Eddie Medina, Jr. v. Gloria Tate D/B/A Humble Family Skate Center and Humble Family Skate Center, Inc.

Opinion issued July 9, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00496-CV
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EDDIE MEDINA, JR., Appellant
V.
GLORIA TATE D/B/A HUMBLE FAMILY SKATE CENTER AND
HUMBLE FAMILY SKATE CENTER, INC., Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2011-71097
DISSENTING OPINION
Today the Court announces a split from the Fourteenth Court of Appeals that
puts the trial judges in the ten counties served by the two Houston appellate courts
in a quandary: To toll or not to toll. I believe the Fourteenth Court of Appeals
correctly refused to toll limitations under section 16.063 of the CPRC for the
periods of time a Texas resident travels out of state but remains subject to the
personal jurisdiction of Texas courts. See Zavadil v. Safeco Ins. Co., 309 S.W.3d
593 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (construing TEX. CIV.
PRAC. & REM. CODE ANN. § 16.063 (West 2008)). Such out-of-state travel does not
constitute “absence from this state” as that phrase has been interpreted by the
Texas Supreme Court and as similar phrases have been interpreted by the vast
majority of other jurisdictions. I therefore dissent from the Court’s holding that
limitations does not bar Medina’s claims against Tate; however, I join the Court in
affirming the summary judgment as to Humble Family Skate Center.
A. Texas Supreme Court broadly interprets “absence” in section 16.063
My disagreement with the Court’s opinion in this case arises from its
interpretation of the phrase “absence from this state” in section 16.063. TEX. CIV.
PRAC. & REM. CODE ANN. § 16.063. Of course, the starting place for determining
the meaning of any statutory phrase is the statute itself. 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.” Id. But “absence”―the statute’s critical term―is
not defined. A well-known dictionary provides that “absence” is “the state of being
absent.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 4 (11th ed. 2003).
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“Absent,” in turn, is defined as “not present or attending.” Id. “Presence,” the
antonym of “absence,” means “the fact or condition of being present.” Id. at 982.
As Justice Pope did in his dissenting opinion in Vaughn v. Deitz―a case
determining that section 16.063’s predecessor suspended limitations while the
defendant was outside the territorial limits of Texas even though substituted
service of process was available―I would answer the question of when a resident
defendant is “absent” from the state for the purpose of tolling limitations under
section 16.063 by determining whether the resident defendant is “present.” 430
S.W.2d 487, 490 (Tex. 1968) (Pope, J., dissenting),1 overruled by Ashley v.
Hawkins, 293 S.W.3d 175 (Tex. 2009); see also Wyatt v. Lowrance, 900 S.W.2d
360, 361−63 (Tex. App.―Houston [14th Dist.] 1995, writ denied) (refusing to
undertake “literal” reading of section 16.063 because it would be contrary to
legislative intent and would suspend limitations regardless of timing of person’s
departure or person’s residency).
1
Justice Pope’s dissent posited that, when a statute provides for substituted service,
a defendant has a constructive presence in Texas. Vaughn, 430 S.W.2d at 491. He
contended that “[t]he validity of such [substituted service] statutes is grounded
upon the idea that such defendants are legally present through an agent; hence, are
not really absent.” Id. As Justice Pope noted, “[s]ound reasons exist” for
construing substituted service statutes as fixing a defendant’s presence in the state
through their agent for service of process, including “requiring a plaintiff to
proceed without delay or lose his rights” and “the avoidance of interminable
delays while memories fade and witnesses die.” Id. at 492−93.
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Such was the approach taken by the Texas Supreme Court in Kerlin. There,
the Court was asked to construe the tolling statute under different circumstances
than are present here: (1) the defendant did not reside in Texas, either when the
cause of action arose or when suit was filed; (2) a jury found that the defendant
was not physically present in Texas when the cause of action arose; and (3) service
of citation was pursued through the Secretary of State under the Texas longarm
statute. Kerlin v. Sauceda, 263 S.W.3d 920, 922−24, 927−28 (Tex. 2008).
Important here is the Court’s rejection of a strict physical definition of the word
“absence” and adoption of a more metaphysical definition of “presence.” The
Court held, “[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.
