Almazan v. United Services Auto. Ass'n, Inc.

• Decision Date: 30 October 1992
• Docket Number: No. 04-92-00060-CV,04-92-00060-CV
• Citation: 840 S.W.2d 776
• Parties: Yolanda ALMAZAN v. UNITED SERVICES AUTOMOBILE ASSOCIATION, INC.
• Court: Texas Court of Appeals

Page 776

840 S.W.2d 776

Yolanda ALMAZAN v. UNITED SERVICES AUTOMOBILE ASSOCIATION, INC.

No. 04-92-00060-CV.

Court of Appeals of Texas San Antonio.

Oct. 30, 1992.

Rehearing Denied Oct. 30, 1992.

John B. Benton, Benton, Dishongh & Jamal, San Antonio, for appellant.

James E. Hoffman, Asst. Vice President, Litigation, Labor Counsel, John J. Franco, Jr., Franklin Eastwood Wright, Groce, Locke & Hebdon, San Antonio, for appellee.

Before BUTTS, PEEPLES and BIERY, JJ.

OPINION

PEEPLES, Justice.

The motion for rehearing is overruled. Our previous opinion is withdrawn and replaced by the following.

Plaintiff Almazan appeals from a take-nothing summary judgment. The trial court concluded that the summary judgment evidence refuted Almazan's contract cause of action as a matter of law, and that the two-year statute of limitations barred her other theories, which sound in tort. We affirm the judgment.

Almazan was injured at work in 1987. On August 24, 1988, her employer (defendant U.S.A.A.) fired her, stating that she had not kept it advised of her medical status. She filed this suit on September 28, 1990, alleging only breach of contract. She asserted that she and U.S.A.A. had an agreement that she would not be dismissed without good cause, and that U.S.A.A. lacked good cause to dismiss her. On December 14, 1990, she filed an amended petition, alleging intentional infliction of emotional distress, tortious interference with prospective contractual relations, and violation of TEX.REV.CIV.STAT.ANN. art. 8307c (Vernon Pamphlet 1992). U.S.A.A. moved for summary judgment on the grounds that Almazan's employment was at-will, which barred her breach of contract claim, and that the two-year statute of limitations barred the other theories of recovery. All of Almazan's pleadings were filed more than two years after her causes of action accrued. The court granted the motion.

Almazan filed her original petition 25 months after her termination, and her amended petition three months later. The breach of contract count was asserted within the four-year statute and was timely.

I.

Almazan first asserts that her three tort theories of recovery are also timely because they relate to the same transaction or occurrence alleged in her timely breach of contract pleading. See TEX.CIV.PRAC. & REM.CODE § 16.068; Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.1967). Section 16.068 specifies when a new cause of action may be asserted by amended petition:

If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

Almazan argues that because her breach of contract theory was timely filed, her later-pleaded theories may be alleged by amended petition even though the two-year statute applies to them and would have barred them when she filed her original petition. She reads § 16.068 to mean that if an original pleading alleges cause of action A, which is not barred by limitations, an amended pleading alleging cause of action B is not subject to limitations, even if B was barred when the pleading alleging A was filed (provided that B is not wholly based on a new or different transaction or occurrence).

That is not how the cases have consistently interpreted § 16.068 and its predecessor, TEX.REV.CIV.STAT.ANN. art. 5539b (Vernon 1958). The cases have consistently held that if the statute of limitations would have barred a cause of action when the original pleading was filed, it will still bar that cause of action when it is first asserted by amended pleading, even though the original pleading asserted other theories that were timely. See Bado Equip. Co. v. Bethlehem Steel Corp., 814 S.W.2d 464, 469 (Tex.App.--Houston [14th Dist.] 1991, no writ); Sullivan v. Hoover, 782 S.W.2d 305, 306-07 (Tex.App.--San Antonio 1989, no writ); Khalaf v. Williams, 763 S.W.2d 868, 870 (Tex.App.--Houston [1st Dist.] 1988), rev'd on other grounds, 802 S.W.2d 651 (Tex.1990); Bell v. Bell, 434 S.W.2d 699, 701 (Tex.Civ.App.--Beaumont 1968, writ ref'd n.r.e.). Similarly, one court has held that "a cause of action barred by limitation cannot be revived by filing a pleading stating an invalid cause of action and thereafter amending to include the barred cause of action." Church v. Ortho Diagnostic Sys., Inc., 694 S.W.2d 552, 556 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). The court in Church did not say whether an amended pleading could revive a barred cause of action if the theory alleged in the original petition was valid. Bado, Sullivan, and Bell did not mention the "relation back" statute although Sullivan and Bell discussed Leonard v. Texaco, which cited and applied it.

