Friberg-Cooper Water Supply v. Elledge

• Decision Date: 22 June 2006
• Docket Number: No. 2-05-203-CV.,2-05-203-CV.
• Citation: 197 S.W.3d 826
• Parties: FRIBERG-COOPER WATER SUPPLY CORPORATION, Appellant, v. Bobby ELLEDGE d/b/a Elledge Construction Company and/or Elledge Construction Company, Appellees.
• Court: Texas Court of Appeals

197 S.W.3d 826

FRIBERG-COOPER WATER SUPPLY CORPORATION, Appellant, v. Bobby ELLEDGE d/b/a Elledge Construction Company and/or Elledge Construction Company, Appellees.

No. 2-05-203-CV.

Court of Appeals of Texas, Fort Worth.

June 22, 2006.

James A. Rasmussen, Wichita Falls, for Appellant.

Morrison & Shelton and Lonny D. Morrison, Wichita Falls, for Appellee.

Panel B: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

ANNE GARDNER, Justice.

The issue presented is what statute of limitations governs a claim for unjust enrichment. Appellant Friberg-Cooper Water Supply Corporation is a non-profit quasi-governmental agency that furnishes water to its members in rural areas.¹ Friberg-Cooper sued Appellee Bobby Elledge, alleging that Friberg-Cooper paid invoices submitted by Elledge for insurance and equipment in connection with a contract for improvements. Friberg-Cooper contended that the contract was actually with Wichita County and that the terms of the contract provided that Elledge would supply his own insurance and equipment. Friberg-Cooper alleged that it was entitled to "restitution" because Elledge would be "unjustly enriched" if he were allowed to retain the monies or the benefit of the payments.

Friberg-Cooper filed its suit within four years but more than two years after the payments. The trial court granted a traditional summary judgment in favor of Elledge on limitations grounds, applying the two-year statute of limitations contained in Section 16.003 of the Texas Civil Practice and Remedies Code.² Friberg-Cooper raises one issue: it contends that the trial court erred in applying the two-year statute of limitations because the four-year statute applies to a claim of unjust enrichment.

Friberg-Cooper acknowledges that, traditionally, the two-year statute of limitations has governed claims for unjust enrichment. However, Friberg-Cooper relies upon more recent cases, most significantly a decision by the El Paso Court of Appeals in Amoco Production Co. v. Smith, holding that the four-year statute of limitations applies to unjust enrichment claims.³ These holdings followed the 1979 amendments to the civil practice and remedies code which eliminated the distinction between debts evidenced by a contract in writing and other debts.⁴

Before 1979, two statutes of limitations applied to debts. The two-year statute, former article 5526 which is now codified in its amended form as section 16.003 of the civil practice and remedies code, applied to actions for debts that were "not evidenced by a contract in writing."⁵ The four-year statute, former article 5527 which is now codified in its amended form as section 16.004 of the civil practice and remedies code, applied to actions for debts that were "evidenced by or founded upon any contract in writing."⁶ However, in 1979, the Legislature amended the statutes to eliminate the distinction between debts evidenced by a writing and other debts, listing all actions for debt under the four-year statute.⁷

Some courts of appeals have nevertheless continued to apply the two-year statute of limitations to unjust enrichment claims after the 1979 amendments.⁸ In particular, Elledge points to language of the Supreme Court of Texas in HECI Exploration Co. v. Neel, that states: "The court of appeals correctly observed, and the Neels concede, that absent application of the discovery rule, ... a two year statute would bar the claim[] for unjust enrichment...."⁹

Stopping short of urging that the language constitutes binding precedent, Elledge suggests that the opinion in HECI reflects, "at a minimum," that the plaintiffs, the court of appeals, and the supreme court all considered that the two-year statute governed claims for unjust enrichment. We agree with Friberg-Cooper's characterization of the language as dictum. Both the two-year and the four-year statutes had expired when suit in HECI was filed. Therefore, it was unnecessary to determine which statute applied. Moreover, the court disposed of the unjust enrichment claim on a different ground, holding that HECI had neither profited nor benefitted at the expense of the royalty owners.¹⁰

In a case that followed HECI, Wagner & Brown, Ltd. v. Horwood, the supreme court acknowledged that it had "noted" in HECI that the two-year statute applied to claims for unjust enrichment.¹¹ The supreme court did not reach or decide the issue of which statute applied; instead, it held that Wagner & Brown, as the appellee in the court of appeals, waived any statute of limitations claim because it failed to file a separate notice of appeal.¹² The court's use of the term "noted" to describe its previous statement in HECI reinforces our conclusion that the court did not consider its statement in HECI—regarding the applicable statute of limitations-as even being judicial dictum.¹³

