Liptak v. Brunson
Dallas Court of Appeals, No.05-11-01209-CV (June 7, 2013)
Justices Bridges (Opinion), O’Neill, and Murphy (Dissenting)
Section 16.063 of the Texas Civil Practice and Remedies Code provides: “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.” In this intersectional collision case, Liptak filed suit two years and two days after the accident occurred. Although it was undisputed that the defendant Brunson, a Texas resident, was absent from the state for more than two days during the period between collision and lawsuit, the court of appeals affirmed summary judgment for Brunson based on limitations. Justice Murphy dissented.
Liptak and Brunson were involved in car wreck on July 11, 2008. Liptak was injured. He did not file suit, however, until July 13, 2010, two days beyond the statutory limitations deadline. In discovery, Liptak established that Brunson had been absent from the state during the two-year limitations period for brief spurts totaling eleven or twelve days—i.e., more than the two days by which Liptak had exceeded the statutory limitations period (although discovery also revealed Liptak was not aware of Brunson’s absences until after the lawsuit was filed, and that those absences did not interfere with his filing suit or serving Brunson). Nevertheless, the trial court granted summary judgment to Brunson on limitations grounds, rejecting Liptak’s argument that under section 16.063, the limitations period had been suspended or extended by Brunson’s temporary absences from the state.
Liptak and Brunson were involved in car wreck on July 11, 2008. Liptak was injured. He did not file suit, however, until July 13, 2010, two days beyond the statutory limitations deadline. In discovery, Liptak established that Brunson had been absent from the state during the two-year limitations period for brief spurts totaling eleven or twelve days—i.e., more than the two days by which Liptak had exceeded the statutory limitations period (although discovery also revealed Liptak was not aware of Brunson’s absences until after the lawsuit was filed, and that those absences did not interfere with his filing suit or serving Brunson). Nevertheless, the trial court granted summary judgment to Brunson on limitations grounds, rejecting Liptak’s argument that under section 16.063, the limitations period had been suspended or extended by Brunson’s temporary absences from the state.
The majority of the court of appeals agreed with the trial court. Invoking precedent from the 1850s as well as more recent case law, the majority observed that section 16.063 “was written to protect domestic creditors from individuals who enter Texas, contract a debt, depart, and then default on the debt.” So, the majority said, “in the absence of a debtor/creditor relationship, section 16.063 does not apply.” And their decision was bolstered by a recent decision from the Houston Fourteenth Court of Appeals, in another car wreck case with substantially identical facts, which also held section 16.063 did not toll limitations based on “a Texas resident’s brief intermittent excursions outside the territorial boundaries of Texas.” Zavadil v. Safeco Ins. Co., 309 S.W.3d 593, 596 (Tex. App.—Hous. [14th Dist.] 2010, pet. denied).
Justice Murphy dissented, relying largely on the seemingly plain language of the statute and its title, “Temporary Absence from the State.” Whatever a court may have concluded to be the statute’s original purpose, she reasoned, its language now seems clearly to apply to temporary absences from the state by Texas residents in cases like this one. Therefore, she said, “it is solely the legislature’s province to repeal the statute.”