We think the cases have stated the proper rule, and that the legislature did not intend to allow an amended pleading to revive causes of action that were barred when the original pleading was filed. If the law were otherwise, a litigant could avoid the shorter statutes of limitations by pleading a theory governed by a longer statute in the original petition, later amending to allege the theories with shorter limitation periods. For example, a plaintiff with a libel claim, barred by the one-year statute, could sue the publisher within two years for negligence, or within four years for fraud, and amend later to revive his libel theory. Similarly, a tort claimant whose theories of negligence and strict liability were barred by the two-year statute could sue for breach of warranty within four years and later amend to plead his tort theories.

The cases confirm that the legislature did not intend that result and that the Khalaf court was correct in saying that "the intent of section 16.068 was to protect existing rights, not to create or revive a right or cause of action that had terminated prior to the claim being asserted." Khalaf v. Williams, 763 S.W.2d at 870 (emphasis added). Section 16.068 (and article 5539b before it) has always been characterized as a "tolling" statute--that is, one that stops the clock but does not run it back. See First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16, 17-18 (1939); McAdams v. Capitol Prods. Corp., 810 S.W.2d 290, 293 (Tex.App.--Fort Worth 1991, writ denied); Flukinger v. Straughan, 795 S.W.2d 779, 787 (Tex.App.--Houston [14th Dist.] 1990, writ denied); Stone v. Brown, 621 S.W.2d 182, 183 (Tex.Civ.App.--Texarkana 1981, writ ref'd n.r.e.); Childre v. Childre, 417 S.W.2d 464, 466 (Tex.Civ.App.--San Antonio 1967, no writ). Similarly, some older cases state that the original petition "interrupts" the running of limitations. See Pacific Greyhound Lines v. Tuck, 217 S.W.2d 699, 701 (Tex.Civ.App.--El Paso 1948, writ ref'd n.r.e.); Curtis v. Speck, 130 S.W.2d 348, 351 (Tex.Civ.App.--Galveston 1939, writ ref'd). Needless to say, a statute cannot "toll" a time period that has already expired.

Our courts have consistently said the amended petition "relates back" to the filing of the original petition, language that suggests the amended pleading is simply considered filed as of the time the original pleading was filed. See, e.g., Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 127-28 (Tex.App.--Houston [1st Dist.] 1992, n.w.h.); McAdams, 810 S.W.2d at 293; Stevenson v. Koutzarov, 795 S.W.2d 313, 319 (Tex.App.--Houston [1st Dist.] 1990, no writ); Bradley v. Etessam, 703 S.W.2d 237, 240 (Tex.App.--Dallas 1985, writ ref'd n.r.e.); Abbott v. Foy, 662 S.W.2d 629, 631 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.); Stone v. Brown, 621 S.W.2d 182, 183 (Tex.Civ.App.--Texarkana 1981, writ ref'd n.r.e.); Curtis v. Speck, 130 S.W.2d at 351. All these cases are consistent with the supreme court's interpretation of the statute as a tolling, or relation-back, statute. See Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816, 823 (1950) ("The commencement of the plaintiff's action therefore dates from the filing of his original petition....").

We hold that under § 16.068 the original petition "tolls" or stops the statute of limitations from running, that the plaintiff's suit "commences" on the day it is filed, and that later pleadings "relate back" to the original one. If the theories asserted in the amended pleading would not have been timely if asserted in the original pleading, they are subject to a plea of limitations.

II.

Almazan next argues that the four-year statute applies to her article 8307c claim for wrongful dismissal. She candidly concedes that the courts have held that the two-year statute applies. See Luna v. Frito-Lay, Inc., 726 S.W.2d 624 (Tex.App.--Amarillo 1987, no writ). The court in Smith v. Coffee's Shop For Boys and Men, Inc., 536 S.W.2d 83 (Tex.Civ.App.--Amarillo 1976, no writ), said the same thing without analysis. She argues that Luna and Smith are no longer viable, citing Williams v. Khalaf, 802 S.W.2d 651 (Tex.1990), for the rule that causes of action not expressly mentioned in the limitations statutes are governed by the residual four-year statute. We disagree with her reading of Khalaf.

In Khalaf the court held that the four-year statute of limitations applies to fraud actions. The court reasoned that even though fraud is considered a tort cause of action, at common law fraud developed more from the action for debt than from the action for trespass. Accordingly, the court applied the four-year debt statute of limitations instead of the two-year trespass statute.

The supreme court in Khalaf did not hold that all causes of action will invariably be governed by the residual four-year statute unless they are expressly mentioned by name in the limitations statutes. On the contrary, the court said that most torts will be governed by the two-year statute of...