Cir. 1988); Shah
v. Moss, 67 S.W.3d 836 (Tex. 2001), Garrett’s awareness, inter
alia, in 1949 that CWC acquired the disputed land and constructed
the Lake Cherokee spillway and dam establishes that these claims
reasonably could have been discovered timely through the exercise
of due diligence.
Plaintiffs also challenge the district court’s not granting
them additional discovery before granting summary judgment. We
review only for abuse of discretion the decision to preclude
further discovery prior to granting summary judgment. E.g., Exxon
Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d 1474, 1487
(5th Cir. 1995). The denial of additional discovery was not an
abuse of discretion because the discovery requested was not likely

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to produce the facts needed by Plaintiffs to withstand summary
judgment. See Paul Kadair, Inc. v. Sony Corp. of America, 694
F.2d 1017, 1029-30 (5th Cir. 1983).
AFFIRMED

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