In response to a certified question from the U.S. Court of Appeals for the Fifth Circuit, the Texas Supreme Court has held that § 16.064, CPRC, which tolls the statute of limitations for bringing a second suit when the first suit has been dismissed because of lack of jurisdiction, applies even when the trial court had jurisdiction in the first suit all along.
Lee Marvin Sanders and Matthew Sodrok v. The Boeing Company, Kidde Technologies, Inc., and Jameo America Inc. (No. 23-0388; decided December 1, 2023) arose from an action brought by two flight attendants against Boeing for injuries suffered when a smoke alarm malfunctioned on their flight, emitting a an alarm so loud that it burst their ear drums and caused permanent hearing loss. Plaintiffs initially filed suit in federal district court in Houston but soon dismissed without service on defendants. They refiled the suit in a Dallas federal district court, but about 18 months after the two-year limitations period expired the trial court, on its own motion, entered an order directing plaintiffs to file an amended pleading addressing deficiencies in jurisdictional facts. When plaintiffs did so a week later, the trial court dismissed the complaint without prejudice for lack of jurisdiction. Plaintiffs appealed to the Fifth Circuit, which affirmed. The Fifth Circuit subsequently denied plaintiffs’ motion for rehearing on September 3, 2021, and issued its mandate on September 21. On November 10 the flight attendants refiled their claim in state court. Boeing removed the case to federal court on diversity grounds and asserted limitations. The court granted the motion on the basis, determining that § 16.064 did not apply because plaintiffs’ first action was never deemed a “wrong court,” i.e., diversity jurisdiction existed in that court.
Plaintiffs once more appealed to the Fifth Circuit, which certified two questions to SCOTX: (1) does § 16.064 apply when the prior court dismissed the action because of lack of jurisdiction in spite of the fact that the court would have had jurisdiction if claimants had properly pleaded the jurisdictional facts, and (2) did these claimants file the subsequent action within sixty days after the dismissal became final?
In an opinion by Justice Boyd, SCOTX answered yes on both counts. First, § 16.064 applies because the statute requires only that the first action be dismissed “because of lack of jurisdiction,” not, as Boeing argued, because the first court lacked jurisdiction, i.e., was the “wrong” court. As Justice Boyd concluded, “[i]f the prior action was dismissed “because of lack of jurisdiction,” the statute’s plain-language requirement is satisfied even if the court actually had jurisdiction or could have had it if the jurisdictional facts were properly pleaded.” SCOTX likewise rejected Boeing’s argument that because the statute requires the subsequent action to be filed in “a court of proper jurisdiction,” it must mean that the prior court necessarily must be improper. Indefinite articles matter, as Justice Boyd opined, because the statute “requires the action to be refiled in ‘a court of proper jurisdiction,’ not ‘the court of proper jurisdiction’ as if there could be only one court in which jurisdiction could be proper.” Boeing’s last Hail Mary also fell on deaf ears. It asserted that because the statute refers to a “second” action, there can be only one “first” (Houston) and one “second” (Dallas) action. Here, there is a third action, which was filed in state court. Again, turning to the plain language of the statute, Justice Boyd noted that the term “second” merely refers back to “an” action, meaning simply that the subsequent action must merely be preceded by a prior action dismissed because of lack of jurisdiction.
Perhaps the most interesting issue, and certainly the one with broader application, is when an action becomes “final” for purposes of § 16.064 and even beyond. Here the court discussed various contexts in which an action may become “final” for certain purposes but not for others. The court concluded that there are two situations raised by § 16.064. First, when no party appeals the dismissal for lack of jurisdiction, “whether the claimant timely filed the subsequent action depended on whether that action was ‘commenced’ within sixty days after dismissal of the [prior] suit.” Thus, the sixty-day period runs from the date “when the trial court loses plenary power and can no longer reconsider or modify its judgment” (citation omitted). Similarly, in the event a trial court has not dismissed because of lack of jurisdiction, a party seeks appellate relief from the court’s order or judgment, the court of appeals dismisses because of lack of jurisdiction, and no party seeks review of the appellate court’s dismissal, the dismissal becomes final when the appellate court loses plenary power and can no longer reconsider its judgment. The analysis would come out the same way when no party appeals a dismissal for lack of jurisdiction by either a trial court or court of appeals, a party seeks review at SCOTX, SCOTX dismisses the appeal for lack of jurisdiction, and no party seeks review of SCOTX’s dismissal at SCOTUS.
Finally, the court reached the circumstances of this case: a party appeals an order that dismisses a prior action because of lack of jurisdiction and the court of appeals affirms. In this case, the jurisdictional issue “remains live–and the dismissal if not truly ‘final–until the appellate court loses plenary power to resolve that dispute. And if the appellate court affirms the dismissal, or if the appellate court was the first to dismiss because of lack of jurisdiction, the dispute still exists until this Court loses power to act on any timely filed petition for review” (citations omitted). In this regard, the Justice Boyd pointed out that “finality” for purposes of § 16.064 refers to the dismissal’s “effect,” not, as in other contexts, with the finality of an order on its face.
We’re not sure how often § 16.064 gets litigated, but it’s likely not be litigated very often in the future. Here SCOTX saw fit to dispose of pretty much every conceivable combination of events to which the statute may apply.
