law-limitations-tolling of SoL | tolling theories | discovery rule | fraudulent concealment | date claim accrued |
SoL law | statute of limitations time-barred suits | summary judgment based on limitations


Defendant's absence from the State was too brief, no bar to service of process - did not
extent deadline to file suit
The dispositive question in this appeal is whether the limitations period was tolled during each of the
approximately fourteen days during the two-year limitations period that the resident defendant spent outside
Texas.  Because we conclude that these travels do not constitute “absence from the state” as this language
from the tolling statute[1] has been interpreted by the Texas Supreme Court, we reverse the trial court’s denial
of appellant’s summary-judgment motion and its grant of appellee’s cross-motion, and we render judgment
dismissing the suit with prejudice.
Zavadil v. Safeco Ins. Co. of Illinois (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Mirabal)
tolling of limitations based on defendant's absence from state, no SoL tolling based on brief absences)
Senior Justice Mirabal     
Before Chief Justice Hedges, Justices Anderson and Mirabal    
14-09-00568-CV  Jessica Zavadil v. Safeco Insurance Company of Ilinois   
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
R. Jack Cagle    

A.        Kerlin v. Sauceda

    In Kerlin, the Texas Supreme Court was asked to construe the tolling statute, section 16.063.  See Kerlin v.
Sauceda, 263 S.W.3d 920 (Tex. 2008).  In Kerlin, (1) the defendant did not reside in Texas, either at the time
the cause of action arose or at the time suit was filed; (2) a jury found that Kerlin was not physically present in
Texas when the cause of action arose; and (3) citation was pursued through the Secretary of State pursuant
to the Texas longarm statute.  See id. at 922–24.  The Texas Supreme Court stated:

[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.  The court held that “the statute of limitations was not tolled because, under the general longarm
statute, Kerlin was present in the state.”  Id. at 928.

B.        Ashley v. Hawkins

    The parties in Ashley were Texas residents when they were involved in an automobile collision, and the
driver of one of the vehicles subsequently moved to another state.  Ashley v. Hawkins, 293 S.W.3d 175, 177
(Tex. 2009).  The Ashley plaintiff served the defendant under the longarm statute; thus, the Texas Supreme
Court was squarely presented with the question of “whether section 16.063 of the Texas Civil Practice and
Remedies Code tolls the limitations period when a defendant leaves Texas following a motor vehicle collision,
but is otherwise amenable to out-of-state service.”  See id.  It concluded 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.’”  Id. at
179.  The court held that section 16.063 did not toll the limitations period.  Id.

    The holdings in Kerlin and Ashley apply with even greater force in this case, where the defendant has
never ceased to be a Texas resident since the cause of action accrued.  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.  In light of our disposition of these issues, we do not reach
Zavadil’s two remaining issues.