                                   NO. 12-17-00344-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

DESMOND BRANDON SR.,                              §      APPEAL FROM THE 392ND
INDIVIDUALLY AND AS NEXT
FRIEND TO D.B., JR. AND L.B.,
MINOR CHILDREN,
APPELLANT                                         §      JUDICIAL DISTRICT COURT

V.

JUSTIN THOMAS IVIE,                               §      HENDERSON COUNTY, TEXAS
APPELLEE

                                  MEMORANDUM OPINION
       This appeal presents a choice-of-law question that requires the court to determine
whether to apply the Louisiana or Texas statute of limitations. The trial court decided that the
Louisiana one year statute applied and granted Justin Thomas Ivie’s motion for summary
judgment. In one issue, Desmond Brandon, Sr., individually and as next friend to D.B., JR. and
L.B., minor children, contends the trial court erred in granting summary judgment. We reverse
and remand.


                                          BACKGROUND
       On May 1, 2015, on a highway near Boyce, Louisiana, Brandon was stopped in traffic
with his two minor children. Ivie failed to stop his vehicle before it crashed into the back of
Brandon’s car.
       Brandon filed suit on May 1, 2017, to recover for personal injuries and property damage
sustained in the crash. He filed suit in the county of Ivie’s residence and in the State of residence
of both Brandon and Ivie. Ivie pleaded limitations and moved for the application of Louisiana
law to questions of liability. On August 8, 2017, the trial court ruled that Louisiana law would
govern the substantive law in the case and Texas law would govern all procedural matters.
       Ivie later moved for summary judgment contending that Louisiana’s one year statute of
limitations barred Brandon’s suit. The trial court granted Ivie’s motion and dismissed Brandon’s
action, with prejudice, on September 27, 2017. This proceeding followed.


                                      SUMMARY JUDGMENT
       In his sole issue, Brandon contends that the trial court erred by applying Louisiana law to
questions regarding the statute of limitations and by granting Ivie’s summary judgment motion.
Standard of Review
       A party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c). A trial court should grant a defendant’s motion for summary judgment if the
defendant establishes all the elements of an affirmative defense as a matter of law. American
Tobacco Co., Inc. v. Grimmell, 951 S. W.2d 420, 425 (Tex. 1997).               Once the defendant
establishes his right to summary judgment as a matter of law, the burden shifts to the plaintiff to
present evidence raising a genuine issue of material fact. Simulis, L.L.C. v. Gen. Elec. Capital
Corp., 439 S.W.3d 571, 575 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
       We review a summary judgment ruling de novo. Natividad v. Alexis, Inc., 875 S.W.2d
695, 699 (Tex. 1994). When reviewing a summary judgment ruling, we must examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. Yancy v. United Surgical Partners Int’l, Inc., 236
S.W.3d 778, 782 (Tex. 2007). We credit evidence favorable to the nonmovant if reasonable
jurors could do so, and disregard contrary evidence unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
Applicable Law
       As a general rule, questions of substantive law are governed by the laws of the state
where the cause of action arose, but matters of remedy and procedure are governed by the laws
of the state where the action is brought. California v. Copus, 158 Tex. 196, 309 S.W.2d 227,
230 (1958). When, however, the statute that creates a right of action incorporates an express




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limitation upon the time when the suit may be brought, the limitation is considered substantive.
Id. at 231.
        What is a matter of substance and what is a matter of procedure is determined by the law
of the forum state. Penwell Corp. v. Ken Assoc., Inc., 123 S.W.3d 756, 764 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied). Under Texas conflict of law principles, courts apply non-
4thsubstantive procedural rules of the forum state. See Arkoma Basin Exploration Co., Inc. v.
FMF Assocs. 1990-A-Ltd., 249 S.W.3d 380, 387 (Tex. 2008). In Texas, statutes of limitation
are procedural. Baker Hughes, Inc., v. Keco R&D, Inc., 12 S.W.3d 1, 4 (Tex. 1999); see Ellis
v. Great Southwestern Corp., 646 F.2d 1099, 1111 (5th Cir. 1981).
Discussion
        The collision giving rise to this cause of action occurred in Louisiana. Both Brandon and
Ivie reside in Texas. Brandon filed suit on May 1, 2017 within two years of the accident and
therefore within the Texas two year statute of limitations, but beyond the one year statute of
limitations applicable under Louisiana law.
        The trial court ruled on August 8, 2017 that Louisiana substantive law governed the case
and Texas law applied to questions of procedure. Nevertheless, on September 27, 2017, the trial
court held that the Louisiana one year limitations statute applied and granted Ivie’s motion for
summary judgment.
        Ivie, in his brief, provides an excellent summary of the choice of law alternatives to the
prevailing rule applying the law of the forum in procedural questions. He acknowledges that
Texas courts, as well as a majority of jurisdictions, apply the statute of limitations of the forum
state. Ivie urges that we abandon the mechanical rules of the traditional theory in favor of more
flexible choice-of-law methodologies such as the “governmental interest analysis” or the
Restatement’s “significant relationship.” As Ivie notes, these methodologies employ an issue by
issue analysis of the relevant policies and interests of each potentially concerned state. The
automatic application of the procedural law of the forum, he argues, “does not allow a
consideration of the particular facts and circumstances of each case,” and “often undermines the
interests and policies of the interested states.”
        Ivie, however, does not explain how, in this case, the application of the law of the forum
undermines the interests and policies of the interested states. Nor does he identify particular
facts and circumstances that should be considered in this case to avoid undermining those



                                                    3
interests and policies. He does not point to an interest or policy undermined by the application
by a Texas court of the Texas statute of limitations in a lawsuit between two Texas residents
involving a Louisiana collision. Nor does he provide us with an analysis of the relevant policies
and interests of each concerned state that would support the substitution of the procedural law of
the forum by the more flexible choice-of-law approach he advocates.
         As an intermediate appellate court, we are compelled to apply the established Texas law
as declared by our supreme court. It appears well settled that Texas courts apply the forum’s law
for procedural questions. Penny v. Powell, 162 Tex. 497, 347 S.W.2d 601, 602 (Tex. 1961);
Arkoma Basin, 249 S.W.3d at 387; PennWell Corp, 123 S.W.3d at 763. Subject to the Copus
exception identified previously, Texas considers statutes of limitations procedural.                          Baker
Hughes, 12 S.W.3d at 4; see Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 141
(Tex. 2010); Ellis, 646 F.2d at 1099. The Copus exception does not apply to this case. See
Copus, 309 S.W.2d at 231. Therefore, the trial court erred in holding that the Louisiana one year
statute of limitations barred Brandon’s suit against Ivie. We sustain Brandon’s sole issue.


                                                   DISPOSITION
         Because the trial court erred by granting summary judgment in favor of Ivie, the
summary judgment is reversed and the cause is remanded to the trial court.


                                                                               BILL BASS
                                                                                Justice


Opinion delivered August 22, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                                   (PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                          AUGUST 22, 2018


                                         NO. 12-17-00344-CV


                 DESMOND BRANDON SR., INDIVIDUALLY AND AS
               NEXT FRIEND TO D.B., JR. AND L.B., MINOR CHILDREN,
                                     Appellant
                                        V.
                            JUSTIN THOMAS IVIE,
                                     Appellee


                               Appeal from the 392nd District Court
                    of Henderson County, Texas (Tr.Ct.No. CV17-0201-392)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings and that all costs of this appeal are hereby adjudged against the Appellee, JUSTIN
THOMAS IVIE, in accordance with the opinion of this court; and that this decision be certified
to the court below for observance.
                   Bill Bass, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                   sitting by assignment.
