Tuesday, April 17, 2012

Tex. CPRC §16.064 - Sixty-day extension of limitations bar when suit originally filed in court without jurisdiction

Houston Court of Appeals says 60-day window to re-file dismissed action in proper court available when dismissed in original court for want of (personal) jurisdiction even if statute of repose  (rather than statute of limitations) had since expired, but first suit had been timely filed. See Tex. Civ. Prac. & Rem. Code Ann. § 16.064. One justice on the three-member panel dissented.

The clock just keeps ticking ...

Whittington v. Nathan
No. 01-10-00971-CV (Tex.App. – Houston [1st Dist.] April 12, 2012, no pet. h.)


Appellant, Stephen Whittington, challenges the trial court’s rendition of summary judgment in favor of appellee, Marc H. Nathan, in Whittington’s suit against Nathan for violations of the Uniform Fraudulent Transfer Act (“UFTA”).[1]  In his sole issue, Whittington contends that the trial court erred in granting Nathan summary judgment on the ground that Whittington had not timely filed his UFTA action under its four-year statute of repose.[2]

We reverse and remand.


          In June 2006, Whittington obtained a $3.2 million judgment against his former business associate, Evan Baergen, in a Nevada court.  Unable to collect on his judgment, Whittington, in May 2008, brought his UFTA action against Baergen and Nathan in a Nevada court, seeking to recover assets that Baergen had allegedly fraudulently transferred to Nathan.  It is undisputed that Whittington asserted his UFTA claims in Nevada within UFTA’s four-year statute of repose.  However, the Nevada court ultimately dismissed Whittington’s UFTA action for lack of personal jurisdiction.  And Whittington, within sixty days of this dismissal, filed the instant suit against Nathan for violations of UFTA based upon the same allegations that he had made in the Nevada action.  

Nathan sought summary judgment on the ground that a cause of action under UFTA is extinguished unless it is brought within the prescribed period—here, four years.[3]   In his response, Whittington argued that he had timely brought the instant UFTA action because he had originally filed the action in Nevada before the expiration of the four-year statute of repose and he had, in accord with the applicable “savings statute” in the Texas Civil Practice and Remedies Code,[4] filed the UFTA action in Texas within 60 days of the Nevada court’s dismissal.

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of proving that he is entitled to judgment as a matter of law and there is no genuine issue of material fact.  Tex. R.  Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  When a defendant moves for summary judgment, he must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff’s cause of action.  Cathey, 900 S.W.2d at 341.  When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).  Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in his favor.  Id. at 549.

We review the trial court’s interpretation of a statute de novo.  See Johnson v. City of Forth Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent.  See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).

Suspension of Statues of Limitations and Repose

In his sole issue, Whittington argues that the trial court erred in granting Nathan summary judgment because he timely filed the instant UFTA action in Texas within 60 days of the Nevada court’s dismissal, for lack of personal jurisdiction, of his same claims against Nathan.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 2008).   Thus, he concludes that UFTA’s four-year statute of repose did not extinguish his claims.   

Section 16.064, entitled “Effect of Lack of Jurisdiction,” provides that the period between the date of filing an action in one court and “the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period” if:

(1)     because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and

(2)     not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction. 

Id. § 16.064(a).  The “remedial purpose” of section 16.064 is to provide relief “to one who has mistakenly brought his action in the wrong court.”  Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App.—Fort Worth 1997, writ denied) (citation omitted).

Here, Whittington, timely, within UFTA’s four-year statute of repose, sued Nathan in a Nevada court for violations of UFTA, but the Nevada district court dismissed the action for lack of personal jurisdiction.  Whittington then, within 60 days of the dismissal, in compliance with section 16.064, made his second filing of the same UFTA action in the trial court below.  Nevertheless, the trial court, apparently concluding that Whittington cannot rely upon section 16.064 to suspend the running of UFTA’s statute of “repose” because it is not a statute of “limitation,” granted Nathan summary judgment on the ground that Whittington had untimely filed his UFTA action in Texas. 

Nathan’s argument that section 16.064 does not apply in the instant case to suspend the running of UFTA’s statute of repose is based, in large part, upon his interpretation of the Texas Supreme Court’s opinion in Galbraith Engineering Consultants v. Pochucha, 290 S.W.3d 863 (Tex. 2009).  In Galbraith, the supreme court concluded that the Texas Legislature did not intend for former Texas Civil Practice and Remedies Code section 33.004(e),[5] which concerns the effect of the timely joinder of designated responsible third parties on statutes of limitations, “to revive a claim otherwise barred by a statute of repose, as distinguished from a statute of limitations.”  Id. at 864.  Although the court recognized that the legislature has grouped statutes of repose and limitations together in chapter 16 of the Civil Practice and Remedies Code, it noted that “there are significant differences between the two.”  Id. at 866.  After noting that “[s]tatutes of repose are created by the Legislature, and the Legislature may, of course, amend them or make exceptions to them,” the court framed the issue before it as “whether the Legislature intended to make such an exception when it enacted section 33.004(e) as part of its proportionate responsibility scheme, that is, did the Legislature intend for the revival statute to operate as a general exception to periods of repose.”  Id. at 867. 

