Wednesday, February 24, 2010

SoL: No tolling of limitations for each day spent on trip outside Texas


In an opinion by retired Justice Mirabal, sitting by assignment, the 14th Court holds that under Texas Supreme Court precedent, a defendant's brief trips to places outside of Texas do not toll the statute of limitations for the respective number of days. The defendant remained a resident of Texas amenable to service. The car wreck suit, filed more than two years after the accident, was thus untimely and subject to dismissal on limitations grounds upon motion for summary judgment.

The  limitations clock does not stop for you trip

Zavadil v. Safeco Ins. Co. of Illinois (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Mirabal) (tolling of limitations based on defendant's absence from state, no SoL tolling based on brief absences from Texas)


In this negligence suit arising from a motor vehicle accident between two individuals, both of whom resided
in Texas at all relevant times, it is undisputed that suit was filed more than two years after the cause of action
arose. The dispositive question in this appeal is whether the limitations period was tolled during each of the
approximately fourteen days during the two-year limitations period that the resident defendant spent outside
Texas. Because we conclude that these travels do not constitute “absence from the state” as this language from the tolling statute[1] has been interpreted by the Texas Supreme Court, we reverse the trial court’s denial of appellant’s summary-judgment motion and its grant of appellee’s cross-motion, and we render judgment dismissing the suit with prejudice.

* * *

The dispositive issue in this appeal is whether Texas Civil Practice and Remedies Code section 16.063 tolls the statute of limitations against a Texas resident for each day that the resident is beyond our state’s borders. Section 16.063 provides that “[t]he absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence.” Under recent Texas Supreme Court cases, one who is subject to personal jurisdiction in Texas courts, and amenable to service of process, is not “absent” from the state for the purposes of section 16.063.

A. Kerlin v. Sauceda

In Kerlin, the Texas Supreme Court was asked to construe the tolling statute, section 16.063. See Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008). In Kerlin, (1) the defendant did not reside in Texas, either at the time the cause of action arose or at the time suit was filed; (2) a jury found that Kerlin was not physically present in Texas when the cause of action arose; and (3) citation was pursued through the Secretary of State pursuant to the Texas longarm statute. See id. at 922–24. The Texas Supreme Court stated:

[I]f a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction . . . then we can discern no reason why a nonresident’s ‘presence’ in this state would not be established for purposes of the tolling statute.

Id. at 927. The court held that “the statute of limitations was not tolled because, under the general longarm statute, Kerlin was present in the state.” Id. at 928.

B. Ashley v. Hawkins

The parties in Ashley were Texas residents when they were involved in an automobile collision, and the driver of one of the vehicles subsequently moved to another state. Ashley v. Hawkins, 293 S.W.3d 175, 177 (Tex. 2009). The Ashley plaintiff served the defendant under the longarm statute; thus, the Texas Supreme Court was squarely presented with the question of “whether section 16.063 of the Texas Civil Practice and Remedies Code tolls the limitations period when a defendant leaves Texas following a motor vehicle collision, but is otherwise amenable to out-of-state service.” See id. It concluded that “a defendant is ‘present’ in Texas, for purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has ‘contacts with the state sufficient to afford personal jurisdiction.’” Id. at 179. The court held that section 16.063 did not toll the limitations period. Id.

The holdings in Kerlin and Ashley apply with even greater force in this case, where the defendant has never ceased to be a Texas resident since the cause of action accrued. Zavadil’s brief intermittent excursions outside of the territorial boundaries of Texas did not affect the ability of state courts to exercise personal jurisdiction over her, for it is axiomatic that “residence in a state is a valid basis for the exercise of in personam jurisdiction.” J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex. App.—Fort Worth 1985, writ ref’d n.r.e.) (citing Bulova Watch Co. v. Steele, 194 F.2d 567, 571 (5th Cir.), aff’d, 344 U.S. 280, 73 S. Ct. 252, 97 L. Ed. 319 (1952)). Moreover, it is undisputed that she was at all times amenable to service. See also Tex. R. Civ. P. 106, 108 (pursuant to these rules, it is not necessary that a Texas resident be personally served within the state). Thus, under the reasoning of Kerlin and Ashley, Zavadil has not been “absent” from Texas for the purposes of section 16.063, and therefore section 16.063 did not toll the limitations period.

V. Conclusion

In accordance with Kerlin and Ashley, we conclude that Zavadil has not been “absent” from the state for the purposes of Texas Civil Practice and Remedies Code section 16.063. We therefore sustain Zavadil’s first, second, and third issues, hold that Safeco’s suit is time-barred, reverse the trial court’s denial of Zavadil’s motion for summary judgment and its grant of Safeco’s motion for partial summary judgment, and render judgment dismissing Safeco’s suit with prejudice. In light of our disposition of these issues, we do not reach Zavadil’s two remaining issues.

/s/ Margaret Garner Mirabal

Senior Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-09-00568-CV Jessica Zavadil v. Safeco Insurance Company of Illinois [pdf version]
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
R. Jack Cagle

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