Medina v. Tate
| Decision Date | 09 July 2013 |
| Docket Number | NO. 01-12-00496-CV,01-12-00496-CV |
| Parties | EDDIE MEDINA, JR., Appellant v. GLORIA TATE D/B/A HUMBLE FAMILY SKATE CENTER AND HUMBLE FAMILY SKATE CENTER, INC., Appellees |
| Court | Texas Court of Appeals |
Today the Court announces a split from the Fourteenth Court of Appeals that puts the trial judges in the ten counties served by the two Houston appellate courts in a quandary: To toll or not to toll. I believe the Fourteenth Court of Appealscorrectly refused to toll limitations under section 16.063 of the CPRC for the periods of time a Texas resident travels out of state but remains subject to the personal jurisdiction of Texas courts. See Zavadil v. Safeco Ins. Co., 309 S.W.3d 593 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ). Such out-of-state travel does not constitute "absence from this state" as that phrase has been interpreted by the Texas Supreme Court and as similar phrases have been interpreted by the vast majority of other jurisdictions. I therefore dissent from the Court's holding that limitations does not bar Medina's claims against Tate; however, I join the Court in affirming the summary judgment as to Humble Family Skate Center.
My disagreement with the Court's opinion in this case arises from its interpretation of the phrase "absence from this state" in section 16.063. TEX. CIV. PRAC. & REM. CODE ANN. § 16.063. Of course, the starting place for determining the meaning of any statutory phrase is the statute itself. Section 16.063 provides that "[t]he 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." Id. But "absence"—the statute's critical term—is not defined. A well-known dictionary provides that "absence" is "the state of being absent." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 4 (11th ed. 2003)."Absent," in turn, is defined as "not present or attending." Id. "Presence," the antonym of "absence," means "the fact or condition of being present." Id. at 982.
As Justice Pope did in his dissenting opinion in Vaughn v. Deitz—a case determining that section 16.063's predecessor suspended limitations while the defendant was outside the territorial limits of Texas even though substituted service of process was available—I would answer the question of when a resident defendant is "absent" from the state for the purpose of tolling limitations under section 16.063 by determining whether the resident defendant is "present." 430 S.W.2d 487, 490 (Tex. 1968) (Pope, J., dissenting),1 overruled by Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009); see also Wyatt v. Lowrance, 900 S.W.2d 360, 361-63 (Tex. App.—Houston [14th Dist.] 1995, writ denied) ().
Such was the approach taken by the Texas Supreme Court in Kerlin. There, the Court was asked to construe the tolling statute under different circumstances than are present here: (1) the defendant did not reside in Texas, either when the cause of action arose or when suit was filed; (2) a jury found that the defendant was not physically present in Texas when the cause of action arose; and (3) service of citation was pursued through the Secretary of State under the Texas longarm statute. Kerlin v. Sauceda, 263 S.W.3d 920, 922-24, 927-28 (Tex. 2008). Important here is the Court's rejection of a strict physical definition of the word "absence" and adoption of a more metaphysical definition of "presence." The Court held, "[I]f a nonresident is amenable to service of process under the longarm statute and has contacts with the state sufficient to afford personal jurisdiction . . . then we can discern no reason why a nonresident's 'presence' in this state would not be established for purposes of the tolling statute." Id. at 927.
In Ashley, the Court overruled Vaughn and extended Kerlin by holding that section 16.063 does not toll the limitations period when a resident defendant moves to another state after the cause of action accrued but remains amenable to service of process. 293 S.W.3d at 178-79. The Ashley plaintiff timely filed the lawsuit, but failed to achieve service of process under a longarm statute before the limitations period expired. Id. The Court concluded that "a defendant is 'present' in Texas, for purposes of the tolling statute, if he or she is amenable to service under the generallongarm statute, as long as the defendant has 'contacts with the state sufficient to afford personal jurisdiction.'" Id. Thus, section 16.063 did not toll limitations.
Today, the Court concludes that we are bound by precedent that predates Kerlin and Ashley to construe section 16.063 more narrowly to require that any physical departure from the state during the limitations period not be included in calculating the limitations period.2 I disagree with the Court that we are bound by these prior holdings after Kerlin and Ashley. While the Court distinguishes Kerlin because it involved a nonresident defendant, I would place less emphasis on this distinction because the critical inquiry in Kerlin was not the defendant's residence but the defendant's contacts with Texas. In addition, Ashley uses the more general term "defendant" (rather than "nonresident") in holding that a person "is 'present' in Texas, for the purposes of the tolling statute, if he or she is amenable to service under the general longarm statute, as long as the defendant has 'contacts with the state sufficient to afford personal jurisdiction.'" 293 S.W.3d at 179.
There is no dispute in this case that Medina's claims would be time-barred absent the application of section 16.063 because he filed suit one day afterlimitations expired. To distinguish Kerlin because it involved a nonresident defendant creates the anomaly that limitations against a nonresident doing business in Texas may expire before limitations against a Texas resident. For reasons explained below, such a result is contrary to section 16.063's purpose of protecting Texas residents. If the Texas Supreme Court refused to toll limitations in Ashley when the suit was timely filed but untimely served (without a showing of diligence), then it is even more compelling that limitations should not be tolled when the suit was untimely filed because Tate's absence from the state did not prevent Medina from filing suit earlier.
Not only are Kerlin and Ashley binding precedent that superseded this Court's prior construction of section 16.063, they also are consistent with section 16.063's purpose. The first "absent from the state" tolling statute was enacted in 1841 to protect Texas creditors from individuals who entered the state, contracted for a debt, and then absconded from the state to escape that obligation. See Ayres v. Henderson, 9 Tex. 539, 541 (1853); Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 722 (Tex. App.—San Antonio 1998, pet. denied) (); Wyatt, 900 S.W.2d at 362 (); Gibson v. Nadel, 164 F.2d 970, 971 (5th Cir. 1947) (). Thus, the tolling provision addressed immunity from process and judgment issues and reflected a legislative policy decision to favor plaintiffs (normally Texas residents) against a nonresident defendant. The Court's construction here does not further these purposes because there is no dispute that Tate did not abscond to a foreign jurisdiction and was amenable to service of process during the limitations period.
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