The court’s conclusion in Galbraith, limited to the effect of section 33.004(e) on statutes of repose, does not mean that section 16.064, which is expressly entitled, “Effect of Lack of Jurisdiction,” does not apply to “statutes of repose.”  See id. at 867 & n.4 (acknowledging that legislature has used term “limitations” in “both contexts” of limitations and repose; explaining that “statutes of repose in chapter 16 of the Civil Practice and Remedies Code refer to limitations rather than a period of repose”).  Indeed, a closer reading of Galbraith and an understanding of the fundamental purpose of section 16.064 and how it is different from section 33.004(e), which the supreme court recognized as a “revival statute,” compels the opposite conclusion.  Id. at 869. 

The supreme court in Galbraith noted that the legislature can “provide for the extension of a period of repose.”  Id. at 866.  The court reasoned, however, that section 33.004(e), which allows a claimant sixty days to file a claim against a person after that person is “designated as a responsible third party,” does more than “merely extend” the time to file the claim for a period of two months.  Id.  “It effectively renders the period of repose indefinite by attaching the claim’s revival to the existence of some other claim and party that may not be subject to the same or similar period of repose.”  Id.  The court noted that the original defendant, Bill Cox, and the subsequently designated responsible third party, Galbraith, worked on the same improvement to real property and were subject to similar ten-year statutes of repose.  Id.  “Hence, the court of appeals viewed section 33.004(e) as extending the period only by sixty days.”  Id.  However, as further noted by the supreme court, “in other cases a responsible third party may be subject to a longer period of repose or none at all, creating an opportunity for revival many months or years beyond the ten-year period of repose prescribed by section 16.008.”  Id. at 867. 

The supreme court concluded that the legislature could not have intended the term “limitations” as used in section 33.004(e) to apply more broadly to include statutes of “repose.”  Id. at 868–69.  It reasoned that so broadly construing the term “limitations” as used in section 33.004(e) would defeat the recognized purpose for statutes of repose, that is, the establishment of a definite end to the potential for liability, unaffected by rules of discovery or accrual.  Id. at 868.  The court found nothing in section 33.004 or the proportionate responsibility scheme to convince it that the legislature intended to revive claims extinguished by a statute of repose, and, “[b]ecause application of the revival statute in this instance effectively renders the period of repose indefinite, a consequence clearly incompatible with the purpose for such statutes,” it concluded that the legislature “intended for the term ‘limitations’ in section 33.004(e) to refer only to statutes of limitations.”  Id.  at 869 (emphasis added).

Here, in stark contrast, construing the term “limitations” as used in section 16.064 to include statutes of repose would not in any way defeat the recognized purpose of statutes of repose.   Indeed, the language of section 16.064 presumes that the pertinent action has been timely filed, albeit in a court lacking jurisdiction.  Thus, section 16.064 does not serve to “revive” an action that was lost because it was not timely filed; rather, it merely serves to “suspend” the running of periods of limitations and repose for sixty days so that a plaintiff may make a “second filing of the same action in a different court” with “proper jurisdiction.”  Tex. Civ. Prac. & Rem. Code Ann. § 16.064.

Accordingly, in interpreting the language of section 16.064, we conclude that the legislature intended for the term “statute of limitations” as used therein to include “statutes of repose,” i.e., it intended to provide for a suspension of the period of limitations or repose for an action, which, although originally filed timely, was filed in a court lacking jurisdiction.  See id.   Accordingly, we hold that the trial court erred in granting Nathan summary judgment on Whittington’s UFTA action.

We sustain Whittington’s sole issue.


We reverse the judgment of the trial court, and remand this case for further proceedings consistent with our opinion.         

                                                          Terry Jennings


Panel consists of Justices Jennings, Sharp, and Brown.

Justice Brown, dissenting.


 [1]           See Tex. Bus. & Com. Code Ann. §§ 24.01–.013 (Vernon 2009). 

 [2]           See id. § 24.010.

 [3]           See id.

 [4]           See Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 2008).

 [5]           The legislature has now repealed section 33.004(e). Acts of May 30, 2011, 82nd Leg., R.S., ch. 203, §§ 5.02, 6.01–.02, 2011 Tex. Sess. Law Serv. ch. 203.

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