In Ashley, the Court overruled Vaughn and extended Kerlin by holding that
section 16.063 does not toll the limitations period when a resident defendant moves
to another state after the cause of action accrued but remains amenable to service
of process. 293 S.W.3d at 178−79. The Ashley plaintiff timely filed the lawsuit, but
failed to achieve service of process under a longarm statute before the limitations
period expired. Id. The Court 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
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longarm statute, as long as the defendant has ‘contacts with the state sufficient to
afford personal jurisdiction.’” Id. Thus, section 16.063 did not toll limitations.
Today, the Court concludes that we are bound by precedent that predates
Kerlin and Ashley to construe section 16.063 more narrowly to require that any
physical departure from the state during the limitations period not be included in
calculating the limitations period.2 I disagree with the Court that we are bound by
these prior holdings after Kerlin and Ashley. While the Court distinguishes Kerlin
because it involved a nonresident defendant, I would place less emphasis on this
distinction because the critical inquiry in Kerlin was not the defendant’s residence
but the defendant’s contacts with Texas. In addition, Ashley uses the more general
term “defendant” (rather than “nonresident”) in holding that a person “is ‘present’
in Texas, for the 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.’” 293 S.W.3d at 179.
There is no dispute in this case that Medina’s claims would be time-barred
absent the application of section 16.063 because he filed suit one day after
2
The majority cites Winston v. American Medical International, Inc., 930 S.W.2d
945, 955 (Tex. App.—Houston [1st Dist.] 1996, writ denied); Ray v. O’Neal, 922
S.W.2d 314, 316−17 (Tex. App.—Fort Worth 1996, writ denied); Loomis v.
Skillerns-Loomis Plaza, Inc., 593 S.W.2d 409, 410 (Tex. Civ. App.―Dallas 1980,
writ ref’d n.r.e.); Koethe v. Huggins, 271 S.W. 143, 144 (Tex. Civ.
App.―Amarillo 1925, no writ); Bemis v. Ward, 84 S.W. 291, 292−93 (Tex. Civ.
App.―Dallas 1904, writ ref’d); and Phillips v. Holman, 26 Tex. 276 (1862).
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limitations expired. To distinguish Kerlin because it involved a nonresident
defendant creates the anomaly that limitations against a nonresident doing business
in Texas may expire before limitations against a Texas resident. For reasons
explained below, such a result is contrary to section 16.063’s purpose of protecting
Texas residents. If the Texas Supreme Court refused to toll limitations in Ashley
when the suit was timely filed but untimely served (without a showing of
diligence), then it is even more compelling that limitations should not be tolled
when the suit was untimely filed because Tate’s absence from the state did not
prevent Medina from filing suit earlier.
B. A broad interpretation of “absence” is consistent with the purpose of
section 16.063
Not only are Kerlin and Ashley binding precedent that superseded this
Court’s prior construction of section 16.063, they also are consistent with section
16.063’s purpose. The first “absent from the state” tolling statute was enacted in
1841 to protect Texas creditors from individuals who entered the state, contracted
for a debt, and then absconded from the state to escape that obligation. See Ayres v.
Henderson, 9 Tex. 539, 541 (1853); Howard v. Fiesta Tex. Show Park, Inc., 980
S.W.2d 716, 722 (Tex. App.—San Antonio 1998, pet. denied) (stating that
provision intended to benefit domestic creditors from “individuals who enter
Texas, contract a debt, depart, and then default on the debt”); Wyatt, 900 S.W.2d at
362 (applying section 16.063 only after determining that section applied because
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defendant fell squarely within statute’s purpose, which was to protect domestic
creditors from defaulting debtors who leave state); Gibson v. Nadel, 164 F.2d 970,
971 (5th Cir. 1947) (recognizing dominant purpose of section 16.063’s predecessor
is to protect Texans from loss caused by “absence of their debtors and consequent
immunity of the latter from process and judgment”). Thus, the tolling provision
addressed immunity from process and judgment issues and reflected a legislative
policy decision to favor plaintiffs (normally Texas residents) against a nonresident
defendant. The Court’s construction here does not further these purposes because
there is no dispute that Tate did not abscond to a foreign jurisdiction and was
amenable to service of process during the limitations period.
C. Other jurisdictions broadly interpret “absence” in similar tolling
provisions
All fifty states have a statute like section 16.063 that tolls limitations during
a defendant’s absence from the jurisdiction. And, nearly every state has addressed
the fundamental issue of whether application of the state’s tolling statute is
justified in light of the state’s expanding reach with respect to service of process
and personal jurisdiction. See Henry M. Pogorzelski, For Whom Does the Statute
Toll? Serious Concerns About our Antiquated Texas Tolling Statute, 17 Rev. Litig.
