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Texas Top Court to Clarify if Leaving State Pauses Tort Deadline

Oct. 5, 2022, 4:10 PM

A defendant leaving Texas for a continuous but temporary period might no longer pause the statutes of limitations for torts, if the state’s supreme court upholds an appeals court decision that modernizes the long-standing rule.

Section 16.063 of the Civil Practice and Remedies Code pauses the applicable statute of limitations while a defendant isn’t present in Texas. However, some courts are finding reasons to avoid interpreting the law’s language so starkly. A case asking the Texas Supreme Court to clarify this provision is set to be heard Thursday.

The rule “comes from an earlier time when people perhaps weren’t as mobile and communications weren’t as instantaneous,” Christopher Kratovil, managing partner of the Dallas office of Dykema Gossett PLLC, told Bloomberg Law. “If you’ve committed a tort and absconded from the state, you’d be potentially liable when you eventually came back.”

But with modern technology making it much easier to travel to other states for business or pleasure, the law may be outdated.

The case before the high court centers on Harvard student Isabella Almanza, who concedes she remained a Texas resident during the 225 days she left the state for her freshman year in Cambridge, Mass. Before she left for school, she allegedly caused a car accident that injured Sibel Ferrer.

Ferrer initially mistakenly sued Almanza’s sister and father. By the time she discovered Almanza was the one who’d been driving, then sued and served her, the two-year limitation deadline had passed.

Almanza contends that at all times she was was amenable to Texas courts because she hadn’t changed her residency or her Texas driver’s license despite living outside the state. Ferrer argues that section 16.063 should apply to Almanza and toll the statue of limitations.

The Texas Court of Appeals, Seventh District, affirmed summary judgment for Almanza, saying the statute of limitations wasn’t tolled by her absence from the state. The court held that Almanza hadn’t ceased to be a Texas resident since the cause of action accrued and that they had to follow the Texas Court of Appeals, Third District, precedent because the case was transferred from that court.

The case is important from the perspective of a plaintiff’s attorney, because it defines the timetable on which they have to sue, Kratovil said. If the rule is interpreted straightforwardly, plaintiffs would have more of a “margin of error” to sue and could be a bit more relaxed about when they file if the defendant is absent from the state, he said. With heightened levels of travel and remote work after Covid-19, this area of Texas law is due for clarification, Kratovil added.

“In the post-pandemic world where people can work from anywhere, you have a lot of more state-to-state mobility with people working from vacation homes or seasonal homes, or RVs” Kratovil said.

Reinterpreting Statute

This isn’t the first time the Texas Supreme Court has had to step in to add clarity to the rule. In 2008, the court held that the tolling statute—which is vague about who it applies to and doesn’t mention how long an absence has to be to toll a statute of limitations—didn’t apply to nonresidents who are amenable to suit in Texas courts under the state’s long-arm statute.

By adopting that decision, Texas joined the approach of other states and allayed concerns raised by the US Supreme Court that the application of such tolling laws to nonresidents may unconstitutionally interfere with interstate commerce.

Two recent decisions from the Texas Court of Appeals, Fifth District, and the Texas Court of Appeals, Fourteenth District, have held that a Texas resident’s temporary intermittent excursions, such as for a one- or two-week vacation out of state, doesn’t deprive the state of personal jurisdiction over them, and thus don’t toll statutes of limitations. In a split decision, however, the Texas Court of Appeals, First District, applied the statute in a more literal way, holding that tolling applies no matter how long they’re out of state.

“The plain language looks very simple, but it seems that various appellate courts have made it less so in their rulings over the years,” Chad Ruback, a Dallas-based appellate lawyer, told Bloomberg Law. “The case law on the statute isn’t as clear as practitioners would like it to be.”

Ruback says the high court will likely reverse the appeal court’s decision for Almanza, adding that the justices on the court appear to be strongly opposed to “legislating from the bench.”

“There is a inclination in our Texas Supreme Court to not read any language into what’s already written on the page, and instead suggest that if the legislature wants the statute to be handled differently, the legislature can go back and amend the statute,” Ruback said.

Kratovil disagreed, saying that the the state high court has a chance to update the law for the instant messaging era, by recasting the case in terms of personal jurisdiction instead of just in terms of absence from the state.

“Even though Almanza was living in Massachusetts for most of the year, if you had brought a suit against her in Texas she would’ve still been subject to jurisdiction of a Texas court, Kratovil said. “Therefore she doesn’t get to take advantage of the tolling provision.”

Eric H. Marye of Dallas represents Ferrer. Almanza is represented by Hanna & Plaut LLP.

The case is Ferrer v. Almanza, Tex., No. 21-0513, oral argument 10/6/22.

To contact the reporter on this story: Janet Miranda in Houston at jmiranda@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Brian Flood at bflood@bloomberglaw.com