Justice Rebeca Huddle
Over a pointed dissent, the Texas Supreme Court has held that a Texas resident’s attendance at an out-of-state university did not toll the statute of limitations under § 16.063, CPRC.
Sibel Onasis Ferrer v. Madalena Elizabeth Almanza, Isabella P. Almanza, and Albert Boone Almanza (No. 21-0513; delivered April 28, 2023) arose from an automobile accident in February 2017. Plaintiff filed a personal injury action in January 2019 but incorrectly named the defendant’s sister, Madalena, as the driver defendant. She also sued the defendant’s father, a well-known Austin attorney, for negligent entrustment. Defendants filed a verified denial that Madalena was the driver of the vehicle and, in response to plaintiff’s request for disclosure, identified Isabella as the driver. Plaintiff amended her petition in May 2019, more than two years after the accident. In August 2018 Isabella left Austin to attend Harvard University, but she maintained her primary residence in Austin and returned home during breaks. After amending her petition, plaintiff attempted to serve Isabella at her family’s residence but declined to allow her father to accept service on her behalf. She moved for substitute service, which the trial court granted. Ultimately, Isabella was personally served in July 2019.
Isabella promptly moved for summary judgment, asserting that the two-year limitations expired. Plaintiff amended her petition to allege that the statute was tolled during Isabella’s absence from the state under § 16.063, which provides that the “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.” Because Isabella was away at school for 225 days during the relevant period, plaintiff argued, plaintiff’s May 2019 petition was timely. The trial court granted summary judgment, and the Amarillo Court of Appeals affirmed.
In an opinion by Justice Huddle, SCOTX affirmed. Tracing the history of § 16.063 back to 1841, Justice Huddle recounted the historical context of the original statute, which was designed “to protect domestic creditors from ‘the absence of their debtors.’” Noting that fleeing the boundaries of the Republic of Texas (and later the fledgling state) to avoid one’s debts defeated personal jurisdiction and constituted immunity from the judgment, the tolling provision aimed to keep the door open to nabbing the debtor if he or she was ever fool enough to set foot in Texas again. With the winds of technological change in the twentieth century, however, obtaining personal jurisdiction by other means than physical presence became feasible, leading, among other things, to statutory requirements for the appointment of resident agents to receive service of process for nonresident defendants (e.g., in vehicle accident cases). In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the U.S. Supreme Court dispensed with the physical presence requirement in favor of the minimum contacts approach to personal jurisdiction, which led to the adoption of long-arm statutes in the states, as well as tolling statutes based not on a defendant’s physical presence in the jurisdiction but on whether the defendant was subject to jurisdiction during the limitations period.
This history lesson brings us back to § 16.063, which was re-enacted in 1985 but deleted the prior “statute’s reference to the defendant being ‘without the limits of this State’ and the statement that a plaintiff could bring an action ‘after [the defendant’s] return to the State.’” A split Court had relied on these references in Vaughn v. Deitz, 430 S.W.2d 487 (Tex. 1968) to conclude that the tolling provision should be read to apply “to the absence of the defendant from or presence within the territorial limits of the state.” Observing that the Court subsequently overruled Deitz, Justice Huddle remarked that intermediate courts of appeals disagreed on the application of § 16.063. The Court accepted review to clear up this confusion.
Plaintiff argued that once Isabella went to college at Harvard, she ceased to be a resident of Texas, thus tolling limitations until she returned, and that § 16.063, as interpreted by Texas courts, applies only to Texas residents (i.e., not nonresidents who have a wreck in Texas and then leave the state). The majority disagreed, pointing out that § 16.063 doesn’t say anything about applying only to Texas residents. Moreover, “[plaintiff’s] interpretation would lead to the odd result that a resident defendant who leaves Texas would be subject to tolling under Section 16.063 is the plaintiff sued before the defendant established residency elsewhere, but not if the plaintiff sued after the defendant established residency elsewhere, because then the defendant would be subject to the long-arm statute.” The Court declined plaintiff’s invitation to distinguish its holding in Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009), in which the Court held that “a defendant’s physical absence from Texas, standing alone, does not trigger the application of Section 16.063.” In Ashley, the Court determined that because the defendant was amenable to service of process under the long-arm statute, Section 16.063 did not toll limitations. The same rationale, therefore, applied to Isabella’s nine-month sojourn in Cambridge, Massachusetts.
Justice Busby dissented, arguing that when § 16.063 says “absence from the state,” it means “absence”—“not being where [one is] usually expected to be.” It does not say, for example, “except when the defendant is a Texas resident who is attending college in another state” or, more generally, “expect when the defendant is subject to jurisdiction while absent from this state.” He also disagreed with the majority that the 1985 recodification of § 16.063 made any substantive change in the statute, much less a change that imported International Shoe into an 1841 law. According to Justice Busby, the majority’s interpretation “renders section 16.063 a nullity. Tolling will never be relevant in cases where the defendant cannot be sued at all due to lack of personal jurisdiction, as no court will ever be called upon to decide whether statutory tolling would apply to a limitations defense raised by that defendant. And defendants who are subject to jurisdiction are always amenable to some form of service [i.e., through an appointed Texas agent for substituted service of process].”
Justice Huddle responded to the dissent in terms of the uncertainty that would flow from an interpretation of the statute to toll limitations every time a defendant left the state for a few days and the potential necessity for discovery of the defendant’s whereabouts for every day of the limitations period. In any event, it appears to us that the Court opted, as Justice Huddle put it, for a “bright-line” rule that preserves “legislative determinations of what constitutes a reasonable time in which to present a claim.” This language appears in a footnote in the majority opinion, but it stands out to us as an example of judicial pragmatism. Nobody really wants to get bogged down in trying to prove up the number of days a defendant may or may not have been absent from the state during the limitations period, particularly when the plaintiff can haul them into a Texas court anyway. On the other hand, the text of the statute is what it is. This had to have been a tough call on both sides.