589, 601 (1998). As amicus curiae in Ashley, the Texas Attorney General surveyed
the laws of other states on this issue. The survey showed a clear majority rule.
Forty-two states conclude that their respective tolling provisions do not apply when
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the defendant (resident and nonresident alike) is amenable to service of process
and thereby subject to personal jurisdiction.3 See Kerlin, 263 S.W.3d at 928
(Brister, J., concurring) (observing that vast majority of other states have
determined that person whose minimum contacts make them amenable to suit in
state cannot fairly be said to be absent from state); Vaughn, 430 S.W.2d at 491−93
(Pope, J., dissenting) (surveying tolling provisions of other states). One more state
3
See e.g., Dickson v. Amick, 662 S.E.2d 333, 337 (Ga. Ct. App. 2008); Atkinson v.
McLaughlin, 462 F. Supp. 2d 1038, 1048 (D.N.D. 2006); Hansen v. Larsen, 797
A.2d 118, 122 (Md. Ct. Spec. App. 2002); Shin v. Mclaughlin, 967 P.2d 1059,
1065 (Hawaii 1998); Meyer v. Paschal, 498 S.E.2d 635, 638−39 (S.C. 1998);
Lund v. Hall, 938 P.2d 285, 290 (Utah 1997); Dalition v. Langemeier, 524 N.W.2d
336, 341 (Neb. 1994); Keller v. Crase, 768 P.2d 905, 906 (Okla. 1989); Brossman
v. Fed. Deposit Ins. Corp., 510 A.2d 471, 472 (Del. 1986); Simmons v.
Trivelpiece, 642 P.2d 1219, 1220 (Nev. 1982); Bray v. Bayles, 618 P.2d 807, 810
(Kan. 1980); Beedie v. Shelley, 610 P.2d 713, 716 (Mont. 1980); Walsh v.
Ogorzalek, 361 N.E.2d 1247, 1250 (Mass. 1977); Yarusso v. Arbotowicz, 362
N.E.2d 600, 601 (N.Y. 1977); Tarter v. Insco, 550 P.2d 905, 910 (Wyo. 1976);
Lipe v. Javelin Tire Co., 536 P.2d 291, 294 (Idaho 1975); Rivera v. Taylor, 336
N.E.2d 481, 487 (Ill. 1975); Selby v. Karman, 521 P.2d 609, 611 (Ariz. 1974);
Long v. Moore, 204 N.W.2d 641, 643−44 (Minn. 1973); Am. States Ins. Co. v.
Williams, 278 N.E.2d 295, 301 (Ind. Ct. App. 1972); Byrne v. Ogle, 488 P.2d 716,
717 (Alaska 1971); Will v. Malosky, 247 A.2d 788, 790 (Pa. 1968); Jarchow v.
Eder, 433 P.2d 942, 945 (Okla. 1967); Benally v. Pigman, 429 P.2d 648, 650−51
(N.M. 1967); Smith v. Forty Million, Inc., 395 P.2d 201, 201−02 (Wash. 1964);
Hammel v. Bettison, 107 N.W.2d 887, 893 (Mich. 1961); Whittington v. Davis,
350 P.2d 913, 915 (Or. 1960); Bolduc v. Richards, 142 A.2d 156, 158 (N.H.
1958); Kokenge v. Holthaus, 52 N.W.2d 711, 712 (Iowa 1952); Peters v. Tuell
Dairy Co., 35 So. 2d 344, 345 (Ala. 1948); Reed v. Rosenfield, 51 A.2d 189, 191
(Vt. 1947); Coombs v. Darling, 166 A. 70, 71 (Conn. 1933); Busby v. Shafer, 66
N.W.2d 910, 911 (S.D. 1954); Arrowood v. McMinn Cnty., 121 S.W.2d 566, 567
(Tenn. 1938); Roess v. Malsby Co., 67 So. 226, 228 (Fla. 1915).
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has suggested the same limitation in dicta.4 Only two states have affirmatively
stated that their tolling statutes apply regardless of the defendant’s amenability to
service.5 As Justice Pope wrote in Vaughn,
The Texas tolling statute . . . is not unique or different from those of
other states, almost all of which have held that the presence or
absence of a defendant must be solved in terms of jurisdiction over the
person. If a defendant is within the jurisdiction of a state for purposes
of process and an in personam judgment, he is present, not absent.