As Friberg-Cooper points out, the only case cited by the supreme court in HECI is the Cherokee Water case.¹⁴ Those courts of appeals that have held that the two-year statute still applies to a claim for unjust enrichment after the 1979 amendments have also merely cited either Cherokee Water or HECI, which in turn cited Cherokee Water; and the courts cited those cases without analysis or discussion.¹⁵ Furthermore, Cherokee Water itself only cited to cases that held that the pre-1979 version of the two-year statute of limitations applied to actions for debts not evidenced by a writing, such as suits for money had and received or suits for unjust enrichment.¹⁶ Neither the court in Cherokee Water, nor any of the subsequent cases that held that the two-year statute continues to apply to unjust enrichment, addressed the 1979 amendments. Finally, the statement that the two-year statute applied was not even necessary to the opinion in Cherokee Water because the cause of action in that case, as in HECI, had accrued more than four years before the suit was filed.¹⁷

The El Paso Court of Appeals, in Amoco Production Co., tracked the history of unjust enrichment as arising out of "assumpsit" and as constituting a claim for "debt"; the court concluded that unjust enrichment is now governed by the four-year statute of limitations for debts.¹⁸ In reaching its conclusion, the Amoco Production Co. court followed the same approach applied by the supreme court in Williams v. Khalaf, in which the supreme court held that, after the 1979 amendments, a cause of action for fraud is an action for "debt" governed by the four-year statute of limitations.¹⁹

In Williams, the supreme court observed that the modern action for fraud "developed as a quasi-contractual cause of action through assumpsit as a hybrid of the common law actions for debt and account."²⁰ The court characterized this right of action for payment of money based on fraudulent representation as an example of "the equitable principle which lies at the foundation of the great bulk of quasi-contracts, namely, that one person shall not unjustly enrich himself at the expense of another."²¹ In Williams, the court acknowledged that it previously had held that the two-year statute set forth in former article 5526 applied to an action for fraud and deceit.²² However, as the court pointed out, the 1979 amendments to both the two- and the four-year statutes eliminated the distinction between debts evidenced by a writing and all other debts: the statute listed all actions for "debt" under the four-year statute.²³ Classifying fraud as a species of "debt" for limitations purposes, the court concluded that section 16.004, the four-year statute of limitations for debt, now applies to a cause of action for fraud; and, that section 16.003 "no longer has the classification we have held to include fraud."²⁴

Similarly, the El Paso Court of Appeals in Amoco Production Co. traced the development of unjust enrichment for limitations purposes. The court first determined that a claim for money had and received "belongs conceptually to the doctrine of unjust enrichment."²⁵ Second, the court noted that the term "unjust enrichment" characterizes the result of a party's failure to make restitution for benefits received under circumstances that give rise to a quasi-contractual obligation to return those benefits.²⁶ Third, the court observed that the law of restitution for unjust enrichment developed from assumpsit²⁷: "Money had and received" was a common count in general assumpsit in which recovery was based on the law's presumption of a promise of compensation if one receiving another's money would thereby be unjustly enriched.²⁸ Such an action is quasi-contractual because it involves an implied promise that leads to a claim of debt; thus, the implied contract action for money had and received is an action "for debt not evidenced by a writing."²⁹

Having traced the history of unjust enrichment back to the action for assumpsit and having determined that unjust enrichment constitutes a claim for "debt," the El Paso court concluded that unjust enrichment is now governed by the four-year statute of limitations for all actions for "debt."³⁰ We agree with our sister court that, because the 1979 amendments eliminated the distinction between debts not evidenced by a writing and other debts, and thereby made all actions for debt subject to the four-year statute of limitations, an action seeking restitution for unjust enrichment is an action for "debt" now governed by the four-year statute.³¹

Elledge contends that the El Paso court's decision in Amoco Production Co., as well as our own decision in Vickory, which has the same effect,³² are distinguishable from the current case because Amoco Production Co. and Vickory involved claims for money had and received, where money was mistakenly paid between parties having an existing debtor-creditor relationship, and where the defendants acknowledged that they were not entitled to retain the benefits received. Elledge distinguishes the present suit claiming that it is a general claim for unjust enrichment, similar to ...