Constitutional issue:
Texas statute, which tolled limitations period in debt collection action against nonresident borrowers, who incurred the debt obligation in the state of Texas and then left the state, for as long as the borrowers were absent from Texas, violated dormant Commerce Clause, as burden imposed on interstate commerce exceeded any legitimate interest of state; statute imposed substantial burden on nonresidents, by requiring them to return to Texas to avoid the tolling, and although Texas had interest in easing difficulty of filing lawsuits against nonresidents, the Texas long-arm statute accomplished that goal, so that the tolling statute could not be justified on that ground.
Cadles of Grassy Meadows II, L.L.C. v. Goldner, 542 F.3d 437 (5th Cir. 2008).
Texas Civil Practice and Remedies Code
§ 16.063. Temporary Absence From State
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.
Note: section names or heardings are not used in interpretation. Otherwise, the Fifth Circuit might have avoided the constitutional issue.
Texas Government Code
§ 311.024. HEADINGS. The heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.
A statute's heading, however, should not be used to limit or expand the meaning of the statute. Code Construction Act, Tex. Gov't Code Ann. § 311.024 (Vernon 2005); see Brooks v. State, 682 S.W.2d 437, 438 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd).
Arias v. Brookstone, L.P., 265 S.W.3d 459, 464 (Tex.App. --- Houston [1st Dist.] 2007, pet. den.)>
Old Law:
We hold that
Article 5537 is not rendered inapplicable by the fact that substituted service is available to the plaintiff under
Article 2039a.
Defendants also argue that Article 5537, when so construed, denies them equal protection of the law. They say that since the enactment of Article 2039a, the nonresident defendant is in the same position as one who resides in the state. We do not agree. Service of process in the state will enable the plaintiff to obtain a personal judgment against a resident defendant, but that is not true in the case of a nonresident defendant who must be served under the provisions of Article 2039a. The plaintiff may not proceed to judgment against the latter by merely serving the Chairman of the State Highway Commission. Notice of such service and a copy of the process must be sent by the Chairman to the defendant by registered mail. It is always necessary then for the plaintiff to ascertain the defendant's address, and distance is one of the factors that may make it more difficult and expensive to obtain that information. Absence from the state is not an unreasonable or arbitrary basis of classification where the statutes of limitation are concerned, and it is our opinion that Article 5537 is valid as written.
Vaughn v. Deitz, 430 S.W.2d 487, 490 (Tex. 1968).
New Law:
Ashley argues that the court of appeals erred in applying
section 16.063 because (1) the statute is unconstitutional under the Commerce Clause, as it burdens Ashley's right to interstate travel; and (2) alternatively, even if constitutional, the statute should apply only in very narrow circumstances, as it is inconsistent with Texas's out-of-state service provisions.
Section 16.063 provides:
Temporary Absence From State. 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 § 16.063. We recently held in Kerlin v. Sauceda, that: “[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.” 263 S.W.3d at 927. Under the general longarm statute, a nonresident party is amenable to service through the Secretary of State, if he or she “engages in business in this state” and the proceeding at issue “arises out of the business done in this state and to which the nonresident is a party.” Tex. Civ. Prac. & Rem.Code § 17.044(b). A nonresident defendant engages in business in this state, “if, among other acts ... the nonresident commits a tort in whole or in part in this state.” Kerlin, 263 S.W.3d at 927 (citing Tex. Civ. Prac. & Rem.Code § 17.042) (emphasis added). Thus, according to Kerlin, if a party engages in business in this state, then the party's presence is established, and the tolling statute does not apply. Id. In her petition, Hawkins alleged that Ashley committed a tort in Montgomery County, Texas. Therefore, Ashley was present in Texas and amenable to service under the longarm statute.FN1
Unlike in
Kerlin, however, we are now squarely presented with the issue of whether we should overrule our decision in
Vaughn v. Deitz, 430 S.W.2d 487 (Tex.1968). In
Deitz, we held that the tolling statute, which preceded
section 16.063 of the Civil Practice and Remedies Code, applied to an out-of-state defendant, despite the existence of former article 2039a (now codified as
Tex. Civ. Prac. & Rem.Code § 17.062),
FN2 which provided for out-of-state service through the Chairman of the State Highway Commission.
430 S.W.2d at 490. In
Kerlin, we recognized that
Deitz did not address the effect of the general longarm statute, only the impact of amenability to service through the Chairman of the State Highway Commission (now the Chairman of the Texas Transportation Commission).
263 S.W.3d at 927; see also Tex. Civ. Prac. & Rem.Code § 17.062.
FN3 The general longarm statute not only provides for substituted service, but also establishes a nonresident's presence in the state for purposes of personal jurisdiction.
Kerlin, 263 S.W.3d at 927. Former article 2039a, the statute addressed in
Deitz, and current
section 17.062, provide only for substitute service, but do not define a defendant's “presence.”
Id.
Kerlin did not involve an automobile accident, so substituted service through the Texas Transportation Commission was not possible. Here, although Hawkins did not choose to pursue these options, Ashley was amenable to service under both
section 17.062 (service on the Chairman of the Transportation Commission) and
section 17.044 (service on the Secretary of State) of the Civil Practice and Remedies Code. Thus, we are presented with a conflict:
Deitz says a defendant is not “present” in Texas for purposes of the tolling statute, even if amenable to service through the Chairman of the Highway (Transportation) Commission, whereas
Kerlin says a defendant is “present” if amenable to service under the general longarm statute.