430 S.W.2d at 491.
D. Sound policy reasons justify a broad interpretation of “absence” under
section 16.063
Sound judicial and legislative policies support a broad interpretation of
“absence” in section 16.063. A traditional purpose of statutes of limitation has
been to promote justice by “compel[ling] the assertion of claims within a
reasonable period while the evidence is fresh in the minds of the parties and
witnesses.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.
1996). Thus, limitation periods are favored because they provide a date certain by
which claims must be asserted and thereby compel a plaintiff to be diligent in the
pursuit of its claims, provide a defendant with fair notice and an opportunity to
prepare a defense, and prevent the litigation of stale claims. See Matthews Constr.
4
See Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501, 504 (Mo. Ct. App.
1987).
5
See Dew v. Appleberry, 591 P.2d 509, 513 (Cal. 1979); Johnson v. Rhodes, 733
N.E.2d 1132, 1133 (Ohio 2000).
9
Co. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990); Davis v. Howe, 213 S.W. 609, 611
(Tex. Comm’n App. 1919, judgm’t adopted). Limitation periods also serve
society’s broader interest “on the theory that the uncertainty and insecurity caused
by unsettled claims hinder the flow of commerce.” Computer Assocs. Int’l, 918
S.W.2d at 455 (quoting Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d
544, 545 (Tex. 1986)).
If courts extend the limitations period each time a resident defendant travels
out of state for business or pleasure, the limitations period ceases to be a fixed
point in time. Although the delay here was short―only one day―that will not be
so in every case. Texas residents enjoy easy access to domestic and international
travel. Imagine a motor vehicle accident occurs near Houston. There are three
potential defendants: (1) a college student who resides in Houston but occasionally
crosses the border into Louisiana to stay at his family’s lake house, (2) a Dallas-
based fashion designer who travels abroad several times each year in search of
textiles, and (3) a Texarkana businessman who works each day on the Arkansas-
side of the border. Even though the same event gives rise to the claims against each
of these defendants and each of the defendants is amenable to service of process at
all times, different limitations periods will apply. In addition, how is the trial court
to measure the various periods of travel against the limitations period? While it is
easy to calculate the fashion designer’s temporary absences abroad that are
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substantial in length, it is more difficult to calculate the college student’s
intermittent trips across the border or the working hours of the Texarkana
businessman. The discovery burden will be heavy.
Tolling limitations against a resident defendant who occasionally leaves the
state only aids a recalcitrant claimant who failed to file its suit timely. The policies
behind the statutes of limitations are best served by applying section 16.063 only
when the plaintiff cannot bring the claim because the defendant cannot be located
or is beyond the reach of the court’s jurisdiction. See Pogorzelski, 17 Rev. Litig. at
600−01 (suggesting that best application of section 16.063 is to toll limitations
when defendant, whether Texas resident or not, incurs liability in Texas and goes
into hiding or leaves country and burden of serving defendant becomes
substantial); see also Brown v. ProWest Transp., Ltd., 886 P.2d 223, 228−29
(Wash. Ct. App. 1994) (holding that tolling applies when defendant willfully
evades process, despite being amenable to service by publication); Greenwood v.
Wierdsma, 741 P.2d 1079, 1083 (Wyo. 1987) (making clear that amenability
requires that plaintiff know defendant’s whereabouts); Keck v. Pickens, 182
S.W.2d 873, 874−75 (Ark. 1944) (holding that tolling is triggered by
“concealment,” such as when defendant prevents successful prosecution of suit or
leaves jurisdiction to avoid legal process).
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Conclusion
I agree with our sister court in Houston that the tolling provision in section
16.063 is not meant to apply every time a Texas resident leaves our state’s
boundaries for a vacation or a business trip so that plaintiffs are given additional
time to file an otherwise time-barred suit even though the resident defendant is at
all times amenable to service of process. Zavadil, 309 S.W.3d at 595. Such a
conclusion is mandated by Texas Supreme Court authority and favored by
legislative intent. Additionally, it follows the great majority of jurisdictions and is
buttressed by a concern for the effectiveness of our statutes of limitations. Because
of the importance of this issue and the practical difficulties associated with our
split from the other Houston court of appeals, I urge the Texas Supreme Court to
resolve the split.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Justice Brown, dissenting.
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