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Liptak, Frank v. Brunson, Megan ( 2013 )


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  • Dissenting Opinion Filed June 7, 2013.
S   In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01209-CV
FRANK LIPTAK, Appellant
V.
MEGAN BRUNSON, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-02919-2010
DISSENTING OPINION
Opinion by Justice Murphy
Section 16.063 suspends the running of the applicable statutes of limitation for persons
temporarily absent from the state. TEX. CIV. PRAC. & REM. CODE ANN. § 16.063 (West 2008).
By concluding the statute does not apply to Texas residents, the majority has rendered the statute
meaningless and effectively repealed the statute.
The Texas Supreme Court declared long ago that a change in the law allowing for
temporary departures of residents from the state to toll the running of statutes of limitation “must
be left to the wisdom of the legislature.” Fisher v. Phelps, Dodge & Co.,
    21 Tex. 551
    , 560
(1858). As observed by the supreme court in Fisher, this tolling provision applied originally
only to residents.
    Id. at 556 
    (describing provisions of section 16.063’s predecessor statute, which
includes “only persons who are residents of the state,” as “exceptional”). It was extended to non-
residents who were present in Texas when an obligation arose or a cause of action accrued. See
Vaughn v. Deitz,
    430 S.W.2d 487
    , 490 (Tex. 1968), overruled by Ashley v. Hawkins,
    293 S.W.3d 175 
    (Tex. 2009) (applying to auto accident); Stone v. Phillips,
    176 S.W.2d 932
    , 933 (Tex. 1944)
(applying to debt); see also Ahrenhold v. Sanchez,
    229 S.W.3d 541
    , 543 (Tex. App.—Dallas
2007, no pet.).
The application of section 16.063 to non-residents came under scrutiny in 2008 when the
Texas Supreme Court, faced with a constitutional challenge in Kerlin v. Sauceda,
    263 S.W.3d 920 
    (Tex. 2008), held section 16.063 does not apply to a non-resident who is amenable to service
of process under the long-arm statute.
    Id. at 927. 
    The court reasoned that the non-resident, by
virtue of the general long-arm statute, is present in the state.
    Id. at 928. 
    Kerlin involved contract
and various tort claims regarding primarily oil and gas royalties. See
    id. at 924. 
    The next year, the supreme court addressed the issue again, concluding in Ashley that
section 16.063 does not apply to a non-resident involved in an automobile accident in Texas. It
again reasoned the non-resident defendant is present in the state and, in that instance, amenable
to service of process through both the Chairman of the Texas Transportation Commission and
the Secretary of State.
    Ashley, 293 S.W.3d at 178
    –79. The court therefore overruled its prior
Deitz decision in which the court had concluded the tolling provision applied to a non-resident in
the same situation.
    Id. at 179. 
    The court noted further that Deitz’s continued application “may”
pose constitutional problems.
    Id. at 179 
    n.4 (citing Bendix Autolite Corp. v. Midwesco Enters.,
Inc.,
    486 U.S. 888
    , 892–94 (1988) (holding states cannot condition statutes of limitation on
requirement non-residents appoint local agent for service)).
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The supreme court’s holdings regarding the applicability of section 16.063 were limited
expressly to non-residents in both Kerlin and Ashley. By extending the holdings in these cases to
a resident defendant involved in an automobile accident, the majority effectively repeals section
16.063. For more than 150 years, Texas has had a tolling statute applicable to residents. Section
16.063 is titled “Temporary Absence From State.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.063
(emphasis added). The presence of a non-resident in the state by virtue of a long-arm statute
does not equate with the presence of a resident in the state. While a court in Texas no doubt has
personal jurisdiction over a resident, service on a resident may not be effected through the long-
arm statute by simply mailing process to a governmental agent such as the Secretary of State.
While the viability of a tolling statute such as section 16.063 has come under question since the
supreme court’s Fisher decision in 1858, I would echo that it is solely the legislature’s province
to repeal the statute.
    Fisher, 21 Tex. at 560
    . I therefore respectfully dissent.
/Mary Murphy/
MARY MURPHY
JUSTICE
111209F.P05
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