SCOTx: Statute Tolling SOL During Defendant’s “Temporary Absence From [the] State” Doesn’t Really Mean What It Says

Ferrer v. Almanza
Supreme Court of Texas, No. 21-0513 (April 28, 2023)
Opinion by Justice Huddle (linked here), Dissent by Justice Busby (here)
Civil Practice & Remedies Code § 16.063—entitled “Temporary Absence From State”—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.” But what does “absence” mean, under the statute? With apologies to Inigo Montoya, a majority of the Supreme Court of Texas “does not think it means what you think it means.”

Almanza, a Texas resident, argued that limitations barred Ferrer’s claim against her. In response, Ferrer invoked § 16.063 to contend limitations had been tolled during Almanza’s temporary absence from the State to attend college in Massachusetts, bringing the assertion of Ferrer’s claim within the limitations period.

The Supreme Court sided with Almanza, affirming summary judgment on the basis of limitations. It held that, “‘absence from this state’ under Section 16.063 depends not on physical location but, rather, on whether a defendant is subject to personal jurisdiction and service. … If a defendant is subject to personal jurisdiction in Texas and amenable to service, he or she is not absent from Texas under Section 16.063.” Almanza had always been subject to personal jurisdiction and service of process even while away at school and therefore, the Court concluded, § 16.063 tolling did not apply. The majority relied heavily on two of its recent decisions—Kerlin v. Sauceda and Ashley v. Hawkins—which had reached the same result with respect to claims against nonresidents. It acknowledged that “physical location” within the state had been a requirement during much of the time § 16.063 and its predecessors had been in force, beginning back when a defendant’s physical presence within the state was necessary to the exercise of personal jurisdiction and service of process. With the advent of the “minimum contacts” analysis of International Shoe and the long-arm statutes enacted in its wake, physical presence within the state was no longer necessary. And so, the Court reasoned, defendants should be considered “absent” only when they are not amenable to personal jurisdiction or service of process.

Justice Busby dissented, unwilling to follow his colleagues’ apparent departure for the second time in a week from the Court’s longstanding adherence to a “textualist approach, which adheres to the ordinary meaning of the words enacted and leaves statutory updating to the legislative branch” and contractual drafting to the parties. The “ordinary meaning” of “absence,” he said, is the “‘fact of not being where you are usually expected to be,’ or, in a legal sense, the ‘condition of being away from one’s usual place of residence’”—a physical characteristic. “Most people who read this statute would never suspect that ‘absence’ holds the hidden meaning” engrafted by the Court, he argued. Justice Busby contended the Court’s prior rulings in Kerlin and Ashley did not control because those cases involved nonresidents who were subject to service and jurisdiction under the long-arm statute, which gave rise to their “constructive presence” in the state despite their lack of physical presence—a statute that did not apply to Almanza, as a resident. The majority rejected that argument, saying, “If the Legislature intended to limit Section 16.063’s application to Texas residents, it certainly could have said so expressly.” Of course, Justice Busby could be forgiven for thinking, on the other hand, “If the Legislature had intended § 16.063 to apply when a defendant is not ‘subject to personal jurisdiction in Texas [or] amenable to service,’ rather than when she is ‘absent from Texas,’ ‘it certainly could have said so expressly.’”
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