Compare Kerlin, 263 S.W.3d at 927, with Deitz, 430 S.W.2d at 490. These differing standards are unworkable and inefficient, and will only serve to create confusion when litigants attempt to determine if the tolling statute applies to their cases.
Cf. Sw. Bell Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447 (Tex.2008). (“
We adhere to our precedents for reasons of efficiency, fairness, and legitimacy ....“ (internal quotations omitted)).
FN4 Therefore, we overrule
Deitz and hold, as we did in
Kerlin, that a defendant is “present” in Texas, for 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.”
Kerlin, 263 S.W.3d at 927. In most cases, the general longarm statute will establish this “presence,” as its “broad doing-business language ‘allows the statute to reach as far as the federal constitutional requirements of due process will allow.’ “
Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009) (quoting
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007)).
Because we hold that
section 16.063 does not toll the limitations period, Hawkins was required to file suit and serve Ashley by May 31, 2005. She failed to serve Ashley by this date, so we must consider whether Hawkins exercised due diligence in pursuing service after the limitations period expired.
FN5
FN1. Ashley has not alleged she does not have “contacts with the state sufficient to afford personal jurisdiction.” Kerlin, 263 S.W.3d at 927.
FN2. Act of May 8, 1959, 56th Leg., R.S., ch. 502, § 1, 1959 Tex. Gen. Laws 1103, 1103-04 (now codified at Tex. Civ. Prac. & Rem.Code § 17.062).
FN3. This section provides:
Substituted Service On Chairman of Texas Transportation Commission
(a) The chairman of the Texas Transportation Commission is an agent for service of process on a person who is a nonresident or an agent of a nonresident in any suit against the person or agent that grows out of a collision or accident in which the person or his agent is involved while operating a motor vehicle in this state.
(b) Process may be served on the chairman in accordance with this section for a nonresident who was a resident at the time the cause of action accrued but has subsequently moved from the state.
FN4. Deitz's continuing application may also pose constitutional problems. See, e.g., Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 892-94, 108 S.Ct. 2218, 100 L.Ed.2d 896 (1988) (holding that states cannot condition limitations statutes on requirement that nonresidents appoint a local agent for service); see also Key Western Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 849 (Tex.1961) (“[I]f possible, it is the duty of the courts to construe a statute in such a way as to avoid repugnancy to the Constitution.”).
FN5. Because we hold that section 16.063 does not apply in this instance, we do not reach Ashley's constitutional argument. Nor do we consider whether the constitutional argument was waived by Ashley's failure to specifically present it at the court of appeals or in her petition for review.
Ashley v. Hawkins, 52 Tex. S. Ct. J. 954, (Tex. 2009). Note the irony of adhering to precedents. It is the Hecht court precedent which is deferred to, not the 40 year old case. Stare Decisis is Latin for "not unless I have decided it."
The word "absence" now has no recognizable meaning.
In five issues, Zavadil challenges the trial court's ruling that the statute of limitations was tolled pursuant to Texas Civil Practice and Remedies Code section 16.063. In her first and third issues, she contends that the statute is not meant to apply every time a Texas resident leaves the state's boundaries for a vacation or a business trip such that plaintiffs are given additional time to file an otherwise time-barred suit even though the Texas resident defendant is consistently available for service of process purposes. In her second issue, she argues that she was not “absent” from the state as that term has been defined by the Texas Supreme Court in two recent decisions. She contends in her fourth issue that section 16.063 violates the federal Commerce Clause, and in her fifth issue, she argues that the statute violates the Due Process and Equal Protection Clauses of both the state and federal constitutions.
* * *
Zavadil's brief intermittent excursions outside of the territorial boundaries of Texas did not affect the ability of state courts to exercise personal jurisdiction over her, for it is axiomatic that “residence in a state is a valid basis for the exercise of in personam jurisdiction.” J.M.R. v. A.M., 683 S.W.2d 552, 557 (Tex.App.-Fort Worth 1985, writ ref'd n.r.e.) (citing Bulova Watch Co. v. Steele, 194 F.2d 567, 571 (5th Cir.), aff'd, 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952)). Moreover, it is undisputed that she was at all times amenable to service. See also Tex.R. Civ. P. 106, 108 (pursuant to these rules, it is not necessary that a Texas resident be personally served within the state). Thus, under the reasoning of Kerlin and Ashley, Zavadil has not been “absent” from Texas for the purposes of section 16.063, and therefore section 16.063 did not toll the limitations period.
V. Conclusion
In accordance with Kerlin and Ashley, we conclude that Zavadil has not been “absent” from the state for the purposes of Texas Civil Practice and Remedies Code section 16.063. We therefore sustain Zavadil's first, second, and third issues, hold that Safeco's suit is time-barred, reverse the trial court's denial of Zavadil's motion for summary judgment and its grant of Safeco's motion for partial summary judgment, and render judgment dismissing Safeco's suit with prejudice.
Zavadil v. Safeco Ins. Co. of Illinois, 309 S.W.3d 593, 595, 596 (Tex.App. --- Houston [14th Dist.] 2010, , pet. for rev. filed).