Jackson v. Speer

• Decision Date: 14 October 1992
• Docket Number: No. 92-1419,92-1419
• Citation: 974 F.2d 676
• Parties: Richard JACKSON, Plaintiff-Appellant, v. David SPEER, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 676

974 F.2d 676

Richard JACKSON, Plaintiff-Appellant, v. David SPEER, Defendant-Appellee.

No. 92-1419

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1992.

Richard L. Jackson, Dallas, Tex., for plaintiff-appellant.

William Bennett Cullum, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

BACKGROUND

Jackson sued Speer on May 1, 1991 alleging, among other things, that Speer fraudulently induced him into investing in a piece of property in Montana. Speer filed a motion 1. In the fall of 1982, Speer, who was then a resident of Montana and has remained a resident of Montana ever since, came to Dallas, Texas, to discuss with Jackson and other individuals the possible purchase of a tract of land which Speer owned in Montana and/or the investment in a corporation which Speer proposed to form to purchase such land. During the course of a single meeting in the fall of 1982, Speer made certain representations which Jackson contends were false.

                for summary judgment alleging Jackson's actions were barred by the applicable four year statute of limitations.   In response, Jackson asserted that section 16.063 of the Texas Civil Practice and Remedies Code, (the "Tolling Statute") applies to this case and suspended the running of the statute of limitations while Speer was absent from Texas.   The testimony presented at the hearing on motion for summary judgment showed the following facts
                

2. After the meeting in Dallas, Speer returned to Montana and remained there at all times pertinent to this law suit.

3. Jackson moved to Montana in the early part of 1983 and lived there for more than two years. During the time Jackson was in Montana, he and Speer formed "Powderhorn Development Corporation" ("Powderhorn"), a Montana corporation; and in September 1983, Powderhorn entered into a contract to purchase from Speer the tract of land in Montana which had been the subject of the discussions in Dallas in the fall of 1982. At the time of the formation of Powderhorn, Jackson invested $3,000 in the corporation; at the time of the Contract for Deed, Jackson invested $39,000 in the corporation; and in early April, 1984, Jackson invested another $7,000 in the corporation.

4. In August, 1985, Jackson, who was then living in Montana, sent a letter to Speer which included the following paragraph referring to the Powderhorn property:

"David, as you know, you told us a number of things about this property before we bought it that simply were not true. As a result we have had trouble generating any revenue from it, and thus the default. I have said nothing until now, but if you follow through with this default, we are going to court to rescind the sale and to sue for damages."

5. In May, 1986, Jackson, who was then living back in Dallas, Texas, wrote a letter to Speer which included the following paragraph referring to the Powderhorn property:

"If I don't receive a satisfactory response within the time stated, I will file a suit to have all of the questions and problems between us resolved by the court, along with the questions of the initial statements made by you to all shareholders to induce us to buy this stock, as we have discussed before."

The District Court declined to apply the Tolling Statute and granted Speer's motion for summary judgment. Jackson filed a motion for new trial which the District Court overruled. Jackson appealed the District Court's granting of summary judgment and denial of new trial solely on the ground of error in refusing to apply the Tolling Statute.

OPINION

The Tolling Statute reads as follows:

"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."

Tex.Civ.Prac. & Rem.Code Ann. § 16.063 (Vernon 1986) ¹. The general rule regarding the applicability of the Tolling Statute is that it does not apply to nonresident defendants. Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962); Snoddy v. Cage, 5 Tex. 106 (1849). This rule is subject to two exceptions. First, the tolling provision applies to nonresident defendants who were present in the state when they executed a promissory note or otherwise contracted a debt. Ayres v. Henderson, 9 Tex. 539 (1853). The court in Ayres announced this exception based on the legislative purpose behind the provision of protecting domestic creditors from individuals who entered Texas, contracted a debt, and departed the state only to subsequently default on the debt. Ayres, 9 Tex. at 541-2. Courts have continued to recognize the existence of this exception throughout the life of the Tolling Statute. Wilson & Co. v. Daggett, 88 Tex. 375, 31 S.W. 618 (1895) (exception expressed in terms of a nonresident's presence when the debt was created, citing Ayres ); Stone v. Phillips, 142 Tex. 216, 176 S.W.2d 932, 933 (1944) (exception expressed in terms of a nonresident's presence when the debt was incurred, citing Wilson ); Gibson v. Nadel, 164 F.2d 970, 971 (5th Cir.1947) (exception expressed in terms of a nonresident's presence when the obligation forming the basis of the suit was incurred, citing Stone ); Wise v. Anderson, 163 Tex. 608, 359 S.W.2d 876, 879 (1962) (exception expressed in terms of a nonresident's presence when the cause of action had its inception, citing Nadel ).

Secondly, the tolling provision applies to nonresident defendants who were present in the state when the cause of action accrued. Huff v. Crawford, 88 Tex. 368, 31 S.W. 614 (1895). As in the case of the first exception, courts have continued to recognize the existence of the second exception. Wilson, 31 S.W. 618; Alley v. Bessemer Gas Co., 262 F. 94 (5th Cir.1919); Stone, 176 S.W.2d at 933; Wise, 359 S.W.2d at 879. It is this second exception which could be applicable to the facts of this case.

Generally a cause of action accrues when facts come into existence which authorize a claimant to seek a judicial remedy. Linkenhoger v. American Fidelity & Casualty Co. Inc., 152 Tex. 534, 260 S.W.2d 884, 886 (1953); Rose v. Baker & Botts, 816 S.W.2d 805, 810 (Tex.App.--Houston [1st Dist.] 1991, writ denied). " 'It involves...